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CASES ARGUED AND DECIDED
nr ran
SUPREME COURT
UNITED STATES
9. 10. 11. 12 PSTERS.
BOOK 9.
LAWYERS' EDITION
COHFWn With hud Lnna, Head ndtds, Statbmentd or Cases, Points and
AOTHoaiTm or Counsel, foot Notes and Pabauxl bcfebsncbs.
STEPHEN K. WILLIAHS, LLD.
LAWYERS CO-OPERATIVE PUBU8HING CO»A|lT(~"Qncj|e
ROCHESTER. NEW YORK ' ^ ^' o
THE LAWYERS CO-
.dbyGoogle
GENEEAL TABLE OF CASES EEPOETED
IN THIS BOOK.
OASES BEPORTED IN VOL. JX.
VlfVM nMr to HanliMl ncnTOi Id mpaetlT* TOli.|
>diMi^ Ufa mai FIra InnmnM Camrnxf
of Hew York t ■
Aduu, Ufa Knd Fir* luuraDM ConpMir
mt Naw York t C
B.
BaHer, Tha Dnltad SUtaa v. t
Buler, The Unltad BUtM V. £
Bftllon, HiriBrt t I
Buik af AlaxudrU t. Swaan,
Bank of Georgia t. Hiniobottom
Bask of tba Unltad %ataa r. Wuaener
•t .L, 8
Baaid at aL ▼. Rowan, S
Bean al «L v. Bkwditoii, a
Birtb, Oraenlaaf v. 2
Bofca^ Kuentora r. Qnmdj, 2
BradleT t. The Steam Aeket Gompanr,.. H
Brig Bnrdatt, Tbe nnited Statee, v S
Briaeoa et aL t. 'Dm Oommonwealth'a Bank
ofKantncky I
Browa t. Bwaaa,
a.
CUdwaO et aL T. Ckrringtoii'i Hdrt, I
Oairingtoit'i Halra, Caldwell et al. t. I
Chapaiaii, Fenwlek t <l
Cbtaapeake and Ohio Canal Company t.
Knapp et al., t'
CbootMu'i Heln r. The Unitad Statea i:
Otootaaa'a Hain t. Tbe Unltad Stataa,. ... li
Qtj al Maw Orlaana t. Da Anna* and
Oaeolltt, E
atjr of New York r. lOla I
Chrfco, Tbe UnHed SUtaa V. It
OiHMaawaalth'B Bank of Kantneky, Brte-
aea at al. r. I
Onbaa T. Walton at nL, •
IX
DTAjM at aL, Urtetiqid t. «
Da Amaa and Caeolfn, Tha QAj of New
OrieaiM y E
Oi^— T. !%• Dmitad Stataa, li
K.
^■^uttWOma, K
t Si. ««
r.
Fenwiek t. Chapman, Ml
Field et aL*. The United SUtea, 18t
a
Greenleaf t. Birth, 2n2
Qrundy, Boyce'a Executon * 27S
H.
HarrlMn et aL t, ITixon 483
Hauf hton. Been et al. v 329
Higginbottom, The Bniik of Georgia v 4B
Hiriart ». Ballon. IM
Huertaa, The United SUtee v 171
Hull, Owing* » 807
K.
King's Bein et aL t. Thomponn ct iix., 2M
Knapp et al., The CbeBapeake and Ohio
Canal Company t. HI
L.
Ufa and Fire Imuratiee Company of New
York T. Adam* 571
Ufa and Fire Ineuranee Company of New
York V. Adanu, BTS
LiringBton T. Story, 032
Uoyd, Bcott T 4ia
M.
Uayor, ete., of New Orlean* t. De Armas
and CucnIIu, 224
BAayor, et«., of New York t. Miln, BS
Milbnrn, Ei -parte 704
Miln, The Msyor, etc., of New York v. S5
Uitehel et al. T. Tbe United SUtes 711
H.
Nixon, Harrison et al, » 4M
Noune, The United SUte* r. •
a. :zocoy Google
Owinga T. Hnn, W
Seott ». Llojd 4!8
Smith T. Trabue'* Heirs 4
8t««m Puket Company, Bradlef t. 107
Story, Livtne<ton v 632
Swann, Th« Bank ot A1exuidri» r. S3
Swann, Brown t 1
Tarvar t. T«rvM et k1., 174
Thompion et u:i., Klnf^a Itdn at •!. v 204
TrabM'a H«ln, Smitb t. *
United States, dumteanli Haln r. in
United SUtM, Chontaan'* Hain v. 147
United SUtaa, Delauna t. 1)7
United SUtea, Hdd et a), r. 18S
United SUtea, Mtehel et al. r. 711
United SUtee t. Bailey, tU
Unlt«d SUtei T. Bailey, 287
United SUtea t. Clarke, 10>
United SUtea t. Hnertaa, 171
United SUtea r. Nonrae, 8
United BUtea t. Rabcaaa, SIB
United SUtea v. The Brif Bwdatt, 082
Urtetlqnl r. lyArbal at al, 682
T.
VVttbr at aL, Flatt ▼. «W
W.
Wanener «t aL, Bank ^ tha Dnltad
Matet T. aTS
Walton et al., Ooulaon ▼
Wlu at aL 1
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OASES REPORTED IN VOL. X.
All«B, Wklllngirord r.
AnB«t«ad, MiMomb et ftL T.
Aahtna, JaelcMHt at ■!. t.
R
Bank of Hmmt PlcmMot, Sprigg *.
Bult of the United SUU*. VoorheM v.. . .
Bank of WuhingtoD, Brent v
BmI, Diekini *.
Bentlj, Pet«r t.
■fSB* «rt ml^ Ringo ei bL t.
Boom t. Chile* et «1
Bndn, D«tU t
Bndley, The United Statu v.
Bnat V. The Bftuk at Wuhingtoi^
Bnmrn w. SwMin,
a
Owlns at al^ The United Btotw r.
Chiles et >L, Boone t
atj of New Orleuu t. The United Stftteo, 062
Qvke V. Kowaalv, 6fiT
CiMk. Keeoe t. 291
ColnmUn Inaunmoe OompMir of Alexnndrtn
T. Lawresoe 60T
Grower. Bud^ SaS
D.
D«Tb T. Bnden, S86
Denn r. Reid 524
Dick et mL, Lee t. 482
Dickina r. Beal 672
Dragui et a1. t. Hobart et el., clumsnte of
the bHg Hope, 108
Dubois, iMMe T. Eepbnrn, 1
B.
EUleott T. Feul, 41S
EUMt, Hknii et aL v. 2fi
ElUaCt ▼. Bwutwottt, 1S7
F.
Fenumdes et eL, The United StatM T. SOS
F<riMa,HnguT. 160
a.
Oadeby. StuhT t. S21
Gudner, The United SUtee V. 618
Olhena r. BItm 2BS
Orod, Hnydel r. 283
H.
Hnfia T. FateoB, 160
Hapa ▼. Lneaa, 400
Rarrie et aL t. Elliott, tl
Hewkfn's Hein et al.. The United SUtee t. lU
Haydel v. Gfrod 281
Hepburn, Dubois, Lessee w 1
Hobart et ■!., claimants of the brig Hope,
w. Drogan et al., 108
Hooka et al. w. Unton, 107
J.
Jackson st aL t. Aihton 480
Jackson ex dem. 'ilie Bank of the United
BUtea, Voorhees t 441
E.
Keens t. CUrk SOI
Kownslar, CUrko r. 657
L.
LawreBM, The Columbia Insurance Com-
panj of Alexandria * S07
Lee y. Dick et al 482
LeUnd et al. t. Wilkinson 204
Linton, Hooks et al. *. 107
Lucas, Hagaa t. 400
IL
Maeker t. The United States, 840
MTearn v. MTellan 620
MXellan, M'Learn t 62S
Macomb et al. *. Annatead, 407
Monland, Tucker at al. t. 68
H.
New Orleeni t. The United StaUs, 662
Nizon, Parker et al. v 406
O.
Owings et al. v. Neman's Lessee, C4
Owiugs, T. Tieman's Lessee, 447
P.
Packer et al. r. Nixon, 40t
Pearl, Bllicott t. 41S
Peter*. Bevsrlr, 6*2
R.
Randcll, a«wen *. S68
Randell, Shoemaker r. 308
Reid, Denn v. S24
Ringo et al. t. Bions et al., 260
Rives, Oilman v. 208
&
Begul, The United SUtes *. . ..>. ^.^.'.\ 1'^ I '^
Setoa, The United SUtes T. lOt
0hoMMk«T V. Randrll
SibUld, The Unitfd ^taUa t St3
Smith, V«ntrei rt ■1. *■ 181
Smith T. The United Statea. S2B
Smith V. VsuRhan at al SSfl
SouUrd'a Hefn v. Th« Unilnl Stalca, .... 100
Sprigg T. The Bank of Mount PIcaaant, .. UT
Btanley v. Qadiby GSt
Swmnn, Brown t 407
Swsrtwout, Rlllottv. 1ST
Bwwrtwout, Ttuj at bI. v aO
Tleraan'a Leawe, Owinga et a1. t H
Tieman's Leaaee, Owing* v 447
Tracy «t al. t. Swartwout, BO
Tneker «t al. t. Moreland U
V.
United SutM, Mackey t MO
United Statea, New Orieana t. 062
United SUtei, Smith v 320
United Statoa, Soulard'a Hein t. 100
UnltMl SUtei 1
Unitwl SUtw r. OwirN et nl... .
United SUtoB -r. Farnandea at «L, 303
United StatM v. Gardner, aiS
United SUtM r. Hnwkin'a Hdn et aL 12B
United SUte* T. Segul SOA
United SUtM T. Seton »•
United SUtM w. Bibbnid, aU
United SUtea. Watnor* t M7
UnlUdSfaUea, Wbanr at aL v. t»
T.
VauglwB atnL, Smltk r. IN
VentrM at nl. t. Smith Ul
VoorfacM T. Jaekaon, ex dam. Tba Bank of
Tha United SUten, 4M
W.
Walllngaford v. Allen SS3
Watmore v. The United SUUa BtT
WhfliTj et al. V. The United SUtea, 338
WUUnaon, Lalnnd at nL T. 2M
Patsn 1*.
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OASES REPOnXED IN TOL. XL
BwMt. Ewlng'* LaMM r. 41
■Mmm at kL t. TIm Prerident, DiTwton
•ad CamiMii7 of the Bank of Um Com-
MBWMlth «r Kratadtf, Sff7
a
Ob^ Tka Unlt^ BUtM * Itt
Kwiag^ LeMM ▼. Bninet, 41
Kvu« T. Om, 80
F.
Pnttni^ Tba Ship, The DnlUd SUtM r. . . 73
flMfK^ loMM, FOOU «t «L «. 185
a
OwoaM, The BMp, Tie United StetM T. . . 73
Qm,mnmw. 80
H.
BunMod, Allen T. 83
Bmf, IfBridi ▼. 1S7
J.
Jadaia ▼. Aaktoa, tSO
L.
L^kr, The UnlUd 8UU« T. 86
KMaptoa ▼. Sbtfjr, 351
M.
Ifatktrt lamtt T. Silk Md irDotuJd, .... 1
mOekcB T. Webb et >!., S6
H»7w, AMenaea sad OemnoiMl^ of the
aty of New York t. MIIb, !M
ITBrideT. Hoey IB7
MMMchoMtta. The ai«U < The 8UU of
mi mil Uud w. 8BB
Paetmaater-Oeiienl of the United StatM t.
Trigg, Admlnlttnttn- of Rector, 173
PhoBbue, The Steunboat Orleena r 173
Poole et ftL V. Tb« Leieee of Fleeger 181
Prerident mud Dlrecton of the Bank of the
OommoD wealth of Kentnokf r. Brle-
eoe et al SB7
Praprletora of the Owrlee Rlrer Bridge t.
The Warren Bridge, 480
R.
Rhode lalud. The 8Ute of, w. The State of
Meieaehntette, 220
&
Snk and ITDonald, Uarlatt'i Leuee r. 1
Steamboat Orlean* t. Phabiu, ITS
Storj, liTlngeton t. 331
T.
Trigg, Adnlnbtrator of Rector, The Poat-
maiter-Oeneral r. 1T8
U.
United Btatce r. The Ship Oaronne 78
United State* v. The Ship Fortune, 73
United SUtea r. Leffler, 88
United SUtM V. Oox, 188
T.
Temde T. Wadleigh et aL, 35
W,
Webb et a1., ITUIeken v. S8
Wadlelgfa et al., Veada v. B6
Waten t. The Uerehanta' LonlarlUe Inanr-
anoe Oompany tlS
Warren Bridge, The Proprietors of. The
Pnprietora of the Cbartea Blver
BJld«e V. 488
OASES REPORTED IN VOL. XO.
Adami, Cannlngbam ;
vin JouM r
AfoxMidrJA Canal Oompanj, TIm Maror,
Recorder, Aldermen, etc^ <rf the Qtj
of Georgetown t
Arredondo, FemBBdo d« l» feUxa, MoaM
B. Lery t. B
Aoehinclow t, Co., Benjamin R. Ljon v.. . . t
Bank of the United 8Ut«a v. Daniel et a1^ IS
Batchelder, Jame* at al., N. Roger* &
Sou V E21
BeaatoD, George, Oamlahee t. The Farm-
en' Bank of Delaware, 10£
Benton, Nathaniel S. Attorney of the Unit-
ed StatM y. Helwicthon T. WooTmt
etal., n
Bradlie, laaae et al. t. The Maryland la-
■uranco Company, STB
Braditreet, Martha, Anson ThomaB r. 68, 174
Brashear, Walter, Francii Weet et al. *... 101
Burke, Robert D. et al.. The Leaaea of
Gabriel Swayw at ox. v 11
a
Oarrotl, John, John ITKenny v. W
Carroll, Daniel, Beulah Steele t 201
Chotean, Pierre, Senior t. Marguerlta, a
Woman of Color, 007
City of lA Fayette, Shield* et al.. Ex -parte
Emily T. and Matilda Poultney * 472
Clarke, John H., Adm'r. r. Henry Uattha*
ton et al., IH
Clarke. Joseph 8., et al. t. William G.
White 178
Coomba, tawrenoa, Tha United Stataa *. 72
Dantet «t al., Tie Bank of tha United
StaUa ». «2
Deli^Kpine'i Heirs etal.. The United StateaT. 6M
Douglass et al., Reynolds et al. t 487
Dubois, lessee of Wolcott, Andrew D.
Hepburn t MS
F.
hrnera' Bank of Delaware, George Beaa-
ton. GamiKhec t 102
Finley. Henry R. et al., James Oallowaj t. 2M
Franklin and Wife, John Zacharle et ux. t. ISl
■draw D., t. Jacob Dnbob,
Lessee of OliTer 8. Woleott, I
Holbiook, Lowell, John HVeil r.
3.
Jenkins et aL t. Sarah U. Pyc et aL, 2
Jonea, CalTin, Adams, Cunningham A Oo- ▼. 8
KandaB, Amos, Paatmaster-General, t. Tha
United SUtea, on the relation of mi-
liar B. Btoke* et al I
Ringaley, Zcphanlab, The United SUtaa v. 4
L.
I«ub, Andrew N., The United Stfttes t
Ijee, Samuel, Manuel Garcia t. t
Lery, Moses B., t. Arradondo et al., 2
Life and Fire Insurance Company of New
York, The Heirs of Nicholaa mi-
son » I
Uoyd, John, Charlaa Seott, Bailiff of WU-
llam B. Moore T 1
Lttcaa, John B. C, Daniel F. Strother w. 4
If on, Banjamin R., Anehincloaa A Co. v.. . 8
Marguerite, a Woman of Color, Fteire
Chotean, Senior t. S
Maryland Iniuraaee Company, Isaac Brad-
lie et al. t a
Haasaehusetta, The Commonwealth of. The
SUte of Rhode Island t B57, T
Uatthewson, et al., Adm'ra. John H.
Clarke t. 1
Mayor, Recorder, et«., of tha City of George-
town T. The Alazandria Canal Com-
MIIU, ^ra'of WilJiami The'United States
». £
HtUnney, John t. John Carroll,
MTfeil, John T. LoweU Holbrook,
Poultney, Emily T. and Matilda, Ez-parte,
T. The aty of Lafayette, Shields et al., 4
Fye, Sarah I£ at aL, John J. Jenkins et
alT. a
B.
Reynolds, Byma and Farraday r. Sougtasa
et al., 4
Rhode Island, Tba State of r. The Com-
moBwealtb of Haaaaehosatta, 617, 7
B«Cera A Bona t. Jiunea Batebddar et al.,. . 8
Su«licH, HwKfd, r. The Dnlted Statw,. .
Seott, Bulifl of William a Hoore t. John
Lloyd,
SibbiJd, Ex-pute, v. The Unitad BUtea, . .
Sprague, Horatio, Henry Toluid t
Stoale, B«uUh t. Dulel Cnrroll,
Sttny, Ez-parte, in the matten of Lonlui
LivingBton, Ezeentrix of Edmrd Ur-
ingitoo, decekwd
Strotber, Oniilel 7. v. John B. C Lueu,
Swmyze, Lewee of Gabriel and Uary hli
Wife, r. Bnrke et aL,
ThotnAi, Anaon, Hartba BraJetreet T.
Tcriaud, Henry t. Horatio Sprag^e, .
Turk, mram, et aL t. Jantea White, .
Dnlt«d SUtee, Plalntiif In Error v. Andnw
N. Laub
[Jnited States t. Lawrence Goombe,
United SUtai t. Edward Banhett,
• lb a^
United SUtea t. WUHam HHU' Hdn,.... SU
United SUt«i t. Zephanlah Kingdey, .... 470
United SUtaa, Slbbald Ez-parta, r. 488
United States on the relation of Wmam
B. Stoke* et al., Amoa Kendall, Poat-
maater-General, r. 824
United SUtea w. Delea^ne'a Hdn at aL, ■ ■ K4
Weat, rranda, et aL r. Walter B
White, James, Hiram Turk et al. t. 2
White, Witiiam, Q. W. Joseph 8. Oarke
et al. T. 1
mtson, Tha Heirs of Nicholas t. The Ufe
and Fire Iniurance Co, of New York.. . 1
Woolaey, Helancthon T. et al., Nathaniel S.
Benton, Attorney of the United SUtes
for the Northern District of New
YorkT
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REPORTS
CASES
ABQUED AKD ADJUDGED IS
Supreme Court of The United States,
m JANUABY TERM, 1885.
BY RIOHAKD PETERS.
D,i,i,zodb,Google
vol* IX
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JUDGES
SUPREME CODRT OF THE UNITED STATES
DUBINO TW» TOSM OF THESE EEFOBTS.
Ih« Hoit. Jomr UiBaHAU, Chief JiuUo&
The Hon. JoexFH Btoit, AmocUU Jiutiofc
The Hon. BuiTB TROicrBoit, AMoelate JuittM,
The Hoit. John HTx&n, Aeeoetat« Juetiee.
Tb« Hon. Hknit Baldwin, Aeeocfete Jnetioa.
The Hon. Jahbb H. Watkb, Asaoc!»tc Juetlofc
SbMAmut V. BoTLXB Seq., Attonier-GeiMnU.
n» Bob. Oehriel Durel redraed Ml office of Jtutloe of the Snpnme Court MiriT In Jkmi
aiT, USSw
Mr. Jtutlee Warne wu Kmolnted on the Mh d*T of Juiitery, ISSfl, In the plwie of Mr. Jtv
Ifai Mhamm, JeaeMii. Md look hie Mkt on the Uth dv of Juiurj, USS.
.dbyGOOgIC
MR ,nTSTIOE JOHNSON.
ORDER OF COURT.
Mr. Batler, the At tome j -General of the
United Statn, having moved the court, in pur-
suance of the third reiolve contained In the
nibjolned proceeding* of the bar and oSicen of
thli court, to have laid proceeding! entered
oa the records of the court, Mr. Chief Jus-
ttee Marahall remarked as follows: "^he seo-
timents of respectful affection just expressed
for our deccBBcd brother, are most grateful to
myself and to all ay brethren. We, too, condole
imh you; and in ordering the resolutions to
raeorded, wc indulge our own feelinn not leas
than the feelings of those who make the ep-
Whereupon, it it coniidered and ordered by
the court, that the said proceedings of the bar
and officer! be ent«red upon the minutes, and
which are a* follows, to wit:
% meeting of the members of the bar of
Court room In the dtj of Washingtoi
day, January 12tb, 1836.
"Benjamin F. Butler, A ttomej -General of
the United Statea, was appointed chairman, and
Richard Peters, reporter of the eoiui, waa ap-
pointed secretary.
"On motion of Mr. Jonee, the following reso-
lutions w«Te unantmouslj adopted:
The Eon. Wililam JbboMm, Sarfar As-
sociate Justice of the Supreme Oonrt of tha
United States, having departed this life daring
the late vacation of tne court, and the memfaon
of this bar and the offieera of the court, enter-
taining the moat grateful and lively reinein<
brance of his embient talents and learning
and of his many and shining virtues as a judge
and a man, *and lamenting his loas with [*Vi
a sincerity and depth of fseling omresvMid-
ing with their esteem for the public aM vrl-
cate character of the deeeaaed, have resolTadi
"That, a« a tolcen of their aantimanta, thajr
will wear the usual badgs of mourning during
the residue of the term.
"Resolved, That the cliaimuui cowmnnleat*
to the bereaved family of the deceased the *••
teem and consideration In which the virtue*
and talents of Mr. Justice Johnsoa were held
\n tha bar and officers of this oonrt, and sasure
them of their sincere sympathy in the loaa
which thev, the court and the country hava
snstalned in hia death.
"On motion of Hr. Ogden,
"Resolved, That the Attorney -General, In be-
half of the bar and officers of this court, do re-
spectfully move ths court that the foregoing
resolutions may be entered on the minutaa u
the eonrt."
I where a writ of error «
«!•)
the commencement of ths term, it shall be the
duty of the plaintifT in error or appellant, aa
the caaa may be, to docket the eause and flie
ths record thereof with the olerk of thia court
witliin the first six days of the term. If he
shall fail BO to do, the defendant In error or ap-
pellee, as the case may be, may docket the
eause and file a copy of the record with the
clerk, in which case it shall aland for argument
at the term, or at his option he may have the
eause docketed and dismissed upon producing
a certifieate from the clerk of the court where-
in the judgment or decree was rendered, stat-
ing the cause, and certifying that such writ of
error or appeal had been duly sued out and al-
lowed.
•RULES OP COURT.— RULE NO. tt.
2. No writ of error or appeal shall be dock-
eted, on the record of tlie cause filed by the
Slaintiff In error or appellant, after the first six
ays of the term, except upon the tcrma that
the cause shall stand for argument during tha
term, or h« continued, at the option of the de-
fendant In error or appellea. But in no caaa
shall the plaintiff in error or appellant be en-
titled to docket the causa and file the record,
after the same shall bare been docketed and
dismissed In the manner provided for in the
preceding rule, nnleea by order of the eonrt, or
with consent of the opposite party.
S. In all eaaaa whers the eauae shall not be
docketed and tha record filed with the clerk by
either party, until after thirty daya from the
commencement of the term, the cause shall
stand continued until tha next term.
ALLOTMENT OF CIRCUITS.
nil*] *Thera having been an appointment
made of an Associate Justice of the Supreme
Court during the present term. It is ordered by
the court that the following allotment be made
of tbf Chief Justice and the associate justices of
Ike Supreme Court among the drcults, sgree-
ably to the act of Congrees in such case made
and provided ; and that suoh allotment be en-
tered of record, to wit:
For tha First Clrealt, tha Hon. Joaerii
Story.
f
For the Saoond Clrenit, the Hob. Bmltli
Thompson.
For the Third Qreuit, the Hon. Henry Bald-
win.
For the Fourth Cbenlt (none, there being m
vacancy).
For ths fifth Oreuit, the Hon. John Uanh-
all. Chief Justice.
For tha Sixth Qroult, tha Hon. Jamaa H
Wayne.
For the Sarantk Orndt, tka Eim. Joha
H%eM.
BEFEBENCE TABLE
w BOOB funs
DECIDED mV.&. SUPREME OOXTBT
iunuj Term, 1836r
VOL. 84.
0 PETERS AND IN U OURTIS'S DECTSrONa
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693-096
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696-698
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716-718
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781-724
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266
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THE DEOTSIOITS
Supreme Court of the United States,
JANTJART TERM, 1835.
TLtZi. BBOWS, Appellant,
Aa WPMl to tb* BnprimB Conrt doct Dot 1
fnm ft decre* at tba Circuit Court ni>kins an t
JoBctlon p>rpct[i«l, ■.nd luTlDg tome matteri i
■enmnt apea tor furtbcr nmilderettoi], upon wbli
tba putla ««at on to tak* fnrthM praof. T]
d«an pupatokUns tba laJunctloD ww oat • flu
APPEAL from tlw CIrenIt Court of tb« nnit-
cd Btfttaa for tb« County of Alozvidiia in
the Diftriet of OolnmlilR.
* Aul* dacraa in the eue in the Cirauit Court
Tba ^pallAta Ued their bill la the Oinmit
Oavt OB the Elit of Norembar, lB2fi. An in-
Jnnetfan «m direetad on tba flUng of the bill,
wUeb WM afterward* In part dluolred. Sub-
■*] aaqnaatlT *Ui« InJuDctlon waa altoBether
dtaaolrad, and farther proceedinga being had In
tlw eaaa, tba oourt, on tba Sd day of Decamber,
ISSS, made tb« following decree i
'And now here at thia day, to wit, at a
aaort eontlnDed and held for the diatriot and
wxintj aforeeaid, the Sd day of December, 1832,
fine tba partita aforeeaid, by tbair aoUdtora,
aad thia cbom baving been aet for tiearing and
d«ene 0a the Ulla, aaawen, damnrrer erf de-
fendaat, azhihita and dapoaitiona, aa heretofore
atated In the proeeeding* lieraia, and now com-
ing on to be beard, it la the opinion of the oourt
that the law on tba dantnreis la for tb* eom-
utd deeread that tha demurrer be orerrul
It la fnrtber the opinion of the oourt that the
- ' ' t baa fully anatained the charge of
■ br her in ber UIl againat the de-
t, In reUtlon to the loan therein atated ;
(or a part of wbkb loan the jndgmMit at taw
biratofora enjoined hy the order of thia court
In tUa eauB* waa obtalaed; and that under the
prorialona of the third Notion of the atatute to
■■■I J tht aot entitled an act againat uaury, the
Hon, — Jailadlctlan- What deereei are lo tar
■■al a* to allow appeal to Bupnine Court thcTeoD.
Eaaotaata 4 L. edTc. 8. S7; B I. td. D. 8. MI:
9 I^md.
defendant !• entitled to reeaiTe no more than
the principal aum by her lent, and I* liable to
the payment of the coeta of thia suit. And it
appearing to the court, aa well from the admta-
Hion of the defendant, aa from the prtmf made
by the complainant, that of the aum of tE,300
loaned by the defendant under the aaid uaurioua
contract, the complainant and her intestate hare
paid tha aum of «1^S0.30, leaving of the prin-
cipal money loaned the aum of |MB.70 unpaid;
and the court not being satiafied aa to the pay-
ment of the farther aum of ISO, for which the
complainant claima credit. It ia thereupon by
the court adjudged and decreed that the injunc-
tion heretofore awarded the complainant be
perpetual, except aa to the aaid aum of $940.70,
of which aum the defendant ia at liberty to pro-
ceed under her judgment for the aum of •HMX-
TO; and on the complainants notion, for
reaaona appearing to the court, thia cauaa la
emitinued for further eonaideratlon aa to the
said aum of (60, part of the credit claimed Iqr
the complainant.
"From which decree the defendant prays an
appeal to the Supreme Court of the United
Statea, which la granted, on her giving bond
and security 1
approved by one of the
went on to take depoeitlona under the author-
ity of the Circuit Court, which were filed in
that court; and on the 16th of May, 1833, the
Circuit Court made the following decree:
"And afterward!, to wit, at an United
Statea Qreuit Court of the District of Colum-
bia, continued and held for the county afore-
eaid, the IBth day of May, 1633, the depoei-
tioDa of Richard B. Alexander and Alexander
Moore, taken under a commiaaion issued in thia
case, having been returned and filed, and thia
cauae now coming on for final hearing aa to
the credit claimed by the complainant for the
sum of $60, her right to which was reierved
for consideration 1^ the terms of the decrea
heretofore pronounced 1 and it being the opin-
ion of the court that the complainant Is, tmder
the proof offered, entitled to the stud credit, it
Is now here by the court decreed that the In-
Snction heretofore awarded the complainant
perpetual, except as to the sum of $899.70,
aa to which the defendant is at liberty to pro-
ceed on her Judgment at law; and it ia further
decreed that the defendant do pay to tbe com-
plainant her coat* tn thia auit, to be tuad hj
tbe otork."
at
Bonciix CouBT or thi Ukitbi Statm.
Hr. Joan, contn.
Mr. Chief Justice Hanhall delivered tbi
opinion of the court, diBmisBing the appeal with
costs; because the sppeal was panted before
there wu % dnal decree in the case.
On appeal from the Circuit Court of the
United States for the District of Columbia,
hotden in and for the County of Alexandria.
On consideration of the motion made in this
cause yesterday by Mr. Edmund J. Lee, of
counsel for the appellees, to dismiss this cause,
because the appeal was granted before there
waa ■ Anal decree rendered in the court below,
and of the arguments of counsel thereupon,
had as well for the appellant as for the appel-
lees; it ia now here ordered, adjudged and de-
creed by this court, that this appeal be, and the
same is bere|>j diimiBsed with costs.
their next friend.
Jurisdiction— writ of error to judgment award-
ing restitutioTi in an action of ejectment.
JnrlsdletloD. The Judicial Act antborlses the
Snprrme Court to Issue writs at srror to bring up
aUT flnal JudgmenC or decree la > clTll action or
■nft Id equity, depeadlag Id tbe Circuit Court, etc
But, a Judgment nwardiDi B writ of restitution la
an action of ejectaieut. where, In tbe tiecatloo of
a writ of habere facias poneHlonem. the itierlff
bad Improperly turned a person out o( poascMloD,
fs not a nnal Judtcmcnt In a cItII action ; It li no
■core than the BctlOD ot a court on Its own procen,
which IB submitted to its own discretion. This
court lakes no Jurisdiction la such a «aaa.
IN error to the Circuit Court of the United
States for the District of Kentucky.
In the Circuit Court, the defendants in error
aied a petition in May, 1830, setting forth that
on the demise of Richard Smith, an action of
ejectment was instituted in the Circuit Court
against Richard Penn, with notice to Hiram
Bryant and William Bryant and others; that
the Bryants were tenant* to the petitioners and
to Robert Trabue, who appeared to the eject-
ment, bad his teiianta entered as defendants;
and a judgment was rendered at May Term,
1828, a^inst them. No writ of habere facias
pOBseMionem was issued on this Judgment; and
at Kovemher Term, IBIS, a judgment was
rendered against other tenants, and on that
judgment a writ of habere facias possessionem
was issued, and the marshal of the district of
Kentucky, under this last jud^ent and writ,
turned out of possession John Erans, who Wat
a tenant of the petitioners, resident on the
•auie place occupied by the Bryants when the
At May Term of the court In 1S30, a motton
was made in behalf of th« petitioners, and a
rule awarded on Smith, the plaintiff In ma
and defendant in the petition, to ahow eanM
why a writ of restitution should not be awardad
to them, to restore the possession of the tiBS-
ments held by their tenants, John Evana and
others, taken from them by the marshal, on
'the writ of possession mentioned In tbcdr [*ft
petition. The marshal's return showed tkat ha
had turned John Evans, James M'Qnire, and
William Acres, who were the tenant! (rf tb*
petitioners, out of possess! oo.
At May Term, 1831, the court ordarsd a
writ of restitution to be awarded to the peti-
tioners, the plaintiffs in the motion, ta leatora
them to the possession of the land from which
their tenants had been removed b^ tlM mar-
shal. To the opinion of the (Sreuit Court in
imiling objections made by the defendant's
counsel to the objects of the motion, and
awarding possession to the plaiutiiTs, the de-
fendant, now plaintilT In error, eseepted, and
prosecuted this writ ot error.
Tbe case was submitted to the court b^ Ur.
AUen on a printed argument for the plaintiffs
Tor. No counsel appeared for tbe defend-
ants in error.
Upon the point decided by the court, tIs.,
that the award of a writ of posaession was not
a final judgment from which a writ of errOT
would lie to this court, it was said:
We are aware that this court onl^ grant* re-
lief where the decree or judgment is final, and
that mere ordera to correct process do not come
within the description of final judgment*, be-
cause such orders, from their very nature, are
within the control of the court, as an order to
quash an execution, or to issue one, to correct
taxations of costs: all these, though final in
their language, ore not so in their nature; but
even a judfpient correcting an execution may
ledy would be left but by writ of error
against such judgment, erroneously entered.
But the order of the ooiui, quashing a writ be-
cause of excessive taxation, or because there
were nluer* appointed, or refusing the writ
for any cause in its nature temporary, as the
pendency of error, is not final. But if the
court refuse fieri facias because in the ooinion
of the judge the judgment doe* not autAoriie
one, or because, in his opinion, he is restrained
by final decree; then the judgment ia finaL
Such have been the distinctions observed and
fracticed upon in both Virginia and Kentucky,
ndeed, in 'both States, where the judg- [*l
Nora — Inrlidlctlon. What Judcmenli are final,
•0 *■ to allow appeal therefrom to Bupreme Court
See not» to 4 L. ed. U. B. 97 ; B L. ed. H. S. SOZ ;
40 L. ed. U. 9. 1001 ; BS L.R.A. GIG.
Ejectment Requisite* of adverse possession.
Bee notes to 6 L. ed. D. H. SOS; 10 L. cd. D. B.
31S; 53 LJt.A. Ml.
Uesne profits, wlwn recoverable. Ses note te
10
Cslder V. Bull, 8 Dall. 8S6. After a Jndffment
has been abtalDed In an action of ejectment (or
the nonpsympot of rent, and possession has basa
delivered, the court will not, on motion, rsator*
the possesBloD on tender of the rent due, partlen-
larlj whea tbe amount due Is disputed bstweea
tbe parties. Camae v. Allwlns, 1 Wasb. C. C.
PetM* t.
Thi Uhitb) StAna t, Nouub.
M«rt Is f« iMltr, on wfalcli tilt &iaI pnxwsa
n«j iMoe or the poiMMJon be changed, the
jndgment or deeree la held to be fiiul.
Teat thfi nue by thcM rulea, kod tee irheth-
a- the judgment is final or interlocutoT7. It i«
a final judgment both for the possession and
tbo costs; one on which execution may not
only issue, but on which execution is ordered,
tai on which a fieri facias for costs is also or-
dered. This Judinnent though on motion is
more Ifaial than if it were an ordinary case of
ejaetment, it lasts as long as the record lasts,
wliereas the other may expire with the lease;
and need we call to the mind of this court the
moDstrooa evila that must grow out of the
practice of permitting ancient judgments and
rights to be overturned by these «x-parte mo-
tioas, founded on parol proofs.
II this court poesesa no power to correct, the
praaent caae is one of the strongest instances of
abuse. Twelve years and more before this
motion was made, Samuel Smith had recovered
iudgments for his land; under this judgment,
hj the laws of Kentucky, he bad a right to
make faia personal entry, to sell out or to ten-
ant it; yet, without process served on him,
without process served on the tenant, and with-
out procesB served on bis agent ix alienee,
•trangera to the record, on a tale of their own,
frma the month of one of the defendants in
tha raeord, obtain a judgment and execution
for the poBsesaion; which being knit to a for-
BO^ possession, may not only ^lange the right
of «nti7, but destroy the remedy by writ of
rigW-
Hr- Chief Jiutlea Harahall delivered tha
opjnion of the court;
This fs a writ of error to a Judgment of res-
titntion awarded by the Court of the United
States for the Seventh Circuit and District of
Keotncky, whereby the tenant of tha defend-
ants in error was restored to the possession of
a tract of land from which be had been im-
properlj removed, under the process of that
The defendants In error filed thetr petition in
the CIrenit Court, stating that a decfaration of
ajeetment had been brought by John Doe, on
Ua dendae of Samuel Smith, and notice served
«■ ffiram and William Bryant, the tenants of
7'] the petitioners; 'and a judgment was ren-
deiad a^nst them In May Term, 181S, on
which no writ of habere fadaa possessiimem
has been iaaued.
In November Term, 1818, a judgment was
rendered against other tenants, by virtue of
which the marshal turned John Evans out of
possession; who, as tenant of the petitioners,
residad on the place which had be^ occupied
by the Bryants.
A rule to show eauae was granted, and on Its
Twtnm restitution was awarded.
Tbt Jndidal Act authorixes this court to is-
aoe writs of error to bring up any final judg-
mmit or daeree in a dvil action or suit in equity,
depoiding In the Circuit Court, etc
Thin ia not a final judgment in a civil action,
■sr a devee in a court of equity. It is no
nan than the *ction of a court on its own proc-
tmt, ^MA U rabmitted to its own discretion.
• ik«d. 3
This court takes no jurisdiction In sucli a ease.
It is not, we think, given by the Judicial Act.
The writ of error is quashed and the suit dis-
misHd, the eourt having no jurisdiction.
In error to the Circuit Court of the United
States for the IXstnct of Kentucky.
This cause came on to be lisard on the tran-
script of the record from the Circuit Court of
the United States for the District of Kentucky,
and was ar^ed by counsel; on consideration
whereof, it is the opinion of this court that
this is not a final judgment In a civil action
nor a decree in a court of equity, but no more
than the action of a court on ita own process,
which is submitted to its own discretion, and
that the court cannot take jurisdiction in such
a case, it not being given by the Judicial Act;
and that the writ of error must be quashed and
the suit dismissed, the court having no juris-
diction. Whereupon, It is considered, ordered
and adjudged by this eourt, that tbis writ of
error be, and the same is hereby dismissed for
the want of jurisdiction.
Judgment of eourt of competent Jurisdiction
conclusive — execution — warrant of distreaa—
jurisdicti on — injunction.
The Treaiarr Department of the United Slates,
OD the Mtb at Jal;, 1829. iMiird ■ wan-ant ot dls-
treu directed to the msribsl of th« Ulatrlct ot Co-
lumbia, commanillDC bim to \evj bqiJ collect, hj
dlstren and Hie orbli xoods ind chiltp)^ s sum
ot money alleted to be due to cbe United States
on a treasurj tnaacrlpt bj Joiepb Nouree, late
register ol the treanurj. Tbt* warraDt nas Issued
In pnrvnance of the 3d and 4tb eecllons of the Art
ot Mar lOtb. 1820, "prvvldliiE >or tbe better orican-
liation of (he Tresaury Dfparlnipiit." Under the
prOTlalons of tlie 4th aivtlon of the act. Mr. Nouraa
obtained an InjutKrlloD rrom tbe Cblet Juallc* ot
the Dlatrlct of Cohimlits to stav all furthpr pro-
ceeding* on tbe aald urarraut. Tbe bill presented
by Hr. Noune to Ibe Cblef Juattce of tbe District
of Columbia asserted Ibat tbe United matea were
Indebted to blm tor compensation for extra services
he bad reodered to the United Slalea, In a aun
eieeedlug tbe amount claimed '— *'—
Staler- -•-'-- -■ " • ■ "
) IcKalllT and the ■
aat Ur. Joseph Nourae
Oiencles m .
tors to aseertsiD tbe value of bis si
pensatlon. and to report therfNjn
The report of tbe auditors allowed t. ,
ant a commlaslon of two and a halt per-c-ent. on the
aum of tR43.»08.8n, disbursed by him In the several
agencies In which be had been emplored. lesvlna a
balance dne to him from the United !<tates. Ths
report was conDrmcd and tbe IdJudcIIod made per
Tha' United Slates tbeo Instituted tbeir salt
siralnst Joseph Nourse In Ibe Circuit Court tor tbs
Dlatrlct ot Colnmbla la tbe Countj ot WaabIng-
SuPBBUE CoDBT or THE UlCITBD STATXS.
bn, «■ IB ■econnt luthfutlntrd accordlnB to law
by tbe proper aceoimllDK otSccra, btiog tht wma
kcoKiDt, and cl&lmlDK tbe ume ■mDuiit ■■ In tbe
warrant of dtstriss, and on which the decree of (he
Chief Justin WHS pronouncfd. It wai BL-rrrd that
the defendant ahoiild hare the bcDtat of the pro-
eeedlan In that caw, aa 1( the aame had been
pleaded and kItpd In rrldean. Tbe Circuit Court
adjndged (he procepdineg In tha tonner actlac a
bar to thla action.
Bt thb Coubt : It Is a rale to which no excep-
tion la recollected, (tint the Indji — " -' - '
of competent Jnrlsdktlrm, whil? .. .
cindei the nubject matter ai between the asme
paMlM. They cannot SRiln bring It Into lltlicatlan.
An eiecutlon Is the end of the law. It glrea the
Bsful parljr the fruits ot hla ]tidiment, and
_,. .0 tbe
It would eiclte aome aurnriae If, In a piTernnjent
of lavit end of principle, furnlsbed wltb a depail-
mont whose nnproprlate duty la to decide quea-
tlona of right, not only between Individuals, hut
between the troveroment and Individuals, a tnlnla-
terlal olflcer mlebt. at hla discretion, IsBua thia
9*1 powerful •proress. and leij on the person,
■--■'— -0 be dr- '---■--''-- ■'■-' -•-■
e Bwa o ^ unJua'C""
the District of Columbia bad fi
After a reference to aodttora, according to the
eourae of courta of chancery In matters ot ac-
count, a flnal decree was pronounced agalDSt the
United States, nnd a perpetur' '-' ■' — ■■
force when Ihls
full force, and *
■ stltuted. The i
ctlon In the apeclBc c
t of
the district Judge. He might havt enjoined tb<
whole or a part of tbe warrsnt. Ht< decree mlKht
have been for or aralnet the United Btatea for the
whole or a part ot the claim. On the aam which
ha found to t>e due. be Is directed to aaseas the
"""'" ■" "nnr add auch damages as.
" rlnclpaT "
Had
Dcr cent, per annum on the principal sum. Had
the district Judge flnally enjoined a part of the aam
claimed br (he United Htatea, and decreed that
the residue should he paid wltb lalereat. all woald
penelTe the nadtneaa of asserting a claim In a
new action to that portion of the debt which had
bten enjoined by the decree ot the court. And
ret, between the obligation ot a decree against
the whole claim, and agalnat a part ot It, no dla-
UnctloD Is pereelTcd.
The rrllet which la glTen by the act ot Congreaa
on which the warrant ot distress may be lasaed by
■pplIcatloD to any district Judge of the United
Statea for ao lojanetlon ta stay proceedings on
aaeh warrant. Is not confined to an officer em-
ployed In the clTll, military or oaTsI departmcnta
of tbe gOTernment to dlabursa the public money
appropriated for tbe service of thoae departments
reapeclliely, who shall fall to render his accounts,
or pay over In the manner required hj law. anr
Kiim ot money remaining In the handa of auch o(-
IndlTldual against whom the warrant may lasue,
the language of tbe law 1> Immediately changed.
The word -peraon" la »iil>Btllutcd for officer; and
It declares, "that If any person should consider
himself »(rgri»Ti?d by any warrant lisued under
tbia act, he may prefer a bill of complaint, etc.."
and thereupon the Judge may grant an Injunction,
etc
The character of the Indlvldaal again at whom
tbe warrant may be Iwued Is entirely disregarded
by that part of the law. Be he whom he may. an
oBlcer or not an oOlcer, a debtor or not a debtor;
If the warrant he levied on his person or property,
ha is permitted to appeal to tbe Inwa of hla coun-
try, and to bring his esse before the district Judge,
to be adjudicated by him.
The district Judge bad full Jurisdiction oyer the
case, and hla decision la flnal. The Judgment on the
warrant of distress, and the proceedings upon It
mt% conaeqncDtly, a bar to anj subsaquent action
Car the same caaaa.
IN error to the Orailt Cmut of tlw DalUd
Statea of tha Diatriot of OohuBbU for tb*
County of Washington.
Thii was an action of •amimprit fiiatltntad
by the United *StateB in the (Srenlt ['10
Court, on an account stated at the Tremsury of
the United States, again at "Joseph Vonawt,
late register of the Treasurr of the United
State*. The account was dated "Auditor^
Office, 28th of J11I7, 1829," showing a balanee
in fayor of the platnti^s, of ttuit day, of
|ll,7fl9.1S, and was duly and regularly eeiti'
fled, according to the provisions of the acta of
Congress, by the officers of the treaaurj. Tha
defendant pleaded oon aasumpsit.
The cause was submitted to the drenit Oonrt
on an agreement of the parties, stating that tha
suit was brought upon a tntnacript from the
treasury, which was annexed to a record in a
former proceeding originating in the District
Court of the District of Columbia, and brought
benefit of the proceedings in that case, as if tlw
same had been pleaded, or, as if given in evi<
dcnce upon the trial. That npon this ttatmnent
judgment should l>e given aa on a ease agreed
and that either party should be at liberty to
refer to the printed record in the case of The
United States v. Nourse, as if the same were
fully incorporated in the record. See S Peter*,
*7Q.
The (Srcuit Court gave judgment fot the d*-
fendftnt, and the United States prosecuted this
The case was argued I^ Ifr. Bntler, Attorney-
General, for the plsintifln In error, and by lir.
Coxa for the defendant.
For the United State*, tbe Attorney-GeDeral
said that the only question In the ease was wheth-
er the proceedings against the defendant, un-
der the warrant of distress, and tbe decision of
the district judge in that case, were conclusive,
and a bar to further eotion by the United States.
The (Kiun will axamine particularly the case in
6 Peters, 470.
He contended that the whole object of the
Act of Congress of IBSO (3 Story's Laws U. 5.
1791) in giving to a public debtor, "an officer"
of the United Statea, who had received publle
money, a right to apply to a district judge of
tbe United State*, when a warrant of diatresa
was issued against him; was to ascertain wheth-
er the United States werfi entitled to the sum-
mary process of a distress warrant to which they
had 'resorted. This construction of thia [*11
act will regulate tbe ease before the court. An
examination of the third sfrction of the act (I
Story, 1794} will fully maintain that if tha
United Statea do not think proper to avail them-
selves of that act, they may proceed agaiuct
their debtors as in other eaaea.
It la admitted, 1^ the plaintiff in error, t3M
if this court had decided that the proeeedinn
in the former case were judicial, they would M
conclusive. But the contrary has been the d«-
ciaion; and they have been held not to be judi-
cial in their natnre.
The true view of the law is that in coeei where
it Is perfectly clear on the books of the treasury
that there is indebtedness by a public officer for
public money received by um, tbe proceedlnM
Feten I,
TSB Ukited Statu t, Nouisi.
bj tMnm wamat nut; be rtsortcd toj uid if
tAe pu-tj aubmitB to it there ia ftn end of the
matter. But if he thinks proper to apply to the
diatiict Judge and satUfleB him, the judge may
rMtnia the United SUttei from proceeding far-
tlier on the aiecution. Afterwards the United
8t»tM maj lue for the debt cleined b;^ them in
tbe mual form, and as if the dietre«s warmnt
had not isBued. By this eonttruction of tbe law,
both the United SUtes and the defendant in the
anit hare secured the right of a trial by a jury;
while, by a different version of the law, this
lig^ ia enUrelj taken away.
But aappoaing the proceeding in a proper case,
and mu which the law was intended to com-
prehend, may be final; the case set up in bar to
this suit was not such a case. It does not ap-
pear that the person against whom the distress
warrant issued was "an officer" within the Act
id 1S20.
The general rules as to tbe eonctusivenese of
Judidal proeeedinga are perfectly settled. No
one is to be twice vexed for the same matter,
■ad former proeeedingi are a complete bar to
an subsequent actions for the same cause of ac-
tloD, and may be pleaded and given in evidence
aa an estoppel.
This caae may stand for the consideration of
the court, as If the former proeeedinga had been
regularly pleaded In bar. Wben in eases of auidi
a chsijcter, or resting on tlie plea of the formei
proceedings, it appears that tlie merita have nol
ticen decided, ss in cases of "nonsuit" and
retraiit, the matters may be examined and dc
cided upon in a subsequent suit. Starkie'b
Evidence, part 2, p. 108, and the cases referred
to. *It must distinctly appear that the [*12
merits were examined. 3 Wendell's Kep. ST,
:i3; 8 Wendell's Rep. 0.
In the bill filed by the defendant in the esse
in 0 Peters, Mr, Nourse took the ground that .
the money charged to him In the tri'usury tran-
script had not been received by him as "an
ollicer of the treasury," but as a mere "agent"
of that department. He claimed in his bill that
the term "officer" in the act of Congress, was
applicable only to those who in such a capncity
received the money charged to him, and which
farmed the items of the account. 0 Peters, 405.
Tbe other matters in the bill alleged that noth-
ing was due to the United States, but that a but-
ancB was due to the coniplainant. Thus it ap-
pears that one of the material grounds for the
ipplication made lo the district judge, was that
the money was not received by Mr. Nourse as
an "officer." In the case of Randolph,' whid>
a of Mr.
ocured corrected
i. BANDOPLH.
Ei-parte BOBEBT
irenit Court ol the UoUed SUtes, held In tbe
Cspitol at BlcbmoDd. December 21. 1833. CtiEet
Jnrtlce Uanfaall and Judge P. F. Barbour, com-
poslDS the Coart.
Opihion or JtDOB BiHBooB :— Tbls Is a habeas
~ia. Issued bv this court, upoo the application ol
" *" " idolj)!^ alleging that he wt- ' "-
Beeert B. BaDdolpb, alleglt:
OBed by the manhal of the
giala, wlthont lawful aathorltj.
''^' "— ,1 retnms as the en
rvu-
« at the 4etalDeT
and which h« has tailed .
at the time rcqntred b7 law ; which warrant was
lasaed nnder the third scctloo o( the Act ot tbt
Uth of Mmj, 1820. eoncemlDS tbe Treasarr Depart-
BCBt. Fn>m the warrant, and the aeconnt annexed
as part af It, It
..a the partj Is e
_- a llenlenant In the Nsij,
iPf pnrMr, on board the frigate Constltatlou, for
Us franaaeUone In Ibat character In the Tear 1828.
It upcaia from another document produced bj tbe
paro, dol* aothentlcatcd t>T tbe toorth auditor and
•anetloDcd tv tbe comptroller, that Randolph bad,
to Oeteber, 1828, settled his aeconnt as BctlaR pan-
ir en board tha Coostttutlon : but, Dot*rithstandin|
Ikls prcrloos settlement, the accoant on which the
warrant ot distress was Issued, nnder which tbe
party la Imsrlaoned, b one stated at the Tressnrj
•t the Dnlted States, In rebmary, 1838, afalnst
Use aa tats aeUof pdr»r ot the (rtsate constltu-
tloa for the aame period embraced Tn the account
ab«*« BMntloned to have been settled In October,
1828: tbe present fourth auditor ot the treasurr
havlBS epened tbe former account and restated it,
•a aa to ptednce the cesnit stated In the aeeoant
of PebnaiT, 1883, before mentioned, gpoo tbe
(tnoad. ae appears from the face ot this last ac-
eonat. ot the snbieqntnt dlscovtrT of «rmrs and
UpMI tbis state of facts, tbe party's counseT have
■rsned that be Is entitled to be dlicharEed : and In
the eonrse ot the acKumeat. bare broueht lata dla-
enaalon man; and various polnti, tb* "'-•> "' >'>>i'-><
Is ef Uie iravest import : It calls In
f tiSa
sort la eartalntj the Idgbest and
cases on this subject. It InTaives the Inqulrj,
^retsr^ln (he Tnw, fa. or % n1!l'7n''conflkt 'w?ih t"e
will of the people, ss expressed In tbe constlrutlen.
Crest, however, an Is the ri-spooiilUllltv Involveil
In this exercise of Judicial power, 1 iboutd meet It
without dirncultr, if it were necesserj to tbe deci-
sion of this cause. But 1 follj concur In Ihe sen-
tlment of counsel, that whilst, on a pro|)i>r ucca-
ilon, It ought to be met with Brnmess, on tbe otbct
faaad, It Is the part of wisdom lo decline the deci-
sion of Biicb B question when not neri-Fsarj.
From tbe tIcw which I have taken of this esse, I
do not conalder It necessary, and shall therefore
pass It wllbout further remark. It )s wholly Irrfla-
tlve to the merits of this cnsc to Inquire whether
there may not have been error committed by tbe
auditor In (he slating of (be sccoiiol on which this
proceeding Is founded, because we are not sitting
writ of error, nor Is It t>efore us. as the proceedlugs
of apecls] Jucladlctlon In Ecglnnd ace before the
King's Bcocb. by certiorari. In Mlber of those as-
— -■■- "-- -■ — -'-'-'- — ihniilrt he called upon
It of the In-
In the
QUlry whether ther
proceedings: but, sitting _.. ..
corpus, tbe Question la not whether there is
ror In ths proceedings, \mt whether there was ]i
n tbe auditor of tbe
been departed from that _._ . ..
diction, and proceed In verso ordlne. .. .
I. (>..» th. ni-oceeding Is only voldi....
has not Jurisdiction of thi
lempllfytng Ibis principle.
{to arise wlicther tbe auditor hnd Jurls-
1 the cose — In other words, whether the
person and the subject matter
ut that the auditor h
ts
SuPiEUE CousT or TUB VsntD Statm.
.■ante before the Chiet Justice of this court and
ia*i 'llie DUtrkt Judge of tlie Eastern Dis-
trict of Virginia in the Circuit Court of Ihot
district, ft was dcidcd that it must n|i|war in
the account, for which a diatrcsa warrant sliall
isBue, that the money claimed has Ucon n^cpiicd
by the debtor to the United StBfe»asan oHlcer.
The statute, it wa« held, should be conxtnied
strictlf.
iipoQ the (acts Id this case, anotber quntloD aiines.
as Id thli
after tliR<
of I
amce
■ llejC
t tbc c
t for liLm
_. .T lor otber caust, to opco It, romte It. and
u^ion tlie accounl tbys resIatiMl. lo [aitltutc nro-
ecedlnea hy > narrant of distress aealnat lUc mbt-
orT 1 tblnli II Is not. Let uh Irj ttie question by
retercDCc to sume siiBlogous caseH. I take il to l)e
■ sound principle tliat wben a special IclliunBl Is
created wllb limited power and a particular Jui'ls-
<Jlctlon, that whSDPfcr the power given Is once el-
ected the JurlBdletlon la exhausted BDd at no
end — that the pcrsoo thus Invested with power la,
In the InnguDge ot the law, functus offlclo. This
proposltlOD Is. 1 (hiDk, BUStQlni>d bj the case In 6
when a ma gist rate, who haa poner to convict, baa
once coDTlcteil, his Jurisdiction la at an end — he Is
functus olDclo. Could he, at ah; arter ticae. upon
soma aopposed error, uussh, or in any ■
the cacTenc; of hU ovra cOQTiclloni
controTersj to have '
and that thej had _.
llTcred It. could thej aftern-ards. on theic own
I submllted to arwrutors.
ange o
mieht be I
that t
.. hj re
ardl
.., 9 o( special J
s given by law. Under the acl
lea. asaesBOrB were appolDled I<
oslng
pie ted
law, co'uld
altered It :
-lai <
Ided I
ad, U
ortlonment. After the;
the; afterwards, [n ani
o Bs to chaoge the valua
iletlonera of baDkruptcy
d committed a
id made and com-
ilrementi ot the
nv mmnneT. have
Buppose
appointed I
wlilch w-
dtlsens 1
ind anoouDced a
- Uiepowi
larda. I
FBCDted or set said
it the eommliwlaDer
I had fotlj e
I them, could tbcy
r own ButhorltT, ' *-
■ .<■.? Finally, sl,.,
'" ' one of the iresues uuoer
an Indemnll]' from Spnin.
Bdjudge the claims of our
;utcd (liat trust— had made
Ire dlBtiibutloo of the fund
,. .^ rter time, have Tarled their
own adjudication 7 In all the caaes which I have
put, I Inciulre Into the power ot the special Jurls-
8 sir wiiat they bad done, Examples m1|$bt tie In-
eflnitely mulllplled— Iheae are aufflclent lo Illus-
trate m* Idea, tIe., that whenever a special Juris-
diction has once executed the power with wbich It
was Invested, their power Is at an end. as to the
subject Id relatloo to which It has beeen ' '
once eiecated, tbe oi
lo account, and bavl
after the aceotmt ha
he mold 0,
period of t
-er of the auditor Ib
s that It Is bis duty
led, lo pay. But If,
bin whet
Ther
length of time o
t upon alleged ei
louBly
frequency. Suppoi
then opcntnu It and
he should think he had discovered nrui. ue uiusl
ojWD Bnd restate it asalti. It will he observi'd, loo.
that thoucb Ibe auditor In this case did give the
(arty notice, the law docs not require It; unless,
herefore, he shall be restralm-d to one settlemeot,
It would be competent to him years after the death
ot the original party, without notice. In Ibe ab.
sence of bis reoretentallves. who might t)c dis-
persed Ibrough the United Slates, and In the ab-
neore ot all proof on their part, to resettle tbe ac-
count Is * manner wblcb would prodnea great la-
*It wilt be uid that the district Judgi ['14
proceeded, in the former case, on the ground
that Mr. Nouree was "an officer;" that he took
juriwliction of the case upon that view of it;
but it is submitted to this court that this must
mnnifestly appear; it must be fully and clearly
established, that in the decree or opinion of the
judge, he was an officer within the intendment
*of the statute; and this is not the fact. ['IS
Justice. But, again. If It he competent to htm t»
upeo the account In favor of the United autn.
Ibe mnrei'se of the proposition must be equally
true, upon Ibe prlnclplea of Justice ; It must be
competent to him sIbo. after the lapse of years, to
open II against the United Ststes and In favor of
the party. Might not Uils course most Injuriously
alTect tbe pulillc iDtereatl It seems to me that a
doclrlDe which leads to siicb coaseqaenees cannot
be sound, and that the goveroment Is not without
ample remedy, though this power shall be denied
lo the audKor. I Bappose there can be no doubt
that a hill in equity would lie, to aorcharge and
falairy, aa In case of a settled account between In-
dividuals; and. moreover, according to the doo-
trine of the Supreme Court (11 Wheat 287). even
at law. Bltbou),-b a settled account would be prima
facie evidence, yet It could recoTer, upon provloa
TnintHltea or omISBlors. any sum of which It bad
inJusDy deprived. NDt)Ody doubts the
0 tlmi
a they si
of t_.
Ill fall
c of the audi to
.- Jhe difficulty arose from t..v ..-
eipressed by two high authorities, althoaeh decided
by nellher. In Bi-parte WllaoB, S Crandi, 62. the
The court said 1'
coTTius waa the proper remedy in a case of arrest
under civil process. In IS Jotma. 162. tbe Suprems
Court of New York, except one ol the Judges, ei-
fress the same doubt, and refer lo toe case Id
ranch. The Judge, In delivering the oplnlun ot
the court, says If It were necessary to decide tbe
rlnt, be should say It would not lie In sucb a case.
■uppoae that nrobnbly tbe doubt orlglnntcd
fact. The celebrated habeaH corpus Act
Srsctlce, l»y reason of Its i r-- — -
isuring speedy action, has ainost superseded the
:ommon taw, has been beld In Bnitland to bo
ninflned to criminal cases. All the Jucluea of Eng-
land In answer to a gnestlon propounded to them
l>y tbe House of Lords, answered, that It did not
;ilend to any case of ImprlsoDment, detainer, or
restraint whatsoever, except cases of commitment
4Sa, I
supposed crimi
e time ■
t the SI
latter*
,... .. .. _ person Im-
Isoned apply for a habeas corpus sd subjlclen-
im, at common law. and make aDdaTlt that ho
e« not believe that his Imprisonment Is by virtue
a commllmenl tor any criminal or supposed
Imlnal matter, would such affidavit, as the law
theD_ stood, be probable cause for awarding the
The
be proltable cause for aw
question being objected lo w
'nnsetEw
tate. Yet there are two books of authority whle»,
think, sustain the doctrine that the writ Is not
onSned lo criminal cases. Blacketone, In his Sd
■ol.. p. 132. says (hBt the great and efflcaclous writ
n al! manner of Illegal conflnemont la tbe habeas
ornuB ad aubjlclendum. Bacon, 3d vol.. 421, says:
Wliencver a person Is restrained of hts liberty
•eraon, whether It be for a criminal or eWII canse,
le may regularly, by babeas corpus, have bis body
lod COUM remoTed to some superior jurlsdktloDt
tu»
Thi Unitis &rATn v, Vovun.
In tha former ease, m nference of the accoimti
beltre«Q the United States and the complain-
ant in the Ull vM made to auditors. The
eredita claimed against the balance of the ac-
count stated it the treasury ncre founded on
items of ciipendttureB made by Mr. Noursc, as
■£ent for thfir disbursement; and a pcrpptusl
!«*] injunction *wa» awarded. It does not
•ppear in the decree, what the decision of the
th* writ "lor the pDrjrasc of iDqatrini Into tb*
airae of pommlnnent.' Upon thU the Rupr^mi.
Court, In S Fttrn. 201. Ei-partc WstkiD*.
pt of the money, nor
does he say anything to negative or affirm the
fact. Nor is it material to the cUim of th«
United States that the proceeding is not a bar
to this suit, that this did not appear. It ii
enou);h that the 'allegation was made by [*1T
Mr. Kourse that he did not act as "an officer,"
in making the disbursements, and that the
Bsrlia. "that no law or the United Btstes preiirrlt
tbe me* In whicli tbl> great writ ihall be Inui _.
nor tbt pover ot tbr court oxr the partr broDRbt
op by It. The tetif ■ - - ■- " -■ — ..-- --
n the CaDslitiitlan as
iwrr which we are reciutred ti
Eredse deflnltlon of that th
wtthoat anj
po*M on oa
eonildmblF d>>ErFe, lorarpriraied
_ If^la makine this liKiulrji, wi
.V o[ ohi
d Is rppiisnanl
<f tbf United States, If itila
)LJ-r
Bnt. If w« kmk to the eommoD law antharltli
whii-b I bare meDtlonMl, It seems to me that w.
are JnitlBed In applying It to a case oi ciTlI pro-
nabaod. and a child ti
._ ._ ^, not otharwlM be
nndentood.
Nor do even the donbts sTpreasf^d Id the caaea
fnm Crancb and .Tohnson a|i[>l« to thia : for both
T)a«)'
•f thow wt
ftma a mnrt of record and Keneral JnrladlctlOD
whrrHi thi* !■ a cww Of process, IssulDS from a
■lion, which can nrltber ha anper^
rarl nor re-exsmlned br writ ot er-
d be dtscharRcd.
tail conna. and a motion Is now made loc his dis-
Aanta mm imprlsoompnt.
Tbe writ was direrted to the msrsbsl of this dls-
trlrt. In wbore cnalody he la. The return of tbe of-
fleer shows tbe canae of capture and detention to
be a warrant linued hr the apcoiiDtlnx ofRcers of
the tm'urr, nader antboritT of the Act pnaaed the
IBth day of Mav. 1830: which, after rpdllni Ihnt
Robert _n. Randolph, late acting puistr of the
Tnltpd BtatPB frlcate Const'
jtlon, afanda Indebted
to tbe Cnltod Rtatea In tbe sum oE I2S.0QT.SI1,
•tcrreahl]'. to the settlement of bla aFeaunl made
or the proper ■ceoantloR oOleers of tbe tressarj',
and has fallea to par It OTsr arcordlne (o the "Act
tor the belter nnranlsatlOB of the Treasury T>e-
partmeut." eommanda the satd marshal to make
the Mid snm of SI'^.OnT.aa out of the itonda and
eliattela of tbe said Randolph ; and In drfaiilt tbere-
•f, to rnmmll hia bodr to prison, there to remnln
■BttI iHscbstEed b; due caume of law. If theae
BToeeedlnra fall to prodnre the aald sum of money.
tbt warrant la to be satlaOed oat of hIa lauds and
Tbe retnni showa that tbe tK>dj of the said R.
B. Randolph was committed to prison, and Is de-
tained by Tlrtne of thla procem.
Bereral objections have been taken to tbe leeal-
ItT af the warrant, the flrat and moat Important of
vUeh la tbat tb* act of Congress under lbs snthor-
• I.. Ad.
tborlt/ to the olflcer who ha* eiecuted It, and lb«
Imnrlaonmeat of Mr. Rnndolpb Is unlawful.
The counsel of the prlfioner rtlj on aeireral parta
of tbe Conatllutlon, which tber suppnae to Iiave
been violated bj the act In question. \be Orst sec
tlon of the third srllcle. which ei-lHlillalies the Jii-
which ai-cures the trlsl by Jury In Hulls at coiiiuion
law, Bic particularly aelei^tt'd as bavins been moiil
I Ho questlona can be bronKht N?rore a Judicial
tribunal of greater dellcsrT than IboBe which In-
Tolred tbe constitutionality of a leRlslatlre act. If
they beeooia Indlapeosably neceaxHry to the rase,
the court maat meet and decide them i but If the
case may be determined on other points, a Just re-
spect for the Lefflslature requires that tbe obltitn.
tlon ot tta laws ahould not be Dnneceassrlly and
wantonly assailed.
Tbe act oE Conaress, under the authority of
which tbe process by which Mr. Randolph Is Im-
prisoned wan lasaed. makes It the duty of certain
ofOcers ot tbe treasury to settle and cause to b*
ststed the sccount of any collector of tbe i-evenue,
etc., who shall fall to render his account or pay
over the same In the manner or In the time re-
3 Hired by law, eiblbltlng truly the amount due t#
le United States, and certlfvlng the same to the
■gent of the trcBsury, who la autliorlted and re-
aulred to Issue a warrant of distress aaalnat such
ellnnuent officer a
delinquent officer and bla aaretlea, and by commit-
tlni the body ot such delinquent officer to prison.
there to remsln ontll dlacharted by due eMTM W
It this aaeerlalnment ot the sum due to the gov-
ernment, and thla IssDloi of procesa to levy the
sum so sacertalned to be due be the eierclae ot snv
part ot tbe Judicial power of the UullPd Slates,
the Is« which directs It Is plainly a ylolatloa ot
tbe Bnt section of the third article of the Conatl-
tntlon. which declares that "the Judicial power of
the United Blates shall be vested In one loprems
ccnrt. and In such Inferior coarta as Conciesa aball
jadEea. both ot tbe supreme and Inferior conr^
shall hold their offices during good behavior." Tbe
' idlclal power extends to "conlrnverales to wMcb
by tbe act of Con-
from a dellnqnent
. .. ,„™l u.,i? do"Sor?str **
jd estaMlshed Sy Congresa. no>
do they hold offlcci during good bebavlnr Their
offices are held at thP pleasme of the rrcsldent ot
the United Rlntea. They are conorriiii-ntly Incnpa-
ble of eicrclsing any T>ortlon o( ttic ludlclal poner,
and the net which atfemrtii to eiufpr it la alieolnte-
Iv void. In ronnldning the vnlhllir ot this acL
t>)ererofe. it Is i.er-,-«arv to dLrnrd evnry Idra (rf
' Hug Judicial power. We must not view
thp
r tbe •
which
an J^idlclal process. Thi-y
must be tli-wrd ai mere
mlnHterlsl acts perfortne
d hv mere ministerial
h^rn-ISB BiKtalned.
>ume thai the pow.r ot
conrrtln-T iFiies and of dlM
ursine the money of the
DHbllc. map aulRorlie the I
eglslnfiire to etinrt Isna
■y i>M-h Ihe nwtif of l'<
Ills of all nrrtvlng and
om'ncr tl'irpn?m"n't''"i
iny aom allesed to be due
But these BKeoO a-«
17
6t;PBii:itB CouBT OF tob Umtu) Statu.
jud^ K> drilled the ra«e. Tlie juUge save thst
Ihu eervkea were eKtra-oflio}*!; that t!ie «ims
due ta nn olt-.-.'t u-rre for cpivic» nnt oir<"iii1;
and tliat t!ic icon.y repeived from tite Uni.cd
StRlps nas not received liy h'ln as re^^istcr of
the tri'osury.
IS*] "lietatise the Uiiitod StatPH Bubir.itipd
to the prwetiling. it has not valii'ity. AM the
proccpdingB, after the warrant of Bcimre, would J
M illegal, if th& government liad not aright to i
nure'T mlnlstiTliii, and thpir acta «r* ni-wMBrny t<
b« trrali'd only aa mlnlslprlBl nc*i. The Inevltabli
conHequpnep la that i]<plr valldll; muflt be dirlded
b; those le!r«l princli ' " " '" ''
on Olher pei-soim
trenerally ; It aprllea wllh i
trenerally
oppre;
0 drrall the a
._ Fd In tontpated caaei. Tbej hoT
been brought Inio full Tiew by rouiiBel, Id thel
areuinentB. and I will not ai;aln prpHrnt ttirin. 1
roar h« aeid. with confldpnce. thnt the I^glalatnr
atriicllon, to lie more atrlrlly contlnfd to fta lenei
Br thla rule lla wordii ulll be eiamlned.
The first o^Jestlon to thla warrant la that Hi
The act does not declare tlwt everj debtor of the
rmbllc aball be subjert to thla ■'unmarr oraei
The particular persona a)!"lTi«t whom ft may
iiaed a
y collei-
Tho*
n the
._ ._c pilbllL _. .... .._,
have received the puhllc monej before it li paid
Into the Treasiirr of the United Btatea." The ob-
vlona oonalriiclion of theer wovila la. I think, that
they descrllie persons wtao hold oincea under kot-
emment, to whose hands thp puhllc money romes
before It rearhea the treasury. A eollector of the
revenue Is an uincr of Ibia desrrlntlon, ao la a re-
ceiver or the public money, and the f-ilowlni
words, "or other oHlcer who shall have rer-rlvpa
thi- piihUi; monc-v hcfore It la paid Into the Treas-
ury of (he United Stalca." demonatrKled the kind
of persona who were In the mind of the Tj^lsla-
tui-e. Tbe sube"0iii'nt words preaerre the Idea that
reeiilnrly appoloted odlcers onl^ were liiteDiled.
The word omcer Is retslncd. and la reEnlsrly used
IhrotiRhout the section, ahowlni; plainly that no
other debtor than one who waa properly deslftnated
ThnHishniK the section, too, the sureties of aurli
offleer are regularly connected with him, and auh-
;;nheofnc
made t<
depend on his havinc ac-
tualle enpc
1 bond with auretlps. I do
officer, reitnlarly appolnt-
ed, who ah
he mnncT of the public lie-
for" (he ei
n of bl
bond, mlcht not be liable
to tbiB trea
. But I mean to say that
this lauE"
ire pr
Tn In
anteoiahlf that the L*E:la-
and fn the time required bv law or the reinilatinna
mm of monfv rrmnlnine In the hands of Bach offl-
eer. It ahall he the duly," etc.
To what peraouB daea the word "offleer," u nsed
iasue ft; and no act of tbe offieera of tlieUalM
Statei could be of avail to five it Talidit^.
.•Suppose the wanant had laaued by dirMtlm
of the aolicitor 'of the treaaury, who hai ["!•
no authority to order it, and no exception had
been talten to it, would the proceedings under
it have iiad a legal exiatencel Aa it may
be considered that the decree waa made 1» tha
dislrict judge, on the allegation in the biU for
the injunction, that the money waa not n-
to whose handa any public money may be Intrmt-
ed, or la It to those omcers only whose regular dut*
It Is to receive and dlaburee the public cuoney, and
public money appraprlaled
departmenia respectlTeiy."
cer Is employed tor milltacT
I disburae the public moaay
not anppose that a military or oaval oDcer to
Dse handa money belonglnsc to the public may
■- '- from the words of the act. more liable to
.mary and severe proct^edloK then any
I not bearing a commission, to whom tba
. mllltai
ppropriafed
words of the a
r the P
„. , the Idea _ ..„
dlshuralBf offlcer wbose duty waa preacrlhnl by law
templated. Thla Idea Is still more Htrongly sop-
nortcd by that part ot the section wblch adopb
ill the provlsiona of the second section, and appllea
'•— - '- nntod
nverlty of Its provlsinns, Ibat It d''parls entirely
'rom tbe ordinary course of Jiidlc-lal nroceedlnir
ind pretcrlliCB an eitreme remedy, which la placed
:. ttandolpb an o
I mere ml mate Hal
artins purser of the Uolled filatea (Hgate Conall
tullon.'' The word actinc quHllfles the word pui
aer. and shows that be did not hold that office un-
der a reiutar apnolDtment. hnt for tbe time being
durlnr the eilstlnj emergeDcy, The omlaslon to
Include hia auretlea In the warrant, aa the law di-
rects, ahon-s that he had ElTen no sureties : and
this fact, unexplained, la evidence that no official
bond with sureties waa required. It mii^ht be add-
ed that tbo eiplaoatory accounts, to some of wblch
clont cJearneaa that Mr. Tlmherlake was purser ot
the frlEste ronstltutlon, then cruleinf;' In the Med-
iterranean, and that OD hl<> death I.lcutenunt Ilna-
dolph waa directed to perform the duties of pur-
ser during the cruise. It Is tben apparent tlist be
i-lth much planal-
nself the office, ha
,„ 0 fhli particular process, which li
subject of iniulry. la a mere acllns purser
■nsled by thla law aa one of those officert
... _., .1,,. .„_,„,„,• proccse r-"" ■" "-— "
it he comea witl
the mischief at
tut* Intended to provlda Tbe a
Tm Umm Statbb *. NovtBi^
»
MiTcd •■ mo offien', tM* conrt will not Infer that
I the
t drrided.
SO') *2dr. Coxe, for the defetidsnt, con-
tended that the whole proceeding* in the rase,
which u reported in 6 Peti^re, were judicial.
Two grounds for relief were pretenttd to the
diattict judge. The judge ordered the ac-
e«iinta between the United Statea and Mr.
Nourae to be audited, thus pawing bj one of
the groiinda, and considering Mr. NourM ai
Bot reach all public deblora, aad bi
pecUllr tbOM (or wblch It la luteadi
can be brvugtiC wttblc It* purview. Those prla-
elpta of itnct conitmctlan wbkh applj. I tbink,
. „_. .jlectfd
■nded. No oil
II law! reatrletlie o( .-=--,
Ttaev rcBEona aatiatj my own Ji](lRinL-ut tbal Mr.
Baodolph wai not aa otllnr to wbom the law sp-
pllet the proccu under wblcli be I* Imprlsoni'd.
If tl were noreasarj to assign an; msoiia tor
thli dlitlQCtlOD bttneen tcmpovanr and ncrmiinent
ntlierim. It would not be dllBcult lo flnd thna. The
prrmanrnt oOlcrr uiiiall; reccire* his money from
tbe treasur;, or by Its order, lo that the document
which Eharcpg him appears on the booka of tbsC
department. Tbe temporary offlcer wilt seldom be
yla«d under tbe same clrcumBtance*. He maj,
and cenerallj does, rrcelie the moDcy wltb wtilch
te Is chai'Keable. In aiicb a manner aa (o leave tbe
aascunt a aubject of eontroTers;. In Ihia partlcu-
lar case, Pnraer Tlmberlakc muat atand charged. I
pmume. with all the moneya ideancad to the puc-
■er ar the Conatttutlon. The portion of thia mocrj
which came to tbe hands of Hr. Randolph would
ool appear on those books, and ma; be a matter or
controverar between blm and Tlmbcrlahe'i repre-
aeotatlrea. CangreaB might Tcry reason eblr make
twecn an olllter wboee whole llaUlMtj ODCht to ap-
pear OD tbe books ol the depsrlmcnt. aud an agent
whose llabllllj was moat icnerally to be ascertained
Slntrlnale teallmonj, llat It la enouKh for Ta^
at the law, In m; Indgueot, nakea the dlallnc-
Batter tor
account stated br ordi
:ted from the books of tbe
ire tbe court, turnlab other
lalderatlon.
of the act requires that the
_ Bihlblt ■tnilj' the amount di
t* tb* United Statea." For what purpose was tl
word "truly" Introduced! Surely not to prohlb
'■-- -" -' "-- — -— ^ — '-t from enhlblllnK a
_ i.~.,.,,. — ^- _in>cltT. Its
then. Indicates the Idra
talnly known to t
nosey debited to _,. -
altbec no credits were claimed, or
a controversy tiUted. Tbe i
Dntted States cannot be truly
daln li shown by the accou
what Is really due. I do not d
appeared certain, and
say how tar bU fall
aredlta
! clall
United Btates. If tbe
smaller amount la Hue
Ina the credit
deMor In a c . _. .
make good bis credits: but v
Innlfy lasalns an ^execution, wli
^The'thl'rd eeetioL
reqolres thai the account shall be stated, and
evcta the B(ent of the treasuir to proceed In
■anner dincted la the prccedlnjc section, all
ptVTislona of which are declared to be appllci
-"" if aovemment chargeable with
paDlle mooey.
•^ ■ • that t__ .__
adopted In tbe tblid, are
- lion after the
_. __. think this tbe
fair eoDStructlon of the statuLe. I think tbe Le^la-
latnra eaa no nora hare tntended In the one case
"an ofnceT." and 'deciding the caaa, ['» \
*.lU:r the report of the auditors, in that view
of it. As to the nature of etii-h a proceeding,
he eited 6 Dane's Abriilgement, 223; "where
one acts as a jud;^, aud the matter is within
liis jurisdiction, hie sentence liiiiila, until re-
in awarding the injunction, he acted ]u-
diciatlj, and no other 'view can be taken [*az
of his action in this case, when the record and
then in tbe other, that a Iceaaurj eir<cutlan ahuuld
taeue for coufeasedly more than In due, by wblcb
the peison of the debtor aboiild be Imprisoned,
probably Interminably, and his [>rot)crty sold. CoD-
gresa muat have de^lKned to leave aucb cases to the
Mr. Randolph'la cbRrited In the account on which
"-----' --■,£[ ^y l-urser Tlm-
— "■ -lull, aud. ac-
'cd by blm,
for this aum Is certain. I
aball not Iniintre now wUetbrr Ibi- Irraiiury mlshl
laaue an ex>-cutlon tor It, or ou^Lt tu have applied
to a court of Justice. I will pioceed to other Items
ot the account.
Ela Is rccbarsed with slopa laaucd by blm. which
belonfts to tbe estate of sir. Tlmberlakc. aa ap-
is thlB to be aett'led at (he treasury, under tbil
act of Conereas. or dore tbe Inquiry properly be-
lle It charged with Cera
bit private atoiea. which h(
eprlaclplea
It tbem be applied
11.483.
I, belonging: f
.. . „ ..-,„ This Hem had
been allowed to htm on a former settlement of hla
- - -'I. It 1) not ajleerd that thin linen has been
piobably have <
Tbe United Slat,. ,
' ' Whether he la eulllled
• prop-
t of Justice, but 0
Tbe material Item allowed Id a lorincr settlement
of aceouniB end novr recharged. Is tbe amount of
advoncea on his pay-roll to ofllcera and men while
he acted aa purser of tbe CouBtttutton. li now ap-
pearlug l>y tbe menioraeda ol soica bv the evldenee
of Commodore fallernon and others, aud by tbe
general atate ot the accuunt. that porttons of these
advances were made out ot the money and atorea
of I'urser Tlmberlake, and out of tbe sblp'a
I will not make the obvious objection to this
Item that If Mr. Randolph paid the money or aold
the alorea of Mr. TImberlake on blx otvn account,
he le respontlble to tbe estate of Mr. Timberlake,
and that the Treasury Department of tbe United
States doea not (e|>i'cscut him. nor that credits
given for mone.v ptild liy Mr. RHudalph aa bis own
. ,,_ 'nded by allCBliiir that Ibc money
•ally l
nother
will I
by what authnrlty the Trensiiry Department
EciiJcs the aciounlB between Tlmljerlake'n repre-
aeDlutlves and Kandnlph. Ilut 1 ulll say. that this
Randolph out ot hla own fundi, and certainly di-
minished hla debt to the United Statea to that
amount. Conaequenlly, the nhole amouot lor
which execution Isbued was not due.
If I am correct In aaying that this summary
procees can bt uaed only lo coerce the payment
of the Bum actually due, not to coerce tbe payment
ot more Chan Is due, tbnt aueh controreiled ques.
tlon ought to be decided In a court of Justice: then
law doe.i not nuthorlie — lo a fnse ivblib ou^ht to
hove been eubmllled fo ■ court of Justice.
On both these points I am of opinion that tb*
agent of (he trrii.iury hiia eieecrled Ihe anlborlty
EK-cii by Iniv. and conaequcntly that the Imprison-
riven hla opinion. It Ib of no Impoilance, aa I
Mr. Bandolph la to be dlicbariced (i-om custody.
HUPBUtl GODBT OF THK UniTKD StATM.
the decree Are examined. In the ease of the
Arredondo, 0 Petera, 700, 711, this court
have said, the power to hear and determine a
cauee, is jurigdiction; it is coram judice, when-
ever a cause is presented whieh brings this
power into action. 6 Peters, 700. All i^ues.
tions arising in the case are to be decided.
28*] *Ibid. 700. By consenting to be sued
and lubmitting the decision to judicial action,
the United States hare considered it aa a pure-
ly judicial question. Dnd. 711.
liie United Statei, by adopting the proceed-
ing authorized by the Act of Congress of 1820,
claimed that the party against whom the war-
rant issued was within the act; and In the an-
24*] swer *to the bill presented to the district
K' idge by Mr. Nourse, his liability as an officer
resBBerted. The district judge acted on
this etate of things, and gave a final decroe up-
on them thus presented to him.
If the decree in thii case had been in the
form of chancery proceedings in England, it
would have been drawn up at large, and the
whole audit of the accounts would then appear
in the decree; and it would be seen that the
very accounts upon which the United States
have now instituted this action were the sub-
ject matter of the whole proceeding. In the
case of The Bank of the United States v. Ritchie,
8 Peters, 128, tbia court held that although
the decree did not set forth the whole of the
matters in which it was given, yet a party on
ft bill of review may take advantage of any-
thing appearing in tne record. The application
of tbis rule is asked to the case before the
court; and the objections on the part of the
United States, that the character and object
and purpose of this suit, and of the warrant of
distress, are not shown to be the same, will not
be urged.
Aa to the position that it does not appear in
the first proceeding that Mr. Nourse was "an
ofiicer'' within the objects of the statute; it is
sufficient to say, that however the money
otaimed by the United States came into his
hands, he was entitled to a legal and Talid set-
off to the claim. The United States proceeded
against him as "an officer," claiming from
2ft*] him a •balance for money he received
aa the regiater of the treasury; and he exhibit-
ed a set-off beyond the whole sum demanded
by the United States, to the satisfaction of
the auditors appointed by the district judge,
which report was confirmed by his decree.
Mr. Chief Justice Saiahall delivered the
opinion of the court;
The United States bad instituted their suit
against Joseph Nourse in the Circuit Court for
the District of Columbia in the County of
Waahington, on an account authenticated ac-
cording to law by the proper accounting officers.
The cause being at issue on the plea of non as-
sumpsit, the following case waa agreed between
the parties.
"In this ease It is agreed that the suit la in-
atituted upon a transcript from the Treasury of
the United States, which is annexed to the rec-
brought before the Supreme Court by appeal.
And it ii farther agreed that the defendant
shall have the same benefit of the proceedings
in said ease aa if tha same had been pleaded, or
as if eiven in evidence upon the trial of tbi
general issues; and upon tbia statement judg-
ment shall be given as upon a case agreed, and
either party be at liberty to refer to the printed
record in said case of Nourse v. The United
States, as if the same were fully incorporated
into this record."
The case referred to in this special statement
grew out of a warrant of distress issued by the
Treasury Department on the 14th day of July,
1829, directed to the marshal of the District of
Columbia, commanding him to levy and collect
the sum of tl 1,769.13, by distress and sale of
the goods and chattels of Joseph Nourse, late
regiutcr of the treasury. This warrant was
issued in pursuance of the Act of May 15th,
1S20, "Providing for the better organization of
the Ii£Mury Department." The third section
of this act enacts in substance that "if any
officer employed in the civil, military or naval
departmenta of the government to disburse the
public money appropriated for the service of
those departments respectively, shall fail to
render his nccounts, or pay over in the maimer
required by law any sumof money remaining in
the hands of *Buch officer, it shall be the I'tt
duty of the officer charged with revision of
the accounts of such officer, to cause the same
to be stated to the agent of the treasury, who
is required to proceed against the delinquent in
the manner directed in the preceding section."
That section directs the agent of the treasury
to issue a warrant of distress against such de-
linquent officer and his sureties, directed to the
marshal, who shall proceed to levy and collect
the money remaining due by distress and sale of
the goods and chattels of such delinquent officer
having given ten days' notice of such intended
sate; and if the goods and chattels be not sufli.
cient to satisfy tne said warrant, the same may
be levied on the person of such officer, etc.
The fourth section provides that if any per-
m shall consider himself aggrieved by any
warrant iasued under the act, be ma; prefer a
bill of complaint to any district judge, setting
forth the nature and extent of the injury of
which he complains, and thereupon the judge
may grant an injunction to stay proceedings on
such warrant altogether, or for so much there-
of aa the nature of the case requires; and tha
same proceeding shall be bad on such injunc-
tion aa in other cases, except that no answer
shall be required on the part of the United
States.
Under the authority given by this section, an
injunction waa awarded by William Cranch,
Chief Justice of the District of Columbia, and
judge of the Court of the United States for
that district, to stay all farther proceedings on
the aaid warrant.
In his bill, the complunant statea that his
public accounts as register of the Treasury of
the United States, and agent of the Treasury
Department in diabursing certain funds, and
settling certain accounts of contingencies and
other miscellaneous matters, and as agent for
the joint library committees of Con^ss, have
been settled at the treasury since his removal
from office; upon which settlement a pretended
balance has been found against him for the aum
of 111,250.20, for vbicb a warrant of distreM
has been issued by the agent of the treasury.
ISW
Xm Uhited Statm v. Noubbe.
whid hu been levied on bis landa, UnemenU,
good* Mid clutUU by the marahkl of the diBtiict.
Thkt the eaid account ia unjiut and illegal, and
■o far from any balance being due thereon to
th« Uaitad States, a considerable balance should
hk*e been struck thereon in favor of the com-
■ >*] plainant, 'aa appears by an account an-
nexed to the bill, which he deel*ies to be just
Th*t beaidea his regular dutfea aa register, he
wma, from the year 1790 till his recent dismis-
•ion from office, employed by the proper de-
partment of the government in the separate
bosineas of special agent for the disbursement
Df the contingent funds of the Treasury Depart-
ment, and for the settlement of the numerous
BGMHint* connected therewith. These duties
dSTOlved upon him great labor and responsibil-
ity, and occupied a great portion of his-private
hours. When he undertook this branch of
public employment, no stipulation was made
for the precise amount of compensation. The
naage of the treasury and other departments
of the government haa invariably been to allon
eonuniasions not only to unofficial persons so
employed, but to official persons ana clerks of
the departmenta, when such duties were distinct
from the stated duties appertaining to their
Slicea- That he haa regularly made out and pre-
•ented his account to the proper accounting
oAeera of the treasury; charging his commis-
rion at the rate of two and a half per cent, on
the amount of his disbursements; which, if al-
lowed, would leave the United States indebted
to Um in the sum of t6fi66.2i, which he be-
Haves to be justly doe to him.
The complainant further states that be is
advised that the act of Congress under which
the said warrant of distress is pretended to have
been Issued, being a law in derogation of com-
mon right, ought to be construed with the
Btmoat atriotneas ; but that on no reasonable con-
struction can this complainant or his accounts,
«ith« aa re^ster of the treasury, or as agent of
the }i]hit library committees of Congress, be
broo^t within the description of persons over
whom that act gives jurisdiction to the a gent of
the treasur;. The Ull prays for an injunction
•ad for farther relief.
The United States in their answer refer to
and rely on the general account of the com-
plainant aettled by the proper officer of the
KOVBrament, by which he was found indebted
b the snm of $11,7619.13. They admit that the
aonplainant had rendered an account, charging
a eommission of two and a half per cent, on all
tha moneys which had passed through his
hands in the different agencies in which he had
acted, exhibiting a balance in his favor of
18*] $0,387.87. 'They deny the right of the
eompIaJnant to a commiasioD on the moneys
diabursed by him; and contend that they
warn authorized by law to enforce the pay-
mmt of the balance due to the government
In warrant of distress. They therefore pray
tbat the injunction may be dissolved, and that
tbaj may be permitted to pursue their legal
rametfea for tha sum due to them.
The court determined that the said Josrph
Honrae was entitled to compensation for the
axtia aarriea he had rendered to the govern-
Baat fa tha agencies mentioned in tlie bill, and
apptrfatcd auditor* to ascertain the value of hia
I Ih ad.
services and compensation, and to report there-
on nitltout delay. The report of the Buditor4
allowed to the complainant a commission of two
and a half per cent, on the sum of $943.30S.tl3,
disbursed by him in the several agencies in
which he had been employed, leaving a balance
due to him from the United States.
The report was confirmed and the injunctioa
made perpetual.
Some fartlier proceedings were bad in that
cause which do not alfect the cause now before
this court.
This suit is instituted on the same account on
which the distress warrant was issued, anil
against which the decree of the district juiltf.'
was pronounced. The defendant relies on that
decree as a bar to the action. The Circuit Court
adjudged it to be a bar, and that judgment is
now to be revised in this court.
It is a rule to which no exception is recol-
lected that the judgment of a court of compe-
tent jurisdiction, while unreversed, concludcx
the subject matter as between the same particii.
They cannot again bring it into litigation.
An execution is the end of the law. It gives
the successful party the fruits of his judgment.
and the distress warrant ia a most effective exe-
cution. It may act on the body and estate of the
individual against whom it is directed.
It would excite some surprise if. In a gov-
ernment of laws and of principle, furnished
with a department whose appropriate duty it
is to decide queations of right, not only between
individuals, but between the government and
individuals a ministerial officer might, at his
discretion, issue this powerful 'process, [*29
and levy on the person, lands and chattels of
the debtor, any sum he might believe to be due,
leaving to that debtor no remedy, no appeal to
the laws of his country, if he should believe
the claim to be unjust. But this anomaly docs
not exist; this imputation cannot be cast on thu
Legislature of the United States. While it was
perceived that the public interest required a
prompt remedy against public defaulters, the
Legislature was not unmindful of the rights of
individuals, and provided that this remedy
should not be used oppressively. The party
who thinks himself aggrieved may appeal from
the decision of the treasury to the law, and pre-
fer a bill of complaint to any district judge of
the United Rtatea. setting forth therein the na-
ture and extent of the injury; who may grant
an injunction to stay proceedings on such war-
rant altogether, or for so much thereof as the
nature of the case requires. And Che same pro-
ceedings shall be bad on such injunctions as in
other cases, except that nn answer shall be re-
quired on the part of the United States.
Joseph Nourse, in pursuance of the perrais*
sion given by this section, did file his bill of
complaint, alleging, among other things, that
he owed nothing to the United States, and pray-
ing the judge to enjoin all farther proceedings
on the warrant. The injunction was granted.
and the whole cause thus transferred before the
district judge, who was directed to proceed
therein as in other cases. He had conseiiuent-
ly full jurisdiction over it. After s referenca
to auditors, according to the course of courts of
chancery In matters of account, he pronounced
hia final decree against the United States, and
awarded a perpetual injimction. This decree
S9
SuPRKiH CouKT or THi Uinm> Btath,
li now in full force, and irat in force nh«n thia
•uiE waa instituted. The act of Congress gave
jurisdiction in the specific case to the district
judge. He miglit liave enjoined the wbola or
■ part of the warrant. His decree might tiave been
for or againBt the United States, for the wlioto
or a part of the claim. On the sum which he
found to be due, he is directed to sHaesB the
lawful interest; lie may add sucli damages as,
with the interest, shall not exceed the rata of
ten per cent, per annum on the principal sum.
Had the district judge Gnallj enjoined a part
of the sum claimed b; the United States, and
decreed that the residue should be paid with
interest, all would perceive the unfitness of as-
30*] serting *a claitn in a new action to that
pcntion of the debt which had been enjoined by
the decree of the court. And yet between the
obligation of a decree against the whole claim,
and against a part of it, no distinction is per-
Aware of the difficulty of maintaining an ac-
tion on a claim an which a court of competent
jurisdiction haa passed a judgment still in force,
the Attorney -General questions the jurisdiction
uf the District Court, and rests bis argument
for the reversal of the judgment of the Circuit
Court chiefly on this point. He contends that
Joaeph Nourse was not an ofHcer contemplated
by tne act providing for the better organization
(j the Treasury Department; that the warrant
of distress could not legally be issued against
bimj and consequently, that this is not a case
in which the District Court can exercise juris-
diction. He refers to the bill of complaint,
which la drawn with a double aspect. It al-
leges that the complainant is not indebted to
the United States, and that, were It otherwise,
he ia not an ofRcer contemplated by the act
Mgainst whom a distress warrant can legally be
This argument has been considered.
Did the caM depend upon the question wheth-
•a Joseph Kourse, in any of the characters in
which he is charged In the account accompany-
ing the warrant, was an officer subjected by
law to this process, some difficulty would exist
in finding in the record suflicient information
on which to decide it. The following are the
Items of the account. To balance due^
As agent for the joint library
committee of Congress, f2,fi02j;S
As agent for paying the ex-
penses of stating and printing the
public accounts, 034.0a
As agent for paying the super-
intendent and watchmen of the
buildings occupied by the Stat*
and Treasury departments ],S2S.41
As agent for paying the ex-
penses of printing certiHcntes of
the public debt 1^11.29
As agent for paying the con-
tingent expenses of the Treasury
Department, 6,&!M.[H)
$11,769.13
Whether In any or all of these agencies, Jo-
SI*] scph Nourse acted *as an officer against
whom a distress warrant could legally be issued,
for any sum In which he might be found a de-
faulter, the record doss not furnish the means
of deciding dearly. But the District Oourt
took t . .
suggests this objection. It acted on the merita
of the case, and decreed agamit tha United
States on those merits.
(Jtill, however, the Attorney- GenenJ OOK-
tends tliat in so doing, it transcended it« jnria-
diction, and has taken cogniianca of a case
which could not legally be brought befor* it.
This is founded entirely on the assumption that
the warrant was issued against a peratm Ua-
bie to it.
Let this be conceded.
It would b« strange indeed if the Legislature^
intending to give a prompt remedy against a
particular class of debtors, should caiefully
guard that class against any abuse of the rem-
edy, and yet leave all other persons, whetbar
debtors or not, exposed to that abuaa; that an
officer liable to the process should be enabled to
correct it. If it issued injuriously, by appealing
to the law; and yet that an individual not lia-
bie to the process should be compelled to sub-
mit to the oppression and to aufler the wrong.
The act was not chargeable with this inat-
tention to the rights of individuals.
The sections wliich regulate the proeee^nga
of the Treasury Department on the warrant.
contemplate the officer against whom it may
be issued, and confine it to him; but when the
Legislature turns its attention to the individual
again.'*, whom it may issue, the language of the
law is immediately changed. The word per-
son is substituted for officer, and the act de-
clares "that if any person should consider him-
self aggrieved by any warrant issued under this
act, he may prefer a bill of complaint, etc., and
thereupon the judge may grant on injunction,
etc."
The character of the individual against whom
the warrant may be issued is entirely disregard-
ed by this part of the act. Be he whom lie
may, an officer or not an officer, a debtor or
not a debtor; if the warrant be levied on his
person or property, he is permitted to appeal to
the laws of his country, and to bring his case be-
fore the district judge, to be adjudicated by him.
•The District Court, then, had com- [*39
plete jurisdiction over this case, and its decl
sion is final. The judgment is consequently a bar
to any subsequent action for the same cause.
The judgment of the Circuit Court is affirmed.
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United States for the District of Columbia,
hoi den in and for the County of Washington,
and was argued by counsel; on consideratioD
whereof, it is adjudged and ordered that the
judgment of the said Circuit Court in this
cause be, and the same is hereby affirmed.
'THE PRESIDENT, DIRECTORS and [•»«
COMPANY OF THE BANK OF ALEX-
ANDRIA. Plaintiffs in Error,
TH0UA8 SWANN.
Promissory notes — demand and notice — frac-
tions of a day — variance in notice— practioe.
ISU
Thb Bank or JUekardku t. B^anx.
m: « Cond. Sep. laS, la tbst tbc demand at par-
Bant of a promlsicirj note ifaonM be made od In*
■■at daj a( kt^co; and mttM ot tlie drr*alt o[ tba
Banker tx pat Into tbt poal-offln rarli enougb to
k« Bcnt 1^ tba Dtat) of the aurccedlni da;.
Tk« note on wblcb the action In tbis nae warn
taoubt, ba*ln> become due at Ibc Bank of Alr-i-
f^"*-, wbete ft wai made pajftble. paymeat ot the
luna wan demanded at the bank before three
a'elMk on that daj. Notice of nanpajment was
pot tn tbe pcat-offlce on the fallowlnx da;, directed
la tba Isdotser, tba delendant In error, wbo ra-
ided In WaahiDZton. According to the eounn ot
the mall rrom AleXRodrla to the cltj of WaablnR-
Inn, all lettera put Into tbe mall before belf pagt
■b A'cloefc r. H-, at Aleaaodrla. woald leare Iber*
MB* tlBe datlQK tbe nlsbt and would be dellrer-
■Mc at Waihtnclon tbe neat Oar at anr time after
tmtt put elfhf e'eloek. Tbe defeDdant tn error
<— tended that a> demand of paTmeal waa made
before tbree oclock r. h., notice of tbe uonpar-
■Knt af the note ahould beTe been put Into tbe
poM-offlce on the aame da:r It waa dlBbonortrd, eerl?
•mOBKli to liaTe (one with tbe mall of that aTcn-
toc Tbe court beld tbat the law doea not require
Om ntmoat poaslble diligence In the holdn- Id eIv-
bV Dotlee of tbe dlabonor ot tbe note: all tbat la
nqnircd la ordlnarj reaaonable dItlfCDce. and what
•ball conatltDte rcaaoDable dlllgenee oagbt to be
Rttnlated wttb a tIpw to practical coneealenca and
tlie nana! conree of bnalneea.
Tke law, fenemllj apeaklnc, doea not resnrd tbe
tnctfooa ot a day : and aliboogh tbe demand of
pnjment at the bank waa reiinlred to be made dnr-
Imt banklni boura. tt leootd be onreaaonabla, and
•axlaat what tb* apeclal vertlet and* to bare been
me naage ot the bank at tbat time, to require no-
tS(« at DODpayment to be cent to tbe Indoraer
.. .__ -J the anbject.
It tbe time of aeodlnB notice la limited to trae-
tlona of a dar. It will alwara come In qaeillOB how
•wtniy notice eonld be eoDve/ed. The notice aent
tr Ute ■atl. the neit da; after tbe dtabooor ot the
MJL waa In doe time.
Tbe law ha* preecrlbed do particular form for
— eb notice. The object ot It (a merel; to Inform
- - ■ ■■ - mpannest b; thn — ' — — ■*
tkat ba la beld liable torltie paTment thereof.
Tbe note on which tbe anlt waa broaibt waa tor
91,400. drawn b; H. P. In taTOr ot the Afendant In
— A tbe notice deacrlbea It aa for tbe aam of
tSe w
a epeclal lerdlct found tbat
^d at the bank aa tor a note
,-,-- --, — ^ [ant In error waa not an In-
'I on nnr other note drawn b/ II. P. and dla-
■— * -■ *■ — "■ -ir placed there for collection.
e fall* wtthir ■
„ — „_..„ w.atea. 11 W .
Cond. Ben. 8TS. that ever; tarlanee, however Im-
aaatcrlal, la not taul to tba notice. It muat be such
S4*] ■ Tarlanca a* conTcj* no au&clrnt *knowl-
■daa to the part; of the particular note whlc^h baa
bc«* diabonored. It It doea not mtalead him. It It
oonecjB to blm tba real fact without any doubt,
tba Tnrlance cannot be material, eltbec to suard
e In tbe bank Indoned
■■ red a control-
suld not bare
tor Mltl* : ud thli
Ibu Met to *bo«
) b; tbe variance In tbe dale of the
■Mc, whlcb waa tbe miadeacrlptloo complained of.
Wlwre IE did not appear on the record that a
bond had been fiTen to tbe clerk ot tbe Circuit
Conrt to proaemte the writ of error, the coart eon-
Unned the eaae to a aabamnent da; of tbe term, to
■am lain whether a bond had been xlven.
IN ERROR to tlw CIrnilt Court of iiM Untt^
States for tb« Countr of Alexandria In tbe
Dhtrkt of ColomUa.
"nda wa* an action in the Circuit Court of
tt* Oonatj ot Alexandria, instituted by tlip
f payment.
, L. ed. U. B.
IVZrS L. ed. U. 8. 216i e L. ed. U. B. *4X
Bttl* and Notes ; time allowed tor malllni; check
•r BMIoa ot dtahonor, aa affected b; the hour at
vUd tb* Ball cloaea or depart*, la* not* to t
plaintiff* In error agaJnat the defendant, on «
Sromiasory note drawn b; H. Peake, and in-
oraed by tbe defendant, payable and negotia-
^le at the Bank of Alexandria.
The flrat count in the declaration aets fortb tht
lability of the defendant on a note for 11,405,
dated tbe 23d day of June, IRZQ, and payabia
in aixty daya from the date thereof. The deC'
laration state* that after the time limited in tha
note for the payment thereof, viz., on the 2fith
day of August, la2S, the note waa abown and
presented to tbe drawer at the bank, and pay-
ment requested of the *aine, which waa re-
fused, of which notice waa afterwards, on the
said 25th day of August, given to the defend-
ant. The second count was tor the sum of
Sl,500, money laid out and expended. Tb*
defendant pleaded non assumpsit, and on the
trial of the issue the jury foimd tbe following
special verdict;
"We, of the jury, find that one Humphi*7
Peske, on the 14th day of March, 1S26, ob-
tained, for hi* own accommodation, a discount
at the bank of the plaintilfs for the sum of
11,457.00, on his note for that amount, indorsed
by defendant on the day and year aforeaaid,
payable sixty days after date ; that the said dis-
count was regularly continued from that time
until the 5tb day of February, 1828, by new
notes of the said Humphrey Peake for this
same sum, indorsed by the defendant, and dis-
counted at tbe said bank, to take up the pre-
ceding notes, the sum* diseoubted on vhicli
new notes were re^larly so applied; that on
the said 5tb day of February, 1828, a note ol
the said Humphrey Peake for tl,4ST, of that
date, payable sixty day* after date to the defend-
ant, and *by him indorsed, negotiable ['JS
and payable at the said bank, was there dis-
counted towards taking up a note of the said
Humphrey, indorsed by defendant, and dis-
counted aa aforesaid, for the aum of |1,4ET.S0,
which became due on tbe said Sth day of Feb-
ruary, 1828; and that the discount so made on
the said note of tl,4S7, on the said Sth of Feb-
ruary, was regularly continued by a series of
notes of the said Humphrey, indorsed by the
defendant for the said last-mentioned sum nego-
tiable and payable at said bank, until tbe 23d
of June, 183Q; all which discounts, so made,
were applied regularly towards the discharge
of tbe notes before discounted a* aforesaid at
the said bsnk. We find tbat, on the 23d day
of June, 1829, a note of the said Humphrey
Peake for the sum of (1,457, indorsed and dis-
counted a* aforesaid, became due and pavable
at the said bank; and tbat, on the said 23d day
of June, 1820, the note in the declaration men-
tioned, was, at the instance of the said Hum-
phrey, discounted at the said bank as and for
a note of *1,457, for the purpose of taking op
the note of the said Humphrey, indorsed and
discounted as aforesaid, which became due on
(he said 23d of June; and that the aum of $1,-
441.45, the discount so made, wa* applied
towards that purpose; that, when the said dls-
ronnt was made, the said note was, from refer-
ence to the figures in the margin only, mistaken
as a note for 11.467. We find that the body
nnd signature of the said note, dated the ZM
day of June, including the dote and the figures
in the margin, are wholly in the handwriting
of tbe said Humphrey, and were written by
35
SCPBEIflf COUBT OF T
I UHITD) SiATia.
IS3I
him; nnd that the iDdoraemcnt of the name of
the dcfrndnnt Ihereon is in the handwriting of
the defendant, and was made by him for tlie
purpose of having the said note diBcounted at
the aaid bank for the object before expreaaedj
and we find that the said note and indorsement
AN in the words and figures following:
"Alexandria, June 23, 1829.
"•1.467.
"Sixty daja after date, I promise to pay to
Thomas Swann, Esq., or order, for value re-
ceived, fourteen hundred doilan payable and
negotiabl* at the Bank of Aicxandna.
Humph. Peake.
"Indoracd—^Tho. Swann.
»••] '"We find that, d-jrinj; the whole
perioit of time before mentioned, that is to any,
from the 5th day of February, 1H28. and from
thenre to this liny, (here was no other note of
the said Humphrey, indorsed by the said de-
fendant, discounted by the said bank, or in the
■aid bank for collection or otherwise. We And
that the business of the laid bank always has
been, snd yet is transscted at their banking
house in the town of Alexandria; and that the
defendant, on the 2Sth day of August, IS2»,
for a long time before, and ever since, was, and
ever has continued to be an inhabitant and rcs-
from Alexandi^a. We Hnd that, during the
whole month of Auf^ist, in the year 1829, the
mail from Alexandria to the inid city of Wash-
ington, and toother towns on the mai:i northern
route, was made up once a day ; that it closed at
nine o'clock P. M-, on each day, and that letters
for Washington and for the north, put in after
half an hour after eight o'clock P. M., were not.
in the general course of proceedings in the
post-ofllce at Alexandria, sent by the mail
which closed on that day, but were postmarked
OD the succeeding, and sent by the mail made
op on such succeeding day; and that all letters
for Washington and the north, put into the
post-office at Alexandria before half past eight
a'clock P. M., were post-marked on the day they
were so put in, and sent by the mail which
closed at nine o'clock P. M., as before stated;
that the mail for Washington and other north-
ern towns, which was closed at Alexandria, as
aforesaid, at nine o'clock P. M., was sent off
from Alexandria between twelve o'clock at
night of the same day, and two o'clork in the
morning of the succeeding day; sometimes,
but Tery rarely, leaving Alexandria before
twelve o'clock at night, as aforesaid, and gen
erally leaving that place about two o'clock in
the morning of the day succeeding the making
up and closing of the mall at Alexandria, as
•foresaid.
"We find that letter* from Alexandria to
Washington, sent hj mail, were, during the
period aforesaid, delivered ont at Washington
at any hour after eight o'clock A. M. on the
day succeeding that on which the mail was
eloseil at Alexandria for that place. We find
that the houra of business at the said Bank of
Alexandria, durinfr the winter, have always
been from ten o'clock A. M. to three o'clock
ST] P. M., and, during the summer, 'from
nine o'clork A. H. to three o'clock P. M.;
«ftcr which latter h<nir the clerks and officers
4S
left the bank, and attended no mora to link-
ing business during the day.
We find that it is, and for a long time paat,
including the year 1829, has been the usa^
of the Bank of Alexandria and other banks id
the town to deliver out to the notary, on each
day at three o'clock, all notes and bills dis-
counted by, or to be paid at auch banlca, whid
have become due on such day, for demand
and protest; and for the notary to return bimA
notes, with the protest for nonpayment to tha
said Itank, on the morning of the sueeeedina
day, soon after the lM,nk opened. We find
that, on the 2fith day of August, being Um
third day of grace on the note in the declara-
tion mentioned, it was, by Benjamin C. Aahton,
teller of the said bank, and during bank hoim
of that day, presented at said l>ank to Jama*
L. M'Keona, cashier of the said bank, for
payment; that the said M'Kenna examined Um
bouka of the said bank, and found that th*
Humphrey Peake had no money or funda
and stated that fact to the said teller;
pay the said note; and Uiat t>sfore the 28th
day of August, 1B29, the said Peake had
failed, and nad left the town of Alexandria,
where he had before that time resided.
"We find that the said note having remained
unpaid on the said 25th of August, IBSS, tt
was, on the closing of the bank on that day,
taken out by the said Benjamin C. Ashton,
who was also a notary public, for protest, kid
was, on the morning of the 2ath of Aug'.int,
IS29, returned to the said bank with the pro-
test, which was drawn up on the said .!6th of
Au){UBt, 1820; and that the aaiJ note, in the
said declaration mentioned, remained in the
said bank aa its property, from the said 23d
day of June, 1829, until about the 30th of
October, in the same year, when it was deliv-
ered to their attorney for suit, with the excep-
tion only of the time it was in the bands of the
said Benjamin C. Ashton as notary, aa afora-
said.
"We find that, on the 20th day of August,
1B29, and long before the closing of the mail
of that day at Alexandria, that Benjamin C. '
Ashton, on behalf of the said bank, put inta j
the post-office at Alexandria a letter written by j
him, addressed to the defendant at Washing-
ton, intending by the said letter to 'give [*SS
him notice of the nonpayment of the said nota,
which letter was post-marked at the post-offics
in Alexandria, 'Alexandria, D. C, Angust
ze,' and is in the words and figures following:
"Alexandria, August 26, 1S29.
"Sir: A note drawn by Humphrey Peftks
for $I,4ST, dated Alexandria, 23d of June,
1B29, psysbte to you, or your order, at tlia
Bank of Alexandria, sixty days after ita data^
by you indorsed, and for the payment of whiA
you are held liable, is protested for nonpay-.
ment, at the request of the President, Directon
& Oo. of the said bank.
"Respectfully, your obedient servant,
"Benj. a Ashton, Not. Pak |
'"Thomas Swann, E^., Woahington Oty.
"Which letter woa racelved hj the defend-l
nnt in due course of mail, on the STth day til
August, 1829. We find the protest befoial
referred to in the words and figures followinnl
Petara t.:
Trk Bark or Alkxuidmu v, Bwajhi.
•V-^BT.
"AlcsandrU, June 2S, 182S.
Thonaa Swann, Esq., or onler, for __
eeived, fourteen hundred dollara, payable and
K^otuUe at the Bank of Alexandria.
"^umph. Peaks.
''iBdotsed^Tho. Swann.
■United StaUe of Ameri<m, District of Oo-
hmUa, County of Alexandria, to witi
**On t&e 26th day of Auguat, in the year of
I oar Liwd 1829, at th« request of the President,
I Piiartora and Company ol the Bank of Alex-
I MiidrU, I, Benjamin C. Ashton, a public notary
I la wad for the County of Alexandria, by law-
t fol authority duly Bppoint«d and qualified,
a dwelling in Alexandria, in the county and
e dlatriet aforcaaid, demanded payment of a
note, of which tho above la a copy, of the
J cashier of the Bank of Alexandria, at the said
J bank, and he anawered that no fundi were
:: there for Its payment; and, on the 2Bth day of
'ii >•*] the same month, I 'mve notice to the
± indoraer, by mail, that the drawer of the aald
I - ■otehBd failed ta pay it.
3. "Wterenpon, 1, the said notary, at the re-
i ^eat kforaaald, did protest, and by these
1-. preaenta do publicly and solemnly protest, as
well against the drawer and Indorser of the
lia wd note, as against all others whom ft doUi
5 ■ or may concom, for exchange, re-ozehange,
if sad all costs, charg^eE and interest already In-
i-i eorred or to be hereafter Incurred, for the
, tf want of paymeirt thereof.
s.: "Tn teetimony whereof, I hare hereunto set
, r ^7 ^ad, and affixed my seal notarial, the day
It' ■M ye«r aforaa^d.
, ,■ "(L 8.} Beni. a Ashton,
, . '^Notary PubUo.
a -Proterttng, $1.75.
^.- 'Ve find that no part of the said smn of
*■' $IM0, of the note m the declaration men-
o" Uoned. has been paid.
<";' -We find that the said Bank of Alexandria
"* kept a hook called an offering book, in which
the different sums and notes offered for discount
it!* vera entered; and that this book was always
K* laid before the board of directors on the dis-
isi> eoimt days of the bank, and the discounts
* * agreed to be made by the board regularly
iW' Mtered In the said discount book.
-,^ "Ylt nnd that the Z3d day of June, 1S29,
n P was one of the regular discount days in the
111* laid bank; and on that day the said book was
od* laid before the board of directors, and, among
W4 he other entries made for discount on that day,
iDb**. was one in the following words and figures;
1.10 ""Homphray Feake, l^omas Swann, Hnmph.
« r*. Peaks.
4:* " 'June 23, August 22, 14BT, ISM, 1441, fl.'
r, ■: ' "We find that the said entry was Intended
ia^ to mean that the said Humphrey Peake had
.rf*** tfcred for discount his note for Sl,467, in-
' «i^ iorsed by the said defendant, and payable
a^ dxty days thereafter. We find that no note
hr Vl,r4G7 drawn by the said Humphrey Peake,
,i«A ud indorsed by the said defendant, had been
gl. f* ifftred for discount to the said bank on the
^ IK aid 23d of June, 1820 1 but that the doU in
^ i^ Ihs declaration mentioned was on thst day
^K' gffmd to the said bank for discount, and for
at I' tte pnrposa «f renewins for that amount the
I note of $1,467, then dot at the said bank.
I We find that no note for (1,400, drawn by the
said IL Peake, and indorsed *by the said [*40
defendant, was ever entered on the books of
the said bank for discount; nor is there an^
entry made upon the books of the said I
that any such note had ever b
by the said bank.
"We find that, upon the offering for tl,4C7
before stated, the board of directors agreed to
make a discount for that sum, and the same
was entered in the discount book as discounted,
and the proceeds carried to the credit of the
said Humphrey Peaks. We find that the said
discount was intended by the board as a ra-
newal of the note of 11,457 then due to tbs
said bank; and that the note In the declaration
mentioned was intended to be designated in
the offering book, by the said description of a
note drawn by the said Peake, and indorsed
by the defendant as a note for |1,4G7.
"If, on the whole matter aforesaid, the law
be for the plaintiffs, then we find for the plain-
tiffs, and assess their damages to the sum of
11,400, being the principal sum due, to bear
Interest from the 26th day of August, 1820,
till paid; and If the law be for the defendant,
then we find for the defendant."
Upon this verdict the Circuit Court gave
judgment for the defendant, and the plaintiffs
proBccuted a writ of error to this court.
Mr. Swana objected to the plaintiffs' pro-
ceeding in this case, as it did not appear on the
record from the Circuit Court that a hood had
been given to the clerk of that court to proae-
cute this writ of error. The court continued
the ease to enable the parties to ascertain by a
reference to the clerk of the Circuit Court u a
bond had been given. On a aubsequent day of
the term, a certified copy of the appeal bond
as filed in this court, and the a^punent in
lis ease proceeded.
Hr. Jones, for the plaintiff in error.
The first objection Is to the notice of protest,
lat it was not expedited by the nota^ from
Alexandria In due time.
The facte were, that the last dav of grace ex-
pired on the Z5th of August, and at the eloe-
}f the bank, on that day, at three o'clock
[., the note, after having been duly pre-
sented and demanded at the bank, was given out
to the notary 'for protest, was duly pro- [•41
tested the same day, and on the next, at the
opening of the bank at nine o'clock A. M., was
return^ by the notary into bank, under pro-
test; and by the regular mail of the same day
(26th of August), the notice in question was
sent to the indorser in Washington. The bank,
as nana], remained closed, without having any
of its officers present, or any business trans-
acted there, from three o'clock P. Af. on ths
26th, to nine o'clock A. M. on the ZSth. The
daily mail, from Alexandria to Washington,
was closed at half -past eight o'clock P. M., was
aent on the same evening, and opened next
morning at eight o'clock. And the precise ob-
lection is that the notice was not expedited
ly the mail that closed at half-past eight o'clock
P. M., the same day the note fell due sad was
protested.
It is considered to have bPen fully settled ss
the law, and this is thp known custom with all
the bsnks in the District of Columbia, that no-
4t
Surauic CouKT or thi Unmm Statis.
Uoe of the dishonor of b note shall be given the
day after Che dishonor of tbe note. On the
strict principles of the common law, the notice
could not be sent until the following da.ji as,
according to those principles, the part;? to the
note had the whole of the day on wbicb it be-
came due to pay it. The cases to show that
the notice to the indorser Is properly sent on the
day following the nonpayment, are in Chitty
on Bills, 22G, 330 1 Lenox t. Boberta, 2 Wheat,
373; i Cond. Rep. 103.
The second objection goes to the certainty of
the letter of DOtice, addressed by the notary to
the indorser) which, it is said, gave a wrong de-
Kription of the note, as being one for S1,4G7 in-
stead of $1,400; the latter sum being that in-
serted in the body of the note.
In point of fact, it is found that 11,457 was
the true and proprr amount for which the note
ought to have been drawn, and was intended to
have been drawn, and that was the amount set
down in figurei on the margin of the note; but
by a mistake committed by the drawer himeelf,
in writing out the note, and overlooked by the
officers of the bank when it passed for discount
(and in fact discovered for the first time when
the objection was taken at the trial) the sum
was written "fourteen hundred," omitting the
■^fty aeven," in the body of the note. The
original discount, commencing in March, IB20,
43*] 'had been of a note for $l,4S7.60,and run
on, by renewals of the note every sixty days for
the same amount, till February, lfi2S; when it
was renewed and continued for the precise
amount of $1,457, and so run to the time of put-
ting in the note now in question, which was dis-
Munted in June, 1829, as a renewal and continu-
ation of the same standing accommodation, and
"as and for a note of $1,467," which was the
precise amount of the next preceding note re-
placed and taken up by it. The verdict ex-
firessly finds that no note drawn by Peake and
ndorsed by the defendant as a note for $1,400,
was ever discounted, or offered for discount, at
the said bank; but that all the entries in the
hooks of the bank import the discount on the
23d day of June, 182'J, when this note was dis-
counted, as a note so drawn and indorsed, for
$1,457, and for no other sum.
The object of the law is, that the party to
the note, who is to be held responsible, shall
have substantially a notice of its dishonor— suf-
ficient notice to enable him to act for his own
protection. This was done. The letter from
the notary accurately described the note which
the defendant supposed he had indorsed, with
the exception of the amount of the same. The
parties to the note supposed it to have been
given for $1,457, •« ft was intended to renew a
note due at the ttank for that sum. Cited
Mills V. The Bank of the United SUtes, 11
Wheaton. 431, to show that no form of notice
to the indoreer of a promissory note is required,
If the party liaa, from the notice given, sufficient
knowledtce of the particular note which has
been dishonored, fl Cond. Rep. 373.
As to the form of the declaration, it was con-
tended for the plaintiffs in error that It la
not necessary to state anything but that a de-
mnnd and refusal took place; no particulars of
the demand need he stated. Cited, Chitty on
Bills, 248, 2fi2; 3 WcndeU'i Beports, 4Mi 6
Cowen, i24.
4*
Ht. Coxe and Mr. Swaui, for tha defendant.
If the case was one of a demurrer to tJie art-
dence, the court could infer everytbiug againat
the party demurring; but it is that of a speoial
verdict, and no other than the facta found out
be considered by the court. The jury do not
say that, substantially, notice waa given; but
that the notary Intended to 'give notice. I*4S
The case of Milia v. The Bank of the United
States, does not therefore apply. Cited, alio,
2 Johns. Cases, 337.
Upon the insufficiency of the nottoe, as f oimd
in the special verdict, Mr. Coze cited 1 Term
Rep. 167; 6 East, 3; 12 Maaa. AM; 14 Uaaa.
US; S Cowen, 303.
1. To sustain this action the bank must show
that they were entitled to this not«.
It is said they discounted it, and therefore it
belonged to them, Was it dlaeountedl Tha
ilnding upon this question is contradictory.
The note for $1,400 waa never offered f<K
discount, and acted upon by the board. Tha
olTer for discount waa for $1,457, and that waa
granted. There waa no action of the board
upon any note after thia.
The officers of the bank kept the note tot
$1,400, and considered that aa the discounted
note. Had they a right to do sol It was, to
be sure, a benefit to the indorser; but waa it in
tlie power of the officers to do itt Would the
bank be bound by it? If they could take a
note for $1,400, they might for $100. If tlia
bank had a right to reject this note, the in-
dorser had the same ri^t to do so. If so, it
was not a discounted note; and the bank had
no right to it.
2. U It was a discounted note, the next in-
quiry would be whether the notice of protest
'as properly given.
1, Was the note truly deseribedT If not,
then it became necessary to satisfy a jury that
it was intended to be truly described, and that
it was known by the indorser to be the same
note. 12 Mass. Rep. B; 2 Johns. Cases, 337.
The question whether the indorser knew that
the note alluded to in the notice was the same
ith that produced in evidence, was left to the
jury. The court soy, in the case in Johnson
that it was a fact proper for the decision of the
jury. In this case the jury have not found
this fact. They say that the notary intended
to refer to the note in question. But thoy do
not say that the indorser knew that the notice
alluded to the same note.
The knowledge of the indorser Is the most ma-
terial fact. The intention of the notary is of no
moment; and in this caie it is clear that ha
never intended to allude to a note of $1,400.
"'The verdict, then, bos not found what ['44
vas necessary to make this a good notice.
Can the court Intend it I (^ the court say
that the indorsen knew that this notice alluded
to the note of $1,400! This was decided In both
the above cases to be a question for the Jurjr,
and not the court.
2. Was the notice given in timet The court
lid have been entitled to notice that evening-
10, was he not entitled to have the notice
put into the post-office that evening!
In the case of The Bonk of the United States
V. Comeale, 2 Peters, 661, the ootut say it ia
P«Mra f ,
IBU
TBI Bakk of AiMXAJtoaiA t. Swun.
dlffieoK to Uj down uijr uni renal rule aa U
vhat ii due diligence in respect U> notioe to In-
donera. Many cases must lie decided upon
their own particular drcumstance*, however
desirable it may be when practicable to lay
down a general rule. In Lenox t. Roberts, 2
Wbeat. 373, the court SKy that the demand
ahould 1m made on the last day of grace, and
the notice of default put into the post-office
early enough to be sent by the mail of the suc-
ceeding day. This ojunion wa« founded upon
the special facta of that ease.
What would be the next mail In this case!
This notice, then, upon these grounda, aee
to be defectire. Upon this viev of the caae,
judgment cannot be rendered for the b«uk.
Now let us loolt at the declaration. It counts
npoD a note negotiable and payable at the Bank
of Alexandria on the £Sth day of Augan. To
charge an indoner upon such a not«, a demand
must be made at the Bank of Alexandria on
tke day of payment, within the banking hours.
2 Peters, MB. The declaration, then, must
■tnte n demand at the time limited for the pay-
ment. The demand by a holder may be made
■t any time within the banldng hours. If the
«nk possesses the paper this demand will be ( -
iddered to have been made by showing that
paper was there ; so that a demand, or that which
anoonta to a demand, must be shown In the
declaration. How, then, does this deelsntlon
stand r The demand is alleged to hare been
made at the bank upon Peake, after the ex '
tion of the time of payment. It may have
■t four, dz, eight, or ten o'clock.
4S*] *0f what avail is a denumd upon Feake
any where I Of what av^l ia a demand at the
bank after banking hours I The declaration,
thai, ia defective, and the defect not cured by
tbe mrdict. Qted, Slacum v. Poniery, 6 Cranch,
221; S Cond. Bap. 3S1; Bushton r, Aspinall,
Doo^aas, S78. But if not defeotive, the proof
doea not aupport It.
Ur- Justice niompson delivered the opinii
of the eourt:
This anit was brou^t in the Circuit Court
of the District of Columbia for the County
of Alexandria, upon a promissory note
made by Humphrey Feake, and Indorsed by
ths defendant in error. Dpon the trial the jury
found a special verdict, upon which the (
pve judgment for the defendant, and tbe
oomea here npon a writ of
B themselves Into two ques-
1. Whether notice of the dishonor of the
note was given to the Indorssr in due time.
2. Whether such notice contained the re-
qnisite certainty In the description of the note.
The note bevs date on the E3d day of June,
IS2>, and is for the sum of (1,400, payable sixty
days after date at the Bank of Alexandria.
The last day of grace expired on the 2Sth of
Angust, and on that day the note was duly pre-
sented, and demand of payment made at the
bank, and protested for nonpayment; and on
the next day notice thereof was sent by mail to
the indorser, who resided In the city of Wash-
■^^
. a general rule, as Ud down by this court
in LsHox T. Boberts, 2 Wbeat. 373; 4 Cond.
t L. ed.
Bep. 163, Is that tba demand of payment
should be made on the last day of grace, and
notice of the default of the maker be put in-
to the poet-office early enough to be sent by the
mail of the succeeding day. The special ver-
dict in tbe present case flnds that according to
the eoDTSfl of the mail from Alexandria to the
city of Washington, all letters put into the mail
before half past eight o'clock P. M. at Alex-
andria, would leave there some time during that
night, and would be deliverable at Washington
the next day, at any time after eight o'clock
A. M.; and it is argued on the part of the de-
fendant in error that as demand of payment
was made before three o'clock P. M^ notice of
the nonpayment of the note should have been
put into the post-office on the same day It was
dishonored, *e«rly enough to have gone [*4j>
with the mail of tbat evening. The law does
not require the utmost possihle diligeuea in the
holder in giving notice of the dishonor of the
; aUti
St ia ri
diligence; and what shall oonatitute reasonable
diligeneo, onght to be regulated with a view
to practical convenience, and the usual eoursa
of buriness. In the eue of The Bank of Co-
InmUa w. Lawrenoe, 1 Peters, 563, it ia said by
this eourt to be wall settled at this day that
when the tneta an asoartafawd, and an undis-
puted, what shall eonatltnte d«e diiigenee is ■
quaation of law; that this ia best caleiilated f or
Um establishment of fixed and uniform rules on
the subject, and la hi^y Important for the
safety of holdera of eommmial paper. The law,
generally speaking, doea not regard tbe frao-
tiona of a day; and aHhou^ ue demand of
payment at the bank waa required to be mads
during banking hours, it would be unreasonable,
and against what the special verdict linda to
have been the usage of the bank at that time, to
reoulre notice of nonpayment to be sent to the
iuaorsar on the aame day. This usage of the
bank correaponda with the rule of law on the
subject. If the time of sending the notice is lim-
ited to a frartional part of a day, it is well ob-
served by Chief Justice Uoamer, in the case of
Tlie Hartfonl Bank v. Stedman and Gordon, 3
Conn. Bep. 4H&, that it will always come to a
question, how swiftly the notice can be con-
veyed. We think, therefore, that the notice
sent by the mail, the next day after the dis-
honor of the note, was in due time.
The next question is whether, in the notice
sent to the indorser, the dishonored note is de-
scribed with sufficient cert^nty.
The taw has prescribed no particular form
for such notice. The object of it is merely to
inform the Indorser of the nonpayment by the
maker, and that he Is held liable for the pay-
ment thereof.
The misdescription complained of in this cass
in the amount of the note. The note is for
$1,400, and the notice describes it as for the sum
of ?1,4B7. In all other reepeets the descrip-
tion is correct; and in (he margin of the note is
set down in figures 1,467, and the special verdict
finds that the note in question was discounted
■t the bank, as and for a note of S1.45T; and
the question is, whether this 'was such a ['41
variance or misdescription as might reasonably
mislead the indorser as to the note, (or pay-
ment of which he was held renponsible. If tlit
defendant had been an indorser of a numlH" "'
4S
SuFinn CouiT or nm Uritd SrAna.
ISU
■otes for Humphrey Peake, there might be soma
plauaihic grounds for contending thkt this vari-
ance was calculated to mislrHd him. But the
Bpoclal venlict HndB that from the 6th da; of
February, 1828 (the date of a note for which the
one DOW in question wu a renewal), down to
the day of the trial of thii cause, there wu no
other note of the said Humphrey Peake indorsed
by the defentlaat, diicouuted by the bank,
or placed in the bank for collectioii or other-
wiie. There was, therefore, no room for any
mistake by the indorser as to the indentity of
the note. The case falls within the rule laid
down by this court in the case of Mills t. The
Bank of the United SUtea. 11 Wheat. 878,
that every variance, however immaterial, is not
fatal to the notice. It must be such a variance
aa conveys no siifHcient knowledge to the
conveys to him the real fact without any
doubt, the variance cannot be material, either
to guard hii right* or avoid hia responBibility.
In that case, as in the one now before the court,
it appears that there was no other note in the
bank indorsed by Mills; and this the court con-
aidered a controlling fact, to show that the in-
dorser could not have been misted by the Ta-
riancfl In the date of the note, which was the
misdescription then complained of.
The judgment of the (Srcuit Court Is accord-
ingly reversed, and the cause sent back with
itrections to ent«r judgment for the plaintiffs,
upon the special verdict found by the Jury.
This cause came on to be heard on the tran-
•eript of the record from the Circuit Court of
the United States for the District of Columbia,
holden In and for the County of Alexandria,
and waa argiied by counsel; on consideration
whereof, it is ordered and adjudged by this
court that >Jie judgment of the said Circuit
Court in this cause be, and the same is hereby
reversed, and that this cause be, and the same
is hereby sent hack to the said Circuit Court,
with directions to that court to enter judgment
for the plaintifTs, upon the special verdict found
by the jury.
48*) 'THE BANK OP GEORGIA, AppelUnta,
Judgment confessed by executor to secure de-
vfies valid against hla creditora— fraudulent
I Bod became hlmiielf tbe pur
Chaser of It; and in order to secure Ihe portions o
Ibe other dfvlMes. who were mlnort, confMsed i
ludsmeat, Jun' I, 1819, on a promlnaory nole, ]
isvor of two persons, without Ibtlr knowledge, li
a ■am supposed to Iw sulEclpnt to be • full secorltj
lor the amount of the porcloni of the minora.
Judcnient was kept In full speralioD. lij e
[ions regularlT Haued upon It, so as. under the laws
af Sooth CsrollQB, to bind the propenr of O. He
waa then engaied Id mercantile purauita, and bad
afterwards became Insolvent, and the claims of
the devisees of his falhpr, under the Judgment,
were contested bj bit creditors, as trandnleni : the
plaintlfTs, In Che Jndgmenl, harlDK na knowledge ol
It wben It was eon (eased, the amount of the sum
due to lb* co-devisees not hiTlng been ascertained
when 11 was CDufrHaeil. no dec^laratlon of tnat hav-
ing been executed hj the plalnllffH. and false rep-
reaeucatloaa of his BltuBtlon bavlng been made Bf
O. after the JudEment, whFreb; his creditors were
Induced to elve him time on a Judgment confessed
to them subaequently.
The Judgment of June 1, 1819. was held to b*
ralld. and the plaintiffs In that ludgment entitled
to the proeeedt of the sales of the estate ol G.. tor
the aatlsfnetlon at the amount actually doe to Uk*
w devisees by Q.
APPEAL from the Circuit Court of the ITnited
Statea for the District of South Carolina.
The appellanU, on the 4th of April, 182T,
filed their bill in the Circuit Court of the United
Statea for the District of South Carolina, to set
aside a judgment, or postpone the effect of the
same, which had been confessed by William S.
Oillett, in the Barnwell District Court of the
State of South Carolina, for the sum of t30,-
000.
The Judgment was founded on a promlsaot;
)te drawn by William 8. Gillett, in favor of
James Higginbottoro and William Provost, for
(30,000, dated the 1st of June, ISIB, and pay-
able on demand. The Judgment was confessed
on the 1st of June, as of the fourth Monday of
March, 181S. William 8. Gillett was the acting
executor of the last wilt end testament of hia
father, Doctor Elijah Gillett, by which a
of the estate was devised to
him, and other parts of the estate 'were [*4t
given to the children of the testator. By the
terms of the will, the executors had power to
sell such part of the estate devised, as it might
be beneficial or e:ipedient so to dispose of.
William S. Gillett was also, at the time of the
confession of the judgment, the guardian of
his infant brothers and sisters, the devisees of
his father of all the estate not specially devised
In December, 181 S, the personal estate of the
testator, Elijah Gillett, was appraised at $58,-
474, and on the 22d day of March, William S.
Gillett, after having selected or taken by lot
a portion of the estate to which he considered
himaelf entitled, sold, at public auction, a large
number of the negroes, and alt the personal
estate of the testator. The proceeds of the sale
exceeded W0,000, and William S. Gillett waa
the principal purchaser at the sale.
The juagment for $30,000 was confessed for
the use and benefit of the younger children of
Elijah Gillett, the testator, alt at that time
minors; was for about the sum which was aup-
pcised to be in the hands of their guardian after
the sale-, and was alleged to have been given in
trust to the said HiRginbottora and Provost, to
secure to them their interest in the estate of
their father.
At the tlmi
ment of the Ut day of June, 1819, Willia
Oillett waa largely indebted to the complain-
ants, and concerned in a mercantile house In
Savannah, the affairs of which, a witness
stated, he did not seem to consider very proa-
Krous; he did not represent the house to ba
nkriipt or likely to become so, but, on tha
I contrary, ba theu and long afterwarda appeared
Fetcm ■.
Tjic Bank la Gbuiuia v. Hiu>:i.NBOTtou.
•onfldeut that the afTura of the houie would
wind up Bstiafactoril;.
Ob the 2lBt of October, IS21, William S.
Olllett confessed a, judgment in the Circuit
Oouit of the United States for the South Caro-
UoK Circuit for the aura of t7|B49 in favor of
the Bank of Georgia, under an agreemeut that
tine ahould be given to paj the amount there-
<rf, via., one, two, three, and four yean.
The bili lUUe that the debt due on that
JudgmeDt being unpaid, the complainants, to
Mve utiefaction thereof, lately sued out a fieri
faciaa againit William B. Gillett oo it, under
whldi a Hufficient sum was made to paj the
KO*] debt due on the 'tame; but the proceeds
of the aaid execution are claimed under the
judgmeat in favor of Higginbottom and Pro-
T<Mt, for the payment and aatiafaction of the
aame. The bill praya for general relief, etc.
It appeared in evidence that on the l^th day
of April, 1S2S, James Higginbottom and Wil-
liam Provost, the plaiutiO'E in the judgment of
June 1, ISig, at tna request of Hobert, Isaac
■nd William Scarborough, who had been
named as co-executors of the will of Doctor
Giilett, assigned over, under their respective
hands and seals, to them the judgment of June
1, 1816, to the uae and benefit of the tesUtor's
younger children, for the purpose of securing
and assuring to them respectively, their intarest
in the testator's estate.
In answer to an interrogatory propounded to
him on behalf of the complainants, the counsel
who prepared the confession of the judgment
of June 1, 1S19, stated, "the judgment con-
feaaad by William 8. Gillett to Higginbottom
•nd Provost was prepared by me m a security
tor the parts or portions of the younger ehil-
dm of Doctor Elijah Gillett, deceased, of the
eatat« of their father; and I think that at the
time, I wrote or sketched off a draft of a dec-
laration of the trust upon which the judgment
was given, to be signed by Higginbottom and
Pnroat, neither of whom were present. I do
■Ot recollect to have seen this paper after it
wu executed, although I may have seen it. In-
deed, I always believed that I had seen it till I
came to tax my recollection for the purpose of
answering this interrogatory. My Impresalon
baa alwaya been that such a paper was exe-
eated, and I have now no doubt but that it was.
I reodlect perfectly that Gillett expressed a de-
termination not to confess the judgment unless
a declaration of Its object was signed by the
•ominal plaintiffs."
The plaintiffs in the judgment of the 1st of
June, 1S19, issued a fieri facias to October
Term, 1S19, of the Barnwell District Court,
which waa entered in the sheriff's office on tho
Uttb of July, 181S; an aUas fieri facias waa
lodged in the sheriff's office on the Sd of Febru-
ary, IS24; and a pluries fieri fadas waa "lodged
to bind." in the sberiff'i offioe, on the 31 st of
December, 1824.
The accounts of William S. Gillett, as the
' : of his father, were audited, and a
Bl*] 'After appropriating to the payment of
tb« balance due by the executor on the judg-
BMnt to Higginbottom and Provost, all the
proceeds of the aales under the judgment of
the Bank «f Gecw^a, there would be a defldt.
to make up the amount due by William B.
Gillett to his co-devisees and legatees, of |I4,-
13S.e6.
On the 25th of June, 1825, the Circuit
Court, by a decree, held that the dec amlion of
trust contained in the assignment of the judg-
ment of the Ist of June, 1810, executed 1^
Higginbottom and Provost, under which the
minor children of Doctor Elijah Gillett claimed
precedence, "was a suflicient declaration In
writing; and that a regard to the interests of
the minors, sanctioned the court in sustaining
the iudgnient for any amount that should be
justly due to them." Afterwards, on the 22d of
July, 1832, the Circuit Court gave a decree III
favor of the defendants in that court, aiu) Ibo
complainants entered this apppol.
The esse was argued by Mr. Key for the sp-
pellants, and by A&. Preston for the nppellees.
By Mr. Key, for the appellants, it wils con-
tended that the evidence in the case shows that
the judgment in favor of Higginbottoin and
Provost was confessed on a promissory note for
$30,000; that that note was given on no con-
sideration, and was never delivered, but waa
only signed by Gillett as a foundation for the
judgment; that neither of the parties, the pay-
ees of the note and the plaintiffs in the judg-
ment, nor the cestui que trust, knew of the note
or judgment, or assented to it, till several ypurs
afterwards; and that there was no written
declaration of the trust connected in any man-
ner with said note or judgment; that nothing
was due from aaid Gillett, at thst lime to his
brothers and sisters, and that lie was then
largely indebted to complainants.
The appellants claim a reversal of the decree
of the court below on the following grounds:
I. That the promissory note, on which the
judgment was confessed, ii without considera-
tion, and the judgment founded upon it being
a voluntary judgment, must be declared void,
or postponed to the demands of bona fide cred*
'2. That if a judgment may be taken [*6S
cover a future debt, the intent should appear
on the face of the proceedings; or at all event*
be evidenced by contemporary written declara-
tions, in a solemn and authentic manner. But
in this case, the judgment is assumed aa a ae-
curity for a debt to third persons not named is
the proceedings, growing out of transactions
foreign from any allegations in the pleadings,
and unconnected with the purposes for which
it is now used, except by parol evidence.
3. That the sanction of such a security for
confidential and favorite creditors will be at-
tended with great inconvenience, by putting it
in the power of the debtor and irresponsible
persons owing no duty to the supposed cestuis
que trust, to mske the judgment good or bad,
and more or less, at their pleasure; to introduce
all the mischief of secret liens to the injury ot
bona fide creditors, and to corrupt the charac-
ter and destroy the certainty of judicial rco-
The facts in this case show a judgment cred-
itor in 1825, with an execution (his judgment
in South Carolina obtained in 1821). stop^ by
the claim of another creditor with a judinneut
in 1819.
He cannot be thus stopped.
1. Because the plaintiffa in the prior judg
<7
SufieuE Couar of tux Unitbi Statics.
a (fieri fnciae), a
1 leavi
them in the therilT's ottii^e "to bind.
he cited, HoberU on Fraud, Con. 198, 100, 200-
20S, en. 672; 11 Johns. Rep. UO; 17 JohuB.
Ecp. 274.
It is thuB if the judgment of IBtS wu fair.
£. But it WBB not fair, bduiise it was intend-
•d to benefit the defendant in tlie judgment, by
keeping hia property in his posseBSion protect^
by thia lien. Thia object for the confession of
the judgment ia shown in Patterson'a depo-
■ition.
3. Again, the judgment ia fraudulent, be-
Cftuse there was nothing due to the plaintifTa.
The judgDi«nt, and the note on which it was
foanded, it is admitted, were for account of
DO debt due to plaintiffs, but for same trust to
The judgment ts absoliite. No condition, no
nleaae, no such trust can be listened to. It
5S*] must appear on the record of 'the judg-
ment, and can be shown nowhere else. Parol
eridence ia iniidmiHaible to show an absolute
judgment to be a conditional one; eircept (which
I* not pretended here) in a ose where there
was a mistake or a fraud.
4. Again, it cannot be shonn, becauae the se-
curity, whatever it be — a judgment or deed —
must contain within itself the terma and condi'
tiona of the transfer, and a poBsession corre-
sponding therewith. This is the doctrine of
Ihmiltoit V. Bussell, 1 Cranch, 300; 1 Cond.
Rep. 318, though doubted in 3 Cowen. The
United States v. Hooe, 3 Cranch, 73; 1 Cond.
Rep. 468.
Here there is neither. The trust is attempted
to be ahowQ by parol evidence not connected
with the instrument of transfer, and the poa-
MiMOQ of the property ought to have been de-
vested by an execution levied. Conard r. The
Atlantic Insurance Company, 1 Peters, 3B6.
C. But it could be shown elsewhere; here it
!• shown nowhere. There was never any writ-
ten declai-ation of this trust. That adopted as
uch by the court below is not such; it is a mere
assigument of the judgment. And again, it
was secret, and kept in the plain tifTs pocket.
a. But take it as a sufficient declaration, and
this trust is found to have all the marks of
fraud in Twine'a case, and collected in page 42
of Hammond's Chancery Digest.
It is secret; it is for "all" the debtor's prop-
erty; it is for future debts; and the purpose u
concealed by an absolute judgment to other
persons, for a different consideration. The poB<
■esaion, use and expenditure of the property is
left in the defendant by never levying execu-
tions. It was made without application of the
{R«tended creditor, and without his knowledge;
uid ia for "all" his property, when less than
bklf would have been sufficient.
Mr. Preston, for the appellees, stated that
the question before the court was as to the pri-
ority of lien of two judgments. If in the
judgment there were any technical defects, the
G.rty who could sliow such defects might avail
mself of them in a court of law.
There can l>e no doubt but that if the judg-
ment of June tst, 1810, in favor of Iligginbot-
tom and VrovoHt can inure to the beneSt of
^OM for whom it was confessed, tlie legatees «f
■Doctor Gillett, it wiU b
supported. The (*K4
other, tite priority of the firat judgment will be
auifered to prevail.
'be remarked 1^ the court that If the
ceptions taken to the Brat judgment will ap-
f, they are equally, if not more applicable to
t second. Tne second judgment was c
fessed in 1821, and no proceedings took plane
upon it until 1827. This was two yean after
the time given on It bod expired, sjtd six fmn
after it had been rendered. There is no evi-
dence of any declaration In writing that this
judgment waa given on a trust to aecure tba
bank for a debt, the whole of which waa not
due, and for the payment of which the plain-
tiffs had given time; and ^et the complamanta
seek to impugn the prior judgment, upon prin>
ciples which will operate more forcibly against
their own. While the whole amount of the
ju^Jgment for 930,000 was actually due at the
time it was confessed, the notes of the defend-
ant in the judgment, in favor of the complain-
ants, were running In the bank, and changes
were made in tbem by substituting other par-
ties to them.
Supposing the judgment on which the appel-
lants rely to be grad, how does that under
which the appellees claim the fund in contro-
versy standi A bona fide debt is shown to be
due to them, and thus there waa a, valuable
consideration for the judgment, and it was also
a bona fide consideration. The devisees of Doc-
tor Gillett were the bona fide plaintiffs in the
judgment, and nothing of a character to affect
the integrity of the proceeding is alleged against
them or the trusteea.
The record shows that the soles of Doctor
Gillett's property were made by the executor,
who was also guardian of the miaor co -devisees,
and that thereby the debt from him to them
was incurred. The minors were entitled to have
the amount due to them secured; and this could
best be done by a judgment, known to bo for
the purpose of security. By the laws of South
Carolina, executors do not give security, and
tliis made the proceeding which was adopted
yet more proper, necessary and obligatory.
It ia said that Higginbottom and Avvost had
no interest in 'tlie fund intended to be se- [*S6
cured, and that, therefore, the confession of
the judgment was a fraud, and a nullity. The
parties are in a court of equity, and the court
will make the plaintiffs trustees for the minors,
and if necessary, will compel them to act for
It has been argned on the part of the appel-
lants that, although the judgment may have
been valid when confessed, the security It gave
has been loat by the laches of the parties to it
A practical evidence of the law of South Car-
olina, as to the effect of judgments, ia afforded
by the conduct of the appellants. They wait
six years before they proceed on their judg-
The most usual practice in South Carolina in
securing debts la by judgment. -This course of
proceeding lias been recognised for thirty years
in that State by the judicial tribunala there, aa
well for prospective as for existing debta. Thla
has been established by the uniform decisions
reters ff.
Tux Bark of Gboboia v. HioaiKBOiTOM.
«( t^ mhitU of the State. Qted, Greenwood
r. Kftjior, 1 MXtord's R«p. 414, decided in 1S20;
I B*r« Rep- 263: 3 Des-ius. Itcp. MS; 4 M'Cord,
An execution bindi until length of time fur-
^■bes presumption of eatii faction. Even a
dormant execution !■ a perpetual lien. This !■
4(M well established b; the courta of South
Ouolina to be broueht into doubt. The State
▼. Laral, 4 M'Cord'a Rep. 342. In the caie
bafore the court, the eiecutiona have been teg
Vlarly kept in operatiou.
It ia aaid that thia case ia like an absolute
deed of assignment, without poaseasion being
given of the property aaaigned.
That there was a aecret trust, and this Inval-
idatea the judgment.
It ia a radical error to anppoae there is no dif-
ference between an abeolute deed and an abso-
lute judgment- Judgment* are always absolute,
jct they convef no right of property, but only
give a lien, which is carried into beneficial ac-
tion by an execution. Judgments give a right
to Mir the property of the defendant, but not
poaaeaaion of the defendant's property.
Ute pOBsessloD of the property of the de-
fadant by him, la not adverse to the plaintiffs
rif^t to proceed against It The right of pos-
■aaaioD is necessanly in the defendant until a
lavj; and then the question of poasesBJon is be-
tween him and the sheriff, not the plaintiff in
the execution.
S6*] *The lodging an execution with the
■hniff no bind," is notice to all the world that
the lien of the judgment is asserted.
The doctrine of the appellant's coansel does
not apply to a ease of thij kind; and the eases
in 1 Cninch, 315, and 3 Cranch, 8S, when exam-
ined, do not sustain the claims made upon
them. So, too, aa to the case in 6 Johns. 337.
The operation of a judgment is not to prevent
delay; for tfae plaintiff in any other judgment
may proceed when he pleases and sell the prop-
erty of the defendant, and take the surplus
after satisfying the prior judgment.
It ia said there was a secret trust, and that
thcra ifaould have been a declaration in writing
to show the puTpoaea of the judgment.
Ia the caaB before the court there was a valid
poipoa* to be affected by the judgment In fa-
vor of SQgginbottom and Provost, and their
name* were used to ^ve Et full operation.
Tlwre ia no just Imputation that there was a
■eeret trust for the defendant; nor was th^re
any necesaity for a declaration in writing, If one
•■a not given at the time the judgment was
' ed, which may be Inferred from the evi-
If there had been an understanding
tkat the property should remain with the
plaintiffs for a particular time, a written dec-
nratioii to thia effect might have been neees-
■aiT. But this was not so, and all the objects
of ue parties were accomplished by lodging the
nueation with tha sheriff, "to bind."
Ia South Carolina there has been Mtabllshed
ky tbe judicial decisions of the courts, an equity
wUeh fnllf operates in this case. Where a
party aa a member of a family ia called on to
•Motmt, a Hen Is held to exist on all the prop
artj of a testator in his hands for the amount
dna to those interested in his trust.
It baa been established by the evidence that
Sgginbotlom and Provost vers trustees for
the minors; that the minors are cieditor* for a
bona flde and valuable consideration; and if so,
they ore the oldest bona flde lien creditors, and
as such this court will protect them.
This is an Bin)eal from the deeree ot the Cir-
cuit Court for the District of South Oarollna.
In their bill the complainants ask the court
to set aside or 'postpone a judgment for [*KT
$30,000, confessed by GiUett in favor of Hig-
ginbottom and FrovMt, on the raxiund of fraud;
and that certain moneys made ny execution on
a judgment subsequently obtained by the com-
filainants be directed to be paid over in satla-
BcttoTi of such judgment.
The judgment for $30,000 was confessed in
1B19, on which executions were regularly is-
sued from time to time and entered in the
clerk's office; so aa, under the laws of South
Carolina, to bind the property ot the defend-
The appellant Insists that this jndinnent,
which was held to be valid by the Qrcnit
Court, should be set aside; because the promis-
sory note on which the judgment was confessed
was given without consideration; and that the
judgment must consequently be declared void,
□r postponed to the demands of bona flde cred-
From the facts of the case it appears that
William S. Gillett was the scting executor of
the estate of his father, and that under the will
he sold the property and becama the purchaser
of It, to a mucQ larger amount than the sum
pther property than that which he purchssed
at this sale; and the judgment was confessed
to secure the payment of the purchase money
to the brothers and sisters of the defendant,
who were the dei-isees in the will.
This sale having been made by a trustee to
himself, must have been set aside and annulled
the application of the cestui que trust, but
such application being made, it cnnnot be
Created as a nullity, as it regards strangers to
the transaction.
The appellants insist that the plaintiffs in the
judgment hsd no knowledge of it at the time
as entered; that the amount to which the
lees were entitled had not been ascertained;
that false representations were made by Qillett
lubsr'i^T'rnt to this judgment as to the extent of
his property, through which the complainants
were induced to give time on the judgment en-
tered in their behalf; and that these facta are
evidence of fraud.
The evidence does not show that at the time
the Judgment whs confessed. Higginbottom
and Provost hsd any knowledge of it; but this
is not deemed material, as they sulmequently
recognized the trust and acted under it. Nor
is it essential to *the validity of the [*SS
judament thnt the di'lrihiitive shares of the
devisees should have liccn asctrtuined. provided
they exfcPd in amount the sum for which
jiidpment was entered. And this appeam U
he the fact, from a final adjustment of the ex
The false rppresentntiona by Oillett. respect-
irig the extent of his nropcrty, if true, as
SUTOEUE COUKT or THK UNITHt STATES.
durged bj the complBinaDtB, could not kfTect
the previous judgment, if entered in good faith.
But, connected with other facts, they a^y go
to «hon, in its true light, the conduct of the
defendant. If he represented hia property ua
wholly unincumbered, after the judgment for
(30,000 had been confessed, it would show a.
design on his part to practice a fraud on
complain an is, and might cast a suspicion
th« first judgment. But these representations
are aot proved, as alleged in the bill. They
were not, as made by the defendant, so incom-
patible with the facts of the case, as not to be
accounted for by a somewhat partial estimate
of the value of his property, free from motives
of fraud. The defendant subsequently became
a bankrupt, but this was produced by various
oecurrencea stated in his answer, which were
not and could not be foreseen.
Shortly after the purchase, it appears tbe de-
fendant was solicitoua to secure the devisees,
and he consulted counsel aa to the best mode
of effectuating this object. A mortgage ws
first suggested, but afterwards a judgment
deemed preferable. This mode, it aeemt
frequently adopted in South Carolina, to se
the payment of money. A judgment being
entered, it is only necessary to issue an e>
tion from term to term, which may remai
the clerk's office, to create and continue a
on the personal propprty of the defendant.
Aa a matter of form, a note was executed by
the defendant for $30,000, and this was made
the foundation of the judgment. Was this
note given without consideration 1 The de-
fendant had purchased the property of the in-
fant devisees, to a greater amount than that for
which the note was executed. And was not
the executor bound by every consideration
arising from the a(;ency he exercised, and th^
relation in which be stood to the devisees, to
secure for their benefit the purchase money t
They were infnnts, and consequently incapa-
Sft*} ble of protecting 'their own interest.
The defendiint was enriched by the purchase
of tlipir property to a greater amount than the
$30,000. And if by the cotidilions of the sale,
time was to be given for tbe pnymrnt of the
money, that circumstance docs not make either
th« note or the Judffment frnudulcut. The
judgment was inlended to operate as a security
for the payment of the money, and tbe defend-
ant was bound in good faith to give this se-
curity. Had he failed in this respect, he would
have been guilty of a most aggravated fraud
■gainet his infant brothers and sisters, whose
property had been placed at his disposal.
But the appellants contend, if a jud^rment
may be taken to cover a future debt, the intent
should appear on the face of the proceeding,
or, at all events, be evidence by a contempo-
rary written declaration. That in this case the
judgment is assumed as a security for a debt to
third persons not named in the proceedings,
and whose interest in the judgment can only
be proved by pnrol evidence.
No written dcclarntion of tbe trust, made at
the time judgment was entered, is in evidence;
but the counsel who procured the judi;inent
Bwenrs that at the aame time, he thinks he
wrote or sketched off. ■ draft of a di^laration
'' the trust, upon which the judgment was giv-
to be aigned by Uieginbottom and Provoal;
and hia impression ha^ always been that and)
a paper was executed; tb.it in tii'-< i ; the Judg-
ment he acted for the rliildie:i of iliKtor GlHetti
and that William S. Gillett, tlie defendant, ex-
pressed apprehensions that the judgment, at
some future period, might be used to his injury
and contrary to his intention, and to obviate
that difficulty, it waa concluded that a declar-
ation of the trusts upon which it was given
should be aigned by Higginbottora and Provost.
From this evidence, it is extremely probable
that a declaration of trust was executed at tha
time of the judgment, or shortly afterwards;
but whether this was done or not, the trust is
clearly eatablisbed by the evidence, and the
transaction is not impeachable under the itat-
ute of frauds.
If, as contended by the appellanti, the Judg-
ment was confessed by the appellee with a view
of covering his property from his creditor!, it
would have been fraudulent. And tf be had
expressed to no one the object of the trust, the
confession *of a judgment for so large a [*S0
sum, to persons who had no claim against liitn,
would be evidence of fraud. But there are no
facts or circumstances connected with tha entry
of the judgment which cast a suspicion of a
fraudulent intent by the defendant.
It la Insisted that this judgment is void, aa It
gave a preference to certain creditors and in-
tended to delay othera.
There was no unjust or illegal preference in
the case, and it is not teen how creditors were
delayed by the judgment. It did not prevent
any creditor from bringing suit and obtaining
judgment and execution. This was done by the
appellants, and a large sum of money was made
on their execution, by a sale of the defendant's
property. This proceeding was in no respect
embarrassed by tbe previous judgment for the
hcnelit of the infant devisees of Doctor Gillett.
But that judgment having been kept in fon'«
by tbe issuing of executions from term to term,
the money made under the junior judgment
muat be applied in discharge of the prior Ue.i.
There is no injustice or hardship in this. After
the first judgment shall lie paid, any money
collected from the defeniiant, by execution,
would of course be paid on the judgment of the
appellants.
But the counsel of the appellants contend
that tbe continued possession by the defendant
of tbe property, on which the executions under
the first judgment operated as a lien, ia con-
clusive evidence of fraud. And a number of au-
thorities are cited to show that where an ab-
solute bill of sate of property is made, and the
possession does not accompany tbe deed but re-
sins with the vendor, the transfer is not only
1 ids ble, but is absolutely void.
The authorttiea referred to, seem to have no
rect application to the case under considiTa-
tion. The judgment does not purport to trans-
fer the property of the defendant, nor was it
intended to produce this elTect. Connected
with the executions which were issued, a lien
was created; and this was not only the fair and
'^al effect of the proceeding, but tbe one which
tbe parties to the transaction intended to ■•-
The possession of the property by tiM de-
fendant waa perfectly consistent with the Judg-
ment, and aSordt no evidenc* of fraud. It waa
ISU
OoDtaoiT T. WAI.10N ■
Hka wwrrf o'her r*M of Jndffinent and execu-
lion, wh> -li bind the real and peraonal property
• 1*] of the defendant, 'tliaugh in his poases-
■ion. By the laws of South Qirollna, thia lien
■M]> be Fontinued for finy time not exceeding;
No on« could have been misled by ttiit Judg-
■ent. It irai entered on the public record of
the district, and the exeeutioni which were ii-
•ved on it were duly noted on the clerk's
docket, and these conitituted the lien under the
uaagea of Bouth Carolioft. It was therefore an-
■eceasary to express on the record, or in any
other manner, what the effect of these proceed-
inn would be.
But it ia contended that the lien set up under
theae proeeedinga cannot be sustained, as It
rovered tbe entire property of the defendant,
and that thia must b« considered evidence of
The lien. It la true, extended to the entire
property of the defendant within the State of
South Carolina, but it could at any time be dis-
charged by the payment of the judgment. Tliis
tien, therefore, neither withdraws tlie property
o( ^e defendant from the reach of his credit-
on, nor delaj's the legal enforcement of their
The Ctreult Court, with the consent of par-
tiea, directed the sale of the entire property of
Um defendant; and as the proceeds of this sale
r owes the deriseps, tt cannot be
, .) examine some of the principles
•vttled by the Circuit Court preparatory to a
final decree. We thinlc the application made
of the money arising from the aale by the final
deerc* of the court below was right, and it is
■Armed. The lull of the complaJnanta muat
thercfora be dEamisaed with coat).
Tliia c*use came on to he heard on the tran-
script of the record from the Circuit Court of
tbe United Statea for the District of South
Carolina, and was argued by counsel; on con-
■ideratiftn whereof, it is ordered, adjudged and
decreed by thia court, that the decree of the said
Cin^uit VouTl in this cause be, and the same ia
bereb/ kffinued with eosta.
•!•] •JOEIN COULSOM, Appellant,
JAUE3 WALTON at d.
Bond sxeeuted in 1787, to pay £100 or conrey
intereat in lands — election — proof of bond—
atatnte cd Umitationa — court protecting min-
hont, or to make a*«T to the obll^rp his interim
la a certain (Dtry and irarrnnt or ItuU: and 1( lb*
deed or (''■it '<>'' (tie land aliauld :~<it)! to htm, to
feuil tbe luld diYd. Tbe olilij^r elected to ptj (lit
'^nd by flying Ihe land ■--■■- "
e)'«nce of (b
land Id
la' llfelii
It wa
of by tbe
obliei-e
nd' baa
Ob
c«. After 1
sole bcl
of tbe
obllffo
came or aae, b
ed an ■
tlon o(
ejerln:
for llie iHDd,
nd tbose
bo elalDi
ed title
under
ob'lsee aied a
Injuart
no. and
be
erendanC, Ibe
be d«
reed to eunvey
be land ■
ccirStoi"
to tbe
■tlpul
tlo
■ In (be bond
This bill »u Hied
The coor
Idering th
IcT'lM?
tbe St
bond on w
verw
l> 1
suaded, tbe Srsl import
e mlQd U tbe
c>( tbe
tion.
Ne
r\f hstr a eei
tury ban .
■ psed al
=•"!.'«
. _ . bare bi*n cncuted. Tbe
obllEOr aad the oblUee and boih tbe wltneasea are
dead. The eonlrsit Tn'toBgs lo tbe past a^e. it waa
executed, if at all, wben tlie counfrj was new and
unaettled, and the pai'llea to It aeem to liare been
llUIeraCe raon. and unacquainlvd with bualaess
not to abow tbal Ihla bond should be received wltb-
onc proot. but to show tbaE a* strict prool abould
not Ge required of lia execution aa It it were of re-
cent date. The law raekea aome uiTo«Bn;:e foi- tbe
■ ■ le a great length of
time hnt eiapicd al
■s having an Important 'bearing upon 1
The case of rfarr T. Orati. 4 Wbei
Condenaed Iteporta, «£e. cited.
Conatruc^tloD Dl tbe Itatulel ol limltatloi
" ot Ifil-
leutlon.
231, 4
Rtalutes of 11
rX-re'^trJ'
. to make tbe (tat
Ed by
courts ot
X&'"i".."
""a
S'rfLli
rse poaseaalon, an
'W
■aw
court of equity
wll
.'feiSrJT
•r In
tblacaaa
doea not depend
a credit-
or wbo doe- no
■ue llie heir witb
0 doubt that (be
".:Fs
when a credlto
aeeka to make tb
heir
the debt ot bla
nceator. on the gro
und that either
peraoDBl or rea
thia appears to
Coort o^Tennes
properly deacende
be tbe decision o
: tbe
Supreme
Tbe
n ettect to tbe statute bevond tbls,
Bj the atatule ot 1811>, which is wholly dllTcretit in
lis language trom tbe Act at 1815, a bar ia created,
Indlscrtmlnately, to aulta In equity as well aa al
law. Tbe statutes do aot apiily (o (hla case.
The Instruments under wbtcb a part o( tba eom-
"■ " "~ equity derived 'trom the i 'ns
ot tbe '
It la
sanctloDed by cbia raurt except where sucb Instru-
menla were executed by the heirs ot full i
tbe duty ot the court to protect tbe In
minors, and tbe decree of toe Circuit Col
respect, a> well aa In cTery other, la eon
— EvldeDce. 1. Proof of i
The case is fully stated in the opinion of the
court. It waa arf^ied by Mr. Bell for the ap-
pellant, and by Mr. Key for the appellee.
For the appellant it waa contended that,
stripped of circumstances, the case ia tlwt
l*ayne held a title bond on Coulson, for lix
hundred and forty acres of land, dat«d. in 178T.
posseiaion has gone along with It. Buller'a Mai
PrliJB. DBG: Gllh. Et. 103. 104: 1 !»Brk rlr, 832,
Sth Am. Ed. : Bac. Abr. F. G44 : Norrla'a feake,
" " " ~ . 10; Matth. Fre«. Kt. 2T1,
■. N, r. .ins. ntb Kd.
M. m. ■..!'; ^olirN' F. 266."
la addition to tbe Mte of the deed, Ihe
ta aa** accoanl ot It, wbert found, i
t i<. vd.
conveyance of property.
Supreme Coubt of the United States.
183C
In 1701, laaoc CouIboq. the obligee, died,
iMtTJog John Couleon, Ihe appellant, his beir.
This bill was filed for a Hpprilk' decree, in 18-22,
more thnn thirty years after the aiicestor'a
death. To the bill, John CouIbod, the heir,
t leaded in the bar the Act of LiniitstionB of
71 S, ch. 46, Bee. 9. declarirg "that creditors
of any person deceased, shall make their claim
within seven years after Ihe death of such
debtor, otberwiee such creditor shall be forever
It ii insisted by the appellees that the word
creditor does not embrace Payne seeking the
lADds, but would were he seeking damages.
Had Payne attempted to enforce'the bond at
law against Coulaon'a aduiinlstratrix, and to
recover damages, the Act of 1716 would have
iMrred him. 3 Yerg. 9.
So, if the administratrix had been sued, had
E leaded "fully administered," the damages
ad been found against her, but the plea for
her; then a scira facias had been run to subject
the lands in the bands of the heir, he could
have pleaded tbe act. Mart, A Yerg. 360.
This is the only mode by which the heir can
be reached in the State of Tennessee. The
personal estate must be shown to have been ei-
uausted, by tbe flnding of the plea of "fully
administered;" and it can be shown in no other
form. Mart. & Yerg. 360; 1 Yerg. *0, 287.
In IBOl, ch. «, the courts of equity of Ten-
fl4*] neesee were 'autboriEed to devest
titles to lands by decrees, and enforce specillc
performance in this manner. Ever since, the
common mode of enforcing contracts for lands
baa been by specific decree against the obligor
or hit heir.
In the same year, ISOl, ch. 23, the statute
of frauds was enacted, requiring agreements for
lands to be in writing, and to be signed by the
party to be charged therewith. The form of
eontract has almost uniformly been a title bond.
Whether the obligee to such bond was a cred-
itor, and his claim subject to be barred by the '
Act of 1716, soon became a most important
question; one of tbe most impnilnnl, iuvoliing
the protection of heirs by the lap^ of time, pra-
se n ted to the courts of chancery.
In 1809 the Supreme Court of Tennessee waa
established, consisting then of two judges, and
having conferred upon it original chancerf
jurisdiction. In 1813 the court consisted of
Hugh L. White and John Overton, men emi-
nent In the distinguished class of ejectment
lawyers of that day, who had the public con-
fidence in a high degree, and especially in mat-
ters affecting titles to lands. What they settled
by a concurrence of opinion has not been
questioned In the State courts of Tennessee up
to this time. This is asserted with a knowl-
edge of its truth that challenges contradiction.
Before this court was brought the cause of
Smith V. Hickman's Heirs, in 1813; a bill for
a specific decree on a title bond. The title
bond had been executed by Edwin Hickman
in 1789. The report (Cooke, 330) shows it to
have been a naked case. The Act of 1716, ch.
48, sec. e, was pleaded in bar, that the suit hud
not been brought within seven years after tlie
ancestor's death. And on the most mature
consideration, the court decided (Judge Over-
ton delivering the written opinion) "that it baa
been insisted that the complainant is not a
creditor, on account of the demand not being
of a pecuniary nature; but, as it is the duty of
this court to examine thie point, they feel satis-
Ged that, as to that, hs ia within the act. All
persons are considered creditors that have de-
mands originating from contracts or SK'^e-
ments." The next year (1814) Lewis v. Hick-
man's Heirs came before the same judges (8
Tenn. Rep. 317), when Judge White delivered
the opinion of the court to the same effect.
'These decisions have been followed in [*SS
the State courts, with entire confidence of their
correctness ever since. Cases in confirmation
cannot be adduced, as no lawyer would present
such a case; but to show the sense of the
'. Luqucre, C Cow. 221 ; Joekson d. Wilkin*
A deed appearing to be of tbe ase of tblitr rears,
where va possenlon baa aeeompsnled It, mar be
t execution.
283, 28S,28T:
nnder .__ .. ._ _ ___
. . _ .11 afford the prnumptloD that
genuine. lacksoD v. Larowav 3 Johns. Caa.
""9, 287 : Bewlett v. Cock, ^ Wend. 371 : Jack-
SOD v. Lnquere, B Cow. 221, 225, 226, 227. 228;
Jackson v. Lamb. T Cow. 431; Jickson r, Christ-
man, 4 Wend. 277; Robinson t. Craig. 1 Hill (So.
Car.). 389. 361. 3B2 ; Henthoro v. iKe. 1 Blsckt.
106, 162 : Barr T. Qratm. 4 Wheat. 21S ; Winn T.
PmtcrBon, post. aT4, «T0 ; Clarke v. Conrtney. B
Where an ancient instrument glands uncorrot»-
orsted hj pouesBlan. and Is not otherwise suffl-
clentlr "acconntPd for," as 11 1b cBlled. some proof
or eiecullon Is to be adduced. UcOlnnls T. Alli-
son. 10 Serg. Ji B. 109.
Bat the law Is indulgent in such cases, and <li>ea
not require that complete measure or proof which
It demuids In retpcct to more recent tmasactlODs.
Bennett v. Runron, 4 Dana, 422, 424; Walton T.
Coulson, 1 McLean, 121 ; Stokes v. Dawes, 4 Uaaon,
If tbe snt»er1blnc wttnetsea are llTlng, and not ab-
sent or Incompetent, tbey sbould be nt)ei1. S Jobna.
2»2. 297. 298; B Pet, 819, 844: 4 Pick. 160, 162.
Bnt tt Is not unusual for the court to presume
their death or absence, after the lapse of tblrtr
Tears or upwards, and save the Deceasltr Of searclL
Inqolry, etc. Hlnde T. Vsttler, 1 McLean, 110: r^
Tf reed on othpf groands. 7 Pet. 2E2 : 10 Serg. t B.
199 : fl Pet. 674. 67S : 11 Jobni. 34 ; i Notl. I MeCl
400, 408 : 1 Falrf. 217 ; 8 Slew. & P. 220 ; 2 Yeatea.
122 ; 2 Eip. Ses ; 4 Ad. & El. 1 : 8 Cair, k P. 402:
1 Dall. 14 : • Ban. * C. SB, il Wend. Ml.
1»U
0D0IJI» v. WAUQIf IT u.
■ Court on tbe •ubject lo Ute m 1832,
ft 7««- kfter tha e«.iue befora tha court wu de-
rided Itelow, ve quote ft pMtage from the opin-
km of tha CSiiaf Jnatioa in Hooper t. BTnuit,
B Yerg. ».
In 1814 tlie csoaa of Le^b t. Hlekmui, 2
Tean. Sep. SIT, inroiTcd the queatloo vhether
■n heir or An Adminlitrator could defend him-
•elf by the pie* of wTen yean, under the Act
ot I71S, ch. 48, we. 9. To ft bill to enforce ft
titla bond, Edwin ffiekmftn'i heira and hi> ad-
miidBtrfttw relied upon the Act of ITIS, ch. 48,
•ee. 9, •• a bar. ne court went Into an ez-
aninatJon whether the Act of ITlfi wai in force,
it being inaietad that the Act of 1789, ch. 23,
had repeated it. The court decided that both
the acta were in force, and barred the com-
plainant. Thia wa* the only point made In the
eauae bj the record, and has been followed
And in delivering the opinion of the court in
Peck T. Wheaton's Heiri, Mart. A YerB. Bep.
3S), it ia holden:
ion that the Act of 1715, ch. 48,
Tcara, will operate as a bar; and that that act
{• in force we consider one of the beat eiEabtiahed
podtions liti^ted in our courtei" and Peck'i
claim waa pronounced barred, in aooordaioe
to the dedaioni of IBIS and 1814.
Bat the federal Circuit Oourt dlaregarded
theae decisiona, tor the reason in Smith's cbum
that no particular tract of land was deeirnated
hj the bond sued on, and no lien creatM, and
therefore the demand waa in effect for damages.
There is no such idea contained In the report
of the caae. The contract was made at a time
(ITS7) when no statute of frauds existed,
of land intended to be conrejed.
"4 Tennessee, the legal profession, nnd the
cmmtrj, hare not now, or have they ever had
an idea, that the bond formed no lien and was
not obligatory on Hickman's Heirs. The dia-
tinguiahed counHcI who argued the cauM and
the court *o admitted; a new generation haa
erown up under the impreesion, governed by
'the report of the case; and as was hold- [*••
en by the Supreme Court of Tennessee la
Hooper v. Bryant, 3 Yerg. B, it is now toe
late to correct the error, it even error there be.
It ia the pride and pleasure of the courts of
Tennessee to follow and abide by the deefsione
of the Supreme Oourt of the United State*
when construing the lawe of the Union; as
they hare done us tlie honor of conforming U>
our deciaiona on our tooftt statutes, especially
the seven year^' act protecting powessionsi
and we earnestly inaigt, decisions of twenty
years' standing, whether made in mistake of
the fact or the taw, cannot now be overthrown
without great and manifest danger to our titlea;
without letting in u^n our country evils Uttla
foreseen at this distance from it, and by
strangers to it. If parol agreements for land*
for warrants, and for locating, made pervious
to 1801, are let in against the heir, and th«
agreements are enforced in the federal courts,
the litigation to enforce them may be appalling,
especially in the western part of our State.
The only objection made to the decision of
Levris v. Hickman in the court below, was that
it did not appear whether the bill was Sled to
recover the land, or for damages.
In the State of Tennessee the heir eannot be
sued tor damages in any kind of proceeding
There ia no direct mode In which ne can be
sued but for a speciflo decree to devest title.
Farther, no suit tor damages is ever prosecuted
with us in equity. There is no auch jurisdiction.
It is idle to conceal it; if the decree below ia
aSirmed, the two cansea against Hickman's
Heirs will be flatly overruled.
But some stress has been laid upon a loos*
and obscure expression of Judge Haywood in
Hagsard t. Mayfleld, 6 Haywood, 121. It was
on action of ejectment. Mayfleld died. ISs
~'.fe administered. A title bond waa pro-
Pkflllps. In his e*ldene«, says, tbat the nils Srirt
above sfalfd "mjulres d acumen In to be produced
from their proiKr plare sad cusCodj : »Dc1. Id many
kavlOK been actrd npon. and or tbe eDjOTDimt of
pnftTtj being coDililent with and rplenule to it.
or olhenrlse, sTord a crlterlOD ot Its EenulnenpM.
S Phlll. Ev. 204. Bth Am. Kd. ; Frj t. Wood, Selw.
M. P. MO n. 1 rorbea v. Wale, 1 ^1. SfiZ ; Doe d.
Bowdler v. Owen. 8 Car. * P. 751 ; Doe v. Dcnyon,
4 Pcrr * D. lS3j Oovcrnor at Cbrlspa Waterworks.
T. Cowper, 1 Esp. 2TB: Ely v. gtewnrt, 2 Atk.
344; HanbV v. Cnrtla. 1 PrEce, 232; Berlle *.
Beaossont, 3 Price, SDS ; Wynne v. Tyrwhltt. 4
Bam * AM. STS.
^ka rule which admits ancient InstmmeDta In
•rldenee Inelvdes sncb only ■■ an valid on their
IBee. HrMan v. Boyle. 16 llow. 130.
Where there has been a ireat lapse ot time, strict
ftaaf of a destroynl deed, nniler which parties
■are eialoied. Is dispensed wllh. Lewis v. Balrd. S
HcLMn. St.
Strict proof at the eiTCation of a deed, wbleh Is
pfodoccd. ts not reqnlrcd where tbere has been a
Qtat lapse ot time. Btoddsrd v. CliamberB, 2 How.
2. Alteration ot Instrnmeots.
U the Inatmment sppeaia to have been altered.
tbe party claiming under, or atterlng It^ is boand
to eiplala this appearance. Henman T. Dlckln-
soo, (TBInc. ISS. 1B4: Knlgbt *. Clements. S Ad.
* CL 21S : Neweomb v. Presbrer. 8 Uet. 4l>a.
a lb* slteiatlon la noted In tbe atleitatlon
ejansa. It Is sodlcleBt. It It appears In tbe same
tak and handwriting witb tbe body of tbe Instm-
■sM, It may sDlDcfc It the alteration Is agalnat
t Ii. ed.
the interest of the pirty claiming under tbe Instm-
ment It Is preaumed properly made. Bslley V.
Taylor, 11 Conn. B3;
Generally apeaklDK, 'f nolbing appeals to tbe
contrary, the sItcretloD -rill be presumed to be
contcuporHneoua wllh the eiecutioa of tbe Instru-
ment. Trowel Y. Castle. 1 Keb. 22; Flligerald V.
Fanconberg, Tin G. 20T, 213; Bailey v. Taylor, 1
Conn. G3]. S34 ; Gooi-b T. Bryant. 1 Shtpi. aks,
300: I'uUen t. Hulrhlnaon, 12 Bbppl. 249, 2B4.
If any ground uf suspicion Is apparent on tbe
fare nf the Instrument, the law presumes notblDg,
but leaves the qucsllun ot tbe time wtaen It was
done, and l>y ivhom. and tbe Intent wllh vblcta tbe
alteration was made, aa natters of tact, to be
found by the Jury, upon proof! by tbe party ollar-
Ing tbe Inntrnment in evidence. Knigbt v. Cle-
ments, 8 Ad. A El. 21B: Carrtsi v. Tattentball, 3
Man. A O. 800; CIIITord t. Parker. 2 Man. * O.
900 ; Vanbome v. Dnrrenci', 2 Dall. 304 ; Gooch
hepl. 3S0 : Wlckea v. Caulk, S H. ft
-. .-y DIst. v. HarrlHon. I Nntt A MeC.
BB4: WhUneld v. Comngwood. 1 Car. A Kir. 83B;
3. 41 ; Horry
Olllett ». awest. 1 r.llm, 47,'>': Cumi)er(i>n'd iTanli
'" Raffelflnger ». Bbuts. 16
Chambre, 1 Mood A Malk.
""" " II. Oaborn, 2
ough. 2
in. ITl :
Bailey v. Taylor. 11 Conn. S3I : Taylor v. Moselv,
- Car. A P. S73 ; Koas v, Gould. B Greenl. 204.
Tbese qunttlons arc determined, la tbe Drst In-
v_ .> . _..__ .,.„ jj^ raised upon
idmlBsIl-"— — "--
Ben.AB.44: .,
116: 1 Oreenl. Ev. Sec. 684: Jac
Wend. BBS: Johnson v. Duke of Mar
-■ ■ 278: Emerson v. Murray, 4 N. Ham|
; Oonid. S Qreeoi. iOi.
EUPBKIUE COUBT OT TKl Vxtm StATIS.
dnced, and ihe, under th« Btatute of TeDnes-
■M, made a deed; but not for the land de-
■cribed In the bond. The heir *ucd for the
land, and the deed wu declared void. The
Act of Limitattons of 1715, cb. 48, could not
have, and did not have the remotest bearing
on the cause. It ia not possibU to introduce it
In the action of ejectment. But those ac'
quainted with the legal ideas of that dii-
aujniiahed common lawyer. Judge Ha j wood,
well knew what he meant. He was proseout-
tl*] ing a favorite theory that 'equitable titles
were not burred by the acts of limitation. That
n«dther an entry or title bond waa operated
b]' any statute, because courts of equity wi
not bound, and the remedy was open. And if
the honorable court ia curious to understand
the paragraph referred to, and to tee the
fJauaibility that genius can confer upon error,
he; will read Judge Haywood's dissenting
opinion ia Gaither and Frost's case, 3 Yerg.
208; but fearing our client's cause will be en-
dangered from its masterly ability, we must
insist, the court read the concarrent opinion
flrecedini;, of the three other judf^s, overrul-
ng Judge Haywood'a; and which declares
equitable titles equally with legal, subject
be barred.
The heir must be at repose some time, so that
he ma^ say of his llreside — "this is mine.'
We, of Tennessee, alTord the same protection
by the Act of Limitationa of 1619 to all others;
Ve declare that no suit in equity shall b(
brought, had or prosecuted but within sever
years next after the cause of action come, ac
erued, or fallen; and all claims not sued within
•aid seven years shall be forever barred. The
courts have enforced the act to the letter.
Dunlep V. Gibbs and M'Nairy, t Yerg.
The same act bars the ejectment in a
years, so that all stand on the same foot with
the heir. The state of our titles originating In
land warrants, required the protection; and
the hundred thousand people drawn to our
western district within the last ten yeara, and
their almost entire exemption from litigation,
bespeah the wisdom of our seven years' policy,
which we hope this honorable court will not
disturb.
We apprehend It moat difficult for the court
to give speciflc relief on a title bond of thirty-
four years' standing, when sued upon; with
the supposed obligor^s name erased from it;
after the death of the obligor, obligee and the
witnesses; with the proof that no claim was set
Up under it by the obligee in his lifetime, he
averring no writing existed between him and
Isaac Coiilson. But this rests on facts, which
wa feel it our duty to leave with the court.
Mr. Key, in reply.
The facta show a possession of the land in
controversy on the part of the appellee and
C8*] those under whom he claims, since '1788.
[t was held under an agreement dated in 1787,
to convey the title, if £100 waa not paid with-
in the year. The money was not paid, and
the obligee held the land till the death of the
obligor la ITDl, and after his death till eject-
aent waa brought by his heir-at-law tn 1814.
On the recovery in ejectment the bill waa filed
to enjoin the iseuing of a wdt of posseBsion
and for relief; and the question ia (and it acems
to be now the only one inaiated on in behalf of
B4
Yerg. 1,
word in
the appellant), li the statute of limitations ater
to the relief sought by the bill!
It ia contended by the appellant, in tlia ar-
rnent now submitted to the court, that thf*
settled by the Tennessee courts.
Smith T. Hickman, Cooke, 330, Is tba flnt
case relied on. All that thla caae provea (the
bond being for no speciflo land] is, that a party
having a bond for so much land may be eon-
si dered a creditor under certain circumstanesa,
within the meaning of the statute of limita-
tiona. The observations of the court below on
this case require nothing further to be said aa
to the effect of this decision.
The case of Hooper v. Bryant, S Tari
has been mentioned. Thare is not a '
the opinion of the court touching theqi
but the argument of the counsel in favor ojF
the application of the statute to that caao
(pages E, S), very clearly shows that no luch
doctrine as the appellant contends for is con-
sidered as settled in the courts of Tennessee.
Thus he says: "It is admitted that the Act of
Limitations cannot be pleaded to an eipreaa
and subsisting trust, a* between trustees and
cestui que trust. This rule only operates so
longaa the trust subsists between the parties."
"When a trustee, who haa trust property Id
his possession, dies, the trust is no longer a, sub-
sisting one; but if the trust property bt.
speeiflc or capable of being identified, etc.,
then it would not be assets in the hands of the
executors, and the cestui que trust may follow
it in the hands of the executor, and the Act
of Limitations could not be pleaded where the
trust property in specie is sought to be recov-
ered. But if it is not specific, and therefore
cannot be identiSed and followed, etc., it ia
then assets, etc. The cestui que trust in such
eases becomes a general creditor," etc. (page 7).
"Where it is not capable of 'being iden- ["•9
tifled, aa the cestui que trust ia then only a cred-
itor, his claim, like that of all other creditors,
will be barred, unless prosecuted within the
time limited by law."
This argument ia in accordance with Smith
V. Hickman, and shows the distinction between
that case and this. Here the claim ia for
speeiflc trust property, and therefore cestui
que trust ia not a creditor and the statute do«a
3t apply.
The next case relied on la Lewie t. Sckman,
2 Tenn. Rep. 317. The court below in their
opinion have explained this case. There the
land could not be had; it was held adversely;
the bond had been given up for a defective
deed, and the object of the bill was to set up
the bond and relieve the plaintiff. It waa
therefore a claim for money; it was all the
holder of the bond could get. It does not ap-
pear In the ease that the obligor ever got a
patent, or had the legal title to the land. It was
not, therefore, aa here, the case of a party in
possession, claiming the protection <a equity
against the legal title of the obligor.
Peck V. Wheaton's Hei™, Hart, ft Yerg.
360, ia cited. There the claim was plainly for
a debt, and no doubt the statute was a bar.
3 Yerg. 206, Is also mentioned, but seems to
have no application to the question.
The caae of Hagsaid v. Uayfleld, i Hay.
121, Is not eorroetly understood by appel-
lant. Ttw heir waa the defendant, not the
US3
OouLaoH V. Waltm m al.
fhhillir tn tiM ejectment t and the Judn
Mtm a^inst the legal title of the plaintin, but
aduItB his cliim in equitf, *• not barred by
the aUtuta.
To ahow eonclualvelj that no aooh doctrine
•a ia contended for bj appellant ia recog-
sized in the Tenoeasee courts, the court is re-
ferred to the case of Cocke and Jack v. Magiu'
Bia, Mart. A ¥etg. Rep. 361. It la there said
<paga 3S3) by the court that "the true rule ia
tnat courts of equity will appljy the statute of
linitationa to all cases, unlcM it be such as at*
predicated upon a naked trust, In which eourta
of eqiiitf alone have jurisdiction, and of which
courts of law haT* no eogntzance." Is not
this preciselj such a case a« the court here
eepta from the operation of the statute T
Payne is in possession of the land under the
agreement for the legal title, and the heir-at-
l«w haa onlj the naked legal title, and this he
90*] held in trust for *him who had the
poaseasion and the right to demand the legal
title; no court of law could have cognisance of
such a case. What remedy at law could Payne
havel 'SMiat could he claim as a creditor!
ne holding the legal title (Payne being in
poaseasion) could not be adverse so as to put
um on making a claim upon the trustee,
within the time limited by the statute; as long
as the trustee suffered him to be in possession
it was a recognition of a subaistiTig trust.
The court is also referred to Armstrong's
Heirs v. Cambel], 3 Yerg. 201. The mar-
final note at the head of the ease shows ths
pnints decided, and the opinion of the court,
in pages 231 and 237, shows that such a trust
as this is not barred by the statute.
In truth, the statute of limitations is attempt-
ed to be used in this case not to protect, but to
disturb a long continued possesaion; the heir-
at-law wields it, not to protect "bis Sreside,"
but to invade another's. With a naked legal
title, he seeks to dispossess the party who has
been allowed to hold possession under an
agi««ment for a title that allowed possession,
•onfessing the right of the possessor; and when
•quity is invoked to prevent this injustice, he
objects that the cestui que trust is barred by the
trustee's ocquiescinK in his possession, and de-
laying to question bis right. It is not easy to
conceive how the rejection of such a plea will
dvemile any doctrine of the courts of Tennes-
see, or disturb the repose of the possessors of
Mr. Justice HTean delivered the opinion of
the court:
This case is brought before this court by an
Spcal from the decree of the Circuit Court for
e Western District of Tennessee.
In their bill the complainants stat« that on
tke 22d of February, 1T85, a certain entry in
the land -office of North Carolina was mads by
Isaac Coutson, assignee of David Welles, for
•ix liundrcd and forty acres of land; and that
■ftcrwards, on the 2d of January, 1787, he ex-
•ented a bond to one Josiab Payne, for the
coBveyanee of said tract of land, agreeably to
tba terms therein expressed, to wit: "Know
kll iD«n by these presents, that I, Isaac Coul-
son, of the State of North Carolina and
Conaty <rf Davidson, do oblige myself, my
hein and assigns, to pay to Joalah Pa^a ona
hundred pounds in Virginia currency, in pay-
ment for a certain bay stud horse I bought of
him, within 'twelve montha from the [*71
data hereof, with lawful interest, otherwise, la
lieu thereof, I do oblige myself to make over
all my right and Interest of a certain entry and
warrant of land of six hundred and forty acres,
lying on the north side of Cumberland Biver,
on said river, about one or two miles above the
mouth of the Caney Fork, unto the said Josiab
Payne, of the county and State aforesaid, or
his heirs and assigns. And if a deed or grant
should issue to me before said entry or war-
rant should be transferred from me to aoid
Pa^ne, then, and in that case, I do herebT
oblige myself to make a transfer deed of all
my right, title and interest of the aforesaid
land, unto the aforesaid Joaiah Payne or his as-
signs; which deed and right, when made, is to
be taken in full payment for the one hundred
pounds and interest; and I do hereby obliga
myself to warrant and defend said deed from
me, my heirs and aasigns, forever, unto the
said I^yne and his heirs." Which bond pur-
ports to have been signed and sealed by the
said Isaac Coulson, and witnessed by James
Donelson and William Bush.
The complainants further state that tlw
obligor elected to pay the said snm of one hun-
dred pounds, by giving the land as expressed
in the above-recitol bond; which mode of pay-
s assented to by the said Payne. That
said Isaac Coulson died intestate sometime in
the year 1791, leaving the defendant Us only
heir-at-law. That a grant was issued for tba
land on the 16th of September, 1T87, but ao
valid conveyance was made to the said Payne
for the land, although in his lifetime various
were tried to obtain a title- That pos-
was Uken of the land in 1790 or 1800,
and that it has been occupied ever since under
the title of Payne, and that the taxes have be«n
paid. That since the defendant has arrived at
full age he commenced an action of ejectment
and recovered a judgment for the land; and
the complainants pray an injunction, and that
the defendant may be decreed to convey all his
' terest in the premises to the complainants.
In hia answer the defendant denies that the
bond set forth In the complainants' bill waa
ever executed by his father, Isaac Coulson, and
states that it is a forgery; and he deniea the
other material allegations tn the bill.
In considering the question aa to the gennlne-
>ss of the bond on which this controversy fa
founded, the first important fact 'that ['72
occurs to the mind is the remoteness of the
transaction. Nearly half a century has elapsed
since this instrument purports to have been ex-
ecuted. The obligor and the obligee, and both
the witnesses are dead. The contract b< '
to the past age. It was executed. If i
when the country was new and unsettled;
the parties to it seem to have been illiterate me%
and unacquainted with busineas transactions.
These circumatsnces are referred to not to
show that this bond should be received without
proof, but to show that as strict proof should
' be required of its execution as If it wera of
nt date. The law makes some allowanos
for the frailties of memory, and where a gnat
len^ of time has elapsed since the dgning of
belouoa
r at aa
led; and
BuFwaa Coobi at the Umm> SiAna.
1831
U inatrumeBt Attempted to be prored, dremn-
ttaneet are viewed fts having an important
bearine upon the question.
In the case of Barr t. Grata, 4 Wheat. Z31,
thla court decided "that where a deed ia more
than thirty f ears old, and la proved to have
been In the posEesBJon of the leaaora of the
plaintiff in ejectment, and actuallv aiaerted bj
them aa the ground of their title in a chancer;
auit, tt ia, in the language of the booki, luffi-
eiantly accounted for; and it ia admiuible in
evidence without regular proof of iti execution
b7 the subscribing witneasea."
Thers ia no proof of the handwriting of
Jamei Donelaon, one of the subscribing wit-
nauei to this bond; but it is proved that he
was supposed to have beui killed by the Indiana
man; years ago.
The handwriting of Buah, the other sub-
scribing witneas, ia proved by three of his sona,
who are well acquainted with his hand, one
of them having administered on his estate.
These witneaaes, and especially two of them,
apeak with great confidence, not only as to the
ugnature of their father, but they say that the
body of the bond appears to have been written
before and afterwards, until hi a death, their
father lived in Clark County, Kentucky, yet
he waa abaent the greater part of his time
on hunting expeditions; and they understood
that he waa several timea in the western part of
Tennessee. It appeared that their father un-
7S*] derstood surveying, *was a pretty good
scribe, and was frequently called (n to write
deeds and other instruments.
Three witnesses testify to the original con-
tract, and the circumatancea which led to It,
Payne sold to Coulson a valuable horse, for
which he agreed to pay one hundred pounds.
Sometime afterwards, Coulson, finding the
horse did not suit hia purpose, induced Payne,
as his agent, to sell him; which waa done, for
the traet of land now in controversy. It waa
after this Bale, as these witnesses say, that they
understood a bond was executed, by which
Coulson waa bound to pay to Payne one b
dred pounds, or convey the land to bin in 1
of the money. Two witnesses state that,
addition to the land, Coulson agreed to pay
Payne 950, in a horse.
George Cummin g, and the aister of Josiah
Payne were acquainted with William Bush,
and the latter was also acquainted with the
other witness, James Donelson.
Sometime after the date of the bond. Coul-
son, It ia proved, went to Virginia under the
expectation of obtaining money to pay off the
bond from the estate of his father; but be
fonnd that the estate had been waated; and be-
ing disappointed in raising the money, he re-
mained in Virginia, married, and afterwards
died in 1791. In the year 1703 Payne went to
Virginia, and obtained from the widow of
Coulson a bond, in a penalty, dated the 6th of
November, 1793, with a condition to convey
all her interest in the land in dispute, and she
authorised Payne to take possession of it. This
bond was executed by the widow, on the ad-
vice of Jacob Coulson, her brother-in-law, that
It waa best to discharge the olaim by the con-
T«yauca of the land.
An attempt was made to obtain a eanTeT-
anee under the sanction of a county court ■■
Virginia, and Mrs, Coulson attended the court
for that purpose; but the decision waa that it
bad no power to act on the subject.
At another time Payne made application to
the widow, and said he ought to have some-
thing, aa he should have to wait until tba
children became of age; and she let him have
a horse worth fifteen pounds.
In 17S7 or 1796, it appears a man by the
name of Johns was sent to Virginia for Uiis
title, and was informed by Payne that he would
probably find It ready for him. At this time
Mrs. 'Coulson, Jacob Coulson, and Ben- [*74
jamin Johns, went to the court in Grayson
County, Virginia, and were three days in at-
tendance on it, endeavoring to procure a title
for the land, but failed.
Payne had been then sold a pert of this land
to Johns, but as no deed could be obtained, Johns
was unwilling to take the land, and he ex-
changed il with Walton, who in ITDO or 1800
took possession of a part of the tract, and has
ever since held it by nimnelf and hia heira. At
a subsequent period he made other purchases
of the tract. It was known as Payne's land,
from the time Johns went to Virginia for a
title.
Payne died in 1805, and hia heirs endeavored
to obtain a title by permitting the land to be
sold for taxes in 1S06, snd they became th(
purchasers. Shortly after this aale, George
Payne, son and administrator of Josiah Payne,
went to Grayson County, Virginia, and pro-
cured a release of all claim to the land from tlit
representatives of Coulson, and in which they
stipulated not to redeem the land under the
sale for taxes. Thia instrument has been lost,
George Payne was drowned a few years after
the writing waa obtained by him.
These are the material facts and circumatan-
I the
bill.
A great number of depositions were read by
the defendant's counsel, to rebut the facts
proved by the complainants, and a how that
they are not entitled to relief.
Six witnesses state that they were acquainted
with William Bush, and several of them with
James Donelson. That they both came from
the ^dian Nation, and were supposed to be
tones and refugees. That Bush waa a dissi-
pated man, was occasionally deranged, and in-
capable of buaineaa. That he had a brother
named Abner, who was a man of good capsc-
.ty, and of respectable character; that they
were both hunters, and were well acquainted
with the water-couraes falling into the Missis-
iQii River south of the Tenneasee.
Donelson and William Bush were reported
> have been killed by the Indians in yaani 17B0
or 17B7.
The depositions of three witnesses were read
by the defendant, who were well acquainted
with William Buah in Clark County, Ken-
tucky, and who from their intimacy with Um
and the short distance they lived from him,
about the time the bond 'bears date, [*TB
seem to think he eonid not have been abaent
from home at that time.
OonLaoH T. Wufo* mt u.
pnu, & eonTersBtioa took pimce between him,
the vitneM, And Jai^ib Coulson, nt which time
Fftjiie BKid he had no obligation or anj instru-
nwat of writing from Isaac Coulion, reapectina
tb* land in dispute. And that Pajne also sftid
be wma to receive from Coulaon a negro bo7,
nadar twelve years old, In dlacharge of the
debt; and at tha same time he agreed to pay
the taxea on said land, and take care of it for
the children of aaid Coulron; and the witneaa
was called on apedally to Temenber the agree-
ment. At thii time Payne received a horse of
Hit. Coulion worth $60, in part paymont of
the claim.
The fint inqvlrT which naturally arisM In
the mind on reading the whole evidence U,
whether it may not be reconciled. Some parts
of it, and pnpecially thoae parta which relate to
the subscribing wttneas, William Bush, would
seem to conflict; but thia is auiceptible of a
most aatisfactory explanation.
There can be no doubt from the faeta stated
hf the witnessea, that there were two persona
who bore the name William Buah, and who
wa« occaaionally in the western part of Ten-
nessee about the aame time. One of them, the
Kentucky Bush, waa a reapectabla man, a di
GOD in the Baptist Church, a surveyor, wrote a
good hand; and he died In Clark Oonnty, Ken-
tucky, about the year 1818. The other waa
believed to have come from the Indiana, wai
an ignorant dissipated man, incapable of husi-
nets. accustomei' to hunting in the country
■outh of the Tennessee River, and was report-
ed to have been killed by the Indians in IT8« ot
1787- He had a brother named Abnir, who ia
proved to have been in no way eonneeted with
the Kentucky Bush.
Tbe mere statement of these facta Is enough
to convince every one that the dilTerent wit-
neaaea, in describing tbe character, capacity for
boainess. purauitb, residence and death of Wil-
liam Btisb, could not have referred to the same
person. Even the witnesses examined by the
defendant, in proving the residence and death
of the Kentucky Bu»i, proved enough to show
that he could not have been tbe same person
who was believed to have been a refugee and
Tl*] tory; and was suspected *of attacking
boats on the Mississippi River, in connection
with other persons, and of committing other
depredationa upon society-
The fact that there were two persons of the
aame of William Bush, may be safely assumed;
and the question arisea whether the signature
of the Kentucky Bush, as a Bubacribing wit-
neai to the bond, ii aatisfactorily proved.
Some doubt is attempted to be raised as to
this fact, from the statements ot the witnessea
who lived In the immediate neighborhood of
Bosh, and who have no recollection of his hav-
ing been absent from home about the time tbe
bond bears date.
But this evidence, at best, Is of a negative
eharaeter, and depends upon the memory of
witnesses for a great number of years of a fact
not calculated to make any impression on the
Bind. Vo circumstances are related by the
witucMca which were calculatad to Impreaa up-
on their memories the abaenea of William Buab
tn January, 1787. What pradeot ptraon, la
tbe abaenee of sueb dmuoatanees, wonid OB-
dertake to state, poaitI<ra]y, that his neareat
neighbor was abaent from home any given
month, some twenty-flre or thirty years before.
But the complainants have proved by the
three sons of Biuh and his widow, that ha was
from home hunting the greater part of hia
time; and some of them say that from his con-
versations and several facts, they believe ha
oft«n visited Western Tennessee. And mora
tiian one witness, who lived in the neighbor-
hood of Joriah Payne, became acquainted with
Buah In hia expeditions to Tennessee.
From these facts it would seem that no pre-
sumption against the due execution of the bond
can arise from the statement of the witnesaea
who were the neighbors of Bush, and wha
eotdd not recollect of hit having been absent
from home about the time the bond Is dated.
Bnt how can Uie admissions of Payne, In the
preience of Jeremiah and Jacob Coulson, that
he held no instrument of writing on Isaac
Couison for the land In dispute, and that ha
had agreed to receive a negro bc7 in discharge
of the claim, be explained; and also hia agree-
ment to pay the taxea on the land, and take
care of it for the belra of Coulson T And what
'answer ean be given to his having re- ['7T
celved a horse worth VBO In part payment of
the claim T
The payment of the horse seems to have been
In pursuance of the originsJ agreement Two
of the witnesesB state that Conlson, in addition
to tbe land, waa to give Payne a horse worth
C60. And it is not improbable, if the remarks
were made by I^yne as stated by Jeremiah
Coulson, that he had no written contract from
Isaac Coulson, they must have referred to tba
fact of there being no writing respecting the
payment of thia horse.
That he agreed to pay the taxes and preserva
the land for the heirs of Coulson, is disproved
by the fact that either then or sometime befora,
I^yne procured a bond from Mrs. Coulaon for
the land. The language of this bond cannot be
mistaken, and it goes to show that Instead Of
abandoning the land and agreeing to pay the
taxes for the heirs of Coulson, he was deter-
mined to perfect his claim to it, by tbe use of
such means as he could resort to. Bv the
statement of Mrs. Coulson, it appean Payne
complained that he should have to wait for a
title until her children iMcame of age. This
fact, as welt aa the deed and the whole course
of conduct of Payne, show that he could not
have made the remarks and agreement, as atated
by Jeremiah Coulson.
From this view of the evidence, which baa a
bearing upon the fact of the contract and the
execution of the bond, the proof is as clear and
as aatisfactory aa could be reasonably expected
after the lapse of so many years.
The handwriting of Bush is proved by the
positive testimony of three witnesses, and the
consideration of the bond ia clearly proved by
three other witnesses, all of whom stAnd with-
out any impeachment of their credit. Conclu-
sive as these faeta would seem to be as to the
genuineness of the bond and the consideration
on which it was given, there are others equally
oonclnrive.
If no eontraet between Oanlsoa and PajM
had be«B vmit, what could have ladvoed tta
Sunum Covn or thb Unitrd Statbi.
Iktt«r to Tirit Tir^nis in 1703 1 and how cm tkc
conduct of Mri. CoiiUon, in executing a bond
to convey kit her right in the land, with the ad-
rka of her broth?r-in-lan, Jacob Coulaon, be
accounted fori This was about five years after
the money was to have tieen paid or the land
78*] 'conveyed. The circumetanceB were then
known to the parties, and no objection seems
to have been made either by Mr*. Coulaon,
or the connections of ber deceased husband,
to the claim set up by Payne. So far from
any objections being made, every thins wai
done both by Mrs. Coulson and her friendi
which they could do, to vest the title for thii
land in Payne. They applied to the court, and
romainad in attendance upon it for three days,
at one time, under the hope of obtaining the
neceeaary authority to execute the conveyance.
And Payne complained of the hardship of be-
ing compelled to wait for a title until the heira
of Coulaon became of age.
Thes« are facts established by tbe evidence,
ftnd do tbay not show, beyond controveray,
tliat there was a contract between Coulson and
Pa^ne respecting this Undt and this important
point being established, independent of the
bond, the genuineness of that instrument must
Im extremely probable. It* language agrees
with the contract as proved by parol; and sev-
eral of the witnesses say the contract was
reduced to writing. And in addition to this,
tbe clear proof of the faandtrrlting of Bush, the
nibscribing witnesa, would aeem to be eonctu-
•ivB. Taking into view all the facta and cir-
enmstances in favor of the due execution of this
inatrument, it has been as fully established a«
eould be expected of any writing of so ancient
a date.
But it U objected that thia bond has
been mutilated, and therefore it must be re-
jected. It is true that some alterations have
been made on the face of tbe bond. The words
North Carolina, or some other word*, have
been erased, and tbe word Virginia, in lieu
thereof, has been inserted. This alteration
would make the bond read Isaac Coulsoo, of
tbe State of "Virginia," and County of David-
BOD, instead of the State of "North Carolina,"
etc. Tbe signature of Isaac Coulaon to the
bond aeems to have been scratched out and
■gain written.
That tbeee alterations have been made since
tbe death of Payne is satiafaetoriljf proved; and
It la clear that no one having any interest under
the bond, could have had a motive to alter it,
OS seems to have been done. If, by the al-
terations, the obligation of Coulson had been
increased, either a* to the time of payment, the
•um to be paid, or the number of acres to be
conveyed, Payne or hie heirs might have had
TV*] aome motive *of interest to make them)
but iheir intereet waa directly opposed to any
Mrt which would impair the validity of the
bond, or cast suspicion upon it.
It Is proved that, after the death of Payne,
tbe bond was in the possession of those who
daimed the land odvereely to it; so that its
destruction would have advanced their inter-
Mts. It ia fair, therefore, to presume that if
the alteratJooa were mode by design, they could
not have been node by any one claiming under
the bond, bat muat hare been made by some
nm» who had an faittnat in dNtroying it.
By this bond CouIrod agreed to pay to Payne
£100 in twelve montha, or in lieu of tbe mon-
ey, to convey the land.
It is alleged in the bill that Coulson eleetad
to pav the £100 by a conveyance of the land,
and tnat i'aync agreed to receive it.
This is a clear case of election by the obligor;
and a conveyance of the land or the payment
of the money, within tbe time specified, would
have discharged the obligation. The money
has not been paid; and although there is no
positive proof that an election was made dur-
ing the life of Coulson to pay the land, yet,
from the facts and ciri^u Distances of the case,
and the condition of the obligation, there can
be no doubt that those who clsim under it have
a right to consider it now as an absolute biMid
for the conveyance of the land.
The statute of limitations is set up as a bar
to tbe relief sought by the bill ; and as this ia a
ground more relied on by the counsel tluui any
other, it requires a most careful examination.
In the ninth section of "An Act concerning
proving wills and granting letters of adminis-
tration, and to prevent frauds in the manage-
ment of intestates' estates," enacted by NortJi
Carolina in 1TI6, and which is now in force in
Tennessee, it ia provided "that creditors of any
person deceased shall make their claim within
seven ^ears after the death of such debtor,
otherwise such creditor stiall be forever barred."
Under thia atatute the question arises whether
the representatives of Payne, in asserting thrir
claim to the land in controversy, can be consid-
ered creditors! Whether, in a cose where the
relation of vendor and vendee exists, the con-
sideration having been paid, and a naked trust
only has descended to the *heir, he can [*8I>
en^ect himself under this statute, after the
ipse of seven years, against a bill for a speclfle
performance.
It is insisted by the defendant's counsel that
this Is not considered an open queetiou in Ten-
nessee, and that in pursuance of the rule of de-
cision in this court, to adopt the construction
given to its statutes by the Supreme Court of a
State, tbe question must be considered here also
as settled.
The first case. Smith v. Hickman's Heirs, re-
ferred to is in Cooke, 330. In this caae the re-
porter says "the bill states that the ancestor of
the defendants, sometime in the spring of 17S9,
executed an obligation to the complainant,
binding him to convey six hundred acres of
land, within a reasonable time; that the said
ancestor died intestate in the year 1701, leaving
the defendants his heirsat-law; and that ad-
ministration of the personal estate was commit-
ted to bis wife and two other persons. That
the obligation has not beencomplied with; and
that the defendants refuse to satisfy the same,
although there is a large estate descended to
them, both real and personal. The bill Praya
for a specific performance." To this bill uie
atatute of limitations was pleaded in bar.
In their opinion the court say, "it bos been
insisted that tbe complainant is not a creditor,
on account of the demand not being of a pe-
cuniary nature; but, as it is the duty of this
court to examine this point, they feel aatlaOBd
that as to that he ia within the act. All per-
sons are considered creditors that bare de-
mands originating from eonUacts or agree-
Patera •.
(toutaoH T. WU.TOM sr ai.
■Mat*.* And In answer to tbs uvumenta of
•onnael that the atatuU could have had no ref-
atCDcs to heirs, but to the pereont.1 reprcsenta-
tlTCfl uid the pertonal estate, the court remark,
"the odIj inquiry ia, whether it were renson-
able that the Legialature ahouid think of the
■ttuation of heiis, in respect to the debte of
tbeir sncestors;" and a^n — "if no lapae ot
tine e*a aeeure the estate thus descended, the
peace of society would be much disturbed.
RecoTcries might be made of one, of many
heir*, and iuits for contribution must take
place." And further, "it is admitted, in argu-
ment, that it ia reaaonable legateee and dia-
tributeea should know when tbey may he at
From the atatement in the bill, it does not
appear that the conveyance of any apeciflc tract
of land was prayed for, and it would aeem from
the fact of the persona] repreaentativea being
S I'Joamed *in the bill, and an STerment that a
large estate, both real and peraonal, descended
to the defendants, that the object of the auit
could not have been a title, hut to aubject the
property descended to the heir to the payment
of the claim. On no other supposition can the
language of the bill receive a lenaibje eonatruo-
tkm.
If the biU had been filed to obtain a decree
for a title to a specific tract of land, would the
administratora have been named in itt and
could it have been thought necessary to aver
that a large estate, both real and personal, ds-
■eeoded to the defendantaT
Whether the heirs inherited any estate or not
beyond the particular tract, was wholly imma-
terial. If tbey were naked truateea, they could
be held responsible as such; and the adminie-
trators were neither necessary nor proper par-
ties to the suit.
a true, the language used by the court in
not appear to have been the case before them.
And this fact seems to be clear of doubt, when
the language of the court, from other parts of
their opinion, as above quoted, ia considered in
eonnection with the ease made in the bill.
The case of Lewis v. Hickman'a Heira, 2 Tenn.
Hep, 317, ia also relied on.
In tbia case the bill stated that Hickman, for
a valuable consideration, executed a bond
to Hughes for £500, with condition for
the conveyance of a tract of two hundred and
•eventy-four aerea of land, etc, Hickman died
inteatate, and his administrator, under a statute
authoridng adminiatrators to make deeds, exe'
ented one to the plaintifTa testator in discharge
of the bond. It was charged that the deed was
Bot in compliance with the statute, and was
therefore void. That a certain Roberta took
posaession of the lend, and that on account of
the defect in the title, a recovery could not be
had Bgainat Roberts. The object of the bill
was that the bond might be set up and the
ClntilT rtlieved. The atatute was pleaded in
, and the defendant atated alao, "that he
had distributed the estate among those entitled
agreeably to law; and from length of time he
was not able to produce his vouchers," etc.
Thia was clearly not a case where the plain-
Si*] tiff prayed a speciflc 'performance; and
r*t it waa xteoitted oy the counsel to be the
same In prtndple as the one above referred to,
of Smith V. Hickman'a Beirs.
In Peck V. Wheaton Mart, k Yerg. Rep.
363, the Supreme Court of TenneHsee Bay, "we
are moreover of opinion that the Act of
1715, above quoted, will operate as a bar; and
that that act in in force, we consider one of
the beat -established positions liligsted in oar
This bill was brought to subject the lands
which had descended to the defendants to the
payment of the debts of their ancestor, and the
court very properly held that tliv statute waa a
good bar. The complainants were, substan-
tially and technically, creditors. This ahowa,
too, that it waa the ordinary course in Tennea-
see, by bill in chancery, to make the landa
descended to heira liable to the debts of the an.
The case of Armstrong v. Campbell, 3 Yerg.
20S. ia cited. In the margin, thp reporter says
that the only exception to the operation of the
statute of limitations ia where the trust ia cre-
ated by expreaa contract, and where the relation
of trustee and cestui que trust exists in fact,
and not by implication. But in thia case the
question did not come directly before the
That the statute of limitations is applied, by
courts of equity, in ail cases where at law ft
might be pleaded, ia a well. settled principle.
At law, to make the statute a bar, there must
be an adverse posaession; and by analogy a
court of equity, in a similar case, will hold the
statute to be a good bar.
But the statute insisted on aa a bar in thia
case does not depend upon posseaaion. It ban
a creditor who does not sue the heir within sev-
en yeara. There can be no doubt that the stat-
ute applies where a creditor seeks to make the
heir liable for the debt of his ancestor, on the
ground that either personal or real property
descended to him. And thia appears to be the
decision of the Supreme Court of Tennessee on
the statute. There is nothing in their decisions
referred to which show that they have given
effect to the statute beyond thia. By the stat-
ute of 1B19, which ia wholly different in its
language from the Act of 1T15, a bar is created
indiscriminately, to aiiits in eqviity as well as at
law. But this statute doea not govern the case
under consideration.
In the case of Hagaard v. Mayfleld, 5 Hay.
121, the court 'say, "as to the Act of ['««
Limitation of 171G, where ia the obligee in such
a case aa the present barred as against the heirT
He has no demand against the executor when
he electa the land, and cannot therefore be
barred aa to him. His demand is only against
the heir, and that, too, in equity, upon a trust
to be performed by the heir, who, until per-
formance, holds the land for the obligee; and
he ia only barsble, as in case of equities, bv
the lapse of twenty years unaccounted for.^
Thia point was not involved in the case, but
the question shows the views of the court.
From a careful examination of the cases la
which the ninth section of the Act of 1716 has
undergone a judicial construction by the Su-
preme Court of Tennessee, we are satisfied that
the question raised in the present case has not
been decided. And this court can have no he**
itation in saying that the complainants in thia
SuPBniE CoDBT or tbi UNimi Stath.
tsu
■ult ean In no mmet ttnae, olMming At thty
do ft spedflc execution of tba contract, be con-
•idered creditors within the meaning of tlie
■tatute. Thej do not seek to subject the lands
which descended to the defendant to the pay-
ment of debts contracted bj bi* ancestor, but to
devett tbe nsked legal title in favor of an equity
elearlf eatablisbed. An equit]' founded upon
a contract which acknowledged the receipt of
th« cons! deration in full in 1787; and, as is
prored, the same consideration which was paid
by the defendant's father for the land In ques-
tion; an equity accompanied by a possession of
more than twenty years.
e they ilept upon their
should have been executed, we find Payni
Virrinia, endeavoring to procure a title. And
at tiiat time he did prove a recognition of his
claim by the widow of the obligor, who was the
only peraon, according to the views then enter-
tainea, that had an interest in tbe land, and waa
capabls of entering into a legal obligation.
Payne'* viiit ia repeated to Vir^nia for tbe
aame object, and be sends an agent at another
time. In ITflS he tells a part of this land; and
In the following year or in ISOO, possession is
taken under tma purchase, and subsequently
ther purcbasH are made; and the postesslon of
the land under Payne and his representatives,
hat been continued to the present time, In
84*] *1S05 Payne died, and this land descend-
ed to his heirs-at-law, several of whom were in-
fants; and it fa admitted that until the year
1B01, there was no court of chancery in Ten-
nessee, through which the specific execution
of a contract could be enforced. And it is
C roved that this land hat been called Payne's
md for thirty-Bve years.
These facts being proved, does the case come
within any decision by tbe courts of this country
or of England, where the specific execution of
a contract has been refused, on the ground of
lapse of timer
When the condition of the parties, their re-
mote residence from each other, their deaths,
the state of the country and its tribunals, are
considered, it would seem that instead of being
negligent in the prosecution of the claim for a
title to this land, Payne and those who claim
under him have shown more than ordinary dil-
igence. Even after the death of Payne, we find
Ut son and administrator in Virginia, endeav-
oring to procure the title. And at this time, as
well at at all tines previously when application
waa made, the right of Payne waa acknowl-
edged.
Under such circumstances this court cannot
ronsider the lapse of time as operating against
the right set up by the complainants.
The instruments under which a part of the
complainants set up an equity derived from
Payne's heirs were proved; but they cannot be
sanctioned by this court, except where suchin-
■truments were executed by tbe heirs of full
age. It is the duty of the court to protect the
interests of minora; and we think the decree of
the Qrcuit Court In this respect, as well sa in
erery other, Is eorraet] taA It la tltarafora ftf-
flnaed with eoita.
«•
Thit cause came on to be heard on the tr«B-
TtpC of the record from the Grcuit Court of
the United States for the District of West Ten-
nessee, and was argued by counsel; on consid-
eration whereof, it is decreed and ordered by
this court that the decree of the said Circuit
Court in this cause be, and the same is berebj
afltrmed vrith costs.
'THE MAYOR, Etc., of NEW YORK, [•«»
GEORGE UILN.
GEORGE BRISOOB et tl
.NK (
;kv.
aei Invalvlns COB-
lurt was net toll.
THB UAYOB Etc., of NEW YORK.
GEORGE MIUI.
RIT of error to the Circuit Court of tbo
United SUtea for the Eastern Diatrict of
New York.
WS
¥?
RIT of error to the Circnit Court of the
United States for the District of Kentucky.
Mr. Ogden for The Mayor, etc., of New York,
and Mr. Wilde for George Briscoe et al. inquired
if the court had come to a fnal decision us to
the argument of the cases involving constitu-
tional queatlont at the present term.
Mr. Chief Justice Haithall. The court can-
not know whether there will be a full court
during the term; but as the court ia now com-
posed, the constitutional eatet will not be takes
up.'
12th February, 1S36.
■WILLIAM CALDWEIA Isaac (^Idwell, [■««
and Samuel Brents, Appellants,
SARAH and GEORQB CARRD.'GTON'S
HEIRS.
Parol agreement to exchange lands — effect of
execution by one party — effect of notice to
third parties — decree of one State court en-
forced in another.
A bill was tiled In tbe CIrealt Court at tba Unit-
ed States tor tbe District of KentuckT. clalmlns
certain lands In Kentucky under >d acmment to
Itarol bj CsrrlDiton with WUtlams, tor an ex*
change of isnda. and In which eichaosa C, the
husband and aerUor ot the elalmsnt, agreed to
(Ive certain lands then owned b; blm to Vlrfinla
1. — The court was, at the time this motion was
made, and dartns the whole term, eompoeed of sli
Jnatlees ; the vacaner occasioned br the realnattoB
•f Hi. dnstlc* Ouva) net ba*lBC btan filled.
iUjJlWKLI, SI U. V. CABaiKG'TOll'B Hziu.
. . ... . . jscmIob, uid part
jold, ■nd for whiA W. wu to eonTcj
ain mllltarj laudi 1b KeDtuckj lo C. Tbr lilll
vrajed tbit tlie faelr ot Vi. ibould be decreed to
CQ«T«T tb« land*, and tbat certain penaoi who,
kDowlDt or tbf aereemcnt tetwren C. aod W., bad
nrcbaKd rrom Ibc belc a( W- and wbo bad ob-
Eiaiiied rr»u the heir ot W. tba IcibI lllla to a part
ot tbc WDC landa, ahauld b* decreed to coDTej tba
■aiiie to Uie complalDaDt.
Tbc coart b«ld tbat, althouih tha itatnte ft
fianda avolda parol coatracti for
execution ot tb
ineton. bf conveiin,
■— lo WlUli
t Id thti cai* t
• nndoubtedl; aapposed In Virginia ti
I lbl>
— _,_ ^ . aa inv jaDoa uen laj In
VIrEinla. Kentuck; belDg tben part ot tbat State,
Ibli conatructlon lormi tbe Jaw of coDtract.
Tbe eTidence In tbe caute ibowed tbat tba »T~
•ODa wbo bad purcbaecd part ot Ibe lands to wblcb.
tj th« acreament wllb Wllllamii. Carrlngton wai
mMtled, bad notice o( tbat aireement; tbej could
darlTe no title from anch a pnrcbaae agataat tbM«
wbo beld under C.
AecordlDR to tbe Conatltotlon and Ibwi ot tbc
United SiBica, and tbc declalona of tbia court, tbe
recular proceedlDin and decree □( a countT court
ot VlrglDla are allowHl the aaine full (aftb and
credit In KentQckr tbat lbC7 would receive In Vlr-
KlBla. It Bucb a drcrce would be enlorced Id Vlt-
slnla. ot [I aueb a decree pronouDi^ed [n KentuchT
woDld be enforced In Kentuckv, tbe decree of tba
Clmlt Court at tbe Cnlted SUtes, alttlnx U
KeDtack7. enforcing It, waa correct.
APPEAL from th« Circuit Court of the Unit-
ed States for the District of Kentuckjr.
In January, 1821, Saraii Carrington, a citizen
of Virginia, widow and devisee of George Car-
rington, filed a bill in the arcuit Court of the
Diatrict of Kentucky, atating that at October
Term, 1817, of the County Court of Halifax
Cootity, in the State of Virginia, iha, be tbe
devisee, obtained a final decree on the chancery
■tide «f aaid court against a certain John R.
Williams, heir-at-law of John Williams, de-
S7*] ceased, that he convey 'to her his claimi
as heirs to the said John Williama, to all the
military lands to which the said John Williams
had title or claim in tbe State of Kentucky.
The iand ao claimed by the complainant con-
siated of one surrey of one thousand acres of
military land in the County of Adair, and near
to tbe town of Columbia, No. 168; of one other
survey on military warrant, of three hundred
and fifty acres, situated on Beaver Creek, in the
County ot Barren, No. iG6; of another military
Burvey of five hundred acres, situated on Beaver
Creek aforeaaid, and In the County of Barren
aforesaid, No. EST; of a location for one thou-
aand acrea of land south of the Tennessee River,
and adjoining the land, or a tract, at the Iron
Banks, founded on a military warrant. No.
165: of another entry or location of one thou-
sand acrea, on said warrant, adjoining the lands
of Girault. She states that her testator had,
in his lifetime, to wit, at May Term, 1803, of said
County Oourt of Halifax, obtained a decree
against the said John R. Williams, that he
should, by his guardian ad litem, John B. Scott,
aaiign aiid transfer the said surveys and loca-
KoT«. — SpeclBc pertormance of parol contracts
tor Isnd, see notPS to 4 L. ed. U. 67 66, E1Z. 204 ;
5 I. ed. D. a. 823 ; 33 L. ad. U. 8. 818 : B» L. ad.
U. fl. B56.
JadKnents ot Rtate courts, when concluslvs or
■et,lD another State. Bee notes to > L. cd. D. 8.
411:7 I.ed. 0. a.»3SiUI.ad.Q. aefSiML.
ed. D. B. IIU,
f Ii. ^L.
did assign said papers to the said testator, as
appears by his several indorsements on said
papers. That in pursuance of the decree pro-
nounced in her favor a* davisee aforesaid, the
said John R. Williams did afterwards, to wit, on
the 16th day of Uarch, 1820, by hla deeds duly
acl^nowledged and proven according to the law
of Virginia, convey and assign to her the sever-
al tracts of land aforesaid, as fully appears by
his deeds filed, and made a part of the bill.
That the said John R. Williams, after his ar-
rival at mature age, prosecuted an appeal from
tbe decree of the County Court of Halifax
aforesaid, to the Superior Court of Chancer;
for the Lynchburg District, where and when,
upon a final decree of the latter court, the de-
cree of the County Court aforesaid was affirmed
in all Its parts. She avers that tbe said
County Court of Halifax had full power, author-
ity and jurisdiction, to hear and determine, and
to decree in the said cause, and to pronounce
and to make all orders, judgments and decrees,
which they have so made, touching tbe premises;
and she farther states and avers that the said
Superior Court of Chancery for the Lynchburg
District had full power, authority and jurisdic-
tion, to hear, determine, 'and to affirm ['SS
the decrees, orders and judgments of the Coun-
ty Court of Halifax. She farther states tbat
the said judgments, decrees and orders, as be-
fore stated, stand, remain, and are in full forM
and unreversed, as will appear from a full, tnw
That having so obtained the decree, and ob-
tained tbe possession of tbe assignments of the
plats and entries aforesaid, and also the deed
aforesaid, she had well hoped to have obtained
and enjoyed the lands aforesaid ; but she states
that she is deprived of the )>enefit of her said
decree and transfers, by a fraudulent combina-
tion between the said John R. Williams, who
resides without the jurisdiction of this court,
and a certain Samuel Brents, William Caldwell,
and Isaac Caldwell, citiiens of the State of
Kentucky, and who are made defendants to tbe
bill. She states that the said defendants, with
a full and perfect knowledge of her claim and
that of her testator, on or about the 6th day ot
January, 1818, entered into a contract to pur-
chase, for a price very inadequate, and no part
of which have they paid, tne two thousand
acres of land south of the Tennessee River, aa
fully appears by certain articles signed by the
said defendants and the said John R. Williama,
of that date, filed, and made a part of the bill
That the said defendant, William Caldwell, for
a consideration wholly inadequate, a very small
portion of which, if any, hath been paid to the
said Williams, about the 30th day of August,
I81E, pretended to buy of said Wiiliama the
aforesaid one thousand acres, near the town of
Columbia, as appears by certain articles of
agreement between them of that date, filed, and
made a part of the bill; and that the said de-
fendant, Isaac, was fully apprised of the fraud-
ulent combination to cheat and defraud her,
and aiding and advisin|{ thereunto. She farther
states that the defendant Samuel, with a full
knowledge of her claim, and with a like Intent
to ehMt and defraud har, about the Slst day of
•1
UoDR or THE UniTED Statu.
August, 1815, entered Into » contract with laid
John R. Williams for a part of said lands, as
appeari b; certain articles between them of
tuat date, filed, anti made a part of the liill;
and that, notwithstanding that she was in pos-
Bosaion of the original plats and certidcatea of
svirre]' with the indorsements thereon, of which
he defendants were well advised, that they have
SB*] artfullj 'contrived to obtain patents in
the najne of the esid John R- Williams for the
military surveys aforesaid; and have, as shs is
informed and believes, obtained to themselves.
In some way, deeds for the whole of said sur-
veys, and have aUo obtained assignments, or
ranafers, of the entries south of the Tennesaee;
uid will, on such fraudulent assignments, ob-
tain, or attempt to obtain, grants from the
Commonwealth, unleas tliejr are restrained by
iht interposition of the court. The bill prava
an Injunction, enjoinins and restraining the
■aid defendants, and each of them, from taking
or receiving from the said John R. Williams
any letter of attorney, deed, or writing, touch-
ing the lands now in controversy, until the
matter can be fairly tried in ecjultyj and, also,
an order enjoining and restraining the said de-
fendants, and each of them, from surreying, or
attempting to survey, said entries south of the
Tennessee River, or in anywise interrupting or
hindering the complainant in aurreying the
■ame, or procuring a, survey therefor; and, also,
that the defendants convey and release all and
any title they have acquired in virtue of any
contract made with John R. Williams, or other-
wise, and render up poeeeaaion of the lands con-
veyed, and for other and further relief.
The answer of Samuel Brents states that the
landa in the complainants' (till mentioned were
entered in the name of John Williams, and ao
far as surveys have been made and registered,
they have been in his name. He does not ad-
mit that any valid sale of the lands has been
made, such as could bind John Williams in law
or conscience. Since he has heard anything on
the subject of a contract between said Williams
and Gecrge Carrington, he has understood it
was a matter of doubt whether a contract of
any kind took place or not, and if any ever did
take place, it was after the operation of t.hf<
■tatute of frauds and perjuries; was merely ver-
bal, very vague and uncertain, and not at any
time reduced to writing, and consequently not
obligatory on the said Williams, or those claim-
ing under him. Should any such verbal con-
tract appear (and he verily believes there never
was any) he pleads and relies on the said stat-
ute to prevent frauds and perjuries, in bar and
preclusion of the said contract, and of the claim
of the complainants, or any person holding or
claiming under the said contract. He is in-
formed, and believes that the said John Wil-
•0*] liams and the 'said George Carrington
lived many yean In Virginia, in the same
neighborhood, and bad many opportunitiea of
consummating an exchange, or sale of said
lands, if any existed; but that no suit was ever
brought in the lifetime of said Williams; and
that the respondent is informed and believes
that the said Williams died sometims about
the years 1796 or 1790, and that the suit men-
tioned in said bin, upon which the decree (if
any such existed] was founded, was contrived
liter the deatit of the lud Williams (although
it Is pretended that the said contract was made
many years before his death), when there was
no person left who was able or wilHog to state
the true nature of the dealings between the said
Williams and the said Qeorge Carrington. He
heard of a suit depending in some county court
in Virginia, but heard and understood that It
was founded on a contract not liinding in law
or equity. He states that he is informed and
believes the said John Williams departed tliie
life, leaving John Robert Williams, his son and
only heir-at-law, and that the lands in the bill
mentioned descended to his said son; and that
about the last of August, 1BI6, the said John
Robert Williams called on this defendant to at-
tend to the securement of the titles to said land*.
The respondent undertook said business, (the
patents for said lands not having then issued)
and proceeded with much care, labor and es-
to a part of said lands have not yet been ob-
tained. Two thousand acres thereof, in two
different entries, had not then been surveyed,
and he does not Icnow whether they are yet
surveyed. The latter two thousand acres lie
below the Tennessee River, in this State, and in
the late purchase made of the Indians; the said
lands lying in the Indian boundary, this re-
spondent presumes is the reason why said two
thousand acres have not been surveyed, regis-
tered and patented. The respondent, on the
Slat of AuRuat, 1816, entered into a written
contract with the said John Robert Williama, by
which the respondent wss to have Gve hundred
acres of said landa; and that, on the 12th of
November, I81S, patents issued to the said John
Robert Williams for two of the tract* in the bill
mentioned, one of three hundred and fifty
acres, on Beaver Creek, and the other of Ave
hundred acres, adjoining the said three hundred
and fifty acres; and that, in satisfaction of the
contract between the said John Robert Wil-
liams 'and the respondent, the respond- [*tl
ent took five hundred acres out of the said
two tracts. Including the whole of the three
hundred and Gfty acres, and the lower part of
the said five hundred acres; and that after-
wards, to wit, on the 5th of January, 1818, the
respondent purchased the remainder of the five
hundred acres aforeaaid, and having satisfied
and completed the payment of the considera-
tion for said five hundred acres, embracing the
three hundred and fifty acres, and one hundred
and fifty acres of the five hundred acre tract,
and having bought of the said John Robert
Williams the balance of the five hundred acres,
the respondent received a deed of conveyance for
said two tracts of three hundred and fifty and
five hundred acres, amounting to eight hun-
dred and fifty acres. This deed was made,
signed, sealed and delivered, to the respondent,
and bears date the said 6th day of January,
lets. And the respondent now has the posses-
sion of said eight hundred and fifty acres of
land, and hopes he shall not be disturbed in the
enjoyment tnereof by the pretended claim of
the complainant*.
At the time of receiving said conveyaoea, or
at any time before, the respondent had no
knowledge or information of any valid claim
to said £nd b^ any other person than the said
John R. Wilhama, who conveyad ta the rn-
PMera t.
uu
Caiawill r ai. v. CASXuioioH'a Hedm.
U
•pandmt. The raspoadent dow not
oUcct of heBiing uijtliing of the claim of the
complatnuitB before his convefkuce ; but had
only heard that same verbal or illegal claii
waa aet up in Bome bill filed in some count,
court in Virginia, and, of which verbal claim
the reapondent did not conceive bimaelf bound
to take notice.
The reipondent, on the 0th of January, 181B,
In conjunction with hia co-defendants, William
•nd Isaac Caldwell, purchased two thousand
•erea of land lying in the Indian boundary, not
then Burveyed, and not yet patented, and re-
ceived an a.isignment of the aaid John R. Wil-
liams of said land, being in two entries of one
thousand acres each; one entry. No. T, dated
Sd AugUBt, 1784, calling to adjoin the town;
the other, No. 384, dated 10th August, 17S4,
exiling to adjoin John Giralts, Richard Taylor,
uid James Bradleyi no other title to said lands
haa as yet txien obtained by this respondent.
The foregoing statement of facts exhibits the ex-
tent of the respondent's interest in the said
lands. He states that be knows nothing of the
fact stated in said bill of the guardian of said
tl*] John R. *Williams, while aaid Williams
waa an infant, making assignments of the plats
and certiflcatea of said lands. If such was the
tect, the respondent believes tt was an nnlaw-
fnl act, and therefore not binding In law oi
equity. He knows nothing of the conveyance
alleged to have been made by the said Johi
Witliama, on the 18th day of March, 1820.
reapondent requires its production and proof
of ita legality, and that it conveys to the com-
plainanta an intereat in the landa previously
aold and previously conveyed to the respond-
ent. The deed of conveyance made by the
aaid Williams to him, is of record in the County
Court Clerk's office of Barren County, from
whence a copy may be had. Copiea of the pat-
«nta of the aaid three hundred and fifty and five
hundred acre tracts of land may be obtained
from the reeister's office. The complainants
nay eaaily obtain such copiea; or, if it be at all
Biaterlal, the respondent will file the originals.
The respondent protests against the jurisdiction
of the court of Virginia to operate on the lands
in Kentucky, to compel conveyances by any
aet done by the guardian of aaid Williams; and
that, if the decree Is only to operate upon the
Mid John R. Williams, the title of the com-
Elainanta can only be considered as commenc-
ig from the date of the alleged deed to said
Sarsh, of the 18th of March, 1820, as this re-
spondent was not bound to take notice of a ver-
bal aale, or the proceedings in a foreign court
not having jurisdiction of the subject matter.
The answer of William Caldwell denies that
any aale of the lands waa made by John Wil-
liama to Qeor^ Carrington, which was valid or
Unding, and if any was made it waa not re-
lueeei to writing, and waa roid by the statute of
frauds, and he pleads the same statute. The
gnardiaa of John R. Williams, to convey the
land. He states some transactions with John
W. Seott relative to the land, and information
t» have been received by a person appointed by
tSm to make inquiry about the land, and to
Bwke * purchase of part of the land, and that
an agreement was made for him with Scott and
t lb od. I
Paul Oarrington for the land; but afterwards,
when prepared to pay the purchase money for
the same, he found 8cott and Carrington had no
litle to the land ttiey contracted to sell to him.
Afterwarda, John R. Williams came to Ken-
tucky. 'He consulted several of the ['Q*
most skillful and learned lawyers in Kentucky,
all of whom advised this defendant that the
said Williams would bold the land, that the
claim of Carrington was null and void. This
defendant did verily believe that the said John
K. Williams was the onl^ lawful owner of said
land, and that the elaira of Carrington waa
fraudulently put up to cheat an infant; that ha
did accordingly purchase the said land from
the said Williams for the same price he was to
have given the said Bcott and Carrington,
which was considered a full and fair considera-
tion, and not a small and invaluable one, as
falsely set forth in complainanta' bill. He
states that he has not been party to any suit in
Virginia or elsewhere, between any of the com-
plainants or their ancestors and the said John
R, Williams; and consequently, aa he believes,
should not be bound by any decree pronounced
by the courts of Vir^nia in any such case. He
protests against the jurisdiction of the courts of
V'irginia to operate on the lands in Kentucky;
and if the decree* of the courts of Virginia can
only operate on the person of the aaid John R.
Williams, the title of the complainants can only
be considered as commencing from the date ot
the alleged deed from the said John R. Wil-
liams to Sarah Carrington, IBth of March, 1620,
as this defendant was not bound to take notice
of verbal sales, or the proceedings of foreign
courts who could not entertain jurisdiction of
the subject matter.
The answer of Isaac Caldwell admits the
purchase of part of the land as stated in the
bill from John R. Williams, under agreements
for the purchase of the same. Aa to notice of
the title of the complainants and of their pro-
ceedings to establish the same, the answer states
as follows: "This defendant states that, pre-
vious to his purchase of said lands west of
Tennessee, he did see the record and proceed-
ings of the Halifax County Court in Virginia,
made in the suit decided in 1803, wherein
George Carrington (the complainant's husband)
was FOmpiatnant, and aaid John R. Williams,
by his guardian, waa defendant; that his ob-
ject in examining said record and proceedings,
originally, waa to ascertain in whom the best
right to said land vested ; and, at that time, this
defendant was, for several considerations, de-
sirous that the claim set up by the complainant
should prevail; but, upon exhibiting a full tran-
script of the 'record of said suit to three 1*94
four counselors in this State, reputed the
__it learned in the law, he was advised by each
of them that John R. Williams would eventu-
ally succeed under the land laws of the coun-
try gainst the claim under which the com-
plainant alleges title; and that the evidences of
the purchase, charged by the complainant to
have been made by George Carrington of said
John Williams, were not sufficient to authorize
and support a recovery against John R. Wil-
s, the heir-at-law. Under this intelligence,
defendant, believing that he waa purchas-
ing the only right by which said land could be
held, entered int« the contract aforesaid with
«S
Hid Joha R. WilliftmB. Thii defendnt ealla
upon said complainant to produce and file com-
pieta tranftcriptB of the icveral records and pro-
ceeding* of the courts in Virginia referred to in
her bill. He denies that ■ knowledge of the
record and proreedingi in the *uit decided in
1S03 would amount to notice of a superior
equit]' In the complainant, or her ancestor or
devisor, or that lucb notice eould be obtained
from the bill, answer and depositions, in the
latter auit, which were all the evidences upon
that subject which this defendant had, at the
time of his purchase aforesaid from said John
R. Williams; for these documents, instead of
presenting to the mind evidence of an e<^uitabte
claim, go to repel the ver; idea of its existence,
•J b; the complainant's own showing in the
bills and depositions, the contract under which
she attempts to obtain said lands, is uncertain,
tUegal and void. This defendant believes that
the complainant was satisfied of the vagueness
and iaaulliciency of the decree of 1803, as she
seems, about the jear 1816, to have instituted
another suit, founded upon the same contract,
and to have abandoned the decree formerly
pronounced.
This defendant submit* to the court whether
his rights to lands within thia Commonwealth
are to be thus bound by the decree of a court
of another State, in a suit to which he was not
party, and which decree, upon the face of ths
record, was predicated upon facts entirelj in-
■ufficient to sustain it under the laws of this
Btate, whaterer may be the lavs or rules of de-
dsions with the courts of such other State; and
if the court should be of opinion that thla de-
fendant is not bound by a decree pronounced
•B*] in the State of ^Hrginia subseauent *to
his purchase, or, at any rate, of which he bad
DO knowledge till subsequent to his pur-
chase, he then hopes that the complainant
by her devisor from said John Williams. He
conceives that the transfer and assignment
miide by said John R. Witliama to said Sarah
Ckrrington in 1820, can have no relation to, or
tanctity attached to it, on account of the decree
|ironounced between those parties in Virginia,
M that decree eould only operate and be exe-
cuted upon the person of said John R. Wil-
liams— the thing which was the subject matter
of the decree being without the control of the
Oiancellor, and not subject to the law* of thia
State, or to be afTeeted or operated upon by the
process of this court; and that, therefore, the
aaatgnment obtained by this defendant and his
copartners, being prior in time, should prevail
against the pretended equity of said complain-
ant. The defendant is persuaded that the aa-
algnment executed by said John R. William*
to the complainant was not obtained by proc-
ess under the decree aforesaid, but that said
complainant, being aware of the inefficacy and
illegality of said decree, has confederated with
■aid Williams for the purpose of defeating the
f'rior and better claim of the defendants, and
or that purpose ha* induced laid Williams to
execute the assignment dated in 1820. The
respondent insists that if any sale was ever
made of the lands in question by said John
Williams to aald George Carrlngton, that such
sale was verbal, and not wiiUnoed by aiif apae-
rBK UinrD Siatm. IMU
ment or memorandum In writing; and, there-
fore, waa void under the statute to prareat
frauds and perjuries upon which he relies.
Witnesses were examined in support of the
allegations in the bill, whose testimony I* stated
in the opinion of the court. No eountar avi-
denca was offered by the respondent*.
On the 2Ist day of May, 1832, the Qreult
Court by a Qnal decree ordered that the defend-
ant* do, by their joint or several deeds, on or
before the let da^ of July next, by a euffleient
deed, or by sufficient deeds, release and convey
to the complainants all right and title whica
they have, either jcrintly or severally, in the
several tracts of land referred to in the bill, and
included in the deeds of John R. William* to
George Carrington, and also his deed to Sarah
CarringtOD, with special warranty against them-
selves 'and all persons claiming under [*>•
them; and also tnat the^ do, on or before the
said day, severally or jointly surrender to the
complainants, their agent or attorney, posses-
sion of said tracts of land; and to enable the
complainants to take the posaesalon, the court
do direct and order that the clerk do, on tb«
request of the complainants, at any time after
the said 1st day of July, baue to them a writ
or writs of habeas faclae possesaionem, directed
to the marshal of the district, whose dut; it
shall be to execute the same.
The defendants prosecuted this appeal.
The case was argued by Ur. Bibb and Mr.
Haidin, with whom wa* Ur. LonghborouA for
the appellant*, and by Mr. Jone^ with whom
was Mr. Coze, for the appellees.
For the appellants it waa Insisted:
1. That the verbal contract of 1787 or 178&
alleged, was against the statute of frauds, and
not such a* court* of equity ought to enforce
specifically.
i. That the proceedinga and decree of Hali-
fax, In 1803, did not constitute an equity; that
those proceedings were inoperative and void.
3. Tnat notice, in 181G, of those proceedings,
did not convert them into an equity, but wa*
notice of an illegal, insufficient claim; dead in
fact and in law; prescribed by the statute of
frauds, and extinguished by lapse of time.
4. That the proceeding* and decree of 1617,
and subsequently in the courts of Vininia, did
not bind the appellants, dtiieni of Kentucky,
because they were not parties.
5. That notice of those proceedings, had In
Hay and November, 1S16, cannot overreach tha
equities acquired by the appellants before such
notice, nor make them partiea to those proceed-
ings and decrees.
6. That the appellees have not made out any
equity prior or superior to the equities of the
appellants; that the deeds of 1820 executed by
John R. Williams by force of the decree and
attachment, are not evidences of a prior and
superior equity on the part of the appellees,
but posterior and inferior to the equities of tha
appellants.
T. That the appellants were In a predicament
to re-examine *the decreea of the courts [*9T
of Virginia against John R. Williams, the ap-
pellants not Ming parties, nor ooncludad by
those decrees.
8. That this court ought not to decree against
these appellants barely upon the foot of the de-
enea a^nat John B. Willlama, but will ax-
P«t«n t.
CUDWCU. R Aj_ T. CAiiiiTomi*a ffln
•■Jm tbe grounds of those deereea before tluj
auJM a new one.
9. Thmt there it no bftsii for devesting the
■ppeUuits of their legal titles and posBeasioii,
nor fw nliing into activity the extraordinar}'
powers of a court of equity; but abundant
rcaaona for refusing to interfere against the in-
toreata of the appellants.
The decree of tne Circuit Court is erroneous.
1. In devesting the title and possession of
William Caldwell, acquired under his contract
«f 30th of August, 181S, and hii patent of IZth
of November, 1816.
2. In devesting Samuel Brenta of his equity
nnder his contract of 31st of August, 1816;
fLDd, alao, in devesting his title and possession
to eight hundred and fifty acres, acquired there-
tinder by his deed of 1818.
3. In devesting the dafeodants, William
Caldwell, Isaac Caldwell, and Samuel Brents,
of their equities and legal advantages under
their joint contract of 6th of Jaauitry, 1818.
4. In devesting Brents of his legal title ac-
quired under his deed for eight hundred and
fifty acrea, and his other Interests, without ajiy
allowiuice for services and expenses in survey-
ing and obtaining the grants.
5. In sustsiuiug the bill and making a de-
eiee, when the court should have refused to
interfere, but leave the complainants to their
rwnedy upon the deeds of John R. Williams.
Upon the effects of the proceedings and de-
ana of the Court of Halifax County, Virginia,
Bpc« the rights and interests of John R. Wil-
liama, the appellants' counsel cited Bond v.
Hendricks, 1 Marsh. 398, 471, fiB2i Delano t.
Joaling, 1 Litt. Kep. 417; Estell's Heirs t.
CUT, 2 Slarsh. 600; Afoore t. Farrow, 1 Uarsh.
41; i Bibb, fi28, 526; 4 Bibb, Il-OS; 1 Call's
Rep. 1, 4; 1 Monroe, 72, 109^ B Utt. 80; 3 Bibb,
525, 528; 8 Atlt. 631; 1 P. Wma. 004; 2 P. Wiu.
403.
As to the elTect of the statute of frauds on a
contract by parol for the sale of lands, the ap-
• S*] pellants' counsel dted 1 'Munf. 610, G18;
1 Bibb, 203, 207, 200; 3 Marsh. 446; 1 Hen. &
linn. 1B2, IIO; 6 Munf. 308; 3 Marsh. g&S; 3
Monroe, 41; UiUer v. Mintyre, Q Pet«ra, 87; S
Utt. £64; S Marsh. 446.
triet of Kentucky, directing the appellants to
rdeaae and convey to the appellees all the right
aad title which they hold, jointly or severally,
in the tracta of land in the bill mentioned, with
•pecial warranty against themselves.
The bill filed in Januai?, 1824, by Sarah
(krrington, widow and devisee of George Car-
lington, deceased, claina from the defendants
as pnrebasera from John R- Williams, heir-at.
law of John Williams, deceased, who is not ad
inhabitant of Kentucky, and therefore not a
party to the suit, all the military lands of the
■aid John Williams lying in the District of Ken-
ta^y, amounting to four thousand acres, which
land was sold, as is alleged, by John WilliauiB
in his lifetime to George Carrington, the tcita-
tor of the plaintiff in the Qrcuit Court. This
daim is foundad on a decrM pronounced by
tha County Court of Ealifu, 1b Uie State of
» bad.
Virginia, sltUng in chancery in November, 1817,
on a bill filed in November, 1816, by the said
Sarah Carrington against the said John ft.
Williams, and on a deed of conveyance made
on the IBth day of March. 1820, by the said
John R. Williams, to tlte said Sarah Carring-
ton, in pursuance thereof. This decree waa
affirmed on appeal. The bill also refers to a
suit brought by George Carrineton, in his life-
time, against the guardians of the said John
R. Williams while an infant, in which a decree
was obtained, directing the guardian of the said
John R. Williams to convey and assign the en-
tries and surveys of the said military lands to
the said George Carrington. The plaintiff prays
that these decrees, with the proceedings on
which they were founded, and the conveyances
made in pursuance of them, should be taken aa
a part of his bill.
The biU filed in the County Court of Hall-
fax, in November, 1BI5, charges that Georg*
Carrington in hia lifetime exchanged certain
lands lying in the said county with John Wil-
liams, 'deceased, tor a military claim of [*•!
four thousand acres, to which the said Willianu
was entitled. That the said George, by the di-
rection of the said Williams, caused his land
in Halifax to be conveyed to a certain John
Camp, who waa put in possession thereof; but
the patents for the military lands not having
been issued, no conveyance was made of the
legal title to them. Sometime after the death
of the said Williams the said Carrington insti-
tuted a suit in the Court of Halifax against
John Robert Williams, then an infant, the
only child of the said John Williams, to ob-
tain an assignment of the entries and surveys
for the said four thousand acres of military
land. As the bill filed in that suit contains a
full statement of ths contract with a descrip-
tion of the land It claims, the plaintiff praya
that It may be taken as a part of the present
bill as fully as if literally inserted.
On the 23d of May, 1803, a decree was pro-
nounced In the said suit, which, among other
things, directed a certain John B. Rcott, the
then ^ardian of the said John R. Williams,
to assign the entries and surveys of the said
military lands to the said George Carrington,
so as to enable him to obtain patents therefor
in hla own name; and did further order that
the said John R. Williams should, on attaining
his age of twenty-one years, release all his right
to the said George Uirrington. The plaintiff
prays that this decree and all the proceedings
in the suit may be taken as a part of his bill.
The aasignments directed by the decree wars
made by the said John B. Scott, but Georn
Carrington departed thia life soon afterward,
not having obtained the patents. B^ his last
win he devised these lands to the plaintiff, who
has applied for patents, but is informed at tha
land-omce that the assignment of the said Scott
does not authorixa the register of the land-office
in Kentucky to issue them. The said John R.
Williams having attained bis full age, not only
refuses to release his claim and to assign tha
said entries and surveys, but has gone to Kcn-
tuckv with a view of selling the said tamls.
The bill prays for an assignment of the entries
and surveys, and a relesA of the right of the
said John R. Williams, and that he may be en-
joined from performing any act which may
4»
BuTBun CouKT OF THi Umm Statd.
diiable him from making a complete title to the
plaintitf.
The defendant in hie answer denies tlie on-
too'] tract, and adds 'tliat If iutli a POnlrart
did exUt it was verbal, that no note or iiipmo-
randum thereof was signed bj cither of the
partiee, and that it IB void bj the itatute of
frauds which he pleads.
A general replication was filed and dpposi-
tiona were taken, after which the following
ntr^ WM made: "And now at this day, to
wit, at a court hotden for the said county at '
the conrt-hotise thereof, on the 27th da;
October, 1817, came the parties by their coi
•el, bj whoae coneent this cause was this c
heard upon the bill, answer, examinationi of
iritnesses, the bill, answer, examinations of wi
nesaee in a cause formerl; depending in th:a
court between George Carrington, plsintilT,
and the defendant, by his guardian, defendant,
And was argued by counsel; on consideralii
whereof, it is decreed and ordered, that t)ie d
fendant do forthwith assign to the plsintilT in
proper and legal manner, the surveys and othi
title papers in the original bill mentionpil, T)
defendant having appealed from this dcvrce.
was affirmed at a Superior Court of Chancer
held at the town of LTncbburg. on the liiili
day of May, IBIS,"
In pursuance of these decrees, the said Jotm
a WiUiame did, on the 18th day of March, ii
the year 1820, by his indenture of tliut dutc
convey to the plaintiff the military lands ii
the bill mentioned, consisting of one tract o
five hundred acres, lying on Beaver Creek
•leo of one other tract of three hundred and
fifty acres, likewise lying on Beaver Creek
also of one other tract of one thousand acrt^s
lying on Russell's Creek; also of one other trac
of one hundred and fiftj acres, lying on thi
fintt creek emptying into Little Barren; also of
one other tract of one thousand acres, lying in
the county of - — — , being the tract of land
entered by John Williams on the 2d of August,
1784; and also of oae other tract of land con-
taining one thousand acres lying in the county
of , entered on the 10th Of August, 1784.
The bill filed in this cause farther charges
that Samuel Brents, William Caldwell, anc
laaac Caldwell, citizens of the State of Ken
tueky, with full knowledge of the plaintilTi
claims, entered into a contract on or about the
Bth day of January, IglB, with the eaid John
R. Williams, for the purchase of the two tracts
of one thousand acres each, lying south -it the
Tennessee, for which entries had been made by
the said John Williams in his lifetime on the
2d and 10th of August, 1784; and that the said
101<] William Caldwell, on the 30th of
August, 1816, with full knowledge of the
right of the plaintiff, entered into a contract
with the said John R. Williams for the pur-
chase of the tract of one thousand acres near
the town of Columbia, in the County of
Adair; and that the said Samuel Brents also,
with a full knowledge of the plainttlT's title,
hath entered into a contract with the sstd
John R. Williams for the said tracts, contain-
ing five hundred acres, and three hundred and
fifty acres, lying on Beaver Creek, in the
county of , and for the tract containing
Me hundred and fifty acres lying on the first
«eek emptying into the littl* Barren, in the
county of . Under lii."^n eontmcts
and otlier pepcre obtained from tlie said John
R. Willinms, the said Ssmucl Brpnts, William
CHldweli, and Isaac Caldnell, who sre made
defendents, have obtained le^l titlca to the
said military surveys, and have also obtained
assignments or transfers of the entries for two
tracts of one thousand acres each, lying south
of the Tennessee, for which they will obtain
patents, unless restrained by order of this
The bill prays that the defendants may be
decreed to convey to the plaintiff, and for gen-
eral relief.
The defendants Rled separate answers, each
denying the contract, insisting that if any con-
tract cJiisted it was by parol, end consequently
void by the statute of frauds; and claiming to
be purchasers without notice of any equity in
the plaintiff.
The several defenses are now to be exam-
The proceedings in the County Court of
Halifax, in the suit brought in 1815, are per-
fectly regular; and, according to the Constitu-
tion and laws of the United States and th«
ilecisions of this court, are allowed the same
full faith and credit in the courts of Kentucky
lliat lliey would receive in Virginia, If the
itecree pronounced by the court of Halifax in
1817, and afterwards affirmed in the !^uperior
Court of Chancery at LynclibuT^, would have
\>een enforced in Virginia ; or if, had it been
pronounced in Kentucky, it would have been
enforced in Kentucky, then the decree for en-
forcing it which waa pronounced by the Court
of the United States sitting in Kentucky ia
The first point to be considered is the con-
tract itself. It is not in writing, and conse-
quently admits only of parol evidence.
Paul Carrington, the father of George, de-
poses that he owned a tract of land in the
County of Halifax, called Dry Branch, contain-
ing *flve hundred and ninety-six acres [*10S
the whole of which, at the close of the Revolu-
tionary war, be gave to his son George; put him
in possession, delivered the title papers, and
"■ ited him to prepare a deed. In 1787 or
, George requested the deponent to convey
the land to John Williams, to whom he had
aold it, in exchange fcr his military lands in
Kentucky. Some little time afterwards, George
requested the witness to convey tbe land to
George Camp, to whom Williams had sold tt.
Ele conveyed to Damp. Some short time after-
wards Williams and George Carrington wera
both at tbe house of the deponent, when
Williams stated that he had purchased the land
from George Carrington and sold it to Camp
for £400. He hae also frequently heard George
Camp say that he purchased the land from
Williams for £400. Has never heard Williams
say he gave hie military lands for the Dry
Branch tract.
Clement Carrington has paid the taxes on
the Kentucky military lands, on account of tbe
estate of George Carrington, ever since thay
Nathaniel Terry was acquainted with tha
Caldwell tj al. v. CAiiiNOTOifl Hxaai
IDS
of the Dry Branch tract, but he never worked
hmndi od it. Carrington did not work it after
th« hU« to WllliBmi, farther tban to finish his
James Eaatham bu frequently heard Colonel
John WillianiB uy that he hid given his lands
in the western country to George Carrington,
In exchange for the Dry Branch tract, which
he afterwards sold to Ceorn Camp.
William Yanc; has heard John WilUsms saf
that he purchssed the Dry Branch tract from
George Carrington, and had given his claims to
lutd in the western country in payment for it.
He haa been frequently in company with the
•aid John Williaroa when this trade was the
subject of conversation, and Williams always
gave the tame account of it. Williams sold
the Dry Branch tract to George Camp.
Thomas Roberts well recollects to have lieard
John Williams say that he had exchanged his
Kentucky lands with George Carrington for
Ua Dry Branch tract.
Tbe deposition* of William Yancy and
Tbomas Roberts were taken in the suit brought
against the guardian of John R. Williams;
J«S*] 'but as they were filed with the bill of
1815, and read by consent at the hearing, they
are supposed to form a part of the record in
this cause.
No counter testimony waa offered.
We think the exchange by John Williams of
his military land for the Dry Branch tract is
fully established, and proceed to inquire into
UM validity of the contract.
Tbe atatute of frauds, of which the defend-
ant* claimed the benefit, avoids parol coatrocts
for land, and will unquestionably avoid that
between John Williams and George Carring-
ton, imleaa the transactions between the parties
take the case out of the statute. Tbe appellee*
maintain tbe affirmative of this proposition,
and contend that the complete execution of the
1 the part of George Carrington, by
indum in writing. For a considerable
length of time this principle appeared to be
firmly settled in the Court of Chancery in
Kigland. Maddock, in hi* Treatise on Chan.
eery, vol. 1, p. 301, says, "if, therefore, it be
clearly shown what the agreement whs, and
that it has been partly performed, that is, that
an aet haa been done, not a mere voluntary
act, or merely introductory or ancillary to tbe
agreement, but a part execution of the sub-
ftasee of the agreement, and which would not
have been done unless on account of the agree-
ment, an act, in short, unequivocally refi-irine
to and resulting from the agreement, and such
thai the party would suffer an injury amount-
ing to fraud by the refiwal to execute that
agreement; in surh case the agreement will be
decreed to be Bpccifically performed. 2 Br.
Cb. Oa. 140; 1 Br. Ch. Ca. 412; 3 Atk. 4;
X Anetr. 424; Ambl. 680; 1 Seh. & Lef. 41;
14 V«
Thi
&!*■ . .
has been carried too far; but it has not,
Mievc, been overruled.
It was undoubtedly supposed in Virginia to
be the sound construction of the Statute, when
this contract was made; and u the land then
* L. ad.
lay in Virginia, Kentucky being then a part ol
that Slate, this construction forms the taw of
the contract.. In ullirining the decree of the
27lh of October, 1SI7, the Chancellor said,
"the court being of opinion that thiH is not a
case *embrace<r by the act agninst [*104
frauds anil perjuries, doth adjudge, etc." A
change of the law afterward* mode in Ken-
tucky cannot affect contracts previously valid.
ft remains to inquire whether the appellants
are to be considered as purchasers without
notice of the equity set up by the sppellees.
The defendants do not deny notice in thoM
explicit term* which court* of equity requin.
They deny notice of a valid claim, but not
suih notice as ought to put them on inquiry.
They are the joint purchasers of the two
tracts of one thousand acres each, lying south
of Tetmeeste River. They purchased these
tracts from Williams on the 6th of Januonr,
laia. The article* of that date recognize the
claim of Carrington' ■ heirs, and contain a
stipulation on the part of Williams, "to use
due diligence in having It extinguished and
quieted."
William Caldwell purchased the tract of one
thousand acres in the County of Adair on the
30th day of August, 1816. The contract of
that date contains this stipulation: "And the
said Williams agrees that the said Caldwell
»hal] not be bound to pay any farther part of
the consideration aforesaid, except what is this
day paid, until he, the said Williams, shall set-
tle tne dispute between himself and the heir*
and representatives of George Carrington de-
ceased, concerning the title to the said land."
A contract was entered into between Wll-
ims and Samuel Brents on the 31st day of
August, 1BI6, by which Brent* engages, for ft
part of the land, "to attend to the securement
of the title* to the said lands," "according to
the law* of the State, by surveying, registering,
and patenting the same, or by doing such other
acts as may be necessary for the purposes afore,
said." He says in his answer that on the IZth
of November, 1816, patent* issued to the said
John R. Williams for two tracts on Beaver
Creek, the one for three hundred and fifty
I and the other for five hundred acres.
Tbe defendant agreed to take the tract of three
hundred and fifty acres, and one hundred and
fifty acres, part of the five hundred acre tract,
for his services. Afterwards, on the 6th of
Taaitary, 1618, he contracted for the residue of
the two tracts, for which he received a convey-
ance dated on the same day. The answer pro-
ceeds, "at the time of receiving tbe said con-
veyance, or at any time 'before, this [*10ft
respondent had no knowledge or information
* any valid claim to said land by any other
rson than the said John R. William*. Thi*
.-jpondent doe* not now recollect of hearing
anything of the claim of the complainants be-
fore his conveyance; but had only heard that
some verbal or illegal ilaim was set up in some
bill filed in some count/ court of Virginia, of
h verbal claim this re)<pr>ndent did not
think himself bound to take notice."
lie does not recollect that the claimant was
named Carrington, but he does recollect hav-
ing heard that a suit was instituted in one ol
the county court* of Virginia; but as the con-
tract was by puti, ks did not think bimaelt
lOS
SDrami CouvT or Taa Unrm States.
bound to nottoa It. How be knew, or might
have known, that the suit wmi instituted in the
Oountj of Halifax, thet being the reiidence of
WilliamH, whose agent be woe, and who wbi
the defendant in the suit. Be could have
Koeived full information from Williams him-
self, who never attempted to conceal tbi
claim. Hfa convejance of the two thou-
•and acres of hie claim lying south of the
Tennessee lUver, dated the day after hia con-
reyance to Brents, eontaini a atipulation re-
specting the claim of Carrington's bein, show-
ing plainly that the elaim was previously well
known to the parties. His deed to William
Caldwell shows that it was known as early as
181S.
Iiaae Caldwell's claim Is limited to hia third
part of the two thousand acrei south of Ten-
nessee, conveyed on the 8th of January, 1819.
In addition to the notice contained in tbe deed,
he states in bis answer that he had seen tbe
proceedings in the suit brought by Carringtoo
against Williams, in which the decree of 1803
was pronounced; had consulted eminent counsel
on it, and had been advised that the title of
Williams would prevail over that set up by
Carrington. Under this advice be purchased.
The record contains other evidenoe, to which
it is thought unnecessary to refer.
In addition to these unequivocal proofs that
the appellants had received notice of the con-
tract made by Carrington with John Williams,
it is worthy of observation that with tbe ex-
ception of Brents, thoy purchased equitable
titles, and were bound to notice any prior
equity.
It is too clear for controversy that tbe plain-
tiffs placed full confidence in the protection fur-
lOB ] nished by the statute of frauds, 'and
believed that the contract made between Car-
rington and Williams, being by parol, was void,
notwithstanding Its lull execution on the part
of Carrington.
There is no error In tbe decree of the Orcuit
Court, and it ia affirmed with costs.
This cause came on to be heard on tbe tran-
script of the record from the Circuit Court
of the United States for tbe District of Ken-
tucky, and was argued by counsel; on consid-
eration whereof, it ia ordered, adjudged and
decreed by this court, that the decree of the said
Circuit Court in this cause be, and tbe same is
hereby affirmed with costs.
THE WASHINGTON, ALEXANDRIA AND
GEORGETOWN STEAM PACKET COM-
PANY.
ne orljrinal writ was lasaed act af the Clrcnlt
Coort ot ihe District of Columbia, dated 2d of De-
cember. 1831, and was returned "eiecuted" on the
flnit MoDdar ot the Miie December, the return
daj of the BueceedltiK term. The defeodsDt ap-
Eared by hit atloroey on tbe return daj, and ob.
Ined a rule on tbe plalatllTs U declare against
IS
directed the Jur^
(erdint. [or tbe hire ol ._.
action waa brouKbt. tram Ibe 20lh of Navta
1 damaxee against the de-
d or December
stltutlon
fJ'lS
to s time loni poiterlor to the
ERROR from the Circuit Court of the United
States for the District of Columbia in tbe
County of Washiogton,
On the M of December, 1831, a writ of ca-
pias ad respondendum, in case, was sued out of
the Circuit Court by the Washington. Alexan-
dria and Georgetown Steam Packet Company
against William A. Bradley, the plaint ilT in er.
ror, and on tbe return day of tbe writ, the first
Monday In December, IS^l, the defendant ap-
peared, and a rule on the plaintiffe to declare
waa entered, on tbe motion ot his attorney.
Farther proceedings in tbe case were, by con-
sent of the parties, continued until the fourth
Monday in March, 1833, when a declaration
on indebitatus assumpsit was filed; on which
it was alleged that the defendant, William A.
Bradley, was indebted to the plaintiffs on the
7th of February, 1832, in the sum of «2,766,
for the use and hire of tbe steamboat Franklin.
Tbe defendant pleaded non aeaumpsit, and the
esse was tried in November, 1B33. The jury,
under the directions of the court, gave a ver-
dict for the plaintiffs for $2,416, upon which
judgment was entered, and tbe defendant pros-
ecuted this writ of error. On the trial of the
cause, the following bill of exceptions was
tendered and sealed by the court;
"Upon the trial of this cause the plaintiffs,
to sustain the issue *on their part joined [*10B
between the parties aforesaid, gave in evidence
and read to the jury a paper dated lOth No-
vember, 1831, signed by William A. Bradley,
the said defendant, in the words and figures
following, vis.:
"I agree to hire the steamboat Franklin, un-
til tbe Sydney is placed on the route, to com-
mence to-morrow, 20th Instant, at thirty -five
dollars per day, clear of all expenses, other
than the wages of Capt. Nevitt. 19tb Nov,
1831. W. A. Bradley.
"And the paper purporting to be an accept-
ance thereof, of the same date, to wit:
"Washington City, Nov. I9tb, 1831.
"On the part of the Washington, Alexan-
dria and Georgetown Steam Packet Company,
I agree to the terms offered by William A.
Bradley, Esquire, for the use of the steamboat
Franklin, until the Sydney Is placed on the
route to Potomac Creek, which is thirty-five
dollars per day, clear of all expenses, other
than the wages of Cspt- Nevitt, which are to
be paid By our company.
"W. Gunton, President-
'Attd also a paper addressed by said defend-
■-■*-■ - the r
communicated to plaintiffs, In the words
o a pape
liey Thoi
lowing, to wit;
•Washington, Dec. S, 1891.
"Pishey Thompson, Esq.:
"Dear Sir: I will thank you to adrla« the
President and Directors of the Washington,
Alexandria and Georgetown Steam Packet
Company, that tika navigation of the Potomac
Fvttm •-
BuMCi T. Tn Waibihmoh, im., Stbui Taoot Co,
Wag dated hy Im, va hAve thii dftv c
■wirifil CMTTiug the mail by land, uniiar
wtatw UTsn^emant; and uve therefore no
lurtker oecaMon for the iteaRtUiftt Fnnklin,
wbkh U BOW in AlczudrU in diarge of Capt.
Naritt.
The batanoe dne jour company for the um
!••*] o[ the Franklin, 'under my contract
«ith Doctor OnnUm, will be paid on the prea-
<Bt«t*oa of a Inll and rec«ipt therefor.
*With m»t respect,
Your obedient Mrrant,
"W. A. BrwUey.
Tbbey Thompeon, Emj., Preaoit.
"And the rtpl; thereto from William Qun-
too, Prerident of the Steam Packet Company,
to tha dafendant, in the words following, to
witi
-Waahington aty, Dae. «, 1831.
"Sir; Tour letter of the Sth inttaut to Mr. P.
Thompaon, haa been thie afternoon eubmitted
to the Board of Dlr«ctor« of the Washington,
Alexandria and Georgetown Steam ]^ket
Company, at a meeting holden for the purpose.
After mentioning tliat the navigation of the
Potomac la closed by ioe, and that jou had
eonneneed carrying the mail by land, under
your winter arrangemtnt, you have therein sig-
nified tliat yon hava no further occasion for the
atenmboat Franlclin, and that she waa then in
Alexandria in charge of Captain Neritt. The
■ entered Into by you eontains no
3 designated, but
tnry an unconditionBl stipulation to 'hire the
Fraoklin until the Sydney is placed on tha
rootc;' and I am instructed to inform you that
tbe board cannot admit your right to terminate
the agreement on such grounds, and regard it as
being still in full force, and the boat as being in
Tonr charge.
'however disposed tba board might have been
to eonenr with you in putting an end to the
agreement, under the drenmstaacea yon have
described, if the company had not bean already
in litigation with you and your colleague, tor
tha reeoTery of a eompensation for tbe use of
the FranhUn under another contract, to the
strict letter of which a rigid adherence ta con-
taoded for on your part, notwithstanding it had
nndergona a verbal modiflcation, the board
eanM not but recollect this, and ha influenoed
tboeby. Youra respectfully,
"W. Ountm, President.
"William A. Bradley, Esq.
!!•*] *"And further prored by the testi-
mony of Wlliam Chicken, a competent wlt-
■csa, and duly sworn in the cause, that he was
employed as engineer by defendant on board
the steamboat Sydney, mentioned in the fora-
gelBg paperag that said steamboat waa in Balti-
more in the month of November, 1B3I, and
eosrtlnned there until the SAth day of January,
183S, when she left that port for WashlngtMi
€Uj, and, after aereral interruptions and delays,
arrived at Washington on the Bth of February,
and waa placed on the route to Potomac Creek
M the 7th of February, 183S; and that said
steamboat Sydney belonged to defendant, and
tt«t aba waa not llnished so aa to be able to
start from Baltimore until the £Sth of January.
And tbersnpmi, the said plaintifTs claim hire of
te said atesmboat Franklin (row tba SOth day
• It. od.
of November, IBSl, to the Sth day of February,
1732, seventy-nine days, at $3S per day, allow-
ing credit for t350 as paid thereon by the said
defendants, and leaving a balance of 32,416:
after which evidenoa had been given on the
part of plaintiff as aforesaid.
"The defendant, to support the issue on his
part above joined, offered to prove, by compe-
tent witnesses, that for several years immedi-
ately preceding the date of said contract, ha
had been, and was still, contractor for the trans-
fkortation of tha United BUtes mail from Wash-
mgtoQ to Fredericksburg i that tbe customary
route of aaid mail waa by steamboat, from
Washington to Potomac Creek, thence by land
to Fredericksburg, in which steamboat pasaen-
gara were also usually transported on said
route; that during all that time the defendant
had used a steamboat belonging to himself on
•aid route; that he alio kept an eetabtishment
of horses and stages for the transportatioD of
said mail, all the way by land from Waahington
to Fredericksburg, at seasons when the naviga-
tion of steamboats was stopped by ice; and had
been obliged, for a considerable portion of every
winter during tbe time he bad been so em-
ployed in the transportation of the mail, to use
his said stages and liorsea for tbe transportation
of the mails, all the way by land to Fredericks-
burg, in the mean time laying up his steam-
boat. That just before the date of said con-
tract the defendant's own steamboat, usually
employed aa aforesaid on said routs, had been
disabled, and tbe defendant was at the time
about completing a new steamboat, celled the
Sydney, which 'bad been built at ['111
Waahington and sent round to Baltimore for
the purpose of being fitted with her engine and
other equipments neceasarr to complete her for
running on said route; and that she lay at Bal-
timore in the bands of the workmen there, at
the date of said contract. That on the morn-
ing of the 6th of December, 1B31, the naviga-
tion between Washington and Potomac Creiek
became obstructed by ice, and the steamboat
Franklin, on her way from Potomac Creek to
Washington, while pursuing tbe said route
under said contract, waa stopped at Alexandria
by ice, where tha mail was taken out of aald
boat and sent up to Washington by land; and
that said steamboat lay at Alexandria froxen
up in the harbor, from that time till the Sth of
February, 1832; that at tbe same time tbe nav-
igation of tba Potomac became obstructed as
aforesaid, tha navigation at and from Balti-
mora became also obstructed from tbe same
cause, and the said steamboat Sydney was also
froian up in the basin at Baltimore before she
had been completely equipped with her en-
gine; that at the time she was so frozen up she
wanted nothing to complete her equipment but
the Insertion of two pipes, a part of her engine,
wUch pi pea had been made, but not then put
in place, the completing of which would not
have required more than two days, and then
tbe boat would have been in complete order for
being sent round to Waahington and put upon
said route; but the ice having interposed, it
was deemed by the workmen and those in
charge of the boat that the insertion of said
pipes ought to be postponed till tha navigation
was clear; that In January, 1B32, the said pipes
waia Inawiad, and tha aaid boat being com-
•I
SUTBEUK CoUtT or THK UlfTTID STATU.
EletelT equipped for her voyage, left Baltimore
)r Washin^on aa soon aa tlie stBte or Ihe ke
made it practicable to attempt that voyage:
waa again atopped bj the ice, and obliged ti
«ut in at Annapolis, whence abe proceeded to
''aahington as soon aa the ice left it practicable
to recommence and accomplish the vojsgo, and
arrived at Washington on the Bth of February,
1B32, and was the next day placed by defendant
I aaid route; that during the whole of the
defendant had abandoned the said route to
Potomac Creek, and prosecuted the land route
from Washington to Fredericksburg.
"That it was itnown to and underatood by
119*J plaintifTa, at the 'time that the contract
in queation was made, and waa a matter of no-
toriety, that aa Boon aa the navigation Should
be closed by fee, the United States mail from
Washington to Fredericksburg would have to
be transported all the way by land carriage, in-
stead of being transported by steamboat to Po-
tomac Creek, and thence by land to Frederictcs-
burg; and that the said steamboat Franklin
would not be required by defendant, and could
not be used under said contract when the i ' "'
gation should be so closed.
"That it was communicated to the plaintiff
by defendant or his agent before the time of
making aaid contract, that defendant intended
to keep aaid steamboat in use under said con-
tract so long aa the navigation remained open,
and no longer.
"To the admissibility of which evidence the
said plaintiff, by his counsel, objected, and the
court refused to permit the same to go to the
jury, but at the instance of plaintiffs gave the
following Instruction, viz.:
"That if the jurv shall believe, from the evi-
dence aforesaid, that the said defendant did,
on the I9th day of November, 1S3I, write to
eafd plaintiff the said paper of that date, bear-
ing his signature, and that said plaintiff did ac-
cept the same by the said paper of the same
date, and that aaid defendant and plaintiff did
respectively write to each other the papers
bearing date the 6th and Sth of Eleccmber,
1831, and that the said steamboat Sydney did
in fact first arrive in the Potomac Kiver, on
the 6th of February, 1832, and was placed on
the route to Potomac Creek, mentioned in the
said evidence, on the Ttb of February. 1832,
that than the said plaintiff is entitled to re-
cover, under said contract so proved aa afore-
said, at the rate of $36 per diem, from the said
20th of November, 1S31, to the aaid ath of Feb-
ruary, 1832, both inclusive,"
The case was argued by Ur. Jonea for the
Slaintiff in error, and by Mr. Con for the de-
rndants.
Hr. Jones, for the plaintiff fn error.
The queation whether plaintiff could recover
in this action the per diem hire of the boat, ac-
cruing after action brought, is not one of vari-
ance between the writ and declaration, nor of
any other vice either fn the writ or declaration,
111"] whereof advantage "could be taken by
Slea in abatement, or any other plea. The
ate of the contract laid in any money count,
to wholly immaterial 1 and any apeeial p1?a
tnveraing the date would be demurrable, as
tanderiog « whoUjr Immaterial iwus. The
connt may assume any date, even a day after
ita own date, or a date one hundred years be-
fore, yet lay no foundation for any plea bring-
ing the date in any manner in issue; if one
hundred years preceding the auit were aasumed,
a defendant could not demur as to a claim
prima facie barred by limitationa.
Tlie plea of non assumpsit put nothing in is-
sue but the substance of the count— a contract
or debt recoverable in this action, no matter of
what date; the date is a mere question of evi-
dence under the general issue, and that evi-
dence must show a subsisting debt at the time
of action brought, no matter when the debt ac-
crued, whether on the day laid in the count or
any other.
In this case, then, the plaintiff was let into
the broadest proof, under the general issue, of
a, cause of action substantially conforming with
that laid in his count, no matter of what date,
so the cause of action accrued and was con-
summate at the time of action brought. That
is the necessary limitation of time understood,
indiapensable, among the very element* in
every action, whether for contract or tort; a
consummate cause of action, at the time of ac-
tion brought, and there ia no way in which the
question can, in an action of assumpsit, be
regularly raised in any form of special plead-
ing. If defendant were to plead to the count
specially that the cause of action did not arise
till after action brought, it would amount to
the general issue and be demurrable; a fortiori,
if be tendered any plea going to traverse ur in
any way put in issue the date of the transac-
tion. Whether a cause of action substantially
corresponding with that hiid in the count ac-
crued before action brought, ia involved in tho
terms of the general issue.
The specific objection here is not any defect
of form or substance in either writ or declara-
tion, but n manifest error in the final instruc-
tion from the court to the jury that it waa
competent for the plaintiff, in an action of aa-
sumpsit, to recover on a cause of action acenied
after action brought. The objection goes funda-
mentally to the reach and competency of the
particular remedy.
*Mr. Coxe, for the defendanta. [*114
The point now made was not presented in
the court below; had it been, the difGcuIty
would have been removed by evidence which
would have ahown the understanding of the
parties to the suit, bolb being desirous of a de-
'sion on the merits and law of the case.
There is nothing in the exception taken tn the
Circuit Court to show when the suit was insti-
tuted, and this is only to be known by looking
at the writ, on which it is stated that it was is-
sued on the 2d of December, 1831. The deo-
iration was filed in 1833, and states this case
i it really existed; that the defendant was in-
debted to the plaintiffs on the 7th of February,
1832. If there was a valid objection to the
declaration, it should have been made In the
court below; it is now too late.
The objection is not maintainable on any
in'ounds. The declaration sets out a good oaua*
of action: the court gave the cose to the jury
on the declaration, and they pronounced a ver-
dict upon it. Now it is asked to go into Um
record, and to look at the writ and deolaratlon,
for mattera not statad in tlw exception. Be-
PMara t.
SSI
DnJLMci f , TBI URnm SrAttt.
114
tar* thta eovit, the ptftlntttT in error Is estopped
fram thii b^ hii exception. If *a ezcepL^on u
sot teken In the court below, it cannot be made
l> Ha ftppellate court, which will look at noth-
iii( bnt tjiat which w*b presented to the judges
la the Oreuit Court whose decision is brought
np bf exceptions for revision. 13 Johns. Sep.
676; 2 Bch. & Lef. 712; 1 Wendell, 416.
After pleading, advantage cannot be taken
of a Tariancc between the writ and the dectars-
*bla in ab«teiuent, it can only be after ojer.
CfaittT** Pleading!. The writ constitutes no
part of the record. The caee begins with the
dcdaration. 1 Chitty on pleading, 277, 27B, 278;
Btephens on Pleading, 68, 80; Duvall v. Craig,
2 Whefttom, 56; 4 Cond. Rep. 46; 11 Wheaton,
388.
Tlie writ should not have been introduced
into the record, it ia no part of it. 1 Cbittv,
2S&
Hr. Chief Justice HaialuU deUvercd the
opjoion of the court:
Thia ease depends on the correctness of an
lit*] instruction given 'by tlie Circuit Court
to the jury at the trial of the cause, to which
fnatmetion tlie defendant in that court excepted.
The suit was instituted by the Washington,
Alexandria and Georgetown Steamboat Com-
pany for the hire of the steamboat Franklin
during the absence of the steamboat Sydney,
tbe parties having disagreed with respect to the
time for which the contract was made. After
Um testimony was concluded, the court in-
atracted the jury that if they "shall believe,
from the evidence aforesaid, that the aaid de-
fatdant did, on the 2Bth day of November,
1831, write to tbe said plaintiff the said paper
of that date, bearing hie signature, and that the
aaid plaintifT did accept the same by the said
paper of the same date, and tliat the said de-
fendant and plaintiff did reepectively write to
boat Sydney did in fact first arrive in the Po-
ttnoac River on the Bth of February, 1832, and
was placed on the route to Potomac Creek, men-
tiotted in the said evidence, on tbe Tth of Feb-
rvary, 1832, that then the said plaintiff is en-
titled to recover, under said contract so proved
aa aforesaid, at the rale of S36 per diem, from
the aaid 20th of November, 1831, to the said
8th of February, 1832, both inclusive." The
defendant excepted to this instruction, and has
sued forth a writ of error to the judgment,
which was rendered on tbe verdict of the jury.
The original writ appears in the record, and
bears date tbe 2d day of December, 1831. It «a*
retnroed executed on the Grat Monday in De-
cember, that being the first day of the succeed-
ing term, the day to which it was made retiirn-
aUe. The following entry waa made on that
day; "And the said William A. Bradley, be-
ing called, appears in court here, by Joseph II.
Bradley, his attorney, and thereupon the said
William A. Bradley, by his said attorney, prays
that tbe plaintiffs may declare against him, the
said defendant, in the plea aforesaid; where-
npOB it ia mled by the court here that the said
pfaintUfs deelaic," etc.
Ob* objection taken by the plaintiff in error
t lb 0d.
to the In«tractlon given "bj tbe drcnlt Oourt
is, that they directed the jury to find damages
for the hire of the steamboat Franklin from
the 20th of November, 1831, to the 6th of Feb-
ruary, 1832, whereas, the suit waa instituted on
the 2d of [December, lB3i.
'The counsel for the defendant does [*Ilt
not contend that the hire of the Franklin could
bt estimated or damages given to any time
posterior to the institution of the suit, but
he insists that the writ is only intended to bring
the party into court, and unless spread on the
record by pleading, is no part of it.
Without entering into tliis inquiry, it Is to be
otwerved in the present case that the defendant
appeared in the Circuit Court in December,
1831, and gave a rale to declare. These facts
are entered on the record and must be noticed.
This court, therefore, cannot fail to perceive
that the jury was instructed to give damages to
a time long posterior to the institution of the
suit.
The iudgmpnt is reversed and the cause re-
mandea, with directions to award a venire
facias de novo.
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United States for the District of Columbia,
hoidcn in and for the County of Washington,
and was argued by counsel; on consideration
whereof, it is adjudged and ordered by this
court that the judgment of the said Urcuit
Court in this cause be, and the same is hereby
reversed, and that this cause be, and the same
is hereby remonded to the said Cireuit Court,
with directions to award k venire fadaa de
THE XJNTTED STATES.
Jurisdiction of District Court as to claimants of
land in Missouri— treaty ceding Louisiana-
property rights.
Mlssocrl. A claim was msd« br C. n. D^hr a
KtlUoD flted la tbe District Court of (hi! Onf(e4
■tes tor tbe District of Mlswmr "
of C -
clslmi
t -^Mh Mat, 181.'4. "eDSblinE tbe
iCli wltbla tbe llinllB at tbe Slate ot
proceed Inp
Tbe tract ot Jsnd claimed wu
wiB granted to tbe (ntber ot tbe pftltlnner bj Don
ZesoD Tnjdesu. Lieu i en ont -Govern or ot llie Prov-
Ince of Upper LoalBlana. on a petition addressed
to him Cor that object, tbe decree for tbat purpose
being dated lat April. IT9B. Tbe Isad wss •!' ' '
of a
t the n
0 in
Nora.^Domlnlon acquired b; a soveivl^ over
■n Inhabited eountry aoea not devest tbe vested
rlffhts ot IndlvlduBlR to property.
While tbe Inhsbltaats of ■ conqii
ebsDge thetr
qiiered cosnuy
llT
SimxHi Cou«T or the Uhitd SrATxa.
CsciiBwnti la nipport of tb* eoncvMlon aecom-
Ented tbe petition, and aininii Ibem > lettrr from
e BiroD de Caroadclet, (ioveruor-Ueneral el
IjOulalana, rtcomiucadlug tbe firaiit to ln' made bf
the LieateDant-Uaiernor Trudcau, and ■tallng tbat
tb« Object of tbe petitioner vt,t to open lead mlneti.
■nd tbat h« had conlncted vlth the InteDdincf
to dellrer a qnaiilltr of Imd. After tbe eoneeaalon
■hoald be made bj the IlL-uteDant-goTeniDr, tbe
■niDlee waa to preaent a memorial to the BaTernor-
noeral to have a decree coaflrmlnE the ume. Tbe
District Court of Ulasourl retuwd to eonnrm tbe
■nut, and tbe petitioner appealed to thia court.
The Brant waa couBrmed and tbe decree of the
OlBtrTct Coort reversed,
'iOe Act of 2Gtb Uuy, 1824, t^vet the DUtrlct
Court authorit; to hear and delermloe all queg-
tloua arlaing In taj csube broiighl before It bj Ibe
petition of anj persoD delmlQE landa within tbe
aute of MlasDui'l. -by virtue of anr Fremb or
Spanlah (rant. eoDi^pHnlaD. warrant or older of
anrrej, legalij msde or Issued before the JOtti dav
of March. 1804, by tbe proper ButborllleB. to aoy
Kiaon or twraODs realdent la tbe Province of Loula-
la at the date thereof, and which nas protected
and iecured bj tbe treaty between tbe United
Stale* and France or tbe 30Ch of April. 1803, and
which might have been perfected Into a complete
title. 'undrr aod Id conformity to the laws and
□■agffl nod cuatoma of tbe government under which
the aume originated, bad not the ■overelgnly of tbe
country t>een tranaf erred to tbe United Statea."
Tbe Mlpalatlona of the treaty ceding Ijoulslana
to the United ataCea, affording tbat protection or
security to clatma under tbe French or Spanlab
Eovemment to wblcb Che act of Congren lefera,
an In the Aral, second and third articles. They
extended to all property until Louisiana became a
meinWr of tbe [inlau, Into wblcb tbe Inbabltsots
were (o b* IncorTiornli'd hb soon ss posslblp. "and
■dmllled to all the rlghta, advautages and Immunl-
llU'l ties 'of clllieus ot the United SUtea." Tbe
perfect In viola blUty and aecurlty of property i*
among these rights.
Tbe rlgbt of property Is protected and secured
by the treaty, and no prlndple Is better utiled in
this eountrythan that an Inchoate title to laudi la
Sroperty. The right would have been sacred, la-
ependent ot tbe treaty. Tbe sovciclEt) who ac.
qulrea an Inhabited country, acquires full dominion
oyer tt; but this dominion Is never supposed to
devest the vested rights of Individuals to property.
Tbe language of Ibe treaty cedlne l.oulsiuna ei-
clQde* any Idea of Interfering with private prop-
The conccsalon to the petitioner waa legally made
br the proper antborlClea.
A grant or concession made by tbat olScer who
la by law autborlEed to make it, carries with It
prima fade evidence tbnt It is witbln bla powers.
No eiCPBB of them, or d^parlure From them, Is to be
&'™^nBlble*for''lt* ^He tho allegea'ilial'an'oIB'cer
Intrusted with an Important duty has vlD)ated his
Instructions, must ahow It.
Tha casps of The United l^lalea v. Arredondo, G
Peters, 801: Pprcheraari v. Tbe Dnlted States. T
Peters. Gl : The United Stales V. Clarke. B Peters,
188, dted and approved.
The Instructions of Goreraor O'Reilly relative to
granting lands In Louisiana, were considered bv
by him Is as
dV Governor
The act ot Congreaa od wtlch this case depends
— ' '"" '■ eileods
"by vir-
tbe Jurisdiction of Ibe court lo all c
tue of iny I'rench or Spanish gr«_.,
warrant, or order ot •uney Isgally BUde by th«
proper autborUlea."
ON appul from the Mstriet Oourt of tho
United States for the Miasouri District.
On the 18th of May, 1829, Charlea Ueliault
DelasSLii, legml representative of Pedro Deiiault
Uelasaus, under the authorit; of the Act of Con-
gresB entitled "An Act enabling the claimnntt
to lands with the limits oF the SUte of Mit-
Bouri And the Territory of the Arksness to in-
alitute proceedings to try the validity of their
claims," Hied in the office of the clerk of the
District Court of the United States for the Di«.
trict of Missouri, (lie following petition:
"To the honorable tlie judge of the Diati'ict
Court of the United States for the SUta of
Missouri.
"Respectfully showetb Charlea Drhault De-
la saus, of the County of St. Louis, State of
Miasouri, thht on the 3d da; of March, 1795,
Don Pedro Dehault Delasaua De Lnsierua
•the father of your petitioner, ailiireasod ( * 11 B
hia petition to Don Zenon Trudeaii. Lieute^iant-
Govemor of the Province of Uppi-r Louiaiuna,
praying thkt k concession or grktit should Im
made to him and bis heirs of a tract of land
containing seven thousand and Rfty-six arpenta,
French measure, being a league square. That
said lieutenant-governor, in compliance with
said petition, and in obedience to an official
instnictiOR addressed to him by the Governor-
General of the Province of Louialans, tli*
Baron of Carondelet did, by decree bearing
date the 1st day of April, 1795, aforesaid, grant
to said De Luzieres, and his heirs forever, a tract
of a square league aihinted on a branch of the
River St. Francis, railed Gaboury, and by said
decree ordered Franenis VallS, the Captain -
Com mend ant of the post of St. Genevieve, to
put the De Lunieres forthwith into ponsession
nf said tract, and aUo directed that Baid tract
should be surveyed in due form by the sur-
veyor, then about to be appointed for the
Province of Upper Louisiana. That on the
16th day of April, in the year aforesaid, the
said De Luiieres was formally put into posses-
sion of said square league by said Francoia
Vall«, in pursuance of aald decree- That some
time elapsed from the said delivery of posses-
sion until the appointment of a surveyor for
said province of Upper Louisiana, and by wfaicb
delay, and other uoavoidable difliculties, the
naid De Lueieres was prevented from obtain-
ing a survey of the aaid tract until the 14th day
of December, 1709, on which day the surveyor-
general of Upper Louisiana. Don Antoine Soul-
«rd, in pursuance of an order to him specially
T Pet. 81: MICcbcM
SIrother V. Lqcsb, 12 Pet 410. 4.18.
The lawa, usnges and municipal regulatlona In
force at the time ot tbe conquest or cession, re-
main In force until changed by tbe new sovprelgn.
The conqueror may deal with tbe Inbabilitnla,
and give tbem whs! law be pleases, unless re-
strained by Ibe capitulation, but until an alteration
be nude, Ibe former laws continue. Calvin's case,
T Co. IT: Campbell v. Hall. Cowp. SOB; Hitcbfl v.
The United Slates, poaL 711. 7M. T48, 740; 8tr«- .
ther v> Lucao. IS Pet. 410 ; Canal Appralaers r. llM
Fend. D8T, D«r Walworth, cbaDcallor-
Ired by conquest over the territory con-
ward. 2 Gall, 488;
"ffl
an oncer who Is by law autbor-
- rith It prima fade evl-
«wer. V m- ■ ~
r. Pori^eman, T I'et eI.
aod note to Daltad
Deuhub t. Tbi Unmo Statbi.
1»
dIrKtod bj the llmtewut-govsmor of Mkid
fivrlnM, •urvejcd aajd tract uid located the
•unB Bccordfng to the termi of the kbove
BentiCHied decree of eonccaeion, kad the poe«e3-
■ioB delirered u ftforeuud to uid De Luzierea,
•II which will more fully appear bj laid oriS'
inml decree of the lieatenant -governor, uJd olfi-
ami inatruetion of ikid gOTemor-generaJ, the
eertiSote of delivery of poaieMioo by said
FrwKtna Valli, the said order of surTey by the
Beutoiajit- governor; and lastly, by the offlciftl
tetura ftud certiOcate of eurvey by tue lurveyor-
Keaeral, which certificate bears date tiie Sth
day of March, 1800, and which origioal docu*
■nenta are here brought into court, and ready
to be produced and proved, and to which your
Ktitioner begs leave to refer. That eaid De
fierts, at tbe date of said decree of concea-
ISB*] sion, and until his decease, 'was a resi-
dent of the province of Upper Louisiana. Your
petitioner further showeth that said coneea-
■Joa and claim tliereuuder having been aub-
mitted to the board of commisiioners for the
adjustment of Spanish and French land claiina,
waa rejected on the ground that the land in-
tended in the said concession Eontained a lead
mine, and on no other. That said tract of a
league square has been reserved from sale En
the public land-office until a decision shall be
had thereon by the proper tribunal, and that
•aid tract, aa laid dovrn on the general jdat in
the office of the register, is situated and bounded
aa follows viz., beginning in tbe south-east
fjuartcr of section number twenty-flve, town-
ship number thirty-five, north, of range number
five, east, at a post, a comer of John Cape-
hart's eurvey, and runs thence south eight
west with (^pehart's line, Ave chains eighty-
three links to Capehart's and D. Murphey's
comer; sixty -four chains sixteen links to
O. and S. ilurphey'a comer i one hundred
and seven chains ninety-one links to S. Mur-
pbey and Coen't coruer; one hundred and
thirty-seveii chains and forty-one links to Coen
and W. Uurphey's comer; two hundred and
live chains and thirty-two Untcs to the south-
west comer of W. Uurphey's survey ; two hun-
dred and forty-five cluiins to a point in the
■orth-west quarter of section number thirteen,
in township number thirty-flve, north, of range
number five, east; thence north eighty-two,
west two hundred and forty-five chains to a
point in the south-west quarter of section num-
ber nine, in township number thirty-five, north,
of range number five, east; thence north eight,
cast two hundred and forty-five chains, to a
point in the south-east quarter of section num-
lier twenty-eight, in township number thirty-
•iz, north, of range number five, east; thence
south eighty-two east one hundred and sixty-
three chains ninety-eight links to the south-west
eonier of Joseph Murphey's; seventy-two hun-
dred and thirteen chains and forty-five links to
Joaeph Murphey's south-east comer, on the west
boniKlary of John Capehart's survey; thence
thirty-eight west, with Capehart's survey, one
chain and thirty-two links to his south-west
comer; thence south eighty-two east, with Cape-
hart's line, thirty-one chains and fifty links, to
the place of beginning. Your petitioner further
abowetb, that said league square, and alt claim
and title thereto since tbe decease of said De
131*] lAiiares, who 'departed this life some
years since, has been legnlly vested In your
petitioner, and that no pMt of said tract it oc-
cupied or claimed by any person or persons
adverse to the claim or title of your petitioner.
Wherefore your petitioner prays tliat tbe valid-
ity of said concession and claim to confirmation
of aaid tract may be inquired into, and decided
upon by this honorable court, and tlial inas-
much as said concession and survey might have
been perfected into a complete title under and
in conformity to the laws, usages and customs
of the government under which tbe same orig-
inated had not tbe sovereignty of the country
been changea or transferred to tbe United States,
S'ur petitioner prays that his title and claim
confirmed to said league square, located and
bounded as aforesaid. And your petitioner prays
that a citation be directed to the district attorney
of the United States, requiring him to appear
and show cause, if any he can, why the con-
firmation prayed for by your petitioner should
not lie decreed to him. And your petitioner
will ever pray, ete-
"Charles Debault Delassus."
The answer of the attorney of the United
States was filed at the June session, 1B29, of the
District Court; deniea the allegations of ths
petitioner, and requires proof of the same.
At the January aession of the court in 1630,
the district judge made a decree against the
claim set forth in the petition; and tnie appeal
was prosecuted by the petitioner.
The documents annexed to the petition were
the following:
"To Don Zenon Trudeau, Ueutenant-Gov-
emor of the western part of Illinois, etc.
"Pierre Charles Dehault, Knight, Lord of
Delassus Luzieres, and itnight of the Qreat
Cross of the Royal Order of St. Michael, re-
siding in New BourlMn, dependency of the
post of St. Genevieve, has the honor to repre-
sent that when he was at the city of New Or-
leans, in May, 17S3, he resolved to come up in
the Illinois country, on the positive assurance
S'ven hiffl by his lordship, the Baron deCaronde-
t, Qovernor- General of Ijouisinna, that be
would order and authorise you to grant him •
tract of land for the exclusive exploration of
lead minea, and of a sufficient and convenient
extent for said exploration, provided *it ['133
should not be formerly granted to another;
which warranty and sssurances of the govern-
ment are to be found formally expressed in a let-
ter here subjoined and directed to your petitioner
by the said baron, under the date of May 8tb,
1793, and which your have been pleatsd to as-
sure me was exactly conformable to the official
letter yon received on that subject hom the
governor -general. The long and cruel disease
which your petitioner eipericnccd on his ar-
rival in Illinois, in August, 1793, the hostile
threats of an invasion on the part of the French
agaiiiHt the country some short time after, the
orders you gave to the inhabitants not to go to
any distance from their post, and the care and
trouble, which to your knowledge, I have taken
in that time to countenance the wise and effi-
cacious means you hovp Inken so successfully in
putting the pusts of IliiTiuis in a state of de-
fense in case of an uttfitk, of which care, en-
deavor and seal on my part. His Lordship Luia
de la Casas, Captain -General of Havana, bein^
IS
in
SuPBEMi Coun or tbx UMmo Btaus.
Informed, I received from him ■ letter, bearing
diite May 20th, 17M, by which he gives me
tbe moBt honorable evidence of bis satis faction,
M appears by copy of said letter here subjoined.
Thai the occurrence of several circumBtances
hindered your petitioner to make a search of a
tract of land containing lead mineral; he now,
with the assistance of his children and son-in-
law, and persons acquainted with the country,
visited a place situated on one of the branches
of the river St. Francois, called Gaboury, in
the District of St. Genevieve, and about twelve
leagues from this post, which ha* not been yet
granted, makes party of the king's domain, and
where it is aacerlained some mineral had been
kncientty dug, besides the external and internal
appearance, according to the mineralogical prin-
ciples, Indicates that tne spot contains lead min-
eral; therefore your petitioner haa resolved to
try in that place a general exploration of lead
mine. He is so much induced to prosecute
such an undertaking that he expects the arrival
of his eldest son, now emigrated to Germany,
who is well learned in mineralogy, having
studied it particularly, and having been en-
gaged in a similar branch in Europe with your
petitioner, and will be very useful in explor-
ing and conducting the one now solicited.
Your petitioner Hatters bimself that you will
not refuse to give this concession the extent of
a league square, in order to secure the neces-
ISS*] sary fuel for the melting of 'the mineral
and other necessaries; under these considera-
tions your petitioner humbly prays you, sir,
that in conformity to the intentions of the gov-
ernment manifested in the subjoined letters, of
which you have been uoLiRed by the governor-
general himself, you have been pleased to giant
for himself, his heirs and assigns in full prop-
erty, the concession of a league square of land
situated on said branch of Kiver St- Francois,
called Gaboury, in the District of St. Genevieve,
with the exclusive right to explore the lead
minea in the same, to cultivate and raise cattle
on the said land if necessary; in so doing your
petitioner will ever pray, etc.
"Detasaus De Luzierea.
'Vew Bourbon, March 3d, 17BS.
"St. Genevieve, Tlinois, )
March 10th, 1795. J
"We, the commandant of said post, do in-
form the lieutenant-governor that the conces-
non demanded in the within petition is part of
the kinj^s domain, and has not been granted to
anybody, and that its extent fixed to a league
aquare, is indispensnble and necessary to secure
the timber for melting of mineral and other
necessary supply. Francois Valle.
•^O Zenon Trudeau;
"The Knight Don Pierre Dehault Delassus,
has entered into contract with this inteiidancy
to deliver yearly, during the term of Ave years,
thirty thousand pounds of lead in balls or bars.
In order that he may comply with his contract,
your worship will put him in possession of the
land he may solicit, for the exploration, benefit
and enjoyment of the minea; for which pur-
pose he is to present a memorial directed tome,
and which ^our worship will transmit, that I
may give him the corresponding decree of con-
cassion, being undentood, in the mean time,
f4
preserve you
•'hi Baron' de Carondelet.
"New Orleans, May Tth, 1793.
"To Mr. Dehault Delassus:
"I send you back the primitive titles of tha
concession granted 'Mr. I'rancoia ValM, [*124
of St. Genevieve, who transferred to Mr. Dodga
one moiety of which; this laat ceded to 1&.
Tardiveau, who made a gift of it to your
brother, with the approbation and advice yon
desired. By this opportunity I write to Mr,
Zenon Trudeau to grant you the land where
you will have made a discovery of lead mines,
with adjacent lands of sufficient extent for their
exploration; provided, nevertheleaa, that it
should not be conceded to another.
"Your son-in-law and your aons shall have
also, aa you desire, a plantation in any place
they will select in Illinois, of an extent propor-
tionate to the establishment utd improvement
they propose to make.
"This is my answer to your letter Mo. &
Ood have you in his holy keeping.
"El BgLTon de Carondelet.
"New Orleans, May Btb, 1703.
"Sir Don Peter Dehault Delaasus deLuzieres.
"The Baron de Carondelet, Governor -Gen-
eral of this province, has manifested to me in
bis letter of the 27th of February last, the zwi
and activity with which your worship (although
laboring under a weak state of health) baa
manifested in exciting the inhabitants and Indi-
ans to join in the common defense of those set-
tlements, and more particularly tbe post undei
your command. I do hope that your woraliip
will continue with the same edicaciousness in
similar circumstances, and give me an oppor-
tunity to reward your worship. God preaem
your worship nuuiy years.
"Luis de la Caaaa.
"Havannah, May 20th, 17M.
"St. Louis, Illinois, April 1st, 1T»6.
"Decree. Having read the present petition,
the subjoined of the Baron de Carondelet, di-
rected to tbe petitioner, under the date of May,
1703, also the official letter to us directed by
said governor -general, authorizing, and giving
ua order to grant the petitioner a concession in
the spot selected by him, and of a sufficient
extent to explore exclusively the lead mines in
the same; (USO the above information of the
commandant of St. Genevieve, by which he
teatiHes that the land petitioned for is *iD[*lBB
the king's domain, and that it Is indispensable
that the quantity should be a league square;
we, tbe lieutenant-governor, in conformity with
said orders and intentions of the government,
have granted, and do grant unto the petitioner,
and to his heirs and assigns, in fee, the eoncea-
sion demanded, situate on a branch of the Riv-
er St. Francois called the Gaboury, in the place
selected by him, the extent of which shsll be ■
league square, to the end that he may explore
exclusively the lead mines belonging to the
same, and, if necessary, to cultivate and raise
cattle, hereby commanding Don Francois Val-
Ifl, Captain and Commandant of St. Genrvieve,
vey of which will be done as soon as a surveyor
Delubus t. Tub United Statu.
Ul
will ba ap|Krint«d And commiiGioned (or the
Upper Loiuaima. Zeaon Trudesu.
"St. Genevieve, Uliaoii, 1
April 16th, 1785. J
"Vt, Dob Fruicoia Vail«, Captain- Com-
■■11 lie lit, civil and military, of the poat of St
Gesavieve, in compliance with the foregoing
decree of Don Zenon Tnideau, Lieutenant-
Governor of the western part of niinoia, bear-
iiig date the lat instant, have this daj, tlie IQth
of the aame month, put the Knisht Peter
Dclanut Oe Luzierea in poHesaion u{ a league
■quare of land, situated on a branch of the
Rtver St. Francois, called Gabourj, as granted
to him by the aforesaid decree, conformably to
orden. Bod with the approbation of his lord-
rhip, the governor-general ol thia province.
The aaid eoncesaion, in future, to be regularly
■nrveyed by the Icing's surveyor, who ia soon
to be named and appointed for this upper
eolonj. Francois VallS.
"To Don Charlea Dehault Delaaaus, Colonel
of the Royal Armies, and lieutenant -Oovernor
of Upper Louisiana.
"Humbly petition Peter CAarles Dehault
Delaaana De Luderes, Knight, etc., residing In
New Bourbon, and has the honor to represent
thkt, in conformity to orders of the govern-
or ii this province, your predecesaor, Don
Zaton Trudeau, did grant to your petitioner a
eoBceaaion of a league square of Jand, altuate
lis*] *on a branch of the River St. Francois,
csUed Qaboury, with the eicluaive right to ex-
^ora the lead mines on the same, aa appear* by
Ua decree bearing date April lat, 17B5, of
wUch coneeaaion and land your petitioner waa
pot in posaesaion by Don Francois Vslle, Gap-
t*in -Commandant of the poat of St. Genevieve,
in wboM district and land is aitnated, as appears
l^ his act bearing date the 16th day of April
of said fear; and whereaa it la mentioned in
aaid decree of Don Zenon Trudeau that said
cone— aion will be regularly aurveyed by the
aorrejor who has to be appointed by the gov-
enuient for Upper Louisiana; and whereas
Dob Antoine Soulard has been commissioned
and appointed as such surveyor; therefore,
WMler toese considerations, your petitioner re-
fDceta yon, sir, that after mature consideration
M the instruments here submitted relating to
aald conceation, you be pleased to give the
■ccesaan orders to Don Antoine Soulard, sur-
Sror of Upper Louisiana, to proceed without
tj to the regular survey of aaid concession
of a league square, on the aaid branch of the
RiTer Bt. Francois, called Gaboury, to explore
ezelaaively to any other, the land, etc., and of
wlikb land he has already been put in pos-
•(■■{on by the commandant of St. Genevieve,
sad baa already begun the exploration ; he
hopca to obtain his demand, inasmuch as he
did not hurry the surveyor, in order to give
Ub the necesaary time to attend to the survey-
ing of concessions belonging to other inhab-
itanta, who wished to have their surveys
atdcUy executed. In so doing, you will do
fusttee. Pierre Delassua De Lucierea.
-New Bourbon, November 2Cth, 1TS9.
"By virtue of the content* of the above me-
Morial and the accompanying documents, and
klao from what it appears by the official tetter
of tha Baron de Cslrondelet, late governor of
• I<. ed.
these provinces, bearing date the 7th and Btb of
May, 1893, on file iu these archives.
"The surveyor, Don Antoine Boulard, vrill
survey the Ifsgue square of land which was
granted to the party interested by the decree of
my predecessor, the Ueutenant' Governor, Don
Zenon Trudeau, dated Ist April, 1704, con-
formably to orders of his lordship, the govern-
or; and of which land he has been put in
possession, as appears by decree of Francois
Valte, Commandant *of St. Genevieve, ['133
bearing date April IGtb of the year last men-
tioned, to be heieafter surveyed by the survey-
or of this Upper Louisiana, when appointed and
commissioned.
"Charles Dehault Delasaua.
"SL Louis, November 2&th, 1700."
On the 6th of starch, 1800, Anthony Soulard,
principal deputy-aurveyor of Upper Louiaiana,
certiHed that on the 14th of December, ITtW,
he made a survey and return of the land
claimed by the petitioner. In virtue of the de-
cree of the 2tlth of November, 1TB9.
The case was argued by Mr. White for the
Kpellant, and by the Attorney -General for the
lited States.
Ur. White, for the appellants, contended)
1. That the grant to Don Pedro Dehault De
Luderes was a valid Spanish coneeaaion, made
in obedience to the orders of the superior
officers of the crown of Spain, and in conform-
ity with the laws of Spain.
2. That it is a claim protected by the treaty
tnd entitled to contlmtation under the treaty
and laws of the United States.^
Mr. Bntler, Attorney- General. The object of
the argument on the part of the United State*
hia case will be rather to lay before the
t auch viewa of the nature and extent of
the title set up in the cases which are before
the court, by appeal from the District of
Missouri, OS are applicable to all these case*;
than to resiat the preaent caae, which appears
to be founded on equity, and in which, unless
the documents are not genuine, or the court
shall be compelled by some alrict rule of law,
the court will reverse the decree of the District
Court.
The documents in the case show great merit
. the claimant, who, in conaideratian of this
merit, and of a contract to 'furnish a 1*1 SB
certain quantity of lead to the Governor of
Louiaiana, waa recommended to the apeclal
favor of the lieutenant-governor. This is
n by the letter of the Baron De Caron-
delet.
The court will observe that as to all action
the cnae by the governor -gi-neral, the title of
the claimants atopa at these lettirs. There la
ahown any application to the govemor-
:ral far a complete grant. The deciaion of
the district judge was that no complete grant
exhibited, and that the claim rested on an
>Bte and imperfect title.
to the first point presented by the counsel
for the Bppel'ant, it is necessary to explain
what is intended by the United States, when it
denied that the lieiilcnar
1)T the reporter, vbrn the case wis put to prsi
It will be iiiiK-rtrd Iu llir Aih"'d<1 i. should ll In i
celved before the put>lli:atloD ot this volume.
It iB
« of Upper
IZB
SUPBEUI COL'BT or I
L had B right to grant land in Upper
r>ouiBianft. Although the commanilant of St.
Louis and St. Genevieve might nut have bufii
•ubordinate in oth^r mattera. yet he was, in
reference to the grant of lands, aubordiiiate to
the Governor'General of Ixiuisiana, and in
iome respects subordinate to tbe Governor-
GenenU of Havana.
The supreme authority of the governor-gen-
eral is full; established by the documents in
this and the other cases before this court, on
appeal from the District Court of Missouri.
Tbe lieutenant-governors could not grant lands
without special authority from the governor-
general. An express reference is made in tbe
grant of Don Zenon Trudeau, to the authority
given to him by the letter of the Baron de
Carondelet. That letter states that ft memorisi
is to be presented by Mr. Delassus to the liaron
de Carondelet, that a corresponding concession
may be given to him. This clearly asserts the
power to be in the govern or - ge neral ; although
it allows possession to be given of the lands for
a concession, and negatives the authority of
the lieutenant-governor to make a full grant.
Tbe record in other esses, the examination
of which will follow this now under considera-
tion, will show the general understanding and
Eractice of the olficers of Spain in granting
inds, and fully sustain the poattiona now aa-
In 1798, the power to grant lands waa traas-
ferred from the Governor -General of Louisiana
199*] to the intendnat. After the 'transfer,
the lieutenant •Governor of Upper Louisiana
acknowledged this transfer, and the obligation
to apply to the intendant for the completion of
grants, in the same manner as waa before re-
quired to apply to the govern or -general. This
ia fully eatabiiahed by the records in other cases
before the court, and hy repeated recognitions
shown in State papers.
As to the second point presented by the
counsel for tlm appellant, that there was a
complete grant made to the appellant, it is not
intended to deny that if auch a grant had been
made, it was the duty of the court below and
of thia court to confirm the title. All tbe prin-
ciples which have been decided in the cases of
Spanish grauts which have been before thia
court, are not to be questioned. These decisions
are sustained as well by the principles of interna
tional law as by the treaty. It has been finally
settled that a claim for lands, founded on and
conformable to the laws of Spain, if of such a
Hiaracter as that by th« laws of Spain it would
have ripened into a perfect title, will be con-
firmed by this court.
What is the real question in the caae now
under the consideration of the court!
Certain regulations were made in 1770 by Don
O'Reilly, which were intended to govern thi'
granting of lands in all Louisiana; and these
regulations were confirmed by a royal order of
the King of Spain. White's Land I..aws, 204;
Clarke's Land Laws, 97a. Thia confirmation
waa given on the 28th of .lanuary, 1771.
Documents relative to Louisiana and Florida, 3.
It will therefore be no longer disputed that
In the whole of Louisiana, these regulations
were in full force and spplic'able to the grant-
ing of lands until they were altered.
The difficulty in this case grows out of tht
at bTATBS. 183-'.
discrepancy of the grant and tbe regiilations of
U'Keilly. The point intended now to be sub-
mi. led is, whellier the Lieutenant- Hovernor of
Illinois could make a larger grant Ihun a li^ague
squaie. The grant does not conform to these
regulations, and as they were in force, the
grant would not have been conlirmed under tlie
laws of the Indies, and was therefore void aa
against the United States.
It is said that the govern ore -general of Louisi-
ana bod been in the habit of conRnning grants
which were not in confurraity 'with ("130
these regulations. This is admitted. \Vh5n
this case was decided by the di^Lrict judge of
Missouri, the cases of Arrendondo and of I'erche-
man bad not been decided; and it was not,
until the deciciona in these cases, considered
that an equitable title was sulCcient to entitle a
cJaimant to a confirmation of his grant. The
proceedings below were founded on the law of
Congress of 1824. 7 Laws U. S. 300; Clarke's
Land Laws, 87L The district judge decided
in the language of the taw; and it is contended
that although an inchoate grant ia shown in this
tiona of O'Reilly, he could not do otherwiiic.
It is admitted that although this grant doea
not conform to these regulations, yet grants of
thia kind have been conGrmed hy the Spanish
authorities; and if tbis is a case within the same
principles, this grant must be confirmed. But
if the court hold the regulations of O'Keilly
were the only authority to make auch a grant
it will affirm the decree of the diatrict judge.
The act of Congress gave power to the com-
misaioncra to confirm grants, except those hav-
ing lead mines upon them. But the claim now
before the court is under the treaty with France,
making a cession of Louisiana ; and the court
will decide whether the exception in the taw
can prevail against the treaty. The principal
reliance of the United States to auatain tlie de-
cree of the court below, is upon the non-con-
formity of the grant with the regulations of
Don O'Reilly.
Mr. Chief Justice Marshall delivered the
opinion of the court:
This is an appeal from the decree pronounced
by the court of the United States for the Dis-
trict of Missouri, by which the claim and title
It
lleged to be authorized by the
lawa of Spain, and protected by the treaties
ceding Louisiana to the United States, wai
declared to be invalid.
The suit was instituted under the Act of the
25th of May, 1824, "enabling the claimants to
lands within the limits of tbe State of Missouri
and Territory of Arkansas, to institute pro-
ceedings to try the validity of their claims,"
■The petition, which is the institu- flSI
tion of the suit, states that on the 3d of March,
17B5, Don Pedro Deliault Delassua De Luz-
ieres, the father of tha petitioner, addressed hit
petition to Don Zenon Trudeau, Lieutenant-
Governor of the Province of Upper Louisiana,
praying that a concession or grant should be
made to him and his heirs of a tract of land
containing seven thousand and fifty -six ar-
pentB, French measure, being a league square.
That Mid lieutenant-governor in complianee
Petora 9.
On-MBua T. Tu Unitco States.
ISl
^th Mid peUtloB, and In obedience to an of-
Mai iiutnictian addrcMed to him b7 the Gdt-
Cfaor-Goneral of the Proviaoe of Louiaisna,
th« B&ron de C^rondelet did, by decree bear-
ing date the Ut ol April, in the ^ear 1796,
gr«nt to uid De Liuieres and hia heiri forever,
a tract of a aquare league aituated on a branch
«f the RJTer St. Francoii, called Gaboury, and
bj Mid decree ordered FrancoU ValU, the Cap-
tMB-Commandant of the post of St. Genevieve,
to put Da LuEJerea forthwith in potBeBiioi) of
tbe nid tract of land, which waa done on the
ISth of the aame month. A delay in the ap-
pointment of a surveyor (or the province pre-
vented the aurvey from being immediately
Bade. It waa made on the 14th of December,
17H. The petitioner proceeds to state that
tlM reqnieitei of the laws for tbe preaervation
«f hia right had been observed, that his father
fa dead, and the title is vested in the petiti —
er. Be prayi that hia title and claim be c
finned.
The answer of the district attorney profei
The petition of Pierre Charle* Dehault Da-
lassua De Luxieree presented to Don Zeaao
Trudeau, lie uteoant- Governor of the western
part of Dlinoia, etc, states that in May, 1793,
he naolved to come to Dlinoia on the assurance
of hia lordship, the Baroo de Carondelet,
Governor -Genera! of Louisiana, that he would
order and authorize him, the said Don Zenon
Trudeau, the Lieutenant-Governor, etc., to
Knt him, the petitioner, a tract of land for
exclusive exploration of lead mines, etc.,
which assurance is fully expressed in a letter
annexed to the petition, which, he adds, con-
forms to a letter addressed to the Lieutenant-
Goremor on the same aubject. The petition
then ascribes the delay in its presentation to
long and severe illness, and to the difficulty of
finding a tract of land adapted to the
133*] 'object. This being at length accom-
plished, and having found a s^t indicating
that it containa lead mineral on one of the
branches of the River St. Francois, called Ga-
boury, the petitioner prays a concession there-
of to the extent of a league square.
The letUr of the Baron de Carondelet is In
these words:
"Ta Zenon Trudeau.
"The knight Don Pierre Dehault Delassua
k*s entered into contract with this intendancy
to Jplivcr yearly during the term of five yeara,
thirty thousand pounds of lead, in balls or
bars. In order that he may comply with his
contract, your worship will put him in pos-
session of the land he may solicit, for the ex-
tloration, beneGt and enjoyment of the mines;
tr which purpose he is to present a memorial
directed to me, and which your worship will
transmit, that I may give him the correapond-
ing decree of concession; being understood in
tbe mean time your worship will put him in
pMaession. God preserve your worship many i
fmn. El Baron de Carondelet. I
"New Orleans, May 7th, 1793 '■ I
Other letters from the Baron de Carondelet, I
aaslaining that above redted, were annexed to |
(liis petition: and on the Ist of April, 1795,;
Zenon TrndMii, Um lieutenant- Qoveraor id
the province, granted the required concession.
The regular doruments to prove the survey,
and the posscsaian of the preniige>i li; Dclsssus,
were also laid before the Diatrict Court.
The Act of the 261h of May, IB24, gives the
District Court authority to bear and determine
all questions arising in any cause brought be-
fore it by the petition of any person claiming
lands within the Stnte of Missouri, "by virtue
of any French or Spanish grant, concession,
warrant, or order of survey lojra'ly made,
granted, or issued, before the 10 th dny of
March, 1804, by the proper authnritics. to any
person or persona reaidi'ut in the province of
Loulaiana at the date thereof, or on or before
the loth day ol March, IBDl, and which waa
protected or secured by the treaty between the
United States of America and the French Re-
public, of the 30th day of April, 1803, and
which might have been perfected into a com-
plete title, under, and in 'conformity [*13S
to the laws, usages, and customs of tbe gov-
ernment under which the same originated, had
not the sovereignty of the country been trans-
ferred to the TTnited States."
In the first article of tbe treaty referred to,
tbe Counsel of the French Republic ceded to
the United States, in full sovereignty, the
Province of Louisiana, witli all its rights and
appurtenances. The second article declares
that In this cession "are iiicluded the adja-
cent islands belonging to Louisiana, all public
lots and squares, vacant lands, and all publia
buildings, fortifications, barracks and other
edifices, which are not private property." The
third article stipulates, "that the inhabitaats
of the ceded territory shall be incorporated io
the Union of the United States, and admitted
aa soon as possible, according to the principles
of the federal Constitution, to tbe enjoyment
ill the rights, advantages and immunities
of citizena of the United Slates; and in the
meantime they shall be maintained and pro-
tected in the free enjoyment of their liberty,
property, and the religion which thpy profess."
These are the stipulations which atTord that
Srotection or security to claims to land un-
er the French or Spanish government to which
the act of Congress refers. They extend to
Kiperty until Ix>uiaiana shall become a
r of the Union, into which the inhabit-
ants are to be incorporated as aoon as posai-
"and admitted to all the rights, advan-
tages and immunities of citizens of tlie United
States." That tbe perfect innolaliility and
security of property ia among these rights, all
Tbe right of property, then, is protected and
secured by the treaty; and no principle is bet-
ter settled in this country, than that an incho.
ate title, to lands ie property.
Independent of treaty stipulation, this right
would he held sacred. The sovereign who ac-
quires an inhabited territory acquires full do-
minion over it; but this dominion is never sup-
posed to devest the vested rights of individuals
to property. The language of the treaty ced-
ing Louiaiana exclikiea every idea of interfering
with private property; of transferring lands
which had hern severed from the royal domain.
The people change their sovereign. Their right
to property remains unaffected by this change.
The inquiTy, then, is, whether this concrs-
134
SupREUB CouBT OP THE UNimi States.
im'J afon "w«s IsBally 'mode by the proper
kuthoritiea;" "and might have bpen perfected
into a complete title, under and in conformitj
to the laws, usat,'es bulJ cuatoma of the govern
menl under vhjch the s»me origiiieted, had
not the Bovereipitr of the country been trans
terred to the United Slates."
The concession was made in regular form
on the 1st of April, 1795, by Zenon Trndeau,
Lieutenant-Governor of the western part of
Ulinuis, In which the land lay, by spmal order
of the Baron de Curondelet, Governor (ieneral
of the province; given in consequence of a con-
tract entered into by De Luzierea with the gov-
ernment for the aupply of lead.
By the royal order of 1774, the power of
granting lands, which had Ijeen vested in the
intendarita by an order of 1708, was revested
who retained it till 179B. White's Compila-
tion, 218. In the execution of this power,
the lieutenant-governors or commandants of
gsta, as is fully shown by the proceedings
fore the various tribunals appointed under
the authority of the United States, were em-
ployed to make the original conceaaion and or
der of aurvej , and to put the grantee into pos-
aeaajon. In 1795, then, when three acta were
performed by the lieutenant-governor, under
the authority and by the special order of the
governor -general, those otEcers were "the prop-
er authority;" and had full power to make the
concession, and to perfect it by a complete ti-
tle. Who can douht that it would have been-
•o perfected, "in conformity to the laws,
.... .r ., r. ...._. avetati
f that ofBccr
who 1b by law authorized to make it, carries
with it prima facie evidence that it is within
his power. No excess of them, or departure
(rom them, is to be presumed. He violates his
duty by eiich excess, and is responsible for it.
He who alleges that an officer intrusted with
Kn important duty ims violated his instructions
must show it.
This subject was fully discuaeed in The Unit-
ed States V. Arrcdondo, 8 Peters, 691, Perche-
man v. The United States, 7 Peters, 61 ; and
The United States v. Clarke, 8 Peters, 430. It
ii unnecessary to repeat the arguments con-
tained in the opinions given by the court in
ISK*] 'The concession is unconditional; the
land was rejnilarly surveyed, and the party put
into possession.
The objection made to this plain title !■,
that the concession is not made in pursuance
of the reflations of O'Reilly.
This objection was considered in the eases
heretofore decided by this court, and especially
in B Peters, 456. It is apparent that those
regulations were intended for the general gov-
ernment of subordinate otTicers. not to control
and limit the power of the person from whose
will they emanated. The Baron de Caronde-
let, we must suppose, posSP.ssed all the powers
which had been vested in Don O'Reilly; and o
concession ordered by him is as valid as a simi-
lar coiii'esaion directed by Governor O'Reilly
would have been. Had Governor O'Reilly
BUde aucfa a grant, could it have been allied
that he had disabled hfmaelf by his fBttruc-
tions for the regulation of the conduct of hia
iiuhordinate oAicers — instructions which the
)>owcr that created must have been capable of
varying or annulling— from exercising the
power vested in him by the crown ?
The !ead mine has been mentioned. But
the act of Congreaa on which this case de-
pends, contains no reservation of lead minea.
It extends the jurisdiction of the court to all
claims, "by virtue of any French or Spanish
grant, concession, warrant or order o( survey,"
legally made by the proper authorities, etc.
This is such a concession.
The court is of opinion that the claim of the
appellant is valid, and ought to be coniirmed.
The decree of the District Court is reversed
and annulled; and this court, proceediriK to
pronounce auch decree as the District Court
ought to have given, doth declare the claim of
the petitioners to be valid; and doth confirm
their title to the tract of land in their petition
mentioned, according to the boundaries thereof,
as described in the survey made by Antonio
Souiard, principal deputy -surveyor of Upper
Loniainna, on the 14th day of December, 1780,
and his certificate of the said survey, dated tbe
5th of March, ISOO, and appearing ia the
record of the proceedings of this causa.
This cause came on to be heard on the tran-
script of the record from tbe District Court of
tiie United States for the District "of CIS*
Missouri, and was argued by counsel; on con
si deration whereof, this court ia of opinion
that the claim of the appellant ia Talid, and
ought to be confirmed. Whereupon, it is or-
dered, adjudged and decreed by this court,
that the decree of the said District Court in
this cause be, and the same is hereby reverted
and annulled; and this court, proceeding to
pronounce auch decree as the said District
Ckiurt ought to have given, doth declare the
claim of the petitioner to be valid; and doth
confirm his t)lle to the tract of land in his pe-
tition mentioned, according to the boundaries
thereof, aa described in the survey made by
Antoine Souiard, principal deputy- surveyor
of Upper Louisiana, on the 14th day of De-
'ler, 17QD, and his certificate of the taid
ey, dated the 5th of March, 18(W, and ap-
pearing in tbe record of the proceedings of tna
'AUGUSTB CHOUTEAU'S HEIES [•ill
THE UNTTED STATES.
the Llenten-
le time when
.... 0 17B9, alter
the iDteudant-ten-
.- Jinuarr, 1800, tbe
order of siirvp.v uf U\f lafd was made V the llau-
leDBUt-BOvernar. Tbe valldttj of (be order of mat-
'V depends OD the aDtborlly of tba Iteotenant-
Governor ot Upper LDiilslana, ai
power of era D I Ins lands wai te
irs ot provlDcea. This power n
; and after tbia tr
Chouikau's Heibs V. Tax United Siatib.
to make It Tbs llcutfomt-EnTernor
wmi mlso > sub-dvlp^tc, iDd ai auch, was emixiw-
end to make laebOBte grauta. Tbe grant wu mb-
Tbe transffr of the poncr to loak* concpinlonB
of laudx bplonKlDS to t^e ruyal domain ot Spain,
Imoi [tie K<JTeraor'Si>Deta1 lo the In tendan I- gen-
eral, did Dot Bflcit [be power of tbe subdeleGale,
who made lhln conc^sfipil. The order In Ibis case
la the foOBdallon of lltle, and la, according (o the
kct of Congrvsa on the liub;ei:t of conhrmlng tltlea
to lauds In Missouri, elc, and tbe general under-
■tandini and ugape of Louisiana anj Missouri ca-
pable ofbelDg perfecliHt Into a complete title. It la
-jpu£,jj g( being alleDaltd. of being skib-
ected IL _
a other property.
e held as aa-
ON appeal from the Diitrict Court of the
Uniied Statea for the Diatrict of Miaaouri.
On the ISth of Maj, 1820, tbe following
petition, with thp doeiiments therein referred to,
was presented bv the appellanta to the Eliatriet
Court of tha United Statea for the District of
Miesouri.
"To the honorable the District Court of the
United States for the District of Miasourf.
"The petition of Aiigiiate A. Choiiteftu, Gab-
riel Cer^ Chouteau, Henry Chouteau, Edward
Chouteau, EulaJie Paul, and Kcn^ Paul, hus-
band of said Eulalie; Louiee Paul, and Gabriel
Paul, husband of said Louise; Emilie Smith,
and Thomas F, Smith, husband of said Eniilie,
respectfully Bboweth. thiit in the year I7DD,
Auguste A. Chouteau, deceased, late of Bt.
Louis, the fatlier of your petitioners, applied to
and obtained permission from the government
then existini; in Upper Louiejana, to eatabliah
a distillery in or near the town of St. Ixiuis, as
will more fully appear by the petition and or-
der thereon, dated the 6th of NoveDiber, 1799,
1S8*] and 3d of January, leOO, *which are
herewith shown to the court and prayed to be
taken as part of this petition {markedNo. 1) ;
that on the fith day of January, 1800, said Au-
gaatv Chouteau presented hia petition of that
<late to the Lieutenant-Governor of the Prov-
ince of Upper Louisiann, praying that a tract of
land contnininc twelve hundred and ei^'lity-one
arpents, superlk-ial measure of Puris, situated
near the town of St. Ijouis. bounded on the
north by a tract granted to Doctor John Wat-
kiiia. on the south and on the west by the lands
of the third line of concessions, should be grant-
ed to tbe said Aiif^ste Chouteau and his heirs,
for the purpose of enabling said Auguste Chou-
teau to obtain a sufficient supply of fire-wood
for the distillery aforesaid ; that on the
same day, to wit, tlie Sth of January, IBOO, the
said lieutenant -governor made his decree con-
formably to the prayer of said petition, where-
by said lieutenant-governor directed and ordered
that the surveyor of the said province, Don
Antonio Soulard, should put the said Auguste
<3iouteau in possession of the said tract of
twelve hundred and eighty-one arpents, in the
place indicated and demanded, to the end that
•aid Au^'ste Chouteau might afterward obtain
the complete litle tliereto from the govemor-
gmeral. all which will appear by said petition
and derree, now here produced {marked No. 2).
and which petition and decree is prayed to be
taken as part of this petition; thnt afterward^i,
in obedience to said aecrre, to wit, on the 6tli
day of March, 1801, the said surveyor, Don
Anlonio Soulard, delivered the possession of
aald tract to said Auguste, and executed a sur-
Tey and plat of aurve^ thereof, ai will mora
fnlly appear by the said plat and certificate of
survey, bearing date the lOLh of April, 1801,
now here produced [marked No. 3), and which
aald plat and certificate were recorded in book
A, p. 43, No. 82, in tlie oIHce of said surveyor,
as by reference lo the said certilicate end lo
said rocorii in the office of the surveyor of this
district will appeiir; that said decrees ho made
by said lieutenant-governor, were made in pur-
suance of the special instruction siveu by the
Governor -General of Louisiniia, Don Manuel
Gayoso De Lemos, to said lieutenant-governor,
to favor and forward the aforexaid undertak-
ings of said Auguste Chouteau, as will appear
by the letter of snid governor -general addressed
to said Auguste Chouteau, under dale the 201h
of May, 1TS9, in answer to an application made
by said Auguste 'Chouteau t^ said ['ISO
governor -general, as will appear by reference
tosaid original letter herewith exhibited (marked
No. 4), and prayed to be taken as part of tliii
petition; that, by virtue of said decrees, sur-
vey, and delivery of possession, said Auguste
occupied and enjoyed said tract, so grau'ed, as
the lawful proprietor thereof, from the ilate of
said delivery of possession until tli« dUk.'oase of
said Auguste Chouteau; that said Auguste, dur-
ing his life, did, in conformity to the acts of
Congress in that case made and provideil, sub-
mit his claim to said tract, derived as aforesaid,
lo the board of commissioners heretofore cre-
oted for the settlement and adjudication of
French and Spanish land claims in L'pper
Louisiana; that said board ejected said claim
on the sole ground that a tract of a league
square having been already confirmed to said
Auguste Chouteau, the board bad not power
under the law, as it then stood, to confirm to
said Chouteau any greater quantity; and your
petitioners show that said board, for the pur-
pose, as it is supposed, of testifying their sense
of the merits of said claim, did cause to he in-
dorsed on the back of a document therein ex-
hibited to them thi' words bona fide, as will ap-
pear, reference being had to said document
No. 2 hereinljefore mentioned; your petitioners
further show, that said Auguste Chouteau haa
departed this life, and that previous to his death
he made his last will and testament, in due
form of law, whereby he devised to your peti-
tioners the said tract of twelve hundred and
eighty-one arpents, besides other property, to
your petitioners and their heirs, as tenants in
common. Wherefore your petitioners pray that
said title may be inquired into, and that the same
be confirmed, as the same would have been
confirmed had not the sovereignty of said prov-
ince been transferred to the United Statea.
(Translation.) No. 1. "To Mr. Charles
Uehault Delaasua, Lieutenant-Colonel, attached
to the regiment of Louisiana, and Lieutenant-
Governor of the upper part of same province,
"Auguste Chouteau haa the honor to expose,
that he wishes to establish, in this town, a
nTanufacture proper to distill the several kinds
of grains raised in this dependency, (tol supply
the wants of the consumption of the plaiT. of
which remote distance to the chief city renders
the importation too expensive 'to draw t'140
from it annually what is necessary for its use.
Wherefore, air, the supplicant, previous to
SUPUUIK COITBT Ot THK UNITtD StaTCS.
ISU
•ubjeoting himself to considerable expenges to
form audi an estaMishTnent, wiiihes to obtaiii
the honor of your consent, in order that hvrv-
after he nisy not be tubjeet to any alteration
hurtful to hiH inlerests: wherefore the stippli-
caiit will ncknowteJge your goodness, if you
grant his request. Augusts Chouteau.
"St. Louis of Illinois, November 6th, 17fl9.
"St. Louis of Ulinois, January 3d, IBOO.
"Considering that the eatablishment whieh
the supplicant proposes to form will be useful
to the piiblie and to commerce, because there
does not e\ist any of this nature, and that he
will procure liquors in a fpreater abundance,
and at a less price than those which are import-
ed, and In very little quantity, from New Or-
leans, we (trnnt the request.
Charles Uehault Delassiu. [L. S.]
(Translation,) No. 2. -Tj Mr. Chirles
Dehault Dclassus, Lieutenant-Colonel, attached
to the fixed regiment of Louisiana, and Lieu-
tenant-Governor of the upper part of said prov-
"AuiruBte Chouteau, merchant, of this town,
has the honor to represent, that the lands adja-
cent to thin town being mostly conceded, and
timber liecomiug daily very iicarce. he is very
much embarrassed iii the carrying on of the
cotisi del ubie diBtillcty which you have permit-
ted him to establish by your decree, dated 5th
of Xoveml>er of tust year; consuquently, he
hopes you will be pii;ui>eil to assist him in his
vieivs, and have the goodneus to gi'ant him the
conccs.^ion of one llioui<«ad two hundred and
eighty. one snperGeial arpents of this land, sit-
uated on the [oi'th eont'cssion in depth of the
land adjoining this town; bounded north by
the land of Dr. John Watkins; south and
west, by the lands of the third concessioD. The
supplicant, bibides having the intention to es.
tablidh tlie said lamis, hopes to obtain of your
justice the favor whieh he aolicita.
"Auguste Chouteau.
St. Louis, January eth, ISOO.
141*] *St. i>>ui8 of niinoia,)
.lanunry 6th, IBOO J
"BeinfT saliiliFd that tli" Hiipplicant has suf-
ficient nicuiis to make available, in the term of
the regulation of the Governor. General of this
Province, the lands which he demands, the sur-
veyor of this Upper Louisiana. Mr. Anthony
Soulnrd, will put him in posBcasion of the one
thousnnd two liimdred and eighty -one arpents
of land in the place where he asks it; and aft-
erwards the npiilicant will have to solicit the
formal title of conressions of the intendant-gen-
eral of these provinces, to whom belongs, by or-
der of his M — , the disposing and conceding
every kind of vacant lands of the royal do-
mains. Charles Dehault Delaasus."
No. 3. The survey of the land was made
by Antonio Soulnrd, principal Deputy -Survey-
or of Upper r..ouifiiana, on the 5tli da? of March,
and certiflcd on the 10th of April, 1801.
"New Orleans, May 20th, 1790.
(Translation.) No. 4. "My dear friend;
Wishing to testify to you my esteem, by every
opportunity, I merely assure you of ray es-
teem, promising you to answer your letter by
the boat that just arrived, and which will leave
here next week.
"In my instructions to Mr. Dclassus, I reC'
ommend him particularly to favor all your
undprtakin^, etc., etc.
"Adieu. I am in such a hurry that I have
but the time to tell you that I am your aincer*
friend and most humble servant,
"Manuel Gayoso de Leiiioa."
The district attorney of the United State*
fded an answer to the petition, denying the
claim of the petitioners, and requiring proof
of the same.
At the January seasion of the Dintrict Court
in the year 18J0, a decree was entered nj>ainiit
tho validity of the title and claim of the peti-
tioners.
From this decree the petitioners prosecuted
this appeal.
The case was argued by Mr. White for the
Bfipellants, and by the Attorney -Genera I, for the
United S'.Dtea.
'For the appellants, it was contended: [*I42
1. That the title presented is a valid !>panish
grant, made in conformity to the laws, custonis
and usages of the Spanish government.
2. That the said title w;ib confirmed by thi
treaty of cession of Lovisisna.
3. That the petitioners are entitled to a de-
eree of confirmation by said treaty, and tht
proceed inva under the same.
Mr. Butler, Attorney -General, argued:
1. The decrees of the lieutenant- fro vernors
relied on by the petilioneru, were made in con-
travention of the laws, ordinances and re^iila
tions ia force at the times when they ri:i>p.:et.
ively bear date, and which continued in force
until the treaty of cession, and were lliercl'ore
wholly void; and being so, do valid claim un-
der the treaty or the acta of Congie^s can be
founded thereon.
2. The petitioners did not show in either
case a title by prescription.
Mr. Chief Justice UaisluUl delivered tlie
opinion of the court:
Auguste A. Chouteau and others, devisuea
of Auguste Chouteau, presented their petition
to the 0>urt of the Uuilid UtaUo for liie Uia-
lii.,i to
idled aud eighty-onc ar-
pents of land, near the town of §1. I<ouid, in
the State of Missouri, which they claim under
the following circumstances, be confirmed.
The late Auguste Chouteau applied to the
then existing Governor of Upper l^uislaua for
permission to estaliliih a distillery in or near
the town of St. Louis, whieh permission was
granted on the 3d of January, IBOO.
He then petitioned for a conit^ision for one
thousand two hundred and ei$tlily>one tuper-
Acial arpents of land, to fnrMish lire-wood for
hia distillery, which waa granted in the follow-
ing words :
"St. Louis of niinois, January 6th, 1800.
"Being satisfied that the applicant has suf-
ficient means to make available in the term of
the regulation of this province M.he [• 1 43
lands which he demands, the surveyor of this
Upper Tjouiuiana, Mr, Anthony Soulard, will
nut hia in possission of the one thousand two
Iiiindred and eighty-one arpents of land in the
place where he asks it; and afterwards the ap-
plicant will have to solicit the formal title of
oonccBsiona of the tntcndant -genera I of these
Pet«i* •■
Chootkau'i Heiu v. Tbk United Stateb.
149
rnncea^ to whom belongs, by order of his
-, the disposing and conceding every kind
of vic»nt lands of the rofal tlomaine.
"Cliarles Ochault DetasBus."
The permisston of the gov em or -general to
erect the distillery is alluded to in the follow
ing letter from him to Mr. DelasBiis:
"New Orleans, May 20th, 1700.
"Mj dear triendi Wishing to testify to you
my esteem by every opportunity, I merely
nun yon of my esteem, promiaing to ans
your letter by the boat that just arriTed, and
whirh will leave here next week.
"In my instructions to Mr. Delassua, I
ommend him particularly to favor all your
undertakings, etc., etc.
"Adieu. 1 am in such a hurry that I haTe
but the time to tell you that I am your sine
friend and most humble servant,
"Manuel Gayoso de Lemos.
The ordpr of survey was executed on the
10th of April, 1801, and the petitioner put
into posaessinn, which he retained till his
death, having Grgt made bis last will, In which
be devised it to the petitioners, who have
taken all the steps required by law to preserve
their claim.
The petition prays for a conflrmstioa of the
title. Tiie answer of the district attorney ad-
mit* nothing, and submits the case to the court
on the proof to be made by the petitioners
The erection of the distillery, and the manu-
facture of spirits to a considerable extent, the
afmarent motives to the grant, are fully proved.
The distinction between the case of Chou-
tean et al., and that oF Delassua, whose title
kas been confirmed, consists in this: The con-
cession to Dtlaasus was made by the Lieutcn.
ant-Governor of Upper Louisiana by direction
of the governor-general, at a time when the
power of granting land waa vested in the
H4*] 'governors of provinces. This power
woa trannferred to the intendant-general in I70B,
after whith transfer in 1800, the order of sur-
vey under which Chouteau claimed was made
^ the lieutenant-governor. The validity of
the order depends on the authority of the lieu-
tenant-governor to make it. Chouteau alleges
in support of this authority, that the lieuten-
ant-governor was also sub-delegate, in which
ehar?.cter be was empowered to grant incom-
^ete titles.
Several documents have been laid before the
court which satisfy ui that the lieutenant-gov-
emora were, by virttie of their office, aiib-dele-
gates. In the record in Soulnrd's case, which
we understand is to be considered as an ex.
bibit in (hie, a letter from the Lieutenant-Gov-
ernor Delassns to the surveyor general is intro-
doced, in which he recites a letter of Morales,
the intendant general, to him, dated the 1st
of December, 1802, in forming him that in
conseqtience ef the death of the asacssor he
had closed the tribunal of affairs and causen
relating to grants and conflimationB of royal
lands. The letter adds: "I make this com
munimtion in order that, appriseil of tbis
providence, you may not receive, frame or
transmit memorials soliciting lands until fsr-
In a letter of the S6th of August, ITflO, ad-
dressed by Kloralea to Don Carlos Dehault p«-
laaaus. In which he notices instructions gives
hy Delassus to Roberto McKay, in his charac
ter of sub-delegate, he observes. "I must say,
that it being contrary to law that one sub-dele-
gate should transfer his powers to another, the
instruction given by you cannot, nor ought
to have effect i and the more so, as the sub-
delegation of the intendancy is locnl."
In a certificate given by Don Gillierto Leon-
ard, Treasurer of the Army, and Don Manuel
Gonzalez Armirez, Ministers of the Hoyal
Treasury, etc., of the Province of Louisiana,
they certify tbat in pursuance of a decree of
the senior intendant-general ad interim, tha
senior Colonel Ch^Lrles Dehault Delasaus, for-
merly commandant of the port of New Madi'id,
and Lieutenant -Oovernor of St. Louis of the
Illinoia, with the sub- delegation of the royal
treasury in both situations, etc.
In the claims laid before the commissioners,
and confirmed, are several which originated
with DelasBuB after the power of granting lands
was transferred for the governor to the intend-
ant-general. 'This very order of survey ["1 45
was executed by the surveyor -general In 1601.
delivered to Chouteau which
On this point the report made by the recorder
and commissioners to Congress under the Act ^
the Bth of July, 1832, and the 2d of March,
1833, cannot be disregarded. They speak of the
union of the two officers of lieutenant-governor
and Bub -delegate as being universally under-
stood and admitted.
arles Dehault Delassus, Lieutenant -Gov-
r of Upper Louisiana, whose deposition
appears to be annexed to the report of the
commissioners, deposes, "that all the lieuten-
ant-governors of Upper Louisiana were, in
'irtue of their olIlceB as lieutenant-governors,
ikewise sub -delegates. That the offices of lieu.
tenant. governor and sub-detrgate were insep-
aralile." Morales, immediately after the sale
of the royal lands had been transferred to bis
intendancy, assigns as one reason for issuing
his regulations, "tbat the commandants, as sub-
delegates of the intendancy, may be informed
of what they ought to observe."
as we think must be admitted, Delassus
sub-delegate as well as iieutenant-^vernor,
the transfer of the power of granting lands be-
longing to tiie royaT domain from the governor
to the intendant-general, did not affect his
power to give the order of survey on which
the title of the petitioners depends. That order
the foundation of title, and is, according to
1 acts of Congress and the general understand-
ing and usage of Louisiana and Missouri, capa-
ble of being perfected into a complete title.
It is property capable of being alienated, of
being subjected to debts, and ia as such to bs
held as sacred and inviolable as other property.
The power of Lieutenant-Governor Delassus
in his character of sub-delegate to mnke this
order of survey being established, all the prin-
ples settled on the preceding cases appiy to
lin. No objection to tha claim is perceived,
11(1 we think it ought to have been declared
SUPEUIB COUKI OF THX UMITED ST&TB.
IS35
•oeh k decree ai tti« IKetriet Court ought to
b«ive given, dotb declare the claim of the peti-
tion era to the tract of land in their petition
mentioned to be valid, and doth i&irm theii
title to the same ftccordinK to the boundaries
1 4 8"] thereof, as 'describea in the survej made
by Antoine Soulard, Principal Deputy- Surveyor
(H Upper Louisiana on the 6th day of March,
1601, a certiScate of which appears in the r«c-
ord, dated the 10th day of April, 1801.
This cause csme on to be heard on the tran-
•eript of the record from the District Court of
the United States for the District of Miss
and was argued by counsel ; on consider!
whereof, this court is of opinion that the claim
of the appellants Is valid, and ought to be
Srraed. AVhereupon, it is ordered, adjudged
and decreed by this court, that the decree of
the Mid District Court in this cause be,
tue same is hereby reversed and annulled; and
this court, proceeding to pronounce such decree
as the said District Court ought to have given,
doth declare the claim of the ^titioners to be
valid, and doth conHrm their title to the i
of land in their petition mentioned, according
to the boundaries thereof as described in the
urvey made by Antoine Soulard, Principal Dep-
uty-Surveyor of Upper Louisiana, on the 6th
day of March, 1801, a certificate of which ap-
pears in the record, dated the 10th day of April,
1801.
bli
THE UNITED 8TATE3,
A concestilan ot one leacruc nquare of laniT- In
iper LouislBns. was made b; Don Z«non Trn-
>u. the LlPUtrnant-Goveroor of that provloce,
AuEuste Chouti'Ku, nnd s decree made \>y b\m <II-
'tlog the surveTor-geoeral of the province to put
1,11 tn ni-dtr to enable mouteao to eollcLt » com-
t hereof from tbe gOTeriior-)teners1, wbo.
tv the said di
Saat of the land, 'ine lana was survtjpo, ana
SBraatee put In full poiTCulaa of 11 on the SOU)
ot Drcpmber, 1S03. He retained pobkcbbIoq of It
until bis destb. Tbe objection to tbe valldltj of
the conceMlon was, tbat the pelllianer had not as
many tame cattle a* tbe eiRhth regulatloo of Gov-
ernor O'Be'llr, GoTernor-fieiieral of LoulalBna. re-
qnlred. That reKulitlan required tbat the appll-
— . r — . . .* , league square -* ' — -* -' — '■"
e It ai
head of tame cattle, „
two slaves to look after them : a proportion vhicb
shall alwava be oiippived lor tbe erstitn, etc.
Bt thb Coubt: la the aplrlt ot tbe decisions
wblcb have been heretofore made bf tbln court,
SDd of the acts of conflrmatlon pijued by Congreaa,
tbe fact tbat tbe applicant pD«esiied the requliltc
amount of propprt.r to enlltle bim to tbe land be
solicited, naa submltlPd to the officer who decided
on the appllCHflon, and be la not bound to prove It
- •- • -.^.-K „ _ .... -Biidltr of tbe
court can truat the Infonnatloa received
■ubject. neither tbe ([o<
The regulatloa made bj Doo O'Rdily as to tbe
quanllt; of land to be granled to an Individual, Is
not (hat no Individual ahall receive grants for
more than one leHKUc square, but tbat no KTiDt
shall exceed a league aquare. Tbe wuida of ibe
regulation do not forbid
■■r beeu >o c
la the a
APPEAL from the District Court of the
United States for the District of Missouri.
Under the aulhoritj of an Act of Cougress
entitled "An Act enabling (he claimants of
lands within the limits of the State of Missouri
and the Territory of Arkansas to institute pro-
ceedings to try the validity of their clainis,"
the appellants, on the 18th of May, 1S29, filed
the following petition and documents:
"■To the honorable judge of the Uis- ('148
trict Court of the United States for the State of
Missouri.
"Respectfully showcth your petitioners, Au-
Sste A, Gabriel Cer«, Henry and Edward
outeau, Uene Paul and Eulalie his wife,
Gabriel Paul and Louise his wife, Thomas
F. Smith and Emilie his wife, that August*
Chouteau, late of the city and County of
St. Louis, State of Missouri, dcceaeed, on the
6th day of January, in the year 1789, being
then a resident of the Province of Upper Louisi-
ana, presented his petition to Don Zen on Tm-
deau, Lieutenant-Governor of said province,
and of the western part of the Illinois district,
whereby he prayed that a tract of land consist-
ing of seven thousand and flfty-six arpents, or
a square league, situated on the M[s8issip[ri
River, about Ufty miles, more or less, distant
from the town of St. I,K)uis, should be granted
to your petitioner for the purpose of enabling
him to establish a grazing and agricultural farm
thereon, when his means should permit him so
to do. That on the 8th day of Junuary, in the
year last aforesaid, the said lieutenant-governor
did. In compliance with the prayer of said
petitioner, decree and direct that the sur-
veyor of said province, Don Antoine Soulard,
should put your petitioner in possession of tho
land so prayed for, and should survey the same,
and make a plat and certificate thereof, in order
that the petitioner might make use of the same
to solicit a complete title thereon from the gov-
ernor-general of the Province of Louisiana,
who by said decree was informed that the said
petitioner's circumstances were such as to en-
title bim to that favor. That, in pursuance of
said decree or order of possession and survey,
ttie deputy -surveyor, Don Santiago Rankin,
duly thereto authorized by the principal sur-
veyor, tbe said Antoine Soulnrd, did, on the
20th day of December, in the year 1803, locate
and survey said tract of a lesECue square on a
part of the royal domain, about llfty-seven
miles north of St. Louis sforesaid, and about
three miles south of the MiHsit^ippi boundary;
the said seven thousand and Hftv-sis arpenta on
the north-west quarter north, by the laudi of
Don Joseph Brazeau, on the south-east quarter
south, north-east quarter east, and south-west
quarter west, by the royal domain lands, and
said Don Santiago Rankin did, then and there,
by virtue of the decree and authority aforesaid,
deliver possession of said tract of a squara
league, so hoimded and 'located, to said [*14t
Augusts Chouteau; alt which will more fully
appear hj tha following docmnenta here
Paten •.
Chodtiau'b Hutu v. The Unrm SrATta.
141
brought Into eottrt tutd ready to be produced,
to wit: (Kid oriKiTwl petition and decree, end bj
tbe eertifinte of aurvef , dated the Mb of De-
coluber, 1S03, and duly eiga«d and aealed by
the aaid aurveyor of the Province of Upper
Louiaiana, Don Antoine Sou lard, and which
aaid lurvey ia duty recorded in book B, folio
27, Ko. E6, DOW in the office of the aurreyor-
general of this diatrict. And your petitionera
*rcr that said Auguste Chouteau, at the date of
hia said petition and of said order or decree o(
••id lieutenant -governor, and at date of laid
■QTvey, was poueasor of at least one hundred
be*d of tame cattle, from two to chree hundred
hogs, from thirty to forty horaea, about forty
abeep, and from fifty to sixty slaves. Tbe
■aid original cottcesaion and survey have been
■ubmittetl to the tioBrd of commisaionera here-
tofore eatabtished for the adjudication of uncon-
firmed land claima, and by it refuaed to be con-
firmed. Vour petitioner farther ahow that at
the data of aaid decree of concesaion and sur-
vey, and ever aince, until his death, the said
Auguste Chouteau has been a resident of the
Province of Upper Louisiana, or State of Mis-
•fturi. That aaid Augusta Chouteau, by virtue
of the act of Congress in that case made and
rvided, procured the said tract and survey to
laid down on the general plat in the ollice
of tbe regiater of the land-otfire of this diatrict,
and the same has been and is reserved from
public sale until a deciaion shall be had by the
proper authority thereon. That the sectional
boundary liaes an the general plat uv at fol-
lows: commencing at the north-west comer of
Joaeph Braieau's confirmed claim of seven
thousand and rifty-sjx arpents, in tbe south-
east quarter of section number thirty-five, in
township number fifty-two, north, of range num-
ber one, east; running thence, north thirty, east
two hundred and forty-five chains, to a point
near the line, between sections number fif-
teen and twenty-two in township number
fifty-two north, <d ruige number one, east;
thence north sixty, east two hundred and
forty-five chains, to a point in section num-
ber twelve, in township number fifty -two,
norlh, ol range number one, east; thence south
thirty, east two hundred and forty-five chains,
to the north-east comer of the survey of Br«-
nau, before mentioned, in the north-west quar-
ter of section number twenty -nine, in township
ISO*] •number fifty-two, north, of range
number two, east; thence, with Brazeau's line
south sixty, west two hundred and forty-five
chains, to tbe beginning. Your petitioners
farther show, that no part of said tract, so laid
down *nd surveyed, is occupied or claimed by
any person or persona ndverse to the title of
your petitioners. Your petitioners further show
that aaid Auguste Chouteau has departed thia
life, and that previous to hia decease he deviaed
to your petitioners the said tract of seven thou-
sand and flfty-aix arpents, by his will, diily ex-
ecuted, and now ready to be produced. Where-
fore your petitioners pray that the validity of
tbe elaim and title to said square league, as
hereinbefore set forth, may be inquired into
and decided upon by thia honorable court;
and that, inaamuch as the same might have
been perfKted into a complete title, under and
in conformity to the laws, usages and customs
of tbe govcrnmeiit undar which the suue ori^-
nated, had not the sovereignty of the eountrj
been transferred to the United States, your pe-
titioners pray that the said title and claim be
confirmed to said tract of land so surveyed,
bounded and located, as aforesaid; and your
petitionera pray that a citation be directed to
the diatrict -attorney of the United States, re-
Suiriag him, on a day certain, to appear and
low cause, if any he can, against the decree
prayed for by your petitionera.
"The documents referred to in tbe foregoing
petition of the heirs and devisees of Auguste
Chouteau, deceased, translations of which wera
filed in evidence on the hearing of said cause,
being truly copied, are as followa, to wit:
"To Mr. Zenon Trudeau, Lieutenant -Col-
onel, Captain of the First Regiment of I^/iuisi-
ana, and Lleutenant-OoTemor of the western
part of Illinois.
"Auguste Chouteau, merchant, of this town,
has the honor to represent to you, that hav-
ing heard it reported that there were good
lands in the Miaaiaaippi River at about fiftr
milea of thia town, and being posseased of auf-
Gcient means to catabUsh a grazing farm, has
the honor to request you to have the goodness
to grant him at tbe place above named a league
square of land, or seven thousand and fifty -sis
arpents in superficies, a quantity which never
was refused, either in the 'lower or [*151
upper part of this colony for similar establish-
ments; the supplicant having also the project
to eatablish on tbe aaid land a considerable
farm, hopes that you will favor his views,
which cannot but be advantageous to the safety
of those establishments, and to the internal
communication, by keeping away the Indiana,
who, at divers periods of the year, spread them
selves in our neighborhoods to lay waste oui-
farms that are too far apart from each other to
lend the necesssry asBistance In similar casea.
Your suppliant, confident in your justice and
in tha generoaity of the government of wbieh
you are the representative, bopes that you will
grant hia request. Auguste Chouteau.
"St. Louis of Illinois, January 3d, 1798.
"St. Louis of Dlinoia, )
January 8tb, 1708. ]
"Being satisfied that the land applied for be-
longs to tbe king's domain, the surveyor, An-
toine Soulard. will put the applicant in poa-
aeseion of the same, and afterwards make a re-
port of hia survey, in order that it may aerva
in Boliciting the concession of the governor-
j^neral of the province, to whom I give the i>-
formation that the said applicant is in tbe cir-
cumatancea which merit toss favor.
"Zenon Trudeau."
A survey of the land was returned by the
deputy-surveyor on the a9tb of December. 1803.
The district attorney of the United States
filed an anawer. denymg the validity of the
claim of the petitioner, and by a decree of the
District Court the petition was dismissed.
From this decree the petitionera appealed.
The case was argued by Mr. White for tha
appellants, and by the Attorney- General, fot
the United State*.
This ia an appekl from • deeraa of tha Dla-
in
&UPBKUB COUBT OF THB UttltBD StaTCS.
1833
trict Coart of Mfasouri, Bitting uoder the Act of
tlia 2Gth of May, 1824.
The duriaeeH of Auguste Chouteau, a citizen
of Missouri, presented their potition to the
ISa*] District Court, in which they Mate that
their testator on the 8th day of January, 17U8,
boing then a resident of Upper Louiaiana, ob-
tained fi'om Don Zenon Trudeau, Lieutenant-
Governor of that province, a decrot directing
Dos Antonio Soulard, the Surveyor -General
of the province, to put the said Chouteau in
poeavsaion of the land prayed for; and to aur
vey the same, and make a plat and certiRcate
thereof, to enable the said Chouteau to solicit
a complete title thereon from the governor-
general; nho, by the said decree, was in-
formed that the aaid pelitiouer's circumstances
were such as to entitle him to that favor. In
pursuance of this decree, the survey was exe-
cuted on the 20th of Deci^mber, 1803, and the
said Chouteau put into possession of the tract
surveyed, a mount! o a to one league square,
which he retained till his death, when he de-
vised it to the petitioners, who have remained
In possession ever since.
All the steps required by law for the preser-
vation of the title acquired by the decree of the
lieutenant-governor, have been taken.
The petitioners pray that their right and
title to the land they claim may be confirmed.
The answer of the district attorney admits
nothing, an^ refers the claim to the court.
Some testimony was taken to show that the
■aid Auguste Chouteau was, at the date of his
petition, and of the decree of the lieutenant-
governor, and at tlie date of the said survey,
possessed of at least one hundred head of tame
cattle, from two to three hundred hogs, from
one hundred and forty to one hundred and fif-
ty horses, about forty sheep, and from fifty to
uxty slaves.
The United States gave in evidence a petition
of the aaid Auguste Chouteau, presented on
the 24th day of January, 1798, to the Lieuten-
ant-Governor of Upper Louisiana, praying for
a concession of seven thousand and Hfty-six ar-
pents of land, situated on the north bunk of
the Missouri, about one hundred and live miles
from its mouth; which petition was granted on
the succeeding day. A survey of this tract
was executed on the ITth of March, 1801; and
it appears to have been conveyed by Auguste
Chouteau to Daniel Clarke, by deed bearing
date the 8th of September, 1804. This claim
was offered to the board of commissioners, but
lOS'J being "unsupported by actual 'inhab-
itation and cultivation," was rejected. The
board at the same time observed that the said
concession is not duly registered.
The only objection which can be mode to
the validity of this concession is, that the peti-
tioner did not possess as many tame cattle as
the regulations of O'Reilly required. The
eighth article of those regulations declares that
no grant in the Opclousas, Attacapas and Nat-
ehitocbes shall exceed one league in front by
one league in depth. The ninth is in these
words, "to obtain in the Opelousas, Attacapas
and Natchitoches, a grant of forty-two arpeuts
in depth, the applicant must make it appear
that he is possessed of one hundred head of
tame cattle, some horses and sheep, and two
■lavel to look aftw thenj a proportion which
•4
ehalt always l>e observed for th« granta to b«
made of greater extent than that declared in
the preceiling article."
There is some confusion in these two articles,
hicb would lead to a suspicion that the trans-
Intion may not be accurate- The eighth de-
clares that no grant shall exceed a league
iquare; and the ninth, if to be understood lit-
erally, professea to prescribe the property
'lich the applicant must possess to entitle
n to a larger quantity than a league square.
[t is also observable that tills artirlo is limited
the three diatricLa mentioned, which are not
CppiT Louisiana; and that they are peculiar-
ly adapted to a grazing country, and to a graz-
ing country only. Ttirre could be no motive
for apportioning one hundred head of cattle
to two slaves, in an agricultural country. It is
probable that if the regulations of O'Reilly
were extended to Upper Louisiana, they were
extended with modilii'ations, at least of the
ninth article, so as to adapt the proportions of
property required to the country to which the
article was extended.
lis supposition derives great strength from
the fact that the lieutenant-governor, who must
have understood his orders, certiSes to the gov-
ernor in his decree, ''that the said applicant is
in the circumstances that merit this favor."
The applicant is proved to have possessed more
slaves than were required by the ninth article
of O'Reilly'a regulations, though not so many
' me cattle.
We think, ftlso, that in the spirit of the de-
dsiona which have 'been heretofore [*1&4
made by this court, and of the acts of conllrma-
tion passed by Congri^ss, the fact that the ap-
submitted to the otSce
cation, and thnt he
the court which passes on the validity of the
grant. These incomplete titles were transfera-
ble, and the assignee might not possess the
means of proving the exact niunb?r of cattle in
possession of the petitioner when the conceaaion
was made.
It is remarkable that, If we may trust tha
best information we have on the subject, neither
the governor nor in ten dan t- general has ever re-
fused to perfect an incomplete title granted by
a deputy-governor or sub -delegate.
We cannot allow this objection to prevail.
The objection drawn by the United States
from the concession made on the 24th of Janu-
ary, naS, is not, we think, entitled to more
weight. The eighth regulation made by
O'Reilly la not that no individual shall receive
grants for more land than one league square,
but that no grant shall exceed one league
square. The words of the regulation do not
forbid different grants to the same person; and,
so far as our information goes, it has never
been so construed. Neither of these grants, so
far as we understand the geography of the
country, lies in Opelousas, Attacapas or Nat-
chitoches. It does not appear that the grant
made on the 24th of January has been estab-
lished; and the record shows that it was reject-
ed by the board of commissioner! for reasons
on the Bufficieni'y of which we do not now de-
cide. But it is conclusive that the coneeaaion
ol the 24th of Januuj WM subsequent to
IBU
HiBiAiT V, Baixor.
IM
tint of tlw Sth, tnd conaequentlj could not Kf-
f*et it.
We »T» of opinion th^t the District Court
■md in declaring the ccnceseion made to Au-
Ruate Chouteau on the Sth of January, 1798, to
be invalid, and that the tame ought to be con-
The decree of the District Court ia reversed
knd annulled, and this court, proceeding to give
mch • decree aa the District Court ought to
Iwve given, doth declare the claim of the pcti-
tionera to the tract of land in the petition men-
tioned to Ira valid, anJ doth cottSrm their title
to the same, according to the tMundariei there-
of, aa described in the survey made hj James
1S5*} Rankin, 'Deputy -Surveyor, and certified
bj Anthony Soulard, Principal Deputy -Surveyor
of Upper Louiaiaoa, as appears by his certiS-
cate of the 20th of December, IS03, contained
ia the record.
Thi* eauae came on to be heard on the tran-
•cript of the record from the District Court of
the Coited States for the District of Missouri,
and was argued by coimeel; on consideration
whereof, this court is of opinion that the claim
of the apppllants is valid, and ought to be con-
firmed. Whereupon, it is ordered, adjudged
and decreed by this court, that the decree of
the said District Court in this cause be, and the
aome is hereby reversed and annulled; and thia
court, proceeding to pronounce such decree aa
the said District Court ought to have given,
doth declare the claim of the petitioners to the
tract of land in their petition mentioned to be
valid, and doth confirm their title to the same
according to the boundaries thereof, aa de-
aeribed in the survey made by Jamea Rankin,
Deputy -Surveyor, and certified by Antonio
Soulard, Principal Deputy -Survey or of Upper
Louisiana, as appears by his certificate of the
SIKh of December, 1B03, contained in the me-
JBAN GASSIBS BALLOtT.
Lontalaaa. The Dlrtrlct Court of tbe Doited
■tain tor the Ka8(ecn District of T^ulBlSDa. In
eonfocmltj with the prorlslons o[ tbe Act ol Con-
gren of tbe 2eth ot Mar. 1824, adapted, as a rule
ot practice In tbat court, the rej>iiIstlons eatab-
ilihed by B law ot lAulslana, b; whli^h. on appeal
on (h^ pntntnn In nt the dfcree or Jud);uieDt of (be
lummar; JuitRmeot on motion
-■- ' prlncljiLLl and iccurltles
B appeal bondi.
should b
In tbe I
Coder ..
of the District Court hjr the Supreme Cogrt of the
Ualt<^ Btatea. and the fl>!ng ot Ibi' aiaodnle or the
Suprecaa Court, the Iiialrlct Court, on a malloD for
a rule on the Mcnrlly Id sd aiip^al bond [o show
cause why jiidBrnPCt should nat be entered ssalost
him on the flrst day ot tbe neil term, sud do cuuaa
belnz shown, entered a luilgmeiit ssalDst tbe ae-
carlty.
Tbs party sralnat whom the Judgmeat was en-
tered uterwards came Into court aud pi'ayed a
trial by Jury, which was ref iisrd : and he prose-
cuted tlili writ of error to rcifersc the Judgment of
the District Court retUFlns the ssld trial.
Si Tua COuit: Tbe rale of the Ulatrlct Court
of Loalalans follows the sualoi;)' ot the laws of
to suit tha orKBalsallaa ot the courts at the United
Btatea, and to eunforiu <o the laws tbereot. Tbs
aummary Judemeut In therefore sirlclly author-
lied, and the party had no rlRht to a trial by Jury.
In becamlDs a secarlly be submitted himself to be
governed by the died rules which reKUlalu tbe
pj .... .. .... .
(as lakeo In
Although this appeal
dlBSi
.1, Is not the Bubjcct uf an appeal,
ulea for tbe governmeot of the United
t Id tbe Eastern District ol Loulslaua.
:bat court. (See nota 11.
■Thia case was submitted to the court [*1ST
by Mr. Beotoo, for the appeUee, on a printe<<
statement.
The appellee in this eaae, who waa tl
Slain Hff in tbe court below, instituted his sul
1 the District Court of the United States for
the Eastern District of Louisiana, against one
Pierre Gassies, and obtained a judgment against
him Id the due course of law, 'for the [*15S
atun of $3,100, with interest at the rate of Ave
per cent., from the 1st of December, 1829, until
paid, and costs of suit; from which judg'
ment an appeal was taken to this court by aaid
Rerre Gaasies, who gave, as security to the ap-
peal bond, tbe present appellant, in the penalty
of (4,SO0, which appeal was heard in this court
at January Term, 1832. *e Peters, 761. ('16S
A judgment confirming the judgment below
was rendered; and upon said judgment and
mandate of this court in due course of pro-
ceeding, an erecution issued against the prop-
erty of said Pierre Gassies. After various pro-
ceedings had relative thereto, the marshal of
the aaid district made hia return in said case
"Present tbe Bonorable Samuel H. Barper, judge
Conrt Id the Eastern
tbis o
... - , _-d of tbe
augress of the 2ath of May,
I9~J«. eniiiiea au act lo regulate tbe mode of
B'scllre In the rourta ot the United SUtea tor the
lilrlct ot Loulalana."
It ban been conatdrrrd meful. by the reporter, to
iBsert these "General Rules" In this volume.
'At a stated sesaloa of (he Court of the United
States of America for the Essli-rn district ot lau-
' Di. held at the city of New Drieana, an Uonday.
after tbia date.
"ORNEBAL RULES.
"Rula 1. Suits at law sbsll be commenced hj
writ or proccna. under Ihe seal of th<' court, and
signed bv tbe clerk, snd be tested Id the name of
the Judge (or If that ofllce ahall be vacaot, of the
clcrkl and ahall Issue In tbe name of the I'retldent
ot the Qulted States to the marshal of the district,
commsadlns him to arrest or aummoD tbe defend,
snt IBS Ihe cnse may be), and shall be returoable
on the Drat day of each term.
"Rots 2. A petition addressed to the court shall
accompany tbe writ: It shall stste tbe nature of
the case with sufflclent precision of circumstance,
8i
Bdfbbme Coubt or the United States.
1831
ItO*] thBt the Bum of 1375.50 *alr)iie had
been made from the propertj and estate of said
Pierre CiassieB; for which lum a credit wae
given upoD the execution the SUt of JaDuarj',
1833.
Upon the 13th of April, 1833, a motion was
made in the District Court tliat Sebastian Hi-
riart, the appellant, ahow eauie on the first daj
of next term whf judgment should not b«
161*] 'entered ag&inst him for the amount of
the judgment, damages, interest and coste; and
why execution should not Usiie against Iiim.
At the proper time the said appellant filed his
answer; and after argument, etc., judgment
was given against the appellant, upon saiti
appeal bond: and the appellant prosecuted this
appeal. Execution issued upon this judgmenL
1«2"] on the 1st 'of July, 1833, and was lev-
ied upon his propertj, but the sale of it was
•tayed by an mjunction issued by the judge of
Mid District Court, on the 27th of July, 1S33.
On the 28th of December, 1833, the said injunc-
whfch pel! Ik
1 1w BlKDCd br I
lime _..- , ,.- - -
tta" party ar his couDsel. sad abaU coctaln . .
adsplfd to tbe nature nf tbe case : and whatevi
dacuuents are refviivd to Id the pi^lltluD. nx dijiI
Ine part tberpot. sbull be flird with It. or It copi'
tbeiiof are anni'xcil. the defendant or his altnint
•hall bave over vl (be original, IE be demand It, b
(ore be sball be required lo file his aiiBwer or pie;
The writ aDd peltlion b'.lae Qled. a cnpy tberei
aball be made In Ibe French ind EnEllsta raneuiiRi
(In cases where the mother tongue of the defonr
ant la French), and. logvtber with tbe orlKlm
■ball serve said copy on the defendant, bj deUve
jDg the same to blni ptraooally. or by
tion was dissolved, from which dissolution of
the Injunction tbe appellant prayed an appeal
Tbe district Judge refused to allow this writ
of error, assigning for the same the following
reasons:
•"The act of Congress forbids any ["IBS
writ of error or oppeal to be taken, except from
a llnal judgment. The .Supreme Court of the
United States, in the case of WiEitem et al. t.
The City Couinil of Charleston, 2 Petoi-a, 449,
have given a judicial definition of this word
'tinat,' It is there said 'the word final must
be understood, in the section uniler considers -
lion, as applying to all judgments and decrees
"liich determine the partieular cause,' That
is, as I understand it, only such judgments as
conclude the rights of tbe party can be consid-
ered final in the sense of (he law.
*"In the case under consi;;eration, the [•164
rights of the party complainant, as to his
liability to pay this debt (for that was his own
All causes st Issue, whether In point of
:t, sball In; called on the second day of
al the meellni; of the couil, aM set
tely transferred t
tor; or decllnat
nuy reside irom New C
i writ, allowing one day In
diction of the
iienshlp of n II
If the verdict
iirt. In all rns-s In which dlls-
i. (he parly ninklng an ch plea
>nB, 4ball puy lo Ui ' plnliiillT all
the time of their iK-lnjj d,..cided
hen a plea la made to tbe Jarls-
:, iDVorvlDg th<' iiucailou at cii
.: or process shall hare been i
1 tbe same the time of serv' —
I tbcr
leclty. 1
'Rule
with the clerk In the Eaellah and
I the flrnt day of
le defend
(If tbe
ther
r defsul
Ihereader, ibe court shall,
flnal Jiidcincn' ai-alnat (lie
mand tie llnuldated by a n
former Jiidgmenr, and If thi
Ian ^ ages
day of eacb term : at
It be Bird, nor time K
11. at the first day of
;be__opp licit Ion of plalntffl
i\ae wllblQ tbt
. Jury, (
sustains
the Jurl
do
. air'costa
the plBimlff. and
Ibe
o
shall be
ed by t
f tbe plfl
by
he
F'
; If not
It shall
be
for
hi
Ith BUb-
urt tor decision.
1 he the
ntentlOD
\K-
r(j
(0 lake
fact, h*
the CBu
e shnll
» wholly
rled"^?
scept (
If r
itract 0
quires a Jury), and shall be put In the fourth cln
of esses on (be docket.
"Rule S. When a Jury Is about to be aworn tn
cause, each party may peri'mplorlly set aside thr
of tbcm, but no more, eiccpt for a legal cause.
"Rule D. The clerk ahalt euli-r no cause on tl
docket until thf plefldlnRs are fully made up, m
ahall any cauHp Ite entered thereon except by tl
clerk or bis deputy.
"Rule 10. If any docketed cause ahall be enib
at two courts and not tried, the plaintiff shall
called, and If he does not Immediately co lo tH
hr shall hi" nnn'inlicd. unlBsa It shall appear (hat
• ■ defcndan- -^ - - ■
by tbi
lay think prop
a of tbe 'Codt
S. Tbe clerk ahall keep a doeket In w
tbat are at Isaue aball be entered In tbe
t and to tbe country are made up.
a calltiifi
; In
afflrmatlnn of
udlce defpndnnti r
If a cause Is st Iksu
nllnuance of It on
leaa. auch motion [
fllv party. hU atie
ilied by blm. atntl
lonedl T» Anting
n to tl
and either party
ccount of tbe ab-
List be on ostb or
t or attorney, la
eanaea (the United States admin
frecedence on the list). And in
)r trial tbey aball b* called Id tl
, BiLLOH.
lU
■MpuUtion is e^at the principal did not), were
p«Med upon at Uie tim« the judgment below
was affirmed, and at all events, when judgment
was given against Iiim on the rule to show
eauM as above referred to, then, perhaps, he
might have defeated the obligation by the plea
non est factum or some others but the dii^pute
now >• merelj as to the remedy sought to
enforce a right already deterniined by both
''In the ease of Young v. Grundy, S Crancb,
SI, it is said, 'an appeal docs not lie from an
interlocutory decree diseolving an injunction.'
And in Gibbons v. Ogden, Q Wbeaton, 44B, the
court say, 'nor from a decree aSirming a
decretal order of an inferior court refusing to
dissolve an injunction.'
"I am aware that the technical expression,
*interlocutory judgment,' is usually applied to
Incidental orders made in the progress of a
eauM not affecting the main question to be
afterwards determined by the court, but all
incidental orders are interlocutory,' whethet
they be made pending or after the determina-
tion of the main question, and Uiese order*
may be made so long as the case is within th«
control of the court, and all ca^es are within
the control of the court until its Judgment la
fully executed. When an injunction is ob-
tained suspending an execution, the object is
not to bring the judgment itself into review,
l>ut to inquire M-ltelher an improper attempt is
made to enforce it.
"Injunctions are gmntable at chnmbera.
Kow it wiil nut be pretended that a verbal
refusal o( a juiige to grant an injunction
would sustain an appeal; but if he should,
through inadvcrlence, grant it, when no equity
appeared on the face of the petition, or on
further examination it should be found to be
unfounded, and lie should then refuse to per-
petuate it, what difTcrcnce is there in reason
why a refusal to make it operative, after a full
invcitit'ation of its merits, should give the
"If an appltcBtlan be made foi
and ■tsD for a comtnlaslon Co proci;
oUkcr part; not constnUnE Inerel
aiDSt state what fact or ficts ft l» urn
proven on tbP Crist of ttie cause ; thi
Bonj souKht 1b compcteat snd msterl
cannot ■afeJii go to trial without Cb« b
that he lielfeTPs It can be proctired I
ttme, which stia]) be six'rllled, snd that
tlOD H not made for Aeltj. It a comrn
iBterroBB lories must be Hied, as dire
evidence (
and with CI
Si "ks^^s'i
be not the
tarn the irbort to
Id default thereof
cttled without the
insei, wrllleD. signed sad
I at ciuseB pending Cbere-
( of either psrly, and W It
— tj tamng out tlie
clary Act of 1789,
nsel. who Toay, It
croa^ ID ler ruga lories, and re-
i other within (brec duys. or,
i' o1 fSrn
whollj to alter the usture
actios or defenie
-Rule 14. Id al
called upon shall
■pecUl mal- —
lame or olb
point to th<
plaint 1 ITS c
•B wrftB of error from ludgmeats proDOunced i
thla rourt. ■ rule mar be Inken on tite prlHclpi
and bli sureties Id the appeal bond, retumsble tf
daj-s after recordlns the msodate of the Sunrcm
Court, to abow muse »b]' eiecutlan ebould at
I been otAtalDcd oa i
court aball be dellreied to tbe clerk to be i
^ ttM mtOBtCB.
"Sola 18. Not mere thaa two eeanael ■
be) :' iDd, If DO au.'h apr']tcnt!oa L
e aultaorllles cited. Diav be required of the coud-
1 OB lioth sides, bj tbe court, before giving Judg-
sworn Co be due froin dprcndant to plalutllT. specia
ball sliall be ordered; and Id sll other cases, affl
davit being made of tbe fucts. the jud^e (ur in his
held to bnll Id eti<
"lUilc LIS. Thi
■ball a
h thi
' received as special ball.
1 shall Dol be boDod to
wltucss on the da; on
required, unless specially directed to do so
24. it shall be (he duty of tbe maiabal la
!rm of (be court, and he or his depuCj ihall
LP da;, hour and place, at which he Is to ap-
. and also whether be la to serve as a grand or
"Hule Sa. To all the writa of venire, lisued tor
.ummonlnK Jurors, the marshal or bis deputy shall
naUe a return upon oath, written at length, befor*
he clerk of the court, and In tbe aa'-" — ' ■— "
nslie ODe claaa of those who wvie I
oDally, a eiennd claa ■ "
K tbp
return shall
»t who could not
e 26, The clerk ■:
and a third class
paneled, ■
allj every morning on the call of (he niiDel,'uD
previously eicused by the court, be shall be c
to show rauae why he should not be lined for
day after tbat on which they shall b«
posited Id the Branch Bsnk of the
the credit of
ITnlted Blates
said court: and it each stated
the clerk thereof shall preien. „ „.
court of all moneys remaining tberaln, subject la
nedUtelj
shall b«
t of the
.-. credit of
D of the court.
104
SUPBEUE COUKT Of THE Uhitd States.
rty uif more right to appeal than hi* refusal
the Brat instance?
"It may be Haid that vhen a disputa ariseB
a* to the right of a party to appeal, tlie csee
ought to ill- aunt up to tile Appellate Court for
its deterniinjtion oa to that right. To thia
there are two answers: 1. Where the law
Itself hea Gxcd the amount from which on
kppeal can be taken, and tbst amount is palpa-
ICft*] b\j 'below the sum so fixed; or when
the Appellate Court has given a construction
to the law embracing the right ot a part; to
appeal, in a given caae, as I conceive has been
done in I'aBra similnr to this, it would be treat-
ing the court with disrespect to send to it a case
of which, according to settled law, it could
not take cognizance. 2. However much I am
disposeu to have mj decisions reviewed, yet I
am as much bound to guard the rights of one
party aa the other; and when my judgment is
convinced that the law does not authoriEe an
appeal, and which if granted would operate
injuriously to the other party, I feel bound to
refuse it. Besides, If tills party ha* a rl|1it to
appeal upon the ground stated, hia iecuritj in
the appeal bond, in case of his insolvency,
would nove the same right, on making a suffi-
cient oath, to obtain an injunction, and aa on
ad infinitum.
After the order to dissolve the injunction,
the plaintiff below took out an alias execuUoa
against the property of Sebastian Hiriart, the
prior execution having been returned into
On' the 12th of April, 1S34, Mr. Slldell,
counsel for Hiriart, obtained, on motion, an
order that the defendant, Jean Gossies Ballon,
show cause, on Monday, the 14tb instant, at
11 o'clock A. M., why the execution iaiued in
this case should not be quashed, and all
further proceedings on the judgment rendered
in tliJB case suspended on the ground that the
Supreme Court has accorded a writ of error
wtueb had been refused by thia court before
the execution issued.
And on the 14th of the lame month the fol-
tbe order
■-Rule 28. All I
ereoi.' shVll be flled la
1 be paid lata [
epoBJted Id th* II
ales of sucb n
ncd In ttili and ti
__ Bret pstd
"Uule 20. Uaaei deposited In court pendlDg a
-, "lall or' ■-- '""- — -■ " ' — -" • ■
suit, shall not bt deUier
"OBMKBAL HOLES 0
> anr part; i
PRACTICa IN AD-
"BulB 2. When tb* prDCen la In .
party la alio perBonnll; cited, the cltatlcD shall be
made returnabli at the same time with the wai
rant, to wit. In rourieen da.vs : and wlieu the ui-o
cecdisg la altogether In peraonam, the proeeaa abal
lll(B*l»e be rtturr-"^'- '- ■ ■■ —
-Uule 8. In a). ..
at anj ship or vessel. Koodi.
dlw. wheD (ho clalmaDt ma; bODd ol right undi
the Seth section of (be Act of 2d March. 1T99, To
rcBulal* the col lection ot duties on Import* and
tonnage,' a>d In all other cases wbere the district
maj be done In tbs maDner directed bV the said
sactlon, the dlitriet attorney naming the appralB-
•r* and approTlns the aecutlty.
"ftule 4. The clerk, or In big abaeace, the dep-
Dtr clerk, be, and be la bereb; appointed, a commls-
Bloaer, before whom appralaers ot sblpa or vessels.
or BOods, wsres and merchandise, selii'd tor bri^acb-
ee ol aaj law ot the United States, ma; be awom
"Rule 0. AppralBen. acting nnder the ordan of
the court, sha^l be aeverBllr entitled to receive Ave
doilara In each CSHe whclpin llir.v li,»v mnt,. nn mi-
pralsemeot, to be rHid b; t
Stance the anpralEemeot ■
"Rule «. Alfappraiaemen
: party
all be
<r that parpose, and the originals
£aU"totw
"Rule 7. Se vessel or mercbandlBe Id the cus-
todj ol the mnrahais ehall be released upon bond,
tutu the casta and cbargea of the officers of the
'■■rSI^ )
asme at public auction, sfter notice, ss may b
esaary to defray the coats aud charge* Incident t«
the keeping ot tbe tame.
'Rule e. Moueya paid Into court aball not be
paid out Id pursuance ol any decree of the ssme,
upon which an appeal may be bad. until ten days
(ercluslve of Ruudays) aball have elspaed after
such decree shall have been made, and wbcu an ap-
peal shall be entered, tbe appellant shall, within
ten daya. eiclualve oE Sundays, from tbe time of
making tbe decree, glre aecurlty tor damages and
coBta. and It aecurlty stiBll nnl be given wlttiln that
time, the decree may be executed OS it thera bad
been prayed for.
). In proceedings touching seamen's
ica s party is cited to show cause agalnat
iDB of admiralty procesa, oath must be
-- the aerrlce ot sucb citation. In cane tba
party cited docs not appear, except the citation
haa beec returned, and served by tbe mambal or
bis deputy.
"Ruls II. No claim sbsll be flled after the ei-
ptratiOD of moultiOQ, or return day ot the warrant.
without tbe leave ot tbe court, or by consent ot the
parties libelant. In writing, and put oa Ille,
"Kule IZ. In all coaes in wlilcb the United
Slates arc libelants, tbe clerk la authorised to to-
aue admiralty proeeaa wllbout an order from Uw
Judge.
"ADDITIONAL BULBS.
-'2qth March. 1830.
Dt InvolTlng mHliciB' of 'iHct. ahall
_. -ESS verlSedV affldarlt Qled there-
with by the counsel, agent or party, as to their be-
llel of tbe truth thareaf.
_ "14th June, 1880.
"2. Tha tsstlmoni of wltnesaea given at the bar
Bhall not be reduced to writing by tha clerk Of the
conrl, or any other person In trials at law. aa coa-
tradiatlnguiataed from admiralty and equity esDaeo.
"8, li'acts sbsll not be submitted to a jury In »r-
der to oblBln a special verdict in any cause, except
by the consent of parties entered on record.
4. No verbal agreementa or arraogemeDts of
partlea, or their counsel, touching any cause de-
pending In this court, sbsli be deemed of any va-
lidity, or not''*'"' '" **** -Fm- h« »h- «*..Ji^
lldity, I
"It la ordered that the twelfth rule of tti
at this court relating to suits at law he so amenaeil
IS to allow plaintiffs In all cases to take out com-
mlsaions to examine wltueSBes alter the relarn Ot
service of proeeaa ; tbe plaintiff serving the defend-
... -,..1. . .. v.. . „ hereto-
t witb a
country, he shall be allowed. In addltli
time
now prescribed, ene day ^or every twenty bIIm
distance he may reside from the city of New Or-
: CO mm lesions o
. ._ _.. .--_-lnterrogator et , i,-....^.
the part o( delendaut shall lasue only after lb.uo
lolne^ and In eoBformllj with the prertoua piae-
1831
Tbb UiimD STATB8 V. Claikx.
lowing; ordrr wu madei The rule taktn bf
the pbintilT on the defendant came on thii day
before the court, when, no opposition being
made hf the counsel for the defendant, it is
ordered that the same be made abaolute, on
condition that the pUintiS enter into bond,
■rilh gocNl and sufficient sureties, to respond to
the judgment enjoined against by the plaintiff.
The questions submitted to the court, on the
part of the defendant in error, are, whether
there be error in the proceedings of the
District Court of Louisiana in the refusal of
the writ of error; and whether the judgment
and decree of the said court ought not to be
eonlirmed with damages; the present applica-
tion being made for delay only.
!••*] *Hr. Justice Story delivered the
opinion of the court:
This i* a writ of error to the Diatrict Court
of the Eastern District of Louisiana. The
plaintiff in error was surety in an appeal bond
given upon a writ of error to a judgment of
the District Court of Louisiana, rendered in
IKW, in the suit of Jean Gassies Ballon v.
Pierre Gassies; which judgment was afHrmed
in the Supreme Court of tlie United States in
183^ Upon the cause coming baclt to the
District Court upon the mandate of the Su-
preme Court, execution Issued against the
jndgment debtor, IHerre Gaasiea, and was re-
turned satisfied in part. Upon motion after-
wards made, and due notice to i4iriart, a
aununary judgment was entered agninst him
upon the appeal bond, in pursuance of a rule
of the District Court. The rule is in the fol-
lowing words: "In all eases of affirmsnee of
jndgment, on writs of arror from judgments
pTtmounczed in this court, a rule may be taken
on the principal and his sureties in the spppal
bond, returnable ten days after recording the
mandate of the Supreme Court to show cauae
why execution should not issue against them;
and BO cause being shown, judgment shall be
entered against them and the prindpal, and
■zecution issue accordingly." Hiriort showed
tor cause (among other things not necessary to
ba stated, as they are not cognizable on a writ
of error) that the proreeding was irregular,
and that if liable on the bond, his liability
most be established by an ordinary action
befora a competent tribunal. The District
Court, notwithstanding, entered the summary
judgment, and the writ of error Is taken to
this judgment.
The principal point relied on seems to be
that the party was entitled to a trial by jury,
and that no such summnry judgment is author-
ized by Taw. Whether this objection is well
founded depends upon the Act of Conjn'ess of
the 2Cth of May, 1624, for the refruUtinn of
the practice of the District Court of LoiiiHinnn.
That act declares that the mode of pra<?eedinf;
in civil causes in the courts of the United
States tn liouisiana shall be conformable to the
laws directing the mode of practice In Ihe
district courts of the Stales, with a power in
the judge to make rules to adapt such laws of
procedure to the organiration of the courts of
the Untied Stutes. The laws of Louisiana
allow appeals from the district courts of ihe
State to the Supreme Court, upon giving an
III*] appeal bond with security; 'and au-
hence the appeal wa« taken, in execution of
the judgment of the appellate court.' The
rule of the District Court of Louisiana, there-
fore, follows the analogy of the laws of LouiS'
iana, being modified only so far as is proper to
suit the organ ixjition of the courts of the United
States, and to conform to the laws thereof.
The summary judfcment, therefore, waa strictly
authorized: ami the party eppellant had no
right to a trial by jury. In becoming a aeeu-
rity he submitted himnetF to be governed by
the fixed rules which regulate the practice of
I he court.
The judgment is affirmed with damage! attha
rate of six per rent., and costs.
It may be added, to prevent misapprehen-
sion, that there is also in the same record an
appeal taken to a decree of the District Court,
dissolving an Injunction to the judgment grant-
ed upon a petition in the nature of a bill
in equity. This appeal is not before ua; and
the decree being only interlocutory, and not ;>
final decree, it ia not the subject of an appeal.
This cause came on to be heard on the tryn-
arript of the record from the District Court of
the United Rtates for the Eastern District of
l.oiiisianB, and wan arpied by counsel ; on con-
sideration whereof, it is adjudged and ordered
bv this court that the judgment of the said
District Court in this cause be, and the aame
is hereby aHirnied. with costs and damagea
at the rate of six per centum per annum.
•THE UNITED STATES, Appellants, ["188
GEORGE J. F. CLARKE.
Grant of Florida lands by Spanish authoritiea
—conditional grant— Florida treaty and acta
of Congress as to concessions of land.
inled tc
r, 1817,
e of the Supreme Court of Esnt Flar-
lae B conceKBJon of land to Ibe appellee,
aim hj (Governor CoppEnEsr. In Decem-
A coneessloa on condlllon becomes sbsolute when
the coadJtIoTi li performed.
OD the petition of George J, F. Clarke, wss msde
on the ITlb of December. 181T. ot twcntj'-ali
thousand Bcrea of Isnil. In the places be sollclled In
bis netllton. nnd ■ camnli^le title wai mide ol
tweaCT-two tboimanil sorea, part of tbe same. In
the wbole «iQccaHi''n, wpre suld b; the iDpcilec.
formllT wllb the deeiee of ITtb of Dpcrmber, 181T.
and a complntr title (a the snuie wis msite br
Gorernor Copninspr. on Ihe 4ih nf May, IBIS.
Bt VHi CoiiBT: Tbe rlnlmant cannot svall
bimseir of the rrant ot the 4th of Mar. IBin. made
after tbe 24th of Jinunrt. 1B19. Ihe time Itmlted
liT the Florida Treaty. He must rest his claim on
the coocesaloD made on the ITtb of Decern her,
1B1T.
Tbe vsllditf o( CDnci-gslDna of land by tbe au-
1. Ree Tort- nf P-.-r-i-.re of LoiilstanB, artSi
.'^70. 573, B7B, B70. 590. BBT.
BtiPiEin CoDKT or tub Unrrtii Stath.
tkorltlct of Spain Id Rut Plorldk, li ciprcalT KC-
ocdUmI Id tbe tlorldi Yreat;, and Id tbe aevoral
-» of C(
bclorc tbe CDBimlBiilDQers apiwlnled
Of mat act. All tbe iolwfqur— —
Ject olaerve -" '
did not aicced a leasne
APPEAL from the Supreme Court of Ba«t
Florida.
The case was argued by Mr. Call for the ap-
pellanta, and hy Mr. Wilde for the appellee.
Mr. Chief Justice MaiihAll delivared the opin-
ioi] of the court:
Thia CAM ia in many reapecta limilar to that
which li*a bMD decided at this term between
laa*] the aame parties.' The appellee *flled
his petition before the District Court of East
Florida, aaaerting a title to twcntj-aix thousand
•ci'm of land granted h; Don Jose Coppinger,
Qovemor of that territorj, while under the do-
minion of Hla Catholic Majeaty.
The petition presented by Clarke to the Span-
ish governor, aska, is consideration of services
and aa a remuneration for lasses sustained, all
which he statea, twenty-six thousand acres of
land in the following places; twenty -two there-
of, in the Hammocks of Cuscoville and Chacha-
la; and the tour remaining at a vacant place
eallBd Yallabassa, on the weat of the River St.
On tha ITth of December, 1B17, the governor
paaaed a decree granting in absolute property
to the said Don George Clarke the twenty-sii
thousand acrea of land in the places he solicits
in his petition ; and a complete title was made in
December, 181T, to twenty-two thousand lying
in the Hammocks, known by the names of
CuBcoville and Chaehala. The petition filed in
Uie EKstriet Court states that twenty thousand
acres, part of thia tract, have been surveyed at
the place designated, and aold to John De Cen-
tralgo.
Tbe other four thousand acras were aurveyed
lo conformity with the decree, and a complete
title made by Governor Coppinger on the 4th
of May, 1818.
The court decreed the claim to be valid, and
reciting that twenty thousand acres, part of the
twenty-two thousand, had been on tbe same day
Mnflrmed to Moses E. Levy, on his petition for
January Term,
■ decldpd 1
B putallcBlloD d( t
ebaier mai Mrform. Uarka v. Maikg, 10 Hod.
ilB.
When a condllloD la once performed It Is thence-
forth enclrelr ooce, and tbe thing to which It waa
before annexed become* ahtoluie and wboIlT UD-
eondltlonal. Varmonl v. Bocletj tor PropHgltlan
•f tbe Gospel, 2 Paine, G4S.
Impllcatlan.
Where a grtat Is absolute In Its terma, and no
condition la attached thereto, the court cannot
tbe same, proceeded to decreo the rcmtdnlBg
four thousand acrea to the petitioner.
The United States appealed from this decrea.
Tbe only question not already decided,
which is made in tliis case, arises from the fact
titat tbe full title for the four thousand acrea of
land in controversy was made after the 24th of
January, 1818. Tbe petitioner therefore can-
not avail himself of that grant, and must rest
his claim on tha concession made the 17th of
December, 1617. That concession is uncondi-
tional, but tbe counsel for the United Statea
contends that it can give no valid title. The
argument is understood to have been applied to
concesaiona made absolutely, aa well as to those
made on condition, and the court will therefore
consider it as applicable *to both. A (*1T0
concession on condition, becomes absolute when
tbe condition ia performed.
The validity of concessions Is, we think, ex-
pressly recognized both in the treaty and In
the several acts of Congreaa.
Tbe eighth article allows the owners of landa
the same time for fulfllling the conditiona of
their grants from the data of the treaty as ia
allowed in the grant from the date of the in-
strument, and the Act of the 8tb of May, I82S,
requires every person claiming title to lands
under any patent, grant, concession, or order
of survey, dated previous to tbe 24th day of
.fanuary, IBIS, to nle his claim before the com-
missioners appointed in pursuance of that act.
All the subsequent acts on the subject observe
the same language; and the titles held under
these concessions have been uniformly confirmed,
where the tract did not exceed a len^e square-
The question is now open for discussion.
The decree is conSrmed.
This cause came on to be heard on the tran-
script of tbe record from the Suporior Court
for the Eastern IMstrict of Florida, and waa
argued by counsel ; on consideration whereof,
it is ordered, adjudged and decreed by thia
court, that the decree of the said Superior Court
in this cause conHrming the title of the claim-
ant be, and the same is hereby affirmed in all
respects.
•THE inriTBD STATES, Appellants, [•171
ANTONIO HUERTAS.
Grant of land by Governor of East Florida.
Id the 15th ol
petition to t!
Bi-ant of [and for Qfteen thousand a
Icea performed b; h'm, obtained a oerree oi ine
joveroor lor Ibf snme. The Isnd I* Oesorll^d In
petition psrllcur^arjj, and Ita location deslgnat
raise one bj Implication. Dnited States v. Besat,
10 Pet. 30e ; United States v. Bodman, ID PeL 180
Unperformed.
A condition •Fboll; unperformed, without strong
proof of lufflclent canae lo prevent 1^ defeata tbe
right of properly under the grant, and rendcra the
grant vofd. United Slutes v. Klngaley, 12 Pet. 476.
Approved aa s leading decision, made after tha
most mature conalderallon. and wtalcb has been tal-
lowed by all others coming within the principles
then, with so much care and accBrscj laid duwB.
United autes *. Wigglsa, 14 Pst. S84. 360, U.
TAKm T. TABvn R t
171
■• ■( the pIma itaatbet In the petltloo.
Mjm were executed In April, 11121, nod fuJ]
**■« laod were ertnfed In tlie ai ■•■
" " : The order -
the lind
rebended ]i
e ot the
■MhiDS not comprehended li
at Sepiember. IBIT. That
tfcoaund icrea ot land. Ijlng at the place described
k the petltloa.
The DlHtrlct Court decided that the claim was
Vmlld, and coaHrined It according to the turveya.
Bt thb Cooar: Tbla court coocura with the
mstrlct Court ao fnr aa teapi
tb* claim, but dlaapprovea ot tl
K the Utie to the Janda deicribed In the .
»ej« made In April, T
appear to conform to
injaaloa. under which
nod so
It dfclarea the ctnim ol the petitioner
ad rfversed to far aa !t conllrmed the luie
md la the ■uriej'B. The cauae was remaud-
e District Court, with dlrectloaa to cause a
to be made of the lands eontalDed In ths
OD, according Jo !(■ terns, and to decree
AFPEIAL from the Superior Court of Eaat
Florida.'
Tbia ease was ar^ed for the United States
hf Mr. Call, and bf Mr. Wilde and Mr. White
for the appellee.
Mr. Chief Juatiea Manliall delivered the
opinion of the court:
On the 16th of September, ISIT, Antonio
Rnertas, an inhabitant of East Florida, peti-
tioned the governor of that provinee for llfteer
thousand acres of land; on which the foUow'
ing decree was made;
"Id attention to what this petitioner repre-
17 2*] sents, and whereas 'the aervicee h<
mentioQa are well known, I grant to him in the
name of his majesty, and of his royal justice
which I administer, the fifteen thousand acret
of land which he solicits, in order that be may
posaess and enjoy them in absolute ownership;
and in testimony, etc."
The land solicited is described in the petitior
as lying on a stream running west of St. John's
River, and emptying itself into it at the dis
tance of about twelve miles south of the lake
George, and the survey to begin at about four
or fiv« milea west of the River St. John, so that
the said stream will divide the tract Into two
In December, 1S20, an order was obtained
for nrveying the land in four tracts; one of
two thousand five hundred acree, another of
one thousand five hundred, a third of six hun-
dred, and the fourth of ten thousand four
hundred acres. These surveys were exeiMited
in April, 1821, and full titles granted in the
same month.
These several tracts adjoin each other, and
appear to lie on ths stream required in the peti-
tion and directed by the decree. But the cer-
tificate of the surveyor omila to state that the
land lies four or five miles west of the River
SL John.
The order of survey, and the fuil title grant-
ed for the land surveyed could convey nntbin"
not comprehended in the decree of the leth of
September, 1817. That decree was for fifteen
1. — This case was decided at January Term.
IMU, bot the opinion ot the rourt vaa oot received
valDBC contalnlDf the Reports ot that term.
thousand acres of land Ijing In the place d«-
acribed in the petition.
The District Court decided that the claim
was valid, and confirmed it to the claimant
''to the extent, and agreeable to the bound-
aries, as in the grants for the said land, and the
plats for the four surveys thereof made by Don
Andrew Burgevin, and dated the 6th day of
April, 1B21, and filed herein, as set forth."
This court concurs with the fflstriet Court,
so far ss respects the validity of the claim, but
disapproves of that part of it which confirms
the title to the lands described in the surveys
made in April, 1821. Those surveys do not ap-
pear to this court to confom to the concession
made tn 1617, under which alone the petitioner
can claim. The decree of the District Court ia
affirmed so far ss it declares the claim of the
petitioner to be valid, and is reversed so far as
it confirms his title to the "lands de- [*17>
scribed in the several plats of surveys referred
to in the decree. And the cause is remanded to
the District Court, with directions to cause a
survey to be made of the lands contained in the
said concession according to the terms thereof,
and to decree the snme to the claimant, so far
as he has retained his title thereto.
'BBKJAMIM J. TARVER, Appellant. [-174
., alleged condition— probate — practio
AJahama. A bill wssjlled by ttt h
R, T„
t R. T, 1
cHIh
of
■111,
he
Journei. sod knowlog the UDCertalhCv ot
deemed It advisable to make a will." The v. _,
set out lu the bill, sod waa executed before three
witnesses, and devises all his resl aud peraonal
eaCate lo hia brother, B. T,, alter msklnr a amall
prnvlBlon for his sister and her son. K. T. per-
formed the Journey, and returned Bare. After the
decease. Id Alabama, of R. T., hIa brother D. T.
carried the luppowd will to the Count/ Court In
Dallsa County, Alabnma. to nhlcb the Intestste
and b1> brother bad removed, and where they hsd
purchased nud held Jolotly considerable real and
pereonal estate : and upon proof of the bandwrit-
lag of two of the BiibRcrlbloK nltnesaea who were
dead, the other wlIDe^H llvlnx >□ the State ot
Georgia, the wilt waa ndmltli'd to probate. The bill
alleles the probate (o lie void, prays that the — "
^rdln.
celled.
e lawi
I at i
! distributed sc-
that this ■.
Instrument tflklng effect as a
depend upon the event of the
t the probate. <
wlfi^nn
bound to proia It ;
SUPBEMK COUBT OF TIIE UXTTKD fiTAnC
Aa arlslnil bill wtIT ii<
t tbe probate of the n
commhted by the Uou
ttlDG tbe will li
, ch-ncery, _
ccoi-dlag
> the law ot AlBtmma.
^1
APPEAL from the District Court of the
United Stalea for the Southern District of
Alabama.
The appellees, ciCizeni of the State of Georgia,
nied tlieir bill in the District Court of tbe
United Statea for the Southern District of
ITS*] 'Alabama against the appellant, Mason
Gilliam, and Jolin Gilliam, her son, stating
that they and the defendants were the lielra-at-
lan of Kichard Tarver, who died in the year
1827, that the deceased in 1819 made a will,
which they assert to be a conditional will, and
which thej exhibit; which they also state was
not considered aa a will by Itichard Tnrver at
the time of hia death. That the prinripnl
devisee id. that will, Beniamin Tarver, one of the
defendants, has proved the will in Dallas
County, by proving the handwriting of two ul
the subscribing witnesses, who were itrnd; the
other being out of the State; and thai llie pro-
bate thereof is void; that the said nenjiniin lins
taken possession of all the dcceasi'il's laiiils ami
effects; and they pray an arcoiint of the r>-nl
and personal estate of the testator, anil the (imp
at which it was acquired; ami "that the M'ill
'-'-■-- ---ty of llip ill.-
1 the laws of
Alabama."
The copy ot the will and of the probate an-
nexed to the will, were aa follows:
"Will. In the name of God, amen! fif-
ing about to travel a cnnsiderable distance, and
knowing tha uncertainty of life, think it ad-
visabte to make some disposition of my estate,
da make this my last will and testament. It is
my will that my brother, Benjamin J. Tarver,
■hould have all my estate, both real and per-
sonal, except a competent maintennnce for my
sister Gilliam and her son John Gilliam, and
further, he should give the said John Gilliam
a liberal education, and then carry him tliroiig))
the study of law or physic, as he may think
best; and at the age of twenty-one, give him,
the said John Gilliam, twenty -five hundred
dollars in money or property.
"Given under my hand this 3d May, 1819.
"Richard Tarver, [L. S.]
"Test: W. Lyman, William Booker, William
H. Carter.
"Witnesses: D, C. Patterson, William F.
Hay.
"Probate of will. Orphan's Court, Novem-
ber Term, 1827. State of Alabama, Dallas
County. Personally appeared before me, James
Suffold, Judge of the Counly and Orphan's
Court in the county aforesaid, Joseph Scott,
who being duly sworn, saith that he knows the
lit'] handwriting of William Booker, 'and
David C. Patterson, who signed thpir names aa
witnesses to the within will, that he has seen
them write; that he believes the signatures ap-
pearing thereto was theirs, and each of their
proper acts and signatures; that to hts certain
knowledge both Booker and David C. Patter-
son are now dead. Joseph ScotL
'Sworn to, and subscriliod before me, this
ih Jay of November, 18-27.
"James SufTold.
'I3Ih November, H. Vandyke, Clerk, re-
corded."
le answers of tbe defendant Id the District
Court declare that Richard Tarver made hi*
will and testament, as stated in the com-
nent'e bill, but deny that there was a con-
dition annexed thereto. The defendant atates
that the testator and himself lived together and
employed their capital together, and for their
joint benelit, wltli an eipicas agreement that
the survivor should have the whole, which waa
the joint property of both. At the time the
testator executed the will referred to in (he bill
of the complainant, he e>:n'utrd a will substan-
tially similar in all rcsp..-rts to that executed by
Richard Tarver. The answer asserts that the
probate of the will ia In full form and was
regular, and that there is no sufficient cause
shown in the hill for the exercise of equitable
powers by tlie court.
The District Court gave a decree in favor
of complainants, on the ground that the will
of Richard Tarver had not been admitted to
probate by the proper Orphan's Court; and of
course that it did not apppar to the court that
lie made a will. And also that this proceeding
uns instituted to set aside the will of Richard
Tarver, and no title which tbs respondent
might have to the property of Richard Tarver
can be set up in the case, except such as may
be derived from the will. The defendants ap-
pealed to this court.
The case was argued by Mr. Key for the
appellants, and by Mr. Gamble and Mr. Wilde
tor tbe appellees.
Mr. Justice Thompson delivered the opinion
of the court:
This case comes up on appeal from the Dis-
trict Court of the United SLatee for the South-
ern District of Alabama.
•The pleadings are very inartificially 1*111
drawn, and do not, probably, present the case
in such a manner as to enable the court to
dispose of all the questions intended to be
brought under consideration.
The bill seta out that Richard Tarver, late
ot the County of Dallas and State of Ala-
bama, departed this life in that county, in the
year 1827, leaving at the time of his death a
large real and personal estate, and leaving
three aisters and the defendant, Benjamin
Tarver, his sole heirs-at-law. That the said
Richard Tarver, in the year 1619, being a citi-
zen ot Georgia, and possessed of a large estata
In lands, made a conditional will, in which he
recites that being about to take a long journey,
and knowing the uncertainty of life, he
deemed it advisable to make a will ; and
thereby declared that he left all his estate, real
and personal, to hia brother, Benjamin Tarver.
And making some small provision for his sister
Mason Gilliam, and her son John, all which
prayed to be cunsidered as a part thereof. The
bill alleges that the said Richard Tarver per-
formed the journey, and returned safe. Some
statements are then made with respect to tlta
property of the deceaaedj uid the UH alleges
Iboi
TABvn V. TABvn n t
17T
that h» and tlw dsfradatit, Brajamin J. Tftrver,
Uted together, and emplojred their capital, of
•verr deacription, jointly. That B«njaniin, on
tha deceaaa of hil brother, took poBHeBEion of
all Ua eitata. That the said iiipposed will
porporta to be attested by euadr; pcraoiu &s
witnesaea; the survivor of whom reaidei in the
State of Georgia. That the uid Benjamin
csnied the suppoead wiU before the County
Ooort of Dallas County; and upon the proof
of the handwriting of two of toe lubscnbing
wltnesBCB, who are dead, the other still livinu
in the State of Georgia, the will was admitted
t« probate, and the bill alleges that aucb pro-
bate is void. The bill then prays that the will
inay be cancelled, and the estate distributed
according to the laws of Alabama j and that
tbe defendant may set forth the full amount
of the property of the aaid Richard, not only
what he had at the time of his death, but what
ha had at the date of the supposed will, de-
acribing the property at each of these times
Krticularly. An amended bill was afterwards
id, stating that the defendant was attempting
to aet up aaid hi)]; and charging that it was
17B*] conditional in its inception, 'and that
the condition on which it was to take effect
has not happened.
Sereral answers were flied in consequence of
exceptions taken and allowed by the court.
These answers contain much matter not ra-
aponsiTe to the bill, and which was not prop-
erly before the court. But it Is denied that
there was any condition annexed to the will,
other than is shown by the will itsel/. The
defendant admits that he procured the will to
be proved and admitted to record in the Or-
^lan's Court of Dallas County, and alleges that
the probate of said will remains in full force,
not revoked, or in any manner set aside; antf
which he is informed and believes is in all re-
apecta legal, and prays the beneflt of the an-
aweia as a demurrer to the bill. The court de-
creed a distribution of the estate among the
legal representativea of the deceased, ano the
cause comes here for review.
The questions put in issue by the pleadings
1. Whether Iticbard Tarver, at hie decease,
left the will in question aa a valid and oper-
ative will.
2, Whether such will was duly admitted to
record in Dallss County-
It is a little remarksble that the final decree
in the cause does not touch either of these
questions put io issue by the pleadings; but
proceed* at once, on the report of the maater,
to make distribution of the estate among the
heirs-at-law of the deceased. The judge, in
Us opinion, does notice these questionBi hut
doea sot decide whether the will was condi-
tional, and had become inoperative, by reason
that the contingency on which it waa to take
effect bad not happened; but puts his decision
i.pon the ground that the defendant was bound
to establisb the will; and that this could be
done in no other way than by the production
of a valid probate. He observes that this
Eroceeding is instituted to set aside the will of
ieliard Tarrer. and no title which the rc-
•poodent may have to the property of his de-
ceased brother can be set up in this suit, except
SUA am nuy b« <ierit-ed from the will. That
if the eomplainanta had even admitted tka
existence of the will of Richard Tarver, yet It
would be indispensable to the title set up by
the respondents, through that will, to show
that it had been duly admitted to probata, bj
the proper orpbao'a court. The judge then
goes into an examination whether the will
'had been duly admitted to probata, [*1I*
and coming to the eoneluaion that it had not,
he declares that it does not, therefore, appear
to this court that Richard Tarver made any
will. He seems to rest his opinion upon tha
decision of this court, In the caae of Arnistrong
V. Lear, 12 Wheat ITS, where it U said that
we cannot receive any other evidence of there
being a will than such as would be sufficient
in all other eases where titles are derived under
a will; and nothing but the probate, or lettera
of administration, with the will annexed, are
legal evidence of the will in all oueations r«-
specting personalty. But the nut, as thera
laid down, doea not apply to this easa. Tliera
the complainant aet up the will as the aourea
of his title, and was bound to prove it; which
must be done, say the court, by the probata,
which must be set forth in the bill. But In
the present case tha inquiry was whether tha
instrument in question was a valid will or not)
and the complainant had set out a copy of that
instrument for the purpose of showing that it
was not a valid subsisting will, because It ap-
peared upon the face of it to be conditional,
and then to show that such condition or cod-
tingency had never happened. The defendant
was not the actor, seeking to enforce any right
under the will. And he could b« unrler no
obligation to produce any probate. The com-
Elaiiiant having set out tne will, everything
y bis own showing waa before the court
that was necessary to present the question
which was to be decided. There was no evi-
dence impeaching this will, except what ap-
pea.rB on the face of it, and is rested entirely
on the introductory part of it. It begina in
this manner: "Being about to travel a ecm-
siderable distanea, and knowing the uncertainty
of life, think it advisable to make some dis-
position of my estate, do make thla my last
will and testament," etc.
And it is contended that the condition upon
which the instrument was to take effect aa a
will, was his dying on the journey, and not
returning home again. But such is a vary
strained construction of the instrument, and
by no means warranted. It is no condition,
but only assigning the reason why he made .
his will at that time- But the instrument's
taking effect as a will is not made, at all, to
depend upon ths event of hia return or not
from his journey. There is no color, there-
fore, for annulling this will on the ground
that it was conditional. 'And the bill ['180
cannot be sustained on the allegation that tba
probate is void. An original bill will not Ua
for this purpose. If any error was committad
in admitting the will to probate, it should
have been corrected by appeal. This Is pro-
vided for by the law of Alabama, wnich
makes the County Court in each county an
orphan's court for taking the probat« of willa,
etc.; and declares that if any person shall be
aggrieved by a definitive sentence or judgment,
ot final decree of the aaid Orphan's Court, ha
•S
ISO
lilJFKEUB COUBT OF THE UNITED STATM.
m»y Bppe«J therefrom to the next term of the
Supreme Court in chancery, or in the District
of Waahiaelon, to tbe Superior Court of that
dUtrict. The law also provides that any person
interested in such will may, within tive years
from the time of the Urst prolate thereof, file
a bill in chancery to contest the validity of the
same; and the Court of Chancery may there-
upon direct an issue or issues in fact, to l>e
tried by a jury, as in other cases. But that
after the expiration of five yeara, the original
Erobate of any will shall be conclusive and
inding upon all parties concerned; with the
uaual savings to infants, femes covert, etc.
Tou<min's Dig. 887. We think notliing has
been shown to impeach or invalidate this will;
and that the bill cannot be auxtained for the
turpose of avoiding the probate. That should
Bve been done, if at all, by an appeal, ac-
cording to the proviaioQS of tbe law of Ala-
l)ama. We do not enter at all into an inquiry
as to the operation of this will, with respect
to the property that will pnaa by it, nor touch-
ing the right by aurvjvoriiliip, as set up by the
defendant in the court below. These questions
t properly before us upon the plcailin^^a
a the 0
inted ii
us satisfactorily to dispose of tho^e
questions. We think, therefore, that tlie de-
cree of the court below must be reversed, and
ttie bill dismissed without prejudice, so as not
to preclude the appellees from asserting their
right to any part of the property, if any such
there be, which doea not pass under the will of
Richard Tarver.
The decree of the District Court is according-
ly reversed, and tbe bill dismissed without
prejudice.
This cause came on to he heard on the tran-
script of the record from the District Court of
181*] the United States for the Southern •Dis-
trict of Alabama, and was argued by counsel;
on consideration whereof, it is ordered and de-
creed by this court that the decree of the said
District Court in this cause be, end the same
is hereby reversed and annulled, and that this
cause be, and tlie same is hereby remanded to
the said District Court, with directions to that
court to dismiss the bill of tb« complainants
without prejudice.
THE UNITED STATES.
for cash, 1
Jaws or 1.
b7 B. to tl
their hands— United States not bound by local
laws — rights of mortgagee of insolvent— ^vi-
Loiilslnna. L. E. Bronn. a dfbtor to tbe United
Stnles on bond, jjecante innolrent. bdiJ under the
of tail
pei'sonal. and bo Id tbe sami-. part
1, auu Murt an credit ot one, two. Bud tbree
The Lulled SlaU-a iDBliluled suits on the
ooDds against L. K. It., aud obluliied JudgDients Is
the District Court of the Uofted Stales for tUc Dis-
trict of l^iilslana. The effecta of the Innolveut
were administered bv (he syndics, accardlDg to tbe
)ulBlana, The United Slates look no part
tnrN-iiiapa. but a uotiee of the dtbts due
ted Slates was fiven (o the syndics
f the di'bts of B. to the United
law bI»I»B a rigbt to priorlcj o(
imenced afiBlnat Ibcm before the
ution of the first iDstallmcDt at
jilr was conflimed by the I'arlsb
pBua. The wbol.- iifoccc<t3 of Ihi
(f.UUO : Ibe morii:u);i'G were about
Iclent to dls-
aiiti, and all tbe dobts due to
Ived until after Ibe Ju<^i;incotB
the otber after t
rendered.
The court beld that
to tbe United SUtea fi
less funds bad actually
moiety of them was I
iDdfcment of tbe (Jul
doea not Judicially api,...
they had fuails on whlcb tbe United .' .
entitled to Judffmenl. If the remalnlQC moiety o
the notes has since been [>ald. tbu United ^— *-
will then have - ■ -■ ■■- •-- -■- ■-
ceedlngs In the Parisb Court nor were tbey bound
r that
._ _ of the Stale could and did not bind them In
their rights. They could not create a piiority In
favor 0^ other creditors In cases ol Insblvency.
which should supeistde that of the United SUtes.
tlon to the adiJilsBlou of evidence was not property
the Bubjeet of a bill of eiceptlon.
Tbe prl(-'- -- ■■- '^ ■--" —
duty of the a;
, -, __i It was tl
'e made known thf-^c detr
estates. But If there be any deficiency In tbe pro
cecds o( any particular estate, to pay the morlcaai'i
thereon, 'the mortBsgeeB thereof canuot [•18!
come la upon the funiln aad proceeds of the salei
of the other estates, eicept ns gpnei-al creditors.
The bill of eiccptlooB stated that during the trla
of tbe cause in the District Court, the cuiinsel fo
talaed In tht case of Tbe Unlti
confer a priority upon
m supersede that con-
by tbe Bintutes of the
ates V. Duncan, 4 Uc-
_ ..e Unl'fed States are not affected by dtachsraes
nnder Slate Insolvent taws. United States v. Wil-
ton, 8 WbeaL 2C>3 : Qlenn t. Uumpbreys, 4 Wash.
C- C. 424.
The nie laid down l> Um above e
that
e the <
ecldes
rltboul the Intervention of a jury, tbe admission
of IllGgnl teBtlmony. even If material. Is not ot It-
self a ground for reversing the Judgment, nor Is
It properly the subject ot a bill of eiceptlons. If
ildeDce appears to have been improperly admitted.
.. .._.. ^ _p||j ,|,jg|.) (I jQj proceed ta
the appella
decide tb* case aa U It i
'ject II, ano proceea <
a not In the record."
Field ct al. *. Tm Ukitod States.
of Thr L'ulird Siaiiit v. John IlruuD. Sra., aucl
L*nU E. liruwu, will also offerrd, and w4« al>
■■- -■■- — ■"■ ■■ — B wa* rmwHy ad-
tlM UoUcd Slut
a of the drbta due to
In the District Court of the United Stntea, on
the 3<nh of March. 1B31, the attorney of the
Oiatrirt Hied a petition of complaint, on be-
half of the United Statea. against Seanltin Field,
Samuel J. Pi'lcrs, and Thomas Toby, reaidin^
in the city of New Orleans, ayndica of L. E.
BroM-n; atnling that one Lewia E. Brown, of
the oitj of New Orleang, on Che 27th of October,
IS'iO. eKe(-iit(^d a Certain bond to the United
States in Ilie sum of $1,306.20; and suit having
been brouRlit in the said hond, judgment in
favor of tiic Uniti>d Slntes wsB obtained on it
on the 22d of December, 1S30, for the amount
thereof, to be aatisfled with the payment of
(«;3-i.l0 with interest, etc. That the said Lewis
E. Ttrown foiled and became insolvent, and
made a vollinliLry aaaignment of all hii proper-
tv to his creditorB,onor about the 30th of April,
IH3'), under the Itkwa of Louisiana. That Sea-
man Field, Ssniuel J. Peters, and Thomas
Toby, were appointed syndics, or aasignees of
bis creditors; and in that capacity ha»e received
and taken pot>He«»ion of all the property, real
and personal, of the insolvent, and have sold
and dispozd-d of the same, to an amount far ex-
eeeding the debts due by him to the United
Stales. That nt the time ut Iheir receivinR and
taking pn^si :>t<:on of the luiid property as afore-
said, thi-y wril knew of tlie tiiistunce of the
debts due to the United ^lalei by Lewis E.
Brown; and that an Hmiinblc demand had been
made of them by the United States for the
184*) amount of the said jiidpnrii'nt' and of
the costs, but they have neiilected or refused to
pay the Bnme, or any part thereof.
The petition prays a citation to the defend-
ants, to answer the same; and that after due
proceeding they be condemned, jointly and
■ererBlly, to pay the amount due to the United
States.
Citations isaiied to the aeveral defendants,
who appeared, respeclivoly, and on the 17th of
May. 1831. field separate answers to the peti-
The ■n^'wers admitted that the respondents
ksd. in the capacity of syndics, taken possession
of the properly of L. E. Brown, by him as-
sizned for the beneAt of and distribution amonfc
hi^ creditors; and that they acted in the sHid
capaetty. in virtue of certain judicial proceed-
inS'< in the Parish Court for the parish and city
of Xew Orli-Jiiis, to which proceeiiiiiRS the an-
swers n-ferri;cJ: and sn exemplification of which
proreeiliniipt would in due time be e\liibited.
and which wore to be considered as part of the
That in virtue of said proceedinKS, under the
local taws of Louiaiana, the said property so as-
ti^ed wss sold ky the wid syndics on r credit'
ne, two, or three ye*r*i thkt out of the pro*
ceeda of sale, when the same shall be received,
to be paid certain privileged and mortgaged
I creditors, who sre preferred to the United
farther state that the respondents
bave no funds in their bands belonging to the
estate of L. E. Brown; the property having
bten so sold on a credit for promisaory notes
not yet duo or paid. They deny all other alle-
gations in the petition, or that the respondents,
as syndics, have done anything to render them
responsible under the laws of the United States,
or liable in any manner to the claim stated in
the petition of the United States, and pray a
trial by jury.
The answers farther state that the said syndics
sold the household furniture and other movables
of the eaid L. E. Brown at a credit of aiz
months; out of the proceeds of which they h&vs
fiaid law charges, house rent, and othar privi-
eged charges upon the estate preferred to the
United States; of which a particular account is
anne.ted to one of the separate answers Sled in
the case.
On the same 30th of March, 1831, the district
attorney filed *a petition in similar ["ISK
terms, stating that on a bond given by the said
L. B. Brown to the United States, for |1,3M,
OB the 3d of Dcember, 1820, a suit had been
brought on the 3d of December, IS30, and on
the 22d of the same month a judgment had
been obtained for the amount, to be satisfied by
the payment of 96117, with interest, etc., with
the same allegations of responsibilitiea on the
part of the defendants.
Another petition was filed at the same time,
stating that on a bond given by the said L. £.
Brown, on the 28tt| of October, IB2g, for the
sum of 11,264, ■ judgment had been obtained
on the SSd of December, 1S30, for the said sum,
to be satisfied by the payment of S632, with
interest, etc., and alao stating a claim on the
defend a nta.
Another petition was filed at the same time,
stating that on the 22d December, 1S30, another
judgment, on a bond i;lven to the United States
by L. E. Brown, wea obtained for the sum of
$1.0(10.00, to be satisfied by the payment of
$:'i30.4S, with interest etc; and on the same day
another petition was filed, staling that another
judgment had been obtained against L. E.
Brown on the 2Zd of December, 1R30, on ft
bond given by him for the sum of £1,39S, to bs
satisfied by the payment of {608, with interest,
etc.; both petitions alleging the liabilities of the
defendants. Other petitions were filed upon
other judgments on bonds of the same nature,
and for different amounts.
The whole amount of judgments slated in
these several petitions was SI 1.204,10; and
the real debt claimed to be due to the United
States on the same, amounted to (G,047.55,
with interest, etc.
On the 2d of June, 1S3I, in pursuance of an
order of the district judf^e, a detailed statement
of all the property received by the syndics or
Hssignees of Lewis E. Brown, and the sales
and ilispositions thcv had made thereof, wss
filed in court.
The sal en of the real estate and slaves wers
made, the former at one, two, and three yeara,
and the Ifttter at twelve months' uedit; for
SUTBEUI CODBT or TBE UxITED StAM*.
ISSI
wnlch Dotes were gjvcn, whicli would becomt
due Bt different periods, amounting to $39,-
000.63. The tableau of distribution of tlie Srst
installment of the estate, establiBlicd by the
ISA*] Parish Court in re.alion to tlie 'estate
af Lewis E. Brown, refirrcd to in the answers,
dated on tlie 3d of December, 1S31, wss stso
filed, and showed that the balance of cash in
the hands of the syndics, amounting to fO,-
S3S.70, had been paid as a dividend on (27,055
to the mortgage creditors of Lewis K. Brown.
The amount of the moneys received and dis-
bursed by the ■jndir'i, showing the balance of
$9,S3e for this distribution, was also filed.
On the 0th of Marcli, 1832, on motion of the
district attorupy, it was ordered that all these
suits be consolidatpd; and, by consent of par-
ties, trial by jury being waived, the cauae was
submitted to the court, on a statement Of facta
prepared by the parties.
''Statementa of facts by the counsel of the
United States and the defendants.
"Lewis E. Brown, at the time of failure and
insolvency, to wit, the ESth of May, 1830, was
surety on certain bonds given to secure duties
to the United States by Joho BrowD, Senior,
"k bond dated 27th of October, 1829, due
S6th of August, 1B30, amount of duties 8632;
a bond dated 27th of October, I82B, due 2Qth of
June, 1830, amount of duties $C32.10; a bond
dated 27th of October, 1B29, due 26th of Octo-
ber, 1830, amount of duties 1032) a bond dated
Sd of December, 1826, due 2d of October,
1830, amount of duties tesS; a bond daUd 3d
of December, 1629, due 3d of December, IS30,
amount of duties lOSS; a bond dated 3d of
December, 1829, due 2d of August, 1B30,
amount of duties (698; a bond dated llth of
January, 1830, due 9th of September, 1B30,
amount of duties $530.49; a bond dated llth
of January, 1B30, due 0th of November, 1B30,
amount of duties (631; a bond dated llth of
January, 1830, due Bth of January, 1S3I,
amount of duties (531.
"On all of which, with the exception of the
last mentioned, judjnnent was rendered against
L. E. Brown, on the 22d of December, 1S30,
for the aforesaid amounts, with interest at six
per cent, from the falling due of the bonds un-
18T*] til paid, with costs *of suit; and in the
last -mentioned bond a like judgment was ren-
dered on the 22d of February, 1831. On these
jud^^ments writs of fieri facias have issued
against all the parties, on which the marshal
has returned nulla bona, and nothing has been
paid by any of the parties on account of the
tame. John Brown. Senior, failed and became
insolvent, and applied for the benefit of the in-
solvent law of Laujeiana, on the lOth day of
June, 1B30. The aale of Lewis E. Brown's
property waa made by order of the syndics, at
Subtic auction, on the SOth of July, 1B30. The
efendants, as syndics, in addition to the sums
stated by them to have been received in the ac-
count hereunto annexed, have received from
the aale of the property of said Brown indorsed
promissory notes, secured by mortsrsf^e on the
Koperty sold, amounting to (24,8)18,60; one-
If of which fell due on the 31aC of .Itilv, 1832,
and the other half on the Slst of July, IB33.
The note stated in the account of moneys re-
ceivod and disbursed by the syndioa M Lewia
E. Brown to have been paid to the United
States was indorsed bv Charles Armstrong, and
wna paid at tlie Bunk of the United Slates,
where it was deposited for cnlleclion by Max-
tin Gordon, and paid by the syndics. The
United Stales have never, in any manner, ap-
"Lewis &. Brown failed and became Insol-
vent on the 20tb of May, 1830. On the 15th
of July, 1820, he mortgaged hotisrs and lots on
Canal Street to J. II. Field St Co., to secure
the payment of (.1,350.70. with ten per cent-
per annum interest from that date till paid.
"On the 12th of February, 1S20, Brown exe-
cuted another mortgage to J. H. Field &, Co.,
for S5,0UO on the same property, with same in-
terest as above. On the I8th of March, 1830,
L. £. Brown gave another mortgage to said
Field ft Co. for (745.16, same property and
same rate of interest. The first mortgage was
recorded in the recorder of mortgages' office on
the 16th of July, 1829; the second was recorded
on the 13th of February, 1S20; and the third
on the SOth of March, 1830.
"On the lOth of March, 1830, Lewis E.
Brown mortgaged said property and the rest of
his real estate to R. Ball &, Co. 'for [*1SS
(1,000, which waa recorded on the 17th of
March, 1830.
"On the 4th of February, 1830, Brovra mort-
gaged the houses and lots in Canal Street, and
lots Nos. 3 and 4 in suburb St. Mary, to Ogier
and Williams, for (3,300, which was recorded
on the 8th of February, 1830.
"On the Zd of March, 1830, Brown mort
gaged the housea and lota between Burgundy
and ilampart streets, and the lots in Canal
street, between Duaphine and Itampart, to
Peters and Millard, for (7,000, with ten per
centum per annum intereat from date till paid;
recorded on the 4tb of March, 1830.
"On the lOth of February, 1830, this last
propetty was mortgnged to Thompson and
Grant for (3,000. as all the lots in Canal, be-
tween Burgundy and Dauphine streets, and re-
corded on the 20th of February, 1830. Theiw
existed on the property of said Brown the fol-
lowing sums due on original purchase money.
and price of the property surrendered by him
to his creditors, and for which said property
waa mortgaged, and other mortgages were duly
recorded, bemg prior to his insolvency, to wit,
the amount of a note in favor of the heirs of
Jones, for the price of the lot between Bur-
gundy and Rampart streets, in C«nal Street, in-
cluding protests and interest, 81,056.97! ditto
to William M'Cawiy, price of lots in Canal
Street, between Dauphine and Burgundy
streets, (850, dated in 1829; a note due to the
United States for (333.33, dated 182S, for a lot
OB New Levee Street. Besidea this, the syD-
dics have paid other debts dua by the estate of
said Brown, as detailed In annexed record mak-
ing part of this statement. On the 16th of D«-
cember, 1831, the tableau of distribution, in-
cluding the list of Buma paid as aforesaid, was
Anally confirmed by the Pnrish Court for the
parish and city of New Orleans, after doe pro-
ceedings having been previously had thereon."
On the 8d of December, 1830, the narahat,
•etlng under writa of fieri facias, issued on the
FiEij) KT Ai. V. Thk Uritb) Statbs.
Mfaral judgments a^init Lewis B. Brown
aeized tlw funds *.ad property in the posaeasioi
frf the Bjodica, or aisignees of LewiB E. Brown.
■nd gkve notice to tbem, personatlj', of the
acizure of said funds in amount sufGcient '
■■tisfj the three several judgmentB.
189*] 'Job Wilson, the ajndie of John
Bro«n, Sen., bad under bit control notes snd
Other assets to an amount exceeding the dept
due by John Brown, Sen., to th« United States.
Tboae notes were not yet due, but were con-
ridered good, and would be applicable, when
(Mid, to the satisfaction of the judgments
dared against the said Brown. These r
were deposited with the district attorney, who
was also acting as the attorney of the said syn-
dics, but had no authority to dispose of tnem
to satisfy the United States.
On the 0th of January and 21st of February,
1S33, the causes came before the court, and
were finally disposed of on tlie latter day. The
counsel for the defendants, on the trial, ten-
dered tfae fot lowing bill of exceptions, which
was signed by the district judge:
"Be it remembered that, during the trial of
this cause, the counsel for the plaintilTa oITered
to prove, by the marshal, that he hsd made a
a^zure, or given notice that he sciiied in the
hands of the defendants any funds in their
kands, to a sufficient amount to satisfy the judg-
ment obtained in the case of Tbe United States
w. John Brown, Sen., and Lewis E. Brown. The
eouDsel for the defendants objected to this tes-
timony as being contrary to the statement of
faeta made in this case, where it is slated that
a return of nulla bona had been made in said
ease, and because the act was done in a case to
which the defendants were not parties, and be-
cause the best evidence whs notice itself, or
tru« and proved copy thereof, because, if any
■ueh seiEure or notice was made or given, that
it should appear from the official return of the
(narslial.
"The counsel for the plaintiffs then offered
tha return of the marshal in tbe said case of
The t7nited States v. John Brown, Sen., and h.
B. Brown. This the defendants' counsel ob-
jected to, because the writ which issued in thai
case WEU ex-parte, and these defendants were
Dot parties, directly or indirectly, to the said
(Me of The United States v. John Brown, Sea.,
and L. E. Brown, and that the same was otlicr-
"These objections were overruled by the
court, because the testimony was considered
pertinent and legal ; and also, because, previous
to the introduction by the district attorney of
he testimony heretnfore referred to, the defend-
IftO*] ants had been 'permitted to amend the
■litement of facts by proof of matters notstat-
•d therein."
The court gave the following judgment for
the United States:
"The court having maturely considered these
casea, do(h now adjud<.'e, order and decree,
tbat judgmrnt be entrred Up in favor of the
United States apiinst Samuel J, Peters, Sea-
man Field, and Thomas Toby, jointiv and sev-
erally, for the sum of $.'3,661.55, with interest
thereon at the rate of six ppr centum per an-
num, from the foHowing dates, to wit: on
983210 from the Z6th of June, 1B30, until paidj
on <797 from tha Sd of August, 1S30, aotil'
paid; on $G33 from the Seth of August, ISSft
until paid; on $330 from the 0th of Ri-ptembet,
1830. until paid; on St>OR from the 2il of Octo-
ber, 1830, until pnid; on $032 from the 26th of
October, 1H.10, until pnid; on $J31 from the 0th
of Novemher, i830, until paid; on $608 from
the 3d of December, 1830, until paid: on $531
from the Otb of .lanuary, 1831, until paiil; to-
gether with all the costs which havi> accrued
both before and since their coneolidntion.
The following is the material portion of the
opinion of the district juilae, read at the time
of the rendition of the aliove final deerce, and
filed in the clerk's ofHce of the Eastern District
"The United States v. The Syndics of L. E.
"On the 30tb of March, 1831, the attorney
of the United States instituted nine stparate
suits against S. Field, S. J. Peters, and Thomas
Toby, the syndics of L. E. Brown, founded on
fourteen judgments previously obtained against
John Brown and his securities, of whom Lewis
E, Brown was one, on custom- house bonds for
duties. The suits against the syndics are con-
stituted under the provisions of the sixty-fifth
section of the Duty Act of 17B!). The Dhj--t of
these actions ia to mnke them personally liable
out of their own funds to the United States for
the debt due to the latter by the insolvent, L.
E. Brown, for having, as is alleged, improper-
ly paid to others moneys out of the estate of said
Brown, which ought to have been paid to the
United States as a debt having priority.
"On the 17th of May, 1831, the defendants,
i>y their counsel, 'filed separate an- ['191
swers of tbe syndics to each of the petitions of
the United States, all in substance tbe same,
by which Ihey admit that they are the syndics
of L. E. Brown, and in that capacity hava
taken posneHsion of his estate. The answers
" n state tlia.t tfae defendants sold, as they had
ight to do under the laws of Louisiana, the
property of the insolvent on a credit of one,
' tvo, and three years, which, when due, they
liege they have a right to pay to certain privi-
leged and mortgaged creditors, as being pre-
ferred fo the United States. They then say
they have no funds belonging to the estate of
L. E. Brown ; all the property ceded by him
having been sold on a credit, and for which the
notes taken are not due. They then admit that
they have sold the household furniture, and
certain other movables of the estate of said
Brown, for an amount not statod, which 'has
been received and paid over in law charges,
houas rent, and other chnrc's privileged upon
said estate, and preferred to the United Stales,
stated in an account annexed. The re
nder of the ansn-ers is a general denial of
the allegations of the ptaintifTs' petition, and of
their personal liability to them.
"All thene suits were consolidated on the 0th
of Karch, 1833. and in that shape submitted to
for adjudication; which, therefore, I shall
t as one action. The following facts have
been stated and agreed upon by tlie parties:
That judgments were obtained against L. E.
Brown, on the en»tom-liou»e bomis, nn the 2-2d
of December, 1830, with interest thereon, at
the rate nf six per centum per annum from the
date of their falling due; that writs of fieri
facias were iasued against all tbe parties, on
IBl
ScPKME CouBT or TBI Unirm Statu.
which tbe marsliAl hai returned nulla bon>, and
nothing lias been paid by any of the parties;
that John Brown, the principal in these bonds,
became insolvent, and applied for the benefit
of the insolvent law of Louisiana on the 10th
of June, 1830i that the sale of Lewis E. Brown's
property was mode by order of the syndics,
these defendants, on the 30th of July, 1830;
that the defendants, as syndics, in addition to
the sums stated by them to have been received,
In the account current annexed, have received ,
from the sale of the property of said Brown,
Indorsed promissory notes, secured by mort-
gage on the property sold, amounting to $24,-
eU8.60, one half of which was due on the 31st
IBS'] of July, "1832, and the other half will
be due on the Slst of July, IB33; that the
United States have never in any manner ap-
peared in the proceedings had in the Pariah
Court in relation to the insolvency of L. E.
Brown; that L. B. Brown became insolvent on
the 2Bth of May, 1830. On the 15th of July,
182l>, he mortgaged houaea and tots in Canal
Street to J. U. Field & Co. to secure the pay-
ment at the sun of {5,359.70; on the 12th of
February, 1B29, he executed another mortgage
to J. H. Field A Co. for ta.OOO on the same
property, with intereat on both at the rate of
ten per centum per annum; on the IGth of
March, 1830, he gave another mortgage to said
Field for $745. IB, on the same property, with
the same rate of interest; on the 10th of March,
1830, he mortgaged eaid property and the rest
of his r«al estate to R. Ball &. Co. for $1,000;
on the 4th of February, 1830, he mortgaged
the houses and lots in Canal Street, and lots
Nos. 3 and 4 in suburb St. Mary to Ogier and
Williami for $3,300i on the 2d of March, 1830,
he mortgaged the houses and lots between Bur-
gundy and Rampart, and the lot* in Canal, be-
tween Dauphine and Rampart streets, to Peters
and Millard for $7,000; on the 19th of Febru-
ary, 1830, the last property was mortgaged to
Thompson and Grant for $3,000. There exist-
ed on the property of said Brown surrendered
to his creditors, as the original purchase money
and price of the property, and due to individ-
uals, about the sum of $2,000, for which his
!>Toperty had been mortgaged long before his
nsolvency.
"On the 16th December, 1B31, the tableau
of distribution was finally confirmed by tbe
Parish Court.
"At the opening of this cause the court per-
mitted the defendants to add to the statement
of facts, that the attorney of the United States,
as counsel for the syndics of John Brown, has
now tn his possession good notes sufficient to
pay the debt of the United States; and the court
also pprmitled the district attorney to prove by
the marshal that thesa defendants had due no-
ttc« of tbe debt due to the United States by L.
E. Brown before making any payments to his
creditor*. The tableau of distribution exhibit-
ed shows that the syndics did not consider the
United States as creditors of L. E. Brown, in
an much as they are not put down as such
193*] "'With these facts before me, I am
called upon to adjudge whether or not the de-
fendant* are peisonaTly liable to pay the debt
due to the United States. Both parties have
ehleflj Tailed upon th* authority oi tha cMe of
Conard v. The Atlantic Insurance Company,
decided by the Supreme Court of the iJoftcd
States, and reported in 1 Peters, 386. That
case, however, diiTer« materially from thia.
There tbe dispute was, whether the property
seized upon by the marshal belonged to tb*
United State* or to the Insurance Company.
Here there is no contest about the estate of
Brown having passed to the syndics, and that
it was his estate when so passed; but whether
his syndics have *o managed the trust confided
to them as to lay themselves individually liable
to the United States. The case, however, cited,
establishes some doctrines applicable to this,
and especially one that is not denied by the at-
torney of the United State.B, that bona Iid«
mortgages of property executed before the in-
solvency of a debtor to the United State*,
devests the mortgagor of his property, and, a*
it has been decided that the United States must
seek their pay out of the estate of their debtor,
such property cannot be reached by them.
According to this principal, there is apparently
on the face of these proceedings a sum m
about $27,000 secured to mortgagees, and be-
yond the reach of the United States.
"But the district attorney contends that, na
all these are special and not general mort-
gagees, it was incumbent on the dpfenilants to
have shown how much each property mort-
gaged sold for, in order to ascertain whether
anything remained over and above for ths
United States. That the defendants have no
right to add the amount of mortgaged debt to-
gether, and then say the aggregate exceeds tha
debt due to the government; as, for instanc*(
one man has a mortgage for $I5,0U0, and tb*
property mortgaged sold for only $10,000:
another has a mortgage for $10,000, and th*
property sold for $15,000; on this suppoiiition
the aggregate of mortgages would be S~a,0O0
and the total amount of sales would also b«
$25,000. In such a case it would appear tliat,
as the whole of the sales of property was cov-
ered by privileged claims, nothing would re-
main for the United States. But he insists that
the fallacy consists in this, that, in the first
case, the mortgagee must (ubmit to a loss of
$5,000, 'his mortgage not reaching any [•1»4
other property; and, in the. latter case, the
mortgagee having hia claim satisfied by th«
payment of $10,000, the remaining sum of
$5,000 must go to the United States, in prefer-
ence to those holding special mortgages on
other property. This position I taken to be im-
pregnable. But were it otherwise, how stand
the facts of this easel
"It appears from tbe exliibits that the de-
fendants have sold property to the amount of
upwards of $40,000 Belonging to the estate of
L. E. Brown, and the mortgaged debts they
have paid only amount to about $27,000, leav-
ing a balance of $13,000, which is more than
double the sum due to the United States, which
they have paid to other creditors on the ground
that these creditors bad a privilege on the com-
mon fund in virtue of the laws of this State,
and as the decisions go to show that the
United States had no lien for their debts under
the sixty-fifth section of the Duty Act, their
priority of payment therein mentioned must
yield to the privileges given by tlie laws of the
St*ta. It wiU not, I Uunk, be denied that actt
Peter* »
FuLD Ki u. V. The Uitrnw States.
IH
ml Oaagnar paarcd In purauknce of the Con-
stitution, wwen in conflict witb the St»t« lAwi,
■ult prevail. It has never been doubted that
tbe l>w under consideration is conBtitutionnl.
Now it •>¥■, 'in ell eases of insolvency, or
when my estate in the hands of the executors,
•dministrstors, or assignees, sfaall be insufficient
to paj all the debts due from the deceased or
intiolvent, aa the case ma; be, the debt or
debts due to the United Slatet, or say such
bond or bonds, shall be first satisfied, and any
executor, admin istnitor, or assignee, or other
person who shall pay any debt due by the per-
loa or estate for whom or for which they lire
acting, previous to the debt or debts due to the
United States from such person or estate bciug
Br»t duly salisfled and paid, shall become an-
swerable in their persau and estate for the debt
or debts due to the United States,' etc. Now,
here we iiave the case of an insolvent who is
unable to pay all of his debts, whose estate has
gone into the hands of assigneee, and who
have not paid the debt due to the United
States, but have paid others in preference.
"If the liens established by the laws of
Ltniisiana to attach after insolvency are to have
Ita'] a preference over the debts due to 'the
United States, then the State Legislature has
deprived the general government of nearly alt
the privileges secured to it by the Act of 1799,
and may by future legislation deprive it of all
of them; and all that may be done by a State
which was not a member of the Union until
thirteen years after Congress so legislated.
"Tbe doctrine of privilege in Louisiana may
be very well as between her own citizens and
other individuals who may choose to come
lito her tribunals ; so far her legislation is valid,
but she eannot content the (•eiieral government,
or eomppl it to submit to the decisions of her
courts in a case like this, in which Congress
has Epeciliod the rights of the United States.
Tlie hardship of the rase was much and ably
inRistfsl on in ir^umcnt, but I do not view it in
tliat light. Every citizen is bound to know the
law of the lami, and if State legislatures will
pn»* taws which cannot be enforced as against
the United States, and thereby entrap the citi-
un, he has himself and them to blame, but
cannot censure the jicneral government which
had previously told both them and him that the
interests of the whole are paramount to those
of the individual, and especially in the collei'-
tion of the very money which is indiapL-nsable
to the pxi'-tence of the Reneral government.
"^t was innisted, also, that if the charges in-
cident to the surrender of an insolvent's estate
have not a first privilege, the officers of the
courts would not render their services. What-
ever necessary court charges are incurred in
such ruses ought to be paid tirst; and the
United States must be postponed to such cred-
itors, on the same principle that, out of the
proceeds of a vessel forfeited to the Unitc<!
Slates must first be paid seamen's wages nni!
supplies furnished, be^Huse. without such aids.
nothing, probably, would be aaved to the gov-
ernment. But after an estate has passed into
the bands of assignees, any debts they may pay,
olhiT than rourt eharfics and privileges exist-
ing antecedently to the failure, to the prejudice
of the United Statc>, are payments made in
their own wroug. According to this view vf
» It. ra.
the subject, a number of items charged- as paid
to individuals, In the tableau of distribution,
liave been wrongfully paid; and, for the rea-
sons assigned in a former part of this opinion,
tbe application of the general fund to the piiy-
ment of special mortgages was illegal; hut it is
sufficient, 'to entitle the United States ['H*
to recover in this action, to show that the syn-
dics have, to the prejudice of the government,
paid one dollar wrongfully; for, by the statute,
if such persons pay any debt impi-operly, they,
ipso facto, lay themselves liable to the United
States for so much.
"If this case had been tried on the issue
made by the answer of the defcndanta, it would
have been incumbent on the United Statea to
have shown how much tha syndics hod wronjj-
fully paid previous to the institution of this
suit, to enable them to recover that much, for
they could not have been made liable in this
action for anything done by them after its in-
ception— that would have been the subject of
another suit; but tbe defendants, by their ad-
of facts, and by the documents they
hole proceedings, first and last, in issue, and
the ease is now prosecuted as if all the payments
they have mode bad been made before suit
brought.
"Now, a bare inspection of the liat of debt*
paid by them is conclusive against them, aided
by all the force of tbe laws of Louisiana, for
they have paid claims, to the exclusion of tbe
United States, not recognized as liens or priv-
ileged by these laws; and they admit in tbeir
answer that, previous to filing it, they had paid
to creditors, other than mortgaged creditors,
money out of the estate, but do not say how
much.
"The defendants have, in no manner, ac-
knowledged the debt of the United States as due
from the estate of the insolvent.
"Knowing of its exielence. as it li presumed
they did, they ought at Irast to huve put them
on their tableau, even if they had afterwards
disputed their right to priority of payment;
but the fact is, as thi-t document shows, they
have claims individually adverse to tbe United
Stales, and therefore it was no part of tlieir
policy to admit tbe rights of the latter in any
-hspe.
"In the course of this opinion whatever
obiter dicta 1 may have expie^sed arguendo. 1
wish to be explicitly understood as affirming
the law to be Ctiat, whatever legal liens may
have attached to llie property of the debtor of
tbe United State- prior to his insolvency,
whether they arise from mortgages, judgments,
or from the operolinn of Stale laws (if proper-
ly set forth 'and plenrle.l), so far de- ['IBT
vests tbe debtor of his pr[>;>erty, pro tanto,as to
exempt it from the claim of the United States.
"It is to the unincumtiered estate of the in-
solvent, devested of any pre-existing lien, that
they must lonk for pintily of payment, for,
having nn lien themselves on their debtor's
property while it is under his own control, they
cannot r^nrh It in th» hi'nda of others, who
hni-c Lin imp ii'd riplit to it in the case of the
noi.pnynifiii of the dibt for which it is securi-
ty, as in the cai:e of mortga^, the mortgage*
having the jus in i%
1B7
liL'FBEUK COUBT Uf 1
E UmiEU Statss.
1135
"But kII licn« ini-idcntftlly attaching to an
Insolvent's esiate afiiT Ilia inaolv^ncy and sur-
render of it for the bc'ni'Jit of hia creditora, ex-
cept court charges, or the expenses necessary
to put it into the hands of uHitlgnees, must be
postponed to the oluim of the United Slates;
for, whatever properly exiats unincumbered
by liens at the time of inHolvency, constitutes
the estate of the insoUont, and is that 'com-
mon fund' spoken of by the Supreme Court
in Conard v. The Atlantic Insurance Company,
out of which all the creditors are to be paid,
the United States having priorit]'. If it should
be thought that I might have deduced thia
doctrine with Icsa prolixity of exprcsaion, my
answer is thnt I have been thus tedious on thia
rrt of the case for two reasons: lirst, because
have never seen any judicial discussion and
decision on the main points involved in thia
case; and, second, eases oF this kind are likely
hereafter to arise, and on that ai'count it ia
proper that my constniution of the sixty-fifth
■ectioQ of the Collection Act should be known,
and tlie reasons for it.
"The defendants' coiinRel seemed to attach
much importance to the fact that the district
attorney has in his possession good notes aris-
ing from the sale of John Brown's estate (the
principal in the cualoni-liouse bonds), more
than sufficient to pay the debt due to the United
States. The answers to this are, 1. That because
the government may have another recourse for
payment, it la no reason why she should relin-
quish any security she m.iy have for her debt;
and 2. If, through the diligence and vi;;ilance
of the district attorney, acting in hia private ca-
Kiclty as the attorney of the syndics of John
rown, he has succeeded in wresting from a
fraudulent grnap the only means by which
these defendants may be ultimately reimbursed
the amount of this judgment against them,
198*J they 'surely have no right tocomplain;
so that, under present circumstances, the ques-
tion la virtually one of costs; for as to their lia-
bility to pay the debt sued (or, little or no
doubt can exist, and so deeply impressed with
that idea was the defendants' counsel of rec-
ord, that be labored to convince the court that,
although costs usually follow a judgment, yet
in this en<>e they nii^ht not be taxed against his
clients. His complaint is that the attorney of
the United Statea has unnecessarily multiplied
costs by bringing nine suits when he ought to
have broufiht but one; and on that point he re-
lies upon the third section of the Act of Con-
gress of the 22d of July, 1813, which prohibits
attorneys from unnecessary and vexatiously
increasing costs, on pnin of being made linblc
themselves for any excess. It is true, if the
district attorney could have foreseen the de-
fense which has been set up in these eases, it
would have been hia duty to have included all
in one action; but these suits were brought on
separate jud;jments, each of which mi?ht have
admided of a distinct defense. To one, want
of proper service of process on the original
debtors might have been pleaded. To another,
that the judgment was erroneously entered on
the record. To a third, that, under the rules
of court, it had been prematurely signed, and
therefore no judgment. To a (ourlh, nul tiel
record. And to the rest, other pleas, such «s
100
mi^ht have suggested themselves to the mind*
of ingenious cotiiisel, might have been put in.
"If it bad been the wish of the defendants'
counsel to diminish the costs, he ought to have
applied to the court to consolidate the suits be-
fore he added to the costs so much himself by
lihng twenty-seven answers instead of one, ani
even when the suits were consolidated, the rec-
ord shows that it was done on motion of the dis-
trict attorney; no doubt for the sake of more
conveniently trying together a number of cases
in which the issue in all was the same, and the
language of the answers the same, verl)atim et
literatim, with the exception of the names of
the defendants.
"On the whole, I can perceive no reanon
why judgment should not be given against the
defendants for both debt and costs, and 1 shall
aceordiitgly direct judgment to be so entered."
The defendant* prosi'ciited a writ of error to
thia court.
*The case was argued bv Mr. Key for [*IBO
the plaintitTs in error, and 'by Mr. Buti' I, Attor-
ney-General, for the United States,
Mr, Ctiief Justice Haishall delivered the
□pinioa of the oourt:
This is a writ of error from a jiidjriuent of
the Diatriet Court of the United Stales for the
District of Louisiana, rendered on llii.- p tilioa
of the United States against Seaman I'ieid and
othera, the plaintitTs in error, as symJics or as-
signees of Lewis E. Brown, an insuK-cut d litor.
The petition states that Lewis E. Brown, Ueiiig
indebted to the United States on a certnia
itond, on which judgment had been obtained
for a sum stated in the petition, became insol-
vent on or about the 20th of April. IH:II), and
made a voluntary assignment of all his p.oper-
ty to his creditors, under the lawa of Louisiana;
and that the original defendants were appoint-
ed syndics or assignees of the creditors; and
had received and taken possession of all the
property of Brown, and sold and di-posed of
the same to an amount far excee^tiiig the
debt due to the United States; thnt the lle-
fendants, at the time of their receiving and
taking possession of the property aforesnid,
well knew of the existence of the debt
due to the United States; and though the same
had been demanded of them, refused to pay it.
Several other suits, of a similar nature, were
brought for other debts, upon bonds due to tlui
United States by Lewis E. Brown, which were
afterwards consolidated with the present suit.
Answers were duly put in by the defendants,
which admitted the assignment, but i' ' '
that the ayndici
the debt. The c
the court upon a statement of facte (which is
in the case) prepared by the parties, the trial
by jury being waived hy their consiint.
From this statement of facts, it appears that
Lewis E, Brown, at the time of hia failure and
insolvency, on the Zeth of May, 1830, was surety
for one John Brown, on certain cuatom-house
bonds, for duties, due at various times lietwcea
the 20th of August, 1B30, and the Dth of Janu-
ary, 1R31; Upon sll of which bonds judgment!
were rendered in favor of the United States,
before the commencement of the present suit,
which was in March. ' — " "
uentf writs of Geri faci:
IB3§
Field n »i. t. Tbi KKim Statkb.
in
pkrtlM, whtirh vera returned bj the tnanhBl
SAO*] *null> bonki end none of tltem have
as yet been paid. Jolm Brown foiled and be-
came insolvent; and applied for tlie benefit of
the loiolvent Act of LouUiuia on the 10th of
June, 1830.
The defendant* made sale of Lewis E.
Brawn'* propertj, and a credit of one, two, and
three ytars; and received promiaBorj note*
therefor. A part of these notes wore paid be-
fore the 3d of December, 1831; and the residue
wa* securrd by mortgage on the property, and
amounted to e24,S98.60, one-half of which fell
due on the 31st of July, 1832, and the other
half on the 31st of July, 1838. The United
States never, in any manner, appeared in the
proceeding! had in the Parish Court, under the
laws oF Louisiana, in relation to the insolvency
bf Lewi* E. Brown. At the time of his fail-
ure, there were certain mortgages snd privileged
debt! on his estate. A part of these, as w 11 as
bume other debts, had been paid by the assign-
ees, and were stated in the tableau of distribu-
lion; which was rendered to and confirmed by
ilie Pariah Court on the 15th of December,
1631, upon due proceedings had thereon. On
the 30th of December, 1830, the marshal, act-
ing under the writs of lieri facias on several of
the judgments against Lewis E. Brown, seised
the funds in the possession of the defendants
aa syndics, and gave notice to them of the seiz-
ure thereof t« satisfy these judgments
ively. At the hearing of the cause, tl
admitted certain evidence to prove that the
■larsliai made a seizure, and gave notice to the
defendants that he had seized any funds in
their hands to satisfy the judgment on which
the pte^cnt petition was founded; and an i
caption, by a bill of exceptions, was tsken
Burh Ritn<ii>ion. And upon the final hearing,
in Ki iiri i.i'\', 18J3, the court gave judgment for
the Utiile<l S((i!cs. for the amount of all the
bonilv Slid llie interest due thereon and costs.
The vUim of the United States to the pay-
nxri 'if the debts due to them out of the funds
in (lie biiiiils of the syndics, is founded up-
on i|ii' piiiii'ily given them by the sixty-flftb
se.-iii'n i>f Hie Duty Collection Act of 1TU9 (ch.
12t>l. wbicii. in eases of a general insolvency
■nil a«si?nntent, tike the present, provides that
the •■< ill- »r the United SUtes shall be first sat-
iifiril ri, 1 of the funds in the bands of the aa-
T1ii> linit objpclion now taken by the plain-
SOl'l tilTs in error, is 'that the order of the
Psri->h I'niirt conforming the tableau of distri-
bulinn was the jud^ent of a court of compe-
tent jiirifiliction, in favor of each creditor
who^ drbt was therein atated ; and that the syn-
dics were oliliged to pay the proceeds of the sale
to siirb creditors; snd the United States, not
being named as creditors therein, can have no
right to t\f fund ngainat the other creditors.
If at tlie time of the confirmation of this tab-
leau of diHiribution no debts due to the United
Stste* had been known to the syndics, and they
had, in ignorance thereof, made a distribution
nf the who'e funds among the other creditors,
Ibat might hare raised a very different question.
Rut In point of fact, It has not been denied
that the syndics, long before that period, had
notice of the existence of the debts due to the
United State*; mad the present ault waa com-
t U ed.
menced against them in the preceding March.
The United States were, it is true, not partie*
to the proceedin,'R in the Parish Court, nor
were they bound to appear and l>cconic parties
therein. The local laws of the titate could not,
and did not bind them in their rights. They
could not create a priority in favor of other
creditors in cases of insolvency, whinh should
supersede that of the United Statea. The pri-
onty of the latter attached by the laws of the
United Statea, in virtue of the assignment and
notice to the syndics of their debts. And it waa
the duty of the syndics to have made known
those debts in thcii tableau of distribution, a*
having such priority. There is no doubt that
the mortgages upon particular estatea sold, must
be Urst paid out of the proceeds of the sales of
those estates. But if there be any deficiency of
the proceeds of any particular estate, to pay the
mortgages thereon, the mortgagees thereof ran-
not come in upon the funds and proceeds of
the sales of the other estates, except as general
in on this subject.
It anpears from the papers in the record that
the waole amount of the proceeds of all the
sales exceeds $40,000, and that the mortgages
are about $27,000; and msking allowance for
other privileged claims, if any, there will re-
main a balance in the hands of tlie syndics
(when all the notes for the sales are paid) more
than sufficient to pay all the debts due to the
United States. But the difUculiy is that the
notes for a large amount of their proceeds, vie,
$24,898. fH), Mid not become due until ['202
July, 1832, and July, 1833 (a moiety in each
year) ; the Srst being after the present suit was
commenced, and the latter after the preaeut judg-
ment waa rendered. Now, the syndics are cer
tsinly not liable to the United Stales for the
debts due to them, unless funds hnve actually
come to their hands. The notes for the sales
may all be go'id, but as one moiety thereof was
not paid at the time of the judgment, it does
not judicially appear that, even at that time, they
had funds out of which the United States were
entitled to judgments. If the remaining moiety
of the notes has been since paid, theUnited States
will then have a legal claim thereon for their
debts. For this reason, the judgment of the Dis-
trict Court must be reversed, and the cause sent
back for farther proceedings.
In regard to tlie bill of exceptions, aa the
cauae waa by consent not tried by a jury, the
exception to the admission of evidence was not
properly the subject of a bill of exceptions.
But if the District Court improperiy admitted
the evidence, the only elTect would be that this
court would reject that evidence, and proceed
to decide the rsuse aa if it were not in the rec-
ord. It would not, however, of itself consti-
tute any ground for a reversal of the judgment.
But we are of opinion that the evidence waa
properly admissible as proof positive to the
syndics of the debts due to the United Statea;
and if the fact was material to enable the court
to render suitable judgment on the statement of
the parties it is not easy to perceive why it
should have been objectionable. Without this
evidence, there seems to be enough in the rec-
ord to show that the syndics had full notice of
the debts due to the Unitad State*. They do not
101
202
SupREMB CouBT OF THB UNITED States.
even set up in their mswera any want of notice
U a defense. But in the present state of the
case, this matter is the less important because
thej now have the most ample notice of the
debts due to the United States; and these will,
*t all events, be pajable out of the residue of
the sales when it is received.
With the question of costs this court has <
nothuig to do, and as the judgment is reversed
for another cause, it becomes immaterial to be
considered.
This izause came on to be heard on the tran-
103*] script of the record 'from the District
Court of the United States fur the Eastern Dis-
trict of Louisiana, and was argued by couns^^l ; on
consideration whereof, it is ordered and adjud);cd
by this court that the judgment of the saidUis-
trict court in this cause be, and the same is here-
by reversed, and that this cause be, and the same
is hereby remanded to the said District Court
for farther proceedings to be had therein, accord-
ing to law and justice, and in conformity to the
opinion of this court.
u-ly fo J. T.. bat
.AVi" "
t decided on tl
It of Februsr;,
J. T. and vfte HK-d a LUI a;;slnBt Ibe bi
K., and the trustee of Ilie crtilliors ur li. 1
lag a coDVeyance of tbe piojicrty, und to
r.r THE Coukt: Id no point of vlen ci
taiy. Then
9 that In this CI
le consJiIrrntloD, It
auld be paid. Uiil
totps a valuable consiflernf Ion.
In teatinK the validity of the tmnsactlon ot 1812.
the sul»«.'iiueut tail ut propcrlr id Uuujki'Iuwii or
(he failure of Klne cannot be t.ikcn :D'a viriv. Tbe
inquiry mast he limited to his clrcum stances at
that time. It la not shown that the persons for
nhom he was bouad. sa Indorser, wite then unable
was reaponalble. and it would Ire lm|iro(ier to mn-
t worth more tban
JOSIAH THOMPSON et ui.
Property occupied and improved by party
understanding that it should be conveyed to
him by the owner, father ot his wife— death
of owner insolvent before auch conveyan
Dlstrlrt ot Columbia. A few dsya after tlie mi .
rlace ot J. Thompson, with the dauphter ot George
King, In 1812, the latter residioB In Georgetown, In
the District of Columbia, and ! -----
caplta^ shd a Istgc real eslat
grant to J. T. a houie and lot
much out of repair and unCen
b!e residence: BUd saying tb
property tor hia daughter. 1
accepted by J. T., who repair
':f.",'K
irda a
i^tSP]
eaided on it about
•object oF tbe
_. -^ _ BRponden<- . . ,
coDveyance of tbe property to J. T.,
bis wire, took place, which ended In
1 convey the property, on certain
.1 to J. T. and wife. In purauance ot.
fer ot G. K, to J. T., made Immediately afte
marrlaee. No conveyance waa made. J. T.
wife removed from Georgetown, and O. K. coll —
and paid to J. T, the renta_ of,the jfoperty^^t;
he property [or
.-_ _. K. died In 1820.
;at : hla debts amounted to (38,000, and his
estate, both real and personal, when sold.
3l pay thirty-iiine per ci-nt. ot
-operty claimed by J. T. and wife
>iS for |l,eOO by o trustee undci
'ry. obtained by the creditors o
ot his deb
a. K.,
I (he
an nnders landing between
NoTi.— as to specific performsnce of parol agree-
ment for coDveTBuce of lands, see notes to 9 L.
ed. D. a. 927 ; 4 L. ed. V. 8. 66, 242, 204 ; 6 L.
«d. n. 8. 323 : S3 L. «d. D. 8. SlSi S8 X. ed. D. 8.
that neither his credit nor tl
In this state of tads. KlUR (
dlsnosp ot the house and tot,
$2^00. on tbe terms stated.
The terms ot the contract
eatabflalicd by the evidence, tl
the prop-— -'-■•■
the sale _, „
the money expended by Thuuipso
provemeniB on the property: am
any, paid o»-pr for (he ln-nnflt ot
George King: Thompson not to
rcDt ot tbe premises white he o
with (he rent collected and paid tc
I United States for the County of Washing-
The appclleps, Josiah Thonip?>on nnd wife,
>n the Uth of .lutip, 18^6, filed a bill on the
■quity side of (he Circuit Court, alleging that
nporge King, in October, 1312, a few days
after the marriage of ,Iosiah Tiiompson with
FlizBbeth, the riaughter of the said George
King, proposed to g^-ant to the said Thompson
and wife a house and lot of ground in George-
town, if Thompson would repair and make it
comfortable for a residence; at the some time
forming Thompson he intended Ihe property
for his daughter Betsey. The bill alleges that
this offer wos accepted hy Thoinpson, and that
' - made repairs to a large amount, and that he
upied the property after it was repaired un-
1816, when be removed to the western coua-
try.
At the time of this gift, the bill alleges that
George King was in good credit and in prosper-
ous circumstances; it heing believed he had a
large capital, and that he owned a valuable
real estate, which, after the payment of bis
debts, not large in amount, would enable bin
to provide handsomely for his children.
In 1816, before Joaiah Thompson removad
from Georgetown, a correspondence took placa
between him and George King, which was an-
the bill, and which is referred to as
evidence of the contract, under which Josiah
Thompson took possession of and improved
the property.
t83S
Eina'a Heibs et al. ?. Tboupboh n uz.
■■•*] The flrat letter was from George
King to the complainant, Josiah Tlioinp^o
Kad waa dated.
"Georgetown, 17th of April, I81fl.
-Mr, JoBiah ThompBon;
"Sir: I am informed that jou are in aiispenie
la regard to the property fou nuw live on, ai '
I thiok it * duty incumbent on me to let yc
know the terms I mean to let mj daughter
Betaej have it. I hold myself ready, and hold
ujftdf bound to give a deed to a trustee, who
■hall hold it in trust for her and yourself dur-
ing your lives; and then, after the death of you
both, to revert to her lawful heirs, her children,
if any she has, if not, to my heirs ; but you may
■ay I wrong you in this way by not lettingyou
know befoie now that I did not mean to deed
to you inateail of keeping it for her, and on that
account you have put more improvements than
JOB would have done had you have been in-
formed before. You may now sell the property,
And *U you can get over three hundred dollars
for it, you can do aa you like with ; but that sun
niMat be kept sacred for the use of your wife ii
th» hands of trustees, for her support in ca»ii
■he night ever need it, the use of which aa tbi
iBCOVW will be at your disposaiduring your owi
and her lite, and then to her heirs as beforej am
other terms than this it will be useless for you
to look for without yon find two just fothci
that Bhall lay I ought to do othervrlse; am
after hearing their reasons on the subject, pei
haps, I might vlter tny opinion.
"Yours, with due esteem,
"George King."
In teply to this letter, after remonstrating
against making the conveyance of the property
in trust, the complainant, under date of the
2Gtb of April, 1816, mads three proposals to
George King.
"1. Let the property be valued as to its worth
at the time it was put into my posseasion, ar '
I will pay the amount over to you, which yc
may then hold for my wife, or give it to whom
you please; for, when I married her, I was not
latluenced by any pecuniary motive, and as s
SO J*] has never given 'me reason to regr
ray choke, I surely will not allow a considc
ation like the pres'-nt to create the smallest u
"2. Let the improvements beestimated; pay
me the •mount, and then I will relinquish at)
claim and you will be at lil«rty to dispose of it
as you may deem proper.
"3. E.tccute a deed to your daughter at
once in fee-simple, and I will for her benetit
■ad advanlase cheerfully give in all that I have
expended; this will at onoc be making her the
fusrdian of her own property, and, if it should
pleoM God to call me first, will be to her a sup-
"Thiw, my dear air, you will find that I am
•ot disponed to dispute about the original value
of the property ; for, though I consider it aa
certainly the property of my wife from tlie de
Uvery of it into my possession, as any aubse-
?nent act could make it, and from the manner
was allowed and encouraged to go on with the
improvements; yet I am willing at any moment
to Und myself to abide by either of the above
proposals,"
To these propositions, George King, on the
esih of April, laifl, replied!
• lb ed.
"I make no hesitation of complying with
your first proposal, forit is just what T proposed
in my first to you, and I will do it anotticr way
giving you your choice, viz., I will deed tli*
dwelling-house and all above it to you, and
about twenty feet below it; and then all below
that I will deed to Betsey, provided she will
never deed it, nor other ways dispose of it dur-
ing her life, only by will, which she shall always
be at liberty to make when and how she
pleaties, George King."
The hiil proceeds to state that the complain-
ant, JoRJah Thompson, was satisfied with the
proposition contained in the letter of the 26th
of April, ISIQ, and that at the removal of the
complainant from Georgetown he rented the
propt'rty, and constituted George King his
agt^nt to collect the rents of the same, which
duties he continued to perform, without ad-
ing at any time a claim to the same.
1 the death of George King, the legal title
to the property descended to his heirs, no con-
vej'ance having been made of it *to the [*208
complainant; and the bill prays for a decree,
that the heirs of George King convey the aaid
legal title to the complainants, in futtillment of
the agreement of George King; and in the event
that the same for any reason cannot be done,
that the said property stand charged, to the
amount of the repairs and improvements put on
it by the complalnanta; and for other and
further relief, etc.
After the decease of Qeorge King in 1B30,
largely In debt, to the amount of $36,000, anil
insolvent, his whole real and personal estate
not being sufllcient to pay his dehts, in fact not
more than thirty-nine per cent, of his just
debts, hia whole real estate was sold by Rapbtel
Semmes, appointed trustee by the Court of
Chancery for that purpose, at the initanee of
George King's creditors; and among the rest
the property now in controversy was sold for
$I,GUO to John W. Baker.
John W. T.i\' cr deposited 91,100.18, part of
this purchase money in the Mechanics* Bank of
Georgetown in 1626 and 1B2T, to remain until
he termination of this suit; the first deposit
;as made on the 26th of July, 1626, after the
ling of this bill.
e Kin
, to c
npel
!d by tlw
a sale of I
is real estate
gthe
the said Thompson and wife. The si
Baker never was ratilicd, in consequence of
this suit instituted by Thompson and wife.
The heirs of George King (his estate being in-
t) feeling no interest in the suit, filed their
■rs to the bill of Thompson and wife,
neither admitting or denying the facts alleged,
ihmitting themselves to the judgment of the
linphfel Semmes, the trustee for George
King a creditor, on petition and by leave of the
court, was made a defendant, and allowed to
contest the cinim set up by Thompson and wife,
< was also Charles King, one of the principal
'editors. They denied the pretended contract
fill gift srt up in the bill; denied the improve'
ents chnrf^ed to have been made on the prop-
ty; averred the indehtedness of George King
at the time of the pretended gift, to a large
amount, and the continuance of auch indebted-
101
Sdtukk Covbt or Tin Umitd Siaxis,
B«M to the same creditors up to the time of his
death; and the unlawfulncas and fraud in law
S09*] of (ueti gift, if any 'could be proved,
and the inaufficiency of George King'd whole
•state, real and personal, to pay liis just debts;
and claimed the proceeds of said house and lot,
for said creditors of King.
Charles King, as a creditor, also filed a bill
against Joaiah Thompson and wife, charging in
subatance the same facts; to which bill Thomp-
•on and wife responded, re-asserting in sub-
stance the matters alleged in the original bill.
The; admit in this answer that thej were mar-
ried on the 6tb of October, 1812, and that the
alleged gift of the houss and lot was made after
the marriage.
Evidence was taken by the complainants and
ths respondents, which is full; stated in the
opinion of this court, and on the Gth of April,
1832, the Circuit Court, all the parties having
been heard together, pronounced a decree direct-
ing a conveyance in lea of the property claimed
in the bill to Josiah Thompson, from which
decree this sppeal was taken.
The case was argued by Mr. Dunlop and Mr.
Ktf for the appellants, and by Mr. Coxe for the
appellees.
For the appellants It was contended that the
decree of the Circuit Court was erroneous, and
ougbt to be reversed.
f. Becauae the letters of George King do not
import any contract, binding him or his hcira
to convey the property in fee to Thompson,
nor docs Thompson's bill pray such conveyance.
Because the letters and proof in the cause
show no contract concluded, or ascertained with
such certainty aa to warrant a decree for spe-
ciflc execution.
2. If there was a contract of gift, it was
made after marriage, without any valuable con-
sideration, waa voluntary, aud cannot be en-
forced even aeainst George King's heirs.
The said gift was fraudulent and vgid.
S. Because George King was indebted at the
lime of the alle^«l gift, and so continued up
to the time of his death; and bis creditors, at
the time of the gift, represented by Scmnies,
the trustee, are yet unpaid, and the said King's
estate insolvent.
4. The improvements made by Thompson,
gave him no lien on the property, or any claim
to a conveyance to himself in fee. If made,
they constituted a personal claim against George
310*] 'King, more than offset by the enjoy-
ment and occupation of the house and lot for
many years, and by Payne's debt, paid for
Thompson by Geor)(e King's estate.
Mr. Dunlop, for the appellants, contended:
I. That there was no contract or gift proved,
M none such as Thompson's bill and the decree
below enforced. The decree is for a deed, in
fee, to Thompson himself. The letters (and
they are the only evidence of the alleged gift}
do not show an; engagement on the part of G.
K, to convey to Thompson. The letters show
a resolute determination on the part of King,
not to deed to Thompson; but to give, what
he meant to give, to Thompson's wife, the
daughter of King. The letters show the par-
ties to be still in treat; about the terms.
The letter of the 29tb of April, 1816, con-
tained an alternative offer; and, if Thompson
assented, which of the alternntives did he
104
choose! It is clear that no definite contract
niis concluded— none so apecific that acourtof
pquit; could decree its performanre. Mor«>
over, tho court has decreed ni-iHipr of the al-
terttstives. but a thing entirely I'liTirout. and
never in the contemplution of Itir cmi ru;-Ung
But if the contract was flulli,''i'ii:1v p'oved,
it was founded on the considoralinti i>i hue ^ind
xlTcction only, was voiuntiiry, stiil rr I'int be
enforced even against the othir lii'lrs <-r i>i>(ii|je
King. The other heirs of (Icur^i.' l\\:\-< liave
the legal title, and having eqi^al ri|i.ity with
the complainants, Thompson and wife, uo court
of equity would disturb thcni.
As between the partii's, a court of c(]-.illy will
not interfere to sit aside a fair voluntniy euii-
vpyance. liut it is a clearly settled rule that
chancery will not decree a sp.elllc perform-
anre of a mere voluntary covenant, without
consideration, to make a conveyance; and this
the court is here asked to do. Black et al. v. Cord,
2 Harris A Gill, 100; 1 Maddock's Chaucery,
4U, 4le; Osgood V. Strode, 2 P. Wms. 242;
Francis's Martinis, 14 ch. 15.
It is said that the contract was antenuptial,
and that marriage is a valuable cons iiierHt ion.
There is no proof of this fact, and the onus of
proof is on Thompson and wife. But if there
was any antenuptial promise, it was by parol
and therefore void. It could not be valid, un-
less reduced to writing before 'mar- [*SI1
riage. Reid v. Livingston, 3 Johns. Ch. Rep.
488, 489; and the canes there cited.
The proof, however, is, and so Thonipion
and wife in their own bill aay, that the promise
was postnuptial.
It IS also urged that the impravemcnts and
repairs constituted a valuable cunsider.-ition.
In the first place, the repairs were injudi-
cious, entravsgant, and not such as George
King had authorized. They could, so far aa
they were lawful and authorized, only amount
to a personal claim on George King. At all
events, these repairs could be no consideration
for the original value of the property, that is
to say, for the value of the property before the
improvements were put upon it. The repairs
did not inure to the use of King; and Thomp-
son and wife have had the benefit of them ib
the occupation of the property for many years.
The hill itself does not ask for a conveyance
on the ground of repairs, but goes solely upon
the contract of gift b; the father to the daugh-
ter. If repairs could give a title, a parent in
debt might, on this pretense, and in dellance
of creditors, settle all his estate on his chil-
2. If there was a gift, and it could be en-
foreed in equity against King's heirs, it is void
again at creditors.
George Kin-; woa largely indebted at the
time of the pretended gift. Msny of those who
were creditors at the time continue to be cred-
itors to thia day, and are now resisting Thomp-
son's claim. As against them, the contract H
absolutely fraudulent and void.
Indebtedness at the time is not only a badge
of fraud, but as to such creditor, continuing to
be a creditor, per se, avoids the contract or con-
veynnL'e. The evidence is clear that the credit-
ors row before the court were many of them
creditors at the time of the gift. Reid t. Liv-
Pet«n ••
IBSfi
Kina'a Ueibs et ai. v. Thoufbok n ox.
ni
^ptoB, t Johni. Ch. Rep. 497; Sexton y.
Wbeaton, Ml, 242, 243. 244, «t acq.; Lesai^e of
Rid£w>7 V. UnderA'ood, 4 Wasli. G. C. Rep.;
Bidgway v. Ogden, 4 Wash. C. C. Hep. 139.
If the indebtedneu of King was only evi-
dence of fraud, and not conclusive to avoid the
de«d, the record bIiows him to have been so
Bach involved at the time of the gift, as to lead
ft court of equity to set it aside for fraud. It
112"] ojinot be said to 'have been a fair
transaction. ITe did not leave enough undis-
posed of to pay his creditors at the time.
Subsequent creditors, under such circumstan-
ces, could impeach it for fraud, and a fortiori,
creditors at the time. Hinde v. Longworth, 11
Wheaton, 190; D Cond. Rep. 27a
Mr. Coxe, for the appelleea.
The original bill asks either ft conveyance in
fee, in execution of the agreement between
George King and Josiah Thompson, or that the
value or cost of the improvements shall be de-
creed to be a lien upon the property on trliich
thpy were made. The cost of the improvements
was larger in amount tlian the property would
BOW bring, and thus the result of either deci-
■ion would be the same. The precise form in
which the relief sought in the Circuit Court by
Thompson and wife shall be given, is therefore
■ItogeLher immaterial.
The appellants, in their flrst position, assert
thftt the letters of George King do not import a
contract binding him or his helra to convey the
Sroperty in fee to Thompson and wife; nor
DCS the bill ft«k for such a couveyance. They
My the letters and proof in the case show no
contract concluded or ascertained, with sufB-
cient certainty, to warrant a decree for specifle
axeentioR.
Tha appellants are not authorised to select
parta of the evidence, and allege for error that
they, when taken alone, do not auatnin the de-
cree. Whether the conveyance be directed to
be made to Thompson, or to him and his wife,
ia not a matter for the ajipellnnts. It is a suffi-
cient answer to their claim that it can properly
be made to either or both. This court is com-
petent to rectify the decree in favor of those
entitled- As to the ground that no proof is
■bown for a speHflc performance, it is answered
that the averments and proof are sufGciently
distinct: I. As to the property embraced in
the arrangements. 2. As to the' nature of tlie
estate to be created. 3. As to the considera-
tion. The only doubt is as to the respective
inlerests of Thompson and his wife. This, s»
has been said, is uot a matter in which the ap-
E -Hants have any intprest. The heits of Ccnrgc
ing have not appealed. The pleadings show
tkia.
The appellants' second ground for reversal ia,
Jll»] that if thrre 'was a t-ontraet or gift it
was after marriage; was without any consider-
ation, and was voluntary, and cannot be en-
forced against George Kin;^'^ heirs. That the
gift was fraudulent and void.
This exception is given in a questionable
form. It does not assrrt tiint the gift was
(ratuilouB, or that it wus purely voluntary.
But if it did, there is no rule in equity that
anch ft gift cannot be enforced in equity. To
lb* word "voluntary," different significattona
are given by courts of equity. This case may
not be raited a gift. It was a coutracl. executed
• b ML
' in everything but a conveyance, and this equitj
will enforce.
Although it sometimes comprehends all con-
vc3'ances without any pecuniary coniideratioii
or valuable consideration, yet when it is used to
indicate that species of conveyance which equity
will not aid or enforce, it means that convey-
ancB which has no meritorious consideration,
either good or valuable. Equity is remedial
only to those who come in upon an actual con-
sideration. But there are precedents of relief
where it is a provision for children- Fonbl.
book I, ch. 6, sec. 2, 348, 349; also note to Sug.
on Powers, 276, 276; Hardham v. Roberts, 1
Vem. 132; Thompson r. AtQeld, 1 Vem.40; Col-
man V. Sarrell, 1 Ves. Jun. 60; Uinton v. Sey-
mour, 4 Johns. Ch, Bep. 497, 600; M'Call v.
M'Call, 3 f)ay, 402; Hinde's Lessee t. Long-
worth, 11 Wheat. 213; 6 Cond. Rep. 270.
But the consideration in this case stands on
a higher footing than that of being simply mer-
itorious. The contract was mutual and execu-
tory. The consideration was actually paid by
Thompson. He laid out large sums in vftlua-
ble improvements, and owing to the deprecia-
tion of the property, these sums cannot be re-
imbursed- To malte a consideration valuable,
there need be no pecuniary benefit passing to
the vendor. Anything injurious or detrimental
to the other parly, ia equally operative in malt-
ing the contract binding. Roberta on Fraud-
ulent Con. 16.
Such a contract, on such a consideration,
carried into actual execution by Tbompson by
the expenditure of his money, by taking poi-
session, and continuing in possession from 1813
to 1835, cannot now be disturbed.
It is assigned as a reason for reversing the
decree of the Circuit Court that the gift wai
fraudulent and void.
*The meaning of this Is that the gift [*2I4
la void because it is fraudulent. But in the
pleadings there is no allegation of fraud. This
IB a necessary averment, and is uniformly re-
quired. 6 Har. A, Johns. 24.
There is no ground assigned upon which the
conclusion of fraud can be based. It has been
settled by this court that a deed, though volun-
lary, is not in general void, as against subse-
quent creditors. Sexton v, Wheaton, 8 Wheat.
22U; S Cond. Rep. 41B.
The only creditor who has intervened is
Charles King, and he was not a creditor at or
neor the time of this contract. In no part of
the record does any ground appear on which
he could impeach the validity of the proceed-
ing. The whole proceedings in his suit to en-
force payment out of the real estate, were in-
aufG cient and informal. No administration
account appears to have been settled. No
deficiency of real estate has been established.
There is no allegation that any other creditors
are interested. One creditor cannot, on his own
behalf solely, proceed against the real estate of
a deceased debtor. 4 Simon's Rep. 37; 6 Cond.
Ch. Rep. 25-
The last point insiiited upon by the sppclleet
is that the expenditures by Thompson consti-
tuted no lien on the property.
There is no fraud imputed to Thompson and
wife. Their conduct is unimpcaehed and un-
impearhnble, they acted fairly, their poasea-
aion was notarioua; tftiep were charged to them
t9ft
H«
SursEMB CouBi or the Uihtis States.
183S
in the MBesiinenta of the property, and tbe
monef for tbe repairs was advanced in good
faith.
This, then, is a far stronger caB« than that of
Harding v. Itandy, 11 Wheat. 103; B Gond.
Bep. 23B. In that case the court allowed the
property to which a title had been obtained by
improper mean* to stand as s«:urity for the re-
pay raeot of the expenditures, etc. In thii
case, the form of tbe decree, save as to costs
and expenses, is immaterial. It is admitted
appellants will pay the expenses of a reference
to s master and a sale, the appellees are content
with a decree to receive merely the debt actual-
ly due.
Mr. Key, in reply, insisted on the insolvency
al8*) of George King *at the time of the
proposition to Josiah Thompson. The e
dence showed that debts due to the banlcs
the District of Columbia, and indorsements
notes, existed at the time, which were not paid
during his life, and created the great deficiency
in bis estate, which is not now denied. The pro-
ceedings of the plaintiffs in error were to sub-
ject the whole real estate of George King to
the payment of bis debtsj there being a defi
dency of personal assets.
Tbe flrat proceeding by tbe appellees in their
original bill, was tu obtain from the heirs ol
George King a speciGc performance of an al-
leged contract- Their bill was not framed on
the ^ound that it waa a contract for a valuable
eoDBi deration.
He denied that if there were no creditors of
Geoi^e King unpaid, there was any contract
proved which would be sustained by a court of
equity, and which waa binding on the heirs of
George King.
Mr. Justice HXean delivered the opinion of
the court:
This is an appeal from the decree of the
Circuit Court for the District of Columbia.
Tbe defendants here, who were the com-
plainants in the Circuit Court, filed their bill,
stating that in the year 1812 they were mar-
ried; and that the wife of the complainant is
tne daughter of George King, who at that time
lived in Georgetown, and was extensively en-
gaged in a prolitablp mercantile business. That
his credit was high, and complainants believe
he was possessed of a large active capital; and
in addition had a large real estate, consisting of
houses and lots in Georgetown. That it was
universally believed he would have a large sur-
plus property after paying hi,! debts, which
would enable bim to provide handsomely for
his children.
That a few days after the marriage, George
King proposed t« grant to the complainant,
Thompson, a bouse and lot on Cecil Alley, in
Georgetown, which was very much out of re-
pair and almost untenantable, provided he
would repair the same so as to mane it a com-
fortable residence; and that tha said King at
tbe same time stated he intended tha property
for the wife of the complainant.
The complainant accepted the property, and
expended upwards of (4,000 in making repairs
Sie*] of the house and other 'improvements
•■ tbe lot. That he occupied it aa * reaidenca
1V«
about four years, and then removed to the
western country. Before his removal, a cor-
respondence took place between him end the
said King in relation to the title, and the com-
plainant made King his agent to collect the
rents, etc.
The complainant farther states that the ssid
King died intestate, leaving, in addition to the
wife of tbe complainant, certain children who
are made defendants; and a decree for a legal
title is prayed, or if that cannot be decreed,
that the property may stand charged to the
amount of the repairs and improvements.
George King died in the year 1620, insolvent.
His debts amounted to £30,000, and his whole
estate, both real and personal, when sold, did
not pay more than thirty-nine per cent, of his
just debts. Tbe property cluimed by the com-
plainant was sold for $1,6Q0, by a trustee, under
a decree of chancery, obtained by the creditors
of George King, but the sale has not been rati-
fied.
Raphael Semmes, the trustee of George
King^ creditors, and Charles King, one of the
principal creditors, filed their answers to tha
bill of the complainant, in which they deny
that the improvements were made on the prop-
erty as set forth in the bill, and insist that
George King, at the time of the intended gift,
was embarrassed and unable to pay his debts;
and they insist that tbe right set up by tbe
complainants is fraudulent and void as against
There are some irregularities in the record
which it is not material to notice, as theM
statements show the points to which the evi-
dence applies.
The first inquiry is, whi'tber a contract waa
made between the complainant and George King
for the property in question.
It is msisted, by the complainant's counsel,
that the correspondence between the parties,
which is contained in the record, establishea
the contract.
suspense in regard to tbe property c
tbe compliant then lived, that he held him-
self bound to give a deed to a trustee, wba
hall hold it in trust for the complainant and
lis wife during their lives," etc.
'This letter is answered by the com- ['SIT
plainant, ZlJth April, 1816, in which he devlinea
the terms proposed, and suggests tlie fullowlng)
1. Let the property be valued at the lime it
was put into his possession, and that be would
pay the amount over to King, etc.
2. That the improvements should be esti-
ated, and King, on paying the amount, should
!ceive a relinquishment of all the right of the
3. That a deed should be executed for the
property to the wife of tbe complainant.
On tha 29th of April, 1818, King replies, T
ske no hesitation in complying with your
lirst proposal, for it is just what I proposed in
my first to you, and I will do it another way,
giving you your choice, via., I will deed the
dwelling-house and all above tt to you, aod
about twenty feet below it; and then all below
that I will deed to Betsey," the wife of the
complainant, "provided aha will never deed
Kmo'a Hsna cr al. T. TavHrtoii r ox.
UT
It, or dipOM of ft, except by will, which the
■ball aJwkya ba kt Ubertj to maJu, whoa and
kow ■he pleasea."
On the I4th of Auguat, 1819, King writea to
Um complaioant, "Mr. Kennedj hki left your
home aioee the fint of July last, «nd I tiave
Bot beea able to get a tenant lince. Houses
an Twy dull here nowj rants have fallen very
Inform you that Mr. Jacob Fafne faae
attachment on your property in Georgetown,
•te," referring to the property la MmtiOTony.
liiia ia all the evidence to show a eontraet,
■seept what might b« presumed from the oo-
eopaney nod imprOTement td the house and
SpedHc propoaltions ware made by each
narty. In regaxd to the title of the property, but
It does not satisfactorily appear that either was
Anally accepted. The complainant in the first
place objects to the conveyance of the property
to a truatee, for the benefit of hi* wife; and he
prapoaea to pay to King the value of the prop'
vty at the time it was put Into his poseeesion,
which sun, at the pleasure of the donor might
ba Teat«d for the benefit of complainaat's wife.
118*) To this King replies that he *ba* n«
heaitatian in accepting the proposal, but he ao-
e<Mipaniea this acceptaace with a pit^Msitlon
ts deed the dwelling- bouse, with a certain part
of the lot, to the complainant, and the residue
of the lot to his wife.
Whether this last proposition or the one
made by the complainant and aasentod to by
Kin^ formed the contract, is uncertain, or, In-
deed, whether any definite agreement was final-
Frma the occnpancy of the property and the
amount of money expended in improving it,
I hi III Cka be no doubt that there was an uoder-
•taading between the parties that the property,
ta aome manner, should be possessed and owned
by tbe complainant. The evidence, however,
■hows that King did not Intend to vest the
property absolutely in the complainant; but
that the value of it, before the improvements,
aboold in soma fonn be secured to the com-
This court are now called on to decree a
■peeifle execution of this contract; and what
are its termsT Shall the title be vested in fee
in tbe complainant, without condition; or ahall
a p«rt of the property be vested in trust for the
boie&t of hii wifel Or shall the title be vested
ia the complainant, on his paying into the
hands of trustees, tor the benefit of his wife,
the vmlue of the property when he first received
It?
Tbe OTldence does not afford a satisfactory
aaawer to any one of these inquiries. It is Im-
poasiMe, therefore, for the court to decree a
title as prayed for in tbe bill, as the evidence
fails to establish the specific terms of the con-
tnet.
But ft fs insisted that this arrangemeut or
coatract, ff proved, was void as against the
Mrs of Ring, and especially as against his
gvdltora; on account of the indebtraent of King
at the time and his subsequent insolvency.
AltlMtt^ a ctotract ia not proved with tuf-
• I<. ML
flcient certainty as to ita eondUiona to authorlat
a specific execution of it, yet there can be no
doubt there was an agreement between the
parties, which induced the complainant to en-
ter into the posaesaioo of the property, and to
expend large sums of money upon it, as if it
re his own; and when he left it and removed
the western country, it was rented as his
property, and George King acted as tbe agent
of the complainant. And "the prop- (*alt
erty seems to have been considered as belong-
ing to tbe complainant, by the heirs of George
V^atever micertainty may exist as to the
terms of the contract, there can be no queatlon
lat tbe complainant acted under it In tiJcing
iBseasion of tbe property and expending a
ree sum of money in its improvement.
hi no point of view could such a contract be
considered voluntary. There was not only a
good consideration, that of natural affection,
but a Taluable one. To oonstitute a valuable
consideration, it ia not necessary that money
should be paid; but If, as in this case, it be ex-
pended on tbe property, on tbe faith of the
contract, it consUtutas a valuable considera-
Tbe debts of Georga King for the years 1812,
119 and 1S14, amounted to about 113,000 or
«U,000, of which 911,000 were due to the
Bank of Columbia. And the average amount
of his debts, from IB12 until bis death, was
about the sum of (13,000.
In 1812, and for some years afterwards,
George King was supposed to be rich. For his
house on High Street he refused tI2,SO0. The
whole amount of bis property was estimated at
$60,000 or more. He was indorser on accom-
modation notes for about $20,000 at the above
At this time tbe property olalmed by the
complainant was not worth more than $2,000
or $2,S00. Its Talue was increased three or
four times this sum by tbe Improvements.
In 1827 it appears, by an exhibit of tbe debts
due by tbe estate of George King, including
interest, that they amounted to the sum ot
$36,41B,10. But many of these debts seem to
have been eontractad subsequent to the time
that the property in question was placed in the
possession of tbe complainant. It appears also,
the property of which King died possessed, did
not pay forty per cent, of the debts due by the
estate. And that he retained the greater part,
if not the wliole of his real estate, except the
lot claimed by the complainant, until his de-
cease. But It seems from the prices fixed up-
on this property in 1613, and those f<»' which
it was sold, that there must hsve been a great
deterioration in the value of it.
Under the above circumstances. It Is insisted
by the appellants that the contract with the
complainant, In' George King, for the abore
property, was ftaudulent.
*tt has already been observed that [*sao
the money expended in the improvement of
this pri^erty constituted a valuable considera-
tion. TTie contract, therefore, if proved, so as
to entitle the complainant to a decree for a
xpeclfie execution, could not be avoided on the
ip-ound that there waa no consideration.
At the time this property was received by the
complainant. King waa supposed to be rich
ee«
SuPRCMi CoUBT or THx Uhited Statks.
Hii property wki etlimated at Saa,(X)a) his
d«bti did not exceed $13,000 or tU.OOO, ftnd
his indorsements were about t^O.OOO. That
his credit stood high is shown by hia indorse-
mcnte, and the ataniling accommodation given
to him in the banks. So bi^h did lie itand aa
a man of property and buBinesa, tbat it was
deemed a valuable object to obtain bis service!
as director in one of the Georgetown banlca.
There teema to have been no diminution of his
credit or mcana for several years after the
transaction with the complainant.
In testing the validity of that transaction, the
■ubaequent fall of property or failure of King,
cannot be taken into view. The inquiry must
be limited to his circumstances at the time.
Was King, when this property was received by
the complainant, in a failing or embarrassed
condition T
It ia not shown that, at this time, the persons
for whom he waa bound aa indorser were un-
able to pay the respective suma for which he
was responaible; and it would be improper to
conaider theae sums as debts due by King. He
was responsible for their payment on certain
coiitinKencies ; hut the fact that his credit re-
mained unimpaired for several years after the
contract with the complainant, shows that
neither his credit nor the credit of those for
whom be was indoraer was conaidered doubtful.
In this state of facts, be surely was in a con-
dition to dispose of a house and lot not worth
more than ^,600, on the terms stated in the
Ull.
There appears to have been no fraudulent
Intent in the case; no disposition to defeat the
claims of the present creditors, or to cover the
Cperty from future demanda. It aeema to
e been a bona flde transaction, and one which
neither a court of law nor of equity could re-
fuse to sanction. And if the terms of the con-
tract were eetabliahed so that thia court could
decree a tpeciHc execution of it, they would
S21*] pronounce such a decree. *But aa a
spcclflc performance cannot be decreed, the in-
quiry remains whether the complainant has a
lien on the property for th« money expended
In improving it.
The counsel for the appellant do not contro-
vert the right of the complainant to a juat re-
muneration for the valuable improvements ha
made, but they insist that be must exhibit his
claim DH a general creditor of the estate of
George King; and that from such claim there
■hould be deducted a reasonable rent for the
time the property was in bis possession.
This claim for improvements by the com-
ptsinDnt is founded upon the moat equitable
CO nsid prat ions. At the instance of George King,
his father-in-law, the complainant entered into
the posseasion of this property; and under a
full belief that it would be secured to him a*
his own, be was induced to expend a large sum
of money in making permanent and valuable
improvements. These improvements, aome of
the witnesses say, have increased the value of
this property to three times the amount which
it WDS worth before they were made. From
this, it appears, the money was not injudicious-
ly expended ; and the question arises whether
this expenditure, under the circumstances of
this case, does not create • lien upon the
to*
If King were living, he could not object ta
this lien. Can his creditors abject to itT By
enforcing it, can their interests be injurioualj
alTecLed !
It may be said that the deterioration of prop-
erty in Georgetown has been such as to reduct
the value of this property to a less sum than
was expended in making the improvement*.
This cannot change the principle that must
govern the case. If the money has been judi-
ciously expended, under such circumstances as
to entitle the complainant to a lien, the court
It give elTect to it. It is an equitable mort-
gage, and in a court of chancery, is as binding
on the parties as if a mortgage in form had
been duly executed.
Suppose George King, for the purpose of im-
proving this property, had borrowed from the
complainant, $4,000, and had executed a mort-
gage on the same property to secure the pay-
ment of the money. Could the creditors of
King complain of the lien of the mortgage I It
la clear they could not. And is it not equally
clear that they have no ground to complain of
'the equitable mortgage! If there be f'223
any difference in the force of the liens thus
created, it must be in favor of the equitable
In the Erst case supposed, the money was
loaned at a fixed rate of interest, and the prop-
erty was looked to as securing the payment.
But in the second case, the money was expend-
ed under a belief that the property belonged
to the individual, and that the amount expend-
ed increased so much the value of his estate;
and, in many coses, a failure to obtain the prop-
erty, under such circiimstancGs, would cause
an injury which a return of the money expend-
ed would not repair.
It would be roost unjust to leave the com-
plainant, as a creditor, to receive a dividend on
the distribution of the estate of King.
Ought the complainant to be held accounta-
ble for rents while be occupied the premises,
or which he may have subsequently received
from his tenants!
The rents received by the complainant after
his removal to the west, independent of other
facts In the case, go to show that he was not
considered aa the tenant of King. Indeed,
there can be no doubt that the complainant
considered the property as his own, and it was
so treated by George King, for he collected
the rents aa the agent of the complainant, and
accounted to him For them. It would there-
fore be unjust now to compel him to pay rents
which, with the concurrence of all pnrtiea, were
paid to him at the time they accrued, aa his
And, in addition to this, the inti'ro>it on tb*
money expended would, pprbnpx. Lc equal to
the whole amount of the rents.
Aa the Circuit Court deoroMi a conveyance
of this property to the coniplniihiinf. tlmt de-
cree must be reversed and the muse n'msniled
to that court, with instructions to cause the
property to be sold, after due notice, on aucb
terms as they shall deem most advantageous to
the estate of George King; and the proceeda of
the sale, first, to be applied to the payment of
the money expended by the complainant tB
Baking improvements on the property, end tho
Tm Hatob, Ra, or Kkw Oux&irg t. Db Abhu Am CotiauA
This cauM CBine on to be heard on the tran-
SSS'i script of the record 'from the Circuit
Oonrt of the United Stkte* for the District of
Columbia, holdcn in and for the County of
Waahiugtou, and was argued bv eounte]; on
eonsi deration whereof, it is ordered and de-
creed by this court that the decree of the said
Circuit Court In this cause be, and the same la
berebf revened; and that this cause be, and the
same is hereby remanded to the said Oreuit
Court for farther proceedings to be had there-
in, arcording to law and justice, and in ooo-
tOTtaity to Uie opinion of thia court.
M4»J rrHB MAYOR, ALDERMEN and IN-
HABITANTS OF THE CITY OF NEW OR-
LEANS, Plaintiffi in Error,
L— Istana. A IM of grcond sitaatad Is the dV
af New Orleans, which was occnpled, andar an 1d-
comnlete title, tor some time br HcmlHlon of
the Spanish coTerdment, granted before the aequl-
■Itloa of Lonltlana bj the United States, was con-
tmed to the claimants, under the Inwi ot tlie Catt-
ed Btates, and a pateat whs lasued for the same on
Ihc ITth of Februarj, 1821. The dtr of New 0^
leans clalmlDK this lot ss bMns part ol a qosy de«-
eatcd to the nse of tlie city In the original plan of
Ibe town, and therefore nat erantable b; the Kins
of Spain, enlarged tbe leiee In front of New Or-
laaas bd as to Include It. Tbe pateatees from the
Halted States broacht a sntt Id the District CoDit
ot the Stste ot Louisiana for the lot, which pro-
nounced JudEineDt In their fsTcr, and that judg-
Ment was affirmed b* the Hnprame Court of the
Sttte. The Jadgment was removed to this court,
nader the twcDty-BIth section cf ths Judicial Act.
A motion wss made to dismiss the writ of error
(Or want of inrlBdIetlon.
Bv TBB Coubt: The merits of this controTeiSr
csnast be nrlsed In this tribunal. The onW In-
qolrr here Is, whether the record shows (hst the
Coaatltutlon, or s trestr. or a Isw of the United
States has beea Tlolntcd h7 the dedslon of tbst
The twent7-Bfth section of the ladlclsl Act Is
limited b; the Constttutlon, and must be construed
sa as to ha eonllaed within these llcnita. But to
eonstrae thIa section so that a caae can arise under
the Constitution or a trealr onlf when the right la
created bj the f' — "•--■ . — •- 1- » - -■
tk* obilonspDr
the set of Cont „. „, „ „
BWDta extends the Jarladlctlon of this _
rlghls protected br the Conatltntlon, treaties or
laws Dt the United States, trou whatsTer source
(bese rights mar spring.
■"- - '- *'^- ^■■-■-"-"-1 of the court In this
the title set up bT the
itected bj the treaty
ei Slates, or bj some
. - IgL, _
trestj, would defeat
the CouatltntloD, aa welt as
"-- '-nBUBge of both Ini —
^ It most he shown II
of New Orleans !■
act of ConKresi apptlo
The third article of
I'D bis 1
■"'/[o"
a( LoDlslana atlp-
lights been
trtj and religion
Hon. — As ts sppeltste lorlsdletlon of flupreine
Coart, where the Constitution, trcatr or Isw of Ihe
ITnlled States has been T|o)sled br a declalDD of a
RUte conrt. Ree Dotes to 2 I., (d. U. S. flG4 : ii
1. ed. U. 8. ST ; fl L. ed. D. 8. STl.
Nature of decision ax alTecting right at rsTlsw,
Tlolated while the stipulation contlniied In force,
ths Individual supposing himself to be Injured
might have brougbl hla case IdIo this couit, under
the twentr-fltth section ot the Judlelnl Act.
But thU etlpulatlon ceased lo operate when
I^uieliiDB became a member of the Union, and Its
Inbftbltanla were ■■adtultled to tlie eHju>ment of
si] tbc riehti. ■dTatitD;;<'E and Immunllles of cltl-
sens ot the United States." The rlsbt to bring
S.esllons of title decided In a f^tate Court before
Is trlhunal, 'Is not claased aiaong those 1*^33
ImmuDlCIes. The Inbnbltants of l.niilslaun unjoy all
the advantages of Amerlcaa cltlxena. In common
with tbelr brelhi-en In ttaeir slater SUtes, wh<>D
tbeir titles are decided bjr tha tribunals ot ths
Btate.
The Act of CoDgren admitting Louisiana Into
the Union carries fnto execution Ihe third article
ot the treat; of cesalon. and cannot be construed
to give appellate Jurlsdlctloa to the court over all
questions of title between the cltliens of Loulslsos.
The patent granted to the clnlmants of the land
did not profess to deatroj an; prevloui eilatlng
title : nor could It so operate. The patent waa
laaueJ under tha Act of Ua;. 1820. entitled "An
Act supplemenUrj to the sereral acts for the ad-
justment of land titles In the State of Louisiana."
That act confirms the titles to which It aupllea,
"against anj claim on the part of the United
States." Tha title ot the city ot New Orlesns could
not be affected bv this conllrmatlon.
It la a principle ippllcable to everr grant that It
cannot affect prceiisllng tillea.
The case of Tha Dnited Btataa y, Amdonda. •
Faterm TBS, dted. ^
TN arror to the Supreme Court of Louiaia^
The defendanta In error e
> peti-
tory action by filing a petition in the First Dis-
trict Court in and for the First Judicial Dis-
trict of tha Btate of Louialana, claiming to be
the ownen of a lot of ground In the city of
New Orleans, elehty feet front, and close to
the foot of the Old Levee, between St. Philip'a
and Maria streets; and stating that the lot had
formerly been built upon, and had been poa-
seased by • certain Thomas Beltran, or Bert-
rand, with the Ifnowledge, permission and au-
thorization of the Spaniah government, from
March, 1TS8 to 1803, and by his widow, who
afterwards demolished the buildings, and re-
moved to another part of the city. The widow
acting for herself and the minors, took all the
legal steps to have the title confirmed by the
United States; and the commissioners of the
land-omce reported on tha title that "it would
be more an act of justice than of generoalty, if
the povemment should confirm it7' The com-
misaionera under the Act of Congreas of llth
May, 1S20, entitled "An Act aupplementary
to tha several acta for the adjustment of land
elaimi In the State of Louisiana," confirmed the
title against any claim of the United Statea;
id a patent for the same was granted to the
idow and heirs of Bertrend. After the death
of the widow, the petitioners became the own-
ers of the property by purchase from her heirs,
they being also the heirs ot Bertrand.
*The petition proceeds to state that ['220
firior to the cession of Louisiana by France, the
ot of ground belonged to the King of France,
and by_ tha lawa of Spain, which were intro-
duced into the colony of I^uisiana after the
said oession, the King of Spain by his offirerl
had the full right of dii^posing of the name. By
the retroresaion of the colony to France by
Spain, the right to the lot of ground bceamc
vested in Franca, if it was not the property of
Bertrand; and the aame right was not devested
by any act done by the King of Spnin, e.tpcpt
In favor of Bertrand. That, by the treaty of
tiA
SuTBEu K CouBT or THK Ukitbd Statm.
emton of Louisiana to the United Stfttea hy
France, the United States clear!; acquired
•very lot of ground, land, squares (emplace-
mens terrains), buildings, fortili cations, edifices
therein, nhicb were not private property; and
that the grant made by the aforementioned let-
ters patent, therefore, justly and lawfully vested
the said widow of Bertrand with all the rights
of owners liip and possession, which all the dif-
ferent ifovernments, who hod possessed Louisi-
»na, had or could have to the Bald lot of
ground.
The petition alleges that the corporation of
New Orleans, under the pretense that the lot
claimed by the petitioners is a part of certain
qtiayt marked on a plan of the city, have en-
larged the levee in front of the city so as to in-
clude the some, and pretend thnt they have just
title to this lot; and prays process, etc,, and
that it may be adjudged and decreed, that the
petitioners are the only true and lawful owners
and proprietors of the above -described prop-
erty; and that the said mayor, aldermen and
inhabitants, have no right whatever in, to, or
upon the same.
The answer of the corporation of New Or-
leans denies that there had been an absolute
grant of the lot in question by the Spanish gov-
ernment to Bertrand; but only a permission to
build a temporary cabin thereon; and asserts
that the patent of the United States cannot be
■ good title thereto. They insist that it had
been determined In ISIZ, or ISIS, in a suit
brought by the corporation against the widour
and heirs of Bertrand, that the latter had no
title to the lot, and was compelled to take down
the buildings thereon. The answer proceeds
as follows:
"And the said defendants further say, that
even supposing, which they do deny, that the
Spanish government would have at any time
made an absolute grant of the said parcel of
227*] land *to the said Beltran or Bertrand,
the said grant should be null and void, because
he said purcel of land made a. part of the quays
of this city; that is, one of those public things
which even the sovereign bimaelf had no au-
thority to dispose of to the prejudice of the pub-
lic, without a Qagrant abuse of his powers.
"And these defendants further say that at
the time of the foundation of the city of New
Orleans, under the French government, said
Kovernmetit left between the bank of the river
Mississippi and the lirst row of houses fronting
said river, a large space emptied and unoccu-
pied, under the name of quays, and intended to
serve and to be reserved as such for the use of
the inhobitants of this city, fts they exist in the
several cities of France, and in her colonies;
and as it is proved by the ancient plans of the
city of New Orleans, which have been preserved
in the office of the marine charts, maps and
plans, which existed at Versailles, in France,"
After proceeding to take the evidence of wit
nesses, and on the exhibition of their testimony
with the documentary evidence of the parties,
the District Court, on the 12th of March, 1632.
gave a judgment in favor of the petitioners in
the following terms:
"The plaintiffs allege that the widow Gon-
lales, from whom they derive title, obtained a
grant from the United States of the lot in ques-
tion, and that the defendants have «zteiided tba'
lis
levee so oa to embrace said lot, and eonclnde
with the prayer that they may be d<>creed to ha
the lawful owners, and the defendants enjoined
from disturbing them in the free enjoyment of
their rights as owners of said lot. The de-
fendants oppose this claim upon several
grounds; but the only ono which can be relied
upon with any hope of success Is, that the
space between the front buildings of the citj
and the river was, at the time the city was laid
off under the government cf France, intended
to be kept open for public use, designated as ■
quay, and which could not be the subject of a
grant. If the facta as stated in the answer were
true, the conclusion drawn from them would
be undeniable. The sovereign could not cede
what had been already granted unless tli'To be
retrocession or forfeiture. The only evidence
in support of the defendant's claim is a fac
simile of a plan made by Charlevoix, and by him
'stated to be copied from a. plan de- [*328
fosited in the marine office, made by N. B.
Rg. de la M. 1744, and on which is marked on
the space between tlie front of the city and
the river, the word 'quay.' Names do not
change the nature of things; a quay is an arti>
ficial work, and may belong to an individual
as well as a corporation; but to belong to
either, it must not only exist and have a defined
extent, but must be shown to hare been grant-
ed. It )■ self-evident to everyone who has seen
this space of ground that it is not a quay. The
defendants have shown no other title which can
be validly opposed to the grant under which
the plaintiffs claim; there is no material differ-
ence between this and the case of Met7.inger
and the defeniiflnts; that was a grant under
the King of Spuin; this a grant under the
United States, who have succeeded to the same
rights. Had the defendants sheltered them-
selves under their charter, and shown that the
public safety required that the base of the
levee should be extended to prevent inunda-
tion, or that it was necessary for a public way,
the case might have presented a different aspect.
"It is ordered and decreed that the defend-
ants be enjoined not to disturb the plaintiffs in
the possession and free exercise of their rights,
in and to the lot mentioned and described in
their petition, and that the defendants pay
From this dePlBion the corporation of New
Orleans appealed to the Supreme Court of the
State of Louisiana. In February, 1033, the
Supreme Court affirmed the judgment of the
inferior court, and the case was iinally disposed
iif by a judfrment in favor of the original peti-
tioners, a rehearing having lieen refused, on the
J7th of March, in the same year.
The mayor, aldermen and inhabitants proae-
cuted this writ of error; and the followlnn
errors in the judgment of the Supreme Court of
(.ouiaiana, were as^ifjned by the plaintiffs la
error, and came up with the record:
"Tbe iudtrmenl of Ihe Supreme Court of
the Eastern District of the State of Louisiana,
affirming the j'dgment of the court of the flrst
iislrii I i>r suio oiate is erroneous, and ought to
be reversed, and judgment ought to be rendered
in favor of tlie ptatntiffB in error, with costa;
for the following reasons, and such others u
may appear on the record:
■"L The spot of ground in eontro- [*22t
P«to» %,
uss
Thx Uatob, km., or Knv Oujcamb *. Di Abuas i
1 CucilUA
Tsij niftkea p*rt of kd open epaca in front of
the dtj of New Orleuia called a quaj, which,
bj the ancient plans of the city, waa eonatituted
ft quftj. or public place, and dedicated to pub-
Ua use u well b; iti designatioa on said plana
aa by the aovereigu authority, and bj iti lue
and occupation for public purpose!.
"2. The right of the former sovereigna of
Louirian* orer thia place waa a matter of pre-
rogative, varying according to the inatitutionB
of the different goTeromentt which have held
Louisiana, but always inseparable from the
•overeignty.
"3. The right of use of this place by the
public is a vested right; is a specirs of property
in which the inhabitants of Louisiana are pro-
tected under the third article of the treaty of
"4. By the treaty of eeasion Louiiinna was
ceded in full aovereignty to the United States.
"S. The United States held this sovereign
power during the time they held the sover-
eignty of Louisiana; but by the admissioa of
Lmiieiaiia into the Union, this branch of sover-
eignty waa vested in the State of Louisiana,
and under the Constitution could not exist in
the United States.
"S. The power of regulating the use
■ppropriating or changing the destinati
I belongs to the i
I of
ign power
"J. Since the admission of Louisiana into
the Union on a footing with the original States,
the United States had no power to interfere
with the property or use ol any public place in
Louisiaua.
'%. The plaintiffs in error, who are, under
tke laws of Louisiana, the proper parties to
vindicate the public rights, held the place in
cinitroreny by permission of, and by the au-
thority of the State of Ix>uisiana,as will appear
tn the charter of the city of New Orleans and
the laws of the State, and claimed the undis-
tnrfaed use thereof by virtue of the treaty of
cession and under the Act of Congress passed
on the Bth of April, 1612, for the admission of
Louisiana into tne Union; and the decision of
the Supreme Court of the Eastern District of
Louisiana is against the title, rights, and privi-
leges thus claimed by the plaintilTs in error,
and In this is contrary to the proviHions of the
treaty and law of tbe United States, and ought
therefore to be reversed."
a*0*] "Mr. Clay and Mr. Porter, for the de-
fendanta in error, moved to dismiss the writ of
error for want of jurisdiction.
The jurisdiction will be attempted to be sus-
tained on the allegation that the questions in
the cause depend on the treaty by which Loui'
siana was ceded to the United States. It was
understood that In some cases the court had
permitted a cause to I>e argued on the merits,
before the question of jurisdiction was decided;
but this was when the whole of the matter* in
the cause wore so intermixed as not to permit
the point of jurisdiction to be separately exam-
ined. Such is not the fact in this case. The
qvestion of jurisdiction stood forth from the
If the jurisdiction can be supported, it will
rett on the first, second and third articles of the
rxniisiana Treaty, and principally on the third
artlclo, which declarat that Louisiana shall be
incorporated into the Union, and in the mean-
time that the inhabitants should be protected
in their property. The execution of the pro-
vision of the treaty to incorpornte Louibiitiis aa
a State of the Union, was looked to in thus se-
curing the property of the inhabitRnts. It was
not necessary to provide for tbe rights of prop-
erty afterwards. From the time of the incorpo-
ration, property in the State was held under the
guaranty of the Constituiion of tbe United
States, as the property of the citizens of other
States is held. After the admission of Louisi-
ana into the Union, as a State, the treaty
ceased to operate. From that time the rights of
properiy dependt-d upon, and are to be decided
by, the laws and by the courts of the State.
But if these are not the effects of the admis-
sion of Louisiana into the federal family, this
is not a case arising under the treaty. The pur-
pose of the twenty-iifth section of the judiciary
law, under which the jurisdiction in this case
is claimed to exist, is to enable this court to
carry the Constitution, treaties and laws of the
United States into execution. Owings v. Nor-
wood's Lessee, S Cranch, 244; 2 Cond. Rep.
27S. The case must arise out of — spring out
of, a treaty; be created by the trea!y, or tbe
right claimed be given by the treaty, and which
requires the courts of tbe United States to give
force to the treaty.
The title of the defendants in error originated
during the existence of the right of the Spanish
crown of Louisiana, and 'was after. ('aSl
wards confirmed by patent from the United
States. The plaintiffs in error claim the lot
in controversy as a part of a quoy which be-
longed to the inhahitanta of New Urleans. and
so designated in a map; it having, as they al-
lege, been appropriated for public use before
the cession of tbe territory. Thus both the
parties claim under the Spanish crown, and
assert their rights as having existed prior to the
treaty, and neither claims under the treaty.
The treaty has nothing to do with the title of
i:ither, and in the State courts nothing was said
of it. The property was granted before the
treaty, to Bertrand, and is now in the grantees
of his heirs, under the Spanish grant; or, at the
time of the cession, it was vacant, and has
since been granted by a patent and is held
under that patent.
Again. It is not a case arising under tbe
treaty, in which the derision has bei'n against
tbe treaty. The decision is in favor of the
treaty. Both the corporation of New Orleanb,
and the defendants in error, were intended to
b« secured by the treaty. The decision of the
Supreme Court of Louisiana is in favor of a
right under the treaty, and under a patent
granted by a law of the United States. There
ia, thus, a perfect neutrality in tbe parties as to
the treaty.
It is now contended that the plaintiffs ia
error claim under the Act of Congress of 1812,
by which Louisiana was admitted into tbe
Union as a State. It has not been before as-
serted that the city of New Orleans claimed
under that law. The question in the courts of
l..ouisiana was whether the Kin(; of Spain had
granted, and whether he had authority to grant,
the lot in controversy; it having been previ-
ously dedicated to public uses. The city of
New Orleans claimed under a dedication in
IIJ
ttl
CoDiT or THX UmiH) States.
1788. The Act of 1812 did not Interfere with
or ftffeet either of tbese OBeerted nglits. It did
not authorize the State of Louisiana, thus
made a sovereign State, to interfere with tlie
righta of the city of New OrlcanB. The prop-
erty never belonged to the titate of Lotiiaiana.
If, kt the time of the admission of the State
into the Union this property passed to or be-
longed to the State, tlie State might interfere
in the question between the parties to this case,
which has not yet taken place. But if such
right existed, or does exist, it may yet be pre-
sented, a* it could not he affected by the de-
cision in this case. Louisiana, as a State,
9I2*J *has no other right to come into this
court than have the other States of the Union.
Mr. Webster, against the motion.
It has not Leen the practice of the court to
discuss questions of jurisdiction, when so
timately blended with the facts and merit
the ease, as are these in the cause now before
them. If they And the question so connected,
they postpone a decision until the whole argu-
ment is heard; and this is desired by the plain-
tiffs in error.
It early becomes a question in what manner
the questions in a case which had been before
a State court, should be made to appear so that
jurisdiction of them could be taken in tli
court. It became afterwards settled that if,
the whole proceeding, it was manifest that a
party set up under a law or treaty or the Con-
stitution a right, and a decision was against
that rigiit, this court could intervene and exer-
cise its revising power over the case. The only
question in this case is, therefore, whether a
right of this kind was claimed by either of the
parties now before the court.
The (question of jurisdiction is identical with
the main question between the parties. The
claim of the plaintiffs below was founded on a
paUnt from the United States and the State
court held it valid. Thus their whole title de-
pends upon the validity of the patent. The
claims of the City of New Orleans are under
the treaty by which tlie property of those
claiming under the governments which had
held Louisiana was assured to them. The cor-
poration of New Orleans claim under the treaty,
asserting that the property was dedicated to
Sjhlie uses and belonged to the city of New
rleans. The princip)es on which their right
rests were settled in this court in the Cincin-
nati and Pittsburgh cases. Lessee of Howell v.
Barclay, S Peters, 408; Lessee of Whit« v. The
City of Cincinnati, 6 Peters, 431.
If the property in dispute was in the inhabit-
ants of New Orleans at the time of the treaty,
it was out of the power of the United States to
grant it to those under whom the defendants
in error claimed. The decision was against the
treaty, which secured the property to tlie
plaiutilTs in error, and in favor of a patent
which was given in violation of the treaty.
The question is, whether the Act of 1B12
IZi'] operates in the 'case. The treaty is
[lart of the title which was completed by that
wt. The creation of Louisiana into a State
made this State the guardian and trustee of all
4he property which had before that event be-
come vesti'd in the inhabitants of that part of
the Territory of Louisiana. The rights thus
guaranteed by the creation of the Stata of
lis
Louislaoa by the Act of 1812, ban been Hb'
regarded by the Supreme Court in their deci-
sion in favor of a patent issued after that act.
The assignment of errors shows that the pro-
tection of the treaty was claimed by the plain-
tiffs in error in the State court; and the opinion
of Judge Martin, one of the judges of the Su-
preme Court of Louisiana, is also evidence of
tliis position. The app}ication of the Act of
181^ to the case was in that court overruled,
and the plaintiffs in error say that in so doing
the court misconstrued the act.
The plaintiffs in error contend that the lot
in quesLiun was appropriated land in 1788, and,
by the Act of 1812, it passed as such into tha
jurisdiction of the Slate of Louisiana, as the
other property of citizens or inhabitants of the
State, and could not afterwards be interfered
with or granted by the United States. The
effect of the Act of 1812 was to transfer the
property to the State for the uae of the inhabit-
There are many rights which are in the StMe,
which, if violated, may be brought before this
court. Thus rivers and highways, if inter-
fered with, are such ri^ta. Could not Loui-
siana, in cases of this kind, come into this court
under the Act of 1812 f
Mr. Chief Justice Marshall delivered the
opinion of the court:
The appellees claim title to a lot of ground
in the city of New Orleans, as purchasers fros
the heirs of Catharine Gonzales, the widow of
Thomas Beltran, alias Bertrand, who had bees
in possession of the lot for several ye«ra, b^
permission of the Spaniah govemment. This
incomplete title was regularly condrmad under
the laws of the United States, and a patent
was issued for the premises to Catharine Gon-
ules, on the 17th of February, 1S21.
The city of New Orleans, claiming this lot
as being [lart of a <|uay dedicated to the use <rf
the city in the original plan of 'the [*9Xi
town, and therefore not grantable by the king,
has enlarged the levee so as to embrace it. Tlw
appellees brou^t their petitory action in tlw
restrict Court of the State of Louisiana, pray-
ing to be confirmed in their rights to the said
lot of ground, and that the corporation might
be enjoined from disturbing them In the exer-
The District Court pronounced its judgment
in favor of the petitioners, which, on appeal,
was affirmed by the Supreme Court of tlM
State. This judgment of affirmance has been
removed into this court, under tha twenty-fifth
section of the Judicial Act.
The merits of the controversy cannot be re-
vised in this tribunal. We can inquire onlj
whether the record shows that the Constitu-
tion, or a treaty, or a law of the United States,
has been violated by the decision of the State
court. The appellees moved to dismiss the
writ of error, because no such violation af-
In support of his motion, the counsel has, we
think, in his argument, prescribed too narrow
a principle for the action of this court. Ha
says, very truly, that the tweoty-flfth section of
the Judicial Act is limited by the Constitution,
and must be construed so aa to be conHncd
within those lintita; but he adds that a ease <•■
Tub Unrm Statkb t. Bulev.
artoe Dsder the Conctitutfon or « treat* onl^
when the right i> created by the Conetitutton
or by a treaty. We think di.Terrntly. This
eonstruttion would defeat the obvious purpose
of the Conititution, as well as of the act of
OoDgreaa. The language of both instruments
extends the jurisdiction of this court to rights
protected bj the Coostitution, treaties, or laws
of the United States, from whatever source
thoM rights may spring.
To sustain the jurisdiction of the court in
the case now under consideration, it must be
■hown that the title let up by the city of New
Orleans is protected by the treaty ceding Loui-
nana to the United States, or by some set of
Congresa applicable to that title. The counsel
fa support of the motion contends, and we think
correctly, that the treaty does not embrace the
The first article makes the cession, and the
pressed in these words, "the inhabitants of the
SIS'] 'ceded territory shall be incorporated
In tlM Union of the United States, and admit-
ted aa soon as possible, according to the princi-
ple! of ths federal Constitution, to the enjoy-
ment of all the rights, advantages and immuni-
tlea of cltitena of the United States; and in the
meantime they shall be maintained and pro-
tected in the free enjoyment of their liberty,
property, and the religion which they profess."
No other article of the treaty is supposed to
eontain any stipulation for the rights of indi-
Tidnala. This article obviously contemplates
two objects. One, that Louisiana shall be ad-
mitted into the Union aa soon as possible, upon
■a equal footing with the other States; and the
other, that, till such admission, the inhabitants
df the ceded territory shall be protected in the
free enjoyment of their liberty, property end
nligioD. Had any one of these rights been
violated, while this stipulation continued in
ftnce, the Individual supposing himself to be io-
jntcd might have brought his case into this
eonrt, under the twenty-flfth section of the
Judicial Act. But this stipulation ceased to
rate when Louisiana became a member of
Union, and its inhabitants were "admitted
to the enjoyment of all the righta, advantages
and immunities of citizens of the United
States." The right to bring questions of title
decided in a State court before this tribunal, is
not classed among these immunities. The in-
habitants of Louisiana enjoy all the Bdvant:i;;c9
of American citiiens, in common with their
brethren in their sister States, when their titles
are decided by the tribunals of the State.
Tbe counsel for the appellant scarcely hopes
to maintain the jurisdiction of the oouii under
the treaty, bnt seems to rely on the act of Con-
greaa for admitting the State of Louisiana into
tbe Union. The section of that act which is
■Bppoeed to apply Is in these words, "be it en-
aeted, etc-, that the said State shall hMome,
•■d ia hereby declared to be one of the United
States of America, and admitted into the Union
■B an equal footing with the original States in
an reapecta whatever, by the name and title of
the State of Louisiana-
TUa simply carries into execution the third
artietc of tne treaty of cession, and cannot, as
haa already been obserred, be construed to
■ Zi. ad.
give appellate jurisdiction to this court over aQ
questions of title between the citiiena of Loui-
siana. It in any case suc^h jurisdiction could bt
supposed to be given, it might *be [*9SI
where an act of Congress attempted to devest a
title which was vested under the pre-existing
government. Therefore, the counsel opposing
the motion contends that the jurisdiction of the
court is involved in the merit* of the contro-
versy, and cannot be separated from them. We
do not think so. The controversy in the State
court was between two titles: the one originat-
ing under the French, the other under the
Spanish government. It is true the successful
party had obtained a patent from the United
States, acknowledging the validity of his pre-
vious ini:oniplete title under the King of Spain.
But this patent did not profess to destroy any
previous existing title; nor could it so operate,
nor was it understood so to operate by the
State court. It appears from the petition filef
in the District Court that the patent was issued
in pursuance of the Act of the Ilth of May,
1820, entitled "An Act supplementary to the
several acts for the ailjustment of land claims
in the State of Ix>uis!ana." That act confirms
the titles to which it applies, "against any
claim on the part of the United States." The
title of the city of New Orleans would not be
affected by this confirmation. But, independ-
ent of this act, it is a principle applicable to
every grant, that it cannot anect pre-existing
titles. The United Statea t. Arredondo, S
Peters, 738.
The judgment of the State court appears on
the record to have depended on, and certainly
ought to have depended on, the opinion enter-
tained by tliut court of the legal rights of the
parties under the crowns of Prance and Spain.
The case involves no principle on which this
i^ourt could take jurisdiction, which would not
apply to all the controversies respecting titles
originating before the cession of Xouisiano to
the United States. It would also comprehend
all controversies concerning titles in any of the
new States, since they are admitted into the
Union by laws expressed in similar language.
This writ of error is dismissed, this court
having no jurisdiction in the cause.
On consideration of the motion made In this
cause on a prior day of the present term of
this court, to wit, on Saturday, the 24th of
January past, and of the arguments of counsel
thereupon had, as well for the plsintiffs in error
as for the defendants *ia error; it is now [•23T
here ordered and adjudged by this court that
this writ of error to the Supreme Court of the
State of Louisiana for the Eastern District be,
and the same is hereby dismissed for the want
of jurisdiction.
•THE UNITED STATES, PlaintHTs, ['SJ8
JOHN BAILET.
Indictment for false swearing — affidavit before
Stale magistrate supporting a claim against
Unitrd Slates— re pulation of Secretary of the
Treasury authorizing the same — ^lonstruction
of Act of March 11, 18S3.
BrrBOtc Couir or thb Uicmm (JTAXBh
UBrch 1. 183S, wbleb d^elirti tbat "aof prrioD
who jhafi HHr or »fflrm (»lsel», touching the m-
pmdlture of public diddv;, or in nuiiporl of any
Claim oeilnil tbr United Sliles. BliBll ■uIFcr u lor
Willful BDd corrupt perjury.'
The Indlclaicnl charged the falie Boeiirlng to be
■n alSdavlt mide before a justice of Itie peace of
Kentucky, In support of a claim against the United
Stain, under the Act of fongrcM u( July, is;i:;. lo
provide for liquidating and paying certain clalini
of the Blate of Virginia.
There Is no elatuie of the United Slatei wblch
aipressly aiithorliei any liiatlce of tbe peace of a
BlBte, or any officer of the national gOTernmcnt,
Judicial or otherwise, to administer an oath In aup-
port of any claim against [be United Ulates, under
the Act ot 1S23.
».... c , .^_ ™ . ..__ ., p^^jj
..inldate
n the Act oi 18:12.
bad establlBhcd a TogulaCIonBu ' '' -■ ■■
made before any Juatlce ot the i
be received Bnil considered In proof ot eh
der tbe act. By ImpllratloD he posaesacd tbe power
to moke such a reeulatlon, and to allow aucb aOl-
darltB In proof of clalma und^r the Act of 1HH2. It
was Incident to bis duty and authority In settling
claims under (hat act. When the ODlh la taken be-
laCIODB
orlied t
administer oaths. In
Iireacrlbed by the Treaaury I'epnrrmoni. or in con-
ormlty wllh the practice and u«age ot tbe Treas-
Dry Department, so that the BfnOavIt would be ad-
miBslhle eildence at the di'partmcnt In aupport of
any clntoi acalDSt tbe United Btatea. and the party
Bvears falsely, the case Is wlthlB the provlsloo of
*— 'ct of 182S — ■""
3, cb. lea.
If B dtale magistrate shall ndmlnlqler an OBtl
m<1er rvn not of Congrr"* einn-siily ItlylnB him thl
I would be a lawful oath, by ont
baving compeleL , .._ _. ._
ider a Ian of the T.inlteiT Statca for that purpope :
' aod GiilwtantlHl dTi-qi
I be adml
! Of
Erjury. Tbe oath, therefore, need
ered Id a JuUldal proL-eeUIng, or
which the Rtate magistrate unaer I
bad Jurisdiction, so ns to make the isiac enenring
perjurr. It would be Bumdent that it mljtlit be
not In violation ot hla 'official duly! ' '° *"
The lansuBCP ot the Act nt ln;;;i should br con-
Btnied with reference to the unages of tbe Treea-
ury Di'partment, The taiKe swearing and false
Bfflrmntlon referred to In the ait. ounht to be con-
matlon required by tbe praetlce^of the departmeBt
The langUHi,- -. -..- — .
aao*] •Include all such emtn: and the . _ ..
reason for eicepllng them from the words, as the
are wlibin the policy ot the act and the i ' ' '
offen-e
a statute offcnae.
ON A certificate of division in opinion be-
Hvurn the jiitlpea of the Circuit Court of
the United htatcs for the Di«trict of Kentucky.
At the November Term, 1B.14. of the Circuit
Court of the United Stitea for the Kentucky
District, an indictment wan found against Jtihn
Bailey for perjury and false swearing, under
the third section of the Art of Conirrcss of
March 1, 1B23. 3 Story'a I^ws U. S. 1»IT: the
tiiitleenth section of the Act of March 3, 1825;
I Story'a Iaws U. S. 20O2.
The third HCtlon of the Act of March 1,
1823, entitled "An Act in addition to the Act
entitled an Act for the prompt settlement of
piiblie aci-oiuita. and for the punishment of the
crime of perjnrv," is in tlip'c worda: "thnt if
Nora. — Criminal Inw ; the osth mu«t he lawfully
administered to be conirett'nt autborlly to convict
of perjary.— M« Dole to 21 L. mL U. a. &34.
any peraon aJiall aweu or afRnn faltelj, toneh-
ing the expenditure of public money, or in
support of any clHim against the United
States, he or she thai], upon conviction there-
of, Buffer BB for willful and corrupt, perjury.
Tbe thirteenth section of the Act of March 3,
1825, entitled 'An Act more effectua.lly to pro-
vide for the punishment of certain erimea
againat tbe United States, and for other pur-
poses,' duclarel: 'that if any person in kny
case, matter, heikring, or other proceeding,
where an oath or affirmation shall be required
to be taken or administered, under or by any
latr of the United SUtes, shall, upon the Uk-
ing of such oath or affirmation, knowingly and
willingly, swear or affirm falsely, every peraon
so offending shall be deemed guilty of perjury,
and ahall, on convietlon thereof, be punished,
eta.
Tha indictment charged the defendant, Jolin
Bailey, with perjury and false aweoring, upon
the following affidavit, mode by him before a
justice of the peace of the Commonwealth of
Kentucky.
"The Commonwealth of Kentucky, County
of Bath, to wit:
"The afBdavit of John Bailey, one of the
executors of Captain John Bailey, deeeased,
states that be is not Interested in said eatate;
that Warren Bailey, Juu., and James C.
Bailey, who have joined with him in a power
of attorney, to the Honorable Richard H.
Johnson, to draw any moneys that may be due
'them from the government of the [*S4*
United States, are the residuary legatee*, and
eolely inlerestedj that he ii years of age,
and the Bon of said John Bailey, deceased,
who, from his earliest recollection, was ra-
puted ft captain in tbe Bevolutionary Army,
and in the Illinois regiment; that he has seen
his father's commission, and thinks there were
two; of that fact he will not be certain', but it
is fail strongest impreaaion, and is perfectly
confident that the commissions, if two, both
were signed by Thomas Jefferson; that bit
father'a papera fell into his handa, as executor,
and he has made many fruitless aearchea for
them, and can in no wise account for their loaa,
imtess they were given to General Tbomaa
Fletcher, deceased, while a member of Con-
gress, to ses if he could get anything, aa af-
Rant knowa that hi a father applied to aald
Fletcher to do something for him, and under-
stood afterwards, the law liad made no pro-
vision for cues situated like said John Bailey's.
As witness my hand knd seal thia of
November, 1632.
-John Bailey, tSeaJl,"
The record of the Grciiit Court contained
the following statement of the facts and pro-
ceedings of the case, and of the division of
opinion by the judges of the court.
"The attorney for the United States read in
evidence the papers aet out in the indictment
purporting to be the affidavit of the priaoner,
with the certificatcB of the said Josiah Rccd
and William Suddeth, and gave evidence t«
the jury conducing to prove that the pristmer
did, at the time and place charged in tha In-
dictment, take the oath as charged, snd sub-
scribe the paper set out in the indictment as
bis afTidBvit before the aaJd Reed, and that the
aaid Beed waa tfaan aad Uwr« » juatice of the
ISSfi
Thx Ukitco Statbi v. Bailev.
ftaea of the Commonwpaltb of RentiKky, in
and for the Mid County of Bath, duly com-
miMioned, qualified, and acting aa such, and
klao gave evidence conducing to prove that,
immediately after the poxBRge of the laid act
of Congresi of the Sth day of July, 1932, en-
titled 'An Act for liquidating and paying cer-
tain claims of the BUte of Virginia,' the Sec-
retarj of tie TreaBury did eitabliah, as a ref-
lation for the government of the department
and ita officera, in their action upon the claimi
ia the a«id act mentioned, that affidavits made
and aubaeribed before aay justice of the ppace
«f any of tlie States of the United States,
S41*] 'would be received and considered to
prove the persona making elaims under said
act, or the deceased whom they represented,
were the persons entitled under the provisions
tfaereof, and that the said regulations had been
ever since acted under at tlie department, and
numerous claims heard, allowed and paid on
■neb affidavits, and also gave evidence con-
docing to prove that tbe prisoner, acting a* the
executor of his father, John Bailey, had, be-
fore tbe time of making and subscribing said
affidavit, asserted the claim therein mentioned,
and employed Thomas Triplett to prosecute the
■ame and receive the money thereon; that the
•aid Triplet t did afterwards present tbe said
affidavit and certificate s, in support of said
claim at the said department, on wblcb, to-
Cether with other affidavits, the same was al-
lowed and the money F*>^< *-"<) *> Pf-'^ thereof
paid to the prisoner. The above being all the
evidence conducing to prove the authority or
Joriadiction of the aatd Josiafa Reed to admin-
later said oath and take said affidavit, tbe coun-
sel for the prisoner moved tbe court to instruct
tbe juTj that the said Josiah Reed had no au-
thority or jurisdiction to administer said oath
or take said affidavit, and that whatever other
facts tbey might find on the evidence, the
prisoner could not bave committed the crime
of perjury, denounced by tbe thirteenth sec-
tion of the act of Congress, more effectually
to provide tor the punishment of certain claims
against tbe United States and for other pur-
poses, 'approved on the 3d of March, 1825,'
nor of false swearing denounced by the third
Mction of tlie Act 'in addition to the Act' en-
titled 'An Act for tbe prompt settlement of
pub'ic accounts and for the punishment of tbe
crime of perjury.' approved on the Ist of
March, 1SZ3, and their verdict ought to be for
tbe prisoner; which motion the attorney lor
tbe United States opposed.
"On this question the judges were divided
and opposed in opinion, whereupon, on the
Diolion of the attorney of the United Statea,
tbe saiil question and disagreement are stated,
and ordered to be certified to tbe Supreme
Court."
The case was argued by tbe Attorney -Oener-
al and Mr. LouKbhoroog^, for the United States.
Mo counsel appeared for the defendant.
f4f] 'For the United States the following
points were made:
1. That the Act of tbe Sth of July, 1S32, is
fa pari materia with the other acta of Congress
npoa tbe subject of claims for revolutionary
•ervices, and that evidence under it may legal-
ly be taken, as in cases of claims under those
•tbcr Uws. 3 Story. 1W3, 1730, 177B, 1927.
2. That the Secretary of the Trensiiry pur-
sued the intent of the Act of 1832 in requiring
the sfTidavit in this case; and that the oath falls
within the thirteenth section of tbe Crimes Act
of 1826.
3. That the Act of 1823 embraces all oatha
that, by the usage of the government, are re-
ceived as evidence in support of claims against
die United States.
4. That the justice of the peace bad jurisdie*
tion to administer this oath under tbe said act.
0. That the act embraces every case of swear-
ing in which a false oath is actually taken, and
the affidavit is used fraudulently in support of
a cUiDi against the United States.
8. That this construction of the act creates
no new olTcnsei the evidence against the pris-
oner showing an offense which nould be pun-
ishable if the Circuit Court had a common law
jurisdiction of crimes. 1 Hawk. 430 ; Noy,
100) Moore, 627; Hob. 02; 8 East's Rep. 304.
7. That in a prosecution upon tbe Act of
I8£3 it is not necessary to a conviction to show
the requisites of technical perjury.
Mr. Longhbotougb, for the United States.
The indictment is founded upon the thir-
teenth lection of the Crimes Act of lft25 (3
Story, 2002) and the third section of an Act of
1823. 3 Story, IBIT. Two counts of the in-
dictment charge the offense of perjury under
the first-named lawj and two, the offense of
false swearing denounced by the Act of 1823.
Tbe oath was made before a justice of the
peace of the Commonwealth of Kentucky, in
support of a claim by the prisoner against the
United States, aa tbe executor of his father,
John Bailey; falsely alleged to have been a cap-
tain in the Illinois regiment in the Army of the
Revolution, for the amount of half pay due to
such captain, in virtue of the provisions of an
Act of Congress of July Sth, 1632. entitled "An
Act to provide for 'liquidating and pDV-[*343
in^ certain claims of the State of Virginia."
The objec-tions to the prosecution in the
court below took a wide range. It was urged
on behalf of the prisoner that tbe oath upon
which perjury or false swearing is assigned
must be a legal oath; that is, an oath taken be-
fore an officer having a jurisdiction to admin-
ister it; tliat Congress should not confer upon
the justice jurisdiction to administer this oatb;
that such jurisdiction hnd not in fact been con-
firmed by Congress; that tbe practice of the
government, and the regulations of the trcaa-
ury, could not give the jurisdiction; that tbe
United States could not punish the swearing
falsely, in an oath taken before a Slate officer.
The point certified for the opinion of this
court regards the jurisdiction of the justice;
the difficulty in the mind of one of the judges
below existing on tbe ground that the oath in
the case had not been authorized by act of Con-
gress to be taken before the justice.
As to so much of the objections to the prose-
cution as rPsts upon assumed constitutional
grounds, little need be said. It is not supposed
they would be seriously ur(:cd in this tribunal.
A glance at the stntute books of the United
^^taten will show what hns been the sense ci
Consfrpss upon the subject.
The first act of Congress, after the adoption
of the present Constitution, authorized oatu ta
be administered by State officer*.
us
E CouBT uF TUB Unites Statia,
OathB of ciistoTn-houite officers may be tal:en
befoTB State juBtices. Story, 17.
Deposit] ODB in cuurts of the United States
nay be ouule before State judges (IStorj, 61];
and perjury in them is punu^jliable by t)ir
United States.
By an Act of March 3d, 1810, oaths therein
directed caaj be made before State olticers, and
fftUe swearing is expressly made perjury. 3
Story, 1736.
False swearing before State odicers in sup-
port of claims for pensions, under the acts of
1818 and 1820, Is expressly made punialiahle
fta perjury.
Inslanecs might be multiplied to show that
Congress frequently avails itself of the agency
944*] of State officers in executing 'its laws,
Mid supposes its power competent to the pun-
hhment of offense* committed by, or before
To deny these powers In the federal govern-
ment would be to create a necessity for a great
multiplication of federal oj&cers to discharge
duties now well performed by State function-
aries. That Congress might avail Itself of the
agency of State officers, was admitted at the
period of its adoption. See The Federalist, 62
•nd as late as the case of Houston v. Moors, 3
Wbeaton, 433; 4 Cond. Sep. 280. It is not a
question whether Congress can compel a State
officer to perform a duty, or make an obliga-
tory enlargement of his jurisdiction. Here the
justice has exercised the Jurisdiction.
Acts upon the same subject should receive
the like construction. This is one of the lound-
Mt rules. The Act of July 6, 1832, under
which this oath is taken, is in pari materia with
tbe other acts for the payment of claims for
revolutionary services, as pensions and half-pay.
These acts constitute a system of legislation.
How may other claims for pensions and half-
pay be obtained t
Previous to 1818, evidence for pensions was
to be made before federal officers. See acts of
1793, 1803, and 1B06. Story, 304, 003, 1008.
But by the Act of 1816 (Story, 1682), the
President and Secretary of War were author-
iEed to prescribe forms of evidence in cases un-
der that act, for Sve years' half-pay pension*.
mode before State officers: Act of 1819 (Story,
1739), Act of 1820 (Story, 1778), Act of 1823
(Story, 1826).
The Act of May IGth, 182S, directs pensions
to be granted to those who shall produce to the
Secretary of the Treasury "satisfactory evi-
dence" that they are entitled. This act places
upon the pension roll a distinct class of persons
not before entitled.
The Act of June 7th, 1832, is supplementary
to that of 1828. It places also upon the roll a
new class of persons, who shall produce "sat-
bfactory evidence" that they are entitled.
Under these last two acts, a very large nniQ-
ber of pensions have been granted; and five-
sixths of them upon oaths made before State of-
Beers. Are these oaths illegal and unauthor-
iiedT Have the pensions been improperly
345*] granted! Shall they now *be orrestedl
Neither of the acts authorizes State ofUcers to
administer the oaths which were received oa ev-
idences by the department. Th«M a«ta metelj
11<
required that the evidence should be "satisfac-
lory" to the secretary. By receiving under
tliem evidences made in the manner expressly
suthoriKcd by Congress in similar cases, under
lnws relating to the same general subject, did
tlie department pass bevond the line of its dutyT
The certificate shows that the affidavit in this
case was made pursuant to a rcj^ulatioD of the
Secretary of the Treasury, to carry into effect
the Act of July Gth, 1832. That act devolved
upon him the performance of a certain duty.
To perform this duty, it was essential he should
inform himself in every case arising under the
act of certain facts. Who are the identical of-
ficers entitled to half-pay^ whether living or
dead, and if dead who their representatives sre:
these ore things of which it is manifest the Sec-
retory of the Treasury coutd, as such, have no
intuitive knowledge. The act of Congress
gave him no knowledge upon these points. It
is general. To tbe oflicers or their representa-
tives he shall pay tbe money. The act does
not prescribe the mode in which he shall be in-
formed. It was essential, then, that it should
be prescribed by himself. As he is to be satis-
fied of certain facts, it is for him to say to
claimants how they shell proceed to effect that
object. He haa prescribed the mode of pro-
cedure, and in doing so, must be supposed to
have exercised a power vested in him by neces-
sary implication. Was it illegal or improper
for him to make a regulation, when without a
regulation the law must have remained a dead
letter I
Then, as to the nature of the regulation made
by the secretary. It is to receive as evidence
an oath before a State justice of the peace— a
mode of evidence expressly prescribed by Con-
gress in similar cases of claims against the
United States, under laws in pari materia with
that which he was executing. Not only, then,
has the secretary adopted no novel or improper
mode of proof, but he has only availed himself
of an instrument placed under his control in
like cases, and which, when the uniform prac-
tice of the government is considered, Congress
must have supposed at bis disposition in a ease
in which no other direction is made by it.
*It has been the uniform practice, it [*24C
is believed, of the government, to receive in
support of claims against the United States,
evidence such as the present. In the various
accounting ofRcers of the treasury, depositions
and affidavits before State officers are and have
been taken as competent proofs in support of
claims and accounts. Congress, and its various
committees, have also been in the constant prac-
tice of receiving these affidavits as competent evi-
dence in support of claims. In the judiciary
department of the government, also, it has been
and is yet the practic* to receive as affidavits
papers sworn to before State magistracy. It
will be strangs if It shall now for the first time
be discovered that these oaths are not such
legal oaths as that they who falsely take tlwia
may be punished— strange that Congress and
every other department of the government
should have remained in darkness till tb*
present day— and that a practice, coeval with
the government, shall have now to be set aside
as erroneous. If such be the case, then it wiU
result that things may be oaths for some pur-
poses and not for others; that a paper may b«
Thk Uhtrd &T*na y. Bailkt.
■■ kllidJiTit for the jmrpaee of effecting s fraud,
and 7et not one for the purpoee of judicUl ax-
The thirteenth leetion of the Crime* Act of
IS26 inkkei it perjury to awear falMlf in any
eaae, matter, liearinK or other proceedings,
whenever «n okth ihan be required to be taken,
mder uij act of Congreu. ouch waa the oath
in the present caM. Thii waa a proceeding b;
t*ken by the Secretary of the Treaaurf under
the Act of Jnly 6th, 1832. It hoe been at-
tempted to be ahown that the Secretary of the
Trcasnry holda the power to require this oath.
If thia be ao, it reaulta that the juitjce bad
juriadietion to administer it. He had such a
jurisdiction as t)ie Secretary of the Treasury
deemed competent. And ae he hai exercised it,
and the paper baa been uied aa an affidavit or
■worn paper by the party, the objection of the
want of jurisdiction will not lie.
It i* not necessary at common law, inaproi-
•cntion for perjury, to show that the osth was
expressly directed by an act of Parliament.
Perjury may be committed In false swearing in
oatha taken before commissioners appointed
B4T*] *by the king to examine witnesses In
relation to any matters concerning his honor or
Interest, are perjuries (I Hawk. PI. 430); or
before commissioners to inquire of the for-
feiture of his tenants' estates. Soj, 100; Moore,
■27 ; Hob. Hi. In Connecticut it has been
settled that wherever the administration of an
«atfa is latrful, that is, not forbidden, false
■wearing is perjury at common law. 2 Conn.
Rep. 30. Hprc, the justice is as the commis-
sioners appointed by the crown to examine a
witness concerning its Interest. At common
law, and in England, then, the offense in this
case would he a perjury; and the construction
«f the Act of 1B25, which makes it embrace
this ease, creates no new offense; nor an offense
whicb the court below would not have power
to pnnlsh. If it possessed a common law juris-
iktion of crimes.
If, however, the case does not fall within the
Aet of 1825, It Is respectfully contended that
it ts embraced by the Act of 1823 for the pun-
tsfament of the offense of false swearing in
support of claims against ths United States.
F^viouB to a discussion of thia statute, we
will examine the doctrinea of the common law
as to fahe oaths. That law does not content
ttiwif tt Lth the punishment of the crime of per-
jnry only. As all false swearing is not, tech-
■icelly. perjury, the common Uw would be
very defective if it visited with punishment the
one •p>i'ies only of this class of offenses. Ac-
nvdingiy, it will be found that the law is not
thus deficient. It is held that false swearing in
fraud of another's right, or to the stoppage or
Undrance of justice, is a misdemeanor, pun-
fihable hj fine, imprisonment and corporal
fsla.
Where an Act of Parliament requires an oath
to be taken, false swearing is not perjury unless
the statute so declares. 4 Christian's Black.
137, note. Will it be said, however, that such
false swearing is no offense? That it is no mis-
demeanor becauss it is bo falonjT
• I^ Ml.
In the case of OHMealy t. Newell, 8 Bast. 9H
a false sIKdavit made in Prance, was prodoesA
and used in the King's Bench. Lord EUsb-
Imrough held it an offense punishable at com-
mon low as a misdemeanor. In that case a
eDsecution in England for perjury could not
sustained, because the swearing was out of
the kingdom. The court could not take eog-
nizance of any fraud committed out of its juris-
diction, in 'this case, supposing the [*S48
court below to have pnaaessed a common law
jurisdiction of crimes, can it be doubted that
the certiflcate shows a misdemeanor on the part
of the prisoner; a false oath actually madS
within the jurisdiction of the court, and used
as a competent and true affidavit in the suc-
cessful perpetration of a fraud? The general
principle of the common Isw, and the coae In
East, irresistibly lesd to this conclusion.
In prosecuting Bailey, therefore, for faiss
swearing, in support of a claim against the
government, nothing was done which the com-
mon law would not sanction. But as it is not
contended that the Circuit Court derives from
taw any power to punish offenses;
to show that the indictment and the
case sbown in the certificate, fall within the
statute upon which the prosecution was based.
In doing this, it will appear that the Act of
1823 creates no new offense. It only prescribes
a punishment for, and gives the courts of ths
Union jurisdiction to try an offense before
known to the common law. It simply converts
a common law misdemeaniH- into the special
statutory offense of "false swearing." As a
statutory offense only, it is a new one. In a
prosecution founded upon the Act of 1823, It Is
not necessary to show the requisites of tech-
nical perjury. It is necessary merely that the
ease be brought within the words of the
statute. This is all that is ever required upon
indictments concluding against the form oi a
statute.
Tbe words of the act are, that "if any person
shall swear falsely in support of a claim against
the United States, he shall suffer," etc. It does
not say how, or before whom, the false oath
punished by it shall be taken. Why was the
act made thus general? Tbe answer is that
the law-mskers were aware of the practice of
the government, in every department, to receive
oaths before State officers in support of claims.
Tbe inconvenience of aboliebing this practical
and requiring claimants to go in all eossa
before federal judges was obvious. Congress,
therefore, left the practice undisturbed, as it
had always existed; but affixed to falsehood in
these oaths the punishment of perjury. Indeed,
considering the uniform practice of the depart-
ments and of Congress itself to receive these
oaths as evidence, and the presumption that it
must have been 'in the minds of the [*»4»
legislators, at the time of tbe adoption of ths
Act of 1823; the conclusion cannot well be re-
sisted that the generality of the language of
that act was of purpose to embrace oaths such
as thU,
Thus regarding the subject, it Is contended
that the Justice had a jurisdiction to administer
this oath under the act of 1323. But It is sub-
mitted whether, upon a true construction of
that act, and the application of it to the fact*
ol this case, a difficulty as to tbe want of juris-
ut
SuPBEUB Comx or tse Uitmo Statu.
IMS
dfction In the justice ema be resisted by one
who has octuall; taken a false oath, and luc-
cess fully used it in support of a fraudulent
claim against the United States. Without any
pirticular intjuiry as to jurisdiction, does not
the act of 1S23 extend to every case in which
a false oath is actually taken in support of a
claim t Does it not embrace every case in which
the oath is, by the admitted practice of the de-
partments, received as evidence in support of
claims! It is contendi^d that it does.
Justices of the peace have, by common law,
■ power to administer oaths in some cases.
Burn's Justice, "Oaths."
In Kentucky, justices have a criminal and
A civil juriEdiction, in matters of tort and coo.
tract; and their proceedings are, by law,
Moorda. 2 Dig. Ky. Laws, 701. The justice
of the peace was, by the laws of Kentucky, as
competent to take this affidavit as the highest
judge of the State, or as any other court of
The Kentucky statute against perjury (2IMg.
Ky. Laws, B94) punishes false swearing, in
eertain cases, before justices of the p?ace.
By the nature of bis office, therefore, the
Justice had a general jurisdiction to administer
(Bthi. It was in contemplation of such a ju-
lisdiction that the Secretary of the Treasury
taade the regulation found in this case, and that
the prisoner took the oath.
Suppose this oath had been made before the
United States District Judge; would not the ob-
jection of tho want of jurisdiction then lie as
well aa nowt No law of Congress has express-
ly authorized him to administer the oath; and
he has no more general right to administer oaths
than the Kenturky justice of the peace.
It is unnecessary to dwell upon the conse-
250*) qucnces to flow 'from a decision of
this case against the prosecution. They are
obviouB. They may be summed up ai consti-
tuting much I'Liblic inconvenience and mischief,
and great private wrong, not to speak of the
Impunity with which frauds, in cases of revo-
lutionary cluma, will have been perpetrated.
Truly, there is nothing in these results to at-
tract the court.
Mr. Butler, Attorney -General, declined go.
ing at large into an argument of the case after
it had been so fully discussed by Mr. Lough-
borough, but would give the court some refer-
ences to provisions of the laws of the United
States.
The third and fourth counts In the indict-
ment are on the Act of 1823. and charge the de-
fendant with "false swearing." The first count
charges perjury, and is not founded on that
act. If the Act of 1823 creating a new offense,
one not before known (that of false awearing
to support clsims on the United States) the
three counts in the indictinpnt can he supported.
The ease admits the fal<te swearing, and this
■ ■ of
before a magistrate was false; why li he not
within the law! The doubt U whether the
magistrate had authority to administer such sti
oath. Thia is the point the court must de-
' ing a crime under the statute, it must rest on
the aasertion that Congress meant to make it
an oITense only where the afRdavit waa taken
b?fars a judicial oflicer of the United States,
or an officer of a Slate specially authoriied t*
administer the oath.
The counsel who has argued the case haa
shown acts of Congress in pari materia. The
Act of 1323, hs rightly says, was passed by tha
Legislature adverting to former acts, and to tha
practice under them.
It has always been tha practice of Congreaa
to give power to State magistrates to adminis-
ter oaths in cases of this kind, or in cases call-
ing for affidavits. The first act passed by Con-
gress (1 Story's Laws U. S. 1) was suchacaae.
The inducement to authorize this practica,
in addition to the convenience it afforded, waa
the indisposition to create a 'great Dum-[*2S1
ber of officers of the United States, having au-
thority to administer oaths and answerable only
to the United States. The allowance of this
power to State officers waa within the princi-
ple which operated upon those who formed the
government, and who desired that it should
not be exposed to consolidation. Statutes in
which such powers are given to Stat« officers
will also be found in 1 Story, IT, SB, 73, 180,
214, 224, 225, 226, 301, and in many other
places in the statute books. To show that Con-
gress have recognized the power of the Secre-
tary of tha Treasury to make regulations in re-
lation to claims on the United States, cited, I
Story's Laws U. S. sec 7. Many of the op-
erations of the treasury are conducted under
regulations established by the Secretary of tha
Treasury.
In legislating on the claims which the law
declared should be paid by the Secretary of
the Treasury, Congress adverted to the estab-
lished custom of the department by which tha
secretary was to satisfy liimself ttiat claimanta
ware entitled to the l>eneQt of this law.
Mr. jQstioe Story delivered the opinion oi
the court:
This is a criminal case certified from the Cir-
cuit Court of the District of Kentucky upon a
division of opinion of the judges of that court.
The defendant, John Baiicy, wos indicted
for false swearing under the third section of
the Act of Congress of the lat day of March,
1823 (ch. 166), which provides "that If any
person shall swear or affirm falsely touching
she shall, upon conviction thereof, i
for willful and corrupt perjury." The indict-
ment charges the false swearing to be in an af-
fidavit made by the defendant, before a justice
of the peace of the Commonwealth of Ken-
tucky, in support of a claim against the United
States, under the Act of Congress of the Sth
dsy of July, 1B32, eh. 173, to provide for liqui-
ds'ing and paying certain claims of the Stat*
of Virginia; and there arc various counts In tha
indictment, stating the charge in different man-
ners. It appears from the record that at the
trial "the attorney for the United Stat«s read
in evidence the pspera set out In the indictment,
purporting to be the affidavit of the prisotiar,
with the eertlflcatea of the said Josiah Reed
and WiUiam ■Sud<teth, and gava avi- [■*51
Thb Uktiid STAtta t. lUim,
itatm to tha jury eondiiGlDK to prove thttt the
prisoBvr did, at tbe time and place charged in
the indictment, take oath as charged, and sub-
•eribe the paper aet out in the indictment as his
affidavit, before the said Reed; and that the
aaid Reed was then and there a Juatie* of the
p«ftce of the Commonwealth of Kentucky, in
mad lor the said County of Bath, duly commis-
aioned, qualified and acting aa such; and alto
nve evidence conducing to prove that imme-
diately after the passage of the eaid Act of Con-
grwa of the 6th day of July, 1S32, entitled "An
Act for liquidating and paying certain claims
of the State of Virginia," the Secretary of the
Treasary did establish, as a regulation tor the
oovemment of the department and its officers
m their action upon the claims in said act men-
thmed, that affidavits made and subscribed be-
fore any justice of the peace, of any of the
States of the United SUtes, would be received
ftnd considered, to prove the persons making
claims under said act, or the deceased whom
they represented, were the persons entitled un-
der the provisions thereof, and that the said reg-
nlationa had been ever since acted under at the
department, and numerous claims heard, al-
lowed and paid on such aliidavits; and also
gave evidence conducing to prove that the pris-
oner, acting Bs the executor of his father, John
Bailey, had, before the time of making and
•ubscribing said aiUdavit, asserted the claim
therein mentioned, and employed Thomas
Triplett to prosecute the aame, and receive the
money thereon; that the said Triplett did aft-
erwards present the said affidavit and certifi-
cates in support of said claim at the said de-
partment, on which, togetiier with other afEda-
rita, the aanie wea allowed and the money
Kid, and a part thereof paid to the prisoner.
« above being alt the evidence conducing to
prove the authority or jurisdiction of said Jo-
siah Reed to administer said oath and lake said
aSJdavit, the counsel for the prisoner moved the
court to instruct the jury that the asid Jo-
■iah Reed had no authority or jurisdiction to
administer aaiJ oath or take said affidavit; and
that whatever other facts they might And on
tbe evidence, the prisoner could not have com-
mitted the crime of perjury denounced by tbe
thirteenth section of the Aet of Congress, more
effectually to provide fur the punishment of
certain crimes againat the United States and for
other purposes, "approved on the 3d of March,
ISS5," nor of false swearing denounced by the
S5S*] nhird section of the Act "in addition
to the Act" entitled "An Act for the prompt
settlement of public accounts, and for the pun-
islimi-nt of the crime of perjury," approved on
tbe 1st of llarch, 1623, and their verdict ought
t« be for the prisoner: which motion the attor-
■ey for the United States opposed.
On this question tiie judges were divided
and opposed in opinion, whereupon, on the mo-
tion of the attorney of the United States, the
■aid question and diaagreement were stated and
ordered to be certified to the Supreme Court.
It is admitted that there is no statute of the
United States which expressly authorizes any
justice of the peace of a State, or indeed any
sfGcer of the national government, judicial or
otherwise, to administer an oath in support of
any claim against the United States, under the
Aet of 1832, ch. 173. And the question !•
whether, under these drcumstanees, the oath
actually administerod in this case was an oath
upon which there would be a fslxe swearing,
within the true intent and meaning of ths Act
of 1823, ch. 1B6.
It is unnecessary to consider, in this case^
whether an oath taken before a mere private or
official person, not authorized to administer an
oath generally, or in special cases, or not spe-
cially authorized, recognized or allowed by the
regulations or practice of the Treasury Depart-
ment, aa competent to administer an oath, in
support of any claim against the United States,
would, though the claim should be admitted
or acted upon In the Treasury Department, un-
der such a supposed sanction, be within tha
provision of the Act of 1823, ch. 165. These
questions may well be reserved for considera-
tion until they shall arise directly in judgment.
In the present case, the oath was administered
by a State magistrate, having an admitted au-
thority under the State laws to administer oaths,
virtute officii, in many c&ses, if not in the pres-
ent case; and it is further found in the caae,
that there was evidence at the trial conducing
to prove (and for the purposes of the present
argument it must be taken as proved) that the
Secretary of the Treasury did establish a regu-
lation authorising affidavits made before any
justice of the peace of a State to be received and
considered in proof of claims under the Act of
IH32; so that the solution of the question now
before us depends upon this, whether the oeth,
so "administered under the sanction of ['354
the Treasury Department, is within the true in-
tent and meaning of the Act of 1823.
Admitting, for the sake of argument, that It
is true (on which, however, we express no
opinion) that a State magistrate is not compella-
ble to administer an oath, virtute officii, under a
law of the United States which expressly con-
fers power on him for that purpose, still, if he
should choose to administer an oath under such
a taw. there can be no doubt that it would be
a lawful oath by one having competent au-
thority, and as much so as if he had Iwan
specially appointed a commissioner under a law
of the United States for Ihat purpose. And we
think that such an oath administered under
such circumstances, would clearly be within
the provision of the Act of 1823. That act
does not create or punish the crime of perjury,
technically considered. But it creates a new
and suhstsntive offense of false swearing, and
punishes it in the same manner as perjury. The
oath, therefore, need not be administered in a
judicial proceeding, or in a case of which the
.State magistrate, under the State laws, had
judicial jurisdiction, so as to make the falae
swearing perjury. It would be sufficient that
it might be lawfully administered by the magis-
trate, and was not in violation of hia official
duty.
There being do express authority given by
any law of the United States to any State mag-
istrate to administer an oath in the present
case, the next inquiry naturally presented is,
whether the Secretary of the Treasury had an
implied power to require, authorize, allow or
admit any affidavit sworn before State magis-
trates, in proof or in support of any claim under
the Art of 1B32; for if he had, it would be
Teiy difScult to show that such an affidavit ia
lis
U4
SuFBun Otnntr or m Urird BrAm.
1»»
not within the true Intent and meaning of the
Act of 1B23. BB it certBinlj te within Uie verj
worda of the enactment. The policy of the
kct elenrl; e:itend8 to such b case; and the
piiblii: minchtef to be remedied is precisely the
same bs if the affidavit had been taken under
the express and direct authority of k atatuta of
the United States.
And we are of opinion that the Secretary of
the Treasury did, by implication, possess the
power to make such a regulation, and to allow
eiich afii davits in proof of claims, under the
Act of 1832. It WBB incident to his duty and au-
thority, in settling claims, under that act. The
2S5*] third section provides "that the 'Sec-
retary of the Treasury be, and be is hereby
directed and required to adjust and settle tboae
claims for half-pay of the ofHcera of the afore-
said regiment and corps which have not been
paid, etc.; which several sums of money herein
directed to be settled or paid, shall be paid out
of any money in the treasury not otherwise
sort, that where the end is required the appro-
priate means are given. It is the duty of the
secretary to adjust and settle these claims, and
in order to do so he must have authority to re-
Juire auitable vouchers and evidence of the
acts, which are to establish the claim. No
one can well doubt the propriety of requiring
the facts which are to support a claim and rest
on testimony, to be established under the sanc-
tion of an oath; and especially in cases of the
nature of those which are referred to in the
act, where the facts are so remote in point of
time, and must be so various in point of force
and bearing. It cannot be presumed that
(.'angress were insensible of these considera-
tions or intended to deprive the Secretary of
the Treasury of the fullest use of the best
means to accomplish the end, viE., to suppress
frauds, and to ascertain and allow just claims.
It is certain that the laws of the United States
have. In various cases of a eimilar nature, from
the earliest existence of the government down
to the present time, required the proof of claims
against the government to be by affidavit. In
•ome of these laws authority has been given to
judicial ofGcers of the United States to sdniia-
ister the oaths for this purpose; and at least as
early as 1SI8, a similar authority was confined
to State magistrates. The citations from the
laws, made at the ar^ment, are direct to this
point, and establish in the clearest manner a
habit of legislation to this effect.' It may be
added, that it has been stated b^ the Attorney-
General, and is of public notoriety, that there
has been a constant practice and usage in the
Treasury Department in claims against the
United States, and especially of a nature like
the present, to require evidence by affidavits in
support of the claim, whether the same baa
S5II*J been expressly 'required by statute or
not; and that, occasionally, general regulations
have been adopted in the Treasury Depart-
ment for this purpose.
Congrees must be presumed to have legislated
1.— Act of 2Btb of February, 1793, rb. ei [IT] ;
Act ot M Mnri-h. 1803. cb. BO; Act of lOtb at
April. 1800, ch. 25:
•V ot March, 183S, ch. 1<
under this known state of the taws and nsage
of the Treasury Department. The very cir-
cumstance that the Treasury Department had
for a long period, required solemn verilications
of claims against the United States, under oath,
as an apf)ropriate means to secure the govern-
ment against frauds, without objection; is de-
cisive to show that it was not deemed an
usurpation of authority.
The language of the Act of 1823 should,
then, be construed with reference to this usage.
The false swearing and false affirmation, re-
ferred to in the act, ought to be construed to
include all cases of swearing and affirmation
required by the practice of the department In
regard to the expenditure of publJL- mon>',v, or
in support of any claims against the United
States. The language of the act is sufficiently
broad to include all such esses, and we can
perceive no reason for excepting them from
the words, as they are within the policy of the
act, and tlie mischief to be remedied. Tlic
act does no more than change a common law
ofTense into a statute offense.
There is nothing new in this doctrine. It is
clear, by the common law, that the taking of
a false oath with a view to cheat the covern-
ment, or to defeat the admin igtrnt ion of public
justice, though not taken within the realm, or
wholly dependent upon usage and practice, is
punishable as a misdemeanor. The case of
OTWealy v. Newell, S East's Kep. 304, alTordn
an illustration of this doctrine. In tliat case il
was held that a person making, or knowingly
using a false adidavit of deb!, suom before n
foreign magistrate, in a foreign country, f^
the purpose of holding a party to bail in Eng-
land; althouf;h such affidavit was not author-
ized by any statute, hut was solely dependent
upon the practice and usage of the courts of
England, was punisliable as a misdemrnnor at
the common law, ss an attempt to pervert pub*
lie justice. Upon this occasion Lord Ellen-
borough, after alluding to the practice of re-
ceiving such affidavit made in Ireland and
Scotland, aa welt as in foreign countries, said
tbe practice in both cases must be equally
warranted or unwarranted. In none of thes<
cases 'can the party making a false affi- ["351
davit be indicted speciflcatly for the crime ol
perjury, in the courts of this country. But in
all of them, as far as he is punishable at all, be
is punishable for a misdemeanor in procuring
the court to make an order to hold to bail, by
means and upon the credit of a false and fraud-
ulent voucher of a fact produced and published
by him for that purpose. And the court held
the practice perfectly justifiable.
Upon the whole, we are of opinion that
where the oath is taken before a State or na-
tional magistrate, authorized to administer
oaths, in pursuance of any regulations pre-
scribed by the Treasury Department, or in oon-
formity with the practice and usage of the
Treasury Department, so that the affidavit
would be admissible evidenea at the depart-
ment in support of any claim against the
United' States, and ths party swears falsely,
the case is within tbe purview of the act of
1B23, ch. IflS. It will be accordingly certified
to the Circuit Court that the said Josiah I^ed,
nnmed in the certificate of division of tha
judge* of the Circuit Court, being a juatio)
PMch •
tns
Ttiv Vnnat SrAtn t. Buir,
*BT
of Um pc*M of tht ComnionweaUli of Ken-
tucky, •uthoriEPd by the laws of th>t State
to adminiBtcr onlhs, had authority and juris-
diction to adminiBter the oath, and take the
•Bidkvit In the said certificate of division
meotioned; and that if the facta stated therein
were falsely sworn to, the case ia within the
Aet of Consress of the Ist day of March, 1823,
r«f«rTed to in the same certiRcato.
Mr. Justice WLeta, dissenting.
The question involved in thii e&M !■ ImpoT-
tant, aa it regards the construction of ■ higiily
penal law of the Uninn; and of still greater
importance, as it respetts the powers of Stat«
officer* under an act of Congress which confers
on them no apeeiat authority.
In the third section of the Act of Congress
of the 1st of March, 1823, it ia provided that
*if any parson shall swear or affirm falsely,
touching the expenditure of public money, or in
support of any claim against the United States,
he or alie shall, upon conviction thereof, suffer
•• for willful and corrupt perjury." And in
tb« thirteenth section of the Act of the 3d of
March, 1625, it is declared that "if ny
pciBOn, in any case, matter, hearing or
SS8*] 'other proceeding, when an oath or af-
Innatioo shall be required to be taken or ad-
ninistered under or by any law or laws of the
United States, shall, upon taking such oath or
affirmation, knowingly and willingly swear or
affirm falsely, every person so offending shall
be deemed guilty of perjury, etc."
These are the acts under which the offense
of false swearing is charged against the de-
fendant. The oath was administered by Josiah
Reed, a justice of the peace for Bath County,
)n the State of Kentucky, with the view of
ohtaining money from the government. It
don not apppar that in this law or aoy other
the claim asserted was required to be substan-
tiated by oath; but it was proved that such
requirement was made by the Secretary of the
Treasury, whose duty it was to decide on the
merits of the claim. Nor docs it appear that
any authority has been given by any act of
Congreas to a justice of the peace to admin-
ister an oath in such a case; and the question
aii«e« whether, admitting the affidavit of
Bailey to be false. Justice Reed had power to
administer such an oath. If it shall be
foimd that no such power existed, the false
■wearing, though highly immoral, is not an
rfense under either of the acts of Congress
which have been cited.
The etatutes of 1823 and 182B above cited,
have extended the crime of perjury or the
ptini'hment annexed to it, to a false swearing;
which neither by the common law nor the
previous sfts of Congress constituted perjury.
Beyond this these acts do not go. They do not
ilapenae with any of the essential requisites,
b^ond what is expressed, to constitute the
cnme of perjury.
The definition of perjury at common law, as
given by Hawkins, is, "a willful, false oath, etc.,
in sny procedure, in a course of justire." This
offense may be committed in depositions, af-
Cdavits, etc., taken out of a court of justice.
By the Art of Omgress of 1790, it is provided
that, "if any person shall willfully and cor-
TVptly commit perjury on his sr her 0«th or
affirmation, in any suit, controversy, matter or
cause depending in any of the courts of the
United States, or in any depOEition taken pur-
suant to the laws of the United States, every
person so offending shall suffer," etc. In 4
Black. Com. 13B, it is stated, "the law takes
no notice of any perjury but such as is com-
mitted in some court of justice having power
■to administer an oath, or before some [*3S9
magistrate or proper officer invested with a
similar authority." And Lord Coke, in 8
Inst. 16G, says that "no old oath can be al-
tered or new oath raised, without an act of
Parliament; or any oath administered by any
that hath not allowance by the common law,
or by act of Parliairient."
No one can doubt that an oath administered
by • person without authority is a void act.
It imposes no legal obligation on the person
sweating to state the truth; nor is he punish-
able under any law for swearing falsely in
The prosecution in this case is attempted to
be sustained on two grounds:
1. From the general language of tho law
defining tbe offense of false swearing.
2. From tbe usage of the Treasury Depart-
And first, as to the language of the act
under which this prosecution was commenced.
The act is general in its Inn^sge against "any
person who shall swear falsely;" but it gives
no authority, either general or special, to ad-
minister an oath. This power must be sought
in other acts of Congress, or in a judicial
office to which the power is incident.
The federal government Is one of limited
and speciQc powers. In the discharge of its
functions, except in certain specified cases, ita
acts are as distinct from those of a State gov-
ernment as if they were foreign to each other.
The officers of the one government, as such,
can do no olficial acts under the other; the
sources of their authority are different, aa well
as their duties and responsibilities.
When a law for the punishment of offenses
is passed by either the federal or a State gov-
ernment, it can only operate within the proper
jurisdiction. The officers of the federal gov-
eniment can taken no cognizance of the penal
laws of a State; nor can the judiciary of a
State, in aiy opinion, carry into effect the
criminal laws of the Union. If this could be
done, it would consolidate the jurisdictions of
the respective governments, and introduce into
our judicial proceedings the utmost confusion.
It is not in the power of Congress to transfer
any part of the jurisdiction which the Consti-
tution has vested in the federal government.
If this can he done by Congress to any extent,
it may be done without limitation; and in this
way the powers *of the federal govern- [*a80
ment might be lessened or utterly destroyed.
A federal judicial officer, either by act of
Congress, or as an incident to his office, has
the power to administer oaths. This power,
however, can only be exercised within the
jurisdiction of the federal government, and in
caRes where an oath is required or sanctioned
by the laws of that government. And so of
the judicial officers of a State. If either ofbcet
act beyond the sphere of his appropriate juris-
diction, his aet is a nullJtj.
Ifl
SUPSBMB COUBT Ok ruK Uhitbd Btatm.
In thU vfew of the cMe, there isnodilT«r«nce'
in prin^^ipa.! between adminiatering an outh and
BDf otiicr Bct which beloaga to the judicial
character of the officer.
tiy ail act of Congreaa, deposition* map be
taken before certain State ollicera in any cause
pending in the courts of the Uaited States.
Among these odicera a justice of the peace
la not named, uoleaa he be a judge of a county
court; and it hae been often decided that a
deposition taken before ft justice of the peace,
who is not a member of a county court, or
before any other State officer than those named
in the act, cannot be read in evidence.
Under tlie State jurisdiction, the juatice
may have power to administer oatha, but he
la not recogniied aa having a right to exerciae
thia power under the act of Confess. And
would anyone contend that a deposition taken
before a juatice, under aueh circumstances,
could lay the foundation of a prosecution for
perjury t
The Stat« officers named in the act as having
the power to take depoaitions, do not act, in
taking them, under their general power to ad-
minister oaths aa State officers, but under the
special authority of the act of Congreaa, Any
other persona designated by their official
characters, might as well have been named in
the act of Congress, though they had no power
under any law of the State to administer
oaths. The officers named in the act are re-
ferred to as descriptive of persona who may
exerciae the authority given, and for no other
purpose.
In the argument of this case for the prosecu-
tion, a great number of acts of Congresa were
read, granting pensions and for other purposes,
in which State officers were especially authorized
to administer oaths. This I take to be a con-
S61*] elusive exposition *by Congress against
I he powers of State officers to administer oatha
for federal purposes. Would a special author-
ity liave been vested in them for this purpose
if, in the opinion of Congreaa, they posscased a
general authority under the State lawsT But
one answer can be made to thia inquinr. Con-
gress knew well that Stats officers could exer-
ciae under their general authority no such
power, and it was expressly conferred on them
by an act of federal legislation.
If this power to administer an oath by a ju-
dicial ofBcer of a State, in matters of a civil
nature which relate to the federal jurisdiction,
cannot be recognized as legal, much less should
H be sanctioned as laying the foundation of a
prosecution for perjury. The false swearing
with which the defendant stands charged,
though not technical perjury, is punished as
*uch.
Under a general law of a State which deflnes
the offense and provides for the punishment of
perjury, would a false oath taken before a fed-
eral judicial officer be punishable f Would it
not be eaaential, in auch a caae, to ahow that the
peraon administering the oath acted under the
authority of the State! Could the State tribu-
nals recognize any other authority than that
which belongs to their own juriadictlon T If no
Btate law authorizea on oath to be adminiatered
by a federal officer, can he administer it for
States purposes ! Could the acknowledgment
of a deed or other instrufflent b« inmde boon *
IIS
f deral judge, under » general statute of ■ Stat*
requiring auch instrument to be ocknowledgwl
before a judge of the court T All theae quaa-
tiona must be answered in the negative.
To aay that the ftderal officer has a ri^t to
a Iminiater oath* by an act of Congress, or as an
incident of his office, does not remove the ob*
jection. Can a judge of the federal court ox-
ercise his functions in a State tribunal! Sneh
a pretension would be too absurd to merit
serious consideration. And yet, is there any
difference in principle between a federal Judicial
officer discharging bis function in a State tribu-
nal, and administering an outh for State pur-
poses T Does lie not, in Loth cases, exercise the
functions of his office under the jurisdiction of
the State t
It is admitted that the L^elatura of a Stata,
as well as Congress, may authorize any persona
by name, or by their official designations, to
administer oaths in all eases required, under
•the laws of their respective govern- ["SSJ
ments; but I am examining the case of tha de-
fendant where no statutory power to adminis-
ter the oath is pretended to have been givui bf
Any official act of a federal officer, undar the
jurisdiction of a State, which has not author*
iud such act by him, is extrajudicial, and in
no point of view legal. Nor can on oath m1-
ministered under such circumstances, howera
false, be punishable under a general statute of
the State against false swearing. The act of
administering the oath, being done without »u-
thority, is void. It subjects the false swearer
to no greater penalty than if it had been ad-
ministered by a private citizen, without onj
pretense of power.
The law, it may be said, denounces the pun-
ishment for false swearing generally. And can
there be a false swearing, witliin tne meaning
of the act, before a person who has no authori-
ty to administer an oatht
From these considerations it would seem that
no punishment could be inflicted by a Stat*
tribunal, under an act against false swearing,
where the oath had been administered by a fed-
eral officer, whose act was not sanctioned by
any law of the State.
And if thia be the caae under the jurisdictioa
of a State, ia it not equally clear that the same
principle applies to the federal jurisdiction!
If a State tribunal cannot punish for falaa
swearing, where the oath is administered fay a
federal officer without any sanction by the laws
of the State, can a federal tribunal punish for
false swearing, where the oath is administered
by a State officer without any sanction by tb*
laws of the Union!
The act of Congress against false swearing ia
general, and no reference is made to the author-
ity under which the oath shall be adminiatered i
but doea it not follow as a consequence that the
oath must be administered under the same ju-
risdiction which enacted the law! Did Con-
gress intend to punish an offense committed
before a State tribunal! They had the power
to punish false swearing before any Individu^
whom they might have authorized to adminis-
ter the oath, but in this law they have not ao
provided, nor in any other law which relates to
the caae under consideration. It therefore fol-
low*, in Uu* naw, tliat Jnatloe Band, in admin-
Tax UmrsD Statu t. Baiut.
SSS*] latering tlM oftth to th« ■derendant,
■et«d without autharitj, and the Bffiant can-
nnt btt mbjcct«d to the penkltv for false swcar-
generkl, on the aaina ground may not k State
tribunal inflict the penaltiea of thli lawT
But it ia insisted that under the rule of the
Treasury Deputment nhich retjuired the oath
to anhetantiate the claim, the justice was au-
tboriied to administer the oath.
Oui this position be suatainedT
It has been ihown that Justice Reed, In ad-
■ninistering the oath, did not set under the
autfafwit; of the State, or of any law of Con-
gress; and the question is fairlj presented,
whether the Secretary of the Treasury haa the
power to invest any individual with a compe-
tent authority to administer oaths, in matters
which relata to the Treasury Department.
That the Secretary o( the Treasury, who, in
the discbarge of his duties, is required to inves-
tigate and decide i.-inually, numerous ami
Tarioua claims on the treasury, may require
certain claims to be aubstantiated by oatn, is
not controverted.
But this admission goes no length in sustain-
ing the prosecution; for it does not follow, if
the secretary require anoathiaproof of aclaim,
that he can invest any individual with the pow-
•r to administer such oath.
In the first place, there is no necessity for the
exercise of the power by the secretary, because
there are officers of the United States who are
duly authoriied to administer oaths. But there
is no power in any executive officer to clothe
any individual with the important authority of
administering oaths. It is a power which be-
longs to the legislative department, and can
nowhere else be exercised.
In certain canes courts may issue commissions
to take depositions, and these give authority to
administer oaths in the cases stated; but this is
done under the express sanction of law. Can
the secretary himself administer an oath which
•ball lay tne foundation of a prosecution for
perjury T But it is said that it has been the
usage of the department to act on oaths admin-
iaterad by State officers. Tbat such has been
tbc nsage I can entertain no doubt; but there
ia no proof before this court, nor was there any
before the Circuit Court, that such usage exists
St4*] *in cases where Congress bave given no
authority to admintstar the oath.
But suppose the usage did extend to catfes
where no authority had been given by Congress
to a State officer to administer an oath, could
Dsage constitute tbs law in such a caset The
usage of the department may not only fix the
mle of decision, but, in many easel, the ground
and axtent of a claim against the government.
But thia nsage cannot extend beyond the action
of the department.
The Secretary of the Treasury requires oaths
to be administered by State omcera in proof of .
certain claims, to guard the public intereat; but
doea tbat legalize such a procedure r It may
prove aalutary for the purpose intended; but'
coes it follow that the oalhs adrainintered by
anyone, if false, are within the act of Congress
ajFainat false swearingi This act is a hifrhly
penal ona. A conrktlim nnder it dastroys the
• h. ed.
character of the Individual, and deprives him
of his liberty. Like all other criminal acts, it
should receive a strict construction, and no
person should be subjected to its penalties who
has not clearly viulsted its letter and spirit.
In one sense it may be said tiiat the defend-
ant Bailey is witliin the lew, because the law
punishes false swearing, and he baa sworn
falsely before a justice of the peace. But the
question recurs, had this justice the power to
administer the oath! If ho had not, Bailey has
not incurred the penalties of the law.
A decision from B East, 364, has been read,
as applicable to the case now under consiidera-
tion.. That was a case in which the Court of
King's Bench decided that an affidavit taken in
a foreign country was suf&cienl., nnder the
practice of the court, to hold a defendant to
bail. But Lord Ellenborough says tliat "in
none of these cases can the party making a
false affidavit be indicted, specifically, for the
crime of perjury in the courts of this country;
but in all of them, ss far as the party is pun-
ishable at all, he is punishable for a misde-
meanor, in procuring the court to make an
order to hold to bail, by means, and upon the
credit of a false and fraudulent voui'her of a
fact, produced and published by him for that
purpose."
It appears, from this opinion, that the false
swearing in a foreign atiidavit could not lay
the foundation of a criminal 'proBecu- ['afli
tion; but the use which was made of such
affidavit, and the effect produced by it — these
constitute the gist of the piosecution.
A false affidavit, to hold to k>ail, if made in
England, and before a person competent to
administer an oath, would be perjury. But
Lord Ellenborough says, in substance, if the
oath be administered in a foreign country, or
in Ireland or Scotland, though false, does not
subject the affiant to a prosecution for pcijury,
nor for any criminal prosecution founded ex-
clusively upon the false swearing.
If, by the practice of the court, a mere state-
ment by the p'aintiff were suiUcient to hold to
bail, and such statement were made falsely, it
would subject the plaintiff to punishment by
the common law; for, in the language of the
judge, "procuring the court to make an order
to hold to bail, by means and upon the credit
of a false and fraudulent voucher of a fact
produced and published by him for tbat pur-
This opinion, it appears to me, does not
conflict with the view I have taken of thia ease-
But it is insisted that the law against false
swearing was passed witii a knowledge by
Confess of the usage of the department to
require oaths before :Slatc ofRcera. and that it
muRt be presumed they intended to sanction
such usage. Is such a presumption admissible
in a criminal case! The efl'ect of the law must
be limited, in its penalties, to the jurisdiction
under which it was enacted; and it should not
be construed to embrace cases which do not
come legitimately within its purview.
A court, in giving a construction to a highly
penal law. will look at its letter and spirit, and
r-annot extend its provisions by construction,
from motives of policy whirh may be supposed
to have iiiMneni-ed the Lcgiiilature.
In State and Federal oflicers, as such, may
12S
SUPBtMB COUBT or TUX UNITED BTATO.
•xerdae their functfun* within the jurisdiction
of eitlier government, to Aay evtent. I see DC
principle by wliich their powers shall be lim-
ited. Such ft course would blend tbe jiirisdic-
Uoas of the Federal and State governments,
«nd be likely to lead to the most serious col-
I coDsider this question as one of great im-
portance, and diSering, as I do, from the opin-
lOD of tlie court, I have felt Iraund to give the
ses*] This cause came on to be heard
the transcript of the record from the Circuit
Oourt of the United States for the District of
Kentuctcj, and on the point on which
judges of the said Circuit Court were opposed
n opinion, and which was certified to
tourt for its opinion, agreeably to the at
Congress in sucli case made and provided, and
was argued by couosel ; on cona iteration
whereof, it ia ordered and adjudged by thii
court that it be certified to the said Circuit
Court as the opinion of this court that the said
Josiah Reed, named in the certificate of divi-
sion, being a justice of the peace of the Com-
monwealth of Kentucky, authorized by tht
Ikws of that State to administer oaths, had
authority and jurisdiction to administer the
oath and take the afiidavit in the said certificate
of division mentioned, and that if the facts
stated therein were falsely sworo to, the
il within the Act of Congress of the 1st day
of March, 1823, referred to in the same ce ""
l«l-l THE UNITED STATES
JOHN BAILEY.
Jurisdiction— construction of Judicial act.
Kentncky. Indictment upon the Act of ConKreas
(4 Harfli Sd. ]8^3. (or the panlahmcnt of frauds
commuted against the goverumeot of the Called
States.
After Itifi whole case had been laid before the
*"rcult Court bj the United ~
the p
oved (
0 IHB
fJ?P
that the evlaeoce did _,. - ,.. - ._-
otTenae charged under the acta of CongrcsB : wblch
WIS opposed by the ITnlted States, and on this ques-
tion the Judges were divided nnd their opinloDa
opposed. The queatlan and dlBSgreement were etst-
ind ordered to he certlfled to the Supreme
r the
, ..._ B from the
CIrcalt Court to the Supreme Court, when the
Judgns of the Circuit Court are opposed In opinion,
ahowi conelualrely that Concrena lotended to pro-
vide for a division — — '-■— — -■--■- — .-.-
which frequently occi
to enable a circuit couii.
Into the Sunreme Court _
A cODBtnicllon which would authorise Bucti
ter would counteract the policy which forl>lds writs
Of error or appeals until the Judgment or decree
The rerllflcBle of the Judiea leavea no dnubt thnt
the whole cause was submitted to the Circuit Court
by the motion of the countiel it the prieoaer. II
baa tieeD repeatedly decided that the whole cause
cannot b« adjourned on a dlvlalou of the Judges;
led this Is a case ol that deacilptlon.
ON a certificate of division of c^fMnlon of the
judi^s of the Circuit Court of the United
States of the District of Kentucky.
The dt-fendant was indicted under the Act
of March 3d, 1B23, entitled "An Act for the
punishment of frauds committed on the govern.
ment of the United States."
The act provides, "that if any person or
persons shall falsely make, alter, forge or
counterfeit, or cause or procure to be falsely
made, altered, forged or counterfeited, or
willingly aid or assist in the false making,
altering, forging or counterfeiting any deed,
power of attorney, order, certificate, receipt
or other writing, for the purpose of obtaining
or receiving, or of enabling any other person
or persons, either directly or indirectly, to
obtain or receive from the United States, or of
any of their officers or agents, any sum or
■unu of tooney; or shall alter or publish as
true, or cause to be altered or published as
true, any such false, forged, altered or counter-
feited deed, power of attorney, order, certifl'
cate, receipt or other writing as aforesaid, with
'intent to defraud the United States, ['268
knowing the same to be false, altered, forged
or counterfeited; or shall transmit to or present
at, or cause or procure to be presented at any
ofTice or ofliceB of the govern meat of the
United States, any deed, power of attorney,
order or certificate, receipt or other writing, m
support of, or in relation to any account or
claim, with intent to defraud the United States,
knowing the same to be false, altered, forged
or counterfeited, every auch person shall be
decreed and adjudged guilty of felony."
On the 6th of July, 1B32, an Act was passed,
entitled "An Act to provide for liquidating
and paying certain claims of the State of Vtr-
ginla."
The third section of the act directs and
requires the Secretary of the Treasury to ad-
just and settle the claims, the payment of
which the United States thus assumes; and
among them certain claims t« half -pay of the
officers of the Virginia line, and to pay the
ime out of the treasury.
The defendant and his brothers presented a
claim under this act, asserting themselves to
lie the representatives of John Bailey, deceased,
captain of the regiment commanded hy
Colonel Clark; and received hy their attorney.
under powers delegated to him, a large sum of
money from the United States, as and for the
half-pay of John Bailey.
The paper presented at the treasury in sup-
port of the claim was in the fc»llowing wora>
and figures:
"Commonwealth of Kentucky, County el
ath, to wit:
'The affidavit of John Bailey, one of the
executors of Captain John Bailey, deceased,
states that he is not interested in said estata;
that Warren Bailey, Jun., and James C Bailey,
who have joined with him in a power of attorney to
the Honorable Kichard U. Johnson, to draw any
moneys that may be due them from the govern-
ment of the United States, are the residiuhrj
legatees, and aolely interestedi that he is
years of age, and the son of said John Bailey,
deceased, who, from his earliest recolleetion,
reputed a captain in the Revolutionary
Army and in the Ulinoia ragimutj that he haa
Poiera 9.
Tm Ukr^ Btaib
«MH U* bther'i commiuian, and thinki there
««ra two; ot that fact he vill not b« eertain,
3Ut it U hii strongest impresaicin, and is per-
r«rtl7 confident that the commisaiona, if two,
9«S*] both were 'lignpd by Thomai JelTerton;
tbat hii father's papers fell into his hands as
ciecutor, and he lias mad« manv fruitless
Mmrchea for thetn, and can in no wise account
for their loss unless they were given to General
Thopiaa Fletcher, deceased, while a member ot
CcmgrcBB, to see if he eould get anything, aa af-
Sant knows that hia father applied to Mid
Fletcher to do something for him, and under-
C.ood afterwards the law had made no provision
for cases situated like said John Bailey.
"As witnesa my hand and seal this day
of November, 1832.
"John Bailey, [Seal],
"State of Kentucky, Bath County, to wit;
"The foregoing affidavit was signed and
aworn to before me by John Bailey, Jun., and
1 further certify that aaid John Bailey, Jun., i*
a man of truth and respectability, and to be
Btrii'tly lelied on when on oath.
"Civen under my hand and seal aa a justice
of the peace for Bath County and Common-
wealth aforesaid, this ZGth day ot November,
1832. J. Reed, J. P. B. C, [Seal].
"State of Kentucky, Bath County, to wit:
■% William M. Suddeth, clerk of the Bath
County Court, do certify that the aforesaid
Jofiiah Kcpd, whose name is subscribed to the
foregoing rertiricate, is a justice of the ppace In
and for the County aforesaid, duly commis-
sioned and sworn, and the handtrriting is genu-
ine and well known to the aforesaid William
M. Suddeth; as witness my hand and seat of
office this 2Sth November, 1S32.
"W. M. Suddeth, tSealJ."
Tbe indictment which set forth this writing
contained fo'ir counts, charging respectively
the false making of the said writing, purport-
ing to be an alfidavit, and feloniously causing
the juT*t of the justice of the peace to be an-
aeia] to it; the uttering as true the whole
fiper; the causing it to be transmitted to the
nttanrj Department; and causing it to be pre-
sented at the department in support of the
Id tbe record the following case was stated.
SIO*] and the division *of the judges of the
court on the same in the Circuit Court:
The attorney of the United States read in
evidence to tbe jury the paper set out in the tO'
dictnient, purporting to be the affidavit of the
friBoner and the certificates of Josiah Beed and
Cilliam Suddeth thereto attached, and proved
t'lat the signature of John Bailey to the writing
purporting to be hit affidavit was in the band-
writing of him. the prisoner; that the signa-
ture to the certificate of Joaiah Reed was in his
handwriting, and that he was a justice ol the
ppace of Kentucky, for the County of Bath, at
the date thereof; that the certificate of William
Suddeth waa made and signed by him, and that
he was clerk of tbe County Court of Bath, aa
he eertiftes. and then gave satisfactory evidence
that John Bailey, the father and testator of the
prisoner, was not tbe John Bailey who was a
captain in the Illinois regiment, aa represented,
and gave evidence conducing to prove that the
Srisoser bftd aigned the paper purporting to be
Ii. ed.
hi* aflldavit, and aided In i
ing been sworn by the said FLeedt
Keed, and caused the said paper to b
ted and presented at the Treasury Department
of the United States, and there used in support
of the claim fraudulently made by the prisoner
as executor of his father, for tbe half-pay due
to John Bailey aa a captain in the Illinois regi-
ment under the Act of Congress of the fith of
July, 1S32; that on this paper presented and
received at the treasury, aa the alfidavit of the
prisoner and other documents, tbe claim was al-
lowed, and the money paid to the attorney ol
the prisoner, and a part thereof paid over t«
him. This being all the evidence given on the
part of the prosecution, the counsel for tbe
prisoner moved tbe court to instruct the jurv
that the evidence did not conduce to eatablish
the offense denounced by the first section of the
Act of Congress of the 3d of March, 1S23, en-
titled "An Act for the punishment of frauds
committed on the government of the United
States," nor any otber act of Congress under
which tlie indictment was framed, which motion
the attorney of the United States opposed, and
on this question the judges were oivided and
their opinions opposed. Whereupon, on motion
of 'the attorney of the United SUtea, [■Sit
the said question and agreement are stated and
ordered to be certified to the Supreme Court.
No counsel appeared for the defendant.
For the United States it was contended:
1. That the writing set forth in the indict-
ment is within the Act of Congress of 1823 for
the punishment of frauds. 3 Inst. 160, 171; 2
Jj^sOs Crown Law, OZO; The King v. Lyon, 1
Rubs. & Ry. £56; Dyer, 302.
2. That the evidence shows a fraud com-
mitted on the government by the prisoner.
3. That the Act of 1823 is not against forger-
s only, but is an act for the punishment ot
frauds. It should be construed so as to efTectu-
ate the Intention of the Legislature, as ex-
pressed, not only in the title of the act, but by
its words, taken in their ordinary sense; and
cases should not he excluded whii'h, thus con-
strued, the act embraces. The United States
V. Wiltberger, S Wheat. 96; 4 Cond. Rep. 603;
' Block. Com. 6B, 60, 80.
4. That the first count in the indictment la
sustained, the writing having been "falsely
made," in the sense in which these words in the
act should be taken. 3 Inst. 160; Taverner's
case. Dyer, 322; 3 Leon. 108; Moore, 655; 1
Kawk. ch. 70; 2 East, 920; 13 Viner, 464;
The King v. Maddox, Z Buss, on Crimes, 468.
5. That the subaefjuent counts, founded upon
the use of the paper, were sustained by the
proof; and that the writing which the prisoner
fraudulently uttered, and caused to be trans-
mitted and presented at the treasury, was such
a false writing and certificate as is meant by
the act of Congress. Ellsworth's case, 2 East'a
Crown Law, 986, BSB; 2 Buss, on Crimes, 1613.
S. That the construction of the act contended
for will create no new offense, the acts shown
against the prisoner amounting to an offense at
commm law, which would be punishable in
1S5
STl
SuivEm OooBT or the Unttsd Statu.
law
tha <3rcuit Court if it had a
criminal juriBdiction. 2 Riias. on Crimea, 1361
;3a8, 1373; 4 EaBt'a Rep. 171; 2 Chilty't
a^a-] 'Black. 158, note; 1 Hawk. 323; Strange
1144; 7 Mod. 379.
7. That if the Act of 1823 be regarded an an
act against forging and counterfeiting only,
atill an olTenee is Bhonn againat the prlaoner.
let. A writing may be falsely made, i. e.
forged in the partv'a own name; 1 Hawk. ch.
70; Lewis's case, Foater, 117; Case of Parks and
Brown, 2 East, 963; 8 Cowen, 72.
2d. The writing, though in the prii
najue, waa made as in a character which he did
not bear, and without the aasumption of which
the fraud could not have been perpetrated.
Cases supra; 1 Leach, 110.
3d. The writing purports to be, and waa uaed
as, an affidavit or writing sworn to, not being
•O in fact. The eredit which was given to it
was that which waa due to a sworn paper onlyi
a paper not sworn to, being, in the particular
case, unavailing as an instrument of fraud.
There was, therefore, given to the writing the
false appearance of that without which it could
not have imposed upon the Secretary of the
Treasury. Wherefore it is a counterfeit. The
United States v. Turner, 7 Peters, 132.
Mr. Chief Justice Uaishall delivered the
opinion of the court:
This is a case certified to this court from the
Circuit Court of the United States for the
Seventh Circuit and Diatrict of Kentucky,
which the judges of that court were divided
opinion.
An indictment had been found against John
Bailey upon the Act of March 3d, 1823, for the
euniahment of frauds comniitted against the
nited States,
After the attorney for the prosecution had
laid bia whole case before the court and jury,
the counael for the prisoner moved the court
to inatruct the jury that the evidence did not
conduce to establish the olTense denounced by
the first aection of the Act of Congresa of the
8d of March, 1823, entitled "An Act for the pun-
iahment of frauds committed on the govern-
ment of the United States," nor any other act
of CongreBS under which the indictment was
framed j which motion the attorney for the
United States opposed, and on this question the
judges were divided and their opinions op-
273*] posed. Whereupon, 'on motion of the
attorney for the United States, the said ques.
tion and disagreement were stated and ordered
to be certified to the Supreme Court.
The 6th section of the "Act to amend the
judicial aystem of the United States," enacts
"that whenever any question shall occur be-
fore a Circuit Court, upon which the opinions
of the judges shall be opposed, the point upon
which the disagreement shall happen, shall,
during the same term, upon the request of
either party or their counsel, be stated under
the direction of the judges and certified under
the aeal of the court to the Supreme Court at
their next session, to be held therenftpr; and
shall by the said court be finally decided." The
act also contains a provieion that "nothing
herein contained shall prevent the came from
11*
proceeding, If, In the opinion of the court, far-
ther proceedings can be had without prejudic*
to the merits." Story, 856.
The language of the section shows, we think,
conclusively, that Congress intended to provide
for a division of opinion on single points, whicb
frequently occur in the trial of a cause; not to
enable a circuit court to transfer an entire cause
into this court before a final judgment. A con-
struction which would authorize such transfer
would counteract the policy which forbids writs
of error or appeal until the judgment or decree
be final. If an interlocutory judgment or de-
cree could be brought into tliia court, the same
case might again be brought up after a final de-
cision; and alt the delays and expense incident
to a repeated revision of the same cause be in-
curred. So if the whole cause, instead of an
insulated point, could be adjourned, the judg-
ment or decree which would be finally given
by the Circuit Court might be brought up by
writ of error or appeal, and the whole subject
be re-examined. Congress did not intend to
expose suitors to this inconvenience; and the
language of the provision does not, we think,
admit of this construction. A division on a
point is the progress of a cause, on which the
judges may be divided in opinion— not the
whole cause — is to be certified to this court.
The certificate of the judges leaves no doubt
that the whole eause waa submitted to the Cir-
cuit Court by the motion of the counsel for the
prisoner. The whole testimony in support of
the prosecution had been submitted to the
court, and 'upon this whole testimony ['274
the counael for the prisoner moved the court to
instruct the jury that the evidence did not con-
duce to establish the oUcnse denounced by any
Act of Congress under which the indietment
braced the whole cause. Had it been given,
the prisoner must have been acquitted. Had
the court declared that the testimony did sup-
port the indictment, the whole law of the case
would have been decided against the prisoner;
and the jury must have convicted him, or have
disregarded the instruction of the court.
It has been repeatedly decided that the whole
cause cannot be adjourned on a division of the
judges; and as this is, we think, a case of that
description, we cannot decide it in its present
The cose is remanded to the Circuit Court,
this court not having jurisdiction over the ques-
tion as stated.
This
I to heard on the tran-
the United States for the District of Kentucky,
and was argued by counsel; on conaidcrntloD
whereof, it is the opinion of this court that the
whole case has been certified to this court; and
as it has been repeatedly decided by this court
that the whole case cannot be adjourned on a
division of the judges, the court cannot decide
this case in its present form. Whereupon, it
is ordered and adjudged by this court that this
case be, and the same is hereby remanded to
the said Circuit Court for farther proceedings
to be had therein, according to law and justice,
this court not having jurisdiction over the que*.
tioD aa atated.
BoTcCa £xKcmow *
tri
FELIX QRUNDT.
Otatm •gmitist p^rty individually for assets
coming to bis hands «• adminjsiralar er-
roneous— question of damages on BQimutDce
•olel; for this court.
On tbe bearlDK or tbe cnae of Bofce'i Executon
w. Gnindj, at January Term, 1830, on an apppal
from the decree otlhe Circuit Court or Wist Ivn-
Court was afflrmed ; b; which, after di^cceelQE a re-
dalon of a contract miidt botwren Kelli UtundT
and Jamet Boyce. the Inlratale. [or Ibp purchase by
the (otmrr from Itie lattvr of a tract of land l^lne
In the »Iare of MlxxUalppl ; the eourt also dt'croeS
that Robert Boyce, tbe admlalilistor of Jamea
Bojce, of the goodi, etc.. of Jamea Boyce. deceastid,
do uay the Hum of llf.UUS.Zl. to be levied ou the
■oodi of the iBld Jamea lioyi'e. In bis bnmja, to be
adinlnlttered 1 and eiecullon laaued therefor aa at
law. Id thli decree notfalns wag uld bh to anj iJ.
lowance or daiuaj^- — '-■ • ■ ■■-•-
1 Id the
.1 foroi to the Circuit Couit t
landati
_ Circuit CoUf-' In IR^n »Hfr cnnc
ferred to the clerk, ._
of the aiseU of Janips Boyce In the bunds of tbe
■doilnlsinitoT ; who reported (hat no aaaela ap-
peared in tbe hand* of the admlnlgtrator, but that
Ilui-Tt Bdjcc bad. under an agreement Bllh the
appellee received for rents of tile land In Missis-
sippi, before the lat of January, 1824, t^,100,
which, with inleiMl thereon. (1.1:20, (o tbe 1st ol
September. 1S30, would amount to t^.TdO ^ and,
that tbe land In Mlxalsalppl was devlned by James
Boyce. the Intestate, to his sod Boliert Boyce.
Tbe report was coaSrmed. except aa tbe tl>1^0
Interest. The Circuit Court Ai'iri'i'fi ihni tho
tireat Irom the decree; to be 1 — „.
ffoods and chattela; and for the balance
plaintiff, t4fi3.4G. with Interest, !n case I
was not paid br bim, tbe plalntlT bad, __. ...
whole amount of the decree, a tlen on tbe lands li
I, with li
: by tba
. should
erk ot the
Held, that If the BO m of (2^00, tbe rests of the
lands In Hlaslaslppl, came Into tbe hands of Itol>ert
Boyee. as assets of the estate of Janica Ilnvn', no
decree could be bad agnlnat him [n bis intilvldun!
capacity In this case. The rents, under the agrce-
■nent upon the rescission of tbe conira^t tni the
sale ot tbe land, became virtually the money of
s Boyce. tbe loir'i
biTC beep renderEd against tbe drfeu
Circuit Coi
nally. Alio, neld, tbnt no Ilea iipun the land In
Hlsalsslppl exists, under tbe decree oC tbe Circuit
" ' -* ■"jnocasce, and that court bad no JurUdic-
sale to he made of lands IjIqb In
Also, beld, that the decree la er-
ing interest on tbe orlElnal aum
:ircult rourt. tIi.. Ci.oGj.ai. In
|40(t.4Qi. to
JIlBalsslppI eilsi
Court of Tenoca
- decree a
r State.
rbe afflrmaoc
luprei
It la solely for the declalou of the Supreme
wh'lber any damagea or Inlfrest (aa a part
olj ■'" "> be allowed or not In caaea o( sDIr
At January Term, 1830. this case was before
the court on an appeal by the same appellants,
and a decree was rendered in favor of the ap'
pelte«. 3 Pel«rB, 210.
The apprllee in that tsaae had filed in the Cir-
rait Court a bill for the resc^isaion of a contract
entered into bj him with the appelluiit's teeta-
tor, JaniTB Bojee, for the purcliase of a quan-
titj of land in the State of Mississippi; and up-
on whkh contract tb* (wa fint inatftllawntt,
t Ii. cd.
payable hr the aame, being dne and unpaid, •
auit had been instituted, and a judgment for
the amount obtained. The bill also prayed an
injunction against the judgment.
The Circuit Court decreed thst the contract
should be rescinded, and cirdered a perpetual
injunction of proceeditiga on the judgment: and
the following mandate was issued from tbia
court OD the affirmance of the decree of the Qr-
cuit Court:
"The President of tbe United Statea of
America, to the honorable the judges of the
Circuit Court of the United States for the Dis-
trict of West Tennessee, greeting:
"Whereas, lately, in the Circuit Court of the
United States tor the District of West Tennes-
aee, before you, or some of you, in a cause
wherein Felix Grundy was complainant, and
Robert Boyce and Ridiard Boyce, eiecutora of
Jamea Boyce, deceaaed, were defendonta In
chancery, the decree of the said Circuit Conrt
was in the following words, viz.: 'His honor
does order, adjudge and decree, that said con-
tract or agreement between James Boyce, now
deceased, and complainant, be in all things re-
scinded and annulled; and because it appears
from the etidcnce that complainant baa never
received any part of the rents for the planta-
tion, but that an arrangement between him And
Hobert Boyce authorized him (R. Boyce) to sae
Iteed, the complainant'a tenant, in complainant's
name for Boyce's benefit, for the rents of 1819,
1620, leei, le^, and 1S23, that he did so and
recovered therefor, and got the same, and that
complainant did, by his agent, Harry L. Doug-
las, Esq., notify defendants to taice possession
of said land and 'plantation, aa he [*971
would not retain the same on account ot the
fraud aforesaid ; it also appearing, from the rec-
ords of this court, that tnii bill was tiled on
the day of , 1823; that at the
June Term of this court, 1824, complainant
was ready and pressed for a trial, and that the
defendants were not ready for trial at that or
any subsequent term, but continued the same
on their atlidavit; and it appearing to the court,
that complainant did pay said James Boyee the
sum of tl,2SD on the eth day of July, 1818, and
on that day executed to him his note for STSO
in part payment for said land, and that James
Boyce had a counterpart of the agreement;
" 'It is farther ordered, adjudged and de-
creed, that defendant Robert, administrator of
the goods, etc., of Jamea Boyce, deceased, do
pay to complainant the said sum of $1,250, with
legal interest thereon, at the rate of eight per
centum per annum; which appears to be the
legal rate of interest in said Mississippi State;
from the asid 5th day of July, 1818, until this
day, making the sum of $2,065.28, to be levied
of the goods, etc., of said James, in his hands
to be administered, and execution issued tbere-
for as at law; and that defendants do aurrender
to the clerk and master of this court, said not«
for $750, and said counterpart, within three
calendar months after final decree in this cause,
which, together with the agreement exhibited
in the bill, shall be by him cancelled, and that
defendant be perpetually enjoined from execut>
ing said judgment on the law side of this court.
It is further decreed that defendants pay the
costs of this suit, and the costs of said suit nt
law, nod tbtt execution iMU« therefor as at law i'
171
BvrUEME OOUBT OF THK UKITD BTATI*.
— «a bj thfl InEpectlon of the trui*cript of the
record of the said Circuit Court, which wae
brought into the Supreme Court of the United
StKtea by virtue of an appeal, agreeablj to the
■et of CongrcBt in such case made and provided,
full; and at large appears.
"And i*hereaa, in the preaent Term of Jan-
nary, in the year of our Lord 1B30, the laid
cause came on to be heard before the said Su-
preme Court, on the laid transcript of the rec-
ord, and waa argued by counieli on conaid-
eration whereof, it ia ordered and decreed
by the court that tbe decree of the aaid Circuit
tT8*] 'Court in this cause be, smd the same
b hereby affirmed with costs. February 2,
1S30.
"You therefore ars hereby commanded that
such execution and proceedings be had in said
cause as according to right and justice and the
laws of the United States ought to be had, the
said appeal notwithstanding."
In we Circuit Court, the proeaadings on the
mandate were the following:
"September 13tb, 1S30. This cause came on
this day, and on a former day of this term, to
be beard before tbe Honorable John M'Lean
and John M'Nairy, judges, in presence of coun-
sel on both sides, upon the mandamus from the
Supreme Court, aSLrming the decree formerly
rendered in this court; and in obedience to said
preme Court of the United States and the costs
of appeal, to be taxed by the clerk and master;
and upon motion and petition of complainant,
the CBUM is set down for farther directions ;
and it is ordered that the clerk and master take
an aooonnt of the assets of James Boyce, de-
ceased, in the hands of the defendant, Robert
Boyce, to be administered and make report, dur-
ing tUs term, until the coming of which report
other matters are reserved.
"And at the same term, to wit, 1830. This
cause came on for farther directions, tbis ZSth
of September, 1S30; and upon tbe eiceptions
filed I^ the counsel for defendants to the report
of tbe clerk and master, which report was made
In pursuance of a decree rendered at a former
iay of this term, aod is in the words and Bgurea
foUowJDg, to wit:
" 'In obedience to the interlocutory order
made in this cause at the present term, the clerk
and master reports that it does not appear that
any personal assets of Jamea Boyce, deceased,
came to the hands of said defendants aa his ez-
•cutora; but it does appear, from the agreement
between complainant and Robert Boyce, admit-
ted to have been dated the £3d of May, 1823,
and from the depositions of Thomas B. Beed,
Isaac Caldwell, and James E. Oillcspie, that
Roh«rt Boyce has received for rents, previous
to the Ist day of January, ISM, the sum of
92,100. That interest on this sum from the Ist
day of January, 1824, till the 1st of September,
1830 (at the rate of eight per centum per an-
S70*] num, the transaction having taken 'place
Id tbe State of Mississippi, wbere, by the plead-
ings In this cause, that is admitted to be the
le^ rate of interest), will amount to (1,120;
amounting in all to (3,220. The above depori-
tions of Reed, Qillcspie and Caldwell, and said
MTcement are herewith produced aa a part of
this report. It appeara from tlw anawv of i»-
1S8
fendants that the land In controversy waa da-
vised by James Boyce, deceased, to one Richard
Boyce, one of the defendants in this cauae, AU
of which is respectfully submitted.
" 'And exceptions to said report being argued
by counsel and fully understood by the court
here, it is ordered, adjudged and decreed, tbat
tbe exceptions to sud report be overruled, «n4
that the report be confirmed, except so far as
relates to the inUrest on tha sum of (2,100. It
is farther ordered, adjudged and decreed, that
the complainant recover of Robert Boycs tha
said sum of (2,100, with interest from this day,
to be levied of his own proper goods and chat-
tels, lands and tenements; and that, for the
balance due tbe complainant, amounting to
(496.46, with interest from this time, and also
the aforementioned sum of (2,100, in case the
same Is not paid by the said Robert Boyce on
or before the first Monday in March next, and
tbe costs of this suit, that the complainant bas
a lien on the tract of land in the State of Mis-
sissippi, in tbe pleadings mentioned; and Is en-
titled to have tbe same sold to satisfy tbe
above-mentioned sums of money. It Is farther
ordered, adjudged and decreed, that in eaae the
said sums of money and costs of suit, or any
part thereof, be unpaid on the Ist day of March,
next, that in that case, tbe said tract of land
and appurtenances be exposed for sale at
Natcher., in the State of Miasissippi, by com-
missioners to be appointed by the clerk and
maater of this court, on such credit as ha may
direct, forty days' notice of the time and place
of sale being given in some public newspapw
printed in liatchez. And It is farther ordered,
adjudged and decreed, in case of aaid sale, that
the defendants, Robert Boyce, as executor and
administrator with the will annexed, and Rich-
ard Boyce, join in a deed or deeds to the pur-
chaser or purchasers, under tbe direction of the
clerk and maater of this court; and it is farther
ordered, that tbe clerk and master of this court
make report of bis proceedings to the next term
of this court.'
"'The exceptions filed to the report [*990
of the clerk and master, are in the words fol-
lowing, to wit:
" 'Defendants, by their counsel, axeest in
manner following to tbe report of the clerk Uid
master of this court in this cause:
" '1. It is not the fact, aa stated by the aaid
clerk and master, that the agreement between
plication, that the said Robert Boyce had then
or has now assets in bis hands aa executor of
tbe last will and teatament of Jamea Boyoa, do-
ceeaed.
"t. Defendants except to said report, tf
by ft it ia Intended to render Robert Boyce
liable, as executor of Jamea, on the ground tfamt
he had assets in May, 1823; because tha same
may have been long since paid away in dis-
charge of debta due by the testator in Ue Ufa-
" '3. Defendant excepts to aaid revort, be-
cause It should have been statad that tbe agrM-
ment between R. Boyce and F. Grundy, «>f
May S3d, 1823, waa an agreement with satd
Boyce, not as executor, but In hia own indb
vidual capacity, and that said Boyce waa acting
nMratf aa attamey ta fact for said Qnmdy, and
Botce'i Esicutou t. OtniniT.
I* icspon^Ue, if kt mSI, In hit individuaJ capac-
Itj,' 'the eollectiona to be made by aaiil Boyce,
i( the contract between James Boyce and taid
Grundy was readnded, to be, stand and remain
•ubject to future arrangement* between said
parties.'
" 'For these ind man; other reasons to be
assigned on arguroeat, dereudant's couDiel pray
tliat said report be recommitted to said clerk
and nastcr.
The defendants appealed to this court.
The case was argued b; Mr. Lough borongb
for the appellants, and by iit. Key for the ap-
Mr. Longfahorough, for the appellants.
This cause was once before in this court;
when, in 1630, the decree of the court below,
of 1820, rescinding the contract for land be-
I Grundy and Boyce, was affirmed. 3
Peter
, 210.
By the decree of 1BZ6 it was, amongst other
SSI*] things, directed 'that Robert Boyce, ad-
minisirator of James Boyce, should pay to
llrundy $1,250 purchase money, received by
Jame* Boyce, and fSlS for interest at eight per
cent., making 32,085, to be levied of the goods
of tbe intestate.
At the first term of the Circuit Court, after
the affirmance of this decree, the mandate of
this court was entered^ and ou the same day
the clerk and master was ordered to take and
report on account of assets In the hands of Roh-
On the 26th September, during the same
term, the master reported that no assets had
come to tbe hands of the defendants, but that
Robert Boyce had received (2,100 for rents,
under an agreement with Grundy.
This report was excepted to but sustained,
except aa to the interest, and a decree entered
against Robert Boyce in his own right for
$2,100 and interest from the date of the de-
cree. Also, there was decreed to Grundy
9196.46 and interest, making the sum of
$2,506.46 with interest; for the whole of
which the decree recognized a lien upon the
land in Mississippi, and directed the same to
be sold, unless the whole amount of principal,
interest and costs should be paid by the 1st
day of March succeeding.
The proceedings in the court below, subse-
quent to the decree of 1626, are improper.
That decree was fmal, and concluded the whole
It settled the sum, with Interest, due
the costs.
tccree. Nothing is reserved. It is a reserva-
tiiD of further directions in a decree that en-
aMea the court to give the plaintiff any subae-
Jnent incidenUl relief. 2 Mad. Cb. Pr. 456;
Atk. 2M.
The order for an account before the master
«aa erroneous: such an order is io its nature
iaterlocntory. It should precede, not follow a
decree. After a final decree, an order for the
defendant to account before the master, so as to
varj tbe relief sought b; the bill, cannot be
Knted CH) motion. Hendricks v. Robinson, 2
ms. Ch. Rep. 464.
There Is no regular way to call an executor
t4 Moount but by bill. 1 Ball & Baatty'a Rep.
cause comes up to this eonrt a second time, the
:uurt will not look behind its mandate, yet the
prior proceedings will be examined so far as it
•Is necessary to an investigation of new [*28S
points of controversy, between the parties, not
iliapoacj of by the first decree. The Santa
Maria, 10 Wheaton, 431; 6 Cond. Rep. 17B.
The decree now appealed from subjects Boyce
In his own right; yet the bill of Mr. Grundy
does not charge a devastavit. It was not
framed with a view to charge Boyce personally.
It does not pray a discovery and an account
of assetl. It contains no allegations proper to
found proceedings upon against the goods and
I'hattels of Robert Boyce. The facts, the proof
of wliifh was necessary to subject R. JJoyce in
his own right, were not put in issue by the
plaintiU's pleadings. The reference to the
master, therefore, was not proper in this suit;
and the last decree is not suatsined by the
pleadings. Cameal v. Banks, 10 Wheaton, 181;
6 Cond. Rep. 64.
Neither do the proofs sustain the last decree.
In fact DO additional proof was taken after the
first decree, either in court or before the master.
The report of the master was a form only. It
was wholly founded upon evidence in the
cause previous to the first decree. Can the Cir-
cuit Court, after a decree de bonis teatnloria,
which reserves nothing, upon motion merely,
and without farther pleading or proof, make It
a decree de bonis propriisT Can a final decree
ufhrmed by this court be afterwards changed in
a substantial matter by the court below T The
proceedings in the Circuit Court, after receiv-
ing the mandate of this court, show sn amend-
ment made at the inatance of one psrly, the
other objecting, in the body of the first dwrue.
If the last decree is proper, then the first, which
was affirmed by this court, is wrong.
The answer of Boyce does not admit asseta
It responds to the matter of the contract only.
But if it had admitted assets, the admission
was waived by proceeding to an account before
the master. 1 Bro- Ch. Rep. 484; 2 Mad- Ch.
Pr. 3T9.
The master's report should not have been
confirmed. The decree is not sustained by It.
The reference was to ascertain the asRets of
James Boyce in the hands of the defendant.
The report states that no assets have come to
defendant's hands. This was alt the master
in charge. It was within the reference,
and fully responsive to it; and upon this no de-
cree against the defendant, personally, could be
made. Indeed, the 'rrport states the t'28S
fact which discharges Robert Boyce from indi-
idual responsibility.
But the master, exceeding his authority, re-
ports that R. Boyce has received a large sum for
rents of the land in controversy, under an
agreement with Grundy, of May, 1823. The
matter of rents was not referred to the master.
When a master's report manifestly exceeds his
authority, though not excepted to, but con-
firmed, still it must be considered a nullity.
2 Mad. Ch. Pr. 608; I Merivale, 179.
le receipt of the rents by Boyce cannot
charge him personally in this suit for purchase
money paid to his intestate. Boyce received
tbem as attorney in fact for Grundy; and his
responsibility for them is in his individual
ipadty, not aa adndnistrator- The rents,
lag
iii SUPBEUE CoUBT ov
when rcceEved by Boyce, did not I>e<Hiaie asseta
of the estate of James Boyce. The agreemeut
iinder whioh they were collected recites a, con-
ti^mplated suit for the rescission of the contract,
and provides that if the contract be afGrmed,
the rents may be applied by Boyce as purchase
money; but if resciiijcd, tliey are to be held by
Boyce, subject to future arrangement between
the parties. Not only the event upon whicli
alone they were to M applied as purchase
money did not liappcn; hut, by the happening
•>f the otber event, the rescission of the con-
tract, the express provision of the aCTCcment
tooic effect, and they were prevented falling into
the estate of Jamea Uoyce as purchase money.
Boji'c'a A>apon8ibility for these rents is at law,
upon Ibe agreement. Suppose an action
agaiubt him by Grimdy, could he plead thia de-
cree against hiro as administrator, for maney
due from the estate of another as a barT In a
•uit by the distributees of the estate of James
Boyce, for an account and distribution of the
aataU, can K. Loyce be charged with th<j--tc
rents as part of the assets, in the fsL'e of the
agreement, making him rceponsible to Grundy
for them! If this canaot be done, then it sei^iii^
clearly to follow that Boyce cannot be mmli'
responsible for them In this auit; becaiisi' a
plaintiff cannot, in one suit in chancery, unite
K demand against the estate of James lki\.'e
with one against the representative, piTsoriUi y,
for which the estate was never churgculi.t.
The whole effort in this case is to sali^tfy a d..'-
cree against the estate of James Buyce out <if
money due to plaintifl from Kobi'il. Will the
284'j 'court permit the plaintifl thus to unite
his demands! Will it allow him the privilege
of substituting the report of a master in cliau-
eery for an action at law upon the agreement,
and have a summary decree for his money!
Bo;^ce may have a good legal defense to an
action at law upon the agreement, yet of this
he ia deprived by the proceedings l>elow.
Upon the view of the matter now taken in
behalf of Grundy, he has paid for purchase
money not only £1,250, but also $2,100 (the
amount of the rents). Yet he alleged the pay-
ment of {1,260 only, and took his first decree
for the return of that and interest. The report
of the master is founded upon evidence in the
court prior to the first decree. It was not un-
til after the alfirmance of that decree by this
court that new light broke in upon Mr. Grun-
dy.
When a contract is rescinded, chancery puts
the parties as nearly as may be in statu quo. If
it returns to the one his money and interest, it
gives to the other his land and rents. This has
not been done here. Grundy possesses this
land for five years, and now has a decree for
bis money and a large sum for interest, with-
out the estate of James Boyce receiving any of
the rents. This is unequal. The court should
have done full justice.
The decree ia erroneous in respect to interest.
Interest is allowed upon interest. This is im-
proper. Waring v. ChinliiTe, 1 Vesey, Jun. QQ;
Turner v. Turner, 1 Jacob ft Walker, 37; 3
Hen. A Mun. 60-116.
A Hen is declared upon land in Mississippi,
and K sale of it is directed to satisfy the
: Um
D Statcb.
lS3i
jurisdiction to do this. No court nm act di-
rectly in rem nlicn the thing is out of its juris-
diction. Here neither the pi^rson of the de-
fendant nor the land is within the jurisdiction
of the court. Boyce ia a citizen of Kentucky,
nnd it is because he ia not resident within tna
jurisdiction of the court that the case is within
its cognizance. The chancery of England has,
it is true, taken cognizance of caaea respecting
land in Ireland and the colonies, but in such
cases it never attempts to act directly upon the
land itself. Having the person, it acts upon
the lai]d through the person, and compela ft
performance of its decrees by committing tile
jmrty to the Fleet for a contempt by disobedi-
ence. The court below has not 'taken ["386
that course. It has decreed as though the land
in Mississippi were within ita jurisdiction, and
has directed ita officer to aell it. Thia ia e«r-
tainly a novel proceeding.
Mr. Key, for the defendant.
The court below have only fairly proceeded,
in oliedience to the mandate, to such farther
proceedings as were proper.
The mandate is referred to to show that the
Lauae was sent down for "such executions and
proceedings to be had in said cause as were
according to right and justice."
The appellee Died a petition in the Circuit
Court on this mandate, and bad the cause "set
down for farther directions," and then there
WHS an order to the master to take an account.
The report of the master says tliere were no
pergonal assets, but be reports other aaaeta —
real assets, equitable asiiets.
The court then decreed that out of these as-
sets thus found in defendant's handn, be shall
pay over to the complainant the amount ad-
judged to him by thia eourL This ia a proper
execution of the mandate.
The original decree gave a certain relief, and
all that was done by the court below was to
adopt such farther proceedings as were necea-
aary to give the complsinant the relief de-
As to the orders of the court, they are correct,
and according to all the reasonable strictneas
required in chancery proceedings. Cited, 1
Swanst. 203, 573; 2 Bro. Cli. Pi'. 54S. As to
motions and petitions, and further directions
after decree, also, 1 Grant's Ch. 330, 243, 244;
4 Madd. 4G4; 2 Grant, 2-18.
The master's report was properly confirmed.
The decree stittca the money to have been
collected by Boyce. According to the evidence
it was the money of the testator, having been
received from the lands which became his by
the reaeiasion of the contract. The master finds
that that sum ivaa in hia bauds as executor, and
If not assets, under the drcitmstaneei, the
defendant might have been considered to have
collected these rents, pending the controversy.
As to the objection that the court could not
order land in the State of Mississippi to be sold,
lie contended that the court '(the par- ["880
t.es being within its jurisdiction) could proceed
in rem. Penn v. Lord Baltimore, 1 Ves. 8eu.
464: Lord Cranstown v. Johnson, 3 Ves. 170;
1 Salk. 404; 1 Vem. 7S, 406; Carroll t. Ler,
3 Gill &, John. SOIL
BOTCK'a EXECUTOBB V. GXUKDT.
Hr. Jnatice 8tW7 delivered the opinion of
the eoiirt:
This ia an appeal from • decree of tha Or-
cuit Court for the District of Went Tcniifssue,
rendered upon a matidate directing lliat court
to execute a formiT decree of lliis court. Tlie
ease, when focuiFrl; before this court, will be
found reported in 3 Peters. 210; to wliioh refer-
ence may, llierefore, be liad for a full statement
of the facta.
The mstrrial (acta are that the original
pUintiff, Mr. Grundy, in 1S23 brought his bill
against Rulicit Boyce and Rithard Boyce. bh
executor* of Jiimes Duyce, drcL'ss^d, for the re-
scission of a contract for the fn'.c of lands iti the
State of Mississippi, stated in the bill; and for
the repayment of the sums of money paid by
the p'aiiitiff on the contract; and for a perpet-
tial injunctioa of a judgment obtained on tiie
•ame contract. It appeared from the bill and
answer that Rolieit Jioyce alone was qualitiud
as executor under this will, and the answer al-
leged that another and later will had been sub-
sequently discovered, by which the whole pi
ceeds of the land in i — ' j_...-
to Richard Boyce, wh.
ceutor thereof; but h(
•hip, and Kobcrt Boyi
islrator, with the w
hearing of the cause
August, 182B, it was
cRed that the contract
all things
the defendant, Robi
Foods, e
i devised
\a appointed sole ex-
10 u need the executor-
laa appointed adinin-
anrCMid. Upon the
the Circuit Court in
ong other things de-
alcd in the bill be in
ind annulled, and "that
, administrator of the
, of James Boyce, deceased, do pay
tne sum of Sl,250, with legal interest thereon
at the rate of eight per centum per annum,
which appears to be the legal rate of interest
in said IState of Mississippi, from the said 5th
day of July. 1SI8, until Ihia day, making the
•um of t2,U()5.28 to be levied of the goods, etc.,
of the said Jumea in his hands, to be admin-
istered and execution issue therefor, as at law."
From this decree the defendants appi'alcd to
this (the Supreme) court; and (hat the January
Term thereof. 1S30, the decree of the Cii-cuit
Court was afTirmcd with costs; nothln;,' being
191*1 'said as to any allowance of damugeit
or intercM. A mandate in the usual form was
issued to the Circuit Court to carry the same
Into effect. At the September Term of the
Circuit Court, 1830, in obedience to the man-
date, the Circuit Court ordered the cauafi to be
set down for further directions, and it was re-
ferred to the clerk, as maiiti'r, to take an ac-
count of the assets of James Boyce in the
hands of the defendant, Robert Boyce, to be
administered, and to report thereon. The
■water made a report at the same term, stating,
in substance, that it did not appear that any
Krsonal assets oF James Boyce came to the
nds of the defendants, as his executors; but
that it did appear from the agreement between
the plaintiR' and the defendant, Kobert Boyce,
admitted to have been dated on the 23d of May,
1S23, and returned with the report, and from
ecrtain depositions in the case, that Robert
Boyce had received for rents, previous to the
1st ot January, 1824, the Sum of $2,100, and
that the Interest thereon from the Ist dav of
January, 1824, to the Int day of September.
1830, at the raU of eight per cent., will amount
to $1,120, naking in all, <3^20. The report
• lb «d.
also stated that the land in eontroversy waa de-
vised hy James Boyce to the defendant, Rich-
ard Boyce.
Upon the coming in of the master's report,
exceptions were filed by the defendant, Robert
Boyce, and upon hearing the same, they were
overruled, and the report was confirmed by the
Circuit Court at the same term, except aa to
the $1,120. And thereupon the court decreed
"that the plaintiff recover of Bobert Boyce the
sum of $2,10U with interest from this day, to
be levied of his own proper goods end chattels,
etc.; and that for the haiance due the plaintiff,
amounting to S4DG.46, with interest from this
time, and also the aforementioned sum ol
«Z,100, in case the same is not paid by the said
Robert Boyce on or before the tirst Monday in
March next, and the costs of suit, the plamtilT
has a lien on the tract of land In the State of
Mississippi, in the pleadings mentioned, and is
entitkd to have the same sold to satisfy the
above- men tioued sums of money." And it then
proceeded to direct the time, manner, etc., of
the sale.
It is from this decree that the present appeal
is taken, and various objections to it have been
insisted upon in the arguments at the bar. Some
confusion arises in the case from the *re- [*288
port of the master; he having stated, in one part
thereof, that no assets came lo the hands of^the
defendants as executors; and yet, in another
part, having stated that the rents of tiki land ia
controversy had come to the hands of Robert
Boyce, under an agreement between the plain-
tiff and Rolicrt Boyce, without stattug that they
had come to his hands as assets, and were now
to be deemed assets of James Boyce. If, under
the Sfireement, these rents were received by
Robeit Boyce, as agent of the plaintiff, and not
as executor, it is very clear that in the present
suit no dieree could be had against him there-
for; since he is sued only in his representative
capacity as administrator, and therefore no de-
cree could be rendered against him in his per-
sonal capacity. But if the rents, under the
agreement, upon the rescission of the contract
stated in the bill, and finally decreed thereon,
Ite^ame virtually the money of James Boyce,
then they might be properly deemed assets in
the hands of the administrator, and, as such,
liable to the execution of the plaintiff. And we
are of opinion that, under all the circumstan-
ces, the latter is the predicament in which they
are to be viewed; and that the master ought to
have reported the sum of $2,100, so received to
l>e assets. And to this extent there is no ob-
jeiljon to the decree of the Circuit Court.
A more important objection is that the de-
cree is not rendered agninst the administrator
as such, payable out of the assets in his hands
to be administered, or pavablc out of the said
sum of $2,100 (the rents above stated); and If
these assets are not suRicient, then out of the
assets of his testator, quando acciderent; but
the decree is personally against Robert Boyce
for the said sum of $2,100, to be levied out of
his own proper goods and chattels, etc., although
no devastavit Is either suggested or proved. We
are of opinion that the dei'ree is erroneous ia
this ri'Speet, and that it ought to have been for
the amount against the administrator in his
ri'preeeiitalive character, to be levied of the aa-
sets of the testator in lua hands; and as to th«
EuFBCiiK CouBT or THa UniTim Staixb
$2,100, if DO iucli aiSAts ahould be found, then
(mi» upon a devastavit) against the proper goods
of the administrator to the Bsme amount, with
costs. In no other way can the defendant,
Robert Boyce, be protected by ths payment, in
the course of his administration, of tlie asaeta
of the testator; for it will not otherwise judici-
2SB'J ally appear that the 'rents were treated
as assets. And, besides, the decree will not
otherwise conform to the capacities and rights
of the parties, according to the fram« of the
bill and the original decree.
Another objection ia to that part of the de-
cree which creates a lien upon the land in con-
troversy lying in another State, and decrees a
sale for the discharge of the lien. We are of
opinion that the decree is erroneous in this re-
spect. In the first place, the court had no ju-
risdiction to decree a sale to be made of laind
£' ing in another State, by a master acting un-
r its own authority. In the next place, the
original decree, affirmed by the Supreme Court,
which alone the Circuit Court was called upon
to execute, created no such lien and authorized
no such sate. The decree was, therefore, in
both respects, not an execution of the farmer
decree, but a new and enlarged decree. In the
next place, the proper parties, the heirs -at -law
or devispes, were not properly before the court;
for though the master in his report states that
Richard Boyce was, under the will, devisee of
the lands in controversy, this was a matter ex-
tra-oOicial, and not con tided to the master by
the reference to him; and, if it had been, the
bill itself was not framed so as to charge the
devisee or seek relief against him personally,
but only as reprrarntative of the deceased.
Another objection to the decree is that it de-
crees the sum of $496.46, intended, as is under-
stood [though not so stated in the decree), as
interest upon the original sum decreed in the
Circuit Court viz., $2,0G6.28, in I82S, from the
time of the rendition thereof to the afTirmancc
in the Supreme Court, in January Term, 1830.
We are of opinion that there is error, also, in
this pnrt of the decree. By the Judiciary Act
of 1780, ch. 20, sec. 23, the Supreme Court is
authorized, in cases of offirmance of nny judg-
ment or decree, to award to the respondent just
damages for his delay. And by the rulea of the
Supreme Court made in February Term, 1B03,
and February Term, 1807, in cases where the
uit is for mere delay, damages are to be award-
ed at the rate of ten per centum per annum on
the amount of the judgment to the time of the
affirmance thereof. And in cases where there
is a real controversy, the damages are to be at
the rate of six per cent, per annum only. And
In both cases the interest is to be computed as
part of the damages. It is, therefore, solely
S90*] for the decision 'of the Supreme Court
whether any damages or interest (as a part
thereof) are to be allowed or not in cases of af-
firmance. If upon the affirmance no allowance
of interest or damages is made, it is equivalent
to a denial of any interest or damages; and the
Circuit Court, in carrying into effect the decree
of affirmance, cannot enlarge the nmouut there-
by decreed, but is limited to the mere execu-
tion of the decree fn the terms in which it Is
expressed. A decree of the Circuit Court al-
■■•winjf interest in such a case is, to all intents
purpoaes, quoad hoc, * new decree, extend-
ing tha former decree. In Boss v. HImetf, ■
Cranch, SI3, it was said that upon an appeal
from a mandate, nothing is before the court but
the proceedings subsequent to the mandate;
and the court refused to allow interest in that
case, which was given by the Circuit Court in
executing tha mandate, because it was not
awarded by ths Supreme Court upon the first
appeoJ. The same point was fully examined in
the case of The Santa Maria, 10 Wheaton's Rep.
431, 442, where the court held that interest or
damages could not be given by the Circuit Court
in the execution of a mandate, where the saro*
had not been decreed by the Supreme Court
upon the original appeal.
For these reasons the decree of the Circuit
Court must be reversed, and a new decree will
be entered by this court upon the principles
stated in this opinion.
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United States for the District of West Ten-
nessee, and was argued by counsel; on con-
sideration whereof, it is ordered, adjudged and
decreed that the decree of the Circuit Court,
rendered upon the mandate aforesaid, be, and
hereby is reversed and annulled. And this
court, proceeding to render such decree as the
Circuit Court ought to have rendered in the
premises, do farther order, adjudge and decree
as follows: That the said sum of $2,100, re-
ported by the master as received for rents by
the said Robert Boyce, under the agreement
therein mentioned, ought, under all the circum-
stances of the case, to be deemed assets of the
said James Boyce, deceased, in hia, the said
Robert's hands, to be administered according to
law; and that the same ought to be *op- [*S9I
plied, in a due course of administration, to the
payment of the debt of $2,005.28, in the original
decree of th'e Circuit Court, awarded to the
plaintilT, and to the payment of the costs of the
present suit; and it is therefore ordered, ad-
judged and decreed, that the same be so ap-
plied and paid by the said Robert, as adminis-
trator with the will annexed of the snid Jamca
Boyce, accordingly. And it is further ordered,
adjudged and decreed, that execution do issue
against the said Koliert Boyce, administrator aa
aforesaid, for the said debt of $2,005.^8 and the
costs of the present suit, to be tevivd of the
goods and chattels, etc., of the said James
Boyce, in the hands of the said Uohcrt, admin-
istrator as aforesaid, and if none such sliflll be
found, then to be levied out of the proper
goods and chattels, etc., of him, the uid
RoberL
JAMES BIRTH.
Instruction to jury.
« la DO evidence tending ta prare ft
t, the court ar* bouud to to lustntCt
Kotz.—Ait to wbal are qiiestl'nii of U
Jurv, and whni are quesdona ot law for
•e* DPte to D U «d. U S. 1».
tha eoort.
lb* Jmr when Mqnnted ; bat thn cannot Icraltr
■1v« nnj InstrncUOD whlcb (ball take from the Jurj
OM risnt of welibluK what effect th« evidence
•hall baTe.
Ad liutrnctlon to tbe Jurr. lonnded mi part af
■^ —--» onlj, li error.
This case was argued by Mr. Coze and Ur.
Jiuea for the plaintiff In error, and bf Mr.
Swuta and Mr. Key for the defendant.
Tlie e«Be is fully stated in the rainion of the
«>iuTt, delivered bj Mr. Jviatice IfLean;
This cAse is brought ttefore thia court bv ft
writ of error to the Circuit Court <rf the Dis-
uict of Columbia.
The plaintiff eommeaced an action of eject-
vent against the defendant, and on the trial
abowed K legal title to the premise* in dispute,
dfdnced from the patentee, by mesne convey-
■neea, down to the 13th of May, 179S. Thia
tit'e was not controverted by the defendant, as
he claimed under it; but he read in evidence
the following deeds and documents, to show
that the titk to the piemise* in controversy
was out of tlie plaintiff and in himself:
t of agreement dated the 10th of
all his title to a great number of lots in the
city of Washington, for the consideration speci-
fied, reserving all lota which had been sold
previously, supposed to be nine hundred and
ninety, uid also eertun other lota designated.
2. A deed of conveyance by the plaintiff to
Morris and Nicholson, in pursuance of the
above articles of agreement, dated the 13th of
May, 1796. In this deed there is the following
clause, "excepting, nevertheless, ont of the lots,
squares, lanito and tenements above mentioned,
atl*] all that square marked and 'distin-
guiahed on the plat of the said city of Wash-
ington by the number 600, all that other square
lying next to and south of the said number,
SOe, etc., and excepting also all such squarea,
lota, lands or tenements, as were either con-
veyed or sold or agreed to be conveyed, either
by all or either of them, the said James Green-
leaf, John Nicholson, and Robert Morris, or
any of their a^^t^ts or attorneys, to any per-
son or persone whatsoever, at any time prior to
the 10th of July. ITDS."
3. A deed from Morris and Nicholson, dated
the Zeth of October, 1706, to William Duncan-
soa, William Dealcina, Jun., and Uriah For-
rest, for the eonsideration of 950,000, for a
great number of squarea in Washington city,
aad among others, square 75, all of which
squarea were stated to be worth 1218,008. In
this deed tlrare is escepted, "luch part of the
•aid squares, and all, and every of them, as
■ay have been heretofore sold b^ James Oreen-
IctU, or by tbem the aald Moms and Nichol-
4. A deed from William Duncanson to Dea-
Una and Forrest, dated 10th of August, 1797,
wUeh conveyed to them all his Interest in the
•qoaiee redted in the above deed from Morris
■■d Nkbolson.
5. The Ust will and testament of William
Deakins, which vested in hia brother, Frsncis
Deakins, the right of the testator to the above
aqnarea, for certain uaea espressed in the wilL
t U ed.
0. A deed from Francis Deakln* to Uriah
Forrest, dated the 31st of May, 1602, for lot 17,
In square 76, being the property in dispute, to-
getlier with other lots in the sam* and other
7. The following instrument to Shaw and
Birth: "We agree to convey to John Shaw
and James Birth, their heirs or assigns, the
lots number 18 and 17, in square number 76 in
the city of Washington, assuring it against our
heirs and all persons claiming under us, on
their paying two notes of this date, each for
460 dollars and 2 centa, bearing interest from
and since the 1st day of September last past
— one payable the 1st of September next, and
the other the 1st of September, ISOl. Witness
our hands and seals, tint lOth October, 1700.
"Uriah Forrest, [Seal]."
8. A deed from the assignees of U. Forrest
to John Shaw "and James Birth, dated [*»94
23d November, 1807, for the lot in controversy
0. A deed by the trustee of Shaw to Birth,
the defendsnt, for the same lot, dated 7th of
August, I83ti.
10. A letter from Forrest to W. Cranch, the
trustee of Greenleaf, stating that he had sold
lot 17 with others, to which, he understood,
Cranch had a claim as part of the estate of
Greenleaf; and a proposition is made that,
should the property eventually be decided to
belong to the estate of Greenleaf, the purchaM
money should be received in l^eu of the prop-
erty. This letter is without date.
11. The reply of Mr. Cranch, dated 2d No-
vember, IT&U, in which he consents to the
proposition on certain conditions.
Thomas Monroe, a witness, was introduced
by the defendsnt, who stated in substance that
the first occupation of the lot in controversy
known to him was in May, 1802. There was
then a house on said lot, in which Shaw and
Birth resided. This lot is bounded by the main
avenue, leading from the President's house to
Georgetown. That the plaintiff was frequently
in the city in the years I7M and 1705; but wit-
ness did not see bim in Washington between
the years 1TB5 and 1802. He heard, soon after
the transaction, of the contract of General
Walter Stewart with Qreenlraf, Morris and
Nicholson, for the purchase of the lot in con-
troversy, and several other lots and squares in
Washington. That Stewart built some houses
and commenced others, which were left unfin-
ished when he failed in business; and that he
died insolvent sometime about the year 1708.
That after the deed from plaintiff to Morris
and Nicholson, they seemed to have the man-
agement and control of the property conveyed
by that instrument; and also to be generally
recognized as having the settlement of the sales
of the joint property of Greenleaf, Morris and
Nicholson, made before said conveyance, and
as having the right to receive the purchase
money from the several purchasers; and the
witness states that one Davis acted as agent for
General Stewart respecting his purchases, and
that after his death Davis continued to act aa
agent for his repreaentativea.
And it was also proved by defendant that the
said lot 17, in square 76, was asaeascd on the
corporation hooka to 'Shftw and Birth, l*39a
from the year 1S03 to the year 1828; and that
the first assessment of corporation taxes was
BuPBBUB uocBT or THK Umna StAna.
made tn the year 1803. It wu also proved that
•quare TG is not either of the squares deserilud
In the deed from plaintiff to Morris and Nich-
olson, as lying next to and soutb of square 50S,
ftnd the one adjoining that square on the south.
Defendant utao proved that Shaw and Birth
took possession of lot 17 after their agreement
with Forrest, in October, 1700, and prior to
that time it was under the superintendence of
Joseph Forrest, aa the agent of U. Forrest.
And the plaintilT, to explain and rebut the
•vidence introduced by the defendant, proved
the eoDtents of a written contract under the
hands and seals of Morris, Nicholson and
Greenleaf, on the one part, and Walter Stewart
of tlie other, dated on the l»th of February,
1795, in which Morris, Nicholson and Grccnteaf
bargained and sold, and covenanted to convey
to said Stewart, on the first of June thereafter,
certain lots and squares in the city of ^^'asb-
tngton, and among others, the lot now in con-
troversy. And to lay the foundation for the
introduction of a copy of this agreement, the
deposition of Walter C. Livingstone was read,
in which he states that he has diligently
searched, in various places, among the papers
of Nicholson, for the original contract with
Stewart, without being able to find it. That
Nicholson died some years a£0, insolvent.
That the diponent received from W. P. Far-
rand a paper purporting to be a copy of said
contract, a copy of which the deponent an-
nexed to bis deposition.
The affidavit of the p'aintiff was also read,
stating that duplicates of the original agree-
ment with Stewart were signed, one of which
was taicen by the affiant and the other was de-
livered to Ktewsrt. That the affiant left his
original with William Cranch, of Washington
city, who was then acting as agent for him,
and be believes that the agreement was deliv-
ered to Nicholson by Cranch sometime in the
year 1796. That affiant has neved seen the pa-
per since, although he has made diligent search
for it among his own papers, and at many other
places where be could expect to find it.
William Crunch, being sworn, states that for
several years he acted as the agent of the
p'aintiCT, and had the charge of his papers, etc.
That his agency extended to property in
296*] •which Nicholson and Morris were
interested with the plaintiff. By means
of this agency he became acquainted with
the transactions of the above parties, in re-
lation to their property in Washington; and
he believes that, on the 10th of July, 1795, and
13th of May, 1708, there was an existing valid
contract between Morris, Nicholson and Ureen-
leaf, and the late General Walter Stewart, for
the sale, by the former to the latter, of the lot
in controversy. That he received from Green-
leaf, then in Philadelphia, in a letter dated
19th February, 1805, a poper purporting to be
■ copy of such an agreement, under the hands
and seals of the parties, by which the square
7B, in Washington, with other squares, was
contracted to be conveyed to Stewart, on or
befora the 1st of June, 1705. That after the
decease of Stewort. George Davis, of Philadel-
phia, acted as the agent of the representatives
of Stewart, in relation to the property. That
he has a strong impression that lie saw the
originiil contract with Stewart, and if he ever
it*
had the original, be baa no doubt he eompftred
It with a cupy which he had previously miada
in 0. bonk, and which copy he sets forth in his
deposition. Various other facts are stated by
the witness, as to notice given by hira to certain
purchasers, under Morris and Nicholson, of lots
included in the Stcwsrt contract, and wliich
«ere excepted in the deed of 13th of May, 17««,
from the plaintiff to Nicholson and Morris; but
he does not recollect of ever having given no-
tice to Shaw and Birth, or either of them.
It was insisted in the argument of this case
that the copy of the Stewart contract, which
was admitted as evidence to Ihe jury, should
have been excluded; as a sullklent foundation
for the admission of a copy was not laid, and
that the psper read was a copy of a copy.
This objection is sufficiently answered by
saying that the defendant con only take ad-
vantage of it on his own exception. The case
is now before the court on the exceptions of
the plaintiff.
The evidence being closed, the plaintiff, bj
his counsel, moved the court to instruct the
jury "that the evidence produced on the part
of the defendant docs not ehow a sufiicient le-
gal title to the premises in controversy rested
in him, by the documents and deeds read in
evidence."
The language of this instruction would seem
to imply that *to make good his de- (*20I
fense, the defendant mutt establish a legal title
in himself.
When this case was before the court on the
former writ of error, the dcfcndHnt insisted
that the deed from the plaintiff to Nk-holson
and Morris showed an oulstaiiding title; the
court said, "the defendant sets up no title in
himself, but seeks to maintain his potsessioii
as a mere intruder, by setting up a title in
third persona with whom he has no privity.
In such a case it is inciimhont upon the party
setting up the defense to eatab ish the BXist-
ence of such an outstanding title beyond oon-
troversy."
The court do not say that the defendant
could hot show an outstandin<; title unless h*
liihited some eviden^ii of title in hiniaelf;
but that where an Intruder relics upon an out-
itanding title, he must establish it beyond con-
troversy.
In the prevent case the defendant gave la
'idence to the juiy a deed of conveyance
from Morris and Kichol»>on to Duncaneon,
Williams IVakins, Jun., and Uriah Forrest,
which covered the property in controversy, un-
'ss it was excluded by the exception of
luch parts of the said squares, and alt and
■cry of them, as may have been heretofore
>ld." And also a deed from I>uncan3<m to
Dcakins and Forrest, and a deed from the dev-
isee of Ueakins to Forrest, ami a deed from
the assignees of Forrest to Shaw and Birth;
and also a deed executed sub.-t.;Liently to the
commencement of the action, from the trustee
of Shaw to Birth.
From this exhibition of title, it appears that
the defendant Birth had a legal title to one-
half of the tot in conit-oversy when the suit
was commenced, unless it was excluded by the
exception in the deed from Ihe plaintiff to
Morris and Nicholson. And. whclhor thia ex-
ception excludes the lot, depends upon otW
Poicrs «.
tOf
UE&BD n i
rvidence than thftt which the d«eds rvferreil to
afford, and of the effect of wliich, a part of it
bciDg Jd parol, the jury are the proper judges.
It would soein, therefore, that the Circuit
Court, when requested to instruct the jury
that the defendant had not proved a sufficii'nt
legal title in himaelf, very properly refused to
give the instruction.
But the court, upon the prayer of the de-
fendant's counsel, gave the following inatruc-
Uod: "If the jury should believe from the ev-
idenca that, prior to October, IT9B, Uriah
SSS'j Forrcat "was in posse.sziion of the prem-
ises in the declaration mentioned, and that he
■greed to sell the aame to Shaw and Birth on
the 16th of October, 1790; and that said Shaw
and Birth, and the defendant claiming under
tbem, have been in poascssion of the same ever
■ince, and that they liave paii the taxes on the
■ame to the corporation of Washington ever
■iiK-e 1803, whpn ciiy property was first aaseBsed;
■nd that no claim or demand for said premiiea
was ever made upon them or said defendant,
until the brinj^'in;; of this suit in 1818, then it
la competent for the jury to presume that the
title to said premiaea passed fium said James
Greenleaf, by the deed of the 13th of May,
IT96, and that the said premises were not
included in any of the exceptions of said
deed."
All the facta hypothetically stated in this in-
atmetioa may be admitted, and yet the conclu-
aioa attempted to be deduced from them does
not necessarily follow.
The possession of the defendant did not en-
able him to plead in bar the statute of limita-
tions, nor hod the ordinary time elapaed
which authorizes the presumption of a title.
That the length of poascsaion, and the other
facta stated in the inaCruction were proper sob-
jecta of consideration for the jury, may be ad-
mitted; but the objection to the instruction is
that it was founded on only a part of the eri-
dence in the case.
It does not embrace any of the facta brought
before the jury by the plaintiff, in relation to
the contract with Stewart. This contract was
introduced to show that in February, 17B5, the
tot in diaput« was sold to Stewart, and was
consequently within the exception of "all
•och squares, lots, lands or tenements, as were
Mtlier conveyed, or sold, or agreed to be con-
veyed." which was contained in the deed from
tbe pliiintiff to Morris and Nicholson on the
I3th of May, 1794.
It is incumbent on the defendant, who claims
under this deed, to show that the lot in qiies-
tioo does not come within the exception. And
the plaintiS may show that it does come within
the exception, and, consequently, that no titU
to tbia lot passed by the above deed. And if
M> title passed out of the plaintiff under this
deed, then the fee remains in him, and he has
■ right to i«eorer possession of the premises.
This was the main point in tbe case; but the
evidence, which the plaintiff insisted, proved
I»»*l the lot in controversy to be •within the
exception, was. by the instruction, excluded
from the consideration of the jury. They
were aothoriced to presume a conveyance of
Um lot, by the deed of ITDQ, upon the existence
if facts wholly disconnected with Stewart's
eoDtract, and the eslstenca of whidi might be
impatrlitg
proper for the jury to conaider tliis contract
connected with the other evidence, and to draw
their conci II MoiiJ!. not from apart, but the whole
of the far>t3 in the cauae.
The counsel for the plaintiff farther prnyed
the court to instruct the jury that "the evi-
dence was not suSicient to prove that the said
contract between Morris, Nicholson and Gr'vn-
leaf, oil the one piii*t, and W. Stewart on the
other, bad been nnnulled or rescinded between
the partiea at any time prior to the execution
of the deed by llie piaintifT to Morris und Nich-
olson in May, ITilfi."'
If this construction be considered a> asking
the court to determine on tlie effect of the ev-
idence, it was properly refused. It Is the prov.
ince of the jury to weigh and decide on the suffi-
ciency of the evidence; and from the words of
the instruction it would seem to be conceded
that there was some evidence of the reaci anion
of the contract, as the court were askfd
to instruct thu jury that the evidence »as
not sufficient to prove the fact, VVhere
there is no evidence t'-nding to prove a particu-
lar fact, the court are bound so to instruct the
jury, when requested; but they cannot legally
give any instruction which shall take from the
jury the right of weighing the evidence and
determining what effect it shall have. In this
view the Circuit Court did not err in refusing
the alwve instruction.
As the instruction given on the prayer of
the defendant waa founded on a. part of the ev-
idence only, tbe judgment of the Circuit Court
must be reversed, and the cause remanded for
further proceedings.
This cause came on to be heard on the
transcript of (he record from the Circuit Court
of the United States for the District of Colum-
bia, holden in and for the County of Alexan-
dria, and was argued by counsel; on consider-
ation whereof, it is adjudged "and or- ['300
dered by this court that the judgment of the
said Circuit Court in this cause be, and tiie
same is hereby reversed, and that this cause be,
and the same ia hereby remonded to the said
Circuit Court, with diret'tiona to award ■ venin
facias de novo.
JOHN ROWAN.
Ken til
ky. The
John
Campbe 1. nndec v
ie ISDd L
y WHS
lime my
said bair
er, Allea
c
smpbcll.
shall
Note.-
-AS to CO
ndll
6 L. ed.
As to
e. 89.
lake an
old real
estate
£■?".'
SlTlec^So
0 B L. ed.
U
S. *Si ;
28 L.
As to
right of
to tske
Hurler en
abhne .is
ulea
see note
to
7 L.n A.
N.8.)
6UPKEIU CouBT or I
at, J tben direct that
d half-brotber. Allen C:iiai)Udl,
;Da, la ti-p-ilmple. all tbe land
wllbia tbe tlm<
e ol tbe a^ld I.
hfrelnbeiore deacitlied In
Mid bsll-bi
wld. becoK
or them, m
hereby d)|
>Dna>lI;. acd
to whom 1 give and b«qoeaClt tbe ume. Bi
mi BBld tiiuI-broIb«T lifcome ■ clHiea of I
ed Stales, or be otherwise qiiatifli'd lo 1
eitate wltblo the same. Iietore his death. 1
mj will and desire tliat be ahall have the
aliulute dUpoBol ot all thtr emate hcrelnli
vised or bequeathed t~ •■'- ■ ——"■-—
State of Kent
1 Ii'iilBiid. (
mberl 18U4. wht:
Od the ISIb ot December, IgOO, tbe Uglslature
ol Kentuokj paased a law reciting that by the laws
then In force aliens could not hold landg therein,
and It li considered the Interest of the State tbat
■uch pruhtUIIlon should lie done awni. It then
prOTldes that any alien, other than alien pnemtea,
who shall bore sctuall; resided within the Corn-
full elTect and brncfll of this i
which glTes to It a prospective as well as a relro-
f-cUvf nn"'lcntlon. and under thii. .'ou struct! oil,
Allen Campbell became guallfled lo take and bo',6
■ cltl«n of tbe Slate. The deirise to Allen Camp-
tbe contlnRencj of bis beiomfng a' clllien of tlje
the contlDgenry but bj expreaa llmltBtlon In I
devise, happen In tbe lifetime of ibe devisee.
ever; and uton tbe happehlne of this conlliieeni
In i ted StAtea for the Kentucky
District.
John Campbell, A native of Ireland, whn
emifKrntPd to tbe State of Virginia before tlic
Revolutionary war, and continued to reside in
Kentucky until his decease, which took placid
In October. ITS9, was the owner of a tract of
Und situate above and below the moutli of
Bear Grass Creek, on the Ohio; oonipriaing
the land on which, by an act of the Legisla
ture of Virfcinia, the city of Louisville wua
laid out. Upon the erection of a part of Vir-
ginia into a separate Slate, these premiBea be-
come a part of llie Slate of Kentucky.
At the time of the making of his last will
■nd testament (25th of July, 17BS), .Tohti
Campbell, who was never iiiBrricd, had a
brother of the whole blood, Robert Campbell.
also a citizen of the State of Virginia, a father
a halt 'brother named Allen Campbell, and a
■ister of the whole blood named Sa.rah Bearil.
who was a widow and had children. Hi^
lather, balf-brotber and sister were natives of
Ireland, and subjects of the King of Great
Britain and Ireland in 17eS. The father of
John Campbell died before him. By his will,
wliifli waa duly proved and recorded on the
E UMiTBt Statu. lUUt
I3th of JanuaiT, 1800, John Campbell de-
vised hia estate both real and personal. In
Jame* Milligan, William Elliot, and Philip
Koas, and tbe survivor and survivors of them,
in triut for the uses and purposes stated in the
Tbe proviaions of the will of John Camp-
Ix^ll, out of which the controveray between the
parties to this case arose, were the foliowing:
"I do further direct that after the decease ol
my said father, all the prolits of my lands
within live miles of the mouth of Bear Graaa,
shall be Hnnutilly paid to the guardian of my
said half- brother, Allen Campbell, during hia
minority, to be applied to his education and
maintenance, if so much be required thcrtfor;
if not, then the overplus to be laid out on in-
terest by my said trustees, till my said half-
brother shall arrive at the age of twenty one
years or marry; but upon either of the i-aid
contingencies happening, the aforesaid pro<its
shall then and thenceforth be paid to my stid
half-brother, for and during the term of :ive
, and it within that time my aaid hoif-
brother shall become a citizen of thi- Unitt-il
Statea, or be otherwise qualified by law to tnku
and hold real estate within the same, *I (■30S
then direct that my said trusteea, or the aur-
vivors or survivor of them, shall convey to
Mm, my said half-brother, Allen CamplK-l'l, his
heirs or asaifins, in fee-simple, all the lamU
hereinbefore dcii<<ribcd in this devise; but if
my said half-brother shall not within the time
aforesaid bccoiue a citizen as aforci^ald. I
tlien direct that my said trustoes, or the surviv-
ors 01 survivor of them, shall sell and dis-
pose of the aforesaid lnnds liereby di-
rected to be conveyed to him on two years'
credit, with interest from the date, to be paid
annually, and the money and interest arising
from such sale to be transmitted to my said
lialf -brother, to whom I give and bequeath tlie
same. It is my further will and dexire that,
in cose my said half-brother shail die before
the expiration of the aforesaid term of Kve
years, after his arrival at the s^c of twenty-one
years, the land intended by the ne:tt preceding;
clause to be devised to him, shall lie sold by
my said trustees on two years' credit, and the
money arising from such sate, when received,
shall be triniKmitted to the guardians of the
children which my said half-brother may leave,
lo be by the said ^ardians lent out on inter-
est, and an equal division shall be made thereof
amongst them; but should my said half-brother
become a citizen of the United States of Amer-
ica, or be otherwise qualihed to hold real es-
tate within the same before bis death, it is Ihon
my will and desire tbat he shall have the ante
and absolute disposal of all the estate taercin-
Iwfore devised and bequeathed to him, not-
withstanding be may not hava obtained deed*
therefor from my said trustees. It is my fur-
ther will and desire that, in case my said half-
lirother shall die before he shall become quali-
iied to hold real estate as aforesaid, and with-
out children or a child, my said trustees shnll
make aale of the lands, hereby directed to he
conveyed to bim, as is before directed, on two
years' credit, and that tbu money arising by
Aale be appropriated tA the use of my said sis-
ter, Sarah Beard, and all the children which
•tiB bath, Of may hereaftar have, to be lent out
an intereat, W is directed io the aereral de-
riiea, bequests and limit at iodb hereinbefore
made to taeoi; the interest and priiiripo) to be
trmnamittcd, and their proportions tlicreof re-
bpei-iively to be the same, anii Biibject to the
aanie rules, liniitatioaa and condilionB as are
directed and prescribed in the caaea of the
othei before -mentioned devises and bequests
to mj (aid sisU-r and her chiJdren.
304*j '"And vhereas 1 conceire tt to be
greatly to the interest of the several deviaeps
hereinbefore mentioned to become citilena of
America, and take possession of such parts of
my estate aa are hereby intended for them, re-
apeetirely, inatead of selling the same and re-
ceiving the consideration thereof; I do there-
fore direct that all and every such devisee shall
have a right to receive their respective pro-
portiona of whatever lands may be usdiaposed
of at the time of their becoming qualified to
take and bold the same, and that my said
trustei'S, or the survivors or survivor of them,
shall mAbe fair aod eouiteble divisions accord-
ingly, and convey to tfiem tlieir respective pro-
portions as aforesaid; and ahould my said sis-
ter come over to America before that part of
my lands hereby intended for her and her
children shall be disposed of by my trustees,
I then direct that the same shall not be sold,
but (bat the pvollts thereof shall be annually
appropi'iated to the use of her and her children
a* aforchsid, until her children shall come of
ape, or mnrry; but that whenever any one of
iliem shall arrive at the age of twenty-one, or
Riarry, his or her proportion of luch land
shall be conveyed by my said trustees, or the
•lurvivors or survivor of them, in fee-simple,
provided such child shall be capable of holding
the same. I licrcby direct that upon all snha,
which shall be made of any part of the prop-
erty herein directed to be sold, good landed
security shall be taken for the payment of the
C, in any
seen eventa may hnpppn which may make it
prudent to delay making the sales herein di-
rected to be made, I do therefore authoriie my
•aid trustees, or the aurvivora or survivor, to
use their or his discretion therein so aa to guard
against auch inconveniences or losses, aa there
may be danger of the estate sulTering by pre-
cipitating the sales. I alao authorize them or
him to alter the times of credit upon such
■ales, should It be found to the interest of the
estate so to do-
"I d« hereby revolce all former and other
willa by me made.
"In witness whereof, 1 hare hereunto set
mv hand, and affi.xed my seal, this 25th of
July, 1788. John Campbell, [Seal]."
105*] •"Signed, sealed, published and de
clared by the testator aa and for bis last will and
testament, in presence of ua, who subscribed
witneasea, in his presence, and by
Harry Innda,
T. Perkins,
Christ. Greenup.
TThe executors named in my laat wifl and
teatament are James Milligan, aa aforemcn-
tiooed; Charles Kimms, of the town of Al
ranlria, -
hia desii^
eiamlriM. in the County of Fairfax, attorney at
. T. Rowan. IN
law; Rieliard Taylor, and , of JefTeram
County; William Elliot, of Westmoreland
County and State of Pennsylvania; and Philip
Koss, of the County of Washington, in tlia
same State. John Campbell.
"I, John Campbell, have this day erased
the name of James Sullivan from the number
of my executors, as he haa destroyed in
m^ lifetime the eonSdence which 1 would
wish to repose in a man that would, in my
opiiuoa, b« worthy to act for me after my death.
"John Campbell.
"Ap.il 6th, 1701."
In the Circuit Court of the IKstriet of Ken-
tucky, the plaintillB in error sued out a writ
of right on the 6tb day of January, 1830, and
an alias writ of right on the 3d day of June,
1830, against John Kowan, the defendant in
error, and claimed one hundred acres of the land
near the mouth of Bear Grass; Henry A. Beard
as a citizen of the State of Ohio, and the other
plaintiffs as citizens of Missouri. The defend-
ant in his plea claimed ninety-five acrea of
the premises in question, and disclaimed aa to
the residue, put himself on the assize, and
prayed reco;{nition to be made, whether he or
the plaintiffs had the greater right to hold the
premisea so claimed by him.
The cause came on for trial at the Novem-
ber Term, IS3I, of the Circuit Court, and tba
following facts were agreed upon to be used on
the trial :
"The parties in this cause agree to the fol-
lowing facts, to wit: First. That John Camp-
bell was bom in the Kingdom of Ireland; that
he came to the United States of America prior
to the Revolutionarv war; that he continued to
reside in the said 'United States from ['308
the time of his migration thereto until he de-
parted this life in the month of October, 1799,
in the County of Fayette, in the State of Ken-
tucky, where he then resided; that on the 2dth
day of July, 1786, he made and duly published
hia last will and testament, bearing that date,
with nn indorsement thereon dated the 5th day
of April, 17B1 ; that aaid will and indorsement
were duly proved and recorded on the 13th day of
January, 1800, in the County Court of the said
County of Fayette; and that the said John
Campbell was sei):ed, in fee-siuiple, at the
time of hia death, of the premises in question
in this action, and that he died without ever
lioving been married.
"Second. That Robert Compliell was bom
in the Kingdom of Ireland; that he migrated to
the United States of Ameriea before the Revo-
lutionary war between Ihe United SUtes of
America and Great Britain; that he continued
to reside therein until his death, which hap-
pened in Auguat, 1805. near I.A)uisville, in the
County of Jefferson, in the State of Kentucky;
that he had resided in Kentucky many yeara
before his death; that he was a brother of the
whole blood of the said John Campbell, and
died intestate, and was never married.
"Third. That Allen Campbell was bom In
the Kingdom of Ireland, and was about twenty-
live or twenty -six years of age when he died;
that he migrated to tlir Un;t<-d States in the year
179(1. and reciJed in the city of Philadelphia
until hr rnme to the ^1 ate of Kentucky, which
was in the month of December, 17I)S; that he
resided i)| Kentuckf from that time until tha
1S7
BvFBBUE ConiT at xaa Unitid Stasib.
leth d*j of September, 1S04, when he departed ,
this life intestate, and waa never married. That i
he WKS a half-brother on the father's aide to the '
■aid Jolm anil Robert Campbell and Sarah Bcaxd.
"Fourth. That said Sarah Benrd waa born
In the Kingdom of IrelsJid, and migrated to the
State of Kentucky in the rear 1800, where she
continued to reaide until October, 1806, when
she departed this life; that she waa a aiater of
the whole blood to the said John and Robert
Campbell, and a sister of the half blood to the
a«id AUea Campl>ell, on the side of the father;
that she was a widow when she came to K«n-
tuck;, and continued to be a widow until her
d.-ath; tliat at her death slie had three surviving
children, to wit, William Heard, Joseph Beard,
and Elizabeth Mcgowan, all of whom were bom
SDI*] in Ireland; *that the aaid William
Beard csme to the United States in the 1700,
aad WB3 never naturalized, and departed this
life in the jear IBIS; that he waa married and
had two children, issue of aaid marriage, at
the death of said John Campbell, to wit, Nancy
C Beard and Sarah Beard, who were his only
children at that time; that aaid Nancy C. Beard
intermarried with Roiwrt Bywaters, and ia atill
living; and Sarah Beard intermarried with
Hankcrson Bywaters, and Es still living; that
the mother of the said Kancy and Sarah de-
parted this life, and the aaid William Beard
married a aecond time, and had the following
issue of naid marria;;e, to wit, William A.
Beard, Catharine Beard. Mary Beard, John
Beard, Charles Beard, and Joseph Beard, all of
whom were bom since the death of the said
John Campbell; that the aaid Ca lb urine Beard
has intermarried with, and is now the wife of
Henry II. Shepard; that the aaid Mary Beard has
Intermarried with, and is now the wife of J^ewis
Hawkins; that the said CliBries Beard dt'pnrted
thia life in March, 1S3I, an infant and child-
less; that the said John. Charles and Joseph
Beard were horn aince the death of the said
Sarah Benrd; that the said Joseph Beard and
Klizabath Megowan, children of the said Sarah
Beard, came with her to Kentucky and are
still livinfi; that the following are the children
of the aaid laat-nunied Joseph Beard, to wit,
Henry Beard, Ann Daley, wife of J.«wreDce
Daleyj laahella M'Lear. wife of Charles M'Lear;
Sarah M'l^^ear, wife of Francia M'Lear, and
Joseph Braril, Jim.
"FifLh. That the aaid .John Campbell. Reb-
ert Campbell, Allen Campbell, and Sarah Beard,
were the only surviving children of Allen
Camplwtl. the elder, who depnrtrd this life In
Ireland before the said John Cnmphel!.
"Sixth. That Charles Rimms and Rinhnrd
Taylor survived the other trustees and exenu-
tors of John Ccimphell; that aaid Sininix de-
parted this life in the Diatrict of Onliimbia.
• bout the year ISiij or 1S26, never having boen
In the Stnte of Kenturky: that neither of the
other truiteps esf-ept Taylor and Sullivan, were
ever in the Plato of Kentucky after the dentil
of said John Camplicll; that aaid Taylor re^irli^il
therein at the death of Campbell, and so con
tinned until his death, which happened in the
jear 1S2S or 1B2<J; and that said Taylor alone
qualifled iia executor of said John Campbell, in
Kentucky.
808'] '"Seventh. That the aaid defendsnta
were poaieaaed ol the premuea w eont«st in
IS*
action at the time of the service of the p
on them in this case, and are nov
thereof, and also were in possession of aaid
premises before and on the 21at day of April,
1826. The pai'tiea aforesaid do farther agrea
that it shall be competent for either of them to
introduce evidence, either written or parol, to
establiah any facts not herein and hereby agreed
to and admitted, which they or either of them
may deem necessary and within the issue."
The demandants made title under the will of
John Campbell, and under a deed executed mi
the 2lBt of April, 1820, by Richard Taylor, ai
executor of the last will and testament, and
trustee of the estate of John Campbell, to
Joseph Beard, Elizabeth Megowan, and the
heira of William Beard, the material parta irf
which instrument were the following:
"The said John Campbell 'did, by his laat
will and testament, duly made and published,
on the 25th day of July, 1T86, devise to James Mil-
ligan, Charles Simms, Richard Taylor, William
Elliot, and Philip Rosa, and the aurvivors and
survivor of them, whom he did thereby appoint
executors of hia last will and testament, all hia
estate, both real and personal, in truat for cer-
tain uses and intents therein mentioned; and
whereas all the said executors and trustees have
renounced the execution of said will, except
Richard Taylor, the first party to these prea-
enta; and whereaa the said John Campbell, de-
ceased, did. by hia last will and testament, pro-
vide that all his real estute in the County of
Jefferson aforesaid, within five miles of the
mouth of Bear Grass Creek, should be con-
veyed to his half-brother, Allen Campbell, lo
soon as he bei^ame a citir.en of the United
States, or should be otherwise qiinlilied to hold
real estate; or that in either event happening,
the said Allen Camp)>ell should, without a deed
from the trustees or trustee of said John Camp-
bell's will have the diaposnl of said real estate,
within the limits aforesaid: and whereas the said
Allen Campbell died in IPIH, without having
di»po)ied of certain parts of said real estate, fa
uny way, and without having ever received k
title to said renl estate, by which it a^in re-
verted to the eslBte of said Camplicll, and be-
came subject to the devises in hin will, as to so
much thiTi-of as was undTxpoaed of by said
Campbell durinf; his lifetime.
•"And whereas the said Richard Tay- [*80t
lor, sole executor and trustee aa aforesaid, in con-
sideration of the premiscB. is wiltinp to convey
the property aforessid.exeept so mucft thereof as
he hath this day conveyed in a separate deed to
same pnrliea, to the heirs of Sarah Beard, de-
ceased, as is direeted in the aaid last will and
teEtnment of said John Campbell, aa will more
fully appear, reference being had thereto. Now,
therefore, in consideration of the piemisps, and
fur the farther conetderation of one dollar to
him in hnnd paid, the receipt whereof he dotb
hereby acknowledge, the aaid Richard Taylor,
as executor and trustee as aforesaid, hath irrant-
ed, bargained,' sold, aliened and eontlrmed,
and f>y these preaenta doth grant, bar^in, sell,
alien and conflrm, to the aaid parlies of the
aaid second part, exeeptinz from the heira of
William Beard. Xancy C. and Sally Bywatera,
who have already sold and disposed of all
(heir right, title and inlereat in and to the
same, » eertaiii tract or parcel of land Iving and
PeteM *.
1636
Beau et ai. v. Eowam,
Ung In tlw GouDty of Jefferaon, on tli« Ohio
Kvcr, adjcnning the town of Louieville,
tainiiiK by eatimfttion, three thouFa:id acre:
Ua Mme more or lessi one thousand acre
which being the one-half of two thouBaad a
nitented by the King of Great Britain to Joliu
Connoli]', by patent bearing date the 16th day
of September, 1773; the other two thousand
Mtentwl to Charles D. WarnadofT, the patent
Muing date the day and year Itst mentioned,
wi bounded a* described in the aaid patents, as
will more fully appear on reference being had
thereto. A1k> all the unsold lots in the t
of LouisTille, consisting of twenty acre
ten acre lots, fire acre Tots, half cere lots, and
other lot* and parcels of ground, dueded ti
OoIoMel John Campbell; also, all the island ii
the eaid Kiver Ohio, near the said town of
LouisTilla, lately in the possession of Allen
Oampbelli ftlso all the ground and ferry at the
lower landing in Shippingport, together with
■U and singular the premises and appurtenances
thereunto belonging, or In any wise appertain-
ing; and all the estate, ri.siht, title, interest or
elum of him, the said Ki^^hard Taylor, of, in
or to the same — to have and to hold the aaid
land, lota, ialand, ferry, and all and singular
the appurtenances, to the said party of the
Mcond part, their heirs and asaigas, forever;
Hid the said Richard Taylor, for himself, his
keita, adminiatrators and assigns, the said estate
Above conveyed to the said parties of the second
SIO*] 'part, will forever defend against the
eUim or claims of alt and evsry person claiming
by or through him."
And also under a deed, executed by Joseph
Baud and others, of which the following '
eopj :
''This indenture, entered into thti 6th day of
April, 1B26, between Joseph Beard, of the one
part, and Henry Beard, Lawrence Daley, and
Ann, his wife; Francis M'Lear and Sarah, his
wife; Charles M'Lear and Isabella, his wife,
and Joseph M. Beard, witnesseth, that, for and
in eonsideration of the natural love and alTec-
tion which the said party of the first part bears
towmrds his children, the parties of the second
part, and for the farther consideration of one
Mllar in hand, paid to him by the said parties
of the second, he doth hereby give, alien, sell,
convey and assi^^ to the said [nrties of the
aecood part, all his right, title, claim and inter-
eat, in and to the estate of Colonel John Camp-
bdl. deceased, in the counties of JelTeraon and
Shelby, in State aforesaid, for which s-^i:s
about to be commenced by the heirs of
Gkaipbell, of which said Joseph is one, for and
In eonsideration of which the parties of the
aamod part hereby bind themselves to pay that
part of the expenses of said suits which will
fall on said Joseph in the prosecution thereof."
Tbe title of the tenant, the defendant in error,
waa derived under the will of John Campbell,
and under the following conveyances: a deed
from Sarah Beard the sister of John Campbell,
the testatw, ta Forfunatiia Cosby, executed on
the 7th of July, 1806; and other mesne convev-
aaee*, the last of which was from William
lytle to the tenant and defendant, executed on
tlM 17th of February, 1822.
b January or February, 1800, Allen Camp-
bdl waa put into possession of the whole land-
ed eatate of John Oampbell, davis94 to him,
• lb «iL
and which was within five mtles of the mAnth
of Bear Grass, by Richard Taylor, one of the
e-ceciitore of John Campbell's will. When the
lands nere surrcnilercd to him, and he was put
into possession of the same, it was ns the owner
and proprietor thereof, in fee, as devisee under
the will of his half-brother, John Campbell.
He continued to occupy the same until his
death, claiming it as his own, and occasionally
selling various parts thereof. After the death of
Robert Campbell, Sarah Beard, as tbe heir of Al-
len Campbell as to 'one moiety, and heir [*S11
of Robert Campbell of another moiety, claimed
tbe whole estate.
On the trial in the Circuit Court, the de
mandants prayed tbe court to instruct the jury
that unless they tind from the evidence that the
surviving trustees of Colonel Campbell's will
conveyed by deed the land in contest to Allen
Campbell, that the law is for the demandants.
That, unless they find from the evidence that
Allen Campbell was naturalized according to
the lawa of the United States, that the law is
with the demandaota.
That from the facts agreed, and the evidence
offered, the law is for the demandants, and they
ought to find accordingly.
The court refused to give the instructions a*
prayed, and the defendant moved the following
instructions to the jury, which were given;
That the premises in question passed in fee
to Allen Campbell, the half-brother of John
Campbell, under his will, and at tbe death of
said Allen passed, by descent, from him to
Robert Campbell and Sarah Beird, and then
from him to her; provided' the jury be-
lieved from the evidence, Irt. That aaid John
Campbell was a cFtireo of the United States,
and died in October, 1789, and had never been
married. 2d. That said Allen Campbell cama
to the State of Kentucky in December, 17BU,
and continued to reside therein until Septem-
ber, 1S04, and then died intestate, and had
ucver been married. 3d. That said Robert
Campbell was a citizen of the United States,
and Wlf-brotber of the said Allen; that said
Sarah Beard was half-sister of said Allen, aod
came to Kentucky in October, 1800, and con-
tinued to reside therein until the death of said
Allen; that said Robert Campbell died in
August, I80S, intestate, and had never been
married; and that said Sarah Beard was tbe
aiater of the said Robert Campbell.
The jury found tbe follosving verdict, on
which the court gave a judgment for the de-
fendant; "We, the jury, find that the tenant
has more right to hold the tenement as he now
holds it in the written count mentioned, than
the demandants to have it as they now do-
mand it."
The plaintiffs took a bill of exceptions and
sued out this writ of error.
Tbe case was argued by Mr. Peters, with
whom was Mr. 'Loughborough, for the [*8ia
nlnintilTs in error, and by Mr. Hardin and Mr.
Serge.-.nt for the defendnnt.
For the plaintifTs in error, it was eontendedt
1. TliJt tlii: title to the land in controversy
[uiEscd by the will of John Campbell, in fee, to
the trustees, and the «urvivors of them named
in said will, and so rrmaiTieil until the deed of
R, Taylor, trustee to Rrsrd. was made.
i. Thftt at the making of tbe said deed, the
lat
sia
buiVEMs CouKT OK XHX Uritbo Statu.
ItU
title to so mucli of the utid land devised by J.
Cunpbell M had not been dispospd of by Allen
Campbell, waa in Taylor, the surviving tniatee.
3. That the said deed of Taylor, trustee to
Beard and others, waa in due performance of
the trust created by the will, and that the title
of J. Campbell paaaed by it to the grantees.
4. That the Circuit Court erred in not giving
the instnictioai moved by the demandanti.
0. That it erred in giving thoae moved by
the tenant.
For the defendant, It waa contended:
1. That taking the whole nill of John Camp-
bill together, it is evident and manifest that alt
his landed estate, within five miles of Bear
Gras!>, was intended for Allen Campbell; and
to save it from forfeiture, as he was an alien
when he made his will and codicil, he invested
tt in trustees.
E. That Alien Campbell became qu all fled
under the atatutea of Kentucky to take and
hold real estate, accepted the devise, claimed
the land in dispute, lived on it, used it, and
sold part of it.
3. The consent of the executor was not nec-
essary to perfect the title of Allen Campbell,
and if it was, the executor did consent.
4. As soon as Allen Campbell became quali-
fied to take and bold real estate in Kentuckv,
as he did on the 18th of December, 1802, that
instant he became vested with the title, in fee,
as an executory devise, without a deed.
6. If Allen Campbell took tlie property as an
executory devise, or by a release from the
trustees, then, ,od his death, Robert Campbell
and Sarah Beard, inherited esch a moiety, and
when Robert Campbell died in 1805, Sarah
SIS*] Beard betrame 'seized of the whole fee,
and conveyed it to Fortunatus Cosby in 1808.
e. The title of the demandants is defective,
because it is derived under a deed from Richard
Taylor, who was not a trustee under the will
of John Campbell, but was an executor.
7. When the conveyance was made by Tay.
lor, the defendant was in adverse possession of
the land.
B. The demandants cannot recover in a writ
of ripht. Pome of them have, on their own
showing, no title at all; and if others have a
title, it is not a jnint title with some of the de-
mandants; nnd other persons, if any of the
demandants have title, who also have title, are
omitted in the suit, although they are joint
tenants with the demandants in the writ; and
a joint ten.int cannot rpeover his interest unleai
all his co-joint tenants are joined in the writ.
9. In k writ of ri){ht the demnndnnt may re-
cover less than what he counts for. but it is
leas sa to quantity, and not different in the na-
ture of his tillei for if he could, then the ruTe
that the proof must afrree with the stntement
would be defeated; which would not be the
-ease when he recovered less in qiinntity; thi«
la the distinction In almost every form of
Mr. Justice Thompson delivered the opinion
-of the court:
This cause comes up on a writ of error from
the Circuit Court of the United States for the
District of Kentucky.
It is a writ of ripht for the recovery of a piece
or tract of lajid, the title to which it admitted
X4*
to hava bean duly and legally vetted la Mta
Campbell. Both parlies claim under the will
of John Campbell, as the source of title.
The demandants claim under a deed from
Richitrd Taylor, the surviving executor of
John Campbell, bearing date the 21st of April,
1B26, to Joseph Beard, Elizabeth Megowan,
and the heirs of William Beard. The tenant
claims under a devise in the will of John
Campbell; and the deciaion of the case de-
pends mainly upon the construction to be
given to this devise.
The evidence in the cause being closed, each
of the parties moved the court for inslructioua
to the jury. The demandants prayed the court
to instruct the jury that unless they find front
the evidence that the surviving trustee of
Colonel Campbell's will Conveyed by 1*814
deed the land in contest to Allen Campbell, thf
law is for the demandants.
That unless they And, from the evidence,
that Alien Campbell was naturalized, accord-
ing to the laws of the United SUtes, that tbe
law is with the demandants.
That from the facts agreed, and theevidence
offered, the law is for the demnndants, and
that they ought to find accordinfly.
These instructions the court refused to give;
but, on the prayer of the tenant, gave the fol-
That the premises in question passed in fee
to Allen Campbell, the half-brolher of John
Campbell, under tlie will, and at the death of
the said Allen, passed by descent from him to
Robert Camp1>ell and i<arah Beard, and from
him, Robert Campbell, to her, Sarnh Beard;
provided the jury believed, I. Tluit John
Campbell was a citi!-en of the Uniled States,
and died in October, 17110, anil had never Iwen
married. 2. That the said Allen Campbell
come to the State of Kentu-ky, in Derember.
17Bfl, and continued to reside therein until
September, l£IM, and then died intestate, and
had never been married. 3. That the aaid
[Robert Campbell was a citizen of the United
States, and half-brother of the said Allen; that
Sarah Beard was half-sister nf the nnid Allen,
and came to Kentucky in Ocrnber, 1800; and
continued to reside therein until the death of
the said Allen; that the said Robert Campbell
died in August, 1805, inteslale. and has never
been married; and that the said ^arah Beard
was the sister of the said Robert Campliell.
The mateHal facU in this case are not at all
drawn in question. They are agreed upon by
a stipulation contained in the record. And we
must at all events assume, for the purpose of
the present decision, that the jury have found
all tlie facts, hypotlicticaMy put by thecourtin
the instruction given to them; and upon the
aasumplion of which the court int^trurted the
jury thnt, in point of law, the dcmflndanta
were not entitled to recover: and whether thia
instruction was correct, is the question now be-
fore the court.
Upon the argument here, several objectlona
have been mode to the right of the demandanta
to recover in this action, claiming, as they do,
dilTerent titles, which cannot, as is alleged, be
set up under a joint action in this manner.
This, however, is 'rather matter of [*3ia
form; and as the case is before us on the mer-
its, ui'i MB Men tuliy Jirsued, ** pa^^ hy thin
l>el«ra Sl
IfiU
r u. », KoWAR.
n$
obJacticM witltvut itopping to tnqiilre wfaetfaer
it wa« well founded or not.
The clause in the will of John C»mphel1, up-
on which the right to the luid In question Ae-
penda, ia aa followa:
"And if within that time, my laid half-
brother, Allen Campbell, ehall become a citizcD
of the United Statea, or be otherwise qualified
by law to take and hold real estate within "
Bane, I then direct that my Mud trustees,
the survivor la ■urrivors of them, shall convey
t« him, my said half-brother, Allen Campbell,
hia heirs or assigns, in fee-simple, all the lands
hereinbefore described in this devise. But if
my said half-brother shall not, within the tlmi
•foresaid, become a cititen as aforesaid, I then
direct that my said trustees, or the sur-
vivor or survivors of them, sliall sell and dia-
poee of the said lands, hereby directed to
be conveyed to him, on two years' credit; with
interest from the dete, to be paid annually.
And the money and interest arising from such
•ale, to be transmitted to my said half-brother,
to whom I give and bequeath the same."
The testator then provides for the disposition
of these lands and the proceeds thereof, in c--
his said half-brother shall die before the expi
tion of tbe aforesaid term of five years after hie
arrival at the age of twenty-one years; and
then adda the following clause:
"But should my said half-brother become a
citiien of the United States of America, or be
nilierwise qualified to hold real estate within
tie same before hi» death, it is then my
Jeaire that he ebsll have the sole and sbsolute
disposal of all the estate hereinbefore devised
and bequeathed to him, notwithstanding be
may not have obtained deeds therefor froir
my aaid tnietees."
It is contended, on the part of the demand
sDts, that under this will, the legal estate of
the land in question is vested in the executors
and trustees; and that Allen Campbell did not
taken any legal estate under the will, and could
■ot acquire it, ezecpt by deed from the trustees
or the survivor of them. And they contend
that Richard Taylor was such survivor; and
they claim under the deed from him of the
list of April, IKS- But If Richard Taylor
had no authority to convey this land, the de-
mandants fail entirely to show any title what-
■ !•*} ever in the 'land. His authority to
convey the land lies at the foundation of the
right set up by them.
Richard Taylor ia not named as one of the
trustees. The trustees named are, James Mul-
Unn, Charles Simms, William Elliot, and
niilip Ross, who are alao appointed e.xecutors,
aad to whom the testator devises hia estate,
both real and personal, in trust for the usee and
purposes provided and declared In his will.
It IB true that be afterwards, tn a codicil,
BBinee Richard Taylor aa one of his executors.
But tbe estate was vested in the other ex
eentors named, as trustees; and Taylor, in hia
capacity merely as executor, acquired no title
to the land, or any authority to sell it.
But it V
t the c
this point, as it is very clear that, under the
will of John Campbell, hia half-brother, Allen
Ckmpbell, totA an estate in fee-simple, as en
•ueutorj ini—, witbout »aj dead fram thi
The intention of tha teatator In thts reapeet
cannot be mistaken. Alien Campbell was in
alien, and wsa not, or might not be qualified
to tske and hold real estate. The title was ac-
cordingly veeted in trustees, with directiona to
convey the aame to him wheh he ahotild be-
come qualifled by law to take and hold the
same. And If be should nol, within a epecilled
time, become qiisUried to tnke and hold real
eetate, the trustees are direrted to sell the land
and transmit the avails thereof to the said Allen
Campbell; thus providing for all supposed eon*
tingencies with respect Co the aitiiaiion of the
devisee, and to enable him to receive the bene-
lit of the deviae. But that his ri}.rht and title
to this estate might not at nil dcjiend upon the
trustees, he devisee the land directly to the said
Allen Campbell, if he should at any time be-
fore hia death become a citizen of the Unitc-d
States, or be otherwiae qualified to hold real
estate; notwilhstanding, he may not have Ob-
tained deeds therefor from said trustees.
This was a good e:iceutory deviae, depending
on the contingency of hia bci^oming a citizen of
the United Statea or otherniae quallRnd to hold
real estate. This confinpency waa not too re-
mote. It must ne^essarity, not only from the
nature of the contingency, but by express lim-
itation in the deviae, h.ippcn in the lifetime of
the devisee, if ever. And upnn the iiappening of
this contingency, there can he no •doubt ['317
but the devisee took nn e<:taCe in fee. The
words in the will are amply snOiJent to pass
an estate in fee. And the only remaining in-
3uiry is, whellier Allen Campbell, before his
eath, became qualified to take and bold real
estate in tbe State of Kentucky. And this will
depend upon the Act of the l.e,i.'i»^latr.re of
that State, passed on the I8II1 of December,
1800, which is ss follows: "Whereas, hj thn
laws now in force in this Commonwealth, aliens
cannot hold lands therein, and whereas it is
considered the true interest of this Slate that
such prohibitions be done away. Be it there-
fore enucted, etc., that any alien, other than
alien enemies, who shall have actually resided
within thia Commonwealth two years, slialt,
during the continuance of his res idenee herein,
after the aaid period, be enaliltd to hold, re-
ceive and pass any right, title or interest, to
any lands or other estate known, within this
Commonwealth, in the same manner, and un-
der the aame regulations, as the citiKciis of thia
State may lawfully do-" 2 Littetl's Laws, 400.
The evidence in the record shows, and it is
I found by the jury that Alien Campbell
ime to the State of Kentucky in Decem-
ber, 171)0, and continued to reside therein until
leptember. 1804, when he died intestate, never
having been married. Tt is argued, on the part
nf the demandants, that thia law only embiacea
a who ahall have resided within the State
yeara before the passing of the act, and
does not, therefore, reach the case of Allen
Campbell.
This is certainly too narrow an interpretation
of this law to meet the obvious intention of the
r^egialature, even admitting that such is the
•trict grammiitiral construction.
The prenmb'e in the act may be resorted to
o aid in the construction of the enacting clause,
vhen any ambiguity exists. That preamble
evidently shows that the intention of th< Laj^-
817
BOPBEUB COUBT or TRK UKmD Statcs.
Utnre was to nuke a general provision for tc-
moving the diiabilitf of klieos to hold real
eatate, and this, founded upon State policj,
doubtlcBB tor the purpose of encouraging the
Mttlement of the country; and this object
would be in ■ great measure defeated b; rc-
Btricting the act to aliena who ehall have re-
aidcd two years in the State before the passing
of the act. The eondition upon which aliene
are p'aced on the same footing with citizens,
with respect to the right of holding and
SIS*] 'disposing of land, is a two years'
residence within the State; and the full effect
and benefit of the act, and the clear intention
of the Legislature, require a construction which
gives to it a prospective as well as retrospective
application. And, underthis construction, Allen
Campbell became qualiSed to take and hold
the title to the land in question, and pass the
same, in the same Euanner as if he had been a
citizen of the State. No constitutional objec-
tion can be made to this act. It does not pro-
fess to naturalize aliens. It is not necessary
that tliey should be made citir.cns in order to
hold and pass real estate, and the conilition
upon which this may be done is a matter rest-
ing entirely with the State Legislature. We
are, accordingly, unanimously of opinion that
the judgment of the Circuit Court i* correct,
•od It ia accordingly afBrmed.
This cause came on to be heard on the tran-
■cript of the record from the Circuit Court of
the United States for the District of Kentucky,
and was argued by counsel; on consideration
whereof, it is adjudged and orilered that the
judgment of the said Circuit Court in this cause
M, and the same is hereby allirmed with costs.
»10*] *THE UNITED STATES. Plaintiffs in
WILLIAM L. ROOESUN.
Assigninpnt of claim B):^i;i9t United States —
set-off', claim for unliquidated damages not
sdmissible as — rule as to set-off in questions
arising under Inn-s of United Statci not
affected by local law; nn iiaaj^e — amount to be
paid ascertained if possible in mode Uxed by
contract.
E roper aceoDUtlnz oflleer ot the fovtmincBt wfe*
u refused to allow It. be mav aef up tbe claim as
suit brouebt aaalDBt talm, tor an; bal-
ley claimed to be due by tbe govora-
. credit IQ s suit broueh
«y claime^
_ __, . ben the v ,
of the defeDdant belore the trial, or. Irom the
peculiar clrcumsIsnceB of the cast, a presenUtlon
of tbe claim to (he treasury could not 1m required,
tbe oRBi't miy be submnted to the bcIIoh of tba
Jury. But a claim for uollquldated dania;(« can-
not be pleaded b; ws; of set-off la an action be-
tween iDdlvldualB, and Ibc eitmc rule KOTema lu
an BCtion brought by the goTemment.
VVberR the parties In their ccintiact fix on a ecr-
taih mode b; which the amount to be paid shall be
UL-ei'tnlned. the part]> tbHC seeks an enforcement
ccldent, he la unable b
arj craascrlr
era!. The dpfendi
OD the United Hie
tBBlRtant Unputy Qua
eUlcolo. with I
to the proper
fusod. Held;
itates.
The rnlo as
sively under t
be Influenred
I to the Uoltea
'arm id Appala-
D was presented
3onB. elr. This cli
The dcfendnnt was not eniitieo i
set-oD to tbe dslm of the Unite
0 set off, !a qurallana arlBlng eicli
> iBWi of the Uolted Stnte«. cannc
r SO)- local law or ugo;.T. *be rul
of tbe courts of the TnlH^ Striti-i
When a defendant baa. In hla own rleht.
table claim atrslnst tbe lovemmpnl for services
Mndersd or otherwise, tod has preacnted It to the
141
IN error to the District Court of the United
States for the Eastern District of Louisiana.
The United States on tbe 10th of January,
1B22, instituted a suit, by petition, in the Dis-
trict Court of the United States in Louisiana,
against the defendant, William L. Robeson,
late Assistant Deputy- Quartermaster -General in
the army of the United States; claiming to re-
cover the sum of $2,663.61 for tbe balance of
his account, as such oflicer, as settled and ex-
amined, adjusted, admitted and certified at said
department.
'To this petition and the citation is- [*sav
sued thereon, the defendant answered and
pleaded that the United States were iudebteil
to him in the sum of $3,000 for work, labor.
attendance, etc., bestowed by him in and about
the business of the United States, and for the
United States, at their request, and for mate-
rials and necessary things by him, before the
time of action, bought, found and employed,
in and about the said work and labor; for goods
sold and delivered, and for money laid out anJ
expanded for the United States, at their re-
quest; for monpy due and owing to him, and
interest thereon; which sums of money exceed
the sum claimed by the United States from
him; and out of which sum so claimed he is
willing; and oflers to set oB and allow to the
United States the full amount of their claim.
On the same day this answer and plea were
filed, tlie 2lBt January, 1B22, William L. Robe-
son tiled an allidavit sworn to and subscribed
in open court, stating that he was equitably en-
titled to credits which had been submitted, pre-
viously to the commencement of the suit, to th«
accounting ofRcers of the treasury and rejected;
that the credits are as follows, viz., the sum of
$30 for transportation of otficcrs to Baton
Rouge and back to New Orleans, and an amount
of $39 for transportation of officers from Paaa
Christianna to New Orleans. That a claim
of $364.50 for transportation of contractors'
stores taken from the wreck of the schooner
Italian, and delivered at Appalachieola in April,
1S18; a claim for demurrage at Mobile Point,
of tbe schooner Experiment, in a voyage from
New Orleans to Appalachieola, in 1B18, to wit,
$330, were presented to the Quartermaater-Gen-
eral's department and returned-
Issue being joined, and the cause having
been brought to trial in December, 182S, a ver-
dict was found for the plaintllT for a leaa
I amount than the balance of the aocount stated
fsK Umitd Statbi T. BOBEMm,
■t (fce TreMwrj o* (h* United SUtei. the Ter-
diet boinfc for tl.SSe.ll, instead of $2,663.61.
Tliifl did'ercnce resultrd from allowances made
by the jury, under the ruling and directic
the tourt i^pon varioin pirints which aroE
the trial; in reaped to which several billa of
except ion were filed bjr the eounael of the
United KlateB.
ThP firdt bill of exceptions stated that the de-
S31*] fendant gave "in evident.-e certain depo-
■Jtions to prove the amount of loss and damage
claimed by Forsyth and Walton «nd Breedlove,
ow^frs of a certain schooner called the Bupcri-
ment. to be due to them by the United States,
together with an assignment by the said own-
ers to (he defrnilnnt, for the cansideration of
S-iOn, of the whole of the amount so claimed
by them under a charter of the Experiment to
the defendant, an aesiatant deputy -quartet'
master -general, to proceed from New Orleans
to Appalachicola with stores; their claim being
for the transportation by the Experiment of
prorisions and stores belonging to the United
States, Inken from the wrerk of a schooner,
and carriad to Appalachicola, amounting to
•3C4.S0, for demurrage of the achooner $330
and for the loss of a cable and anchor $226.20:
to^^ether, $niJ0.70.
The pldinlilTi! prayed the court to instruct the
jury that the defendant could not set off against
the demand of the United Slates a greater sur
than that expreseot as the consideralion of tli
Irsnefi-r, viz., 8500. The dc'murrage claimed
was for detention of the schooner at Mobile
I'oint; and he proved by the charter party the
tifiUt of the charterers to the same, and his
ri^t under tlic assignment thereof; and offered
ei idenee of the detention of the vessel at Mobile
Point.
The plaintiffs prayed the court to instruct
the jury, that evidence of a detention at Mobile
I'oiut could not sustain a claim for damage un
der the charter-party, and that under the plead
in;: and treasury report, no ofleet could be sus
ti'ined for a detention at Mobile Point; hut tin
miirt refused so to instruct, and to these re
as-iynmcnt from the owners of the schooner
K\|wriment, mentioned in the first bill.
CIsintilTs objerled to its admission in evidence,
p^ause It bad been received by the defendant
after he hnd ceased to be in the employ of thi
United Stales, and because not offered as proof
of payment of a debt due from the Uniteil
Ijtatea, but as evidence of the purchase of s
elalni against the United States, which could
not be aet off in this action. The eottrt orer-
rnled theae objection! and the plaiotiSa ax-
The other hills of exception are not inserted.
at tbe7 were not noticed In the opinion of the
3*2*] •The ease was submitted to the court
by Mr. BntlCT, Attorney -General, on a printed
ari^ment. No counsel appeared for the de-
fendant in error.
ft wsa contended that the judgment of the
fourt below was erroneous, and ought to be re-
rer^^ for the following reasons:
■"■i.^ ■•1-fmI d""i~ions of the court. In relation
to tiM offaeta claimed by the defendant under
III* ■■-i-.'Dineat tioa tbe owaer* of the Sxpoi-
• Uma.
ment, as speciAed !n the flrmt, thtrd and fourth
bills of exceptions, were erroneoua.
There is no act of Congress delining, genei-
oily, the law of set-off. The third and fourlli
sections of the Act of the 3d of March, 1707,
{Story, 4B4), imply that persons sued as dcLilors
at the treasury mi^ht be entitled, in certain
cases, to set off claims for credits rejected by
the accounting ofDcers ; but they do not attempt
to deflno the nature of those credits. They,
however, impose the following rettricKons on
the right of set-off, that is to ssy, first, they re-
quire the defendant to make oath that he ii
equitably entitled to credits whii'h had been
previously presented to and rejected by the ac-
counting officer. And second, they forbid the
allowance of any claims for credits except such
as shall have been so ^iresented and rejected;
unless the defendant shall be in posaession of
vouchers at the trial, not before in his power,
etc. In all other respects, the laws and modes
of proceeding on the subject of set-off in the
State in which the trial is had, must, under the
judicial and process acts, be oliscrvcd «■: rules
of decisions; "except when the Constitution,
treaties, or statutes of the United Stales shall
otherwise require or provide." Judicial Act of
l7Bn, sec. 34, 1 Story, B7.
The claim for detention at Mobile Point not
being especially provided for in the charter^
party, could not hs sustained as a claim for lie-
raurrage; it was a mora unliquidated claim for
damat^es. Such a claim could not, under the
law of Louisiana, be set off. C^vil Code o(
ISOa, p. 298, art. IQl; Civil Code of IS16, p.
7IR, art. 2205| T Martin, CIS.
It is not pretended that Robeson paid to the
owners of the schooner the moneys he desired
to set off. In the execution of his duty as dis-
bursing officer. If they had been so puid in
good faith, and for valid claims, they might
have been proper credits, because they relaltd
to the same general appropriation. Act of
March 2d, 1800; 2 Story, 1122, sec. 1. But
the credit ■claimed by the party la for 1*32:1
in out&tanding demand, bought up by this
(jflicer, for a gross sum. The second and third
sections of the Act of the 31st of January,
ISI3 [3 Story, 1878), by necessary impiicntion,
forliid any disbursing oflicer to apply public
money remaining in his hands to any such pur-
pose; and require the prompt payment to the
treasury of alt moneys remaining in his hands,
except such as he may be authorized to reln'n
for salsry, pay or emolument.
This attempt of the defendant is equally for-
bidden by the general law of principal and
ngent, aa universally understood. An a^ent in-
trusted with moneya to be disbursed for his
principal, will not be permitted to pay off hii
firincipat's debts, without authority, or to piir-
'hase up claims against him, for the purpose of
olTsetting such debts or claims in an action
against him for the moneys remaining in his
hands. Middletown and Harriaburg Turnpike
Company r. Watson's Administratrix, 1 Rawte,
130. The same principle is recognired in the
aw of Louisiana. Civil Code of 1808. p. 424,
irt. 10. 24, 26, 29; Civil Code of 1825. p. 039,
irt. 2074 to 2094, p. S42, art. 2090 to 2004. And
without reference to the character of the de-
lendant as an agent, the courts of tiouisidna
will not Allow » defendant U> set off money puid
SuPUM ■ Coint or THt UmiXD SrAna.
by htm on teeoimt of « drbt due from the
ptainliff to li third pemoii, unlcBo it be ahown
to h&ve been Ensile kt ptninlilT'n rrqileat. Rog-
ers's Hcirn V. Bj-num, 9 Klartin, 62. It is uu-
necessary to enlarge on the injitrioiis conw-
qticnccs which would probably follow the &1-
loivance, in cases of thia nature, of the course
adopted by the dcfendaiit.
At all events, tlie defendant ahould only have
been allowed !o set ofT the amount actually paid
liy him; do rule being better established, or
more important, in reference to all cases of a
Hdur.iaiy nature, tlian that which denies to «
trustee the benefit of any profit in a da in pur-
chasing up claims against the trust estate. Vaji
Horn T. Fonda, 6 Johns. Ch. Rep. 388.
Mr. Justice BTLeaD delivered the opinion of
the court:
The pUintiS's brought tlirir adioii s^ainsl
the defendant, in the District L'ouit of Louisi-
ana, to recover a balance of public money which
remained in his hands i^ late assistant deputy-
quartermofitcT-genernl. The pleadings being
made up. the cause wan suijmitted to a jury.
S21*] t>Uo leudeied u verdict fcir u 'sum less
by Sl.OOT tlian the reported balance at the
Treasury Ucpartnient.
Tills diiTeriin-e was produced by certain dO'
cisions of the cuurt. on the trial, and to which
exetptionil were tukcn. And these exceptions
are now brought before this couit by a writ of
In the first bill of eiecptions, it appears the
difenJniit gave in evidence certain depositions,
to piove llie amount of loss and damage sus-
tained by the owners of the schuoner E.\peri-
iiieut, on a voyage from New Orleana to Ap-
palnchi>-ola, with troops imd stores for the gov-
crnuKnii. of the United KiutLS; and also a cer-
tain iiistvjnienl, by nliich the owners of the
said sehooner E.\pcriincnt transferred to the
defonduut their claima for compensation upon
the UnltL'd St.^tes, etc.
And in the thii'd bill of exceptions, the dis-
trict alLorncj pmy'd the cojrt to instruct the
juiy that the above claim could not be pleaded
oy thu dutciidbiit iis a bCt-oIT iu this actiou;
whiidi pra;.^-r v,ai \.{..^-:..
The first question which ariaes on these ex-
ceptions is whetli^r a claim which haa been
traiiaferrcd to the di-fcnilant, forms a proper
Bubjeet of set-olT, under the ucts of Congress, to
a demand of the government. If this question
■hnll l>e decided in the negative, it will not be
necessary to Inquire whether the claim in itself
constitutes a proper item of set-off. It teems
to have been presented to the proper account-
ing officer of the government as % credit, and
that he refused to allow it.
This is a question which arises exclusively
under the acts of Congresa, and no local law or
uaage can have any inlluenee upon it. The
rule as to let-olT in such casea must be uniform
in the different States, for It constitutes the law
of tba court! of the United States, in a matter
which relates to the federal government.
Where a defendant has In his own right an
equitable cinim agninst the government, for
■erricea rendi'reil or otherwise, and has pre
sented it to the proper accounting ofhcer of the
government, who has refused to allow it, ho
inav aet up tbe claim aa » credit on » writ
t44
brought against him, for any balance of money
claimed to be due by the government. And
'where the vouehers were not in the [*S25
power of the defendant Iicfore tlie trial, or,
from the peculiar ciii^umstances of the case, a
presentation of the claim to the treasury could
not be required, the otTsct mnj be submitted
for the action of the jury. Hut a claim for un-
liquidated damages cannot be pleaded by wny
of a set-olT in an action between individuals,
and the same rule govern* in an action brought
by the government.
There is uo law of Congress which authoriz.-^
the assignment of claims on the United States;
and it ii presumed if such assignment is sanc-
tioned by the Treasury Department, it is only
viewed as an authority to receive the money,
and not as vesting in the assignee a legal ri^'.it.
Out wliatever may be the usage of the Trras-
My Dc;iait;n':tJt on tins subject, it is clear thot
duch un uaaignmcnt, us between indivijiinls, on
common law principles, cannot be repiidrd aa
transferring to the assignee a rii;lit to bring an
action to law, on the account, in liis own name;
or to plead it, by way of sct-olT. to an action
brought against him, eituur by an injmdual or
the goverument.
The claim set up by the defendant as a aet
off in this case, may have been fuirty ohl.iin.d;
and. indeed, auch is the pie3,ii,>|iii.in, in thi-
absence of all evidence going to iintHa'-h tbe
asiiigninent or the coniidoiatlon oii nlili-li it
was mddc; but the assignee, not holding the
legal right, cannot astrert the claim, as a s^t-ulT.
in this action.
If any individual who holds in his Innil)' pub-
lic money, could defend himself n^^siitsL on ac-
tion brought by Die governmc-it, by puri-hn-
ing claims ege.in't it, he mi 'iit Ep>i-ii1«te on
such claims to almo'it any eficut. Thia prne-
lice would be as impolitic for the government
as it would be iniunous to individvidn.
The practice of the -stute cuiirts, uiikh haa
Wen adopted under the Act of dmiic^'- of
ISU for the courts of tlie UniieJ :.'l.ii.i,n iu
■.ideiutiou". Tot if ii\.crc milae'io^;l.ii^.1l tliut
Wilder Ihc la«.s t.i tliuL i:.l.;le jn .v n „.-,..,nl U
count by way of act-olf, ft could nut be done in
the present rase.
The prini-iptes involved in this cane arc eon-
neclcd with the flseal action of tlie government,
and they cannot depend either upon the loiwl
practice or law of any State.
'The second bill of exceptions states ['320
that ''on the trial of this cauKe a ccrlain ch;ir-
icrpnrty or instrument maiked B, etc., and
by «iii<h Ihe stminloat Tennes?iee was chnr-
tereJ for the couveyi-nce of a detachnieut of
ti'oi'ps under the rommnnd Of Cohmcl Ar-
buckle, was offered in cvidenee; that by said
charter-party it was agreed that if a larger
r|iiantity of baggage and stores should b« car-
ried in said boat thnn »us stipulated in said
"liarler-party, thnt freight should be paid on
the Esms, on tbe production of the certificate
of the said commanding ofiiier, Colonel Ar-
biiik'c. The defendant offered in evidence th«
.l(]toiition of witnesses to prove the carrying,
by the said ateaniboat TeniieFiec. of a greater
quantity of baggaje and atorea than tUnt tlipu-
I'eiei'* 9.
I n AI. T, HAUaHTON.
n$
ktcd In tb* ebuler- party; to ths Introduction
at which tattimoay the district attorney ob-
jected; because, under the terms of the said
charter -party, do other evidence than the cer-
ti&cate *t the stud Colonel Arbuckle could be
reed Ted to establish the claim to surplus
freight; but the court orerruled the objection,
•sd admitted the eridenca.*
bi the charter-party it Is agreed that Bieed'
lora, Bradford and Robeson should tranaport,
nnsToidabla acddenti excepted, a part of the
Serenth Regiment of Infantry, under the com-
mand of Colonel M. Arbuckle, and their bag-
gtg^ together with a quantitj' of stores, not to
exceed the bullc of eight hundred barreii, to the
Krt of Arkanias, etc. "For the true and faitfa-
I performance of the above, certificate* of
which to be given by Colonel M. Arbuckle, or
officer commanding, the party of the second
part binds himself, as agent of the United
States to pay," etc.
And on the charter-party ia indorsed, "it ii
nnderatood tiiat, for all stores, etc., above the
qnaatity Epecilied, the lame rate shall be paid,
Tm producing duplicate specified eertiflcates
the comnianding officer.
The fnltowiog certificate of Colonel Arbuckle
waa indorsed on the charter-party. "I certify,
that Coptain A. B. Bradford did, In compliance
with the fore;;oinE agreement, transport from
New Orleans to this place, a part of the Seventh
Regiment of Infantry, amounting to one hun-
dred and ninety-nine, with a suitable number
of officers and their baggage; and that he did
also transport thirty men of the Seventh Regi-
ment, not belonging to the Arkansas command.
SSI*] from Xew Orleans to the 'mouth of
Red River. The boat waa detained at Baton
Rouge about nine hours, and at the mouth of
Red River about twenty hours. Captain Brad'
ford furnished, for the use of the troops, six
eorda of wood, (or which he ia entitled to com'
pensation."
As it appears in the record that payment baa
bren made for tlie services covered by the
above certificate, the evidence which waa ad-
mitted to be given to the jury, it is presumed,
mnst have been to show the transportation of
tni/^t or men, In addition to that which is
eertified by Colonel Arbuckle. And the ques-
tion aa to the legality of this evidence is
It appears that the agent of the government
expressly stipulated to pay the money under
the contract, on the certiilcate of Colonel Ar-
buckle, or the ofGcer commanding the party.
And for any additional services, to those pro-
vided for in the contract, payment waa to be
made at the same rate, "upon nroducing dupli-
cate specified certiflcatea «f toe commanding
ofBeer-^
It does not appear that any excuse waa of-
fered why these certificates were not procured;
and tbe question is. whether the claimant, at
bia option, can entnblish his claim by other evi-
dence. Tbe contract is a law between the pnr-
tiea in this respect, as they expressly ajTree that
tl»e amount of the service shall be eslnblished
by the certificates of the commanding officer.
Gin it be established In any other manner, with-
out ahowing the Impracticability of obtaining
tlw eertificatest Is not this part of tbe cod-
■ I., ed.
tract as obligatory aa any other part of It; and
if so, is not the obtaining of the certiHcetcs a
condition precedent to the payment of the
money 1
Where the parties, in their contract, fix on a
certain mode by which the amount to be paid
shall be aacertained, as in the present case, the
party that seeks an enforcement of the agree-
ment must show that he hai done everything on
his part which could be done to carry it into
effect. He cannot compel the payment of the
amount claimed, unless he shall procure tha
kind of evidence required by the contract, or
show that by time or accident he is unable to
do so. And aa this waa not done by the de-
fendant in the District Court, no evidence to
prove the service, other than the certificatca,
should have been admitted by the court.
Had the defendant proved that application
had been made *to toe commanding ['xas
□flicer for the proper certiilcBteB, and that Iw
refused to give them, it would have been
proper to receive other evidence to establish
the claim.
Other exceptions were taken to the rulings
of the court in the course of the trial, but as
tliey relate to the assigned claim set up by the
defendant. It cannot be necesaary to consider
On the grounds that the District Court per-
mitted the assigned account to be given in
evidence by the defendant §Ji a set-olT, and
allowed, under the circumstances stated, other
evidence than the certificates of the command-
ing offieer to prove the transportation account,
the judgment below must be reversed, and tha
cause remanded for further proceedings.
RICHARD HAUOHTON.
Pleading— practice— luil— release of intolvenk
debtors in Ohio— State laws— authority of
Circuit Court to make rulea.
■IcslDBt I. Harris and C, Ilnrtla. nnd oliUlncd Judjt-
mciil HEslost them far $2,818 and coata. at Oeeem-
ber Term. Heuchtou became Bpcclaf ball In Ibis
sctlon, by recojtnliing, vli., that the dpfpudnnls In
(he Elation ihould par and sadalj tbe jinl^ment re-
cuBtodT oflhe marshal of the district of Ohio. In
Octobpr. 1831, a writ of capias sd RBtlit[iicleD<tuio
waa [SHued upon (he Jodprnent. and returned lo
Decpmbet Term. IS.tl, Ihiit the Harrlsa were not
round. Id Imuran ry. 18-11. C. Harris was dl*
chni'ccd from ImprlBanment lor all his debts onder
the Insolvent law of Oblo. J. Harris was Id like
manner dUchsrscd In Febrmry. 1832. In December,
NOTS.— Ball, whto e
principal ander Insolven
^Ipal. etc.
A Buretr on the bond of a public defaulter mai
flead his dlBcharge under tbe Bnokrunt Act td
841, In bnr ot an action b; the KoverDmcnt. Unit-
~ Btstea V. Davis. B McLean, ISA.
It the defendant neRlects to plead his dlscbarfS
In tniolTenc;, and Jndiment la entered In the siiTt.
14ft
BVTBBUB COUBT OF THE UkiICD STATES.
eadra the disch
Tht rule of c
□( J. >iicl C. lUr-
(dEIowi
'It t&e defenilaDl: on a caplBa dcwa □__ „.
dent appeaivQce tiall. be iball be committed to
prison to remain until dlschHrRod b; due cuuise of
law. But under neltber meane or nnal proceas
•hall Bnr Individual be bent In priaou who. under
tJM iDBolvcnt law ot tbe State, baa Cor aucb de-
mand been releai>ed from Imprlaonment." The
in demurrer, the CIrcull Court' gaxe' ludifment for
the defendant. The Judgment of the Circuit Court |
, but th.'j may
dulgence onl;. tbe appllcallon Is
of tbe court ; acd an eionorerur
on, except by waj of motion.
When tlie part; la, by tbe pra
: by I
mloatlon of the
Mplleable tbereti
Wbatevc
tbe I
SI , — - - -- -
ne mlea and principles, will ronatltule a dlo-
eliarse ot tbe liability of the special hall, muat be
deemi'd lududEd wKblu tbe purview of the Inatru-
ment, aa mucb aa If It nere expressly ntetcd.
By tbe rulee of tbe Circuit Court of Ohio adopt-
ed as early aa January ISOB. tbe liability ot ape-
ulal bail waa provtdtd tor aod limited, and It wna
declared that special ball may surrender their
principal at any time before or after Judgment
•gainst the principal, provided such surrender shall
be before a return of a scire faclaa eieiuted, or a
second scire facias returned nihil against (be boll.
And thl* in tact conatiluted a pnrt ot the law ot
(riven, the same barlDg been so enacted liy (he
Leslaiature. Thli act of the LenlBlatiire ot Ohio
was in force at tbe time of tbe paassKe ot the Act
of Congress ot the 19(b of May, ISlfS, regulaltng
(be process of the courts of the United States in
tbe new States, and must therefore be deemed na a
Grt ot the "modes of proceedlDf; In suits: and to
ve been adopted by It. so tbat tbe surrender of
830*] tbe prluclpar •within the time thus pre-
cst inrealiii to a csploa ad satin faciendum against
the prlDfipal, the ball Is "flied," In courts, actla«
professedly under the common law and tndepend-
cutly of statute. So much are the pj
the
debito ;
Id 'be'clra
aa uneonaiilonal dlar
mdered, there the bail arp entitled to relift l.y
atcrlog an eioncretuc without any BUircinHr.
nd. a fortiori, tbia doctrine will apply, when ttie
iw problhita f" '-- ■ '" '" ' " "
entitled ti
1 be la euilt'cd. ei
Inejs tuMy ejtabjlshel t6'at''»Cre tb*
e bad been
don am
ind practice of the
0 the regulB-
imary manner.
e Indulgence of the court, by giving then
render is P
rbere Is
B tbe party from beln^ ImpclBoued o
I, by the pOBltlve operation ot law,
t the I
e ot Ohio
part of the l^onI^ac
tbe obligation of t)
force against his p
State laws cam
powers ot the natu
her limit or afTect
efficacy ot such la'
Rtstrs depends uni
So tar aa they art
obligatory. Beyon
directly, by sulista
conSde the authorl
of the United Stai
State laws,
d' tbe coiirta
rned bT, tbe I'roceaa Act
■ 'ti.
13 1 y adopts tha
u.uurg u< L>.u.>;.;d1ni; In suits at
eiistlDg la the lilsbcat Statt
court, under ...
Included all the regulations ot the Stat
ball, and exemptions ot tbe party (ron
the court will not, on application ot bis ball, order
an eioneretur. Mechanics' Bank T. Haiard, B
Johns. S92\ Post v. Itlley, 18 Johns. M; Campbell
T. I'almer, 6 Cow. 596.
Tbe rule that where a defendant li discharged
DDder the Inanlvent act. the court will discharge
tbe ball OD motion. Is grounded on the Idea that an
actual surrender would be an idle ceremony, be-
cause tbe prlnrlpsl must be immediately liberated:
henever It Is shown that the defendnnt is not
ect to arrest, under the act to abolish imprls-
ent tor debtj or tbat^the defeiHI_aDt by a sulwe-
'ed Rusaell t!
,„„. lake, 22 Wend.
612; Dunham t. MBeomI>er, 0 Wend. 113.
After time for surrender has pnsacd. ball cannot
move to be eioneratefl on thegronnd that defend-
ant was not liable to arreat. Btever v. Somberger,
19 Wpnd. 121.
If the prlnclpsl is dead, the ball are entitled to
be dl)<charged; and thev have the riEht t
of tbe death of the nrlnrlnal. Olcott v. Lilly, 4
Johna. 4DT: and see White t. RIaks. 22 Wead. 812.
By the New York Code, ball are cioaerated be-
fore tha expiration ot tbe time to aoswer in »c.
14«
fendant, or by bis leL-al discharge from the o
tlon to render himseft amenable, or by his si
der to tbe sheriff. Code of Civil Pro. r--
Stark y. Hempatead, 6 Hqd. SOI ; Uills
■ - -, >..._ 207^
lent Is aischsrgL_
State where the debt was
ed. and has given special bnll. the court will dli-
charge the ball. Richardson t. UclDtyre. 4 Wash.
C. C. *12.
Where ball has lieen died before tbe discbarge
ot the principal under the insolvent laws, such dis-
cbarge will bnve no elTect on tbe liebtllty of tbe
bail. Lyon v. Auchlncloss. 12 Tot. 280; see Byrne
I. Carpenter. 1 Cranch C. C. 481 ; Bennett t. ilei-
ander, 1 Cranch C. C- BO: Bobbyshall T. Oppen-
hpimpr < Wash. C. C. S17.
if dlschar^ of principal In Insnlvpticy
Erfect of discharge of p ,._. ._ .„
ODder State lawa, Davis T. Marshall, 1 Ci
C. 1T3: Baugh T. Nolsnd, 2 Cranch C.
Burns T. Sim, 2 Cranch C. C. TS : Di
C. 2;
ard »
I C. C. 187 ; King T. Slmm. 2 Cranch C.
Andersons Cane, 2 Cranch C. C. 248;
V. GHlcii. .1 Cranch C. C. STB; CIsggeH
0 Cranch C. C. 88(1.
of discharge Id baDkniptcy. Bennett 1
r. 1 Cranch C. C. 90 : Ltngao t. B '
Cranch C. C. 112.
. Taytt
Bay ley, 1
Davidson
itltutionality'of ^Stata^ benkruptand
Whtat, 122.
12 Whra
Crownln-
a ei Ai, T. HAuaHiDir,
, oritr, by
tk» nrf proTlBioni ol tb« Act oC 18:^8, to mak#
■Mk ■ nilc, ta > ngulklEon or tbg proi^ectllDKi
OpoD Bnal proceu, to u to conrDrm tbe ssme to
tSiMC lavi of the Stale on tbe ume subject.
Tbe emtn of SIqiucb y. Crownlnshleld, 4 WbMt,
SOO; 4 CODd. Bep. 409. Uaioa t. Halle, l:£ Wheal.
Wtiett. 1 : e Cond! Rep. 1, 1'lie United Slates UhdIi
T. HBlitnid, 10 Wheat. SI ; S Good. Bep. -^2, cited.
EFUtOR to thg Circuit Court of the United
SUtea for tha District of Ohio.
On the 14th of Juna, 1830, the plaiatiffs,
dtisens knd reaidents of the SUte of New
York, coonDenced their action of aaaunpstt in
tha United SUtea Qrcuit Court for the Dis-
trict of Ohio, egaiost Joseph Harris and Cor-
neliuB V. llarriB, of the State of Ohio, and
r«covcred judgment against them at tbe De'
eember Term, 1S30, for (2,846.66.
In thia action against the Ilarrisea, tbe pres-
ent defendant, Haughtoo, became their special
baiL
On the 12th da}' of October, 1S31, a writ of
rapiaa ad satisfaciendum was issued against tlie
HarriEca, and returned to tbe December Term
of that year "not found."
On the 24th daj of December, 1S3Z, the
plaintiffs commenced their present action
against Hauglilon upon his recogni/.ance of
boil, returnable to the 1st day of Ma;, then
next. A declaration was filed in the usual
form, to which the defendant Aled several
pleoa, and among others the following, desig-
nated in the record as the 8th (tbe 4th, Gth, Gth,
and Tth being withdrawn), to wit:
"And tbe said defendant, for further plea in
this behalf, says (actio non), because, he suys,
that by the tenth rule of practice of this court,
established and adopted b; this court, at its
December Term, 1831, which said rule has ever
since beea and now is in full force and effect,
it U provided that if a defendant upon a capias
iota not give auAtcient appearance bail, he
shall be committed to priBon, to remain until
discharged by due course of taw. But under
ncitber mesne nor final process, shall any indi-
vidual be kept imprisoned, who, under the in-
SSZ*] solvent 'law of the State, hoa, for lucb
demand, been released from imprisonment.
And the said defendant avers that after tbe said
debt became due upon which tha said judg-
ment in the said declaration mentioned is
foonded. to wit, in February Term in the year
1831, the said Cornelius V. Harris being
returned to the Court of Common Pleas for
Hamilton County and StaU of Ohio, by the
eommissinner of insolvents of Hamilton County
asd State of Oliio, oa a resident of said county
and State for more than two years next preced-
ing, SB an applicant for the benefit of the act
entitled an act for the relief of insolvent debt-
ora, and having also returned a schedule in
writing, delivered to said commissioner by said
Cornelius V. Harris, of alt debts by him owin;;.
among which the said debt in the judgment in
the said plaintiff's declaration mentioned is
founded ia named, did, at said February Term
>f said court, personally appear before the
judges of said court la open Muft, and tbe
said court then and there having full jurisdic-
tion of such matters and such applications for
relief, did then and there, at the term last
aforesaid, order and adjudge that the said
Cornelius V. Harris should forever after be
protected from arrest or imprisonment for any
civil action or debt or demand in the said
schedule of his debts, so delivered to the said
commissioner of insolvents for Hamilton
C%unty, which said order and judgment of
said court is now in full force and virtue and
unreversed,'
"And the said defendant further avers that
afterwards, to wit, in the Term of February,
in the year 1832, the commissioner of insol-
vents in and for Hamilton County, in the State
of Ohio, returned the said Joseph Harris to
the Court of Common Pleas of said county, aa
a petitioner for the benettt of an Act passed
by the Legislature of the State of Ohio, entitled
"An Act for the relief of insolvent debtors,"
who at the time of his application was under
arrest, and returned to said court a schedule de-
livered to him by the said Joseph Harris, show-
ing the debts by him owing, and tbe names of
his creditors, among which debts was the said
judgment mentioned in the said plaintiff's
'declaration, and the said Joseph Harris ['333
afterwards, in the Term of February, in the
year 1832, appeared in said Court of Common
Pleas, before tbe judges thereof, and filed bis
petition, in said court, praying for the benefit
of the act for the relief of insolvent debtors,
and such other proceedings were had thereon,
that the said court at the term lant aforesaid,
ordered and adjudged that the said Joseph
Harris be discharged from arrest on accoLnt
of the debts in the said schedule mentioned, in
pursuance of tbe statute in such case mode
and provided; which said order and judgment
is now in full force and virtue, and unreversed.
All which the said defendant is ready to verify;
wherefore, he prays judgment if the said
plaintiffs ought further to have and maintain
their aforesaid action thereof against him,"
etc.
To this plea the plaintiffs filed a general
demurrer, in which the defendant joined. The
Circuit Court overruled the demurrer, and gave
judgment for the defendant, and the plaintiffs
sued out thia writ of error.
The ease was submitted to the court on
printed arguments by Mr. Elisha W. Chester,
Mr. D. J. Coiwell, and Mr. Henry Star, for tbe
plaintiffs in error, and by Mr. Charles Fox for
the defendant.
For the plaintiffs in error it was argued:
The insolvent law of Ohio makes it the
duty of the Court of Common Plens of each
county to appoint an olUcer, denominated the
commissioner of insolvents, and any person
being arrested upon civil process, either mesne
or final, may require the arresting oflicer to
lake him before such commissioner, and
upon making out a schedule of all the debts
which he owes, and also of all his property,
and assigning the same to the t
—The >
P UcUT
n Hie -.iOlh V
ei, 1831. p. San. SiO; tbetc
» to (liiience pilar to the .
iU
SnnKiiK Coim of thi Umto States.
•'or the benpflt of his crediton, th« commis-
aioiier gives him a certificate, whicli has llie
elTect to release htm from the present Brrrst
and from arrest for anj of the debts conl&ined
in hie schedule, until the Hame be acted upon
by the Court of Common Pleas of the county
where the arrest is made. This discliarge,
however, can only be given, upon hia
making oath that he hu no other property
than that contained in hia schedule, etc. He
may be examined under oath touching his
384*] property 'by the commissioner or any
creditor. These proceedings are to be certified
into the Court of Common Pleas for the county,
where the discharge is either consummated
or the application dismissed. A person not
under arrest, who has resided for a certain
period in the State and county, may, by a lilce
proceeding, exempt his person from arrest.
The question presented for the consideration
of the court is, whether the facU set forth in
this plea constitute a good bar to the piaintifTs'
We maintain that they do not, and that upon
the demurrer to the plea the plaintilTs were
entitled to judgment in the court lielow.
Before proceeding with the argument, it
may be proper to draw the attention of the
court to the facts that, as it appears from the
declaration and plea, neither of the Harrises
was dischorged by the Court of Common Pleas
until after judgment was rendered against
them tn the Circuit Court, that Joseph Harris
was not discharged until after the return of the
ea. sa., and that the rule of court relied on in
the plea was adopted after the return of the
ca. sa., and of course after the plaintiff's right
of action hod accrued. We hold, upon gen-
eral princip'es, that an insolvent law of a State,
providing a mode for the discharge of the
persona of debtors from imprisonment, haa no
force except in the courts of the State— is only
a law affecting the rcmedj^the mere lex fori.
It seems to us that the very statement of
this proposition is enough to secure it a ready
Between a bankrupt law and an insolvent
law a distinction has not iinfrequently been
made, defining the former •• a hiw by virtue of
which the debtor is discharged, upon certain
terms, from his contracts; and the latter as a
law, by which, on similar terms, the person of
the debtor is exempted from imprisonment.
In relation to the rights of the several States
to pass bankrupt laws, thus defined (no law
of Congress existing upon the subject), after
much litigation and a thorough investigation
of the subject, it has been settled by the Su-
preme Court:
1. That bankrupt laws may be passed by a
State, alTecting ail contracts subscquentiy
made within the State, between citizens of the
State.
SS&'l *2. That such laws cannot afTect eoi
tracts, though made within the State, with
citiwn of another State.
3. That they cannot affect contract! not
made, or not to be performed within the State.
8 Story's Commentaries on the Constitution,
&S6.
But as to the insolvent laws of the States
thus understood, w« den; that they haTe any
14S
force in the courts irf the Union. A tttnkrupt
law reaches the contract— such an insolvrat
law only the ptrson of the debtor. The
one diBi;liarge8 the contract upon certain speci-
fied terms— the other only the body. The one
absolves the debtor from his debt — the other,
leaving the debt in exitittnce. declares that the
creditor shall look only to the property of the
debtor for latisfaction. The one acts upon and
limits the effect of the contract — the other the
remedy for a breach of the contract. One
is the lex loci contractus, the other the lex fori,
ily a bankrupt law the contiact is discharged,
and cannot be enforced in any court or in any
place. An insolvent law of this l:ind extends
only to the courts, and the suitors in the coui^
and the remedies by the courts of the govern-
ment enacting the law. The right to pass in-
solvent laws of this description is incident to
the power of establishing courts of justice,
and, as it respects the federal courts, It would
not be necessary to derive it from the clause in
the Constitution authorizing Congress to pa«a
bankrupt laws. 2 Kent's Com. 462.
The laws of the States, vi propria, have na
other force and efi'ect in the federal courts tfaftn
the laws of a foreign country. Tliey regulate,
limit and control contracts, and the titles to
property, and give to the injured a right to
satiofaction for wrongs done to their persons
and property. The rights of parties arising out
of any of these matters will be enforced in k
foreign country, taking the laws of the State
where the contract was made or to be per-
formed, where the title was acquired, or the
injury done, as the rule by which to ascertain
the rights of parties litigant; but in the mode
of redress and the remedy to be applied, the
law of the country where the action is brought,
the lex fori, must prevail.
The law of the place where the right of ac-
tion accrued cnn in no manner control the oourt
or absolve it from its own law in applying Um
■The courts of the United States, in [*iat
relation to the laws of the several States,
stand in these respects in the same situation.
Under the decisions of this court, a State may,
as between its own citizens, provide a mode by
which contracts made after the passing of the
law. and to be performed within the Stat«,
shall be discharged without payment, provided
no bonkrupt law of the United States be in
existence at the time. But in relation to the
effect of the discharge of the person of the
debtor, the debt remaining, the law, so far as
State adjudications go, has been well settled.
Sec 2 Cowen's Rep. 626; 3 Mass. Hep. B4; 1
Dallas, 188; 2 Johns. Rep. IDS; 7 Johns. Rep
117; 11 Johns. Rep. 194; 14 Johns. Rep. 348;
2 Cowen, 632; Graham's Practice, 93, H; 8
Wlieat. 263; 6 Cond. Rep. 432.
Judge Johnson, in delivering the opinion of
the court in Ogden v. Saunders, said; "No
one baa ever imagined that a prisoner in eon-
finement, under process from the courts of the
United States, could avail himnelf of the insol-
vent laws of the State in which the court sits.
And the reason is, that these laws are munici-
pal and peculiar, and appertaining excluaively to
I33i Bei
dttfi, between raHors lubjected to State
power excluaivelf. In their controverMeR be-
tween themeeWea." 18 ^Vheat. 367; 6 Cond.
Bep. 623; Wajumb t. Soatbard, 10 Wheat. 1-
U; «Ooad. Reii. 1.
Upon general principlea, therefore, we con-
aider ft trayond queatioD that the insolvent laws
tft Ohio, and discbargeB uniler them, can have
BO effect, when urged in the courte of the
United Stmita. Haa any act of GoDKreea riven
t« them an effect which they would not have
vi propria T
By the Act of the Z4tli of September, 1789,
it la enacted "that tbe lawi of the aeTeral
States, except where the Constitution, treaties
or atatutea of the United States otherwise re-
oidre or provide, ehall be regarded as mlea of
dedsion in trials at common law in the courts
of the United States where they apply."
Iliis is a mere recognition of the principles
at nmversal juriHpnidence as to the operation
of the local law, and cannot therefore affect
the general principle contended for. Robinson
S17*] 'v. Campbell, 3 Wheat. 221; 4 Cond.
fop. 235; The United States v. Eowland, 4
Wh«at. 108; 4 Cond. Rep. 404; Wayman v.
Southard, 10 Wheat. 1; 0 Cond. Rep. 1.
The Hret section of the Act of the ISth of
llay, 1B28, was pasied to regulate process, etc..
In the courte of the United States held in the
States admitted into the Union since the SBth of
September, 1760. It proyides thbt the forms of
mesne process, and the forma end itiOdea of pro-
ceeding in Buita in inch courts, shall be the same
in each of the said Statei reapcctiTel^, aa were
then nsrd in the highest court of original and
general jurisdiction of the aame, subject to be al-
tered by ruin of court.
By the third section of the same statute, it Is
enacted "tliat writs of execution and other final
process, isausd on judgments and decrees, ren-
dered in any of the courts of the United Statea,
and the proceedings thereon, shall be the same,
except their atyle, in each State respectively, aa
M« now used in the courts of such State; pro-
vided, however, that It shall be in the power of
tihe courts, if they see fit in their discretion, by
rale* of conrt, so far to alter final proeesa in
iBid court! aa to conform the same to any
dtBDge which may be adopted by the Letnsla-
torca of the respective States for the State
Tbia last section applies to all the courts of
the United States except those held in Loui-
siana, and is the only part of the act that haa
nay reference to final proeesa. Does It reach
tbe present case, or in any way affect the lia-
bility of tbe Ilnrrisea to be arrested and im-
priaoned npon a ea. sa., or of the defendant,
tbeir bail, in the present action! We thinii not.
It may be proper to observe that in this act
tbe word "process," throughout, is used in its
Umited, and not in the extended sense which
baa sometimei been given to it. In the first
■eetion, "mesne process" is spoken as distinct
from "the forms and modes of proceeding," and
in tbe Iwt aection, the expression, "writs of exe-
cution and other final process, and the proceed-
inga tbereon," renders it certain that, by proe-
eaa, the Legislature intended a writ or lome-
tUog aaalogoua, and that it ii contra dis-
ttBgAabed from tbe proceedings to ba bad by
«litaa«f ■ writ.
. T. KaTJOHTOH. SM
Under this act, the pUIntUT bad a rigbt to ■
capias ad respondendum against the Harrises,
and tliereon was entitled to bail, as given; for
that was according to the forms of mesne
'process, and to the forms and modes ['338
of proceeding in, the courts of Ohio. After
judgment, he was entitled to a capias ad satis-
faciendum against them, for this is the seme
writ that was in 1B28, and at tbe time, used in
Ohio. This right of the party, and tlie duty of
the'conrt or its officer to issue the writ, cannot
be disputed. The right and duty existed before
the passage of the Act of Congrese of 1828, and
is confirmed by it, so long as such writ is used
in the State courts.
But the very nature of this writ requires that
the party I>e arrested and detained — (his is ita
command, its object. If there be a right to is-
sue it, it is obligatory upon tbe marshal to exe-
cute it, and there is but one way in which the
command of the writ can be obeyed^ to wit, by
arresting the defendant. Subseijuent proceed-
ings—the manner in which the defendant shall
afterwards be dealt with, the limits witliin
which he shall be confined, the nature of the
walls within which he shall be inclosed, whether
lated by the statutes of the State adapted by
this act of Congress (bed there existed no law
of Congress upon the subject of prison bonds).
Yet the defendant is obliged to maintain that
the proceedings which ought to be had in the
case of the Harrises, if they had been arrested,
are nothing more nor less than instantly dis-
charging them. This would not be a proceed-
ing upon a capias ad satisfaciendum, but an an-
nulling of the writ and all Ets efficacy. If they
would have been entitled to such a discharge,
it must be because the arrest was wrongful and
illegal, and could lie for no other reason. If
the arrest by the officer would be illegal, the is-
suing of the writ commanding tlie arrest must
be illegal. And if it were illegal to issue the
writ, then the plaintiff had not a right to a writ
of execution used in the State courts, which
the statute expressly gives him.
We beg leave to present another view of this
statute. If the defendant can claim any bene-
lit from it, it is under that part of it which re-
quires that the proceedings upon final process
shall be the same as used in the State courts.
Does this enjoin upon the marehal, with n ca-
pias ad satisfaciendum in his hands, every duty,
which, in the same circumstances, is enjoined
upon the sheriff of tbe State by its lawsT If so,
when 'he makes an arrest of an indi- [*33V
vidual, who, not having taken benefit of the in-
solvent law of the State, is desirous of doing so.
he carry him
T of inaolvents a
the sheriff is required to
r If so, the State commissioner takes the
prisoner's bond to appear — where T In the State
court. He takes his schedule and certifieB all
his proceedings into the State court, and there
the prisoner must appear, there his discharge
be consummated, or, his petition being dis-
missed, he may still remain liable to Imprison*
ment upon the capias ad satisfaciendum. Here
there would be no difficulty in a case arising in
a State court. The sheriff being of course pres-
ent, would take the defendant immediately in-
to eustodf and commit him to jail. But tb«
SUPBBHX Coxm OF TSB Unitid Statib.
1S3S
mftnhal of the United States not being present,
unlew hy accident, lifs priioner would go at
large. C^n a defendant when thui arrested by
the process iiBuing from the court of one gov-
•rntiient, in the exercise of its legitimate juris-
diction, be thus turned over to another power.
entirely disconnected with that which has the
rightful jurisdiction of the caseT This certainly
would be something different from adopting tlie
same mode of proceedings used in the State
courts; it would he transferring its own pro-
ceedings, its proceHs, its jurisdiction over per-
•ons, to another tribunal with which it has no
connection — it would be taking from a party a
right secured to him by the Constitution of the
United States.
There could be no such transfer of a prisoner
«nd process from the court of one government
to that of another. Nor can the benefit of the
State insolvent law be extended to a prisoner,
under federal process, in any other way. No
one could, for a moment, entertain any such
idea; and we only mention it to show that pro-
ceedings to be had under the insolvent law of
the State, are not such proceedings, upon either
mense or final process, as are adopted by the
act of Congress. Indeed, proceedings under
the insolvent law of the State cannot be regard-
ed as proceedings upon final process; process.
either mesne or final, is not necessary to exist
to entitle an applicant to the benefit of the act;
though, when that benefit has been extended to
him, it alfecta final process from the court of
the State, in its operation upon him.
But supposing that our reasoning is thus far
nnEatisfactory, there is another argument which
S4 0*] must set this matter at rest. *In rela-
tion to the right of discharge from imprison-
ment, under final process from the courts of the
United States, Congress has left nothing to in-
ference or implication. It has legislated di-
rectly upon the subject, has prescribed the
cases in, and the mode by, which prisoners in
execution may be discharged. The Act referred
to was piiR^ed in 1800, and is found in Gordon's
Dig. Acts 2B34, 2835, 2836, 2B3T.
Ry this act. the district judge, or commis-
sioner appointed by him, is authorized to ad-
minister an oath, prescribed in the statute, to
the prisoner, and to discharge him from im-
prisonment; but notice must be served on the
opposite party, or his attorney, at least thirty
days previous, if within one hundred miles, to
show cause, on a given day, against the dis-
eharge. If any sufficient cause he shown, or
appear from the examination, in the opinion of
the judge or commissioner, the prisoner la not
to be disrhsrged.
The Legislature having thus prescribed the
mode and the terms upon which prisoners, un-
der process from the United States courts, ahall
be discharged, upon what principle is it con-
tended that they are entitled to H discharge
without complying with any of these terms —
without pursuing, for a single step, that mode,
and virtually by a tribunal ditferent from that
provided; and one which. In the nature of our
governments, can have no control over, or
power in, the matter I It cannot be contended
that this Act of IBOO is repealed by anything in
the Act of 1828. A repeal would not be in-
ferred by this court from an act of that nature,
and passed for the object* obviously aimied at
by Congress, Nor can It T>e anppoied that tlia
Ijegislature intended to confer upon the courts,
the officer, or upon the prisoner, a power to
'llspense with its minute provisions, and to be
j^overned. at pleasure, by the law of the Stat«
in preference. It is too obvious that Conereaa
could never, in the Act of 1828, have contem-
plated any such thing.
But even if this Act of 1800 were out of ex-
istence, we think tiierv would be in the way of
the defendant another obstacle, which he could
not surmount.
Let it be admitted that the federal courts are
required to adopt the mode of proceeding up-
on final process prescribed by the State I.*gis-
lature, in all the latitude that can be claimed.
still they are not required to adopt the acts of
the State tribunal 'in a particular case. [*341
These acts are not made binding upon them, or
upon the present plaintiffs. It is not so much
the law of the State that the defendant would
avail himself of, as a particular adjndication of
the State court. It is the discharge by the
court which he pleada. This act — this adjudi-
cation— this discharge, is not reached — is not
in any manner contemplated or BtTected by the
Act of 1838. It is the law of the State, aa it
regulates process and the proceedings thereon,
that is adopted. The judgments and adjudi-
cations of the State courts stand in the same
situation, and have neither more nor less effect
in the courts of the Union than if this act had
never been passed- And to make them binding
upon the pluiiitilfs, and conclusive upon their
rights, they must have been a party in the cause
in which they were made — they must have bees
rightfully subject to the jurisdiction of the
court: the State in legislating and the court in
adjudicating, must have pojseased a power over
them to bind them by their acts. Such was
never the fact— they were citizens of anolhcr
State, suing upon a contract made and to be
performed in another State, and in no renpeet
whatever bound by the laws of Ohio, or amen-
able to her tribunals. The act of the Court ot
Common Pleas of Hamilton County, thirefore,
could affect none of their rights, nor deprive
them of any legal remedies for the violation of
those rights.
We think, then, upon general principles, and
upon a review of the acta of Congress supposed
to bear upon the question, that an insolvent law
of a State, providing a mode for the discharge
of debtors from imprisonment, and discharges
under such a law, do not confer upon them an
exemption from any proceas used in the courta
of any other SUte or of the United States. If
we have established this, the Harrises were lia-
ble to arrest and imprisonment upon a capias
ad satisfaciendum, and not having been found,
their bail, the present defendant, is liable to
pay the judgment recovered against them.
Can the rigiits of the parties, as drawn in
question in this case, be affected by any rule
which it was competent for the Circuit Gonrt
to establish!
Rules of court can never vary the mode of
proceeding prescribed by statute, or give a right
of discharge in any other mode, or upon any
other terms than those contained in it. They
•are the only mode adopted by the coiut [*S4S
in administering the laws of the land— thej
can never add to, diminish, or vary the pro-
vWoBt of K Btfttnta. Tile rMognli;ftnc« of htii
la > contract, th« form of which may be pre-
■eribed by the court; the nature, effect and ob-
UgKtion kre reflated bj Qxed lawa. The ob-
ligKUon of the contrect can only be dischiirg?d
bj law, never br the mere virtue of a rule of
Inctice eatablishcd bj court— certain! j not bj
% rule made after the execution of the bond '-
The tenth rule of the Circuit Court for the
Diatrict of Ohio, relied on by the defendant in
tllU caM, ia in these words: "But under neither
neane Dor final process, 'shall any individual be
kept imprisoned, who, under the insolvent law
«f the State, ha*, for such demand, been re-
IraaM from imprisonment."
One in prison only can be released from Im-
pnaoniUEnt. One who has never been impriS'
oned on a debt, never can have been released
from imprisonment for that debt, though he
■nay have been absolved or released from lia-
bility to imprisonment on account of It. If, in
this case, the plaintitTs had, In the State court,
caused the Harrises to be arrested and impris-
oned for their debt, and they had been dis-
diarged by the court, to who^e jurisdiction the
plaintiffs voluntarily submitted their rights,
there would have been an adjudication by a
cc>npetent tribunal, and the Circuit Court
might well refuse to suffer a second arrest for
the same debt. We think the rule susceptible
of this construction, and thus literally under-
stood, we do not object to it. But, if it was
hitended to be uadcratood aa broadly as the
defendant claims, w« must, with all due ra-
ipeet to the Circuit Court, deny its competency
to establish such a rule.
If we are not mistaken, It has been attempted
to derive the authority to establish such a rule
from the Act of 1828. No such power is there
given- The power given is, bo far to alter final
process by rules, as to conform it to any
changes made in the State courts. If the au-
thority existed at all, it must be derived from
tome other act of Congress, or from the power
inherent in a court. We know of no such con.
(erred or inherent power.
We think we have sufficiently shown before
that the Stale Court or the State Legislature
S4S*] could not confer on an individual 'by
Its insolvent law an exemption from arrest in
the federal courts — that they had no power to
rcleaae the Harrisea from the operation of any
proceaa naed in the Circuit Court. Could such a
power be granted by ths Circuit Court; T Surely
court that a defendant can claim an exempt]
from arrest In the federal court, but because
the federal court, in its comity to the Stat«
eourt, sees fit to take it as a reason for dis-
charging him from iti own process. This an-
swer is certainly claiming for the federal court
a very high prerogntive power. A court pro.
■omicca the law — it declares, not who shall t>e
impriaoned and who released, in civil causes,
•eDording to its own will and pleasure, but who
ii pronounced by the law to be a prisoner, or
ta be liable to imprisonment — enforces the law
Ib ita operation upon an individual, not its own
arbitral pleasure. We know not this thing
called comity, between courts, when our Hghta
an iBvolrad and to be adjudicated.
. T. Hauqhtos. ttt
In making a rule of praetfee (and eovrta can-
not create a rule of law), the first inquiry ia,
what ii the lawl and what are the rights of
pursone conferred or Mcured by the lawt And
this l>eing ascertained, the province of rules of
court is to fix the mode and form of enforcing
the law.
But what is claimed here for a rule of court t
Not that it is a form and mode of administering
the law as it previously stood, but an overrul-
ing power to suspend, to vary, to annul, th«
law. Before this rule was established, the de-
fendant had become bait for the Harrisea; had
entered into a contract, the force, effect and
operation of which were settled and estabJiBhed
1^ the lawB of the land; a capias ad satisfacien-
oum against them had been issued, and re-
turned "not found;" the legal effect of this re-
turn was also fixed by the law in existence, and
rights were thereby acquired, and then what ia
claimed ! Nothing less tlian that the court, by
some high power, exercised in the shape of a
rule, can provide a mode, before unknown, by
which this bail should he disrharged from lia-
bility, this contract vacated, these vested rights
wrested from the present plaintilTsi we cannot
argue against such an assumption, because the
simple statement of it carries, to our mind, a
stronger refutation than any argument.
'The point insisted upon by the de- [*344
fend ant in the court below is, that according to
the law of the State, if the Harrises had been
arrested upon a capias ad satisfaciendum issued
from a State court, after their discharge uiirler
the insolvent law of the State, it would have
been the duty of the sheriff, upon the produc-
tion to him of their certificates of discharge,
instantly to release them; in other words, that
they were not liable to arrest by the State
officer; that as, by the act of the State Legisla-
ture, this is the course of proceeding pointed
out for the sheriff, so it must be the proper
course to be adopted by the marshal upon a
similar writ from the United States Court, for
the proceeding on final process must be the
same in the United States as used in the State
To this argument we reply, as we have
already said, that this would not be a proceed-
ing upon the writ, but a forbearance to
proceed upon, or execute it in any way,
and that for the reason that It does
not lie against this particular person —
that it is not the "same" process which could
be used against him in the State courts. The
matter, therefore, is not governed by that part
of the law which requires "the proceedings to
be the same." but by that part which requires
"writs of execution to be the same as used in
the Slate courts." To our mind, it is clearly Buf-
ftcient that a capias ad satisfaciendum Is a writ
used in the State courts, and if it be such a
writ, the adjudication of a State tribunal can-
not restrain the use of it by the federal court
against a particular person — no such efficacy la
given by the Act of Congress of 1828 lo an ad-
judication by a State court. The federal court
and federal officer are neither authorized nor re-
quired to look Into the records of the Stata
court to ascertain the extent of their power
over a certain person. No such thing waa con-
templated by the act of Congress.
The same answer to the argument of the de-
fandant may he ^ven, if , as 1« claimed, this
SuPBEUB CoDBT OF THs UnmD Shaom.
•oming within that part of tlie act
whieh retaU* to the pioceedtnga upon the exe-
It will be recollected, too, that before anj of
thcBt proceeding* under the inBolvcnt laws of
Oliio, the Circuit Court whb exercising its ju-
riidiction over all the parties; that the defend-
ant had becoiae special bail for the Hanisce,
S4S*] and that judgment *had been tendered
■gainst them before the discharge of either of
them, and that one of them was not discharged
until after a capias ad satisfaciendum had been
Issued against them, and returned not found.
The recognizance was therefore forfeited, and
the present defendant liable to an action before
the discharge of Joseph Harris. Was it in-
tended by the act of 1828, directly or indirectly,
to g^ve to a State court power to reloase a bail
from its recognizance in the federal court I To
release to him an action accrued against him?
To discharge him from a contract after it was
broken! Could the act of the State court devest
the present plaintiffs of rights thus acquired
under, and cognizable by, another jurisdiction!
Is there any inherent power in a State court
— Is there an authority conferred upon such a
court, by a necessary construction of any act
of Congress, or by any rule of court, which it
is competent for judges to establish, to take
from the federal courts their prisoners, confined
luider their process, in a suit of which the;
not only have the right of jurisdiction, but tn
which they are actually exercising that juris-
diction, and set them at large! The principle
insisted upon by our opponents goes the full
utent; the courts of common pleas of Ohio can,
upon this principle, extend the tienefit of her
insolvent laws to the actual prisoners of the
United States courts, as well aa to those who
are liable to imprisonment under their process,
by a proceeding commenced in the State courts,
after the key has been actually turned upon
the prisoners. If they can protect the one, tney
can, by the same means, release the other. It
may be the law of the land; but we have not
thus learned the nature of our federal and State
institutions.
We have endeavored to show,
1. That an insolvent law of a State, by which
an individual is relieved from imprisonment, is
merely a law affecting the remedy, the mere
lez fori, and that it can have no force except in
the courts of the government enacting it) that,
therefore, npon general principles, it does not
govern the courts of the United States.
8. That there is no act of Congress that gives
to such insolvent laws any force or effect in the
courts of the Union.
3. That if the Act of Congress of May, 1828,
could be supposed to give any effect to the in-
S4«*] solvent law of Ohio, yet it *does not
giv* any new effect to the adjudications of her
courts; that it does not give to them the power
of exempting any individual from any procesa
naed in the courts of the United States.
4. That it is not competent for tha circuit
courts of the United States, by any rule, to
oonfar such a power upon th* State eourla, or
In any way to alter the legal effect of the ad-
judications of a State court upon partiea liti-
gant in the Circuit '^'Ourt; and eapwially, that
the Circuit Court oouM not by any general rule*,
made after » eontract — whether sucli contract
be B recognizance of bail or any other contract
— has been made and broken, alter the effect
of that contract, or take away the right of the
party to damages for that breach.
5. We think we have also shown in the eOut«e
f our argument, and that it is manifest, that
the present plaintiffs, being residents of another
State, their contract with the Harrises hav-
ing been made in another State — judgment
having been recovered against them in
the Circuit Court upon that contract, the
present defendant hffving been special bail
in the case—the State courts could not so in-
terfere with the persons of any of the parties
—with their contracts or any matter relating
thereto, as directly or indirectly to affect aopr
of their rights or liabilities in the Circuit
Court.
We think that we have thus shown that tbe
plea of the defendant to the plaintiff's action
below was insufficient, end that the demurrer
thereto ought to have been sustained, and judg-
ment rendered for the plaintiffs.
We are aware that there have been dedsiont
in the circuit courts of the United States differ-
ing, in some respects, from the principles tor
which we have contended. Persona arrested
on mesne process have sometimes been dia-
chsrged on common bail, because they had
been previously discharged under a State in-
solvent law. But even this has been refused
when the plaintiff was not at the time within
the jurisdiction of the State, or where the con-
tract sued on was made without its jurisdiction.
See Peters's Circuit Court Beporta, 484, End
cases there cited.
But it is obvious that in niany cases defend-
ants ore entitled to be discharged on common
bail, who after judgment are not exempt from
a capias ad satisfaciendum, and to all the
effects of this writ. No attempt, however, so
far as we are aware, 'has ever before [*S4T
been made to nullify a final process of tbe
United States courts by means of such an in-
solvent law of a State, or by means of any
adjudication by a State tribunal under such
law. Yet even if this were a question oj to a
ri^ht of bail on mesne process, the plaintiffs
being citizens of another State, the debt on
which judgment was recovered having been
contracted in that State, the case would come
within the principle decided by Judge Wash-
ington, above referred to, of Read v. Chapmaa.
Mr. Fox, for the defendant.
The defendant in error thinks this judgment
ought to be sustained. But whether It iholl be
sustained or reversed, depends upon the qu«e<
tion whether a discharge from imprisonment
obtained in the State courts of Ohio, under ber
insolvent law, can be of any validity in the
United States courts. If such a discharge is
valid, the question is at an end. That it is valid
in the Ohio courts is not questioned. I main-
tsin it is valid in the federal courts.
By the Aet of Congress of 10th May, 1S2S,
S Laws U. S. 21S, it is provided "that writs
of execution, and other final process, issued on
judgments and decrees rendered in any of the
courts of the United States, and the proceed-
ings thereim, shall be the aame, exeept their
style in each State respectively, as ore now naod
la tbe courts of soeb Statsi piovidod, however.
IStt
Beesb kt u. t. BaugbtoIT.
Ut
that It iImII be In the power of the eoiirta, It
tttej lee Gt in their discretion, by rules of court,
•o far to alter Snal process in said courts as to
conform the same to any change which may be
adopted by the legislature* of the reeptctive
States for the State courts." By this stutute, I
understand, the same executions then in use in
tka State courts of Ohio, and the same modee
I under the insolvent lav, If ta arrest him. If
'the defendant *liaB taken the ben^St [*S4t
of that act, or liaa only applied for it and ob-
tained a eertiflcHte of ei^i'inption from arrest
until the sitting of the next court, the officer
having the execution ia bound to release him
from arrest. If be knows of the defendant's
to hare been the object of Congress in paasing
tliat law, and such, I believe, has been the
pr*ctiec under it, in the Seventh CHrcuit, at
I««Bt. And for the purpose of enabling thi
circuit courta to continue to use the same exe
cations, and the same modes of proceeding
thereon, power is given the courts to "alter
final process so ae to conform the same to any
change which may be adopted by the Legiala-
tures of the respective States for the State
S48*] courta." *In KentueliT, where impris-
onment for debt is abolished, I understand the
federal courts do not pretend to issue a capi
If this was the object of the law in questi'
thia court baa onijr to ascertain the node of
proceeding to execute writs of capias ad satis-
By the law of Ohio, passed IZtb March,
1S31 (20 Ohio Statutes, 32D), entitled "An Act
for the relief of insolvent debtors," it will be
found (section twenty-one) that on the appli-
cant first applying to the commissioner ot in-
solventa for the benefit of that act, he obtains a
certificate which protects his person from arrest
or imprisonment for any debt or demand in any
dvll action, at the suit of any person named in
Us achedule, until the second day of that term
af tha Court of Common Pleaa to which the
eommiaaiODefS shall return copies, ate. By the
twenty-second section, the aherifT, or any officer
baring custody of the defendant, is directed to
diaeharge him out of custody on his producing
hie certificate; and the officer is directed "to
return a copy of such certificate, and also re-
tnni that, in obedience to such certificate, he
had discharged the person named therein."
Provision is made for the Court of Common
Pleas of the county to receive the returns of the
proeeedinga before the commissioner of insol-
vents, and for the final granting or rejection of
such application, and granting to the applicant
a final certificate of discharge from arrest, on
account of any and all debts mentioned in his
schedule, forever. And by the thirty -sixth
section it is provided, in addition, that "if any
aherilf or oilier oflirer shall arrest any person
having been ao discharged bv the court, such
officer having knowledge of such discharge,
and that the person so arreated haa a certificate
ao granted to him by the court, or ehall refuse
to discharge the person so arrested out of his
custody, as soon as such certificate shall be pro-
doeed and shown to him, the officer so o(Tend-
ing shall be deemed guilty of treapass, and shall
ba liable to be prosecuted in the Court of Com-
Bwa Pleas, in an action at the suit of the per-
•OB injured," etc.
Here, then, we have the whole law which
gorems this case. The mode of proceeding to
esecnt* a capias writ in Ohio, if the defendant
Wa not been diacharged from Inpriaonment
> lb ed.
named in the writ, he is considered as a trea-
passer in making the arrcat. The return of tha
defendant's having taken the benefit of the act.
is a good return to such an execution; and tb*
reason why such a return is good, is because H
is the mode of proceeding required by the stat
And by the tenth rule of practice of the Cir-
cuit Court of Ohio, this practice or mode of
proceeding is adopted by tlmt court, as is ad-
mitted by the demurrer. This rule of proceed-
ing was adopted at the December Term, 1831,
and was intended to avoid all doubt as to the
course which the marshal ought to pursue on
mesne and final process.
There can be no (]iiestion. I think, but the
rule does adopt in effect the whole insolvent
law of Ohio, so far as the aame ia connected
with capias writs.
But there was no necessity, in fact, for the
court to have adopted thia nile after the psssage
of the Act of loth May, 1828; for by the fair
construction of that act, as has been already re-
marked, the proceedings of the State courts are
expressly adapted, and by that adoption be-
came the law of the federal courts in Ohio.
And it will be found that at the time the act of
Congrese was passed, the proceedings upon ex-
ecution, in the Slate of Ohio, were the aame aa
In December, 1831. 22 Ohio Laws, 328.
It is said, the Legislature intended by the
term "process," a writ, or something analogous;
and that it ia contro distinguished from the pro-
ceedings to be had by rirtue of a writ, and that
mesne process is spoken of as distinct from the
"forms and modes of proceeding." The dia-
tinction may exist, but alTords no favorable
argument for the plaintiffs. The act Is to reg-
ulate the processes in the courts of the Union.
Row can the process be regulated, unless by
directing the mode of proceeding in executing
itT The form of the process, whether mesne or
final, is of no benefit to the plaintiffs, unless a
mode Is pointed out, by law or rule of court, of
making that form available. To make a de-
mand available againat a debtor, a 'writ ['160
must be devised, and a mode of executing that
writ adopted, or the debtor cannot be brought
into court. For the purpose of ascertaining or
fixing that form or mode of executing it, the
first section of the Act of 19tlt May, 1S28, waa
adopted. And tha third aection of the act
adopts the same executions, and the proceed-
ings thereupon, as were at the pasaing of tha
act used in the courts of the State. Of what
beneficial use could tbe mere blank execution
have been without a mode of executing it I
mere formal writ is of no validity without
the mode of executing it. The form and tbe
mode of executing it constitute its real value.
And it is evident that Congress intended to
adopt the form and mode of proceeding also,
as they have used the language of the Act of
1789, which has been eonatrued bj this eourt
IftS
Sn BUFBEIIE COUBT 0
to embrkra the whole progress of kn execution,
from its formation to the time of its being full]'
executed. 10 Wheaton, 1 ; 6 Cond, Rep. 8.
CongresH, therefore, have adopted the Stati
Court executions, knd also the mode of proceed
Ing upon those executions, as the; existed ir
Ut-y, 1828. And if the sheriff could not arreat t
peraon on » capias ad satisfaciendum Jsaueii
from m State court, neither could the marshal
on an execution from the federal court-
It is not contended on the part of the defend-
aot la error that the State Legislature could
Siass insolvent laws to affect the process of the
ederal courts. But we do contend that Con
KeSB may adopt an; of the State laws as a rult
r the government of the federal courts; and
thej have adopted the laws of Ohio in force at
thepaseageofthe Act of IHthMay, 1828. The
laws of Ohio, therefore, are the laws of Co3-
gresB l^ adoption. It is only on this view of
the Act of 1789, the federal courts have any
known modes of practice or serving writs. The
great object of the latter act was to assimilate
the process and proceedings of the federal
courts to the process and proceedings of the
then State courts. The object of the Act of
1628 was to assimilate the process and practice
of the new States and the federal courts there-
in.
And is it not a matter known to us all that
the federal courts did not pretend to isi
not issued in the State courts, and that they
always made their rules of practice, etc., to
conform to the rules and practice of the State
»51*] courts! Did *the federal courts --
tend to sell land in Virginia, as they did in
York and Pennsylvania? They did not.
when Kentucky authorised land to be sold, the
federal courts, under the authority given them
•o to alter the form of process, etc., hy the Act
of 1789-1792, adopted the State writs of execu-
tion suitable to subject land for sale on judg-
ments obtained in those courts.
The counsel appear to be laboring under a
great mistake in supposing they have shown
tbe special bail bond forfeited absolutely by the
return of the capias ad aatis faciendum not
found. That the bond is ao far forfeited by
the return as to authorize an action to be
brought on the bond, I admit; but still the hail
has the right to surrender his principal at any
time before the return day of the scire facias
against the bail, and thus defeat the plaintifTs
right of action. This right of surrender is ab-
solute. And if the principal dies after the re-
turn of the capias ad sstisf sciendum, and be-
fore the return of the scire facias against the
bail, the bail is discharged by the statute law of
Ohio. The bail is not fixed till tbe scire facias
is served. Bank of Mount Pleasant v. Admin-
istrators of Pollock, I Ohio Hep. 36.
And at the time this bail bond was given,
by special rule of the Seventh Circuit Court,
It was provided that special bail might surren-
der the principal before the court at any time,
before or after judgment, or to the marshal,
provided such surrender be made before a return
if a scire facias executed or a second scire facias
nihil. It is not tnie, therefore, as suggested in
El^ntiff's argument, that the rule of court re-
ed upon took away any vested right from
plaintiff, or conferred any on defendant*.
1S4
E United Statm,
ISU
Such being the right of the principal to anr-
render, I take it to be a well-settled principla
that wherever the law takes the principal out of
Ihe custody of his bail, either by the operation
of an insolvent or bankrupt law, or otherwise,
ao as to prevent his surrendering, it is tanta-
mount to a surrender. The law having mad*
it unlawful to arrest, excuses the surrender.
U East, 6if3; 1 Vcd. Law Library, July. 1833,
p. 124; 1 M'Cord'a Rep. 373; 18 Johna. Rep.
:i35; E Blnney, 338; 9 Serg. & Rawie, 24.
This (question is referred to for the purpoaa
of showing the 'plaintiffs' counsel are [*S5S
mistaken in supposing that the court below, by
adopting the rules of December, 1831, under-
took to devest them of any vested right of ac-
tion in the bail-bond by the return of the ca.
sa.j because, as before remarked, the tenth rule
of the court, then existing, gave the right to
surrender at any time before the scire facias
against the bail returned executed.
Having, as is supposed, established the prop-
osition that the Act of Congress of May, 1S28,
has adopted the State Court executions, and the
mades of proceeding thereon, as used in IB2B,
I might here leave this branch of the case. But
should the court differ with me in this view,
it is contended that the rules of practice adopted
by the court below, at December Term, 1831,
fully shield the defendant from all responsi-
bility. The tenth rule, recited in the plea, re-
fers to the insolvent law of Ohio particularly,
and adopts it altogether. Under neither mesne
nor final process shall anv individual be kept
mprisoned, who, under the insolvent law of
the State, has for such demand been released
from imprisonment. Is not this a full and
complete recognition of the validity of the in-
solvent law! Does it not recognize the effect
of that law, as an excuse to the bail for not
surrenderingT By the fifteenth rule, bail may
surrender their principal at any time before
judgment, that is, judgment ags,inst the bail.
Now, as before remarked, the principal having
become protected by the law from arrest for
this debt, his bail could not legally surrender
' 'm, and hence he is excused.
But, it is said, the court has no power to
adopt rules which take from a citizen of an-
otlier State the right to imprison his debtor.
Thia position cannot be sustained. This court
have decided that the States have the right to
abolish imprisonment altogether. 12 Wheat.
"■'S, 381; 4 Wheat. 200.
The United States courts have the right to
lit their process to such legislstion; they have
the power, therefore, to abo}ish by rule of court
the use of the capias writ. If tbey can abolish
it as to all the citizens of Ohio, cannot they do
favor of that small but unfortunate class
of debtors whose necessities compel them to
petition for that liberty which ought to be the
right of every American T
But it is said there is provision made by tlw
Act of Congress 'of 1800 by which an I'351
insolvent may be discharged, and hence it is
urged that no other mode than the one pointed
out in that act could be resorted to for the pur-
pose of relesaing him from impriaonment. I
contend that the Act of the IQth of May, 1828,
30 far as It conflicts with the Act of 1800, re-
peals the latter act. But whether this is so or
not, the Act of 1800 is not an act for the general
IBU
Bkos St At. v. Haoqbtoi.
3S»
wtlU of ImOlTeiita, but i* oalj intended to n-
Immam ui iiuolvent debtor from im prison tnent on
tba partlculu- debt on which he is charged on
•zecution, while the insolvent law relieves the
drttor from srrest in soy debt he is owing at
tk« time o/ his application. The object of the
two lawB, therefore, ii widelj difTerent; and
OongrcH, hj adopting the State laws, and thi
Circuit Coiul, by adwting those lawa, maj
BTSTcnt the defendant (rom being arrested; ant
I Gantend that the Act of 1828, and the rule*
kforeaaid, have virtually abolished imprison-
■«■* of insolvent debtors.
Bat it a uid that in attempting to relieve
himself from responsibility in the present case,
tho defendant ia not availing; himself of the State
law, but ol a particular adjudication of a State
court. But iuppose the law of Ohio had de-
elnred tba.t no man ahould be arrested for debt;
■uppoae the Legislature bad extended to de-
fendanta, Harrises, and exemption fromimprison-
■nent by a legislative act. as was done in the
cue of Mason v. llaile, IZ Wheat. 370; e Cond.
Rep. 635, would it be contended that in that
ease no exemption from imprisonment could be
Again, will it be contended that no rights or
■zemption can l>e acquired under judicial acts
of the State courts r Surely not. An applica-
tion for the benefit of the Insolvent Act, al-
tbongll ft judirial proceeding, is not therefore
void. All creditors named in the application
are parties to it, and are bound by the judg-
ment rendered. They may appear uid object
to the applicant's discharge-
It ia said that if the Harrises, after being ar-
rested, were entitled to be immediately dis-
charged, this would b« annulling the execu-
tion, not proceeding to execute it. But might
not the iftme remark be made in all eases I
Would it be considered as annulling an execu-
tion In the State courts by the sheriff discharg-
ing a defendant from arrest on his producing
tl4*] the certificate *of his discharge I The
sberiff, in proceeding to execute a capias ad
satisfaciendum, would not be considered as an-
nnlling the execution under such circumstances.
And Mrtainly, if Congress, by the act referred
'" "T by the rules of its own courts, have adopt-
sat bj the insolvent debtor proceeding, in the
same manner as the sberiff is diacharging his
duty on the State Court execution by a similar
Nor Is it true that a capias writ can only be
obeyed by an actual arrest. If the law forbids
the arrest, or if the defendant dies, or if he is im-
prisoned on a criminal charge, so that the officer
cannot legally arrest, he may return the facts,
and by so doing he obeys In a legal sense the
rommand of the writ. It does not neccSBarily
follow that the writ unlawfully issued merely
becanse the defendant is privileged from being
arreated. A writ is lawful when issued against
a nttor attending eourt; hut the suitor would
be privileged from arrest; and If he claimed his
privilege by suing out a habeaa corpus, he waiiiit
be discharged. !to of a member of Congress, a,
iiii<"r. s^il all that class of persons whom the
foSsr of Mm I^w has seen flt to exempt from ar-
mt. The inoolveat lawa of the State are. in
frindple, nothing more than granting like
« Kb ««.
privileges for arreot to aa nnfortunate class of
honorable men; and the period during which
that privilege shall continue depends upon the
Legislature.
Again, it la said the court could not adopt
any rule, tlie effect of which would be to dis-
charge the bail from Uability to vacate their
contract, and wrest their vested rights from the
plaiatilTs.
Before we discuss the proposition as to
whether the court below did by their rule va.
cate the contract of the plaintiffs, we had better
ascertain what that contract was. The contract
is found in the declaration in these words: the
defendant, at the time mentioned, "acknowl-
edged himself special bail for the said Joseph
Harris and Cornelius V. Harris in the sum of
M.OOO. in the cauac or suit in which judgment
was rendered as aforesaid; that is to say, that
they, the said Joseph Harris and Cornelius V.
Harris should pay and satisfy the said judg-
ment, or render themselves into the custody of
the marshal."
Now, it is asked, what contract does this
present in and of "itself! Without the ['SSB
aid of the rules of court, or the statute of Ohio,
it is perfectly senseless. What Is meant by
special bail, the rules of court tell; but without
those rules, the contract is senseless jargon. If,
then, the contract depends upon the rules of
court; if they gave it life originally; it they pre-
served its existence, the plaintiffs are entitled to
what those rules give them, and to nothing
more. When they took the recognizance, it
was with a knowledge that those rules were
under the entire control of the court; that they
could be moulded by the court; that the State
Legislature could abolish imprisonment for
debt and the writ of capias also, and that the
court were authorised to alter their writs to suit
the State legislation. The plaintiffs took their
recognisance subject to all those contingendea.
12 Wheaton, 370.
No contract, therefore, has been violated, nor
have there been any vested rights wrested from
the plaintifTs. To make the worst possible case,
all that can be said, is that the plaintiffs, by the
adoption of the rule in question, were deprived
ae remedy which they had when the bail
given, VIS., the imprisoning the defend-
ants. But as it is admitted that this only affect-
ed the remedy, the plaintiffs in error cannot
iplain.
he counsel appear not to view the contract
of bail corrertly. when they attempt to liken it
to other contracts. It is, in fact, nothing but a
part of the process of the court. It is a mere
substituting of a keeper of the defendant's own
'loice to one appointed by law. For the bail
said to be the keeper of the principal; he can
ke him wherever he plrases, and his obligation
to keep him so that the plaintiff may take
m at the proper time. And the moment the
creditor loses his right to take or hold the prin-
cipol, the bail is discharged; for the latter can-
not keep where the former cannot take the body.
It ia no question, therefore, about interlcring
with veated rights. The simple inquiry is, had
the plaintiffs a right to take the bodies after
Ihey had taken the boneHt of the Insolvent ActT
If they had, the jurigment is erroneous; if they
had not, it is correct. 14 East, 69S; Law Lib-
rary, titie BaiL
lit
36S
SUFBKIU COUBT 0
t UMim Statu.
ISW
Hr rtutlee Story deliTered the opinion of the
This ii a writ of error fo the jiidBincnt of the
Circuit Court for the District of Ohio.
Sft6*] *The material facts are thi-se: In June,
1830, the plaintifTs in error (who arc citizens of
New York) brought an action of assumpsit in tlie
Circuit Court of Oiiio against one Joseph Har-
ris and Cornelius V. Harris, and at the Decem-
ber Term of the court recovered judgment for
12,818.86 and eoate. In this action the defend-
ant in error became special bail b; recognizance,
tIk., that the Harrises should paj and satisfj
tbe judgment recovered sgsiiiBt them, or render
thcmaelves into the custody of the marslial of
the District of Ohio. In October, 1831. a writ
of capias ad satisfaciendum was issued upon the
■ame judgment, directed to the marKhsl; who,
at the December Term, 1831, returnud that the
HarriSE'S were not to be found. At the same
term the Circuit Court adopted the fallowing
rule: "that if a defendant, upon a capiua, docs
not give sufficient appearance bail, lie shnll be
csmmitted to prison, to remain until di^harged
bj due course of law. But under neither mesne
nor Anal process shall anjr indirjdiisl lie kept
imprisoned who, under the insolvent law of the
State, has for such demand been relenseil from
Imprisonment. In February, lH:tl. Ciiri'iliim
V. Harris was duly discharged from imprison-
ment for all his debts, tmder the insolvent liiw
of Ohio, passed in 1831 ; and in February. 18:4,'.
Joseph Harris was in like manner dischBr^'d.
In December, 1832, the pisinliirs in error 111:11
menced the present action of debt, upon Llie
recognizance of bail, against the defendant in
error, stating, in the declaration, the on<:iiin1
Judgment, the defendant becoming special bitil.
and the return of the execution "not found."
Tbe defendant, among other pleas, pleaded the
discharge of the Harrises under the insolvent
law of Ohio of 1831, and the rule of the Qrcuit
Court, above mentioned, in bar of the action.
The plaintifTs demurred to tbe plea, and, upon
ioiuder in demurrer, the Circuit Court gave
udgment for the defendant; and the present
writ of error is brought to revise that judg-
The question now before this court is, wheth-
er the plea contains a substantial defense to the
action of debt brought upon the recognizance
of special bail. In order to clear the case of
embarrassment from collateral mattera, it may
be proper to state that the recognizance of spe-
cial bail being a part of the proceedings on a
suit, and subject to a reflation of the court,
the nature, extent and limitations of the re.
857*] aponsibility 'created thereby, are to be
decided, not by a mere examination of the terms
of the instruments, but by a reference to the
known rules of the court and the principles of
law applicable thereto. Whatever in the sense
of those rules and principles will constitute a
dlacbergc of the liability of the special bail,
must 1^ deemed included within the purview
of the iiiRtrument, as much as if it were express-
ly stated. Now, by the rules of the Circuit
Court of Ohio, adopted as early as January
Term, 1808, the liability of special bait was
firovided for and limited; and it waa declared
hat^ special bail may surrender their principal
at any time before or after judgment against the
principal, provided such surrender shall be be-
1B«
fore a return of a scire facias executed, or ■
BTond scire facias nihil, against the bail. And
tills in fact constituted a part of the law of Ohio
nt I lie time ivhcn the present recoT;nij^anee wa»
jivcn; for in the Revised Laws of 1823, 1834
{22d vol. of Ohio I^ws, SS), it is enacted that,
subsequent to the return of the capias ad re-
lipondcn^tnm, the defendant may render himaelf
or be rendered in discharge of his bail, either
before or after judgment; provided auch render
be made at or before the appearance day of tb«
(Irst scire facias against the bail returned scire
feci, or of the second scire facias returned nihil,
or of the cnpies ad respondendum or summons
in an actimi of debt against the bail or his rec-
ognijiauce returned served, and not after. This
act waa in force at the time of tht pnsaagc of the
Act of Congress of the 19th of May, 1828. ch.
S8, and must, therefore, be deemed as a part
of the "modes of proceeding" in suits to have
been adopted by it. So that the surrender of
the principal by the special bail within the time
thus prescribed, is not a mere matter of favor
of the court, but is strictly a matter of legal
And this constitutes an answer to that part of
the argument at the bar, founded i:pon the
notion that, by the return of the capias ad satis-
faciendum, the plaintiffs had acquired a fixed
and shHolute ri^ht against the bail, not to be
alfccti-d by any rules of the court. So far from
the right beinj; absolute, it was vested sub modo
only, and liable to be defeated in the eventa
jirescribcd by the prior rules of the court, and
the statute of Ohio above referred to. It is true
that it has been said that by a return of non est
inventus on a capias ad satisfaciendum, the bail
'are fixed; but this language is not [*35S
strictly accurate, even in courts acting professed-
ly under the common law, and independently
of statute. Lord Ellenborough, in Mannin t.
Partridge, U East's Kep. GS9, remarked that
"bail were to some purposes said tobeRxedby
the return of non est inventus upon the cspiaa
ad satisfaciendum; but if they have, by the in-
dul)^nce of the court, time to render the priO'
cipal until the appearance day of the last scire
facias against them, and which they have the ca-
pacity of using, they cannot be considered aa
completely and definitively fixed till that period."
And so much are the proceedings against b*il
deemed a matter subject to the regulations and
practice of the court, that tbe court will not
hesilate to relieve them in a summary manner,
iind direct an exoneretur to be entered in such
cases of indulgence, as well as in cases of strict
right. But there is this distinction — that where
the bail were entitled to be discharged, ex detrfto
juHtiti«,they may not only apply for an exonere-
tur by way of sumntary proceeding, but they
may plead the matter as a bar to a suit in their
defense. But where the discharge is matter of
indulgence only, the application is to the dis-
cretion of the court, and an exoneretur cannot
lie insisted on except by way of motion.
And this leads us to the remark that when
the party is, by the practice of the court, «a-
titled to an exoneretur without a positive aur-
render of the principal, according to the terms
of the recognizance, he is, a fortiori, entitled to
' list on it by way of defense, where he is en-
that whan th« prindpftl would be entitled to an
IniBMdJAt* and uncanditional diKharge, if he
Im4 be«B surrendered, there the bail Kre entitled
to relief Ij entering an exoneretur, without any
■nrrender. Thia wai decided in Mannin v.
Partridge, li East. BOB; Boggt v. Teuiile, 6
Blnn. Bep. 832; and Olcott t. Utty. 4 Johni.
Bep. 407. And, a fortiori, thia doctrine mint
•pplj where the law Drohibita the party from
being imiwiaoned at all| or where, bj the post-
tiva operation of law, a aurrender la prevented.
So tliat there can be no doubt that the present
plea is a good bar to tbe suit, not Wit bits nding
there has been no surrender, if by law the prin-
cipat could not, upon such surrender, liave been
impriaoned at all.
SB**] 'Thia constitutes the turning-point of
tba caac, and to the consideration of it we shall
Dov proceed. In the first place, there is no
doubt that the Legislature of Ohio poeeessed
full constitutional authority to pass laws where-
by insolvent debtors should be released, or pro-
teeted fn>m arrest or imprisonment of their
persona on any action for any debt or demand
due by them. The right to imprison constitutes
no part of the contract, and a discharge of the
person of the party from imprisonment docs
not impair the obligation of the contract, hut
leaves it In full force against his property and
elTecta. This waa clearly settled by this court
in the cases of Sturgea v. Oowninshield, 4 Wheat.
Rep. eOO; and Mason v. Hailc, 12 Wheat.
Rep. 370. In the next place, it is equally
clear that such State laws have no operation,
Goprio vigore, upon the process or proceedings
the courts of the United States, for the rea-
sons so forcibly stated by Mr. Justice Johnson,
In delivering the final opinion of the court in
Ogden V. Saunders, 12 Wheat. Bep. 813, and
by Mr. Qilef Justice Marshall in delivering the
opinion of the court in Waymen v. Southard,
10 Wheat. Rep. I, and by Mr. Justice Thomp-
son in delivering th« like opinion in The Bank
of the United SUtea t. Iblstead, 10 Wheat.
Rep. SI.
Slate laws cannot control the exercise of the
powers (rf the national government, or in any
manner limit or affect the operation of the proc-
ess or proceeding in the national courts.
The whole efficacy of such laws in the courts
of the United States depends upon the enact-
nenta of Congress. So far as they are adopted
by Congress they are obligatory. Beyond this,
they have no controlling influence. Congress
may adopt such State laws directly by a sub-
stantive enactment, or they may conflde the
authority to adopt them to the eourts of the
United States. Examples of both sorts exist
in the national legislation. The Process Act of
1789, eh. 81, expressly adopted the forms of
writs and modes of process of the State courts.
In suits at common law. The Act of 17S2, ch.
3i, permanently continued the forms of writs,
exBcntiona and other process, and the forms and
modea of proceeding in suits at common law,
then in nse in the courts of the United States,
OMler the Process Act of 1789; hut with this re-
■arlcable difference, that they were subject to
•ocb alterations and additions as the said courts
!••*] *re(ipeetively should, in their discretion,
I expedient, or to Bi)ch regulations as the
-m Court of the United States should think
', from tima to time, bj rule ta prascriba
T. H«UQBT«ir. SM
to any drenit or distiM wnrt concerning the
same. The conititutional validity and extent
of the power thus given to the eourts of the
United titatea to make alteratiOM aad additioaa
in the process, as well as in the modes of pro-
ceeding in suits, waa fully considered by tUa
court in the cases of Way man r. Southard, 10
Wheat. Bep. 1; and The Bank of the United
States V. Halstead, 10 Wheat. Bep. Bl. It waa
there held, that this delegation of power 1^
Congress was perfectly constitutional; that the
power to alter and add to the process and modes
of proceeding in a suit, embrace the whole
progress of such suit, and every transactioo in
it from Its commencement to its termination,
and ontil the judgment should tie satisfied, and
that It autboriied tbe courts to prescribe and reg*
utate tbe conduct of tbe officer in the execution
of final process, in giving eflect to its judgmenL
And it was emphatically laid down that "a gen-
eral superintendenca over this subject aeems to
be properly within the judicial province, and
lias always been so considered;" and that "thia
provision enables the courts of tin Union U>
make such improvements in Its forms and
modes of proceeding as experience may suggest,
and especially to adopt such State laws on thia
subject as might vary to advantage the forms
and modes of proceeding which prevailed in
September, 1789." The result of this doctrine,
as practically expounded or applied in the easo
of The Bank of the United SUtes v. Halstead,
is that the courts may by their rules, not only
alter tbe forma, but the effect and operation of
the process, whether mesne or final, and the
modes of proceeding under it, so that it may
reach property not uable, in 1780, by the Btata
laws to be taken in execution, or may exempt
property, which was not then exempted, but
has been exempted by subsequent State laws.
If, therefore, the present case stood upon th*
mere ground of the authority conferred on th«
courts of the United States by the acts of 178ft
and noi, there would seem to be no solid ob-
jection to the authority by the Grcuit Court of
Ohio to make the rule referred to in the plead-
ings. It is no more than a regulation of tbo
modes of proceeding in a suit, in order tooon-
form *to the State law of Ohio passed in [*3<l
1831 for the relief of insolvent debtors. A regula-
tion of the proceedinga upon bail, bonds and
recognizances, and prescribing the conduct of
the marshal in matters touching the same, seema
to be as completely within the scope of the
authority as any which could be selected.
But in fact the present case doea not depend
upon the provisions of the acts of 1799 or 1792,
but it is directly within and governed by the
Process Act of the I9tb of May, 1B28, eh. 68.
That act in the first section declarea that
the forms and mesne process and the forms and
modes of proceeding in suits at common law In
the courts of the United Statea, held fn
States admitted into the Union, since 1789 (as
the State of Ohio has been), shall be the same
in each of the said States, respectively, as were
then used in the highest court of original and
general jurisdiction in the same; subject to
such alterations and additions as the said court*
of the United Statea, respectively, shall, in
their discretion, deem expedient, or to aueh
regulations as the Supreme Court shall thinlc
ptopn from tins to tiaie, by rulea, to prescribe to
SuntEMB CouBT OF THK UniTB) BTAna.
18a»
knj circuit or district court concerning the same.
The third section declares that writs of execu-
tion and other flnal process issued on judgments
and decreet rendered in any courts of the
•re DOW used in the courts of such State,
Provided, however, that it shall be in the power
of the courts, if they see (It in their discretion, hj
rules of court, eo far to olter final process in
such courts, as to conform the same to any
change which may be adopted by the Le^sia-
ture of the respeetiva Slate, for the State
Tiiis act was made after the decisions in
Wayman v. Southard, and The Banit of the
United States v. Halstcad, 10 Wheat. 1 and 61,
and was nsnifestly intended to conSrm- the
construction given in those cases to the acts of
1789 and 17fi2, and to continue the like powers
in the courts to alter and add to the processes,
whether mesne or final, and to regulate the
modes of proccpdin)^ in suits and upon pro-
cesses, as had been held to exist under
those acta. The language employed aeems to
hiive been designed to put at rest all future
doubts upon the subject. But the material con-
eideTnfion now to be taken notice of, is that the
302*1 'Act of Ig2S expressly adopts the mesne
processes and modes of proceeding in suits at,
common law then existing in the highest State
courts under the State laws; which, of course,
included all the regulations of the Stats laws
«■ to bail, and exemptions of the party from
arrest end imprisonnient. In regard also to
writs of execution and other flnel process, and
"the proceedings thereupon," it adopts an
equally comprehensive language, and declares
that they shall be the same as were then used in
the courts of the State. Now, the words "the
proceedings on the writs of execution and
other final process," must, from their very im-
port, be construed to include all the laws which
regulate the rights, duties and conduct of ofS-
eers in the aervice of such process, according to
its exigency, upon the person or property of
the execution debtor, end also all the exemp-
tions from arrest or imprisonment under auch
process created by those lawa.
We are then led to the inquiry: What were
the laws of Ohio in regard to insolvent debtors
at the time of the passage of the Act of 1S28T
By the Insolvent Act of Ohio, of the 23d of
February, 1824 (Lawa of Ohio, Revision of
lg24, vol. 22. sec. 6, 9, p. 327, 326), which con-
tinued in force until it was repealed and super-
seded by the Insolvent Act of 1831, it is pro-
vided that the certificate of the commissioner
of insolvents, duly obtained, shall entitle tlie
insolvent, if in custody upon mesne or final
process in any civil action, to an immediate
discharge therefrom, upon his complying with
the requisites of the act. And it is farther
provided that the final certificate of the Court
of Common Fleas, duly obtained, shall protect
the insolvent forever after from imprisonment
for any suit or cause of action, debt or demand
mentioned in the schedule given in under the
insolvent proceedings; and a penalty is also in-
flicted upon any aherilf or other officer who
should Icnowingly or willfully arrest any person
contrary to this provision. The Act of TgSl
(I.awa of Ob)*, BaviaioB of 1831, voL S8, aao.
16S
21, SB, p. 333, 336), eontaina a similar fn-
vision, protecting the insolvent under lilce ofr-
Bumstances from imprisonment, and matcins
the sheritr or other officer, who shall arrest him
contrary to the act, liable to an action of tres-
pass. Now, the repeal of the Act of 1824, by
the Act of 1831. could have no legal eticct U>
rhangc the existing forms of mesne or final
process, or the mode of proceeding thereon its
the courts *of the United States as [*3S»
adopted by Congress, or to vary the powers of
the same courts in relation thereto; but the
same remained in full force, as if no such re-
peal had taken place. The rule of the Circuit
Court is in perfect coincidence with the Stat*
laws existing in 1828; and if it were not, tlis
Circuit Court had authority, by the very pro-
visions of the Act of 1828, to make such a rule,
as a regulation of the proceedings upon final
process, so aa to conform the same to those of
the State laws on the same subject.
Upon these grounds, without going into a,
more elaborate review of the principles appli-
cable to the case, we are of opinion that the
judgment of the Circuit Court was right. Mid
that it ought to be affirmed with coats.
Mr. Justice Thompson, dissenting:
This is the first time this court has been called
upon to give a construction to the Act of Con-
gress of the IQth of May, 1828. (Sess. Laws, 56.)
And the rules and principles adopted by the
Circuit (3ourt, and which appear to be sanc-
tioned by this court, when carried out to their
full extent, appear to me to be such an innova-
tion, upon what has been heretofore understood
to he the law by which the courts of the Unit-
ed Statea were to be governed, as could not
have been intended hy Congress by the Act of
1828. It is giving to the courts the power, by
rule of court, to introduce and enforce State
insolvent systems.
It authorizes the courts to abolish all remedy
which a creditor may have against the body of
hie debtor who has been discharged under a
State insolvent law. And if the courts hava
this
e powi
, and to exempt all property acquired
ifter the discharge of the insolvent from the
payment of his antecedent debts, if such be
the State l«w. The act is general, extending to
writs of execution, and all other final proceaa.
And in addition to this, it altera the whole law
of remedy against bail in such cases. A capiaa
ad satisfaciendum against the principal is an
indispensable preliminary step to a prosecution
against the bail) and if the court has a right
to order that no capias ad aatis faciendum shall
be issued, it is taking from the creditor all
remedy against the bail. To say that an execu-
tion may be talcen out, but shall not be exe-
cuted upon the party, ia a mere moclcery of
'justice. The constitutionality of the [*SC4
insolvent law of Ohio is not drawn in question;
and whether as a measure of policy. It ia not
wise to abolish imprisonment for debt, ia not *
question which we are called upon to decide.
As between tlie citiiens of Ohio, and in their
wisdom of their
Legislature may (fictate. But the present is a
mestion between the citisens of that State and
!b« eitiiena of another State. And that made
rmtm ».
J <nctate
IS3ft
Behu n al. t. Hauobtdh.
SH
tbe great and 1«a ling diBtinctfon adopted bj
this court in tha case of Ogilen t. Saundere, 12
Whraton, 213. And, indeed, it wai the verj
point upon which tbat eauM turned. And if
Uw practical operation of tlie Act of 1826 ia to
be what i( now sanctioned bj' this court, it is
certainly overruling that decision. So far as
that goes, 1 can have no particular objection,
a( 1 was in the minority in that case. But tbie
caaa involves other important considerations.
It is an action brought b; citizens oC the State
of New York against citizens of tha State of
Ohio, upon a recognizance of bail. Tbe plead-
ing ID the cause terminated in ademurrer to tbe
plea, and the judgment of the court sustained
the validity of the plea, and defeated the plain-
tiffs' right of recovery. A brief statement of
the facts as disclosed by the record will aid in
a right understanding of the questions that are
K resented for consideration. The defendant
Jchard Hs ugh ton became special bail for
Joseph Harris and Cornelius V. Harris in a suit
capias ad Batiafaciendum was issued against
them on the judgment which had been recov-
ered for $2346.&U. This capias ad satisfacien-
duoi was returned "not found," at tbe Decem-
ber Term, 1831, ot the Circuit Court. This
execution, it ia to be presumed, was returnable
on the first day of the term, which is
to the ordinary course of proceedings.
At the same December Term, lB3t, the rule
of court set out in tbe plea was adopted, wbicb
coders and directs that no person, either under
mesne or final process, shall be kept in prison,
who, under the insolvent law of the State, has
for such demand been released from imprison-
SBBDt. The pica alleges that Cornelius V. Har-
ris, one of the defendants in the original suit,
waa, at the February Term, 1631, of tha Court
SS5*] of Common 'Pleas for Hamilton
County, in the State of Ohio, ordered and ad-
judged to be forever thereafter protected from
an«et or imprisonment for any civil action, or
debt, or demand, in the schedule of his debts
delivered to the comniiesioner of insolvents,
taaoBg which waa the judgment above men-
tiaae£ The plea also alleges that a like dis-
charge was given to the other defendant, Joseph
Harris, at the February Term, 1832, of the same
court. So that it appears that the rule of court,
and the discharge of one of tlie defendants,
took place after the bail waa fixed in law by the
return "not found" upon the ca. sa. against
the drfendanta in the original suit. Afl against
Joseph Harris, therefore, a retrospective effect
has been given to his discharge, and • vested
legal right of the plaintiff thereby taken away,
upon this demurrer to a special plea, founded
upon a particular rule of court specified in the
pies, it cannot, f should think, be claimed that
other rules of court have the notoriety of pub-
lie lavs, which the court is bound judicially to
Icnow and notice. Was the bail under these
eircnmatsncea discharged! and could such mat-
l«n be set up by way of ptea in bar to the
lireseDt action against the bail, are the questions
to ba considPred?
In the case of Ogden r, Saunders, the par-
tiea, B» in the present case, were citizens of dif-
ferent States, and the decision of the court
was, that as between parties »f different States,
the State insolvent laws had no application.
Mr. Justice Johnson, who delivered the opinion
of tbe court, uses very strong language on this
point, and which cannot be misunderstood. "All
this mockery of justice," says he, "and tbe
jealousies, recriminations, and perhaps retalia-
tiona which might grow out of it, are avoided, If
the power of the States over contracts, after they
become the subject exclusively of judicial cogni-
zance, is limited to the controversies of their own
citizens. And it does appear to cat almost in-
controvertible that the States cannot proceed one
step farther without exercising a power incom-
patible with the acknowledged powers of other
States, or of the United SUtes, and with the
rights of tlie citicena of other States. Every
bankrupt or insolvent system in the world
must partake of the character of a judicial in-
vestigation. Parties whose rights are to be af-
fected are entitled to a hearing. But on what
principle can a citizen of another State be
farced into the courts of a State for this inves-
tigation? The judgment to be passed is to
'prostrate his rights; and on the sub- [*36S
ject of these rights the Constitution exempts
him from the juriiidiction of the State tribu-
nals, without regsrd to the place where the con-
tract originated. In the only tribunal to which
he owes allegiance, the State insolvent or bank-
rupt laws cannot be carried into effect. They
have a law of their own on this subject. Act of
1800, 3d vol. Laws U. S. 301. The Consti-
tution has constituted courts professedly inde-
pendent of State power in their judicial course;
and yet the judgments of those courts are to be
vacated, and their prisoners set at large under
the power of the State courts or of the State
laws, without the possibility of protecting them-
selves from its exercise. I cannot acquiesce in
an incompatibility so obvious. No one has ever
imagined that a prisoner in confinement, under
process from the courts of the United States,
could avail himself of tlie insolvent laws of
the State in which the court aits. And the rea-
son is tbat those laws are municipal and pecul-
iar, and appertaining exclusively to the exer-
cise of State power, in that sphere in which it
is sovereign; that is, between its own citizens,
between suitors subject to State power exclu-
sively, in their controversies between them-
selves." And in conclusion, he sums up the
argument by saying tbst "when In the exer-
cise of that power (passing insolvent laws),
"the States pass beyond their own limits, and
the rights of their own citizens, and act upon
the rights of citizens of other States; then
arises a conflict of sovereign power, and a col
lision with the judicial powers grafted to the
United States, which renders the exercise of
such a power incompatible with the rights of
other States, and of the Constitution of the
United States."
I have been thus particular in quoting the
very language of the court, that it may speak
for itself. And that it was adopted in its full-
est extent is evident by what frll from the court
in the ease of Boyle v. Zacharie A Turner, 9
Peters, S4S. "The ultimate opinion," say
the court, "delivered by Mr. Justice Johnson
in tlie case of Ogden v. Saunders, was concurred
in and adopted by the three judges who were
in the minority upon the general question
of the eonatltutlonality of tha State insolvent
SuFSBHB CouiT or THE Unite) Statis.
ISSfi
Uwi, w Ikrgelj dtvciused In that eaae. It la
proper to mnke this remark, in order to remove
an erroneous impreHsion of the bar that it was
hi* single opiniOD, and not of the three other
36T*] 'judges who concurred in the judgment.
So far, then, as deciiiions upon the subject of
State insolvent laws have been made by this
court, thef are to be deemed final and conclu-
sive." The dectiion, in that case, turned ex-
clusively upon the point that State insolvent
laws did not apply to suitors in the courts of
the United States. And the emphatic language
is used, "no one has ever imagined that a pris-
oner in confinement under process from the
courts of the United States, could avail him-
self of the insolvent laws of the State in which
the court sits." Apply this principle to the
case now before the court. A capias ad aatis-
faciendum was in the hands of the marshal
against the Harrises, the defendanta in the orig-
inal suit. Suppose the marshal had arrested
them (as was his duty to do, if they could be
found) and put them in confinement. No one,
say the court, could imagine that they could
■vail themselves of the State insolvent law.
But that is the very thing which the plea in
this case does aet up, nnder the authority of
the rule of court, that no one shall be kept Im-
prisoned who has been discharged under the
insolvent law of the State; and it la the very
thing that baa proved available to deprive the
plsintilTB of a recovery in this case.
The case of Boyle v. Zacharie & Turner was
decided in the year 1632, and the enacting
(dauae of the Act of Confess of 1828 could
not have been supposed to change the prin-
dple* adopted in Ogden v. Saunders. If that
Mrt is to govern and control the ease now
before the court, it must be by virtue of the
rl]l« which has been adopted by the Circuit
Oourt of Ohio. What Is the law of 1828T It
declares that "writs of execution and other
ftnal procese, Issued on judgments and decrees
rendered in any of the courts of the United
States, and the proceedings thereupon, shall be
the same, except their style, in each State, re-
spectively, as are now used in the courts of
such State, etc., provided, however, that it
shall he in the poiver of the courts, if they see
fit in their discrption, by rules of court, so far
to alter the final process in said courts as to
conform the same to any change which may
be adopted by the Le<{islatiires of the respect-
ire States for the State courts." A capias ad
satisfaciendum was an execution in use in tbe
courts of the State of Ohio, in the year 1628,
when the act in question was paased. It was,
therefore, adopted as a writ to be UMd in the
courts of the United States.
368*] 'But It is said that the act adopts,
also, the proceedings thereupon. It does so.
But what is to be understood by proeeedingst
Oan this in any just sense be satisfied by pro-
hibiting all proceedings on the execution T Pro-
ceedings, both in common parlance and in legal
acceptation, imply action, procedure, proaecn-
tlon. And such is the explanation gj^en to the
t«rm proceedinzB, in the case of Wayman v.
Southard, 10 Wheaton, I. "It is applicable,"
aaj the court, "to writs and executions, and is
applicable t« every step taken in a cause. It
indicntrs the protrresslva course of the business,
from it* comnencemcnt to its terminatian." if
it Is a progreiaiva course It must be advancing,
and cannot be satisfied by remaining at rest.
In the esses of Wayman v. Southard, and The
Hank of The United States v. Halstrad, ID
Wlicaton, this term proceedings was applied
to the mode and manner of executing the exe-
cution in the progress of obtaining satisfaction;
and tbe power of the court under the Process
Act of 1792, to alter and add to tbe execution
by extending it to lands. But no part of these
cases contains an intimation that proceedings to
obtain satisfaction implies or warrants an arrest
and stopping all execution whatever of the
process. If the enacting clause in this act does
not forbid the execution of the cnpias ad sntis.
faciendum, as it certainly docs not, could it be
done by a rule of the court under the provisoT
I think it could not. The proviso does not au-
thorize any rule relative to the proceedings In
tbe cause. Tha term is not usimI at si). It only
authorizes the court so far to alter final process
as to conform the same to that used in the State
courts.
The rule set up in this plea does not make any
alteration whatever in the execution. That re.
mains the same precisely as it was before, and it
only forbids the effect and operation of it. And
if the rule is to be considered a part of the exe-
cution, and to be taken as if incorporated in the
body of the writ, it would present a very sin-
gular process, commanding the marshal to take
the body of thr defendant, but forbidding him
to keep the prisoner in conrinement. Such in-
congruity cannot be attributed to this proviso.
The rule, I think, is not authorized by this
statute, and especially as it was sdopted after
the bail was fixed in law, by the return "not
found," upon the capias ad satisfaciendum is-
sued against the principals. That such a re-
turn 'fixes the bait, is a settled rule of [■*•#
the common law. Courts have, ex gratia, ex-
tended the right to surrender until the return
of the writ or process against the bail; and
perhaps in some instances tha right to surren-
der has been extended to a later period. Out
the contingency of not being able to make the
surrender after the return of Che capiss ad sat-
isfaciendum "not found," is at tlie risk of tba
bail. And the relief of the ball in such cases
is on motion, addressed to the favor of the
court; and relief is granted, upon such terms
as the circumstances of the case will warrant,
and always upon payment of the cost of the
suit against b«il. No stronger case upon this
point can be put than that of Davison v. Tay-
lor, decided in this court (12 Wheston. SM).
"This," say the court, "Is a case of bail, and
is to be decided by the principles of English
taw, which, the case finds, constitute the law
and practice of Maryland on the subject. Ae-
cording to these principles, the allowance of
the bail to surrender the principal after the re-
turn of a capias ad satisfaciendum, is considered
as matter ot favor and indulgence, and not of
right; and ia regulated by the acknowledged
practice of the court. To many purpose* the
bail in considered as Sxed by the return of the
capias ad satisfaciendum; but the court allow
the ball to surrender the principal within a lim-
ited period after the return of the scire faeia*
against them, aa matter of favor, and B>t «a
matter pleadable In bar. In certain cases erea
a forauU tunender ha* not been required, whao
1S» BlEXHS R
Um priadpftl waa itiU living *nd etpabli
being lurrendered, *nd an exoneretur could be
entered uid the principal diacliarKed Immedi-
ately on the Buirenderi but the rule has never
been applied to cases where the principal diei
before the return of the soire facias. In such a
<*ae the bail ia considered as Hxed by the re-
turn of the capiaj ad satiBfaciendum, and his
death afterwards and before the return of the
•cin facia* does not entitle the bail to an ezon-
areturi the plea ia therefore bad."
This case would seem to put at rest the ^uei-
tion as to the manner in which the bail ii to
avail himself of anjr matter which entities him
to relief, when application ie made alter the re-
turn of the capiaa ad eAtisfacieadum — that it
must be hj motion and not bj plea in bar. But
if this waa pleadable, the plea now in question
is defective. It does not allege a surrender of
the principals, or toat an exoneretur has been
STO*} entered. *It ma; be admitted that the
bail would have been entitled to relief, on mo-
tion to the court for that purpose. But this
will not sustain the plea, according to the doc-
trine of the case just referred to, of Davison v.
Taylor. But it may be questionable whether
the bail would have been relieved in thie caM
on motion. Such an application is seldom if
erer granted, unless the matter upon which the
motion is founded arose before the bail is fixed
Id law, viz., before the return of the capias ad
aatiafadendum. 1 Cainea' Bep. 10. In thlt
ease one of the principals wm not discharged
until several months after the return of the
capias ad satisfaciendum. And this appear*
upon the record. In the case of Olcott v. Lilly,
4 Johns, 408, Chief Justice Kent says there
ia BO c«se in which tile death of the principal,
after the return and filing of the capiaa ad aat-
iafaeiendum, has been allowed as ground for
the relief of the bail. All the cases agree that
after the bail are fixed, de jure, thev take the
riak of the death of the principal. The attempt
for relief haa frequently been made, and as
often denied. That the time which ia allowed
the hajl, ax gratia, ia at their peril, and they
must aurrender. That there are many cases
■here the bail has been relieved on motion.
But, in these casee, the event upon which the
bail haa been relieved happened before the bail
became fixed. That, in cases of insolvency,
time haa been allowed by bail, ex gratia, to sur-
render, to prevent circuity ' " '
lowed ex gratia, according to the language of
all the rases, is conclusive to show that It could
not be pleaded as a legal discharge of the hail.
Id the case of Chatham v. Lewia, S Johns.
1C0, the sorrender was within eight days after
the return of the writ against the bail, and the
court ordered an exoneretur; saying that, tech-
nically speaking, such surrender cannot be
pleaded, and so is not de jure. The relief is
E to be paid. The same doctrine is fully
settled in the English eourta. In the ease of
Donally v. Dunn, 1 Bo*. 4 Pull. 448, the posi-
tion ia l»id down broadly that bail cannot
plead the bankruptcy and certificate of their
nindpal in their own discharge. Lord Eldon,
htfwrw, ofaaoTod that they did Mt nte«ui to
the part of the 'bail. The same case ['STI
came ugain before the court, after leave to
amend the plea had been obtained (2 Bos. &
Pull. 45), and was very analogous in its cir-
cumstances to the one now before thia court.
It was an action of debt on recognizance of
bail, and the defendant pleaded the bankrupt-
cy of the principal, very cireiimataiitially. To
which there waa a gei]pral demurrer and joinder.
In support of the plea it was contended, aa
it has been in the case now before the court,
(hat if (he bankruptcy and certiHcate was a
legal dlscliarge of the principal, it was also a
legal dischiirge of the bail, and if so, may be
pleaded. To this it was answered that the
Elea of bankruptcy could only be interposed
y the bankrupt Umaelf, and the bail, if en-
titled to any relief, must obtain it by applica-
tion to the Bunimary jurisdiction of the court.
And this principle was sanctioned by the court.
Ijord Eldon Raid, we do not mean to preclude
any application for eummary relief on the part
of the bait. But on this record judgment
must be given tor the plaintiff. That the plea
of bankruptcy is given to the bankrupt, to l>e
made use of as the means of discliarging him-
self If he please. But there may be cases in
which the bankrupt may not choose to make
use of hia certificate. And he cannot, through
the medium of his bail, be obliged to make use
of his certificate, whether he wilt or not. It is
the duty of the bait under their recogni7Jince
to surrender the liankrupt, and it remains with
the bankrupt himself to determine whether any
use shall be made of the certificate. And Mr,
Justice Bullcr observed that it ia of importance
questions of practice, which cannot be conald-
ered as legal defenses; but which belong to
what may be called the equity side of the
court. This action ie brought for a legal de-
mand, arising upon a debt of record, and the
defendant is called upon to state a legal defense
upon record, and not merely to say he has
equity in his favor. He must either show a
legal impossibility to perform the condition of
the recognizance, or state something that will
discbarge him; and he has done neither. These
abundantly sufficient to show that it
settled rule of law that the bail can-
not set up by plea in bar the matter contained
n the plea now in question. But if available
'at all, it must be ny motion. It is [*STS
true, aa is said in Mannin v. Partridge, 14 East,
SQ9, the bail are not completely and deflnitivety
fixed, by the return of the capias ad satisfaci-
endum. They have, by the indulgence of the
court, time to surrender the principal, until the
appearance day of the last scire facias. But
this was an application for relief on motion,
and addressed to the favor and indulgence of
the court, and no intimation is given that it
light be pleaded as matter of right. And It
not, I believe, pretended that any rute of
court had or could authorize such matter to be
pleaded. The relief of bail by the surrender
of their principal is matter of practice, and
may be regulated by rules of court. And the
acts of the Legislature of Ohio or the decisions
of their courts on this subject, can have no
Uoding forcB OH the eourta of the United
an
buptua CoDiT or thb Uiirrm SrATca.
State*, or regulate their practice, anj farther
thao they liave been adopted by the court.
And 1 do not understand that an; rule of the
Circuit Court profeases to do more f-- - ■
the time for trie Burrender, until the
of a second scire fai^ias againat the bail. liut
the mode of relief after the bail are fixed in
law, must be b; an application to the favor of
the court, and cannot, if the cises to which !
have referred by law, be pleaded in bar. Tin
caies of Wayman v. Southard, and The Bank'
of the United States t. Halstead, 10 Wheaton,
established, most clearly and explicitly, that a
State Legislature cannot, bv virtue of any orig-
inal. Inherent power they have, arreat or con-
trol the proceedings of the courts of the United
States, or regulate the conduct of the officers
of the United States in the discharge of their
duty. The doctrine of this court always haa
been that executions issuing out of the courts
of the United States are not controlled or con-
trollable in their general operation and effect,
by any collateral regulations which the State
laws have imposed on the State courts to gov-
ern them. That such regulations are exclu-
■ively addressed to the State tribunals, and have
no efficacy on the courts of the United States,
unless adopted under the authority of the laws
of the Umted States. And it appear* to me
that by no sound and just construction of the
Act of Congress of 1828, can the insolvent law
of Ohio be considered aa adopted by it,
87S*] Ogden v. Saunders, "nor with<
ing to the term proceedingsameaningnot war-
ranted in common parlance, or in legal accepta-
tion. But whatever might have been the pow-
er of the Circuit Court to relieve the bail in
this case, OD motion, if such application had
been made, I feci great coniidence in saying
that the bail cannot avail himself of the mat-
ters set up, by way of plea in bar to the action,
and that the plaintiff was entitled to Judgment
upon tlio demurrer.
Hr. Justice Baldwin, disaentlng.
Aa I fully concur In opinion with Judge
Thompson, in all the views which he has taken
of this case, it would l>e unnecessary for me to
do more than express such concurrence; but
the course of adjudication irhich haa prevailed
In the Circuit Court of Pennsylvania on the
subject of the insolvent laws of the States of
this Union, since April, 1831, renders it indis-
penaahle for me to do more than declare my
dissent from the opinion of the court. In the
case of Woodhull & Davis v. Wagner, the de-
fendant had been discharged by the insolvent
law of Pennsylvania', after which he was ar-
rested on a capias ad satisfaciendum from the
Circuit Court, on a judgment obtained there.
An application was made for hia discharge,
which was refused by the court, and he was re-
manded to custody, on the ground that the
debt, being payable in New York, and the
plaintiffs citir«nB of that State when the debt
was contracted and wheb the defendant was
discharged by the insolvent law of Pennsyl-
vania, such discharge was wholly inoperative.
Simtlar cases have since occurred in which that
111
court have held the law to be settled, and 4*
not suffer the question to be ar^jurd.
Ja coming to, and for four years adheriug t«
this course of adjudication, the judges of that
court did not act on their own opinion; they
considered the law to have been sottled by llie
final judgment of this court in Ogilen v. Saun-
ders, 12 Wheaton, 213; and the case of Rhaw
V. Robbins, referred to in the note to the case;
and as the rule on which we proceeded waa
laid down by the authority of this court, wa
felt bound to observe and enforce it, whatever
may have been our views of It aa individual
judges, or as a circuit court.
Hut In so doing, wb did not consider it as a
question of practice, 'the form and ['SJ4
mode of proceeding in court, or the mere exe-
cution of its Anal process. We examined it aa
one of constitutional law, directly involving
the power of the States, to alTect in any man-
ner the rights of citizens of other l^tates, in en-
forcing the performance of contracts in the cir-
cuit courts of the United States. And when
we found that the third proposition laid dowm
by Judge Johnson in Ogden v. Snumt.'rs w«a
considered aa the established rule of thia court,
we at once aubtnitted to its obligat>jn as a guida
to our judgment- The declaration of Jiid^
Story, in delivering the opinion of the court in
Boyte V. Zacharie t Turner, 6 Peters, M.I. was
a direct afHrmance of the proposition of Judga
Johnson, from which no member of the court
dissented, nor from the concluding paragraph
of the sentence; "So far, then, aa decisions
upon the subject of State insolvent laws have
been made by this court, they are to be deemed
final and conclusive."
The third proposition of Judge Johnson,
thus adopted aa a principle of constitutional
law, finally and conclusively, )■ thia:
ut when, in the exercise of that power,
the States pass beyond their own limits and the
rights of their own citizens, and act upon the
rights of citizens of other States, then arises •
conflict of sovereign power, and a collision with
the judicial powers granted to the United
States, whith renders the exercise of such «
power incompatible with the rights of other
States and with the Constitution of the United
States."
more important principle of constitutional
vas never presented for the consideration o(
any judicial tribunal; and when, three years
lince, it was solemnly declared by thia court that
it was to be deemed as one which bad become by
its decisions final and conclusive, the Circuit
Court of Pennsylvania did not feel at liberty
to depart from it, but followed it as a pre-
scribed rule enjoined on th^ir observance^ by
paramount authority, deeming it their judicial
duty. That court could not consider that th*
effect of a discharge by the insolvent law of
Pennsylvania, on • debt due to a citizen of
(few York, and payable there, depended on ft
'iile of court which it could make and unmake.
It its discretion, from time to time, as a matter
of practice.
With the cases of Ogden v. Saunders, Shaw v.
Robbins, and Boyle v. Zacharie i, Turner, befora
them, they could not judicially "consid- ('STS
er the question In any other aspect than that so
solemnly declared by this court; presenting »
Pet«r« •.
1S4»
Thb Bauk or ram Umted Statu v. WAoaxfiEB r tu
ni
Judicial power* of the
of ft State power fncompalible with the rights
of other States, and with the Constitution of
the United States. When the final and conclu-
■irs decisioiu of this court had declared the
law obnoxious to such objections, the Circuit
Court bad but one courae to pursue— to derlure
it inoperative by the supreme law of the land;
which is as imperative on courts ae suitors, not
a* a guide to their discretion, but as the stand-
ard nils to direct their judgment.
A circuit court ma; be holden by a judge of
this court, or in his absence by the district
Judge alone, and either has the same power to
make rules of court, as both together. The
question is simply this: The Conslitution — the
nghta of other States^the judicial power
panted to the United States as declared by this
court, are violated \ij a State insolvent law.
Tet a circuit court adopts, by a rule of ita own,
that SLite law as the rule of its decision, and
renders a judjinient according to ita provisions;
and this ia ttic rase before us. The plaintiffs
are citiiena of New York, the defendants citi-
tens of Ohio, sued in the Circuit Court of that
district; by whose jud^^ent the defendant is
fclea^ed from the obligation of his contract, as
•pecial bail, solely by the operation of a law of
Ohio, adopted by a rule of court, when, in the
absence of such a taw, he would be absolutely
bound to pay the debt demanded from him.
That judsment is now alTirmed by this court,
on their construttion of acts of CouRress, whoae
titles are, to refrulate processes in the courts of
the United States, and the enacting clauses of
which are con lined to the "forma of mesne
proceSB," the forms and modes of "proceedings
ID the courts of the United States," to writs
and
K law which
legislative pou it of a State is incompetent to
pass bocause it is unconBtitutional and void,
without a rule of court, has become valid and
op-rative by the polency of judicial power, ex-
ercised by any judge at his mere discretion.
Tims removing all conflicts of sovereign power
bj the exercise of one, which becomes practi-
cally paraniount to the final and conclusive de-
eJMona of this court, the rights of other States,
and the Conxtitution of the United States, as
SIS*] 'judicially expounded. The judgment
■ow rendered admiis of no other conclusion;
and aa I cannot admit for a moment the princi-
ple that the power of Congress, if brought to
bear directly by its most explicit, enactments on
tbis subject is competent to cure the objections
to this law which arc fastened on its vitals by the
adjudications of this court in the cases alluded
to. I cannot admit that they can do it by the
eonstniction of a law which does not profess to
touch the questions necessarily involved in this
oiae; atill lesa that it can be done by the rule
of a cniirt aubordinate to the appellate jurisdic-
tion of this.
If a State law Is fncom pat ibis with the Con-
stitution of the Union, it tnust be inoperative
till the Constitution is amended. The legislat-
ive and judicial power combined cannot cure
a d«fert which the supreme law of the land de-
riare* to be fatal to a State law; and when, by
tlM aolnnii jndsraeiit of this court, it ia declared
• ii.«d.
that a State law, adopted by a ruTe of tke Or-
cult Court, is the rule of both right and remedy
in a suit between a citizen of New York, plain-
tiff, and a citizen of Ohio, 1 am judicially bound
to consider that it ia not open 10 auy objections
stated in the third proposition of Judge John-
son in Ogden v. Saunders, or that that case,
with that of Shaw v. Robbins, and Boyle t.
Zacharie & Turner, are now overruled. As th«
case on the record does not admit of the Dret al-
ternative, but is directly obnoxious to those ob-
jectiona, the inevitable result is that the afErm-
ance of this judgment must be taken to be the
latter. The consequence is that the effect of
State Insolvent laws on the dtiiens of other
States is, for the present, an open question in
the courts of the States and of the United
States, notwithstanding any former decisions of
this court in the cases referred to. So I shall
consider it here and in the Circuit Court, and
answer to the profession and suitors for past
errors, aa those of adoption, not from choice,
but a sense of judicial duty; and being now
absolved from an authority heretofore deemed
binding, shall act for the future on principle.
That a paramount authority prescribing a rule
for my judgment, cannot leave my discretion
uncontrolled; when my judgment is free, my
discretion Is not bound; and that what, in the
Gxerciae of my best judicial discretion, I feel
bound to do in pronouncing the judgments
of a Circuit Court, according to my deliberate
conviction on the law of the case, I cannot
undo or avoid doing, by any 'rule of [*S7T
my own, in the adoption, construction or revo-
cation of which, my discretion is my only
This cause cams on to be heard on the tran-
script of the record from the Circuit Court of
the United States for the District of Ohio, and
was argued by counsel; on consideration where-
of, it is ordered and adjudged by this court
that the judgment of the said Circuit Court in
this cause b^ and the same la hereby affirmed
with costs.
the BsDk of the dBlted Ststes at
tuckv. In I'YUniarT. 1H23. held a
* ■ ~ i ot Kentucky,
it tbe fnit V
I the I
On IM
L. eil I-.
As la laUlnE Inti
0 u ed. u. s. esi.
ji
B tbe face of
ki to DSarr, see Dole to 2 L. ed. D. B.
net as to defense ot usnrr, see note to 9
*. MS.
or laws as to usiir;, see note 10 SS L.B.
Id BdvaDce. see not* to
SUPBSMI CoUHT OF THC UniTHk SlATM.
them. II caulTiIcnt to cold and k:
cotnldered bi tbe biDk. "~ •*-
notes so held, tr "- '
_. __ .__ t ot thetie
k of Kenluckj hud Igreed In
Ihe ume nhoiild be redeemed. All the autea'of the
Bank of Kf-nCucky. held t>; the Bank of tbe Uolti-d
BtatH. were daallT pild with the latereit. In
Februarr. 1S22. when the notei or the B&Dk o(
KeatiiFkr wen at a depi-eclitlon of Iwlwrwh thirty-
three iDd terlj p«r wnt.. Owens applied to the
olTlce of [be Bank ot the United States tor a loaa
ot tS.OOO oF ttie uld notes, saving thv; would an-
repeated refusalii and re-appllcatloni
United 8
of the board ot dim
■ ot the Uaak ot t
to him on a promlasori noie signed bj him,
Waeger.er. Miller and Wagley. pijable In tbrei
years wiib Interest, at the rale of^sfi per cent, pei
Ih I check on that bank; lad the Inlerest on tlial
amount ot the notes, being so much ot the sum due
b; Che BBtik ot Kentuckr to the Rank of the Unit-
ed BtutcB, ceased from tfie dale ot the loan. In an
detenu set up wu that the transaction was 'usu-
rious, contrary lo the charter nf the Bank ot the
United Slates, and rold. Held, that tbere wai no
usury lo the transaction.
The sCntute ot usury of Kentuctiy of 1T98 de-
clares that all bonilH, notes, etc., tnken tor tbe Iobd
C than sli per cent., shal! be void.
c:,
ig, out s* ■ reservallon of more thao IcbuI 1
clarei
does not (
tradlne. In loe prec<
■ccordlns to tbe li
this court Id the cs
the United States, :
Rep. 4(iT. to wlUcb
The words o1 the
not take (not. shall
tlon Ot statutes ot
8T»*) the reservall
the
ar that the present tisn^sctlon
In the prohibition of doBllns or
ceding part at tbe same article:
Interpretation thereof given by
ase of t'leckner v. The Bank of
8 Wheaton, 3»S, SSI; B CoQd.
r, tbe court dc]il>erBtcly adhire.
:. that tbe bank shall
e of The Bank ot the United States
T. Utveni. S Peten, S2T. 638, It wa* said that In
tbe cbarter the word "reserrlng" tnust be Implied
lu the word "latins" This eipresilon of opinion
wsi not called tor by the certified gnestlon which
arose out ot the plea ; for It was eipressi/ arerred
in tbe plea, that In pursuance ot the corrupt and
onlawful agreement therein stated, the bfrnt ad-
vanced and loaned the whole consideration ot the
jntlnes
nt. In
._„ -_ , - and the
agreement corrupt: and tbe question there was
wbetber. If so. It wss contrary to the prohibitions
of the charter, and the contract *o1d. In thn iires-
ent case the questions are very dllferent. Whether
flde, and without any Intent to commit usury, or
to Tlolale the charier, are the »ery polBta which
the Jury weri> railed upon, and under the Inatrnr-
Cinni were liked to ceeld*. Tb* deohilaa la S
tho notei< of the Bank of Kent
cky. at
tbel
Inal Talna.
e United
St
Owens. 2
eters. 6ZT,
Bide
easeullally
dlfTerent ti-o
m thos
ord- The
certm
d 1
poti 1 demii
plea of
tbe demur
menl was
iy. an^
entered )nl
. So that n
o quest
the
£»"if »»:'_'>
"of'the"
-. - - , 0 of the act, •_
t Itself, conitllutc the glei of the eontr
Jo cODBtrulng the onur> laws, the unlfor
ruction In l.Jnfiland has been, snd It Is euiii
rohlblllon
r, then
prohll
knowingly to contract tor and ti
teresl ; tor It neither pnrty lulend II, and act bona
Ode and Innocently, tbe law will not inter a corrupt
This principle would seem to apply to tbe char-
ter ot the bank. There must be in tntent to lake
Illegal Interest: or. In the language of the law, a
corrupt agreement to take It. In Tlolitlon of ttu
charter. The quo anlmo Is. tberetore, an ewentlal
Ingredletit In all dues ot this sort.
1 ot I
then, reso
whether, upon the e
I Itself ic
ence. ther
action.
lake usury; and none ot these appear In the ciise.
Because an article Is depreciated In tbe market.
It does not follow that tbe owner la not entitled to
demHDd or require a blgber price for It. before be
consents to part with It. He may possets bank
notes which to him are of par >alue, lo payment ot
his own debts, or In payment of |>Tibllc tnxea : and
yet their marketable value timy be fir leas. It be
of them, but the Irsnsactlon la bona flde what It
purports to be. tbe lew will not set aalde tbe cdd'
tract, for It Is no violation of any public pollry
1 N error to the Circuit Conii; of the United
1 States for the Kentucky Diatriiit.
•The plaintiffs in error iiisliUin-rt an [*»«0
action against the defcndunta, and one William
Owena, on a prooiissor; note for $-'i.nO0, ditetl
the 7th of February, 1822, and payable at tbe
office of the Bank of the United Stales at Lex-
ington. Kentucky, on the 7tli of February,
182a, with intereat at the rate of aix per centum
per annum. The defendants were joint and
several promisors with William Owens. Upon
a plea and demurrer in the suit, a division
of opinion was certified by the judges of tbe
Circuit Court to this eoiirt, upon which the
opinion of the court wm given, as reported in
2 Peters, 627.
Afterwards, at May Term, 1B3.3, Ibe case
having been remanded, judgment was entered
against William Owens for want of a pica, and
the other defendants pleaded the general issue;
upon which the cause was tri^ by a jury, and
a verdict and jud^ent, under the direction of
the murt, were given for the defendants. A
bill of exceptions to the refusal of the court to
give tbe instructions asked by the plaintiffs,
and to those given by the court at the re<ju«at
of tbe defendants, was tendered on behalf of
the plaintitTs, and was sealed by the judges of
the Circuit Court.
The note declared on was in the following
"On or before the 7th day of February,
1825, we, William Owens, Aiexander Miller,
ileibert G. Wapgener, George Wagley, jointly
and severally, promise to pay to the President,
Directors and Company of the Bank of the
United States, at their office of discount and
deposit at Lexington, the sum of 15.000 in law-
ful money of the United Statea, with interest
thereon, in like money, after the rate of six
per cent, per annum from this day until paid.
for value received, at the said office of discount
and defosit at Lexington, without defalcation.
SH
Tbb Bahk or n» Umrn) Statu t. WAoaEMD wt U>
Witntu our bkhda, this 7th dk; of FebruMT,
182^ "William Owen*,
"Alex. Miller,
"Herbert Q. Waggener,
"George Wagley.
"WitrtM — John Breen."
Ob which aote is tha following indortementi
"Uem. — Intereat {■ to be charged oo thii
note fTom the 21st day at Ua^, 1S22, only, and
S8I*] not from the 7th of February, *1B2Z,
within mentioned, tha former being the day on
which tlie ■mount waa actually received by thi
makera of the note. H. Clay."
The evidence in the ca*« establiihed the fol-
towing facts: Before the time when the note
waa given, the office of the Bank of the United
Slates at Lexington waa the holder of a large
amount of notes of the Bank of Kentucky,
which had been received in the usual course of
buaineB», at the full value of the notes as ex-
pmsed i:pon them, in gold and silver. These
notes were considered as valuable to the full
extent of Ihrir amount, although the Bank of
Kentucky Imd suspended paying their notes in
specie. No doubt was entertained by the
olticera of the otRce of the Bank of the Unilc^d
States of the full ability of the Bank of Ken-
tucky so (o redeem them. At the time the loan
was made to Owens on the note sued upon, the
notes of tbe Bank of Kentucky had depreciated
to the amount of between thirty-three and for-
ty per cent. It was slso in evidence that when
the Bank of Kentucky suxpcnded specie pay-
ments in ISIO, the institution wbh considerably
indebted to the ptaintifTs at the office ftt Lex.
■n^on, for her notes taken in the usual course
of business, and for government deposits trans-
ferred to that offii-e from the Bank of Ken-
tucky and its branches; and that the accounts
had been settled between the institutions, the
hHlance ascertained and placed to the credit of
the plaintirrs on the books of the Bank of Ken-
tucky, as a deposit upon which the Bank of
Kentucky apreed, in conaidpration of forbear-
•lire of the plnintifTa, to pay interest at the rate
of MX per cent, per annum; and that said in-
terest, as it accrued, was carried at stated in-
trrrsls of time to the credit of the plaintiffs on
the books of the bank; and that the amount
paid Owens on tbe said check had the effect of
stopping tlie interest on that sum from that
lime. Till.- balance whicb remained due from
the Bank of Kentucky to the Hank of the
United Slates was finally settled and discharged
in specie or Its equivalent, about seven months
after the date or time of the said loan to
Owens. The Bank of Kentucky did not, for
"any years after the date of the loan to Owens,
j^-nerally resume the payment of its notes in
specie, or Its equivalent.
In the state of things existing In 1S22, Wll-
SSS') liam Owens applied "to the office at
Lexington for a loan of fS.OOO In the notes of
the Bank of Kentucky, assuring the bank that
tkey would answer his purpose as well as gold
or direr. Tbe offer waa rejected by the directors
wt tbe bank, and on its renewal, was again re-
filled. A third time the loan was applied for,
the interference of a gentleman connected with
the business of the bank, not a director, to
procure it, was solicited and obtained, and the
nliotian was referred to the board at Phils-
S
Iphia, bj wUeb the Iomi wm authorised, •
mortgage on real estste being given as an ad-
ditional secuiity fur the luan. The mortgage
and note having been executed, the amount of
the same was puid to Wiiliaiu Owens by hand-
ing bim tl.lDO in notes of the Kentucky Bank,
and a cheek of that bank for $3,900, which
waa paid to him at that bank in its notes.
Tbe defense to the action was that tbe trans-
action was usurious, and therefore contrary to
tbe act of Congress incorporating the Buik of
tbe United States, and void. On the trial, the
following instructions to the jury were asked
by the counsel for the plaintifTa!
"1. That if they believe from tbe evidence
that the consideration of tlie note sued on waa
3,»00 dollars, paid in a checic on the Bank of
Kentucky, and 1,100 dollars in Kentucky no'-es,
that and the contract was fairly made, without
any Intention to evade the laps against uauryi
but that the parties making the contract in-
tended to exchange credits for the accommoda-
tion of Owens; that the Bank of Kentucky waa
solvent, and *o understood to be, and able to
pay all its debts by coercion; that the contract
'b not void for usury, nor contrary to the funds-
nental law or charter of tbe bank, notwitb-
itandtng it was known to the parties that said
bank did not pay specie for its notes without
coercion, and that the dilference in exchange
between hank notes of the Bank of Kentucky
and gold and silver, was from thirty three to
forty per cenL against the notes of the Bank of
Kentucky.
"2. To instruct the Jury that If they believe
from the evidence that the contract was made
the part of the bank fairly, and with no in-
tention to avoid tbe prohibition of their char-
ter by taking a greater rate of interest than six
per cent-, or the statutes against usury, but at
the instance, and for the accommodation and
benefit of the defendant Owens; and that at
time of the 'negotiation and con- [*383
tract for the check on the bank, and the 1,100
dollars in bank notes of the Bank of Kentucky,
that bank waa indebted to the Bank of the
United Statrs, at tbeir office aforesaid, tbe sum
of 10,000 dollars or more, bearing an interest of
per cent., which sum, it was understood and
believed by the parties to the contract, at and
before ita execution, the Bank of Kentucky was
well able to pay, with interest, and which sum
it did pay. after deducting the 3,900 dollars paid
' the defendant Owens, with interest in gold
silver, or its equivalent; that the contract
s not usurious unless they believed that the
contract was a shift or device entered into to
lid tbe statute against usury, and the prohi-
bition of the charter, notwithstanding the jury
shotild find that the check and notes aforesaid
were, in point of fact, of leas value than gold
and silver.
'3. If the jury find, from the evidence in the
ise, that the defcnilants applied to the plain-
tiffs to obtain from them 5,000 dollars of the
! of the President. Direi-tora and Company
of tbe Bank of Kentucky; and in consideration
of their delivering, or causing to be delivered to
the defendants S.OOO dollars of such notes; and
the said Fank of Kentucky was then solvent and
able to pay the said notes, and has so continued
to this time; and that tbe holders thereof
lid, by ressonable diligence, have recovered
the amount thereof, with six per centum per
annum interest thereoi^ from tbe time of tha
»1
Scnim Cotm or tarn Vsma SrAits.
deliver; of them by plklntilTt to defend&nts, up
to the time of sucb recover}'; and that ikid ar-
rangement and contract was not made under a
device, or with the intent to evade the statutee
against uiur;, or to evade the law inhibiting
the plaintiffs from receiving or reterving upon
loan* interest at a greater rate than six per
centum per annum; then the transaction was
Dot la law uiurioui or unlawful, and the Jury
should find for the plaintiffs.
"4. That unless the jury find from the evi-
dence In the causa that the advance sale or loan
of the notes on the Bank ol Kentucky, made
by plaintiffs to defendants, was so made as a
shift or device to avoid the statute against
usury, or In avoidance of the clause of the act
of Congress which inhibits the plaintiffs from
taking or reserving more than at the rate of
■iz per centum per annum for the loan, forbear-
SS4*] ance, or giving day of 'payment of
money, the law is for the plaintiffs, and the
jury should find accordingly.
"S. That unless they believe, from the evi-
dence In this cause, that there was a lending
of money, and a reservation of a greater rate
of interest than at the rate of six per centum
the jury should find for them; unless they far-
ther find that there was a shift or device re-
sorted to by the parties with the intent and for
the purpose of avoiding the law, by which
something other than money was advanced,
and by which a greater rate of interest than
aik per cent, was allowed.
"0. That if the defendants apptisd to the
plaintiffs for a loan of 5,000 dollars of the notes
of the Bank of Kentucky, and agreed to give
therefor their note for 6,000 dollars, payable
three years thereafter, with interest, and the
Bank of Kentucky was then, and continued
thereafter to be solvent, and the said Bank of
Kentucky did thereafter pay and discharge to
the holders thereof the said notes, the said con-
tract was not unlawful, although the notes of
the Bank of Kentucky would not then com-
mand, In gold or silver, their nominal amount,
when offered for aale or exchange as a com-
modity or money.
"7. That, if they find from the evidence
that the defendants obtained from the plaintiffs
SfiOO dollars of the notes of the Bank of Ken-
tucky, or 3,900 dollars in a check upon said
bank and tl,I0O of its notes, and in considera-
tion thereof, made the note sued upon, the said
transaction «ras not therefore unlawful or
usurious — although the notes of the Bank of
Kentucky were then at a depreciation In value
of thirty-three per cent., in exchange for gold
"S. That there is no evidence in this cause
conducing to prove that there was a loan by
tbe plaintiffs to the defendants of notes on the
President, Directors and Company of tbe Bank
of Kentucky."
The court refused to give these instructions,
and on motion of the defendants instructed
the jury that "if they find from the evidence
that the only consideration for the obligation
declared upon was a loan made by the plain-
tiffs to Owens of 16,000 in notes of the Bank
of Kentucky, Dttimatod at their nominal
amounts, part paid In the note* themselves '
and the residue *in a check drnwn by ['SSB
the plaintiffs on the Bank of Kentucky, on
the understanding and sgreement that the
said Owens was to receive the notes of said
bank in payment thereof, and he accordingly
did so; that the Bank of Kentucky had, be-
fore that time, suspended specie payments,
and did not then pay its notes in lawful money;
that tha said notes then constituted a geneiVl
currency in the State of Kentucky, commonly
passing in business and in exchange at a dis-
count of between thirty and forty pfr cent, be-
low their nominal amounts, and could not have
been sold or passed at a higher price; that the
said facts were known to the plaintilTs and
said Owens, yet the plaintiffs passed the said
notes to the said Owens, the borrower, at their
nominal amounts; then the transaction was in
violation of thd act of Congress incorporating
the plaintiffs, tbe obligation declared on is
void, and the verdict ought to be for the de-
fendants."
Tbe plaintiffs prosecuted this writ of error.
Mr. Sergeant, for the plaintiffs in error, sub-
mitted the following printed argument:
The errors assigned are:
1. That the court erred in giving the instruc-
tions prayed by the defendants.
2. That they erred in not giving the instruc-
tions prayed by the plaintiffs.
The case presented and adjudicated by this
court, in The Bank v, Owens, 2 Peters, 627,
was essentially different from the case now
submitted. There, unfortunately, the plain-
tiffs, by demurring to the defendant's pica, ad-
mitted all the allegations it contained, in their
strongest sense, including the allegation of cor-
rupt and usurious intention. In short, they
confessed that the contract was properly char-
acterized as corrupt, usurious, and in viola-
tion of the charter. The court were thus com-
pelled to declare the law as applied to a con-
tract thus alleged on one side and confessed on
the other, with all its offensive description,
without the power of looking into tbe true
merits of the case, and ascertaining whether
the transaction was really such as it was repre-
sented to be. To this their decision was limited.
•The real state of the case is now fa**
brought before the court upon the evidence;
from which it will be perceived at once that
the injurious charges of the plea, so incautious-
ly admitted by the demurrer, havo no support
whatever from the facts; and that the judicial
prejudice the bank has suffered, oa well as tha
extensive prejudico in public opinion, ara
wholly unmerited. The transaction was in-
nocent and just, entered into vrith the fairest
intentions, upon a full and adequate considera-
tion, and with no view to any gain by the bank
or any loss to Owens. The bank. literally,
did not gain one cent by the negotiation; it
did not even gain the interest, for interest, at
the same rate, was payable by the Bank of
Kentucky. Neither did it, by the negotiation,
convert capital that was dead into active cap-
ital; a long credit being allowed. On the
other hand, Owens did not lose. He declared
that what he received was, to him, equal to
gold or silver; and It must be taken for granted
that it proved to be so, for there is no evi-
dence, nor even an allegation, to the eontraiy.
It farther appears that this negotiation was
JPfllera t.
TuK Bank cw the United Statu t. WAoaum rt ai.
■k Oa aaneat liuUnoe of Oweas, and for hia
Kccomiiiodktion. When he thought his own
iiutBiiee* iniufficient, he sought the aid of
otfaen, and eapecimllj applied to Mr. Clay, who
wmm eounsel of the bank, and to the late Colonel
UoniBOn, who had been pn^aident of the office,
to na« their influence, ai hie frienda, to aid him
Ib ofataining what he aaked. And finally, it
^^WAta that the application, from the begin-
miiK, was for the notes of tlie Bank ol Ken-
tncky, which, to him, were equal to gold or
MlTcr.
tba minutes of the office and Mr. Chevea's let-
ter of the 2Tth March, 1822, in the record.
The instruction given by the court wai, that
the "transaction was in violation of th« act of
Oongresa incorporating the plaintiffs, the obli-
gation declared on is void, and tha verdict
auKht to be for the defendant."
la this instruction correctT This is the qnei'
tiOD, and the only question in the case. The
plaintiffs in error submit that it is not.
The words of the charter are that, in its loans
»8T*I or discount, "the bank Bhali not t
Bore than at the rate of six per centum per
Hw negotiation with Owens cannot, with
Bttj propriety (now that the evidence is dis-
ekncd), I>e termed "a loan or discount," within
the meaning of this section of the act of Om
greaa. The languaf^e of the act is properly
applicable to the lending of money, that is tr
■ay, gold or silver. It Is very true tiiat bor'
rowers seldom receive in gold or silver. They
commonly take banic credits, or notes of the
hank which makes the loan; but these givi
pvaeot right to demand gold or silver, and i
taken bj the borrower for his own eonvenier
aa tba evidence that he haa ao much gold
diver in the bank. Here, there was no such
loan. There was no discount in the ordinary
way of discounting, but a special agreement,
the nature of which will be presently con-
iidered.
The bank did not "^ake more than at the
rata of si.i per centum per annum." If we
look at the terms of the agreement, we find
the T«te of interest agreed upon wsa precisely
■ix per centum per annum, neither more nor
less. So particular was the learned counsel of
the bank in observing precisely the spirit aa
w^ aa the words of the charter, that he took
eM«, by an indorsement on the note, to pre-
vent the interest from beginning to run before
the day when the consideration was actually
recdved by Owens, which happened to be some
tfane after the date of the note.
The decision, however, in The Bank v. Owens,
Z Peters, 627, rested entirely upon a position
which admitted the express and apparent terms
of the contract to be quite consistent with the
provision of the act of Congress already quoted.
The position was that it presented "one of
Uioae cases in which a device is resorted to, by
which ia reserved a higher profit than the legal
iatereat, under a mask thrown over the trans-
action." Tills, the court say, is a fraud upon
the statute, and "a fraud upon a statute is a
Ti^tion of the statute." From this conclusion
tha court di ive another, namely, that such a
t Xj. ed.
contract is entirely void, and no court will aid
its being enforced.
Upon the pleadings in the case just cited,
this conclusion was deduced bj the court, but
even upon those pleadings, it was deduced
with hesitation, only upon the authority of a
case which decides that "the confession of the
quo animo, implied *in a demurrer, will [*38H
affect a case with usury." Immediately after,
it is added by the court, "a very similar case
in the same book, in which the plaintiff bad
traversed the plea, was left to the jury with m
favorable charge."
The decision of the court, therefore, turned
entirely upon the quo animo averred in the
plea and admitted by the demurrer, and was
confined entirely to a case so brought up, with
a very strong intimation that upon a traverse
the result would be different.
This plea haa been withdrawn, and Is no
longer before the court. The unfortunate de-
murrer has gone along with it. In lieu of it,
the general issue of non assumpsit has been
pleaded, and issue joined thereon, which ia at
least OS beneficial to the plaintiffs as a traverse
of the former plea would have been. Such an
iasue presented to the jury the question of quo
animo, which was dosed up in the formpr case
by tlie issue of law, and led to the decision by
this court. Upon the very principle, then, laid
down by thia court, according to the authority
of Benningfield ». Ashley, Gro. Eliz. 741, this
queslion ought to have been left to the jury.
The counsel of the plaintiffs asked for instruc-
tions to that effect, but the learned judge
""fused those instructions, and gave the inxlruc-
on prayed by the defendant's counsel, taking
the inquiry from the jury, and deciding, as a
question of law, that the contract was void.
The plaintiff was entitled to have the whole
Sestion of intention, or quo animo, left to
e jury; and be was entitled to more—that is,
o have it left to the jury, "with a favorable
Was there, or was there not "a device re-
sorted to," or "a mask thrown over the trans-
ion," to disguise and cover an intention,
scheme, or plan to violate or evade the charter,
by taking more than lawful intereatt There
could not be, unless such an intention existed.
Whs there, then, such an intention? The evi-
dence is full and clear to show that there was
The whole transaction was Fair and bona
Me, in the best good faith on the part of the
bank, and with no disguise or concealment
whatever.
The court erred in not so leaving it to the
jury.
Mr. Sergeant also contended at the bar:
1. That the negotiation was at the repeated
stance of 'Owens. The office twice [*38B
declined his application, and then he employed
the influence of his friends, Mr. Clay and
Colonel Morrison, to obtain an order from the
2. That, according to his own statement, the
jtcs he received were to him equal to gold
and silver. He therefore sustained no loss.
3. That the bank gained nothing by the
negotiation. The notes were settled in account
ith the Bank of Kentucky, and were bearing
iterest. There was no gain in interest. There
aa no gain in time, but the contrary. Tbt
tiUPBEUE U-i'xT OF ini Unito) Stjtrtia.
ROC^ wigid hBTS b«en paid much eoonsT bf
the ttanK at Kentucky. The bank did not
•ven Gain the advantage of converting dead
capitaf into active capital. It bad leas activitj
than beiore.
4. That the value of thia paper waa not to
be aacertained bj the value of paper in circu-
Ift^/m. It was not in circulation. It vaa held
bj agreement, m evidence of debt, bearing
Intereat, which do note in circulation bears.
6. That upon a fair eatimate. tbe debt of the
Bank of Kentucky was at the time, and is now,
fully proved to have been worth more than the
debt tor which it wae exchanged.
0. That the negotiation on the part of the
Bank wae innocent, and without intention of
UBury, or any unlawful profit.
He then proceeded to argue that there was
error in the instruction given at the instance of
defendant*, and the refusal to give the instruc-
tions asked for by the plaintiffs in the court
below. *
The court aaaumed that the question was for
the court, and as such, decided it as a question
of law, when it reaily was a question of fact
and intention, to be decided by the jury. This
is manifest from the former decision of this
court, when the case came up, on demurrer.
The Bank v. Owens, 2 Peters, 527.
There are two ways in which usury may be
committed: 1. By agreeing for more interest
than is allowed by law. 2. By some device
which is a cover for the same thing.
1. The first may be decided by the court.
This is the meaning of the case of Roberts v.
Tremeyne, Cr. Jac. 607. It is apparent to the
eourt; res ipaa loquitur.
2. This is invariably a question for tbe jury.
SVD*] Ord. on Usury, *208; Maasa v. Darling,
2 Strange, 1243; Lowe v. Waller, Doug. 736;
I Esp. Rep.
But it has been decided in The Bank v. Owens
that we are not to be affected by the usury
laws of the States.
1. Was this ■ violation of charter? 2. If it
were, how are we affected by it!
1. The cDarter meant only to Bx the rate of
Interest on discounts; but tliis was no discount
at all. It was a speciflc negotiation, and that
negotiation was an innocent one. The bank
gave a full consideration, with no view to gain.
ft did not gain. All its debt waa paid in less
than half Uw time. It was an exchange of
eredit.
2. The act is simply prohibitory. The effect,
where there is nothing more, is only to relieve
against the excess, or to enable the party to
recover it back.
The statutes o( usury declare the contract
void; but wherever the case is in the power of
k court, either of law or equity, they compel
the payment of principal and Interest,
A motion to set aside judgments upon the
ground of usury, was refused in the Exchequer.
Mathews v. Lewia, 1 Anat. 7; Ord. 118.
If one voluntarily pay the money and legal
ntereet, he cannot recover it backi if more,
Wly the excess. Aatley v. Reynolds, 2 Str.
aiG; Ord. IIB, 119. So, if he sue for a pledge
or aecurity. Fitzroy v. Gwillin, 1 T, R. 153.
So in equity, before a party can get relief, he
must pay the money and lawful interest.
Bosanquat *. Dashwood, Ca. Tern. Talb. 38.
KS
Cited also, Ord, on Usury, 141 ; Langford t.
Barnard, Toth. 231; Proof v. Hinea, Ca. Tcm.
Talbot, Ul; Scott v. Nesbit, 2 Br. Ch, Ca.
641; Ord. 143, 144. 145, 146; Taylor v. Bell,
2 Vem. 170; Barker v. Vanaommer, 1 Bro. Ch.
Ca. 149.
The rule is the same in Pennsylvania. The
same principle has been established in thia
court. The Bank of the United States v. Fleck-
ner, 8 Wheaton, 355.
The cases to the contrary are against public
morals, or against some great public policy,
mostly involving a misdemeanor, and crimi-
nally offensive.
On either ground the plaintiffs in error are
entitled to have the judgment reversed.
*A printed argument, prepared by [*3ffl
Messrs. Crittenden and Monroe, counsel for the
defendants in the Circuit Court, was delivered
to the court.
They contended that upon the case presented
in the record, the only questions that can ariae
relate to the propriety of the deciaion of the
court in giving the instruction asked on the
part of the defendants, and in refusing those
Bsked on the part of the plaintiffs.
All these questions depend on the proper
construction and application of that part of tbe
ninth section of tbe fundamental rules of the
bank charter which declares that the bank
shall not "take more than at the rate of aix per
centum per annum, for or upon its loans or
discounts."
First, then, as to the propriety of the Instrue-
tion given at the instanie of the defendants.
The usury laws of Kentucky, like the chat^
ter of the bank, forlnd the taking of a greatv
interest than six per cent, per annum upOB
loans; and it has been repeatedly decided bj
the Court of Appeals of thut State, that the
lending of depreciated bank paper, and taking
the bond or note of the borrower for its nomi-
nal amount in specie, with legal interest only,
is usurious, and a plain and direct infraction
of the statute forbidding the taking of more
than six per centum per annum. Freeman v.
Brown, 7 Mon. 263; Rodps' Executors v. Bush,
5 Mon. 477; Boswell v. Clarkaons, 1 J. J. Mar-
shall, 47. That court has invariably proceeded
on the principle that the current value of the
depreciated paper, at the time of lending and
borrowing, was to be considered its real value;
and that if the payment stipulated for by the
borrower exceeded the amount of the current
value of the depreciated paper at tbe time, and
legal interest thereon, that It was againat law,
and usurious.
The lender who reserve* an interest of sis
fier cent, upon a greater sum than he actually
ends, is most clearly, we think, as much and
as directly a violator of tbe law as he wlio re-
serves more than six per cent, upon the suit
actually loaned.
The facts on which this instruction is predi-
cated are incontratably established by the evi-
dence, and the legal conclusions drawn from
them, as stated in said instruclion, are confi-
dently bclipved to be correct, and to be main-
tained by the decision of thia court upon thia
case when formptly before it. The 'facts [•*•*
on which this instruction is founded are th»
ssme, in effect, that were alleged in th*
plea that was then decided to be a good and
PMcrs •.
1835
Tiuc Ba»k or TUK L'n
■uflkieBt faMr to tha Action. W« conclude,
tberefore, that lliU initruction ie proper, aiiJ
■cFording to law.
S«rond, KB to the fnBtructiona moved on the
part of the ptaintifTa, and refund b; lln
we contend that they are all cither impe
as having no application to the case ae
prars in proof, or tliat the; are cmbrarpd niid
DcgatiTcd by the coDsidcrntiona and autliaritics
w^ed in aupport of the inBtnirtion given al the
inatance of the defendants. That the refii>'; I of
them waa correct, and could not prejudiee llie
plaint! ITb.
The uncontested facts make an apparent cane
of usury. Tlie applieation of Owens vish for a
loan— B loan waa made to him of ^j.OdO in Kt-a-
tucky Bank paper, depreciated between thiil.v-
three and forty per cent. And for the ncmiJnal
amount of this p.iper the note in qiie.ititm w.is
taken, parable in lawful monny of the United
States with six p;r centum interest I hereon.
About these faels there ean be no tli^pute.
They make, per ae, a case of usury, and ■vnn-
sot by intendment have any other conslructioo"
— res ipsa loquitur. IJobcrls v. Treniiiyiic, 3
Croke's R<p. 608. Yet to give it some "othpr
is the objert of all the inHlrurtioits moved on
the part of ttie plainlilfs, tliat are applicable to
In the case above referred to in Croke, the
diatinction is taken between cases where usury
is apparent from the circumstances, and where
it is only ''implied." Here, from indisputable
faeta atateil, it is apparent that the plaintilTs,
by the note in suit, have attempted to secure to
themselves a much greater amount than the
lalue which they loaned and six per centum
interest thereon. This is not the evidence of
usury, it is usury itself. And its legal charac-
ter and effect cannot be changed or evaded by
any fairncHs of mere intention that nay ba as-
cribed to the lender.
It is manifest that the plaintiffs did intend to
do, rid did in fact do, everything necessary to
constitute nn usurious loan; that they did take
more than at the rate of six per centum per
BDnuin, i.pon this loan to Owens; and did in-
3tS*1 tend to do all 'they did do-, it was
therefore in vain for them to allege afterwards
that they did not intend to violate the law.
No error of the officer* of the bank, as to the
effect of the transaction under the law, can give
validity to the paper taken in violation of the
law. Their supposition that the loan of depreci-
ated paper at ita nominal amount, to be repaid
in lawful money with interest upon it, was au-
thorised by their charter and lawful, could not
make it bo. Where there Is a controversy as to
what the transaction was, in fact, the intention
•f the parties may have elTect in determining
ita character; but when the fact and intention
to do what was acted, are manifest, the law is
•nly to be appealed to for the effects and con
sequences. Here, that the trannaction was a
loan is unquestionable; and the instruction
giTen by the court is predicated on this, to-
gether with the other fscts to be found by the
jury. The conclusion of law pronounced by the
court was inevitable.
Mr. .Tiietiee Story delivered the opinion of
thr i-ourt:
lliis is a writ of Mror to the Circuit Court
SrAiKS T. Wauuknei et au 2V1
of the District of Kentucky to revise a judg-
ment of that court, in a ease wlieie tlir
plfliiiLilTs in error were original plaintiffs in tne
suit.
j The suit was an action of debt brought u^
on a prouiis>ary nute, duled the 7tb of Febru-
ary, 1822, whereby the ilcfendanls, on or befor"
llie Tth of February, 182.'i. jointly and several-
j Iv promised to pay the President, etc., of the
lliink of the Uniled Mtntcs. at ilieir offica ol
discount and deposit, at Lexington, $5,000 with
interest thereon, after the rate of six per cent.
I>er annum, until paid, for vnlue received. And
Ijy a memorandum on the back of the note,
the interuat was to be charged only from the
21st of May, 1822, that being the diiy on which
llie money was actually received Ly the makers
(if the note.
The plea of payment was put in, upon which
issue WU.S joined; and it was agreed between
.he parties timt either party under the issue
uii^lil give in evidence any special matter
which could be specially pleaded. At the trial
a verdict was rendered fur the defendants, up-
on which judgment passed in their favor; and
the cause is now brought liefore us for reviaion.
upon a bill of e\ceptions taken at the trial, and
for matters of law therein stated.
•From the evidence at the trial, it I*3»<
appears that prior to tlie time when the note
waa given, vix., in ISlt), the Dank of Ken
tucky, which had previot:sly been in high
credit, suspended speiie pavntents; and at thai
time the instittilion wns indebted to the plain,
tiffs, the Bank of the United States, in a large
sum of money, for notes of the Bank of Ken-
tucky, taken at par, in the usual course of
business, snd for government deposits trans-
ferred to the office at Lexington, from tbe
[tank of Kentucky end ita branches. The ac-
counts had been nettled betueen the two inati-
tutions, the balance ascertained and placed to
the credit of the plaintiffs, on the booka of the
Bank of Kentucky as a deposit; upon which
the Bank of Kentucky agreed, in coniideration
i)f forbearance, to pay interest at the rate of
'ix per cent, per annum; and the interest, as it
.iccrued, was carried at stated intervals to the
iTedit of the plaintilTa, on the books of the
hank. This agreement was punctually per-
ormed by the Bank of Kentucky, and the bal-
iince which remained due to the plaintiffs waa
ilnally settled and discharged in specie, or ita
equivalent, in about seven months after the ne-
gotiation, which will be immediately noticed.
In thia state of things. Owens, one of the de-
fendants, made repeated applications to the
r^xington office at tbe Rank of the United
•latea for an Hccommodalion of S-'i.OOO in Ken-
tucky B:ink notes, of which the ofUce had a con-
siderable sum on hand, stating that such notes
ivould answer hia purpose as well aa gold or
silver, and agreeing to receive them at their
nominal amounts. These applications wera
rejected; and finally, at his urgent sugpeation^,
nn application waa made to the parent bank at
Philadelphia, to permit the Lexington office to
grsnt the application; and the pai-ent bank ac-
rordiu^ly gave the permission. The note now
in niiit n'lia accordingly given, with a nort-
ra"p of real estate as colbternl aecnrity, and
Sl.I'lO were received in Kentucky Bank notea,
and the remaining f3,900 were paid by a cheek
SvFBEME Couar or the Umitco Statcs.
ISU
drnpp on tin llnnfc of Kentucky, which wb?
duly hononvl; »ad the amount of the check
was deducted from the balance due to the
ptaintilTs, and interest tliereun immediately
It farther appeared, at the trial, that the
Bank of Kentucky was never insolvent, but
had always auilicient efTecte to pay its debts;
that it has been several tioies sued for its debtB,
8V5*] which *had been always paid in specie,
or other arrangemeuta hod been made satis-
factory to the creditors; it had discharged the
greater part of its deiils, and had diatributed
union),' its stockholders ¥10 in specie am! $70
in notes of the Commonwealth Bank of Ken-
tucky (which were at a great depreciation),
and that all its funds haJ not yet been dis-
tributed.
The Bank of Kentucky never resumed apeeie
payments, and at the time of the nej;<>tintion
above stated, the notes were depreciated from
thirty-three to forty per cent., and were cur-
rent as a circulating medium at thin riite of de-
preciation. They were, however, by law, re-
ceivable for State taxes and county levies at
par, and had accordingly boon so received.
Upon this evidence the plaintiffs moved the
court to instruct the jury as follows:
"1. That, If they believe from the evidence
that the consideration of the note sue:l on was
^,r>00 paid in check on the Bank of Kentucky,
and $1,100 in Kentucky Bank notes; and that
the contract was fairly wade, without any in-
tention to evade the laws against usury, but
that the parties making the contract intended
to exchange credits for the ac<>ommodation of
Owens; thiit the Bank of Kentuc-ky was solvent,
and so understood to be, and able to pay alt tta
debts by coercion; that the contract is not void
for usury, nor contrary to the fundamental law
nr charter of the hank, notwithstanding it was
kiown to the parties that said bank did not pay
specie for its notes without coercion; and that
the difference in exchange between bank notes
of the Bank of Kentucky and gold and silver,
was from thirty-three to forty per cent, against
the notes of the Bank of Kentucky.
"2. To instruct the jury that, if they ba-
lleve from the evidence that the contract was
made on the part of the bank fairly, and with
no intention to avoid the prohibition of their
charter by taking a greafer rate of interest
than six per cent., or the statutes against
usury, but at the instance, and for the accom-
modation and benefit of the defendant Owens;
and that at the time of the negotiation and
contract for the check on the hank, and the
tl,500 in bank notes of the Bank of Kentucky,
the Bank of Kentucky was indcbteil to the
Bank of the United States, at their office
aforesaid, the sum of $10,000 or more, tfearing
an interest of six per cent.; which sum,
SBA*] *it was understood and believed by the
|iarticB to the contract, at and before its exe-
cution, the Etenk of Kentucky, with interest,
was well able to pay. and which sum it did pay,
after deducting the $3,300 paid to the defendant
Owens, with interest in gold or silver, or its
ecjnivalent; that the contract was not usurious,
unless they believe that the contract waa a
•hifl or device entered into to avoid the stat-
ute BgiiJnst usury, and the prohibition of the
charter, notwithstanding the jury should find
13*
tliat the check and notes aforoEaid were, tm
point of fact, of less value than gold and silver.
"3. If the jury find from the evidence in the
cause that the defendants applied to the plain-
tilfs to obtain from them Sa.OOO of the notes of
the President, Directors and Company of the
Bank of Kentucky; and in consideration of
their delivering, or causing to be delivered to
the defendants $5,000 of such notes; and the
said Bank of Kentucky was then insolvent and
able to pay the said notes, and has so continued
up to this time; and that the hoiders thereof
could, by reasonable diligence, have recovered
the amount thereof, witli six per centum per
annum interest thereon, from the time of the
de'ivery of them by plaintiffs to defendants,
up to the time of such recovery; and that said
arrangement and contract was not made under
a device, or with the intent to evade the stat-
utes against usury, or to evade the law inhibit-
ing the ptaintiffa from receiving or reserving
upon loons interest at a greater rate than nix
per centum per annum; then the transaction
was not in law usurious or unlawful, and the
jury should find for the plaintiffs.
"4. That unless the jury find from the evi-
dence in the cause that the advance sale or
loan of the notes on the Bi-.nk of Kentucky,
made by plaintifTs to defendants, was so made
as a shift or device to avoid the statute against
usury, or in avoidance of the clause of Ihr act
of Congress which inhibits the p'uliitiirs from
taking or reserving more than ul llie nitt of
si\ per centum pi'r annum for the loan, for
liearanee, or giving day cf payui"-!!'. of moin-v .
the law is for (he plaintilTs, and the jury wor '1
find accord ingiv.
"5. That unless they believe, from the ei i
dence in this cause, that there was a lending o.'
money, and a reservation of a grruler r;ile ol
interest than at the rate of six pt-r centum pi' -
'annum, stipulated to be paid by de- [•3n7
fenclanta to plnintiffa. the law is for the plain
tiffs, and the jury should find for them. Un
less they farther find that there was a shift or
device resorted by the parties with the intent
and for the purpose of avoiding the law, li,t
which something other than money wa* ad
vanced, and by which a greater rate of iiitere~l
than six per cent, was allowed.
"6, That if the defendants applied to tin
K- lintifTs for a loan of $5,000 of the notes of tli,
nk of Kentucky, and agreed to give Ihcrefur
their note for $5,000, payable three years there-
after, with interest, and the Bank of Kentucky
was then, and continued thereafter to be sol-
vent, and the said Bank of Kentucky did there-
after pay and discharge to the holders thereof
the said notes; the said contract was not un
lawful, although the notes of the Bank of
Kentucky would not then command, in gold Oi
silver, their nominal amount when offered for
sale or exchange as a commodity or money.
"7. That if they find from the evidence thai
the defendants obtsined from the plaintiffs
$5,000 of the notes of the Bank of Keatueky,
or $3,000 in a check upon said bank, aiH
$1,100 of its notes, and in consideration there-
of, made the note sued upon; the said transac-
tion was not therefore unlawful or uaurioun,
although the notes of the Bank of Kentucky
were then at a depreciation in value of thirty-
three per cent, in exchange tor gold and ailvcr
IbM
The Bans OV 1
I Uhitid Btatks t. WAoaExn tr al.
W7
^ Tb*t then la no evideou In this (
conducing to prove that there waa a loan bj
tite p-aintiffa to the defendants of notes on the
President, Krecton and Conlpaiiy of the Bank
o< Kentuckr-"
The court refused to give any of these in-
•tmcliona, and upon the prayer of the defend-
■nta, initnicted the jury as follows:
"That if they find from the eridenes that
tha only conaideration for the obligation
^rod upon was a loan made by the plaintiSs
to Owens of (5,000, in notes of the Bank of
Kentucky, estimated at their nominal amounts,
part paid in the notes themselves and the resi-
due in a check drawn by the plaintiffs on the
Bank of Kentucky, on the understanding and
agreement that the s^d Owens was to receive
tl»B notes on said bank in payment thereof, and
StS'J he accordingly did soj that 'the Bank of
Kmtuckf had, before that time, suspended
stituted a general currency in the State of
Kentucky, commonly passing in business and
in exchange at a discount of between thirty and
forty per cent, below their nominal amoimts,
■ad could not have been sold or passed at a
U^er price; that the said facts were known
to the plaintiffs and said Owens, yet the plain-
tUTa passed tlie said notes to the said Owens,
the borrower, at their nonuDal amounts; then
tka transaction was in violation of the act of
Congreas incorporating the plaintiffs, the ob-
ligation declared on is void, and the verdict
ought to be for the defendsnts."
The statute of usury of Kentucky of ITQ8 de-
clares that no person sball hereafter contract,
lUrectlj or indirectly, for the loan of any
money, wares, merchandise or other com-
uodftj', above the value of six pounds for the
forbearance of one hundred pounds for a
•od after that rate, for a greater or a
■nn, or for a longer or shorter time; and all
Ixinda, contracts, etc., thereafter made for pa]
Bent or delivery of any money or goods so Ten
on which a higher interest is reserved or taken
•nipt of the statute of 12 Ann, stat. 2,
see. I; and, therefore, the same construction
will apply to each. In the present ease, no in-
terest at all has been taken by the plaintiffs on
the $5,000. There was no discount of the ac-
eming interest from the face of the note, and
the interest was payable only with the princi-
pal, at the termination of the three years men-
tioned in the note. If the case, therefore, can
fa* I»^ught within the statute, it must b«, not
aa a taking, but aa a reservation of Illegal in-
terest.
The ninth article of the fundamental articles
of the charter of the Bank of the United States
(Act of 1816, ch. 44, sec. 11) declares, among
other things, that the bank "shall not be at
KbertT to purchase any public debt whatsoever;
Bor sball it take more than at the rate of sIt
per centum per annum for or upon its loans or
aiBconnts." It la clear that the present trans-
action does not fall within the prohibition of
dealing or trading, In the preceding part of
tha same article, according to the interpreta-
tioa thereof given by this court in Fleckner v.
l»t-] -The Bank of the UnitM States, »
WheaL Bep. 338, 361, to wUeh we dellbaratdj
It is observabls that the words of the article
are that the bank shall not take (nor shall not
reserve or take) more than at the rate of six per
cent. In the construction of the statutes of
usury, this distinction between the reservation
and taking of usurious interest has been
deemed very material; for the reservation of
usurious interest makes the contract utterly
v4dd; but if usurious interest be not stipulated
for, but only taken afterwards, there the con-
tract la not void, but the party is onl7
liable to the penalty for the excess. So it waa
held in Floyer t. Edwards, Cowp. Rep.
112. But in the eaae of The Bank of the United
SUtea V. Owena, 2 Peters, B27, 538, it waa said
that in the eharter, "reserving" must be ini<
plied In the word "taking." This expresdon
of opinion was not called for by the certified
question which aroee out of the plea; for it waa
expressly averred in the plea that, in pursuanee
of the corfupt and unlawful agreement therein
stated, the bank advanced and loaned the whole
consideration of the note, after deducting a
larM sum for discount, in the notes of the Bank
of Kentucky, at their nominal value.
It is In reference to the Usury Act of Ken-
tucky, and this article of the Bank charter that
instructions asked o
be examined. But before proceeding to consider
them severally, it may be proper to remark
that, in wnstruing the usury laws, the uniform
construction in England has been (and It la
equally applicable here) that toeonstitnte usury
—ithin the prohibitions of the law, there must
I an intention knowingly to contract for or to
take usurious interest; for if nrither party in-
tend it, but act bona Bde and innocentli^ the
law will not infer a corrupt agreement. Where,
Indeed, the contract upon ita very face Imports
usury, as by an express reservation of more
than legal interest, there is no room for pre-
sumption; for the intent Is apparent, rea ipsa
loquitur. But where the contract on its face is
for legal interest only, there it must be proved
that there waa some corrupt agreement or de-
vise, or shift, to cover usury ; and that it was in
the full contemplation of the parties. Theae
distinctions are laid down and recogniied so
.rly as the cases of Butt^in v. Downham, Cro.
Elti. 042; Bedingfield v. Ashley, Cro. Eliz. 741;
Roberts *. "Tremayne, Cro. Jac. 607. The [•4«0
doctrine has been acted upon in modem
es In Murray v. Harding, 2 W. Bl. 868;
Gould, justice, said that the ground and
foundation of all usurious contracts, is the cor-
rupt agreement; in Floyer v. Edwards, Cowp.
112; in Hammett v. Yea, 1 Boa. ft Pull. 144;
Gooch, 8 Bam. ft Aid. 064, and in
Solarte V. Melville, T Bam. ft Cres. 431.
e principle would seem to apply to
the prohibition in the charter of the bank.
There must be an intent to take Illegal Interest,
" e language of the law, a corrupt agree-
take it, in violation of the charter; and
s stated in the plea in the case of The
Bank of the United States v. Owens, 2 Peters,
627. The quo antmo is, therefore, an essential
' igredient in all cases of this sort.
Now, it distinctly appears in the evidence, aa
has been already stated, that no interest or dia>
eonnt whatsoever waa actually taken on the
BuFSBKB Conn 0* THi Ummi Siaikb.
Bote; and on the face of the note, there w>s no
reaervBtion of anj intereat but lesal Interest.
Bo that there haa been no taking of ueury, Mid
no reeerration of uaury on the face of the trans-
action. The caae, then, resolvea itself into this
inquiry, whether, upon the evidence, there was
any corrupt agreement, or devise, or ahift, to
reserve or take usury ; and in this aspect of the
ease, the quo animo, as well aa the acts of the
parties, is most important.
With theae principles in view, let us now
proceed to the examination of the instructions
prajed by the plaintiffs. The substance of the
fliat instruction is, that if the contract was fair-
ly made by the parties, without any intention
to evade the laws against usury, but that the
parties, making the contract, intended to az-
efaange credits for the accommodation of
Owens; that the Bank of Kentucky was eolrent,
and able to pay it* debts by coercion ; then the
contract was not void for usury, nor contrary
to the charter of the bank, notwithstanding the
parties knew that the Bank of Kentucky did
not pay specie for ita notes without coercion,
and that these notes were in ezchangi
instruction ought to have been given,
eludes any intention of violating the lawa
against oiury, and it puts the case as a bona
fide exchange of credits for the accommodation
401*] of Owens. Such an exchange is not, 'per
•e, illegal; though it may be so, if it is a mere
■hift or devise to cover usury. If the applica-
tion be not for a loan of money, but for an ex-
change of credits or commodities, which the
parties bona flde estimate at equivalent values,
it seems difficult to find any ground on which
to rest a legal objection to the transaction. Be-
eause an article is depreciated in the market, it
does not follow that the owner is not entitled
to demand or require a higher price for it, be-
fore he consents to part with it. He may pos-
aea* bank notes, which to him are of par value,
because be can enforce payment thereof, and
for many parpoaea they may paaa current at
par, In payments of his own debts, or in pay-
ment of public taxea; and yet their marketable
vajue may be far less. If he uses no disguise;
if h« seeks not to cover a loan of money under
the pretense of a sate or exchange of them, but
the transaction is, bona flde, what it purports
to be, the law will not aet aside the contract,
for it is no violation of any public policy
against usury.
We are also of opinion that the second In-
struction ought for similar reasons to have been
given; and, indeed, it stands upon stronger
Sounds. It puts Uie ease that there was no
tention to violate the charter or the statute
against usury; that the contract was for the ac-
commodation of Owens; that the Bank of Ken-
tucky was indebted to the plaintiffs in a aum
exceeding tlO,000, bearing an Interest of six
per cent., which the check would reduce pro
tanto; that the Bank of Kentucky was able to
pay the amount with interest in gold or silver;
and did pay it, after deducting the check of
$3,000i and then asserts that under such cir-
cumstances, the contract was not usurious, un-
less the jury believe that the contract waa a
shift or devise entered into to avoid the atatute
against usury, notwlthstandiag tke ebeck «od
ITS
the bank note* were Id point of fact of Ioh
value than gold and silver. So that in fact, it
puts the instruction upon the very point, upon
which the law itself puts transactions of thia
sort— the quo animo of the parties. Did they
intend usury, and make uae of any shift or
devise to cover a loan of money! Or did they,
bona flde, intend a loan of bank notes, which to
the lender were of the full value of their
numerical amount, and were so treated bona
fide by the borrower? Unless the court were
prepared to aay (which we certainly are not)
Chat all negotiations for 'the sale or ex- 1*401
change of Sank notea, under any circumstance*,
must, to escape the imputation of usury, x the
prohibition of the charter, be merely at their
marketable value at the time, though worth
more to both parties, the instruction was )n {<s
terms unexceptionable.
The third instruction is governed by the same
reasoning. It puts the case that the npplica-
tion was made for a loan, not of money, but
for notes of the Kentucky Bank, to the amount
of (5,000, in consideration of the note suvd on;
that the Bank of Kentucky was solvent and
able to pay its notes; that the holders thereof
could, by reasonable dili^nce, have recovered
the amount thereof, with interest at the rate of
six per cent, per annum ; and that there was no
device or intent to evade the statute against
usury, or the prohibition of the charter; and
then asserts that under such circumstances the
transaction waa not, in law, usurious. And
here, it may lie added, that if the case was a*
stated (and the evidence manifestly conduced
to establish it), it is clear that the plainlilTs
could not, by the negotiation, entitle themselves
to more intereat than they were already entitled
to against the Bank of Kentucky. It would be
a mere exchange of securities, by which the
plaintiffa did not reserve and could not obtain
more than the legal rate of intereat. If A holda
the note of B for 1100 and legal interest, and
he exchange* it with C for his note for the
same aum and legal interest, and B and C are
both solvent, the transaction in no manner
trenches upon the statute a^inst usury.
The fourth instruction puts the case In a
mors general form, but the same principles ap-
ply to it.
The fifth instruction puts the case in the
most pointed manner, whether there was an
intended loan of money and a reservation of
illegal interest, and a shift or devise to cover
it, and evade the law by advancing something
other than money on the loan. If there waa
not, then it asserts (and in our judgment cor-
rectly) that the jury ought to find for th*
The sixth and aeventh instructions fall under
the same considerations, and are equally unex-
ceptionable.
Ttie eighth instruction was properly refused,
and ought not to have been given. The court
could not judicially say that there was no
evidence conducing to prove that there waa
a *loaa by the plaintiffs to the defend- [*40S
ants of the notes of the Bank of Kentucky.
There was evidence proper for the considera>
tion of the jury, and the intent was to be gath-
ered by them from the whole eircumstance* «f
the transaction.
In regard Uf th* lutruetioa ^tcb by tha
P«tera t.
18U Putt v, Vattu Vt U. Aim ti
MMrt Upon tfae prayer of tbe dnf«nd»nta, It
w»a probably given under llie impression that
tbe ease na« governed bj the decision of tJiis
court In The Bank of the United States r. Owens,
2 Petera, 587. That case, however, in our opin-
ion, turned upon considerations essentially dif-
ferent from those presented by the present
rMord. Tbe questions certified In that case
arose upon a demurrer to a plea of usury, and
tbe demurrer in terms admitted that the agree-
■lent wms unlawfully, usurioualy and eormptly
entered into; so that no question as to the in-
tention of tbe parties, or the nature of the
transaction was put. The transaction was usu-
rious, and the agreement corrupt; and the ques-
tion then was, whether, if so, it was contrary to
the probibitious of the charter, and the contract
was loid. In the present case, the questiojis
very different. Whether the agreement was i
mpt and usurious or boita flde, and without any
latent to commit usury or to violate tbe char-
ter, ar« the very points which the jury were
called upon, nnder the Instruction! aslied of
th« court, to deinde. The decision In 2 Peters,
SET, cannot, therefore, be admitted to govern
tbil; for tbe quo animo of the act, as well as
the act Itaelf, constitute tbe gist of the aontro-
In OUT opinion, the instruction asked by tbe
defendanta ought not to have been given. It
ezclndea altogether any consideration of the
bona fides of the transaction and the intention
irf tbe parties, whether innocent
and puts the liar to tbe recovery (after select-
ing a few facts) substantially upon the ground
tbat tbe bank notes loaned were a known de-
preeiated currency, passing the exchange anij
burineaa at a discount of from thirty to forty
per cent., and were passed at their nomlnu
amounta bj tbe plaintiSs to tbe defendanta,
witbout any reference to the fact whether there
waa any design to commit nsur^, or whether
the notes were in reality of a bigber Intrinsic
valn^ at ol their full nominal value to the par-
ties! or wbetber there waa in the transaction
dtber a talcing or a reservation of more than
these constituted the tui'nlng points of the
and the instruction could not properly be given
without making them a part of the inquiries
before the jury, upon which their verdict was
la turn.
Cpon tbe wbol^ m are of opinion that the
Urst Mven instructions prayed by the platntilTs
on^t to have been given to the jury, and the
instruction given by the court at the request of
the defendants, ought to have been refused;
sad therefore, for these errors, the judgment
^ngfat to be reversed, and the cause remanded
to tbe Circuit Court, with directions to award
a Tcniie facias de novo.
This cBuee came on to be beard on tbe tran-
script of the record from the Circuit Court of
the United States for the District of Kentucky,
tnd was argued by counsel; on consideration
whereof. It is the opinion of this court that
there is error In tbe opinion of the Circuit Court
of tbe Kstrict of Kentucky, in refuxin^ to give
tbe initructions prayed for by the plaintiffs in
their Brat, second, third, fourth, fifth, sixth
■■d avrenth Instmctions, prayed for In the bil]
a Ban or thb Uhitd Siatm. 4U
of exceptions stated; and then Is also error in
the opinion of the court In giving the instruc-
tion prayed for by the defendants in the same
bill of exceptions stated. It is, therefore, con-
sidered by the court that, for the errors afore-
said, the judgment of the said Circuit Court
be, and tlie same is hereby reversed and an<
nulled, and that the cause be remanded to the
Circuit Court with directions to award a venire
faciaa de novo.
■BOBERT PIATT, Appellant, [■405
k bill «
■ nied li
limitatiou
ind the statute
l<j the delcDdaDts,
tlainant claimed the benefit of an eicep-
be ■tatnte, of nonresideDce and absenca
from the State ; and eTtdenee waa c'vea tendlog to
sUow that the person aoder whom he made bis
claim In egultr was within tbe etceptlOD. The
Doarcsldeacs sod absenoa were not charged In tho
bill, and of course were not denied or pat In Issuii
Id the aaswar. Held, that tbe eonrt can take no
notice or tb« proofs : for tbe proofs, to be admis-
sible, mnst be teunded upon soma allaaatloaa la
the bill and answer. If tbe msrltt of the ease were
not otherwli>e dear, the court might remand the
CBUss for the purpose of amendlDs the piesdlDgs.
There was in thli esse a clear adVeise possession
of tblr^ years, without ths selmawleakmaiit of
any equltj or truit estate tn snjone, sdiI no elr-
camstsnces Were stated In the bit), er sbown In
evidence, whlcb overcame ths decisive InBiienoa of
such an sdverse poMcsslon. Tbe establlsbed doc-
trine 0( tba law of courts of equltv, from Its being
~ rule adopted by those courts, independe — -'
._Sl«letlTe Ilmltatlous, la that It win not
stale demi ~
leglsletlTo Ilmltatlous, la that It win not sntertaln
lant, a citiEen and resident of the State o
tucky, filed a bill in the Circuit Court of tbe
United States for the District of Ohio, setting
forth that in tbe year 1761), when tbe city c3
Cincinnati was finl laid out, the country being
then a wilderness, and the town plat a forest of
timber, certain lots in the said city were allot-
ted as donations to those who should make cer-
tain improvements within given periods of time;
and the evidence of owneriblp, consisting of
a eerti Scats of tbe proprietors, was trans-
ferred from one person to another by delivery
evidence of title. That tbe lot No. 1, on the
said p'at, now occupied aa the Cincinnati Hotel,
was allotted to one Samuel Blackburn, who, be-
fore the conditions of the donation were ful-
filled, transferred his right to one James Camp-
bell, who soon thereafter transferred it to one
John Bartle, who, in the eummer of the year
17S0, took possession of the same, and com-
Hon. — As to statute of Ilmltatlans tn enult*
_HB. HB notes to a L. ed. U. 8. 287 : *2 L. ed. U.
a. 711.
' ■ to relief denied from iBpae of time In eqaitj,
note to 8 L. ed. U. S. fl27.
_ ^_ _._. — _. "- --^tlons and lapse ot f
Sopsuot Coun Of thi Ukitd fiTAtis.
i$u
40S*] plated the ImpravemsnU 'm^uired hj
the termi of the donation. That enid Bartle
continued to occupy said lot, and the building
thereon erected by himself drat, and aubse-
queatly b; bU tenaota Elliot and Williania, and
by his tenant Abijah Hunt, for several years,
having the certiBcata of the proprietor! of the
town aa his evidence of title; and the said Bar-
tie having become embarrasBed in his circum-
Jtancea, mortgaged the said lot to one Robert
Darr, of Lexington, Kentucky, of whom, and
his heirs, if deceased, nothing waa known, for
the sum of about $700, to the payment of which
the rente reaerved to aaid Bartle, from the ten-
ants in possession, were to be, and a targe
amount was in fact appropriated and paid.
That the said Bartle having h«en upset in cross-
ing the Ohio River, and thrown into the lane,
lost hia certificate for said lot, and this fact
toming to the icnowledge of one Charles Vat-
tier, a citizen and resident of the State of
Uhio, who, it is prayed, may be made defend-
ant to the bill, and the said Bartle being then
in very reduced circumstances, the said Vattier
contriving and intending to defraud the said
Bartle of the said lot, then become considerably
valuable, went to Lexington and purchased of
said Barr tha mortgage given on said lot by
w.[d Bartle, which he took up; and having ob-
tained from Abijah Hunt, then the tenant of
laid Bartle, the possession of the said lot in the
absence of said Bartle from the country, the
said Vattier obtained from John Clevea Sym-
loes, in wham the legal title was, a conveyance
for said tot. That said Vattier having thus
fraudulently obtained the poesession of and title
IQ said lot, afterwards sold the same to one
jgl)n Smith, who hftd full notice and knowledge
oi the original and continued claim of said
Bartle to the same, which laid Smith Is oioce
decMsed, and his heirs, if any are alive, are un-
known to the complainant; and the said Smith,
after occupying the same for ■ time, sold the
same to one John H. Piatt, who had full notice
and knowledge of Bartle's claim thereto; said
John H. piatt is nince deceased, leaving Benja-
min M. Piatt and Philip Grandon and Eannah
C. bis wife, citizens ana residents of the State
of Ohio, his beirs-at-!aw, with others not citi-
lena of this State, and who cannot, therefore,
be made defendants. And the said John H.
piatt, in his lifetime, mortgaged the same to
the President, Directors and Company of the
101*1 Bank of the United States, under 'which
Qiortgage the said President, Directors and
Company of the Bank of the United States have
obtaiTied possession and complete title, with
full notice and knowledge of the claim of said
Bartle. And the said Prssldent, Dit^ctors and
Company of the Bank of the United States have
sold the same to one John Watson, a dtiien
and resident of this State, who, it 1* prayed,
may be made defendants to this bill, tne said
Watson being In the actual possession of said
premlsea, but has not paid the purchase money
or obtained a deed therefor. The bill further
■hows that the said Bartle asserted to the said
Vattier, to the said Smith, and to the said Piatt,
hi* right to said premises at various and dilTer-
ent tlmeB, hut from povcrtv was unable to at'
terapt enforcing the same In a court of equity
or elsewhere; and the complainant has recently
purchased from said Bartlo his right to said lot,
17«
' and obtained a eonveyante from him for tbs
same. The bill prays that the said President,
Directors and Company of the Bank of th-
United States may be decreed to deliver poeses-
sion of said premises to the com pis i nan t, »nd
account for and pay the rents and proBts there-
of to him, and execute a quiet claim deed there-
for to him; or in case the said President, Direct-
ors and Company of the Bank of tlie United
States be protected in the possession thereof,
that Charles Vattier be decreed to account for
and pay to the complainant the value thereof
upon such prii ' *
and equitable,
etc.
The Bank of the United States filed an an-
swer, denying any knowledge of the facts al-
leged in the bill as to the title of Bartle to the
property in question, and asserting a regular
legal title to the same in those under whom
they hold the same. They assert a possession
to the property in Charles Vattier from 1797
up to July, 1806, when the property was pur-
chased by John Smith, and was afterwards, In
1811, sold by the sheriff by virtue of a fieri
facias, as the property of John Smith, and
bought by John U. Piatt; under whom, and
whose heirs, the property is held by convey-
ances, commencing in 1820, by mortgage, by
deed in fee-simple from the heirs of John A.
Piatt in 1823, and by a release of the dower of
the widow of John U. Piatt at the same time,
for which release the bank paid to the said
widow (11,000.
Upon this lot of ground John H. Piatt made
extensive and 'costly improvements, [*40b
and In particular erected the Cincinnati Hotel.
The answer states that the bank, at the time
of the purchase, knew nothing of the claim of
the complainant, or of Bartle, and that they
claim a complete title to the lot under John C,
Symmes, Charles Vattier, John Smith, and John
H. Piatt, and his heirs and representatives,
and widow, as above stated, and they allege
that said Vattier took possession of aaJd lot
about the year 1780, and that said Vattier and
thoae claiming under him have continued in
the uninterrupted possession of eald premise*
ever since, being a period of more than iwenty-
eight years.
The answer of Charles Vattier denies all the
allegations in the bill which assert his knowl-
edge of the title, said to have l>een he\a by
Bartle to the property; and asserts a purchasa
of the property claimed by Roliert Piatt, from
Robert Barr, of Lexington, Kentucky, and that
a complete legal title to the same had been
made to him by John Cleves Symmes, holding
the said legal title. That he came fairly into
the possession of this property, and at that time
had not the least notice or knowledge of the
supposed equitable claim of the said Bartle to
the lot. He further states that, whils he lived
on said lot, he frequently saw Bartle, who waa
often in the house on the lot; that said Bartle
never made known to him, or intimated to him
that he had any claim or title to the lot; that
while he was the owner of the lot, he made Jm-
provements on the same, of which Bartte had
knowledee. He does not believe, or admit,
that said Smith had any notice of the sever*)
matters and things set forth in the bill at tht
time ha received a conveyance f«r aaid lot from
Pur *. V^nOa st al. A
D Tus Bahx or TuK Urited Stato.
Uua defenJant, ab befor« BtAted, or that he
knew or bAd heard Anything of the auppuacd
right or cluiiu o/ *aid Rertle to said lot. He
further ilatcs that, ever since he took posseB-
■ion of lAJd lot, in the year 1797, there has beeD
A continued posseBsioii of tlie lame, under his
title thus acquired from aaid Sjmmei, by the
nwcesaive owners, as set forth ui the bill. He
knows nothing of the inability of said Bartle,
o* Aceouut of his poverty, to assert his title to
iAtd lot, if he had one; nor does be know that
the said Robert Piatt has purchased from the
i&id Barlle his right to said lot. And obtained a
conveyance from him for the same, and there-
fore he requires full proof of the same.
lOB*) 'The complainant filed a general rep-
lication.
The depositions of a ntimber of witnesses
were taken and Hied in the case, and on the
18th of December, 1831, the Circuit Court
Blade A dfn-rec dismissing the bill, and stating
hat the equity of the case was with the defend-
ants, and that the complainant was not entitled
to the relief t>oii|;ht.
The complainant appealed to this court.
The case was argued by Mr, Ewing and Mr.
Bibb for the appellant, and by Mr. Setseautand
Ur. Webster for the appellees.
The decision of the court having been given
on the b«r which was interposed by time, to
the right of the appellant to recover, the argu-
ments of eoiineel on the other points in the case
•re omiltol.
Upon the elTect of the statutes of limitations
of Ohio on the claim of the appellant, and of
time on the same, the counsel for the appellant
oontendcd that the length of time is no bar,
according to the facts and circumstances of
this case.
The question is. whether the claim set up
the bill is barred by the statute of limitations
of Ohio.
In AgKai T. Pickerell, a Atk. 222, 26th of
Jnne, 1745, upon a bill for redemption of
mortgaged premises, of which the defendant
had possession more than twenty years, the de-
fendant demurred. The Chancellor expressed
his opinion unfavorably to the demurrer. He
said, "how is it pnEsible to give greater allow-
ance to length of time than the statute of lim-
ttation does!" ''The plaintiff may, by way of
reply or amending his bill, make it appear he
la within the saving of the statute;" "or upon a
plea be may prove himself to be within tne ex-
ecptiona."
In 3 Atk. 31i, the same rule is obaerved, and
redemption decreed in behalf of a "prowling
asaigDee, who admitted he bad the equity of
ndemption for a very ineonsiderabls sum."
The plaintiff was not barred by the statute of
KadtAtions; and, altbongh the Chancellor was
■nch disinclined towards the assignee, he did
tons in his favor; declaring, "yet even lathe
saae of an assignee of the equity of redemption,
41**] If the circumstances 'would induce the
eonrt to decree redemption In favor of the
■ortgagor, the assignee who stands in his
pla«e will have the benefit of it."
In Higginson v. Mein, i Cranch, 41S to 420;
t Cond. Rep. 135, the debt was enforced
agaiaat the mortgaged premises, the presump
tion of pAyment from length of time being re-
pelled 1^ cireomstAncea. But After the dAbo-
• I<.«d.
rate ar^ment and decision of this court, on A
full investigation of the adjudged cases In
Elmenanrff v. Taylor, 10 Wheat. IBS; 6 Cond.
Itep. 47, it is unnecessary to labor the princi.
pie. It is said confidently, that, so far as the
defendants below have relied upon length of
time, the question is whether there are such
laches and nonclaim of the rightful owner of
this equity, for such a period as that he would
have been barred by the statute of limitations
of Ohio, supposing the p'siiitiff and those from
whom he claims had held the legal estate.
The provisions of the Act of Limitations of
the State of Ohio of 1804, applicable to this
case, are, the Rrst section, which limits the
action of ejectment, etc., or other posscHSory
action for lands, to twenty years; and the third
section, whith contAins the usual savings in
favor of infants, femes covert, persons insane,
imprisoned, "or beyond sea, at the time when
sucIj actions may or shall have accrued;" and
allows the period of twenty years before limit-
ed, "after such disability shall have been re-
mo lod."
The sections of the Act of IBIO, are the
second, which limits the timefor writs of eject
ment, or other possessory actions for lands, tu
twenty-one years; the third section, whirh eon
lains the like saving, as the Act of 1804. for
persons under disability of infancy, "beyond
," etc., and allows the like period of twenty.
years "after such disability shall have bui-n
]-emoved;" and the sixth section, which repeals
he Act of Limitations of 1604, and declares
hut this act (of 1810) shaU take elTect on the
»t day of June, 1610.
Tlie third statnte of limitations, passed 25th
of February, 1824, to take effect from the Ist
of June, 1824, is "An Act for the limitation
of actions." 22 Laws of Ohio, 325.
Section first limits, "first, actions of eject-
ment, or any other acl ion for recovery of
or possession of lands, tenements, or
hereditanipnts," to twenty-one years; and then
its ptTBoDBl 'actions to various short- [*41l
periods. Section second provides that "if
any person wlio shall be entitled to have or
romence any action of ejectment" "ahali be
thin the age of twenty-one years, insane,
feme covert, imprisoned, or without the United
Itates and territories thereof, at the time such
cause of action shall have accrued; and if any
person who shall be entitled to institute any
other action limited hy this act, shall be within
aforesaid, insane, feme covert, im-
prisoned, or without this Commonwealth, at the
time such cause of action shall have accrued,
every such person shall have a right to com.
mence any such action within the time here-
inbefore limited, after such disability shall be
moved."
The fourth and last Act, passed Sth of Feb
ruary, 18^0, is "supplementary to the Act en
titled, 'An Act for the limitation of actions.' "
Session Acts, 00.
t recites that doubts had arisen wheth-
er the Act passed 26th of February, 1824, doei
not suspend the operation of all former acts of
limitation on causes of action, prior to the ^'ith
of February, 1824, not barred by former acta
prior to that day; therefore, this act revives the
acts of 1604 and 1810, for the purpose of limit-
ing all actiona the causes of which may liava
17S
ill
SonnfE Cocn or ths tlmrtD States.
iccru«d after the 4th day of Januarj, UM, and
bertre the 25th of January, IBIO; or after the
esth of January, IStO. and before the 2.''>th of
Febniarj, 1824, according to the provision* of
thoae acts, "but for no otber purpose what-
tt wilt be evident from the repealing elauH of
tR24, nhich took effect June Ut, 1810, that as
to causes of action theretofore accrued, but not
then barred, the limitation ceased. Upon such
actions no statute of limitation had any bear-
ing until the passage of the Act of 1620; and
no bar can be worked unions tbc supplementary
Act of 1820 can produce such effect.
It has been decided that "beyond sea" means
■'out of the State." Shelbv v. Guy, II Wheat.
381; fl Cond. Rep. 3BS, The evidence in this
ease shows that Bartle was absent from the
State, and thus was fully entitled to the benefit
of the exception. Courts of equity will app'y
(he same rules as are eslahlished by statutes of
limitations, but they will not go beyond them.
Tfaey wilt give the benefit of the exceptions in
the statute, when they adopt the rules of the
statute. If it is necessary to set out specialty
412"] in the original bill the CKceptiou of "the
statute, as protecting the appellant, he should
be allowed to amend his bill; and the court
will remand the case, to give him an oppor-
tunity to supply the omisxion. Hut the com-
plainant may, on authority, amend; or may
prove that he is within tbp cxccplion of the
statute by evidence (3 Atkyns, 226); and this
i* the usual course.
Mr. Sergeaot and Mr. Webster, for the ap-
1. This proteclion Is derived from lonjth of
time, indip:;ndent of all atatulos of limilntions,
2. From (he express provision of the statutes
•f Ohio.
then
of eqi:
ity. The bit! has
obtained by the general
■ates; " "
It by
and if
dence, it would be dcniiirrablc. It would be a
case of a mortgagee in possession for upwards
of twenty years without payment of interest.
This, in England, would be a demurrable bill.
The possession of (ho mortjjaBee was tor thirty-
live years. Cases cited upon this position:
Hughes V. Edwards, 9 Wheat. 497; li Cond.
Bep. 648; Willison v. Watkins, 3 Peters, 43.
It is no answer to say that the prrson who
rinims title was out of the State of Ohio. The
exception is one by statute, but the rule is one
of courts of equity which has no excrplion,
8. The plnintiiT's ease is completely barred
by the statutes of Ohio, unless he can protect it
by the exception in the statute in favor of a
person "beyond seas."
In this case the appellant cannot avail him
■elf of the exception in the statute. Vattier
says he went into possession In ITST, and this
Is a l>ar, untess the excrplion operntes. The
appellant says be was out of the Slate. The
question is one of law, not of evidence.
The eomplainant havinf; filed his bil) in
Suity agBinst a person in possession upwards
thirty years, and the defendants asserting
the protection of the general provisions of the
«i«tutei of limitations; until the complainant
IS
shall establish by proof that the «xe«ptIoB ap-
plies to him, he cannot aval) himself of it. The
exception should have been put in Issue. Hia
■protection by tt should haTe been [•41»
averred in his bfll, or in on amended MIL
Cooper's Chancery Prac. 0, 12, 329.
How was it to be understood by the bill that
the material fact was to prove that Bartle waa
on the otber aide of the Ohio I
In a court of common law a party defendant
pleads the statute of limitations; the plaintiff
replies an exception, and he muat raise a prima
facie case by evidence. Thla will apply ii
There Is no evidence that the general red-
dence of Bartle was out of the State, The case
appears, on the proceedings, that the defend-
ants are to prove that Bartle is not within the
exception, before the plaintiff has proved tht
general absence of Bartle, to place him withia
the exception.
Mr. Juatlce Stoiy dellrered tbe opinion of
the court:
This is an appeal from the decree of the Cir-
cuit Court of the District of Ohio, in a suit in
equity, in which the preeeut appellant was
original p'ainlJlT.
In June, 1827, the plaintiff purchased of John
Bartle the lot of land in controversy (which is
asserted to be worth from £60,00^ to $70,000)
for the consideration, as stated in the deed of
conveyance, of $3,000; and the present suit was
brought in December of the same year. The
bill states that when the city of Cincinnati woi
laid out, in 1790, the country being then a wil-
derness, certain lots of the city were allotted aa
donations to those who should make certain im-
provements, and that the evidence of owner-
ship of iueh tots was a eertiScate of the pro-
prietors, which was transferable from one to
another, by delivery. That lot number one, on
the plat of the city (the lot in controversy ) , waa
allotted to Samuel Blackburn, who transferred
his right to one James Camplielt, who trans-
ferred it to Bartle in 1790, and the latter com-
eupy the lot under this certificate of title (or
several years, when, liecoming embarrassed, ha
mortgaged the lot to one Robert Barr, of Lex-
ington, Kentucky — of whom, the bill states, and
his heirs, if deceased, the plaintiff knows noth-
ing—for the sum of $700; for the payment of
which the rents received by Bartle from tba
tenants "in possession, were to be ap- t*414
propriated and paid. The UU then alleges that
Bartle afterwards lost tbe certificate in croasing
the Ohio River; that Cliarles Vattier, one <rf
the defendants, fraudulently purchased the
mortgage of Barr, and obtained possession of
the lot from the tenants, iu tbe absence of Bar-
tle from the country, and acquired the legal
title from John C. Symmes, in whom it was
vested. That Vattier afterwards sold the same
to one John Smith, who is since deceased, and
his heirs, if any are alive, are unknown to the
plaintiff, and who had full notice of Bartle'e
title. Ttiat Smith afterwards sold the same to
one John H. Piatt, since deceased, whose heira
are made defendants, who also had notice of
Bartle'e Utie; that Fiatt, in hU lifetime, mort-
gaged the MDie to the Bunk of the Unitod
rel«n t.
Furr T. Vatteu r ai. a
> TSB Bans or toe Uhitd SiATxa.
414
Btotea, which hka obt&tned poMciaion Midcoiii
plete mUs, with ths Uke noUcc. The bill farther
•harsM that Baitla ■aacrtod hia right to tha
Mauaea to Vattier, Bmitb and Piatt at various
BUMa, hit from poverty was unable to attempt
•nfordng tha aame in a court of equity, or s'--
«beT«: and that the plaintiff has recently,
Dwember, 1827, purdiued Bartle't right, and
•btaiiMd a conveyance thereof. The bill then
itaU« that the ptaintitT had hoped that the bank
wonld have surrendered the possession, or in
«K>e it refused so to do, that Vattier would
have accounted with the plaintiff for the value
tkereot, talcing an aecount of the mortgage
■oney paid to Barr, of the improvement a, rents,
profita, etc. But that tbe bank haa refused to
•urrendsr the possassion, and Vattier haa re-
fnasd to account. And it then praya • decree
againat tbe bank to surrender the possession,
and account for tbe rents and profits, and to
exBcnta a quitclMm; or. If tbe bank ia pro-
tected in the poascMlon, that Vattier ahaU be
decreed to account, and for general relief.
In their answers, Vattier and the Bank of tbe
Dnitod States assert themselves to be bona fide
porehaaers, for a valuable consideration, of an
ahaoluta title to the premises, without notice of
Baitle's title, and they rely on the lapse of time
alao as a d^enae. The bfll, as to the heirs of
J. H- Piatt, was taken pro confeeao, they not
having appeared in tbe causa.
From the evidence in the cause, It appears
that Tattler and those claiming title under him,
have been in poseesaion of the prenitaes, claim-
ing an absoluU title thereto, adverae to the title
415*] 'of Bartle, ever sines the 20th of March,
liW, tbe day of the data of the conveyance from
Symmca to Vattier. At the hearing in the
ureidt Oonrt the bill was diamiased, and the
rinsn now atanda before thia court upon an ap-
fsal taken from that deeiaion.
Various questions have been made at the
nmeat before us as to the nature and cbai
ter of Bartle's tlUe; and, if he had any valid
title, whether the purchasers under Barr had
■otka of it. With these and some other quea-
tfona, wa do not intermeddle; because, in our
vUw of the cause, they ar« not itecesBar/ to a
anmet decision of It.
The Important question Is, whether the
■InintiS is barred by the lapse of time; for we
do not Bnderstand that the adverae possession
pnaenta, under tbe laws of Ohio, any objection
to tba transfer of Bartls's title to the plaintiff.
If B«rtle himaelf could assert It In a court of
eqaity. This question has been argued at the
bar under a double aspect; first, upon the
(nmnd of tbe statute of limitations of Ohio;
and second, upon the ground of an equitable
bar, by mere lapse of time, independeotly of
that statute.
Ib regard to tbs atatnte of limitations, it is
ttmr that tbe full time has elapsed to give ef-
Iset to that bar, npon tbe known analogy
adopted by courts of equity in regard to trusts
■( real estate, unless Bartte Is within one of the
exceptions of the statute by his nonreaidence
and sbaenee from the State. It Is said that
there Is complete proof In tbe cause to establish
lea floatb Hea Company v. WTmonilirll. 8 P.
Whl 143. 145. and Kr. Cola's note; Coqpar'a Bq.
PI. S54. 2U i Smith v. Oaf, • Brg. Ch. Asp. UO,
auch nonreaidence and absence. But the dlffl-
culty ia that the nonreaidence and abaence
aro not chnrffcd in the bill, and of eouisa ar*
not denied or put io issue by the answer, and
unless they are so put in iaaue, the court e«l
take no notice of tbe proofs; for the proofs to
be admiaaible muat be founded upon some alle-
gations in the bill and answer. It has been
Bupposed that a different doctrine was held bf
Lord Hardwicke in Aggaa v. Pickerell, 8 Atk
228; and Qregor v. Ualeaworth, 2 Vee. 100;
and by Lord Thurlow in Deloraina v. Brownie,
3 Bra. Ch. Bep. 632. But these eaaea did
not proceed upon the ground that proofs wh«
admiBsible to show the party, plaintiff, to be
wilhin the exception of the statute of limlta-
tiona, when relied on by way of plea or answer,
and the exception was not stated in the bill, or
apecially replied; but upon the ground that tba
omiaaion *ia the bill to allege auch ex- l*41t
ceptlon could not be taken by way of demurrer.
And even this doctrine is contrary to former de-
cisions of the court* and it has since been ex-
plicitly overruled, and particularly In Beckford
V. Close, 4 Vea. 470; Foster v. Hodgson, 10
Vea. 180, and Horenden v. Lord Annesley, S
Scb. ft Lef. 037, 636. And the doctrine Is
now clearly establiabed that if the statute of
limitationa la relied on aa a bar, the plaintiff, if
he would avoid it, by any exception In the
etatute, must explicitly alle^ it In his bill, or
specially repl^ it; or, what is the modem prac-
tice, amend his bill, if it contains no suitable al-
legation to meet the bar.' In the present caie,
if the merits were otherwise clear, the court
Ight remand the rauae for the purpoae of
they rely generally on the lapse of time, do not
specially rely on the statute of [imitations aa a
b«r; and the case may, therefore, well be de-
cided upon the mere lapse of time, independ-
ently of the statute.
And ne are of opinion that the lapse of time Is,
upon tbe principles of a court of ^uity, a clear
bar to the present auit, independently of the
statute. There haa been a clear adverse pos-
aeaslon of thirty yeara without the acknowl-
sdgment of any equity or trust estate in Bartle ;
ind no drcumstanees are stated in the bill or
ahown in the evidence which overcome the ds-
cialve influence of such an adverse possession.
The established doctrine — or, aa Lord Redesdale
K' rased it, in Hovenden v. Annesley, 8 Scb. ft
f. C:T, 638, "tbe law of courts of equity"—
from its being a rule adopted by those courts,
independently of any positive le^slative limita-
tions, ia that it will not entertain state demands.
Lord Camden, in Smith v. Clay, 3 Brown's Ch.
Rep. 640, note, stated It in a very pointed
ler. "A court of equity," said he, "which
iver active in relief againat conacience or
public convenience, haa alwaya refused its aid
stale demands, where the party has slept up-
hia rights, or acquiesced for a great length
time. Nothing 'cAn call forth this [•411
court into activity but conscience, good faltb
reasoiisble diligence. Where these are
iting, tbe court is passive and does nothing;
-. See Belt's note
Browne. 8 Bro. Ch.
■'■'^Ilrs, « FetaiO, 61
0 the case of DelorslBS i
lep. 010, note 1. Ulllar i
«17
Burauuc CoUBT of the Ukiigd Statkb.
IttohM uid neglect are aIwajtb diacountenanced.
•nd therefore from the bpginning of thli juris
dictioQ there wa* always a liniitelion of suit in
thia court." The aame dtx'triue hM b«en re-
pMtedJf recogniced in the British courts, >«
vill abuudkutlj appear from the cases already
cited, u well as from the great cue of Chol-
mondeley r. aiaton, 2 Jac. & Walk. 1.' It
haa alao repeatedly received the sanction of thr
Amerkan courts, and waa largely discuaaed in
Kane v. Bloodgood, 7 Johns. Cb. Rep. S3i
and Deoouche t. Saratiere, 3 Johns. Ch. Rep.
IBO. And it has been acted on in the fullest
manner by thia court, espetially in the cases of
Pravost V. GraU, 6 Wheat. 481 ; B Cond. Rep.
148; Hughes r. Edwards, g Wheat. 489; 6
Cond. Rep. MS; Willison r. Matthews, 3 Pe-
ters, 44i and Miller t. M'Intire, 8 Peten, 01,
80.
Without, therefore, going at large lata the
grounds upon which thia doctrine ia eatabliahed,
though it admits of the moet ample vindi'
cation and support, we are all of opinion that
'* lapae of time in '
te bar to the reli
t of the Circuit Courf die:
ought to be affirmed with costa.
Thia cause eame on to be heard on the traa-
•eript of the record from the Circuit Court of
the United States for the District of Ohio, and
waa BTgued by counsel; on consideration where-
of, it ia decreed and ordered by thia court that
the decree of the aaid Circuit Court in this
cause be, and the same is hereby affirmed with
JOHN LLOYD.
Ustiry — province of court — purchase of rent
charge — if real contract be for Joan of money
It la within statute.
Scbalfleld applied to Moor* to ralsa or borrow
•B.OVO. aKurlng bim an u snoelt;, «r grouod
rant, on lUlDcienl real eitat*. Cor one jear. Uoore
preposed to let him hsTe the monfj for len yearr
OD tbe same security. After much d[acnss!oD tb<
psrilea sgreed ta divide the dlSereDce. and that 8
.1 — .^ . .... .|n„jy ((,[. (j^j years. A deed U
anfllclent r._. , ._ .
trict ol Columlila. securlog the snnultj, v
cufed bT 8.; aud the snnulij or groand re
paid for same years, gcholfleld, after the ei
ot the deed, securlujc the SDDuIty la Uooi
— il oaerejed thr — ■--- --■-■--- ■- — - --
' Dls-
rents to Uoore,
n the alleESllDB that
tter ». aidgard, 1 ( .„,
V. Dsf , 1 Batl. A Beatt. Kep. 104 : Hsrd; i
fteevea, 4 Tea. 4TB: Harrlnrton w. finltb, 1 Bn
Par. Css. es.
404.
Nora— As to usury, see note to 2 L. ed. V. 8.
to defense ot usury. Bee ante to
usury, see eote to A2
S L. rd. U. 8. 20S.
As to coDBlct '
L.R.A. 83.
Taklne iDtereat in sdysDC* not usury. See
te B L. ed. U. a. 031.
Questions of Is* and fact, tor court or Jury,
oof to 8 L. ed. U. 8. IM. ' '
fraud and uaury In the tranaactlon. and that ttk*
Etaat of the annuity was tberrfore void. At tba
jlnie tblB notice ws> glveo. Scholfletd SKreed In
rfi'ltlni to Indemnify sod ksve Lloyd frum loss, 11 a
TbtS w
-, .-, _ -. ents witk
:bolfleld. of all his (Schoineldi) Interest In lb*
roTerslon of tbe estste on which the rent was a*i-
eured, or any benefit or adTantBge tram th» anlt^
and was dlscbaried l>y tbe Inealvtnt law of Vlr-
tlaia; but no release ot Bcholtleld by Lloyd, troH
Is reaponalbllity to bbtc him hsrmleaa, tw the r^
■IstaDce of the distress aad tbe scIIdd of replCTln.
Ud the tilal of the :
In In tbe Circuit Court, Bchoineld ws) eTamlned
as a witness In fSTOr of I.loyd, to ihow that, the
orlalaal contract between blm and Uoore wa» usB-
rlous. Held, that be was an Interested and iuoooi-
pelent witness.
Tbe statute aialnst usury not only forhlds ttM
direct taking more than sli per centum per annam
tor tbe loan or lotbearance of any sum ot money,
but It torblds any shift or deTice by whleb tbfa
prohibition may be evaded, and a greater Interest
be In fact secured. It a larger aum than aii pei
cent, be not eipreisly reacrTed, tbe InaCroDieot will
not of Itself sipose the usury, but the real curmpt-
neas at the contract must be shown by eitrinslv
circumstances, which proTs Its character.
Tbe court wss requested to say to tbe Jury that
the facts glyen In evidence In the trial ot tbe ease
did not Import such a lending aa would support tbe
defense at usury.
Br THi ConsT: The court was asked to tiaurp
the province of tbs Jury, and to decide on tbe suffi-
ciency ol tbe tesllmoDy. Id vlolallou of the weli-ea-
Ubllshed principle Ihst the law Is referred to the
court, tbe tsct to the ]ur
for the forbearance
been settled thai t
wblLb more tbaa
the olense there
of uBuri, If more than legal
The Ingenuity of lendeia
trlvauces by which, nader
ll«t and most common of tt
annuities, secured upon rei
sale, hag aerer been considered as ua
more than sli per ceni. tram b-^ sect
apparent that It glilnc this form t
will srord a cover whrch couceara 11
Invest [gatloD, the alstnte would b
letter. Courta, therefore, perceived
of d la regarding the fori- --- ■
bona tide
M, thOURta
■eoHl
It t1
ipllFBtlon ot the
_ Jill protect It.
Though this principle may be eitra<
tbe cases, yft as each depends do Its
stances, and those clrcumntanceB are
itely varied. It ought not to surprli
be aame Beemlnjc confllcC Id the ai
rule by dlSerent Judges. DIffeien
dlfftrent degree of weight to tbx .~ — „.^_-
The covenants tn tbe deed from Scholfleld. grant-
ing the annuity to Uaare, aecute tbe payment of
ten per cent, forever on the sum advanced. There
Is no haiard whatever Id the contract UiNns
must, In aomethlng more than twenty years, receive
the money he baa advanced, with the legal Interest
on It. uafess the principal sum shuuld be returned
after five years ; in which event he would receive
the principal with ten per cent, interaat. Tbe deed
Is egulralent to a bond for £S,nO0. amply secured
by s mortgage on real estate, with Interest at ten
per rent, thereon, with liberty ta repay the ~
five years.
ly view to purchase. It la
.s Ju>7 which weald separata
Gw'tt, ISAti.inr or MoiiBa, v. Ij^vd.
41V
tOGrtbcr, to iDllruct tlinD Ihiit, ».'|niulplj, uo oua
W'tbt courne of thp IrUt of th* M.iae In the Clr-
■^it Conrt. Ihe ronnnpl for Ihr plnlntlT oLJect«d (o
m qnrmlloii put bj the drfpiidanl's couuwl to a wit-
•en. u belnt > leading qu^mioa.
Ui THE iuiir; Alilioujib the pUlDtliri counatil
•fc}tc1td lo Ihii gue-Hllpn. and lald that he picpm^d
•B tlw oplDlao of Ihp rourt, no eiceplloo Is actuellj
pni7«) lj» tb» party and algopd by ilie JuOkp. Th,«
" u RlMbdancd.
Uar«h, 162S, . . .
OcHirt of the United States for the Countj
4tO*] *of Alexandria, agaitiRt Chariss 8cott,
Iwiliff of William S. Moore; and a dpclaration
waa filed in the common form, at September
imlefl of the eame jrear. In November, 1827,
ttbe defendant ttied the following avowrj:
"Cliarlpa Scott, bailiff, etc., at suit, John
Uofd; and the said Charlea Bcott, by Robert
J. Taylor, hie attorney, eoiries and defends the
foree and injury, when, etc.; and aa bailiff of
William 8. Moore, well aelcnowledges the
lakiag of the said goods and chattels. In the
Mid place, when, etc., and justly, etc.; be-
Cftuae, he aays, that before tlie said time when
tka aaid, the takinf; of the laid goods and
chattels, is nippoF'i'd to have been made, one
Jonathan Sfbolticld was seized in his denicatie
in fee of four brick trnementa, and a lot of
ground, whereon they stood, on the eaat side
of Washin^on Street, and north aide of Duke
Street, in the town of Alexandria, and county
aforesaid, whereof tha aaid place, when, etc.,
ia, and at the said tima when, etc., was parcel,
and being so seized, aa aforesaid, of the said
tenements and lot of ground, he, the said Jona-
than, and Eleanor his wife, afterwardH, and
before th« aaid time, when, etc., to wit, on the
Ilth day of June, 1SU, at the countv afore-
said, by their certain indenture, dat«a on the
■aid litb day of June, 1814, and here now to
the court shown, in consideration of the sum
«f SJMO dollars by the said William paid to the
aaid Jonathan, granted, bargained, and sold to
tb* aaid William, one certain annuity or yearly
rent of 600 dollars to be inuring out of, and
diargcd upon, the Raid four brick tenements and
lot of ground, whereof the said place, when,
etc.. Is parcel, to be paid to the said William, hii
keira and assigns, by equal half-yearly pay-
ments of 250 dollars caph, on the 10th day of De-
cember, and on the 10th day of June, in erery
year forever there after. To hold the said
annuity or rent, so aa aforesaid charged and
payable, to the aaid William S. Moore, his
Mira and aasi^s, to hia and their only proper
naa forever; and the said Jonathan Scholfleld,
for himself, hia heirs and aaaigns, did by the
said indenture, among other thinfn, covenant
with the said William S. Moore, his heirs and
mmigiu, that be, the said .Innathan ^hoiricld,
hiaWrs and assigns, would well and truly
tuiMj and pay to the snid Willium S. Moort
Us heirs and aasigna, the said annual ren
-of MO dollars, by equal half-yearly paymenti
431*J *>■ •faraai^ fonvw, aad that U the
snid rent should not be p'tnclonlly pa , aa It
bernnie due, then that on every such iefault
it should be lawful for the said Wf iam S.
Moore, his htire and assi<;ns, from ,ime to
time, to entpr on the said four tenea nts and
lot of ground, so as aforesaid cha ged, of
which the said place, when, etc., is pare il, and to
■y by distreas and sale of the guods «iid chat-
tels there foind, the rent in arrear, and he costa
of distress and sale; of which aaid ret 1, so ai
aforesaid grunted, the said Witlian- becama
end was si'ized undpr the said deed, ai I by t)ia
perceptidn thereof, that la to aay, on the lltb
day of Deccmlier, in the year 181- , at the
county afnrc^siil. and has since remi lued, and
yet is seized thereof.
"And afterwards, that is totay,oi the 29tb
day of October, in the year 1816, at t.ie county
aforesaid, the said Jonathan Scholliild, and
Rleanor, hia wife, by their certain deed of
bargain and srle, under their seals, dated on tbe
day and year la-^t mentioned, bargained, sold and
conveyed to the said John Lloyd, his heirs
and assigns forever, certain teneme.its and lots
of ground in the said town of Alexandria,
whereof the aaid four brick tenementa and lot
of ground before mentioned, including the
fa'id place, where, etc., is and was parcel, subject
by the terms of thesaid deed to tlicp^iyment of
the said annuity or rent of SOOdotlara to thesaid
William S. Moure, his lieira and assigna, under
and in virtue of which said bargain, aale and
conveyance to him, the said John entered upon
the said tenements and lots of ground so to him
bar;;;ained, sold and conveyed, of which the
aaid place where, etc., is, and was pnrcel, and
became thereof sciied and posscHxed, that is to
say, on the said ZOth day of October, in the
year 1818, at the county aforeaaid, and ever
since hoa continued, and yet ia ao seired and
posaeased; and becnme, after the said bargain,
sale, and convej-ance, to the said plaintiff as
aforraaid, and after hia entry, aeiain and poa-
session of the premiaea. including the said
p'ace, where, etc.; and whilst he so continued
seized and pnasessed as aforesaid, the sum of
250 dollars of the annuity or rent aforeaaid,
for the half year ending on the 10th day of
June, in the year 1824; and the further sum
of 250 dollars of the said annuity or rent, for the
half year ending on the 10th day of December,
in the year, 1824, became and remained In
■arrear and unpaid to the said William [*42a
S. Moore, he. the said Charles Scott, as bailiff
of the said William, and by his command and
authority at tbe said time when, ete., entered
on the said place where, etc., being parcel of
the said four briclc tenpmcnts ana lot of
ground, so aa aforeaaid charged, with the aaid
annuity or rent, and liable to the distreas of tha
aaid William, and took and carried away the
said goods and chattels in the declaration men-
tioned, then and there being found in the said
place, where, etc., parcel of the said four
tenements and lot of ground, as a distress tar
the said rent so in arrear aa aforesaid, to tha
said Willivm, oa he lawfully mi^ht, and this
he ia ready to verify, etc-; wherefore the said
Charles prava ji-rlTment for the sum of 1,000
dolLirn. bciu; <loiili!c the value of the s:>i<1 rent so
in arrear and distrained for as aforesaid, witb
full coRts of suit, ete.,aocordiDg tothaatatutala
that eaaa provided.
*S2
GUPREME CuUBT OP TUB UnITID STACKS.
"The plain tiir« attorney tliereupon Bled
(our leveral plem, the first of wtijdi waa;
"And the uiid Jolin, bj Thom:tii Swann, hia
attorney, praya oyer of the mid indenture
from the said Jonuthan Scholf)eld,and Kleanor,
hia wife, to the said William S. Moore, in the
•aid cognieance mentioned, and the same ia
read to him in the«e words, to wit: wiiicb,
being read and heard, the laid Jolin saith that
the Baid Charles, aa bailitf of the eaid William
S. Moore, for the reasons before alleged, ought
not justly to acknowledge the taking of the
rids and chattels aforesaid, in the said place,
vhich, etc., because he eaith tliat before the
making of the said indenture, that is to sey,
on the nth day of June, in the year 1814, at
the county aforesaid, it was corruptly agreed
between the eaid Jonathan Scholfleld and the
•aid William S. Moore, that the said William
8. Moore should advance to him, the taid
Jonathan, the sum of S,000 dollars; and, in con-
■ideration thereof, that he, tbe said Jonathan,
■Dd the said Eleanor, his wife, should grant, by
a deed of indenture, duly executed and delivered
to him, the said William, his heirs and assigns
forever, a certain annuity or rent of 500 dollars,
to be issuing out of and charged upon a lot of
ground and four brick tenements, and appur-
tenances thereon erected, on the east side of
Washington Street, and on the north side of
Duke Street, in the town of Alexandria,
423*] bounded •• follows: 'Beginning at the
Intersection of said streets; Ihenee north, on
Washington Street, eighty-seven feet, more or
leas, to the partition wall between the fourth
and flfth tenements from Duke Street; thence
east parallel to Duke Street and with said par-
tition wall one hundred and twelve feet to an
alley; tbence with the tine of the aaid alley
eighty-seven feet to Duke Street; thence on
Duke Street, west, to the beginning; to be paid
to the said William, his heirs and assigns, by
equal half-yearly .payments of 2fi0 dollars on
the loth day of December, and on the 10th day
of June, forever thereafter. And it was farther
eorniptty agreed that he, the said Jonathan,
in and by the said deed of indenture, should,
for himself, his heirs, executors, administra-
tors and aasigns, covenant with the said
William, hia heirs and assigns, that he would
well and truly pay to him, the said William, his
heirs and assigns, tbe said annuity or rent of
000 by equal half-yearly payments, on the 10th
d«y of June, and 10th day of December, in
each year, forever thereafter, as the same
should become due ; and that if the same should
not be punctually paid, that then it should be
lawful for the said William, hie heirs and as-
signs, from time to time, on every such de-
fault, to enter on the premises charged, and
to levy by distress and sale of the goods and
chattels there found, the rent in arrear and the
costs of distress and sale; and if the same
should remain in arrear and unpaid for the
apace of thirty days, alter any day of payment
aa aforesaid, and no distress sufficient to satisfy
the same could t>e found on the premises, that
then it should be lawful for the said William,
Dis heirs and assigns, to enter upon the premises
charged, and from thence to remove and expel
<he said Jonathan, his heir* and assigns, and to
hold and enjoy the same as his and their ab-
wluta «>t«(« forever thuMfterj and It was
ISO
•aid
illiam, thal^ be,
the said Jonathan, should enter into Ihea*
further covenants in the said indenture, that ia
to say, a covenant that he, the aaid Jonathan,
at the time of the execution of the aaid in-
denture, was then in his own right, seized in
fi«-einip]e in the premises charged, free from
any condition or incumbrance, other than such
as were specified in a deed from the said Jona-
than to Robert J. Taylor, dated the day
of ; and that he, the said Jonathan, his
heirs and assigns, would, forever 'there- [*494
after, keep the buildings which then were,
or thercafier might be, erected on the premises
charged, fully insured against Sre in some in-
corporated insurance office, and would assign
the policies of insurance to such trustee as the
said William, hie heirs or assigns might ap-
point, to the intent that if any damage or de-
struction from fire should happen, that the
money received on such policies might be ap-
Slied to rebuilding or repairing the buildings
estroyed or damaged; and that he, the said
Jonathan, his heirs and assigns. wo\]1d execute
and deliver any further cnnvcynnce which
might be necessary, more coinplctel.v to charge
the premises before mentionetl with the fliitiuity
aforesaid, and to carry into full t'lfict Ihc in-
tention of the said parties; and. IkkiIv, Hint he
and hie heirs would forever UKtrnnt and defend
the annuity or rent, so agreed to lii' gruniiHl to tlie
said William, his heirs and ns!ti;.'iiK. itpiin^t any
defalcations and deductions for. or mi iiccuunt of,
any act of him, his heirs or as-i^ns; and the
■aid William did further corruptly B^ee that he
would, in the said indenture, covi'nnnt for
himself, his heirs and assigns, with the aaid
Jonathan, his heirs and assigns, that if the said
Jonathan, his heirs or assigns should at any
time thereafter, at the expiration of five years
from the date of the said indenture, pay to
the Bsid William, his heirs or assigns, the
sum of 6,000 dollars together with all arrears of
rent and ratable dividend of the rent for the
time which should have elapsed between the
half year's day then next preeedinr, and the day
on which such payment should oe made, he,
the said William, his heirs and assigns, would
execute and deliver any deeds or instruments
which might be necessary for releasing and
extinguishing the rent or annuity thereby
agreed to be created, which, on aueh payments
being made, should forever after cease to be
payable.
"And the said John saith that afterwards, to
wit, on the same day and year aforesaid, at the
county aforesaid, the said William, in pursuance
and in prosecution of the said corrupt agrse-
ment, did advance to the said Jonathan the said
sum of 6,000 dollars ; and the said Jonathan, and
Eleanor his wife, and the said William, did then
and there make, seal, and duly deliver to each
other, respectively, the said deed of indenture,
as their several acts and deeds, which said deed
was duty acknowledged by the said Eleanor,
and admitted to record. And 'so the [*49B
said John saith that the said deed of indenture,
in the said cogni!«nea mentioned, was made in
consideration of money advanced upon and for
usury; and that by the said indenture there haa
been reserved and taken above the rata of six
dollars in the hundiad for the forbearanos of Uu
SooTT, Bailut of Hookc, t, Lloid,
taii tam of S^OOO dollu* to ftdraoeed u tJon-
■kilt for tbe term of ont yekr, and that the uid
John U ready to verify; whereupon he prava
Judgment, if h« oiuht to be charged with t^
rant aforeaaid, bj vvtue of the indenture afore-
nid; and foraamoch aa the laid Charles halh
•efcnowledged tbe takina of the aaid gooda and
•hattala, Iw, the laid Joan, pray* judgment and
Ua duaagea, on occasion of the taking and un-
Sit detaTning of the aaid goodi and chattels,
be adjndged to Um, eteJ"
The ■emnd plea (a In all reepecta like the flrat,
•zcept It states that the agreement was that
Ifoora should "lend" to Schol field S.OOO dollars.
Ittbenatataathattheputieeagreed a deed should
bo made eontajning all the covenants set forth
!■ tbe flrat plea. It then avera that in purauance
and la proaecutlon of this corrupt agreement,
IfooT* did advance to Scholfield the sum of G,000
dollara; and that Scholfield and wife, and Moore,
mada and ezoentad the deed aforesaid, in pur-
manco of this corrupt agreement, which waa
n acknowledged and admitted to record,
that the deed was made in consideration
of "money tent upon and for usury;" and that
^ it th^ haa been rceerved and taken above
the rata of aix dollara in the hundred, for the
forbearanee of the sum of 5,000 dollara ao lent aa
aforeaaid, for the term of one year, Thia plea
•cmeltidea aa the llrat don.
The third plea ia more general than the Irat
and aeeond. It states that before the making of
the indenture, that is to say, on the 11th of June,
MI4, It was corruptly agreed between Scholfield
and Hoore that he, Hoore, should "advance" to
Um, Beholflcld, the sum of 6,000 dollara, upon
the tenna and conditions, and in considei-atioD of
the eorennnt* and agreements in the indenture
nentloned and contained; and that in pursuance
of this eorrupt agreement, and in the prosecution
and fnllUlment of the same, Moore did advance
to SdMilBeld the sum of fi,000 dollars, and they,
SebolHcId and Moore, did make, seal, and duly
deliver tfao deed to each party respectively, as
tMr net and deed. And that the deed was in
4SC*] consideration *of money advanced upon
and for uaury, and that by the indenture there
haa been taken and reserved above the rate of
aix dotlara in one hundred, for tbe forbearance
of tbe sum of 6,000 dollara, ao advanced as
aforeaaid for the term of one year. This plea
cooelnde* aa the first doe*.
Tha fourth plea is like the third, except It is
aUted that the agreement waa to '^end'' 6,000
dollam upon the aarae terma atated in the third
plea. It then avers that In purauance and In ex-
ecution of tha corrupt agreement in the inden-
tore mrationed, Moore did "lend" to Schol Held the
aam of 6,000 dollara; that the deed was duly ez-
ecaled by the parties, and recorded; that it was
■•de ia eonaf deration of money lent upon and
for ttmiT, and that by the aaid deed there haa
htMreaerved and taken above the rate of six
Mlara la the hundred for the fwhearanee of the
■nm of 6,000 dollara, ao lent aa aforeaaid, for the
faf^ of ona year. Thia plea condudea aa the
•tken do.
To each of these pleas there waa a apedal
dnmirrer, and particular oauaea of demurrer aa-
aiitned.
The CSrenIt Ootirt, la November, 1828, gave
Jiiltiii III for the defendant; and the plaintiff
MBoeated a writ ci «iTor to tUa wnrt. <
At the January Term, 1B30, of the Bnpranu
Court, the judgment of the Circuit Court waa
reveraed, and the case was remanded to the
Circuit Court with instructions to overrule the
demurrer* to the second and fourth pleas, and to
permit the defendant to plead, and for farthn'
proceedings, etc. 4 Peters, 231.
On tbe coming of the mandate into the Cir-
cuit Court, in November, 1830, the demurrara
were withdrawn, and there was a general repli-
cation to the pleas tiled In November, 1327.
The case waa then, on the application of the
defendant, removed to Washington, and a tran-
script of the record of proceedings, with the
original papers, was transmitted to the clerk of
the Circuit Court of the County of Washing-
At November Term, 1832, of the Circuit
Court, the causa came on for trial, and a ver-
dict and judgment were entered in favor of the
r'Hintiff.
Tbe defendant sued out this writ of error.
On the trial, the counsel of the defendant flied
four bills of exception.
'These excrptiona are set forth at large [*427
in the opinion of the court, and the evidence
given on the trial of the cause, ia particularly
stated in the first exception.
The material parts of the deed from Jona-
than Scholfield and wife to William 8. Moore,
referred ^o In the pleas of the plaintiff in the
Circuit Court, were:
"The indonture is dated the 11th of June,
18U, and ia from Scholfleld and wife, of Alexan-
dria, in the District of Columbia. It recites that
in consideration of 6.000 dollars in hand paid by
William S. Moore, of the same town, he grants,
bargains and sells to the aaid William S. Moore,
hia beirs and assigns forever, one certain annu-
ity, or rent, of 600 dollars, to be issuing out of and
charged upon a lot of ground" (describing the
Kemises), "to be paid to tbe aaid William S.
oore, hia heirs and assigns, by equal half-
yearly paymentaof 250 dollnre, on the 10th day of
December and on the 10th day of June, forever
hereafter, to hold the said annuity or rent, to
the said William S. Moore, his heirs and assigns,
to his and their own proper uee, forever. And
the aaid Jonathan Scholfield, for himself, his
heirs, executors, administrators and assign^
does hereby covenant with the said William 3,
Moore, bis hpirs and assigns, aa foUnwe, that ia
to say, that he, the said Jonathan Schofield, his
heirs and assies, will well and truly pay to the
said William S. Moore, hia heirs and assigns, the
annuity or rent of 500 dollars by eouat half-
yearly payments on the 10th day of June and
on the loth day of December in each year for-
ever hereafter, as the same shall become due,
and that if the same be not punctually paid,
then It shall be lawful for the aaid William S.
Hoore, his heira and assigns, from time to time^
on every such default, to enter on the premises
charged, and to levy, by distress andaaleof tbe
goods and chattels there found, the rent in ar-
rear, and the costs of distress and sale; and if
the same shall remain in arrear, and unpaid for
the space of thirty days after any day of pay-
ment aa aforesaid, and no distress auffleient to
satisfy the same can be found on tbe premlaea
chart^ed, then it shall be lawful for the aaid
William S. Moore, hia heira and assigns, to en-
tar on the premiaea charged, and from thence
ur
StJFUKX ODon or the UinnD Btirwa.
tM, Us befrs mni msslgnl, tad to bold knd
4XS*] 'enjoy the BBme as hi* and their abao-
lute estate forever thereafter. And further,
that be, the iaid Jonathan Scholfleld, Is non in
hiB Dvn right seized io fee-simple in tb« prem-
ises charged aforeflaJd, free from an]r condi-
ion or incumbrance other than such as are spec-
ified and provided for in a deed from the said
Jonathan Scholfleld to Robert I. Taylor, daUd
the day before the date hereof, and that he, the
said Jonathan Schol&eld, bis heirs and assigna,
will forsTer hereafter keep the buildings and
ImproTement* which now are or hereafter may
be erected on the premises charged, fully In-
sured against fire in some incorporated insur-
ance ofbce, and will assign the policies of inaur-
aoce to such trustees as the said William S.
Hoore, his heirs or assigns, may appoint, to the
intent that if any damage or destruction from
lire shall happen, the money receiTcd on such
policies ma^ be applied to rebuilding or repair'
ing the buildings destroyed or damaged. And
that he, the said Jonathan SchoIQeld, his heirs
nd assigns, will execute and deliver any farther
noDveyance which may be necessary more com-
pletely to charge the premises before described
with the annuity aforesaid, and to carry into
full effect the intention of the parties hereto.
"And lastly, that he and bis heirs will forever
warrant and defend the annuity or rent hereby
granted to the said William B. Moore, his heirs
and assigns, against any defalcation or deduc-
tion for or on account of any act of him, his
heirs or assigns.
"And the said William 8. Moore, for himself
and his beirs and assigns, does hereby covenant
with the said Jonathan Scholfleld, bis heirs and
KBsigne, that if the said Jonathan Bcbolfteld, his
heirs or assigns, shall at any time after the ex-
piration of live years from the date hereof pay
to the said William 8. Moore, his heirs or as-
signs, the sum of S.0OO dollars, together with all
arrears of rei't. and a ratable dividend of the
rent for the time which shall have elapsed
between the half year's day then next preced-
ing and the day on which such payment shall
be made, he the said Willaim S. Moore, hie
heirs or assigns, will execute and deliver any
deed or instrument which may be necessary for
releasing and extinguishing the rent or annuity
kereby created, which, on such payments being
made, shall forever after cease to be payable."
42**] 'The case was argued by Mr. Coze
and Ur. Tones for the plaintiff in error, and
by Ur. Key and Mr. Swaan for the defend-
ant.
The counsel for the plaintiff in error present-
ed a brief of the grounds on which they claimed
that the Judgment of the Circuit Court aboutd
b« reversed. The brief stated:
On the trial which gives rise to this writ of
error, various questions were presented, which
appear in the several bills of exceptiona an-
nexed to the record.
The first was to the admissibility of Jopatban
Sdiolfleld M a witness.
The (grounds on which this witness wm ob-
)Mt«d to are apparent on the record.
1. He waa a party to the instrument now
■ought to b« Impugned.
B. Ha was ■ party In intsreat.
t, Hb tMtimonf wu inoompateat, beoausa
it went to vary and eontraflot the written ea»-
tract between the parties.
Various releases, etc., wen adduced by the
plaintiff to remove the abjection arising from
bis interest.
The second exception presents a question for
the decision of the Supreme Court, growing ont
of the refusal of the Gircnit Court to Instruct
the jury, aa prayed by the counsel for the de-
fendant.
The testimony before the jury was both writ-
ten tnd parol. The written embraced the dee<d
between Scholfield and Moore, which Is incor-
porated into the pleas of plaintiff, and the parol
testimony Is that of the several witnesses whose
evidence is given at length In the ivcord.
The court was asked to instruct the jury that
the contract between said Jonathan Scholfleld
and William 8. Moore, such as it is evidenced
by the deed from said Scholfleld and wife to
said Moore, was lawful, and free from the taiat
of usury. In order to impeach it of usury, and
support the issues of fact joined in this cause, <>■
the part of the pIsintiS, it is necessary for the
plaintiff to prove that, besides the contract im-
ported by the terms of said deed, there was an
actual contract between said Bdiolfield and
Moore for the loan of 6,000 dollars at usurious in-
terest, to wit, at the rate of ten centum per ui<
num, *to be disguised under the form [*4S9
and name of an annuity, or rent charge, and that
such loan was actually lent by said Moore to
said Scholfleld, and si^d deed given in pnr-
snance and execution of such contract aod
loan, securing the as id usurious Interest, undar
the form and name of such annuity or rest
char^) that the facta so given In evidence ts
s sufficient to support
, pleaded to the cog-
interest, 1
the issues joined on tb
replevin upon the sect
the plaintiff In replev
nizance in this ease.
This instruction the court refused to giva,
and the defendants excepted, and will contend
that such refusal was erroneous.
The plaintiff prayed the court, upon the
aa6 evidence, to instruct the jury that the
matters shown in evidence to the jury as afore-
said are proper for the consideration of the
juiy, to determine, from the whole evidence,
under the' instrucUon of the court aa already
given to them In this cause, whether the aald
contract so made between the said Moore and
Scholfleld, was in snbetanee and effect a loan
at usurious interest, or a bona fide contract for
the bargain and sale of a rent charge; and It
the jury, from the said whole evidence, under
the instruction as aforesaid, shall believe It tc
have been such a loan, they should find for th«
plaintiff; if otherwise, for the defendant.
This prayer was granted, and the pluntiff la
Tor contends that the instruction should not
have been given aa prayed.
or the defendant then prayad
the court to instruct the jury that If they shall
believe, from the evidence aforesaid, that ihm
land out of which the said rent charge men-
tioned In aaid deed from Beholfleld to Moor*
was to issue, was In Itself, and bidependentlj
of the buildings upon the same, whoUy Inadv-
qnata and InsulSaieiit Mea>it7 for the aaid rsnti
Hot then Uie Jni? cknnot legally Infor, from Uia
dsnae In ths wid docd coatdiiiiiig • eoranKit
IB tht part of uid Scholfleld to keni the laid
haua«* inaured, anything affeetiag aald contract
with usnrr or Ult^lity; which InitriMtion th«
wuit refiued to give.
Th« defendant then prayed the Mnrt to In-
rtnet the Jury that if thej ihall believe, from
4S]*3 the evidence aforesaid, that the 'fair and
tnatonary price of annnittea and rent chargee,
at Um date of uid deed from Scholfleld, waa, in
tke market of Alexandria, ten yean' pnrcliaae,
and ao continued for a period of yeara, then,
from the circumatance of the rent being ten r~~
HBtum on the amount advanced, the Jury ea
not legally Infer anything uaurioua or Illegal
the contract.
The court refused both the aald Instniotloiu,
and defendant excepted.
Tke counsel for the plaintiff In error eon'
tended:
1. That the teatimony of Jonathan Behol'
fleld was incompetent and irtadmissible, and
dwold have been excluded.
2. That the court erred in giving the In-
atmction which waa given at the instance of
^ntiff.
3. That It erred in refusing to gire the in-
atmctiona prayed by the defendant.
Hr. Coxe, for the plaintilf in error, argued
that Sehollietd wbb not a competent witness.
Ha WBB the original grantor to Moore of the
rent for which the distress was made, and he
afterwards »old the property, on which it
ttcured, to Lloyd. Up to a certain time, he
the real party to the suit; at its eomme
nent, and for three yeara afterwards. The
oovenants in the deed bind him to pay the rent,
which, by his testimony, he now leeki to ex-
ttnguiafa, and to discharge himself fiom the
obligation of those covenants.
The notice of Schoineld to Lloyd, not to pay
the rent, and his engagement, in that notice, to
indemnify him for resisting the claim of Moore,
and to protect him from costB, Is in full force.
Its oUigation has not been impaired or releaaed
\ty the subsequent transactions between him
and Uoyd by which Lloyd became the owner
of the property.
The part taken by Scholfleld In this ease
makes him a privy to the action. The judg-
ment in the case would be evidence for him, if
Uoore should resort to the personal covenants
in the deed; which are continuing covenants.
Scholfleld is a guaranty of the rent to Moore,
•ad If Lloyd doea not pay It, be must do so.
4 Binney, 352; 1 Btark. Bvid. see. 68, note 1;
9 Espin. Caa. SS, 69.
Scholfleld ia Introduced to destroy his own
4S1*I ctmtraet. This 'contract is aasi^able;
and thie objection comes within the principles
of the rule which excludes the party to a ne-
gotiable instrument, being a witness to destroy
Ita vitality; sa much so as a bill of lading, or a
■toek contract. 3 Dallas, SOS.
The proceedings for the discharge of Bchol-
lekl under the insolvent laws of Virginia,
paaaed to the assignees the possibility of interest
m the property conveyed to Lloyd; this interest
would be important, if the rent payable to
Moore was discharged, or eeased to be a lien on
^ real eatate. The evidence of Scholfleld was
intended to deatooy the lien of tke rant, Md
gent Kemainders, MB.
The second bill of exertions embodies threa
propositions;
1. That the contract was not on its face
2. That besides the written evidence in the
deed from Scholfleld to Moore, there must be
other evidence to show uiuryj ai a separate
usurious contract, on which the deed was given,
3. That the parol evidence was entirely In-
sufficient to show usury.
This court has decided (4 Peten, S24) that
the contract in the deed is not on Its face
usurious. This haa also been decided at thia
term in the case of The Bank of the United
Statea t. Waggener. If a contract was made
other than that in the deed. It should be proved)
and there ia no evidence of it. The plea sets out
a tepsj«t« and substantial agreement for usury,
other than the deed, and this must be made out
by evidence. There ia no such evidence.
If there be no stipiitatlon to return the money
to the purehaser, and the deed is not a cover
for taking usurious intereat, it Is not a loan. It is
essential to a loan that the thing borrowed is to
be returned. The communication of the pur-
pose most be mutual. A meditated loan may
he bona flde converted into the purchase of an
annuity. CSted, 2 Lev. 7; 1 Anderson, new
ed. 47; Comyn on Usury, 43, 47, 48; Fuller's
case, 4 Leon. 208; Noy. 161; 8 W. Blaek.
65»i 3 Wils. 300; 1 Atb. SO; Ord. on Usury,
23.
The instructions required of the court, by
the plaintiff in error, should have been given as
The third instruction asked of the court was
that the whole 'matters in evidence, t*4X3
under the ioatnietlons already given, were
proper for the jury to determine whether the
contract was, in substance and effect, a loan at
usurious interest, or a contract for the bargain
and sale of a rent charge.
The objection to this is that it left to the jury
the legal effect of the deed. It was not left to
the jury that It was incumbent on the party to
■how by any testimony, independent of the
agreement, that there was a contract for a loan.
Thus the law, as well as the fact, was submit-
ted to the jury. The attention of the jury was
not directed to the true issue in the cause. The
intention to take usury waa essential. This the
court have said in the ease of The Bank of the
United SUtes ▼. Waggener.
In the fourth exception, it appears that the
court refused to state the law to the jury.
Hr. Swann, for the defendant in error.
Scholfleld is a competent witness. The record
this case could not be used for him; bis inter-
est Is that Lloyd shall be held liable for the
rent. 3 Stark. Evid. 1003] 1 Munf. 348; S
Hen. ft Mun. 200.
By bis assignment, under the Insolvent taws,
alt his interest In the property, supposing It
discharged from the rent by the usurious char-
acter of the Incumbrance, passed to his credit-
ors: nor is it admitted that, under the circum-
stances, he could derive any benefit from any
issue of this case. He stands releaaed by all the
Eartles except the original lender; all otbera
ave diachai^ed Um, •• appear* hj the record.
Surana Oovnt or tbk Umx^ Butem.
for hia agreement to Indemnif]' him for the costs
of suit, etc., to operate upon.
Suppose the decision in this caM »g&inBt
Lloj'u, and he were to sue Scholfleld on that
•greement, could ha recover I Ever; contract,
bf parol, was merged in the contract of 1828,
which was under eeal. If tenant aurrendera to
landlord, the covenants of the tenant are
merged in the deed.
The deed from Scholfield to Moore cannot be
viewed as a negotiable paper, and thus prevent
Scholfield's evidence, as his name is to it. 3
Term Rep. 7; 7 Term. Rep. GO, 180. The
objection goes rather to his credit than to his
competency.
434*1 'The abject of both the parties to
this auit la to have the opinion of the court on
the main question of usurj, or not usurj.
It is contended that the contract between the
parties contains evidence from which the jury
mipht inter usury. A full examination of the
evidence will satisfy the court that the object of
Scholfield, who waa a necessitouB man, was to
borrow money, and that of Moore, who was a
money lender, waa to obtain a larger rate of
intereat than waa legal. The resort to this rent
charge was a cover to effect these purposes.
Wliile it is admitted that an annuity may, if
the transaction is in good faith, and for no other
purpose but such ^rchase, be bought at an;
fair pricei it is denied that a negotiation origi-
nating in the desire of the owner of real estate
to procure a loan of money, when, by the means
I rent charge secured on his property, this
circumstances of this case are to be considered
and taken together; and if they are, in fact,
but a cover to evade the law, the contract is
void. While cases may be found, and some
have been cited, in which an annuity produced
ft greater interest than waa le^l, and which,
although there was no opportunity of redemp-
tion, have not been considered usurious) yet
the courts of England have, since those cbbbs,
examined the matters of the contract with more
scrutiny, and have on the contract, aa set forth
in the deed creating the annuity, adjudged it
usurious; and considered it as a shift to escape
from the statute. It is only the good faith of
the transaction which wilt protect it.
Within the principles that no machinery,
however well devised; no form of conveyance,
however well projected; no concealment, bow-
ever ingenious; will permit the law prohibiting
usury to be eluded, comes that now before the
court. Inspection of the deed from Scholfield
to Moore, even without the testimony of Schol-
field and of the other witnesses, results in the
Irresistible conclusion that the whole arrange-
ment was one to secure a higher rate of com-
pensation for forbearance than waa legal.
There waa no hazard, no contingency. The
property was ample; the subsequent sale made
bsequent
by Scholtleld to Lloyd proves this; the obliga
tion to insure against Are, saved the grantee
in the deed from tlie possibility of loss by fire.
43S*] *In reference to the obli^tion to re.
pay the money advanced, althou^ it waa not
express, the high rate of interest mada it an im-
plied obligation. Mid a outain reaulL
184
If a man should advanoe 1,000 doUara for t^
years, receiving a rent which would repay the
amount with ten per cent, interest, the contract
would be usurious. This would be a shiit to se-
cure the repayment of the sum advanced, with-
out any eipress etipulatioo for the repayment.
Courts look at the substance of the contract,
and decide on its character after auch an exam-
ination. A personal obligation to redeem does
not make any difference aa to the validity of ttw
contract, if the redemption would be indispens-
able, aa in the case before the court, where ths
property was worth more than the sum ad-
vanced. CSted,Cowp. 740, 776; Doug. 740; Con-
way's Executors v. Alexander, 7 (>anch. 236;
2 Good. Rep. 47B.
The dictum of Lord Holt, in the case cited
by the counsel for the plaintiff in error from 2
Lev. Rep. is not law; although the decision of
ths case may be right. In that case, there waa
a real purchase and sale. Had there licen a
power of redemption, it would have been a
cause of suspicion.
In 2 Atkyns, 278, It was held that a cove-
nant to repay ths money was not indispensable t
a power to redeem is suspicious, under circum-
stances. In 3 Bos. ft Pult. 150, the same point
was decided. CiUd also, 4 Campb. 1; 3 Bam.
& Aid. 604; S Harris & Johns. lOB, 114; 4
Peters, 224.
Scholfield not only bound the land for the rent,
but he also covenanted personally to pay the
amount, and to keep the property insured and
in good repair. This was more than the usual
contract for an annuity. The witnesses in this
case also prove that there was a bargain, vie,
about the right of redemption; and the lender,
Moore, insisted on its being postponed longer
than Scholfield desired.
Mr. Key, also for the defendant In error, in-
sisted on the competenry of Scholfield as a wit-
ness. He cited I Whe«t. Rep. 6; I Phil. Er.
33, 40, 24S, 2GZ; 2 Wash. Virginia Rep. 32.
The promise to indemnify Ltnyd mad<? him
interested in the event of the suit, but the cir-
cumstances were afterwards altered. His in-
terest became afterwards balani^ed. A recovery
'against Lloyd would excuse hrm, and [*J3S
if against Moore, he might be liable. The rul«
in Walton v. Shelly has been overruled in Jor-
dan V. Lashbrook. Cited, IS Johns. 270; 8
Cowen, 704; IS Johns. 1B7; 3 Har. ft Johns.
172; 3 Wash. C. C. Rep. S; Comyn, 206; U
Mass. 408; 6 Peters, 36, 36.
On the question of usury In the tranaaction,
he contended that, upon the face of the deed,
there was enough to show its uHiirioua clinrac-
ter. The return of the money advanced waa
?lainly contemplated at the end of five yeara.
he prayers on both sides presented no more
than the purpose of submitting to the jury
whether the transaction was a fair and bona
flde purchase of a rent charge, or whether it
was a cloak for usnry. The former decision of
this court. In the case, authorised the referenca
of the deed of Scholfield to Moore to the jury,
as an item for their consideration in examining
the question of uauiy. Cited, 7 Craneh, 239;
2 Peters, 160.
As to the fourth praver of the defendant !■
the Circuit Court, it only singles out particular
facts in evidence, and asks instructions to tba
jury upon them, when the court had already
Poi«ra 8.
Soon, B«iutT or Mocam, t. LLonk
I tiutructlona on th« wfaolc Bvidsne*. No
Mr. JOBM, in rtplj.
Sdwlflald i* u ineonip«t«nt wItneM.
Be waa grantor of the rent cbtrge, and b«
bwaiBB inBolrent fn 18Z2, was in confinement
tft tha rait of creditorB, and discfaarged under
tka {luoWent lana of the StAte of Virginia.
Ha loM tbe propertj, liable to tbe rent
charge, to tbe defendant in error, and the valii*
•( the BBme must have been deducted from tbe
rent charge is got rid of.
The amount thus payable, in the arent of
Rteceaa in thia controveny, !■ held in truat for
certain preferred cieditors of Bcholfleld, and
cbIj a part Of those creditor*.
It was part of the agreement made when
Uoyd first resisted the claim of the rent, that
SeboIBetd would indemnify him for all the coets
and eonsequeneea of thia resistance; and this
4S7*] obligation *is not affected Id any way
k7 any of the subsequent transactions between
them, nor has he been released by Uoyd from
tUa liability.
This discharge nnder the Insolvent law of
Vlrpnia, was only extended to tbe plaintiff in
tbe execution under which he waa in conflne-
tnent, and not to his liability to other ercditore,
nnleita tbe property asHiened by him at the time
of his discharge will fully pay all his creditors.
And this discharge did not in any manner af-
teet bit obligation of indemnity.
A mere possibility passes to creditora under
tbe bankrupt act; and if this rent charge la ex-
tinguished, the benefit of the extingiiiihment
wit? go to tbe creditors, and will go ao far to
satisfy the debts of Bcholfleld.
e general grounda, Scholfleld Is >ot
togaf^a
Admitting he baa no peeimiary intereat !■ the
reanlt of this snit, he la inadmissible, by reason
that he is a party to tbe alleged corrupt agree-
ment with Moore, and is called upon to de-
■troy his own deed.
Thia c«se cornea within the rule In Walton
T. Shelly, which has been adapted and confirmed
by this court. The principle in that case ex-
tenda to all instruments. It is an eetoppel, by
general principles, that a man shall not be per-
mitted to destroy bis own deed. But waiving
tUa, Scholfleld is subatantially a party. This is
not dependent on the result of the suit. It may
not be a legal privity; whether equitable or
\tm1, it is enough. Cited, 2 Lord Itaymond,
IX; Hardres, 472; 8 Starlc. Ev. 193; Sch. ft
I«f. 410; 9 Ves. Jun. 316; Doug. BIT; Stark.
■t. 194, end the note of tbe eases cited. Aa to
tha verdict and judgment being used by Schol-
Itdd In a suit against him for the rent charge,
cited, Pealce's Ev. 74, and eases referred to.
I Wilson, 257; 4 Camp. 201; S Esp. 181; 11
East, ST8; 1 Taunton, 104. If parties are euh-
ctantially the sams, the objection Ilea to their
pTJTity, and is not confined to blood. 2 Stark.
Et. 104; Phil. Ev. 74, 75; I Bing. Rep. 45.
On the question of usury, Mr. Jones contend.
ad that there was no evidence, which, if admit-
ted, eould have induced a Jury to beltpve 'here
was any naur; bi tka tnuuMtioa. There ia ma
objection on tbe ground of deaHng In annnltlea
and rent 'charges, whittever may be [*4S8
the rates at which they may be purchased or
sold. All the eases on this subject are collected
in Comyn on Usury. Annuities are fair objects
of purcnase and sale. I Com. Dig. ^1.
It is admitted that if there was any security
given to return the money paid, it is enough
to vitiate the contract; but this is not so. It
was no more the case than in any other pur-
chase of an annuity or rent charge, when the
annual sum paid exceeds the legal interest of
the purchase money. The right to repay the
money reaerved in the deed from Scholfleld to
Moore, was not an obligation to repay it, and
thus tbe ease is unaffected by this feature in It.
The Circuit Court, by their instructions, re-
ferred the construction of the deed to the jury.
As there waa no evidence out of the deed from
which a contract for usury could be inferred,
the court ought to have told tbe jury that there
was no evidence of any uanry.
Mr. Chief Justice Hanball delivered tbe
opinion of the court:
This is an action of replevin Instituted In the
Circuit Court for the County of Alexandria,
and removed for trial to the County of Wash-
ington.
The plaintiff in error, the original defendant,
avowed as bailiff of William S. Hoore, that
the goods replevied were distrained for rent in
arrear. The plaintiff in replevin, after craving
oyer of the deed, by which the rent alleged to
be in arrear waa reserved, pleaded the statuta
of nsnry in bar of the claim. The plea alleged
that the contract between the parties was a cor-
rupt and usurious tending of the sum of (5,0(l(^
Dpon an interest of ten per centum per annum.
Other issues were joined in the cause, but
they are not noticed because tbey are of no
Imjoortann.
On the trial, tbe plaintiff in replevin offered
Jonathan Scholfleld as a witnesa. who was ob-
jected to by the avowant, but admitted by the
court, and to tbia admlsaion tbe avowant ex>
In support of his objection to the eompetenay
of the witneaa, the counsel for the avowant ex-
hibited a deed, executed on tbe lltfa of June,
1814, by Scholfleld and wife to William B.
Moore, *by whose authority the distress [*4Sf
was made; by which the said Scholfleld and
wife, in consideration of IS.OOO psid by the
said Moore to the said Scholfleld, granted to tbe
said William S. Moore, his heirs and aesigns
forever, one certain annuity or rent of 8500, to
be issuing out of and charged upon a lot of
ground, and four bricic tenements and appurte-
nances thereon erected, lying in the town of
Alexandria, and particularly described in the
deed.
Also a deed between the said Scholfleld and
wife, of the first Dart; John Lloyd, the plaintiff
in replevin, of the second part; and Andrew
Scholfleld, of the third part; conveying to tbe
said Johii Lloyd the lot out of which the an-
nuity or rent charge of $500 had been granted
to William 8. Moore. This deed contains sev-
eral covenants, and, among others, a stiputa-
tion that the lot ahall remain aubjeot to tbe aa-
nnity to WUUam 8. Uoon.
Ooun or tSK Unm States.
Also the following letter from Selurifleld to
Uoyit
"Alelandrin, June Sth. ISU.
"Sir: Ab you hold uniler me tlie property
on whirh I granted ■ rent charge of 600 dalldre
* yttr to William S. Moore, I now give you
notice, the eontrftct by whicb that rent charge
wkt created I consider to be uauriouB, and that
I shall take measurei to aet aaide the aame;
Mid I hereby require you to withhold from Wil-
liam S. Moore the payment of any farther
money, on account of thit rent charge; and in
caae diitrena ahould be made upon you for the
rent, I promise to aave you harmleaa if you
will reaist the piyment by writ of replevy. I
wiab you to understand that if you make any
farther paymenta after receiving thit notice,
that you make them at your own riik.
1 am with great respect, yours,
"Jonathan Scholfleld.
"To Mr. John Lloyd."
This letter was delivered to Mr. Uoyd on the
day of ita date.
Also a deed of the 18th of November, 1826,
from laid Scholfleld, making a conditional aa-
■ignment of one-fifth of tald annuity of (500 to
Thomaa K. Beale, in which he recitei and ac-
440*] knowledges 'his responsibility to Lloyd,
on account of the distress for rent made by
William 8. Moore.
Also, an exemplification of the record of the
froceedings in the County Court of Fairfax, in
he Commonwealth of Virginia, upon the in-
aolrency and discharge of the said Scholfleld,
aa an insolvent debtor, in May, 1622.
Whereupon the plaintiff in replevin, to iup-
Krt the competency of the said Scholfleld, laid
tore the court the following documents:
A release from said Scholfleld to the plaintiff
In replevin, dated the 13th day of June, 1831 ;
whereby aald Scholfleld, in consideration of
$6,000 released to him by the aaid Uoyd, out
of a debt due by him to Lloyd, grants to aaid
Lloyd ail the right, title and interest, which he
haa, or may have, from the decision of the
ault depending for the annuity or rent charge
granted to Moore, or which he has, or
may have thereafter, to the brick bultd-
inga upon which the said annuity or rent charge
it secured. He also releaaee the tald Uoyd
from all covenants or obligations, ezpreaaad or
Implied, arleing f't of the deed of assignment
from him to said Lloyd; and also from all
eiaims, etc., which now exist, or may hereafter
arise out of the said deed, etc Also a release
from the same to the same, dated 26th April,
1828, In which Scholfleld releases to Uoyd all
his light, etc., to the said suit, et«., and to all
Mums of money which may accrue, and from all
actions, etc., on account of the aaid suit, etc.
Also, a release of the same date from Thomaa
K. Beale and James M, M'Crea, releating tbe
■aid Jonathan Schometd from SOSO, part of a
debt of $2,000, due'from him to them.
Alto, a release from Joseph Smith, of same
date, releasing $1,IS0, part of a debt of $3,000
due to him from said Scholfleld.
Also, a release of William Veltch and Benoni
Wheat, ditcharging the said Scholfleld from
$250, part of a debt of $800, due to them from
him.
Alto, an engagement of John Lloyd, dated
the ZStli of April, 1828, bjndlng Umaalf U tb«
!••
teveral peraona who executed the foregcrfng r*.
leases for (he several sums released by Uiem, la
the 'event of bis tucccpding in tha suit [*441
then depending Iwtween himself and Qiarles
Scott, bailiff of William S. Moore.
Also, a release from John Lloyd, stating that
whereas Jonathan ScholReld stood indebted to
him in a large sum of money, he had agreed to
release, and did thereby release, the said Scb<rf>
fleld from $0,000, part of the aaid debt
In discusaing the competency of the witneta,
some diversity of opinion prevailed on the quM'
tlon whether he eoutd be received to invalidaba
a paper executed by himself; but, without de-
ciding this question, a majority of the court it
of opinion that he is interested fn the event of
the suit. His letter of the Btb of June, to John
Uoyd, the tenant in possession, requiring him
to withhold from William S. Moore the pay-
ment cS any farther sum of money on acconnt
of thia rent charge, contains this declaration:
"and in case distress should be made upon
you for the rent, I promise to save you harm-
lesB, if you will resist tbe payment by writ of
replevy. I wish you to understand that If
^ou make any further payments after reoelv-
mg this notice, that you make them at TOor
own risk."
This Is an explicit and absolute undertaking,
to assume all the liabilities which Mr. Lloyd
might incur by suing out a writ of replevin, if
an attempt should be made to lev^ the rent by
distress. Mr. Scholfleld, then, is reaponaible
to Mr. Uoyd for the costs of thia suit. Thit la
a plain and aubateiitial interest in the event of
the suit, from which Mr. Uoyd alone can re-
lease him. This liability was incurred before
the sale and release from Scholfleld to Uoyd of
the 13th of June, 1831; and Mr. Scholfleld'a
retponeibility depended on the decision of the
tuit in which he was called a« a witneta, unleta
hit release to, and contract with Uoyd of the
13th of June, 1831, could discharge him from
it. That contract transferred' to Uoyd all tha
interest of Scholfleld, in the ground charged
with the rent to Moore, but did not transfer
with It his obligation to save Lloyd harmlesa
for resisting the claim of Moore to the rent In
arrear. It produced a state of things which
removed all motives, on the part of Scholfleld,
for incurring freth liabilities, but did not dia-
eharge him from lin liilitiea already incurred.
It placed In hia hands the entire management
of the suit, but did not enable him to undo
what waa done, or to relieve himself from tha
claim of Moore to costs, should the suit termi-
nate in his favor. 'The responsibility [*44B
of Uoyd to Moore continued, and the corrcla-
tive responsibility of Schol field to Uoyd still
continued also, unleaa Uoyd had released hiea
from it. Now, there ia no expression in tho
contracts between the parties which purports
to be such a release. It has bcpn inferred as
the result of tbe change in the situation of tba
parties; but we do not think the inference jut-
tifled by the fact. The oblintion is unequivo-
cal; la expressed in plain and positive terms; i*
dependent on the event of a suit, and inde-
pendent of tbe ownership of the property. Tha
parties enter into a contract by which the prop-
erty U transferred, without making any alia-
aion to thit obligation. It remaina, we think,
is (uU force; and, eonsaquently, Jonatfcaa
Scon, BAtunr or Uooi^ v. turn.
Ut
BcftolSald wM Ml latenated And ineompeUnt
In tlM progreu of tha cuminatton, the
pUintUTs oounMl put to the nitnau the follow-
ing questioa: "Did yon, in the course of jour
diacnadon* u to the time you were to krep the
iMMMj, atato your object io the ftpplieation to
ba to hare the use of the tSflOO tor w. limited
ttaur
To wUeh the defeudajtt'a eounacl objected,
m (Ming a leading interroRatory. The plain-
tUTa eonnael then varied the question »■ fol-
lowa:
'THd you, or did you not, in the oouree of
joar diacusaioDB," etc To which the defend-
aat'B counael made the same objection; but the
court overruled the objection, and permitted
tko ipwation to be put, and the defendant ez-
ecpta to that deeision.
Althou^ the plaintiff'B oounsel objected to
tUa question, and eaid that he excepted to the
opinion of the court, no exception la actually
Ryed by the party or signed by the Judge.
• court, therefore, cannot consider toe ex-
c«^aii aa actually taken, and mu«t auppoae It
batwaeB I
Seholfield and Moore, under which
1 of 96fi00 waa advanced by the latter
to the fonntt', Mrigiuated in an apptfcation for
m loan of money; not for the purcbaae and sale
ol a rent charge or annuity. SoholSeld ap-
plied to Uoore to raise or borrow 9fi,000, eecur-
tng bim on an annuity or ground rent for one
year: Moore propoaed to let bim have the
Kon^ for ten yeare on the aame security. Aft-
er mod diseuaalon the parties agreed to iplit
4«l*] tha 'difference, and that Schoiaeld
ahoald keep the money five yeara. Scholfleld
Mkya bis first proposition was to allow ten per
eaat., and to aecure it by an annuity or ground
i«Bt OB the housea mentioned in the deed. No
other interest but ten per cent, was mentioned;
SchoUleld had no intention of selling the prop-
vty. It waa also in evidence that Moore waa
a noiMj lender, and waa in the habit of ad-
vandng money, aecured on ground rente or an-
mdUea, and that Beholfield waa a money bor-
rawer, and that tha property waa an ample
aaenrity for the money lent, and tor the an-
raity.
On tiM part of the avowant, it was proved
tknt the usual value of thoae ground rents or
annnltiea ehar^ on lota in Alexandria waa
audi aa to afford an Interest of ten per cent.
raannm on the principal sum advanced; and
waa admitted by Scholfleld that he gave
Moore no promise, atipulation or aecurity for
tbe return of the $6,000, other than ia eoutainud
tR tlM deed ItMlf.
Mmaj witncaaea ware examined, and a great
4mJ Of toatimoay, bearing mora or lata dirootly
am the eontract, was adduced.
Tba deed from Scholfleld and wife to W. 8.
Heon^ bj whleh In consideration of 9S,D00.
tka BiDiaity or rent chatga of (600 per annum
««■ enatad, eontaina a covenant "that tbe
Mid J. Scholfleld, hia heira and aaslgns, will
wd and tnily pay to tbe aald W. S. Uoore.
Ui baba and aaaigaa, tha aaid annuity or rent
ifenna of VfiOO, by equal half-yearly payments,
m Oi lOtt div W JuM ud OB tha lOth daj of
December, En each year, forever hereafter, aa
the same shall became due; and that ff the
same b« not punctually paid, then it shall be
lawful for the said W. S. Moore, his heirs and
assigns, from time to time, on every such de-
fault, to enter on tlie premises charged, and ta
levy, by distress and sale of the goods and chat-
tell there found, the rent in arrear and the costs
of distress and sale; and if the same shall re-
main in arrear and unpaid for the space of
thirty days after any day of payment, as afore-
said, and no distress sufTK-iont to satisfy the
same can be found on the premiums charged,
then it shall be lawful for the said VV. S. Moore,
his heirs end assigns, to enter on the premises
charged, and from tiirnce to remove and expel
the aaid J. Scholfleld. his lieirs and assigns, and
to hold and enjoy 'the same as his, and [*444
their, absolute estate forever thereafter." "And
that the said J. Scholfleld. his heirs and assigns,
will forever hereafter keep the buildings and
improvements which now are, or hereafter may
be erected on the premises charf;ed, fully io-
surad against Are, in some incorporated insur-
ance office, and will aasign the policies of
inaurance to such trustees aa the said W. S,
Moore, his heirs or assigns, may appoint; to
the intent that if any damage or destruction
from Rre shall happen, the money received on
such policies may be applied to rebuilding or
repairing the buildings destroyed or dama^."
"And lastly, that he and his heirs will for-
ever warrant and defend the annuity or rent
charge hereby granted to the said W. S. Moore,
his heira and assigns, against any defalcation
or deduction, for or on account of any act of
him, his heirs or assigns."
The deed contained a farther covenant that
if, at any time after Ave years, the aaid J.
Scholfleld should pay to the said W. S. Moore
tbe cum of <S.OOO, with all arrears of rent, etc.,
the said W. S. Moore will execute any deed
releasing or extinguishing tbe said reot or an-
When the testimony was closed, the eoundel
for the defendant and avowant prayed the
court to instruct the jury "that the contract
between said Jonathan Scholtirld and William
S. Moore, such as it is evidenced by the deed
from said Scholfleld and wife to said Mooro,
set out in tlie proceedings, and given in evi-
dence by the plaintiff as aforesaid, waa lawful
and free of the taint of usury; and in order to
impeach It of usury, and support the issue* of
fact joini^ In this cause on the part of the
plaintiff, it is necessary for the plaintiff to
prove that besides the contract imported by
the terms of said deed, there was an actual con-
tract between said Scholfleld and Moore for
the loan of $S,000 at usurious interest, to wit,
at the rate of ten per cent, per annum, to be
diaguiaed under the form and name of an an-
nuitjr or rent charge; and that such ^um waa
actually lent by said Moore to aaid ScholEleM,
and said deed given in pursuance and execution
of such eontract and loan, aecuring the said
usurious interest under the form and name of
such annuity or rent charge; that the facta
given in evidence to the jury as aforesaid
to Bupport the issues above joined on the part
*of the plaintiff did not import such a [*445
lending of money by Moore to Scholfleld. at
usurioua intereit, aa waa suffieient to aupport
BoFiBUK Oorar or thk Umitid Statu.
tk« Imum joined on tbe part of the plaintifT in
replevin, upon the second Bad fourth pleaa by
tM plaintiff in replevin, pleaded to the cogni-
cajice in this cbbb." Which instruction the
court refused to give; to whicli refusal the de-
fendant and avowant, by his counsel, prayed
an exception, nbich was Bigned.
The aubatantial merita of the case are in-
TOlTcd in the subsequent instructions which the
court actually gave, and it will be apparent
when we proceed to the eonafderatioD of thoae
instmctionB, that if they ought to have been
given, thia ought to have been refuaed. There
are, however, objections to the manner in which
these instructions are framed, which ought not
to have been overlooked by the court. The
•tatute against usury not only forbids the direct
taking of more than aiz per centum per annum
for the loan or forbearance of any sum of
■noQey, but it forbids any shift or device by
which this prohibition may be evaded and a
greater interest be in fact aecured. If a larger
•urn than alx per cent, be not expressly reserved,
the instrument will not of itself expose the
usury; but the real corruptness of the contract
must be shown by extrinsic circumstances,
which prove its character. . Thoae eircum-
■tancea must of course be viewed in connection
with the contract. The counsel for the avow-
ant aski the court to separate the instrument
fran its circumstances, and to inform the jury
that the Instrument Itaelf was lawful, and free
from the taint of usury; and that to fix this
aint upon it, Uie plaintitT in replevin must prove,
besides ths contract in the deed, an actu^ con-
tract, stipulating interest at the rate of ten per
centum per annum for the loan of *5,000. Had
this instruction been given, drciun stances which
demoDstrated the Intention of tbe parties, and
explained completely the contract actually
made, If such exiet«l, must have been disre-
garded by the jury- The court ia next request-
ed to say to the jury that the facta given in
evidence did not import such a lending as
would support the issue.
The court is thus asked to usurp tbe province
of the jury, and to decide on the aufEctency of
the testimony, in violation of the well-estab-
lished principle that the law la referred to the
44a*] court, *the fact to the Jury. The
court did not err in refusing to give thia In-
■truetion.
"The plaintiff then prayed tbe court farther
to Instruct the jury that the matters shown in
evidence to the jury as aforesaid are proper for
the consideration of the jury to determine, from
the whole evidence, under the instruction of
the court, as already given to them in this cause,
whether the said contract so made between the
■aid Hoore and Scholfield waa, in sulntanee
and effect, a loan at usurious interest, or a bona
fide contract for the barg^n and sale of a rent
eharge; and if the jury, from the said whole
evldenoe under the instructiona as aforesaid,
iball believe it to have been such a loan, they
dunild find for the plaintiff; If otherwise, for
the defendant.
The court gave this Inatruetion, and the de-
fmdants excepted to tL Its eorreetnesa !■ now
to be examined.
The atatnt* deelarea that "no person shall,
apon any eontnet, take, directly or Indirectly,
for loan Vt waj monajr' eta, "above tba ndoa
of six dollars, for the forbearance of one hun-
dred dollars for a year," etc.
It has been settled that to constitute the of-
fense there must be a loan, upon which more
than six per cent, interest is to be received;
and it is also settled that where the contract is
in truth for the borrowing and lending of
money, no form which can be given to it will
free it from the taint of usury, if more tluui
legal interest be secured.
The ingenuity of lenders has devised many
contrivances, by which, under forms sanctioned
by law, the statute may be evaded. Among the
earliest and most common of these is the pur-
chase of annuities, secured upon real estate or
otherwise. Tbe statute does not reach these,
not only because the principle may be put Id
hazard, but because it waa not the intention of
the Legislature to interfere with individuals in
their ordinary transactions of buying and sell-
ing, or other arrangements made with a view
to convenience or profit. The purchase of an
annuity, therefore, or rent charged, if a bona
fide sale, has never been considered as usurious,
though more than six per cent, profit be se-
cured. Yet it is apparent that if giving tliia
form to the contract will afford a cover which
conceals it from judicial investigation, the stat-
ute would become a dead letter. Courts, there-
fore, perceived the necessity of disregarding the
'form, and examining into the real na- [*441
ture of the transaction. If that be in fact a
loan, no shift or device will protect it.
Though this principle may be extracted from
all the cases, yet as each depends on its own
circumstaaces, and those drcumataneea are al-
most infinitely varied, it ought not to surpriae
us if there should be some seeming eonfiict in
the application of the rule by different judgea.
Different minds allow a different dc^ee of
weight to tbe same circumstances.
The King v. Drury, 2 Lev. 7, is a very strong
case in favor of the avowant, and haa been
much pressed on the court by his counsel.
Brown agreed to assign to Drue a lease of a
house for forty years for the sum of £300.
Drue not having the money, Drury, by agree-
ment with Drue, paid the £300, took the as-
signment to himself, and then let tbe house to
Drue for thirty-nine and three quarter years, at
a rent, of wbich £30 was payable to himself.
Drury covenanted that if at the end of four
years Drue paid the £300, he would convey the
residue of tl» term to Drue. Per Hale, C. J.
"This is not usury within tbe statute, for Drua
was not bound to pay the £300 to Drury." "It
Is no more in effect than a bargain for an an-
nuity of £30 yearly, fo^ thirty-nine and three
quarter years, for £300 to be secured in this
manner, determinable sooner if the grants
El eases; but the grantee hsth no remedy tvt
is £300." "And so the acceptance of the £7
10 shillings is not usury. But if Drury had tak>
en security for the repayment of the £300, or
it had be^ by any collateral agreement to b*
repaid, and all this method of bargaining a oon-
trivance to avoid the statute, this had been
usury."
This case has been cited to prove that, with-
out an express stipulation for the repayment of
the money advanced, a contract cannot be
uamrious, whatever profit may be derived from
It U must be admitted that atthongti Lord
SooTT, Buurr or Uooi^ t. Luni
HmH docs not *k; so tn temi, the cam, a« re-
ported, countenanceB this coiiat ruction. But
the ■eeuraic;r of the report must be ijueationed.
•nd it ia believed that such a. principle would
not now b« acknowledged in the eaurte of Eng-
land.
Chief Jnatice Hale conaldera the tranaaction
aimpl; aa ■ bargaiD for an annultr, not as a
448*] loan of nionej. Whether •the circum-
■tancea of the case warranted this conclusion or
■ot, it is the concluaion he drew from tbeia.
Tbe negotiation between Drue and Drurj, bj
which the latter adranced the monej, became
tha aaaignea ot the term, and then leased it to
the former, accompanied with a power of re-
demption, are totally overlooked by tbe Judges.
It bad no influence on the ca*e. It waa not con-
■idered aa affording any evidence, that the
tranaaction was In reality a loan of money. The
principle of law announced by the judge is
wmply that a bargain for an annuity ii not
naury. He adds that if the repayment of the
£300 had been secured, and all this method of
bargaining a contrivance to avoid the atatute,
thin had been iiBury."
lie connects the bargaining, being a contriv-
anea to avoid tlie statute, with a security for
the repayment of the sum advanced, aa if he
thought this security indispensable to the effect
of the bargaining, without which the contract
eould not be usurious.
It is obvious that if thla Inference of law
fmtn the fact be admitted without qualification,
tt will entirely defeat the atatute. If an ex-
presa stipulation for the repayment of the sum
advanced be indispensable to the existence of
usury, be must be a bungler indeed, who frames
bin contract on such terms as to expose him-
self to the penalties of the law. If a man
purchaaea for $500 an annuity for S200 per
annum redeemable at the will ot the grantor in
ten years, without any ezpreai atipulation for
tbe repayment of the 9500, thia, according to
Dmry'a case, as reported, would be no more
than a bargain for an annuity; and yet the
grantor would receive excessive usury, and the
grantee would be compelled, by the very terms
of tbe contract, to repay tbe fSOO aa certainlj
as if he had entered into a apeciflo covenant
for repayment, on which an action could be
maintained. Lord Hale cannot have intended
thia. He has not said so in terms; and we
must believe tfaat he did not mean to require
more than that the contract should not be such
as, in effect, to secure the principal aum ad-
vanced with usuriova interest. It would be a
very nnusual rtiputation in the grant of an an-
nuity, that thr money should be returned other-
wise than by the annuity Itself.
So in Finch's case, reported in Comyn on
UauT7, 43, Canfleld secured to Finch more than
44t*] the legal interest on the money 'ad-
vanced by a rent Issuing out of land, and the
court determined that it was not usury, though
CanBeld had applied for a loan of money which
Finch refused, offering at the same time to let
bim have the sura by way of annuity or rent.
This was held not to be usurious. "This,"
aaid the court, "is not a contract commenced
upon a corrupt cause; but an agreement for a
rent which it is lawful for everyone to make."
But it was said, that if twelve pounds in the
■mndrad had baen offered to be paid, (the la-
gal interaat waa then tan per oent.) and tkl
<it her had said that he would accept it, but that
this would be in danger of the law, and tkan-
fore he did not like to contract upon these
terms; but that If the other party would aaaura
him an annual rent for his money then ha
would lend it. and upon thia an agreement for
tbe rent had been made; thia would have been
within the statute." The aaine principle ia da-
cided in Cro. Jamea, 2GZ. These cases torn oa
the evidence which ahall be sufhcient to prove
a loan to ha the foundation of tbe contract,
but do not withdraw the case from the statutv,
if a loan be ita foundation. They decide that
a mere application for a loan does not convett
a subsequent annuity, which yields a prcrfit
beyond legal Intereat, into a uaurious contract!
but that an actual contract for the loan, if con-
verted into an annuity In order to avoid the
law, Is within the statute.
In these caaea the court decides upon t\»
fact, and determines that a variation in It, tba
importance of which ia not distinctly perceived
would bring the contract within the law. ix
ell of them, we think it probable that a court
of the present day would leave it to tbe jury
to sav whether the contract was a fair purchaM
or a loan, and would direct the jury to And fur
the plaintiff or defendant, aa their opinion on
that fact might be. _
Cockrell,' Noy, 151, ind '.
180, a distinction Is taken between the put-
chase of an annuity without any communica-
tion respecting a loan, and a purchaae wheia
the negotiation commences with an application
to borrow money, though n« oontraet of loan
followed such application.
In a case between Murray and Harding, re-
ported in Comyns on Usury, Gl, Markham, aa
attorney, at the request of Robert Harding
rector of Grafton Regis, applied to Mrs. Mary
Murray, to lay out £120 in the purchase of aa
annuity *of £20 a year for the defend- [■459
ant's life, charged on his rectory of Grafton,
redeemable bv him at the end of the first flva
years upon the payment of £10D 10s. Thera
was no communication with her about a laa%
but merely about the purchase of such redeem-
able annuity; although Harding had mentioned
to his attorney, Markham, a wish to borrow
£100 or upwarda.
This case waa brought before the court. In
giving his opinion on it, Chief Justice De Grey
said, "communication concerning a loan hais
sometimes infected the case and turned the
contract into usury, but then the communica-
tion must ba mutual." "I know no case whera
even a meditated loan has been bona flde con-
verted into a purchase, and afterwards held to
be usurioua. To be sure it is a strong and
suspicious circumstance; but if the purchasr
jmes out to be clearly a bona flde purchase. It
ill, notwithstanding, be ifood."
''If a power of redemption be given, though
only to one side, it Is a strong circnmstanca to
show it a loon, as in L^wley v. Hooper. But
lat alone will not be conclusive."
The Chief Justice added, "in the present ease
4M
SunuB OoDsr o
f,l>wlev, being cntftled to «b urnuitj of £S00
for life, sold £160, part thereof, to Bowland
D«veDant for £1,0S0 with power to re.
ebue, on giving six months* notice. After the
death of Darenant, Lawtey brought this bilt
Kgalnst his executors for an aecouat, and that
upon payment of what should be due, the
defendants might re-asaign the annuity to the
ptaintilT.
In giving hla opinion, the Qianeellor said,
'there has been a long struggle between the
tquity of this court and persons who have
tnade it their endeavor to find out schemes to
get exorbitant interest and to evade the stat-
utes of usury. The court very wisely hath
never laid down any general rule beyond which
H will not go."
"In this case there are two questions to be
considered. 1. Whether this aaeigninent ia
be considered as an absolute tale, or a security
Air a loan.
"As to tbe first, I think, though there is
iSl'J occasion to determine *lt, then is
strong foundation for considering it a loan of
money; and I really believe in my conscience,
that ninety-nine in a hundred □( these bargains
are nothing but loans, turned into this shape
to avoid the statutes of usury."
The Chancellor then proceeds to state the
drcumstancea under which the contract was
made, and the character of the contract itself;
and although there was no treaty about a loan,
he considers it aa one. After enumerating the
circumstances, he concludes with saying,
'therefore, upon all the circumstances, I think
It was, and is to be taken as a loan of money
turned into this shape only to avoid the statute
of usury; but I do not think I am under any
■bsolute necessity to determine this point, for
I am of opinion that this is such an agreement
as this court ought not to suffer to stand, tak-
ing it aa an absolute sale." The relief asked
by the plaintiff, in his bill, was granted.
'a the noted case of Chesterfield, Executor of
er V. Janssen, reported in 1 Atk. and 1
£5,000 was advanced by Janssen, on
the bond of Mr. Spencer, to pay £10.000 should
be survive the Duchess of Marlborough. After
the death of Mr, Spencer, this bond was con-
tested by his executor; and one of the points
made was. that it was usurious. The cause
was argued with great ability, and determined
not to be within the statutes, because the prin-
cipal was in hazard. In giving this opinion,
the judges define usury in terms applicable to
the present caw. "To make this contract usu-
rious," said Mr. Justice Burnet, "it must be
either because it Is within the express words, or
an evasion or shift to keep out of the .statutes."
"Whatever shift la uaed for the forbearance
or giving day of payment, will make an agree-
ment usurious; and ia by a court and jury es-
teemed a color only. Suppose a man purc^hsse
an annuity at ever such an under price; if the
bargain was really for an annuity, it is not
VBury. If on the foot of borrowing and lend-
In;; money, it is otherwise; for if the court are
of opinion the annuity is not the real contract,
but a method of paying more money for the re-
word or interest than the law allows, it is a
eontrivance that shall not avoid the statute."
Tbe Lord Qiancellor said, "if there has
been a loan of money, and an insertion of a
mis.,
f tsB Uimm Stum. im
eontlngeney which gives a htghar rate vf hrtor-
est than the statutes allow, and the contingency
goes to *the interest only, though real [*4S1
and not colorable, and notwithstanding it be a
hazard, yet it has been held usurioas. Where
the contingency has related to both prineipsd
and interest, and a higbsr interest taken than
allowed by the statute, the courts have tben
inquired whether it was colorable or not."
Wilson reports the Chancellor to hare said,
"courts regard the substance and not the mer*
words of contracts. Loans, on a fair contin-
gency to risk the whole money, are not within
the statute; a man may purchase an annuity a*
low as possible, but if the treaty be alMUt
borrowii^ and lending, and the annuity only
colorable, the contract nuiy be nsurious, how-
ever disguised-"
Richards qui tarn v. Brown, Cowper, 77G^
was an action on the statute of usury. Rkli-
ard Heighway applied to Brown for a loan ol
money, to which Brown assented, and advanced
part of tbe money, promising to advance tho
residue, being £400, in a fortnight. After some
delays, Brown said he could not raise the mon-
ey himself, but would try to get it of a friend,
in the dty, who was a hsird man. Beighwaj
said be would give twenty or thirty guineaa
rather than not have the money. Brown aaid
that "bis friend never lent money but on an
annuity of six years' purchase. However," ha
added, "If you will take the money on those
terms, I will engage to furnish you with money
to redeem in three months' time." Heighway
executed a bond and warrant of attorney, for
conveying the anQUity to one Waters. The
money was reaUf advanced by Brown, and the
name of Waters was used by him. Heighway
deposed that Brown lirst proposed the annuity.
He himself would not have granted one. Ueigb-
way presaed for the money to redeem, but
Brown refused it.
Lord Mansfield told the jury that if they
were satisHed, "that, in the true contempla-
tion of the parties, this transaction was a pur-
chase by the one, and a sale by the other, of a
real annuity, bow much soever they might dis-
approve of, or condemn the defundant's eon-
duct, they must find a verdict for him. But
on the contrary, if it appeared to them to have
been in reality and truth, tbe intention of both
parties, the one to borrow and the other to lend,
and that the form of an annuity was only a
mode forced on the necessity of the borrower
by the lender, under color of which he might
take an usurious and 'exorbitant ad- [*4S3
vantage, then they might And for the plaintiff,
notwithstanding tbe contingency of the annui-
tant dying within three months."
The jury found for the plaintiff.
On a motion for a new trial Lord Mansfield
s^d, "the question is, what was the suhatance
of the transaction and the true intent and
meaning of tbe parties, for they alone are to
govern, and not the words used. Tbe sub-
stance here woa plainly a borrowing and lend-
ing. Heighway had no idea of selling an an-
nuity, but his declared object was to borrow
money." It is true there was a contingency
during three months. It was that whidb oc-
casioned the doubt, whether a contingency tor
three montha ts sufficient to take it out of the
statute."
The MW trial was grantad.
mt
BcoTT, BULDT or HooBK, T. Lum.
b tbe caM of Iraluun t. CbiU, 1 Bro. Cb.
Bep. 93, Lord Thnrloir ii reported to haTe
MM (referriag to prsTJoui dicta), "kU, there-
fan^ that Menu to be meant u thU, that the
■aimitf ihaJl ba abaolutelj lold without any
■tipnlKtion for the return of the principal, and
tmU it aball not be intended as a meaoB of pay-
ing intereat until inch principal ii returned.
Bnt when there ia a aala it ia not uaurioua to
Bake it redeemable."
In IJrew r. Power, 1 Schoalea ft Lefroy,
182, the plaintiff being much embarraaBed in
faia eircnmatancea, connnunieated to the de.
fendant his desire to raise money to extricate
himself from his debta. After approving his
pur^oae ajid increasing sufficiently nia anxiety
for its accomplishment, the defendant informed
him that two of bis estates, Poulagower and
Knockarin, would shortly be out of lease, and
that if lie would make the defendant a lease of
them for three lives, at the rent of £00 pounds
per annum, he would, from friendship, ad-
vance him money sufficient to pay all his debts.
Tlte plaintiff aasented to this proposition. The
bill then proceeds to cluirge much unfairness
and oppression on the part of the defundant
in making advances towards paying the debta
of the plaintiff, and states that he claimed a
bftlance of £1,016 16 for which he demanded
tke plaintiff's bond. This waa given. The de-
fendant then required a lease for Poulagower
and Knockavin, which was executed for three
jwng lives, at the rent of £200 per annum,
which was greatly below their value. The de-
fendant also obtained other leasea from the
4ft4'} 'plaintiff. The UIl details a great va-
riety of other transactions between the parties,
wUeh are omitted aa being inapplicable to the
case now before this court. The bill was
biroiight for a full settlement of accounts, and
that on payment of the balance fairly due to
the defendant, the teases he had obtained from
the plaintiff might be set aside.
The defendant, In his answer, denied the
diargefl of oppressive and iniquitous conduct
■et up in the bill, and insisted that the lands
CHlled Poulagower and Knockavin, having been
advertised t4> be let, be agreed to take them
at a valuation, and Insiated that he paid a fair
rent for them.
The cause came on to be heard before the
Haater of the Rolls, who directed several issues
to try whether the full and fair value of the
laods were reserved on the leases granted by
the plainUff to the defendant; and whether
rither, and which of them were executed, in
consideration of any and what loan of money,
and from whom.
The ease was carried before the Lord Chan-
eetlor, who disspproved the issues, and gave
hia opinion at large on the case. After eom-
■lenting on the testimony respecting the leases,
he says: "Hastings has distinctly proved that
the loan of money was the inducement to this
leasee and if it was, it vitiates the whole trans-
action. I do not mean advancing money by
way of fine or the like; but where it is a dis-
tinct lo«n of money to a distressed man, for
which security is to be taken, and he is still to
eoBtioue a debtor for It. If I were to permit
tUa to be considered aa a transaction which
BOght to stand, I should permit a complete
mUtoa of the statute of uaur^." The Chan-
cellor concluded a strong view of the testimony,
showing a loan of money to be the consideration
on which the leases were granted, with saying,
"there is no reason to send this case to a
jury." "There is sufficient to satisfy the con-
science of the court that these leases ought not
to stand."
The ease of Harah t. Martindale, 1 Bos. &
Pull. 1S3, was a judgment on a bond for £6,000.
The consideration on which the bond was giv-
en was a bill drawn by Robert Wood on Mart-
indale, Filet A Co., for £5,000, payable three
years after date. The bill was accepted, the
interest discounted by Sir Charles Marsh, and
the residue of the money paid to Martindale,
'for the purpose of enablmg him to dis- [*45ft
charge certain annuities for which ha was llaUo.
On a motion for a new trial, Lord Alvanley,
Chief Justice, said, 'it was contended that the
transaetion was to all intents a purchase of an
annuity, and this certainly was the strongest
ground which the plaintiff could take; for It
has been determined in all the cases on the sub-
ject, that purchase of an annuity, however
exorbitant the terms may be, can never amount
to usury. But If the transaction respecting the
annuity be under cover for the advancement of
money by way of loan, it will not exempt the
lender from the penalty of the statute, or pre-
vent the securities from being void. Then, is
this transaction the purchase of an annuity, or
is it not I" After restating the transaction, the
judge aalced "what is this but forbearing for
three years to take the sum of 4,260 pounds, for
which forbearance he was to receive intereat on
6,000 pounds T
The judge referred to the case in Noy, Ifil,
as applicable to this. "There," he said, "a
question having arisen whether a deed securing
a rent charge were void for usury, the court
agreed that if the original contract were to
have a rent charge, that is not usury, but a
good bargain; but if the party had oome to bor-
row the money, and then such a bargain had en-
sued by security, then that is usury.
Doe, on the demise of Qrimea et al., assignees
of Hammond, a bankrupt, t. Oooch, waa
an eiectment. Bammond had taken ground
OR a building lease at the rent of £10B per an-
num. He assigned the premises to Roberts for
£2,300, a sum considerably above their then
value, and at the same time took a lease from
Roberts at the increased rent of £39S, contain-
ing the same covenants for building as wars
in the oH^nal lease, together with a stipula-
tion that he should be at liberty, on giving six
months' notice, to repurchase the premises at
the same price for which he had sold them to
Roberts. Hammond completed the houses,
and, having become a bankrupt, his assignees
brought this action against the tenant of
Roberts. The Judge left it to the jury to say
whether the transaction between Hammond
and Roberts waa, substantially, a purchase or
a loan; and told them, "that if they thought
it was a loan, the deeds were void, the transae-
tion being usurious." The jury found a ver-
dict for the plaintiff. "On a motion [*4B«
for a new trial, counsel contended that the
deeds imported a purchase. That the principal
money was altogether gone unleas Hammond
chose to redeem; and, though it may be hia
interest lo to do, tMa ftiU not make it » n*"- J
Sanaa Ocnnrr or tkb Ukitsd Statm.
riolu tnutiaetloii. If a p«non bar* aa uumity
Mcured on ■ fnehold ettate, it may ba clearly
hU intarut to redeem it; but luch a power will
not make the bttrgain luurioui. Here, Bailey,
Ji»tic«, obaerved, "in that eaM the principal it
in hasard from the uncertain duration of life.
Here it ia in the nature of an annuity for
yean, and tliere !■ no cue In wUch an annuity
for year* hai iMen held not to be utnrioua,
where, on calculation, it appeared that more
than tlie principal, together with legal intereit,
ia to be recelTed."
The new trial waa refuaed.
In the caie of Low r. Waller, Doug. TS&,
Lord Mansfield told the jury that "the lUtute
of uBury was made to protect men who act with
tbeir eyea open; to protect them against them-
■elves. They were to consider whether the
transaction was not in truth a loan of money,
and the tale of goodt a mere contrivance and
said, "the only queation in all ease* like the
present, it, what is the real substance of the
transaction, not what ia Uie color and form."
Gibson v. Fristoe, 1 Call, 62, was an action
sF debt brought by Gibson against Fristoe et al.,
in the District Court of Dumfries. Issue was
to tte Court of Appeali
The ease was, shortly, this, John Friatoe
being indebted to John Oibson by bond for
£44G II 2 sterling, on the ITth of December,
1797, assigned him bond* of perfectly solvent
obligors for £780 currency at the agreed value
of £382 B 2 sterling, and gave a new bond
with two sureties for a balance of £106 17 2
sterling payable in March following.
Mr. Waihingitan, for the appellant, aaid, "in
all these cases the first Inquiry ia, if there be a
loan. I admit that if a real loan is endeavored
to be covered under any disguise whatever, it
is still usury." He contended that here waa
no loan, "but a purchase of property, for bonds
are property."
453*] 'In giving his opinion, Mr. Fendle-
';in, the President of the Court of Appeals,
than six per cent, for the loan o( money,
forbearance of a debt, it utury. If the principal
or any considerable part be put in ritk. It is
not usury, because the excess in tbe premium
is tbe eonsideraUon of that risk." "But if the
bargain proceed* from and it connected with
a treaty for the loan or forbearance of money,
ft fa usury ; beeanae the vendor is supposed to
bave aubmltted to a disadvantageous price un-
der the Influence of that neceatity which the
statute meant to protect him against."
Tbe judgment of the Qrouit Court waa af-
Clarkton's Administrator v. Garland, and an-
other reported in 1 Leigh, wat a bill in chan-
cery, brought by tha plaintiff to be relieved
against several eontracta, bcmds and deeds of
trusts, allsged to be otnrioni. The bilt states
numerous uauriona and oppreseive transaotions,
wbiefc are geMralllT aad pHtionlarly deniod ia
tha auwaia. TMmtnj wr- '-' — ~' '■'"
Clarkson, wanting to raise (2,236, ^tplled
to Jacobs, and offered bim as many slaves as
would command that sum. Jaeobe advaujed
. on the 23d of March, ISlG, $2,335, and
took an absolute bill of sals for sixteen slave*.
tor 0 , _
Clarkson shall pay Jacobs 12,935, Jacobs s ,
In consideration thereof, reseU tbe slaves to
him. The plaintiff charged that this applica-
tion to Jacobs was to borrow money, and that
the substance of the transaction waa a loaa,
reterving a higher interest than i* allowed Igr
law.
On the 22d of May, Clarkson again applied
I Jacobs, and obtained from him the farther
sum of (2,See.2B. For this sum he also gars
Jacobs a bill of sale for fourteen slaves, redeeis-
able by the payment of 93,894, on or before
the 23d of March, 1810.
The plaintiff aver* that this alto waa a loan,
and that the pretended tale of slaves was a da>
vice to cover the taking of usurious interest.
'Jacobs, in his answer, avers that [*458
both contracts were in truth what they purport
to be, bona flde agreementa to purchase ana i*>
tell the slaves therein mentioned.
The slaves not being redeemed. Garland,
with full knowled^ of the usury, as the bill
charges, became jointly interested with Jacoba
in both contracts. In August, 181Q, they pro-
cured Clarkson's bond for |7,000, being tha
aggregate of both debta, with farther usury (or
forbearance.
The court declared both eontracta to bs
BT, 2 Randolph, 109.
a bill to be relieved from two bonds and ft
deed of trust, given by the plaintiff to the d«-
fendant. The till states that Douglass applied
to M'Chesney to borrow $600; M'Cheaney re-
eied that it was his practice, whenever ha
at money, to sell a borae, which Douglai
Lis wil"
professed 1
irillingneSB to purchase. Some
pointment to the house of M'Chesney, who
showed him a horse for which he asked $400.
The plaintiff aver* that the horse was noi
worth more than $80 or $100, but urged by his
nccettitiea, and knowing that he could not set
the $500 from MChesney, without giving hia
price for the horse, he assented to the proposal,
and executed two bonds for the money, which
wer« secured by a deed of trust. When the
bonds became due, H'Chesney advertised the
property for aale; and this biU wa* brought to
enjoin farther proceedlnga, and to be re-
The teatlmony proved that tbe horae m»
not worth more than $100, and that it was re-
ported to be M'Chesney'i practice when he lent
money, to sell a horse at an exorlutant price ttt
The Chancellor dissolved tits injunction, eitd
IS plaintiff appealed.
The Court of Appeal*
r at legal interest, if the t
FsmncK f. Crapiur ir tx.
<k«Md of Um ft hon« *.i an onreuoiulila piiee,
wottld ba m •hift to erade tha stAtute of usury.
TIm dMTM waa revsncd; but the court b«-
tag of ounion that the quettiona of fact would
k* decided more undentaiidiiiglj by a Jury
an yirm tocb teatinumy, ramaoded the cauaa
4ftl*] *to tha Court of Cbaacery, with direc-
tiona t« have JMuea tried to aacertain tha value
of the hone, and whether Douglaaa
toced to purchase him at the prica of HOO by
tha axpectatlon of a loan.
Tha coTBiiaata in the dead of the llth of
June, 1814, granting the annuity, have been
•tatetL They aecura the payment of ten per
eaab foreTCr on the ium advanced. There i«
■o haxard whatever in the contract. Moore
■Mat, in something more than twenty jfaara,
neaiTe tha money which he advanced to Schol-
flcld, with the legal intereat on It, unleaa the
principal aum should be returned after five
yeara; in which event he would receive the
mincipal with ten per cent, intereat till repaid.
The deed ia equivalent to a bond for |S,000,
amply aaenred by a mortgage on real property,
with intereit thereon at ten per centum per an-
■mn, with liberty to repay tne principal in five
jaars. If the real contract was for a loan of
■Mmay, without any view to a purebaae, it is
plainly within the statute of usui^; and this
fact waa very property left to the jury. There
ia BO error in tnia inHtruction.
The counsel for the defendant then prayed
the court to instruct the Jury that if they shall
beKeve from the evidence aforesaid that the
l^id out of which the said rent charge men-
tioned in aald deed from Scholfleld to Hoore
waa to iaaue, was in itself, and independently
of the building! upon the same, wholly inade-
Ct« and inaufficient aecurity for said rent;
t then the Jury cannot laeallT infer, from
the danae in said deed, containing a covenant
on the part of said Scholfield to keep the aald
hoosea insured, anvthing affecting aaid con-
tract with nanry or illegality; which instruction
tlH eonrt refused; whereupon the defendant
Kyed the eourt to instruct the jury as fol-
a, to wit, that if the jury shall believe, from
tha eridenee, that the fair and customary price
of annnitiea and rent charges, at the date ot the
aaid deed from Scholfield, was In the market
ol Alexandria ten years' purchase, and so con-
tfaned for a period of ten years, then, from the
dn-unutnnces of the rent being ten per centum
en the amomit advanced, the jury cannot legal-
ij infer from such circumstance anything uauri-
ona or ill^^l in the contract.
Biit the eonrt refused to grant the said tn-
■tm-itions, or either of them, as prayed by the
eoani«el for the defendant; whereupon, the said
4<*'] 'counsel excepted to the said opinion
«t the court, and its refusal to give either of the
said iaatrucUoni as prayed.
It ia obrioxiM that the instruotlons given by
tha eonrt at the prayer of the plaintiff's coun-
ad, cover the whole matter contained In this
player of tha defendant. It la, in truth, an ef-
fort to separate the eirtumttaoeea of the ease
from eae^ other, and to induce the court, after
Greeting the Jury that they ought to be con-
■idcTcd together, to Instruct them that, sepa-
nddy, so one of them amounted in itself to
navvy. Tha eourt onght not to have given this 1
instruction. It waa pfoper to aubmlt the ease,
with all its circumstances, to the consideration
of the jury; and to leave the question whether
the contract was, in truth, a loan, or the bona
lide purchase of an annuity, to them.
There is no error in the opinion of the court
refusing the second and fourth instructiona
prayed bv the defendant and avowant in the
court below, nor in giving the instruction*
prayed by the plaintiff in replevin; but this
court is of opinion that the Circuit Court erred
in deciding that Jonathan RcholReld was a
competent witness for the plaintiff in that court.
This court doth, therefore, determine that the
Judgment of the Circuit Court be reversed and
annulled, and that the cause be remanded to
that court with directions to aat aside the ver-
dict, and award a venire fadaa da novo.
This cause came on to be heard'on the tran-
script of the record from the Circuit Court of
the United States for the District of Columbia,
holden in and for the County of Washington,
and was argued by counsel; on consideration
whereof, it is ordered and adjudged by this
court that the judgment of the said Circuit
Court in this cause be, and the same is hereby
reversed and annulled, and that this cause be,
and the same is hereby remanded to the said
Circuit Court, with directions to set aside the
verdict and award a venira faciaa de novo.
ELIZA CHAPMAN and Robert Chapman, by
Kitty Chapman, their Mother and Neat
Friend, Defendants in Bn«T.
e or the
Bt the statale ot Uarrlsod of ITBfl, ch, eT, s. IS,
manumlsaloDs of slaves, br will and teslametit, mar
be made to take effect at the death of the lestsior.
Tha traCitor may deirlH or cbargf his reHl eaUte
with the na;meat ot debts, to make the manumla-
Slon effecflTe, and not Id piejudlc« of credltora.
The riffbt to freedom maj be tried at law. In a
•all "Kaln" Hi* eiecutgra, st
salt, admit the eil'atoDce of a safflcleccr ot real
aauts ot real estate to pay the debts ot his tcatm-
tor.
A JadEineot at lew In favor ot mnnuniltteil
ilaves, In a lult sfielnat an eiecutar, obtained oa
the ■dmlssloa by the executor of s snOlcleDcy ot
assets, msy be set anide In equilj. If aiipta ndmlssloD
was made wlthant foundation li; fnct. or In fraud
or miatske. Id such ■ proceedlni; In eaullv. to
which the execu* — "■ '"-■' "
ins lutenat
-. the
"\(fnifI?lBt"i
d all
and ot the creditors la the pur ..
The words la a will, "after my debts and runei-al
charsea arc paid. I devise aod bequeath ai fel-
lovB, ' anouDt to a charge uiMn the real estate far
the bay meat ot debts.
fOiea s testator manamlts hit slaves by will «Dd
SvntMM CoUBT or tub United Statics.
IntentlOD Hut the mBBumluloD
Kit e*caM. the maDiteit iDtentloii. wlttiout <
B Of l__ .
bail B ted : lad [he; mur pursue thdr clulma
cgult7, or accotdlBg to the italates ol MaryJai
Wheo an executor p«raiLU maaumlttcd t^ava
to at large and tree, under ■ miDumJsslon (o la
effect It t^e dPatb ol the testator, be caonot rcci
auCh asHDt, Nor can It be revoked unOer an ord
Of the Orphan'* Court of Maryland, tor the sale
all the perional eilile of (he (eatilor : that cou
not biLTlng Jucladlctlon oE the queatlon ot coan
It h.
i[1tpd t
t In Talue more tban latSclenl to pa
hla dehta, without rbe sale ot sJavea mauuniltle
br bit will. t»iBe pei-soUB are tree, notwlthiUndlii
a deficiency of pergonal aaaeta.
1 United Statea for the County of
WaahingtoD, in the DiBtrict of Columl'ia.
The defendant! in error instituted a suit in
the Circuit Court to recover tlieir [reedoin, i
leging that they were entitled to it unilrr i
last nill and testBinent of their late mi^lir!
Frances Edelin, deceased, in the State of Mar
land. The plaintifT in error claimeiJ the pel
tionert as hia slaies, having purchased them i>f
the Hole acting executor of the decea^tcd. at
aftle made by the order aod aiithoiity of tli.
Orphan's Court of Prince George's County, in
Maryland; and, by the consent of all parties to
the suit, the executor waa admitted to (Iff end
the same in the court below. It was proved
the Circuit Court that the slaves were sold by
tbe e
mitor, with all the other personal estate
Orphan's Court, as assets in the hands of the
executor, to pay the debts of the deceased;
there not being assets enough to pay the same
without the sale of laid slaves, and without re-
course to tbe real estate. It was contended
that the sale was a good one. and that the
elaves were not entitled to their freedom. The
following facts in the case were agreed, and
■ubmitted to the court, with the other evidence
in tbe case, and making a part of the record
now before this court;
It i« agreed in this caae—
1. That the petitioners are the same named
in the will of Frances Edelin, deceased, to
whom she gave their freedom after her death,
as appeara by the aail will, a copy whereof is
hereto annexed.
2. That Gdetin, the defendant, was the ex-
ecutor of the last will and testament of said de-
ceased, and, as such, sold, in the year 1S33,
■aid petitioners to the other defendant, Fen-
3. That tbe sale of the petitioners was made
in Prince George's County aforesaid, where the
deceased lived at the time of her death, and
where the petitioners were; and that, from the
time of deceased's death to tbe time of their
tale, they were permitted by the executor to
go at large as free, and that after the purchase
made by Penwick he brought them to the Dis-
trict of Columbia, where the present suit was
Instituted, and that after the uutitution of the
Iti
said suit, Penwtck transferred his elahii to the
petitioners to the defendant Edelin, who repaid
him his money, and appean to defend the
*4. That the deceased left real estate ['401
to an amount in value more tban sirfficient to pay
iicr debts without tiie sale of the negroes eman-
cipated by tbe will, as will appear by her will
referred to, and nude a part of this agreement;
but not personal estate sulftcient.
5. That the original copy of all the proceed-
ings had in tbe Orphan's Court of Prinoe
(George's County, relative to the settlement of
the deceased's estate, by her executors or ad-
ministrators, may be filed as part of this caae.
The will of Frances Edelin, the proceedinn
livered by Mr. Justice M^ayne. Upon a hear-
ing in the Circuit Court, judgment was giTsn
in favor of the petitioners in that court, now
defendants in error, and from that judgment a
writ of error was sued out to this court.
The case was argued by Mr. Brent for the
plaintilf in error, and by Mr. Key for the da-
fendentB.
Mr, Brent stated that the only questions for
the court to decide are, whether the defend-
nts in error are entitled to their freedom w
ot, under the circumstances of the case; maii
hether the plaintiff in error (the executor>
D9, or had not, the right to sell them, as
assets to pay the debts of the testator. After
I'eoding the petition, theanswer, and the agree-
ment as to the facts in the case, and the will of
Frances Edelin, he referred to the proceedinga
in the Orphan's Ctmrt of Prince George's
County; which showed that the personal estate
of the testator was insufficient to pay the debts
of tbe deceased, and that under these oircum-
:;eB the Orphan's Court ordered the sale of
the negroes, and they were sold.
Prior to the year 1796, there could not be,
under the laws of Maryland, a manumission of
slaves by wilt. This act was, In 1798, repealed,
under certain limitaticma; and among them.
that no such manumission la available if dona
prejudice to creditors.
The first ground for tbe reversal of the judg
ment of the Circuit Court, is, that this manumia
was in prejudice of creditors. The foot ot
the insufliciency of the personal estate, ex-
clusive of those negroes, is established ['484
by the proceedings of the Orphan's Court, and
the accounts of the executor.
Creditors are not bound to resort to the real
estate for the satisfaction of their claims, when
mal estate can be found. Cited, 1 P.
:, 2H, noUj 2 P. Wms. 6ft4; I Rob. on
Wills, 67; Kelty's Laws of Maryland, Act ol
179S, ch. 101, subdiv. 7 ch. Thia act declarpt
what shall be assets for the payment of debts
among which are negroes.
In a case in 1 Harris fc GlU'a Reports, the
testator charges his land with the payment ul
debts, rather than that his negroes shall be
sold, and deprived' of their freedom,, which is
given to them. In this caae, the question as to
the construction of the Act of 1706 was
Mr, Key, contra.
The teaUtor died In 1826, and, by ber
Peters •
U88
Frhwiok t. Cbapiuh n al.
nfB, ah* clikrgei ber whole estate with the
ptLfiDent of ber debts, both real and peraonn.1,
and gaTB freedom to the defendaats in error.
The executor aasented to the bequest of free-
dom; they were at libertj for ei^ht years,
when, under an order of the Orplian's Court,
to which the; were not parties, and oC the pro-
ceeding of which court they had no notice or
knowledge, they were taken and sold. Over
aneh ■ case tliat court bad no autbnrity or
Jurisdiction. The court could not manumit.
It will be found, on an examination of the
proceedings of the Orphan's Court, that in
July, 1633, the balence due the exocutor waa
•591, and the court did not apecilically order
the negroes sold. The order was general, to
•ell all the personal estate, and not to sell any
PBTticular part of it. This is ehown by the
fteta agreed.
By the Mth chapter of the law of Maryland
of 1720, negroea em not to be sold aa long as
there are other goods. In tbis case, the only
debts are to the exeeutor himself for over-pay-
inenta by him in bis administration of the ea-
tate; and he is the residuary legatee.
All the legatees, on a deficiency of other
assets, must contribute- 2 Vem. 708; 2 Uad.
a. 109, 137; 2 Ves. Jun. 416, 420.
Where it may be collected from a will that
any particular legacy should be paid, and ex-
4i»"] empted from contribution, in the •event
ti ft deficiency to pay debts, it hIiqII be done.
In the case of a bequest of freedom, there
■nnst, from its very nature, be such an inten-
tiMi. How could tlie negroes be made to eon-
tribut«r The whole of the bequest is defeated,
•nd its purpose destroyed, If the executor lias a
tien on the freedom of the negroes for con-
tribution. Freedom cannot be parted, it can-
not be enjoyed, nor does it exist unless it is
efltirs. Any restraint upon it, which puts in
the power of another a right to aell a part of it,
destroya it altogether.
No inference can be drawn from the bequest
«C freedom, but that it was entire and unin-
emubered. It was fully, completely and irrev-
eeably bestowed, when it waa given at all.
Nor does the taw warrant the claim which is
mftde by the counsel for the plaintiff in error,
thftt, because there is a deficiency of personal
••tate, when the real estate is also charged
with the debts of the testator, perROnal estate.
specially bequeathed, shall be taken from a
legatee and sold, leaving the real estate free
and unmolested.
It is also contended that the executor, having
eonacnted to the freedom of the defendants in
eRvr, cannot afterwards withdraw thia consent
■ad subject them to slavery. Once free, al-
ways free. By no law or proceeding, existing
er authorized In any State of the United States,
ckB tbey again be made slaves.
Where a legacy has been assented to, or
paid by an executor, it cannot be recovered
back. This principla applies to the case before
the court, as the freedom of the defendants was
asaeated to by the execntor. Cited, in sup-
port of the discharge of the legacy from rec-
Umation. 1 Vem. 94; 2 Ventr. 358; 2 Clian.
Cases, US; 1 Chitty's Dig. 630.
Mr. Brcftt, in reply, inaisted that real estate
.<«ll ba resorted to in no other case but where
then is a deficiency of personal eatate, and
even In such a caae, by the law of MaryUad,
an rppllcetion to make the real estate liable
niueL be made to the Chancellor.
The testatrix does not charge her whole as-
tute with her debts. This is not the true In-
trepretation of the will. Whtn debta are
charged by a testator on an estate, that portion
of it which, 'according to law, ia first [*48B
held liable to debU, is understood to be so
charged in the first place. This ia a juat and
legal execution of the will. In Roberta on
Wills, 176, it is laid down that real estaU wiU
not be ordered for sale to save a charity.
Cited, also. In 1 P. Wms. 294.
It is denied that the executor could glre the
negroes their freedom, to the prejudice of cred-
itors. Their rights could not be affected by
any act of Uie executor. Nor did he give
them their freedom; be barely allowed tbem to
go at large.
Hr. Justice Wayne delivered the opinion of
the court:
The object of this writ of error Is to re-
verse a judgment of the Circuit Court of the
District of Columbia, for alleged error in hav-
ing adjudged the defendants in error (colored
persona) to be free and discharged of and from
the service of the plaintiff in error.
The judgment of the court was rendered up-
on a statement of facts entered into at the trial
term of the cause, signed by the counsel of the
It is necessary, however, to set out the facts
in the esse more in detail, as they appear by
the record of the proceedings in the cause.
ElLta Chapman and Robert Chapman, In-
fants and colored persons, by their mother and
next friend, claiming to be free by the laws of
the land, allege that they are illegally detained
and confined in custody, by one Robert Fen-
wick, who sets up some pretended claim or
title to them, as his slaves for life. They pray
that a subptEna may issue to the marshal of
the District of Columbia, commanding him to
summon the said Robert Fenwick to be and
appear before the judgea of the Orcuit Court
of the District of Columbia for the County of
Washington, to answer the allegation of the
petitioners in the premises. The euhpccna waa
issued, and on the day of the return of it, the
defendant appeared by his attorney, and in his
plea denied that the petitioners were entitled to
their freedom, as alleged, and put himself up-
I the e
mtry.^
Before the trial of the issue, by consent of
all psrtiee, one Richard J. Edelin was admitted
as a party defendant, he being the executor of
the last will and testament of Frencea Edelin,
deceased, late of Prince George's County,
Maryland; and having, *aa such, sold [*4«T
the petitioners to the defendant Robert Fen-
wick, aa the executor contends, in virtue of an>
order of the Orphan's Court of Prince George's
County to sell all the personal estate of Frances
t^elin. This order was made upon the peti-
tion of the executor, dated leth July, 1833;
in which he states that Frances Edelin, by her
win. had directed that certain negroes should
be free at her death; and that he had discov-
ered there were not assets enough, independent
of thnac negroes, to diacharge the debta of the
testatrix.
U7
eupKEiH CoDBT or THi Uhr^ Statsb.
The •xecutor hsd inclinded the negroei mkn-
umitted bj the will En an inventory and ap
pr&iaement of the pergonal eatate of the testa
trix, returned by him to the Orphan's Court oi,
the ITth of January, 182S. The will ia dated
the 2d daf of November, 18Z6. The testatrix
died before the Sth da]! of December of thi
lame year; and immediately after her death,
the defendant, Richard J. Edelin, took upon
biiuBelf the burden end execution of her nil).
The teBtatrix begins her will in the following
words; "In the name of God, Amen. I,
Francea Edelin, of Prince George's County, in
the State of Maryland, beine of Mund and
disposing mind, memory ana understanding
do mate and publish this, my last will and
tcatament, in manner and form follonring:
First, and principally, I commit my soul to the
mercies of my dear Redeemer and Lord Jesus
Christ, and my body to the earth, to be decent-
ly buried; and after my debts and funeral
ehargei are paid, I devise and bequeath u fol-
lows." Then follow sundry devises and spe-
dflc legacies; and so much of the will relating
to the freedom of the defendants in error, and
to the other persons manumitted by the will, is
in these words: "Item, I give and bequeath
to my nephew Richard James Edelin the
small house and lot now occupied by Robert
Frazer, which I give to him, his heirs and as-
signs forever, with this proviso, that the
negroes which are hereinafter mentioned to be
free to live in the back room of said house."
"Item, negro woman Letty, her daughter
Kitty, a mulatto, with her three children,
to wit, Eliza, Robert and Kitty Jane, with
their future increase, snd an old woman named
Lucy, I do hereby declare them free at and
after my death, and they shall have the right
to IJTe in and occupy the back room in the
house and lot I give and bequeath to my neph-
4BS*] ew Richard James *Edelin. To the
two old negro women, I give them and be-
queath 10 dollars a year to each of them as long
•a they live; and 10 dollars a year, during two
years after my death, exclusive of the year in
which I die, to mulatto Kitty. Item, tny three
nephews, John Aloysius, Richard James, and
Walter Alexander Edelin, for and in consider-
ation of the bequests I have made them, shall
pay every ^ear to negro woman Lucy and to
negro woman Letty, 10 dollars for every year the
said negro women may live, as mentioned in
the aforegoing item; and my nephew John B.
Edelin, for and In consideration of the bequests
I have left him, sfaal] pay, during the two
years above mentioned, to mulatto Kitty, 10
dollars for each year."
Act of 1796, ch. 67, see. 13, "that from and
after the passage of this act, it shall and may
be lawful for every person or persons, capable
in law to make a valid will and testament, to
grant freedom to and effect the manumission
of any slave or staves belonging to such per-
son or persons, by his, her or their last will and
testament; and such manumission of any slave
or slaves may be made to take effect at the
death of the testator or testatora, or at such
other periods as may be limited in snrb last will
■nd testament, provided alwaya, that no man-
'ssion hereafter to be made l^ last will and
'eslament, ihall be effectual to give freedom t«
^n^ slave or slaves, if the same shall be In prej-
dice of creditors, nor unless the said slave oi
■laves shall be under the age of forty-five
years and able to work and gain a sufficient
naintenance and livelihood at the time the free-
dom given shall commence."
The agreement or statement of facts entered
into between the counsel of the parties, at the
trial term of the cause, and upon which the
judgment of the court was given, is as follows:
1. That the petitioners are the same named
in the will of Francea Edelin, deceased; to
whom she gave their freedom, after her death,
as appears by said will, a copy whereof la here-
to annexed.
2. That Edelin, the defendant, was the ex
ecutor of the last will and testament of aaiS de-
ceased, and, as such, sold, in the year 1833,
said petitioners to the other defendant, Fenwick.
3. That the sale of the petitioners was made
in Prince 'George's County aforesaid, [*4*S
where the deceased lived at the time of her
death, and where the petitioners were ; and that,
from the time of deceased's death to the time of
their sale, they were permitted by the executor
to go at large as free; and that after the pur-
chase made by Fenwick, he brought them to
the District of Columbia, where the present
suit was instituted; and that, after the institu-
tion of the said suit, Fenwick transferred his
claim to the petitioners to the defendant Edelin,
who repaid him his money, and appears to de-
fend the suit.
4. That the deceased left real estate to an
amount in value more than sufficient to pay her
debts, without the sale of the negroes emanci-
pated by the will, as will appear by her will re-
ferred to, and made a part of this agreement;
but not personal estate sufficient.
6. That the original copy of all the proceed-
ings had in the Orphan's Court of Prince
Reorge's County, relative to the settlement of
deceased's estate, by her executors or adminis-
trators, may be filed as a part of this case.
Under the foregoing circumstances, the state-
ment of facts entered into by the counsel of the
parties, and the law of Maryland permitting
the testamentary manumission of slaves when
it is not done "in prejudice of creditors," the
question to be decided is, were the defendants
manumitted in prejudice of creditors I And we
will first consider it by inquiring what effect
the words in the will, "and after my debts and
funeral charges are paid, I devise and bequeath
as follows," have to charge the real estate of
the testator with the payment of debts, in the
event of there not being a sufliciency of person-
al estate to pay them, without the manumitted
slaves. Without any construction of our own
upon these words, the effect of them to charge
the real estate is settled by decisions which are
uncontested and cannot be controverted.
In the cose of Kidney v. Coussmaker, T. lim.
1 Ves. Jun. 2fl7, It Is said, "after payin,';
debts," amounts to a charge upon a real estate,
for which very little is sufficient.
In Newman v. Johnson, E. ISSZ, 1 Vern
46: "My debts and legacies being first de-
ducted, I devise all my ruU and personal estate
to J. B." These words were said to amount to
a devise to sell for payment of debts.
*A deviM of land after pajmeot of [*4T«
FnwiOK T. Chapiux n u.
debta b % A»r» en U« luid; for, unttt d«Ua
p»id, teaUtor ^ves notUng. S Ves. 73B.
In tba MM of Trott T. Vernon, 8 Vein. T08,
tba teaUtor willed Mid dniaed thmt hia debts,
legaeiea knd faoerAl expoiH* ihould be paid in
Um fifst pUe«, and then derited hie land to ble
•later for life, with remeinder to her isiue — re-
luinder orer, and made the lister executrix; It
wka decreed that tbe lands b« charged with the
debt*. The Lord Chancellor taid it was but ntt-
nral to inppose that all persons would provide
for the pBTment of their juet debts ; and, direct-
place, bis debts, etc., ahould be paid. See caBes,
Ch. temp. Talb. 110; 3 P. Wms. 96; 1 Ves.
Sen. 499; 8 Johns. Ch. 614i for th« tame doo-
And fn the case of the Barte (rf Godolphin v.
Fennock, 2 Ves. Sea. 270, It was held that
real estate was charged for tbe pajment of
debta, under a general clause in a will that
debt* should be first paid and satlsfled. Though
e«aea both before and after it can be found of
a contrary character, yet that sveh a general
clause will charge real estate, has been always
held. In the case before us, the word "after"
implies, as strongly aa any word in the English
language can do, that the payment of debts la
ft conditiun precedent to the abiolutenett of any
entire devise in the will. A contrary doctrine
■eems to have been held in Davis v. Oardiner, 2
P. Wms. 18B, and it was so held under the
devise in that case; but the Lord Chancellor,
in his decision, admits that the real estate would
have been charged in a case, which ts, indeed,
the case under the will of Frances Gdelin. He
■aye, "I admit the portions might be charged
on tbe real estate, had the devise of the land
been to the son In fee absolutely; for without
such eoDstmction, the devise would have been
void, and the son would have taken the land
by descent. So that the will must, in such a
cue, have signified nothing as to the land, un-
less it were to operate so as to charge the land
with the legacies, and to intimate that the heir
waa not to take it until after the legacies paid."
And tiiere is no difference. In the rule ot eon-
aimction, between legatees and creditors.
Bnt leaving out of view the words in the
471"] will, "and after "my debts and funeral
chargea are paid, I devise and bequeath as fol-
lows," and the authorities which have been
cited to show that they make a charge upon
the real eatate for the payment of debts; would
tbera not be a charge upon the real estate for the
payment of debts, if it be manifeet from the will
that it waa the Intention of the testatrix that the
manumitting clause in her will was to take
placa, or to have effect at all events T The gener-
al rule is that the personal estate of the testator
ahall, in all cases, be primarily applied In the die-
dytrga of his personal debts or general legacy,
■nleaa he by express words or manifest inten-
tion exempt It. Bac. Abr. tit. Eiecutor and
Administrator, L. 2. The testator may ex-
empt a part of it by making it a particular leg-
acy; or tbe whole of It, either by express words,
•r plain manifest Intention, or by giving it
aa a specific legacy. Adams v. Meyrick, 1 Eq.
Ab. 271, pi. 13; Bamfield v. Wyndham, Prec.
Id Ch. 10; Wainwright v. Bendlows, Prec. in
Ck. 4G1; Amh. 661 ( SUpIeton v. OolviUa, Cas.
f Ii. ad.
T«mp. Tal. ZOS; PtiilHpa t. Anneibr. t Atk.
68; AncBster v. Mayo. 1 Bro. Oi. Ca. 4M; Webb
V. Jones. 8 Bro. Ch. Ca. 60} Burton v. Knowl.
ton, 8 Ves. 107; Milnea t. SUter, fl Ves. 30&
In Jonea v. Selby, H. 170B, Prec. In Ch. 288,
it is said, "where the testator's intention clearly
appears that a legacy should be paid at aU
events, the real estate Is made liable on a defl-
ciency of personal assets." That such clear
intention of the testator will charge the real
estate is also decided by authority. Waa it
clearly tbe intention of the testator that theea de-
fendants should be free at all events, as far as she
had power to make them so, under the law of
Maryland T We think it was ; and the conclusion
is sustained by the words of the manumittiog
clause of the will, by the provision which the
makes of a place for their residence, by the an-
nuities which are bequeathed to some of them,
the manner in which they are made, and above
all, we aay, by the nature of manumission itself.
After naming the slaves, her language is, '^
do hereby declare them free at and after my
death, and they shall have the right to live In,
and occupy the back room in the house and lot
I give and bequeath to my nephew Richard
James Edelin," And the devise of that house
and tot to Richard James Edelin (the now
plaintiff in error) is made with "this proviso,
that the negroes which an hereinafter men-
tioned to be free *to live In the back [*47S
room of said house." In confirmation, too, of
its having been the Intention of the testatrix
that these negroes were to be free at all events,
it is worthy of remark that the effective worda
of manumission are in strict conformity with,
or a repetition in part of, these words in th
statute of Maryland; "and such manumissloa
of any slave or slaves may be made to take ef-
fect at the death of the teatator." But the tes-
tatrix, after declaring these negroes to be free
at and after her death, provides for them a res-
idence; and the measure of her benevolence ha-
ing unexhausted, she bequeaths to some of them
annuities or pecuniary legacies; two of them
aa charges upon her estate, and the rest she di-
rects to be jMtd by her devisees and nephews.
In consideration of the bequests she had made
to them. Can it be supposed by anyone that
such provisions would have been made by tba
testatrix for these manumitted slaves. If it had
not been her intention that they should be tree
at her death, at all events! We think no ona
will answer the inquiry in the nepitive. But
without such assistance from a will to collect
the Intention of a testator, the nature of the
thing directed to be done may clearly show an
Intention that it is to be done at all events, so
to make real eatate liable for payment of
debts on a deficiency of personal assets. Aa,
for instance, when the thing to be done cannot
be partially performed by the executors, with-
out defeating altogether the Intention whiek
directs it, and the thing Itself. Manumission,
to take effect at the death of a testator, is of
that character. What is manumission t It ia
the giving of liberty to one who has been In
Just servitude, with the power of acting, ex-
cept aa restrained by law. And when this lib-
erty Is given in abaolute terms by will, under
the law of Maryland, it can only be defeated
by the person conferring it, having done it in
prejndica of creditota, or fay ttw slave standini
in
BuPKun CouwT or thb Uhitb» BnAjt*.
1b tin Othar predlc&ment of the law, of being
over forty-Sve years of age, uid being unable
to work and gain a livelihood at the time tlie
freedom given ahail commence.
But what meaning Bhall be given to the
words of the statute of Maryland that "no man-
nmission hereafter to be made by last will and
tettament shall be eifactual to give freedom to
any slave or slaves, if the same 'shall be in preju-
dice of creditors I'" It is that the manumittor
must not be insolvent; that a creditor of the tes-
tator shall not be deprived in reality of his
4TS*] debt, *by the manumission. Aiiy other
construction In favor of the creditor, from any
right to personal assets for the payment of
debts, of the executor's obligation »o to an-
ply the whole of them, or in favor of the
creditor's remedy at law to have the personal
assets applied to the payment of his debt, in-
cluding manumitted slaves, when the other
personal estate is not enought to pay all debts,
or against his being carried into a court of
equity, to make land liable for his debt, when
the personal assets have been exhausted, ex.
elusive of manumitted slaves; any other eon-
■truction than that which have been given to
the words "in prejudice of creditors;" would
interfere with the tight of a testator to make
his real estate chargt^able with the payment of
debts, when he manumits a slave; and would
therefore confine elTcctive manumisEiuns to|
those eases Id which a testator leaves personal '
property enough, besides the mn mmilled slaves, ;
for the payment of his debts, or when he dies
owing no debts. It would also, so far as the
creditor's remedy at law, or his not being
ried into a court of equity are concerned, be
equivalent to a denial of a testator's
make a specifle legacy of all his slaves, and to
charge the payment of his debts exclusively
upon bis land. The first is not in conformity
with the statute of Maryland; and the second,
no one will deny to be a testator's right. The
■tatut« is a privilege to all persons capable in
law to make a valid will and testament, to grant
freedom to, and effect the manumission of any
slave or slaves, belonging to such person or
persons, by will and testament; and it may be
made to take effect at the death of the testator
or testators, if the same shall not be "in pr-:ju-
dice of creditors." Now, can the construction
of that statute be that the testator is limited to
the manumission of staves only in the event of
his having other personal property sufficient to
pay debtsi or to deny to him a right, when he
manumits, to do what he could have done be-
fore the statute was passed, and what it must
be admitted he can still do— to make all his
slavn a spedGc legacy, and to charge his land
wilb the payment of his debts, even though he
•lay have, at the time of his death, no other
persons! property than slaves. But in oppo-
sition to the protest against any interference
with a creJitor's right to have a remedy at law
to enforce the payment of his debt out of the per-
aonal assets, and against his being carried into
474*] a court of equity to make "the land
liable, when, by the manumission of slaves, the
other personal assets shall be insuRicient to pny
his debts; it is sufficient to say that he holds
this right in all cases at the will of a testator,
and In many cases subject to the dubious ex-
pression of a testator's intention. The creditor
198
from the lands of ths personalty, when tl.v tea-
Inter leaves it doubtful from what funds hb
debts are to be paid; or when the executor
doubts, from the will, or the Indebtment of his
testator, how aesets are to bo applied, or wheth-
personal estate bos been left as a specillc legacy,
or when the specific legatee of a part contends
for the payment of debts out of the real es-
tate; and in many other instances, with this of
manumission added to them; when the personal
property, besides, is insufficient to pay debts;
on account of its reasonableness, and because
the legislative intendment of the statute of
Maryland, allowing freedom to be given to
slaves by will, might be defrauiied in the great-
er number of cases, it a creditor was not re-
quired to go into equity to obtain his debt by a
sale of the testator's land.
This construction, too, of the words "in
prejudice of creditors," and of a creditor's ob-
ligation to go into a court of equity, is in exact
conformity with that indisputable rule in equi-
ty that, where one claimant has more than one
fund to resort to, and another claimant only
one, the first claimant shall resort to that fund
on which the second hsi no lien. Lenox v.
Duke of Athol, 2 Atk. 446; 1 Vca. 312; Mogg
V. Hodges, 2 Ves. 53; Trimmer v. Bayne, »
Ves. 20B.
With this rule In view, see, by a course of
short reasonings, how absolute its application
is to sustain the correctness of our construction
of the words in the statute, "in prejudice ot
creditors," and of a creditor's obligation to go
into equity, in a case of manumission, after
other personal assets are insufllcient to pay
debts.
Manumission is good by the Act of Maryland
(17U6, ch. 87, sec. 13), it it be not in prejudice
of creditors. If ample funds exist, and they
are accessible by the laws of Maryland to ths
creditors, they cannot be prejudiced.
Lands devised for the payment of debts, or
which have become 'chargeable by im. [*ITS
plication, constitute a fund for the payment of
debts; and an amp^e and plain rcmeity is ad-
mitted to exist in the laws of Maryland so to
apply them. How, then, are creditors preju-
diced, if the land liable, in a case of manumis-
sion, is sufficient to pay all of ■ testator*!
debts?
As to an executor's obligation to apply per-
sonal SBSFts to the payment of debts, not
apeciRcally bequeathed or manumitted, an o^
posite construction to that which has been giT-
en to the words "in prejudice of creditor*,"
would be to make him master of the rule dl>
recting the application of assets; and in all
cases of manumission, would place it in the mi-
ccutor's power to postpone or defeat the testa-
tor's intention in that regard. The will is the
executor's law, and he is no more than the tes-
tator's representative in all things lawful in tha
will. A specific legacy of all the personal prop-
erty is a law to him. The manumission of all
the slaves of his testator, if he leaves no other
personal property to pay debts, and if it be mado
in a way to charge real estate with the payment
of all debts, la equally hie law. In acase of man-
Paten »,
1»3<
t^KWICK V. ChaPIUM n AL.
mniadoB and Ininffldciuiy of other peraonal
■■■eU to pay debta, It !• the duty of bd execu-
tor ts fi)« bu bill kgainst the creditors And itll
intemted In the estate; placing the numuTnlt-
ted tlavea in the KuardJanahip of the Chancel-
lor, aad praying that the landi may be made
liable to the nayment of debts, that equity may
be done to ail concerned, according to the law
nt equity. If an executor withholds freedom
from manumitted slaves, the slaves may prefei
their petition at lavr against the executor, ot
■gainat any person holding them under him,
•ad they may recover thfir freedom by a judg-
ment at law, though the question raised by the
Ct« ia, that the manumission has been made
prejudice of creditors. And the slaves may
absence of such provision, contemplating
that tbere ii a legal remedy to secure it. If an
executor permits manumitted slaves to go at
lArge and free from the death of the testator, it
la an assent to the manumission, which he can-
not recall any more than he can, after assent -
lu to • legacy, withdraw that assent.
Nor caji he deprive the manumitted persons
of their liberty hy the order of an orphan's
eonrt in Maryland for the sale of alt the per-
■ooal pr<^ierty of bis testator, upon a sugges-
47S*] tion that, 'besides the manumitted
«l»Tea, there is not enough personal property
to pay debts: that court having no jurisdiction,
by the laws of Maryland, to try the question
of freedom. And if, by such onler, they have
been sold by the ezacutor, they may sua f~~
their freedom in a suit at law, against the pu.
ehaaer, or against any other person holding
them in alavery.
Tbe decision in the case from Z Bar. ft Gill
1, of Negro George et al. v. Corse's AdininlS'
trator, waa urged in argument in opposition to
the oiii':ions juat expressed. In that case the
petiEionera claimed their freedom in virtue of
the will and testament of their master James
Corse. The manumitting clause of the will
0vem freedom to some of the slaves at the tea-
tator't death, and to others when they ahall
hava arrived at particular ages; and the testa-
tor farther says, if bis personal estate, exelusire
of the negroes, should not be sufflcient to dis-
charge all his Just debts, "then my will is that
mtj executor or administrator, as tbe case may
be, may sell so much of my real estate aa will
Eay my debts, so as to have my negroes free, as
efore stated." The testator makes speciflc
4enBCa of real estate in fee to his son, and de-
vises and bequeaths to his brother, U. Corse,
tbe residue of his estate, both real and person-
■], with the unexpired time of the negro girls
and boys, as designated in the first clause of
tke will; and he appointed TJ. Corse executor.
The case was submitted to the jury in the
Kmt County Court, upon a statement of facta ;
and with instructions from the judge that if the
fury believed tbe facts, they must flndaverdict
for the defendant. The verdict and judgment
being against petitioners, they appealed. In
Uw statement of facts, it is admitted that
the personal estate of the testator, either in-
•hsding or exJnding his negroes, was not, at
tka tima «f the execution of hia will, nor at
■■y tiBW after, sufficient to pay his debts; but
tkat hia raai aatate, exclusive of the oegroes.
neral charges. Upon the appeal, three Judgea
decided to affirm the judgment upon the ground
that "the question of the existence of a suflicien-
cy of real SBsets to pay the debts of the testatco',
never can be tried on an issue between the exec-
utor or admintstrator only, without "prejudice'
to creditors. That It was an issue to which
tbe creditors were no party, and to protect
whose interest nobody "appears." And [*47I
the court farther says, the admissions made by
the appellee, he was unauthorized to make;
and the court was incompetent to pass jadg-
ment upon the facts they contained, not being
matters in issue in the cause. The court also
say, "as far as relates to the personalty, the ex-
ecutor or administrator is competent to act for
all concerned; but in trying the facts whether
there be assets by descent in the bands of the
heir, and what is the amount thereof, he has
no interest, either personally or in right of rep-
resqntation." With all respect for the judges
deciding that cause, these opinions cannot
command our assent.
We think with Judge Cranch, and use hia
language in regard to that decision, when he
gave his opinion in the Circuit Court in this
case. The judge says, "when lands are de-
vised to the executor, to be sold for the pay-
ment of debts, aa when the lands are charged
for the payment of the aebts and a power is
given to the executor to sell tliem, the lands
are as much a fund in bis hands for tbut pur-
pose as the goods and chattels; and be repre-
sents tbe creditors in regard to the lands, so far
aa their interests are concerned, as much as he
does in regard to the personal estate; and tbe
creditors are as much a party in tbe issue in re-
spect of the lands, as they are in respect of the
goods and chattels. When be is charged with
the sate of his testator's lands, for payment of
debts, he is aa much bound to inquire in regard
to tbe lands, as be is in regard to the personal
estate. For it ia his duty to execute the whole
of his testator's will; and, in such a case the
creditors have aa good a right to look to the
land, through him, for the payment of those
debts, at they have to look to tbe goods and
chattels, tlirough him." To these remarks we
add; it Is well settled that executors have power
' sell the real estste, where such power is giv-
to them, or necessarily to be implied from
Wiltshire, 4 Mad. 44; Jac. Jc Walk. 189. And
' V. Abr. 920; Hanker v. Buckland, 2 Vern.
I, it is said, "if a man devise lands to be
sold by one for payment of his debts and lega-
cies, and make the same person his executor,
the money made by such person, upon the
sale of the land, shall be assets in his hands."
Now if, in case of auch a devise, tbe executor
I sell, and does sell, bona fide, and by doing
__ can deprive 'the creditors from all [*41»
claim upon tbe land; substituting the price of
it aa assets — doing this without in any waj
consulting the creditors, and in virtue ot tn«
devise for that purpose; why may not the ex-
ecutor admit, in a suit at law between himself
and another, that the land devised is sufficient
to pay debts, though such an admission may
release a part of the personalty, by the judg-
ment of a court, from any future liability at
If*
478
BUTRKMB COCBT OF T
I Uhitkd Dtateb.
1S8K
law for the debut of hU testalor? Why ahould
tt be that the value cf lands so deTised for the
pajment of debts, can only be aacertalacd
wben creditors are a party to the proceedlDgB:
wheo they havB no le^ coocerti in flxins the
price for which the executor may sell the laud?
and nhen, moreover, it it be necesHiu-y to oh-
lalo, aa It la in some cases, an order of a court
of equity to sell the land, the creditois need
Dot be inadc parties to the application. Their
claim Is upon the assets made by the sale of , the
land. It is true, creditors may, for cause, en-
join the executor from selling; or, upon his ap
plication to sell, in a case where the interven-
tion of a court of equity is anked to permit or
direct a sale, creditors may be Bllowed to make
themselves parties; but the difference between
these last positions and the executor's right to
■ell. and having sold, is all that there U between
the action of the executor being restrained by a
oourt of equity, and where hU power to sell
haa not been restrained and is executed.
Suppose In a case of a devise to sell land for
the pnyment of debts, as In the castt of Oeiirge
V. Oane, that tbo administrator had admitted
assets from the sale of the land, without stating
the amount, but sufficient lo pay debt«, ana
without slating the amount of the debts due
by the testator: could the court, in the face of
the admiSBion, have conjectured it might be in
prejudice of creditors, and upon such conject-
ure or apprehension, have given judgment
that It was in prejudice of creditors. Or sup-
pose the adminLutrator had, In his admission.
stated both the amount of the assets and of
debts, the former being larger than the latter.
would It not have given judgrnent that the
Dumumissioa had not been made in prejudice
of creditors, and have done so upon the ezec-
ntor's admissionT The courtcould not, in such
as iiaiie, liave given to the creditors any more
protection than lliey hod by the administrator's
admission; it could not have possessed itself of
47U*] the assets, or in any way *have directed
the distribution of Ihcm, It was powerless to
call upon the executor for a schedule of debts,
/ or upon the creditors to make an exhibition of
their claims. But it may tie said, the diOcr-
BDce in the case supposed, and that which ei-
itted. U, that in the flrst, the oseeto were in
hand, and in the other were to be made by a
■ale of the land. The difference makes nothmc
against the argument, for the value of the laud
can be as well ascertained by proof as it can
be by the executor's sale; and when he admits
the value lo be sufficient to pay debts, he does.
in truth, do no more than is done when he ad-
mila the existence of a sufficiency of personal BH-
teis, but unsold, to pay debts.
As between himself and anollier, his admis-
sion may surely bind him in that other's favor;
Be well m regard to assets to be made from land,
as In regard to personal assets un<lisposed of.
In the latter case, there Is as much a question
of the sufficiency of asiiels, as there is in the
case when assels are to be made by the sale of
land; and so far as creditors arc concerned, ia
a case of mnuumisston, the reason for not try-
ing the Issue between the petitioner and an ex-
ecutor, is as strong in an inquiry of a sufficic-ncy
of persona! assets as iuone of real assets. Aod
the court, in the case under remark, only ex-
cludes au inquiry into the value of the latter; i
200
and If It did mit Intend to do ao, then a manu-
mitted slave can never show that the manumis-
sion was not made in prejudice of creditors.
The court thought it was an issue lo the prej-
udice of creditore. as they were no party to the
proceeding, and lo protect whose intrest no one
appeared; and "thus the judgment of the
court, having once given effect to the manu-
mission, on the ground that effectsin the handa
of the heir should be applied to the payment of
the debts, the executor or administrator is ab-
solved from all responsibility, except as lo the
residue of the personalty, and the creditors
would bolefltoseek, through acourlof equity,
real assets which perhaps never had existence."
But the mistake is in Etating the land deviiied
to an executor to be sold for the payment of"
debts to be assets in the hsnde of the heir; and
that the Judgment between the then petitioners
and administrator, would have been coaclusive^
against creditors as well in equity as at law.
The assets were not legally in the hands of ihff
heir, nor would the judgment •have[*48<V
concluded the riKht of the creditors from show-
ing, in a proceeding in equity, to whit^h the-
manumitted slaves, the executors and all per-
sons Interested hod been made parties, thai ihu-
admission of the executor bad been made with-
out any foundation in fact, or in fraud or mis-
take; and upon showing either, in an entire re-
view of the adminislrauon, a court of equity
would set aside the judgment at law, ami de-
cree that the manumission had been maile In
prejudice of creditors, and subject the slaves lo
the payment of debts, either by sale for life or
for a lerm of years; according as the one or
the other might be requisite to pay the credit-
ors. Such a course would be in perfect har-
mony with the statute allowing maQumisaion.
to be made by will. They may he made to take-
effect at the death of the testator, but shall not
be effectual if done to the prejudice of credit*
ors. Upon whom does it lie to show it to have-
been done in prejudice of cralitoraf surely up-
on the creditors; or, the words of the sl^ilule,
" to take effect at the death of tlie testator."
can never be fulfilled in any case of manumiii-
sioo; If it can only lake effect after the manu-
mitted slaves have shown it bad not been done
In prejudice of creditors; or If, as a condition
prei;(Mleiit to tiffeclive msjiuminsion, Ihe slaves-
must carry executors, creditors and all inleresl-
ed in the real estate, into a court of equity, to
prove the manumission not to have been made
in prejudice of creditors.
But the case before us is dislinguiahabie from
that in Harris & Gill in other particulare
which make that case inapplicable. The first
difference id, that the record shows In thisca-sc
there were no creditors of the testatrix. Fran-
ces Edelin, at Ihe time the suit was broitglil iu
the Circuit Court. The only sum which could
theihbe charged upon the estate was the right
of retaining, which the executor bad, on BCciiunl
of his having overpaid beyond assets. He,
then, is the only creditor, by his own n<lmis-
sion; and when he admitted Ihe sufficiency of
real estate to pay himself, there was an eud of
all inquiry us to whtil was the value of the
land. There was nothing due to anyone else;
consequently, no one could be prejudiced ; and
tiie words in tlie statute, "in prejudice of cred-
ilors," cannot be construed lo apply to any-
18U
HABuaoK n Ai. T. Nixon.
atlber than t&e teaUtor^ sreditora «t th« time
of hfi de&tb, Koi such ■■ might becoms io for
ftpieral ehargei; not to taeh ai the executor
4St*] might make his creditori, 'virtute officii
mod mneli leu to defeat a manumlsBion In favor
of en exteutor, because he has careleMlj,
tltongb bona fide, paid debts bejond aaaeta.
Upon the whole, then, our opiniona are that,
hj the statute of Marjland (1TD6; ch. 67, sec.
13), manumisetoni of alavea by will and testa-
ment ma; be made to take enect at the death
of the testator; that the testator may devise or
charge hto real estate with the payment of
debts, to make the tnanumisaion effective, and
not in prejudice of creditors ; that the right to
freedom may be tried in a suit at law, against
tbe executor, at the instance of the manumitted
alaves; and that the executor may, in such suit,
admit the existence of a sufTicienrj' of real ~~
■eta or real estate, to pay the debts of bis i
tator; that a judgment at law in favor of slaves
manumitted by will, in a suit between them
«nd an executor, upon his admission of a suf-
fldency of real estate to pay creditors, may be
■et aside in equity, if such admission was made
without foundation in fact, or in fraud or n ~
take, upon the creditors' showing either, ii
proceeding in equity to which the manumitted
alaves, the executors, and all persons interested
have been made parties — in which there may
be a review of the entire administration of the
estate, of the conduct of the executor, aad that
of creditors in regard to the estate, and in re-
gard to the vigilance of the one in paying and
tif the others in pursuit of their debts.
That the words in this will, "and after my
debt* and funeml charges are paid, I devise
and bequeath as follows," amount to a charge
i^on the real estate, for the payment of debts.
That when a testator manumits his slaves
by will and testament, and it clearly appears to
have been bis intention that the manumission
■hall take place at all events; the manifest in-
tention, without express words, to charge the
real estate will charge the real estate for the
payment of debts, if there be not personal aa-
•ets enough, without the manumitted slaves, to
pay the debts of the testator.
That in such a case, the oreditorw of the
testator must look to the real estate for the
pajment of debts which may remain unpaid
after the personal assets, exclusive of the man-
umitted slaves, have been exhausted; and that
4S3*] they must pursue their 'claims in equi-
ty, or according to the statutes of Maryland,
■objecting real estate to the payment of debts,
to make their debts out of the land.
That when an executor permits manumitted
■laves to go at large and free, under a manu-
mission to take effect at the death of the tes-
tator, he cannot recall such assent by his own
act; DOT can it be revoked under the order of
a a orphan 'a court in Maryland for the sale of
all the personal estate of a testator; that court
not having Jurisdiction of the question of man-
That in this ease, it being admitted that the
testatrix left real estate to an amount in value
more than sufficient to pay her debts, without
the sale of the negroes emancipated by the will,
the defendants in error are entitled to freedom.
Tb« judgment *t the Circuit Court is tbere-
foc* affirmed
This eause came on to ha heard on the tran-
script of the record from the Circuit Court of
the United States for the District of Columbia,
holden in and for the County of Wsshii^jtoii,
and was argued by counsel; on consideratioB
whereof, it is ordered and adjudged by this
court that the judgment of thi " ' " "'
Court in this eause be, and the ■
affirmed with coats.
[ Circ
B is hereby
'QEORQE HARRISON, Thomas H. [•48»
Whits «t al.. Appellants,
Witl—pleadinga— every bill to contain suffleieni
avermeot of fact to sustain cause of plaintiS
— construction of will — parties— practice.
A tilll was died la the Circuit Coort of the Vttlt-
States for the Dlncrlct of Pennsylvania, statlDS
• —: MHtlhias Asnden. a cHUen o( tenniTl-
-' "'s will, dated 1 .-.-■- - -i -
vania, made b
Bth of Deceml
if tbe complalnaot, nbo asserts bim-
Orest BrLtnlQ It „ _.
to England, under a hellet that Great Britain
wonld soon prevail In the contpst ; tbat he sabae-
qu(ntl7 came back to the United States, and Invest-
ed large sums In go* ernment stocks. Bat, wh^ttier
he Bfterwsrds went back to Knuland as Dis borne
or onlr for tbe purpose of luperlD ten dins bis prop-
erty ; and wbetber the testator did. In tact, ctiange
hla d
□Idle, the e
r (sa
, by tbe tacts) _
that tb« testator, when In I^nElind. considered
blmsell as an sllea. snd be d!ed In King Street,
Holbom, London. That letters tcstamenlsry were
taken ont In EDglsnd, and the will was proved
there, and proceedlnss were Inatltuled In Englsnfl
h* a person clalmlne to be tbe holr-at-law. Tarlons
nceedlngs took place Id the Circalt Court Of
bcnnsy
IDlS.
reterence was made to a master
ate the beira anil oeit ot kin ot
asde by blm, which was
md the !« upon s Hnal di'cree
.. John Aspden, of Lancashire,
le at tbe clBlmanta be/ore the master.
NciTR. — As to law of place of domicile of
>nd the
If Georeetown. G I-et. E18,
lea to the record csn be heard on
r error, >ee nnte to Owlncs v, Kln-
„ M. Mfe »r,ri ihe tolIowlSjt cages ;
rnnnor. v Peiifb. 18 How. SSI ; Payne v. fillls, 20
lix-parle lioiT, S How. lOS ; Uavenport
IS Uow. 1*2 : L«rd V. Veaila, 8 ifow.
201.
SOI
Sdfbbui Oorai or tbx Unim Statbo.
Bt rai Codit: Tbe bill eontalni no aTcnnent
•f the actnil domtcUe ot tbe test&ror it the time of
lb* mikLuK ot bl9 hII, or nl tbe t^oie oC lil> dralh,
or at any Intermediate iierlod ; Dor dops tbe answer
contHln .my svermenls of domicile nblrb aupply
■■ - ' " '■ Id tbe bill, even If It coald ao flo ; but
point ot la*
lofflelcDt
Ererr bill must coDtala In Use
The pro of a must be accordlnf to the allegations i
itIoaB,''tfe™o'rf cann^"judlelal'
. la ■ Kround for dei-t!lOD i for tl
pleadlnea do not put "' " '" "'"
within
484'
the mat I
condned to personalty
And tbe court are colic
will, and ■
of tbe bill la concerned, la eiclualrelT
lonullf hequ^athrd bj tbut nlll.
Id In mi <'>^peclal
The laneuage ot villi la not of universal I
Ullon, having the same Imiiort In all count
ander all clrcumslanccH. Tbe; ari! snpf
api-ak tbe aenw of the lestatnr according ii
eelTcd IB'VB and uoaeea of tbe countn uBi
doDilcileiJ ' ■■ - — ■ -* "-
,.'f.t;
Dibliig
: he la
which re-
_.., ,. ^cluslOD. In reyarJ __
peraoDHlt]', In an especial manner, tbe Inn of tbe
place of the teatatora domicile aoTerns iht- dlatcl-
butlon thereof; unless It is manifest that the tea-
Utor bad the laws of some oihet country In view.
No one can doubt If a ttgtalor, born and doiul-
elled Id England during hla life, by his will Ki'ra
biB personal eatate to bis bclr-at-lDw, Ihat tbe
descrlptlo pcrsonie would ba<e refeicDie to and be
■overned by the imnort of
ot the - - ■■ ■"
The Import of their
Idled In Frnuce, In LouiElana, TcuDSflvj
A win ot pprsonajtj apeak
ertalhed whe
( the appllca
was hla doi
e DO otbdr
lion. To r
nl. It must
The bill in thJa case Kliouid allese the material
facta upon vbich tbe pluIutilT'B title depends, iihd
the final Judgment of the court must be given, ao
as to put tbtm In contestation In a proper and rea-
ular manni-r ; and the court cannot dlnpoee uf ihia
domicile waa, at the time of his making ot hla ivlll
and at the time of his death ; and there oiigbl to be
Hullnlile avErmenis In tbe UN to put those matters
In issue. The case ought to be remanded to the
Circuit Court for ttie t
■mendments made In re
at the time of making t:
bla death nod at tbe Intermediate penoa ii any
change taali place.
■■ — ' — -aade to the court, and from pro.
U™ moi
d'CocjIT: As tba cause la to go back
- ■ .. , dloES, and ■ •■ '
legation.
luxe for tlint
No pemons
be record oaii
eal or writ ol
ought to be ^t I
aylvaria.
Matthias Aspdeti, on the 0th day of Decem-
ber, 1701, niude hia will, with tha codicils an-
nexed tlicrcto, BB followa:
48B»] •■■ThcBe are to certify, that 1 do
hereby annul and revoke •!! idj former willa,
glytng and brqiieathing my eatate, real and
peraonat, to my heir-at-law, firat paying all my
SOS
juet debt* and funeral ospensea, and the fol-
loning legacies, first, to each of the children ol
my half .brother, Benjamin Hartley, deceased,
that may be alive at my death, the auu of lOti
pounds to each, Pennsylvania currency; and to
my half-siBter Bcraheba Zane, wife of Elnathan
Zane, the sum of 400 pounds Pennsylvania cur-
rency, both of the above living or did live at or
near Haddonfleld; and to my half-brother Roger
Hartley, living at present in Lancaster County,
the sum of 300 pounds of the like curreitey.
Witness my hand, this Stb day of Decembo',
17D1, Philadclphie. Matthias Aspdcn.
"Lest any question should arise about tbe
legitimacy of my birth. It ia my will, that my
estate, real and personal, should go to the party
who would be my lawful heir, in case there
might ariae any doubts on that head. It ia
Hrmly believed by, from the best informatioa,
that my birth waa after marriage.
"Philadelphie, December 6th, ITQL
' I do further give 100 pounda Penti^rlvania
currency, to each ot the children of ray ilec-eased
half-sister Ann Henchman, that may be living
at my death.
"December 6th, 1791.
"Note, my property on England ia as fol-
lows: 12,500 pounda in the four per cent, stock;
3,090 pounda in the five per cent, stock; 1,BOO
pounds in the three per cent, stock."
Indorsenent. "The last will of Matthfai
Aapdcn. I do hereby appoint my friends ttr.
George Roberts and Mr, Abraham Lidden, with
the president of the old liank at the time being
to be my executora to thia my last will.
"Matthias Aspden."
At April sessions, 1821, of the Circuit Court
of the Kaatern District of Pennsylvania, the fol-
lowing bill was filed:
"Samuel Packer, a citiien of the State of
New Jersey, v. Henry Nixon, Esquire, a citiieo
of the State of Pennsylvania, executor of the
last will and testament of Matthias Aspden, Es-
quire, late a citizen of the aame State. In
'To the honourable the Judges of the Circuit
Court of the *Uaited States of the [*4B«
Third Circuit, in and for the Eaatem Diatrit:t
of Pennsylvania.
"Humbly complaining, showeth unto yoiir
honors, your orator, Samuel Packer, a citizen
of the State of New Jersey, that on tlic Gtli day
of December, in the year of our Lord 1701, one
Matthias Aspden, Esquire, a citizen of tlie
^tate of Pennsylvania, made and executed his
last will and testament, bearing date tbe same
day and year, wherein and wiierrby he pave
and bequeathed all his estate, reai and pi'rKoiiul,
to hia hcir.at-law; and of the said will Di>p'<'nt-
ed his friends, George Roberts, Abraliam Lid-
den, and the president of the old bank at the
time bping, executors, as by the said will, a true
copy whereof ia to this bill annexed, and which
your orator praya may be taken as part there-
of, will more fully appear; after which, to wit,
on the day of August, in the year of otir
Lord 1624, the aaid Matthiaa Aspden departed
this life, not having altered, cancelled or ra-
yoked his said will, and the said George Rob-
erts and Abraiiam Lidden being then deceased,
and Henry Nixon, Esquire, a citisen of the
State of Pennsylvania, being then preaident
of the Bank <rf North America, which tiank tbe
ISW
IK BT AL. T. MlXOIf.
t— t*ta> BMot BDA latendcd by tba deseriptlon
of th* old bulk, the eftid Henr; Nixon uused
tke Mud will to b« dulj proved Rcrording to the
Iftwa of PennijIvBiiit., sjid having received let-
ters teatunentarj thereon, took upon himself
tbe harden of the exoeution thereof, And bath
pocaesaed himMlf of all the goodi, chattels and
other pcnonal estate of the said testator, to a
rerf larira amount. And jour orator express];
Aarges, that he is the true and only heir-at-law
of the said Matthias Aepden, and that no olher
peraon than bimaelf is entitled to elalm or re-
ceive the benefit of the said devise and bequest.
Aod he hath repeatedly applied to the said
Hcnrj Nizon to have an Bcco'jnt of all end
■ingular the personal estate of the said Matthias
Aspdcn, and where and how the same is situ-
ated, and what is tbe true and exact amount
tltereof, and to have the amount thereof paid to
him, deducting therefrom the just and res
able charges of the said executor. But not ,
It (a, maf it please Tour honors, that the svd
Heni7 Nixon, conibining and confederating
with others, to your onitor unknown, whose
names, when discovered, he prays leave to in-
•ert with apt words to charge them as parties,
4S7*] denies that your orator is 'the beir-at-
Uw of said Matthias Aspden, or that be is in
any way entitled to the benefit of any of the
testamentary dispositions of the said Matthias
Aspden, end refuse to render him any account
af the aasets, and to pay him any part thereof.
In tender consideration whereof, and foras-
much as your orator cannot bare plain, ad-
equate, and complete remedy at taw, to the end
thereof that the said Henry Nixon and his con-
federates, when discovered, on their oaths or af-
flnnatioTis, full, direct, and tnie answers may
make to all and singular the matters and things
hereinbefore set forth, aa if they bad been par-
Uenlarly interrogBted thereon; and that the said
H^irj Nixon may render and set forth a just
and true account of all and ningular tbe per-
•anal estate of the said Hstthios Aspden, and
where and bow tbe same is situate, and wheth-
er there are any and what debts due, or claimed
to be due therefrom, and may be decreed to pay
to jour orator the balance of the said moneys in
Ua hands belon^ng to the si^d estate, to which
your orator is justly entitled, and your orator
maj hare such further relief in the premises as
la eimaistent with equity and good coascience,
aad to this honorable court shall seem meet."
To this bill the executor filed an answer as
"The answer of Henry Nixon, the defendant,
to the bill of complaint of Samuel Parker, com-
plainant.
"This defendant lays that he believes and
admits that Matthias Aspden, the testator in the
aaid UIl named, at Philadelphia, duly made
and executed his last will and testament in
old bank, where tbe same were found after hit
decease. And the defendant believes It to ha
true that the scid testator departed 'tbis ['499
life on or about the (Kb Jay of August, 1B24, iD
the city of Jjondon, without having revoked or
altered his said will and codicils. And the de-
fendant further answering, says that George
Boberts and Abraham Liddi-n, in the said will
respectively named, both died in the lifetime
of the said testator; that tbe defendant, at the
time of the death of said testator, was the pres-
ident of tbe Bank of North America, at Thila-
dclphia. known as the old bank. And the de-
fendant admits it to be true, that soon after the
death of the said testator, to wit, on the IBth
day of November, 1924, this defendant duly
proved the said will and codicils, in the office
of the register for the probate of wilta and
granting letti'rs of administration for the city
and county of Phitadelpliia, and received letters
testamentary thereon. And that the defendant
also duly proved the said will and codicils in
the Prerogative Court of Canterbury, in Eng-
land, and obtained probate thereto from that
court. And this defendant admits it to be true
that, OS executor aa aforesaid, he has possesaed
himself of all the personal estate and elTects of
the said testator in the United States, or of so
much thereof as has come to his knowledge; a
true account of which is In the schedule hereto
nnnexed. And this defendant has paid the
charges of proving the said will at Philadelphia,
and other charges incident thereto, and six of
the legHi'icB, the others having not yet been
claimed, bequeathed by the said will, a true ac-
count of which payments is in the schedule
hereto annexed, and that as executor, other
charges must be incurred in managing and set-
tling the estate, the amount of which cannot
now be ascertained; and that this defendant,
OS executor, will be entitled to a commission
for his services. And tbis defendant farther
answering, says that he believes it to be true
that tbe siiJ testator was, at the time of his
death (among other descriptions of property),
possessed of property in the English funds,
that is to say, 4.000 pounds bank stoek; 10,000
pounds three per cent, consolidated bank annu-
'" m; 12,600 pounds reduced three and a half per
it. bank annuities; and 3,GO0 pounds, new
four per cent, bank annuities; and that tbe said
testator, also, was possessed of E^ast India stock,
and also of South Sea stock to a conaiderahle
int, that is to say. 3,000 pounds East India
such will and codicils are in the words and tlg-
nrea, or to th' pi'rpart and rffcct in tbe paper
annexed to the said bill set forth; but for greater
certainty as to the date and contvtits of said will
aod codicils, this defendant craves leave to rpfrr
thereto. And this defendant sayi that the said
testator drposited bis said wilt and codicils for
safe custody in the cashier's vault of the Tlnnk
of Nortb AnHTiea, at Philadelphia, known as the
• lb Bd.
tator died poFiaessed of other pprsonal property
.0 a considerable amount, and particularly of
,he sum of TflO pounds, 3 shillings, S pence, in
be hands of his hankers. Messrs. iloare, of X^n-
Ion; but that no part of the property of tbe
laid testator, except that in the United States
of America, aa before stated, has come to the
hands or poBsession of this defendant. That tbe
hole of the property of the said testator in
Eng'nnd is cbimcd by John Anpien, of London,
as entitled thereto, under the devise of the said
tpxtelor. »n IMr heir-st-law: and that (he said
John Aspden has filed a bill In the Court of
Cliancery in England against this defendant, as
executor of tbe said testntor — and has, by the
injun.'tion of the said court, restrained and pre-
vented this defendant and hi* agenta from nh-
tos
Sopuou CouBT or tbk Ukiis) Statu.
nlon of any part of the pn>p«rt;
■eaaed, farther than that his alCorneye. S. Wil.
liftlni and J. Sterling, received the sum of 300
pounds, being one half-year'* dividend on 3,004
pounds. East India, stock belonging to thi
teatator. That the expenses of proving the wil
of the laid testator in England amounted ti
71S pound! 17 shilling* 10 pence, to pay which
In rart the laid sum of 300 pound* wm applied
by Mesara. Williams A, Sterling, and the residue
41S pounds 17 shillinga 10 pence, was paid out
of the sum is the hand* of Mesar*. Hoare, the
testator'* bankers. The eaid suit in chancery,
by the said John Aspden, is yet pending and
undetermined. This defendant ha* annexed
to this, hi* answer, a copy of the bill filed
by *aiil John Aepden. And this defendant,
farther anewering, sayi, he doe* not know, and
i* unable to answer, from his belief or other-
wile, whether the said testator left the com-
plainant hi* heir-at-law, or whom be left bis
beir-at-law. But this defendant, farther answer-
ing, says that the said John Aspden, of London,
claims to be heir-at-law ; and as such, entitled to
the residue of the said testator's property; and
that there are many persons residing in the
United States of America who claim to be next
of kin to tbe said testator, and as such, to be
entitled to distributive ihares of tbe est ate -
That this defendant i* not abte, from hi* own
knowledge, to name alt the persons who so
claim to be next of kin, but that he has
nexed to this his answer, a schedule, which he
prays may be taken as pert of his answer, con
400*] taining the *namea of some of the per-
•ons, so claiming to be next of kin, and tbi
manner in which they, or some of tbetn, have
alleged to this defendant they are connected
with the said testator. This defendant, further
answering, aays tbat three suits have been in-
stituted against him, as executor of the said
testator, in the District Court of the City and
County of Philadelpbia, by persona claiming to
be next of kin to tbe said testator, to wit, one
to December Term, 1828, by Stacy Kirkbridge
and Sarah, his wife, late Sarah Hammett; an-
other to the same term, by James Packer; and
the third to September Term, 1827. by Job
Packer; which suits are still pending and unde-
termined. And this defendant, further answer-
ing, says that he can neither admit nor deny
that tbe said testator was a citizen of Pennsyl-
vania, as alleged In the said bill. That from
Information, he believe* that the said Matthias
Aspden, tlie testator, was born in or about the
year 1766, at Philadelphia, then being the place
of residence of bis parents; that he continued
to reside there, and afterwards wan engaged
in buEinees at Pbiladelpliia as a merchant, with
some success, before he was twenty-ooe years
of age- Upon the breaking out of the war be-
tween Great Britain and America, in the year
ilT76, or some time in that year, being still a
minor, he went to England, with what view, this
defendant, from hi* own knowledge, i* not able
to (ay; but he believe* that he went with an
Impression that the power of Great Britain
-BitMt soon prevail in putting down the
ance made in America. That the said ti
■ubaeqnently came aeveral times to the United
States of America, sod inveated large sums
there Id the public or government atoclc,.or,in
»0t
other securitiea; that he made bis will and tba
codicils thereto, at Philadelphia, the place of his
birth, and deposited them in the bank tbera;
but whether after so returning to the Unit«A
States of America, the testator went back to
Kngland aa his home, or only for the purpose
of superintending his property; and whether
the testator did. In fact, change his domicile,
thia defendant (save and except a* appear*
by the facts) doth not know, and is unabl*
to answer. Bat this defendant believes tbat
the said testator, when In England, considered
himself aa an alien, and as such, claimed to
have returned tbe tax taken from his dividends
while be was absent from England, accordirig
to the provisions of the Maw exempting [*49t
aliens from the tax if not resident in Eoglancl.
That he died in King Street, Holbom, Londtm.
And this defendant aays that he submits to the
judgment of tbe court, whether upon the true
construction of the said will of tbe said testator,
the next of kin of the said testator are entitled,
under the same, to take the residue of the per-
sonal estate and effects of the said testator, or
whether the complainant, if be be the heir-at-
law, and if not, whether any other pernon aa
heir-at-law of the said testator, is entitled to
take the same under the said will as such heir-
at-law. And this defendant submits to act as
this honorable court shall direct, being indem-
nilied and paid hi* costs, charges and expenses
therein. And this defendant denies all combi-
nation and confederacy with which he is
charged in and by tbe said bill, without thIa,
that, that, etc. Henry N'ixon.
Petitions were filed in the Circuit Cu'irt hj
persons who claimed to liave distviliution
among tbem of the estate of the testator, as
the party contemplated by the will; each peti-
tion setting forth the relationship between the
person* presenting the same and the testator,
and praying to be admitted as parties to the
suit, for the purpose of claiming the fund ad-
mitted by the executor to be in his hands; and
that the court would direct inquiries to be made
a* to their respective claims. George Harrison
and the other appellants were among those
who filed petitions.
Upon the reading and filing of the petitions
of George Harrison, the court made an order,
according to the prayer of the same. Job
Packer and John Zane were, by order of the
court, on their application, made defendants;
and Isaac Zane was entered as one of the com-
plainants in the case. The record contained no
order or action of the court on the other peti-
tions, except an entry in reference to each pe-
tition, "read and filed," or "filed-"
The Circuit Court ordered that it be referred
to a master to examine and itate the next o(
kin of the testator, tintthia* A*pden, and com-
missions were ordered to take the depositions
of distant witnesBCs.
After the coming In of the master'* report,
which was 'contained a list of the [*4S9
'irs and kindred of tbe whole and half blood
of Matthias Aspden tbe testator, and in whfeb
ts that John Aspden waa "helr-st-
law," tbe Circuit Court made tba fal-
ling decree:
And now, this SOth day of December, A.
D. IS33, this cause coming on to be heard en
the bill, -Muwar, jwtitiona, azhlUts, proofs
lN4er* ».
18U
Uahbihon et u_ t. Nixon.
aad. inut«*a repCHt, and tbe Mventl parties
baving been fully hoard by tbeir counael end
UiB «wirt having UJteu time to consider of the
■ame till thia day, do order, adjudge and decree
tkat th« defendant Henry Nixon, lurviving eZ'
oeutor of Matthias Aapden, deceaaed, do ac-
count for, pay over, tranefer and deliTer, to
Jtdui Aapden, of Lancashire, in England, one
nt tha aaid partiea, the heir-at-law of tlie aaid
Ifatthiai Aapden, the entire balance of the
peraonal estate of the aaid Matthias Aapden
whieh haa eome to his hands to be adminis-
tend, after paying the debts and legacies of
tha aaid Mattliiaa Xapden, and the costa of this
anit (which are hereby ordered to be paid out
of tlie said fund). And the court do further
order, adjudge and decree, that the bill and
petitiona, so far as they relate to the other eom-
plainaata and petitions, who are claimants be-
fore the court, and all other elarmanta before
the ooDrt, however appearing, be diamisaed with-
out coata.
"Aa to all parties who are claimanta before
the court by bill, petition or otherwise, their
compleint, petition, and proceedings urn dis-
missed without costs.'"
FT«m this decree George Harrison and
Tbomaa H. White, Ann Emily Bronson, Sliaa-
bcth White Bronson, Hetta Atwater Bronson,
and William White Bronson, minors, by their
guardian the said Thomaa H. White, Uary
Harriaon, a minor by her guardian Elizabeth
Harriaoa ; Esther MTherson, and Elizabeth
VPherson, children of Elizabeth M'Pherson,
deceased; John Zane and Isaae Zane, proae-
entcd an appeal to this court.
Before the argument of the case, Mr. James
S. Sniitb stated to the court that be, with Mr.
Cose, appeared before the court either as amici
enrie, or as the court would permit them to
appear, in t>ehalf of the heirs of John Aspden,
4ftS*] late of Old Street, •London, who claim
to be the heirs-at-law of Matthlaa Aapden the
teatator; and who had no notice of the pro-
eecdinga in the Circuit Court of Fennaylvania.
It ia the wish of the counsel for these claim-
ants to be permitted to ahow irregularities in
the noceedings, and to have the case remanded
to the Circuit Court, in order that they may
be allowed to come in and aubstantlate their
daima to the whole estate, as the heir-at-law.
J^n Aspden, whose heiia they represent, pros-
ecuted a claim to the eatate of the testator,
bj a UU in the Court of Chancery in England,
which bill is referred to, and annexed to the
answer of the executor. Sled in the Circuit
Court, and forms part of the record now be-
fore thia court.
Mr. Sergeant, for the appellees, objected-
The beirs of John Aspdsn made an applica-
tion to the Oreuit Court for a bill of review,
for tbe purpose of obtaining admission into
the case. The court refused to give them the
ptfmisaion asked, and they then obtained a
dialton from the Orphan's Court of the Coun-
ty ^ ntiladelphia, directed to Henry Nixon,
as execntor of Matthias Aspden, returnable on
■he 16th of January, 1S35, four days after the
. Ib UK ApDcndlx,
4o. 3, will be founi:
_ __ Apoendlx, 1 .. _. . .. __
a at the Circuit Court of the Eastern .
iTlet of rrnnivlTanla In this ease, datlvsrtd hj K
meeting of this courtt tbua seeking to maintala
thair claims in that court. They have since
tiled an original bill in the Qrcuit Court of
Pennsylvania against the executor,
Ur. Cose, in support of the application. The
case now before tbe court is that of a bill
filed by Samuel Parker, asserting himself to
be the heir-at-law of the testator, ex-parte
materna, against the executor. These were
the original parties to the proceedings; other
persons came in by petition, whiuh petitions
uero liled, but no ami^iidinents were made to
the bill; and on tbe llling of some of the pe-
titions no order was made by the Circuit Court,
directing tbe petiLionera to be admitted as par-
ties, The appeal from the Circuit Court is not
made by Samuel Packer, who was the only
party who could appeal.
The counael who present this application de-
sire that the court will look at the record; and
they trust that the court, seeing its imperfec-
tions, will remand t&e case to the Circuit Court.
Tbe proper parties are not before the court.
At the last aessions of this court, the Chesa-
peake and Ohio *Canal Company were [*494
permitted to appear in the cnae of Mumma v.
Tlie Potomac Company, aud take upon them-
selves the whole argument of the cose. 8
Peters, 281.
Mr. .Justice Story stated that it appesred by
the charter of the ChtsMpeake and Ohio Canal
Company that the I'oLumac Company had
Iwen merged in tbe former company, add had
vested in them all their property, and were
subjected to the responsibilities of the Potomoe
Company.
Mr. Chief Justice HaxshaU.
The only parties the court can know are
those in the record. They cannot permit
counsel who represent parties who may think
theinselvea interested, not in the record, to
come in and interfere. Let the argument pro-
ceed, and if the court see that the proper
parties are not before the court, they will act
aa may be reijuire^.
Mr. Ingcrsoli, representing the executor,
handed to the court the proceedings of the Cir-
cuit Court of the District of Pennsylvania, on
a bill of review filed by the heirs of John Asp-
den, of Old Street, I^indon, against the ex-
ecutor, and the citation issued to the executor
at their instance, in the Oiphan's Court of the
County of Philadelphia.
At a subsequent day of the term, when the
luse came on for argument upon the Sierits,
question was presented by Mr. WehAer, who,
ith Mr. Tiighman and Mr. Newbold, was
the counsel for ttie appellants; whether the bill
taken by itself, or in connnution with the an-
swer, contained sufficient matter upon which
the court could proceed, and finally dispose of
-' - --. It was submitted that the bill con-
averment of the actual domicile of
the testator, at the time he made his will, or at
any Intermediate period, before, or at his
death.' The court directed this qMostion to be
argued, before the argument should proceed
. the m..rils.
I from the opinion of the rlrcnit Tourl of PoDOiyl-
vanlB. In this case, which are Inserted as showlaa
tbe view of Ibe court oo the eSccI of tbe domi-
cile of Ualtblaa Aspdeu in the coaatructlon of tbe
Supuin CoDBT or Tm UmnD Statm.
its*] "Mr. W. Kawle, Jun,, Tor John Aspden.
The motion to remand thU cause te founded
on ft tuggestion that its dcciBion will turn upon
the question of the testator's domicile; and
that thii fact, not being averred in the plead-
ings, the court cannot decide it. If it can be
thoirn, either that the fact is not material, or
that IB is sufficiently averred, the motion can-
not be Buatoined.
In the court below, the question of domicile,
though it was made a point in the cause, was
little relied upon. The argument went mainlj
on the ground that the law of England and
that of Pennsj'lvania, as to the construction of
the will in question, was the same; and if this
position be correct, it is manifest that the ques-
tion of domicile ia wholly immaterial. The
eatablishment of this position, however, belongs
to the main argument. To diecusa the princi.
pal question In the cause, upon a preliminary
question, whether or not the cause shall come
on, would derange the whole order of the ar.
gumeut, and place the appellee under great
disadvantages. The proper course seema to be,
for the court to hear the cause argued; and if
the decree of the Circuit Court can be affirmed
without touching the question of do:
will be unnecessary to consider whether the
pleadings raise tliat question or not. If,
the other hand, it be found to Ijc material, and
the record docs not present it properly to thi
court, it will be time enough to remand thi
cause tn order to have the pleading amended.
But the question of domicile, if it be mate-
rial, is before the court. The rules of equity
pleading, though they call for certainty and
precision to a rcasonal>te extent, are not so rig-
orous in their requirements as those which
govern the proceedings of courts of law. From
the nature and objects of its jurisdiction, the
rules of a court of chancery must possess a
more liberal character. 2 Madd. Ch. 16B; Coop.
Eq. PI. b. 340.
Testing the record of this cause by the rulea
of pleading in ei]uity, fairly construed, the
question of domicile is distinctly raised. The
proper place for tlie averment of such a fact is
the bill; hut if that be defective, the defect
may be cured by the subsequent pleading,
a material fact be not averred in the bill, it
not a good bill. To constitute a good bill,
muat Bet forth such a case as will, upon its face,
•ntitle the complainant to a decree in his favor.
4*e*] He must state his title 'in such a man-
ner as to give the court to understand the char-
acter In which he claims, and the nature and
extent of his interest. Mitf. 41, 42. 156; 2
Madd. 168; Coop. 6, 0, 7. If, however, these
mattera b« stated in general terms, it is
■ufficient. All the subordinate facts in the avi-
dence intended to be given, need not be stated.
Every subordinate fact is substantially averred
by the averment of a general fact, which em-
braces tlu'm. If the bill, on its face, shows an
equity in the complainant; if it exhibit him in
a cliaracter possessing a right to sue, and hav-
ing an interest which he has a right to claim;
it la a good bill, nnd the defendant must plead
to It, or answer it. If it be defective, a de-
murrer may at once be opposed to it. Mitf. 13;
Coop, log, I IB.
Tlie criterion of the Bounilness of a bill 1« its
enpacity to bear the teat of a demurrat. B) '
■••
thta test let the bill In tMa eaae be tried. It
sets out the will of the testator, etc., and aver*
that the complainant is his heir-at-law, within
the meaning of the will, and, an such, entitled
to the property disposed of by it. It does not
set out the details of his title- It does not say
whether he is heir by the law of England or
by that of Pennsylvania, nor doea it state how
he ia heir, ao as to show under which law ha
claimed; and It would have been highly impru-
dent if he had done so. If he had stated hia
title in such a manner as to show that hb
claimed under the law of England alone, or un-
der that of Pennsylvania alone, he might have
been confined to proof of his titie as stated; but
by aaserting his claim as heir-at-law generally,
he may show that he is so by any law wbicli
lay gove
If the 1
a the c
law of England and that of Penusyl-
be the same, it is clear that it is of do
consequence where the domicile was- If, <m
the other hand, he was the heir-at-law intended
by the will, only because the testator's domicile
was in England, then the fact of domicile waa
a subordinate fact — one of the constituent parts
of the character of heir, the averment of which
is embraced by the averment of the general
fact of his being the heir-at-law described by
the testator, when he avera that he ia the
heir, he avers all the facts which make him ao.
The whole embraces all the parts.
Applying to this bill the test of a demurrer,
does It show *title in the complainant! [*4»T
If it had been demurred to, what would have
been the resultl The will gives the estate of
the testator to bis heir-at-law; the plaintiff
avers that he is the testator's bcir-at-law ; the
demurrer admits that he is so: and, aa a neces-
sary consequence, the decree must be in his
favor; or the defendant must plead or anawer.
The fact of domicile, therefore, if it be mate-
rial, Is substantially averred in the bill.
But If the hill be defective, it Is cured by the
answer; which distinctly presents to the court
the question of domicile. An answer not only
meets the case set forth by tfas bill, but may
set forth new matter essential to the defend-
ant's cose, either to add to or qualify the caso
exhibited by the bill, or to make out a, new and
independent case for himself. If the new facta
stated in the answer are denied by the plain-
tiff's replication, they are put in issue; if they
are not denied, they are submitted to the court,
by whom their legal effect is determliie«L
Mitf. IB, 310, 314; Cowp. 324; 2 Maddock,
334. If, then, facts necessary to make out the
plaintifl^B case are not found in the bill, but
the defendant introduces them into the anawer,
and Bubmita the whole matter to the court, it i>
regularly before them.
This rule has a peculiar application to a suit
against a trustee, such aa the defendant in thi*
cause. Mitf. 11. In the preaent inst&nc*
the whole matter is presented by the anawer.
The defendant answers what he considera the
interrogatories propounded by the bill. Htt
docs not aver that the testator's domicile ir»a
tither in England or Pennsylvania, but 1m
itates distinctly all the facts within hia knowl-
:dge upon which the question of domicila de-
pends; and being incapable of drairine tbo
conclusion of law from the facts, be ■ubniitB
the deciaioa of ttte queaUon to the ooiirt, to
IlAUBiaOH ET AL T. NaOH.
whom it properly belongs. If lie h.id answered
atherwUe, lie must liave dune ao with great
lAtilude of conBcience; for how could he under-
take tA stvear to m, conclusion of latrT
The reason of the taw is its life. The reason
whj Bverments are required U, that the parties
nU7 be appriaed of what thej are to meet, and
to prevent surprise. Coop. 5, 7. It, theilj
the plaintiff omits to atate his case In auch a
maimer as to appraise his adveruary of a mate-
rial fact in diepute; and the defendant shows,
4SS*J not onlf bj his answer, but bf his '
denoe (bat be is full; aware of it, how Ci
be alleged tliat he is taktn bj surprise! and
bow can the court be at a loss for the means of
deciding the question rajaed by it I After such
an answer, no reasonable objection could be
made to any evidence on the subject of domi-
cile offered by the plaintiff; for tlie queation
having been raised by the answer, it not by the
bill, either pi\Tty was at liberty to give his
proofs in relation to it. Neither party could
object to the evidence for want of an averment;
but the answer to the present motion derivei
ndditional force from the circumstance that
not only no objection «'aa made to evid
offered by the plaintiff, but the real defendants
in the cause, by whom the present motion is
made, themselves gave the only evidence that
was given on the subject of the testator's domi-
cile. The parties wctit to a hparing upon that
evidence, and the court passed upon it- Can
it then be tolerated that the party who raised
tbe question, who gave alt the evidence he
could collect in reference to it, who went to a
hearing upon it. and bad a decree against him,
shall, in an appellate court, move to remand
the cause for want of a technical averment in
the biUI To permit him to do bo would be to
tacriAca reason and justice to the merest and
mose unsubstantial form. It would be vain to
Bay that courts of equity act on the broad prin-
dpIcB of justice, and that rules are devised as
instruments for the promotion of its ends. To
Ei.Dt the present motion, the court must go
yond n eouit of law in its adherence to tecn-
y.T. Tilghman, for the appellants. It is the
wish of all the parties interested in this case
that all the questions involved in it shall be
fully presented, and a full discussion of them
take place, before this court shall decide upon
the interests affected by these questions. To
the executor this Is most important for his pro-
lection. But a decree of this court, fn the
yi«tent state of the pleadings, will not be a final
termination of the controversy.
The fact of the domicile of Matthias Aspden,
does not appear in the pleadings, or on the evi-
^nce in the case. It is not averred in the bill,
Dor ia it brought forward in the answer. The
bill allege! that the will was made by a citizen
of Pennsylvania: the answer admits this, and
4»»*] that the testator died in 'London.
Neither the assertion of citizenship or the ad-
miaaion of the place of death, puts forth the
fact of domicile.
The fact of the testator's domicile has always
been considered as most important in the case;
whether in England, or in Pennsylvania, will,
Es the appellants believe, have a positive and
ueriaive influence on the rights of the claim-
ante. If the domidU is now conceded by the
appellees to have been ta Pennsylvania, the ap-
pellants are ready to proceed in the argument
of alt the other questions in this cause.
In England, proceedings to establish the
claims of certain persons who live there were
proceedings were dismissed on the ground that
the domicile of the testator was in America; and
the whole ot the questions ia the ease, and all
the claims of those who made claims were prop-
erly to be litigated in pGnnsylvania.
The executor lias not undertaken to repre-
sent the interests of anyone, but he stands in-
dependent. He asks that the cose sholl be to
disposed of tliat he shall he protected from all
further claims. If the record shall be certiGcd
after the case shall be decided, without con-
taining an explicit averment of domldle, and
that the fact of domicile was not imjuireJ info,
it will not appear that the fact of domicile ia de-
cided. This would expose the executor to a
claim in another State, resting or asserted to
rest on the domicile, and claimed to be essi-ntiul
to the full decision of the right of parties un-
der the will.
It is not the purpose of the counsel for thu
appellants to refer the court to tbc elementary
rules on this point; as it is conceded by tho
counsel for the appellees that the allegation of
domicile must appear in the pleadings. The
only queation therefore is, does this appearl or
waa it BO made as that it was investigated and
decided by the Circuit Court!
It is known to the court that there ia another
party claiming the whole of the property of
the testator, and who is not in the procecdingH
before the Circuit Court, lie is a formidable
party, on the ptinciplcs decided in the Circuit
Court. This party was, in the opinion of thiit
court, on a bill for a review which was pre-
sented to the court, admitted to be of this efinr-
acter. (Cited, the opinion of the Circuit Court
in the case referred *to.)' It is thua [*5»0
shown that the record is defective, and tlint
there Is such a party. Rut to the next of kin,
the appellants, this party ia of no importance.
His claim does not affect their claims. They
deny his rights as heir-at-law; although they
maintain that his righta, sod those of all others
shall be presented in the case bofore ita final
disposition.
Mr. Sergeant, in reply.
Is the question of domicile open on the plead-
ing! Does it appear important!
If the want of an essential averment is not
taken notice of by the party claiming it as neo.
essary, when be has n full opportunity to do so^
his right and opportunity to do so may be lost.
If the point is not sufliciently before the court,
the party complaining should have moved to
siippresB the evidence on it. If he does not do
this, and goes into the investigation, can he
afterwards avail himself of It; having taken
the opportunity of an examination and discus-
sion of the case, and this after a decree! Tltose
who were parties in the Circuit Court are pre-
cluded from taking this exception.
Is there not in the pleadings suflicient to
.. Tbe opinion of the Circuit Court of reonitl-
vanla. delivered In this com b; Ur. Justice Bald-
win, will be found la the Appenijli. Na. a.
SorUMK Conn or tbc Uhitid Statu.
18St
liBVB introduced evidence as to the domicile of
llie ttstatnrT Anil if there was Dot, should
not those who consider such sn averment es-
sential, h»ve moved to auppresa all evidence on
itr
Ib It necessary to allege domicilcT The law
settles that every man has a domicile. The an-
swer of the executor shows that the domicile
was brought forward. But In this case, the
domicile of the testator was unimportant, as
the law of England and Pennsylvania, by which
lliis case must be decided, is alike.
There is enough in the case for the decision
of all the claims on the estate of the testator;
and the executor will be entirely safe under the
decision of this court. He has done ail that
could or can he required of him.
It is denied that any persons but those in the
record have any right to interpose in this
court; nor should the proci ?.1jjii,s in tta^ Cir-
cuit Court, after the appeal, have been referred
to. Certainly no reference should have
sol*} been made to the opinion of the 'court,
in a case subsequently brought before that
I'ourt by a person not a party in the case here.
iN'oi' would the opinion of tlie piesidiiig jud^e
ill the Circuit Court sustain ttie reforence to it,
if tliat opinion were fuliy examined.
Mr. Ingeisoll, counsel for the executor, olfered
lo the court the proceedings in the Circuit Court
of Pennsylvania, ou a bill of review filed in that
court against the executor.
He slated that if the court shall think proper
lo take those proceedings into their considera-
tion, the counsel tot the executor, and those
nho reprc^eut the purties to the bill of review,
are pieparcil and noilf to act as muy be con-
siUei'ed proper, and may he permitted.
Jtlr. Setgeaot desired that tlie principal ques-
tion before the court sliall be first decided,
iind after this shall l>e disposed of, any other
matters which may properly be considered may
ba examined.
Mr. Justice Story dQlivcred the opinion of
(he court:
Ttiib is the case of an appeal from a decree
of the Circuit Coult of the District of I'eun-
syhai.ia, iu a suit iu euuity. The bill was filed
by Samuel Packer, and asserts that one Mat-
lliias Aspden, a citizen of Pennsylvania, made
his will, dated in Philadelphia, on the eth of
December, 1701 ; and thereby bequeathed all
his estate, real and personal, to his heir-at-law,
nnd afterivards died in August, 1624; snd hia
will was proved and letters testamentary were
taken oiit in Pennsylvania by the appellee,
under which he has received large sums of
money; and the bill then asks for a decree In
favor of Packer, who asserts himself to be the
true and only heir-at-law of Matthias Aspdon,
and that he is solely entitled under the bequest.
The answer of the executor states, from in-
formation and belief, that the tcststor was bom
in Philadelphia, which was the residence of
his parents, about 1766; that be continued to
reside there, doing business as a merchant,
with some succesj, before he was twenty-one
fears of age: that before the breaking out of
he war between Great Britain and America in
IT76, being still a minor, he went to England,
with what view, the executor ia not, from his
own kaowlodgt, able to say— b«t he believes
SO*
that h« went with an 'imprcEsion that [*SOS
the power of Oreut Britaic must soon prevail
in putting down lesislance inAmeriia; that the
testator subaequenlly came several times to the
United States, and invesied large sums in gov-
ernment stocks and other Bt'curitirs; but
whether after bo returning to the United States
the testator went hnck to England as h:s home,
or only tor the purpose ot superintending his
property, and whether the testator did [n
fact change his domicile, the executor (save su)d
except as appears from the tacts) doth not
know, and is unable to answer; but he believes
that the testator, when in Enghind, considered
himself as an alien, etc.; and he died in King
Street, Holhorn, London. The answer also
states that the executor proved tlie will, and
took out letters testamentary in England; and
states certsin proceedings had upon a bill in
.■hancery in Eu^iai.d, against him, by one John
Aspden them, claiming to be the hcirat-law of
the testator; and annexes to his ansuor a copy
of the bill- He also alleges, that several other
persons have made claims to the same property
as next of kin of the testator, of whotie names,
etc., he annexes a schedule.
Various proccedirif;a nere had In the CSrruil
Court of Pennsylvaniu, and a reference wns
made to a msslcr to examine and slate who
were all the heirs and next of klu of the testa-
tor. The mostcr made a report, which was
afterwards confirmed; end thi'tuu|Kin u final
decree was msile by the court, in fuvor of Juiin
Aapdcn, of Lancashire, in Englard, one of thv
per.sons who made claim before the m.istcr, as
entitled, as heir-at-law, to the personiil estate
in the hiiniJs of the executor; and the claims of
the other persona claiming as hcirfi-ct-lnw, were
dismissed; snd the present rppcat has been
taken by several of these clnimiinia.
The cause having come before this court tor
argiunent upon the merits, a question occurred
whether the frame of the bill, taken by itself,
or taken in connection with the nnsHcr, con-
tained sufficient mailer upon which the court
could proceed to dispose of the merits of the
cause, and make a liuul dctUion. TUf hill con-
tains nu averiucnt of the olIusI Ji^.m^iii: of ilic
testaiof ut the time uf the uiiiliing of hi* will
or at the time of his death, or at any iuter-
mediate period. Nor does the onswer coniain
any averments ot domicile, which supply these
■defect* in the bill, even if it could so ["SOS
do; as we are of opinion, in point of law, it
could not. Every bill must contain in itself
sufficient matters of fact, per sc. to maintain
the case of the plaintiff; so that the same may
be put in Issue by the answer, and eatahliHiied
by the proofs. The proofs must be according
to the allegations of the parties; snd if the
proofs go to matters not within the allegations,
the court cannot judicially act upon thi'm as B
ground for its decision; for the pleadings do
not put them in couteslntion. The allegata nnd
the probata must reciprocally meet and conform
to each other. The case cited at the bar, of
Matthew T. Horbury, 1 Vern. Rep. IB7, does
not in any manner contradict this doctrine.
The proofs there offered were founded upon
allegations in the bill, and went directly to
overthrow the consideration of the bonds set up
in the answer in opposition to the allegations
of the billi the latter having asserted that the
Pe«era 9.
bcnda ««ra obtaJntd bj thre«ta *nd nadue
usaiu, and not for any real debt, or other good
conudention. la, th«n, uj kTcnnent of the
■ctiwl domicile of the teatator, under the dr-
cunutaneca of the present cam, proper end
neoesBuj to be made in the bill, in order to en-
able the eonrt to come to a final decision upon
tbe meritat We think that it ia, for the reaaona
which will be preeently stated.
Tlie point waa never brought before the
Circuit Court (or consideration i and, conse-
luently, was not acted on by that court. It did
not attract attention (at featt as far aa we
know) on either aide, in the argument there
made; and it waa probablT paaaed over (aa we
■11 know mattera of a aimilar nature are every-
where else), from the mutual underatanding
that tbe meriti were to be tried, and without
any minute inquiry whether the merita were
fully spread upon the record. It ia undoubted-
ly aii inconvenience, that the mistake haa oc-
curred, but we do not see how the court can,
on this account, dispense with what, in their
Jodgment, the law will otherwise require.
The present ia the case of a will, and io far
■t leaat aa the matter of the liill is concerned, is
exclusively couRncd to peieonalty bequeathed
by that will. And the court are called upon to
E'Te a construction to the terms of the wilt, and
an especial manner to ascertain who ia
meant by the words "heir-at-taw," in the lead-
in); bequest in the will. The language of wills
BO-i*] ia *not of univeraal interpretation,
having the seme precise import in all countries,
and under all circumstances. They are sup-
posed to speak the sense of the testator, ac-
cording to the received laws or usages of the
eountry wliere he is domiciled, by a sort of
tacit rcfereni^: unless there is something in the
language vbich repels or controls such a con-
clusion. In regard to personalty in an espedal
manner, the law of the place of the testator's
domicile governs in the distribution thereof, and
will govern in the interpretation of wills there-
of; unless it ia manifest that the testator had
the laws of some other country in his own view.
No one can doubt, if a testator horn and
domiciled in Enirtand during his whole life,
■hould, I7 his will, give bis personal estate to
M* heir-at-law, that the descriptio persons
wonld have reference to and be governed by
tbe import of the terms in the sense of the laws
of England. The import of them might be
very different if the testator were bom and
domiciled In France, In Louisiana, in Pennsyl-
vania, or in Massachusetts. In short, a will of
personalty speaks according to the laws of the
testator's domicile, where there are no other dr.
eninatances to control their application 1 and to
raise the question what the testator meana, we
ainat Snt ascertain what waa his domicile, and
whether be had reference to the laws of that
6 lace, or to tbe taws of any foreign eountry.
low, the very gist of tbe present controversy
turns upon the point who were tbe person, or
pereonn, intended to be designated by the tes-
tator, under the appellation of "heir-at-law."
If, at the time of making his will, and at hia
deatb, he was domiciled in England, and had a
reference to ita laws, the designation might in-
dicate a very ditTerent person, or persona, from
what might be the case (we do not say what ia
the ease) If, at tbe time of making hia will, and
of hb death, he was dontdled in PennsylTanfa.
In order to raise the question of the true inter-
pretation and designation, it seems to us indis-
pensable that tbe country, by whose laws hie
will is to be interpreted, should be first ascer-
tained) and then the inquiry is naturally jae-
sented, what the provisions of those laws are.
If this be the true posture of the present case,
then the bill should alle^ all the material facts
upon which the plaintiff's title depends ; and
the final judgment of the court must he given,
BO aa to put them in contestation in a propisr
and regular 'manner. And we do not ['SOB
perceive how the court can dispose of this cauaa
without ascertaining where the testator'a domi-
cile was at the time of his making his will, and
at the time of his deatC; and If so, then there
ought to be suitable averments in the Mil to
put these matters in issue.
In order to avoid any misconception. It !■
proper to state that we do not mean, in thii
stage of the cause, to express any opinion what
would be the effect upon the interpretation of
the will, if the domicile of the testator was In
one country at the time of his making his will,
and in another country at the time of bts
death. This point may well he left open for
future consideration. But being of opinion that
an averment of the testator's domicile is indis-
pensable in the bill, we think tbe case ought to
be remanded to the Circuit Court, (or the pur-
pose of having auitabte amendmenta made in
thia particular; and that it will be proper to
aver tlie domicile at the time of making the will,
and at the time of the death of the testator,
and during the intermediate period (if there be
an^ change), so that the elements of a full de-
cision may be finally brought before the court.
The petitions of the claimants should contain
similar averments.
It appears, from the motions which have been
made to this court, as well as from certain pro-
ceedings in the court below, which have twen
laid before us in support thereof, that there are
certain claimants of this bequest, osacrting
themseWea to be heire-at-iaw, whose claims
have not been adjudicated upon in tbe court
below, on account of their having been pre-
sented at too late a period. As the cause ia to
go back again for farther proceedings, and
must be agun opened there for new allegationa
and proofs, these claimants will have a full op-
portunity of presenting and proving their claims
in the cause; and we are of opinion that they
ought to be let into the cause for this purpoea.
In drawing up the decree remanding the cause,
leave will be given to them, accordingly. The
decree ^ the Circuit Court is therefore re-
versed, and the cause is remanded to the
Circuit Court, for further proceedings, in con-
formity to this opinion.
Mr. Justice Baldwin, dissenting.
The preliminary question which has been
decided by this 'court Is one of the ['&06
deepest interest to all suitors in the Inferior
courts of the United States, the judges thereof,
and the profession generally. The nature of
the objection to hearing the cause on its raerita,
or to even examine the evidence or the decree;
the time at which it was made, with its attend-
ant circumstances, make this case a precedent
of infinite importance aa a rule for future pro-
lOt
6M SvnMMM Conn or t
CMdingi in s court of tlie laat reMrt, in the
ezerciM of k juriidiotioD «xoliuiTdj appel-
late.
A flnaJ decree of a, drcuit court, rendered in
K long pending knd nslouity contested C4<ue,
after tne fullest consideration, has not only
been reversed ; but all its proceeding* so com-
pletely annulled aa to open the case to new par-
ties, new bills, pleadings, iasuee, and evidence;
and to mtLke it necessary to begin de novo, in
the aame manner as if the court had never acted
on any question which could ariae.
This has been done, too, on an objection not
taken by counsel, either in the Circuit Court,
Ot assigned for error here in the printed brief
of their points, presented to this court as the
ground of a reversal of the decree of which the
ai^llanta complain; nor did either of their
counsel think proper to avail themielvea of the
mggestion after it fell from the bench, until the
one who opened tbe argument bad closed his
i^w of the first ground assigned in the brief
(or error. And when on the next day, another
of the counsel of the appellants drew the atten-
tion of the court to the objection, it was not to
reverse the decree as erroneous in law or fact,
but as a reason for considering it as so merely
and utterly void as to make it improper to ex-
amine into the errors assigned by himself and
colleagues; and proper to suspend the argu-
ment on the merits, till tbe consideration of the
question thus raised, the decision of which
leaves tbe law, justice and equity of the case
untouched; while every proceeding had in it is
utterly prostrated; leaving the parties, at the
end of a seven years' litigation, to begin anew.
To them it is no consolation that these elfects
have been produced by
form, not deemed by the
worthy of being noticed or guarded againsti
for the action of an appellate court on a judg-
ment at law, or a decree in equity, can be of no
middle character. A reversal annuls it to all
intents and purposes; It can no longer be given
in evidence in support of any right, or as proof
BOT*] of any fact in favor *of the party in
whose favor it was rendered, or against tbe op-
£ait« party: no one thing remains a res adju-
cata, but every question of law and fact is as
entirely open as if the court had never given a
Judgment or decree. It Is inconsistent with the
constitution of appellate courts in England, or
the States of this Union, to modify a general
reversal of a Judgment or decree, It is absolute,
and must be attended with all legal eonse-
quencea, which no court can avert by any salvo
or declaration that it is reversed only pro
forma ; the decree or judgment cannot be in any
part carried into effect in the court below, or
come again into an appellate court, till a new
one is rendered. The same principles prevail in
the courts of the United States, by force of the
judiciary and process acts, and the seventh rule
of this court, which regulate all proceedings by
those of the King's Bench and courts of equity
in England, unlfas otherwise provided for by
law, subject to such alterations and additions as
this court may prescribe to the circuit courts, or
as they may make not Inconsistent therewith.
1 Story's Laws, 67, 267. This court has uni-
formly acted by the rule* thus prescribed,
which regulate not only its own proceedings,
but its adj-idication on those of inferior courts
I UHiiKit Statu. MH
which are brought witbln ita appellate powarj
they must, therefore, be considered as the teata
of the conformity of the decision now made,
with the established principles of courts of or-
iginal or appellate jurisdiction, by the course nl
the law of equity, the rules of this court, and
the acts of Congress which regulate its exercise
on appeals.
In the Circuit Court, George Harrison and
others were claimants of a fund in the hands of
Mr. Nixon as executor; their petitions having
been dismissed on a final decree against them,
they now on an appeal oak for its reversal for
tbe reasons assigned in the brief of their coun-
sel, which relate entirely to the merits of their
claim; but at the same time contend that the
whole proceedings In the Circuit Court are mere
nullities; because the appellants themselves, as
well as tbe other claimants, omitted to insert in
their petitions a direct averment of the domicile
of the testator, under whose will they all claim.
As this objection is not aimed at the decree, or
the right of any party who claims tbe fund, it
must be considered as applicable solely to tha
form and frame of the original bill and peti-
tions; 'intended to present, not a cause [*&UB
of reversal of the decree for error in law or fact,
but the broad question of Jurisdiction. First,
whether it was competent for the Circuit Court
to make any decree in the case before them;
and next, whether the decree rendered is such
that this court, in virtue of ita appellate power,
can hear and determine the matter appealed
from. It must have occurred at once u> the
mind of the learned judge who flrst suggested
the objection, and cannot have escaped the ob-
servation of the counsel who has availed himself
of it; that if tbe case was within the judicial
cognisance of tbe Circuit Court, no decree
rendered by them could bo treated as a nullity;
however erroneous, it is binding on the parties
till an appeal, and becomes Snal if none is
taken within five years. It could not be de-
clared a void act, for any cause which did not
affect the original jurisdiction, without any
reference to the decree rendered by the Ciri^iit
Court. To justify such a course, it must l>e In
a case where this court would be bound to re-
verse at all events, and where its anirniiiooe
would not cure the defect, but would leave
tbe original decree without any effect upon tba
rights of the parties, and prevent it from bt^inf
received as evidence in any court. State, feder-
al or foreign.
An appeal upon any ground short of thia,
must auect the decree as erroneous merely, on
some matter injurious to the appellant; who
has his remedy under the twenty -second section
of the Judiciary Act, by an appeal from a
"final decree in a suit in equity," which it de-
clares may "be re-examined, and reversed or
aSirmed in the Supreme Court." It follows
that there is a discretion to reverse or affirm ac-
cording to the right of the case; and, surely, it
cannot be contended that if a decree can ha
affirmed on appeal, it can be considered as a
mere nullity after affirmance. If the question
arising on the appeal was one of merely error,
not of jurisdiction. Nor can it be doubted
that if the merits of tbe case were eognisabla
by the court below, they are equally so on ap-
peal; and that a final decree of affirmance binda
all parties In all oourts, ai to tbe matters da-
1830 Hamisok Bt i
M«cd, which mmt be done on * K-examinetion
of Uw liDal decree.
Snch ia the general eoune preacribed to this
eourt by the twenty-second section, in ell cetea
eoming before them by appeal: the twenty-
fourth is stiJl more explicit. "That when a
jodgtaent or decree sball be reverted in a circuit
CO**] court, auub 'court aball proceed to ren-
der such judgment, or paa* aucD decree aa the
IXatrict Court should haTe rendered or paased;
■zid the Siiprpme Court shall do the same on
raversali therein, except where the reversal is
]m fat'or of the plaintiff or petitioner in the
original suit, and the damage* to be aaeessed or
the matter to be decreed are uncertain, in which
ease they shall remand the cauae {or a flnai de-
The aeeond clause of the second Motion of
the third artiole of the Conttttution declares
"that in all cases affecting ambaasadora, other
public mini at ere and consuls, and those
the other rases before mentioned, the Supreme
Court shall have appellate jurisdiction, both as
to law and fact, with such eiccptiona and
under such regulations as the Congresa shall
The twenty -second and twenty -fourth
tiona of the Judiciary Act are the execution by
Congress ot an express const it utional power,
which niakt-s these provisions as imperative on
the Supreme Court as if they bad been detailed
in the body of the Constitution: they form "
conetitution as an appellate court, defining
powers, and prescribing their exercise, in
eiamining, reversing or afHrming the iinal
judgments and decrees of all courts which may
Lie brought within its appellate jurisdiction.
The twenty-second limits the appellate power
to tbe revision of final decrees in cases in equi-
ty, herein departing from the course of appsl-
tate courts in England and in New York; there
an appeal lies to the House of Lords or Court
of Errors, from the Interlocutory orders and
decrees of the Chancellor; the other regula-
tiona prescribed by the Judiciary Act are in
conformity to the uniform course of all appel-
late courts, as long settled by uniform practice,
adopted by the rules, and followed in the de-
cisions of this court. This course cannot t>e
lietter deflned than Id the words of Qiancellor
Kent: "It ia the acknowledged doctrine of
eanrtj of review, to give such decree aa the
eonrt below onght to have given; and when the
plaintiff below brings the appeal, the court
above not only reverses what is wrong, but de-
ereea what is right, and models the relief ac-
cording Ut its own view of the ends of justice,
and the exigencies of the ease. The court
610*] above acta, therefore, on 'appeals
the given case, with all the plenitude of a co'
of equity of original jurisdiction, and the apecial
terms of the decree, whatever they may be,
become to thia court the law of that case, and
no other or further relief can be administered
to the party." 1 J. C IM, 1«S.
This doctrine, then, is the law of this court
oat only by the acknowledged principles ot the
law of equity, but SB an injunction of the SU'
preme law of the land; from the observance of
which, the eourt can be absolved by no rule or
pnctic* e^lraiiant tbereto. U ita authority
. *. MxoH. MM
rested alone on either tbs recogntted rule! of
appellate courts or their settled practice, it
niight be varied at the discretion of the court,
by their power to make rules respecting prac-
tice, prorcedingi and process; but they can
have no discretion to alter or depart from those
'principles and usage* of law" which Con-
gress have adopted aa regulations of, and ex-
ception* to, the appellate power of all the court*
of the United Statea, pursuart to the provision*
of the Constitution.
It must, therefore, be taken a* a rule of con-
stitutional law, binding on this court, that if it
take* cognizance of a causa on appeal under
the twenty-second section, it must be by re-ex-
amining the decree, reversing or affirming it)
and by the twenty-fourth, on reversal, to give
audi decree aa the Circuit Court ought to iiav*
rendered, or remanding it for final decision, aa
the case may be. There can be no other cours*
pursued; for, as the appellate power is con-
fined to thoae cases to which it baa been ex-
tended by Congress, and must be exercised
within this limits and by the regulations pre-
scribed it can have no inherent powers in
virtue of which It can review or revise the de-
crees of the inferior courts, by any general
superintending authority such as appellate
courts may have, whose jurisdiction has neither
been conferrtd or reflated by a constitution
or statute. No principle has lieen better set-
tled, or more steadily adhered to, than that
this i* a court of special jurisdiction; whether
original or appellate, which the Constitution
has defined and aeparated by a line which Con-
gresa cannot paas, by extending that which i*
original, to cases which are appellate or e con-
veieo. 1 Crancb, 164, etc. As the present ia
an unquestioned case of appellate jurisdiction,
it must be exercised accoriung to the regula-
tion* prescribed by Congress) by an examina-
tion "of the final decree on its merits, ['till
U the court takes judicial cognizance of the
record. Any other course is wholly unknown
in an appellate court ot equity; unless there is
■uch a fatal defect in the record as affects the
jurisdiction of the court below, and prevents
the court above from acting judicially upon It
by hearing and determining the matters in con-
troversy; in which case tbe decree will be re-
versed, the cause remanded, and the (Srenit
Court be directed to dismiss tbe bill, or make
the amendments necessary to give it jurisdio-
It is not pretended that tbe Circuit Court baa
not jurisdiction of this case, as one between
proper parties, touching a proper subject mat-
ter of controversy; nor can it be doubted that
the jurisdiction of this court is equally clear.
A final decree has been rendered, an appeal
regularly taken, by parties affected by the de-
cree; who, having given the requisite security,
have a right to be heard on all matters appealed
from, to ask a reversal and a decree in their
favor. The party in wbose favor the decree
has been rendered, appears here pursuant to
the citation, with an equal right to defend hi*
interests, to demand an aflirmance of the de-
cree, with a mandate for its execution.
Tliis court, then, cannot refuse to hear the
appeal, on the ground of a want of power, to
hear and finally determine all matter* appealed
from, which are properly and fully cognizable
Ill
SupBMit Cotm or thk (jHtm Sxatk.
18SS
by both courts ) and tUa DbjeeUon doe* not pro-
feM to be founded on the want o( competeiit
parties to a controveraj in the teileral court*,
BT a subject matter cognizable in equity. Aa
it avoids these questions, tlie objection defeats
itaelfj for it must necessarily apply to the
sourae of the Circuit Court in the progress of
the cause, and their Bnal adjudication on the
matters aubmitted by the parties; the revision
of which is the ordinary exerciaa of the juris-
diction of an appellate court, in confonaity
with the acknowledged doctrine of such courta
and the positive injunctlona of the Judiciary
Act; wtucb it is the direct object of tbia motion
to prevent, and which baa been effected by the
judgment now rendered. There being no doubt
€tt the jurisdiction of either court, the only
Sestiona which can arise are, whether any of
i petitioners have, on this record, shown •
right in equity to demand from the respondent
Nixon, the fund which he holds in hia liands,
KI3*] subject to the order of the court, *he
claiming no interest in it, except his commis-
sions and proper credita. The case ia, there-
fore, ons of ordinary occurrencei a bill in equity
filed by one claimant, and petitions by others,
for the surplus of an estate in the hands of an
executor; who in hia anawer interpleada, aub-
mits to any order the court may make, and
prays their protecUon by such a decre* as will
•ave him from future litigation.
Whether a bill in equity contains any ground
for relief, or, what ia called in the language of
Its courts "equity," ia not a queation of juris-
diction, but of merits; the inquiry is, has the
petitioner aet forth a cause of action in his com-
plaint, haa he aTerred any matter which, if
true, entitles him to the relief prayed for, or
any relief, or set it forth in the manner required
by the rules of equity T K he has, the re-
■pondent must plead some new matter in avoid-
ance, or in his answer ^ve some reason why he
does not do, or ought not to be decreed to do
the thing required of him. If the complain-
ant's petition contains no equity, or sets it out
defectively, it is good cause for demurrer gen-
erally, or for cause; or the respondent may ob-
ject in hia answer, or at the hearing, to the
want of equity in the bill; and it is a good
ground for the reversal of a decree on appeal.
So, if a question arises whether the allegations
of the bOl are made out by the proofs in the
cause, it is a proper inbject of consideration
before rendering a decree in the court below,
u well as review In the Appellate Court; not
as a question of jurisdiction, but one which
arises in its exercise. "It is well settled that
the decree muat conform to the allegations of
the parties." II Wheat. 120, and be sustained
by tliem as well as by the proofs in the cause
(10 Wheat. 180); but whether it does so eon-
form, nnd ia so sustained, ia determined by the
Appellate Court, on the inspection of the whole
record and proceedings before them; aa was
done by this court in Carncal v. Banks, and
Harding v. Handy, above cited. In examii
ing the atlegationa of * declaration in a coui
of law, a court of error examines only whethi
the plaintilT has aet out a title or cause of ai
tion. "If," in the language of this court, "It Is
defectively or inaccurately set forth, it is cured
by a verdict; because, to entitle the plaintiff to
reoorar, all eirenmstanoaa ■eceasary to make
out his cause of action, ao imperfectly stated
must be proved at the trial; but, when ao
*cauBe of action is stated, none can be [*S1S
presumed to have been proved^ The case !a
not to be considered ae if before us on a de-
er to the declaration. The want of aa
nent, so aa to let in the proof of usage,
cannot now be objected to the record. Tha
evidence was admitted witliout objection, and
now forms a part of the record, aa contained in
the bill of exceptions. Had an objection been
made to the admission of the evidence of usage,
for the want of a proper averment in the dec-
laration, and the evidence had, notwithstand-
ing, been received, it would have presented a
very different question." S Wheat. G04, G95.
This is the settled rule of this court in cases at
that they wilt not reverse a judgment for
any defective averment in a declaration, not
demurred to, if the plaintiff has Bubstanttallj
set out a cause of action; such, too, is the es-
tablished principle in case a in equity. As
where a bill was filed to set aside a conveyance,
account of the mental incompetency of the
grantor, which contained no direct or positive
averment of his incapacity; yet the court took
cognizance of the case, examined the bill and
proofs, and decided that, "although a more
direct and positive allegation that C, H. was
incapable of transacting business would han
more satiafactory than the detail of cir-
itances from which the conclusion ia
drawn, yet we think that the averment of hie
incompetency is lufEciently explicit to make
it a question in the cause. The defendant
haa met the charge, and we cannot doubt that
his answer is sufficiently responsive to give
him all the benefit which the rules of equity
allow to an answer in auch caaea." II Wheat.
121.
In that easB the whole gravamen of the bill,
the whole equity of the case, was in the aver-
ment of the incompetency of the grantor to
make a contract; yet it was held aufiicient to
the circumatancea from which the conclu-
sion could be drawn, that it was enough if the
bill made it a question in the caiue, that the
defendant had met the charge, and his answer
was sufficiently reaponsive. The court pro-
ceeded to look into the proofs in the cause;
inquired whether the testimony est a b!! shed the
incompetency of C. H.; and examint^d the im-
mense mass of contradictory evidence, which
the record contained, with attention, and af-
firmed the decree of the Circuit Court of the
First Circuit annulling the contract, on tlie
ground of incompetency. *It is there- [*SI4
fore a settled point that an objection to thf
sufficiency of the averment* of the bill must be
considered b^ the Appellate Court as one di'
rectly involving the merits of the case; it ia the
statement of the complainant's cause of action,
to which the defendant must demur, tf he relies
on the want of form, manner or circumstance,
or he loses the benefit of the objection. If he
relies on an objection to the aubstance of the
averment, or its variance from the proofs in
the case, he must make It epp^r to the satis-
faction of the court that the bill contains no
equity on its face, that no cause of action is aet
forth, nor any circumstances from which tha
conclusion of an averment of one, eould b*
draws «<mformablj to the erideBce adduced.
Eabbisor XT al. t. Nixox.
S15
Tht ^tptlcattan of t1iea« ca»u to the record of
tke Circuit Court presents onlj' this difference:
1^ the Bubstitution of the word "domicile" for
"tuBce" In Renner r. The Bank of Columhia,
mad dtisenahip" for "incompetency" in Bard-
lag ▼. Bandy, the rule and principle! of both
■re Identical in point of law.
In applying these maxiniB of thii court to the
objeirtion nude by the appellanta to the rC'
•xunination of this case, tbe record shows that
the gnTamen of the original tull and all the
Etltiona ii, that Matthias Aspden made a i '"
rising his real and personal estate to hts hi
■t-law, and died leaving Henry Nixon, the
•pondent, hit executor, who tuis In hii hands
* Ikrge surplus of personal property, to which
tli« several parties aver themselves to be en-
titled by the termK of the will, but which the
executor refuses to pay over, though bound in
equity eo to do. It these averments are true,
if they are made out by the proofs and exhibits
in the cause, there is certainly equity in the bill
anfficient to entitle the devisee, or legatee, '- -
decree against the executor for the surplu
the estate in his hands. Had he demurred to
the bill, he would have been adjudged to an-
swer over, for there could have been no clearer
case for the interposition of a court of equity;
or if he bad insisted on the objection at the
hearing, it could not have been doubted that
there was a substantial averment of m ground
of relief.
The execution of the will was duly proved,
the aanity of the testator was admitted, the
fund waa in the hands of the respondent, who
admitted the trusts, submitted to the jurisdic-
SIS*] tion 'of the court; ready to abide their
decree, he held the money for such person as
they should decree to be the person entl-
tkd under the will, which was an exhibit In
the ease- The only question depending was,
who was the person that filled the description
of the devisee or legatee; when that waa ascer-
tained, the whole controversy was ended. Had
the will named Samuel Packer, of New Jersey,
the original complainant, George Harrison, of
Philadelphia, or John Aspden, of Lancashire,
England, two of the petitioners, parties to this
appeal, as the favorea objects of this testator's
bounty, the executor would have stood without
an excuse, for not paying him the surplus of
the estate. It could not be a material averment
where the testator's domicile was; his executor
was bound to obey the directions of his will,
be Us domicile where it might. This proposi-
tion admits of no doubt. But as the wiU names
DO person, it must he ascertained from its terms
who was intended to be the devisee, or whom
the law designated as such by the legal intend-
nent of the words used in the will. When that
fa done, the rights of the person or persons
thus designated, and the duties of the executor,
heeome the same as if he had been expressly
■amed as the person entitled, on which the
•neation of the domicile <^ the testator could
have no direct hearing.
"nm only direct question on the construction
tt the will was the intention of the testator as
ta who should enjoy his estate after his death;
all other questions were collateral to this, and
the only effect of hie domicile could be, as the
gromid of an inference of his intention being,
to TiTc it to anch pecaon aa ahonld be his heir
by the local law. But this la only a circum-
stance from which to draw an Inference of in-
tention, and before such Inference could be
drawn, it must be made to appear that the law
of England designated one person, and the law
of Pennsylvania a different one. If the law of
both countries is the same in this respect, the
averment of domicile in the bill would not put
in issue even a circumstance from which any
conclueion could be drawn; and so far from
being matter of substance alTectlng a final dc'
cree, it would not be a ground of special de-
murrer. If it once becomes the established rule
of this court that the decree of a circuit court
shall be annulled on a motion, without an exam-
ination of the record, because It 'does [*S1S
not set out an averment of a collateral foet or
circumstance bearing on the intention of the
testator by inference merely, then every such
fact or circumstance must be averred distinctly,
of which domicile Is but one of many. The
state of a testator'a family and property is al-
ways referred to, to ascMtaIn the devisee or
thing devised; evidence of other collateral
facts may be introduced In many eases to aid
in the construction of a will, or to show the
intention of the testator; but no court of equity
ever held it necessary to aver those matters In
a bill brought to enforce the trusts of the will,
in favor of a devisee or legatee. In this case,
however, the original bill alleges the testator to
have been a citizen of Pennsylvania at the time
of his death; this Is done In direct and positive
terms; it is only neresssry, therefore, to apply
to this averment the principle laid down by this
court in Hs^ding v. Handy. Is dtizcniihip a
circumstance from which the conclusion of
domicile may be drawn T Is It sufSciently ex-
plicit to make domicile a question in the cause!
and has the respondent met this part of thelnllT
Theae questions are of easy solution. The domi-
cile of a citiEen of Pennsylvania is certainly
not presumed by law to be in England, without
some proof of his residence there, but is pre-
sumed to be in Pennsylvania till the contrary is
proved. The respondent has considered th*
averment of domicile as made, for be has an-
swered it; the parties in the cause have deemed
it a question raised, by taking testimony touch-
ing it; each of the ten counsel who argued the
;»se in the court below, made It a point, ex-
cept one, who did not deem it material; and
the court thought proper to lake it into their
consideration and express an opinion upon It as
point which had been argued — not whether
the domicile had been properly averred, but
where it appeared by the endenee to have been
'n fact, and its bearing on the will and cause.
It was the most deliberate opinion of both the
judges of the Circuit Court, that the taw of
both countries pointed to the same person as
the devisee; and that the fact of domicile had
no bearing on the intention of the testator, or
the construction of his will. As this was a
question of local law, arising directly in the
case, it was deemed necessary to examine it
thoroughly, before rendering a final decree; and
if it is now one vital to the case, It would seem
proper at least to consider whether the conclu-
sion of the Circuit Court was so clearly wrong
the law of 'Pennsylvania, as to justify [*S 1 7
thia court in annulling their final decree with-
the
a argument on t.
EIT
BurMKUi CoiTBT or t
E Uirrmi STAns.
ISH
In this opinion tba Circuit Court were sup-
ported by the couniel of the ■pppllants, in their
printed brief, presented for the Brgument of
tbe cause in this court. Their third point is,
"that tbe law of Pennsylvania is to govern this
case, and that by that law tbe; are entitled."
Their fourth point is, "but that if the case is
to be decided by the law of England, still tbe
appellants are entitled." Thus most distinctly
admitting the identity of the law of both coun
tries in its apulicntion to this will, which w&s
klso asserted by the counsel of the appellees.
Nor have the appellants' cotinsel, in their argu-
ment of this motion, even contended that there
is any diiTerence between tbe respective law?,
as to tbe person who is the heir-at-law of the
testator, or who are bis next of kio by the stat-
utes of distribution. In this union of opinion
between the iudges of the Circuit Court, and
the counsel of ali parties, thus apparent to this
court, it was not an unreasonable expectation
that they would, at least, have loolced at the
record, the evidence, the law and decree, be-
fore they would authoritatively decide that thert
was nothing deserving an argument without the
averment of domicile.
Tbe whole case turned upon a question of
local law, which had long been settled by thi
highest judicial tribunals of Pennsylvania, anc
sanctioned by the Legislature as (irmly as anj
one principle of her jurisprudence; that thi
common law of England, as to the descent of
Eroperty, had, from the charter of Pennsyl'
Ben adopted in all eases not specially provided
fol by act of Assembly. It remained only to
a amine the legislation of the State to ascertain
whether tbe present case was embraced within
the provisions of any law, had it been a case of
intestacy; if it was not, then it was an admit-
ted rule that tbe common law governed it.
But aa the present is not a case of intestacy,
the range of inquiry is still more narrowed; it
tuma upon the wonls of tbe will, wbicb is tbe
law of the case, paramount to any other.
Local laws can have no other effect on its con-
struction than by their presumed operation on
the mind of the teatator when he made his
will, as an indication of his intention to refer
to the law of his domicile, defining its terms.
518*] Yet, before such 'intention can be in-
ferred, it is a settled majdm of the law that it
must stand well with the words of the will; it
cannot bf admitted to vary its plain words, or
their settled legal signification.
If these eon side rations afforded no ground
for inducing the court to give the record an
appellate inspection, there nre others wbicb
may serve as some apology for the court below,
and the counsel there, ns well as here, for ovur-
loolcing the indispensable necessity of an aver
ment of domicile, in order to give to either
court jurisdiction over the subject ronttur of
the cause. In the first place, do such rule is
England or this country, and it forms no part
of their practice, as adopted by tbe nets of
Congress and the seventhruTeof this court. In
the next place, if such averment had been re-
quired by the ordinary mles of ei^uity prac-
tice, it was necessarily dispensed with, by the
adjudication of this court on the subject of
domicile, in a case af Intestacy, which is mnch
stronger than one under the wfll; for in tlw
former case the local law applies directly to
the estate of an inteatalp, as the rule by which
it shall be distributid. The law of the situs of
the property, the domicile of the intestate, or of
the place of administration, must govern; but
wbicb should be adopted by this court was
elaboralely argued in lR31,in the case of Smith,
Administrator of RobinHOn, v. The Union Bank
of Georgetown, 5 Peters, 618, n23. In that
case the intestate was born in Maryland, domi-
ciled in ViT';inia, died in Pennsylvania; had
personal property in this di<itricl,l)einga claim
upon tbe government, on which administration
was had here; he died insolvent. The question
arose by what taw his estate should be distrib.
uted among his creditors; on which this court
decided that it should be tbe law of the place
of administration, and not of tbe domicile,
which was the point directly adjudged, and
from which only one judge dissented. The
question of distribution among the next of Idn
was not directly before the court, but was
noticed in their opinion, from which the same
judge dissented also.
In alluding to the latt«r question, th« wofds
of the court are:
"With regard to the flrst class of cases, we
expect to be understood as not intending to
dispose of them directly or incidentally. When-
ever a case arises upon the distribution of an
'intestate'a effects exhibiting a conflict [*S IB
between the laws of tbe domicile and thoae of
the situs, it will be time enough to give the
views of this court on the law of that case.
'That personal property has no aitus, seems
rather a metaphysical position than a practical
and legal truth."
In noticing the provisions of treaties on this
subject, the court say, "it would seem that
such a provision would be wholly unnecessary,
if there existed any international law, by which
the law of the domicile could be enforced in
that regard in the country of the situBj or if
the fact of locality did not subject the goods
to the laws of the government under which
they were found at the party's death. In point
of fact, it cannot be questioned that gooda thus
found within the limita of b sovereign's juris-
diction are subject to his laws; it would be an
absurdity in terms to affirm the contrary."
"This necessity of administering where tbe
debt is to be recovered efTectually placea ta.?
application of the proceeds under the control
of the laws of the State of the administration.
And if in any instance the rule is deviated
from, it forms, pro hec, an exception, a volun-
tary relinquishment of a ri^ht countenanced
by universal practice, and is of the character of
the treaty Btipulationa already remarked upon,
by which foreign nations surrender virtually a
rifht, which locality certainly puta in thair
Against theae doctrines the dissenting judge
most earnestly but in vain remonstrated, insist-
ing that it was settled by the international la*
of the civilized world that personal property
had no situs; thst it wss distributable by the
law of the domicile, and that if these principlea
were sltakt^n by this court, or declared to be
unset tieil. irremediable and utter confusim
would ensue. For it waa a subject on wbtjh
Congress could not legislate out of tUa diatrlet.
fiAUUOR R 4X. T. NlXOR.
■or tka BUtM at tUs Unlmi, or foi«ip nfttioiu
Iwyond their respective territoriel limita; the
ineritkble reautts of which would be that the
Im,w of diEtiibution of an iDtettate's eatate
woold be different in evuy State ftnd country,
in which he owned any ooda. notabilia. Th&t
Um court having decid^ that a pecuniary claim
on the government of the United States wa«
bona notabilia in thii district, subject to distri-
batioD by th« local law ; it followed that if the
'nteetate had debts due to him in different
States, or owned a part of the funded debt of
different governments, or of the stock* of local
SSO*] 'corporations, there could be no uni-
form rule of distribution, either among credit-
c»> or diatributeea.
Bui the result of the moat deliberate con-
•ideration of this court is that which has been
■olemnly adjudicated and promulgated as the
rule and guide for all tlie inferior tribunals of
the United States. It would not have com-
ported with the judicial duty of the iliasenting
judge, presiding in the Circuit Court of Fenn-
•TlTania, to have declared to the profession
■iid auitora that his overruled opinion must be
taken as the law of the case. Ilad the counael
of the portiea complainants moved that court
to dismiss the bill, or petitiona filed by them-
selves, or, after a final decree, bad asked that
It ahould be declared to be an extrajudicial
act, because the domicile of a testator (not of
aa inteatate) had been averred only as a con-
eluaion to be drawn from an express averment
gf citizenship, the Circuit Court would have
been bound to have decided that it was unnec-
eeaarj, according to the decision in Robinson v.
Tbe Bank; for having settled that domicile wiia
wholl}' immaterial in distribution amongcred-
iton, and when they declared that "we expect
to be understood as not dispoains, directly or
incidentally," of the question of distribution
among next of kin, the dissenting judge would
have felt it hia duty not to have disappointed
an exMctation not only ao reasonable, but
wlildi he would have obeyed as a mandate of
psramouDt authority. The more eapecially, as
Um whole reasoning of the court of the last
resort went to negative the materiality of domi-
cile in any case; but most emphatically was the
diaaenting judge bound by his every duty not
to declare the law of the domicile to be the law
of the case, in face of the distinct proposition
of the court — "that personal property haa no
Htns, forma rather a metaphysical position than
A pfMtical and legal truth," and thus aubsti-
tote metaphysics for law as tho rule of his
iDdidal action.
At the time of rendering their finnl decree,
tke Circuit Court for the rcnnsylvania District
eoold not have foreseen that witiiout overrul-
fng the decision of this court made in 1831, by
tba same high authority which pronounced it;
when no queation was presetilcd to this court
bf cDunael touching t'je matter, or argued by
tb*m after tho suggmtion had fHllen from the
bmch, it should now appear to the same judges,
t« be a principle of law so manifest, »o clearly
and decisively settled, as to make the most
5S1*] 'solemn decree of inferior courts against
exeentors mere nullities, because the pleading
Ml which they were founded did not contain
•■ aapteas averment of the domicile of the
Uttrntar. Although the bill and tuwer con-
tained express avermenta of the cltisenship of
the testaUir, the place where he made his wilL
the place of hia death, of administration, and
the situs of the property. As these averments
were in strict conformity with the decision and
reasoning of this court in Robinson v. The Jlank,
it could not have been thought that there re-
mained in the vitala of the record, a disease
fatal to the action of the Circuit Court upon
tlie matters in issue.
Had it been objected that the situ* of the
property, or the place of the testator's death or
of administration, had not been averred, the
necessary amendment would have been madej
though the pleadings had averred the domicile,
that must have been deemed immaterial accord-
ing to the then doctrine of this court, which
waa that personal property had a aitua without
any reference to the domicile of an intestate.
It follows that if an averment of the situs was
indispensable, that of the domicile could not
be, as the rules of distribution would be dif-
ferent by the local laws. And as the law of the
ditua was the rule, when these pleadings and
issue were made up and the tinal decree ren-
dered, it would most certainly have stood the
test of this objection, though It must have been
reversed had the situs not been averred, not-
withstanding the domicile had been, however,
explicitly. Yet now it seems that a record con-
taining an averment of the aitua in all ita bear-
ings on the case is mere blank paper, becauae
the domicile ia averred only by way of infer-
en(« or concluaion from facta stated.
In 1B31 the materiality of the situs waa "a
legal and practical truth," that of the domicile
waa "a mctapliysical position," an absurdity in
terms, in the opinion of all the judges of this
court, but one. In 1835 the materiality of the
situs is the metaphysical, position and that of
the domicile the legal and practical truth. This
radical difference between the promulgated lew
of this court, on the aame question ariaing at
these periods, presents a conllictu legum which
the C^euit Court of Pennsylvania were not
bound to anticipate; the consequences of which
it is hard to visit upon auitora in that court by
drawing a aponge over all the proceedings in
this cause, to their great delay and *in- [*Sa2
jury; though they were had and conducted ao-
cording to the solemn opinion of this court aa
to the law of the case, when the suit began and
ended. At that time the judgea of the Circuit
Court had for their guide no better rules for
their decision thsn those laid down in 1B31,
and the practice of this court at the same termt
which, to one of the judgea at least, is some
apology for not exercising hia legal acumen in
discovering a fatal defect of jurisdiction over a
cause in which, it no^v appears, he has assumed
an unwarranted power to render a decree on
the merits. It ia his consolation to find, not
only in the solemn judgment in Robinson r.
The Bank, the reasons for overlooking tho in-
dispensable nei^esaity of an averment of domi-
cile, but the fact that in two other cases in the
same term this court had practically decided it
to be unnocessary.
The case of Backhouse v. Patton. Adm. cum
test. ann. de bonis non of Jamea Hunter, was k
bill in equity to compel an account of the per-
sonal eetate of the testator, and for its doe dia-
tributioni the bill averred the testator to be «
31>
CSS BiTFBKUB OOUKI OT 1
citizen of VtrglalA, but eontftiowl no kTerment
•f hia domicile. 6 Peters, 100, eta.
The case of Page v. Llojd, executor of H«Ji-
bury, knd Pstton, Adin. cum t«Bt. anu. of Mann
Page, was on a similar bill, containing an ac-
count of the aitue of Mr. Mann Page's personal
propertj in tiro counties in Virginia; but no
ftvennent of either his citizenahip or domicile.
S Peters, 3M. Thi« court took cognizance of
both cases on cerUflcatM of divjgion from the
Circuit Ctourt of •Virginia, and finally decided
on all the matters so certifled, without a doubt
■t the bar, or on the bench, of the regularity of
the record; and as the rules of Us decision are
the same, whether a cause comes up on a cer-
tificate or on appeal, these must have been
deemed records on which it could act judicially.
It is not doubted that a further examination
among the records of this court, on appeals
from other circuit courts. In cases of equity
•giainat executors, will furnish additional proof:
that if the practice of that of Penneyivania haa
been in violation of all rules, it has the fullest
aanction in the course of this court through all
time; and this is the ftrst time it has annulled a
decree for such cause.
It is equally unknown to the fundamental
Iirinciplea on which it is organized aa an appel-
ate court, which in this case has not exercised
its powers aa directed In its constitution, by
623*] 're-examining and reversing the decree,
and rendering tv.ab a one as ought to have been
given. Its powur haa been exerted on a sum-
mary motion, not on an assignment of errors;
the decree and all preceding acta of the Circuit
Court have been declared null and void col-
laterally, not for errors in the record or decree;
for this court would not re-examine either, nor
have they, fn remanding the cause, directed
what final decision shall be made. The only
exception in the twenty-fourth section of the
judiciary Act, which authorizes any departure
from the Injnnctlon to render such decree aa
•agbt to have been made, is, "where the re-
venal la In favor of the petitioner in the orig-
inal suit, and the matter to be decreed ia un-
certain; in which ease, they shall remand the
cause for a final decision." But this case doee
not come within the exception, for though the
reversal ts in favor of petitioners in the original
suit, the matter decreed was certain; it was,
therefore, no case to be remanded, though if it
was, the court has not remanded "the cause
for a final decision." Its mandate la aperemp
tory order to the Circuit Court to amend the
pleadings from the beginning, to admit proofs
of new matter and new parties; in one word,
to make a neif case throughout; and concludes
with ordering, "such other proceedings are to be
had In the snid cause by the aaid coiut hm to
law, justice and equity shall appertain."
It had, heretofore, been thougfat to be the
province of a court of original jurisdiction In
Suity, to decide on amendments in their legal
icretion, or according to the act of Congress
witb which this court never interfered; that after
publication, and before a decree, the admission
of new proofs, new matter or new parties, wr~
discretionary with the Chancellor on a petitic
presented; that after a decree made, but before
anrollment, neither could be introduoed into a
•anas, unless by a supplemental UU In the
aatnre of ft bill of review ; nor af t«r sarallnant,
I Uiim Sutai. IIH
ileM by a bill of review on newly illmisw^
evidence, flled by partiea or privies to the eri^
Inal suit. It was also believed that therv w*A
distinction better established by the law of
equity, than the different effect of defectiv*
pleadings, vrben demurred or excepted to ia
the court below, and when they are unnoticed
till the cause is removed for review in an ap-
pellate court. And it has hitherto remained
'equally wsH settled that no decree [*fit4
will be reversed, even on a bill of review, for
any new -discovered evidence, unless in a easo
where a new trial would be awarded by a court
: lat
But if the dedrion now made Is to be here-
after considered aa a precedent for the futuro
action of this court on appeals in equity caaea,
it portenda a fearful change in the rules whi^
have heretofore drawn a line between the orig-
inal and appellate jurisdiction of the courts of
the United States, the cause<}uenceB of which
cannot be foreseen. The practical effect of this
judgment and mandate is an aasumption of tli«
province of the former, not only as to the rules
of practice, pleadings, amendments, partiea^
proof, and issues, which depend mainly on tfen
exercise of discretion; but is (nving to an ap-
peal from a final decree, the effect of a special
demurrer to a bill, an exception to an answer^
as well as of an original supplemental or bill
of review, fn all their respective operations oa
the case. This appellate court does uot dedda
upon the case or decree appealed from, it or*
ders an entirely new one to be made, by fta
utter prostration of everything in the record,
from the original bill throughout. It doea not
remand this cause for a Qnal decision by tbo
Circuit Court; it first devests it of all the attri-
butes and requisites of a case for a final decree,
and then commands that a case shall be roado
up for their original jurisdiction, as a suit in
equity, imder positive directions, which leav«
no discretion in the exercise of their juris-
diction over the matters referred to in the man-
date.
The reasons aaaig^ned by the court for thea*
proceedings are worthy of the most serious con-
sideratton. They decide that an averment of
domicile fa indispensable, because it might in-
dicate the intention to give the property to such
person as would be the heir-at-law by the law
of one country, who would not be the heir by
the taw of the other, but adds, "we do not a*;
what is the case." "That the country by wboM
lawa the will is to be interpreted should faa flrrt
ascertained, and then the inquiry ia naturally
presented wbat the provisions of those laws
are." They also direct an arerinent of th«
domicile "at the time of the will being made,"
"at the testator's death," and "in the int«r-
mediste time" (a period of thirty-three yeara))
domicile being at a different placa at these dif-
ferent times. 'Whence, then, arises, the [*BI5
necessity of the avennentat The natural order
of inquiry would seem to be, whether there
was any difference between the law of Eng-
land and FennsyWania, In the inter-pretatioa
of the will; and next, whether the will shottid
be construed by the law of the domldla at the
death of the testator, or at any other tlBtej fef
the materiality of Um KTsarmants dspends «»•
JIM t.
ISM
UASBiBon er al. v. Nixor.
Urdy M the aolutiaa of tli«M two queations.
U tJM law of both eountrioa wu the Bamc at dl
limcB, the Rvernienti an umIcm. It ii surely
a atimage ground for uprootiog a cause from ita
fanndatioii b; an appellate court, merely be-
cawM the original bill does not contain an aver-
■mt of K fact wliich, by poMibility, may be
material aa the evidence M intention, or the
txirtence of that fact at a time when It oould
have no pOMible bearing on the will.
WbeB the new caM now directed to be made
np ahall have been decided by the Circuit
Coort, and come here again on appeal, it ia to
be preauiaed that thia court will tnen deign to
inquire by what law this will muat be inter-
rrted and what the proviiiona of that law are.
ia alao to be hoped that br that time they will
feel prepared to inatruct tbe Circuit Coiul of
IVnnsylrania, whether their next flnal decree
wilJ be in conformity to the lav of the testator's
dHnidle, when he made hia will, when he died,
or at what period of the thirty-three years which
interrened, not omitting an explicit opinion up'
en the preliminary question, whether the donu-
d1 iMB any bearing on the will. As the mandate
now ia, that court ia ordered to proceed "as to
law, equity and justice shall appertain," but
ai» miinstructed by what law or rule the justice
er equity of the ease is to be ascertained, other
than the law which tbe testator has prescribed
ia hia wiU. The predicament in which that
eevrt is now placed is a moat unpleasant one;
thdr past errors have been so gross and palpa-
Ue as to make their whole proceedings nutlities;
yet they remain in the dark as to the means of
eorrecting them; tbe averment of domicile will
liadtononew evidence or lasue, not in the present
record, and no new question of law or fact can
•rbe in that respect. When a new ease shall
have been presented, it will differ from the
freaent only in this on* averment, which, by
the admission of this court, cannot have the
Boat remote elTfCt on the decree, unleai on the
tl**] contingency *of a coufiictu legum,
which is now as little ascertained as before thia
preparatory to a Snal decree, by the peremp-
to^ orders now given on all matters for their
iltunnte judgment; and sa to that, left without
my directiona how to avoid the recurrence of
the same errora which hare caused great and
expensive delay. There ia, however, another
pound assumed by this court, wliioh Is in-
Saitely interesting to all persona whose rights
■ay DC affected by its appellate powers in
equity cases, aa well as to all inferior courts on
neral principles ; but most emphatically to the
jidgeo of that court whose proceedings have
been thna rooghly handled in the opinion de-
livered. After the direction to make the aver-
aenta, the court remark, "it appears from the
Botiona which have been made to this court, as
■ell aa from certain proceedings in the court
below, whirh have been laid before us in sup-
port thereof, that there are certain claimants of
tbis bequeet, asserting themselves to be heirs-
■t-law, whose claims have uot been adjudicated
npon ia the court below, on account of their
havhif beM preaentad at a lata period." "Aa
t lb ad.
the cause muat go back for faitber proceeding*
snd must be sgain opened for new allegations
and proofs, these ctaimants will have an op-
portunity of presenting and proving their claims
In the cause, and we are of opinion they ought
to be let into the cause for this purpose."
The "motion" alluded to, was to revise tha
whole proceeding* In tbe case, made by the
counsel of persona who were not parties- or
privies in the original suit, or to the appeal;
the "certain proceedings ia the court bflow"
were had on a petition asking for leave to file
a bill of review by those persona, for newly dis-
covered evidence, and to make themselves par-
ties. Leave was refused, for the reasons given
at length in the opinion delivered by the Cir-
cuit Court, some garbled extracts from which
the counsel who argued the objection taken to
the want of the averment of domicile, not the
counsel who made the "motion" referred to by
the court, thought proper to read in the courif
of his argument. Had the whole opinion been
read by tne counsel or the court, they had seen
the reasons of the refusal to permit 'the [*K9T
bill of review to be filed, it would have been
moat apparent, not only that it was not because
the petition "waa piesented at too late a
period," but the Circuit Court expressly de-
clared that tbe petition was preaented within
due time after the final decree, had there been
no otJier objectiona. The grounds of tbe ob-
jection to the petition were, tliat those claim-
ants never asked to be admitted into the cause
till after the final decree, and the pendency of
the suit in tbis court on the present appeal; that
the Qrcuit Court could not reverse their final
decree in any other way than by a bill of re-
view for error apparent or new matter. That
such bill liea only in favor of parties or privies
to the Snal decree, in neither of wbicb charac-
ters could those persons stand; that their ease
was not supported by the requisite affidavits;
that the matter relied on was not new, or newty
discovered, but had lieen relied on in bills ia
the courts of ctiancery and exchequer in Eng-
land, years before the petition tor review, and
by tbe same parties ; that even if new, it was not
competent to procure a decree in their favor;
that with full knowledge of the state of the
fund, and tbe pundency of tbis suit, they had
been guilty of such gross and unaccountable
negligence, that no co\irt of equity could af-
ford them any relief on a IhII of review, and If
they had any remedy, it muat be sought in aome
other mode.
The Circuit Court could not adjudicate on
their claim, before it was presented for adjudi-
cation, and when so presented they had no
longer any power of adjudication over it, but
on a hill to reverse the original decree by re-
view for error apparent, or on an original bill
which the petitioners had a right to file. The
bill of review for new matter is a matter of
favor and discretion, which, in the case pre-
sented, thoy could not permit without the utter
disregard of the oldest and best -established
rulen of the law of equity; whereupon the par-
ties tiled their original bill, on which there has
not Ifen time for any proceedings to he hftj.
It is, tli'Tftore, a gratuitous assumption that
"those claims were not adjudicated on in the
court below," "on account of their having been
preaented at a late periodf" unless this court tn-
127
SUTBBMB COVn or THE UllITBt STATI
ICM
loided to refer to ihe gro»» delaf at the pertiea
before the (inal decree, and the eettted princi-
ple* of law which forbada that court from let-
ting the claimBDta into the case on a bill of re-
view for tlie cauHCB aiBigned. The judge who
638*] gave 'the opinion of the Circuit Court
feeli bound to npe! the Imputation which
would otherwise rest upon the "certain pro-
ceedinga in the court IkIow" as wholly erro-
ueouB, and unfounded, on tjiy other construc-
tion which may be given to that part of the
opinion of this court containing the alluaion to
tboie proceedings. It is also his right and duty
to inquire by what rule of law a court of mere
appellate power over final decrees of a Circuit
Court, assume appellate jurisdiction orer a sub-
ject matter not contained or referred to in the
record of the cauu liefore them on appealT By
what power this court can review the proceed-
ings of that court, on a petition for leave to file
a UU of review to reverse their own decree.
■fter an appeal ; an new -discovered matter,
which rests exclusively in their discretion aa to
granting or refusing it. and especially after the
parties bad acquiesced in the decision and had
adopted another remedy. And above all, by
what warrant this court can act on an appeal by
he parties now before them, in favor of persons
who are utter strangers to the record and suit,
who, being neither parties or privies, can be
beard only by an original bill filed in % oourt
of original equity jurisdiction.
The knowledge that these persona had de-
tired and had been refused admission into the
cause, not having been derived from the record,
was wholly extrajudicial, and is so admitted
l>y this court; yet it is made the basis of judi-
cial action, and its peremptory mandate to the
court below to admit them as parties, and hear
their proofs. Thus indirectly and collaterally,
but most effectually reversing the refusal to
permit them to file a bill of review, and giving
them not only all the benefit* which they could
have desired from a bill of review actuallv
filed, but of an actual reversal) nay, mucn
tho new matter set forth in their bill ; and this
would have been the utmost extent of the relief
which could have been given them had they
appealed to this court, obtained a reversal of
the proceedings in the Circuit Court on their
petition, and the case bad beeu remanded,
with directions to permit tho bill of review to
be filed, and its merits to be adjudicated.
Whereas, they now come Into the cause as
original parties, with the same liberty «a to
proof OS those who have been contending for
ftSft*] years. They are likewise fully 'ab-
solved from every requisition nnd duty en-
joined by the law of equity, as the indispensa-
ble eonditiors of their admitiHion as parties to a
■nit after a final decree, as well aa from all the
consequences of gross and long -continued neg-
ligence. All this has been done in their favor,
irithout any appeal by them, but on informa-
tion laid before this court in support of a mo-
tion which they would not listen to, and on
which they could not act directly in nrtite of
ttielr appellate power, consistently ivith the ac-
knowledged doctrines of courts of equity, or
the directions of the Judiciary Act, that is, an
appeal by tUe party aggiieved by a final de- '
ereo. In the present ceurae, than, of tUa
court, in relation to tiiose pereona who aro ma
parties to this appeal, aa alao to those whoara
proper parties, it must be aakedi What brlnga
any decree or other proceeding of a Gicittt
Court in equity, vrithin any power of this. If
ttot an appeal I What the act of reversal neoea-
sarily implies, if not jnriadietion of the eaaa
and its exercise 1 Or what is the nature of that
jurisdiction, if it is not appellatel And what
respect is paid to the Judiciary Aet, if thla ap-
pellate jurisdiction ii not axereised by re-ex-
amining the record and proceeding, according
to the directions of the law wUcb eonfera the
power, and is the only authority bv which anv
proceeding of a CSreoit Court can be ittviawa^
or its final decrees be rarersedl
As the court has reverted and umnllad eracy
proceeding which hma been had, directly or
collaterally, in this snlt; whother It reUted to
those wUeh hare come to tlieir knowltilga
without Judicial Information i Irmminoh ««
their whole action haa been on a tnmmary mo-
tion to reverse, aolely for the want of an *▼«-
mcnt in the Mil, which the court moat cautiout-
ly avoided deciding to be material to the mvlta
of the cause, otherwiaa than in the event ot
an unsMertained and potalble conflict of lawa
not aaaerted to exist, and wholly refuse to de-
cide any one matter put in isaue by thepartiea,
as to either law or fact. The mandate of re-
versal must be referred to some other thautlMir
appellate power, as granted by the Conatitn-
tion, defined, limited and regulated by Con-
gress; for it cannot be pretended to be within
the legitimate scope of any construction whlck
can be given to tne worda "appellate Juriadio-
tion," which necessarily requires re -examina-
tion 'of what had been before adjudl- [*ftSO
cated in the court below. If the juriedietioB
now exercised it ori^al, it Is only necessary
to refer to the decision of thit court in Mar-
bury T- Madison, to pronounce it unconstitu-
tional. Be it, however, appellate or original,
it it Incompatible with the organic laws of thia
court, with the principles and usages of law
in those appellate tnbunals from which we
have adopted our rules, and can have no sanc-
tion from precedent, unless by some silent un-
adjufUcated practice, which may have crept
into our proceedings without a due considera-
tion, and which hat been often decided is not
binding as authority, and is never too late to
correct when itt errors are discovered. S
Wheat. 321. 322.
There is no power so dangerout aa that
which can be traced to no definite or authorita-
tive source, or which is exercised without v
reference to some fixed principles; it it in tho
nature of that n'hich is assumed by any depart-
ment of govemmeut, to be capable of no other
limitation than such as it may choose to pre-
scribe to itself; while that which is conferred
by the constitution or statutes, is defined, lim-
ited and regulated in its exercise to the casea
specified, and in the mode prescribed. Such
are the appellate powers of the circuit and su-
preme courts of the United Statesj they are of
limited jurisdiction — necessarily incompetent
to act by cny prcro^tive or inherent power;
at the ercaturet of the Judiciftry Act, they an
HuMiaoif n Ai. T. Nixrat.
vet ftt Hberty to emdM any power over tha
praeesdingB of iaferior courti, by mhj generai
toperriiorj power, suoll u has been aesuined
bj tbe Kin^'i Bench and House of Lordi.
TMt superTiBion ia onljr bjr writ of error, or
a>ppeal, and aucli writ* aa Congreas bava au-
thorized them to uae; ao that in whatever CMe
they act aa an appellate court, it U bj special
•nthority, and can eiercite no other than what
la kppropriatel]' appellat*, aa coatradietinguiabed
from onginal jurisdiction.
In the present case, there aeeiiii to ba a mix-
ture and ezcesa of both, whether tbe mandate
And opinion are teated hj the rule* of other
eourls of appeal, or the acts of Congress.
The House of Lords aet aa an appellati
•ourt hj their own authority without an act
of Parliament, but have never assumed any
original Jurisdiction on appeals in equity
causes, or reversed tba decree of a Cbaacellor,
because an issue before him will not enable
Um lords to make a satiafsctory dnsree; they
mnand the cause for amendment (1 Bl. P. C.
tSl*] now aeries, *471, 477), or give tbe party
leKve to witlulraw his appeal. 2 Bligh P. C.
302; 8. P. 12 Uh. 12.
Such a courae would have been peculiarly
proper in tbia case; the only irregularity com-
plained of on this motion, was by the ap
pelUnts' otrn fault, in not making an averment
in their own petitions, which is admitted was
Kinendable, and ia so decided by the court;
and it cannot be denied that it was competent
to them to remand tbe causa for this purpose
(12 Wheat. 12), or permit tha appellanta to
withdraw their appeal, to enable them to amend
their own petitions, if tbe rourt deemed it in-
diapenaable to make a fina decree oi. us mer-
its. But it is mo«' conGdei My asaerMnl to m
■gainat all rules, and withou precedent, to re-
Tirae a decree and dtft.Lare all previous pro-
ceedings void for such a caiiae; no court of
origin!.! jurisdiction in equity can «nnul its
own decrees without a bill of review even for
error apparent; this has been tba law from tba
tinie of Lord Bacon.
Tbia court has no power to reviae ita own
decreea after the term expires, unless for cler-
ical errors; it can exercise no origioal jurisdic-
tion In this case; and that which ban been ex-
creiaed is not appellate, by any rultij which
define what appellate power is, and ita lawful
nmrae. So far from adjudicating any one
matter appealed from, or point of law or fact
presented by counsel, they have left every right
and claim of the partiea wholly unnoticed;
and though they have annulled every proceed-
ing of the Circuit Court, have not adjudged
May one order, or their final decree, to be er-
KMMOua in law or fact. But have done it for
tlM oatenaible purpose of inserting in the bill
■■d petitions, an averment of a fact which
would have been directed of course, in tbe
Clreuit Court, on suggestions of either party;
wnd solely to meet a contingent question of io-
tai law, which that court, in their solemn
opinion, declared could not arise in the cause,
•ad which the counsel on both sides agreed did
mat exist, and would not be raised.
g can be held to be the legitimate ex-
I of appellate power, aio volo sic jubeo
■tat pro ratina Toluataaj the opinion of the
conrt pndudas any other conclusion; for If
tbey had appellate jurisdiction, they were
bound to give tbe record appellate inapectim
and consideration; not having done so, their
opinion 'and mandate is their judg- [*K3t
ment that there was no caae before them for
tbeir appellate action.
This presents another view of this eaaa
which 1« alarming aa a precedent. This court
haa no more power to declare and consider the
proeeedinKs of a circuit court null and void
than a district, circuit or State court has, unless
they are before them by an appeal, ao-
cording t« tbe act of Congress [ excepting Bueh
a case, tha powera of all these courts areequaL
All are bound to respect a judgment till ap-
pealed from, however erroneous; while any-
one may disregard it, even as prima facie en-
denu of any fact professed to be adjudicated,
if tba judgment is void. If the course of this
court is consistent with the rules of law, then
the final decree of the Circuit Court would be
as much a nullity after the expiration of the
five years limited for an appeal aa it is nowj
and if a nullity in this court, it must be so in
every other. If tbe want of an avermen of a
taststor's domicile in a bill of equity nulli&ea
ail subsequent proceedings, against an executor
for an account, there are many void decreea
on the records of this court which State courts
may declare ao by the same power with which
this court iias acted in this case.
This rule of action must be taken to be tliat
the bill must contain direct averments to
ontingency which mvf
to questions of fact or
lient to aver a fact, from
which the necessary conclusiona may be drawn,
though the parties have taken issue upon it in
both courts, and thus admitted that there waa
a proper case for the exercise of their respective
jurisdiction. The mandate admits of no other
conclusion than that the action of the Circuit
Court on a bill or petitions like the present, ia
wholly without legitimate power or jurisdic-
Lion, and tbeir whole proceedings coram non
judice; if ao, it follows that their decree ia not
a judicia' act, entitled to the least respect in
any court. If this court can declare it void
without appellate re -examination, it is becauta
it is an extrajudicial act; and surely no
one can contend that the extrajudicial pro-
ceedings of this court are entitled to any
more reapect. As if they should award a. man-
damua to a Secretary of State, reverse tbe
judgment of a State court in a case not within
tbe twenty-fifth aeetion of the Judiciary Aet,
or take cognizance of an original 'bill [*6SS
in equity between Individuals. Let it once be-
come a settled rule that the want of an aver-
ment like the present is fatal to jurisdiction!
tbe proceedings of no court can stand the test
of a scrutiny so severe as has been applied to
With the precedent now established, the
judgea of fitata courts will look with micro-
scopic eyes at our records, as well aa those
from other States, and be sure to find, at least
to their own aatiafaction, soma defect whicli
might have bean fatal on special demurrer or
abatement, and in their turn declare our decrees
and judgments void by the lame summary
power- Kor will tbs consefuenoaa stop bei*i
meet every poasibte i
arise in the proofs, as
law; that it ii
BM
Sdpkbhi Coust or ina Ukited States
1839
the federal courts will exercise the same power
over the jud^ents of Slate courts, without
•ppe«l or wnt of error; their prcH-cHings, in
casea not within their judicial cu;:nlzAnce. arc
■J much nullities as those of a Circuit Court,
And may be declared void by thia court on the
aame rule u is now adopted. Let the directions
of the Judiciary Act be Dulliflcd by following
np this precedent, the appellnle power of tlii*
court become* absolute, arbitary and illim-
itable) and all other courts may be justified in
following the high example-
There is yet another view which must be
taken of the judgment now rendered. The
court has ordered the averment of domicile to
be made at the death of the testator in 1S24, at
the mailing the will in 1701, "and in the inter-
mediate period (if there was any change), so
that the elements of a full decision may be finally
brought before the court." Each averment
being then considered as equally inii'ipensable,
it must be deemed that the omissior of either
ia equally fatal to the proceedings o the Cir-
cuit Court; each must, therefore, be cuunidered
as having a vital bearing on the construction of
the will, or there would not have been a posi-
tive order to insert them. Such an orilrr niay
indeed afford "the elements of derision." Uiit
must protract it till many of the piirtieii In the
auit shall have passed a»ay. When thi! fji.'l
of residence, at different timet durini; tliiriy-
tbree yeurs, shall have been ascertained in ^}ie
Circuit Court, they must then decide in wfiiit
Eae the law adjurlgca the domicile to li;ii'e
n at the time of each clianf^ of resilience;
then arises the question, by what law Die will
ia to be interpreted. As the case of Robinsun'n
Administrator v. The Bank is oow oveiiuleil,
BS4"] the law of the situs of the property 'of
administration or making the will, which is
Philadelphia, is not to be regarded, the law of
the domicile must govern ; but the court are left
in utter darkness as to the rule by which to
apply that law, should the domicile appear to
have been in different places at difi^erent times.
As the Circuit Court baa hitherto been so un-
fortunate as to have been ignorant of the effect
of the domicile in relatioa to a will of personal
property, and as one of the judgea has the
misfortune to dissent again on the subject, it
ii much to be feared that, as there may have
Iwen, possibly, three or more places of domicile
fai so long a period, at least one, if not more,
final decrees may be reversed, because the
proper one may not have been designated in
their opinion.
Hitherto the law of the domicile at the death
of the testator, has been deemed the rule; but
this point must now be considered as unsettled,
or the court would not have directed its aver-
m«nt at any other time, as indispensable to a
full decision of the cause; as it remains for this
emirt, at some future period, to declare the law
m points so doubtful, great delay must ncces-
Mtrlly take place belore It can be known by
what law the will must be construed; next,
what the provisions of that law are; and
laatly, what ought to have been the first inquiry
—whether the domicile of the testator is, or is
■ny possible event can be, in any way, a mate-
rial question in the cause.
Before the decision of this case, it was eoD-
■tdered tO b* > lettled principle that a final
lao
decree in chanrery was of equal efTect U a
jucl/tiient at law lill reversed. 8 Wheat. 113
That the sulficiency of an avcrmctit in a decla-
lation, bill or petition, was a qup^tion of merlta
eUBminable on demurrer, at the heiiring, on
a motion in arrest of judgment, or by writ of
error or appeal; but in no case was a queation
of jurisdiction, unleia for the want of partiea
or a proper cause of action. That if there
was a substantial cause of action alleged, all
defects in the pleadings were cured by a verdiut
or decree, if not pleaded or demurred to for
cause; and that no eppeltnte court could revcree
a final judt.'ment or decree, for any error in
I'iilier, on the proimd of an Jnsufhcicnt aver-
ment, if the p'uinliff's esse was one that
wou'd entitle him to a judgment on a gi neral
Ra the law was taken by the counsel for tiie
appellants themselves, and so it would have
remained, had not the court 'prevented [*SS&
them from arpuing the points in their printed
brief, and yielding to the suggestion of one of the
jud;^, decided that they would examine no
question in the record, nor hear any argiiulPot
on any point except one, which was not stated
at the bar in either court, and may have no
bearing on the rights of any party. This ia
another innovallon upon the settled uniforiD
course of all appellate couris, which mokes
this precedent an alnrniin)j one.
It is an estHblislied rule, foun^led on the
Koiinilcst principle of justice, that a party shall
not be permitted to reierse a juilsjiuent or de-
oree, on an objection not made in the court below.
Upon an objection being mode in the House of
l.orils that en account had not been tnken ia
the Court of Chancery, and it app'-ariiig that
none had bfen called for previously, by tha
party making the objection, Lord Eldon ob-
served "if this cause had been iieard in th*
Court of Chancery or Exchequer in England,
no client could have induced a counsel to maka
that a point at the bar of this House, under
such circumstanci'Bi because such counsel hav-
ing been previously conversant with the causei,
would have known that as it was not mad*
below, It could not Ije made by way of appeal.
Had this cause been heard before me, and had
I presided during the argument of the appeal
sgainst It, under the circumatnnccs that have
occurred, I would not have allowed counsel to
make the point at vour lordships' bar." 2 Sch.
& Lef. 710, 712, 718. ^Vhen the opportunity
of objection is passed by In the court below, it
Is taken to have been waived (2 Sch. A. Lef.
713; 12 Wheat. 18; S. P. II Wheat. 20D, 210,
eU; 7 Peters, 08; 2 Binn. 1G8; 12 Serg. &
Rawle, 103), unless the defect in the record ia
one which could not have been cured or
amended in the court hclow, if the objection
had been made before it was removed. 4 J,
R. e02; 14 J. R. 660; 16 J. R. 353; IS J. R.
S58, 653; 2 Dow.- P. C. 72. The names and
judicial ripiitation of the American jurists
who have ever acted on this rule, and of Lords
Eldon and Kedcdale, may with propriety b«
referred to, and invoked In support of a dis-
senting judfie; and the rules and decisions of
this court, tfll this time, may also be called to
his aid.
Had the present appellants demurred to th«
bill, objected in tlM picadinga, or at the bear-
UAtktMir rr AL. T. Kixox.
»3«»] Ing, on tbe ground now taken, "tha de-
fact, if mny, would have been cured In the
Murt below by an amendment witbout eff^t-
ing the proceodlngt; but here, it would Beem
that there can be no aniendment ordered with
out anmiDing everything heretofore done In tbi
canae. If it wsi so Intended bj- the appellanta,
they have delayed this objection most protltably
for the purposes of vexation; it has been re-
reived under circumstanees which would have
prevented it being listened to in any other appel-
late court, but which have entitled it to Javor
here. It is not made by the re-'pondcnt, whom
■lone it concerned to reverae erroneous procced-
inge by the Hppellanta, who were complainnnts,
egainit him; jf be chooses to waive defects
in their petition, they could not be injured
thereby, tney did not ask for an amendment in
beire, or the petition of the party who obtained
a decree in his favor. The appellante asked
a reversal and a decree In their favor; they hare
obtained a reversal indeed, but it is of every
step they have taken to submit their rights to
the flnal adjudication of this court; the cause is
open to indeitnite litigation, by each of the three
hundred clatmants to the fund in the hands of
the executor, as well as those now ordered to be
added to the suit, who may be not the least
troiiUesome, at least to the appellants. A prin-
ciple, loo, has been established, by which each
claimant is permitted during the five yeara al-
lowed for appeal after a final decree, to reserve
bis objection to the pleadings till a convenient
lime, and then obtain reversals on a summary
motion, for defects tbnt are amendable on ap-
Clirstion in the discretion of the Circuit Court,
y the gineral rules of courts of equity and taw,
•nd by right, under the provisions of the Ju-
diriary Act.
There can be no course so utterly subversive
of equity, nay, of common justice, aa to hear
parlies in an appellate court, on points made
under circumstances like the present; it is one
to which I can never consent, and against which
I shall deem it a duty to suitors to protest on all
similar occasions. I will never, while sitting
in this eonrt, reverse a decree upon objections
which a court of chancery or exchequer, on a
cause regularly before them, would not in the
txenrise of their original jurisdiction, or the
Ronse of Lords or the Court of Errors and Ap-
peals in New York would not permit counsel to
arpir on eppeul. Nor will I, in any way, ad-
■ST*] mit that any appellntn 'court can, in
the le^tintatn exercise of their jurisdiction, ren-
der a judgment of reversal on any ground on
which thpy would not be bound to hear an ar-
gument of counsel. It is a great hardship on
partie* to have thdr judgments set aside on
teehnieal objections mtsed at the bar; but the
(Tievance will become .atolerable, if the course
of the court should l>e :ucb aa to do it when
they are firat Bu^ested rom the bench.
Let an objection like he present, however,
roue whence it may, I consider it as purely
technical ; which I eanno sustain consistenly
with the respect due to th<i solemn and iinani-
ntous decisions of this court in Harding v.
Handy, and Rcnner v. The B»nk of Columbia,
with many otht-rs founded on the most imniu-
tabte maxims of the law. They settle the rule
that the cfmclusion of fact drawn from a cir-
nmatanttaJ Kvenoent ia sufficient to aupport r
decree in eqnity, and forbid me from disregard-
ing the evidence which has been admitted
without objection, and now forma part of the
record before me for judicial inspection, merely
because the subject matter of that evidence was
not averred in the bill or petitions of the claim-
ants. And when to this high and unqueationed
authority Is added the 32d rule of this court, I
find safe rules for m^ guide, which would be
violated by any sanction given to any proceed-
ing in opposition thereto. That rule is, 'in all
cases In equity, etc., no objection shijl here-
after be allowed to the admissibility of any dep-
osition, dead, grant, or other exhibit, found la
the record as evidence, unless objection was
taken in the cotirt below and enter«i of record,
but the same shall otherwise be deemed to have
been admitted by consent." I feel bound to
examine all the evidence in this record, as it i»
found without an objection; and as counsel and
parties are precluded from now making any, li
IS my duty to give it its full effect on the ques-
tion of domicile, aa well as any other whlcb
may be relevant to the cause; anv other couiae
would, In my opinion, annul this rule, whiek
counsel must respect, and which I had thought
the court would adhere to, by hearing an argU'
ment on a point arising on the evidence, mad*
by the counsel of the appellants in the briel
presented for our judicial action.
The order for tne admission of new parties
deserves some notice on account of the manner
in which it was made, which *ia be- [*5SS
lieved to be unprecedented. Their names wer*
not in the record, they were in no way beforti
the court, but had employed counsel, who have
ouB as being heard as amici curite, in order
to point out some irregularities which, as they
conceive, w.ould authorize the reversal of tho
decree, so as to permit them to make an appli-
cation to become parties; stating at the same
time that the Circuit Court had very properly
refused such application by a bill of review.
This court promptly and unanimously refused
to hear them in support of their motion, yet
have granted what they would not permit to bv
moved lor by the counsel of the new parties,
and of courne without motion; for the eounsel
of the appellants who signed the brief as rep-
resenting three individuals and others, on being
called on by the counsel for the appelteei In
open court to state for whom they appeared,
declined an answer. In the Circuit Conrt it
may not bo within the line of duty to inquire
by what authority and on whose application
these parties have been ordered to be admitted
as litigants in the cause; so far as respects one
of the judges, he will obey the mandate. But
this court he may, and does make the inquiry
^pectfully, but as a matter of right, and fear-
lessly insists, that it has been done in violation
of the best -established principles of the law of
appellate courts. As the court would not hear
the motion of the counsel of these jpartiea, tbey
could not be Judicially informed that they de-
sired admission into the cause; a fortiori tbey
lid not judicially decide whether their ease
s one which gave then a right to admission.
Their judgment and mandate have therefore
been given on extrajudicial knowledge, such aa
appellate court can receive or act upon, aa
...B wholly dehors the record, and related tono
party to the appeal, Qr anything appealed fr«k
538
BcPBEKi CooKT or TB* UniTiD States.
US*
In luuing their order, founded on ancli
knowledge u they eho«e to receive, the eoort
muit have taken a very partial viaw of the
S.pera preKnted to them for their collateral
spection; had thejr been judicially examined,
or their contents Imown, it would have been
apparent that the case deserved soma delibera-
tion at least. By their own edmiBsion, these
p»rtl«i had full knowledge that the fund they
claim^ waa in the hands of the executor in
Pennsylvania, yet their first application to be
admitted as parties to this suit was ten years
B80*] after the death of 'the testator, and
nearly six months after the lical decree. That
after the failure of their petition for a bill of
review, they had filed their original bill in the
Circuit Court, having previously applied to the
Orphan's Court of Philadelphia County (which
is a court of equity and of record, before whom
the administration account was in a course of
settlement] for an order or distribution in their
This court also knew judicially, for It ap-
peared in the answer of the executor in this
case, that he had interpleaded and prayed the
protection of the court; for which purpose they
had made an order (also in the record] that all
claimants of the fund who did not appear by a
given day and present their claims, should be
barred thereafter; which order was sanctioned
by the practice and rules of all courts of equity.
Theae parties suffered the time to elapse long
before they thought proper to make any claim,
without in any way denying notice of the pend-
ency of the suit, or accounting for their delay
in applying to become parties before the final
If any court could be justified in admitting
them afterwards in a case circumstanced like
this, it most assuredly could be only by the ex-
ercise of original jurisdiction, by bill of review,
and not by any appellate power over this
record; these parties were not and could not be
appellants from a final decree to which they
were not party nor privy; nor could this court
lawfully reverse the decree on new matter, or
for any cause appropriate to a bill of review.
Ai to these persons, there was no case in this
court; it could have no appellate jurisdicLion to
hear and determine on anything; and the pro-
ceeding was wholly coram nan judice, unless it
could exercise original jurisdiction over the
parties end the subject matter, at a case origi-
nating in this court.
Thus considered, I feel It a duty to declare
that the mandate to the Circuit Court, ordering
these persons to be made parties, it without
any authority of principle or precedent, and
alUiough I shall obey it in that court as the
command of a court of the last resort, yet in
my best judgment, feel constrained to pro-
nounce it inconsistent with the best- established
rules and usages of law, and a violation of the
eonatitution of ui appellat« court.
S40*] *This cause came on to be heard on
the transcript of the record from the Circuit
Court of the United States for the Dittrict of
Penntylvania, and wat argued by counsel; on
consideration whereof, it it ordered, adjudged
•nd decreed, that the decrea of the said Circuit
Court in tha preiniMa im, and hereto la x*-
»1
versed and annulled, and that tha caoaa b« n-
manded to the said (Srcuit Court for farther
proceedings; with directions to the said court
to allow the bill and the petitions of the claim-
ants to be amended, and the answers and plead'
ings also to be amended to conform thereto,
and proofs to the new matter also to be taken;
and with farther directions to allow any other
persons or persons, not now parties to the pro-
ceedings, who shall claim title to the funds in
controversy as heir or heirs-at-law or repre-
sentatives of the testator, to present their claima
respectively before the said court, and to make
due proofs thereof, and to become parties to
the proceinlings, for the due establishment and
adjudication hereof. But <he proofs already
taken in the eause are to be deemed admissible
evidence in rigard to all such persons, not now
parties, who shall claim title as aforesaid, and
become parties in the cause under this order;
and such other proceodinga are to be had in tha
said cause by the said court, as to law, equity
and juitice abail appertain.
ABRAHAM KNAPF et al.
Action of indebitatus assumpsit — hill of par*
ticulars— power of agent to bind a corpora-
tion— special contract — evidence, instruction
to jury.
District oC Columbia. An action of Indebitatus
Canal. Tbe deteadsnts pleaded the ceneral Issue,
and called on the plalatlfs for a bill of parUculars.
diet for (be plslDtrrrs, was staled Id the bill of
Ksrtlculars to be, "detention and damage luatalned
ir want ot cement on locks No. 5 and S.
There Is ao douDt thst a bill of partEcnlsrs
should l>e BO ■peclQc as to Inrorm the detcndant.
aubstandallT. on wbat the plalDilTs acIloD la
founded. Tbla Is the object of tbi: uUI, snd if tt
fall short of this. Its trcdencr muit be to mtslead
the derpndint rather than to enllEhteD him.
As the bill of particulars la filed before tbe trial.
It Is alwari In the power of the defendant to object
It to" be amended before the commencement of the
trial ; and If this be not tt>a nnlr mode of takiog
advanUge o' — •*'* — '- ■■- ■ " " '" — "'-'-
the
Although this 1
I Jl, it It certainly
rtlcula:
it aneclh
hich tbe
__]d (ullT tbe grounds >n which tb*
B Iain tills claim damaiceB. It aufficlenur expresses to
le defendants that the claim arises tor want Ot
cement on the locks Ko. 6 and «.
Tbe ancient doctrine that a corporation can act
in matters of contract only undiT Its seel, has been
departed from b; modern decisions ; and It Is now
conaldered that tbe agents ot a corporation ma;,
Noti.^Ab to corporation belnB hound bj parol
contracts of Its SEenta see note to Uechsniea' Bank
of Aleiaodria v. Sank ot Columbia. 0 Wheat. 8a«.
BUI ot particulars, effect of. Plaintiff cODdDed
to demand stated In his bill of partkulira. Bank
of United Stain v. Lrman, £0 Vt. 686: B. C. X
Blatcbt. 287: Wllllama T. Bloelalr. S McLean, £6»:
Krisa V. Setlgman, B Barb. 43fi : S. C. H Uow. Pr.
425 ; Smith v. Hlcks^ Wend, 48 : Dubola v. Del. k
Hod. Canal Co. 12 Wend. B84 : IS Wend. 87 ; He-
Nalr V. Ollbsrt, i Wend. B44; Seaman t. I<aw,
t BMW. 881.
u Ohio Canai, Compani v. Khapp n u.
at
I vell-irttl>d principle that wbtn > ipe-
inet has been perrormed. ■ pLalntlll may
I'friTct. OB the BufBcIoTiCT ol' trMrnet : but
II' linn to ihe Jury eUould he kIvi'd except
]i. Ilin court ma; be L-a'1ctl upon to Initruet
;C of P'
o deternilDe
Uistricl of C<
Ttiia »'a9 an aition of anaiimpsil, instftuted
originn'ly in the County Court of Montgomery
Cniin-.y, in tlie Rtote of JInryland; and liy
•^■ement of the parties trnnsferred, wilh all
the pleadings, dep "sitioiis and olher proceed-
5<S»] io^ therciti, to the Circuit ■Court of
the United Slatei for the Co-.inty of WaBhing.
ton. in the DiKlrict of Columbia.
The deelaralion enntained nine count*: the
lirst. second and third, for ^oods aold and de-
livered: th« fourth, fifth, eight and ninth, for
work, labor and eprviceB, and for materials
furnished, etc.; the Ri\th, for money paid, laid
out and expi-nded. and for money had and re-
wired for the itw of the p'aintilfB; and Ihe
teTtnth, an iiii'imnl compnt'iasent. The de-
frndanta pleaded tton aisumpsit, and fisue was
joined thereon. A rule having been entered
on the pInintilTs to file a bill of particulars, the
ume wan duly filed, setting forth all the items
of rlaim against the defendanta.
The plaintiirs. in the Circuit Court, had, on
the 4th day of May, IR2!). entered into articles
of agreoment with tlie Chesapeake and Ohio
Canal Company to eveciite certain sections of
the canal then being mnde hy the company, ac-
tordinf; to certain spec ideations before agreed
upon by the parties. Under this agreement
the plairtilfB coniitrucled eight locks on the can-
al, and this action was brought for the value
of the work done, and materials expended on
the same, and for other matters which hod
arisen under the
and discussion by the counsel and
the couit in the argument and decision of the
cai'!^, wns the following:
"To detention for want of cement at proper
limes at lockn No. 8. 15. IS, IT, 18, and 90;
damages sustained in consequence of such de-
tention, (too dollars.
The defendniits in error read in evidence the
^leridf^tion for lock No. 8, and their offer to
contract for the ennstniction of the said lo?k,
on the terms therein slated; and also a piipiT
containing their proposal to execute the said
lock, Bccordin)! to the plan and the specifica-
tion; and they proved that the proposals were
Bpeepled. They also read the apreement be-
tveen them and the Canal Company, dated the
4th of May, 182», for the construction of the
work pursuant thereto; and also like specifica-
tions and proposals, and their acceptance by
the parties, for the execuliod ot the other eight
locks, and the contract for the same; the ex4-
eiilion oF the work to be done by them under
the said eontract being also proved. The
'perilicstions pnrtjcularlv describi'd the work
to be itont', the materials *to be used. [*64S
and the manner and time of its exeeiition. Ill
the spi cifications there was inserted the follow-
ing;
"It is believed that hydraulic cement, snit-
able for the construction of lock masonry, may
be obtained on the Potomac, a« far east a*
Shepherdstown.
"Its average eoet, it is presumed, will not
exceed 41) cents the bushel, delivered at the
shore opposite the locks; should it be found
not suitable for the purpnse, and it become
necessary to Import the New York hydraulic
cement, or Parker's Roman cement, the presi-
dent and directors will furnish to the contract-
or cement so imported, in good season, say by
the 1st of May, 1820, at the price of 40 cents
the bushel, which shall be deducted from the
twra to be paid for the lock if the contractor
furnished the cement himself. The extent of
its use, if it be so supplied, may be limited by
tlic engineer to a certalii distance from the face
of the wall."
The proposals stated the prices at which the
nork was to be done; and the agreement set
forth stipulntions for the performance of the
work, and the sums to be paid for the same,
nith other matters to secure and deline the ob-
lipations of the parties thereto.
The plaintiffs also offered, and read in evi-
dence, the following reaolution of the Presi-
dent and Directors of the Canal Company,
passed the 2d day of September, 1820:
"Ordered, That the board will furnish water-
lime to BUCh contractors for masonry as shall
provide houses to receive it, to be delivered at
the river shore, opposite to their works, at 40
cents per bushel."
And also the following resolution of the said
president and directors, passed the 20tb of Jan-
uary, 1830:
"Resolved, Tliat although this board has stip-
ulated to supply the contractors with water-
linie, yet the hoard will not be held responsible
for any damage arising from the want of that
"To the thirty-second annexed Interrogatory
this deponent replies thnt the plaintilTs wera
very greatly hindered in their operationa by
the want of cement. This deponent haa no
written memoranda of the time which the
plaintiffs were so hindered, but believes that
the time lost by the failure of the Me- ['544
fendants to furnish cement, was not less than
one third of the whole time from the Ist of
April to the 1st of August. 1R30; and this de-
ponent can further slate that the opinion of tha
late resident engineer, Dnniel Van Slyke, Esq.,
agreed with that of this depbnent above stated,
as to the proportion of the time lost by the
plnintilTs for want of cement. Orders were
given to the plaintiffs not to dl.icharge their
m'n while idle for want of cement, but to re-
tain them all under pay until a supply could
be procured. This order had not reference to
any one particular time when the plaintilTa
5M SUPIEUE COCBT OF I
were hindered for wnnt of ceTaent. The depo-
nent M'sa directed by the resident enj^ineer to
communicate the order to the plaintilTs. end
did accordingly wjmniiinicate ft to them. This
was the usual course of trRnsmitting ordcri to
the eontractora for the difTerent works on the
Chesapeake and Ohio Canal. This deponent
received the same order at several dilTerent
timM from the president of the company. It
waa reiterated to the plaintilTs at various times,
aod was, as this deponent believes, strictly
complied with by them. This order, as well as
that referred to in the answer to the twentieth,
was, according to this deponent's recollection,
Terbally given. This deponent cannot state
with accuracy to what extent the plaintiffs
were delayed lor want of cement previous to
the 1st of April, but thinks there was some
eoniiderahle for want of cement before that
time. From what this deponent recollects of
the number of men and teams employed by the
plaintiffs, and the high wages paid to labourers
generally, and more particulars 7 to mechanics,
and the expense of subsisting men and teams,
this deponent is fully convinced that, including
the wages of labourers and mechanics, the sub-
sistence of men and teams, and the wenr and
tear of tools, the expense of the piaintilTs must
have averaged, while hindered for want of ce-
ment, from ISO dollars to 176 dollars a day.
The deponent cannot say with exactness what
number of days the plaintifTs were compelled
to suspend their operations tor want of cement,
but thinks the whole detention may have been
equal to from thirty to forty entire days."
And also the answer of Milo Winchel, to an
interrogatory on the part of the plaintilTs.
"To the ninth interrogatory, this deponent
answering, says that the defendants delivered
the cement very irregularly, in small quanti-
ties, which caused very great hindrance and
54S*] toss *of time and expense to these
plaintiffs, by keeping a very large force of me-
chanics, common labourers, and teams, lying
idle and upon expense of wages and board,
whilst waiting for cement; the precise loss
and damage incurred deponent cannot state,
but, from his beat recollection, would say that
the loss of time thus incurred from the Ut of
March, 1830, until the completion of the said
locks in August, therefrom, could not be leas
than forty days, at an expense to these plaintifTs
of from 160 dollars to 170 dollars per day; be-
sides the damage waa very serious by delaying
the work until the sickly months of July and
Auguat, which was the cauae of a great ad-
vance in all kinds of labor, to induce laborers
to remain upon the line of the canal at this
•eason of the year; all this expense and risk
might have been saved to these plaintiffs, had
the cement been furnished as agreed on the
part of the defendants, which would have en-
abled the plainti Js to have completed the whole
of their work early in June, 1830."
And also the answer of Henry Smith, to an
interrogatory on t^e part of the plaintiffs.
"To the eleventh interrogatory this depo-
nent will answer, that much delay was occa-
sioned to the' plaintiffs by the non-delivery of
cement in quantities to meet their demnnde;
the consequence waa, they were compelled to
keep their bands under pay without lal>our, and
deferring ths completion ot thur work until
114
the more sickly season, when labour, If procnrrd
at all, was obtained at an advance from twenty
to thirty-three per cent. It ia believed by this
deponent that if sufficient quantities had been
delivered in season, that the locks would have
been completed by the 4th of July. That, at
the time locks No. IB and SO were in protest,
the plaintiffs often complained of a scarcity ot
cement, and one particular time they n-ere lyin{
idle tor a number of days with a large Torcc o<
hands, and, as deponent understood at tlie time
they were all under pay from the ptnir-liff*
The number of dtiya alluded to alMive is he
Ueved to be two weeks or more: and many
other tiroes deponent knows of there Iviiig a
want of cement, but the aggregate cannot be
positively stated."
And also the answer of Moses Randal, to an
interrogatory on the part of the plaintiffs.
"To the eighth interrogatory, hereunto an-
nexed, tliis deponent, 'answering, says [*&4C
that these plaintiffs were greatly hindered and
delayed, nearly the whole time they were em-
ployed in building these locks, by the irregular
manner in which the cement was deliven-d,
and that the amount of luch hindrance iipou
locks Nos. 15, 16, IT, 16, and 20, from the laL of
March, 1S30, till their completion in August
following, was not leas than forty entire days,
at an expense to these plaintiffs of 170 dollars
per day. There were eighteen days at one time
in which the plaintitts received but two small
loads of cement for the use of two hundred
men, being inauiTicicnt to supply them one
day; besides the damage waa very serious by
protracting the work until the sickly months of
July and August, which was tlie cause of a
great advance in all kinds of labour, to indiire
the labourers to remain upon the line of the
canal at this season of the year. All thia risk
might have been saved to these plaintiffs bad
the cement been furniahed as promised on the
part of the defendants, which would have en-
abled the plaintiffs to have completed their
whole work early in June, 1830j and deponent
further says that the plaintiffs suffered gre:it
hindrance and loas by the intcrfi'rence of the
work under Messrs. Bargy and Guy, on section
18, by the breaking of the face atone, by coming
in contact with their carta and wagons, and by
the men being driven from their work many
times in a day to escape the dangers from the
heavy rock blasting upon said section; the dam-
age done to the plaintiffs during this interfer-
ence deponent cannot precisely state, but knows
it was great. This deponent recollects that, in
one instance, on lock 18, a large rock was
thrown against the wing wall of the lock, and
BO deranged several courses of their work as to
require relaying; in several other instances, the
work of the plaintiffs, on locks 17 and IS, waa
deranged by the falling stones breaking and
displacing the cut stones in the wall. The
plaintiffs remonatrated againat those injuries,
and threatened to abandon the work, in conse-
quence of which, Daniel Van Slyke, the agent
of the defendanta, agreed to indemnify them
against ali damages arising from this source."
And also the answers of Benjomin Wright^
to interrogatories put to him by the plaintilTs.
"To the ninth interrogatory he aaith that he
knows that in many cases the cement was ver>
badi in others the aame was damaged by hav-
Petera B.
Tui CniSAPUKE AND Onio Caral Compart t. Kmapp ct al
iif been allowed to ^t wet bpfore deliTcrr
HT'l 'to the pUintiffs. That it w>s fur-
nished bj the defendants in aroall quantities,
knd in a very irregular manner; and in many
waea not furnished at the times agreed upon
between the plaintiCTs and defendants; it being
Sircaaly nnoeritood between the plaintitfa and
endanta that the cement should, at all timet,
bs fundihed »m it was required for the proaecu-
tion of the work.
"To the tenth interrogatory he aaith that he
blows the plaintiffs were put to serioua Iosb and
damage, in consequeni^e of the failure of the
defendants in supplying cement, as stated in
the last interrogatory, the said plaintiffs being
obliged to keep their labourers and mechanics
hi pay when they were actually unemployed,
■aid plaintiffa being in the daily expectation of
receiving the said cement; which state of
thlngt continued, in some instances, for a week
together, and at others for two, four and aii
daya; and deponent further knows that,
conaequence of such failure on the part of
defendanta to furnish the cement at the periods
agreed upon, the work of the plaintiffs was
■eceeaarily protracted to the aiekly part of the
Mftsun, which nEcessarily eansed a great In-
crease in the wages of the mechanics and la-
bonrcta to induce them to remain during the
Mid period. Deponent further aaith that he
knows that the president of the company, on
BiAny oecaaions, directed the plaintiffs not to
MmrafuM their men, stating, from time to time,
that ha would have cement furnished, which,
in man^ casee, was not fumiahed in eompliance
with lua aaaurancea; but deponent cannot say
what waa the actual loas incurred by the
plaintiff's, although, as above stated, ha believe*
It to hsve been very serious."
Dpon which teatimony the plaintilTa
the court to instruct the jury, and they
tbe said prayer, instruct the jury, that If the
Jury believe, from the saiJ evidence, that the
defendants had, on the 2d day of September,
ISZB, and from that time tltt the 20th day of
January, 1830, contracted with the plaintiffs
to fnmiah them with cement, etc:. In due time,
etc, and that the plaintiffs, expecting that
luffieient aupplica of cement to go on with the
•ork would be tumished by the defendants, as
defendants had so engaged to do, hired a large
Btunber of hands, and brought them to the
bieks, and wben the defendanta had lo failed
to furnish the cement, kept the aame hands
idle, waiting for eement, on the defendants'
MS*] 'desire that they should do so, in order
to b« ready to go on with the work, and paid
them their wages while ao waiting; then the
pUintiffs are entitled, under the count, for
noney laid out and expended, contained in this
declaration, to recover the money so paid to
said handa during such periods. But that the
pisintiffs are not entitleo to recover for wages
paid to their workmen on account of a de-
■eieney of cement after the said 20th day of
January, IB30, unless the jury aUall be satisfied
by the said evidence that the said resolution of
the board of directors, of the 20th of January,
IS30, was rescinded by the said board, and a
new contract entered into thereafter by the de-
fendants to furnish cement to the plaintiffn.
and the anbaeouent failure on their part so to
fimiah It, ana an agreement alao to pay for
the wages of tfab plaintifTs' workmen, whila wt
waiting, and ao forth.
The defendants excepted to thii instruction.
The jury found a verdict for the plaintiffs
for f20,707.S6, on which judgment was entered
by the court, and the defendants prosecuted
this writ of error.
The case waa argued by Mr. Coxe and Mr.
Southard tor the plaintiffs in error, and by
Mr. Key and Mr. Webster for the defendanta.
Tlie counsel for the plaintiffs in error con-
tended that the court erred in giving the in-
struction!
"Because there waa no notice or intimation
given by the plaintiffa to the defendants, in
their bill of particulars of charge against the
defendanta for money laid nut or expended in
the payment of wages to workmen while kepi
idle waiting for cement.
"Becauae the court, in the said Inatruction,
haa adjudged on a matter of fact, and told the
jury that the defendants had engaged or con-
tracted to deliver cement at certain times and
prices, and bad failed to furnish the said ce-
ment; which said facts ought to havo been
left to the jury upon the evidence.
"Becauae, admittiuB the existence of such a
contract, and the failure to comply therewith
on the part of the defendants; the payment of
wages by the plaintiffs to their workmen while
idle, waiting for cement, and the loss thereby,
could only oe 'recovered in a distinct [*b4>
action by the plaintiffs against the defendant*
for the breach of such contract.
"Because the court, in the said Inatruction,
has submitted the fact of an agreement on the
part of the defendanta, to pay for the wages of
the plaintiffs' workmen, while ao waiting and
idle; without any evidence of such an asree-
ment being proved or offered to be proved.
Mr. Coxe, for the plaintiffs in error, stated
that the amount of the aum originally claimed
by the plaintiffs in the Circuit Court, waa
(141,000 and upwards; and moat of the Itema
in their claim were rejected; so that the de-
mand waa reduced to comparatively an incon-
siderable aum. It waa upon the instructions of
the court, which are for examination here, that
the recovery was had by the verdict of the jury.
There was a contract in writing between th*
partte*, and the evidence proved a full per*
lormance of every part of it in every particular,
by the plaintiffa in error. There were some
defects in the work, and tn the manner of its
performance, whith operated very extensively
on the claims of the defendants in error. Some
modificatioua were made in the agreement of
larties; tome extra work was done, for
whicfi claima, opposed by the Canal Company,
ere made; and these were rejected,
■^he instruction, now under conai deration,
hich was excepted to by the plaintiffa in er-
1. Becauae the claim which It aanctions ia
not in the bill of particulars. The bill of par-
ticulars states the claim to be for "detention
and damagea," in consequen-s of such detention
for want of cement; and the instruction au-
thnri/es the defendants in error to recover be-
fore the jury for money Isid out and expended
on the count in the declaration; the money
having been paid to their band* whila waiting
for the c '
SuPiEME CauBT or rm UritD) Stateb.
Tb» campBiij' had not agreed to fiimiiih
Mment. There waa no expresa contract to do
•o. The aupply they were to fumiBh deperiiipd
on their obtaining the artiele; either on tlie
canal, or in New York, or elsewhere. It Was
■ pro^ition, whieh, having been accepted, was
not binding unleM the meani of executing it
were procured.
TU* waa the atate of the arrangements be-
tween the parties before the time limited in
BBO'I the contract expired; and it waa 'not
after warda renewed. Thui, on the evidence,
there was no foundation for the instruction.
The proof to establish it failed. The evidence
^owed that there was not a deflcieney until
after tbs 30th of December, 1829. The de-
flciene; which took place in the spring and
summer of 1830, couM not be made the sub-
ject of a claim.
The whole instruction rests on the asiump-
tlon that the monej was paid at the instance of
the company. There was no evidence of each
a request, and the court so decided tn their
previous ruling on the trial. Cited, Angel on
Corporations, 60, and the cases collected.
By a reference to the charter of the company
under the Virginia law, the power giren to the
company to act, and the manner in which con-
tracts binding on the company ere to be made,
will be seen. The agreements which are held
to bind the company, in this case, do not con-
form to thoee provisions. No contract is to be
Inferred from the confessions, or the casual
eouveraations of the directors, or any of them.
7 Cowen, 462.
The Circuit Court left it to the Jury to in-
ter that [he contract had been rescinded, with-
out a particle of evidence; and they left it also
to the jury to inter a new contract, when there
was no testimony to sustain it. The claim to
recover on the count for money laid out and ex-
pended, ia against the authorities. Cited, 1
Tidd'a Practice, 637; 13 Peteredorf, 80; 3 Stark.
loss, 10S6; 2 Bos. ft Pull. 243.
The instruction is upon the effect of evi-
dence, or rather it is positive that certain mat-
ten had been proved. This was contrary to
the principles of law regulating the trial by
"a.
e action of indebitatus assumpsit cannot
be sustained for such a cause. Selwyn's N,
P. 61. This action will only lie where debt
will lie, and a recovery of this kind cannot be
bad on sucb a general count. There should
have been a special count, setting out all the
drcumstances, and alleging the liability of the
Canal Company to fumisb the cement by the
contract. 6 East, 669, G70.
Mr. Key, tor the defendants in error.
The bill of exceptions is sutficiently descrip-
tive of the demand of the plalntitTs in the Circuit
Court. It gave the defendants notice of the
nature of the claim. If it was not, they
651*] 'could have called for a farther speciti-
eation; and this court will not allow an objec-
tion to be made here, which was not presented
for the consideration of the court below. As
to the effect of the bill of particulars, cited, 1
Holt's Nisi PriuB, 062; 0 Wheat. 681.
Had the objection been made below, the plain-
tiffs would, under the law of Maryland of 1786
•h. 8, sec. 4, have had the privilege of amend-
ing, even after the jury were sworn.
As to the objection that the court has under-
taken to instnict the jury on matter of fact, it
is said that the court ndjudged that the Canal
Company bad unilertoken to fiirnish the ce-
mrnt. This is not so; the whole ia put liypo-
tliotically. This court will not be diisposed to
construe the action of the Circuit Court unfa-
vorably. The instruction asBumes no facta; the
court left the case and the evidence which waa
given, to the jury.
As to the objection that the action eould not
be sustsined by the evidence offered under tbo
bill of particulars, cited, 1 Selwyn's Nisi Pri-
us, 60; Moses v. M'Farland, Burrow, 1008, Per^
kins V. Hart, 11 Wheat. 237.
The evidence aupported the claim stated in
the bill of particulars. If there bad been no
evidence, it is admitted the Instruction was er-
roneous; but the depositions of a number of
witnesses prove the deficiency of cement, and
the wages paid by the contractors wbila
waiting for it. The court is particularly re-
ferred to this testimony.
It is contended that the acts of the president
and directors, and the agents of the company,
as proved in the depositions, were not binding
upon the Canal Company. These acts were in
the course of their duty; and the principles aet-
tied by this court in the cases of The Bank of
Columbia v. Patterson, 9 Cranch, 2S9; 2 Cond.
Rep. 601; The Bank of the United SUtea r.
Dandridge, U Wheat. 64; 6 Cond. Rep. 444,
support this evidence. The evidence Is that of
the agents of the company; that they received
and communicated the orders of the board of
directors to the contractors to kent their hands
and they would pay them. It is said tiiepe
should have been a record of the acts of the
board upon this matter, and that only such a
record would be evidence. This, it is conaid-
ered, was an objection to the evidence which
cannot be taken here. But the 'law does ('SKS
not require this evidence. The testimony was
offered to show the eontraet, and waa so ra-
The counsel in the court below allowed tlie
evidence to be given, and took the chance of it*
influence; and they now come into this court
and make objections to it.
Mr. Webster, also for the defendants In error.
The proceedings in this court are on a writ
of error to revise a judgment of the CSreuit
Court, In a case in which the plaintiCTa below
were erediton of the Canal Company, and
sought the recovery of their claim; of whicli,
on the demand of the defendants, they fur-
nished a bill of particulars. It seems they met
in the case oil the obstaclea usually presented
in actions against corporations. There were
more than the usual exceptions taken in thia
cause, even in eases in tins district. The rec-
ord shows this. Many parte of the evidenea
were excluded by exceptions taken by the da-
fendants; and upon what was left out of »
claim for upwards of five times the amauat, a
verdict for upwards of $20,000 was obtained.
On the writ of error in this court nothing
can be brought under an examination but tlia
accuracy of the motion ruled in the court be-
low. The precise inquiry in the case is, doea
the bin of exceptions present a question for a
decision of the court, vhich could be required
of the court on the counts in tha declaration?
>8»
lux Ciua.uvuuE AND Ohio Canu. Ooupant t. Kbapt it u.
The U« of UUi of particuUn )■ settled. If
tka UU of pa.rticulax« refan to the particuIarB
>f Um BiAtteT excepted to, without being lufli-
eientlf 4eflnit«, exceptioa should be taken to
it utd A fnrther demand made. In this case no
•neli denund was made; and under this general
bOl of particulara the part/ went to trial, and
Bo question waa made before tba trial aa to its
uAiciencf.
It it laid that when the evidence wa* given
it waa not known how it would be applied; but
tbii might have been brought to light by ask'
ing inatnictionB of the court. The party intro-
ducing it cannot say, "I will ehow you hereaf tei
how the evidence will apply." If the part;
•gainat whom the evidenoe ii offered aamita it,
iie maj' ask the court to instruct the jury it
Joes not apply.
The bill of particulars sbowa that the claims
tSS*] of the plaintilTe *bclow were for wages
paid while wititing for cement, and that there
was a dciiriency of cement. This was enough,
naless the dcfendantB had asked for more, which
they eould have done. The evidence was witti
ia the bill of particular!, and was fully author-
iied by it.
The ruling eomplaitted c4 ia a ruling in mat-
ter* of law, and not of evidence. It ia not a
ruling as to llie character of the evidence. It
was the elTeet of the ruling of the law, upon a
sDppoaed state of evidence. Although it is ad-
mitted that there niiist be soma evidence, yet it
wasnot necessary it should be strong. The quej
tion for the jury was the effect of the evidenc
The qiipslions presented are: let. Was there
aay evidence on this point] 2d. Waa the ruliitg
right! The rule against stating speculativi
«•(« cannot apply. There muat be evidenct
te nise the question out of which the pointF
arc to be prnspnted to the court. If there was
any evidnn'c, it wbb enough, to auatain the rul-
ing of the court, that the queation should be
fivrn to the jury upon it.
Was there such evidence, good or insuflicient,
la submit the case? The evidence wa* various;
SDd that of one of the witnesses, Mr. Wright,
wt* particularly applicable. The directors, at
a meeting in the counting-house of the treas.
Drer of the company, agreed that the company
would pay the contractors for their losses by
the want of cement.
If this evidence waa against an individual, it
wonld be siilTicient and competent. It it was
objectionable as irregular, as it was against a
torporation, it should have been excepted to.
It was admitted without an exception. The
admission of it, on the trial, is equivalent to an
agreement in writing to allow it to be given.
Evidence given on a trial without objection,
niraot afterwards be msde the subject of an
*ipeptlon. By this evidence it apppars that
the engineers and oIlicerB of the company as-
■nred the contractors they should be paid ;
snd this was the authority of the directors.
Tile rcKoliition of the board of directors that
th''y would not pay damages for the failure of
tbe company to deliver cement, was the act of
the piainliffs in error. The contractors did not
»MKot to this determination; nor were damages
claimed by the defendants in error. The claim
's for the actual pecuniary expenses paid by
them while waitini; for the cement. But if
■SI*] 'tfaia reaointioo cotUd operate, tu wl-
deuce shows that it was afterward* readnded
or disregarded by the officers of the caiuU c<»a-
paiiy.
The instruction given to the jury wa* well
given, under another view of the case. The
instruction involves the question of law, wheth-
er the plaintiffs in the Urcuit Court could re-
cover for the wages paid their men while wait-
ing for cement, under the count in the declara-
tion for money paid, laid out, etc. Whether
the evidence autnorixed auch a recovery under
this coimt, iias been disregarded in the argu-
ment for the plaintiff in error. The defend-
ant* had prayed tbe court to instruct the jury
that no recovery could be had uuIms a new
contract waa proved. This was denied by tha
plaintiffs, The instruction is thus put hypo-
theticaily; and it should be so read by tais
court, interposing before each statement, "it
the jury beUevei" and thus -it will be manifest
that the court left all the matters to the jury.
The bill of particulars in this aspect of the case
had nothing to do with the questions thus left
to the Jury. The evidence given was before
the jur^, and they found upon it for the pl&in-
tills, without any other than the legitimate ac-
tion of the court upon the facts.
Mr. Southard, for the plaintiffs in error.
The plaintiffs in error complain of an instruc-
tion given to the jury in the court below.
To understand the instruction and test its
validity, it ia necessary to consider: I. The na-
' jre of the action. 2. The claim made by the
laintiffs below. 3, The specific evidence to
hich the charge related. 4. The legality of
le evidence in this action, fi. The legality of
in tbe precise circumstances in which it was
uffL-red. These points embrace not only the
prei^ciitcd by the plaintiff in error, but
those by which they had been risieted.
1. The action. It i* indcbiiatua aa>tump*it.
Wliat may be recovered in this action!
Technically, and jiroctJuilly, there are two
ifiada of assumpsit, as diutiiict as other form*
of action. I. A special assumpiiit, when tbe
plaintiff set forth the breach of which he com-
plains. In this he has to set out a specific
f cement and tbe brc;kcli 'of it, both L'ftSft
which he must piove. This wa* clearly not
done in thi* case.
2. Indebitatus assumpsit. It is in it* nature
m action of debt, and ia substituted for it be-
auae the defendant i* nut permitted in it, aa
IS may in an action of debt, to w.ige bia law.
I Co. 01; 3 Wooddeson, IGS. I;* precise char-
acter is iniporcaiit, especially as one of the
counsel for the defendants has ti.rown himself
this point, and suggcsU'd that it had been
disregarded in the opening argument. It ia,
' iwever, without difficulty.
The rule laid down is universal, although
questioned by Lord Mnnalipld, in 2 Burrow,
' ■' case cited by the defendants in error.
iblished that the form of indcbitatne
assumpsit will lie in no case in which debt will
not lie, although debt ivill lie when it will not
'>e suslalni-d. ) Salk. 23.
In till* action the cause of the debt must be
itatrd, but it must lie rnnHsrly; yot if not
italeil, it is error, or is reason for arrest of
jud{,'iiient (Cro. Janiex. 2IJG, 207). because th«
court must see that there is matter on which
ttw atsumpait ma/ be founded. In stalinH
221
SupuuB CouBT or THK Uhitd Statu.
the matter, general forms, callnl common
cuunte, have bepn tonR Mttled; and it U an ia-
qiiirj tliat may lie iiioved under them,
it will be lawful to prove any fixed, settled
and delenniiiBte sum, arising on a prpcise con-
tract, where the num is, or may be, reduced to
certainty ; such as fees due by custom, for
tolls; or on a foreign judgment. But yuu can-
not re-cover it in anylhiiig wliich is not of a
defmile characlrr. fJnIk, 23; I.ord Raym. 0).
It is common to avuld tliis difliculty by setting
out, in a special count, the contract by which
the money is claimed; and then if a failure to
prove the contiact tokes place, the general
counU may be resurlcJ to. But the special
contrnct must be eet out, if there is to be a
recoieiy upon it.
Among the conimon counts, "money paid,
laid out. etc," i» the most fipquunt. The law,
in such cases, imptibs a promise of repayment;
and there must he such a promise, expresa or
implied. 8 Term Itep. 310, 610; 1 Term Rep.
20.
If the promise is express, it must be ao
stated ; as when one payn to one In his own em-
ploy wajj^es frir llig benefit of another, there
must be an express contrart stated and proved,
or there ia no consideration,
5SB*} 'These are tiie very elementary prin-
ciplcs in this ai-tion, and they would not liave
Wen repealed, but they have been brought into
r|iiestion by the adversary argument. The
proper conclusions from them ure — 1. That
you cannot recover under a general coimt what
ia founded on a epeeial agreement, without set-
ling out that a^eement; and if it be p'.rinitted,
there Js error somewhere in the progress of the
cause. 2. That you cnnnot claim uniiacer-
titined dsmn^!;es, resulting from the violation of
Hn agreement; it you do thus recover, there is
The auggestion that everything recovered in
the action must be damages, was made with-
out precision of thought, or of exprrs»ion.
Dama^rea nre noniiniiHy, technically, recovered
in this action; but this is the description given
to the amount of debt which is recovered; and
the sum which mny be asscMed by court or
jury, for an injury euHtained; an account
stated, an agreement to deliver grain at a Riven
price, an in;.'rGdient of which is the benefit to
be derived from the possession and snle of it.
When, therefore, it is complained that dam
ages have been recovered in this form of action,
it mcHns the latter, not the former kind. If
they cau. it should be shown how they can be
recoverrd. This is now to be cousidpred.
a. What is the case before the couitT What
is the clnimT
The case stated is on all the common counts,
but only one comes in question here: that of
"money paid hy plaintiUs for defen-l.Tnls' use."
Thia is Important to the precise understanding
of the le);nl questions raised.
What is this count? For money paid. How
pretended to have been paid! Not on any le-
pti liability, as surety or otherwise, but upon
an express contract. What is the contract pre-
tendedT That the defendants had promised to
furnish water-lime; had tailed so to do, and
when the plain tilTs were sulfcring from the
aame, they pron 'sed, if tliey wonlil not leave
the work, would retain their hands, and pay
128
them, they would refund the amount paid.
A more special contract cannot be set out; a
more speciflc claim for damagi:a cannot ba
Take it in parta. 1. A promise to ftimi^
water-lime, and a failure. Could damagea ba
recovered for these? This need not be argued.
i. If you will keep and pay your hands, wa
'will save you harmless. The p:iy- [*Sft7
ment of the hands is b>it a pari ut' the agree-
ment, and the duniago fol.ow. Is thia varied
by the promise to pay I If it is. it must be ap-
plicable alike to all other dnmag^s; for thia
was only a part, and the promises related to
all.
It appears clear, then, that there has been in
the case a recovery which ia against law; and
the inquiry is, can this court now arrest it; or
has the cause been so managed beiow that the
eye of the jud;;e cannot reach it, his ear b
closed, and violations of law are to bo sanc-
tioned. The answers are to be found in the
instruction wbieh is now resisted.
The history of the instruction is essential to
the correi-t understanding of it. The p aintifTa
uluimed $14(l,llliU on various accoi^iHs. They
presented a bill of particubra, cun.tiimng the
itciiie whi'h formed this auinunt. At the trial,
they offered proof of them ; but tliey were all
overruled — e^p]icitly and without a single ex-
I'l'ption overruled. This is a strong leading
fact in the cause. There was a stage in the
liial when the court had laid down the law,
e.vcliiding every item in the bill of particulars.
This fully appears on the record.
The deci.sions of the court upon the claims
of the plaintiffs, embrace. 1. The con^^truction
of all the locks, and the labor I'pun them, and
the damages for not complyin; with .he
agreement, etc. The evidence given on the
trial must have applied to one ui other of
those heads.
First, as to the work, and the price of !t.
The contract prices had been paid. This is
expressly shown in the rei-oi-d, Thii», llie
contract was estsblished, and the prices were
fixed; and the accounts he.d I»-i-m prriti-nted
according to it and paid. All, th<-iefi>rc, in the
bill of particulara, which relnti-s to all the work
contracted for, at first, had bven settled.
The elfort of the pluiutilTs was to obtain,
not the contract prices which had been alipu-
latcd, but a hif'her price; a quantum valelmt, or
meruit; and the court expresj-ly devirled that
this could not be. All the extra price, there
fore, wss out of the case; and this one decision
left less than the amount re<'OV.'r>'d. as will be
seen on an examination of the bill of piirticu-
lars. This cleurty shows that in the further
p i.;rress of the 'case there was some ['sriS
error whi"h admitted uiattera to wrong the de-
ft'udonts below.
2, There were chnn^^-s nnd modifications in
the work, and some of the items were founded
on them. For tht-s,- the plaintitTs sought to
recover their value; but the court ruled that
they, also, most be governed by the contract;
and (hill aa the engineers were to estimate for
them, and to settle conirovcrsii B respecting
them, their decioion wjib to be conclusive, and
no erroneous, estimate, at a previ.>ua time, or
by other persons, could alter it. The contract,
and the instruction given upon it, will fntlj «■■
rcten •.
(hi ChebapkakI akd Ohio Canal Ooupant t. KnArr r aL
tftUtah th«M poattlona, nnd show thi.t all these
itemi were overruled.
3. The pl&intiff claimed damages on thi
subject of injuries Bustained on a, contract ti
fumish lime. Whether this con tract vai
found in the original agreement, or in Bom<
■iiboequent one, it Vaa all met by the court
The principle the}* austained in the previoui
itutraetiona, waa, that in tbia Action, damages
for the breach of a epeeial contract could not
be claimed ajtd recovered.
4. The plaintiffs were hurried to finish thi
worlt bf the 4th of July, 1830, and they claimed
dtunagea In the form of higher wages, thirty-
three per cent, advance on theae wagea. But
the anstrers to this are, 1. The defendants had,
t^ the contract, a right to urge them at any
time. 2. The evidence of this woa the say.
inija of the preeident, which are clearly inad-
missible to bind the company to pay damages.
3. This was long after the time in which tbe
contract was to be completed, and there
no evidence thixt the time was extended. This
matter was then overruled.
In these deciBions of the court, on the at
eral claims stated, all the claims of the pla'
tiffs, it is rppeated, were overruled by the coi
in their previous inst ructions. Not an item
the bill of the plaintifrs can be found to which
one or other of the instructions of the court
had not spplicd.
If any exception from this position could be
found. It was wages of the men during the de-
tention, as alleged, from the want of cement
Hut thpse are manifestly independent of any
rontrai^t to pay them, and they were damage!
from breach of contract; as purely so, as anj
other evil resulting from the neglect of the de-
fffldants on this point.
5S9*] 'Whether they can be removed from
this condition by what occurred in the subsc-
quFnt part of tbe case, will be hereafter eouaid-
ered. WTiether the court did right or not, in
thna excluding the plaintiffs from evidence, or
the effect of evidence in these particulars, is not
DOW the question. The plaintiffs below hare
recovered, and come here to sustain the judg-
ment; and this they cannot do by showing the
rourt erred in deciding against them oo other
points. This is clear and is admitted.
Not is it necessary to discusa the conduct of
Ihe Circuit Court, in admitting these various
inst ructions. The practice ii peculiar to that
court and the courts of Maryland. No one can
conduct a ease in safety under it. Not fact and
justice, but skill, must triumph; or the preju-
dices of the court and jurors prevail.
Bnt it is more important to remark that
theae instructions are a substitute for the prac-
tice which prevails elsewhere, of taking exrcp-
tions to the ad mission of evidence, or claiming
tbe rejection of evidence. And this is an
answer to the su^estion that the defendants
should have objected to, and have naked the
court to overrule the evidence.
After this long examination, we have reached
a position clear of dii!iculty, and can observe
tbe ection of the court in the instruction, which
ia the subject of examination on this writ of
error- We have a claim, by the plaintiffs bC'
low, for a debt, the particulars of that debt, a
vrittoi contract with the defendants by which
tt wms limited, and the orerruUng of every item
in that hill, except such as were proved to hare
been paid. The result of this state of things In
the plaintiffs was inevitable.
To escape from it the plaintiffs sought an fai-
stnictiun on one speciAc point It was in re*
lation to the psyment of wages on locks No. fi
and 6. It applied to no other locks. It was
wages there, and on these locks only. This is
a full answer to all the references to the evi-
dence in the case. There (s no evidence relating
to these locks, all the testimony relates to other
locks.
The language of tbe Instruction must be con-
fined to this point; and the importance of ao
confining it is apparent. I. Because damages
with regard to all the other locks had been ex-
cluded, and all damages for the want of cement.
*2. The claim wss under a contract to [*SSO
pay the wages on these, and not on others.
3. If tt extended to others, it will produce the
result of making the court directly contradict
itself; having in eleven previous exceptions
laid down other rules. 4. Because it was asked
respecting two locks only, and if such a con-
struction be given to it, as applies to others, an
immense amount of damage is let in, ten times
greater than is ssked under this instruction.
5. Wages, as such, had been overruled, as
damages: these are to be brought in, because
there was a special contract.
If the instruction be liable to such an inter-
pretation, it was error. The jury were not
guided by it, but they were misW.
On a particular examination of the instroc-
tion, it will be found to have two parts, as to
time; from tbe 2d of September, 1829, to the
3ulh of January, 1B30; and after tbe 30th of
January, the jury are told that if they believe,
1st. That between the 2d of September, 1829,
and the 20th of January, 1830, the defendant*
had contracted to deliver water-lime; 2. Thftt
the plaintiffs expected it; 3. That hands were
kppt idle, and were paid by the plaintiffs; 4.
That the defeudants requested this, and prom-
ised to pay for the same: the plaintiffs might
recover the sums so paid, under the count in tbe
declaration for money laid out and expended.
This is not for damages, for that had been
overruled; but upon a special contract, and that
contract was not stated. The coses referred to
in a previous part of the argument have, there-
fore, full application to this ruling of the
The second part of the instruction proves
that this was tbe view of the court. They re-
gard the contract as evidenced by the order of
the 2d of September. 1829, and rescinded bj
that of the 30tb of January, 1830.
The instruction, then, was that there was «
contract, and wages paid on account of it be-
tween the 2d of September, 1820, and the 30th
of January following. Let us examine if this
waa correct in point of law.
1. There was no notice of such a claim. What
iticB waa given? The bill of particulars. It
states detention and damages for want of
cement on locks 6 and B, $600. The r«se cited
shows, and it is admitted that the bill of par-
ticulars in such actions must refer to the mat-
ters claimed, clearly and 'distinctly. [*Sfll
Here a contract for tbe payment of wagea ia
embraced under the words "detention asd
'damaces." Do they embrace it I There is no
Supxmi Couir or thk Uxttxd Static.
nferrace to tbe Mntrmet In the notice, no in-
fomiBtion of tbe ground of elftim. Could the
defendmiita suppose th>t under it % •pedfle coo-
trftct «•• to be proved t They Icnew th&t de-
tention and duiiAgei could not be proretL
There U a most marlced distinction bctweoi
thetn. ated, 2 Boas. i. Pull. 243; Tidd'a Prac-
tice, 637; SUrk. Evid. 1056; 4 Taunt. IBO.
The claim preseDt«d to the jurj in the iostruc-
tion ia not detention and damagea, but a debt
upon a specific contract; and the contract is not
referred to or stated in the bill of particuiara-
But it ia objected that although this be true,
the plaintiffs in error are now too late.
I. We are bound to notice, before trial, a
defect in the bill of particulars in stating mat-
ters not legally claimed, under such an action
OS this was. But it ia denied that this is the
law. When the parties came to the trial, they
objected to the evidence. This was done ex-
presatj when the claim aasumed tbe form of
damages, as it did when the eleventh instn
tlon waa given. A. partj may either object
the omission of the notice, or move to overruEe
the evidence, and to exclude it. The latter was
done. It was tlierefore objected to as (or as
it was in the power of the party to do it.
Another objection to the instruction is that
it adjudges matters of fact. Upon this the
eounael of the defendants in error differ with
those who maintain this poaition. The court
will decide the question. But there is another
objection to the instruction. It submits what
waa not at all in evidence in tbe cose. In sup-
port of this position the counsel (or the plain-
tiffs in error went into a particular examination
ot the evidence in the record.
These reasonings on the instruction are sub-
mitted aa fatal t« it, and the evil which the
plaintiffa in error sustained from it has been
aerious. While the damages claimed by tbe
d^endants in the court bdow were overruled,
jet by thia instruction the whole question aa to
dnmaigea was left open to the jury, and a ver-
dict was given in tbeir favor for upwards of
920,000. Ui the Orcnit Court, if the claims of
the defendants ]a eiTOr are just, the^ will have
B6S*} no difficulties *in another tnal; and, if
the law requires it, they may amend the decla-
ration and the notice.
It is not decided that a contnct may be in-
ferred from the acta of a corporation. It is the
better ojdnion, in modem times, that it can be
dotM; but in thia ease there was no evidence of
any acts of the corporation, but solely of some
of the officers employed by it. There was no
entry on the booka of the corporation ; no meet-
ing of the directors, or vote ny the board. It
was tae act of the president only, on which tbe
plaintiffs below rested their claims, and of the
engineers, on the authority of the president.
This w«a not auffident. The court must ad-
B whether there was sufficient evidence to
m^tl
tht eonnsel of the defendants in error, and they
•ustoin the rule now contended for.
Mr. Justice MTeon delivered the opinion of
the court:
This case is brought before this eonrt by writ
of error to the CSrniit Court for the INatriet of
Columbia.
The defendants liere, who were platntilb in
tbe Circuit Court, commenced an action of
assumpsit to recover a large sum sikgi-d to be
due for the construction of certain loiks, etc^
from the Chesapeake and Ohio Oinal Com-
pany; and filed their dcvlaration, containing
nine general counts of indebitatus o&sump-iit.
for work done and materials found, money laid
out and expended, sn account slated, etc.; and
the defendants pleaded the geni'ral issue. On
the trial several exceptions utre taken to the
ruling of the court by the p'aintiffs, and one
exception waa taken by the defendants, nhicb
presents the points for decision on the present
writ of error.
The following ia the instruction referred to:
"In the further trial of this cause, and after
the evidence and instructions stnted in the pre-
ceding bills of exceptions had been piven, and
after evidence offered by the plaintiQ^s, of the
payment of moneys to the labourers for the
time during the detention, occasioned by the
want of cement on locks 5 and 6, the plainlilTi,
by their counsel, prayed the court to instruct
the Jury that if tbe jury beiiei'c, from the said
evidence, that tbe defendants had. on tlie 2d of
September, 1820, and from that time till the
20th day of January, IS30, contracted with the
plaintiffs to furnish 'them with cement (*5CS
necessary, etc., in due time, etc., and that the
plaintiffs, expecting that sufficient siit^Hea of
cement to go on with the work would be fur-
nished by the defendants, as defendanta had ao
engaged to do, hired a large number of hands,
and brought them to the locks; aud whrn the
defendants bad so fulled to furnish the cement,
kept the same hands idle, waiting for cement,
on the defendants' desire that they should do
so in order to be ready to go on with the work,
and paid them their wages while so waiting;
then the plaintiffs are entitled, under the count
for money laid out and expended, contained in
the declaration, to recover the money so paid
to said bands, during such periitds. But that
the plaintiffs are not entitled to recorer for
wages paid to their workmen, on account ot a
deficiency of cement, after the said 20th day
of January, 1830; unless tbe jury shall be sat-
isfied by the said evidence that the said rrsolu-
tion of the board of directors, of the '20th of
January, 1S30, was rescinded by the said board
and a new contrai.: entered into thereafter by
the defendants to furnish cement to the plain-
tiffs, and the subsequent failure on their part
so to fiunish it, and an agreement also to pay
for the wages of the plaintiffs' workmen while
so waiting, etc.
The resolution referred to in the Wl of ez-
cepUons ia in the words following:
"Resolution of tbe Board of Directors of the
Canal Company in meeting, January 20th, 183a
Resolved, That although this board has stipu-
lated to supply the contractors with water-
lime, yet tbe board will not be held renponsible
for any damages arising from the want of that
article."
A bill of particulars was filed by the plain-
tiffs under the order of the ecmrt, and in which
bill tbe following item ia ehargrd: "Deten-
tion and damage sustained, for want of eeuvat
in loeka No. S and t, 800 dollars."
Thia earn ■»■ been ably orfoed on both
Pctm *.
TBI CuuiPBAXK AND Ohio Cahal CouPANr t. Ehapp n U^
603
ridn, and tlie qnesttoiiB InToWed in It are of
Btieh practical importHnce.
Tba counsel for the plaintiff* in error object
to the bill of particulars, and insist that the
kboTe item for damage for want of cement,
ct«., IB not Bufficientlj Bpeciflc, aa it doei nu(
Apprite the defendants of all the facts on which
tne charge for damage is made. It does not
state how the damage was sustained bj> the
plaintiffs, and on what ground an indemnity
6C4*] 'was claimed of the defendants. A bill
of particulars, it is contended, when dcnisnd'jd,
becomes a part of the declaration; and with
tbe exception of certain averments, it should
contain equal certainty.
There can be no doubt that a bill of particu-
lars should be BO specific as to inform the de-
fendant, substantially, on what the plaintiff's
action is founded. This is the object or the
bill, and if it fall short of this, its tendency
must be to mislead the defendant, rather than
to enlighten him'.-
As the bill of particulars is filed before the
trial, it is always in the power of the defend-
ant to object to its want of precision, and the
court will require it to be amended before the
commencement of the trial. And if this be not
the only mode of taking advantage of any de-
fect in the bill, in practice it is certainty the
most convenient for the parties.
In 4 Taunt. 188, the Court of Common Pleas
•ay, substantially, "if a bill of particulars
specifies the transaction upon which the plain-
tiff's claim arises, it need not specify the tech-
nical description of the right which results to
tbe plaintiff out of that transaction."
In that case the plaintiff declared for goods
•old and di lirered, and for money paid; and
dcUrered to the defendant a bill of pnrticulnrs,
rir., "To \J flrlcins of butter, 65 pounds 6
Bbillin^; net sayins for goods sold."
The court decided that the action could be
Viiataincd on the count for money paid. And
they remark, as to the objection taken respect-
ing tbe bill of particulars, bills of "particu-
lars are not to be construed with all the strict-
ness of declarations: this bill of particulars has
no reference to any counts, end it sufllciently
expresses to the defendant that the plaintifTs
eljum arises on accoimt of the butter.
And we think, in the present case, that al-
though the bill of particulars does not specify
tecluiicaily and fully the grounds on which the
plaintilTa cinim diimngcs, yet, in the language
of tbe above cnsc, it sufficiently expresses to
the defcnJants that the clvm arises for want
of cement in locks No. G and 6.
Cut the ground on which some reliance seema
to be placed for the reversal of this judgment,
and which, in the view of the court, is one of
the principal points presented by the record,
la, that the jury were instructed to find for
SSS*] the plaintiifB below, on 'proof of a
epecial contract, and under a declaration con-
taining only general counts.
By the Instruction of the court, if the jury
found, from the evidence, that the contract
luul been made by the defendants, as stated,
■nd that the money had been paid to the hsndt:
detained for want of cement, the plaintilTa
were entitled to a verdict on the count for
money laid out and expended.
b) the argument, it waa contended that there
was no legal proof of the special i
That a corporation can only contract within
the terms of its charter, and that there does not
Rppesr to have been any action of the board,
sanctioning the contract as insisted on by the
pliiintiffa.
The ancient doctrine that a corpomtion can
act in matters of contract only under its seal,
has been departed from by modern decisions;
and it is now considered that the agents «f a
L-orporetinn may in many cases bind it, and
subject it to an action of assumpsit. But it ii
unneccsaary to examine either the ancient oi
modern doctrine on this subject, for as no ex-
ception was taken to the evidence which COU'
ducttd to prove a special contract in the court
below, the objection cannot he raised in tliiB
There can be no doubt that where the special
contract remains open, the plaintitr's remedy
is on the contract; and he must set it fortn
specially in his declaration. But if the con-
tract has been put an end to, the action for
money had and received, lies to recover any
payment that has tieen made under it. The
case of Towers v. Barrett, 1 Term Rep. 133,
illuatrates very clearly and fully this doctrine.
In that case the plaintiff recovered, on a count
for money had and received, ten guineas paid
to the defendant for a one-horse ciiaise and
harness, which were to be returned on condi-
tion the plaintifl^B wife should not approve of
the purchase, paying 3s. and Bd. per diem for
Ihe [lire, should they be returned: and as ths
plaintiff's wife did not approve of the purchase
they were returned, and the hire was tendered
at the same time, "But if the contract rcmnin
iipen, the plaintiff's demand for damages arises
out of it, and then he must state the special
contract, and the breach of it."
It is a well-settled principle, where a special
contract has been performed, that a plaintiff
may recover on the general 'counts. [*S66
This principle is laid down by this court in the
case of The Bank of Columbia v. Patterson's
Administrators, 7 Cranch, 200; 2 Cond. Rep.
501. In that case the court say: "We take it
to be incontrovertibly settled, that indebitstus
assumpsit will lie to recover the stipulated price
due on a special contract not under seal, whero
the contract has been executed; and that it is
not in such case, necessary to declare upon the
special agreement."
It would Iw difiicult to And a case more an-
alogous in principle to the one under consider-
ation than the above. The aame questions, na
to the right of the plaintiff to recover on the
general counts, where the special agreement
was performed, and also as to the powers of ■
corporation to bind itself, through the instru-
mentality of agents, were raised and decided
in that case, as are made in this one. And it
would seem, where this court had decided tbe
point in controversy, and which decision bad
never afterwards been controverted, that tbe
question is not open for argument. But
whether this doctrine Ije considered as estab-
lished by tlie adjudications of this court, or the
sanction of other courts, it is equally clear that
no principle involved in the action of assumpsit
can be maintained by a greater force of au-
thority.
In 1 Bacon's Abr. 380, It la laid down that
tSl
BUPBBUE CODBT or THK UNmo fiTATlt.
lUI
*^herevBr tha eonaidenticm on the part of the
plaintitr ia executed, and the thing to be done
on the defendant'* part is mere payment of a
■nm of money due immediately; or where mon-
ey ia paid on ■ contract which is reacinded,
■o that defendant has no right to retain it, this
conatitutes a debt for which the plaintilT may
declare in the geneml count, on an indebitstua
kiBumpait. Anciently, the count in such caaea
waa apecial, atating the consideration aa execu-
tory, the promise, the plaintiff's performance,
and the defendant'* breach; but the indebitatua
haa grown, by degrees, into use."
"So, also, if giMds are sold and actually de-
livered to the defendant, the price, if due in
money, may be recovered on this count; and
tbia though the price is settled by third parties."
1 Boa. &. Pull. 307; 12 East, 1. "Where the
plaintiff let to the defendant land rent fr«e, on
condition that the plaintiff should have a moie-
ty of the eropa; and while the crop of the sec-
ond year was on the ground, it waa appraiaed
ftST*] for both 'parties and taken by defend-
ant. It waa held that the plaintiff might recover
Ua moiety of the value in indEhitatua assumpait,
for crops, etc., sold; for by the appraiaement,
the apecial agreement waa executed, and a price
fixed at which the defendant bought the plain-
tiff's moiety."
The same principle Is found in Helps and an-
other V. Winterbottom, 2 B. & A. 431; Brooke
V. White, 1 New Rep. 330; Robson v. Godfrey.
Holt. 238; Heron v. Gronger, fi Esp. 28!);
Ingram v. Shirley, 1 Stark. 185; Forsyth v,
Jervis, 1 Stark. 437; Harriaon v. Allen, 9 Moore,
28; Bailey v. Gouldemith, Peake, 58; Gandall
V. Pontigny, 1 SUrk. 198; Farrar v. Nightin-
gale, 2 Esp. 639; Itipgs v. Lindsay, 7 Cranch,
BOO; 2 Cond. Rep. S85; James et al. v. Cotton,
7 Bing. 268; Administrators of Poster v. Foster,
S Binn. 4; Lykes i. Summerei, 2 Browne, 227.
Aa, by the instruction of the court, the jury
■nuat have found the contract executed by the
Elaintiffs below, liefora they rendered a verdict
I their favor, we think the question haa been
■ettled by the adjudged cases above cited; and
that on this point there is no error in the in-
atruction of the court.
Bat It ia inaiaUd that, in their inatruction,
the court lay down certain facta, aa proved,
which ahould have been left to the jury. If this
Judgment must be reversed ; for the facta should
be left with the jury, whose peculiar province
it ia to weigh the evidence, and say what effect
ft shall have.
The instruction states "that if the jury be-
lieve from the said evidence that the dcfendnnta
had on, etc., contracted with the plaintiffs, cx-
defendants, a» defendants had so engaged to do,
hired a large number of hands and brought
them to the locks, and, tohtm the defendant* had
m> failed to fumiih tha oemeni, kept the said
bands," etc.
The words italicised are those objected to, as
assuming the facta atated to be proved, and con-
sequently aupersediDg an inquiry into those
facta by the jury.
It must be observed tbat, in the first part of
^ Inatrnction, the jury wer« told that "If they
believe, from the said evidence, that tha defend
aniH had contracted with the plaintilfa to furnish
*them with cement necessary, etc., in 1*868
due time, etc., and the plaintiffs e\pccting that
the cement would be furnished, as defendanta
had so tngaged to do, etc., makiug the words
italicised to depend upon proof of the contract,
viz., tlie furnishing of the cement in due time,
as stated in the bill of exceptions, it would
therefore seem to be clear that these word*
could not have withdrawn from the jury any
fact, as they were made to depend on the estab-
liehment of the contract by the Tinding of tbe
jury. And the saine remark apptiea to the other
words objected to; that ia, when "the defend-
anta had BO failed to furnish the cement;" for
these words could have had no influence with
the jury, unless the evidence, by their flnding.
not only establiahed the contract to deliver the
cement, but also showed a failure by the defend-
ants to deliver it.
It therefore appears that the words objected
to in the instruction, when viewed in connection
with its scope and the language used, did not
assume facts by which the jury could have been
misled; but atated them as resulting from the
finding of the jury, that the contract had been
made and broken by tbe defendants, as hypo-
thetically stated in tbe instruction.
It ia objected that there was no evidence in
the case, conducing to prove tlie facta on which
the above inatruction waa founded.
The court ought not to instruct, and indeed
cannot instruct on the aulTiciency of evidence;
but no inatruction should be given, except
upon evidence In the case. Where there la
evidence on the point, the court may be called
on to instruct tbe jur^ as to the law, but
it is for them to detarnune on tlie effect of the
In the present caae there was evidence, which
was not objected to, conducing to prove the
contract, hypothetical I y atated in the instruc-
tion; and in such case, whatever ground there
might have been for a new trial, there ia none
for the reversal of the judgment.
The instruction wa* limited to the damages
sustained by the plaintiffs, for a failure to de-
liver cement by the defendants, for the con-
struction of locks numbered five and six; and
as the bill of particulars chargea the damagea
thus austained at 8600 only, and the damagea
assessed by the jury amount to the sum of
$20,707. G6, it is contended by the counsel for
■the plaintiffs in error tlint on these CS**
facta the judgment should he revereed.
In the course of the trial twelve hill* of az-
cept.ions were taken by the plaintiffs to the rul-
ings of the court on the varioua pointa raised;
hut these exceptions are not now before the
court for decision. It is insisted, however, that
although the queationa of law raised by these
exceptions are not before the court; yet the
fncis, in regard to the evidence which is shown
by the except iona, are before them, and ahould
be considered in reference to the point now un-
der examination.
In the eleventh bill of excfplions. after cer-
tain pmvera by the plaintilTs' coiinspl, which
were refused by tlie court, the difen^lanta, by
their counsel, 'prayed the court to instruct thi
jury that the p'aintiffs are not entitled to re-
cover damages under either of the count* in
Peters •.
Thk Lm ASD Fiu IifsoKARCc OtatrAxr or New Tout t. A^amm.
tb* dadftrktlon in thit eauH«, bj> resBon of an;
(ailura oo the part of the defendant! to de-
Hver oem«nt to the plAintilTs for the prose'
ention of their work on tlie locki contracted
to be built by them, which the court gave aa
And !■ the twelfth exception they cave a
■*■"■'«' laatruction, on the prayer of the defend-
aat*.
From theaa exceptions, and other* taken by
the plaintiff! below, and the bill of partieu-
Isn, it is contended that it sufficiently appeari
there waa no evidence before the jury under
the inatructions of the court; except that
which conduced to ahow the amount of dam-
age* Buetained by the plaintiflB, for the want
of cement in the conttructiou of lock* five and
If it were proper to look into the exceptions
of tin plaJntiO's below to aacertoin this fact,
there would itill be no difficulty in overruling
the objection; for the instruction given on the
Erayer of the plaintilTs below, and excepted to
jr the defendants, -and which ia the error com-
pUined of, may be reconcited with the other
•XMptiono, on the ground th»t additional evi-
donce waa heard by the jury before the instruc-
tion was given.
But if this were not the oane. it would afford
BB groond for the reveraaJ of the judgment of
the CSreuit Court.
Whether the court erred or not in refusing to
gire the various instructions prayed lor by the
{Iftintiffs belon, is not now a subject of inquiry.
I may be admitted that they did err, so that if
the verdict had not been satisfactory to the
B70*l 'plaintiffa, they might have reversed
tlw judgment on a writ of error; yet the evi-
dence on which those Initructions were refused,
remained in the cause for the actionof the jury.
And a* additional evidence was given, a* ap<
pe»r* by the exception of the defendant* below,
the cau*e waa aubmitted to the jury upon the
whole evidence.
Whether the . .
Mconnt of the injury sustained
for tlie want of cement in the
lock*, other than those numbered five and six,
or on account of other item* stated in the bill of
particuiara, it is imposaible for thi* court to de-
termine. If the jury failed to obeerva the in-
■truction* of the court, or found excessive
damages, the only remedy for the defcndsjits
was by a motion for • new trial. As the case
DOW stands, we are limited to the legal ques-
tions which arise from the instruction given on
the prayer of the plaintilTs, which vras excepted
to by the defendants, and on which this writ of
error has been brought. And as it apprarB from
the views already presented that the Circuit
Court in giving this instruction did not err,
the judgment oclow must be affirmed with
Thia cause came on to be heard on the tran-
icript of the record from the Circuit Court of
the United SUtes for the District of Columbia,
hotden in and for the County of Washington,
aad was argued by counsel; on consideration
whereof, it is ordered and adjudged by this
eomt that the judgment of the said Circuit
Court in thia cause be, and the (sme i* hereby
alHrBied. w*.h co*tB and damage* at the rate of
rix per centum per annum.
• lb «4.
CHRISTOFHER ADAMa
Voluntary appearaoea
I.oiilBlana. Ha ads d
;eii KcsDCcd Uy this court,
and bad been served upon blm ; sod copies of tb*
rale hid been
Br rna Conar : Under such drcunutsaeea,
there Is no nteessltr for dlrscUoa S mis ta be
entered and noUce to be given ; all the purpoaes
ol Uie rule are accompllsbed.
THIS wa* a motion for a mandamus, to be di-
rected to the Diatriet Judge of the IMstrict
of Louisiana.
There had not been any rule taken out and
served on <he district judge to show cause why
a mandamus should not issue. Copies of
the papers on which the motion waa founded,
with notice that the same would be made at
this term, had been served on the district judge
aud the parties in the suit pending before him,
during the late vacation. The district judge
appeared by counsel, and waived any notice
ol a rule to show cause, and offered to show
cause instant«r. An objection having been
suggested, whether, even by oonsent on both*
sides, the rule and service Uiereof ought to be
dispensed with, some diacussion took place on
the subject between the bench aud the bar.
Mr. Justice Baldwin was of opinion that in
a cause of this aort the court ought not to dis-
pense with the regular course of proceeding*,
by the granting and aervica of a rule to show
Mr. Chief Justice Harahsll said that the
grant of a rule to show cause and the service
thereof, is a matter in the discretion of the
court. The court may, in its discretion, grant
an alternative mandamus, if it deems it more
conducive to public 'justice and to ['511
prevent delays. Here all the parties expres*
themselves ready to proceed lo the cauae. The
district judge waives any formal rule and no-
tice, and wishes no delay; and states his readi-
ness now to show cause. Under such dreum-
stances, all the purposes of a rule to show
cause and notice are accomplished, and there is
no necessity for directing such a rule and no-
tice. The court, therefore, in my opinion, may
properly proceed at once to the hearing of the
cause, for the purpose of ascertaining whether
a mandamus ought or ought not to be awarded.
The other Judges concurred in the opinion of
the Chief Justice, and the court directed tb*
motion to come up on the next motion day.
SupBKiu CoCTT OF THK Uriiid States.
CHRISTOPHER ADAMS.
Handamus — BuperviBOty power of this court no
to be exerciMd while cauie la depending i:
lower court.
LonUiau. Uudatntii. In tbe Dlatrlct Cour
Ol the United States for the District ol LouIiIbdd
tbe district ludce reftispd Id eilrnil a Jiiilgn
previously entered Ir •"■- '■'---'-- -— -■■
corer otlier Install me
became due after It , ,- _
Judgment Id faror of the plalatilTa, marteagea,
upon a proceeding which bad betiu enteied lata
with tbe tnorl(;ageor In relallan (o Ilip delit due ta
the moctgaeees, In which It vaa stipulated that
Judgment sliouid be enlered for crrlaln Inatall-
menls to be paid to the plalntllTs, on tlic nonpa;-
oI i;
pla!
Dsldei
whose bauds his properlf had paued under tbe lu-
solTent law ot Louialana, after Ihe eiecutlon ot ttas
Iranaactlou. and after a Judgoient for part of the
debt had been entered : which wai the Judgment
■alied to be extended. The district Judge was alao
required to receive a conteaalon at Juagnient against
the mortgaeeor and Ihe Inialveut, ujr an agent
ot the pTalnlllTa. and whose powerl to canfeaa
the Judgment, the district Judge did not consider
adeiiuale and legal [or the i '~
. .. if the United Slates ; who, Dndlng Ihe proucr-
tj of Ihe iDBOlvent defendant, Ihe property mort-
gaged to Ihe plalDlirts, In Ibe hands at Ibc syndics
Of the creditors of tbe mottgageor. according; to
knd Bvll the same, add reiiirniid tbe siefutlon un-
executed. An appllcalloa
Court for a m;iadamuB.
Judge to enter the Judfoi
to recPlve the confession
agent of the plaintiffs, an
3f the JudL-ment by the
erty ot the defendaul wherever found. The court
refused (o award a mandsmua on any of the
grounds, or (or any ot the purposes aCaled In the
To extend a Judgment to subjects not eompre-
heoded In It, la to make a new Judgment. This
court la requested to Issue a mandamua to the
^-.— ... ...- >..— , — District of Lou
ae supposed lo _ ...,__
irdlng Co tbe opinion «
nions which may 1» formed
suceestlons of one ot the
asked to decide that the msr-
Krtles.
I of tl
iwer of this court Into a cause «
Sndfnc Id
clde't in a
such a procedv
spirit and lettet
574*] 'The Supreme Court, In the exercise ot Its
ordinary appellate Jurisdiction, can take cognisance
have been made In (be fnfprlor court. Though the
merits of the cause may have been substaatlally
decided: while anything, though merely (ormal. re-
0 be done
It. '
proceedlnes, I
0 the 8
Note.— As to mandflmuii, sen notes to 4 U cd. IT,
B. 263 ; 39 L. ed. n. S. ISO.
Knpreme Court cannol eierclse appellate Juris-
diction previous to a Bnal Judgment or decree of
Inferior court. Bee notes to 6 L. «d, C. B. 302 ;
49 L. ed. U. S. 1001.
As to dDalltj <tf datermlnatlon, aee nata to S3
li-B-A. 315.
SS4
ei-rat might be brc
peal prayed from
It la the dDty ol a marshal or a court at the Un|t-
I c...»_ .- .g ^[ pr,,ceii« wbkb may bs
ed StaCea
placed Id
his peril,
Ise some Judgmenc In Ihe per/orm-
ance. Should he fall to obey the eilgH of the writ
without a legKl excuse, or should be In Its letter
TlolaCe the rlgbla of others, be la liable to the ac-
iloa of tbe lujured parly.
fur a maudamu.ii lo Ihe district Judb'c, to compel the
marshal lo seize and sell the properly mciitioued
In Ibe writ, that property la no luuger In the pot-
session oC tbe deljtor against whom Ihe pro<:pas Is
directed ; but has been Iiunslerred, by Jaw, to
...u „... ^ jj i,j, (. .__
1 what n
Hn^
r they
I case In which It
t la
Uolled Slates, and perhaps tn a
The Supremp i o-.irt ot
original Jlirisdlcilon over
. ^ppcUste Jurisdiction pre-
,jdgmenl or decree, Carlher than to
order acla, purely ministerial, wlilch the duty of
tbe District Court requires It to perform. This
sirue Judlclahy the laws nhlch goTern It. or de-
cide In whom tbe property la vested. In to doing.
It would Intrude Ctselt Into Ihe manage ' '' -
case requiring all the "
Judge, and usnrp bis puneia.
ferlor tribunal to render Judgmen
1 at Lha dlali
'liber
I will, I
pioper
0 proceed lo Judgment. Should It bs pos-
■ loie mat In a eaae ripe lor Jiidgmenl, the court bo-
lore whom It was depeudlog could pei-scveringiy
Indicating tbe character of the Jiidcmcnt. would l)e
required by Us duty to order the rendition ot some
Judguieat: but to Justify chla mandale,
ought to t>c made out.
f motion for a niftndamua to the Diatriet
Court of the United SUtea for the EMt«ni
district of Louisiana.
The case ia fully atated in the opinion of tbe
he cate was argued by Mr. Butler, [*A75
Attorney -General, and Mr. Jones, for the peti-
'ionera ; and by Mr. Clay and Mr. Porter,
.gainst the mandamus.
Mr. Butler stated that the eaae was before ttw
court upon the following order:
That the honorable Samuel H. Harper, Judge
of the District Court of the United States for
the EaBtern Diatrict of Louitiana (who now here
ippears by his eountel, Henry Cla-y and Alex-
ander H, Porter, Esquiree, and i^onsenta to thia
rule), show cause, on Saturday next, why tUa
court shall not award a writ of mandamua, re-
quiring and eommanding him,
]. To isiue, or permit to b« issued, atieh an
eeution as was, in fa<:t, issued at the inatanco
of the plaintiffs, on or about the 12tb of Mareh,
1834, on the judgnient of the Petitioner* v.
Christopher Adanis, in the petition mentioned;
being nn execution for the amount now due o>
all the notes secured in the mortgage and tiaiu-
Bction executed by said Adama, or,
8. If the aaid judge aball ahow raffidaat
PMw* t.
)luJ
IKi LiTK AHP FiBE IneuE&acB Comfamt or New Yobx t. Asaim,
675
MOM, in the opinion of tbia court, against tha
Uauing of luch execution in the pretent eondi-
tlon A the said judgment, then commanding
Urn to amend audi judgment, or to permit the
•ame (« lie amended, by extending the terms
tliereof, lo aa to make the same an absolute
Judgment upon all tfae note* and sums of mone j
iHumerated in the original transaction, and
tberenpon to issue, or permit to be issnsd, anch
exBcution a' above mentioned, or,
S. If , in the opinion of this court, sufficient
eauM shall ba ihovm by said judge against the
conBummation of said judgment, in the mode
ftnd form laat above stat^, commanding him
then to consummate the Interlocutory p«rt of
tb« same, by entering and signing final judg-
mant or judgmenta, upon and for all ths notes
and nuns of money mentioned in the trausac-
tion ftforesaid, as not being then due; and
tliereu|«n to iBsue, or permit to be issued, moh
execution, for the whole amount of all the
Botee as above mentioned, and,
4. In respect to such execution, if any, tor
the whole amount of the said notes, a* may be
ao ordered to be issued by this court, command-
ing the said judge to compel, by due process of
law, the marsbal of the Eastern IXstriet of
LOdisiana, duly to execute the same, notwith-
SI**] standing the eeesion of the 'estate of
aaid Adams, and the appointment of a pro-
visional syndic thereof.
But if, in the opinion of this court, auffleient
eanse shall be shown by the said judge agaiiut
any writ of mandamus, requiring him to do, or
Emit to be done, the matters and things hers-
bove suggested, In regard to an execution
for the whole amount of all the said notes; It is
tkea ordered that the said judge show cause
why a writ of mandamus should not issue, aa
aforeaald, requiring him to compel, by due proo-
caa of law, the marshal of the Eastern Diatrict
of Louisiana duly to execute the writ of execu-
tion heretofore issued on the said Jadgnant, for
the amount of the notes of said Adsma, due on
the IBth of May, 1826 [the data of said trans-
action), which said execution was dated the
SOth of April. 1634, and tetumable the third
Honday <n Hay thereafter, notwitliBtanding
tba eesaion and other matters mentioned in the
retura of the said marshal to said execution.
Mr. Bntler said the general objects of the
application for the mandamus were:
1. To obtain execution or execution* for the
wbolo amount of all the notea given by Chris-
topher Adams to the Life and Fire Insurance
Onnpany; or, at all events, for the notes not
dne when the first judgment was entered.
2. To prooure the execution of the process
leaned by the Diatrict Court of the United States,
man the property mortgaged; nowithatanding
the cession of the property of Adam* under the
iDaoIrent laws of Louisiana, end the poeseselon
of that property by the ayndlct, acting by the
authority of those laws.
Theae objects can only be obtained by ■ r
damiiB from this court. As to so much of the
application as aeks for a mandamus to compel
the, judge to perfect the judgment and award
execution, there can be no doubt of the juria-
Aetion of thla court to award it. It is within
the prlDciptes established by ths court at the
last term in the Life Insurance Company v.
Tito Heirs of Nicbolaa Wilson, 8 Peters, 2BI.
• Ik ed.
Upcu this part of the ease no doubt is thtirefore
entertained of the success of the application.
The rule which has been obtained in this case
embraces 'several points, and this cause [*57T
is sustained by the case Ex-parte Rradstreet, S
Peter*, 774.
The first point is founded on the supposition
that in the present state of the record, in ths
court below, the petitioners are entitled to an
execution for the whole amount of the debt due
by Adams. The original mortgn^ imported
■ eonfeaslon of Judgment, because it was made
according to the laws of Louisiana, before a
noUry. CiTil Code of 1825, 2231, 2232, 28U.
It therefore authorized ths creditors to ane
tmt an execution In via executiva, without re-
sorting to an action on the mortmge, in via or-
dinaria. Code of Practice, 733, 734; Digest of
the aril Code of 1608, 460, art. 40; Digest of
1820, 3361; 7 Martin's Bep. 238; 12 Martin's
Sep. 671.
On thesB authorities the petitioners ware,
without notice to the mortgageor, entitled to ex-
ecution on the mortgags, by simply m-lring
oath tliat tha debt ia due. In whoseever handa
the property mortgaged may ba. Coda of Prae-
tic^ 61 to M.
If, therefore, an application had been made by
tha Insurance company to the district judge for
an execution, or writ of sdrore and sale. It must
have been given ; and if he liad not granted it,
this court would have compelled him by a
mandamua. In 1S26 such an spplication was
made to Judge Robertaon, and was granted by
But the petitioners have other aeouritiSB which
render their right to this judgment, and the pro-
ceedings upon It, still more certain. The "trans-
action" of 1826 waa a confession of judgment
for the whole amount of the debt. The effect
of thia "transaction" on it, and the aelEurc,
was to allow and authoriu the party, as the hi-
stallments became due, to take out execution for
the amount thereof. All such agreement* have
the force of law, have the force of thlnga ad-
judged, and cannot be revoked or altsnd to
the party who enters Into them with his credit-
on. Civit Code, 3036, 3040, 2270. The de-
cree of the district judge entered on the 7th of
March, 1834, under the mandamus issued at tha
last term of this court, is in conformity to the
right* of the petitioner* thus understood, and
cover* the whole of their claim. It became the
duty of the clerk, after that decree, to enter the
judgments for the Installments not dne In 1826;
and this was a mere matter of form. It waa a
judicial mortgage, and stood like a judgment m
a bond, in a court "of common law, [*BT8
for a debt payable by Installments; or like a de-
cree in equity on a mortgage payable In like
The second alternative presented by the peti-
tioner* a*ks this court, if cause should nave
been shown against issuing the execution* for
the whole amount of the debt, that this court
command the amendment of tile judgment, or
permit its amendment, so a* to Include in It all
the notes; and iasue, or permit execution to
issue for the whole amount of the judgment so
amended.
The objection to tits entry of the Judgment,
SSft
B78
Stmui Coun of tmk Uiimo States.
ISU
under the power given by Adams, la that hav-
ing become insolvent, he bus no cipu:itp to
eonfeu a judgment. "No etandinff in Judg-
ment," according to the law of Louisiana.
To thia it ia answered that the rule as to atand-
loe in judgment, in cases of insolvency, appliea
only to the plaintiffa. But in this ease the act
of confessing judgment i* not under a power
given iinca the insolvency of Adama. It was
Sropoeed to be entered under a power granted
1 1826, and ii the legitimate exerciae of the
power, which Adams could not revoke, and on
which the laws of Louisiana could not operate
retrotpectivelr. If such could be the opera-
tion of these fawB, they would rescind and annul
a solemn contract; and thia they are forbidden
to do by the Constitution of the United Statea.
This would be a retroactive effect upon the
vested rights of the creditors of Adams, and im-
pair a security perfected according to the laws
of IiOuisiana, existing, and in force when the
contract was made.
The cession of the property of an Insolvent
ia his own act; in this ease it Is a voluntary act
of Adams, and this is claimed as vacating his
prior contract. When a transaction, such as
that in this case, prohibits an appeal from the
judgment upon it, or any action in a court to
diminish its effects, shall it be in the power
of a party who has entered into it, by an ap-
Slication for the benefit of the insolvent law, to
efeat itT
It is also urged that the dvil code of Louisi-
ana contains no prohibition of an insolvent de-
fendant to confess a judgment. The allega-
tion that such a defendant has no standing in
Judgment, is derived from the decision of the
S70*] court of Louisiana. *It is a deduction
of a State court from the law, and has no bind-
ing effect on a court of the United States.
The power to Mr. Eekford to confess the
Judgment was regularly transferred to Ur.
Barker; and as the attorney of Adams, under
the substitution held by him, no notice was re-
quired to be given to Adams. This was the
objection of the district judge to the exercise
of the power, and to the confession; hut by
the law of Louisiana notice is not necessary.
If Adams had deemed notice necessary, be
should hare stipulated for It in the transaction.
The authority of Mr. Barker to confess the
Judgment was derived under the assignment of
the Life and Fire Insurance Company to the
Mercantile Insurance Company. The former
company bad sold all this debt, and had trans-
ferred all the powers they possessed to collect it;
and Mr. Barker acted under the assignment by
jhe Life and Fire Insurance Company to him.
Mr. Eekford Is dead, but it was not a personal
trust in him; it was held for the benefit of the
Insurance Company of which he was the presid-
ing olBcer. The power to confess the judgment
waa a part of the security, and passed with
> transfer. A note to the president of a
of the president.
It is admitted that, on general principles, a
mandamus ought not to issue to adjudge to act in
a particular manner, in a case within his dia-
cretion. But this court, at the last tern, de-
cided that the signing of a judgment
ministerial act, and nuh only u us —
now required. Judge Robertaon, In the former
case, had applied his judicial mind upon the
notes due in 1820, no more than Judge Harper
has done in this. He had done nothing but a
mere forma! act. He was bound by the taw
of Louisiana to enter the judgment, end he did
enter it. So in this case there is an obligation
on Judge Harper to act ministerially, and
enter the judgtneut.
Ought not Ue marshal of the United SUtes
for the Eastern District of Louisiana, to be
compelled, b^ a mandamus directedto the judge
of the District Court, to execute the process of
execution which was issued upon the judg-
ment entered in that court!
It is the desire of all the parties in thia case
to have the 'question upon the duties [*&ia
of the marshal decided in this court. All know
that if the question is not now regularly before
the court it must ultimately come up for de-
cision, and it would be highly beneflciai and
satisfactory to have it now disposed of.
It is admitted that consent does not give juris-
diction, but this is given by the Judiciary Act
of 17S9 (sec 13).
Congress intended, by "usagea of law," the
terms in the statute, such as had prevailed in
England, and in the SUtes of the Union, which
had made these usages the rules of the local
tribunals. Such has been the understanding of
this court; and the general jurisdiction exer-
cised by the Court of Kinf>'s Bench is referred
to for the purpose of ascertaining what "the
usages of law" are. So, where the highest tri-
bunals of the States have exercised them, the
existence and nature of the usages are proved.
The general rules on this subject are to be
found in eix-parte Brsdstreet, 7 Peters, 035.
The court decided in tliat rase, that wherever
the legal rights of a party had been violated,
and in a case where the discretion of the judge
was not involved, this would be corrected by a
mandamus, if it was not the subject of a writ
of error. T Peters, 035; 3 Dallas, 42; 8 Pe-
ters, 216, 223.
This is also the rule in the State courts. Al-
though there may be another remedy, the court
will proceed, if there will not lie a writ of er-
ror. The courts of New York possess and
exercise the same jurisdiction as the Court of
King's Bench in England. 6 Wendell, 114.
It was the duty of the marshal to execute
the process. Judicial Act, sec. 27; 1 Story'a
Laws U. S. S2. The action against the mar-
shal, by suit, may be an inadequate remedy;
and under any circumstances it is one of great
delay and expense. The provisions of the
statute of the United States referred to, giva
the courts full power to enforce the execution
of process. If the marshal shows no sufficient
cause for disobedience, he is in contempt, and
the injured party has a legal right to compul-
sory process, aa where he does not return a writ
or bring in the body.
In the present case, the marshal received proc-
ess commanding him to levy on certain prop-
erty described in a petition annexed. Be wai
desired to seise on a particular and speclBed
tract or piece of land, and to sell It. It wa«
not a general 'execution against all [*K8t
the property of the defendant, but an ex*-
cution in rem. It was his duty to proceed
under Uie mandate of tha eourt. U he tI<^
1S3S
Thk lAtt AND FiBi Irbukahck Cokpakt of Nbw Tobx t. Adaxb.
C81
latcs thii duty, if he refuM* to obej the com-
Bund of the writ, ha miij be liahte to ui ao-
tkHii bat thla doea not eieinpt bim from the
power of the court, l^e marshkl of the Dis-
trict Court returned « reaaon for not executing
the procesi, which the court below pronounced
■nfBcient; but if thla court ahall oonaider It
insufficient, the injured purt;r liae 4 right to «
A* to the BufficieBCj of tha return. It ia to
be obeerred that it contains no evidence of the
fmolveiie)' of the defendant, but the word of a
peraon who waa no more than a proriaional ayn-
tic The ceasioD of the propertj waa made on
the Dth of March, and tha execution iaaued in
April. The cesaion did not expiesaly daveat
the eatate of the inaolvent; and if this waa tha
aSaet of the proceeding, it waa auch hf iaipU-
cation only. But what did the ceasion paial
Hothing more tliui tlie intereat of Adams, and
tUa eonld not affeet prior llena. Theae Uena
wer« not to be afleeted ot impaired by the cw-
rion. To delay the fruits of the execution,
hf pnrentlng ile opemtion. would impair it.
And tha lien of the petitionera waa a apeciat
The law of Lonlaiana of 1817 did not attempt
to operate on aecuritiea of thia Idnd. The law
of 1826 waa pasted two jreara aubsequent to the
mortgage, and coulii not affect it. In fact, a
nit on tbemortgageby the petitioners waa then
depending; the premiaea were then in the ac'
toal custody of the maralial, and bis proceedin£
ifainat them had been enjoined, but the inJUH-
Iwn did not op«rate as a discharge.
By the application of the mortgage sa, ;
Uareh, 1B80, tha Circuit Court obtafiied Jnrl
diction in rem, which lias never been loat, uid
eannot be ouated. £ Uartin'a Kep. £62, new
seriea; 2 Wheat 200; 1 Oalliaon, 168; i Johaa.
Ol Rep. 209.
Hw Judgment rendered by Judge Hobertson
wQl be considered as signed, if It ought to have
been signed.
When a plaintiff, in an execution, haa a clear
right to proceed against a specific thing, he
may Inaiat on the sale of it, under an execu-
tion, without giving an indemnity. It is not
•SI*] *the demand of indemnity which gives
a ri|^t to it, but there must be a sulNta^atlal
anae for apprehenrion In the marahal to au-
thorin hia inaiating on It. It b no eanae for
indemnity when an oiTIeer ia asked to sell a
tract of land apedflcally subjected to the proc-
ees: >U that can be aoM ia the right of the
party defendant. In tile procees; and if this
right Is not valid, the sale injures no one.
If there is a law of Loiiialana which discual-
i&ea a party who haa become Insolvent from
appearing in court, It can have no operation in
a court of the United States. Nor can the pro-
visions of the Insolvent law of Louisiana, which
transfer all procr«(lingB ajrainst insolvents in
other eoarts into the Pariah Court, or the Dis-
trict Court of the State, operate on proceed-
ings in the courts of the United States. If this
eonld he done, the provisions of the Consti-
[nf ion of the United States would be aubverted.
Mr. Clay, contra. The attempt of the peti-
tionera, ia tUa ease, is to exonerate themselves '
and their agent from the general laws of tha
land; and to obtain for themaelves peculiar
privileges and advantages, to the injur; of
others. While the laws of Louisiana are ap-
plauded for their justice, their adminiatrstion
It should alao be observed that the counsel
for the petitioners has mistaken the tribunal
before which the proceedings in eases of insol-
vents' estates are entertained to any effective ac-
tion. The; commence before the parish judge,
who is a notary; before him the preliminary
proceedings are instituted: but they are trans-
ferred to the District Oouit of the pluce, a tri-
bunal of high rank, and the judge of which
haa the htgheat talents and character.
An Inspection of the proceedings in the case
of TTilson's Heirs and of Adama, will result in
a oonvietion that they are all regular. Nothing
ia to be seen In them of any other character.
being disappointed in thla, lie returns to the
court of the United States, end endeavors to
counteraet and overleap all those proceedings.
A great and important general principle ia to
he examined in this ease. What are Uie pow-
sra of the courU of tha United 'Statea [VISS
in eases between dtiiena of dilTerent Stateal
Certainly, in theae eases, the law is the eame
for all parties. The law which is applied in
the State eourta. In cases between their own cit-
isans, will be applied by the eourts of the
Union in suits brought Into those courts. The
local and State laws will be enforced in both;
the same rules of justice will be maintained;
for the establishment of eourta of tha Unit«d
States waa not to authorica the admlniatration
of diffwent iawa, but waa because it was con-
sidered that in the national tribunals, greater
eonfldenea in their impartiality would prevail
among suitors proceeding against citiiens of a
State to which they did not belong.
If the purposes of establishing national eourta
had been other than these, it would not have
been endured by any State in the Union. To
apply a diflerent, or a higher rate of jusUce In
the case of a nonresident, would not be permit-
ted. If the law regulating the proceeding of
syndics in insolvent cases haa eatabltsbed rights
binding on the citizens of Louisiana, that law
must be applied to citisens of other States, un-
leaa it shall interfere with some provision in the
Constitution of the United 8Utes.
The Insolvent law of Louisiana is in effect a
bankrupt law. Although, under the acta of
IB17 and 1823, the penon of the debtor is not
exempt from the power of the creditor, yet, by
applying to the civil court, and having the
aignaturea of two thirda of his creditors in
favor of the purpose, he may, by an order of
the court, be exempt in his person from his past
debt). It is, then, a tuuikrupt system, biniling
on the cltlsena of Louisiana, and on those of the
other States.
Various privileges are secured in favor of
creditors by the laws of Louisiana, and prefer-
a given which cannot be disturbed.
The highest security on real estate, in for the -
ipnid purchase money; that of a vpndor, on
1 eatnte sold by him. 10 Martin, 448.
There are two modes of procf^eding under
tlie insolvent laws of Louisiana; one voluntary.
237
bU SonBUB CoDBT or t
the other compulsory. But when the cesBton
under a Totuntary subjection to the law is ac-
cepted by the judge, the casca, and proceed
IngB in them, are afterwards the same. Adams
made a voluntary application, but the judge
accepted the cesbion, and all the provisions of
584*1 the laws 'were brought into full opera-
tion. It could not afterwards be withdrawn.
Thia case (referred to 10 Martin, 44B) shows
that a mortgage creditor muat come in and re-
ceive payment from the syndics, nonitbatand-
ing hia mortgage- All tlie estate of the insol-
vent is devested, impliedly, by the Act of 1817,
•xpressly by the Act of 1823. That case shows
that a creditor having a lien cannot take the
property and eell it, but muat leave it to the
administration of the syndics, and take pay
ment of his lien through them.
Ur. Chief Justice Harsball aaked if there
is any taw which secures the rights of mort-
gage creditors T
Mr. Clay. The syndics act to prevent a scram-
ble among the creditors for the effects of the
debtor, and to take the property of the insol-
vent out of their hands, The^ take the proper-
ty, make a tableau of distribution, regarding
the lien creditora according to their respective
aituations, giving each hia particular rights in
the diatrihution ; and an equal distribution is
made ot the residue, only, among creditora of
equal condition. No matter what the lien or
preference may be, it ia upheld and respected
in tbia distribution. Cited, the thirty-fifth sec-
tion of the Act of 1817.
By the law, if the mortgage creditora insist
on a sale, it must be made. There is, then, no
dilTerence as to the rights of those creditors,
under the general or the insolvent laws. There
is, however, a difTerence in the result; as, if the
property is sold by the syndics, there will often
remain a balance in favor of the general credit-
ors; if diapuaed of by the syndics, it is not per.
mitted to be sold for leas than its appraised
value; but if sold by the marshal, no such re-
•triction prevails. 1 Martin's Rep. N. S. 495.
The only change, then, made in the relation
of debtor and creditor, is in the remedy, or
rather In the mode of using It. The security
of the lien creditor Is not impaired. It is not
tiTe,as to the notes to become due. and as the;
became due, a judgment for the amount was to
be entered, not was entered. It was not in the
power of the judge to go beyond what was due.
It is contended for the petitioners that the
transaction is the law between the parties; ad-
mit this, but yet it was not a judgment, it only
gave a right to a judgment. It is the highest
evidence of their rights; hut parties cannot
erect courts. The provision is that judgment
shall be given as the notes become due. If the
transaction is the law of the parties, look at it.
It declares that Adams shall go intocourt from
time to time and confess judgment, and in bis
default his successors or attorney shall do it.
This shows that judgment waa not to be given
without the action of the party.
From a part of the contract, it appears that
judgment was to be entered as the installments
became due. The party cannot be allowed to
postpone, indeflnitety, the entry of the judg.
ments. Judge Robertson directs that whenev-
~ "".e sums become due, the judgment on each
shall be entered; but the party has not
done this; he waited five yeara, and then he
into court and asked for a judgment for
the whole sum.
This eaae is not like a bond with a penalty,
the debt payable by installments. In such a
case, the judgment is given for the whole pen-
alty, according to the terms ot the bond.
'Before the statute of William ni. 1*S8«
the party to a bond was bound for the peaalty,
and could only obtain, in equity, relief^ on tba
payment of the sum actually due.
In the case before the court, the Act of 1S17
was in force before this mortgage was given.
B8ii'] The law in force at the 'time of a con-
tract is incorporated in it, and the mortgage
was taken with the knowledge that in the event
of the insolvency of Adams, the property
ttcdged would be administered according to
he insolvent law of Lotiislsna; and notwith-
standing the lien, the rights of his other credit.
ors would be regarded. What was the decision
of thia court at the last term! The decision
waa no more than that the judgment should be
signed; merely that a ministerial act ahould be
performed. The court had no right to look at
the consequences of that act, nor did it.
The question Is then presented, what is this
judgment which was signed by Judge Harper T
Was it. or was it not, a judgment for the sub-
sequent installmentsf A slight reference to the
terms of the judgment as it stood before Judge
Robertson, and as, under the mandate of this
court, it was perfected befora tha present dia-
ass
Could an action of debt be maintained to r
cover the sum prospectively to become dua by
the judgment of Judge Robertson! It could
not; for it was only a promise that judgment
should be given, and no euit could be instituted
for more than the actual amount of the judg-
ment in 182S.
The law of Louiaiana Is, that the party ask-
ing a judgment on a warrant of attorney muat
make an affidavit of the debt, and that it ia un-
paid. This regulation was not complied with
in the case before the court; the aflidavit doea
not state that the debt is due and unpaid. Law
of Louisiana respecting affidavits (Old Civil
Code, 460, art. 1; 10 Martin's Rep. 222) de-
cides this.
It has been suggested that the district judge
should have amended the judgment so as to in-
clude the additional sums. There was nothing
10 amend by. The party might entitle himi^clf
the judgment for those sums, by complying
ith the forms required by the law, and the
practice of the court. No case was made out
before the district judge; and the time whiob
had elapsed since the first application for judg-
nt, from 1826 to 1834, was properly to be in-
red Into and explained. The application
was to give the judgment a retroactive effect;
and this was not warranted by the transaction
or by the law. If the rights of the parties ar«
to be maintained only by the transaction, the
modes of proceedings which it prescribes ex-
clude others.
Supposing the judgment could not be amend-
ed or extended, did the representative of the
petiticMwra, Mr. Barkar, present himself before
Peten •,
ISM
Tub I^n aud Fibe Inbub&nci CouFAni or Niw Vosx v. Adaiu. tM
tha Ustrlet Court witb powers authoriilng htm
to letT The power to confeas judgment coutd
not be conferred hj ^nj warrant on the cor-
pontion. A corporation axiats by its [aw of
<:re>tion, *ad there u no authority in Buch a
bod; to appoint aa attorney in fact. Id this
CMC Adama gave a power to Mr. Eckford, not
le the corporation^ but the power under which
Mr. Barker claimed to act waa not derived un-
iu Mr. Eckford. It U K general power to coi-
bet debt*, not given by the aucceasora of Mr.
Eckford, but derived fram the Mercantile In-
B93*] Burance 'Company, who were the trans-
[crees of the debta due by Adami to the Life
and Hre Inaurance Company.
U ia eiao to be coniidered that all the partiea,
the syndics as well aa Adams, ahould have had
notice. Adama had no existence aa to this pro-
caeiing: his insolvency prevented his interfer-
Bicc; the effect of the judgment on the rights
of Us creditors, represented by the syndica,
w»* to be considered; and notice of the motion
for judgment should have been given to them.
This the diatrict judge thought necessary, and
ha thought correctly.
It liaa been decided in Louisiana (12 Martin'i
Bep. 895) that entering a judgment on a pow-
er to confess one is a judicial action. The
wbola matter upon which the judgment
to be entered was to be examined.
power of attorney, the existence of the debt.
the Urms of the affidavit; alt these were to be
looked to. The judge would be unworthy of
Ilia situation if, without citing the parties in.
tetcsted, or giving them an opportunity to ap-
ptar, he tiad proceeded, as he waa asked to do
by the agent of the assignees of the petitioners
It is not necessary to decide whether thii
ease can be taken out of the federal court and
placed in the District Court of Louisiana, for
the action of that court on the claims of thi
petitioners. The constitutional provision it
sufficiently aatiafied, when suit may be brought
against the ayndics. By the insolvent law the
^ndiea might be sued; and this right to sue
them was well known. Suits against syndics
have been brought in the Circuit Court of the
United States. The case of field et a1. v. The
United State*, before this court at laat term
was a suit againat ayndics. Field et aL t. The
United States, anU, 182.
It is kdroitted that there is a difficulty when
a suit has been commenced in a federal court,
ta transferring it, in consequence of the insol-
vency of the defendant, into a State court. This
nay be productive of differences between the
State courts and those of the Union; but it Is
one of those difficulties which result from our
peculiar system of State and federal govem-
nenta; and it will be arrested and prevented
doing evil, as man^ others have been, hy the
presiding epirit which has so often rescued the
IDvemment of the United States from embar-
rasament.
It haa been atated to be strange that after bis
SIS*) insolvency, 'Adams could not confess
a judgment. Thia ia the law, and it Is the same
in England in bankruptcy. The law of Loiii-
•iana takes away this faculty, and all the
rights of tha inaolvent are transferred to the
The petitionera were not entitled to a new
*-* — ent, or to ait axtetision of that already
tfa.'"
. entered, for they had not brought themaelvet
within the rulea of the court or the law on the
Bubject. Will this court auhstitule themsclies
for the inferior court, and say this ia a case for
a mandnmusT A mRndamua, properly issued,
operates mechanically on a judge. It operates
physically, not on the mind of the officer. In
the case of The United States v. Patterson,
this court refused to usurp the power of tha
judge to decide.
Will the court transfer themselves to Louial.
ana, and say that tbej will compel thp entry of
the judgment! If this cannot tie done there
remains the question, whether this court will
undertake, in thia state of things, on a petition
for a mandamus, to set aside the laws of Loui-
siana, and say that a party who has placed
himself under the insolvent laws of that State
shall be siibjccted to the process of the court
of the United Stalest If the district judge is
to compel the marshal to execute the process
by aelling the estate, this will be the case.
The powers of a judge are judicial end min-
isterial. So are those of a marshal. These are
judicial when he summons a jury to decide
'hat la the action rciiiircd from
the judge when he ia asked to attach the mar-
ahftl! He is asked to decide one of the moat
difficult questions of conflicting laws that can
be presented — whether the law of Louisiana
shall give place to the law of the United States.
This is a judicial queation of the highest order,
and this coiirt is called upon to take it from the
judge, and oblige him to compel the execution
of the process by the marshal.
Mr. Porter, afiainst the motion.
The power given by Adams to confess the
judgment waa to be exercised in his default,
but it does not appear that he was called upon
to enter it. The execution of the power, with-
out a previous demand on Adams, or notice to
uthorized and void,
d objection to the execu- [*5Bt
tion of the power is, that it was given to Ei'k-
ford, who is dead, and the agent of the plain-
tiffs derives no power from him^Adams, the
frincipal, has lost his standing in judgment, by
is insolvency, and no one could act as his
agent. An agent, Mr. Barker, who claims to
be the agent of Adams, can exercise no powers
which hi* principal could not exercise. By the
decisions of the courts of Louisiana a party
cannot aend a confession of a judgment into
court and have it entered. It must be submit-
ted to the judge for his consideration, and he,
after an examination, must sign it. Without
his signature it ia not a judgment. He acts by
his judicial functions, and is not a mere minis-
terial agent.
The questions involved in thia case are of
eat importance, and their decision by this
iirt is looked for with great anxiety.
When the execution against the property of
Adams was put into the bands of the marshal,
property waa in the hands of the syndics,
the ceaaion made under the iuRolvent law.
After discussion and examination in the Uis-
:t Court, it waa held that the plaintiff* were
to go into the State court for peyment of their
debt under the proceedings of that court. This '
was not a transfer of the case from tlie Court"
of the United States to the State Court, but ft
as9
Bdpbkmx Coubt or the tlHiriD States.
w»* od1}> deciding that, aa the property wa« in
the Stale Court, there tbe plaintiff* ifaould ob-
tain paymeDt of their lien, which was not im-
paired by any proceeding! in the State Court.
If this court shal! say that the marshal shall
take the property which has passed from an in-
solvent into the hands of syndics for distribu-
tion, it will subject the marahHl to great difB-
euities. Cited, S Miller's Louisiana Reports,
337.
The statute of Louisiana of IBIT regulates
siana, 136) enacted that the cession should be
made immediately en tbe application of the
Insolvent for the beneRt of the laws.
Shall not Louisiana be permitted to say that
Eroperty within her own limits shall by her
LWH pass to creditors by session, and that the
judgments of tbe courts of the United States
■hall not interfere r
If, by tbe laws referred to, the property of
6 to*] insolvents cannot be 'placed in the
hands of the syndics for sdmini strati on, and
this without alTecting the prior liens of a cred-
itor, no laws for the transfer of the property of
creditors can be effectual. The proceedings
in the District Court of New Orleans show
that Mr. ^rlcer, representing the petitioners,
endeavored to obtain the appointment of syn-
dics; and disappointed in this purpose, he
turned round, and seeks to set the law under
which he was desirous of acting aside. He
thus became a psrty to those proceedings and
was bound by them. This point has been
settled by tliis court In the case of Clay v
Smith, 3 Peters, 319.
Mr. Jones, in reply, contended that the Con-
atitution and laws of the United Slates had
guaranteed to citizens of the United Sti
right to resort to the courts of the United States
for the recovery of debts due to them; and by
DO State laws or State proceedings could these
rights be interfered with. The remedy for s
wrong in the courts of the United States, is s
part of the privilege secured by the Constitu-
tion; and the motives which induced the intro-
duction of the provision into the Constitutior
establishes the exclusive power of the Federal
tribunals in such cases. It was considered as
securing an impartial adminiatration of justice;
And the confidence which such a provision
would necessarily produce was one of the means
by which the permanency of the government
would be established.
In the case before the court, the petitioners
had a mortgage on the property of their debtor;
and it was one which, as it was executed before
■ notary, entitled the creditor to proceed with-
out notice to the debtor, by the via executiva.
under the laws of Louisiena, and seize and sell
the property without notice to the debtor.
Upon the issuing of this ptocess the creditors
were interfered with by an injunction, and
after this the "transaction" was entered into
which has been fa frequently referred to, and
is fully before the court.
The entering into this transaction was not an
abandonment of the rights of the petitioners,
It was no more than s. suspension of their ex-
ercise, and the Men of the judgment and execu
tion was not removed, but proceedings under
tt were postponed for the period statad in the
S40
transaction. When a creditor 'takes a [*6*1
judgment In addition to his prior security, ths
security fs not avoided.
The transaction, and the judgment entered
in 1826, were a judicial lien on the property id
the debtor. They authoriied a sale of the
property as soon as the period arrived which
was fixed by the agreements of the parties, and
were a grant of execution by a decree; and
this judgment, and the righti of the parties
under it, cannot be disturbed. No Inquiry caa
be made into the validity or legality of the
judgment in any other mode than by writ of
error. All the process t« enforce it la given 1^
the judgment.
The transaction Is equivalent to a decree of
foreclosure. If the judgment upon it was
interlocutory, was not the district judge bound
to make it flnal.
Mr. Jones also contended that there was no
law of the State which deprived insolvents of
their right to appear in a court of justice; cer-
tainly no law which prevented this in a court
of tbe United States. The effect of such a rule
would be to take from the courts of the United
States their jurisdiction over persons within
reach of their process. Such a law would b*
against the Constitution qf the United Statca.
He also contended that the provisional lyndie
(and no other syndic existed when the execu-
tion was in the hands of the marshal) Is bnt a
depository of the property of tbe insolvent.
The syndic has no rights in the property, he
has only an equity of redemption, and may
devest the rights of prior lien creditors, only
by paying off the incumbrances.
In this view of the case, the action required
of the district judge, when he was called upon
to sign the judgment for the residue of the
notes, was only to be ministerial; tbe parties
had previously adjusted al! other questions, and
the form of an entry of judgment, accordinf to
the rules of the court, was only required.
The powers held by Mr. Barker were fnll
and Buflicient for him to confess tbe judgment.
He acted under the authority given by Adams
to Mr. Eckford, which extended to his sue*
the president of the Life end Fire Id-
Company, who took his place after
him. But if this was not lufncient, his author-
ity under those who had a transfer of the debt
due *hy Adams, under the Mercantile [*BBI
Insurance Company, was complete, and waa
Mr, Chief Justice Hsrshall delivered tbt
opinion of tbe court:
The petition for a mandamus states, aintng
other things, that Christopher Adams, of Iber-
ville, In Louisiana, on the Iflth day of Janu-
ary, 1824, at New Orleans, executed and
acknowledged before a notary public, a mort-
gage of a plantation, called the Belle Plantatioi^
Iberville, with seventy slaves, for securing
the petitioners divers sums of money, amount-
ing to 32,522 dollars and SO cents, at different
periods, the last payment to fall due on tbe
ISth day of January, 1829, atl bearing interert
at the rate of seven per cent, per annum. At
the time of executing the said mortgage, sundry
ites were also given for the payment of th*
me sums of money-
In consequence of the failure of the said
fS3S
Tbb Lute and Fiu iRauiANci Coupaht or Nxw Yubx t. Asamb.
Adklni to pa; bdj port of the iald debt, appli
eation wkb in*d« to the HonorAbte Tboma* I
Bobertaon, then Judge of the Diitrict Court a
the United Statea for the EoatEni District of
Louiaiana, for an order of Beiiure and sale
wbo gnnted Ibe same in the following words:
*Xet tb« mortgaged premises, set forth and
•tated in the plaintilTs petition, be seized and
«old, ■■ therein prayed for, ftnd in the ma
dir«et«d by law, biihjeet to the payment of the
debt! of the plaintiff. Thomas B. Robertai
Jndge U. S. Eastern District of Louisiana.'
John Nicholson, the marshal who seiied the
Bortgaged property and advertised the same
tor «ale, waa stopped by a writ of injunction,
OB which the following return was made :
"ReeeiTcd this writ of injunction thia IBth of
Sfarch. 1828, and served a copy thereof, and
erf plkintifTs petition, on Ripley and Conrad;
on sune day released the property at soit of
Ufe and Fire luau ranee Company of New
Ifork against Christopher Adams, and returned
into court the 20th of March instant."
On the 2d day of Hay, 1826, the petitioners
entered into a transaction with the said Chris-
topher Adams, before a notary public, in which
tt waa stipulated that the injunction be dis-
■cdved, and tn which the defendant agreed to
eonfeas judgment, and did confeM judgment,
BBS*] on all the notes then due. *He further
■tipnlated to confess jud^ent on the residue of
the notes. In the deed of mortgage mentioned,
•• they should respectively become due, "and
in default of auch confession of judgment, the
■aid Christopher Adams did, by the said trans-
action, constitute and appoint Henry Eckford,
prceident of the life and Fire Insurance Com-
paiij, or Iiis uucceesor in office for the time
being. Ilia attorney in fact, and Irrevocable, in
Us name and stead to appear in said court and
caoae judgment to be entered up against him,
the said Adama, for each and every of said
notes, with interest, as aforesaid, whenever the
iame •hall arrive at maturity, a« aforesaid."
And the said Adami farther gave to the said
Bewy Eckford or to his luccessor tn office for
the time being, attorney as aforesiUd, full
power of mbatftntlou In the premiaea
And the said Ufa and Fire Inaurance Com-
panj. In eooaideration of such confession of
judigment, and preserving all their liena, mort-
pigea and prefereneea in and over the mort-
gaged premises, agreed to stay execution until
the 18th day of January, 1829, when the last
■ota would arrive at maturity. It was further
agreed that this transaction aball be entered
npcni the records of the court of the United
BtatcB for the Eastern District of Louisiana, as
a decree of said court, and shall have all the
force and effect aa though it were entered up
la open court.
In pntauauee of thia transaction, a judgment
waa recorded in the said District Court on the
lath of May, 1826, which the Judge died with
out signing. The petitioners then transferred
thrir interest in the said debt to Josiah Barker,
ia tmat for the Mercantile Insurance Company
of Hew Tork, with power to use their names
la the collection thereof. In the instrument of
tranafer, the said Life and Fire Insurance Com-
pany eonatitatad Joaiah Barker, his executors,
•dmiaistratore and assigns, thdr true and law
fnl attorney and attomeja irnvoeaU^ in their
• li. cd.
-lamcs, hut to and for the use of the said Her-
antile Insurance Oompnrjy of New Yo'k, to
pursue and enforce iu nil ooitrls and places
whatever, the recovery aud payment of the said
noney.
The Honorable Samuel H. Harper, the auo-
ressor of the Uonorsble Thomas B. Robertson,
having refused to complete the said judgment
'jf his predecessor by signing it, a mandamus
'was directed hy this court, ordering [*5t4
him to do so, in compliance with which, the
said judgment was signed.
The judgment is in these words:
"Life and Fire Insursnce Company of New
York V. Christopher Adama.
"In this case, the plaintiffs having tiled In
thii court a transaction, etc., 'it is therefore
ordered, adjudged and decreed, that in pursu-
ance of ssid transaction, the injunction in this
case shall be dissolved; and it is further ordered,
adjudged and decreed that judgment be en-
tered up in favor of the plaintiff, in pursuance
of said transaction, for all the notes thernn
specified, which have become due and payaUa,
with seven per cent, interest thereon, etc., to
wit, the sum of 1,600 dollars, etc'
"It is farther ordered, adjudged and decreed,
in pursuance of the transaction aforesaid, that
whenever any of the notes mentioned in the said
transaction as not yet arrived at maturity shall
licconie due and payable, that the judgment
shall be entered up for the plaintiffs upon all
and every of the said notes as they arrive at
"It is further ordered, adjudged and decreed,
that there shall be a stay of execution, etc.,
until the 18th day of January, 1820; and that
if the amount of the jud^'ment in this suit is
not then paid, etc., that the lands, slaves and
movable property described in the mortgage
mentioned in the plaintiff's petition shall oe
sold according to taw, to satisfy the judgment
in the premises."
Application was, at the same time, made to
the District Court, to enter a further judgment
for the notes whith had become due subsequent
to the Iflth day of May, 1826, which was re-
The petitioners insisted on their right to re-
quire a judgment for the whole sum, under the
irrevocable power given to confess it; but the
judge declared that without notice to the de-
fendants, he would permit no further judgment
' 1 be entered.
The petition statea at large the difTerent
views entertained by the judge and the peti-
tioners on the application. At length the fol-
lowing rule was entered;
"Ijife and Fire Insurance Company of Mew
York V. Christopher Adams.
"On motion of George Eustis, counsel for
the plaintiffs, on 'flling all the notes [*SBS
referred to in the transaction on flie, it is
ordered, in pursuance of the mandamus of the
eme Court of the United States, requiring
lionoi^rsble judge of this corrt to sign the
judgment rendered in the premises and to order
execution to i.ssiie, that Execution do Issue for
the wliole amount of the judgment."
Under this rule an execution was Issued for
the whole sum claimed on sll the notes, without
any direction that it should be flrst levied on
the mortgaged property. On this account, the
Ml
BoraBME Coun or tub Uicnm States.
ItU
oujvlwl, bj order of the plaintifTB attorney, re-
turned ft unexecuted, and s new execution was
demanded.
In Gonaequenoe of the refiinal of Jtidfre Har-
per to enter judgment for the residue of the
notes, Joaiah Barker caused a paper to be read
in open court, in which, bb HuccesBor to, and as
having entire control over, the said notes, and
in virtue of full and irrevocable power* from
the Life and Fire Insurance Company of New
York, he did, in behalf of the defendant,
Christopher Adams, h; virtue of the compro-
njse entered into between him and Josiah
Barker, agent for the said Life and Fire Insur-
ance Company, on the 2d of May, 1826, con-
tirmed by decree of this court, contest judg-
ment on all the aaid notes; which confession he
requested might be entered on the clerk's min-
utes. The judge refused to allow the entry,
without notice to the opposite party, but of-
fered to grant a rule requiring the defendants
to show cause why the judgment should not
be entered. This rule being declined, the
judge permitted the confession to be filed, sub-
ject to all legal exceptions. An execution for
the whole sum was thereupon issued, which
was accompanied by a letter from Josiah
Barker to the marshal, requesting him to give
notice to Christopher Adams, and to Nathaniel
Cox the provisional syndic of the estate of tlie
■aid Adams, who had become insolvent, that
he, the marshal, considered himself in posses-
sion of the property in virtue of the former
seizure, and should proceed to sell the same;
should the marshal refuse to do this, the mar-
shal was required to seize the property and
to sell it, by virtue of the execution then in his
Supposing from the proceedings of the court
in a aimilor esse, in which also he was counsel,
that the execution issued in this case would be
quashed, and the said marshal having refused
to proceed without indemnity against the estate
ftS6*] of 'Christopher Adams, which had been
surrendered under the insolvent law of Loui-
siana, the said Joseph Barker requested the
marshal to return this second execution.
On th» 30th of April, 1834, a new execution
was issued on the judgment of the 18th of May,
1826, to be levied on the mortgaged property in
whose ever hands it might be found.
The marshal refused to execute this writ,
further than by giving notice thereof to Na-
tbaniel Cox. the provisional syndic for the
creditors of Christopher Aiis-ns; whereupon a
Giition was presented to the Hon. Samuel H.
arper, praying the interposition of the court
by commanding the marshal to sell the mort-
gaged premises without requiring any bond of
fndemnily ; or by granting a rule requiring the
marshal to show cause why he should not be
attached for contempt of the court, in disobey.
ifng or refusing to execute its mandate.
The rule was granfefl before the time for re.
ittiming the execution had elspaed, and was
-thecrfore discharged, whereupon the marshal
^made -the following return:
■■May Ist. 1834.
"Gave notice of the sefnire to Nathaniel
Cox, Esquire, provisional syndic of C. Adams.
the defendant, the property havinc; been pre-
viously surrendered In' him to his creditors,
and accepted by the Court of the Fourth Ju-
dicial District of the State of Loniaiano, Bad
placed under the charge and control of N. Ooz,
Esquire, a« provisional syndic thereof. Th*
further execution of this writ eould not be ef-
fected.
"Returoed ISth of May, IS34.
"Jebn NichoiMM,
"U. S. Marshal.'*
On tha succeeding day * sew rule w^
awarded against the marahal, who appeared on
the return day thereof, and showed for cau«»
r'nst it his return on the writ as recited
'C.
After solemn argument, the judge determiDed!
the return of the marshal that b« found the
Sroperty in the hands of others, waa prinia>
icie evidence that it belonged to otWrs; uid;
that he should not require the marshal t* take
the responsibility of enforcing the exacutioBi
without indemnity.
(hi the 27th of May, application was made tc
the judge to 'sign the confession of [*5ST
judgment filed by Josiah Barker in the name oli
Christopher Adams, on the 10th of March,
subject to all legal exceptions, due notice of thi-
filing thereof having been served on Chriatophei.'
Adams and Nathaniel Cox; hut the judge re-
fused to sign the same, saying that it was not a>
judgment of the court.
The petitioners, conceiving that they are en-.
titled to have the execution issued on the SOthi
day of April, 1834, enforced against the mort-
gaged premises by the marshal of the United'
l?tates, and to have a further execution for th(
balance of their aforesaid claim; either by tin
authority of the aforesaid mandamus, or by
having the aforesaid confession of tlie ICtfa of
March last signed; or by virtue of the original.
order of seizure and sale or otherwise; pny a.
further writ of mandamus, directe<l to Somuel
H. Harper, Judge of the District Court of tbe-
United states for the Eastern District of IjOni-
siana; and if necessary, also to John NicholsMir
marshal of the said court; or otherwise direct
such a course of proceeding aa will secure the-
due execution of the mandamus heretofore
granted by this court, and afford them such
other relief aa they may be entitled to in the
premises.
Judge Harper appeared by his counsel, and
showed for cause against issuing the mandamua
for which application woe made;
That in obedience to a mandamus issued by
the Supreme Court of the United States, he did,
on the 7th day of March, 1834, sign a judg-
ment entered in this cause by his predecessor
in office, on the 18th day of May, 1826, and
directed that execution should issue thereon.
This was a specific judgment for the amount of
all the notes which had then become due, and
which were enumerated in a transaction be-
tween the parties then committed to record. It
was stipulated in this act of compromise, on
which the jiidjrnient was entered, that the de-
fendant. Christopher Adams, should confcM
judgment on each of the remaining notes as it
should fail due; and in default of such con-
fession, he confcnted that Henry Eckford, Presi-
dent of the Life amd Fire Insurance Company,
or hia succexsor in office for the time being,
should appear in court and cause judgment tr>
he entered B^ainst the defendant. No confes-
sion of Judgmen.! haa been «ster]B4< nor hoa any
.a-tft
Tiic i
t. XsuVK^xoK CdupAsi 0
1 VoHs f. AuAua.
i97
]udpin«tit l»pa n-ndered on •ny one of th»
ft»8*| Mill notPS. Whnn th* jiHigmeiit *of the
18th or Mfj. IB26. WHS ligncfl, Joaich Barker,
agmt for the plnintiR'a, olTcT^d to ccnfcw judg-
nent in the nnme ami on belwlf of Cl.ristoplier
Jdams for the reaidiic of the notci. The court
refused to receive this cnnfpSBion for the fol-
Jorring n-nsons: The plaintiffs, inatead of caus-
ing judgment to be confesaeJ, in uunforiuity
vitta the stipuliition contained In the '
April, 1B29, itfter all the notes hnd become due,
when a neir xuit \n9 instituted hy the Mercan-
tile Insurance Coin^nuy of New York, to
whom the claim hsd been assigned, to ri^orer
the whole amount due, including the judgment
of the tBth of May, I82B. Thi< defendant Kled
an answer, charging the plaintilTs, Hiuong other
things, with nsury; upon which they, on (lie
IZtb of January, 1S31. suffered a nonnuit; when,
after this procceaing, the agrnt for the ptain-
tilTa offered to confess judgment in the nnme of
thi> defendant, no notice of this intended con-
fession hnd been given to the defendant, and a
rule upon him to show cause against the judg-
ment, was declined by the p'aintilfs. Had the
person offering to confess judgment even been
the regularly constituted artorney of the de-
fendant, there would have been, under all the
circumFtances of the case, some objection to
receiving his confession without notice. But
be was not the regular attorney. In the trans-
action of the 2d of May, 1826, Christopher
Adam^ stipulated to eonfeas judgment on all
the notes as they should become due. "and in
default of such confession, he constituted and
cessor in office for the time being, hia attorney
in fact and irrevocable, in his name and stead,
to appear in court and cause judgment to be
entered up." etc.; and the said Adams further
gave to the said Henry Eckford, president as
aforesaitl. or to his Giipccssor in office for the
time t>ein<;. attorney as aforesaid, full power of
t ibstitution in the premises, etc. Josian Barker
IS not the substitute of Henry Eckford, or his
mtereeaor in office for the time being.
The permission to Die this paper, subject to
all legal exceptions, did not convert tt Into a
Eonfession of judgment by the defendant or
Us attorney, nor could the mere notice that
■neb a paper was filed add to Its efficacy, there
faring no day fixed for contesting it. The
transfer of the claim to Joaiah Barker.
599*1 *'" tntat tor the Mercantile Company of
New York, does not substitute him for Henry
Bekford, or his sueresaor in office for the time
being.
If either the mortgage acknowledged before
the notary, or the transaction of the 22d May,
IB20, had itself the force of a judgment, no
mandamus would be required to order the ren-
iition of a nrw judgment; but these document*
TCqnire judicial action to make them operative.
It fa a iHrcumstance which ought to suggest.
•ad which has suggested circumspection in the
proceedings to be taken in this cai'ie, that
thDogh the judgment wna recorded in May,
1826, and Judge Robertson died late in 182ii.
snd bald several eonrts in the mean time, yet
ha never signed this Judgment; nor wm any
applfcaiien m
noles which a
though th^y amounted to six or seven.
In showing cause against a mandamus to
compel the marshal to lovy n.n execution on ths
mortgaged property wherever it may be found.
Judge Harper obi«rves that, after the eniiuia-
tion of thu e.veculii'ii, Josiah Barker addressed
a petitiou to the court, stating many fauti i-oo-
iiected with the execution, and complaining
that tiie maishal refused to enforce it witho&t
being indeiuniiied, and praying for a rule re-
quiring him to show caiiae why he should 'nut
be attached for on tempt in disotieying the
mnnriate of the court. The rule was Kroi.ted.
The marahal returned that 'he had ){iveu
notice of seizure to Nathaniel Cox, provisional
syndic of Christopher Adnnis, the defendant;
ilie '- ' ■ ■ ■ ■ ■ ■
iiy '
Court of the Fourth Judicial District of the
State of Louisiana, and p'aced under tlit ehargu
and control of Natlianitl Cox, aa proviaional
syndic thereof; the further execution of tha
writ could not be cffeelcd."
Accompanying this return was the following
k'tter:
"John Nicholson, Esq., mai-shnl.
"Dear Sir: As counsel for N. Cox, syndic
of the creditors of Chiislnplier Adams. I am
authiiriiwi to notitj you that any nltempt to
aeir.e the property in his hands, at the suit of
the 'Life ami Fire Insurance Company, [*flOO
will be resisted, and that jou will proceed
therein at your peril.
"Respectively,
"G. Strawbridgs."
The court was restrained from entering into
any inquiry in whom the property was vested
by the considerations that the creditors wlio
claimed it were not before the court, and could
not be brought before it on a rule upon the
marshal. Tbe trustee for the Mercantile Com-
pany of New York contended that the property
still remained in possession of the marshal,
under the order of seizure granted by Judge
Robertson; but the court was of opinion that
auch presumption would be extra variant, inas-
much as tbe injunction continued in force for
more than eight years; for. though dissolved in
terms by the judgment of May, 182(1. that judg.
ment, by the taws of LouisiatiD liad no force
until it was signed in purauami: of the mandk*
muB of the Supreme Court. In addition to this,
it appears, from the return of the marshal, that
the property waa released on receiving the in-
The judge also conceived that by a fair con-
struction of the tranaaction of the 2d of May,
1826. the plaintiffs must be understood to have
agreed to discontinue their auit, in considera-
tion of the dissolution of the injunction; oa a
prosecution of the suit, after the dissolution of
the injunction, was not within the intention of
the parties. He was also of opinion that tho
property being found in possession of a third
party is no prima fade evidence that it belonged
to that third party; but that this waa a ques-
tion which could not be investigated, on a rule
aRainst the marshal, In the absence of the party
intcrrsted. He was also of opinion that the
marKhnl. not being indemnified, and proceed-
iiiji at his pfril, ought to be governed by bis
GOO
Sui>iEMK CouiiT or TBI UiitTED States.
lUI
own judgment; »,n4 would maka himielf per-
•onally liable to the creditors of Adams, if they
■hould thereafter eatablinh their right to the
property ceded tn them. Thii liability lias been
eetablUhtd bj the Supreme Court of Louisiana
•gainnt this very maralial, in which the court
said that "if acting in his capacity aa marshal,
he wrongs a citizen of a State, he is individual-
ly answerable, and in her courts." In another
tm*« judgment waa given against the aame mar-
(bl*] shsl for the amount *of money made
by him on an execution, issued out of the IKs-
trlct Court of the United States, under which
he had seized and sold property in the hands of
tbe syndic of the debtor. The judge adds that
he has never thought it his duty to compel the
officers of the court to perform acts lor
benefit of others, irblcb might work their
Counsel have given more precision to the
general application of the petitiouers, by pre-
senting five separate and alternative prayers for
* mandamus commanding a particular thing;
each application founded on the rejection of
that which precedes it.
The first is for such an execution as that
which WBS issued on the 12th of March, 1834,
at the instance of the plaintiffs, being an exe-
eution for the amount of all the notea secured
by the mortgage and transaction in the petition
mentioned, to be levied on the mortgag«l prop-
erty; but if not sufficient, then on the property
generally of the said Christopher Adams, where-
of he was owner on tbe ISth day of May, 1B26,
into whose hands soever the same may have
The applicant does not inform us whether the
•xecution is to be issued on the judgment en-
tered by Judge Bobertson and signed by Judge
Harper; or on the confession made by Josiah
Barker, In the name of Christopher Adams, on
the 10th day of March, 1834.
Judge Harper has shown for cause against an
execution for the whole debt, on the judgment
entered by Judge Robertson on the ISth day of
Hay, lB2e. that the whole debt was not then
due, and that the judgment, in its terms, com-
prehends that portion of the debt only which
was actually due. He shows for cause against
Uiy execution founded on the paper delivered
l^ Josiah Barker, on tbe lOth day of March,
1834, that Josiah Barker exhibited no power of
Kttomey from Christopher Adams, and showed
no right to personate him. That the court did
not receive nis confession aa the confession of
Christopher Adams, nor enter any judgment
upon it. Of consequence, that act cannot war-
rant an execution of any description.
The record, we think, verifies these state-
If the cause shown against a mandamus to
Issue such a writ of execution as is asked, or
the judgment in its present state be deemed siif-
Bdent, then the petitioners ask for a manda-
009*] mus 'commanding the Judge to amend
such judgment; by extending the terms thereof,
•o as to make the same absolute upon all tbe
notes and sums of money enumerated in the or-
iginal transaction, etc.
To extend the judgment to aubjects not com-
prehended within it, is to make a new judg-
nant. TUs court ia requested to iaaue a man-
■44
damus to tbe court for the Eastern District of
Louisiana, to enter a judgment in a cauae enp-
posed to be depending in that court; not ac-
cording to tbe opinion which it may have formed
on the matter in controversy, but according to
the opinion which may be formed in this court,
on the sugsestions of one of the parties. This
court is sAked to decide that the merits of tbe
cause are with the plaintiffs, and to command
the District Court to render judgment in their
favor. It is an attempt to introduce the auper-
vising power of this court into a cause wbile
depending In an inferior court, and prema-
turely to decide It. In addition to the obvioua
unfitness of such a procedure, its direct repug-
nance to the spirit and letter of our whole ju-
dicial system cannot escape notice. The Suprema
Court, in the exercise of its ordinary appellate
jurisdiction, can take cognizance of no cose un-
til a final judgment nr decree ahall have been
made in the inferior court. Though the merila
of the cause may have been substantially de-
cided, while anything, though merely formal,
remains to be done, this court cannot pass upon
the subject. If from any Intermediate stage in
the proceedings an appeal might be taken to
the Supreme Court, the nppeal miiiht be re-
peated to the great oppression of the parties.
So if this court might interpose by way of
mandamus in the progress of a cauae, and order
a judgment or decree, a writ of error might lie
brought to the judgment, or an appeal prayed
from the decree; and a judgment or de-
cree entered in pursuance of a maodamus might
be afterwards reversed. Such a procedure would
subvert our whole system of jurisprudence.
The mandamus ordered at the last term di-
rected the performance of a mere ministerial
act. In delivering its opinion the court said:
"On a mandamus a superior court will never
direct In what manner tbe discretion of an in-
ferior tribunal shall be exercised; but they will,
in a proper case, require the inferior court to
decide." To order the District Court to give
'judgment tor tbe plaintiffs is "to direct ['COS
in what manner its discretion shall be exer-
cised."
Sufficient cauee Is shown against granting
this prayer.
In the event of this prayer being rejected,
the court is asked to award a mandamus to the
district judge, commanding him to consum-
mate the Interlocutory part of the said judg-
ment, by entering and signing final judgment
upon and tor all the notes and sums of money
mentioned in tbe transaction aforesaid aa not
being then due, and thereupon to iaaue eucb
execution, etc.
This prayer does not vary substantially from
its predecessor. It requires the same interfer-
ence of the Supreme Court in the proceeding*
of the inferior court white in progress, and th«
same direction how its discretion shall be exer-
cised. It requires a direction to the Dialriot
Court to give Judgment for one of the parties.
and prescribes the party for which it shatl be
given. The cause shown against granting th«
preceding prayer applies equally to this.
Should this lost prayer also be rejected, tb«
court is next asked to award a mandamus com-
manding the district judge to compel the mar-
shal duly to execute such prooeas aa may ba ia-
F»t«rB t.
TuK IdTE akd Fixe Iksuraxcb Compahi op Kkw ¥okb t. Adahs.
■ntd; notwithstandiiig the ceiBion of tiM estate
of the nid AdAma, aad the appointmeat of a
pravisional s^ndie thereof. It ia the duty of tlie
marshaJ to execute all process nhich ma; bu
placed in his hsods; but he performs this duty
at his peril, and under the guidance of law. He
•intt, of eouTM, exercise some judgment in its
performance. Should he fail to otraf the exigit
ot the writ without a legal excuse; or should
ke, in obe}ing its letter violate the rights of
otbcrs, be is liable to the action of the injured
party.
In the particular case in which the creditor
asks for a mandamus to the district judg
compel the officer to seize and sell the property
mentioned in the writ, that property is no
longur in possession of the debtor against whom
the process is directed ; but has been transferred,
by law, to other persons, who are directed, by
the same lav, in what manner they are to d'
pose of it. To conatrue this law, or to decli
the extent of its obligation, the questions must
be brought before the court in proper form, and
in a case in which it can take jurisdiction. This
case, so fur as it is before any judicial tribunal,
Is depending in a district court of the Upited
(04*] States, and perhaps *in a State court of
Louisiana. Tlie Supreme Court of the United
States has no original jurisdiction over it, and
cannot exercise appellate jurisdiction previous
to a final judgment or decree, further than to
order acts, purely ministerial, which the duty
ot the District Court requires it to perform.
This court cannot, in the present condition of
the case, construe judicially the laws which
govem it, or decide in whom the property is
vested. In so doing, it would intrude itself
into tbe management of a case requiring all the
discretion of Uie district judge, uid usurp his
The mandamus cannot be granted as prayed.
The fifth prayer asks a mandamus requiring
tbe judge to compel tbe marshal to execut« the
writ of execution heretofore issued, on the 30th
of April, 1834, on the said judgment, for the
amount of the notes of the said Adams, due on
lbs IHth of May, 1826, notwithstanding the
ression and other matters mentioned by the
marslisl in tbe return thereof.
This prayer differs from that which preceded
it only in the amount for which the execution
is to isauc So far as respects the inference of
tbe Supreme Court In construing laws not
regular]]' before it, and controlling the discre-
tion of the District Court, they stand on pre-
eisely the same principle. The objections,
therefore, which were stated to granting the
fourth prayer, apply equally to the fifth.
The court cannot grant a mandamus order-
ing the District Court to perform any one of
the ^>eclflc acts which hare been stated in the
petition; or in tbe more particular application
Boatained in the statement presented by
ewmsel.
nwngh the Supreme Court will not order
an inferin- tribunal to render judgment for or
•g^nst either party, it will, in a proper ease,
ci4ar such court to proceed to Judgment.
Bbould it he possible that in a case ripe for
jndonent, thn court before whom it was de-
peadiiut coold, perse veringly, refuse to termi-
Bat* tM caaat) this eoiut, without tadicsting
• I., cd.
the character of the judgment, would be re-
quired by its duty to order the rendition of
some judgment; but to justify this mandate, a
plain case of refuBing to proceed in the inferior
court ought to be made out. In Ex-parta
Bradatreet, 8 Peters, 5110, this court said:
"We have only to say tliat a judge must ex-
ercise his discretion in those intermediate pro-
ceedings which take place 'between ['COS
the inatitution and trial of a suit; and if. in th«
performance of this duty, he nets oppressively,
it is not to this court that application is to be
"A laandamiis, or a rule to show cause, Is
ssked in tin case in which a vurilict has been
given, for the purpose of ordering the judge to
enLcr up judgment upon the verdict. The af-
fidavit itself shows that judgment is sunpended
lor the purpose of considering' n motion which
has been made for a new trial. The verdict
was jpven at the last term ; and we understand
it is not unusual in the Stdte of New York for
a judge to hold a motion for a new trial under
advisement till tbe sucn-edirig term. There
ie, then, nothing evtraoNlJniiry in the fact that
Judge Conklin should take time till the next
term to decide on the motion for a new trial."
In the case now under consideration, no ap-
plication is made for a mandamus directing the
court generally to proceed to judgment. The
petitioners require a mandamus ordering the
judge to render a specific judgment in their fa-
vor. It ia not even shown that the case is in a
condition for a final judgment, nor is it shown
that the judge ia unwilling to render one. The
itrary may rather be inferred from his read-
ss to grant a rule on the defendant, requir-
ing him to show cause why judgment should
not be rendered. In a case of sui^h long stand-
ing, where it is more than possible the defend-
ant might not be in court; where judgment is
asked on a confession made by the agent of the
plaintiffs, professing to be the attorney of the
defendant, the judge may be excused for re-
quiring that notice should be given to the de-
fendant.
The rule is discharged.
Mr. Justice U'Lcan.
I conrur with the opinion which has been
delivered.
At flrst I was inclined to think that, under
the general prayer for relief, the court might
award a mandamus directing the district jud^
to enter a judgment In the case. Not that this
court, on a mandamus, should direct the Dis-
trict Court to enter a judgment in behalf of
either party; hut that, in Che due exercise of
its discretion, it should proceed to render a
judgment in the case, in order that such judg-
ment might be brought before this court for r«-
~-ion by writ of error.
'But as there is no spedfia prayer [*aOfl
for a mandamus, on the ground that the court
has refused to give a judgment, I am content,
as it involves a mere question of practice, to
agree with my brother judges, that a prayer for
this writ must point out specifically the ground
' the application.
Whatever efFect the insolvent law of Lou!-
ina may have to devest the jurisdiction of a
State cont, where th« property of ft defendant
14*
SOFBEMK COUBI Of TUJi UniTED &TAIEB, *
IIU
ti tmniferred to the syndic, aucb cannot be tlii
elTect OQ the jurisdiction of a court of thi
United States, No State law, or proceedings
under a State law can devest a court of thr
United States of jurisdiction. And in this
case, I can entertain no doubt that tlio Dis-
trict Court, liaving juris dit^ti on, may procce<l
to a final judgment. Whcthei' lui execution.
tsBued upon such judgment, uiaj be levied up
on the property in the liauds of the syndic, pre-
■ents a question which dependji upon very dif-
ferent pnnciplea.
On consideration of Ihe motion madu in this
ease for a mandnmus to be addressed to the
Honorable .Samuel H. Harper, District Judge
of the United States for the Eastern Uifctrict of
Louisiana, and of the Hrgumcnts of counsel
tliereupon tmd, as well in opposition to, as in
•upport of the motion, it is no'-v Iicrc ordered
and adjudged by this court that the roandunus
prayed fur be. and the same is hereby refused,
and that the snid motion be, and the same is
hereby overruled.
JAMES F. HULL.
Evidence — copy of bill of sale on record as evi-
dence— Circuit Court to take judicial notice
of Slate laws — what valid ratification of un-
authorized acts of agent.
Mrs. Van Fradelles being Id New Orleang, and
about to sail (or Baltlmure, made bee last nlll and
teatament. and appointed her slaters realdlng In
Baltimore, eiecntrries of ber will. At tbe time
of her dccesse, she had real aod perBOnsI
IncludlDB som; sloir-- — «-•■ ■ "-' - ■
ulled fro
I. and sbe lelt
rom New Or-
I. SDd was nevi^r henrd ol atCer she leCt tbat
Ing her dead, proced llie will In Baltlmocej sad In
ISia gave a power o( atloroej to John K. West, of
New Orleans, to receive all the mooejrs due the es-
tate of their teatatrli, and particularly to cause
iccedloga to t» InatltuCed as might he
•- — — \ sale of the estate, and To give
e, and gcneraily to prrform all
i. JudlcfBllT and eitrajudlclslly,
blfongln|'to"the"eBta"tF of Mr.
1817. lor tl.SOO, br a bill of aate executed twfore a
DOlarT 1 and all the purchase money, except |450
paid to one ol the cbDdren □( the testatrix, was
GId to him; and he aoon alter failed, without
vlng paid over any part of the proceeds of the
sale to the exccuCrlies. Thia sale was communl-
jcated to Mr. Wlaibester. the attorney of the ex-
- and by him lo them. la ISZS a lult was
brought Is tbe Parish Court ol Hew Orleans b* tta
cblldren and helra of Urs. Van Pradellea atalnat
Hull, according to the lawi o( Louisiana, for the
delivery and possesalon of the slaves so sold; la
which suit, carried afterwards to the Supiems
Court of the Stale, the alavca were decreed fo the
plaintiffs, upon :i.< grouud that the aaie was ab-
solutely Tuld under tlit laws of Loutnlaaa ; as ei-
ecutrlxca can oaly sell aftrr an order of court, and
by auction ; and lu this case the requisites ol tha
I — — . (^iniyiiea with. Hull brought this
"ult Court aralnst the executrixes,
""""" "■"" purchase tnoney paid tor
suit, and
*"E Jory
suit la t
to recove
lbs B
ending
a the Loulslao:
The <]efendr.3t_ ^___ __ ._. „ ...
Li;uce of Iba record la ibc cnse oil The Heirs of the
eslatrix v. Hull, aa not evidence In the present
alt. except as to tbs Judgment ; that Is, the plead-
ngs and proceedlaca on which the ludgraent waa
ounded, aud to whirb as matter of record It Dseea-
arlly refera
Br THi CoUBT ; This objection waa well tr"""
" '• res Inter alios acta ; and the pro
gmeot thereon, were no farther
show a recovery agalast Hull b
by the pi sin I
slsna, copies of such notarial acts arc evidence,
the •original alwnyt remaining, by tbs law ■•808
of Loulakua, In the office of the noUry. Held, tbat
the Circuit Court was bound to take judicial nollca
of the laws of Ijiuislann, and tbat the copy beinc
evidence by thonc laws, wse evidence lu this case.
The circuit courts of the United States are cra-
ated by Congress not for the purpose of admlnls-
dlclal power c _.
by the Constitution extends to mnuy ckbvb arising
uoder the laws of tbe dUTerent States; and tbis
TBilPd upon. In tha sierclse of Its appel-
0 fuit
_, _, modes o( proof by
which the laws of a foreign country are fo be es-
"-bllsbed, but It Is to be fudlclslly taken notice of
the same, aa the taws of the UDltad States are
ksn notice of In those courts.
A copy of the letters testamentary granted by
the Pariah Court of New Orleans, was proved by
the oath of tha clerk and register of the Conn ol
Probates to be a true copy of the oiiglual, and
that he could not, send the original, whicb Is on
. _. be
of tbe case admits of.
■ of J. K. Wett. the at-
-"- - Kted by
rney In fact, were
torney In fact of the
legal evidence In the Circuit Cou
In order to recover agalast
tbiB point, the plalatlT should b
— '- — -he slaves made to •—
ty with the laws ot
. . _ iequently to sucb a
slaves from him. Every anthorlty give- .. .._
attorney to transact business for bis prlD-
ist. In the absence of any counter pnwf,
'ued to be to transsct It according to tbe
he place where It is to be done. A sale ol
sale of the slaves made to him by West was la
conformity with the laws ot the Sute of Louisiana,
■■ ■■ ' 'ery of the
If tba ratlflcstloD by the principal b« without a
(nil knowledge of all the tacts and clreumstaneea.
It will not be obligatory upon him. whetlier this
■rant of knowledge arise fjom the designed, or the
ondeaigned concealment, or misrepresentation of
le agent, or from his
uOMland T, Merchants ids. •..d, n rici. ^v^. ivt -,
Ra T. CnnntugbeB, 8 Pet. S9. 81 ; Hontall t.
antlani7, U Barn. A C. IM i Thomdlka t. Ood-
Agcncy, sec. 213
or. S Pet. 414.
frey. S Qreenl. 42S ; Btary o
Agent will be discharged trotn say liability to
ki. — 1 — 1 — 1 > — ••■■vlatlon from orders, or any
be ratt
other mtaconduct o
omlHSlons by the principal,
— .iwledge ot ail tbe fticts and
1. Smith V. CoTogan. 2 T
. Hacker, 1 Calnes B
ker, 1 Calnes R. SZS: 1 Llverm. on Agency.
I. 328, 829, 391, 892, 394 (edit, IBISI :
dfka r.
Pnl«ra ».
Bleecier, 12 Jobns, 306: Pali,
agency, by l.ioyd. 81, 114, 111. 3S»: Tbomdf
Oodtrey, • OrMnL 420.
OwtRoa T. Huu.
tau la the nuiDeci' tcqnlred br the lawi of tb>t
Sum to gin It vatldltr : and the pmcliaser, cfiuull;
with the Kller, la bound under these cIrcumBtancei
to tnow wtiat the lawa &ce, aod to be iiaTertiGd
thenbr. Tbe law will neier pcesume that partita
littnd to TloJate Its preccpta.
Thli is Qot the case of a general uencr created
tf persons acting In autre droit. The purchaaer
wu tbereCorv bound lo aee vrbelher the aarnt ac-
t(d nlthln the acDiie of bis powers; and. at all
treatt. he waa botmd to know that the agent coald
Mt lo Tlrtne of any general power, do anj act
wUch wai not In conrorraltr wJtb the laws o(
Lgolilani. Tbe principals could never be pre-
ioiDed to aalhoilie blm to rlolate those laws, and
tiM purchaser, purchasing a title loTBlid by those
Ian. must have pnrctaaaed It with full knowledge.
A rttnicalion of the uaautborlied acts of an at-
totaer in tact, wliliout a full knowledge of all tbe
facts cacnecCed with those acts. Is not binding OD
the principals. No doctrine Is better settleiT od
eirlpal and authority than this— (hat the ratl-
tlon of the act of an ageot prevlouiily unaU'
Choiiici], must. In order to bind the principal, be
■lib a full knowledge of all the mnteiial tacts.
If ibe mati-rlal tacts be either suppiE'iised or iin-
kaown, the ratlllcBtlon li intalld, because founded
ao miitcke or fraud.
United SUtee for tlie District of
Un TV land.
The ract.i of the case, na stated in the opinion
of court, wtte:
"The ori^inaJ suit is an action of BBSumpsit
brought by the defemlant in error against the
plaintiffa in error (tht originaJ defendants) ; the
declaration containing the money counts, an
insilnul compntassent and a epedal cotint, eu
lor a deceit in the title upoa a sale of certain
tlaves.
Tpon the trial under the general iHue, the
(acta appeared a« follows: Mrs. Van Fradelles,
a lister of the plaintiffs in error, being at New
OrieaoB, in Julj, 1S13, made her will, describ-
ing herself to be of Baltimore Count7, in the
State of Slarfland, and thereby bequeathed all
htr estate, equally, among her children named
b the will, and appointed the plaintiffs in error
uecntriiea of her will. She immediately after
niled from New Orleans, Ixiund, aa is sup-
Poaed, for Baltimore, and has never since been
beard of. In May, ISIS, the plaintiffs proved
the will in the Orphan's Court of Baltimore
Connty, and took adminietration of the estate.
The property of Mrs. Van Pradelles, at New
Orleans, consisted of real and personal estate,
and among other things, of eome slaves i and in
January, ISIG, the executrixes gave a power
e( attorney to John K. West, of New Orleans,
to receive and give receipts, etc., for all the
goods, etc., belonging to the estate, to receive
■11 sama of money, etc., and particularly 'to
cause such proceedings to be instituted, as may
be necf ?sary to effect a sale of the whole real and
penuinat estate of which William C. D. Van Pra-
delles, the testatrix, was seised or possessed at
the time of her death, and to execute, etc., a
good and aulCcient deed, etc., in the name of the
execntrixes, for the purpose of transferring all
tbe right and title of the heirs of the testatrix
therein or thereto, lo the purchaser of the said
estate; and generally to do, negotiate and per-
form all other acts, matters and things in tbe
premise!, that circumstances may require, aa
vdl judicially, as extrajudicially, for the effect-
nal settlenient of the estate, etc.* West, in
January, 1B17, obtained from the Court at
FrotiRtea of tbe Pariah of Hew Orlwitt, let-
ters teatamentary, kutliorldng him to collect
the gooda and effects of the testatrix, and to>
moke a just inventory thereof, aitd to do all
other lawful acts aa attorney in fact of the-
'executrixes. In February, 1817, West [*V10
sold the slaves in question, belon^ng to the es-
tate, to Hldl, the defendant in error, for 1300
dollars, by a bill of sale, duly executed bufore a
notary in New Orleans; 1^50 dollars, part of
the consideration money, was duly paid to West,
who afterwarda failed in IBID; but it did nob
appear in the evidence that any part of the
money had ever come to the handa of the exec-
utrixes; 460 dollars was, afttr tbe failure of
West, received by Mra. Donaldson, one of tb»
children and devisees of Mrs. Van Pradelles.
The sale was communicated to Mr. Wincbester,
the attorney of the executrixes, and by him to>
the latter; and the correspondence betweeu
Winchester and West is found in the record. Iw
1826, a suit was brought in the Pariah Court of
New Orleans by the heirs of the testa trix,
against Hull, according to the laws of Louisi-
ana, for the delivery and poaspsaion of th»
slaves so sold, and their offspring i upon whiclt
such proceedings were had that a recovery waS'
decreed to the plaintiffs in that suit by the
Supreme Court of the State, upon the ground
that the sale of the slaves was absolutely void;
because, by tbe laws of Louihiana, executrixes
can only sell after an order of court and by
public auction, and not by private sale; and
that here there was no order of court, do sale
at aui^tion, but a sale by private contract."
The plaintiff, to support the issue on his part,
offered in evidence the record of the proceed-
ings in the Parish C^urt of tbe City of New
Orleans, in the case in which the children and
heirs of Mrs. Van Pradelles were petitioners,
against James F. Hull, for the recovery of the
slaves sold to him by John K. West, which
proceedings were certified according to the
provisions of the act of Congress. This record
contained a duly certified notorial copy of the
act of sale of the slaves, dated 27tb of August,
1817, by John K, West, attorney in fact of the
executrixes of Mrs. Van Pradelles, to James
F. Hull. The original, of which this was a
copy, waa the notarial register of the sale
recorded by the notary, and in his possession
according to the laws of Louisiana.
It also contained certain depositions, taken
and used as evidence in the cause, and docu-
mentary proof, such as the letters of J. K.
West to J. F. Hull; J. F. Hull to J. K West;
letters from G. Winchester, the counsel of tho
executrixes 'of Mrs. Van Pradellps, ["611
and afterwards their attorney in fact, to J. K-
West, on the subject of the estate of the
testatrix; powers of attorney from the execu-
trixes to J. K. West and Mr. Winchester; a
copy of the petition of J. K. West to the Court
of Probates of New Orleans for letters of ex-
ecutorship, and the order of the court thereon,
and the letters testamentary granted on the
said petition; the accounts of J. K. West with
the executrixes; the correspondence of Mr. Win-
chester with Morgan, Dorsey & Co. on the
affairs of Wpst after his failure; and the pro-
ceedings of the Supreme Court of Louisiana,
on the appeal of J. F. Bull from the Parish
Courb
t*1
ail
Bonsui Coon or tbk Uniru Statbb.
Th« plaintiff Id the Circuit Conrt also gave
In evidence a commiBaion isBued to New Or-
I«ani and executed there, containing the ex-
wnination of .Martin Blache, reglater of wills
in and for the Pariah of New Orleans, and ex
dlTicio clerk of tbe Court of Probates, with a
«opy of the original power of Attorney to pJolm
K. West from the executrixes, deposited in the
Court of Probates 1 under which power of at-
torney John K. West had acted in the prem-
ises. The defendants objected to their sjlmia-
aibility, and presented the following objections,
which were overruled by the court:
1. Tliat the record in the case of Donaldson
V. Hull, in the Pariah Court of New Orleans,
U not evidence in this cause against the defend-
ants, except as to the judgment of the court in
2. That copy of the original bill of sale on
record in the notary's oftico is not evidence, un-
less the plaintiff accounts for the nonproduc-
tion of the original.
3. That to make the act of sale evidence, it
must appear, by the laws of Louisiana, prop-
erly and leKallj proven, that the original act of
eale, of which it purports to be a copy, is in the
custody of a public depository, and cannot be
adduced in evidence.
4. The depositions and documentary proof
contained in the record, in the cause of Donald-
ton V. Hull, are not evidence against the de-
fendants in this cause.
6. That the papors referred to fn the testi-
mony of JIartin Blache, purporting to be let-
ters testamentary granted by the Court of Pro-
bates to John K. West, are not legal evidence
in this case against the defendants.
• 13»] 'fl. The evidence of Mr. Winchester,
with regard to the letters, and the accouut
of Mr, West, transmitted by him, are not ad-
missible in evidence
And the defendants, by their counsel, offered
the following prayers:
1. The defendants, by their counsel, prayed
the court to direct the jury that there is no
evidence in the cause to show that John K.
West had any authority from the defendants
in this cause to effect a sate of any property be-
longing to the estate of their testatrix in Louisi-
ana, except in conformity with the laws of said
kate; and that nnless the plaintiff shows a sale
to the plaintiff Hull, by West, in conformity
with those laws, and a subsequent recovery
from Hull, he Is not entitled to recover.
2, The defendants, by their counsel, prayed
the court to direct the jury that unless they be-
lieve that John K. West strictly complied with
the special instructions given nim by the de-
fendants in the power of attorney of January
3Dth, ISlfl, and caused such legal proceedings
to be instituted oa were necessary to effect a
sale of the personal estate of which their tes-
tatrix died possessed in Louisiana, and, under
iuch legal proceedinga, mode sole of certain
•laves, being part of the said personal estate,
to J. F. Hull, the plaintiff in this cause, and
the said slaves were subsequently recovered
from the said Hull, that the plaintiff is not
entitled to recover.
Thereupon, the plaintiff's counsel, on their
part, contended and Insisted that the commia-
ion and the return first herein referred to are la-
the staves from the plaintiff by due eoutsa
of law, for a defect of title in the defenOaota,
and John K. West, their agent and attorney,
and of the plaintiff, who claimed under the
said defendants and their said agent as afore-
And also moved the following prayera to the
1, The acts of John K. West, relative to the
sole of certain slaves to the plaintiff in this
case, in Louisiana, which were made known lo
the defendants, and were assented to, and ac-
quiesced in by them, are binding upon the de-
fendants, as West's principals, whether those
acts did or did not conform to a letter of attor-
ney prsviously given by the defendants to
West.
2. The accounts furnished by John K. West
to the defendants, *and retained by [*613
them, and no item objected to therein, except
the charge of five per cent, conimii^sions, are
proper and legal evidi'nce of the nature and par-
ticulars of the tronsacliona twtwecn Wist and
the dcfendnntfi, so far as these trananclions are
therein detailed, except as to the charge for
3. The letters of George Winchester, written
by the direction and with the approbation of
the defendants, to West, end to Morgan, Dor-
sey & Co., and by them respective!] received,
and the instructions given to Wincliester by
ttie defendants, and by liim communicated to
West, are proper and legal evidence in this
And thereupon the Circuit Court gave the
following opinion:
"The action in this case was brought to re-
cover a sum of money paid by the plaintiff for
certain slaves purchased by him of John K.
West, attorney of the defendants, as CKMutora
of Mrs. Van Pradellea, a sister. This sale wu
declared void by the Supreme Court of the
State of Louisiana, where the sale was made,
for reasons stated in the opinion of the court —
that the sale was made without an order of
court, and was not made at public auction.
"The counsel for the defendants contend
that, as the sale was not made according to the
laws of Louisiana, and was adjudged to be
void by the court of that State, (he proceedings
of the attorney were void for that reason; and
that West, being a special agent, did not pur-
sue the instruction of his constituents, but
acted contrary to them.
"The counsel of the plaintiff insists th*t
the instructions of the defendants to their at-
torney were pursued; and that, whether they
were special or general, they were ratiHed by
the defendants, and therefore binding on them;
and that the plaintiff in this suit is entitled to
recover the money paid by him for the slavBa
thus sold.
"Whether an agent has a general, or only •
special authority, is properly matter of evidence
for the consideration of a jury. If an agent
exceeds his authority, or if he acta without au-
thority, if the employer subsequently acquies-
ces in, or approves his conduct, he is bound by
it; and a small matter will be evidence of such
assent. And if, with a knowledge of all the
circumstances, an employer adopts th« acta of
his agent, 'for a moment, he is bound [*ai4
b; them. But the great principle in this cause
Peier» n.
USB
Owuai T. H0U.
eu
ia tUa: thftt wbere ana of tiro liuioe«Dt perMHU
moat aufTer by the fraud or act of a third, he
vbo enabl^ that person, bj giving him credit,
to commit the fraud, or to do the act, ought to
be the sufferer. In thia case, it doea not appear
bf the evidence given, that West, the attomey,
bad or had not taken lettera of admin iatration
on the eatate of Mrs. Van Pradellea. Tbs fact
ia not noticed in the opinion of the court. The
Omrt of Louisiana declare the aale vend, be-
cause made without an order of the court, and
not at public auction. We know that, in Mary-
land, after lettera are granted, the executor, or
adminialrator, in many casra, cannot aell alavea
without an order of court. Thia court will
■ot presume that lettera of administration were
pvnted to the attorney; much leas will they
preaume that they were not granted. The
course of proceeding in the courts of Louisi-
aaa, ia according to the principles of the civil
hw. In our State it ia difl'erent. With these
indications of the opinion of the court, the jury
are iNntnirted that if they believe, from the
evidence, that the acts of John K. West, the
attorney of the defendnnts, were made known
to thera, and were assented to and acquiesced
Im, they are binding upon them, whether the
acta did, or did not confortn strictly to I'
letter of attompy previously given by them
West. This opinion of the court is deemed a
sufficient answer to all the pray era made by
counsel for plaintiCT and defendanta."
To this opinion of the court on the eaid
prayers, and the refusal of the court to sustain
the objections so made by the defendants' coun-
sal, exceptions were taken.
The defendants, by their counsel, objected to
tbe admiBiibility in evidence of the record from
the Parish Court in and for the Parish and City
of Kew Orleans in the State of Ixjuiaisna, an-
nexed to the conimiasion, for any purpose, on
the ground of its not being authenticated ac-
eording to law; but the court overruled this
abjection. The defendants' counsel excepted-
And the defendants further prayed the direc-
tion of the court to the jury that if they should
be of opinion, from the evidence, that the de-
(•ndants did ratify the said sale of said negroes,
• 19*] 'y^t if they should be of opinion that
Vtat did not, before such ratiflcation, apprise
fit defendants of the fact that letters of admin-
istration were never taken out by him in Loui-
nana, upon the estate of Mrs. Van Pradellea;
and of the fact that, by the lawa of Louisiana,
ths eieciitrixes, the defendanta, never could
have claimrd any property in the said negroes
so sold; and that the defendants, in ignorance
af the existence of these facts, did ratify said
sale; then, such ratification being made without
a full knowledge of all circumstances material
for tbem to know before they made such rati-
flcation, ia not binding upon tbem. The court
Mid:
This prayer not ariatng from the facta of
tk caae. the court refuse to grant it. But the
eonrt are of opinion that if the jury should be-
Bave from the evidence that the proceedinga of
tkrir attomey were ratified by them, it is not
^t«risl whether they knew or did not know
that Weat had not taken out tetters of admin-
fatration an the estate of the testatrii."
Tv wUefc opinion, and to tlie raftiwl of the
»X>. ad. '
court t« gnuit tli prayer, tlte defendants, by
their counsel, excepted.
The defendants prosecuted this writ of error.
Tbe case was argued by Mr. JohnsoB for Uie
plaintiffs in error, and by Mr. WUllama for the
defendant.
Mr. Johnson oontended that the Circuit Court
1. In overruling the objections made by the
defendants below to the written evidence of-
fered by the plaintiff.
2. In refusing the instruetiona aaked by the
defendant*' counsel.
3. In giving the inatructiona which were giT-
en to the jury.
After a particular reference to the matter*
contained in the record of the proceedings of
the Court of I^ouisiana, Mr. Johnson inaisted
that the contents thereof could not be evidence
in this case. The defendants below were not
parties to itj they had no notice from the
plaintiff that the proceeding was instituted,
and that they would be affected by the result.
If they knew of the suit, it was not by such a
knowJed)re of it that they became parties to it,
or could be bound by it. Nor does it appear
(hat a notice of the suit, and of claima upon
the attorney of the defendant in the suit by
'Mr. Hull, was given to him with a view ['016
to the ultimate responaibility of his constitu-
ents. Although such a notice would not have
had any legal effect, yet its absence makes the
claim to introduce the record in the Circuit
Court still leaa entitled to consideration, and en-
tirely denuded. West was the special agent of
the plaintiffs in error; his powers were created
and their purposes declared in the letter of at-
torney which was sent to him. That power
waa flled in the office of the eierk of the Pro-
bate Court of New Orleans, and could and
iRlit to have been seen by Mr. Hull. As it
gave no authority from the executrixes to pro-
ceed, but under and in conformity with the
laws of Louisiana, in reference to the estate of
the testatrix, ao it gave no power to him to ap-
pear for them in actiona for a neglect or breach
of thoae lawa by him, or to bind them by a
miaexecution of the power, or to answer the
consequences of such abuse of it.
The acts of West were, then, so far as they
could affect the plaintiffs, as those of an entire
stranger to them; and the record of the pro-
ceedings which waa admitted in the Circuit
Court had no other principle of law to sustain
its admission than would support a claim to
the introduction, aa evidence, of tbe record of
the proceedings in a suit between any other
parties, and in any other court or country.
As a judgment of the Parish Court, and of
the Supreme Court, by which Mr. Hull was de-
prived of the slaves he obtained from West,
the record might have been admitted in evi-
dence, but nothing mora. Not a portion of
the other parts of it were legally in the ease.
The testimony taken in one trial between par-
tiea is not evidence in a succeeding trial be-
'^een the same parties, much less is it evidence
twecn other parties. It ia res inter alios acta.
The authentication of the act of sale, accom-
panied with tbe testimony of the clerk of the
Court of Probatea, was not aafficient. The
original should have bees producedj or it should
' J4I
au
SunuEui CoutT or the Unmm STAvafl.
have been proved that it could not be pro-
duced, and muBt remain with the notary, upon
aome nilr or prindple proved to the court.
Sot could it be evidence if the orieinal had
been ofl'ered. Tt was an act done hj WesL out
of, and unauthorized by the power of attorney
which he held. It waa not an act within the
wope of his autliority, but was a plain violation
of It.
• II*] *Nor can the Introduction of thia evi-
dence be Buatained on the ground that the acta
of Went were adopted by (he plaintiffs In error.
Refore thia could be, it aiiould have been ahown,
and it was not shown, that they had full know],
edge of all those acta, and of every circum-
atance connected with them. If it had been
proved that tlie plaintiff in error knew that in
the execution of the power under which West
acted, he had violated instead of conforming
to the laws of Louisiana; that the act of sale
was not auch aa waa permitted by those laws,
and that in reference to alavea ao situated, a
■ale could only Im made by auction; and with
tbia, and a full knowledge of eif.y other fact,
tbey had ratified and adopted all that had been
done, the case might have atood differently.
The ruling of the court that the defendants in
tile Circuit Court were bound by the acts of
Weat, was contrary to established principles of
law. They did not know them; they received
no part of the money produced b^ them; they
were done without authority. Dted, 6 Johns.
58, 69; Cm. J. 466; 1 Petera, 264; 3 Petera,
69, Bl; 7 Wheat. 290; Paley on Agency, 104,
109; 2 Kent's Commentaries, 278.
Ur. Williama, for the defendant.
Had Weat authority to sell the slaves, part
of thn estate of Mrs. Van Pi-adelles! This
authority ia shown by the letter of attorney^
by the correspondence of Mr. Wincheater — by
hia accounts furnlahed to the executrixes, hia
constituents; all of which testimony is inde-
pendent of the record of the proceeding in the
courts in New Orleans. That he sold the slaves
ia also proved by evidence out of that record —
by his cnrrespondence ; by the act before the
notary; by hia accounts; and by the correspond-
ence of Mr. Winchester with Morgan, Dorsey A
Company.
Has there been a recovery of the slaves from
Mr. Hull by parties having a title superior to
the vendoi-sl This ia eatabliabed by the record
from New Orleans.
The Pariah Court appesra to pnt the right of
recovery upon the ground that, aa Mrs. Van
Fradelles waa presumed to be alive, and her
children were entitled to be In provisional poa-
aession of ber property, the slaves could not be
rightfully sold.
The Supreme Court, while they seem to im-
• IS*] ply that no valid 'sale could be made
of the property, appear to place the right to re-
cover it on the ground "that the aale was made
without an order of court, and not by public
auction."
This, however, ia manifest, that neither the
defendants nor their agent did convey a valid
title to the property to Mr. Hull; either be.
cause a good one could not be made by them;
or, because the agent did not accompany his
aale w4th the proper formalitiea. Bo that the
rarfers, or their agent, havo receivad the
Si*
vendee's money without • valuable eoniidel»>
tion In exchange.
A vendor is always held in sales of peraoBMl
property impliedly to warrant the title. S
Kent's Comm. 47H, and the authorities tbera
cited; Flotte v. Aubert, 2 Orleans T. Rep. 329;
2 Bl. Com. 451; 3 lb. 1Q6. Here the act of mIo
before the notary public contains an ezpresa
warranty of title.
To the objections urged by the defendants ta
the evidence offered by the plaintiff, it ia an-
1. The record from New Orleans is only re-
lied on to establish a recovery of the alavea
from the vendee, for defect of title in him, and
consequently in those from whom he purchased.
2. The original act of sate is shown to be k
part of the records of a public officer— a sworn
copy is, therefore, the liest evidence which can
be afforded or required. 7 Peters, 86. X.
court will take notice, officially, that no-
taries public in Louiaiana, not a foreign coun-
try, are public officera without farther evidence.
2 Waah. C. C. Rep. 449. 4. The depositions
and documentary proofs included in the record
not insisted on as evidence for the plaintiff,
are they requisite for him in order to maiu-
i this action. 5. The letters testamentary,
authority granted to West, are proved by
che's teatimouj'. This proof, however, u
essential for the plaintiff's case, as his au-
thority is otherwise euftlciently established. 6.
Mr. Winchester's letters are moat clearly com-
petent and legal evidence. He proves hia ap-
pointment as agent and attorney of the defend*
ants, and bis authority to write the letters re-
ferred to. Of course his acknowledgment of
the receipt of Wesfa accounts affects them with
hia knowledge and acts.
As to the tirst exception of the defendant is
the Circuit Court.
1. To the assumption on the part of the de-
fendants that 'there is no evidence to [*6I9
show that West had any authority to make
Bales of the property of their testatrix, except
In conformity with the laws of liouislans. are
opposed the instructiana of their counsel, Mr.
Wincheater, in hia Iptter to West of the 13th of
iiovember, 1818, vtherein, after giving speciOe
directions to sell the several descriptlona of
property, and CBpecially that the negroes were
to be sold on a credit of three and six months,
he adds: "But it Is the wish of the Miase*
Owlnga that you should consider yourself st
liberty to exercise your own discretion as you
may think best, under existing circumstances;
and, whenever you may think it most conduclT*
to the intereatJi of those concerned, to deviate
from the above instructions."
And in Mr. Winchester's letter to West of
the 14th of July, 1817, wherein he acknowU
edges the receipt of the copies of the correspond-
ence between West and Hull, relative to
the sale of the slavea in queation, he adda, "the
executrixes are satialled with all jou have dona
towards a settlement of the estate; and relying
confidently on your friendly eiertiona in their
behalf, have only to add, generally, that what-
under existing circumstances, may seem
beat in your judgment to be done with the es-
tate, either real or personal, or with any part
of it, they will approve and isnction." In tness
lettera, it will be perceived, there ia no refer-
Oinnoi V. nmi-
n»
caea t« tba lain of Louisiana, aa furniahlite
(uidea U> ref[u1ate the salea by Went.
2. It is manifest b^ tbe act of Hale that West
■uppoaed himself to be acting within the terms
tt, and according to his insCruotiona, as con-
tained in the letter of attorney to him of the
KKh of Juiuary, 1816. And it is no fault on
th« part of the plaintiff, if West did not con-
form himself to hi* instructions. He was tha
■gent of the defendants, and not of the plain-
t&. But whether he did or did not so conform
himself, in the sale of the staves, everything
which be did do in regard to that sale vas
known and acquiesced in, and ratified by tha
defendants. Such knowledge and ratifiration
are proved by itlr. Winchester's letters and tes-
timony.
As to the second exception.
Neither in the court below, nor in the points
AM by the plBintilTs in error, ia the defect in
tke authentication of thu record poinlcd out.
It will be observed that it does not purport to
b* a record of the Supreme Court, but of the
flC*] Parish Court 'for tlie Pariiih and city
of New Orleans. And all the legal formalities
required by the Act of the 2ath of May, ITOO,
appear to be complied with.
Morearer, the transcript of the record ofTered
im avidencB by the plaintilT is a part of the tea-
timony taken under the first commission ; and
it ia proved by the witnesses, examined under
that commission, to be a true copy of those la-
gal proceedings. 2 Cranch, 23S.
The third exception of the defendants below.
There are no facts in the case whereon to
fonud thia exception.
1. It would seem that the proper authority
WM taken out by West to enable him to act as
the attorney of the defendants- 2. The want
of title In the defendants in the property, which
Ihty autbori»;d and directed West to sell, was
a matter of law, which thsy were bound to
know, and not a question of fact. t. It does
Mt appear, from the evidence, that the defend-
ant* were ignorant of any circumstance! ma-
teria] for them to know, in this transaction. 4.
If the attorney and agent for the defendants
had been guilty of any fraud or neglect towards
Ibem, tet in which the plaintifi had no partici-
pation, they must suffer the consequences, and
not an innocent third party. C. The ignorance
of a vendor that his title to personal property
•old by hin is detective, affords no defense
■gainst the vendee's action upon an implied,
or upon ezpre's warranty of title. 6. The con-
sequences arc the aamii to a vendee, whether
the vendor knpw, or did not know of his defect
of title The former has parted with his money
without an^ «qnivalent, and the vendor's igno-
lance In this re&pect cannot entitle him to re-
tain money wiinoul conatderation.
On the P^int" submitted by the plaintiffs In
error, Mr. Williams argued;
That the record from New Orleans waa legal
end competent evidence to prove the recovery
of tbo slaves by a pnramount title. The record
ia relied on for this purpose only; and, if such
judicial recovery is not the only legal evidence
to eatablisfa aucb a fact, it is clearly the most
froper and conclusive evidence.
To the demand for a restoration of the
■!•▼(•, the purchaser drivei the party claiming
tc a Nit, and the dateudants have notiea of its
■ U ad.
'pendency; their agent and attorney at [*tll
New Orleans is a witness in the cause; it is de-
cided against the purchaser; he prosecutes an
appeal to the Supreme Court, and the restora-
tion is only submitted to under the mamiate of
tribunals whose commands were irrrsistible.
Authorities can scarcely be required to justify
such conduct, and to maintain the right to re-
cover under such circunintances.
Cited, Fcnwick v. Forest, S Plsr. t J. 4M,
416; 6 11. & J. 41.'), 416; Dimond v, Dillingslea,
2 If. & G. 204; CInrk v. Camiiston, 7 Cranch,
308, 322; 1 J. R. 517; 13 J. R. 21i.
Notice to the ngent is noLice to the principal
(2 Saund. P. and K. 736).
On the prayers of the plaintiff below, in the
defendants' first e.iccptiou, it was contrnded;
1. The acts of West, known anit absented by
hia principals, are binding upon them whether
those acts did or did not conform to the previ-
ous letter of attorney. Cited, 1 Esp, K. P.
a 112, and authorities; 4 E>>p. N. P. C. 114;
1 Saund. P. and E. 1>3 [Admissions]; 2
Saund. P. & £. 734, 736, and iiulliorities;
Taley's Agency, 143, 24!l, 102, 163; Lonij on
Sales, 224; 2 D. & E. 180, n.; 4 Dini;. 722;
2 U. Bl. 618; Caines v. Bleccbcr, 18 J. R. 300;
13 J. R. 307; 13 Peterad. 7^, 724, authoritien,
744; S Cranch, 163, 15B; Peters's C a R. <M,
72,
Liabilities of agents to principals disi'hsrged
by acquiesLcnce in their acta. 1 J. C. 110; 2
J. C. 424; I Caines' Rep. fi26.
Principal liable for the misconduct of his
agent. 2 Liv. P, and A. 207, 214, 220, 227;
13 Petersd- 724, 727, 728, 729.
Masttir liable for contracts entered into by
the agent, altliough unautliorized by him, if
the connideration conies to the master's use. 2
P. and A. 196, 1D7, 1U8; Long on Salps,
221; 3 Esp. N. P. C. 214; Z Kent's Com. 031;
fi Barn. & Crea. 78.
2. The accounts furnished by West, and re-
lived and retained by the dt'fenilants, and not
objected to, are evidence against them. Cited,
Free;and v. Heron, 7 Cranch, 147, 151; 1 Esp.
N. P. C. 376. and note; Peters's a C. H. 21,
22.
3. The letters of Mr. Winelieater, written
ith the knowledge and by the direction of the
defendants, conlainin;; instructions, etc.. are
lets of the defi^nJiLnts, and proper and le-
(^ evidence against tlicni. Cited. 2 Slark.
Ev. 60, etc.; 12 Wheat. '469; 7 H. & (••2a
J, 108; Peters's C. C. R. 21, 22; 4 Taunt.
611.
His knowledge is their knowledge. 11 Wheat.
'; 13 Petersd. 728, etc.
The Circuit Court substantially adopt the
ewB of the plaintiff's counsel, and every part
their opinion is believed to be impregnable.
Mr. Johnson, in reply. Tlie ruling of the
CSreuit Court was that the record of the Psrish
Court waa evidence; and, therefore, the coun-
Hel for the plaintiff below used the whole con-
tents of the record before the jury. The court
refused to discriminate, and to decide on those
parts of the proceedings in the Court of Loid-
siana and the documents produced in that court,
which were or were not legal testimony. This
was the error then and now complained of.
Some of the matters in the record, and part of
the e«MTcapond«nce, are not proved; nor waa it
an
SupBEUB CoDkT or THE UittTED States.
I8SS
■bown thkt uij attempt had been made to
prove them.
It was the duty of the plainttO' below to have
proved the want of title, derived under the act
of sale, independent of the record. He ear
into the Circuit Court to maintain hie dai
•gainst the executrixea of Mrs. Van Pradelli
for monej had and received to his use; for
money paid under a consideration, which had
failed. He could only maintain luch a claim
by legal proof, shown to be auch by the rules
of evidence, and not made auch proof by the
judgment of a distant tribunal, in a suit to
which they were not parties.
Was the sate made by West binding on Ub
supposed principals! It was not within the
prescribed and declared principles on which he
was to act under the power of attorney. No
money was received by them. There was no
proof that any money was received by the let-
ter of West, and that letter was inadmissible
In evidence. In the form in which it was pre-
sented to the court. The whole sum paid by
Hr. Hull to West, and if any was legally proved
to have been paid, was by him retained. The
last installment, if paid to Mrs. Donaldson, waa
retained by herj and if th&t sum was to be re-
covered back, it should have been sought In an
action against ber. She was one of the parties
to the proceeding in the Parish Court to vacate
the sale of the slaves, as pretended to have been
made by West. She, with the co-heirs of Mrs.
023*] 'Van Pradelles, recovered the slaves
for which, in part, the money paid by Mr.
Hull waa received by her; and on every princi-
file, if anyone was liable, she was liable to re-
uiid it. And yet in the Circuit Court a judg-
ment was given for this amount, included in the
installments paid to, and retained by West,
against the plaintifis in error.
The defendant in error, as was submitted to
the court in the argument in chief, waa bound
to know the extent and nature of the powers of
West (1 Peters, 264, 290), and whether the act
of sale was in conformity to those power* and
to the laws of Louisiana.
Those laws are that e^iecutors cannot sell at
private sale, and must sell by auction, and the
judgment of the Parish Court was founded
soldy on the defect of the sale. It was, there-
fore, a loss sustained by his want of vigilance,
by his inattention to his own obligations to pro-
tect himself from such a proceeding, from a
loss not brought upon him by the acts of the
plaintiffs in error, or by acts authorized by
their agent; a loss they could not protect him
from, but from which he could have protected
himself. Suppose the letter of attorney to
West had, in express terms, directed the agent
to apply to the court for an order to sell the
■laves, and he had sold them without such an
order; it would not have been contended that
the constituents in the power were bound by
auch a sale. The power of attorney in this
case is the same in effect. It contemplates the
intended proceedings under It, to be in con-
formity with the laws of Louisiana. The acts
of an agent beyond his authority do not bind
his principal. 7 Johns. Rep. 301.
As to the position that the ratification of the
acts of West bound the plaintiffs, although
they were ignorant of their nature and invalid-
itT; this baa been already met by the argnmont
>•*
before offered to the court. Tlw plaintiffs in
error did not know the law of Louisiana, not
bad they an opportunity to know it.
The defendant in error claims that the act of
sale, which is proved by a notarial copy taken
from the notarial register, is evidence because
such is the Isw of Louisiana as to copies of that
kind. This may be the law there, but it is not
known to be the law by this court, and the
party availing himself of the law should prove
it to be sucb. The Circuit Court of the United
'States are not bound to know the laws ['694
of the several States; and if they are called on
fo administer them in a case where they apply,
the laws should be proved. This was not
Mr. Justice Story, after stating tbe facts,
delivered the opinion of the court:
The original suit was brought to recover
back the purchase money paid by the defend-
ant in error for the slaves, and other compensa-
tion for the defect of title (as mentioned in the
previous statement of the facts of the case.)
The jury found a verdict for the original plain-
tiff for t^,B3tM, upon which judgment was
rendered accordingly; and the present writ of
error is brought to revise that judgment upon
certain bills of exceptions taken at the trial, oa
behalf of the plaintiffs in error.
The objections taken to the admissibility of
M evidence were, iiwthe first place, that the
record in the case of The Heirs of the testatrix
T. Hull, in Louisiana, was not evidence against
the defendants in the present suit, except aa to
the judgment of the court in Louisiana. By
the judgment, we are to understand, not that
part of the record, which in a suit at the com-
mon law technically follows, the ideo consider-
atum est., etc.; for that would be wholly unin-
telligible, without reference to the preceding
pleadings and proceedings; but that which, in
non, as well aa legal language, is deemed
Bxempliflcation of a judgment; that ia to
say, all the pleadings and proceedings on which
the judgment is founded, and to which, &s
matter of record, it necessarily refers. We are
of opinion that this objection was well taken.
The suit was res inter alios acta, and the pro-
ceedings and judgment therein were no further
evidence than to show a recovery against Hull,
by a paramount title. Thera was error, there-
fore, in the Circuit Court, in refusing to aua-
tain this objection.
The next objection waa that the copy of th«
original bill of sale of the slaves to Hull, on
record in the notary's office, was not evidence,
unless the plaintiff accounts for the nonproduc-
tion of the orif^inal. The validity of this ob-
jection depends upon this consideration —
whether the nonproduetion of the original iraa
suffi(.iently accounted for. It was not account-
ed for by any proofs offered on behalf of the
plaintiff; and unless 'the Circuit Court ['aas
could judicially take notice of the laws of
Louisiana, there was nothing before the court
to enable it to say that the nonproductioo of
the original was accounted for.
We are of opinion that Che Circuit Court iw«a
bound to take judicial notice of the laws of
fjonlsiaiia. The circuit courts of the United
{States are created by Congress, not for the pur-
poM of administering the local law of a aiiijEle
Peter* v
isas
Stat* alooe, bnt to admlnliter tha lawa of all
tht Btatea in the Union, in caaei to which they
r««peetivel]r appijr. The judicial power con-
ferred on the general government b^ the Cou-
stitution, aitenda to many case* aniins under
the tawB of the different States. And thie court
H called npoQ, in the exercise of it* appellate
jDrisdiction, constantly to takes notice of and
administer the Jurisprudeoca of all the States.
That jurisprudence is, then, in no just senae, a
foreijjn juriuprudence, to be proved, in the
courts ot the United States, by the ordinary
model of proof by which the laws ot a toreiga
ojuncrr are to be established; but it is to be
judicially taki^n notice of in the aame manner
aa the laws of the United Statet are taten no-
tice of by these courts.
Under thcae ciruuinstances, we are at liberty
to examine tlie objeccion above stated, with
reference tn tlie known laws of Lou lei ana.
Sow, in Louieiana, aa, indeed, in all counti-ies
using the civit lo-w, noiarits are officers of high
impurtance and conKduiicc) and the contractH
anu otliifr acts of parties executed before them
and recorded by tUem, are ol high credit and
authenticity, tiume cuntraizLs and uonveyancue
are not valid except they arc executed in a prH-
■cribed ma.aner, before a notary ; othere, again,
if executed by the parties elsewhere, may be
recorded by a notary; aud a cupy of HUcb
reuird is in many caaes evidence. Where a
L-uucract or other act is executed in a paiticular
manner, before a notary, the protocol or origi-
ual remains in his possession apud acta; and
the act is deemed what is teclmicBlly csUed sn
"authentic act;" and a copy ol such act, cer-
itlied as a true copy by the notary, who is the
depository of the urigiiml, or his succeesor, is
iIceDied proof of what is contained m the origi-
nal, for the plain reason tliat tbe nrlgitml is
properly in the custody of a public ollicer, aud
oot deliverable to the parties. This will
abundantly appear, by a reference to the Civil
Code of Louisiana, from art. ^231 to art. 2250.
lie'] Now, tbe bill *of sale in tbe present
Fsse ia precisely in lliat predicament, it was
executed t>efore a notary iii the inenner pru-
Ktibed by the laws ot Louisiaua; the original
is in bis poBsessiou, and is an authentic act,
ipud acta: and, therefore, tbe party is not en-
titled to the poBsesniun of it; but only to a
copy of it. Eo that the absence of the original
is BUlliciently accounted fur; and tha copy lie-
ing duly proved, was properly admissible in
mdence. 1 here was no error, therefore, in the
Circuit Court, in admitting this evidence.
And this constitutes an answer to the next
objection, viz.; "that to make the act of sale
evidence, ft must appear, by tbe laws of Loui-
tiana, properly and legally proved, that tbe
original act of aalc, of which it purports to Ix
a copy, is in the custodv of a public depository,
and cannot be adduced in evidence." By the
laws of Louisiana, as already stated, tbe orig-
inal ia in the bands of such a depository; and,
therefore, the objection falls to the ground.
Ttie next objection is that the documents and
docniuenlary proofii contained In tbe record ot
the Louisiana suit, above mentioned, are not
evidence against the defendants. This has
been already disposed of under the first objec-
tion, and there waa error in the Circuit Court
In not eiutaining tbe objection,
til. ed.
Tha next objeetfam b that tba papan rafarred
to In the testimony of Martin Blaohe, pUT<
porting to be letters testamentary, granted bj
the Court of Probates of Louisiana to John K
West, ar« not legal evidence in the eauat
against the defendanta. We are of opinloa
I hat the objection ia unfounded, and waa
rightly overruled by the Circuit Court. Blacha
swears that be is the cleric and register of tlia
Court of Probates; that the copy is a true copy
ot the original; that he cannot send tha ong-
tnal, which ia on file in the Court of Probate*.
Under such cii'cumatances, tha copy Is th* beat
evidence which the nature of the case admit*
of.
The next objection is that tbe evldenea of
Mr. Winchester, with regard to the letter* and
the accounts of J. K. Weat, tmnsmitted by
bim, is not admissible evidcnca in the cauaa.
In our opinion tlie Circuit Cuurt was right in
overruling this objection. Mr. Winchester waa
the attorney in fact ot the defendants, aud con-
ducted, in their behalf, the correiipoitdenca with
J. K. West; and the letters which passed be-
tween them 'must be presumed to have [*6SI
been brought fully to the Ifuowledge of the de-
fendants, and were important to establish a
presumption of the ralilication of the act* ol
West by tbe defendant*, aftar the communica-
tion of them. How far they ought to avail for
Lhat purpose, was matter of fact for the con-
dideration of tbe jury. The only question with
which we have to do ia their competency for
Lhi* purpose.
The next and last objection under this head,
which properly siiould have preceded ait the
others, but was taken in a subsequent stage of
the trial, ia to the admissibility in evidence of
the record from tlie Parish Court of the City ot
New Orleans, already referred to, for any pur-
pose, on the ground of its not being authenti-
cated according to law. This objection was
overruled by the Circuit Court, and, in our
opinion, properly overruled. Tlie record is
authenticated in the precise manner required
by the Act of Congress ot the 26th May, 179U.
having tbe attestation of the clerk, and tbe seal
of the court annexed, together with a certifi-
cate of the sole judge of the court that tbe
attestation is in due form of law
We may now proceed to tbe consideration of
the instructions asked of the court in behalf of
tbe defendants, in the farther progress ot tbe
cause, and refused by tbe court. With those
asked by the plaintiff, in the actual posture of
tbe cause, upon the present writ ot error, we
have nothing to do.
The Bret instruction asked was that there waa
no evidence in the cause to show that John K.
West had any authority from the defendant*
in tbe cause, to effect a sale of any property
belonging to the estate ot their testatrix, In
Louisiana, except in conformity with tbe laws
of the said State; and that unless the plaintiff
shows a sale to the plaintiff (Hull) by West,
in conformity with the said laws, and a subse-
quent recovery from Hull, he is not entitled to
recover. We are of opinion that this instruo-
tion ought to have been given as prayed.
Every authority given to an agent or attor-
ney to transact business for his principal muat,
in the absence ot any counter proofs, be uon-
atruad to b*, to transact it according to tha
1B«
827
SUPKBllB COUBT OF 1
laws of th« place where It !■ to be done. A
eale of alavea, authorised by un executrix to be
made in Lauiaiana, must be presumed to be in-
tended to be made in the manaer reijuired by
the laws of tliot State to give it validity. And
•88*] the piirchaaer, equally with •the leller,
la bound under such cu'cumstancee to kaow
what theiB laws are, and to be governed there-
by. The law will never presume that parties
intend to violate its precepts; and, indeed, the
very terms of tlie letter of attorney under which
the present sale was made, clearly point out
that it was in contemplation of the parties that
judicial, as well as extrajudicial acta might be
required to be done. The attorney is to exe-
cute good and sufficient deeds, etc., for the
purpose of transferring all the right and title
of the beira of the testatrix in her real and per-
aonal estate, to the purchasers; and generally
to do, DOgotiate and perform all other acts,
matters and things in the premises, for the ef-
fectual settlement of the estate, etc. Now,
there could be no effectual settlement unless a
valid title to the slaves and other property sold,
was given, according to the laws of Louisiana;
and there is no evidence in the case to show
that the defendants ever contemplated any sale,
which should not be valid by those laws. The
Circuit Court, therefore, erred in not giving the
instruction.
The next instruction asked was for the court
to instruct the jury that, unless thejr believed
that John K. West strictly complied with the
bpecial instructions given him by the defend-
ants in the power of attorney of January, ISIG,
and caused such legal proceedings to be insti-
tuted as were necesbary to effect a sale of the
personal estate in Louisiana, of which their
testatrix died possessed, and under such legal
proceedings made a sale of the slaves, being
part of the personal estate, to the plaintiff
(Hull), and that the slaves were subsequently
recovered from the plaintiff, the plaintiff is not
entitled to recover. For the reasons already
given, this instruction ought also to have been
^ven. This ia not the case of a general agency,
but a special a^ncy, created by persons acting
in autre droit. The purchaser was therefore
lound to Bee whether the agent acted within
the scope of his powers; and, at all events, he
was bound to know that the agent could not,
In virtue of any general power, do any act
•vhich was not in conformity with the laws of
LAuisiana. The principles could never be pre-
lumed to authorize him to violate those laws;
and the purchaser purchaning a title invalid by
those laws, must have pui-chased it with his
eyes open.
The next instruction asked, was for the court
•2S*] to direct the 'jury thnt, if they should
be of opinion, from the evidence, that the de-
tendanta did ratify the said sale of the slaves;
yet if they should be of opinion that West did
not, before such ratification, apprise the defend-
ant of the fact that the letters of administra-
tion were never taken out by him in Louisiana
upon the estate of the testatrix, and of the fact
that by the laws of Louisiana, the executrixes,
the defendants, never could have claimed any
froperty in the slaves so sold, and that the de-
iodants, in icnorance of the existence of these
facts, did ratify the said sale; then such ratifi-
Mtion, beinc mad* without a fuU knowledge
S5«
t Uninv BtAXwm. IBM
of all eireumataiicee material for tbem to know
before they made such ratification, is not bind-
ing upon them. The court refused to give tUa
instruction, because the prayer did not arise
from the facts of the case. But the court did
direct the jury that if the jury should believe,
from the endence, that the proceedings of their
attorney were ratified by them, it was not d>»-
terial whether they did or did not know that
West had taken out letters of admlnistratioa oa
the estate of the testatrix.
It ii wholly unnecessary for na now to eon
sider whether the instruction as prayed ought
to have been given or nbt; for we are of opin-
ion that the instruction actually given cannot,
in point of law, be supported. No doctrine ia
better settled, both upon principle and author-
ity, than this— that the ratiQcation of an act of
an agent previously unauthorized, must, in
order to bind the principal, be with a full
knowledge of all the material facta. If the
material facts be either suppressed or unknown,
the ratification is treated as invalid, because
founded in mistake or fraud. Now, by the
laws of Louisiana (Civil Code, art. 1681, 1682),
testaments made in foreign countries, and other
States of the Union, cannot be carried into
effect on property in that State without being
registered in the court within the jurisdiction
of which the properly is situated, and the exe-
cution thereof is ordered by the judge; which
may be done, if it be eatabliahed that the testa-
ment has been duly proved before a competent
judge of the place where it was received. So
that there is no doubt that the due probate of
the will of the testatrix, before the proper Court
of Probate of Louisiana, was an indispensa-
ble preliminary to any sale of the property in
that b'tate. If West had not taken out letters
of 'adiitinistration on the estate of the [*A30
testatrix, in Louisiana, it ia clear that be could
have no authority to sell the slaves, or to bind
the executrixes.
For these reasons we are of opinion that tb*
judgment of the CHrcuit Court ought to be re-
versed, and the cause be remanded to the Clr-
cuit Court, with directions to award a venire
facias de novo.
This cause came in to be heard on the tran-
script of the record from the Circuit Court of
the United SUtes for the District of Sfaryland,
and was argued by counsel ; on consideration
whereof, it is the opinion of the court that there
was error in the said Circuit Court in refusing
to sustain the objections made by the original
defendants (now plaintiffs in error), contained
in their first specification in the record, via.,
"That the record in the case of Donaldson t.
Hull, in the Parish Court of New Orleans, ia
not evidence in this cause against the defend-
ants, except as to the Judgment of the court in
Louisiana. And also in their fourth specifi-
cation, vix., "That the depositions and docu-
mentary proof contained in the record, in the
cause of Donaldson v. Hull, are not evidence
against the defendanta in this cause." And
also that thsre was error in the said Circuit
Court in refusing to grant the first instruction
prayed by the defendanta, vis., "To direct the
jury that there is no evidence in the cause to
show that John K. West had any authority
from the defendanta in tbia cause to effect a
Peten 1.
1S»
LivuToaroR t. Stoit.
nh of anj property belonging to the estate of
(Mr testatrix in Louisimna, except in conform-
Kf with the 4aws of uid State; and that unlesa
tbc plaintiff ■hows « t«1e to 'the D'aiutiff Hull,
bj West, in conformity with said laws, and a
nibseqaeut ncovery from Hull, he is not enti-
tled to recover." And also in refusing the sec-
ond instruction prayed by tbe defendants, tie,,
"To direct the jnry tWat, unless th*y believe
that John K. West strictly complied with the
Epecial instructions gircn him by the defend-
■nts in the power of attorney of January 3Dth,
IBie, ind caused such legal proceedingH to be
instituteil at were neces.nnry to effect a sale of
toe personal estate of which their testatrix died
Csesscd in Louiaiana; and, under such
„i1 proceeding!, mode aale of certain slaves,
<S1*] being part of the said 'personal estate,
lo J- F. Hull, the plaintiff in this ennse; and
that the aaid slaves were subsequently rceov-
ered from the said Hull, that the plaintiff is
tot entitled to recover." And also in giving
the following Instruction to the Jury, vix,,
"That if the jury should believe from the evi-
fcnte that the proceedings of their attorney
were ratified by them, it is not material whether
they knew, or did not know, that West had not
taken out letters of administration on the estate
of the tealatrix." It is therefore considered
hy the court that for these errors the judgment
af the said Circuit Court be. and the same is
hereby reversed and annulled, and the cause is
remanded to the said Grcuit Court, with direc-
tions to award a venire facias de novo.
W>*] 'EDWAAD LIVINGSTON, Appellant,
BENJAMIN STORY.
haeUca of United States courts In Loi.isiana —
Chancery pleading— demurrer-
Lonlilana, A bill of complilTit was filed In the
DtBtrlcl Court of tbe nnlted Btates for tbe Esatern
Dlilrlet dI Lioulsisoa, to set ailde a coDveyaace
Bade br tbp camplalnant of certain Iota of Kroticd
Is tbe eltr of New OrlesQB. and to be rentored la
Ibt PDnieiulon of tbe same, slleB>nil that tbe deed
bj which lie eonvp^ed them was BlveD on a con-
tract for Itie loan of uioney, sod tbst iltliough In
the form of a sale. It was ufvco ddI.t as n piedES
ftn tbe rcpsruient of the money : and cBllinE for
Saecoant of ttte Mnti and praUti of tbe proper-
The (Icrendaat demurred la the bill, and ss-
Tied for t^nae tLnt tbe complainant. In tbe bill,
kad nnt uinde j>ueli a .ase an entllled blin. In a
(ourt of the Stale of Loalslana, 10 any dlaeoTerT
tanchlojt the mnttcfH contained in the bill, nor to
tnr miff In the DliilHct Court. The gronnd of
ttafi ileinurrar was tbat tbe District Court of the
Enlled States of IiOulslaoa had no power to ea1e>
lain proeeedlnca and give relief In chancery. Tbe
rrevlilons of the lam at the TInlted f^tatei es-
ribllihlDR the courts of the Dnited Blatei lo tbe
district of Loulilana, and reenlatlni tbe practice
Br the proTlslODS of the aeti of Confress. I<oais-
issB, when ihe come Into the Union, had organ-
krd thrrelD a District Canrt of the United Stsleii.
■avlBg the sanie Jurisdiction, except on to app?ali
U4 writs of error, as the circuit conrta of thf
Palled Btate* In other States : and the modes of
mcecdlnr ta that cODrt were required to be ac-
cMdlDE 1« Um principles, rules and itsaiM whleh
• lb 00.
belone to c ,_.„. _ .
from coarta of commoa taw. And wbether ttiers
were or not In the BSreral SUtes, courts of equity
ptocpedlDg according to such prlDcInles and ussaes,
made no dKrerence accordlDi to the conatruetloa
uniformly giren by this court.
Coagresa baa ilie power to eBtali'lah circuit and
dih-.rlct cDucu Id Btiy and all tbe Slatea of Ihe
Union, end to confer on tbetn equitable Jurisdic-
tion In coses comlug within the ConBtltullon. It
falls wllblD tbe eiuress words of tbe Constitution.
relative to the pru
Statca In Loulamn
r ibe c-
dI Cod
B of 1
sclloi
.. . . fairly construed as used In eon-
trad latl net Ion lo criminal cansra. Tbey apply
equally to cases la equity, and If there an anV
lawB In I.oulalaaa dlrccllug tbe modf^ of proceed-
ing Id equity caua- - - - . . -_ .i -- - -
an^ will govsni t
t adopted by ti
■e adoptet _, ._.
e Id the CourU of the
It there are BO equitable claims or rights cognis-
able IB tbe courts of tbe State ot Loulilaaa. nor
any courts of equity, and no State laws regulating
the practice in equity causes, the law of 1824 does
— • -iply to a case of chancery Jurisdiction, and
ftrlct Co ■- - .— _.-_.
der the former acta of <;oBgreai
'!".!.'_"_ "!"™fli''t or dli
„ ._.. ..'hole bill cannot be suaialned.
It li an eatabllshed and unlvcrsaJ rule of plead-
ing In chancery tbat a defeudsnt may mpct B com-
plRlnanl'a bill by sSTeral modes ot defense. He
may demur, answer and plead to different parts o(
the bill : so that If a bill tor a discovery contain
B roper matter for the one and not tor toe other,
le defendant should answer the proper, ---' "-
mur to tbe Improper matter ; and If be d(
the whole bill, the di
[Auisiana.
On the 25th of July, 1832, the appellant, Ed-
ward Livingston, Died a bill of complaint in
the District Court, by his solicitors, statins that
on or about the 2Sth of July, IS22, beiiiic in
want of money, he applied to Benjamin Story
and John A, Fort, of the city of New Orleans,
who agreed to lend to him the sum of $22,036;
of which a part only was paid in cash, part in >
note of John A. Fort, and (8,000, parcel of tha
aaid sum, was agreed to be afterwards paid to
one John Rust, for the purpose and in the man-
ner afterwards stated. To secure the repay-
ment of the money and interest, at the rate of
eighteen per cent per annum, he conveyed to
Fort and Story certain property, with the im-
provements on the same, situated on the Bat-
ture In New Orleans, owned by him. When
this property was so conveyed, Fort and Story
delivered to him a counter letter, by which
they agreed to reconvey the property to him on
the pavment of f25,()00 (being the sum ad-
vanced'and the interest) (m the 1st day of Feb-
i-uary then next; but it the same was not paid
on that day, the property should be sold; and
Hftcr paying the sum of |26,000 and the costs
of sale, the residue should be repaid to him.
At the time of the sale, the whole property was
covered with an unBnished brick building, in-
tended for fifteen stores ; and a contract bad
been made with John Rust to Rnish the build-
ings for S3,000- Story agreed to pa; the 18,000
to Rust, and this waa, with the interest at eight-
een per cent- on it, a part of the $25,000 to bo
repaid on the 1st day of February, 1823. The
property was, at the time of the loan, worth
$60/)00, and U now wgrth double Um aum.
SDvmncK Coun or thk UmiBt Statsb.
«tty, %ai the eomplatn&nt went to New York
884*] on A visit, expecting the stores to *be
ftnished hj hU return, or tlut st least three of
them would be in « condition to let; behaving
received an offer of rent for each of the throe,
which would hSrVe given a rate of interest equal
to a principal of (10,000 each for the three
■mallest itorea.
The complainant statea that, on hii return to
New Orleans, he found little or nothing bad
been done to the stores; the |8,000 had been
paid to John Rust; andif theproperCyhadbeen
■old in February, it would not have produced
anything like its value. He tiieretore applied
to Fort and Story for ■ further time to pay the
money borrowed, which they would not con-
sent to but on the following conditions; that
the property should be advertised for sale on
the 2d day of June then next; that the sum due
to them should be increased from 926,000 to
t2T,600g wh'ch sum was conipoaed, flnt, of the
said 126,000; second, of (1,600 for interest, for
the delay of four months, at eighteen per cent.;
third, $800 for auctioneer's commissions, of $50
for advertising, and of $200 arbitrarily added,
without any designation; of which a mem-
orandum was given bv the said Fort and Story,
and ia now resdy to be produced; and that the
counter letter so executed, as aforesaid, to him
by the said Fort and Story, should be annulled.
Being entirely at the mercy of Fort and Story,
he was obliged to consent to these termH. in hope
of relief when money should become plenty;
but, on the contrary, the pressure became great-
er, and on the 2d of June, in order to obtain a
delay of sixty days, he was forced to consent
to sign a paper by which it was agreed that the
debt should be sugmented to the sum of $27,-
BSO.TO; and that if the same was not paid on
the Cth of August, then the property should
belong to the said Fort and Story without any
sale; but there was no clause by which he
should be discharged from the payment of the
sum so borrowed, as aforesaid, whereby he
would have been liable to the payment of the
■um so advanced In ease the property had
fallen In value.
On the eth day of August, above mentioned,
the said Fort and Story demanded, by a notary,
the full sum of $27,830.76, which included the
said chares of $S0O for auctioneer's fees, for
selling, although no sale had been made, and
CSB*] *all tiie other Illegal charges above
stated; and on non-payment they protested for
damages and interest on the sum; thereby
showing their Intent to bold the complainant
responsible for the sum demanded. If the prem-
ises should, by any accident, become InsnfB-
dent in value to pay the same.
Fort and Story remained in possession of the
said premises until the death of the said John
A. Fort, which took place sometime in the year
1828; and after bis death the said Benjamin
Story took the whole of the said property by
some arrangement with the hein of Joha A.
Fort; and is now and ever since has been in
the sole possession thereof, and the said John
and Benjamin In the litetiroe of the said John,
and the said Benjamin, after the death of the
said John, have raeelved the renta and proflts
of the said property to tha amount at least of
The bill aUtea that the oomplainant la adviMd
and believes he haa a right to aslt and raemrer
from the said Benjamin Story the poaseaaion
of the said property, and on account of the
rents and profits thereof; the conveyance of th«
same having been made on a contract for the
loan of money, and although in the form of »
sale, was in reality only a pledge for the repay-
ment of the samei the act by which the oom-
The bill concludes as foilowa:
"And your orator prays that. If on said ac-
count it sbalt appear that there ia a balance du*
to him, as be hopes to be able to show will b*
the case, that the said Benjamin Story may bs
decreed to pay the same to him, and to surren-
der the said property to him; and that if any
balance be found due from your orator, that
the said Benjamin Story may be decreed to de-
liver the said property to your orator on hia
paying or tendering to him the said balaneor
and that your orator may have such other ra-
lief as the nature of his case may requirei Mid
that the said Benjamin Story, in his own right,
and also as executor of the last will and testa-
ment of the said John A, Fort, or in any other
ler representing the estate of the said John
A. Fort, may be summoned to answer this bill;
your orator averring that he is a citizen of the
State of New York, and that the said Benjamin
Story is a citizen of the State of Louisiana, now
residing in New Orleans."
'Upon this bill a auhpinna was issued [*63*
directed to the marshal, commanding him to
summon Benjamin Story to appear at the Dis-
trict Court, on the 3d Monday in February,
1634, "to answer a bill exhibited against him
the said court, together with certain inter-
rogatories therewith filed by the complainanta."
A subpoena was also issued in the same
terms, directed to Benjamin Story, executor of
John A. Fort.
On the 17th day of February, 1834, Ben-
jamin Story came into court, and by his so-
licitor, L. Fierce, Bsq., filed the following da-
'Tbe defendant by protestation not con-
fessing all or any of the matters and thinga in
" complainant's bill to be true in such man-
and form as the same are therein set forth
and alleged, doea demur to the said bill; and
for cause of demurrer shows that the com-
pl^nant has not b^ bis said bill, made such a
cose as entitles him. In a court of equity in thia
State, to any discovery from this defendant,
touching the matters contained in the said Ull,
or any or either of such matters, nor entitle*
the said complainant to any relief in this court,
touching any of the matters therein complalnad
of. And for further cause of demurrer to oaU
bill, he shows that by complainant's own show-
ing, in the said bill, that the heir of John A
Fort, who is therein named, is a necessary
party to the said bill, as much as it is therein
stated that all the matters of which he com-
plains were transacted with this defendant,
and John A. Fort, whose widow, the present
Mrs. Lucenbourg, is the sole heir and residuary
legatee; but yet the said complainant bath not
made her party to the said Dill, wherefors as
before, and for all the above causes, and for
dEvm other good eauses of demurrer appearing
8U
LtTtttaaioB T, Broms,
!• the uld Un, till* defendant doM demur
tharato; Mtd he prayi the judgment of thli
koBonbla court, whether he shall be compelled
t» make uay further and other anawer to the
•aid bill, and be humbly prayi to be dismissed
from hence, with his reasonable cost«
behalf luatained."
Oa the 20th of May, 1S34, th« Diatrict Court,
I7 a decree, aiutained the demurrer, and ordered
the lull of the comptainant to be dismissed.
and Mr. Kty tor the appellantp, and bj Mr.
Clay and Mr. Porter for the sppullee.
For the complainant it was contended —
1. That the District Court of Louisiana has,
hj the CoDBtitution and laws of the United
States, the same chancery powers as a Circuit
Court of the United State* within the other
fUtet.
2. That the bill filed presents a case In which,
*■/ law, and the usages of a court of equity,
the complainant is entitled to relief, and that the
demurrer ought to have b«en overruled.
S. The bill of complaint preeenta a caae
which, according to the laws and practice of
Umisiana, entitles tbe complainant to relief.
Ur. Key, for the appellant. The bill states
a ease for a court of equity; and the sole in-
^ry is, whether the District Court of Loui-
siana has, by the Constitution and laws of the
(Jniled States, the same chancery powers as
other courts of the Lnited States. This juris-
diction that court certainly has, unless it it
taken sway by the Act of Congress of 28th
Hay, 1824 (ch. 181, T Laws U. S. 31S), relating
to the proceedings In the courts of the United
Spates in Louisiana.
rhat act directs that the modes of proceed-
iag in the courts of the United States shall be
the same as in the courts of Louisiana. The
District Court has power, by the law, to regulate
the practice in the court, where the niTes of
the State courts are not adapted to that court.
The mlea which the court may adopt must be
neb ma will not interfere with the rights of
rtlee In the eoort to all the remedies which.
other courts of the Union, are administered
according to tfae Conatitutioa.
Relief in equity, when there ii not a plain
and adequate remedy in law, la among these
righta. Cited, 4 Wheat. 212, 222, 116. It
became the duty of the court to make adequate
ndes to apply such remedies. It will be con-
tended by the appellees that the operation of
the Act of 1824 was to take away equity juris-
dietton. There ii nothing in the letter of the
law which does this, or which will, in any
way, authorize the inference that such was its
pirpose. The law, says the court, may, not
that it must, adopt the State practice. As the
Constitution gives a right to relief in equity,
(SS*) tbe law should be 'construed ao as to
mable « party to obtain that relief. In
Louisiana tnerc are no courts of chancory, and,
therefore, no rules can be invoked from the
Lotdsiana oourts to regulate proceedings in
eqmty eases. There could not be an intention
^ Ctmeresa to adopt the rules of the State
eonrta m such cases, as no rules having any
at^eatlon to cases of that description existed.
The application made to the District Court
*' Um District of Louisiana waa not termed a
Va In equity, or tn dianeery, bat a fall! o(
complaint; and under this, if, by tbe practice
of Lniiisiana relief could be afforded, why was
It not givent Jurisdiction, even according to
the principles asserted by the appellees, should
have been taken if any remedy could have been
afforded in the courts of Louie i ana. But in
this case, tbe court took equitable jurisdiction
of the bill; for it sustained the demurrer, and
dismissed the bill. Cited, 3 Peters, 431, 44S,
460; 2 Mason, 270; I Galliaon, 636.
One of the great benefits which, under the
Constitution, a party who goes Into a court of
equity has, is that of a discovery. This is ob-
tained by the right'he baa to put interrogatories
to the defendant; and the practice of the chan-
cery courts of England has been adopted in
the courts of the United States, as affording
the means of using this, as well as all other
rights which exist under that practice. It is a
right not depending on the will or consent of
the court. But in the courts of the State of
Louis inna the right to a discovery from a
defendant exists only by the consent of the
The complainant here presents a case showing
wrongs, oppression, injustice and usury. He
has, under tfae Constitution, a right to present
his case in a federal court, and he should there
have had relief. These are constitutional rights,
which should not have been denied to him ; and
yet his suit Is dismissed, and no remedy is
afforded to him.
&Ir. Porter and Ur. Clay, for the appellee.
It is understood that the question in this
case Is, whether the common law, and the
equity forms of proceeding, shall be intro-
duced into Louisiana. You cannot introduce
the chancery law unless you introduce the
common law, and if this Is done it will pro-
duce great dissatisfaction In that State.
*It is a singular question whether a [*flSt
system of jurisprudence exists in a State where
it is not known or understood. Whether, in a
community where the civil law prevails, a
system of laws shall be Introduced which are
against their prejudices.
The Constitution waa formed at a time when
the common law prevailed in all tbe States
which then eompoaed the Union. In those
states there must therefore have been chancery
law, for it ia a part of the common law; and in
reference to this state of things, in all those
States there were recognized and established a
chancery and a common law jurisdiction, and
the principlea and rules of courts of common
law and courts of chancery. The third section
of the third article shows that the Constitution
did not Introduce those principles, and those
modes of proceedings. It found them existing,
and provided for their administration. The
terms of the Constitution are "all cases of
law and equity arising under the Constitution."
The difference between law and equity, re-
quiring different tribunals for their application
to cases, exists in no other country but in
England and the United States.
(>]r proposition Is that there can exist no
r-quity law but where the common law pre-
vails. In those States they are distinguishable
from each other, althoiigli part of the same
law, and these distinctions are co'iisidnred a
part of the common lawj and differtnt eourta
SUPIEUE COUUT UP lUK UnIIILD iJTATU.
Ibtt
•cnfonw theae different ■yBteniB. But in Loui-
«Uina these distinctiooB do not exist. To talk
«f dietingulBhing law and equity, ia as reason
«b)e there na to ■tatu that equity and equity
These views of the subject are sided by the
Act of CoDgress of 17K, in addition to the
Act of I78B. The latter act provides for modes
of proceeding in courts of equity, as contrsdis-
tinguislied from courts of law.
The jurisdiction of the courts of the United
Stfttei U to be exercised according to what is
fiveo to those courts by the laws o/ the United
tatesi not by the general provisions of the
Constitution. If the highest court nndpr the
Constitution has other powers, those of the in-
ferior courts exist only under acts of Congress.
The cases cognizable under the Constitution
*re those arising under the Constitution and
laws of the United States; and this is not such
a case.
By the Constitution and laws of the Union.
«I0*] the courts of the •United States have
power to decide rights in cases between citizens
of different States ariaing under the Cnnolitittion
and laws of the United States, but not ntlicrs.
Does the term "law and equity" run tliroiigh
all the provisjons of the article! It is con
tended that by a fair and grammatical i/on-
atruction It does not.
This court will not take hold of all Hip
powers which the Constitution has derlarid to
belong to the judiciary drpartment. and m:ike
rules to axecute those powers. Siipjmse at tlii-
formation of the Constitution there hud exisli'.l
in some of the States a system of civil law, and
no common law; would the common law hsu'
been )ntrodu''ed by the establishment of the
Constitution! The law would have been taken
U it stood and wsis enforced; as no purpose
existed to introduce new systems of law, but
only to carry into effect the prevailing laws.
The Judiciary Act provides that jurisdiction,
■ball be given to the courts of tbe United
States in law and equity, concurrent with the
courts of the State. But where there ia no
equity Jnrlsdiction in a State, how can there be
a concurrent jurisdiction! It would be a lim-
itation of the powers of the courts of the
exclude the jurisdiction from cases arising un-
der any laws. The language of the Constitu-
tion, although employed at the period when no
aystems existed but those of law and equity, ia
unple for all cases.
As to tbe suggestion that the district Judge
ihould have moulded the proceedings so as to
give relief, it must be observed that the case
•tood before the judge upon a special demurrer,
assigning for cause that the plaintiff had de-
parted from the whole course of proceeding in
that court. It was not asked of the court below
that the proceedings should be amended, and
the judge was bound to decide the case on the
bill and the demurrer. But if a district court of
tbe United States, sitting in Louisiana, has law
and equity jurisdiction, and giving the doctrine
Its full effect, It Is contended that Congress, In
conferring equity jurisdiction on any court of
the United States, has power to declare what
■hall be the form of proceedings by which that
equity Jurisdiction ia to b« exercised.
The first proposition — tbat Congress baa por-
er to provide forms of proceeding for ita equity
courts, will not be doubted. "This [*«41
court has more than once decided, as has been
stated, that in relation tn the inferior courts,
the judicial power extends no further thaia
legislation has conferred it. If thia be true. It
follows that Congress can modify the means
by which that power is to be exercised, as well
as limit its extent.
The second proposition — tbat Congress has
given the United States Equity Court in Louisi-
ana forms of proceeding different from those
given tbe courts of chsncery in England, nay
not be so obvious, but it Is equally true.
The provisions of the Act of Congress of the
26th of May, 1824, furnish the law on thia
subject- How stands the case on that IswT
All civil causes in the District Court of tbe
United States in Louisiana must, by the Act ol
1»24. be conformable to the State practice. A
suit in equity Is a civil cause; but a auit in
equity shall not be conformable to the State
The first rule tn the construction of statutes
is to follow the tetter, unless the interpretation
leads to an abaurd and pernicfous result. The
Act of 1824, which declares that the forma of
proceeding in the United States Court shall bt
the same In the State Court, produces no such
conae<juences. Would It not, therefore, be »
violation of a rule, in the case now under cihi-
sidcrstion, that though the law said thepraeUca
in both courts should be the same, this court
should pronounce they are not to be the same.
As to the Inquiry, what is to be done if there
is no equity State Court, nor any law regulat-
ing the practice in equity cases! This question
is answered by the cases of Robinson t. Camp-
hell, 3 Wheat. 212; 4 Cond. Rep. 236; The
United States v. Howland, 4 Wheat. 108; 4
Cond. Rep. 404; Parsons v. Bedford, 3 Peters,
433.
When It is said that the proviso In the Act of
Ig24 gives to tbe judge of the Court of the
United States power to modify the proceed-
ings in the courts of Louisiana, and theroftve
there Is no imperative and absolute force given
to the State proceedings, this is admitted to be
true. It does leave the judge power to modify
the State proceedings; but then it follows that
until he does modify them, the^ form the
rule. Were it otherwise, the proviso would bs
the rule and the general enacting clause tha
*It is admitted that no absolute re- [*A4S
peal was made of the antecedent modea of pro-
ceeding authorized by tbe former acts of con-
gress. There is no absolute repeal of thoee
laws, but there is a repeal sub modo, that ia, the
State forms of proceedings take place of the
common law and equity remedies, unless the
judge revives them. If the statute has not
this foree. It means nothing and effects noth-
Now, though there must be courts of equity
In each State, which, in the abaence of any
flppcial legislation are to be governed in their
practice by that regulating the Court of Chan-
cery in England; though State modes of pro-
ceeding have no force except so far as Congress
gives them force; though the judge may make
rules to modify tbem; though former modes of
)(U*
Livin
prvMMBi^ m not lO ■bBoIutelj' repraled, but
thkt the ludse msj b; rule prewrve them; itill
t»j or mil ol tbese po«tii!>teB do not tuthorize
tbe eondiision that Congress ma; not tske the
dvil lew proceeding* of LauUiana for the
forma of an equitj court in IjOiiiBiana. Tliej
all ituid by tbe side of our position, not op-
po*it« to it.
The proposition is that the Congrrat of the
United States may adopt what forms of pro-
nedinga it thinks lit for the administrBtian of
jmtice in its equity courts, provided it pre-
aarrea to the siillors the power of the court over
prtMf, and the espacity to extend relief, whivh
diatinguish ■ eourt of equity from a, court of
eommoa Ia».
Congress has cleurl;, bf the Act of 1824,
adopted the Louisiaiia practice. What does
that act say r The mode of proceeding in civil
cMiaea in the United States courts shall be con-
formable to the law directing the modes of
practice In the F^tate Court, unless the judge
modily them. Well, he has not modified
them. Then, why should we not have the
Stat* practice?
If our civil law proceedings pive full effect
to all poivers of an equity rouit; if, in trulh,
tfcey be the same; why should the fact ot their
bmng called law proceecliiigs di'prive the ap-
pellee of the benefit of thu Act of 1824! It is
not admitted that an sdverse answer can be
(iren to this question. The truth is tiiat there
■re no law proceedings in Louisiana as contra-
distinguished from those in equity; and the
■ppticatiou of the term law prnoeedings to a
procedure essentially that of chancery, is the
cause of all the difficulty in this case.
•4S*] "If they were called proceed ines in
equity, it appears tbe Act of 1S24 would ap-
ply; but not being so called, it cannoL
The ordinary courts of Louisiana are armed
•ith tbe full powers of sn equity tribunal I So
trae is this, that the counsel for the appellant
is challenged to show the slightest discrepancy
Id any iniportant particular; and it is helicvetl
tbst if any one of the court were about to create
> court of equity, not by a general reference ti>
another system, but by a special enactment, he
would take the Louisiana statute as a model;
or, if he did not, his own legal accomplish-
nwnts would induce him to draw up one in all
itapects similar.
There is a most important statute which has
been overlooked. It is that of 1828 (ch. m).
It ia urged that the national I^^gislature, by the
Act of 1824, intended to change the former
pnctire of the law, snd on the equity side of
tbe District Court, in Louisiana, and introdiicp
the dvil law practice into both; and that, in
fact, it had done so. The Act of 1828 is re-
fwrid to, wherein it is declared that the forms
of proceeding in the courts of tbe United
SUte«, in all States admitted into the Union
since the year 178D, should be according to
common law and equity forms, but that the
provision of the act should not be applied to
the State of Louisiana. It appears that in an
aore dear or unequivocal maimer could Con-
gr«M have declared their opinion that Loui
•tana had another system provided for her. anil
that it would be unwise and unjust to give to
her what was properly extended to others,
Ui. WUt^ of Florida, for the appellant.
The act of Con^reia organizing a diatriet
court for the temtory of Orleans, conferred
upon it tbe same jurisdiction as that which
was exercised by the court of ths Kentucky
District.
The Act of 1812, providing for the admia-
sion of the State of Louisiana into the Union,
.declares that the District Court of tbe SUte of
Louisiana shall have the same powers and Ju-
risdiction as the District Court lor the territorj
of Orleans.
This law refers to the act which was based
upon the act organizing a court of the Uaitad
.States for the Kentucky district, which, under
the provisions of the act constituting it, had all
the powers of a circuit court of the United
States within the other States.
*It may then be ai^sumcd that by tba t*«44
laws of the United States, the District Court
of the State of Louisiana had, prior to tbe Act
of 18Z4, the same powers and jurisdiction, at
taw and in equity, as that possessed and exer-
cised in all respects by the circuit courta of the
United States within the several States.
This jurisdiction ia retaliated by law, in pur-
suance of the Constitution.
The first section of the third article of the
Constitution declares that the "judicial power
of the United States shall be vested in a su-
preme court, and in such inferior courts as the
Congress may, from time to time, ordain and
establish." The District Court of Louisiana
is, as it has been shown, one of these inferior
courts ordained and established, in which this
judicial power Is vested.
The second section, third article, declare*
that "the judicial power shall extend t« all
cases ID law and equity." From the moment
of the establishment of the District Court of
Louisiana, there were vested in it by the Con-
stitution, equity powers and jurisdiction; these
powers and that jurisdiction cannot be changed
or limited by any act of Congress. The juris-
diction not only of the Supreme Court, but of
the inferior courts, is estaolished by the Con-
stitution, and cannot be diminished, altered or
limited, under the pretext of regulating the
practice of the courts of Congress. If, then,
the Act of 1824 was susceptible of the con-
struction placed upon it by the learned coun-
"cl for the appellee, it would be a violation of
the Constitution of the United States. Con-
)p-esa have as much power to decTsre that any
other provision of the Constitution shall be
dispensed with, or suspended in any State of
this Union, as to enact that the judicial power
of the District Court of Louisiuna shall not
extend to cases in equity; and the equity re-
ferred to has been construed by this court to
be that system we borrow from the parent
country; in other words, that good, old, con-
scientious, honest system, bssed on the civil
law, as understood and practiced in England.
From this view of the powers conferred by
the Constitution and laws of the United'
States, it is propoprd to establish these points:
1. That the District Court of the Unitedi
States, sitting in Louisiana, has equity jurii'
diction.
2. That there are no equity proceeding* tit
I.oiii)^lanB as 'contradistinguished from [*C4B
law. and that there is no law of the State of
Loui.'iiwna, directing the mod* «I practice \m
<IU
Bdpikuk Coubt or the Uiirm) SxATia.
•quit J c*Bes, as eontrMJiBUiiguIahed from e
It la not to be disputed, after adntitticg the
equity juriBdiction of the District Court, that
it* chancery powers are the same, Its rule of
decision the same, and ita juriadlction the same
as thoBB of the circuit courts of the United
States in tlis other States. The character of
the State law has no influencs whatever upon
the exercise of equitable juriedictioa by this
court. Its remedies in equity are not to be ac-
cording to the practice of the State court, but
according to the princiiiles of equity as dis-
tinguished and defined in that country from
which we derive our knowledge of these prin-
ciples. The District Court of Louisiana is. In
fine, a thoroughly orfi^nized court of equity;
and as perfectly competent to the administra-
tion of equity principles, aa a court of chan-
cery in England, or a court of equity in Vir-
ginia or New York. So it is in all the other
States, hy the Judiciary Act of 1789, made in
execution of the Constitution of the United
States ; and so it consequently is in the State of
Louisiana, whose inhabitants enjoy the bene-
fits of the same law and Constitution, to be
expounded in precisely the same way towards
them, as towards the other States.
It is also free from dispute that, by the Pro-
cess Act o' 1702, which was extended to Loui-
siana, the modes of proceeding in suits of
equity in the Diatrict Court of Lauisiana, were
not to be according to the practice of the State
courts, but according to the principles, rules
and usages which belong to courts of equity,
as contradistinguished from courts of com-
mon lair; subject to such alteration by the
courts as miglit be thought expedient, etc.
The situation or condition of the District
of Louisiana, before the Act of 1B24, was
passed, must be admitted, then, to have been
aa foliowa; It was a court of equity, in the
most comprebxnsive sense of that expression,
according to the principles of equity jurisdic-
tion aa defined and distinguished in England,
with auch limitations only aa were found in
the Constitution and tans of the United States.
The practice of the court, moreover, was such
as prevailed in courts of equity, as distin-
Cuished from courts of taw; and the rules of
Its practice were to be sought, like ita jurisdic-
616*] tion, in the principles, 'rulesand usages
of courts of equity, unless altered in the man-
ner authorized by the Act of 17S2. Whether
the District Court of Louisiana, at any time,
actually exercised its jurisdiction according to
this practice, is of no moment; the court pos-
sessed the faculty of exercising it in this way,
whenever a suitor should lawfully appeal to it.
It is in regard to a court of equity of this de-
scription, constituted by a law of the United
States, to exercise its powers according to the
laws and the Constitution of the United States,
that the Act of the 26th of May, 1824, is to be
interpreted; and it is to be interpreted with
the aid and influence of the admiHsion that the
courts of Louisiana exercise no jurisdiction In
equity, as dintinguished from law, and have no
practice applicable to such a distinction; and
that there is no law of the State directing the
mode of practice in such suits of equity. The
act is to be interpreted as it ought to lie, in a
ease where it is acknowledged that the mode Of
SflO
practice prescribed by the law of Louisiana b
applied to the cases in which proceeding ara
at taw, and not in equity as distinguished from
law; and that there is no law of the State not
practice of the courts, having any reference t«
a proceeding in equity aa mstinguished frow
law.
With thU view of the equity jurisdictioi,,
and modes of proceeding In equity of the Dis-
trict Court of the United States in Louisians
before the Act of the 2eth of May, 1824, wt
proceed to a brief consideration of that act.
The Act of 1824 does not obsoluttly repeal
the antecedent modes of proceeding authonMd
in the District Court of the United States un-
der the former acts of Congress, nor give im-
perative force to the modes of proceeding in
civil causes in Louisiana. This vas decided in
Parsons v. Bedford, and the counsel of the ap-
pellee admit the propriety of that decision.
The act, in general terms, provides that the
mode of proceeding in civil causes in the courts
of the United States in Louisiana, shall bs
conformable to the laws directing the mode ol
practice in the district courts of said State;
but the judge of the United States Court is au-
thorized to make such provisions aa may b*
necessary to adapt the State laws of procedure
to the organization of such court of the United
States, and to avoid any discrepancy, if any
such should exist, between such State laws and
the laws of the United States.
The terms of the act are broad enoufi^h to
comprehend every 'description of civil [*6I3
causes, suits in equity as well as suits at law;
and to require that all of them shall conform to
the laws directing the mode of proceeding in
the State courts; but whether suits in equity
are or are not comprehended, must depend on
the laws of Louisiana, which are made the
guide, subject to the power of modification in
the judge. If the laws of Louisiana contain
no direction as to the mode of practice in suits
of equity, as contradistinguished from suits of
law, and if this distinction is, as has been stated,
unknown to the courts of that State, then it is
submitted as the true construction of the Act of
must stand upon tbe Process Act of 17B2, be-
cause there is no direction in the State laws to
affect the practice in such suits. It cannot be
reasonably contended that if the State laws did
not direct the mode of practice in the district
courts of the State in any respect, that, never-
theless, the practice of the United States court*
in equity suits was to undergo a change, and
to conform to the practice of the Stat« courta.
The conformity required fa that of the practic*
of the United States courts to the laws, direct-
ing the mode of practice in the State courta,
and not to the practice itself; and this la th«
plainer from the power given to the judge hj
the proviso, which is to make such rulea, etc.,
as shall avoid the discrepancy, if there be nny,
not between the practice of the State courta »ai
tliat of the federal courts, hut between such
State laws and the laws of the United State*
The intention of the Act of 1824 was, in fin«,
to subject the practice of tbe United St«t«a
courts to the directions of tbe law of the State,
if there were any, as it was liefore subjected to
the lawa of the United States; merely provid-
ing, bj a power in the Judge, to render the
Patet« •,
LimesTOK t. SiotT.
e ocnu^, And to prevent ditcreiHtiicy :
but it WM not tbe loteation of the act to change
tbt prmctiee, if there w»e no euob direction.
Now, if the State Uwe make no direction aa to
tba mode of proceeding in the State enurtt,
tbflt the Act of 1824 n whotl; without cfTect;
and if the State lawa contain no direction as to
Kiiti in equity in the State cotirta, then the Act
of ISM ii wholly without effect upon tuita in
cqnity in the United State* court*. At there
wai no abeoluta repeal of tbe antecedent equity
practice by the Act of 1BS4, that practice con-
Ubimb in force until the State laws contain a
•48*] 'direction in regard to the practice in
MKh tuits in the State courts.
The eounael for the appellee contend that aa
the Act of 1824 leaves the judee the power to
modify the State proceedings, "it follows that
until he does modify them, they form the rule;
and that were it otherwise, the proriso would
■>• the rule, and the general enacting clause the
exception." But this ia plainly a non sequitur;
for the State proceedings do not form the rule
ia equity until the judge modifies them, unless
the direction in the State laws, applies to the
practice of suita in equity. If it aoea not, no
modiflcation ia necessary, because the State
law, for want of a direction, does not apply at
The learned counsel also contend that, al-
though there ia no absolute repeal of antecedent
modes of proceeding, authorized hy former acts
of Con^cBB, yet "there is a repeal sub modo;
that is, the State forms of proeeedinga take place
rf the common law and English remedies, un-
less the judge revives them." But this begs
the very question. The argument for tbe ap-
pellant ia, on tbe contrary, that there is no re-
peal, absolute or sub modo, of the antecedent
mode*, unless the State law contains adirection
b r^ard to the suits in which those antecedent
modes of practice were authorized. If it is si-
tent in r^ard to suits in equity, then the ante'
cedent practice in equity ia not repealed at all.
The counsel for the appellee state their propo-
sitioa in tbe following terms, "that the Con-
(Teas of the United States may adopt what
toms of proceeding it thinks fit, for the ad-
ministration of justice in its equity courts, pro-
vided It preserves to the suitors the power of
the court over proof, and the capacity to ex-
tend relief, which distinguish a court of equity
from a court of common law;" and "that Con-
grru has clearly, by the Act of 1824, adopted
the Louisiana praetice; for what does that Act
•ayf The mode of proceeding in civil causes
in the United States Court shall be conformable
to the )bw directing the modes of practice in
tbe State Court, nnless the Judge mixlify them.
Wtl\, he has not modlBed them. Then why
proposition Is not consistently pursued through-
out. Congress has not, by the Act of 1S24,
adi^ted the Louisiana practice, renerally or
I4ff'] ahmlntely, *aa the proposition imports;
■or doea that act adopt tbe practice at all. The
very terms quoted by the counsel are, that the
■roeeedinga in the United States courts are to
M eoaformable to tbe laws directing the prae-
ttea; and unless tbe laws direct the practice in
•qidtj suits Ib the State courts, they contain no
t Ih ad.
Mr
which the equity practice ts th*
United State* can conform; In other words,
there is no law of Louisiana upon the eubjeot
of equity suits, and consequently there is no
law for the practice in equity suits to conform
to. The State practice, therefore, is not to b«
followed in an equity cause, because it is the
practice in suits at law as diatinguisbed from
equity, and not the practice in suits in equity
as distinguished from law; In regard to whien
latter suit, there ia no law of Louisiana direct-
ing anything.
It may perhaps be said that the argument*
thus stated mistake the intention of the Act of
1824, which was to melee the practice in the
courts of the United States in suits of all kinds
conform to the directions of the law of Louisi-
ana in suits of any kind ; and that this is shown
by the terms of tbe law, which says that the
mode of proceeding in such causes in the courts
of the United States, shall be conformable to
the laws directing tbe practice in the district
courts of the State, withont saying In what
causes, whether of one description or another.
It i* submitted, however, that tbe act ia most
lasonably interpreted In being held to give
effect to the law of Louisiana in cases to which
it spplies, and not in cases to which it does not
apply. If the argument stated in the preced-
ing paragraph is carried out, it will extend to
this, that the law directing the practice in suits
between ordinary parties in the State court*, I*
to EOVcm in causes of admiralty and maritime
jurisdiction in the United Statea courts — for
these are certainly civil causes, and come aa
fully within the letter as suits In equity. It
will extend even to this, that the State law di-
recting the modes of proceeding in criminal
uses, is to govern in the United States court*
civil causes — which is of course too extrava-
gant to be maintained. But where i* the line
to be drawn, if it has not been truly drawn in
the preceding remarks by the counsel for the
sppelleeT Tbe conformity which the Act of
1824 intended to produce. Is the conformity be-
tween corresponding or similar causes, and not
between causes having *no correspond- [*eso
ence or similarity; and it refers to the law, and
not to tbe practice of the State courts, for this
very reason. If the reference had been to the
practice of the State courts, in civil causes, and
not to the law. It might be considered that the
practice was rigorously adopted, however in-
congruou*, and whether applicable or not; hut
when the reference is to the law directing the
practice, then tbe reason, spirit, intention, scope
and application of the law, altogether, form s
part of it, and if it mean* to give no direction
— regard to suit* of a certain description, it is
I to them as if It were no law.
The result of these remarks may be briefly
stated a* follows: The Act of 1824 intended that
tbe practice in the United States courts sbould
follow the direction of tbe law of Louisiana
regulating the practice of the State courts.
That law doea contain a direction in re-
conform, aubjevt to the power of modiflcatioa
in tbe judge. It does not contain a direction
in regard to suits in equity; and therefor*
such suits are to follow tbe antecedent modes
~ procedure authorized by fommr acta of Con-
«n
SuPBEus Court 0
greu. The rules of proceeding In the Stnte
court, howevpf clearly the counsel for the
appellee may have shown that "they are fully
adapted to a court of equity," are not the
practice of the courts of the United States be-
cause no law of Congress has enacted that they
shall be. It IB not enough to show that the
State practice is adapted to a court of equity, it
must also be shown that it has been adopted for
equity suits In the United States court by
■ct of Congreea.
On this point, however, of adaptation of the
State mode of procedure to suits in equity, tht
counsel for the appellant will make a few re
narks. That by modification it may become
ads pled to Buch suits, need not be contro-
verted; for the basis of the ^tate procedure be
ing petition and answer, if the power of modi-
fication is unbound, it may, of course, be
modified to the very point of adaptation. The
Act of 1824, indeed, authorizes the very end or
result, by enacting that the judge may make
such rules and provisions as may be necessary
to adapt the State laws of procedure to the
organization of the federal court; and where
the counsel for the appellee find a reason for
their strenuous claim to the benefit of the State
• 51*] practice, 'in preference to what they
style the chancery practice of England, when
the power of modification under the Act of
IB24 is large enough to produce B perfect sim-
ilitude of the two, It is difRcuU to perceive.
That the practice of the State courts is not
adapted at present to suits in equity has not, it
is believed, been shown, nor can it be. It must
be useless to point out all, or. indeed, any of the
differences which exist between the two modes
of procedure; the statement of a general princi-
ple trill be sufficient to show it, and that is. that
the remedies in equity result from the princi-
ples of equity, snd that they must be sought,
obtained and used in conformity to those
principles. A mode of procedure which does
not acknowledge the distinction, cannot give the
remedies which depend upon the distinction.
It may, without doubt, be made to give them
by modifications; but to say this is to say that
tn their present state, they cannot give them.
Whether the Act of Congress might not safely
have extended this mode of procedure to suits
in equity alone, with a power of modification,
is, however, not the question; for it may, per-
haps, safely extend any mode of procedure,
with tli« same modifying power; but it is.
whether they have extended it by the Act of
1S24! and that they have not, has, it is hoped,
been already shown.
There ia one remark which it Is deemed
proper to make. In regard to procGedings in
equity suits in the courts of the United States.
The distinction between law and equity exists
In the Constitution as well as in the organi7.a-
tion of the federal courts. It cannot tie lawful
to confound it. Rights of the highest nature
depend upon it. If the case is an equity case,
its modes of proof and trial, as well as its de-
crees, are of one kind; if at law, they are of
anotlier. A plaintift cannot submit the tri"! of
facts in a case at law to the court; nor can the
facts, in such a case, when tried by a jury, be
reviewed by the court. These are great con-
■titutional provisions, and they cannot be se-
cured without maintaining the distinction be-
sei
niR UntTiD Sunt. Itll
tween suits at law and eiiita In equity; or with-
out maintaining equity [headings, which ara
essential to give effect to the distinction. Tlw
pleadings must show a case in equity, and not
a cose at law; they must be such as to enabia
the court to form the issue, and also to decide
it; such, also, as to give the parties the benefit
of 'a review in the Supreme Court: the [*tba
pleading, the proofs and the decree, must all
be BO framed as to show what ia asked, what ii
the party's right to it in equity; what is grant-
ed, and that what is granted is within the cotn-
petency of a court of equity; and that a code of
procedure for cases at law will answer fully
these ends, is not admitted, and has not been
shown. That the principles of equity can ba
so applied in Louisiana as to give sn effect to
contracts and tranEattions in vioialion of the
laws of the State, is a position that it was not
expected to find in the argument for the appel-
lees, manifesting so strong a regard for the
Legislature of that State. Those principles are
of universal obligation, from their conformity
to justice and conscience between the parties,
and to the will of the Legislature, which can
never be presumed to autTiori7.« what ia con-
trary to either; and, therefore, can never be
applied, except to promote probity and fair
dealing among men, and to aid the laws of tbe
land in advancing both.
The appellant. Edward Livingston, filed hia
bill of complaint in the District Court of the
United States for the Eastern District of Loui-
siana, against the appellee, Benjamin Story, to
set aside a conveyance made by him of certain
lots of land in the city of New Orleans, and to
be restored to the possession of said lots; alleg-
ing that the deed was given on a contract for
the loan of money. Although in the form of a
sale, it was in reality a pledge for the repay-
ment of the money loaned, and calling for an
account of the rents and profits of the property.
To this bill the defendant demurred and tbe
court sustained the demurrer and dismissed tha
complainant's bill, and the cause comes into
this court on appeal.
It will be enough for the purpose of dispos-
ing of the questions which have been made in
this ease to state only some of the leading facts
which are set forth and stated in the bill.
The hill alleges that on or about the 2oth of
July, 1S32, the defendant and John A. Fort
loaned to him, the complainant, the sum of
S22,fl30, to secure the payment of which, with
interest at the rate of eighteen per cent, per an-
num, he conveyed to them a lot of ground in
New Orleans, with the 'buildings and ['053
improvements thereon. That a counter letter
by the other parties, by which they stipulnted
to reconvey the property on certain conditiona.
That the lot was covered with fifteen stores, in
nlinlshed state, and the object of the loan
to complete them. The property is stated
to have been worth at tliat time IfiO.OfiO, and is
now worth double that sum. That the com-
plainant, soon after the said transaction, left
New Orleans, where he then resided, on a visit
to the State of New York, expecting that dur-
ing his absence some of the store* would hk>«
IdTmOBTOH T. StOKT.
«5S
h«ii flniab^, or Ifl ■ etatc to let. That on hia
Rtum, h« found that Starj and Fort bad paid
(8,000 to a contractor, who had (ailed to finish
tka bmldingt, the rent of each of the three
tmallert of which would be the interest of 910.-
0<O a year when finiahed. A further time was
nqueated for the payment of the monej, which
Stoiy ftod Fort would not agree to but upon
tondition that the propertj' ahoald be advertised
for tale on a certain day named; that the sum
diw thwitd be increased from (26,000 to $27,-
OOt, which Bum was made up by adding to the
t2i,000 the following fluma: (1,600 for interest
for the delay of four montha, at eighteen per
rat.; 9800 for auctloneer'B tommiaaion; 160
for advertising, and $200 arbitrarily added
without any designation; and that he, the com-
^■inant, ahould annul the counter letter given
to him by Stor^ and Fort. That the complain-
ant, being entirely at the mercy of the aaid
Stoiy and Fort, consented to these terms, in
hopes of being able to relieve himself before
the day fixed for the sale of hia property; but
being diseppointed, he was on that day, in
order to obtain a delay of sixty days, forced to
consent to sign a papsr, by which it was agreed
that the debt should be augmented to the sum
of 127,830. and that if the same was not paid
at the expiration of the aixty days, the property
sliould belong to the said Fort and Story with-
out any sale. The bill contains some other al-
legations of hardship and oppression, and al-
leges that tlie rents and proHts of the property
received by Fort and Story in the lifetime of
Fort, and by Story, since the death of Fort,
amount, at least, to S60.000. Ttia bill then
praya that the aaid Benjamin Btory may be
dted to appear to the bit] of complaint, and an-
aver the interrogatories therein propounded.
<B4*] The defendant, in the court below,
demurs to the whole bill, and for cause, showa
that the coiuplainant has not by his aaid bill
made such a case as entitles him, in a court of
equity in this State, to any discovery from this
defendant, touching the .•.attera contained in
tka said bill, or any or either of such matters;
nor to entitle the said complainant to any re-
lief ^ this court, touching any of the matters
therein complained of. The want of proper
parties ia also assigned for cause of demurrer.
The court below did not notice the want of
parties, but sustained the demurrer on the
other causes assigned.
The argument addressed to this court haa
been confined, principal'y, to the (general qucs-
tioii whether the District Court of the United
States in Louisiana has equity powers; and, if
■o, what ore ths modes of proceeding in the
exercise of such powers. The great earnest-
net* with which this ^wer has been denied at
th« bar to the District Court, may make it
ffvper briefly to state the origin of the District
Court of that State, and the jurisdiction con-
ferred upon it by the laws of the United States.
Wh«o the Constitution was adopted, and the
eonrta of the Union organiEed and their juris-
dietjoii distributed, Louisiana formed no part
of thia Union. It ia not reasonable, therefore,
to conclude that any phraseology haa been
adopted with a view to the pecutlar local ays-
Urn of laws in that State. She was admitted
into tht Union in the feu 1812} uid, br the
act of Congress passed for that purpose (4
Laws U. S. 402), it ia declared that there shall
be established a district court, to consist irt ono
judge, to be called the district judge, who
shall, in all things, have and exercise the same
jurisdiction and powers, which, by the act, the
title whereof ia in this section recited, wera
given to the district judge of the territory of
Orleans. By the act here referred to for the
jurisdietion and powers of the court (3 Laws
U. S. 608), a district court ia established, to
consist of one judge; and it declares that be
shall, in all things, have and exercise the same
Jurisdiction and powers which are by law given
to, or may be exercised by, the judge of the
Kentucky district. And, by the Judiciary Act
of 17S0 (2 Laws U. S. 60), it is declared that
the District Court in Kentucky shall, Iwaides
the jurisdiction given to other district courts,
have jurisdiction of all other causes, except Of
appeals 'and writs of error, hereinafter [*t55
made cognisable in a circuit court, and shall
proceed therein in the same manner as a circuit
court. And such manner of proceeding ia
Kinted out by the Process Act of 1702 (2 Laws
S. 299), which declares that the modes of
proceeding in suits of common law all all be the
same as are now used in the said courts respec-
tively, in pursuance ot the Act entitled, -'An
Act to regulate process in the courts of the
United States," viz., the same aa are now used
am.' allowed in the Supreme Courts of the re-
spective States (2 Laws U. S. 7!!), and in suit*
of equity, and those of admiralty and maritime
jurisdiction, according to the principlea, rules
and usages which belong to courts of equity
and courts of admiralty respectively, as con-
tradistinguished from courts of common law;
aubject to such alteration by the courts a* may
be thought expedient, etc.
From this view of the acts ot Congress, It
will be seen that prior to the Act of 1824, which
will be noticed hereafter, Louisiana, when she
came into the Union, had organized therein a
district court of the United Statea, having the
same jurisdiction, except as to appeals and
wrtta of error, as the circuit courts of the
United States in the other States. And that in
the modes of proceeding, that court was re-
quired to proceed according to tlie principlea,
rules and usages which belong to courts of
equity, as contradistinguished from courts of
common law. And whether there were or not,
in the several States, courts of equity proceed-
ing according to such principles and usages,
made no difference, according to the construc-
tion uniformly adopted by this court.
In the case of Robinson v. Campbell, 3 Wheat.
222, it is said that in some States in the Union,
no court of chancery exists to administer equi-
table relief, la some of the States, courts of
law recognize and enforce in suits at law, all
equitable claims and rights which a court of
equity would recognize and enforce; aud in
others all relief Is denied, and eiich equitable
claims and rights are to be considered as mere
nullities at law; and a construction, therefore,
that would adopt the State practice in all its
extent, would at once extinguish in such Statea
the exercise of equitable jurisdiction. That
the acts of Congress have distinguished bet veen
remedies at common law and in equity, and
isr
ut
8in>BEHB Coun or tbx Unhid Butu.
Uat
that to effectuate the purpoaei of the Legli-
•58*] Uture 'the remedies in the courti of the
United States are to be at coramon law or in
aquity, not aecurding to the practice of the
State courts, but according to the principles of
common law and equit;^, aa distinguiBhed and
defined in that country from which we derive
our knowledge of those principles. So, also, '~
the case of The United States v. Uowland,
Wheat. lU, the bill was filed on the equity side
of the Circuit Court of the United ijtatea, in
Mautacbusetts, in which State there was no
court of chancery; and in answer to this objec-
tion the court say: "As the courts of the Union
have a chancery jurisdiction in every State, and
the Judiciary Act confers tba same chancery
powers on all and gives the same rule of deci-
sion, its jurisdiction in Massachusetts must be
the same as in other States."
That Congress has the power to establish
drcuit and district courts in any and all the
States, and confer an them equitable judsdic-
tion in cases coming within the Constitution,
cannot admit of a doubt. It falls within the
ex Dress words of the Constitution. "The
judicial power of the United States shall be
vested in one Supreme Court, and in such
interior courts as the (Jongresa may, from time
to time, ordain and establish." Article 3. And
that the power to ordain and establish, carries
with it the power to prescribe and regulate the
modes of proceeding in such courts, admits of
aa little doubt. And, indeed, upon no other
Sound can the appellee, in this case, claim the
nefit of the Act of 1S24. Session Laws, GO.
The very title of that act is to regulate the
mode of practice in the courte of the United
States in the District of Louisiana, and it pro-
fesses no more than to regulate the practice.
It declares tbat the mode of proceeding in civil
causes, in the courts of the United States, that
now are, or hereafter mny be established in the
State of Louisiana, shall be conformable to the
laws directing the mode of proceeding in the
district courts of said State. And power is
given to the judge of the United States court
to make, by rule, such provisions as are neces-
sary to adapt the laws of procedure in the State
courts to the organization of the courts of the
United Slates, so aa to avoid any discrepancy,
if any such ijiould eiiat, betiveen such State
taws and the laws of the United SUtes. The
descriptive terms here used, civil actions, are
057*] broad enough to embrace cases at *Iaw
and in equity; and may very fairly be con-
strued, as used in contradistinction to criminal
causes. There are no restrictive or exp'anatory
words employed, limiting the terms to actions
at taw. They apply equally to cases in equity ;
and if there are any laws in LouisJAna direct
Ing the mode of procedure in equity causes
they are adopted by the Act of 1824, and will
govern the practice in the courts of the United
States. But tba question arises, what is to be
done if there are no equity State oourls, nor
Rny laws regulating toe practice in equity
cauaea. This question would seem to be an-
awered by the cases already referred to of
Robinson v. Campbell, and The United Statce
T. Howland. And also by the case of Parsons
*'. Bedford, 3 Peters, 444. In the latter case,
the court say that "the course of proceeding.
«nder tlw Bt«t« law at Louisiana, could not,
•«4
of tts«lf, hava ut intrinrie force or oUJgation
in the courts of the United Stales organized in
that Slate, except so far as the Act of 1624
adopted the State practice; tliat no absolute
repeal was intended of the antecedent modds of
proceeding authorized in the courts, of the Unit-
ed States, under the foime; acts of Coo;;ress."
If, then, aa has been asserted at the Irar,
there are no equitaiile claims or rights recog-
nized in that State, nor any courts of equity,
nor State laws regulating the practice in equity
causes, the law of 1824 does not apply to the
case DOW before this court; and tlie District
Court was bound to adopt the antecedent mode
of proceeding authorized under (he former acta
of Congress: otherwise, as is said in the case of
Robinson v. Campbell, the exercise of equitable
jurisdiction would be extinguished in that State;
because no equitable claims or rights which a
court of equity will enforce, are there recog-
nized. And there being no court of equity in
that State does not prevent the extrcise of
equity jurisdiction in tile courte of the United
States, according to the doctrine of this court
in the cose of The United Stales v. liowland
which arose in the State of MassnchuaettA
where there are no equity State courts. Wt
liave not been referred to any State law ol
Loiiiaiana, estahlialiing any State practice in
equity tnaes; nor to any rules adopleit by the
district judge in relation to such pinolice; and
we have some reason to conclude that no such
rules exist. For, in a record now before
*us from that court in the csac of [*65S
Sebastian Iliriart v. Jean GasBiea Itallon,' we
find a eet of rules purporting to have been
adopted by the court on the 14th of Dcccm-
lier, 1820, with the following caption: "Gen-
eral rules for the government of the United
.States Court in the Eastern District of Louisi-
ana in civil cases or suits at law, as contraJiH.
tinguished from admiralty and equity cases, and
criminal prosecutions; made in pursuance of the
seventeenth section of the Judiciary Act of 1780,
and of the first section of the Act of Congrr£»,
of the 2Glh of May, 1824, entitled, "An Act to
regulate the mode of practice in the courts of
the United States for the District of Louisiana."
And all other rules are annulled; end these rules
relate to suits at law and In admirntty only,
and not to suits in equity. From which ft is
reasonable to infer that the district judge did
not consider the Act of 1824 as extending to
«uits in equity; and if so, it is very certain that
:be demurrer ought to have been overruled.
'.'or, according to the ordinary mode of pro-
■eeding in courts of equity, the matters stated
in the bill are abundantly sufficient to entitle
Lhc complainant both to a discovery and relief;
md by the demurrer, everything well set forth,
and which was neceseary to support the demand
in the bill, must be taken to be true. 1 Vea.
Sen. 42B; 1 Ves. Jun. 2SH. And if any part
□r the bill is good, and entitles the complainant
either to relief or discovery, a demurrer to the
ivhole bill cannot be sustained. It is an eatab-
lishtd and universal rule of pleading in chan-
cery that a di'fendant may meet acomplainnnt'a
bill by several modes of defense. He may
demur, answer and plead to different parts of »
bill. So that if a bill for discovery and relief
l.Ant«, pai* ISO.
lafmoaron w. Smr.
muit ba overruled, ft John*. C3l ISfl; 1 Joiina.
Oft. 433.
But if w« tett thia bill bj any Un of Loui-
liuiB which has been shown at the bar, or that
hai fallen under our obscrvntion. the demurrer
cannot be sustained. The objection founded on
the alleged want of proper purties, because thr
■5I*] heir and residuary 'legatee of John A.
Fort ia not made a party, is not well founded.
The bill lUtei that in the year 1828, after, the
death of Fort, the defendant, Benjamin Story,
took the whole of the property, by some ar-
rangement with the heirs oi Fort; and that he
erer since has been, and is now, in the sole
possesBion thereof, and has received the rents
and proIitB of the tame. This fact the demuire.
admits; whereby Benjamin Storjr became thi
sole party in interest. —
The causes of demurrer assigned are general,
tbat the complainant has not, by his bill, made
such a case as entitles him, in a court of equity
in that State, either to a discovery or relief. In
the argriment at the bar, there has been no i
tempt to point out in what reapeet the bill
defective, either in form or substance as to the
discovery, if it is to be governed bj the ordi-
nary rules of pleading in a court of chancery.
And if the objection rests upon the want of the'
right in the complainant to call upon the de-
fendant for any discovery at all, the objection
Is not sustained even by the laws of Louisiana.
Bui, on the contrary, it is expressly provided by
a law of that SUte that when any plaintiff
shall wish to obtain a discovery from the de-
fendant, on oath, sucb plaintiff may insert in
bis petition, pertinent interrogatories, and may
Mil upon the defendant to answer them on
oath; and that the defendant shall distinctly
answer to such interrogatories, provided they
do not tend to charge Eim with any crime or
offense against any penal lawj neither of which
has been pretended in this case. 2 Martin's
Dig. 158.
Nor has it been attempted to point out in
what respect the bill of complaint is defective,
either fn form or substance, as to the matters
of relief prayed. In this respect, also, the bill,
according to the ordinary course of proceeding
in a court of chancery, is unobjectionable; and.
indeed, would be amply sulEcient in the State
courts, under the law of l/)uisiana, which de-
clarea that all suits in the Supreme Court shall
he commenced by petition addressed to the
court, which shall state the names of the par-
ties, their places of residence, and the cause of
action, with the necessary circumstances of
places and dates; and shall conclude with a
prayer for relief adapted to the circumstances
of the case. 2 Martin's Dig. 148. These are
<0a*] the 'essential requisites in an ordinary
bill in chancery. It can certainly not be pre-
tended that It it any objection in the case be-
fore US, that the bill filed is called a IhU of com-
plaint, instead of a petition.
The sufficiency of the objections, therefore,
must turn upon the general question whether
the District Court of Louisiana has, by the
Cmttitution and laws of the United States, the
same equity powwa M» • circuit court of the
I L. ed.
United States haa In the other States of the
Union; and we think it haa been already shown
tiiat it hasi but that, according to the pro-
visions of the Act of 1B24, the mode of proceed-
ing in the exercise of such powers must be con-
formable to the laws directing the mode of
practice In the district courts of that State, If
any such exist; and according to such rules M
may be established by the judge of the District
Court under the authority of the Act of 1824.
And if no such laws and rules applicable to the
case exist in the State of Louisiana, then sud)
equity powers must be exercised according to
the principles, rules end usages of the circuit
courts of the United States, as regulated and
prescribed for the circuit courts in the other
btstea of the Union.
The decree of the Circuit Court must, sccord-
ingly, be reversed, and the cause sent back for
furtber proceedings.
Mr. Justice M'LcaB.
The inferior courts of the United States can
only exercise jurisdiction under the laws of
Congress; and a genera! law giving equity juris-
diclion will apply as well to the courts of the
United States in Louisiana as in any other
State in the Union. The same may be said as to
a general law regulating the exercise of a com-
mon law jurisdiction.
But, as it regards the court* of the United
States in Louisiana, Congress have made an ex-
ception from the general law, by the Act of
1824. This act provides, "that the mode of
proceeding in civil causes In the courts of the
United States, that now are, or hereafter may
he established in the State of fyjuisiana, shall
informable to the laws directing the mode
of practice in the Uistrict Court of the aaid
State; provided, that the Judge of any such
irt of the United States may alter the times
lited or allowed for different proceedings in
the State 'courts, and make, by rule, [*S6t
such other provisions as may be necessary to
adept the said laws of procedure to the organ-
ization of such court of the United States;
and to avoid any discrepancy, if any such
should exist, between such State laws and the
laws of the United States.
The proceedings in the State courts of Loul-
liana are conformable to the dvil law; and the
inme course of proceeding under the above
law has been adopted in the District Court of
the United States in that State; and by the
judgment of Ihis court, this cause of practice
has been sustained.
The above act applies to all dvil causes, and,
if course, embraces all causes both at common
law and in chancery; and its piovisions apply
aa forcibly to on equitable jurisdiction, as to
one exercised in acconlsme with the rulea of
common law. The peculiar mode of
procedure under the Louisiana practice pre-
serves, substantially, the same forma in af-
fording a remedy in sll cases. And whether
the ground of action be in the principles of the
common law, or in the exerdse of an equitable
jurisiiifinn, by this mode of proceeding an
edeqi.ute remerly is piven.
IiL "An Act fortlii'r to regulate process in
the courts of the United States," passed in
1828, and which provides for "proceedings in
BupBBuK Oomr or m Uidrm Statu.
equity, according to the principles, rule* uid
utag^s which belong to courta of equity," •'
s provisionB shall not bei
ISM I
ui declared that il
t of tlia United SUt«« i
tended to any c
LouLBiaiiB.
No Btronger legiBlative provisioD could have
tieen adopted to show that Congress did not
consider that the " principles, rules and usages
which belong to courts of equity,"
force in that State. And this view wt
opinion, correct, as the law of 1824 had made
the federal court pracUce in Louisiana,
eeption to the ^neral law on the Buhje
If the prinripl(g, ruEes and UBSges, which
belong to tourts of equity, are to be regarded
in tlie District Court of Louisiane, the same
principle must adopt, in the same court, tlip
rulea an.f usages which belong to courts of
common law. l!ut the latlev Imve been abro-
gated by the Act of 1624, ngreeably to the de-
cision of this court; and it appears to me this
dcoinion must equally apply to the former. If
662*] the act of 1S24 be regarded, *it must
regulate the mode of proi?eeding in all civil
cnuaea, as eon tradistinguia lied from crimi
This cnuHe came on to be heard on the tr
script of the rword from the District Court
the United States for the Eastern DLslrLct of
Louisiana, and was argued by counsel; on
sideration wiicrcof, it is ordered and dec
by this court that the decree of the said Dis-
trict Court in this cause be, and the
hereby reversed; and that this cause be, and '
the same is hereby remanded to the said Dis- ,
trlct Court for farther proceedings to be had i
therein, according to law and jiie ' ,
conformity to the opinion and decree of this
Abran Janes nuut hav* Induced bin .. ..„_.
ths same to record ; and that (he copj of that mM
power of atlorncj. tjie ddc offereU to »ildence. bad
lu»n -ompared with the record of tbt orlilDd mads
iself. nodjs ■ true copj. Upon IbSi evldeacc.
lODK slni-e dead, and II
I the other witnc
Qls Is the „ ... „
e produclloQ of them, without a
r proof of their death, whe
1 Is before the c
'„ra."
s of ll
mf.
custodj' of (he proper parijr clainilBg linder" it, 'ir
CDlltJed to Its custtid;.
The cMe of rattersoq v. Winn, S Peters 233,
The rule la admitted that a eopr of a copT la bdI
■Tidencc. This rule proper!; applies (o rasn
where the mpj ts taken frooi a ciiiij, the oHclusI
betnc itlll In eii<''>""-'' ••"« .•.in.i.ii .;* t.„i„,. .
psred H'Kh It, t<
(he orleinal ; or
a biqh evlden
I. tor then
'B Of a-
1 record o
original, o
mrd In li
y of ■
ecnrdea ll
this" Sst
RlclimoBd
J, nuu lue jHuu ID coniroTerHj was [•CfM
alillo Count;.) Held, that thla Is not the
B mere copy of ■ copj verlfled sa auch, but
■ ' -' ' a a true
orlfc-lnal.
I' of a
OP of ihe luieii(''oP*th.
WILLIAM PATTERSON.
Secondary evidence, proof of loss to admit —
copy of copy as evidence — grant »oid in part
may be good in part.
e o( Patterson
' part of the ]
r. Jenlia, 2 I'eten,
dlatlBct
lln Counly. C
Jones. BOO coi
The original power
;e 11 Wheat, 3S0 ; 6
But «SR produced In
cr of Btlornej, dated
B Smith. Bulborlilae
I In the piis.^nce o(
> Introduce sec-
The deputfderli of the Rlfhinoud County
. had recorded t
[l.V'.'i
'iUh
t documrots liT sub-
States for the District of Georgia.
In February, 1820, an action of ejectment
as instituted in the Circuit Court bv the lea-
see of William PatterBon against Eliaha Winn
and others, to recover a tract of land in the
County of Franklin, in the Slate of Georgia.
The case has been twice before this court on «
writ of error. 11 Wheat. 380; 6 Cond. Rcp.SoS,
and 8 Peters, 233. Many of the material facts
in the case will he found in the reports re-
ferred to.
At November Term, 1833, of the Circuit
Court, in pursuance of the mandate of thia
court, a new trial of the case tool; place; and
the plHJntiff gave in evidence a grant from the
Mlate of Georgia to Basil Jones for 7,800 tcrea
of land, including the lands in controversy in
this suit, dated 24th May, 1787, with a plot of
the survey of the said land annexed; a copy of
a power of attorney from Basil Jones to Thom-
as Smith, Jun.. purporting to be dated the 6th
of August, 1703, authorizing Smith, inter a1i&.
to sell and convey the tract of 7.800 acrea;
which power purported to be signed nnd sea'^
P«t«rs •.
UJf
WufR n AL, V. PtntkaoH.
h the pfBBwiea of Abrnn Jones, J. P., and
Itemai Harwood, Jim.; and the copy was eer-
tlBtd to be K true copy from the records of
RkhmoDd Coanty, Georgia, and recoi'ded there
M the nth Ja)7, 1796; and to account for the
tarn of the original power of attorney on which
tke copy was oSerea, and of the lue of due diti-
~"M and search tor the same, the plaintiff
1 tke depositions of Witliam Patterson and
neeptions. The defendant objected to the ei
f IB*] dence, and 'the court overruled the c
■at excepted, and the court sealed a bill of
siMptlons. In the further progreas of the case
further evidence was offered, and certain in-
structions thereon asked of the court, which
were refused; and the refusal of the court to
lire sncb instructions was the aubject of an-
stber exception.
The jury, under the charge of the eourt,
tomd a verdict for the plaintiff, npon which
judgment was entered; and the defendants
pnteeuted this writ of error.
The bills of exceptions were aa followst
nw plaintiff, to maintain the Issue on hia
part, pve in evidence a copy of a grant from
the Btat« of Georgia to Basil Jones for seven
Cbousand three hundred acres, bearing date on
tU 84th day of Ma};, 1787, together with a plat
•f mrTey of the said Und thereto annexed (a
tnpf of which plat and grant was in the rec-
wl)j Knd further offered to give in evidence to
the Jury a paper writing, purporting to be a
BOff of a power of attorney from ^ail Jonea
to Tlicmae Rmyth, Jun., execut«d on the 6th
day of August, 1793, by Basil Jones, in the pres-
*BM of Abram Jones, J. P., and Thomas Har-
wood, on which copy there was a certificate
nndsr the official teal of John H. Mann, clerk
of the Superior Court of Richmond County,
itating that it was a true copy from the record
in his office, entered on book, etc., on the 11th
Jnly, 179S. A certificate from John H. Mont-
fomery, one of the judges of the Superior
Oenrt, waa annexed, stating that the officer who
certified the copy was the clerk of the Superior
Oaort; that his signature was entitled to full
faith and credit, and that the attestation was
ta due form. The power of attorney author-
lud f<
ranted to Basil Jones, part of which Is the
nd for which this ejectment was brought.
Tv account for the loss of the original power
of attorney, the plaintiff below produced his
affidavit, stating his belief that the said original
grant to Basil Jones had been tost or destroyed
—this kfBdavit waa made on the 23d of July,
IB33; alao the deposition of Andrew Fleming,
stating numerous and particular acts which he
had perfonned to discover the said originals.
Ms'] This depodtion set forth diligent exam-
inationa for tho lost p;;pcr9 In various places,
aad I^ inquiries of all such persons where and
with whom the said papers might probably
h*f« be«B found, if they had not been alto
gather Io«t or destroyed.
Alao the answers to interroeatories of Anns
Ibri* Snyth, the widow of Thomas Smyth,
relatlTP to the lost papers, and stating that she
ff lb ad.
had not been able t« And them among the
papers of her deceased husband, nor hsS she
ei'sr sees tbem, although she had the custody
of all the papers left by her deceased husband.
And further to account for the loss of the
said original power, Bichard H. Wilde, Esq.,
waa examined on interTosatories propounded to
him, who stated that be bad made diligent
search for the said power of attorney, with tlw
asaistance of the clerk of the clerk's office of
the Superior Court of Richmond County, with-
out success. That he bad applied to the widm«
of Basil Jones for the paper and for the original
grant, who was unable to Gnd the aame; and
had advertised for the same for soms months in
two -newepnpors in Georgia; he had inquired
for the same at the office of the Secretary of
Stale at Milledgevitle, and had searched the
clerk's office at Columbia, where Basil Jones
formerly resided ; and also had made numerous
other searches and inquiries. A copy of the ad-
vertisement for the lost papers was inserted tal
the examination.
The testimony of John H. Wilde, Esq., waa
also introduced, who proved that by reputation
Abram Jones waa dead long since; that be
eompared the copy of the power of attorney
offered in evidence with the record in the
clerk's office of Richmond StLperior Court, and
tt is a true copy. William Patterson, the plain-
tiff in the Circuit Court, he believed bad never
been in Georgia.
William Robertson deposed that he was dep-
uty-cU-rk, and acted aa such, of Richmond
County, in the year 17M, and clerk of the said
court in 1765, and continued in that office till
1808 or 1800; that he was well acquainted with
fterwarda- i'Ot deponent further states
that the record of a power of attorney from B.
Jones to Thonias Smyth, Jun., made by him-
self while clerk *of that eourt, is a copy [*eeT
of an original pawer of attorney which be be-
lieves to have been genuine, for that the official
signature of Abram Jones must have induced
him to commit the same to record; and that
the copy of said power of attorney transmitted
with deponent's depositions has been compared
by himself with the record of the original
made by himself in Richmond County, and is
in^'t ...
evidence, which was oppoaed by the counsel for
the defendants, as not admissible evidence.
The counsel for the lessor of the plaintiff,
farther to prove the original power ot attorney
was msde and executed, gave in evidence a
deed executed by Thomas Smyth, Jun., alleg-
ing himself to be the attorney in fact of Basil
Jonea, dated IBth November, 17G3, which con-
veyed to William Patterson, the lessor of the
filaintiff, seven thousand three hundred acres of
and in Franklin County, originally granted t*
)i1 Jotie.«, May 24th, 1787; which deed alto
veyed, or purported to convey, four other
tracts of land situate in Franklin County; and
roiitsined the following recitali "Whereas,
the said Basil Jones, by a certain writing or
letter of attorney, dated the 6th day of August
Inst past, did empower and authorise the said
attorney (Thomas Smyth, Jun.,) in hia, the said
BuPiBiiE CovKT or lUK UniTiD Staim.
Basil Jonet'i, nune, to m11 and diBpose of five
Mrtafn tracts or parcels of land hereinafter
mentioned, situate in Franklin Count; and
Btate of Georgia aforesaid." And the plaintiff
offered in evidence proof that Abram Jones,
who signed the original power of at tome j,
was, at the time he signed the same, a justice
of the peace of the County of Richmond j which
was admitted by the defendants' counsel.
The ptaJntifTi counsel then insisted that the
copy of the power of attorney was admissible
io evidence, and should go to the jury, which
wa* opposed by the defendants' counsel; but
the court admitted the same, and the counsel for
the defendants excepted to the said admission.
The plaintiff also offered three witnesses be-
fore the jury to prove the identity of the land
In dispute, with a plat of tbe same given in evi-
dence, and that tne defendants were in poe-
•essfon of the part for which this suit was
brought, and also the location of the land;
which witnesses also proved that part of the
• 68*] 'said land which lay on the south and
west of the said Appalacbee River, was not, at
the time of issuing the said grant, situate in the
County of Franklin, as the grant purported it
to be, but was without the then County of
Franklin, and beyond the then temporary
boundary line of the State of Georgia. Where-
upon the attorney for the said defendants
prayed tbe said justices to instruct the said
Jarj that if the jury believed that Busil Jones,
the deputy -surveyor and grantee, under whnra
the lessor of the plaintiff claims, by designating
the stream marked in the original plat as "the
branch of the south fork of the Oconee River,
Instead of the south fork of the Oconee River,
and by ststing that the land was situate in the
County of Franklin, when a large part of it lay
without the County of Franklin, and without
the temporary boundary iine of the State of
Qeorgis, practiced a deception upon the gov-
ernor of the State, and thereby induced him to
issue the grant; that such grant is fraudulent
and void, and cannot entitle the plaintllT to re-
cover;" which instruction the said justices re-
fused to give to the said jurors. And the said
attorney further prayed the said court to in-
stmet the said jurors that a grant of land is an
entirety, and that a grant void in part is void
for the whole; which instruction the said
justices also refused to give to the said jurors.
And they further prayed the said court to in-
struct the said jurors that a concealment or
misrepresentation of material facts, calculated
to deceive the governor issuing the gront.
renders the grant null and void in law; wUioh
instruction the said justices also refused to give
to ths said jurors, and the jurors gave their ver-
dict against the said defendants, upon the issue
aforesaid.
The case was argued by Mr. Seaborn Jonea
for the plaintiffs, and by Mr. Wilde and Mr.
Berrien for the defendant.
Mr. Jonea contended that the C3reuit Court
1. Ib permitting the defendant In error to
read in evidence to the jury a paper purporting
to be a copy of a power of attorney from Basil
Jones to Thomas Smyth. Jun., for want of
•uflicient legal proof of the genuineness, ex-
istence and execution of the original, or of the
correetneM of aaid paper, offered M ft eop^.
■£. In permitting the defendant In [■•••
error to read in evidence to the jury a copy of a
grant to Basil Jones, wtiich grant, and the aur-
vey on which it was founded, were contrmry to
the taws of Georgia, and therefore null and void.
3. In refusing to instruct the jury that tha
■aid grant and the survey on which it Wka
founded, were contrary to the laws of Georgia,
and were therefore null and void.
To show that the writing was not admissible
in evidence, until the absence of all the wit-
nesses was accounted for, he cited, 1 Starkie'i
Ev., 340, 342, 345; 6 Cranch, 13; Ig Johna
Rep., 60; 2 Serg. & Rawle, 44; 1 Overton, 1B7;
1 Dallas's Rep.. 123; Peake's Ev., 140, 152.
There had been no possession to warrant tbe
admission of the copy of the power of attorney
as an ancient deed. The rule requires thirty
years' possession under the deed. No actual
possession of the land has been shown, and con-
structive possession will not do. No posset-
sion can be based upon a presumption. Poa-
session or constructive possession cannot be
presumed, and then from that, the execution of
the deed be presumed. The actual accompany-
ing possession is what gives credit to the pre-
sumption of tbe execution of a deed. Cited.
3 Johns., 295; 10 Johns., 476; 0 Johns., 169;
Buller's Nisi Prius, 234.
But the rule which admits ancient deeds doe*
not apply to a copy. Peake's Ev. 102, 141,
107. There must be proof of the due execu-
tion of the original. 1 SUrkie'a Ev. 164; I
Johns. Cases, 402, 409.
The record of the recording an instrument ta
no evidence unless t!ie deed was recorded by
due authority. I Atk. 264; 6 BJnn. 274; 1
Marsh. Rep. 206.
The deed was not recorded in the proper
county, as no part of the land lay in the county
where the deed wa* recorded. There is no law
of Georgia which authorizes the recording of
powers of attorney; but the courts have con-
sidered powers of attorney as standing on the
same footing as deeds.
The enrollment of a deed is no evidence of
the contents of a deed unless made by the au-
thoritv of law. Cited, 1 Rtarkie's Ev. 386,
note; Buller's Nisi Prius, 255; 1 Har. A. Johna.
527; 1 Taylor's Rep. 25; 2 Wash. Rep. 280;
1 Peters. 88.
The evidence offered was but a copy of >
copy. As to copies *of records being ['(TO
evidence, cited, 1 Philips's Ev. 2])1, 300, BOZ;
3 Day's Rep. 309; Pcake's Ev. 58; 3 Dall.
05; 4 Munf. 310.
There waa no evidence whatever of the ab-
sence of the witnesses to the power of attorney.
Cited, 6 Peters, 242.
The grant to Raail Jones was absolutely void.
having been obtained by practicing a fraud od
the government of Georgia. The evidence ttf
the fraud should have been admitted. Cited,
I Wheat. 116, 165; Indian Treaty of 1783,
iind Act of the Legislature of Georgia of 1784;
Act of 1780; Patterson v. Winn, 11 Wheat.
380; 6 Cond. Rep. 355.
There has been a legislative construction »f
the Treaty nf 1T84, showing what the boundary
line wss. This is referred to for tbe purpoM of
showing that tiie grant was void in p«H, th*
part of the laf<d being within the Indian lia««i
and WM, therefore, void altogether.
Pewn •.
A'lMIl Bt Ak *. PatteUoK.
Ttt ilMw that ftU gnnU of land within the
Inditui bouudftry were absolutely void, and
that the sui^eTB imder such grants were void,
dtcd. Prince'* Dig. of the law* of Georgia, ZB8,
ZTS, 2T8, 304, 363; Walker's Dig. 363; Polk's
Lmmb t. Weodail, 9 Cnuwli, SB; 3 Cond. Rep.
186.
It ia not intended to say that the Legislature
codld declare a patent for lands void, if granted
tor lands within the State, and which were
■ubjeet to grants. The law declares tbe patent
for land eo situated shall not be given in evi-
dence. The Legislature have declared all
pant* within the Indian boundarj void.
Pnooa's Dig. 868, 276. Bssil Jones was but
a deputy- Borveyor, and had no antboritj to
Mkn th« survey. The evidence shows he acted
tiaiiduIentiT, as he well knew the actual bound'
•ty of the Indian territorj, and koowingly viO'
kted the lawa of Georgia, forludding surveys of
lands not subject to grant. He acted in vio-
lation of hia official oath.
A deed which is void in part is altogether
nid. 14 Johns. 458. This point was not
decided by the court in the case of Patterson v.
Jcaks, nor was the question of the admissitMlity
of tbc power of attorney decided ia that ease.
lb. jenea laid before the court eertilicates
from the judges of the ivurta of Georgia, and
opinions of the judges of those courts as to the
ewtftruction of the registry acts of that State;
•31*] 'which certificates, he contended, sus
tained the views he had presented of those
lawa.
Ur. Wilde and Hr. Benicn, for the defend-
ant in error, argued that there was but oni
print in this caae onen for ar^ment, as all the
Other qnastions haa been decided by the court
in the former cases. The defendants in the court
below arc shown by the record to have-'all re'
sided within the limits of the County of Frank'
Hn, and all the landa in controversy in this suit
are within that county.
The only pcnnt in the ease Is, therefore, that
which relate* to tbe admissibility of the powei
dene* to go to tbe juryT
The rules of law on this question relate either,
1. To the proof of the esecutioa of the original
■stnupent. S. To the proof necessary to dis-
Mue with the production of an original. 3.
To the degree of secondary proof which is
aeceasaiT when the production of the original
is diapensed with. As the evidence in this case
■as not the original power, tbe question is,
vhether evidence sufficient to authorize the in-
trodnction of the copy was given. It is con-
teaded that this proof was eiven in the eHdence
of the clerk who recorded toe power, and which
Is set forth at large in the bill of eiceptima.
A eopy may be Terified by an officer duly
atthorised for thkt purpoee, or by the oath o{
an individual who mm oompared it with the
neord nntboriEed by law; and therefore as the
evtdenee of a private individual, not an officer,
the leatlmony of the person wba made the copy
«■■ anfficient.
It U not a copy of • copy. The witness was in
foawsaioD of the original, and from that made
the «my in the record, and he swears that the
tm u » genuine eopy of the original. The
tnitmem In that the copy oa the record and the
• b ad.
cop^ offered in evidence, were both gennliM
copies of the original.
The counsel then went Into a particular ex-
amination of the evidenra, and contemlej that
it fully sustained the right of the plaintiff he-
low, on every principle of law, to give tbe
eofiy of the power of attorney in evidence. The
strictest rules of law were complied with. 1
SUrk. Ev. 341, 343.
•The handwriting of the other wit- ["aia
ness to the pow^r uf ntlomey could not have
been proved, as idc ciii<ii[ial was lost.
Thirty years IihJ cliipsrd since the execution
of the power ami of the deed made milcr It,
and this authonin the presumption of the due
execution of the instniincnt. Possession must
accompany the deed, but an actual pedis pos-
sessio is not rtMiuired, and tliis rule is not appli-
cable to a pou'cr of attorney.
In this case the possession was in accordance
with the deed, and there whs no evidcnic giv-
en to show that the defendants were other tLan
mere intruders. Cited, S Cranch, iZO; 4 Wheat.
222; 6 Peteie, 489. Eviilenee of loss of piipera,
and secondary proof of tlieir contents is ad-
dressed to the court. 6 Johns. 19S. In
Georgia, if proof of loss of an original paper is
given by the death of the party, a copy will be
admitted or proof of its contents. Cited, 5
Peters, 242^ 2 Serg. & Rswle, it; 4 Bos. &.
Pull. 260; 2 Peters, ZiO; 3 Haywurd, SB, 123.
If the original power of attorney were be-
fore this court, the acknowledgment of it be-
fore a Justice of the peace, would, by the law
of Georgia of 1786, make it, per se, evidence.
Ur. Justice Stoiy delivered the opinion of
the court:
Tikis is a writ of error to the Circuit Court
of the District of Georgia. The cause, which is
an ejectment, has been twice before this court,
and the decisions then had will be found re-
ported in II Wheat. Rep. 380, and 5 Peters's
Hep. 233; to which wa may therefore refer,
as containing a statement uf many of the ma-
terial facts.
At the new trial had in November Term,
1833, in pursuance of the niandate of this court.
The plaintiff, to maintain the issue on his part,
gave in evidence a copy of a grant from the
State of Georgia to Basil Jones, for seven
thousand three hundred acres, including the
lands in controversy, dated tbe 24th of May,
1787, with a plat of survey thereto annexed.
He then offered a copy of a power of attorney
from Basil Jones to Thomas t'mytb, Jun., pur-
porting to be dated the 6th of August, 17D3,
and to authoriu Smyth, among other things,
to sell and convey tbe tract of seven thousand
three hundred acres, so granted, which power
purported to be signed and sealed in the pres-
ence *of "Abram Jones, J. P., and (*67S
Thomas Harwood, Jun.;" and the copy was
certified to be a true copy from the records of
Itiehroond County, Georgia, and recorded
therein on the 11th day of July, 17DS. And to
account for the loss of the original power of at.
tomey, of which the copy was offtred, and of
the use of due dii^ence and search to find the
same, the plaintiff read the affidavit of William
Patterson, the lessor of the plaintiff, which in
substance stated that he bad not in his poKses-
aion, power or custody, the origiual grant; and
tet
«TS
SuPEEua Court of the Umted Stuis.
tlwt be Tsrnr belieTed titi oiiglnftl power
■ttomcj- and grant have been lost or destro;
Ha also read, for the saiae purpose, tliR d
oaition of Andrew Fleming, which e(ntcd
substance the seaiohes uinde hy him ami
TbomBg Pmytli's pnpurs, and the information
received by uim, Wding to the concluaion that
the SBine )i.'.< been lust or destroyed. Also, the
deposition of Mrs. &'myth, the widow of Thoni
aeveral searches made hy him for the original
power, in the office of the clerk of Ki^hmond
County, nnd in other plnces, and an sppli
tion to the wife of Basil .Tones, and to the i
of ThoiTiEU Smyth for the like purpose: and
advertisement in two Georgia newspapers, for
information respecting the same, all of which
proved [iiefTectiial. The same witness also
stated that Abram Jones, the supposed sub-
scribing witness, was, bj public reputation,
long since dead. It was admitted that Abram
Junes wo^, at the time of the supposed execu-
tion of the power, a justice of the peace.
The p'aintilT also read in evidence the depo-
sition of William Robertson, who stated that
be was deputy-clerk of the Court of Richmond
County in 1704. and clerk in 17SG, and contin-
ued in office until 1S0S or 1809| that he was well
ftconainted with Abram Jones, and bis hand-
writing, during the years 1793, 1794, and 1795,
and before and afterwards. That the record
ot the power of attorney from B. Jones to
Thomas Smyth, Jun., made by himself while
elerk of the court, is a copy of an oripnal
power of attorney, which he believes to have
been genuine, for that the official signature of
Abram Jones must have induced him to com-
mit the same to record; and that the copy of
the said power of attorney transmitted with the
deponent's depositions (the copy before the
87-1*] court), *had been compared with the
record of the original made by himself in Rich-
mond County, and is » true copy.
The plaintiff also gave in evidence a deed
executed by Thomas l^myth, Jun., as attorney
in fact of'Bosil Jones, dated on the 18th of
November, 1703, conveying, as such attorney,
to William Patterson, the lessor of the plaintiff,
certain tracts of land, and among others, the
tract of seven thousand three hundred atves;
which deed contained a recital that Basil Jones,
by his certain writing or letter of attorney,
dated the Btb of August, 1793. did empower
ftnd authorize his said attorney in his, Basil
Jones's name, to sell and dispose of the tracts
mentioned in the deed; which deed was recorded
in the records of Franklin County, on the 26th
of July, 1795.
Upon this evidence the p'aintifT offered the
copy as evidence in the cause. It waa objected
to by the defendants, and the objection was
overruled by the court, and the copy was ad-
mitted in evidence to the jury. And this rul-
ing; of the court constitutes the first ground in
the bill of exceptions, upon which the defend-
nnts now rely for a reversal of the judgment of
the Qrcuit Court, which was ia favor of the
plaintifT.
In the consideration ol the admissibility of
the copy, two questions are involved. In the
first place, whether there was sufficient evi-
ilcnee of the genuincnesa and due
the original power of attorney. In the vUk
place, it its genuineness and due execution an
established, whether the cony was, by the
principles of law under all tlie circumatonces,
admissible proof.
In regard to the first question, we are to con-
sider that the original instrument (supposing it
to be genuine) is of an ancient date, having
been eiteciited in the year 1703, and recorded
in the public records as a genuine instrument
in 17SG: so that at the time of the trial it was
forty ^ears of age. Abram Jones, one of the
subscribing witnesses, was long since dead;
and it does not appear that Thomas Harwood,
the other subscribing witness, was alive, or that
the plaintiff had any means of identifying him
or tracing out his residence. The original
power did not exist, so that the plaintiff could
not, by an inspection of his handwriting, ascer-
tain who he was or where he lived.
After the lapse of thirty years from the time
of the execution of a deed the witnesses are
presumed to be deadj and this is *the ['BIS
common ground, in such cases, for dispensing
with the production of them, without any
search for them, or proof of their death, when
the original deed is before the court for proof.
It is a rule adopted for common convenience,
and founded upon the great difficulty of prov-
ing the due execution of • deed after an in-
terval of many years. And the rule applies
not only to grants of land, but to all otb<-r
deeds, where the instrument comes from the
custody of the proper party claiming under it,
or entitled to its custody. I Phillips on Evi-
dence, eh. B, sec. 2. p. 406, and coaea there
cited; 1 Starkie on Evidence, part 2, sec. 143,
144, 145, and cases there cited. If, therefore,
the original power were now produced from
the custody of the plaintiff, it would not be
necessary to establish its due execution by the
production of the subscribing witnesses. It
would be sufficient to establish it by other
proofs. This view of the matter disposes of
that part of the argument which denies that
the proof of the original instrument can be
made without the production of the subscrib-
ing witness. Harwood, or accounting for his
non-production.
Then what is the proof of the genuineaesa
and due execution of the original power of at-
torney T Mr. Robertson swcare that he was ac-
quainted with the handwriting of Abram Jonas
(one of the subscribing witnesses), at the time
of its date, as well as before and afterwards;
that he recorded it in the county records; that
the record is a copy of an original power of
attorney, which he believes to have been genu-
ine, for that the official signature of Abnm
Jones must have induced him to commit tba
■ to record. Now. what is to be under-
stood by the "official signature" in the lan-
guage of the witnessi Clearly, his genoins
handwriting, and the annexation of bis official
title, J. P., that is. Justice of the Peace, estab-
lishing that he verifies the instrument, not
merely as an individual, but as a public officer.
It is impossible that it could be hia official oig-
nature unless it was also a genuine, and not
forged signature of his name. So that here we
have from Mr. Robertson direct proof of hia
belief of the genuineness of the signature of *
ibaeribing witneos, from hia know'edge of hia
Pe(«ra •.
l&3ft
WlNH n U. T. pATmsoKt
«7»
h«ad writing, Mi ex«ini nation of the ariginal
iiutruineiit, and hi« having recorded it upon
the faith of auch belief. It seems to us per-
leetly clear, upon the received principlea of the
BIB'] *l&n of evidence, that this waa sufficient
prima facie proof of the gennlneness and due
sxecution of the original power, to be left to
the jury for their cousiderstion of its weight
Mtd effect.
The next qnestion is, whether sufficient
ground was laid in the evidence to establish the
loM or destruction of the original power, so as
to let in secondary proof of its contents. We
think there was, considering the lapse of time
since the original transaction, tha diligence
which bad been used, the BearcheB which had
been made, and the other attendant circum-
stances stated in the depasitioni, to fortify the
presumption of such toss or destruction. This
was the view of this point taken by this court
in the former decision, in 5 Peters, 233, 242,
though it was not then so directly before us;
and havin.!; hesrd the new argument addressed
to us on the prei^pnt occasion, we see no reason
hw departing from our former opinion.
The remaining question, then, is whether the
copy DOW pri^uced was proper secondary
proof, entitled by law to be admitted in evi-
dence. The argument is that it is a copy of a
:;opj, and so not admissible; and that the origi-
nal record might have been produced in evi-
dence. By the laws of Georgia [Act of 1785),
deeds of bargnin and sale of lands are required
to be recorded in the county where the landa
lia. IMnce's Dig. 112. Powers of attorney
to convey lands are not required by law to l>c
recorded in the same county, though there seems
to be a common practice so to do. The Act of
17S5 provides that all bonds, specialties, letters
of attorney and powers in writing, the execu-
tion whereof sbnll be proved by one or more of
tha witnesses thereto, before certain mngis-
tratea of either of the United States, where the
Heme were executed, snd duly certified in the
manner stated in the act, shall be sulllcient evi-
dence to the court and Jury of the due execu-
tion thereof. Prince's Dig. 113. The pres-
ent power was not recorded In the County of
Franklin where the lands He, but in Richmond
County; and, therefore, a cop^ from the record
is not strictly admissible in evidence, as it would
have been if powers of attorney were by law to
he recorded in the county where the lands lie,
and the present power had been so duly record-
ed. It is certainly a common practice to pro-
duce, in the custody of the clerk, under a
• 77") subpffina 'duces tecum, the original
records of deeds duly recorded. But in point
of law ft copy from such record is admissible
in evidence, upon the ground stated In Lynch
T. aark. 3 Salk. Rep. 154, that where an
original document of a public nature would he
evidence if produced, an immediate sworn copy
thweof is admissible in evidence; for as all per-
mma have ■ right to the evidence wliich docu-
' > of a public nature afford, they might
~'~e be required to be exhibited at differ-
m» wiacrs at the same time- See Mr. Leach's
Mte to II Mod. Rep. 134; Birt v. Barlow, 1
Don^. Rep. 171 ; 1 Starfcie gn Evidence, sec. 36,
17. U, therefore, the tscor4 itself would be
nUence of a recorded deed, a duly attested
ean Uernof would ajao be undefca. Tl^ pres-
eat copy does not, however <u is admitted),
fall within the reach of this nile. But thequea-
tlon does arise, whether the defendant can in-
sist upon the production of the record books of
the County of Richmond, in court, in this case;
KB higher and more authentic evidence of the
power of attorney not properly recorded there,
to the exclusion of any other copy duly estab-
lished in proof. We think be cannot. It Is
not required by any rule of evidence with wliich
we are acquainted.
We admit that the rule that a copy of a copy
Is not admissible evidence, is correct In itself,
when properly understood and limited to its
true sense. The rule properly applies to cases
where the copy is taken from a copy, the orig-
Inal being still in existence and copable of be-
ing compared with it; for then it is a second re-
move from the original: or where it is a copy of
a copy of a record, the record being in existence,
by law deemed as high evidence as the original,
for then it is also a second remove from the
record. But it is quite a difTcrent question
whether it applies to esses of secondary evi-
dence where the original Is lost, or the record
of it is not in law deemed as high evidence **
the original, or, where the copy of a copy is the
highest proof in existence. On these points we
give no opinion, because thia is not, In our
judgment, the case of a mere copy of a copy
verilicd as such; but it is the case of a second
-lopy verified as a true copy of the original. Mr.
Kobertson expressly asserts that the record was
a copy of the original power made by himself,
and that the present copy is a true copy
which has been compared by himself with the
"record. In effect, tnerefore, he swears [•87t
that both are true copies of the original power-
In point of evidence, then, the case stands pre-
cisely in the same predicament as if the witness
bad made two copies at the same time of the
original, and had then compared one of them
with the original, and the other with tha first
copy, which he had found correct. The mode
by which he had arrived at the result that the
second is a true copy of the original, may be
more circuitous than that by which he has as-
certained the first to be correct; but that only
furnishes matter of observation aa to tha
strength of the proof, and not as to its dignity or
degree. In each caae bU testimony amovints to
the same result, as a matter of personal knowl-
edge, that each Is a true copy of the original.
We are therefore of opinion that there was n4
error in the court in admitting the copy In erl-
dence under these circumstances.
In the further progress of the trial addldoual
evidence was offered; and thereupon the defend-
ants prayed the court to instruct the jury, 1.
That If the jury believed that Basil Jones, the
deputy-surveyor and grantee under whom the
lessor of the plaintiff claimed — by designating
the stream marked on the orinnat plat as the
branch of the south fork of the Oconee River,
instead of the south fork of the Oconee River,
and by stating that the land was situate In the
County of Franklin, when a large part of it
lay without the County of Franklin, and with.
out the temporary boundary line of the Stale
of Georgia— practiced a deception upon the
Governor of Georgia, and thereby Induced him
to issue the grant; that such grant is fraudulent
and void, and oannot entitle the plaintiff to ■«•
«T«
StiFREUB CouBT or THE Uhitcd Statu.
»45
corer. E. That A grant of iKnd is aq entirety,
and tbat a graiit void in part is void for the
whole. 3. I'liat a colleen Iment or migrepreien-
tation of material facts, caleulated to deceive
the governor iasuing the grant, rendera the
grant null and void m law. The court refuged
to give eitticr of these inBtructions; and the
questtin now ia, whether all or either of them
aught to hare been given.
The flrit inat ruction is couched Id language
not wholly unahjectionahle or free from ambi-
eiiity. It aasumeB certain facta to be establiahed
in the cane, without referring them to the de-
ciaion ot the jury, and on them founds the in-
atmction; which is certninly not a correct prae-
6T9*] tice. It also uses the words '"practiced
a deception," without adding any qualifying
worda, whether the deception was knowingly
and willfully practiced for the purpose of fraud,
or whether it uaa by mistak ' oi law ur !s::t, oi
by miap'aced conscience in the repiu^entationa
of other persona. And it is certainly the duty
of a party asking an inst-ruction to use language
of such a definite end legal interpretation, as
may not mislead either the court or jury in re-
gard to tlie precise nature of tlie application.
But waiving this uonai deration, the instruc-
tion asked makes no dialin^tion betweeo the
case of a fraudulent granLee and the caa^ of a
bona Bile purchaser fi-om aucb grantee, without
Utitice; a distinction most important in Itself,
and in many cases decisive in favor of the pur-
chaser, whatever may have been the fraud of
the origiuol grantee.
It is unnecessary, however, to rely on this
circumstance; for, stripping the instruction of
its technical form, it comes to this, that if any
part of the luiid included in the grant lay
within the Indian boundary, and the governor
was deceived as to tliat fact, the gi'ant ia void
for the whole land; not only for that within
the Indian boundary, but for all that lying
withiu the limits nf the State. This proposition
is attempted to be maintained by the doctrine
that a giant \ oid in part is void as to the whole.
And certain authorities at the common law
have been cited at the bar in support of the
doctrine. Wc h::vu c^ani^nud thosi^ anthoritlus,
and aro of opinion Ihut tliey do not i^pii'y to
eases like the present. There are doubtless
ceaea where granta and securities, made con-
trary to the prohibitions of a statute in part,
are, upon the true construction of the intent of
the statute, void in toto. But Lord Hobart in-
forme ua tjiat it is very different in cases stand-
ing merely upon the common law. For (to use
hia quaint but expressive language) "the stat-
ute la like a tyrant; where he comes, he makes
all void; but the common law is like a nursing
father, and makes void only that part where
the fault is, and preaerves the rest. See also
Norton v. Simmea, Hob. Rep. 14 j Maleverer v.
Kedshaw, I Alod. Rep. 35; Collins v. Blantern,
2 Wilson's Rep. 3SI. And, therefore, at the
common law, in order to make a grnnt void in
toto for fraud or covin, the fraud or covin must
Infect the whole transaction, or he so mixed up
In it as not to be capable of a distinct and aepa-
• 80*] rate consideration. 'The case of Hyslop
V. aarke, 14 Johns. Rep. 468, waa a case of
fraud, where both the grantors and grantees
and assignees were privy to a meditated fraud
■gainst eraditon, and tfaarefon It was held void
In toto. The csae of Butter t. Dorant, I TaunL
Rep. 220, which is very shortly reported, seema
to have proceeded upon the ground that tbe
statute avoided the security in toto. If it did
not, it seems queationable in ita doctrine.
In the present caae, there ia no atatuta of
Georgia which declarea all granta of land tying
partly within end partly without the Indian
boundariea, to be void in toto. And the policy
of the Legislature of Georcia on thia subject
ia sufficiently vindicated by holding such granta
void as to the part within the Indian boundary,
leaving the grant good as to the residue. Tbia
very point was, in fact, decided by this court in
Patterson v. Jenka, 2 Peters, 216, 236. One ques-
tion there was whether the whole grant |a
similar grant] was a millity, beonuse it con-
tains some land not grantable. In answer tA
the question, Mr. Chief Justii-e Marshall, in de-
liveiinf t!ic' up:rio:i of the court, said: "In the
nature oi the thing, we perciiie uu reason wby
the grant should not be good for land which it
might lawfully pass, and void as to that part of
the tract, for the granting ot which the off .
had not beer opened. It is every day's practice
to make grants for lauds, which have, iii fact,
beeu granted to otliers. it has never been sug-
gested that the whole giant is void because a
part of the land was not grantable." We arc
entirely suiislicd with this doctrinu, as equally
founded in law and leason. The land in con-
troversy iu the preacnt suit is within the ac-
knowledged boundaiy of Georgia, and without
the Indian boundary; and adniiLliug tha S'^at
to be void as to the part within the Indian
boundary, it is, in our judgment, valid as to the
residue, notwillislsnding the supposed deccptioa
stated in the instiuction; for that deception d;d
not affect with fraud any part of the transac-
tion, except as to the land within the Indian
boundary. The instruction, therefore, was right-
ly refused by the court.
The second instruction may be disposed of in
a few words. It roniaios a proposilion abao-
Ititely universal in its terms; that a gi'iint at
lands ia an entirety, and tbat a giant void in
pait, is void For the whole. If ihis proposition
acres, which was void for nuj cause whatever
as a conveyance of one acre, although it might
be for want of title in the grantor, would be
void for the retiiaining nine thousand nine hun-
dred and ninety-nine acres. It is sufficient lo
say that the instruction so generally framed
ought not to have been given.
The third instruction admits of a similar an-
swer. It is universal in its terms, and state*
that "a concealment or misrepresentation of
material facts," not stating whether inno-
cently or designedly and fraudulently mads
"calculated to deceive the governor, issuing
the grant," not stating whether he was actu-
ally deceived or not, "renders tbe grant null
and void in law," as to all persons whatever,
not stating whether the party is the original
grantee, or a bona fide purchaser under him,
without notice. For the reasons already stated,
such an instruction, so generally stated, ought
not to have been given.
Upon the whole, we are all ot opinion that
i> States v. Thi I
••S*] THE UNITED STATES, AppelUntj,
THE BRIG BURDETT.
Forfeiture of veBsel for vfolKtion of revenue
— acts and adEniaaionB of agent ma evidence
■gaiUBt principal.
MarrUDd. An tnronnitlon was fllEd 1c ttip Da
trlcl Court ol tb« CQlCed States DD the iBt of Octc
bei. 1SS3, agnJiitt tbe [ '
o tfae IJoited States ft
m ol ibr rpglstrj tcti, she bcloe 01
Je or in uart \>J • (orelgnet, a Bubjcc
; or Bp*iD, Tbfl TfSBCl
- -' ■■ nrge 8. 6tfe»er,
Rent at (iixirge 8. Btn
iltcd Slates, aad waa
iQd Id
ol I Lie
Surchaaed by an
:t aa the ageat of Ur. Stec
. by Mr.
! llnlted
tetlen writ
en by M
. Carr
ra to Captain Mabb
the eofflmai
der of tb
BurdetC, durlnK uer wv^ia.
l^'Si'^'W.
lci> bad
b,:en d
ii-ectcd by
bim, and
to the
buslneBB a
d tmploy-
neat of tbe
tiers were
bjiited to
•■ »likD<^e
and were
admitted In the IJ
Circuit Co
rC, to wb
ch Lalt
r court tb
UttD on aa
he vessel
B^. tl«t^
htTle-i" ""' '
n't letal ey d-nce.
s»loni of
an ages
vidence K
kind hla principal, no
a transaction to hla
IB hla
prineip
aulMequfut
1 eTldeace
ttim, within tbe Bcoiie or bla powers, are obll;^lary
npoa bis principal; nnrl rhoMi- prtM mBV !•• irm-d
in the aaDie mnnnor an If done hy tbe principal. Tbe
acent acting nilhln his aulUorliy, Is suiwlituied
for tbe prlaclpal la eiery respect, and bla state-
menlB, wnlcb form a i>art of the rts |est«, may l)s
The object oF thiB prasecnilon •pss to enforce a
torreltnre of tbe vi'snel and all that pertains to her.
tor a TlolatlOD of a revenue law. Tbe prosecution
eatabllal
Tbat tra
vbo practice tbc»
ceedini!
', whlcb
9 subterfuges to avoid
detection, is muaily Dolorlous. But ■ui:h acts can-
not alter the ealabllshed rules of
ba*« been adopted, as well with reierence <o
protection o( tbe InnoaDt. aa tbe pUDlsbmenl
&• snllty.
If a fair canstmctlon at tbe acta and decli
ttoD* of an Individual do not convict blm oE an
ttaat. If tbe facta may be admitted as nroved .
tbe Bccnaed be innocent, a
of an act wblcb iDbJects him to the U
bla property on a mere pi
Cnilty. not be may be ln_ _. .__ ._. _
erldenee doea not preponderate against him — it It
bang opon a balance — tbe penalty cannot be en-
far«d- No iadividuai should In punished for a
violation of law whlcb Inflicts a forfeiture or prop-
erty noleaa tbe offense shall be established beyood
reasanabie doubt. This is a rule wblcb governs n
~"TJ Jury Id all criminal •pcoaecutionB and the
lid be be held gnllty
_ to the forfeiture of
lumptlonT He may be
rdalns a
the
eosut, wben eierdahts a maritime Jarladictlon.
APPEAL from the Qrcnit Court of the Unit-
ed States for the District of Haryland.
The case is full; stated in the opinion of the
Mr. BntlcT, Attorney-Genera!, and Mr. Wil-
lUma, IMatrict Attorney for the United States
for tbe District of MarjUnd, for the appel-
Unta.
"Veit- .
acts er adnlasloo* «t, •
This <
appeal from the Circuit Court of Marylar
The appellants, by the attorney of tbe Unit-
ed States, filed in the Kstrict Court of Marj*
land, an information on the 1st of October,
1832, for the purpose of enforcing a forfeiture
uf the brig Burdett, her tackle, apparel and fur-
niture, to the use of the United States, on tha
ground that the briK, though reeiBtered as a
vessel of the United States, was then, and still
ia, owned in whole or in part liy a subject of »
foreign prince, viK., by a certain J. J. Carreik,
or a cerUtin J. Carrera, a subject of the King
of Spain, and resident abroacl; which owner-
ship was known to the persons owning or pre-
tending to own the whole or a part of the ^g,
in violation of the act of Congress, etc.
The vessel having been attached, a claim waa
filed hy George G. Steever, in which he alleged
that the brig was originally built in the State
of North Carolina, and purchased by him of the
ori^nal owner in May, 1831, and thereupon
registered in his name, as sole owner, he being
a citizen of the United States; and denied that
the brig waa, at the time she was registered, or
at any time since, owned in whole or in part
by Carrera, or by any other subject of any for-
eign prince or state. The claimant also averred
that, at the time of obtaining her registry, the
vessel was, and ever since had been, his sole
property.
*The Teasel having been appraised [*8S4
at tfi,OO0, and security having been given by
the claimant to abide by the final order of tbe
court, she was restored to him.
On the hearing of the cause, the testimony
and depositions of several witnesses were intro-
duced, and much documentary evidence offered
on the part of the United States.
Several letters, proved to be in the hand-
writing of J. J. Cirrera, were offered in evi-
dence on the part of the United States, to the
reading of which the counEel for the claimant
object^], on the ground that Carrera was not a
party to the case; which objection was sus-
tained by the court.
Tbe District Court dismissed the information;
and that decree, on appeal, waa affirmed by tba
Circuit Court.
In the argument the counsel for the appel-
lants take two grounds, on which they contend
the decree of the Circuit Court should be le-
1. That the letters of Carrera were improp-
erly rejected. He waa shown by all the srit-
>a to be the accredited agent of the claim-
and hia letters were, taoreover, a material
part of the res gestee.
2. The evidence shows that the chief. If not
the sole ownership of the brig, was in Carrera.
Much reliance ia placed on the teatlmouy of
Cheater and Cox, two of the witnesses, to es-
tablish not only the agency of Carrera, but oth-
er matters material in the case. The former
states that he lived three years In the house of
losepb Carrera, preceding the last of June,
1R32. He was there during the whole of the
operations of the Burdett at Havana. He state*
8B4
Sdfuhu Ooubi of TBI Unimt Statb^
tbkt Steever Mnt an order to CoIotwI Tenant,
of Uiltimore, to purclisne tor him «l Tessel,
which was to be stnt to him at Havana, and if
he was absent, to the house of Carrera; in wliicb
the witness was a partner to a limited extent.
In obedience to this order Ihe Burdett was st'nt,
consigned to the house of Carrera, in the ab-
•ence of Steever, who had l«ft the Havana a
few dajs before the arrival of the Tessel, lui-
d«r the command of Captain Nabb. He fre-
Saentl;^ conversed with Joseph Carrera, and
is nephew J. J. Carrera, respecting the Bur-
dett, and never heard either of them assert an;
ownership or interest in the vessel. Carrera was
made the ship's husband, and had positive or-
ders from Steever, in his absence, to do with
68a*] her as *if she were his own, and to em-
ploy her on freight to the best advantage.
When Steever was near enough to communi-
cate, he gave positive and specific orders. Wit-
ness has often seen his letters on the subject.
Tlie vessel performed several voyages under
the orders of Carrera; and after her return from
New Yorlc, having been on shore once or twice,
•ome repairs were made under the direction of
Captain Nabb, which Carrera was apprehen-
sive might not be sanctioned b; Steever.
The witness thinks about eil.BOO, at six. and
tdght months' credit, were paid for the ve!<aeL
Richard G. Cox states that he is a clerk of
Colonel Tenant's, and conducts all his business;
■nd that the Burdett was purchased b; Colonel
Tenant on the order of Steever, who was then
•t the Havana, and the vessel was sent there
Bubjact to his order, and in his absence to Car-
rera. Before the arrival of the vessel Steever
had sailed for Boston, and when he returned,
being informed rf the purchase, be paid Culo-
nel Tenant, $1,100 in part of the purchase
money. The vessel, including equipments,
coat about 813,000. The rest of the purchase
money was paid by the house of Joseph Car-
rera. The witness has bad correspondence
with Carrera respecting the vessel, and baa in-
sured her by orders from Carrera on account of
Steever. He has seen the correspondence with
the bouse of Carrera, and has never heard or
seen anything which goes to show that the
Carreras had any interest in the vessel, or that
Steever was not the owner.
William W. Russel, a merchant of the city
of New York, states that he was consignee of
the brig Burdett in December, 1831, at which
tiliie Nabb was master. The vessel came from
Havana and Matanzas under orders from Jo-
seph Carrera, with whom the witness corre-
sponded respecting said vessel. The witness
understood from the letter of the ISth of No-
vember, 1831, brought by her to him; that she
was owned by G. G. Steever, of Baltimore.
Witness accounted with Joseph Carrera for
the freight of the brig, but be has no knowl-
edge that Carrera has any interest in her.
In a tetter from Joseph Carrera to Russel,
the above consignee, dated the ISth of Novem-
ber, 1831, he says: "I have requested Captain
Nabb to value on your good self on bis arrival ;
880*] 'and 1 beg leave to solicit your atten-
tion in procuring a good return freight to Ha-
vana for that vessel, as well as passengers, etc.
And on reference to Mr. Steever'a instmcliona,
who, I presume, will have left Baltimore for
Mexico, Captain Nabb is *iithoriied to take a
114
regards the benefit to be derived from it. What-
ever may be the destination of the Burdett
from your port, I beg to request that you will
advise Colonel Tenant, in the absence of Mr.
Steever, to have insurance effected on the brig."
And again: "My control oter this vessel is lim-
ited to give her employment, and to oddrcss
her to my friends, wherever she may he found;
but where the owner can himself attend to her
concerns, if hs be so disposed, I shall feel
obliged to you by transferring her to him."
Another letter signed by both the Currerai,
dated Havana, the llth of January, 1332, to
Mr. Russel, says: "I much regret that the pros-
Scct of procuring a full freight for this vessel
IT this port wss not encouraging, etc. I rely,
however, on your friendly exertions to pve
her the best employment," etc.
And in another letter, dated the Z4th of Jan-
uary, 1833, to Mr. Russel, it is stated, "I have
the pleasure of handing duplicates of my re-
spects of the llth current, and to own receipt
of your regarded favors of the Z7th and 30th
ultimo and llth instant; this last advising tbal
you intend to despatch the Burdett for this
port, etc. I feel confident you have used your
utmost exertion in giving to this vessel the nest
employment," etc.
And in a letter from the same person to
the same, dated the Bth of February, 1S32:
"The Burdett arrived on the 301U, in eleven
days' passage. All the accounts relating to her
will be examined and booked in conformity.
I have not, as yet, determined on the direction
to give the Burdett."
Mr. Russel wrote to Joseph Carrera, dated
New York, December 31st, 1831: "I acknowl-
edge the receipt of your esteemed favor of the
12th ultimo, handed me by Captain Nabb.
of the Burdett, which vessel arrived on the
I2th, after having been olT the coast for seven
days, and suflering some slight injury in her
upper works. The extent of the damage will
I presume, however, not amount to a claim on
the underwriters, but should it prove otherwise,
the necessary documents will *be for- [*681
warded to Colonel Tenant, in order that he
may claim them.
"1 have to return you my thanks for the
favor done me in the consignment of this Tea-
sel, which, however, will be promptly surren-
dersd to Mr. Steever, should he be in tbia
country, and be desirous of giving his personal
attention to her concerns," etc.
Another letter, dated New York, 27th De-
cember, 1S31, from the same to the same, states
exertions used to procure a full freight for the
Burdett. And there is contained in the record
several other letters from Mr. Russel to J. Car-
rera, dated at New York, in January, 1832, all
of which relate to the freight of the Burdett.
Certain letters from J, J. Carrera to Captain
Nabb, numbered in the record 1, 2, 3, and 4,
were offered in evidence by the diatrirt tXtor-
nej. and were objected to by the claimant.
The letter numbered 1 is dated at Ifavano,
November 15th, 1631, and contains particular
I>U
Tm UmriD Statu t. The Bkio BuBacn.
The ktter nnmbered 2, and dated Hftvana,
Mth NovEmbrr, 1631, ia of the aame tmport.
Letter numbored 3 ii dated Havana, IZth
Ifaj, 1832, in which Carrera aa;^^: "Your 1
ten of the 13th nnd 23d April last have been
eeived, and am aony tn hear of the damage the
Burdett has expeneneed in a tremendous gale
of wind near the Bermudas. The certificate of
survey, as well as the estimate of repairs to Ix
made on the Burdett, has been received; thi
■mount of repairs is enormnua, but we miisi
conform to it, if there should be no other rem
edy. No doubt the underwritert will have U
reimburse the amount. I wrote to Colonel
Tenant a few da3'8 ngo, authorizing him to ar-
nuge the business of the Burdett as well as he
can, and for tlie best of my interest. I entreat
jou to consult him on the business, and do for
the best. The e.tpenses and repairs are heavy.
Slid surpass my expectations. Mr. Tenant has
been authorized by me to pay the amount re-
quired to fit out the vessel; but if he thinks
best to sell my four hundred boxes of sugar, he
is at liberty to do so, for they are insured '
Baltimore.
•B8*] *In letter numbered 4, and dat«d at
KavaDB, 28th June, 1832, Mr. Carrera says: "I
am in reeeipt of your valued favors of the let,
11th. and 21st May last, by which you inform
me of the last survey held on the brie Burdett,
and that she was condemned and to be sold at
public auction ; but, at the request of our
friend. Colonel Tenant, the sale of the said vei-
lel was postponed, and that the said Tenant
had aent two gentlemen in order to have a pri-
vate aurvey, etc.
"I am informed that the Burdett's cargo for
Hamburg had been shipped on board the brig
John; this vessel having been chartered by
yourself, with the appro^tion of Mr. Tenant,
and that she was to sail, et«.
"^f this time, I presume, you have seen Mr.
Steever, and hope this friend will have suc-
ceeded in his claim aeainst the underwriters
tor a partial or a total loss on said vessel.
"I beg of you to do all in your powar, that
we may be able to collect what la so Juatly duo
to the interested in that vessel."
And the district attorney offered to read other
letters from Carrera to Captain Nabh, numbered
on the record 6 and S, if the claimant would
withdraw his objections to the above letters be-
in^ read as evidence; but the objections were
not withdrawn, and tbe same were auatained
by the court.
The Urst question for tbe consideration of
the court is. whether the alrave letters were
properly rejected by the court below. It is ob-
lected that these letter* contain but a part of
the correspondence on tbe same subject, and
that the nonproduction of the whole ts unac-
counted for.
The letters referred to were addressed by
Oarrera to Captain Nabb, and tt may be that
some of the letters written by him, and also by
Oarrera in relation to the same matter, are not
produced. As this correspondence is not in the
possession of the plaintilTs, it is impossible for
the district attorney to produce it.
If Carrera were to be treated as a mere agent,
he might have been examined as a witness, and
m pel led to produce or swear to any letters in
■ —^ 1 the
ownership of the vessel. Bat the forfidture la
attempted to be enforced on the ground that
tliis same jperson is the owner of the vesiel, in
whole or m part.
In this view, he would be required to iwear
in a matter •which concerns his own ['989
interest, as his oath, if received, would go di-
rectly to establish or to refute the important
point of ownership of the vtesel. It was for
this reason, it is presumable, that Carrera was
not examined aa a witness-
So far OS the proof of acts done within the
scope of his agency may be essential, It may
be made by other evidence than his own oath.
The proof of Carrera's agency, In reference
to the Burdett, is clear; and to consider him in
this light is the most favorable view for tbe
claimant which can be taken of the case.
Carrera must have acted as agent or as prin-
cipal, in regard to this vessel. He planned her
voyages, gave directions aa to her freight, ap-
pointed consignees, and paid for tbe repairs of
the vessel. That he did these things as the azent
of the claimant, is the only ground on which
his right can be sustained; for if Carrera acted
tn any other capacity, it muat be fata) to the
claim of Steever.
Under the dreumatancea of the case. It does
not seem that the objection, on the ground that
all the correspondence was not produced,
should have been sustained by the court. If
the letters offered contained facts which were
competent evidence in the case, the principal
could not object; because the correspondence
referred to, was either in hia possession, or the
possession of his agent.
But It is insisted, if the whole of the corre-
pondence were produced, ft would be inadmis-
sibTe, because Carrera is no party in the case.
The confessions of an agent are not evidence
to bind his principal; nor Is his subsequent ac-
count of a transaction to hia principal evidence.
But his acts, within the scope of his powers,
are obligatory upon his principal, and those
acts may be proved in the same manner aa it
done by the principal. The agent, acting with-
in his authority, ii substituted for the principal
every respect; and his statements, which
form a part nf the res gestEe, may be proved.
But it is not material to decide the point
raised on the rejection of these letters. Thoy
may be considered aa a part of the record, and
aa presenting all the facts which they contain,
in connection with the other facta in the case,
for the consideration of the court. And If on
this brood view of the merits, the 'pros- [*S90
ecution shall not be sustained, it will become
holly unnecessary to determine any question
I to the admissibility of evidence.
The object of the prosecution against tha
Burdett is to enforce a forfeiture of the vessel,
and all that pertaina to it, for a violation of a
revenue law. This prosecution, then, ia a high-
ly penal one, and tbe penalty ahould not be in-
flicted unless the infractions of the law shall be
established beyond reasonable doubt.
That frauds are frequently practiced under
le revenue laws cannot be doubted; and that
tndividunls who practice these frauds are ex-
ceedingly ingenious in resorting to various sub-
terfuges to avoid detection, ia equally notori-
ous. But such acts cannot alter the established
nilea of evidence; whloh have beea adopted, m
Ilk
no SttniMK CoDBT or
mil with reference to the protaction of the in-
nocent, as the punishment of the guilty.
A view of the evidence in this case, includ-
tog the rejected letters, must creste a suspicion
of fraud in the mind of everyone who reads it
with attention. Steever went to the Havana ae
piipcrcargo o( ■ vessel owned by Colonel Ten-
ant. His means were limited. While at the
Havana, he wrote to Colonal Tenant to pur-
chase for hint a vessel; and the Burdett was
purcliseed, and sailed for Havana with a letter
to Steever, which, in hia abaence, was to be
(^ned hy Carrera. Steever being Absent, the
letter was opened by CarrerB; who, from that
time to the commencement of this prosecntion,
gave all neceaaary directions respecting the
Burdett; with, as it would seem from the evi-
dence, little or no ioterferencc by Steever. And
in addition to this, with the exception of $1,100,
it appears the Burdett was paid for by the
house of Carrera.
These facts, and others which are on the rec-
ird, do authorize a auapicion that the vessel was
Surchased in the name of Steever for the bene-
t of Carrera. And we think that the proceed
log instituted by the district attorney in ttiia
ease, waa justified from the facts which have
been developed.
But the inquiry now ii, not whether the
prosecution was properly instituted, but wheth-
«r the evidence makes out a forfeiture in such
aa creating suspicion, are they conclusive T It
Sftl*] appears that the vessel was 'purchased
by the order of Steever, and that she wa* dis-
KLcbed to the Havana, subject to hia order.
at he made the flrst payment of (1,100, and
that he conatituted Carrera his agent to control
the vessel, in every respect, as if she were his
own, in the absence of Steever. And that in
many of the letters of Carrera respecting the
Tesael, her deattnation, her freight, or her re-
pairs, that he referred to Steever as her owner
and instructed the consignee and other agenta
to apply to Steever for direction, if he wei '
tbe United States. That in all these ci
Carrera profeaacd to act in subordination to the
Instruct ions of his principal.
The vessel was entered in the name of Steever,
Hid she was insured aa his property. And as
to the instructions given by Carrera, and the
payments of money by him, not only on the
contract of purchase, but also for repairing the
vessel; they are not at all inconsistent with the
allegatlonB of the claimant.
If Carrera acted bona fide as the agent of
Steever, he might be expected to give the in-
structions he did give, and, out of the profits
of the vessel, make the payments which he did
It is said that these professions of Carrera, as
to hia agency, etc., were made as a cover to the
transaction. This, possibly, may have been
hia motive; but are not the facts consistent
with an innocent motive? And if a fair con-
struction of the acts and declarations of an in-
dividual do not convict him of an offense — If
raiiUy of an act which subjects him to the foT'
feiture of his property, on mere presumption.
Ht may be guilty, but ha may be tnnoceat. If
against him — if it hang upon a balance — tlia
penalty cannot be enforced. No individual
ahoutd be punished for a violation of law
wliich inflicts a forfeiture of property, unlesa
the offense shall be eatablished beyond reason-
able doubt. This is the rule which governs •
jury in all criminal prosecutions, and the rul«
is no less proper for the government of ttw
court when exercising a maritime jurisdiction.
After a full and mature examination of all
the facts in this oaae, whilst wc admit the acta
of the claimant are not clear of suspicion, wa
are farced to the conclusion that the evidence
does not authorize a forfeiture of the vessel.
The decree of the Circuit Court is tberefon
affirmed.
Evidence of dtizenshlp.
Maryland. The plalDllfTs loattttited s suit In tka
Circuit Court of tlic United SUtes tor the District
Dt MorflaDd. stating themselvfs to be cltlieos a(
tbe SUte or MarylBod. and that Ibe defendant was
an alien, and a subject of me King of Spain. The
derendanl nli^aded in abaiement (hat one of the
plaluIllTB, Douilugo D'Aibel, wu sot a cltlsen of
Marjtand, nor of anj of the Unlled Stales, but wss
an alien, and a auliject of the KIrr of SdsIo. Upon
Ih<! (dn! of the Uxue Joloed on (hia plea, the pliln-
ilTs produced and gave In evidence under the de-
cision of Ihe Circuit Court. ■ pasaport granted by
tbe Secretary of State of the United States, atatinc
D'Arbel to be a citizen of Ibe l;ult<'d (Jialea. Held
Idene
■ Unl
LouIbIl „ _... ,..
which had beca orlglrallj Ini
AMiel, In - '■-■ - -' '-
ervdlu;
suit
I at Louli
and on b'ls
hjeet of tbe
King of Spain, had been removed for trial to the
Dlatrlct Court, under the Buthxrlly of the act af
Congress autborltlng auch a removal of a suit
against an alien into a court ot the United Stales.
The record wss lutroduced, as coutnlnlnR ■ copj
of tbe affidavit of D'Arbel In the Hlate court upon
which the ease was removed. Held, that tbb was
legal evidence.
IN error to the Circuit Court of the United
Statea for the District of Maryland.
The defendants in error instituted an action
of assumpait in the Circuit Court, and in the
declaration stated themselvea to be citizens of
Msryland, and th.it the defendant was a euh-
ject of the King of Spain. The declaration
contained the common counts.
The defendant below, Domingo Urtetiqul,
pleaded the general issue, and also a plea la
alrateraent, alleging that Domingo D'Arbel, one
of the plaintilTs, was not, at the impetratlon of
the wnt, a citizen of tbe United Statea, <w of
any one of them.
To this plea there was a replication, and ■■
iasue thereon. On the trial of the cause upon
other iaaues joined, exceptiona were talcen tv
the ruling of the court; but as the cause waa
'decided in Utia court exclusively upon [*fltS
Paten t.
nmniiui T. D'Aaor n al.
tb« qMsUimi niud on the plea fai abatement,
thc7 are omitted in this report.
llie ezcepticns taken by the defendants
the CiKuit Court were the foLlowing:
The plaintifTB in the Circuit Court having
offered evidence to prove that Domingo I^Ar-
bel was an inhabitant of Louiiiana, before and
on the SOth April, 1S03, and continued to be
vi inhabitaot thereof until the year ISIB or
1810 — further to support the iaiue on their part,
on the plea of abatement, and to prove the cit-
iienihip of lyArbel, offered in evidence a pasa-
port granted bj John Quincj Adame, then
Seeretarj of State, on the 22d March, 1S24, to
the said D'Arbel, aa a citiien of the United
States. To the admfuibilit; of this passport
•• legal or competent evidence of the American
□tiienahip of the said D'Arbel, the defendant
below objected, but the court overruled the
•bjeetion, and permitted the same to be read
to the jury.
The defendant, to eupport his plea in abate'
■ent, and for the purpose of showing the ad'
mission of D'Arbel, under oath, that he was or
tbe 8th of Ua^, 1817, a subject of the King of
Spain, offered in evidence a record of the Dis-
trict Court of the United States for the Eastern
District of Louisiana, in a cause, wherein John
K. West, curator of James Niel, was plaintiff,
and Domingo D'Arbel was defendant, which
had been removed, under and b; virtue of the
twelfth section ol the Act of 17B9, from the
District Court of the State of Louisiana for the
First Judicial District, upon the petition of tbe
said D'Arbel, supported hy affidavit that he
was on the Sth of May, IBIT, a subject of Hia
Most Catholic Majesty the King of Spain. The
record offerrd in evidence, act out the tran-
script or record from tbe State court, certified
onder seal by the deputy-clerk of said court,
and also the prDi:eedings in the District Court
of the United States thereupon, and the said
cecoTd was certified in due form, as containing
"a foil, faithful and true copy of the tran-
script" from the State Court, "and also of the
proceedings which have taken place in laid
ttuie," in the District Court of the United
States. Tbe defendant below also proposed to
pre in evidence that the D'Arbel mentioned
la the record was the same D'Arbel, ons of the
^ntiffs in this cause.
The plaintlils objected to the evidence so of-
•f4*] fered, and the 'court refused to per-
Bit the record to be read in evidence foi the
thrM following reaionai
1. It is res inter alios acta.
2. The transcript from the Court of the State
of Louisiana Is certified by Stephen Fedes-
cUux, deputy-derk, without any official seal.
And,
3. The clerk of the District Court of the
United States certifies that the foregoing nine
pages (meaning the record) contain a full, faith-
ful and true copy of the tranacript from the
Rrat Judicial District Court of the State of
lenisiana, in the case wherein John K. West,
corator of the estate of James Niel, is plaintiff,
and Domingo D'Arbel Is defendant, etc. The
eartlBcate is In effect tbe copy of a copy.
The defendant below, to support his plea in
abatement, also gave in evidence by competent
Witneaaes that EKArbel had declared himself to
Wt« beea a native Frenchman, and bom near
• laflO.
tbe borders between n«nce and Sjialn; where-
^as then before the jury, In support of his plea
in abatement ,the plaintiffs were entitled to the
verdict, if the jury believed the plaintiffs' evi-
dence; which prayer the court granted.
The defendant excepted to the decisions of
the court on the evidence offered by the plain-
tiffs, and to the ruling of the court on the pray-
ers of the defendant I and the court sealed a bill
of exceptions. A judgment having been en-
tered on the verdict of the jury in favor of the
plaintiff, the defendant prosecuted this writ of
The case was argued by Mr. Kennedy and
Mr. Meredith for the plaintiff in error, and by
Mr. Johnson and Mr. Taney for tlie detend-
For the plaintiff in error. It was contended
upon the first exception, that the passport
granted by the Secretary of Stat* to M. D'Ar-
bel wss not admissible evidence.
Passports are not authorized by any act of
Congress, and even when they are used in for-
eign countries, tliey are, from the comity of
- itji with each other, admittwl aa
prima facie evidence of what they purport.
They do no more 'than request that ['095
the person to whom tbe passport is given may
be permitted to pass freely, and that he may
have all lawful aid and protection as a citizen
of the United Statea.
denied that the passport was evidence,
any more than a mere certificate of a claim by
D'Arbel of citizenship. It may show an ap-
plication to ths Department of State; but tne
Circuit Court allowed it to be read as legal evi-
dence of citizenship.
Tt is not judicial evidence, as it was not given
under any law. Protections are not "per se"
evidence. 3 Wash. C. C. R. 629. Such a pa-
per has never been admitted to prove the facts
stated in it. Passports are iKsued in the De-
partment of State on request, and not upon
"idence to support the assertion of citizenship
which they are granted. But if such evi-
dence were required and furnished, unless by
some direction or authority of a statute, they
would not be evidence of the fact of citizenship.
not intended that a passport should
be judicial evidence, either here or abroad. It
political document addressed to foreign
s and foreign agents. Commanders of
fleets and genrrala of armies grant them, and
they pass for what they are worth. The prac-
tice of the Department of State cannot changa
the law of evidence.
Upon the second exception, it waa argued
moved from the State Court by D'Arbel, waa
legal evidence of the declaration made on oath
by bim, to obtain the removal of the cause.
*t was introduced only to show the oath tak*
by D'Arbel. This was bis mere declaration,
and as such could be proved by the paper it-
, as a declaration could be proved by a per-
who heard it. It is bis own act, and as the
record is certified according to the act of Con-
gres, the contrnts of it were evidence.
D'Arbel had filed the proceedings in the Dii-
tiiot Court, from the State Court, and he waa
■ 7f
Sdpumb Coubt of thk Umitid Statbo.
1S30
the only person who could do lo; >nd to obtain
the consent of the court to receive them, he
made the afHdavit. It i% not the proceeding*
In the State Court which are evidence, but those
in the United States Court, which were there
upon the atlidHvit of D'Arbel, under the au-
Ctte'l thoritj *of the act of Congre^e; and the
proceedings of the State Court became those of
the Hi strict Court.
The removal of the proceeding! in such a
case to a court of the United States from a State
court, is like the removal of a case b; certiorari,
which takes uji the whole record, and thej be-
come matter of record in the court to which
they go. The term "process," in the act of
Congress, means all the proceedings. No new
declaration is Bled in the federal court, and the
court may remand the case if its removal has
not been legal. Cited, I Wheat. 304, 345; 3
Story on the Constitution, SOS; 1 Peters's C. C.
a. 44; 1 Fainc, 410; 4 Wash. C. C. H. 2B0.
The objection that the record was res inter
alios acta, would apply to all declarations made
under any circumstances. The record is not
to affect the right of anyone hut D'Arbet, and
to prove the fact of his alienage. Suppose he
had declared he was an alien, it would equally
alTect the rights of his coparLnera, and yet the
rieht to prove such a declaration will not he
Ab to the third exception, it was argued that
it look from the jury the consideration of all
tliu evidence in the case, and directed the jury
to consider the plaintiffs' evidence only. Tbia
waa an interference with the province of the
jury.
Mr. Johnson and Ur. Taney, for the derend-
■nts in error, contended on the Srgt exception
that the passport was proper evidence. Docu-
ments of this description are made evidpnce by
usage. The document is respected by foreign
nations; it is granted by a liigh officer of tlie
government, e-.'d it contains his official declara-
tion of the fact elated in it, the citizenship of
the person named in it. The laws of nations
recognize passports as evidence of ths national
character they assert.
Acts of Congress recognize passports. S
Laws U. S. 98; 3 Laws U. S. 628. The last
act impoaea a penalty on consuls for granting
passports to persons not entitled to them.
The form, manner and evidence on which a
passport shall be granted, are not reculated by
any particular law, hut the court will judicial-
ly take notice of the usage of the government
to issue tbera. It is the universal usage of na-
tions to grant them, and to respect them as
protections according to the law of nations.
•9T*J 'Upon the second exception, the
counsel contended that the record was not
evidence in the case. Whether a cause shall
be removed from a State to a federal court,
depends on the State Court, and the record of
the action of the State Court, presented as it
was in tfaia case, would not be evidence. No
inquiry ia made in the court of the United
States as to alienage that is made in the State
Court; and the affidavit is onlv to satisfy the
Stote Court of the fact alleged. The amdavit
and the petition form no part of the record,
and do not properly go up to the District
Court.
If thif potition ie eorrect, the eertiflcate and
sia
seal of the District Court of toutilana, how-
ever regular under the act of Congress, were
no proof of (he affidavit. If such afXdavit
could be evidence, it should have been proved
by the seal of the State Court. As to the con-
struction of the Act of 1T8D; cited, 12 Johns.
163; 4 HF'n, &. Mun. 173; 3 Mason, 457.
If an aflidavit is made to a plea in abatement
in the Circuit Court, would it be evidence in
another courtT Certainly not.
But when this afTidavit was made, D'Arbet
was in fact a citizen of the United Statea, by
the operation of the cession of Louisiana, what-
ever may have been his opinion on the subject.
He BMore in the allldavit to a legal proposition,
and he was in error as to this right and rela-
tions to the United SUtes.
But if the aflidavit tn the record is evidence
against D'Arbel, the question here ia, whether
it shall be admitted to affect the other plaintiiTB
below. It will have the elTect to drive them
from their action in the Circuit Court; and as
this will be the consequence of its admission,
this court will consider it to have been properlj
excluded in the Circuit Court.
This case comes up on a writ of error from
the Circuit Court of the Maryland IHstrict. It
is an action of assumpsit. The declaration con-
tains the common money counts, and also
counts fur goods sold end delivered, work,
labor and services, and an insiinut computaa-
sent. There is an averment in the declaration
that the plaintilTs arc cliizpiis of the State of
Marylnnd, and tlie deienilant an alien, and sub-
ject of the King of Spain. Tlie defi'tidnnt plead-
ed the general jeisuc, and also a p!ca in abate-
ment, alleging that Domingo D'.Arbel, one of th«
plaintiffs, *was not, at the co-nmenre- [*S98
nient of the suit, a citizen of the United Statea,
or any one of llipm; to whirh tliere was a rep-
lon joined. And by
the record, all error*
both sides; and the
bills of exceptions
taken at the trial; three of which relate to mat-
ters arising under the plea in aluitement, and
the other two upon the merits.
The question arising upon the first exceptioa.
lication, and i
on agreement i
in pleading ar
turns upon the admissibility in
passport given by the Secretary of Stale, intro-
duced to prove the citizenship of Domineo
D'Arbel. The record states that the plaiutiffa,
farther to support the issue on their part, on
the plea in abatement to the jurisdiction if thin
court filed in this cause, offerta in evidence tho
following paper, purporting to be a passport
from the Secretary of Slate of the Uiiiteil Statea,
and which was admitted to be an original paper
from the Department of State, signed by John
Quincy Adams, tlien Secretary of State of tha
United States; and also offered evidence that
the several indorsements on said paper, were
respectively in the handwriting of the severwl
persons sigmne the same; and that the said
persons were the respective officers of the gov-
ernment of Mexico, as they style themselves to
the said indorsements, at the periods at whieh
the same were made. It was also admitted
that at the date of the said passport, said
D'Arbel was then in Mexico, and that the said
Peters •.
Unenqui t. jyiaaz ki al.
pMsport wtM applied for, and obtained for him,
■t his instance, and by his request, by one of
the coptointitTs, who transmitted the same to
the said D'Arbel, into whose possession it
came, and by wbooi It was used. The only
proof of said uae being the said iadorsement so
made thereon. The passport is as follows:
'United SUtes of America. To all to whom
these preseata shall come, greeting. 1, the un-
dersigned, SecTetarj of State of the United
Btates of America, hereby request all wbom it
may concern, to permit safely and freely to
pass, Domingo D'Arbel, a citizen of the United
Slates, and in case of need, to give him all law-
ful aid and protection. Given under my band,
tnd the impression of the seal of the Depart-
■nent of State, at the city of Washington, the
£2d day of March, 1824, in tbe forty-eightb
year of the independenM of these United States.
John Quincy Adams."
fOV*] *To tlic admissibility of which paper
in evidence tlic defendant, by bis counsel, ob-
jected; the same not being legal or competent
•ridence of the American citizenship oi said
D'Artwl. But the court were of opinion, and
io decided, that the said paper was legal and
competent evidence of said citizenaliip, and tbe
same was admitted.
There is some diversity of opinion on the
bencli, with respect to tbe admissibility in evi-
dence of this passport, arising, in some meas-
ure, from the circumstances under wliich the
offer was madp, and its connection with other
natters which had been given in evidence.
Upon the general and abstract question, wliether
the passport, per se, was legnl and competent
evidence of the fact of citizenship, we are of
epinion that it was not.
There is no law of the United States in any
manner regulating tbe issuing of pauports, or
directing upon what evidence it may oe done,
or declaring their legal effect. It is under-
stood, aa matter of prartice, that some evidence
of citizenship is required by the Secretary of
State before issuing a passport. This, how-
ever, is entirely discretionary with him. No
inquiry is instituted by him to ascertain tbe fact
of citizenship, or any proceedings had, that
will in any manner bear the character of njudi-
eia] inquiry. It is a document which, from
its nature and object, is addressed to foreign
powers; purporting only to be a request that
the bearer of it may pass safely and freely; and
■ to be considered rather in the character of
a political document, by which the bearer Is
recognized in foreign countries as an American
citizen; and which, by usan and the law of
utions, is received as evidence of the fact.
Bat this is a very diFTerent light from that in
which it is to be viewed in a court of justice,
where the inqxiiry is as to the fact of citizen-
ship. It is a mere ex-parte certificate; and if
fonoded upon any evidence -produced to the
Secretary of State establishing the fact of dti-
■enship, that evidence, if of a character admis-
sible in a court of justice, ought to be produced
upon the trial, aa higher and letter evidence of
the fact. But whether the Circuit Court erred
la admitting the passport in evidence, under
tke circumstances stated In the exception, this
1 i* divided In opinion, and the point is of
~B undecided.
the issue on hie part, on the plea to abatement,
for the purpose of ehowlng the admission of
the said D'ArI>el, under oath, (.hat he was a
subject of the King of Spain on the Sth day of
May, IS17, offered in e\idence a document or
paper, purporting to l>e a record of certain pro-
ceedings in a cause in the Diatrict Court of the
State of Louisiana, in and for the First Judi-
cial District of that State, in which John K.
West, curator of the estate of James Niel, waa
plaintiff, and the said Domingo D'Arbel was
defendant; which proceedings contain a peti-
tion presented to the State Court, for the pur-
pose of removing the cause into the District
Court of the United States; and in which ^ti-
tion it is alleged that Domingo D'Arbel is a
subject of His SIo9t Catholic Majesty the King
of Spain; and on this ground claimed to have
hia cause removed into a court of the United
States, pursuant to the act of Congress. To
which petition is annexed the oath of the said
D'Arbel, that the facts contained In tbe peti-
tion are true, and that he is a subject of Hla
Most Catlioiic Majesty the King of Spain. To
the admission of this evidence the plaintiffs*
counsel objected, and the court sustained the
objection. The exception embraces some mat-
ters upon which the court expressed no opin-
ion, and need not, therefore, be here noticed.
So far as relates to the admissibility of this
evidence, the objection is stated as follows:
"Tfie plaintiffs object to the giving in evidence
the record so offered, for the purpose for which
it is offered by the defendant. First, because,
if the jury Cnd the facts stated in tbe plaintiff's
first prayer, then they are bound to find a ver-
dict for the plaintiff, on the plpa in abatement;
and second, because if not concluded, the said
record purports only to give a copy of a copy
of the petition and affidavit alleged to have
been filed in the said case, in the said record
mentioned, and a copy of a copy of the said
case, aa it purports to have been in the State
Court; which objection the court in part sus-
tained, and rejerted the record so offered in
evidence." In this, we think, the court erred.
We do not pert'cive any well-founded objection,
in any point of view, to the admission of this
record for the purpose for which it was offered,
viz., to prove the declaration of Domingo
D'Arbel under oath, that he was a Spanish
subject. It did not in any manner affect the
rights of sny other party to the judgment, and
■was no more objectionable than the [*701
deelarBLioQ or confession of D'Arbel, made is
any other manner or on any other occasion.
But it did not lie in the mouth of D'Arbel to
object to this evidence as a part of the record
of the District Court of the United States. It
was his own act placing it on the record of that
court, and that record was duly authenticated
according to the act of Conjiress. This docu-
ment or record, as it is called, begins with the
following caption or memorandumi "United
States of America, Eastern District of Louisi-
ana, ss. Be it remembered that on the 24tb
day of May, in the year 1817, into the District
Court of the United States in and for the then
Louisiana District, came Domingo D'Arbel, by
his attorneys, and filed the following transcript
or record, to wit." Then follow tbe record
and proceeding in the State Court, containing
the petition and affidavit of D'Arbel th«t he
S79
701
SOPUBMB OOUBT or TUB UNITED STATU.
«u K SpanUh aubjeet. Thus It will be Men
that thiji record or proceeding in the Btate
Court, wan introdured into the United States
District Court by D'Arbel himself, aa the
^oundi upon which he claimrd a right to
hare hii cause tried in a court of the United
States. It was therefore evidence offered bj
him originally tn the District Court of the
United States, and it doea not lie with him now
to s«7 that that record was not duly authenti-
cated, when introduced by bim into the United
States District Court. It was not offered in
evidence in the present case as coming directly
from the Rtxte Court; and all objpctions to the
au then ti rat ion by the clerk of the State Court
were, if well foundeil, misapplied. This rec-
ord, as offered to the Circuit Court on the trial
of this cause, came from the District Court of
the United States, and the proceedings and
oath relied upon, were then introduced by
D'Arbel himseif.
Whether the Kstrict Court of the United
States was bound to receive this as satisfactory
evidence of the right of D'Arbel to remove
the cause from the l^tate Court, i» not at all
materia). It was rccpived by the United States
IMstrict Court aa sufhcient, and the cause was
removed and proceeded in accordingly. But
there can be no doubt that the United States
Court had a right to examine and decide for
itself upon the grounds on which D'Arbel
claimed to have his cause removed into the
United States Court. Tliat court had a right
to decide upon its own jurisdiction and remand
702*] the cause, if sufficient grounds 'for a
removal were not shown. It cannot surely be
in the power of the State Court to compel the
United States Court to assume jurisdiction.
The third exception on the part of the de-
fendant is to the ruling of tbe court upon the
plaintiff's prayer, which is as follows: The
evidence having been given, as set forth in the
two prior exceptions by the plaintiffs, which
is to be considered as forming a part of this ex-
ception, the defenilant, farther to support the
issue on the pica in abatement, gave in evi-
dence by competent witnesses that the said
D'Arbel declared himself to have been a native
Frenchman, and born near the borders be-
tween France and Spain; and that the said
D'Arbel, mentioned in the foregoing evidence,
is the same D'Arbel mentioned in the com-
mission aforesaid. Thereupon the plaintiff a
prayed the court that if the defendant offers no
other evidence on the issue joined on the de-
fendnnt's plea of abatement than there is now
l)efore the jury, that then the plaintiffs are en-
titled to the verdict, if the jury believe the
plaintiff's' evidence. Which prayer was grant-
ed by the court.
This prater is rather obscurely stated, and
the real point intended to he raised is not very
apparent. Evidence had l>een given both as
to the defendant and plaintiff, and tbe prayer
would seem to ask the court to instruct the
Jury that the plaintiffs were entitled to the ver-
dict if the Jury believed the plaintiffs' evidence,
and the court so instructed the jury. If this
is the interpretation to be given to the prayer,
the Instruction was erroneous. The evide'nce
given by the defendant was taken entirely from
the consideration of the jury, and the verdict
WM nada to depend upon thair belief ol the
plaintilTs' evidence. But the dncision npOB
this exception is not very important, as it will
not affect the result upon the present writ trf
error, and it is not likely it will arise in the
same form on another trial; and this remaric
applies to the two remaining exceptions on the
merits arising on the accounts offered In eri-
dence, and the decision and instructions given
by the court thereupon. Questions of law and
fact, growing out of the prayers and instruc-
tions on this part of the case, are so blended,
and presented in such a shape, that it is ex-
tremely difficult to decide upon them; and ■•
the cause must go back, and as these matten
may not be presented on 'another ['7 0S
trial under tbe same aspect, these quesUona
may Iwcome immaterial, and we pass them by
without any decision.
Tbe judgment of the CSreuit Court ia rererBed,
and the cause sent baok with directiona to iaana
a venire d« dovo.
This cause eama on to be heard on the traa-
script of the record from the Circuit Court of
tbe United States tor the District of Maryland,
and was argued by counsel ; on consideration
Court in tills cause be, and the same ia hereby
reversed, and that this cause be, and the aama
is hereby remanded to tbe said Circuit Court,
with directions to award a venire facias de ih)t&
•Ex-parU GEORGE MILBUBN. ['Vad
Habeas corpua.
Habeas Carpus. Aa the Jurisdiction Of the Bih
preme Court fs appellate. It must be shawn to tha
court that lbs court has the noiver to sward a
halieai corpas before one wilt bt grauted.
Qeorge unburn was Imprlioned Id tbe Jell of Hi*
Countr of Waiblngton upon a bench wsrraut Is-
sued by the Circuit Court ot Ibe United States tor
the District ol Colombta, to answer an Indictment
penniDK against him tor keeping a lani bank, an Ot-
tense which, b; ao act ot Coudress. la pnnlshabl*
b.v Imprlaonment at bard latior In tbe penitentiary
of tbs district- He bad been arrested on a romer
capias Issued on the same Indictment, upon which
be gave a recqgBlcancs of liall. with sureties, tr
anm of £100 Maryland curreDcy. according t"
statute ot Marr'--' — '— — ' —
rfand, conditioned to appear In
rn day of the process, etc. Re did
not appear, and the recogDliaoce was torielted.
and a scire ficlss was Issued against him and bla
iretles, returnable to December Term. 18S3.
catloi
1834. anothir
vrlt of capias w
s Is
sued agalns
. 11
31.0
which he was arreatad.
nd from which
discharged on a
Bbeas corpus by
tbe
re ot tbe Circuit
Court. OD tbe gr
ound
rlt ot capias ti&
ropeVly issued.*
Da
ra of
thia discharge bv
he msrebal, a 1x:
Bt waa Issued by order
f a majority ot
the
udg
s of t
e Circuit Court.
„. . >..- - obtain bla
dlnrhnrce. Held. tOBt he was properly tn custody.
The rule tor tbe habeas corpus was refused.
Nora. — As to hat>eas corpus. ■•• DetH to 1 Ih
ed. V. S. 491 ; B« I., ed. U. 1. 4M : W L. sdl. 0. a.
184 t 43 L. ed. D. B. 02.
tUi
EX-PABTB MlLtDUI.
104
bodj of George Milbum, in confinement Id tbe
jail of tlie Couutf of Washington in the Dis-
trict of Columbia.'
The ct^sB, as stated in the opinion of the
court, waa an follows-.
"This is an spplication to the court by peti-
tion for a writ of habeas corpus to bring up the
bodj of George Milburn, now imprisoned in
the Jail of Washington County in the District
709*J of 'Columbia, upon a. bench warrant
issued ag>insl him by the Circuit Court of this
.district, tb arrest him to answer to an indict-
.ment now pending in the same court against
Ihim for keeping a faro bank, an oRense which,
iby the Act of Congress of the 2d of March,
J831 (eh. 37), is punishable by imprisonment
:and labor in the penitentiary of the district.
The main grounds for tbe application (for it is
inot necessary to go into the minute facts), are
^^t the party was arrested on a former capias
lissiied on the same indictment, upnn which he
'pve a recogniianee of bail with sureties in the
-sum of 100 pounds Maryland currency (266
■dollars and B7 cents), according to the statute of
Maryland, passed in October, I7S0, ch. 10, which
.is in force in this district, conditioned toappcar
lin court on the return day of the process, to at-
.t«nd the court from day to day, and not to de-
ipart therefrom without leave of the court. At
tbe return day he did not appear, and the rccog-
jniaanee waa forfeited, and a scire facias issued
.against him and hia sureties, returnable to No-
-Tember, 1883. At tbe same term, another writ of
.capias on tbe indictment was issued againat him,
returnable immediate, which was returned non
•est inventus. Afterwards, in June, 1S34, in vaca-
tion, another writ of capias was issued by tbe dis-
itrict attorney upon the same indictment, return-
:able to November Term, 1831, upon which the
;p«rty waa arrested, and from which, upon a
writ of habeas corpus, he was discharged by
.Mr. Oiief Justice Cranch, of the Circuit Court,
:upon the ground that the writ of capias im-
iproperly issued. The marshal having returned
:thia matter specially to the Circuit Court at
the November Term, 1834, upon motion of the
■district attorney the present bench warrant was
isaned by order of the majority of the court,
:an<] upon which the party is now in custody."
The ease waa argued by Mr. Brent and Mr.
Jone* for the relator, and by Mr. Key, district
attorney, contra.
Flrat. Whether the bench warrant, under
which the relator is in confinement, is legal.
Second. Whether the case had not, previoua-
lOI'l ly to the issuing *of the bench warrant
been finally adjudged by a competent tribunsl.
The attention of the court is requested to the
tint that the process is not an alias, but appears
aa an original proceeding. It is in the same
tcnn with the first process, and is entirely
novel in its character, in the courts of tlip
United States, and of England. An alias a|.
waya isanes after the return of the first writ, aa
having been inoperative.
This ii not sanctioned by law or fonetice.
4 Chitty's Criu. Law, 213-217, 224, 225; 4
Bum's Justice, 48, 49. In Dalton on the du-
ties of Shrriff, it is laid down that in criminal
eases, where an indictment is found, the prac-
tice is to ibHue a cBpiss, then an alias and a
pluries writ. If this is the law, the writ in
this case was illegal, and did not autborize the
marslisl to take the relator, and his imprison-
ment ia illegal.
There is another objection to the issuing of
the writ. When it iseued, there was no such
suit in court. The United States had, by tludr
own act, discontinued the case. 4 Bum a Jua-
tice, 42.
The principle established by this court in the
case Ex-parte Watklns, 7 Peters, 668, that no
one can be twice arrested for the same cause,
entirely protects the defendant from imprison-
ment after hia discharge by Mr. Chief Justiee
Cranch. No other writ, not an alias, can be
issued, after that discliHrge. 1 Tidd's Prac-
tice, 196; 4 Butt. 2fi02; 3 East, 309; T Petera,
568.
In the case before the court, the record shows
that a capias issued on the indictment againat
Milburn; that he waa taken by rir ue of it, and
he was thus in the custody of the law before
the Circuit Court. He waa afterwards, by the
judgment of the Chief Justice of the court,
the case being regularly before him, discharged.
The United States had their remedy upon the
recognizance given by him and his sureties;
and the case, as to all others matters, was out
of c
Under the law of Maryland of 1780, ch. 10,
when a defendant is in custody for an olTenae
found by an indictment less than felony, tlie
Hhcriir must take bail in leas than £100. Tbe
ciipias is returned with the recognisance; and if
lie does not appear, the recognizance is prose-
cuted to judgment. Although the keeping
a faro table is punishable by imprisonment
*in the penitentiary, yet it is not a [*TOT
fe'ony. The relator, having done all the law
required, on the original capias, he could not
be required to do more.
After the most diligent search into prece-
dents, and a reference by the Chief Justice of
the Circuit Court to the most distinguished
niembers of the bar of Maryland, no case has
been found where the principle has been as-
serted and maintained, which is claimed by the
United States. If the law was otherwise, a
vase would have been found to mnintsin it.
The law of Maryland requires that the recog.
nizance shall be sued out. It aays nothing
about farther proceedings against the defend.
ant, who has suffered the recognisance to be
forfeited. It is dilTerent in the case of felony.
Within forty-four years not an instance has
occurred in the courts of Maryland where an
alias capias has issued in a case less than
felony. All the counsel at the bar of Maryluid
appeared to have considered that, under the
Act of 1780, everything that could be done, on
the neglect of tbe person charged with a mis-
1. When tbe pelltion In this
•n tbe pel
ourt. a Babeas corpus waa asked .. __ ..
iDpd. snd It was proposed to srjiue the question of
tte rlsht of tbe Ktlfloner to hU discbarge, on the
return of the habeas corpus.
.( be shown that the et
eorpas sbonld a
iB granted to show cause whj a hslaas
T07
boraBiiE CousT or tub United States.
demekoor to sttend, w*a to forfeit the reeog-
niUDce and sue it out. The opinion of iAi.
Qutl Justice Cranch, who has been familiar
witb tlie law and praclice of Maryland for
Tortjr years, and who ii the Chief Justice of
the Circuit Court, delivered in this case, ia
tefelred to, and it will be found to Hiutain
Uteae poBitions.
The last reason why relief should be given
ta the relator is tbat the discharge by Judge
Cranch, the Chief Justice of the Circuit Court,
during vacation, is a res Judicata between
the United States and the prisoner. Under the
act of Congress organiung the courts of the
Uetrict of Columbia, the Chief Justice in
vacation acts as, and has all the powers of, a
circuit Court. The act of Congress gives him
ttie power to award a habeas corpus; and bis
discharge of a prisoner brought l>efore him is
ft bar to another arrest, in the same manner as
if it had been given by the Circuit Court
during its cession.
Hr. Key, for the UniUd States. It is not, by
/ an alias eapii
eeedliu to adopt any practice to bring in a
defeiuuDt. Original wnta of capias are issued
form of proceeding, as, under the law of Mary-
land, there is no such thing as "outlawry."
Mr. Justice Stoiy stated that, as he under-
stood the counsel for the relator, it is con-
tended that wherever there has been an arrest
for a misdemeanor, and a recognizance entered
for the olTense.
Mr. Justice Thompson. Is it possible that
the law of Maryland considers that where
tbere has been a forfeiture of a recognizance in
a case less than felony, it is in the nature of a
penalty paid for the offense T
Mr. Key. This is the doctrine claimed by th«
Mr. Bient read the act of Assembly of Mary-
land before cited.
Mr. Jones, for the relstor.
Tbe court is referred to the opinion delivered
bj Mr. Chief Justice Cranch, for the local
laws of Maryland, under wliich proceedings
on criminal cases are conducted in the County
of Washington. In that opinion the court will
also find a statement of the practice in such
cases. They are as claimed by the relator.
This case rests on the highest principles
known in tbe administration of justice — that no
one is to be twice puoisbeU for the same of-
fense. In England, when there is a second ar-
rest, the recognizance is always released. No
eaae baa been found except where there has
h«en an escape, where, if a bail bond, or a
recognisance naa been given, you may take
■gain. The exception in the case of esceiie
•hows that, in general, there is no such
right.
The arrest in this case is not only irregular,
but it is a contempt of the law. The party
who has been twice arrested was in actual
anstody at the time of tbe second arrest. He
was under bail, and bail, by the authorities, is
nothing mora than "a living prison," in wluch
MS
the party is kept; there ia, ■therefore, [*Tt*
no reason why an authority should be ftp--
duced to show tbe present imprisonment Il-
legal, the defendant lieing in the custody of
his bail under his first recognisance, although
it has been forfeited. The fint reeognitanea
should be remitted, or he will be twice punished.
What is the difference between a civil smd
a criminal action, when the defendant bjsa
been admitted to bail? A dvil suit for tbs
same cause of action cannot be instituted aft4r
bail given, unless after discontinuance of tbe
prior suit, and a discbarge of the baiL This
action on the bail bond must be against all tha
parties who have become bail, unless under
special circumstances. Saundera on Pleading
167; 13 Johns. Rep. 424.
In Virginia the practice is different by »
special statute, but, according to tJia CMnmon
law, the default of appearance is an inseparabla
bar to another action on the original caae. If
there is no statutory provision to tbe eontraiT,
the operation of bail m both cases will be tha
same. When you admit to bail, eo nomiaa,
you admit all the consequoicea of baiL S
Cbitty's Bep, lOB; HJghmore on Bail, 200.
A scire facias issues aUka in criminal m ix
civil cases. Tha Legislature of Maryland, in
fixing the amount of bail to be taken after
arrest for a misdemeanor, have taken an aver-
age of the sums to be required in all suck
cases. They have considered the justiee of
the State as satisfied by the amount so fixed.
In England tbere is a wider discretioni but in
Maryland it may be leas, but oannot be greater
than £100.
This court, in review of all the autboritiea
cited, will be satisfied that wherever there has
been a suit on a forfeited recognizance, a seeood
arrest cannot take place without a discontin-
uance of the suit. This has not been done in tka
case now before the court. The contrary prae-
tioe comes witUn the rule, that no one shall be
twice punished tor the same criminal actian.
Mr. Justice Story, after statiug the facts of
the case, delivered the opinion of the courtj
The points ptincipally relied on at the argu-
ment are, in the first place, that the party is not
liable to be arrested to answer the indictment,
after having given a recognizance of bail,
'although the recognizance has been [*110
forfeited, and the party has not appeared and
answered, and been tried on the indictment; in
the next place, that the discharge upon the
habeas corpus before Mr. Chief Justice Cranch
is a bar to any subsequent arrest.
We are of opinion that neither of these
grounds can, in point of law, be maintained.
A recognizance of bail, in a criminal case, is
taken to secure the due attendance of the puty
accused to answer the ind>ctment, and to sub-
mit to a trial, and the julgment of the court
thereon. It is not designed as a satisfaction for
the oHense, when it is fcirfeited and paid; but
as a means of compelli-.ig the party to submit
to the trial and punishment, which the law
ordsins for his offense. And, a fortiori, it can-
not be deemed to apply to a case like the pres-
ent, of a penitentiary offense; for that wotild
be to suppose that the law allowed the partj (»
purge away the offense and the eorporealpub -
ishment by a pecuniary compensation, llw.'a
Peters ».
MiTciiBL R AL. T. The Unitbd Statu.
b nothing, fn oinr opinion, In the Mnryland
■Utut« of 17B0, ch. 10, to change this eonatruc-
tion of the law.
The otlier ground ii alBO nnmaliitaiiinble. A
dbehkrge of a party under a writ of haWas cor-
pus from the proceaa under which he it impiiB-
oned, diachargca him from any further confine-
BCTit under the proceas, but not under any other
piu.esB which may be iwued ag^nst him under
the uune indictment.
For these reaeonE we are of opinion that tlie
party ia rightfully in custody under the bench
watrant of the Circuit Court, and therefore that
the petition for the vrit of habeaji corpus ought
to ae denied.
The rule, therefore, to show cause it dia-
fharged, and the mot-on for the habeas corpua
■ ovsiruletL
Tll'l •COLIN MTTCHEL, Robert Mitchel, In
hia own right, and as assignee of the eatate
and effects of the mercantile bouse heretofore
trading under the firm of Camochan & Mitch-
el, and aa trustee of the creditora of said firm
and ako of Richard Carnocban, Willi am
Older, Benjamin Marshal!, Benjamin W.
Rogers, John P. WilliamBon, the heirs and
legal representatives of John M'Niah, de-
eeued, and James Innerarity, Appellants
THE UinTED STATES.
ItaA titles tn Ilorida — construction of the
treaty of cession and of acts of Congress-
law of oations — property rights of individuals
in ceded territory Indian titles — grant from
Lt^ana — no new evidence to be considered in
•ppellKte court*.
ft Sum before the cession of Florida bj Spsln
tfc* Doited States: cooBrmed.
It was objected to the title claimed In this cue,
wlileh bad ttecQ presented to the Superior Court of
Ulddls Flortds. nnder the proTlslons ot the acta ot
Caacreaa tor (be aettlement of land claims la Flori-
da, Ibat the Kraotees did not acqalre, uoder the
Isdian sranta. a lecal title to the laod. Held, that
Ike act* ol CoDgresa iniDblt these clalrsa to the sd
tsdKatlon of this cODrt aa a court of equltv : aad
those acts, aa often and UDlformly construed In Its
repeated decision, confer the same Jurisdiction
s»r Imperfect, iDCboate and inceptive titles, as
tml and perfect ooes, aod require the court to de-
ne br the same rules on all claloia submitted to
K, whether legal or equitable.
B^ the law o( DBtlonB, the Inbahltants, dtlsens,
M subjects of a cDuquered or ceded country, terrl-
tor*, or province retain all the ridhti nt property
»Uch hare not beeo taken from them br the oc-
den ot the conqueror ; and this tne rule by which
we niwt test Its efficBcjr accordlni: to the act of
CSBgress, wUcb we must consider aa of Undlna
asthDcltj.
deed or grant bj o
of the
', been atanted
A treaty of cesslc ,
erelgn to another, which
which he bad no right ot pr
rlfiht aa he owned, and couft ___ _, „
By the trealT with Spain the L'nKed States ac-
quired no lands In li'lorCda la which any persOD had
lawfully obtalued such s right, by a perfect Jt in-
choate title. Uiat this court could consider It aa
property onder the second article, or which bad.
-- tbt stlpulailODS ot the eighth article
^ ^ .... ... ■--.fill iuthorl-
1 their broadeat
as [D comprenena au lai-' ' ■-
ImpHfect:" ""* "■''•*"
The effect at the clauses ot the conBrmatlon at
grants made was, that they conflrmM them pres-
ently on the ratiacatlon of the treaty to those In
poBsessloD of the lands : which was cfectsred to b<
that lesai seisin and uosse«Blon which follows title
Is CO eiii.'n!ilTe with the rigbt and conlluues till It
Slon under the terms at the elKhih article, and the
ratlBcatlon by the klug. with on eiceptloa ot the
three snsulled grants to Allegon, I'ui " '
and VarBsB, can malf " ■'—
made by the lawful
„ NoTT— As to Indians', title of. to lands within
be Onlted Slater see note to a I., ed. C. B. 484.
Cltliena ot a conquered ' ' "
"■- -1-1..- .. property i
T. United Btatairantitl'TL'"
authority ot the cruwn
Eresaly reco^lses the e:
lotltles In the ceded i
other eatept Ions ot graota
norltlea of the king.
— - ■■lawful Buthoritles"
mpi-tent authorltlcB"
ken to be "Dy those
inllng power by the
le el;.'ht1l Brtlcle ei-
^le°s. de™gnatlng ?he
e been aanctloned by him, aa exlaling auliiorlsed
5 to this court to adjudl'-ate
,- by the
light hsve t>een perfected Inia
conformity to the
'blB Is an express
'8 them within a
11 amrn
yield to the a
les, which f - -. _ _
: uaage thus aaicd and protected ; aod this la the
lie by which Its emcBcy must lie tested, according
> the act ot Congress which must ba conBldered of
lading authority.
In the case of The United States v. Arredando, 6
d the I
BQ^ occupation of the Allschua
■eot II
rerted t>
Indian
aeied t
;of
the
r Ihe common law, the king haa no rigbt of an-
>□ lands which Is not common to bla subjects ;
king is put to his Inquest ot offlce or Infor-
jn ot Intruilon, In all caaes where a aubject H
put to his action ; their right la the asme, Uiough
the king has more convenient remedies In enfot-
' Lg hiB. It Ihe king haa no original right of paa-
Joined so sa to 'snnei It to hia domain.
The United States haye acted on the same ortn-
Iple In tbe various laws which Congress hsve
eased In relation to private claims to lands In the
'lorldas; they have not undortalien to dedde tor
bemselvta od tbe validity of auch claims, wlthont
sa»
the pnrloDi aetloD of n
ijl eolor ot > SpsQlib grant or 111
T18'1 ■»ny lands as part of tbi
tawa wmch plM Jiirlsdlctfon to
SunBuB Camr or
« trtbunil. spKUl or }a-
"• — ' — * — eotrj to b«
TBI UtlTTED SXATHL
proclHorattan ot tbe m
, ot"-- - --*
— ch 1
(heir p
I tM prociHoratian or tbe toTenior In taHsi nraii i
I sioa oC the province* ; and br tbe acta of Con^n^
bich aasui'ed all the Inbaliltaati of protcvtloo Id
.,'!«'''^
Ich glvt
o( tbe terrlEork_ ._ ___ _ __.
and to thia on appeal, prescilhe tbe mode hy ivhJcli
landa wblcb bavc been poasGased or claimed to bare
been granted purauaat to tbe laws ot ijpalo, aball
become > part of the aational domala ; wblcb. aa
declared In the seventh section of tbe Act ot 1824,
li a "QDa! declHlon atcaiaat an; claimant purauaat ;
to any of the pcovlslona of '
il.'ipat
^IsMi
f these treadea, lawi. ardloaacca and
egulatlons to decide that the Indian*
< be maintained In tbe eojoyment uf all
-'■-b they could have enjoyed under
either, bad the proi
of their spirit, meanlujc ai
iDlunctlon of tbe law uni
which makes the. slipula
e uniform r
Miled In the i
- ■■ - '-Ids
BHtlab provlDcea In America b; «..!cb Indian lai:
were held and sold, from tbelr Brat aeltlement. as
appeara by their laws — that ttlendli Indiana were
pi'OIeeted in the poaaesilon of the lands they ac-
e-Died, and were conKldered aa ownlns Ihem by a
perpetual rleht of ponsepsloa In ttie Irllw or nntloa
feneration to geDeratlod. not aa the right of the In-
dlvlduala locaTed on parllcular apota. Subject to
this right of poaaeislon, tbe ultimate fee was In tbe
crown and lla granteea. whi(h could be granied by
tbe crown or colonial legislatures while tbe lands
remained In poaaeBslon of tbe Indiana; (bouKh
poasesaloii could not be taken without their con-
Individual a could not p
without prrmiiBlon or 11 cent
acribed by colonial laws; bu
ineress. ao far aa either t
indard rulea for Ita decisi
The tieatlea with Spain a: _ __
lulalllon of li'lorlda by thr> Uiilied S
1 KOBlan
Indian
a them, wen
1 ubicb they
tbelr buntlne-^grouDds were as mucb lb (lii'h actn'il
poaaeasloD- aa the cleared fields of the whites, and
tbelr rights to Its exclualve enjoyment in tbelr
respected, until they aluindoned Ibpm, made a cex-
■lon to the government, op an aufhorlied sale to
IndlvIdualB. In either case their riubta became ex-
tinct, the lands could he grant.-d dlseocumbereiJ of
tbe right of occupancy, or enjoyed in full dominion
'- "e pnrchaaea from the Indiana. Such was the
e of Indian landa by tbe lawa of Massai
■etta, Connecticut, lihode' li
ind. Ni'W Hampsb
t Stanwli, bnve been
Grants made by the Indians at public c
aince the treaty ar " — " '- "--— "--
directly to the pur
•■- '-nij lies, in tl
ivey to them. „
s of large tracta io aold and held, i
In New York.
It waa an unl venal rule tbat purcbaaei
chases made a
the treaty.
e United States
"tf^MloSl™
1>1 X
■i by tbe Halted SUtea ;
iviio luuB oecame me pioiectors of all tbe rlfihta
they bad prevloiialy enjoyed, or could ot right en-
Joy under Creiit Britain or Spain, aa Individuals or
□Btlonn, by aoy treaty to which tbe United Statea
thus became parties in 1803.
The Indian ilEbt to tbe landa aa property «a>
not mprr-ly of posaesslon. tbat of alTenailon wv
coneomllant; both were equally secured, protected
and gunianteed by (ireat Uritalb and Spain, sub-
.__. __... .tiacatlon and coaflrmatlon liy the II-
■ 'i from (be governor Pi>pre»eiit-
3 pay the
t for tbelr
ot the con aider
(IlU'ia
ot thi
go vera men t
u willlne
hem t^ tbe only meaaa In thel]
il their landa, wKhbold an assent to tne purcuaw.
vhlcb by their lawa or municipal resiilatlutiB wak
adopted by Great Britain In any of her coloolm.
■old their lands, to hove the fleeda preac _
ttovernor tor contormation. The aales by the In-
dians transferred the kind of right ublch tbry
po9>jesaed ; tbe rallflcnilon ot the sale by the Eov-
emor must be reeai-ded aa a rellnnulxbment of tbe
title of 'Che crown to the purchaaer, and ['TIS
been "ri^fuiied. or the rejection of an Indlao^aale.-*
In Ihe preaent case the Indian sale has been con-
Brmed with more than usual aolemolty and pub-
public council and
reatlon of the Indiana
h Ihe king
...jeS adopted, nuu >u<:
h parties to the treaty of
■ty. ai
enslon
ilcb tbe Unlt-
The United
chase, wfaleb
-^ ■ pelltloD-
' tboae from wl
no stipulation < ,_.
9t than any others and tl wi
1 services to (be klua and bis prederessor, bad
luatlce as bta taitb. But If
tbe fai
did not estatHlsh
belief. It
bad tbe right toRrant them at
bla pleaeurc, or by his authorised offlcers.
When the United States acquired and took pos-
aeaaion of tbe Florldas, the treaties which bad been
made with tbe Indian tribes before the acquisition
of tbe territory by Spain and Great Britain, re-
mained In force over all the ceded territory as tbe
lawa wblch regulated tbe relationa with all the
Indlaaa who were partiea to them, and were bind-
ing on tbe United Btates by the obllgalloD they bad
aaanmed by tbe Louiaiana Treaty, as a supreme law
ot tbe land, which was Inviolable by the power of
Congren. They were also binding as a fundament-
al law ot Indian rights, acknowledged by rovnl or-
dera and mnnlclpal ragulatlons ot the province, aa
lbs laws and ordinances ot Spain In tbe ceded prov-
iDcea, wblck wen daclared to continue Is (orcr *—
IS4
ntter ot apeclllc and Judlcli- „
rould be presumed as n matter of law arising froia
he tacts and circumstances ot the caae, wblcta «
admitted or unquestioned.
Aa heretofore decided by this court, tbe law pi
amea tbe exialence la tbe provinces of an ofHc
_ithorlied to make valid granta ; a fortiori,
give license to purchaae and to conflrm ^ and L
freaty deslEnatea the Governor ot Wcat Florida i
the proper oOlcer to make granta ot Indian lan<
It Florida ti
. original ,
t Florida to graui
\:s\
seaalon ot sUty years, or i
Df crown lands for forty
The length of time w>l
., — „_. r option of a grant, ebarter. or
to vallduts a right long eojoyed, Is not
depending on Iti peculiar circa matanc««.
PeMra ».
uu
Uitcbh. n au t. Tom Uhiibi Stuvi^
AKbt the rut bad bno follT hMrd In tb« Ba-
Berloi Court or Uiddle Klorlda, tbe Judn ot that
Bonrt. U cxamlnlae ttia cridencs In the cua wltb
> Tie* to Ita drclsToD, conaldercd that be bad dis-
oarand la the date oi tbe water-mark In tbe papel
■B_irtilck ODf of tbe original Bpanl" '
wblcb brouijbt
Ing tbe
aTrameDt ot the cauee; and after the luppoted
ducoverr. no apportuuItT waa permitted by the
Conn of Florida to tbe clalniantB to explain or ae-
COnnt tor tbe same. After tbe appeal bad been
docketed In tbls court, the aopellanta aaked p«r-
■liaakid to aend a commlaslon to procure teitlmonT,
wblcb it waa alleged would fnllr explain the eir-
* olrered to read ex-patle dcpoaltlona
to tbe aame p. , ._.
Bt TBI Conta : Thlt la n
upetlate court, no new e '
recelTed wlthoot Tlolaf--
ol eTldeoee. Under a
recelTiKl wlthaat riolatlna ttw^Mt«ataUlsbed n
tillon
■ ■"?! "'
inMclpate' li'the ii
be dealing to the petilloner a measure oI lualke
ineompatlbte with eTeir principle of equllT, to vis-
it npon hl« title an objection wblcb the ' '
imprtled
vldeDCe.
tending *to eata
APPEAL from the Superior Court of Middle
FloridA.
The appellants, on the IBth day ot October,
1128, presented to the Superior Court of Mid-
dlo Florida, their petition under the authority
of the sixth section of the Act of Conf;resB
BMaed on the 23d of May, 1B2S, entitled "An
Act aupplementary to the several acta provid-
ing for the settlement and conttrmation of the
private land claims in the territory of Florida;
■od of the Act ot 1B24, referred to in tbe said
act, authorising claimants in MisaouJ
Btitut« proceedings to try the validity of their
title*.
The appellants claimed title to a tract of
land containing one million two hundred
tboDsand acres in the territory of Florida, the
greater part of which was situated between
the rivers Appalachtcola and the St. Mark'
comprehending all the intervening sea-coai
and the islands adjacent.
The title was asserted to be held under deeds
from the Creelc and Seminole Indians to Panton,
Lealie ft Co., to John Forbes & Co.. and to
Jobn Forbes, and confirmed by the authority of
Bpun.
These lands, the petitioners allcced, were
■ranted by the Indian tribes, as an indemnity
irom the Spanish government and from those
Indians, for losses sustained by them In prose-
rating m trade with the Indians, under the
ipcdsJ and exclusive license of Spain.
The Indian grants were dated on the 2Gth
Hay and the 22d August, IBM, and the 2d
Ansiut, 1806, and were alleged to have been
eoiunned by Governor Folch, the governor of
the province.
The facta of the caae, and all the documents
ea which the title of the petitionera were
dklmed to rest, with the evidence in the case,
tn fnlly stated in the opinion of the court.
The answer of the district attorney stated,
that the commissioners under the Aet "for th#
■ettlement of priTate land claims, and for the
aeafonsatiOB thereof," wera iiiatruat«d to re-
irted, were, by the said
report, "admitted to t>e genuine." The tltl«
of the appellant is invalid. Congress did not
confirm or adopt the report of the commission*
eis upon this claim, but referred alt claims not
annulled by the Treaty of Cession, nor by the
or forginl, to the decision of the judiciary.
The cause was heard in the Superior Conrt
of Middle Florida, on the evidence adduced by
the petitioners and the United States and on
public documents, all of which were sent up
with the record; and was flnalty disposed of by
a decree of the judge of that court, entered on
the 2d ot Kovember, 1830, dismissing the pati-
The petitioners appealed to this court. The
appeal was entered to January Term, 1831.
At former terms of this court, on the motions
of the counsel for tbe United States, tbe case
was postponed to enable the government of 1^
United States to procure papers from Madrid
and from Havana, which were considered im-
portant and necessary in the cause. These
motions were always resisted I^ the counsel for
the appellants.
At January Term, 1834, the ease was eon*
tinued, under an order of the court that it
should not be argued before the 2d of Feb-
ruary, 1B36.
On the eth of January, Mr. Bntler, Attorney-
General ot the United States, moved the court
to postpone the hearing of the case until later
in the term than the day fixed for the same; al-
leging that the documents which had been ex-
pected from Havana had not arrived, and that
the government had despatched a special mes-
senger for them, whose return was expected be-
fore the 25th of February, during the term.
The court refused to hear the motion until the
case should be called, on or after the 2d of
February. Afterwards, on the Sth of February,
the motion was renewed on the part of the
United States by the Attorney- General, and
was overruled; the court not thinking it neces-
sary to hear the counsel for the appellant*
against it.
'The cause then Mtme on, and waa [*Tia
argued by Mr, White and Mr. Beirisn for tbe
appellants, and by the Attorney -General and
Mr. Call for the United States.
For the appellants, the following poInU wera
submitted to the court:
1. That the Indian sales of IB04 and 1811,
and the aeveral acts in confirmation thereof, by
the Governor of West Florida, vest in the
grantees a full and complete title to tbe land in
introveray,
2. That tbe King of Spain was bound, In
good faith, to indemnify the house of Forbes
ft Co, for the losses sustained by them in tikdr
traffic with the Indian tribes; that the satisfae-
of the claims of that house, which was ef-
fected by these sates, and the oonaequent re-
lease of the obligation of the King of Spidn to
indemnl^ tlwii^ oonatituted ft auffident con-
718
Sunuut Covn or the Unms Siatu.
U3S
•■deration to the Spaniih crown for anf right
of pre-emption or otherwise which it ir'~'~'
have hod in these lands.
3. That these sales, having been made with
the knowledge, assent and previous approba-
tion of the authorities of Louisiana and West
Florida; having t>een subsequently ratified and
confirmed by the civil and military governor of
the latter province; having been notified to the
Captain -Genera] of Cuba, and by him to the king,
and not having been disapproved by either, that
these several acts and omissions amount to ap
acquiescence on the part of the King of Spain
and his legitimate authorities, which, accord-
ing to the laws and usagea of that kingdom.
would vest a valid title in the grantees.
4. That the decision of the Captain-General
of Cuba, on the petition of John Forbes, set-
ting forth his title to these lands and praying
leave to sell the same, is a judicial decision up-
on the validity of that title by the highest legit-
imate authority of that captain-peneralcy, to
which West Florida was an appendage, and
cannot be drawn into question iu any other
tribunal.
5. That the grantees, and those claiming
der them, have had legal possession, in good
faith, by juBt title, since the date of the respec-
tive grants, which constitute a title by prescrip-
tion under the laws of Spain.
6. That the title thus subsisting in the grant-
es, by the aforesaid sales and acts of eonfirina-
Jl»'] tion, by the acquiescence, 'after notice,
of the King of Spain and his legitimate au-
thorities, by the judicial decision of the Captain-
General of Cuba, and by the right of prescrip-
tion, at the date of the delivery of the Floridas
to the United States, was a valid and legal
title, which was recognized and conGrmed by
the treaty of cession.
For the United States, it was contended by
Mr. Butlei and Mr. Call:
I. Admitting it to be true, for the sake of
argument,
1. That the house of Forbes t Co. bad ren-
dered importnnt services to the Spanish gov-
ernment, and had well-founded claims on its
bounty.
2. That the King of Spain was bound, in
ftood faith, to indemnify the house, for the
Kisses sustained by them in their traffic with
the Indians.
3. That the government of the United States
had knowledge of the existence of that house,
of its claims on Spain, and of the title on which
the present suit is founded.
4. That the vac.-.nt and ungranted lands In
the Floridas, even if the present claim be con-
firmed, will yet be more than the government
of the United States, at the time of the cession,
expected to receive; and,
6. That other equitable circumstances exist,
which entitle the claim to a favorable regard.
Still, it is contended, on the part of the Unit-
ed States, that no valid reason can be found,
in either or aU of these circumstances, for re-
versing the decree of the court below.
That decree must be affirmed, unless it can
be shown that the claimants, at the time of the
cession, had a legal right to the lands in ques-
tion; acquired either,
1. By virtue of a zrant or conceaiion, nude
before the S4th of Januarr, 1B18, by HIa Cbtho-
tie Uajesty, or by his lawful authorities; or,
2. By virtue of some other valid title, known
to, and recognized by the laws of Florida.
II. The most important of the suggcstioni
above referred to, vis., the alleged liability of
the King of Spain to indemnify Forbes & Co.
for their losses, etc., is not correct in point of
fact. Neltner the law of nations nor any special
promise nor any existing treaty, imposed on
him any such obligation. 'Besides, if ['ISO
such obligation existed, the duty of auditing
and settling the accounts belonged alone to the
intendency of the province; and the Spanish
government could not be bound for the pay-
ment of any particular demand, on the mere
admission of the Indians.
III. The claim, in the present case, though
of land within the territorial limits of the Flori-
das, does not profess to be founded on any
original substantive grant made by the King
of Spain or his otTicers, but on cessions mads
by Indian tribes, and on alleged ratifirstions
and confirmations thereof, and acquiescence
therein, by the Spanish autlioritieH. In this
respect, the present case dilTers from all the
cases hitherto submitted to this court.
IV. The Indian deeds to Pantou, I^slie k
Co. did not, either in themselves or with the
confirmation thereof by Governor Folch. con-
vey to the ^antees therein named, any legal
the Floridas, the absolute title in the soil,
all the lands described in the deeds, was. at the
execution thereof, exclusively vested in the
crown of Spain. Tile Indians by IhoHe laws,
were regarded as having no title whatever, ex-
cept in and to such tracts as were left in their
possession by the Spanish authorities, in con-
formity to the laws of the Indies; and no part
of the premises in question were so allotted.
2. If the title of the Spanish crown was quali-
fied, in respect to lands in the Floridas, bj- anv
Indian right of occupancy, that right existed
only in favor of such Indian tribes, if any, as
actually inhabited the lands, and as had not
previously surrendered it; and the Spanish
crown possessed the absolute and exclusive
right to extinguish it.
3. The Isnds in question were, in fact, at the
time of the cessions, vacant and uninhabited,
and therefore no Indian right of occupancy
could exist therein.
4. The original Indian right of occupancy, if
any ever existed, from the shores of the gulf,
as far as the flowing of the tide up the bays,
rivers and inlets, in the premises in question,
was extinguished by solemn compact between
the government of Great Britain and the In-
dians in the year 1763; and by the Treaty of
ITB3, Spain succeeded to all the rights of soil
and •sovereignty, previously possessed ['IU
by the British crown. As to the greater part
of the lands described in them, the Indian
deeds were therefore invalid.
6, The deeds were executed by Indiane, re-
iding, with a trivial exception, within the ter-
itorial limits of the United States. The cea-
ions were not the act of tho Seminole nation,
every town and village of which wmi Intereated
the Indian right of poHeasion.
Pcten •.
MrrcBEL n Ai. V. Thk Uaited Statbs.
T«
fl. The IiHlIana could not eell to the subjects
of Great Britain, Imid within the juriflJiction
of Spain, on which wu erected the fortress of
St. Slnrfc'B, then occupied and garrisoned by
the trmipa of Spain, Bud since ceded and deliv-
ered by the Spanish government to the United
T. William PantoQ and John Lealie, of the
house of Panton, Leslie &, Co., were both dead,
and DO such lirni existed in Florida as that of
I'lnton, Leslie &, Co., at the time of executing
the several deeds, and at the time of their con-
limiation by Governor Folch.
8. Panton, Leslie t Co. were foreigners.
They had not taken the oath of allegiance to
the crown of Spain, without which they could
receive no grant of land in Florida, from the
subordinate officers of the government.
B. There is no proof that the gOTernors-gen-
erat of Louisiana authorized or approved the
purchases in question.
10. The origmal acta of confirmation of the
Indian sates by Governor Folch to the bouse of
Panton, Leslie & Co., and to the house of
John Forbes A Co., have not been produced
by the petitioners, nor their absence satisfac-
torily accounted for. There is no evidence,
then, that any formal titles were given by Gov-
ernor Folch to the grantees for the land In
question.
11. Governor Folch had no power to ratify
and confirm the Indian cessions in question.
[D IteiHuse the power to ratify such ces-
sions was nut within the scope of his general
authority, nor had lie any eptcial authority to
ratify the same.
(2.) Because the lands, with a small excep-
tion, nere situated within the Province of East
Florida, and out of hib jurisdiction.
(3.) Because the royal order of 1798 vested
in the intendants the exclusive power of grant.
7*S*J ing and conceding ail kinds •of land;
and at the date of the supposed grants, Juan
\'entura Morales was Intendant of West Flori-
da.
V. If the titles executed by Governor Folch
eoBid be considered as original substantive
grants (which is by no means admitted), they
would still be invalid by reason of their repug-
mney to the laws, ordinances, usBges and reg.
nlations of the Spanish government. As to the
lands in East Florida, they must certainly be
invalid.
VI. The facts and circumstances attending
(bis ease, and relied on by the appellants, do
not amount to any such acquiescence on the
part of the King of Spain and his lawful au-
thorities as would, according to the laws and
DBsges of that iiingdom, vest a valid title in the
grantees. And all presumption of such ac-
quiescence is conclusively rebutted by the sub-
sequent grants actually made by the King him-
I exists in this
vm. The permission granted by the Cap
tain-General of the Island of Cuba to the houKc
of John Forbes Jt Co. to sell the lands in con-
troversy to Colin Mitchell, related only to the
lands described in the cession of 1804, and was
not a judicial decision on the validity of the
title. It created no estate either in the grantees
or tbnae claiming under tbem.
IX. Th« CaptainCeneral of the lalud of
Cuba had no jurisdiction over the lands in
Florida, The royal domain of Florida was un-
der the exclusive control and superintendence
of the Intendancy.
X. The various circumstances and arguments
relied on by the appellants being, for the rea-
sons above stated, each of them Insufficient in
itself to sustain the present claim, they must,
from the peculiar nature of this case, by equal-
ly insufficient In the aggregate.
XI. The United States have a clear title to
the fortress of St. Mark's and its appurtenan-
ces, which, even if the claim be allowed In oth-
er respects, must be excepted by definite bounds
therefrom, and should have treen so excepted in
the petition.
Od the 14tb of March, the case having been
argued, and the opinion of the court b<:ing
about to be delivered by Mr. Justice Baldwin,
Mr. Butler and Mr. Call, for the United States,
moved to postpone the final disposition of the
case until next term.
•The Attorney -General stated that ["ISS
the messenger who had been dispatched to Hav-
ana had on the day preceding returned to the
city of Washington, and had brought with him
documents of great importance to the just de-
cision of the case; and that information had
been received by the Department of State that
other documents, showing the action of the
government of Spain in relation to titles to
lands in Florida, were preparing in Havana by
the consul of the United States there, who had
been specially commissioned for the purpose,
which would be received before the next ses-
sion of the court. These documents were rep-
resented by the agent at Havana to be very im-
portant in the cause. The motion was oppi>sed
by Mr. White, Mr. Ogden, Mr. Berrien, apd
Mr. Webster, of counsel for the appellants; and
supported by Mr. Call and Mr. Butler. The
motion was held under advisement until the
1 7th of March, when,
Mr. Chief Justice Marshall stud:
The court has taken into its serious and anf-
ious consideration, the motion made on tbe part
of the government to continue the cause of
Mitchel V. The United States to the next term.
Though the hope of deciding causes to the
mutual satisfaction of parties would be
chimerical, that of convincing them that the
case has been fully and fairly considered, and
that due attention has been given to tbe argu.
ments of counsel, and that the best judgment of
the court has been exercised on the case, may
be sometimes indulged. Even this is not al-
ways attainable. In the excitement produced
by ardent controversy, gentlemen view the same
object through such different media that minds
not unfrequently receive therefrom precisely
opposite impressions. The court, however,
must see with its own eyes, and exercise its
own judgment, guided hy its own reason.
The motion is founded on the expectation
that by tbe next term admiesible evidence may
be obtained which will shed much light on this
cause, and change essentially its present char-
acter. This motion is opposed on the ground
would affect one of the parties most injurious-
ly, 'ud that no rational foundatimi ^'724
TU
SoTKUu Ootm OF nu URim) Statkb.
b UJd for tlie oirioton thftt new U)d Important
tdditioni will or can be made to the informa-
tion the record at present eonteins.
The cause was docketed on the 2d of Febru-
Kiy, 1B31. On the 2flth of the same month a
motion waa maue on the part of the United
States to bring on the case for argument at that
term. Tliie motion was opposed and waa over-
ruled. The reasons of the court are not recol-
lected; but the motion was ia opposition to a
positive rule, and muat for that cauae alone
have been rejected.
In March, 1832, the parties were willing to
bring on the cauae, but the court thought it too
lat« in the term to take it up, and it waa con-
tinued.
In 1B33 and in 1834 the cause was continued
on the motion of the attorney for the United
Statei, supported bj' the eome argumenti which
Are now urged.
This cause was commenced in the District
Court of the United States for the territory of
Florida, in October, 1828. The degree of in-
telligence which has been employed in prepar-
ing the record for a tinal decision, gives the
most absolute assurance that from the com-
mencement of the controversy, it must have
been perceived that the case depended essen-
tially on the sanction ^ven by the authorities of
Spain to the grants made by the Indians. It
wai perceived, and great efforts were made in
the Instrtet Court by both parties for the estab-
lishment of this fact. A vast mass of evidence
has been collected on it, and is to be found in
the record. An inspection of that evidence
goes far to establish the opinion that it cannot
be materially varied.
The government has unquestionably made
great exertions^we believe all that could be
made — to obtain any additional documents
which the case may furnish. No difficulty has
been opposed by the Spanish government to the
inquiries of the American 'agents. On the con-
trary, every fncility has hteu given to them.
We cannot doubt that the most important doc-
uments would be the most imm^ lately for-
warded. Those which have arrived have been
Inspected. They are not believed to vary the
caee; many of them are undoubtedly important,
but they were already in the record, and have
been considered. The transfer of all sales of
120*] CTOwn lands from the 'political to the
Treasury Depaittnent, from the governor to
the intendant, and the ordinance by which this
change was affected, were already in possession
of the court, and had been maturely considered.
liie documents referred to were chiefly in the
We are not satisfied, from the communica-
tions of the agent of the United States, that the
additional papers to which be alludes, and
which he hopes to obtain, can materially affect
tba merits of the case. With this strong im-
pression on our minds, we should not be justi-
Ded in granting a still farther continuance. The
opinion of the court will be delivered.
Hr. Justice Baldwin delivered the opinion of
the court:
The land In controversy !s claimed by the
United States in virtue of the Treaty of Cession
by Spain, by which the territory and sov
•ignty of the two Floridaa were MQuired,
consideration of (9,000,000, paid In extlngnUi-
ment of certain claim* of the citizens A tb*
United States on the government of Spkin.
Colin Uitchel claims, by deeds from various
tribea of Indians belonging to the great Creek
Confederacy, to Panton, Leslie &. Co., to John
Forbes A Co., and to John Forbes, confirmed
by the local authorities of Spain, whose right
haa become vested in him by sundry tueane
conveyances, to which it is unnecessary to refer,
as the regiUar deraignment of whatever title
was vested in the original grantees to the pres-
ent claimants is not questioned. Record, 30i.
The lands are in four separate tracts, extending
from the mouth of the River St. Mark's, out-
side of the islands along the sea-coast, to the
west end of St. Vincent's Island, west of the
mouth of the River Appalachicola; thence to
that river about five miles from its mouth, np
the same for many miles; thence by a back
line to a point on the western bank of the St.
Mark's above the old fort of that name, and
down the said river to the sea. It is unneces-
sary to refer to the boundaries of the separate
tracts, or the particular designation of the lines
and points of the whole body of lands, aa they
are not a subject of controversy in this caae;
the quantity, as estimated by the claimant, is
one million two hundred and Qfty thousand
acres (Record, 6); and by the Spanish officers,
one million three hundred and ninety-one thou-
sand arpents. Record, 224. The history of
the claim is this:
'The commercial house of Psnton, [*T2t
Leslie ft Co. had long been established at St.
Augustine, in i^ast Florida; it had extensive
connections and great credit in England, and
its operations were very great. After Spain
had taken possession of the Floridas, in virtue
of the Treaty of Peace in 17S3, the king, by a
royal order, gave them license to carry on and
continue their commercial operations in those
provinces and Louisiana. Record, 1M-IS7,
23S-Z81, 157-160. As they were an English
house, an oath of allegiance was required, which
was taken by Mr. Panton (Record, 127, 128)
and by Mr. Leslie, for himself and the other
members of the firm who were not in the prov-
ince (Record, 27G, 2S1, 282) in 1788, with which
the Spanish government was satisfied, as ■
compliance with the royal orders of the same
year. Record, 180-104.
The house conducted its affairs to the entir*
satisfaction of the successive governors -general
of Louisiena (Record, 120-129) and the local
authorities of the Floridas; rendered important
services to the crown; met with many and
great losses, amounting, by the estimate of the
Marquis of Casa Calvo, then Governor -General
of Louisiana, in 1800, to $400,000. Record,
125, 136, 147, 146. Five of his predecessora
had recommended the awarding some indemnity
to the house; they had made repeated claims
upon the crown, the justice of which had been
acknowledged by all the local authorities dur-
ing all the changes of administration (Record,
121, 122, 132, 133, 134), in their numerous die-
patches to the ministry, which had been sub-
mitted to the king. Record, 130, 374. They
concurred in representing to the king the great
importance and services of the house as a polit-
ical instrument of the government; that they
had a right to indemnity from the 'kiug; that
Pet«n •.
UiTCHlEi. » AL. T. Turn UmncD Bt^tMa,
tW dtuation of the houaa wu sucb, that thej
Biut >ink ucd^T their losset if it was not af-
tordnl: and that it tnuat be ■ualained and pre-
•erved aa indiapeuHble to retain anj control
over the Indiaju, and secnre the poaseiaion of
the provincei intrusted to their care. Record,
130, 139, 143-152, IGl, 2fi2-25T, 302, 680.
I« consequence of the repeated Bolicitationa
of the house to the king for compensation, a
roj-al order tras directed to the Cap tain -General
of Cub* OR the subject of the indemnities
proper to be given them; in reply to which,
among other propositions made hj the Govemor-
I27*] General of Louisiana, vaa a grant 'of
twenty leagues aquare of royal lands west of
the Mississippi, or a lo.in of $100,000 without
security. Itecord, 144, 145. Ibis shows the
MDse of that high oiGcer of the value of the
services of the house, the extent of their losses
in their exertions in favor of the government, .
with the measura of remuneration which he ,
eouidered to be du« of right in 1800. Record,
144, 147.
Among the losses sustained by the house,
was a large amount due by the Seminole In- .
diana prior to 1600, and for robberies of their
storea in 1702 and 18O0 by members of that
tribe, headed by the celebrated adventurer
Bowles, exceeding in all $60,000 (Record, 82-
iS| ; of which they were unable to procure any
payment from the Indians, but who had ex-
pressed a willingnesa to make compeneation by
a grant of their lands.
Early in 1TD9 the house made an application
to the Governor -General of Louisiana for leave
to purchase from the Indians as much land as
would satisfy the above claims, which was.
favorably received by both him bod his suc-
eenor. Record, 64, 60. Negotiations with
the Indians was followed by a deed of cession .
from them, in 1S04, of the large tract contain-
iag one million two hundred thousand arpents,
Kecord, 554.
Tbi* deed was confirmed as a general council
«( the nation and its chiefs held at Pensacola
ia 1B06, in the presence of Folch, Governor of
West Florida (Record, 508, 6B4, 500. 614), in
ill the form and solemnity which Indians could
Ee it. This governor had previously given
re to make the purchase on a petition pre-
vnted to him by the houM in January, 1604,
letting forth the circumstances of the case;
vbicb was granted on only one condition — that
they should not dispose of the lands without
■otice to and knowledge of the government;
and in December, 1806, gave his full confirma-
tiantothegnuit of the Indians made to Pauton,
Leslie & Co. Record, GS, 84. Another ap-
llieation was made to the same governor in
1B07 for hia permission to make an additional
pnrchase from the same Indians, which was
panted in December, 1610, on condition that
the house should cede the whole or part of the
lands to the king, if be should want them, at
the price at which they acquired them, and not
fispoae of them without notice to the govern-
awnc Record, 273, 274, 275. In the foTlowing
1SB*] 'year the Indians granted the other
tiaeta between the rivers Wakulla and St.
Mark's, including the fort, which was also con-
finned by the gDvcmor (Record, 606) at a great
Kbiic council of the Indians at Pensacola; this
et contained br aatlBfttiMiiiinatj-Hva&thou-
• Lad.
sand arpenti. At the same time another tract
on the ui-acoast, including some islands at and
west of the mouth of the Appitlachicola, was in
like manner granted by the Indians and con
firmed by the governor to John Forbes ft Co.,
the successors of Fanton, Leslie A, Co. (Record,
106), containing sixty-live thousand arpents.
At the same time and place there was granted
and confirmed to John rorbcs an island in the
Appalachicola containing six thousand eight
hundred arpents, for which no consideration
waa paid; the grant being a gratuity by the
Indians to Forbes, in consideration of his serv-
ices and friendship rendered and shown to
them for years before. Kecord, 217-224. It
ia not deemed necessary to recite more specially
the various original deeds from the Indians, or
those made in councils after the lines had been
marked which designated the boundaries of the
respective grants, nor the grants of the Gov-
ernor of West Florida, confirming them by
titles in form delivered to the parties; they are
in form and substance alike (Record, 28-106,
430, 447), and no question has arisen on their
Those of the Indians recite the considerations
which led to the grants, convey the lands with
a warranty of their title by ascertained bounda-
ries (Record, 39, 40, 49, 91, 96, 86, 93, 69, 82-
84, 20-36, 69, 63, S5-I0S, 662); those of the
governor ratify and confirm the grants in full
and direct dominion (Record, 37, 49, 91, 95, 111]
and in full property, put the grantees in pos-
session, and promise to defend and maintain it
(Record, 106, 137, 145), all of which he declares
is done by using the powers vested in bim.
Record, 75-91, 30-37, 99, 233, 234. They are
drawn up in great form; contain a perfect
recognition of the Indian grants, and give to
them all the validity which he could impart to
thfm. Record, IOC, 131, 175, 191, 193. They
are made in the name of the king, executed
and attested in all due formality, and their au-
thenticity proved as public documents, and by
the testimony of witnesses to the olTicinl signa-
tures. Record, 562, 579, 615, 620, 023, 646,
611, S12, 613-626. The claims of the house
upon the Indians *Ior debts due since [*T2*
1789 and depredations committed, were notori-
ous to the government and inhabitants of Pen-
aacola (Record, 273, 274, 63S, 690], as were the
purchases; and their confirmation by the In-
dians, at which two thousand are computed to
liBve attended in 1811 (Record, 602, 601), is
proved as a fact by witnesses present in the
dii'erent councils; so is the fact of the ratifica-
tion by the governor. Record, 579, 614, 616,
620, 623, 64Q. The original deeds, and the de-
marcation of lines and boundaries were made
(Record, 42, 43, 100, etc.) in the presence of
the commandant at St. Mark's (Record, 73, 97,
104, 106), exercising the ofliccs of lieutenant-
governor and sub-delegate of the intendancy,
or were approved by himi every act done in re-
lation to the cessions and their ratification,
from the first application to the governor-gen-
eral in 1799 to their consummation in I81I, was
public and notorious to both Indians and whites.
Kecord, 590. Governor Folch reported all his
proceedings to the Captain -General of Cuba,
uy whom they were approved, who declared
that the king would confirm them, and aa
•ome of the witnesses say, declared that be had
lit
m
SoiVEira Cotnrr or rmc UirnrD States.
oonfirmed them. Record, 228, 2S0, 232, 568,
672, CB4. 5B4. From tbe tfme of the first ces-
tlon in 1804, the Indiana acknowledged the
TftUdit]' of the grants, were satiatled with them,
uUed tbe land tbe white land, or the land of
the whites (Record, 60G) ; asked permiHsion
from the house to hunt upon them, and with
tVe exception of some occasional depredations,
respected their possessions and property. Rec-
ord, 619~B21, 023. Their title, too, was
aiutlly respected b; the local government, and
, the ofEcers of the king (Record, 234, 674,
624, 626); nor from him to the lowest does
there appear to have been expressed an; dis-
satisfaction at any of the acts of Governor
Folch, or the least doubt of the perfect validity
of the title; though the claim of the house to
the whole land conveyed was perfectly known
and evidenced by a partial actual possession,
taken at an early period and continued till the
cession of the provinces. Record, 620, 624,
625. There is no evidence in the record that
either the Indians, the governor, or intendant
ever made a cession, grant, order of survey,
gave permission to settle within the boundaries
of any of the grants. It is also a circumstance
of no small consideration that, notwithstand-
ing the long and inveterate controversy be-
7S0*] tween 'the governor and intendant
about their powers to grant lands even in small
tracts, there was none in relation to these. Yet
the intendant had full notice of them, spoke of
tbem, but made no objection (Record, 671) or
perferred any complaint to the captain -general
or the king, although the quantity of land
thus granted to this house was nearly double to
the whole amount of the grants of royal lands
made by the government of West Florida.
Record, 421, 469. It was also proved that in
the opinion of those who know the land, as
well as tbe officers of government, it was not
worth, at the time, the amount of the just
claims of the house on the Indians; that the
grants were taken as the only means of their
indemnitication, and that tbe purchase was
much less advantageous to them than to the
king, who thereby became absolved from a
claim not only too just to deny, but too large
to satisfy with convenience. Record, B70-S74,
S7&, S56, 673, 626. It is also proved that the
Indians who made the cessions occupied the
lands for hunting-grounds; were deemed the
owners of them as Indian lands, and had three
settlements upon them previously (Record, 556,
G6S, 676, 686), and that the country was claimed
by the Seminoles. Record, 12, 53, 607. The
lines were marked by persons appointed by the
governor in presence of the Indians, who con-
sented to them (Record, 621-623, 632), and the
governor gave formal possession to the house
(Record, 625) according to the plats of the sev-
eral grants exhibited to him, which the wit-
neases declare to have corresponded with the
lines marked upon the ground, and those re-
cited In the deeds and petitions. Record, 623.
In opposition to this mass of documentary
and parol testimony, in support of the allegti-
tlona of the petitioners that the grants were in
fact made and confirmed in the manner and for
the reasons and considerations set forth, no di-
rect evidence appears in the record. Some of
the witnesses were examined as to the supposed
but the imputation was negatived, and the pro-
ceedings throughout declared to liava been in
good faith. Record, 554-583.
Bo far, then, as the merits of the ease depend
on the genuineness of the deeda and documents,
the facta of the grants and conlirmationa bj
the Indians and governor, the marking the lines
and possession of tbe land, the good faith of
the whole 'transaction, the absence of [*73l
fraud, the authority of the Indian chiefs, aa
representatives of their respective tribes, we
entirely concur in opinion with the court be-
low. That the granta were made bona fide, for
a valuable consideration, of the adequacy of
which the Indians were competent judges, if
they had any right in the lands which they
could convey ; that the ratification of the gov-
ernor was fairly and fully made, and for good
and sufficient reasons, of which he was the
judge, if he had competent authority to give
effect and validity to Indian cessions of tha
land in controversy. The view which the
learned judge took of these (questions, after a
thorough, searching examination of the docu-
ments and evidence, is so entirely satisfactory,
that we have only to express our assent to the
conclusions at which he arrived. Record, 682-
660.
There Is, however, one subject which waa
considered by him, into which we do not foel
at liberty to inquire, which is the water-mark
in the paper on which the governor's pennia-
sion of the 7th of January, 1804, was written,
noticed and commented on at large by the
judge. Record, 706. This objection was not
made in the court below, at the hearing, or in
the argument, so that no opportunity waa af-
forded to the petitioner to produce any evi-
dence on the subject, or to his counsel to an-
swer the objection. This court also refused to
grant him a commission to take testimony
to explain and account for the water-mark, or
permit him to read the ex-parte evidence of-
fered to explain it; because in an appellato
court no new evidence could be taken or received
itliout violating the best established rules of
idence and law, Under such circumstances, it
Duld be dealing to the petitioner a meaaure
justice incompatible with every principle of
equity, to visit upon his title an objection which
he was not bound to anticipate in the court be-
low, which he could not meet there, and which
this court were compelled to refuse him the
means of removing by evidence. We will not
say what course would have been taken if his
title had depended on the date of the paper al-
luded to; as the case is, tt is only one of numw-
ous undisputed documents tending to eslDbliah
the grant, the validity of which is but little, if
it could be in any degree affected by tbe date
of the permission.
It is objected by the counsel of the Dnit«d
States that the 'orifiinal acts of con- (*7SS
flrmation of the Indian sales by Governor
Folch are not produced, and that the copiea in
evidence are not legal proof of such acts. Thia
objection seems to us not to be well founded in
fact or law- The original Indian deeds wer«
procured by t!ie agent of the United States
from the public archives in Havana (Record,
629, etc.), and are now before us. The deeds
of confirmation were made according to the
Tulea of the drll law adopted by Spain, and in
Petera o.
IS3S
HiTCHKL ET AL V. Tbk Unirmi Stati
tarcc in FtoridA and Cuba; the original is a
rHord, ind preierved in the office, which can-
not be taken out; a tcstimonio or copy ia de-
livered to the party, wliich it dcpincd to be and
i; certified at an original paper, having all the
cfTrct of one in all countriei governed by the
rivil law. Such la proved to be the law of
IhoK colonies, aa b fact, by Mr. White (Record,
II2fl) 1 sitrh ia the form of the certificatea in this
caw, varj'ing in phraaeology aomewhat, but
■grcrin;; in siibatanee and effect (Record, 19,
38, 45, 50, 58, 01, 106, 111], in perfect accord-
ance with the civil law adopted in Louisiana,
and recognized by this court in the caae of
Owingg v. Hull, decided at the present term.
We therefore consider those now produced ai
original deeds of confirmation by the governor,
duly certified and proved.
It is objected that the deeda of IBM and 1S06,
to Panton. Ijcslie & Co., were inoperative to
paaa the lands, they having died previously.
[t is in proof aa a fact that Forbes & Co.
were the successors in business and interest to
I'mtan & Co. This change of the name and
partner* of the house after the death of Mr.
i'snton was known to the otnccrs of the local
IJivemment and the king, who, by a royal
order in 1805 (Record. 2G2), and another in
IBOr (Record, 270), directed that it should have
m> effect on their privileges. To the king
mattered not whether the landa were conveyed
(0 the house aa a flrm, or to the partners nom-
iiuttim; they, it seems, preferred considering
the lands an a part of the general effects of th(
partnership, and received the deeds according
If; as it conrerned only them, and aa there hai
l>cen produced no law of Kp^in invalidating
'-uch a grant, the objection cannot be sustained.
Another objection, on account of an oath of
7aj*] a!lc|,'iance not "having been taken by
the gTantecH, is removed by the evidence al-
ready referred to, and need he no farther con-
It is objected that the grant of 1811 ia invalid,
■wcanse it comprehends the fort of St. Mark's,
then actually occupied by the troops of the
tng. It is in full proof that the site of St.
Uark's and the adjacent country was within the
territory claimed by the Seminole Lidians. Rec-
nrd, 12, 131. 603-607, OlS, It la not certain,
from the evidence, whether it was purchased
from the Indians, or merely occupied by their
permission: there seema to be no written evi-
dence of the purchase, but no witness asserts
that possession was taken adversely to the In-
dian claim, and it is clearly proved to have
hten amicably done. Record, 232, 300, 531.
Whether the Indiana had a right to grant this
particular apot then or not, cannot affect the
validity of the deeds to the reaidue of the lands
conveyed in 1811- The ^nt ia good, so far as
it interfered with no prior right of the crown,
according to the principlee settled by this court
in numerous cases arising on grants by North
Carolina and Georgia, extending partly over
(he Indian boundary, which have uniformly
Wb held good, aa to whatever land was within
the line eatabliahed between the State and the
Indian Territory. Wear v. Danforth, 9 Wheat.
•13: Patteraon v. Jenks, 2 Peters's Rep. 21fi;
and Winn v. Palteraon, decided by the Supreme
Court ot the United States, January, 1835, ante,
S63. As to the land covered br the fort and
appurtenances, to soma dlatanc* arauBd It, It
becomes unnecessary to inquire into the affect
uf the deeds, aa the counsel of the petitioner!
have in open court disclaimed any preteaaioua
to it.
Another objection is of a more ^neral nature,
that the grantees did not acq^uire a legal title to
the lands in question. But it must be remem-
bered that the acta of Congress submit these
claims to our adjudication as a court of equity;
and, aa often and uniformly construed in its re-
peated decisions, confer tne same jurisdiction
over imperfect, inchoate and inceptive titles as
legal and perfect ones, and require us to decide
by the name rules on all claims submitted to ui,
whether legal or equitable.
Whether, therefore, the title in the present
case partakes of the one character or the other,
it remains only for ua to inquire whether that
of the petitioner ia auch in our opinion that he
'haa, either by the law of nationa, the [*T34
stipulations of any treaty, the taws, usages, and
customa of Spain, or the province in which the
land ia aituatcd, the acts of Congresa or pro-
ceedings under them, or a treaty, acquired a
right which would have been valid if the terri-
tory had remained under the dominion and in
posaeasion of Spain.
In doing so, we shall not take a detailed re-
view of the leading cases on Spanish granta al-
ready decided by this court, in relation to those
lands which formed a part of the royal domain,
in contradistinction to those which may be con-
sidered aa Indian lands claimed by Indians, by
their title, whatever it may be. Those compre-
hended within the claim of the petitioners be-
ing of the latter description, as they contend
and thereupon rest their title, it will suffice to
state some general results of former adjudi-
cations which are applicable to this caae, are
definitively settled, so far aa the power of thia
court can do it. and must be taken to be the
rules of its judgment. They are these:
That by the law of nationa, the inhabitants,
citizens, or auhjects of a conquered or ceded
country, territory, or province, retain all the
rights of property which have not been taken
from them by the orders of the conqueror, or
the laws of the sovereign who acquires it by
cession, and remain under their farmer lawa
until they shall be changed.
That a treaty of cession was a deed or grant
by one sovereign to another, which transferred
nothing to which he had no right of property,
and only auch right aa be owned and could
convey to the grantee. That by the treaty with
Spain the United .States acquired no lands in
Florida to which any person had lawfully ob-
tained auch a right by a perfect or inchoate
title, that thia court could conaijer it as prop-
erly under the second article, or which had,
according to the slip ilatioris of the eighth, been
granted by the lawful authorilica of the king;
which words, "grants" or "con cession a," were
to be construed in their broadest sense, ao as to
comprThend all lawful acts which operated to
transfer a right of property, perfect or imper-
fect. B I'etera. 710; 7 Peters, B6, 88; 8 Peters,
445, 44!), 450, 480.
Tli"t (lie efTect of the r'aiisea of confirmation
of granls made wan that they confirm them
presently on the tatilication of the treaty, to
those in posaeHion of the landa, which was de<
1*1
T»
Stjrmrur Coukt or toe United States.
7S5*] cUred *to be that 1og»l BRiein and poa-
ieasion wliich follows (.title, ia rocitenaive with
tbe right, and continuea till it i» ouated bj an
actual Kd verse poaneasion, m contradiatin-
Klahed from residenre and occupation. S
tera, T43; 8 Cranch, 229, 230; 4 Wheat. 213,
233; 4 Peters. 480, 604. 606; 6 Peters, 354, 356.
That the United States by accepting the cea-
aton under the terms of the eighth article, and
the ratifleation by the king, with an exception
of the three annulled grants to Allegon, Punon
Rostro, and VarKaa, nan make no other excep-
tions of grants, made hj the lawful authoritiea
of the king. 8 I'etera, 463, 464.
That the meaning of the words lawful author-
ities in the eighth article, or competent author-
Itlea in the ratification, muat be taken to be
"by those persons who exercised the grunting
power by the authority of the crown." That
the eighth article express I y recognizes the ex-
istence of these lawful authoritiea in the ceded
territoriea, designating the governor or intend-
ant, aa the case mi^ht be, as invested with such
authority, which is to be deemed competent
till the contrary is made to appear. 8 Petera,
449 to 453-
That "by the laws of Spain" ia to be under-
stood the will of the king expressed In his or-
dera, or by hia authority, evidenced by the acts
themselves, or by such usages and customs in
the province aa may be presumed to have ema-
nated from the king, or to have been sanctioned
by him, as existing authorized local laws. 6
Peters, 714 to 716.
In addition to the established principles here
tofore laid down by this court as to the legal
«ITcct of an usage or eiiatom, there is one which
ia peculiarly appropriate to this case. The act
of Congress giving jurisdiction to this court to
adjudicate on these causes, contains thin dauae
in reference to grants, etc., "which was pro-
tected iind secured by the treaty, ami which
might have been perfected into a complete title,
under and in conformity to the laws, usages
and customs of the government under which
the aame orPKinated." 6 Peters, 708, 700; 3
Story's Laws U. S. 195B, 1080.
This is an express recognition of any known
and established usage or custom in the Span-
ish provinces, in relation to the granta of land
and the title thereto, which brings them within
a well-established rule of law. That a custom
786"] or usage saved 'and preserved by a
statute haa the force of an express statute, and
shall control all affirmative statutes in opposi-
tion, though it muat yield to the authority of
negative ones, which forbid an act authorized
by a cuatom or usage thus saved and protected
(4 Co. Inst. 80, 298); and this is the rule by
which we must test its effieacy according to the
act of Congress, whicu we must consider aa of
binding authority.
In taking possession of Florida pursuant to
the treaty, and in establishing a government in
and over it. Congress have acted on the same
principles as those which were adopted by this
court in the former cases. In the Act of 1821,
for carrs'ing the treaty into execution, Con-
gress authorixps the vesting the whole power of
government in such person as the president
may direct for the maintaining the inhabitants
In the free enjoyment of their property. Pam-
phlet lAwa, 47.
Itl
The governor thus appointed, by bis prod*'
mation in the aama year, announces to the Ia-
habitanta that he has been invested with all ths
powers, and charged with all the duties hereto-
fore held and exercised by the Captain -General
and of the Tntendant of the Island of Cuba o*er
the Floridas; and the governor thereof recite*
the foregoing act of Cangreaa, declares that they
shall be maintained and protected in the free
enjoyment of their property, etc.. and that all
laws and municipal regulations which were in
existence at the cessation of the late govern-
ment remain in full force. Pamphlet of 182-2. 1 13.
The tenth section of the Act of 1822 contains
the same pledge for the protection of property,
and the thirteenth continued in force the exist'
ing laws, till altered by the local legislature
then organized. Pamphlet, 16.
The formal act of the surrender of the Plofi-
daa by Spain to the United States was made by
the eommandanta of both of the provincea, Iq*
the authority of the Caplain-Cciieral of Cuba
under a royal order. Pamphlet, 110.
Tlieae are most solemn acts of both govern-
ments, which, aa the procie dings under the
treaty of cession, are made a rule for our
guide in deciding on the validity of the title to
lands in the provinces, they have all been rati-
fied and approved by the king and Congresa,
affording the highest possible evidence of the
true mt-aning of both the hi^h contracting
parties to the treaty. They point directly to
the kind of government *whifh existed ["1ST
lipfore the cession as being vested in the Cap-
tain.General and Intendant of Cuba, and the
governors of the provincea, aa the supreme legia-
lative, executive, and judicial power, subordi-
nate to the king only. And aa it became after-
wards in the hands of the governor alone by
act of Congress subordinate only thereto, while
under both, the government was administered
in conformity to the local laws and municipal
rcgulationa. It cannot therefore be doubted
that among the other powers of the former
government, that of granting lands was invest-
ed in some of its officers, nor that such odiceri
were the governor, the intendant, or captaiu-
general, as the cnae might be; tliua exhibiting
a union of opinion between the King of Sp«ia
as well aa the legislative and judicial depart-
ments of thia government, as to the meaning
of the treaty, which cannot be without its in-
fluence on its true construction and bearing
on the rights of parties now before this court,
sitting in an appellate court of equity, directed
to decide "in conformity to the prineiploB oif
justice" and the laws and ordinances of the go*-
ermnent under which the claim of the petition-
er originated, they must be our guide.
Colin Jlilchel claims the land in controversy
as a purchaser from Panton, Leslie 4 Co^
John Forbes & Co., and John Forbes, xi-ho
were purchasers from the Seminole or Tolla-
pooaa Indiana, bona fide, for a valuable consid-
eration paid by one party and received by tbe
other by force or contract, accompanied with
the legal seisin and possession of the whole,
and actual pedis posseasio of a part, under a
claim of right and title to the whole by grant.
The equity of the parlies from whom Mitchel
purchased commenced in 1789, 1790, 17SE,
when the depredations were first committed
and the debts contracted which formed th«
Pe(er« ■.
im
HrrcKCL n ai. v. Thk Usited Stats.
m
consideration of the Tndinn derds, the debts in-
CTMiaing till 1800, and the depreilntionB then re^
Dewed. A claim earij made on the Indiana
for compennation and on the government of
hipiio for indemnitj', continued till an agree-
ment for the cession of lands b^ the formei
was made in 1800, and carried into effect iji
1SU4 and 1806; when it was carried into grant,
ritifled and confirmed hy the Indians, the
Governor of West Florida, and Captain-Gen-
eral of Cuba, without an interfeijng claim till
(he ceaaion of the United States in 1820, 1821.
On the other hand, the United States claim the
T)S*J land 'by purchase from the King of
Spain, made bona fide, for a valuable conai der-
ation fully paid, hut with full and direct notice
ot the equity of Forbes ft Co., and the pur-
chase in the name of Panton Leslie &, Co., of
sLich Forbea waa a partner, which notice was
as earlv as 1804. "
968. . .
ed Rotates was in January, 1818, when thi
lion was first proponed; the first agreement to
convey by ^pain waa in 1810, the date of the
treaty; and the final grant was made in 1830,
the date of the ratification; and posaeaslon flrat
taken in 1821, purauant to the conveyance of
the treaty.
Thiia viewing the contending parties, we
proceed as a court of equity to inquire whether,
at the time the cession bv the treaty took effect
in favor of the United States, there waa a ri^ht
of property in Colin Mitchel to the lands in-
cluded in bia granta, or whether they had been
previously granted by the lawful authorities of
the king. That they were granted in fact is
incontestable; and they were private property,
if there waa a grant competent by law to vest
a title.
It is contended by the United States that the
acts of Governor Foleh, in the pcrmiasionE to
purchase from the Indians, and the ratifying of
ind confirming their deeds, are void, aa the
landa were not in West Florida, over which
province alone he had any jurisdiction.
There seems no doubt that under the British
ICDFernmcnl the River Appalachicola remains
the boundary between East end West Florida,
as it waa so established by the proclamation of
the king in 1763 (1 Lawa U. S. 444), but it
does not appear that Spain had adopted it in
■dministtring the government of those prov-
inces by any royal order, or that such was a
common opinion of the inhabitants (Record,
CCP2, to 604): on the contrary, it appears that ao
early aa 1785, Don Calvez, then Covernor-Gen
eral of Louisiana, considered the district of St.
Uark's de Appalachy aa a dependency of his
government, and in 1680 placed it under care
of the government of West Florida, and ordered
th« establishment of a post there by a detach-
Dieiit from the garrison of Pensacola, which
acta were approved by a royal order in March,
1787. Record, 308, 197. These order* were
acquiesced in by the Governor of East Florida,
who appears to have exercised no jurisdiction
lit'] within that *terr{tory, or to the west of
it, after 1TB6. Record, 200. There is abun-
dant evidence in the record that that post, the
dKumjacent territory, with what lies between
It and the Appalachicola, was a dependency on
was so considered b^ all the of&o^ra of the cor-
emment, the captain -general and the king, aa
appears front many documents. Record, 163,
1«5, 167, 16S, IBO, 190, 201, 202, 203, 209, 227,
228, 234. 230, 26G, 207, 297, 298, 304. The fact
of the exercise of jurisdiction over that territory
by the Governor ot West Florida is also es-
tablished by the concurring testimony of many
witnesses iRccord, 682, 600, 601, B02, 604), oa
ia alao the fact of its surrender by bim to the
United States aa a part of the territory under
his command. Record, 602; Laws ot IS32,
pamphlet, 112.
But evidence of the fact atill mora conclu-
sive, and ita most solemn recognition by both
governments, is to be found in the formal act
of surrendering the sovereignty and posaesalon
of the province by Spain to the United Statea.
The Governor of West Florida "placed the
commissioner of the United States in possession
of tlie country, territories and df pendencies ot
West Florida, including the fortreas of 8t.
Mark's, with the adjacent islands, dependent
on said province." White, IBS; Pamphlet
La«;s, 112. So it was accepted and is yet held
by the United States, and so wb must consider
it ia as understood by Congress in the various
laws paaaed since the cession, and the proceed-
ings therein authorized under the treaty in
reference to East end West Florida. The
boundary between them must be taken to be
that which existed under Spain from 1786 till
1B2I, as incontestably proved, and most sol-
emnly admitted by the United States, up to
which the powers of the Governor of Weat
Florida, whatever they might be, could be ex-
ercised in their plenitude, both as a govern-
ment de facto and a government de jure.
It becomes needless to inquire whether, after
these solemn acts, it is competent for the United
Ststcs to now contest the existence of such
boundary; it suffices for this case, that it is
abundantly eatabtished by all the evidence,
which is uncontrn dieted, and that the lands in
controversy are situated within West Florida,
according to the boundaries recognized by both
•governments. This objection cannot ['TIO
therefore be allowed to prevail. It ia next con-
tended that the power to grant landa in West
Florida was not vested in the governor, but
was confided exclusively to the intendant; this
is clearly proved to be the settled law of that
province as to royal lands, which were the
property of the crown, and Is admitted by the
counsel of the petitioner.
"But the reverse is, we think, equally apparent
to Indian lands, until their right had been
abandoned, and the land become annexed to
the royal domain by a process in the nature of
an office at common law. White, 26, 40, 42,
79, 43, 47, 21G. The relations between the
Indians and the government of Spain wera
considered as matters of the deepest political
concern, in nowise connected with its fiscal
operations; the commerce with the Indiana
— -1, as a political instrument, intrusted exclu-
:iy to the governors, as clearly appears by
their correspondence with each other, the Cap-
tain-General of Cuba, and the ministry In tha
had nothing to do. Record, 161, 671, 676, 686.
687, 600; White, 32.
SIS
T40
SupwotK Corni or the Unim States.
ISU
It w«i A part of the governor's oatb, aa pre-
«erib«d by the laws of the Indies, "that you
ahHil take care of the welfare, increase an^
protection of the Indiana." Record, 237. Hi
was their protector, whose duty it was t<
examine whether claims upon them were wel
founded, and if so, contribute by all pOBsiblt
meana to their being paid (Record, GST), but
not to lend his sanction, or aliow the amallcst
injury to be done to them. Record, B71, 231
The fact of the supervision of Indian sales of
thti ■'■-■■ - - -. -
and putting the purchasers in posseasioi.
very cluariy establiahed by the report of the
land commissioners of the United States '
Louisiana. Record, 326-333. It was ex
cised by Don Galvez, Governor-General of
Louisiana, as early at least aa 1T7T, in confirm-
ing an Indian sale of the great Ilouma tract
on the Mississippi (1 Laws U. S. 661, S52, 654) ;
and there is no evidence that this power was
ever intrusted to or conferred on any other of-
ficer, nor that it was ever ezerdsed by any
It was an authority expressly delegated to
Ihembythelaws (White, 232-234), and so report-
J41'] edby the commissioners (record, '329) ;
proved also as a fact by the former secretary
of the province (Record, 672) and Govemor
Folch, Record, 231-234. It cannot, indeed,
he well questioned that the governors and com-
mandants of posts were the appropriate olH-
•Krs for these purposes, in the absence of any
evidence of confirmations by intendants, with
positive evidence of their approliation by the
Captain -General of Cuba, in making (Record.
12) formal acts of confirmation without objec
tion by the In tendant -General of Cuba, or by
local intendants. When to these considerations
is added another, arisiDg from the circumstonce
of there being no instance of t!ie rejection or
disaffirmance of a deed confirming an Indian
sale by any of the superior authorities in the
provinces, or by the king, as is clearly estab-
lished (Record, 336, 627, 628) and admitted in
the argument, we cannot feel authorized to de-
clare that Governor Folch usurped any powers
vested in the intendant, in any of bis acta re-
lating to these lands.
The confirmation of similar grants made by
acts of Congress, or by boards of commission-
ers acting under their authority, are also pow-
erful evidence of the lawful exercise of the
authority of these officers^ and being proceed-
ings under the treaty and laws, they are made
a rule by which among others we may adjudi-
cate on the claims of the present parties, in
doing which we cannot sustain this objection
without overlooking such a concurrence of evi-
dence of various descriptions, as leaves no rea-
sonable cause of a doubt of the authority of
Governor Folch; especially vlien we connect
with his first permission to make the purchase
«f 1604 the condition attached to it that the
lands should not be disposed of without the
giving notice to and knowledge of the govern-
ment; and to that of 1811, that it should be
which that condition
Pursuant to these conditions, John Forbes
Sff4
applied to the Captain-General of Cuba in 18IT
for permission to sell the land to the petitioner,
which being referred to the assessor -general for
his advice, he reported that the lands had been
transmitted actually and lawfully in full prop-
erty to Mr. Forbes, with a condilional title, or
titulo oneroBO, for which acquisition competent
permission was ^ven by Governor l''olch, who
'delivered titles of confirmation subse- [•741
qucntly; whereupon a formal permiasion was
givEU by the Captain -General to make the sale,
which was a direct approbation of all the pro-
ceedings authorised by that governor, as well
as that he was the officer designated for Huch
purpose. Record, 12, 62, 63. Such a confir-
mation by an officer subordinate only to the
king, performed so long after the acts done by
the governor of a province who was under the
control of the captain -gen era), must be referred
to his legitimate authority competent for the
purpose. It was done also on the deliberate
advice of an officer responsible to the crown,
which makes the presumption very strong, if
not irresistible, that everything preeedingit had
been lawfully and rightfully done. White, 26,
40, 43, 47, 40. This proceeding is in the nature
of an inquest of ofiice, in analogy to the writ
of ad quod damnum, which by the common
law precedes the grant of any charter, license,
or patent of the king, of anything which may
be injurious to his or the righls of others, «■
which an inquest is taken, on whose report the
king acts, on the advice of the propt-r officer
or tribunal, makes the grant or withholds it,
as advised. 3 Bla. Com. 259; IT Vin. Abr. 171,
178; 7 Day's Com. Dig. 80.
The report of the assess or -general Beema to
have been acted on as an inquisition St common
law, finding that there was no obslacle to the
making use of the powers intrusted to the cap-
tain-general. Vi'e should feel it to be an aa-
sumption of much responsibility to declare that
on the evidence in this record, and the law
arising upon it, that either of the otfici'rs re-
ferred to uBurpi?d powers not vested in them, or
exercised them against or without the authority
of the king.
The counsel of the United States pressed in
argument the decision of this court in the case
of Arredondo, as an affirmance of the ri^ht of
the intendant of the province, or of Cuhn, to
grant Indian lands. In thnt case the Icnda
granted had been in the poaacssion and occu-
pation of the Ailachua Indians, and the centre
of the tract was an Indian town of that nniue.
But the land had been abandoned, and before
any grant wos made by the intendant a report
— - 1 made by the attorney and Burveyor-gener«l
a reference to them, finding the fact of
abandonment, on which it was decreed that the
land had reverted to and become annexed to
the royal domain.
■'Conaidering this to be judicial act {'748
the nature of an inquest of office, and tbe
decree of the intendant as mnkiu'; the fact m
djudicata, we did not feel at lilierty to look
behind it for evidence on which it was founded ;
the consequence of which was, that by the
judgment of a competent tribunnl, the land
was part of the royal domain, subject to the
disposition of the intendant. There is no pre-
tense of a similar proceeding having been had
in relation to these lands, nor could th^re ^c«ll
^«tera •.
Ittl
MncntL CT Ar. ». Thb Unitto States.
?43
be an opposttion to the evidence fn the record,
ciqi^Blij the report of the assessor -general in
IRI7, that they were the lsnd» of the Scminolet
it the time of the cession bj them aniJ the con-
finnnlion by Governor Folrh. By the eommon
lux the king has no right oF entry on lands
trhifh is not eommon to his subjects; tha king
is put to his inquest of ofEce, or information of
introsion, in all cases where a subject is put to
his action; their right is the same, tnough
the king has more conrpnient reraciiieB in en-
forcing his. If the king lias no original right
of possession to lands, he cannot acquire it
without office, found 80 as to annex it to bis
domain. 2 Co. Inst. 46; Saville, 8, 9, pi. 20;
Hoh. 347; Hardress, 460; 7 Day's Com. Dig.
V; Gilbert's Ei. lOfl; 3 Bla. Com. 257; Filz.
H. B. 90 b.; 4 Co. 98 b.; 16 Vin, 552; 3 Co.
10, II; 9 Co. 96, 95, 98; Hardress, Bl, 52;
Plow. 236, 486; 1 Co. 42; S Co. 62 b; Plow.
£29, 2^0. Such, too, seems to be the law of
Spain in the Floridns and Cuba, as appeared in
the case of Arredondo, and as it must have
been understood bj the Spanish authorities,
when they aeknowlcdged the Indian right to
lands in the harbor of Ppnsacola to be an ex-
isting one in 1818. Nor is there any evidence
in the record that their right ceased to be re-
•pected, or that lands which had been in their
possession became annexed to the royal domain,
till some official proceeding, founded on the
law of Spain, in the nature of an olTice by the
rommon law, had taken place under the proper
authority. White, 25, 40, 37.
The United States have acted on the same
principle in the various laws which Congress
have passed in relation to private claims to
lands in the Floridas; they have not undiTtaken
to decide for themselves on the validity of
iueh claims without the previous action of
•one tribunal, special or judicial. They have
not authorised an entry to be made on the pos-
JH*] session of 'any person in possen'ion, by
color of a Spanish grant or title, nor the sate
of any lands as part of the national domain,
wilh any intention to impair private rights.
The law^ which give jurisdiction to the district
conrts of the territories to decide in the first in-
«tance, and to this on appeal, prescribe the
moile by which lands which have been pos-
**<sed or claimed to have been granted pursu-
ant to the taws of Spain, shall become a part
of the national domain, which, as declared in
the seventh section of the Act of 1824, is a "final
derision against any claimant pursuant to any
of the provisions of the law,"
Another objection is made to the title of the
petitioner, on the allegation that by the Treaty
of Picolata between Great Britain and the
Creeks in 1765, the Indians had ceded alt the
lands in controversy between the sea and flow
of the tide, in virtue of which they became the
properly of the crown and passed to Spain by
the Treaty of 17S3,
The fifth article of the Treaty of Picolata,
made to prevent encroachments on the lands
or hunting-grounds of the Creeks, stipulates
that the boundary of the province of East
Florida "shall be all the sea coast as far as the
tide flow*, in the manner settled with the great
Tomachiches by the English," with all the
wuntrr particularly described therein, which
they grant and conflnn to the king.
• KM.
Aa this refers to a treaty or compact made
with this chief. Its meaning niuat be sought in
it, and unless something .-an be found there
which will make the expression more dctlnite
than the general terms "all the sea-coast as far
as the tide flows," it will require great latitude of
construction, as to an Indian cession, to extend
it from the St, Mary's around the peninsula of
Florida to the mouth of the Appalachicola.
The tract of country ceded lies on the sea-coast,
east of a point formed by a line run from the
source of St. John's, which is its southern
boundary; the western bonndiiry is a line run
from the junction of the Ocklawa with the St.
John's northwardly to the St. Blary's, nearly
parallel to the sea-coast, at an average distance
of about thirty miles west. It wou)d be stretch-
ing the meaning of this treaty very far to em
brace within it an extent of sea-coast nnd con^
tiguous land within the flow of the tide to ita
whole extent, when the extent of the lands
ceded west of a line from the mouth of the
Ocklawa to 'the sea was bo small. Be' [*T4!l
fore we could do It, it must appear to have been
so previously sftt'cd between the English and
Tomachiches, aa is referred to in the Treaty of
I'icolata. From the account given in M'Call's
Uistory of Giorgia, the treaty with Tomach-
iches was held in 1733, and the cession of the
Bca-coast was only between the Allamaha and
Savannah, extending west to (he extremity of
the tide-water. 1 ITCall'i IliBt. 37.
As this is the act referred to, it must be taken
in connection with the subsequent treaty to
make it certain by the reference (6 Peters, 739),
which entirely removes the objection, and
shows the cessions of the sea-cosst to be confined
to Ihnt part which is between the St. Mary's
and St. John's rivers.
The report of the surveyor -general in 1817, is
very full on thp subject of the boundaries be-
tween the British government and the Indians
in East and West Florida. Record, 184-194.
lie says, "with regord to East Florida, I hare
never been able to discover that there has ever
been any treaty or agreement with the natives
of that province concerning the limits of their
possession, nor in that of the Spanish author-
ity." As the surveyor -general had referred to
the Treaty of Picolata in his report, it is clear
that it was construed by the Spanish govern-
ment as it now is by thia court.
We now come to consider the nature and ex-
tent of the Indian title to these lands.
As Florida was for twenty years under the
dominion of Great Britain, the taws of that
country were in force as the rule by which
lands were held and sold; it will be necessary
to examine what they were as applicable to the
British provinies before the acquisition of the
Floridas by the Treaty of Pence in 1703. One
uniform rule seems to have prevailed from their
first settlement, as appears by their lawa; that
friendly Indians were protected in the posses-
sion of the lands they occupied, and were con-
sidered aa owning thetn by a perpetual riglil of
possession in the tribe or nation inhabiting
them as their common property from genera-
tion to generntion, not as the ri^ht of the in-
dividuals located on particular spots.
Subject to this right of possession, the ulti-
mate fee waa in the crown and ita grantees.
SOPBEMK CoUBT 0* THE UltlTID STATES.
ISU
74C*] which could b« ertnted by the *eroim or
«otonia1 le^isiatures while the laitda remained
in poHHesBion of the Indians, though peases -
iloti rould not be taken without their consent.
Individuals could not purchase Indian lands
without permission or license from the crown,
colonial eoremors, or according to the rules
itrescribed by colonial laws; but such purehases
were valid with such license, or in conformity
with the local laws; and by this ' "
perpetual right of occupancy with the ultimate
fee, which passed from the crown by the license,
the title of the purchaser became complete.
Indian possession or occupation was con-
Mdered with reference to their habits and modes
of life; their hunting-grounds were as much iu
their actual ptusessioa as the cleared fields of
the whites 1 and their rights to its exclusive en-
joyment in their own way and for their own
purposes were as much respected, until they
abandoned them, made a cession to the govern-
ment, or an authorized sale to individuals. In
either case their right became extinct, the lands
could be granted disencumbered of the right of
occupancy, or enjoyed in full domain by the
purchasers from the Indians. Such was the
tenure of Indian lands by the laws of Massa-
ehusetti (Indian Laws, 9, 10, 15, IG, IT, IS, 19,
81), in Connecticut (40, 41, 42), Bhode Island
{62, 55), New Hampshire (60), New York (B2,
04, 71, 85, 102), New Jersey (133), Pennsyl-
vania (138), Maryland (141, 143, 144, 145), Vir-
ginia (147, 148, ISO, 153, 154), North Carolina
{183, 164, 58), South Carolina (178, 179), Geor-
gia (186, 187), by Congress (Appendix, IB] ; by
their respective laws, and the deciaiona of courts
ia their construction. See cases collected in 2
Johnson's Dig. 16, tit. Indians; and Wharton's
Dig. tit. Land, etc. 4S8. Such, too, was the
view taken by this court of Indian ric;hts in the
case of Johnson v. M'Intosh, 8 Wlirat. 671,
004 which has received universal assent.
The merits of this case do not make it neces-
aaiT to inquire whether the Indians within the
United states had any other rights of soil or
juriadiction: it is enough to consider it as a
Mttled principle that their right of occupancy
!■ considered as sacred as the fee-simple of the
white*. 6 Peters, 48. The principles which
had been established in the colonies were
adopted by the king in the proclamstion of
October, 1763, and applied to the provinces ac-
747*] quired by the Treaty of Peace and 'the
crown lands in the royal provincps, now com-
poiing the United States, as the Ihw whii'h
should govern the enjoyment and trnnamisBion
of Indian and vacant lfl!..ls. After providing
for the government of t'le acquired provinces
(1 Laws U. S. 443-4*4) it autliorizes tin' gov-
ernor of Quebec, East and West Florida, to
make grants of such lands as the king had
power to dispose of, upon such terms as liave
been usual in other colonies, and such other
conditions as the crown might deem necessary
and expedient, without any other restriction.
It also authorized warrants to be issued by the
SDvemora for military and naval services ren-
ered in the then late war. It reserved to the
Indians the possrsHion of their lands and himt-
Ing-grounds ; and prohibited the granting any
warrant of survey, or patent for any lands west
of the heads of the Atlantic waters, or which,
not having been ceded or purchased by the
crowa, were reaerred to the Indians, and pr«-
hibiied at) purchascfl from them without ita
spe<:ial license. The warrants issued pusuanl
to this proclamation for lands then within the
Indian Mundary, before the Treaty of Fort
Stanwix in 176B, have been held to pass the title
to the lands surveyed on them, in opposition to
a Pennsylvania patent afterwards issued. Siini
V. Irvine, 3 Dallas, 427-456. And all titles held
under the charter or license of the crown to
purchase from the Indians have been held good,
and such power has never been denied; the
right of the crown to grant being complete,
this proclamation had the eS'L'ct of a law in re-
lation to such purchasesj so it has been con-
sidered by this court. 8 Wheat. 505-001.
Settlements made by permission of the com-
manding oRicers of posts on lands not ceded by
the Indians, have been lield to give a pre-emp-
tion to lands In a proprietary government, and
warrants and patents for such lands have been
uniformly held good, when knowinsly made
by the proprietary or his olBcers as lands not
purchased from the Indians. S^e Wharton's
Dig. tit. Lands, 488. This proclamation also
directed that purchases from Indians should be
made at a public council or assi'mbly. In the
presence of the governor or commander-in-chief
of the colony, and he purchased for the kiog
and in his name, 1 Laws U. S. 447.
The Indian deeds made at the treaty of Fort
Stanwix were to the king in trust for the
grantees. Colony Titles, 8*2-03.
'Grants mode by the Indians at public [*T48
councils have since been made directly to the
purchasers or to the State in which the land
lies, in trust tor them, or with directions to
convey to them, of which there are many in-
stances of large tracts so sold, and held, espe-
cially in New York. Indian Treaties, 13-33.
It was an universal rule that purcliases made
at Indian trraUis. in the presence and with the
approbation of the ofTiccr under whose direction
they were held by the authority of the crown,
gave a vslid title to the lands; it prevailed
under the lavis of the States after the revolution,
and yet continues in those whire the right to
the ultimate fee is owned by the States or their
grantees. It has been adopted by the United
States, and purehaaps made at treaties held by
their authority have been always held good by
the ratification of the treaty, without any
patent to the purchasers from the Uniteil
States. Tbii rule in the colonies whs founded
on a settled rule of the law of England that
by his prerogative the kin); was the universal
occupant of all vacant land in his dnminiona,
and had the right to tyrant it at his pleasure, or
by his a-.ithorized officers. Hob. 322: Go.
Lilt, 1, 41, b; 4 Bac. Abr. Prerog. 153; 7
Day's Com. Dig. 70.
The authority of the proclamation is in the
right of the king to lej^islate over a conquered
country, which, as Lord Mans Held says, waa
never denied in Westminster Hall, or ques-
tioned in Parliament. If a klni^ comes to b
country by conqi^cst, he may alter its luwa;
but if be comes to it by title and descent, it
must be with coiiiicnt of Parliament. He ia
entrusted with making the treaty of peacej ha
may yield up the conquest or retain it mi what
terms he pleases. These powers no man ev«r
disputed ; neither has it hitherto been con.
Peter* S.
I9U
MncoEL KT AL. T. Tna United Statbi.
troverted that tbe king might change part
or tb« whole of the law or political form
of governmeiit of a conquered dominion.
Be comes iu place of the king of Spain, the
former sovereign (Cowper 204, 213J. in a — -
ariiing uniler this proolnmation. The ]
lamation of October, 1703, then, must be tnken
to be the law of the Floridos till their ccsai
by Great Britain to Spain in 1783, aupcrBedi ._
during that period (he laws of Spain which hatt
bern before in force in those provinces, so far i
they were repugnant; and according to the e:
34ft*] tablished principlea of the 'lavs of ni
tiona, tbe law* of a conquered or cede J
country remain ia force till altered by
the new sovcrcifrn. The inhabitants thcreiif
aUo retain all rights not taken from them by
bim in right of conquest, cession, or by new
laws. It i* clear, then, that the Indians of
Florida had a right to the enjoyment of the
lands and hunting-grounds reserved and se-
cured to them by this proclamation, and by
•ucfa tenure and on such conditions as to
alienation as it prescribed, or such as the king
might aftenvnrds direct or authoriKe. The
Indiana had also a riglit to the full enjoyment
of such rights of prnport; as the king might
thoone to impart to tliem by any regulation,
by treaty or promise made to them by Ms aU'
By the treaty of Mobile in 170S the boundary
of the lands or himting-groumU reacrvcil and
claimed by the Chicknsaw and Chwtaw Inilians
vas settled, a cession was made to the king.
reserving to themselves full right and properly
ia all the lands northward of such boundary.
Record, 309.
The treaty of Pens a col a in the same year
titablished the boundary with the upper and
lower Creeks, who made a ccsEiion of lands,
vhich they granted and confirined to the king
(Record, 310, 311), and a similar treaty was
made with the Creeks at Picolnta. in Enst
Florida, in the same year. Record. 312.
By thus holding treaties with these Indians,
tccppling of cessions from them with reserva-
tions, and establishing boundaries with them,
the king waived all rights aer^ruing by conquest
or cession, and thus toost solemnly acknowl-
edged that the Indians had rights of properly
•hich they could cede or reserve, and that the
boundaries of his territorial and proprietary
rights should be such, and such only as were
Hipulated by these treaties.
This brings into practical operation another
principle of law settled and deelnred in the
ease of Campbell v. Ilall, (hat the proclamation
of 1763, which was tbe law of the provinces
ceded by the treaty of 1703, was binding on
tbe king himself, and that a right or exemption
once granted by one proclamation could not be
aDDvlTed by a subsequent. Cowp. 213. It
cannot be necessary to inquire whether rights
secured by a treaty approved by the king ore
less than sacred under his voluntary proclama-
750'1 "By the treaty of Augusta in 1773, a
cession was made to the king of certain lands
for a sp.;ei[ied consideration, which was to be
Skid to persons to whom the Cherokees and
reeks were indebted, and to defrny the ex-
pcRMs of the treaty. This cession wan made
under an aMertcd claim of a right of property
t L. edU
igU
and those of the king In Georgia. Record,
313-317- By a aubaequent treaty at Augusta
in 17S3, and at Shoulderbornein 1780, tbe obiiga-
Uon of the Indians to pay their debts is mutu^ly
recognized. Record, 317. By the Treaty of
Tort Schuyler in 1768, tbe obligation of the
Indian? to make compensation for injuries
i'ommitted by them is also admitted, as is also
the case in treaties with the United States. 1
Ijiwb U. S. 371, 407, 409, 410. It may then
be considered as a principle established by the
king that the Indians were competent judgea
of the consideration on which they granted
their lands; that tbey might be granted for
Ibe payment of debts, and that this principle
lias been fully recognized by the United States.
It can hardly be contended that while auch
eessions by the Creeks were valid in Georgia on
one side of a then imaginary line, they would
be void on the other side in Florida, aa to lands
held under the same law, and by the same ten-
ure. Whether the granta were made to the king
directly, and the debts or injuries which formed
tlitir consiiterntioQ be paid by him to the per-
sons to whom they were due, or compensation
made through him, or directly to the parties
by a grant to them, must be a matter purely in
(he discretion of the king, or the officer whom
h« had authorized to accept or conRnn the
cessions by his license. Such were the relations
bi'tween the Indians and Great Ilritain aa ea-
tnblished by the proclamation of lies, and
conHrmed by suMequent treaties between
them from I7B5 to 1778 (Record, 18U, 188),
during the period of her dominion over the
Floridas, This liberality and kindness to them,
with respect for their rights of property in their
lands or hunting- grounds, would seem to have
arisen more from a sense of justice than mo-
tives of mere policy, when we consider the po-
sition of Great Britain between the treaty
of 1703 and the commencement of the Revo-
lution, The undisputed sovereign of the whole
territory from the Gulf of ^Fexico to that
•of St- Lawrence, she had little to fear ['TBt
from the rival or hostile policy of Spain, tlie
only neighbor to her coloniea, and who had
lieen humbled during the preceding war, and
weakened to such a degree that she was no
longer formidable in Louisiana. It was far
dilTcrent with Spain, On taking possession
of the Floridas, after thv. independence of tile
United States had been establitihed, with such
a formidable, and rival, if not hostile neighbor
along the whole line of a narrow and weak
province, the friendship of the Indians was a
most important consideration. It would have
been lost by adopting towards them a less lib-
eral. just, or kind policy than had been pur-
sued by Great Britain, or acting occording to
the taws of the Indies in force in Mexico and Peru.
found necessary not only to re-
spect their rights, as they had been enjoyed for
twenty years before, but to place them on tha
permanent foundation of treaties and direct
guaranties by the king. The most solemn aa-
Tsiiecs of both were given. P,ecord, 232.
\ treaty was accordingly held in Pensacota
1784 with the Tallspoosas or Seminole.i, tha
object of which was declared to be to make tha
ibjects of the king eajoj' tb« fruits »( peace.
751
Snpwuu CouBT ta thb Vtitwed States.
18U
b^ which the Indiani acknoirledged tbemselvet
hi* Rubjecta, promiaing to obey the laws in
those points which were compatible with their
;:hBracter and circumstances, conforming them
selves to the usages and municipal cuatomi
which are established (Record, 320), obaerv-
in^ their contracts with the traders in gooi
futh (Record, 3^3), and promising to observe
"those orders exacted by reason, equity and
justice, the principal basis of this Congress."
By the thirteenth article, the officers of the
crown promised in the royal name, the security
and guaranty of the lands which the Indians
hold, according to the right of property with
which they possessed them, on the sole condi-
tion that they are comprehended within the
limits of t1ie king as the sovereign. Record,
324, 4M, 40S, 364.
la 17S3, another treaty was held at the Wal-
nut Ililla with the same Indians (among oth-
ers) ; it was declared to be a treaty of friendship
and warranty between them and the king, wl
waa declared their immediate protector ai
mediator between them and the American
States, in order to regulate their boundaries
with them, and preserve the Indians in the
possession of their lands. They were referred
to the Governor of West Florida, "as repre
75a*] ienting 'the king in it," by the tiftb
article, with a stipulation in the fifteenth, that
the points negotiated would be determined on
by tbe commissaries of the king, with the appro-
IwtioD of the governor of that province, with
the same force as if expressed in the treaty. By
the nineteenth article, the Spanish and Indian na-
tions approved and ratified alt which was con-
tained in it, and mutually promised and swore
• mutual guaranty, the Indians declaring them-
selves under the protection of the king, he as-
suring them of his protection in all cases where
they wonted it. Record, '^40-245. This treaty
also ratified all former treaties made from 17S4.
Record, 241. They were also approved by the
king (Record, 117, 118), and thereafter consid-
ered by the highest ofllcers of the government
in Florida, Louisiana and Cuba, as solemn
guaranties to the Indians of all the rights they
held under Great Britain. Record, 139, 140,
188, 174, 181-189, 228, 229, 232-247, 267, 258,
205, 570, 563. This right was occupancy and
perpetual possession, either by cultivation, or
as hunting.grounds, which was held sacred by
the crown, the colonies, the States and the
United States; while the unauthorized settle-
nents of the whites on royal or proprietary
landa gave them not even the right of pre.
«mption, unless by special laws, or custom and
nsage, sanctioned by proprietary officers. See
Wharton's Dig. ut supra.
But Spain did not consider the Indian right
to be that of mere occupancy and perpetual
possession, but a right of property in the landa
they held under the guaranty of treaties, which
were so highly respected, that in the establish-
xient of a military post by a royal order, tbe
■its thereof was either purchased from the In-
dians or occupied with their permission, as that
of St. Mark's, The evidence of Governor
Folch, given in 1827, on tbe nature of the In-
dian title, is very strong and full (Record, 231-
93S), and the high respect paid to it by all the
local Authoritiea bo late as 1818, is strikingly
illustrated io • report of tbe .aurKejor-^generaJ
of West Florida. It seems that in that year an
application was made for permission to buy
lands on the other aide of the Bay of Penaacola,
to which the reply of the governor and sub-in-
tendant was, if the lands are situated on the aide
from Yellow Water hitherward, "I am per-
suaded they belong to the Indians, even our
own careening 'ground which is in ['75S
front of tliis town" Record, 172i which, ac-
cording to another report from the surveyor-
general, belonged, by the treaties with England,
to the Indiana (Record, 175) ; and who refers
to the limited space of province left to tlie gov-
ernment, and the necessity of recurring to nego-
tiation* with the Indians to obtain some of tbe
lands; which are the best in the vicinity of
Pensacola. Record, 176,
When their right is thus regarded as to th^
lands in tbe iinniediale vicinity of the seat of
government of the province at, so late a period,
it cannot be doubted that it was considi-j-ed by
the officers of the king as at least equally valid
in a far distant part, remote from any habita-
tion of the whites, save those connected with
the house of Panton or Forbes. Although it
moy be conceded aa a principle of national law
that when Spain took possession of these prov-
inces the king could establish whatever form of
government or ayatem of laws be pleased; con-
sider by the law of power, though not of right
the Indiana as his subjects or aa mere savages,
with whom there should be no relatiooa but
those of peace and trade, and who held no
rights otherwise than at the pleasure of the
government, or according to the laws in force
other provinces; yet, it was his orders to hi*
irers to continue and confirm those reiatinne
which bad previously existed, to consider, treat
and protect the Indians aa his subjects, and to
give tliem new and most solemn p1ed;:;es of Iiis
protection in all their rights, as inJividuala;
nations or tribes, competent parties to
of mutual guaranty, for hii<, as well ae
their protection in those provinces, which had
' before been done in any of his dominiona.
his was not done for slight reasons, but for
such as would seem in tbe opinion of all the
great officers of the provinces to have led to
these trealiea, and strong stipulations, a* indis-
pensable to secure their possession. But their
obligation on the king did not de|i"nd on th«
motives which led to their adoption ; the;
bound his faith, and when approved by him
became the law of tbe provinces, by the author-
ity of royal orders, which were supreme, and
bound both king and Indians as contracting
parties, in this respect as nations on a footing
of equality of right and power. Tbe conse-
quence was that when once received into hi*
protection as individuals, they 'became ['754
ititled by the law of nations and of the prov-
cea, on the same footing as the other inhabit-
ants thereof, to the beneAts of the law and
government, which, in every dominion, equally
affect and protect all persona and all property
within its limits, aa the rule of decision, for aJl
(jucations which axise there (Cowper, 208), a«
in this case it must be as to the right of prop-
erty in the Indians. This situation of the
Florida Indians was well known to the United
States, as is most clearly indicated in the fifth
article of the treaty with Spain in 1793— "bo
that Spain will not suffei her Indians to attack
Peters *,
MM
MlTCBKL KT t
'. Thx Umtm SiAiai.
TM
tka dtiien* of the United SUtee, nor the In-
diaoB inhsblting their tenitor;." As thus eon-
stdered h; the United States and Spain, tbef
were ealled "her Indians," white those In the
United States were considered as tlie mere in-
hsU tents of their territory, as the practical re-
sult of the respective treaties whicD were rec-
ognized as subsisting ones between the then
contracting parties and the Indians ; of the stip-
ulations of which and their effect, the United
States could not have been otherwise than well
Isfonued at that time, as to the right of property
fn Indian lands in the Floridas. When they
acquired these provinces by the treaty of ces-
sion, it was not stipulated that any treaty with
the Indians should be annulled, or its obligation
be held less sacred than it was under Spain;
DOT is there the least reference to any intended
diangfl in the relations of the Indians towards
the United SUtes. They cams in the place of
the former sovereign by compact, on stipulated
terms, which iMund them to respect alt the
existing rights of the inhabitants, of whatsver
description, whom the liing liad recognized as
bring under his protection. They could assume
BO right of conquest which may at any time
)«ve been vested in Great Britain or Spain, tor
they had been solemnly renounced, and new
relations established between them by solemn
tipatiea; nor did they take posacssion on any
soeh assumption of right; on the contrary, it
was done under the guaranty of Congress to
the Inhabitants, without distinction, of their
rights of property, and with the continued as-
surance of protection. They might, as the new
sovereign, adopt any system of government or
laws for the territory consistent with the treaty
•ad the Constitution; but instead of doing so,
all former laws and municipal regulations which
were in existence at the cession, were continued
756*] 'in force. It was not necessary for the
United States, in the treaty of cession, to enter
into any new stipulation to protect and main-
tain the Indians as inhabitants of Florida, in
Ue free enjoyment of their property, or as na-
tions, contracting parties to the treaties of Pen-
saeola and Walnut Hilts with Spain in 17B4 and
1793; for by the sixth article of the Louisiana
Treaty between Prance and the United States,
tbey hod promised "to eseeute such articles
and treaties as may have been agreed on be-
tween Spain and the nations or tribes of In-
dians, imtil by mutual consent, other suitable
articles shall have been agreed upon." 1 I«ws,
137. These were the treaties which guar-
antied to the Seminole Indians their lands
aeeording to the right of property with which
Uwy poBsessed them, and which were adopted
ligr the United States, who thus became the
poteeton of all the rights the^ had previously
enjoyed, or could of right enjoy under Great
Britain or Spain, as in(Uviduals or nations, by
any treaty to which the United States thus be-
came parties in 1803.
When they acquired and toolc possession of
the Ploridas, these treaties remained in force
over all the ceded territory by the orders of the
Idng, as ttw law which regulated the relations
between htm and alt the Indians, who were par-
Uea to them, and were binding on the United
States, by the obligation tbey had assumed by
the LonlsianA Treaty, U a supreme law of the
land which wH Inviolable b* tha power of
• !>■ ad.
Congress. They were also binding as the fun-
damental law of Indian rigtits, actcnowledged
by roj-al orders and municipal regulations of
the province, as the laws and onliuances of
Spain in the ceded provinces, which were de-
clared to continue in force by the proclamation
of the governor in tailing possession of the prov-
inces, and by the act* of Congress, whieti as-
sured all the inhabitants of protection in their
property. It would be an unwarranted con-
struction of these treaties, taws, ordinances and
municipal regulations, were we to decide that
the Indians were not to be maintained in the
enjoyment of all the rights which they could
have enjoyed under either, hud the provinces
remained under the dominion of Spain. It
would be rather a perversion of their spirit,
the stipulationa of any treaty, the laws and or-
dinancea of Spain, 'and these acts of [*TSC
Congress, so far as dther apply to-thls ease,
the standard rutesi.for our decision.
On these considerations, we are clearly of
opinion that the Indians who claimed the lands
in question had, under the government of
Great Britain and Spain, a right of property In
them which couid not be impaired witliout a
violation of the laws of both, and the sanctity
of repeated treaties; that these rights continued
till the time of the cession, are guarantied by
the treaty and acts of Congress in relation to
the Floridas, in perfect conformity with its stip-
ulations and faith, unless the Indians had pre-
viously made a binding transfer to the parties
under whom the petitioner claims them.
The remaining question is, whether he has
become invested with the right of the Indians,
either in virtue of their deeas, or by the grant
of the lawful authorities of the Iting, pursuant
to the laws, usages and customs of the Spanish
government of the province. The proclama-
tion of 1703 was undoubtedly the law of the
province till 1T83; it gave direct authority to
the governors of Florida to grant crown lands
subject only to such conditions and restrictions
as they or the king might prescribe. These
lands were of two descriptions; such as had
been ceded to the king by the Indians, in which
he had full property and dominion, and passed
in full property to the grantee; and those re-
■erved and secured to the Indians, in which
their right was pr^etual possession, and his
the ultimate reversion in fee, which passed by
the grant subject to the possessory right. Tha
proclamation also authorir.ed the union of these
rights by a purchsss from the Indians, and tak-
ing possession with the leave and license of the
crown in favor of an individual, or by the gov-
ernor at an Indian council, for and in the name
of the Icing. This proclamation was also the
law of all the North American colonies in rela-
tion to crown lands. The grants of the gov-
ernors were universally considered as made by
the king through his authorized representatives,
and when his authority to grant those lands of
the crown, the right to which was perfect by
the union of the rights of possession with th«
reversion, it is scarcely possible that their au-
thority would be more limited as to those in
which the king had only a remote ultimnte fee.
Aa a matter of policy, it was for the benefit of
the king and colony to substitute the posses-
Buramx Covbt or thk Ukitiv Statm.
18»
7BT*] ■ion, Httlement and cultiTatlon *of tb«
whites for the mere octnipancy of the Indiana
In the puriuit of game; and it cannot be imag-
ined, without clear proof, that the autograph
of the king or his order in council, should be iu'
dispensable for a license or permission to pur-
chase, when a patent was valid without either.
There ia no evidence in the record or in the hia-
tory of the colonies tliat such a distinction ex-
iatsid in law or usage, but is in direct collision
with all the colonial laws relating to purchases
from the Indians, as well as the course pursued
at treaties, when deeds were made to purchasers
with the consent of the governor, or to the
Icing, State, or United States, for their lue, or
in trust to convey to them. There is no evi-
dence or reason to induce the belief that Spain
•eted in any other manner in the confirmation
of Indian deeds; the usage of lier local govera-
ora and commandants of posts in such conSr-
matioD, is in precise conformity to that of the
other colonial officers under Great Britain, and
was also in conformity to the eiUBting laws of
Spain. Record, 32B. From the confirmation
of the Houma grant in 1777 by the Governor-
Geceral of Louiaiana to that of the Captain-
General of Cuba of this, in IBll, during forty
years, no instance appears of a direct confir-
mation by the king, or of his ever having re-
quired any other act than the approbation of
the local governor to give perfect validity to the
Independently of these eonslde rations there
is another, founded on the treaty at the Walnut
under the authority of the Governor -General of
Louisiana. The governor of that province is
hi the fifth article declared to be "as represent-
ing the kin^ in it." Such a stipulation in a
treaty of triendsliip and warranty would bind
the king in good faith not to disavow his acta
declared to be done in the royal name and au-
thority. It would lie an impulation on his
faith to hi a acknowledged subjects, plighted
by repeated guaranties, to suppose that he in-
tended by the treaty of cession to exclude from
confirmation those lands which bis white sub-
jects had purchased from the Indians under
the sanction of treaties, with the approbation
and formal confirmation of bis highest officers;
end to confirm only those grants the royal
domain, which had been made at the mere will
of hia governors, for such consideration only as
they might prescribe. If there could be any
7B8*] "foundation for such an imputation in
any case, the history, terms and couBideration
for the present grants would at once repel it;
and when we consider that the United States
accepted of the cession with a knowledge that
they had been made, as well as the circum-
stances under which they were made, con-
B^ted with the quantity of land embiaoeit with-
in them, without excepting them from confir-
mation, we can have tittle doubt that it was the
meaning and intention of both contracting par-
ses to the treaty to place them on the same
footing as the grants of land belonging to the
royal domain.
There is nothing tn the treaty which author-
Ices a distinction betvveen such grants, whipb
operate by their own force aa a transfer of the
full property in royal lands, held by the mowd
S0«
under ceasiona from tha Indians; or de»da of
confirmation, which give validity to grants con-
veying the Indian right, in confirming the
transfer by the license of the king in the per-
son of hia representative.
The governor was equally the lawful author-
ity of the king for the one purpose as the other;
though )i« had, by his royal order, transferred
the power to grant roySl lands from the gov-
ernor to the intendant, he had not affected the
authority of the former to confirm grants made
by the Indians in such form as to validate the
title conveyed. Whether this act of the gov-
ernor operated by way of confirmation or grant
is immaterial; it gave such eflect to the pur-
chase that the lands became the property of tlw
purchaser, so tliat they could not revert to the
crown by the abemdonment of the Indiana, or
any judicial process known to the law of Eng-
land or Spain, which in substance and efl'ect
were the same. When we look, too, to the
very remote contingent intcreat which the kif^g
could have to these lands, conaistentty with his
guaranty to the Indians, there can be no reason
perceived why deeds or grants, operating to
confirm in full property to the purchaaera from
the Indians, lands thus guarantied to them,
should not be held in a court of equitjr as valid
as original grants of the royal domain.
The Indian right to the tanda as property
was not merely of possession, that of alienation
was concomitant; troth were equally secured,
protected, and guarantied by Great Britain and
fipatn, subject only to ratification and confir-
mation by the license, charter, or deed from tlie
governor representing the 'king. Such l*7&*
purchaaes enabled the Indians to pay titeir
debts, compensate for their depredations on the
traders resident among theio, to provide for
their wants; while they were available to tha
purchasers as payment of the consideration*
which at their expense had been received iq
the Indians. It would have been a violatiim
of the faith of the government to both, to en-
courage traders to aettle in the province, to put
themselves and property in the power of the
Indians, to auifer the latter to contract debts,
and when willing to pay them by the ontj
means in their power, a cession of their lands,
withhold an assent to the puithaae, which bj
their laws or municipal regulations waa neces-
sary to vest a title. Such a course was never
adopted by Great Britain in any of her colo-
nies, nor by Spain in Louisiana or Florida: of
this fact there is shundant proof in the reconl,
by public documents, and the testimony of the
highest ofiicers of the local government, the
laws, usnges and customs of which were well
known to the United States liefore the treaty.
The report of the commissioners on Opelouaa«
claims was submitted to the Secretary of th«
Treasury in 1S15; actrd on and approved by
Congress in 1816; in which report the commis-
sioners state that "the right of the Indiana to
sell their land was always recognized by the
Spanish government. Record, 328. The law*
made it necessary when the Indians sold their
sales by the Indiana transferred the kind of
right which they possesaed; the ratification of
the sale by the governor must be regarded aa »
relinquishmant of the title of tlu crown to th*
Pewn •.
MiTCBEL n AL. T. Thi UimiD Sr^iis.
■archucT [RMord, 333), ftnd no inBtance ij
bnown where permission to sell Iibb been "i
foKd {Record. 330), or the rejection of an I
41an *ale." Record, 33S.
In the present ease the Indian sale h&s be
continued with more than usual eolemnit; and
publicity; it has been done at a public council
and convention of the Indiana conformably to
trratics, to which the kinj; naa a party, and
which the United State adopted, and the grant
waa known to both parties to the Treaty
of Cession. The United States were not ^-
ceiied by the purchase, which they knew
Bultject to the claim of the petitioner, or those
from whom he purchased, and made no stipu-
lation which should put it to a severer test than
ISO*] 'any other; and it was made to a house
which, in consideration of ita great and c
tinued aervicee to the king and his predetesi
had deservedly given them high claims as well
OB hi* justice «« his faith. But if there oould
ba a doubt that the evidence in the record did
Mt eatabliah the fact of a royal license or assent
to tbia purchase as a matter of BpeciSc and ju-
dicial belief, it would be presumed as a matter
of law arising from the facta and drcumstances
of tha caae, which are admitted or unquet
Am heretofore decided by this court, the law
prcBumea the exiatence in the provinces of an
officer authorized to moke valid granta (G
Peteia, 788; 8 Petera, 450); a fortiori, to give
license to purchaae and to couSrm; and the
treaty designates the Governor of West lilorida
■a the proper officer to make grants of Indian
kada by oou&rmation as plainly as it does the
Uoremor of East Florida to make original
pmnta (8 Peters, 462), or the Intendant of West
ilorida to grant royal lands. A direct grant
from the crown of lands in a royal haven may
be presumed on an uninterrupted possesBion of
sixty years (2 Anat. 614; 1 Dow. Par. Ca. 322,
tZ3); or a prescriptive posBession of crown
hnda for forty years. 3 Dow. Par. Ca. 112.
Aa eDcroachment on a royal forest by a contin-
ncd poaseasion of twenty years will be pre.
somed t4> have been by the license of the crown
or by a grant. If no act of Parliament prohibits
It. II East, 67, 284, 4SS, 405. On tbp same
nriDeipIe, after a long possession of Indian
laDd* the law would presume that it was found-
ed on Kn Indian deed duly confirmed, or any
tiUe eondstent with the facta and the circuni.
rtaaeea in evidence. I Paine, 469, 470, Any-
thing which would make the ancient appropri'.
ation good (Cowper, 110), if it could have had
a lawful foundation, for whatever may com-
mence by grant is good by prescription. 1
KolL Abr. 612; 4 Mod. 5G; 1 Saund. 345.
The letiKth of time which brings a given case
within the legal presumption of a grant, char-
ter, or Ucenae, to validate a right long enjoyed.
Is not definite, depending on ita peculiar cir.
ennutancea; in this caae we think it might be
pnaamad in leas time titan -when the party
retted his elum on prescriptive poesession
alone. There ia every evidence, short of the
sign-manual or order of the king, approving
and conRrming this grant, and if that were
761*] wanting to secure *a right of property
to lands which have been held as these have
been, the law would presume that It once ex-
isted, but waa lost in the lapse ol time and
• L. cd.
change of governments. The more eepecially
as by the Tawa of Spain prescription for the
period of ten years has the same elTect as twen-
ty by the principles of the common law.
For these reasons we think the title of the
petitioner is valid by all the rules prescribed by
the acts of Congress which give ua jurisdiction
of the cose.
This cause came on to he heard on the tran-
script of the record from the Superior Court
for the Middle District of Florida, and mbs ar-
gued by counsel; on full consideration where-
of, this court is unanimously of opinion that
the title of the petitioner to so much of the
lands in controversy as is embraced within the
lines and boundaries of the tract granted by
tlir deeds, granta and acts of confirmation to
Fanton, Leslie ft Co. in 1804 and I80G; bI«> to
the island in the River Appalachicola, ceded,
granted and confirmed to John Forbes in 1811;
also to the lands and islands at and west of the
mouth of said river, which were ceded, granted
and conlirmGd to John Forbes A Co. in 1811,
is valid by the law of nutiona; the treaty be-
tween the United States and Spain, by which
the territory of the Floridas was ceded to the
former j the lawa and ordinances of Spain,
under whose government the title originated;
the proceed inga under said treaty, and the acta
of Congress relating thereto; and do finally
order, decree, determine and adjudge accord-
ingly. And this court doth In like manner
Older, adjudge, determine and decree, that the
title of the petitioner to so much of the tract of
hind which Res east of the first- mentioned tract,
between the rivers Wakulla and St. Mark's,
which was conveyed to John Forbes & Co. in
ISIl, as shall not be included in the exception
hereinafter made, is valid by the laws, treaty
and proceedings as aforesaid; with the except
tion of so much of the last -mentioned tract as
includes the fortress of St. Marks and the terri-
tory directly and immediately adjacent and ap-
Surteiiant therelo, which are hereby reserved
Dr the use of the United Statea. And it U
farther ordered and decreed that the territory
thus described shall be 'that which waa [*7<3
.:edod by the Indian proprietors to the crown
of Spain for the purpose of erecting the said fort,
provided the boundaries of the said cession can
be ascertained. If the boundaries of the said
cession cannot now be ascertained, then the ad-
jacent lands which were considered and held
by the Spanish government or the commandant
of the post as annexed to the fortress for
military purposes, shall be atill considered as an-
nexed to it, and reserved vrlth it for the use of
the United States. If no evidence can now bo ob-
tained to designate the extent of the adjacent
lands, which were considered as annexed to
St. Mark's as aforesaid, then so much land
shall be comprehended in this exri'pt ion as, ac-
cording to the military usage, whs generally
attached to forts in Florida or tlie adjacent
colonies. If no such military usage cnn be
proved, then it is ordered and decreed that a
shall be extended from the point of junc-
betwecn the rivers St. Mark's and Wakulla
to the middle of the River St. Mark's, bplow
the junction; thence extending up tlie niiildic
of each river three miles in a direct liiip. with-
out computing the courses thereof; and that
301
762
Sdpbehb Covbt or the Uhited Statu.
the territory comprehended within a direct
line, to tie run bo &g to connect the points of
termination on each river, at the end of the
■aid three miles up each river, and the two
lines to he run as aforesaid, shall be, and the
same is hereby declared to be, the territory re-
served as adjacent and appurtenant to the for-
tress of St. Mark's, and as such reserved for the
use of the United States. To which the claim
of the petitioner is rejected; and as to which
this court decree that the same is a part of the
public lands of the United States.
The decree of the court below is therefore re-
versed and annulled in all mfttters and things
therein eontained, with the exception aforesaid;
and this court, proceeding to render such de-
cree ae the said court ought to have rendered,
do order, adjudge and decree that the claim of
the petitioner is valid and ought to be con-
flrmed, and is and rernains confirmed by the
treaty, laws and proceedings aforesaid, to all
the lends emhraecd therein, vzccpt such part
as is liereinabove excepted. And this court
does further order, adjudge and decree, that
the clerk of this court certify the sams to the
Survt y or -General of Florida, pursuant to law,
with directions to survey and lay off the lands I
described in the jietition of Um elaimant, m-
soa
cording *to the lines, boundaries and [*TM
description thereof in the aeventl deeda of ««i-
sion, grant and conflrmstion by the Inditni or
Governor of West Florida Hied as exhibits is
this cause, or referred to in the record thenof,
excepting, Deverthcless, such part of the trtel
granted in 1811, lying east of the tract granted
in 16M and ISOe as is hereby declared to be thi
territory of the United States, pursuant to the
exception hereinbefore mentioned, and to miin
return thereof according to law as to sll the
lands comprehended in tbs three first herds
mentioned tracts. And as to the tract Isit
herein mentioned, to survey and in like manner
to lay off the same, so soon as the extent of the
land herein excepted and reserved for the use
of the United States shall be ascertained in the
manner hereinbefore directed.
And this court doth further order, adjudge
and direct, that the extent and boundaries of
the land thus excepted and reserved shall be si-
rertained and determined by the Superior
Court of the Middle District of Florida ii
r and by such process aa i
prescribed
of Congress relating to the c
of lands in Florida, and to render thereupM
such judgment «r decree as to Uw •ball apper-
.dbyGoOglC
APPENDIX
It*. Wbit>. tor tht mppellant, sabiDltted tlic (ol-
io wins point! :
lit. TbRt ChU la ■ T*Ild BpanUh concenlon,
mde In Dbedlenec to tbe orden of tbe anperlor o(-
ttttn ■>[ the crowD ol SpBin, aDd Id MDlannll;
wllb the lawi of SpklD.
Zd. That It la ■ claim protected b; lb« treaty.
•Bd tatllled to eonarmation onder tb> tnatr and
lawa ot tbt United Stale* ,
Tbia waa a oelltlon la eaultj. preaented under
tba Act ot 1824, autbarlzInK clalniaDla to landa nn-
der Knoeh and Spaslab (UIh In Mlaiourl to la-
atltuU proceedlDga to tr; tbe valldltr ot tbelr
t]tlea. Tbe declilaa ot the court below was agaloet
Iha title of tba appellant bere, wbo iraa the petl
tlo>er In that court. The (rounilB upon vblob tbe
title waa rejected need ool be aUted. turtbrr Iban
the recitation la the Jud^e'a opinion and decree,
wblch apprnra to be a totmula. reduced to irorda
applicable to. and employed In erery caae prearnt-
ed to ttlm. Tbe claim ot the appellaDla. like all Ihe
reat, ia rejected becauae It la not made to contorm.
Ity to the ordinance tranaterrlnii the Jurladlpllon
aJMt power ot concedlnr and dlatrlbatloE Janda,
and the t«guIatlona made nnder It. Id 1iB8 and
ITM, to tbe Intendencia ot tbe Province ot I^ulal.
ana. The title ot the pftitloaer Drli-lnntpd In tbe
year 1786; and It ■
tlon to It that It .__ __.
created In 1T9S. and according ._ ,..
tor the riant and conceasloa ot landi
The royal order of )TQ8. and tbe ..
tba iDtendant Uoralea. publlibrd on tbe ITth ot
Jnly. ITW, have no appllcallDn whati'rer to thia
laae, and need not be further conaldered In the ar-
fommt or decialon ot It.
The rolea and prlnclplea by irhlcb all tbe casea
dependlne Id this couit. from Missouri, under tbp
Act ot lS-2*. are to be decided, wilt be found In the
Brat and aecond aectlona of that act. Clarke's
L«Ad Laws, 8T1.
1. Tbe lawa of natlona.
9. Tbe Btlpulatlons of a treaty.
■. Tbe proceedlnga onder the treaty.
*. The laws and ordlnancea of France or Spain.
IB regard lo tbe flrat, tba taw of natlona. It has
been eoDBldered Id tbe case ol Arredondo, I'ercbe.
man and Clarke, under a simitar law. and tbe prlD-
799*] ciple bss •been establlahed. tbat It Is an
nnlTeraal principle recosnlied and acknowledged
by all eirlllipd States, tbat Che property of the In-
habitants of a conquered or ceded provluce !■ not
affected by the chanse ot BoverelgnCy or doDiln-
loe: and that tbe low of natlani. as applied to the
Interpretation ot treaties In taror of lodlrldUBla, la
ts be elaased amoDf Chlnga tayorable. and there-
toic literally expounded.
The Btlpulatlons ot tbe treaty refer only to the
ascond article of the ceailon of Loalalana: In
which, pro forma, private pcoperty Is reserved lo
tha saneral transfer ot tbe sovereignty, dominion
ud public domain of Ihe ffOTernment msklnK the
ertry apedt.
aad Inchoate, eilstlot; . . _ . .
It will Dot be contended that the title undor
wbtcta the petitioner claims In this case la a full
sod complete Kmnt. but It will be conleuded tbat II
«a« held at t&e time of tbe transter to the Suited
HUtH by (D equitable title, wblch conatltuted Id
the petitioner a rifht ot property, protected by tbe
lawa af nations and tbe treaty, which miRht have
' — ~ ~~~Bammat«d by compteta (tantj and ought to
• Ii.
pweailaing aMter tba ttaaty and the taveral
acta ot CongresB In relation to the aame. auaa
nolhlDg more than Ihe Ir^^Ialallve conatrui'tlou Of
( oncnxs Dpon that Instrument, and the pilnelpler
settled In tbe ealabllsbment ot other clalDia ot a
'ihe laws and ordlnancca ot Spain are pcrbap*
(he most difflcult to he ascerlnlned of Ihe si-verni
rules by wblch tbia court Is to be eulded. In lis d'^
omjireberL
They co
priare la Ibe Taw. It la still mora ■
falllW, It la too often eiblblled In
lencles nf caprice, and the wantonnea!
Id thlB particular (
t ot positive enact-
litter In the different
here tbe will of the
arlBln^
an usurpation, wblcb iuiiionca on Ihe n
oUllKKtlon of Bhowiug Ibr v.aut oT au
he erftnllng officer; It 1
Er to maks the cession I
condltlODOf that dial:
em i'biriet hl»
' embrndnit I
view o
y of 1
een Fra
iln. all Ibe terrliory vrst ot the MlaslsalppI
cr, Including the Island ut New Orleans, was
■' - '■- - - "Ignaied ar '"- "
which
deflnltlvt Treaty of 1T03. Spain did not
•-•■ — ing (I'eS), Don Antonio de Ullc
" 'iorcrnor.General, and hlj4 Ii
Counil! ot the Indies were t
In the province whkh
ointcd Govcr
re tbea
tsbllshnient of thf'spanl<h aiitborllv ; and on tba
29th ot October. 1768, r.tcu tenant- Genera! O'Reilly
liroviucc to suppress tbe InsiirreitlOD, pnalab the
reikis, and tu orKanlie tbe ttoveinment. This lieu-
tenant.genera I took posspsi ' " "'
iK'd Don I^uls De I
imcnt. and returned
il O'Dellly, upon hia
's;.;;" i
- [•?«
Jt to Ibc Council of the Indl^^ bis
IS ot aove rumen t tor tbe province: and on the
ti ot Pebruary, 1770, be dtr«- vtp some reeula-
i'o( March. 1778.
.'he flrtt all artlcli
St. Loul" ot Illluols. t
Insii'uctlons Pilrndcd to
Mlsiaoun. To Ibe decl-
e Immnlerl.il, Tbe Drat
to the MlBNNi'lijpl. It tol-
' same eTlcDt In
k bla otbar transatlantic p
rr sm
Md idopU tbt lawi at the InilleB. Ttiew Ibwi, upon
tba principle tbat legla poBtei lorn prlom nbro-
laDI, comrui so much of O'Ki^llly'a tl-cu1iI1od» u
■re Inconsietent with tliem, belue luliiHguL'Qt Id
diU (0 ttie roval ceduli ublch kbtc these reKuli'
Uddii the force of !■«.
LI exitetia HI- General O'ltelU; dreir uu flve aeti er
InitructlunB for the GovFriiuient of LoiiLnlaDU. aa
appear* from a reiiort of Itie CoudiII of the Indlts,
dalwl 27lh February, 177:; ; Id mrlUcb report they
were recomoipiKieil tor the royal apiirobatlaa, and
mttt approred Ijy n cedula of ihe king, oii the -^'JO
Ot March, 17T2. The (.'ommlEsiun of Ihe Governor
and CaptalnCeneral Clalrez In ITin. refeia lo a
cedula ■□proving of one of O'ltelUy'a reEulKllaca,
on the 2181 of July, 1776: from whkh II would ap-
Gar thai all of the plana projecled by Lleulenant-
laeial Oltelily. *er^ not upproved until 177ii.
ibowD hy a correct cop; reci'Utly obtained from
It may be Important In other eaaei to Inquire
whi'ther tliL'se lDijCrui:tIona for nilnola are the game
aa those of 177(1 In other cases : and whether those
for Upper Loulalnna were not morr liberal; but In
thla case It la unneceiaary. The errtct. too. of the
lotrodudlon ot the 'awa of the Indlea In 1TT2, and
the ordinance of 178ii upon granti aa gratultlea,
— . .__ ,___ ...... .._ moj-j properly coDildered
-— „il Mtro show that
the omcea of gnvernor and Intendant were anlted
In the aame oSlcer. They wece divided at the [■-
■tancf of the Haron de Oaroudclet. The power of
tary (rovernora until 17!»i. uhen it was transferred
to Ihe Intendnnt. The i.Ji'Utennr - - -■
e nil
n the SI
-, 3aut as sut>-dL..„ __..
Wbrllier this tide la to be considered under ilic
general lans of Spain, wllh the presumption aiis-
Tnj from the conce^Blon or not, or nhi'ther It be
considered under O'itelUy's Instriicllon j being
^^ Cited "in %f^"i'm?nt : 'oTdln»nTO''ot"l'7d4 ; Ordi-
nance of ITCO: I.Fves de i:»nnna: tit. itesldencla ;
Ordinance dlrerllun ilepovt at deiiuly-^'overnoTS :
Laws Indira; White's Com. 57, GS. ns : iloyal or-
der for drllvery of l^ulKhinn, Whiles Com. 163.
Treaty for cession of I..oiilsI.:iia, white's Com. ICS.
T«S»1 "MB White. In reply ;
Tbe Atlomey-lieneral admlla thni Ihls Is a gen-
0 Ihe lorernor-
nine order or mrrey. dated in 1T9B, and tbat tfam
la no evidence lo Impeach Ita data, or that the act,
such ■■ it purports lo be. was duly eiacutrd at
the date specified. He Insists that the Lientenant-
Ciovernor of llnner I^olsiBna. nr Rt. I.antm «f
IlUui
of Lc
appellant, that he was
Een^ral ; but non cotistat. that h
The governor-general himself (aa all the tiauat-
lantlc authorities were) was subordlnale to tbe
klnR ; and II might, with equal propriety, tra eoB-
tended that no grant was good unless It emanated
from the crown. Such a position, if malDtalned,
would vitiate aveiy titit in upper or lower Lonlsl-
I)e admits that an order of snrTey and paaaesaloa
under It constitutes property : and aa property la
protected by the treaty. It must be conceded that
the Flslm ot the ap ■ — --
treaty, and entitled t
.ppellnnt la embraced b; tlu
drawn between
been conaidetsd
distinction attempted 1
Incomplete titles and Impcrfi
aod rejecud by this court.
The correct principle of decision by the Ameri-
can government of Spanish titles, mnat be a recof-
nlllon of perfect, and a completion of Imperfect
titles : as Ihey would hare been conaummated by
Ihe former government. If the sovereignly liad BOt
been transCerred to the United SUtea.
It cannot be denied that Ihe govcrnor-geiMral
would have approved and conflrmed tbla conce*-
sion. The United aialea. Uking Ihe place of Spain.
are bound In the same manner to ratify and con-
firm 11, and (hat duty haa been assigned br CoB-
gresa to this court.
it has been shown that In III similar cases where
applicaliona were made to the governor-general,
thai he Invariably gave a title In form, or ctinOma-
tory graol. He could not refuse, because, by the
ordlnauce of 1780, the deputy-governors were sub-
jected to tbe realdeucia : which was the aeconnt
given to Ibe Council of the ludles at the a<)minl»
.J- proceedings : a
t the governor-general refused his approval, the
arty was entitled to his appeal. There la no in-
lance in which sucb a CDDarmntlon was evei re-
tilled by tbe A
Teo*) •Argnmenl ot Mr. White, tn the
poges 137 and 147.
Heirs T. The United Statea. Keportsd
UK. Whitb. tor anprllnnts.
These two cases will be considered together. Tbe
___ e Bddttl(__. .
thssa claims. It la (bat Auguate Cbt
obtained another conceHSion which wi
Daniel Cinrke and conflrmed to Mm.
nothing In the lawa of the Indies, nor In
•Ion of O'Relll.v. nor Die ordinance ot
1778. which forbtda more th.in one conce
tidivldual, lie was entitled to a coac»:
iv-pen. 1
Useful „ ..,.. -
Whetber AiiRuale Chouteau was entit'ed lo an-
other concession, however, liefore or aflev his sale
to Daniel Clarlie, was a question eiciusivriy for
tbe Spanish aulhorllv. it Is |Ui»ed (hnt the sec-
ond concession was made. The f.ict of Its having
been mnde by an agent of (he crown whose duly
eate auch queatlons without S'lneal or reversal.
whtlal tbe province remained under the dominion
ot Spain, constltnted what we call a res ad.iudlcata.
ilsh wood tor a
eral iawi
e Morales. The
1 iatter regulations, tt
las neon auown oy nocuments recently received
ram Spain, were not s|}proved by tbe crown. They
lever bed the force of law, and were mere regula.
ions of police. promulKSted for a guide to eok-
■"--■- -* -ista : but changed whenever dr-
Ired.^^One of these grants la for
1 demand lo tbe
and another
Tte _
-.cord, teslincd hi
?r. and bis desire t
d upon I
lough founded upon an authority as certain
Hno unequivocal as these, will not be discussed
here, as neither of these are liable to the objec-
tions talien to othera rejected by the Dlatrlct Court
of Missouri.
Referred to, Ordinance of 1798, I.Awa at iDdtes;
NovlsBlma Recopolacion, tit. Prescript Partid. tiL
Prescrlpdon : ncposillons In Commissioner's Re-
''pposHInnn on South America; CsrtlBed
ita from Spain.
raten I.
BBNBX NIXON and JobB ,
I Od •
r tM*« M 01* k BUI t SfUm
To Ibt AprU Tenn of tbK contt In 1828, i
Id *qgliT WM brongbt bj P ' "•-—-- —
Benry NIxoQ. ciMutor -' "-
Rsa ol the tull, other
alilnBnt*, amoDC )rhoii] w*a Joan
Lucuhln. EngfaDd. He claimed ■
to the teslKtor.bj deieent t
tator. —
Ikt nld John AvdCD to be th* helr-i
resort, an «iceptlaai taken, wu i
tbta Mart Id Umj. 163-2. In Decemb
IId>1 dc
the Ull w>i dlimlsKd .
■Dt>; ftmn tlilt decree ,. —
Boprema Conrt at Jauuarr Term laat, which la
ovw depend Id a.
On tD« ITtn Jane lait. Jennet Jodu, and Tboi
u Poole and Uair, bla wile, flied tbelr peKtlo
•ettlas torth that the aald Jennet and M&r; a
the helra-at-law ot the tealatar. by lli
from John Aapden. "' '■■— • •- -•
anlt They
^ttlas torth
eideat'uncTe'oi'
. ^ — mi- ■■ ■
nJao aak leare
the orinlni
o w him t
pirtlra I
lowed, t
iffeeted by erldeact
e precluded trom tl
may alTect bii
ice allowed, the
answer to the
: 1 Ven. 118; Ult. £30:
1. 643) or diaprote It (Beamea. 311).
The prellmlnar; qneatlon whether the bill iball
bo Bled, la therefare an Important one In alt caaea.
and In nome the only on* ; tor the new matter
■ay be ot the moat coneloalTe effect. It once It la
•-■--'-iced Into tba eauie, and iU truth admitted
le ont In proof. Id this caae It !■ especial ly
._. . ... .. i_ .,1 It, beartngi, u well
a Inlhe courU
ia^hlchTt'la aouRbt by tlie
., lew and re-eiamlne on Ita
y fnyolTe prlnclplea hl-hlv 1n-
„f to anlton, tha pmtenloD and the pDbllc
arltbant taking Into conalderatlon the mainltude
it the mm in eontroTeny.
Bllla of rerlcw In conrta of equity ere an anoma-
~i the ayatem of Jarlaprudenco which preTatIa
— land and tbla country ; no principle u better
' eraal apptfcatton. than tbat
iJSf:
w at tact, after the ti
n wUeb they are rendered, i
•( the United Btatea cannot r
j| Inferior courts while Ihey re-
_ Conrt of common law can rt-
K tbelr lodcmenta only In ooe caae. A writ of
error eomm Tobla Ilea on an error In fact : bin for
aa cmr In law they cannot raierae (heir own p™-
nffflnia. EOT can tbey pant a new trial on newly
diacOTcraJ •fldance after final ]Ddiu«at A conrt
imecil any entry of tbalr
otherwiae (ban by the powera of an appellata ooart
Jud^mente ai common Ian are reviewed on writ
of error na lo mntlrra it law. on matlera of fact
they caonot be rcTlard by the court of error ; tbla
la not only a rule oI the curonian law, but an m.
preaa provlalon of the tweniy-second aection ot
the Judiciary Act; and ot the aevenlfa amendment
of the CuDBtltutlOD.
The qupgtIOD before the anpellala conrt la. waa
the juilk-ment correct : not tbe irounda on which
tbe Jud^oient professed to proceed, e Wheat. 603;
e gtren on the whole caae. Jud.
ulhorllr. conferred by atat-
HBge, dpflnluE the case* la
Judlcated by t:
r In h
. equity, i
No act ot Parliament has glTcn to any court tha
power of laklUB coKulcance ot appeala from conrta
of equity, and none bad aaiuraed It before 1620.
1021. Up to the ISth Jac. 1, there waa no prece-
dent of even a prohibition lo a court of equity In a
palatine. 1 Roll. Rep. Z4S. SHI. Tlic flrit
■— ■ " g the f'rolPntorate, In ['TTl
Stannary
that laaued was 'during
laoi. 1 Roll. Abr. :<i
Court In the Duchy
-f Cor
ippei
I lay
__ _ — .. Walca. and If there waa no
prince, (hen to the king in council. 1 Roll. Bep.
About this lime' the Court of Klnn'a Bench
a of tha Uedea ftnd
before indgment, or tt
Bulat. 197. 2YT,: Cro. .
tlHoD to (hr kine (3 F
the matter to the lud;
Ihey should think It o
The reaaon' of annlyinjt to tbe klnt waa that the
'~ ' " alttlni; and
4 Inat. 80, H;
IS 3.
without hla I
d by bis authority; bla de
of Ih!' kin.', not to be al-
ii. Glib. ^'or. Boo. ISO.
Bench of the Hsfat
(1.) ■>• mm, 9 rMw«, PM* *
• b ed.
by the Klng'a
Lu K.uui yruu.iPLtlona to the C .._ ,„ .
controyerey nhlrh 1>rou(ht Lord Coke to hia kneea
brfore tlie kluK In council : and It was dctennlned,
after a reference by the kinc to Lord Bacon and
otbera. by a declaration of the ktax. (hat he bad
•nroltcd Id rbinrerT. tbcre to rrmalD of ri'cord.
tor the belter eitlnpiUblar ot ^he like difrereucei
■Dd qucatluna ibut umy arla« Id Cutme times." 1
Ch. Uep. Apgi. 1-DO; Cirej. 181, 18^, A. D. 1016.
From tbli lime tbere wa> do power In anv court
to r*TlM the decreea ot the Chancellor (1 C. C. 44.
4H). until Lord BacoD made aa order on lue suli-
lecl ol bllla ol review by the Cbaacellor himself :
bill dI review, or >□; other subject, until the
Houw or Lordi. In lesu. 1021, lUBtalned an aprwal
from ■ decree of Lord Bacon, 3 Journal of the
House of I.ordB, SO, Ul, QJ. tiS. ST, TO. 13. This waa
beld by the ComBions to be a oovelly. and ivus re-
sisted from lime to time up to 1IU4. 3 Ul. row.
4S4 : 1 vol. Deb. Iloiiae of Commoaa, 210. 240 : 3
vol. so;;. 308. since which time It haa been «t
„, .-'sts entirely
on tne order of Lord Bacon : but as It haa '
acqulcaced In. nod acted on from the time o. ...
adoption. It forms a part of the iKw of equlti
which ban iH-en adonlcriM- th- Cr^rstftutHin of the
United States M applicable to all caiea In equlti
within [he jiirlsolclion oi lUc toiirta of the (Jiillci!
States. 3 I'eIer-<. 448. This order la to be consid
ered aa an act of Parliament or o( Consrcsa, con
fcrrlnfi on coiirla of e>iult,v a new power, whlcb
ipn'lca
the fl
a la I
II of revlev
« the
fuaal 0
-onrt. Id thi.
original bill:
but no appeal Ilea upon aoy order or Intoi'loculorT
decme : ii la conflcrd to liiose decrees which dedife
flnallr OD tb« rlebta of the partlea before the court.
TT3*1 'The present application la for an order to
anpnif ihe prouecdlnis In the orlclnnl ault, the re-
— . .. maklnc of which la a proiKT ground for
peal In Knelaod (3 Atk, 34: 4 B. P. C, 463,
«eO; Glib. F. It. 188, 18f>) : but not bm. because It
li Dot a flnal decree, and b*ca>ia' It la a miitter
puretT In the discretion ot Ihe court, with which
tbe Buprerae Court do not Interfere Id ordlnarv
cases on queatlons of amendment. 0 Cf. 15; 9
Wheat. StTI: 11 Wheat. 302. Tbe same rule ao-
plle!' to that pari ot the petition which iirsT* to
have tbe decree onened for revision on thr new
" ed. being In^ the notion of an afpllra-
! dire.
ectlnc
object la tc
-- Justice •--
2 J. C. ftl
of Justice br dTIqk bllli of review for delay mih
.__ .. jg^ protractlnr llilcallon t» tki
I dlalreaa of the aavene parti.'
■ ■ if theTisr •
: subject tL
Into the eqtilty
which, they
Jurisprudence of tbe United Sli
The part; must make a atroni amdaTlt (IS Vea.
340) thai he had not Shy knowledge ot Ihe neir
matter set forth la hla petlllon and bill ot ttilmw.
at the time of the hearing or when the orlKln&J
decree was given: that It has aince come to hla
knowledge, and that tt coold nol have been pro-
duced or used tbeu, MIt, 3fl : 2 P. W. 284 : Utib.
F. R. 187. The words of Lord Bacon's order are,
"which maid not possibly have been used at the
time of the decree passed. " (Tot. 41. 42) which la
adopted In the form of the affidavit ( I Hurr. Bt,
TS), tbe moat approved treatlaea (Pr. Rec- SI ; 1
„.„ ^^ ,,..,, Jul cou. 104). and In Judicial
' IghMt authority. B J. C, 126 i 3
'■ ". 108; Boh. C. C. 381; 1
They i
f. L
14; S Alk. 37.
aOldavIt must be by the party, and not tlM
r (4 Vln. 415; 3 Kq, Ca. Ab. 17G. 176. pi.
itesa good reasons appear tor tbe party Dot
It. The court may hear couoter aOldavlta.
r proof In oppoaltion ( B Mason. 308) to the
lleged new matter before tbe decree, a
--- negligent ' -■
:0; 3 J.
t In
gatlafled t
2 Atk. C34_^ _.__. . „
l^^nonedg! ot
— , ., jaed active dill-
(le Vea. 351), or a reasonable dlllEcnce to
e the evidence before the decree. S Atk. 40 ;
:. 4S1. 11 necllgence Is Imputable to him,
vlll not be granted. 1 C. C. 43; 4 Vln. 409,
; Uou. C. C. 3B4: 2 Ko. Ca. Ab. 176; 2 B.
100, 110: Glib. K. R. I8i ; 1 II. & M. IS. In-
on or mlsjudgment Is no excuse (1 l>etera, C.
" ty had the paper Id a trunk
. ., lul did uot Vnow of It In
379) : uDleaa they had been In a
that they were In the trunk, etc.. In which their
were found. Ullb. V. V. 'S7. 1S!1: 1 Vea. 435; IB
Ve<. 354 ; 3 J. C. 127 ; 5 Mason, S12.
So It there was enough In Ihi^ knowledge of. >
portr or bis solicitor lo put them on an Inquiry ; U
by what waa before him he was sufflcieDtly ap-
prised to BDSbie him to aciulrc complete knowl-
edge, or enough appeared In the bill to call opon a
pnrly ualng reasonable dlllsence lo bring forward
Ihe whi^l" r-nc* . he la nnf airnm.Dxl tn «*- ^'- >-■■<
16 Vea.
country attorney |
-■"■— '■-'— the knu-.eu*
Tbe patty n
1 foun
a the approprlat
without
Rlllt ot review are not favored Id equity. It -
they are founded on the dlacovory o( "~
tbe petitioner most make a deposit t
coata ot tbe application (2 Alk. I.tD). and Ihe bill
must be (It— -•■" "- ' ' ■
2 Atk, 131
698; 1 J. '
leave to make It. and have It considered aa made
before the bill tiled. Dick. 223,
The party praying for tbe bill ot review must
perform Ihe decree ; It for monev, he must psv It :
It to convey land, ha must elvp xip nosaesslon (Tot,
but If Ibe act decreed to be done, will eillnculsb the
OortVa right, ila nerfnrmapc" will lie .nsred UN
(be bill ot review Is determined, but the sparing
must be by tb» order of the court i I'ot. 41-47 : 2
ITarr. rti. 120: 1 Vern. 117. SIM r Pr. Reg, 02:
Bohiin, S82: tiHb, F. R. 185. 187: 2 II. P, C, 24.
a.: a Freem. 88) : or It the party la unaMe to ner-
form the decree, he mnat give giiod aecurlty or be
committed (I Ch, fa. 42: MIt, 70: 2 .T, C, 401 : 3
J. C. 128) : nnlMis he Is an executor, who may have
' review without performnnce. 2 Eq. Ca. Ab. 173 ;
! Mod. S43.
The reason ot 1m[«slng these condlllons la oli-
ma ; "therv la wisdom In tbe establlabment ot
-h a provlakin and It ought to ba dnif enforced;
I. 4 Cond. Cb. 114, IIB:
ly that he waa prevented
e, I>y the advlcs of one of
:e of the other. .1 Mnnf.
eee rules show th» caution with which tha
s of efjully act In the Ilrst attempt lo disturb
irolled decree: they are much more rigid than
iy other case, ahowing that a bill of review,
ewly dlarovered matter, ta considered as an e»-
p remedy for enlrime cases, which public rwl-
— Hike require lo be adtnlnlatered with
est the sanctity ot Dual decrees may
ire esses In which tbe greatest dao-
ilha in tbe aOldavlts ot Interested
In conformltr lo them If they ara
I not conlradlcted: and when th«
re to Rle the bllL the new maner be-
nted Into the proceedlnna In tbe or-
I It li atated In tbe petlllon and Ml
lal course Is tor the defendant In the
to niPBd and set forth I'li- orlirlnal
en demur to tbe new matter aet ap
Its reversal. Finch's Rep. .10. 209 : 2 Atk. SM ; I
Atk. «27 : I Vem. 392 : 4 H. * M. 24, M.
Or tbe defendant may take lasue ae lb* troth of
Thrse. too,
ger eilxis. If
latltndlDDUB .
parties : Ihe
to rnvlvc. aod dwldf oa (be
tb* tartm, u iDcEi'il. are th<
ourt r«TUw end rcviw tbc dn
It UaiOD, aoe. 3US.
H>n* Indiico ■ cuiirt to HimlE
111 thew prellmtnsrf QiMatloni
bFJ-n mnili-, by mi'
■usplclDUB applkal
piini tt t
Unot clearly relfTint nialerial', and would or mlebi
ban led (a a dllTerent r«siil[ if it bad been Ildowh
7T8»I and UHd al the hjadnj. MIt. Bfl. -fl- ; 1
Vea. 434; 2 Vet. 000: S Atk. sS. Se ; B J. C. IZT :
I H. ft if. IB: 6 Ml
tlep tbaa tbli
not rvDdtred mi id€ luii naa c
mora than live rean. during wl
nuf qneatlon wai ctmleded bcfc
■trnctloB ol I
vounser. and
nj court wblch call fi
tbe Una! decree complalneit or m
il of Uattbli
■ all the r
o( g
:t of k
utor, who iraa before the <
Is band, aubject to (h?1r o
law OD the tather'a aide i
Bed In Ihr penon of John Aapden. nf I
EBtland: he appeared, wai made a
one eoairated that character with uioi ; ii
toniiowmr wan ai to hia descent from (be i
or. I'boraa* Aapden, of mmoDBtun
a partj. i
[lartlea before tbe a
> the fact
Tbe c
aanelenl. and conflrmrd C
gr; „ ^,
lEWf rom w hic^i'unie
acttatpd. the decree aaauuiFi
tbe peraon of ine aald John.
UoD open after tbe
F fact of h'
mhlp li
• fouodfd u
flrmalloD of the maatera'
......_ ictlon of tbe will.
It waa not augiceated to the court that Ibere were
partlM In tntercat not before Ibcm ; It »a4 evident
that th« fund waa tallr repreaented bj aome one of
tlw psrtlei. for there was no character In wblcb
aa; one peraon could take under the will, which
waa not completelT died b; aome of tbe clalmaDta.
It waa not. therefore, a ca»e In which the conrt
eenld anaprnd tbelr decree tor the want of partlea.
•r 0B« which an appellate court could, on appeal,
rtverae. on that rround, a decree In favor of altber
dcaertpllon of clalmaata. T Cranch, 87 as
Ai the connael of the petlllonera have
In glTlng ,._„
I report and lo rehUeiine tbe Dm
anettloB of belrahlp tbe erldeacc
dear «■ " —•-'•• >■ >■
might hare beci
,-_ .. wiffi some mlBElTi
WUIUm AapAn beinf the old.
ktor'a father. Bat then we
Ha legal Bafflclcner, of wblch w< had
*■ . a dc— ■- ■"-- '- — —
What w« aald In
*t tbat qneatlon waa not
andatatood a a Teferrlnf
•at nanal In eonrta of l,
Iti ralra. that la before
I (o the fact of
itber of the tea-
• - indge of
on waa Inevitable.
o a future eiamlnatlon
ended, and conid not be
Luy other revtalon than
equity, and cona latent with
WbeB, In delfverint the oplDlon, we aaaomed "tor
the pnaent," that Jobn Aapden of Lancasblra. waa
tht belr-at-law, It could not he Intended that we
wmld allow a revtalon of that fart, after our power
aver tbe decree had terminated by an adjournmeat.
Tbt obvlooa aa well aa Intended meaning wai, that
ip to tbe time of a decree for *--' " ■-
I tbat decn
ouid t
t«pt open, tbat la. daring tbe ter__. . ._.
tua bitng presented, new parllra might have been
Introdneail, the pnUIcatlon opened, new evlitcnce
Ncalnd. and tbe eauae reheard on the queallon of
TT«*) belrablp, «t *anr otber matter proper tor a
*Am^; tat. whm a» Um bad doael nsea a
flnal deerea on the merlta between competent pal^
tlea. oi-derlng the payment of the luod to a claldl-
Bot. apd^dlamlsiilng tbe bm ai m all olbera. It waa
■L "h 5""*"
"in'the'ca'uairLVd' become'"* "re's "adJudicaU;
aleaa lor itae pui'poae of anpeal, there were
■tlea In court eicept Ibe plalnlllf John Aap-
nd the eieculDr, IwtweeD whom all paat <|iiet-
---"■■ ndjudlcated i--" -- - --
0 decide.
luld a
It la, then, no
lay be tbe luatlci
IB. bad tbey a*3<
issS J. '.*'4fl^7
Vem. nT, 17B: :i A
rolled, or tbe tern
new partlea or ne«
e for
n tbe t)
nrlng. 1
1 right of the petition.
>-d Ibclr claim n-lthin that time
oiirt bad power to decide upon
Hale time between the pronoiinc-
tbe deciei' In lOai; and. or be-
I.. ...e ilslNs of the ruurl at Ibe
:hlB country, a aiipiJlemental bill
Jill of rcvluw may l>e Hied, mak-
i lDtrodiici:ig uck mailer bb Ibe
top rehenrloa. Mllf. 71 ; :; Ya».
2 Atk. G34i Dick. SIS. ftlO; IT
ind tevental of tbe di
I. aiu.
aapplrmentnl bill. In
Lblcli It I* given.
e Introduced^ by •
1 prayer' for revl-
n VBt. 177; B
ITG: 2 J. C. 400.
Tbclr nraji'i muit lie cerlnln and apeclllc aa lo
the relief praied (2 Anatr. fiSl ) and not la tbe al-
ternative. 17 Vea. 177, ITS: S Maaoa. <I17, aiS.
When tbe petition la preacoted In time. It rrati In
the dlacretloo of tbe court to allow It to be Hlnl. In
the eierclae of wblch tbey will determine wlielbcr a
proper caie la made out (6 Wrbod, D15) ; but If the
term elapies. tbey cannot act upon ilie pcililon.
.",r..",v.;r
of Jl
Jtled. I
e causea Bpeclfled in the n
i-cvlie tbe
of review.
h form the
T^'ia'^!! th
CB»e — have t
bill of revlev
Iboie prescDl
authority to open Ibe decree
t be pursued atrlctly. The
it whclher the given atale of
wlinln the mica ^ but It he
I cannot permit the petitioner
idng qucatlon In the preient
B ; If lo, a
fPenlDg t:
Hi and that tbe nbstract Juatice and eqal-
ir claim would bava pr<:valled bad It keen
in time. Tbe evidence wblch la before aa
. with that wblch haa been known otbet-
kea out a caae (till ciplaloed) of an Impo*.
Bv'tcr aa to original right, long neglected
Itherto beei
— _-^ -wording to
of law. BO that it haa beco:
tnbllBl
doned for
right, a
., BO th-'
if (bla .— _ ,. ...
nnrcveraed, a princely fortune awalta Um u
ilr-a(-law ; it haa been recoHTCd bv the e»er.
■nil si^tive vigilance of tbe defendant, wblla
In thla •country ^waa aban- 1*777
batract Injuiitke : wblcb. aa In
la not eaay to aay ; aa Judgea, i
tb the rtlallve clnlma of the tv
atood at the death of MaCtblna
. BOW nothing lo do but muat eiai ..
they were when this petltloa was Bled :
Ill
•ddltlon, oar llnal itrrtt Id tftvar ol bis : whether
wt taav* BctMl erraneouili la not for na to aa/ -, the
eaiiH la now ont of our Jurladlctlon. gnloia II cac
ba again brougbt wltblo It bj the mactera act up
now. Whether It can or caa not. [t [■ not for ua lu
look to cooaegueDce*. we mutt folluw the courae jii-e-
•cribed b; law, to ascertain, firat. our power ac-
CoRlIng to Ike rules of egultr to opi^n tbia decree
OD the caae prcaeatcd : next, the Bufflcleacj ot the
eanaea allegciJ for Ita eierclM, The Importance of
Uie caae. la all reapecta, Induces ui to take a view
of all (he polnta It Involves, as II l< desirable thai
tbo nneral principles wblcb govern cases ot this
deaerlptlaD, sliDuld he so eiplslned as to leave. lor
tbc toture. leaa doubt on tbelr application than baa
attended this.
■- "- lutborlty ot a court o( cbBocerj to review
Ita dw^ieea. rest, on the
oMerV(L^rd'B.™^^■we
eat to wblcb all appllca
"^So'lSLKS'^t
reversed, altered or ei
plained, being once enro
led, but upon bill ot re
ctpt it ba upon ei
wblcb hath riaen In time, after thi decree, and not
an; new proof which might bava been used wben
the decree was made.
"Nevertbeleaa. upon new proof which hatb come
to light since, and after the decree made, and could
not poaalbtT nave been tised at the time when the
decree passed, a bill of review ma; be granted bv
tbe ipeclal license at the court, but not otberwlae.
Tot. Proceed. Ch, 41 ; B, L. T. ^78. 280.
Ulseastlng b; an error in auditing or numbering,
DM> be eiplalDed and reconciled bT an order with-
out bill of review. Tot. 41, 4S. The terms "Im-
poaed on tbs partj" are apeclfled as twtore referred
to. Tot, 42-47,
These orders have eontlnaed
tke basis of equltr Jnrisnruden
dar (S Atk. SB: 3 J. C
England and the equl.., — —
Stales and of the United States. G Mass. 310.
The tirat quEBtlon Id order is, whether a bill oi
tctIcw can be flied In tbis court during tbe pen-
dsDc; of ths causa In the Supreme Court by appeal.
The question baa never been decided In the courtB
of equity In England, le V™. SB In a late casp
on an appeal from the roll
~ a petition presented foi
- —■•>.-.- 1 adverting ti
■ without
9 be respected aa
of tbe dllTen
bancellor decided
o Ble a bin of re-
iDg on an appeal
(4 <^ond. _„. — - -- --- -
direct decision on the point whether one could be
Hied with tbe Master ot the Kolla, after an appeal
to the Chancellor, or before him after an appeal to
tbe lords.
Their appellate
Buned one, from
neither conferred
and baa been, eie „ .. -
of tbe caae and the time, as either may —
■doptiDD of new rules or orders, which partake
TTS*] more of the character of •leclxlatlon than
tbe mere regulation ot the forms and modes of pro-
ceeding In tbe practice of tbe courts. 4 Brldtnn.
Eg. Dig. SO. pi. 46. Nat restrained by any act of
Parliament they permit or prohibit tbe action of
eonrta of equity on caaea appealed from, according
to their discretion.
By their ancient practice an appeal atayed all
Boceedlnga In the cause and It continued till the
>queney of appeals and tbclr abnse, for the pur-
poaea of delay. Induced the House of Lordi to alter
It and permit Ihe Chancellor to proceed after ap-
peal : this was deemed Indispensable, as an appeal
■Ight be Uken on every order on a petillon, mo-
tion, or Interlocutory decree In the progress of a
■alt Id equity (IB Ves. 184; 19 Ves. 218, 218: 18
Tea. 403 ; 1 J, C. 327 ; 8 1. C, 66. 68, I2S, 162) ;
thU alteration of tbe practice took place, as Chan-
cellor Kent says. In 17QB. I I. C. 80, It Is not
followed In New York, where an apoeal susoends
Eroeeedlaga on the point appealed from, but the
hancetlor may. In bis discretion, proceed If the
Court ot Errors Is not In session, or In posaesslon
«f the ease. 1 J. C, 81. S2T ; S J. C. 86, 08.
In that State, too, that court bas power to ren-
ter Ita practice conformable to that of the Rouse of
Lords, to prevent the abuse of appeals on orders
and Interloeatorr decrees (1 J. C. 127, 128 ; 8 J. C.
• ind Ihr " -"■ ■- ~ "--
0 suspend proceed] nga b
eiceptlon la aude tram nceesalty. Lard Kldan MM
that In doing ao, "fca acta by (ha antborltj o( tk*
lords— auch la tbelr clear underataadlng ; as thv
r,o,.».n <h. ,.™-M_. It aniounta to tbelr auhlorlty^
the aettl'ed
an appeal
ter to Cbal
England
d New Yorl
! by the Chucellor oi
louse of Lords or Ci
*B competent to maki
9 V. 316 :
In tbe cauae. _ , _, ..
It Is more eipedlent" (aa Lord
Ike the application to the Houae
der of the 1
which either ,_ „
Ibeu the Chancellor may proceed In tbe
termination, when an appeal may be takei
whole proceeda. — '- •■■- " " ""
184 : ifi V. 58B.
of Lords than tothe'coQr't' beTowi
made upon that occasion may be the subject ot ap-
peal, and It is difficult to determine bow far ap-
peals may go" (15 V. 182), and If tbe court couiil
not nroceed after an appeal It "would make a chan-
luit tbe greatest nuisance." 0 V. SIH.
be denied that these are powerful
reanons lor ihe prevailing practice, when the Info,
rlor and appellate courts have power to adopt It :
ibey cannot, however, be applied i * '
from the decrees of tula court, wt
ones on all the matters In control
parties, leaving nothlDg on which
to act except In their execution.
The appeal la by a rlgbt given by a statute, of
•v. k — *.. .. _t..t .t. pjrty cannot be deprly*^
•7t':
It be flnal
Iween tb«
If he gives the security required by li
3 D. 78.
532)
peafe.
>perate aa a supei
) to the eieeutloi
nature of an appeal or writ of crroT,
1 supersedeas (3 Dall. 87, 118; B Cr.
cree or Judgment ap-
moved from tbe lo-
'cavlng the to mat
._. When the appeal
f right, no Utwu raa
t favor 01 Indulgence,
proceedlnas at tbe rolls are not suspi
'- special order but that orlalna ._ _
>rder of Lord (Jlarendon. and Is not found-
™;.-v».
ed on any general principle of the law of equity, t
V. 317, 318.
D proceeding to suspend 'eiccpt ['TtS
the beneflt of the appeal would there-
it If the court below eoatd antorea It)
> of Lorda brings Iba
hence hj
operate aa a supemedea
CBUM anS* record l«foi _ ,_ ..._._,
lai), and by Ihe ancient practice prior to 1T9J
stayed all proceedings In chancery (IS V. 184),
and yet does In Scotch appeals. IB T. 182. When
tbe cause Is once before the House of I.ards, tt waa
necessary to obtain a special order that the ra-
spondenta be at liberty to go on with the account
before the master notwlthstandlag tbe appeal. 2
B. F. C. 108: M'Cartney r. Luttlow, SI Journal
House of Lords, 82. In the caae of Darafleld v.
Popham, the Court ot Chancery proceeded In tha
account after an appeal, when the house was pro-
rogued (1 Vem. 844) ; thia, however, was a special
i, tbe a
I, 1683, and n
parliament aat till 1880. __
an exception to the rule, wblch aeema not to bata
been departed from In any other case till the lata
practice was Introduced, 8 B. P. C. 2, fl.
In 1686, during tbat long Intermission of parlla-
-— - --"or. In the case of Hnrboa ».
bill ot review to be Hied, att-^r
, the chance
e^o™dlBn
f Lords. (
I lb* rroand tl
1 tba
(o the lords : the demurrer was overraled, i
bat the plalotllT waa
luns^dld not
to proceed any further wl.. _
__. Df the coaiL The plalntirs
pretend that tbe court could site
lose the benefit ._
VMa 1 I. C. liW.
vutd not act In tbe Inlarval.
J for the action ot the Chan-
?by death or otberwlae nIAt
tka UlL 1 Van. 41S. 418;
In ■ Brtoi ciM tli« datudiDt ««■ d«cncd to »d-
■var ■Ml) of tctIcw oriilemiir on tbc trton •»
tlpwd aJlei tbe dlsmlHWo Of an ■ppc&l to th«
Boom of Lonla: but It wu os an aliegitlon tbat
tho aoM wu eatTled bj colhiBloa vlthout defcDae.
uid the bcii(Bt of the order ol dlsirluloD wu uvpd
M the difeoduit. Floch, 468, 466.
Id tb* csao before t
orr, after ■ declsloo on appcKl ; on * Del .-
tbe lordi. iDfgeitlDi tbit tbat court bad^ prDctedEd
■-- ^— -n order made bj tbPm ^or tbe
r^rred to of Bamtleld
I bad been Sled '
ffPf^L
r^
pBnNMe of rcTeralDg It, tbe partj
were ordered to attend tne bouu (IG Joamal
Honae of Lords, 3S8) : ■ committee was appointed
to report wbat oiiRht to be done (Ibid. S30). wbo
reported tbat as tbe Cbaneellor bad not pi-ocreded
on the bill of rcTlew, notblns need be dons \>j tbe
Houae. Ibid. 332, 8 B. C. S. After tbis a pelltlon
was pmeuted to me lords, praying dlrertlona by
tfeem to tbe Conrt of CbancerT, to proceed an tbe
MU of roTtew. Tbe petition was dlsmlsaed, "In rr
card. It appeared, tbat tbe mullun ihcrelo coa
fabied o( bad been already acttled by Iba House.
B. P. C. 8; la Journal Hr - * ' — - -"■•
« Court of Cbancci
I (bat, by tbe ancient practlc
SSS^d.:
might
irtnnd
dit aa
It by tbclr special order : but tbat tbey
— -.-_ t In tba party and biB
lectee for tbe^purpoae
.1 ol review In tbe Conn of Cban-
a%
lane aeeina to accord with tbe rule* of
nd to be particularly applicable to tbe
iTStem of the Unlled Siatea. Tbe equity
powera of the Supreme Court. In ordinary cases,
aro eidaalveiy appellate by the ConilUutlon ; they
aiuot take coRnlunce of nn orlgtnat bill In equity
for tbe want of JurladlcIloQ : and as an appellate
ronrt cannot siiittain an appllcitlon tor a bllf of re-
view (4 Deaa. 13, 14), or an appeal from an order
of tbe Circuit Court refualng It, as It Is not a floal
dreree, and no act of Concresa baa eitended tbeir
appellate power to aocb a eaae (1 Tien. * Mi
Ml. GSV 1 8. P. 6 Crancb. Bl ; 0 Wheat. 44S). a
aa It la ■ matter of discretion.
A bill of rerlTor, a anpplemetital bill or tdll of
Tlew, la an orl^lnat UII, ao far aa It relate* to )
conrt In which It la Bled, and aay acttan opon It la
bt tba original power of tbe court wblcb gave tbe
decne over Ita own proceedluga ; appellate power
la axerdaed only over tbe proceedings oF Inferior
courts not on those of tbe Appellate Court.
So, on the other hand, the Inferior court, after
(he action of the Appellate Conrt, la bound by Its
decree as the law of tbe case, and must carry it In-
to aiecatloD according to their mandute ; tbey can-
Bot Tary tt or examine It for any other purpoae. or
Sany other or Inrtbic relict. 1 J. C. 1S4. 106.
ly decided on appeal (1 Ben. A Uun. SST, SGS),
or tor arror apparent In the decree or Ibe Apnel-
hl* Cmrt (S Hnnr. 228; Ult. OS), or Intermeddle
with It farther Uuu> to aettle ao much ■■ had been
n* Court ot AppMl deddea on the whole eaae,
■as giTta inch decree aa tbe court below ougbl to
htra made. Bnch la (he acknowledeed doctrine of
eaorto of review CI J. C. 194), and tbe express
dkcctfoQ of tbe twenty-fourth section of the Ju-
dklaiy Act (1 Story, 61), and the Supreme Court
Neunds tbe cauae to the circuit, wltb a mandato
W exaento their decree.
When thia la done they will not Rant a rehear-
■g, and. on a aubaeonent appeal, notnlne la brought
nknt tba proeeedfng aobsequent to the mandate
jnKat.S8;,S Clinch. lilSi 10 Wheat. 442. What
a Bnal decree fai (diancery la ai conelual'. .
-•> j-dgneat at law, 1 Wheat. 8IW: 8 Wheat.
"^ /!_»■ BMk an bal a* t» tba ncbta adjndlcat-
• Sat.
It la clea_, __
on a bill of review, r
Court In a csose remanded to them for
for error apparent, nor reverse their own decree
during the pendency of an appeal, as tbat would ba
a dlrvct^ Interference wllb the power of the 8q>
cause before them. It tbsy
should afflrm the original dei
simple
1 remand the
uld be tiound t
notwl thataiidlng
be equally obliged to ex
their rereraal on a bill of
Uul Ihey can do this, give leave to flic the bill aa
— A ,_ ■^j adding new matter end parllea
original r.
pnd the
<r la brought, tba court below
. .__ .__jrd bv adding "the ['TSl
— jf the court, wblcb had been accepted ta,
(12 Serg. * Kawie, 13, It) and many other caM8
where the Juslice uf tne eaae regul— ■■■
why (hey
ba~ ibat by
irts of li
luld not
I In al]Dwlu(
tbe bin of
win' be
. _ .... during tba
appeal aa berore. especially when
t tue bonelll of tbe new matter may
!w by the equitable llmltailon as to
r question. Should
r. and then It will be for tl
'Qulrps. 10 Wbi
Where an ap]
urt to open a
patent f> allow '
s In the Circuit Court, aa a >ut>-
a In elfhi-r fourt.
cose, the Supreme Court have
on all proceedlDgs to cany It
:lnal proceedings are always be-
ar aa they are neceaaary to de-
[KilDto or rlgbta la controvsrty
I, which were not terminated by
Tbey may Inspect them to ai-
ic demerits of tbe partlec. ao far
If Dew claim, and must decide
lamination what their duty ce-
rt, the learned Judge
?r the appeal, and It
;h the record - "
the appllcaiU
( Circuit Court (B
,- , 214), and a
lade there (11 wheat. SB
make amendments In casi
'rom the District Court.
r United S
There
Bcksrd V. IJsv
a strong analogy be
'">ls, and" a 'b'm of" review"
""" "■ : both proeeed-
- - - „ . - -_ --. --- proceedings In
Imlraltv and chan ^- -"" -• ■--•
. itlera of tact i ..
Inas are In the same court and It there
sal. It Is tor error In tact. In tbe case oi faeaara
" alleKed error was that Itovla
ble In a State court, whicb did
ord. but he Is allowed to sUte
r coram vobla. tor tlia purnoaa
jment. Bo here, tbe error la
be court decreed John Asodaa
...e petitioners allege that Joba
Aspden of London, ■ "■- ^-' ' --*
ask tor leave to die
them to prove this fact, a
r In the i
the deer
lewly discovered evidence ot facta:
— .n part, and after renderinf
h decree an we ought to have donft, will direct
■ ■•-*- '- -i for Ita aieeutlon, which wa
their naadato t
7U
Muit ob«7 : w» cmniiot mltcr, n*lew, rerlw, re-
*eraa or ciplda It tor (dt •rrora. however apMr-
TSZ*) ant. eicept mlBcABtfug 'or ererlcal mUUkei.
It wiri tw time eooush In decide wbetb«r we UB
rcTerM It for error \a tact on tbe bill now olTered,
0 allow l[ CO b« lllcd. If Id
perfect Jtlu
ni>Tt BUblect of Inquirv li, whether the petl-
entitled to ■ bill to reflev Che decree
(Pr. 1
other i„„
The Doxi
The rule
of err— ' —
280: - .--
Ult. 72), 01
■ult. tbf oolr queatlon In, wbeCher there wa:
privily between them (ad any of the partlea.
whether Ibey come wlthia the dcacrLpllon o( |
■OD* agBrleved by the decree, who may hQTe a
— - ■ - - ise aaa reverse It. Trlvlty U K
■ult. a> la ■ writ
BBS ; 1 Har. Ch.
.. ^ m.. ^4« : 4 VlD. 110 ;
e aggrieved by the decree-
told :
Z. IQ blood, a
__ .._ nure, aa the lord
hich may be reduced to two general
leadt. nrlvlca !□ deed, and privlea la taw, Co,
Utt. 2T1. a: 3 MaBOn, GIO.
frlvtty of title ia where a party dlea whoae iDter-
Mt Is tranamltled to some other person, who aue-
ceedi by law to the title of the deceaeed : If be
It be by
Bod adn]lQlBtra_tors_lQ the per-
o th<
y purchase or devise, he
title not iH'fore In the case, the p
aonal. 3 Maaon. Gil; Ollb. :
Harr. Cb. 123.
A devisee 1b hot a privity with Cue teatator, hor
la an assignee or vendee Id by privity (1 Ch. Caa.
1S3 : 1 Kq. Cas. Abr. 104. pi. 3 ; I'r. Reg. BU ; Boh.
C. C. BBS: 1 C. C. 1T4; Coop. Rep. 43, 44; Tot
ITS : 1 Vln. 426 ; B Maaoo, GOB) with the aaslgnor.
So In caaes of baukruplcy the assignor cannot re-
vive a decree In favor of the bankrupt, and In this
respect the rule Is the same in hills ot revivor aa
at review (1 Atk. 8S, 83: Com. BOOi. for privity of
Mile is not enouifh. It must be privily of title de-
rived by Ch(
0 part lei
rule la m
trlet that a bill of
In »hnge favor a
(2 Frrem.
127; 1 Ch. Cas. uu,
'■o»erruIed" Inslead of
only 1b favor of blm i
nndered or wluise bill
3 Bq, "■•
by m la take
1 e. CI, It t!
,na n
I the belr o
E nnd olitali
hclng discovered which have the morlgage money
ra tEe eieculor, the morlgsKeor eihlblled bis bill
ot review to be relieved uealnat the dercee. and
praying the court to direct to whom the money
should be paid, the court would not make the
SHCUtor a party, but left him at liberty Co sue the
■POrtgaKeor on the mortEaei " ' ""-
Rep. S2^ 64; 2 Freem. 148. 14
Eq. Caa. Abr. 173. 174.
; 3 Ch. Bep. S4 ; 2
"Vn^he pre'a'enV eaai (he petltlonera, aa devlseea,
_ « In privity neither with the parties or the teata-
tor : tbey do not claim by representation, aueeer
„ Had they been
ly of tbe partiea, they nroald not
their privlea in deed or In law. Their
M
_r'act of law, bat aa purcbaaers under tht
win. In which capacity tbsy must take,
■a we decide In tLe orifrtnal caf — *
purchasers
not comlDi " ' ....-.----- — ._ .
It la nnDteesaary to eismlne the cases In which
nmalndermeo, or otbsrs whoae tnCereat la affected
br • decree to which tbey ara not parties, mu
uve t remedy In a court at equity ; It la cnonsb
TBS*) for tbta ca«« that _ .
lea ors entitled to a 1>11
Btltlooers appear befon . _ . .
they do not come within that ._ ..
who are Msrieved by the decree, their petition .^.^-
■ot be received. Tbers ia but one case of this
tecrlptlon to b* found In the boohs.
A Tlear used tbe parish for tithes : four o( tbe
Krlshlonera were appointed to defend the anlt : ■
:ree psaaed aeatnst tba tour, and all ttie minors
la the parish (Vide Z Vern. 164 : 1 Eq. Caa. Abr.
teS) : the conrt aald that on* of tbs mlnot*, not
«ne of Oa fou, Uurntb •>* PUV M prlTj, mlfht
»\9
jw, and that
I either character.
have a bill of rerlmr, baeanae be la nievnd by Ik*
decree, I Ch. Caa. 872 ; Pr. Ref. 60.
It la obvious that thla case eannot aid tba paU-
tioners: It waa a pecallar one which ragulrM aa
tartber alncldatlon than to aUta It
Were wt to consider this general txpraaalwn,
"persona grieved," aa applying to all peraons whaas
Interest may be attect«f by a decree, we muat az-
tend It to deviaeea, purchaaera and asalgneea. In op-
positlona ta a weight ot anthorltj which JndleU'
power Is Incompetent to reoioTe or shaks.
On thla ground, tben, there Is an insuperabl* ob-
jection to granting leave to Sla the bill now ot-
fered : wa might atop here, bat as other Impor-
tant qneatlons necessarily arias on the caas. It la
■ ths merits i
mucb on one view as another.
The objection taken to tbe affldavlt la, wa tbink,
VI- rm.- — --- leiad to the petition
nanawerabla.
by one of the aoUdtora, and to the bill by the agent
of the petltlonera, 1b in the common ' -* -*■
' to original bills, which require
fn the common form of alD-
. - s, which require the verifica-
tion ot the compialnaut; they want both form and
suliBlance, as neither ot them contains the necea-
aary averment which a part* la iMnnd to makfc
Neither does the supplemental alBdavlt of the two
aaiicltors remove the dlDculCy. It preaenta tUB
case : That about the 8d ot Jnne laat they were re-
tained In thla cause, and in a few days alterwarda
discovered the new matter now set ap for a bill of
review ; the petition was presented immediately, '
containing an averment Cbat neither ths petttlonera
heir __.
existence of the mat
it could not have b
n/ way a - '
11 -Important fact "that the
might be tak
ter could not have been used before the decree."
It matten not that it was not known ; If It could
have been known and uaed by tbe eierclae of a
reasonable degree of active diligence at any time
before the decree, it Is a concluBive answer to tho
petition. How stands the Case In thla respect :
.,.. How
petitioners . ..._.._
:aa after the decree ; b^ the affldai
till near als
- ■• of 1-
Aande:
5 tin 1!
■. Nlion, ita subject D
-- --aneetlvely who claimea ine esiaia or
The bin of review showa that from
a suit naa depending in the Court of
EDi;1and aeainat (he same defendant
mhject metier to which the petitlou-
e part
a bill 0
opinion, that the peraonai
..1,1. ..-iraiog t- "■- '—
0 the Iswi
'd and belle'
property w«i
1 other 1
tbe ITnlted BtatM;
! ISSS.
.. Che Court of Exchequer, which waa dla-
missed in 1S31.
After this active pursuit of the fond and tbe ex-
ecutor in the courta In England for six yean, and
with the knowledn that it waa here In his baci-
for distrlhatlon, *they make no claim, em- I'T
ploy no coanael, or make any movement In the
aertion of their right* till the am " -~
when they, oa Che bill allegta. gave
tlona Co MF Bowen. which are not produced. '
petltlonera tbos circumstanced appear In a court
of equity and ask tor leave to file a bill of rerlow
on new matter discovered In the poaeeaslon of tba
executor, on the first search they had ever made, ar
authorlied to b* made, and that ten years after tba
death of the testator : It presents a case ot tba
most gron and palpable nefllgence, while It ra-
malna nnaecounted for. In such a case, we abould
require not only tbs strong affldaTtt wblcb 1* ti*e-
eaaar* In all cases, but the strongest one which
would be necessary from any petitioners, their ao-
llcltora. attorneys and agents employed to cosdnct
the salt in Enirland, aa well as their agent here.
Tbers mnst be a direct appeal to tbe eonaetenea
of all. t>y a searching diaaCle affidavit, wblcb
should purge tbem all of such neallseace. Tet
from England we have not one word, from partj,
■ollcltar, country attorney or Isw agent, though ■■
aflldavIC on another matter has been taksn la Lob.
don sines the pendency and kBOwledga of thla p«tl-
tloB. Mo person amployed In tbs suits tron ISSS
Patara *,
to USl baa cItsb u hit oath on any lableet. A
wtnr— bma been called train Lancubire to LohiIod
to tttXtj tba patlib rulatcn, tor Ibe purpose of
ibowlnz the pedigree of the petltloneri. Hii affl-
davit abawa ▼err actlre dl]]»Dce In aearcbLuK the
mliten aa early aa 24th Inlj laat but It a)>o
■hawa that tber wera found where thej ongbt to
— — known to ba, tbat 1«, Id
, — ,..'Maa llred and died; ai
that of tbe Bollcltora doea, tbat the papera ot the
teatator were touod In bla tmak In the bands ol
hla eiecDtor, and both, ao Car from removing the
ImpatatlOD ot neicllsence, coaflnn It moit conrla-
■iTely, la the abaence in anr atBdarlt b; other
eldlns tbla point
tbla point
articular
D petlllODB '
indecstDod aa de-
Ttew ; the]- mQit be In the uaual form, t
Iba aTermeot not only of the party, bat
Eaoni whose aegligcnee may t>e lir
peMtlonera, that (hey could no! po
y haa It In bla pover
tbe Imputation and doea not do It, especially In a
ra» lite this, erery preaumptlou Is against him.
t. therefore, be aadeistood as our decided
alDloB that to all petitions for bills of ,
Idavlt must be made by the party making tba ap-
plication, unless It shall appear from special efr-
enmataacra that tbe whole subject la so fully
la the knowledge of lome other person, sad tbat
ba can aatlafy the conrt on all matters upon which
nie most responsible and Bolemn act ot cItU Jus-
tangeroua. ti
deliberate Judgmcntt
vten It IB done
_ ,_.„ -t oath a fortun
peclaMr wben the decree polni
nnwt fiels— " '
ene. It there'lB~nothiDE toThro
apptlcatlon. The ru!es ot equi
Tided not only (bat Ibe — -•-
.0 make or procure ; yet. If bj
a proceedlnca will be
•ath ot ■ lltlnct party, be la not required on bla
Kto comply with CTery condition Imposed on
«■ Indlapen sable to any moremenl of tbe
cenrt. It be does not do his duty, we directly
Tielata onia In graotlng htm a dlspeosatlon not
* "-J tbe law or UBBges ot a court ot egal-
• not aatlsOed with the ease
tbe other hand, we
M aupport It by any
affldBTlt, however strong.
Tbis leads to a consideration o( the app1lc«tIon
M It woDld stand on aatlsfartory affldavlts.
Among the exhlbld In the ease of Packer t. NIi-
IB Is a copy of tbe bill Sled la chancery by John
Aapden of London, tbe fitber of tbe petitioners,
sgalnst Mr. NliOD. the executor. This bill la re-
terred to Id the bill ot review now offered for oar
allowancel and li therefore Judicially before
1 S^"
&s:
a Mil w
■ Died In 182S.
iE?i';
■Ing (I
t thect
will
ot the estate I
the eiscntar. The
1 and accompanying eodlella or memoranda
r* aet out at leDgtb, with an avennent that Mr,
[on bad proved It here and In England, had tak-
1 England,
•t all Oia personal proper^ of testator, tie Ibeo
avers Umrclt to ba the belr-at-law ; and as evidence
Ibaitot. abowa tbat Tbomaa Aspden, ot Slmonstone,
ti l4AeaaUra, was tba eomiaon aneeator ol tba tea-
Mm ami Unuelt. wbo bad lasoe twslvs children.
tba «MMt «( wkaM waa J«h> A•pdM^ Wbo died and ,
waa burled at Deptford, In Kent tn ITM. leaTln«
Issue only one son. Andrew Aspden, wbo died aad
was burled In the same placs In ItTl. learing Issua
ths complainant bis only child and belr-stlaw.
Tbat tbe testator was the only son of Mstlhlaa
Aapden, tbe third son ot Thomas of Slmonstonr,
the commoD aDCeator ; he also stated that si th«
time ot ailng tbe t>ltl he was elgbty-ave years of
age.
After their father's death, tbe petitioners became
parties to tbe ault by bill of revivor In 1S2S, and
its averments thus became theirs ; they also flled a
bill OS helrs-at-law ot the testator la tbe Kiclipqucr
Uls Is nreclsely
.._ ._ . . court Id 1834:
iT DOW Introduced as evidence
e tact alleged whlrb was not
TCrred. From the dret tO tha
there la do new
ot tbelr title, [k
iKfore subslaullt
lestatar. and a lawful
brotber, all ot which ws
now. John Aapden was
bom In 1710, he was I
hla grandfather died, a
of his father ; be must 1
family pedigree (or toot
e registers of births, mar-
s. traditions, hearsay, OT
r relationship by the tes-
yeora ot age when
D fumlllar with tbe
ben he waa seeking
!a aware ot tha neceaatty of provlQg bla uaae
at subject did he wast knowledge? pedigrr.
s easily attainable •at tbe places where [•
if>e be Is pre)
ro'uld'show It; If ha did uot «i'
1 Is gross negligence, la which
■• •- ■■ II that be might have
reasonable diligence, 16 v.
- -mptlon
case as this: It Is neltker nosslMe or credltile tbat
the counsel or solicitors in England would pros-
ecute a suit by an heir-at-law nliose succefi^laa was
to be traced back one hundred and thl rlv -si i rears,
without examining the reclslers : or that ft tbe
search hid been made without eTect. they would
□ot have advlxed tbe present pelltioners to Etve
some account of 11. The deposition of Ur. Neville
with tbe aecompanjlng copies ot the reclsters,
shows tbe facility with which they were obtained :
thoae from Pudcbam nod Whatlpy are dated on the
34th July, the same day on which Ur. Neville slates
hs went there tor the purpose : tbe others were ob-
talned between tbe 4th and eth ot August, and tbe
affldavlt taken on (be Sth. being only flfty-thres
daya from BUng the present petition.
Tharv la do averment In tbe bill, petition, or la
any other way, that all thia evidence was not in
possession ot the parties fi
their acgumenta have not
attested by tb
deemed new ma
This brings u
and a o
il It they surely
iglsters, therefore, cannot b«
the conalderatlan of tbe testa-
la Bible; and aa
I the petition to
■hould ni
^ amended — -
ot the testator. It may not be Improper to refer to
them (o avoid a future appllcatloD.
These memoranda are good evidence ot pedigree
OB the deliberate declarations of the testator, and
tend strongly to prove the fact that bis grand-
father, Thomas, bad twelve children, of whom John
was tbe eldest; this Is the very tact stated In tha
bill of 1S2S. and of course has not l>een newly dis-
covered. These memoranda also note the baptism
of several ot the children, with their places ot
burial, but none ot them take notice of the de-
Bcendanta ot any, except Matthias, tbe (atbec of
tha testator; ao far as they relate to the bsptlam
and burial, they correspond with tbe regis teca
proved by Mr. Neville's affidavit, and thus far dls-
They are not new In tact or to the knowledge of
the petitioners or their father. If they or either of
them knew of the registers before : they cannot ba
deemed by tbe conrt to be new It ths reglsti
\. MO :
. therefore, '
ilotf the decree. S
S Ubbod. 313. 818.
consider them »
eTiilFnce at [acts knoirii alDce 1S2S. Tbere are
Mime othpr f«ci> referrfd to In Iheat memonnda.
but it la nrcfMsry (o tminlre only Into Ihclr miiter-
lalltT bereatter. The cancelled wllla ue erldenea
not onl; nr tbe Inirndon ot the tpatator at the
time of maklnE Ihem (8 Serff. A Rawle, STB, Bea-
ton T. Kubn. C. C). bat ai the racornl'lon ot a
hln^iman or relation, and tbat tbere wai a person
Id the tamllj of the Dsme of T. I., an elder brother
•f the Wllflam. from whom tbe lesaor claimed.
11 B. 604. SOS.
In the will of ITTB. a legae; of £100 la (tWen "to
mr coiitln Jobn Aspden of I^Ddon :" In tbat at
petltloDtrs. I>ut It la no newlj dlao
In l»t25 Jobn Aipd^n kD°w tliit t
tbegra'
•Tide nee ot irrll
lelt of the
eed 10 In-
illon of
The order of I _ .. —
Tiew. is In its terms and Its uniform c
■ pnllcable only lo two case*, error la
bod J of the decree without further eian
fact: the error must \x- apparent fn til* .lenti i.-
aelf (Tot. 41, a C. C. 163; P. C. 280; 1 Bq. C. Abr.
81 : 4 via. 414. p. 12) ; It la in tbe nature ot a wrll
of error (4 Vin. 4[i7), and Ilea for want n' etri^sa
ot JurladlcHon (1 Vin. 2B2 ; a Han " -'
r In c
ved (4
r tact
. ..,. _. -J. 174 : 2 Frcem. 182 ; 4
Vin. 40T. 40S; 1 C. C. D4. DS, IDS; Hard. 1T4) ;
the decree la matter of record, and can be tried
oniT by tbe record (Fr. ReR. SIJ ; If there la a
mistake of fact, it muat be corrected on an appeal
i2 Freem. 1S2 ; 1 Eq, Caa. Abr. 164; Lane. OS,
6!)), or tbe decree la flnal r4 Vin. 40T ; 1 C. C.
231, 233: Boh. C. C. S8S, S8Q), and It I* no error
tbat tbe matter decreed Is contrary to the proof
(1 Vern. l(tfl|, tor after decree It Is presumed tbe
eourt Judged on the whole proof according to Its
purpose (Hard. '--" ■ — '• • >•- --
mined a
Tbeae hills are not favored, and a second
DOt be allowed, bowevcr manlfeat the error (2 C.
C. 133; 2 Uod. Ch. S4I). and If ■ fact la omitted
to be staled that la mntter of appeal. 4 Via. 408 :
a Keb. 2TB, pi. 48; 6 Maai. 311.
After a decree the proof a are no more to be ques-
tional than the Terdlct ot a Jnrr on " -'
(Hard. SI, 127), nor Is a master's r.
ceptlons. It Is ai eocelualve a
RinHrmed
Wheaton
J 13, ;
r appar
t apnlT to
fudgment merelT, and tbe que
he eauae la well decided, fiut
■ -iKhtor - -
rlna a d
brouBbt In contemVt T* ' C'bV'R" 64^ d6),"or"Uie dt
creela eonlrar; to s statute (4 Vin. 407; 1 B. A.
SB2). or for deirreelnit s sale under the auttaorltr of
a law without complying with )ta provlalons |S
Peters, 146) ; not lor any errors In the progress of
« cause, or a rnaster'e report excepted to. becauae
not Id the body of the decree (2 Eg. C. Abr. ITn.
pi. 12 ; 4 Vin. 414. pi, fl ; S B. r, C. 3B1, 8B2) : but
ft part Is repugnant to another (BobuD C. C. BSD.
or the decree rmpoielble (1 C. C. 80). It Ilea; (O If
the decree Is founded on a record made In a esse
depending In chaocerj. which wai referred to the
■ofldtor In the cause without the consent of the
party (1 Ch. Caa. 85, SB} ; but to make a decree
DonelDslee at to the facta. It maat appear that the
lurt rudtrvd their )Ddg*aBt opon them ■■ "od
reading tha pracfa. It apMarcd :" It It la oa nadlsa
the proofs, It la decreed that H do decrea ga the
tvldeace. a C. C. ISl, 183; Boh. C. C 888.
The new matter lo suataJD a bill ot review dosi
bare risen In time since the decree ( S Atk. S2t) ;
and not any new proot which mlgbt have beeo lind
wbeD 'the decree was made, ualeai It baa ['TSS
come to light since, and could not poaalbly have
been naed. at the time of tbe decree. Old. Tot. 41.
New natter mekna a tact Id esse at the time ot the
decree, not thea In tbe knowledge of tbe part*, ble
aolleltor or agent (2 Atk. S34 ; Dick. Slj. SI 4 : 2
Atk. 178), r^ -•-
though new pro
not be admltta^
>.: 371: 4 Vin. 4__. _ .
46] B Maaon. 312.
C. R. 196: 3 P. V
1TB, 179: a C. B
eon lain matf- r.,
and decree, a
waa In the former bill.
aiDlned on the former blifehairbe
might haye been ei-
,. ,. Tilned to aoT
„ ,. .,. 381 ; a Had.
Cb. 518: rr. Beg. 53) ; at where ''plBlntm would
examine as to a matter of lender and refusal, whteh
he could not prove before tbe bearing, but could
now proie 11, no precedenta could be produced and
the bll) was dlamlssed." 2 Cb. R. 66.
Nolblni: Is a ground to direct a new trial at law
that would not be B_ground for a bill of reTlew to
reverae a decree (1 (^i. C. 43 ; 2 H. Cb. 12SI : Dor
la the want of any evidence or mailer which might
bare been uted In tbeflrst cause, of which the
: though Ihe proof
:) the hill of r
the o:
■r wna sucb t
Duld n
: hare
rf la
enjoin
n after a decree was no ground
w M r r 4H. 44) : or where tl
a the original li
the original bill c
wllb reasonable dlUgeoce t
elfcctually atked.
If a paper [a produced b
ne as tf produced by
CTldeace eaanol be
upport of a case not
). 21)3 ; B Hast. SIX,
matters which harr
'fore the master or
OB ; 2 Atk. 634.
adrersary. It It the
r act up mast not be merely a
k. 37: 3 J. C. 127) ; It must n
iun.'^ IB.
party bad knowledge of tbe matter, k
edge of the portj befor
188: S Mason, SIS. 314) ;
bills of review Is conclnalve
low tbe kind Ot
The drat object la a
etfmalns closed ther
1 1 Ion of It, except a
On the plea ,,
demurrer to the new matter set np for opening It.
there Is a case for "review. Glib. F. B. 199. ["TBO
In this stage of (be catise nothing Is read Ijut what
appears on tbe lace of tbe decree, but sft*"- the de-
murrer it OTtrrnled. tbe platnttlT It at libertj l«
read the bill and answer or any other evidence aa
at B rehearing, the cause being now equally open.
1 Atk. 2(10 : e Maaon. 300. Defendant may, on a
Slea, disprove Ihe new matter (2 Mad. B48 : Ult.
30) : but It he demurs. It la then too late (o ahois
that there la no new matter dlsrovered, a> It etn-
Dot be iDBlated oa at tbat hearlDg. S Atk. 40 :
Atk. 817. Tht cotirt will DOt raverti " '-
aat MNC not n«d>IIj anlsiwd !■ tiM bill or pitl-
tm. Mtt. TO. 7Si B Umaon. 817.
It th* deciw 1i ravened, aa a nbemrlna the
CBBM ii CBUrei; opco te the partj Id *h<aa nTOi
tk* Oecn* la 1 &■ to tlig other, II la 0DI7 open u to
tbe facta complained of; If It la on new proof, no
ath*T can be heard (2 Uad. Cta. 4B3J ; there can be
BO aaw CTldenca on the merlta (6 i. C. 2C6 : 1 P.
W. BOO: 3 Vem. 4SS ; 2 flarr. Ch. 8S). without
■peclaJ leaTO of the conrt. wbleb la seldam granted
COIlh. r. R. lasi : thcae eaaea are erldence dulj
lakao and onllted ID be read : evidence of new mat-
tct not before readj ; papen alnce found and al-
lowed to be proved viva vocp. or to Impeach a wlt-
m^ before examined. 0 J. C. 366 : P. C. S* : 10 V.
»3e : 13 V. 4nt< : I v. ft B. 1G». 104. New evidence
li not beard In the House of Lorda on appeal (2
Bl. Com. 4S5 ; Oilb. Hq. Kep. l&d ; Amb. fiD. 91|,
thooch It mar be bj the Cbuacellor on Knpeal from
. 466; 2 A._
1). It betni li
:. 408
■°5"f.^
Bnt tba relation between these olBcsra la pecnl-
" "■ . -. -- appeal, ii no guide to
•here the rebearlng la
d the practice on an eh apiwati la
■a* eoorae of eqaltr. In caae* where the ._
bj the same mart which lave the original decree,
or to the proceedinn In the courti of the United
StalH on appeal. On ■ rehearing of a decree afler
tbe reveraal on bill of review, the parlv mnat rel;
•D the Qtw matter In hla bill, or tbe evidence al-
icadr la the canie; he can introduce nothlnE which
fee bad not aaalgned aa a fround for opening tbe
decree.
Tbe mart wilt not reveraa a decree for eitra-
naona matter ■rlalng In the prOKrcaa of ■ came not
in the decree (Finch. SB. 200 : 2 Atk. fi34 ; 3 Atk.
•2T; I Vem. :<B2 : 4 Hen. ft Mnn. 243. 244) ;
r muat be aach a
will bear on tbe bodr
etlaed on a writ ot
till ail Oit legal eScct ot a
Tbe error anlKned In tbli
tact. In declaring John Aepde
the heir-at-law of tbe t'
verdict ot the Jndg-
caae la an error In
oE Lancashire, to be
a thiB 1
It tbe a
: the 01
jn<la UkeDlntbe petltrt ., ._-
F to Ihli. The onir ground aaaumsd S/ the petl-
tlonera la. that thaj are the be1ra-at-law. In wblch
cbsncter the; claim Ihe fund In (he banda ot the
eiecntor. and thla la tbe only (act on wblch tfee;
reat their caae.
The; are not parties to tba original salt, tbelt
title la nowhere aet up. or appears In any part of
the proceedlDgi : It was not id the case or at Issue
In an; war. John Aarden at LaDcitHhire. claimed
In bis own right b; deitceot from William, the nl-
leced eldeal nocle of tbe testator on the talher'a
Ma ; he eatabllsbed bis claim b; competent evl-
deDce, wlthoat the lenat reterfnce to there havlDC
bacB an uncle older than William.
We have, then, to decide npon a new caae, bj a
BBW partr, on a new iltlc. no tact of wblch ap-
pend before tbe nnal decree.
The first qneatlon la. whether an entire nei- "*'-
:o the I
dam.
Ins advsneir lo all tbe orlclnal parties.
TS0*1 considered *newlr discovered malier. lut
tht opcniDg ot a decree. On this subject we have
OO donbt There Is not onlf no precedent for ■
mtw trial at law, or review In eqolt;. In sucb a
caae. bat It la impaoed to the whole coutae of ad-
tndleallon. In an eonrta. from the date ol l«Td
Bacon's ordlDhDces.
It we take a aarrower view ot the case, tbe mat-
ter set up la ODlr corroborative and FonflrmatorT ot
tlM reglstera. The petltlooera do not pretend that
the tact ot thalT belrahlp Is matter come to light
•iBoa tb* decree passed, or that the evidence olr It
hr the reglStOT* baa been oewlj discovered, or
oaald Bat have bcm naed at the hearing. They rrst
»k.lr Ull ot review solelv on the memoranda and
■ ot (be teatator, discovered In June
taat. c^in ^ ibese registera, duly attested ur
esrttIM, are good erldeara of all matters of pedl-
fica. 1 Dall. 2 : 10 Berg. * Rawle. 289 ; 1 Tales.
IT, IS. Ther are tbe reeorda ot facts, beyond tbe
■ ■■OTT at man, eolttled to great weight ; they are
-■ — «-■ — • to establish pedigree of a much
r than hearsay, whirb ts also ad-
fta to dlstaat facta, they are the prlmsry and
BrtBdpal avIdeDc*, not to be lightly qneatloned,
Tka coBtemporancooa memoranda ot a member of
Iks tanlly, aaO* tr«a hla osro bnowMIca, may. In
John; hll
__- must theretore, have been derived from
hearsay, family papers and entries, or from the rcg<
... — .- .^1: (jg registers must be consld-
— ' moat authentic evidence,
Istera. In Ihls
primary a
a family pedl«rea was
, Ihe evidence ot It by
Ibe registers could have been used at tbe hearing.
the petitioners cannot be now put In a better situ-
-■-' — than It they bad been parties and bad pro-
Tbe delay of their application to become pi
tlea, certainly glvea tbem no belter claims to t
latertsrenee ot a court of equity, thai;^lf they b
> be dlatrlbaled
There la no prlnclpl
tlon to this subject (hi _ .
now permitting fha reglatera
rule ot equity In
oi'snda tbe effect
duecment to Introduce Inaamlsaalile, ye I Indis-
pensable evidence, that wontd make bills of review
~"' "' '" Ibe party would o"' '"
e Item
nected
■nd however c
llsbed It by tb
gence, and whi
. _ . _..J 'llile. and alt
iveoleut It might bare been to pro-
The effect of tbe registers may be
0 show bow good a case the pcti-
1 how easy If was lo have estab-
moat ordinary attention ; but they
-nay be If- ^ --^
dshlp that a
: tbe fault ot tbe law. It tbey
right to this eafttte. Ibey had s rem<.dy
■ ■ -- ■ - 1- (•t81
le only by their n
lortlon of tbe time and money eipeuded In Eng-
and In litigation would have sumred long ilnce to
atabliBb It here. No principle Is more approved.
■est rigbt may be loat by negligence. It la necea-
lary to the peace ot society and tbe security of
memoranda and can
and materiality. In p
the original cause.
sod on tbe two papers
papers
uch, tbe stock from wblch the petltlaaen
;e their desceut; tbe memoranda aa to tbe
brought down, hie death, burial, and plic
time, only Is noted ; this leaves a long chai
tween him and tbe petitioners, aa to wbli
J. .. (ntry In Ihe Bible glvea no Ini
The cancelled wllla show tbat John of I,«Ddon
was the couain or second cousin of Uatthlss tbe
teitalor, and that the petitioners are tbe daughtera
of (his John, but not that John waa a consln bj de-
scent from John tbe eldest son of Thomas : he la
e<)ually s cousin by descent from any of his chil-
dren. Tbe [Ddispeosable link to complete tbe chain
<■ wnnflng ; there la no evldencr to prove the rte-
II John : tbe law caoaot presume that Jobs
er way "by "(he "than "entry, mi "
wills. Had they all beon pro
in da or cautelled
'.".Tell";
I'",. I
t h> i> □
! fitbcr's aide.
It may iDduct ub ti
: but, tb«i], ror wbai
.UbIi w( Ttwrnr the _. ._ ._ __
opeDcd to recelv? evidence tbal rloet not make out
tbe petltloaera »h? If we do. Ibeo we muit id-
mll (be rrglsierg, or proof by tradlUoTi. beamy,
or MDie otbfr source not dow pointed out.
We cannot act upon tbe tefclaten, witboat iDak-
Inc law to auit tbe caae, and oierturnLng every
rule and prtnrfple which baa been conaecrated bj
Murti of equity for two hundred years; we Mn
act on no olber evidence [ban tbat dow act up
without a aecond bill of review to let Is new evi-
dence from other aaurcea than the reilater. or the
papcra now produced. If we could receive a aec-
ond bill, we could act on nothlns now before na i
tbe conacquence I* tbat tbe petltloaera have oei-
tber mode out a caae where they can be relieved by
bin of review, or aaalgned any canae (or review Id
tbe new matter aet up.
The dcfeadanta have objected to the allowance
of Ibia bill on the ground tbat the procecdlnfn la
tbe Court ot Chancery and t:icbequer In l':Dglaiid.
before referred to, and Boal and conclualve be-
tnceo tbe partlea to those lulli
tbe I
It It
0 the ei
atator by
ccssary to decide tbla
ly; but it erlBi-s only collaterally an a pi
TS2*] proceedlQE reatlng In the discrellD
court, «n wblcb tnara caa be no appeal, i
canoot (isat leave to Bit tha bill of iwrUm, U li
unneceaaary to decide It.
Had tbe bill been Bled, It would have bew »
nmner matter In nipod Iq Ijar, Or tO bave BCt OUt •■
r It may be pleaded t* as
jund of d
court would lie subject to aa appeal ; we tberafor*
decline living any opinion on tbla point.
There la another clrciimatance in this caa* which
baa not been noticed bj tbe eounael on eitbei aMa.
and to wblcb we advert ouly for the purpoa* ot Bat
being tnisundersiood in paaalng It without abaar-
Tbe petltloaera are certainly In time In mablng
tbeir application for tbe bill of review In laaa tlian
all montbs from tha Dnal d<^cree. But Ue (Cact
of time Is important In other teapecta tbaa aa a
- of equity : It baa been before us o& maia
than
anderatood
. rectneea of
would apply to
fuUeat consider*
resaed aura
-- ,.ct, aad moat .
ertalDlug any doabta at I
- -nlona; wt"'^-- "^
plainly and at length on the subject, a
be underatDOd aa entertalDlug any do _.
-■ 'nrincr opinions; whether tll«r
log of our farmer
: should be without a remedr.
1i society and tbe security of tbe
rLn...., _. ,,._, J in better preaerved by l*«Ttag
parties to suits to tbe elects of tbeir own nasli-
gence, than disturbing the sanctity of judicial pro-
cefdincs for light causes. It Is for tbe Intereal of
and the law aids the vigilant, Dal Um negUgonl.
The petitlOD I« dlatolsaod.
ExtnicU frcm the Opinion of the Circuit Court of the United States for th« Eastern District
of Pennaylvania, in the cue of P*eker v. Nixon delivered by Ur. Juatica
Baldwin, oa tbe 2etb of December, 1833.
Uattbiaa Aspden, tbe tesUtorTln the c
"Tbe same principle Is tbe rule Id Pennsylvania.
Id all cases to which the commoo law bad been ap-
Slled by adoption ; and It remains now tbe law ot
eacent of both real and personal estate. It the pro-
visions of au act of Aaaembly do not In tbeir words
the
s la In tbla State s'
a belr a
whom tbe real estate of a peraoo dying aelied and
Intealate. shall descend by the general course of
the law In right of blood and Inberlunce. Tbat
the common law ot botQ countries la the same, des-
IgDatlng tbe same person, by tbi! same tulei and
conraes ot deaceot, as tbe belr to an ancestor In
all caaea, nud the belr to hia eatatea of iDherllsnce,
DDleaa In tbe particular event wblcb has bapiicncd,
an act of Aaaembly has substituted some otber per-
"Tbls was tbe law of tbe province from Ita Urat
•ettlcmenl. It was eipreasly di^lared so by tbe
eigbth aiYtlon of tbe Aet of ITOS. and tbe heir was
referred to aa the heir Is tbe abstract, according
to tbe meaning of the word ai given by Hobart.
The said landS and tenemeuts shal' ' ■■ --'
193. lU, Bat*; 1 Dall. App. 40."
■That belr-at-lan
belts by custom In
rennsylvanlR. Is I
•Yeates. Tbe obse
M'Keau In tbe sao
2451 : -Tbomaa coul
as beir-at-law In 1
lime a person dier
r heir simply, does nat mian
etldfiit meaolng of Judge
Hon of Chief Justlea ['TSI
--- ■' -■■ ; 2 Uall.
considered a condllloi
inBj'lvanla, where, if at tbal
InleBlate leaving divera cbll-
dcHCi^ndc-d to all his children
oa having only ■ double por-
tlbly to
The Pldcst son c
of des.
:. in 1
of Assemhly applied, and by
ion law eatabllshed a apeclal
t he could be. and Is by tba
aw. Id tbla State, accscdlDC
court delivered by tbe Chlal
Halnea. and of Judge Yeates,
n K rase not embraced In atir
a praclsaly witk tba
caae to which tbe act
superseding tbe comn
eilstlng law, belc-at-
1o the oplolou of the
Justice in Johnson v.
In Mndley v. Hlddle, ■
set of Aasemblj, wbli ,
principle they fnld down In Ruaton v.
lug tbeae Ibree cosre In conjunction with Creaoe v.
Laldlei. tbey completely negative tbe propoallloa
here and In EDglaud, except such as Is Dsade by
custom or act of Aaaembly. This becomes a neca-
Mve. pregnant with Important consequences aa t«
the legal meoning of (he word belr-at-law. that It
not only Is that, wblcb the common law flvea It,
but that It Is not to be takeu to refer to the cna-
lomary or statutory beln. The term belr^at-law
convcya do idea, with us they are all hIa co-beira ;'
it Is thus a term of conlradlsttactlOD and of dealg-
natloa, denoting tha peraoD who has and caa hata
no co-baira, ttas sole iDbarltor of the aatate of tba
P«ten ••
dTc; the Iftw ol both conntrlc* recoguliea I
■ dan or a Dambcr o( pcrioiiB bavlDK equal rlEtal
ij apcclal law. aDd the heir at one Mnon eutltEt
L , — •- .1. ^... — t«le t- -■-•-' ■
conlaim with cfae rale laid dowi _.. .
ttom CauDdeo and Cl*rke to Flndlej t. Riddle.
Ihat csatomary or atAtutorj hcira caBaot take \>j a
if^^ ar_ devue to Iba beir-at-law, Ihg betr. or
__,.«ii«tqr7 «
words ol II mt
the Inw ot EDgland or of this S
wbicb we wil] DOW apply t
rlfht heir of U
IN different pcnons, clalDlnc Id dl^e
tan BDd capadtlea, and the wordi are Incapable ol
■nhetltutlon aa cooTertlble temia. without uprcwt-
iQf the whole eoarae of deaceot. and eeerT aettled
rule of laherlUnce and conitructlDO. Vide Qllb.
fin. 16, 102 : S Balk. BBS."
"In all the caeca which hare arlaan on the cod-
itrnetlon of wltla. the Sanreme Court hare kItcu
to the word heira. In til the modea ot eipreaalon,
the aune effect which thtj have by the commoD
law, whether aa a word ot purchaee or limitation,
K cMinTlQf an Mtate tor life. In tM, or In tall.
WheMTor If operates m a word of limitation, the
tMatea deeceod to the heir at common law or In
tall, u the caie ma; he, and not th« eapeclal or
•tatntorr helre accordlna to the act ot Ataemb);,
iba operation of which It canQned to caaet where
IB Inlettate U eelied In hie own rtsht, both at law
lad Id tqultT, of an estate at Inherltanca, deecend-
IMa to hla heirs cencral."
"We do not deem It nccenar; to examine In de-
nn the Tarlous casei which have been decided In
tbla State on the aubject of the deareat ot landa :
Ibe Ttrr aecarate and Talosble dtseat of Ur.
wharton fnmlthea, under the appropriate headi,
t boot ot autborltlea, which tnll; eetabllab the po-
dlioa at Jndite Duncan In tbe case of Ljle f.
■iebardi. 9 iBerE. * Rawle, B68.
"'11 la plain that from the data ot the charter,
natll lawB were made to alter tbe euccenlon.
land* deacehded according to tbe coune at the
eaiiBon law ; and not onlj deacent but enjorment
■nd pDrehaae, Inelndlni iTirr other mode ot aequl-
•ItloB, were gorerned bf that law, acquired and
TM*I •"Annming It, then, to be the aettled law
of both conntrlea, that the word belr, rleht heir,
er halt at ™— ""■ law, wlthoot tag OBalttrUac U
ift a will, are to be taken aa
It remnlus to lake a view ot
ler Bie wonli ol purcbaae or a
lei-soQ to take by the will, aa
IT deacent. Fearne, 79, a. 149.
I to be decided bi
the will of anyone but hlmselt. or tbai aDraui
Inleoded to be bis belr Inil ilie one wbo waa
BO by law In right of blood. Nor can we be
will remained analteried tor thtrty-lhree year
own dlspo^^iUon of bis esiaie Hhould be BUbJf
the cbangcB In the law of the Slate from t]i
time.
"But had thle been In his mind. It would
1B24 be bad a
ErOTlalon for
elr by the
John Aapden
ratoi appointed by t
eit of kfn, according
-e, EQKlBni^ who '
e had aubstltutcd a
inreasInK our moat decided
iBDden, the helrat-law oE tbe
to tbe whole ot his eetate by
r, which w* are not at liberty
.dbyGOOgIC
awGoogle
REPORTS
CASES
ABOUED AND ADJUDGED tS
Supreme Court of The United States,
IN JAIOJABY TERM, 1886.
BY BIOHABD PETERS
D,i,i,zodb,Google
awGoogle
JUDGES
SUPREME COURT OF TEE UNITED STATES
DURING THE TIHB OP THSBB REPOBT&
nw Hoif. JoaEPH Stobt, A«ocUte JmUM
Tha HoM. Smith TBOwraoii, AModata JiuUm,
ne Hon. JoBR WIXAH, AMoeiato Jnrttee.
Hw Hoit. HEmr Baiswih, AoociAte JortlMu
Tlw Hon. Jamu M. Watr, Aaaocikta JnaUa^
BcitJAiiill V. Buna Biq, Atton^T-GmnL
.dbyGOOgIC
OBITtJART.
John Hanlian, Chtaf JIuUm «f the Sn-
pTOme Court of tbe UnfUd SUta, died ftt Phil-
•dclpbU on th« eth Uj of July, 1839. Hia
renMim were convejed to Kchmond, attended
by Hr. Juitice Biildwin, one of the Keaociete
joBtioea of the Supreme Conrt, uid I17 Mr. Ser-
Kut, Hr. Rawie, Jun., Hr. Ingraluim, and Ur.
t«re, M a eommfttee of the Philadelphia bar.
Hia private virtuM aa a man, and Ua publie
■errieea aa a patriot, are deeplj tnaeribad in tha
hearta of hia fellow dtiiena.
Hia extenaiTe legal attainmeata, and pro-
found, diaeriminating judidal talenta, ara nni-
maallj acknowMfeii.
Hia Judrmenta apon great and Important «»
atitutional queitioaa, affecting the aafetj, tbt
tranquillity and tbe pennanenev of tbe ^vem-
ment of hia beloved country — am deciaiona oa
International and general law, diatinguiabed by
their learning, integrity and accuracy, are n-
carded in the repoita of the eases adjudged In
the Supreme Court of the United Statea, ia
which be preaided during a period of thirty-
four Tcaia.
Aa long aa tha ConatitutioD and lawa aball ea-
dure and have authority, theaa will ba laapMt-
•d, regarded and maintainal
.dbyGoOgIC
RITLES OF COURT.
•«•] •Jmhi«I7 12, 1838.— Mr. Qfty. hmring
Borcd Um coQTt, in punadnw of th« third re-
mIt* contained in the mbjoinad proceeding*
at the b*r and offloere of thii oonrt, to hjive
Mid prooeedinga entered on the reeords of the
Mart, Ifr. Jiutioa Storj mnftrlc«d aa follows:
"Tho court r«e«iTe with grMt lenBilulitr,
the raeohitiana of tlw b*r, in regard to the lata
Chief Jiutice Marahall. In this tribute of af-
IwtioMte reipeot to his memory, we mot cor-
dially nnite. It oontains a true, u It does an
■loqaent sirpreanon of feelings and sentiments,
eommon to the whole profession. The oom-
BOBitj have aoatained a severe loss In the de-
putore of this great end good man, who wee
rns in years and full of honors. His genius,
M leamiDK and his virtues hare oonfeired an
inperiihab^ c'ory on his eonntry, whose lib-
Ktiee he fought to saenre, and whose institu-
tions be labored to peipetnata. He was s patriot
ud stateamau of spotless integrity and consum-
■ate wisdom. The science of juriaprudenca
wOl forever acknowledge him as one of Its
cresteat benefactors. Tne Constitntion of the
I'nited States owes as much to him as to
■ay single mind, for the foundattona on which
it icata, and the espositiona bv wbidi it is to be
DsiBtsined. But above all, ne was the orna-
■oit of hnman nature itself, in the beautiful
Dhutrations which hia life constantly preaented
at its moat attractive grace* and moat elevated,
attributea. We who have been the witneaae*
sad companions of hia Judicial labors, cannot
M feel tbe desolation which has visited us.
Oar conaolation is, that he is now beyond the
nach of human infirmity, and (aa we trust) In
the poMcaaion of tbe rewards of a blessed im-
■ortality. This hall will never again lie hon-
•nd by his presence. But so loos aa it shall
timsin devoted to the administration of public
JMtioe, so long will it preserve the beat reconli
■f his fame. He, who In future ages shall here
ttk for hia monument, need but loolc around
vlil'} him and before him. "The voices of
Us etoquent and learned, which will here pro-
■oonce his name, will never fail to breathe
forth at tbe same time hit moat affecting praise.
It la tlie order of the court, that the reaolu-
tioaa of tbe bar be entered upon their record*.
And the Judgea will wear crape on their left
srma dm^g the term, aa a nt eipression of
tWir entire ooinddenBe with the feelings of the
ft meeting ot the members of tha bar of
M 8mn«me Orart of the Ihtted SUtea and of
Us offieera of Um wnrt, held In tbe Supreme
f^Bt nom In the dty of Washington on Tuea-
«ty, the ink day of Jannary, A. D. 1838, Ed-
■aad J. Laa, bq,, was appalatad ehalrman,
•al Waltw ^oaaa,
• L-ai.
"On motion of Hr. Clay, the following reao-
lutlona were nnanlmously adopted:
"The Hon. John Marahall, Chief Justice
of tbe Supreme Court of the United SUtes,
having deiHU-ted this life during the late vaca-
tion of the court, and tbe membeis of this bar
and the officers of this court entertaining the
higheat veneration for hia memory, the most
profound respect for his extra ordinary abilities
and great experience and learning as a Judge,
and cherishing for hia many virtues, pubtio and
private, Ua artleta character and his uniformily
amiable and unost«ntatioua deportment, both
in his public and private relations, the moat
lively and affectionate reeolleetlon, have ra-
"That, as a manifestation of their deep sense
of the great loss which has been auatninrd in
hts death, by the bench, by the bar, and by the
whole oountry, they will wear the customary
badge of mourning during the reaidue of the
"Resolvad, that the ofaairman eommunleate
to the familjr of the deceased, a copy of tbe
above resolution, and assure them of the sin-
cere condolence of the raemliera of the bar and
the officers of the Supreme Court, on account of
tbe great and irreparable loss which has been
anatained by hia family and his country, in tbe
lamented death of the late Chief Jnatlce of the
United States.
"Resolved, that in behalf of the bar and offl-
ceraof thia court, the Supreme Court be respect-
fully requeated, that the foregoing resolutions
may be entered on the minutea of the court."
■January li, 1838.— Mr. Butler, At- ['Ix
tomey- General of the United States, moved the
court to receive and enter on their minutes the
proceedings of the Charleitown bar, in memory
of tbe late Chief Justice MarBball. On eonsld-
eration wbrreof. It is ordered by the court that
the said proceedings lie entered on the minutes
of this court, and which are aa follows;
"TribuU to the Memory of Chief Justica
Marshall.
"A meeting of the Charleston bar was held
in the federal court room on tbe 17th July,
IS36, at one o'cloclc p. m., to give expression to
their feelings on the melancholy event which
has deprived the Supreme Court of the Union,
and the Union itself, of their moat distinguished
judicial luminary.
"On motion of Mitchell King, Esq., Thomas
Lee, District Judge of the UnHed Btatca, waa
called to the chair, and Robert B. Qilchriat,
District Attorney, appointrd secretary.
"The chairman having stated the object of
the meeting, in a course of remark expreaaivs
of hia deep reverenes tor tbe pre-eminent rtr-
toea and serricss of the dvceased, James I>
ast
Reus or Coirni.
uttble knd resolutioiu:
"Dsath bju remorcd from tba tphere of hii
dutiea, John M&nhall, the venerable Gliief Jus-
tiea of tba United States, a niHgiitrate endeared
t« hU countrymen b; % pur« and spotle** char-
>cter, distinguiihed bj pre-eminent abilities,
uid Ulustrious by his lone Knd varied public
■ervicea. The sympathy of a whole prople at-
tends the funeral of a publie benefactor, whose
life conferred honor on his country. But the
law and th« legal profeseioa of which he was
the head and ornament, are more than all others
interested and affected by this lotemn event.
His high judicial station was equally above
envjr and reproach; and the honor of official dig-
nity was enhanced and ennobled by his Intrin-
lie worth and personal merit. Though fall
authority aa Chief Justice of the United States
was protracts far beyond the ordinary term ol
public life, no man dared to covet bti place, or
express a wish to see it filled by another. Ever
spirit of partj respected the unsullied purl-
if^the jndee. and tne fame of the chief jus
justifled the wisdom of the Cnnstttu-
tion and reconciled the jealousy of frerdom
the independence of the judiciary.
X*] '"While we bow with humble resi^'iia
tioB to the inevitable doom of humanity , w<-
may adore the goodneai of Providence Ihat
apued his life to long to eatabllsh, by the au-
tDoritj of Ui virtuea and abiLUe^ the charw-
*S«
ter of that tribunal in whieh be presided. Eh
fame fs indissolubiy connected with the admin-
istration of justice; nor can virtnout emult-
tians of future judges aspire to a higlier dis-
tinction than to equal the wisdom and to eopj
the example of Uarshall.
"Resfdved, That the member* of the Charhs-
ton bar, in the death of Chief Justice Klanhall
deeply feel the privation which the eonunnnl^
have sustained, and will express their regret for
his loss, and respect for his memory by wear
log crape for thirty days.
"The preamble and resolutions were Meond-
ed by Mitchell King, Esq., in a feeling and elo-
quent address, and unanimously adopted.
"On motion of Joshua A. Toomer, Eaq.,
seconded by William I«nae, Eaq.,
"Resolved, That the members of the Cbarhs-
ton bar will oo-operato with tiie bar of tits
United States in any meaaure whieh may bt
deemed best adapted to the expression of tbaiT
deep respect for the memory of this distin-
guished man.
"On motion of George Warren Croes, tm%,
"Resolved, That a oopy of the foregoing reso-
lutions be forwarded to the neareat relative of
the deceamd, and that a copy be also forward-
ed to the Attomey-Oeneral of the United SUtes
at Washington, with a request to preaent the
same to the judgea of the Supreme Conrt of the
United States, at its nUt session.
"V. B. QUehriat, fieereUiy."
rc««ra ir
.dbyGOOgIC
BEFEBENGE TABLE
or 8U0B atsu
DECIDED m n. a sitfbemz ootntr,
iKuuj Tem. ISSli
VOL. 88.
10 PETERS AND IN 12 CmRTIS*S DBOISIONa
'pJS™.
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100-111
364
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111-114
300
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888
114-117
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886
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387
14-17
830
180-123
300
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831
188-184
809
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832
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121
420
411
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179
476
880
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183
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414-110
477
889-290
429
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488-470
498
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499
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Smith T. Ihltod State
143
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478-478
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887-330
443
478-178
801
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609
332-836
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602
330-337
440
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608
333
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188
440
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804
601
338-839
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604
840-841
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163
447
488-139
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841-342
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189-491
806
341-344
Dnltad State ▼. Bndlegr
131
448
491-494
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607
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494-496
806
480
497
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THE DECISIONS
Supreme Court of the United States,
A*
JANTTART TERM, 1836.
ANDREW D. HEPBDHN.
ttnpOm ot land! aold for Urn, oucbt to recelT*
■ literal mod benlKi coDitnietlaD In Imrot of thOM
•rboM titBUa wlillw otherwlH dcTMted i eQ»eelKllT
vbere the Umg mllowed li abort, i.d ample ID-
"r cItsd to tbi purehKMT, ■Dd a penalty l>
a on tha (nrnar. The purehBMr auffen do
-^i at bora iritb tnl] kncwledm that hla title
caanot be anolute lor two jean ; If It la defeated
7j ndemptton. It rererta to the lawfnl proprletota.
It would ■asm not to be neeenary. for the pni^
Man of jnaUce, or to aHectnate tba objecta of tbe
■aw, that the rly ht to redeem ahoold n narrowed
rlBht
■Ic" c.
It eoaporta with tha wotda and aplrit of the law,
U eoaMer an; peraon who haa an Intereat Id laoda
am (or tazaa, a> tha owner thereof, tor the pai^
teaM of Tedemptlon.
Aair tlibt, which la law or oqalty aogoonti to an
•narahip In tbe land ; anr rtnit of entrr upon It.
to Ita poaataalon. or enjoyment, or an* part of It,
*bUi an be deemed an eatate Id It, make* tbe
penon the owner, to far aa It la neceaaary to (ctre
Un th« rlsbt to redeem.
■~~ ' — ■" ^t require a payment — *— ■" —
ne law doea
•a oKer aod refoaal la made eqolTaleDt to a receipt
m tka money by tba treaanrer, and aathorliea a
Neoreiy iif um land by inlt, m It do aala had bean
United BUtea for the Weateni IHa-
triet of PennnlTknlft.
n* pUintfff in error Initltnted KB ejectineiit
for a tract of land altnated In Ljrccnuiiig Coaa-
tf, ia tlie State of Penn^lTanla; and exhibit-
fraated t
En, 17S8.
The title dalmed by Um defendant waa de-
riTBd (rom a purehaoe at a aale of the land
■ade hj tbe treaanrer o( the count; of Lyeom-
!■(, on the 12th of Jane, 1826, for ooont; and
load tana rcgnlarl; aaanaaed on the aame; the
•eOBta taxea prior to the lat of Febraarr, 182S,
aad Um road tana on the SEd Aprl^ 1825.
The lAole of tha land in oontrorern waa aold
lor iti dollara and flt^-two and a Wf eenta,
tha aHqgad amannt of the taxea and eoata. On
tha IHh JbI;, 1B2S, the tnaaurer of the eoun^
MM^ed tha pnadaaa ta the djfendast
It appeared In eridenea that tbe betra and
legal repreaentatlvea of Joaeph Fearon, tha
patentee of the land in eontroTeray, were the
children of Abel Fearon and Robert Fearon,
and the brothere of Joseph Fearon; iwth
brothera having died In the lifetime of the
patentee: and on the 26tfa March, 1B26, parti-
tion of the real estate of Joseph Fearon waa
made between tbe two branches of the Fearon
family, by which the premtsee in thia eject-
ment were. Inter alia, allotted to the heir* ot
Abel Fearon, in eonaideration of a moiety of
tbe lands of tbe Intestate having been allotted
to tbe beira of William Fearon. On the 2Ttb
Uareb, 1827, partition of the portion of the
real estate allotted to the beira of Abel Fearon
and Ute tract of land la controver^, became
the property, by this partition, of Jacob Fox
and wife, late EliEabeth Fearon, from whom
the plaintiff in the ejeetment held, by inter-
mediB.t« conTeyaneea, the premiaea in eontro-
veray, in foe-aimple.
The plaintiff, in order to overthrow the al-
\e^ei tax title aet up by tbe defendant, gave In
evidence an alleged redemption of the said
tract. No. MIB, by a tender, both to the county
treasurer and the defendant, within two years
after tbe said sale, of the full amount of the
said taxes and costs, and twenty-five per cen-
tum upon the aggr^ate amount thereof, aa
called for by law, 'The ease came on for [*l
trial by a JU17, at January Term, 1833, and the
plaintifl's oonnsel requested the court to !■■
atraet the jury —
1. niat nnder the act directing tbe mode of
selling nnaeated lands for taxes, and its seven]
amenomcaits and supplements, any person may
i^ally pay the taxea due on such land.
2. niat any man who may legally pay ancb
taxea, may legally redeem such land sold for
taxes wltUn tbe term apeeifled in said acta.
3. That any persoa has a right to redeem
Bueb land so sold, by a payment of tbe tax,
costs, and percentage, witnin tbe time named
in the said acta.
4. That any person having or believing bin-
self to have an interest in the lauds so sold,
has a right to redeem the same within Uta
period nuned In tbe said acL
' • ■ f Wood -. _„
rot tha
BDFBsm CouKT or tarn Uitrm StAna.
S, Hut any penon having tka duuge of
mch lands from the owner, during hla life,
after hia deecaae inteatate, and without a
eountdnnand of auch charge, haa a right to re-
deem luch londi so void.
T. That the treasurer under the aaid aeta ia
an ofBcer mJtiiaterial, and not judioial, and that
he ia bound to receive, nnder the abuve acta,
the redemption money for the land no uld,
under the (acta aeverallj ahove act forth.
B. That the treasurer haa no authority to de-
cide in whom tba title or ownership of luch
.landa, ao sold and offered to be redeemed, ia
vested.
9. That the nfuial of said treaaurer to re-
ceive the redetDptioD money for lands so sold,
is equivalent to, and dispenses with a tender of
the same.
10. That if the plaintiff, Oliver 8. Woleott,
and the defendant, Andrew D. Hepburn, were
citieens of different Statea at the time of the
action brought; that is to say, that Andrew D.
Hepburn was a oititen of PennByivania, and
Oliver S. Woleott was a eitisen of Connecticut,
or of any other State of the United Btatce, the
jurisdiction of this court attached; and that
4*] such 'jurisdiction was not devested by any
change of citizenship or domicile by the said
Oliver S. Woloott, after the institution of thla
BUit.
11. That a citiMn of the United SUtes, bom
In the State of Connecticut, who resided until
hii marriage and settled there upon hia mar-
riage, gained therebj^ a eitisenship and domi-
cile I^ origin, which is not devested or changed
unleas there be proved a citiwosblp and domi-
ella acquired by the said Oliver S. Woleott
elsewhere, in some other State or jurisdiction.
12. That any person holding an interest in
land as tanant in oommon, on which taxes
have been previously assessed and are unpaid,
has a right to redeem the said land frran a sale
for said taxes, within two years thereafter,
although he has been devested of his interest In
aaid land by a partition after said assessnient,
and before the sale for taxes.
The court, on the points presented by the
counsel for the plaintiff, gave the following
1. The law is as here stated. Any person
may legally pay the taxes asaessed on unseated
lands, under tne several acta of assembly of
this commonwealth directing the mode of
selling unseated lands for taxea.
2 and 3. But no one haa a right to redeem
such land so aold, but the owner or owners,
his, her, or their agent or attorney.
4. Ai^ person having an interest In land so
aold, has a right to redeem the same within
the period named in the said act, but a mere
Opinion without right of having an Interest,
confers no power to redeem.
5. Any peraou connected by title with the
owner, or supposed owner of the land so sold,
haa a right to redeem the aame, but the right
doea not exist In a relation by blood because of
that relationship.
8. The decease of a parson intestate being
the owner of such lands is a iwoeation of the
authority of one who had the eharge of them
from the deceaaed, yet, under some drcum-
alanssa, he may redeem lands so sold which
iMra midBT Ua eharge, notwithstaadiiiir the
deceaaed of the owner iHteatata. But whars ths
owner waa of full aga, and had actual notfee.
as in this caae, from the eoonty treaauter of Uc
sale of the land for taxes, and of tbe 'name [■&
of the purchaser, and of the time within which
he had power to redeem, and diuivows any
agency, and declares he will incur all risk,
the interference of another person to redeem,
not asserting any authority from the owner to
do so, would not affect the title of the pnr-
chaaer of land so sold.
7 and B. It t> true that the treasurer, under
the acts referred to, is a ministerial and not a
judicial officer, bnt the said acta did not bind
him to receive the redemption money for the
land so sold under the tacts severally above set
forth. The decision of the county treasurer
cannot affect the l^al righto, either of tbe
owner or purchaser, and he has no authority
to determine in whom the title or ownenhip
of such land so sold and offered to be redeemed
is vested. But before he receives the redemp-
tion money, it Is his duty to satisfy himself
that the person tendering it is either owner, or
agent, or attorney for tM owner.
9. If lands are Bo sold and a county treasurer
refuae Co receive tbe redemption money from
a person duly authorized to tender it, it is not
neceasary to make an actual ti..ider of it.
10 and 11, In substance these instructions
have already been given to the jury, but I re
peat them in the language of tbe pIsintilT'H
counsel.
1!. The court instruct you on this point a.
requested by the plaintifTs counsel. Its appli-
cation, however, to the case before you miisl
be tested by the facts connected with it an.l
f[iyen in evidence. The oounty tax, for whic!i
in part tbe land in question waa sold, was a^t'
sessed prior to the 2Qth of March, 182G, the
date of the deed of partition to which Bober:
Quay is a party. But it appears, from tlie cer-
tillcate of the supervisor of roads, that tbe as-
sessment of the niad tax on the land in dispute
waa made the 22d of April, 1826, and filed in
the proper office the 3d of May following, aftar
sembly for the sale of unseated lands for taxes,
unseated land may be sold for any part of the
t&xes due. This land being, therefore, sold for
the arrearage of tax as well as for the aaaeaa-
ment made before the execution of the deed of
partition, Robert Quay could have no legal
right derived from his having been once part
owner of it, to tender all the taxes due for Um
court to instruct the jury as follows:
1. That it, from the teatimony disclosed, tbsf
believe that Oliver S. Woleott was not a cilisen
of the Stat« of Connecticut on the 22d Septem-
ber, 1B30, but had lost his domicile, then th«
plaintiff cannot recover.
2. That from tbe testimony disclosed, tha
taxes {or which the land was sold were »•-
■essed, and that the deed from the treaauipi tD
the deCeodant, on the face of it, vesta in hun «
complete title to the land in controveray,
3. That under the fourth section of the Aet
of Uie 13th March, 1816, when lands hava himw
sold for taxes, none bnt the owner or hia ajaait
duly authorised, eui redeem tbe land; and any
Potera lo.
aot sITect the titl* of the purehuer tt trcMur-
*, That if the Jon beliere tlw teatlmon; of
JoMph F. Qiuy, of Robert Quaj, Ben., ftnd
Robert Quaf, Jun., th(7 wen neither of them
the tgeat of Jacob Fox, under whom the
pUintilT cUims, when Robert Quay, Jun.
callfd upon William Harris, the treasurer, ii
Haj, 1828, to attempt to redeem the tract of
laud In dlipute; therefore plaiotilf cannot le-
ralation to the declarations of Jac^:A> Fox,
vben he saw him in Philadelphia, in March,
IS28, and in Wiltiamsport, Octriwr, 1B2S,
neither of aaid Quayn were the agent of
Jacob Fox, nor can the plaintiff eet up their
Mts now to defeat the defendant's title.
0. That if the jury believe that thp Quayt
made the offer to redeem, through Robert Quay,
Jan., for tbeir own beneflt, all the acta of Rob-
irt Qnaj, Juo., in relation to the redrmption,
are void as it regards the present defendant,
ud do not destroy bi« treaiurer'i title.
T. That if the jury believe that Robert Qnaj
■ade the olTer to redeem under a mistaken
tnpposition that he was the owner, n* had an
iatereit therein, and when he diecovered the
niitake disclaimed any further act, aueh offer
lo redeem cannot affect the title of the defend-
ut as purchaser at treasurer's sale,
T*} *The court gave the following answer
to the defendant's poiut«:
Thit if it should appear from the testimony
tkat Olirer 8. Woleott, leasee of the plaintiff,
was a eitizen and domiciled In the Btate of
Pesnejlvania on the 2fith September, 1630,
Tbn this suit was brought, this eourt has no
jarisdietion," and the plaintiff cannot recover.
The jnry found a verdict for the defendant,
sod jodgment having been entered on the si
the^aintiff prosecuted this writ of error.
The case was argued at January Term, 1
b* Hr. Tilghman and Mr. Anthony for the
plaintiff, and by Mi. Jones for the defendant,
ud held under advisement to the present term.
lb. TOglinuui and Mr. Anthony, fw tha
plaintiff, contended:
1. That within two years after the sale of
naeated lands in Pennsylvania for taxes, any-
Mc haa a right to redeem the same for tbs
nmer, by the payment of the tax, coat and per-
witage.
e. That Robert Quay, Esq., having been tbe
rit of Joseph Fearon, the Intestate, during
lite, anf being a tenant in common, in fee,
together with others, of this tract. No. oeiS, on
tbe 1st day of February, 1825, when tbe eoun-
^ tax was aaseaaed, for which It was sold on
lbs l£th day of Juno, 1886, had • right to re-
deem the said tract, although it was at tbe
sane time sold for a road tax assessed subas-
S«Bt to tbe partition made ob the 26th 'March,
S. That the court below erred In tbe an-
*wtn given to the second, third, fourth, fifth,
sixth, ssTsnth, eighth, and twelfth points snb-
■aitted.
Tbe eovBsel for the jrialnUff In error stated
Uat the validly of tbs treasurer'a sale would
Mt BOW b« eoatestad, ud tbat tbe only ques-
tion which would be raised was, whether there
was a 1^1 redemption irf the tract, agreeahly
to the provisions of the several acts relating
tbe sale of unseated lands for taxes.
It was admitted, on the argument in the oonrt
below, and laid down as law by tbe judge, that
any person, owner or not, may pa^ the taxes due
on unseated lands; and It is evident that the
main scope and objects of tbe Act of March,
1816, were to adopt 'such provisions aa [*8
would compel tbe regular payment of the taxes ;
hence, it any person paid them It prevented a
sale. But it will be urged on the part of tbe
defendant in error, that after tbe sale the situ-
ation of things Is changed, and that tbe pur-
chaser acquires a right which can only be de-
feated by the owner or some one authorized by
him. To this it may be answered that, by tbe
fourth section ot the Act of 1816, twenty-flvs
per cent, is allowed to tbe purchaser aa a sufll-
eient compensation for the use of his money, if
refunded within two years; and it is of no im-
portance to the county who redeems; nor has
the purchaser a right to complain, if he re>
ceives his mon^ and twenty-five per cent, ad-
ditional.
It was, however, contended below, and so
held by the judge, that the Act of Assembly ex-
pressly confines the power of redemption to the
owner, and that he alone, his amnt or attor-
ns, possesses the right. The fourth section
says, if the owner or owners of land sold aa
aforesaid ahall make, or cause to be made, an
offer, etc, to tbe treasurer within two yean
after sale, or in ease the owner or owners of
lands so sold shall have paid the taxes due on
them, then, and in either of these cases, said
owner or owners shall be entitled to recover the
same by due course of law."
There is no distinction between tbe owner's
er the land, unless he shows that the owner or
owners have tendered tVe redemption money,
or have paid the taxes, as the case may be; yet
the court below instructed the jury that any
person bad a right to pay the taxes, notwith-
standing the positive restriction in Uie act, to
the owner; and universal usage, ever since tbe
law was enacted, has been for a friend, a
neighbor, a strai^r, aa well aa the owner, to
An objection is made to a redemption by a
stranger, because It may be against the will ol
the owner, as be is entitled to the surplus
money arising from the sale after payment of
taxes and costs. The same reason would oper-
ate if a stranger should volunteer to pay the
taxes, because he would as eirectually prevent
all the imaginary beneflts to result from a
treasurer's sale by paying tbe taxes as if he
redeemed the land after sale. He who *re- [*•
deans acquires no more right or title to ths
land than he who pays the taxes; he performs
a mere aet of friendship or generosity, which
accrues to the benefit of tbe owner, and nnleas
he eiprc^tly disavows the redemption, it ought
to be cuniidered valid.
In Wilt V. Franklin, 3 Bin. 602, it was held
"that, wliere a deed is for the beneflt of tbe
grantee, it is reasonable that his assent should
be presumed."
"The assent of the party that takes la im-
pliad in all sonvsyaness. by intendment of law.
SnPUBiiK Conn or isi Uhrbi Biars.
till ttiB contrary appears; and la aa atrong m
And again, page 620, "V/iy t)iould there be *.
previous consent of the ceatiiis qne trust, if
they con^tent afterwkrdsT On legal prineiplr-
the acceptance will refer back to the axecutl
of the deed, and form one transaction, done at
the same time."
In Brown v. Dveinger, 1 lUwle, 40S, it \
held that "a tender of money in behalf of
infant, made b; bia uncle, the father being
dead, but the mother living, was good ; althaugh
the uncle had not then been appointed guard-
Ub."
In that case the tender was made to defeat
■n estate held b; the party to whom the tender
was made; and although, at the time of the
tender, the uncle merely acted in the capacity
of a friend to the minor (qunsi, a aCrangir>yat
the court say, page 415, "We think an Infant"
ought not to lose his inheritance merely be-
cause he has no guardian; his uncle, or neit
friend, may act for bim; be did so here; the
tender by him was well made."
The case of McBride v. Hoey, 2 Watts, 438,
however, is said to have decided the very ques-
tion noiT before the court, and must he taken
aa authority. To this it may be answered that,
in 1 Penn. Rep. G4, the same cause was '
tore the Supreme Court of Pennsylvania,
it was then decided that the holder of a deed,
under a United States sale for the payment of
direct tax, had such a right aa would authorize
him to redeem the same lands from a person
who had purchased them at the treasurer's sale
tor taxes made in pursuance of the act of at-
■.nbi,.
The question appears to have been fully ar-
gued from the two reports of the caae, and ;et
the court came to dilferent conclusions. The
10*] 'last decision, therefoic, cannot be con'
■idered as hinding authority on this court.
"Until there shall ne a fixed and received con-
struction of the State laws in their own courts,
thej are not to be regarded as the rule of de-
cision in the federal courts." 11 Wbeaton
Sfil; 1 Peters. 441; S Cranch, etc.
Although McBridJe v. Hoey, from what has
been slateit, cannot be considered as authority;
let us examine the reaaoning of the learned
judge who delivered the opinion of the court.
In 2 Rawle. He says, "no one but the owner
at the time of the sale, hia heirs, assigns, or
other legal representatives, have the right
to receive the surplus money due on tlie
land ;" and consequently no other has the
)N>wer and capacity to redeem. That if a
Btranger could redeem, the purchaser's title
would be set aside; and the owner afterwards
refusing to take back the title, might compel
him to pay the amount of his surplus bond.
To tbis a conclusive answer may be given here,
that in the present case the reasoning does not
apply; there was no surplus bond, as the land
■old for five dollars and fifty-two cents only,
being the amount of one year's taxes and costs.
"Cessante ratione cessat ipsa lex."
The object of the law was the collection of
taxes — the mode of sale and redemption was
accessory and incidental to that object. The
land, by nonpayment of taxes, was liable to be
soldi and although the act requires the owner
•18
to pay the taxea befor* aale, and to redeem the
land after aale, yet it is next to iupooaibla for
the coun^ treaiurer to know who is the real
owner. The first section of the Act of ISIt
directs t^e treasurer "to advertise the number
of acres in each tract, and the names of the
warrantee* or ownen thereof;" yet ao littU
does the treasurer know abont the owners, that
the millions of acres advertised every year an
universally published by their warrantee names,
and not the owners. The records of the office
give no satisfactory information a« to tb« own-
er; by alienation, death, ete., he may m
changed every year.
When the land is aold, the purchaser holds It
for two years subject to redemption, and n-
eeivea aa a compensation twenty-five per cent,
on the amount paid by him to the treasurer, if
redeemed; but il not redeemed, hit title is good.
The owner 'would have no right to cam- ['II
plainft)|ecause be is placed in the same situa-
tion bv the redemption, that he was in before
the sale. The law never contemplated a spec-
ulation by the owner on a forced aale of bit
land; nor would it aid him to take advantaga
of hia own lachea, if any person should volun-
teer to redeem tlie land for him.
But suppose the owner was dissatisfied with
the redemption ; he might disavow it before
the purchaser receives back his money and per-
centage; and instead of the purchaser's title
being "set aside," it would be confirmed.
It is urged by the counsel in McBride V.
Hoey, and reiterated by the judge, that, "^n
the Act of 1816, the right of redemption is
p-iven to the owners, and they alone are autbor-
izpd to do it or eause it do be done; that they
can in no other ease maintain ejectment, except
when they shall have paid the taxes due on it
previously to the treasurer's sale." Aa has
been observed, there is no substantial distinc-
tion in the phraseology of the two parte of
the section; the payment of taxes must have
been by the owner before sale if he would re-
cover the land sold; aa well as the redemption
must have been by the owner after the sale. If
there bi> a distinction it is in favor of redemp-
tion ; for if the owner of land aold for taxea
shall make, or cause to be made, a tender, etc.,
within two year* after sale, it is sufficient; b^t
if the owner would recover because be had paid
the taxes due previously to the aale, he must
show that he paid them himaelf, not that b«
caused it to be done.
le judge, however, admits that a stranger
may redeem without the knowledge or author-
ity of the owner; and that if he afterwards,
within two years, approve of and adopt it, it
would be good. His admission is altogether
adverse to the answer of the district judge to
the seventh and eighth points of plaintilT'a
counsel, "that, before the treasurer receives Lh*
redemption money, it is hi* duty to satisfy him
self that the person tendering it is either owner
or agent, or attorney for tlie owner." If th*
owner's approbation be sufficient, after the r«-
demption, at any time within the two year*,
then the treasurer has no right to inquire by
what authority anyone otTers to redeem ; a* tbe
owner may, the next day, ratify the redemption
by a perteot stranger.
"~he error of the conclusion to which ('IS
learned judge of the Supreme Co«rt of
Fetera a«.
Dubois v. HKParsil.
PmnijlTiinlai mrrfred, u ii conceived, conaliU
Ib this, tfamt the ■&!« vested the purcbftKr of a
kgal MtAte in the Uiid, Instead of an eneum-
bnuioa in the nature of ■ mortgage; lir;nce, he
In form, a mortgage it certalnlj » tarwrj-
tnce; but It is unquestionkbljr treated at inw
Ib I>nn*;lv*nia in the waj It is treated in
ifDi^ elaewhera, as a bare encumbrance and
the acceuaiy of a debt. Aa between ttie par-
ties it U k conveyance so far as Is noni'^'iarv to
enforce it as a aecuritj'. At rrgards third per-
sons, the mortgAgor is the owner, even of ths
1ml estate. Presbyterian Congregation t.
Wallace, 3 Rawie, 129. An ejectment mav be
supported on a mortgage. U S. & R. 240. It
ll a lien and something more. 1 Petan, 441.
Although the words prant, bargain, and sell,
are in a mortj^ge, and all the forms of an ab-
solate convejance in tee are used, with a pro-
TiKi that payment on a c^ctain diy ahull alone
render it null and void; yet, as Judge Huston
Hid In Presbyterian Congregation v. Wallace:
"To lawyer, no man, no woman, can be rais-
lafcoi in ita import. It Is what the law and
the universal understanding of all people make
it," tIx, a security for the payment of money.
Tbe worda of the mortgage require th« debtor
to pay, or cause to be paid, the money for
which tha land is mDrt|;agi;d, on or before a
certain day, to redeem it from tbe mortgage i
yet, if anybody — mortgageor, friend, or Strang-
er^pay Uie mortgage money on or before, or
after the day, it is all sufTicivnt to ruileem the
lutd. A trpasurer'i deed conveys the Iraet
WId to Uie purchaser. The law gives tlie own-
er two years to pay, or cause to be puid, the
icdonption money. A atran^r, within the
limitM period, pays tbe purchase money and
ptRentage, the owner not knowing anything
•boat it. Will not his subsequent assent, pven
after tbe two years have elapsed, relate to the
tiaw of redemption? and as in the case of a
■ertgage^ b« considered for his benefit, and his
anrohatioii presumed? Witt t. Franklin, 3
ffin. 502.
If the court should, however, be of opinion
II*] that some interest *ln tbe land is neces-
sary to authorise a peraon to redeem, it will
then be proper to inquire whether the redcmp-
tioa by Robert Quay be good, under the circum-
stanoea of this eaae.
Tbe counsel for the plaintiff in error then
briefly recapitulated the facta, showing that,
originally, this tract of land, with many others,
balonged to a certain Joaeph Fearon, of Phila-
ddpUa. wbo died intestate In April, 1810)
ttat tbcM lands descended t« his brother's ehil-
dm, of whom Sarah, wife of Robert Quay, was
<wei tliat some of the heirs lived in England.
Qmy lived In tbe vicinity of this land; it was
ndentood that be should look after it, and hia
MB Joseph had letters of attorney frnm the
Mn In England, to prevent waste and de-
■truetloa of the timber; that, during tlie life-
tiM« of Joseph Fearon, Quay was allowed the ,
ma of the property in hia neighborhood, and
ealUvntcd it ^ter hia death. Jamea Fearon, I
administrator of Joseph Ftaron, had paid the
On tha Ist of Frbruary, I82S, the assessor of
tbe proper townaliip r(;lurned to the office of
tbe county comnii'tsionerB, that he had aateMed
a county tax of 96 cents on this tract (No.
G61G) of 2B4 acres; and on the 20th of April,
1820, the supervisors of roailit and iSKssor cer-
tified that tliey had fairly aasi-Ased a road tax
on said tract of «1.20, wliicli w:-i filed in tbe
county commissioner's olTice the 3d of May,
1S2S. On the 12th of June, 1820, this tract
was sold by tbe county tnasurer for one year's
taxes of $1.90, and purchased by A. D. Ue^um,
for the tsTcs and costs of sale, $S.12. The
treasurer's deed was ragularly made and de-
livered to bim.
In tbe months of March and April, 182S, a
deed of partition among the heirs was executed,
by which the tract in controversy was allotted
to tbe heirs of Abel Fearon, to which Robert
Quay and wife belonged; released all their
estate, interest, etc., in said tract of land, and
warranted the same against tbem and their
heirs. ThU ileed was recorded on 2GLh Hay,
182S, and information could not have reaciwd
England till June or July.
On the 13th of November, 1827, (aeventeen
months after the sale for taxes), a partition
was made by the heirs of Abel Fearon, and the
tract in controversy was allotted to Jacob Fox
and wife. In right of his wife, wbo did not
know that it had been sold for *taxes. ['14
He had only been in the United States about
two months, and was not acquainted with the
land titles of Pennsylvania.
Previous to tbe expiration of the two yean
nllowe{l for redemption, Mr. Fox was informed
of the sale, but be neglected to redeem tlie
tract.
In May, 1828, however, before the two yeara
had expired, Robert Quay, one of the partie* to
the deed of partition, sent his son to the county
treasurer, with a written authority to redeem
this tract. He went to the treasurer, told him
lie had come to redeem it, and showed his au-
thority. The treasurer refused to receive the
redemption money. He then went to the pur-
chaser and offered him the money, and he re-
fused to take it. Neither Mr. Fox nor his wife
knew of Quay's olTer to redeem till the two
yeara had expired.
The counsel for the plaintiff in error also eon-
tended that in every partition there la a war-
ranty that tbe land is free from encumbrance,
and that the county tax assessed previous to
tbe partition, as well aa the road tax aaseased
before the deed was delivered to the grantees,
were an encumbrance or lien on the land con-
veyed. "If there be three or four coparcenees.
etc., which make partition between them, if the
part of the one parcener be defeated by lawful
entry, ahe may enter and occupy tbe other land
mpel them
other
hanjie implies in it -ind has annexed to
it a ajKcial warranty in law. Bac. Abr.
vol. 7, 231. Taxei on unseated lands have
never been considered a charge on tbe
praon of the owner. The mode of recovery
is by a sale of tbe la4 Burd v. Semple, 0
S. k R. 100, 114.
ait
SOFBUtB COUBT OF THE UlflTB) SlATKS.
TImj also urged, that at the time the taiu
wen B^BcsMtt uid due, Quay was a tenant In
common, in rif;ht of his wife, of the lands
lubaequently sold; and that if, before the ule
their title wsi devested by llif partition, yet, as
the taiee were a lien on the land, it was Quay's
du^ to remove tlie enrnmbrance and prevent
a forfeiture; otherwise Fox and wife might
compel a new partition. The wife of Fox be-
ing a feme covert, could do no act herself to pre-
vent a forfeiture; and as the husband was
reaping no benefit from the lend, if her rela-
IS*] tions would not interfere *on her beli&If,
the husband could in all cases li»ve the wife's
lands sold for taxes, without her consent, and
her inheritance be destroyed without remedy, by
hla neglect or refusal to redeem them. The
act of Assembly, which provides that the con-
veyance of lands hy a feme covert shall be vol-
ntitai^, separate and apart from, and without
any coercion or compulsion of her husband,
would be a dead letter as to unseated lands; as
he could always avoid this provision, intended
for the security of married women, by sulTering
a lale, relieving h'mself from the payment of
taxes, pocketing tht money, and refusing to re-
deem. Justice, therefore, required that Quay,
who was a cousin of Mrs. Fox, by marria;<e,
should rcilecm the land for her. When the Su-
preme Court of Pennsylvania, in the case of
SilcBride *. Hoey, determined that none but the
owner could redeem, they did not define who
■hould be considered as the owner.
The mortgagor and mortgagee would both
be considered owners, as the one has a legal
and the other an equitable interest in the land.
A son for a father; an agent for his princip:kl;
a vendor and venilec, where part of the pur-
chase monoy is paid, a reversioner or remain-
derman, where the tennnl for life refused; a
stranger. If recognized by the owner within
the two years; a previons owner, wlio sold with
a warranty, when taxes were due and unpaid,
might redeem, though not the owner at the
time of sale or redemption.
The conclusion to which the learned Judge
arrive«, in McTtride v. Hoey, is, that an interest
of some kind in the property is necessary; and
if the court believed that Quay had any interest
whatever at the time of asspsament, or would be
iniured by the confirmation of the sale; it was
hia duty to redeem.
In conclusion, they remarked that the court
would construe the law liberally in favor of
the landholder, as the purchaser was ahun
dantly compensated for the use of his money ;
and every principle of justice would seem to
■anction the consLruction, that if the redrmp-
tion money was paid for the owner before the
expiration of the two years, the title of the
purchaser was thereby devested, and the re-
quirements of the law fulfilled.
IB*] 'Mr. Jones, for the defendant in error.
The title of Hepburn was complete in the
year 182S, and the otTer, in q legal form, to re-
deem, was made two years after that period.
The object of the different statutes in the
State of Pennsylvania on the subject of taxes
on unseated or unimproved lands, and of the
decisions of the courts under these statutes,
has been to enforce and secure the payment of
theae taxea. Having, in moat cases, no owner
Df lueh lands Tuideut Id ttw eountlet in which
such lands are situated, the proceedings (Or
their collection are necessarily against th*
lands; and the nonpayment of the taxes, witli-
in certain fixed periods, is attended with beavy
penalties. If redeemed before two years after
the sale for taxes, a large additional si
be paid; if not redeemed, the title
complete In the purchaser at the tax sale.
The decisions of the courts of Pennsylvania
on this subject will be found in 13 Serg. ft
Rawl. 360, 3T3, and ZOS; 1 Penn. Rep. 409;
7 Serg. t Rawl. 392; 10 Serg. t Rawl. 2B4;
2 Penn. Rep. 602.
The whole of the points made in tlie ca»e
may be reduced to two: all of tbem except that
presented in the 12th point, turn upon the
question, whether a stranger can redeem land
sold for taxes; and whether Robert Quaj- stood
in any relations to the owner of the land, which
would authorize him to redeem It for the benefit
of the owner.
It was dearly the intention of the Legisla-
ture to make tax sales conclusive as to title in
the purchasers at such sales. No considera-
tions of hardship can be taken into estimate ;
and no such consideration can have any infln-
enoe in a case of this description. The system
has been formed by express provision of law.
If rules and regulations must be conformed to.
every means of giving notice is directed hy law.
Among tliese regulations is that under which
the claim of the plaintiff is resisted— it is ex-
pressly provided that no one but the actual
owner of the land can redeem the land after it
has been sold for taxes. If Robert Quay was
the owner or the legal representative of the
owner, he might redeem; but he was neither,
and his ofler to redeem was made without the
knowledge of Fox and wife, to whom the land
then •belonged. Fox disavowed the [• I J
agency of Robert Quay, and charged him with
improperly interfering in the redemption; aay
ing he would attend to it himself, out he did
It is denied that by the operation of the par
tition, all the legal representatives of Joseph
Fearon had an interest in the land held by Fox
and wife, in consequence of the cITect of a lost
of the properly allotted to Tox and wife, by
reason of the lien of the taxes, for which tbe
same was sold by the county treasurer. There
is no clause of warranty in the partition deed.
But, admitting there was a tenancy in com-
mon in the whole lands which descended from
Joseph Fearon, it Is denied that a tax nsaessnl
and unpaid before partition, and the etTect M
which would be to take from any of the co-
Icnanta the property assigned to him on a par-
tition, would give any right over, l^;ainst a eo
tenant. All the landa had been subjected to
(flxatinn before the division, and, therefore, no
inequality of title existed to this property. A
tax is not an encumbrance which is saved by a
warrantv, or the other usual covenants in a
deed, 'fhere is no implied warranty in a deed
of partition, except among coparceners. 4
Cruise, Dig. Art. 10, 17; Id. 434.
Mr. Jnstic* Baldwin delivered the opinion
of the court:
The land in controversy was granted to Jo-
■epb Fearon by the Commonwealth of Penn-
sylvania, bj patent bearinf date the ISth April,
rctera to.
Duuuib V. Uefbcut,
No question arcne in the court below ■■ to
the ongiua] titl« of the plaintiff, or the regu-
larity o( the *ale for tuea; the cue turned
upon the redemption of ths land, pursuant to
Ibe fourth section of the law of Peansylvania,
paated IGth Uarch, 1S15, providing for the sate
of lands for taxes. This section is as follows:
"If the owner or owners of land sold m
•foresaid, shall make or cause to be made,
within two years after such sale, an offer or
legal tender of the amount of the taxes for
18*] which the said 'lands were sold, and the
ROits, together with the additional sum of
twenty-five per cent, on the same, to the coun-
ty treasurer, who is hereby authorized and re-
quired to receive and receipt for the same, and
to pay it over to the said purchaser on demand;
and if it shall be refused by the said treasurer,
or in case the owner or ow'neri of lands so sold
shall have paid the taxes due on them previous-
ly to the sale, then, and in either of these cases,
aid owner or owners shall be entitled to re-
cover the same by a due course of law, but in
no other case and on no other plea shall an ac-
tion be sustained."
It appears by the record that before the 1st
February, 1B2S, this land was ossEsscd for
county tax, ninety cents, and on the 22d April,
1825, with road tax, one dollar and twenty
cents; it was sold in June, ISZQ, for Ave dollars
•Bd dfty-two cents, the amount of taxes and
■wts, and purchased by the det'endaat; that in
llay, 1628, Robert Quay gave his sou written
dlrectioos to pay the county treasurer the taxes
and costs for which the land was sold, together
with the addition of tweutv-flve per cent.;
whereupon the bod offered to pay the same to
the treasurer, who refused to accept it, on the
pound that hia father was not the owner and
was not authorized to redeem the land; on a
•inilar offer made to the defendant, he also re-
fused for the aams reason. No formal tender
was made, or any specific sum offered; but the
ton had a suflicient sum with him to pay all
that was by law necessary to pay, and offered
l« pay it.
At thia time the tltl* to the land was Id this
situation:
JoMph Faaron, the patentee, died in 1810,
Intestate and without Issue, seized of the land
in controversy, together with a number of
other tracts of land in the same part of the
country; he had two brothers, Abe^ and Will-
lam, who died in his lifetime, leaving issue, to
whom the estate of their unola descended In
Joseph, Sarah, and Elizabeth. Sarah married
Christopher Scarrow, and resided in England;
Elixabeth married Jacob Fox in England in
1812, where they resided till 182T, when they
removed to Philadelphia, where Robert and
Joseph resided, and where Fox and wife oon-
Unued to reside.
It*] 'The children of William Fearon were
John. William, Nancy, married to Samuel
Brown living la Centra County, James, resld-
ing in Philadelphia, and Sarah, married to
Robert Quay, residing in Lycoming County, In
which the land In quextlon ia situated.
Jamen Fearon was the admiiiiatratitr of hia
uncle Joseph, and paid some taxes on the un-
seated lands of which he died seized. U was
understood that those heirs who, from their
situation, could moat couvenienLly do it, should
look after the unseated lands in Ibcir neighbor-
hood; but no definite arrangement seems to
have been made for the payment of the taxes
due on the lands.
The landH remained undivided, or so far as
appears, without any attempt at partition by
the heira till the 2l]th March, 1825; when Rob-
ert Quay and wife, Saoiui^l Brown and wife,
James and William Fearon (who survived their
brother John), the children of William Fearon
executed a deed of paitition to Joseph Fearon,
Elizabeth Fearon, Christopher Scarrow and
Scrah his wife, the children of Abel, the con-
sideration of which is thus expn^ssed: "For
and in consideration of a quantity of land esti-
mated in value equal to that hereinafter de-
scribed, to be conveyed by a like release exe-
cuted by the heirs and kgal representatives of
Abe] Fearon, deceased, and for the sum of one
dollar to them in hand paid," etc., "have re-
mised, released, and forever quilclaimeil, and
by these presents do remise, release, and for-
ever quitclaim unto Jodepli Fearon," etc., "to
have and to hold the said tracts of land, lots
and premises above deKi^ribed, unto the said
Joseph," etc., "tlieir heirs and aasigns forever,"'
with covenant of special warranty. Thia deed
included the land in question and waa rccurded
in Centre County, 26th May, 18^5. Holiert
Fearon hnd previously died.
No special allotment was made by this deed
to the children of Abel Fearon in severalty,
nor do they appear to have ever conveyed tu
the children of Willinm, or to have done uny
act accepting the jiariilion mnde by the deed of
March, 1825, either st-paralely or jointly, as the
representativea of their branch of the family,
until Fox and wife removed from England to
Philadelphia in 1827. On the 13th of Novem-
ber, 1S27, a paper was executed purporting to
be an indenture of psitition made between
Joseph Fearon, Jacob Fox and wife, and Chris-
topher 'Scarrow and wife, reciting the f*20
deed of March, 1825, and dividing amoiigtliem-
selves in severalty the lands and lots conveyed
to them by that deed; the tract in question was
allotted to Fox and wife. This paper was
signed by Joseph Fearon, Jacob Fox and Elis-
abeth, hia wife, who acknowledgid it the same
day in due form, before a justice of the peace
of the County of Philadelphia. It also pur-
ported to be executed by Scarrow and wife, by
their attorney Nathaniel Nunnelly, but was not
acknowledged by him till the 4th of October,
1629; it waa recorded in Lycoming County,
2Sth October, 1828. That this deed was not, in
fact, executed by Nunnolly in 1827, appears by
liis acknowledgment; wliii'h states to have been
done in virtue of a power of atlorney executed
by Srarmw and wife on the 5th June. 1R28.
That power ap])PBrs to have been executed on
the ■2.5th June, 1828, constituting Nunnelly and
Jacob Fox, the attorneys of Scarrow and wife,
with power to Nunnelly alone, giving full
authority over all their property held as one of
SuFRKHK CouBT OF THE UiTiTD Statu.
tbe beira of Joseph Fearon, the unde. It took
no notice of tbe deed of partition from the
heirs of Witliam Fearon to the heirs of Abel,
but throughout was predicated on the fact of
tbe estate of Joseph Fearon remaining undi-
vided in tbe hands of the children of his two
brothers as tenants in common. No construc-
tion can be given to it, by which to make it
operate as an acceptance of the partition made
by tbe deed of 1B2S, or any release of the right
91 Mrs. Scari'ow to claim her undivided share
of the whole estate of her uncle. There was,
iwiides, a fatal objection to ihe power of attor-
ney, as there was no separate cNamination of
Mrs. Scarrow, or any acknowledgment by herj
the proof of its execution was by the oath of a
subscribing witness only. It was afterwards
duly acknowledged on her separate examina-
tion, on the gth of September, 1B32.
On tbe same day, Scarrow and wife, by their
deed, reciting tbe deeds of partition of 1825.
made hy Ihe beira of William Fearon, and of
13th November, 1827, by Joseph Fearon, and
Fox and wife, Nmineily. their attorney, in Oc-
tol}er, 1S28, conllvmed them all according to
their several allotments. This deed was regu-
larly acknowledged in England on a separate
examination, and recorded the 10th June, 1833.
ai»] 'On tbe I6th April, 1830, Fox and
wife conveyed the tract in question to Valen-
line, under whom the plaintitT cfajraed; which
conveyance was ratified and conHrmed by the
deed of cnnflrmation, by Scarrow and wife, on
the 8th September, 1832.
Tn Marin, IE27, James Fearon, the admints.
trator of Joseph Fearon, tbe uncle, was informed
of the sale of several of the tracts of larid
belonging to the estate for taxes, of which the
tract in question was one. In February, 1928,
tbe treasurer of Lycoming County came to
Philadelphia, where he met Jacob Fox. Nun-
nelly, and Joseph Fearon; he gave them a
statement of tbe tracts which had been sold,
and advised them to redeem them or they might
be lost. Fox at first appeared dispo<<cd to re-
deem, but Niinnelly opposed it; Fox finally
said he would run the risk, as they intended to
start in a few ilays to sec the lands; but he
paid no attention to them, nnr made any offer
or attempt to redeem, till October, 1828, after
the time of redemption had expired. Some
negotiation look place between Fox and the de-
fendant afterwards, conrernini; the land in
question, which proved abortive. Fox con'
tinued to assert his claim to tbe land till he sold
it to Valentine in 1830. Quay made the hfTer
to redeem without any authority from Fox,
but from a sense of dutv to tbe heirs; who. he
said, would re-imburse him if it fell into their
hands, and on the expectation that he would.
It thus appears, that before the execution of
the deed of partition, on tbe 28th March, 192,'i,
Robert Quay was, in right of his wife, entitled
to an undivided share of the land in question,
and continued to entitled until his interest was
devested by the legal effect of that deed. Tbe
question is, when it took eUcct as a severance
of the joint inferef-t which all the heirs of
Joseph Fearon had in bis estate; it could not
be by the mere delivery of tbe deed, by the
heirs of William Fearon, to any other than the
twin of Abel Fearon, and on an acceptance bv
• II
them individually. A partition [a inchoata Un
made by all parties, or till made by one and ae-
cepled by the others; there must be a dMd of
partition, a partition in pais, or such acceptaoca
of a deed or partition as would amount to an ea-
toppel, before the estate can be held in severalty.
In this case, tbe heirs of Abel Fearon do not ap-
pear to have been connusant of tbe deed of 1825,
at the time *lt was made; and neither of [*SI
them had done any act which could amount
to an acceptance of the allotment therein made,
until its ratification by Fox and Joseph Fearon,
by their deed of 13tb November, 1827, dividinE
among the heirs of Abel Fearon the severw
tracts and lots of land conveyed to them un-
divided. But this left the partition open, till
Scarrow and wife would become parties to it;
which was not till the signature of Nunnelly,
their attorney, in October, 1828, in virtue of
the poMcr of attorney executed in June, 1828.
As, however, this power was not acknnwledgcil
by Mrs. Scarrow, so as give any authority to
affect her real estate, her interest remained un-
divided till the deed of confirmation of 8th
September, 1832, which ratified tbe partition
of 1825, by the solemn act of partition in 1827,
among tbe heirs of Ah el, 'according to the pre-
vious allotment, both of which were apetially
recited and confirmed. This being, in law.
equivalent to a deed from them to the heirs of
William Fearon, of the residue of the e-ilate of
Joseph Fearon, consummated the partition by
tbe act of all tbe parties in interest. Tbe deed
of 1825 then took elTcct, as a devestitiire of the
interest of Quay and wife in tbe land in ques-
tion, by relation to its date; but while the par-
tition was in fieri, tbe estate remained undi-
vided. This was in accordance with th« term*
of the deed of 18-2.5, the consideration of which
wns a conveyance to be executed by the heir*
of Abel Fearon, of a quantity of land to be
estimated equal to what was thus conveyed by
the heirs of William. The intention of tl<e
parties thus corresponding wltb the legal effect
of tbeir deeds, it is perfectly clear that, till tha
consummation of the partiti
1832, Quay
fc held an undivided interest in the land
in question, as owners thereof, in common with
the other heirs of Joseph Fearon; and the only
remaining question is, whether he had a right
to redeem from a sale for taxes in May. 1828.
A law authorizing the i«dcmption of lands
so sold, ought to receive a liberal and benign
construction in favor of those whose estates will
be otherwise devested, especially where tha
time allowed is short, an ample indemnity given
to tbe purchaser, and a penalty is imposed on
the owner. The purchaser suiters no loss; b*
huyi with full knowledge that his title cannot
be absolute for two years; if it is defeated by
redemption, it reverts to 'the Iswful pro- [*S3
prictors. It would, therefore, seem not to be
necessary for the purposes of justice, or to
c-ffectuate the objects of the law, that the right
to redeem should be narrowed down by a strict
construction. In this case, we are abundantly
satisfied that it comports with the worda Knd
spirit of the law, to consider any person who
has any interest in lauds sold for taxes, aa th«
owner thereof for the purposes of redemption.
Any right, which in taw or equity amounts to
an ownership in the land; any nght of entry
upon it, to Its possession, or Enjoyment, or any
r«tera Xm,
OwtNos BT Ai. V. The I^bsbe or tnsifAR.
fart of It, which ran be deemed an estate in It,
nukoi the person the owner, m> far as it is nec-
tSBar; to give him tlie right to redeem. The
decision uf this case does not make it ne^cssnry
to go farther then to determine that Quay, an a
fart owner, had a rif;ht to redeem; that he
caused an offer to redeem to be made to the
trraBurer within two jears, ai well ai to the
defendant, buth of whom refused to accept the
redemption money. This brings the case with-
ja the provision* of the law; it does not re-
quire a faymi^nt or tender; an olfer and refusal
is made eijuii-aTcnt to a receipt of the money
bj tlie treasurer, and outhori^es a recoverj of
ti* land by suit, aa if no sale had l>een made.
In inatrueting the jury that Quay had no
riglit to rcdfera. tUrre was therefore error in
the court ijelow; the judgment tiluat conse-
quently be levcraed, and a venire it novo
This cnuae came on to he heard on the tran-
script of the record from the District Court of
the United States for the Wc5torn District of
Pennsylvania, and was argued by counsel; on
consideration whereof, it is ordered and ad-
judged by this court, (hat the judgment of the
District Court in this eause be, and the same is
hereby reversed, and tlint this cause be, and the
ame ia hereby remanded to the said District
Court, with directions to tliH court tc award a
Teniae facias de novo.
14*J "OWINGS et bL
LESSEE OF TIERNAH.
PractiML
The rale of court for docket Ins and d I amis:
eanwi. passed at Jnnuury Term. INS.'i. bes n<
btcn applied to any cesi'i, wbere, liefore tlie mn
*!■ made, tbe eanee bad breti setoally placed
Ibe dnckel. liuilcr bucIi clicumstanceB. ou a
tbou lo docket, nbcD a moUon 10 dliiiuiss n3»
temporBaeoiisl; made, the cauee was sllow^d ti
■ocluleil : tbe usual liood (or Ibo clirfc-s fees bi
(tren. Time was siren lo the plolntlCt lu erro
lite the bond.
Statea for the District of Kentucky.
A motion waa made by Mr. Underwood, for
the defendant in error, to docket and dismiss
this suit, according to the amended rule of the
eoort passed at the last term, for want of its
being duly entered on the docket; the writ of
error having been sued out before the laat
January Term, and the suit not having been
docketed at that term, or at the present term.
A motion waa contemporaneously made by Mr.
Crittenden, for the plaintiff in error, to docket
the suit now, the record having been returned
to the clerk's office in October last, and the
docketing of it having been delayed on account
of the uaaal t>ond for the elerk'a feea not hav-
ing been given by the plaintiff in error.
Hr. Jiutlee Stoiy delivered the opinion of
the court to the following effect t The rule of
the court for docketing and dismiasing
llaa never l>een appli^ to any casea,
before tba motion waa
tL.ed.
the docket. In tha
present case, the motion to dismiss, end the
motion to docket the cause, are curilcniporane-
ous. The court are of opinion that, uniler such
<:ircum stances, the motion to docket the causa
ought to be allowed; uiKin tbe usual l>ODd for
the elerk'a fees being given. For tliis purpose
time will be given to the plaintiff in error (aa
it is asked) until the )st day of March next.
If by that time no bond is givfri, the cause will
then be dismissed according to the motion of
the defendant in error.
•SAMtJEL D. HARRIS et al.
JBSSB D. ELLIOTT.
Certain streets were laid out b; tbe town of
Charlealown. Massacbusetts, and tbe pnjceedlitES
tbe land of Jobn llarrls, and be a[teriviir'V« r.'iTlVi'd
occupl^ bj tbe streets. In 1SO0. tbe Uohcd 'siulf)>.
under tbe suthorlfy o! an Act of IM,- I,e;;l»:alitre
of MaSBBCbuselts. purcbased of Mr. Ii.tvrl» s^'veral
parcels of land now ovcuislcd as a aavy yard: auil
In ISOl. by an arrangement belweco tbe towa of
Cbarlestown and tbe iJultcd Ststca. the Btn-eis, ao
fnr aa tbey were wllbln tlie llmita of ibe narr
j-nrd. were closed up, and bare ever sfnii! been
disco Dtlmii!d, and bare been used bh a pixri at the
Mr. Ilsrrls, not aEreclDg as to tbe valiir of tbe
land taken for tbe navy yard, tbe value was nscer.
E Jiir
tnid o
appraise
of a
be psid tbe value of the land on nblcb tbt
.,.eet> bad been laid out. but wblcb had been dis-
continued. The detendsat waa the commandant of
liv THi Cuukt: Tbe term "appurtenancea" tn
to Bicnity aomethlnc iippcrlDinlnB to anotliiT thiii);
principal tbluc. I.and cauooC be spiiurlcnnnt lo
PbVlern
:rpp;':,
Tbe rlfbt of the platotllTa lo tbe frci'hold ol tbe
of the legislature of Maasacbu setts of 30tb Octo-
ber. 1781.
Tbe law Id MassacbuseltB la well aettled. that
where a mere eanemcnl Is taken for s nubile hlKli-
way, tbe aoll and freehold remain to the owner of
the land, encumbered only with the easement ; and
ttiat upon the dlsconllniiance of tbe bl);bivav, thi
Boit and freehold revert to Ihe onuer ul ibe land.
It has been repeafedlv niTert In (hl» coiiri. ihni
the whole case cannot be brought here, under (be
act of ISOZ. upon aucb a general question. Tbis act
specific questions, upon wblrb tbe Jiidce-i In tbe
Circuit Court may be apposed Id opinion.
ON a certiflcate of division tKtween the judges
of the Circuit Court of the United Slatea
for the District of Massachusetts.
Nora. — Appurtenances, what passes by deed or
Some things pass by conveyance of lands as lne|.
so" i2f,'^?:TB2,''307!''ii.';*Comin's'^'iDlB. GrSnt,' b!
1 any casea, where.
lucOTporeal beredltaments. apiiendant <'■ i>i
tenant to land, aa common of ptsrary and of pent-
an and right ot way. paa* by a conveyanee nf the
flonuiB Court op thk Unitko States.
issa
This wa» sn actinn of trespau quara nlauaum
fiTfjit, instituted in the Circuit Court of the
United States at Octotier Term, 1S33, against the
tlcfailtant. Jesse D. Elliott, the i^omniandant of
the United Slates navj yard at Charlestowa,
26*] tlaasachusettB, in 'order to determine tlie
title claimed by tlie plaintiffs as heirs of John
Harris, fonner1,v oF Cliarleatovrn, Massachusetts.
The United States, the real possessors, and as-
Bcrting an ownership of the propert]', took de-
fense in the suit; being desirous of bavins
the rights asserted by the ptaintiffs ascertained
and determined.
The cause was submitted to the court on a
statement of facts agreed upon by the counsel
for the plainfilTs and the District Attorney of
the United Stales. The; were as follows:
"In the jear 1780, a committee appointed
by the town of Charlestown, in the County of
Middlesex, in the State of .'li'.e.acliusi'tLi. pro-
jected certain strnets i& suiU tOAO, and laid
Lhem down on a map or plan, which was de-
posited and DOW remains in the ofKce of the
Secretary of State of the Commonwealth of
Massachusetts, and ou the thirtieth day of
October, 1781, the Legislature of buiil Common-
wealth pas'cd an Act confirming tlie doings of
Laid committee, and barring actions in certain
cases therein speciHed. The street now called
Water street (living the most scutheily street
on caid plan) was not in fact entirely laid out
by said town until the year 1765 or 17U0 (a
street commonly called Battery street, which ran
in the same direction, being used as a highway
until that time), and that the most northerly
street on said plan, called Henley or Meeting-
house street, Mas not in fact laid out by saiil
town until the year 1768 or 17U6.
"That John Harris, late of said Charlestown,
merchant, dei'cnsed, purchased several parcels
of land in said Charlestown, viz.: one parcel
of Andrew Newetl, by deed duly executed on
the 11th day of January, 1701, described u fol-
lows: a tract of land containing fire acres mon
or less, bounded southwesterly on lund of Josep.*!
Barreil; northwesterly on a road leading to tM
brick-lcilns; northeasterly on a hi<;hway lead-
ing from the Battery to Moulton's Point; south-
easterly on Charles River down to low water-
mark, saving and reserving a highway through
the same from the Battery to Moiillon'a Point.
Another parcel of land of Joseph Barrell, by
deed duly executed on the IQtli nf ,1une, 1792,
viz., a certain piece of land, bounded and meas-
uring as follows, vis.: front on Battery street,
S. 8. E., 'there measuring one hundred [*2T
and seventy-seven feet; upon land of Andrew
Newell, B. N. E. (our hundred and Sfty-eight
feet; upon Back lane, N. N, W. one hundred
and eighty-four feet; upon land of the heirs of
Joseph Leman, Esq., W. S. W. four hundred
Mud li/fy fiet; tliePi turning upon said Leman's
land, \V. S. W. filty-seven feet, till you rome
into Battery street. Also, a part of a wharf
and land upon Battery street, cppoaite to where
the cellar stands, on said lane, measuring upon
Battery street, N. N. W. one hundrwl onJ
fourteen feel; on Charles Eiver. S. S. E.. and
c(.n(.iuues tho same l)r;;a(ith to low water- marl:,
or however otherwise bounded, or lie the a:iine
mea-iurc more or less, together with all the
rights, privileges, and apfiirtcnaiics to said
granted land and premises, .\nother parcel of
land of John Lnrkin, by deed ilulv cvrcu^ed
eth July, 171)3, viz.: a certain parcel of land
containing about one acre udJ onj liplf, lionid-
ed on land ot John Harris, W. S. W. on said
Harris, southerly, on land of Captain Thomas
Kdes; southerly, on land of Captain Thomas
Harris and Amos Sampson. W. S. W. on li^:rli
lane, N. N. W. on John Harris, formerly Ji>-
soph Barrell, Esij.. E. N. B. to Ualtery street.
Another parcel of land of David Munroe, by
deed duly executed on the third day of April,
I thej are anneied, i
--- [leaaBc.^ Co. Li
r otLcr easeineDt. appui-
llm7f
4 Mees. & W. '245.
-Igbi ot way, a)irurtei
o land, 1
titled (0 a way. Underwood t. Garner, 1 Cusb.
SSa ; Lansing v. WIswhII, S Denlo. 216: Rlsples v.
Uaydon, 6 Mod. 3 : 2 Ld. Raym. 922; Newmarcb
• BiandllnB, 3 Swenst. OB.
But n right of war by aei^nslt; la termlDated
with the necesBltj. N. I. Llfp Ini. & T. Co. v.
MIlDor. 1 Barb. Ch. R. SD4 : fierce v. ftellack, 18
Conn. 321 : 8eelT r. Bishop, 18 Cona. 12S.
It (he owner of s mill snd dam. and certain
- T the di
Its prlvlleEra at>'
appiirten
BDCH, (he
msT conllDue the
am with the saoic hea
Blaine's Leasee *
Cbamber
. 1 Berg.
ft It. IC
'i
Pickering v. Stsp
es. E Berg
A S. 107
T. Todd. 10 Berg
Oakle; v.
Stanley,
%
Wend. 623 : Haiti
rn V.' Stii
on, 1 Falrf. 2S*.
Under a reserv
stioo In .
land! and
water prIvlleBea,
propel ct
UlD ipeclfled mac
Incry. (he
Brantor la
eofUled
to
,.ift2.
1. UnllM Ststp:
e. Vnoii
DOllult.
'i'lK;
niinit. :
pus.-, c hlni nec<"i-\rv, or i]::n'l npnpndunt tberC'
A racewav. conducting water trow a mill to bd-
othei part of the grautor's land, has beeu held to
So" l/ lpi.''"'linSr"v,"Bo"lchelder.'!l N. II. IIHI."
The term ■piiurtfoflneca Eleuini!! aoaie(hliiR ap-
perlninlng to another thlnK as iirlnrlpal. and whii-b
'hich ia of a dirTerpn
"ai°°a, 1 Va^m' 37?'
Convernoce of the fe(
r (ached to the soil, sui
(ling else. Crewa v.
lanE ot rennsylvaols <
Ids r. Vashblndcr, T V
Johns. 210: KKlredgi
When s thing "
I to
pvlncli'i
nd. UoltiTd
I,aad
I as uratn growltii:. or nnv-
i'endleton. 1 I.eldi. 2flT;
alio, and Kb
the gran I o
S N. H. 50:(,
'friilta lud cITects ot It are eranted
aol. abalt M Koat e
cessary. sfiieodnnt and
^th
ISM HUUB R A
iraS, *is.: m plcM *t Und containing b; eatima-
tion about one-eigbth of an acra, butted and
Ixninded as followa, viz.: eaiterl; aod north-
erly by land formerly of Edward Wilson, but
lately J^mmon; wceterly by land fomnsr-
ly of Colonel John Phillipa and lately owned
by Benjamiu Wheeler, deueased, and eoutherly
by the street or highway tailed Wapping street,
ot however otherwise bounded or reputM to be
bounded. The above -deter i bed parcels of land
compriae the two parcels of land deseritwd
"The said town of ChsrleatowD, In the year
1706 and 1796, laid out the easterly part of the
southerly highway on said plan (now called
Water atrect) aver a part of the former Battery
street, and a part of the land of aaid John Har-
ris, conveyed to him as abovs described, and
the said John Harris, by the award of referees,
dated July 26, 1708, received from said town a
part of the land forming the old (Battery)
SB*) street and the aum of four 'hundred and
Gfty dollars in damage* for taking his land
ovn which ^id highway passed. The following
ia a copy of said award:
The subscribers, referees chosen to deter-
mine a diSeicnee between the town of Charles-
town on one part, and John Harris, of said
Ciarlestown, merchant, on the other part, pur-
suant to a law for amending the streets of
said town, laid waste by lire by the British
troops, have met and fully heard the parties
and viewn] the premises and considered the
disadvantage to the said John Harris's lots on
the street leading from the swing bridge to the
pUee of the old battery, in said Charlcstown
(so far as the same has not been heretofore tet-
thd), by taking a part of said lota into the
street, and also the advantage derived to said
lots by discontinuing the old street, where It
does not make a part of the present street, and
also the advantage of the new street being more
wide, commodious, and direct than tlie old
street waa--^D award that the said town of
Charlcstown do pay to the said John Harris
the sum of four hundred and fifty dollars, and
relinquish all claims to that part of the old
street which come* within aaid lots, aa thevare
left by tha said new street. The lota conaidered
extend on the northweat aide of the street,
from the northeast corner of ThomAS Edmands,
formerly Henley's, to a place marked on the
plan by tbe word 'stump,' being on the plan
a comer of a street proposed to lead to the
meeting-heuM, but not y«t opened. The town
of Charlestown are to pay the cost of the ref-
erees, and the tavern bill of the house where
they set.
"Done at (Aarlettown, the Z6th dav of July,
A.D.17IHI.
"James Winthrop, i
■^tatthew Clark, L Referee*.
"Amos Bond, )
"That in the yiar ITUU or 17D0, the said
town of Charlcstown laid out the most north-
erty street or highway marked on said plan,
called Meeting-house or Henley street, throu|;h
and over the land of said John Harris, con-
veyed to him as above recited, and on the
said John Harris received from the said town
o.' Charlestown the sum of in damages for
taking the land belonging to him, over which
aaid street last mentioned paused.
■"That in the year 1800, the govern- ['SB
ment of the United Statea, under the authority
of the statute of Massachusetts passed June 17,
ISOO, purchased of said John Harris several
parcels of land in said town of Charlestown.
which are now included within the limits of
the navy vard in said town. The value of the
land so taken was ascertained by tbe verdict of
a jury (agreeably to the provisions of said stat-
prlocipal, without tbe word
tlon that be did t
Id en tils : and
general rule that a
It Is ■ gen
proper! J be_jippurtensDt \
121, b, Accerdlni
•V°,
. _ Ihlng corpori-sl, nor
thkig Incorporeal . Co.
Smith. 0 rici.
:iatlDD, A Ubbs.
Incident to Ihe principal object ol
tlM lee or one piece at land cinno
tenant to a dlBtlnct parcel, wh
10 Ji
Jsck-
grlst ml'lT with the sppurtc
ilmmemortall; used Eoc
e rotll. did nut pass, -'
,. mlKht tie considered ss ■ Eriol ot
t tor tbe sccomodatlon at the mill. Ia
ani V. While. 7 Uass. < ; Cro. Ells. 704 - "- '
17: 3 Rslk. «0: see, alao, Tjler - "
Pick. IftS.
"anraninancea" ts occaslanal^ Interpreted ._ ..
MBM bfTued Its strict lenl ■Igniflcstlon.irfai-ro
■ocli srnrw a.a ba elsarly astabtlshed to bs accord-
on to be collecteO. as \a other cases of
either from other parts ot Ihe will from
ing the uw and occupallon of the land o
not particularly dpvlspd, hb s part ot oi
with the principal anbject of tbe dev
a devise ot a house or mei" ~ "" "
■ - ■ 1 held t
teststor. Id his lifetime, as psrt ot tbs estab-
lishment of auch house or mesiiuiiee bu devlKed.
Jackson v. White. 8 Johns. 4T.
Bo tbe coal bonse wpsrsle from the bouae has
been held to piss by a devise ol the house iijK>(
almllsr evidence. Doe v. Collins, 2 Term It. SB.
A devise of "mesausBes wltb all bonaes. liaras,
■tables, etc., that Btsnd upon or belong to the said
meanuages," under ■-' -' ' -' — '-
inltesi
g the 1]
the Isnds belong! ng t<
□r the
ids. Gnlliver v. P07DU, 2
726: S Wlls. 141.
But nnleBS It elearlj api>esra that
eld t<
end the word "appurtenances" beyond
LF<:iiui<:iii sense, lands dsusIIt occupied with
use will not past under a devise of s mcaausce
tbe appiirtEDHnces. Buck v. Norton. 1 Una. *
. G3 : Bodenham v. Prltehsrd, 1 Barn, & C.
: Hobaon v. Blackburn, 1 Uylne A K. 5TI ;
Iman v. Bdwarda. 2 Ujins A K. 7fi9 ; Berg-t
Sura
■ COUBT OF THE UNITED STATES.
ISM
ute). And on the ZOtli November, 1800, and
eth February, 1801, said HarrU ra^ved from
the United Slates the suma to ftssertained, •«
the value of said lands.
'The proceedings in ascertaining the vaJue of
•aid lands were »a follows;
"Commonwealth of Masiachusetta. To the
honorable the justices of the Court of General
Sessions of the Peace, begun and held at Con
eord, in and for the County of Middlesaei, od
Uond&y next preceding the second Tuesday of
September, A. D. 1800.
"The petition of Aaron Putnam, agent of the
United States of America, respectfully showeth,
that your petitioner having been directed by
the government of the United States to pur-
chase a ceitain tract of land in Charlestown,
for a aavy end dock yard for the United States,
■nd not being able to agree with Mr. John Har-
ris, of said Cliarlcstonn, for sundry lots of land
belonging to him, which lots are within the lim
it* poin^d out by tlie governmeat, your peti
tioncr, therefore, pruys that the honorable
court would order tlie sherilT of said county to
summon a jury to appraise and value said lota
or tracts of land, that the United States may
posecBB the same at a fair and equitable value,
agreeably to a law of the said CommoQ wealth
in that case made and provided.
"September 11, 1800.
"Aaron Putnam,
Agent of the United SUtea.
■October 22, 183U. A copy.
"Attest, A. Bigctow, Clerk.
"Middleseex, ss. 4tb October, 1800.
"We, the jury, impaneled and sworn, as be-
fore certilicd, liaving been shown several lots of
land, which belung to John Harris, of Charles-
town, in the County of Middleasex, merchant,
SO*] 'lying within the limits mentioned in
the act in this cose mode and provided, and ful-
ly heard the eaid Harris; as well oa Aaron Put-
nam, Esquire, agent for the United States, to-
gether wi(,h the testimony by tlicm respectively
Croduced touching the value of the aaid lots, we
sve set out the said lots by metes and bounds,
■nd do appraise and value the same as follows,
viz., one lot containing five acrea, two quarters
•nd thirty-five rods, bounded as follows: begin-
ning at the northerly corner of Amos Samson's
land, by the lane which leads to the brickyards,
thence running southerly, aa the fence now
stands, partly by land of the said Bamson, and
Cartly by land of Thomas Harris, to the street
itely laid out from the meeting- house to
Charles River, thence running easterly on the
same street until it comes to a cedar post
marked, witli atones about it; thence running
in the same direction to a stake and stones;
thence running northerly on a straight line to
a post in the fence, with the top hewn on all
•idea; thence running still northerly, as the
feni^ now stands, to the lane Brat mentioned;
thence running westerly by the same lane to
the place first mentioned, which same tract of
land on our oaths we do appraise and value at
thirteen thousand dollars and no more.
"Also, one other lot of land, with the ap-
purtennnces, containing one half of an acre,
bounded as follows, viz., beginning at a stake
and atones, by the atreet lately laid out from
the meeting-bouse to Charles River, thence run-
ning southerly by land of Thomaa Edes, until
it conca ta » po«t in tht ■onth«ut«rlj oornar of
said Edes's fence by Battery street, thence run-
ning northerly by the same atreet till it comn
to a stake and stonca standing where the same
street meets the street lately laid out as afore-
said; thence running southwesterly by the aame
street to the stakes and stones first mentioned;
which same tract and lot of land we do, on our
oaths, appraise and value at tJurtsen hundred
dollars and no more.
"Also, one other lot of land, containing one
acre and two quartera, more or less, l>ounded
as follows, vi£., beginning at a stake and
atones, wliere Wappiog street and Battery
atreet intersect each other; thence running
northeasterly by Battery atreet, to a stoke and
stones by land claimed by the said Edea,
*and in dispute between him and the ['it
said Harris; thence running southeasterly by
the aame land to low water-mark; thence run-
ning southwesterly by low water-mark till it
comes to Wapping street aforesaid; thenoe
ivesterly by the same street to the stake and
atones Srst mentioned; which same tract of
land we do, on our oaths, appraise and value
at one thousand five hundred dollars and no
"Also, one other tract and lot of land con-
taining three quarters of an acre, more or less,
hounded as followa, viz., beginning at a stake
and stones by Battery street, by the north-
westerly corner of the lot of land last described,
thence running southeasterly by the same lot
of land to low water-mark; thence running
northeasterly ninety-seven feet, by low water-
n^ark ; tbence running north we utterly on a
straight line to a stake and stones by Battery
street aforesaid; thence southwesterly by the
same street to the stake and stones first men-
tioned; which same tract of land we do, on
our oaths aforesaid, appraise and value at five
hundred dollars and no more.
"AIM, one other lot of land, containing one
acre and one quarter, more or leas, bounded as
Follows, vie, beginning at a stake and stoueaot
the northwesterly comer of the lot of land lost
descritied, thence running northeasterly by
said Battery street to land of John l^rkjn;
thence running southeasterly by land of said
l.arkin to low water-mark; thence aouthweat-
eriy by low water-mark to the piece and lot of
land last described; thence northwesterly by
the same lot of land to the stake and atones
Hrst mentioned, which aame lot of land we do
appraise and value, on our oaths aforesaid, at
the sum of seven hundred and eighty-seTcn
dollars and no more.
"In witness whereof, eta.
"The foregoing ia a true copy of the verdict
of the jury summoned by the sheriff of the
County of Middlesex, by virtue of a warrant
to him directed, which issue from the Court of
Sessions for the Ciounty of Middlesex, on th«
application of Aaron Putnam, agent for the
United States, to appraise the value of cer-
tain lands taken for a navy and dock yard
in Charlestown for the United States, which
lands belonged to John Harris, of said Charles-
town, "Which verdict ia annexed to ["*•
said warrant, and on file with the files of said
court of sessions for September Term, 1800.
"Attest, A. Bigelow, Cterk.
"CTerk's ofTice, Cambridge, October 87, 1830
"The street called Battery atreet in the fore-
going description ia now colled Water street.
retera 1*
nss
r AL. ». Bu-iOTT.
^t appcAn from the foregoing deBcriptton,
tbat nich part of the street as was given up to
uid Harris, by the town, by the award of the
rtlerees, on the 36th July, 1796, was included
in the transfer to the United States and paid
for by them.
"^hat on the 14th day of January, 1801, a
eommittee of the town of Chariest own, appaiot-
cd to consider tbe subject of granting or ex-
dianging the roads and streets for the aceom-
modtttion of the navy and dock yard, bar-
ing conferred with the agent of the United
States, and examined tbe land particularly
located for that purpose, made a report, which
was adopted by the town, and Is aa follows:
That in consideration of the benefit expected
from BO important an eatabliahment, such parts
of the following streets and passage ways be-
longing to the town as are included In the
liuiti of the nary and dock yard, be granted
for tbe «oIe use of the United States, and that
their termination from tbe Main street be as
(ollowB: the street laid through the land lately
belonging to Mr. John Harris, by a line across
the tame from the easterly bounds of the land
of Capt. Thomas Y,ivs; the Wapping and Bat-
ter; streets by a line across the same on the
easterly bounds of a pasaage way twenty-one
feet wide, belonging to the town, which leads
to low water-mark; the road leading to Moul-
ton'a point by a line across the same from the
northerly bounds of the land lately belonging
to Aaron Ihitnara, Esq., provided, however,
(hat if the navy and dock yard should be dis-
continued, or the land converted br the United
States to private uses, these grants shall be
raid, and atorpBaid streets and pasxage ways
•hall be opened as before for the use and ac-
commodation of the town.'
"John Harris requested an entry of his pro-
teat to tbe report on account of his right to the
adrantages of tha said streets.
"That from and after the passing of the fore-
•*'J EO'ig 'oto the two *street marked on
the saM plan, eo far as the same are contained
within the limits of said navy yard, were, and
hare been discontinued, and have etased to be
ued as public highways, and have been nied aa
a part of the navy yard.
n'bat at the time the United Statei ttxJc the
land of John Harris there were three wooden
buildings on lot Noi I, and no boUding* on
the other lots.
That said John Harris at that time owned
a small gore of land adjoining the west end of
lot Ko. 2, which was sold by his administrators
to Hommodore Bull in IBIT, and afterwards
•old by said Hull to the United States. The
tame gore of land ts now eneloaed within the
walla of the navy yard.
That the town of Charlcstonn, on the 2d
March, ISDl, sold to Aaron Putnam a part of
the road leading to the brick-yards, which said
Putnam afterwards, on the Sd of April, 1801,
sold to the United States, and it It now within
the limits of tbe navy yard.
That said John Harris died on the l»th of
OEtober, 1B04 (having devised all his real estate
to hla brothers, Thomas Harris and Jonathan
Barria, who, together with a niece, to whom
•aid John gave an annuity, were the heirs-at'
law of aaid John), never having made an
•ntrj on the land covered by aaid streets, nor
d!d the aaid Thomaa or Jonathan ever nter
"Iliat said Thomas Harris died on «1
June, 1814. intestale, and his estate descended
to his children, Ttiomaa Harria, John Harris,
and Mary Coleman.
''That said Jonathan Harris died on the
14th day of August. 1814, intestale, and bis es-
tate descended to his children, Samuel D. Har-
ris, Richard D. Harris. Charles Harris, Henry
Harris, Mary Harris, Charlotte Harris, and Au-
gusta Harris; and that tbe said Charlotte and
Augusta were infants within the age of ttven-
ty-one years, at the time of the decrase of tliP
said Jonathan, and the other children of said
Jonathan were of full age at the time of his
decease. That the heirs of said Jonathan and
Thomas Harris claim to bold aaid two parcels
of land described in the writ, as tenants in
common; and that the said Hichard for him-
self, and the other heirs of aaid Jonathan, and
the heirs of said Thomas above mentioned,
made an entry into said two 'paroels of [*X4
land on tbe 4th September, 1830, claiming title
to the soil and freehold thereof, but have been
of the navy yard, and particularly at the time
of the trespass complained of in this action by
tbe present defendant, the cominundant of the
navy yard, A similar entry was made on th«
lltb September, 1833, which was repulsed in
"An act for widening and amending the
streets, tones, and squares, in that part of the
town of Charlestown wliich was lately laid
waate by Are. Passed 30th October, 1781.
"Whereas, great desolation and destruction
was, some time since, made by tbe British
troops in Chariestown, wantonly destroying tbe
same by fire. And whereas, a eommittee was
appointed by the town aforesaid, for regulat-
ing the streets, lanes and squares in that part
of the town which was so laid waste, and the
committee hath accordingly proceeded to lay
out the same; a plan whereof hath been laid
before thia court, and ia now deposited in the
secretary's office.
"Sec. 1. Be it therefore enacted by the Sen-
ate and House of Kc present a lives in general
court assembled, and by the authority of the
same. That the said proceedings of the coniinit-
tee be, and are hereby confirmed; and all ae-
Hons that shall be brought for recovering pos-
session of any land lying within any of the
streets, lanes, squares, etc., laid out aa afore-
said, or for damages sustained or occasioned
thereby, shall be utterly and forever barred.
"Sec. 2. And be it further enncted by the
authority aforesaid, That no building whatso-
ever be so erected as to encroach upon any
street, lane, or square, by them laid out as
aforesaid; and that erery building so erected
be deemed a nuisance, and be accordingly tak-
en down or removed by the order of any two
Justicea for the County of Middlesex, or the
selectmen of Chariestown, the charge of such
removal to be paid out of the moneys which
shall be raised by the sale of the materisK of
anch building, which, by the order of snid
justices or selectmen, shall be sold for that
purpose, unless the satd charges shall be im-
mediately paid by the owner.
SUPBSMB COUBT OF TIIK UNtTBD STATES.
IBM
S5*J '"Sm. 3. And be it further enacted b;
nuthorilj aforrsaiii. That if any person or
sons whatsoever Bliall wittingly or willinjiry,
wi til out goad authority, pluck up or rrmovt
any of the stakes or boundmarka which hnvc
l>een or Bhnll be fixed or get up by said commit-
Ice to distingitii'h and ascertain the ntrpetF
aforesBid, and shall be thereof ronvictpd before
liny justice of the pe*ce for the County of Mid-
dlesex, eauh and every person so ofTending ehftll
forfeit and pay the sum of forty aliillings, for
llie ute of said town, or, on failure thereoT,
shall suffer imprisonment for the space of two
months. And wht^reas some persons may suf-
;er damage hy laying out the atreetg, etc., ac-
I'Ording to llie plan aforesaid, and others may
receive benefit and advantage thereby.
"8*0. 4. Be it fuither enacted by the author-
ity^ aforesaid, Tliat the value of all lands and
liuildinga and other materials taken from any
person by virtue of this act, sball be determined
by three persons mutually chosen for that pur-
pc'se, one of which shall be appointed, by the
selectmen, or a committee chosen for that pur-
]io8B, which person so appointed by the select-
men or committee, •hall not be an inhabitant
nf the town, and the other by the party inter-
ested in the land, which two shall choose a
third, and the judgment of the three persons,
or any two of Ihcni so chosen, shall be final in
the case, and the town held and obliged to pay
(o the person interested in the land, buildings,
or materials aforesaid, the sum at which it may
be appraised as aforesaid.
"Sec. 5. And be it further enacted by the
authority aforesaid. That in any ease where the
whole of any person's land may not be taken
away by the plan aforesaid, the appraisers
a fore men ti one], in estimating the sum said per-
son shall receive, shall consider the advantage
his remaining land receives, as well as the value
of land taken from him by the plan aforesaid,
and from a consideration of all circumstances
determine the sum of money such person shall
leceive as aforesaid.
"And whereas some estates may be advan-
taged and rendered more valuable by the exe-
cution of the plan aforesaid.
"Bee. e. He it therefore enacted by the au-
thority aforesaid, hat the selectmen, or a com-
mittee appointed by the town for that purpose,
shall have power to call upon all persona whose
m*] 'estates (in their opinion) are benefited
by the execution of the plan aforesaid, to join
in the appointment of appraisers In the man-
ner before provided in tnin act for eatimatmg
damages as aforesaid; which appraisers shall
have full power and anthority to determine tho
sum thn-t the ownrr of nny estate so benefited
ought to pny; which estate shall be subjected
to make good the sum so awarded by the ap-
praisera aforesaid.
"And whereas the house lots of Richard
Devans, Esq., and Messieurs Ebenezer Breed
and Jonathan Penny are taken away bj the
plan aforesaid.
"Sec. 7. Be it further enacted by the author-
tty aforesaid. That the selectmen of the tow-n
aforesaid, or a committee appointed by the
town for that purpose, sha.lt be held and
obliged to procure pood and sufiicient house
'ots for said Richard Devana, Ebenezer Breed,
'* Jonathan Fenny, which, in tbe oplnina ot
appraisers to be chosen as is before provided hj
thi* act, shall 1m; eiiiial in value and conven-
Lt-nce to those token away as aforesaid. And
when 9ai[l house lots are procured for the per-
sons aforeKBid, then their lota and buildings
shall be under the Kame rules and regulations
as to moving the buildings thereon, as ia before
provided by this act for removing and prevent-
ing enrumbrances and nuisunces.
"And whereas some persons, bl order to de-
feat the good purposes designed by this act,
may refuse or neglect to join in the appoint-
ment of appraisers, as is before herein provided.
"Sec. a. Be it further ena<.-ied by the author-
ity aforesaid. That if any person or persona
shall, after being duly notified thereof bj the
selectmen of the town, or a cornniittce ap-
])ointed for that purpose, refuse or neglect to
Join in the appointment of appraisers as afore-
said, then it shall and may be lawful for the
selectmen, or commitlce aforesaid, to opply to
nny two justices of the peace of the town of
Bo^itoni which two juslir-es Eiliall, upon such ap-
]>licAtion, notify the party so refusing or neg-
lectini;. and after siu-h notice duly given, the
said two juslici-a shall hnve full power and au-
thority to appaiiit any three freeholders of the
town of BoHton, who shall have the Game power
and authority in valuing any piece of land ; and
nil persons shall be as fully bound thereby as
though the partie had joined in the appoint-
ment.
'"And whereas the inhaliitants of the 1*31
town of Charlestowo are, by reason of tbeir
losses in this present war, so redur'cd in their
circumstances as Co be rendered unable, with-
out the assistance and encouragement of the
public, to carry said plan into execution —
"Sec. 9. Be it further enacted b; the au-
thority aforesaid, That from and after the
passing of this act. there ehal! be allowed and
paid out of the public trea^iury of this Com-
ilth, to the Honoralila Nalhaniel Gor-
Wood, Jul ,
of all the taxes paid by the town of Charles-
town, for the space ot seven years, to be ap-
plied to the purposes before mentioned.
"Sec. 10. And be it further enacted. That
the Treasurer of this Commonwealth be, and
hereby is, directed to poy into the hands of
the said Nathaniel Gorbam, Thomas Russell,
David Wood, Jun.. or the survivor of
them, one half of all the taxes laid upon said
town, for the purposes aforesaid.
"An Act authorizing the United States to
purchase a certain tract of land En Charlea-
town. for a navy yard. Passed 17th June,
1600.
"Sec I. Be it enacted by the Senate and
House of ReprPKcntatives. In general court as-
sembled, and by the authority of the same.
That the consent of this Commonwealth be,
and hereby is, grsnted to tho United States, to
purchase a tract of land cftualed in the north
easterly part of the town of Charlcslown. >«
tho County of Middlesex, adjoining and bound -
' on two sides by Charles and Slystle Rivers,
it exceeding sixty-live acres, exclusive of
flats, for the purpose of a navy or dock ^rd,
or both of them, and creclmg ma»atines,
arsenals and other nretlfiil buildinga. The cv\-
doneo of the purchaaea aforesaid, to be entered
Pct«ra 11^
ISM
Habub rr al r. Eixiorr.
ud rteonted In tlie ngittrj otieria in tbe s&Id
Caunty □( Jlidillesfx. Provided Always, and
till eonient aforeiiaid it gnnted upon the ex-
prera condition tliat tliia Commonwealth hIibI]
ntain • concurrent juri«diction with tlie Unit-
ed Slatea, in and over tha tract of land afore-
•aid, BO far aa that all civil, and Buch crim-
inal pi ores wB as may issue uoder th« author-
itj 01 tbia Commonwealth, against an7 person
18'Jor persons *cliarf;ej with crimei commit-
ted witliout the said tract of land, may be
executed tliTein, in the lame way and mann
H thoujjh this tonecat had not been granted.
■Ijet. 2, And be it further enacted, Tliat if
lbs agent or agents employed for the United
States, and tlie owner or ownera of said tract
of land so to be purchased, cannot agrca in the
sale and purchase thereof, luch agent or agenti
may apply to any court of general session* ol
tlw peace which aliall be holden within an^
for tlic aforesaid County of Middlesex; which
(ourt. after due notice given to the laid owner
or owners, are hprcby empowered and directed
to faiur, and finally determine the value of
tbe iame tract, of land, or any part or portion
thereof, by a jiirj', under oath, to be summoned
by a sherilf or hia deputy tor that purpose, or
by a committee of three persons, if the parties
■(oreraid can a^H'M upon them; and the value
thereof being thus ascertained by the verdict
of such jury, or the report of such committee,
«)io are also to be under oath faithfully and
impartially to value said tract of land, or any
portion of tbe same; and such verdict or re-
port being accepted and recorded by aaid court,
■nd Um amount thereof being paid or tendered
to the owner or owner* of said tract of land,
at to the owner or owners of any part of said
tract of land that shall have been thus valued,
■ith bit or her reasonable costs; the said tract
ol land, or auch parts of the same as shall be
thus valued, shall forever be vested in the
United States, and shall and may be by them
taken, poHsrsscd, and appropriated to the pur-
pose* aforesaid.
'Upon the trial and statement of facts In
this cause, the following questions occurred,
aa whidi tbe opinions of the judges were op-
FMcd, and thereupon it waa ordered by the
tourt, on motion of William Minot, of counsel
tor tha plaintiffs, that the points on which the
dieagrtement happened should be certified to
tbe Supreme Court for their decision:
1. Whether the toil and freehold of the
Mreet called Henley or Meeting-houae Street,
tad of the street called Battery or Water
Street, did or did not pass to the United States,
Older and by virtue of the term appurtenances,
Bsed by the jury in their verdict in the de-
scription of tha lot No. 2, or by tha deacrip-
!•*] tion *in eaid verdict of lota No. 1 and 3,
or by the proceedings by which the land was
Uken by the United States.
"^2, Whether the limitationa contained tn
said statute of October 30, 1781, ts a bar to the
plaintifls' rif;bt to recover tha soil and freehold
of said streets.
"1. Whether, upon the discontinuance of a
h^way in Mas>,actiusetts by the public, the
Hd and frefhold of such highway reverts to
Ok owner of the land taken tor auch highway.
*4. And npon the fact* stated, whether the
flaintifls have ftny riK^t «l title to tttf l*nd*
• L. ltd. — ' ■•
posed to have been committed, and ct
tain their said action."
The case was presented to the court on m
printed argument, prepared by Mr. Minot, nf
Massachusetts and was also argued at the bar
by Mr. Reed, for the plaintiffs; ond for tlte de-
fendant, by Mr. Butler, Attorney -General of
the United States.
Upon the first point reserved: "Whether the
soil and freehold of the street called Henley
or Meeting ho uae Street, and of the streot
calld Battery or Water Street, did or did not
pass to tbe United Slates under and by virtue
of the term 'appurtenances,' used by the jury
in their verdict m tbe description in the SHine,
of lots No. 1 and No, 3, or by the prncceding'i
by which the land was taken by the United
States;" it was contended —
That the 2d section of the Act of June IT,
IBOO, authorizing the purchase of the navy
yard, provided, that if the United Stiitea, by
their agent, and the owner of the laud cannot
agree, the land taken by the United States sliall
be valued by a. jury. John Harris did not;
agree that the land should be taken, and thb
transfer was made in invitum, and, therefore,
Harris cannot be considered aa having made a
voluntary conveyance. Before Meeting -house
Street and Water Street were laid out, all the
land was owned by him from the lane leading
to the brick-yard to low water-mark. Thoi'
streets were laid out betora IBOO, and the jury
valued the lots which were leparated by tbe
streets in distinct parcels.
The verdict lindB that tha jury wera shown
several lots of land, and that they had set out
these lots by metes and bounds. *lf the [*4I)
United States meant to take tbe whole land of
Harris, including what was covered by streets,
It is not easy to conjecture why the jury should
have valued It In separate lots; no advantage
eould result to either party from this valuation.
The statute doi>s not require that the land
should be set nut by metes and bounds ; and all
that could have been necessary waa to describe
the land, with reasonable certainty, so that it
should appear that it was within the limits al-
lowed for the purchase.
'lut, in fact, the jury did not take tbe whole
Mr. Harria's land; they left a small gore
adjoining the lot No. Z, which hia adminis-
trators sold to Commodore Hull, and which he
sold to the United Statesj and this gore is now
within the precincts of the navy yard.
It ia inferred that the jury did not Intend
to include, and did not, in fact, include tbe
soil and freehold of the streets as parts of tbe
land taken and valued by them, from the fol-
lowing facts and reasons:
1, The jury describe the several lots as they
were inclosed by fences running completely
round them; and where they were bounded by
streets, describing them as running on or by
tbe streets, and thereby excluding the etreets.
In fact, a map of the lots could not afford n
more perfect or definite description than the
jury give.
The only doubt which has been suggested,
whether the streets are excluded, arises from
of the word "appurtenances" in the dC'
BcriptioQ of the second lot. It was argued in
Ute court below, that If the term "appurte-
ixt
Bdfrkhi Coubt or trb Unitbd BTATsfc
]S3«
IMncpa" carried the two Btre«ts, on whidi the
Mcnnd lot was bounded, it would give all tlie
■liccts of which said Harris owned the aoii;
but tliia is an error in fact.
Water or Battery street extends from the eaat
end of lot No. 2 to a point marked B, on the
southeast corner of lot No. 1, a distance of more
than three hundred feet; and for that distance,
it cannot be pretended that the soil of the street
can be affected by any conatruction of the terra
"appurtenances," as used in the description of
Ko. i.
2. It appears, from the statement of facta,
that there were buildin^a on lot No. 2, and no
building! on the other lot. This caused tho
jury to uae the term "appurtenances" in refer-
41*] ence to 'this lot, as, in common parlance,
this term is often used to mean buildings.
There is no technical nicety in any of the pro-
ceeding, and the agent of the United States
did nut employ counsel, nor was he a lowyer.
3. If the jury intended by "appurtenanceii."
to include streets, why not U9e it as to other
lots, some of which are entirely surrounded by
streets, and particularly lot No, 1. These
streets are of equal importance to the navy
4. There ia no award of the value of the
streets, and as the owner of the ground did not
voluutiirity submit to the proceeding, aJI that
was taken should have been valued.
6, On the north aide of lot No. 1 there is a
road leading to the hriek-yard; this is one of
the roada discontinued by the town. In 1801
the town sold the road to Aaron Putnuni. in
consideration of his agreeing to make a nenr
roftd in another place,
Tho ground covered by the road conveyed
by tiie town was, by the grantee, afterwards
sold to the United States in 1801. The pur-
chaser from the town was the agent of the
United States, thus allowing they did not con-
sider the soil rf the streets oa taken by the jurv,
6. When the United States tonk the land
from Harris, the streets were public highwaya,
and the aoil was of little value to Harris to sell,
encumbered oa it was with the casement; nor
could he make any valuable use of it, until the
fosement was discontinued.
T. The protest of ILirris, made in public
towm mrcling, is evidence that he did not be-
lieve the Eoil of the streets had been set olT by
the jury; and that be considered himself as
possessing an interest of some value in the
It was contended by the defendant, at the
trial, that in the construction of devises, though
lands will not pass under the term "appurte-
nances," taken in its strict technical sense; yet
they wilt pass if it appears that a larger sense
was intended to be given to it.
But the authority of the maxim that land
cannot be appurtenant to land, is not impaired
by late authorities. It is recognized in I.«onard
T. White, T Maes. R. 6; Uoane <l. Broadstreet
Corp. 6 Mass. R. 332.
42*] *It must be a very manircat intention
of the testator, to be drawn from the will itself,
which will induce the court to take the word
"appurtenances" in its larger sense. Several
authorities on thia point are collected in a note
to Smith et al. ▼. Martin, 2 Saund. 400.
In Leonard *. White, 7 Maaa. B. 6, it b da-
cided that a deed conTeytng: ■ lot of land witb
a mill on It, ''with the privilegea and appurte-
nances thereto belonging," did not pass the so!)
of a way leading from the road to tlie mill,
though the easement might pass as appurtenani
to the land conveyed,
Jackson V. Hathaway, IE John. R. 447
Where a person, over whose land « highway it
laid, sells the land on each side of the highway,
by auoh a description as does not Include the
road any part of it, the soil of the highway doi-a
not pass to the grantee, as it is excludt-d by the
description of the land granted, and cannot
pass as an Incident, though the deed contained
the usual sweeping ctauee of all right, title, in-
terest, etc.
In Tyler v. Hammond, 1 Pickering, 103, the
defendant h'Od a lot of ground, gra]ited with
an exact description of all the boundary lin--*.
The deed contained a sweeping clause, under
which the defendant claimed the suit in the ad-
joining highway; but the court held that tlie
particular description controlled the sweeping
clause in the deed, and that the highway did
not pass as an incident or appurtenant.
Second point; "Whether the limitation con-
tained in tbe statute of October 30, 17S1, is a
bar to the piaintilfs' ri'rht to recoter the suil
and freehold of said streets."
Upon this point, it was contended that tlie
Legislature meant to ennfurm, as nearly as poo-
sible, to the existing stnlutes relative to high-
ways, and to provide an equitable contributiun
from the property not taken for the hi^hwuvt,
in consequence of the benefits derived froig
The preamble states the destruction of the
town by the events of the war; and in 17S0 an
effort was made to recover it, and to lay it out
in regular streets, anti enable the inlinbiianta to
rebuild their houses on an uniform plan.
The committee was appointed by the town
of Ciiarleatown, and, under the laws of Massa-
chusetts, they had no right to lay 'out [*4S
streets; that power being in the selectmen, or
persons acting under their authority, subject to
the ratification of the inhabitants in town
iting.
The proceedings of the c
take away the rif^'hts of soil
could not
le, and tbe
limitation of thc^r power was the inducement
to apply to the Legislature for the act to eon-
firm their proceedings. That act did no mure
to give the same validity to the proccedinga of
the committee than to make them equivalent to
the proceedings under the highway statute. It
was no advantage to the town to have the fee
in the lands over which atreeta were laid out;
and it cannot be supposed that it was in^<'nUed
to give the town of Chariestown more than tiie
highway laws give to any other town in tbe
Commonwealth. By the provisions of tlie
highway laws, when land is regularly taken
for a highway, no action f.r possession or for
damages can be maintained. Such only waa
the operation of the special act.
The preamble to the 4th section is in tlie aaiiM
language of the highway atatutea, "Damages
for laying out," etc., is not descriptive of tha
loss of the freehold. It is used to express tlia
value of the euEenient taken by the public.
The common law, which preserves the free-
hold of a road to the owner of tbe land, waa
IM
Easub it al. v. Elliott.
earl; adopted in HaasaehiuetU, uid It U not
*4iy to conjecture why the kw ibould be ol-
tered in this particulur instance; a lingls in-
•lanee eine« tLe lettlement of the colony; oi
«^ lucb an alteration abould be desired.
But the plaintiffs insist that the defendant's
eotutniction of the Act of 18Q1 cannot be cor-
rect, became inch an operation of the act would
infringe the oonstitution of the State of MasB.i-
cbusetta, which provides {10th section of the
decUuAtion of rights), "that nhcuever the pub-
lic exigencies require that the property of any
Indiriduat should be appropnated to publi<
--a, be shall receive a reaSon"'
n therefor
ofonable eompetua-
Public exigencies require that highways shaU
be Isid out, and a reasonable compensation for
the land taken for them is provided by a serieit
ol statutes. But it ia only a public exigency
which juttiGes such an appropriation of private
property, and no euch exigency existed in this
ease. The appropriation of the freehold of a
rosd to the public was wholly unncceasnry anil
44'] totally 'worthless. It is true that the
statute provides a compensation in this case,
but from the language used "damages for tak-
ing" being the same as used in highway
statutes, it may be inferred that the Legislature
inteaded damages fot the casement only. It
einnDt be presumed that the Legislature intend-
ed unnecesiarily to violate private property, or
to depart froia the usual course of legistatiun
Ml similar subjects; and in the absence of any
manifest intention in the statute itself, to take
the freehold of the streets, as well as from the
luelessness to the town of such a proceeding, it
it manifest that the Legislature nave adhered
to the usual course of legislation on the subject
of highways, and have given to the town all
that it was needful for it to possess, without
unnecessarily violating the property of an iadi-
It may be said that John narris baa given
validity to an illegal act by accepting a com-
Tbe reply is, that he had a right to eompen-
vtion for the easement; that what he received
was accepted by him for the value of the ease-
BKnt; and this ia apparent from his protest at
ths surrender of the streets to the nnvy yard,
"m account of his right to the advantages of
the streeta."
But it ia doubted whether the laying out of
Water or Battery street and Heetin^-bouae
street ia affected by the operation of this stat-
ftaa. The streets in Question were laid out up
to the present line ol the navy yard in 1T31,
bat were not carried into the land now occu-
pied by the navy yard until 1796 and 1790, and
the Isind now claimed by the heirs of John
Harris was not taken from him till 1796 and
17M. The streets were not laid through the
■afj rard in 1781. There was no taking of
Haniri land at that time, and there oould be
W danufes before taking. The referees in
I7H speu of a street propoaed to lead to the
■Mting- house, "but not yet opened."
Ota the atatuto of 17B1, conarming poat pro-
setdiags, bai as action f Of aa aet doat ia ITHtt
tked.
Harris had sustained no damage In 1781. NoUi-
ing was taken from him; be had the vesture
Hnd herbage and all other proGts of the land
till 1790.
■It will be seen by reference to the l'*i
statement of facts that the town of Charlestown
sold Back Isne, one of the streets in the navy
yard not laid out by the town's committee in
1781, and upon which that act could have no op-
eration. >roiii this fact it appears that the
town considered itself vested with the whola
property in the sti-eets by the mure act of lay-
ing theui out, and did not consider that proper-
ty aa derived from the Act of 1761.
On the third point: "Whether, upon the
discontinuance of a highway by tbe public, in
Massacliuselta, the soil and Creebold of such
highway reverts to the owner of the land taken
for sucli biglnvay," it was argued: that, it ia
the settled law of Massachusetts that by the lo-
cation of a way over the land uf any person.
the public acquire an easement; but the soil
nnd freehold remain in the owner, although en-
mbored with a way, and if the way be dis-
continued, he shall hold the land free from the
encumbrance. Tliis position is fully sustained
by the decisions of the Siipivme Court of Mas-
sachusetts, in Commonwealth v. Peters, 2 Mass,
R. 127; Fairfield v. Williams et ah 4 Mass.
427; Ferley v. Chandler, 6 Mass. 454; Alden v.
Murdock, 13, 2130; Stackpule v. Henley, 16 Mass.
3£, Bobbins v. Bowman et a1. 18 Mass. 122.
The plaiiitiUs' counsiil also referred to the
opinion of Air. Justice IStory in the case of The
United States v. Richard D. Unrris, Circuit
Court Massachusetts, October Term, 1830. Re-
ported in 1 Summer's Reports.
Mr. Reed, for tbe plaintills.
By the inquest it appears —
1. That tlve lots or parcels of Innfl were ap
praised and taken by the United Statts.
2. That each lot was measured and particu-
larly bounded.
3. That the lots were bounded as abutting
the streets, and by the streets (the very streets
claimed in this action), and ex vi termini ex-
cluding the streets.
It is contended, then, as a neccasar;^ infer-
ence, that the etreets being tbe land claimed by
the plaintills, and once the property of llieir
ancestor, J oil n Harris, were not spprupriated by
the jury, were not set off by the jury, or paid
for by the United Statesi 'and of course (*4«
did not pass to the United States, but remained
in the said John Harris.
But it is contended that the soi! and freehold
of the streets being the land now claimed,
passed under and by virtue of the word "appur-
tenances," used by the jury in the appraiRsI of
one lot, No. 2.
There ia no award of tbe value of the streets.
The jury were bound to value all the land tak-
en by the United States; and the United States
were bound to pay for all the land they took;
but it was not valued, or paid for, or taken.
The word "appurtenant" mi^ht have been
used by accident or caution; or, what ia moat
probable, with a view of conveying three houses,
OS tbe statement of facts flnds that there were
three houses on lot No. 2, and no houses on the
other lots. It is admitted the houses would
have passed without the wordj but the jury
44 SuPBEUE CouBi OK :
might hnve hten IgnoraTit of th« lavj or hsTO
shown to make aB^urance doubl; sure.
It il clrnr tl^at thera was no intention on th«
5 but Bt
ivoy the streetB
doea not appear. The etreeta cannot pass by
the word "appurtenant."
The lot No. 2 touches a part ot the way onlf
Upon the two strceti now claimed.
1. It is contended that it is a well-aettled
principle of law, that land cannot be appurte-
nant to land.
2. If there be exceptions to this principle, it
IB in casi!3 wliere the intention of the parties is
manifest, and where the court reject the legal
and technical menning to eatablish and effectu-
ate the manifest intention.
If such construction is clBimed, let it be clear-
If shown that such was the intent.
The reverse is the fact.
The other four lots taken were bounded by
streets, and lot No. 1 was surrounded by streets,
all a part now of the nary yard; why did they
not use the word appurtennntt
Second point: In examining the statute of
October, 1760, it is very material to bear in
mind the subject matter about which
47*] 'they were iegislatirg. The subject mat-
ter was streets, lanes, squBrca, etc.
By the law of Maasachuaetts, town roads arc
laid out by a class of magistrates called aclect-
men. In the present case the streets, lanes, etc.,
were laid out by a committee, and not by the
Icpal authority. The laying out, therefore,
needed legislative sanction and conflrmatioii.
Charlestown did not apply to the Legislature
because they wanted streets and lanes different
from other towns, nor the fee in the streets ; but
bcuuse they wanted streets, etc., laid out by it
committee, and not by the authoriEed magia-
tratea the selectmen.
By the act referred to, of 1780, the easement
or privilege of highways alone puased.
1. Why did the town desire the feel No man
had foresight to look forward to the time when
it might be of use. No other town had such a.
fee in a roadi and it appeara from the very act
referred to, that one half their Uxea were
relinquished by the State to enable them to pay
for the roads, and surely under such oircum-
■lancea they could not desire to buy, nor would
the State coneeut to aid them in purchasing
what they did not need, and what other towna
did not possess.
Another ar^ment not to be overlooked ii,
that it is a principle of law that apccial acta in
derogation of private rights should be construed
strictly. Harris parted with no portion of his
land voluntarily; let it then be clearly Bhown it
waa taken by force of law. His land cannot
legally be taken by doubtful construction.
The most material point and ar^ment, and
which is considered unanswerable, la the objec-
tion Arising from the constitution of Massudiu-
■etta.
By the 10th section of the declaration of
rights it Is provided, "that whenever the pub-
lic aiigencies require that the property of any
Individual should be appropriated to public uses,
he shall receive a reasonable compensation
therefor."
It is contended in the case on trial that the
**4 of tlw iMd vu Uhen. But tbrn Legiil*'
II
■IE LiKiTiD Statu. ISM
tvre had no authority to take it unlesa the pub-
lic exigencies required it. It ia mauifeet tba
public exigencies did not require itj the euM-
ment waa required, and not the fee; *and, (*4S
therefore, the Legislature cannot be presumed
to act in violation of the Constitution, and if
they did so act, their acts are void and not
binding.
Tho Act of 1730, then, granted the easement
and not the fee; and the Srst section of the ftct
barring all actiona for recovering possession of
any land lying within any of the streets, lanea,
squares, etc., was intended to apply to the OM,
the easement; and waa intended to be in force
BO long as those lanes, ways, and squares were
used for the purposes for which they were laid
out, and no longer.
Again: It is contended that the Act of ITBO,
above referred to, confirmed and legalised th«
laying out of lanes, streets, etc., agreeably to a
plan laid before the court. The atreets being
the land now in controversy, were not in fact
laid out until 1796 and 1799 and, therefore, no
plan of such streets could have been laid before
the Legislature in 17S0. What is a plan, or
chart, or map, but a picture of aoinething real!
The streets in question were not laid out pre-
vious to the law, and were not confirmed by
the law.
Upon the third point, the printed argument
and the authorities cited were referred to.
Mr. Butler, Attorney -General, for tlie de-
fendant.
Upon the first point presented by the counsel
for the plaintiff, it is admitted that the title ol
the plamtilTs to the freehold, and to the soil
covered by the streets, did not pass to the town
of Charlestown, or to the United States, hold-
ing under the proceedings instituted to obtain
the ground used for a navy yard. But, in
order to recover in this action, it is necessary
that the plaintiffs should show a right to enter
on the land, and to possess the same. If the
United States acquired a ri^ht to use the gronnd
as a navy yard, no such nght existed; and it
is contended that such a use is entirely con-
sistent with the purposes for which the appro-
priation of the ground to public purposes mm
made. The United States entered and held
under the town of Charlestown; and unleu th«
plaintiffs could recover the soil and possesaion
from the town, no recovery can be had from
the defendant.
In the act under which the navy yard was
established, and *tbe ground taken, there [*49
is an express provision that if at any time the
navy yards shall be abandoned, the atreets In-
terrupted and thus temporarily closed, shall be
re -established. There is therefore a remaining
and subsisting right in the town of Charlestown
to the streets; which may be in full operation
and effect at a future time. The claim of tba
plaintiffs is to the absolute and present owner-
ship of the ^ound; and this ia altogether in-
consistent with the actual state of things, and
the rights which rest upon the theme.
The uae of the soil on which the streetB wei*
laid, Is not inconsistent with the righta ac-
quired by the United States. There may be «n
easement as to the soli, as well as in the surf«c«
of the land. This exists in a right of way, ■■
the right Implies the privllema to ma part o(
Um hu for nwking and repairing tha road— ao.
last
Hadbis n AL. *. Euiorr.
tno, thr ris'it to aljr K Miwl— ttie right to make
brirkt, and to burn lime.
Aa to th« plainlifTB' Hnt point, thkt the use
of tlie term "Hppimen»iirea" did nut carry
with it t)ie ri^ht to the soil of the street!, it i*
■dnitted. The decision of Mr. Juitice Story
referred to by the c-ounae) fnr the plaintilfB (1
Gamnrr's Reports) establialies this. This is
alio cbown by the appXctitioD of the United
Btatea to tiie tovn of Charleatown to use the
itrecis for the navy yard; which was contem-
poraneous with the proceedings to obtain the
land of Harris.
It is niao admitted that It fa the settled taw
of M.isaacliusetts that tlie risht of soil reverts
to the owner, if a way is discontfnneJ. Thlt
li In harmony with the rule of the common law.
But it -is denied that, in this case, there hiin
tiecD such a discontinuance and abandontnent
ef Ihe right of way as to operate to fta^xttn-
goishment or surrender.
T)>e United States liave a rtght to the poi-
•ession of the eti-eets, and to use the soti for tha
purposes of a. nnvy yard, and of erecting on tha
■sme all the buildings required for the same.
This right ia derived from the Act cf ITSl.
By that act the soil of the atreelg was taken
for public uses. The pstablishment of a town,
■nd the purpo^ns of the safety and convenieiiw
at the inhabitnnts, were in the views of those
who appr.iprijteil the same for streets. The
VM* of the streets for a navy yard, and build-
tC] ings 'connected with it, were aroong those
for which the streets were laid out and the
ground taken.
It is dented that lawa auch as this shall ba
'eonitrued strictly. The appropriation made
-of the strerts and the soil on which they were
Jaid ont. wus one of great piiblic interest. A
l*ir which authorizes auch an appropriation
should fa^ive a liberal construction. Such laws
•re not in derogation of private righta. They
llfeet private rigtita, but when they operate a
.preat public go<3, they are not to be confined
in Lheir application. This has been decided In
Kew York, is caaes where the landa of private
persons were taken for the canala of that Stnte.
a) Johns. Rep. 735; 7 Johns. Chan. Rep, 315,
3i8, 330. These caaea show that where acta
ara passed eminently for the public good, they
mre to be liberally construed.
As the object of the law of 1781 was to allow
the ground to be taken for public usee general-
ly, some of those uses are not defined, but they
are included in the word "etc." These words
inelode all that is claimed. They are inserted
in the general provision of the statute, and
they are also included in the recital in the 4th
section of the act.
The argument of the plaintiffs ts that the
law only authoriaed the taking the land for
streets; but the "etc." gave more powers, and
iDcIuded other objei:ts. Lord Coke assigns to
these words a signiUcnnt extension, and a pow-
•rfu) meaning. If the words "etc." had been
tarried out, the law would have aald "for
other like puTpoaea." The worda "etc," are
fqnivalent to "other like purposes."
Could not the town of Charlestown have erected
defenses on the streets t Market houses and
court houses are often erected on streets; and
this is Jone under a liberal construction of the
Icgislntire acts. The erection of a navy yard
is fully Buthoriied liy this view of the law.
Under Ihe fourth reserved point, it is eon-
teniled that the soil of those streets was dedi-
cated by the ancestor of the plaintilTs to public
UEPS. From IBOl to 1814 there was an ac
quiesoetice "in the approjirintion made of [*SI
the ground by the United States, for a navy
yard. Why did not Harris take immediate
measurea to repossess the land as soon as the
navy yard closed them? From IROl to IBI4 b«
was alive, during which they were so used.
Harris proteated to the town of Charlestown,
but not to the United SUtes. This was a dedi-
cation to public uses of the Innd^n individual
may malw such a dedication. S Peters, 431.
Hr. Justice Thompson delivered the opinii a
of the court;
This is an action of trespass, and the declaru-
tion contnina two counts. In the llrst count
the locus in quo is descril>ed as a certain elose
situated in the town of Cha.'lestonn, measuring
four hundred feet in length nnd forty feet in
width, formerly called Henley Street; and in
the second count, the Iocuh in quo is described
aa a dose in the same town, measuring seven
hundred and fifty feet in length and forty feet
In width, formerly called BalUry or Water
Street. And upnn the trial of the cause the
following queslions occurred, upon which the
opinions of tliu judges were opposed, and the
points have been certiHcd to this court, vil.:
1. Wbether the soil and freehold of the
street called Henley or Meeting;- house Street,
nnd of the street called Battery or Water
Street, did or did not pass to the United
States, under and by virtue of the term appur-
tenances, used hy the jury in their verdict, iu
description of lot No. 2, or by the description
in said verdict of lots Nos. 1 and 3, or by the
proceedings by which the land was taken by
the United States,
2. Whether the limitationa contained in the
suid statute of October 30, 1781, is a Wt to
the plaintilTs' right to recover the soil and free-
hold of said streets.
3. Whether, upon the discontinuance of a
highway in Massachusetts, by the public, the
soil and freehold of such highway reverts to
the owner of the land taken for such highway.
4. And upon the facta above stated, whether
the plaintilfa have any right or title to the
land taken for said streets on which the tres-
pass la supposed to have been committed.
It appears from the statement of facts in the
case, that in the 'year 1780, a committee, [*SS
appointed by the town of Charlestown, pro-
jected certain streeta in the town, and laid
them down on a plan or map, which was
deposited and now remains in the oflice of the
Secretary of State of the Commonwealth of
Massacliuaetts; and that on the 30th of Octo-
ber, 1781, the Legislature of tlint State passed
an act confirming the doings of that committee,
and burring actions in certain cases therein
speciQed. John Harxia, the ancestor of the
fiUPIBUB COVBT or TUB UKITBD STATI
eompriwd the two parcels dcBcribed in the dec-
IftTktion, and which are porta of the land througJi
which mid Htreets are laid down on the said
plan or map, in the year 17S0i although, in
point of fact, Batt«rj or Water Street was not
laid out and opened until the year 1795 or '8,
and Henle; or Meeting-hnuBe Btreet not until
the year 1703 or '9. Theae streets passed over
the land of John Harrii, and ha received from
the town of Char] est own a compensation in
damages far taking the land belonging to him
for the streets. In the year 1800, the govern-
ment of the United States, under the authority
of an act of the LegJBlature of ilassachusetts,
purchased of John liarris several parcels of land
now included within the limits of the navy yard,
in the town of Charlestown; and in the jear
1801, by an arrangement between the town of
Cbarleatown and the United States, these
streets so far as they were within the limita of
the navy J'ard, were closed up, and have ever
since been discontinued, and ceased to be used
aa public highways; and have been used aa a
part of the navy yard. The act of the Legisla-
ture of Massachusetts consenting to the pur-
's of the land ao to be purchased, cannot agree
in the sale and purchase thereof, application
may be made to any court of general sessions
of the peace of the County of Uiddlesex, which
eourt is authorized to summon a jury to value
the same. The agent of the United States and
John Harris, not agreeing as to the value of the
land BO taken by the United Statea, the same
was ascertained by a jury duly summoned ac-
cording to the provisions of the act; and by the
proceedlnga of the jury for that purpose, and
tlie return made thereupon, Qve lots of land
SS*] were appraised which belonged to 'John
Harris which are particularly oescrihed by
metes and bounds, and some parts of the land
to appraised is bounded upon and by the said
■treetsi but no part of the locus in quo in either
oount in the declaration, is included within such
bounds and description- The description of
one of the lots so taken and appraised, begins
•a follows: "One other lot of land, with the
appurtenances, containing one half of an acre,
bounded aa follows," etc., particularly deacrib-
ing the lot, but not including the highway; and
one of the questions arising under the first point
h whether, under the term "appurtcnancea," the
•oil and freehold of the street passed to the
United States. This term i* not used in the
deacription of either of the other tots. The in-
quest of the jury, after particularly describing
by metes and bounds, each lot, concludes in
each case aa follows: "Which same tract of
land, ott our oatha, we nppraiBe and value
at ," and the act of the Legislature of
MaaaachuBctts declares that such parts of the
land so valued and paid for by the Llnited States
dial] be forever vested in the United States,
Inquest, therefore, shows that the jury appraised
the land only included within the description;
and the act only vesta the title to such land na
■hall be appraiaed. The streets were clearly
not appraised, and ao did not pass to the United
States, unless they passed aa an incident undor
the t«im "appurtenaacaa." U, from tba use of
tbia term, eonneoted with and explained by tha
other parts of the Inqueat, It clearly appeared
to have been the intention of the jury to inolnde
the streets, it might be considered a part ol^
and explanatory of the description, and be
carrying into effect the intention of the jury.
But if no such conclusion can be draws, tM
term must receive its legal and appropriate in*
terpretation. There is no ambiguity iii the de-
scription of the lot, necessary Ui be explained;
' " is difficult to conjecture what oonid have
description of any of the other lota. It does, to
be sure, appear that there waa upon this lot
several houses, and none upon any of the othet
tots; and it is not unlikely that it was in-
tsnded to apply to the buildings upon tlie lot)
but this was unneceeaary, as they would paai
'with, the land, although, from the lut/U ^^4
as disclosed in the ease, we cannot disooTsr any
appropriate application of the term, yet wa
cannot undertake to say that there waa not any
right or interest inddent to this lot, which wanM
pass under the term "appurtenancea." But there
is no ground to warrant a construatlon, that H
waa used in reference to the soil and freehold
of the street, oc anything to take it out of
the strict, legal, and technical Interpretotio*
of the term. This term, both in common par-
lance and in legal acceptation, is used to aignify
something appertaining to another thing aa
principal, and which pasaes aa an incident to
the principal thing. Lord Coke says (Coke lit.,
121, b.) a thing corporeal cannot properly be
appurtenant to a thing corporeal, r"- ■ tf.™-
to this rule, land cannot be appurtenant to li
In the case of Jackson v. Hathaway, IS Johns.
454, the court say it is impossible to protect
the defendEUit on the ground that the adjoinir.g
road passed by the deed, aa an incident to tha
lands professedly granted. A mere easemoit
may, without express words, pass as au inci-
dent to the principal object of the grant; but it
would l>e absurd to allow the fee of one piece
of land, not mentioned in the deed, to paas aa
appurtenant to another distinct parcel, which
is expressly granted by precise and definite
boundaries. And in the case of Leonard r.
WhiU, 7 Mass. Rep- «, it waa decided that by
the grant of a grist mill, with the appurte-
nances, the soil of a way, immemorially used
for the purpose of access to the mill, did not
pass; although it might be considered aa a
grant of the easement for the accommodatioa
of the mill. Cro. Elis. 704; Cn>. Char. 67;
3 Salk. 40. The answer, therefore, to tbia
branch of tbe question, must be that the soil
and freehold of the streets did not pass under
and by virtue of the term appurtenances, nor
is there anything in the description of lots Noa.
1 and 3, in the verdict of the jury, nor in tlte
proceedings by which the [and waa taken bjr
the United Statea, from which it can be in-
ferred that the soil and freehold of the atreeLa
E as lied to the United States. It has been shown
y the notice already taken of the verdict and
proceediTiga that they do not include the atreeta.
I'he same answer must, therefore, be given to
this branch of tlie queation-
2. 1'hat part of the Act of the 30th Ootober,
1781. under wMoh 'the Mcoad question [*Sft
Petenl*.
Tui tlSflEB OP TtlCKRR & ThOUPBOK T. UOBnAHD.
irlM^ b M follows: [Section 1.1 "^hat thr
wid proceediDKB of the c(»ninittee be, 1.11(1
hereby are confirmed, and Sill actions that shall
be brought for reeoverine poaapasion of
■ges nirt«ined or occasioned therebj, Bball be
Dtterlj and forever barred." Tbe preamble to
thit act refers to tbe deatructioa of Charlestown
bj Sre, and that a oommittee had been ap-
pointcd by the town for regulating tbe strceta,
lanea, and aquarea in that part of the town
which had been laid waste by the fire; and that
the eommittee bad proceeded to lay out the
■ame, a plan of whicb had been depoaiteil in
the ieeTetary'e office. Thii preamble Btatea that
tbe committee waa appointed to regulate the
itreets, which might not, perhapa, in strictness,
anthDriie them to alter tbe streets; but the act,
ia lereral parte of it, evidently looks to and
providei for csgcs where the streets were wid-
ened and altered. This mode of laying out
itreeta was not aecordine to the general law of
Uassaehuselta, and the object of tbe act was to
legalize and confirm tbe proceedings of tbe com-
aU&
aiy land so taken for streets, lanes,
squares, etc, or for damages sustained by any-
one therebj. This bar of all actions, waa to
protect and establish the doings of the coia-
nittee in laying out the streets; but does not
ieemtolook to any question relating to the soil
and freehold of the streets, if the eoscinent
ibould at any time thereafter be di^I^ontin1led.
Thia question is nut stated with precision, and
alight, perhaps, admit of a more general view
of the Act of 1781, and open the inquiry whether
tbe right of the plaintiffs to the soil and freehold
of the streets waa not taken away by it ; but as
tbe cause must go back for farther proceedings,
we do not think proper to enter into tbe moro
leneral consideration of this act, or touch the
qnestionaato itseCTeot upon the plaintiff's right
to the soil and freehold of the streets, but only
Isdde that auch right, if it exists, is not barred
by the first section of the act.
3. Upon the third point, tbe law in Masaa-
ehusetta is well settled that where a mere
essemcnt ii taken for a public highway, the
•oil and freehold remain! in the owner of the
had, encnmbered only with tbe easement,
M*] and that upon the discontinuance *of
the highway, tbe soil and freehold revert to
the owner of the land, i Mass. Rep. 427, 6 Id.
4H. 13 Id. 259, IB Id. 33.
i. The fourth question is too general, em-
Itradng the merits of the whole case, and does
sot present any single point or question; and
it has been repeatedly ruled in this court that
tbs whole cose cannot be brought here, under
the Act of 1802, upon auch a general question.
TUi act provides only for bringing up in this
manner apeciflc questions, upon which the
judges in the Qrcuit Court may be opposed in
Several questions growing out of the facts
^ thia case have been suggested at the bar de-
serving consideration; but they are not stated
la sn^ apecific points aa is required by the
Mttled course of the court, and no opinion will
nf eoorse be expreaeed upon them.
This cause came on to be heard on the tran-
script of the record from the Circuit Court
of the United States for the District of Massa-
chusetts, and nn the points and questions on
which the judges of tbe aaid Circuit Court
were opposed in opinion, and which were
certified to this court for its opinion agreeably
to tbe Act of Congress in such case made and
provided, and was argued by counsel; on con-
sideration whereof, it is the opinion of this
court, on tbe first (question so certified as afore-
said, that the soil and freehold of Henley
or Meeting-house street, and of Battery or
Water street, did not pass under and by vir-
ture of the term "appurtenances," used by the
jury in their verdict, nor was there anything in
the description of lots one and three in the ver-
dict of the jury that passed the soil and free-
hold of tbe said streets to the United States.
2. On tbe second point, it is the opinion of
this court that tbe right of the plaintiffs to re-
cover the soil and freehold of the said streets
ia not barred by tbe limitations contained in
the statute of October 30, 17S1, as set forth In
the record.
3. On tbe third point, it la the opinion of
this court that upon the discontinuance of a
highway in Massaehu setts by the public, the
soil and freehold of such highway revert to
tbe owner of the land taken for such highway.
*4. On the fourth question, no specific [*5T
point being stated, this court can express DO
opinion, as it has been repeatedly ruled in this
court tlutt the whole case cannot be brought
here under the Act of Congress of 1802, upon
such a general question. Whereupon it is or-
dered and adjudged by this court that it be to
certified to the said Circuit Court.
ELIZA Q. MORELAND.
Ejectment B. being seised of a tee In certain
real estate In tbe cltj at WSBblngton, od tbe 1st
December. 1831, eiecuted a d.'ed to K. W. Tbe
deed recited be tbe couslderalion that B.. with one
BIdk. was Indebted to T. « T. In tbe siiin at 13.238.
(or wblcb a promlsaor:^ note bad been given to se.
cure the paymeot ot which the converance was
Ihe nonpayment ot tbe debt ; and tbe saine was
sold on the Tib of Uarch, tgSS. tot thot purpose
by W. as trustee, and was bj htm conveyed to_T.
* T..
] In
bis mother.
of the property until Ki
conveyed It, with other proncrtT, to bis motl
E. a. M.. Id CO n«l dp rat Ion of tl,13S due to her;
for which a suit had been tDsilCuted ; and ot otbcr
advaocea made to bim. At tbe time of the isle
by W. notlre was riven of tbe title of E. Q. H.
— the premises, and ahe gubUcJj d-' ' —
as her ■
an ejecic
, Eviaen__. _.
t brought by T. k T. ogali
t the trial c
■t of avoidance of a deed executed by aa
Bt be as Bolcmn and notorloua as tbe
It. BJacle Fire Ins. Company v. Lent, 1
SuPKBUt COUKT or THI UltlTXD STATefl.
183"
<ru flTPB to prti*» (list, a
s mnde he »
a Manxneld. In Zoui
Inund to da. and would I
do lir a court o( pqiiltj.
The d«od given hy II. lo 1
inch a title to then rb wcjid enable tbem to __.
tain an action at eji-ctment tor ttie propirtv.
To aasume na a matter of law. that a Toluntar;
howerpr true It mny b«,
Mnd biniaelt br deed Id r
ol tbP case. K
It hlp Patrrli
►•T B
a hj suit, an nhen he dlaaflliT!
the !in[e ot hla chatteta. and
Bometlmea by a writ of error, aa when he
d a nne dvirlDK hla nonajce : aoDietlmea by
rrit ot audita querela. -- •— ' — "■- "■
■ for the
■topic
merchant; ■ometlmea, ■■ Id the eaac of an allena-
frr iptatem. after his arrlral at ajte.
Where the act ot the Infant ta br matter of
record, he must avoid It b; aome act of rx^ord (aa.
for Inatance, hy a writ of error, or an audita qae-
relai durlnn his minority. But If the act of the
Infa-t la a m'tler In pal^. ft ma; be avoided br an
act Id pats of equal aoleranltv or Dotorlety ; and
thlB, according to aome aulborltlea, either during
!.._ -p afterward"; and according to oth-
The di-cd of B. t
after I
I. H.. being ot aa high i
Uke away the very protection v
l«nda to throw around him to guard blm from
alleeta of bl> (oil;, raabneaa, and misconduct.
IN CTTor to the Circuit Couft »f the TWa'r'H
of CotiimliiB in the County of Wnsliin'.-I tiii.
An action of ejectment waa inatilitleil in llie
Circuit Court, for the nvf)vrry of ci-rtniif rcitl
estate in the city of Washington, chiimoi) br
the plaintllTn in error, under a deed evrciitcd
by Richard N. Barrv. on the drat day of De-
cember, 1B3I. to Richard Wallnth.
The deed recited that Richard N. Barry kn.1
GeoTf^ Bing stood indebted to Tiicker A
Thompson, of the city of Waahinplon, in the
sum of -f3.2^f). for which they had passed to
them their joint and seveml promissory note,
payable in six montha; and to lecure th« pay-
ment ot which note, with the interest, in
twelve montha, Richard N. Barry had agrcH
to execute the anme. The deed, then, conveyed
to Richard Wallach and his heirs the property
in controversy 1 in trust, to sell and dispose
of the same, and after rtppropriating tb«
proceeds of the sale to the payment of the
debt and interest, and expcnsea of sale, to p*y
over the residua to the grantor. It also con-
tained coven.anta on the part of Barry to keep
Ihf buildings on the pn-midcs insured apiinst
loss by fire, and to tranifcr the policies to the
trustee) and for further or other deeds of con-
vej'ance to the purchasers of the prvmieea. in
order to carry the purpose of the truat Inlo
complete elTect.
The defendant derived title to the SMue
property uudT a deed of indcntnre, executed
by the same Richard K. Bnrrv, on tlie 8th ol
Febmary, 1833. by which the iirpiitiace in on-
troreray and 'other Iota of ground wore (*«0
conveyed to her. she being the mother af
Richard N. Barry, "in consideration of the
Bum of $1,1.1H.«1. which he onred to ttie wid
EliEB O. Moreland, for the n-covery of which
she had instituted a suit in the Circuit Court of
the United Stales foi the District of Columbia,
and of other auriis of money by her to hin
from time to time pnid and advanced, ■ p>r-
ticular account of which hEul not been kept."
On the trial of the cause, it was admitted
that Barry was aeircd in fee of the premises,
when he executed the deed to Richard Wal-
lach; and that after the execution thereof, he
continued in possession until the Sth of Febm-
nry, 1833, when the deed to the defendant w»«
made, and which deed waa duly recorded.
Evidence was alao given by the defendant
When
wife, who
payment of bis debts, ui
I nghlB, belog iDformcd. v
deed cannot after wardi
. UcLean. 3
t. altbougb
IcDOrance of her tega
she signed the deed.
judlce her rlghta, auci
aet op against ber as
In tbe Innd so conveyEu. i»u
falge, IIT.
A conveyance by an Infant fe ...
executed and acknowledged In the mi.
acrlbed by statute, la voldT Ibid.
Where land Is conveyed to an Infant who glvei
back a tiond and mortgage for part ot tbe purchaae
noney, and the Infant took poiaesalon. and afttr he
waa tn-eolyoae years of age sold and conveyed
*.. . ,_.... .. .^. . — _^.jjg ^ijj^ Jul! iinoT^.Lpjjj^ of ftje
..._.... --.ri^ge was a le-
gal
w of It the I
d did
What cont
Miy. LMtM
»4»
lod If on B Bale
d not bring ennugS
Budd, 2 Falgs. IRl.
at Infanta are told, .
raaer, t BUI, MO.
cuted c
t of a
-. j|» tL.
cpreacnlatlve can avoid It. II
The deed of an Infant, upon a
r hii l«tnl
1 by tbe Infant
t majorlly. t
take proper-
Melgs- K. 176.
An Intact can oniy aroia an aet aone oi reconi,
pending Infancy : otherwlae as to acts In nala. An;
act after Iwenly-ODC dlsavaivlng or (lianenflng from
a deed delivered during Infancy, with pqiial ma-
lemnlty with tba deed, hdduIb and avoids the deed.
Breckenbrldge T. OriuBUy, 1 J. J. Uanb. 2^-2.
A bond and morlgngc given by an Infant were
declared void, and a pi'ipetuil Inlunctlon graoled.
Colcock *. rtiguBoa, S Dssaua. t82.
Patera 19.
Thk Lbssec or TucKts 1 THOursoir t. Mouojim.
teadtng to prove thmi, under the deed to her,
■he took poBsesiion of the premiies, and con-
tinued to bold poMeiiion at the same up to the
time of the trial of the cauie.
The plkintifTB fpvt eridence to the jury to
prore that Richard Wallach, the truitee men-
tioned in the before- mentioned deed of trust,
dal; advertUed the tale of the lot and premiies
h the declaration mentioned, and sold the
■ame to the plaintiffs on the 23d of February,
1U3, and made to them a deed for the tame
OB the 7th day of March, 1833.
The defendant gave evidence to prove that
at the time of the sale made by Richard Wal'
lich SB aforesaid, the said defendant gave pub-
lie notice of her title to the said lot and preoi-
Iws, and there publicly claimed the same at of
ber ab«olute right.
Upon which said evidence, ao admitted and
(iven, the counsel for the defendant prayed the
eourt to inatruct the jury that if thej believed
the evidence so admitted and given as afore-
said to be true, that then tbey ought to find
their verdict for the defendant; which inatruc-
tion the court refused to give.
To this refusal the defendant excepted.
In addition to the evidence given as afore-
itid, the defendant gave evidence to the jury
to prove that at tie time the said Richard Bar-
ry made and executed his deed aa hereinbefore
mentioned to Richard Wallach, of the Ist of
December, 1831, he the aaid Richard Barry,
*M an infant under the age of twenty-one
j'eari, and that at the time he made his deed to
<1*} the defendant *of the 8th of February,
IB33, before mentioned, he, the aaid Richard
Barry, was of full age, that is to aay, upwards
•f twenty -one years of age.
Whereupon the counsel for the defendant
prayed the court to instruct the jury that If,
npon the whole evidence aforesaid, so given to
the jury, they shiuld believe the facts to be as
stated aa aforesaid, then the deed from the said
Richard Wallach to the plaintiffs, as hereinbe-
fore mentioned, does not convey to the said
^aintiSs any title which would enable them to
■nstain this action.
Which instruction the court gave, and to
which the plaintilfs, by their counsel, excepted.
The plaintiff, farther to maintain and prove
tba tsaue on his side, then gave in evidence, by
eompetent witnesses, facts tending to prove
that the aatd Richard N. Barry had Attained
the full age of twenty-one yean on the four-
teenth day of September, 1931 ; and that in tha
month of Kovcmber, 1S31, the said defenduit,
who was the mother of the said Richard, did
assert and declare that said Richard was bom
on the Itth day of September, 1810; and tlutt
she did assert to Dr. McWiltiams, a competent
and credible witness, who deposed to said
facts, and who was the aeeouchBr attending on
her at the period of the birth of her aaid aon,
that such birth actually occurred on the said
Utii of September, 1810; and applied to said
Dr. McWilliams to give a certificate and deposi-
tion that the said day was the true date of tb«
said birth. The counsel of the plaintiffs r*-
qiieated the court to instruct the jury —
was of full age and above the age of twenty-
one years at the time of the execution of said
deed to aaid Wallach, or if the defendant shall
have failed to satisfy the jury from the evi-
dence that said Barry was, at the said date, an
infant under twenty-one years, that then tbe
plaintiff is entitled to recover.
2. Or if the jury shall believe, from the taid
evidence, that if said Richard waa under age
at the time of the execution of said deed, that
he did, after his arrival at age, voluntarily anJ
deliberately leeoaniae the aame as an actual
conveyance of hia 'right, or during a [*<1
period of several months acquiesce in the sama
without objection, that then said deed cannot
now be impeached on account of tbe minority
of the grantor.
3. That the said deed from the said Richard
N. Barry to the defendant, being made to bei
with full notice of said previous deed to said
Wallach, and including other and valuable prop-
erty, is not so inconsistent with said first deed
a> to amount to a disaffirmance of the same.
4. That, from tbe relative positions of tb«
parties to aaid deed to defendant, at and previ-
ous to its execution, and from the ciroum-
■tancea attending it, the jury may infer that
the same was fraudulent and void.
G. That if the lessors of plaintiff were in-
duced, by the acts and declarations of defend-
ant, to give a full consideration for said deed
to Waliaeh, and to accept such deed as a full
and only security for the debt bona fide due to
i protection _. ___ __.
. „ arhltrBtlon whereby thej —
Kved of thst protection, aught not to bs lanc-
ncd : Ibcugh bj rule of the court and the award
he !■ their lavor. A submlulaa br iDlaoti, though
wllh adults caoDot be obligator* on sitlier part;.
Brittoo T. Williams, 0 Uua7r463-
A letter of attornej, given br an iDFaot, Is abao-
lotely void. Pyle v. Craveua, 4 Ltlt 18.
The avoidable acta at an Infant will be conllrmed
by slight act! and clreumBtaaca after hs la of axe.
Utmaaa r. Boja. 1 Dana, 43.
^A nentlable note eieculed b; an Infant Is void.
WMD um court finds tbe conlraet of an Intaat
M>udldal to blm, It Is void. When It Is for his
beacAt, as for necessaries. It la good; but wbeo It
Is of as uncertain nature as to beneflt or prejudice,
>t la vsldable onl; at the slectloB of the Infant.
inUan T. Ulchmond, e Xarger, >.
iloatloa of tlie ricbts of parties who ha'
fli.
sales of their lands during Intaucv, to avoid
when of ft, Ufa f . I«n4sr, 1 Dan*, U}.
therei
Una or oisamrm lae morcgaffe. ii ne amrmmi m
he must par the smount or deliver the Koodi, ae>
cording to Its tenor. If he dliofflrmed the mort-
gage, be must restore the goads or account tor their
value. He cannot alBnn tbe sals and keep (be
goods, and at the same time repudiate the mort-
gage. Ottman v. Uoak, 8 Saodt. Ch. 431.
Intaney Is a perional privilege to be taken advan-
tage of b; the Infant alone: It does not protect
biB sureties or Indorser*. Parker v. Baker, 1
Clarke. IBS.
Whatever mar be the rule as to exeentlng eea-
tracti, It Ib cleat that tbe executed contract of so
Inlant Is voidable odIj. and ODlr the Infant ar bis
legal repnaeDtatlTea can avoid It. Lester T. Wa-
■er. Kll. Ch. Ca. T6 : 8. C. S UlU'a Ch. Ml.
The court o( chsneerr protects an Infant against
his own Immature Judgment aod Improvident con-
duct, as well ae against the acts and designs of
other*. Moor* t- Iw**. * *t"4- Cb- !T.
SUFBEMX CoraT or Ttu Uritbd Stato.
them, and property bond flde advanced by them,
and to believe that the said eecurity was valid
and effective, thnt then it is Qot competent for
•aid defendant, in this action, to queatinn or
deny the title of said plaintiff under said deed;
whether the said t,ela and declarations were
made fraudulently, and for the purpoae of
practicing deception; or whether said defend-
ant from any cause willfully misrepresented
tbe truth.
Whereupon, the court gave the first of the
Mid instructions so prayed u aforesaid, and
refused to give the others.
To which refusal the counsel for the plain-
tlfT excepted.
The court having refused the 2d, 3d, 4th, and
Sth instructions prayed bjf the plaintiff, and
the CDuneel, in opening his case to the jury,
Oontending that the questions presented by the
■aid instructions were open to the consideration
of the jury, the cotuisel for the defendant there-
upon prayed the court to instruct the jury that
if, from the evidence so as aforesaid given to
the jury, and stated then, prayers for the said
inotructians, they should be of opinion that the
said Richard was under the age of twenty-one
years at the time he made his deed, aa afore-
said to the said Richard Wallach, under whom
the plaintifTs claim their title in this case; and
that at the time he made his deed, as hereinbe-
fore mentioned to the defendant, he was of full
63*] age, that such last- mentioned 'deed was
a disalhrmance of this preceding deed to him,
the said Richard Wallach; and that, in such
case, the Jul; ought to find their verdict for the
defendant; and that the evidence upon which
the 2d, 3d, 4tli, and Sth instructions were
S rayed by the plaintiff as aforesaid, which evi-
ence is set forth in the instructions so prayed,
is not comp:-tent in law to authorize the jury
to find a verdict for the plaintill upon any of
the grounds, or for any of the rcasona set forth
in the said prayers; or to authorize them to
find a verdict for the plaintiff, if they should be
nt opinion that the said Richard Barry was un-
der the age of twenty-one years at the time he
made his deed as aforesaid to the said Richard
Wallach.
Which instruction the court gave aa prayed,
and the counsel for the plaintiffs excepted
thereto.
The plaintiffs prosecuted this writ of error.
The case was argued by Coze for the plaintiff
in error, artd by Mr. Swann and Mr. Bradley
for the defendant.
For the plaintiffs, it was contended that the
Circuit Court erred in giving the instructions
prayed by the defendant, and in refusing the
instructions prayed by the plaintiff. That the
deed ot an infant is not void, but merely void-
able. That there was competent and sufficient
evidence before the jury from which they might
infer that if the grantor, Richard N. Barry, was
in fact an infant at the date of the deed to Rich-
urd Wallach, he had affirmed the deed after he
same of age. If the grantor, Richard N. Bar-
ry, was at the date of the deed to Richard Wal-
lach an infant, the defendant was guilty of a
fraud; of which he could not avail himself to
defeat the recovery of the plaintiffs in this ac-
Tbe CSmiit Court erred in oonsidering the
*rts of an infant, which are voidable by him
Cited, 3 Butt, 1794; S. C 1 Sir. Wm.
Black. 675.
If an infant does an act which is voidable
he cannot recall it without repaying the eon-
sideration he received for the first conveyanc*.
He can only re-instate himself, by re-instating
the person from whom he claims what he had
conveyed to him in all he *had obtained ['•4
from uim. The disposition of court to restrain |
the power of infants within this rule, has been
manifested by the later decisions of courts, in
which such questions have been decided. The
protection of infants which courts have given
IS a shield of defense, and is not to be used aa
a weapon to injure others. Cited, 7 Cowen,
17B, 181; 15 Mass. 359; 13 Mass. 37; 2 Evani's
Pothier, note 20.
But whatever may be the power of Barry
over the deed executed to Mr. Wallach, the de-
fendant cannot avail herself of the infancy ot
her son to sustain a title derived from him
against one held under the deed of trust. She
had excluded herself from denying the full age
of her son, by asserting that it existed before
he made the deed of trust, and procuring it to
be admitted by the Orphans' Court, when Bar-
ry claimed, and, under the authority of that
court, obtained the possession of his property,
as being of full age.
The plaintiff had a right to submit these
facts, and to have the benefit of them befai'e
the jury, and this was denied to him by the
Circuit Court.
Mr. Bradley and Mr. Swann, for the defend-
ant, denied that the case of Zouch v. Parsons. 3
Burr, 1704 sustained the princ-iple claimed under
by the plaintiffs' counsel. That case had no
application to such a conveyance as was made
to Mr. Wallach, which was a deed creating a
trust, with covenants into which an infant
cannot enter. The authority of the case of
Zouch v. Parsons has been questioned and de-
nied. 2 Preston on Conveyancing, 24.
But if the deed to Mr. Wallach was only
voidable, full evidence of its disaffirmance ia
given by the execution of the deed to the de-
fendant; which contains a covenant of warran-
ty, as well OS a covenant of title. He was in
possession when he executed this conveyance.
To show how a deed frivert by an infant can ba
avoided when he attains full age, cited 14
Johns. Rep. 124. In all cases of affirmance of
his acta while an infant, on his attaining full
age his affirmance must be express. Cited, 1
Johns. Cases, 127. The casea show that a deed
of bargain and sale given by an infant may be
disaffirmed by a deed of bargain and sale when
•he attains full age. In the case befotw ['BS
the court, more has been done; a deed has l>een
executed with covenants of warranty and title;
the grantee has had possession ever since th>
conveyance.
The charge of fraud could not be sustained.
At the time of the application to the Orphans'
Court, a mistake was made as to the age of
Richard N. Barry, which was afterwards di*-
covered. But the plaintiffs cannot avail them-
selves of those circumstances, The validity ^
the deed of trust depended on the age of tlM
Santor; and this was the question propwlj
fore the court and jury. The deed to the d«-
Pel«rs 1».
m<
Thi Lessee or Tuckeb t Troufboit t. MoBcuink.
rpititrint vm given Tor a fair and raluable eon-
lidemtinn, nnd it in s rnlid de<>d ; if, nhcn
the prior deed wna executed, the grontor wns
ui infant. To this evtcnt, and no more, were
the liiKtructions of tbe Circuit Court given;
and thev are auatained by the soundest priu-
dptes of law.
Mr. Justice Ftory delivered the opinion of
This is a writ of error to the Circuit Court
for t':e County of Washington and District of
Columbiu.
The original pction was an ejectment brought
by th> plainlilT in error against the defendant
ill error; nnd both pttrtics claimed title under
Rieh;',rd N. Parry. At the trial of the cause
upon Ihr general iasue, it waa admitted that
Richard N. Barry, Intng seized in fee of the
Eemiaes sued for, on the first day of Decern-
r, 1831, executed a deed therrof to RieharJ
Wallach. The deed, after reciting that Barry
and one Ring were indebted to Tucker ft
Thompson in the sum of three thomnnd two
bundi-ed and thirty eight dollars, for which
Ibey had given th^ir promissory note, payable
ia six mcnths after date, to secure which the
convpjBtii'o was to be madi', conveyed the prem-
ises to WallacH. in trust to sell the aame in
caw the dHit should reinnin unpaid ten days
■fler the first day of Dpccmber then nest. Th«
Mine were nccuri!jngly sold by Wallach. for
default of payment of the note, on the 23d of
February, lt33, and were bought nt the sale by
Tucker 4, Thompson, who ivceived a deed of
the same on the 7th of March of the same year.
h was admitted that after tite execution of the
deed of Barry to Wallach, the former continued
in possession (if tbe premises until the 8th
88*1 of February, 1833, when he executed 'a
drtJ, including tbe same and other parcela of
land, to his riiolher, Eliza Q. Horeland, the de-
fendant, in eonsiderution (as recited in the deed )
of the sDni of one thousand one hundred and
thirty-eight dollars and sixty-one cents, which
he owed his niother; fur the recovery of which
■he had instituted a suit against him, and of
other sums advanced him, a particular account
of which bad not been kci>t, and of the further
sum of five dollaiv. At the time of the sale of
Wallach, tbe defendant gave public notice of
her title to the premises, and she publicly
claimed the sime aa her absolute right. The
defendant further gave evidence at the trial to
prove that at the time of the execution of the
deed by Barry to Wailaeh, he, Barry, was an
infant under twenty-one years of age; and at
the time of the execution of the (feed t« the
defendant, he waa of the full age of twenty-
Upun this itate of tbe evidenoe, the counsel
for tlie defendant prayed the court to instruct
the jury that if, upon tlie whole evidence given
as aforesaid to th« jury, they should believe
tbe facts to be as stated niuresaid, then tbe
deed from the baid Wallach to the plaintiSi did
not convey to the plaintilTs any title which
would enable them to sustain the action. This
instruction the court gave, and this constitutes
tbe ehceptioD now relied on by the plaintiff in
■TTor in his first bill of «xceptians.
Sob* eritieism has been made upon the lan-
Kuog* in which tbia instruction ii oouched.
But. in substance, it raises the question which
has been so fully argued at the bar as to the
validity of the plnintifT*' title to recover; if
Barry was on infant at the time of the execn-
tion of his deed to Wallnch; if that deed was
orirnnlly void, by reason of Barry's infancy,
then the plaintiff, who must recover on tlie
strength of his own title, fails in that title. If,
on the other hand, that deed was voidable only,
and not void, an(l yet it bos been avoided by
the subseiguent conveyance to the defendant by
Barry; then the sane conclusion follows. Anif
these, accordingly, are the considerations, which
arc presented under the present instruction.
In regnrd to the point whether the deed of
land by an infant Is void or voidable at the
conimnn law, no inconsiderable diversity of
opinion is to be found in the authorities. Tliat
•some deeds or instruments under seal of [*B7
an Infant are void, and others voidable, and
others valid and absolutely obligatory, is not
doubted. Thus, a single bill under seal given
by an infant for necessaries, is absolutely bind-
ing upon him; a bond with a penalty for nec-
essaries is void, OS apparently to his prejudice;
and a lease reserving rent is voidable only.'
The difficulty is in ascertaining the true prin-
ciple, upon which these distinctions depend.
Lord Mansfield, in Zoucb v. Parsons, 3 Burr.
1604, said, that it was not settled what is the
true ground upon which an infant's deed is
voidable only; whether the solemnity of the in-
btrument is suflicient, or it depends upon the
semblance of benefit from the matter of the
deed upon the face of it. Lord Mansfleld, upon
a full examination of the authorities on this
occasion, came to the conclusion (in which tbe
other judges of the Court of King's Bench con-
curred) that it was the solemnity of the in-
strument, and delivery by the infant himself,
and nut the semblanoe of benefit to liim, that
constituted (be true line of distinction between
void and voidable deeds of the infant. But he
admitted that there were respectable sayings
tbe other way. The point was held by the
court not necessary to the determination of
that case, because in that case the circumstan-
ces showed that there was a semblance of ben-
efit sufficient to malte the deed voidable only
upon the matter of the conveyance. There can
be little doubt that the decision in Zouch t.
Parsons was perfectly correct; for it was the
case of an infant mortgagee, releasing by »
lease and release his title to the premises, upon
the payment of tbe mortgage money by a sec-
ond mortgagee, with the consent of the mort-
gageor. It was precisely such an act as tho
infant was bound to do; and would have been
(^impelled to do by a court of equity, as a
trustee of the mortgageor. And certainly it
was for his interest to do what a court of equi-
ty would by a suit have compelled liim to do.'
Upon this occasion, Lord Mansfield and the
court approved of *the law a* laid down [*•&
by Ferkins (sec 12) that "all such gifts, grants,
or deeds made by infants, which do not take
effect by delivery of his baud are void. But
8clw. «70 ; Co. Lilt. iia. a.
3. — 8ce T. [landcock, IT Ves SS3 ; 1 Ponbl.
Eq. book L ch. 2. sec 5 and notes, Co. Utt. ITS ■ t
Com. Di(, Infant, book 6.
SonnfK Comr of ths UmtCD Statu.
all glttt, gT»nt«, or deeda made br infantB by
natter of deed or in writing, which do take ef-
fect by deliver; of hie hand, are voidub'e b,v
himietf, by his beim, and by those wlio have
hU estate.^ And in Lord Mnnsllpld's view the
words "which dc talce effect" are sn essen-
tial part of the definition; and exclude letters
of attorney, or deeda, which delegate a mere
power and convey no interest.' So that, ac-
nording to I>ord Klanafield's opinion, there is no
difference between a feoffment and any deeda
which convey an interest. In each caw, if the
infant makes no fcofTment or deliTen no deed
in peraon, it talce* effect by lucli delivery of hia
hand, and is voidable only. But if eitber be
done by a letter of attorney from the infant, it
ii void, for it doeg not take effect by a delivery
of hia hand.
There are other authoritiea, however, which
■re at variance with this doctrine of Lord
Mansfield, and which put a different interpreta-
tion upon the language of Perkins. According
to the latter, the aemhianoe of benefit to the
infant or not, is the true ground of holding hie
deed voidable or void. That it makes no dif-
ference, whether the deed lie delivered by his
own hand or not; but whether it be for liis
I>enefit or not. If the former, then it is void-
able; if the latter, then it is void. And that
Perkins, in the passage above elated, in speak-
ing of gifts and grants taking elTect by the de-
livery of the infant's hand, did not refer to the
delivery of the deed, but to the delivery of the
thing granted; as, for instance, in the case of a
feolfmeDt to a delivery of seisin by the infant
personally; and in case of chattels, by a deliv-
ery of the same by bis own hand. Iliis is the
■enie in which the doctrine of Perkins is laid
down in Sheppard's Touchstone, 232. Of this
latter opinion, also, are some other highly re-
■peetable tert writers ; ' and, perhaps, the
• t*] weight of authority, 'antecedent to the
decision in Zouch v. Parsons, inclined in the
same way. Lord Chief Justice Eyre, in Keane
*. Boycott, 2 Hen. Black. 61G alluded to this
distinction in the following terms. After hav-
ing corrected the generality of some expressions
In Litt., see. 26B, be added: "We have seen
that some contracts of infants, even by deed,
■hall bind them; some are merely void, name-
ly, such as the court can pronounce to be to
their prejudice; others, and the most numeroue
das*, of a more uncertain nature as to benefit
or prejudice, are voidable only; and it is in the
election of the infant to afGrm them or not. In
Roll. Abr. title "Knfsnts" [1 Roll. Abr. 720),
and in Com. Dig., under the same title, instances
are put of the three different kinds, of good,
void, and voidable contracts. Where the con-
tract is by deed, and not apparently to the
prejudice of the infant, Comyns states it as a
rule that the infant cannot plead non est fact-
um, but must plead hie infancy. It is bis deed;
but this is a mode of disaffirming it. Ue, in-
deed, statea the rule generally; but I limit it to
that ease, in order to reconcile the doctrine of
void and voidable contracts." A doctrine of the
1.— See SsuDders v. Mann. I B. Black, TB.
2. Bee ITeston on CoDveysDclnj, 24H to 250;
Com. Dig. UnteDE, ch. -J; Bhep. Touch. 233. and
Acherlr's note ; Bac, Abr., Intancj. I. 3 ; iCaallsb i
Haw Jours^Cor lilM.^g. llS^S Amer. JurliOST. |
same sort was held bj tke court In ThonpaoB
V. Lesch, 3 Mod. 310; In Fisher v. Mowbray,
S East, 33n; and Baylis v. Dineley, 3 M. ft
Seivt. 47T. In the two last cases, the court
held that an infant cannot bind himself in a
liond with a penalty, and especially to pay In-
terest. In the case of Baylis v. Dineley, Lord
Eltenborough said: "In the case of the infant
lessor, that being a lease, rendering rent, im-
ported on the face of it a benefit to the infant;
and his accepting tbe rent at full age was con-
clusive that it was for bis benefit. But how do
these authorities affect a caee like the present,
where it is clear upon the face of the instru-
ment that it is to the prejudice of the infant,
for it is an obligation with a penalty, and for
the payment of interest T le there any author-
ity to show, that if, upon looking to the instru-
ment, the court can dearly pronounce, that it
ie to the infant's prejudice, they will, never-
theless, suffer it to be set up by matter ex post
facto after full age!" And then, after com-
menting on Keane v. Boycott, and Fisher v.
Mowbray, he added: "In Zouch v. Parsons,
where this subject waa much considered, I Hud
nothing which tends to show that an infant
may bind himself *to his prejudice. It t*70
is the privilege of the infant that he shall n'jt;
and we should be breaking down tbe piotcctinn
whi(Ni the law has cast around him if we were
It is apparent, then, upon the English ao-
thorities, that however true it may be that an
infant may so far bind himself by deed in cer-
tain cases, as that in consequence of the solem-
nity of the instrument it is voidable only, and
not void; yet that the instrument, however
solemn, is held to be void, if upon its face it is
apparent, that it is to the prejudice of the in-
fant. This distinction, if admitted, wonid go
far to reconcile all the cases; for it would de-
cide that a deed by virtue of its solemnity
should be voidable only unless it appeared on
its face to be to his prejudice, in which case it
would be void.'
The same question hae undergone no incon-
siderable discussion in the American courts. In
Oliver v. Hendlet, 13 Mass. Rep. 239, tbe court
seemed to think the true rule to be that
those acts of an infant are void which not only
apparently but necessarily operate to bis preju-
dice. In Whitney v. Dutch, U Mass. Rep.
402 the same court said that whenever the act
dune may be for the benefit of the infant, it
shall not be considered void; but that he shall
have his election, when be comes of age, to af-
firm or avoid it. And they added that this
was the only clear and definite proposition
which can be extracted from the authorities.*
In Conroe v. Birdeall, 1 Johns. Caa. 127, tba
court approved of tbe doctrine of Perkins (sec
12] as it was interpreted and adopted in Zoucb
V. Parsons; and in the late case of Roof v. Staf-
ford, 7 Cowen's Rep. 180, 181, the aame doe-
trine was fully recDgniied. But in an inter-
slev'i notes h and v ; Co. Lltt. SI : S Han. Dot*
;i»l ; Ilolmn v. Blast. 8 Tauot. EOS : 1 Foifiil. &«.
book 1. cb. 11 sec. 3 and ootei j s a b.
S.— Bee Bac Abr., Infancf and Ag*. I. S, 1. T.
4. — Be* Boston Bank T. Cbambwiain, IB Uaa^
Peten 10.
1831
The Lessicx or Tucker & Tuuufsoh v. KIubelano.
10
iBcdktc ease, Jackson t, Burchin, 14 Johns.
Rep. 12a th« court doubted whether a bar-
JBin *ad sale of knds bj an infant was a valid
»il to pans the land, aa jt would make liim
■tanil seized to the use of another. And tliut
doubt was well warranted by what la laid down
in 2 lost. 673, where it is snid that if an infant
bargain and sell lands which are in the reality,
bj dped indented and enrolled, be may avoid it
when be will, for the deed was of no eiTctt to
Tl*] 'The result of the American decisions
has been oorreotly stated by Mr. Chani^ellor
Kent, in hia IcarnL'd Commentaries (2 Cum.
Lett. 31), to be, that they arc in favor of con-
struing the acta and contracts of infants geoer-
alJy to be voidable onl]', and not void, and aub-
doctrine of Zouch v. Parsons has been recog-
nited and adopted as law. It may be add^,
that they seem generally to hold that tho deed
of an infant conveying lands is voidable only,
and not void; unless, perhaps, the deed should
manifestly appear on the face of it to be to the
prejudice of the infant; and tbis upon the na-
ture and solemnity, aa well aa the operation of
the mstrumcnt
It is not, however, necessary for ns in this
esse to decide whether the present deed, either
fiom its being a deed of bargain and sale, or
fraa its nature, as creating a trust for a sale of
the estate, or from the other circumatancea of
tbecase, is to be deemed void, or voidable only.
For if it be voidable only, and liaa been avoided
by the infant, then the aame result will follow,
that the plaintiiTs title is gone.
Let us, then, proceed to the consideration of
the other point, whether, supposing the deed
to Waltach to lie voidable only, it has been
avoided by the subsequent deed of Barry to
Urs. Moreland. There is no doubt that an in-
fant may avoid his act, deed, or contract, by
dUfoent means, according to the nature of the
Mt, and the drcumstaaces of the case. Ub
Bay sometimes avoid it by matter in pais, aa
ia ease of a feoffment by an entry, if his
entry is not tolled; sometimes by plea, as when
he is sued upon his bond or other contract;
■MBetimea by auit, as when he disaflirniB a con-
tract made for the sale at hia chattels, and sues
tm the chattclsi sometimes by a writ of error,
u when he has levied a Ane during his nonage;
sometimea by a writ of audita querela, as when
be has acknowledged a recognizance or statute,
staple or merchant;' sometimes, aa in the case
of an alienation of his estate during his nonage
by a writ of entry, dum suit infra ntaten, aft-
er hia arrival of age. The general result seems
to be that where the act of the infant is by
If] matter of record, he 'must avoid it by
some act of record (aa, for instance, by a writ
of error, or an audita querela) during his minor-
ity. But if the act of the infant is a matter in
pais, it may he avoided by an act in pais of
•qnal solemnity or notoriety; and this, accord-
ing to some authorities, either during his non-
age or afterwards; and according to others, at
alt events, after hia arrival of age.* Tn Co. Utt.
380, b.. it U said, "lle>x-in a diversity is to be
o1iaerv°d between mutters of rectird done or
sulTered by an infimt, and matters in fait; for
itmttera in fait lie bhnlt avoid either within ag<^
or at full age, an bath bec-n said; but matters
of record, as statutes, merclianls and of the
staple, recognixancrs, aciinowledged by him,
or a Enc levied by liira, recovery a<;aiiist him,
etc., must be avoided by him, viz., atatules, etc.,
by audita querela; aiid the fine and recovery
by a writ of error during his minority, and
the like." In short, the n.iture of the original
act or conveyance generally governs, as to the
nature of the act required to be done in the
diaallirmance of it. If the latter be of as hi;;b
and solemn a nature a.s the former, it amounts
to a valid avoidimce of it. We do not m<-an
to say that in all casrs the act of disalTirmonec
should l>e of tho same, or of as high and
solemn a nature as the origiiml act; for a drcJ
may be avoided by a plea. Hut we mean only
to say that if the act of disanlrmnnce ha of a^
high and solemn a nature, there is no ground
to impeach its Bullicitncy. Lord Ellenborough,
in Baylis v. Dineley, 3 Maule 4 Selw. 4S1, 433,
held a parol confirmation of a bund given by
an infant after he came of age to be invalid,
insist in^ that it should be by Eonii' thing
amountmg to an estoppel in law, of as high au-
thority as the deed itself; but that the same
deed might be avoided by tlie plea of infancy.
There are cases, however, in which a conHrma-
tion jnay be good without being by deed; as in
case of a lease by an infant, and his receiving
rent after he came of age.'
The question then is, whether, in the present
case, the deed to Mra. Moreland, being of as
high and solemn a nature as the ori<;iiiaI deed
to Wallach; is not a valid disnUirmAnce of it.
We thinlc it is. It it was a voidable cnnveyoncc
which had passed 'the seizin and pos- ['73
session to Wallach, and he had remaineil in
possession, it might, lilte a feoffment, have been
avoided by nn entry by an infant after he
came of age,' But in point of fact, Barry re-
mained in pofsession, and therefore he could
not enter upon himself. And when he con-
veyed to Mrs. Moreland, being in possession,
he must be deemed to assert hia original in-
terest in the land, and to pass it In the same
manner as if he had entered upon the land
and delivered the deed thereon, if the aame had
been in an adverse possession.
The cases of Jackson v. Carpenter, 11 Johns.
R. 63S; and Jackson v. Burchin, 14 Johns, R.
124 1 are directly in point, and proceed upon
principles whlcn are in perfect coincidence
with the common law, and are entirely satis-
factory. Indeed, they go further than the eir-
cumetances of the present case require; for
they dispense with an entry where the pos-
seaaion was out of the party when he made the
second deed. In Jackson v. Burchin the court
said that it would aeem not only upon principle
but authority, that the infant can manifest his
dissent in the same way and manner by which
he firat assented to convey. If he has given
L. Dig. Enfant
I, S, B, 11: Z last. 673 ; 2 Keat. toutta. n
Bae. Abr. Infancv and Age, I. 0, I. 1.
■ —See Bac. Abr., lafSDcj and Aie, 1. 1
- ■ - - ~ --- i4;^0Qri
8 Burr. 1764 ;
ford, 7 Cowen K. ITS, 1S3 ; Com. Dig. EnfaD^ C.
H. C. 4, C. II.
S.^See Uac. Abr. IdCsdct and Age, I. 8.
4.— See iDhabllsntB of Worceatei v. Eaten, IS
Uan. &. 87S: Whltaeir *. Dutch. 11 Uasa. R. 442.
BSl
TS
8[iraBiiK Covn of tiib Uritbd States.
lfv«r^ of leliin, he miiit do KB act ol rqual
notoriety to dUsllirm the lirit act; he must
enter on the land and make known hm di>-APTit.
U he hfti eonvQjed by bargain and sale, then
ft Kcond deed of bargain and eale will be
equally Bolemn and aotorioua in disaflinnance
of tbe flrat,' We know of no authority or
principle which contradict! this doctrine. It
■eema founded in good aenee, and followa out
the principle of notoriety of disaffirmance in
tXa-r^aae of a feoffment by an entry; that is, by
an act of equal notoriety anJ aoleninity with
the original act. The case of Frost v. Wolver
ton, 1 Strange, 94, aeems to have proceeded
on thla principle.
Upon these grounds we are of opinion that
the deed of Barry to Mrs. Uoreland was a
complete disaffirmance and avoidance of his
! trior deed to Wallacb; and consequently, the
nstructjon given by the Circuit Court was
74*1 unencsptionable. To give effect to 'Buch
diaafflrmancG, it was not necessary that the in-
fant ihould first place the other party in statu
The second bill of exceptions, taken by the
plaintiff turns npon the instructions asked upon
the evidence stated therein, and scarcely admits
of abbreviation. It is as follows:
"The plaintiff, farther to maintain and prove
the issue on his side, then gave in evidence, by
competent witnesses, facts tending to prove
that the said Richard N. Barry had attained
the full age of twenty-one years' on the four-
teenth day of Beptember, 1S31; and that In
the month of November, 1831, the said de-
fendant, who was the mother of the said
Richard, did assert and declare that said
Richard rvas bom on the fourteenth day of
September, 1810; and that she did assert to
Dr. McWilliams, a competent and credible wit-
ness, who deposed to said facts, and who was
the accoucheur attending on her at the period of
the birth of her said son, that such birth act-
ually occurred on the said fourteenth of Sep-
tember, 1810, and applied to said Dr. McWil-
liams to give a certiflcate and deposition the
■aid day was the true date of the birth; and
thereupon the counsel for tbe plaintiff requested
Barry was of full age, and above the age o
twentpr-one years at the time of the execution
of said deed to said Wallach, or if the de-
fendant shall have tailed to satisfy the jury
from the evidence that said Barry was, at the
■aid date, an infant under twenty-one years,
that then tite plaintiff is entitled to recover.
"2. Or if the jury shall believe, from the
■aid evidence, that if said Richard was under
age at the time of the execution of said deed,
that he did, after his arrival at age, voluntarily
and deliberately recognize the same aa an act-
ual conveyance of his right, or during a pe-
riod of leveral months acquiesce ' "
minori^ of the grantor.
"3. lliat the said deed from the said Rich-
ard N. Barry to the defendant, being made to
b«r with full notice of said previous deed to
• polst, S Kenb C«ni. aee, 31.
' said Wallach, and Including other and valiiaU*
property, is not so inconsistent with said first
deed as to amount to a disaSirmanoe of ths
•••*. That, from the relative position ('70
of the parties to said deed to defendant, at and
previous to its execution, and from the circum-
stance attending it, the jury may infer that the
same was fraudulent and void.
"6. That if the lessors of plaintiff were in-
duced, by tbe acta and deefarations of said
defendant, to give a full consideration for said
deed to Wallach, and to accept said deed aa a
full and only security for the debt bona fide due
to them, and property bona (ide advanced by
them, and to believe that the said security was
valid and effective, that then It is not compe-
tent for said defendant in this action to ques-
tion or deny the title of said plaintiff under
Biiid deed, whether the said acts and declara-
tions were made fraudulently, and for the pur-
pose of practicing deception, or whether said
defendant, from any cause, willfully miarepre-
sented the truth.
"Whereupon, the court gave the first of the
aaid iustructions so pray^ as aforesaid, uhl
refused to give the others.
'To which refusal the counsel for the plaintiff
excepted."
The firBt instruction, being given by the
court, is of course excluded from our considera-
tion on the present writ of error. The second
instruction is objectionable on several accounta.
In the first place, it assumes, as matter ot
tion by a person after hia arrival at age, <
actual oanveyanee of his right during his dod-
age, amounts to a confirmation of such convey-
ance. In the next place, that a mere acquies-
cence in the same conveyance, without objec-
tion, for several months after his arrival at
age, Is also a confirmation of it. In our judg-
ment, neither proposition is maintainable. T6e
mere recognition of the fact that a conveyance
has been made, is not, per se, proof of a confir-
mation of it. Lord Ellcnborough, In Raylia r.
Dineley, 3 M. & Selw. 482, was of opinion that
an act of as high solemnity as the original
act was necessary to a confirmation. "We
cannot (said he) surrender the interests of tha
infant into such hands ai he may chance to
get. It appears to me that we should be doing
so in this case (that of a deed), unless we re-
quired the act after full age to be of as gre&t
a solemnity as the original Instrument." With-
out undertaking to apply this doctrine to ita
full extent, and admitting that acU *in [*7«
pais may amount tu a confirmation of a deed,
still we are of opinion that these acts should
be of such a solemn and unequivocal nature oa
to establish a clear intention to confirm the
deed, after a full knowledge that it was void-
able.* A fortiori, mere acquiescence, uncoupled
with any acts demunstrative of on intent to
confirm it, would be insufficfent tor the pur-
pose. In Jackson v. Carpenter, II Johns. IL
S12, 543, the court held that an acquiescence bj
the grantor in a conveyance made during his
infancy, for eleven years after ha came of
age, did not amount to a conRrinatius of
2.- -8es Boston Bank v. Chambsrlln, IS Haaa,
Bap. 330.
PaUra lO.
ISN
Tbm Lbssh or Tuaca & Thohfsou t. Ha«H,Aini.
Ihit eoDvejanee; that some pMlUvfl set was
neceudr;, evincing his awent to th« eonvey-
•nee. In Aiutin r. Patton, H Serg. & Rawle.
Ill, the court held that to constitute a confir-
mttioa of a conveyance or contract by an in-
fant, after he arrivn of age, there muat be
lOme distinct act, bj which he either receivea
a beneSt from the contract after he arrives at
age, or doea some act of express ratiticntion.
There is much good sense in these decisions,
and they are indispensable to a just support of
the rights of infanta according to tbs oommon
la*'. Besides, in the present cnae, as Btirry
was In possession of the premises during the
wMe period until the execution of his deed
to Mrs. Moreland, there was no evidence to
Justify the jury in drawing any inference of
any intentional acquiescence In the validity of
tbf defd to Wallacb.
Tlie third instruction ia, for tbe reasons ai-
ready stated, unmaintainable. The deed to
Ura. Jloreland contains a conveyance of the
»*ry land in controversy, with a warranty of
the title against alJ persons clniming under him
(Barry) and a covenant that he haJ good right
aril title to convey the same, and, therefore, is a
positive disaffirmance of the fonner deed.
Tlie fourth instruction proceeds upon the
■opposition that if the deed to Mrs. Moreland
wns fraudulent between the parties to it, it was
utterly void, and not merely voidable. But it
h clear, that between the parties it would be
iiinding, and avaJIable; however, as to the
prrsoDS whom it was intended to defraud, it
night be voidable. Even if it was made for
the VBrj purpose of defeating the conveyance
(o Wallach, and was a roere contrivance for
IT*) 'this purpose, it was still an act compe-
tent to be done by Rarry, and amounted to a
disaffirmance of the conveyance to Wallach.
In many cases, the disalbrmunce of a deed nisde
during infancy, is a fraud upon the othor party.
Rilt this has never been held sufficient to avoid
the di<effirinance, for it would othiTwise take
away the very protection which the law intends
to throw' around him to guard him from the ef-
Ircts of his folly, rashness, and misconduct.
In Sanderson v. Marr, 1 H. Bl. T5, it was
beld that a warrant of attorney, given by an
larsal. although there appeared circumstances
of (raud on his part, was utterly void, even
though the application was made to the equity
■ide of the court, to set aside a judgment
Founiled on it. Bo in Conroe v. Birdsall, 1
Jobas. Cas. 127, a bond made by an infant,
■ho declared at the time that he was of age,
«aa held void, notwithstanding his fraudulent
deeUration; for the court said that a diiferent
decision would endanger all the rights of in'
fanta A similar doctrme was held by the court
in Austin v. Fatton, II Serg. t Rawie, 300, Sin.
Indeed, the aame doctrine ia to be found af-
Inned more than a century and ■ half ago, in
Johnson r. Pie, I Lev. ISOj S. C 1 Sid. 25B; I
Sebb. 095, 913.'
But what are the facts, on which the instruc-
tion relies as proof of the deed to Mrs, More-
land being fraudulent and void! They are
"^he relative positions of the parties to said
d«ed, at and previous to its execution:" that is
la say, the relation of mother and son; and the
I. — Bee Bac. Abr. Inhnej and Ac<, H: 3 Kent,
^n. Uet. 31.
fact that ihe had then instituted a suit against
him, and arrested him, and held him to ball, as
stated in the evidence; and "from the drcam-
stancps attending the execution of it;" that U
to say, that Mrs. Moreland was Informed by
Barry, before his deed to her, that he had M
conveyed the said property to Wallach, and
that subeequcntly, and with such knowledge,
she prevailed on Barry to execute to her tlia
same conveyancs. Now, certainly, these facta,
alone, could not justly authorise ft condualon
that the conveyance to Mrs. Moreland was
fraudulent and void, for she might be a bona
fide creditor of her son. And the consideration
averred in that conveyance showed her to be a
creditor, if it wac truly stated (and there
•was no evidenoe to contradict it), and [*78
If she was a creditor, then she had a legal
right to sue her son, and there was no fraud in
prevailing on him to give a deed to satisfy that
debt. It ia probable that the instruction was
designed to cover all tbe other facrts stated in
the bill of exceptions, though in its actual
terms it does not seem to comprehend them.
But, if it did, we are of opinion that the jury
would not have been Justified in inferring thai
the deed was fraudulent and void. In the Drst
place, the procEediugs of the Orphans' Court
may, for aught that appears, have been in good
faith; and under an innocent mistake of a year
of the actual age of Barry. In the next place,
if not so, still the mother and son were not es-
topped in any other proceeding to set up the
knowledge of Barry, whatever might have been
the case as to the parties and property involved
in tliat proceeding. In the next place, there
is not the slightest proof that these proceedinj:s
hnd, at the time, any referenct to, or intended
operation upon the subsequent deed made to
Wallach; or that Mrs. Moreland was party to,
or assisted in, the negotiations or dec In nit inns
on which the deed to Wallach was founded.
Certainly, without some proofs of this sort, it
would he going too far to assert that the jury
might infer that the deed to Mrs. Moreland was
fraudulent. Fraud is not presumed either as a
matter of law or fact, unless under cireum.
stances not fairly ausceptible of any other in-
The fifth instruction was properly refused by
the court, for tbe plain reason that thi^re was
no evidence In the case of any acts or declara-
tions by Mrs. Moreland to the effect therein
stated. It was, therefore, the common ease of
an instruction aaked upon a mere hypovhetical
statement, ultra the evidence.
The third bill of exceptions is as follows:
"The court having refused the Zd, 3d, 4th,
and 5th instructions prayed by the plaintiffs,
and the counsel, in opening his case to the jury,
contending that the qiieHlions presented by the
said instructions were open to the consideration
of the jury, the counsel for the defendant
thereupon prayed the court to instruct the jurv.
that it, from the evidence so as aforesaid given
to the jury and stated in tlie prayers for the
said innt ructions, they should be of opinion that
the aaiJ llichard was under *the age of ['TO
twen'v-one years at the time he made his deed
as iM.rr.Miid to (he said Ricliard Wallach, under
Wh<jm the plaiiitifTB claim their title in this
ease, and that at the time he made his deed as
hereinbefore mentioned to the defendant, he was
23 tfta
SUIVBUB COUBT or THB UXTIKD STATIia.
IS36
it tnll apf,. thiit fuch last-men ti on ed deed wu
I iliBHlIirnmiice of his preceding deed to bim,
Lhe said Richard Wnllncli. and that in that case
the jur; ought to Rnd their verdict for the de-
fendant, and that the evidence upon which the
id, 3d, ifh, and Mh instructione, were pmyed
iiy the plpiiitilf as aforesaid, which evidence i«
set fortli in Llie instructions so prayed, is not
comprtcnt in law to authorize the jury to find
a verdict for the plaintiff upon «ny of the
;(V0unda or for any of the reasons set forth in
tlie said prayers, or to authorize then to find a
verdict fnr the plaJntilT, if they should be of
opinion tliat tlie said Richard Barry wai under
(lie age of twenty-one .vearg at the time he
made iiis deed aa aforesnid to the said Richard
Wftllnch.
''\^'ilich Instruction tlie court gave as prayed,
nnd the cuiiiiBel for the plaintiff excepted there-
to."
It Is unnecessary to do more than to state
that the bill of exei-ptioiii is completely dis-
posed of by the considerations already men-
tioned. It contain! no more than the converse
of the propositions stated in the sccnncf liill of
exceptions, and the reassert ion of the instruc-
tion given by the court in the first hill of ex-
ceptions.
Upon the whole, it i* the opinion of the court
that the judgment of the Circuit Court ought
to b« alDnocd with coita.
SAMUEL SWARTWOXJT.
iks of ■[rup of BUgar-eni>e were Im-
o port ol New York, anij the ajieiit of
otfercd to vnler thrm. aud bond tbe
_ ;tv
bODJs were e1vr>o at the mte ot tbree cents por
pound. The conHlgae* refused to give tbe iHtDils
the possession of the collector for a loD|t time, by
trial ot the cause, evitlcucc was otTercd. and rejccl-
pd by the court, lo show Ihsl the Importer was not
al>le (0 give boads for the blgtaer duty : but this
luHblllty wne not niiule ktiowa to the collector m
the time thej oir-TeJ to make the entry. Tlic
"■ r liepar- ■ ■■ -" -'- --•■-"—•
turn II
vilorr-i
legol r
I the
duties v
rata, tbe sirup was delivered to the owner.
An action was Instituted agnlnRt llie i-uilertor, to
recover dnmnL-i' ''>r the Ions suslnlnr-d Uy llic Ar-
tf rIorBlloD ot tbe Birup, and a lenJicL In confuiui
Ity with the chiii^e ot the (-uurt. was Klvim tor
The Circuit Tourt iii'operl; rejected tbe evidence
o( the plalntir-' ■--■■■■-- -- -- - ■-— ■ ■
The Getretnry of Ibe Treusiir.v la boun<I by the
law ; and »lthoL>eli In the eicrclae ot bis discretion
be may adopt nr'i'i^xnry fDrms and modes of rIv-
tn^ effect to Ibe law, yet, neither be nor those who
NOTI.— As to wbst
Ciry and ot Isw for tl
■ S. !&».
S»4
act nnder blm, can dispense with, ar slter any of
Its provlalODb, It wou'd 1« s tnoit ditnKeroua prin-
ciple to eitibllil) tbat the arts of s mlnlMprial
oincer. when done In good faltb. hnwever lujuilcmt
to priTSte rlfihlB, and unsupported by law, should
alTord no ground for legnl redress.
here a mlnlilerlil otllcer seta In good faltb. be
■ - - ;es for an ■ ■
D exemplary damsEi
■ re clearly anilni
■Iber
imptlon.
d possessloD of
paid, or sccur-v)
The collecto. ..„ ^
Imported goods until the duties are paid, or sciui
to lie paid! as the Ian recinli-ea. Hut. if be i<bsll .
tsiD posncsBlon of (he goods, and retuse to dellvet
them after the duties ihall be paid, or bond -UeL
or tendered, for the proper rata of dutk-s. lie l>
liable for the damages wbicb may be sustained by
A coDit may not only preseat the fnrla proved.
In their charge to tbe Jury, but glie tbeir ouloloa,
as to those tacts, (or the conildMaili-- -' •"- •— -
.tlOQ of the Jury,
by'"the"i»urt should be ■)
the Jury free la the ■
— - -— . isde dia.
tinctly to undcrstanil that the Instructloa was not
governeil : liut as a mert oplnlOD, as to the facts,
and to which they should glTe no more welgbt than
It was entitled to.
The (-
a of every charge must rtenead
ilosi used by the court; nnd. of
aid. from adjudicated caios, can
right to dpmand a .
the rj)te of flficen per cent, ad valoi-ei
plalntllTa were nnder no obllgatloi
tbe defendant
. bad no | 'Si
delendsnl objected to the proceeding by writ Of
prror. alleclng lliat. as the Jury hud found for tbe
plaintiffs In the Circuit Court, the prui»T murse
would have been to move the court for a new trial,
on (tie ground of the Insiifflflency of tbe dainnaes;
that g
n sppllcatlon t
... _ ...._, xlun tor .
•luesllon no* mnde on this writ
01 error. ia substantially a motloo (or a new trial,
seem not to lie well founded. The amount of
damSKes found by tbe Jury are aiily refcired to, >s
abuwlng that they consider their verdict aa coa-
by an otRrer who shnll l)e held rpxwnRllilp In dum-
Bgcs for lllegsl act-i done und.T lustvurtiont of a
superior: but. aa the f-nvernmBnt It. mirh cnn.« !■
hound to Indemnify t
eventual hardship.
Yorlt.
This action was comtnpnced by lhe pinintilts
in error, in the Superior Court of the city of
N'ew Yori.-, and on the stiggestion of the de-
fendant that the suit was instituted Kiniintt
him for acts done by him under the revenue
laws, aa collector for the district of the city of
N'ew Yori;, and prnvins that the same should
be retnoved to the Circuit Court of the llniteit
States for the Southern District of New Yori:,
the cause was so removed to October Term.
18J3.
The derlaration was in trover for certala
casks of sirup of augarcnne.
Special counte tvpre added, setting forth that
the plaintiffs had imported certuin caska ol
sirup of sugar-cane, on which the dutj[ was
l!fteen per cent- ad vnloremj that the plaintiff*
were ready and willing, and olfcri-d to enter
Peiera l«.
im
Tkact bt al. t. Svunwotrr.
«1
tha jfrvvl* «t tb« 1(^1 n(« of dut7, and to gtre
bonds accordingly, and to do every act ni'ivs-
wr; to making such entry. Nevertheless, the
dcfnidant. although he declared himself satis-
Gid with the eufficiency of the offer or tender
of the plaintifTa, necpt as to the amount of
duties, for which be required bonds in a much
larger amount, over three cents per pound, for
e*erj pound of said sirup; and although de-
Bl'J fendant 'then waived any farther tender,
nevertheless he refused to allovr ptaintifTs to
enter and seenre the duties on the «iriip at the
rate required by taw, and refused to deliver the
sirup for a long time, over eighteen months,
when it was delivered upon payment of the
dntiM, at flftoen per cent, ad valorem; where-
by plaintilTs were damaged by the deterioration
o? the property, etc., stating the damage spe-
cially. Th« defendant pleaded the general is-
On the trial, it vai proved that the goodi
were consigned by phiritiffs to one F, A- Tracy,
of Kew York, to bpII for plaintifls. That F.
A. Tracy, by hia attorney, J. S. Carpenter, the
witness, offered to enter the goods shortly after
the arrival, at fifteen per cent, ad valorem.
The collector taid he had instructiuns from
(lie department not to permit the entry at [eaa
than three cents per pound. The witness adds.
"he Baid be would permit the entry at fifteen
per cent, ad valorem, but should require bonds
at three cents per pound."
Some time after this, Balestler, one of the
plaintiffs, arrived in this country, and he went
to the collector in company with the witness,
E. A. Weeks, and then delivered him the letter
set out in the bill of exceptions, making an
offer of bonds at fifteen per cent, ad valorem,
inquiring wlielber a format tender of ■ bond or
bonds as aforesaid was required. He exhibited
the bills of lading, invoices, etc The col-
lertor said "he could not act, he could not per-
mit him to enter the goods upon the term* and
at the rate of duty mentioned in the letter, be-
cause It was contrary to instructions from the
department." "The collector did not refuse
an entry to t^ made, but insisted that the goods
should pay a higher rate of duty."
It appeared that the duties demanded were
equal, if not greater than the value of the
goods; the conEigiiee would not bond them,
nnd plaintiffs offered to prove that they were
unable to furnish bonds at the rate demanded
by the collector.
The goods were put in S public store, and
renukined there a long time; they were finally
delivered to the plaintilfs on their bonds, at tlie
rate of fifteen per oi-nt. ad valorem. "The de-
partment" having in the mean time changed
lis views of the law of July 14, 1B32. Sec. 17.
SS*] 'After the foregoing evidence had been
^ven, tlie pi:iin'i'''s procured several witnesses
U> pro>c t!:al toe sirup was worth from eight
to ten cents per gallon less when given up by
Um collector than when the bonds were offered,
ia eonsequence of necetsarily growing acid by
■taoding.
The court charged the jury "that admitting
the mercbandine in question to be subject to a
dnty of cmly fifteen per cent, ad valorem, yet
the circuDwtanoea under which the dispute
about the rate of duty arose, ought not to sub-
)eet the collector to the payment of more than
nominal damages; that the collector waa pnr>
suing what he believed to be his duty, and
whatever injury the plaintiffs sustained in not
receiving their goods at an earlier day, grew
out of their own conduct, in not entering the
goods in the manner olTered by the collector,
at fifteen per cent, ad valorem, taking the
bond, however, to secure the paymnnC of three
cents ^r pound; merely placing the case In a
situation to have the question judicially decided
as to the rate of duty; no intimation being
given that it would occasion any inconvenience
to the plaintiffs, to give the bond so required
by the collector." To this charge the plaintilTs'
counsel excepted; and the jury found for
flain tiffs six cents. The plaintiffs prosecuted
his writ of error.
The case was submitted to the court on
printed arguments hy Mr. Sedgwick for the
ptainlifFa in error, and by Mr. Price, District
Attorney of the United States for the South-
ern District of New York, for the defendant.
Mr. Sedgwick, for the plaintilT, presented two
points for the consideration of the court:
Ist. The plaintiffs had a goad cause of ac
tion against the collector for damages, actually
austained.
2d. The Judge erred in charging the jury aa
to the rights of the plaintiff.
As to the flrat point, it was argued that the
doubts which prevailed as to the responsibility
of the collector for wrong done, in such a case
as the present, no lon;;er existed. The great
principle is slated by Chief Justice Spencer, in
Bortlett V. Cro/ier, 15 Johns, 254, "whenever
an individual has sustained an injury by the
misfeas.iiice or nonfeasance of an ollicer who
•acta, or omits to act, contrary to his ['S*
duty, the law affords redress." Cited also, 8
Wentworth, i6-i; Olney v. Arnold, 3 Dalt.
308. In Conard v. The Pacific Ins. Company,
6 Peters. 281, the precise doctrine contonJed
for is laid down by the court, that the posses-
sion of the collector it a mixed possession, for
the liericfit of the owner and the government,
and "that when the duties are paid or ten-
dered, if the collector retains the goods, it ia a
Tlicrc is nothing in this cane which should
protect the collector from the operation of this
rule. The juilge seems to suppose that the
plaintiffs unnecessarily involved themselves in
the situation in which they were placed; that
they might have given bonds for the duties aa
claimed. But if tliis were bo, still they hud R
right to refuse giving bunds for more than the
actual duties; and they had, on tendering such
bonds, a full right to the goods; and tlio de-
tentic>n of them by tbs oollector, afterwarda,
made him responsible.
But the facts of the case do not authorize
any charge against the plaintiffs. An offer
was made of the actual duties; and it was, in
the opinion of the attorney of the consignee,
doubtful whether the goods would have sold
for the duties claimed. Evidence was offered
to prove the inability of the plaintiffs to pro-
cure bonda for the amount of the claimed
duties, but this was not permitted. The com-
munication of this would not have induced the
collector to change his course.
It is said the loss of the plaintiffs aroM from
not bavins entered the gooda in the manna
S5»
H
SuraSUI COUKT OF THK UlTITB) STATES.
offered by the collector, at fifteen per cent, nd
valorem; and giving bonds at the higher duty.
But the ofler is denind, and if it hud been
made, it would not diminish the plaintilfs'
claims in this case. But the ofTer was to allow
•n entry at fifteen per cent, when bonds for
three cents per pound were insiated upon;
and this ia tbe grievance, for the goodi could
not be obtained until these bonda were after-
wards giveiL But suppose a party under auch
circumstances could give a bond; how is it
pobjible that a man could be bound in law to
give a bond which the law says ba ought not
ta pay T If lawyerm can surmount this para-
dox, merchanls would be vei7 apt to find, in
the uncertainty of all legal disputes, a sub-
SS*] Btantial reason against 'signing a bond,
and trusting to law for avoiding it afterwards.
It haa l>cen ahown that the plaintilTs had a clear
cause of action to recover their actual dam-
ages; which, in point of fact, amounted to a
laue aum of money.
fl. The next inquiry is, whether his honor
the judge misdirected tbe jury.
It is submitted to the recollection of the
judge who tried this cause, that after he ex-
pressed an opinion that the esse of the plain-
tiffs was one of damnum absque injuria, as the
bonds might have been given, an oiler wa4
made to prove inability; which was rejected
by the court, no notice of this having been
S'veo to the collector. The jury were, tliere-
<re, not addressed by the counsel on the ques-
tion of damages.
The court will, however, look only at the
bill of exceptions.
The inquiry la, whether tbe exception here
is as to matter of law or matter of fact. Ex-
ceptions are doubtlesa confined to mntters of
law, and extend "to every case in which the
judge, in his directions or deciaiuns. misstates
the law." 3 Black. Com. 372. The question
on this point ought to be decided with refer-
ence to tlie impression which the charce waa
calculated to make upon the juryj and if they
gave their verdict in compliance with what
they had reason to suppose the judge charged
the law to be, and in conneiiuence of tbat
charge, the verdict ought to be act aside, 'i'he
judge charged the jury, that the circumsLanccB
under which the diapute about the rate of duty
arose, ought not to subject the collector to the
payment of more than nominal damages.
It might be supposed that the judge, by ad-
of nominal d
nitting the case to be
plainly intimated tbat the law was witli the
plaintiffs. But it ia submitted that the idea
which the jury must have received, was that
the right of the case, in point of law, waa with
the defendant. Tliey always regard a verdict
of ail cents as mere matter of form; and so it
is In point of fact, unless it be a case taken out
ot the general lule as to coats by a BpocI]iI pro-
vision of the statute. The judge declared that
the plaintiffs ought not to recover, under thi.'
circumstances of the caae. The jury must
•■■'-■■.on
oat
86*] assuredly 'did, in point of fact, render
their verdict, because they considered them-
selvea bound to do so by the charge of the
pursuing what he believed to be his duty.
Thia was a good reason why we shoulil not re-
ceive smart-money, or anything beyond our act-
ual damagea; but the jury must have siippoaed
that this circumstance, taken in connection
with the fact that if the bonds had been given
for tbe amount claimed by the collector, the
obligors might have defended themselri'i
against the suit on those bonda, constituted a
good defense in thia suit against the recovery
of anything but nominal damagea. Both tfavac
circumstances, especially that relating to the
qua animo of the collector, were such aa
would naturally give rise to a question of lav
which very nnturally and necessarily presents
itself, viz., dors the law in such a case allow a
recovery ogainat an innocent collector! The
jury niii^t have seen that this was a qufstion of
law; and whon the judge said the plaiatiffl
ought not to recover, it waa equivalent to say-
ing that they ought not in judgment of taw to
If we consider the proper province of the
court and jury respectively in this case, the
error of the charge will be apparent.
The questions for the court were, Ist, whether
tbe bona fides of the collector was a defense.
2d. Whether tbe right of an obligor on such
bonds to contest the duties, makes it the duly
of the party to give the bond; or in case of
his omission, deprives him of his action. 3d.
The rule of damages, viz.: Whether we were
to recover for any difference in tbe market at
the respective periods of tbe offer to the brirtd.
and tbe delivery of the property, or only for
tbe deterioration and neceaaary lealiage.
The qutation for the jury was, what was the
amount of damages according to the rule
which the court should lay down. In con»:c-
quence of the opinion of the judge, cxpresaod
to the counsel, they did not sum up. The
court told the jury they ought to Tmd nominal
damages; in abort, that was their rule of d:iin-
ages, and of courae, they had notbing to in-
Siire about; and so they understood it, for
ey rendered their verdict iniuieiiintcly.
It appi'ars to follow tbat the charge of the
judge wna, in point 'of fact, what the [*8 7
jury undeiiitood it to be, a charge hb to the law;
and not as it is now interpreted, an opi'on
upon the facts of the case.
But whether it was so in fact, or was so un-
derstood by tJie jury, to be a charge oa the law,
ither case, the verdict and judgment muat
be n
Lside.
Mr. Price, for the defendant, contended that
the only question in the caae, as it ia preaentod
by the bill of exceptiona, is the relevancy .»f
certain evidence. The plaintitls hnd not inad«
a case in the declaration in which tbe evidenc«
would apply; and it was, therefore, imperti-
neiit, and was properly rejected. It is, how.
ever, agreed that the charge of the court shall
After an examination of tbe pleadings, with
a view to show that the charge of tbe court
uaa entirely correct on the questions raised b/
them, as well as on the facts of the case, h«
argued that tbe judgment in favor of the
plaintiffs ought not to be reversed.
L Tbe plaintiff* had already b verdiet In
Petcra lO.
Tbacv et al. v. Swastwout.
n
tbcir 1±Tatt and It Is not competent for them '
upon ft writ of error to dJBturb k verdict in
which the derend.tnt acquiesces.
e. The evidence offered by tlie plaititilTa was
properly overruled by the court, ftod projierly
3. The charge of the Circuit Court was in
every respect correct.
4. If the cause should be remanded tor
another trial, tliere is nothing spiiarent on the
record which would place the plainliffs in a
more favorable position than they held on the
Grst trial.
On the first point, that aa the plaintiffs have
had a verdict in their favor, it is not competent
to them to proancute a writ of error, it was
argued that tliis is ebscntially an application for
a new trial. Having already obtained a ver-
dict, no question on the amount of the verdict
can be raised upon a writ of error. That was
exclusively a. question for the court below. If
the damages assessed by the jury were insuffi-
cient, an application should have been made for
a new trial. The refusal of the court to grant
thi^ ia not the subject of a writ of error (5
88*] Cranch, II, 187; 4 Wheat, *213], and in
the Circuit Court, a new trial was moved for
and refused- Will this court correct the error
of the Circuit Court in refusing a new trial 1
An appellate court will render auch a judgment
OS ouglit to bavs been rendered by the inferior
court. If the Circuit Court would not allow
the plaintilla to speculate on the chance of
heavier d^imagea, this court will not do it.
A nt'W trial ia never granted for inadequate
damages, but under special circumstances; and
Still Ici^s wiU this court do what will be entirety
equivateut to a new trial, by awarding a venire
da novo. Cited on thia point, Graham on New
Triala, 411, 450; Ilayward v. Morton, 2 Strange,
MO; Barker v. Diicie, 2 Strange, 1150; Beard-
man V. Orrington, 2 Wills, 244.
The jury, in assessing the damages, must
have taken into consideration the amount of the
injury wliicb the plaintiffs had sustained, by
reason of the illegal conduct of thu defendant.
The counsel for the plaintiff admitted, on the
trial, tfaat the defendant acted in good faith,
and under iiutruetions from the Treosury De-
putment. It was, therefore, a case in which
the jury were limited to damages actually bus.
tained, fully proved to them; and they could
M>t give damages as a penalty.
2d.. The evidence offered by the plaintiffs
was properly overruled. No notice of the dif-
ficulty or inconvenience to the pIsintifTs, in en-
tering into the bonds, was given to the collector.
Gnch evidence could only be admitted under
a special conaent, if admitted at all- A party
U not t«> be brought into court to answer tu
matter* of which he is not apprised, of which
be haa not had notice that it was incumbent up-
on him to inform himself.
3d and 4th. The charge of the court was cor-
rect, and if the cause shall be remanded, there
ia nothing in the record which will place the
plaintiff in a better position than on the former
trial.
Upon these points the counael tor the defend-
ants urged that, on a new trial, no other reault
than t£at which hod occurred could be ex-
pected. If the evidence offered was properly
rcfuaed, tbere would be an end of the question
■ Ii.ed.
between the parties, and the verdict would
stand. If it was to be admitted, as the charge
of the court was correct, no other result would
follow.
The liability of the goods for duties U not
denied; the rate of Mhe duties payable ['89
was the only quostion, and had the plaintiffs
accepted the propuBUl oF the collector to givs
bi>nd9 for the duty claimed, proti'sting against
the amount of the claim, no injury would have
been au:feved. They would have had posses-
sion of their goods; and as the claim for the
higher duties was afterwards abandoned, no
kiss would have arisen.
The plaintiffa cannot, under any circuinstan-
ces, sustain a recovery in this action. They
have not shown, in themselves, possession or
property in the ^ooda. The collector was law-
fully in poBBCBsion, under the laws of ttte
United States; and he had a right to retain pos-
session until he was relieved of the custody by
the party claiming the same, and having con-
formed to the law. He did no act while in pos-
SGBsion, which would render him liable as a
trespasser. His poEscsgion was that of a bailee;
and a bailee is never reaponaible for the natural
and inevitable deterioration of the subject
bailed. But be was not even a bailee, but the
servant of the government, bound to execute
legal orders. Acting in good faith, and under
orders, huw can be be liable pi^iannallyT
That question ia easily anawcicd. I. ffc had
the pussca!>ion lawfully in the first inslnnce; we
say, merely as the servant of tlie government.
2. He has done no intermediate act which
could retrospectively vary the character of his
possession. The doctrine of trespass ab initio
la a doctrine ariaing out of equitable principles;
and was intended to give a party advantages
which he could not have under the strict tech-
nical rules of pleading. It was intended to per-
mit a party under the ^neral form oF a decla-
ration in trespass, to ^ive evidence of mnttera
which it would be difficult or bazai'dous to
plead specially. Thus far, it is a substitute for
a special action on the cose. But let it be re-
membered that it is not pretended that the
plaintiffa, in thia instance, should have brought
their action in trespass; on the contrary, it is
admitted that the action on the case is their
only remedy; but there is the further consider-
ation that in an action of trespass, the lawful
Eossessiou of the defendant is a prerequisite,
efore he can be made a trespasser, ab initio.
It must be the possession of the principal, and
not the possession of the servant.
'If a man directs his servant to take [*00
my goods, and the servant seizes them, it is
clear that they are both trespassers; but if
goods are delivered to a man to keep, and be
destroys these goods, he may be a trespasser
bj reution; but, if the act was committed by
hts servant, without his order or authority, it is
the direct trespa.ss of the servant, who alone !■
liable. If goods are delivered to the master to
keep, and they are kept so negligently that the
goods are lost, the master Is responsible, in soma
form of action, fur bla negligence. If the
master intrusted the cuatody of the goods to
the servant, and they were lost through the
negligence of the servant, the master must be
called on for redress.
The collector la a mere servant or olcrk, and
S51
SttPUQia CouBT OF THX UniTD 8tt.n
ettiaat be renJercd Ifnble to a third person for
snj negligcncr or omission for wliicli any othtr
■errant or clerk would not be rcspimailile. The
■at organizing the Treasury Department, Sep'
tember 2, 1TB9, would aeetn to put tliia question
out of all doubt. It is there made the duty of
the Secretary of the Treasury "to superintend
the eollectian of the revenue;" thus, in tlie
broadeat terms, subjecting every person con-
nected with the collection of the revenue tc
the supervision and control of tlic head of the
Treasury Department, And here let it be r«-
ollected that the collector was, in this instance,
acting undi-r the instructions of the Treasury
Department.
If anything farther were wanting to show the
merely subordinate character of the collector,
it la made manifest from the circumstance that
it was found necessary expressly to autlioriie
by law the collector to act through a deputy
(Act to regulate the collection of duties, etc.
March 2, ITSQ, 3 Laws U. S., 157, sec. 22}, and
bj a subsequent law (Act of March 3, 1S17,
•eo. 7], s collector can only appoint deputies
with the approbation of the Secretary of the
Treasury.
The collector cannot appoint inspectors oF
the customs without the approbation of the
Treasury Department [Act farther to provide
for the collection of duties, etc., March 3d, 1816,
sec 3), and "the number and compensation of
clerks to be employed" in his office may be
limited and paid by the Secretary of the TreaS'
<axy. Act of March 7, 1822, farther to estab-
lish the compensation of officers of the customs,
etc., sec. 16.
• 1*] 'Hence the law does not regard him as
the agent of the government, hut as a mere sub-
altern, or servant of the Secretary of the Treas-
ury, who is thp proper and immediate a(;ent of
the law "to superintend the collection of the
In reply to some points of the opening argu-
ment of tlu plaintiSs' counsel, it was submitted
to the court that the decision in Dartlett v. Cro-
■ier, 16 Johns. Rep. 254 was reversed; and the
opinion of Chancellor Kent was adopted by the
Court of Error of New York. 17 Johns. Rep.
43S. The authority in 8 Wentworth'e Plead-
ing, 462, is directly in conflict with the ease of
the plaintiff in error. Ilie declaration in. that
«ase was against the collector for maliciously
intending to injure the plaintiff by preventing
bla exporting certain goods, etc.
The counsel also referred to Olney v. Arnold,
S Dallas, 308, which do«s not meet the present
0a*e. It ia not pretended but that cases may
ooeuT In which an action may be sustained
Against a collector; but the case of Olney v.
Arnohl dtcidea no principle whatsoever.
It is asked if the the plaintiff was bound to
give bonds which the law did not authorize, and
then set up a defense to a suit on these bonds.
It would be difficult to establish that the law
did not authorise the taking of the bonds. Tlie
condition of the bond to be given under the
09th aection, is always to pay a sum certain, on
the amount of the duties to be ascertained as
due and arising on certain goods, etc. This
■howa tba authority of the collector to take the
bond.
Tha law aays that, to obtain goods imported,
Ibe duties miut be paid in cash, or a bond
S5S
given; and until the judgment ta passfd on tb«
bond, ell errora in the liquidation of the dutie*
may be corrected. 3 Laws U. S., 198, sec 00;
Ex-parte Davenport, S Peters, COI.
Mr. Sedgwick, in reply to the position that
the plalntilTs cannot disturb a verdict in their
favor in which the defendant acquiesces, stated:
If by tills it be meant to aay, as in the author-
ities referred to, that the refusal of a new trial
because against evidence, is not ground for er-
ror, that is not denied. If it be meant to say
that if the judge charges contrary to law, and
plaintiff "rfmvera six cents, when, if a ['98
right charge had been t;iven, he might and
probably would have recovered $3,000, and an
exception be taken, that error cannot be
brought; the proposition is too manifestly er-
roneous to require refutation.
It was stated in the arguments in chief that
it was a paradox to aay "the plaintiffs were
bound to give a bond which the law did not
ftutliorize." This bod been answered by aaying
that the collector was authorized to take tlie
bond, [i<?cau8G the condition in it is to pay du-
ties to be ascertained, etc. This case strongly
exemplifies the unsoundncKs of the argument.
The duties at fifteen per cent, ad valorem
amounted to less than one si.'cth part of the
duties at three cents psr pound. The proposi-
tion of the defendant's counsel is, that na the
collector has a right to require a bond for the
duties to be ascertained, it is what he may esti-
mate the duties to be. In other words, that it
is the same thing for the collector in this case
to demand a bond at three cents per pound, or
at fifteen per cent, ad valur^m.
If this be so, then it would make no differ-
ence if the collector dcmunded a bond for du-
ties one hundred times greater than the real
duties, supposing him to act innocently and by
order of the department.
If the proposition laid down by the defend-
ant's counsel be sound, why would not the col-
lector be equally justified in onaes of malice*
It might lie said the malice cnuld do no harm,
because the Uood is otily for sueh duties as nuiy
be ascerlaincii. The mischief is precisely the
same in both cases.
But to take the present case. The claim of
the collector is matter of substane, and not of
form. It may be ruinous.
It is the duty of the collector to indorse the
estimated amotmt upon the entry. Pie then re-
quires a suflli'ient security; end a bond in &
penal sum sufTicicnt to cover the estimated du-
ties, and generally twice their amount. The
surety, before signing the bond, of course ex-
amini'S the entry to see what lie may be called
ii]>on to prty. Finding that the claim againat
hiin will be for the duties according to (be
principle assumed by the collector, be must de-
cide beforehand to pay them or to contest the
bond. If he pays them, he must take bla chance
of recovering them back. The defendant'*
ciiimsel will not pretend he should be subjected
to Ibis, for 'he says that in that case he [*•>
could not recover them hack. 1!ut lii> must di'-
fFnd to the bond. He cannot do this without
the inconvenience of being denied a credit at
the eustom-liouse during tlic controversy, whicb
may Inst till all his credit is gone.
But it is not necessary to go Ibua far. Th«
owner baa this un^inswerablo objection, that he
Peters lo.
ISSa Tbagy kt al. 1
oiigbt Bot to b« required to give a bond In an '
unmaonable penalty'; aiich a bond, indeed, an
be maj not be able to give. Tlie collt'ctur lins I
■ right to actiul and valid accurity for the
eBLimated duties, and to make it nurc for tVe
amount namt-d on th« penaltj' of the bond. lie
hai a right to require aurelifs, amply able to ■
paj that amount; and thnt is nil. Now Bupp.-iKe
the duties to be in fact $300, he may aak secu-
rity in $t.n00. Suppose, iiisti'ad of this, he
Mtimates the dutitg, without any fault in the
iniporter, and from a wrung nsbiimption a( to
the rate of duties, at (3,000, and demands secu-
ritr in (10,000.
Hr. Justice HcLean delivered the opinion of
the court:
This case is brought into this murt by a writ
of error to the Circuit Court for the Southprn
District of New Yorlt. Tlw suit was pro^ccnti-d
In that court to recover daniLi;^s from the de-
fendant, who. as collector of the euntoma, had
refused to allow the plaintilTs to enter ami re-
teive the payment of the lawful duties, nn cer-
tain ctxks of sirup of susar-cane, which they
had imported into the port of New York.
It il admitted that the law imposed no more
dnty on the nrticle than flftorn per cent, nd
valorem; aitlinugh the collector, acfinK unilifr
the iastructinnH of the Kecrelary of the Trcas-
nry, requiri'd bond for the payment of the above
duty, or, should It be reiuiicd, a duty of thri'c
cents per pound. No b-ind was given, and the
•imp remniiicd in the possession of the collcct-
ot for ■ long time, by which means its value
w»s greatly deteriorated.
The question for eonsiderntlon arises out of
a bill of exceptions, in which tlie evidence Is
stated at lBr)>e, showing tlie quality of the
sirup, the number of gallons iniiwrted, and the
refusal of the defendant to take Iwiid for the
fifteen per cent, ad valorem duty.
It WHS Hdmitted by the counsel of the plain-
**•] tifTs that the defendant 'acted throughout
witb entire good faith, and under instructions
from the Treasury Ue part me lit.
The plaintifTa counsel olTered to prove that
they were unoble to give bonds for duties at
three centa per pound; thou;;h they did not
■tate that fact to the defendant at the time
tbry offered to make the entry.
The eourt overruled thia testimony, and in-
structed the jury "that, adinittin;; the mer-
ehandise in question was only subject to an
td valorem duty of fifteen per cent., yet the
eircu instances under which the dispute about
the mte r-f duties arose. ouRht not to Subject
tbe collector to th« payment of more than nom-
inal dama{,'es; that the collector was pursuing
what he believed to be the true
the law; and whatever injury the plaintiffs
■wy have sustained in not receiving their goods
at an earlier day, grew out of their own con-
duct in not entering the goods in the manner
offered by the collector, at fifteen per cent., ad
valorem, taking the bond, however, to receive
tha payment of three cents per pound, if aueh
ibould be the legal rate of duties demnndable;
■erely placing the case In a situation to have
tbe question judicially decided, as to the rate
ot dnty, no intimation at the time being given
that it would occasion any inconvenience to
tbe plaintilTs to give tbe bond W required by
SwAVTwouT. n
t.lnder this instruction the Jtiry found a ver-
dict for six cents damages and six cents Costs.
'I'liere can be no doubt that the Circuit Court
decided ciirrectly in oieiruiing the evidence of
inability in the pli'lnlilTs to uive the bond de-
mnndpd by the def.'ndant, Tlie matoiiality of
this evidence is not perceived^ and if it hod
Uen material, it ought not to have been re-
ceived, unless tbe fact of inability had been
innile known to the defendant at the time the
bund was required.
In the arf;iiment, objections were taait hf
the defendant's cuun°et to the sulliciency of the
counts in the declaration, but these do not neo-
e->»irily come before us in the present poatura
uf the case; and should the judgment of tha
Circuit Court be reversed and the cause re-
manded fur further proceedings; if the plead-
in;jB be deemed defective, the parties, with the
leave of the Circuit Court, may amend them.
The collector of the customs is a ministerial
officer; he acts 'under the instructions t*9K
of the Secretary of the Treasury, who Is ex-
pressly authorised to give instructions, as to
tlic due enforcement of tbe revenue lawd.
Do these instructions, when not given in ae-
cordanca with the law, afford a justification t,o
the collector, or exonerate him from the pay-
ment of aderjuate damages for an injury result-
ing from his illegal acIsT
The Circuit Court in their charge to the jury,
did not consider these instntclicin.i ns a jii^lilka-
tiou to the defendant; and in this tliey were
unquestionably correct.
The Secretary of the Treasury Is bound by
the law, and althou;;h in the exeicise of his
discretion he may oJopt necessary forms and
modes of giving elTect to the law, yet, neither
he nor those who act under him, con dispense
with, or alter any of its provisions. It would
be a most dangerous principle to establish, that
the acts of a ministerial olficer, when done in
good faith, however injurious to private
rit;hts, and unaupported by law, should afford
no ground for legal redress. The facts of the
case under consideration will forcibly illus-
trate this principle. The importers offer to
comuly with the law by giving bond for the
lawful rate of duties; but the coTlector demands
a bond in a greater amount than the full value
of the cargo. The bond is not given, and the
property i* lost, or its value greatly reduced, in
the hands of the defendant. Where a ministeri'
al ollicer acts in good faith for an injury done,
he is not liable to exemplary damages; but he
can claim no further exemption where bis acta
are clearly against law.
The collector has a ripbt to hold poaaession
ot imported goods until the duties are paid or
secured to be paid, as the law requires. But,
if he shall retain possession of the ^ooda, and
refuse to deliver them after the duties shall be
paid, or bund given, or tendered, for the proper
rate of duties, he is linble for tbe danmget
which may be sustained by this refusal, Ov
the part of the defendant it is insisted that the
charge ot tbe Circuit Court was on the facta of
ilie cose, and was limited to an ezpreaston of
an opinion on those facts, without any direo.
tion as to any matter of law.
A court may not only present the Hcta
proved, in their cliarge 'to the jury, but [•9t
five their opinion m to tboM facta, for the
SUPBEMB COUBI OF THE UxmCD SlATU.
oonalderatlnn of the Jur,v. But, ■« th« jurors
Are the triera of facts, juch an expreaaion of
opinion bj the court should be so guarded as to
lesve tba jury free in the exercise of their own
judgments. Thej should be made distinctlj to
understand tliat the instruction was not given
AS a point of law, bj which thej were to be
governed, but as a mere opinion as to the facts,
and to which thev siiould give no more weight
tlian it was entitled to. And if a fair coDstrue-
tioQ of the charge complaitird of ahatl amount
to no more than this, it is liable to no valid ob-
jection.
The correctness of every charge must depend
upon the phiaacology used by the court; and,
of course, but little aid from adjudicated cases
can be expected in a case like the present.
la 3 Gurr. 1742, a charge of L^rd Camden,
when Chief Justice of the G. B., is given, as
follows: And the said Chief Justice did then
and there declare and deliver his opinion to the
jury, that the said several matters so produced
and proved, on the part of the defendants,
weie not upon the whole ease sufTicient to bar
the action; and with that opinion left the same
to the jury."
This instruction, In the language of Chancel-
lor Kent (12 .Johns. 618), has always been
"^aken and received as a direction in a point
Id the instruction imder consideration thi
eourt say to the jury that, "adinittinjr the mer-
chandise in question Was only subject to an
isd valorem duty of fifteen per cent., yet the
drcumstances under which the dispute about
(he rate of duties arose ought not to subject the
coIEector to the paynu'nt of more than nominal
jamsRcs." "That the collector was pursuing
what be believed to be the true construction of
the law, and whatever injury the nlaintiifs may
have sustained in not receiving their goods at
kn earlier day, grew out of their own conduct
in not entering the goods in the manner offered
by the collector, at fifteen per cent, ad valorem,
taking the bond, however, to secure the pay-
ment o( three cents per pound," etc. This
language seems to be susceptible of but one
construction, and that is, that as the plaintids
refused to give the bond rcouired by the collect-
or, who acted in good faitti, they ought to re-
97'] cover no more "than nominal damages.
That the jury considered this direction as con-
trolling their verdict is clearly shown by the
damages which they assessed. And, indeed, it
Is not perceived how they could have given any
other effect to the charge. It covered the whole
case, and irtust have been received by the jury
as a direction on the hiw of the case. In what
other light could they have considered it. The
eourt did not say that exemplary damages
ought not to be given ; but that, under the facts
and circumstances of the case, no more than
nominal damages should be asacssed. The facts
of the case were clearly eatablishcd, and, indeed,
were not controverted; and the amount of dam-
ages was the only matter for the investigation
of the jury. On this point the jury should have
exercised their own discretion, aided. If neces-
sary, by the opinion of the court in relation to
matters of fact; and oontrolled by thsir direc-
tion, in tnettera of law. But the jury were told,
■a the effect of the whole evidence, that they
•nght to give nominal damages onl^.
The collector, in point of law, bad no ri^
to demand a bond for more than the dutlea at
the rate of flf teen per cent, ad valorem; and tbt
plaintiffs were under no obligation to give bowl
in a greater sum. And the fact of having failed
to give such illegal bond was not a eircun-
stance which ahould have lessened the plafn-
tiffs' damages, nor, in point of law, shoufd the
good faith in which the defendant seems to have
acted, exempt him from compensatory damagea.
In the case of Oreenleaf v. Birth, 9 Peteio.
290, the counsel prayed the court to instmet
the jury that "the evidence was not sufficient |
to prove that the said contract between Nichol' j
son and Greenleaf, on the one part, and W.
Stewart, on the other, had been annulled or
rescinded between the parties, at any time prior
to the execution of the deed by the plaintiff to
Morris and KichoUon in May, 1T9G."
And this court say, "if this instruction be
considered as asking the court to determine on
the effect of the evidence, it was properly re-
fused. It is the province of the jury to
weigh and decide on the sufficiency of the evi-
dence; and from the words of the instruction it
would seem to be conceded there woe some
'evidence of the rescission of the contract, [*98
as the court were asked to instruct the jury
that the evidence was not sufficient to prove tlic
fact. Where there is no evidence tending to
prove a particular fact, the court are bound so
to instruct the jury when requested; but they
cannot legally give ony instruction which shall
take from the jury the right of weighing tlie
evidence, and dcterniiDtng what effect it shall
have. In this view the Circuit Court did not
err in refusing the above instruction."
And again, m the cose of the Chesapeake and
Ohio Canal Company v. Knapp et al. 9 Peters,
567, this court say, "but it is insisted that in
their instruction, the court lay down certain
facts OS proved, which should bave been left lo
the jury. If this objection shall be sustained,
by giving a fair construction to the Inngiudge
of the court, the judgment must be reversed:
for the facta should be left with the jury, whose
peculiar province it is to weigh the evidence
and to say what effect it shall have."
In some cases it may be difficult to determine
whether an instruction was given on the i,i.-i«
or the law of a ease; but where the jury are in-
structed what their verdict should be it !■ A
direction on the effect they should give to tiia
evidence, ond they cannot fail to consider tha
instruction as the law applicable to the tni-la.
This must have been the light in which tlip jury
viewed the charge under consideration; and w*
think it is the true construction of the languag«
used by the court. In their address to the jury
the Circuit Court may have qualified by words
not reported, the sentences contained in the bill
of exceptions; but the legal question arises, aud
must be decided from the face of the bill.
The objection that the proper remedy of tb«
plaintiffs was by a motion for a new trial, Sknd
that the question now made on this writ of er-
ror is substantially a motion for a new trial.
seems not to be well founded. The amount of
damages found by the jury are only referred to
as showing that they considered their verdict aa
oontrolled by the direction of the court. And
this court consider that direction erroneoiM <n
point of law.
ISM
tu'a BciM V. Thb Unitbd Siatib.
1 IneonTcnfence mAy be «xpcri-
It*] enced by sn ofUcer 'wha sball ba held ra-
iponiible in damage* for illegal acts done under
instmetiona of a superior ^ but, aa thn ^ovem-
vmt in such caaei is bound to indemnify the
ulBcer, there can be no eventual hardship.
Tlie judgment of Ibe Circuit Court must be
rivers^, and the cauae remuided ta Uwt court
ba further proceedings.
!••■] 'ANTOINE SOLXARD'8 HSr
THE UNITED STATES,
Spanish land grant.
mrra} of land In MEHOurL
■ (cranted bj the Lleuteanat-UoTcrnor ol
upper i^iilslaua, before tbp TivHty at LoulsJaaa.
trntrmti ; so far ■■ the Innd i>mbraced In the sama
ku not been uld br tbe United atatga. Far the
naotltr of land ao eold. the awnera ot the eonces-
Uaaoon, ilttr ttie aame haa been oEeied for lale.
0?I appeal from the Diatrict Court of tba
United Statea for the District of Miasouri.
A petition was filed on tlie 22d daj of August,
1824, by Antoine Soulard, in the Diatrict Court
tt the United Statea for the District ot Mia-
•oari, for the confirmation of a tract of land
under the authority of the Act of Congreas
^■■sed Hay 26, IS24, entitled "An Act enabling
the elftimaots of lands within the limita of the
State of Miasouri and Territory of Arkansas, to
institute proceedings to try the validity of their
elatina" and stating that on the 26th of April,
ITM, the Lieutenant Qovernor of Upper Loni-
■iana, Don Zenon Trudeau, granted to him, in
emaideration of aerrices rendered by the peti-
tioBer to the Spanish government, ten thou-
aood orpents of land, he being then a resident
of tlie -province, to be locatM on any vacant
lands belonging to the royal domain.
In pursuance of which decree of eoncesalon
and survey the land was located and surveyed
on the River Cnivre, about seventy miles north
of St. Louis, and alMut fifteen miles west of the
Eiver Mississippi. The petition atsted that no
■or* than 2,067 82-100 acres are occupied under
sdverae title, and proved that the title to all
tb« land which bsd not been sold by the United
States should be confirmed, and that he should
be allowed to locate the residue of the grant on
other unsold lands belonging to the United
SUtM.
On the S7th of March, 182B, Julie Soulard,
tW widow, and James Q., Henry Q., Eliza 0.,
and Benjamin Soulard, the children and heirs
of Antonie Soulard, he having died Intestate,
were, on lUiag a petition in the District Court,
tol*] made partlea to the 'cause. After varl'
ons pnxMedJngs In the District Court, the fol-
lowing decree was made:
The cause coming on to be debated and heard
^» the presence of the counsel for the petition-
«• ana of the attorney for the United States
for the District of Uissouri, on the petition,
the answer and the testimony which ia embodied
la tke reoord. It appears that the petition sets
forth, in subatance, that somettme In tlie month
of April, one thouaand Be\-oD hundred and
ninety-aix, Antaine Soulard, the arcc^ttor of thr
present petitioners, being then a ri'sidi'tit of the
province of Upper l<ouisiana, and surveyor-
general of the same under the Spaniab govern-
ment, preaented his petition to the then lieuten
ant governor ot said province, Don Zenon Tru-
deau, praying a grant of a tract ot ten thousand
arpents of land, to be located on any vacant
part of the royal domain. That in compliance
with the said petition, and in order to reinuner
ate the servicea of said petitioner, the aaid Don
Zenon Trudeau, Lieutenant-Governor, did
about the time aforesaid, grant to the a&id pet)
tioner ten thousand arpents of land, and by
said decree ot concession, did order the said
quantity to be located and surveyed on any
part of the royal domain in said province, at
the election of said petitioner. That the said
Suonti^ of land was, afterwarda, on the twcn-
ieth day at February, one thouaand eight hun-
dred and four, aurveyed and located by the dep-
uty-aurveyor, Don Santiago Rankin, on a va-
cant part of the public land, situate about fif-
teen milee weat of the Missisaippi River, and
seventy mllea north ot the town of St. Louis,
on a branch of the River Cuivre, and bounded
aa follows: Commencing at a point in the north-
east quarter of section twenty-five, townahlp
flity-one north, range three west; runs tlieiic*
north sixty -eight east, three hundred and seven-
teen chains eight linka, to a point in the north-
east quarter of section fourteen, township fifty-
one north, range two west; thence north twen-
ty two west, two hundred and fourteen chains
and sixteen links, to a point in the southeast
quarter of section thirty-tour, township fifty-
two north, range two west; thence south sixty-
eight west, three hundred and seventeen chains
and eight links, to a point in the southeast
quarter of section eleven, township Ilfty-one
north, range three weat; thence aouth twenty-
two east, two hundred and fourteen chains
sixteen 'links, to the place of beginning. ['101
And that a certificate of said survCT was duly
made and recorded in the book of record of
surveys kept b;r the said petitioner as sur-
veyor as aforesaid. Tliat before the time when
claims should have been filed pursuant to the
Act of Congress of the second March, one
thousand eight hundred and five, the said de-
cree ot con cession and certificate ot aurvey
were, by mistake, thrown Into the fire and de-
stroyed. That in consequence of the destrua-
tlon ot said concession and certifleatc of sur-
vey, the said petitioner considered that he waa
excluded from the benefit of the Act of Con-
gress passed for the relief of land claimants,
snd omitted to file any notice ot his claim, and
has, thereby, been derived of the benefit of
hundred and forty-seven acres and thirty-flw
hundredths of an acre, have been sold by the
United States, and that the residue of the said
tract is not claimed or possessed by any person
other than the petitioner. And that the same
has been reserved from public sale until the
final adjudication thereon by the proper tribu-
nal. The petitioner ptt.Jt that the validity of
his s^d claim may be inquired into and de-
aided, and that his alaim and title may be con-
III i
in
BuFBEua CouBT OF TDK Ukitxii Btatis.
ItSS
firmed to kll that part of the uid tract which
hai not been sold KB aforeasid by the United
States, and lliat he be authorized to enter, in
any of tlie land-oSlcea in the State of Miasouri,
the quantity of one thousand nine hundred and
forty-aeven acre* and tbirt^-flve hundredths ot
an acre of land, the quantity sold as aforeaaid
by the United States. It appears, also, that on
the seventeenth day of March, one thousand
eisht hundred and twenty-five, Jutie Soulard,
widow of the said petitioner, and James G.
Soulard, Henry G. Soulard, Eliza Soulard, and
Benjamin A. Soulard, children and heirs-at-
law of tliB said petitioner, filed their petition,
setting forth that the aaid Antoine Soulard,
after having filed and prosecuted bis snid peti-
tion, died, leaving the said widow and children
bis only heirs and legal representatives; and
praying that the said cause mif;ht be revived
and stand in their names ai^ainst the United
States; and the attorney of the United States
freely admitting all the facts set forth in the
petition of the said widow and children, the
said rnuse wns revived accordingly.
103*] 'And it also appearing that the an-
swer of the altnrney oF the United Sthtes sets
forth, in su'.i3lniice, that be is wholly unin-
formed of all the matters and things in the
■aid petition of Antoine Soulard, revived as
aforesaid contained, and, therefore, that he does
not admit the anme to be true, and that he
prays the court that tlio said petitioners may
be held and required to prove all such facts,
matters, and things, the existence whereof is,
or may be deemed necessary to the connrmation
ot the said claim. And, moreover, that the
■aid p'llitinners may be required and compelled
to produce and show to the court the law,
usage, or ciiilora, by force and virtue whereof
the said claim can or ought to be confirmed.
And it further appparing by the finding of the
jury impaneled to try the issue diiectcd in this
cause, that such concession was made to the
said Antoine Soulard, as in the said petition Is
stated. And it also appearing In evidence of-
fered on the part of the said petitioners, that a
survey of the said land was made, and a plat
therenf recorded, as in the said petition is
stated. And that it was the practice ot the
Lieutenant- Governor of Upper Louisiana to
make concessions of land in virtue ot their of-
fice, as such f^ovemors, and not in virtue oF
any commission as sub-delegate. And after da
bate of the matters aforesaid, and the court
having inquired into the validity of the title of
the said petitioners; and for that it appears
to the court that no grant of the king's domain
could have been legally made, unless made in
virtue of some law or authority from him.
And for that the regulations ot Count O'Relly,
of the eighteenth ot February, in the year one
thousand seven hundred and seventy ; and ol
Governor Gayoso, of the ninth of September,
one thousand seven hundred and ninety -seven ;
and of Morales, the Intendant, of the seven-
teenth of July, one thousand seven hundred and
ninety-nine, exhibit a general intention and
policy on the part of the Spanish government,
in relation to the disposition of the public do-
main, which excludes every reasonable suppo-
sition of the existence of any law, usage, or
custom, under and in conformity to which the
kHegcd concession might have been pertected
into a eomplete title, had not the Kvereignti
ot the country been transferred to the United
States, and tor the principles, commands, and
prohibitions in those regulations contained, are
not to be reconciled 'with any idea of ['lO*
the legality ot the said concession, and are in-
compatible with the existence of any law, usage,
or custom in confonnity with which the said
concession might have been conHrmed, had no
change of sovereignty taken place. The court
doth, therefore, find the alleged concession and
claim ot the petitioners to be illegal in its
origin, and invalid; and doth, therefore, de-
cide, adjudge and decree agninst the validity
of the same; and doth further order, adjudge,
and decree, that the said petitioners pay atl
costs and charges occasioned in and about the
proseculioQ and defense of this suit.
The petitioner! entered an appeal to this
At January Term, 1830, the case was
argued by Mr. Benton, for the apppKnnts, and
by Mr. Wirt, Attorney -General, fur the United
States. The court held the case under advise-
ment, as stated in the opinion reported in 4 IV
ters, 611.
The appeal was again argued at January
Term, 1X35, by Mr. White, for the appel1:tms,
and by Mr, Butler, Attorney -Genera I, for the
United States; and was held under advisement
to this term, when
Mr. Justice Baldwin delivered the opinion
of the court:
This is an appeal from the decree ot the Dis-
trict Court of Missouri, on the petition of the
plaintirts, praying for the confirmation of their
claim to a tract of land, pursuant to the Act at
1824, for the settlement ot claims to land ia
that State.
The petition was in due form, setting forth
such a case as gave jurisdiction to the court hr-
low, who decided the claim to be invalid; the
appeal is regularly taken according to the terms
of the law. It is in full proof that, on the ^'Oth
April, 17B0, the Lieutenant-Governor of Upper
Louisiana, in consideration of the services ren-
dered to the Spanish government by Antoine
Soulard, the ancestor of the petitioners, made a
concession or order of survty to him and his
heirs forever, ot a tract of land of ten thousaml
arpcnte, French measure, to be surveyed and
located on any vacant land in the royal do-
main. Pursuant to this order, a survej- waa
made In February, 1804, and recorded in the
office ot the surveyor-general of the district, in
March following.
•Tn tiicct '^ -
such concession was not authnrl/ed' by the lawa
of Spain; but as they have all been fully con-
sidered and overruled in the numerous cases
which have been decided by this court, in
claims to land in Florida, under the treaty with
Spain, and in Missouri under the treaty with
Friince, and the various acts of Congress on the
nubject, it is deemed unnecessary to notice
thrm. To the survey no objections have been
made, if the con'^ession is valid; of which wb
can liave no doubt, connistently with the prin-
ciples heretofore established by this court.
We are therefore of opinion that the
claima of the petitioners to tne land described
Pcivn I*.
1U0
Hook vt al. j. Ijiitoh.
Ib their prtitfon la a good and valid title tb<r«-
to bj the Ian of nationa, the Uwa, uaages, and
eiistMDn of Spsin (undrr whoM fpivernment tlia
titU oriiiiiiafEiI ) , Uie treaty between Fm'ice and
tliir UniW ^l;itPB far tbe cesaton of Lnnisiiuia.
and the stipiilatinna thereof, aa well aa the acts
of Con<^c» in reUtion thereto; and that it
ou^ht to lie eonflrmed to the petitioners a^ree-
ablj to the prajfr of their petition.
The court doth therefore finally onler, ad-
judge and decree, that the decree of tbe Dia-
triet Court of Uissouri be, and the aame ia
herehy annulled and reveraed, except aa to such
part or parta of the land aurt-eyed to the anid
Soulard, pursuant to the aforenaid eoneesaion,
aa had been Bold by the United States before
the filing of tbe petitiona in thia caae, a" ''
wbich the decree of the District Court is '.
^ affirmed, and the land so aold eonflrmed to
tbe United States. And thla court, proceadins
to reader aueh decree aa the Diatrict Court
au(>ht to haTe rendered, doth further order, ad-
judge a.nd decree, that the title of the petition-
•ra to »1I of aairl land embraced in aata concca-
lion and aurrey, wliich has not been ao aold by
the United States, ia valid by the lawa and
trea^ aforesaid, and la hereby conflmed to
them, agreeably to aaid concession and survey.
And the court doth further order, adjudge and
decree, that the surveyor of the public landa in
the State of Mieaouri ahall cause the land spe-
dSed therein and in this decree to be aur-
vejed at the expense of the petitioners, and to
do fDch Other acta tlicreon as are enjoined bj
law on such surveyor. Also, that auch sur-
veyor shall certify on tbe plots and eertifleates
Dl such survej to be so made, what part or
I08*] parts of the 'original survey of auch
hnd has been aold aa aforesaid by the United
States, together with the quantity thereof.
Whieh being ascertained, the said petitionera,
their heirs or legal representatives, shall bave
tbe right to enter the same quantity of land
ai ah^l be so certified to have been so sold by
tbe United States, in any land-offico In the
State of Missouri, after the same shall have
been offered for sale, which ent^' ahall be
Bade conformable to the act ol Congress in
iBch caae made and provided.
JOHN LINTON, Curator.
ne death ot the aj
aad the FOUtiMt for I
his appearance (or the eipciilor. the coort lua-
talDrd ■ motion to dlamlsa the csuae. aa no pcrton
appeared to proaecnte the talt lor tbe appellants.
BILL In equity from tbe Diatrict Court of
Loniaiatia, brought by appeal fa> this court,
from a decree of the Diatrict Court diaofssing
the bill upon demurrer.
It waa sug^eated by Mr. Porter, aa oounael
kit appellee, that Linton iraa dead, and he waa
ready to enter bis appearance for his eremitor,
and to revive the suit; and aa no person ap-
ANDREW DROOAN et al.. Libelants.
Admiralty — salvage, decree aa to amount not
revised except in mistake — jurisdiclion — pi-
lot as aalvor.
Salvait*. The brtr Hope, wltb a valuable earn,
bad been ronducted. In (be erealDK, bv ■ pilot. Tn-
(Ide of Mobile Point, where nllola ot (he ou(cr har-
bor UBuallj leave voaels whicb tbev pllo( laalde of
thi( bar. Tbe pilot waa dlscbarsed. and (he Hope
proceeded ap (be Bay ot Mobile. Tbe wind aoon
ar(er chaoged. blew a violent rale from the north-
west, both anchors parted, anil the Hope waa driv-
pD or: a ahoal ontalde of tbe point, amous tbe eaat
breukera. The sale Increaaed to a barricaoe, and
forced the vcsael on her beam-ends, and her maata
and tnwaprlt werv cut awav. The maater and crew
drierted ner to aava theli Uvea. After varloua
tniltleaa efforta to aave her. tbe llbelantu, all
pilots ot tbe outer harbor of lloblle, (wo dsra after
she was stranded, and while jet tn great perl), suc-
ceeded i and abe naa livoiiFht iiu :o tbe city of Mo-
bile b7 (hem, (owed by thnir pirol-boat, aasiated br
a ateamboat employed bj them. On ■ llltpl (or ifll-
va^e. the Dtattlct Court ot the tlclced States for
(be Diatrict ot Alabama allowed, aa SDlvige. on a
(bird of tia,29fl.68. (he appralaed value of the brig
and cargo. The ownet* ot the brls and cargo ap-
pealed to this court.
The amannt of salvage allowed br the District
Court la eertalnlr not, under the clrcumataDcea ot
(h* case, anreaaonablc. This court Is not la tbe
habit at revlilng such decrees aa to tbe amount ot
sulTSKe. unless upon some clear and palpable mla-
takc, or groas over-allowance ot tbe court bi>low.
It la eqnallj against sound poller aod public con-
venience to entourage appeafa of thla aort In mat-
ters ot dlacretlon ; unleaa there bis been aome vio-
lation of (be loat principles which ongbt.to regu-
tate the lubjeet. *
SnllB for pllotue on tbe blirh seas, and on waters
navigable from (he aes, aa tar aa tbe tide ebb* and
flows, an within tbe admiral tr and maritime Juris-
diction of the Dnlted 8tatea. Tbe aervlce la a(^lc^
Ir msrldnie, aod tails witbin the prlDclnlu sireBc^
establlahed by this court lu tbe caae ot The Thomas
Jefferson. 10 Wbeaton'a Rep. 42B. and Pevronx v.
Bowam, 0 Peters'a Hep. «8l
Tbe jurisdiclion ot the district courta ot tbe
United BtatcB. In caaea ot admlraltr and maritime
So rls diction. Is not ouated bj (he adopdoo ot (he
;tste lawa or (ha act ot Congresa. Tbe onir effect
Is to leave the Jurisdiction eoncDrrent In the State
courta: and. It the partr should sue In tbe sdmlral-
tj, to limit bis recoverr to tbe same precise mm,
to which he would be entitled under tbe State
lawa. adopted br Congress, U be should aue In (fas
State courta.
A pilot, while acting within tbe strict line of bis
dutr, however he may entitle himself to eitrsocdl-
narr ptlotaite. compensation tor eilruordlnarr ktt-
Ices. ss con trad latin m I Hbed frnm nrdlnnri' Wii^i.
aue tor ordlnarr serrleai^ cannot be entitled ta
claim salvage. In thla respect ha la not dlsllu-
gulsbed from snr other officer, public or nrlrnte.
■rtlDE within tbe spproprlate sphere ot his dutv.
But a pilot, aa ancb. Is not disabled. In virtue of
bis oOlce. from becoming a salvor. Oo the con-
rond tbe line of bis appropriate duties, or unde'
eltach. he standi in tbe *same relntloa to i*l(>tl
title to compeosallon to the extent ot the merit ot
tbe eervlcps. viewed In (he light ot ■ liberal public
1, tn the ordlBs
]ce of Ibelr du
:e ot tblDR!!. Ii
_nd the amount I
D. S, SiO.
Rights ot seamen as sa
L.R.A. 193.
Jurisdiction of admlraltr
•sa note to SG L.B.A. 32».
S«S
SnPBKHB CODBT OF TBI VlTTttD StitU.
! Is not nTthI
.mBloy llrtteni t
properlr a HnlvaKC ecrrlee, TuTolvlnfi i
Bpanilbllllleii, tor whkb hia emplovi
cullkrif lit hlai : but ,v«t In no aeni
tb« dut; of navlRBtlDg fa[s ship.
pre-e»V«lDB* c.
tlie duty of enmloylnR themaplvw (e
"They hid. Bt the time, ni
the dlatreflaed shin. Tbeji
The dutlen they undertook were far b«-
. _ _. / belQDElDS I "
■longing to salTon.
ON appeal from the Hiitrict Court of the Unit-
ed States for the Southern District of Ala-
The ship Hope wb.9 bound to Mobile rrom
Havana, in January, 1832, with a cai^o of
fruit, Bui^r, coffee, ci-tars, and tobacco. She
arrived off the port of Mobile on the 24th Jan-
uary, ]832, tnolt a pilot, and was carried safely
wi'.iiin Sfibile Point, to a place at which tlie
[lilnti are usually dischnr^d; the pilot then
eft her, and she proceeded some distsnce up
the bay. and came to anchor about ail miles
within Mobile Point.
Tn the night, the wind rose to a powerFut
Kl«; in the course of which the bri,!^ parted
r cables, and was driven by the force of the
winds and wave<i below Mobile Point, where
Bhe grounded. The master and crew, in order
to save their lives, took to the boat, Knd left
the brig and cargo.
The veaael remained grounded lor sometime
in great peril, having bilged, and having four
feet of water in her hold. The libelants, who
were pilots of the outer harbor of Mobile, after
having, without success, made previous efforts
to board her, at length succeeded ; and less tha'i
half an hour afterwards, the wind having
changed, the vessel and cargo floated off; and
the libelants took her in charge. Bad not the
i 10*] libelants been on board 'the Hope at the
time the wind changed, she would have been
driven on the opposite shore, and would, with
her cargo, in the opinion of the witnesses ex-
amfoed tn the District Court, have been totally
lost. She was towed by the boats of the libel
ants into tho port of Mobile.
The libelants proceeded for salvage against
the Hope and cargo, and the District Court
awarded to tbem, as salvage, one third of the
value of the ship and cargo. The total value
of the property saved was $1S,2D9.B8.
The owners appealed to this court.
The case was argued by Mr. Ogden for the ap-
pellants, and by Mr. Southard for the appellees.
The facts of the case are stated more at
Inrge in the opinion of the court;
Mr. Ogden contended that, as the libelants
were pilots of the outer bay of Mobile, they
could not be considered as salvors; and could
not claim salvage for such services as those
which bad been nodered to the Hope. The
proceedings In the District Court were for sal-
vage, aa appeam by the bill; and the decree ol
that court, made on the I8th January, 1933, is
for one third of the amount of the appraised
value of the property saved, "as salvage."
Having claimed as salvors, and the law. not
authoriemg such a claim, they cannot now, by
an amendment of the libel, state such a claim
as this court will ratify. The amendment
would alter the whale nature of the case ; and
although amendments are, in many cases, al-
lowed in an appellate court, this is not aiich a
cane. Cited. 9 Cranch, 244, 2S4; The Edward,
1 Wheat. 281; 7 Cranch, 670; Diviua Paalora.
4 Wheat. S2.
The following points were presented for the
consideration of the court:
1. That It was the duty of the libelants, a*
pilots, to give any assistance in their power to
vessels in distress, within the limits of their
pilot ground; and this being a service rendered
in discharge of their duty, forms no case for ■
claim of salvage.
2. That the act of Congress leaves the regul*-
tions of pilots *to the State laws; and ['111
by the law of Alabama, any extra allowance
claimed by pilots must be fixed by the wardens
of the port.
3. That the District Court of Alabama ba<l
no jurisdiction in this case.
By the libel it appears that the libelants wer '
pilots of the port of Mobile, in Alabama; and
the first question for the consideration of tbe
court is, whether pilots can claim salvage an
der the circumstance of this case.
Tbe principles of law which regulate such
claims, claims for compensation and reward for
services which are performed in the ordinajv
course of the duties of the situation of the per-
son who performs them, virtute officii, are re-
ported in the case of Le Tigre, 3 Wash. C. C.
R. 570, 71. A pilot is not entitled to salvage
unless he goes beyond his ordinary duties. A
person who is bound to render assii<tance in sav-
ing a ship, cannot be considered a salvor. The
Neptune, I Hog. Ad. Ren. 20B; The Joseph, 1
Rob. Ad. Rep. 257. A pilot is not to claim as
a. salvor. Bees. Ad. Rep. 212. A case has
been decided by Mr. Justice Tiiompaon, In the
Circuit Court of the Southern District of New
York, in which pilots who had rescued the ship
from great danger, were not admitted to b^
salvors. The case of The Wave, Mans. Rep.
The danger in which the vessel may be, does
not lessen the duty of a pilot to rescue and save
her. When a vessel is in distress, and ia found
in that situation by pilots on their cruising
ground, it Is their duty as pilots to bring her
into port. If the servicer have been great, th^
■ire entitled to extra pilolaije. to be d.;d'ed ac-
cording to the laws of the State of which the
port out of which the pilots cniisc is a part.
The regulations of pilots of the port of Mobile
make provisions for extra oompensation in such
cases; and in eonforniity with these regula-
tions, and under them, the lilielants were
bound to present their claims.
It was oontended that the case of The Wave
was in all important particulars the same oa
the case before the court. The Wave was out-
side of the port of New York, was la great
peril, and was boarded off Sandy Hook by Uw
pilots. Tl)e eohrt would allow no salvage.
Uobabt r ai. v. DaooAR et au
On the HCond point. It was nr^ed that if
111*] the libetnats cannot 'claim aa aalvors,
(her cannot claim extra compenwtion by pro-
ceeding in the District Court bj a libel. Tha
eunpensation or extra allowance muet be fixeil,
according to the laws of Alabamh, by the vrar-
dens of the port of Mobile.
It is Admitted thftt cUimB for terviees ren-
dered by pilots which may entitle them to ex-
tra allowanccB, may be entertained in the ad-
minUtyi but the Bdmiralty jurisdiction of ths
courts of tbe United States in such cases ia
concurrent with that of the courts of the States
— it is not exclusive. In the same munner, ac-
tions for seamen's wages may be luaintainej in
the courts of common law, althou"h they are
more properly of admiralty proceedings. It is
[or contmiience, as all the seamen of a ship
may be joined in a libel for wages, that such
claims are generally presented in the ndmiral-
tf; and not becausi the adiiiiralty has exclu-
sive cognizance of them. The jurisdiction of
' ' n law and of courts of ad-
latcd and limited by the provisions of a law
applicable to the cose. To suppose that prn-
ceedings in one court would produce a dilTercnt
result, a higher or lower rate oF compenaatioo
would not be proper. The principles of the Uw
in both courts should be alike, as would be tlie
eridence; and the application of these princi-
ples should be the same.
If, then, a compensation is fixed by law for
the services of a pilot, he cannot, by coming
into the admiralty, ask a gieater compensation
than is allowed by a law applicable to the case.
If, b^ the provisions of a law, extra coiopcnsa-
tioQ is to be given, and the manner in which
the amount of such compensation is to be ds-
termined is Sxed; no recovery can be had in
the admiralty until after a proceeding under
the provisions of the law shall have determined
the amount of the allowances; and that alone
can be recovered in the admiralty. Has the
law fixed any compensation for the services of
pilots who perform ordinary or extraordinary
The Constitution of the United SUtei gives
to Congress the power to r^ulate commerce.
Under this power It may be that Congress
might regulate the pilots in all the ports of the
United States; but it is not admitted that tbey
lis*] could do this to the full 'extent; they
eould not regulate the compensation to pilots,
ior, if they could, tliey might regulate the
wharves and fix the rate of wharfage in all the
seaports. The duties of pilots, tbeir regula-
tion, their compensation, are properly left to
the Legislatures of the SUtes of the Union.
Congress, whatever may be their powers, have,
by an Act passed on the 7th of August, 1794 (2
I^ws U. S., ch. 9, sec 4), declared that pilots
Ib the ports of the United States shall be regu-
lated by State laws. By this provision, the
laws of the States are to govern in all the claims
made by pilots until Congress shall interfere.
Alabiutia has passed laws for the government
and r^iulation of pilots and pilotage; the fare
for the ordinary services of pilots is fixed, and
provision is made for determining the compen-
sation for extraordinary services. This is to
bt determined t^ ^^ wardens of the port.
Ill
Their taw ts in all reapeets the si
relative to pilots in New York.
It has been decided by Mr. Justice Thom|i9on.
in the case of The Wave, tliat Lniigiess lias, by
their Act of 1794, adopted all tlie laws of the
States in relation to piloU. If so. then the )i
belants could not proceed in the District Court
of Alabama, as that court had no jurisdiction
of the case.
Mr. Southard, for the appellees.
Tlie libelants are pitoU of the outer hnrlioi
of Mobile; and their duty is to cumlucl viwieU
from the Gulf of Mi'^ico into the Hay of Mo-
bile. They performed services by which the
brig Ilupe and cargo nci'c saved from a total
loss and entire destruction; and Uv the District
Court of the United Slates for tl'ie District oi
Alabama, they lukve been allowed one third of
the value of the property saved, as ^^alvage.
They preaenlcU themaelves before that court as
salvors, and their claim here is purely a ques-
tion of salvage. This claim Is distinctly made
in the libel as a claim for salvage; and it will
be treated as such in the argument now ad-
dressed to the court.
It is not denied that the services of the libel
ants were mo ri tori eras. Tliey boaiilrd the ves
sel when she was in extreme pciil, while shi-
was yet aground, before she lloated olT by llie
change of wind ; she was saved from being driv
en to the opposite shoal, 'where she I'lll
would have been totally wrecked. Alt the du-
ty required from pilots had been done when the
Hope had been conducted up the inner harbor
of Mobile. For twenty-seven hours the pilot
who had navigated her up to Mobile bad been
on board of the Hope and he was piopevly dis-
charged; all that could be required of a pilot
of the outer harbor had been done and his con-
nection i\'ith the vessel was at an end. If,
after a vessel arrives in the inner bay, a pilot is
wanted, a pilot of that hay is called up.m. Thu*
one of the libelants who had piloted tlie vessel
up the bay, had ceased to hate any connection
with her; and the other libelants never had
anything to do with her, until they went on
board of her after the disasters had occurred
which had driven her on shore. For two hours
such OS to require a pilot, if she
had become dismnsted, cast away, sunk, no
duties could have been called for from the pilot
of- the outer harbor. Pilots are not general
conservators of shipping. They are not to be
called upon more than an; other persons to
save vessels.
The Hope had been driven out to sea; she
was on shore half a mile out of Mobile Point;
she was in no "port," no "harbor," no "bay."
which are the places mentioned in the Act of
Congress of 1794. The place where she \ay was
on the high seas," beyond the local jurisdic-
tion of the State of Alabama, or of any State;
in no county. All the authorities make tin
place the "high seas." It was where "tha
winds and waves prevail without check or con-
trol;" heycnd the fauces terrie. She was •
wreck on the ocean.
Other facts are proper to be considered. The
ship and cargo were in a situation of imminent
peril ; her masts and spars were cut away. She
had no cable, no anchori all were lost. Sh«
lU
Supnui Oovwt or ran Uititcd SrAm.
wM Htrlking on tlie grounil, amidst tli>! break-
ersi had sprung a IcaK. and bad two feet of wa-
ter in her hold before she atruek on tltc bank,
and upwards ot threr feet when she Hoated,
with the libelants on hoard — her pumps weri?
choaked; she had a ai^jnal of diBtress at the
stump of the mast; the captain and crew had
deserted her to save their lives, and there was
DO living man on board.
lift*] ■The Hope was not in a situation to
require a pilot. No pilotage services would
have been useful to her; and the evidence
shows that such was the opinion of the master,
lor b« did not call on the libelants, as pilots,
to j^ to the rescue of the vessel.
While she was in this situation, some per-
sons, other than the libelants, went on hoard of
her and saved some articles. They could not
remain with her. and she was again abandoned
And deserted. Twenty-four hours afterward!!
the libelarts took cliarw of her. The articks
saved from the veR.<te1. before the libeliints
hoarded her, were the subject of salvagt. These
clrcumstancPS. and others of equal importance,
of the BRine charade/, exhibit a case of prop-
erty actually rescued by the libelants from en-
tire loss, at great hazard to them, and with
great labor and difficulty. If they are consid-
ered as salvors by this court, the allowanee of
Hie District Court must be ratified. Salvage H
tlie reward for efGcient services; and it is a
premium which Is EJven to Induce like e1Ti)rta,
when, by the casualties of the ocran, they are
required. The proposition of the counsel for
the appellants is that the libelants wero pilots,
and not salvors. If this is the cnae pilots can
never be salvors. To show that this is not the
law, the following cases were cited: The Helen.
3 Rob. Rep. IS3; The Appollo, 3 R..b. 240;
The Two Catharines, Z Mason's Rep. 3:15, 338;
To carry the principle contended for by the
counsel of thp aprfllants into elTcct would pro-
duce the highest injustice. An officer perform-
ing acts witliin the sphere of his duty, la not to
ask for more than his regular compensation;
hut beyond it, and out of the line of his duty,
there is no reason why services so extensive, if
meritorious, shall not be rewarded. 3 Kent's
Commentaries, 1D7, 198. To say that pilots
shall not have salvage, in any case, ia a danger-
ous position; dangerous to humanity, danger-
ous to commercial property, and ought not to
be admitted.
As to the appellant's second point, it is sub-
mitted that to maintain it, counsel must show
that, hy law and regulation, it was the duty of
the pilots to save the Hope in the situation in
which she was.
As she ivas not in any of the places men'
tioned in the Act of Congress of 17IM; in no
"port," no "harbor," no "bay," no "haven,"
110*1 'the act does not apply; the law, on a
doubtful point, should not receive a severe cod-
struction.
Rut the constitutionality of that law, if cor-
rectly construed by the counsel for the apjiel-
lants, may be doubted. If there can be power
tn the States to regulate pilots in the buys, har-
bors, and havens of the United States; if Con-
gress can give such powers, the whole .jurisdic-
tion of the admiralty may be surrendered and
no longer exist id tlie courts of Uie United
States. If Congress can aulhoriu the r^ala-
tion of pilots m harbors, by the States, no
power exists in Congress to give to the StatM
the regulation of pilot* on the high seas.
It may be doubted If Congress can say to a
party who has a case of admiralty and mari-
time jurisdiction, "your case shall be decided
hy the wardens of a port in one of the States."
The Act of 1794 was but temporary, as it pro-
vides for the regulation of pilots in the States
until otherwise regulated. Pilotage is a sub-
ject, from its very nature, of admiralty juris-
diction, and it is also of common law jurisdia'
tion. But it is denied that Congress can pn-
vent its being cogniiable in courts of admiral-
ty, encumbered hy State laws; although it
shall be allowed to he within the concurrent
jurisdiction of the courts of common law.
The argument that pilotage cannot be the
ibject of juriadictioi ' ' ...
. which are also cognizable in courts
of chancery. A larger relief is often sought
and obtained In chancery than is afforded at
If the case of The Wave shall be considered
as influencing the claim of the libelanta, it U
submitted that, as the pilot laws of New York
were passed before the Act of Congress of
1794, that act might he considered as having
adopted those laws: but Alabama was not a
State in 1794; and it wilt nbt be claimed that
by prospective legislation Congress could
adopt State laws to be enacted at a future pe-
riod.
The case of The Wave was, in all its material
features, different from that of the Hope.
Tlie Wave was within the fauces term; within
the pilot ground; within a bay, a haven, and
sutiject to the laws regulating pilots; and, in
that case, it was said by 'the judge [*119
that pilotage is of admiralty jurisdiction; and
he also says that there may be cases in which
pilots may be salvors. This is stated after a
full examination of alt the decided cases.
Mr. Ogden, in reply, argued that in the sit-
uation the Hope was in when boarded hy th«
libelants, nearly afloat, she should have bten
brought by the libelants into Mobile, in their
capacity of pilots. Had she been found at sea,
and in a state of wreck, deserted, the pilots, ma
pilots, should have taken charge of her.
Until Congress shall paas laws regulating
pilots, they are necpsaarily of State regulation.
They reside in the particular Sta(«s, and th«ir
transactions are essentially connected with th«
safety and welfare of the citizens, and with the
business of the States where they reside. Unlesa
prohibited by Congress, the establishment of si
system for their government seems of essential
imj:ortance and necessity.
When Congress declared that pilots should
be regulated by State laws, they did not take
away the admiralty jurisdiction. They oblige
the pilot to submit to the regulations af the
States as to the amount of pilotage; but this
ascertained, he may enforce its payment in mn
admiralty proceeding.
Blr. Justice Story delivered the opinion eC
the court:
This is on appeal from a decree «f th« Xa^
PtMTm ■•.
ISM
. Ubouak CT At.
117
triet Court foi- the Southern Dlatriet of AU-
buna, in the cuw of m, libel for uilTagc, insti'
tntMi in the court belon- by tlic app?l!ee^. TliLit
decree Awarded to the appelleps one third otthe
■ppr&iMd value of the brtR and cargo as 9al-
ragB; the appraised ralue being CIS,S99.53.
The material (acta of the case are aa follows:
The brig Hope. Iwlonging to Cbarleatown, near
Boston, being on a voyage from the Havana to
the port of Mobile, on the 24th of Jamiai?,
1832, took a pilot (who waa one of the libel
BntB) about ten miles W. S. W. from Mobile
Point, hj whom stie woa oonducted inside of Mo-
bile Point, to the place where the pilots at the
outward bar of that point ustially leave resseU
which they pilot inside of that tuLr, about half
past seven o'clock of the eveninc of the next
daj, and be was then discharged by the master
of tbe brig. The brig then proceeded on her
course up the Bay of Mobile, and came to
118*] 'anchor about nine o'clock the same
evening. About this time the wind ehnnged to
the northwest, and In the course of the night it
blew a violent gale; the brig parted both her
anchors, and waa driven nutnide of Mobile
Point ijiout two miles, and then brought up
among the east breakers. At this time the gale
liad increased to a hurricane, the sea broke over
the brig in every direction, and forced her on
her beam ends. At Sve o'clock in the morning
the maats and the bowsprit were cut awiiy to
relieve and right her, for the safety of the
' vessel, cargo, and crew, and a signal of distress
waa hoist«d. At noon, the Hood tide making,
the breakers increasing, and the sate contin-
uing, there being two feet of water in the hold,
and the pumps t>eing choked with colfee, the
master and crew, to save their lives and the
ship'e papers, left the brig in the longboat and
made lor the shore, and were taken up by the
emtom-house boat. On the evening of the nazt
day the master of the brig made arrangements
with the libelants, who are all pilots of the port
of Mobile, with their boats and the crew of the
brig, to make efforts to extricate the brig and
eargo from their perilous condition. Accord-
higi7> the next morning an attempt was mode
hj tbe libelants and the master (the mate and
the erew of the brig declining to assist) to get
on board of the bng; but it still blew so fresh
that it became impossible to board her. The
master of tbe brig then went on shore from the
pilot boat, which anchored at Mobile Point.
AboQt one o'clock of tbe same day the brig
■faifted her position, and the libelants discov-
ered her to oe nearly afloat. Tbe pilot boats
w«re then got under way, and in about three
quarters of an hour afterwards the libelants,
being then on board, ana no other pensons, the
brig floated. At this time the wind was blow-
ii^ fresh from E. 8. E.; and it the brig bad
not been taken possession of by the libelants,
sha would have Seen drifted on the west bank,
and have become a complete wreck. The brig
waa then towed by the pilot boats and a steam-
boAt, procured by the libelants, to tbe port of
Habile, in the course of the two succeeding
daya. Such are the material facts.
In the course of the proceedings in the court
beknr, an agreement was asserted to have been
made between tbe parties, that, in case the ves-
•el Bad eargo should be saved, the compensa-
tlt*] tlon *should be fixed by the Chanii»er
• 1.. ad.
of Commerce of Mobile. Tliat agreement,
however, is denied by the libelants to have been
applicable to the actual circumstances of the
case; and no compensation was, in fact,
awarded by the Chamber of Coraroerce. That
agreement lias not been insisted on here In the
argument on either side; and, indeed, being to
a mere amiciLbie tribunal, as arbitrators, could
not, in a case of this sort, be now insisted upon
to bar the jurisdiction of the court. It Is
wholly unlike the case, where a positive law
has fixed the mode of ascertaining the compen-
No objection has been made to the amount
of sslvage decreed by the court below, if the
libelants are entitled to any. And the objec-
tion Jias been properly abandoned ; for tbe
amount under the circumstances is certainly not
unreasonable. Besides, this court is not in the
habit of revising such decrees as to the amount
of salvage, unless upon some clear and palpB'
bic mistake or gros^ over- allowance of the court
below. It is equally against sound policy and
public convenience to encourage appeals of this
sort in matters of diiteretion, unless there has
been some violation of the just principles which
ought to regulate the subject.
Three objections have been made to the de-
cree: Firet, that it was the duty of the libel-
ants, as pilots, to give every assistance in tlicir
power to a vessel in distress within the limits
of their pilot ground; and tliat this, being a
service rendered In the discharge of tlielr duty,
forms no case for a claim of salvage. Second,
that the act of Ongress on this subject (Act of
7tb of August, 1780, ch. 8. — ) leaves the reg-
ulation of pilots to the State laws; and that by
the laws of Alabama any extra allowance
claimed by these pilots must be flxed by the
wardens of the port. Third, that the District
Court had no jurisdiction of tlie case.
In respect to the last objection, it has been
urged in a very limited form, not as an objec-
tion to the jurisdiction of the courts of admir-
alty to entertain suits for pilotage generally,
but only for pilotage under circumstances like
the present, where a fixed compensation is
established, under the authority of Congress,
by the State laws. We are of opinicn tliat
suits for pilotage on the high seas, and on
waters navigable from the st-a, as far as the
tide 'ebbs and Hows, are within the ad- ['lao
miraltj and maritime jurisdiction of the Unit-
ed States. The service is strictly maritime,
and fal!s within the principles already estab-
lished by this court in the case of The Thomas
Jefferson, 10 Wheaton R. 428, and Peyroux ».
Howard, 6 Peters's E. fl82.
The other part of the objection is not, in our
opinion, mainlainatilc. The juriEidiction of tbe
district courts of the United Statett, in cases of
admiralty and maritime jurisdiction, is not
ousted by tbe adoption of the State laws by
the act of Congress. The only effect is to leave
the jurisdiction concuirent in the State courts;
and, if the party should sue in the admiralty,
to limit his recuveiy to the saiiie precise sum
to whLh he would be entitled under the State
laws adopted by Congress, if he should sue in
the SUte courts.
The second objection has been met at the
bar by an argument of a grave cast, vfi., that
the act of Congress, so far as it adopts the
teo
Sdpbbhe Coubt o
fntun laws to be paued b; the State* on the
■ubject of pilotAfre. U uiicnnsiitutinnal and
void; for CnngrrdS ^.-annot dplpi^ate their pow-
ers of l«i»lntion to the Stntps; and that as Al-
abama was not admitted into llie Union as a
SUte until the year 1819, and its laws on this
subject have been long since passed (in 1822).
these laws aie, ipso facto, nulfities. This ques-
tion was much discussed in tlie case of Gibbons
T. Ogden. 9 Whealon, R. 20T, 208, and may
not be without diHiculties. But we arq spiired
of i
I the
: of opinion that the
present is not a case of pi1ntasI^ but of Halvage)
and Congrraa have never conliiled to tliu States
any power to regulate salvage on the sea, or on
tide-waters; but the same belongs to the dis-
trict courts, in virtue of the delegation to them
of admirait; and maritime jurisdiction.
Whether, indeed, this be a ease of salvage or
not, is the point involved in the Hi at objection ;
and we shall now proceed to state the reaeons
why wo are of opinion that it is.
We agree to the doctrine stated in the cases
cited at the bar that a pilot, while acting in It
In the strict line of his dut^, however, he may
entitle himself to extraordinary pilotage com-
pensation for extraordinary services, as con-
tradistinguished from ordinal^ pilotage (or or-
dinary services, cannot be entitled to claim sal-
121*] vage. *In this respect he is not dia-
tinguished from any other officer, public or
private, acting within the appropriate sphere
of his duty. But a pilot, as such, is not dis-
abled, in virtue of his otHce, from beciiming a
salvor. On the contrary, whenever he per
forms salvage services beyond tlie line of his
appropriate duties, or under circumatanccs to
which those duties do not justly attuch, ha
stands in the same relation to the pro)<crty a.4
any other salvor; that ia, with a title to com-
Gnsation to the extent of the merit of his seiv
m, viewed in the tight of a liberal public
SQlicy. Sir William Scott, in the case of the
oseph Harvey (1 Rob. 300), speaking npon
this subject, where pilots were claiming as sal-
vors, said: "This is a petition praying salvaj-e-,
and it is said by his majesty's advocate that it
is impossible for these persons to claim salvage.
as there is little more than pilotage due; a]
though it is allowed that the court may. in
cases of pilotage, as well as of salvage, diruct a
proper remuneration to he made. It may be in
an extraordinary case dilficult to distinguish a
case of pilotage from a case of salvage properly
so called; (or it is posaible that the safe con-
duct of a ship, under circumstances o( extreme
personal danger and personal exertion, may ex-
alt a pilotage service into something of a sal-
vage service. But, in geneinl, they are dis-
tinguishable enough; and the pilot, though
ha contributes to the safety of a ship, is not
to claim as a legal salvor." From this lan-
guage it is obvious that the learned judge had
in his mind the distinction between extraordi-
nary pilotage services and salvage services prop
eriy so called; the one clearly going beyond
the mere line of duty, and the other going
merely to the e^ctreme line of duty. In the
ease of The Aouilla. 1 Rob. 37, where a mag
istrat«, acting in discharge of his public duty.
dtmanded to be couaidered as a salvor, tha
■a* UNimt Srana. UM
Sams learned judp said: Tliis. bomvar, fa
certain, that if a magistrate, acting in bit pub-
lic duty, on such an occasion, should go be-
>ond the limits of his odicial duty in giving ex-
traordinary assistance, he would have an unde-
niable ri^ht to be considered as a salvor." Th«
same principle was fully recognized bv Hr.
Justice Washington, in the case of Le Tigre, 3
Wash. C. C. H. 189, 170, 171, b which, after
stating that ordtnai; ofncial duties were not to
be compensated by salvage, he added: "Of Uiis
class of cases is that of a pilot, *who [*11S
ufely conducts Into port a vessel in distress at
sea. He acta in the performance of his ordi-
nary duty, imposed upon him by the law and
nature of his employment; and he is there-
fore not entitled to salvage, unless in a caaa
where he goes beyond the ordinary duties at-
tached to his employment." Mr. Justic*
Thompson in the MS. case of The Wave, cited at
the bar, maintained the same doctrina, uponao
elaborate review of all the cases. It baa be«B
also applied to another very meritorious class
of cases, we mean that of seamen, who. in the
ordinary course of things, in the performance
of their duties, are not allowed to liecome sal-
vors, whatever may have been the perils or
hardships or gallantry ol their services in sav-
ing the ship and cargo. We say in the ordinary
course of things; for extraordinary events may
occur, in which their connection with the ship
may be dissolved de facto, or by operation ol
law, or they may exceed their proper duty, in
which cases they may be permitted to claim as
salvors. Such was the case of the seamen left
on board in the case of The Blaireau. 2 Cranch
R. 208; and such was the exception allnded
to in the case of The Neptune, 1 Ha^;;. Adni.
R. 230, 237.' In this last case Lord Stowell,
after saying that the crew of a ship, cannot be
considered as salvors, gave what he deemed the
definition of a salvor: "What (said he] is a sal-
vorl A person who, without any particular re-
lation to a ship in distress, prolTers useful serv-
ices, and gives it as a volunteer adventurer
without any pre-existing covenant that connect-
ed him with the duty of employing himself for
the preservation of that ship." Aud it must be
admitted that, however harsh the rule may
seem to be in its actual application to particn-
lar cases, it is well founded in publiu policy,
and strikes at the root of those temptations
which might otherwise exist to an alarming ex-
tent, to seduce pilots and others to abandon
their proper duly, that they might profit by the
distresses of the ship, which they are bound to
.Such, then, being the rule, let lis see whether
it has any application to the actual circumstan-
crs of the present case. In the first place, none
uf the libelants were, at the time of the service
'performed, at all connectod with the ['1S3
ilope in the character of pilots. The pilot had
been regularly discharged at the usual place.
after arriving at Mobile Point; and he became.
therefore, as to her, functus officio, until tber«
was some new call for pilot duty. Now, tlie
subsequent services, asked by the master and
proiTered by the libelants, as the very agT«e-
— See 8 Kent's Com. Lect. 4T. p. ]S0,
) The Two Cstberlnei, 2 Uasoa, '
V. WalMia, 8 Bos. 4 Full. 613:.
'i.i'r'i
IRSft
t Un
1 States *. Tiik Hens or Haweihii,
»
m«nt sv^gested In tlie pri>oepding« abundnntlj
■hnws, was not iin(l(>rslnri] by either of the
partiea to be (or mere pilot aerricea, but for
•ervicea of a far dttTerent ftnd more extensive
nature and character than belong to aucb an
employment.
Indeed, in no juat aensc can the iprvice o(
Uieae IJbeUnta be deemed to fall within the
■cope of the duties of pilnts. Lord Tentrrden,
In tail excellent Treatiae on Shipping (part 2,
eh. S, lec. 1, p. 14S), baa dellned a pilot to be
"a person taken on board at a particular place
for the purpose of cunilucting a ship through a
riTcr, read, or channel, or from or into a port."
Hia duty, therefore, ia properly the duty tc
navigste the ship over and through his pilotage
limits, or, aa it ta commonly caJlcd, his pilot-
age ground. The c*ae therefore necessarily
preauppoaes that the ship is in a condition
capable of being navigated ; distressed, if you
please, and laboring under dilTjcultieB, but still
capable, in point of crew, equipments, and
■itnation, of being navigated. No one ever
heard of its being witbin the scope of the poai-
tJTe duties of the pilot to go to Uie rescue of a
wrecked vessel, and employ himself in saving
her or her cargo, when she was wholly uii-
navigable. That Is a duty pntirely distinct in
its nature, and no more belonging to a pihit
than it would be to supply such a vessi-l with
maats or sails, or to employ lighters to dis
chaige her cargo, in order to float her. It ia
properly a salvage service, involving dufics and
Kiponsibilitiea, tor which his eiHploymcnt may
peculiarly fit him, but yet in no sense inctitLled
In the duty of navi;;ating the ahip. Lord Al-
Tanley, iu Newman v. Walters, 3 Bos. & Pull.
BIB, puts a case far short of that which ia here
presented, aa a clear case of salvage. "Sup-
pose (said he) a tempest should arise, while the
pilot ia on board, and he should go off in a
boat to the shore to fetch hands, and should
risk bia life for the safety of the ship in a man-
ner dilTerent from that whicb bis du^ required ;
in such a case it seems to me that be would be
entitled to a compensation in the nature of sai-
ls**] vage; 'and I am ^lad that Sir Willtitm
Scott Sippeara to entertain the same opinion."
Now, in the case here supposed, the pilot had
already acquired a relation to the ship by hav-
ing actually entered upon the service as such;
ai^ jvt the learned judge holds it upon princi-
ple, k clear ease of salvage.
Whkt were the circumstances under which the
present service was performed? The brig was
stranded upon a bank, with the sea rolling over
her; her maats and bowsprit were cut away;
ber pomps were choked; two feet of water were
In her hold; she waa deserted by ber master
and crew, and incapable of navigation by her-
self; ftnd even when gotten off, he was navi-
lated only )ij being tuwed by two pilot boats
and a ateamboat Into port. At this time the li-
belants had no oHlcial connection wb at soever
«ith ber as pilots. Where, then, was the obli-
jBtion on tbem to go on board and take charge
of ft wreck, and to haiard their lives and prop-
er^, and to apply their labor to deliver the
br^ ftnd cargo from their present imminent per-
il*, aaj more than on any other persons T We
know of none. We think the whole enterprise
waa kn cntcrpriae of salvage, and not of pilot-
age. It waa a case where they acted as saWora
strictly according to the definition of Sir Wil-
liam Pcott, Tbcy had at the time no particular
relation to the diatressed shipi they prospered
useful services as vnlunteers, without any pre-
existing covenant that connected them with tlie
duty of employing themselves for her preser-
vation. The duties they undertook were far
beyond sny belonging to pilots, and precisely
those belonging to salvors.
For these reasons, therefore, we are of opin-
ion that the decree of tlie District Court of
Alabama ought to be afflrnied with costs.
This cause came on to be heard on the tran-
script of the record from the District Court of
the United States for the Southern District of
Alabama, and waa argued b3' counsel; on con
aideration whereof, it is adjudged and decreed
by_ thia court that the decree of the aaid Dis-
trict Court in this cause be, and the same is
hereby affirmed, with costs and damages at
the rate of six per centum per annum, on the
amount decreed by tlie said Diatrict Court aa
aalvage.
THE HEIRS AND REPRESENTATIVES ol
Joseph H. Hawkins, Deceaaed.
Venire de novo — conatruction of act of Con-
greas — rights of defendant* in suits by Unit-
ed States.
OoQgb a venire de novo la freiiuentlj awardeO
pat-tlea to amrnd. sad tbougb amendments
mjthlng more
c».iK« Tn whk
_ suits under
170T, to denr (o defsndanli
BBninst the tin I ted States.
J -_., dlaalio'
iM'foii
ol tbe United
e Sd March,
I for credits
be/ had not
the <
I haa I
allow a
a hy tbe spirit and letter of tbe
TJ BUU luuriu itCtlOn* o( " •-■■.'- "'1
C Judemc'nt from being g
equltablj (
„ „ ._ the Unrtcd
D of the cauac, he ta re-
■ to [1
ousting oiDcer
ejected : but tt
uslder
neni of
provision !i made (or a plain) for credits, at (tw
time dI Irlal. when It sbsll lie prOTed to tbe latU-
fni-Ilon of the court that tbe defendant la In ponaea-
■lon of vniicbers not Vfnre In fala power to procure,
and that be waa prevented fmin eihlblllng ■ claim
(or such ciedltB ii tbe Ireasur; bf abavace from
the Ignited States, or tome _una voidable accident.
TbuB ataowlDg It to I
BupBBMK CouBT or Till United Btatxo.
18N
or the IlLei &I
If a 11&T7 igeni
e bimself within
'Ipc trora a pur-
1 pay tta? oi'dfi-a of a puiBtr and shall permit
tnc reCPlptfi tor thi> sums palii Ijy him to gft Intn
the pnr§er^9 poHBeanloQ, by n'hom Ihev are exhibit-
ed at Ibe treasury, and allowed In the HdrI settl«-
|lten credit to the unv; ajiiit, or to Ibe govern-
ment, for the amount. [( assumfj tbe c' * '
nBTT aeeDt, on berome* a debt due tn
ler. as an Individual, to the navy aKei.. _ .. . .
Tite ptrion; and tbc latter cannot claim the
bavloe cTerT credit to whlcb be mar aunpone btm-
(elf equltabl; entitled, and whlcb hni been dlBal-
lowed, paaeed upon by a Jut; ; and ciiai'd" the •ila-
proTlalona <
IN error to the District Court of the United
Statea from the Eastern Diatrict of Loui-
This case wae befnre the enurt at January
Term, 183'^, on a writ of error to the Diatrict
Court of Louisiana, prosecuted bj Nathaniel
Cox, Nathaniel and James Dick, plaintilTa in
error, v. Tlie United States, 6 Peteis's Reports,
172. Natlianiei Coi and John Dick, the father
of Nathaniel and James Dick, were the sureties
of Joseph H. Hawkins, in his official bond to
the United States, as navy OKent of the United
States, at New Orleans. In the District Court
k judgment was given in favor of the United
States, and the same was reversed for an infor-
mality In eotering the same.
On the former writ of error, certain questions
were raised as to the admission of evidence of-
fcrred in the District Court, on the part of the
defendants, and rejected by the court. This
court sustained the decision of the district
judfce. 8 Pet«rs'a Rep. 200.
The judgment of the District Court of TjOuI-
siana having been reverBe<l, the cause went back
to that court on the following; mandate:
"Whereas lately in the Diatrict Court of the
United States for the Eastern District of Loui-
idana, before you, in a cause wherein the Unit-
•d States of America were plaintilT, and the
beirs and representatives of J. H. Hawkins, the
bein and representatives of John Dick and Na-
thaniel Cox, were defendants, the judgment of
the said District Court was in the following
" 'The court having maturely considered the
motion in arrest of judgment, now order that
117*1 jiidgment b« entered up aa of the *16th
instant, against the eatato of John Dtek and
Nathaniel Cox, jointly and severally, for the
sum of 20,000 dollars, with six per centum in-
terest from the 2d da^ of January, 1830, unttl
paid, and costs of suit, and that judgment be
entered up against Nathnniel Dick and Janes
Dick, for the sum of 10,000 dollars each, with
six per centum interest from the 2d day of Jan-
uary, 1830, until paid, and the costs.' Aa by
the inspection of the transcript of the record
of the said District Court, which was broujrht
into the Supreme Court of the United States
by virtue of a writ of error, agreeably to the
act of Congress in such case made and provided,
fully and at large appears.
"And whereas in the present Term of Janu-
ary, in tbe year of our Lord one thousand
eight hundred and thirty-two, the said cause
came on to be heard before the aaid Supreme
Court, on the said transcript of the record, and
was ar^ed by counsel ; on consideration where-
of, it !• adjudged and ordered by this court
that the judgment of the said District Court in
this cause be, and the same is hereby reversed!
and that this cause be, and tbe same is hereb^
remanded to the said District Court, with di-
rection to award a venire facias de novo.
"You, therefore, are hereby commanded
that such farther proceedings be had in said
cause, as according to right, justice, and the
laws of the United States ought to be had, tbe
said writ of error notwithstanding."
Farther proceedings took place in the cause
In the Diatrict Court, which are stated at large
in the opinion of the court. A verdict waa
rendered a^inst the United States; and ex-
ceptions being taken to the charge of tlie court,
the United States prosecuted this writ of error.
The case was argued by Mr. Butter, At-
torney-General, for the United States. No
counsel appeared for the defendants in error.
He stated that, on the former trial in the
District Court, the allegation was that certain
sums had been paid at the treasury which had
not been allowed in favor of the defendant,
Nathaniel Cox. These claims were not tbe
matters of defense on the second trial ; but it
was alleged that balances were due to Cox, oa
a separate transaction with the United States,
and 'which were the subject of a sepa- [*12S
rate suit between the defendant. Cox, and tbe
UniUd SUtes. The original claim on the de-
fendant was for upwards $IS,000, which waa
reduced by payments into the treasury to $2,-
870.62. It IB admitted that Nathaniel Cox ia
entitled to a further credit of Sl,320, althoitsb
the same was not regularly established in ue
District Court; and this sum may be allowed
to him as an offset to the judgment to which,
on this record, the United States are, en-
titled. To admit this sura to bis credit, ia
the present state of tbe case, would reduce the
claim of the United States below the amount
required to sustain the jurisdiction of the
court; and it is now acknowledged that tbia
credit shall be ultimately allowed; but in such
a form as that this court can retain and decide
the case.
The United States object to tbe Items of
credit claimed by Cox, the defendant in error)
not only on account of the Irr^ularity of tbe
proceedings, but also because they are aot
Paten l«i
The Uains Btates v. Thi Heiu or Hawxiks.
in
mdlU to whleli lu fffta in mj mKnnEr enti-
tkd.
On the Urt trfal in the District Court these
cndita were objtc(«d to. They had not been
claimed at the treasury prior to the institutian
af the suit; but hefore the eecond trial they
were eihibited ikt the treasury, and they were
refused. At this trial, a(t«r the msndale, tbey
were admitted; the DistTlet Court oomtidering
the ease aa atandiiig In the titiution of a new
Theae erediti. now objected to, and which
were improperly allowed to go to the jury,
were claimed in a supplemental answer likil
after the mandate on the 10th of March, 1834.
They were tbe sum of t5,840.S4, paid b,v reason
of certain checks, etc., issued by Purser Wilk-
inson, and disallowed at the treaaury; and atsu
the auni of eii433.12, also paid under the same
drcumatancea. Mr. Cox bad b<!en appointed
nSTy agent after the death of Hawkins.
It WKs contended that the objections to tb
daims of credit were well taken by the district
Kttomey of Louisiana, in the bills of excep-
tions, OD two grounds;
1. It did not appear that tbe doeuniCnts to
sustain them had been presented to tbe proper
officers of the treasuiy before the eonuneiice-
ment of this auit by petition, filed October lu,
1823.
2. That it appeared that those sums had been
•Ireadr allowed to Purser Wilkinson.
■ It*} ■Notwithat&nding these objections, the
listrict judge allowed them to be read in
'lence, as competent testimony. Tin- c
itated to the ju^ that although the credits had
•een allowed to Purser Wilkinson, it was no
reaaon they should not be allowed to Mr. Cos,
If the jary thought tbey were equitably due.
Ur. Jnatiee Wayne delivered tbe opinion of
tie court:
On the 19th October, 1825, the United Statea
instituted a auit In the District Court of the
United States for the Eastern District of Loui
siana, according to the practice of thnt State.
upon a bond of Joseph U. Hawkins, an princi-
pal, and Nathaniel Cox and John Dick, a^
SBreties, in the penalty of twenty tbousiind dol-
lars, with tbe condition "that if Jo.teph H.
EawIciDB shall regularly aceount, when thereto
nquired, for all public moneys, received by
him, from time to time, and for all pulilic
property committed to his care, with such per-
son or persons, officer or officers of the govem-
Brnt of the United States, aa shall be dul]
authorixed to settle and adjust his accaiinla,
and shall, moreover, pay over, as mny be di.
reeled, mny sum or sums that mny be found
dna to tbe United States upon any such settle-
ment or settlements, and shall faithfully dis-
charge, in every respect, tbe trust reposed in
Um, th«i the said obligation to be void and of
BO effect, otherwiae to remain in full force and
virtue;" and aasignFd as a breach of the condi-
tion of the bond Uiat the said Hawkins did not
la bia lifetime regularly account for all the
Voblie moneys received by him, etc., hut did at
his death remain indebted to the United States
in the sum of fifteen thousand five hundred and
Bftj-three dollars and eighteen centa, foe moneyi
reeetTed by him aa navj agent tna the United
• Ih ad.
States, since tbe date of the bond. Hawkins
being dead, and without Ir([al reprtsentatives,
and Dick, ons of his securities, being also dead
at tlie time of the Institution of tlie suit, but
having legal representatives; the latter with
Cox, the othei surely of HawkfnSr appeared
according to the practice of Louiaiaiia, and
put in separate answers and defenses.
A verdict was found for the United States,
and judgment entered up against the estate
of John Dick and Nathaniel 'Cox, joint- ('ISO
ly and severally, for Llie sum nf twenty thou-
sand dollars; and also against Nathaniel Dick
and James Dick, the representatives of John
Dick, for tbe suni of ten thousand dollarji
each. The defendants then paid into court the
sum of twelve thousand six hundred and
eighty-two dollnri and forty six cents, on ac
count of the judgment, and sued out separate
writs of error to this court; and the jud;;nient
was reversed, as may be seen by tbe report
of the case in 0 Peters, IT2, with directions to
award a venire facias de novo. Upon tlie re-
lurn of the mandate, the defendant Cox poti-
tionrd the District Court to be allowed to file
a supplemental ansu-er, in which he pleads,
as a set-olT, debts alleged to be due to him
by the United States ; one in his oivn right
of £1,320.27, balance on aceount in bin capaci-
ty of United States navy agent, settled at thi
Treasury Det>arlinent, as appears by a certi
fled cop}- filed in another suit in said court;
and two other sums alleged to be due to him
by the United States, tor payments made hj
him, in his capacity of navy agent, on account
of the United States, upon the checks and
vouchers of one Joseph B. Wilkinson, then a
purser of the United SUtes on the Orli-nns
station; which he states had been presented
and disallowed at the Treasury Department.
Against the defendant's application to file the
supplemental answer, the district attorney of
the United SUtes objected, "that tbe suras
placed aa set-off were foreign to the matters
in controversy between the parties;" and,
second, "that the sums cannot be admitted
as a credit at the trial of the cause, under
the third and fourth sections of the Act of
Congress of the 3d March, 1797, inarimuch as
the same were not, previous to the commence-
ment of this suit, submitted to the accounting
officers of the treasury, and rejected." The
objections of the district attorney were over-
led by the court, leave was given to file th|
iswer; the court expressing its opinion, "that
e mandate of the Supreme Court orderinc a
w Iriali authorized tlie plea to be filed, and
that the delendant might equitably he allowed,
under the said act n{ Congress, to establish, by
proof, the sums claimed to be due by way of
awer to be filed, or to a defendant uiK
facias de novo to amend, to enable him to avait
~ mself 'of a proper defense, which be [*1S1
had not pleaded on the first trial, we will her»
merely remark that the objections of the dis-
trict attorney should have prevailed against tht
allowance of it in this instance, (or reasons
which will be found to apply when we shall
discuss the exceptions taken by tbe district at-
toroe; to tbe judgment, b; which this cr — *- —
til
131
SUFBEUE COUBT Ot TBM UniTBD STATU.
IBM
again been brought to the Supreme Coart by
»rit of error.
L'pon the supplemental answer, however, the
oause was carried to trial. The district attor-
ney objected to the introduction of certain bills,
orders, or documents offered by the defendant
KB evidence to sustain the set-oJT in his su
mental answer, on the ground that they
not "sustained b; bills or receipts showing tlie
same were paid to persons in public service, oi
for fumtshing materials or articles for publii
service, or that they had been approved by thi
commanding naval officer at New Orleans.'
"That it does not appear that the documents
billa. or orders had been presented to tin
proper accounting oflicers and disallowed pre
viouB to the com in en cement of this suit.
"That it appeared from the document that
the sums mentioned in it and claimed as a set-
off by Cox, the defendant, bad been already al-
lowed by Purser Wilkinson."
The court overruled the objection a, per-
mitted the bill and vouchers to be read to the
jury, expressing its opinion that they wen
"comppltnt testimony to be weighed hy thi
jury, and that the mandate of the Suprenii
Court requiring the cause to be sent back with
directions to issue a venire de novo, miglit prop-
erly be regarded as equivalent to a new suit
within the statute."
Without going into the doctrine In what
coses, or tor what causes, a venire de novo will
be directed. It is sufficient for us to say (though
It is frei^uently awarded by a court of error
upon a bill of exceptions, to enable parties to
unend, and though amendments may, in the
sound discretion of the court, upon a new trial,
be pemiittedl the venire de novo is, in no in-
stance, anything more than an order for a new
trial in a cause in which the verdict or judg-
ment is erroneous in matt«r of law; and is
never "equivalent to a new suit." No statuto
of the Unite'. States alters the law in this re-
in regard to so much of the exception which
1»9*1 objects to the introduction 'of the bills,
orders, or dociimcnls claimed as credits in the
defendants' supplemrntal aiiswer — fieeause they
had not been presented to the proper account-
ing officers, and disallowed previous to the
commencement of the suit — we remark: it has
never been the practice of the circuit courts. In
suits under the law of the 3d March, 1797, to
deny to defendants a claiin for credits against
the United Stutea because they had not been
presented and disallowed before the commence-
ment of the suit- The practice to allow a claim
for credits, after the suit has been commenced,
is sustained b? the spirit and letter nf the third
and fourth sections of the statute. When a de-
fendant seeks to obt&in a continuance to pre-
vent judgment from being granted to the
United Stales at the return t«rm of the cause,
he is required, by the third section, to make
oatb or affirmation that he is equitably entitled
to credits which had been, previous to the com-
mencement of the suit, submitted to the con-
si deration of the accounting officers of the
Treasury Department and rejected; but the
fourth section, which directs that no claim for
a eredit shall be admitted upon trial but such
as shall appear to have been presented to the
ftceountine offiixn of the trekaury, and by them
K1S
disallowed, the words, "previous to the con-
mencemeut of the anit" are omitted; and
farther provision is made for a claim for cred-
its, at the time of trial, when it shall be proved
to the satisfaction of the court that the defend-
ant is in possession of vouchers not befors
in his power to procure, and that he was pre-
vented from eihihiting a claim for such credits
at the treasury by absence from the United
States, or some unavoidable aeddent. Thus
showing it to be an inflexible requirement of
the statuto that the defendant shall have had
his claim for credits disallowed, before he can
prevent tlie United States from getting judg-
ment at the return torm by a continuance of
the cause; and that he may have them snb-
mitted to a jury at the trial, if they have been
refused by the accounting ofScers of the treas-
ury after the suit has been instituted, or if be
can bring himself within either of the liberal
provisions of the fourth seetion of the Aet si
3d Uarch, 17B7- Snch was the constniction
given by this court to the third and fouitt
sections of that act, In the case of The United
States V. Giles et al. 9 Cranch, 212; sad Ur.
Justice Story, giving *tbe opinion of the [*1I3
court in the case of The United States v. Wil-
kins, 6 Wheaton, 136, says, the fourth sertin
"prohibits no claim for any credits which have
been disallowed at the treasury, from being giv-
en in evidence hy the defendant at the time of
trial." The statute prevents delinquent offleert
from delaying the United States by frivolous
pretenses from obtaining judgment at the re-
turn term, gives to the defendant tlie full bane-
fit of having every credit to which he may sap-
pose himself equitably entitled, and which has
been disallcwed, passed upon hy a jury; and
guards the district attorney from surprise by
informing him, through the Treasury Depart-
ment, before the time of trial, of the cKdtts
which have been claimed, and the reasons for
the rejection of them. All the provisions ot
this statute regulating the institution of suit*
and the recovery by judgment ot unpaid bal-
ances from delinquent officers, are as much a
part ot their bonds as If they were recited in
them ; and officers and their securities are, in
contemplation of law, apprised of those provf-
is, when their bonds are executed. Whilst
conclusion, therefore, is that a defendant ii
not prevented from claiming the benefit of cred-
''' ~rhich may not have been disallowed before
ioinmencement of the suit, we do not mean
to say that the credits claimed by the defend-
ant in his supplemental answer were proper ev-
idence in this cause.
We will now consider the abjections to tha
credits claimed by the defendant Cox for p*7-
ments said to have been made by him on the
bills and orders of Purser Wilkinsoa, which
allowed to be given as evidence to the
jury; the court giving its opinion "that, ^
igh the credits had been allowed to Wilkin-
it was no reason why they should not be
allowed to Cox, if the jury thought tliey were
uitably due." This misdirection of the court
'Dse from its mtsunderstonding the oflicial re-
tions between pursers and navy agents, and
their separate accountability to the govemment.
Both are disbursing officers, whose sccounta
are separately kept at the Treasury Dep»a-t-
nenti It being the dnty of the navy ageait.
retera 1*.
Etxnvn t. Bwaitwout.
IS)
a be bu tmadt of ilia yonrnment
on hsnd.
e purrer*
for TDweji tb« Utter Ming sanctioned b; the
Ural offioer commaindmg the ■tation. The
purMr'i receipt to the navy agent upon such n
tS4'] tequiBition *i» bis voucher for a credit
at the treasury; and the sum received by IIh-
pnner is disbursed b; liim in paying officers
■ d leamen, and for sach supplies tor the
en for credits against the sum received by bim
from the navy agent; but before the purser's
accounts can be settled at the treasury, tbc
original receipts are deposited by him in that
department. It follows, then, tliat credits
which have been allowed to the purser caniiot
bt afterwards claimed by tlic navy agent, with-
ont giving to him a credit twice for the same
mm; the amount of the receipts in detail, and
the purser's requisition upon him in gross.
Nor can the navy agent ever make a claim tor
inch credits, without having tlrst violated hia
inatnictions for the disbursement of govern-
If a navy agent, without a receipt from a
purser upon a requisition for money, volun-
teer* to pay demands wliich it is the purser's
duty to pay, or sliall pay the orders of a pur-
•er, and shall permit the receipts for the sums
paid by him to get into the purser's possession,
Dy whom tbey are exhibited at the treasury
ind alloned in the final settlement of his ac-
count, without the purser's having given credit
to the navy agent or to the Government for
the amount, it assumes the character of a
private transaction between the purser and the
OBTy agent, or becomes a debt due from the
parser, as on individual, to the navy agent, as
s private person; and the latter cannot claim
the amount at the trcasui'y as an allowance in
the settlement of his account, nor as a legal or
equitable credit in a suit against him by the
United States. Such is the attitude of the de-
fendant. Cox, in the claim which he makes for
credits on account of the orders of Purser
Wilkinson, and such would have been the re-
latione between him. Purser Wilkinson, and
tta government, if he had sustained, by proof,
the allegations in his supplemental answer, that
he had p>id, in his character of navy agent, and
tor the use of the United SUtes, the bills and
orders of Purser Wilkinson. But there is no
luch proof. The document which the court
permitted to be given m evidence, and the only
evidence upon which the defendant relies,
shows that the credita claimed by him had been
allowed to Purser Wilkinson on the settlement
tSS*] of hii account; and it does not 'show
any eoaneetion between them entitling the de-
foidaQt, upon >iy e<}uitable ground, to credit
for any one of the items in that account. If he
has any claim upon the conscience of Purser
Wilkinson, it must rest upon both having dis-
r^arded those regulations for the diebursement
of public funds, which, when observed, are a
imttection to each, and which only preserve
that reeponsibilit^ between the iifHcer and the
rrament required by the pxihlic interest,
inch a case, the defendant must look to
Poraer Wilkinson. The governmoDt is not to
b* involved In tlie consequence* to either, re-
sulting from ftu irregular diabnrtemest of it*
• L. «d.
fund*. If, at may hav« been the ease fat this
instance, Purser Wilkinson, to oblige a dir
charged mariner, or one to whom his pay was
[lue, when there was no funds on hand to pay
him, assumed by his duebill or order, thfl
amount due, to enable the mariner to have it
cashed by anyone who would make him the
advance, having taken a receipt oRlcially for
the sum due by the government; and the navy
Hgent afterwards took up the purser's duebill ;
lie did it for the honor of the purser, and must
look to him for repayment. He has not the
purser's receipt for the money, but hi^ duebill,
which, if even signed by the commanding offi-
cer of the station, and bearing upon it* face
a connection with the original transaction be-
tween the seaman and the service, nould not
give to the navy agent a legol or equitalilc claiia
for a credit at the treasury, because the purser
cannot be debited there for any money for which
he has not given his receipt in due form.
The judgment of the court belov
and llie cause sent back wil
It Is admitted by the Attorney -Genera I that
the defendant may be credited with the sum of
thirteen hundred and twenty dollars and
seventy-seven cents; that sum being really due
to him from the treasury; the balance claimed
by the eovemment being fifteen hundred anil
fifty dollars and forty-five cent*.
This cause came on to be heard on the tran-
script of the record from the District Court oF
the United States for the Eastern District of
I^uisiana, and was argued by counsel; on con-
sideration whereof, it is ordered and adjudged
by this court that the 'judgment of the I*1S6
said District Court in this cause be, and the
same is hereby reversed; and that this causa
be, and the same is hereby remanded to the
said District Court, with directions to award a
venire facias de novo.
•NEI>SON J. ELUOTT ('iST
T.
SAMUEL 8WARTW0UT.
Construction of revenue laws — money volun-
tarily paid in mistake of law — liability of
col lector.
Onder the Act of Congress psxsed o
Jnl7. 1882, entitled "An Act to Bitei
"■- ' --•- Imposing dullts i
th cotton bordt^i-B,
the several .
the 11th of
ind amend
come ■ settled rule 1
of this description l<
ed by tr- ■—'-'-•-
lod Bp])) lea Hon bf
It Interpi-etsllon ot staliitea
and particularly in the Se-
DnderstBDdlDK of Ihe Ii
A collector of the reveiiQe is uul jifiMuniiJij hbdib
In in action te recover back bd excess at duties
lisld. as collector, and bj him In the recular or
ordlnarv course of bU duty paid into [he Tieosurf
ol the United States; be. the coUeclur, acting Id
As' to payment of dutiea under protest, aea aot*
I 13 u ed. u. a- sea.
Sttfuuk Coun or tbb UNmo Biatm.
lOcHl ftlth. anf, onitt lutmefloni from the TrM*-
aiT DcMrtmcTit. aod no protnt brloR mkdt tt tbe
lime or parmiMit, or notke not to t>V tbe money
OTpr, or Inlenllan to sue to recover back tbe
amount glwfo bim.
la casp of n ToluDtarjr payment by mere mlitahe
Tbe conKtiiicttoD of tbe law la opcD to botb par-
Uea, and eacb preaDmed to know It.
Any iDBtrui'dnnfi of Che Trea*ur; Departmeat to
tbe collector could iiol cbancc the law or alTect tbe
right* at a party lajiired by Ibem. lie waa not
wai at liberty to Judge for blmatlf aad act accord-
InBly. Thpflp Imtiiicclonii from the iienaury Berm
to be throwa Into tbe quFRtlon In (blB cnie (or tbe
turjKtac ol Bbowlo^, twj'ODd all doutil, that the col-
^ctor RclFd la good [alth. To make the eollcctar
out any latlmatlOD hailag beea given tbat the duty
BUS not legnlly charged, cannot lie sustained uiion
any sound principle of policy or of law. There can
be no banlBblp la reqnlrlnc tbe party to elva no-
tice to the collector (hat he consldera the duty
Clalmeil Illegal; to put blm on hli guard, by re-
SDlrlng hloi not to pay over tbe maoey. The col-
:ctor would then be placed la a altuatloa to claim
an Indemnity from the gorernmenl. But If the
party li entirely allent, and do Intimation of an In-
tention to seek a repayment of the money, ttiere
can be no ground upon wtlch the collet" "
n tbe D
call II
n tbe B
ed !<talea. It Is ttir case o( a TOlootary payment
DBder a mistake of law. and the money paid over
ordinary course of bis duly Into tbe Treasury ol
the United Btates, he, the collector, acting In good
faltb. and nnder Initructlona from the Treasury
DepartmenC. a notice baring 1:«pn given him at
the time of payment, that the duties were cbirt'ed
too bigb, and that tbe party paving, so paid to get
posseBBloa of hla goodi. and Intended to aue, to
recover back tbe amount erroneously paid : and *
notice not to pay over the amount Into tbe treai-
lAft*} 'It la the aettled doctrine of tbe law that
where money Is IIIeBall* demanded and rcci'lved
by nn agent, he cannot eaoaerate himself from
peraoaal reBponsIblllty by paying It over to bis
principal, when he baa bad not let not to pay it
)N & certiflcnte of dtvislon from the Circuit
Court of the United States for the Bouth-
m District of New York.
The auit wma origitially fnatituted In the
lector of the port of New York ; and was re-
moved by certiorari into the Circuit Court of
the United Rtatea.
The action waa aoaumpBit, to recover from
the defendant the sum of thirtjr-one hundred
dollars giTid seventy-eight cents, received by
him for duties, as collector of the port of New
York, on an importation of worsted shawls
with cotton borders, snd worsted suspend'
with cotton straps or ends. The duty
section of the Act of the I4th of July, 1832,
entitled "An act to (.Iter and amend the seveml
acta Imposing; duties on imports," u manufsc-
tures oF wool, or of which wool is k component
part. The plch of nonassumpsjt was pleaded
by the defendant in bar of the action.
The fallowing points were presented daring
tbe progress of the trial for the opinion of tbe
iudgen. and on which t)w judges were oppoMd
B opinion)
174
First. Upon the trial of the cause, ft tuLTing
been proved that tbe shawls imported, and
with cotton borders sewed on; and that tbe
suspenders were worsted with cotton ends or
straps; and tbat the worsted was made out of
wool by eombingi and thereby became a dis'
tinct article, well known tn commerce under
the denomination of worsted.
Tbe jndees were divided in opinion .whether
the aatd shawls and suspenders were or were
not a manufacture of wool, or of which wool fa
a component part, within the meaning of the
words "all other manufactures of wool, or of
which woo) is a component part," in the seeond
article of tbe second section of the Act of Con-
gress of the 14th of July, 1B3S.
Second. Whether the collector is personally
liable in an action to recover back an excess of
^ties paid to him as collector, 'and by [*13t
him in the regular or ordinary course of hit
duty paid into the Treasury of the United
States: be, the collector, acting in good faith,
and under instructions from the Treasury De-
partment, and no protest being made at the
time of payment, or notice not to pay the mon-
ey over, or intention to sue to recover back
the amount given him.
Third. Whether the collector is personally
liable in an action to recover back an excess of
duties paid to him as collector, and by him
paid, in the regular and ordinary course of his
duty, into the Treasury of the United States, lie,
the collector, acting in good faith, and under
instructions from the Treasury Department; a
notice having been given at the time of pav'
ment tbat the duties n-ere charged too high.
and that the party paying, so paid to get pos-
session of his goods i and intended to sue to re-
cover back tbe amount erroneously paid, and a
notice not to pay over ttie amount into tfac
treasury."
These several points of disagreement were
oertiiled to this court by the direction of tha
judges of the Circuit Court.
The caae was argued by Mr. Ogden for the
plaintiff, and by Mr. Butler, Attorney-General.
for the d< fendant.
Mr. Ogden stated that the question on the
first point arose under the second clause of the
second section of the Act of Cnngrcsa of I4tli
,lu!y, 1832, "to alter and amend the several
sets imposing duties on imports." The laji-
guage of that part of tbe section, after enumcT-
ating a number of articles on which a specifle
duty ia laid. Is, "and upon merino shawls
made of wool, or of which wool is a component
part, and on ready-made clothing, fifty per
cent, ad valorem." In the act, a duty of ten
per cent, ad valorem is laid on "worsted stuff
goods, shawls, and other manufactures of silk
and worsted, and on worsted yarn, twenty per
cent, ad valorem."
It is contended that the articles imported by
the jilaintifT do not come under the provision of
the law which imposes a duty of fifty per c«nt.
ad valorem on woolen goods; but that the duty
is ten per cent, ad valorem, as they are "worst-
ed goods," or goods of which worsted is the
principal component material.
■Congress draw a distinction between [*14«
worsted and woolen goods. These article* an
Peten 1«.
ISM
Elliott ». SwAtrvoct.
140
wonted snsp«ndera witli cotton ends. The
slnwls tn worsted sbawlg with cottan borders.
Wonted is made of wool, but it undergnes *
particular process of carding and combing. It
becomes, bv the prowsn, "a distinct article."
Tlie certificate of tlie judges states the fact
that although worsted "is made out of wool bj
cuuibing, it becomes a distinct article, known
in commerce under the denomination of
CoDgresa are to be considered as using terms
of art and commercial terms, aa thej are gen-
erally used and generally understood. This
has been so decided in this court, in the case
of The United SUtea v. 200 Chests ot Tea, 0
ttTieat. 230. Tlie question in that case was
whether certain tea was "boliea tea." It was
proved that the tea was, in the common Ian
silage of commerce, called bohea tea, although
It was rot in truth ao cftllitd in the country
from which it w«a brouj>ht. If this settles the
law of tbe case, it decides the question in the
ease before the court; for the articles upi^n
vhich the higher duties are claimed are not
"wool" but "worsted," and well known In
commerce under this denomination. It will
then be for this court to say, on the flrst point,
whether the articles are "wool" or "worsted."
The second point presents the question of
the personal responsibility of the collector, on
the payment of duties to him which he has il-
l^ally exacted. The duties thus demanded
were paid by compulsion. Unless paid, the
gnoda would not have been delivered to the
owner, and thus this bei^ame a compulsory
payment. If the duties were not due, their pay-
ment gives no right to retain them.
3. The payment of the illegal duties gave the
collector no right to them, and the collector
cannot discharge himself by paying over the
money 1 Camp. N. P. 39B. This was a
ease in which money was illegally claimed by
overseers, and was paid over to their succes-
sors; but tliPT were not protected from person-
al responsibility by the payment. If it was il-
legally demanded, it was illegally paid over by
the collector. But in the point certified, the
fact of a notice having been given that the du-
ties were too high charged, is stated) and the
collector was informed that an action would
be brought against him to recover back tbe
141*] 'amount erroneously paid. It is a gen-
eral principle of taw that, under such circum-
•tanees, the money may be recovered back.
The Attorney-General, Mr. Butler, for the de-
fendant.
On the first point it is insisted, on the part
of the defendant, that the shawls and suspend-
ers were a manufacture of wool, or of which
wool is a component part, within the meaning
of tbe words "all other manuFactures of wool.
or of wbieh wool is a component part," in the
■eeond article of the second section of the Act
of Congress of the 14th of July, IB32. Laws U.
S., seasions 1B32, p. 187. In support of which
~' r of the subject, tbe following reaaons are
•Dggested,
17 The I
[, viz.
. Tfae articles in question do not come with-
in the third article of the section above re
fcrred to, and are not manufactured of cotton,
or of which cotton is a component part; and
therefore subject only to a duty of twenty-
flve per eeot. sd Taloranii but aa tlw cotton
borders and cotton straps ar« merely adjunct*
or acceasorieg to the shawls and suspenders, the
entire article ia liable to the rate of duty im-
posed upon that component part, which is most
essential for tbe formation of the entire article,
and is of the greatest intrinsic value.
2. The duties upon the articles in question
are therefore to be determined solely by the
words and intention of the second article of
said second section ; and as shawls and suspend-
ers are not specifically enumerated, it is respect-
fully insisted that they come witliin the gener-
al concluding clause.
3. The Tariir Act of May 22, 18Z4 (see. 1,
vol. VII., p. 200} shows the underatatiding of
Congress in their legislation upon the subject
to be that worsted goods are woolen goods; else,
why except worsted goods eo momel for if
they were not to be deraicd woolen, they could
not be included in a general clause relative to
woolen, and the exception would be surplus-
age. Worsted goods, although made of wool
which has undergone a dilferent process, to
wit, "combing," from wool employed in vari-
ous other manufactures, are still manulactures
of wool. Tbe case admits that it is wool pre-
pared to a certain state; and until it can be
shown that any other raw material, as cotton,
fituc, etc., is usually manufactured into the in-
termediate stage denominated '"worst- [*142
ed," then it folloiva that worsted can have no
existence except aa a manufacture of wool.
4. Whatever weight might, in a case of
doubtful construction, be attached to the con-
sideration that worsted being nia<le out of wool
by combing "thereby became a distinct article,
well known in commerce under the denomina-
tion ot worsted," no understanding, either of
merchants or others, can countervail either the
express language of a statute or the meaning
of tbe Legislature to be derived from the lan-
guage they have employed. The language
and intention of the statute are so explicit aa
to preclude the admission of extrinsic evidence
tor settling their interpretation. In The Unit-
ed States V. Clarke, S Mason, 32, Judge Story
clearly understands that an article composed of
worsted is "a fabric of which wool is a compo-
nent material." Faw t. Marsteller, 2 Cranch,
23, shows that the general words of a low are
not to be restrained by implication, "unless
that implication by very clear, necessary, and
irresistible." The United States v. Fisher, 2
Cranch, 380. "Where the intent is plain,
nothing is left to construction."
5. If Congress had intended to discriminate
between woolen and worsted, they would, in
some manner, have expressril their intention,
either by enumerating all the speciBc worsted
articles subject to duty, or by introducing a
general clause relative to worsted similar to
that respecting woolen.
6. It is incumbent on the plaintilT to show
that these goods were expressly excepted by
some special provision of Uie law from the op-
eration ot the general clause; if no such ex-
ception shall be shown, these articles necessari-
ly fall within the general clause, and are sub-
ject to a duty of flfty per cent.
1. Shawls and suspenders are not woiated
stufT goods, within the meaning ot the second
article; aa the tarm wonted atoff good* applies
X75
Botbeui Coubt or tub Unrm Statu.
OAlf to ftrtlcle* known In commerM ai ptec*
goods, and such u are sold bj the yard.
On the secuna puint, it is insisted, on the part
of the defendant, that a collector of the customs
ia not personally liable in an actioa to recover
tMU:k an excesa of duties paid to bim aa collect-
or; and, in the regular ordinary course ot his
dutj, paid iuto the Treasury of the United
143*] States; he, the collector, acting *in good
faith, and under instructioDi from the Treasury
Department, and no protest being made at the
time of payment, ano no notice not to pay the
money over, or intention to sue to recover back
the amount paid, given him. Because,
1. No action lies to recover back money paid
voluntarily and witlioiit conipulsinn. where the
party receiving the money is not guilty of fraud,
and where both parties are equally cognizant of
the facta upon which their rights depend.
Oower V. Popkin, 2 SUrlde, 63; Fowler v.
Shearer, 7 Maes. Rep. 14; Bilbie v. Lumley, 2
East Rep. 460.
2. The collector being merely an agent, no
action to recover back money will lie against
him) in those cases in which an agent of any
ather description or charaeter would not be
liable.
3. An agent's liability to refund does not ex-
tend beyond that of his principal, where ihe
payment has been made directly to biin. There-
lore, a voluntary and bona tide payment to an
Agent is the same, as regards the rights of the
okimant, as if the payment had been made to
the principal himself. It is money had and le-
eeived by the agent to the use of his principali
and not ot the party paying it.
4. The money having been received by the
gollcctor, in good faith, and having been paid
over by him to the treasury, in the r^ular
course of his duty, without protest or notice
from the plaihtilT; he is not liable to t!ie plain-
tiff, even admitting that a voluntary and bona
flde payment to the principal may, under any
circumstances, be revoked. Saddler v. Evans,
4 Burr. 1085; Buller v. Harrison, Cowp. 565;
Btevenson v. Mortimer, Cowp. 806.
5. The collector, being a revenue officer, can-
not be called on to refund money which be has
bona fide received in his ofHcial capacity; even
It an ordinary agent might, under similar clr'
eumstances, be reauired to refund. An action
tor money had and received will not lie against
A revenue officer for an overpayment. White-
bread T. Brooksbank, Cowp. 00.
6. The present action is, in effect and sub-
stantially, an action to try a right; that is, the
right of the United States to claim duties upon
certain goods, at a higher rate than admitted
by the importer. A question of this nature, so
144*] far from being triable *in an action
Against the Agent, cannot be Introduced in an
action for money bad And received, wherein
the person paying and the principal are the im-
mediate parties. Lin don v. Hooper, Cowp.
414; Btaplefleld t. Yewd, Bull. N. P. 133; Pot-
ter v. Bermiss, 1 Johns. Rep. &]6.
On the third point, it is insisted, or the part
of the defendant, that the collector is not per-
•onally liable in an action to recover back an
excess of duties paid to him as collector, and
by him paid in the regular and ordinary course
of his duty into the Treasury of the United
6tAt«i: he, the collector. Acting in good faith,
S7«
and under instmotloiM from the Treaanir De-
partment, a notice having been given at the
time of payment that the duties were ehAised
too high, and that the party paying, so paia tr
get possession of his goods, and intended to stM
to recover back the amount erroneoualy paid,
and a notice not to pay over the amount intd
the treasury.
Tht general propositions presented under the
second point are fully applicable to the present:
and it is therefore unnecessary to reiterata
them, further than as may be necessary to mbom
the applicability to this head.
The additional facts presented by thit third
point do not vary the result, to which It la re-
spectfully insisted the court must arrive, upon
a consideration of the questions Arising under
the second traint.
These additionAl facta do not vary •noh n-
suit, for the following reasons;
1. It was a voluntAry payment; becauM^ tbe
Eart^ making it was apprised, at the time, of
is right to reeist, or withhold payment; as tbe
case expressly states, it was at the time of paj-
ment that notice was given that the duties were
charged too high, and that the party paying, so
paid to get possession of his goods; intended to
sue to recover back the amount erroneously
paid, and gave a notice not to pay over the
amount into the treasury. Brown v. McKln-
ally, 1 Esp. Rep. 279; Greenway v. Hurd, 4
Term. Rep. 6S:i; Pulliam v. Down, 6 Eap.
Rep. 2Sn; Mowatt v. Wright, 1 Wendall. 355.
2. The plaintiff's notice of an intention to sue
to recover back the amount erroneously paid,
is inconsistent with the previous 'part ['149
of his notice, as stated in the case, to wtt, "that
the duties were charged too high." He was
cogni^nt of all his rights both in fact and in
law, and, if believing he was under no obliga-
tion to pay the money, Iip notwithstanding paid
it, it is still a mere voluntary payment; for
which, if he could have no claim against the
principal, still less can he demand reatitution
of the Agent.
3. Both parties were acting In good faith,
and supposing that they understood their mu-
tual rights. The ptaintilf, believing that he
WAS not bound to pay duties at the rate de-
manded, and the collector, believing that he
was entitled to demand and receive at that rate,
the plaintiff notwithstanding pays the denatuid.
All pretenap, then, of ignorance on the one part,
of hie rights, and of fraud and bad faith on the
other, being expressly Tiegatived; has the plain-
tiff shown any additional circumstance on
which to support his actioni It is merely
stated that "he so paid to get possession ol his
4. It Is not denied that an illegal and emn-
pulsory payment may be the foundation of an
action; but the payment must be both illcgml
and compulsory: admitting, then, that the col-
lector misconstrued the law, or to speak more
correctly, that he applied the law, aa It had
been construed by his official superiors; yet, in
the absence of mala tides, it is necessary for the
plaintiff to show fully and satisfactorily that
the pas^ient was compulsory. It is not enough
to allege that be paid the money to get posaea-
sion of his goods; but be must show that the
immediate possession of the goods was eo neoea-
SAry and urgent aa not ta Admit the delay of a
ret«rs I*.
Bluor r. BwAXTwatft.
M
Jodklal or anthorlUUn deeiBion on ths right.
Aihlej T. Uejnnl.la, Str. &16. I'liat a p4rty
might protect himscIF b; « replevin, ia an
uuver to an action fur money had and received.
under threat of a diatreas for rent. 1 E»p. Bep.
U.
The circumataoce that in tbis ca*e tlie plain-
tiffs had an option to give a bond for the du-
tid, in a suit upon which the validity of the
demand could havi been put in issue, repela all
idea that this was a compulsory payment.
S. Admitting that a party paying money to
an ^ent under miBapprehenaion, either of fact
or law; may, after becoming aware of the mis-
take, treat the agent aa a mere stakchotder, and
14B*] 'suspend the money in his hands by a
Dotioe Dot to pay it over; yet in thia instance
there was no notice within the scope and mean- ;
ii% of the rule alluded to. The notice given
wai simuitaneous with the paymen!; wliicb was
made knowingljr and deliberately, and was re-
Kired fairly and bonestly. The coteiuporane-
01U notice of protest, therefore, doea not render
it the less a voluntary payment.
t. Admitting that a notice given subsequent
to payment would, in the case of an ordinary
■gent or factor, detain the money in his bands;
the rule does not apply to a ministerial officer
if the gDvemmeot, who is bound to pay the
money "in the regular and ordinary course of
his duty into the Treasury of the United States,"
ud who has actually so paid it. See Act
Uarch 2, ITSg, aee. 21 ; 3 Laws U. S. p. 1S7.
Upm receipt of it by him, he was, as regards
(he payer, functus ofncio. If he refuses or neg-
lects to pay it into the treasury, the treasury
slone can require it of him, and the payer must
look to the government (or re-imbur»ement.
7. The collector is not an agent or factor,
■JUiin the usual understanding of the term.
Be is a mere ministerial officer bound to receive
■hat the law and the instructions of his su-
perior require him to receivs, and bound to pay
over when, in what manner, and to whom the
law and those inatructions may direct. The
pteuliar character of a collector, as difTerent
and distinct from that of an ordinary agent,
■ill clearly appear from an examinatioa of the
Act of March 2, 1799 (sec. 62, 05; 3 Laws U.
S. 103, 198). He has no common law lien,
eitlter general or special, upon the funds in his
liands. If a collector is liable to an action in
a ease like thia, as well may a suit be brought
(gainst a merchant's clerk, who has received
money on hia master'a account, to which the
latter was not entitled.
8. Although ft Is not pretended that the com.
mand of a superior justifies the tort or trespass
of his Inferior, still the general policy of the
law require* that ministerial officers, and par-
tjcalarly offifwrs of the revenue, should be pro-
tected where they have acted in good faith un-
der the instructions of their superior; especial-
ly in those instances in which the law itself
niacta an implicit obedience to those inatruc-
14T*] *9. Such, also, ia the general policy
of the revenue laws of the United States, by
■hich the direction and superintendence of the
collection of duties is ncpressly delegated to
the Treaaury Department.
10. If it had lieen th* intontlon of fht plain-
US to resist tlM p^nrat 9t dutiti^ W ought.
inat«ad of paying the aaMimt at the time, to
have given a bond in the usual manner; and
tlien in a suit upon the bond he could have
aliown that the duties had been improperly
liquidated, li^x-parte Davenport, Q Peters,
Gtll; The United States v. Phelps, e Peters,
TOO. As he bad an option in this respect either
to pay the duties or to secure their amount, it
follows that the payment was voluntary; and
there is therefore no rpason why he should be
allowed to liti.^^ulc in a collateral action, and
against a third person, questions which could
bs directly raibed in a direct action between the
parties in interest If the plaintiir's object
was to obtain immediate poBSi<3sion of hia
goods, and if such immediate possession was
indispensable, the foregoing con hi deration neg-
atives all idea that the money was exacted by
taking an undue advantage of his situation.
Mr. Ogden, in reply, contended that Hit true
construction of the act of Congress was that
these goods were to pay no more tlian the low-
est duty. They were worsted— worsted atulf
goods. The language of the section could
only be fairly and reasonably so applied. The
denomination of worsted, wos to be carried on
to shawls, so as to read "worsted shawU." The
article formed by combine the wool, and using
it so as to make worsted from it, became ed-
sentially ditTercnt from the original material.
It was the change produced by tlie miiiiufac-
ture, which placed it on the list of articles sub-
jected to a lower duty. The result of this pro-
cess of manufacture was the subject of regU'
lation by Congress in another article, and a
dilTerence of duty impiised. Woolen yarn is
subject to a duty of twenty per cent., while
worsted yam pays four or fcmr and a half per
cent. Paper Is made from linen; but paper is
Upon the question oF notice; was it neces-
sary to give the collector noticel The collector
was bound to know the law; and if b^ law
the goods were not liable to the duty he insiat-
ed upon, *he is liable, and can have no [*14S
right to notice. It appears that the collector
was instructed to demand the higher duties.
While obedience to his instructions might give
him a full claim to indemnity on the govern-
ment, he is not the less responsible to Individ,
uals. Such instructions are no protection to
him when he violates the law.
It is said the case presented Is thst of a vol-
untary pavment A valuntnry payment, which
can be set up to prevent a recovery Viick of
money paid, can only be where alt the circum-
stances are well known to the parson payinj; ;
and where no constraint exists, and a fi«e and
unlimited action is permitted, to maho or re-
fuse the payment. But in this case, tjie
duties must be paid or bonds given for them,
or the owner could not obtain his goods. Ha
might be entirely ruined by not having the
possession of the goods. He may have made
oontracta for their sale and delivery, the eReota
of a violation of which would be auch as b*
cculd not sustain. Tho case stated in the
points certified, is that the money was paid
to get possession of the goods. This waa in-
But it is aaid the eolleetor was an agent. Be
Is agent of the law, to earry its provisions
iito affectt B* U not an agent for anv filial
ill
t4B
Bdpbbmb Couit of the UmnD STAtn.
purpoaea; ftnd hs is bound to disregard in-
BtnictionB from the department of the govern-
ment having charge of the collection of the
revenue, if uiej are contrary to law. If a col-
lector is an agent of the treasury, tlieo he is
not an agent of the law of the land.
The collector is reipcnsible as a principal,
when be compels the payment of duties; and
he must answer to an injured individual for liis
actions. This ia a respoiiaibiUty from which
he cannot escape.
A Bherifl in levying an execution ia the
agent of the plaintiff, but he cannot protect
himself by this circumstance. He will not
i'uatify hia proceedings by pleading the instruc-
iona of another.
It ia said this ia a question of the right of
the government to compel the payment of
duties. It is not such a aueation ; but it is one
whether the government has a right to collect
excesaiTe dutiea; whether, under tlie right to
collect and compel the payment of actual
duties, too much, more than the law author-
izes, shall be exacted. Too much has been
149'J paid in thia 'caae, and, therefore, the
action for money had and received ia proper.
The EUggestion that there was another rem-
edy, tbat of an action of replevin, ia not cor-
rect. Replevin would not lie. The right of
the United States to retain the gooila subject lo
duties is inilisputable, and until this lien is re-
moved by the payment of tbe same, although
the amount may not be certainly ascertained,
the lien oontinuea, and assures to the United
States the absolute custody of them.
Nor is it admitted that a bond could have
bean given. The delivery of a bond would
hava been an admiaaion that the gooda were
woolen goods; and thus the plHintifT would
have been ea topped from Baying they were
worsted. Without such a bond, tlie goods
could not have been obtained, which would
have been a surrender of the claim in thia suit.
But two modes of proceeding were presented.
Either to take the goods, paying tbe duties
claimed, and to institute an action to recover
bade the excess, or to let them remain in the
lianda of the collector.
Had an action of trover been resorted to,
years would elapse before the termination
of the suit; and, in the mean time, all the
consequences of being kept out of the property
would have been sustained. An application to
Congress for redreaa might have been attended
witli the same delay.
The laws of the United States prescribe tbe
form of bonds for duties; and although the
description of the gooda ia not inserted in the
bond, it is founded on an entry in which they
are described: and, in this case, the defendant
would have required they should he entered as
woolen gooda.
The Attorney- General referred the court to
tbe S2d section of the Act of Congress for the
eollection of duties. The provisions of this
section, taken in connection with those of the
*6th section, provide for the correction of sr-
rors in the computation of duties. Tliis eourt
decided, in Davenport's ease (S Peters), that
these provisions are ta b« liberally eonstiued.
In 8 Pctera, 100, the court decided that a psrty
«u not wtupped, bj giving « bond, Irou
*Mr. Justice Thompson delivered tbe [*lf«
opinion of the court:
This in an action of aaaumpsit to recover from
the defendant the sum of tlirec thousand one
hundred dollara and aeventy eight cents, re-
ceived by him tor duties an collector of tbe
port of New York on an importation of
i'orated ahawls with cotton borders, and
worsted auspeuden with cotton atrapa or ends.
The duty was levied at the rats of flft; per
centum od valorem, under the second article of
the second section of the Act of the 14th of
July, 1632, entitled "An Act to alter and
amend the aeveral acts imposing duties on im-
ports," as manufacturers of wool, or of which
wool was a component part. Upon the trial of
the cause, it appeared that the ahawls import-
ed, and upon which the duty of fifty per
centum nd valorem had I>een received, were
worsted ahawls with cotton borders aened on;
and that the suspenders were worsted with cot-
ton ends or straps. And it appeared in evi-
dence that worsted was made out of wool by
combing, and thereby become a distinct arti-
cle, well known in commerce under the de-
nomination of worsted, and upon the trial, the
Judges were divided In opinion upon the fol-
lowing questions:
1. Whether the said shawls and auapendera
»-ere or were not a manufacture of wool, or of
which wool was a component part, within the
meaning of the words "all other manufactures
of wool, or of which wool is a component
part," in the second article of the second sec-
tion of the Act of Congress of the I4th of
July, in the year 1832.
2. Whether the collector Is personally liable
in an action to recover back an excess of dutiea
paid to bim as collector, and by him in the reg-
ular or ordinary course of his duty paid Into
the Treasury of the United States; he, the col-
lector, acting in good faith, and under instruc-
tions from the Treasury Department; and no
protest being made at the time of payment, or
notice not to pay the money over, or intention
to sue to recover back the amount i^iven him.
3. Whether the collector ia personally linble
in an action to recover back an excess of duties
paid to bim as collector, and by him paid over
in the regular and ordinary course of his duty
into the Treasury of the United States, he, the
collector, acting in good faith, and under in-
ntructions from the Treasury Department, *l
'notice having been given him at tbe [*15l
of payment that the duties were charf^d
sue to recover back the amount erroneously
paid, and a notice not to pay over the amount
into the treasury.
1. The Act of 1B32, In the section undsr
which thia queation arises, after impoainj; s
apeclflc duty on a number of enumerated krti-
cl«s, concludes in theae words: "and upon me-
rino ahawta mad* of wool, all other manufac-
tures of wool, or of which wool ia a component
part, and on resdy-made elothing, fifty per
centum ad valorem." And the only qiiestl-ia
iii'der thia point ia, whether worsted ahnwU
with cotton borders, and wurated suspenHers
eetrn lo.
EUJon T. BwAKTWOOT.
161
wtth Mtton ends or straps, ^re m&DufBcturei of
wool, or of which woo] is g. compjtient part. It
is stated in the point, as a faet, atid to be taken
in c.inne-lioii with the question, tliat worsted
is mnilc out of wool by combing; but that it
Ihioiiips thereby a distinct article, well Icnowa
under the deuomiDatioD of worst-
J.aws imposing duties on importations of
goods are iutended for practical use and appli-
•alion by men engaged in commercei and
hence it haa become a settlrd rule in the inter
pretition of statules of this description, tc
construe the langua^ adopted by the Legisla-
ture, and particularly in the denomination of
arlicles. according to the coinmercia! under-
standing of the terms used. Tbis rule is fully
recognized and established by this court ij "
rase of The 20(1 Chests of Tea, reported
ftTieat. 438. Tbe court there eay the object
of the duty laws fs to raise revenue, and for
this purpose to class substances according to
the general usage and known denominat!
of trade. Whether a. particular article
de'ignatcd by one name or another, in
counLrv of its origin, or whether it were a s
pie or mi.\ed substance, was of no importance
in the view of the Legislature. It applied its
allcntion to the description of articles aa they
derived their appeltations In our own markets,
is our domestic as well as our foreign traffic;
and it would have been as dangerous as useless
to attempt any other clasiiincation than that
dcriied from the actual business of human life.
U being admitted, in this case, that worsted ia
a distinct article, ivell known in commerce un-
152*] dcr 'that denomination, we must nn-
denitsnd Congress as using the term in that
eommercial sense, and as contradistinguished
from wool, and woolen goods, and other well-
known denomination of goods. The classifica-
tion of the article in thie section shows that
Congress had In view a clasa of goods known
*.i worsted goods, as contradistinguished from
wool, and upon which a different duty is laid.
A duty of ten per centum ad valorem Is laid
on worsted stuff goods, shawls, and other
manufactures of silk and worsted, and on
worsted yam, twenty per centum ad valorem.
If, because wori-ted is made of wool, all man-
ufactures of worsted become woolen manufac-
tures, there would be no propriety in enumerat-
ing worsted goods as a distinct class.
Suppose the shawls, in this caae, had been
without borders; they would then have been
mtirely composed of worsted. It could not,
certainty, in such case, be pretended that they
were manufactures of wool, if there Is any dia.
tinction between worsted and wool. Nor would
they be a manufacture of which wool Is a
component part. Bueh manufactures are where
the article is composed of dlfTerent materials
compounded, but these shawls, without tbe
borders, would be entirely worsted, and no com-
pound of dilTerent materials. And If the shawls
without the borders would be worsted, and
not woolen goods, the addition of a cotton
border would not make tliem woolen. If the
border had been wool instead of cotton, it
might with some propriety be said, that wool
may be applied to the snspenden; adding cot-
ton ends or straps to worsted suspenders, can*
not make tliem woolen goods.
This view of tha case would be an answer
to the question as put in the point. The court
is not called upon to say what is the duty im-
posed by tbe law upon these articles, but only
to say whether they are subject to a duty of
fifty per centum ad valorem, as manufactures
of wool, or of wbith wool is a component
part. But aa thia question may arise upon th«
trial, it is proper fur the court to express an
opinion upon it. Tbe question is certainly, as
it respects the suspenders, not free from diOl-
culty. Tbe lan^iage of the act is obscure,
and not susceptible of an interpretation en-
tirely Vat is factory. There is no part (*1SB
of tola section that will cover the goods in
question, except that which Imposes a duty of
ten per centum ad valorem on worsted atull
goods, aba wis, and other manu fact urea of silk
and worsted. This duty is imposed upon
shawls of some description, and none but
worsted would at all answer the denomination.
Merino shawls, made of wool, are specifically
enumerated and made subject to a duty of Bfty
per centum. The clause imposing the duty on
worsteds may well admit of reading "worsted
stuff goods and worsted shawls;" they are cer-
tainly not a manufacture of worsted and silk.
It might be a proper subject of inquiry upon
the trial, whettter shawls of tbis description
are usually denominated worsted shawls in the
market, and if so, the rule of construction al-
luded to would apply to tbs case. At all
events, the answer to be given to the question
as put, must be, that the shawls and suspend-
ers not a manufacture of wool, or of which
wool is a component part.
2. The case put in the second point is where
the collector has received the money in the
ordinary and regular course of bis duty, and
has paid it over Into the treasury, and no ob-
jection made at the time of payment, or at any
time before the money was paid over to the
United States. The manner in which the
question is here put, presents tbe case of a
purely voluntary payment, without objection
or notice not to pay over tbe money, or any
declaration made to the collector of an inten-
to prosecute htm to recover back the mon-
It IS therefore to be considered as a vol-
untary payment, by mutual mistake of law;
and, in such case, no action will lie to recover
hack the money. The construction of the law
open to both parties, and each presumed to
ow it. Any instructions from the Treasury
Department could not change tbe law or effect
" ! rights of the plaintilT. He was not bound
take and adopt that construction. He was
at liberty to judge for himself, and act accord-
' igly. These instructions from the treasury
>em to l)e thrown Into the question for the
purpose of showing, beyond all doubt, that the
collector acted in good faith. To make the
collector answerable, after he had paid over tha
money, without any intimation having been
1 that tbe duty was not legally charged,
cannot be sustained 'upon any sound [*1S4
principles of policy or of law. There can bo
no hardship in requiring the party to give ao-
tice to the collector that he considers the duty
claimed Ulegai, and put hini on hi* guard. bT
ail
1»4
SUFSEME Coon OF TUK UitiTEo STi.m.
1830
Kouirlng him not to pij over the money. Tlie
collector would then be placed in a situation to
clkim an imJemnity from the government. But
if the party is entirely Bilent, and no intiina
tlon of an intention to seek a repayment of thi
money; there tan be no ground upon w^icb the
collector can retain the money, or call upon the
governtnent to indemnify him againBt a suit.
It ia no auf&cient answer to this that the party
cannot sue the United States. The case put in
the question is one where no suit would lie at
all. It ia the case of a voluntary payment
der a mistake of law, and the money paid <
into the treasury; and if any redress is to be
had, it must be by application to the favor of
the government, and not on the ground of ~
le^l right.
The case of Morgan y. Palmer (2 Bam. ft
Crea. 729) was an action for money had and
received, to recover back money paid for a cer-
tain license; and one objection to sustaining
the action was that it waa a voluntary pay-
ment. The court did not consider it a volun
tary payment, and sustained the action; but
Chief Justice Abbot and the whole court ad-
mitted that the ob'ection would have been
fatal, if well founded in point of fact. The
court aaid it had been well argued that the
payment having been voluntary, it could not he
recovered back in an action for money had and
received. And, in Brisbain v. Dacres (G Taunt.
154), the question ia very fully examined by
Gibbs, Justice, and most of the cases noticed
and commented upon, and with the concurrence
of the whole court, except Chamhre, Justice,
lays down the doctrine broadly that where a
man demands money of another, as matter of
right, and that other, with a full knowledge of
the facts upon which the demand is founded,
has paid a sum of money voluntarily, he cannot
recover it back. It may be, says the jud^,
that, upon a further view, he may form a dif-
ferent opinion of the law; and it may be, his
subsequent opinion may be the correct one. If
we were to hold otherwise, many
f law. When they arise, the defendant has an
option either to litigate the question, or sub-
mit to the demand and pay the money. But
ISS*] *it would be moat mischievous and un-
just, if he, who has acquiesced in the right by
such voluntary payment, should be at liberty,
%t any time within the statute of limitations,
to rip up the matter and recover back the mon-
ey. This doctrine is peculiarly applicable to a
case where the money has heen paid over to
the public treasury, as in the question now un-
der considerntion. Lord Eldon, in the case of
Bromley v. Holland {7 Vesey, 23), approves the
doctrine, and says it is a sound principle that
a voluntary payment is not reeoverable hack.
In Cox V. Prentice (3 Maule ft Selw. 348), Lord
Bllenborou^ says: "I take it to be clear that
an agent who receives money for his principal.
is liable, as a principal, so long as he stands in
his original situation, and until there has been
a change of circumstances, by his having paid
over the money to his principal, or done some'
thing equivalent to it." And in Buller v. Har-
riaoR (2 Cowp. GBS), Lord Manafleld nays, the
law is clear that if an agent pay over money,
whtcb has been paid to him by mistake, he
does no wrong, and the plaintiff must call on
sso
the principal; that if, after the payment faas
been mad«, and before ths money haa heen
paid over, the mistake is corrected, the agent
cannot afterwards pay it over without making
himself personally liable. Here, then, is the
true distinction: when the money is paid vol-
untarily, and by mistake, to an agent, and he
has paid it over to his principal, he cannot be
made personally responsible ; but if, before
paying it over, he is apprJEied of tbe mistake,
and required not to pay it over, he is personal-
ly liabLe. The principle laid down by Lord El-
lenborough, in Townsend v. Wilson (1 Camp-
bell, 39S), cited and relied upon on the part of
the plaintiff, does not apply to this case. Be
says, if a person gets money into his bands il-
legally, he cannot discharce himself by paying
it over to another; but the payment, in that
case, was not voluntary; for, says Lord Ellen-
borough, the plaintiff had been arrested, ajid
was under duress when he paid the money. In
Stevenson v. Mortimer (2 Cowp. BIS), Lord
Mansfield lays down the general principle, that
if money is paid to a known agent, and an ac-
tion is brought against the agent for the mon-
ey, it is an answer to such action that he has
Caid it over to his principal. That he intended,
owever, to apply this rule to cases of volun-
tary payments made by 'mistake, is I'lSB
evident from what fell from him in Sadler v.
Evans (4 Bur. 1087). He there said he kept
clear of all payments to third persons, but
where it is to a known agent, in which case the
action ought to be brought against the princi-
pal, unless in special cases, as under notice, or
mala tides; which seems to be an admission
that, if notice is given to the agent before the
money is paid over, such payment will not
exonerate the agent. And this is a sound dis-
tinction, and applies to the two questions put
in the second and third points in the case now
before the court. In the former, the payment
over is supposed to be without notice, and in
the latter after notice, and a request not to pay
the money. The answer, then, to the sec-
ond question is, that under the facts there
ated. the collector ia not personally liable.
3. The caae put by the third point ia where,
. the time of payment, notice is given to the
collector that the duties are charged too high,
and that the party paying, so paid to get pos-
session of his goods, and accompanied by a
declaration to the collector that he intended to
him to recover back the amount erroneous-
ly paid, and notice given to him not to pay It
rer to the treasury.
This question must he answered in the Af-
firmative, unless the liroud proposition can be
maintained that no nrtion will lie against a col-
lector to recover back an excess of duties p«id
him; but that recourse must be had to the gov-
ernment for redress. Such a principle would
be carrying an exemption to a pubMc ofllcer
beyond any protection sanctioned by any prin-
ciples of law or sound public policy. The case
of Irving v. Wilson et al (4 Term Rep. 485),
VBS an action for money had and received,
[gainst custom-house officers, to recover back
noney paid to obtain the release and dis-
charge of goods seized, that were not Iiabl« to
seizure; and the action was sustained. I^ord
Kenyon observed that the revenue laws ought
' to bo made the meaits of oppreuing thr
Peters lo.
VM
Haqan '
mbject; that tk* aelEiire waa illegal; that tlm
dafsndaiitB took the moiK^ under circumstances
vhieh could by no possibility justify them;
uid, therefore, this could not be called ■ vol-
UDtarj payment.
The case of Greenway t. Hurd (4 Term Rep.
SS4} was mn action against an exc[se oflicGr
to recover b*ok duties illegally received ;
167*] 'and Lord KenyoD docs say that an ac-
tion for money had and received will not tie
•gainst u known agent, but tbe party must re-
sort to the superior. But this was evidently
considered a case of voluntary payment. The
plaintiff had once refused to pay, but after-
wards paid the money; and this circumstanoa
ia exprt-ssly referred to by Buller, Justice, as
fixing the character of the payment. He says,
though the plaintiff had once objected to pay
the money, he seemed afterwards to waive the
objection by paying it. And Lord Ken yon
considered the case as falling within the princi-
ple of Sadler v, Evana (4 Bur. 1384}, which
has already been noticed. In the case of Snow-
den T. Davis (1 Taunt. 358), it was decided
that an action for money had and received
would lie against a bailiff to recover back
money* paid through compulsion, under color
of process, by an excess of authority, although
the money bad been paid over. The court aay,
the money was paid to the olaintiff, under the
threat of a distress; and although paid over to
the sheriff, and by him into the Exchequer, tbe
action well lies; the plaintiff paid it under ter-
ror of process to redeem his goods, and not
with intent that it should be paid over to
anyone. The case of Ripley v. Gelston (9
Johns. 201), was a suit against a collector to
recover back a sum of money demanded by bim
for the clearance of a vessel. The plaintiff ob-
jected to the paymeut, as being illegal, but
paid it for the purpose ot obtaining the clear-
ance, and the money had been paid by the col-
lector into tbe branch bank to the credit of the
treasurer. The defense was put on the ground
that the money had been paid over, but this
was held insumcicnt. The money, say the
court, was demanded as a condition of the
clearance ; and tbat being established, the
plaintiff is entitled to recover it back, without
showing any notice not to pay it over. The
eases which exempt an agent do not apply.
The money waa paid by compulsion. It was ex-
torted as a condition of giving a clearance, and
not with intent or purpose to be paid over. In
the eas« of CTinton r. Strong (S Johns, 389), the
action was to recover back certain costs which
the marsbal bad demanded on delivering up the
vessel which had been seized, which coeta the
court considered illegal; and one of the ques-
tions was whether the payment was voluntary.
HS'lThe court said the payment could *not
be voluntary. Tbe costs were exacted by the
officer, colors ofHcii, aa a condition of the re-
derivery of the property; and tbat it would
'ead to the greatest abuse to hold that a pay-
ment under such circumstances was a volun-
tary payment precluding tbe party from con-
testing it afterwards. The case of Hearsay v.
Pryn (7 Johns. 178), waa an action to recover
back toll which bad been illegally demanded;
and Spencer, Justice, In delivering the opinion
of the eonrt, saya tbe law ia well settled that
u action may be
• L.ed.
> anataiaed against wi agent
who has received montiy to which the principal
had no right, if the agent liaa had notice not to
pny it over. And in the caae of Fry v. Lock-
woixl (4 Cowen, 4G6), Che court adopts the prin-
ciple that when money ia paid to an agent tor
the purpose of being paid over to his principal,
and ia actually paid over, no suit will lie
against the agent to recover it back. But tlie
diatinction taken in the case of Bipley v. Gel-
ston ia recogni7.ed and adopted; that the eases
which exempt an agent when tbe money is paid
over to his principal without notice, do not
apply to cases where the money is paid by com-
pulsion, or extorted as a condition, etc. From
this view of the cases, it may be assumed as
tbe settled doctrine of the taw that where mon-
ey ia illegally demanded and received by an
agent, he cannot exonerate bimaelf from per-
aonal responsihitity by paying it over to his
principal. If he has had notice not to pay it
over. Tbe answer, therefore, to the third point,
must be that the collector is personally liable
to an action to recover back an excess of du-
ties paid to him aa collector, under the cir-
cumstances stated in the point, although h*
may have paid over the money into tlie treaa-
Thia cause came on to be beard on the tran-
script of the record from the Circuit Court of
the United States for the Southern District of
New York, and on the questions on which the
i'udges of the said Circuit Court were oppoaed
n opinion, and which were certiGed to thia
cburt for its opinion, agreeably to the Act of
Congress in auch case made and provided, and
was argued by counsel; on consideratiun where-
of, it is the opinion of thia court, on the first
question, that the aaid shawls and suspenders
were *not a manufacture of wool, or [*l5tt
ot which wool was a component part, within
the meaning of the words "all other manufac-
tures of wool, or of which wool is a component
part," in the second article of the second sec-
tion of the Act of Congress of I4th July, 1S32.
On the second question, it Is the opinion of
this court that, under the facts aa stated in
the said second question, the collector is nofr
personally liable.
On the third question, it is the opinion of this
court that the collector, under the circumstan-
ces as stated in the said question, ia liable to
an action to recover back an excess of duties
paid to him as collector, although he may have
paid over the money into the treasury. Where-
upon, it is ordered and adjudged by this court
to be so certified to the said Circuit Court of
the United States for the Southern District of
New York.
'JOHN HAGAN, Plaintiff in Error, [•ICO
THOMAS J. FOISON.
The onus probsndl ot the amoant In eontrovem.
a cEtBhllsh the Jurlsdlctloa In a ease brouBbt be-
[>re the court by writ ot error, [a upon tbe party
Supreme '
• I L. td. 1
SuFKKK Coun <a thk Umiib) BTAtn.
Mrtlof to obi
proTe tbat tbi
to obula • KTlsloa of th« cu«. Ha maj
■ aicceds two thouund dollui.
Id thU ciM. th* matter lo
, nblp of one negro womui and
two i-tillilrcD, wlio were ilBTei, aod It li DOt lUp-
pMed tbelr value can ba equal ta that nim. Tbe
writ of error wai dlamlsaad.
IN error to tbe District Court of the United
St«tei for-the Southern District of AJabama.
This caae waa argued b; Mr. Cose for the
plaintiff in error, and by Mr. Key for the defend-
aot. After the argument, the court, on inspect-
ing the record, tiecame satisfied that the
amount in eoutroverey betweea the partiea, waa
not aullicient to KJve tbe plaintiff a right to
bring the case up dj writ of error.
Mr. Justice Story deliTered the oplnioD of
the court;
The court are not satisfied that thli caae U
within their appellate jurisdiction. To aupport
tbat jurisdiction, it ia neceuarj tbat it anould
appear upon the face of the record, or upon
affidavits to he filed by the parties, that the
Bum or value in controveriy exceeds (2,000, ex-
clusive of costs. The onus prohandi is upon
the party seeking to obtain a revision of the
ease, to establish the jurisdiction. Here the
whole matter in controversy is the ownership of
one negro woman and two children, who are
■laves; and It is not supposed that their value
can be equal to 92,000. The bond in the case,
In the nature of a forthcoming bond in a larger
penalty, does not vary tbe result. But ttie
plaintiff Id error is at liberty to establish, if
necessary, that the value exceeda that aum.
But there are other cases on the doeliet, be-
tween the plaintiff in error and other persons,
which involved the same points, which have
been argued in this case. If any of these cases
Involved a sum or value which entitles the
court to take jurisdiction, we wlU hereafter
give an opinion upon those points.
Hi»] 'WTLLTAM C. S. VENTRES3 et al..
Executors of Lovic Ventress, Deceased,
Plaintiffs In Error,
Administrators, powers under Mississippi stat-
ute— death of defendant — intendment in fa-
vor of judgment — administrators'
r.K""^
s dua to the aatate of
■ ■ slveo to Bd-
thoiltV Vf" toa'statuVe "l a w" oV U rnTwil ppi .
ConStriKtlaD of tbe statute oC Misaliwlppi pro-
viding for the snbstltutlOTi at aiecuton or admln-
tatrators, when cither partr to a salt din baton
judgment.
It Is InCDPibeDt od a plaintiff In error to make
out an alleged error, clcsrl]' and satlBrBctorllr.
BTery reasonable tniandmant should be In favor of
a ludgDiant of a court.
The administrator. In Alabama, bsd sold slaves
belonglDf to the estate of the Intestate, without an
Hon. — As to power, end that atrlet
Is neceaaaiT, see not- — ' ' ^ n ,
ed. D.I.Mi.
ed. U. B. S18 ; S L.
order o( emrt aatoorialag the sale ; and bf private
■ale.
Bi m Conar: The statats of Alsbana, Caws
Ala. p. S8«, declares that It shall not be lawful for
execatot or admlnlstiator to dispose of tbe as-
_. — . ._._ _j privata sale, si-
hj Ibe will of the
. but tbat in all cases wbere It mar be aac-
essar]' to sell tbe whole, or anj' i;art of tbe person-
al cBtate, applkatloD mait be made to Iba Orphani*
Court for an order of aale, which sale Is rwialred
to be at public auction, after giving notice thereat
as pointed out bj the statute. The sale of these
..J — .1 — — f made accordtoR to the prorl-
prlvata sale, and made
slona of tiilB L_ , .^
without any order from [he court. Tbe order of
sale eipreailr excepts tbe negroes. The sale waa
law.
■ supportiid upon anj principles
BieeuEors and admlnlHtrators, In making aalea of
propertT, must compl; slTlctlr with the requlsltsa
of all statutorj provlilona on tbe subject ; and un-
with. all whose Intereata are affected hj the anthor-
ItT to sell are not concluded bj tbe sale, nnleaa,
from a long acquiescence, a foundation la laid for
a fair and reasonable presumption that the requi-
sites of the law bad been complied witb. Ko bbcIi
praBOmpllou can arise In this caie. It la a gcoeial
rule of law tbat a eil? by a person wno dbb do
right to sell, IB not valid against the rightful own-
Aotharlt7 given to eiecators and admlnlatratora
to vrll Is a personal tmal. and muit be strtctlt pur-
sued : and It [bev tranacend their authorltr, Id any
essential particular, [belr act Is void.
It has sometimes been contended that a bona fida
pnr'-hase tor » cnhinlile cODKldcrHlliig, and without
notice, waa equivalent to a purcbasa In market
overt, under tbe English law, nnd bound the prop-
artj igBlnst the psr^j who had right, llut we are
not Bware that (bis Baxon Institution of markets
overt, wblch controls and loterCere* with the ap-
plication of the common law, has ever l)een recog-
nlii^d In any o[ tbe United Stales, or riTflved anr
Judicial aancllon. At all eveota, no local usa^ or
custom bas bren abown. appllrabis to the preaent
case, to take it out of the general principle of the
•T N error to the District Court of the J" 1 61
i United BUtes for the District of Missis-
sippi.
John Clark, of the State of Alabama, died
In 1818, owning and poflsessed of certain slaveai
and after liis defease, adminiatration of his (•■
tate was panted to his widow. She afterward
intermarrwd with John Farrington, and ao in-
ventory of the estate was filed, the slaves be-
ing included in the same. On the first day of
November, 1819, Neal Smith and hU co-secu-
tration revoked, on the ground that the admin-
istratrix and her husband were embezzling th«
estate of John Ctark; and they stated that tiM
negroes had been sold. Administration wns
S anted to Neal Smith. The slaves were carried
om the Siate of Alabama to the State of Hla-
si a si ppi, and were there sold. The Gountw
Court of Clark County. In the State of Aln-
bama. In Au^nnt, 1819, authorized tbe admia-
istratrix of John Clark to sell all the person^
fiToperty of the inlestnte except the slaves; Mid
t did not appear that any order to sell th*
slaves had ever heen obtained. Neal Smitl),
some time after he had heen appointed admin-
istrator of the estate of .lohn C^ark, in Ala-
bama, procured letters of administration, mA
colligendum, from the Probate Court of Wil-
kinson County, in the State of Ulsaiaaip^.
They were in the lollowing terms:
"State of Mississippi, Wilkinson County.
Peters lo.
!•»
Tkhtbess I
. T. SUITK.
in
To all to whom thew prssentB ihkll come,
gneting: Know ;«, that wbenaB John Clark,
of Clark County, In th« State of Alabama, as
it is mid, had, at h» decease, ^rsonal proper-
ty wkliin this State, the admimstration where-
of canant immediately be granted, but which.
If spredy eare be not taken, may be lost, de-
■troyed or diminished; to the end, therefore,
that the Fame may be preserved for those who
■hall appear to have a legal right or interest
therein, we do hereby request aad authorize
Sral Smith to secure and collect the said prop-
erty, wheresoever the same may be, in this
SUte or in Wilkinaon County, whether It be
goods, chattels, defatt, or credits, and to make,
or cause to be made, a true and perfect Inven-
tory thereof, and to exhibit the same, with all
convenient speed, together with a reasonable
IS3*] account *of his collection, in the ofHce
of the register of the Orphans' Court of the
County of Wilkinson. Witness, ths Honorable
limmai H. Prosser, Judge of Probates of Wil-
kinson County.
[No sfal of oflice,] C. C. West, Reg. W. C. P."
Neat Smith, under the authority of the let-
ters of administration ad colligendum, on th(
Sth day of April, 1822, instituted, in the Dis-
trict Court of the United States for Miasissippi
■n action of trover against Lovic Ventress. foi
the recovery of the slaves which had belonged
to his intestate; and with the declaration in ' —
rer, a copy of the letters of administratio
mlligendum was filed. The defendant appeared
and pleaded to the suit, and it was continued
to April Term, 1823, when the death of the
defendant was suggested, the case continued,
and a scire facias was issued to Elizabeth Ven-
tress, hia administratrix. The administratrix
appeared, by her attorney, at the succeeding
October Term, and the cause was "legally con-
tinued" until April Term, 1826; when the death
of the administratrix was BU^gented, and the
cause again continued. On the 21st day of
February, 1827, a scire facias was issued to
William C. S- Ventress and others, the plain-
tiffs in error, executors of the last will and
testament of Lovic Ventress, and at January
Tenn of the District Court they appeared, and
the case was tried by a jury; and a verdict was
rendered in favor of the plaintiff, on which
judgment was entered by the District Court.
Cm the trial, the defendant offered no evi-
dence other than a bill of sale for the slaves,
ntade by James McDonald to Lovic Ventress,
In consideration of 11,^0; with proof that the
•ame was paid at the time of sale, and that it
was deemed a fair value for the slaves.
The plaintiffs offered in evidence the depo-
sition of Neil HcNair, and the defendant ob-
jected to the admission of a part of the aame.
The court overruled the objection, and tha
following bill of exceptions was sealed:
"Va ths trial of this cause, the plaintiff of-
fered in evidence the deposition of Neil Mc-
Nair, the anawer of which witness to the lOth
tnta Interrogatory — (lOth cross interrogatory:
Ware they not sent away, or intrusted to
lt4*] aome person to he removed 'and sold,
by the odminiatrator or administratrix, or
ether personal representative of said John
Qark, in the State of Alabanut Answer
DepOBsnt uuth that he hath reason to be-
Bara, and doth beiieva, that tk* said negroes
tlhttd. s
were removed and sold, not bT tha authority
or request of the administratrix or any other
person representing said estate) — the defend-
ants, by their counsel, objected to as evidence
to the jury, on the ground of bein;; inadmissi-
ble from the manner of its answer, and moved
the court to rule It out as inadmissible testi-
in the e
T to be read to the jury as evidence
Upon the submission of the cause to the jury
the plaintilTs counsel requested the court to
charge the jury —
1. That It must appear in evidence to the ju-
ry that Abigail Clark was authorized, by an
order of the court In Alabama, to sell the
slaves, or she could convey no legal title to the
defendant.
2. That It must also appear by evidence to
the jury that James McDonald was authorized,
either by a legal purchase or by a power from
the administratrix, to sell the slaves, or his
conveyance couH not devest the estate of Clark
of the legal title in his representatives.
S. That unless both of the above farts ap-
peared, to wit, the authority of the administra-
trix to sell, and the authority of McD^innld,
cither by a legal purchase or power of attorney
from the administratHx, that the title to the
slaves stil! remained in the legal representa-
tives of John Clark, deceased.
4. That if the plaintiffs were entitled to re-
cover, they ivere entitled to the value of the
hire of the slavea, by way of damages, from
the time the slaves came into the possession of
Ventress.
The defendants' counsel also presented the
court with the following points in writing,
which they requested the court to give In
charge to the jury:
1. That if the jury shall believe, from the
evidence before them, that Abigail Clark he-
came the administratrix of the estate John
Clark, deceased, in tK? State of Alabama, and,
as such administratrix, held and possessed the
slaves sued for, till her intermarriage with
John Farrington, and that said Farrington and
wife, in virtue of the administration of said
Abigail, were also 'possessed of the [*10S
slaves sued for; and that the possession of
these defendants, or their testator, of the staves
sued for, was acquired by, through, or from the
said Farrington and wife, either directly or in-
directly; then the plaintiff, as administrator
to collect the estate of John Clark, deceased,
has no right to recover in this action, against
these defendants.
2. Will charge the jury— if they shall believe,
from the evidence, that the slaves sued for in
the death of said John
that during here administration she intermar-
ried with John Farrington. and that Farring-
ton and wife, possessing said staves by virtue
of the administration of said Abigail, eloigned,
wasted, embezzled, sold, or otherwise converted
or disposed of them, in violation of their duties
as administrators of said Clark's estate, by
which devastavit of aaid administrators, the
slaves sued for passed to the possession of one
Jamaa McDonald, who brought them to thia
Sdprbub Coubt of tub Uritbd STAtKa.
WV
State and sold them for b fall and bona fldo
eonaideration, to Lovic Ventreaa, defendants'
testator, wbo purchased in good faith, and
without notice of such devastavit of aaid ad-
ministrator; tlien the testator, Lovic Venlresi,
acquired a good title as against the plsintifT,
ana the verdict ahould be for Che defendants.
to the estate of John Clark, deceased, at the
time of his death, and passed into the possea-
■ion of his administrators, in the State of Ala-
bama, who embezzled and disposed of the same,
in disregard of their duties as administrators;
l>ut that defendants' testator, Lovic Ventress,
i>ecame an innocent purchaser of eaid slaves (in
this State) for a valuable consideration, with-
out notice of the administration of 'I'd Clark's
estate In Alabama, then the; should And their
verdict for the defendants.
The court refused to instruct the jury in all
or either of the several points as sought for and
requested b^ the defendants' counsel, as afora-
aid; but did charge the jury as requested bj
damages, could be recovered only from the
commencement of the suit.
ie«*] *Tht counsel of the defendants ex-
cepted to the opinion of the court in chariiin^
as requested by the counsel for the plaintilT.
and refusing to charge the jury as re[|UeaLed
by them, on behalf of the defendants.
The defendants prosecuted this writ of er-
Mr. jQnea, for the plaintilT, maintained —
1. That the letters ad colligendum from the
Court of Probates in Mississippi vested not in
the plaintill below, but In terms excluded any
title to the possession of, or to maintain any
posaesEory action for the property in question,
under the peculiar circumstanoes and relations
of that property and of these partiea; even if a
good title were shown in the legal representa-
tives of Clark in Alabama.
2. That the process of the suit in the record
•bows a discontinuance and a mistrial.
3. That the evidence excepted to by defend-
ants in the first bill of exceplinns, and admitted
by the court, was inadmisaible.
4. That the right of Ventress (defendants'
testator} by purchaae, bona Sde, for a valuable
and full consideration, without any notice of
breach of trust or other fraud In the vendors,
who had possession and the right of possession,
clothed with a legal title; a purchase consum-
mated long before the second letters of admin-
htratioD granted to the plaintiff in Alabama,
and his lettera ad colligendum in Misaisaippi,
and whilst the original lettera of administra-
tion, granted to the vendor of Alabama, stood
unrevoked and in full force, were valid and in-
defeasible: consequently, that the aeveral opin-
ions and inetructions, both those delivered and
those rejected by the court below, and both at-
flrmativrly and negatively disparaging that
title, and auetaining the plaintiffs' title, are er-
roneous.
Upon the first point, Mr. Jones cited Stat.
Edward lU., ch. 11; Lord (joke's Commenta-
SB4
ries on the Stat, of Edw. m., 8 Inst. 997, 39Si
Stat. 4 Edw. III., SI Edw. III.; 1 Com. Dig.
Adm. E. 13; £ 'Doug. Rep. 645; I Hen. [■l«T
Black. 1S4; 1 Boa. & Pull. 330; 1 Maul* A
Selw. 400.
Upon the 4th point, Mr. Jones cited 4 T.
Rep. 625, 021; 1 Boa. ft PulL 293; 7 Vas.
laZ; 8 Vee. 209; Williama on Executors Baa
Adminiatrators, 1 vol. 303.
Mr. Key, for the defendnnt tn error, con-
tended that the testimony objected in the first
exception waa properly admittpd. The Instme-
tion prayed for by appellee properly given,
and those asked by appellant properly refused-
He cited 1 Williams on Rxecutora and Ad-
miniatrators, 333. eoe, 611; Statutes of Missis-
sippi, 2BI; Walker's Rep. 380; Holt's Nisi
Priue Reports, 4S5; 1 Payne's Rep. 400; S
Wheaton's Rep. 203; Randolph's Rep. 196; 4
Munford, 194; I«ws of Alabama (Tonlmin^
Digeet) 334, Act of 1800.
Mr. Justice Thompson delivered the opinlaa
of the court:
This case comes up from the District Court
of the District of Missiseippi upon a writ of
error. It is an action of detinue, to recover fl»iB
negro slaves, of which John Clark, deceased,
was the owner. The plaintiff, in tha court be-
low, prosecuted, as administntor ad colllgen-
dujn, under letters of administration granted
by the judge of probate of Wilkinson County,
in the State of Mississippi. The action ap-
pears, by the record, to nave been commenced
in the year 1922 against Lovic Ventress; and
after the cause was at issue, and before trial,
Lovic Ventress died, and a scire facias, tested
the first Monday in April, IS23, was issued
against Elizabeth Ventreaa, adminiatrafrix, etc.,
who afterwards appeared in court, and the
cause, as is stated upon the record, was legally
continurd. At a subsequent term of the court,
the cause being legally continued, as is alleged,
the death of the defendant, Elizabeth Ventress,
the administratrix, was suggested and admitted
to be true; and thereupon a scire fscias was is-
sued to the present defendants In the court be-
low, as executors of Lovic Ventress, tested the
first Monday in October, 1828, and due service
thereof upon the defendants waa returned. The
record then stales that afterwards, in January
Term, 1S34, to which term the cause was regu-
larly continued by consent, the parties
•appeared by their attorneys, and the [*1<S
cause was tried, and a verdict found by the
plaintiff. Upon the trial two bills of excep-
tions wpre taken. One in relation to the ad-
missibility of evidence, and the other upon in-
structions given by the court to the jury upon
the merits of the case; which will be noticed
hereafter.
It will be necessary, in the first place, to dis-
pose of two objections arising upon the record,
which have been raised against the plaintfSTa
right to maintain the present action:
1, That the letters of administration ad col-
ligendum, granted by the Court of Probate* In
MJEsissippi, did not vest in the plaintifT aaj
right or title to the possession of the property
in question, or authorize him to maintain an
action to recover it, even if a good title w«b
shown in the legal representatives of John
Gark tn Alabama.
Peters ■«.
Vkntbess n ai. t, Sjotb.
IM
L Tlut the raeord shows a ducqn Li nuance of
Um cauM, KDd a niatrial.
It may be proprr to observe, with respect to
th« lint of these exceptions, Hint aa it ri-sts up-
■m the disability of the picintilf to aiie, it
ought to have beta pleaded in aLateinpnli lilit
u we think the objection untenable, in what-
ever form it U raised, we shall proceed to no-
I the n
r Id which i
tke it
tented.
Thesa Tetters of administration recite that
John Clark, of Clark County, in the State of
AlabaJna, as it is said, had, at hia decease, per-
looal property within this Stale, the adminis-
tration whereof cannot be immediately grant-
ed, but which, if ipeedy care be not taLen.
may be lost, destroyed, or diminished; to the
end, therefore, that the same may be preserved
for tbo^e who shall appear to have a legal
right or interest therein, we do hereby request
and authorize Neal Smith to secure and collect
the said property, wheresoever the same may
be in this titate or in Wilkinson County,
whether it be goods, chattels, dvbts, or credits,
and to make a true and perfect inventory
thereof, etc
These letters of administration were granted
nader the authority of an act of tbe Legisla-
ture of Mississippi (Laws of Mississippi, 2!J1|.
which empowers the Chief Justice of the Or-
phans' Court, in the county in which such jus-
tice reaides, whenever he nisy deem it nccen-
•aij, to appoint an administrator to colled
tt^ther the goods of tbe deceased, for the
lav*] purpose of depo^'iting 'them in tbe
hands of the Chief Justice; out of which he
ihall pay the debts of the deceased, and be lia-
ble, in law, as other adniinistratora. Tbe ar-
guinent at tbe bar is that the power given to
the administrator does not authorise liim to
bring a suit. That no such power is exprc.isly
gifcn, nor ia it implied in the power to collect.
The words of tbe statute are general, to col-
lect together the goods of the deceased. The
power veitled iu the magistrate to appoint such
administrator, is discretionary whenever he
may deem it necessary. And if the words of
the act, upon any reasonable interpretation,
will admit of a constnietion which will uphold
the authority given by the letters of adminis-
tration, the; ought not to be so construed as to
iMputa to tbe magistrate an unauthorized ex-
arose of power. And if we look to the letters
of admin istrat ion, the power to sue is necea-
Mrily implied in the language there used: "We
da hereby autborize tbe said Neal Smith to
•eenre and collect the said property, whether it
be goods, chattels, debts, or credits," etc-
Theae words are amply sufficient to authorize
the bringing of suits, if neccssaTy for the pur-
poaa of executing the power, and is certainly
DO foread Interpretation of the word collect, as
naed in the statute, to consider it as implying
tbe authority to bring suits. In tbe case of
Irwin ft Wright 1. Peak, Walker Rep. 330,
decided in the Supreme Court of Mississippi in
tbe year 1S31. it was held that an administrator
ad colligendum may bring suits. This power,
however, in the view of the court, rested upon
a statute referred tO' in the opinion, but wbiclr
haa w)t been produced oi> the argument of this j
eata. But the decision ia so recent, and refer-
ring eipreaslj to the statute, we think we lOBy '
safely rely upon it as an authority to austain
the li^'lit to sue, under the pnwer given by the
l:Iii'iii of adminiatration in this cu^e. And we
I lie more readily adopt this conclusion, becaune
w<- tliink the right to sue is necessarily im-
plied in the authority to collect the goods,
iliutlels, rights, and credits. The grant of the
power carries with it all the usual, ordinary,
and neoeseary means to effectuate tbe beoefieial
exercise of the power.
2. The proceedings, as stated upon tbe
record to continue the cause, appear to ha**
been in conformity to a atatute oF that State
( Miaainsippi Statutes, Z3B}, which provides that
when any 'suit shall be depending in [*1T0
any court, and either of the parties shall die
before judgment, tbe executors or adminis-
trators of the deceased, in case the cause of ac-
tion by law aurvives, shall have full power to
prosecute or defend such action; and the court
is authorized and required to render judgment
for or against the executor or administrator, aa
the case may require; and a scire facias is au-
thorized to be issued to call in tbe executor or
administrator to make himself a party; and
such was the course adopted in Uie present
case, as appears from the record. L'pon tbe
death oF i,,ovic Ven tress, a scire facias issued
to Klizabeth Ventress, the administratrix, who
appeared and became a party to the suit, and
the cause was continued; and upon the death
of the administratrix another scire facias is-
sued, to call in tbe defendant, the executors
of Lovic Venlrefs, who appeared and became
parties to the suit, which, accord'ng to the
record, was regularly continued, by consent, to
the term of the court when the cause was
tried. For what reason or under what cir-
cumstances Elizabeth Ventress was appointed
administratrix of Lovic Ventress, when the de-
fendants were hia executors, does not appear.
But tbe court will not intend that it was with-
out authority. Circumstances may readily be
supposed to have existed that would require
the appointment of an adminiatration for some
special purpose. Whether the was a general
admimstratrii, or only one with limited pow-
ers for eome special purpose, docs not appear.
But when the iccord states that the cause was
regularly continued, by consent of tbe present
parties, who were fully competent to give such
consent, there can be no ground upon which
this court can now consider the cause discon-
3. The next objection arises upon a hill of
exceptions taken at the trial, relative to tbe
admission of evidence.
The plaintiff offered tn evidence the depoai'
tion of Neal McNair, and tlis objection arises
upon the answer to the tenth cross -interrogato-
ry, which is as follows; "Were they not sent
away, or intrusted to eome person to be re-
moved nnd sold by the administrator or admin-
istratrix, or other personal representative of
John Clark, In the State of Alabamat" An-
swer: "Deponent saith he has reason to he-
lieve, and doth believe, that the said negroes
'were r<?movcd and seld, not by the [*IT1
authority or request of the administratrix er
any other person representing said estate."
This answer was objected to on the part of the
defendant, but admitted by the court t« be
read to tlie jur;. Tlu whole depoaiUon ia not
ITl
CmFKEMK CoDBT or tbe Umitb) UtAvu,
Kt out In the bill of exceptloni; and tbl« ques-
tiou and the ansvsr itanding alone, unconnect-
ed with tlie antecedent and subaequent inter-
rogatories and Knawera, are in a great meaauro
unintelligible. The verj form of the interrog-
atory shona the question to have had relation
to some antecedent inquiry, and ia vague and
indefinite. "Were they not lent away, or in-
trusted to some perBon (naming no one) to be
removed and sold by the administrator or ad-
ministratrix, or other personal representative
of John Clark!" It seemed to be a fishing in-
quiry, tOat would hardly admit of a direct and
positive answer. Had it been a direct question
to some speeihc fact, the belief of the witness
would be no legal answer. The belief of a
witness ia a conclusion from facts. The wit-
ness should state facts, and the conclusion to
bit drawn from tbem, rests with the jury. Al-
though this answer, standing alone, may not be
•trietly adraissible; yet, when connected with
other facts of the deposition, it might not be
objectionable. Subsequent inquiries might have
drawn from the witness the facts upon which
fais belief was founded; and all being submitted
to the jury, ihe belief of the witness might be
at least rendered harmless. It docs not appear
how or under what authority this deposition
was taken, or whether the parties were present
or not. It they were, and no objection was
made to the answer, it ought to be considered a
waiver; and the exception not allowed at the
trial. It is incumbent on the plaintiff to make
out the error clearly and saliafactorily; every
reasonable intendment should be in favor of
the judgmeutj and we think the exception too
vague to justify a reversal of the judgment.
4. This second hill of exceptions embraces
the merits of the case, and turns upon the va-
lidity of tlie purchase of the slaves by Lovic
Ventrcss in bis lifetime. The facts upon which
the court was called upon to instruct the jury
on this question, are briefly these:
The slaves in controversy wore the property
172*] of John Clark, *of Alabama, and in his
possession at the time of his death, in the year
1818. This widow, Abigail Clark, was appoint-
ed administratrix of his estate, and in May,
1810, intermarried with John Farrington, and
In June, 1819, filed an inventory of John Clark's
estate, including therein the slaves in question.
On the first of November of the same year, the
letters of administration to her were revoked,
and adniiiiistralion granted to Neal Smith, the
present plaintiff, in the court below. In Au-
gust, 1S19, the County Court of Clark County,
in tue State of Alabama, authorized Abigail
Farrington, the administratrix of John Clark,
to sell all the personal property of John Clark
except the negroes; and it does not appear that
any order of sale of the slaves of John Clark
had been obtained. The defendants offered no
other evidence of title to the slaTes than a bill
of sale from James McDonald to the defend-
ants' testator, tn Wilkinson County, in the
Slate of Missiasippi, dated Kovember 2, 181S,
for the eonsidcrstian of nineteen hundred dol-
lar*, which was paid at the time of sale, and
which was deemed a full and fair value of the
slaves. Upon this evidence the plaintiffB' coun-
sel requested the court to charge the jury —
1. That ic miiic appear in evidence to the
■"ry that Abigail Clark was authorix*d by an
arder of the court of Alabama to sell tkt: slaTH,
or she could convey no legal title to them.
2. That it must also Hjjpcar by evidence to
the jury that James McDonald was authorized.
conveyance could not devest the estate of Clark
of the legal title in his representatives.
3. That, unless both of the above facts ap-
peared, to wit, the authority of the administra-
trix to sell, and the authority of McDonald,
either by a legal purchase or power of attorney
from the administratrix, that the title to tha
slaves still remained in the legal representii.
lives of John Clark. These instructions tha
court gave. A fourth was requested, which tbe
court refused to give, and which it is unnecaa-
sajy here to notice.
The defendants' counsel also requested tba
court to instruct the jury upon certain pointa
substantially as follows:
1. That if they believe, from the evidence,
that Abigail Clark 'became the admin- [*13S
istratrix of John Clark, deceased, and as such.
rington, she and her husband were in possca-
sion of them, and that the posseasian of tha
slaves by the defendants or t'leir te^itator. naa
acquired directly or indirectly from or llirough
Farrington and his wife, then the plaintill, ma
administrator, to collect tbe estate of John
Clark, has no right to recover in this action
against the defpndants.
2, If they believe, from the evidence, that
Farrington and his wife, so possessing tha
slaves by virtue of the administration afore-
said, had wasted, embezzled, sold, or olhcrwisa
converted the staves, in violation of tlicir duty
as administrators, by which devastavit the
slaves passed to the possession of one Jamea
McDonald, who brought them to the Stale of
Mississippi and sold tbem to Lovic Vcntresa,
the defendants' testator, for a full and valuable
consideration, and that he purchased them bona
fide without notice of such devastavit, then
Lovic Ventress acquired a good title as against
the plaintiff, and the verdict should be for tha
defendants.
3. That if they believed that the slaves be-
longed to the estate of John Clark, and passed
into the possession of his administrators, who
embezzled and disposed of thrm in disrei^rd
of their duty as administrators, but the iletend-
ants' testator, Lovic Ventress. became an innu-
cent purchaser of the slaves for a valuable con-
sideration without notice of the maladministra-
tion of said Clark's estate in Alabama, then
they should find a verdict for the defendant*
These instructions the court refused to Rive.
It is unnecessary to notice separately tha
several Instructions prayed by th>> parties, re-
spectively. The general question arising under
them, and one which lies at tbe foundation of
thf action, relates to the sale of the negroes by
Abigail Clark, the administratrix of John Clark.
The several inatrucMona prayed on the part of
the plaintiff and given by the court, asaume
that, in order to devest the plaintiff of the
right to recover as the present administrator of
John Clark, it must tie shown that his ftrat
administratrix had authority to sell the slaves
by an order of U)e oourt o( Alabama; and that
•Tetera 10.
VBitTtEas n AL. r. Smith.
ITS
Jamn HcDonaM ww itithorlicd vlther by pur-
chase from the Bilniiiiistratru or by authority
tit'] from her, to sell the slttvea, 'in order
t* devest the representatiTes of Clark of the
title, and take from the plaintiff tha right to
recover. The principle Msumed in the instruc-
tions asked on the part of the defendants, la
that the administratrix of Clark being in pos-
teuion of the slaves, and that possession hav-
ing passed directly or indirectly to the defend-
ants, the plaintiff, as administrator ed colligen-
dnn of John Clark, cannot recover in this oc-
Uon. And that admitting the administratrix
had, by her conduct with respect to the slaves,
eommitted a devastavit; yet if the defendants'
testator purchased them bona fide and for a
valuable consideration, without notice of such
devastavit, he acquired a good title to the
alaves. and the plaintiff had no right to re-
eover. It may be observed here that the caM
b entirely silent in the statement ot the evi-
dence with respect to notice by the defendants'
tntator, of the situation of these staves. The
iDttruction prayed, however, was subject to the
decision of the jury upon that point; and we
assume, in the consideration of the case, that
I^vic Ventress was a bona fide purchaser with-
out notice, and rest the question entirely upon
the want of authority in the administratrix of
Clark to sell the slaves. It may be observed,
ia the first place, that the letters of adminis-
tration to her were revoked before the sale to
the defendants' testator. The rev
sn the first of November, ISIS, and the bill of
MJe hears date on the day after. There may
be some mistake, however, in this, and we
place DO reliance upon It; as the want of au-
thority in the administratrix is clearly estab-
lished on other grounds. The statute of Ala-
bama (Laws Ala. p. 334) declares that it shall
not be lawful for any executor or adi
trator to dispose of the estate of any te:
or intestate at private sale except where the
same Is directed by the will of tbe testator; hut
that in all cases where it may be necessary to
•ell the whole or any part of the personal es-
tate, application must be made to the Orphans'
Court for an order of sale, which aale is re-
qnired to be at public auction, after glTing
DOtice thereof as pointed out by the statute.
Tbe sale of these negroes, although bona fide
and for a valuable consideration, was not made
according to the provisioo of this law- It was
a private sale, and made without any order
from tbe court. The order of sale expressly ex-
cepts the negroes. Tha sale was, then, not only
175*] without authority, 'but In express vio-
lation of the provisions of the statute Such a
Hie cannot be supported upon any principles of
law. In the case ot Tbe Executors of Emos v.
James, 4 Mum IM, it was held by the Court of
Appeala of Virginia that the sale of a slave be-
lOHging to the estate of the testator by a per
aon named in the will as one of the executors,
but who, at the time of the sale, had not quali-
Bad or given the bond reijuired by a statute of
that State, was void agamst the executor who
had qualified; although the sate was bona fide
and for > valuable consideration. It was ad-
mitted that if the question was to be decided
Apon the principles of the common law, without
K^rd to the act of Assembly, the sale would
have been valid, tb« power of tha ezeeutor b«-
t It. ed.
Ing derivad from the wfll- Rut he not havlag
qualified and compiled with the statute by giv-
ing the bond required, the foundation of his au-
thority was done away, and all his acts were
invalid, and the sale illegal and void. The pres-
ent is a much stronger case. The want of au-
thority in the executor to asll in that case rest-
ed upon the construction of the statute, influ-
enced, in some measure, by the policy which
governed its enactment. But in the present
case, the sale was against the express excep-
tion in tlie order of sale, and in violation of the
positive prohibition in the statute to sell at
private sale. The taw in this class of cases is
welt settled that executors and administrators,
in making sales of property, must comply
strictly with the requisites of all statutory pro-
visions on the subject; and that, unless every
essential direction of the law is complied with,
all whose interests are affected by the author-
ity to sell are not concluded by the sale (T
Mass. Rep. 488) unless, from a long acquies-
cence, a foundation Is laid for a fair and reason-
able presumption that the requisites ot the law
had been complied with. No such presumption
can arise In tnis case. It is a general rule of
law that a sale by a person who has no right to
sell, is not valid against tbe rightful owner.
Authority given to executors and administra-
tors to sell, is a personal trust and must ba
strictly pursued; and if they transcend their
autlioiity In any esRenClal particular, their act
is void. 4 Johns Ch. 366; 0 Cond. Rep. 3ST.
It was a msJiim of the civil law that nemo
plus juris in alium transferre potest, quam ipse
habet; and this is a plain dictate of common
sense *lt was also a principle of the [*I7S
English common law that a sale out of market
overt, did not change the property from the
rightful owner; and tbe custom of the city
of London, which forms an exception to the
general rule, has always been regarded and
restricted by the courts with great care and
vigilance, that all such sales should be brought
strictly within the custom. Com. Dig. Tit. Mar
ket E. It has sometimes been contended tha'
a bona fide purchase for a valuable considera-
tion and without notice, was equivalent to a
Curchose in market overt under the English
iw, and bound the property apinst the party
who bad right. 1 Johns. Rep. 478. But we
are not aware that this Saxon institution of
markets overt, which controls and interferes
with the application of the common law, has
ever been recogntted in any of the United
States, or received any judicial sanction. At
all events, no local usage or custom baa been
shown spptirsble to tbe present case, to take il
out of the general principles of the law of sales.
And although the defendants' testator was a
bona flde purchaser, for a valuable considera-
tion and without notice, the sale being without
authority and against law, he acquired no title
that will bind the property against the party
who has right.
The judgment of the court below must ac-
cordingly be affirmed with costs.
This cause came on to be heard on the tran-
script of the record from the District Court of
the United SUtea for the District of Missis-
sippi, and was argued by counsel; on considcrm-
tiaa whereof, It Is ordered and adjudged by this
S«1
!76
SurBEMB CouKT or THE Unitid 8Ti.nta.
Mart that tlie judgmt-nt of the Mid District
Court In tills cau^ be, and the aame is hereby
affirmed, with custs and damages, at the rate
of six per centum per annum upon the sum ad-
judged by the said District Court, to the plain-
tifT in this court, in case the said plaintilT can-
not have the said negro slaves delivered to him.
Bncla, br which the Utter task npon bin the l»
stlluKoii and coDducllaK of thi* cnlt, (or a porllos
o( Itac benellt to be derived from It ; and uils 1b(
pcrsoati Id poMeulon *alleBe to be champer- [*IT8
bv ottiers who hEld tbe legal 'title, to be nrndf^U
toe complalnADCa. at ail Iha iHnilB TuivnEri. biuI nnt
In the poSB
Ihej egrei
■ccordtni; I
111*] *8ARaH BOONE et *L, Appellants,
WnXIAU CHILES et al.. Appellees.
Equitable titles to luid — limitations — pleading ,
— variance — (purchasea with notice) cbam-
perly and maintenance — trusts.
The ramplalnaau Bled a bill to tbe Circuit Court
of Kentucky, clslming ■ conveiiaDce of i
.. of eqult; must be regardless of all Iti
(ore II can recognise Chlfes as a purchaser,
avlDg inj right whatever In tbe land : It
lo forfeit Ite character. If It oaoctloua lucb
: of lolqullDua fraud. We deem It whollr
the I
. 1 of l__
D their rich!
of
legal title to wbl
iw of Virginia, u__.
pre-emption rlgbt. held bj Keu
a pre-emption rlEbt. held bj Keubeo Searcy. Sear-
cy gai-e hla bona to Hoy, to make a deed of one
lialfof the land to which lie wm thus euritud- ihr
other balf having been given hj him to one M
tin, to obtain the location and pateDtitig,
afterwards gave the plats and surveys lo iioy, w
In 17SD. obtained a patent far tbe laad. nhkh
was to have a deed for. Hoy. In 1T81. asBlEoed '
band of Senrcy to Ueorge Boone, and made blioi
aurely tor Us performance: and George Uoone
alKned the bond to Thomai Boone, the ancegtor
f'fbe'^e*
<-0ndllloL
HO that under the aj
lekiab Boone: but tb>
by Hezeklnh Boone
.... lion was taken of parts of thi
I. and ImpruirnipniB made an early aq or Lefon
ndanta, George Boone exceeded his powers
made agreements to sell the land: and alK
le of II
erting a righi
cy'a bond ; and some of tbe hrlrs
land to the oeraooa In posseasloo. asx
to the legal title, and another of the
M (mllclalm deed all her ilghls. as one of Ibe bel
alleelag that be bad obtained from George Boone
and from Hezeklab Boone, llie condlllonal purobos-
i-r. tbe euultsble right of Tbomaa Boone, under
Searcy's Iwnd ; filed In tbe name of Tbomae.
George, and lleieklah Boone, and In bli own namp,
Id tbe County Court ot Bourbon COunty. * bill
aRalnit tbe beirs of Hoy. tbe persons In posHes^loa.
and against Oieen Clay, alleging blm to be a pur-
chaser with notice of Thomas Boone's equitable
title, under Searcy and IJoy: and obtained from
■hat court a decree for a cooveyance to blm
of tbe leical title, and afterwards a dei>ri far
tbe lame from a en m ml sal oner appointed
the I
the El
peal. I
rscd 1
Informality :
t befoi
Cbllee. after tbe
ct;?'
) purehaaed from
NoTC— As to itstute of rimltatloos as applicable
to equity cnw. s-e ror.-a la It !.. -d. T. S. 5lT ; I'J
U ed. t. S. D28 ; :te L. ed. U. S. 139 : SB L. ed.
V. 8. 1037: 4-J T.. ed. T. R. 711,
As to itatule of llmltallona and lapse ot time as
bar lo truKia. ace notn lo 6 h. ed. U. S. 311 : 39 L
ed. 0. 8. S3Si a« U ed. D. a. 108S: S6 I. «d. U.
■. lOSflb
from Martin and Searcy, held the legal title to tb«
whale fauileeu bundled acres, aubjecl to be de-
veaiid only Uy the cquliy of Uoone. derived by this
agreement to transfer Ibe one half. No act, there-
fore, remoiued to Ije ncrformcd hr tbe heirs of
Searcy. The title of Koone becomea complete by
the union of bis eqiilialile witb Iloy'a legal title.
>vlibout any lnlcrpo)<lIiuD of tbe heirs of Searcy,
who have no Inleri'si ro ilefcud or ntlp lo cori.py.
Tbe lapse of lime and tbe italeneas of [he plain-
litta' I'qully la also set up as a bar lo o decree la
equity In favor of a posspsalon long and peaceaDly
held; It can have none In favor of Chiles. wboK
onlv claim la under tbe equity of Tbomaa Boone,
and a;;Blnet whom tbe present suit wits brought In
not be pvimllted lo blm i.i acquire tbe legal title
of Ilov la vlrliii of Ronai-B pquitT. and tO hold II
■ "--t Boone's rlgbl
utqulied II
eitlnct by t
fh» nicaiia I
I Chllt
a by V
il title
Bclince too deeply with fraud, tor a ciiurt of equity
plalntllTs have eatabllshrd a rlEtit lo a decree tor
rived by any conveyance to bimsclf directly, of tbe
legal right of Ho.v's belrs.
By tbe rules of an appellute court. It can act On
DO evidence which woe Dot before the court below,
or receive any paper that woa not used at tbe bear
or answer, and make out a dllTerent one by proof;
the allegata and probals must agree: the latter
must aupport [be former.
. ^. „i,b ,io,i|.j „,„, protect himsell
iser by deed wlthoat notice, bot
B fro
I olds
llnct. In Ibe former, t'ht purchaser'wl lb" notice "li
protected : In tbe latter, he baa no aiandlou 111
elder equity ahall prevail, unless the defendant can
shelier hlmseH under the le;ial title acquired by
ooe whose conscience was not alTecled with fraud
guilty purchaser, aa the represcntHtiie ot bla legal
I blm from the JurlsdlctlDo of a court of
Such a porcbaae nfTlieH no atalo on the
llbout dpcd. the detendnnt can acquire onlv
tie Bi
t fraudulent
equity will
■ the t-IT»
It la a general princlp'e in eourta of equity that.
where both parties cialtn by an equitable titip. tbe
one who la prior In time Is deemed the tietler In
right, and that where tbe equities are egual !■
point of merit, tbe lew prevails.
Strung as a plaluttff's Multy ma; be. It can Id ••
I8U
BuoKX n AL. V. Cbtlu et al.
etm W ■truncvr than that of ■ pnrrbawr. who han
St hlmocif Id p«rll by purcbaalDn a titia and paj-
r a vaJuable conaldFratlon, wLtbout notice o( an;
defNt In It : and trben. In addition, be shows a
lE«t»l title from one aeliw) and pos>«B«d o( tbe
liroperti purcbased. he baa a rlxbl to demaDd pro-
llberallj. SDi:h Bultnni are Itx most Fsjiec^al fainr-
ItiB. II will not Inquire bow be mat ba*e obtained
- —•—-., mortgage, enciirnbrance, or even a aatla-
I of I
' WldOK
Dor ■ball Ibe beir tee tbe title paper
to a bill to perpetnale teatlniiiny. or tnr rliarorery,
mod soea to the JurlBdlellon ot tbe court oier bim :
bis conRcleoce beloc clear, aor adveruri muat tia
left to hiB nmed; at law.
Bat tbia will not be done on mere aTerment or
Blleicatlon : tbe pratrctloo of mch bona fide pui^
cbase Is neceMHrj onlj' wben tbe plaintlfT baa ■
prior equllf. wblrb can be barrvd or avoided nnlj
tj tb* anion ot tbe leeal Mile with an e«ultT arlr
!□( from tbe pajment of tbe moDs)', ana rcnlTlnic
the coDveisnce without oolite and a clear eon-
ID netlloE It ap — • bona fide purrhaae witbout
notice, bj plea or anniver — It muat stare the deed of
purcbaac. the dale, pnrllea. and conlenla brleflT :
Ibal tbe Tendor was seized Id fee. and In poises
alon: tbe ronalderatlon must be ntated. with a dla-
tlDct averment that It was booa nde and trulf
e or psTlng the n
deed : aod If
muat ■
wblcb
and the dell
tally c
irged. I
V of th.
ri-fer
_ tbe ■D^'wer oi
, show bow the grantor acflulred title. The
lltir panbasi'd muat be. anparentlT. pei-ffct. euod
at law. a Tested ealate In fee-slmnle. It luusr br a
regular con vera nee ; for the purchaser of rtn etrult
able tide tanldn It aubjeet to Ibe equities upon II In
Ibe hands ot tbe Tebdor. and ■"ir no better atund
log Id a coorlof equltj. _ Si ' "
iljBt be B
of I
wllbi
>ted t
gnd or tbe contract betweeb Thoman Bnonr
Boone ICuRlea bplni; wllbin the slstutes nf
mperIT and mRlRtennnce, rnnnot W auitalni'd
" "■ - -- ■ ituteri on this
'co'oVaVt*'for
■, hut illd not
:bp suit Instl-
racce ot aucb
br the plalntlffi tbemscIveB ; the rleht of nmlnflfri
la Dot forfi'lted bf lucb ao agreement, and It mai
b« amerlfd agalnat the defendonla whether Ihi
contract with Boone Eagles In valid nr void. 3. B<
th* Art of Kentucky o( JTBfl, which waa In [arc
pemon could he prevented from proserutlnir nr de
lBO*1 fending anv claim *ta land held under tbi
land lawa of Virginia : Dor waa any ault brough
to make (ood BUi'b claim congldered aa comin)
wllbin the proTlHlnnii of the common Isw, or ani
. . lit charapertT or — -■-■ ""■ —
Tbe time doei not liar a direct t
yet. where a coDStmctlve trust Is made out to
•qnltr. time protccta the trustee, thoueb bla con-
duct was or)elDall)> traudulent. and hU purchaae
WDDid bHve been repudiated for fraud, Elo. where
• ptutT takes poaaesslon In bis own right, and waa
prima tacle the owner, and la turned Into a trustee
& matter of evidence mcrelr. And where one In-
tnnnne lo purchnse the entire iDlereet In tbe Innd
took ■ eopTejanct without words ot limitation to
biB heln. passing onlr aa an eatate for life, the
What that reasonable time li. wltbln wblcb a
conatracllvc tmat can be enforced, depends on tbe
tamtm wbSN It «•■ b* draa altar twta^ tsars' peac-
by ImpIIcBllon. Bis
who rlalma la bla
mede bIm ■ trustea
I entitles bIm to at
-. ,jnt of a diiTct trus-
— . — . .. tbe pIslntllTi' knowledge, disavows the
Iruat, and balds adveisely : at> lo whom the time
runs from the dlBaioȣl, because hla paases^lon la
Ibencefortb ndverae. The possession at laod Is no-
tkP of a Claim to II hv tbe possessor: If not taken
and held by contract or purchase. It Is. from its In-
ception, adverse to all tbe world; and In twenir
Phaser In possession br a contrBct to sell li In las a
tRie, buvlni taken poF^sessiuD under tbe cnntra'-t,
and the v<!ndor la Id the sttustlon of an equitable
morlBageor, If l' ■
frr : b"*tlt*le" thi.„„. _
ent with, tbe original title of tbe
pr'-«eD( rlnim In eit'
A vendee in ter- deri.
but his title, lh^>iit;b
of the vender: he e
the conv-yancp of the title; tbs
ee for the payment of the pur-
the performance ot tbe termn ot
lo the possessinn of tbe prnpertv
-'-' -■ ■-'-■- '■ '- his own
of'tfie 'vendor, as"
sold; the vendee .. .
right, for bis own benefit, subli
the property, but friendly as to tbs performance
of tbe coadItlor>a ot the purcbaia.
APPEAL from the Circuit Court of tha
United State." for the District of Kentucky.
The principal facts of tliia case were the fol-
lowing; Reuben Searcy bemf> entitled to n net-
tlrment of lour hundred aire'' ot land. an<] a
pre eniptinn of one thousand acres, in Hourbon
CounlV, Kpntiick-y. under the laws of VirK'H'*.
obtained a certiiicnte "thereof from the \'1HI
coininisiiionerB, and he employed one ,7ohn Mar-
tin to perfect the title to the lands, and gavo
him one half of the same for ao doing. On tbo
24Lh September. 17S1, Searcy sold seven hun-
dred acres. suppnseJ to be one half of the
land, to William Ifoy, and executed a hond to
Hov. The bond was in the following words;
■'Know all men by these presents, that I,
Reuben Searcy, of tbe County ol Fayette, am
held and firmly lound unto William Hoy. of
the County of Lincoln and State ot Virginia,
in the penal sum nf iifty thousand poutids cur-
rent money of Virginia, to which payment, well
and truly to be made. I hind myself, my heira,
executors, and administrators, unto tbe said
William Hoy. he, hin heirs, or assigns, this
24th day of September. 1781- The condition of
the above ia such thai if the above-bound Beu-
ben Searcy shall well and truly make, or cause
to be made, as eoon as deeds are made to lands
in this county in general, a good anii sufficient
deed for seven hundred acres of first-rate land,
lying in Fayette County, on Licking Creek, be-
tween .John Martin's Station and Ruddle's Sta.-
tion; it being part of a aettlemcnt and pre-
emption, that John Martin cleared out on tbe
halves for said Reuben Searcy; and the said
Hoy takes hia first choice of the land; then
the above obligation to be void; otherwise to
remain and be in full force and virtue."
On tbe ISth of December. 1781, William
181
SunEHB Court or the Uritsd SrAm.
ISM
Hoj made the following aMlgnment to George
Boone of thii bond, by an iniiorsempnt thereon:
"I, William Ho;, anaign over the within bond
unto George Boohr. hia heirs or nHsigns; and
•aid Hoy obliges himself, his heira, executors,
knd administralori. u shourety to witbia
bond; and if the within lands cannot be ob-
tained by reason of a prior claim, then, and in
that case, seven hundred acres, equal in <]Ual-
Ity and convenience, shall discharge the with-
in bond."
Siearrj' also assigned tbe filats and certificates
of survey to Uo^, who was thus enabled, in
July, ITas, to complete the title by obtaining
palenta for the land in his own name. On the
aOth of April, 1T8S, George Boon'- made the
following Hssignment of the Imnd to Thomas
Boone, the antestor of the appellants, who are
IHI<] *'-t do hereby assign aver al) my
Tight, tide and claim of the within bond unto
Thumas Uoone, beira, or assigns, without re-
i-oursp to tbe same; that is to say, that I, the
■•id George Boone, am no ways obligated, if the
■aid William Hoy, or bis heirs, sufficient to
make good the within bond; but if the said
Williani Htiy. or bis heirs, should not be p>od,
then 1, George fioone. do bind myself, my
heirs, tn maice good the same unto the said
Thomes Boone or his heirs or assi^iis."
Un the 25th day of January. 1X23, Thomu
Booup tiled a bill in thp Circuit Court of the
United bltates lor the District of Kentucky,
■latinc his equitable right, thus derived, to
■even hundred acres of land, part of the settle-
ment and pre-emption ot Searcy, alleging that
hp I'ad never parted with the same; but admit-
ting that he made a conditional contract with
Hezekiah lloone for it. which was never com-
plied with by said Hezeiciah, and was after-
wards PXpressly abandoned by him.
On the 1st of Uctober, 1787, Thomas Boone,
who resided in the State of Pennsylvania, gave
to George Boone a power ot attorney, in the
loDowing term:
''Know all men by these presents, that I,
Thomap Boone, of Oly township, in the County
of Berks, and Commonwealth of Pennaylvunia.
blacksmith, lor divers good cauEea me here-
unto moving, hath constituted and appointed.
and by these presents do constitute and ap-
jioint my trusty friend. George Boone, of Madi-
son County, in tbe settlement of Kentucky, and
Commonwealth ot Virginia, yeoman, my true
and lawful attorney, lor me and in my name.
recover of and from Major William Hoy. of
Kentucky settlement, a deed or other lawful
conveyance, valid in law. for aeven hundred
acres of land, in or near the waters of Hinkson
and Btoner, branches of Licking River; It being
one halt or moiety of a settlement and pre-
emption right belonging to a certain Beuben
Searcy, and which I purchased from Squire
Boone, who purchased the same from said
George Boone, who purchased the same from
■aid William Hoy, hereby giving and granting
my sole power and authority to my said at-
torney concerning the premisei, to do or cause
to be done therein, as amply aa I myself might
or could do were I personally present; and on
18**] the obtaining said title and "convey-
ance for m«, and in my name, iuffleient dii'
charges to sign, leal, ud deliver, and one or
more attorney or attorneys under bim, to
substitute and appoint, and at pleasure to re-
voke, hereby ratifying and confirming what-
soever my said attorney shall lawfully do con-
cerning tbe premises. In witness whereof, I
have hereunto set my hand and seal, this Srat
day of October, ITSI."
The bill charges that William Chiles insti-
tnted a suit in the Bourbon Circuit Court of
Kentucky, without the knowledge or consent
of Thomas Boone, in the name of Thomas
Boone, William Chiles, Hezekiah and George
Boone, against the heirs of William Hoy. and
against others in possession of the land, to
compel the execution ot a conveyance of the
seven hundred acres of land; that in the suit.
Chiles, alleging the execution of thp bond by
Searcy, and the assignments before stated,
pretended that, under the conditional contract
between Thomas and Hezekiah Boone, tite
latter had become entitled to the land, and
that he had purchased It from said Hezekiah.
In the suit, a decree was pronounced lor a con
vpyance to be made to Chiles; and on the Tth
da^ of January, 1822. it comini'iiiiiner. ap-
pointed by (he court, according to 1 hi' lawn of
Kentucky, executed a conveyance to Chiles for
seven hundred acres of the land, in conformity
with tlie decree.
In the proceedings in the Bourbon Court,
William diilis made Green Clay o defendant.
alle^rin;.' him to be a purchaser from Ni-wlunrl
and wife, ot two eigliths of the land. In- having
notice of Thomas Boone's rights. The wife of
Npwiand was one of Hoy's heir*. After the
decree, he purchased from Green Clay all he
held under Newland and wife; and, in this case,
he relies on the title obtained under that pur-
Hezekiali Boone, by his answer, assei-ls a
right to the land under the conditional con-
tract, but no proof of a compliance with tlie
same wb!i given in the cause; and it was in
evidence that, long after the contract, he
acknowledged lie bad no right to the land, and
that IT heion^ed to Thomas Boone.
Some ot the dcieiidanta. in the Circuit Court.
allege that George Boune. as attorney in fact
for Thomas Roone. in August. I7!)2. assicneil
Searcy's bond to a certain John South.'nn.l
delivered thp bond to him John South v/a*
the executor ot William Hoy, 'and [*I8I
had married one ol his daughters; end Suutli
sold, to some ot the defendajita. parts of the
land, under a pretense that he held lloy'a
claim, and they insist that the assignment ol
Sesrcv's bond shall inure to their benefit.
It was in evidence that William Chiles, after
(he death of John South, applied lo Benjamin
South, who had the custody of Searcy's buiij.
and by an arrangement with him, tlie assign-
ment to John South was erased and canceT'ed,
and the bond was transferred to Chiles. Tliia
was prior to the institution of the suit In tbe
liourhon County Court, and the Iwmd waa filed
among the proceedings in tbe cause.
The defendants also set up. by way of de-
fense, that an agreement in writing, of whirh
a copy is filed, wai made between Thomas
Boone and Boone Engies, in December, 1&2£,
by which Engles undertook, at his own ex-
penaa, to prosecute « suit for the seTen hoa-
tnA Bcrce of land In diipute, And, bb ■ m>ii-
sideration for fais trouble, etc^ was to have one
hBlf ol (he land. This luit, thcj allege, is
prosecuted under that agreement: and they
cbarge that It is. therefore, a cB*e of champerty
und mninti^nance, forbidden bj law; and in
which the rourt ran give no relief. Ths ooni-
plainanta reply, tliat at the time of the agree-
ment, the law of champerty and maintenance
>•• not in force in Kentucky; And that, if it
irii, tliii case doea not fall within ite tcope.
During tbe pendenuy of this suit in the Cir-
cuit Court of Kentucky, tbe defendants, in tbe
luit in the Bourbon Circuit Court, instituted,
as aforesBtd. in the DDme of Cbiles and the
Roones, prosecuted a writ of error from the
Court of Appeals of Kentucky to reverse the
decree obtained in tliat iiiit. And the Court of
Appeals accordingly did reverse the decree for
vant of proper parties, and remanded the cause
to tbe Bourbon Circuit Court for further pro-
ceedings. The cause ia atill pending there;
Chiles and the heira of Thomas Buone respec-
tively claiming a right to direct itH future proi-
I)y amended pleadings, the complainants al-
lege the reversal of the decree of the Bourbon
County Court. B.nd the heirs of Geor^ Boone
were made defendants. They alao allege that
tbe heirs of tieorge Boone assert no claim to
the land, and tliat Searcy is dead, having left
no heirs known to tbe complainunts.
185*J 'During the proceedings in the Cir-
cuit Court, and in this situation of the same.
a question of jurisdiction arose; and the judges
hemp divided in opinion, the cause was ad-
journed, according to law, to the Supreme
Court, with the follon'ing statement of the
points respecting which the judges were di-
vided in opinion: 1. "The court being then
divided, and the judges opposed in opinion as
to the jurisdiction over the rase, and unable,
tlferefore. to render a decree on the merits,
lliey resolve to ad.ourn that question to the
Supreme Court, to wit. under at] circumstances,
appearing as above, can this court entertain
cognizance of the easel Z. The judges were
also opposed in opinion on the point whethar
tke complainants were entitled to a decree in
the absence of any proof that the persons made
defendants in the amended bill, as heira of
George Boone, were in fact, hii heirs"
The cause came on. upon this adjournment
of It, before the Supreme Court at the January
Term. 1834; and this court, in its mandate to
the Kentucky Circuit Court, certifies its opinion
nil the quc'lions submitted to it as follows:
"The court is of opinion, 1. That, under the
tircumstsnccB stated in the certificate of the
judges, the said Circuit Court could entertain
eogni»nce of the case. 2. That the want of
proof that the persons made defendanta in the
amended bill, aa the heirs of George Boone,
were, in fact, his heira, is no obstruction to a
decree on tbe merits of tbe cause."
It appears on the record that William Chiles.
besides the conveyance executed to him by the
(ommissioncr appointed by the Bourbon Cir-
enit Court, of the interest of all tbe heirs of
Hoy, obtained a special conveyance, prior to
the iaatitution of the Bourbon suit, from Wil-
riam Hoj, the aon, and hia wife, and John Sap-
pington and Farth«nia Us wife; who were two
Bourbon, he cbarses G. Clay to have obtained
the interest of Nrwiand and wife, as one of
the heirs of W. Hoy, with full notice of hia
(Cliiles'sl claim; in other words, with full no-
tice of the claim of Thomas Boone's heirs: and
that he, G. Clay, upon receiving a conveyance
from tbem, bound himself by special contract
Co make good all the contracts of their ancestor.
Green Ciay filed his answer to the bill of
Chiles and others 'in the Bourbon Cir- [*1S«
cuit Court; in which answer he does not allege
that he has obtained the legal title from New-
land and wife; he does not nllcge that he has
obtained any title from them, but refers to a
contract by which he acquired their interest,
and. without producing it. refers to it as being
of record.
The heirs of John South, of George Boone,
and of flezekiah Boone, were made defend-
ants, and most of them answered; but the com-
plainants allege they are only formal pirtiet.
One object of the suit is to annul the contract
between Hezekiab Boone and Thomas Boone;
but the main purpose of it is to obtain the
legal title to and possession of (he seven hun-
dred acres of land in contest, which ia veBt«d
in W. Cbiles and the heirs of W. Boy. and
which Chiles, aa is alleged, fraudulently ac-
i]uired; first, by possessing himself of the bond
of R. Searcy, the property of Thomas Boone;
and. second, by prosecuting the suit in chan-
cery in the Bourbon Circuit Court, in the name
of Thomas Boone and others; and lastly, by ob'
taining from two of the heira of Hoy, and from
fii-Frn Clay, conveyances.
Upon the return of the cause to the Circuit
Court, in May. 1834. that court pronounced a
final ilerree. by which the defendant. Chiles,
was decreed, by deed of release, with fpneial
warranty, to convey to the complainant all his
title and interest in the land in controversy,
except that which he held under a deed from
Green Clay, who, the court slate, was a pur-
chaser for a valuable consideration from New-
land and wife (she being one of the heirs or
devisees of W, Hoy. In whom the legal titi?
was), and who conveyed to Chiles the title
which he (Clayl had so acquired Tbe court
also decreed that Chiles should deliver to the
clerk of the court, to be cancelled, the contract
between him and Hezekiah Boone and George
Boone, as attorneys in fact (or Thomaa Boone,
an it appeared to the court that the contract
was made without authority, and that its terms
had never been complied with by Hezekiah
Roone. The court further de.'reed (having
previously caused an adjustmcnl to l>e made
of one half of the rents and profits of the
land, and one hal( n( the value of the im-
provemrnts] the tenants in possession to pay
the BcvcrHl balances which appeared to be due
from them. As to so much of the land as
was claimed by John Evalt, one of th( de-
fendants, within the •^minds of Flour- ['iST
noy'a pnN-nt. and which is described in the
decree. I he court dismissed the bill, as r^valt,
and tlinvp under whom he claims, had more
than i>veity vears' ailvpr^e possession. The
court fiirilicr decm-il lUiit the claim of the
comiilainsnts is not to be prejudiced by the
decree in this cause, aa t« any of the heirs oi
m
SoTtBiia CotntT oi' thk Urtied Statu.
ISM
Hoj, who arc not psrtfM to the suit. Th« court
likewise derre«d that Jones Hoy, and Fanny,
by her guardian, ad Jitein, do I'onvey a[] their
interest, etc., in the Innd. as heirs or devisees of
William tloy, And, flnally, the court directed
the clerk, as commissioner, to convey, in de-
fault of conveysneee being made by the de-
fendants, according to tKe statute of Kentucky,
and possession to be delivered by a fixed day.
From this decree bath parties appealed, and
entered into the requisite bonds for the due
prosecution of their respective appeals.
The case was argued at January Term, 1835,
by Mr. Clay for the appellants, and by Mr.
Harding far the appellees; and the court, after
advisenient, ordered a re argument. It was
now, again, argued by Mr. Clay and Mr. Crit-
tenden for the appellants, by Mr. nndcrwood
for William Chiles, and by Mr. Hardin for the
other defeiiuanlB.
Before (lie argument was commenced. Mr.
Underwood staled that he waa desirous to
submit' a preliminary question, which waa,
whether a certain deed from John Newland .
and wife to Green Clay, a certiHed copy of
which would be filed among the records of the
court, would be admitted as part of the pro-
ceedings of the case in the Circuit Court, If
thU was refused, he would move for a certiora-
ri to the (^rcuit Court in order 'j bring up the
Mr. Clay atated that the deed had not been
exhibited in the Circuit Court on the hearing
of the case. The final decree of the Circuit
Court, from which this appeal was prosecuted,
H-aa returned at May Term, 18,34. Ttie paper
nnw offered purports to be a copy of a dped
wbirli the clerk of the Circuit Court, on the
3d day of June, 183.5. certifies was produced
to the court by the counsel of the defendants,
who "suggested that the same deed was on
file," and "used on the hearing of the cause,"
1S8*] and that on (he said *3d day of June,
1835. was, by the court, ordered to be copied
and certified to the Supreme Court.
He was willing that the copy of the deed
should be considered as if the deed were before
the court on a return to a certiorari. Aa he
denied that the deed had been used in the Cir-
cuit Court, he would not admit its use in this
court; nor did the certificate of the clefk show
that the deed had bpen before the Circuit
Court on the hearing of the cause.
It was agreed hr the counsel that the copy
of the deed should he considered as If it had
been sent up from the Circuit Court on a cer-
Mr. Clay, for the appellants, said that It
would he contended the decree of the Circuit
Court was erroneous.
I. In decreeing in behalf of William Chiles,
upon the conveyance of Green Clay to him of
the interest of Kewland snd his Wife. -Who
was one erf the heirs of William Hot. Neither
Green Clay, in his answer to the bill in the
Bstirbon Court, nor Chiles, as his alienee, in his
■inswer in the federal court, makes those allega'
;iona which entitle Clay or Chile* to the protec-
tion accorded to tliem of a bona fide purchaser
ivithouf notice. There is no allegation or proof
IS to what sum uas paid, or when or how it
ivas paid, by Clav to Newland and wife. He
does not deny the nllegatioD of the WU that
«ts
he (Clay) pnrchued under a atipulsttoit to
make good the contract of the ancestor of
Newland and wife, William Hoy. He does
not exhibit any legal title whatever (and none
Ei believed to exist} from Newland and wife to
him. And there is much reason to t>elieTe that
his own quitclaim title to Chiles, waa made
to avoid the suit which Chiles waa proaeeutiu
against him in virtue of the title papen of
Thomas Boone. A purchaser, to be protected,
must show that he has paid a fair considerft-
tioQ, and what It was; and obtained the lenl
title, before he had notice of the equity. C&y
and Chiles have utterly failed to establish thcM
indispensable requisites: and Chiles himsrlf, U
the Bourbon bill, charged Clay to be a maU
fide purchaser.
2, The court l>elow erred in diamiising the
Gvalt, and ought to have decreed
agaii
t him
That the court is also bellered to have
erred in limiting the 'decree to one r'lSt
half the amount of the rents and profiu. It
ought to have decreed to the complainants the
whole amount of the rents and profits upon the
land in contest; or at least a greater proportian
thereof than that of one half.
He would examine the case —
1. As it respects the heirs of William Hot.
2. As to the rights and duties of William
Chiles,
3. As it respects the rights and claims of the
tenants in possession.
This is the common case of an application
to chancery, to oblige the holder of the legal
title to convey to the holder of a superior
equitable title.
As to Hoy's heir*, the only ground set up
for them is the length of time since the execu-
tion of the bond and the transi'cr of the same.
Ho one of the parties can present, or did offer
a solid objection to the title.
In considering this objectiun, it will be pitiper
fur the court to look at the terms of Searcy's
bond, and to those of the assignment. It i>
not an agreement to make a conveyance at
once, but "as soon as deeds were made for
lands in the country in general."
In estimating time on an instrument, it la
proper to look to the condiliim for the period
- obligation ii
be performed. In this case i lie provision Is
important, for the state of the country and the
difllculties of conflicting titles created great
delays. The deed was to be made after all
these difficulties should cease. There is. tber*-
fore, in the bond, no definite time for the esa-
cution of the contract it contains. But the
obligor disqualified himself from executing the
contract in the bond; for he assigned the cvi-
dences of title, and the deed was to be made
Mhcn Martia had perfected the rights of Searej.
William Hoy died shortiv afterwards, within
four or five years, leaving infant heirs, some
of whom did not arrive at age until 180S. This
suit was commenced fourteen years afterward*.
There is evidence on the record to aliow that
the infancy of Hoy'a heirs was the cause of the
delay. The evidence proves that S^nlh. Iheeat-
ecutor of William Hoy. poetponed the del'rery
of the title. It is also contended that ttM
obligor was bound to 'p'"/e notic*, [*1»0
when ke was ready to awke the title. He bmj'
PMcn 1«.
BOOHK CT AI. V. CIIU.U EI AL.
IM
which be only
bt beat knew, he tl^sM not ftv&il lii:aself of
tbc lapse oF time, unless he giTes noLice.
As the pateots iuued to another, be ibould
have given notice; and as tu the interfering;
eliimi within thu survey, tlicre are auitii Ui Ihia
day — Donredidenue, application tor title, iu
fuicy, the acts oF South; nil these hIiow (bat
if the dispute was with Hoj's beirs only, tbis
eourt could, without hesitatioD,, give the relief
Mked by the appellants. But others are in-
terested in the controversy, who claim uuder a
title derived from some of the h^irs of Hoy.
The anawerB of lloy'a beira show that they
themselves makp 00 claim, and the appellants
are resisted by strangers claiming for tbem.
2. As to the condition of William Chiles,
and on the question whether there ia anything
io his situation which can authorize bim to rs-
aiat the claims of the appetlanta.
He claims under the ancestor of the appel-
lants, and under proceedings founded on his
right. He was not in possession, and never was
hi possession, and he instituted the proceedings
In the Bourhcn County Court, obtained a legal
title, fraudulently, and he now refuses to give
ap that title to the appellants.
A very important qutstion is presented under
tbe commissioner's deed. A fraudulenii) |>to
eurea, by proceedings in the right of B. a title
to be made to him, founded on that right, and
obtains a conveymce in his own iiame. By the
laws of Kentucky, no title cut be derived but
by deed or last will. A deed under the decree
of a court is not the end of a suit, but it is the
OMBiis to obtain a title. At the time when, by
Um decree of the Bourjcn Court, Chiles ob-
tained the conveyance, the proceedings of the
tppellanta in the Circuit Court of the United
Nates were instituted. The decree of tbi>
Itourbon Court was ufterwards reversed, and
the question is, whether uroicfiiinga of nnuther
court subsequent to the institution of this suit,
and when Chiles held a title under the decree
ot that oourt, could affect, or in any manner
iMpair or kJter the juriiidictloD of this court
•ter Uie case as it stood when the proceeriings
Itl*] were commenced. The proceedings 'of
tlw inferior court need not be looked into.
The title under the decrree remains in Chiles.
and will so remain until devested by a deed or
laat will. It can thus be regarded by this
eourt; and a conveyance of his title, under the
order of the court, will give a title to the com-
•Iftinanta. This view of the case Is sustained
by anatogiea in the taw. Sales of pcrsonsl
property under the decree of a court, after-
wanla rereraed, are valid; and even a purchase
■a4e by a complainant under a decree in his
own cane, subsequently revoked, will stand.
Whatever ia done by a competent court, while
its decrees are in force, is binding on the whole
world. The eourt may, in its discretion, order
differently. The Tlourbon Court .lid not know
tbe fraud of Chiles on the complainants. It
had no application before tbem for a reconvey-
aoM), on which an order for the aame could be
Mde.
But it, bj any proceedings subsequent to the
eon^jranoe to Chiles, under the decree of the
Bourbon Court, the openttioa of tba aMue baa
tl..cid.
been impaired or alT«eteil; yet this court rtionU
order that all the title held by Chiles should b«
conveyed to the pornplii'nants.
It is contrniled by hjui that, independent of
(he right which Chiles derived under the pro-
ceedings of the Bourbon Court, he has one
eighth part ol the land purchased from New.
iiind and wife by Green Claj-. and conveyed by
him to Chiles. The wife of Newland was one
of the children 01 William Hoy.
The conveyance of Newland and wife to
Green Clay was only by ■ quitclaim deed, and
lliere is no evidence of his having paid any-
thing for it Chiles, in the proceedings in the
Bourbon Court mskes Green Clay a defendant,
and charges him as a purchaser with notice.
Neither Clay not Newland assert that a deed
was made, but only a contract, So possession
was delivered, and no money was paid. New
land and wife say they never conveyed a title
by deed to Clay.
For the first time, a deed to Clay is produced
a* if sent up under a certiorari to the Circuil
Court The counsel of Chiles, after the appeal
lo this court, went into the Circuit Court and
suggested that the deed had been produced on
the hearing ol the cause, and he now asks that
it shall be considered by this court It is lor
*(hia court to decide what effect shall |*IV3
be given to it. Its admission to any considera
lion ii opposed.
The only paper regularly in the record is a
quitclaim deed (n Chiles, and this made after
Ihe suit wna commenced. Chiles asserts thai
this gives him a right to one eighth under
Green Clay as an innocent purchaser without
notice. If Green Qay was an innocent pur
chaser, Chilps n>as not so. He well knew thr
superior equity of the couipluinants, and he can
have no benellt from Gretn Clay'* title, it be
had any; as he is, in reference to that title, ■
volunteer, with full notice.
3. As to the claims of the tenants, or those
ivlm are in possession of the land
They, like Chiles, hold under the complain
ants, and must take their late with Chiles
They purchased from South, wNo stated lliat
he claimed under the bond ot Searcy, and (hi«
was suflicien( to put (hem on ihr inquiry as to
the real owner ul the land All the tenanta.
from 1718. hold under Chiles, tiaving purchased
from him. They Iheretore have acknowledged
the right of the complainants, but, as Chiles
could not convey their rifjht, they cannol avail
thcin-eivea ol the purchase Irom him Cited, if
Bibb's Reports, 606
By the purchase Irom Chiles, they held a
title consonant to that ol the defendants No
adverse title can be so acquired They never
were in possession, adversary to the possession
of the appellants VVhnt. in Kentucky, accord.
ing to the decisions of the courts ot that State.
is an adversary posse^aion T Holding under a
different or opposinjj title advei-sely; not when
both hold under the saine title This principle
brings the piirchasera from Smith under the
title of the heiis uf Hoy, which is not adverse.
4 Bibb Rep ; 3 1 ittel. Rep, 134. 20i S Littel.
3)G; S Littel 444 In two of the eases citctf
Chiles was a party.
In the record of Ihe case, there appears a
recovery from (he tenants by Chiles, under tba
title of Hoy's heira. The appellants have a
IK
Sl'PBEue Col'bt of the United State*.
1S38
SOBvefAnce frotn Mrs. South, who nM one of
the heira of Hoy. The sale by ber huiband
tould give no title.
Id relerence to the nllegation of champerty.
which j« niade from the connection ot Boone
EngleB with the case, it is urged that at the
time ol (be agreement between Englea and
IftS'J Boone, 'there was no law against cham
Srty in Kentucky. The law against champer-
waa repealed in 1768, and was not renewed
until 1824.
This
t betwi
0 equi
e tbe elder, and are justly
entitled to a prelerence. They have five eighths
ol the land, besides Ncwland'a one eighth^ and
jet the decree gives them but tour eigbtha.
Tbey are also entitled to a proportionate decree
lor the rents und profits.
Mr Und'.rwood, ror William Chiles.
The Liond ol Searcy stipulates that a title
bJiall be made, and this has been done, and the
obligation has been complied wilbi and yet a
bill in chancery is liled to have a title made.
The complainants ask to have done what is
already done
Till- oblipalion ot the bond was completed
by the issuing ol tbe patents to Hoy. Alt he
was to obtain was delivered to hioi. and there
IB, then, no louridation lor this proiieeding. It
there could be h claim for a deed with war-
ranty, even lbi9 is suLisfied by tbe patents.
The bill does not charge fraud in Searcy by
assigning tbe plat and ceriificales. so that tliey
could get the title, and Searcy or bis heirs are
not mude parties to this proceeding; and yet a
specilic execution ol Searcy's contract is asked.
This i* an ob ection to tlie proceedings
The assignee, Boone, has no right to complain
of the assignment ot the title to Hoy, unless he
proves that Searcy had no notice ot his right to
By tbe assignment of the bond to Boone by
Hoy. lie undertook nothing but as a surety;
and there is no remedy ai^ainst a surety under
the laws of Kentucky, until alter llie principal
lias been prosecuted to insolvency, which has
Nor docs the bond furnish a sufficient de-
scription of tbe land so thai a specific perform
ance can be asked from a court of equity. No
decree can be given lor a conveyance of any
particular part ot the land The bond is for
•even hundred acres; the survey includes two
thousand acres; and the appel ants ask one hall
ot thai quantity Out at what part ol tlie sur
icy is tbe seven hundred acres to be laken^
Tbey can have but seven hundred acres. Koy
1«4*] *js to have the first choice: but he musi
have made it. and specially designatci! the par'
chosen, before a bill in equity for any pari
of the land could be filed. It i.i now too late to
malte the election as to s particulsr part. For
ty or fifty rears have elapsed Tbe lapse nl
time has barred all remedy on the bond, if it
•ver existed
The courts of Kentucky allow a bill for n
specific execution of a contra.-f to he filed in
favor of possession after twenty years, but in
no ease do tbey permit tbe proceeding when
twenty jean have passed, and there has br
The construction of the bond, whicb Is
claimed by tbe appellants, is denied. Tbe tith
was to be made within a short p'-riod; and the
assertion that the history of the country sboifl
the title could not have been made soon after
the date ot the bond, is contradicted by the fact
that Ibe patents for the land were soon ob-
tained. Tbe terms of tbe bond have reference
tu the granting of tbe patents. Tbe longest in-
dulgence given by the laws of the State expired
in ITBS. If the time could be extended to ISOO,
this suit was not brought until twenty-tbrM
years siter; and there is nothing which satis-
Isctorily accounts for tbe delay.
Searcy, or his heirs, and Hoy, or bis bein,
should have been made parties. Tbe rule in
Kentucky is that all parlies, who have an in-
terest, should be betore the court, for tbe let-
tlement ot all the matters. This has not been
done, and the proceedings are irregular.
There is anotfiei principle which has a strong
infiuence in this case, and which is the estsb-
lislied law in Kentucky. When this bond was
given it was not assignable. The statute mak-
ing it assignable passed long after it was made.
T\u- courts of Ktntucky have decided tlisl
where you proceed on an instrument assigned
before tbe statute, you must bring in all 'the
beirs and all others interested
Another nbjcction to thr complainants' suc-
cess arisen from the survey containing two
thousand acres, under the pre-emption and set-
tlement rights, of which Martin has one half:
and yet Chiles is to part with all bis interest
than seven hundred acres Who is entitled to
*the surplus of Ibe seven hundred [*I9S
acres, which will remain out of the one halt ol
the Iwo Ibousand aciB,»T Chilca is to be de-
prived of all but llial be holds under Green
Clay, which he should bold, Tbe complain-
ants can hsve a right tu no more than seven
hundred acres, and they can recover nu more.
Tlirce Iiundred acres remain, and they belong
to Chiles and to Hoy's heirs.
Adversary claims esiat to parts of the lands,
and the adverse claimants are in po'^-ii-saion
This in sn nlijeclion to s selection bcinf; made.
All Ibe inlerienng claims cannot be thrown on
the ball beionRing to Martin No selection can
As to lb' deed "xecuted by Neivland and
wife. if. is here as >1 on a rcrtioran. and it Ap-
pears In have oeen certilieri by order of the
Circuit Court Tbe principle lias been well
-eltled in ihe Courl ot Approls nl Kentucky,
ullowinn inferior courts to amend the reconl
iiiid certify the papers which were naed in the
lase. The deed is to be regarded as ■ deed on
As to ibe answer of Newland and wife.
wbich IS referred to in order to dimini-h the
effect of this deed, it can have no influent*
against Ibe regularly executed instrument. It
is executed according to the Kentucky statutes.
The deed proves that one of the heirs of Hoy
had passed the lend to Green Clay, and he
pnsseil It to Chiles Clay had no notice ot the
t'liiims of the complainants, and be was an in-
nocent bona fide purchaser without noticv*.
There is no objection to the deed founded on
the fact that ihc parties were out of possession
No itntgte of Kentucky then 'tilted making U
Petew !•
vdd. lU* deed fnUf entitlM Oiile* to tbe
put of tha land which Mr*. NewldDd bftd, u
one of the childreo of Uojr.
Mr. Eaidin, for tbe teDftota, contended thjit
the whole quantitj of lud the appellants coulrl
clAim waa seven hundred acres. Une thousand
MIC* of the two thousand surveyed under
Sc«icy's rights belonged to Uartin, and the
bcmd under which Boone claimed was for seven
hundred seres. Under any cireu mi lances, no
light conld be asteited with success to a ^reat-
sr quantity. The deed, by a fair and equitable
construction of the bond, was to be given when
tbt patent usued, which was in 178fi; and a
transfer of tbe plat and certificate was a com-
pUaoce with iL
!••*] *Uoy had assignad the bond to George
Boone before be obtained the title, and there is
m> evidence that bond waa ever delivered to
Thomas Boone. The assignment was not under
seal, and it was, consequently, affected by the
Is* on the subject of such instruments ) and
ive years are, by the laws of Kentucky, a posi-
tive bar to claims under such instruments. A
kar at law, is also a bar in equity. Sugden on
Vendon, 272.
The power of attomer from Thomas Boone
to George Boone gava him authority to do all
that he did do. Under Uut power George
Boone gave up the original bund to the execu-
tor of Uoy, as ha found the land waa covered
nth adverse claims; and he took another bond
to malce a title to other land. This was a full
eompliance with the obligation, and after this
tha tenants purchased from South, who had
the bond in hia poaaeesion. They paid him,
snd thej were in possession for upwards of
thirty yeara before Thomas Boons commenced
this suit. It Geoige Booue exceeded hia au-
thority, itrho is to suffer r Certainly, Thomas
Boone. He remained silent for thirty years, and
Diade no manifestations of a disavowal of the
seta of his attorney. Will not the court pre-
snme everything in favor of a possession held
under such circumstance* T Will they not pre-
•ame a conveyance from Thomas Boone, or
tome ratification of the acts of nis attorney, to
thoae who thns held the land! Cited, Brigbt't
S^n *. McElroy, Wheat. 1 PbU. ed. 12*; 10
John*. 337.
Twenty years' possedhlon of land in Ken-
ta^y bars an action of ejectment; and if A
has been for that time in possession, claiming
imder B, a conveyance is presumed. Thirty
mrs ia a bar to a writ of right, and a patent
li presumed after that tim& As to prcsump-
lion in favor of possession, cited, Cowp. 216.
This ia a stale claim, which, having slept for
■early half a century, is now to be sustained
bj a eonrt of eqnity, after the limitation of an
•feetment, and even of a writ of right. It will
recetva no favor. It is also contended that the
eement between Thomas Boone and Boone
I, makes this a ease of champerty. Cited,
^ies,
1 Hawk. Pleas of the Crown, 4Tl,'ch. 2T) SUt-
ate of Hen. VIII. against purchasing pretense
Otfee; r*- ■— " -■ • • ■ — *:—...-
Dlfc216.
Utlea; Dig. Law Kentucky of 17B8|
g pret<
; litti
a guardian should ban been appointed by the
court. George Boone, or his heirs, and Reuben
Searcy, or his heirs, were also necessary par-
ties. Cited, 3 Bibb. U.
Mr. Ciitt<.nden, for the appellants, argued
that this case is no more than the coinmoa
claim of the holders of an e.iuitable title to ob-
tain the legal title; to which tliey have full
right in equity. The evidence in tbe record
fully establishes the right of the complainants,
under Starcy; and that ri)(bt Ihcy have never
|«rted with. Neitlier tbe frauds of George
Boon*, or that of Chiles, can avail Ic Uekut
their rights; and laat of all, will tbis court be
disposed to protect Chiles, wlio, wiib a full
knowledge of tbe rights of the complainants,
lias sought to defeat them, while pretending to
establish them.
An objection has been raised on the ground
that the bond does not sulliciently tJeiicribe the
land, so as to enable the court to carry the con-
tract into execution ; but this is not well found-
ed. The tract of land is named, and the con-
tract is for one half. The decisioTis of the
courts of Kentucky sustain a claim of this kind,
and it is the delight of a pourt of equity to
carry contracts into execution, if it can poMi-
bly be dune. The construction of the piiwers
of chancery claimed by tlie defendants would
defeat its tegitimatc and most necessary and
most salutary funclions. If any difficulty does
exist, the court will have tlie portion allotted
by a reference to a com ntistiio tier, a practice
which exists in Eng'aiid, as well as in this
country. As to tlie excess of land, it is incon-
siderable; certainly not sulTicient to rdjuire
that the contract shall be reformed-
It has been contended that the transfer of
the plat and certificates by Searcy to Toy, was
a performance of the bond. This was not so.
Performance to Hoy was not performance to
Boone. But if Seari'^ did comply with his
bond, still the compluinnnCs have their ri}rht*
against Hoy, to the same extent a* against
Searcy. The assignment is special, and is
equivalent to a bond from Hoy to convry, and
the bill is against his heirs. *While it [*19S
is said Searcy has complied with his contract,
it is yet said he or his heirs should he made
parties, llie only important questions in this
case are, whether Thomas Bonne lias parted
with his rights, and whether these rights are
lost by lapse of time.
The power of attorney to Geor^ Boons
gave no right to set! the land, or to impair the
title to It. It authorited his completing the
title, and no more. Those who claim to derive
a benefit from the acts of an attorney must
look to bis powers. The assignment made by
George Boone to South, purports to be under
the power of attorney; and yet no such author-
ity was given by it.
Nor can tbe allegation be supoorted that
Thomas Itoone parted with liis right to Heze-
kiab Boone. It was a conditional contract, and
the condition was not performed. It w«s aban-
doned by llezekiah Boone, and he paid no part
of :he consideration mentioned in (lie agree-
iT.rnt. Chiles sought out Hezckiah Boone, and
availed himself of the agreement, ualng the
name of Thomas Boone to obtain in the Bour-
bon County Court a title in him; thus availing
himself of Thomas B one's aquity, procured a
SuraKMB COUST OF TUB UHITB* St&TBB.
ISM
it*d to b# made to htm. Thia wu in 1817,
mad the prfsent luit was eomnienued in 1822.
The lipse of lime is no hue ia favor ot tho
tenants. While tlie genera,! rules in favor of
presumption arc nU ili'nird. it is nnt admitted
that they apply to the claims set up by them.
Mere poaspt>s.on ia nothing;, and the right grow-
ing out of it depends on the character of that
Eossession. Possesaion is merely adverse, when
eld subordinate lo the party from whose title
It is derived. Under sueh circum stances it in-
ures to the benefit of him who has the right;
and this wat the case of the tenants; not hav-
tDg entered under an adversary title, they can-
not claim adversely. But whatever m'ght have
been the position of the tenants, under a long
powession. Iind they rested on their possession,
and resisted tlie claims of all who desired to in-
terfere with them upnn it, they surrendered all
such protection when they purchased from
South, who claimed no title but under the bond
of Boone. In 1792 and I7B4 they took that
title derived from Hov, and they remained un-
der it until 181T. The' evidence fully estshlishea
that they never set up any other title; they
I0D*] alleged DO 'conveyance, but asserted to
derive all thcv had under South, who asserted
that he had Thomas Boone's title, derived from
the bnnd. Thus they always recognized the
rights of the com plain ants.
The decree of the Circuit Court pives to the
eomplainn.nts four oarta, or one half ; hut if the
title remained in Hoy's heirs, they show a title
to six eighths, or two thirds, and they have also
the right of Mrs. South. The only remaining
rt;rht Is that of Newland and wife.
They conveyed to Green Clay, who conveyed
to William Chiles, anj the qupstion is whetlier
Ciay wsa a bona fide purchaser. This is denied.
He did not stand in a situation to have any
protection as such. In his answer he denies
notice (generally, but he does not deny all the
allegations in the bill. To entitle himself to
protection, he must show payment of the eon-
slderalion before notice. He must allege that
the persons under whom he claimed were scixeJ,
or pretended to be Beizeil; and the evidence
shows (hat Newiand and wife were not in pos-
session, but that the land was in the actual
possession of otliers, claiming title. This was
enough to put a party on inquiry.
Chiles asserted in his hill in the Bourbon
Court that Cloy hnd notice, and the deed from
Newiand and wife is a mere quitclaim deed.
It in denied that the hnliier of a mere quitelaim
deed can be a bona flde purchaser. Chiles
not avail himself of Green Clay's title, even it
it were valid.
The statutei of Kentucky make a deed, exe-
cuted under a decree, vest the legal titie] and
Chiles, under the decree of the Bourbon Court,
hod a legal title to the land. The reversal
of the decree did not devest the title. But if
It did revoke the deed, it was like a purchase
pendente lite; and thii court Is not bound to
Al to the allegation that the case is affected
champeity by. it will be found on a reference
to the Kentucky statutes that no law of cham-
perty existed at the time of the contract be-
tween "Thomas Boone and Boone Envies. Sub-
•cquent to that time tbe law was revived, but it
had been repcalad.
Mr. Justice BaMwin delivered tbe ftpinlon of
the court:
•Reuben Searcy waa entitled, in vir- f'SOt
tue of the law of Virginia ot May, 1778. as u
actual settler, to four hundred acres of land in
right of settlement, and a pre-emption of one
thousand acres adjoining; one half whereof be
gave Co John Martin for location and patsnt-
ing. and by bond dated !!4th September, 1781,
bound himself to convey seven hundred acres
thereof to William Hoy, "as soon as deeds are
made to lands in thia country in general." Hoy
was to have the first choice of the lands — he
bought Martin's share. On the 15th Decem-
ber, 1781, Hoy, by an indorsement on the bond,
assigned it to Ceorge Boone, his heirs and as-
signs; obliging himself "as surety to the within
bond, and if the within lands cannot be ob-
tained, by reason of a prior claim, then, and ni
that case, seven hundred acres, equal in qnal-
ity and convenience, shall dischaive the withhi
bond." On the 30th April, 1783, George Boone,
by another assignment on the bond, aaaigDed
his right to Thomas Boone, his heirs or aasigni,
without recourse, if Hoy or his heirs are suf-
Ticient to make good the bond; if not, George
Boone bound himself and heirs to tnalie it good
to Thomas Boone, his heirs and assigns.
William Uoy obtained a patent In fals own
name in ITSS, for the whole tract; containing,
by actual survey, about two thousand acre4.
Thomas Boone was in Kentucky in 1802, ISIO.
and 1810, in the neighborhood of the land, hut
nvver took possession of any part, or instituted
any suit to recover them; lie resided and died
in Pennsylvania. In 1823 he filed a bill in tba
Circuit Court of Kentucky against William
Chiles, Hezckiah Boone, George Boone, Nicholas
Smith, Jun., Nicholas Smith, Sen., Jacob
Smeltzer, George H. Baylor, Joseph Smith,
John Evalt, and Joseph Cummins, praying far
a conveyance of the legal title, and account of
rents and prolits, and such other and further
relief as his case may require. After his death,
in December, 1617, tbe bill was duly revived
by his heirs. By an amended bill the heirs of
John South were made defendants, in 1824.
By another amended bill, the heirs of William
floy were likewise made defendants, in 1827.
In 1832 the plaintiffs, by an amendment to their
bill, averred that Reuben Searcy was dead, in-
testate, and without heirs in Kentucky, and
made the heirs of George Boone parties.
The several answers of tbe defendants pi*-
sent distinct cases *for our oonsidcra- ['201
tion; esch depending on its own circumstancea,
requires a separate view and examination; that
of William Chiles will be first considered. The
general ground of relief set forth by the plain-
titls against all the defendants is founded on
the assignments of Searcy's bond to Thomas
Boone, as conveying the equitable title to the
seven hundred acres, of which Hoy held tin
legal title; on this the general equity of tbe Mil
depended, wliich the plaintiffs made out. In
the original bill, it was charged against WilliaiB
Chiles that Thomas Boone, by the bond and
assignments, had a clear equity to the one half
of the land patented to Hoy {but was cMitent
to hold the parcels decreed to Chiles, as aftar-
wards explained), of which plaintilT had nc*<r
been devested. That in 1802 he bad mad* aa
t he would aODT«r to Hoeklah
Patent*.
Bixi.su Bc AL. T. Chuxs rr tt.
m
Booin, provided he won Id pay hini in four
jun, seven liundred jioundsi but the purchasa
w>a declined, no inciney paid, and the arrange-
ntent givrn up. Tliat in 1818. Cliites and the
oUicr defend lints, in tbeir own and compli
aat'a nutiti'. tiled a bill in tlie Bourbon Circuit
Court u[ Kentucky against the lieira of Hoy.
dtarging that plaintiff sold the land to Heze-
ki«li BMine. and he to Chiles, «,nd that all the
plaiatiK's in Uiat suit desired the heirs of Hoy
to couiey the \ti'al titJe which was urayed for
by the liill; tiiHt Chiles obtained a decree for a
conveyance, and a deed from a commissioner
B|jpointed liy the court, to himself, of the inter-
est of Hot's heirs; Chiles having full notice of
Thomas Hooni^'a title, and that the contract
uith iU7«hiiili Doone had not been ciiniplied
with. The bill also ehftr);es that the Buuruon
suit was fraudulently instituted, end proaecuted
uilhout the knowledge of Thomas Boone; that
he never consentErd that the deed should be made
U> L'hiks. who bad no just elaim to the land,
liiil hud engiiged to maintain Smeltzer, Smiths,
iCvalt, Cumniias, and Baylor in the possession
n[ it. Chiles, in hiB answer, admits the bond
and aasif^nment to Thomas Boone; he then seta
up B sale by Thomas to Ilezekiah Boone, and
that on the 30tli October, 1817. be (Chiles) pui
dia-^ed from the latter by a written contract n
leiretl to. He admits the suit in Bourbon
County was brought hy himself, Thomas Boone,
the now complainuiil. George and Herekiah
Boone, on which there was a decree and con-
vey iince made to him as charged, and re-
102*] fers to 'the proceedin)^ In that suit:
relying on it as a bar to all claim by Thomas
Boone for the purchase money. He admits
lull knowledge of plaintilTs' interest, coupled
with the knowledge that he had parted with it;
that the sale was ratified by his agent, by pow-
rr of attorney, and the a^fent's signature to the
contract of purchase, both of which are made
Srt of his answer. He insists on the sale to
lekiahi denies fraud in instituting the Bour-
1-on suit; and answers its being done without
plaintilts' knowledge, by averring it was under
ttie power of attorney, and contract with Heze-
kiah Boone, and pleads the record as an estop-
pel in bar of plaintiffs' assertions, which he de-
0* Also farther states that be baa purchased
oat and holds the interest of Hoy's heirs, as he
«an show by title and contracts regularly made
out. and seta up the lapse of time and totil der-
eliction of his claim as a bar to plaintiffs' right
tu any land. The answer concludes by aver-
ring; payment by Hezekiah to Thomas Boune
of the money due on the contract of 1802; if
any balance is due. offers to pay it, but insists
U)«t plaintiff has no right to the land to which
Chiles holds the l^al title, and has a right to
bold it; on doing equity to plaintiff, if not al-
ia the amended bill against Hoy's beirs. the
plaintiffs charged Chiles with having fraudu-
lently, uid with knowledge of Thomas Boone's
squitalile interest, obtained a conveyance of the
title al three of the children of William Hoy.
uoe of whom Was Celia Newland and her hus-
liand.
In linswer to thia bill. Chiles admits the pur-
ebaw from two of thcae children directly to
ktntsrir, knd th«t NewUod and wife aotd to
fl L. cd.
Green Clay, who conv^ad to him : be then al-
leges Clay to have been an innoceiil purchaser
for a valuable consideration, wiiltout notice,
till his purchase, was com|iletc, and prays pro-
tection as to thia part of the land.
This presents the contest between the plain-
tilfs and Chiles in a double aspect: Tirst, as to
his claim generally, and next as to his claim
under Green Clay, as to the share of Mrs. New-
land, which will be distinctly considered. The
Kiver of attorney from Thomas to George
one. dated 1st October, 176T. authorized him
to deninnd and receive a deed from William
Hoy lor the seven *huoiIred acres, to [*2I)3
act fully for him in the premises, to appoint
attorneys under him; and on rcci'iving a title
and conveyance in the name of T1iijiu,l3 Boone,
to give a discharge of the bond and Ho^'s en-
gagement. The agreement between Thorns I
and Hezekiah Boone, dsteil 30th Nivemhcr,
1802, was for the conveyance of this laud for
seven hundred pounds, to be paid in four years,
with an option to Hezekiah, within that time,
to take the lapd or not.
The agreement under which Chiles claims to
have purchased is in the following words:
"Articles of agreement made and entered
into tbe 30th day of October. ISIT, l>ct>v<.>en
Hezekiah Boone, of the County of Woodford,
and George Boone, of the County of the county
of Shelby, of the one port, and William Chiles.
of the County of Mont{;<imery. of the otiiei
part, and all of the Btate of Kentucky, witness-
eth. that the said Hezekiah and George has this
day delivered up to the said Chiles all the
papers they hold relative to the tract of
land conlainins 700 acres, it being a part of a
settlement and preemption grunted by the mni
misxioners to Reuben Si-arcy; and the said
ilczirkiata and Georf;e Boone further agrees
that the said Chiles shall have the free use of
all the said papers, for the purpose of coercing
tbe title to said land, if any is to be had, if nut
to get the amount in cash; and the said Chiles,
on his part, is to use diligence in girtting the
title or the cash for said 700 acres of land, and
hereby authorized to effect the above pur-
poses, either by suit or by compromise, pro-
vided the compromise is not tor less than three
thousand dollars, as he may think the moat ad-
.ntageous to the parties to this article; and
e said Chiles further agrees, on his part, to
fray all the expenses of the above-mentioned
investigatioas ; and when the above business is
finished, the said Chiles agrees, further, to pay
the one equal half of the prnceeds of the
above business, if in cash or bonds, and if in
land, the one equal half of what may be ob-
tained, to tbe said Hezekiah Boone, and the
other half the laid Chiles keeps for himself;
and the said George Boone declares himself «it-
isHed with the above contract. For the true
performance of the above, the said Chiles and
Hezekiah Boone bind themselves each to lh«
other in the 'penalty of ten thousand [*204
dollars. Given under our hands and seol^i tbe
date above written.
''Hezekiah Boone, [seal.)
"George nnonc, [seal.|
"Attorney In fnct for Thomas Bouqjs.
"Teste, etc. William Chiles, {seal.}"
These are the papers referred to in Chiies's
answer, on which he relies to make himself a
S91
SUPBBHE CoUBT OF THK UldTBD STATES.
porchaM-r of tliR equitable title of Tbomaa
Boonp; under ivhicb he obtained a decree of
tlie Boui'bon Court, a deed froni the commia-
aioner of the whole legnl title (^ Hoy's hein,
and a di>ed from two of them to himself.
From the evidence In the record, It appeara
very clearly that Hezekiah Uoone never com-
plied with the agreement with Thomas Boone;
paid no part of the purchase money ; and aban-
doned the contrnct many years before the agree-
ment with Chilea, to whom the state of the
contract v-tia explained hefore hia agreement
with Heieltiah and Geormj Boone. As a mat-
ter of law, il ia equally clear that the power of
attorney to George Boone gave him no author-
itj' to aell the land, or to take a conveyance
from the heirs ot Hoy to any other )>er90n than
Thoniaa Boone or his heira. Chiles admita that
when the agreement waa made between him,
Hezekiah and George Boon ', le l-aew ol tlie
title of Thomas Boonc; that lie inittituted and
conducted the suit in tho Bourbon Court, under
the power ot attorney to George Boone, who
signed the agreement of IBI7, as the attorney
in fact of Thomafl. Chiles does not pretend to
ha\e ever paid, or at;reeU to puy anything for
the land ; on the contrary, the agr«:ment Hhoivs
he waa to pay nothing from his own pocket, in
any event, except the expenses to be incurred.
It does not even purport to be a purchase, or
coiin.iiti one clause or word which can be
construed ni lueh. The papers are delivered
ui> to him [or the purpose of coercing the title,
ur getting the amount in cash; one-hall of
whidi. in case of success, he Is to give to Hezc-
kiah Boone, and retain the other for his ov/n
use. Nothing ia to go to Thomas. George
Boone, liit agent, coiiitents to it. and Cliiica
procures the kgal title to hlmaelf in virtue of
tlie^ pafxTs
S05*J *Buch ia the case between the porties.
as preaented by the pleading'), exhibits, and
evidence. A court of equity must l>e regardleas
ol nil ilK rules, before it can rccogniu Chiles as
a purchaser, or as havin}; an^ right whatever
in the luiid; it must also forfeit its character, if
it sanctions auch a course of iniquitous fraud.
We dei:ni it »hally useless to contruit the rela-
ti.e K^u-iii-i of the pluintiUs and Chiles, io
order to affirm their right to a decree for the
conveyance of the legal title, obtained in viola-
tion of every principle which govern courts of
equity, unless he has made out some objections
to the relief prayed, on grounds unconnected
with the justice of the cnae.
It is objected that, inasmuch as the condition
of Searcy's bond to Hoy was satisfied on the
latter obtaining the patent, the plaintiffs can
have no equity by its assignment. This would
be a auflicient answer to a suit against Searcy.
but ia none to a suit against Hoy's heirs to en-
force tlie performance of the terms of the as.
signment from Hoy to George Boone, which
were an agreement to transfer the seven hun.
dred acres, or an equivalent in ^juantity and
convenience. Aa between Hoy and Boone and
his assigns, this gave a right to call on Hov for
the legal title, which Chiles has Uken to him-
■elf, when the equity was in the plaintjffai
whose equity depends not on the bond of Sparcy,
but the contract of Hoy, made by the assign-
ment of his equitable interest in the land
This view ot the case dispoaca of the objec-
S»S
sity for his making the selection,
" immaterial to him which part he held
tion that the hetra of Searcy are not parties;
they had no interest In the land ; their father*!
bond waa aatislled by the performance of th«
condition when the patents were olitained by
Hoy, who, by purchitse from Martin and
Searcy, held the legal title to the whole four-
teen hundred acres, subject to be devested only
by the equity of Boone, derived by this agree-
nient to transfer the one-half. No act, there-
fore, remained to be performed by the heirs of
Searcy; the title of Boone becomea complete by
the union of his equitable with Hoy's Ii^:^l
title, without any interposition of the heirs ol
Searcy, who have no interest to defend or title
to convey. The purchase from Martin re-
moves another objection, arising from Hoy
having the first choice of the land, and dying
without having made it; whereby, as is alleged,
the aubject matter of the 'bill was too [*30V
riigiie lo autb=i'i/i! a decree in favor of the
plaintitis Aa Ro^ held the whole tract, ther
it being irr
under Martin or Searcy; hia not making the
election, and holding the whole in fraud of the
rights of his assignee, could not pi-ejudice him,
to whom he had traiislerred aa well tlie right of
selection aa the land itself in equity. Inde-
pendently, however, of this consideration, we
think that tlie identity ot the land ii> ascer-
tained by the teruiii ol the bnnd and assignment,
as well as the parties the:ose1v>'S; It was the
one half of the claim of Searcy, both by pre-
emption and settlement, to be cho^rn by liny;
whose aesigiiecs had the same right to cho-ne
as had been in him fliiles. under the [ rt-tcnse
and claim of being Hoy'a asaignee. made tlie
choice by selling to the Smiths and Sm.'!t;-pr
the parts of the land on which thev residivl;
and the plaintiffs, by their nri^nal bill, agree
to take their share of the land, according to the
decree of the Boiiriion Court, in that pl.ice.
This selection is, therefore, binding on both
parties; so that Chiles ia not at lilierty to con-
test the location, made Erst by his own act in
the sale to the occupants, confirnied by a de-
cree obtained at his own suit, and agrei-il to by
the plaintiflo as to the part to be couvc; jd.
It ia further objeit^il tlut lliore ia a surplus
in the survey to which the heira of Boone
are not entitled; if this objection could be aun-
tained by any of the parlies Xn this suit, it
could be only by those whose rights by purchase
or possession would be disturbed, bv deereeing
to tlie plaintiffs more than the seven hundred
acres Aa Chilea lias neither any right by pur-
chase, or any equity by long posiession or im-
provements, but claims only by the fraudulent
assumption of the plaintiffs' equitable title, tha
land exclusively claimed liy him would be the
first to be appropriated to them, and any sur-
plus would be reserved for the beni^flt of thoa*
who had some pretensions to an equitable in-
The lapse of tine and the stalenes^ ol th«
plaintilTB' equity la also set up aa a bar to a de-
cree in their favor; but whatever elTeet tim*
may have In equity in favor of a possession
long and peaceablv held, it can have none in
favor of Chiles, wiiose only claim is under tha
equity of Thomas Boone, and against whom
the pL■eBc^t 'suit ivaa brought in [*IOT
six yean after tb« flrnt interfered with Ik It
PeUM IQ.
BOOKE ET Al. V. CuiLsa.iT At,
MT
OBllot be permitred to bim to acquire thp lecal
title of Hoy, in virtue of Boone's equit;, and
to hold it to hi!' omi use, on the grouni! tliat
Boone') right hud become extinct by the lapse
of time before he a<rqurred it. The means by
which the l^al title has been conveyed to
(Ailet ba»e alTeeted his conscience too deeply
*fth fraud for a court of equity to suifer him
to CDjoy Its fruits. As to him. the plain'ilTs
hi»e estaMished a right to a decree for the con-
Teyance of whatever title he may have derived
by any conveyunce to himself directly, of the
^gal right of Hoy's heirs.
The nest aspect of the case between the
pUinliffs and Chiles is presented by the inter-
position of Gretn Clay, as an innocent pur-
chaser from Newland and wife, for a valuable
eonsideratiL'n. without notice, under whom he
In the amended bill, the plaintiffs charge the
purchase from Newland and wife to have been
■Bade fraudulently, and with notice of their
title: in answer to which Chiles states that
Green Clay bought and received the title from
John Newland and wife, knowing which, he
made him a defendant in the Bourbon i>nit.
Purging him to be a guilty purchaser, with
notice of llie equity arising from the bond of
Hoy; but. Clay denying nolice, and not being
able to prove it. Chiles bought his share, paid
for it, and obtained a conveyance. He then
refers to Clay's answer in the Bourbon Court,
and insinta that Clay was an innocent purchaser
for a valuable consideration, without Qotice,
lill bis purchase was complete.
In that suit Chiles had charged Clay not only
«th notice, but that he purelinsed from New-
land and wife, binding himself to make good all
the contracts of William Hoy In his anL«er,
Ctay states that the contract he made with
Newland and wife was bona Gde, in good faith,
for a valuable consideration paid thein without
aoliee, or knowledge of any claim by Chiles;
which be briievcs is founded in fraud and im
position; "as to the contract between this re
ipondent and Newland and wile, it is com-
mitted ta rerord, and will apeak for itaelf ; ana
tliii reapondent believes the complainant Chiles
has misrepresented the true roeflning thereof;'
but does not deny the averment that he was
lOS*] 'bound to perform Hoy's contracts. The
Miswcr of Newland and wife to this part of tbe
amended bill states that, if they ever had any
interest in the land, they have transferrt-c! their
interest by a writing, amounting to a quitclaim.
to Green Clay, but they never convajtd their
title by deed to him or anyone else. This is
tbe substance of all the pleadings on this part
af the case. In I82I the Bourbon County
Court made a final decree in favor of Chiles i
U well a^inst tbe heirs of Hoy, as Green
Clay; which was reversed by the Conrt of Ap
pealt tn 1S27 for the want of proper parties.
without any examination of the merits.
In March. 1825, Green Gay, by his tnden
tnre, granted to Chiles all the right, title and
interest which be holds by a deed from New-
land and wife, dated 23d of Hay. IBU. to the
tract of Searcy, and a pre-emption and settle
ment-right of one Townsend. in consideration
nf two hundred and sixteen dollars, with war
tanty a^inst himself and heira, but agalnat no
rther peraa^
• Ii. •«.
The deed from Newland and wife to Gt«en
Gay was not referred to in tbe pleBdLiii>4 niadv
an e.\hibLt in the cause, or, so tar as Hppears.
used in the Circ.ut Court; it was no pnrt of the
record before us at the argumi^nt of tlits cause
at the last term, and no sug^iestion of diminu-
tion was then made. At the Hay sessions of
the Circuit Court, on a auggealion of the de-
fendant that this deed was on file and had been
used at the hearing, the court ordered it to be
certified to this court; and tbe counsel tor
plaintiffs having agreed to consider it aa re-
turned on a certiorari, it has been read, and we
have taken it into our consideration as an ex-
hibit in the cause. In doing this, however, we
must be distinctly understood as clearly of
opinion that it is not admissible by the rules of
appellate courts, who can act on no evidenm
which was not before the court below, or re-
ceive any paper that was not used at the hear-
ing. S Pet. 731. Nor would it hare been a
proper subject tor that court to have consid-
ered, bad it been offered to make out the ease
of the defendant; the deed was not set up or
relied on in the answer of Chiles or of Clay,
which was referred to and made a part of it;
the existence of snch a deed was no part of
their atle^tions. Clay asserted merely a eon-
tract; Chiles alleged only that Clay bought and
received the title of Newland and wife, with
out stating what the 'title was, or how [*209
purchased; whether by deed or otherwise.
There was. therefore, no alteration in the an-
swer of either which referred to the deed; it
was not made a part of their case, which wa*
put on a contract of purchase, and not a deed
consummating it by a conveyance, A party U
not allowed to state one case in a bill or an-
swer, and make out a dilTerent one by proof:
the atlegata and probata must agree; the latter
must support the former {4 Msd. R. 21, 9; 3
Wh, 527; 6 Wli, 4G8; 2 Wh, 380; 2 Pet,
612; II Wh 103; 6 J. R. 5SB, 83; 7 Pet.
274); and there is no one subject of equity
cognizance on which there Is a wider dilTerencc
between a deed and a contract of purchase.
than in the one now under consideration. A
purchaser with notice may protect himaelf un-
der a purchaser by deed without notice, but
cannot do it by purchase from one who holds
or claims by contract only. The cases are
wholly distinct. In the former, the purchaser
with notice is protected; in the latter, he baa
no standing in equity, for an obvious reason —
that the plaintiffs' elder equity shall prevail,
unless the defendant can shelter himself under
tbe legal title acquired by one whose conscience
waa not affected with fraud or notice, and who
can impart hit immunity to a guilty purchawr,
as the representative of his legal rights fairly
acquired by deed, in such a manner as eiempti
Iiim from the jurisdiction of a court of equity.
Such a purchase afiixes no stain on the con-
science, and equity cannot disturb tha legal
title. But aa it does not pass by a contract of
purchase without deed, the defendant can ac-
quire only an equity, the transfer of which
does not absolve him from the consequences of
his first fraudulent purchase His second pur-
chase of an equity will not avail him more than
the first, for the original notice of the plain-
tiff's equity taints his conscience, so as to maka
him a mere trustee, if h* hold* the legal title
2M
SDraBHE CODBI or TBI UtmiB SlAIB
18U
from one who fa not an Innocent, bona fide
fiurchaaer. If, tben. Green CIOi; purchaBed on-
y by contract from Newlaod «nd wife, they
held the legal title ; such was the case present-
ed by the answer on wliich Chiles must stand
at the bearing! but if permitted to rely on a
deed, the court would render a decree on a case
not before them, or one which the plaintiff
would be prepared to meet. 6 J. C. 349- For
these reasons we should hava onitted kny notjoe
of this deed, but as it bo* been commented
Z1D*1 *0D in the ar^ment, and it is for the
InUreit of all parties that the merit* of the
eftse be finally adjudicated; we have, for this
purpose, considered it as eviilenee in the cause.
It is an Indenture for the eonaideration of
(mt hundred dollars, granting to Green Clay,
his heirs and assigns, all the right, title, claim,
and Interest of Kewland and wife in the real
and personal estate of William Hoy; all debts,
dues^ demands, rents, and profits, in law or
equity, to which she was entitled as one of his
heirs and legatees, with warranty against them-
selves and all claiming under them ; but against
no other person whatever; and with, also, an
agreement for further assurance, but in eucb a
way as not to make themselves liable further
than to convey such title as descended to them
from William Hoy.
This Is the case set up in the answer and
made out by the proofs in the cause, to make
out Green Clay to be such a purchaser that his
deed to Chiles will absolve the latter from the
consequences of his fraudulent purchase, with
full notice of the plainttlTa' equity; whetber
this is such a case as will give to Chiles the
protection he claims, depends on the rules
which courts of equity have adopted as to bona
fide purchasers, for a valuable consideration
without notice.
It it a general principle in courts of equity
that, where both parties claim by an equitable
title, the one who is prior in time is deemed
the better in right [7 Cr. 18; 18 J. R. 632; 7
Wheat. 4S); and that where the equities are
equal in point of merit, the law prevails.
This leads to the reason for protecting an
innocent purchaser, holding the legal title.
against one who has the prior equity: a court
of equity can act only on the conscience of a
party; if he baa done nothing that taints it, no
demand can attach upon it, so as to give any
jurisdiction. Sugden on Vend. 72Z. Strong
aa a plaintiff's equity may be. it can in no case
be stronger than that of a purchaser who hae
put himself in peril by purcnasing a title, and
paying a valuable consideration, without notice
of any defect in it. or adverse claim to it; and
when, in addition, he shows a le|{al title from
one seized and possessed of the property pur-
chased, he has a right to demand protection
■nd relief (9 Ves 30-34), which a courl
of equity imparta liberally Such suitors
SI 1*] *are its most especial favorites. It will
not inquire how he may have obtained a statute.
mortgage, cncumhrance, or even a satisfied le-
gal term, by which he can defend himself at
bw, if outstanding; equity will not aid bis ad
versary in talcing from him the tabula in non
frncio. if acquired before a decree. Shower.
P C 69; 4 B. P. 328; 1 D. ft E. 767; P. C
M: 7 V. 6T0; 10 V. 268. 70i II V. 616: 2 Ch
Cas 13B. 6; 2 Vin. 161 1 1 Vent lOB. Be
409
lief will not be grmnted amimt Mm In faiur of
the widow or orphan (P. C. 249; 2 V. Jun.
4S7, 45Si 6 B. P. C. 292) ; nor shall the hei<
see the title papers |1S Vin. IIG; 1 Ch. Cm.
34, 69; 2 Freem. 24, 43, 17S; it is a bar to a
bill to perpetuate testimouy; or for discover?
(1 Harrison's Ch. E61, 263; Sugden, 723, TS4|
1 Vimon, 3M), and goes to the jurisdiction
of the court over him; bis conscienca being
dear, any adversary must be left to hi* remedy
at law. E V. Jun. 467; 3 V. Jun. 170, 183; fl
V. 30. and IB J. R. 632; 7 Cr. 18.
But thia will not be done on mere averment
or allegation ; the protection of such bona fid*
purchase is necessary only when the plaintiff
has a prior equity, which can be barred w
avoided onl^ by the union of the legal titla
with an equity arising from the payment of tha
money, and receiving the conveyance without
notice, and a clear conscience. It is setting
up mntter not in the bill ; a new case ia pra-
sented, not reapnnsive to the bill, hut one
founded on a right and title operating, if made
out, to bar and avoid the plaintiffs' equity,
which much otherwise prevail. 6 V. 33. 34. Tha
answer setting it up is no evidence against tha
plaintiff, who is not bound to contradicL or re-
but it, 14 J. R. 63, 74; I Munf. 396. 307; 10
J. R. S44, 8; 2 Wh. 383; 3 Wh. G27 ; 6 Wh.
4081 1 J. C. 461. It must be established iS
flrtnatively by the defendant independently ol
his oath. 6 J. R. 659; I J. R. 690; 17 J. R.
3B7; 18 J. R. 632; B J. C. 87, 90; 4 B. C. 75;
Amb. G80; 4 V. 404. 687; 3 J. C. B83. In set-
ting it up by plea or answer, it must state th«
deed of purchase, the date, parties, and content!
briefly; that the vendor was seized in fee, and
in possession ; the consideration must be stated,
with a distinct averment that it waa bona fidt
and truly paid, independently of the recital in
the deed. Notice must be denied previous to,
and down to the time of paying the money
and the delivery of the deed; and if notice is
'specially charged, the denial must be [*S1S
of all circumstances referred to, from which
notice can be interred ; and the answer or plea
show how the grantor acquired title. Sugden,
7H6. 770; 1 Atk, 384: 3 P. W. 2801, 243, 307;
Amb. 421; 2 Atk. 230; 8 Wh. 440; 12 Wh.
602; 6 Pet. 718; 7 J. C. 67. The title pur-
chased must be apparently perfect, good at law,
a vested estate in fee-simple. 1 Cr. 100; 3 Of.
133. 135; 1 Wash. C. C. 75. It must be by »
regular conveyance, for the purchaser of an
equitable title holds it subject to the equitiea
upon it in the bands of the vendor, and has DO
better standing in a court of equity. 7 Cr. 48;
7 Pet. 271; Sun.len, 722. Such is the case
which must be stated to give a defendant the
benefit of an answer or plea of an innoceaL
purchaser without notice; the case stated must
be made out, evidence will not be pemiitted to
be given of any other matter not set out. 7
Pet. 271.
Such are the privileges of innocent purchas-
ers, and such the guards against those whomBf
assume their character in courts of equity; w«
have only to apply their law to the answers of
Chiles and Clay, together with the exhibits and
proofs in the case, to ascertain whether Cla^
Tilled that character when he conveyed la
Chiles, or at any other time. The answers ar«
a> ttarnn ol the averments necessary to make •
PMan 1ft.
IBM
BOOITK ET M
V. Chiles rr al
eu
can of (aeli a puTchnw as woti1<T be protrrted
■gtingt the priur equity of the pl&iiitiRi as the
record Is of the proof of any fact to support it.
Nor does the eonaidi^rntian of the deed from
^fe1vl■^d and wife to Clay bring the cbbb any
nenrer to the establii^hed rules and principtet
of equity.
Though, in fonn, a grant by indenture, tt ti
in effect a mere release and quitclaim, as stated
by Newland and wife in their answers; it doed
not purport or profess to convey the land in
eontraTersy, nor does it assert any title to, or
seizin of it; the consideration expressed does
not apply to this land, more than to a !e|;acy or
penonal property. The grant it definite only
IB one respect, that tt ia of whatever descended
to the grantors from William Hoy, but does
not specify what it was; and the words of tlie
grant are fully satisSed, if anything so descend-
ed, whether realty or personalty. As to this
land. Hoy was a trustee by his om contract;
nothing did or could descend to his heirs but the
US*] shadow of dry, barren, "legal title, with-
out a beneficia! interest, which was all that
Newknd and wife intended to convey, or Clay
to receive by the deod. The covenants of war-
ranty, and for further assurance, are expressly
limited to their right, such as it was, and to
their own acts only; they pave no covenant
against the acta of Hoy, and by conveying only
anch interest as they held by descent, it passed
to Clay with the same encumbrances of Boone's
equity aa if it had remained in Newlnnd and
■rife; who, neither in their answer or Ly their
deed, pretend to any title or right. These eir-
nunstancea make the deed suspicious on its
face, and in the absence of affirmative proof to
support the recital of the payment of the con-
sideration, of any evidence of seizin, or even a
claim of title by the grantora, rather weakens
than sustain the answer. When we Und the
distinct admission and full proof of the prior
equity of the plaintifTa, with full notice to
Chiles, who claimed, not as a purchaser but by
a special contract with Ifezekiah Boone, for the
division between themselves, of whatever, either
of land or money, they could recover in right
of Tbomag Boone's known equity, and with the
plain intent to defraud him; the purchase from
Clay, and the setting him up as innocent pur-
chaser for a Taluable consideration without no-
tice, under all the circumstances of this case;
ao far from purging the conscience of Chiles of
its original taint, or imparting to him any pro-
tection as the representative of Green C^ay,
•tamps the conduct of both with bad faith.
Cbllea appear! on thia record a mere pretender
to a purchase; hy his agreement with Ilezekiah
Boone and Geor^ Boone, as the attorney in
tact of Thomas Boone, he purchased the title
of neither; his only claim under it was to the
one half of whatever he could acquire- He did
not, therefore, even flII the character of a pur-
ehoaer with notice, who by the rules oF equity
may purge bis guilty conscience by purchasing
from one whose clear conscience and legal title
p1ac« him beyond the jurisdiction of equity;
the imiiiunity of an innocent purchaser cannot
be imparled to the fraudulent usurper of an-
otlier's rights without purchase.
But there ia one circumstance which saves us
the necessity of considering the defects in the
averTiients of tha atuwera or proofa of the deed
from Kewland and wife to Clay, or from him
to Chiles.
■Chiles states, in his answer, that be ['214
ing unable to prove notice to Oreen Clay be-
fore his purchase from Newlnnd and wife, he
purchased from Oay; yet he did ao eil-iblish
the fact of Clay's guilty purchase that he ob-
tained a decree against him in the Hourbon
Court. E« purchased from Clay while that
decree was In full force, and now apyrears on
the record, claiming to be protected under thia
purchase by the equity of Clay as an Innocent
purchaser; whpn Clay, after beinii an ajudged
mala fide purchaser, by the final decree of a
court of competent junsdlction, clothed Chiles
with his own character by his deed in IHZS. It
would present the administration of eqiiit jur-
isprudence in difl^erent courts on very different
principles if Clay, who could not protect him-
self In the StaU court at the suit of Chiles.
could protect Chiles here at the suit of Boone;
or that Chiles, after procuring the decree
against Clay, in a suit to which he made Thom-
as Boone a plaintilT, on the ground that he pur-
chased with notice, should now obtain a decree
against Boone on the ground that Clay waa an
innocent purchaser, for a valuable considera-
tion fully paid, without notice of any defect in
his title, till it was complete at law by a con-
vej'ance in fee, and in equity by the actual pay-
ment of the money. Neither the pleadings, the
exhibits, or the evidence on this record, alTord
us any warrant for such a proceeding: on the
contrary, they make it our duty to decr« a
conveyance from Chiles to the plain ti if s, of
whatever right or title he may hare acquired
by the deed from Green Clay.
We are next to consider the cose of the plain-
tiffs as to the other defendants. The heirs of
South, hy their answer, diaqlaira any interest
in the land; nor does it appear that the heirs
of Ile7ckiah or George Boone have any interest
in the land or at any time have been in posses-
sion, or held any title under Hoy's patent. As
to these defendants, therefore, there is do sub-
ject matter for any decree, except for the dis-
mission of the bill.
As to the heirs of Hoy, the plaintiffs have
made out nn undoubted right to a conveyance
of the legal title. Those who have answered,
set up no title or claim to the land, and they
must execute the trust which has descended to
them, by conveying their legal title to plain-
tilTs.
'John Evalt ia admitted to have been [*Slft
<n possession for more than twenty years, under
in adverse title by pal"' '" "' ~ "" "
plaintiffs have, thercion
thus held.
Nicholas Smith states, In his answer, that he
holds fifty acres of the land claimed by the
plaintiffs, by purchase from John Junes, by
deed, which he makes an exhibit in the cause;
that this Hfty acres ia a part of Flournoy'a
patent, which he holds adversely to the claim
of Searcy. The deed Is dated in December,
1797, conveying, in consideration of one hun-
dred and twenty-five pounds, fifty acres of land,
with general warranty. Independently of the
deed from Jones, It ia clearly proved by several
witnesses that Smith made the purchase from
him, settled on the land in 1T08, where he lived
till his death; and that there was a continued
S15
SuPBEUE Cou«T OP Till United Statu.
pois^alon and rraidrnce on the land hj him,
And thone claiming under him, to the present
time, and valuable improvemPiitB ma'le. The
plaintiffs do not controvert this purchase or
residence 1 th^y do not charge Smiih with any
act affecting Ills conscience, or show that be
ever purchased, or made claim under tliem, or
■ny person asserting any rigiit under their title.
The title of Flatirnoy appears to be by an
equity older than Sfarcy'a, though his patent is
later than Hoy's. We can perceive no ground
of equity to entitle the plaintiffs to a convey-
•nce of the title thus acquired by Smith. He
and those under him have had an adverse pos-
mtsion of twenty-five years before the bringing
of thia suit, and his posseasion of the fifty acres
cannot be disturbed, either at law or in equity.
The only charge in the bill against the remain-
ing defendants is their combining to institutr
the suit in the Bourbon Coi^rt, ot which there
fa not only no proof, but the contrary appears
bs 'ha record of that suit; th«7 were not par-
ties, and took no part in the prosecution of it.
The bill, however, alleges that Oiilea "had
made some engagement to maintain Smettzer,
Smith, Cummins, and Bay'ior, in detaining
possession, and enjoying the profits for a lon.^
time past, still refusing to aurrcnder." Tim
prayer againat them was "to compel the de-
fendant, Chiles, or such of the defendants ns
now hold tlie title, to convey the tract described
by tlie deed under the decree to Chiles, to ac-
count for rents and profits, and such other and
further relief as his case may require." The
SIB'] 'answer of Nicholas Smith, Jun.,
Nicholas Smith, Ben., Jacob Smith, and George
H. Baylor.was joint and several; jointly they
denied being parties to the Bourbon uuit, or
being bound by the decree. They admit that
Searcy claimed the land; that it waa located by
Martin and patented to Hoy; allege a surplus
of five or six hundred acres in the survey, and
that plaintilT could be satisfied without dis-
turbing them ; plead the lapse of time and stale-
nesB of the demand as a bar, and deny the
right of the plaintiffs to recover. They atate
that they have been informed that Hoy assigned
Searcy's bond to George Boone; call for proof
of the aaaignment to Thomas Boone; charge
that if the bond was assigned to him, it has
long since been cancelled between Thomas and
George Boone; that George Boone assigned the
land to John South, investing him with all the
title to the land, which George Boone derived
from William Hoy, by the agency, consent,
and authority of Tbomas Boone, if the bond
teas ever assigned to him. They also charge
that South, by virtue of such assignment, held
the bond till hfs death, and Ihnt nis executor
held it till Chiles obtained it by fraud ; und that
they are entitled to certain parcels of land, by
Jurchase for a valuable consideration, from
obn South. They then aver that Peter
Bmeltier purchased four hundred acres and took
South'a bond, with surety, for the title; took
Kssesston of the same in 17S1, settled upon,
proved, and resided on it tilt his death. That
George H. Baylor claims under Smeltzer by
purchase from his heirs for a valuable eousid-
•ration ; now resides upon it, and that a con-
tinued residence has been kept upon the lancl,
on which theru are large and valuable improvr-
•lenta. That Nieliolaa Smith hold* two bun-
«»a
dred acres by purchase from Jacob Svrope In
1797, who purchased from George Popa in
I79E, who purchased from South in 1794. That
Smith resided on thin land from 1798. and made
valuable improvemonls tliprcon ; which resi-
dence had been continued by bim and thoat
under him, to the pirsent time. These defend-
ants, then, charge that Thomas Boone waa in
Kentucky in 1802, 1810, and 1819; knew of
the contrary, disclaimed it, in eonvcraation,
and then proceed to give an account of their
connection 'with Chiles, in aulistance [*111
aa followa: He came to the Smiths and Smelti-
er stating that he lield Hoy's legal title to the
land; that South 's bonds were worth nothing,
and they would lose the land and improve-
raents; whereupon they, ignorant of their
rights, and the title to the land, compromised
with Chiles, agreed to give him up Soutii's
bonds, and to pay him ten dollars an acre. In
three annual installments, for six hundred aerea,
each to pay for his own share. Cliiles was to
make them Hoy's title, but having received
South's bonds, he obtained from bis executor
the bond of Searcy; struck out the assignment
to South; gave up hia bonds to his executor,
shortly after which he rniiiineiiced the suit in
the Bourbon Court, and obtained the docree
referred to in the bill. They charge Chile,
with fraud in the whole transaction; pray that
their answer may be taken as a cross bill
against Chiles; that lie be compelled to restore
the bonds of South, or that they may have such
decree against him as their case may retinire,
and their contract with him cancelled. They
deny the plaintilTs' rights to rents nni! proflti
in case of recovery; but if they lose tlie land,
pray a just compensation for their lasting and
valuable improvemprls, and then sft up a con-
tract between Thomas Boone and a certain
Boone Englea, in 1822, in puriiiiance of wbicb
the present suit waa hniught by him in tbeir
names; which they allege to be within the
statutes of champerty and maintenance, on
which they rely, as well as on tlie common law,
the rules and principles of eijuity, and the
statute of limitation. Cummins claimed by
purchase from Smeltzer, which hia heirs, in
their answer, aver to be fraudulent; but if It {■
valid, they set up thirty ypurs' possession of
part of the land before suit brought, as a bar.
Nicholas Smith, by an aiucmled answer, refers
to a copy of Searcy's bond, with all the assign
ments thereon, previous to the erosnre of the
assignment by Georp; Boone to South; "under
whom all the tenants in possession, including
this defendant, claim their several portiona of
said seven hundicd acres of land; wlilcb a;
signment bears date August d. 1792. "An<l
if said South, as executor of William Hoy, ha.l
ever sold any portion of said one thousand four
hundred acres, or the moiety seven bundreil
acres claimed by complainants herein (for tJii~
seven 'hundred acres was never defined 1*218
to any of the original purchasers previous ti'
said assignment, which is not admitted], thin
defendant relies confidently that said assign
ment last mentioned of said bond to him, sai'
Soifth. would enure in equity to confiTm their
claim; nor could its subseouent cancellation,
(■r the surrender ot said bona, with the conaeni
Pe(«i« 1*.
IMS
BOONB R At. r. Chocb kt ai.
m
ri th« exeeotor or admlniHtntor of Sontli,
■ff«ct or tmp«fr their cIbItiis. He n'Cxhibita
tbc a>p7 of uid bond, with the severs] assitrn-
menta thrrffln, uid re1i«» on time and circam-
■tinws to thow that the one from Oeorftn
Boone to South waa done bj proper authority
from Thomas Boone."
The cause Has at iaroe on the general repll-
cation. At the hearing, all the material facta
allcf^ hy the defRndantj In relation to their
purchase from nnd under South, their a^roe-
ment with Chiles, the aurrendar of South'a
bonda to hia executor, and the delivery by him
to Chiles of Searcy's bond, with the anEgo-
menta thereon, were fully established by the
exhibits and proof* in the came; as alao their
poaaeasion, residence, and improrementB on
the land as stated in their answer. But they
wliolly failed in proving that the assignment of
SeanT's bond by George Boone to John South
was made with the knowledge, consent, or
authority of Thomas Boone.
South married a dauj^liter of William Hoy,
to whom he was executor; the agreement be-
tween Cliilcs, the Emitlii, and Smeltzer, was
Toade in 1817; Youth's bonds were given up In
the winter of 1817-'18, when Chiles received
the bond of Searcy; the suit in the Boitrbon
Court was commenced in January, 1818, and
la yet pending.
This suit waa commenced in 1S23, while the
decree of the Bourbon Court was in force, and
before any appesl to the Court of Appeals of
Kentucky; it was before this court in 1831, on
a eertifleate of division from the Circuit Court
of Kentucky, on the question whether they had
jnriidiction of the cause. It was then decided
that it had jurisdictiim; that the heirs of Hoy
were not neccsjiary parties, except for the pnr-
rie of obtaining the legal title if it remained
them; that a decree might be made without
than, aa to partiea properly before the court;
119*] that the heirs of 'George Boone were
not necesBsrilv defendants, and no proof need
be made respKting them, B Pet. 635, S37. All
qnntioTis of jurisdiction of partita are there-
Ioi« closed.
The objections to the plixintiSs' recovery on
Ibe ground of the contract between Thomas
Boone and Boone Engles being within the stat-
■tea of champerty and maintenance, cannot be
sustained for two reasons;
1. The English statutes on this subject, which
were adopted in Kentucky, punished the offense
and declared the contract tor maintenance void
between the parties, but did not direct or au-
thorize the dismission of the suit instituUd be-
tween other parties in furtherance of sncb con-
tract. Boone Englea ia no party to this suit,
and it doea not concern the defendants whether
it was commenced and is conducted by his
■gen^, or by the plaintifTs themselves; the
i^;ht of plaintiffs is not forfeited fay such an
•greetnent, and it may be aaaerted i^inat the
defendAttts whether the contract with Boone
Englea ia valid or void. S. P, Litt. Select Cas.
B2£.
2. By the Aet of 1798, which was in force
when thia contract waa made and auit brooght.
■o person could be prevented from proeecuting
or defonding any claim to land held under the
had laws of Virginia; nor shall any siut
brought te make gn>d such claim be considered
•I eominff within the vroviiions of the eonmon
law or any ttatntc uatut champerty or main-
tenance. 1 Uor. k Brown, Kent Stat. 2S2, S.
These statutes were not revived till 1S24.
The first question of fact which arises is in
what right the Smiths and Smeitzer first en-
tered upon the land purchased from South.
The vmeniled answer ol Nicholas Smith, Jun.,
is explicit on this point, sUting that all the
tenants In poascRsion, including himaelf, claim
under South, by the aasignment of George
Boone to him. Though this answer ia not evi-
dence against the other defendants, yet, as they
do not deny notice of the assignment to Thomas
Boone before their purchase, and in their an-
swer pray for a restitution of South's bonda,
there is good reason to believe the statements of
Smith, especially in connection with the proofs
in this cause.
'Barbara Smeitzer, the widow of [*320
Peter, testilies that he settled on the land in
1701; South came down and marked out the
four hundred acres; that it was held under
South, who claimed under the bond from
Searcy, assigned by Hoy to Georf^ Boone. That
at the time they first settled. South represented
to Smeitzer that he had traded for that bond,
they were soon after informed that lie had not
got the bond, but soon after obtained it from
George Boone; that Smeitzer smn afterwards
informed George Boone of what had been done,
who appeared well pleased.
William Johnson testlflea that Smeitzer pur-
chased from South, and began to improve in
1786. L. Eastin states that he took possession
In nw. It is also tesUlied by William Boone
that South had sold before he got the bond from
George Boone; and the evidence of Mrs. Smeit-
zer is strongly corroborated by Benjamin Mills,
Esq., to whom some of the Smitha and Soielt-
zers made a profesaionat application relative to
the chain of title between South and Hoy, He
found no authority to George Boone to assign
the bond to South, which was the only claim
or color of claim he had to the land; hence,
and from his knowledge of South's character,
he concluded he had sold without claim, and
brought no suit for them, Joseph Steele testi-
fies to the declaration of George Boone that
South was In treaty with him for the bond for
some time before the assignment was niade,
and that Smeitzer was informed previous to his
purchase that the land belonged to Thontaa
Boone. No objection having beeo made on the
hearing to the deposition of Steele In relation
to the declaration of Boone, they are etmipetent
evidence; and, in connection with thnt of the
other witnesses, fully support the teatimony of
Mrs. Smeitzer and the amended answer of
Smith. We must, therefore, consider Smeltier
as having purchased from South his right un-
der the bond of Searcy, and the several assign-
ments down to South, with notice thereof.
Smith's amended answer is conclusive that he
BO purchased the two hundred acres in 1797,
by the assignment of South's bond. In his de-
position he also states that he soon afterwards
purchased from South sixty or seventy acres, in
addition, of which he took posseaaion, and has
"ever since held, under the same claim; [•231
that he lent South three hundred dollars which
was to go In part payment of the land, hut
finding South had no title ht recovered it bad£
br suit.
Kl
Sinvsm Comtt or the Unitbd StAiu.
ISM
tn 1917 the partiei stood thni: Simltxer had
been in posBsssion, under a claim of title by
Scarry's bond and ansi^ments for tvrenty-Hix
years, of four hundred acre*. Smith had held
possvBsion of th<> two hundred acres nineteen
years, which, added to the possenaion of Pope
mod Swope from 1794, made twenty-three, and
of the sixty or seventy acres for about eighteen
years, when they gave up South's bonds, and
agreed to purchase from Chiles, who claimed
the legal title of Hoy. During this time,
Thomas Boone had neither affirmed or disaf-
firmed the sale by South, made no entry on the
land, gave any notice to Smith or Smettser, in-
Btituled no suit, or made any effort to ohtain
the ]f^B] title from TToy's heirs; thou^^h bis
right was then the same aa now made out, and
had been vested in him for thirty-six years. He
made George Boone bia agent in 1787; yet for
thirty years he appears to have been wholly in-
active In ai^erting or endeavoring to complete
the title. The agreement with Uezekiah Boone
In 1602 seems to have been the only positive
ESsertion of a right in the land made by Thomas
Boone. When tne present suit was commenccil,
Smeltzpr, and those under him, had been in
possrasion thirty-two years; Smith twenty-five
years of the two hundred acres, and twenty-one
of the sixty or seventy acres; and the equity of
Boone rose forty-two years before.
From this state of facts, it is perfectly clear
that if Smith and Smeltzer can be considered aa
claimants in their own right, adverse to the
title of Thomas Boone, the lapse of time alone
la a complete bar to any equitable relief; the
rules of equity as to the edt-et of time in favor
of possession are too well sctLlcd to be slated or
doubted. 2 Jac. k Walker, 13S, etc.; S Wh.
497; 10 Wh. 168; 3 Pet. 52; 6 Pet. 00; 6
Pet. 461; 7 J. C. 122; 10 Wh. ISO, 74; S
Pet. 4 IS.
Thomas Boone's only standing in a court of
equity is by ..onsidpring tliese defendants as his
trustees, by their purchase under South or
Chiles, or both. Aa neither of them sold by
any lawful authority from him, he ia not IwiiuJ
232*] by, and may repudiate 'their acta; the
consequence ol which would be a bar of his
claim on these defendants holding adversely.
But as South assumed the right to sell the in-
terest of Thomas Boone in virtue of the aasign-
ment from George Boone as his attorney in
fact, and uhiles acted throughout all his pro-
ceedings under the agreement signed by Gejrgc
Boone in the same capacity, which was an ex-
press recognition of the original right of Thom-
as Boone, be may waive the defect in the power
of attorney, ratify the acta of his agent, and
elect to consider the purchasers from South and
Chiles as holding through and under him.
When the purchasers from them discovered
that neither South or Chilea had any ri^fat in
the land, they, too, had a right of election to
hold under the title which they intended to
purchase, under which they had taken posses-
sion of the land, and held it till the discovery
of tlie fraud; or to disclaim the purchase, re-
nouuce all rights consequent upon it, and re-
■naiD in posspsiiion as claimant* adverse to the
title under which they entered.
It is unnecessary to decide on the efTeet of
•uch disclaimer, had it been made before the
nnrchaae Irom ChilM, or the tiling the bilL
»4
We eannot And In tbe erldenee or pleading!
that Thomas Boone ever made any election »t
to considering these defendants holding under
or adverse to him ; but it is very clear that they
criginalty purchased, entered, and held under
his title; ano it does not appear that they ever
asxiimed an attitude of direct hostility to it.
We have come to the conclusion that we must
now consider them as holding by their original
claima, so far as to autboriiie the plaintilTa to
make them their trustees, in virtue of their
purchase from South, and ratify the agreement
of Chilea. There is no other way in which
the plaintiff can eacape from the consequences
of the staleness of his equity, coupled with
the long possession of the riefendanta, than by
considering them aa friendly purchasers and
possessors under them. The ptaintifTs put
themselves out of court by setting up the pur-
chase and possession of defendants as adverse
to tiieir equity: for they then would have no
protection aganist the lapse of time, wtiich
they have neither explained or accounted for
(17 V. 88, 89. 90; 1 J. tW, 82, 63, and note;
1 J. C. 47, 48; 3 J. C. 586; I J. C. 3M;
*6 J. C. 187, 188: 3 J. C. 218), and all [•22S
bills in equity which seek to disturb long pos-
scissions deserve the utmost discouragement. 1
Atk. 467, 1 J. & W. 82.
The plainlilfs must, therefore, mnke Ibelr
claim on the defendanta, aa their trustees, by
direct contract, or by implication from the pur-
chase under their title; in either case, the lapse
of time efTecti tbem. They cannot enforce
the exeeutiun of an eipreaa voluntary trust,
after its known disavowal for such time aad
under such circumstances as would make an
adverse poanessinn a bar. 3 Pet. S2, 7 .1. C.
128, 2 Sch. A. Let. 607, 638, 638. ff a purchaa.
er is made by implication an involuntary trus-
tee for the vendor, so as to be alTecied by his
equity, it must be pursued in a reasonable time.
4 J. C. 310; 3 J. C. 21(1. 217; 4 B. C. 136, 138j
1 Cox. 28, 17; V. 90, 100.
Though lime does not bar a direct trust
as between trustee and cestui que trust till it
is disavowed, j'et, where a eiinUructive trust is
made out in equity, time protects the trustee,
though his conduct was originally fraudulept,
and his purchase would have been repudiated
for fraud. 4 B. C. 136; IT V. 07; 1 B. C. 551.
here a party takes
right,
turned into a truste
merely. 3 J. C. 216,
ing to purchase the entire
took a conveyance without
And <,
lie owner, and is
I tier of evidence
'here one intend-
ereat in the land
irils of lirnitatioa
jtate fnr life, the
lapse of four'ti-en years after the expiration of
the life estate waa a protection to the heirs of
the piircliaaer. 6 J. C. 185, 180.
What that reasonable time is within which ■
conatructive trust can be enforced, depend! on
the oircumalancea of the case; but Iliera csn
be few cases where it can be done after twenty
years' peaceable possession by the person wbo
claims in his own right, but whose acta havB
made him a trustee by implication. Uia po*-
session entitles him to at least the same pr«>-
teotion aa that of a direct trustee, who, to tba
plaintilTa knowledge, disavows the trust and
holds adversely; as to whom the time tuna
from the disavowal (3 IVt. 62), because hi* poa-
l>et«rs to.
UM
BoONt R AL. V. CBIUB I
tMilDii is th«ncefortIi Adrene. Tbc poiiseBaion
of Itnd it notice of a eUim to it bj the po«-
Muor [Sugden Vend. 753. T54I ; if not Uken
«4*] and held by contract 'or purchase.
Fmn it* inception adTerse to all ttie world,
in twent; yesra bars the owner in law and
equity. 8 Cr. 250; 4 Wh. 221; S Pet. 354.
A purchaBer in possesaion by a contract to iell
ii in law a trespaMer; but in equity he ia the
ontT of the eatate; having taken posacssion
onder the contract, and the vendor ia in the sit-
Httion of an equitable mortgagor. 16 V. 138.
If the entry waa by purchase, and tbe pur-
chuer ciaima the land in fee. he ia not a
trustee; his title, though derivative from and
wosistent vith tbe original title o( the plaiit'
tt?B, is a preaent claim in eicluxion of, and ad-
Terse to it. A vendee in fee derives his title
from the vendor; but his title, though deriva-
tive, is adverse to that of the vendor; he enters
«Tid holds For himself. Such wat the doctrine
ot this court la Blight's lessee v. Rochester,
4 Pet. SOS, 5DT. In that case the court eaid^
Tbe vendee acquires the property for himself.
snd his faith is not pledged to maintain the
title of the vendor."
The only controversy which ought to ariee
respeeti the payment of the purchase money,
kow far tbe vendee is bound to tills, by law, or
by tbe obligations of ^od faith, ie a Question
depending on alt the circumstancee of the case.
It the vendor has actually made a convey-
aice, his title it extinguished in law as well as
tfnity; if he has sold, but baa not conveyed.
his contract of sale binds him to convey, un-
Ina it b« conditional : if, after such a contract,
be brings an ejectment, he violates hia own
contract unless the condition be broken by the
vendee, and if it be, the vendor ought to show
it." "If defendant ciaima under a sale from
plaintiff, and plaintiff himself is compelled to
inert that he does, then the plaintiffs tbem-
Nlvet assert a litte againat tbis contract. Un-
less tbey show that it wae conditional, and
taat the condition is broken, they cannot, in
the very act of disregarding it themselves, in-
sist tba't it binds the defendant in good faith to
acknowledge a title which had no real existence
Upon reason, then, we should think that Ihp
defendant in this case, under all t!ie circum-
stances, is at liberty to controvert the title of
the plaintifT." T Wh. 648, SSO.
In applying these principles to the case be-
fore us, it it very clear that neither the pur-
SIS*] chase from South or Chiles is any 'equit-
able estoppel to the defendant's controverting
the title of Boone, when he diaalTirmB and vio-
lates the contract of purchase by aeeking to
torn them out of possession. He cannot make
them constructive trustees by their purchase,
and then be permitted to disavow the purchase,
without subjecting himself to tbe conaequencea
•f delaying the prosecution of his right. Aa
trast«es by implication, in equity, they may
claim the benefit of the lapse of time; it he
oonaiders them aa purchasers from him, or by
a title derived from him, he can have no hold
Bpon their eonacience, to surrender him the
possession, if they are willing to pay the pur-
chase money. Whether they purchased from
'' -T from another who auumed to sell by his
by bis aflimianee ot the tale, the law of equity
compels him to assert hia rights in a reasonable
time. When be does so, the execution of ttie
trust will be enforced; but it will be enforced
on both parties according to the terms of ttie
purchase, and the trust which equity raises on
it by implication. Equity makes the vendor
without deed, a trustee to the vendee, for the
conveyance of the title; tbe vendee is a trustee
for the payment of the purchase money, and
the performance of the terms of the purchase.
But a vendee is in no sense the trustee of the
vendor as to the possession of the property sold ;
the vendee claims and holds it in his own right,
for his own benefit, subject to no right of the
vendor, save the terms which tbe contract im-
poses; hia posaeaaion ia. therefore, as adverse to
the property, but friendly as to the perform-
anee of the conditions of purchase.
In virtue of his legal title, the vendor has a
legal right of possession, but equity will not
permit liim to assert it unless the vendee has
violated the contract; be will be enjoined il
the vendee performs it. It is very certain tliat
a sale of the legal title by deed creates no legal
estoppel by which a purchaser is prevented
from contesting the title of the vendor, or the
title of any person from whom the vendor de-
rived title. 7 Wh. 547, etc. It is eoually cer-
tain that the sale of an equitable title by bond
or other contract cannot have a contrary effect
in equity, which 'decides according to [*226
the equum et bonum of each case. In this case
Boone cornea Into court to obtain possession
under an equitable title only; he is barred bj
time, unless he can make the defendants his
trustees at the institution ot the suit; he
charges them with no frnuEl. and notbing ir
averred or proved against them to so affect
their conscience as to give a court of equity
jurisdiction He is thus compelled to rest on
their purchase of his title from South and
Chiles, making them constructive trustees;
wbicb. on tbe pleadings and evidence, we are
of opinion he may do. There is, then, a truat
between them, but it is tliat trust which, in
equity, results from the contract ot purchase.
Boone is a trustee for such title as tbe defend-
.inla purchased, and "ere entitled to reeeivei
tbcy are trustees tor the purchase money they
agreed to pay tor it. Boone avers they bought
his title, H'liicb. we think, is made out. He.
then. Is the cestui oue trust as to tbe money
and they for his title.
To devest this trust of all mutuality would
be subversive ot every rule ot equity; it will
never award a surrender of tbe possession of
land by a purcbasei of an eiguitable title but on
a clear violation of Che condition of purchase,
clearly proved by the plaintiff. He is without
remedy at law in this case; compelled to come
into equity, lie must do it : he sets up a trust in
the defendants For his uae: all he cnn ask is its
execution by payment of the purchase money;
if be has a decree for that, justice ia done to
him, and oothinfr can be more just than to de-
cree that he shall perform the act in considera-
tion of which he obtaina relief. If he comes
into court to turn them out on the ground that
defendants have purchased a title which must
be traced up to him, in virtue of the contract of
purchase, he asserts a title against tbis contimol
whan he denies them the benefit ot the purchaaa)
4M
Supmra Comr or tbs tlmm SUTia.
UM
■nd In the language of tbii court in Blight's
Leiisee v. Rochester, the plaintiffa cannot, in the
very act of diaref^riJIng it themeelTe*. inaiBt
lliat It binds the defendants, in good faith, to
acknon* ledge the title. The defendantg maj
contest it. when set up to defeat the purchase
in this case in equity, as it was done in that
at law. This court did not, then, think their
t2T*] decision to be *at variance with the
deciiions of the courts of Kentucic;, nor do we
thinlc that we now, in any way, interfera with
They have held that the possession of the
purchatei From the plaintilT without deed is
iriti.diy to the plaiatilf. and stops the running
of the statute of limitations. 2 Bibb. 606.
But that a vendee by deed may, at law, con-
test the titie of the person under whom he
i>oughl; though a vendee by eiecutory contract
cannot, if he is in poBsession under, and looks
to the vendor for the completion of his title;
in the flrst ease he holds adversely, in the sec-
ond not. 3 Littell, 135, 136. So, if he pur-
chases from the patentee, and hol-ls his bond
tor the title (6 Litt. 318), a defendant cannot,
in ejectment, set up an outstanding title in a
third person, if he purchased from plaintiff
without deed (6 Litt. 444) ; nor can a tenant
or one who purchases from him, contest the
Utle of the landlord. 4 Bibb. 33; i Marshall,
243.
These decisions are, unquestionably, correct;
but the principle on which they are founded is
very different from that which the plaintiffs'
counsel deduce from them; they admit tlmt
possession, under a deed conveying a legal
title, is adverse, and that a defendant so hold-
ing may deny the title of his vendor in a suit
at law. The contract of purchase, then, is
not estopped, though by the most solemn
} the li
The s:
e print
pie seems closely applicable, by analogy,
suit in e<iuity, in which the plainti^ rests
on an equitable title only, which has been sold
to the defendant, as the fnundation of a de-
cree awarding possession of the land purchased;
the proceeding is analogous to an ejectment;
the process of executing such a decree is the
same in Kentucky, by an habere facias, it
is difficult to iierceive any sound reason why
the same analogy should not be observed in
the proceedings previous to the decree; if the
defendant, a vendee of the legal title by deed,
can. at law, contest the title of his vendor,
who is plaintilT. why may not the .vendee of
an equitable title, by bond or other executory
contract, enjoy the same right in a court of
equity! We are clearly of opinion that the
defendants in this case had such right, and
that there Is nothing in the evidence before
us which couid have deprived them of it, had
they rested their ease upon their adverse pos-
t28*] session alone; hut 'the admissions of
Smith in his amended answer, the proofs of
the cause aa to Smeitzer, together with the
joint answer of themselves and Baylor, place
them in a different position.
As to them, we..are perfectly satisfied that
their possession was a perfect protection against
the equity of Thomas Boone when this suit
was instituted; but we think that his equitable
rl^t to the purchase money agreed to M paid
to Cfalles has been saved b; their answer and
tk* eridene* fn the sue; our only dittcultr
40<
has baen whether we can, on the pleadtnga,
make such a decree as, in our opinion, com-
ports with the justice and eouity of the caae.
The specific prayers of the bill are that such of
the defendants aa bold the title, convey to the
plaintiS the tract described by the deed under
the decree to Chilea; neither Smiths, Smeltzer,
or Baylor hold this title, or claim under tha
decree or deed from the commissioner to Chilea;
this part of the prayer cannot, therefore, be
granted. The next i* an account for rents
and profit! ; this can be done as to Chilea, but
cannot as to the others, on our views of the
ease. The general prayer is, such other and
further relief aa the plaintiffs' ease may re-
quire. This is a brosd prayer, on which such
relief may be granted as is not inconsistent
with the bill or the specific prayers. 8 Pet.
636. This case is one of an undoubted equit-
able title to the seven hundred acres of land.
had it been pursued fn time; but under the
. circumstances of the ease it is narrowed down
to a claim for the purchase money of the land,
held by the defendants under the purchjtaea
from South and Chiles, at the price stipulated
in their agreement with the latter. liiis, we
think, is required by the case of the plaintiffs,
as it appears on the whole record, without
placing the defendnnts in any position more
injurious to themselves than their answer would
authorise. They pray for a restoration of
South's bonds and the rescission of the ecm-
tract made with Chiles, as the means of en-
abling them to obtain a decree in their favor
"But should, under all the circumstances of
the case, it be their misfortune to lose the land,
they claim a just compensation for their last-
ing and valuable improvements; under such
rules and regulations, according to law and
equity, as their case may require and justice
demand." To restore South's bonds and annul
the 'contract with Chiles would not re- [•>»•
lease them from their trust to Boone for the
purchase money agreed to be paid to South.
The record does not inform us what was the
price at which South sold the aix hundred
acres; but if sold at tha rate at which Smith
bought the sixty or seventy acres, it would.
with the interest, exceed the price agreed to be
paid to Chiles. Besides, the restoration of
South's bond at the time ol their answer, and
by a decree of the Circuit Court, would have
bound them to pay the purchase money with
interest. In such case the lapse of time would
be no bar. If, by our decree, these defendants
hold the lands on the terms stipulated witb
Chiles, they have the same benefit of their
contract with him ai if it had been oonsuai-
mated by a conveyance of the legal title of Hoy
and the equitable title of Thomaa Boone; k
position much more favorable to tbem than
they would be placed in by their prayer for
the restoration of South's bonds, or for mer*
compensation for improvements. It is not to
be doubted that they would have been content
with the quieting of their possession on pay-
ing for the land, on the terms agreed on witb
Chiles in 1817, on which they can now bold
then, consistently with the law of the case.
Though neither of the parties have prayed
for the specific relief whicn we think they U«
entitled to, we are of opinion that all have,
in substance, submitted their case to our eott-
■fderation aceordlAg to the rules and prlncipl«a
I8M
BooxK CT AL. r. Chiles rr al.
of equity; irllltng to iibide such decree u we
shall think will do iuslice between them. TIiIr.
in oiir opiniOD. will be done by pivinp to botli
the benellti of the contract with Chili^a. which,
under ftti the drcumttanees of tiie eaae, cre-
ated by construction and implication in eignity
a mutual trust, which is expcuted by one party
convey in;; his title, and the other by paying
the purchase money.
It remains only to consider the case of Cum-
min*, who piircfiRsed from Smelticr part of
the four hundred acres purchased by hint
from South. We can perceive no equitable
Cround of discrimination between this snil the
other tenants; the answer of the heir of Cum-
mins admits the purchase from Bmelt/er, but
makes the same allegation of fraud against
him ua he did against Chiles. Yet, like the
olhers. Cummins continued to hold, and his
heir still holds the land so purchased, without.
SSfl*] as appears by the Record, "having paid
anything for it: like them, too, the heir prays
for a dismission of the bill, but in these words:
"And hence to l;p dismissed with her costs, etc..
and such otber ordere ns the court shall deem
necessary to the equity of her rase." This
could not have been intended, nor can it be
consittered as a peremptory prayer for dis-
mi'ision. as she would, in such case, hold the
land without paying for it; there would be no
remaining equity in her case, on which the
court could make an order; it must, therefore,
be considered as a submission to such decree
as the court shall deem conformable to the
equity of the case. This, in our opinion, re-
quires that this defendant should be placed in
■' n as the other defendants who
riain
they alt purchased only an ei|uitable title, c
must stand in the place of the those from whom
they pui-cbased : each is a trustee by implica-
tion, affected by tbe same mutual trust in
Having thus disposed of all the contending
etaims between the plaintifTs and the defend-
ants in this very complicated case, according to
their respective equities between them as con-
tending parties, we are to consider of the
decree to be made between the defendants. It
is within the undoubted powers of n court of
equity to decree between codefendants on evi-
dence between plaintiffs and defendants. 2
bch. 1 Lef. 712. Its exercise is also within
the general prayer of the defendants in their
Tespeetire answers, and ia called for by every
consideration that requires some termination to
long, inveterate and entangled litigation. With
the whole ease before us, and on the fullest
hiveatigation of the rights of all the parties,
we do order, adjudge and decree therein as
follows;
That BO much of the decree of the Circuit
Court as directs the defendant Chiles to con-
vey to the complainants all hia right, titl«,
■nd intcreat to and In the premises named in
the bill, and to deliver up to the clerk of said
eourt. to be cancelled, the contract between
said Chilea, Heiekiah and George Boone, there-
in referred to; also, so much thereof as or-
ders Jonrs and Fanny Hoy to convey all their
interest in the premises derived from William
Hot; and SO much of said decree as directs
^31*] that if the conveyancea *»o directed
•hall not b« oiada H ordered, the clerk of aaid
Circuit Court shall convey to the complainants
the interest of the said parties, as by said eourt
decreeil ; and so much of said decree as orders
the defendant Chiles to pay the costs of the
suit, with the exception there stated : also, ao
m\ich of said decree as declares that the claim
of the complainants ia not to be prejudiced by
the decree nforesaid, as against any of the
heirs of William Hoy. who are not parties to
the suit; and so much of said decree aa di-
rects the bill of complainants to be dismissed
as to the land held by John Evalt within the
bounds of Floumoy's patent, be and the aame
is hereby alTtrmed in all things, excepting that
part of said decree which excepts from the deed
to be e;ieciited by William Chiles, the interest
which he holds under a deed from Green Clay
as to which Ihe said decree is reversed and
annulled.
And as to the rest and residue oi said decree
of the Circuit Court, the same is hereby re-
versed and annulled; and this court, proceed-
ing to render such decree as the said Circuit
Court ought to have rendered, doth further or-
der, adjudge and decree —
Thai the said William do and shall, within
si:( months from this time, convey to the com
plainants (in the manner specified in said de-
eree as to the land therein directed to be eon
veyed by him) all his right, title and interest.
held or claimed under the deed or conveyance
from Green Cluy to said Chiles.
That the aaid Chiles do. and shall, within
the snme time, assign, transfer, and make over
any contract or agreement made between him
and any other persons, in relation to the land
in controversy in this suit, whereby any right
accrued to. or was promised or agreed to be in
him, to any luirt of said land, or any money
arising or to arise from any sale or sales there-
of: and in like manner to transfer, assign, and
make over all such rights to said complainants.
Thnt the said William Chiles do also account
to und with the complainants lor any money
he may at any time have received from any
p>erson or persons, on or by virtue of the sale of
any part or parts thereoF; also that be account
to and with the complainants for any rents or
proHts which he may have enjoyed or received
*in or from said land embraced in the [*3Sa
patent to Hoy, under the direction of said
That a surveyor, to be appointed by aaid
court, do, under their directions, ascertain the
Suantity of land claimed by the several de-
endants in this suit (except William Chile!)
on the western side of the survey in Searcy's
right designated on the plat of the surveyor,
dated 2d October, 18:)1. by the letters A. D. T.
U, J. K. M, K, and A; excluding therefrom all
the lands within the lines of Flourooy'g patent
and return a plat thereof to said court.
That the hilt of the complainanta he dis-
missed, as to all the land claimed by any de-
fendant east of the lines on said plat, desig-
nated by Icttera E, M. K, J. U. T ; that their bill
be dismissed as to all the land purchased by
Nicholas Smith from Jones, lying within the
line of Flournnys pntent, marked on the sur-
veyor's plat, in page r>S of the printed record,
by the letters L. M, N, O.
That possession be awarded to the eomplaln-
anta by the several defendants of tlie land
claimed or held by ttien, respectively, within
ScFinut CoDiT OF THE Unitd S
US8
th» liBM flrat herein rererred to, u nmrked in
t)i« put, dated 2d October, 1S3I, aod without
nonmoy'i lini. whieli haa not b«en purchased
tron or held under South or Cliireo, or by any
person or person! claiming or holding under
them, or either of them, in virtue of any con-
trset or agreement with them or either, by or
under whoie right, claim, or possession any of
uid defendants claim or hold any part or
parts of said Isnd.
Tliat (lie surveyor, so to be appointed, do and
shall ascertain the qunntity of land now
claimed or held by any of the defendants, medi-
ately or immediately, by, from, through, or
under South or Chiles, or in virtue of any
right asserted or claimed by them, or either, as
class of claimants, under any one person, ae-
eordingty as they may hold or claim in several-
ty, or in common between themaelves: and re-
turn separate plats thereof to said Circuit
Court. Whereupon, such of the complainants
as are under no le^l disability, shall, within
such time aa the said court shall direct, make.
S33*] execute, and in due 'form of law
acknowledge and deliver to the said defendants
respectively, deeds o( general warranty in fee.
for the land described in such plats, on said
defendants complying with this decree, as here-
inafter mentioned ; snd that such of the com-
Iilainants as may at such time be under any
egal disability to maiie such deeds, shall, with-
in six months from the removal of such dis-
ability, malce, execute, acknowledge, and de-
liver such deeds to tlie defendants, their heirs,
and assigns 1 or that the said Circuit Court,
as ao authorized by law, may order and direct
that such deed or deeds shall be made by such
commissioner a* tbey may appoint to execute
the aame for and on behalf of the complainants
last mentioned.
That the said defendants severally, or each
class thereof as aforesaid for themselves joint-
ly, as they may claim or hold, do pay to the
complainants tor the land conveyed by them, at
the rate and on the terme stated in the joint an-
swer of the defendants, to wit, ten dollars for
each and every of the four hundred acres pur-
chased by Peter Smeltzer, and the two hundred
acres purchased by Nicholas Smith from John
South; to be paid in three equal annual in-
stallments, counting from the agreement with
Chile*, assumed to be 1st December. 181T.
That the heirs of Nicholas Smith, or the de-
Tendants who claim or hold under him or his
lieirs, do pay to the complainants at the same
rate and on the same terms, for the sixty
or teventy acres afterwards purchased by said
Snith from South; nhich said complainants
shall convey as aforesaid to the defendant or
defendants in possession thereof under Nich-
r/ias Smith.
That the amount M to be paid by each de-
fendant, or class of defendants, bear interest
from the time the installments were payable
respectively, till the time directed I7 the Cir-
cuit Court, at which the complainants are to
make the deeds as aforesaid : each defendant or
class to be liable only for the sum due by
themselves, and not for any sum due by other
defendants.
That, when the said deeds shall be executed
dellnn^ Uk attm diw hf Meb dafand.
ant or class, principal and Interest, shall ba
paid as follows: one third whereof to be paid
in one year from the delivery of the deed, one
third in two years, and *one third in [*tS4
three years, with interest from the time they
That the several sums so payable to be paid
into said court, or to such person or persona as
said court by their decree shall order and di-
rect; and on such terma and conditions aa ta
them shall seem just and equitable.
That the defendants severally and respec-
tively do, under the direction of said court, ac-
count to and with each other for any moneys
received by one from the other, or any person
or persons under whom they claim or have
claimed, tor or on account of any purchase
money of any part or parts of the land, now or
at any time held or claimed by them or any of
them, under or in virtue of any purchase under
the title of Searcy.
That such of the heirs of \miiam Hoy as
have answered the bill of complainants do con-
vey to them, in the manner directed in the de-
cree of the Circuit Court as to Jones and Fan-
ny Hoy. all their right, title, and interest in the
land contained within the line of the plat first
herein referred to, being the western part of
the survey aforesaid, in right of Searcy. In
default of making such conveyances as is here-
in directed to be made by any of the defendants
in this case, then this court doth further order
and direct that ■ conveyance of the right and
title, interest and claim, in and to the land in
controversy, held or claimed by such defend-
ants, he ronveyed to the complainants, by a
commissioner, to be by the said Circuit Court
appointed to make such conveyance according
That the bill ol complainants be dismissed,
as to I he heirs of George Boone, Hei^iab
Boone, and the heirs of South, with coats.
Anil il is further ordered, adjudged and de-
creed, that all the equity of the complainant*,
as to any person or persons not parties to thia
suit, or as to any matter or thing not herein
decreed on. shall be and is hereby reserveo to
the sail) eomplainsnts. anything contained in
this decree notwithstanding: and that thia
cause lie remanded to the Circuit Court for
the District ol Kentucky; with instructions to
proceed therein according to this decree, and
as to justice and equity shall appertain.
■Mr. .lustice HcLeaa. Under the pe-|*ai&
culiar circumstances of this case 1 am con-
strained to state, aa succinctly aa I can, tfaa
reason why 1 dissent from the opinion just
delivered.
The facts out of which this controversy ansa
are as follows: Reuben Searcy being entitled
to a settlement and pre-emption of fourteen
hundred acres of land in the settlement of
the title. On the 24th September. 1781, (or *.
valuable consideration, Searcy sold seven hun-
dred acres of this land to William Hoy; exe-
cuted his bond for a title; and, at the sama
time, assigned to Hoy the plat and cerUBcat«
of survey, which enabled him, in ITSO, to ol>-
tain a patent for the whole tract in his oirn
But b
m,ti<m Of tb* patent, tn
ina
Boom IT t
thi nonth ol December, ITBl, Willinin Hoy m-
■igned Burcy'* bond to George Boone, »nd
hiuiid himself, hii hcin, etc., fta sureties, et«.
And on the 30Ui April, 17B3, George Boone u-
signed the bond to Thomma Boone, whose heirs
prosecute this suit.
Thomas Boone, bein^ ft citizen ot Pennsyl-
TSDia, gnve a power ot attorney to George
Boone, of Kentucky, dated 1st October. ITB7,
wliieb aothorized bim, in the name ol Thomas
Boone, and for his use, ''to ask, demand, sue
for, and recover of and from Major William
Hoy, of Kentucky settlement, a deed or other
Iswtu) conveyance valid in law, for seven hun-
dred acres of land in or near the waters of
Binkson and Stoner, etc. ; ftnd the attorney
vas authorized to appoint, etc., and to do every-
thing necessary in the premises." etc.
On the 6th August, 1702, Grorge Boone, u
the attorney in fact of Thomas Buone, assigned
Searcy's bond to John South, the executor of
William Hoy, who bound bimaelf to cause Hoy's
heirs to convey, ao soon as tfaey should become
of age, the seven hundred acres to Boone, flt«.
But on the 3d December. 1701. »e{pre this as-
■ignroent. South sold four hundred acres ot the
land to Peter Smeltrer, and bound himsElF with
Walter Carr and ilohn Glover, in tlie penalty of
s thousand pounds, to make a deed For the
nme »o soon as the heirs of William Hoy,
irho was then deceased, should become of age.
»<'] And on the 2eth 'August, 1794. South
sold two hundred acres of the same tract to
(ieorife I'ope. and bound himself in the penalty
last bond, in the spring of ITBS.
ebaaed by and MS^ed to Nicholas Smith, who
shortly afterwards purchased from South the
miduB of the tract, suppooed to oontain sixty
or sevelt^ acres.
On the 30th November. 1B02. Thomas Boone
■wde an agreement with his uncle, Hezekiah
Boone, ot the SUU of Ti^nnessee. to sell to him
the whole of this tract of land, for seven hun-
dred pounds. But Hezekiah Boone and his
heirs had tbe option of taking the land or not,
within (our years from the time of the con-
tract; and the contract was to be binding if
he should make known his detennination to
take the land and pay for it within the four
years.' But there is no evidence that Hezekiah
Boone made known fais determination within
tbe time limited to take the land; or that he
hu, at any time, paid the wliole or uiy part
of the consideration.
On the 30th October, 1S17, Hezekiah Boone,
and George Boone, as attorney for Thomas,
entered into an agreement with Willism Chiles.
and delivered to bim the papers they held re-
specting the above land; and Chiles was to
have the ttte use of them for the purpose of
eooreing the title to the land, if it could be
recovored ; and if not, he was to obtain the
value. And Chilea was to use diligence in
Teeovering the money or obtaining the title.
ud the proeeeda of the suit, whether land or
money, were to be divided between Chiles and
Heztiiah Boone.
Shortly after this contract waa entered into.
Chile*, having obtained from George Boone
the hcmd given him by South, which bound him
to eoBvey tbe land to Thomas Boone so soon as
807*1 Mr* could be compelled to make a deed.
V. CHILU XT At. m
called on Petar Smeltier^ heirs, who held the
bond of South, Carr, and Glover, and represent*
ing to them that he waa the rightful owner of
the land, obtained the bond ; and, also, he ob-
tained the bond for tbe two hundred acres given
by South to Pope, and by him assigned to
Smith; which bonds he delivered to Benjamin
South, the executor of John South, who was
deceased; together 'with tbe bond given [*2ST
to George Boone by the deceased, and obtained
from the executor possession of Searcy's bond
and the aMlgnmenta. The assignments of
George Boone, as the attorney of Thomas, was
then erased : and tbe contract between South
and the tenants was cancelled. And the pur-
chaser* under South, purchased the land from
Chiles, and bound themselves to pay for it ten
dollars per acre.
At the August Term of the Bourbon Circuit
Court, in the year eighteen hundred and eigh-
teen, Chilea brought an action of ejectment in
the name of Hoy's heirs, to recover posaession
of tbe land. The tenants having been served
with notice, appeared and defended the suit;
but a verdict was found against them, and a
judgment was entered on the verdict.
On tbe 26th January. IBIS. Chiles filed a bill
in the Bourbon Circuit Court in the name of
himself. Hezekiah Boone. George Boone, and
Thomas Boone, against the heirs of Hoy for a
title. In this bill Chiles stated that William
Hoy and John Sappington. and Parthenia ti\>
wife, late Parthenia Hoy, had ronveyed their
interest to him. And he sets up the contract
with Hezekiah Boone as the ground tor a decree
in his favor, under Searcy's bond, and the as-
signments made thereon. The assignment by
George Boone to South is represented a^ in
operative and void, as George Boone had no
power, as the attorney of 'Thomas Boone, to
sell or transfer the title to the land. The heirs
of Hoy and others, who were romle defendanta.
answered the bill. And afterwards, at August
Term. 1821. the court decreed that the com-
plainant, William Chiles, was entitled to a
specific execution ol the contract from Hoy's
heirs ; and that, if the defendants did not exe-
cute a convej-anee in pursuance of the decree
on or before a time specified, then, that Thomas
P. Smith, as commissioner, under the statote of
Kentucky, should execute it. And afterwards,
on the Tth January, 1822. the heirs of Hoy
not having executed a conveyance for the land
in pursuance of the decree, the deed was exe-
cuted in due form by the commissioner.
In April. 1827, this decree of the Bourbon
Circuit Court was brought before the Court of
Appeals of Kentucky and reversed *for ['238
want of proper parties and the cause was re-
manded to the Circuit Court for further pro-
The heirs ot Thomas Boone filed their bill
in the Circuit Court of the United States on
the 25th January, 1823. at first ajfainst Chiles.
Hezekiah Boone. George Boone, and the ten-
ants who occupied the land; and rcpresenteil
that the bill filed by Chiles, in the name of
Thomas Boone and others, ai^ainst the heirs of
Hoy. was a fraudulent procpcilini;; and b'-
Chilfs, under the decree, was supposed to b
invested with the Ipgal title, a decree for th ■
title was prayed against him. And after the
reversal of the decree of Bourbon Circuit Court, ^
t36
SuFBEHi CoDST or T
E UltlTEB STATM.
UH
•oeh of the heira of Boj aa were found wfthin
the jurituiiction of the court were made parties
The tenants answered an<l relied upon laps?
of time, their purchase undtT South, and the
fraud of Chiles, in their defense. Chiles nUo
filed hw answer, aeUing up hia title, and also
Fanny Hoy, and , Tones Hoy, the only heira of
Hoy iviio were mude parties to the bill, who ad-
mitted the right of complainants. The materi-
al parts of the anawent will be noticed, more
particularly, under the appropriate points
which arise for consiileration.
There aeems to be no question aa to th« gen-
uineness of Searcy'j bond and the assignments
made upon it. but it is insisted that Searcy
should have been made a party.
The bill asks no decree against Searcy By
the assi^ment of the plot and ccrtifleate. he
enabled \^'illiam Hoy to obtain the patent in
hia own name^ and this wai equivalent to a
conveyance of the land in discharge of the
bond. Ho^. therefore, could have no demand
upon Seari-y, ami of course the assignee of Hoy
could have none against him He was. there-
fore, not a necessary party. The complain
ants, under the assignment ot tloy, pray a de
vestitiire of the title from his heirs; ami as be
tneen these parties, there can be no dnubt ol
the equity of the complainants. Indi'ed. the
heirs of Hoy do not controvert the rigliin oi
the complainants.
In the argument, it was insisted tliiil the ncv-
en hundred acres claimed by tti° c<>r'i|>hiinaiit~
2S9*] are not so spccificaHy de'crilied in 'the
bill a« to enable the court to dccrpe, in pursii-
anee of the prayer, a specific conveyance.
William Hoy obtained in his own name n
patent for the fourteen hundred acres : and
it appears there is a surpkia of more than
Ave hundred acrea. The bond of Searcy to
Hoy was for seven hundred acres, and Hoy
was to take his first choice out of the whole
tract ; and it appears that there does not re-
main of the entire tract, undisposed of. or not
covered by paramount claims, more than will
satisfy the above bond. And in addition to this
consideration, the heirs of Hoy may be safely
decreed to convey an undivided interest in the
land, to the extent ot the complainants' rights;
and. if necessary, the complainants, under such
a decree, being tenants in common iiitli the
heirs ot Hoy. or those who hold an inti-rest in
(he land, could have partition made. There is
no want of certainty as to the identity of the
entire tract.
As to the claim of Chiles, except under the
deed of Kewland and wife, I admit that it can-
not be sustained. Hezekiah Boone, who sold
to Chiles, had no interest to transfer, Hi« con
tract with Thomas Boone was a conditional
one. and the conditions were not performed.
No part of the consideration was ever paid, nor
did Rezekiah Boone, signify his determination
to take the land within the four years limited;
and tailing to do this, the contract upon its
face wa» not to be binding.
The assent which George Boone, as attorney
in fact for Thomas Boone, gave to the contract
made between Chiles and Hezekiah Boone, was
an extraordinary procedure on his part. And
It is suHlcient to say that be had no power to
sell the land, much less to consent that Chiles
and Hezekiah Boons should divide bctwesa
them the land or the monqr. whichever shMU
be recovered. George Boone, as the attomef
of Thomas, had power to authoriiR Chiles to
act ai attorney or agent in endeavoring to le-
eover the land, but he had no power to dispose
As Chiles, by virtue of his contract with Hei-
ekiah Boone, obtained convevances of the in-
terest of William Hoy and Parthenia Sapping-
ton. wife of John Sappington, two of the hein
fit Hoy, "he must, under the cireum- [•840
itancea, be considered as holding the land in
trust for those who hare the better equity. la
no sense can Chiles be considered as a purchas-
er of this interest, without notice and for a
valuable consideration. But the interest of
Newland and wife, which was conveyed to
him through Green Clay, rests upon dilfersnt
principles. In my opinion. Chiles must hold
this interest as a purchaser from Clay, who
was a purchaser from Newland and wife,
without notice of the complainant's equity.
A maiority of the judges reject the right as-
serted under this deed, because the allegation
that Clay was a purchaser for a valuable con-
•uleration and without notice, is not made with
Che requisite proceedings in the pleadings to
admit proof of tlie fact; and also, because the
deel to Green Clay conveys to him no title.
.^nd. first, as to the allegations contained hi
(he plendings. In his ansiver to the complain-
nnt'n liill. Chiles states that "he admits a cer-
tain Green Clay bought and received the title
o( John Newl.ind and wife; and discovering
< this to he a fact, he oaused the said Green Clay
' to he made a party to the bill in the Bourbon
Circuit Court, charging him to be a tpiilty pur-
chuser. knowing ot the equity arisiiiH from the
bond of Hoy. But aald Clay put in his answer
denying notice; end this defendant not know'
ing evidence to prove notice, bought ol him hta
share and paid him therefor, and received hii
conveyance. This defendant refers to the an-
swer ot Clay in the Bourbon Circuit Court as
part of this answer, and this defendant insilti
that Clay was an innocent purchaser for a val-
uable consideration, without notice, till hia
purchase was conipipte."
The answer of Clay in the Bourbon Circuit
Court, and which is referred to by Chiles and
made a part ot his answer, is as follows: "This
respondent further saith, that it is not true,
that to increase the difTieulties of the comnUin-
ant ^Chiles) as charged in said bill. .Tohn Xew-
land and wife conveyed their interest to the
lands in controversy to this defendant, etc-:
but. on the contrary, this respondent avers that
the contract he made with John Newland and
Celia. hia wife, was a bona tidp contract, in
^ood faith for a valuable consideration paid
them, without notice, 'or even a knowl- [•841
edge that the complainant. Chiles, had, or any
of the other complainants, any claim on said
land: but, on the contrnry, this defendant has
been informed, and believes, verily, that the
claim of the complainant. Chiles, is founded in
fraud and imposition," etc.; and "aa to the
contraet between this respondent and John
Newtand and wife, it is committed to record
and will speak for itself; and this respondent
believes the complainant. Chiles, has misrepi*-
■ented the true meaninf; thereof.
Although tha averments In the bill, flled by
l>pt«ra l«.
Boom R AL. *. Chius it au
CUIm on ttila point, in the Bmirbon Circuit
Court, vtd tha knawer of XeHlBQd and wife, in
the prewnt esse, have no connection with tlie
uiiwer of Chiles under consideration; fet 1
will refer to them, ki th«y have been thought
to have Bome innuence in the case, tn his origi-
ul bill tiied against Claj and othera in the
Bourbon Circuit Court, Chiles allef^ES that, "to
increase the difficult;, the said Jolin Newland
•nd Cclia, his trife, have conveyed Llisir interest
in Mid tract, with others, to a certain Green
Clay, who your or«tors eluirge had full knowl-
edge of your orator's claitni and. as they are
Infonned and believe, executed a contract with
aaid Newland and wife when he received their
eonveyance. binding himsetl to malce good all
the rontraeta ot their ancestor; but yet the
aaid Green Clay refuses to convey to your ora-
tor. William Chiles."
.And Newland and wife answer to the bill
in thp present case "that Celia is the daughter
of Hoy, and that if ever they had an interest
1b the land niriitioned in the said bills, and
BOW in contest hi^rein, that they have long
•inee transferred their interest therein, by a
writing amuuiiting to a quitclaim, to Green
CUjr but they never conveyed the title, by
deed, to him or anyone else."
The answer of Newland and wife cannut be
read in evidence against Chiles, a codefendant.
If this answer, in every respect, were in ae-
eordance with the most technical forms, it
could not aid a defective averment in the an-
swer of Chiles; nor can its defects, in any re-
spect, have an unfavorable bearing on that an-
swer. It must rest upon its own language,
S4S*] equally unaffected *hy tha answer of
MewUnd and wife, and the original bill died
by Chiles in the Bourbon Circuit Court.
As it regards the sufGcienc; ot the answer of
Chiles to protect himself under the title of
Clay, who is alleged to be an innocent purchas-
er for a valuable consideration, and without
notice, it may be remarlted that no exceptions
were taken to the answer, but a general repli-
«tion wa« 11 led, or considered as Rled.
In the case of Harris v. Ingleden. 3 Peers
Williams, 96, H Is said that "notice and
fnud must also be denied generally, by way
of averment in the plea, otherwise the fact of
notice or of fraud will not be in isstie. That,
where a defendant, in his plea of a purchase
(or a valuable consideration, omits to deny no-
tice, if the plaintiff replies to it, all the defend-
ant has to do is to prove his purchase; and it
is not material if the plaintiff proves notice,
for it was the plaintiff's own fault that be did
■ot set down the plea to be argued, in which
east it would have been overruled."
But, independent of this consideration, what
win eonatitutc a good plea, by Cbilea, to pro-
tect this parehaM under Clayt
It must appear that the persons who made
llM eonveyance to Green Clay, irera seized of
the land; that they conveyed by deed to him,
and for a valuable consideration, which was
paid and the deed executed before notice of the
eanplaioant's equity. Mit. Pleadings, 275;
Hinde, 180; 3 P. Wms. 281; 1 Vera. 17S.
Are not these facta found subatanttally in the
answer of CbilesT It suffielantly appears that
Hewlaad and wife were selced; for they are
stated to b« the bdn ol Bm, im part, to whom
the land deaeended, or mma dcvlMd. And Chllaa
avers that "Clay was an innocent purchaser,
for a valuable consideration, without notice,
until his purchase was complete." His pur-
chase could not be complete in the aense hero
expressed, until the consi deration was paid and
the deed executed. If thU be the clear mean-
ing of the sllc^tion, it must be held suffldant.
But the averments in the answer of Green CUj
are made a part ot the aoawer of Chiles.
It must be admitted that this answer of Clay
is loosely drawn, and without much regard to
the forms of pleading. But, although Clay
'speaks of his oontract with Newland [*S41
and wife, it is clear that he refers to a deed ol
conveyance, a* he states it has been recorded;
And he avera that his purchase from
Newland and wife was bona Sdc tor a valuable
consideration, and without notice.
Now, when these allegations are incorporated
with those contained in the answer of Chilea.
and the fact that there was no exception to the
anawer are considered, 1 am inclined to think
that the allegations should be considered suffi-
cient to protect the title aaserted. The amount
of the consideration paid is not specifically
stated, but the averment is general that a valu-
able consideration was paid, and that before
It must be admitted that tha allegations in
the anawer of Chiles, in relation to this pur-
chase, are not made with technical precision,
and if exceptions had been taken to tbia part of
tile answer they might have been sustained.
But the eomplainauts liaving failed to except,
ought not now to insist, and, indeed, cannot, on
the same degree o{ strictness as to form, aa it
they liad done so. It this were admitted, the
defendant would be taken by surprise, and the
ends of jmtice might be defeated. To guard
against tliis, the forms of pleading require ex-
ceptions to be taken to matters set up in the
defendant's answer in bar of the plaintiff's
right. If asceptiona be waived, and an iaaue
taken on tha answer, the compiainanta cannot
object to the matter in bar on the ground of the
insufficiency ot the plea or answer. If Clay was
a purchaser without notice. Chilea may shelter
himself under a deed trom Clay. The estate
having l>een innocently and fairly acquired,
and for a valuable consideration, can be eon-
veyed to a person with notice. 1 Atk. 971;
2 Atk. 139, 242; 2 Eq. Cas. 689; 13 Ves. 120;
Prec. in Ch. 61. That a decree was loosely
entered against Clay in the Bourbon Court is
of no importance, as that decree has been an-
nulled. If the objection as to the sufficiency
ot the anawer of Chiles, under the circumstan-
ces, cannot now he insisted on by the com-
plainants, it becomes important to examine ths
deed form Newland and wife to Green Clay,
and to determine the effect of that conveyanca.
I will transcribe the operative worda of tha
deed: "This indenture, 'made this [*344
23d day of Uay, in the ynr 1614, between John
Newland and Celia, his wife, ot the County of
Madison, and State of Kentucky, of the oat
part; and Green Clay, of the same county and
titate aforesaid, of the other part, witneuethi
that the said John Newland and Celia, his wife,
for and in consideration of the sura ot one hun-
dred dollars, t9 then in band paid, the reoaipt
t44
Sdpbuu Codkt or thb Uhitd Staibb.
UM
wher«of, etc.; have granted, bargalnsd, and
•old; anil do, by these presents, grant, bargain,
■all, and eonvej to the «aid Green Clay, his
hein and asai^a forever, all the right, title.
olaim and interest which they, the said John
Nevland and Celia, his wife, have in and to
the real and personal estate of Willitun Hoy,
deeeased; and all debts, dues, and demands,
rents and praflts, either in law or equity, to
which they are or shall be entitled, as one of
the heirs and legatees of said William Hoy, de-
eeascd; she, the said Celia Newland, wife of
the said John Newland, late Celia Hoy. beinp
one of the children and legatees of the said
William Hoy, deceased." To tbia, covenants of
special warranty are added, and also of further
Can any doubt exist that this deed conveys
to Green Clay what it purported to convey to
him. all the right and title, etc., of the grant-
ors to the real estate of William Hoy, deceased.
Celia Newland, under the will of hT father,
received a certain interest in her father's real
estate, and tliis interest she conveyed by the
above deed.
It is true that Newland and wife, under the
will of William Hoy, conld receive nothing
more than the legal title, their ancestor having
in his lifetime sold and conveyed the equitable
title. But, having the legal estate, does any-
one doubt that they could convey, and did con-
vey to Green Clay, a clear title to the land, if
he was a bona fide purchaser, without notice,
and for a valuable consideration.
That Clay was a purchaser of this descrip-
tion is averred, and there are no facts in the
case which disprove the averment; and, in all
such cases, the proof of notice or fraud rests
with him at whose instance the title is im-
peached.
The deed of Newland and wife describes
with Bulticient certainty the interest conveyed.
345*] It was the interest which Celia 'New-
land received under the will ot her father.
This conveyance, containing all the operative
words necessary to convey an estate in fee.
and also describing with the requisite certainty
the interest conveyed, must be considered as
an operative and valid conveyance in the hands
of Clay; who. as before stated, was a pur-
chnser without notice, and for a valuable con-
sideration. 1 think, therefore, that Chiles.
without reference to his knowledge of the facts
or his conduct, should be considered as faold-
iDg this interest against the equity asserted by
the complainants.
The counsel for the complainants insisted
that, under the decree of the Bourbon Circuit
Court, Chiles was invested with the l^al estate
In the land ; and that the legal title, under the
deed of the commissioner, still remains in
him, notwithstanding the reversal of the decree
by the Court of Appeals.
The decree of reversal by the Court ot Ap-
peals does not require this deed to be cancelled,
nor, in my opinion, was it necessary to annul
it. The deed of the commissioner is inseparably
eonneeted nith the decree; indeed, it is a part
of the decree, and must have the same effect as
if the statute of the State had provided that a
(becree should operate as a conveyance.
In this respect the deed is different from a
deed executed by a sheriff on a sale on execu-
tion, or perhaps a sale under ■ decree in chan-
cery. A reveraal of the judgmoBt doea not In-
validate the sheriff's deed, but a reversal of the
decree must destroy the effect of the commis-
sioner's deed; as in no senas can ha be consid-
ered as the agent of the party, but as an offlect
of the court, and as acting strictly under its
authority. He does not, as a purchaser under
an execution, pay money on tae faith of the
sale. The title passes by this deed; but U the
decree, which is the authority of the commis-
sioner, be reversed, the deed must fall with iL
That this is the view taken of the commis-
sioner's deed in Kentucky, ia shown by the pro-
ceedings in all caaes of reversal. The decree of
Chiles was reversed, and the case was sent down
to the Bourbon Chancery Court, with instruc-
tions to amend the bill and to have further pro-
ceedings. And I presume the causs *is {*34S
still pending in that court, and Chiles is pray-
ing for a title for the lands embraced by the
commissioner's deed.
In the case of Watts et al. v. Waddle et al.
G Peters, 400, the court say, "the deed executed
hj the commissioner in this case must be con-
sidered as forming a part of the proceedings in
the Court of Chancery, and no greater effect
can be given to it than if the decree itself, by
statute, was made to operate as a oonveyance
in Kentucky as it does in Ohio."
The right set up by the present occupants of
the land against that n'hicb is asserted by the
complainants, is the neift point for considera-
tion, I shall examine this point with some
minuteness, as I cannot assent to the decision
made by my brother judges.
Smeltzer, it is proved, took possession of the
four hundred acres he purchased from South in
1701; and be, or those claiming under him,
have been in the possession ever since. And
it is proved that &i)ith took possession of his
purchase of tvo hundred acres in 1768, and
the additional purchase of fifty acres shortly
afterwards; and he, or those claiming under
him, have held possession to this time. The
first question that arises in this and all simi-
lar inquiries is, whether the possession of the
occupants was adverse to the title asserted by
the complainants.
If the title of the tenants was not adverae,
the statute of limitations cannot operate; nor
can we. by analogy, apply the principles of the
statute in the case.
The title set up by these defendants is under
South, who claimed under an assignment of
Searcy's bond by George Boone, as the attorn^
of Thomas'Boone. the ancestor of the complain-
ants. This assignment by George Boone waa
not authorized by the power of attorney under
which he acted. That power authorised Geo^Ee
Boone "to ask. demand, sue for, and recover,
of and from William Hoy, a deed or other law-
ful conveyance, valid in law," for the land; but
he bad no power to sell or convey the titJe-
This act was void as to Thomas Boone. In no
respect could it prejuilice his right; tor South,
taking the assignment, «as bound to look to
the authority under which it was made
In the ease of Hawkins, Witton et al. T.
Page's Heirs, 4 Bibb. *13S, the Court of [*X47
Appeals say, "the only plausible objection that
can be raised to these conclusions is that tb«
possession of twenty years and upwards would
give a legal estate to the possessor under the
equity, notwithstanding the legal title remained
Boone rr al. ? CutLKB R U.
la mother. This doctrine cannot be bibIii-
i«innl. So long M the holder of the equity
looked to the logal title-holder for the leKal
ntatf. he must be considereil as holding under
him: unO tlir length ot possession inures to
l\u Ijen-'Ht of the li^l estate, as ajt'''"^^ "''
nree cluiniants. but did not give the legal ea
rate to the eouitAble posspssor; ad between
these two, the legal title-holder and the equit-
able possessor, and by continuinr under these
eircunislancea, lapse of time could be no bar,
and roitid not transier the right of entrj to
the [lossrssor." And in tlic case of Q&j v.
MaTilt. 1 Bibb. 607. the court say, "where one
claims under or through the other, there shall
be no adverse pas!i.-ssion in such case sullicient
to give a title." And again, in the same case,
page 508. "if, therefore, we consider the ftp-
pellant as having no other title than that de-
rived from possosBion. and that his possession
h!i« lieen chan<;eil from an adverse, hostile, in-
to a friendly possession, it follows that the
statute of limitation doea not apply to his
ra-ie." And in 5 Littell, 318. it is laid down
that "a holding of land under a bond from the
patentee cannot be considered as adverse there-
to." Other decisions in Kentucky to the same
import might be cited, but it is unnecessary.
That thu rule established in Kentucky must
govern the question under consideration is ad-
mitted, although such rule be different from
the general law on the subject.
It is. then, well settled in Kentucky that a
purchaser who enters under a contract, looking
to the person in whom the fee ii vested for
the perfection of his title does not hold adverae-
ly to the legal title.
The le;^] title to the land in controversy was
in the keira of Hoy; of course the possession or
title of the tenants could not be adverse to
them. And is it not equally clear that, as the
tenants set up a title under an assignment of
inomaa Boone, and claim through him. their
title is not adverse to hisj and, consequently.
their possession is not adverse. Their title, as
US'] asserted, 'can be of no validity unless
the equity of ThomiLS Boone, from Hoy, shall
be established. They claim under nnd through
Thomaa Boone, and not in hostility lo him.
Their possession, therefore, so far as it rests
upon a claim of title, is in no sense hostile to
the legal interests of Hoy's hein. nor the equi-
table interests of the heirs of Thouias Boone.
Under sucb eircuni'.uinces, no length nf time
would enable the tenants, as against Hoy's
heirs, to set up tlie statute of limitation. So
luMj is this rule established in Kentucky,
that when Chiles prosecuted an action of eject-
ment in the name of Hoy's heirs in the Bour-
bon Circuit Court against the lenanta. they
did not rely on the statute.
I do not insist that the parties in this case
are so situated that lapse ot time can have
no effect upon their rights, but it is clear
that, on the part of the tenants, the statute
of limitations cannot be set up as a bar in an
action at law and, by consequence, it cannot
he spplied by analogy as a bar in equity. The
rule of the itatute. in chancery, is adopted on
the ground thnt equity follows the law ; and
where the law fails, uic role in equity must
■ISO fail.
A court of chancery it said to act on its own
rales in rcmrd to atala demands, and inde-
erty claimed has been held in good faith, '
out disturbance, and has greatly increased in
value. But in such a case, the court will give
due weight to all the circumstances connected
with the claim ot title or possession, and the
effect of the lapse of time may be obviated, by
a great variety ot facta and circumstances;
ivhich, however, would be unavailable to the
cnniplninants, where the statute would bar.
1 will now e^camiue the eijuity of the tenants
in regard to the lapse of time.
It will be observed tliat they set up a pur.
chase under John South, the executor of Wil'
liam Hoy, in 1T91, when South had no pr«-
tense or color of title to the land, except as
having married one ot the legatees of Hoy;
and through her he could claim 'only ft ['3411
naked legal title, the equity having been trans-
ferred by Hoy in his lifetime.
And afterwards, in 1792, when South ob-
tained the assignment of Searcy's bond, by
George Boone, as the attorney of Thomas Boone,
the assign mr-nt was inoperative for want ol
[tower in the attorney. 'This assignment, upon
its face, would direct every person who claimed
any interest under it to the authority by
which peorge Boone acted.
Had Smeltzer and Smith, the first purchas-
ers, notice of this defect in the assignment to
-South I
In his deposition, Nicholas Smith says "that
he bought a bond of John South in 1798 for
two hundred acres ot land, out of the tract in
controversy, and that, shortly after, he pur.
chained from South the residue of the tract,
supposed to be sixty or seventy acres, after sat-
isfying Smeltzer's purchase ot four hundred
acres. And, at the same time, he lent South
three hundred dollars, which sum was to go as
payment for the land, and if that sum over-
run, he was to pay bnck, and if it fell short, the
witness was to pav the balance. He took pos-
session of the land, and has e\-er since held it.
under this purchase; but he afterwards found
out that South bad no right to sell the land,
nnd brought suit against him, and recovered
back the three hundred dollars."
The time that Smith ascertained that South
had no right to sell the land does not appear)
but the tacts stated authorize the inference
that this knowledge was acquired by Smith
not long subsequent to the purchase. Sometime
before 180D, it appears South was very much
embarrnssed. and in that year was confined as
a lunatic. The suit of Smith must have been
brought before South 's extreme embarrassment,
OS the money was recovered from him, and in
all probability the money was repaid to Smith
within five or, at most, six years ot his purchase.
Barbara Smelt;er, the wife of Peter Smeltz-
er. who purchased the four hundred acre tract,
states in her deposition that her husband made
(he purchase of South, etc., who claimed the
same under the bond from Reuben Searcy to
William Hoy. and assigned by Hoy to Geoi^
Boone ; that, at the time they first settled, John
South represented to her husband that he had
traded 'for the said bond, hut that they [*250
aftern-ards found out he had not got the bond,
hut soon afterward! ht obtained it from George
Sdpbbice Coubi or tux UinrKo StAtu.
John Walton, a wttnes*, atate* that he acted
U oii« of the commissioD«r« to divide the Und.
agreeably to the »i[l of Peter Smeltzer. de-
ceased, about the jear 1806 or 1806; and that
there woa conrerwtioD at that time, among
the hein of Smeltzer. about South and Uoy'a
bond," etc.
Joaeph St«ele, a H-itnesa. itates that he was
iofonned by George Boone, that Smeltzer had
notice, before he purehased the land from South,
that it belonged to Thomas Boone. This itate-
ment •eetns not to have been objected to in the
Circuit Court
Jamea Robinson, a witness, being present
when the deposition of Barbara Smeltzer was
talcen, was astonished to find that a person of
her age should describe ao accurately Searcy's
bond to Hoy. a* to its date, the land called for,
etc.
Benjamin Mills, an attorney at law, who was
•worn as a witness, states, in 1S2S. that many
Sears before, Peter Smith, and either John or
acob Smeltzer, and periiaps Nicholas Smith.
applied to him to bring suit for the legal title
of the land, and especially for that part de-
icrit>ed in the bond sizned by South. Carr, and
Glover; but on eTsminin^ the title, although
tin witness declines making some statements
on account of professional confidence, yet he
says, substantially, he considered ttje title
wholly defective under the assignment of South,
and, tor that reason, declined bringing suit. As
the witness left the bar for the bench in 18IB.
and as he speaks of the bond of South. Ciirr,
and Glover, which waa given up in 1317 to
Chiles, this conversation must have been prior
to that time, and, prottabiy, was several years
But in 181T, Smith and the heirs of Smeltter
surrendered to Chiles the bonds they held on
South for the land, and Imught the land of
Chiles, agreeing to pay him for it ten dollars
per acre.
Chiles, having possession of the bonds of
South, who was tnen deceased, rescinded the
contract with his executor, gave up South's
351*] 'bonds for the land, and received from
the eiecutor Searcy's bond, after the erasure
of the assignment by George Boone, as the at-
torney of Thomas, to South.
Judge Mills, while at the bar, brought an ac-
tion of ejectment in the name of Hoy's heirs,
to recover possession of this land; but it waa
dismissed for want of prosecution. Afterwards,
in the year 1817, he brought a second eject-
ment, wuich was served on the tenants ; against
whom a final judgment was obtained by the
verdict of a jury, defense being made in 1818.
To open a judgment by default in this cause.
Nicholas Smith and Jacob Smeltzer swore that
"thev had no expectation tliat William Chiles
would have prosecuted the suit to judgment
acainst them, as they had purchased from him
tbe title of Hoy's heirs tor the sum of six thou-
sand dot Ian. nine hundred dollars of which
•urn they had paid to him. and that the bal-
tuice was not then due. They stated they held
Chiles's bond to convey to them Hoy's title,
and that, when the compromise waa made, the
suit was not to be prosecuted, etc.
In 18S0 or 1821, George W. Baylor purchaaed
the interest of Peter BmeltMr's devisees In the
tract of land in eontroversy; and mi the 25th
«14
of August, 1S21, received a conTeyanee for me
third of the tract from Anna Maria Smeltaei
and her husband. Tbe consideration named
in the deed is nine hundred dollars, and tb)
grantors only convey their riifht, title, and iU'
terest, and warrant against themselves and all
persons claiming under Ihem. And for tbt
residue of the tract. Baylor holds the bonds of
John and Jacob Smeltzer. but what eonaidcra-
tion was paid or contracted to be paid does not
appear. George W. Baylor having died shortly
after the commencement of this suit, it has bees
carried on against his heirs who are m.ide par-
ties. The heirs of Cummings, who are defend-
ants, seem not to be entitled to any fart of this
land. It then appears that the heirs and as-
signees of Nicholas Smith, and the heirs of
Baylor, are the tenants, and tlie only persons
who rely upon the lapse ol time and the length
of possession to protect them in this case.
iJamea Hutchins. a witness, swears that
George W. Baylor took possession ol the land
in dispute sometime in April, 1823. That he
'does not remember whether he heard [*2&3
Baylor say anything particularly about Boone's
claim, before he moved to the land. But, the
witness states, after Boone Englea's return
from Pennsylvania, in 1822. h> heard bim tell
Baylor tiiat be nas authorized to investigate
Boone's claim, and that be would have the land.
And William Burr, a witness, saya, "before
Kngles went to Pennsylvania he heard him and
Baylor have some conversation about the claim
of Thomas Boone to the land now in contest
The diiponent has not a distinct recollection of
what was said, but is under the impression
Baylor spoke of an intention to purchase
Smeltzer's land, and that Englea advised bim
not to do it. iKcause tbe land belonged to Thom-
as Boone. He also thinks that Baylor and
Engles had some conversation about forming a
pnrtnership in the investigation of Boone's
claim." ''He says, after Engles's return from
Pennsylvania, and before Baylor had removed
to the land. Engles and he had different con-
versations respecting Boone's title."
These are the leading facts on which tb*
heirs of Baylor and Smith claim protection of
a court of chancery from the lapse of time,
and the equitable circumstances of the case.
In the first place, they claim under the same
title as the complainants, and not in hostility
to it
South had no right under the assignment of
Georgia Boone, and there is no evidence that
the purchase money was paid by Smeltzer or
his heirs to South ; and the amount paid by
Nicholas Smith was sued for and recovered
from South, after it was known that he bad no
title to the land. And this must have beeo
v.itliiii a very few years after the purchase of
Smith, not exceeding ten yeara, and perhapa
less than Ave.
That Smeltzer had notice of the want of titl«
in South is certain from the depositions of hi«
widow. Barbara Smeltzer. and Joseph Steele.
She states that when South sold to them the
land be had not the bond of Searcy, but that
be afterwards obtained it. With accuracy sh«
detailed the substance of the bond, its date, and
the assignments, Smeltzer, therefore, as abe
states, was well acquainted with tbe fraud ot
South in selling the land 'before be had ['SSa
tW BooNK n t
ft title, and thla ihouM have put 6meltzer on
hii guard. He >'aa, do doubt, aa well acquaint-
ed with Searcy't bond aa hia wife, and the m-
lignracnt of George Boone w.ta evidence upon
JU face thftt unleaa he acted un '
from Thamaa Boone, the asaignmi
An action of ejectment was c
the name of Uoy'a heirs to recover potiscg^ion
of the land, which was aFtvrwardi discontin-
ued. Aud afterward!), in 1817, when ChiJea,
under his purchase of Uezekiah Boooe, and
having the e&nction ot George Boone, the
attorney of Tliomaa Boone, to investigate
the title, the tenants surrendered the bonds
they had on Soath, although security was
given in the one held by Smeltzer'a heirs
to Chiles, who cancelled the contract with
South and sold the land to the tenants. It is
true this contract of Chiles is represented
have been obtained by fraud; but the paymi
made under it, and the use made of it to i
aside a judgment by default in the ejectment
suit, show that they hud wholly abandoned the
claim of title under South.
And. as it regards Baylor's heira, they
in possession only one or two years before the
comni en cement of this suit; and their ancestor
purchased nothing more than the right of An-
na Maria Smeltzer, one of the legatees ot Peter
Smeltzer, with only a special warranty, and of
John and Jacob Smeltxer, the other legatees of
the land ia dispute; and the inference is au-
thorized that the same interest, and no more.
Has to be conveyed under the title bonds, and
this with a full knowledge of the complainant's
equity, and of the total defect of title in the
legatees. Can a right thus acquired and as-
serted he protected by lapse of timer Does It
come within that salutary rule which has been
adopted to preserve the peace of society, and
protect right* long acquired and enjoyed with-
out interruption, against stale demands! Did
Bot Baylor purchase the interests of Soieltzer's
l^tees on speculation I Knowinc the title
of the legatees to be defective, or rather to liAve
DO foundation on which it could be sustained,
did be not purchase itT aud, under such cir-
cumstances, how can the lapse of time aid himT
If this principle might have been invoked by
Smeltzei^B legatees, is the same right trans-
1S1*] ferred to Baylor, who 'purchases the
interest of the legatees without a general war-
ranty, and for a valuable consideration T This
appears to me to have been a purchase that
does not draw after it the equitable considera-
tion* which were connected with the title of
Peltier's legatees; and if it did. 1 am not pre-
pared, under the circumstance*, to say that it
M entitled to the protection ot a oourt of chan-
cery.
It appears to me that the purchaa* was made
with more reference to the value of the im-
provements than the title of the tenants, and
ander the expectation that, if the land should
be lost, compensation for the improvements
would re-imburse the purchase money.
And aa it regards the title of those who claim
nnder XichoU* Smith, it seems not to require
a much more favorable consideration. The
Boncy proved to have been paid by Smith, on
the purchaae froiu South, was recovered back
•gain; and the heirs abandoned the claim un-
der Soutli, ■4id purchased from Chilea. H«
T. Chiub rr aih Ha
purchased flfty acre* of Jone*, which is covered
by Fluiirnoy's patent, and he is protected,
under the statute of limitations, to this extent.
I bave looked through the coses decided in
this country and in England, and 1 can i)nd
no instance where lapse of time, under circum-
stances analogous to those uliieli belong to this
ease, has been held sutlicient to protect the
possession against a dear equitable title.
The presumptions in favor of the tenants,
which might arise from lapse of time, are re-
pelled by the facta and circumatancca of the
case. These must always be regarded aa con-
trollijig mere lapse of time ; and they arc such,
in this case, as to convince me that to protect
the rights set up by the tenants would sanction
n new rule, and one that wouM be dangerous
to bona &de claimants. I am, therefore, of the
opinion that time, which cures many imper-
fections in a meritorious title, and often au-
thorizes the presumption of title where nunc
in fact exists, cannot protect the tenants in this
That the complainants should be decreed to
release their interest to the tenants, under the
contract they made with Chiles, is, to me, a
most extraordinary result of the controversy.
I cannot 'give my sanction to the prin- ['255
ciples on which it rests, if the decree enforces
this contract, then must lapse of time be aban-
doned, for the contract bears date only five or
six years before this suit was instituted; and
on what principles such a deeree can be made,
in the relation which the parties bear to each
other in the suit, and in the present slate of
the pleadings, I am unable to comprehend.
This contract is declared by the tenants to be
fraudulent; and they have refused, by their
whole proceedings in this suit, to be bound by
it. They have invoked the aid of a court of
chancery to annul and set aside this contract,
and, 1 believe, have taken steps to recover
back from Chiles the money they had paid him
on it.
But this contract is not only declared by the
tenants to be fraudulent and void ^ the com-
plainants also denounce it as fraudulent. It
finds favor in the eyes of no one but Chiles.
And yet this contract, thus treated by the
complainants and defendants, and made by
Chiles without a color of right, is made the
basis of a decree of this court, which takes
from the complainants and ^ives to the de-
fendants a large estate. Chiles, though the
fraudulent instrument in making this con-
tract, is not permitted to enjoy any advantages
ider it.
If the complainants had adopted tiiis con-
act; if they in any manner had sanctioned
the contract by treating Chiles as their agent
in selling the land, there nould be some ground
Lo decree a specific execution of it. But the
:omplaiiianla have not sanctioned the conduct
of Chiles in making this contract; and, so far
roin seeking anything under it. have declared
t to be fraudukint and void; and yet, in de-
ipite of them, it is made the rule by which
their rights are decided. I am altogether op-
posed to the decree on this ground.
As the decree of the Circuit Court is re-
versed, it cannot be necessary to say anything
respecting the decree whicti was made respect-
ing the rent* and proflta. It will be found.
41B
CBS
BUPBBHS COUBT OF THE UldTD STAIO.
bowever, that Hoy hkd eight heirs, t«o of
whom, F&any Hoy and Joaea Hoy, were de-
fendants in the suit, and that Chi lea had
received cooveyancea from two of the heira
356*] besides NewUnd and 'wife. And aa
Chile* wftB decreed to convey big interest, and
the two heirs of Hoy, who were defendants,
were decreed to convey, also, under this decree;
the complainant* became vested with four
eichta of the land, and he was made account-
aUe to pay for that proportion of the improve-
menta, and in the same proportion was held
entitled to the rents.
Elizabeth South, whose deed is in the rec-
ord, is not a party to the suit, and the court
could not act on her interest.
S6T*] *SAMUEL SFRIGO, Plaintiff In Error,
THE BANK OF MOtJNT PLEASANT.
Principal and surety — obligee declared in bond
to be a principal debtor estopped from show-
ing he was mere surety — discharge of surety.
Tbe plalatiir In error, with others, executed to
the Bank ot Mount Pleasant, a scaled oblleatlon
tor tbe pavment of tbg sum of 12,100 st the ex-
piration of slitj da;s, and In tbe lastniment,
escti of the parties to It ackDon'ledged liluiselt
bound aa principal. The monej wu loaned on the
Inatrument to and lor the eiclnslve beD«at of one
oC the parties to It: and after the time ot payment
■rrlied; the bank gave a further credit to ttie Uor-
rower. recelvlEg trom him the diHcount for the ei-
lentloD of pajment. No notice waa clveo to tlie
other parllea of this fact. Tbe amount loaned not
havlDf been repaid, tbhi eult was Inetltuted on the
obllEatlon. and the defendant pleaded several pleas,
alleging he was dlscbareed from all llabllltj under
tbe obligation. Tb? plaintiff replied ibat each at
the obllgora having acknowledged blmselt as prin-
cipal In the Instrument, all were estopped Iroffl
setting up any defense In opposition thereto.
Bi THS i.ouaT: Tbia case Is to be governed b;
rules applicable to proceedings In courta of law,
and upon this point the rule seems to be well set-
tied that when principal and suret; are bound
lolntlr and several])' on a bond, altboagb there Is
no express admission on tbe face of tbe Instru meet
that all are principals, yet tbe surety cannot aver
by pleading (hat he Is surety on)y.
when one who Is In reality only surety, Is willing
to place himself In ^he situation o/^prlnclpal by
blmselt a
ssly dec
ring upon bis c<
sucb. there ci
□ which
IN errjr to the Clrenll Court of the United
States for the District of Ohio.
The defendant lo error inatituLed in the &t-
cuit Court an action of debt on the followinf
obligation, executed by the plaintiff in error,
and others:
"Know all men by these presenta, we Peter
Yarnall 4 Co., Samuel Sprigg, Richard Symma,
Alexander Mitchell, and Z. Jacobs, *as [*K&8
Srincipals, are jointly and severally held and
naly bound to the President. Directors and
Company of the Bank of Mount Pleasant, for
the use of tbe said Bank of Mount Pleasant, ir
the just and full sum of Z,10D dollars, lawful
money of the United States; to the payment of
which sum, well and truly to be made to the
said president, directors and company, for tbe
use aforesaid, within sixty days from the date
hereof, we jointly and severally b' '
our he' ......
with o
20th of February, A. D. 1826.
"Peter Yarnall k Co,
"Samuel Sprigg,
*Tli chard Symms,
"Alexander Mitchell,
"Z. Jacobs,
To the declaration on this obligati
IS ss a partner wltb the debtor, and bns
Ighl to disclaim the character of principal
creditor bas 10 treat him as principal. If
!t out In tbe obllgatloD that be was only
defendant's being
— but It Is alleged
from Betting It up by bis own
innitiii lu u.B (lOllgallon that be Ii principal.
■re are not aware at aoy ease giving counCc. I
« to sucb a defense at law. under suci> '■ifrnm, '■
It Is an estobllsbed rule !□ demurrers that al-
though the pleading demurred to mar be defective,
the court will glye Judgment HBiiLnfit the nartv
whose pleadliiB "— ■ -■-'-
It Is the sel'..._ ._ _ .-
ties, that eitendlng Co principals further time at
payment will discharge tbe surety.
Mote. — As to estopped by recital In deed. will.
or other Instrument, see note to T L. ed. U. B.
What forbearance or extension of time to princi-
pal debtor will discharge surety, see note to ]2 L.
cd. V. a 111.
Effect under negottablc Instrument law, of ex-
tension of time to principal to relesae one who, on
ae lace of the Instrnment. Is prlmartlv liable, but
' IB taet a sDrst;. •»• note to 10 LJl.A.(N.8.)
[Seal],
[Seal].
[Seal].
[Seal].
[Seal]."
fendant pleaded the general issue, and six
special pleaa. The questions which were dis-
cussed and decided by the court, were presented
on tbe second pica and sixth.
The second plea was as follows:
2. And for further plea in this behalf, by leave
of the court here for that purpose first had and
obtained according to the form of the statute
in such case made and provided, the said Sam-
uel, by his said attorney, comes and defends,
etc., and aays that the said plaintiffs ought not
to have or maintain their action aforesaid
against him, because he says that the President,
Directors and Company of the Bank of Mount
Pleasant constitute an incorporated banking
company. located at Mount Pleasant, in the
County of Jefferson, In tbe State of Ohio, doing
and transacting business in the usual manner
of a bank: and that the said t2,I00 mentioned
in the said writing obligatory, waa a loan made
by the plaintiffs as such banking company, in
the ordinary way of making such loans at said
bank, to the said Peter Yarnall A Co. and for
their accommodation; and that the said writ-
ing obligatory was given to said bank for tbe
sole and only purpose of securing the payment
of the said loan at the expiration of thirty daya
from the date thereof, and that the said Samuel
Sprigg, as also the said Richard Symms, Alex-
ander Mitchell, and Z. Jacobs, were in tnitb
and in fact securitiea for the said Peter Yamall
t Co,
ays as aforesai
" . " Iplsii
said Peter 'Yarnall k Co. received for [*2S*
their own exclusive benefit and accommodation
the entire amount of the said $2,100, and wer«
BO entered and chnrged on the books of tha
plaintiffs, in their said bank; and the defend-
ant further avers that at the time the aa.id
writing obligatory became due, to wit, on th«
2Ist day^ of April, Anno Domini 1629, U)«
aaid plaintiffs, for and in consideration of
522.48, paid by the said Peter Yarnall 4 Co to
the said plaintiff* for the discount or interest
Peteri to.
la
Snuoa V. The Bark nr Mounr Pi,ea8aiit.
fa advwiee on tbe Mid tS.lOO, tor sixty days
then next following, undertook mnd agreed
with the Mid Peter Yamall & Co., without the
knowledge or consent of the said Kamuel
Sprigg, Richard Symma, Alexander Mitchell,
and Z. Jacobs, or either of them, to give a fur-
ther credit on the aaid loan of si:it; dajs, and
to extend the time of payment thereof for sixty
lays, from and after the said 2lBt day of April
last aforesaid ; and the defendant avers that the
laid plaintiffs did give to the said Peter Yarnnll
t Co. the further credit and time of payment
thereof for sixty dnys as aforesaid, and witliout
Ihr knowledge or consent of the said bamuel
Bpri^l!, Richard Symms, Alexander Mitchell
and Z. Jacobs, or either of them, and against
their will; by means whereof the said Snmuel
Sprigg says that he is discharged from all lia-
bility on or by virtue of the said writing obliga-
tory, and this he is ready to verify; wherefore
be prays judgment, etc.
The aixth plea was :
e. And for further pjps in this iiehalf. by
leave of the court here for that purpose first
bad and oblsined. according to the form of the
tbfute, the said Samuel, by his attorney, comes
and defends, etc.. and says that the said plain-
tiffs Du;:bt not to have or maintain their afore-
said action a^inst him. because he says that
tbe said plaintiffs are an incnrporsted banking
company, doing and transacting business in the
atual way end m,inner of banks, and that
the said {2,100 mentioned in the said writing
obligatory in the plaint ilT's declaration de-
scribed, and of which oyer is craved, and the
same is set out in the said Snmucl's (irst plea,
was a loan made by the said plamtiffs at their
banking house, in the town of Mount Pleasant,
in tbe said County of Jefferson, in the usual
way of making loans at said bank to and for
the sole benefit and accommodation of Pct«r
Yamall &. Co.. the first obligors in said writing
obligatory; and that the said writing obligatory
was given to the said bank for the sole and only
purpose of securing to said bank the payment
of the said loan so made to the aaid Peter
Vamall i. Co. as aforesaid, in si.ity days Irom
IBO*) the date ■thereof, and that the said
Samuel Sprigg. Richard Symms, Alexander
Uitebell. and Z, Jacobs, were, in truth and in
fact, merely securities of tbe said Peter Yarnall
& Co. for tbe payment of the said loan in sixty
daya as Aforesaid; and were so received and
accepted, and treated throughout by the said
plaintiffs, in all the transactions in said bank
relating to said loan ; and the said Samuel avers
that a4 the time the said writing obligatory he'
came due. t« wit. on the 2Ist day of April,
Abbo Domini 1S2B, the plaintiffs, in considera-
tion of t22.40. paid to tfaem by tbe said
Vtttr Yamall & Co, for tbe discount or in-
terest in advance on the said 32.100, for
aiity day* then next following, undertook and
agreed with the said Peter Yamall Jt Co., witb-
ont tbe knowledge or consent of the said Sam-
nel Sprigg. Richard Symms, Alexander Mitchell,
and Z. Jacobs, or either of them, to give, and
then and there did give to the said Peter Varn-
aU A Co. the further credit and further time of
pavtnent of the aaid loan and the said writing
obligatory for sixty days, from and after the
«id 21at day of April aforesaid; and the said
Samuel fortlier »nra Uwt aiterwards, to wit.
. at the expiration of the said sixty daya. further
credit and time of payment as aforesaid, and
at the expiration of each and every sixty d;iys
successively thereafter until the 24th day of
March. Anno Domini 182S, the said plaintiffs
did receive at their bank in the said town of
Mount Pleasant, of and from tbe said Peter
Vamatl & Co., the sum of C22.40. for the
discount or interest in advance of the said
loan of $2,100. and at each consecutive day
lit discount and payment of interest in advance
as aforesaid, until the said S4th day of March,
Anno Domini 1S29. that said plaintiffs did,
without the knowledge or consent of the aaid
Samuel Sprigg, Richard Symms, Alexander
Mitchell, and Z. Jacobs, or either of them,
and in consideration of tbe said sum of 122.40
so paid to them by the said Peter Yarnall
1 Co. on each of the said days of discount
and payment of interest in advance as afore-
said, agreed with the said Peter Yamall ft
Co. to give, and did then and there give to
the said Peter Yarnall & Co the further credit
and time of payment of said loan of sixty days,
from and after each consecutive day of discount
and payment of interest in advance as afore-
said, until the said 24th day of March afore-
said; and the said Samuel further avers that
afterwards, to wit. on or about the said 24th
day of March, Anno Domini IB2B. the said Peter
Yarnall & Co. failed in business, became in-
solvent, and unable to pay their just debts, and
that the said Samuel Sprigg. Richard Symms,
Alexander Mitchell and Z Jacobs 'bad [*3SI
not, nor had either of them any notice of tbe
nonpayment of the said loan, or of the outstand-
ing of the said writing obligatory fron the
time the same became due, to wit, on the 2Ist
day of April. Anno Domini 1826, until after
the failure and bankruptcy ol the said Peter
Yarnall i Co., as aforesaid; by reason whereof
he, the said Samuel, says he ought not to be
charged with the aaid debt, or any liabili^
on or by virtue of the said writing obligatory,
all of which he is ready to verify; wherefore be
prays judgment, etc.
To the second and sixth plea the plaintiff re-
plied, that the said Samuel Sprigg, together
with Peter Yarnall & Co.. Richard Symma,
Alexander Mitchell, and 7.. Jacobs, acknowl-
edged themselves to be jointly and severally
The defendant demurred to this replication.
The Circuit Court gave judgment for the
plaintiff on the replication to the second and
sixth pleas: from which judgment the defend-
ant prosecuted this writ of error
Tbe case was argued by Mr Ewinf for the
plaintiff in error, and by Mr. Cannon for the
defendant.
Mr. Ewing stated that the suit arose out ot
the banking transactions of the defendant in
error, in which. In order to get rid of the dilE-
culties attending on loans on promissory notes,
tbe form of a single bill had been adopted. Up-
on sucii an instrument the bank extended the
credit given to the borrower, without surren-
dering the obligation; and they supposed it
might be done without impairing the liability
87 417
2ai
SUPGCUI CODRT or THE UHITEO BlATES.
of any nf the parties to the inatrument. This
]b dp-iiod. The rpal borrowers of the bank
were Pctpr YBmal) 4 Co. Hail the other par-
tips til it known that the time for the payment
of Hip deht was extended, th<>y coiild hare pro-
tectcil thpmsrives. The defendant below had
a ri^lit to show these facta, and this was the
objpct of the pleas.
He contended that the plaintifT in error should
not be estopped to plead his second and sixth
pleas, because they are not necessarily in con-
tradiction of his bond. He may have signed
the bond "as principal." and yet all tbe facts
■et forth in the plea, which show him to be a
surety for the paympnt of the money, may be
262*) "U the plea be not necessarily incon-
sistent with the bond, the party is not estopped
to pread it.
The legal effect of the instrument ii in no-
wise clmnj-ed by the insertion of tbe words "as
principal" in the bond. All joint and several
obligors are principals, unless the contrary ap-
pear 4 Ves. 824; 3 Atk. 31.
One of several joint and several obligors may
Klead that he is but surety. The Bank of Steu-
cnville » Carroll's Administrators, 6 Ham-
mond's Hop. 207: Paine v. Packard. 13 Johns.
Rep. 174; King v. Baldwin. 2 Johns. Ch. Kep.
5.54; S, C, 17 Johns, Rep. 394.
He also contended that the third and Hfth
pleas are good. They act forth, in substance,
that this was a banking transaction : that Sprigs;
was but surety for the loan ; and that the plain
tiff, by agreement, founded on a mnney consid
eration, did. on the day the bond became due.
give Yarnall k Co., tbe principiat debtor, fur-
ther time to make payment, and this without
the knowledge or consent of the surety.
The pleas are certain to a common intent.
By a fair construction of their several clauses
they suineiently set forth all these facts. H.
Black. S30i Doug. 15S-, I Snund. 274. n. 1.
The averment of the new contract, to give
time, is good, without showing whether it was
agreed in writing or by parol. It will be in-
tended that tbe agreement waa valid. 2 Saund.
305, ;
13.
I under seal may be waived or post-
poned before brsacb by entering into a new
contract by parol. The United States v. Howel,
4 Wash. C C. R. 022; 2 Ves, Jun. 542; 2
Randolph. 333; The United States Bank v
Hatch, (S Peters. 2SB; 16 Johns. Rep. 71; 8
East's Rep. 676.
Mr. Cannon, for the defendant.
The obligation on which this suit was insti
tuted was taken in the form in which it waa ex-
ecuted to avoid the dillicultipj which the plain
tilT in error endeavors to raise by the pleadings
The bnnk. not desiring to limit the loan to the
period stated in the obtigation. and yet desir
ous to avoid the difficulty which an extension
of the loan without a new obligation would cre-
ate, have taken from the parties an acknowl-
edgment, under seal, that each is bound sev-
trally as well as jointly. The question to be
decided by this court is, whether this is an
estoppel to the allegations in the pleas. If the
2«3*] court 'shall decide that such is tbe ef-
fect of the instrument, they will affirm the
judgment of the Circuit Court.
He denied that any case can be found i(i
41t
only a surety. None of the caws ..
ferred to by the counsel for the plaintiff in
error sustain the position
After a particular examination of the ease*
cited by Mr. Ewing, Mr. Cannon cited EnnI
v. The United States, 1 Gallinon's Rep. IfO.
To establish tbe doctrine of estoppel, as anpli-
cable to the case, he cited Chitty on Plead.
0301 Williams's Rep. 9) Chitty's Equitv Di«.
393; 1 Saunders. 316; 7 Crancb. 223
Mr. Justice Thompson delivered tbe opinion
of the court;
This case comes up from the Circuit Court of
the District o( Ohio upon a writ of error. 11 is
an action of debt upon a single bill or obliga-
tion executed by the plaintiff in error and sev-
eral others, bearing date the 20th of February.
182S, for the payment of $2,100, sixty days
after date. The declaration is in the usual
form. The defendant pleaded tire general is-
sue, and five special pleas. To the second and
sixth pleas the plaintilT replies. and tbe defend-
ant demurs to the replications; and to the third,
fourth and fifth nieas the plaintifT demurs.
Judgment was rendered for the plaintiff in the
court below, on both demurrers. The material
question in the case arises upon the second anJ
sixth pleas, and the replications to them, oyer
of the obligation having been craved, end
spread upon the record. The second plea sels
up in bar of the action that the $2,100 men-
tioned in the writing obligatory, was a lo.in
made by the plaintiff to Peter Yarnall & Co.
(the first named obligors), and for their accom-
modation ; and that the writing obti;;atory wm
given to the bank for the sole and only purpose
of securing the payment of the said loan at the
expiration of sixty days from the date thereof,
and that the defendant and Richard Symms,
Alexander Mitchell, and Z. Jacobs, were sure-
ties only, and were so received and treated by
the plaintiffs; that Peter Yarnall k Co. re
ceived. for their own exclusive benefit, the en-
tire amount of the said $2,100. and were so en-
tered and charged on the books of the bank;
and it is then averred that when the writing
obligatory became due. the plainiiffs, on pay-
ment of $22, as the discount for sixty days
then next following, agreed with the said Yarn-
all & Co., without the knowledge and consent
of the defendant and hia co-sureties, to give a
further 'credit of sixty days on tbe said [•2«4
loan, and did give such further credit; by rea-
son whereof the defendant alleges that hf is
discharged from all liability on said writing
obligatory. The sixth plea is substantially the
same, with an additional averment of a further
extension of credit on the loan, and tlie ina-il-
vency of Yarnall k Co. To the allegation in tb«
pleas that the defendant and the others named
were sureties of Yarnall & Co., the plaintifTs
reply that the defendant ought not to be per-
mitted to plead the same, because they say that,
by the said writing ohiigntory, tbe defendant
and the other obligors by the said writing oblig-
atory, acknowledged themselves to be jointly
and severally held and firmly bound, as prin-
cipals, for the payment of the said 9^,100
to the Bank of Mount PIea<iant. To thia
replication the defendant demurs ; and th»
Pet«ra la.
UM
Sraioo V. Thk Bahk or Uouwt PixuAm.
ml qimtfon nitsrf by thM« ple»diii(>B (•.
whether the d^fenilant cm «et up in his defense
that he w>B onlf siiret; In the obligation [or
ViTnall A Co., (n direct oppositiun to his ac-
know-ledgment that be rxecuted it u • princi-
pal. It is unnecegMry to enter into the iDtfUirf
■rhcther tt would not have been more correct
pleading for the plaintiff to have demurred
to the defendant's pleu instead of replying.
The defendant oraved oyer of the obligation,
and it ii spread upon the record, and ia to be
taken aa a part of the declaration. And if the
npIicatioD should be considered bad, the plea
ii open to examioation. It is an established
ntle in demurrers that although the pleading
demurred to may be defective, the court will
giTe judgment against the party whose pleading
was tirst defective in substance. The question
is therefore to be considered upon the validity
of the plea. If the defendant can be let in to
set up that he was surety only, the matter al-
leged is sufficient to exonerate him from liabil-
i^ in the present suiL It falls within the set-
tled rule of law in relation to sureties, that ex-
tcndinc to the principal further time of pay-
ment, by a new agreement, will discharge the
surety. This, ind^, has not been denied on
the argument. It lias been contended that it
appearing expressly on the face of the bond
that the defendant acknowledged himaelf as
principal, did not vary the question; for that
all joint and several obligors in a bond are, in
judgment of law, considered principals. This
is trup, as a prima facie presumption of law;
but ii not conclusive upon a party when drawn
in question before a proper tribunal. But as
matter of estoppel at law, it may stand on a dif-
ferent footing; and U, at all events, aa matter
of fact more conclusive. The doctrine of the
)«R*] law upon this point is plain and 'ex-
plicit, and it does not require the multiplica-
tion of authorities to show that the rule is well
pstablished. In Huntington v. Havens, 6
Johna. Ch. 26^ it is laid down that a general
recital in « deed will not conclude a party,
though the recital of a particular part may es-
top him. Coke Litt. 362, a; Wila, Rep. 9.
.^nd in Stow v. Wi.te, 7 Conn. Rep. 220, it Is
said by the Supreme Court in Connecticut that
when a party has soleniQly admitted a fact t^
ileed under hia hand and aeal, he ia eatopped
lot only from disputing the deed Itaelf, but
rvery tact it recites. And in the c*m of Car-
'. er T. AatOT, 4 Peters, 83, this court, in speaking
III the effect of recitals and their operation by
way of estoppel, say that the recital of the lease
in the deed was not only evidence between
the*« parties of the original existence of the
lease, but waa conclusive evidence of that orig-
inal existence. An estoppel has sometimes
been quaintly defined the stopping a man's
mouth from speaking the truth; and would
Mem, ia some measure, to partake of severity,
if not of injustice. But it ia in reality founded
upon tbe aoundeat principles, as a rule of evi-
denee. That a party has, by his own volun-
tary act, placed himself in a situation aa to
some matter of fact that he is precluded from
deaying it; and in its application to tbe deal-
ing* and eontracta of men in the affairs of hu-
a life, it is a salutary practical rule that
mitted to deny what he hi
wledged. In ordinary cases.
when sureties sign an instrument without any
designation of the character in which they be-
come bound, it may he reasonable to conclude
that they understood that their liability waa
conditional, and attached only in default of
payment by the principal. And he nee the
reasonableness of the rule of law which requires
of the creditor that his conduct with respect to
his debtor should be aaeh aa not to enlarge the
liability of the surety, and make him responsi-
ble beyond what he understood he had bound
himself. But when one who is in reality only
surety, Is willing to place himself in the situa-
tion of a principal by expressly declaring upon
his contract that he binds himself as such, there
cannot be any hardship in holding him to the
character in which he assumes to place himself.
As to that particular contract, he undertakes aa
a partner with the debtor; and has no more
pal if he had set out in the obll^tion that he
was only surety. These observations are only
made for the purpose of showing there is no
hardship in the ease; for It is most generally
from the hardship of particular cases that at-
tempts are 'made to innovate upon (*2«
general principles. And courts sometimes too
readily yield to considerations of this kind, to
attain what may be considered the abstract jus-
tice of the particular case before them.
But admitting that althouc-h the defrndant
has upon the face of the obliLration become
bound as principal, yet a court ot equity might
allow him to act up that he was only surety,
and let him in to all the protections that are
usually extended to sureties; the present case
is to be governed by rules applicable to pro-
ceedings in courts of law; and upon this point
tiie rule seems to be well settled that where
principal and surety are bound jointly and
severally In a bond, although there is no ex-
press admission on the lace of the instrument
that all are principaU, yet the surety cannot
aver by pleading that he is surety only. In
the case of Rees v. Barrington, 2 Ves. Jun.
542. Lord Loughborough held that when two
are bound jointly and severally in a bond, they
both appear as principals, and llie surety can-
not aver that be is bound as surety ; but if he
could establish that at law, the principle at law
is that he has an interest in the condition, and
if the time of payment is extended, that totally
defeats the condition, and the consequence Is
that the surety is rebLised from his engage-
ment. This point is directly adjudged in the
case of The People v. Janaen, 7 Johns. 3^7,
The question there turned entirely upon the
pleadings, and the court let in the defense
which discharged the surety upon the sole
ground that it appeared upon the face of the
bond that the ancestor of the defendant was
aiirety only, otherwise the defendant would
have been estopped by the bond from alleging
that he was surety oaW. But the fact appear-
ing upon the fae^ of the bond, the defense
might be set up at law as well as in equity.
The case of Paine v. Packard and Munson, 13
.lohns. 174, although the court admitted the
surety to set up b^ plea at law matter in dis-
charge of his liability, ia very dtstingiiishabte
from the present case. That was a suit Upon
■ oromissory note, and the court, upon demnr-
41*
SM
Snmwt OouKt or thi Unimt Siatii.
nr, austalncd a plea tnterpoaed bj the aurc^,
alleging a. special request maile to the plaintiff
to prosecute the principal, ajid averring a loss
of the debt by reason of his negi^et to prose-
cute. The plea in that case was sustained on
tb« ground that there was no conflict between
the note and the avermente in the pli^a. For,
■ay the court, tbe averments and facts stated
in the plea arc not repugnant or contradictory
to the note. That the fact of Packard having
been surety onty, ii fairly to be presumed to
hum been known to the plnintiR; and be was
SSI*] in law and equity bound to 'use due
diligence against the principal, in order to ex-
onerate the surety. The plea averred that
Packard signed the note as surety, and the de-
murrer admitted the facts. Had it appeared
upon the face of the note that Packard signed
it as principal, there is no reason to conclude
that the court would have let in the defense
then set up, It could not, in such case, have
been said that there was no repugnancy' between
the averments in the plea and the note; which
wai the ground upon which the plea was sus-
tained. But this cuse has not, under any view
of it, relaxed the rule with respect to bonds or
sealpd obligationa, which are not open to an in-
quiry into the consideration. The case of
Paine v. Packard was a suit between the orig-
inal parties to the note — the payee against the
makers. Packard, although surety, aigned the
note as one of the makers; and between the
original parties to a note the consideration may
be inquired into. In the case of King v. BaLo-
win, 2 Johns. Ch. 658, the Chancellor says;
1 do not understand the Supreme Court as
holding in the case of Paine v. Packard that
the averment would be admitted in direct op-
position to the terms of the note, that such evi-
dence would be entirely inadmissible. Aad as
to this proposition, we do not understand there
was any ditTerence of opinion between the Su-
preme Court and the Chancellor. The point
of difTerenco bet wen the two courts related to
the effect which a noncompliance by the cred-
itor with the request of the surety to prosecute
the principal, would have upon the liability of
the surety; the Chancellor holding that in order
to discharge the surety there must be some new
agreement between the debtor and creditor,
varying the contract by which the surety orig-
inally became bound. The court of Errors,
on' an appeal (17 Johns. 384) from the decree
of the Cbaneellor, in the case of King v. Bald-
I, may be considered in ~ '
of the Supreme Court in Paine v. PacUar
We are under no necessity, however, of ex
pressing any opinion upon the point of dilTer-
ence between those courts. That point has no
bearing upon the question now before this
court. The case of The Bank of Steubenville v.
Administrators of Cairol. b Hammond. 20T, in
the Supreme Court of Ohio, baa been relied
upon to support the pleadings and defense sel
up in this case. But that case diders from thc
present, essentially, in the main point. No
oyer of the bond is there spread upon the
rseord, so that it does not appear upon the face
of the bond that the defendant signed as prin-
les*] cipal. The plM allied 'that the de-
ia«
d been employed to perlect t1
ISDd tor nis prlnclpHl. la ll
fendant signed aa snie^, and this the demurrer
admits; and the fact of surety being assuniHJ
as admitted, the court only decided that if an}
chanee be made between the creditor and tli«
principal to the prejudice of the surety, that it
discharges the surety, and that this deleue
may be set up at law as well as in equity.
That such was the ground on which this cau
stood is evident from the manner in which thr
?iieation is put by the counsel to the court
he plea, say they, alleges that the detendinl
signed and sealed the obligation aa surety, and
not as principal; and this is admitted by tlM
demurrer: and therefore the inquiry is present-
ed, free from all embarrassment, viz.: Is the
surety discharged by the creditors giving the
princiflal further credit or time of payment)
And this would seem to be the light in which
the case was viewed by the court. And thii
conclusion is strengthened by the circumsUnce
that the authorities referred to in support of
the decision go to show that a court of law oi
well as a court of equity cun alTord relief to Iks
surety when the tacts upon which such relief
reuts are properly before the court. And in
this view of the case, it is not at vari.-ince with 1
the admitted rule in courts of law. But thii
does not meet the difficulty in the present esse. j
The fact of the defendant's being surety is not !
only not admitted, but it is alleged that he is
estopped from setting it up by his own admii-
sion in his obligation that he is principal. And
we are not aware of any case giving counte-
nance to such a defense at law, under such cir-
cumstances.
The fourth plea is admitted to be bad, and
the objections to the third and fifth are sub-
stantially the same aa to the second and sixtlt
They attempt to set up that the defendsnt wss
only surety in the obligation. But this defense
is equally precluded here by the estoppel, as in
the other pleas.
'BURTIS RINGO, James Elliott. John [*M*
Collins, John Elliott, James Lawreneo,
Thomas Watson, Athey Rowe, George Musa,
Sen., and George Muse, Jun., Appellants,
CHARLES BTNNS and Elijah Hixoa, Stephen
Hixon, Noah Bixon, John Hixon, William
Hixon. and Timothy Hixon, Ileire of Timothy
Hixon, Deceased.
Agent cannot use defect in title of principal to
bis own advantage — tenants under such
An agent, who bad been emi
NOTB. — That agent or trustee cannot purchase
trust propertj Or properl} coDBded to hli care!
enipIuj'Fil to buy tor sDottier cannot buy tor blm-
sell: pureltase b; CDures to prlDclpsl. see DOtca (•
3 L. cd. U. &. 181 : A L. ed. U. S. 091.
Fetecs !*■
IB38
Rinoo n AL. T. Binnb rt au
MMelt. A* •ppllemtlom wm mad* ta the LwIb-
UlDre of Kentuckj by tbc boMen ol tbe Inperfect
lllit to Bupplj Itf detccU, wlilch wbb done by H law
ilwclaUr eDucIcd for tbnt purnosf. 01 tbLa pto
rt«dlDc the ageot «-■■ Informed, aod when It vaa
•tiled to blm Ibat His conduct lo tbe Injui? of blM
priDclpal mlebt be attended wllb uppU'.^HBnt con-
ttquencca to nlmself. he dcelsrfd la wrlllog. uadfr
Bli hand, la tbe pr«>eDce at two witoesiiea. that be
dluTOVMl an iDteDIIOD to Interfere wttb tbe title
at bli principal, and aiislfined tbc title be had ac-
auired to him, that tbe same mlgbt be cr
irant. At Ibe same tlmr -^ ■-■ *
In violation of tbia ti
s nald f 100 tor big
._■ flled In the Circuit Court of Kentucky to
coDpel blm to convey the lecal title tbiiB iirgulred
U thiwe who held the ecjultable title, under tbe act
ef tbc LtslilBluce of tbat Stale.
r tbe I^Elilalute Into a right
a nulllly. The Ir^ar title of
KTantlnK
dlrectlDi
Tbi
eotnplal
In It wblch could not be dereited by
n Ven^ dK"T??ra°defect In (he title of :
[>al to land be cannot mlRuae It to acquire
or himaelf. and If be does, he will be held
tee holding for hli principal,
tenants lu poB.esslon af^land, of oblcb I
of t)
; parties to tbe proceeding t>y an
anended bill : the original bill having charRed that
tbp land had been occupied by them for ten or
twelve tears, as tbe teannta of tbe holder of the
legal title. They were not charged wllb fraud, nor
vere they placed la any euch relation to the laoil.
No caae eiUtn. aa to tbe Icnantii. for tbe Ibtctrer*
ence ot a conrt of equity, wbetbcr they occupied
the lands a* the tenants ot the holders of the lexnl
title. BB declared In tbe orlglbal bill, or rb teuanla
In nnaseflslop under another ; the complainants are
luppoBcd to have tbelr repiedy at law for the
reeorery of tbe land, antll they
■how that the P ->-■--—
■loD. Id cootra ., -,-
between them and tbe complalaaDti,
cbarg
f tb« United SUtes for tfaa Di
tri«t of Kentuck;.
Th« facts, as stated fn the opiDion of the
Mart, were the following;
The object of this appeal !• to reverse the
decree of the Circuit Court, by which the ap-
pellants were ordered to eonvej to the appellees,
by deeds of release, with coTenautB of war-
ranty against themselves and their heirs, and
those claiming under them, all the right, title,
interest and claim which they respectively have
lo lands emhraeed hy a patent of two thousand
acres to Chartea Binns, Jun., and the heirs of
Timothy Hlxon, and their heirs, dated the 16th
of October, 1834.
It appears by the proofs In the cause that a
•nrrey of two thousand acres was made on In-
dian Creek, alias Fox's Run, or Maaon Run,
Henry County, Kentucky, on the 20th of N»
vember, I7BT, for John Alexander Binns and
Charla Binna, by virtue of an entry made the
6th of August, 1783. The original surrey, by
accident, or from tbe negligence of an agent of
tlie Binnses, to whom it had been sent for such
pnrpose, had never been registered and was lost,
bnt a copy of it was preserved which determined
wlUi BXkctness the locality of the land. It was
ksoim aa Binna'a land in the neighborhood,
aid bj tkoaa owning tbs contiguous lands.
Id to Hmothy Hixon, the ancestor of
the appellee. Charles Binns, In August,
i?Lu, appointed John Llttlejohn his agent and
attorney, with a power of subatitution, to at-
tend to this land and his other land in Ken-
tucky, and Littleiohn associated with himeelF
in such agency Burtis Ringo. Rjngo, during
the agency, and particularly whiUt acting in
ponci rt with Littlejohn and William P. Rogers
to procure a division of titn land between the
appellees, called upon R'jgers to ascertain
when a division of Ibe land i^ould be decreed.
Rogers told him there was a difficulty in the
way, as the survey had not been returned to the
register's office, and that no patent had ever
been issued for the land. He received the in-
formation in May or June, 1822. On the 10th
of July following he wrote to Littlejnhn, and
after acknowledging that he liad been requested
to-Mssist in dividing "Bin ns's land," he states
that he had been at Frankfort, had made search
for Binns's patent, but found the return of tbe
survey had not been made, and that no grant
had been iisued.
He further says he supposed It would be un-
necessary to be at any further trouble about it
until Mr. Binna had been heard from ; aa be
had written to him if he had a patent to send
it on as soon aa possible *to Littlejohn [*1T1
or liitnself, and he requests Littlejohn to send
it to him if Littlejohn should receive it. On
the anme day he wrote a letter to Binns, in
which he says, having been requested by Lit-
tlejohn to assist him in dividing your lands be-
tween you and Mr. Ilixon's helrv, he had been
in the re^rister's olGce, and finding that the re-
lease of the survey had not been made, and
that a grant had not been issued, he itdvises
Binna to be at no further expense about it, as It
appears no grant can have issued; and that
Binns would be wrong if he thought there was
no better right on the land. On the 8th of
July, two days before he had written to Liltte-
john and Binns, Ringo had taken from the reg-
ister's alfice warrants for Ave hundred acres
and one hundred acres of land, and caused en-
tries and surveys to be marie upon six hundred
acres of the original two thousand acre survey,
which had been made for John Alexander
Binns and Charles Binns. The surveys were
made on the 20th of July, and returned to th«
register's alBce in his own name on the 24th of
August. When charged by Littlejohn with
the fraudulent attempt upon the rights of those
principals, and told that application had been
made to the Legislature of Kentucky to author-
ize a patent to be issued upon the original sur-
vey on behalf of the Binnses, and that his con-
duct was known to a committee of the Legisla-
ture and might be attended with unpleasant
consequeDces to himself, Rinj;o, to avoid them
and to prevent a most notorious disclosure of
his fraud, expressed in writing his willingness
that such an act should be passed by the Leg-
islature as tbe complainant had applied for,
and gave to Littlejohn, under his hand smd
seal, a paper, of which the following is a copy;
"Whereas, it has been represented that 1,
ftl
SupbEmk Oouirr Av tue UriirlCD Scatco.
of rix hundred Acrn of iMid, u.id to belooff to
John AIex«niler Uinni anii Charlen. o( Vir-
ginia, and that tlie said John A. Binns had
•old to Timothj Hixon, now deceased, and
that I had extended the surTSfa for my own
bene/lt, though an agent under Jnhn Littlejolu)
for said Binns; I hereby diMVOW »uch inten-
tion, and do by these presenta assign over all
my right, title and interest in the said extends
and BurveyB to Charles Binns and the said
heirs of Timothy Hixoo, to be carried into a
!;rant at their proper expense; hereby reooune-
ng all claim by virtue of taid extends and
■urveyB. and assigning them to the said Binns
and Hixon's heirs. As witness my hand and
•eal this 4th day of November, 1822.
"Burtis Bingo, [l. B.J
S72*] "'Signed and acknowledged in the
presence of us, Daniel Feeblen, John Little-
Before this Instrument was executed by Rin-
50, Littlejohn agreed to give him one hundred
ollarg to reimburse the amount he had ex-
pended in procuring the warrants and making
the surveys ol the six hundred acres; paid him
fifty dollars in Commonwealth paper, and gave
htm a note of hand for fittj dotlara.
The Legislature of Kentucky acted upon the
petition of the complainantaj passed an Act on
the 10th of December, 1822, recognising the
survey of the 20th of November, 1787, made
on the entries of the Bth of August, 17B3; and
the same was carried into a grant in favor of
Charles Binns, Jun., and the heirt of Timothy
Hixon and their heirs, on the 16tb of October.
1824. In the mean time Ringa -fn violation of
bis transfer of the entries and survey for six
hundred acres to Binns and the heirs of BiKon,
took out a patent in his own name. The afore-
going facts were charged in the bill of the
ooraplainants ; were denied by Ringo in his
answers, but were established by proof at tbe
hearing. In the origiml bill Kingo was the
only defendant; hut the complainants charge
in )t that the land had been occupied for ten or
twelve years by tenants of Binns. By an
amended bill, the tenants, James Elliott, John
Collins, John Elliott, James Lawrence, Thomas
Watson, Athey Rowe, George Muse, Sen., and
George Muse, Jun., were made parties, and
stated to be tenants in poaaession of the land
claimed by the defendant; and the complain-
ants make the mme prayer against the tenants
M tliey had against Ringo in the original bill.
liifl Circuit Court made the following de-
The court being now sufHeiently advised of
and concerning tne premises, doth order and
decree that the defendants, Burtis Ringo. James
Elliott, John Collins, John Elliott. James Law-
rence, Thomas Watson, Athey Rowe, George
Muse, Sen., and George Muse, Jun., do, on or
before the sixth day of the next term, convey
to the complainants, by deeds of release, with
eovenanta of warranty a^inst themselves and
their heirs, and those claiming under them, all
the right, title. Interest and claim, which they
respectively have to the lands embraced by thp
two thousand acre patent to Charles Binns,
Jun., dated 16th of October, 1824; and the
writ of habcii facias posseasionev is awarded
the complainants against the said defendants
^■d it u further ordered and decreed that the
defendant* pay to the eomplaiiuinU thsir enti
herein expended.
The defendants appealed to this court.
'The case was argued by Mr. French [*S7I
and Mr. Underwood for the appellants, and I7
Mr. Semmei and Mr. Coxe for the appellees.
The counsel for the appellants preseuted the
following points for the consideration of Um
The counsel for the appellees contend thi
decree is erroneous, and niuat be reversed for
the following reasons, to wit;
1. The decree has passed against John Col-
lins, who is no party to the record.
2. The court has no power to decree tenants
land. ({rowiiiR out of the asserted title of the
appellees. Tlie appellees have shown neither.
3. The circumataucrs under which Ringo
executed his relinquishment were sui-h that tbs
contract cannot be speci&cally executed upon
him by the Chancellor.
1st. Because there was no oonsideration paid
or agreed to be paid Bingo for his claim. Ths
JlOO was to indemnify him tor expenses in pro-
curing his own claim, and not as a consiilera-
tion for the purchasing it; and for the want of
a valuable consideration the Chancellor will
not decree a specific expcutiun of a contract
Ed. If the $100 shall be considered as pay-
ment for his claim, it is wholly inadcquute, and
the inadequacy of price is an insuperable bar-
rier to a spccitie execution.
3d. The deed was unfairly and fraudulently
obtained by Littlejobn, anil for that fraud the
Chancellor will refuse specific execution ol tUf
5. There is no proof that Elijah Hixon end
others, claiming to be tlie heirs of Timothy
Hixon, deceased, arc his children. Such proof
is indispensable; and, for want of it, it does
not appear they have any interest whatever in
the land. They sue as heirs, and not as dev
isees, and the allegata et probata must eorru-
McBsrs. French and Underwood contended
that the equity relied 00 by the appellees ia
twofold.
1. They relied upon an entry for two thou-
sand acres of land, carried into grant, in purau-
anre of a special act of the General Asseiubly
of Kentucky.
2, They relied upon a contract by which they
contend that Ringo bound himself to tranafer
and assign to them his plats and certificates of
•survey, and thereafter fraudulently [*2 7 4
I'efused to comply, and obtained patent* for thv
land in his awn pome.
If both these grounds of equity are unten
able, the decree must be reversed and the hill
ilismiased.
To constitute a valid entij it must call for
objects notorious at its date; and it must be so
special in its particular location, that othftra
might appropriate the adjacent vacant and un-
appropriated lands with safety. This propo-
sition is established by an unbroken chain of
.idjudi cations in Virginia and Kcntuclqr, ex-
lendioK fiom the pa«suge of the Virginia Act
of 177e, usually called the land law, down to
the present time.
Now, there is no proof in thi* cause shovrinf
Peters X O
18M
Sjsqo et al. 1
ttt iMil«ri«t7 and apeciAUr of tba entrj of the
■ppellces. Thev cannot tLcrefora lucceed on
tb>t ground of equity.
Tbe appellees cannot derive any equity tram
the patent, upon tbe entry for two thousauU
acre*; because, before tlie enianntion of the
Iiateat, the land had been appropriated by
ItingD. He bsd vested rights, which could not
be devested by a special act of the LeRisIature
of Kentucky. The entry had become void by
the failure to hive it suiveyed and carried into
pant, aa pn'seribed by law; and the Und
eoTsred by it (if indeed it covered tlie land now
in controversv, which is not proven nor con-
ceded) was subject to appropriation by Ken-
tneky land-ofllee treasury wiirr.inta. Riiigo did
tntionally revive the equity, if
Uted, under the en;fy (or two thoufland a^res,
•o at to interfere with the ri<;!its of Hinga pre-
Tiously vested. Such a revival of a dead equi-
ty would violate the rij-hts which Uiiigo de-
rived under his contract willi the government.
60 far, therefore, as tlie decree rests for sup-
port upon the adverse title sft up in the bill,
it cannot be sustained.
, » th
tbe decree
ease presents itself as one for a epecihc execu-
tion of a contract. Applications of this kind
■re presented to tbe suund discretion of tbe
Chancellor. In this caae he ought to leave the
parties to their legal reineilica, because, by de-
priving Ringo of his title, he will lose property
of the value of {2,000 and more, without re-
ceiving therefor one cent It is true that Rinj^
received $60 in notes on the Bank of the Com-
monwealth, and the note of Littlejohn tor SSO
Bore. But these sums were agreed to be paid
aa a remuneration for Ringo's trouble and ex-
pense in locating, Rurve>ing and purchasing his
■ lft*]l>nd warrants, under the 'idea that he
acted IB' tbe business as agent for the appellees,
and not a* an equivalciit or as a conBideration
for the land, regarding it aa a sale and pur-
cfaaae. The whole transaction, aa manifested
by tbe record, exhibits nothing like the ordi-
narj bargain and sale of land. But it that were
lb* caae, the court should not interfere and
eompcl & BpeciSc execution because of the io-
adei^uacjr 01 tbe price.
Kingo waa induced to execute the instrument,
promiaing to aaaign hjs plata and certificates of
nrrer, <hi account of the alarm excited in his
mind bj the i«presentationt of Littlejohn that
tbe Le^slature of Kentucky would institute
proceedings to remove Ringo from ollice. An
obligation thus obtained should never l>e
•pecifically enforced bv the Chancellor.
It w«« not fraudulent in Ringo to appro-
priate the land, upon ascertaining that the ap-
pellees had no title. It be obtained that knowl-
•dee while he was acting as agent for tbe ap
pelleea, there is no principle □( equity which
ean preclude him from making a profit by the
knowledge he bad acquired, or which can con-
vert Ringo into a trustee, holding the legal title
for tbe use of tbe appellees. It mi^'ht have
been ■ friendly or benevolent act on the part ot
Bingo, on ascertaining that the appellees had
a» tltlv, and that the land was vacant, to eom-
rannicat* the tact ttt the appelleaa, and advise
• L-Bd.
. Bnasu ei al. E74
them to purchase land warrants and locate
them on the land. But his failure to do so,
and his proceeding to appi'opriate the land for
himself, cannot amount to a tmud on the ap-
pellees. If it does, he is guilty of it mereiy
because he did not voluntarily comniuiiicHte hit
knowledge of facts, and give the advantage of
the speculation to the appelleesi when he was
not emplo>ed by them as agent for any such
purpoK. and when lie waa under no I^al obli-
gation to give them the benelit of his discov-
eries. As well might it be conteuded that the
common carrier, who it taking wheat to mar-
ket, is legally bound to make known to the
owner all the facts which he may have k'amed,
and which have produced a sudden advance of
fifty per cent, on the price of the article, aa
to contend that Ringo, tncrely because he had a
special agency in dividing the land, was bound,
in consequence, to inform the appellees wliat
discoveries he had made as to the title. If tbe
carrier purchases tbe wheat, permitting tbe
owner to remain ignorant oE the facts which
have operated to enhance the price, no court
can or would deprive him of the profits of tbe
speculation. Ringo's ca^e descries more favor,
because the appellees had no interest whatever
in the land which Ringo appropriated to hini'
self. Thej supposed they had an interest and
title to it; but 'this was a mistake. [*2Te
The land was vacant, and, like nil vacant land,
liable to be appropriated by tlioae who might
discover its situation ; and in this reaj>cct the
appellees did not occupy a more favorable posi-
tion than Ringo.
There are two grounds upon which the de-
cree must be reversed; unconnected with tbe
foregoing considerations.
1. There is no proof that tbe appellees are
the children of Timothy Mixon, deceased. They
sue aa his heirs. They must prove tbe facts
upon which the court, as matter of law, can
pronounce them heirs. There is no such proof.
A witness cannot prove, in totiilem verbis, that
A is the heir of B: he must prove the degree of
consanguinity; he must state the facts, and
leave the deduction to the court. The will
which showt that the appellees are devisees of
Timothy Uixon, cannot sustain tbe bill which
alleges they were heirs. The all^iata and pro-
bata must correspond.
2. The record shows that the defendants, ex-
cept Ringo, were the tenants of the appclliies,
entering upon the land under thera in virtue of
leaees. The appellees cannot maintain a bill
against their own tenants, to compel them to
surrender their title and posserixion. The ten-
ants are estopped to deny the title under which
they entered, and if they held over, tbe remedy
of the appellees was complete at law.
Mr. Eemmes, for the appellees.
The allegatioui of the bill are, without ex-
ception, sustained by tbe evidence died in th«
cause. The answer of Ringo is rudis et indi-
gesta moles of false assertions, persona] vituper-
ation, and untenable positions. Exceptions
should have been Hied in the court Wlow, the
answer referred to a master, and the on'ensive
matter nt rick en out. The evidence falsi flea
every allegation in the answer. It is even
impaired in credit by the depusitions taken to
support it; they ere merely negative, tbe wit-
nesses "knowing nothing" of the material facta,
43S
Suniiu CouKi OF TBI UMTm STAtn.
UM
Th« eoiuiBel fof the appellantB contended
th4t as Ringa had procured the elder grknt,
under whii^li the legal title passed, bia ctftim
w&B superior in law and equity to that of the
■ppellepB. The reply to this argument ia to be
found in all the decisions of the States of Vir-
ginia and Kentucky on the aubject, and of thia
court in G Crancli. The caae of M'Clung v.
Eugbea, S Rand. 4G3, was a case In point. It
waa there held and declared to be the aetcled
law drawn from all the deciaiona that a party
having claima to lands entered and surveyed by
another, ahould bave recourse to the statutory
Z77*] remedy of 'caveat to prevent the emana-
tion of a patent; that he is not to be sustained
in a court of equity on such grounds aa might
have been used on the trial of the caveat, but
that upon a ease auggcsting or proving that he
was prevented by fraud or accident from prose-
cuting his caveat, equity nill take Jurisdiction
of the case and grant relief. The eSect of an
entry is to give a party an equitable interest in
the land located, to be clothed with the legal
title only on the issuing of a grant or patent.
Two partiea entering the aame land have each
an equity, and if a subsequent locator ahould
obtain a patent first, another maxim of equity
will apply, that where the equity ia equal, the
law shall prevail, and his title to the lands is
perfected; all equities being equal without re-
gard to priority of time. The inequality pro-
ceeds from fraud or culpable laches; and to
deprive a subsequent locator with the Itigal
title of the benefit of this rule, it must appear
that he was guilty of some act or lachea, mak-
ing it unconscientious in him to insist on his
title.
Now, what is auch fraud I A has a prior en-
try and a subsequent patent. B has a subse-
quent entry but a prior patent. A's entry is a
record; of this B must take notice; if not, his
Ignorance will nob excuse him; if with this
knowledge be locates the land entered by A, it
is a fraud; and though he obtains a le^al title
by patent, his fraud will postpone him, and
the prior equity will prevail, ft Rand- 4TS,
476, 4SB. 4B», S04.
These principles were recogniied by thla
court in Bodley v. Taylor, 6 Cranch, 191, and
in Taylor *. Brown. 5 Cranch, 234. it waa de-
cided that a subsequent entry, even without
fraud, must be postponed to a prior — and al-
though the subsequent locat<ir produced a prior
Does the present case come within the rule
here laid downT It does, with the additional
circumstance that the subsequent locator here
atood in a fiduciary relation to the prior, and
made u% of his situation to procure a knowl-
edge of his principal's defect of legal title. If
RIngo bad a better title, his not proceeding to
caveat the grant of the appellees is evidence of
bis fraud under the circumstances of the case.
The appellants contend that the decree must
be reversed :
1. Because it has passed against John Col-
lins, who ia no party to the record. This is
not true, for the subpoena waa served on him,
as appears by the mnralial's return; and if true.
would not vitiate the decree as to the other
appellants.
2. That the tenants on the land (who were
STS'l made lUfendanta by 'ao amendad bUl)
««(
are mere tenanta in poaaeasioii; and tha deova
is for them to convey the legal title, i. a., that
a decree for the. legal title will not pass tba
possessory right That a court of chancery
has no jurisdiction over tenants in posite^aioB,
but that the remedy ia at law. The answer to
this position la that the bill does not name
them, and aver that they are tenants in posses-
sion. They are made defendants, to do eoa-
plete justice between all the parties in intereaU
But their own answer to the amended bill con-
cludes them on this head. They allege that
they do not claim either under the appelleu
or the appellant Rings, but that the legal title
is in them, and attempt to prove it. They fail;
the cause quoad their legal title was before the
court; and a baiter title being proved in the
appellees, warranted the court in a decree to
convey.
3. That the relinquisliment of Ringo waa
fraudulently procured. There is no proof of
this; and throwing it out of the case, on Um
principles before established, we hold the bet-
ter title.
4. The answer deniea that the complainant*,
Eixons, are the heirs of Timothy UixoD, and
that t lie re being only one witness in contradic-
tion on this point, the answer is conclusive of
the fact. The reply ia, that to give an anawar
in chancery, the force of evidence, per ae, so
aa only to be rebutted by two witnesses or one
witneaa, and corroborating circuinatancea; tlie
answer, pro re nata. must be reaponsive to tbc
bi!l, or in answer to ymie interrogatory in the
bill. Affirmative allegations in an answer arc
in this reepect on no better footing than thoae
in a bill. On this point it is not responsive. If
it were, the title of^the Hixons and their identi-
ty are dearly made out by the evidence. Anil
moreover, if it were responsive, and not posi-
tively contradicted by two witnes-ies, the fact,
if important, could not avail, inasmuch an ttv
answer, being deprived of credibility in other
respects is so In this; for falsum in uno falmma
In omnibus.
5. It is contended on behalf of the tenanta
in possession that having occupied tbe landa
more than twenty years, the act of limitationa
bars our title. But, 1. The act of liniiUtiona
can only be taken advantage of by pleading
it; that baa not been done, i. Tbej must be
looked on in tbe light of trustees for ua, tbc
entry in the aurveyor'a hook being notice of
our claim. S Rand. 476- The implied trust
obviates the bar of the statute. 3. The fraud,
the mala fides, inferred from this notice, nill
prevent the act from attaching. But, 4. TheJ
contend that the appellees have no title, but tJiat
the title is In them by virtue of this posseasion.
If the appellees 'have no title, tbe lands t'alfl
are vacant, and they are pleading the atatuta
against the State. Wild landa can only be ap-
propriated by tbe regular mode of warrant,
entry, survey and grant. Possession givca DO
title as against the Stat«.
These tenants claim by purchase from Chria^.
They do not show the derivations of bis title;
set out no deed from Christy to them, nor
state the purchase money or consideration of
the conveyance. The evidence proves that at
one time they professed to hold under tha
appellees, at another under tbe appellant
lUngo, and iww only alaim the l^al titl^
UU Rlll«0 BT AL. 1
Iliifr elklm to oomp(fn»atlon tor inipravements
on ADotber'a land cannot, on the general prin-
dpiea of Uw, b« allowed.
As to the form of the dtunt, it i* preciieljp
M in tb» case cited from 5 Cruich.
Hr. Justice Wtjme delitered the opinion of
the court.
Aft«r stating the case he proceeded:
It is contended that the decree is erroneous
and should be reversed. In behalf of Ringo
It is BT^ed that he has a prior legal title, uiiac-
eompAnied by any equity of the comptainaata.
Tbe legal Utie must rest upon entry, snrvey,
registry and patent; and It will be admitted
that a legal title cannot be in anyone until a
patent baa been issuedi and farther, that all of
those requiremeuta to make a complete title,
shall have been done without fraud, to give to
a patentee a valid title. If, then, In the course
of^carrying his surveys into grant, and before
■ patent upon them was Issued to him, Rinni,
under a notice to caveat tbe appliMtion of the
eomplainants to the General Asaembly of Ken'
tucky, for leave to bring in a bill to authorise
a copy of these original surveys for two thou-
sand aeres to be received and registeied, that a
Etent might be issued to them; acknowledged
>ir equity to be superior to his immature
legal rights, and expressed his willingness that
it sliould be affirmed by legislative enactment;
it being done by the Legislature, its act nul-
lified his surveys, and the latter could not
be afterwards any foundation for a patent of
the same land to himself. The complainants'
entry and survey were raised by the Legis-
lature into a right to the exclusion of every
right of Ringo; and any patent afterwards Ii<
saed to bim, unon his entries and surveys, Is a
nallity. Tbe legal title of the eomplainants
does not rest upon the statute tor granting
lands, but upon sn act of tlie Legislature di-
recting au unregistered survey, inoperative by
280*] the lapse of 'time to be roistered and a
patent to be issued upon It. when this act
was passed in favor of the eomplainants, the
land covered by the survey, under the ent^ of
tbe 5tb of August, 1783, become excepted Iroro
the moss of ungranted vacant land ; and the
eomplainants acquired rights in it which could
aot be defeated by a patent upon Ringo'i entry
and survey.
This view of tbe cose makes it unnecessary
for us to consider the objeotions to the decree
growing out of Ringo's transfer of his entries
and surveys to the complainanta, namely, that
there was no consideration paid, as agreed to be
paid, for his claim; it there was, that it was
tnadequate, and that It was obtained by fraud-
In truth, at the time that paper was executed,
he had no legal or equltattle interest in the
land to convey and be transferred, no more
than he was aonse3*ntiously bound to do; as
be confessed and had so declared to others
when be was making his surveys, that they
were not mode with an intenUon to appropriata
them to himself, but to enable him to make
a division of the land between tbe eomplain-
ants.
But how forcibly doea tbe «quity o( the com-
plaiBanta prevail over any claim of Ringo,
when tbe latter in riewod H tlwir oeenl at the
. Bihrs b al i7t
time he made his entry and surras npon tbe
land, which he had undertaken to assist in di-
viding between themf It is said that an an-
registered survey gave to them no equitable
right in the land, and that Ringo being only
an agent for the special purpose of dividing
the land, he could rightfully enter and survey
it tor himself when he ascertained the delect
in the title of the complainants. The propo-
sition of a want of equitable right in the eom-
plainants Is true as against the State, tor the
time within which the survey should have
been returned and registered before a grant
could issue hod expired, and the land had
fallen into the general mass of ungranted land
liable to entry, survey and grant upon treasury
Und-offlce warrants. But the mistake in tbe
argument is in applying the rights of the State
in the land to a right in Ringo, obtained when
he was admitting to tbe complainants his agency
for them, and making acknowledgment ot
tbeir title to others, to enable him more sue-
ceosfully to secure by his artifices a title in tbe
land to himself. On the same day Ringo
wrote two letters, one to Littlejohn and the
other to Charles Binns. In both he acknowl-
edges himself to be the agent of the complain-
ants; but, by the tenor of his letters to Binns.
he eonoeals from and misrepresents to LJttle-
john, and under the pretense of a friendly
wish to save Binns from unneeessanr ex-
Eense, 'be tells him tbat as no survey L'SBI
ad been made and no grant had existed, that
he need not go to any expense about it. aa it
appears no grant can now issue; that he will
be wrong to think there was no better right to
the land. These tetters were written two days
after he hod commenced measures to secure
the land for himself. The equity of the com-
plainants, therefore, over any right of Ringo-
does not arise from the former having had at
this time any legal title to the land, but from.
Ringo's having practiced an artifice upon the
complainants whilst he was their agent, to
prevent them from curing the detect In their
title, that be might deprive them of property
which at the same time he acknowledged to
be theirs. He was guilty of deceitful prac-
tices and artful devices, contrary to the plain
rules of common honesty and fair dealing be-
tween men; and could not acquire a title to
the land, valid against the equity which be
had acknowledged to be in the complainants.
It is unnecessary to pursue this point further.
The decree of the court directing Ringo to
convey must be affirmed; and tbe nropositio:
laid down by this court is, thst if an agen
discovers a defect in the title of his principal.
to land, he cannot misuse it to aequlrs a title
tor himself, and It he does, that he will be held
OS a trustee holding for his principal.
In regard to the tenants, the deerea of the
court must be reversed. They were made par.
ties by on amended bill. In the original bill
the complainants diarge that the land had been
occupied for ten or twelve years by tenants of
Binns, and In the amended bill they are said to
be tenants in possession ot tbe land claimed by
the defendant Nor are they charged with
fraud in either. It is not necessary, therefora,
to consider the grounds urged in the argument
of counsel for a reversal of the decree againat
the tenants, if a point arises upon the pleodlnn
4*i
Ul
Scnnu CoDBT or the Usmo Statis.
deeiiin of their earn. Not having been ebarged
with frftud on the bill, or placed bf it in any
such relation to the land orto the comptainaDts.
no ease exiati for the interierence of a court of
equity. Whether thej occupied the lauds ai
tlie tenanti of Binns, or ut declared in the
original bill, or as tenant! in posaeaaion under
another; the complainants are to be luppoaed
to have their remedy at law for the recovery of
the land until they abali charge and ihon that
the tenants obtained, and retain poBaeaaioD, in
contravention of some equity subsisting be-
tween them and the eomplainants. The tenants
are not lo charged, nor is there anything in the
record from which such a conclusion can be
drawn. They are merely sbowo to be in pos-
lessjon of parts of th« original survey of two
S82*] thousand acres, 'which was reaurveyed
by Ringo and it is probable tbey hold under
him I but there is no proof tliat tney were par-
ties to the fraud which he practioed upon the
oomplainanta. This point does not appear to
have been made in the hearing in the court be-
low, nor was it urged in argument in tliis court,
but it is obvious in the pleadings, and must be
noticed by us; it is sufEcient for the reversal of
so much of the decree as relates to the tenants,
and it will be directed with permission to the
complainanta to amend their bill, if tbey shall
please to do so.
It was also urged that the decree should be
reversed, on the grounds that tbere was no proof
showing the complainants, the Hiions. to be
the heira of Timothy Hixon, and that the will of
Timothy Hixon showed that the complainants
ahonld have claimed as devisees, and not as
The decree being reversed as to the tenants,
neither point is material to tbem, and these ob-
jections cannot prevail against the affirmation
of the decree as to Ringo, beotuse the allega-
tioD in the bill of the complainants Ihat the
Hixons were the heirs of Timothy Hizon, is
not denied in the defendant's answers, and was
therefore not a point put in issue by the plead-
ings. Besides, the tact not having been denied
by the answer, there are ample and frequent
proofs in the record oF Ringo's admission that
they were tlic heirs of Timothy Hixon, and of
hb acknowledgments of their equitable right
in the land in that character.
This cause came on to be heard on the tran-
■erlpt of the record from the Circuit Court of
the United States for the District of Kentucky,
and was argued by counsel ; on conaideration
whereof, it is ordered, adjudged and decreed
by this court, that so much of the ilecrcc of the
said Circuit Court in this cause as directs the
defendant Ringo to convey to the complainants
be, and tbe same is hereby afflrmed with costs,
and that so much of the said decree as directs
the tenants to convey to the complainiLnts be,
and the same is hereby reversed; and it is
further ordered and decreed by thii court
that this cause be, and the same is hereby re-
manded to the said Circuit Court, with di-
rections for further proceedings to be had
therein, in conformity to the opinion and de-
«ree of this court, and as to law Knd justice
nay appertain.
4I«
*M. B. HAYDEL, Plaintiff In Brror, ['asi
FRANCOIS OIROD.
i[ code ol Loulsli
a time or dels;
ed by tbe proper court on petition . . ._ ._ . .
Is unable to pa; bli debts, etc.. but aotlce of the
proceeding muit be given to eieri creditor, as
whom notice could be served, or he !■ not bound dj
e affected bf tbem.
The defendant in error instituted a anit in
the District Court on a promissory note, and
the defendant having applied, after the suit
was brousbt, to a court of Louisiana for the
beneRt of the insolvent law of that State,
pleaded a respite obtained in thoae proceedings
against his creditors.
In the proceedings of the Court of LonU-
ana in tbe petition of the plaintitT in error, it
nowhere appears that any notice of the aame
was given to Francois Girod ; on this ground
the District Court decided against tlie plea, and
gave judgment for the plaiutiir in that court.
The defendant proseciiLpd this writ of error.
The case was argued by Mr. Key for the de-
fendant in error. No counsel appeared for the
plaintilT.
Mr. Key contended:
That the plaintilT below waa no party to
these proceedings, nor in any way alfected by
them, and that the proceedings were wholly ir-
regular, and did not entitle the defenilant. in
the District Court, to a respite against any of
his creditors.
Mr. Key referred to the civil code of T.«ui*i-
ana (art. 3061), and otiivrs, wliich require that
notice shall be given to the creditors of a peti-
tioner, and which declare that no creditor,
other than those to whom such notice had l>eea
given, should be alTeutcd by tlie same.
*He also cited Brcedlove and Robeson [*2S4
V. Nicolet and Sips. T Peters, 434, in which waa
decided the question presented in this case. Be
claimed ten per cent, damages, as be contended
the writ of error had been sued out tor delay
only: tbe law of tbe case having been clearly
settled in the case cited.
Mr. Justice VLcan delivered the oplnira ol
the court:
This case was brought before this court t^ a
writ of Error to reverse the judgment of the
District Court for the Eastern District of Lioui-
The plaintiff, in the District Court Sled hia
petition, representing that Uaydel, the defend-
ant, was indebted to him in the sum of $2,189,
being the amount of a certain promiasory note
drawn the I7th of July, 1S33. by J. J. Hay-
del, payable in all the month of February,
1834, to the order el U. Belfort Haydel, iy
Peters 1«.
ISM
DAns T. Bkadch.
Tbftt
whom tt wki Indorsed, to the plaintiff,
when the note becanie due, demaiid wk
tod notice given, ite.
On the lUtli of M&7, 1834, the defendant
Ha]-<!el filed an answer, in whieli he statet, for
exception to the petition, tbat bv % decree of
the First District Court of the First Judicial
District of Louiaians, all proceedings Against
hti property and person have been stayed upon
the application of the respondent for a respite,
under the provisions of the lav of the Stale of
Louisiana.
"That the note or instrument upon wbkh
he is sued being made in said State and paya-
ble there, the said Girod having before, and
since the making of said note, resided within
the said State, is bound hj the laws thereof, and
cannot, because of the decree aforesaid, fiii tiin
prosecute his said suit in this court, until the
crediton of your respondent ahall have refuaed
the respite demanded hr him. or until the period
thereof, should the said creditors accord a na-
pte, haa expired."
Aftcrvrard the defendant apnlied tor leaTe to
lie a supplement:!! answer, whieb was refttsed
Bttder the rule of the court.
And on the 14th of January, 183S. a judgment
*as entered for the plaintiff.
By the civil code ot Louisiana, it is declared
(art. 3051), "a respite is an act bv which a
debtor who is unable to satisfy his debts at the
Bwment, transacts with bis creditor*, asd ob-
tains from them time or delay for the payment
of the sums which he owes tbem."
«85»J "And in Art. 3C51-. "but in order that
a reapit« may produce that effect, it is neces-
*ry:
*1. That the debtor should deposit in the I
ofke of the clerk of the court of his domi "
to whom he presents his petition for catling bis
erediloTB, a true and exact schedule,
by him, of all his movalile and Immovable
property, as well as of hit debts.
"2. Aat a meeting of the crediton ot such
debtor, domiciliated in the State, shall ..
called on a certain day at the office of a notary
public, by order of the judge; at whi^h meet-
log tfae creditors shall be summoned to attend
by process issued from ttie court, if the
nors live within the parish where the meeting
shall take place, or by letters addressed to them
by the notary, if they are not residing In the
parish, ate"
It was under this law that the matters In the
defendant's answers were pleaded, and it was
Insisted that the District Court should have
snspended all proceedings in the suit.
The defendant, tt appears, exhibited his
schedule, as sUted in the State Court; but it
nowhere aiipears in the record that notice was
given to the plaintiff either by the notary or
otherwise, as the law requires. Witliout de-
ciding what effect these proceedings in the State
Conr^ If r^;ular, could have on the suit in the
IKstrict Court, it is enough to say that aa the
plaintiff bad no notice, he was in no tense made
a party to the proceedings, and consequently
hit ri^tt are in no respect affected by them.
The District Court, therefore, did not err in
■vemtling this defense, and giving a iudement
lor the plaintiff.
Thit point was decided in the eas* of Breed-
tLaoT
lore and Robeaon r. Nicotet and Sigg, T Peters,
This cause came on to be beard on the tran-
script of the record from the Diatrict Court of
the United States for the Eastern District ol
Ix>ui9iana, sud was argued by cauiideli on
consideration whereof, it is adju.Iged and or-
dered by this court that the judgment of the
said District Court in this cju:ie be, and tlie
aame is hereby affirmed, with costs and dam-
ans at the rate of aiz per c^ntuiu per annum.
ALBZANDEH BRADEN.
The delsndaat, la an action o( detlnne. died pre-
lont to tb« return daj ol ttte term, and at the
enn bis destb was tunested, and ■ scire Iselas
— '-aueil to hli eiecutors, t" - - ' "
: which I
i"Sa;."
- -'erruled. sod tbe suit abated. ,
wards, la tbe same term, tbe plaintiff's sllomej
moved tbe conrt to rescind the order reluaLna (o
revive tbe suit; and upon tills motion ths Judges
were opposed Id opinion wb ether tae action could
be revived aninst tbe personaJ reproentatlvM at
(be defeadaut. which division waa eertlfled to tbe
Supreme Court. Held, that tbe quettioD cannot
be braugbt up on a certificate ot dlvlsiUD. There
wss not. In strictness, sni' csose In eoart. The In-
surmountable oUectloa Is, that tbe ti-antlng or
refusing tbe motion wss s matter resllDg Id the
dlBpretlon ot the court, and did not presenfa point
thai could be eertlfled under the act of Congress.
ALiliougb the word* ol tbe act are peneral. that
wbeuerer an; aueatloo aball occur before a elrcnlt
court upon which the oplolon of the ludgei aball
be opposed, the point shall bs esrUfled, etc. ; ret It
Is verj certsln that this cannot embrace everji
question that ms.r arise la tbe progress of a caiiss,
from Its commencement. There ma; be msny mo-
tions made In tbe dlftsreot stages of a cause, be-
fore trUl. that could not be brought here under •
• of d
motions tor a
r trial;
ting Id the discretion of the etc
Euii I..VUCI, arn liui to be reviewed hete.
Tbe questions wbkb ma; be eertlflid ars tbme
which mt7 arise on the trial of a esse, and are
such as may be presented upon tbe flnal bearing of
a cause, or pleas to the Jurisdiction ot the court.
The motloa !n the present case does not s' "' ~~
atronaer grounds tban a moHoD for a oe'
Bod It hai been decided In this court. In ._.
of The United Btstes v. Daniel, B Wheat. Qt^ . S
Cond. Rep. 170. that a dlvlaton o( oplalon upon
aucb a motion caooot tw brought here 07 a esrlUl-
cate of s division of opinion in the Circuit Court;
refusing a new trial Is a mere matter of dlsci-ellon :
and tbe teluul, aithougb tbe croundx •>! no- m"
lioQ be spread upon the record. Is no snSlcleDt csust
of Ibe division at opinion
s thsl the
. and tbe pialntllf Is drive
coiirl do not mean to d
o nuettloL can be brouifbt
e of a dirlalon of opinion
u'iJ'if-s'X
upon Ibe trial ot tbe ca
se, but orp
SupBEUE Coot or thk Uhited StAraa.
IBM
N A certificate of division in opiaion from
th« Circuit Court of tlie United States for
Weet Teiinesiee.
2ST*] *At Scptetalier Term, I82S, an utioE
of detinue was instituted in tlie Circuit Court
by Jolin II. Davis against Alexander Brndi
to recover a negro slave. During tlie progress
or the suit the plaintiff died, ind the suit
was revived in the name of Elizabeth Da-
vis, his administratrix, on the Ist day of
October. 1830. Afterwards the defendant
Alexander Braden died, and at Septei
Term, 1832, his death was suggested by the
plaintifT; and at September Term. 1N33, the
court made an order as follows: "It appearing
to the court tliat the death of the defendant
was suggested at the last term of this court, and
no steps having been since talcen to revive the
suit against the representatives of said defend-
ant, it is ordered that the same abate." After-
wards, at the same terra, the order abating the
suit was set aside, and a scire facias tvaa issued
to his executor; and on the return of the same,
in September, 1834, a motion to revive the suit
against the executor of Alexander Braden was,
upon argument, overruled. On a day after
wards, in the same term, the plaintitTs counsel
moved to rescind this order, and the court di-
rected the following to be entered of record,
viz.:
"This was an action of detinue founded on
a tort, brought by the plaintiff againat Alexan-
der Braden, the defendant, for the wrongful
detention of a slave. The defendant Braden
died previous to September Term, 18i3, be-
fore the suit could be tried. His death was
suggested at September Term, 1S32, and a
scire facias issued against Margaret Braden
and Harvey Braden. his personal representa-
tives, since the last term, returnable to th^'
present term, to show cause why the said action
should not be revived.
"The personal representatives by their coun-
sel appeared, and upon argument of the motion,
whether the said action should or could be re-
vived against said personal representatives, the
opinions of the judges on said point were op-
posed. Whereupon, upon motion of the plaint-
iff, by her attorney, that the point upon which
said disagreement happened, may be stated
under the direction of the judges, and certified
under the seal of the court to the Supreme
Court to be finally decided. It is therefore or-
dered that the foregoing Htatement of facts in
relation to said disajfreement, which is mode
under the direction of the judges, be certiSed.
according to the request of the parties, and the
law in that case made and provided."
Mr. Huntsman, for the defendant, stated that
the record presents but one question for the de-
cision of this court: Can an action of detinue.
28S*] 'founded on a wrongful detention of
property, he revived against the executor or ad-
ministrator of a deceased defendant!
For defendant it is insisted it cannot.
The unlawful detention is the gist of the
action. 1 Inst. 286; I Chitty, PI. 119. But
this question has been put at rest in the State
of Tennesset by the very elaborate decision of
the Supreme Court of that State in the case oF
Jones and Glass v. B. B. Littlefleld, administra-
ian. etc, reported in 3 Yerg, 133. That case
Is deciaiTi sf t^i» cauie, viA Um fpurf sari
'II
"an action of detinue, founded OU a wrongful
detention of property, cannot be revived
against an administrator," etc.
The instruction to the Circuit Court ahonld
be that this suit cannot be revived against the
personal representatives of Alexander Braden,
deceased.
No counsel appeared for the plaintiff.
Ur, Justice Thompson delivered the opinion
of the court:
This was an action of detinue , brought
against the defendant for the wrongful deten-
tion of a slave. The defendant died previous
to the term of the Circuit Court in the District
of West Tennessee in September, 1732. Hit
death was suggested at the term, and a acire
facias afterwards issued against Margaret Bra-
den and Harvey Braden, his personal repre-
sentatives, returnable at the September Term,
1834, at which term the parties appeiLred by
their attorneys: and the plaintilT's attorney
moved to revive the suit against the executors
of Braden; which motion, on argument, wa*
overruled hy the court, and the suit abated j
and at a subsequent day in the same term the
plaintiff's attorney moved the court to rescind
the order refusing the motion to revive the suit,
and upon this motion the judges were opposeil
in opinion whether the action could be revi\«il
against the personal representatives of the de-
fendant; and the case comes here on a certifl-
cate of a division of opinion.
The question cannot, we think, be brought
up on a certifloate of division of opinion in the
Circuit Court: there was not, in strictness, anr
cause in court. This suit had abated by the
death of the defendant, and the motion to re-
vive it against his iieraonal representatives hod
been denied, and tne motion on which the di-
vision of opinion arose was to rescind that rule.
This motion, however, being made at the eamc
term in which the motion to revive had been
'overruled, this objection may not be [*3B9
conclusive ; but the inaurniounlnble objection ia
that the granting or refusing this motion was •
matter resting in the discretion of the court,
and did not present ft point that can be certified
under the act of Congress.
Although the words of the act are general,
that whenever any question shall occur beforv
a circuit court upon which the opinion oF th«
judges shall be opposed tbe point shall be cei^
tified, etc.; yet it is very certain that this can-
not embrace every question that may arise in
the progress of a cause from its commencement.
There moy be many motions made in the dif-
ferent stages of a cause, before trial, that couM
not be brought here under a certiflcate of divi-
; such as motions for amendments, com-
ions, for eontinu.ancea, etc.; and various
otiier motions that arise in the pro-jreas of a
which, if brought up in this manner,
would occasion great drlay ami expense These,
til other questions resting in the discretion
of the Circuit Court, arc not to be reviewed
Tlie first proviso in this section of the art (3
Laws U. 6. 482, sec. 6) would seem very
plainly to indicate that the points which maj
be certified to this court must arise upon some
question at tbe trial, "Provided, that nothing
hereii) contained iholl prevent tbe cause from
r«tCT« 1*.
Keeme *. Till Hkim ov Dij)iBL Claak.
Mceeding; if, In the opinion nf the court,
nrtbsr proeeeding can be had without preju-
dice to Uie merits." And thia coosiruction of
the met ia Id some messure corroborated bj the
r vision in the former Act of 1793. 2 Uiws U.
306, for the like purpose, providing for ■
division of opinion when the court should be
held bj the district judge and one of the judges
of the Supreme Court. That act is in terms
restricted to questions arising upon a final
hearing of a cause or pleas to the jurisdlctiun
of the court. The proviaion in the present Act
of 1802 was a substitute for that, as to the
mode of disposiug Of the question. But there is
nothing in this act aSording grounds for the
eo-iclusion that it was intenued to enlarge the
provision as to tlie questions that were to bsi
brought up.
The motion in the present case docs not
stand on stronger grounds than a motion for a
new trial, and it has been decided in this court,
in the ease of The United States v. Daniel. 6
Wheat. 542, that a division of opinion upon
cuit Court, and the reason assigned is that the
granting or refusing a new triul is a mere mat-
ter of ^scretlonj sod the refusal, although tb«
grounds of the motion he spreaij upon the rec-
ord, is no aufficieiit cause lor a writ of error.
i»0'] 'The elfect of the division is that the
motion ifl lost; so in the present case, the ef-
fect of the division of opinion is that the mo-
tion is lost and the plaintiS is driven to a
D«w suit.
It ma; be supposed that the cose of The
United States v. Wilson is an authority tor en-
tertaining the present question (7 Peters, 164) ;
but that case differs tssentiallf from thU. That
case was actually in court, and the motion on
which the judges were opposed in opinion re-
lated to proceedings in the trial of the cause,
the prisoner having pleaded guilty; pronounc-
ing judgment by the court was a part of the
trial, and the question arose upon a motion uf
the district attorney for judgment, it was not
a matter resting in the discretion of the court
whether to give judgment or not; the court was
bound eitlier to pass sentence upon the priauner
or to discharge him. The point upon which
the judges were divided in opinion did not
■ elate to any matter resting in the discretion of
the court as to the nature or degree ot punish-
ment, but whether the prisoner was punishable
at ait or not; and that depended upon a ques-
tion of law growing out of the pardon of the
priaoner, and in no respect rested in the discre-
tion of the court. We do not mean to decide,
definitively, that no question can be brought
here upon a certificate of a division of opinion,
unless the point arose upon the trial of the
eauae; but we are very much induced to think
that such is the true construction of the act,
but from the general words used, cases may
possibly arise that we do not foresee. The
qoeation, however, brought up In the present
case, being one resting entirely in the discre-
tlOB of the court, is clearly not within the act,
and this court cannot, therefore, take cog-
nisance of the question.
Thli cause came on to be heard on the tran-
Mript of the record from the Circuit Court of
III. cd.
the United Stales for the District of West Ten-
nessee, and on the point and question on which
the judges of the said Circuit Court were op-
posed in opinion, and which was ceriiiled to
tills court for its opitiion agreeably to the act
of Congress in such case made and provided,
and was arf^ued by counsel; on consideration
whereof, it is the opinion of this court that it
cannot take cognizance of the question certi-
fied, the case being one resting entirely in the
discretion of the Circuit Court, and therefore
clearly not within the act of Congress of the
29th of April. 1S02. Whereupon, it is oritcrcd
and adjudged by [his court that it be so certi
Bed to the said Circuit Court.
THE HEIRS OF DANIEL CLARK.
la tlie court Mlow wUhlu llie purview of the act:
the csK tasTlni b«en dpcidpcf iipun u coi atvral
luslter. Independent of. and wbolJr aside (rem aaf
■ucb quest ion.
IN error to the Supreme Court of the State ol
I»uiaiana.
This case was submitted to the court on the
record by Mr. Brent, for itic piuintiff in error.
Afterward. Coze, for the de fondant, gave to
the court the following statement, In support
of a motion to dismiss the suit for want of
jurisdiction.
This suit was instituted to recover $10,000.
with interest. This was the alleged coniidera'
tion money paid by Kt'eiie, for the convej'anc<f
of a tract of land described in the record. Tlit-
ground of the claim is the covenant of war
ranty contained in the deed, and the eviction oi
the ptnintifT by a paramount title, vis., that 9 1
the United States.
The only evidence of this eviction was Ihat
the United States caused a survey to be made
of this, among other lands.
The District Court of the State decided that
this survey did not amount to an eviction.
This judgment was alfirmed in the Supreme
Court.
The present writ of error is directed to tbe
Supreme Court of Louisiana by virtue ot tn;
twenty-fifth section of the Judicial Act of 176^}
The defendants in erroi submit that tbe
decision of the Supreme Court ot Louisiana —
that the matter prsved, viz., the mere fact that
the officers of the United States bsd surveyed
the land in question — does not amount to an
eviction, is not a decision against any claim,
title or exemption, under the Constitulion.
treaties or laws of the United States, or in any
way within the provisions of the Judicial Act.
•Mr. Justice Story delivered the opin- ['299
Ion of the court:
This is a writ of error to the Supreme Court
of Louisiana, brought here under the tneiity-
4St
SOPIBMl COUBT or TBI Ukiteo Statca.
flftb Mctlon of Ihc Jndldftir Act of I7S9 (cfa.
20), to revise the iudgnnent of that court
The suit was origmally brought hj the plain-
tiff in error in the SUte nistritt Court against
the defendants in error, as heirs and represen-
tatives of Daniel Clark, to recover the purchale
money and interest for ■ certain tract of land
situate near Baton Rouge, tietween the rivers
Perdiilo and MisBissippi, east and west, and the
thirty-first degree of north latitude, and the
River Iberville, north and south; which Clark
sold to the plsintifT in error, in 1807, for (10,-
DOO. The petition states that Clark derived hi*
titU thereto from or through a grant of the
same troni the Spanish fiovBrnment. after the
Treaty of St. lldefonso. in tlie year IBOO, by
which it nas ceded to France by Spain; and
that France afterwards, in 18U3. teded it to the
United States as a part oF Louisiana, and that
in virtue thereof, the United States acquired
a Just title thereto, and under the acts of Con-
gresa. have entire possrssion of the same; and
the petitioner refers to certain accompanying
document! (marked No. 1 and 2) to prove the
sal* to hhn, and the occupation and possession
of the United States. The defendants m error
pleaded the general issue, and judgment was
given in Iho State District Court for them.
The plaiiitilT in error then carried the same, by
appeal, to the Supreme Court of Louisiana; and
the only point that appears there to have been
raised or decided was, whether the plaintiff in
error had been evicted from the land or not.
According to the practice in Louisiana, the
opiiijon ot the Supreme Court ja slated on
ibe record. After rei:iting the state of Uie
pleadings, it proceeds as tollows: "The plain-
litr conttnils. he showed an eviction, as the
evidence esiBlili»he», that the whole land alonj;
th« stream on which the premists are situated,
from its souree to its mouth, was surveyed by
order of the United States. It dies nut appear
to u« that the District Court erred. It is true
the surveyors must have neiH'ssarily passed
near the plaintiff's land in effecting the suivey.
[t does not appear to us that it was occupied.
or that any person on it was theicby dis-
turbed." And then, arter adverting to the
case of Bessy v I'iiiiade, the court added; "The
present ense differs from that in this, that here
the United States have directed an act of own-
ership over a vast tract of country, some small
|>art of which may well be supposed to have
been lawfully possessed and owned by indi-
293*] viduals. 'This does not appear lo us to
dividuals. much less an eviction in this par-
"This is the whole of the opinion of the
court, from which it is apparent that the judg-
ment did not turn upon any question within
the purview of tlie twcntyliftli section of the
ludleiary Act of 1789 (ch. 20). but wholly upoi
a collateral matter, independent of and wholly
asjdi from any such <^uestion. It was merely
a decision that a public nurvey, under the au-
thority of the United States, of a large tract
oF country, includin); the premises, was not, per
•e. an eviction of the plaintiff in error."
Upon the grounds, therefore, of the doctrine
already staled by this court at this term in the
case at Crowell v Bande), the cause must Im
dismissed for want ot jurisdiction.
•THOMAS LELAND and Cynthia B. [•!•<
Leiund hia Wife, Lemeul Hastings, Georn
Carlton and Elizabeth Waite Carlton Us
Wife; WlllUm Jones Hastings, Jonatbom
Jen lis Hastings, Lambert Hastings, Jnd
Hastings, Hubbard Hasting* and Horriat
Maria Hastings, Flaintiffo,
DAVID WIUUNSON.
Cvntbla Jeaks, on a petition to tbe General As-
rmlily or Hhode Isiand, represFntlDg (bat *tu IrBS
I Uami
i Ibe
tba M-
prabau
estate ot tb«
belns lOBuIDcleDt lo paj
tale, olilained auiborltj' from
deceased u ibould be oecetsarj to ptj lit oebca.
Under tbls authorltir stae sold ind eoiivcjed cer-
tain lands la tbe Stale of Rbodc Island as Im!:oiic-
laa lo the estate, acd rccelTed i part of tbe i.«>-
•ben (be deed eieeuted lij Ibe petitioner should he
rattQed by tbe Geaerat Asaemblj. Tbe residue of
Ibe puretaase money was renreseeted lo be BUiioiiilc-
ly neceuiry to pay tbe debts ot (be eitale. sod a
ratlHciiiiDn ot the deed, etc., was prsjed. la ttM
Lower House. June, 1T02, -it was voted and re-
soiled that tbe said petition be recelred, and Ibat
the said deed and tbe same ts berebj ratlQed aad
conflrmed. so far as respects tbe conveyance of Oiy
rigbt or intereal In ssJd eslale mentioned In nM
divd. which belonged to tbe said JoaatbaQ Jenka
St tbe time or hIa decease." And In the Upper
House this resolve naa read [be same daj and coa-
CoiTST Tbe purebaeera. under Ibe deed
rprpivi'd III the tnlerest in tbe prtB-
resled In Jo on than Srnks
vested In his beirs o '-~
and n-bJrb on bis deotb ve
■see*. Tbe Act o( Ibe U
liy evidence of tacts prior
lat Ibe deed
>[ Cvnthla
ti Ihe deed
Tbe power ot the Lcstslature of Rhode Island In
reistloa lo Ibe eonflrusUon or such sales of real
m^i- ssnrtirn past iransHctlona where vetted rifbts
Hie not dlsturlwd. while ibt court can only au&W-
ON a cerliflcate of division In opinion W-
Iwcen the judges of the Circuit Court of
the United States for the District of Rhode
Island.
The case was submitted to the court by Mr.
Wliipple, for the defendant, on a printed ami-
ment. No counsel appeared for the plaintiff
Mr- -Justice M'Lean delivered tlie opinion of
the court;
The matters in controversy in this case nr*
contained in certain points on which the iudgea
oi the Circuit Court for the District of
'Rhode Island were divided, and which 1*S95
hnve been certifled for decision to this eoiirt,
under the act of Congress.
The plaintiffs brought their action of eject-
t against the defendant to recover a poa-
session of tbe land In controversy; and ther
claim as the beirs-at-law of Cynthia Jenks. It
proved that Jonathan Jenks, who ^
seiced of the premisea, and who died in Jknu-
Petera t*.
LlLAMD R U. *. WlLXIKSON.
uy, I7BT, de*1»(>d t!i« land to hta daughter
Cjiithia, a few dayi before hts dfcetie.
The defendant'! counsel i»v<! in eridrnce a
eertBin deed, executed by Cynthia Jcnki, ex-
•ontriK. to Moeet Brown and Ariel Willclnian,
dated the ISth of November, 1T91. and a eer-
tafai bond or warrant of the ume date.
AIm tho petition of Cynthia Jenks to the
OenaraJ Assembly oF Rhode Island, rppresent-
iag that she was executrix of the lt,it will and
twtament of Jonathan Jenks. late of Win-
cheater, in the State of New Hampshire, de-
eemaed; and that the peraonal property being
hMnfflcient to pay the debts of the estate. ■h<
tbe deccMed as should be necessary to pay the
d^tta. And tbat under this authority she sold
and conveyed certain lands in the State of
Rhode Island as belonging to the estate, and
received a part of the consideration money;
and the balance was to be paid when the deed
czecnted by the petitioner should be ratified
by the Genetal Assembly. The residue of the
purchase money was represented to be abso-
Intely necessary to pay the debts of the estate,
and a ratification of the deed, etc., was prayed.
In the Lower House, June, 1792, "ft was
voted and resolved that the said petition be i
eeived, and that the said deed and the same
berebj' ratified and confirmed, so far as i
ipects the conveyance of any right or Interest
in aaid estate mentioned in said deed, which be-
longed to the said Jonathan Jenks at the time
of hi* decease." And in the Upper House this
resolve was read the same daj and concurred
in.
The questions adjourned to this court are at
I. Whether the confirmatory act, above stat-
ed, Is sufficient to devest the title of the plain-
tiffs, if the sal* of Cynthia Jenks, the ex-
ecutrix, confirmed by that act, was not neces-
•MT to 1
than iTenl
8. Whether the burden of proof of the ex-
istence of such debts, and the inBUfficiency of
the personal estate, and also of the real
Btt*] 'estate, which the said Jonathan Jenks,
by hia said will, authoriied his executors to
•all, Mid pay the same, or of either of said
points. Is on the defendant.
3. Whether the said confirmatory act is
ptinm facie evidence of the existence of such
debts, and of such insufficiency of perEonal es-
tata and real estate, so authorised to be sold as
•iereaaid.
4. Whether the defendant is to be deemed
and held to be a purehaaer for a valuable con-
^deration, bona fide, and without notice so that
he can protect himself under his title afore-
said; notwithstanding there might have been
no deficiency of assets, and no debts of the
testator remaining unpaid at the time of the
sal« of Cynthia Jenks, executrix as aforesaid,
and tha passage of the confirmatory set afore-
said.
B. Whether the description of the demanded
premises in the said deed of Cynthia .Tenka.
taken in connection with the connrmatory act,
I* BufBdent In law to devest the plaintiCTs
title to tfa« sama, and fionvej the same to the
tL-M.
S. Whether the recital of the ?teense of the
judge of probate in New Hampshire, COn-
lainpd fn the dted of Cynthia Jenks, dated
N'ovember IZth. 17U1. and Che recital of and
reference to said license in the petition of the
said Cynthia to the Legislature, aod the act
passed, is prima fauie evidence of such license.
The whole of these cjueatiuns. with the ex-
ception of a pari of the fifth, that refers to a
description or th* premises, and which it not
so stated as to enable the court to decide it,
may be included in the simple inquiry whether
tlie grantees in the deed cunnrmed by the Legis-
lature took an stisolute title to the premises in
dispute. If this inquiry be answered in the
allirmative, th^re i^ an end to all Further in-
quiries; and if in the negative. It follows that
tne title and all the proceedings referred to
could only be considered aa prima facie evi-
dence of the facts represented.
In 1829 this ease was brought before thin
court by writ of error, and the court then de-
cided that the Legislature of Rhode Island
had the power to pass Che above aet. 2 Peters,
027. And Che only question whicb remains for
consideration is the sfi'ect of such legislative
If the Le^slature had power to confirm the
deed in question, is it not made absolute by the
confirmatory act I Tbat such is the character
of a title, made by an executor under an order
of court, is admitted; and is it not clear that
the sanction of the Legislature must produce
the same effect!
'In this respect 'he power of the |*29T
Legislature of Rhode Island is greater than the
strictly judicial power; for they may sanction
past CransHi-i ions, wb<>re vested risliti are not
disturbed; while the court can only authorise
a title to be made in future.
No fraud is alleged between the purchasers
and executrix, and the presumption is that
they acted in good faith. Nor does it appear
that the rights of stran^rs were aO'ectea by
tbe sale.
The purchasers, then, under the deed sanc-
tioned, received all the interest in the premises
which had been vested in Jonathan Jenks, and
which on his death vested in his heirs or devi-
sees. The aet of Che Legi^'lature and the deed
are unconditional, and nt-ther the heirs of
Cynthia Jenks oor any other persons can im-
peach the deed by evidence of facts prior to the
act of confirmation. The Legislature would
have investigated the facts and confirmed the
deed to but little purpose, if it is to be con-
sidered (mly as prima facie evidence of title,
In this view it would be necessary, in order
to raaist the title set up b^ the plaintiffs, to
show that the adniiniaCratrix proceeded regu-
larly in her act* of administration, and that
the sale of the real estate of the deceased in
Rhode Island was neceasary to pay debts. But
this is not the nature of the title received by
the purchasers. Bo far as (he deed, under the
satictinns given to it. purports lo convey; all
the right to the piemises. ul which Jonathan
Jenks was seized at the time of his decease,
was conveyed absolutely.
This cause came on Co be heard on the tnn-
script of the record from the Circuit Court of
the United States for the District of Rhode
411
.>"
SUPBJUia COUBT OF TBI UlUTtD StAlXA.
Ulknd, and on ths points and questfona on
which the judges of the aaid Circuit Court war«
opponcd in opinion, and which were certified
to thii court for its opinion, a';recBLily to the
act of CongresB in «ui;h caae made and provided.
and was argued by counsel; on consideration
whereof, it ia the opinion o1 this court that
the grantees iu the de^d con&rmed faj the Leg-
islature of Rhode Island took an abaolute title
to the premises in dispute in this cause; which
opinion answers the Grst, second, third, fourth
and sixth ({uestioDS so certified; and also the
fifth question, except that part of said fifth
question which refers to a description of the
premises, and which is not so stated aa to en-
able this court to express an opinion; all of
which is hereby ordered and adjudged, by this
GDivt, to b« certified to Che said CiTcuit Court.
PETEE Q, RIVES.
RIVBB,
■ iuOgm,
; Circiil
Ihe Jud
r West 1 -.... _ ._
mcbt to have been loinl aKuinal Rlvca nni
Lyne. and no ressoD was Bani^nro Id II nby 1.vd<
■ a partT to thp snit. Th<> flefi'mlHrt lifirp
J. and the Circuit Court
The JudgmcDt o( the <
I toint obligor* snit otbar
piBlntllV
t, ouebt t<
._., ._ led (o Join ihpm til. by s
] abatement tor tbe Donjolnder, But such
Fs not matter In bar of the suit or In arrrat'of
Jiidnmcnt upon the tiDdlip ot ' '
e vide a
I the
doctrine does not appear to have been
judgments, and other matters ot record, siicb as
bonds to the crown. If In cases ot this sort. It
apTieara bT the declaration or other pleadlDgs thnt
there Is anolher [oint debtor who Is not aued, «l-
(liouBb It la not averred tbst be Is llTlntt, the bb-
lection need not be pleaded la abatement, but It
mai be lalieo adcBDlsEe oF upon demurrer, or In
arrest ol Judgment.
A Judgment that s declsratlon
Stance (whkb alone, and not ms
the croaod of a general drmurmr
pleaded as a bar lo a gooA deciamt:
cause or action. Tbe jodgment Is
a Judimeot upon tbe merits.
■ bad tn aub-
the court ;
lated at large in the opinion of
Mr. Justice Storr delivered the opinion of
the court.
This is a writ of error to the Circuit Courl
for the D'ftrirt of West TcnniRnee.
The plninlifT in error, Gilmnn. brought an
action of debt against the defendant in error,
Rives, upon ■ joint ^ud^ment rendered in his
favor againat Rives and one Leonard ti. L.Tne,
In tha Circuit Court for tbe District of Ken-
tuck;. Th« deelantton la in tbe followlag
terms: "For that whereas the uid Benjamia
Ives Oilman, Jun., heretofore, to wit. at the
November Term, in the year of our Lord 1829,
of the Seventh Circuit Court of the United
States, sitting in and for the District of Ken-
tucky, at Frankfort In said State, before, etc.,
by the consideration nnd judgment of the said
Court, recovered against the 'said Peter [*3f9
G. Rives and one Leonard H. Lyne the sum of
¥6880 then and there adjudged to the said B. L
Gilman, Jun., for hia damages, which he had
sustained by reason ol tbe n on -performance of
the defendant and the said Leonard H. Lyne,
of certain promises and undertakings then late-
ly made by them to the plaintiff, and also hia
costs and charges by him about his suit in that
behalf expended, whereof tbe said Peter 0.
ords, etc.. which said judgment still
in full force and effect, etc.; whereby an actitn
hath accrued to him the said B. I. Oilman, Jun.,
to demand and have of the defendant the said
sum of (1890 dollars above demanded; yet tbe
defendant, though ofter requested, etc."
To this declaration there was a general de-
murrer filed; and upon tbe joinder in demurrer,
tbe Circuit Court gave judgment in favor of
the defendant, "that the declaration aforesaid
and the matters in the same contained, are not
good and sufficient in law to eniibte tbe plain-
tifi to have and maintain his action aforesaid,"
etc.
The present writ o( error is brought to re-
vise that judgment.
The sole question in the case is. whether the
action was maintsinable against tbe defendant
Rirea alone; the judgment appearing on the
face of the declaration to be a joint one against
him and Lyne, and no reason being assisawl
in the declaration why Lyne was not made a
party thereto. If it had appeared upon the face
of the declaration that Lyne was dead, or oat
of the jurisdiction of the court, or ineapalile of
being made a party to the suit, there is no
doubt that the action might well be maintained
against the other judgment debtor. The quea-
lion then is. whether the nonjoinder of Lfne.
■a a eodefendant, and the omission to aver any
reason for such nonjoinder, is a fatal defect,
upon a general demurrer lo a declnralion thua
framed. The matter misht, without doubt,
have been pleaded in abalrment; and not hav-
ing been so pleaded, it is contended that it
cannot be taken advantage of upon general d«-
The doctrine which is to govern in this case
is of a purely technical nature, and turns upon
the rules of good pleading. We have cert»inly
no desire to encourage exceptions of Mils sort,
for they are generally of a nature wholly be-
aide Ihe merits of the caae. But slill, if they
are founded in the general rules of pleading,
and are supported by authority, it is our duty
not to disregard them.
Generally speaking, all joini. obligors an-1
other persons bound by covenants, contract, or
quasi contract, ought to be made parties to tha
*suit; and the plaintiff may be com- I'SOO
pelltKl to join them all, by a plea In abatement
for the nonjoinder. But such an objection caa
onlv be taken advantage of by n plea in abate*
rtun 10.
UtLKAR T. Bnm.
KMit; for ff one part^ ottly )■ (mm), It fa not
mktler in hsr of the nuit, or in aireBt of judg-
ment, upon th« finding of thp jury, or of i«rl-
>nce in evidence upon the trial. Thus, for in-
•tainrc. If one obligor be sued upon a jnint
bood. and upon oyer the bond ia spread upon
the record, and thereby becomes a part of tha
daclaration, by which it appcari that inotltcr
penon ia named as a joint obligor, the party
■ned should not demur, but should plead in
ftbateinent that the other sealed and delivered
the bond, and waa in full life; for non constat,
upon (be oyer, that the other did seal and de-
liver the bond. So it was held in Wlic:pdale'a
Mse, S Co. Rep. 119; and in Cabell v. Vaughan,
1 Sannd. Rep. 2B1, and that doctrine hai been
eonstaotly referred to ever since, and was fully
eonflrmed in Rice v. Shute, 6 Burr. Rpp. 2611.
But if it should appear upon the face of the
declaration, or other pleadin? of the plaintiff,
thkt another jointly sealed the bond with the
defendant, and that both are stilt living, the
court will arrest the judgment, and the objec-
tion may be taken by demurrer; because the
EUintiff himaelf shows that onnlher ought to
s joined, and it would be absurd to compel the
defendant to plead facta which are already nd-
raitted. It is unnrceaeary to do more to atip-
I irt this distinction than to refer to the learned
^ate of Serjeant Williams to the case of Csbell
V. Vaughan, 1 Saund. Rep. 291, note 4, where
•U the leading authoritiea are collectad and
commented on.
But the aame doctrine doea not appear ta
fakTc been acted upon, to the full extent, {n
e«ae« of recognizance and judgments, and other
matters of record, such as bonds to the crown.
If in cases of this sort it appears by the decla-
tstion, or other pleadings, that there is another
Joint debtor who is not sued, although it it not
ATcrred that he ia living, tlie objection need not
be pleaded in abatement, but it may be taken
•dTantags of upon demurrer, or in arrest of
tidgmcnt. Thus, in Blackwell v. Aahton, A1-
fn's Rep. Bl, a scire facias was brought
A^inat three parties upon a recognizance ac-
knowledged by them and the principal, jointly
*ad Mvcrally; and upon a demurrer, the writ
abated by ^ood advisement, as the report say a,
because this being founded upon a record, the
plaintiff ought to show forth the cause of the
Tuiance from the record. But if an action i>e
brought upon a bond in the like case, there the
defendant ought to show that it waa made by
tbena and otbert in full life, not named In the
SVl'I writ: 'because the court ahall not in-
tend that the bond was sealed and delivered
bj all that are named in it. There is another
report of the same case, or of another case
twees the same parties, in the preceding t<
of the court {in Stylea's Rep. SO), In which the
pointa are somewhat differential stated; but it
IB a very loose note. The case in Alleyn'a Rep.
SI, ha* been fully recoEnlzed and acted on in
the recent cases in the Court of Exchequer. In
Rex T. Young, 2 Anstr. Rep. 448, there was a
•cire facias against two joint auretiea upon a
recognizance to the king; and the declaration
■tated that four persona became bound by the
recognizance, without averring the other to lie
iead. or oullxwed. There was a plea put in
by the defendant, to which the crown replied,
aad upon general demurrer the plea and repli-
cation were held to be bad. An exception waa
taken to the declaration that all the parties
were not joined, and it waa held a fatal objec-
tion by the court. Lord Chief Baron Mac-
donald, in declaring the opinion of the court,
said; "The defendant, however, reats on an
objection to the declaration that two of those
jointly ]>ound In the recognizance are sued
without the rest, and without averring that the
others are dead. And it is clear that this ia a
valid objection to it. But it has been contend-
ed that the objection should have tteen talcen
by a plea in abatement. That rule holds where
the fact docs not appear upon the declaration.
But where it already appears on the declaration
that othen ought to have been joined, and are
not, no plea is necessary. It is clear from the
cases cited in 5 Burr. S611, and that in Alleya
which torresponds very accurately with the
present." The same point waa adjudged in the
same way by the aame court la tlie subsequent
case of Rex v. Chapman, 3 Anstr. I!ep. Sll.'
As a question, therefore, of authority, the
doctrine seems well settled, and we cannot say
that upon principle there is not good sense in
requir og the plaintiff in hia suit to assign soum
rtason why, when he declares upon a joint
judgment, he doea not join others whom he'
states in hie declaration to be jointly liable.
The objection may be urged that the judg-
ment upon a general demurrer, in this ease,
will be a good bar to any future suit brought
against the present defendant upon the name
debt, or asainst him and the other judgment
debtor. We are of a different opinion as to
both, if the declaration be properly framed; for
a judgment that a declaration ia bad in sub-
stance (which alone, and not matter of form, ia
the 'ground of a general demurrer) can ['SOS
never be pleaded as a bar to a good declaration
for the same cause of action. The judgment is
in no just aenae a judgment upon tiie merits.
If authority be wanting for this poaition, it
will be found In the case of lumpen v. Ked^-
wiae, 1 Mod. Rep. 207, where to an aclion In
nature of a conspiracy the defendant pleaded
a bad plea, and judgment waa in part rendered
against the plaintiff for the inaufliciency of his
declaration; but by mistake or design the judg-
ment was entered that the plea was good, and
ideo eonsideratum, instead of that the decla ra-
tion waa bad and insufficient, and ideo consider-
atum. Upon a second suit for the aame cause
of action, the former judgment waa pleaded,
and upon demurrer held no bar. And the court
held that notwithstanding this mistake in the
entry, if the plea was bud it was no estoppel;
and the court accordingly took notice of the
plea, and said upon that matter, aa It falla out
to be good or otherwise, the second action ia
maintainable or not. And judgment was ae-
cordingly given, nisi, for the plaintiff; but if
the judgment had been properly rendered that
the declaration was Insufficient, etc, there was
no doubt that the former judgment waa no bar.
But to avoid all possible difficulty on this
point, in our own judgment we shall state the
cause for which the declaration is held bad, so
that it cannot be a bar to any suit properly
brought on the judgment.
SuPREMt CoUST OK TBI UNITD STATIS.
Tbia Ckuse came on to be beard on the tran-
Hript of the record from tlie Circuit Court of
the United SUtea for the Diatrict of We«t Ten-
neaiee, and was argued by counsel; on con-
sideration whereof, inasmuch as it appcari to
tbe court that tbe declaration and the matters
therein contained are not «uRIdent in taw for
the said Gitman to have or maintain big afore-
■aid action against tbe said Rives, because it
appears upon the declaration that thei« ii an-
other joint judgment debtor, the said L;ne,
who [s not sued, nor any reason aeaigned why
be is nut joined in tbe suit; therefore, and for
this cause, it is considered \>j the court that
the judgment of the said Circuit Court be, and
hereof la affirmed with coats.
aoa*] -THE UNITED STATES, Appellantt,
STEPHEN D. FERNANDEZ et al.
o[ Spain before tbe ceasloa of FRirlda to the Unit-
ed Btalea. was conflrniHl to tbe grantee, by ttie de-
cree of the Judee o[ the lilaBtern District ol Klarl-
da. Tlie decree was nfllrmL'ij on app^al^
Tbe subject of etsdIs of land wItlilD Ihe Indian
boundarr. which bad not by any oIBrlil act been
declared a part of tbe rojal domain, wai fullf aod
'. MlDtoah.
{ and ' eierelsed tbe rlgbt ot
frrantlug 1
Tbe grants of land Id tbe poneMlon ot tbe In-
diana by tbe Oovernor of Florida, under tbe crown
ot Spain, were lood to pass tbe right ot Ihe crown.
The grants aeTered Ibem from tbe royal domain, so
that ther became private proiiertj, wblcb waa not
reded to the United State! by the treaty with
APPEAL from the Superior Court of the Dis-
trict of East Florida.
The caaa was presented to the ocurt by Mr.
Butler, Attorney- General, for tbe United
States, and by Mr. White for the appellees.
Mr. Justice Baldwin delivered the opinion
of the court;
Thii is an appeal from the decree of the
judge of the Superior Court for the Eastern
District of Florida, confirming tbe claim of the
appellees to sixteen thousand acres of land,
pursuant to the acta of Congress for the adjust-
ment of land claima in Florida.
In the court below the petition waa in the
form preacribed by taw, presenting a proper
caae for the exerciae of the Juriadi<3ion of the
The claim of the petitioner was founded on
his application to tbe Governor of East Florida
for a grant of sixteen thousand acres of land.
In consideration of hla services to the Spanish
iBdIvUt
government; which was gnuBted to Um at tin
place apecifled, with directions to mako the
surveys there, or at any other that may be va-
cant. Tfaia grant waa made the 13th of No-
vember, 1817; and aurreyed In May and June,
1818, in four different tracts.
Various objections were made In the court
helow to the eonflrmation 'of the title, ['SO*
which have not been pressed here, as they have
been overruled in tbe previous decisions of thi»
The only one which baa not been distinctly
considered, ia to that part of the land surveyed
which lies within the Indian boundary; where,
it is contended, the governor had no power to
grant lands. In the case of Arredondo, the
grant was of lands within the Indian bound,
ary; but which, by a proceeding ia the nature
of an inquest of oBice at the common law, wei«
declared to be annexed to the royal domain by
their aVandonmeut by the Indiana, fl Peters,
741. In the case of Mitchell, the original crant
was made by the Indians themselvea of lands
which had not reverted or been ceded to the
crown; so that the broad questian of the va-
lidity of an original grant by the governor of
lands within the Indian boundary, which had
Dot by any official act been decreed to form a
part of the royal domain, has never come di-
rectly before u^. It is now distinctly present-
ed for our adjudication, and ought to be de-
cided.
This subject was so fully and ably considered
in M'Intoah v. Johnson, that we have only to
refer to the language of the court to show that
every European government claimed and exer-
cised the right of granting lands, while in the
occupation of the Indians. B Wheat. 674, 679;
6 Cond. Rep. SIG. The proclamation of 1763,
which waa the law in Florida while that
province was under tbe dominion of Great
Britain, gave express authority to tbe governor
of that province to grant bounty lands to the
officers and soldiers entitled under that procla-
mation. No other restrictions were imposed
on them than that they should not grant any
lands beyond the bounds of their respective
?ivemments, as deacrihed in their commiasiona.
he general prohibition to grant lands reserved
to tbe Indians was conRned to the ^vemon of
the other coloniea or plantations in America,
6 Lawa U. S. 448.
The government of East Florida was declared
to be bounded west by the Appalachicola and
the Gulf of Mexico, north by a line drawn from
the junction of the Cbattahoochie and Flint
rivers to the source of St. Mary's River, and
by tbe course of that river to the Atlantte
OcGsn, and to the east and south by the At-
lantic Ocean and Gutf of Mexico, including all
islands within six leagues of the sea-coasU
B Laws, 444. Under the British government,
l^en, the Governor of East Florida nad express
power to make grants of lands in the posses-
sion of the Indians. Spain never made any
formal designation of boundary between the
two provinces; but practically. West Florida
extended *eaat of tbe Appalachicola to (*30S
the Bt. Mark's: this, however, left the who)*
country to the east of the St. Mark's within
the eastern province, including tho land* in
questioQ. • Peters^ 133,
P«twa IK
Tiii UNimi Statu v. Sxoin.
twMU them and the loduuts in Eftit Florida:
tlu eridenee to Che contrary ii very strong, ••
appMRd in the cua of Mitchell, 9 Pcten, 746,
and u it dppean in tbia ncord, p. IT, IS.
Not doaa there appear to have been any re-
■trktiaii on the powen of the governor to
nake nanta of iud under Spain, other than
thow impoaed on the governor! under Great
Britain: both made granti without regard to
the land being in the poaBession of the In-
diuu; thejr were valid to paaa the right of the
enwn, nibjeet to their right of occupancy ;
when that ceaaed, either by grant to Individu-
al! ivith the consent of the local governors, by
CMiioB to the crown, or the abandonment by
tha Indiana, the title of the gr«,nt«e became
complete.
On the general question, therefore, of the
validity of grantB of lands in East Florida in
paaaeaaioa of the Indians, we are of opinion
that they were good to pasi the right of the
ennni; the grant of the governor severed them
from the royal domnin, so that they became
private property, which waa not cedi^d to the
united SUtea by the treaty with Spain.
We therefore adjudge the title of the appellee
to be valid, and afflrm the decree of the court
This eanae came on to be heard on the tran-
script of the record from the Superior Court
hr the District of Eaet Florida, end was ar-
rtd by counsel 1 on consideration vrbereoF, it
onlered, adjudged and decreed by this court,
that the decree of said Superior Court for the
Uatrict of East Jlorida in this cause be, and
the aame la hereby affirmed.
I»«»J THK UNITED STATES. Appellant*.
BEKNARDO 6EGDI, Appellee.
Spanish land grant In Florida.
land In riorltla, cooOrnM.-.
TUi court cannot attach aov condltlaa to ■
Cnuit ol absolute propertj Id the wbalc ot ttr
und. It was made bv the govirnor, in sbioLnte
pioperty, with a premise of ■ title In form. He
wss the eacloilve judge o( the mndlllons to be Im-
PMcd on his craDt, and oI thelc perform an ee.
This case waa preiented to the court b* Mr.
Batler, Attorney -General, for the United
Statea, and by Hr. White for the appellee.
lUs i« an appeal from the decree of the judge
of the Superior Court for the Eastern District
of Florid*, eonflrming the claim ot the appellee
to sixteen thonaand acres of land, pursuant to
the acta of Coneresa for the adjustment of land
daltni in Florida.
In tlia conrt below, tbe petition waa tn the
fws preeeribed by law, prcMstli ~
cut for Um ftuia&r ^ '
The claim of the petitioner was founded on
his application to the Governor, of East Florida
for a grant of sixteen thousand acres of land,
in contjideration of bit services to the Spanlah
government, and for erecting machinery for the
purpose of sawing timber. The grant was
made by tbe governor, in absolute property,
with a promise of a title in form. The date of
the grant was the eth of December, 1814.
It has been suggested by llie Attorney -
General that Ifaough there was no express con-
dition in the grant, one was implied from the
consideration being in part the erection of a
sawmill. But we cannot attach any condition
to a grant of absolute property in the whole
quantity. It was excluBively for the governor
of the appellee a sufficient oonsidera-
tion, and made the grant absolute.
The land was survcjed in one tract, at the
place called for in the grant, on the 2d of Sep
tember, 1818. On an inspection of the whole
•record, we are of opinion that the litlc ['801
of the petitioner to the land surveyed is valid,
and therefore affirm the decree of the court be-
This cause came on to be heard on the tran-
script of the record from the Superior Court
for the District of East Florida, and was
argued by counsel; on consideration whereof,
it is ordered, ad udged and decreed by this
court, that the decree oF the said Superior
Court for the District of East Florida in thie
cause, be, and tho samo is hereby aliirmed.
•THE XJNITED STATES I*80B
BENJAMIN CHAIRES et al.
Spanish land grant In Florida.
da. In cotiaidDratlaii
lOvemmfDt. msde hciore inf .:rnion or me terri-
for; or Elorldi to tbe United Stslea. conflrmed.
APPEAL from the Superior Court for Bast
Florida.
The case was submitted to the court by Hr.
Butler, Attorney -General, for the United
States, and by Mr. White for the appelleet.
Mr. Justice Baldwin delivered the opinion
of the court:
This in an appeal from the decree of the Judge
of the Superior Court for the Eastern District
of Florida, confirming tbe claim of the appellee
to twenty thousand acres of land, pursuant to
the acts of Conjn-ess for the adjustment of
land claims in Florida, In the court below the
petition was in the form prescribed by law,
presenting a proper ease for the JuritdictioD
of the court. The claim of the petitioner waa
founded on an application to the Oovemor flf
East Florida, made by Don Jose de la Maia
Arredondo, for a grant of twenty thousand
acres of land, in consideration of his service*
to tlte Spanish government, whkh wa* granted
4IB
BUFBBKK Coun OJ THE UsiTBD SlATIS.
rroperty; and surveyed in one tract
ith of September, 1819. The petition
kllege that the; claim the whole lend by pur-
chau from Arredondo. On an inspectiOD of the
record, we are of opinion that the title of
ATTedondo wa« valid to all the land contained
in ^e Burrey, and (without deciding on the
elaim of the petitioner aa derived from him]
that the claim of the petitioner to the same
oug^t to be confirmed.
The decree of the court below is therefore af-
Thfe cause came on to be beard on the tran-
•eript of the record from the Superior Court
for the District of East Florida, and was ar-
gued by counsel ; on consideration whereof, it
U ordered, adjudged and decreed by this court,
that the decree of the said Superior Court for
the District of East Florida in this cause be,
and tbe same is hereby aSirmed.
30t»] 'THE UNITED STATES, Appellants,
CHARLES SETON, Appeilee.
Construction of Spanish land grant in Florida.
Under a graaC of the Governor of Florldu, prior
Id tbe ceEHloD of the same to the United States of
erectlDg a witer-mlll. a survey of Dve hunjrcd and
twent; acres was made, and at anclhiT place a
mrvey of Ufteeii tboueiiiid six buudieil and llilil;
■urvpT of tfvp hundred sncl twenty nrrcs wac
valid, and tbat the BUrvey of flfleen IhoussDd four
hnndrcd and ciglity acrca kbs Invalid ; but tbst the
frantee baa a title to flfteec tboDsand four hun-
dred and elEhty acres of TBcant land, vhkh he has
Jrlcht to hSTP surveyed, adjolnlui the survey of
Te bundred and twenty acres.
APPEAL from tbe Superior Court for East
Florida.
This was a claim to land in East Florida, un-
der a concession made by Don Jose GoppinRer,
Governor of the Province of East Florida, tnen
under the dominion of the King of Spain, on
the 6th day of May, 181S, to Charles Seton, the
ciaitnant. The ciainiant. on the 26th day of
April. 1816, applied by petition to Governor
Coppinger for leave to build a water saw-mill
on Nassau River, In East Florida, at a place
tailed Roundabout, and for the right to the
quantity of land which was customary for his
supply of timber.
On the Bth of May following, the ^veraor,
in consideration (as he states in his decree
made on said petition) of the benefit and
utility which u'ould redound to the improve-
ment of the province if what Don Charles
Seton propoeed should be carried into effect,
granted tg him, without injury to a third ner-
■on, that ot might build a water saw-mill at
tba place which he solicited; but, with the
precise condition that until he should estab-
Ibh said mill, said concession should be
•tdered as hot made, and without aiij[^ vali
•fl«ot until ttiat ei ' ' '
la ordar tlwt ba n
increased expeuaes whicb he waa preparfaig t*
incur, he might make use of the ptaa trees
which were included in the square of five miles
which he asked for.
Fifteen thousand six hundred and thirty
acres of this land were surveyed by George J.
F. Clarke, public surveyor of the province,
agreeably to the calls of the concession, on tb«
1st of November, 1616, which ia stated in the
Cetition to he adjoining to a tract of thrM
undred and seventy acres, which had l>eeti be-
fore surveyed by said 'Clarke as a part [*!!•
of said eiKteen thousand acres; but it is al-
leged that the certificate and plat of three hu-
dred and seventy acres, have been mislaid or
The claimant also alleges in the peti-
in full operation.
The district attorney, by his answer, filed on
bebalF of the United States, denies the powar
of the governor to make tlie concession; and
insists that if he did possess competent power
to make it, and if the condition was complied
with, it gives to Seton no right of soil, but oalj
a right to "use the pine trees which were com-
prehended In the square of five miles which fa*
asked for;" and that only while the miti w>«
Seton ha
the mill
neglect he
of the pin
This cla
a operation, by which failure and
has lost all right, even to the oaa
m is evidenced by a copy of the coa-
"" ' ' Thomas de Aguilar, lat*
plat for fifteen thousand six hundred and thirty
acres. A duly certified copy of another sur-
vey and plat, made by said Clarke on the IStb
of May, 1816, for five hundred and twenty
acres, at the place called Roundabout, was alae
produced.
It is in evidence that Seton built the mill la
the year 18IT or 1818 (for the witnesses dtffor
on this point), but all agree that it has not
t>een in operation since 181S.
Upon this state of the case, three questioaa
were submitted in the court below:
1st, Had the governor power to make tha
2d, If he had, what interest vested in Setoa
upon the establishment of the mill!
3d. Does that interest, whatever it was, ea»
tinueT Or did it cease with the destruction of
said mill!
The claim was confirmed; the first questioa
l)eing considered ae settled, and the court being
of opinion that, upon the establishment of the
mill, a full and complete title to the land itself
vested in Seton, to which be is entitled, not-
withstanding his neglect to keep it in opera-
tion. The United States appealed from this
The case was argued by Mr. Butler, Attor-
ney-General, for the United Btatei, and by Mr.
White for the appellee.
•Mr. Butler stated that if the court I*«il
shall consider the grant to the appellee a valid
grant, it will be for then to decide whether It
shall endure beyond tbe ground occupied aa •
mllL Waa it not a grant on a condition subaa*
r«Mn 1*.
Itl3<
Thi Ukiiko Statics t. Sibsalo.
quent thkt the mill aball be kept In orderT
The grant it not to be understood m giving
the trees until the milt was built— no furtber
Mr. White, for the appellee, aaked the atten-
tion of the court to the petition, which was for
the right to u«e timber until the mill should
ba built, and afterwards for a right to tlie land.
Tbeae grants are protected bj the provisions
nf the treaty, which gave three years after it
was made to complete the condition. But In
this case the mill was built, and what after'
wards took place was of no moment.
Mr. Justice Baldwin delivered the opinion
of the court;
This is an appeal from the decree of the
Kdge of toe Superior Court for the Eastern
strict of Florida, conSrmlng the daim of the
appellee to sixteen thousand acres of land, pur
Buant to th^'acts of Congress tor the adjust-
ment of land claims in Florida.
In the court below the petition wai in due
form as prescribed by law, presenting a proper
cftse for the exercise ol jurisdiction by the
The claim of the petitioner was founded
his application to tlie Governor of East Florida
for a grant of sixteen thousand acres of land.
for the purpose of erecting a water saw-mill
thereon and the supply of timber therefor;
which was granted by the governor in cont ' '
eration of the benefits which would thereby
dound to the province. The grant was made
the IBth of May, ISIQ. but with the precise
eondition "that until lie shall establish said
mill, this concession shall be considered as n
made, and without any value or effect un
that event takes place." The mill was built
18II, pursuant to this condition, and in due
Krformance thereof. On the IBth of May,
16, a snrvey of Ave hundred and twenty
acres waa made at the place called for by the
petition and grant; another survey of the
residue of sixteen thousand acres was surveyed
at another place on the ISth of Novembei,
IB18; the first survey was declared valid by
the court below, the second was rejected. The
claim waa adjudged valid, and the survey of
the residue of the land directed to be made
at the place called for in the grant. On an in-
SIS'I spection of the whole record. *we are
of opinion ttiat the title of the petitioner Is
valid to the Ave hundred and twenty acres sur-
veyed at the place called for by the grant, and
not valid as to the survey of fifteen thousand
a)s hundred and thirty acres; but that his
title is valid to fifteen thousand four hundred
Mid eighty acres of vacant land which be has
■ right to have surveyed, adjoining the said
anrvey o( Bve hundred and twenty aeraa, ao-
eording to the decree of the court below.
Their decree is therefore affirmed.
This cause came on to be heard on the tran-
script of the record from the Superior Court
for the District of £ast Florida, and was
argued by counsel; on consideration whereof.
It ia ordered, adjudged and decreed by this
•oort, that the decree of the said Superior
Coart for the District of East Florida in this I
MOM be, ud tba skom i* barebj -*""^
tbad. '
•THE UNITED STATES, Appellants, ('tlS
CHARLES F. 6IBBALD, Appellee.
Spanish land grant in Florida confirmed.
A petltlcQ was presented to ttie Gorercor »(
Florida, beFore the ceaslau ot the terrlcorj to ttie
UDlled States, aetttng fortti that tbe petttloner was
desirous at crecliog machinery for sawing limber.
etc.. snd asking '-permJshloD lor Ibat pur;iose, with
""" lOlng survpy of the grant or land
ot n
n will [
permit the said lorm ; uhleb Ji
conltaued suppl; o( tlmtwr Tbe permlasloa was
granted, without Injur; to third persoas, under
of the mill, the graat of the Isud. which will be a
square of fire rallies. Id order that he mij use the
timber, absil be dE do effect." A survey was made
III; could be bad at the place deacrlbed : and the
residue or the grant, sli thousand acres, was sCter-
wards survefed tn other places, at dlBiituceH o(
mcnced the erection ot a mill, wbtdi was nllpr,
niirdi carried away bf floods. Id 1S2T anolbcr
— ■ - '■i_i. _j„ flea I mud liY ure
.as dea
. 18:i8, anjiner miii
I mcnced. which went Into ouetutlnn In
rt of least Plorlda con
thousaQd acies, sod re-
grantee was entitled to
cres. He)d
Bv the eighth artjcle of the
» ol c
idltlooB Dt tbelt
after the date of tbt treaty, as waa limited
'" ' be«i decided bj this
ly the eighth
_,_fn to the United S(i
lowed to the owners of U
tborlly of Spain, to fulfll
Id the "caae' o( Arredondo. I'bat aa to Individual
rlghta, the treaty Is to be considered ss dated
lis rstlfleallDa.
It has been decided, In Arredoado'i caie. tt
that proTlsloD of Ibe treaty as to the performni
of the conditions '- '- -— — "— ■■ — --
ers o( land by o>
to persoDB who b
land. In rlrlue o
Hon of the proiiac
ipcal 1.
I grant ; and that. Ii
"ion of
APPEAL from the Superior Court of Florida.
This was a claim to land in Eaat Florida pre-
'A to the Superior Court of East Florida,
by the appellee, founded on a concession for
Ixteen thousand acres of land, made by Don
ose Coppinger, Governor of the Province of
East Florida, to Charles F, Sibbald, the claim-
on the Ed day of August. 1816, for five
miles square, ot sixteen thousand acres of land.
On the leth day of July, IBIS, the petitioner,
Charles F. Sibbald, presented his petition to
Governor Coppinger, supplicating his permla-
to construct a water saw -mi 11 on the
: called Six Miles, 'alias Liltle [■Sl«
Trout Creek, on the north side of the River
St, John's and that of Nassau, the creeks of
which empty their waters into the said Bt.
John's River; with the corresponding surety
for the grant ot lands embraced in a line of
two and a half miles to each wind, making a
qiure of five miles, or its equivalent, in the
:vent that this situation will not permit the
lama form; which land, he says, will insure
the continued supply of timber.
On the Sd of August of the same year, the
governor made his decree, granting the permis-
sion solicited, under the express condition that,
until the estabttohment of the mill, the grant
of the land, which will be of two miles and a
437
»u
SUFBKUE COUBT OT TBI UhIXB BuTIS.
half to each wind, naklng ft aquara of ftn
milca. in onler that he ma; use the timber, etc.,
Bhatl be of no effect.
Ten thoiisanil acres of this land were nt-
vej-ed upon Little Trout Creek, agreeably to
the calls 6f the grant. Four thousand ftcrei
were surveyed by George J. F, Clarke, publii
«urT«yor, on the 8th day of February, 1H20, i:
Tumbull's Swamp, at Mosquito, more thaa
-oae hundred miles to the southward f[
4rst location, and between which and it there
ii no water communication except
open sea; and the remaining two thousand
acres were, on the 20th of February, 1S20, sur-
veyed by said Clarke, at Bow Legs Hammock,
about the same distance to the west, and from
the first survey, between which and those
thousand acres, there is no ws'
cation at all.
The petitioner alleges that in compliance
with the condition of said grant, he, in (])(
year 1S19, expended six or eight thousand
dollars in the erection of a water Mw-mill,
which was nearly completed; but that, owing
to various difiicultics, and the embari-asHmcnts
of eald province, the mill did not go into
That, since the cesnion of the FloridsB to
the United States, he has expended upwards
of twenty thousand dollars in the erection of a
ateam saw-mill on the tract of ten thousand
Acres, which was completed, and some time in
full operation; but that in the month of July,
Iti28, it was entirely destroyed hj fire, and
that he has since commenced another, upon a
much more extensive scale. This last has been
completed since the filing of the petition in
this ea»e.
The answer of the district attorney denies
the power of the governor to make this grant,
and puts the claimant to the proof of all the
allegations contained in his petition, and in-
siets that he has not complied with the condi-
tion of the concession.
ai5*] •That by a decree of Governor Cop-
piHger, bearing date the SOth of October of the
tame year (White's Compilations), the term
of six months was limited for the performance
of the conditions of all grants of this nature,
and that it was then especially decreed by said
governor that all those grants, the conditions
of which were not performed at the expiration
of said six months, should be null and void, and
that the lands should be annexed to the class
of public land; which decree was subsequently,
to wit. on the ISth day of January, )81S, by
another decree of the same governor, fully
affirmed; and that the said Charles F. Sibbald
did not erect the said saw. mill within the said
term of six months, and that, consequently,
said concession, at the expiration thereof, be-
came null and void, and the lands were annexed
to the class of public lands.
The original concession in this case was not
to be found in the archives, but a copy certi-
fied by Thomas de Aguihir, late secretary of
the government of the province, waa produced
and proved.
The proof in relation to the building of the
mills is BuhstantiaUy as stated in the petition,
and a duly certiftea copy of the survey was
also produced.
Ptrints submitted on the part of the United
Slates in the court below:
<sa
of ttl«
2. A* to the validity of the surveys of four
thousand and two thousand acres.
This was also considered as settled against
the claimant by the decision of this court, and
the claimant has appealed as to this part of the
3. Did Sibhald, the grantee, perform the con-
dition of this concession, either literally or lub-
stantiallyl
The Superior Court decided in favor of thf
petitiuner lor ten thousand acres, and agsintl
the claim of the petitioner to the six thousand
Both parties appealed to this court.
Mr. White, for appellee.
This is what is called a mill grant ; a grant
of a prescribed quantity of land, on the exptees
condition of establishing a water saw-mill oii
'the River St. John, and Cone's, or [*S16
waier-course, called Six Miie or Trout Crsel..
No specific time is limited in the d'.-cree withi i
which the mill was to be erecti-d and ^ut i'> i
operation. The governor contented hinisi'l' '
with declaring that, until the memorialisi I
should "settle (establish) the said mill, tbi i
grant shall be of no effect."
The evidence in the record is ample to abov
that this condition was fully complied with
The first mill was built in ISID and carrie
away bj a freshet. The second was built in
1827. and was in operation until 1828, when ii
was destroyed by fire, in July. 1B23. Tli-
third and last was built and went into open^
tion in 1829.
The United SUtc* v. Richard, 8 Peters, iH'
This is a case of a similar grant made bj th'
same governor, which was confirmed by thi-
Supreme Court, of a later date than thia. In j
that case, as in this, the condition was not oom I
plied with until after the 24th of January. i
1818. That case also decides that these grants I
conveyed the lands, and not the timber merely. ,
The grant to the claimant was mode on tfat-
2d of August. laiS, and the certiHcate of the
secretary bears date on the succeeding day.
The memorial asks for an order of survey,
"together with suitable warrants to survey the
ground;" and this is granted by the decree,
cDUcedo Bu pcrmisso. Under thia authority, the
Surveyor-General surveyed the prescribed quan-
tity of lands in detached parcels, on the 2d of
&1ay, 181S, and ini the 8tb aJid 20th of Feb-
ruary, 1820.
In Richard's case, above referred to, the sur-
veys were made in detached parccia, and at a
later period than this. The United States *.
Clarke, 8 Peters, 436. This, and tlie other
.ses decided at the same term, all affirni the
ithority of the governors of East Florida to
ake these grants.
Where the grants had issued before the Mth
of January, 1818, they recognise the authority
of the governors to make orders of survey for
the lands granted, and of the survey or -geaerkl
execute them after that date. But thetwurt,
that case, rejected a claim to land taken op
under an order of survey, changing, as to a
part of the land, the location specified In th*
origiuaJ grant; which order waa made on tha
Peters 10.
18M
Tub URtreo Statu v. Siibaid.
ESth of Jknusry, 1819, ctinHidering it u equivK-
Irat to a new grant; and the supposed analog;
between that case and the one now undn- i
aide rat ion prescuts the onl; queatioD which
SIT*] 'A brief eiaminatioa of that cue
ita application to the one at bar, will ahow the
want of analogy between them.
On the 3d of April, IHie, George F. Clarke
obtained a grant of five milea aquare, with i
ipecific location "on the west aide of St. John')
River, above Black Creek, at a place called
White Spring." It was an absoluttt title for
•0 much land at a Bpeeifled place, with the
uaual proviso, "without prejudice to others.
But Mr. Clarke wag not satisfied with the laud
granted to him. Although there was buIUi
vacant or public land at the specified plai
make up the quantity granted, yet it "did
answer nis expectstion;" and stating this fact
in his petition to the governor, on the 25th of
January, 1813, he asked that the surveyor
might be authomcd to survey the one half of
the quantity spccilled in the fint grant at
other place, viz., "on the hammoclc called
Lang'a and Cone's, on AliEzel's Lake." And tbe
governor so ordered it. This raised the quea-
Uon in that caae.
The court beld that thia change of location
eould not be aulUorized by the governor after
the 24tb of January, IglS; that the grant to
Clarke conveyed the land described in it, and
no otber; and that a permit to survey other
land was, in effect, a new order of survey,
which the governor had not power to make on
the 25th of January, ISID, The principle la not
queitioned; but that is not tbe case of the
preaent claimant.
The memorialist, Charles SibbaM, applied for
a situation on which lo erect his mill, which he
specified, and for a grant of land of five miles
square, "together with suitable warrants for
the BUrvey of ground, which occupies two and
a half miles on every aide, making a square of
five miles, or an equivalent quantity, in case
thia aituation may not allow of the said figure."
And "tbe same U granted" by the governor —
cODcedo su permisso.
The reference in the decree to the memorial
makes the tatter instrument part of the decree
itself. Then it is a grant or concession of a
tract of land two and a hnlf mites oa eyery
aide, making a square of Sve miles, on Trout
Creek, or an equivalent quantity elsewhere, i=
c*Me that situa(ii73 ma? not allow of the said
figure- In other words, the grajit, quoad the
IcKation, was alternative. It was to be sur-
veyed on Tro-,:t Creek If that situation should
•'^'3 :; t-'.e Mcd Sguie; that is, if a sulTicient
uuantity 'A vacant or public land should be
found t^jer*: but if not, authority was given
t4 tak! dp the deBciency, "its equivalent,"
Sit*] *It was apprnhended at tbe time the
gnat was issued (August 2, ISIS) that the
reqnisite quantity of vacant or public land
would not be found on Trout Creek. Thia is
manifest by the language of the memorial, and
the decree which adopts it.
The power to change the location as to auch
deficient quantity, to search for an equivalent
ebe where, was therefore given by tbe grant it-
•alf. It ia not a new order of aurvey granted
ff b ad.
1818, authorising a change of location i
Clarke's case ; but it is a contingent authority
to change the location embodied in the grant
given on the 2d of August, 1B16; at a time
when the powers of the governor were not re-
strained by the limitations in the treaty. The
total want of analogy between it and the esse
of The United States v. Clarke will therefore
be obvious.
The governor, in this case, grants to Charles
Sibbald a tract of land of five nilea aquare, to
be surveyed at the place apecifled in his me-
morial. Trout Creek, if a sufRcicnt quantity o(
vacant or public land should be found there;
but If not, then to be surveyed elsewhere,
where an equivalent quantity of vacant land
could be found. It was, in other words (so far
as regards the quantity which might be da-
flcient at Trout Creek, from the want of a auf-
Scient quantity of vacant lands there), a grant
of land without a speciflc location, and tbe ob-
jection resolves itself into the inquiry,
"Whether the governor bad power to make such
a grant on the 2d of August, ISIS." If the
question were now of first impression, it would
seem to be free from difncjlty.
The governor grants to the petitioner a cer-
tain prescribed quantity of the public domain.
What part of this domain would be embraced
in the grant waa uncertain at the date of the
concession, because of the uncertainty whether
tbe prescribed quantity of public land eould bn
found in the place where the petitioner de-
sired, and tbe govemiH' was willing that the
grant should be laid: sed id certum est quod
certum reddi potest; and the governor pro-
vided the means by which thia certainty should
be attained. The memorial asks for and the
decree grants, a certain quantity of land at a
particular place; and, contingentlyi that a part
of it may be aurveyed elsewhere, "together
with suitable warrants for a survey" of thia
land, or its equivalent.
The decree allows the prayer, and directs the
issue of "tbe appropriate certificate from the
secretary's office in customary form." That
certifjcstc in customary form was the copy of
tbe memorial and decree, and these were tbe
warrant to the surveyor to determine the con-
tingency *on which the authority to [*S1*
change the location would arise.
Tbe power was properly delegated to the BUT*
lyor. because ttie contingent authoritj to
change the location depended upon a fut
(whether there was a sutlicient quantity of
vat-ant lend on Trout Creek) which it waa the
appropriate duty of that officer to ascertain.
Tbe execution of the warrant by the survey of
land, in pursuance of the authority thus given,
rendered drtain that (the location of the land)
which was before uncertain, and tbua com-
pleted the petitioner's title.
But looking to the decision heretofore made
I the varioua cases from Florida, even thia
argument seems unnecessary. Tbe treaty de-
clares valid oil grants made "by His Catholic
Majesty, or hie lawful authorities." That the
Governor of East Florida was one of theae law-
ful authorities was decided in Clarke's case.
The Governor of East Florida, wbo, It is thus
ascertained, was authorized to grant lands in
that territory, did, fai point of fact, nalu this
s»
SUPUMK COCIT or lUK UXITED STATKa,
grant; with thli Kratingent Authorltj, to
change tbe location, \a due form.
And the court tay in that caae, "a grant
made by a governor, if authorized to grant
land) in hia province, is prima facte evidenci
that hia power was not exceeded. Tbe connec-
tion between the crown and the governor justf-
Aea tbe presumption tbat he acts according to
his orders. Should he disobey them, hii hopes
•ife blasted, and he expoaei bimaetf to punjah-
■nent. Uis orders are known to himself aiid
those from whom they proceed, but ma; not
ba known to the world."
court add, "he who would controvert a
self tbe burden of showing that the officer has
transcended the powers conferred upon him, or
that the transaction ia tainted with fraud."
The time was when these principles were re-
sitted with the utmost confidence, but they
have now the sanction of judicial authority.
This grant by Governor Coppinger, with tbe
contingent authority to change the location,
then, is prima facie evidence that he did not
exceed his power in making it. But still fur-
ther, it ia entitled to the aanie conaideration in
this court as it would have received "if the
territories bad remained under tbe jurisdiction
it Hia Catholic Majesty," by the authorities
^r Spain.
SSO*] *We have an opportanity to know
ivhat that consideration was.
The grant was mude in 181G; the exchange
of flaga took place in 1822. During the inter
Tening time, the territories remained "under
the jurisdiction of Hia Catholic Majesty."
The surveyor fa entitled to the benefit of the
principle which is common to all ofBcera
charged with the performance of public duties.
Under the grant of Governor Coppinger, the
lands were surveyed so far as vacant lands
were found at the spot deaignated by the
grantj and, when these were exhausted, the
surveyor aougiit, as be waa required to do by
tbe terms of the grant, an equivalent elsewhere,
mnd returned his surveys to the proper office, as
he was bound to do. The presumption that ha
did these things, in al. verb., that he did hia
duty, is the neceaaary result of the principle.
How it corresponded with the fact, is manifest
from the conduct of the Spanish authorities.
The memorialist took possession of bis lands,
built and rebuilt his mills, and bis title waa
never questioned by those autboritica.
it seems wholly unneoeaaury to extend these
The Attorney -General, for the United States,
contended that there were some material words
in the grant to Richard (8 Peters, 407) which
■re not to be found in the grant under the con-
sideration of tbe court. The words Skre, in
Richard'a case, "a grant of an equivalent
quantity."
This grant Is also of a square of five miles,
and the plain import of the term* is that tbe
•urveys shall not be disconnected.
Tho grant is made on the limited application
for laud at a place desi^ated for sixteen thou-
sand acres. Under this grant ten thousand
«crea were surveyed at this plaos, and after-
wards two tracts one hundred riIIh nB, iw
of four thousand, and one of two thousand
acres. The Court of Florida on this aceoont
properly refused to confirm the two last snr-
Tbere is another ground of objection. Sib-
bald had not perfarmed the condition of ths
grant. It Is expressly declared that until tka
condition Is performed it shall have no ^eet.
The aaw-mil] was not constructed until tbrco
years after the grant was made. In the into'-
val, on the 2t)th of October, 1810, Gorcmor
Coppinger had made an order limiting tbe exe-
cution of all such grants to nx months;
White's Compilations, 290.
It was entirely competent for Governor Cop-
pinger to make an order 'limiting the [*Sai
performance of such a condition to six months
Arredondo's case, 6 Peters, fl91, and no title
vested under the grant until the condition was
executed; or, if be had, until performance, an
equitable title, he waa bound to comply with
the pondUion.
If the petition of Sibliald had prayed for an
equivalent in land elsewhere, in tbe event of
his not being able to obtain the requisite quan-
tity at one place; no objection on tbe ground
of the aeverance of the surveys would be mad*.
But the petition Is lor an equivalent at tlia
No permission from Governor Coppinger to
take the land in any other place is shown, and
the act of the surveyor without such authority
is of no avail.
In Clarke's case tbe words are, "or ita
e[]uiva1ent." 8 Peters, 440. But tbe court de-
cided tbat tbe land described ia the petition,
and no more, was gmnted.
Mr. Justice Baldwin delivered the opiniMi of
tbe court:
These are cross appeals from the decree of
Lhe judge of the Superior Court of East Florida,
on the petition of Siiibsld, praying for a con-
firmation of his claim to sixteen thousand acre*
uf land, pui'Buant to tbe acts of Congress for
adjusting land claims in Florida.
The petition was in tbe form prescribed bj
law, presenting a case proper for the exerclao
of the iuriadicUon of the court below. On th»
■""" of July, ISIB, tbe petitioner applied to
Governor of ]<:aBt Florida, setting forth
that he was desirous of erecting machinery for
sawing timber on Little Trout Creek, on the
north side of the River St. John's and that ol
Nassau) "he aaka permlsaion for that purpoaa,
with the corresponding surety of the grant of
land of Bve miles square, or ita equivalent, in
tbe event that this situation will not permit
the snid form; which land will insure the con-
tinued supply of tiiiiher."
" . tbe 2d of August, 1818, the governor de-
, "the permission solicited by this party
ia granted, without injury to third persona;
under the express condition that until the ea-
tabliehment of the mill, the grant of the land,
which will be a square of five milea, in order
that he may use the timber, shall l>e of no e(-
' etc. Pursuant to thia grant, a aurvey
made on the £d of May, 1819. of ten thou-
sand acres, at the place called for in the grant.
In February, 1820, four thousand acres war*
"'eyed in another placa, called Turntmll'a
r«t«rs 1».
UK
Tux L'kiteu States i
Swamp, At the dittanee at tliirtj miles from '
the flnt survey 1 and afterwards, the rpsidue,
112*] two thousand acrei, wa* Burveycd, "at
a place called Bow Legi Hammock, at the
distance of twenty or thirty miles. In 19l:i
Sibbald commenced the erection of a saw-mill
OB the leu thousand acre tract, and continued
it till its eompletion, except the dam; which
would have been completed had not the ne-
([Toet and horsea employed been stolen; and
while the millwright was abaent in pursuit of
Ihcm. the dam was carried away by a freshet.
The work was then abandoned, after an ez-
nenditure of more than $6,000. In September,
18ST, another mill was built and in operation;
which was destroyed by Qre in July, 1B23. An-
other was commenced in October, 1828. which
went into operation in June, 1829, and so con-
tinues to the present time; is of seventy horse
C»ei, and calculated to saw twenty thousand
t of lumber a day.
By the decree of the court below, the claim
of the petitioner was confirmed as to the ten
thousand acre survey on Trout Creek, and re-
jected as to the two remaining surveys of four
thousand, and two thousand acres; from which
decree both parties appealed. Various objec-
tkint to the claim were made on the hearing,
but only two were relied on here.
I. That the grant was on a condition prece-
dent, which was not begun to be performed till
the grant became forfeited by the order of
the Rovemor, made the 2eth of October, 181S,
declaring all grants made in eona id e ration of
mechanical improvements to be made, to be
void if the coacJitiona were not performed in
aix months. It ia unnecessary to decide on the
effect of this order; or whether by the acts
which authorize the courts of Uisaouri and
Florida to decide on claims to lands therein,
Congress intended to assert a right by forfeit-
ure for condition broken, to lauds which had
been once legally graoted. The evidence in
tliia and the other-cases which have been de-
dded ia very full and clear that no grant has
ever been annulled or revoked by the Spanish
■athorities for any cause, and that there is no
inatance of a governor having granted land
which had been before granted on condition ;
knd it may well be doubted whether it would
b«ve been re-annexed to the royal domain had
the province remained under the dominion of
the king of Spain; nor is there any provision
of mny law of ConRress which specially requires
the court to inquire into the performance of
conditions on which grants were made-
Bj the eighth article of the treaty of cession
br Spain to the United States, the same time
U Blfowed to the owners of land so granted,
»t%^J to 'fulfill the conditions of their grants
■fter the date of the treaty as was limited in
the granta. We have heretofore decided, in
the caae of Arredoudo, that as to individual
ri^ta, the treaty Is to be considered as dated
ftt it* ratiflcstioa 16 Peters, 74B, 74B) ; the erec-
tion of a mitt in 1810 or 1S2Q would, therefore,
b« in time to save a forfeiture. No time was
limited in the grant, and no greater effect can
be given to the governor's order fixing the time
for the performance of conditions, than if the
ItanitatiOD had been contained in the grant.
W« have Also decided that thia provision of the
tr— ty ia not eonflned to ownen in poasesaion
• Ik. ad.
of lands by oeeupuMj or residence, hut exteoda
to all peraons who have a legal seisin and poa-
session of land in virtuo of a grant (0 Fetera,
743), and that in the situation of the provinea
and the claimants to land at the time of a
cGxaion, it was enough if they would show n
performance of the condition cy pres. We
are therefore of opinion that the petitioner be-
gan the erection of the mill in time to save
the forfeiture, and that he has shown the per'
formance of such acts as amount to a compli-
ance with the condition, sccording to the rules
of equity wtiich govern these cases,
S. It is objected that the terms of the grant
do not authorise a survey of any part of the
sixteen thousand acres, in any other than in
the place called for. The petition wa* for a
grant of sixteen thousand acres, or its equiva-
lent, if ita situation would not admit of thia
form; the permission solicited was granted,
which by reference makes the petition a part
of the grant. It is in IM proof that the
quantity could not be surveyed at the place
desiguated without interfering with land
whii^h had been previously granted; which
would have been contrary to the express words
of the grant, "without injury to third persona."
It is also in proof, without contradiction, that
in order to obtain the ten thousand acres on
Trout Creek, it was neces:iary to go round one
or two different tracts, and that no more could
liave been obtained anywliere near it of any
value; the shape of the survey is irregular, and
not at all in conformity with the rules pre-
scribed to surveyors; which require the sur-
veys to be in rectangular para llelog rams, the
front of which on rivers, creeks and roads not
to exceed one third of tlie depth. It was cer-
tainly tlie intention of the petitioner aod tiie
governor that there should he a grant of live
bich was the usual quanlitj
inted
usider
the <
I of
hink that taking the petition
and grant together with the manifest inten-
tion of both parties, the equivalent for any
deficiency on Trout Creek may be referred to
quantity 'rather than to the form of ['SSt
the survey. It would be a very rigid construc-
tion of the grant to make the privilege of
altering the shape of the survey an equivalent
for tlie loss of six thousand acres of land. That
such was not the intention of the governor ia
evident from the evidence of Mr. Fernandez,
who testifies that on aacurtaining that part of
the land had been previously granted, he in-
formed the governor, who gave Sibbald the
right to locate his grant at any vacant place
suitable for the erection of a saw-mitl. The
BurvGVor-gercral of the province testified that
be fllli'd that office in Kust Florida from 1811
to 1B2I, that he located grants by surveying
any land which was designated by the grantee,
to which no objection vas made by any of the
authorities under the Spanish government, and
which was considered an inherent privilege of
the grantee without any order from the gov-
ernment. We are therefore of opinion that the
title of the petitioner to the whole quantity of
land specified in the grant is valid by the law
of nations, of Spain, the United States, and the
stipulations of the treaty between Spain and
the United States for the cession of the Flor-
Maa to the latter, and ought to be confirmed t«
441.
BarMtM* CouiT cm the Unitd Stakb.
bin, Bccording to the aeTeral Burvey* nude Ai
returned with the record. Wc do therefore
order, adjudge and decree, that the decree of
the court below, conflrming the title of the pe-
titioner to the ten thousand acrea on Trout
Creek, be, and the lame is hereby affirmed.
And proceeding to render such decree u the
court below ought to have rendered, thii court
doth further order, adjudge and decree, that
the decree of the court below, rejecting the
claim of the petitioners to the land embraced
fn the surveyB of four thousand acres, and of
two thousand acres, as returned with the
record, be, and the same i« hereby reversed
and annulled; that the claim of the petitioner
to the same be, and the same is hereby con-
flrmed and declared valid; and that tlie sur-
veyor of public lands in the Eastern District
of Florida be, and is hereby directed to do
and cause to be done, all the acts and things
enjoined on him by law in relation to the land*
within said surveys.
Thia cause came on to be heard on the tran-
script of the record from the Superior Court for
the District of East Florida, and was argued
by counsel; on considetation whereof, it is or-
dered, adjudged and decreed by this court, that
the decree of the said Superior Court, confirm-
ing the title of the petitioner to the ten thou-
S2S*J sand acres on 'Trout Creek, be, and the
same is hereby affirmed, and that the residue of
the decree of the said Superior Court be, and
the same is hereby reversed and annulled. And
tbia court, proceeding to render such decree as
the aaid Superior Court ought to have rendered,
doth order, adjudge and decree, that the claim
of the petitioner to the land embraced in the
surveys of four thousand acres and of two
thousand acres, as returned with and contained
in the record, is valid, and thut the same be,
and is hereby confirmed. And it is further or-
dered, adjudged and decreed by thia court, that
the surveyor of public lands in the Eastern Dii
trict of Florida be, and be is hereby directed t
do, and cause to be done, all the acts and things
enjoined on bim by law in relation to the lands
within said survey. And that the said c
be, and the same is hereby remanded to the
aaid Superior Court to cause further to be done
therein what of right and according to law and
justice, and tn conformity to the opinion and
decrM of this court, ought to be done.
The same decree was ^ven in the caa
Sibbald, appellant, t. The United Sutea.
Sa««] 'JOHN SMITH, T, Appellant
THE UNITED STATES.
lobn Smith. T., claimed a conflrmstlon of s
arant of land bj Che Goveraor-General of Loulsl-
.n> m«de on the 11th of Februarr, ITOB. JjmM-
a ceded bj France to the Coltwl
Sot crssloD. E
lelalD — » ,
4«S
Jeeted, and tbat decrae was afllnned tr th* to
the law ot nalloas, the terms of tfai! trcst*. and tbi
___ .._. ._ ... term ''prt
those which are eiecatarj
•'propKtj"
title, lucbotM
hiclj lie in MD-
,, _s well as tlioK
:n this respect the relation ot
. - ._-lr govemment Is sot chtQfcd.
The new Eovemment lakes the plscc oE tkat wlilcb
has paaspd awaj." 1 Peters, BI2.
Tbe Act ol CoDtreas ot 1804. which •abmltltd
claims to land In iJauislana to Judicial cognlssnEe,
cooflaed the court to such claims as had been lefsl'
Ij made, sraotpd or Issued before the 10th ot
March, 1804, which were protectpd bj the Trwll
ot ltM3. and might have been p<'rrei;ted into s eoni-
ilete title under the laws, usages and euslDnii d
Ipaln. it she had cantlnued Co bold the goveniiDcDl
It was also made the dutj ot the court to m-
duct the proceedings an all petitions arcordlng to
the rules at a court Of equltr. and Co decide npm
them according to the priaclplea at Justice, and the
rdlng to t
ordinani _ . ._
le c la Ira originated. In thus conaeDClDg
be made d ,
claimant tor land In Ulssouri, the United BlatM
waived all rights which the treaty could give tbra
as purchaserB (or a valusblc conilderadon wKhout
notice. Thej bonnd themselves (o carry Into ipe-
cltlc execution by patcDt, every graoC, conerdos,
warrant or order ot survey which, before the lOtb
ot March, 1S04, had created any legal or eqult^Ii
right ot property In the land so eltilmed: so UisI
in every case arising under Che law. one gesenl
question was preseQCed tor tbe coujlderatlua ot
equity could, according (o Its rules and the Uwi
01 Spain, causider the conscience o( tha king to be
so sifected by his owo. or the acta ot the lawful
autbarltles at the province, (hat ha had become i
trustee for the clsimsat, and held tbe lend cialmtt
by an equity upon it amounting to a acveranc* af
BD much fi'Om his domain, iKfore the loth ol
March, ISU4. in Missouri, end the 24tb of Janeair.
1S18. In Florida, tbe periods Hied by the law b
one case, and the treaty In
The principles wblch hai
the decisions oC the court, lo reiaiign lo einims lv
lands under grants from the crown of Spain, or the
ofBcers of Spain authorized to make graota
No claim to land la Missouri can tie cuDllrmtd
under the sets ot 1824 or 18^8. udIceb by * Kiant,
trsct ot land deacrlUed therein. lo mske it capslik
ot some dcflnltr ■ ■— ' - '- '■•
Marcb. 1804!
established br
nteif or iseued before the ioib of
... by so order to survey -any ('itST
„. ._ tlty. without any descrintlon or llmils-
tlon as to place, which shall have been locattd hy
a survey, made by a proper omter bi'forc thsl liuir.
any claims to the court, except aucb as. un cosllnB-
allon, could be aurveyed and patented, and on re-
fection would be theacefortb held and taken to be a
part ot (he public lands : tnaugh cases of claims to
make a prospective severance of particular liaets
from the general domalD. when the grnat was whol-
ly IndeQalte, would require a dlstlnn prorlalon.
Bpsln never perinltted lodlvlduals to locate Iheir
grants by mere prlvale survey. The grants were an
authority to the public surveyor or hli deputy ts
make the survey as a public trust, (o protect tbt
royal domain from being cut up at the pleasure o(
the grantees. A grant might be directed to a pri-
vate person, or a separate oDclal order glveo to
make (he survey; but without either, 1( would not
be a legal execution of the power.
The laws Of the United Htates give no antbo^ty
lands ; be may make Hue* to designate the eitcat
rigbts thereby. Neither io thl«.*o"lhe1word of
has It seen any evidence of aQy"law of Siisli
tage. which mskei
local regiiladoDs, __ .
private survey operate to se
royal domain. On the coo
which have t>een exhibited
;e by tl
ir-geofr
I the f
his deputies, by (he apeclsl order of the gorerpor
or Intendant, or those who represented them. Ne
gn-iioment gives any validity to prlvale surveya
-,( Its warrant or order of Burrey, and there li n«
reason to think that Spain was a solltarr eicw-
retwa !••
SMtTU V. tUK UliniD SlATM.
niircl'MCtloo'ot"th»"Aci at ifi^sV'wiVtiTbaV t'hii
mir( biTC notblne (o do . Its d
- -•—-'— -n the MlldllT of bin
ON appeal from the District Court of th«
United States lor the Diatriet of Miuouri.
This case was aritued at Januar; Term, 1830,
bj Mr. BeBton fur the appellant, and Mr.
Wirt for the United States. The court held it
under advisement for the reasons stated in the
ease of John Smith. T. r. The United SUtes. 4
Peten, 611. Tlie ease is fullr (Uted in the
opinion of this court.
Ur. -Instice Baldwin delivered the opinion of
the court:
Porsoant to the provisions of the Act of 1B24
tor the adjustment of land claims in the State
ol HisBonri, John Smith. T. filed his petition in
the DistHct Court on the 3d at October, 1827,
claiming a confirmation ol his title to tpo thou-
•and arpents of land in that State, in virtua of
a Spanish eoncessinn to James St. Vrain. a resi-
328*] dent of 'Louisiana, legally made before
the 10th of March of ISOl, by the proper an-
thorlties. He alli-ged that his claim was pro-
tected by the treaty between France and the
L'nited States for the cession of Louisiana, and
'night have been perfected into a complete title
inder the taws, usa;^ and eustomi of the gov-
rnment under which the same originated, had
>iot the sovereignty of the country been trans-
lerred to the United States.
His claim is founded on a petition of James
St. Vrain to the Governor-General of Louisiana,
in November. ITBS, praying for a grant in full
pnperty to him and his heirs of ten thousand
superficial arpents of land; with the special
permission to locate in Mparste pieces, upon
different mines. o( what nature they may be,
salines, mill seats, and any other place that
^hall appear suitable to his interest, without
obliging him to malie a settlement ; which grant
as prayed for was granted by the said covemor-
generml the 10th of February, 17SS. He alleges
that he became owner of the grant by purchase
from St. Vrain and wife before the Act ol 1S24
and has caused several parts thereof to be lo-
cated in Miasoun. which he speciRei in the pe-
tition ; and prays that the validity ol bia claim
mar be examined by the court.
On the lace ol the petition, the setltioncr
shows a case within the provisions of the Rrst
aeetioa of the law of 1824, which directs the
«oart to take jurisdiction to hear and determine
tt.
The petition of St. Vrain to the GSovemor-
General of Louisisna states that misfortunes
bad induced him to settle in Louisiana at St.
Genevieve, where he had rendered himsell u»e-
hil in repressing ■ certain party: that his
lEBOwledge of mineralwy had induced his father
to make over to fafm the contract which he had
with the government for the supply of a cer-
tain quantity of lead. To enable him to com-
ply With this contract, and to insure him an
imiorable existence, he prayi for a grant as
specified IB tbe peUtlon of Um appellani At
• L. ad.
tbe foot of tUs petition there wa* the following
"New Orleans, 10th of February, ITM.
Granted.
"Tbe Baron De Carondelet"
The original petition, with this entry upon
it, was produced before the laud commissionera
in Missouri in 1BD6; tbe aiguature of the baron
was proved to l>e In his handwriting, and tbe
residue to be that of the secretary of the goT-
ernment. The original was lost in 1807 or 1808
but a copy eertilled from the land records was
produced at the bearing in the court tielow, and
competent evidence 'was given of the [*Slfl
existence and loss of the original ; the District
Court did not, in their decree, decide on tbe
effect of this evidence, nor do we think it
necessary to eonaider it; for the purposes of
this case, the genuineness of the grant and Its
loss are assumed. On the 6th of February, 1808
St. Vrain and wife, in consideration of $5,000,
conveyed the concession to tbe petitioner by
deed duly recorded.
In 1811 the petitioner caused a survey o( two
hundred and ninety-four arpent* of land to be
made by a private surveyor, pursuant to the
concession to St. Vrain; other surveys were
afterwards made in like manner of several
tracts specified in the record, varying in quanti-
ty from one thousand two hundred to fifty ar-
penta. several of them including lead mines;
the one for fifty acres being on a mill seat Tbe
claim was acted on by the United States board
of land commissioners in Miaaouri; who. in De-
cember, 1811, gave their opinion that it ought
not to be confirmed. The District Court of
Missouri have also rejected it by their final de-
cree; from which the petitioner has taken an
appeal to this court, in tlie manner directed by
the Act of 1824.
At the JanuaiT Term in 1830, this cause,
with that ol Soulard, was very ably and elab-
orately argued by the counsel on both sides:
they were tbe first cases which came before
ua since the law giving juriadictioD to the
District Court of Miasouri to decide on claiiu
to land in that State, subject to an appeal to
this court. The subject was a new one l>oth t^
the court and the bar; the titles and tenures of
land in Louisiana had never undergone a judi-
cial investigation, which could give the court
such info:mation aa could lead them to any
satisfactory conclusion. Hence, and notwith
standing the full argument in these caaei, there
seemed to be much matter for conaideratioa in
the developments to be made of the laws, usages
and customs of Spam, in relation to granta of
land in Louisiana. These cases were held un-
der advisement.
At the next term, finding that appeals bad
been made in cases from Florida, arising under
a law authorizing a judicial decision on claims
to land in that territory, on the consideration
of which the whole subject of Spanish titles
would be thoroughly examined, these cause*
were further postponed till the ensuing term.
One of the Florida caaea was then decided on
principles which did not apply to tiiem, and it
was thought that still further information must
be presented in some of the numerous cases be-
fore us for final adjudication, 'and a [*SS9
further postponement was therefore deemed ad-
visable. At each sueeessive term lioee. It has
«4t
330
Sdruik Conn of tbb UKttm States.
been our duty to decide on cUIma to l&nd tm-
der the government of Spain, if not la all the
aapecta in which thej can be presented, at least
in those BuAicieiitly varied as to enable uh to
decide this case on principles entirelj satisfac-
tory to ourselvea. It was never doabted by
this court that property of every description in
Louisiana was protected by the law of nations,
the terms of the treaty and the acts of Con-
gress; nor that in the term "'property" was com-
prehended every speciea of title, inchoate or
perfect, embracing those rights which lie in
contracts; those which are executory, as well
as those which are executed. In tbie respect
the relation of the inhabitants to their govern-
ment is not charged. The new government
takes the place of tliat which has passed away."
4 Peters, 612. Such, in 1630. was our general
view of the Missouri ca^es. Our difficulty was
in ascertaining the powers of the governor-gen-
eral, of the intendant and his sub-delegates, and
the local governors or commandants of posts to
make grants of lands ; what acts either oper-
ated by way of grant, concession, warrant or
order of survey ; so as to sever any portion of
land from the royal domain, and create in it a
right of property in an individual. The law sub-
mitting claims of either of these four descrip-
tions to judicial cognizance confined the court
to such as had been legally made, granted or
issued before the 10th of March, 1804, which
were protected oy the Treaty of 1803, and
might have been perfected into a complete title
under tne laws, usages, and customs of Spain,
if she had continued to hold the government of
the province.
It was also made the duty of the court to
conduct the proceedings an all petitions accord-
ing to the rules of a court of eouity, and to de-
cide upon them according to t)ie principles of
justice, and tlie laws and ordinances of the
government under ivhich the claim originated
in thus conaenfiijg to be made defendants in
Suity at the suit of every claimant for land in
issouri, the United States waived all rights
which the treaty could give them as purchasers
for a valuable consideration without notice
They bound themselves to carry into specific
execution by patent every grant, concession,
warrant or order of survey which, before the
4th of Itfarch, 1804. had created any legal
or equitable right of property in the land so
claimed; so that in every case arising under the
law one general question was presented for the
consideration of the court: Whether, in the
S31*] given 'case, a court of equity could, ac-
cording to its rules and the laws of Spain, con-
sider the eonacience of the king to be so affected
by his own, or the acts of the lawful author-
ities of the province, that be had become a
trustee for the claimLint, and held the land
claimed by an equity upon it amounting to a
severance of so much from his domain, before
the 10th of March. 1804, in Missouri, and the
e4th of January, ISIS, in Florida, the periods
fixed by tlie taw In one ease, and the treaty in
the other.
In all our adjudications on either class of
eases, we have considered the term "lawful
authorities" to refer to the local governors, in-
tendants. or their deputies; the laws and ordi-
aancea of Spain, as oompoaed of royal order*,
•f those of the local authoritiea, and the UHge
««4
made, granted or issued, is legally made by the
proper authorities. We have as uniformly
held that in ascertaining what titles would
have been perfected if no cession had been made
to the United States, we must refer to the gen-
eral course of the law of Spain, to local usags
and custom; and not to what might have been,
or would have been done by the special favor or
arbitrary power of the king or his officers. It
has also been distinctly decided, in the Florida
cases, that the land claimed must have been
severed from the general domain of the king by
some grant which gives it locality by its terma,
by a reference to some description, or by ■
vague general grant, with an authority to lo-
cate afterwards by survey mailing it definite;
which grant or authority to locate must have
been made before the 24th of January, 18IB.
That where the grant is descriptive, a survey in
any other place is unauthorized ; and that where
a survey was made of part of a descriptive
grant before that time, an order or permission
to survey the residue elsewhere, made after-
wards, is void, in contravention of the terms of
the treaty and the act ot Congress; it being in
effect and substance a new grant, made after
the power of the governor to make grants had
ceased. That where the grant was speciiie, a
survey might he.made after the time fixed by
the treaty, and where the grant was vague, or
contained an authority to locate, which was ex-
ecuted by a survey made before, it was valid.
The United Sutes v. Clarke. S Peters, 466. 4«I.
The same principles apply to the cases In
Missouri, between which and those from Florida
there is (generally speakingjno other difference
■than that, as to the latter, the treaty ['33S
annuls all claims acquired alter the 24tb of
January. 1818; while the Act of 1824 limits
the jurisdiction of the court to casea of daims
made in virtue of grants, etc., made before the
10th of March, 1804. This limitation on the
power of the court as effectually prohibits their
confirmation of grants, etc. subsequently made.
or titles acquired, as il they had been declared
voidd by the Icrms of the law. or the Louisiana
Treaty.
In his petition to the governor-general, St.
Vrain asks for a grant in full property, of ten
thousand arpenta, to be located at his plessnre
as to place, time, or quantity ; it was considered
by him as authorizing locations throughout
Louisiana, not only while under the govern-
ment of Spain, but after its cession to the
United States, and its division into the two ter-
ritories of Orleans and Missouri. So it was con-
sidered by the petitioner Smith, after he pur-
chased from and held under St. Vrain; and
such appears to he the true construction ol the
pelition. The grant is contained in the onr
word "granted," which must be referred to
everj'thing prayed for in the petition; Its ob-
ject was not to obtain a grant merely in tha
upper province, or it would have been addressed
to the local governor i it must have been in-
tended to extend to both provinces, as it was
addressed to the governor-general, whose power
was general over both. He, by his grant, with-
out qualification or restriction, has acted la tbs
plentitude of his authority, which authorlica no
aonatniction that could limit it to Um upper
18M
Smith t. Thi Ukiibi Siatb.
pravliioe more thftn the lower; a limitation to
•ither would be bj an arbitraiy decision, with-
out rule; to would anj construction Guttiog
down tha coDceaiion, bj striking from it an;
right or privilege prayed (or.
This, then, was the nature and effect of the
(rant, to vest in the petitioner a title i
property to all the lands in either provini
taining saline, mineral, or where there were
mill aeata; which he might at any time locate
in quantities to suit his own pleasure, or at any
other place that might suit hit interest.
When the cession of Louisiana was com-
pleted by the surrender to the United States,
the title of St. Vrain remained precisely as it
was at the date of the grant in IT9B{ there 1*
no evidence that he bad done, or offered to do
any act, or made any claim, or demand, assert-
ine or affirming any right under the grant.
With all the ungranted salt springs, lead mines,
mill scats and valuable spots in Louisiana at
hia command, he held his grant dormant ii
SSS*] pocket for eight 'years under the
Spanish government, without making
tonpttng to make one location under it.
On the 4th of March, 1804, then, no land had
been granted to St Vrain; there was not an
arpent on which his right had any local habita-
tion; until a location was made, it was a mere
authority to locate, wbiofa be might have ex-
erciaed at his pleasure, both as to time and
place, by tbe agency of a public surveyor,
anthorized to separate lands from the royal do-
main by a survey pursuant to a grant, warrant,
or order of survey. At the time of the cession
■othing had been so severed, either by a public
or private mrveyor, or any act done by which
the king «ould be in any way considered an a
trustee for St. Vrain for an; portion of the ten
thouaand arpents; and there was no spot in the
whole ceded territory in which he had) or could
claim an existing right of property. An indis-
penaable prerequisite to such rigfa^ was some
act by which his grant would acquire such lo-
•alitj aa to attach to some spot; until ttus was
done, the grant could by no poasibility hi
0 way been affected by this grant
in March, 1804. The only pretense of any
right was one which extended to every vacant
rt in Louisiana, to be located in future, at
option of the grantee; it so continued till
1811, when the first location was made by the
petitioner Smith, by a private survey, on part
of the lands be claims. It is evident that he
had no other right to this tract of land in
March, 1804. than he had to all tbe vacant
lands in Louisiana. Had his claim been pre-
■cnted to the District Court while it remained
thus indeffnita and incapable of deSnition,
there would have been no case for its jurisdic-
tioa, under the Act of 1824, to confirm or re-
ject the claim. The sixth section provides that
on the confirmation of any claim, the surveyor
■hmld cause the land speciSed in the decree to
ba nirreyed, a plot thereof to be made, delivered
ttf the par^, and a patent to issue therefor;
If rejected, the seventh section directs "the
laad apecifled in sneh claim shall forthwith be
beld Hid taken as a part of the public lands al
the United State*." By the eleventh section.
If the landa decreed to anf cUimaiit have been i
sold or disposed of bj tbe United States, Of
:have not been located, the party interested may,
after the land has been offered at public sale,
enter the like quantity of land in any land-
office of the State. These provisions show
clearly that Congress did not contemplate the
submission of any claims to the court, except
such as, on confirmation, could be surveyed
'and patented, and on rejection, would [*3S4
be thenceforth held and taken to be a part ol
the public lands; though cases of claims, to
make a prospective severance of particular
tracts from the general domain, when the grant
was wholly indefinite, would require a distinct
provision. If confirmed, no land coiild be
specified in the decree, none could be surveyed;
nor could lands which never had been the sub-
ject of specifle claim, described in no grant or
survey, t>ecome a part of the public lands,
within the meaning of the law after the decree,
if there had not oeen some assertion by the
claimant of their having been once his property,
by a severance by grant. In providing for a
case where the land had not been located, it
was the evident intention to refer to grants of
land by some description before the lOth ot
March, 1S04, which had not been surveyed; it
is certain that it could not apply to this. Should
this grant be confirmed, it must follow Its
tenor and purport; the decree must affirm its
validity, not merely to the quantity of land,
but with the right of location according to its
express terms, which gives St. Vrain the un-
limited choice of the most valuable portions of
the public lands. It would be in direct viola-
tion of those rights which constitute the great
value ot the claim (w^ich were not the quantity
of land granted, but the unlimitert power of
selection) to make auoh decree that they were
secured to him by the law of the nations, the
treaty and acta of Congress, as inviolable, and
in the same decree to limit him to the selection
of such lands in Missouri as should have been
offered at public sate, without any bid beyond
the minimum price of the public lands. This
would necessarily deprive him of the very spots
to which he would be entitled under our de-
cree, whenever he might choose to appropriate
them by a lawful survey.
We are therefore clearly of opinion that no
claim to land in Missouri can Im confirmed
under the acts ot 1SZ4 or 1828, unless by a
grant, concession, warrant or order of surrey
for some tract ot land described therein, to
make it capable of some definite location, con-
sistently with its terms, made, granted or
issued before the lOth of March, 1804, or l^ an
order to survey any given quantity, without any
description or limitation as to place, which
shall have been located by a survey, made by a
proper oRicer before that time, as was Soulard's
case. Spain never permitted individuals to lo-
cate their grants by mere private survey. The
grants were an authority to the public surveyor
or his deputy to make the survey as a public
trust, to protect the royal domain from being
cut up at the pleasure "of the grantees. [*XSft
A grant might be directed to a private person,
or a separate official order given to make the
survey ; but without either, it would not be a
legal execution of the power. No such survey
wM made on tUa frant, io that It bad not i^-
sss
Sunua Cmm or ths Uititbd Staxka.
Uched to the Und eUimed Kt tha time nmmed
in the law.
We tuvB, then, to inquire whether a privfttc
niTT^, made in 1811. could be bo connected
with the grant of 1T96 u to operate by relation
to make out a title to the land olauned in
March. 1804.
The tawi of tha United BUt«a gi*e ao au
Uiority to an individual to aurvej hii grant or
elaim to landi; he may mark lines to deaigTiate
the extent and bounda of hie claim, but he can
aoquire no rights thereby. The only effect
which we can give to this private aurvey ia to
eonaider it at a aelection by the petitioner of
that piece of land, aa a part of what he waa
entitled to locate in virtue of his general grant.
Aa the United States have put themaelvea in
the place of Spain, we muat view thia aelection,
thus made, as if Louiaiana had never been
eeded to them. But neither in thia, or the
ord of any of the eaaee which have been before
na. have we aeen any evidence of any law of
Spain, local regulation, law or usage, which
makea a private aurvey operate to aever any
land from the royal domain. On the contrary,
all the surveys which bad been exhibited in the
caaes decided were made by the surveyor-general
of the province, his deputies, the ipecial order
of the governor or intendant, or those who rep-
resented them. No government gives any vaiia-
itv to private aurveya of its warrants or orders
01 survey, and we hare no reason to think that
Spain waa a solitary exception, even as to the
general domain, by grants in the ordinary
mode for a apecifle quantity, to be located in
one place. A fortiori, where a grant, aui gener-
is, might by ita tenus be so split up aa to cover
every aaline, mineral and water-power site in
the whole territory. Of all others, the survey
of such a grant ought to be made by an author-
iied officer. If the grant was a lawful author-
ity for such selection, ita execution by survey
ought to be so supervised that the selections
should be made in a reasonable time, quantity
of land and number of spots selected.
We cannot believe that Spain would have
ever consented to the exercise of such a right,
by an individual, over all the most valuable
portions of her domain, when she did not per-
mit the appropriation of her ordinary lands to
be so made; still leas that a claim of thia de-
scription would have been perfected into a eom-
Clete title bad she remained in poaaesaion of
ouisiana, or that it ought ao to have been.
SS9*J 'The claim waa unreasonable in its nat-
ure, excluding the government from all control
over locations made on a sweeping grant, which
by amall subdiviaiona might be a monopoly of
every valuable spot in both provincea. Such a
grant, with such privilegea, has no ecjuity in it
aa againat the government of Spain or the
United SUtes aUnding in their place. There
appears no law, usage or custom to authoriae
it; and It is incompatible with those rights
which every government reserves to Itself, of
directing by ita own officers the surveys of iU
lands, either on speclBe graota or orders of sur
vey for vacant lands.
The negative evidence In the record ia also
powerful to lead to the same conclusion. The
unprecedented privilege granted to Bt Vrain
waa of immeoae value, If asserted In time, be-
"« other apprapriatlona wars made o* tht
ble by waiting till otbera bad obtained grants
(or them. Neither he nor the petitioner Smitb
have in any way sMCounted for the delay. Iliej
have shown no selection made, no application
to a public or even private surveyor to make
any survey during the eight years whidi
elapsed, from the date of the grant till the oes-
sion. The grant does not appear to have been
recorded or entered in any Spaniah office, ex-
hibited to any Spanish officer, or any notorietr
given to it by any aaaertion of ri^ht under if
With such powerful reasona for action, it ia iMt
a harsh construction of thia conduct of St
Vrain, to attribute it to the conviction that tha
Spanish authoritiea would not have sanctioned
hia claim. Tha power of the governor-general
being supreme, his power would not have bees
invoked m vain if tne grant waa good; and >o
officer in the province would have disobeyed
his order to survey on the selectiooa beug
It ia not for us to say whaL if any, aeti
would have given St. Vrain an equity in any
definite piece of ground; it suffices (or this eais
that he nad none while the country waa under
the government of Spain, and that the peti-
tioner Smith haa acquired none sinoe the eas-
aion by any acts which he haa done, or caused
to be done in making the location specified in
his petition.
It is for another branch of the government ta
decide on the claims of the petitioner, under
the third section of the Act of 1828. With
that we have nothing to do; our duty termi-
nates by a decision on the validity of his title
by any law, treaty, or proeeedinga under them,
according to those principles of justice which
govern courts of equity. Being clearly of opin-
ion that the claim of the petitioner to any of
the 'land claimed by his petition is not [*SV
valid, and ought not to be confirmed.
The decree of the District Court is affirmed.
This cause came on to be heard on the tran-
script of tlie record from the Diatrict Court of
the United States for the Diatrict of Missouri,
and was argued by counsel; on conaideraticn
whereof, it is ordered, adjudged and decreed
by thia court, that the decree of the said Dis-
trict Court in tliia cauae be, and the same It
hereby affirmed.
THB UNITED STATES, Appellea
emor ot Upper LouUlaos sranted tliteen b
srpenia ot iind oesi certain riven named In the
gi'SDt. witb dlrectloDt Co surrej the inmc la a va-
CBDl place □( the rofal doratle : but no snrveji
wsa made belore the eeatlan al Loulalatia to the
United BUtes. Br tbk Court: As the srant eoa-
islDpd DO dcicrlptloti of the laod Erantcd. and wat
not located wltbln the time urescrlbnl br the Act
ot CeofTMa et tks lOtb of Maccb. ISOl. It man
Peter a 10.
Haoebt r u_ v. Tbx UHim Statu.
33S
itfMOr wItUa ttt polBt decidad bj ChU ccniTt
tk* cmM of Jobm Smith, T., and eaauot b* co:
ON appMl fran tiw Dlitriet Court of the
Unttsd SUtea for the Dittriel of Miuouri.
Tbe cue ie fnllj etated in the opinion oE the
Hr. Jnitice Baldwin delivered tbe opinion of
the court;
Thia is «n appeal from the decree of the Dia-
trict Court of Miiiouri, rejecting the claim ol
the appellant! to ■iztecn hundred arpenta of
land m that State, for the eonflrmation of
which th«7 had filed their petition, pursuant t«
the prDTJaiona of the Act of 18E4 for the ad'
jiubnent of land claims in that St&te.
The petition waa in the form prescribed hj
tha law, presenting a proper ease for the juria-
diction of the court.
The claim of the petitionera waa founded on
aa application by Haclce; Wher^ to tbe
Lieutenant-Governor of Upper Louisiana, on
the 15th of April, 1802, tor a grant of lixteen
hnndred arpenta of land near the rivera Dar-
dennea and Miaaiaaippi, in the vacant land* of
tbe king, which he ahall point out at the time
of the survey. On tbe IBth of the same month
this application was granted by the lieutenant
goremor, with directiona t« aurve; the quanti-
ty demanded in a vacant place of ^e royal
domain; but no survey appears to have been
Bade before the lOtb of March, IS04.
Aa this grant contained no deacription of the
landa granted, and was not located before the
time pre«crib»d by the Act of 1S21, aubmittine
■ Sa*J 'these eaaes to judicial cognixance, it
cornea directly within the point decided by this
court in the eaae of John Smith. T. v. ~'
United Statca at this tenn, and cannot be
limed. It la therefore our opinion that tbe
title of the petitioners to the land claimed and
dewvibed in their petition la not valid.
Tbe decree ol the Oiatrict Court is affirmed.
nia canac cwoe on to be heard on the tran-
aeri^ of the record from the Diatrict Court of
the United States for the Diatrict of Missouri,
and waa argued by counsel ; on consideration
whereof, it ia ordered, adjudged and decreed
by this court, that the decree of the said Dis-
trict Court in thia aauae ba, and tbe same u
kcrebj afflnnsd.
»4»»7 "ISABELLA »AUKEY. Widow. Jobn
Ze&on Hackey at a). Beira of Jamea Blaekey,
Appellanta,
THE UNITED STATES.
In repeated d
_ tbe Bapreae Court have
amrmfi] tbe ■nlbarltr ot local Kovpiaora. iiBder
a of Spain, to (rant land In L«uI«U|]l
! aame waa ceded bj Spain to Krauce. aud
bare alto alBrmed tbe TBlldlt; of dtacrlp-
■ive arBDts, tbougb not aurrered before tbe llib
of March. IS04. is Ulaaonrl, and thp -^iti of Jao-
narr, 181S, In Florida.
ON appeal from the District Court ot the
United Statea for the District of Missouri.
The CMC is atated in the. opinion ot the
It was argued by Mr. White for the appel-
lants and by Mr. Butler, Attornej-Qeneral, for
the United Statea.
Mr. Justice Baldwin delivered tbe opinion ot
tbe court:
This Is an appeal from the decree of the
District Court of Missouri, rejecting the claim
of the appellants to eight hundred arpents of
land in that State; for the confirmation of
which they had Bled their petition, pursuant
to the proviHions of the Act of 1821 for the ad-
justment ot land claims in that State.
The petition was In the form preacribed by
the law, presenting a proper ease for the juris-
diction of the court.
The claim of the petitioners waa founded on
an application by James Klackey to the Lieu.
tenant-Governor of Upper Louisiana, on thi
13th of September, 1TD9, for a grant ot eight
hundred arpents of land, at a place therein
particutarlv described. On the 14th of the
snine month the application waa granted by the
lieutenant-governor, witli directiona to make
the survey and put the party into poseeasion.
The grant or commission was proved to iiave
been in the handwriting of the surveyor-gen-
eral ; the signature of the lieutenant-governor
was also prttyed to be genuine. The claim of
tbe petitioner was rejected by the Diatrict
Court on tbe ground that the grant was not
conaiatent with the regulationa of O'Reilly,
made in ITTO, and was invalid for the want ol
authority to make it.
'Having heretofore decided that [*S41
theie regulations were not in force In Upper
Louiaiana. this court cannot consider them as
in any way affecting the title of the petitionera.
In repeated deciaions we have aflinned the au-
inority of the local governor to make erants of
land, aud have also affirmed the validity of
descriptive grants; though not surveyed betorc
tbe lOtb of March, 1804, in Missouri, and the
24th of January, 1SI8, in Florida.
But there is another objection to the title of
the claimants, which ia suggested In the decree
of the court below, though it is not assigned as
- — ion for its rejection.
the original petition to the lieutenant-
governor, the land prayed for is described a*
adjoining the land of Mr. Choteau; whereas
the grant to Choteau for the land referred to
was not made until Januaiy. ISOO. four montlia
after the date of Mackey's application, in Sep-
tember. 1799. This waa deemed a circumstance
tending to show that bis grant was fraudulent-
ly antedated, and had It not been explained,
would have induced this court to have directed
an issue to tbe court below to try ita genuine-
k pMt Of land IB M^Qri made by the Ll«i- g' u„ i^^^ la th, ^aae of Chotenu'a heira.
^J'-'Sa' :L£S£Sl ^^'^^'^^ ^'^ •*• daata^l at U.. Ut urn. (9 Pe*«ra. 142. 143). it
Ul
SupRem Cousr
app«ftn tbkt, hy a letter of the 20th of May,
1TB9, the Govei^ or- General of Louisiana direct-
ed the governor of the upper province to favor
all the undertitldngs of Mr. Choteau. In the
evidence giveif in that caje it ima established
that Mr. ChoUau had erected n distillery on the
trmct granted to him in ISOO, as earl; as 17B6,
which WOE occupied and in operation from that
time until the date of the grant, after obtaining
which he enlarged and continued the estab-
liihment at tJie same place. It 1b therefore
perfectly consistent with the date of Mackey's
application that he should refpr to land in the
ooeupatmi and actual possession of Clioteau;
though he had not at the time any grant or or-
der of aurv^. The record in the present case
alio shows that the court below have consider-
ed this subject, and did not think the reference
to Choteau'a land was such evidence of fraud
or antedating of the grant, as to make it their
duty to prevent it from being used as evidence
of title to the land claimed.
The final decree was rendered on the ISth of
January, 1830. On the lOth the court or^tered
that the clerk retain, with the papers on file in
this case, the concession upon which tlii' claim
ia founded, until its furtlier order. On tlie 18(li
the court "ordered that tbe pelitinnrr^ slicm
cause why the concession under whicfi tli? |ie-
S42*] titioners claim 'should not be impoiin<l-
«d by the court." This rule was discliargi^d on
the Sth of February. 1930.
After such evidence as appears on the rpcarJ
In the case of Choteau. and Che proceeilings of
the District Court in this case in relation to
the grant to tbe petitioner, it is fair to presume
that that court was satisfied on their last eiani
ination that the grant to Mackey was genuin<
and not open to any impeachment on account
of the reference to Choteau's adjoining land. It
would be assuming much in this case for this
court to decide, as a matter of fact, that the
grant waa fraudulent and voiil ; the proof of the
signature to and the handwriting of the grant ii
positive and uncontradicted, and tbe reference
to Choteau's land, before tbe date of the grant
to him, is accounted for. We therefore are of
opinion that the grant was genuine, and that
the title of the petitioners derived therefrom is
valid by the law of nations, of the United
States, of Spain, under whose government the
claim originated, and by tbe stipulations of the
treaty ceding Louisiana to the United Statei,
and ought to be confirmed.
It is therefore ordered, adjudged and de-
creed by this eosrt, that the decree of the Dis-
trict Court be, and tbe same is hereby reversed;
and proceedings to render such decree as the said
District Court ought to have rendered, ft is
further ordered, adjudged and decreed, that the
title of the petitioners to the land described in
their petition to the District Court is valid by
the laws and treaty aforesaid, and the same is
hereby confirmed as therein described; and that
the surveyor ot public lands in Missouri be,
and he is hereby directed to survey tbe quantity
ot land claimed In the plaoe described in the
petition and grant, or concession; that he deliv-
er to the petitioners a copy or plot of such sur-
vey, and also do and perform such other acts
and things therein as t^ law are dirwtad.
448
1 Lmted Statki.
PHINBAS BRADL^, Surviving Admlnis-
tratOT of David Ott, Deceased.
Surety bond — demurrer— -bond differing froia
requirements of statute. - —
Ad action was lusUlulied on a joint end Kveral
bocd glYtD bj H. O. and V, to the Uniled States of
Noi-tH AmerJc*: wblcb. alter reclllog Ibnt U. bad
been apijolutvd pajmaaler ot tbe ride reglmeat al
lUu Aimy o! ilie Lalted States, coadltlooed that II
11. Ebsli -viqW SDd irul; eiecute. and tBltbtnlli
dlactiarge. according lo lew, sod to Instmctloos re-
(IS) master afoicBuld ; aoil be, bis heirs, piecutera
a required, tor
time to lime si
jalldtd Ob tbe p
Foresaid, nitb
ted 8 lute* IM
ary lucb
said Job
i'be Act of Congress or tbe Uth ot April, 1814,
provides "tbat all officers ol tbe pa^, commlssair
iiud uuarlei'master'a department, sbsll, pievlons ta
ealei'lng oa the duties of tbeir respective ofllps);
Eiii> goud and sumcieni bonds to tbe United SUtM
fully to accDunt (or all moneys and pulillc nriyiertf
i\r\ ot liar shs'l rtirrct," H. beJame larcclj la-
debted to tbe United State* tor mane; advaaeed to
Ulm as payuissier, and suit was brought against
Ibc sdmiulMiratoi's at O.. one at his sureties. Tbe
bond nol having Mea In Its verj terms Id conform-
Itv witb tbe provisions ot tbe law, tbe sureties
I'lUloied that Ihey were cot bound bv it, because ot
Ibid vui'iance: and because Ibe UalCed Stales bad
□ 0 rieht 10 take say other bond bat tbat prescribed
Bi TUB Couit: So tar a* tbe condition ot tbe
boud teuulred tbe paymaster to account (or mos-
eys received bv bim. It sntwtuntlallv lollows Ibe
Erovlslona ot tbe law : and If tbe bond he not desr-
r void, (rom its not being In all respects la eoo-
formltj wllb tbe law. the United States art CB'
titled to recover.
Tbls case dItTers tram tbe case ot The Ualttd
Btatea v. TIngcy, S I'eters, 115. as tbere was Id
mat tase sn averment. Dot denied, tbat the boad
was obtained froi
.\a rule in pieadlug li belter settled, or opoa
sounder prluclples, than that every plea, Id flls-
cbarae or svoldanre of s bond, sbould state post-
tliely. and la direct terms, tbe matter la dlscbarg*
or avoidance. It li not to be Interred, arguendo, er
""I'd tbe case of Tbe United BUtes v. Tinaej, •
Peters. 115. It was held that tbe United Slates,
being a bodv politic, aa an Incident to tbelr general
right of soverelgntv, have a capacity to enter Into
Ibe Instrumentality of the proper depanments to
wblcb those powei-s are •confided, whcoever [*3**
such coctrscti or bonds are not prohibited by law:
altbough the making ot such coDlracts, or taking
such bonds, may not have been prescribed by any
pre-eilstlng legislative act. Krom tbe doctrine
Eere suted. tbe court have not the slightest Inclla-
atlon to depart : on the contrary, from further re-
t principles
„.„.-.,„.. V. .... Confliltutlon.
That bonds anu other deeda may la
he good In pi "
the Just Intep-
IB many eases
ildue, where tbe
NOTB. — As to oiBcisI bond, and liahlllty of ■ii«>
ties on. see notes to .t L. ei. U. 8. 709 ; 8 I. ed
U. B. BT8 ; 42 L. ed. V. 8, 8Si.
peace officer for the death ot a persoB due to tb*
act or default of the principal or one Ot hta <•»■
Uties. aa* nou 14 11 L.B.A.(N.8.) T66.
P«Mrs lO-
t United Staiks v. Bxablkt.
fc. li ■
• li laoBdcd Id lllfgalllT, bat n
■ doctrlD* well fDuDdeil ia the
Tbu dorlrin? Las Iwf n Dniluldlncd, ind'^'ta se1t"«j
ttrnit coreniiBti or eondltlaci ire leveinble. nvil
isdcppDdent of ncli oLlicr, aud do uut Impart
There Im no •olid dlatlnctloii In caies tike the one
betore the court, between bonds ind olhi^r derds
lllinl bj Ihe eipre*« nru>ilhltj0D_ ot itnt'ilfli. In
Itfal. .
iiceptlonabte
eutlon la wbe
problbliloD*
(raata : but b
i Itlezat conditlous. c<
Folded the whole I
■DO purpoaes.
The Act ot CoDxresi
t IBie Dovhere declitred
taken In the preBci'Dird
!'a',S;'.'S.
the poller of the 'act to di'C are Ihe lioiiil vi
nnd what Ihe law rniiilrrt, Tlils Is Dot
rbe appoli
CD madV b
t of a pay
l-resldent. a
tloD precedent t
authority t
r poUtlu
The mlodeacrlptlon of the ca
name of the plafntlfrs In the bocii u; cbiuei; inem
"The United States of North AmpHcn." IriBtpiid of
Amtrio. la cured bf the BTcnnpnl of [dentlt; Id
the declantlon.
THE United States, in August, 1SZ6, insti-
tuted an action of debt in the Circuit Court
of the District of Columbia, in the Countv of
Washington, apainat Fhineas Brafliey and An-
dre V/mj, adminiHtrators of David Ott, upon
a joint and several bond to thu United States of
!7orth America, executed by Julin Hall, David
Ott, and Nicbolas Vanznndt, on the 2eth day oF
Hay, 1819. The condition of the bond was.
"tlutt whereas the above bounden John Hall
t4>*] is appointed *payiDa<)tFr of the rifle re);-
iiBmt, in the Armj of the United States aforc-
•afd; now, if the said John Hall shall well and
truly execute, and faithfully diBcharf;e. ac-
cording to law, and to instructions received b;
him from proper authority, his duties as pay-
nuater aforesaid, and he, his heirs, executors
or ftdministratoTS, shall regularly account,
wben thereto required, for all moneys received
hf bim from time to time, as paymaster afore-
■aid, with such person or persons as shall be
dalT Ktithorizcd and qualified on the part of the
United States for that purgioBe; and moreover
pmj unto their treasury, such balance as, on a
final settlement of the said John Hall's ac
«aunta, shBll be found justly due from him to
tb* aaid United SUtea, then this obligation
shall be null, void, and of no elTect; othcr-
wiae, to be and remain in full force and virtue."
To this declaration the defenilitnti pleaded
«lx several plras, and iasues were joined on the
■econd, fourth and sixth. The third plea al-
• It. «A.
\egei that the defendants ought not to b«
charged with the debt, by virtue of the sup-
i writing obligatory, ttecause John Hall
appoint^ paymaster long after the Z4th
of April, 1816, aiiJ after the pulsing of the Act
of Congress entitled "An Act for organizing
the general stafl', and making further provision
fc>r the Army of the United Slates;" and that
this was the only law authorizing or requiring
a bond to be given )>y him to the United SUtes
as paymaster, or otherwise, or authorizing any
Seraon to take such a bonil ; and that the said
ohn Uall, aa such paymaster, did not, after
being appointed paymaster, or at any time givs
any bond whatsoever to account for all moneys
and public property which he might receive, in
auras as the Secretary of War should di-
, or otherwise, in pursuance and execution
of the said Act of Congress; nnd that the said
John Hall had not, at any time after hs was
appointed such paymaster as aforesaid, any
right, title or authority whatsoever, as such
paymaster, or in virtue of such his appoint-
ment, or otherwise howsoever, to receive any
money or property of the United States, or any
public money or public property whatsoever,
to he accounted for in pursuance and execution
of the said act of Congress, or otherwise, to the
said United States or to the Eovernmtnt, or any
ollicer of the guvenimcnt o( the said United
States or to any other person or persons what-
soever, in the name, or for or in behalf of the
said United States; nor in any manner to enter
on the duties of his said oHjee or appointment
of paymaster, or to do, perform or execute the
duties, or any of the duties of the same.
•To this plea the United States re- [•S4«
plied that hy an Act of Congress pntitlri "An
Act for orRanizin,'[ the general stuff, and mak-
ing further provision for the Army of the
United States," passed on the 24th of April,
1816, it was, among other things, enacted that
all olTicers of the pay, commissary and quar-
termaster's department, should, previous bo
their entering on the duties of their respective
offices, give good and sufTicient bonds to the
United States, fully to account for all moneys
and public property which they might receive,
in such sums as the Secretary of War might di-
rect; and that after the passage of the said law,
and while the same v^a in full force and effect,
on the 28th of May, 1818, the said John Hall
was duly appointed paymaster in the rifle regi-
ment in the Army of the United States, and in
consequence of his appointment as paymaster
aforesaid, and with the intent of complying
with the act of Congress aforesaid, and by the
direction of the Secretary of War of the United
States, he, the said John ITall, with David Ott,
now deceased, and the said Nicholas B. Van-
sandt, did execute and deliver, In due form of
law, the said writing obligatory In the said
defendant's plea mentioned; and the same was
then and there accepted by the said United
States; and the said John Hall, after the same
was so accepted as aforesaid, and under and by
virtue of his appointment aa aforesaid, did
enter upon the performance of the duties of pay-
master as aforesaid, and did from time to time
receive from tlie United States, as such paymas-
ter as aforesaid, sundry large sums of money,
amounting altogether to more than -^ — - dol-
lars, to be accounted lor bj bim as ■neh p^r>
340
Bunnti CouBT or ibi Unirm Statu.
mftcter tu ftforesaid ; and the uiid United States
■ay, that o( the moneya so received by him the
said John Hall, of the United SUtes aa afore-
laid, the Bum of dollar* waa altogether
uoaecounted for by liim, the said John Hall;
and that upon a final leltlement of the accounts
of him, the said John Iiatl, aa paymaster afore-
said, by the proper ofljcera of the government
of the United States, there was found to be due
from the said John Hall to the United States
on account of moneys received 1^ him of the
United States as paymaster aforesaid, the sum
of diillars, which said sum the aaid John
Rail, in his lifetime, and the said defendants
sinee his denth altogether failed to pay to the
taid United States.
The defendants demurred to this replication,
and assigned for causes of demurrer:
1. Tiiat the bond, with the eonditiona there-
SIT'J of, was not taken in 'pursuance of the
directions, nor under the authority of the act;
but was essentially dilTereni in its purport and
alTect from the snme.
2. That in the replication, the plai^ititTs have
not averred nor shown any authority lor taking
the bond with the condition, nor for the deliv-
•ry and acceptance of the tame; but they have
shown the same was not taken and delivered
and accepted as such bond.
S. That the bond, as described and set forth
in the declaration, varies from the supposed
writing obtifratory in this, that it purports to
be an obligiition to the United States, without
ascertaining what United States; and further,
purports to be the simple oblii^tian of the said
David Ott, to pay the United States the sum of
twenty thousand dolUrs; whereas the supposed
writing obligatory purports to be an obligation
t« some States, described as the United States
of North America; and further purports to be
an official bond to the last named States, exe-
cuted by one John Hall, the said David Ott, and
one N. B. Vanzandt, the two last as sureties for
said Hall's performance of certain ofTicial
duties to the last named States, as set forth in
said condition; and further purports to be a
bond which the government of the United States
of America, or any otllcer or agent of said gov-
ernment, had no power or authority to take or
accept in behalf of the last named United
SUtes.
4. That it does not appear in the replication
that the bond had been delivered by the ob-
ligors, or any of them, or accepted or received
oy any person on behalf of the last named
Lnited States, by any lawful aiithori^; but
the contrary appears.
5. That it docs not appear from the replica-
iion that John Hall had, at any time after his
aaid supposed appointment to the office of pay-
master, any rigiit, title or authority to enter on
the duties of the said office, or to receive, in
virtue of such appointment, any money or prop-
erty of the said United States, or any pub-
lic property or public money whatever; to be
accounted for to the said United States, or
to the government, or any olTlcer or agent there-
of, or otherwise to perform and execute the
duties, or any of the duties of such oflSce; nor
that he had lawfully and officially received any
such property or monty, and failed to account
for the same, or otherwise broken the taid con-
dition; but the contrary appear*.
tsu
< illMal
S. That the bond and condition a_. „
and defective in form and subatonce, and
gether void and contrary to law.
The fifth plea set forth that the defend-
ants ought not to be charged, because John
Ball was appointed a paymaster a long timt
'after the Act of Congress of the Z4th of [*S4I
April, 181S, entitled "An Act for organizing
the general staS," etc. and that at the time w
his appointment that act was and yet is In
force, and was and yet is the sole and only law,
rule and regulation, or authority, under which
any bonds to be given by John Hall to the
United States as paymaster, or in any manner,
can be taken by the United State*, or by an;
officer of the same in the name and behalf of
the United states; and was and is the only
law, etc., by which his accountability aa pay-
master for any mone;? or property of the United
States by him received was or is prescribed,
regulated or governed; and that the said John
Halt did fully account for all moneys and
public property by him a* such pa;^inaster as
aforesaid, and after he waa appointed aneb
paymaster, received in such sunis as the Sec-
retary of War, in the said act of Congress men-
tioned, did, at an^ time after the said John
HaU was so appointed as aforesaid, direct (o
be BO received by the said John Hall as afore-
said, according to the tenor and effect, true in-
tent and meaning of the said act of Congress.
To this plea tie United States replied thai
John Hall, after being appointed paymaster of
the rifle regiment in the Army of the United
States, did, from time to time, receive as such
paymaster large sums of money, aniountiDg ti>
— — dollars, to be accounted for by bim; and
of this amount the sum of dollars was alto-
gether unaccounted for by him; and ttiat upon
a final settlement of bis accounts as paymaster,
by the proper officers of the treasury, he was
found indebted dollars, which he and the
defendants have failed to pay.
The defendants rejoined, stating that .fohn
Hall did not receive the sums of money men-
tioned In the replication as paymaster in such
sums as the Secretary of War, had, at any time
at or before the receipt of such sums, rrajiect-
ively, directed; accordine to the provisions, true
intent and meaning of the said act of Congreaa,
in the three preceding pleas, and in the replica-
tions thereto mentioned, prescribing the bond*
to be given by the officers therein mentioned;
hut the said sums of money, amounting to the
■aid sum of — — dollars as aforesoid, were i»
eeived by the said John Hall after being ap-
pointed such paymaster as aforesaid, without
any direction or order of the said Secretary of
War, directing the same or any of them to be
so received; and so the defendants say that the
said David Ott in bis lifetime was not, dot
were or are the defendants, since his death,
liable, bound, or in any manner aceountabU
to the said United States, by the force and
elTect of the said act of Congress and writing
'obligatory, for the failure of the said [*S4S
John Hall to account and pay to the said
United States the said sums of money, or Um
said sum of dollars so found due from the
said John Hall to the said United States, on ao-
oount of the said large sums of money receiTed
by him, as in the said replication mentioned.
The United State* demurred to this rejoinder.
Tb> Uhitid STATsa t. BKAnxr.
Tht Circuit Conrt decided that the pleaa mad
the teuurren of tbe defendknte were luSleient
in Uw to bkr the recovery of the United Stfttei,
ud gttie iudgneiit for the delendanta.
ne United State* prosecuted thli writ of
The caee wm aTsued bj Hr. Svann and Hr.
Bitter, Attorney -Qeaeral, for the United
Stttea, and by ISr. Key and Mr. Jonea for the
defendant.
The United Statei Inehted on the following
1. lie bond In question is substantially eon-
(onnable to the requiremente of the itatute; and
haring been executed with the intent of com-
plying therewith, la good m a itatutorj bond.
2. If it raries from the statute in any ma-
terial particular, it is yet good, because given
volontarily and tor a lawful purpose.
Hr. Swann contended the bond which bad
been executed by the defend ant'i intestate wa«
■ubatantiaity a compliance with the provision
of the Act of Congreu of April 24, 1918. If
it went beyond the precise direction! of the
law, it stipulated tor no more than wa« within
the duties of the oIBcer by whom it waa given.
It was a votuntarr bond, and was not coerced
from tbe obligor. He was at liberty to accept
or refuse the office; his sureties were at liber^
to execute the bond or to refuse. Even If it la
not a bond under the law, tt ia good and valid
at a voluntary obligation.
The replication states that the bond waa ex-
ecuted under the belief that It waa a compli-
ance with the law, and that as such it was
received Inr the United States. This was vol-
ontarf. It has been decided that the United
States may take a voluntary bond.
As to the objection that tbe bond was taken
to the United States of North America, there
cannot be a valid exception on this ground.
Wa are the United States of North America,
niere an no other United States in North
America. Cited, I Peters's C. C. R. 4fl; S
150'] 'Wash. C. C. R. 10; 1 Galliaon's Rep.
BG; a Peters's Rep. 116, 36S; II Wheat. 184.
Hr. Jones, for the defendant, stated that he
would confine his argument to the Act of Con-
gress of the 24th of April, 1816, and to the
powers claimed for the officers of the United
States to take any bond they thought proper to
ask.
It la conceded that when Eatl was appointed,
he was required to execute the bond; and was
never called upon to execute any other bond
eonformably to the act of Congress.
The bond taken aubstantially varies from the
6 roper bond, and if the securities shall be held
able on it, it will be a case where, notwith-
standing the act of Congress requires a particu-
lar obligation for the performance of certain
duties, it ia in the power of the officers of tbe
tnasury to demand another and a different
bond. Cited, the fifth section of the Aet of
CongreM, vol. S, I«wi U. S. 81.
l£« section referred to requires that the
ofllcer, before entering on hia duties, shall give
full and anfSelent bond for the execution of
tboae duties. There is nothing In the law
which gfvea the option to any officer to talce
maj other bond, or to exercise any powers not
naatad; and there li, therefors, m prohibi-
Uon from so doln^
• Xi. ad.
If a man la commanded tn do an net, he Is
prohibited, from doing any other. If it la an
imperative duty of an officer to do a particular
act, shall he do an act In diaobedience of the
lawl Every principle which applies to the
obligation of contracts forbids this.
Another remark — The Secretary of War ia
commandtxl to take a particular bond, and the
paymaster is commanded to give it before ha
enters on the duties of hia office; and this ia
a condition precedent to hta entering on those
duties as an officer. Until he has performed
the condition, the officer Is in ai>eyance.
The only power to take a bond ia that given
by tbe act of Congress, and no other power can
be exercised than that delegated by the act;
and they are limited by it. The officers of the
United States act merelv ministerially, and can '
OQ^ take the bond eatahlished by the law.
Look at the consequences of authorizing
officers of the United Statee to take bonds at
their discretion, in the form they may estab-
lish. They could require any form they con-
sidered proper; and insist on any terms they
might determine. If such bonds can be taken,
where are the limitations imposed by law
on their powers! If 'this can be done, ["*B1
the officers may raise a revenue at their will,
from those who will surrender themselves to
such powers.
The effects of such a principle would bs
fatal to the government, aa it is inconsistent
with its purposes and its objects.
Voluntary bonds are distinguished from those
which are coerced, by the circumstance thai
the first are given to secure some certain right,
and they may be taken In the exercise of pow-
en, which are to carry the laws into execu-
tion, where no particular form Is prescribed.
In such circumstances bonds may be taken,
provided the person who takes them is ao au-
thorised. But the officere of government are
not general agents, with full powers as such
agents. Their powers are prescribed, and In
this case they are expressly defined, and the
bond waa not given according to the require-
ments of the law.
It ia an absurdity to require a person to give
a bond for property and money he was not au-
thorized to receive. Hie office the govern-
ment imposed by law on the paymaster waa
that he should account for money which he re-
ceived regularly, under officers authorized to
e J It to him. Suppose, after he had given a
nd In the regular form, other property than
that which he had a right to receive as pay-
master had been put into his hands, he would
not have been accountable (or it on his bond:
no such liability could exist. This was decided
In The United BUtes v. Jonea, Administrator,
8 Peters, 39B. There is no difierenoe between
the caaea. In the eoae cited, the contractor waa
not held liable for moneya paid to him on aa-
count of duties not performed within the dis-
trict for which he was appointed. Tet the
contractor voluntarily received Uis money from
the treasury.
Ia this bond within the requisition of the
BtatuteT It is said the bond need not be in tbe
words of the act of Congress, but that It f*
sufficient, If It is substantially the same. If
this means that the obligation ia not undeflned,
' abanaed or altered, and the legal effect of It ia
Ml
an
SdPBCUI CoUBT of TBI UntD) StAIM.
Uie nine u th« «Utut« requires, and in full
aonformity with the law, this U admitted. But
it H denied that such are the stipiilktlons in
thia inBtruineiit. The obligations contained in
it g« beyond the directiona of the law, and call
for dutiei and acts not recognised by it. It
impoeea a different mode of executing the du-
tiea of paj'maater. Tbie is ft violation of the
law. The; are of a diiTerent kind from those
required of him by the statute. Tliis will ap-
pear by an examination of tbe instrument, and
a comparison o( the provisions of the Act of
Congress with it
Sft2*] *ThlB is the ease of sureties, and the
court will look strictly at the inBtrument, and
will not sustain it if it is not legal. It is not
a ca^e in which a court of equity will reform
the instrument, to operate on those who stand
in this situation.
The question of great importance is, whether
the ofUceri of the government can impose upon
those employed under them obligationa which
are not known to the Uw. The Constitution
forbids thia; and it is of the highest interest
tliat powers of this kind shall not be sanc-
tioned. It is moat important that t!ie duties
of an officer shall not be moulded by any but
those who eetabliah and regulate these duties
by statute.
The common law is not to be looked into for
analogies to support such assumptions of
power. The authority of those who hold pub-
lie trusts in the United States, depends on the
precise proviaiona of statutes. It is among the
objects, and ia entirely consistent witli the
prineiples of the common law in England, to
sustain the authoritv of the government, and
to Bupply ft with all necessary powers for its
support and action. But in the United States,
these purposes and prineiplea are supported by
express enactments.
Mr. Key, also for the defendant in error.
The bond in this case is taken under the stat-
ute authorizing the appointment of pEvymaster,
and substantJaTly varies from the bond required
by the statute.
It does not cover all the responsibilities re-
quired by the itatofe — accounting for property
is omitteii. And it extends to other responsi-
bilities not required by the statute. The bond
enjoins that he shall well and truly discharge
all his duties aa paymaster, the law only re-
quired him to give bond to account; and he
has (as the law shows) many other duties. So.
also, as to his accounting with any pei
duly appointed, and to hia obeying ' '
etc.
The Secretary of War has required and tak-
en thia aa the official bond of the pn.vniasteT.
If the bond conforms to the law, he had' author-
ity, but if not, and he had no authority to
Uke it, it ia void.
Two questions, therefore, arise.
1. Where a statute prescribes the bond to be
taken by an officer, can he take any otherl
2. If he does, is it voidt
In our government evijry officer must show a
power for every official act. A power either
expressly given by the Constitution or some
SftS*] 'law, or necessarily implied from a
power so given. If the power is not thus gi>'en,
it is retainpd; or in other words, prohibited.
If an officer doea an act prohibited, it ia
Told. Tliere it no differenee between an act az-
4>1
prcsaly [wohlblted Mid an aet not issuing Imt
l>owers given, where the officer ia restricted to
the poivers given. Where ia the power given to
take this bondT Not in thia law, nor in any
utlier. Not in the constitutional power given
to the president to execute the lawa, for here
he violates or supersedes the law.
It was settled in Tin^ey's case that where the
law of Congress prescribes no bond, the execu-
tive officer may, under the general power to
see that the laws are executed, take a bond.
Why! Hccatise it is "within the sphere of It*
constitutional powera, and appropriate to the
just exercise of those powers." But is this
BO where the Legislature prescribes the bond!
There it is not within its sphere, nor appro-
Srlate to supersede the statute and take a
illerent bond. Little v. Barrerae, Z Craneh, 177,
It ia also settled in Tingey's case that "no
officer has a rij^ht to require a bond different
from that prescribed by the atatute." Whyf
"Because" (say the court) "that would be not
to execute, but to supersede the Uw." It ths
bond be void when required contrary to ths
statute, is it not as void when taken contrary
to the statute I Ths officer muat have a right
to take it. If he has a right to take it, surC'
ly he has the right, and it is his duty to re-
quire it. And would not taking it. supersede
the law as elTectually as requiring itt
Tliere is no power then in any law, or in the
Constitution either, to take or require this
2. What is the effect of itt
It is said to be good because given voluntar-
ily; or, tiiat it ia good aa far as it conforma to
the stntuU, and uoly void for Die residue. Thia
di'ctrine is inferred from two dicta: one in I
Peters'a 0. C. Rep. 46; the other in I Gallison.
86.
These eases, and the esses cited, apply only
to coses where the objections went to the na-
ture of the stipulations, not to the capacity
of the obligee to take, aa here. vn,tre the
bond ia taken between individuala. under do
restraint as to power to make the contract,
no matter bow voluntary, tliere must still be
an officer having power to take voluntary bond*
for the United States; which there is not. Nor
is it good in part; for not being authorized,
nnd tlierefore (accTirJing to our Conatitutioa I
' 'bited from taki" " ' '
not in the i .
aucli requisition is wholly 'void. And [•»ft4
this is shown by the following cases: 3 Wash.
C. C. Rep. 10; The United States v. Uipkina,
2 Hall's Law Journal: 5 Moss. 314; 3 Mass.
lOS; 7 Mass, 9S ; 6 Pick. 227; 3 Csll. 421;
2 Wash, 189; B East. 110; Carter, 230; Cro.
EWz. 529, 737; 2 And. 6fl. S7, 108, 159; 2
Sniind. C9, »0, In notes; 19 Jolins. Rep. 233.
Apain. it is said it was intended to conforrD
to the stitute. The intent cannot make tliat
K-al which la illegal. 2 Craneh, 1T7 ; 2 Call.
510; 9 Crarcli, 39; .1 Mass. 105: 5 Peters, 350.
Uiit at all evenU. Tingey's ease ahows that it
such a bond ia required it ia void. And her*
the L'nited States say in the replication it wmM
reipiired or was directed by the Secretary of
War. It ia therefore void.
Mr. Butler, Attorney -General, in reply.
Upon the constitutional question rafaed bf
the counsel for the defendant, no dispenainc
power* ar* claimed for tba ofScera of the
Peura to.
IBM
The Urited Statu t, Bxadixt.
m
(onrnmmt, ud It Is kdmttted tfakt If Con- 1
gresa have reall^r passed a Uw presaribing the
ezMt form of a bond to be taken, the eiecu-
tJTe ought to conform to It; and that if an
offlcer materiallj depart* from that prescribed
form, and compels a paymaster to execute a
bnid iB a different form, the bond so executed
wlU be void.
But the United States ar« not prepared to
admit that this bond will be void, though ma-
terially variant from the form prescribed by
the statute, if executed voluntarily by a pay-
master, and taken in good faith by the execu-
tive. On the contrary, it will be attempted to
be shown,
I. That if the bond substantially conforms
to the prorisioni of the law it is valid, and
may be enforced.
t. That although It is materially variant
from those proviaions, is given voluntarily, and
for naeful and proper purposes, ft is yet ^ood.
3. That although one part of the condition
of a bond is illegal, it is void, only pn-' tanto,
and is good for all parts of the condition which
■re conformable to law.
lit It is contended that the bond in thia
ease is substantially conformable to the statute.
The precise form of the condition of the
bond is not given in the statute, nor is this
often done. The general tenor and the legal
effect are given, and any bond which will pro-
SB5*] duce and secure *the object of the
law; which will stipulate for the faithful per-
formance of ttie legal duties of the otHcer, in
wbatever form of words will be a good and a
valid bond under this statute.
Borne facts are to he attended to which are
In the record. It is admitted Hall had actually
been appointed a paymaster in the Army. Thia
la in the pleadings, and thus there is an end to
the allegation in the argument that he had not
been paymaster. He must have been appointed
according to the Constitution and to the law.
The next admission is that the bond was ex-
•euted with Intent to comply with the statute.
The third fact Is that Hall, after be had ei-
cent«d the bond, entered on the performance of
his duties. He became a paymaster as to all
third persona, the United States and his sure-
Tb« fourth fact is that Hall received the mon-
ey from the United Slates, and that he has
failed to account for the amount so received.
The fifth fact to be observed Is that the con-
dition contains two clauses: one, the general
•tipiilation for the faithful performance of the
dnliea of paymaster; the other, special pro-
vlsiona to account for money, property, etc.
Th» counsel for the defendant admit that the
laiae clause does not go beyond the requlre-
menta of this act in effect, though it goes Into
■pcciBcations of details, all of which are in-
elnded in the words, regularly to account, etc.
It la contended that the terms of the eon-
dltion extend only to the faithful performance
«f tfae duties of a paymaitter, and do not in-
cinda skill In their execution. The words of
tta bond are, to Account "according to law."
Thia is in effect a eonformit^y to the statute.
!■ truth, all the duties required of the officer
emne within the words "r^ularly account, well
■nd truly execute, and faithfully diioharge."
The duties of a paymaster «m Included In
the boBd, and no Qon tlXM ttww duties; uid
to this extent the suretira are bound. The
subjection of a paymaster to the rules and
articles of war are liabilities for which the
.re not answerable; they am responsi
ble for his duties only.
Thus the bond is substantially a compliance
with the provisions of the law: but it is con-
tended thnt il it exceeds those provisions, and
requires that duties shall be performed which
should be executed, as it was given voluntarily,
is valid, and binds the siiretiea.
The decision of this court, relied upon in the
case of Tfae United States v. Tin^y, does not
deny, but on the contrnrv it sustains, the prin-
"ciple which the United ^tntes assert in [*3S0
support of the claim in this case. In that eaae
the pleadings admitted the bond was "extort-
ed;" but here there is no auch admission; on
the contrary, the bond of Hell, and his sureties,
was voluntarily given, with a view to comply
with the act of Congress,
Sd. The bond woe executed for a lawful
purpose. If Congress bad required such a bond,
it would have been entirely proper and con-
sistent ivith the duties of the officer.
It is said there is no obligee competent
to Uke the bond, and that the Constitution
and the law do not allow its being taken; nor
powers to take voluntary bonda given; that
the executive had autlicrity to take a proper
bond, but none to take any other. All this is
denied by the United States.
To assert these positions is to say that a
bond for acts which are proper is void; and
'Ct what are the dangers to arise from such a
londf No ari^meiits against the instrument,
m the ground of danf^ers. when none can
arise, are available. Nothing was required
hicb was not proper, which was not lawful,
and which the officers of tlie government ought
'- have a full right to insist upon. Does the
ection to lake a particular bond imply a
prohibition to take another bond not incon-
sistent with the prescribed bondT This is
contended for by uie counsel for the defend-
Tbe United States have establiahed a war de-
partment, and the Secretary of War has lull
authority to carry into execution all the pur-
poses of the government, the supervision of
which is within that division of the administra-
tion of public affairs. No prohibition exists in
reference to the action of the ollicer in charge
of that department; it the same is considered!
proper tor the accomplishment of legitimat*
objects.
Is It true that If the Secretary of War omits,
for any reason, to take security from a public
officer, in the precise form which a statute pro-
scribes, that the United States sliall lose the
benefit of that security, if given voluntarily,
and lor a lawful and proper purpose: a pur-
pose that really effectuHtea the law; and the
only objection to which is, that it is more
beneficial to the United States than the one
prescribed I If this be the law, the United
States is punished for the fault and mistake
of their officer.
The oases cited by the counsel for the do>
fendant do not support the principles claimed
for them.
The third question for the determination ol
Uw eourt la whathar *if the conditioB at [*S9I
sn
I Comr or TBx Vnnto Stahb.
the bond U In part illegal Bud void, whicb ii
denied, the whole fa void.
The answer muat be in the negative. There
is no act of Congress prohibiting such a bond,
nor is there an act declaring bonds not con-
forming to this statute void. The rule of law
is, that in all caaes in ivhicb the condition of
a bond can be severed, it is good for that part
which is lesal, and only void for that oart
which Is illegal. This rule always applies,
except where a statute declares the whole in-
■trumen't void. Z Marshall's Com. Law Rep.
61; 12 Wheat. 149.
Th* cases cited on the other side do not Im-
pugn these principles. SherilTs' bonds, tAken
in a fonn different from that which the statute
authorized, are expresslj avoided by 23 Hen.
VI. ch. 10. So are appeal bonds, in wrong
penalties, and which are not devisable.
Mr. Justice StOT7 delivered the opinion of
the court:
'lais is a writ of error to the Circuit Court
of the District of Columbia, for the County of
Washington.
The original suit was debt, on a bond giv>n
to the L'nttcd SUUb by John Hall, Daniel Ott
and Nicholas B. Vanzant on the 2i<th of May,
IBIS, the condition of which, after reciting that
Hall was appointed paymaster of the rifle regi-
ment in the Army of the United States, wll^)
as follows: "Now, it the said John Hall shall
well and truly execute, and faithfully discharge
according to law, and to instructions received
by him from proper authority, his duties as
paymaster aforesaid; and he, his heirs, execu-
tors or adTDinistrators shall regulaily account,
when thereto required, for all moneys received
by him from time to time as paymaster afore-
Haid, with such person or persons as shall be
duly authorized and qualifled on the part of the
United States for that purpose, and moreover
pay into their treasury such balance as on a
final settlement of the said John Hall's ae-
eount* shall be found justly due from him to
the said United States; then this obligation
shall be null and void, and of no elTect, other-
wise to be and remain in full force and virtue."
In the court below, the defendant pleaded
■ix several pleas, and issues were joined on the
first, second, fourth and sixth pleas. To the
third and fifth the United States replied. The
defendant demurred to the replication to the
third pl?a, and rejoined to Uie replication to
the firth plea; to whirh the United States da-
S&8*] murred. Upon 'these demurrers the
court below gave judgment in favor of the de-
fendant.
Upon these pleadings two questions have
been made and argued at the bar. 1st. Wheth-
u the bond is in conformity to the require-
ments of the Act of the 24th of April, 1810
(ch. 60), for organizing the general stafl', and
making further provision for the Army of tlie
United States. Sd. It not, whether the bond
is wholly void; or void only so far as it ia
not in conform!^ to that act.
The act (sec. 6) provides "that all officers of
the paj, ooramissary and quartermaster's de-
Sartment, shall, previous ^ entering on the
utie« of their respective office*, give good and
sufficient bonds to the United States fully to
account for all moneys and public property
which they may receive, in such sums as the
3eereUi7 of War thftU dinot." It ia pUta
that the condition of the bond U not, in its
very terms, in conformity with this provision.
But the argument on the part of the United
States is that, though in terms it varies from
the act, yet, inasmuch as all the duties re-
quired of the paymaster by law begin and ter-
minate in matters of account; that in sub-
stance the condition includes no more than
what the prescribed terms of the act con-
template.
In our view of the case it is wholly unnecee-
sar; to decide this question, because the only
breach alleged Is the nonaccounting for, and
nonpayment of moneys due to the United States
by Hsil, upon a final settlement of hia accounts.
So far as the condition of the bond requires
Hall to account for moneys received by liun, it
substantially fallows the provisions of the Act
of laiG; and if the bond be not wholly void, it
is clear that the United States are entitled to
recover upon the present pleadings in wtiatever
way the first question may be docided.
The second question, therefore, is that to
which the attention of the court will be ad-
drfssed. Upon the face of the pleadings this
muat be taken to be a bond voluntarily ^ivi-n
by Hall and his sureties. Tliere is no averment
that it was obtained from them by extortion
or oppression under color o( office, as there
was in The United States v. Tingey, S Tcters,
115. On the contrary, both the third and fifth
pteaa are ivholly barren of any avcrmentA on
the subject of the giving of the present bond.
All they asaert in substance is that UbII never
gave any suc)i bond as ia required by the Act
of 1816 and that the Act of ISIQ was the only
law regulating the bonds of paymasters, with
some collateral averments not material to be
'here mentioned. Now. no rule uf [*359
pleadings is better settled, or upon sounder
principles, than that every plea in discharge or
avoidance uf a bond, should atiite puaitively
and in direct terms the matters ot di^chitrge
or avoidance. It is not to be inferrei), arpurn-
do, or upon conjectures. Indeed, both tliese
pleas are open to the objection of bein;; mfrely
argumentative; and are wholly destitute in
the teclinifal precision necessary for pleiu in
avoidance or discharpe. The replication of t!>e
United Stati's to the third plea d"i;s. Iimvever.
cNclude. so far as that plea is conctrned. uny
interence of extortion or oppression, crjiore otli-
cii; for it avers that the bond was given with
the intent of complying with the Act of Con-
gress, and by the direction of tlie Secretary of
War.
It may be added that the bond is not only
voluntary, but for a lawful purpose, viz., to in-
sure a due and faithful performance of the
duties of payma.stvr, a circumstance which
must repel any supposition of an oppreaslv* w
unjust deainn.
But passing from these considerations, the
question which Qrst arises is, whether a volun-
tary bond taken by the United States for m.
lawful purpose, but not prescribed by any law,
is utterly void. This question was elaborately
argued In the case of The United SUtes v.
lingey, 6 Peters's Rep. 113, and upon full
consideration, it was there held by this court
that the United States, being a body politic mm
an incidnnt to their general right of sovereign-
. ty, have a capacity to enter into contracts, knd
tmla bonds in OMe* wItUn tha sphere o( Ihair
m
Tk> UmnD States *. UsADtn.
•ODitltntionB] Mweri, and appropriftU to ttia
jatt exercise of tbo«e powers; through the in-
■tnuncntklilj of the proper depi.rtmcDt to
which tho«e power* are confined, whenever Buch
eontneta or bonds are not prohibited by Uw,
klUioui^ the making of iuch contracts, or tak-
ofl such bonds, m*y not have been prescribed
hf any pre-existing l^islative act. The court
laid down this as a general principle only,
without (as was then said) attempting to
enuinerate the limitations and exceptions which
may arise from the distribution of powers In
oar government, and from the operation of
other provisions In our Constitution and laws.
But the court, in applying the principle to
the ease then before tliem, further added, "we
bold that a voluntary band taken by authority
of the proper ofDcers of the Treasury Depart-
ment, to whom the disbursement of public
Bioneya i* intrusted, to secure the fidelity in
official duties of a receiver, or an agent for the
disbursement of public monnys, is a binding
raitratrt between him and his sureties
SeO*] 'and the United States; although such
bcmd may not be prescribed or required li; any
positive law. The right to take such a bond
is, in our view, an incident to the duties be-
longing to such a department; and the United
States having a political capacity to take It,
*e see no objection to its validity ia a moral
From the doctrine here stated we have not
the slightest inclination to depart; on the con-
trary, frcnn further reflection, we are satisfled
titat It is founded upon the loundrst principles
of law, and the just interpretation of the Con-
stitution. Upon any other doctrine, it n'Ould
be roeompctpnt for the government, in many
eases, to take any bond or security for dclits
due to it, or for deposits made of the public
■none?; or even to eiit^r into contracts for the
transfer of its funds from one plaee to another,
for the exigencies of the public service, by ne-
gotiable paper or otherwise; sinca such an
anthority ia not expressly given by law in a
vast variety of cases. Yet, in Dugan v. The
United SUt«s, 3 Wheat. 172; 4 Cond. Rep.
223, and in The PciBtmaster-General t. Early,
K Wheat 136; 6 Cond. Rep. 480, thU right
of the government was treated as unquestiona-
ble, and belonging to its general functions as
an appropriate incident.
lie United States, then, having, in our opin-
ion, a capacity to take a voluntary bond in
caaea within the scope of the powers delegated
to the general government by the Constitution,
through the instrumentality of the proper func-
tionaries to whom these powers are confided,
this consideration disposes of the whole of thnt
part of the argument and the cases cited in
snpport of it, which are founded upon the dis-
tinction between bonds which are given to par-
ties having a capacity to take, and bonds which
are given to parties who have no such capacity;
the former may be good in part, the latter are
wholly void.
That bonda and other deeda may, in many
casaa, be good in part and void for the residue,
where the residue is founded in illegality, but
■at malum in ae, is a doctrine well fotinded in
the eominon Jaw, and has been recognized from
a wy early period. Thus, in Pigot's case, 11
Obl lit. 27 b- it was said that it was unanl-
■Mslr apMd in 14 Hen. TUL 26, 20, that
if some of the eovenants of an indenture, or
of the conditions indorsed upon a bond are
against law, and some are good and lawful,
that in this ease the covenants or conditions
which are against law, are void ah initio, and
the others stand good. And, notwithstandin;;
the decision in Lee v. Coleshill, Cro. Eliz. G20,
which, however, is distinguishable, being
founded on a 'statute, the doctrine has ['361
been maintained, and is settled law at the pres-
ent day in all cases where the different cove-
nants or conditions are severable, and inde-
pendent of each other, and do not import
malum in se; as will abundantly appear from
the case of Newman v. Newman, 4 M. & Selw.
6S, and the other cases hereafter stated; and
many more might be added.
But it has been urged at the bar that this
doctrine is applicable oQly to cases where the
ease stands wholly at the common law, and not
where the illegality arises under a statute; and
this distinction derives countenance from what
was said in Norton v. Simmes, Hob. Rep.
where the distinction was taken between a
bond made void by statute, and by common
law; for (it was there said) upon the statuts
of 23 Hen. VI. ch, 9, "if a sheriff will take a
bond for a point against that law, and also for
a debt due, the whole bond is void; for the let-
ter of the statute is so. For a statute is strict
law; but the common law doth decide accord-
ing to common reason; and having made that
void which is against law, lets the rest stand,
as in U Hen. VIII. IS."
In the case of Maleverer v. Redshaw, 1 Mod.
Rep. 36, which was debt upon a bail bond,
.Mr. Justice Twisden said be had heard Lord
Hnbart say "that the statuU. i. e. 23 Hen. VI.
ch. 9. is like a tyrant; when be comes, he ma.kes
all void. But the common law is like a nurs-
ing father, makes void only that part where the
fault is, and preserves the rest," But Mr. Jus-
tice Twisden added that Lord Hobart put this
doctrine upon the ground that the statute of 23
Hen. VL ch. 6, htui expressly declared that it
any of the sheriffs, eta. should take any obli-
gation In any other form, by color of their office,
that then it should be void.' The case in Ho-
bart's Reports was put by the court expressly
upon this distinction. And it was well re-
marked by Mr. Justice Lawrence, in Kerrison
V. Cole, 8 East's Re)i. 236, that this case is
easily reconcilable with the general principle,
for sheriff's bonds are only authorized to be
taken with a certain condition; and, therefore,
if th(7 are taken with any other condition,
they are void in toto, and cannot stand good in
part only. But that does not apply to differ-
ent and independent covenants and conditions,
in the same instrument, which may be good in
part and bad in part; and so it was held by the
whole court in that case; and notwithstanding
the initrument (a bill of aale and mortgage
*of a ship), was, by statute, declared [*SAS
to be utterly null and void to all intents and
purposes;"' yet it was held that a covenant In
the same instrument, to repay the money lent.
u— <i g{)ii(l as a personal covenant. The same
doctrlTip was held in \V\f^ v. Shuttleworth. 13
Easl'j. Hrp, 87; How v. Sviige. IG East's Rep.
440. M'mte V. i^aU. 8 Term Rep. 411; Green-
wood V. The Bishop of London. B Taunt. Rep.
1^-Baa 3 BauaO. Bep. OB; lb. SO. Williams's
aoU (S).
SUFBEME COCTT OF TBX URITID BTATEI.
IMt
I fee. On this
727; a C. 1 Marah. Rep. 292. In this last
wae the court took notice of the true line of
distinction bptween the casea, vis., between
those caaes where the atatiite had declared the
instrument taken in any otlmr form than that
prescribed hj the statute to be utterly void;
and those csaes (rheie i^ had declared the in-
■tnimeiit void only as to the illegal act, grant,
or conveyance. It was the case of conveyance
affected with simony, so far as the next presen-
mveying the ad-
lAsion the court
Mid "tliere can be no doubt that the convey-
ance of an advowsoa in fee, which is of itself
legal, if it be made for the purpose of carrying
to BO much as goes to elTect that purpose ; and
if the sound part cannot be separated from the
corrupt, it is altogether void. It is not, as in
the case of usury, and some others, avoided by
the positive and inHexible enactment of the
statute; but left to the operation of the cuin-
mon law, which will reject the illegal part, and
leave the rest untouched, if they can be fairly
separated." Here, the doctrine was appH^
directly to the very case of a statute prohibi-
But the case of Doe, dem. Thomson v. Pitcher,
e Taunt. R. 859; S. C. 2 Marsh R. 61, con-
tains a still more full and exact statement of the
doctrine. It was a case supposed to be affected
by the proliibitians of the statute of cliaritabic
u»es (S Geo. IT. cb. 3C.) Lord Chief Justice
Gibiis, in delivering the opinion of the court,
addressing himself to the argument that if the
deed was void as to part it must he void as to
the whole, said; "If the objection had lieen
derived from the common law, ft is admitted
that would not be the cotisc(|uence. But it is
urged that the statute makes the whole deed
void. As the counsel for the plaintiff puts it,*
there is no dllf^rcnce between a transaction
void at common law, and void by statute. If
an act he prohibited, the conatruction to be
3SS*] put on a deed conveying property 'ille-
gally is, that the clause which so conveys It is
void equally, whether it be by statute or com-
mon law. But it may happen that the statute
goea further, and says that the whole deed
shall be void to all intents and purposes; and
when that is so, the court must so pronounce.
because the Legislature has bo enacted; and not
because the transuction prohibited is illegal.
I cannot find in this act any words which
make the entire deed void, etc. I think this
grant of that interest in land, which by the
terms of the grant Is to be applied to a cliari-
Uhle use is void; and that the deed, so far as it
passes other lands not to a diarit.tble use. is
good." Such is the clear result of the Kiiglish
authorities.
In this court a aimilar doctrine has been
constantly maintained. It was acted upon in
the ease of The Postmaster-Oeneral v. Early,
12 Wheaton's Rep. 13a. It was taken for
granted in Smith v. The Uiuted States, 9 Pe-
ter's Rep. 293 ; where the objection, indeed,
was not taken; but the bond was not in exact
oonformity to the statute (act ol the 10th of
Uarch, 1802, ch. 9, sec 16), under which it
Bd^tn
waa given by a p«yinMt«r. It waa alao directly
before the court in Farrar and Brown v. The
United SUtes, S Peters's Rep. 373, wherv tlM
bond, taken under the Act of the 7th of May,
1S22 (sec. 1 ) , wholly omitted one of the daiuts
required by tiie statute to b« inserted in the
condition. The court there entertained Mi
doubt as to the validity of the bond, and only
expressed a doubt whether a breach which wai
within the direct terms ol the omitted clause,
and yet which fell within the general words
of the inserted clause, could be assigned as a
good breach under the latter. But, if the bond,
being a statute bond, was totally void tiecana*
the condition did not conform to ail the re-
quirements of the act, it would have been
wholly useless to have discussed the other
questions arising in the cause. Upon the whole,
upon this point, we are of opinion that there
is no solid distinction in cases of this sort be-
tween bonds and other deeds containin;; eoiv
ditions, covenants or grants, not malum in se.
but illegal at the common law, and those con-
taining conditions, covenants or grants, ille^l
by the express prohibitions of statutes. In
each case the bonds or other deeds are void at
to such conditions, covenants or grants, which
are illegal; and are good as to all others which
are legal and unexceptional in their purport.
The only exception is, when the statute liaa
not confined its prohibitions to the illegal cr.n-
ditions, covenants or grants; but has expresslv,
or by necessary implication, avoided the whole ,
instrument to all intents and purposes. '
*lt has been urged, however, in the [*3S4 '
present case, that the Act of ISIO (ch. eOjdoee.
by necesanry implication, prohibit the taking i
of any bonds from paymasters other than tlioae
in the form prescribed by the si.ith section of
the act; and therefore that bonds taken in anv
other form are utterly void. We do not think
so. The act merely prescribes the form and
purport of the bond to be taken of paymaster*
by the War Department. It is in this respect
directory to that department; and doubtless it
would he illegal for that department to insist
upon a bond containing other provisions and
conditions differing from those prescribed or
required by law. But the act has nowliere
declared that all other bonds, not taken in the
prescribed form, shall be utterly void; nor doe*
such an imnlication arise from any of thi> terma
contained in the act, or from any principle*
of public policy which it is designed to promot*.
\ bond may, by mutual mistake or aocirlent,
and wholly without design, be taken in a form
not prescribed by the act. It would be a ■nrj
mischievous interpretation of the act to sup-
pose that, under such circumstances, it waa
the intendment of the act that the bond should
be utterly void. Notliin;;, we think, but very
strong and express langua^, ahould induce k
court of justice to adopt such an interpretation.
Where the act speaks out, it would be our duty
to follow it; where it is silent it is a suifleicnt
compliance with the policy of the act to de-
clare the bond void as to any eonditions which
are imposed upon a party beyond what the
law requires. This is not only the dictate of
the common law, but of common sense.
We think, then, that the present bond, ao
far as it is in conformity to the Act of 1916
(eh. 69), u good; and for any ezceM beyund
PMara 1*.
Smith t. Vadaiuii bi al.
that ui, if there b« anj (on whtoh w* do not
decide) it ia void, pro tanto. The breach as-
ligned ia clearl? of a part of the cnuditioa (vil.
to account for the public moiifys), nhicli ia in
conformity to the act; and therefore action ia
<reU maintainable therefor. The caae of The
Saperrisora of Alleghon; Count; t. Van
Campen, 3 Wenlell'a Rep. 4B, proceeded upon
grounda of a limiUr nature.
Belor* concluilin;; this nptnion, it mav be
proper to take notice of another objection
railed b; the third plea, and pressed at the ar-
punent. It ia that Hall was not entitled to
in prescribed; and that not having given any
anch bond, he ia not accountable aa paymaatvr
tor Any mon^ received by him from the
Bovemment. We are of a diHerent opinion.
Hall's appointment aa pay master waa com-
plete when his appointment waa duly made by
Ses'l *tbe President and eonflrmed by the
Soiate. The giving of the bond was a mere
niuiaterial act for the security of the govern-
ment; and not a eondition precedent to his au-
thori^ to act a* paymaster. Having received
the public moneys as paymaster, he must ac-
count for them aa paymaster. Indeed, the
condition of the bond having; recited that he
wu appointed paymaster of the rifle regiment,
he uid his relatives are estopped to deny the
fact; and by the terms of their contract they
nadertake that "he shall regularly account,
when tbereto required, for all moneys received
by him aa paymaster aforesaid."
The misdescription of the corporate or politic
eanie of the plaintifTa in the bond by catling
them "The United States of North America,"
instead of America, is cured by the averment
of identity in the declaration; and, indeed, it
kaa not been insiated on at the argument.
Upon the whole, we are ol opinion that the
third Mid fifth pleas, upon which the Circuit
Court gave judgment in favor of tlie defend-
ant, kre bad in hiw, and therefore the judg-
ment ought to be reversed, and judgment there-
on be entered in favor of ibt United States, and
Hw ««nae remanded to the Circuit Court for
f<irther proceedingi.
This cause came on to b« heard on the tran-
•eript of the record from the Circuit Court of
the United States for the District of Columbia,
holden in and tor tha County of WB°h'TT,rrtnn,
uid w*s argued by counsel; on consideration
whereof, it ia the opinion of the court that
there is error in the judgment of the said Cir-
eoit Court in adjudging that the pleadings by
the aaid defendants, in the same cause pleaded,
and the matters and things there contained,
■re cufficient in law to bar the said United
States from havin;; and maintaining their ac-
tion aforesaid. And it Is thereupon ordered
and adjudged by this court that the judgment
•( the said Circuit Court be. and the same ia
hiiilij ravcracd; and this court proceeding to
render aneh judgment as the said Circuit Court
■hould have rendered in the premises, it in
farther eonsidsred and adjudgea by this court
ttat tbe third and fifth pleas, so as aforesaid
rieaded bj the said defendants, are not suffl-
aiaat in Uw to bar tha taid Unitad SUtet of
t b ad.
ants; ivlierefore the said United States ought,
cotwithst^nilin^ the plras aforesaid, to recover
their d*t and damasijs on occasion of the
premises. And it is further ordered and ad-
judged by this court that tbe cause be remand-
ed Ui the sail! Circuit Court for further pi»
cecdinga thcrcun, accoidiug to law.
JOHN VAUQHAN et al.
idxes of tl
o( tfielctrf ConirlBToC lhe"2flt"of Apr"'rMI2!
ON a eertiflcnte of division from the Circuit
Ciiurt of the UniUJ SUtea for the District
of Pennsylvania.
At April session, 1814, an action of ejectment
was commenced by the plaintiff in the Circuit
Court of Pennsylvania; and after various pre-
paratory proceedings, on the 16tb of OctMrer,
1821, a jury having been impaneled; by agree-
ment of the opposite parties, tbe term laid in
the declaration was enlarged to seventeen
^ean; and on the 17th of October, 1821, the
jury found a verdict for tlie plaintiff, against
Vaughan et al. ; on which judgment nisi
was entered. At October sessions, I82G, a scire
facias to revive the original judgment against
Vaughan et al. was issued, and after various
pleas and demurrers, on the 9th of June, 1830,
juiignient was given for the plaintiff.
To April session, 18.14, of the same court, a
writ of alias scire facias, issued at the suit of
the same plaintiff, attain to revive tbe original
i'udgment against John Vaughan, Calvin Cone,
'imotby Stevens. Oliver Stevens, Joseph Ste-
vens, and John Secor, and all other terre-ten-
ants, was returned "made known."
"An;) upon tbe ptaintiffa motion for leave to
enlarge the term, and to issue a writ of habere
facias possessionem, qupstiDns having occurred
before the said Circuit Court, upon which the
opinions of the judges were opposed, to wit.
whetlier leave should be granted to the plaintiff
to enlarge the term, and to issue the said writ;
the points upon which the disagreement hap-
pened were, during the same term, upon the
plaintifTs request, thus stated under the direc-
tion of the said judges, and certified under the
seal of tbe said court to the Supreme Court at
their next session, to be held heroafter; in order
that it may liy that court be finsll^ derided;
the ssid direction of the judges being accom-
panied with this opinion that this is a collater-
al 'motion to amend, depending on the [*SVT
discretion of the court under all the circum-
stances of the case, as they apprar of record, or
4BV
MT
SUFBEUK COUBT Or THE UNITED STATES.
UM
ftn diaclosed bj oiQdavitE; tnd, in their opin-
itm, does not come within the provisions of the
Act of 1802 (vol. 3, Laws United SUtes, 482) ;
but ma the counsel of the plaintiff think other-
wise, and are deairaut a! taking the opinion of
the Supreme Court on the Bublect; the objec-
tion to certifying the point of difference will be
reMTved for their consideration and the clerk
WAR directed to make nut the certificate accord-
The clerk of the Circuit Court, on the Tth
da; of January, 1S'2G, sent up the following
MTtificate, with the record.
"I certify the foregoing to be a true »tate-
ment of the points upon which the opinions of
tbe Judges of the Circuit Court of the United
Btatea lor the District of Pennsylvania, in the
Third Circuit, were opjHJsed. Stated under tbe
direction of the said judges,"
Mr. Ingeisoll moved to dismiss the cause, on
the ground that tbe points certified from the
Circuit Court did not come within the provis-
ions of the Act of Congreaa of the 2fith of
April, 1802.
Tbe conrt ordered It to be certified to the
Circuit Court, as the opinion of tbe court, that
it cannot take co^izance of the question certi-
fied, the cause being one re^tinf; entirely in the
discretion of the Circuit Court, and therefore
clearly not uithin the Act of Cougress of the
Seth of April, 1802.
«6«»] 'THOMAS P. CROWELL, Oarnisbee
of the Chesapeake and Delaware Canal
Company,
JOHN RANDELL, JUN.
JOHN RANDELL, JUN.
Tbe twentj-flftb sectlDn of the Judiciary Act of
lT8n. confpre sppcltiit* JmlBiJIctlnn In the Suprpme
Court from final Judgments and drcrees 1o any suit
Id (he blubpnt court of law or enuilj' of a ^tulr In
wMch a arclBlon In the suit co"t(] be hnd. In three
elaEB<>a nf csepb : t'lr^I. whpre Is dmwn Is question
tbe TalwitT of ■ treaty or slatutp of. on an aulhor-
llT eifrclaed under tbe UDllfd Stslei. and tbe de-
clalDD la atralnnt their tnlldltr. Second, »Iiere la
drawn !□ quesllon thf vBlldlly ot a Datule of. or
an autborltf eirrclBcd under any Stnle, on the
lion, treaties or laws of the TlDltpd Statea, and tbe
declalon la In faror of Biicli, their Talldllv. Third,
clause of tbe rDnaltluIlon. or of ■ treal'v or atat'ite
or, or pomml^-lon belrt unrt^r the United Slatea,
d tbe decision la aealnst the title, rlgbt. privilege
aBld r
3 Jurisdiction at United E
Ifatnre of declilon as altactlni ricbt at rerlaw,
■ea neta to U UR.A. 03.
treaty, scatota or commlaslaiL The aectlini tbta
goes on to provide Ibat no other error sbBll tie a»
Blgoed or regarded a) a eroUDd of reversal In any
Bucb case aa aforesaid, than sucb as ippeara apoa
tbe face of tbe record, and Immedlalefy reiiwrti
(be before mentioned quesllons of validity or eoa-
utea, comitilsaloua or autHortUea In 'dispute.
In the Interpretation of this sectlun of the Act
of 178W, It bus been uniformly beld that to give
tbia court appellate Jurisdiction, tno things abould
have occurred and be apparent Id tbe record:
Klrst, that some one of tbe oueallona stated In (be
that a decision waa actually made tUSreon by the
aame court In the manner required by tbe aecHoD.
If both of these do not apiiear on cbe record, the
t It Bhonid sppiar on the record In tDddcm ve^
or by direct and positive itatement, tlial the
itlon was made, and tbe declatan jilvn by tbt
rt below on tbe very point; but that It is auffl-
t. It It Is clear, from the facta atsted, by Jub(
necessary Inference, Chat the question was
le, and that the court below must. Id order to
e arrived at tbe Judement prononnci'd by It.
'a the very oeelalon of tbat queatlon
I IndlapenBBbte
Judgmf
. Norwood's
Lessee. 5 Crnncb. 344: 2 Cond. Hep. 2TS : Smith v.
The State of Maryland. S Crancb. 281; 2 Toad.
Bep. 3T7: Martin v. llunter'a Leasee. 1 Wheat.
Hep, R04 : S Co-id, Kep MS; Injilee v. rn'.llrtce. 2
Wbeat. Hep. 1163: 1 Cond. Rep. IBS; Miller v.
NIcbolB, 4 Wheat. Rep. 311. 315; 4 Toud. Hep.
4eS; Willlama v, Norrla, 12 Wheat. 117, 124; «
Cond. 'Uep. 4fl2 ; Hlclile v. Starhe, 1 Pet- ['aOB
eras Rep. fls ; Wll"rn v. The Black Hlrd I'rrrti
Marab Company, S Peters'i Rep. 24.1, 2,10; Satierlee
V. UatbeB'Son, 2 Peters'a Itep. 3S0 ; llarrli v. ih^n-
blgbest Jurisdiction of any of tbe States, within
the twcnty-flftb section of the Judlrlnr.v Art. II
must appear od tbe face of the rernrd, let. That
app
been decided In order Id have Induced tbe Jndc-
menis. 4th. That II Is not guiBclrnl to show Ibal
a question ml^ht have arisen or bei-D appM<ai>le In
tbat It did arise, and tna applied 1^ Ihs State
IN error to the Superior Court of the State of
Delaware.
In 1829. John Bandell, Junior, tbe defend-
ant in error, instituted an action of cnven3.nt
af^Btnst the Chesapenke and Dplauare Canal
Company, in the Superior Court of the Slate of
Delaware, on certain articles of agrefment en-
tered into between him and tbe defendants,
relative to the making of a canal tr> uniti' the
waters of the River Delaware with tbo"" of tbe
Chesapeake Bay, and to pass tbrnii^'h tlie States
of Delaware and Maryland. The Chesnieake
and Delaware Canal Company were incorpo-
rated bv laws passed by the Stutcs of Pi-nnsvl-
vnnla, Delawnre, and Marylnnil. and the board
of directors of the compan'y waa established In
the city of Philadelphia,
The declaration alleged sundry breachea of
covenant on the part of the defendants, and
After various pleadings and demu:rers and i*-
petera 1*.
im
Cbuwkll v. Ra.vucii. Shobuakcb *. RAKoeu.
««• ol fkct, judgment v*t rendered (or the
plaintilf ocawnie of the demurrers, and an in-
quisition of damages awarded. Thi^ parties
went to trial on Bome of the issues of fact,
which were found for the plaintiff; and on thf
2Gth da; of January, 1834, the jur; found a
verdict for the plaintifT for $229,535.79, upon
vhich a judgment was entered by the court.
Upon this jud^ent, the plaintiff, on the 6th
ol June, 1834, issued a writ of attachment,
■Oder tiie laws of the Stat/ of Delaware, for
the collection of part of tlie amount of the
same, and of the costs; which was served on
Thomas P. Crowell, aa the garnishee of tlie
Chesapeake and Delaware (^anal Company
The same proceedings took place in tlie case of
Richard Slioemalcer.
The defendants respectively appeared, and
S10*] pleaded that they had •|»o goods or ef
fects, rights or credits o( the company in their
hands at the time o( the attacliments, or at any
time after. The cases came on for trial on
these pleas and issues, according to the laws ol
Delaware, and the parties agreed to a atate-
ment of facts.
In the suit against Thomas P. Crowell, the
agrsed facta w>re aa follou'S:
'John Randell. Jun. recovered a verdict of
a jury in the said court against the said com
pany, on the 25th day of January, ]83t, and
tb'in and there obtained judf^cnt in the said
MniH against the said company lor damai^H
and coats of suit; amounting together to the
sum of (22 n, 9 35. 79. Tbe pleadings, record
and proceedings in the said suit, from the dec
laration to the judgment inclusive, are referred
to, and form a part of this case.
"A writ of attachment was issued upon said
jadgment for the collection of the damages and
costs aforesaid, on the 6th day of June, A. D.
1834, retumahle to the November Term of the
sanv year. The said writ was served upon the
laid Thomas P. Crowell, in the county afore-
said, at the Delaware tide lock, who was sum-
moned by the aherifT of Newcastle County, as
nrnishce of the Chesapeake and Delaware
Canal Company, on the 15th day of June, 1831
At the same time the said Tho'maa P Crowell
lurt. A. D. 1834, at which time and place ths
said defendant (the said Thomas P Crowell, to
wit) having appeared and given bail, and bein;;
put to plead at the election of the said nlaintiff
under the said act of Assembly, pteaaed that
he bad no goMs, chattels, rights, credits or ef
(ecta of the said the Chesapeake and Delaware
Canal Company in his hands, custody or pos-
sessioD at the time of the attachment laid, or
at any time after. On this plea the plaintifT
Iwth joined issue, and this is the question now
anbmitted to the court for their decision.
"On the 2ath day of January, A. D. 1834.
a reaolution was passed by the l>oard of di-
r«etor* of the Cbesaneake and Delaware Canal
Company, in the following words, that is to
" Iteaolved, Tbnt hereafter no tolls be collect-
ed on the line of the canal on anv veasel, cargo
or other article passing through the canal, until
the aaid vessel, cargo or other article on which
th» MUd tolls may be levied or charged, shall
hare entered tlic baain at Um wesUni end ol
1 1*. od.
the canal ; excepting only siieh ve4«>T*. Gar}{t> or
other article aa may not pau iliruiiffh tiie caoal
Lo the said basin.'
"'This resolution has never been ['STl
printed by the said company, nor hath any no-
tice whatever thereof been given to tlie said
lohn Randell, Jun. until this time It is ad-
mitted that the snid resolution was adopted for
the purpose of preventing the said John Ran-
dell, JuQ. from attaching the tolls of (hi- said
company by virtue of the said judffm^nt ; or
otherwise availing himself of the luiisilic'lion
of the courU of the State of Delaware, for the
oollcction of his saiil juilfjmrnt
"The defendant at the time of the service of
the said writ ol attachment tnd capine upon
him was. hath ever since bren and still con-
tinues to be the master of the solinoner Hiram;
the said schooner being in hi.' hmid* and pos-
usaion during that time as the uiuatet ol tiie
same, and owner ol the said schooner The
laid vessel passed throiigli the Chesapeake and
Delaware Canal, with a cnri^o from Philadel-
phia to Richmond, on the Kith dav of June. A
D 1H.34 The amnunt of tolls on the several
cargoes ol the snid sc'lipuner drmaiKind for paa
sage Ihrnugh the said canal bctui-er tli- ISlb
day of June, and the return day ot tlip said
writ, was flii dollars and 'R ei nts. lawful money
ol the United Plates nf .\morica. an-! wn« paid
in the city of PhiladeliOiia. to S. Griffiths
Pisher, an oITicer appointed by the said ]irpsident
and directors ol the said the Cliesnpcoke and
Delaware Canal Compniiy. to n-cii-e and col-
lect tolls at their olTicp in the city of Philadcl
phia, by a certain Joppiih [land, the freighter
of the said schooner; after s<Tvir* of s-vid at-
tachment and capias, and after thi- i:iii| vessel
had passed through the canni ss aforesaid, but
before the return of the said writs.
"The said attachment and cnpias were served
upon the said defendant in Keucastle County.
at the time of his olTering to pass through the
said canal at the Delaware tide lock, with
the said vessel and cargo anil previous to th»
vessel passing through the snme. to nit, on the
15th day of June, A. D I8-'I4 The said tide
lock was, when the said canal nas opened for
navigation on the ITth of Oi^toli-r. A. D 1829.
established by the president and directors of
the said company, as a place [or the receipt of
tolls in the said canal; -and a collector of tolll
has always been appninted to reside at that
place; and a certain John WiNnn was. at the
time of issuing said attachment and has ever
since been such collector at s^iid tide loch.
"The printed paper hereunto annexed
marked with the letter 'A.' "is a true [*372
copy of the regulations to he obsen-eif by ves-
sels narigating the Chesapeake and Delaware
Canal, adopted by the board nf directors of the
said company, with the rates of toll for navi-
gating the said canal, the same having been
signed by the president and secretary of the
said company, and published by order of the
president and directors thereof: and it is agreed
shall be taken as a part of the CHse ; e.^cspt so
far as they had been altered by the resolution
o/ the 28th of January atiove set forth,"
[The material regulations in the paper "A,"
established the 4th of February, 1833. were the
following:
1. No vessel shall anter the canal without
4B» _J
SUFBEUI COUBT OF THE UNITBD SiATEB.
1U«
Arst coming to inchor, or making fast to the
pier* St least one hundred feet frum the outer
locki.
2. Masters of vessels shall, before eDtering
the first lock, present to the collector a mani-
fest of carga. so arTaiiKed as to enable him
readily to calculate their tolls. And in order
to guard against frauds, .the collectors are au-
thorized to require the cargo to be landed for
examination, if thev shall see cause ta suspect
the correctness of the manifest.
fi The tolls shall alivays be paid at the flrat
lock passed by a vessel; and upon payment
thereof, the master shnii receive a pass bill, on
which sh.tll he noted the amount of tolls paid,
and the precise time of entering
7 If any vessel shall pass through the canal
trithout full; and honestly paying the pre-
scribed tolls, either of the collectors is author-
iied by law "to seiie such vessel, wherever
found, and sell the same at auction for ready
mon;>y; which, so far as is necessary, shall be
applied tonards paying said tolls, and all ei-
petise) of seizure and sale." And to enforce
the penalties
21 The oRlcer) and agents of the company
are (ully authorized by law to enforce obedi-
ence to the loregoing regulations; and they are
required so to do.
22 No person is allowed to interfere with
the agent! or ofllcers of the company in the
performance of their duties on the canal.
Should reasoni\ble ground of complaint occur
against such officers or aeents, either by unnec-
essary delays or improper conduct, it will be
immediately redressed, on inforinatioD Iieing
lodged at either of the offices of the company]
"It is further agreed that the sloop Robert
and James, the defendant bcin^ then and there
the master, and having the direction thereof.
873'] 'passed through the Chesapeake and
Delaware Canai with a careo from Port De
fosit to Philadelphia, on the I8th of June,
S34. and three several times afterwards, to
wit. on the 26lh day of June. 1834; on the 10th
day of October, 1S34. and on the 5lh day ol
Kovemher. 18:h. between that day and the re-
turn day of the snid writ of attachment.
Copies of the pass bills, given to the naid de-
fendant on these occasions, were annexed.
"The
I toll?
I the
of the said sloop, demanded for passiigc
through the said canal, bv the Chesapeake and
Delaware Canal Company, at their lock, at the
western end of the canal, in the State of Mary-
laod. and there paid bv the said Thomas P.
Crowell. master of the said sloop, between the
said 18th of June and the return day ol said
writ, was 74 dollars and 44 cents, lawful money
of the United States of America.
"The acts of the legislatures of Delaware.
Morvland. and Pennsvlvania. relative to the
•aid the Chesapeake and Delaware Canal, and
the several supplements thereto, are referred to.
Mid made part of this statement of fHcts.
"It is agreed that in many cases since the
resolution of the 2eth of January. 1S34, above
set forth, tolls for the pass-ige of vessels and
their cargoes through the Chesajx-ake and Dela'
ware Canal, from the eastern end of said canal,
in the State of Delaware, to the western end
thereof, in the State of Maryland, were re-
atived by wiue agent appointed by the preai-
dent and directors of the said company, at thrir
office, in the city of Philadelphia; and wan
paid by the owners or captains, or by the
agents of said owners or caotains, to the of-
ficers or agents of said president and diiectort
:pany at said office,
the tolb BO attach^, t
said company attached by the said John Ran-
dell, Jun. « sufficient amount of tolls was al-
ivajfs left in their hands, not attached, to re^
pair and keep in order the said canat, their
locks, and other works necessary thereto, and
to keep the same navigable; also to defray the
expenses of the collection of tolls, iacluding the
salaries of all their officers.
"It is further agreed that the said canal, tke
construction of wliicb was commenced on the
15th day of .^pril, 1824. was completed and
open for navigation on the ITth day of Octo-
ber. 1829.
"It also lurtber agreed that previous to the
renditioD of the judgment above named, ob-
tained by John Randetl. Jun. against the said
•canal company, that the tolls were ["874
collected in the canal at the respective toll-
houses, located at Delaware City and Chesa-
peake City, from the captains and masters of
vessels passing through tiie said canal; but tlic
counciel lot the said defendant protests that
said captain and masters were not personally
liable to the said company for the said tolls, ao
paid by them. If upon tlie foregoing state-
ment of facts the court shall be of the opinion
that John Randell. Jun. the above named
plaintiff i* entitled to judgment against the
defendant ai garnishee of the aaid the Chesa-
peake and Detnwarr Canal Company, upon the
plea of nulla bona, then judgment to be render-
ed for the said plaintiff for the sum of 06 dol-
lars and '28 cents: and if the court should be of
the opinion that the said John Randell. Jun.
is not entitled to judgment against the said de-
fendant, on the aforesaid statement of facts,
the judgment to be entered for the said defend-
ant,"
The follov
Extract from Delaware law, uassed Febru-
ary. 1832.
"Be if enacted, that in esse any matter,
shipper or agent shall fraudulently present U>
the collector of tolls, or other agent of the
canal company, a false manifest or account of
cargo ol any vessel or boat about passing
through the canal, or give a false statement of
the tolls thereon, or otherwise attempt to de-
fraud in the said tolls, on conviction thereof
before any justice of the peace for Newemstle
County, he or they so convicted, after paying to
the canal company the toll due. and the coat of
ascertaining the same, shall forfeit and p«y
double the amount of tolls so charged, on which
the fraud had been attempted; one moiety of
said forfeiture shall inure to the person giving
information and prosecuting the offense to eon-
viction, the other moiety to inure to the Stats
of Delaware."
Extract from Maryland l«w, passed Decern'
bcr. 1831
Be it enacted, et«. that If any tnastar «
■gent of any vesssl or iKwt ahaJl fraadulenUy
PMMS It.
Cbowell v. Raddell. Shouakkb t. Bardbu.
S74
yrcMBt to the collector of tolls, or any other
iLgent of the Cliosapcake Rnil Delaware Canal
Company, a false luaiiifeat or account of carjjo
Hi an; vessel or boat about passing tlirou^h the
canal, or give a fulae alatement of the toll
thereon, or olhtrwise attempt to defraud in
(he uid tolls, on conviction tliereof before an;
justice of the peace oF thl^i Slate, he shall incur
the penaltj of twenty dollars, to be recovered
before same juBtice or the peace as small debts
ire recovered, one half to the informer giving
3T5*J informntion 'and prosecuting the of-
feniltr to conviction, and the other half to the
State."
On this agreed slalement the case was cer-
lin«d to the Courl of Errors and Appeals for
argument anil dciision ; and in October, 1
the court decided that the defendant
goods and cliatteU, cffrcls and credits, rtc. of
the company in bis liands, at the time of tha
attachment laiil in his hands, and before the
return thereof, amounting to fSS; and judg-
ment was rendered in favor of the plaintiff.
The record and proceeding were remanded
to the Superior Court of the Slate of Dela-
ware, and the defendants prosecuted this vrrit
The rase of Richard Shoemaker differs from
that of Thomas P. Crowell only in this', (hat in
his case it was necessary tor the court to de-
ride, in order to render judgment for tlie
(.lalalilf, that the voluntary payment of toll
l>y the master oi a vessel to a periioii appoint-
ed by the directors of the company In receive
uid toll in Philadelphia, was, under the facts
stated in this case, a Iraud on the attachment
laws of the State of Delaware, and on the ju-
risdiction of its courts: and especially fraudu-
lent. And therefore void, as upain.-it a judgment
creditor of the company seeking satisfaction of
hU debt in that State, according to the at-
tachirent laws thereof; and the court so de-
cided.
Mr. Webster and Mr. Clayton moved to dia-
misB the cases for want of jurisdiction.
Mr. Webster,
The whole case appears on the record, and
the court, on inapecling it. will find there is
nothing which can give jurisdiction. Tlie pro-
ceediD}; of the plaintilT was an attachment to
recover the amount of a judgment, or such part
of the same as was in the hands of the defend-
Mlt fn the attachment, who was k debtor to
the Chesapeake and Delaware Canal Company
for tolls, to which his vessel and cargo were
Mubjected, according to the charter of the com-
pany, for passing through the canal. The
judgment obtained by the defendant in error
was in a case in which no constitutional ques-
tion arose; nor was the construction of any
treaty or law ft the United States involved. It
was alQiply a proceeding on a contract, which
S7«*] the *pIaintifT alleged the defendants
had violated, and in which the jury gave him a
verdict for a large sum as damages.
Nor do the agreed facts give jurisdiction.
On them no question is presented upon which
the court can decide. The matter in the state-
BKnt is Bueb as the courts of the State of Del-
aware had full cognizance of; and in the pro-
eeedinga of the courts of Delaware on those
(acts, no question was raised which can come
uadcr tbc revision if this court.
• L. ««.
In tbe early cases, it aeema to have been ex-
pressly required that the law of the United
States, or the State law, or a treaty which was
Bsserled to be misconstrued, should be ex-
pressly stated; and unless it appeared to have
been fully snd expressly stated what law of the
United States, or of the Stale, or constitution
al provision had been violated, this court would
not take jurisdiction.
This has been relaxed, and jurisdiction has
been sustained where it appeared on the face
of the record that the court to wliich the writ
of error was directed could not have given
judgment without having miscon-'trued the
law Craig v. The State of Missouri, 4 Peters,
410.
In the at(achment suit, there wua a pica of
nulla bona, and on this issue it is not seen li»w
a question arose wliicb could give this courl
the revinury power sought in ilie case. The
dclendstits liad no visible property to satisfy
the judgment of Mr. Randelt; and he pro-
ceeded by an attachment of the tolls p:iyuble
to the conipany, according to the dxi-it rc^iilu-
tions establislied by them, nnd in full force at
the time of the proceeding. The courts of
Delaware thought the removal of tbe lolliction
of the canal tolls to Philadpl|ihiii was a
fraud on Mr. Haiidcll; that the canal tolls were
by the charter payable, and should be puid on
the canal. The question was, whether the
tolls were so payable; and the courts of Dela-
ware BO decided. The twcntyfiftb actlion of
the Judiciary Act requires that tlie'point which
this court may decide, on a writ or error to a
Stale court, shall be settled precisely by the
court. It is important that it shall appear
what is decided. On the record in this case,
this cannot be done. The judgment of the
Court of Delaware on the question whether
the garnishee bad or bad not the goods in his
hundrt belonging to the Chesapeake and D^-'la-
ware Cnnal Company, could be decided with
out aiTecling. and would not necessarily in^
volve the decision of b constitotional riuestion,
Ciled. the attachment laws of Delauarc.
The judicature of Delaware is of the high-
est respectability, and *it has no dis- [•371
position to evade the provisions of (he Consti-
tution, or to claim jurisdiction which it ha*
not. Tbe defendant in error, to obtain satis-
faction of a judgment now exceeding $2.tO,000,
has been obliged to resort to the courts of Del-
aware; and to institute a number of suits, by
attacbtnent, for sums which do not exceed or
amount to {100. Tbe courts of Delaware con-
sidered him entitled to relief under the laws of
tbe State, and did not consider the question
as one which was to be alfected by any other
than those law's,
Mr. Sergeant, for the plaintifl in error.
A great many queslions and interests are
involved in this case; but the single point now
before the court, or which can now be consid-
ered, is whether there is so much shown in the
record as to give this court jurisdiction to ex-
amine and revise the jud;;ment of the C^urt of
Delaware. We are not now to discuss whether
the laws of Delaware are inconsistent with
the Constitution and laws of the United
States; and to have tbe same now decided.
We now maintain tbe plaintiffs have a right
to be heard on this question, wben tbe cass
4«l
SUPXEMB COUBT OF TKK UnIIUD SlATtr
IDU
vomei on regularly tor argument, and tbU will
Tlie pLiinliirs in error present the queation
ivhi'llicr lUe acts of the legislature of DKla-
ware, and the opplication of Iho^u acts, were
i)icoii!iiiitrnt with the rightf which the Clu'sa-
peake and Delaware Canal Company acquired
under the charters ol Pennsylvania, Delaware
and Maryland, U they were, the plaintilT be-
low WHS entitled to judgment; bu( if not, tben
the jiid^mt'nt violated the Constitutiun of the
United Stales. Whether the acts ol the Ab-
semUly of Delaware, under which the plaintilT
below proceeded, were valid or invalid, decides
the qucBliun in the case.
It IB admitted that the plaintiff in error is
bound to sustain the jurisdiction of the court.
The court will find the whole case in the
■greed statement; and bath cases are alike, ex-
cept tbut in Shocniaker'a i:i'.t^ llu' trills were
paid in Philadelphia before llic uttacbiutiit was
laid on him as the garnishee of the company.
Ib there any question presented by tlie rec-
ord of ivhich this court has cognizanceT
The allegation is that the laws of the BUte
of Dulunare, as uppliud to this eo.jjuration, are
ic:{iiignuut to tbe charter, and therefore vio-
late the charter, and tire IbUH contrary to the
L'uiiscitiition of the United Siates (art. 1, sec
10, i-) \\ hut till- l^wi of the State of Dela-
3T8'] ware *urc, must lie known bj the de-
mions of the courts of that State. The con-
struction given to tlicm by those courts is here
to be assumed to be right; and the same is
not to be l>rou;;ht in question. It is not the
bubj;:cl of re -examination in this court, and is
to be taken as liiiul and conclusive.
The ijuc&tion then is. whether the laws, thus
construed, arc not uneonslitulional and void,
to far oa they apply lo the coiporaliun of the
Chesapeake and Delaware Canal Company, and
lo persons using the canal !
It is nut nieant, or intended to be said, gen-
erally, that tbey are unconstitutional ; a law
may be good iii part and bad in part; it may be
(;o<:d as applied to one person, and bad as ap-
plied to another.
It is maintained that it doe* sulTiciuntly
appear in (hi- record t'lut the law of D.-lawoic
is unconstitutional and void as to those parties.
It need not appear that the question was
made in the State Court. It need not be stated
in the record that the const it utionalitj of the
law of a Stale came in question. It ia not re-
quired that in the court below the question
was considered. All thai is requisite is that
such a question was applicable lo the case.
MaKin v. Hunter's l.rsHce. 1 Wheat. 304;
Inglee v. Cooltdge, 2 Wheat. 383; Miller t.
Nichols, 4 Wheat. 311; Lanusse v barker. 3
Wheat. 101; Wilson v. The Black Bird Creek
Marsh Company, 2 Peters, 245; Satterlee v.
Mathewson, 2 Peters, 40D; Harris v. Dennie,
3 Peters, 3D2; Davis v. Packard, fl Peters. 41;
Williams v. Morris, 12 Wlieat. 117; 2 Peters's
&)nd. Bep. 325.
Arc the laws under which the plaintiff in the
Delaware Court proceeded, inconsistent with
the charter of the company, and thus uncon-
■titutioual t
The fourth section of the Act of February
IDth, 1829, provides that "an atlachment may
be laid on tolls due, and to become due;" and
463
that the proceedings may be the same u ia
other cases of attachment.
Wiiat are the proceedings "in other cases of
attuehrnentT" Tliey will be seen by a refer-
ence to Ihe Act of the Legislature of Delaware
of the 24th of March, 17711 [Laws of Delaware,
102). and particularly by a reference to the
third, sixth, and seventh sections; the last par-
ticularly.
The third section authoriies the attachnx^nt
or the elTects of an absent debtor, and allowi
the sherilT to take pu-isesaion of them in the
hands of anyone with whom Lliey may be
found, unless aecmity is "riiven for ['Sit
them; which security will be liable for tbe
amount unless the debtor in the attachment
puts in special hail to appear to the suit, and
abide by its result. The sixth section directs
the proeeedings against the garnishee, who
niay, iLruujli tliu lerdict of a jury, be made
liable iv. all the eireets of the defendant in Uil
hands at tbe time of Ihe attailimenl, and up to
the time of judgment. The hevi-nth section,
oa an affidavit that the fiurnishee lias .■llecU
of the debtor in his hands, und is about to de-
part, autburizes a capias against hiiu, so
which he is to give BU:.iii,i lu appeal, ii.u^e
answer, and abide the jii[lgiiient of the cuurL
The effect of Ibcsv h.-eii.jns is lo deprive
the company of all right to co.lect the tolls of
the canal, and to put into llie power of any
creditor to appropriate thrni to his own li^e,
and to the Hatibfuetinn of a debt duo bim.
Thus the whole of Ilie rlg^its of (he compuny
to tolls are susp iiiK'iI. and the contract
formed lietween the Rtnle of Del.-ivvare and
the company by the charlf-r. is defeated and
annulled. The attnehment law. t'len a^ rp-
plied to tbe ease belore this court, violatea the
I'ompact between the States of .Marylnnd.
Pennsylvania, and Delaware, and wiih all the
corporations, and with Ihe citizens of the Unit-
ed States.
Maryland ownft $^0,OU0 of stock in the com-
pany; Pennsylvania $100,000; and Ihe United
States ouu $150,000.
That this is true, that Ihe eontraet of the
charier i; t!ius \io!i,lci;. i- s'lo.vi. bv the fol-
loiiin-' examin.Uion of llie ch.Trtor:
1. By the ninth section of the Act of Mnrv-
land of the 7th of December, 17'J9, the com-
pany have a right to demand and receive the
tolls at such pinces on the canal as they may
direct. Tbe ninth secliin of tbe Art of Di-la-
ware of the 23th of .Innuary, 1801, and the
Act of IVnnsvlvania of the 19th of February,
1801, adopt tiie law of Maryland; and cerUin
stipiilaliuns are made for Maryland.
The atlaehment law of Delaware, as it has
been applied in thif case, is in direct contra-
vention of these positive stipulatii>ns. Tbe
rompany, by the application of the attschmenl
law to the tolls, are not permitted to demand
and receive the tolls. They are demanded and
received by another. This is a plain violation
of the contract,
2. By the eleventh section of the charter ol
Marvland, snd the tenth section of the charter
of Delaware, the eannl i<i declared a public
highwny on payment of tolts aa ffxed and reg-
ulated. It is of course free to every citir-n of
the I'niled States coming to the canal, uid
paying the collectar at a place on the canal.
Peters lO.
ISM
Cbowell t, Bamdeu. Shobuaxei *. ILuiDnx.
ISO*} 'By the application of tliB atUeh-
ment lawi to this case, luch a person cannot
pass. 1. He ia not allowed to pay the collector
and go on. 2. He cannot pass toll free, if the
company are willing, he may do so. 3. He ran-
not pass although be has actually paid the corn-
pan^. Ue it liable to suit, and he ia liable to
Mr. CUyton, In support of the motion.
The Court of Delaware decided tliis cause
an the RTOund of fraud on the laws and the
rigbta of the defendant lo error. No question
worthj of the name of a question of constitu-
tioaal law was or could, have been presented to
that court.
It has been laid down by this court' that
"every creditor must be presumed to under'
■tand the nature and incidents of a corporation,
and to contract with reference to them;" and it
is a settled principle that when the charter or
act of incorjioralion prescribes the mode in
which the officers or agents of a corporation
must act or contract to render their acts or con-
tracts obligatory on the corporation, that mode
must be strictly pursued. For the act of in'
corporation is an enabling act: it gives the cor-
Krate body all tbe power it possesses: it ena-
a it to contract; and ivhen it prescribes the
mode of contracting, that mode must be ob-
served, or the instrument do more creates a
contract than if the body had never been in-
corporated.' Lord Eldon has said, "it is nec-
eseary to confine the powers given to canal
companies strtctly within the limits of such
powers.'" And the principle, as applicable to
all corporations, has been stated by this court.'
It ia believed that this rule has been adopted in
every State in the Union.'
Randell, as a contrnotor with this canal com
pany, dealt with it on the faith of its charter.
According to the rule lud down by this court.*
he must be presumed to bave "contracted with
reference to its incidents." By the third sec-
tion of the charter, it is expressly provided
that a contractor shall l>e paid out of the tolls
S8 1*] imposed by 'the act; and the eighth
■ection of tbe charter prescribes the places for
eollectinz tolls, to tic "such place or places in
tbe canal as the directors may hereafter direct."
By the regulations and by-laws annexed to
the statement of these cases, it appears that
snch places were directed and established, to
wit, "the toll shall always be paid at the flr«t
lock passed by a vessel." and the collectors of
totia are "required to enforce" this rule. The
Delaware tide lock was one of those places
thus established at the time of these sttach-
ments. Randell now only claims that the com-
pany, and all other persons dealing with it,
•hall be held to the law of the charter, and that
DO person having direction of a vessel, may be
aufTered to pass toll free or without paying toll
in the canal. But tbe directors of this com
pany have collected toll in Philadelphia, and
not in the canal. By these means, if lawful,
1. — Humma T Ttie Potomac Company. 8 Peters,
387.
2. — Heed and Anarj *, Tbe Providence Insur-
ance Company. 2 Crancti's Rep. 166; StiaDd v.
HendersoD. 2 iHiw. B21.
8. — Tbe same rule «raa laltf down In Goldln v.
Oswald, 2 Dow. B34. BSIt.
4. — Bcattj «. Tbe Ltmts ot KaowUr, 4 Patera,
the payment of bla judgment irlll be com
pletely defeated. For if it be lawful to colled
tol?s out of the canal, they may as well collecl
them in New .'erscy as in Pennsylvania, and
may remove all the toll-houses out of any State
jurisdiction, long before he can obtain a judg-
ment and process within it. They can thus de-
feat any creditor. This salutary provision in
the charter was made for the very purpose of
retaining some jurisdiction over this company,
to compel payment of its debts and enforce a
compliance with its obligations; and if it had
been omitted, the company could have been
reached by no other State or power. It is but
sn aflinnance, too. of the old common law prin-
ciple, that "toll bars cannot be erected out of
the place for which toll is demanded."
If this company can thus collect tolls out of
the States which chartered it, it can defeat the
payment of the bonus reserved by Slaryland,
which is a share of the net profits on the tolls.
Delaware lias, by a subsequent act, repealed
the section which reserved a share of the tolls
for her benefit; but she has substituted a pro-
vision in lieu of it, for the benefit of the public,
vit., "that whenever and so long as the net
profits arising from the said tolls shall amount
to fifteen per centum per annum, the company
shall lessen the rates of toll fixed by the said
act, so that tbe same shall not exceed twelve
per centum per annum." The public is thus
interested in the faithful collection of the tolls,
according to the charter. But if toll be col-
lected in Philadelphia, a vessel may take in a
new cargo before she arrives at the tide lock in
the canal, and pass toll free with it.
■The rights of the public are also en- (•S8«
croached upon by this illegal mode of collect-
ing tolls, in another most important particular.
The charter provides for the peipetual mainte-
nance and preservation of the canal as a high-
way, and diiects the tolls to be applied to that
object. Any change in the plan of taking toll,
may encroach on this public right. The prin-
ciple of the decision in the case of Lees v. The
Manchester and Ashton Canal Company, II
East, 6Se, i* lull on the very point. Lord El-
lenborough there says, "the public have an
interest that the canal shall be kept up; and
whatever has a tendency to bring it into hazard
is an encroachment upon their rights in it.
They have also an interest that the tolls shall
be equal upon all; for if any are favored, the
inducement to the company to reduce the tolls
generally, below the statute rate, is dimin-
ished." Hence, in that case, the court decided
that a contract to pay toll in any other way
.ban according to the charter was absolutely
In the charter of this canal company, there
is power given to reduce the tolls below the
statute rale, by the proviso to the ninth sec-
tion. Apply this doctrine first to Crowell's
■ase. He paid no toll when he passed the canal
with his vessel : nor was any paid till months
5. — Tbe csKe of ttie Utics lusuraace Company.
IH Jobns. Bep. 381 : 2 Cowen. HIO, 664 ; 7 Cfvta,
462; 6 I'lck. 32. 5 Conn. Rep. Eeo ; 8 SerR. *
Rawie, 222 . 11 Uasa. Rep. SS ; IT Uass. Rep. 21).
[ 6.-8 retera, 28T.
! i.— 6 ComTa's Digest. SBSj Toll, B; Buabatr,
BUPKBKK Covrr or tbb Ukited States.
kfter. He pMsed toll free. It wm a trxad
public rigbta, bb well ma the private ri^htu of
RandeU. Then apply the Bame principle to
Shoeraaker'H eaae. He pftid in Philadelphia be-
fore he went through the canal. He might have
taken in « new cargo of ten times the amount
of that on which ne paid toll, anywhere be^
tween Philadelphia and the Delaware tide lock
in the canal, which are nearly fifty mitea apaiii
and by this arrangement, it wou!d have passed
toll free. For that very reason, therefore, that
his payment of toll in Philadelphia might af-
fect other interesta, his pajrnient was a nullity.
It was a voluntary payment Co a void author-
ity, in fraud of the rights of the attaching
creditor, and of Ibe rights of the public. As a
fraud, the court below regarded it, and held It
ae against the creditor absolutely void.
And even against the stoclcholdcrs them'
selves, the payment ought to have been ad-
judged void if that case had arisen. It was
made by order of the directors only, and they
are but agents of the corporation, who have
clearly no power to bind their principal beyond
the authority limited by the act of incorpora-
38S'] tion.' Any one stockholder *had a right
to treat the payment in Philadelphia as legal
fraud, in plain violation of his vested rights
under the charter. But this was not the case
presented. It was the ease of a creditor, as to
whom, a fortiori, there can be no pretense that
the payment was binding.
There is also a clause in the charter which
provides that "the same rate of tolls shall be
Kid on articlea passing from Chesapeake to
laware, as upon those paid from Delaware
to Chesapeake." (Sec. 9.) This clause is vio-
lated in Crovretl's ease, and also in Shoemaker's.
In Crowell'a case no toll was paid at either end
of the canal at the time of passing, but aa in-
dulgence of some months waa granted before
any payment ; while other persons paid at or
before the time of passing, and while there was
a standing by-law directing all to pay in the
canal. The amount of his tolls from Chesa-
peake to Delaware, was really less than the
amount paid by bim from Delaware to Chesa-
peake, as the case shows. The value of the in-
dulgence in the former case, therefore, was
greater than in the latter. In this way the
company may establish what would be equiv.
alent to a discriminating duty in favor of the
commerce of Philadelphia, and cut up the
commerce of Baltimore; the very thing which
the charter intended to prohibit. They may
thus agree with every man passing from Phila-
delphia to wait for the toll, while they rigor-
:n force payment on all coming from
If it be pretended that they have the power
to do this under the general authority given
them to lessen the tolls, the answer is, flrst.
this authority can be exercised only by the
stockholders at a general meeting, at which
proprietors having five hundred shares of stock
must be present ; whereas, in this ca^e, the
directors alone have reduced the toll; and, sec-
ond, the power given to the company to lessen
e King V. Bar/. 4 Baroswall A C
the tolls is not a power to reduce toll* at mt
Sate or loch, and not at the other. It has been
Ecided, in a similar case, that tolls cannot bs
reduced at one toll gate and not at the other-'
This company has no power to commute with
any person for tolls. That power can never be
exercised unless expressly conferred. It is a
power often to be found in the common turn-
pike acts passed by the States, but not in any
canal act which is known. The reason for this
will be found in the jealousy with which the
legislatures 'regard all power to give [*384
commercial advantages to cue port or place
over another. Yet the contract to receive toll
in Philadelphia, is really a commutatioo for
toll-, end if sustained, there is no limit to ite
exercise. The principle of commutation may at
once destroy the equality of ratea paid by ves-
sels passing from the different bays, and vio-
late that part of the charter. It is a fraud on
the commercial interest of those waters against
which the discrimination is made.
The payment of toll in Philodelpbia is a
fraud on the attachment laws, both of Dela-
ware and Maryland. The attachment law of
Delaivare, under which the defendant in error
claims redress, was passed sixty-six years ago:
was in force at the time of the grant of this
company's charter, and' its constitutionality has
never been questioned. It is very similar to
the attachment law of Pennsylvania; and ia, in
some respects, tike the acts in New Englaitd,
against trustees of absconding debtors. It was,
1 apprehend, never doubted or denied in Dela-
ware that it applied to the debtors of all cor-
porations; and under this act the court below
could have decided. Another act was passed in
1829, before this canal was opened tor naviga-
tion, making the "tolls due, and to become
due," on this canal, liable to attachment; but
the court below, as the opinion is understood,
expressly declared. In giving judgment on these
cases, that this act was declaratory and gavd
no new power.
Any and every contract in fraud or in con-
travention of law is void;' and so are all con-
tracts which tend to prevent the due course oi
justice.' The payment in Philadelphia, by
Shoemaker, was a payment in fraud of thb
law: and falls precisely within (he rule adopted
in England in regard to all contracts, executed
or executory, which are in fraud or contraven-
tion of the revenue laws. Smuggling itself can-
not be regarded as more odious than tbc pas-
sage of a vessel through a canal toll free, under
a trick to defraud a creditor; and to evade the
only laws provided for his security by any
States in the Union.
It must be manifest that. If these attach-
ment laws cannot be enforced on the ground
of unconstitutionality, chancery has no power
in any State to grant relief. The Chancellor
of Maryland has lately decided that he has
power to appoint a receiver, to enable him to
ay debts; and the subject ia now before the
ancellor of Delaware, too, *If a valid J*38&
payment of toll can be made i>i Philadelphia
to evade the attachment law, that payment
would be equally void as agaJnat a recef«»
18. — S Term Ben. 40t : Dallas, 884, 33B, 83$; T
Ansel * Ames. 14 Z.
i. — Comjo on Contracts, 44.
Peter* !•>
tb»
Cbowell v. Randell. Suoeuakkb v, Bandku.
■piwtiited br tb* Conrt of GiaDcerf. If. tbo
attachment law be held uoronatitutiona) on ao-
«o<iBl of nich a previous pajrment, surety there
U no redress In equttj against it, anil the re-
sult Is Inevitable that this corporation is above
the Uw.
The payment of toll In Philadelphia is a
DuuiifcBt violation of the by-laws of the com-
paay. The Bftii regulation to be observed by
Yessels, is: "The tolls shall always be paid AT
TBE FIRST LOCK passed fay a vessel; and
npoQ payment thereof, the master shall receive
a pass bill, on which shall he noted the amount
of tolls paid, and the precise time of entering."
Tbs twenty-flrat regulation directs ai followa:
"The officers and agents of the company are
fully authorized by law to enforce obedience to
tbe foregoing regulations; and they are required
•o to do," These by-laws were made in pursu-
ance of an act of the Legislature, supplemen-
tary to the charter; which provides that the
by-laws shall not tie in contravention of the
exialing laws of the land. That act was passed
in lS3i, long after all the attachment laws
were in force,
Bandell, therefore. Is protected not only by
tbe general law of the land, but by the very by-
laws of this corporation, against payments in
Philadelphia; and it is iasisted that the plain-
tiff in error is hound by the established rule
that 'the restrictions upon the power of the
agents or ofGcers of a corporation, contained in
the act of incorporation, every person dealing
with the company is bound to notice.'
No by-laws could be made to appoint an
officer to collect tolls in Philadelphia. Such a
b^-l«w would not only have been in eontraven-
twn of the attachment laws of the State, but
of tbe charter itself, A by-law may regulate,
bnt cannot alter the oanstitution of a corpora-
tion.* A by-law cannot take away a rigbt, or
impose any unwarrantable restraint on tbe ex-
ercise of it;* and a by-law must be reasonable.
But a regulation to direct the payment of toll
in Philaddphia would be unreasonable and un-
Jnst; as it would lompel every trader south of
tbe canal to go ou*-. of his way to Philadelphia,
a distance of nearl/ fifty miles, to pay toll. It
SS8*] would operate as injuriously *aB a dia-
crfaiinating duty against tbe commerce of Bal-
timore, and would be in direct contravention of
the spirit of the proviso to the ninth section of
the charter, "that the same rate of tolls shall
be paid on articles passing from Chesapeake to
Delaware, as upon those paid from Delaware
to Cbesspeake." It would impose on the trader
a burden so onerous, as to amount to a new toll
or tax, not imposed by the charter; In contra-
Tsntion of the tenth section also.
Tbe Act of 1832, which Is a supplement to
the charter and forms part of it, is the authori-
ty for these bv-lnws; and, as stated, it express-
Ij provides that they shall not be made "in
eontravention of tbe Constitution or laws of
the State." A hy-Iaw directing payment else-
where than in the canal, would not only be in
contravention of the laws of the State, but void
a tending to prevent the due course of justice.
The liability of the person having direction
of ■ vessel which has passed the canal without
1. — Angel * Ames, ITS; WrmHn v. UiUawell
and Aosnsta Bank, 14 Msu, Rep. HB; S&lem Bank
r. r;iouce*ter Bank. IT Mass. Bep. S9 ; Wild v.
. __jjy Bank, 8 Uason'a Ken. """
payment of toll, b fixed by the ninth section of
the original act of incorporation; which, after
it provides that "if any vessel shall pass with-
out paying the said toll, then said collectora
may, it is not said shall, seite such vessel wher-
ever found, and sell the same at auction for
ready money; whieli, io far aa is necessary,
shall be applied towards paying said toll, and
all expenses of seizure and sale, and the bal-
ance, if any, ahatl be paid to the owner," then
also expreasly enacts, that *^he person having
the direction of such vessel, shall be liable for
such toll, if the same is not paid by the sale of
euch vessel as aforesaid." It is clear that the
object was, as the language expresses, that the
master should be liable in all cases where the
may not do at their pleasure, in case the vessel
pass without payment of toll in the canal, sure-
ly the liability of the master of the vessel is
fixed. It is in vain to contend that the sale Is
an essential prerequisite to this liability. Such
a construction would enable the master to take
advantage of his own wrong, and would be an
absolute premium for his own fraud: for then
if he could escape toll free out of the jurisdic-
tion of the State with his vessel, he would not
be liable. Such a construction renders the mas-
ter's exemption from liability dependent on the
success of his own fraud, and furnishes an in-
ducement to him to commit barratry, by expos-
ing the ves:-^el to loss by seizure and sale. Our
construction ii, that the remedy against him is
cumulative to the right of seizure and sale of
cLe vessel; and were this not the true construc-
tion of the charter, of which we think there can
be no doubt, *yet by the common law a I'SST
master is regarded as the ship's husband; and
is liable for pilotage, port dues, tolls and all
the expenses necessarily incident to the voyage.
This common law remedy ia cumulative to thf>t
provided by the statute.*
It remains for the court to say, with thia
view of the case, whether there was really any
constitutional question necessarily arising on
this record. Can a sensible man, could a sensi-
ble court find any such question here, which
was decided against the plaintiffs in eri-orl
Their counsel allege* that such a question nec-
essarily arises undfr the provisions of these
charters, which he regards as "a compact 01
agreement" between tbe Btates of Pennsyl-
vania, Delaware, and Maryland. But how is il
pretended that the compact ha* been violated!
Did Delaware ever enter into any compact
or agreement that any man should pass the
canal toll free, or on payment of toll in Phila-
delphia! or did she ever agree that any man
should pass the canal through her borders,
without being liable to that attachment law
which was passed by her in 1770, and was in
full force when the charter of this company
was granted T That act authorizes any plain-
tiff in a judgment to attach the goods, chat-
tels, rights, credits, or effects of any defendant
whatsoever; and compels the debtor or gar-
nishee to answer how much he had in his
hands, custody or possession belonging to tbe
defendant at the time of the attachment laid,
113
, Warren, • Prlca's Report*,
n7 SuPUMB CouKT or i
or at anj time sfter >nd before the return of
the writ. It waB thought by the court below,
and muat by this court be seen to be Budtcient
for the plaintifTs purposes, even if the special
act of I82H, which expreasl; authorizes the at-
tachment of the tolls of thiB very corporation,
had never pasHed. Under that Act of 1770
alone, the Court of Delaware, it will be per-
ceived, could not have had the itigiiteBt dlllt-
cuHy in pasaiiig judgment aa they did. They
must have considered the Act of m2», as mere-
ly declaring and confiriiiiiig a pre-exiating right
in every creditor, derived from a law which was
In full force thirty years before the State char-
tered this company. The questian, therefore,
which it was pretended was raised in the State
Court, was whether an act in force at the time
of the charter, granting a remedy to a credit-
or, IB constitutional. Is that a queationl Is it
reBlly qurstianable whether those who take
a charter under a State, thereby subject them-
■elvcB to the laws of the land existing at the
time, which provide remedies for the adminis-
»88'] tration of justice? 'The counsel for
the plaintilTs in error may, it is true, put tbia
as a question; but every interrogatory which
counn^ can put is not a queation within the
meaning of the twenty-flfth section of the Ju-
diciary Act.
It ii believed that a glance at the case will
satisfy the court that there could not possibly
have been a real question as to the violation of
any compact or agreement by Delaware with
any other State. But it would not avail the
plaintilfs in error if there had been. The tenth
section of the first article of the Constitution
provides that "no State shall, without the con-
sent of Congress, enter into any agreement or
compact with another State." The Judiciary
Act does not authorize this court to revise a
judgment rendered in favor of the defendant
in error, even if a constitutional question could
have arisen on thic clause, which I do not ad-
mit. To give this court jurisdiction, the deci-
sion in the State Court must be against the
title, right, privilege or exemption specially set
up by either party under the Constitution.
The Act of 1832, which is a supplement to
the charter, provides that a master of a vessel,
who shall in any manner whataoever attempt
to defraud in the matter of the tolls, shall not
only pay the tolls, but a forfeiture besides. Can
it be made a question whether this liabilitv of
the master did constitutionally exist in these
casesT If not, can it then be made a question
whether the attachment law, which reaches that
liability, is constitutional] By the charter the
company is authorized to sue and made liable
"to be sued." This process of foreign attach-
ment is a mode hy which it has been sued ;
and to set Ufi the principle, by sustaining juris-
diction in this case, that a question arising un-
der the Constitution is presented by the fact
stated, that this company has been thus sued,
is to establisli the doctrine that erery decision
in a suit against a corporation in the States la
liable to be reviewed in this court. In Bushel
V. The Commonwealth Insurance Company, 15
Berg, ft Aawle, 170, the Supreme Court of
Pennsylvania decided that the debts due to a
foreign corporation were liable to be attached
for the payment of a claim against the corpora-
"tB] aod what«v«r doubti maj' bt entertainvd
E UkItd Srarits.
1811
as to the application of their attachment laws,
which are similar to those of Delaware, to t^
cases of foreign corporations; no one ever de-
nied or doubted the cDiiTtlitutionality of those
laws as thus construed and applied. Yet whilt
they claim a constitutional jurisdiction over all
the corporations in the world, so far as regards
the debtors of those corporations 'found |*S8t
within their limits, the objection comes from
that Slate against the constjlutionality of the
jurisdicljon of Delaware over htr own doroestie
cor [10 IS lion; a corporatiiin to wiiich she gave
leave to be. and which without her assent couli.'
never have existed: a corporation more than
three fourths of whose canal lies within her ac-
knowledged limits, and which is at once abova
the law, and not liable for its debts, if she can-
not and does not compel obedience to her laws.
As U> the resolution mentioned in the cases
stated, passed three days after the original
judgment of the plaintilT below against the
canal company, and which directs tolls to be
collected in Maryland, it was manifestly a
meditated fraud. Any other by*law passed to
evade the jurisdiction of Delaware would be
equally a fraud on the law. Even were such
payment to the company's creditors claiming
strict justice at her Ik.o.I.h. Her attachment,
laid in the hands of a muster of a vessel, ia a
discharge from all tolls due or to become due
from him at and after the service of the writ,
and until the return of it. A Maryland at-
tachment furnishes a good defense for a gar-
nishee in New York; and a Delaware attach-
ment is an equally good defense for a garnishee
in Maryland. He who passes the Marj'land
lock in the canal after being served with a
Delaware attachment, and before its return, is
protected by the writ, according to the course
of all the decisions regulating the law of ju-
dicial transfer in this country. The writ pro-
tects the captain as a payment In the canal, in
the eye of the law, and were any other con-
struction adopted, neither Maryland nor Dela-
ware could give redress to any creditor of this
canal company; because, as soon as a judgment
could be recovered in one of those Statea, the
company might thus defeat its jurisdiction by
removing all the toll houses [nlo the other.
The doctrine laid down in Miller v. NicboUa,
i Wheat, Kep. 311, 315, that "It would have
been suflicient to give this court jurisdiction of
the cause, if the record should show that an act
of Congress was applicable to the case," ia in-
accurate as understood by the other side. It
m*at appear from the record that some act of
Congress, treaty, or clause in the Conatitution,
relied on to give jurisdiction, was not merely
applicable, but necessarily applied; and that
the court below could not tiave decided aa they
did without considering and deciding on it.
Such wr apprehend to be the true doctrine,
as gathered from all the casen.
•Sir, Sergeant, in reply to Mr. Clay- ['sgO
ton's argument, aa introducing new matter.
The concluding counsel for the defendant In
error has said that the case was decided in^el-
aware in his favor, on the ground of fiCud.
This ia not apparent on the facts agreed upon.
Nothing of an allegation of fraud can be d»-
dtKed from those facta.
Cboweu. V, lUXLSLU Shoeuaku v. Eakdbll.
W)Mt i* the /ket from the evidence! It U
•aid tha.t the reaolntion of the board of direct-
ors'to remove the collection of tollB out of Del-
aware was a fraud on the ereditora of the com-
pany, anii on the righti of those who vrere in
anj manner connected with the use of the ca-
nal. lliU argument proceeds on the thing to
be proved. Suppose the law under which the
attachment was laid was UDConstitutional, and
the question is, whether ft ia a fraud to violate
a law which ia unconstitutional^the proceed-
ings under such a Jaw are void acts, and no
fraud can be alleged out of such a case.
The argument of the counsel for the defend-
ant in ein!T involves the question which is pre-
sented by the record; that the attachment law
of Delaware, m it iaterFered with the rights of
the company, is uuconst.itutionBl. This ia af-
firming the jurisdiction of this court in the case.
Another view of the matter. How does it
appear that tbia is a fraud on the part of tbe
company, and tliat they have exposed them-
selves to the charge of a fraud on the State of
Dclawarel Tlie charter gives the company the
right to demand the toll on the canal; but the
place foi its payment depends upon the resolu-
tion of the directors.
The power to enforce the payment of tolls is
made, by the construction given by the counsel
for the defendant, applicable to the power to
demand tolls on the canal; and it is said that
although B person may have willingly paid the
toll before he entered the canal, this shall not
be done liecause of the authority given to de-
mand the payment after the vessel bu entered
it. This construction of the charter is denied.
The Toluntary payment of the tolls to the com-
pany, or to its agents anywhere, supersedes the
necessit}' of any demand; and the provision of
the charter on which the defendant relies, has
no application to such a case. Had the com-
pMiy demanded the toll before the vessel en-
teral the canal, and had this demand, made in
Philadetfhia, been followed by measures to
ooupel ita payment, the case might be, al-
thou^ it is not admitted that it would be
different. It Is apparent, then, that on the
SSI*] constitutional 'validity of the attacli-
ment law, thus applied, the judgment of the
Court of Delaware depends.
There U no application to this case of the
decisions of the courts of Pennsylvania, that
k foreign corporation ii liable to attachment.
The caae here, is where the law of the State
makes its own corporation so liable.
This court will not readily entertain a mo-
tion to djamias a case for want of jurisdiction,
preliminary to a full hearing of it; for if it
•hall, on the full examination of it, and after
full argument, be found that the court has no
jorisdiction, the court will act accordingly. But
if without such a hearing the dismisaion ia
made, the party may sustain much injury,
without any remedy or relief.
The case of Miller v. Kicbotis full^ maintains
the objection made to the dismission of this
jaae. The court there decided that it ia auffi
dent to give it juriadiotion if it appeared that
an act of Congresa was applicable to the case.
Ur. Justice Story delivered the opinion of
tbe court:
Thta )■ 4 writ of error to the Saperwr Court
9 h.*a.
of the State of Delaware, to revise the Judg-
ment of the Court of Errors and Appeala of
the said State; the record of which judgment
had been remanded to the Superior Court of
the tame State.
A motion baa been made to diamiss the suit
for want of jurisdiction, upon the ground that
there is nothing apparent upon the record to
bring the case within the revLuing power of this
court under the twenty-Rftb section of the Ju-
diciary Act of 17SS (ch. 20). That section
confers appellate jurisdiction in this court from
final judgments and decrees in any suit in the
highest court of iaw or equity of a State in
which a decision in the suit could be had In
three classes of cases: First, where is drawn in
question the validity of a treaty or statute of,
or an authority exercised under the United
States, and the decision is against their valid-
ity. Second, where is drawn in aueation the
validity of a statute of, or an authority exer-
cised under any State, on the ground of their
being repugnant to the Constitution, treaties or
lawa of the United States, and the decision is
in favor of such their validity. Third, where
is drawn in question the construction of any
clause of the Constitution, or of a treaty or
statute of, or commission held under the United
States, and the decision is against the title,
right, privilege or exemption specially set up
or claimed by either party, under such clause
of the said Constitution, treaty, statute or .com-
mission. *The section then goes on to (*3*3
provide that no other error shall be assigned or
regarded as a ^und of reversal in any such
case ai aforesaid, than such as appears upon
the face of the record; and immediately re-
spects the before -men tinned questions of valid-
ity or construction of tlie said Constitution,
treaties, statutes, commissions or authorities in
In the interpretation of this section of the
Act of 1T8S, it haa been uniformly held that to
give this court appellate Jurisdiction, two
things should have occurred and be apparent
in the record: First, that some one of the ijues-
tions slated in the section did arise in the court
below; and second, that a decision was actually
made thereon ly the same court, in the manner
required by the section. If both of these do
not appear on the record, the appellate juris*
diction fails. It is not sulEcient to show that
such a question might have occurred, or such
a decision might have been made in the court
below. It must be demonstrable that they did
exist and were made. The principal, perhaps
the only important difBculty which has ever
Ijeen felt by the court, has been in ascertaining
in particular cases whether these matters (the
question and decision) were apparent on the
record. And here the doctrine of the court has
been that it. is not indispensable that it should
appear on the record, in totidem verbis, or by
direct and positive statement, that the question
was made and the decision given by the court
below on the very point; but that it ia suffi-
cient, if it Is clear from the facts stat^ by just
and necessary inference, that the que!ition was
made, and that the court below must, in order
to tiBve arrived at the judgment pronounced
by it, have come to the very decision of that
question as indispensable to that judgment.
AllhouBb this haa been th« counc erf the de-
^ «7
Sdtbeiu Uoubt or thk United States.
ISN
elalona ta this court, •■ to the estcat and ez«r-
eiae of its eppeJJate jurisdiction over the judg-
ments and decrees of State courts, yet it ia
apparent from the Brgumenti on the present
■Ki'Hsion, as well as from tliose which have been
addressed to ua on several other tate occasions,
that a dilTerent impression exists at the bar;
and that it has been supposed that a much
wider latitude of interpretulioa of the twentj-
flfth section of the Judiciary Act of 1789 has
been adupted by the court. To correct, at least
aa far as in us lies, this mistaken notion, we
■hall now proceed to review the various deci-
sions which have heretofore been made on thia
■uhject.
The ear'i'st ease ia Owings v. Norwood's Les-
393*] see, 5 Cranch, 344. *In that case it
clearly appeared that the construction of a
treaty uas before the State Court, and that it
was decided that the right of the party was not
protected by the treaty. This court aflirnied
the deciRion of the State Court. The next case
was Smith v. The State of Maryland, B Cranch,
Rep. 281. In that case it was contended that
the court had no jurisdiction, because the cause
turned excluaivel)' upon the confiscation laws
of Maryland; dnd that no question relative
to the construction of the treaty of peace, did
or could occur. But upon the fact stated oa
the rrcord, the only title asserted by the orig-
inal plaintilTa was founded on the confiscation
acts of Maryland; and the only title set up by
the original defendant was for a British alien,
protected by the Treaty of Peace, If that title
was so protected, then the plaintiCTa were not
entitled to the relief sought by the bill; if oth-
erwise, then the plsintilfs were entitled to a
decree. The State Court decided that the
plaintiffs were so entitled, and therefore necea-
urily decided asainst the treaty as a protec-
tion. The jurisdiction was maintained by this
cnurt upon this pasture of the facts, and the
decision of the ?tate Court was afterwards af-
flrmed. But the court said that in order to de-
cide upon the main question, it was indispensa-
ble to ascertain what the nature of the title
was, to which the treaty was sought to be ap-
plied.
The next case was Martin v. Hunter's Lessee,
1 Wheaton's Rep. 305, 355. There the original
ease came before the court upon an agreed
statement of facts, upon which the State Court
f^ave Judgment against the original defendant.
That judgment was upon a writ of error re-
versed t)y this court; and when the cause came
afterwards before this court upon a second writ
of error, the objection wss taken that the orig-
inal case was not within the twenty. fifth sec-
tion of the Judiciary Act. Upon this occasion,
the court, after stating the material facts in
the agreed case, said: 'Tt is apparent, from
this summary explanation, that fie title thus
set up by the plaintilT might be open to other
objections; but t!ie title of the defendant in er-
ror (against which the State Court had decided)
was perfect and complete, if it was protected
by the Treaty of 1783. If, therefore, this court
had authority to examine into the whole record,
and to decide upon the legal validity of the ti-
tle of the defendant, as well as its application
to the Treaty of Peace, it would be a case
within the express nurview of the twenty-flfth
section of the actj tor there
4«S
« nothing in tb«
record upon which the court below could hart
decided but upon the title, as connected with
the treaty. And if the 'title was other. |*S91
wise good, its sufficiency must have depended
altogether upon its protection under the treaty.
Under such circumstantes it was strictly a suit
where was drawn in question the construction
of a treaty, and the decision was against the
title specially set up or claimed by the defend-
ants. It would then fall within the very terms
of the act."-
The next case was Inglee v. Coolidge, 2
Wlieat. 303; 4 Cond. Rep. 155, where a mo.
tion was made to dismiaa llic writ of error up-
on the ground that there was nothing apparent
upon the record which brou);ht the case within
the appellate jurisdiction of this court, under
the twenty-fifth section of the Act of 1788.
The court were of this ojiinion, and according-
ly dismissed the writ of error.
The next case was Miller v. Nicholls, i
Wheat, 311, 313; 4 Cond. Eep. 405. Mr. Chief
Justice Marshall, in delivering the opinion of
the court, said; "It does not appear from the
record that either the constitutionality of tht
law of PennaylvsnnL, or any act of Congresi
was drawn in question. It would not be re-
quired that the record should, in terms, stale
a misconstniction of an act of Congress, or that
an act of Congress was drawn in question. It
would have been sulTLcicnt to give thia court
jini^iliction of the cause, that the record should
show that an act of Congress was applicable to
the case. This !a not shown by the record."
The language used in this last sentence has
been often cited, as if it imported that if an
act of Congress was shown to be applicable to
the case, although it was not in fact applied by
the decision of the State Court, it would sus-
tain the appellate jurisdiction of ^hjs court.
That was certainly not the understanding of
the Chief Justice, or of the court. The case of
Miller v. Nicholls was decided in the Slate
Court, upon an agreed statement of facts; by
which it appeared that Nicholls was a debtor
both to the United States and to the State of
Pennsylvania; and the question raised was
whether the United Stales or the State of
Pennsylvania, was entitled to certain money of
NichoHs, then in ftourt, as the creditor of Nieh-
alls. The United States claimed it in virtue of
the priority given by the Act of the 3d of
March, 1787 [ch. 74). But it did not appear in
the statement of facts that Nicholla was then
in a atate of insolvency; and if he was not,
then the priority of the United States did not
attach; or, in other words, the act of Congreaa
was not applicable to it. It is to this stat*
of the facts that the langiiage of the Chief Jus-
tice was addressed. He added, "had the fact of
insolvency appeared upon the record, that
would have enabled 'thia court to revise [*Sd5
the judgment of the Supreme Court of Penn<«yl-
vania." And whyT it may be asked. Because
upon the statement of facta, the State Court
must, under these circumstances, have miscon-
strued the act of Congress or disregarded it}
for otherwise they would not have given the
judgment which was sought to be revised.
That this is the true explanation of thia v^tn,
does not admit of controversy. In tb* rery
next case. Williams v. Norria. 12 Wheat. 11?,
IS4i e Cond. Sep. 462, wb«r« this very ex-
reters to.
Ciowxu. r. RuiDKLu Bhobmaxu v. RuxaaiM
pnmlan In Miller t. Nicholl* wms rellad o
Vgument to estahliBh the poaition tbi.t it i«
nfficient to give the court juriBdiction that the
noord should ihow that an act ol CongrcHs
ma Applicable to the caae, the Chief Justice
nve tne very explauation of it which is
bisisted on; and added, "had the record ahown
tihat tbii VMS a caae of insolvency, bo that an
act of Congress applied to it, that act inust
bave been miacODBtrued or its obligation denied,
when the court decreed the monef to Pennsyl-
vania: and the court were of opinion that the
act eould not be evaded by the omission to re-
fer to it in the judgment, or to spread it on the
record." In the case of Williams r.. Norris,
this court dismissed the writ of error, because
It was not itated on the record that the conati-
tationality of the Act of Tennessee, set up in
that case, was drawn in question. In Fisher v.
Cockenll, 6 Pelers's Rep. 268, the case of Mil-
ler V. Nichntli was again cited, and oonimented
tm by the Chief Justice, and tbc same expla-'
tion of the deciaian wae recognized and
forced; and, because the facts did Dot appear
on the record, which would bring the ca"
within the terras of the twenty-flfth section
the Act of 17HiJ. the writ of error in Fisher
Coi^lEeritl was also dismissed.
But, to proceed with the other cases in their
ehronologictil order: the next case was Hickie
T. Starke, 1 Peters's Rep. 98. There a mo-
tion was made to dismiss the writ of error for
the want of jurisdiction. Mr. Chief Justice
Uarshall, in delivering the opinion of the court
dismissing ttie writ of error, said: "In the
eoDitruction of tliat section (the Iwenty-lirth),
the court has never required that the treaty or
met of Congrpas under which the party claims,
who brings tlie final judgment of a State court
into review before this court, should have been
ideaded specially or spread on the record. But
it has alwayB been deemed essential to the
•xerciae of jurisdiction in such a case that
the record should show a complete title under
S»6*] the 'Lreaty or act of Congress, and that
the judgment of the court ia in violation of
th&t treaty."
The nest case was Wilson v. The Black Bird
Creek Marsh Conipnny, 2 Peters's Kep. 2*5,
2B0. In that case, the Chief Justice, in deliv-
ering the opinion of the court sustaining the
juriadiclion, said; "We think it impossible to
doubt that the constitutionality of the act (of
Delaware) was the question, and the only ques-
tioB, which could have been discussed in the
6t*te Court. Iliat question must have been dis-
euaaed «nd decided. This court has repeatedly
decided in favor of its jurisdiction in sueli a case.
Hsu^in T. Hunter's Lessee, Miller v. Nicholls,
ftnd Williams r. Korris, are expressly in point.
"They ealablish, as far as precedents can estab-
lish snythlng, that it is not necessary to state
in terms on the record that the Constitution
or » lew of the United States was drawn in
qiMBtion. It is sufficient to bring the case
within the proviRlons of the twenty-fifth sec-
tion of the Judirial Act if the record shows that
QkB Constitution or a law or a treaty of the
United States must have been misconstrued, or
th* deciaion could not have tmen made; or, as
ta thia c«B«, that the constitutionality ckF a
State lavr was questioned, and the decision was
in favor of the party claiming ondei ineh law."
The next case was Satterlee v. Mathewson, 8
Peters's Rep. 380, 410, where Mr. Justice Wash-
ington, in delivering the opinion of the court
sustaining tlie jurisdiction, after citing prior
cases, said: "If it suBiciently appear from the
record itself that the repugnancy of a statuta
of a. State to the Constitution of the United
States was drawn into question, or that that
question was applicable to the case; this court
has jurisdiction of the cause under the section
of the act referred to, although the record
should not in terms state a misconstruction
of the Constitution of the United States, or
that the repugnancy of the statute of the State
to any part of that Constitution was drawn in-
to question." But he immediately adds, as ex-
planatory of his remarks, and to correct thsir
generality, "now, it is manifest from tliis rec-
ord, not only that the constitutionality of
the statute of the 8th of April, 1926, was drawn
into question, and was applicable to the case,
but that it was so applied by the judge, and
formed the basis of his opinion to the jury that
they should find in favoi- of the plaintilT, if in
other reapects she was entitled to a verdict. It
is equally manifest that the right of the plain-
tiff to recover in that action depended on that
statute."
The next case was Harris v. Dennie, 3 Pe-
ters's Rep. Z-J2, 302, 'where the court. ['381
in answer to the objection uf a want of juris-
dittion, becauiie it did not appear upon the rec-
ord that any question within the twenty-fifth
section arose in the State Court upon the spe-
cial verdict, said: "It has been often decided
in this court that it is not necessary that it
should appear, in terms, upon the record, that
any such question was made. It is sufficient,
if, from the facts staled, such a question must
have arisen, and the judgment of tlie State
Court would not have been what it is if there
had not been a mi.^cjnst rue tion of some act of
Congress, or a decision against the validity of
the ri^ht, title, privilege, or etemptiun set up
The next case was Craig v. The State of Mis-
souri, 4 Peters's Rep. 410, in wliich Mr. Chief
Justice Marshall, in affirtiiing the jurisdiction of
the court, said: "To give juriHiiction to this
court it must appear in the record, I. That the
validity of a statute of the State of Missouri
was drawn in question on the ground of its be-
ing repugnant to the Constitution of the United
States. 2. That the decision was in favor of
its validity." And again; "There has been a
perfect uniformity in the construction given by
this court to the twenty-fifth section of the Ju-
dicial Act, That construction is thot it is not
necessary to state, in terms, in the record, that
the Constitution or a treaty or law of the
United States has been drawn in question, or
the validity of a State law on the ground of ita
repugnance to the Constitution. It is sufficient
if the record shows that the Constitution, or a
treaty or law of the United States might have
been construed, or that the constitutionality of
a State law must have been questioned; and
the decision has been in favor of the party
claiming under such law."
In Fisher t. CockeriU, S Peters's Rep. 260,
the cases of Harris v, Dennie, and Craig v.
The State of Missouri, were reviewed, and t.lin
doctrine stated therein conflrmedi and Mr. Chicl
«•»
m
Sonuaa Ooon or xhs Vtmm Buxaa.
UM
Juttie* UarahKll, mtter thkt review, added:
"We M17, witb confidence, that this court hat
■aver taken jurisdiction untesa the case, as
stat«d in the record, was brought within the
provisions of the twent^'flfth sectjon of tlie
Judicial Act."
In Davis t. Packard, 6 Peters's Hep. 41, 48,
Ur. Justice Tbonpson said: "It has also been
settled that in order to give jurisdiction to this
court under the twenty-flfth aection of the Ju-
diciary Act, it is not necesKAry that the record
should state, in terms, that an act of Congiels
was in point of fact drawn in queatioa. It is
BulKcient if it appears from the record that an
act of Congress was spplical)le to the case, and
398*] "was QiiaconBtrued or the decision in the
State Court was a^'Sinst the priviiege or ex-
emption specially set yp under such statute."
In the Mayor of the City of New Orleans v.
De AniiRs, U Peters's Uep. 23-1, wIilts the suit
was diBinissed for -want of jurisdiction, the
Chief Justice, in delivering the opinion of the
court, said: "We can inquire only whether the
record shows lliat the Constitutiun, or a treaty
or a law of the United titatea has been violated
by the decision of the Utate Court. To sus-
tain the jurisdiction of the. court in the case
now under consideration, it must he shown that
the title set up by the city of New Orleans
is protected by the treaty ceding Louisiana to
the United Slates, or by some act of Congress
applicable to that title."
These are all the cases, tt is believed, in
which the constructJon of the twenty-fifth sec-
tion of tlie Jud.ciary Act has bexii made matter
of contraversy ; and they extend over a period
of more thun twenty-flve years. They exhibit
an uniformity of inicrpretation of that section
which has never been broken in upon. Tbey
establish, so far ae a course of decision can es-
tablish, the propositions already stated in the
early part of tliis opinion. The period seems
now to have arrived m which the court should,
upon a full review of all tlie cases, with a view
to close, if passible, all future controversy on
the point, reallirm the interpretatioD which
they have constantly maintained. It is, that to
bring a case within the twenty-Bfth section of
the Judiciary Act, it must appear upon the
face of the record, Ist. That some one of the
questions slated in that section did arise in the
State Court. Zd. That the question was de-
cided by the State Court, aa required in the
same aection. 3d. That it is not necessary that
ilia question should appear on the record to
have be(-n raised, and the decision made in
direct and positive terms, ipsissimia verbis; but
tliat it is sullicient if it appears by clear and
necessary intendment that the question must
have been raised, and must have been decided
in order to have induced the judgment. 4th.
That it is not sullicient to show that a question
, night have arisen or been applicable to the
case, anlesB it is further shown, on the record,
that it did arise, and was applied by the State
Court to the case.
If with these principles in view we examine
t}ie record before us, it is very clear tliat this
court has no appellate jurisdiction. No ques-
tion appears to b» rained, or deciaion made by
tlie State Court within the purview of the
twenty-flfU) feptiflO' Ti» Btatement at fwta
^19
*apon which the judgment agaioit tke [*!••
garnishee (the plsantiff in error) was given,
presents no question aa to the constitutionality
of the tawB of Delaware relative to gamisheesj
and no right set up by the Chesapeake and Del-
aware Canal Company, under their diarteis,
which has been infringed, in violation of the
Constitution of the L'nited States. So far as
we can perceive from the record, the judgmeat
had no reference to any constitutional question
whatsoever, but proceeded upon general prin-
ciples of iaw, applicable to cases of garnish-
ment, if, indeed, we were compelled to draw
any conclusion, it would be that the Judgment
proceeded upon the ground stated at the bar,
that the payment of the tolls for wbicb the
plaintiff was held liable as garnishee waa a
meditated fraud upon the garnishee laws of
Delaware, and a violation of the charters and
by-laws of the company. But it ia unnet'ci-
sary for us to draw %ny such conclusion, aince
there is a total absence from the record of any
question and decision which would give thu
court jurisdiction.
The judgment of the court is that the suit
must be dismissed for wont of jurisdiction.
•JOHN HAGAN, Plaintiff In Error, ['^OO
CHARLES F. LUCAS.
Sheriffs' levy withdraws property from reach of
other processes — records of State Court as
precedent in federal court.
A JudRinent was abtsiaed in a State coort of Aia-
bsms. Hcatast B. and U., sad the aherlfr. under an
tiia alavea, ss the property at tht drfendsnts. Tbef
were clalmrd tij I^ and wcrr dellinted to blm, ha
hnrlng glvea B twad to the sLi'iiCr to >rj the lltle.
and Tor the forth coming o( the alsves, according to
tbe law at tlist Blste. II. bad obtained a JudgmNit
SKstast B. and U. in the Ulstrlct Court oC Um
United Stales tor the District of AlalMtua, acting
I Judgm.
D tha
i'iu:^j'ki
sKSlnet
recort_ . —
■ad tb»T Bbowed that tbe suit, rra peeling tbe rlgbl
of Dropcrtj In tbe sISTes, bad been continued at
March Term, 1834, but did not sbow whellieT any
further proceedinn In tbe esse had taken place at
the preceding sprfng term of tbe Stats court. The
District Court iastructo
ot the State court wen
thev mleht Infer tbe pro . _
Ing an J undetermined la tbe Bute Court, beld.
that tbe Instruction wss correct.
Had the property remained In tbe posseeslon at
the sberlS, under the llrst lerj, It la clear tbe mar-
shal could not hSTS Uken It In execution, tor tt»
property could not be subject to two Jurlsdictloos^
made under the federal or Stale autbcrltr, with-
draws the propeitj from the reach ol the procesa
Qt the other.
Under the State Jurisdiction, a sherllf havlns cz-
BDd where tbere Is no priority on the ssls of th*
BDods, the proceeds should be spplled In propop-
tian to tbe sums named in tbe executloas. Amd
Where a sheriff has msde s lerf, snd atterwsrds r*>
' ' tb* Sana defendant ha
Potws t*.
t tbe recorda
Haoaii v. Ldou.
il m^ appi}' monejt,
But the tame rule doei not (toTirr whrre the
MUtiOQs. >■ !□ tbe DreseDt c ' ' '"
oollected under several txccu .__ ..
tbentf. But ttalB cinnot be doDc u lutween tbe
ourHbal and tbe (berllT.
A moit iDjurlDUB cauQIcl of lurUdktloD vould
ba Itkel; oftec to arise betnceo the federal and (he
State courts. If tbr flnal procen of the one could
be levied on properij wblcb bad been taken by (he
ivocesa of the other. The ourshal or the sheitr
MoiHTt)' In the EooiJs, and msy'tnalntiln id action
eiecutlOQ at the same time by the toarsbal and tb«
abertlT, does this sp'^clal prouerty vest Iq tbe one or
tbe oilier, or both of them? No auch case can ei-
lat : propertj oace levied on remalna Id tbe custody
ol the fan, and It In not liable to be Iskeu by
another eiecuitan. In the bandi of a different offi-
cer: and e<iperlally by an ofllcer aetlng under a dlf>
ferent jurlBdlnlon.
4»1*| 'On the giving of tbe bond, (be property ta
pUced In the iionsess.on of the c almant. ills cus-
tody Is aubstltiited for tbe custody of the aherllT-
Tbe proper— • '•■• * ■
law. la the hands of the i
snda of the sheiiC
le cuatody c
e property It
Duid h
~ Mr. Justice H'Lekn detirered the opinion of
the eotirt:
Tliis writ of error is prosecuted by the plain-
tiff's to reverse a judgment of the District
Cnurt, Teated with the powers of a circuit
court, for the Southern District of Alabama.
The record in the Di<itrict Court states that
OB ths I4th of December, 1S33, a judgement w
ant^red in that court in favor of John Hagi ,
■gainnt William D. Bynum a,nd Alexander
M'Dade, for th« sum of C2,97e.68, besides costs;
and that an execution was issued against the
eoods and chattels, lands and teDemetita of the
defendants, which, on the I9th of February,
1834, waa levied on several slaves that were
claimed by Charles F. Lucas, who gave bond to
try the right of property. At the time of the
levy, the slaves were in the possession of the
claimant.
And the Question as to tkie right of property
being brought before the court, under a statute
of the State, the claimant, Lucas, as stated in
the bill of exceptions, gave In evidence three
records, certified by the clerk of the Circuit
Court of Montgomery County, Alabama, of
three judgments rendered in that court at Sep-
tember Term for various amounts against the
above defendants, Bynum and M'Dade ; and
upon whicK judgments it was proved executions
had regularly issued to the sheriff of Mont-
gomery County, which, on the 10th of October,
1833, were levied on the same slaves taken in.
execution by the marshal, as above stated;
and that the claimant Sled his afTldavit on the
estfa of November, 1S33, in the mode prescribed
by the statute, setting forth that the slaves
were not the property of the defendants in the
execution, but were his property, and gave bond
and security to the aheriff. as required by the
atfttiite, for the forthcoming of said property.
If it should be found subject to said execuLiona,
1 for all costs and charges for the delay, etc
these proceeding* were rotunied by the sheriff
to the Circuit Court of Montgomery County.
And the records 'showed that at the ['403
Manth and November Terms in 1834, the pro-
ceedings for the trial of the right of property
were continued. The record was certified on
the 4th of December, 1834.
Upon this evidence the court instructed the
jury that if they believed that previously to
the levy of the marshal the slaves bad been
levied on by the aheritf of Montgomery Coun-
ty, and that they had been delivered to Lucas
on his making oath and giving bond, as re-
Suired by the statute; and If they believed that
lie proceedings on said claim were still pend-
ing and undetermined in the Circuit Court, that
the property waa, in the opinion of the court,
considered as in the custody of the law, and
consequently not subject to be levied on by the
marshal.
And the counsel for the defendant objected
to the records from the Circuit Court of Mont-
gomery, OS showing the pendency of the snit
■- •'■-' -lourt respecting the right of property,
n of the court had intervened between
the ceniflcation of the record and the time of
using it in evidence. But the court ovenuled
the objection, saying the pendency of the suit
was a matter of fact for the jury to determine,
and that they might infer from the proof be-
fore them that the suit waa still pending-,
which presumption night be rebutted by the
plaintiff in the execution, etc
The statute of Alabama, under which this
proceeding took place, was passed on the 24th
of December, 1812, and provides that where any
sheriH shall levy execution on property, claimed
by any person not a party to such execution,
such person may make oath to such property,
on which tlie sale shall be postponed by the
sheriff until the next term of the court; and
the court is reouired to make up an issue to
try the right of property, etc.. and the claim-
ant ia mquired to give bond, conditioned to pav
the plaintiff all damages which the jury, on
the trial of the right of property, may assess
a^ainat him, etc.; and it is made the duty of
the slieriff to return the property levied upon
to the person out of whose possession it was
taken, upon such person entering into bond,
with security, to the plaintiff in execution, in
double the amount of the debt and costs, con-
ditioned for the delivery of the property to the
sheriff, whenever the claim of the property so
taken shall be determined by the court; and
on failure to deliver the property, the bond, on
being returned into the clerk's office, la to have
the effect of a judgment.
The principal question in this cane is, wheth-
er the slaves referred 'to were liable to (*40S
l>e taken in execution by the marshal under the
-'reumEtances of the case.
Had the property remained in the posBeaslon
the sheriff, under thn llrst levy, it is cle*r
le marshal could not have taken it in execu-
tion; for the property could not be siibjeet to
two jurisdictions at the same time. The first
levy, whether it were made under the federal
or State authority, withdraws the property
from the reach of the process of the other.
Under tbe State jiL-iadiction, a sheriff har>
ing axeoutlon in his nandi may levy on tha
411
BUPBBME COUBT OF TBB UHITID STATIS.
MUM sooda; Mnd when there is no prioritj on
the Bale of the goodi. the proceeds should be
applied fu proportion to the Buma nnmcd in the
esacutions. And where ■. sberilf has made a
levy, and afterwards receives executions
(Lgainat the saine defendant, he may appropri-
ate any surplus that shall remain, after satis-
f/ing the flrst levy, by the order of the court.
But the same rule does not govern where the
executions, as in the present case, issue from
different jurisdictions. The manbal may ap-
ply moneys, collected under several executions,
the aame as the sheriff. But this cannot be
done aa between the marshal and the ilieriff.
A most injurious conflict of jurisdiction
would be likely, often, to arise between tbe
federal and the State courts, if the final pro-
cess of the one could be leried on property
which bad been taken by the process of the
The marshal or the sheriff, a« the case may
be, by a levy, acquires a special property in the
goods, and may maintain an action for them.
But if the same goods may be taken in exe-
cution, at the same time by the marshal and
the sheriff, does this special property vest in
tbe one, or the other, or both of tbemT
No such case can exist: property once levied
on remains in the custody of the law, and it is
not liable to be taken by another enecution in
the hands of a different officer; and especially
by an oflicer acting under a different jurisdic-
tion.
But it is inaiated In this ca> t that tbe bond
Is substituted for tbe property; and, conae-
Snently, that the property is released from
lie levy.
The law provides that the property shall be
delivered into the possession of the claimant on
hi* giving bond and security In double the
amount of tbe debt and costs thati he will re-
turn it to tbe sheriff if it shall be found sub-
ject to the execution.
404*] *Ia there no lien on prooerty thus
■ituated, either under the execution or the
That this bond ta not in the nature of a bond
given to prosecute a writ of error, or on an ap-
peal, is clear. 'The condition ia that the prop-
ertv shall be returned to the sheriff, if the
rignt shall be adjudged against the claimant.
Now, it would seem that thia bond cannot be
considered as a substitute for the property, as
the condition requires its return to the sheriff.
The object of the Legislature in requiring this
bond was to ensure the safe keeping and faith-
ful return of the property to tbe sheriff, should
its return be required. If, then, the property
is required by the statute and tbe condition of
the bond to be delivered to the sheriff on the
contingency stated, can it be liable to be taken
and sold on execution.
If the property be liable to execution, a levy
nuat always produce a forfeiture of the condi-
tion of the bond) for a levy takea the property
otit of the pOBseasion of the claimant, and ren-
dera the performance of bia bond impossible.
Oan a result so repugnant to equity and pro-
priety a* this be sanctioned T Is the law so in-
consistent aa to authoriie the me«nB by which
tbe discharge of a legal obligation Is defeated,
•nd «t Uw lUM time exact a penattv for the
411
failure T This would, indeed, be a reproaeh ta
the law and to justice. The maxim of the law
is that it injures no man, and can never pro-
duce injustice.
On the giving of the bond, the property U
placed in tbe possession of the claimant. His
custody ia suttstituted for the custody of the
sheriff. Tbe property is not withdrawn from
tbe custody of the law. In the hands of the
claimant, under the bond for its delivery to the
sheriff, the property Is as free from the reach
of other processes aa it would have been In the
hands of the sheriff.
In Holt, 643, and 1 Show. 1T4, it was re-
solved by Holt, Chief Justice, that goods being
once seized and in custody of the law, they
could not be selied again by the same or any
other sheriff; nor can the sheriff lake goods
which have been distrained, pawned or gaged
for debt (4 Bac. Abr. 389) ; nor goods before
seized on execution, vnless the first execution
was fraudulent, or the goods were not legally
seized under it.
In Woodfalt'a Tenant's Law, 3B9, it is said:
By the seizure under the execution, the goods
were in the custody of the law, and were not,
therefore, diatrainable; for it Is repugnant, ex
vi termini, that It should be lawful to take the
goods out of the custody of the law;
*and that cannot be a pledge which can- [*405
not be reduced into actual posBession.
In 3 Munf. 417, the court decided that the
lien, by virtue of a writ of fferi facias, upon
the property of the debtor, is not released by
bis giving a forthcoming bond, but continues
until such bond la forfeited.
In that case, the defendant's property hftving
been levied on by an execution in the handa of
the sheriff, was suffered to remain In his pos-
session, on his giving a forthcoming bond for
the delivery of the goods on the day of sale;
but before the day of sale the defendant de-
livered the goods in satisfaction of another
execution, and tbe question was made whether
the forthcoming bond released the lien of the
first execution.
In his opinion, Judffe Roane draws the fol-
lowing distinctions between a forthcoming
bond, and what is called a replevy bond, under
the statute of Virginia: 1. A replevy bond un-
der the act operated a release of the property.
2. Because the surety therein is to be approved
by the creditor; a circumstance very material
in a bond considered as a substitute for an ex-
ecution, and wanting as to the sureties upon
forthcoming bonds, 3, Because a replevy bond
obtained the force of a judgment by tbe mere
giving thereof, though its execution was aua-
pended till tbe expiration of the three months,
and did not owe its obligation, aa a judgment,
to the breach of tbe condition thereof, «a ia
tbe case of forthcoming bonds.
Tbe bond given by the claimant Lucas beara
a strong analogy to a forthcoming bond. B7
the latter, the goods were to be delivered to
the sheriff on t^ day of sale; by the former,
the goods were to be delivered to the sherifT ao
soon as the right shall be determined againat
the claimant. In neither bond Is tbe plaintiff
In the execution consulted, as is done in k re-
plevy bond, as to the lufficiency of the surety:
■or do either of tbeaa bonda, lUca the replevy
r«t«rs I*.
Uaoohb kt al. t. Abmhteu*.
405
bnnd, ap<!rafe as a Jadgmfmt, until * breach of
th« condition. In fact, tlie bond under the Ala-
bauK statute ia Bubitantiallf & forthcotuing
in a late case tlie Supreme Court of Alabanm
draiJed the same question wliich is mnde on
this liouJ, on a bnnd given for llie licliverj of
property under the attachment laws of tliat
Slate. They decided, that the giving of the
bond did not release the poods from the lien of
the attndiiiK-'nt. A contrary decision had been
given liy tlie court in a ease similar: but on
farther examination and more mature rellec-
tion, two of the three judpes made the above
deciaion. This adjudication being mode on
tlie construction of a slatutory proceeding,
40«* I'and by the Supreme Court of the SUte,
(ornis a rule for the decision of thia court.
We think that part of the charge to th« jury
by the District Court which respected the pend-
ency of tlie suit in the State Court, and which
vas excepted to. was ■ubstantialiy correct; and
we are of opinion that on principle and author-
ity, and also unrier the construction given to
the statute by the Supreme Court of the State,
the judgment of the District Court must be af-
This cause came on to be heard on the trkn-
script of the record from the DiKtriet Court of
the United Slates for the Sauthem Distrietof
Alabama, and was argued by counsel; on eon'
sideration nhereof. it is adjudged and ordered
by this court that the judfrment of the said
District Court in this cause be, and the same is
hereby affirmed with costs.
Practice.
prror bad lodRpiI wltb the clrrk
jcrlpl of tbe record gt tbe rsuBe,
iHit bad failed (o Dave tbe transcript died, or the
cauH docketed. In pursuance of Ibe rules of Ir.e
court. The court refused to docket or dismiss the
caw. OQ tbe motion ot Ihe cnuoSGl of the defcnilBnt
In error, wbo ■aknl the court to dlRpense nllli the
certificate required bj the iliteenth rule of the
court, and to substitute the transcrlnt lodgrd with
the clerk of the court h; the plalntlH In error, as
and for tbe uld certmcale.
Bi THB Court; The derend-nt
ot the covrt a
title blmsi-lf to tbe lenpfli of tbe rule, mint pro-
duce the verHGcate of tbe clerk, aa required b; tbe
I rjtory of Florida.
Mr. Mason, counnel for the defendant in er-
ror, having stated (o the court that the plain-
tiffs in error, in thia cauae. had lodifd with the
clerk of this court a transcript of tlie record in
the cause, but had tailed to have said tran
seript flled, or the cause docketed, in pursu-
anee of tbe rules of this court, moved the court
to docket and dismiss this writ of error, undi'r
the nineteenth rule of this court for February
Term, 1806, and to dispense with the certificate
required by, said rule, but to aubetttute the
transcript for and as a certificate. On eon-
sideration. the court was of opinion that the
defendant in error, to entitle himself to the
benefit of the rule, must produce the certificate
of the clerk, as required by the rule. Where-
upon it was ordered by the court, that the laid
motion be, and the same was overruled.
■SAMUEL PACKER et al. [*408
:RY KIXON. Administrri^or of Matthias
Aspden, Deceased.
Questions of practice — jurisdiction.
0?f R certificate of division of opinion from
the Circuit Court of the United States for
the Eustern District of Pennsylvania.
At January Term, 1835, this case was before
the court {9 Peters, 483) on an appeal, and the
decree of the Circuit Court was reversed, with-
out a decision on the merits, for the purpose of
amending the proceedings by entering an alle-
gation of the domicile of the testator, the con-
struction of whose will was the subject of con-
troversy, and Introducing proof in relation
thereto; and also to allow the introduction of
other parties claiming the estate of the tea-
After the coming In of the mandate of this
court, certain other proceedings took place in
the Circuit Court; an amended bill was flled by
the original complainant, containing the allega-
tion of domicile, which was considered neces-
-«ry by the Supreme Court; and numerous
petitions to be allowed to berame parties were
presented by other persons.
Among these, Janet Jones and Mary Poole
filed their bill, cliiiming the whole estate of the
testator, as lieirs-at-law and next of kin of
John Aspden of London; whom they aver to
have been heir-at-law of the testator, and as
such entitled to his whole estate, real and
personal, under his will,
John A. Brown also flled a bill, claiming the
whole personal estate of the testator, as the
:idministrator of John Aspden of Ijondon,
He took out letters of administration In
Pennsylvania upon the estate of John Aspden,
as the attorney of the children of John Aspden
of London.
Henry Nixon, the defendant, flled an answer
to all these bills; and subsequently, under
leave to amend hia answer and plead, flled an
amended answer, with certain pleaa thereunto
annexed.
"In these pleas he averred certain pro- ['40*
dings to have taken place in the Court of
Chancery and Court cf Exchequer in England,
«TS
SuPRBUB COUBT or TDK UNITBt Staibs.
hi which he alleged. Inter atii, that Janet Jonea
•nd Mar; Foole Instituted tboae -^iiils for the
•ame Rubjecl matter, and that John A. Brown's
bill was in tlie same right, and also for the
No allidavit woi made to these pleas by the
executor, as the; were filed at the instance of
the counael of one of the parties, in the execu-
tion of a purpose to aVow all matters which
were claimed as important to the full con-
sideration and proceedingfl In the case, to be
brought forward and exhibited for the con-
sideration of the court.
On the 14th of Novpmber, 1835, the counsel
for Mrs. Poole and Mra. Jones, and the counsel
for John A. Brown, administrator of John
Aspdcn of London, moved for a rule Co show
cause why the pleas in bar should not be
stricken off, as containing averments of matter
Id pais not verified by affidavit.
On the same day the counaet fCr John Aspdcn
of Ijincashire, moved for a rule of Mrs. Faole
and Mrs. Jonea, and on John A. Drown, ad-
ministrator of John Aspen of London, to show
cause why they should not be required tn elect
on which bill or petition they will proceed.
and to abide by the one elected and abandon
the other.
On the fith of January. 1836. on the h>-arin'{
of these motlcns, the following qucsiioni ne-
curred, upon which the opinions of tlie jiidf-^s
were op])osed: .t
lat. Whether it ia necessary that an alfidavit
be made to the pleas in bar to the petition of
John A. Brown, or to any part thercofj and ii
■o, to what parti
2d. Whether the rule moved for by Mr. In-
Kersoll and Mr. Sergeant on the 14th day of
November, 1835, in the following words: "Mr.
Sergeant, for John Aspdeu of I.ancashire,
moves for a rule on Mra. Poole and Mrs.
Jones, and on John A. Brown, administrator of
John Aspden of London, to show cause why
they should not be required to elect on which
Eetition or bill they will proceed, and to aLiide
y the one elected and abandon the other:
Mr. J. R. Tngersoll. for the executor Mr. Nixon,
makea the same motion as Mr. Sergeant,"
ought to be granted or not.
"And the said judges being so opposed in
apinion upon the questions aforesaid, the same
wera then and there, at the request of Mr.
Ingersoll, counsel for Henry Nixon, and Mr.
Sergeant, counsel for John Aspden of Lanca'
■hire, stated under the direction of the judges,
410*] and 'ordered to he certified under the
teal of the court to the Sitprerae Court at their
next •ession to be held thereafter, to be Anally
decided by the said Supreme Court."
The ease was argued on the questions pre-
sented in the certificate by Mr. H. J. Williams
for Mrs. Poole and Mra. Jones, and by Mr.
Coxe for John A. Brown, administrator. .Mr.
Ingersoll appeared for the executor, and dis-
claimed any other interference in the ease but
for hia protection. Mr. Bawle argued the case
for John Aspden of Lancsishire. The decision
of the court upon the ([uestiona presented in
the argument was not given, as the court con-
■idered it could not entertain jurisdiction of
the questions certlfled. The arguments of the
wunsel are, therefora, not givwL
«14
'I'iiia was the case of certificate of divisitm of
opinion from the Circuit Court for the District
of Pennsylvania, certified to this court under
the Act of Congress of the 29Lh of April, 1802
ell. 32, sec. 0.
The case was formerly before this court, and
the decision will be found reported under the
name of Harrison et al. ». Henry Nixon, in the
ninth volume of Mr. Peters's Reports, p. 483,
etc. Upon tlie maodate in that case being re-
turned to the Circuit Court, further proceed-
ings were had in conformity thereto; and in
the course of Chose proceedings the questions
now propounded to tliis court upon the certifi'
cate arose. They are as follows:
1. Whether it is necearary that an affidavit
be made Co the pleas in bar to the petition of
John A. Brown, or to any part thereof; and if
- '' hat partf
veniber, IH35, in the following words: "Mr.
Sergeant, for John Aspden of Lancashire, moves i
tor a rule on Mrs. Poole and Mrs. Jones, and |
i>n John A. Brown, administrator of John
.ispden of London, to show cause why they
should not be required to elect on which peti-
tion or bill they wiil proceed, and to abide by
(he election and abandon the other; Mr. J. R.
Ingersoll, for the execu^ Mr. Nixon, maJ^es
Che same motion as Mr. Sergeant." ought to
be granted I
We are of opinion that the questions are not
of such a nature as are contemplated to be
certified to this court, under the Act of 1S(S
(ch. 32). They are questions respecCing the
practice of the court in equity 'causes, [*411
and depend upon the exercise of the sound
discretion of the court, in the application of
Che tutira which regulate the course of equity
procccdiiiga tu the circumstances of each par-
ticular case. But it is Co be understood that
in the present cose this .general discretion ia
subject to the former order of this court, in re-
gard to the making of parties, aud other pro-
ceedings contained ia the mandate, when the
cause was remanded at the last January Term
of this court, as stated in 9 Petera's Rep. 54(1.
We shall accordingly direct thia opinion to ba
certified to the Circuit Court.
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United States for the DistricL of Penn-
sylvania, and on a certificate of divisioo in
opinion between the judges of the said Circuit
Court upon the following questions, viz.: 1st.
Whether it la necessary that an affidavit be
made to the pleas in bar to the peLiCion of John
A. Brown, or to any part. thereof ; and if so, Xo
what part! 2d. Whether the rale moved for
by Mr. Ingersoll and Mr. Sergeant, en the 14tli
day of November, 1835, in the following warda:
"Mr. Sergeant, for John Aspden of I.*ncaaliiro,
moves for a rule on Mra Poole and Mrs. Jonea,
and on John A. Brown, administrator of Jobs
Aspden of London to show cause why they
should not be required to elect on which petf-
Eluoott ard HuxDira v. Pbail
ICr. R. J. Ingenoll, for tfaa ezMutor
Ut. Niion, natM the SAme motion u Mr.
Stagea.ut," And theae questions were argued
by eounBel; on conaideratioit whereof, it ia tlie
c^nion of this court that aeither of thPiie que*-
tions U of lucti A nature aa are con teni plated to
ba certified to this court under the Aci of the
!9th of April, 1802 (ch. 32.) That thtj are
questions mptcting tbe practice of tlie court
in the applicAtion of the general rules which
reflate the course of cquitj proceed incH to the
drcuniEtancei of each particular case, and
therefore thii oourt have no jurisdictioD to an-
■wer the same. But it is to be understood that
la the present case this general discretion is
•ubject to the former order of this court in
regard to the making of partiei, and other
proceedings contained in the mandate, when
the caun was remanded at the last Januar;
Terra of this court. It is therefore ordered
and adjudged that this opinion be certified to
the said Circuit Court, and that the cause be
mnanded for further pruceedings.
WILLIAM PEARL.
Evfdenee — hearing evidence aa to bound artea
— aurveys — what constitutes such pouession
■• to defeat adverse title.
At tbe trial of a writ of rlRbt la the Circuit
Court of KcDtuciT, ■ wIInesB wns otTered to proie
that one Hoore, who waa dead, and wbo« same was
Kit down as one of tbe cbalD-carrltrB Id makloK
( original sumr. sod wbo waa ■abacquenll)'
pmnt wben llnea were run OB tbe same land, had
declared tbat a certain corner naa tbe corner made
M tbe survaior, KlDcald, when tbe orlirlnal surrcT
^ .... .. ^y ,1^ airectlon of the
aurvej. Tbe Circuit
... ._ rejectlni tbia evldenra.
IDE evidence was not merely EeanaT bot hear'
aaj not to matlers et gi^neral reputation, or com-
■Doa Intereat amons manj'.
Tbe naeral rule Is tbat erldeDCC, to be adnla-
Bible, should be elvea aoder Che saarllon of an
oa(ti, legBllj admlnlatered ; and In a Judicial pro-
ceeding, depeodlne between the partita aHected
bj II, or thoae wbo stand In prlvltr ol eatste or In-
terest wltb tbem. Hearsa; b admltled la caw* 0(
pedigree, of prescrlptlra rights and customa, and
some oiber cnipi o( a public, or ijuasl public oatart.
In eases of pedigree, It la admitted upon tbe gronnd
nf nt'ceisitv. or tbe great dlfflcultr. and aometlmM
the Impnaalblllty, ot provlnR remote facts ot thia
aort bj llTlDg wltnesaea. But Id tbe» case*. It la
onlf admitted wben tbe tradition comes from per-
SODS lotlmatelr connected, or In close relation
wltb tbe tamllT. or from aotirees of a kindred
DSture; which. In a general sense, may be aatd 10
Import verllj : there belDg no Ms nota or other Ib-
Cerest to affect the credit of their statemcDt.
Id case* of prescriptive rights and cuatome, and
otber claims ot a public oature. tradition and
Thar are all casea of a general rigbt. aSeettng ■
number ot persona, haTlng a common Interest.
The dlatlnetlon aeema now clearly eatabllahed In
England that heamay, or reputation, or tradition,
la DOE admissible In caaea of mere prltste rlgbta :
but Dolj In cases of public rlgbta. or those quaal
pub)lcl. lUTOlvlDg similar Interests ot a number ot
persons. Perhaps * reasoD majr be foand M'bleb,
upon principle, would welt lannart this dlatlaetlon.
It la that. In regard to private rights, the acta,
profesilon and assertion of title bj tbe psrtles
claiming for themselrea are. In all cubcs. suscepti-
ble of direct proof ; but In cases ot public rights,
tbe acts, profession and assertion ot title \)j many
persons, not In prlviir with each other, cannot be
explained or guallfled to be In furtherance of a
common pubtle right, nDleas tbe eildeoce of gea-
eral reputation wera admissible to eiplBln 'hv m.
tenlloD and objecta ol the parties In thoBi
; that li
rigbj
KlncBid bad been examined as a wlti
demsadsnts (br way of deposition), ai
anta, tlierenpon. gave In evlden
and declar"" — "* "'---■■■ ■
■ o[ nincBia, to certain witnesses,
-edit bla (Klncalds) teat Imoaj, and
to abow that ha had auted that the sarver waa
mads br him, at tbe mouth ot Raccoon Creek, for
Heme;, wtien It waa his Interest to place It at Pond
Creek. The demsodanta. then, with ■ view to sus-
tain Klaeald, and to support the statement*
Kto what fac— .-., .
tbe wlioes) mnv be eoati
Tbe atatement which jou s
e w I toes* In respec
appe.
iple.
Ion. I
— a leg „ . ._ .- .„
Ina, S Carr. A l>. SS5.
BqI It la otberwlse where
DDlj relate to the Isnue. but It u
atlmon. ; for
that. In bis
itKrlng, had
e opinion of Ibe wlt-
facL
[ulred about must be rele-
the purpoi
tela T. Conrad. 4 Lelgb. 401. 4<»i. 4M.
' taction Inquired about n.
_ ...tness Is not to be cro«».eis mined _, .,
a diallnct collateral fact, for the purpose of after
warda Impeaching bla teatlmonr. Lawrence v
Barker, 6 Wend. 301, SOS, SOS ; Heogoc *. BIm
BNma, fi Carr. A P. TB.
In nnsial. whenever a fact would be relevant ai
aTectrng tbe credit of a wlloesa. and might be In
qnlred of opon cross-eia ml nation, tbs same fsc
mar ba shown to impeach bis credit, where be li
absent, baring made n depoKltlon. Daggett T
Tailnan, 8 Conn. 189. ITT. 178.
Bnt not eallateral nsttera. Qnlted Blatea v
White, fi Craneb. C. C. 88.
Whan the credit of a witness la Impescbed bi
proof that he baa made declsratlons Inconsistent
wltb what be has awom to : In reply to such evi-
dence, proof of bla declaratlona on otber occas-
slons. conglatent with what be haa aworn to, la In-
admlsBlble. Lyiea t. Ljles. 1 Hill, TT. But sea
Holcbklxx T, Germanla Ina. Co. S Bun, 00; Btf
rick T. Smith, 13 Uaa. 446.
Nor la evldeocs of good character admlialbit to
Buslsln Id aueh a case, Uaniiab v. HcSelllp, 4tf
Bsib. 3*2 : Frost t. McCargur, 2D Barb. BIT.
Tbe rule tbat a party cannot dlacredlt his own
witness b; proving that he bad made contradlctorr
statements at other tlmea (United States v. Jones,
3 Wash. C. C. 209). dnfs not apply to those caaes
where the party la under tbe necessity of calling
the snbeerlUng witnesses tr -- ' — ' ' " —
Dett V. Dow, t
In order to Impeach
hsB. out of conrt, msi
Inconsistent wltb. or
mony, tbe witness mu
(. 19.
D Instrument. Dsa-
. witness by proving that ha
< declsrstlona or atatementa
; first be sated, upon cross-
■ " "i stalements or
declaratlona. Unless this b
competent to prove saeb scsiemenis or oeeiara-
tlona. Conrsd v. aniTey. IB How. 38; UcKlnnej.
V, Nell. 1 Mcl«an. C40 ; United States v. Dlekln-
BOD. 2 McLean, S2S : Chapln v. Blger. 4 McLean.
ST8 : Klmbsll V. Davla, IS Wend. 43T ; Palmer r.
18; Vnnrorl v. VaoCort 4 Edw, 621 ■
case, a Ilrod. * B, 120: Kverson v. Ti
Wend. 410; Clnnn v. WItlaon. B G
SuFBEKE CouBT or TBS United Statm.
w[tb thi
a Heposltlon, relullve to bli maklDj
Heposltl
f ■fhomi
It iKlD.
D tbal teBtltlPd Ci
eluded. Wbfre wl
objetUon taken
I proof bu 1
: eluded the evidence
The evidence wai properly •
9 nol under onth : a
■-■ "--s not car- "■
pl&Int recently made ; for there, In o
Buch Impulatioa, pro<
tlOD ol the parly mii:
_ _ __fl then ex-
amlned M'NfhI, a witness for the demandstilft, who
was llrst Introducefl lo proife their boundary, who
staled I bat the water courses . as louDd on the
ground, did not correspond wltb those represented
on Ibe ssid plats; and alter bFlog examlnid by the
demaadanto, (or the purpose of proving Ibat the
marks on the trees, claimed by Cbem ai the corner
and lines of their - ■— - — "■-
e date of the aald plats. The demandanta.
connteract (b!i evidence, and to au^taln their claim,
offered In evidence a surrej, made out by H'Neal
In an action of ejectment formerly dcpi^ndlng lie-
twpcn the same parties tor the same land, of vhlch
BUTver I'earl had due notice. The tenants ob-
jected (0 the readlnc ot the eiplanatory report ac-
companying tbla survey, and Ibe court refaied to
allow BO mueh thereof >■ ttttell tbe _„
to age and otherwise of the llnei and eomera to gi
in evidence to tbe Jury ; and accordingly caused u
be erased from the ptat the worda following, via.
"ancient" (chopa) — "John Forbes, Jun. atatea bi
letters and flcores"— "on the eap
appear to have been marke
1 the chopa on the begloulng tree"-
0 cbops appear to have been marked with a
axe than the chop — • ......
:en permuted tbe
,.._- ._ _ Idence, Held, that the evidence vai
properly refused.
Tbe assumption that there can be no poaaesalan
to defeat an adverse title, eirept in one or other of
these ways, that Ib, by an actTial residence, or an
actual Inclaann. is a doctrine wholly IrrecoDdl-
able with principle end authority. Nothing can be
.1 — .i._ .u.. - • 1. -.. Indispensable
that a
fence Is noltalag n
Laser t an ownerahlf
nd posBCHslon over the property. But there are
lany other acta which are equally evincive of socb
n Intention of asserting such 'ownership [•414
nd poBBeBBlon, such a* entering upon land aDd
..,.,__ . ... "lalug a crop of
life'"""''''''"''
^try Into possesslf
Ktvea a pon
If not In a
., . :IBc metes and bounds,
possession of the wbolp tract
se poasesston ; althou^ tbrn
I there sonuld b
of thi
Where there has been an eotr
* "le by deed, the po«sfsi
he bonnds of that dei
I land under
..._ . Is deemed tn
of that deed: although the
to the
Intenllc
. ..ndants, In a writ of rlgiii. claimed ad-
versely to all the tnnanti. iipon a title Independeni
and distinct from theirs. The teniints all clnlmrd
under an adverse title by deed of seen IhouMiiid
acres ; that la, under a tltla comman to them alL
The demandants could not rerover any tract In
controversy unless they were splied thereof within
thirty yenrs, the period prescribed by tbe statute
of llmltatlODS for writs of right. It, therefore.
there had been thirty years' adverse poaseealon ot
the particular tract In coatroversy, by any of the
. .. .... .. ..._.- (gijjj m tii,[j „it_ anj
were deb;
red fro
, any r
N. y. SRI): Valton *, National Life Ina. Co. 20 N.
I. 32: VauNcBS V. Bush. 14 Abb. Pr. 83; 22 How.
Pr. 481 ; Keivcomh v, Crlawold. 24 N, Y. 208.
Bnt In Connecticut, It baa been beld that the
credit of a witness ma" be Impeached by proof that
without having Inquired of the witness on cross-
eiamlnatton, whether he had made such cootradlc-
tory staremenfH, Hedge v. Clapn. 22 Conn. 281;
disapproving The Queen'i caae. 2 Brod. & B. 310,
' BO In HasaachuaettB, a witnesa mai ' '
edai
: of 0
K dlfft
.. 1 nccpsaarj first to ask him
If he ever mads socb statements. Tucker T. Welsb,
IT Mbbb. 100.
A witness cannot be discredited by proving that
be made a certain remark, which In his examina-
tion be does not deny, but cannot recollect. Gilt-
ner i. Gorbam. 4 Mclean. 202.
A witness may be d la credited by proof of Incon-
Grlffej, 16 How. 38 ; Harper v. Relley.' 1 Cranch C.
C. IM; Brigra v ■"---'- '- "■- •"'
The '^- -
the tli
F. Wheeler, IB B
whom the alleged di'clnratlons were made,
Haleht, 2 Barb. ^10; Sprague
before the Inci
la enouEb If the
tbe alleged coDveraatJon. with reaaonable certainty.
Peopl* T. Anatln. 1 Park. Ct. IB4 ; T N. I.Leg. Oba.
Nor Is the time or place essential, whe
slon Is clearly Indicated by other C
cee, Bockwell v. Brown. 38 N. V. V07.
. the
In a statement In writing signed and
>y the witneaa. It Is auSlrlent preilmlDirr
>n to show the paper to the witness and
BBk him whether tbe signature ts his, without la-
terrogatlng him as to the particular statement con-
tained In It. rlapp V. Wilson, fi Pen. liS,". : Hons-
tlne V. O'Donnell, 6 nun, 4Y2 : GalToeT v. The Peo-
ple, GO N. Y. 41fl : Romertze v. East aiver Bank, 4B
N. y. 67T; see Slepheiia v. The I'eople. lu «. Y.
G49: Bellinger v. I'eonle, B Wend. 695; Contra.
KImbBll V. Davis. 19 Wend. 43T : Stacy v. Grabam,
14 N. Y. 492; 3 Duer. 444.
Othrr wltnesBes. beside the person lo whom thay
were made, may be called to prove sucb alleged de»
laratlons. Everson v. Carpenter, 17 Wend. 419:
Patchln V. Astor. 13 .V. Y. 268.
Objection that a question put to a witness as tc
a prrvlous declnratlon by him Is not sufflclentty
explicit an to time or place, must be made at th«
time tbe queatlon Is put. People v. Jackson, S
Park. Cr. r.no.
To lay tbe foundation for tbe Impeacbicent ot *
iehlB(
_ _ Hun.
BO,
A witness cannot be Impeached by disproving Ir-
relevant Btatementa brought out on cnwa-eiawl-
nallon. Purst v. Second Avenne Railroad Co. ?■
N. Y. n42 ; Nation v. People. 8 Park. Cr. 258 :
even [f be will be first examined as to them. Unit-
ed atatea v, Wblte, 0 Cruich C. C. 88,
Peter* !•-
Ellicott a
) Mebbdith v. Pkail.
t for the iHDil ander whlcb tbe
line oi Tni> lenxnis «■■ drrlvcd. did Dot covf
tUa iBDil: T<r. ir tbej and Iram Ibe evldeace
drr thrm, hSTc had pogapinlan or (hi> land In
meat of tbe demaadaDU' suit, tbejr mkisl Sm
T N error to the Circuit Court of the United
1 State for the District of Kentucky.
The pIuintifTB in error, citizens of the State
of Marj land, on llie ITtli day of Januiiij, IR3I .
lucd out of the Circuit Court of the United
States for the District of Kentucky, a
riglit against William Ptarl, for 'a tenempnt
containing one tliiiusand acres o( land, in the
Count; of Laurel, in the State of Kentucky,
Tbe defendant appeared and took defense, and
put himself on the assize; prajing recognition
to be made, whether he liad greater right to
hold the said tenement, with the appurtenances,
as lie held it; or whether the deni:iiii]ants, Elli-
cott and Mercdilh. to have it, as they demand-
ed it. The demandants afterwards did like-
At May Term, 1834, the case was tried by a
jury, who returned into court the following
verdict: "We, the jury find that the tenant
has more right to have the tenement, on he now
holds it, thau llie demandants to have it:" and
the Circuit Court gave judgment fur the ten-
ant accordingly.
415-J -At tiie same term of Mav, 1331,
other writs of right were s-jcd out by the plain-
titfa a^inst other tenants of tlie land, and tbe
like proceedings and judgment took pli
On the trial of the case, the following bill of
exceptions was filed:
The parties having agreed that these causes
■honld be heard at the eame time, without prej-
udice to the rijht of either party, and that the
evidence almuld be heard as to all, and to be
applied to each respectively, tbe jury was so
•womi and the plaintiff, to support his part of
Uie issue, introduced the patenU to James Kin
caid for two thousand acres, and for one thou-
•and acres, and di:ed from James Kincaid to
Samuel and Robert Smith, and the deed from
Robert Smith to Samuel Smith, and the deed
from Samuel Smith to the demandants, in the
word* and figures following. The patents and
deeds were inserted.
The boundaries of tbe two thousand acres.
mirvejed and granted to James Kincaid, were
"in Lincoln County, on the East fork of Rock-
castle, beginning at Kincatd's Lick, on a branch
of aaid fork, and on the north side, thence south
and fuist for quantity, and bounded as follow-
cth, to wit: beginning at said Kincaid's Lick,
on a branch on the north side of the cast fork
of Rockcastle, two beeches, thence south five
hundred and sixty-six poles, crossing said fork
to two white oaks, thence east five hundred and
sixty-five and a half poles, crossing several
branches to a white aud black oak, thence north
five hundiEd and sUtyaii poles, crossing said
nut fork to two block oaks, thence west Gve
hundred and sixty-live and a half poles, to the
beginning."
The boundaries of tbe one thousand acre anr-
Tey were "in Lincoln County, on the waters
•f Bockcostle, to begin at Origsby's southeast
comer of hU tatrj of two tbouaond acre* of
land, tfaenoe west with Origsby'a line to hli cor-
ner, thence south for quantity, and bounded as
followeth, to wit: beginning on said Nathaniel
Grigsby's southeast corner at a white oak and
black oak, thence west five hundred and sixty-
Hve and a half poles, crossing several branches
with said Grigsby's line to hti corner at two
wliite oaks, thenoe south two hundred and
eighty-three poles, to two black oaks, thence
east Ave hundred and sixty-flve and a half poles,
crossing some branches to two chestnut oaks,
thence north two hundred and eighty-three
poles, to the bi^ginning, with its appurtenances."
The parties also agreed that the trial of
each and all the cases should be bad on the
merits, aa though there were ni blanks in the
'pleas, and that neither party should [*41A
take advantage of any defect in the pleadings.
The demandants also read tbe surveys of
Nf'Neal, the one made out in this case, and the
one made out in the action of ejectment lately
depending before this court between the ume
parties, which surveys are made part of this
bill of exceptions, by reference, and also intro-
duced the aaid M'Ncal, who stated on oath
that be was at the place shown on the plat as
the beginning corner of Kincaid's two thousand
acre survey ; that the trees stood in an island of
Pond Creek, and that tho letters W. H. were
made on each of the Urge trees, and on one of
them, the letters T. K. were also marktd; that
he run the line running south from that point,
and observed tivo sets of marks, the one appear-
ing old, and the other not >o old as Kincaid's
survey; that the old line trees appeared about
as old as the corner trees and the letters, but
that either was as old as the surveys of Kin-
caid he could not say; that all he could say
was, that himself aud others thought corner
trees and the old marks on the line, were made
at the same time ; that he had cut out a block on
the line, it appeared to count for an old line, but
it had grown so close that he could not count
the annulations. The witnesses stated that
in running the south line he had crossed Rock-
castle tliree times before be reached tbe corner,
pursuing the course of the patent in the manner
represented in the connected plat in this cause,
and that the plat correctly represents Rockcas-
tle River, where it is crossed by the several
lines of Kincaid's two thousand, aa run by him
and laid down in the plat aforesaid. The plat
made out in the action of ejectment, and which
was read in evidence, as aforesaid, was objected
to oa incompetent L-vidence in this cause by the
defendants, but the objection overruled. M'Neal
also sUted that in the plat made out .'j the
ejectment cose, Rockcastle River, except where
it was crossed by the first line from the place
shown him in the beginning, was laid down by
protraction only, but he had actually surveyed
and laid correctly tbe crossing of the river, by
tbe different lines on the connected plat, in
these causes; each of the demandants admitted
that he resided, at the commencement of these
actions, at the place represented at his residence
on the plat, and surveyor's report made in these
causes and that if the beginning corir:r of the
patent of James Kincaid was at the point
claimed by the demandants, the lands they re-
spectively BO hold and claimed were within the
latent and deeda read ia evidence by Uie dv-
mondanta.
tu
BUPBEltB COUBT OF THt UKTTO STATES.
ISM
417*] 'The defendant* then introdnetd the
patent to Jacob Reiue^, and Jacob Reiney's
deed to William Edwards, and William Ed-
wards's deed to the defendant, William Pearl,
Aft follows. The patents were here introduced.
The patent was dated the 15th of Jul;, 1TS9,
and the land was described, as a "certain tract
or paroel of land coataiuiug twentj-nine thou-
sand acres bj survev, bearing date the Tth day
of NoreiDber, 1TB6, lying and being in the Coun-
ty of Lincoln, on the waters of Kuckcaatle, afid
bounded as foUoweth, to wit, beginning three
quarters of a mile south of the mouth of Rae-
cooD Creek, and about ten poles from the same
OD the west side at two white oak trees; thence
north two thousand four hundred and sixteen
poles to a hickory and black oak trees; thence
west one thousand nine hundred and twenty
and a half poles to a white oak and black oak
trees; thence south two tbousand four hundred
and si^kteen poles to a while oak; thence east
one thousand nine Oundred and twenty and a
lialf poles to the beginning, with its appurt«-
They then proved by tlie aoid Mlfeal that
the deeds aforesaid of Remej to Edwards, and
from Edwarda to Pearl, include the land in con-
test, and ar« correctly represented on the con-
nected plat; that he had followed an old
marked line from the mouth of Raccoon Creek,
running north, and out of which he cut two
blocka, which he thought counted to the date
vf Retne^'s survey.
That he bad lived in the part of the country
where the land in contest lies upwards of thirty
years, and had always known Rockcastle Riv-
er, and Raccoon Creek, and Pond Creek by
tbeii reapective names, since ever he had been
before Pearl settled on the land, and that in the
spring of 1800, William Pearl, claiming the
whole of the land described in his deed under
the patent to Kemey, settled upon the land, as
he understood, intending to take possession of
his entire tract; and that Pearl, and those
claiming under him, have beld the possession
of the land ever since, that the settlement of
Pearl aforesaid, was made at or near the figures
II on the connected plat. That Pearl and
those claiming under him have always claimed
to hold the land under Remey's patent; the
other defendants all claimed under Peart The
defendant also introduced John Crook, who
swore that he was at the bouse of William
Pearl in the spring of the year IBOO, and that
be was then living on Rockcastle, near the
4 IB*] place represented on the plat made *out
in this (iause by the flgures 11; that he came
from the neighborhood of Goose Creek, or by
Terrell'a Camp; and that Terrell's camp was
about four miles from Pearl's, rather east, and
Pearl's was all the settlement hs then knew of
la that part of the country. He was not at
that time at the place represented on the plat
as the house where James M'Cammou lived in
1801, nor could he say whether M'Csjnmon was
then living there or not, that place is several
miles distant from the place at which William
Pearl then lived.
The defendant called Metcalfe, wl a stated
that old JamM M'Cammon moved hti family
and settled ob Um land la controversy at the
>TS
place representeu as the house whera JamM
M'Cammon lived in 1801 on said plat, either ia
1800 or 1801, and he thought ISOO; and as hs
understood, under a purchase of a part of hb
land from William Pearl, but bow much be did
not know, nor could he say. He understood
that M'Cammon had ooatracted with Pearl for
part of hla land, and settled nnder that contract
and continued to hold the land aforesaid for a
year or two, when, tiy some arrant^ment or
agreement between kCammon and Pearl, be,
M'Cammtm, got other land, part of Pearl's same
tract, and Pearl took the place aforesaid; that
the place Grst settled Kl'Cammon had been
ever since held and possessed by M'Cammon,
Pearl and others holding under him; he could
not say whether his land was marked out to
him not; but he said he never heard it was,
nor did he ever hear that any deed was made:
be also said, upon being interrogated by de.
mandaut's counsel, that one Uardy Hart settled
under a contract of purchase from Rem*},
about the same time, be thought, at or near the
same place; that he could not say what year it
was; he said that he could not speak positively
of tbe year M'Cammon first settled, out it wu
the same ye#r one of hit children was born;
and he always thought it was on the same year
his daughter Jenny was bom until he came
here, but she being of the same age that a
brother of M'Neal the surveyor was, and
M'Neal's brother being, as he was then told bv
lI'Neal, thirty-one years old next July, he had.
on reflecting upon the subject, beconie snlislirJ
that it was his daughter who be thou;{lit ws-*
about two years older than Jenny that wa«
born about tbe same time that M'Cammon act*
tied aa aforesaid, so that he had concluded t)i;il
M'Cammon had settled either 180O or 1601;
and that he thought that he and Pearl settlvd
about tbe 'same time; and that the ['iH
land has been settled and held by one or anuth-
er under Pearl's claim ever since.
M'Neal was then called, and sUted that he
could not state when M'Cammon settled; that
all he could state was that his (M'Cammons)
boys were there making the improvements for
their father the (all before he*,M'Cammon)
brought his family and settled, as witness hud
in the spring of the year assisted them to roll
logs, at which time tbe old man had not re-
moved to the place, from which be inferred
that they had been there the winter before; but
could not oay when they did first go on the
land, nor could he state what year he rolled Uw
logs; that Pearl settled near the figures 11, as
stated on bis plat, in the spring of the year
IBOO; that he. Pearl, that year made sugar and
tapped trees within the one thousand acres of
the demandants as laid down, but his bouse and
clearings did not interfere with the one thou-
sand acres; that his brother, that was of tbe
derstood that Pearl settled at 'the figures U
claiming under his purchase of Edwards bis
whole tract; he was asked by demandants'
counsel, whether Pearl did not tell him that
M'Cammon settled in 1801, and in answer h«
said that at the direction of Peart he had rep-
resented the place on the plat to b« the one at
which M'Cammon lived in IBOl.
, Tbs demandanta then examined John Cook.
Petm l«.
IIU
KlXIOOTT AMD MnmiTH V. Pxuk
4»
■ ftcnumii
Bkrt, ipokEti of bj the vitnpsa Metc&lfe, knd
that be raided on Goom Crtek. below th« salt-
vork), in the mimth of Jui^, 1S02. Tbmt he
ind the company Brriv«<l at tlie lalt-workB on
IheSd ol July, 1802; that the said Hardy Hart
«ai then livinj; below the Ooote Creek salt-
works, oD Gnose Cre«k, on the south fork of
Keatutby; that aJtcr he arrived at the aall-
worki, he and his compnny purchased corn of
him, the Skid Hardy Hart, tor their wason
hoTMi; that he continued to reside there some
time afterwards, how long he could not say,
but he thought until fall, when he removfd to
Rockcastle, and Lvttled near to William
Pearl's.
The deraandanta, to show that Remey't pat-
«it did not cover their patents, but thst it cov-
erel land at or near the mouth of Pond Creek,
nad the deposition of James Kincaid, and
which la made a part of this bill of excep-
tion*.
The deposition of James Kineaid stated in
substance that he reeelved Thompson's warrant
from Allen, and bound himself to locate and
make the surrey. He received Remey'* war-
410*] rant from 'Nathaniel GrigHby. Ha
wu ne*er at the mouth of Raccoon Greek, un-
lit be went there in company with George
Thompson, between 1TB6 and 1799. Before be
mide the survey, he did not particularly nn-
dtntand the geography of the country. He
went from the Crab Orchard and we went by
what was called the Crab Orcliard tracej but
we did not travel the trace oa far as the Ha«l-
Ctch. He hod travelled the trace before, and
Ibonght he eould go a nearer way to Rao-
coon Cnek through the woods. He was ap-
{rised of the place where the trace crossed
■noon Creek ; and when he got in the flat
near the Hkzelpatch we turned off to the left
hand to strike the mouth of Raccoon Creek ;
and after traveling some distance we struck a
water-eourM, supposed by me to be Raccoon
Creek; and he went down it to the mouth, or
to where It and another creek came together,
and we supposed that was the mouth of Rae-
eoon Creek.
George Wilson, Reuben Terrell, William
Hoore, and a young man by tbe name of Myres
wtre there; and he don't remember othera, but
be thinks there was another man by the name
al Craw.
n»e following was the manner of making the
•arvey. We went there in the evening late, and
ncamped oo a little dry branch above the
Month of the creek on tbe south side; recollects
the seit mominK he saw spruce pines standing
•■ tbe bank, both above and below the mouth
of the creek. Did not recollect of going to the
mouth of the creek, but took it for granted,
from the appearance of the bottom on the north
side of the river, that it vust be the mouth of
Hseeoon Creek. Xnd next morning after we
pt there, he thinks ke went down to the bluff,
near tbe mouth of the creek; and George Will-
•OS, who was a young man that he was learn-
ing to survey, he had a compass, and he started
to run the north line; and my»etf and Reuben
Tfrrell snd William Moore, started and run the
three quarters of a mile south to the beginning
comer; but he did not think he marked the be-
linoing coriMr th»t day, for «» hod but one
»!*■•«. 31
tomahawk in th« eompftay, tni 0«orge Wil-
son had taken that on the north line. But after
measuring three quartrrs of a mile from the
moiitli of the creek, we then stopped and start-
ed to run the wrst line of Thompson's and Re-
tiiey'e surveys; this line hn marked "thirdly,"
with a butcher knife, and made Thompson's
corner and Remey's with said knife, and re-
turned to tbe camp the anme cveniiig, near tbe
mouth of ths creek, and there he met with
George Wilson; and he furnished him with his
Held notes of the north line of Remey's survey,
and ws all went in company to the beginning
that he had ascertained *the day before, [*4S1
and then made beginning corner with a toma-
hawk. We then started and run the south lino
of Thompson's survey to tlie trace which was
called B<»>ne's trace, crossing it near the top of
a ridge dividing the waters of Little snd Big
Raccoon; that is what he now underHtiLiid* to
be the waters of Big and Little Koccoon.
Wh«r« he crossed the trace be was more par-
ticular, and marked the line more plain, aad
continued the line the length of the survey, and
made the comer.
He recollected to have run over a ridge from
the mouth of the creek to the beginning, and
rose a steep hill ; and after running the dis-
tance called for, made Thompson's corner, and
continued tbe line to Remey's comer. Never
has been at Remey's corner since. Described
the trees at the corner. He did not think he
crossed the creek in running tbe south line of
Thompson's survey. The survey was thought
to be at Raccoon Creek, because it was intend-
ed to be there; and it was thought to be ther*
until it was discovered to he Pond Creek,
through mistake, instead of Raccoon Creek.
He discovered the mistake when he went to
tbe mouth of Raccoon Creek in company with
George Thompson and Geor(;e Wood; George
Thompson and himself got John Wood to go
and show us the nearest way to the mouth of
Raccoon Creek, and when Uiey got there, be
told Thompson that was not the place he had
made the survey; and Thompson replied and
said that Wood said that was the mouth of
Racccon Creek. And at that time, he held
Allen's bond for half of Thompson's survey,
and Thompson was about buying his interest
in tbe land ; and when he told him that waa
not the place he mode tbe survey, Thompson
told him he would give him a certain sum for
his interest, provided he would then make tbe
survey there, which he agreed to do; and
Thompson said if he would make the survey at
that place, he would hold the land from the
way the patent had issued, calling for the
mouth of Raccoon Creek; and that is the roa-
Bon that in tbe obligation to Thompson that
the waters of Rxccoon is not named, hut in-
stead of Raccoon, the waters of Rockcastle was
inserted; for he told Thompson that he would
not be responsible for the land at Raccoon
Creek; and be knew the other expression could
be complied with, (v.- he knew the survey was
made on Rockcastle.
John Kineaid and Jesse SheUon were present
when he marked the course on the wfit bank
of Raccoon Creek. He was not with Charles
Smith when he made the survey at Pond
Craak. Neither William Pearl nor Hoore was
41t
BuPiEHK Couwf or TBE UvrnD SrAna.
411*] iriUi tbem. He wu wot for and *weiit
to theni, when thej were near three milei from
the eovne of the west bank. He did not teli
William Smith nher« the beginning was, be-
eauae Thompaon had requeated him not to do
ao. He haa an interest in Remey'* dam, and
It would be worth more if the survey could be
eitabliahed at Raccoon Creek.
Haa, aince the original aurvey wai made,
been well acquainted with both places, and hae
no doubt the survey waa made at Pond Creek.
He deaeribed the mouth of Fond and Raccoon
Creek particularly; and he stated that he well
ncoUeeted to have seen tbem when the origi-
nal aurrey waa commenced.
On being aiked what he knew about a aur-
vey in ttie name of Nathaniel Origsby, of two
thousand acrea lying on the north fork Of
Rockcastle Creek, entered od the 10th day of
March, 1TB4, he answered:
"I made the entry, but had no knowledge
of the place at that time, but by information;
but I employed William Henderson, a deputy-
aurveyor, to make the aurvcy as above, and tba
tollowing, to wit: Thomas Shelton one thou-
sand acres on a treasury warrant. No. 7746, aa
aasignee of James Henderson, on the waters of
RocKcaatle, to begin at Qrigsby's southeast
Mmer of hla entry of two thousand acres, as
above entered the 3d day of August, 17B4.
Also, Thomas Shelton seven hundred acres on
a treasury warrant. No. TT4T, beginning at the
beginning comer of Grigaby^a survey of two
thousana acres; and it appears from record
that Henderson did make the said surveys, be-
cauae I did obtain patenta for the samB, and
■old the same with other lands, to the agenta
of Robert and Samuel Smith, but convened to
the said Smiths by specialty, and acknowl-
edged the same before the clerk of the Court
of Appeals. Some time afterward a young
man oy the name of Curry applied to me to
show the surveys of the land I had conveyed
to said Smiihai I referred him to said William
Henderson, and I understood Henderson did
show said Curry said lands; and I also undcr-
•tood, from a Mr. Forbes, who was employed
aa chain-carrier, that said Henderson, with said
Curry, ran around the said land and fresh-
tnarked the lines. Some time afterward my
brother and myself went on to a certain lick
on an east branch of Rockcastle, in order to
bore for salt water: after working some time,
and sinking down upwards of thirty feet, met
with said Forbes, who then told us we were
working within the lines of one of the surveys
abcre described, wherein be had been employed
chain-carrier tor the purpose of frosh-marking.
4!IS*] On receiving this information we quit
our work and went and examined the survey
under the direction of said Forbes, and went
to the beginning corner, it being two beeches.
plainly marked ; and it appeared to correspond
with the patent and things called for therein,
namely, the lick and the trees standing on the
north aide of the branch; and after txamine-
tlon we was so well satisfied that it was one of
the aforesaid surveys, and that we were work-
ing within the lines of said survey, we aban-
doned our work entirely. And this deponent
further sayeth that the two beeches described
of two ttwui
I acrea, stand oa a mtk i
known br the name of hmd Greek, but an
eastwardfy branch of Rodkeastle; and I Uiink
and believe that the aurvey of twenty-nine
thousand acres of Jacob Remey, originally
made, doea not interfere with the aforesaid aur-
veys from the aforesaid considerationa ; aod
this deponent further sayeth not."
The demandanta also read to the jurj the
survey made out by Lot Pitman, whiiA ia alao
made a nart of the bill of eseeptione, by refer-
ence, and called said Pitman as a witneaa, who
stated that he made out said plat, and that ha
found the objects as stated, and that the state-
ment in the notes to said plat he believes to he
substantially correct; that be had counted the
blocks chapped out of the tine running north
from the mouth of Raccoon Creek, that one, to
wit, the one taken out the line nearest to the
mouth of Raccoon Creek, counted t« the date
of a survey made in 1786, and the one taken
farthest bff corresponded to a survey of 178S.
That he had followed the marked line, run-
ning from the mouth of Raccoon Creek to a
comer, said to be Ballard Smith's corner; and
that he found trees marked aa comer trees, oor-
responding with the call of Smith and Robert
Rutherford's surveys. The plaintiff then read
to him the surveys of Robert Rutherford, Ual-
tard Smith, and asked him if the old line did
not correspond to these surveys; he answered
it did, and that date of Robert Rutherford's
survey corresponded with the first block, and
that of Smith's to that of the second shown by
M'Neal.
That the diatance lUted by M'Neal to the
mouth of Raccoon, where he cut out the first
black, would, he thought, be in the line of
Rutherford, and where be said he cut out the
second block would be in the line of Smith; he
thought said witness stated that he had done
much surveying in that part of the countij;
had much experience in tracing old lines,
and in counting the annulations of marked
'lines; and that he knew of no survey [*4S<
In that part of the country of the dates of 1T86
or 17Be except the surveys of Rutherford, Bal-
lard, Smith and Remey; that lie had long
known the line leading north, spoken of by tba
witness M'Neal, and had always heard it called
Rutherford's line to hia comer, and then
Smith's line.
That Rutherford's land waa settled, and
those claiming under him claimed tl.at line aa
one of his boundaries; said witness stated that
he began at the mouth of Pond Creek, and rvn
a south line to the place shown where a white
oak comer stood, and shown by Camp Mullina
and others, and then ran a west line for th»
ilividing line between Thompson and Reroey,
and pursuing the line for some distance be saw
ancient marks, apparently made with a knife i
that after he run some diatance hia compou left
it, but, finding the line again, he pursued it
until they crossed Boon's old trace; near to the
trace, on both sides, he found the line marked
mora thickly; tliat the marked line, thus found,
when reversed, would Ivad to about where Mul-
lina showed the place for the comer; that tba
line run as aforesaid was not a west line, but
the call in the patent; that the ordinary van*'
tion of lines made, when Remey'i purport* to
have been made, b about Uuee degreea.
nta
The denuindiiiita then called Cftmp Uullina,
wlio itAted that, « good manj yeftrs t.go, kbout
twenty-four or twentj-flve, he was taken to the
mouth of Pofid Creek to e«arcb for Rempr's
■urvejr, with Charlu Smith, the gurvpyor, Da-
di Caldwell, and Moore; said Moore
Mid he was one of the original ehainmi^n; that
thtj itartdd at the mouth of Pond Creek, and
run south until the surveyor told theni the dii-
tance emlted in Remey't patent was out; and
tbtf then turned out to hunt for the comer;
that he found a wtiite oak standing near to
whfre the course and distance eailed, plaint;
and anciently marked as a corner tree. That
he recoliectcd it was marked on the north and
west sides, but could not say whether it was
marked on the south side or not; that the white
oak was of a common cabin log, and that near
to the tree lay the trunlc of a white oak not
quite ao large; tliat the t^p of the log was
burnt *o that no chops appeared on it, but that
the; turned it over, and found the under side
plainly and anciently marked with three chops,
apparently done with the same tool that the
standing tree had been marked with; that they
then run north, and on the course of Remey'n
patent, saw line trees plainly marked, that ap-
peared old. and to have been made about the
lame time and the same kind of tool that the
4Z&*] white oak corner did; and 'that they
run the west line and saw marka made with a
knife, drawing knife ef some kind; that he
showed the pince where said trees were to Lot
Pitman and M'Neal, but that said tree and log
are now gonv, and a hole or hollow place is
visible yot, whore he thinks the white oak
stood. That Moore, the ch^iinman to Remey'a
iiriginal survey, ia now dead.
That on the line-< alnresaid there were many
trees plainly marked, and might be easily dis'
rovered by any person pursuing the courses,
jnd also called Mullina, who stated that he was
:ilnng wilh his brother Camp Mullins and
''there, when the white oak tree was found,
.-tnd (itiileil the same that Camp Mullins did as
('I the tree log and linea.
The demandants then called Henderson, who
-tated that he had lieen on the ground and
ihown th» place spnken of by Mullint, that he
had accompanied the surveyor when running
north from said tree ; that they saw no line trees
now standing, but tw saw several trees stand-
ing near wlwre the survey run, blared; that
Ms abject in going on the ground (he being
.(gent of demandants) was to find marked trees
• a the lines aforesaid, but after the most dili-
^■ent BCJirch, neither he nor any other in com-
:>iinT tmnld find any marked trees; that there
nere standing in the course of the line many
Irecfl. Pitman, the surveyor, made the same
statement
Tbe defendant then eailed John Crook, who
stated that about 1801 he had been called on as
deputy- surveyor by James Kincaid, whose dep-
osition demandants had read, to lay off Jacob
Itemey's survey, in which said James Kincaid
claimed an Interest; that be was taken to the
place now claimed by defendants to be Remey'a
beginning comer, three quarters of a mile south
of tbe mouth of Raccoon Creek, and shown by
4aid Kincaid a white oak tree, or two white
oak treea aa comers, and told bv said Kincaid
that ha bad made tha sarvey of Barney therei
• Xi. ed-
that he was directed by Kincaid to nut tt*
diagonal line from that to the northwest comer,
to see if the survey would include a famous
saltpetre cava then esteemed of ^reat value,
claimed by said Kincaid under said patent of
Remey; that be ran the line to a tree which
Kincaid showed U a comer tree; that tree was
newly marked and not chopped through the
rough bark ; and if it were in reality a comer
and tbe beginning also, the survey would in-
clude nearly forty thousand acres of surplus
land ; that in making the survey aforesaid hs
acted under an order of court in a suit in which
Kincaid, the witness tor demandants, was
party or interested; 'that Kincaid was [*4*t
interested in making Remey's patent cover the
saltpetre cave, and Chat if Remey's survey was
originally made at Pond Creek, his patent
boundary would approximate the saltpetre cave
three or four miles nearer than if the survey
had been made to begin where Kincaid then
showed the beginning & him.
The defendant also called William Bmlth,
who stated in substance what Cook stated, and
further stated that Kincaid said that he would
make new lines look like old ones, by putting
aquafortis in the chops, and he stated that the
chops on the white oak corner appeared to be
too old for 1793, hot he could not state how
old it was; they were not doubting that it was
shown aa the corner by Kincaid that it was so;
did not count the annulations, and was then
but little accustomed to pursuing and hunting
old lines; said witness stated that when thcy
run the diagonal line aa stated by Crook, to
the northwest comer, he felt satisfled that the
survey to run from Raccoon could not reach
the iwltpetre cave; that to include the cave
seemed to be a principal object with Kincaid;
tbiit it was then a bone of contention between
Kincaid and others, and he himself was inter-
ested in defeating Kincaid in his attempt to in-
clude the cave by Remey's survey ; that the cave
was then considered of great value by all ; that
Kincaid had then got into poasonHion of it. and
was working it under Remey's patent; aaid wit-
ness further stated, aa did tlie witness Cook,
that to begin Remey's survey at the mouth of
Pond Creek, where Kincaid placed it in hie dep-
osition, would place it several miles nearer to
the saltpetre cave; he thought at least three or
four miles nrarer. and the same fact was proved
by other witnesses.
Smith and Crook both stated that the trees
shown as aloresaid by Kincaid as Remey'a be-
ginning, were marked as corner trees, such as
are called for in Rcincv's patent; that the marks
had an ancient appcaraiice; as tliey were con-
vinced it was the beginning corner, they could
not protend to judge from the appearance of
the marks the exact time the marks were made,
but they were confi-lent tlicy must have been
made many years before 1708.
The dofendsjits then called Titus Mershon,
who stated tliat at times he could not state, but
thought spveral years «ince 1801. or the time
spoken oF by Crook and Smith ; that Kincaid.
the wili'Ms. told him that in the division oi
Remev'a survey, he, Kincaid. had got the north
enii 1 ml wnist land. ni;d di-nired the witness to
let IVarl krinw, thai if he did not consent to a
division, that he would prove the survey at the
mouth of Fond Creek; that be could prove it at
31 4B1
4I!7
SUPBDU CODIT or THE UfllTSD STATES.
ItM
4SJ*] 'either place, for he h»A made a survey
3F it, both at the moulh of Pond Creek and at
the month of Raocoon Creek; that at another
lime, and subseijiient to the conversation first
detaiM. Kincaid ofTered to him to buy State
warrants in the nnine of tlie witness, and lay
them upon Fenrl's land or Itemey's survey, and
that he would prove Reniey's survey at the
mouth of Pond Creek; and that he, Kincaid,
and the witness, MershoD, would divide the
land between them ; that no one was present at
these conversations ; the witness said that he re-
jected the propositi on of Kincaid, and Kincaid
said it he would not others would. He, the
witness, said that Kincaid went on to remark
to him. that when he made the survey at Rac-
coon Creek, his brother-in-law, Wilson, was in
company, and he, Kincaid, informed the wit-
ness how it happened thnt the corner three
quarters of a mile from the mouth of Raccoon
Creek had not been mnde on a true south
course, aim vhy the line had not been proper-
ly marked ; he said the ^ound, or some of it,
was so they could not run over it, and tliey
took ofTgets and lost their reckoning; and Kin-
caid said that when they so run from the mouth
of Racoon to the beginning corner, some of
the company went on one side of the creek,
and some on the other; the witnesses all con-
curred In proving that ever since Pearl settled
in 1801, he and those holding under him. have
claimed the land in contest under the patent of
Itemey. The demanilants then called IM Pit-
man, who stated that from about the place
spoken of by Cook and Smith, and shown to
them as the place of bc^'inning for Hemey and
Thompson's survey, and where they saw a
distance called for in Thompson's patent, at
(he end of which he found corner trees stand-
ing, ninrked to correspond with Tliompaon's
patent; that he had cut or seen cut out of the
xaid line severui blocks; the annulations of
which counted back to 1789. Said witness
stated that to begin at Pond Creek and run
Moutli the distance called for in Remey's pntent,
to the pine- shown by Mullins, where the white
'•ak cornrr stood, the line did not cross Rock-
cHstle and land on the west side of that stream;
(hat Rockcastle, at its junction with Pond
Creek, wna narrow, and Pond Creek appc.ired
wide, but that Rockcastle run, lie tliought,
ilouble the water that Pond Creek did; said
witness also stated, as did M'Neal. that to run
tlic course of Kemey's patent south from the
mouth of Raccoon Creek, the distance called
for, crossed Raccoon Creek three times, and
"nded on the cast side of the creek, and about
Afty poleq from the place stated by Smith and
la's"] *Crook. as shown by Kincaid in 1801,
for the beginning corner of Remey and Thomp-
son's sv''^B}'^: ^^'^ witness stated, and so did
M'Neal, that these two streams emptied into
the east fork of Rockcasl.lc River, called Rac-
coon, the one called Big Raccoon and the other
Little Raccoon; that the stream where Pearl
claimed the survey to be, was called Big Raccoon
Creek ; that Little Raccoon empties into Rock-
castle, about two miles below Big Raccoon.
The defendants then called Camp Mullins, who
stated that the white oak corner at the mouth
of Pond Creek, of which be had spoken, and
the line running north from it, appeared to
483
be marked with a tomahawk, and also ■
.MuUins, his brother, wbo stated the same.
The forej^oing being the substance of the evi-
dence given on both sides, the plaintills ofTeted
to prove, by witnesnea, that William Moort,
whose name is put down as one of the original
chain-carriers in making Kemey's survey, was
dead, and that he attended the witness. Camp
Mullins, about twenty-four or twenty-five yean
ago, when Cbartes Smith run from the mouth
of Fond Creek to the white oak tree, and abo
run the line north running from the mouth of
Pond Creek, and that wliile at the corner and
running the line, he declared that to be the
corner made by Kincaid and the line run by
Wilson by the direction of Kincaid for Remey's
original survey, and also to prove what said
decedent, chaimuan, had stated to others rela-
tive to the boundary of Remey's patent, and
the making of the original survey, since the
settlement and possession of Pearl on tlie land
in controversy. To the giving the statement
and declarations of said chain-carrier, though
proven to be dead, while at the corner and on
the line, or at any other time or place since the
survey was made, the delendant objected as
incompetent evidence for any purpose in this
cause, and hia objection was sus'aincd by the
court, and the declaration of the deceased dukin-
n refusing the evidence or any part of it, the
demandants excepted, and prayed the court to
sign and seal tbis their bill of exceptions
No. 1.
Memorandum. — After the defendant had givao
in evidence the converjationi and declaration*
of James Kincaid. with the witn' sdcs, Mershun,
Smith, and others, with a view to discredit it,
Kincaid, and to show that he had stated that
survey was made by him at the mouth of Rac-
coon for Remey when it was his interest to
place it at Pond Creek, as it might then with
less surplus include the saltpetre cave. The de-
mandants, with a view to sustain Kincaid, and
to 'report the statements going to show [*42*
bis interest, offered witnesses to prove the
statements and conversations of Kinc;kid, and
corresponding with the statements made in his
deposition, relative to his making the surv^a
of Thompson and Remey; to the giving auch
statements and conversations in evidence for
the purpose aforesaid, or any otlier, tlic defend-
ants objected; upon which the court imiuired
of the counsel for the dcmanilanta, wb;tlierth6
statements of Kincaid, which he proposed to
give in evidence, were made prior or subseqiienv
to the time when tbe statements to the con-
trary were made by him, as given in evidence
by the tenants ; to which lie answered be did
not know, but he supposed subsequent; and
thereupon the objection was sustained by the
court, and the evidence excluded; to which
opinion of the court the demandants except «iid
pray. etc. No. 2.
The defendant, to prove the boundaries of tbe
demandants, a* laid down on the plat and
claimed by thr>m, gave in evidence tbe ori^ina)
plats and certitlcates of surveys of .James Kin-
caid's two thousand and one thousand aerea
surveys, and then examined demandanta' wit-
ness, M'Neal, the same pi>njnn firet introdnocd
bv them to prove their boundary, who atatad
PcMra »^
IKM
UlAJOan AMD MlCIEDITa T. ^lAtL.
ihni tlM vater-conrsM. as fovnd an the ground,
ilid nnt correapond with those repreaeiited in
■aid plata: and after being examined by de-
itiandants' cnunMl, for the purpose of proving
that llie marks on thp trees claimed by them as
'he corner and llnca of their surveys were as
ancient as said surveys; and also as to the po-
lition and otherwise of the lines and corners
claimed by them, and represented on the plat
maile in this cause and used before on tliis trial,
stated on the cross-examination of the defend-
ants' counsel, that sonie of tlie lines trees
■narked to suit the calls of said surveys, ap-
peared to be younger, snd others, from their
appearance, might be ua old as the date of said
plats; and the plaintilT, to counteract this evi-
dence, and to sustain his claim, offered in evi-
dence the following survey made out bv M'Neal,
in aa action of ejectmrnt formerly dep^nling
between the same parties, and for the same
land in this court, nhich be obtained from
th: papers in that cause in the progress of
this trial; demandants proved that the tenant
Prarl had nutice of the time of the making
•aid survey. To the reading of which report
for the purpose aforesaid or for any other
in evidence in this cause, the defendant object-
ed, and the court refuaud so much of said report
as stilted the appearance aa to age and otherwise
Jif the lines and corners, etc., to go in evidence
480") to jury, and caused to be "erased from
the plat the following words (here words
erased or underscored were inserted), and per-
mitted the balance of the report and plat to ^
fa evidence. To which opinion of the court in
refusing the remarks and notes of the survey-
or, M'Neal, to be given in evidence as afi
tlon to the demandants' right to recover, tkovgh
he lettled within what he supposed to be Rein-
ey'i claim, unless they find that Reiney's sur-
vey, as actually made, and on which his patent
issued, includes said settlement and the patent
under which dcinandanta claim. 3d. That un-
less they find that Remey's survey covers the
patents under which the plaintilTs claim, that
the settlement of M'Cammon within the two
thoUHand does not give a claim to a possession
within the one thousand acre patent; nor does
the possession within the one thousand acre
patent give any possession within the two thou-
That as to the two thousand acres the statute
runs as to that from "the time a posses- ["4»1
sion was taken by an actual residence or by
fencing, and the same as to the ons thousand;
conseiiuently, that if they find that one has been
thus pi.ssesBed adversely for thirty years next
before the bringing of this suit, and the other
not; that aa to the other not so held, they should
find against such defendants as were within
such patent at the date of the demandants'
writ, provided these settlements arc not includ-
ed in Remey or Thompson's aa originally lur-
The evidence being closed, the demandants
moved the court to instruct the ]u ■■ ■ ■■
they believe, from the evidence, that
of Jacob Remey, and the adjoiuing survey of
George Thompson, was in point of fact made
at the mouth of Fond Creek, by beginning at
or near the letter "L" on the plat, that the law
locates the patent on the ground wliere It was
actually surveyed, notwithatanding the call or
reference In said patents, or of either of them,
to the mouth of Raccoon Creek ; and if they
And that the patent of RciUL-y, as surveyed,
does not interfere with the claim of the plain-
tiffs, that they ought to Und for the plaintilT,
unless they find that defenilants have had pos-
sesaion by an actual residence or fence, within
the patent of plaintitTa. thirty years or more
next before the bringing of these.
This instruction tiit court overruled as moved,
but struck out the word "fence" and inserted
in the stead thereof, the words "improvements
with the intention of taking possession."
The instruction, so amended, was given to
the jury, and the jury were also informed by
the court that the tapping or cutting the sugar
trees for the purpose of making sugar, and so
using them, and the land, would not avail the
tenant under the act of limitations. The de-
mandant* further moved the court to Instruct
the jt)i7 as follows: Zd. To instruct the jury
that the Mttlement of William Pearl at or near
the II, aa designatod on the plat In 1800, out-
ride of th« patents under which the demand'
Mits clain, doea not (in any defenw or liniita-
ve\or of Remey and Thompson, did in point of
fact make the surveys of Keioey and Thomp-
son, or cause them to be made, and the patents
issued thereon, beginning at or near the mouth
of Pond Creek, as designated on the connucted
plat, and that after he returned the certifteate
of survey and patents issued thereon, marked
or caused to be marked, surveys with lines or
corners to correapond with the calls of the pat-
ents at Raccoon Creek, that such marking or
surveying is utterly void and vests no title
whatever in Remey, or his alienee, notwith-
standing such surveys or marUing may include
the land in contest.
6th. That if they And Kinenid's beginning
corner to be as represented on the plat, thnt
then, ns to this controversy, his surveys are
properly laid down.
The court overruled the instruction, number
three, but gave the other three instructions.
To which decisions of the court in refusing
to give to the jury the demandants' instruction.
No. 1, as moved; and in refusing to give to
the jury their instructions, No. 3; the demand-
ants, by their counsel, excepted, at the time of
the dccisionsi, and now prayed that their bill of
exceptions might be signed, sealed and enrolled,
etc.
After the demandants had moved for tb« In-
structions stated in their fourth bill of excep-
tions, the defendant moved the following in-
atrucbions:
1. That to enable the demandants to recover,
they must have proved, to the satisfaction of
the jury, that they, or those under whom they
claim, have had seisin of the land in contest
within thirty years next before the commence--
ment of their suits.
2. That if they find from the evidence that
Remey's patent includes the land In conteat,
they must find for the tenants.
3. That if they find, from the evidence, that
Remey's patent does "not cover the land ["411
in contest, yet if Uiey find from the avldenee
ut
Bdpsuib Codbt or the United Status.
ins
thftt the tcDMitB, or i^ii; of them, or those claiiii-
ing under them, or any of them, hare had pos-
wasion of the land in contest for thirty years
nelt before the commencement of the demand-
anta' suits, they must find for the tenants.
4. That the plat and ocrtia^ate of
not conclusive, of the abjecta noted by tli
irefor, which the court gave, except the Srat in-
atruction moved for by defendants ; to which
opiuion of the court, in giving the second,
third, fourth, fifth and sixth instructiona,
moved by tlic defendant as aforesaid, the de-
mandant^ excepted, etc.
The demandants prosecuted this writ of er-
The ease was argued by Mr. Underwood, and
oy Mr. Haidin, for the plaintiffs in error. No
counsel appeared for the defendant.
Mr. Juitioe Story delivered the oninton of
the court:
This is a writ of error to the judgment of the
Circuit Court for the District of Kentucky,
upon a writ of right, sued fcrth on the ITth of
January, 1831, in which the plaintiiTs in error
and the cause was tried upon thi
by the partiea. Tliere were several wriia of
nght against other tenants of distinct parcels
of the same tract of land, held by the tenants,
respectively, under a common title, and all of
them were tried at the same time, by consent
of the parties, as the same evidence wa« appli-
cable to each.
The demandants claimed title through Inter-
mediate conveyances to a tract of land of two
thousand acres, lying on the east forit of Rock-
castle, in Lincoln County, uniier a patent
granted to James Kincaid, by tlie Coiumon-
wealtb of Kentucky, dated the 3d day of Feb-
ruary, ITBO; and also another tract of land,
containing one thousand acres, on the waters of
Rockcastle, on the south aide and contiguous
to that of two thousand, on a like patent, dated
on the aame day.
The tenants claimed title to the premises un-
der a patent from the Commonwca)th of Vir-
ginia to Jacob Remey, of twenty thousand
acreaof land, lying on the waters of Ruck castle,
dated on the 16th of July. 1789. Remey, on
the 20th of November, 1709, conve3'ed thirteen
thousand four hundred acres of the same tract
483*] to William Edwards; 'and Edwards, on
the 2Gth of December, 1799, conveyed seven
thousand acres of the same tract, by metes and
bounds, to William Pearl, the tenant, under
whom All the other tenants claim. The con-
Tcyance to Pearl comprebciiils all the land in
controversy, and the same land is also included
in the patents to Kincaid,
At the trial, evidence was introducerl by the
tenants to prove that, in 1600, Pearl ciitured
into and settled on the tract oF land so cun-
veyed to him, intending to take possesion of
the whole tract; and that he, and thus; cluim-
ing under him, have had possesBion of the same
land ever since, and liave always claimrj to
hold the land under Remey's patent. Evidence
waa alao intrndiiced to prove thnt J»w h*
M'Cammon Iwliuae uoina ia meutiuiied, oa we
shall hereafter see, in the bill of exceptions)
moved bis family and settled on a part, of tha
land In controversy, either in the year 1800 o«
ISOl, under a purchase from Pearl, but how
much land he purchased or held did not ap-
pear; and about two years afterwards, by some
arrangements between them, M'CammoQ took
some other part of Pearl's land, in the same
tract, and Pearl took the place where il'Cam-
mon had settled. Peari's original settlement
was a little outside of the soulhem bounds of
Kincaid's thousand acre tract, bulween Sugar
Camp Branch and Roekcaslte; and M'Cam-
mou's original settlement was within Kincaid's
two thousand acres, south of Moore's Creek.
The demandants then introduced evidence to
show that Remey'a patent did not cover the
lands patented to Kincaid, but that it covered
land at or near the mouth of Pond Creek; and
that the survey of Remey was in fact made on
Pond Creek (which was outside of the western
boundary of Kincaid's patent), as the beginning
corner, under a mistake that it was Itaccoon
Creek. If so made, it was clear from the plea
that Reniey's survey was surveyed off the land
in controversy.
The foregoing are all the poj'tions of the evi-
dence which seem necessary to l>e stated in
order fully to unoerstand tlie bearing of tlie
questions made at the trial.
The first que-ition was upon (he admissibility
of the evidence of witnessea offered by tha de-
mandants to prove that one Moort, whose name
was put down as one of the original chain-car-
riers, in making Itemey's survey, was dead;
and that be attended with the witness. Camp
Mullina, about twenty-four or twenty-five years
ago, when one Charles Smith run from tha
mnuth of Pond Creek to the white oak tree, and
also run the line north from the mouth of Pond
Creek; 'and while at the corner and [•■1»4
running the line, he declared that to he tlie
corner made by Kincaid (the surveyor), and
Ihe line run by Wilscn, by the direction of
Kincaid, for Rcmey's original survey; and aho
to prove wliat Muore had said to others relative
to the boundary of Remej's patent, and the
making of the original survey, since the settle-
ment and possession of Peart on the land in
controversy. This evidence, licing objected to,
was rejectpd by the court; and this constitutes
the matter of the first e.tcoption of the demand-
ants.
We are of opinion that the evidence waa prop-
erly rejected. It was not merely hrnrsaj', but
hearsay not to matters of general reputation, or
common interest among many, but to specific
parts, viz., the manner and place of running
the boundary lines of Reraey's patent. The
general rule is that evidence, to be odmia-
sible, should he eiven under the sonction of
an oath, legally administered; and in a judicial
(■roceeding, depending between the parties af-
ected by it, or those who stand in a privity ol
estate, or interest with them. So it was lud
down by Lord Kenyon, in his able opinion in
The King v. Enswell. 3 T. R. 721. CtrUin
exceptions have, however, been allowed, which
perhaps may be as old as the rule itself. Bat
these exceptions stand upon peculiar grounds;
and, aa was remarked by Lord Ellenborough in
Weeks t. Sparke, 1 M. & Selw. 086, the ad-
mission of hearins evidence, upon s'' "cpnoinna,
Petoa* 1*.
J63>i
Elucott uid Uebeditu t, Peabl.
wbctber in mature of public or private right,
ii aoineirhat of an ■.nomalj. HearBay is admit-
ted in cases of pedigree; of proseriptive rights
and customs, and some other cases of a public
or quasi public nature. In cases of pcdigrEe,
it is admitted upon the ground of necessity, or
the great difficulty, and sometimes the impossi-
bility of proving remote facts of this sort hy
living witnesses. But in these cases it is only
admitted when the tradition comes from pjr-
ions intimately connected, or in close relation
with the family, or from sources of a kindred
nature, which, in a general sense, may be said
to import verity; there being no lis nota or
other interest to allect the credit of their slate-
ment. So the law was expounded by Lord Ken-
yon in the King v. Enawell, 3 Term Rep. 723,
and by Lord Eldon in Vowles v. Young, 13 Ves.
U3; and in Whitlocke v. Baker. 13 Ves. 614.
Ti cases of prescriptive rights and customs,
and other claims of a public nature, tradition
and reputation have been in like mdnner ad-
mitted. They are all cases of a general right,
affecting a number of persims, having a com-
mon interest. In Moorehead v. Wood, 14 East's
Rep. 329, note. Lord Kenyon stBtcd the gen-
4$5"I eral ground of 'this exception thus:
"Evidence of reputation upon general ^ints
b receivable, because all mankind being inter
nted therein, it is natural to suppose that they
may be converiuint with the subjects, and that
tbcy should discourse together about them,
hftving all the same means of information."
"But," he says, "how can this apply to private
titles
for atrangera to know anything that
only their private titles?" Lord Ellen borough,
in Weeks v. Sparke, 1 M. ft Selw. SSO, com
Bcnttng on this distinction between public and
private rights, said: "I confess myself at ■ loss
fully to understand upon what principle, even
tn matters of ptjblic right, reputation was ever
deemed admissible evidence. It is said, indeed,
tliat upon questions of public right all are in-
terested, and must be presumed conversant with
them ; and that in the distinction taken between
rblic and private rights. But I must
have not been able to sec the foroe of the
principle on which that distinction is founded,
•o clettrly as others have done; though I must
Mhnft its existence." And in that case, which
WBB the case of the claim of a prescriptive right
to common by the defendants, as appurtenant
to ft messaage, evidence of reputation v
mitted on the part of the plaintiff to qualify
th&t right, because the right in some sense par-
took of the nature of a public right, as (t was
nnderstood that there were other persons stand-
ing in pari jure with the defendant; and. there-
fore, it was B question between the plaintiff and
» multitude of persons. And, indeed, the dis-
tinction seems now clearly established in Eng-
land that hearsay, or reputation, or tradition,
Ii not admiMlble in cases of mere private rights;
but only in caaea of public rights or those quasi
p. S2T,
, (bird
, - .lari. uv, az. secona uiduod ed. ;
-. Tbomas, 14 East's Bep. 823; Freeman >.
Fhllllpa. 4 H. * Selw. 4et.
2. — Nichols V. Parker, cited. 14 East's Rep. 331,
Dots: PBiton V. Dare. ID B. * Cres. Rep. Ir.
8. — Bee, alio, 1 Staik, St. p. S8, 84, aecond Lo>>
9 I., ed.
publicl, involving simitar interests by a number
of pcreoDB.' Perhaps a reason may be found
which, upon general principles, would well
support this distinction. It is, that in regard
to private rights, the acts, possession and aa^r'
tion of title by the parties claiming for them-
selves are, in all cases, susceptible of direct
proof; hut in cases of public righla, the acts,
possession and assertion of title by mjiiny per'
sons, not in privity with each other, cannot be
explained or qualified to be iu furLlierance of a
common public right, unless the evidence of
general reputation wure admissible to explaio
the intention and objects of the parties in those
acts, or that possession or assertion *of [*43S
title; that is to say, whether done in further-
ance of a common right, or of a private right.
It is upon the ground of this same distinction
that general reputation is admitted in England
in cases of disputed boundaries between par-
ishes and manors; because the right aff'ects
many persons, and is of public notoriety, and
interest as to the inhabitants of the parish or
manor.' And yet, in England, it has been neld,
at nisi prius, though the point has not been set-
tled by the hJRbest autliority that genera! repu-
tation as to the bounilaries between private es-
tutfs is not admissible evidence. That was so
held by Haron Graham in Clothier v. Chapman ;
cited in 14 East's Rep. 331, nate." The doc-
trine in America, in respect to boundaries, has
gone further; and has admitted evidence of
general reputation as to boundaries butwean
contiguous private estate;* but there it has
stopped.
These are the principal, if not the only
classes of casea, in which hearsay and reputa-
tion have been deemed admissible evidence. The
exclusion of it, in other cases, sla:iJs upon
the general consideration that it is not upon
oath ; that the party atTected by it has no op-
portunity of cross examination; that it often
supposes better evidence behind; that it is pe-
culiarly liable to be obtained by fraudulent
contrivances, and, above all, that it is exced-
ingly inUrm, unsatisfactory and intrinsically
weak in its very nature and character. On
these accounts judges in mudeni times have
leaned against any extension of it. as being
subversive of the security of the titles of par-
ties to property; for upon a strict adherence to
the rules of evidence that security must essen-
tially depend. This will be clearly seen by
what fell from the court in The King v. Ens-
well. 3 T. R. 707. In that case Mr. Justice
Buller, though in favor of the admission oF the
cviitencc upon the ground of authority, said;
"The true line for courts to adhere to is,
wherever evidence, not on onth, has been re-
peatedly received and sanctioned by judicial
determinations, it shall he allowed; but beyond
that, the rule that no evidence shall be ad-
mitted but what is upon oath, shall be ob-
served." The doctrine of the other judges, on
that occasion, went to the same extent. In
Doe V. 'Thomas, 14 East's Rep, 323, the [•437
don ed„ Pbllllpa on Ev. ch. 7. see. T, p. 189, IflO.
third ed. But see Barnes v, Uawson, 1 M. A
Selw, TT. 81.
4. — See Caurman v, Presbrterlsn CoaEregatlon,
6 Blnn 59 ; Coon. v. Penn. 1 Peters's C. Ren. 409.
S11. B12. Bee, also, Tbe Klni v. EdswgII, 3 T.
Rep. 11 B.
4S7
ggpUuk OiVki ^ i'UE tisliEu &T^TEA.
court held, evidpnee of reputation, thnt the
land had belontjeil to J. S., and wai purchased
of him by the first testator, tbougb coupled
with corroborative parol evidence tUat tha same
bad belonged to J. S., was inadiniasible, upon
the ground that reputation waa not admissible
to prove the ownership of priv;ite prDperty.'
And Mr. Chief Justice Mansfield, in delivering
hla opinion in ttie case of the Berkeley Peerage,
4 Camp. Kep. 414, 446, after stating that
b; the general rule of law, nothing aaid by any
person can be uaed aa evidence between con-
tending parties unless it Is delivered on onth, in
the presence of those parties, said, "witli two
exceptions this is adhered to in all civil cases;
flnt, on the trial of rights at common and other
rights claimed by prescription, and, second, on
questions of pedigree." Perhaps this enunier
Rtion will, upon close examination, be found
too narrow; but it shows J.he strictness with
which the exception in favor of hearsay tra-
dition and reputation is constantly construed,
05 being against the general principles of evi-
lli this court a Gke restricted doctrine has
been maintained. In Mima Queen v. Hepburn,
7 Cninch, 290, Mr. Chief Justice Marshall, in
delivering the opinion of the court, said: "ft
other cases (of hearsay) standing on similar
principles sboutd arise, it may wel! be doubted
whether justice and tiie general policy of the
law would warrant the creation of new excep-
tions. The danger of admitting hearsay evi-
dence, is snfticient to adnionish courts of jus-
tice against lightly yielding to the introduction
of fresh exceptions to an old and welt estab-
lished rule, the value of which is felt and ac-
knowledged by all."
jrhese, and other cases also, fully justify the
conclusion (which is indeed stated by elementa-
ry writers) that in order to authorize tlie ad-
mission of hearsay evidence (except in cases of
pedigree), three things must generally concur:
First, that the fact to which the reputation or
tradition applies, must be of a public natnre'i
second, if the reputation or tradition relate to
the exercise of a right or privilege, it mUE
supported by acts of enjoyment or privilege
within the period of living memory; third. that
it must not be reputation or traditionary dec-
larations to a particular fact.*
436*] 'This lost qualification Is most im-
portant in the present case, as it applies di
rectly to it. and is established by clear and de-
cisivB authority. In Antram v. Wood, 5 Term
Rep. 123, Lord Kenyon said, "Althon^jh a
general right may be proved by tradiliuiiary
evidence, yet a particular fact cannot;" and
Mr. Justice Qroce (the only other judge then
In court] concurred in that opinion. Tliat was
a case where hearsay evidence was offered to
establish the identity of lands, and thcreliy a
right to the coals in them, and it was held in'
a£nis8ible. The same doctrine was recognized
by Lord Ellcnborough in Weeks v. Sparke, 1
H. t Selw. 087, where, referring to evidence
of perambulations, he admitted that they
not evidence of a particular act done, as that
1.— See Blarkett v. Lowa, 2 U. k HHw. 404.
a. — Bee 1 Burkie's Evidence. 32. 3.t, serond I^n-
don edlElOD; 1 Philips an EvrdPnre. cli. T. sec. 7.
D. 17B. It2i MorawMMl v. Woad, 14 Uast's Uep.
such a turf i^as dug, ot iueb a post put down
in a particular spot. So tSi. Chief JustieM
Mansfield, in hie opinion on the Berkeley Pee-
rage case (4 Camp. Rep, 415], after alluding
to the evidence of what dead men have said, a*
to the reputation of a right of way, common
and the like, said, "a declaration, with rejjard
to a particular fact, which would support or
negative the right, is inadmiuible." Lven in
eases nearly a]>proachin^ to those of pedigree,
where hearsay is admissible of particul.ir facts,
such as marriages, births and dVatbs, and their
respective times, it has been held that ticariay
OS to the place of birth is not admissible; for
it turns upon a single fact, that of Iocality,and
that ought to be proved by the ordinary course
of evidence. Rex v. Erith, 8 East's Rep. 53!l.
In Mima Queen *. Hepburn, 7 Cranch, 200,
the court decided that hearsay evidence was
not admissible to prove a specific fact, altnnngh
the witnesses to the fact were dead; and, there-
fore, evidence of hearsay that the ancestor of
a person suing for freedom was free, was held
inadmissible. The same point was a^ain de-
cided in Davis v. Wood, 1 Wheat. S; 3 Cond.
Rep. 405.
Upon these doctrines and authorities, we are
of opinion that the evidence in tlte present
exception stated was rightly rejected. It was
evidence not to general reputation as to bound-
ary, but to particular facts and circumatancei
attendant upon the original making of Remey's
survey. _ _
The iic.\t exception, is founded upon the is-
Fusal of the court to permit testimony to be
given of the declarations of one Kiucaid (the
surveyor of Rtniey's survey), under the follow-
ing eircumstiinces! Kincaid had been exaroined
OS a witness for ths demandants (hy way of
di'pnsition), and the tenants tliereup:in gave in
evidence the cunversationa and declarations
of Kincaid, to certain witiicises, in order
'to discredit his (Kincaid's) testimony, {*43*
and to show that be bad stated that the. survey
was made by him at the mouth of Raccoon
Creek, for Remcv, when it was his interest to
place it at Pond Cnek. The dciiandanU
then, with a view to sustain ICincjid, and to
support the slatcnieiits going to Ui» interest,
offered witiirsscs to prove tJte statements and
convcTBaliuns of Kincaid at other times, cor-
responding with the statements made in hi*
depusition, relative to his making the surveys
of Thompson and Rrm^y; and it being sug-
gested by the demaniUnts, upon an inquii;
from the court, that th?se Btat>-menta and con-
versations were subseiuent to those trnlified to
by the tenants' witnesses, tlie court, upon as
ohjection taken by the tenants, excluded tbe
evidence. In our opinion the evidi-nce was
rightly excluded.
Where witness proof has been olTered againat
the testimony of a witness under oath, in order
to impeach his veracity, establishing that he
has given a dilTeient acn"iint at another time,
ive are of opinion that, fn yenoral, evidence is
not admissible in ordei lo confirm his testi-
mony, to prove that at other timc^ he h&s
^ircn the same aecoiint as be has und<'r oatlii
for it is hut his n>cre declaration of the fact,
and that is not evidence. His testimony under
oath is better evi.ience than his confirmatorj
declarations not under oath, and the rcpelitioB
Elucott a
> MnjiEDrTH *. Pkabl.
43>
ef kla uwrtlons iloes vat can; bii credibJIIti
farther, if ao far, as his oath. We say ti
general, because therp are etceptions; liut thp;
■IV of a peculiar nature, not applirablr to t1i
drcniDstjiDces of the prnsfnt cane; as wher.
tke teatimonj' is ssaailed as a fabrication of a
recent date, or a complaint recently made; foi
thrre, in order to repel such imputation, proa
of the anteceHcnt declaration of the party may
be admitted.
It is true that in Lutterel t. Reynell, I Mod.
Rep. 282, it was held that though hearsiy bt'
Dot allowed as direct evidence, yet it may be
admitted In corroboration of a witness's testi-
mony, to show that he affirmed the same thing
upon other occasions, and that be ii still con-
stant to himself. Lord Chief Baron Gilbert
baa asserted tbe same opinion in his Treatise
<ni E video ee, page 13fi. But Mr. Just
Bailer, in his Nisi Prius Treatise {paj^
£94) aa^a^ "But clearly it is not evidence '
chief; and it seem** 9tnibtful whether it is
in reply or not." The same question ca:
before the House of Lords in the Berkeley
Peerage case; and it was there said by Lord
Redesdale that he had always understood that
for the purpose of im|>ugning the testimuny of
a witness, his declarations at another
might be inquired into, but not for the purpose
440*] of confirming *his evidence. Lord
Eldon expressed his decided opinii
was the true rule to be observed by the counsel
in tbe cajise.' Lord Chief Justice Eyre "" '""
represented to have rejected such evidence
vheit otferetil on behalf of the defendant
prosecution f>— forgery ' We think this i
only the bette" but the true opinion, and well
Founded on th general principles of evidenc
Tltere is thU additional objection to the admi
sion of the confirmatory evidence in the present
case, tha i< is of subsequent declarations,
whieb woul'' enable th witness at any time
In control tho effect of the former declarations,
which hr wa* conscious that he had made,
and which ht might now liave a motive to
qualify, or wfaken. or destroy.
In tbe further progress of the
ants ii- ordti to prove the boundaries of the
demandants' land, as laid down in the plat,
and claimed by them, gave in evidence tbe
original plats and certificates of survey of Kin-
I thoi
! thni
tracts, and then examined MTfeal, a witness of
the demandants, who was first introduced to
prove their boundary ; who stated thiit the
water -courses, as found on the ground, did not
correspond with those represented on the said
plats and after being examined by the de-
mandants for the purpose of proving that tha
inarks on the trees, claimed by them as the cor-
ner and lines of their surveys, wrre as ::Ncient
as the said surveys, and also as to the position
and otherwise of the lines and corners claimed
by them, and represented on the plat made and
nsed at the trial .ituted, on the cross-examina-
tion of the tenants' counsel, that some of the
■inta. marked to suit the calls of the said sar-
veya, appeared to be younger, and others, from
their appearance, might be as old at the date of
l.—Clled Id 1 FhllllM on Eridence. cb. 8, pi
Starklv'e
ISvldence. lt>T,
Ihe said plats. The demandanta. to eminteract
his evidence, and to susiain their claim, olTered
in evidence a survey made out by M'Neal, in
tin action of ejectment formerly depending be-
'.wccn the same parties for the same land, of
vhich survey Pearl had due notice. The ten-
ants objected to the reading of the explanatory
ipport accompanying this survey, and tbecouA
refused to allow ao much thereof as stated tbe
appearance as to n^ and otherwise of the lines
and comers to go id evidence to the jury; and
accordingly caused to be erased from the plat
the words following, vii.. "ancient" (chops) —
"John Forbes, Jun., 'stales be cut the [*441
same letters and figures" — "on the east side,
the chops appear to have been marked with a
larger axe than the chops on tbe beginning
tree" — and then permitted the residue of the
report and plat to go in evidence. This consti-
tutes the third exception of the demandanta.
We are of opinion that there was no error in
this refusal of tbe court. Strictly speaking, the
demandants had no right, upon tbe principles
alreotly stated, to give in evidence anv other
jirior statements of M'Neal to confimi his testi-
mony. But, in truth, the evidence was offered
10 discredit, in part, his present testimony;
and certainly tbe demandnnts were not at liber-
ty to discredit their own witness by showing bis
former declarationson the same subject; though
they might show by other witnesses that he was
mistaken. But independent of these objections,
the evidence was inadmissible upon general
principles. It was mere liearsay. The survey,
made by a surveyor, being under oath, is evi-
dence as to all things which are properly with-
in the line of his duty. But his duty is con-
lined to describing and marking on the plat tha
lines, corners, trees, and other objects on tbe
ground, and to subjoin such remarks as may
explain them; hut in all other respects, and as
to all other facts, he stands, like any other wit-
ness, to be examined on oath in the presence of
the parties, and subject to cross-examination.
The reason why a survey, made by a publie
surveyor in discharge of his public dutier, is
admitted as evidence in suits between other
parties, is, not that it is hearsaj-, but that the
act is officially done under oatli, and in dis-
charge of his duties to the government and the
public. But it has never been supposed that
if in flUch a survey the surveyor should go on
to state collateral facts, or declarations of the
parties, or other matters, not within the scope
of his proper official functions, he could thereby
make them evidence as between third pcr:iona.
In the further progress of the trial, the de-
mandants, after the evidence was closed on both
sides, moved the court to instruct the jury that
if they believed, from the evidence, that the
survey of Remcy and the adjoining survey ol
Thompson, were, in point of fact, made at the
mouth of Fond Creek, by beginning at or near
the letter "L," on tbe plat, that the law locates
the patent on the ground where it waa actually
aurve}*ed, notwithstanding tbe call or reference
on the said patents, or either oF them, to [for]
the mouth of Raccoon Creek; and if they found
that tbe patent df Rcmey, as surveyed, docs
nut intertdc with the claim of the demandants,
that they ought to find 'for the de- [*44a
msndants. unless they find that the defendants
b>ve had possesaioB by an a«tual leajdence or
4»7
Mt
guPBKKx CouBT <ff IHB Uhitb* Statbi.
lenoo" within the pfttont of the demandants
tlilrtf years or more before the bringing of
iJieM [suits]. The court refused to give this
butruetion. as moved i but gave the instruction
U moved after BUhatitiiting for the word"fence"
the words "improvements with the intention of
taking possession." To which refusal the de-
mandants excepted.
It is wholly unnecessary for us to consider
whether the instruction, as given, is maintaina-
ble In point of law or not; and the only qiies-
tton is, whether the refusal to give it aa prayed
for was incorrect. But this resolves itself into
the point whether It is absolutely necessary to
constitute a possession of land, sufficient to
bar an adverse title thereto under the statute
of limitations limiting write of right to thirty
years, that there should be an actual residence
or fence by the party claiming the benefit
of the statute) that is, an actual residence on
the land, or a pedis posscssio of it by an In-
closure. The argument in support of the in-
struction, as prayed, assumes that there can
be no possessioa to defeat an adverse title,
except in one or other of these ways; that
is, by an actual residence, or an actual in-
closure, a doctrine wholly irreconcilable with
principle and authority. Nothing can be more
clear than that a fence is not indispensable
to constitute possession of a tract of land. The
erection of a fence is nothing more than an act
presumptive of an intention to assert an owner-
ship and possession over the properly. But
there are many other acts which arc equally
evincive of auch an intention of assorting such
ownership and possession: such as entering
upon land and making improvements thereon,
raising a crop of corn, felling and selling the
trees thereon, etc., under color of title.
An entry into possession of a tract of land,
under a d«ed containing specific metes and
bounds, gives a constructive possession of the
whole tract, it not In any adverse possession;
although there may be no fence or inclosure
round the ambit of the tract, and an actual res-
idence only on a part of it. To constitute ac-
tual possession, it la not necessary thut there
should be any fence or inclosure of the land.
If authority were necessary for so plain a prop-
osition, it will be found in the case of Moss v.
Scott, 2 Dana's Kent. Rep. Z7&, where the
court say, that "it is well settled that there
may be a possession in fact of land not actually
inclosed by the possessor." But this subject
will naturally arise and be considered more
fully under the next Instruction prayed for;
and it is only necessary to say that we pcr-
443*] oelve *no error in the refusal of the
court to give that which was here prayed for.
The demandants then prayed the court to
instruct the jury "that unless they find that
Reroey's survey covers the patents under which
the demandants claim, the settlement of M'Cam-
mon within the two thousand acre* does not
give a claim to a possession within the one
thousand acres patent; nor does the possession
within the one thousand acres patent give any
possession within the two thousand acres pat-
ent. That, as to the two tliousand acres, the
statute runs as to that from the time a poaacs-
•ion was taken by an actual residence, or by
fencing; and the tame as to the one thousand
ures; eonsequentlj, that if they [the jury]
find that one has been thus possewed ad*ctady
for thirty year* next before the bringing of
this suit, and the other not; that as to the
other not sn beld, they should find against such
tenants as were within such patents at the date
of the demandant's writ; provided these settle-
ments are not included in Heme;'* or Thomp-
son's surveys, as originally surveyed.'
The latter part of this instruction as prayed,
is disposed of by the considerations alrody
suggested under the preceding head. The other
part may require some further explanations, in
order to show ita bearing and pressure. The
tract of sevcD thousand acres conveyed by
Edwards to Pearl, included, as baa been already
stated, both of the tracts of two thousand acres
and one thousand acres claimed by the de-
mandants, within its boundaries. The house
and settlement of Pearl were on the southern
side of the one thousand acres tract, and the
house and settlement of M'Cammon were with-
in the two thousand acres tract, and near the
centre of the eastern line of that tract. Pearl
entered Into possession of the seven thousand
acres tract under his deed from Edwards; and
as that deed described the tract by metea stnd
bounds. Pearl must, upon the principles already
stated, be deemed to have been in posseasion M
the whole tract; unless some part of it WKa,
of some other claimant. In short, his entry
being under color of title by deed, his poaaea-
sion is di-emed to extend to the bounds of that
deed; altliough his actual settlement and im-
provements were on a email parcel only of the
tract. In such a cose, where there is no ad-
verse poaaesaion, the taw construes the entry to
be coextensive with the grant to the party,
upon the ground that it is his clear intention to
assert such possession. This doctrine is well
settled. It was alarmed by this court in Biarr
v. Gratz, 4 Wheat. Kep. 222, 2:>3, *and [*444
it liaa been fully recognised and acti'd upon bjr
tlie State courts of Kentucky. In Fox v. Hin-
ton, 4 Bibb's Rep. 659, it was held by the
court that where two patents interfere in part,
and before possession is taken under the elder
patent, the junior patentee enters upon the
land within the interference with an intention
to take possession, he shall be construed to be
in possession to the extent of his claim. In
Thomas v. Harrow, 4 JMbb's Bep. S63, the
same court held that a person entering on land
under a deed of conveyance specifying the
boundaries, is in possession to the extent there-
of; although the person making the convey-
ance had only an entry, which did not appear
to cover the land, and which had not been per-
fected by survey or patent. The eases of
Smith's Heirs v. i.ockridge, 3 Littetl's Rep. 19,
20) Gates v. Loftus, 4 Monroe's Rep. 442;
Moss V. Currie, 1 Dana's Kent. Rep. 267;
Boyce ▼. Blake, Z Dana's Kent. Rep. 127;
Smith's Heirs v. Frost's Devisee, 2 Dana's Kent
Rep. 148, 149; and Harrison v. M'Daniel, i
Dana's Kent Rep. 3S4, are to the same eSoct,
and contain a full exposition of the doctrine.
M'Cammon, having entered under Pearl, his
possesaiun must he deemed consistent with the
title of Pearl. There is, however, no proof of
the nature or extent of his claim in (no earn.
If he entered under a deed from Pearl, tbcs
hia poasesuon would be co-eztensive witb the
P«tei« 1*.
Owixw V. TixmiiAx's 1
_._ praicribed In th»t deed. II he an-
ithout deed, hit posaesBion miut either
be deemed * continuation of that of Pearl,
bounded by hii actual oceutMiQCj. In Jonea
Cbiica, 2 Dua's Rep. 28, it was held b; the
conrt that if • landlord settlea a tanaat witliout
booids npon a tract of land, he is in poeaeaaion
to the limita of the claim. But if the tenant ia
mtricted bj metea and bounda to a part only
of the land, the hudlord'a poasession la in like
■lanner limited. And upon the eome princi-
ple* tbe oourt held that if the proprietor of a
tract aella a portion of it dealgnated by metes
and bonndj, and tbe vendee enters into posses-
■ioa, hie entrv muat be deemMl of hi* own
land only; and It has no effect aa an entry up-
on or poeaeaaion of the rest of the tract.
If with theae prlnciplea in Tiew we ezamins
tb* iiutruetioa aaked of the court, it will be
fonnd open to much objection. It kmi
certain facta sa ita basia which were not in
dense; or, if in evidence, they were for the de-
diion of the jury. The court were asked to
inatruet the jury that "the lettlement
U'Ckmmon within the two thousand acres tract,
did not give a claim to a poaseasion within the
44S*] 'one thouMind aerea tract;" without
ascertaining whether the claim or title of
IfCanunon extended into the Utter or not.
How, it is plain tliat if this claim or title did
ntend Into the latter, be would have had a
BonatrnctiTe possession to the extent of that
elaim or title. Tbe other part of tbe instruc-
tion aaked is extremely va^e. It is, "nor does
the poaseaaion within the one thousand acres
patent give ai^ poaaeaaion within the two
Uwuiand acrea. It ia not said by whom the
pneaeiiion is supposed to be, whether by U'Cam-
■on or by Pearl, or by any other person. It
ths poaaeaaion intended was that of Pearl, as
both traeta were within his tract of aeven thou-
wnd acrea, it is clear that hie possession would
extend over both tracts, upon tbe principles
already stated. If the poasesaion intended was
that of M'Cammon, it Is open to the objection
already stated — that tbe boundaries of his claim
or title are not aacertained, so as to enable the
■onrt to give the instruction aa matter of law.
bi truth, the instruction asked seems to have
Roeeeded upon a ground perfectly untenable in
Itself; and that is, that as to third persons,
who are in under title or color of title, their
poaaession is to be bounded and limited by the
aature and extent and origin of the distinct
titles of their adversary; and not by that un-
der which they themselvea have entered and
taken posaeBsion. For these reasons we are of
opinion that the instruction waa properly re-
fnsed by tbe eourt.
Tbe last exception now Insisted on, la in the
following instruction, given iy tbe eourt upon
tbe prayer of the tenants: "That if they (the
jury) find, from tbe evidence, that Hemey's pat-
ent does not cover tbe land in contest, yet if
tbej' find from the evidence that the tenants,
or any of them, or those claiming under them,
have bad poaaeaaion of tbe land in contest for
thirty years next before the eommencentent of
lb: demandants' suit, they must find for the
tenants." It is probable that the actual form
in Hhich this instnietlon was aaked was oc-
cr-sioned by tbe agreement of the partiea that
all these actions agalnat tbe different tanaata
upon tbe different writs of right "should be
heard at the aame time," without prejudice to
' that the erl-
and to be ap-
plied to each reapectively," and therefore that
the instruction should be construed accordingW,
reddendo sin^la singulis. But we see no ob-
lection to it in the form in which it wan actual-
ly given, under the circumstancea of tbe pres-
ent case, and the titles set up by the parties re-
spectively. The demandant* claimed adveraa-
1y to all the tenants, upon a title independent
and distinct from theirs. The 'tenants [*44C
all claimed under the title of Pearl, by his deed
of the aeven thouaand acres; that is, under a
title oommon to them all. The demandants
could not recover any tract In controversv, un-
1«BS they were seized tiiareof within thirty
yeara, the period prescribed by tbe statute of
limitations for writs of right. If, therefore,
there had been thirty j^ears' adverse possession
of the particular tract in controversy by anv of
the tenants, tbe demandants bad failed In their
suit, and were barred from any recovery. This
waa the whole purport of the instruction given ;
and, in our judgment, it was perfectly oorrect.
It luM been supposed, at tbe argument, that the
Instruction waa defective in not stating that
the possession was adversary and uninterrupted
during the whole thirty years; and the case of
Forman v. Ambler, 2 Dana's KenL Rep. 100,
110, ia relied on'to sustain the objection. But
the court In that ease admitted that the In-
struction waa free ttota legal exception, as un-
derstood by the court and the parties. And
whatever ground there might be for the court,
in that case, to come to the conclusion that tbe
jury might have been misled by It (with which
we do not Intermeddte), under the peculiar cir-
cumetances of the case, we are of opinion that,
under the circumstancea of the present case,,
the instruction waa deflalte and unambiguous
in ita purport and effect, and such aa tbe taw
justifies.
Upon the whole, tbe judgment of the pircuit
Court ia afflrmed with costs.
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
tbe United States for tbe District of Kentucky,
and was argued by counsel ; on consideration
whereof, it Is ordered and adjudged by this
court that the judgment of the said Ciiwnit
Court in this cause be, and the same la henbf
affirmed with costs.
LUKB TIESNAN'S UCSSBE.
PraeUca.
The transcript of tbe record had been lodged tv
tbe plalntllTB In error with the clerk ot the court
on the 24th of October, 1830. wbo retased to die It
Supbbmi Ooubt or the Umitb» Staibs.
tnlc of tbs e
eted; BlIeglnB the? — - --
qalred ta be done In order to bcluc tlic cau belor*
ibta coui't, Od tbf Diet oC the defendant tn error.
his eouDsel Hied end read Id open court ceitined
cople* of the writ of error, citation and appeal
bond, and of the Judgment ot the CIrcalt ''
and baTlng slatfd that the plalDtllfa la err
*-"-•' — '•'■- "• locketed acMirdlnf
t. the]' mored to hi
case docketed ■
i without the lee
Iloni were oTecruled on the IBtb
1 allowed the plain-
IN error to the arcuit Court of the United
Statea for the District ot Kentucky.
Mr. Underwood, counBel for the defendant
In error [n this cnuae, having Sled and read
3ien court certifled copies of the writ of em
tation and appeal bond in this case, BJid the
judKnient of the Circuit Court of the United
States for the District of Kentucky, rendered
In said cause ; and having stated that the plaf
and their cause placed upon the calendar ot thi
court according to the rules thereof; no'
moved the court to have aaid writ of erra
docketed and diaraiaaed in {nirsuance of the
thirtieth rule of the court; which motion vrni
opposed by Messrs. LonghboroQEh and Critten-
den, counsel for the plaintiffs in error, who
stated that the transcript ot the record of the
oauae bad been lodged with <he clerk of this
court the 24th of October, 1835; who refused
to file the record or docket the cause until Ibt
plaintiffs in error had given the usual fee IhiiieI,
under and in pursuance of the thirty- seventh
rule of this court, of January Term, 1831; and
that at the same time the clerk gave to Mr.
LoughhoroUKh, counsel as aforesaid, a blank
fee bond, which the plaintifTs in error nad not
418*] executed, 'supposinr that they bad done
all that was required by law of them to do:
and the said counsel for the plaintiffs in error
moved the court to order said transcript to be
filed and the cause to be docketed. On con-
sideration whereof, and after mature deliber-
ation thereupon, it was ordered by the court
that the motion of Mr, Underwood to docket
and dismiss be overruled. "And it is further
connidered and ordered by the court that the
motion of Iilcssrs. Loughborough and Crittenden
to have the transcript died and the cause dock-
eted without the usual tee bond, be, and the
same is hereby overruled. And it is further
now here ordered by the court, that upon the
plaintiffs in error giving to the clerk the usual
fee bond, he, the clerk, shall file the transcript
and docket the cause. And it is further now
here ordered by the court, that if the plaintiiTs
in error shall fail to give to the clerk of this
court the usual fee bond required by the thirty
seventh rule of this court, of January Term,
tB31, on or before the Ist day of Mai'cb next
ensuing this date, that then and in that case
the writ of error in this eauae shall be dock-
eted and dismisM^"
490
■JOHN VOORHBBB, Jeremiah Letton, ['441
Schoney Achlej, and Nicbolaa LaiiEwortb,
Plaintiffs in Error,
JAMES JACKSON, ex den. The FrMldHt,
Directors and Company of thd Bonk i»f Ik*
United Statea,
Judgment of eourt ot competent jurisdiction —
land sold under foreien attachment li
regularitiea— italay cd detendanL
EJeetmeDt for a tract of land commenced In 1831
which had been sold nnder the fareiia attachment
lan-s of Ohio: the defendants In the eJePtiuent bf
Ini In posBSBslon under the defendant In the attach-
ment. The ludsment, In the Cocomun Pleas ol
Ilamlltan Count;, Ohio, In the attachment lult, was
entered In 1808. Tbe writ of attachment was it-
tamable to April, 180T ; and II recited that It had
been suffldentV tastlBed to the court that tbe ds-
tendSDt, not residing In the State, was Indebted to
the plalntil. The tract of land was allacbcd. and
returned with an Inventory and ■PLiralM'miot. The
defendant havlns made default, auditors were
appointed, and at December Ti-rm they made a re-
port, finding due to the plaintiff $207. The
ordered the property to be sold by the eudltor
April Tern "-^" '■
S remises f^
need the I
by deed to Samuel fottcr and miliam Woodnard.
who on the same day, :;Sth ot May, 1808, conveyed
selaln, i „. ... . ._..
plalnllfTB In the ejectment derived tttlc-
!red the property to be sold by the eudltora. At
II Term, 1SD8, they reported they had sold tbe
Discs for tllO. The court, an Insppcllon, con-
conveyed
Tbe I
mlty with tl
: Ofab
derived It"-
***" B?| I .
^a afnil.ivlt^ as re^iulred by
the statute, win foiii3 fiJi-a wlih the clrrk : and the
law provides that, If this la not done, tlic nrlt shall
be quashed, on motion. !. Three mombB' n'ltlce ot
flfteen days' notice Is to^ given by J be suditon :
dercndant la to lie railed three times prcc.dlur
Judgment, and the dpfaults recorded. Ko record
appeared to have been made, 4. Audltnre are not
lutbs, and It did not appear
',m was shown In the
Bv THH Coubt: The aeverai court
■as of ntilo, at the time of the^ie
TO courts o^ genera) cirll lurlEdlclK
s added, by the Act of 1805,
connection bet wee
..^^-.v — , and order a sale of the properly at-
•i OD certain conditions ; no oblecllon. there-
can be made to thetr Jurfidictfnn over the
the cause of action or Ihe property attached.
process which they adopted nas the same as
■ribod by the law; they ordered a F.a1e. which
executed, and on tbe return thereof mve It
conHrmatton. Thin was the Judement ot ■
; of competent lurlsdlclloa — '"
preceding the sale, anlrnilnfr thcli ... _ ...
._ .L-.- jndgmcnt had aOlrmed tbe
' — ' rlnclplt^ of law
of a court o(
been "rightly'donetiJi the contV'
rule applies as veil to every ]
from the' Initiation to tbMr completion,' as to ttacif
adjudication that Ihe plalntllT has a right ot ac-
tion. Every 'matter adjudicated becomes [*4B»
lart of tbelr record; which thpn'-eforth prove*
'If, without referring to tbe evidence on whlcb It
been adjudged.
That some sanctity should be given to iDdlcdal
, .cecdlOEs; some time limited, bcyood wblch tlMV
should not be questioned ; aomc protection afforded
to those who purchase at sales by Judicial p
eiletence of a debt. Th<
competent Ji ' ' —
all the
■i-a. Tbla
_ definfte ruTes estabirsbed' by which prop-
erty thus acquired may become transmissible, wl&
securlly to the poaaessors, caanut be denied, tn
this country particularly, where property, wbleb
within a (ew years was but of little value, 1b a
Feten 1*.
ISM VOOBHEBB n AL. *. JACKSOK, KX DKM. Tbk Bahe ot thb Dritd SiAnts.
a. Ii now tha rite at iRrne and Soarliblnf
8 en]a;ui<?Dt ihould bt »t leait u wt~-'-
B( country vhm "- — '■— '■ '— '
II IR amonx tlie el
^ , _.__,__arr priDcinieB of the coni'
t whocrtr would camplalu of the pro-
ntdlsRi or ■ court must do it [n aucti time as Dot
to Injur* bti adTennrj by unuecessar]' delay )" ">'
■BFrtloD or bin ricbt. It be obJi?cI« to the mixle In
•bleb be 1» brought Into court, he must do It bfr
Be3ln^"'kL"in9t'lilai'are not couduiled accoidloB
Ht thpm aside for Irregularity ; or. It there Is any
delect Id the torm or raiDner In which hu la sued,
ht may amlifn thone defects specially, and the i-ourt
*11l not boFd him aoawprable 1111 such di-fccts are
rtmwlled. But It bi- pli'Rile to the action BpncrallT,
all IrrrEUlarlty la waived, and the court can decide
onl.r nn the rights of Ihe parfles lo the lubject mal-
ro con rOTersy. . r f™. ^ ^^^ plalntlir'har
„ ... J lo the iniuE aeuianam. — "— ' '- — •*—
IDE Jud
In sett I
it, are
SB iou u Uiia IndRnienr'reDiainB in toi.., .. —
ta Itwit CTldeiiea of tbe right of the plaShtlir to
Ikt thine adjudged, and glyei him a rlRht to proc-
«a to eiecnte tba Judgnient ; tha arrora ot tb*
(oaR bowerer apparent, can bo eiamlned only bj
an appellate pow<>t, aiid by the li — '
— 1 time la fixed for aacb
In
Kolrale'
wn who comptalna o( .
anil blmsaif of bla legal
rlgbla Id
the blm ibould
_ir~that thar't[iue''BiioaTd~ba limited hj law.
Tha line wbleb aepBratea error in Judgment from
the naarpatioa of power ta yen deflnlte, and li
preciaely that which denotei the caaea where a
Judginent or decree [a reTeratt>1e only by an appel-
late court, or may be declared a nuttriy col laterally,
when It la oirered In evidence In an action concern-
ing tbe matter adjudicated, or puTporllDg lo bava
been so. In tbe one caie It 1* a record Importing
-•.„. — — .•_ ,_ ..._ --...- waste paper;
Ijcned to Judi-
cial pro«eed1nga. wblcb are Irreyeralhia tor
! Terlty, In tbe other,
- '" middle character aailjrni
. _. , „_, wblcb are Irreyeralhla
8nch la thdr effect between the narttea I
and aacb are tbe Inunnnltlea wbleh the law afTorda
la a plaintiff who baa obtained an erroneona Jndg-
The f
rati or
ton, 4 Wbeai. Doe : a Cond. Rep. 119; ToimIe T.
Tbompun. 3 Petera. 15T ; ETlfbtt T. Flenol. 1
Petera. 340: Wright et el. t. The Lesaee of Ilol-
llngawortb. 1 Petera, 169, Taylor T. Thompson, H
Petera, 370; The United Btatci t. Arredondo. 4
Petera, 729, died.
IN error to tbe Circuit Tourt of the United
8tat«a for the District of Oblo.
Tbe President a,ad Directors of tbe Bank of
46t*] the United Statea institated *sn action
of ejectment in 1831 for the recorerr of a tract
of land in tbe Coontv of Hamilton, In the State
ot Ohio. On the trial ot tbe case, in order to
eatabiiah their title, they gave in Evidence to the
joiT tbe prooeeding* in an attachment against
8etK Cutter, in the County Court ot Hamilton
Cotintj, commenced In 1807 ; under which the
tract of land in the ejectment waa aold, in 1S08,
«I April, 1S08. The sale waa confirmed hj the
eoDrt at August Term, 1608; and, according to
tbe proviaiona of the attscbmeut law of the
liam Foster, tbe purchasers of the property lold'
ThU deed waa executed on the ZSth daj of
Haj, 1828, to Woodward k Foater, who on
the aame dM conveyed the same to William
SUnley.
Tbe tefeiuknU In tiw clMtment eUimed titi*
f !..•«.
to tbe premisea, which were In their poaaemioa,
under Setb Cutter. They insisted that the pro-
eeedingB in attachment did not devest Setb
Cutter of his title to the land; but the court in-
structed the jury otherwise. The jury gave a
verdict in favor of tlii- plaintitr». To the judg-
ment of the Circuit Court, on the verdict, the
defendaota below prosecuted this writ of error.
Tbe record of the County Court of Hamilton
County, in tbe attachment against Seth Cutter,
and the opinion of the Circuit Court upon the
title derived under it, by the plaintiffs bflow,
were brought up W a bill of exceptions. The
whole proceedings in the attachment are sLited
fully in the opinion of tlie court.
"nie case was presenter! to this court, on
Srinted arguments, by Mr. Caswell and Mr.
tester for tbe plnintifTs in error, and by Mr.
Fo2 ajid Mr. Chase for the defendants. Mr.
Sergeant also delivered to the court a written
arifument for the defendants in error.
The printed argument of the counsel for the
plaintiff Ln error, presented for the oonsidera-
tion of the court, was as follows:
I. Were the proceedings in attachment ml-
ficient to devest the title of Seth Cutter to the
premises in dispute I
&. Was that title by auch proceedinga, and
by tbe deed made, *est«d in Samuel Foitet and
William Woodward!
The plaintiffs In error hold the negative on
both these points.
'The powers of courts are of two [*4BI
kinds, ordinary and extraordinaiy. Ths first
ar« those general powers of adjudicating be-
tween the parties, the defendant being within
reach of their process, upon matters within the
general cognizance of the tribunals, as estab-
lished by law. Tbe Constitution or laws estab-
lishing the respective courts of the Union or
the suites, define by marked boundaries, these
general powers, as distributed to the different
courts, and fix the limits to their respective
juriedietions. Within these boundaries their
power Is exercised according to their own dis-
cretion and judgment of the law, and their ad-
judications are conclusive upon tbe rif^bts of
the parties, unless tbe case be regularly brought
under the review of an appellate tribunal.
Tbe constitutions of judicial tribunals are to
be carefully distinguished from those laws
which are made for tbe enlarsioK, defining or
circumscribing the rights and liabilittej of in-
dividuals constituting the community, over
which the powers of legislation are exercised.
From the former, a court derlTea its existence,
its mode of being, and the essential qualities of
its nature. They confer upon it its powers, de-
fine its jurisdiction, and limit its capacity, in
expounding these fundamental laws, in which
its judges have, if not a personal, yet an official
interest. It can claim no right to bind the con-
soienee or control the judgment of an^ other
tribunals, not subordinate, before winch the
question may arise, whether its construction
and judgment were right or wrong. It must be
resolved by looking at the law itself.
Tbe extraordinary or spetial powirs corp'
ferred upon eourta »re of tbe same niiture. Re-
lating like them to their own pnuir and jiiria*
diction, they have no exclusive right to judge
of them, so aa to silence tb* judgment of other
tribunals, pot subordinate, when tbe qupstion
4" I
BUPBEUB COCBT or THK UlTTTBD UTATBS.
ia whether the power exercised baa been con-
ferred. In other words, the exercise of n power
by a court does not prove the rightful existence
of the power. And when a special power la
conferred to be exercised in i certain mode, it
li egually comtieteilt tot- another tribunal to
consider whether the power hM bceh exerciseJ
iU the mode prescribed; far, in such cobs, the
mode Is an ingredient essential to the power,
constituting, indeed, a condition on ttliich the
power depends. In such case the act is bind-
ing, or nugatory, as it pursues the mode or is
done in disregard of it. And the record, to
bind the rights of the parties, must show that
the power has been exercised in strict conform-
ity to the mode prescribed. It is not sudicient
4SS*] tliat 'the mode has been pursued in
thref out of four, or nine out of ten of its parts.
It must be wholly pursued, to make the act
valid. If twenty ' 'iigs are required by the
law to be done by iiic court in exercising such
special power, these being specially required,
must not only be done, but speciHcstly appear
on the record to have been done. The omis-
sion of one i* fatal ; and a court, before whieh
the adjudication shall be collaterally brought,
cannot hold a right to be vested, or a title to he
devested, by a record showing such an omission.
See Hoae t. Himcly, 2 Peters's Cord. Hep.
100, 101, 102; Grifiith v. Frazier. B Cranch, 0;
3 Johns, Cas. 108; Rex ». Luke, 1 Cowper, 26
(Lord Mansfield's opinion, p. 29]; 1 Bur. 877;
4 Bur. 2244.
In Bmith v. Rice, 11 Mass. Rep. SIO, It Is
held that althouf^h the court have jurisdiction
of the subject matter, yet if the pruceeding^
•re not accoiding to the course of tne commun
law, and the statute be not strictly followed,
I'le jud^ent is abeolutely void, and vests no
right. See also, Davol *. Davol, 13 Mass. Rep.
2fl4.
The statute respecting attachmenta, in force
at the time of these proceedings, will be found
in 1 Chafe's Stat, p. 402, passed in 1803, Sec-
tion fiftei'ti of this statute enacts:
"That the goods, chattels, lands, tenements,
rights, credits, moneys and effects, of persons
residing out of the State, shall he liable to be
attached, taken, proceeded against, Bo)d, as-
signed and transferred for the payment of their
debts, in the same manner, as nearly ai may
be, as is herein provided, with respect to other
debtors: provided, that instead of the oath or
aBlmiatlon hereinbefore provided, the applicant
foh such writ of attachment, his agent or at-
torney, shall make oath or aOirniatian that
the defendant Is not, at that time, restdeiit
within the State, as he verily believes; and that
the said defendant is justly indebted to him in
vided, also, that no judgment shall be entered
by virtue of this section, until notice for the
space of three months shall be given In one of
the newspapers published la this State, of the
issuing of such attachment, and at whose suit,
against whose estate, from what court the same
Issued; and that unless the deFrndnnt In attach-
ment shall appear, give special ball, and re-
ceive a declaration, judgment will be entered,
and the estate so attached sold for the benefit
of the creditors."
For tlie other provlsiona regulating foreign
4ia
attachments we ar« 'referred to thoM [*4ft4
parts of the statute relating to domestic attach
ments. The first section relates to the oath to
he taken bv the plaintiff, the substance of which
is changed, in the Section just quoted, to aC-
commodatb it to thb case of a nonreiident
debtor. It provides before what officer the
oath may be taken; that it shall be taken and
Qled with the clerk of the court, and that any
writ of attachment issued before the oath oi
afflrmatiou be so token and filed, shall be
Juasbed on motion. Sections two, three, four,
ve, six, and seven relate to the mode of txt-
cuting the writ, garnishees, costs, trying the
right of property, et«. Section eight is in
these words:
"The court, at the return of auch writ ol
attachment, shall appoint three discreet per-
sons to audit and adjust the accounts and the
demands of the plaintilTB, and so many of the
creditors of the defendant :□ attachment, as
may have applied to the court, or shall apply
to the auditors for that purpose, before they
shall have closed their report, which report
shall be made in writing, signed by the said
auditor!, or any two of them, and snail be i«-
tumed to the court from which such writ of
attachment issued, and at the third term. In-
cluding the term to which the writ of attach-
ment was returned, final judgment shall be en-
tered on such report: provided, that the de-
fendant shall have been called three times, at
each of the said terms, and tiave made default,
and those defaults shall have been entered by
the clerk," etc.
Section eleven of this act is the last to which
we dcom it necessary to call the particular at-
tention of the court. It authorizes the audit-
ors, by virtue of an order from the court, to
sell the lands and tenements, etc., attached;
"provided, that notice of such aale shall be set
up in writing, at three of the most public places
within the county, at least, or be advertised in
a newspaper, published in the county, for the
apace of fifteen days, at least, prior to such
aale; nor shall any sate be made of such land*
and tenements, in less than twelve calendar
months from the return of such writ of attach-
We will present at one view the requireroenta
of the statute to which we ask the attention of
the court.
1. The plaintiff must make and file an afDda-
vit before anv writ of attiicliment can Issue.
2. This amdavit must alate that the defend-
ant is not a resident within the State, aa plain
tiff believes.
3. An advertisement, minutely described I&
the statute, must be 'published in some [*4SS
paper of the State, tnree months before maj
judgment can be rendered.
4. No judgment can be rendered a^inst Um
defendant until the third term, and then oqIt
on the express condition that at each of said
terms he shall have been three time^ called,
and have made default, and those default* shall
have been entered by the clerk.
fi. No sale of lands can be made by the audit-
ors in less than twelve months from the return
of the attachment.
fl. The auditors are required to give at least
teen days' notice, by advartisement, of the
le.
Petcn 1*.
righto
thia
UM Voosacu r au v. Jackbor, ex deu. Tbe Bark or thk Uhrbd Stach.
None of theae reqnirementa of the statnte
app«*r to h«ve been complied with. The elerk
hM oertilled that the transeript containi *11 the
mattera of record, or ,ou file, In the cause.
There Is no affidavit or mention of an afSdavIt
in th« transcript. The Court of Common Fleaa
hul no jurisdiction of the matter until thia waa
made and filed. The defendant waa not with-
in the jurisdiction of the court, or liable to its
proceaa, and bis propertj could only be pro-
ceeded against and subjected to sale, upon the
making of such an affidavit or alGrmation as is
prescribed in the statute. Any process, and all
the proceedings founded upon process of attach-
ment, are a nullity without this. There is no
room here for presumptions. Where title de-
pends upon a record, nothing is to be presumed
which does not appear in the record. Proceed-
ing* o( courts can he ahown only by their rec-
ords, and what the law requires to be recorded
cannot be presumed to exist where the record
does not show it. The writ isaued recites that
whereas the plaintilT had sufficiently testified.
In what manner he testified, whether hy a ver-
bal oath or assertion without oath, does not ap-
pear- It does appear that it was not in the
manner required, for then the oath would have
made a part of the record. And it is not re-
cited in the writ that be had even testified that
the defendant was not then resident within the
Stmte. The cleric himself seems to say that he
waa not a resident. The language is, "haa
sufficiently testified that Seth Cutter, who is
■ot now a resident of the State."
We conceive that the want of this affidavit is
fatal to all tbe subsequent proceedinga, and
that any judgment rendered in the cause was
The next defect in the record is that it does
not appear that tbe attachment was advertised
according to the statute. This was the mode
required by the statute for perfecting service:
4&6*J it was necessary *to make Cutter a
party to the cause to make the proceedings
binding upon him. Without such a notice, hia
rights could not be affected by any judgment
rendered in the cause. This matter ia settled
by the Supreme Court of Ohio in Colwell, Adm.
V. Bank of SUubenville, 2 Ohio Rep. 229, and
in Taylor v. McDonald, 4 Ohio Rep. ISS, 150.
Chief Justice Marshall, in the case of The
Mary, 3 Feters's Cond. Rep. 312, sa^s: "It is
a principle of natural justice, of universal ob-
ligation, that before the rights of an individual
be bound by a judicial sentence, be shall have
notice, either actual or implied, of the jiroceed-
ings against him," The only mode in which
implied notice could be given the defendant,
In attachment, ia by publication. No publica'
Uon was made; no actual notice pretended: of
eouraa the party was not bound by the judg-
ment, and b)s title to the land was not devested.
The court was authorized to give judgment
at the third term only on the express condition
that, at each of the three terms, the defendant
had been three times called, and had made de-
fault, and theae defaults were entered by tbe
elerlc At the first term he waa regularly
called and defaulted, according to the statute.
At the second term there ia no entry of eallinfr,
or a default. At the third term be was called,
bat whether once or more does not appear.
TIm court, in this state of the record, bad no
• It. «d.
Twelve calendar months must, according to
the terms of the statute, elapse after the return
of the writ, before any sale could be made of
the lands of the defendant. It does not epprar
either from the return of the auditors or their
deed, when the aale waa made. The order foi
sale, such as It was, was issued long before th«
expiration of the twelve months, and of coiirsi
before the land was liable to aale. It is muI>
mitted that the court could make no order ot
this kind before the end of the twelve months
They must wait until the land ia liable lo aalo
before they can order it to be sold, Tlinl ordel
is in prsaenti (not limited to a future tiinel
to do that which there was no riglitFul author-
ity to do. Such an order seems to us a nullitf
At least, if made within twelve monlhs, il
should appear not to have been executed till
after their expiration.
The auditors are required to give at least fif-
teen days' notice of the sale. This does not ap-
pear to have been done. It is not so stntr-d in
the deed. No proof of the tact is adduced.
These auditors were *not regular judi- [*45T
cial or ministerial officers. They acted neither
under the sanction of an oath of ofHce, nor had
they given any security to which the defendant
could resort in case of injury. The pawer con-
ferred must be strictly pursued. No presump'
tions can he made in their favor. That it
would not he nccjsaaiy, to sustain a title ac-
quired under a aberilTs deed, to show that he
had obeyed the law in the manner of makins
hia sale, in every respect, may be admitted^
But it by no means follows that the same lavor
is to he shown towards a title claimed under
the exercise of a special power, conferred on
individuals. All the reasons are against it.
We have not thought it necessary lo remark
upon many things contained in this record,
which, to say the leaat, appear to us singular.
Whether the persons who adjusted the accounts
again.lt the defendants were auditors or ref-
erees, seems to be left in doubt. The nature of
the claims against the defendant, by what
evidence supported, or how ascertained, does
not appear. The order to sell, issued to the
auditors, dnea not appear. For alight that ap-
pears in the record, the sale was private, and
without notice.
2. Admitting that the proceedings in attach-
ment would have been otherwise sufficient to
devest the title of Seth Cutter, the deed is not
suflieient to vest that title in Samuel Foster and
William Woodward. So far ss we can conjec-
ture from the return of the auditors, the land
in question was sold to William Stanley. To
him alone could the auditors convey, Tbe re-
turn of the auditors is necessary to sustain the
deed. Without this it cannot be pretended
that tbe deed would be valid. The subsequent
conv^ance by Poster and Woodward to Stan-
ley, does not alter the principle. They could
convey no title which was not vested in them.
If none was vested in them, none passed hy
their deed. It is not even shi>wn or pretended
that Poster and Woodward were, by any act of
Stanley, substituted in his place as purcliss-
ers. They stand entirely unconnected with
the record. In llie case ot Den v. La,mbert, I
Green's New Jersey Rep. 182, this point ia de
4tt
<B7
BUPBBHB COOIT <W THB UnITB* STATES.
«lded. There one individual wai reported aa
the purtbuer, snd tlie deed wag made to him
&ud another. The quenLion for the court ww,
whether such a den! vested an; title. It was
decided that it did not. If that was a cor-
rect decision, it is conclusive on this point.
It will probably be urged for the defendant
In error, against the vieiva we have presented of
this case, that however erroneous the proceed-
ings of the Court of Common Pleaa may have
45S"] been, yet they "cannot be inijuired into
collaterally; that their judgment is bindins,
until reversed by an appellate tribunal. This
doctrine is true as to matters within the ordi-
nary jurisdiction of courts, where the proceed-
law. But not bo in this ciise. The defendant
was not within their jurisdiction. He could
only be afTectpd through his property lying
within that juriadiction. The court could only
take jurisdiction in a certain state of facta,
irhich must be made to appear by an affidavit
filed. They could subject the property of the
defendant only by a particular mode of pro-
ceeding. He was not a party in court, and
the plaintitf took judgment agHinst bim at his
peril. The purchaser was bound to inquire into
the power of the pt-raona acting as auditors,
and the means by which the property was
subjected to sale. The whole record is neces-
sary to support their title, and to the whole
they abould have looked. The righta of the
party could only be affected by stric'tlj piir-
suing the law. Caldwell v. Biink of Ut«ubea-
ville, and Tnylor v. M'Donald, before cited.
But in relation to inquiring into the regular-
ity of these proceedings collaterally, tiie Legis-
lature of Oliio has settled the qucaiiiin, so far
■8 legislative construction can settle it.
By the Act of February 4th, IHU (2 Chase's
but. 7D6, sec. S), reciting that i^htiPHs it had
been doubted, etc., and for reniDving such
doubts, it was enacted: "That any p..'rdon, in
any suit or proceeding, founded upon, or In
which it may be necessary to show any such
process" (in attachment), "procivding or judg-
ment, may be permitted collaterally tu inipi'ach
tlie same, and to sliow any irr(>cularity therein,
or any deviation from the authority conveyed
by the said flfty-third section, or by tlie alio*e
recited act" (the act allowing and regulating
attHchments).
If it be objected that this act wsa paascd af-
ter the title is claimed to have vested, the case
of Watson et al. v. Mercer, B Teters's Bep. 88,
la an answer to such objectiou.
It is true that this clause in the Act of 1813
was afterwards repealed, with the whole act.
But it cannot but be obvious that the reason
why it was not re-enacted, was, that the reason
given for pasaing it no longer existed; tlrnt the
doubts in relation to the matter bad ceased.
In Humphries v. Wood, Wright's Ohio Kep.
BGS, the court say; "These proceedings" (in
attachment) "being ex-parle and in rem, tbe
4SS*] 'statute muat be strictly pursued, or no
right is acquired under it;" and the proceedingj
were declared to be void, not voiilable.
In M'Daniel v. ijapningttm, Hardin's Kent.
Rep. 94, tne court hold, that the remedy hy
Attachment being in derogation of the common
law, tha statute giving the remedy ought to be
«trictly pursued in all its provisions.
Ihes* are the reasons for our respectfully In-
sisting that tiie Circuit Conrt erred In glAg
judgment, on the point reserved, for the plain-
tiff. And unless there be something in th«
name or essence of a court which makes its u-
parte proceedings binding upon the righti ot
individuals, despite of all the provisions of s
statute vesting it with whatever power it hat
over the subject matter; unless, because it is
authorized to do one thing it may do all things;
unless, because it has power to do a particu-
lar thing in a particular mode, It may do Uie
same thing in any other mode, according to its
own pleasure; unless it csn secretly, by the
aid ot irresponsible agents, hold to their duty
neither by oath or obligation, dispose of the
property of citiivns of otiier States, according
to its uncontrolled will; we think we may
rightfully ask for the reversal of the judgment
of the court below.
Mr. Fox, with whom waa Mr. Chase, in their
printed argument, argued for tbe defendants In
error as follows:
Tbe objections urged below, and which we
anticipate will be urged In this court agaiust
the validity of the proceedings in the attach-
ment auit taken in the order in which they
arise, as follows: First, because no affidavit of
nonreaidence appears in the record; second, be-
cause there is no evidenoe of the pendency of
tne suit having been advertised three months;
third, that the record does not show that the
requisite defaults have been entered; fourth,
that the deed ought not to have been made to
Woodward & Foster, the sale having been made
to Stanley.
As to tlie first objection, we say the statuts
does not require that the atndavit should be
made a part of the record. .All that is required
by the law is the filing of the affidavit with the
clerk. Tlie alTidavit ought certainly to be filed,
hilt it is no more necesaary that such affidavit
should be recorded than that an affidavit to hold
tu bail, or the attorney's pnecipc ordering ■
writ in a cause should be recorded, or that
proof of such an affidavit having been made
should appear in the record. Indeed, in an
oplinary unit the writ forms no necessary part
of the record, unless required to be recorded
by express 'statute. Until within a 1'4«0
few years the writ is not to be found In tbe
records of judicial proceedings In Ohio.
But in the present cnse the record does ahow
that an alTidavit was tiled, for it is recited that
the plaintiff "has sufficiently testified to the
judges of our Court of Common Fleas that Seth
Cutter, who is not now residing in the State, is
indebted," etc. Here it is shown that an aill-
davit had been made, and we presume that thia
recital must be held sufficient at this late pe-
riod, even If the court should consider record
evidence necessary to prove that an afiJdMvlt
had been made. The next question arising
in tbe cause is whether it is essential thait ia
an attachmnt suit, where the artiole aeiied te
substituted for a personal service of procaaa,
the record must show that the proper advertiae-
ment of the pendency of the suit has been ttuule.
We auppose it not necessary to the validity
of tbe judgment that any such advertisement
should In fact he made, but at all events, w*
insist that no evidence ot the fact of advertiw-
nient having been made need appear in tte
We suppose in this as in all other procMdinRS
Tooum KT u. T. Jaokbom, kx DBt. The Baxk of tui Uhitcd States.
h mn, the Mizing of the property by virtue of
procen issued from a court hsving authoritv to
tBtne the writ, vesta in tlie tribun*! from which
tlu procesa iasued a complete jurisdictii
*v. 41.1 ^ — "perty aeized. It we »-
it toHowB, we luppo
, that irregularitiea i
la the Bubwquent proceedinga of the court, ca
only be corrected by the court* of the State,
We inaiat tliat the iasuing of the t
plMB of Hamilton County complete juriidiction
of the property seited;
Because, First, the statute declarea "that
Uie property ao attached HhaH be bound from
tin time of levying such att«chme»t." 5ec.
Second. Becaiiae the property from the time
of attachment, is to "remain in the cere and
nfe keeping of the office, to abide the judgment
•t the court." Sec. 3d.
Third. Because at the return term of the
writ, the court are authorised to refer the mat-
tora of account, etc., to the auditora to be ad-
justed. Sec. 8th.
Fourth. Because the court are autlinrized to
direct m. sate of the pcraonal property attached
ftt any time after it is seized, if it be of a per-
bbable nature. Seo. 11th.
Fifth. Because the death of the defendant
4I1*] is not to abate the 'suit, but the right
of the plaintiff is referred to the time of suing
the attachment.
These acts could not he authorised to be
done, unless upon the supposition that the
atmrt by virtue of the seizure had complete
Jurisdiction of the suit and of the parties there-
to, BO far as the disposition of the property st-
taebed was concerned. This ia also agreeable
to the analogous proceedings in the courts of
admiralty and exchequer.
In admimlty causes, it is a universal princi-
ple that the seizure of property by an oflicer
Mting under authority vests the right in the
•overeign, and authorizes his court* to proceed
and ini^uira whether, under the laws, the prop-
arty seized has been forfeited, and to adjudge
to whom it belongs and how it shall be disposed
of; and alt sentences, judgmenta and decrees,
affecting the property so seized, are conclusive
vpoa all the world as to the right and title
to tlia thing seized from the time of the seizure.
4 Craneh, 27S; 1 Paine's C. C. Re^. 626. On
the seimre of the property, the jurisdiutiim of
the admiralty courts attaches, and the property
li aubjeet to the decision in the cause. 4
Craneh, 296; I Phil. Ev. 273; 12 Berg. & Rawle,
289; I Paine's Bep. 826; a Binney, 220; S
Craneh, 1B4.
If, then, the court had jurlsdicticn of the
CMue, the omitting to publish the pendency of
tbe writ did not devest the court of ita jurisdic-
tlan. The court undoubtedly might have re-
fnasd to have given judgment, and indeed
O&^t not to have given jui^ment until the ad-
wrHsemeot had been made, and we must sup-
poae the court did require the evidence of such
publication; aawe are not topresume tbe judges
MKltet«d, or erred in the discharge of tbeir
dotlaa. But auppose tbe court did not require
aaj proof of such oublieation having oeen
vada; mppoae tbat they were wtisfisd of its
f baa.
having been made from thefr o
knowledge, such as their having read the no-
tice in the newspaper, and admitting the court
ought to have required other evidence of the
fact: all that can be said in relation to the
matter is that the court erred, but tbe error
of the court cannot atTect the validity of the
judgment. The purchaser of property Is not
responsible for the errors of the court or of the
parties. Nor can the errors of tbe Court ol
Common Pleas be inquired into by this ooart.
This court, ao far as the judgment of the
Court of Common Pleas of Hamilton County la
concerned, is a foreign court, and as such can-
not notice the irregularities of the Hamilton
County courts. The regularity or irregularity
of the proceedings of our own courts ia an
internal regulation 'of the State of [*4*S
Ohio, and aa such, muat be expounded by the
courts of the State. Foreign courts cannot
notice tbe errors of State courts. 4 Craneh,
294; 1 Paine's Rep. 621.
"Where judicial proceedings are merely ir-
regular, the courts, of the country pronouncing
the sfntPnce are tbe exclusive judges of that
irregulnrity, and their decision binda tile
world." 4 Craneh 878,
The case of Keinpe's Lessee v. Kennedy, S
Craneh, 173, we conceive conclusive on this
subject. In that ease the court held that
whetlier the inquest which was substituted (or
a verdict "did or did not show that an offense
had been committed, was a question which
the court in New Jerney was competent to de-
cide. The judgment it gave is erroneous, but
it is a judgment, and until reversed cannot
be disregarded," The ssmp principle is recog-
nized in II Ma^i, Rep. 229.
So in 12 Serg, & liaule, i89 it was held that
money being attached in Louisiana, "the judg-
ments of the courts there touching th" (li«noM-
tion of that money wa* conclusive. The f'-ng
attarhed being in Louisiana was aubjeet tii he
juritdlction of her courts. By what law it was
to be governed, "it was for the jiiuKf* of Vwiar
courts to deciiled; and we pre.ume they W<u'd
decide by their own laws."
The third objection i^ thst th" sfnint" re-
quires the defendant should be callel for thraa
successive terms and detaulteu, aim iiiLrii-n >.,
such default entered of record, and that the
record offered in evidence does not show that
these defaults were entered. This, like the other
objections, is one which could only be taken ad-
vantage of by writ of error, which could only
be prosecuted in the State Court. It does not
affect the validity of the judgment. There ia
no doubt the defendant ought to have been
called three times, at three successive t«nns,
and that an entry of such calling ought to have
been made. But after admitting all this, the
judpnent still remains good until reversed. The
plaintiffs in error, in order to sustain their ob-
jection, by their course of argument destroy all
the well settled distinctions t»etween void and
erroneous judgments. The leaBt irregularity,
the smsllcBt error in tbe judgment of the
courts, if sufficient to reverse the iud'n""nt in
a Bupsrior court, is also suRicient, accordil^ to
this view of tbe case, to leiuier it :.uil und
void. If this judgment was a valid judgment
until reversed or set aside by a superior tri-
bunal in Ohio, it ia binding and valid every-
4 as
Svraxiu Cduit or thk VanMo States.
4CS*] where. And being ft 'proceeding in ran,
not (igainit the person. tDP Ki'.in^ of the piop-
erty being tantamount to peraoiial aervice in
R personaT action, tlie court liuil Jiirii'tliciion of
the matler, and tliat ii all the law require!
to make the judgment valid.
The last objection, ai we understand It, is
that the deed i* not made to the person who was
ntumed as the purehser at the auditor's sale.
It is true that the auditors returned that the
land in question "was sold to William Stanley,
for no dollara;" but this return is not conclu-
sive on the purchase; the deed made to Wood-
ward t Foster, is aa strong evidence of the sa'e
having been made to thode persons, as the re-
turn to the court is of its liaving been made to
Stanley. But we contend it is immaterial
whether the sale was made to Stanley, or to
Woodward A Foster. If the aale was to Stan-
ley, he was equitably entitled to a deed far
the property sold, and he waa equitably
entitled to direct the deed to be made to
another. The statute does not require the au-
ditors to make a deed to the purchaser. By
the eleventh eection they are authorized to aell
and convey the lands. But to whom they are
to make the deed is left to be decided by the
principles of law and the agreement of the par-
ties. The auditors, perhaps, could not be oom-
pelled to convey to an assignee of the purchaser,
unless by the Court of Chancery; but it the
purchaser requested the auditors to make the
deed to Woodward & Foster, and the auditors
did so, we do not perceive that the rights of
Cutter were in any way affected by the arrange-
ment. The equitable title to the lot was vested
in Stanley by the purchase, and the right would
have been enforced specifically by a court of
equity, either on the appticalioo of Stanley (if
he had parted with his interest), or of his a«-
■ignee. The deed for Foster k Woodward shows
that Stanley was saLisried with the doings of
the auditors, or he would not have receivpri
a deed from Woodward k Foster. The lattiT
made to Stanley a uarranty deed, and boih
deeds bear date on the same day; it is cv'dent,
therefore, that Stanlry. Woodward, and Foster,
the only persons interented in this matter, w tc
perfectly agreed as to the manner of makig
the deeds; and as no law has been violated, v/i
suppose the deeds are valid.
To these views of the matters in controversy,
Mr. Chase subjoined an argument, in which he
contended :
404*] 'lit. It appears from the record and
the law that the proceedings in attachm'nt
were had before a court of competent juriadic-
tion.
2d. That In the exercise of this juri slid ion,
a judgment was rendered and an order made in
virtue of which the land in controversy was
properly sold.
3d. That the judgment and order so made,
having never been reversed, remain valid and
•n full force, and cannot now be collateially
questioned.
He cited Kerape's Lessee t. Kmriedy et al. 6
Cranoh, 173; 2 Petera's Cond. Bep. 223; 3
Peters'* Cond. Kep 312; Ohio Forms and
Practice, 128, 358; Hartsiiom v. WiUon, 2
Ohio Rep. Efc; 8 Ohio Kep. 208; 2 Cha^e'.
SUtutes, 712; S Ohio Rep. fiOO; I Clia^e'a
iiUtutes, 183, 184, 063, 79d, 072; 6 Ohio Bep.
4»e
BOO, per Hitchcock, Cbiel Judge; Alkn'a Lm-
see V. Parish, 3 Ohio Rep. 190: Ludlow's Hein
V. Wade, B Ohio Rep. 501 ; Ludlow's Heirs v.
M'Bride, 3 Ohio Rep. 2S7; Ludlow'i Heirs t.
Johnston, 3 Ohio Rep. G61; Dabney r. Man-
ning, 3 Ohio Rep. 32fi; Colwell v. Bank of
Steubenville, 2 Ohio Rep. 22S; Cowden v. Har-
ford, 4 Ohio Rep. 133; Taylor t. M'Donald, 4
Ohio Rep. 1B4; Humphrey v. Wood, Wrigbfa
Ohio Rep. S80.
Mr. Sergeant, alio for the defendants In n-
ror, argued in writing;
Firs^ that the sale which is questioned ia
this case was made in the year 1808, about
twenty-eight years ago. It was made under ■
Judgment of a court of competent jurisdiction
ami in conformity to that Judgment. The deed
was duly acknowledged, and was recorded In
June, 180S. The judgment atanda in full
force, and unreversed.
The objections made after this great length
of time are, that certain things requirpd by lav
in the course of the proceedings, oo not appear
to have been closed. It is not proved that they
were left undone. The question then la,
whether a party, after more than a qiiarler of
a century, is bound, affirmatively and positive-
ly, to prove, in support of his title, that not
only the court, but every officer and every per-
son employed by the court, did what the law
required to be done, or else to lose his land-
In such a case, presumption stands In tha
place of proof. The court will presume eveiy-
lliing to have been rightly and regularly doM
Tliis is due to the tribunal. Its conclusion*
are presumptive evidence that the right steps
have been taken. This presumption arises im-
mediately; 'it is strengthened by time; (•4«*
and after so many years, is indispensable to
justice. How is it possible now to prove aA-
davits or advertisements t
2. The want of an alBdavit is supposed to go
to the jurisdiction of the court. If this were
so, the plain answer would be that it does not
appear that there was no affidavit. The pre-
sumption is, tliat there was an affidavit, and
after so great a length of time it ia irresistible
kTus
But this is not the law. By the first aeetioii
of the Act of Ohio it is provided that if ths
clerk issue a writ without an affidavit, "soeh
writ shall be quashed on motion, at the proper
cost of the clerk issuing the same." If then
be no motion, then the writ cannot be quashed;
and it the writ be not quashed, it remains in
force, and so supports the Jurisdiction. The
writ cannot be invalidated in any other -waj
than this. It is a good writ if it be not ao in-
validated. In this case, therefore, the wrtt is
a good writ, and unimpeachable now, in this
collateral action, even if it were certain ther«
was no affidavit,
3. There are some remarks made in the ar-
gument as to the time of sale not very exact:
nor, seemingly, much relied upon. It is onlj
necessary, in order to dispose of these remarlc^
that the prohibition in the act {sec. 11) is lim-
ited specifically to the sale. The order of sale
■ney be before the expiration of the year. Tits
tct seems to contemplate that it shall be at the
time of giving judgment, Hie advertitemwit
may be within the year, sBd if It kananiws •
aale after the year, it Is good.
Peicn !•.
Voouuaa ST al. t. Jackhon, ex. dbu. The Bank or the Uriuxi Statbs.
!Toir, hrre, H itoea nnt apifar that tha sate
.VIS williin the y»r. That would be enough.
But the evidence is BufTideiit to shovf tlint it
wu Afier the year. The return of sale bears
jite th> tflth of April, being eleven days after
the end of the year. The reasonable presump-
tion, according to the uhubI course of such
busineai ia, that thia waa the date of the lala,
or as soon after as possible.
4. Upon the more general and very impor-
tant question, whether theae proceedings are
examinable In a collateral suit, T wish to add
A reference to the case of T^mpson v. Tolmie,
2 Peters, 157. The princif^ are there very
fnlly and clearly stated, and that judgment is
deemed to be decisive of the present case.
It will be perceived that the counsel on both
aides refer to cases in Massachusetts at main-
taining contradictory doctrines. They do seem
to be opposed to each other. But In Heath t.
Wetis, 6 Pick. 140, the former cases are re-
viewed and reconciled. Where the proceedings
4aa*I 'were held void, it was because there
was wanting what was necessary to vest
jnHsdiction. The indispensable prerequisite did
Etat eiist. ,
Perhaps, too, the courts of Massachusetts
were more liberal, because there was no oppor-
tnoity of review by writ of error. It ia not
neceaearj to examine what weight ought tn
initlce to be allowed to this consideration.
attachment v
1 Ohio
■ examinable
And this leads to a remark upon the cases
cited by the counsel of the plaintiff in error.
They are all, without exception (that fn
Wright's Ohio Bep. 666, included), writs of er-
ror. No instance of impeaching the proceed-
:, and it Is
CollaterBl suits are almost without limitation.
Still more. Reversal of a judgment on error
does not affect the title of a purchaser. The
snccessful party does not go for the land, but
for restitution of what was recovered from him
by his adversary. The collateral suit seeks to
rerover the land, leaving the money tn the
hands of the adverse party, at the expense of
the purchaser, who thus becomet the victim.
The creditor gets bis money, which is not un-
just. The debtor is released without payment,
and an innocent purchaser, invited by judicial
proeeedings, is made to pay. Duly encoura^,
such a principle would soon lead to piratical
adventures under color of law.
Ur. Caswell and Mr. Cheater, fn reply, to the
argument of Mr. Fox and Mr. Chase, denied that
the proceeding by a foreign attachment, under
the laws of Ohio, waa a proceeding in rem.
They argued that a foreign attachment is a
proceeding against a debtor for the rmovery
of a debt due to the plaintiff in attachment.
The debt does not grow out of the property at-
tached; there is no offense committed or duty
neglected in regard to it, to form the basis of
the proceeding. The particular property seized
is not in defanit; no offense has been commit-
ted by means of it or in relation to it; there is
no debt constituting a Uen upon lt| or. In other
• li. «d.
words, it ii n'>t itself a debtor. No question Is
agitated or put in issue in relation to the prop-
er y. The isHue to be tried, if an issue be maae
up, is whether the person •defendant is ['l*?
debtor, and the amount of the debt; and
whether he is nonresident so >a to be within
the provisions of the statute.
There is nothing in this proceeding In com-
mon with proceedings in rem.
In answer to the position that if the Com-
mon Pleas of Hamilton County had jurisdiction
of the attachment suit, this court cannot look
at their proceedings, it was urged that the
power delegated by a statute can be exercised
in no other mode than that pointed out by the
statute, aod oo presumption in favor of pro-
ceedings in a foreign attachment will be sus-
tained, where the purchaser under them was
never in possession, and where suit ia brought
after the lapse of twenty years.
They denied the arguments on the cases cited
by the counsel for the defendants in error, and
also th« construction of the statute of Ken-
tucky relative to sales made by administrators.
In conclusion, they stated:
We trust we have satiafai^torily showD that
the grounds assumed by the defendants in er-
ror are not tenable, and that they are not sus-
tained by the autliorities cited in support of
their positions.
Es|>ecially wg think it Is manifest both from
authority and upon principle, that a general
jurisdiction of a class of cases, coming under
one general head, does not necrsaariiy give or
infer a juri;t<liction over every particular case,
or an unlimited power in relation to each case.
See Llank of Hamilton v. Dudlev's Lesaee, 2
Peters, 492, particularly pages 523, 524, That
a power, even in a court, to do an act in a par-
ticular niode, does not give the power to do the
act in any other mode. That when there ia a
power or jurisdiction, upon the .condition of
something ticing first done, the record rouat
show that the thing required was done. That
when, by the legislative act giving power over
the subject matter, the court la prohibited from
rendering judgment until certam prerequisites
have been complied with, the judgment ia not
merely voidable, but a nullity, unless these
trformed; most certainly is this the
case. If the statute expressly prohibit any
final action or judgment, until after these Hlall
have been placed on the record. We think we
have shown that a foreign attachment Is not
such a proceeding in rem as comes within the
principles laid down by admiralty courts iri re-
lation to parties and notice in such protced-
ings, that in all ex-parte proceedings, B'bete
there has been no actual notice *to the !'4tS
person interested, he may avail himself eol-
laterally of every advantage which he would
have on a writ of error, for error in law; that
where a statute requires notice or service of
any kind, upon one who Is to Im thereby made
a party to a suit, he ia not l>ound, nor hU
property devested by any proceedings or judg-
ment, unless amh notice or service be shown,
or may clearly be inferred from tha reoord;
that a jurisdiction or power ii not acquired
over the rights of a person, who Is without tha
jurisdiction of the conrt and of the State,
S2 «»T
SupmiB CouiiT uF TUB Umted States.
UU
merely bj the laeulng of a writ against his
property, without a complianc^e with any of
thoae eisential requiMtea on uhich, by the
statute, the riglit and power of the court Orst
to entertain the caiiBe and afterwards to pro-
ceed in it to judgment, depends; and Anally,
th*t in all ex-psrte proceedings, tlie plaintiff
taliM judgment at his peril, and purchasers
must at their peril, look to the whole record of
tha cause.
And if these, or any of these propositiont be
sound, then we have certainly brought our
caae within it, and are entitled to a reversal of
the judgment below, for we have shown:
1. That by the statute the plaintiff must
make and file an afi!idavit before any writ could
Issue, and no such aflidarit was made or Bled.
(The defendant's counsel err when thay say
such an affidavit makes no part of the record.)
2. That this affidavit must state that the de-
fendant is not resident within the State, as
plfeintiff believes. No such affidavit was made
or alluded to, or an^ intimation given that
such a thing was testified to.
8. That to give notice to the defendant, an
advertisement, the substance of which is pre-
scribed in the statute, must have been pub-
lished in some paper of the State, for three
months before the court was vested with any
power to give judgment, and no auch notice is
mentioned In the record, and there is nothing
Id or out of the record from which It can be in-
4. That no judgment eouTd be rendered
against the defendant until after three callings
at each of three terms of the court, and three
defaults entered on the record by the clerk, and
that the power to give a valid judgment de-
pended on this as a condition precedent. The
callings and the defaults do not appear as re-
5. That no power to sell the land In question,
and of course no power to order the sale of the
land, existed till after the lapse of twelve
months from the return of the attachment; and
18V*] the order 'was issued long before the
lapse of tlie twelve months, and there Is nu
evidence that the auditors waited for the ex-
piration of the time, or when, or where, or
how tbey sold.
0. That the auditors were required to give at
least fifteen da^s' notice, by advertisement, of
the sale; and it is not shown or pretended,
either by the deed or otherwise, that such an
advertisement was made, and,
7. That the return shows a sale to one man,
and a conveyance made to others not in any
mode connected with the record.
From the time of the sale to the present
day, the defendant in attachment and those
claiming under bim, have been in the undis- .
tnrbed possession of the land, now at this lata
day brought into dispute; and viewing the de-
cisions of the State courts, and the principles
of law as we do, we mnst cheerfully unite in
the sentiment and opinion ro happily expressed
by the defendant's counsel, "that the judgment
of this court will accord with the course of de-
cisions in the State courts, and will tend not to
impair, but to establish confidence; not to ex-
dte, but to repress the spirit of speculation in
'"^isation; not to dettioj, but to fortlfj the
■itj «f tttlM."
Mr. Justice Baldwin delivered the opinioD af
the court:
This case oomea up by a writ of error from
the Circuit Court for the Dintrlet of Ohio, t«
reverse a judgment in an action of ejectment,
obtained by the defendants a^inst the plaJn-
tilTi in error. The sole question in the conrt
below was the validity of a sale of the prem-
ises in controversy, under a judgment of the
Court of Common Pleas of Hamilton County,
Ohio, in a case of foreign attachment, rendered
against Seth Cutter in 1S08 at the suit of Sam-
uel Foster. By t)^ record in that case, it ap-
pears that the v^ was returnable to April
Term, 1807. It rftited that the plaintifT had
sufficiently testified to the judges that the de-
fendant, who was not residing in the State, la
indebted to the plaintiff, etc The sheriff re-
turned the writ, with an inventory of the
property attached by_ him, in which was in-
cluded the property in question, with an ap-
praisement thereof. At the April Term tha
defendant was three times called and made de-
fault, whereupon the court appotnted auditor*
to report at August Term following; the order
was then continued till December Term, when
the auditor* made a report, findllig a debt of
1207 due the plaintiff. The court then ren-
dered judgment on the report, and ordered the
property attached to be sold agreeably to law.
An order of sale *was accordingly issued ['410
to the auditors, who, at the April Term. I80S,
to wit, on the I6th of April, reported that the;
had sold the premises to William Stanley far
S170; on an inspection of which the court
granted judgment of confirmation thereof. On
the 2Sth of May. 180S, the auditors made >
deed to Samuel Foster and William Woodward,
who on the same day conveyed the same to
William Stanley, under whom the lessors of
the plaintiff claimed by sundry mesne convey-
The consideration of the deed from the audit-
on to Foster &, Woodward was $170, the same
as from them fo Stanley; but they gave ia
their deed a covenant of seisin, of power to
■ell, end general warranty. The defendants
were in possession, claiming title under Seth
Cutter, the defendant in the attachment, aa
whose property the land was sold. The case
has been submitted on printed arguments,
which present a full and able view and discus-
sion of the points arising in the cause.
On comparing the record of the proceedings
on the attachment with the provi«ii>ns of tha
Act of ISOE {Chase's Ohio Laws, 462, etc.), the
acts of the court in all the course of the («usa
appear to be in conformity therewith, exc<>pt
in the following particulars, on which the ob-
jections to the validity of thesale are founded:
1. By the first section it provides that an
affidavit shall be made and filed with the clerk
before the writ issues, and If this is not dona
the writ shall be quashed, on motion; no such
afTidavit is found in the record.
2. The fifteenth section directs three montha*
notice to be given by publication In a nevra-
paper of the issuing of the attachment, befora
judgment shall be entered; the eleventh aee-
tion also prescribes that fifteen days' notico of
sale shall b« given by the auditors; neither of
which appears by the record to have been done.
I S. BT the proviso to tha eighth section, tha
roMra 1*,
IHM VooBHns KT Ai. V. Jackbok, kx deu. The Bakk or tue Uni
D Statbs.
iTO
defendnnl miiit be tliree tlmM called, ftt each
of the thna terms preceding judgment, and
inak* default, which defanlta ahall b« record-
ed b7 the clerk; no entrj la made of luch de-
fault at the December Term, 1807.
4. B^ the eleventh lection, the auditon are
prohibited from lellinK till the expiration of
twelve monthi from the return of the writ;
whereaa the order lasued before, and it does
not appear when the sale waa made.
6. The return of the sale by the auditors
4T1*] ehowa a sale to one 'person and a deed
to others, not in any mode connected with the
Ther« ta no provlaion in the law that it the
sevenU acts therein directed to be done or
omitted, the sale or anj other proceedings
under the attachment shall be deemed void;
but bv the thirteenth section it is declared that
everj sale and conveyance, made by the said
auditors, or any two of them, by virtue of the
authority herein granted, aball be aa binding
aud efTectuai, as if the same had been made by
the laid defendant, prior to the sarvice of the
taid attachment.
It ia contended by the counsel for the plain-
tiffs In error, that all the rcoutsitions of the law
are conditions precedent; which must not only
be performed before the power of the court to
order a aate, or the auditors to execute it, can
sriae, bat that such performance must appear
OS the record.
The first part of this proposition ia the true
■caning of the law of Ohio; the various acta
required to be done previous to a oale are pre-
tmbed by a proviso, which in deeds and latva
li a limitation or exception to a grant made or
authority conferred; the effect of which ia to
declar« that the one shall not operate, or the
other be exercised, unless in the case provided.
By the eleventh Motion, the audilors are di-
rected, by virtue of an order of the oourt, to
■ell and convey the lands attached, provided
they give notice; notice, then, is the condition,
OD the performance of which their duty and
power depend, and the act must be done to
make the execution of the power consistent
with the law.
Bat the provisions of the law do not prC'
aeribe what shall he deemed evidence that such
acta have been done, or direct that their per-
fonnance shall appear on the record. The thir-
teenth section, which gives to the conveyance
of the auditors the same effect as a deed from
the defendant in the attachment, contains no
other limitation than that it shall be "in virtue
of the authority herein granted."
This leaves the question open to the applica-
titm of those general principles of law by which
we do not think It necessary to examine the
record in the attachment, for evidenoe that the
acts alleged to have been omitted appear there-
in to have been done. Assuming the contrary
b« the ease, the merits of the present contro-
versy are narrowed to the single question,
whether tbia omission invalidatea the sate. The
411*] several courts of common 'pleas of
Ohio, at the tima of these proceedings, were
conrta at general dvll jurisdiction; to which
was added, by the Act of 180G, power to issue
wrtta of attachmenta, and otdar a nla of tba
»I..«d.
certain conditiona; no
. be made to their juri*-
aiciion over me case, the cause of action, or
the property attached. The process which they
adopted was the same as preacritied by the
law; thcv ordered a aate which was executed,
and on the return thereof gave it their confir-
mation. This was the judgment of a court of
competent jurisdiction on all the acts preced-
ing the sale, affirming their validity in the
same manner as their judgment had afBrmed
the existence of a debt. There is no prindpta
of law better settled then that every act of a
court of competent jurisdiction sbaJl be pre-
aumed to have been rightly done, till the con-
trary appears; this rule applies as well to
every judgment or decree rendered in tbo
various stages of their proceedings, from the
initiation to their completion, us to their ad-
judication that the plaintiff has a right of
action. ' Every matter adjudicated becomes a
part of their record, which thenceforth proves
itself, without referring to the evidence on
which it has been adjudged.
In this euae the court issued an order of sale
agreeably to law, which having been returned
by the auditors, and "being inspected, the court
grant judgment of confirmation thereon." It
la therefore a direct adjudication, that the
order of sale was executed according to law.
They had undoubted authority to render auch
a judgment, and there ia nothing on the record
to show that it woa not rightfully excrciaed.
If the defendants' objections can be sustained,
it will be on the ground that this judgment Is
false; and that tM order of sale was not exe-
uuled according to law, because the evidence
of its execution ia not of record. The same
reason would equally apply to the nonresidence
of the defendant within the State, the exist-
ence of a debt due the plaintitT, or any other
creditor, which is the basis on which the whole
proii.'Fdings rest. The auditors are equally
silent on the evidence, upon which they re-
ported that debts were due by the defendant,
ns on the evidence of notice and due publica-
tion; but no one could pretend that the judg-
ment that the debts reported were due, shall
t>e presumed to be false. Though the able and
ingenious argument of the defendants has not
bien directed at this part of the judgment of
the Court of Commou Pleas, the grounds of
objection are broad enough to embrace it: for
in resting their case on the only position which
the record leaves them, they necesaariiy afTinn
the 'general proposition that a sale by (*4TS
order of a court of competent jurisdiction may
be declared a nullity in a collateral action, if
their record dofa not show affirmatively tho
evidence of a compliHnce with the terms pre-
acritied by law in making such sale. We can
not hesitate in giving a distinct and unqualified
negative to this proposition, tioth on principle
and authority too well and long settled to be
questioned.
That some sanctity should be given to judi-
cial proceedings, some time limited beyond
which they should not be questioned, some pro-
tection afforded to those who purchased at aales
by judicial process, and some definite rules be
established, by which property thus acquired
may become transmissible, with security to the
pooaeascH^ cannot be denied. Ia this country,
4»
SOFBEllB COUBI OF TUB UHTTBD StAIES.
Mutleularly, where property,
few years wu but of little v
which within
irilder-
B and fiourUhiiig
cities; ita enjoyment should t>e at least m se-
cure as in that country where its value is less
progressive.
It is among the elementary principles of the
common law that whoever would complain of
the proceedings of a court must do it in such
time as not to injure his adversary by unneces-
■ary delay in the assertion of his right. If he
objects to the mode in which he is brought into
court, he must do ft before he submits to the
ErocesB adopted. If the proceedings against
im arc not conducted according to the rules
of law and the court, he must move to set them
aside for irregularity; or, if there is any defect
Id the form or manner in which he is sued, be
may assign those defects specially, aJid the
oourt will not hold him answerable till such
defects are remedied. But if he pleads to the
action generally, all irregularity is waived, and
the court can decide only on the rights of the
parties to the subject matter of controversy;
their judgment is conclusive, unless it appears
on the record that the plaintiff has no title to
the thing demanded, or that in rendering judg-
tneat they have erred in law; all defects in set-
ting out a title, or in the evidence to prove it,
are cured, as well as all irregularities which
■nay hare preceded the judgment.
So long as this judgment remains in force, it
is in itself evidence of the right of the pli
tifl to the thing adjudged, and gives him a right
to process to execute the judgment: the erron
ol the court, however apparent, can be exam
tned only by an apppllate power; and by thi
laws of every country a time is fixed for such
examination, whether in rendering judgment,
4H*] issuing execution, or enforcing it 'by
Kocess of sale or imiirisonment. No rule can
more reasonable than that the person who
complains of ?n injury done him, snould avail
himself of his legal rights in a reasonable time,
or that that time should be limited by law.
This has wisely been done by acts of limita-
tion on writs of error snd appeals; if that
time elapses, common justice requires that
what a defendant cannot do directly in the
mode pointed out by law, he shall not be per-
mitted to do collaterally by evasion.
A Judgment or execution Irreversible by a
■uperior court, cannot be declared a nullity by
any authority of law, if it has been rendered
by a court of competent jurisdiction of the
parties the subject matter, with authority to
use the process it has issued: it must remain
the only test of the respective rights of the
Krties to it. If the validity of a sale under
process can be questioned for any ir-
regularity preceding tbe judgment, the court
which assumes such power places itself in the
position of that which rendered it, and deprives
it of all power of regulating Its own practice
or modes of proceeding in the progress of a
cause to judgment. If after its rendition it ia
declared void for any matter which can be as-
signed (or error only on a writ of error or ap-
peal, then such court not only usurps the juris-
diction of an appellate court, but collaterally
auilifles what such court la prohibited by ex-
prMB statute law from even reversing.
If the principle once prevail! that any pro-
ceeding of a court of competent jnriidlethM
can be declared to be a nullity h^ any court,
after a writ of error or appeal is barred by
limitation, every county court, or justice of the
peace in the Union, may exercise the sama
right, from which our own judgments or proc-
ess would not be exempted. The only ditTer-
ence in this respect between this snd any othei
court is that no court can revise our proceed-
ings, but that difference disappeara, after thn
time prescribed for a writ of error or appeal to
revise those of an inferior court of the United
States or of any State; they stand on the aame
footing in law. The errors of the court do not
Impair their validity: binding tilt reversed, any
objection to their full effect must gq to the
authority under which they have been con-
ducted. If not warranted by the Constitution
or law of the land, our most solemn proceed-
ings can confer no right whic^h is denied to
any judicial act under color of law, which can
properly be deemed to have been done coram
non judice; that is, by persons assuming the
judicial function In the given case without law-
ful authority.
The line which separates error in judgment
from the usurpation 'of power is very ['IIS
definite, and is precisely that which denotes
the cases where a judgment or decree is re-
versible only by on appellate court, or ma^
be declared a nullity collaterally, when it
is offered in evidence in an action concerning
the matter adjudicated, or purporting to have
been so. In the one case, it is a record import-
ing absolute verily; in the other, mere wasta
paper: there can be no middle character as-
signed to judicial proceedings, which are ir-
reversible lor error. Such is their effect be-
tween the parties to the suit, and such are tbe
immunities which the taw affords to a plaintiff
who has obtained an erroneous judgment or
execution. It would be a well-merited reproach
to our jurisprudence if an innocent purchaser,
no party to the suit, who had paid his money
on the faith of an order of a court, should not
have the aame protection under an erroneous
proceeding as the party who derived the benefit
accruing from it. A purchaser under judiciml
process pays the plaintiff his demand on the
property sold: to the extent of the purchaae
money, he discharges the defendant from his
ceding tlie sale, which precludes the defendant
from controverting the absolute right of the
plaintiff to the full benefit of his judgment;
and it shall not be permitted that the pur-
chaser shall be answerable for defects in the
record, from the consequence of which the
plaintiff ia absolved. Such flagrant injustice ia
imputable neither to the common or statuto
law of the land. If a judgment is reversed for
error, it is a settled principle of the commoa
law, coeval with its existence, that the de-
fendant shall have restitution only of tbe
money; the purchaser shall hold tbe property
sold; and there are few, if any States in the
Union who have not consecrated this principle
by statute.
1838 TooiHm EI AE, T. Jaokboh, ki dem. Tb> Bank of tbk Umitbi SunK.
476
bdn BDd pHric*, to take kdrftntage of tb«
HcuHty into which honeit purcliasara have
been lulled; if any judicial proceeding which
could stand the test of a writ of error, or ap-
peal, if talcen in time, or had become irrs'
Tcrsible directly, could be avoided collaterally.
Acta of limitation become useless if a defeud-
ant is allowed to evade them by avoiding judg-
ments, or executions, on the suggestion of de-
fects or omissions in the record, which can be
reviewed only by an appellate court; a direct
rmium is held out for delaying the resort
the mode pointed out by law for correcting
4IB*] the errors of judicial 'proceedings. His
iebt is paid by tha purchaser; the property
pnrchaB^ i> restored to the defendant without
any obligation to refund; and that which was,
when sold, of little value, and bought at its
full price paid to the defendant's use, becomes
his nghtful estate when the remote out-lot has
become a mart for commerce, and covered with
valuable improvements. Hajl he brought bis
writ of error in time, and reversed the judg-
ment or execution on which it was sold, justice
would have been done him by a restitution of
the purchase money, and to the purchaser, by
leaving him iu the quiet enjoyment of the
property purchased. Such are the consequences
of the doctrines contended for by the defend-
ants' counsel In their objections to the proceed-
ings on the attachment; none of them affect
the jurisdiction of the court, or its authority
to order or conGrm the sale; the acts omitted
to be noticed on the record are not judicial, but
tDinisterial, to be performed by the cleric, or
auditors. It was a good ground for a motion
to quash, or su.spend the proceedings for irregu-
larity, if they bad not been done in fact: and
as the judgment was by default, perhaps the
omission to state them on the record may hava
been good cauei' for reversal on a writ of error.
Bnt OQ an Inspection of these proceedings col-
laterally, we can Judicially see only what the
eourt has done; not whether they have pro-
ceeded inverso ordine, erroneously, according to
the proof before them, or what they have omit-
ted, or ought to have done. They have ad-
judged that the order of sale was executed
agreeably to law — nothing appears on the ree-
ori to impugn their judgment; it must, there-
fore, be taken to be true in fact and valid in
law. Their order of sale was a lawful author-
ity to the auditors to sell; it was a full juati-
fl»tion to them in obeying it; it was executed
in virtue of the authority granted by the law
to the court, who bave not exceeded their juris-
diction : and the deed of the auditors passed
the title to the premises in controversy to the
purchaser.
It has not been thought necessary to review
the various cases cited in the argument; tha
principles which must govern thia and all other
aales by judicial process, are general ones
adopted for the security of titles, the repose of
poeaession, and the enjoyment of property by
Innocent purchasers, who are the favorites of
the law la every court and by every code. Nor
•hall we refer to the decisions of State courts,
or the adjudged cases in the books of the com-
non law; our own repeated and uniform deci-
sion* cover the whole case, ia its most expand-
ed view, and the highest considerations call
411'] upon UB so to reaffirm 'them, that all
questions audi as bava ansen in tUi «MiBa mar
■ L.ed.
be put at rest iu thia and the rfrcult courts. In
Btaine v. The Charles Carter, a ship had hotn
sold under executions issued within ten days
after judgment, contrary to the express pro-
hibition of the twenty-third section of the Ju-
diciary Act; but no writ of error was taken
out. The court declared that if the executions
we.-o irregular, "the court from which they is-
sued oueht to have been moved to set them
aside. They were not void, because the mar-
shal could have justified under them; and if
voidable, the proper means of destroying their
efficacy had not been pursued." The decree of
the Circuit Court was aftirmcd, and the money
ordered to be paid over to the execution credit-
or. 4 Cranch, 328, 333.
In Wheaton v. Sexton, the case turned on the
validity of the sale of real estate by the mar-
shal of this district, by virtue of an execution,
in which the language of this court is, "tha
purchaser depends on the judgment, the levy
and the deed. All other questions are between
the parties to the judgment, and the marshal.
Whether the marshal sells before or after the
return; whether he makes a correct return or
any return at all to the writ, is immaterial to
the purchaser; provided the writ was duly is-
sued, and the levy made before the return." 4
Wheat, 506.
In Tolmie v. Thompson, there had been a sale
under an order of the Orphan's Court of
this district, which had t>een confirmed by
them ; and a deed made to the purchaser, the
validity of which was questioned, on objec-
tions similar to those now under consideration.
The court say; "Those proceedings were
brought before the court collaterally, and are
by no means subject to all the exccptiona which
might be taken on a direct appeal. They may
well be considered judicial proceedings: they
were commenced In a court of justice; carried
on under tha supervising power of the court,
and to receive its final ratification. The gener-
al and well-settled rule of law in such cases is.
that when the proceedings are collaterally
drawn in question, and it appears on the face
of them that the subject matter was within the
jurisdiction of the court, they are voidable
only. The errors and irregularities, if any ex-
ist, are to be corrected by some direct proceed-
ing, either before the same court to set them
aside, or in an appellate court. If there is a
total want of jurisdiction, the proceedings are
void and a mere nullity, and confer no right,
and afford no justification, snd may be reject-
ed when collaterally drawn in question."
The purchaser is not bound to look beyond
the decree when executed 'by a con- ['418
veyance, if the facts necessary to give jurisdic-
tion appear on the face of the proceedings, nor
to look further back than the order of the
eourt. "If the jurisdiction was Improvidently
exercised, or in a manner not warranted by the
evidence before it, it is not to be corrected at
thority emanating from a competent jurisdic-
tion." 2 Peters, IB3, 108. "When a court has
jurisdiction, it baa a right to decide every
question that arises In the cause; and whether
the decision be correct or not, its judgment
until reversed Is regarded as binding in every
other court." Elliott v. Pieraol, I Peters, S40;
% Peters, IW.
SVPSEin Onnr or ran User
I Stati
I«M
In Taylor t. Thompioii, this court afflrmed
a prtncfple of the common law — that the sale of
11 term of years under a fieri faciaB, isHued after
nnd irhile the defendant was in execution under
a ea. u. on the same judgment, was good
irhen made to a atrsnger to the execution. S
Fetera, 370.
In the United Statea t. Arredondo, it was
laid down as an universal principle that when
power or jurisdiction la delected to an; public
officer or tribunal over a subject matter, and its
exercise Is confided to his or their discretion,
the acts ao done are valid and binding as to the
subject matter, and Individual rishti will not
be disturbed collaterally for anything done in
the exercise of that discretion within the au- '
thority and power conferred. The only ques-
tions which can arise between an individual
claiming a right under the acts done and the
public, or any person denying their validity,
are power in the officer, and fraud in the party.
All other questions are settled by the decision
made, or the act done by the tribunal or officer,
unless an appeal or other revision of their pro-
ceedings is prescribed by law. 6 Peters, TZB,
lad principles laid down, and
none of them come into collision with any con-
struction given to the laws of Ohio, prescribing
the mode of transferring real estate by judicial
process. On the broadest ground, therefore.
which has been tal;en in any of the specified
objections to the proceedings of the Court of
Common Pleas In the attachment suit, we ate
most clearly of opinion that none of them can
be sustained without the violation of principles
which ought lo remain inviolable.
The remaining objection Is that the auditors
4,19*] did not make their 'deed to the person
who purcliBBed st the sale under the order of
the court. This is a matter entirely between
such person and those to whom the deed was
made; to Cutter, it is immaterial to whom the
convejanee was made; his right was extin-
guished by the sale and confirmation. It Is
equally immaterial to those who claim under
Cutter, who received the deed; Stanley, the
purchaser, or Koster, the plaintlfT: ft was a
matter between themselves, which can have no
effect on the validity of the sale, were it unex-
plained. But connecting the record with the
deeds, their inspection removes the objection,
for the reasona stated in the argument of coun-
sel. Samuel Foster was the prmeipal creditor,
and plaintlfT In the suit; Stanley purchased,
but look his deed from Foster ft Woodward,
with their covenants of seisin, warranty and
title: had he taken a deed directly from the
auditors, it must have been without any cove-
nants. The object was evidently to have an as-
surance of the title, for both deeds were exe-
cuted and acknowledged on the same day, and
the consideration of both was the same.
The judgment of the Circuit Court 1* af-
This cause came on to be heard on the tran-
■eript of the record from the Circuit Court of
the United Statea for the District of Ohio, and
Ml
was argued by eonnsel ; on eonsideratlon wher*-
of, it IB ordered and adjudged by this court
that the Judgment of the said Circuit Court in
this cause b^ and the same ia hereby affirmed
with coata.
WILLIAM B. ASHTON.
Defective pleadings — amendmenta.
Atter a ease baa been dlnnlssed for want of Id
rlidlctloD, tbe pleadlnn bavlDi been tecbnlealb
defective, the court wilT not, at a jiubs ■ •
iDalated o_ , , ,
revvraaL or tbe Former decree. aCUr tbe case bad
been fiaallv dlsuoted ol In tbls court.
Tbere will be no dinculty In maklDg the amend-
ment in tbe Circuit Court, la sucb a ease, U that
court ibHll aee at, Id Its Oiacietlan. to allow It to be
dooe, SDd tbe cause ma)' I' ^ - — . - - —
0 apnc
> Cbts '
it at parties, lo ocdtr to
THIS ease was before the court at January
Term, 1S34. on an appeal from the Circuit
Court of the United States for the Eastern Dis-
trict of Pennsylvania, and was dismissed for
want of jurisdiction; the complainants, Thomaa
Jackson and others, in the Circuit Court,
bavinK omitted to state in the body of the
bill. Hied cm tUe equity side of the court, that
the defendant was a citizen of the State of
Pennsylvania. 6 Peten, 148.
Mr. Key and Mr. Peters now applied to tha
oourt for liberty to amend the record, by stat-
ing the citizenship of tbe defendant, and to l«-
instate the cause on the docket.
Mr. Justice Story delivered the opinion of
the court:
A motion has been made to allow an amend-
ment of the record of this case, by inserting *n
allegation of the citizenship of the parties; and
to re-instate this cause on the docket under tbe
following circumstances: The cause came be-
fore this court at the January Term, IS34; and,
as will be found in the eighth volume ot Mr.
Peters's Reports (pp. 14S, 149), was then re-
versed for want of jurisdiction of the Cin-nit
Court by reason of the omission to allege that
the parties were cittxens of different States;
tbe appeal to this court was disinissed, and tha
decree of thia court was ordered to be certifled
to the Circuit Court.
We are of opuiion that, under these ciretun-
stances, the record cannot be amended, or Un
cause reinstated in this court. It would, ia
effect, be a reversal of the former decree of thin
court. We have no power over the decree*
rendered by this court after the term has passed
•and the cause has heen dismissed, or [•4B>
otheiwiac finally diiiDoscd of hart.
Peter* 1«.
Lbe v. Dick kt &u
Bnt, In onr opinion, there It no diffiputt; In
making the propoBed Bmfndmmt In the Ormilt
Court, if that court Bliail see fit, in its discre-
tion, to allow it to b« dooc. The cause may
then be reheard there; and upon the decree
newly rendered, an appeal can then be taken to
tbia court, or a decree maf be there rendered
by conaent of the parties, In order to enter
the cause n'ithout *nj delay to this court.
Tliia court, in tendering its former decree,
hkd no authority {not having any jurisdiction,
but to reverse for the want of juriadiction of
the Circuit Court) to Bend the cause back for
further proccpding*, with liberty to amend the
bill. But the mandate wai not understood by
na to apply, except to the record in iti then
etatei and we entertain no doubt that, notwith-
■tandins anything In the former decree of ra-
Teraal, it is entirely competent for the Circuit
Court, tn their discretion, to allov the amend-
ment now proposed to be made, and to re-in-
■tate the c)iu»c in thnt court. But we have no
authority in ihe matter.
The uiotioa ia therefore overruled.
48S*] 'SAMUEL B. LEE, Plaintiff in Error,
NATHAKIBL DICK et aL
Oiuranty of draft — draft made for larger sum
tban guaranteed^ when notice o( acceptance
of guaranty necessary.
Mempbls, Tennes-
Commercial suarant;. L., i
aae, ■U'lreBftHl ■ lelUr to D. A i„u. m m
■tatlcE that N. k 1). wIshPd to draw o
13.000. aarlne. "I'lease acwpt their di
Mreb/ coaraiitH tbc piiactual payroeot
a letter o* (be same d'" "" — * "' "
do fot you." N. A D. drew
SJiSO, wblcb 'bCT acGei>t«d : a
t draft, the; i;aTe notice to
to hiD (or tbe mooeT. No no
ft Co. to L. that tbty intended to »ce«Pt or ',
- - - - .._j .!._ -uiranlj, l«foi
_ _>t Ihe bill did
rt ol tt. ActtoD
id after bavlnE paid
L. tbat tbey looked
______ I, or had ao.
ceptciL and acted upon
paid til* draft. ^-
■■..burrc D. A Ci
■tItQted to recover v^,inAi iroa i^., nma uarL vi
the Mil for i4.2S0. Held, tbat altbouib tbe bill
was drawn for H.2M. (be guirant; would bare
operated (o bind L. tor the sum ol |2,000 iDCladed
In It, It notice oI tbe acceptance of It had been gii-
•a bv D. A Co. to L. ; but having omlttol to give
ancb notice, or that tbe; lateuded to accept, or hid
•Mepted and acted on tbe auarantT : L, vbi not
liable t» D. ft C«. lor anj part of the bill for M.-
MO.
A fnarantj Is a mercantile Instrument, and to b«
conatnied acrordloB to wbst Is falrlj to be pre-
•wned to bare beta tbe undrntandiug at tbe
partlea, wllhoul bdj strict technical nlcrtT.
If the cunrAntc stood Hone, uneinialued hj tbe
letter which accomnsDled It, It would undoubtedlv
be limited to a spcclOc draft for S2.000. snd would
aot eorer that amount In a bill for a larger sum:
bat tbe letter wblcb accomnnoka It tally JustlBes
the eondnslon that (be detenitant undertook to
narantr 12.000 in a drift far a lariter amount.
Tbe Utter and susrsnty were both wrltteo b; the
dcfeodent, on the wime ibeet of paper, bear the
■ane date, and mtj be construed together, as eon-
BtltntlDK (he gunranty.
1%e dedalan of (be rour( In (he case of Donglasa
Note. — As to nnllnnlnc. and other giiarintees.
■b4 thf^lr eoniitriirrian and effect, ses notes to
.. O. B. 2S1 ; 10 U ed.
_. .- notice et acceptance 9t narantr. ast aote
•• 2» L. ad. 0. I. «8(k
giving a lei
wbetber l( I
whom It Is
tooling of II
1 part]
r»n (o
on (h*
a r«8poDSll>llltr. but as
letdlni;
In I
. of fooduct, B__ _ _
rlgllanee in regard to the party la whose favor It la
Ilvea. Especially It la ImpoLtaDl In case of a cod-
Inulng jruarinty, ilace It may aulde hli Judgment
In recalling or suspending tt. This last remark by
ao means warranli the concluiloo that notice &
not oeoessary la a guarantj' of a single trauaacllon,
but only thut the reuBOU of the rule applies nuira
forcibly to a contlnning guaranty.
The same BtrlclueBs of proof as (o (he time In
which notice of tbe InlpnlloD to act under the goar-
BDty. 1B to lie given to chsrge a party upon his
guaranty si would be necessary to support an ac-
tion apon the bill Itself, when by (be law mercliant
a demand upon, and refusal by tbe acccptorB must
be proved In order to charge any oilier party upon
the bill. Thire are many cases where tbe guaiant*
•iB of a Bpeciac, eilistlng demand, by a |*4Mft
promlasovy note or otber evidence of a debt, and
BDch a guaranty Is given upon Ihe note Itsell. or
with a reference to It and recogntDou of It. when
no EDtlce would be necesoary. The gunrantor, In
Bucb cases, knows precisely wbat be guarBnlees,
BDd the eitent of his responsibility; and any. fur-
ther notice to bim would b« uteieBS. But when
tbe gnaraaty Is prospective, and to attach upon
future tranaactlons, and (be guarantor uninformed
whether big guaranty has tieen accepted and acted
npon or not. the StaeM and Inallce of tbe rule
requiring notice la aapported by ci — ■■■— -" — ■•---
IN error to the Circuit Court of the United
States for the District of West Tennessee.
On the 24th of September, 1S32, Samuel B.
Lee, the plaintiff in error, of Memphis, Tennes-
see, addressed to N. ft J. Dick ft Co., at New
Orleans, a letter In tbe following terms:
"Gentlemen — Nightingale ft Dexter, of Maw-
r^ County, TetutesBee, wish to dra-w on you at
all and eight montha; you wi!) please accept
their draft for 2000 dollars, and I do hereby
guarantee the punctual payment of It.
'Samuel B. Lee."
On the same paper containing this guaranty,
and on the same day, Mr. Lee wrote a letter to
F. B. Dexter, one of the firm of Nightingale ft
Dexter, In which he sa^a, "I have no objec-
tions to guaranty your hill, except it might af-
fect my own operations. I however send guar-
antee for 2000 dollars, which you can use If
you choose. The balance, I have no doubt, your
friend Mr. Watson will do for you. I would
cheerfully do the whole amount, but expect to
do business with that house and do not wiih
to be cramped in my own operations."
On the 6th of October, 1832, Nightingale ft
Dexter, at Nashville, having forwarded tha
letter of guaranty given by the plaintiff in er-
ror, drew a bill of exchange for (1.250 on N. ft
.1. Dick, at New Orleans, payable six montha
after data; which bill waa accepted on the
faith of the guaranty, and they paid the same,
and gave notice to Mr. Lee that they looked to
him for the money.
The dafendanta In error not having been
repaid the amount of the hill by the drawers,
instituted an action against Samuel B. Lee, on
hia guaranty; and In September, 1835, the
eause was tried, and a verdict and judgment
were rendered in favor of the plalntifrs.
During the progreaa of the trial of the cause,
the following bill of exceptions was tendered,
and was seated by tha oouiti
ft
SvraBU CotnT or tbi Usmo Smtbs.
484*] ■The court efaarged tbe jurj thU ff
tfa« de/endant Intended to euaranl; a bill of ex-
change, to be drawn for ¥2,000. he would not
ht liable upon a bill diawn for upwards t4,000;
but if be intended to guaranty $2,000 of a bill
to be drawn for a larger amount, that then he
would be liable for the S2.000. That the court
waa of opinion the letter accompanying the
guaranty was admiBsible in evidence, to ex-
plain whether the guarantor meant to guaranty
a bin for <2,000 or only C2,000 in a bill for m
larger amount: and it waa the opinion of the
eourt that the true conatriiction of the guar-
antj was, that he intended to guaranty the
payment of $2,000 in a bill to be drawn for a
larger amount. The cnurt also charged the
jury that no notice by N. A J. Dick A Go. to
the defendant that they Intended to accept or
bad accepted and acted upon tbi* guaranty, waa
n the
leceeaarUy
8. But, ft
. The defendant prosecuted this writ of error.
The case was luhmitted to the court, in
printed argtimenti, by Mr. Peyton for the
plaintilT. and by Mr. Bell for the defendants.
Mr. Peyton stated that,
In thia case it appear* that the plainHif, as
matter of accommodation, did, on the 24th dav
of September, 1832. at Memphis, in the State
of TenncBsee. at the requeit of the house of
Nightingale 4 D?xter, of Maury County, Ten-
nessee (a distance of more than two hundred
miles from Memphis), agree to guaranty the
payment of a draft of $2,000, to he drawn
thereafter by the house of Nightingale & Dex-
ter on the firm of N. &. J. Dick t Co., of New
Orl<-aDB; that Nightingale ft Dexter, on the 6th
of October, 1832, drew a draft in favor of U.
R. W. Hill on N. & J. Dick t Co., of New
Orleans, for the sum of $4,260; which draft
having been paid by N. & J. Dick, they insti-
tuted suit in March, 1335, against S. B. Lee,
upon his guaranty.
Upon the trial of the cause below, tbe court
Knnitted a letter to be read, which was writ-
u by the plaintiff to Mr. P. B. Dexter; to the
reception of which the plaintiff in error object-
ed. Tt waa shown that N. ft J. Dick & Co. ac-
cepted the bill of (4.250 upon the faith of the
aaid guaranty, and proved also that they paid
It, and gave notice to the defendant that they
looked to him for the money. But there Is no
proof of notice that the guaranty of tbe plain-
4SB*] tiff was •accepted, nor was there any
Eroof of a demand of the money from the
Duse of Nightingale &, Dexter, and notice of
their failure to pay given to the plaintiff. The
plaintiff in error relies upon the following
points and authorities:
1. Tbe guaranty waa for a draft of $2,000;
the draft in this case was for {4.260. If A
guaranty a specific amount to be secured by a
draft to that identlral amount, he is not liable
ability to pay, in case of loss, by misfortune or
otherwise, of his friend, would not reach be-
Tond that point; and if he had known that he
intended to contract a debt tieyond hie meani,
it might have been a sufficient cause for de-
clining to become bound for any part of that
amount. Aa for the letter written by the
plaintilf to Dexter, tt was Inadmissible in erl-
exhibited by Dexter to the defendants,
it ia to be received in evidence, is it at all in-
conaiatent with the guarantyT He does not
state in his letter how, or in what manner, he
is willing to guaranty his part of tbe amount
deiird to 1>e raised; whether he will secure
tha; sum by guarantying part of a large draft,
or the whole of a small draft; whether he waa
willing to involve his name and credit with that
of any other man on a large draft or not. To
determine this question, we must refer to the
guaranty Itself; that clearly shows the manner,
as well aa the amount which he was willing to
guaranty. The terms of this written contract
between the plaintiff and the defendants are
clear and unambiguous; ought their force and
efTect to be extended, by a reference to the let-
ter of plaiatifT to Dexter, not a part of that
contract, a private letter, couched in friendly
terms, making an apology for not agreeing to |
go farther and do more than he had done in ;
the written agreement T Did he write this let- '
ter for the eyes of the defendants! Might It
not have been withheld from them, with pro-
priety, by DexterT
Nightingale ft Dexter wish to draw for a
large amount of money on N. ft J. Dicic ft Oo>
It could not be effected without security. The
defendant is unwilling to go farther than a
specillc amount, secured in a draft to be drawn
for that amount. In his letter to Dexter, he
says: "I send a guarantee for 2000 doUan,
which you can use if you choose. Tbe balance,
I have no doubt, your friend, *Mr. [*4S6
Wataon, will do for you," etc. But, suppose
Mr. Watson does not do ao; is the bill or draft
to be for double the amount, and the balance
unsecured T This is made certain by a refer-
dollar alone, and without Mr. Watson, or aoma
other responsible guarantor for tbe balance, of
a larger amount than $2,0001 He baa do right
to suppose any further credit than the draft of
$2,000 would be extended, unless some «Da
would guaranty the payment of the amount
over and above that sum. He had an impor-
tant interest that the credit should not be so
extended, without security. But, at all events,
his name and his credit were not to be involved
with any other or greater amount than that
specifled in the ^aranty. In support of this
point, the plaintiff refers to the following as-
thorities: Philips v. Aatling, 2 Taunt. Bap.
SUd, 212; 3 Wheat. Rep. ISl, 162.
2. The plaintilT relies, mainly, on tbe want
of notice, and contends that the defendants
were bound to give him notice— first, of the ac-
ceptance of the guaranty by tbe defendanta,
and that they had or would extend the accom-
modation on the footing of it, and to what
amount he was liable; second, that the defend-
ants were bound, after the payment of the
money for Nightingale ft Dexter, to mak« a
demand of them for payment, end give noUoo
of such demand and refusal to the plaintiff.
What la the meaning of this guaranty I II
you, Mr. DlcIc, will accept the draft of tin
house of Nightingale ft Dexter at six or eight
■nonths, I will guaranty that you shall be pun«-
Paten >«.
Lee v. Dick kt al
dr«tt fftlh duet Is thii reBpansiliititf to be
spning upon him by a protest, bj the lota of
. hu credit, ftnd without one hour's time to pre-
pare for the abode t It U « purt ol the contrnct
itaelt; it is a. well settled principle in "the law
tnd usages of merchants," that a party giving
■uch A guaranty has a right to be informed,
within a reasonable time, whether it is ac-
cepted, and to what extent he is liable. This
knovledge is not a formal matter, but may be,
and generally is, most material, not only aa to
hii responsibility, and tlie necessity of provid-
ing the means to meet that responsibility, and
UTC hia credit, which is so vitally important to
a merchant; but it may be equally important
in future proceedings, dealings, etc. between the
parties. It may excite him to vigilance in look-
fug to his own flnal security. These undertak-
ings for the debt of another have always been
481*] ■strictly construed by the courts. The
ease ot Douglass et al. t. Reynolds et al. de-
rided in this court at January Term, 1833, re-
ported in 7 Peters'! Rep. commencing at p. 113,
IS directly in point. In p. 126 the court says:
The party giving a letter of guaranty has a
right to know whether it is accepted," etc. and
•aaign* the most conclusive and satisfactoiy
maoQB for that "right." In the case of Ed-
nondston v. Drake & Mitchel, decided at Janu-
ary Tenn, 1831, reported in 6 Peters, 624, 637,
the court says: "It would, indeed, he an extra-
ordinary departure from that exactness and
precision which peculiarly distinguish commer-
cial transactions, which ia an important prin-
ciple in the law and usage of merchants, if a
merchant should act on a letter of this charac-
ter, and hold the writer responsible, without
S'ving notice to him that he had acted on it.
le autboTJtiea quoted at the bar on this point,
nDqiteationably establish this principle." In 7
Cranch, B2, in the case of Russell t. Clark's
Eiecutora, Chief Justice Marshall says, "plain-
tiff muat give immediate notice to the defend-
ant of the extent of his engagement*," In such
a ease as the present. This principle is so
dearly and so recently established by the
decisiona of this court Id the cases above
recited, that it ia not deemed to be im-
portant bj the plaintiff to accumulate
lUtboritiea upon this point. He referred
to a few others, vis., X Peters's Rep. 113,
12A; 5 Peters, 624, 637; 1 Mason's Rep. 340( T
Cranch, Bl, 92.
3. The plaintiff contends that a demand of
pavment should have been made of Nightin-
gale Jt Dexter, and, in ease of nonpayment by
them, that notice of such demand and nonpay-
ment should have been given in a reasonable
time to the plaintiff; and, for want of this, he
ia discharged from hit guaranty.
In the case of Douglass et al. r, Reynolds et
aL before referred to in T Pet«ra, 127, there
will ba found an authority directly in point
Tba court says, "hy the very terms of the
guaranty, aa well as by the general principles
ol law, the guarantors are ont^ collaterally
liable upon tbe failure of the principal debtor
to P*T the debt. A demand upon him, and a
failure on his part to perform his engagements,
art inditpemable to constitute a eaaua fnderis,"
Mai "The guaianton «n sot to ba bald to
• !<. ad.
any length of Indulgenoe of credit wbtcb the
creditors moy choose," etc.
This position is sustained by the other au-
thorities referred to on the preceding points.
The only notice given by N. k J. Dick k Co.,
'as appears from the record, was that [*488
they looked to the plaintiff for tlic money.
The court below charged tbe jury "that no
notice by N. k J. Dick k Co., to tlie defend-
ant that they intended to accept, or had accept-
ed and acted upon tliis guaranty, was neces-
sary." Thus the plaintiff was kept in ignorance
of bis liability lor a firm, at a great distance
from his residence, the condition of which was
unknonn to him; having no motive, no inter-
eat to inquire into its condition, although it
was in failing circumstances; and all others,
whose fate depended upon its success, hod an
opportunity of knowing the facta, and tbe priv-
ilege of encteavortng to provide a remedy. This
cannot lie tlie fair interpretatiun of tbe rule of
law applicable to such cases. In permitting
the letter of tbe plaintiff to Dexter to be read,
it was agreed, "that it should go to the jury,
3 [ether with tlie bill of exchange, and their
ect be charged upon by the court." The
coiu-t was of opinion that the letter of the
plaintiff to Dt'xter was admiaaible in evidence,
to explain nhnther tbe guarantor meant to
guaranty a bill for $!,000 only, or $2,000 in a
bill for a larger amount; and it was the opin-
ion of tbe court that the true constiucLiun of
tbe guaranty was that he intended to guaranty
tbe payment of $2,000, in a bill to be drawn
for a larger amount." Now, it is evident tliat
the opinion of the court, as to tbe intention of
the guarantor, was derived not from the guar-
anty itself, but from a piece of evidence — the
letter. If that letter was admissible at all, it
was as matter of evidence, to go to tbe jury;
and they were the proper triers of its force,
weight and meaning. Tbe court decided the
fart of intention from evidence adduced; which
evidence and conclusion it was the province ot
the jury to weigh and decide upon for them-
selves. The court, in the very same paragraph,
says, "that, if the defendant intended to guar-
anty a bill to be drawn for 2,000 dollars, he
would not be liable upon a bill drawn for up-
wards of 4000 dollars." And then he instructs
the jury that such was not his intention, but
that he intended to guaranty a part of a large
draft, etc This was deciding the whole ques-
tion. The jury bad nothing to do but to ren-
der a verdict against the defendant below.
Mr. Bell, for the defendants. '
It was objected, upon the trial, that the guar-
anty was for $2,000, and the bill drawn by
Nightingale k Dexter woa for $4,250. The
letter accompanying the guaranty, together
with the bill for *$4,260, were offered [*48»
in evidence to prove tliat Lee had engaged to
guaranty $2,000, part of a bill for a larger
amount; and it was "agreed" by counsel that
the effect ol this evidence should be charged
upon by the court. It was the opinion of the
court that the true construction of the guaran*
ty was that the guarantor intended to guaran-
ty the i.nyment of $2,000, on a bill for a larger
amount.
It is diOicult to see how there could be an
doubt upon this point. The letter to P. B,
Dexter ought to be regarded as full and satis-
K9»
&DPBE1IB Coon tm TUK UNim SiAna.
Z
UetoTf. In ODC p^rt of the letter he aajs, "I
h«»e no ohjections to guftranty your bill, except
it night Meet my own operations. I, however,
send you a guarantee for 2000 dollars, which
you can Uie if you choose. The balance, I
have no doubt, your friend Watson will do for
But it waa ohjeeted that no notice had been
given by N. Il J. Dick &, Co. to Lee, the
guarantor, that they accepted the guaranty, or
that they had accepted a bill upon the faith of
it; and the oourt charged that no such notice
was Deeessaiy.
There ia no general rule of law applicable to
the question presented in the record. Every
case of guaranty muat be decided upon Its on-n
particular circumstances. The cose of Douglass
et a1. V. Beynolda et al. 7 Peters, 113, is the
only one in which the doctrine is assumed that
such notice, in all caaea, ia necessary and the
right of the guarantor; and in that case the
luestion did not arise, and could not call for
he serious attention of the court. That was
ciearly a case of a continuing guaranty, is re-
gard to which so many considerations of con-
venience and fairness urge the reasonableness
of the doctrine, that the courts have gone very
far in adding to and perfecting such contracts
between parties, by assiinilatin^ them to the
conditional undertakings of indorsers and
drawers of bills and notes. But in the case of
a limited and specific guaranfy like the pres-
ent, it is submitted, with deference, that there
IS no settled rule of law requiring notice to be
given, either of the acceptance of the guaran-
ty, or that any liability has been assumed upon
the faith of it There are cases, unlike the
present, however. In which it was proved that
injury had been sustained by the want of such
notice; and where it was ruled that no notice
having tieen given was a fatal omission.
The transaction in the ease before the court
la peculiar. The precise nature of it appears
from the facta aet forth in the bill of exeep-
4S0*] tions. *The bill, part of which was
guaranteed by Lee, was made to enable the
drawers. Nightingale b. Dexter, to raise funds
in Tennessee; and it waa accepted by N. k J.
Dick A Co. for their accommodation, upon the
faith of the guaranty. Lee does not give a
guaranty to the holder of the bill that the
drawers shall accept, or when accepted, that
they aball pay it, or that the drawers shall pay
the bill to the holders upon failure of the ac-
ceptor to pay — the usual case of guaranty: it
is a contract of guaranty, collateral to, and
separate from the bill entered into by Lee, who
had no dealings with the drawers, that Night-
ingale & Dexter, the drawers of the bill, and
who he knows, from the very nature of the
transaction, hsd no funds in the hands of the
acceptors, shall be punctual in providing funds
to meet their own bill at maturity.
He agteea that if N. k 3. Dick will draw e
bill for the accommodation of Nightingale k
Dexter, and they should fail to make punctual
provision for itfl payment, he would pay it,
upon demand, himself. All the circumstances
of the case showed that when the guaranty was
given, he could not doubt that it would be ac-
cepted, and acted upon. It was a presumption
be waa bound to act upon. If he bad had OO'
Uoe that the bill was aeocptMl upon the faith of
his guaran^, all he oould have done wouM
have been ia urge Nightingale A Dexter t«
make the necessary provision to meet the bOl
when due. N. & J. Dick ft Co. upon the re-
quest, and the ffiaranty of Lee, accepted a bill
at six months for the accommodation of Night-
ingale & Dexter: it Incomes due, and they hsn
to pay it out of their own funds.
The question is, shall they lose the benefit of
his guaranty, or shall Lee escape responsibility
upon the ground that no notice was given to
him that hie guaranty was accepted, or that a
bill had been accepted upon the faith of it, un-
til the maturity of tlie bill, and after payment
of it out of their own funds hy the acceptors,
upon the default of the drawers to make the
necessary provision I What law, or rule of law,
created by judicial construction, oompels
such a result, in the ease of a guaranty which
does not appear upon the hill, and wneu the
transaction is specific and singleT It is re-
spectfully submitted that no case of this nature
has ever gone off upon such a principle. The
general rule, in relation to notices, in the ease
of a guaranty not appearing upon a bill or note,
is that the guarantor cannot object to tlie want
of it. That this is the doctrine recognized liy
the 'writers upon this subject, may be [*4Bt
seen in Chitty on Bills, 204, 220, 230, 259, and
the cases there referred to. There ia a dis-
tinction between the rights of guarantors who
are parties to bills and notes, and those whose
names do not appear upon them. Notice of a
failure to accept or pay a bill or note guaran-
tied hy a separate contract, doea not appear to
be required in any case. When the guarantor
ia party to the bill or note, the rule is not W
strict as in an ordinary ease of indorsement.
It is going lieyond all former rules and deci-
sions in analogous cases, to require notice to Im
given to the guarantor, by an indorser or ac-
ceptor of a bill, that he took the bill, or became
a party to it upon the faith of the guarantor,
before there was any default of payoieot.
It is also objected that demand of payment
should have been made by N. k J. Dick A Co.
of Nightingale k Dexter, and notice of failure
to pay upun such demand given to Lee, twfore
he could be charged. The undertaking of Lee
H'as absolute that Nightingale k Dexter should
make punctual provision for the payment of
the bill. In some eases where the guarantor ia
a party to the bill, if the guaranty is absolute
no notice is necessary. 20 Johns, Rep. 365.
In all cases of guaranty it muy be laid down
as a general rule that if the guarantor is not
prejudiced by the want of notice he cannot ob-
ject. B East, 242; Chitty on Bills, 2SB,
This case comes up on a writ of error from
the Circuit Court of the United States tor
West Teuneaaee. It was a special action on ttw
case, on a guaranty given by the plaintiff in er-
ror in favor of Nightingale A Dexter. 1^
declaration is special, stating that the defend-
ant in the court below, by his guaranty beariw
date the 24th of September in the year 1832,
directed and addressed to the plaintiffs below,
requested them to accept the draft of Nightin-
gale k Dexter for the amount of $2,000, and
thereby prcoiused to guarantr th« punctual p^-
P«tws ll»
ment of the NUne to that vnonnt; and KTcrs
thmt Nightingale & Dexter afterwarda, on the
5th of Uctober, IS3-2, drew a bill on the plain-
tiffs below tor (4,250: and that, conHiiinj; in
the promise of the defendant, the? accepted the
Hune, etc. The declaration contains a count al-
leging an agreement by the defendant to guar-
antj- the (laytnent of l»'2,000, part of the S<1,ZS0,
with tlie necessBij averinents to charge the de-
fendant nith the payment of the 12,000.
4>2*] 'The defendant pleaded the general
isaue; and upon the trial of the cauae, the
plaintitr produced the following evidence:
"Memphii, September 24tb, 1832.
"Meaara. N. i. J. Dick t Co.
"Gonttenen: Nightingale ft Dexter, of
Maury County, Tennessee, wish to draw on
jou at six or eight months date. You will
{lease accept their draft for 2000 dollars, and
do hereby guaranty the punctual pa}-tnent of
it. Very respectfully your obedient servant,
"Samuel B. Lee."
"Naslivllle, Octolier 5th, 1832.
"Exchange for $4,250.00.
"8ii months after date of this first of ex-
ehange (second unpaid), pay to H. R. W. Hill,
or order, 4^50 dollars — cents, value received
and charge the same to account of yours, etc.
"Nightingale t Dexter.
"To N. k J. Dick &, Co., New Orleans."
The plaintiff also ofi'crcd in evidence the fol-
lowing letter of the defendant, Samuel B. Lee;
which letter was written upon the same sheet
of paper with the guaranty, but on different
parta of it.
"Memphis, September 24th, 1832.
"Mr. P. B. DexUr.
"Dear Sir: Yours of the 16th Inst, came to
band In due time. I was absent, or should
have answered it sooner. 1 left Mount Pleas-
ant sooner than I expected when I saw you
last. I learned that my presence was wanted
at Savannah, and put o p h. t had calculated
to pel along with business without having any-
thing to do with drawing bilb or with the
hank: but there is no cash in this quarter, and
oar bills at the ea«t are (ailing due, and T have
no other alternative but to draw for what
funds I am compelled to have, and may, dur-
ing the winter (should I go largely into tha
cotton market], wish to draw for a consider-
able amounL I have no objections to guaranty
your bill, except tt might affect my own opera-
tions. I, however, send a ouaranty for 2000
dollars, which you can use if you choose. The
balance, I have no doubt, your friend Mr. Wat-
•on wilt do for tou. 1 would cheerfully do the
whole amount, but expect to do business with
that liouHe, and do not wish to be cramped
491'] *in my own operations. Spun thread,
also coarse homespun are in good demand.
Uj compliments to Mrs. and Hiss Nightin-
gale^ Your friend, Samuel B. Lee."
It was agreed by the counsel that the bill of
exchange and letter should go to the jury, and
their effect, etc., be charged upon by the court.
The plaintifT proved that N. ft J. Dick ft Co.
aeeepted the at>ove hill, npon the faith of the
•aid guaranty, and that they had paid It, and
Sve notice to the defendant that they looked
him for the money. The court charged the
jaiy that 11 the defendant intended to guaran-
W a bill of •xehansa to be drawn for C2,000, he
t li. ed.
would not be liable for a bill drawn for up-
wards of 94,000. But If be intended to guar-
anty (2,000 of a bill to be drawn for a larger
amount, tlien he would be liable for the 92,000,
That the court was of opinion that the letter
accompanying the guarantj was admissible in
evidence to explain whether the guarantor
meant to guaranty a bill for |2,000, or only
$2,000 in a hilt for a larger amount. The
intended to accept, or had accepted and acted
upon this guaranty was necessary. To which
opinion of the court the defendant excepted.
The questions arising upon this case are:
1st. Whether this evidence will warrant the
conclusion that the defendant intended to guar-
anty 12,000 in a hill to be drawn (or a larger
2d. Whether N. ft J. Dick ft Co. were bound
upon the guaranty.
A guaranty is a mercantile Instrument, and
to be construed according to what is fairly to
be presumed to have been the understanding of
the parties, without any strict technical nice-
ty. If the guaranty stood alone, unexplained
by the letter which accompanied it, it would
undoubtedly be limited to a specific draft for
92,000, and would not cover that amount in a
bill for a larger sum; but the letter which ae-
companted it fully justifies the conclusion that
the defendant undertook to guaranty 92,000 in
a draft for a larger amount The letter and
guaranty were both written by thi» defendant,
on the same sheet of paper, bear the same date,
and may be 'construed together, as con- [*4II4
stituting the guaranty, 7 Cramh, 89. Thie
letter is obviously in answer to one received
from Dexter, one of the Urn) of Nightingale ft
Dexter; for he says, "Vour letter of the IBth
instant came to hand in due time, etc. I have
no objection to guaranty your hill, except it
might affect my own operations. 1, however,
send a guarantee for 2000 dollars, which you
can use if you choose." This was clearly in
answer to an application to guaranty a larger
sum, and admits of no other construction than
that he should have no objection to guaranty
the whole sum he requested, If he was not un-
der a pjire liens ions that it would affect his own
operations. The bill not having been drawn
until the 5th of October, eleven days thereafter,
the letter must have referred {o a bill he
wished to draw. But this is not alt; he adds,
"the balance, I have no doubt, your friend Mr.
Watson, will do for you." The balancel What
balance could this mean! Clearly the balance
between the 92,000 for which he sent the guar-
anty, and the amount of the sum mentioned In
the letter for which he wanted a guaran^.
And again he says: "I would cheerfully do
the whole amount, but expect to do business
with that house, and do not wish to be cramped
in my own operations." The whole amount!
What amount is here referred toT This admita
of no other answer than that it was the amount
of the sum mentioned in the letter he had writ-
ten to Dexter, in which he requested a guaran-
ty. The opinion of the Circuit Court, there-
fore, upon tbe eonstruetiou of the guaranty,
waa Gorreot.
Sifl
SnPBKm Coun or the Uhitid Statm.
1831
n* next questioQ h, whether the plaintiffs
were bound to give notice to the defendant
that thejT intended to accept, or bad accepted
Uid acted npon this guaranty. It ia to be ob-
served that thJB guarautj was prospective; it
looked to a draft thereafter to be drawn,
Uld this question is put at rest hj the deciaioni
t>t this court. The case of Russell v. Clark's
Executors, 7 Cranch, 91, woe a bill in chancer;
bl recover a sum of inone; upon a guaranty af-
l»ed to grow out of several letters written hj
Clark ft Nightingale to Ruasell. The court
say: "We cannot consider these letters as CQQ-
stitutiug a contract by which Clark t Nightin-
gale undertook to render themselves liable for
the engagement* of Robert Murray ft Co. to
Nathaniel Russel. Had it been such a contract,
it would certainly have been the duty of the
plaintiff to have given immediate notice to the
defendant, of the extent of his engagements."
Although the point now in question was not
precisely the one before the court in that case,
495*] as there was *no contract of guaranty
made out, yet it is laid down as a settled and
undisputed rule. The case of Edmondaton v.
Drake ft Mitchel, 5 Peters, 621, was an action
founded on a letter of credit, given by Ed-
mondaton to Caatello ft Black, as follows: —
"Gentlemen: The present is intended as a let-
ter of credit in favor of my regarded friends,
HesBTB. J. ft T. Robinson, to the amount of 40
or 60,000 dollars; which sum thqr may wish
to invest through you in the purchase of your
produce. Wliatevcr engagements these gentle-
men may enter into, will be punctually at-
tended to."
On the trial, the court was requested to in-
struct the jury that in order to make the de-
fendant liable to the plaintiff under the con-
tract, they were Iwuna by the law merchant
to give him due notice. Upon this prayer the
court was divided, and the instruction was not
given, and this court decided that the in-
struction ought to have been given. The
court said it would indeed be an extraordinary
departure from that exactness and precision
which peculiarly distinguish commercial trans-
actions, which IS an important principle in the
law and usages of merchants, if a merchant
shauM act on a letter of this character, and
hold the writer responsible without giving no-
tice to him that he had acted on it. The au-
thorities on this point, say the court, unques-
tionably establish this principle. And again,
the case of Douglass et a1. v. Reynolds et al. T
Peters, 12S, was an action upon a guaranty;
and the court was requested to instruct the
jury that to enable the plaintiff to recover on
the letter of guaranty, they must prove that
notice had been given, in a seasonable time
after said Utter of guaranty had been accepted
by them to the defendant, that the same had
been accepted. This instruction the court be-
low refused to give; and this court say the in-
struction asked was correct, and ought to have
been given. That a party giving a letter of
^aranty has a rifrht to know whether it is
accepted; and whether the person to whom it
I* addreissJ means to give credit on the foot-
ing of it or not. It inav be most material, not
only as to bis responsibility, but as to future
rights and prociH'ilings. It may regulate in a
great measure his courae of conduct, and his
exercise of vi^lanee in regard to the party in
whose favor it ia given. Especially it is im-
portant in case of a continuing guaranty, sine*
it may guide his judgment in recalling or sua-
pending it. This last remark by no means
warranto the conclusion that notice is not
necessary in a guaranty of a single transac-
tion; but only tnat the reason of the rule ap'
plica more forcibly to a continuing 'guar- [*49S
antj. It is unnecessary, after su^ clear and
decided authorities in tnis court on this point,
to fortify it by additional adjudications. Wa
are not aware of any conflict of decisions on
this point; and if there are, we see no reason
for departing from a doctrine so long and so
fully settled in this court.
We do not mean to lay down any rule with
respect to the time within which such notice
must be given. The same strictness of proof
is not necessary to charge a party upon hi*
guaranty as would be necessary to support as
action upon the bill itself, when by toe lew
merchant a demand upon, and refusal by th*
acceptors must be proved in order to enargs
any other party upon the bill. 8 East, EU.
There are many cases where the guaranty i* of
a specific existing demand by a promissory note
or other evidence of a debt; and such guaranty
is given upon the note itself, or with a refer-
ence to it and recognition of it; when no
notice would be necessaTy. The guarantor, in
such cases, knows precisely what he guaranties,
and the extent of his responsibility; and any
further notice to him would be useless. 14
Johns. Rep. 34B; 20 Johns. 303. But when ths
guaranty is prospective, and to attach u;kui
future transactions, and the guarantor unin-
formed whether his guaranty has been accept-
ed and acted upon or not, the fitness and jus-
tice of the rule requiting notice is supported
by considerations that are unanswerable.
We are accordingly of opinion that the Cir-
cuit Court erred in deciding that notice was not
necessary, and that tha judgment must be rt-
Thia cause came on to be her.rd on the tran-
script of the record from the Circuit Court of
the United BUtes for the District of West
Tennessee, and was argued by counsel! on coo-
sideration whereof, it is ordered and adjudged
by this court that the judgment of the said
Circuit Court In this cause be, and the aanw It
hereby reversed; and that this cause be, and
the same is hereby remanded to the aaid Cir-
cuit Court tor further proceedings.
•EJJZA BROWN, Appellant, [•<#!
ot TlrclDlR against nmrr provides
"ower of monev or gooda nisj fX-
chsncery aeainst (be lenflers, via
'a a'l°bllgalns.''caDlvsctjt''oI shirt*
ve passed l)etw<>en them relnllve M
le repayment tli*rpof, and th* taur-
BsowN T. SwAitir.
4n
M tkd confMcMtlOB Ot tbe rame; and l( tberenp-
M It ibkll mpptar tbat Dare thin lawful iDtcrrBt
«u rcaerred, tb< leoder ibal] be obliged to accept
bl) pc[aeli>a1 montj wltbout Interest or canaldeia-
(loa. and par costa : but eball be diRclinrgi'il o! all
tba Dtber peoaltm of Ihla act." The complalnnnia
b) (be District of CoIi
eult Court of II
_ - trict of Columbia. Diea a Dili id
nllel under the Btatule. agalnat ao alleged u
Id par t
Held, that tbe bill vaa di^-fldcnt Id nmteiliil arei-
BcDIa, easential to all auch bllla □( discoverj.
When th« I.pelBlBIure of Vlr^clnla [laseed the
■tatute. It fixed tbe nature and exient ol the Jurla-
dlcllou of I court of equItT to compel a dbicuvvrv.
upon oath, from an Inlcrestcd psrtj, tn n i.ult
eflber at law or tn eqnlly ; and the nilea which
Sultj bad prescribed to Itaell to eofoice lia lurla-
ctlon In tbiB reeard. It knew the distinction be-
tween a bill for aurh discovery, from other bllla Id
ebancerr ; which are also bllla for dlscoTcrT. One
ef tbe tormer IB a bill For tbe dlacorenr of facta al-
leged to exist onlj In the knowledge of a pciBun. a
part; to a private tianaactlon with tbe person seek-
ttg the discloaure, easpntlal to the estHli'lahment
of a juiit right Id tbe latter, and which would be
defeated wllliout sucb aiaclOBure. In other worda.
tt la a bill to discover facta wblcb cannot be prorrd
aceordlnK to the eiUtlng torma of procedure at
la*. Tbe jurisdiction of a court of equttj. Id tbis
teirard. rceti upon - ■-.■■■- - -' -
0 other
impel Bl
_ _ , ,. ._ ad Ib Bought in
aquitr. If It iball appear that tbe same facta could
be obtained b; tbe process of the courts of common
law, It ia ao abuse of tbe powers of chancerj to
Interfere, Tbe courta of common law bavluK full
^a (bat tbe ltd of equity can alone be irantod, for
a dlscoTFrf In those ranes where Ih-re Is do wit-
neaa, to prove what Ib aoURbt from tbe coaselencs
of an Inierested party. Court* of cbancecy have
eatabtlshed rules For the ciei-clae of tbi'lr Jurisdic-
tion, to keep It within It* proper limits; and to
prevent It from encroaching upon the Jurisdiction
o be applied to a bllt sechtng a dl-:ci
erj from an Interretpd party. Is (hat the
mpl*li
f law In the proEtess of
, jiBtlvely stated in -"-- '
anted for siirh purpose.
tbe hill, that
'that after a verdict
4»S»1 "'Tbe feL — . _
at Ikw, a party cornea too lata with a bill of dlicur-
ei7. Tbera mnit be a clear case of accldeut, nur-
prlae or fraud, before equltv wilt ltiti?rfere. Sucb
now la tbe establlabed doctrine Id EnilaDd, end
baa been for a longer time the doctrine In tbe
United Statea. And tbe doctrine, as applied to a
r*^ for relief from usury. Is that a dftendnnt
~ ' ~ ' t alTeeed to be usurious,
Boed at law
"1 not be entitled to
" ~ ■' ' " 1 Indtnnent
fan ■ Tcrdtct ,__. .. .., ..
blm; and especlallv when be does
maklaii a defease at law. The reason ot tee rule is
that tbe proof oF usury la a mod defense at law :
and when It la in the knowledge of tbe defi'ndant,
no sallsfactorT reason can be given why the discov-
IVhetacTet a partr seeking a discovery had knowl-
lo to irtarward*
ON spp«a1 from tlie Ctrcaft Court of the
United States for the District of Columbia
b the Connt7 of Washin^on.
Thia case was argued by Mr, Key and Mr.
Jonw for the appellant, and by Mr. E. J, Lee
sod Mr. Swann for the appelleea.
Hr. Jbatice Wayiw delivered the opinion of
the court:
Thin ia an appeal from the Circuit Court of
the United Statea for the I»etrlct of Columbia
and County of Alexandria.
The bilf of the ajipellees, who were tbe
complainants in the Circuit Court, is for an in-
junction to stay ftirther proceedings ot) a jndg-
ment at law, confessed by the appellees to the
appellant.
The bill states that the in'.rstate, William T.
Swann, in his lifetime, in October, 1819, pro-
posed to borrow from the sppellant f2, 300, and
pay her for the use of the money at the rate of
ten per centum per antium. That the appel-
lant agreed to the proposition. (1,000 were
secured by a ground rent of $15! per annum
on a lot in Alexandria, and the balance of the
loan by a bond, hearing an interest of six per
cent, por annum, with William B. Alexander
and Richard B. Alexander as securities. The
intestate died in October, 1820; and in June,
1S21, his administratrix paid the appellant
$230; in August following she paid the further
sum of 11,055.30, to which she adds $11B, be-
lieved by her to have been paid by the intestate
before his death. After these payments, the
appellant brought separate suits upnn the bond
for $1,300, against the administratrix, and the
securities to the bond. The bill then states
that the appelleea "felt themselves at a loss to
know what course to pursue in defense of the
aaid suit. That tbey bad been advised that
the transaction between tbe 'defendant [*4t9
and your oratrix'a late husband woa usurious;
and they understood from their counsel that if
the case was defended at law upon that
ground, and they should succeed, that the debt
would be lost to tbe defendant. That your
oratrix and orator were not disposed to push
the matter to this extremity; your oratris
knew that lier late husband had received the
money, and she wished, at all events, that the
amount borrowed should be returned to tbe
defendant; and your oratrix'a counsel, under-
standing her wishes, agreed, as he informed
her, at the bar, at the time the judgment was
rendered upon the bond, with the counsel of the
defendant, and in the presence and bearing of
the court, that your oratrix'a plea of usury
should be withdrawn, and a judgment rendered
on the bond; with an understanding, that your
orator and oratrix should have the privilege of
resorting to a court ol equity, to have the elalm
settled upon tbe same principles as if she had
instituted against tbe defendant a bill in chan-
cery for the discovery of the usury. Your
oratrix and orator have been advised that they
are l>ound, in a court of equity, to pay nothing
than the principal debt, and that they
are entitled to have credit for the moneys
which she has paid, to be deducted out of tu
of (2,300, loaned aa aforesaid, and only
buund to pay the balance of principal, after
such deduction shall have been made." The
bill further states that if a settlement could
be made upon these principles, that the oratrix
would hold herself bound to pay "the balance
which might be due, as soon aa tbe affairs of
the estate would admit it." That the defend-
ant has issued an execution against your ora-
trix, and a aeparate execution against Richard
B. Alexander and William B. Alexander, for
the whole amount of tbe bond upon which tho
judgment at law was rendered; claiming not
onlj the full Kffuiuqt 9f th* debt, but the Inter-
to*
fiuFSEMK Coun OF iTHi Usmo Btatkb.
UM
upon
execution ageiiiBt herielf »nd tbe lecurities.
The bill concludes with a. prayer "that the de-
fendant may, upon her corporal oath, true and
perfect anawera make to the aeveral allegations
of the bill and the tnatten therein charged, as
If the same were again repeated, and she were
Interrogated thereto; that the complainants
might have an injunction from the court, re-
■training the defendant from proceeding fur-
ther upon the judgment, and from executing
the same In any manner; and that the defend-
ant may render a true and perfect account of
all moneys received by her, on account of the
aforesaid debt." Upon flllng the bill, the court
granted an injunction. At a subsequent
BOO*] 'court, the injunction, on motion of the
defendant, waa in part dissolved; and the de-
fendant filed a demurrer and answer to the bill.
Id the answer the usury is denied. The com-
filalnants filed exceptions to the answer. The
Djuuction was then dissolved, and liberty was
given to the defendant to prosecute her judg-
ment at law. At the same time, on complain-
ants' motion, leave was given to amend their
bill and to prosecute the suit thereon, and the
cause was returned to the rules for further
proceedings. The defendant's demurrer to the
complalnauts' bill, and the complainants' ex-
ceptions to the answer, were then set down for
argument. The cause waa argued upon the
demurrer and exceptions; and in the June
Term of the court, in 1828, the judgea were of
opinion that the court had jurisdiction "of the
cause in equity, by virtue of the third section
of the statute of usury of Virginia; although
the plaintiffs have not stated Ui the said bill
that they cannot prove the usury without the
aid of the defendant's answer, and although
judgment had been rendered at law; and the
court ordered the demurrers to be overruled,
so far as tbey proceed upon these grounds."
The plaintiffs had leave to amend their bill,
and the injunction was re-instated as to the
whole amount of the judgment in the bill men-
tioned, except the sum of $899.70. The sup-
Klemental hill was filed, and the defendant put
I a demurrer and answer thereto.
We do not think It necessa:^ to refer partic-
ularly to the supplemental bill, or to the de-
murrers and answers of the defendant to either
the original or amended bills, or to the Inter-
mediate proceedings In the cause. The court
made its final decree in December, 1832; and
In It, and the orders overruling the demands,
haa put the case upon two points; which, con-
trary to the opinion of the court, we think so
decidedly In favor of the appellant, that we
need not go further, In both, the Circuit Court
was of opinion that the court had jurisdiction
of the cause, by Tirtue of the third section of
the statute of Virginia against usury; and in
the first order overruling the demurrers, it add-
ed, "although the plaintiffs have not stated in
their bill that they cannot prove the usury
without the aid of the defendant's answers,
and although judgment haa been rendered at
Uw."
The third section of the statute la in these
words: "Any borrower of money or goods
may exhibit a hill in chancery against the lend-
WB, and compel them to discover on oath the
money they really lent, and all bargalu^ em-
tract* or shifts whicb shall have paaiad bt-
tween them relative to such loan or the repay-
ment thereof, and 'the interest and con- ['BOl
sideration for the same; and If thereupon It
shall appear that more than lawful Intereat
waa reserved, the lender shall be obliged to at-
cept his principal money without interest or
consideration, and pay costs; but shall be dis-
charged of all the other penalties of this aat."
The first question, then, to be considered Is,
can the bill of the complainants be brought
within the operation of the seetioni We think
not. Besides only making the contingent and
prospective offer to pay the principal, when ths
affairs of the intestate "would admit of it;*
which Is altogether ioaufllcient, aa any other
indeSnite offer or acknowledgment of obliga-
tion to pay the principal would be; the bill is
deficient in the material averment, essential to
all such bills of discovery as this is, that the
complainants are unable to prove the facts
sought from the conscience of the defendant
by other testimony; but, on the contrary, facts
are stated in it from which a different pre-
sumption may be fairly raised.
Wien the Legislature of Virginia passed ths
statute, it fixed the nature and extent of the
jurisdiction of a court of equity to compel a
discovery, uj>on oath, from an interested party,
in a suit either at law or in equity, and the
rules which equity had prescribed to itself to
enforce its jurisdiction in this regard. It kneir
the distinction between a bill for such discov-
ery and other bills in chancery, which are also
bills for discovery. One of the former Is a bill
for the discovery of facts alleged to exist only
in the knowledge of a person, a party to a pri-
vate transaction with the person seeking the
disclosure; essential to the establishment of a
just right in the latter, and which would be
defeated without such disclosure. In other
words, it is a bill to discover facta which can-
not be proved according to the existing forms
of procedure at law. The jurisdiction of a
court of equity. In this regard, rests upon the
inability of the courts of common law to ob-
tain, or to compel such testimony to be given-
It has no other foundation: and whenever a
discovery of this kind is sought in equity, if it
shall appear that the same facts could l>e ob-
tained by the process of the courts of common
law, it is an abuse of the powers of chancery
to interfere. The courts of common law hav-
ing full power to compel the attendance of wit-
nesses, it follows that the aid of equity can
alone be wanted for a discovery In those cases
where there Is no witneM, to prove what is
sought from the conscience of an interested
party. Courts of chancery have, then, estab-
lished rules for the exercise of this jurisdiction.
to keep it within its proper limits, and J'fiOl
to prevent it from encroaching upon the juris*
diction of the courts of common taw.
The rule to be applied to a bill seeking a dia-
covery from an interested party is that the
complainant shall charge in his bill that the
facts are known to the defendant, and ought to
be disclosed by him, and that the complainant
is unable to prove them by other testimony;
and when the facts are desired to assist a court
of law in the progress of a cause, it should b*
•fBrmsttvely stated In the bill that they are
wanted for •neh purpose. Bmb la the rule In
Patera !«•
Bbovh t. SwAinr.
SOS
Tl^nU, M m^T Iw Men to DutbI v. Rou, 2
Hun. 200, uid in B>ia v. Basa, 4 Hen. & Muu.
47B; «nd it will be applied to the construc-
tion of the third section of tha etatute agaiuat
Mury, upon the authority of her own courts.
Many other authoritiea to the same purpose
might be cited from English and American re-
parti. VnlesB auch averments are required, ia
it not obrious that the boundaries between the
cliancerj and common law court* would be
tunken down, and that chancellors would find
tbeuaelTee, under billi for a discover; from so
Interested partj, engaged in the settlement Of
con tni Tellies, hf Evidence aliunde, which the
common law courts could have procured, under
the process of a suhpicna, in delaying proceed-
ings at law, hy pretenses that a discovery is
•anted, for the sake of justice, and in enjoin-
iag judgments, upon indellnite allegations of
the plaintilT having a knowledge of facts which
gave to a defendant an equity to be released;
though the defendant might have availed him-
self of the evidence of third persons to estab-
lish the same facts, in the progress of the
cause, or of the powers of chancery to pro-
cure them, bj a discovery, to assist the oourt
in deciding it, which last is the case now under
tonsideration.
The section of the statute, then, under which
[he Circuit Court entertained this bill and en-
joined the judgment, ahould be so construed
as to give the benefit of it to a borrower, only
in those eases in which a complainant seeking
for a discovery aver* that he ia unable to prove
the facta by other testitnony. There Is one
strong reason, too, for applying tbia rule to a
borrower seeking relief under this law; and it
la, that it permits him to make an appeal to the
eonscience of the lender upon terms more
favorable than be could have done in equity,
to relieve himself from an usurious contract,
before this statute was psased. The lender,
npon making the discovery, is to receive his
principal, without any interest; and is to pay
iOS*) 'oosts. This advantage given to the
borrower, must be viewed by a oourt of equity
in the nature of a penalty, upon the same prin-
ciple that other forfeitures, Imposed b^ statutes
against usury, are viewed as penalties, which
equity will not assist to enforce at all, much
1ms by any evidence aliunde. If the lender
denies the usury charged upon his oath, the
oath should decide the question before the
chancellor. If it be not so, equity will be con-
verted by the section Into an assistant for the
enforcement of a penalty, which has never
been it* province.
By limiting the operation of the section to a
denial upon the oath of the defendant, the
harmony of chancery jurisdiction to its civil
law original is preserved; ami surely it Is not
imrMsooable that a complainant's bill, seeking
ft discovery, for the want of all other testi-
nmj, ahould be not retained after the answer
baa denied the matter sought. So It was decid-
ed in this court, in the ease of Bussell v.
Clarke, 7 Cranch, TS, and the same position is
hid down by other courts. Ferguson v. Wal-
ters, 3 Bibb, 303; Nourse v. Gregory, 3 Litt.
STS; and in Uawkina's Executors v. Sumpter, 4
. 106.
operation of this anetlon k Jottlfied by Its let-
ter. I'ne worda "and if thereupon it shall ap-
pear, more than lawful interest was reserved,"
have a direct reference to the oath of the lend-
er denying the usury charged, and are exclusive
of evidence, aliunde, to establish it.
Such proof haa heretofore been only used to
advance the policy of statutes against usury in
courts of common law, as for the greater pur-
Kses of strict justice between borrowers and
iders In courts of equity. Unless a statute,
then, in so many worda, or by an inference
which doe* not admit of a doubt, commands
the courts of equity In Virginia to give relief
from usurious contracts, by evidence aliunde,
without requiring the borrower to pay principal
and interest, the law should not be so construed-
The great principles of equity, securing com-
plete justioe, should not be yielded to light in-
ferences or doubtful construction.
But the section under review should have a
strict construction as to the' relief intended to
be given by it to a borrower; l>ecBuae it is not
a law in furtherance of strict justice between
the borrower and lender. The former has by
it, upon tha discovery of the usury by the
lender, the use of the money without paying
the interest fixed by the law as a ffir compen-
sation for the loan of money. Strict justice re-
quires from the party claiming to be released
by efjuity, 'that he ahould do equity; [*S04
and in caaea of usury, relief has heretofore only
been given upon the payment of principal and
interest. Shall, then, a construction be given
to this section by which a borrower may in all
cases, even after judgment has been obtained
against him, resort to a court of equity in Vir-
ginia to establish his atatutory richt, by evi-
dence aliunde, to be relieved from the payment
of interest upon money of which he has had
the use. If he has such proof, let it be used in
a court of common law. to get under the stat-
ute still greater advantages from the lender; to
throw upon him all the forfeitures and penal-
ties of the act. This would be to advance the
policy of the law to the full extent of what it
ia intended to prohibit, and to embrace the
State in the forfeitures which may be recov-
ered. He should not be allowed to use it for
his own interest exclusively, in a court of
equity; by which a result follows far short of
those sanctions existing in the law to restrain
and to punish what it declares to be an offense.
It seems to us that thin section was intended
to give to a borrower relief from an uaurioua
contract, by an appeal to the conscience of the
lender for a discovery; when the former from
the want of all other testimony, is obliged to re-
fer his cause to the oath of his adversary in a
bill of discovery, and that oath decides the
question bfrfore the chancellor: and that it was
not intended to exclude the ordinary interfer-
ence of a court of equity, between borrowers
and lenders in usurious contracts, to enforce
the payment of the principal, and that interest,'
whicn the statute Itself fixes as a lair rate of
compensation for the loan of monr.y. The fact
of the Legislature having released the lender
from all other penalties in the act, except the
loss of interest, can make nothing against the
construction of the statute; for that is only the
eoosequenc* of the inability of ev.ry LeglsU-
Supreme Coubt of the UhitB) States.
lUd
tare hi thU country to compel k peraon to make
k diacover; bf which he maj' be BUbjected to
leeiil pains, penal tiee or forfeitures.
The construction now given to the section is
that which has been given to It by the Court
of Appeals in Virginia, in the case of Mark* v.
Morris, 2 Munf. 50T. The points decided in
that case, and that particularly whivh has been
under our consideration in this, have been
Sestioned by judges of the same court; but
e case has never been overruled. In our
opinion, from an examination of all the cases
Since in the Court of Appeals down to the case
of Fitzhugh V. Gordon, 2 Leigh, 62a, tha reason-
ing of the first IB not shaken.
We come now briefly to con^iider the question
BOB*] whether the complainant *can liave re-
lief fn equity, the tranaaction having been car-
ried Into judgment. We think he cannot. The
bill states the circnmNtaDces under which the
judgment was confessed. There was neither ac-
cident nor surprise. The plea of usury was
withdrawn, and the judgment confessed, in the
belief, by the defendants, that they might af-
terwards resort to a court of equity to prove
the usury; and upon the entry of the judgment
there is annejEpd a reservation In terms for a
resort to equity. That such reservetion iv]ls
made by any understanding with the counsel of
the plaintiff at law, is demed by him; and tlie
court had no authority to make It a part uf
the record, so as to give any benefit to the com-
plainants.
The right to resort to a court of equity for
relief under the statute to its full extent, exists
independently of any reservation of the court
of common law, when relief is asked in time.
The courts of common law can neither add to
nor take away from the right nor by any quali-
fication of their judgmenls, give parties any
right to be relieved from them in equity, ooo-
trary to its established principles.
We do not think, therefore, tha reservation
In this instance upon the record a matter of
any consequence. The questian is, can the
complainants have any relief in equity against
the judgment t The general rule is, that after
a verdict at law a party comes too late with a
Ull of discovery. Duncan v. Lyon, 3 Johns. Ch.
3SG; Ballone v. Brent, 1 Vern. 170. There muat
be a clear case of accident,
before equity will interfere.
Prothew t. Korman, 2 Swanat. 227, the Lord
Chancellor says; "It a defendant has a good
legal defense, nut the matter has not been tried
■t law, it becomes a serious question whether a
party who, being competent, does not choose to
defend himself at law, can come into equity and
change the jurisdiction. Consider the effect:
he might not have succeeded at law, but by
coming into equity he secures so much ad-
ditional time." In the same case the Chan-
eellor says: "Lord Thurlow waa very tenacious
of the doctrine that a party who bad an oppor-
tunity of a trial at law, and would not avail
himself of It, could not come here." Such now
is the established doctrine in England, and has
been for a longer time the doctrine in the Unit-
ad Btates. And the doctrine, as applied to a
ease for relief from usury, is that a defendant
aued at law on a contract alleged to be usuri-
ous, will not be entitled to a bill of discovery,
if he sufiers a verdict and judgment to be taken
against him; and espedally when he doea m
without making a defense at law. The case of
Thompson v. Berry and 'Van Buren, 3 ['BO*
Johns, Ch. 39S, Is one directly In point; meet-
ing the case before us also in this, that an in-
junction will not be granted against a judgment
where a party seeks a discovery of usury, and
claims a return of the excess beyond the legal
interest. The reason of the rule is, that tbt
proof of usury is a good defense at law; and
when it is in the knowledge of the defendant,
no satisfactory reason can be given why tbt
discovery waa not sought while the suit was
pending. It is our opinion, then, that whenever
a party seeking a discovery hud knowledge of
the facts during the pendency of a suit at law,
equity will not permit him to do so afterwudi
the injunctioQ ia dissolved.
This eauee e«me on to be beard on the tran-
script of the record from the Circuit Court of
the United States for the District of Columbia,
holden in and for the County of Alexandria,
and was argued by counsel; on consideration
whereof, it ia ordered, adjudged and decreed
by this court, that the decree of the said Cir-
cuit Court in this cause he, and the same ia
hereby reversed and annulled. And this court,
proceeding to render such decree as the aaid
Circuit Court ought to have rendered in the
premises, doth order, adjudge and decree, that
the order for a perpetual injunction be, Skud the
same ia hereby dissolved, and that the bill of
the complainants in this cause be, and the
same is hereby dismissed; and that this cause
be, and the same la hereby remanded to the
said Circuit Court, with directions to Uie aftid
court to carry this decree into eflect.
Mortgagee no claim on mortgagor's insurance-
mortgagee competent witness in suit againat
Insurers— construction of rule of insui-anoa
company — loss by negligence of f
misdescription.
a marteagee has a rlabt to claim the beneOt
polLcj. unaerwrltten for tbe mortgsceor on
LorUaica pioperlv, Id cbsp ot Ions hj Bre, It
e mortgagee h
tiUe Iban any attaer <
The mortgagee or
br Ore, Is a cumpeteu
sustained by tbe dealructlDn' of the property lo-
One at the fund amenta I rutct of an iDBuraae*
GOmpanj, iDsurlng agslaet Ion lij Ore, provided
that any persona Hniured austninlng a loan by tin
"ahall. ■■ soon as passible therea"— -"" ■
particular an account of tbelr
signed witb their own hands, as
s by I
B Ot'
'X
L. cd. B. 8. S3S.
Thi CoLDiiBU I^eu■AKcB CouPANr or Alkxakdiu t. Lawixiks.
/ the banil of «
_ jt conmrued in Mch loii." etc..
"laportiDB tti&t thcT ira KcquilnlHl wltb llie cti&T;
tu.: "■ud until such KflldaTlt iBd certlOcare are
pTMund. Ibe ton elalnied iball uot be payuble,"
ric Held, tb&t tbe mcds, "aa eoou la notiiillile,"
ODot be dnwD dowo to Di Cb* eonatruclion of llie
■tldcate. The true Inient
«llDie mpectluB lh<
Brocand wlltaln ■ ri
It would be a
ui^tloii
e time after tbe
'TbI t
oite, but tl
at tbe elauee or tbe cooteit ; ai it would
-~eil>l loqulrT. not the prtidui;lloa 0[ tbe cetllll-
■ ■■-' "■— poMlble diligence In provtni; II, 'the
Jt entitled to recelTe or to sue for tbe
lOM until tbe eertlQcate la obtained : tor It la a mn-
dltloD Drecedent to bla rlgbt □( action. Tbv lim.
iniie la, "and until auch aindatIC aod certlHrnte
are prodaced. the lOM claimed shall not be pOT.
able.'' And bealdea. In tbe body of tbe policy It la
ei^iteaily pr<i>:>led, "aucb loaa and dauiafrc as the
•uured shall be entitled to receive by virtue of tlie
pMlcT. ahall be paid vlthln ality days after uoike
and praol tbereol made by tb« asauii'd. In i-onfarin-
Itj to the eondltlopa ol tbe comiieny KuUJolned to
the polley." So that It la manlfpst that thp assuri^d
Hinia not be entitled to maintain any acllon unlll
ha had hiralibed all the prellmluar; pronfa : ao
that tbe delay la not Injurloua to the company, Ijut
Mlely to the aasured, by depriving blm of bla right
ta jndumpnt unlll It la procured:
In a formrr action aialust tbe same company, by
"■ e plalntm, on the aanie policy of 109i-
ertlflca
f tbe ninth f
mpllanc
with
to ibe
Oc tli_> .. „__ „ _, ,
bmnKht on the policy, and tbe <
In* ■ Jury, llpoa a writ of
»t the court below waa rereri
— .._ .'ard lor error in the
n by the Circuit Court to the Jury,
■ plolntllTa, on tbe mandate of tbe
M the inai, i_. ,
■apreTDe Court orderloK a venire [aclas de
maf^^^ Mminir •into the Circuit Court, dii
They Immediately pioiuted
ited to tbe 1 ,__,
preclae eonlormlty wltb tbe require
-'-- "■'- were of opinion t^-
der all tbeae farla and clrcumstaiK^a, tbe nnnpn
hilly accounted Tor. and that the proper eertlflcate
waa procured wllhla a reasonal>le time. Tbe Drat
eertlflcale waa procured shortly after tbe loss, and
sreaented to the company, which then made no
objeetlod to It. The fll>Jectloo to It was fltst token
at tbo trial In tbe Circuit Court In the former suit.
Tbe court were then at opinion Ihut the prevloue
conduct of the company amounted to evldpuce proper
to be left to tbe Jury, of a waiver o( any olileitlon
to the certiacale. Tbe court reverted the Judgment
the anDiinclatlon of tbat decl'ilOD. the new cerlifi-
este waa obtained. Tha aonp reduction, then, of
the proper eertlflcate waa occaaioncd. not by nuy
laches properly Imputable to the party, but by tbe
det«t, and of tbe mlatakan confidence placed by the
party In the company Itself.
Tbe declaloQ of thla court In the ease of Law-
"■"■■■' ce Company, 2 Pet-
the prlnclplea laid
preaentatlona by the
•rm'a Rep. 47. referred t
Whet
r tbe n
f the
will avoid tbe policy. Ooe of the t<
talDly a decltlve teal whel'-- -
>rest of the aa-
a real Infiuence
0 underwrite at
t a higher pre-
o tbe risk ; and
repreaentatlon
UlB wbclher. If the true state of the property or
tlU« had been known. It would have enbaaced the
prcmlnm. If It would, tbta the mlarepreaebtatlon
or concralmpnt is fetal to the policy.
In relation to Insuraneee atralnet Qre on land, tbe
JoctrlDC Been a to have prevailed, for a great length
•f tlBie. Ituit they cover ioaees occasloued by the
■el« fanit and neitllgence of the aasured and hie
•erranta, naafTected by any Craad or design.
A loaa by Are. aecaalDneil by tba mere fanll and
BrcllceDcw at tha aaanred, or hia aertanla or agenta.
and wllbout fraud Or deaign, la a lasa within tha
policy, upon tbe general ground tbat the fire la the
proilmale cause of tha loaa: and alao upon tha
ground that tbe eipreaa eiceptiotia In pollctea
eral terms' of sucb pollclea.
The decision of this court Id 3 Peters' s Kep. ZB,
fi3. 50. aa to the effect of a mladeecrlptlon ot prop-
erty inaured, on the liability of Iniurera agalnat
loaa by are. re-aOrmed.
IK error to the Circuit Court of the United
Slnlea for the Diatriet of Colutnbia tn tha
Uounty of Alexandria.
At January Term, li<29, a auit between the
aame partica waa before thia court on a writ ol
error. E Petere, 25. It was an action ftiatl-
tuted by Lawrrence, the aurrivor of Lawrence
A Poindexter, on a policy of insurance againat
Gre, to recover from the Columbia Inaurance
Company oi Alexandria, the amount of a loaa
auataineil by them by the deetructton of a mill
by fire, alleged to have been duly inaured by
tbe defendanta. A verdict and judgment had
been rendered *in favor of the plaintiff; ['BOQ
and an the csae coming into thia court, the
judgment of the Circuit Court of the County
□f Alpxandria was revereed, and the caae was
remanded to that court with directions to
award a venire fnciaa de novo. The mandate
of thia court stated that the Circuit Court erred
in instructing the jury that the intereat of the
asGured in the property insured is such aa is de-
scribed in the original offer for insurance and in
the policy; and also in this, that the said Cir-
cuit Court erred in this, in the opinion to the
jury, that the evidence was sufficient to be left
to them, from which they might infer that
the defendants waived tbe objections to the cet-
tiflcate and other preliminary proof required b7
the ninth lule annexed to the policy.
On the coming in of the mandate (November
Sth, 1830), the plaintiS in the Circuit Court
discontinued the suit.
In Beptember, 1S3I, Joaeph W. I^wrence,
survivor of Lawrence t Poindexter, inatituted
another suit against the same defendants, oa
the same policy of insurance; and after various
pteadings and demurrers, etc., the case waa
tried by a jury in October, 1834, and a verdict
and judgment entered for the plaintiff.
The defendants excepted to the charge of thd
court, in two bills of exceptions, and they pros-
ecuted this writ of error.
The case brought tip by thia writ of error
waa in all respects the same with that which
was before the court in 1629. with the excep-
tions fully stated Jn the opinion of the court.
The case was argued by Mr, Jonea for tha
plaintiffa in error, and by Mr. Swanii and Mr.
Beiiy for the defendant.
Mr. Justice Story delivered the opinion of
the court:
This is a writ of error to the Circuit Court
of the District of Columbia for the County of
Alexandria.
The original action waa assumpsit, brought
by the defendant in error againat the insurance
company, upon a policy of insurance, againat
Arc underwritten by tbe company on the 9th of
April, 1823, whereby the company insured for
the defendant In error, and hia partner, Poin-
dexter (aince deceased), ^,000 on their stone
mill, called the Elba Mill, four atoriM high.
33 ftia
BUPBEUI COUBT or THE UHTtBt STATIB.
IBM
■Itnated on an iiland about a mile from Fred-
tricksburg, Virginia. The declaration averred
K total I0B8 bf fire, on the Uth of Febru-
ary, 1B24.
Tbere wai a former suit brought on the saine
BIO'J policy, against the 'companj, in which
the plaintiff obtained a verdiot and Jndgmeat.
That judgment was brought before thig court
on a writ of error, in January Term, 1829, and
the judgment nas reversed. The eauae will be
found fully reported, with the ground* of the
Kvcraal, in the second volume of Mr. Peters's
Reports. 2 Feters'a Rep. 23, et seq. One of
the grounds of that reversal vas the omission,
before the suit was commenced, to procure a
certiQiate from a ma^strate, in compliance
with the ninth fundamental article of the rules
of the company, upon which the policy was
made, and to which those rulei were annexed,
as a part of the conditions of the contract. On
the 14th of February, 1829 (after the reversal,
and the reason thereof were made known),
being five years after the loss, a new certificate
was obtained from Mr. Hooe, a magistrate of
the county in which the mill was situated. The
original suit was afterwards discontinued in the
Circuit Court, on the Gth of November, 1830.
Thi! present suit was afterwards commenced in
September, 1831.
In the court below, various pleaa were inter-
posed by the company, upon some of which
there were issues to the country; and others,
which were special, eventuated in demurrers.
Upon the former, a verdict was at the trial
found for the plaintiff; and upon the latter (as
well as upon the verdict) judgment was ulti-
mately pronounced in favor of the plaintiff.
Bills of exceptions were also taken at the trial
upon various points of law raised in argument,
•nd the correctness of the ruling of these
points, raised both upon the special pleadings
and upon the trial of the issues of fact, are up-
on the present writ of error brought before us
for revision. All the leading facts of the case,
except the new certificate of Hooe before men-
tioned, and the testimony of Joseph Howard
(which will hereafter be a subject of comment,
upon the inquiry as to his competency), are
precisely the Esme as were before us upon the
writ of error in 1829. And as the testimony of
Howard, if admissible, does not in our opinion
at all vary the operation and pressure of the
point of law in the ease, we deem it unnecea-
•ary to do more than to refer to the case, as
reported in Peters's Reports, for all the material
facts, It may be proper, however, to state that
it wss then decided that there was no waiver
by the company of their right to the prelimi-
nary proofs, required by the ninth article of
their rules, and that the assured had an insur-
able interest.
of the artificial and complicated form
611*] 'which It comes before the court: and
Instead of wandering through the maixe of spe-
cial pleadings and exceptions with which the
merits of the case are incumbered, and under
which, indeed, they seem almost buried, we
shall consider the material questions presented
by the record, and afterwards briefly apply the
decisions on them to the solution of the points
raised b; the pleading* and exception!.
The Srst question naturaUf presented ti^
whether Joseph Howard was a competent wit*
neas in the suit. The original defendants (tb*
insurance company) objected to his competen-
cy, and the abjection was overruled, and hia
testimony was admitted by the court. Tb*
facts relied on to establish his Incompetency
were these: Howard and Lawrence (tne plain-
tiffs) had, in September, 1813, purchased the
premises of W. and G. Winchester, and in the
conveyance it was declared that it was subject
to the payment of the annual rent of £S0,
and also to the payment of 96,fl9fi, the balanea
of the purchase money due to the grantora,
agreeably to certain notes given therefor by
Howard and Lawrence; and that the same sum
of <6,e96, and the accruing interest, should be a
lien on the premises, in the same manner as it
a mortgage had been executed therefor. How-
ard and I.a«'rencc, in May, 1814, executed &
deed of trust to W. J. Roberts, on the premise*,
to secure certain indorsers upon their notes at
the Bank of Virginia, and the Farmers' Bank
at Fredericksburg. In July, 1818, Howard
made an agreement with Idwrence to convey
the premises to him, at the price of 130,000; to
which amount Lawrence was to procure a re-
lease of debts due from Howard and Lawrence,
and then Howard was to make a conveyance of
his moiety of the premises to Lawrence, sub'
ject to the liens given to the banks (hereinafter
mentioned), and to Winchester; and also the
ground rent, etc. Lawrence, in November,
1822, entered into a contract with Poindexler,
by which the latter became interested in *
moiety of the premises, and became liable tu
the payment of a moiety of the debts due by
Howard and Lawrence to the Bank of Virginia
and the Farmers' Bank, at the Fredericksburg
branches, for which Howard and lAwrence had
executed the deed of trust to Roberts, and also
for the debt due to Winchester, for which
there was • mortgage or lien on the premises.
I^wrence A, Poindexter, in February, 1S24,
assigned the present policy on the premiaea to
Roberts, by an instrument which state* no pur-
pose, but merely says, "that for value received,
they do assign the policy to Roberts;" to whom
the said property has been conveyed, in trust,
for certain purpose*. It may be Inferred that
the object 'was to subject the rights [*51t
and interest secured by the policy to the trust.
It i* admitted that all these bank debts o(
Howard and Lawrence havr lifeu discliarged,
and all the liability to all their indorsers, ex-
cept John Mundell, deceased; who, as executor,
has, by a release under seal, released Howard
from all liability, by reason of the indorae-
ments of his testator. It is suggested that thia
release is inoperative in point of law, becsHiae
it is not competent for an executor to rcleao*
luch a liability to his testator. We are of a
different opinion, if the transaction was boM
fide and for a sufficient consideration, and there
is no evidence to disprove either. So that the
deed of trust has become completely funrtna
ofTicto; and Howard, as to the bank debta, ba*
no interest whatsoever, to be affected by th»
assignment of the policy.
The debt to the Winchesters of tS,605 yet
remains due and unpaid; and as to thia, it la
insisted that there i* a remaining Intereat ia
Howard, who i* personally liable to the pay-
FeWM t*.
m
i OoLOHBiA iRBtrSAiTcc OouPAiTT oT AuXANDtu T. LAWtzma
51*
■eat of It; tnd tk« procenb of the policy. If
neovered, will go, pro tuito, In diictmrgB of
that debt. Assuming thkt Howard f« peraonal-
\f liable for that debt, ■till, tmleu the cndttwa
bare not merely a lien on tho premlsea, but a
lien on the policy tor it, HowaM ha* no inter-
at which renders him inoompetent in thii mlt.
Now, we know of do priucipl« of law or of
equitj bj which a mortgagM hai a right
to claim the benefit of a policy underwritten
tor tbe mortgageor on the mortgaged prop-
•rtj. In ease of a loat bj Are. It Is not at-
tached, or an incident to hie mortgage. It is
atriettj a personal contract for the benefit of
the mortgageor, to which the mortgagee haa no
more title than any other creditor. Lord Chan-
oellor King, in Lynch *. DalEcll, 3 Bro. Pari.
Caaea, 497, S. C; 2 Marshall on InsuranM, book
4, ch. 4, p. 803, took notice of this distinction,
Miying, '^heM policies arc not insurances of th*
■peei&e things (goods) mentioned to be insured,
nor do snch insurances attach to the realty, or
Id any manner go with the same, as incident,
by any conveyance or alignment; but they
only special agreementa with the persons
■UTcd against such loss or damage aj they may
sustain." So that in this view we are of opir
ion that Howard was a competent witness, an
Eroperly admitted by the court below. Wo
sve nlready said that we do not perceive that
the testimony given by Howard, changes In any
material respect the legal posture of the case.
The flrat exception of the insurance company
was, therefore, properly overruled.
SIS*] 'The next question which arises is as
to the proper construction of the ninth article
of the fundamental rules of the Insurance com-
pany. That article is in the following terms:
9. "All persons assured by this company, sus-
taining any loss or damage by fire, are forth-
with to give notice to the company; and, as
won as possible thereafter, deliver in as par-
tScnlar an account of the loss or damage, signed
with their own hands, aa the nature of the case
will admit of, and make proof of the tame by
their oath or affirmation, and by their books of
accounts, or proper vouchers, as shall be rea-
sonably required: and shall procure a certiflcate
Dnder the hand of a magistrate or a sworn no-
tary of the town or county in which the fire
happened, not concerned in such loss, directly
or indirectly. Importing that they are ac-
quainted with the character and circumstances
of the person or persons insured; and do know,
or verily believe, that he, she, or they, realty
and by misfortune, without any kind of fraud
or avil practice, liave sustained by such fire
toaa or damage to the amount therein men-
tioned: and, until such affidavit and eertiflcate
are produced, the loas claimed shall not be
payable: also, if there appears any fraud, the
claimant shall forfeit his claim to restitution
or payment by virtue of his policy."
It is contended on the pan of the conipany,
Irst, that the oertiflcate from a magistrate,
here provided for. Is to be procured "as soon as
poaaible," and that these words in the preced-
mg dauae are to be drawn down and construed
to Iielong to the latter clause, so as to read,
"and shait, u soon as possible, procure a cer-
tiflcate. etc." And, second, if this construction
be not adopted, still that the eertiflcate must
be procured within a leawnable timej and'
• Ued.
that the procurement of It after five years from
the time of the loss, Is not a reasonabls time.
We are of opinion that the words "aa soon
as poaaible," cannot be drawn down to fix the
construction of the clause respecting the eer-
tiflcata We think the true intent and meaning
of it is that the certificate must be procured
within a reasonable time after the loss. It
would be a most inconvenient oourse to adopt
a different construction, not required by the
terms of the clause of the context; as it would
make the material inquiry, not the productioa
of the certificate, but the possible diligence in
proving it. The assured is not entitled to re-
ceive or to sue for the loss until the certiflcata
is obtained) for it is a condition precedent to
his right of action. The language is, "And
until such affidavit and certiflcate are pro-
duced, 'the loss claimed shall not be [*614
payable." And t>esideB, In the body of th*
policy It !• expressly provided, "such loss and
damage aa the assured shall be entitled to re-
ceive by virtue of the policy, shall be paid
within sixty daya after notice and proof there-
of made by the assured in conformity to the
conditions of the company subjoined to the
policy." So that It is manifest that the as-
sured would not be entitled to maintain any
action until he had furnished all the prelimi-
nary proofs; so that the delay is not injurious
to the com^ny, but solely to the asniired, by
depriving him of his right to judgment until
it Is procured.
The next inquiry is whether the new cer-
tificate was procured within a reasonable time.
In the ordinary course of things upon a trial
before the jury, this would be a mixed question
of fact and law; of law, where all the facta
and eircumstaliees were admitted or estab-
lished; of fact, where these circumstanc
upon a full display of all the facts s
cumstances in the special pleadings. We are
of opinion that, under all these facts and cir-
cumstances, the nonproduetlon of the proper
certificate at an earlier period is fuU^ r -
first certiflcate was procured shortly after tlia
loss, and presented to the company, which
then made no objection to it. Tne objection
to it was first taken at the trial in the Circuit
Court in the former suit. The court were thcK
of opinion that the previons conduct of the
company amounted to evidence, proper to be
left to the jury, of a waiver of any objection to
the eertiflcate. This court reversed the judg-
ment on that point; and almost contemporan-
eously with the annunciation of that decision,
the new certiflcate was obtained. The non-
production, then, at the proper certiflcate was
occasioned, not, by any lacbes properly Im-
putable to the party, but by the omission of
the company to give notice of the defect, and
of the mistaken confldenee placed by the party
the company Itself.
If the company had eontemplated the obleo-
on, it would have been but ordinary fair
been Immediately supplied. As It was, t
oompany, onintentionaUy it may be, by theli
cu
SlIPBUlB CoDKT cat IBM UnITB) tJlATKS.
IStt
•ilence, misled him. The delaj to procure the
•orrect certificate was not unreasonabie. Tliia
view of tlie matter disposes of ttie fourth plea.
ai5»] 'That ple» is substantially defectiva.
in averring that the ninth article of ths funda-
mental rules required the certiQcate to be pro-
cured "as soon as possible," after the loss, and
i* a legal misconstruction of that article; and
Ib, in other respects, objectionable, as attempt-
ing to put double matters in issue. The repll-
eation set forth all the circumstances which
establish due diligence in procuring the certiS-
eate within a reasonable time; and if it be bad,
for the want of a proper traverse, and, for any
Other cause set forth in the special demurrer,
it leads us back to the first error, viz., a bad
plea to a good declaration. This view of the
matter also disposes of the first, second and
third instructions asked of the court in the
second bill of exceptions, founded upon the
•upposed bar of the statute of limitations, and
the certificate not having been procured in a
reasonable time.
The next question which arises is whether
there lias been in (he proposal for the insurance
K misrepresentation of the interests of the as-
■urcd in the property insured; and if there has
b«en, whether if that misrepresentation is ma-
terial to the risk, and would have enhanced
the premium, it avoided the policy. The pro-
posal for insurance describes the property and
interest thus: "What premium will you ask
to insure the fotlovring propertj', belonginj^ to
lAwrencF & Poindeiter, far one year, against
loss or damage by fire, on their stone mill, four
stories high, covered with wood, situate, etc."
It was decided by the court, in the former case
in 2 Peters's Rep. 47, etc.. that the real interest
existing in Lawrence & Poindexter, at the time
of the proposal, was not such as is described
therein. It waa further decided by the court,
in the same case, that a misrepresentation of
the interest of the assured, which is material
to the risk, would avoid the policy. The lan-
guage of the court on that occasion was: "The
contract for insurance is one in which the
underwriten generally act on the representa-
tion of the assured, and that representation,
ought, consequently, to be fair, and to omit
nothing which it is material for the under-
writers to know. It may not be necessary that
the person requiring insurance should state
every encumbrance on his property, which it
might be required of him to state if it waa
offered for sale. But fair dealing requires that
he should state everything which might in-
fluence, and probably would influence the mind
of the underwriter in forming or declining the
contract, etc. Generally speaking, insurances
against fire are made in the confidence that the
assured will use all the precautions to avoid
the calamity insured against, which would be
ftlfi*] suggested by his interest. 'The extent
of this interest must always influence the
underwriter in taking or rejecting the risk or
In estimating the premium. So far as it may
influence him in these respects, it ought to be
communicated to him. Underwriters do not
rely so much upon the priticijiles as on the
interest of the assured; and it would seem,
therefore, to be alwaya material that they
ahould know how far this interest is engaged
In guarding the property from loas."
SIS
We think this maaoning entirely MtlB-
factory, and founded in the tme exposition flf
the contract of insurance. Whenever the na-
ture of this interest would have, or might havf
a real influence upon the underwriter, eithsi
not to underwrite at all, or not to underwrits
except at a higher premium, it must be deemed
material to the risk; and if so, the misrepre-
sentation or concealment of it wilt avoid thi
policy. One of the tests, and certainly a de-
cisive teat, whether a misreprciientation or con-
cealment is material to the risk, is to ascertain
whether, if the true state of the property or
title had been known, it would have enhanced
the premium. If it would, then the misrepre-
sentation or concealment is fatal to the policy.
Now, at the trial of the present case, the
counsel for the insurance company, in their
second bill of exceptions, prayed the court to
instruct the jury that if they "Snd from the
evidence that a full disclosure of the actual
title of the insured in the premises, as it ex-
isted at the time, was material to, and would
have considerably increased the estimate and
value of the risk nnd premium; and that no
other disclosure of the same waa made than ti
aforesaid (i. e., in the olTer of insurance), then
there was a material concealment, which avoid*
the policy." The court being divided in opin-
ion, did not give this instruction to the jury.
and it was consequently refused. In our opin-
ion, upon the principles already stated, it ought
to have been given, and the refusal was an er-
ror for which the judgment must be reversed
But the court rightly rejected the instructions
upon the same subject aaked in the first bill Of
exceptions, which proceeded upon the ground
that if there was any misrepresentation of the
interest of the assured, that alone, whether ma-
terial or not to the risk, would avoid the policy.
The instruction asked upon the same subject,
in the second bill of exceptions, is still more
objectionable, as it called upon the court to
declare to the jury, as matter of law, that the
nondisclosure of the true nature and extent of
the title and interest of the assured in the
premises, waa a concealment of circumstance*
materially affecting the risk, which avoided
the policy; 'thus taking from the jury I'SII
the proper examination of the fact whether it
was material to the risk or not.
The next question is whether a loss by lira,
occasioned by the fault end negligence of tbo
assured, their servants and agents, but without
fraud or design on their part, is a loss for
which the underwriters are liable. In regard ta
marine insurances, this waa formerly a quea-
tion much vexed in the English and American
courts. But In England the point was com-
pletely settled in Busk v. The Royal Exchang*
Insurance Company, 2 Bam. & Aid. Rep. &,
upon the general ground that causa proxima,
non remota, spectatur; and, therefore, that a
loss whose proximate cause it one of the enn*
merated risks in the policy, Is chargeable t«
the underwriters; although the remote caua*
may be traced to the negligence of the mastw
and mariners. Although in the policy, in that
case, the risk of the barratry wa« also sasumed
by the underwriters, yet it is manifest thnt
the opinion of the court proceeded upon tka
broad and general ground. The same aoctriB*
waa afterwards affirmed in Walker v. Maittand,
Peter* 1*.
ISM
l^HK CoLUMBU ImtiiAirci Compart or iixTKimnk w.
RT
S Bftrn. A AM. 171, ud Bishop «. PentUnd, 7
Bam. ft Ores. 219, and fs now dpemml incontro-
TCrtiblf establiBhed. The same doctrine was
tally discussed and sdoptecl by this court in the
caoe of The Fatapsco InmiraDc« Company v.
Coulter, 3 Peters's Hep. 222.
In relation to insurances igainit fire on land,
the doctrine seems to have prevailed for a great
length of time that thej cover losaea occasioned
hj the mere faults and negligence of the as-
sured and his servants, unaffected by any fraud
or design. In the arguments of counsel on
marine policies, it has constantly been taken
for granted, both in England and America;'
and although there ia no case directly on the
Boint decided by the highest authority, yet
Lord Chief Justice Glbbs, at Nisi Priua, held
that if a acrvant by negligence sets a house
on Bre, the loss is recoverable on ■ policy
■gainst fire. Indeed, if such losaea were not
within such policies, the indemnity against
of tbis aort may be traced back to some negll-
Snce, alight or otherwise, of the members of
milies. The language of Are policies, too,
abundantly justifles this conclusion upon the
oommon principles of interpretation. The
underwriters agree to pay "all loss or damsRe"
which the assured may sustain by fire
518*] "upon the property insnred; but they
except from this general liability any loss or
damage sustained by fire "that may happen or
take place in consequence of any invasion,
dTil commotion, riot, or any military usurpa-
tion:" and the fundamental rules also exclude
losses by earthquakes and hurricanes. The ax-
eeption, then, may fairly he construed to leave
all other losses, except fraudulent losses, with-
in the reach of the policy, upon the known
majcim of law that an exception expressly
earred out of a general clause, leaves all other
eases within the scope of the clause. Fraudu-
lent losses are necessarily excepted upon princi-
ples of general policy and morals; for no man
c«n be permitted, in a court of justice, to al-
lege hia own turpitude as a ground of recovery
in ■ suit. And. Indeed, the ninth article of
the fnndamenta,] rules ia manifestly intended
to aMcnre the company against losses "by frand
or evil practice." We are, then, of opinion that
• loss by Ore, occasioned by the mere fault and
negligence of the assured, or his servants or
agents, and without fraud or design, is a loss
within the policy, upon the general ground that
the Are is the proximate cause of the loss; and
•lao upon the ground that the express excep-
tions in policies against Are, leave this within
the acope of the general terms of such policies.
The sixth plea is, therefore, bad in substance.
The next question which arisea, is upon the
•apposed misdescription of the premises in the
proposal for insurance, and the effect of that
miadescription. It was decided by thia court
In the former caae in 2 Feters's Hep, 26, 63, 56,
that the misdescription of the premises (not
frandnlently made), to be such as would vitiate
the policy, must, upon the trae construction of
the fundamental rulee of the eompany, not only
be material to and increaaing the risk, hut such
1. Sea Bosk V. BoTsl Exchange Insurance Cam-
paoT, Z Bam. A Aid. Rep. B2 ; SDd Grim t. The
FkcMilx iDauranea Company, IS Johns. Reii. 451.
as would occasion the insurance to be made at
a lower premium than would otherwise ha
demanded. If, therefore, the misdescription
were material to the risk, and would increase
it, but yet would not reduce the premium. It
would not avoid the policy. And that the
points as to the misdencription, as well as the
effect thereof upon the premium, were mat'iers
of fart for the consideration of the jury. Wa
are entirely satisfied that this is the true con-
struction of the terms and intent of the funda.
mental rules. Vpon this ground, we are of
opinion that the fifth plea is bed in substance.
any reference to the premium. The last in-
struction asked by the counsel of the company
In the bill of exceptions, propounds the point
in a somewhat •dilferent form. It is, (*51»
"that if the jury find, from the evidence, that
the conntruction of the building, etc., was
grossly misrepresented In the offer and policy,
and instead of being a building with walls of
stone, and with a covering or roof only of
wood; the walls themselves were partly of
wood, and that such actual construction of the
building greatly increased the risk beyond
what the Insurers would have Incurred, If the
buildin," had truly answered the description in
the aaid offer and policy; then the jury ought
to presume that the building was charged in
the said policy at a lower premium than would
otherwise have been demanded by the defend-
ants, so as to bring the case within the opera-
tion of the last clause of the first of the said
fundamental rules." If this instruction had
merely asked that the jury might presume, or
wore at liberty to presume, etc.. upon the facts
and circumstances so stated, there would not
have been any just objection to it. But it goes
much further, and insists that the jury "ought
to presume," etc.; which, in truth, is remov-
ing the whole matter of fact from the Jury, and
compelling them to decide the point as a con-
clusive presumption of law. This, we are of
opinion, would have been wholly unjustifiable
on the pert of the court. The instruction called
upon the court to decide, not upon a conclusive
presumption of law, but upon a mere presump-
tion of fact; a matter which exclusively be-
longed to the jury to consider and resolve. It
is directly in the face of the decision in 2
Peters's Rep, 56, 60, upon this very point. It
Is obvious, from the very terms of the rules,
that cases may exist, in the same class of hax-
arda, of very dilTercnt degrees of risk, from
the nature and qualities of the thing insured;
and yet may not increase or diminish the
premium. Whether the misdescription would
have any effect upon the premium must, there-
fore, from the very nature of the inquiry, be
a matter of fact upon all the circumstances of
each particular case. The instruction prayed
was. therefore, properly rejected.
The judgment of the Circuit Court must be
reversed for the error already stated, and the
cause remanded, with directions to the court to
award a venire facias de novo.
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United States for the District of Columbia,
holden in and for tha County of Alexandria,
II*
BvFMWta Conn ow thi tTmrxD States.
iiit
Knd wnii krsned hj courmI ; an consldenitinn '
whereof, it is the oplalou ol this court th&t
1120*] 'there waa error in the Circuit Court in
refusing to give to the jurf the following in-
■truction, In the second bill of exceptions men-
tioned, on the prnjer of the counsel for the
B«id insurance conipEiny, vii.: "If the jury
find, from the evidence, that a full discloBure of
the RctukI title of the insured in the premises,
»« It existed *t the time, was iDRterial to and
would have considerably increased the estimate
and value of the risk and premium, and that
no other disclosure of the same was mnde than
as aforesaid, then there was a material conceal-
ment, which avoids the policy." It ii there-
fore considered and adjudf^d by this court,
that for the error aforesaid the judgment afore-
said be, aod hereby is reversed; and that the
same be remanded to the Circuit Court, with
directions to award a venire facia* de novo.
sai*] •THOIUS BTANLE7, Appellant,
JOHN QADSBY, Alexander U'Intyre, and
George Coner, Executors of James Walker,
Deceased, and James Rhodei.
Application for lnjuncti<
I to prevent sale of
- ptee to secure pay-
.t DBurious interest.
A Bled a bill li
latere
iHiv
not been
repaid, and ISe
lllll SDUEbt DO
ury
from t
<■ d
rrodaot.
>ut a
erred
IU«
pla
uLd
be able
»e It
by
competent
dlsm
d tbe bill.
He
a, tbat
the
decree c
r the
Clrcu
»
This ■■ Bubetantiallj an appltcBtloi
rom usury ; and tbe consequence o( g
I would be reller upon termi
rule or euulti so fully n^cognl
he murl Id the nae of Urowi
t be wbo sceka ibe aid of equi
--- — -" "-n 'the'
uiiB Dill. lULS IB esHeuiiai to every su
Hon In ■ court of equity, first tn >iv,
Jurisdiction. iDd to enable tl
thinks p['.ioer tn do sn. to r^a
principal
wltb tbe
prlDclpal and legal loten
iption
The ;
empi
II a fry
Blab I
ring In hla bill bis
prIodpBl and Intcri
tbe payment of
ilict BOUBbt in such cases it an ex-
the illegal usury. The whole In-
earlDK. Is to eetabllab thai [act. and
to that eitent. Whenever a com-
iply wltb the rule, bj nver-
ON appeal from the Circuit Court of the Unit-
ed States for the District of Columbia in
the County of Washington.
This was a bill Hied m the Circuit Court, by
the appellant, against the executors of James
Waliier, praying for «n injunction on a tnia-
tee, to prevent his proceeding to sell certaia
real estate, cunveycd to him to secure the pay-
ment of a sum of money loaned to the com-
plainant, and for relief agninat an alleged
osurious contract.
TIm Circuit Court
• 1*
The caM h fatly atated In the opintoa of
the court.
The esse was submitted to the court witboot
argument by Mr. Swann for the appellanta, a«d
by Mr. Coze for the appellees.
Ur. Juatlea Wayne delivered tha opinion of
the court;
This is an appeal from the Circuit Court of
the United States for the District of ColumbU,
and for the County of Washington.
'The complainant alleges that he ['SIS
borrowed a sum of money from James Wallcer,
at usurious interest, and that to secure tbe
payment of it he executed a deed of trust npoa
Ms house and lot in Washington to the defend-
ant, James Hhodes; in which he covenanted, if
default should be made in the repayment of
the loan at the stlpalated time, that the tnu-
tee, Bhodes, shall, upon the request of said
James Wallcer, or his executors, administraton
or assigns, sell the premises to the highest Ud-
der, and convey the same to a purchaser in
fee-simple; notice of the sate being given, of
the time of sale, in the way mentioned in tbe
deed of trust. He further complains that the
executors of Walker have directed Hhodes to
Eroceed to a snle of the house and lot; that he
ad advertised them for sale, and he admits
that he had not repaid the money borrowed.
The complainant seeks no discovery of the
usury from the defendant, but avers that he
will be able to prove it by competent testi-
mony, and waives all penalties, to which he
may be entitled, to arise out of this tram-
action. He prays tor an injunction to pre-
vent the sale of the property by the trustee,
until the question of usury shall be decided at
law; but doea not ask the court to aid in any
way as auxiliary to any case pending at law.
This, then, is aubatnntially an application
for relief from usury; and the consequence of
granting; the injunction would be relief upon
terms at variance with the rule of equity, so
fully recognited at this term of the court, in
the case of Brown t. Swann et al., that he wba
seeks the aid of eijuity, to be relieved from
usury, must do equity by paying the princip«l
and legal interest upon the money borrowed.
The complainant does not offer to do so in bis
bill. This is essential to every such applica-
tion In a court of emiity, firnt, to give (he
court jurisdiction, and to enable the Chancel-
lor, if he thinks proper to do so, to require the
pavment of principal and interest before the
heurins of the cause. The relief sought in such
cases Fa an exemption from the illegal uaurf.
The whole inquiry on the hearing is to estab-
lish that fact, and to give relief to that extent.
Whenever, then, a complainant does not eum-
ply with the rule, by averring in his bill his
readiness or willingness to pay prlndpal and
interest, he can have no standing in a court rf
equity.
The decree of the Circuit Court la affirmsd.
Thia cause came on to be heard on tbe traa-
script of the record 'from the CSrvnit |'SSl
Court of the United States for the District of
Columbia, holden in and for the County af
Washington, and was argued by eounaeli M
consideration whereof, it U decreed and ordered
PM«m It.
Dnni T. Item n al.
I9 tbh ecnirt thkt the d«crra of the k
Court in tbia cauie b^ uid tli« wne
kdiriuad with coata.
THOMAS REID, Jun., et «;
.-cordias de«dB (or landa Id Teouesi
1 the SUiti ol TeDDciue*.
Otf a «>rtif1ntta of dlviaion of opinion of the
Judges of the Circuit Court of the United
StaLifS uf \V est Tenneasee.
This case wa« BUbmitted to the oourt, on a.
printed argument, b; Mr. Leigh.
Mr. Justice MXean delivered th« opinion of
the court:
The plalntlfTi m thii case brought an action
of ejectment against the defendants in the Cir-
cuit Court for the District of West Tennessee,
and on the trial certain questions were made to
the court, in which the opinions of the judges
were opposed; and these cjuestions have been
certified to this court for their decipion.
To iUBtain their action, the plaintiffs offered
io evidence, a grant for five thousand acres of
land t«i Stokely Donelsoo, from the State of
North Carolina, dftted the Tth dajr of April,
1700.
This grant waa duljr authenticated under the
aeal of the State of North Caroline and the
certificate of the governor; the certificate was
registered in Giles County, in the State of
TennesBFe, within which the land it situated,
on the lOth of December, ISIO. And both the
Sant and certilicate appear to have been reg-
tered in the same county on the 2d of June,
1817.
The pTaintilTs then offered to read a deed for
the same land from Stokely Donelson to John
Hook, of the State of Virginia, dated the 24tb
of March, 1T91. On the 2eth of March, 1799,
thia deed waa acknowledged by the grantor be-
fore David Campbell, one of the judges of the
Bute of Tennessee; and on the 16th of April,
1709, it was regiat«red in the County of David-
It waa proved that when thia deed was ez-
aented and registered, and until the fall of
1BI8. the Indian title to the land was not ex-
tinguished; and that the County of Giles was
not established until 1809; but the law organis-
ing the county did not take effect until Janu-
ary, 1810.
tt5*] 'Upon theee facts waa this deed of-
fered by the plaintiffs and objected to by the
• IbCd.
defendants, on the grotud that it had not been
duly acknowledged and registered; and upon
this question the opinions of the judges were
opposed; and this constitutes the first point foi
exaruinalion and decision by this court.
In the State of Tennessee, until a deed Is
duly proved and registered, the fee does not
pass to the grantee; and to this rule may, in
some degree, be attributed the numerous legis-
lative acts of the State to cover defective cases
of proof imA registration of deeds.
By the Act of 171S, adopted bf Tenneiaee
from North Carolina, it is provided that "^o
conveyance or bill of sale for lands, in what
manner or form soever drawn, shall be good
and available in law, unless the same shall be
acknowledged bj* the vendor, or proved by one
or more evidences, upon oath, and registered by
the public register of the county where the
land lieth; and all deeds so done and executed,
sljnll be valid, and pass estates," ete.
By the Act of the 30th of September, I7H,
it was provided, "that all deeds and mesne
conveyances of lands, tenements and heredita-
ments, not already registered, acknowledged
or proved, shall and may, within two years
after the passing of this act, be acknowledged
l>y the grantor or proved by one or more of the
subscribing witnesses, and registered in the
county where the land lies," etc.
On the 27th of October, 1797, this act was
extended until the termination of the next
General Assembly of the State; and before the
expiration of this extension, the deed under
conaideration was proved and registered in tbe
County of Davidson. There is no objection as
to the proof of the deed, b; the arknowlede-
ment of the grantor before Judge Campbell;
but it is admitted there was no law which
authorised its registration in the County of
Davidson, and unless such registration has been
■anctioued by a subsequent law, the deed is not
valid.
It is contended that this registration is made
good by the third section of the Act of the 23d
of November, 1809; which provides "that all
deeds for the absolute conveyance of any real
estate within this Slate, io which the Indian
title was not extinguished, at the time of the
execution of such deed, and at the time of the
registration of the same, as hereinafter men-
'ioned, which deed shall have been proved by
one or more of the subscribing witnesses there-
to, in any court of record, or before any judge
of the superior courts In the State, or shall
have been so proved before any court of record
or any 'judge of a court or mayor of a I'6>6
city out of this State, and shall have been
registered In any county in this State, within
the time required for the probate and registra-
tion of deeds; such probste and registration
shall be sul^cient tn enlillc such deed or deeds
to be read in evidence in any court within this
State: and shall also be sufficient to entitle
such deed or deeds to reoistrBtion In the county
or counties where raid land may lie, when the
Indian title is extinguislied thereto."
That I lie deed to Hook is embraced by the
provisions in this statute, in two particulars,
IB clrnr. It cnIN for land to which the Indian
title wss nnt F^1i^^-lli'''Jl'd. when the deed was
proved and registered, or, indeed, until nine or
■ I*
SvPtniE Coon w the Umitd Btatss.
ten rears After tTiIa act was iwMed. And It
aupcara that ft wan regintered in the Countv
of DavidBOn, "wilhin the time required for the
probate and registration of doeds." In theae
respeeta, the deed comes within the statute.
But it is objected tliat the statute makes pro-
vision for Guch deeds only as "have tieen
proved by one or more of the subscribing wit-
nesses thereto, in any court of record, or l)e-
fore any judge of the superior courta of the
Ktate," and that the deed to Rooil was not
proved by one or more of the subscribing wit-
nesses, hut by the acimowlcdgment of th"
grantor. That Judge Campbell, who took the
aeknowled)^ent, had power to take it, is
not contested; nor that he had power to take
the proof by the Gubwribing witnesses: but.
as the proof was not made b; one or more of
the aubaeribing witnesses, it is contended the
probate was not such as contemplated by the
statute, and, of course, that the deed is not
within it.
This constniclion the connael for the plain-
tiffs contend is an extremely technical one, and
ought not to be given to a remedial statute.
That tlie object of the Legislature was to pro-
vide for deeds whirh had been duly proved and
registered in any county in the State, callinu
for lands covered by the Indian title, and not
within any organized county. And that such
■ construction should be given to the statute
aa shall elTectuate the intentions of the I.egis-
That this was the desi^ of the statute
seems to be probable, and it shoutd be so eon-
stmed aa to produce this cITect, unicGs the lan-
guage of the act shall forbid it.
A deed embraced by the statute is made evi-
dence; that is, evidence of title, and is Rood
njniinst all other subsequent conveyances from
the name grantor, unless it should be in a case
587*1 where the •grantee had failed to record
the deed in the county where the land lies.
within a reasonable time after the extinguish-
ment of the Indian title, and against a pur-
diaser without notice.
Tlie counsel insist that this statute will ad-
mit of being read, "which deeds shall have been
proved by one or more of the stibaeribing wit-
nesses thereto, in any court of record;" or,
"which sliall have been acknowledged before
any judge of the superior courts in the State."
This is not the import of the words, nor does
It accord with a grammatical construction of
them. The mode of proof required is by one
or more of the subscribing witnesses to the
deed; and applies as well to the proof taken
before the "judge of the superior courta" as
before any court of record. And the correct
and grammatical reading of the sentence is,
"whirti deeds shall have been proved by one
or more of the subscribing witnesses thereto
in any court of record;" or, "which shall have
lieen proved by one or more of the subscribing
witnesses thereto, before any judge of the su-
perior courts in the State."
This, it must be admitted, when we consider
the mischief the law was probably intended to
remedy, is a somewhat technical construction
of the act; and cases may he found where
eourts have construed a statute most liberally
to effectuate tbe remedji but when the Ikn-
•S«
guage of the act ii nplidt, there Is eiwt
danger tn departing from the words used, t»
effect to the law which may be sup-
posed to have been designed by the Legislature.
Where the language of the act ja not dear, and
is of doubtful construction, a court may well
look at every part of the statute, aa its (itls,
and the mischief intended to be remedied In
■?arr7ing it into eSect. But It It not for the
court to say, where the language of the stat-
ute is clear, that it shall be so oonstrued as to
embrace cases, because no good reason can b«
u.isigned why they were excluded from its pro-
We are unable to say why the benefits of
this statute were given to those who held nnder
deeds proved by the subscribing witnesses, and
withheld from those whose deeds were proved
liy the acknowledgment_of the grantor. Inmost
tosses, if not in all, proof by acknowledgment
would he deemed more satisfactory than by
witnesses: but the Legislature having made a
distinction between the cases — whether it was
intentional or not, reasonable or unreasonat>l*
— the court are Iwjund by the clearly expressed
language of the act.
It is unnecessary to follow the train of ar^
nient used by the counsel for the plaintiffs op
the subject, as. in tlte opinicm of the
•court, the provisions of the Act of 1R21 [•i»»
apply to this case. In the latter part of thP
iccond section of this act, it is provided thit
"in all cases where a deed of conveyance ol
land has l>een acknowledged licfore a judge oi
the Inte superior courts of law and equity, or
Infore any court of record in this State, and
since registered in any register's office in this
Stale; or where the privy examination o( a
feme covert, through whom the title is derived,
lias been taken before any court of record and
certified, and such deed registered in the proper
county, such deed, or an authenticated copy
thereof, may be read in evidence, and shall M
deemed suillcicnt to pass the title; provided,
that no person claiming by a conveyance under
the same title, shall be affected thereby."
These provisions embrace two descriptions
of cases. Tiie first one, which it is supposed
covers the deed to Hook, is where a deed has
been acknowledged before a Judge and ro-
istered in any register's office in the State; and
the other, where the privy examinstion of a
feme covert, through whom the title is deriv^
has been taken before a court of record and
-„ _ person claiming under the same tills-
It muat be admitted that the language of
thia section does not so clearly express the in-
tention of the Legislature as it might hsv*
done, but it is susceptible of the construetkis
that the deed which is required to be registered
in the proper county is the deed that convfJ
the title of the feme covert. To extend tliii
requirement, by eonslrnction, to the dred fir''
named, would make the provision contradic-
tory, if not absurd.
The first deed, if registered in any rMis'er''
office in the State, ia made evidence of title;
and it could hardly be required in the sams
sentence thot the same deed should have beea
recorded without an; reference to the tiiM
ISU
Danit V. 1
'b the proper eountj," and thla followed by
% proviiion thmt "no perBon claiming bj a eOQ'
Teyance under the unie title, eh«'T be afTeeted
thereby." It may be tliat the circumdtanceB
under which this law waa pasaed, if known.
Might indnce us. If we were at liberty to be in-
Ihienced by them, to give a different constme-
tlon to this provision; but being alone guided
by the languags of the SRction, we tiiink this
CMutructioii (loeb no violence to the words, but
gives to Ihem their fair Import.
It was proved that the deed to Hook covered
the land in controveray, and we think it was
properly admitted as evidence of title.
6«»*] The evidence on the v*rt of the plain-
tiffs betns closed, the defendiinta offered a deed
from Stokelj Donelson to James Conner, for
the sane land, dated the 8th of Denember, 1797.
On the 23d of August, 180Q, thie deed was
proved in Rowan County, North Carolina, by
one of the iubseribing witnessea, before fVanc&
Locke, one of the judges of the superior courts,
eb^, of the State. Thia deed waa regiatered in
the County of Giles, on the-. 3d of June, 1817.
And the defendants, to prove that they were
Snrchasere of the land in controversy under
antes Conner, offered in eridence a deed from
Conner to Reid and Butler, for four thousand
Ave huDdred acres, dated the 1st of Jane, 1882;
also, aeveral other deeds from the same person,
for smaller tracts of land witfiin the patent of
Donelson, all of which deeds were proved and
roistered In Giles County. These deeds were
•11 signed by Henry W. M. Conner, agent snd
attorney in fact for James Conner, but no evi-
dence of his authority to act as attorney was
And the defendants examine John Bomet,
a witness, who stated that Thomas Reid, Jus.,
Thomas Butler, William Collins, etc, were liv-
iag on the traet in fxmtroveray in April, IBBl ;
and other tenants were proved to be in pos
session of different paita of the land, and fur
different periods of time. And the witness
proved that several of the tenants purchased
irom Conner. And similar facts wore proved
by James Klmbro, another witness. Aad on
the question whether the deed from Stokely
Dsneleon to James Conner was regularly proved
and n^istered, and whether the svidenoe con-
tained fa the deposition of John Bomet and
jamea Kinbro conduced to show the defend-
ants pnrcliaaed or claimed under Conner, the
jodgea were divided in opinion.
Wc will first examine as to the regular pros!
and registration of the deed from Donelson to
By the Art of the 30th of November, 1807,
all deeds executed ont of the State were re-
quired to be acknowledged by the grantor, or
proved by two or more subscribing witnesses,
and registered within two years; snd deeds
wfaleli had been executed, but not regiatered,
wera required to be regiatered within a year
a/t^ the 1st day of January following. And
aflenrards, th; Art of 22d of April, 1809, con
ttaned the above provision for the registration
of deeda.
Thia law was Id force when the deed from
DoBsIaon to Conner was attempted to be proved
to Noftit Osrolina; but as that proof was made
BS**] *bj Mia witness only, it was not regu-
lar; and, of courue, did not antborin the regia-
trstloo of the deed. And it is believed that no
Isw has been since paased which gives effect to
BUcli a probate taken out of tbe State.
The Act of 1S22, which provides for deeda
lliat had been executed out of the State, and
wliich shall have been proved by one or more
of the aiibacribing witnesses, were required to
be certified by the clerk of the court, etc., and
Ihik deed has not been so certified. The pro-
bate not having Ijeen regular at the time It
was taken, nor made so by any subsequent ^w,
it follows that the registration of this deed in
the County of Giles can give no effect to it. It
cannot be received as evidence of title; and
whether it couid be considered as giving to the
tenant the b^nelit of the statute of limitationa,
it is not necesxary to determine, as the point
is not raised. The deeda which purport to nave
been executed by Henry W. U. Conner, as
agent and attorney in fact for James Conner,
cannot be received as evidence for any purpose
in tlie absence of the proper authority by the
agent. And it <k clear that the evidence of
Bornet and Kitnbro does not, under the clr-
cumstancea of this case, in tbe language of the
adjourned questioiij conduce to show the de-
fendants purcha)-ed under Conner.
This evidence, to avail the defendants under
the statute, must be by deed, and not by
parol. The tenant who relies upon tlie statute
of litnttstions, in virtue of hia own right as a
purchaser, must claim hy deed. Hia possession
under anulhiir, who claims by deed, may be in-
sistpd on under the statute to protect thi'
rights of the grantee. But Conner is not made
defendant in this case; and if his deed were
admisaihie to suslain the plea of the statute,
the defense must be msde for hia benefit, and
not tbe benefit of the tenants. The purchasers
from Conner do not show a deed, or any other
instrument in writing whii^h is evidence of their
purchase, nor do they connect themselves wIlli
any title which gives to them the benefit of
the statute, so far as the case is brought be-
fore us by tbe adjourned questions. The deed
from Gallaher, under which Reed claims, is noi
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United States for the District of West
Tennessee, and on the points and questions on
which the judges of the Raid Circuit Court were
oppascd in opinion, and which were certified
*to this court for its opinion, agreeably f'SSI
to the act of Congress in such case msde and
provided, and was arKiied by rounsel; on con-
siderstion whereof, this court is of opinion, on
the first question so certified, that the deed
from Donelson to Hook should be admitted as
evidence of title, being proved and registered
according to the lews of Tennessee: and, on
the second question so certified, it is the opin-
ion of thia court that the deed from Stokely
Diinelson to J.imea Conner comot be received
as evidence, and that tbe evidence of Bomet
and Kimbi-o does not, under the circumstances
of the case, conduce to show thst the defend-
ants purchased under Conner; whereupon, It
is ordered and adjudged by this court that It
be so certified to tlie said Circuit Court-
ftSl
SuPBRiK Covn or tub Dtnm BiA-m.
5»9'] *GEOKGE PETER, Executor of David
Peter, Deceupd, The Bank of Columbia and
The Bank of the United States, Appcllatite,
JAMES B. BEVERLY, et ax., and William
Ramsay et ux., et al., Heire of David Fet«r,
Charge of debti npon portions of estate by wtll
^^xccutiott of power by surviTor — one e«-
Mutor not liable for acta of co-executor—
land directed to be eold regarded in equity as
Conalty — payment of debt by note— •!-
ince for family expensea.
David Peter, of tbe District or Colninbli
will, declared l" - '- "- --
proceeds of ill
edDMtloa of bli
intention tliat all the
tilB estate siiould be veeti'd In his
pport and far tbe maintenance and
for the pi ,. — -, - -- -.
clause In bis will; "I wish all mf debts (a be bb
ipeedllT paid ai posalblc. for which piiri
aire that the tract of land on which D'
togelher with all personal properl; thei
tw Bold and applied to chat purpose : and
that, as soon as sales csn "at clTpcted, sc
my city property as may be oeccssnry to eToel that
object, lie appointed tils wife, Johns, and (ieorcc
Peter his ei''cutors. The whale of tbe pel -'
ring
. ._j for the debts, aad received' tbi
notes of their testator. This was dooe aodfT Chi
underelandlQK that tbe armnEeineiiC was (o con
tlDUe as lone ii tbe hanks should be wllllna to In-
dulRS tbe estate, or until the executors coufd make
salea of the estnte (or the pavment of tbe dr'---
lo the aettlement of the accounts of the ei
~e Orphans' Court, the notes of the
tetor I
ved fro
Surcbase monev, au
le balance, rila nc
tbe
and j(!ren bis
arged
( of
ejectment was bronchi for the recovery of (he
tate, which hai not tirvn decided. Georttc Pp
survived the other executors, aad he was cnl
ipoD br tbe bank* to sell the real estate o( DavM
'eter directed to be sold to pay tbe debta Hm
hldren of navld Peter obtained a perpetaal la-
..wnctlon In the Circuit Court to prevent tbe aaie
of the city proprpty o( their father for the pay-
1 of the debtH. alleclUE that no debts were am,
he Dotea of the executoi-s had been received Iv
banks (or the debu of tbe testator, and tb^
charged them in their accounta with tbe State:
also alleging negligence In not collecting tbe
nee due (or (he sale of "the Dutle (arm," aud
that the executors wen liable as (or a devasUvIt
for tbe money which went Into the hands ot tbelt
mother for tbe nuppnrt of th« Omilty and the edu
cation of the chlldrro, and It was denied Chat tbe
Cower to sell the estate o( tbe testator aurrlved
3 the surviving executor. George I'etcr. The
court held that the direction of the wilt of David
Peter to sell a portion of his real estate for nsy-
ment o[ his debts, created a power coupled wltk
an Interest that survives. Thnt the surviving M-
ecntor tg. by niMrpRsary ImpHcoilon. the person au-
thorised to execute that power and fuinil that
truac. That the debt due tbe banks has not bees
eitlngulabed hy the notes substituted by the eie-
eutora 'as renewals In the l^ank, or the [•flSS
pstste of tbe testator Id any way dlachari:ed Iron
the payment of tbe debt. That the executors aie
not cnargeabte with negligence or mlaappllcs-
tloo of the personal estate that ouBht to render
then
.1 aatlBtactloB at Cbi
Tbe perpetua
Dslble f
r tbe
these delits. and
■ QuId b - ' ■
I tbe creaitors of tbe c
Instesd ot the banks, and may resort to the
tund to satisfy tbe debt.
The tesutor had a right unquestionably, si
as resneclcd his children, to rliari;e the pnymr
sonsl, as he might tElnk ' ' - - - —
'. for the
. _ _ ._ _ _. . . ,;iit to
control his will Is that respert. And bi
tbouKbt proper to constitute his widow '
tenance and education of Ms
vesting in -her an unlimited dli
ipect. so far as the prorrrds o( I
thing applied bf her for thi
■oprlated to that
It li
Tild he char
with s
e that
Y further than he Is f'linwn to have l-*n knowlnii
d assenting at the time f such devastavit or
NoTi.^ — Ab to when bill, note or check Is pav-
msnt, see note to Harris v. Jaboslon. 3 Cranch,
Eiecutors and admlnlstrstors, when liable for
One executor la not chargeable tor a devastavit
of tail co-executor, and Is cTinrgi-ahle only (or the
SBseta which have come to bis own bands. Cro. 1^.
818; Btr, 20; 4 Dcaaus. 80, 02, IfiP ; 5 Corn. 10.
aO: 11 Johns. IS. 21; G Johns. Cb. 203: B Hick.
lOS; 2 Molloy'B Cb, 18S.
Out he Is answerable (or tbe acta of his co-exec-
gence, or when he delivers over assets, or makes
iayment directly to his co-eiecuCoc. T East. 246:
Molloy, 186.
Where there are two eiecators. eaeb has a right
to receive the debts snd BBsets of the leatstor, and
eacb Is answerable for what be receives. They are
not liable to each other, but each Is liable to the
receive*. Esch executor has a rl^ht to receive the
.■ having received funds, cennot exoner
blmself from reaponslblllty and ahltt the trust
his co-executor by passing over to him the si
received. Edmonds v. Crenshaw, 14 Pet. H
United States v. Rose. 2 CrsDch C. C. G6T,
He la
still liable
or t
dmund
V. Cre
14 1'e
, IBO.
bond is
Joint.
ne ad-
mlola
lile
LIdrtc
dale V. R
Hrock.
1E»!
Greeo
V. Hnnber
ry. 2
"bV
ock
Marsh
4<i;t
cutors and
lie f«r
each
nee. «w
gross
nefillgence.
'u<
One
potiBlble fo
r tbe s
pa rate
x'rs ot
Evans
1 Ds-
Desnu
^-. — . mil v. navi„ .
Towne v. Amidoo, 20 rick. SSS : Urw
. E Pick. D6.
I are not acCDUUtabie to distributees
bis co-executor. If he did h
■ Ilelra. I
B for tbe devsntsTlt Ol
I of It. Sutherland V. Brush, T Johns Cb. S2.
■ result of the eases seem to be that where, by
t done by one executor, sny part ot the estate
. to tbe hands of the co-executor, tbe rormcr
ic SDswerable for the latter In tbe same maa-
■ tor s stranger wbom ho had enabled to n-
MM
Prm *r Au V. Beveblt et al
Nlappllaittoii of th* aiieli : and mrrplj ptrnlt-
tlnc bli or^Mcutor to poeurM tbt iKBcti. witbout
MtDK rnrtbet and tODcurrLDic In tbr ■piillcBdon of
&Mn. don Dot TeDdBr bim tiiswenblf for the re-
Mlpla ot hi* eo-CHimtar. Kicb •
onlj for bla own acta. sdiI what h<
plla. nnlEas he Jolna ta tbt direction and mla-
appMcatloD of the ancta.
It la a wetlf([tl«d ral( In chancerr.
hen land la directed t<
nsMer It that apeclcs of property
Kr^
iBIo wblch It la dtrerted to be cooverted.
Tbe KcDenl principle of the commoa law, aa laid
dok-n br Lord Coke, and skDctloned bj man; Ju-
dicial declslona, la that when tbe power (Itcd to
aeTcral peraona la ■ mere naked power to aeil, not
coupled with an lnt*rea«. II moat ba eieeuled ta
all. and doea not miTlre. But where tbe power u
coapled with an lotereat It maj be eieculed bf
Ibe aurrlTor. It la not a power coupled with an
lalereat In cxeentora, beeauae tber may derive a
personal beoeflt from tbe de*Iae. For a tmst will
■arrive. thonKh no war beopltclal to tbe (nietre.
It la tbe poa-~<Blon of a legal eatate. or a right In
tbe aobject ovit which the power la to be eierclBcd.
tbat makea the Inlerent In queitlon, And wben en
rarmlor, jtnardlan, or olhfr trustee, te Invested
with the rests and proIltK of land lor tbe aale or
luc of another. It la Htlll an auiborltr coupled with
The courts of America have generally applied to
tbe conatructlon of iuch powers the prpat and lesd-
Ina prlnclpla wblch applies tbe_ construction of
t« in Ihn will watrai
testator Intended, for
%%:
.uKbt a
- u( eq..
r the
the
loul their aid to uphold tbe pom . .
of carrj'iDg Into execution tbe Inlcnllon of tbi
Utor, SDd preventing tbe vonseriuenres that migoi
rcanlt f ron an extinction of tbe power : and where
there Is > trust, cbartted upon the ciecutori In tba
direction clveo to them In the disposition of the
proceeds. It is tbe aettled doctrine ot courts of
Aancer* tbat the trnst docs not become extinct bf
tbe death of one of tbe truateea. It will be contln-
oed In the anrvlvora, and not be permlKed. In an;
event, to fall for the want of a trnslee.
It Is a aettled doctrine that tba acceptanca of a
levotlable note for an antecedent debt will not
ailniciilah tbe debt, unlese It Is eipreutr aKreed
Tba auditor to H-hom tbe accounts ot the eieca-
tora were referred, made an esllmste of the ei-
peoaes o( tbe family of Urs. Peter tor twelve
I, without having called Fi
' vsQchera far all
tbe Items of the cmendlturei. The court held the
allowanre of ttl.OOO for the eipenaes of the famllj
for twelve Tears, must rertainlT be a verr modcnite
prnper sulijrcl_of Inquiry for the
pensea ot tbe famllf. It could bard'j be expected
that a cemilsr account woold be kept: and espe-
dsllT. nndvr the larse discretion given by tbe teS'
tator In his will In ralatlon ta tbe maintenance of
his tamllj.
The amoiinta paid by tbe executors for the cur-
tails and discounta on the nod's ruonlni; in iliv
banka. were properl; allowed to Ibelr credIL These
were debts due irom the eatnte, sod whatever pay
menta were made were for and on account of the
APPEAL from the Circuit Court of tba
United States for tlie District of Coltimbift
In the County of Waxhin^tim.
Th« appelleea fileit Umir bill In the court b«
low to enjoin s sale of certain real estiite, being
lots in Washinpton. which had belonged to
Dnvid Peter, deceased ; which tale waa about
to be made by George Peter, his iurvivinn ex-
ecutor, (or the payment nf debts due from hia
estate to the other appelliinta.
The following is a copy of hia will:
In the name of Gcd, Amen, I, David Peter,
of Georgetown and District of Columbia, do
hereby mt.ke and establish Ibis my last will
and testament, revoking all heretofore made by
1. It !■ my intention Hint the proceed* of all
my estate •ball be vested in my dear wife Sarah
Peter, for tbe maintenance and education of
my. childreD.
8. I wish all my debts to be aa speedily paid
as possible, for which ptirnme J desire that the
tract of land on which Dulin lives, together
with all Tiersnnal property thereon, may be sold
and applied to that purpose; and in aid of that,
ks ntiQii as sales can be elfected, to much of my
!tty property as may be necessary to efTect
that object.
■3. I desire tbat the comer lot on [*5SS
Bridge and Congret* street* shall be given te
my son William, and the corner lot on Watei
and High strerls to my son Hamilton, and the
One executor la not llabl* for tba devaatai
another Joint executor, whare he never bad
control or possession of the funds. Sparhav
aving OL
> tha bands „
tbcm, both are liable (or the waste. I(
give a Joint bond for fnltbful admlnlv
oauoB, Baeb 1* llahle for the acta of the other. lb.
Wliers one of the defendants, sn executor, con-
ttacted tar tbe aale of resl estate, not necessary (or
th* payment of debta. and afterwards, upon aopll-
catkm to the court for a conflrmatlon or the ssle,
he was Joined by the eiecntrlx wbo tbought she
was only joining pro forma. Held, that i^e was
Ixmnd to the devisees tor the devastavit ot her co-
cucntor. bcr acts being concurrent with his.
lews, UcMoIlen-s Bn. R. 410.
it necessarily liable tor escb oth-
ers aris. or mpoDBlble tor tbe money wblch comes
I* each atber^ hand*. Aa a general rule each ei-
K«r Is answerable for no more than he receive*,
nlmore v. Fennlmore, 2 Qreen't Ch. 202.
Wber* two Joint siecutors sold a tract ot land
'- ' — -J their tesUlor, In pursuance of the
d took frotn the purchaser
chaae money, and It was
it tbat any dsbts due tram
Gzecnton are ui
<ted by the debts of
.p"::s"j;!
sstenta to the
weie equally responsible to tbe
der tbe will to the pro'^ds of I)
Lehman. 3 Ired. Eq. DIM.
One of several auoiinistrstors wbo sstei
delivery, by his co-admlQlatiiLliirE, ot Ibe iiiyteLs to
the next of kin. before Ibe psvinenl of di'lits. la
guilty of devasUvlt. UcNnlr v. Itagland, 1 Uev.
One executor Is not responsible (or the devasta
vlt of hi* co^xerutor. If be did not know of. or as-
sent to It. at the time. I.swrence v. Ijtivrence.
Lltt Bel. Ca*. 12S ; In re Liavia and I.acy. M
Dally Beg. (N. Y.) No. TT ; 8. C. 4 Kedf. (N. X.)
One I
embeiilement of t .- ._. -,
ogent. Brown's Accounting, 10 Abb. I>r. N. 8.
Where an ciecator, by his negligence, aoffers his
he has the means of preventlnn It. by proper care,
he is liable to the bcnrnclnrles for tbe waste.
Adair V. Brimmer. 74 N. Y. 639.
lixeculora by joining In a bond, witb sutaly, for
the fsllhful pertoroiance ot thelt trnit. become
lolntlv liable as principals to Indemnify the aurety,
who has been subjected for Ibe dctaull ot One of
them. Bsbcock v. Uul<l>ard, 2 Conn. 036.
SuPXBWC Coun Off the UnrBt SrAni.
im
(toralioDae and lot adjoining the last-ntimed
Oorii«r, devJEed to 1117 ion Hamilton, to my
Tounceat son Jamps.
4. I desire that no appraisement or Taluation
•hatl be had of any part of the property a.t-
tftched to my dwelling-houte.
5. I desire that my sons shall receive as good
•dneations ae the country will alTord, and my
daughters the best the place can furnish ; and
I desire that in the general distribution of the
residue of my estate on the division between
my sons and daughters, my sons may receive
in the proportion of live as to three.
I constitute and appoint my dear wife Sarah
Peter, Captain Georije Peter, Uonnrd H. Johns,
my executrix and executors of this my last will
and testament.
In witness whereof, I have here hereunto set
my hand knd aeat this 30th day of November,
1812. David Peter, [l. b.]
Tlie will was executed in the presence of
They charged in their bill that George Peter
was about to sell certain real estate of the tea-
tator, whose heirs and devisees they are, for
the payment of debts alleged to be due to the
Bank of Columbia and to the Bank of the
United States, the said debts having been as-
signed to him : that a very large real and per-
Bonal estate came to the hands of the executors
of said David Peter, and that it thpy had used
due and reasonable diligence in respect to the
trust confided in them by the said will, and had
properly applied the assets arising from the
Bales of the real and personal estate of aaid
David, in a lawful course of adniiniatration, all
tlie debts of the said David would have been
fully paid, without any further application to
the real estate to raise money for that purpose.
They chargcil them with having received
moneys which thev have not accounted for;
that they sold tlie land in Maryland, mentioned
in the will, and received about one half the
Curchase monp;)-, and that the whole ought to
«ve been received, it the executors had used
due dilligence. The state that the executors
have settled ac^unts in the Orphan's Court
which they had exhibitPd, whereby it appeared
that thev have overpaid the personal estate
more than 212.000; and they contended that if
ftsa*] "by the neglect of the 'executors they
have not received and applied tlie whole of the
purchase money of the land sold, to indemnify
and re-lmburse rhem for the advances made to-
wards the paym'nt of the debts, they, the eoni'
rilainants ought not to be affected by such neg-
igence." They deny "that there is any debt
due to the baniis, or any other debt whntso-
over, tor the payment of which it is npcessary,
proper, or lawful for the said George Peter to
make sale of the said city lots." Tbey prayed
for injunction and general relief.
The answer of George Peter stated that he
waa the brother of the te.^tator, and that of the
other executors appointed by his will, one was
hit widow, and the other Leonard K, Johns,
her brother I thitt at the death of the testator
in 1812, he resiiled in Georgetown, and in 1816
removed to the xiuntry, in Maryland, where he
has ever since resided; that although be con-
sented to qualify as executor, he did not deem
it necessary that he should interfere in tha man-
amnent or aettlement of the eatat* with the
U4
widow and her brother; and that except la at-
tending to a farm and the stock thereon, and ■
lew inconsiderable tenementa in Montgomeiy
County, Maryland, which were near his own
property, he did not so interfere; that belter-
ing Mr. Johns to be fully competent, and thai
he would attend to the business in the way best
calculated to promote the intereat of his sister
and her children, he left It to them to seUls
the estate, and collect and dispose of the pro-
ceeds thereof, and provide for the aupport and
education of the family as they might think
That all this waa well known to the complain-
ant Beverly, who married the oldest daughter
of tbe testator in I81Q, and who and hia wifs
lived with her mother, till within a year or two
of her death, and he exhibited a letter of said
Beverly to prove this.
He stated that he had nothing to do with the
settlement of accounts in the Orphan's Court,
"further than that it was explained to him to
he necessary in order to comply with the rules
of the banks, and thus to continue the debts.
nnd save tbe property from sacrifice by a aale,
to put tn by way of renewal the notes of the
executors for those of the testator, and that the
accounts should be settled in the Orphan's
Court, so as to show those debts in the banks,
thus paid by the executors; they having sub-
stituted their own notes, and that this arranje-
ment should continue as long ae the banks
would be willing to indulge the estate, or un-
til the executors should be able to make sales
for the payment of said debts; and he aven
that this arrangement was explained and un-
derstood, and assented to by the said *ex- ['SIT
ecutors and said banks, and he presumes was
explained to the Orphan's Court."
That this arrangement was well understood
by Beverly, the widow, and all the childien,
who were old enough to understand anything
of their affairs; waa often talked of by the
complainants, Beverly and Ramsay, who alwaj*
spoke of the estate as liable to tbe banks; and
he exhibits numerous letters from Beverij,
showing his knowledge of and acquiescence In
it, and shows that said Beverly was, for a con-
siderable time, acting as agent for the estate,
under the authority of the executors, and pay-
ing discounts on these substituted notes to tbe
banks out of tbe renta of the estate, and sane-
times from partial sales of lots, and at oth^
times attempting to make sales for the purpose
of paying interest to the said banka. He ad-
mits the sale of the land, called Dulin'a in the
will, to George Magruder; that he paid part of
the money, was sued and became insolvent, and
that an ejectment was brought to recover the
land, that it might be resold; that the eject-
ment was removed to the Court of Appeals of
Maryland, where he believes it is still pending;
that if there was any neglect or delay in n-
covering tbia land, it was tbe neglect of the
complainant Beverly, who undertook to attoil
to it. being then agent for the estate, who aii»
employed counsel to file a bill in obanceiy !■
Maryland for a reaale of the land.
The defendant, under these eircumstaiMMi
considering this business in the hands andu-
der the care of complainant, did not auppoM fl
necessary for him to interfere ir " "- -'—'•-
that ha nceived 1
Prm R u. T. terntx n al.
Sff
Itooi the fkrm in Hkryland, which fas ftlwajg
■ant to Mrs. Peter or Mr. Johas; and which,
with the other motley thej received, he believea
were fKithfull; applied in pajing the debts ami
nipporting and educating the children. He
knows that great ejpcnaes were incurred in tliis
way: that the familj continued to be Bupported
in the way thej had been accustomed t^ live,
and that the income of the estate, which had
greatly diminished, must have been inaufHcient
for these purposeg; that rents had ^eatly
fallen, and most ot the city property was un-
t reductive, and the taxes were considerable,
'nder these circumstances, the eiecutors exer-
cised their discretiun, honestly and fairly, in
withholding the city properly from forced
sales at verj low prices ; and became responsi-
ble to the banks, who consented to the arrange-
ment made to save the estnte from sacrifice-
He avers that considerable advances were made
by the executors, particularly by himaelf and
5S8'J *Johna, for the payment of detjts, and
the necesaary support and education of the
He exhibits statements with his answer,
ahowing what, vpon the lowEst eatimatea. must
have been the annual expenses for maintaining
tha family and educating the children, and
what waB the annual inccme of the estate,
showing its great inadequacy to meet those ob-
jects.
He contends that under the arrangement
with the banks, with the perfect underatnnding
of the complainant, the estnU remained liable
to the banks; but that if this were not so, yet
if the executors had made themaelvea liable,
they would have an undoubted right to resort
ia the estate for their indemnity or re-imburae-
uient, and might use and apply this right for
the benefit of the banks, to whom the said debts
are still due.
The answer of the banks refers to the an-
swer of the surviving executor, for the facts
stated as to ttic arrangement between the exec-
utors and the bank, which they aver wa« en-
tered into to save the estate of testator from
•aerlfiee, and to continue the accommodation;
and that the executors and the bank, and the
Bgenti of the executors, one of whom was the
complainant Beverly, always so understood it,
and looked to the trust estate as still liable to
the banks. Tlicy exhibit statements showing
the situation of these debts at the death of the
testator, and the various renewals by the execu-
tors afterwards, with the paymenta made by
them aad their agents, and the balance now
An amended hilt was filed, calling for on oo-
eount of another sum of money alleged to have
been received by the executora, or some of
them; and charging, more particularly, negli-
gence in the executors, in not suing the indors-
era on the notes ot George Magruder, the pur-
chaser of Dulin'a farm, in time, and the conse-
quent loaa of the balance of the purchase money
bj such neglect.
To this amended bill the surviving executor
answered, stating hi* knowledge and belief as
to tl>e further sum charged to have been re-
etlred and unaccounted for by the executors:
and he denies, as before, the negligence im-
pnUd to the executora, and avers, if there was
uy negligence it woa that of Baverl; the coa-
• Ii.«d.
plainant, who, being tntereatsd fat the eatate,
and being a lawyer, undertook to attend to the
recovery of the balance of the purchase mone^i
that the indorsers were in very doubtful cir-
cumstances; that the land was looked upon bv
all interested as a sullicient security for the bal
ance *of the purchase money, and that [*SS9
the counsel employed In recovering the balance
of the purchase money advised a resort to a
resale of the land as the best remeJy to recover
said balance; that for this purpose an eject-
ment was brought, and a bill in chancery filed
in Maryland, under the direction and superin-
tendence of said Beverly; and that if any de-
lay or negligence occurred in the prnaecution
of these suits, it was caused by said Bnverly.
On the coming in of this answer, the cause
was referred to the auditor, to make a report
and account, and take depositions, ete.
The following report was made by the au-
"This cause having been referred to the
auditor, with directioEis to take and report an
account of all sums received by the e.>:ecuiors
from the real and personal estate of David Pe-
ter deceased, and of the sums paid by Lhi»n,
etc., and to take depositions and report all evi-
dence and testimony by him taken, the auditor,
after having notified the parties, proceeded to
examine the accounts and vouchers of the ex-
ecutors, and the several statements made by tne
counsel of the complainants and defendants,
and now begs leave of this honourable court to
"That he has examined the several stat«-
menta made by the executors with the Orphan's
Court, and has extracted therefrom Uie several
sums received and paid by them. In making
the statement now submitted, the auditor bo*
omitted the charges made by the executors, and
for which they obtained credit in their settle-
ment with that court for payments stated to
have been by them made M the Dank of Co-
lumbia and the Union Bank of Georgetown,
because it does not appear that these debts
were, at that time, paid fay them,
"When David Peter died, he was largely In-
debted to these banks upon indorsed notrs, dis-
counted in them. A proposition w;ls made by
the executors and acceded to by tbe banks to
prevent these notes from lying under protest,
to substitute notes to be drawn by Mrs. Sarah
Peter, executrix, and indorsed by Leonard H.
John* and George Peter, executors- Tbeoe
notes of David Peter were retired by this sub-
stitution, and passed as oredita to the executors
in the Orphan's Court as paid, when in truth
and in fact they were not paid. Whether the
hank by this arrangement released the estate of
David Peter or not, the auditor does not under-
take to determine. In the account with tbe
Orphan's Court the executors are charged with
the amount of the inventory of the personal
estate, both in the District of Columbia and In
Maryland; in the present statement these
charges are 'omitted. As far as any [*B40
proceeds ot the personal estate came into their
hands, they are charged in this audit, but they
are not charged with what the widow and heirs
retained in their own hands, and for their own
use; the object being to ascertain whether the
execntors are indebted to the estate, or the es-
UU to them. It will tM seen that by an a«-
»2»
SopuHE CooiT or TBI Unitd StATia.
ISM
count Btated hj the eoimael for the hein, knd
annexpri to the nllditor's atateirent, that he hu
charged the executors with 120,250, being the
amount of sale of land to Gaorge Magmder, It
appears froro tlie papers tliat the first payment
for thU land, amounting to $G,B!)5.0S, and in-
tcrext thereafter, in all SB,000, is all that has
ever been puid or received hy the executora on
that accoimt; the balance has not been paid,
nnder the plea by the representative of Magru-
drr that the will of David Peter did not suf9-
eiently authorize the executors to lell and make
a good title to the land. Under these circum-
stances, this charge for the balance of the
purchase money is rejected by the auditor.
"The counsel for the bank and executors
has aUo made a statement, which is also an-
iiexfd. The auditor rejects both statements,
and presents one of his own. It appears that
when David Peter died, he i.CHsesied a lar-e
Imitate, with a suitable estahliaiiment, in George-
town. He left a widow, three sons and two
daughters, minors. His estate, although large,
was not proportionablj' productive. It consist-
ed of land in Montgomery County, Maryland,
aou lots and houses \a Gcorgctowu and the city
(if Washington; aiiJ moat of the lots were un-
impruvtd. The land in Manland was tenanted
out, except one farm, which, being stocked,
was reserved for the management and support
of the family, and so i;jinains to this day. Tlte
income arising from the estate annually, after
paying taxes, was insiifUcient to defray the ez-
pfDses of the establisluucnt in Georf^etown la
the manner they had been accustomed to live,
and to educate the three sons and two daugh-
ters. The auditor has, thi-reforc, estimated the
family expenses at C1,BG0 per annum, or CoOO
over and above the produce of the stocked
farm, uud ths small amount of rents received
in Jlontgomcry. In addition to these expenses.
the estate was bound by thi: will of David Pe-
ter's father to contribute to his mother's sup-
port duriug her life, .'ilSOO In money, with a
proportion of wood and provisions, per annum.
I'liese hca\7 charges upon the estate, and the
accumulation of Interest and discounts on
debts, ha^ caused the i;E::itc to fall largely In-
SIl'I dAted to the -cxKUlors, while the
Bank of the United States, as assignee of the
Bank of Columbia, and other claimants remain
unpaid.
"The claims upon the estate by Richard
West, Thomas P. Wilson, and the Union Bank,
were recoveied hy judgments against George
Peter, as executor and indorser, and have been
fully paid hy him.
"By the statement now presented, it appean
that the esUte is Indebted to the executors
tlT,S3B.91, arising from the above causes; the
larger part, if not the whole, is in justice due
to George Peter; in addition to which he haa
an account for a considerable amount which is
suspended in this audit, on account of some
charges in blank, for sundry payments to man-
agers and overseers, blacksmith's bills, etc.,
etc.; which charges may be considered when
the claims generally shall be presented for
Bnal settlement.
"The death of the executrix, the subsequent
death of Leonard H. Johns, who was the act-
ing executor, and the surviving executor not
residing in the district, and knowing little
apout Uia manner in wbicb tb« eatate hw been
Baa
managed, the want of papers and eonfusod
state of the whole concern, renders it a labori-
ous and difficult task to do exact juatice to all
parties; but with the materials within bis
reach, the auditor lias made the best report in
his power, which he hopes will be received. It
cannot be very material to the heir^ whether
they still owe the hank or not, because if they
do not owe the bank, they will be by the aaau
amount more indebted to the executors.
"December 10th, 1833.'-
The complainants excepted to the report ol
the auditor. The following is a summary
statement of the exceptions:
1 and 2. That the auditor has not cuarged tbr
said surviving executor with the omount of ths
inventories of the personal estate of the testa-
tor, filed by the said executors in the Orphan's
Court of Washington County, District of Co
lum'iia. on the liVu of Dtceinhsr. in the yeai
ISla,^ anj ou the 12th of January. I8l;t.
3. That the auditor has not rechj.rgeJ tha
surviving executors with the sum of $4,55^,
being the value of certain personal effects, part
of the assets of the testator's estate, ap|)liruble
to the payment of his debts, whii-k Has iiupiup-
erly delivered to Sar.th Peter, wlduw anu ex-
ecutrix of the said Duvid, as a legucy, and foe
which said executors have obln^ncd i'iiipru|M'rly
a credit on the settlement of their acLountd
with the said Orphan's Court.
4 and S. That the ai'dJ-.or has not char^-ed
the said surviving executor with the Huiouuta
respectively, of two promissory noii'j r,f f!,-! r^- ■
•Magruder, and interest on one to the [*3t3
1st of Januarj", 1815, rnJ the oth:T to the 1st
of January, ISlfi, which said notes were re-
ceived hy the said executors of htliI M:igr>iil-r,
for the second and third installments of the
Eurchase money of the tract of land called
lulin's farm, deviiicU to be sold, and sold by
said exei^utors to aid in l.he payment of testa-
tor's debts, whicli sdjd sums of money were lost
by the gross u^lcct and fault of Che said ax-
ecu tors,
7. That the auditor haa (^ivcn >.rcdit :.o said
e\<ci;tor in siild accjunt cunent Icr the lum at
f5,mn.02, hd.ig the cclm.il.d iL.:i.r,ml ..f Us>3
on Ih,' real i-slitc d vi,. d l.y i;id David Peter
to the complainants (the a*ppellees), and uup
posed to have accrued prior to the year ifi'St,
without any evidence that the said executors
hod ever paid that or any other suju of monej
on account of such taxes.
6. Tliat the auditor haa siven uredit t« tbe
executors for the sum of (3,000, being, as he
says, the estimated amount of the expenses of
Mrs. Sarah Peter's family for twelve years,
without evideuce to show that that, or an/
other sum of money was expended by the said
executors for such purpose.
9, 10 and 11. Tliat the auditor has given
credit to the said evecutor for the sum of
$8,931.12, tot discounts and curtails paid in
the Union Bank of Georgetown, and {1,430.75
for discounts and curtails paid in the I^nk of
Columbia, since the 26th of September, 1815;
after which time no debt was due front the
estate of David Peter to either of the said
banks, and after the aaid executors were in po»
aession of assets o( the said estate, BuOJoieiit
to pay all the debts of the said David.
)2. That the auditor has rejected the stat»
ment and ^ecouiit preaented on the part of th*
Peum It.
Pktu n u. t. Bbv^s i
•MDptalnutta, Um ftppellcM, and refuaed to
flhkrge tha aald execntora m tbey an therein
duu^ed.
In January, 183S, the Circuit Court overruled
Uw eioeptiona, and on the SSth of May, 183(1,
the following decree was made;
"Tbia causa having been set for hearing
upon the bill, answers, exhibits and evidence,
■nd haring been argued by eouniel, it ia thia
£Sth day of May, 183S, upon further hearingof
the parties and their counsel, ordered, adjudged
aod decreed, that the auditor'a report hereto-
fore excepted to by the complainanta, be, and
the same is hereby confirmed, and the wceep-
tioaa tliereto overruled.
"And the court, further considering the said
Cftase, to ordi-r, adjud^'e and decree, that the
•aid injunction, granted as aforesaid, on the
K4S*] 'prayer of said complainants, be, and
the same Is hereby made perpetual, and that
Um defendants pay to the complainants their
eosts of suit."
From tiiis decree tha defendants appealed to
thia court, and the complainants appealed from
•o much of the decree as confirmed the audi-
tor's report.
The case was argued by Mr. Key and Hr.
Sergeant for the appellants, George Peter, ex-
«cutor, and others; and by Mr. Coxe and Mr.
Maibur; for Jamea B. Beverly and others.
The counsel for the appellants submitted the
foUowipg points to the court:
I. That under the arrangement made be-
tween the banks and the executors, the trust
estate in tbeir hands continued bUII tiahls to
the bank of the teatator's debt, notwithatand-
ing the substitution of the executor'a notes.
' 2. That if not, still the trust eaUte was
liable for the indemnity and re-imbursement
of tbe executors, who had assumed the re-
sppnsibilit^ of these debts.
3. .And if ao, the proof shows that they had
largely overpaid tbe estate, even beyond the
amount of tbe responsibility thus incurred;
the allowance made by the auditor for the aup-
Sirt and education of the family, excepted to
' tbe complainant, being correct, and his dis-
lowance of the charge on the executors for
negligence, for the unpaid balance of the pur-
euse money for Dulin's farm, also excepted to,
being also correct.
4. That under the will the power to sell iur-
vfres to the remaining executor.
5. That the decree of the court below is re-
pugnant, erroneous, and contrary to equity, in-
asmuch OS conflrming the auditor's report, and
thereby admitting the equity of the defend-
ants, to the extent before stated; it neverthe-
leas grants a perpetual injunction against the
appropriate l^i mode of etTectuating that
equity, without affording them any other relief.
Mr. Key, for George Peter and othen.
The facta of the case are these:
The testator, D. Peter, died in 1B12, leaving
a widow and five children, all young; the
eldest about twelve ^ears old. Thry eon-
ft44*] tinued *to live in the mansion-house in
Georgetown till 182B, when the widow died.
The executors were the widow, her brother
Leonard Johns, and George Peter, the testa-
tar's brother, the surviving executor.
The family were supported and edaceted,
and the income of the estate was insufficient
for that purpoM, u ia averred ia tbs answers
■nd proved. The piinelpal debts wen dvc to
tha banks; some discounts were paid, but a
large amount of interest li still due on tiM
debts.
The executors made an arrangement with
the banks, by which their own notes were sub-
stituted for the testator's, and wei« to b« so
continued as long as the bank would IndiUge,
or until tbe executors could make sales. 1^
arrangement was understood by Beverly and
Ramsay and all the family, as is proved by th*
answera, by Beverly's letters and by Kurts.
In 1827 the banks file a bill against the
heirs, to sell the real estate to pa; these debt.
Beverly and the other heirs answer that the
debts are paid by the executors' notes, uA
plead limitations.
In the meantime, the surviving exeeutor,
having judgtDents against him by one of tha
banks levied, or about to be, on his own P<^P-
erty, is advised that he has a right to sell the
city lots, as surviving executor, and advertises
a sale in 182B. Tbe bill is then filed by Bever-
ly and the heirs, and injunction obtained,
which the court below has decreed shall be
perpetual.
In 1S14 the executors sold Dulin's farm to
Mognider, and received about one third of the
purchase money,
The will shows that the tesUtor intended the
property specifically devised for that purpose
should be applied to pay his debts; that the
other propertT, the personal estate, should be
kept for his lamiiy; that in hia house not to
be inventoried ; and that the children should
be maintained and educated. The city lots to
be sold, in aid of Dulin's farm, to pay his
debts, as soon as sales could be elTeeted.
These intentions the executors have fulfilled
and it is not creditors who had a right to do
so that are complaining of this, and that their
St of tbe estate, as intended by the testator,
who have bad all the personal estate, and who
now seek to throw the debts on the executors
and take from them for their own use the
trust property, which they were to sell to pay
the debts.
'Their bill charges mlaappllcation (*B4S
and negligence. What is tha misapplication T
Not that they have applied the eatate to the^
own use, or to the use of anyone but the
heirs; but that they have not "duly adraini*-
tion charged on the surviving executor. It
may have been that of the widow and her
brother.
The same as to the n^tlgeuce; and the
answer of Beverly's own letter and his bill,
filed in 1821, and dismissed, show that the de-
fendant George Peter came into the trust mere-
ly to attend to a farm or two in Maryland,
and that be left the whole management and
settlement of the estate and the maintaining
and educating the children to the widow and
her brother, the other executors. If they mis-
applied the assets to the children's use, instead
of the creditors', it would be bad enough for
the ebildren to complain of this against them.
But to complain of this, or their negligence
against the defendant, the surviving executor,
who had nothing to do with it, wouhl be still
Suranu Coun or thk Uiiirn> Btm
mora (inr«*ioiuibIe. Hie effort U to make him
pay the teatalor"! dcbta, becauH the other ex-
•cutoTS gave the property to the ehildrrn; «nd
It !■ made b; the children, who have had all
the benefit of the proper^, T Johns. Ch. Rep.
Payment of one note by another la never
pr«Biimed an exttngutahmenti it must be
proved to have been so Tecei*ed.
All the answera and evidence, and Beverly's
letters to 1827, and hie bill Bled aeainst the
ueeutore In 1^1 and dismissed In 1824,Bhow
It was not so received; that the trust proper-
ty still continued liable for the debt*.
The notes of the testator were given up, not
to be cancelled, but in confidence, to be pre-
•ervedi to be filed, with the execu tor's account,
in the Orphan's Court; that account was not
finally settled: the notes are there. 11 Johns.
Bep. 613; U Johns. Rep. 404, 4U; 7 Bar. t
Johns. 92; 2 Gill t Johns. 403.
Second point. But if it was a paynipnt, still
the trust estate would be liable for the indem'
nity and reimbursement of the ciecutnrB. The
executors would be substituted for the cred-
itors, and could sell. 7 Har. k Johns, 134; 4
QUI & Johns. 303; Z Pick. 617; 1 Cunn. Rep.
61.
Third point. And so the proof shows that
they had largely overpaid the estate, to an
amount far ^yond tlie amount ot the bank
debts.
S4C*] 'The accounts taken by the auditor
all show this, and the exceptions were proper-
Iv overruled by the court below. As to the
first, second and third exceptions, the auditor
was right In not charsing the executors with
the inventories, and in allowing them what
they gave the widow. He charges them with
what they sold; all the rest the family had.
As to the fourth and fifth, the charge of
negligence in not reeorering the balance of the
purc^se money from Magnider, the exec-
utors are proved to have acted by advice of
counsel; to have brought an ejectment to re-
cover the land and resell it If there was any
delay In that point, the fault was Beverly's,
who undertook to superintend it. 2 Johns. Ca.
376; 4 Gill & Johns. 323; 1 Har. k Gill, B8;
4 0111 t Johns. 463; 4 Rawle, 148.
As to the sixth, the tax lists show the amount
paid; there was no other way of being paid but
out of the estate by executors — this is proved
also by Beverly's letters.
As to the other exceptions, the auditor was
right in allowing for the discounts paid on
their notes, and in allowing $t)00 a year for
twelve years' maintenance of the family; the
proof and Beverly's letters show this. He
married in I81S, and lived with his wife, with
the widow, her mother, till shortly before her
death. Wire v. Smith and Buchanan, 4 Gill
t Johns. 303; Billington's Appeal, 3 Rawle,
4B.
As to the fourth point, the power of the sur-
viving executor to sell, he cited, Lock v.
Locket, 1 And. I4G; 3 Dyer, 371; Moore's
case, 2 Leon, Pow. on Dev. 230 ; Sug. on Pow-
ers, 167, and note; 6 Rand. 600; 2 Dull. 223,
i Binn. 60; 1 Yeates, 422; 3 Yeates. 163; 4
Beti. ft Mnn. 444; 6 Munf. ISO; 4 H. A M'H.
499, and ooBtended that tliia will created »
trust, not a naked power, which aurvived, and
to the eieeutora virtute ofBclI. Cited, Bi^
on Powers, 111, and note.
Fifth point The court confirmed the audi-
tors report, admitting thereby that the estate
was overpaid by the executors, and yet pro-
hibit the sale: this la repugnant and erro-
neous. If the court thought the surviving ex-
ecutor had no oower to sell, why enjoin him I
Why not, as tne parties were all before the
court, appoint a trustee and decree a aalet
This the? could have done with a cross bill.
But If a cross bill bad been necessary, tha
court should have directed it. Coop. Bq. 7,
pi. 34, 84; 7 Johns. Ch. Rep. 260, 251; Mitf.
•The counsel for Beverly, and the I'54T
other appellees, insisted:
1. That at the date of the advettiacment of
the sale of the lots, there was no debt due tha
banks, or either of them, or any other debt
whatsncver, for the payment of which it was
either necessary, proper or lawful for Goorga
Peter to sell the city lots.
2. That the balance of debt appearing, by
the auditor's report, to be due from the heirs
of David Peter, to the executors, is made up
of charges which, if they have any valid exist-
ence, have arisen since the deatl. of David
Peter, and are not embraced within the pro-
visions contained in his will for the payment
of his debts; and, consequently, that the real
estate is not liable to be sold for the payment
of the same.
3. That the surviving executor, George
Peter, has no legal right or authoritv, as exec-
utor, to sell the land in the said w'ill dcvi«p<l
to be sold for the payment of the testator^
dehU.
4. That the city lots, advertised to be sold
as aforesaid, are not by the will devised to b«
sold, until the proceeds of the sale of the farm
on which Dulin lived, and the personal estate,
has been applied, and a deficiency appe.tr.
6. And in order that the whole contruversy
between the parties may be closed without fur-
ther appeal to this court, the apprllees further
insisted that the Circuit Court err<:d in over-
ruling the several exceptions aforesaid to the
auditor's report, and in ratifying and affirming
the said report
Mr. Marbury, for the appellees.
The executors elaim a right under the will
of David Peter to sell the land devised for the
fayment of his debts: they have been enjoined
rom BO doing until it shall be ascertain») that
there are debts existing, for the payment of
which It would be right to make such sale;
the debts alleged to be unpaid are those which
were owing by the teatntor at the time of his
death to the Bank of Columbia and the Union
Bank of Georgetown. On the part of the ap-
pellees, it is insisted that these debis have
been paid since the death of David Peter;
not, in fact, with money, but by the aubstitn-
tion of the private notes of the eieculnrs, and
the simultaneous surrender by the banks to
the executors of the original notes of their
testator, with the design that the executors
might exhibit those notes ae paid, and obtain
a credit for the amount In tne settlement ot
their account with the Orphan's Court. Aa a
sufficient consideration for their assumption
to 'pay theaa dabta, the axecutora had ['S4>
rotera 1*.
h titeir control sn estkte amply iufficient for
pajmmt of all tlie dHiti of Ihe testator, when-
trer tti^ should pleaae to apply it; their
Botea given in lieu of the teitator's Iiftve been
renewed bv the banks from time to time for
tlie term nf fifteen years. The object of their
armngement hod been aeeompliahpd; tlisir ac-
count has been settled In tlie Orphan's Court;
they have obtaineil a credit for the amount ot
David Peter's debts to the banks; his notes
are there filed as vouchers by which the ex-
ecutors are discharj^d from liability to ac-
count for an equal amount of the assets in
their hands. Having thus dealt with the ei-
ecutors, the banks cannot now claim to be
creditors of the estate of Darid Peter.
If one deal with another's agent, and gije
him % receipt for a sum of monej' which the
agfnt had a right to par, and on the faith of
that receipt the agent obtains a credit in act-
tJement with his princiral, this debt Is thereby
discharged. IS Johns. Itep. 276.
It is conceded that the acceptance of a prom-
issory note will not pay a debt unless it be so
cgreed; but the acceptance of such a note, and
Uie simultsneous surrender of that in lieu of
wliich it fs given, are necessarily conclaaive of
the fact that it was given and received in pay-
tnent. 16 Johns. Rep. 273; 12 Johns. Rep.
409; 1 Dane's Abr. 126.
It ie said if the debts have been paid by the
•xecutors, they stand in the place o( the cred-
itors, and are entitled to sell for their own in-
demnitv. It cannot be denied that a trustee
who advances his own money before sale to
pay the debt of his principal, may muke the
trust fund available to hirnself for his indem-
nitj. Id this case, however, the executors had
the control of an ample personal estate, inelud-
lag the proceeds of the land sold by tbem un-
der the will, to pay the debts. If it has be-
come a matter of account between executors
and heirs, this personal estate must be firat
•eeoDnted for. What fans become of ttT Why
have the e>:ecutors not applied it to discharge
the debts I They ought not to be allowed to
appropriate other parts of the estate before
this has been accounted for. The land devised
to be Bold for the payment of debts is in equity
regarded as personal estate. I Uar. A Gill, 96.
A full and satisfactoiy account has not been
taken; the auditor has refused to charge the
executors with the amount of the inventory of
the testator's estate, made out by themselves
and returned to the Orphan's Court; and this
under the pretext that the property therein in-
Tentoried and appraised never came to the poa-
54**] session of the executors. 'This is at
variance with the evidence in the cause and
the act of the executors, who, in their settle-
inenta in the Orphan's Court, have charged
themselves with the same property. The Act
of 1796 (ch. 101] requires executors and ad-
ministrators to return inventories only of
property which does come to their possession,
and such return Is prima facie evidence
against them. The inventory is the basts of
the administration account; the act requires,
tn terms, that the executors shall be charged
with the amount of it, they must discharge
tbemaelves.
The auditor baa aJso refused to charge the
•xeeutor* «rith the notes taken by them of the
. 8KTBn.T n AL MS
thority In the will; although It is made mani-
fest that the money secured by those nut^
has been lost by their groM negli|tenc«. Near
five years were suffered to elapse after the
note* had fallen due before any step was taken
to enforce the nayment of the money; a suit
was then brought against the drawer, but no
suit was ever Instituted against ths sureties;
the remedy against them was voluntarily
abandoned by the executors. They are charge-
able with the amount of ths notes and interest
to the period of their maturity; from that day
the amount must be taken to be assets in hand
for the payment of debts. 3 Johns. Ch. Rep.
GG2; 4 Johns. Ch. Rep. 234; 1 Har. A Qill,
SB; 2 Brown's Ch. Rep. ISB; 0 Vea. 839; 11
Wend. Rep. 3S1.
It has been said the executors are not
chargeable with the personal estate, becausa
the testator has charged hia real estate with
the payment of his debts, and thereby ex-
ry fund for the payment of debts, and must
be first applied. In order to exempt it, the
testator must express his intention to that ef-
fect: it is not sufGcient merely to chu^e the
real estate; he must show expressly his In-
tention to be that the personal estate shall
not be applied in discharge of his debts. J
Brown's Ch. Rep. U4 ; 1 Ch. Ca. 296'.
There is nothing in the will of the testator
to support the construction of the opposite
counsel. The real estate is charged only to
aid in the speedy payment of the debts, but
the personal estate is not exempted, eitlier
directly or indirectly.
The auditor has not only refused to debit
the executors with the preceding charges, but
he has allowed them credits which can be sus-
tained neither by the evidence or law. In his
account the executors 'are credited by [*S50
the sum of $6,800; being, as he says, the es-
timated amount of taxes on the real estate of
David FeUr, from his death In IBIZ to 1820.
That such taxes became due, and liave been
paid, is proved; but by whom, and out of what
fund paid, is not proved. It wsa not the duty
of the executors, or even proper for them to
pay such charges, and more particularly, while
debts were outstanding and unpaid; it is not.
therefore, to be presumed that this sum was
paid from the personal estate and by the ex-
They have also been credited by the sum of
$6,000, alleged to have been expended by them
in the maintenance of Mrs. Sarah Peter's fam-
ily, and this has been done without any evi-
dence that the executors ever expended one
cent for any such purpose.
llie income of their estate Is the proper
fund for the education and maintenance of
heirs during tbeir minority. The law indi-
cates this, and guardians are not permitted tc
exceed it without necessity, and then only with
the sanction of the judge of the Orphan's
Court. Acts of Assembly, 1786, ch. 80, see.
9; 1709, ch. 101, sub. eh. 12, see. 10; 2 Uar.
& Gill, 12G.
The testator, in his will, sets apurt the In-
come of his estate for this very purpose; the
executors had no right to exceed it; it they
liave done so, they should show that neoea-
Bvmait Coim or tsK UKtrm ttoAncs.
tloMd it, fttid that Om? Mtuallj expendMl thB
mon«7 for the purpose. They show neither;
this credit ought not to be allowed. 1 Bar.
ft Johns. 227; 8 Mese. Rep.
If tbe account be remodeled, and the prin-
ciples contended for be admitted, it ia appar-
ent that the eiecuton in 1816 were in pos-
aeaaion of abundant RiRans, at pleaeure, to pay
all their teatator'a debts; It wa* their dut; to
applf the aiseta to that purpose, and save the
eetate from the accumulation of interest.
Whether the; applied the money to their own
uee, or only neglected to apply it properly, Is
of no consequence; they are chargeable with
the interest. If they have auflered the debts
to itand unpaid, and have themselves subse-
quentijr paid them, with intereat, they ought
not to be allowed in their account for the In-
terest ao paid; it was created by their neglect,
and they should bear the burden themselves:
all discounts and interest paid after the year
1816, and credited by the auditor, ought to
be disallowed.
The surviving executor ia equally chargeable
with the others; be joined in the return of the
inventories: that fact shows him in possession
of the property Included in them; it was not
BSI*] only his 'right, but his duty, t« retain
that possession and apply it to the purposes of
the esUU. Dick. 3Ge; I Rubs, k Mylne, G4.
He joined also la the sale of the land, and
in the receipt for the cash paid and notes
given tor the purchase money; and although
tha money may have been paid to another, yet
he is responsible. Free, in Ch. 173.
Coxe followed on the same aide.
Mr. Sergeant, in reply.
It is argued on the pMt of Beverly and
I. That there was do debt due to either of
the banks, nor any other debt due by the es-
tate of Oeorge Peter for which it was proper,
lawful and uecessary to make a sale of the
real estate.
The inquiry then is, was there a debt due
to the Bank of Columbia, and to the Bank of
the United SUtesT This is the first branch
of the question.
It is not denied or disputed that at the time
of the decease of David Peter, debts were due
to both those banks. Have those debts been
paid! For their payment provision woe made
by the will; a trust accompanied with a power
to sell particular portions of the estate was
oreat«d by It. The proof of the payment oF
the debts lies on those who now sedc to obtain
the estate of the testator, and to restrain the
executor from selling the some for their pay-
ment. Until payment, the debts remain a lien
on Uie trust, and nothing can affect the lien
but a failure of the tnut, or a failure of power
to execute it.
Have the oomplainanta in the Circuit Court
Srovetl that these debts have been paidt They
0 not pretend that an actual paymt^nt has
lieen made. It is well known to them that
the executors never had the means of payment,
and this is manifest from the accounts which
were exhibited to the auditor, and which are
In the record.
But, without even an all^ation of actual
payment of tbe debta, an attempt has been
BMde to show a constructive payment; and
Vhila tha inrviTlnc axeentor would, bT tb*
success of this effort, remain personally ItabW
for the debta, and tha whole of his private es-
tate will be absorbed, the estate of his testator,
David Peter, will be enjoined by his ilevisees.
The discharge of the estate of the teatatw
from the debts due at the time of his decease
to the banks, is asserted and claimed becaOM
the 'notes given by him were surren- [*B&1
dered to the executors, and their private not«
given to the banks in lieu of them.
"The acceptance of a negotialile note for aa
antecedent debt will not extinguish such d^bt,
unless it is expressly agrei'd that it is received
as payment." Spencer. Justice, in James *,
Haclcley, 16 Johns. Rep. 2T8. It was express-
ly agreed in this case that tbe surrfnder of th«
notes should not be so considered, and the
parties interested always acted in the spirit of
the arrangement. It was known to Mr. B«T'
eriy that the debts to the banks continued, sod
had not been paid. In his correspondence be
refers to the payment of a part of the funds
of tbe estate to the dinchsrf^ of the discounts,
and to the peculiar liability of Mrs. Peter for
some part of the debt, by notes given by her.
This IS also proved by evidence in the cast,
and in a bill filed by Mr. Iteverly in 1821, the
debts are stated to be unpaid. In support of
the position that givin? up a note is not an
extinguishment of a debt, cited, Arnold v.
Camp. 12 Johns. Rep. 400; IS Johns. 298;
Glen V. Smith. 2 Gill &, Johns. Rep. 493.
The legal presumption is that it la not an
extinguishment of a pre-existing debt, but
there are cases where the court will intend it
to have been in satisfaction of such a debt
Arnold v. Camp, 12 Johns. 40B; Cheever v.
Smith, IS Johns. 27S; James v. Hackley, IS
Johns. 273.
Has the principle any appli'mtion to the case
before the court? The conti'ary is asaerted,asd
the record furninhea abundant evidence to sup-
port the aasertion. Everyone interpsted in the
estate knew the real situation of the case. The
whole of the resources ivere insufficient to sup-
port Mrs. Peter, as she was authorized to claim
to be supported by the will, and the executors
had no means to pay the debts. The family of
the testator were maintained, and Mr. Beverly
resided in the family mansion after his mar-
riage with one of the children. H« waa wdl
acquainted with the alTairs of the eatata, ual
acted in reference to them.
The executors were always creditor* of the
estate. In 1814 the estate owed the executors
$9,148.40. In 1821 the balance due them was
824.131.10. The report of the auditor fully es-
tablishes the fact that the estate was always
indebted to them in a large amount. Upoa
his report (11,530.61 were due to them, ex-
clusive of the bank debts. It these estimates
are denied, it will still be admitted that. In
any form of stating the accounts, they wm
creditors.
*It was perfectly consistent with the [*ft5t
trust In the executors to make tha arrange-
menta they did for the postponement of um
bank debts, and they did It in good faith.
The bank, to give time, required notes fron
tbe executors individually, and notes wer* sc-
cordingly given. But the agreement waa also
made that the banks were to continue th«dr
claim on the trust. The equity is tberefon
■ItaiiMt Um sxtinguishmeDt asserted.
»H
ima R U. T. UITDLT I
nwn an eolUterAl proofs that tbl* wai the
■iTuigeiiieDt, Th« discounta paid are charged
to the estate, aad the coat of a protest i*
Aarg«d. Beverly alwajF* admitted the charge
for diacounta on the Dotca, aftar the original
note* bad been given up. The first objection
ever brought forward, wai preaeuted on filing
the azceptions to the master s report. It it, in
fact, the ordinary case of putting ToueheTs in
the hands of the trustee, under a special agree-
aient. Cited, 2 Gilt & Johns. 610.
2. But suppose the facta were that the catate
of David Peter was no longer indebted to the
banks ; that by the turrent^r of his notes, and
taking the private notes of the executors, the;
were no longer creditors of the estate, would
the debt be thereby eitinguiahed T It would
only be transferred, and nauld be and remain
until paid by the estate, due to tlie executors.
Is equity they would he the creditors of the
SiUte, and would be entitled to the beneflU of
the security in the will. Tlie surviving ex-
ecutor would still be a trustee, and have all
the rights over the estate to provide, by its
ule, for the satisfaction of the debts which
were originally given by the will. To the au-
thorities cited, may be added Greiner's case,
2 Watts's Reports. 414.
The eiecutor agrees that the original credit-
or shall still have the securi^. This he has a
right to do, and no one can interpose to pre-
vent his carrying this purpose into effect.
There is a plain equity in favor of this.
But there is a further equity in this case,
supporting all that has been urged for the con-
sideration of the court. It answers also the
■ecood point made by the appellees. That
Kint is, that if aaj balance is due to Geor^
ter, as stated in the auditor's report, It is
made up of charges arising since the date of
the will, not embraced in the provisions there-
of for the payment of the same, and therefore
that the r«a1 estate of the testator is not
liable to be sold for the payment of that debt.
The facts stated in this proposition arc not
SB4*] sustained. There 'never was in the
hands of the executors, or under their control,
the means of paying the debts. After making
the provision for Kirs. Peter, the whole, and
oiore than the available means of the estate,
wertt consumed. The debts due the executan
grew out of advances made for the estate, for
tazea, expenses and interest.
Who are the parties before the courtT The
axeeutor and the only remaining creditors on
oae side, and the children of the testator, hi<3
legateea, on the other. It is the duty of the
executor to execute the will, and, independent-
ly of the creditors, he had oo other law to
Mgulate his action, and no other powers but
Uioaa given by the will. Creditors may defeat
the purpose of the testator, and control the
aetioa of the executors, but In this case they
submit to it, and aslc the executor to perform
his trust.
What, then, Is the will which the executors
were to executel What are its provisions?
1. Aa to a portion of the personal property,
which woe not to be appraised or valued. This
anounted to $4.C6£, and was part of the per-
sonal estate in the dwelling-house at Qeorge-
tswn; and was given to Mrs. Peter.
2. CertaiB apMibd portiaH of raiil oUta,
and personal estate on part of it, are set apart
for the payment of debts,
3. All the rest of tbe estate is given for tho
maintenance of the family of the testator, and
for tbe maintenance of the children.
Such a will may be wise, or it may be un-
wise, but it is a good will and lawful; and it
is the duty of an executor to execute It if ha
can. The power to do so depends on the cred-
itors, and they have agreed: they take tlus
triut, and ask Its performanc/. Can tbe le|;a-
tees object to thisT If they do, they abject
not to the proceedings of the executor, but to
the direction of tbe testator. The testator
marshaled the assets. The wilt has been ex-
ecuted in the spirit and according to the di-
rections of the testator. The will made tbe
real estate personal estat«.
If it shall be said that the esUU has not
been administered according to law, it is an-
swered that they have not administered it as
tho law would have required of them if there
had been no will; but they have conformed to
the will in the administration, and this tlie
creditors, now before the court, have permitted
them to do so.
The family have every part of the estate but
that which is now claimed by the creditor, and
bv the executor, to pay the debts; and now
they want this because they have had the rest.
They would 'leave the creditors un- ['SSR
paid, and would deprive the executor of all
his property; obliging the creditors of their
parent to take his estate for the satisfaction
of debts, which, by the will of their parent,
were to be paid out of his estat*.
Against the claim of the surviving executor,
a claim founded on his assumption of the debt
of their father, the ap|>etlees, his legs tees,
would now plead tbe statute of limitations.
The creditors now ask to have the fund pro-
vided by the testator applied to the payment
of their debts. This is resisted by the children
of the testator. The equity of the claim is
too plain to admit of a doubt.
It is altogether unnecessary here to Inquire
what would be the effect of the executors hav-
ing misapplied the otber funds of tbu estate.
1'hey have not done so. The evidence, Uis
true purpose and intent of tbe will, and there-
port of the auditor, clearly prove this. But if
they had done so, on whom ought the loss to
fall? It ought not to fall on the creditors, or
upon their fund. Their forbearance should
not be visited by such a pennlty. There is no
construction of the will which will sustain such
a suggestion. The purpose of the will was to
designate and set apart a portion of the estate
for tbe payment of the debts of the testator.
The wilf give
the executors a t
■ to sell
It creates a trust (Sugden, 392, '3U J), and
equity will not permit the trust to fail for
want of a trustee. In this ease it suivives to
the present eiecutor, the appellant. Not be-
ing a naked power, but one created for a
special and expressed purpose being a trust, it
will not be permitUd to fail. Citrd, Wilmot.
23; Williams on Executors, 026, 027.
The construction of the will which is as
serted for the appellant is strongly supported
by the judgment of the Court of Appeals of
Maryland. 4 Gill k Johns. Rep, 328, 32S.
Vvon tbe excentions to the auHit^r'* ~nnr4
us
SnPBuix Couir or the Utiimt Statib.
ISM
Mr. Sergeant argued u to the first and second
eixeeptious, tha property in tbe inventaries was
not aold, DOT converted to the use of the cred-
itors. It remained with Mrs. Peter and lier
tuaily, and remains still with them. Are the
amounts of the inventories of that property to
l>e charged to the executors, who never received
knj of the property; or to the creditor*, by
whose forbearance the family of the testator
was permitted to enjoy itt These observa-
tions also apply' to part of the matter in the
fourth and flfth exceptions,
sse*] *It ia denied that, on the part of
George Peter, tbe appell:int, there was ever ■
neglect of duty. It does not appear that at
sn^ time until the Qling of the amended bill in
this case, it was ever alleged or luentinned. It
is now brought forward after one of the exec-
utors is dead and his papers have Iwen de-
stroyed, and after Mrs. Peter's death. It is
now charged against the only surviving ex-
ecutor, and who did not at any time take any
other part in the business of the estate but
collecting rents, and who never appropriated
ft dollar of the estate to his own use.
In reference to the charge of neglect In not
collecting the balance of the debt from the
Dulin farm, no imputation of this kind can tie
■uetaiDcd. It might well be supposed that the
property sold was a security fur that balance,
and the purchaser bad acquired no title. The
necessity of suing out the notes is not admit-
ted, for tbe executora might have thought their
fecovery doubtful, or have thought a suit un-
necessary. But as to this, there is a clear pro-
tection from personal liability by the exec-
utors, as tbey put tbe claim into thr hands
ot counsel, and Mr. Beverly was well ac-
quainted with tbe whole proceeding.
As to the seventh exception, tbe auditor, in
?'iving the credit complained of in it, was per-
ectly right. Vouchers, sufficient, under tbe
circumstances of the case, and considering the
nature of the expenditures, were furnished to
support tbe crediL Of the eighth exception it
may also be said that the vouchers were such
as ought to have satisfied and did satlsFy the
auditor. It could only be by an estimate of
the family expenses of Mrs. Peter that the au-
ditor could arrive at any particular sum. For
such expenses receipt* are not kept. The ds-
Lision of tbe auditor on the amount Is sufl-
Tbe exceptions wblch ^o to the rejection of
the debts for bank curtailments, and the pay-
ment of the discounts on the notes, cannot pre-
vail, either if the debt was set down by thr
estate to the banks, or to the executors.
There were no means of making these pay-
ments ill the hands of the executors derived
from the estate, and the funds must therefore
have been provided out of their private mean
Mr. Sergeant went into a particular atati
ment ot the aceounti of the executors tor the
purpose of answering the twelfth excep'
and contended that the auditor was righ
rejecting the statement and account presented
by the appellees, and refusing to charge thr-
executore aa charged by them.
SST*] *He contended that no fair account
could be made which would not show a balance
in favor ot the executors to » very large
unonnt. To prrrent thii baUnoe, there are
but two wayi of stating the account. One to
apply certain inapplicable rules to the conduct
of the executors, which, when tbey ought to
apply, are very well; the other to invoke and
apply the statute of limitations. One modi
makes the executor pay what the legatees have
had, what tbe family has subsisted upon, tbt
other deprives the creditors of what they ought
to havB had.
It is said they had no right to apply the per-
sonal estate to the support of the family of
Mrs. Peter, and to the education of the chil-
dren. That this was not a lawful course of
administration.
This position is true, to a great extent, where
there is no will; but evm in sucb a case, the
rule is not universal. Some allowance is al-
ways to be made, and is always made. So it
may be true, when the will does not contain a
provision to the contrary.
A mere charge of the real estate with debts
does not, it is said, discharge the pergonal es-
tate, and the counsel for llie appellcea hare
cited CRses to show this. Be it go, for in ths
case before llie court it is of no moment- It is
sufficient if there be an intention of the testa-
tor declared in the will that the personal es-
tate shall be applied for the benetit or for tlie
use of his family. It this lios been done, the
family cannot complain. 2 Conn. G31. We
have in this case the plain and evident purpose
of tbe testator declared in his will, and no
more is '■'■^uired.
As to .,ie attempt to set up the statute ot
limitations. This course is of doubtful mor-
ality, and in tlie record there is sulli.'ient to
show that Mr, Beverly cannot set it up. He
was himself the cause of the delay, and many
of the acta ot the executors were directed tn
himj and he had in charge a portion of the
estate, during a part ot the time since the
decease of the testator. In 1827, by a bill filed
by him, he acknowledges the existence of the
debts, and he saya nothing of tbe statute.
But it is unnecessary to dtvcll on these mat-
ters, as the statute of limitations has no appli-
cation to the case.
The statute docs not run in case of a trtist;
this is such a case, and if it was rciiiired for
the protection of the claims nf the aprcllanta,
there has been a continual acldiowledgment up
to this day. It has never been denied that the
sUtute does not run in esse of a trust. 2 Vea.
&, Beames, 278. But admitting this to be a
trust in 'England, it is denied to be so I'SSS
here. Has any authority been produced to sus-
tain this denial! and it would require the
gravest authority to support it. But the di-
rect contrary can be maintained by authoritiea
These will be found in Sugden (111, 1<13), in a
But what is a trustl It U, quoad hoc, dis-
tinct from ft aire power to be exercised or not
In this ca»e there was a fund set apart, ftftd
subjected to a power tor payment of debta. Is
it not, then, a trust in the executor, and ft
fund to which tbe creditor trusted t The debt
fastens to the fund, and continues till the trust
Is executed.
As to the remark about the trustee eoRBectlng
himself with the cestui que trust, Sugden, 22%
it means tbftt the trustee shall not buy ftny M
the eatftte.
b ihmn way tmund for enjoining the ftppcl-
kat not to lellT Tlie decree la repugnant tn
HmU. It esUblishea the title of the Appellant
la nlief, and then deaiei all relief.
Tliis emac
euit Court of tlie Diitrlet oi Columbia for the
County of Wwhington. The bill wu Oled by
the appellees in the court below to enjoin the
•ppellanta from proeeedini; to sell certain lota
of land in the cily of Waehington, belan^ng
to the estate «f David Peter, for the payment
of debts alleged to be due to the Rank of
Colnmbia and the Bank of the United States.
David Peter made his will bearing dato the
30th of November, ISie, end ahovtly thereafter
departed this life, and by his will lie declares
and directs as follows:
"It is my intention that the proceeds of all
my estate shall be vested in my dear wife
Sarah Peter for the maintenance and education
nf mj children.
"I wish all my debts to be as speedily paid
■B possible; for which purpose I desire that the
tmrt of iand on which Dulin lives, together
with all personal property thereon, may be
sold and applied to that purpose; and in a'ii1 of
tkat, as soon as sales can be effected, so much
of my city property as may be necessary to ef-
fect that object.
"I desire that no appraisement or valuation
shall ba had of any part of the property at-
tached to my dwelling-house.
"I desire that my sons shall receive as f;ood
•dueations as the eountiy will afford, and my
daughters the best Wie place can fumi*h."
And he appointed his wife Sarah Peter, his
BB>*] brother George •Peter, and his brother-
in-law Leonard H. Jofana, the executrix and
executors of bis will, of whom Oeoi^ Peter is
the only survivor.
The bill charges that George Peter, the sur-
viving executor, onder color of the directions
in the will, was about to sell that part of the
real esUte of David Peter which lies in the ci^
of Washington, and has actually offered the
Mine for sale at public auction. Tbe bill furth-
er charges that there came to the hands of the
•mentors personal estate of the said Dsvid
Tttei to tbe amount of more than 126,000.
That tbey had sold the Dulin farm for $20,688.-
M to George Maemder, in the year 1B13, and
neeived one third of the purchase money, and
took for the balance, divided in equal sums,
two promi*sory notes, one payable the 1st of
January, I8IG, and the other the 1st of Jan-
nary, 1810; one indorsed by Patrick Magruder
and the other by Lloyd Xlagruder. That the
imrchaser, George Magruder, was put Into pos-
session of the farm and still holds it, and that
the not«s given tor the balance of the purchase
money have been lost by the ne^fligence of the
lucntors. Tbe complainants deny the exist'
saee of any debt due from the estate of David
hter to the said banks, or either of tbem; or
■By otlier debt whatsoever, for the payment of
wUeh it Is either necessary, proper or lawful
tor tbo said Oeorge Peter to sell the said city
Iota. And the hill prays that the executor may
fully acooont for the real and personal estats of
ths said David Peter, and show how the same
has been diwoMd irf, and thM tto b«Bki may
BlVEBLr BT U. Ua
be required to produce tbe notes of other evi-
dence of their pretended debt, and prove the
same; and praying an injunction to restrain
the said i^eorge Peter and his agents from sell-
ing or in any way disposing of, or enctunbering
the real estate of the said David Peter In the
District of Columbia, concluding with a prayer
for general relief.
The injunction was granted, and, on the com-
ing of the answer, was ordered to be con-
tinued until the final hearing of the cause.
Tbe ansvter of George Peter, the surviving
executor, alleges that the principal manage-
ment of the business of tbe estate was assumed
by bii co-exeeutorsj that believing Johns fully
competent, and that be would attend to the
business in a way beat calculated to pramot«
the interest of his sister and her children, he
left it for them to settle the estate, and to col-
lect and dispose of the proceeds thereof, and
provide for the support and education of the
children, as they might think best, and that all
this was well linown to the complainant Bev-
erly, who married the cMtst daughter of the
testator in the year '1810. That lie and [*seo
his wife lived with her mother until within a
year or two of her death.
That the debts due to the banks have been
continued by renewed notes, and from time to
time, drawn and indorsed by the executors, in
compliance with the rules of the tianks, and
with the uiideiatanding that such arrangement
was to continue as long as the banks were will-
ing to indulge the estate, or until the executors
should be able to make sales for the payment
of those debts; that this arrangment was well
imderstood by Beverly and all tbe children,
who were old enough to understand anything
of their alTairs, and was often talked of by
Beverly and Ramsay, who always spoke of tbe
estate as liable to the banks for these debts.
The surviving executor, to the charge of neg-
lect in relation to the hatance of the jiurchase
money for the Dulin farm, alleges that Magru-
der, the purchaser, was sued upon the notes
given for the balance, and became insolvent.
That an ejectment was brought to recover pos-
session of the land that it might be resold, Do
title having been given for tbe land, but only
a bond for a deed, according to the terms of
the sale. That the ejectment was removed to
the Court of Appeals In Maryland, where bs
believes it is still pending. That if there was
any neglect or delay in recovering this land. It
was the fault of the complainant Beverly, who
idertook to attend to it, being then agent for
the estate.
The answer of the banks refers to the answer
of the surviving executor for the facts stated,
in relation to the arrangement between the exe-
cutors and tbe hanks, which, it is averred, was
entered into to save the estate of the testator
from a eacriSce, and to continue the accommo-
dation. That tbe exeeutora and the baake, and
the agents of the banks, one of whom was the
complainant Beverly, always so understood it,
and looked to the trust estate as still liable to
the banks. They exhibit statements showing
the situation of the debts at the death of the
testator, and the various renewals by the execu-
tors afterwards, in their private capacity, with
the variona payments which had been mad^
•nd ihowing the balaaoa now due.
SM
SoriBUE CouBT or the Unrnm StAtKS.
An amendeil bill wa» afterwards Died, calling
for Ml Mccmmt of other rnnnfjB alleged to have
been received hv the execjtora, and charging
mora particularly, nef>lig*'nee in tbe executorB
in not having sued Ihe indoraera of the Dotes
of Magrucler for the balance of the purcliase
money of the Dulin farm, uid tbe loaa thereof
by reason of.auch neelect.
To thla amended blH, the aurrlviiig executor
B61*] answers, stating his 'knowledge and
belief respecting the moneys for which he la
•ailed upon to account, denies the negligence
Imputed to him, and avers that if there was any
negligence it was that of the complainant Bev-
erly, who, being interested in the estate, and
being a Ipwyer, undertoolc to attend to tbe re-
cover; of tlie balunre of the purchase money.
That the indorsers were in very doubtful cir-
cumstances; tbat the land was considered by
all parties interested as sufllcient security for
tbe nalance of the purchiise money, and tbat
tbe counsel ot the executors advised tbe resort
to a resale of tbe land as the best remedy tor
the recovery of such balance, end for that pur-
pose an ejectment wb< brought to recover the
Kasession, and a bill in chancery filed in Marj-
id under the direction and superintendence
of Beverly; and that if any negligence occurred
In the prnsccutian of these suits it was attribu-
table to him.
The cause was referred to the auditor to take
and report an account of all sums of money re-
ceived by the executors from the real and per-
Bonnl estate respectively, and of the sums paid
by them in the due course of adminiatration;
and of any other sums paid by them for the
maintenance of the family and the education
of the children, stating them separately. The
auditor reports a large balance due the exec-
utora, allowing them for the maintenance of
the family and the debts paid by them. To
this report the complainants excepted, and the
exceptions were overruled, and at the Marcb
Term of the Circuit Court in 183G, a final de-
cree was entered confirming tbe report of tbe
auditor, and decreeing a perpetual injunction.
From this decree of a perpetual injunction, the
defendanta in the court below appealed, and
from BO much of the decree as confirmed the
report of tbe auditor the complainants ap-
pealed, and upon these eroaa appeals tbe cause
comes here for review.
Id examining the various questions which
baTi been made in this case, the most natural
order seems to be to consider, in the first place,
the will of David Peter. Upon this depends,
In a great measure, the rights of the banks as
creditors ot the estate, and the rights, dutiee
and responsibilities of tbe executors; and par-
ticularly those which devolve upon Qeorge
Peter, the surviving executor.
David Peter died in the year 1813, shortlv
lifter making his will, leaving his widow with
* hmily of five children, two daughters and
tjiree aona, the eldest about thirteen yearn of
age, living in ease and supposed affluence, as
appears, ^ot only from the pleadings and proofi
lild remain together and liva aa thxy had
tjiTTiwl la livf, And ha Meordi^-
ly. In the flrrt place, directs that tbe prooeedi
of all bia eatate should be vested in bis wife,
Sarah Peter (who is made one of hia execU'
tors), for tbe maintenance and education of hii
cbildrm. He directs that no sppnueement or
valuation should be had of an^ part of hii
property attached to hia dwelling-house, and
that his sons should receive as good educations
as the country would afford, and hi* daughter!
tbe best tbe place could furnish. Tbe family
accord ingty remained together, axcept Un. |
Beverly, and were maintained and educated ae- i
cording to the directions of the witl, until the |
death of the said Sarah Peter, in the year 182S. |
The testator directed his debts to be paid as
speedily as possible, and for that purooae de- j
dared that tbe tract of land on whien Dulii I
lived, together with all the personal proper^ I
thereon, should be sold and applied to the pay-
ment of hia dehta; and in aid of that, as acMai
as sales could be elTectad, so much of hia d^
property as should be nsceasary for the pay-
ment of hia debts.
The testator had a right, unquestionably, m
far as respected bis children, to charge the pay-
ment of his debts upon any part of hia estate,
real or personal, as he might think proper and
most advantageous to hia family. And if tbe
creditors were willing to lot^ to the fund so
appropriated to that object, no one would have
a right to counteract or control his will in that
respect. And be having thought proper to
constitute his widow the trustee of the pro-
ceeds of all his estate for the maintenance and
education of his children, thereby vesting in
her BD unlimited discretion in this respect w
far as the proceeds of bis estate would go, tba
surviving executor is not accountable for any-
thing applied by her for that purpose, not even
if she would be cbargeable with » devastavit.
For it is a well-settled rule that one executor
Is not responsible far the devastavit of hia co-
executor any farther than he is shown to have
been knowing and assenting at tbe time to such
devastavit or misapplication of the assets, and
merely permitting his co-executor to possess the
assets, without going farther and concurring in
the application of them, does not render him
answerable for tbe receipts of his eo-executor-
Each executor is liable only for bis own acta,
and what he receives and applies, unless he
joins in tbe direction and misapplication of
the assets. Cro. Elii. 348; 4 Ves. 608; 4
Johna. Cb. 23; 19 Johns. Rep. 421.
*It is not intended to intimate that [*ftSS
there was any devastavit or waste of the a»
tate bv Mrs. Peter. There is, indeed, no pre-
tense in the bill of any misapplication of the
estate by her or any other of the executora, uid
for the very purpose tor which the proceeds
of the estate were vested in her, to maintiin
and educate a family of young children, it w»»
necessary to clothe ber with a large discretion;
and for this reason tbe testator directs that
there should be no appraisement or valuation
of any part of hia property attached to hia
dwelling-bouse. The proceeds of all his est&te
being vested in his widow, would render it neo-
cssary, independent of any express direction ia
the will, tiiat recourse should be bad to tbe
real eatate tor the pavment of bis debts.
And this leadi, in the next place, to tba b-
quiiy wbttfasr Q»onn Peter, ttia iurvivisg «x-
IIM Pnn n AU V.
tentnr, Jim inthori^ to tell tbc tota fn the eft;
of Washin^on.
With mpect to the Dulin farm no doubt can
exist. The testator gives positive directions
(or thftt farm to be sold, and the prncecda ap-
plied to the payment of his debts. The ei«u-
torv in the sale to Magnider only gav^ a bond
for a deed; the title was not to be given until
the piirehasG money was ail paid, and tliat not
having yet been done, no title has been con-
veyed, and It yet remaina subject to be applied
to the payment of debts; and a resale is neces-
sary in order fully to carry Into efTeet the will
of the testator. It is a. well-settled rule in
chancery, in the construction of wills as well as
other instruments, that when land is directed
to be sold, and turned into money, or money is
directed to be employed In the purchase of
land, court* of eijuity, in dealing with the sub-
iect, will consider it that species of property
Into which it is directed to be converted. This
ia the doctrine of this conrt In the ease of
Craig V. Leslie, 3 Wheat. S77, and la founded
upon the principle that courts to equity, re-
garding the substance, and not the mere form
of contracts and other instruments, consider
things directed, or agreed to be done, as having
been actually performed. But this princip'e
may not perhaps apply in Its full force and
extent to the city lots. They are not positive-
ly directed by the will to be converted into
money; but the sale of them was continent,
and only in aid of the proceeds of the Dulin
farm, if a sale of them should beeome neces-
sary for the payment of debts. But independ-
ent of this principle, there Is ample power in
the aun-iving executor to sell. We And, in
the cases decided in the English courts, and Id
the elementary treatises on this subject, no
Httle confusion, and many nice distinctions.
5a«*] 'The general principle of the common
law, as laid down by Lord Coke (Co. Lit., 112,
b) and sanctioned bv many judicial decisions, is ^
that when the power given to several persons, i
is ft mere naked power to sell, not coupled with
■n interest, it must be executed by all, and
does not survive. But when the power ia
coupled with aa interest, it may be executed
S' tbe survivor. 14 Johns. Rep. fi53; 2 Johns.
. IB.
But the dinieulty arise* in the application of
the rule to particular cases. It may, perhaps,
be considered as the better conclusion to ae
drawn from the English cases on tbis question,
that a mere direction, in a will, to the execu-
tors to sell land, without any worda vesting in
them an interest in the land, or creating a
trnat will be only a naked pnwer, which does
not survive. In such ease, there is no one who
has a right to enforce an execution of the
power. But when anything Is directed to be
done In which third persons are Interested, and
who have a right to call on tbe executors to
exemte the power, aueh power survives. Thia
beeomcs neeessary for the purpose of effecting
tbe object of the power. It ia not a power
FOupled with an interest In eieeutora, because
they may derive a persona! twneflt from the
devine. For a trust will survive though no way
beneficial to the trustee. It Ia the
Of t
, Kuard'nn, or other tmatee, b invest-
ed with the rents, and proflta of land, for tbe
sale or use of another, it i* still an authority
eouplpd with an interest, and survives. 1
Cainca's Ca. in Er. 10; 2 Peera Wma.)
In tbe American casea there seems to be lew
confusion and nicety on thla point, and the
courts have generally applied to the constrae-
tlon of auch powers, the great and leading
principle which applies to the construction w
other parts of tbe will, to ascertain and carry
into execution the intention of the testator.
When the power is given to executors, to be
executed in their official capacity of executon,
and there are no words in the will warranting
the conclusion tbat the testator intended, for
safety or some other object, a joint execution
of the power, a* the office survives, the power
ought also to be construed aa aurviving. And
courta of equity will lend their aid to uphold
the (lower, for the purpose of carrying into
execution the intention of the testatur, anrt
preventing the conaequenccs that might result
from an extinction of the power; and wh^re
there is a trust, charged upon the executors h>
tbe direction 'given to them ia the dis- I't^es
position of the proceeds, it is the settled doc-
trine of courts of chancery that the trust loes
not become extinct by the death of one of the
trvateea. It will be continued in the survivors,
and not be permitted, in any event, to fail for
want of a trustee. This is the doctrine ot
Chancellor Kent In the case of Franklin v.
Osgood. 2 Johns. Ch. 19, and eases there cited,
and ia in accordance with numerous decision* in
the English courts. 3 Atk. 714; 2 Pecre Wms.
102. And is adopted and sanctioned by tha
Court of Errors in New Vork, on appeal, in tbe
case of Franklin v. Osgood. And Mr. Justice
Piatt in that ease refer* to a class of cases in
the English courts, where It la held that al-
thou;:h, from the terms made use of in creat-
ing the power, detached from other part* 4rf
the will, it might be considered a mere naited
power to sell, yet, if from its connection with
other provisions in the will it clearly appears
to have been the intention of the testator that
the land should lie sold to execute the trust*
in the will, and sucb sale is necessary for ths
ptirpoae of executing auch trusts, it will be con-
strued a* creating a power coupled with an
interest, and wilf survive. Tbis doctrine Is
fully recognized by the Supreme Court of
Pennsylvania In the case of The Lessee of
Zebach t. Smith, 3 Binncy, OS. The court then
considered it as a settled point that if the an*
thority to tell is given to executors, virtuta
oflicii, a aurviving executor may sell; and that
the authority given by the will in that ease to
the executor* to sell, was to them in thatr
character of executors, and for the purpose of
paying debts, an object which is hiehiy favored
in the law.
Although the clauae in the will now under
consideration does not n*tne the executor* a*
the persons who are to sell the land, yet it I*
a power vested in them by necessary impli-
cation. The land is to be sold for tbe purpose
nf paying the debts, which is a duty devolving
upon the executors; and it fallows, a* a mat-
ter of course, that the testator intended Us
executor* should make the sale to enable tbsB
to discharge the duty and trust of paying ths
■II
Svmm CouBT ov tbu UnmB BrAns.
debta. Ur. Siigden, In hli Trektise on Ponera
(page 107), on the Authoritj of » caae dted
ii'uui ihe year liouki, layn it down as a general
nil" that ivhen a testator direrta bis land to be
sold for certain purpoeeB, without declaring b;
whoin the sale sliall be made. If the fund is to
be diatributcd by the executors, tJxtj sbull
hare, by Implication, the power to sell. And
this ti the doctrine of Chancellor Kent, In the
nse of IJaTOUX r. Fanning, S Johni. Ch. 254.
The will, iu that case, as in this, directed the
real estate to be sold for rcrtain purposes there-
666*] in specified, 'but did not direct exprets-
ly by whom the sale should be made; and he
held, as Lord Hardwicke did in a case some-
trhat aimilar (1 Atk. 420), that It »ai a
reasonable construction that the power was
given to the executors, that It was almost im-
pOMJble to mistake the testator's meaning on
that point. So, in the present case, It is im-
poMible to draw any other conclusion than t)jat
It was the testator's intention that the sate
should be made by bia executor*. Jaekioa v.
Hewitt, 16 John. 349, is a case very much in
point on both questions. That the power in
this ease is coupled with an interest, and sur-
Tive% and that hy Implication, it ie to be exe-
entcd by the surviving executor. The testator,
•ay the court in that case, directed that in case
of a deflclcney of his personal estste to pay
fail debts, some of his real estate should be sold,
without naming by whom; and one ot the ex-
ecutors only undertook the execution of the
will, and sold the land, and the court held that
this was a power coupled with an interest, and
might 1» executed by one of the executors, it
being a power to sell for the payment of debts.
It haa been thought proper to dwell a little
more at large upon the construction of this
will, and the power given to the executors to
sell, than would have been deemed necessary
had it not been supposed and urged at the bar
that the Ckiurt of Appeals in Maryland had
given a different construction to t)ie will than
the one we have adopted. This will was
brought under the consideration of that evurt
in the ejectment suit for the recovery of the
Dulin farm already referred to (4 Gill A, John-
■on, S23) ; and it is true, the court does say
that the power given in the will to sell is a
mere naked power, But this waa not the main
eint before the court. The question seemed
turn upon the demises in the declaration,
and whether the legal estate in the land was
in Un. Peter and her children, so as to enable
then to maintain an action of ejectment. As
the clause in the will directing a sale of the
land did not direct it to be made by the ei-
wutora, it became a question whether the ea-
eeutors had that power by implication; or
whether It was a ease coming within
the Maryland law of 17Sfi, which provides
that If a person stiall die leaving real or
Sersonal eatate to be sold for the payment of
ebts, or other purposes, and shall not appoint
Si person to self and convey the property, the
Cluuicellor shall have the power to appoint a
trastse for that purnose. And the court
•eemed to think the will now In question came
within that provision. But this case, however
respectable tiia authority may be, cannot be
Ml*] admitted to control the decision In 'the
OH* BOW before the oourt, wher« the lands ia
■M
question He In the ctty of Washington; and «t
with an interest, which aurvives, and may be
executed by the surviving executor.
The next inquiry is, whether there Is aaj
subsisting debt due from the estate of David
Peter to the banks. It is contended, on tha
part of the complainants in the court below,
that this debt has been extinguished by th%
notes given by the executors, and no longer re-
mains a debt due from the estate. There ia na
pretense that these debts have, in point of fact,
been paid; and If not, the trust has not been
executed, and the land still remain* ehatgad
with it. If the executors have paid the debt to
the banks, or the bank* have accepted tbeir
notes in payment in place of the note* of the
testator, so that the executors became the debt-
ors, and personally responsible to the banka,
tlie only effect of this is that the executors be-
came tbe ereditoiB of the estate instead of the |
banks, and may resort to the trust fund to
satisfy the debt. 2 Peere Wms. 684; note; T '
Har. & John. 134: 4 QUI & Johns. 303: 2 Pick.
MT. !
But there is no ground for considering the
debt of the banks extinguished. David Peter,
at the time of his death, was largely indebted
to these bank* upon indorsed notes dis-
counted by them; and to prevent these
notes from lying under protest, an ar-
rangement wa* made between the banks
and executor* to substitute notoa drawn
by Sarah Peter, and indorsed by Leon-
ard H. Johns and George Peter; and the
note* of David Peter were retired by tlii*
substitution, and passed as credits to the exe-
utoTs in tbe Orphan's Court as paid, when ia
truth and in fact they were not paid. The
substitution of the notes of the eiecutora was
only by wsy of renewal, and to comply with
the rules of the banks, and thus to continue the
debts by the indulgence of the banks, until the
executors should be able to make sales for tbe
payment of them, without any intention or
understanding by any of the parties that tha
substituted notes were offered or received ■•
payment of the debts. That such was the ar-
rangement made respecting these debts, snd aa
understood by Beverly at least, is established
by the most clear and satisfactory evidence;
and there is good reason to believe that this
was well understood in the family by all tha
children who were of an age luffictent to 90-
derstand the business and eoncema of the ea-
tate. This arrangement under such circum-
stances cannot, in any manner, be eousidered
an extinguishment of the debt. The law on thie
subject is well settled, and the 'princi- [*S<B
pie well and succinctly laid down In the case
of James 7. Hackly, IB Johns. 277. It is. amy
the court, a settled doctrine that the accept-
ance of a negotiable note for an antecedent
debt will not extinguish such debt, unless it ia
expressly agreed that It ia received aa paymenL
It is unnecessary la tbe present case to carrj
the principle so far as to say there miut be aa
express agreement for that purpose in ordar
to operate aa payment, but the evideuee muat
certainly be so clear and satisfactory sa to
leave no reasonable doubt that ouch wa* tba
intention of the partita. And tbs ruU to tbia
P«Hn I*.
Fxm KT AL f . Bbtblt r mu
•it«nt ia Mttted hj tka moBt unquestioned tn-
tbotity. II Jofaiu. 613; 14 John. 404; i Gill &
Johns. 4r>3i T Har. & Jolms. 92.
In the originkl bill, the complaint agaioit
the executor* for not having collected the bal-
ance of the purchase money can bariilj' be con-
udered a charge of negligence, and much leai
of tbnt grosa negligence which ought to make
tbc executor pcraonatlj reapansible. It barely
allege that this balance ought to have been
nceived if the execulors had ont; used reason-
able diligence In regard to the collection. But
after the answer and explanation of the execu-
tor to thia charge came in, an amended bill waa
Sled, charging tbe executor with gross negli-
gence in this respect. This teemed to be an
after-thought, and rather a atate allegation.
But the answer and explanation ol the execu-
tor, uncontradicted in any manner, fully exon-
eratea the executors from all culpable negli-
gence. MagTQder was proBecutcd for the bal-
ance of tbe purchase money, he became inaolr-
ent, ftnd no further payment could be obtained
from him. An ejectment was brought to re-
cover poBHcssion of tbe land, that it might be
wain sold; the cause was tried in the County
Court, and removed to the Court of Appeals,
where tbe judgment was reversed, and a pro-
cedendo awarded. This business was pnnci-
palTy under the care and direction of the cora-
plainaJit, Beverly, and if there was any want
of due diligence in prosecuting the suit, it la
chargeable to him, and not to the executor.
And besides, the executor in the whole of this
bnaines* acted under tbe advice of counsel,
whicb shows saliafactorUy that he acted in
entire good faith, and would go very far to ex-
onerate him from the charge of negligence,
eren if there were circumstances leading to a
contrairy conclusion. 2 John. Ce. 378.
From this view of the case, we are satisHed
that the direction in the nill of David Peter to
sell k portion of his real estate for payment
of hia debts, created a power coupled with
an intereat that aurvivei. That the surviving
executor Is, by necessary Implication, the per-
569*] Ron 'authorised to execute that power
mnd fulfill that trust. That the debt due the
iMnka liaa not been extinguished by the notes
tnfcetituted by the executors as renewals in the
bank, or tbe estate of the testator in any way
disehiarced from the payment of the debt.
That the executors are not chargeable with
negligence or misapplication of the personal
estate that ought to render them personally re-
■ponaible for these debts; end that no reason
h*a been shown why satisfaction of these debts
■bonld not he had out of the lands appropriated
by tho testator for that purpose.
It remains only very briefly to notice the ex-
aeptiona whieh were flied to the report of the
sioditor, and most of these have been disposed
from the report of the auditor upon the
eonnta exhibited by the executors and ttllowed
bf him. there has at all times been and now is
a considerable balance in favor of the execu-
toi« againat the estate.
WHh respect to the first and secofld excep-
Htmrn, It ti tnie that the auditor has not
A^rgtA the exefMitora with the Inventories;
■■d be OB^t not, aeeordW to the principles
t X-d.
rn which he make* hit atntemeBt— tbe object
the reference to him being to ascertain
whether the executors were indebted to the
estate or the esiale to them — and for this pur-
pose he examined the several statements made
by the executors with tbe Orphan'a Court, and
extracted from them the aeverat sums received
and paid by them. In the account with tha
Orphan's Court the executors an charged with
tbe amouut of the inventory of the personal
estate, both in tbe District of Columbia and in
Maryland; and as far as any proooeds of tha
personul estate came into the bands of tha
executors, they are charged in the statement of
the auditor, but they are not oharged with
wliat tbe widow and heirs retained in their
hands, and for their own use; and this was oor-
rect, according to the provisions in the will, for
tbe maintenance of the family and the educa-
tion of the. children.
The C4,5S2 mentioned in the third exception
were properly omitted in the statement of tha
account against the executor. It was a portion
of that part of tbe estate whieh was put into
the hands of the widow, attached to the dwell-
ing-house, and with respect to which the tes-
tator diiected that no appraisement or valua-
tion should be made.
The fourth and fifth exceptions relate to
the notes taken from Hagruder for the bal-
ance of the purchase money of tbe Dulin farm.
■The e>:ecutors, as bss been already ('filU
shown, are not chargeable with those notes.
No negligence is imputable to them which
ought to make them personally responsible.
No title has been given for the farm, and it
may yet be reaortMl to for payment of this
balance of the purchase money.
The auditor has properly given credit to tho
executors for tbe taxes on the real estate.
There is no suggestion that the taxes were not
due and paid by somebody. The amount ap-
pears to have been paid according to the ac-
count of the register, and it is fairly to be pre-
sumed that they were paid by tbe executors,
although no regular vouchers are produced for
such payment. This may be accounted for, in
some measure at least, by the circumstances
stated in the answer of George Peter of tbe
destruction by fire of the books and accounta
of his co-executor, Leonard H. Johns, who had
the principal management of the estate.
The allowance of $6,000 for the expenses of
the family for twelve years must certainly be
a very moderate charge. It was a proper sub-
ject of inquiry for the auditor, and there is no
grounds upon which this court csn say the
allowance is exceptionable. From the nature
of the expenditure for the daily expenses of
the family, it could hardly be expected that a
regular account would be kept, and especially
under tbe large discretion given by tbe testator
in his will in relation to tbe maintenance of bis
family.
The amount paid by the executors for tha
curtails and discounts on the notes running in
the banks were properly allowed to their crffilit..
I Thene were debts due from tbe estate, and
whatever payments were made were for and
, on account of tbe estate.
, These are all the exceptions taken to the ra-
I port of the auditor, and we think they wera
', all properly overruled by the court below.
• >*
no
SuFiBUB Coinrr ov tub Umko Statcs.
Bat the court erred in deereeinK ■ perpetumr
injunctioD.
The decree of the Circuit Court must i.ccord-
inglj be reversed, the injunction diuolvcd, and
the bill of the complainants diemisaed.
This cause came on to he heard on the tran-
script of the record from the Circuit Court of
the United States for the District of Columbia,
holden in and for the County of Wa^hingtoQ,
and n'sa ar^ed bj counsel; on consideration
whereof, tt is ordered, adjudged and decreed
fay this court, that the dccrcB of the said Circuit
Court in this csuae be. snd the same is hereby
51 )*] reversed and annulled. And 'this
court, proceeding to render such derrce >s the
■aid Circuit Court oUKJit tn have rendered in
the premises, doth order, adjiKlge and decree,
that the injunction in this cause be, and the
same is herebj dissolved; and that the bill of
the complainants be, and the same is hereby
dismissed; and that this cause be. and the
same is hereby remanded to the said Circuit
Court, with directions to said court to carry
this decree into elTect.
a72*] "SAMUEL DICKTNS. Plainliff in Error,
WILUAM M. BEAL.
Bill of Exchange — drawer without fund* in
hands of drawee — proteatt when nccenanry —
evidence — di ligence.
Bills ot eicbBDge wm driwi
elwoofl, Kadlion Coiinly, Tenni
W. & k at New Orlfnim, ihe
tliDdi Id Ihe bands of Che dr
J U. 4 T.,
ti'd bj 1
<uld 1w
■Dd iDdorser, reildlog Id Nr
DfgotUtea wltK tbc b ...
Nils were refused iccfptaDce b> W. A K : were
protested tor DanBcceptanre on tbe laoie day. end
Dollee of tbe Mine wsa given by the noiary ta tbe
drawers and indorser, br letters put IdIo the nam-
office, addressed to (heiD at [laielwood, Mndlnon
Oountr. Tenneasee: tlie nolary. as wss lestlHi'd.
Dot knowlns of sny olber renldeDce ot tbe partln)
than that designated In tbe captloo or the bUl, and
that he bad tssde Inquiry for further Infurmalloti
Ot persons likely to know. Kvldence was given to
■bow tbet letters from New Orleans for Haiel-
wood. Id MndlsoD County, Went Tenuea^iee, WfTe
sent to Nnshvllle. and tbnt from that pDslofnce
tbey were sent to Spring; Creek pOBt-ofBee. That
D.. tbe drawer of tbe bllla and tbe Indorser of the
other, was the postmaster at Spring Creek, Msdt-
•on County. Tenneseee. Hairlwood wns nnai-
flprtng Creek post-olTlce. If was also testined that
letters from New Orleaoi (or the Western District
« Tennessee come to Nashville for dlsIrlUutloD
would be delivered at Memphis a
thence. The letters ot W. A F.
" ~ b Bank ot the Cnlted 6
were offered ._ , „.
bills, to show that they were enti
tlce ot tbe protest of tbe bills. It was held that
tbe Circuit Court property rejected this evidence,
■s tbe letters did not apply to and bad no counec-
tlon with the bills wblcb were tbe SDbJecl of this
An estflbllabed exception to tbe general rule that
notice ot tbs dishonor of a bit! must be given to the
drawer, la where he haa no funds In the hands of
Nora. — Notice of demand and nonpayment of
note or bill, wben and how given. Note to G L. ed.
p. S. 21H. Certinrste of notary, evidence of what
facta. NoU (0 2 L. ed. O. B. IDl.
Banking cnaloma aa to demand and notice,
mote ta St L.B.A. 441. ^
the drewee. bat of this exception there arc w^
nodlflcatloDe. It the drawer has made, or la mak-
ing a cODBlgDment to the drawee, and drawa bcfois
the consignment comes to baud : It tbe goodi arc ts
transitu, b.it the bill of lading Is omitted to beaeat
lo the consignee, or tbe goods were lost : If tht
drawer has any funds or property In the bands «t
the drawee, or tbere la a fluctuating tialance bs-
tn-een them in the course of Ibelr traaaaetlonB, or s
reasonable expectation that the bill would be paU.
i>. 11 ibe draiver haa been In the balitt ot aeceptbii
t U a fair
awer bai a
aldered aa jnatlfled tn drawing, ao fat
a rlKbt lo draw: that "the trangsrl
denominated a fraud, tor Id auch ca
eommi-rclal tranaactlon. la nblcb tbe
reasonable eiiwrtallon that his bill «
and he In entitled to the same notlc. _ _.
with funds, or authority lo draw without runds."
Uut unless he draws under some such clrcuis-
slances. bis drawing without funds, •prop- [•B73
erty or authority, puts the transaelton out ot tbe
In DO wlae suHer by the want of notice of tbe dla-
, .. •.._ drstta, that U la deemed a aaclrai
torn
N
be made o
Notice of tbe dlabonor ot bills ot eich
two wayi: 1. That Ibi
?Bted for nonacceptanc
bllla had
ig notice' thereof to
■ -nae tbe legal pre-
tbe parties on the bllla ;
Ity pront that tbe noflce'aclually'nime lo'balid b
proper time, thoucb tbe letter contalnlnB the >o-
(Ire was not properly directed, or seat l)y tbe moat
.■I .-.III. JUS OT- dlitct route. Tbe facts of notice,
and llR rcccrUon In due time, are the only matters
rpHleii.-iI to Ihe dranrr or Indorser of a diahonored
such notice la imnmtrrlnl. for all the objects to be
nnswered by Ita rrci'ptlon. It Is enua'lv available to
Ihrm. To tbe bolder It Is Immsierlat whether r-
I from due dlllgenc
tbe legal presump-
.^iiue, whkh supplies the
ind (a binding on a ]ary
llshed by direct evidence, or auch
will la law justify tb.'m In dnw
Since Ibe case of Buckncr v.
[.ear. 2 Peters. 5NU. BHl. decided
rindlej and Vas
1 rinrtrln. of thW
ot the
Ibis respect they are to be considered as aia
elgu to each other, thoiigh they are otberwl
fl'T tbe purposea n( their federal Const
Among these purposes are "
f their di
Liona. becomes ai
Iccldlng on what
deUlls of the I
In which the
elapaea from 11
itltutlOD
It tbe 0
ctlng within tb«
mportant to a court and lury la
1 regal diligence In giving notice
ce of Ita reception,
ice Id Ibe balder ot a bill If *-
itilbute<l
dence la unlforml
It Is aUlTlclen'
protested toi
nolory tes"'
oen^e. will
proving Iti
alTarded, but be la
if dlllsenea
8ucb cvl-
testlflea he but nntlce thereof In
■■■ lut prodnclng " ■ -
What will be considered a
n~ notlee nf the dishonor of s bill of eirbsng_. _
Dlder^snd tbe drawer or Indorser ot •
copy of the notice or
dlllgeDce Id «1v-
gence, which ts In
notice. vhPtber gl'
The queatloD of thslr liability ^de-
cs sea tantamount ti
BT«'l-
T«*l" IN error to tha Circuit Court of the
1 United St&tei for the Diitriet of
West TcnncMee.
Thie r&K mi aubraitted to the court, with-
ont argument, bj Ur. Porter and Mr. Crltten-
fcn.
Mr. Justice Baldwin dellTered the opinion of
the court:
Samuel Dlekine, the defendaDt, end Jeuv
Taylor, were partners, tranM.cting buiiness at
Hacelwood, MadUon County, TeDDeasee, whicli
waa the reBidence of Dickenl. On the Bth ol
December, 1832, Taylor drew a bill of exchange
10- 11,448, on Wilco» & Feron, New Orleans,
ill favor of Dickina, payable on the lit of
Hay 1S34, which Dickina indoned to the plain-
titr On the lame day Dickina & Taylor drew
two other bills on the farmer bouse, Id favor
of the plaintiff, one for $2,802, payable the 1st
of May, the other for tl.SOO, payable tbe 1st
of April, 1S34. The three bills were dated at
Hazelwood, Madison County, Tennessee i pre-
sented to the drawers on the 3d of June, 1833,
for acceptance, which, being refused, they were
nroteated for nonaeceptance by a notary pub-
lic, who, on the same day, gave notice thereof
to the drawer and indorser of the first, and the
dr»wers of the other two, by letters put into
the post -office, addressed to them at Hazelwood,
aforesaid. It was testified by the notary that,
not knowing of any other residence of the par-
ties than that desifmated by the caption of the
bill, he forwarded the notices accordingly, after
inquiring of persons likely to know.
It appeared that all the bills were drawn
without funds or authority to draw, nor was
any evidence offered to show that either Diek-
fna or Taylor had any reason to think that
their bills on Wilcox k Feron would be honored,
except two tetters from Wtlcox ft Peron, dated
the lat of December, 1B31, addressed to the
rashier of the Branch Bank of the United
States at Nashville. In one they say, "Messrs.
Dickins and Taylor are authorised in making
negotiations, to value on our house in New Or-
leane, for say 10,000 dollars; in such form and
at such time as they may think proper, and
same will duty be honored." In the other,
"out friend. Colonel Samuel Dickins, is au-
thorized in negotiating with your inatitution,
to value on our house in New Orleans, at any
time, for aueh anms as he may think proper;
and same will be dnly honored by W. and
ftTS*] 'These letters were tn the handwrit-
ing of Wilcox ft Feron, and In the possession
of Dickina; they were offered to show that he
waa entitled to regular notice of the protest of
the hills drawn by Dickins ft Taylor, but were
rejected bv the court as incompetent.
The plaintiff resided at New Orleans. Jack-
aoB is the county town of Madison County,
Tennessee, about fourteen miles from Hazel-
wood, the defendant's residence, which is on
SprW Creek about half or three fourths of a
Bule nom a post-office called Spring Creek
poat-offlee, of whidi tho defendant was post-
mutw umI di'd hi* bnaintst there la June, 1833. ,
V. Bmu. K»
Thli was knows to pMntiff, who, abont and
Iwfore the Id of June, 1SS3, dlnetad a letter to
lefendant at "Haielwood, Spring Creek, Maill-
-00 County, Tennessee," and one to "Colonel
:^amuel Dickins, Postmaster, Spring Greek,
.\jadisoD County, Tennessee." At tlie trial, the
ulaintiS offered to prove by the postmaster at
Nashville and hla deputy, that that place waa
ihe distributing office for letters from New Or-
leans intended for Weit Tennessee, iacludlns
ihe County of Madison; that in June, 1831,
hey luiew defendnat waa postmaster at Spriiu
Creek; that if In diatrlbuting the mail they had
-een a letter addressed to defendant at Haiel-
lood, they would have sent it to Spring Creak
poat-office. Also to prove bv the post-ollloe
looks at Nashville that on the 13th of Jane,
1833, the New Orleans mail arrived at Nash-
ville, and on the 14th a package was sent to
Spring Creek poit-offlee, which had coma to
Naahviire for distribution, and was rated at U-
ty cents postage.
To this evidence it was objected, bj the de-
fendants, that inasmuch as the putting a letter
into the post-ofSce containing notice of a pro-
test, properly directed, forma a eondusive
legal pt«sbmption that snob notlea was duly
given and received; it was also a legal pre-
sumption that ths notice went to the place di-
rected and no other, and that the ptaiatiff was
concluded from showing either that the destina-
tion of the letter was changed on its passage,
or waa in point of fact sent to any other place.
The court overruled the objection, and the
evidence was received.
It was also testiSed that letteta from Or-
leans for the Weatem District of Tenneasea
come to Nashville for distribution, unless there
was a river mail, in which case they would be
delivered at Memphis and be distributed
thence; other evidence waa also given in rela-
tion to the course of the mail, and the nsage
of the post-offlee at Nashville, which Is need-
less to recite. In their charge to the Jury, the
court instructed them that the usage of a dis-
tributing olflce in conformity 'to law, [*i79
and the authorixed regulations of the depart-
ment, and in the disctiarge of the otDeiaf dn-
Jes of the ofHcers emptnyed, mi^t properly
be taken into their consideration of ths qusi-
tion submitted to them; which waa whetbar,
from the usual course of the mail and tba
usage as proved, the notice of the protest would
neceeiarily reach Spring Creek post-oftiae, af
would fail to reach it, or be carried to aome
other olBce; in the &^ ca^e, the court ia-
atruetcd them that the notice was aerved on tha
defendant, but in the other the drawer was dis-
charged unless actual notice was aerved.
Several instructions were prayed by the de-
fendant, which the view tatcen by the conit
renders it unnecessary to consider, as they re-
late to matters not material to the cause; and
if given either way, they could not affect the
right of either party. One, however, desema
particular notice, which was, that the evi-
dence of the notary was not sufBoiait proof
that a legal notice was sent; but that he ought
to have set ont a copy of tbe notice, or stated
its contents, in order that the eonrt might
iudge whether It waa sufficient.'* The eourt
refused to give this instruction, hut stated that
it mi{^t nM0Mt>l7 b* Infarrad from the nat-
m of the notice, uid from the fact tli>t no-
tice w*a given, a* Btated in the deposition.
ExceptioiiB were takea to the decieion of the
court on the queations of evidence and the va-
rious matterB given in charge to the jury.
I'lie first question which arieee ia on over-
ruling the admiesion in evidence of the two
lettcra from WiJcox & Feron to the cashier of
the brant^ bank at Nashville.
It wu in full proof that Taylor & Dickins
never had a dollar io the hands of Wilcox &
Feron to pa; any draft drawn on the latter,
nor any monej or other property iu their hajida
to meet the bills at the time thev became due,
or any funds in their hands when presented
mnd protested for nonacceptance. No proof was
offered that DicUins & Taylor, or either of them,
had made an/ consignments to Wilcox & Feron
as an expected or anticipated fund on which to
draw. It was also proved that Jesse Taylor
had neither funds nor property in the hands of
the drawees when his Dill in favor of Dickins
waa presented for acceptance, or when it be-
came due; and that they had received no ailvice
of such bill, and that the two hills of Dickins
A. Taylor drawn in favor of the plaintilT, one
for $2,802 and the other for {1,608, balanced
their account on his liooks. It is clear, there-
fore, that this transaction waa not a negotia-
tion within ths meaning or intention of these
ilT] letters; 'they evidently referred to ne-
gotiations at the bank, or within the sphere of
its operations in the commercial transactions of
the firm; the one referring to Diclcins alone
was expressly limited to negotiations with that
hank. The remittance of these bills to New
Orleans, in payment of an antecedent debt to
the plaintilf, was in no sense of the term a ne-
gotiation of them, and woe so utterly incon-
sistent with the evident object of the letters,
that the most remote expectation could not
have been entertained that they would have
been accepted.
A mercantile house conducting operations at
Uemphis and New Orleans would, in the course
of their business, lend their credit in antici-
pation of consignments, while they would re-
fuse it to pay the debts due to other persons;
these con si delations could not escape the con-
sideration of Dickios &, Taylor, when they
sought to make Wilcox &. Feron their creditor,
instead of Beal, by such a fraudulent abuse
<rf the letters of credit. Had these bills come
to the bands of an innocent holder in the
course of trade, with a knowledge of these
letters, the case would have been dilTercnt; or
if the bank had negotiated them, there would
have t>fen ■ reasonable expectation that they
would have been honored, but Dickins & Tay-
ior could have entertaintd no such expectation.
The letters were, thcreftre, properly excluded,
and the case must be considered as if they had
not existed.
An established exception to the ceneral rule
that notice of the dishonor of a hill must be
given to the drawer, is where be has no funds
In the hands of the drawee, but of this excep-
tion there are some modifications, i Cr. 154; I
D. ft E. 405; 2 D. & £. 712; 12 S. 176; 20
J. B. 149, ISO.
If the drawer has made, or is making a
MHulgnment to the drawee, and d: i.-i'—
the eonaignment '~ ' — ■"
■«4«
I to hand. 12 B. 175.
If the goods are in transitu, but the bill of
lading is omitted to he sent to the consignee or
tlie goods were lost. 16 E. 43.
If the drawer has any funds or property in
the hands of the drawee, or there is a fluctuat-
ing balance between them in the course of their
transactions (16 E. 221), or a reasonable ex-
rctation that the bill would be paid. 4 SL A
229, 230. Or if the drawee has been in the
habit of accepting the bills of the drawer
without regard to the state of their accounta,
this would be deemed equivalent to effects. (IS
E. 175.) Or if there uaa a running account be-
tween them. 16 E. 221.
In all such cases the drawer is considered as
justified in drawing, *as so far bav- ['STS
uig a right to draw, that "the transaction can-
not be denominated a fraud; for in such a cbm
it ia a fair commercial transaction, in which
the drawer has a reasonable expectation that
his hill will be honored, and he is entitled to
the same notice as a drawer with funds, or au-
thority to draw without funds." 16 E. 220; It
E. 44.
But unless he draws under some aach dr-
cumstaucris, bis drawing without funds, pr<^
erty or authority, puts the trani^Bction out of
the pale of commercial usage and law; and a*
he can in no wise suffer b,y the want of doUob
of the dishonor of bis drafts, that it is deemed
an useless form. "Notice, therefore, cas
amount to nothing, for bis situation cannot be
changed." In a case where he has no fair pre-
tense for drawing, there is no person on whom
he can have a legal or equitable demand, in
consequence of the nonpayment or nonaoeept-
ance of the bill. This is the rule as laid down
by this court in French v. The Bank of Colum-
bia, 4 Cr. IE3, lei, on a very able and etab-
oiute review of the thrn adjudged cases; which
Is fully supported by those since decided in
England, and in the Supreme Court of New
Vork. The case of the defendant falls clearly
within the rule applicable to bills drawn with-
out funds, or any bona fide, reasonable or just
expectation of their being honored, and notioe
of their dishonor was not neceesary. The case
requires no opinion whether notice of the dis-
honor of Taylor's bill in favor of Dickins waa
neceEsary, and we forbear to express any.
The next Question which arises is on the ad-
misf^ion of the evidence of the postmaster nt
Nashville, and his deputy, in relation to the
course of the mail, the usage of the office, and
the facts to which they testify.
We are at a loss to perceive any plausible ob-
jection to the evidence which was received by
the court, on tlie aasuniption that notice of the
dishonor of the bills must be made out by the
plaintiff, which could be done in two ways. 1.
That the bills had been duly protested for non-
acceptance, and due and legal diligence used
in giving notice thereof to the parties on tha
hills, in which case the legal presumption of ite
receipt in time would attach. 2. By proof that
the notice Bctiially came to hand in proper
time, though the letter containing the notice
was not properly directed, or sent by the most
expeditious or direct route. The fact of notice
and its reception in due time are the only nst-
tera material to the drawer or indorser of a dia-
bonored bill; the manner or place in which 1m
teceives 'such notice U immaterial; for {*6TS
DiCKINB T. BBAL.
fTfl
ill the ohjpcts to bt «o«wered by it* reception,
tt U e<|ual1y avntlsble to tliem. To the holder
it is immaterial whether the evidence of notice
consists in the lego.] presumption arising from
due dilippnc*, which BUppliei the place of spe-
cific eviiience, and is binding on a jury as proof
of the fact of its reception, or it is estab-
lished by direct evidence, or such circumetancei
as will in law justify them in drawing the fn-
ference. 2 Peters, 132.
Since the case of Buckner v. Findlef and Van
Leer, 2 Peters, SSH, 591, decided on great con-
sideration, it has been the established doctrine
of this court that a bill of exchange drawn
In one of tbe States of this Union on a person
in another. Is a foreign bill, and to be treated
ss such; and that in this respect they are to be
consijered as States foreign to each other,
though they are otherwise as to all the pur-
posea of their federal Constitution. Among
these purposes are tbe establishment of post-
iflieea and post-roads, the regulation of which
aas lK?en delegated to the federal government,
and is exercised by their laws and the regula-
tions of the I'ost-oflice Department conform-
ablv thereto. On these depend all the com-
munications between the States by mail; the
time of departure from ditlorent places; its
route, ptaee and course of its arrival and dis-
tribution. The usnse of the officers employed
in the various details of the operations of the
department, when acting within the line of
their duty, as prescrihed by law and regula-
tions, become all-important to a court and jury
in deciding on what is legal diligence in giving
notice, or what is evidence of its reception.
It is legal diligence in the holder of a bill if
be avails himself in time of the means of eom-
muni.'nliug notice which are thus a&orded, but
he ia not answerable for any defects in the
outline or details of the regulation of the
mails, for the route in which the letter is car-
ried, the time which elapses from its deposit
in the office and delivery, or the mode of carry-
ing or distributing the mails; but it is proper
that he should give evidence of all these mat-
ters, as well to repel the imputation of laches
if the letter does not come to hand, or not in
due time, as to prove its regular delivery, if
there should be any doubt as to the use of
diligence tn the direction or deposit of the let-
ter. Such evidence ia uniforraily received in
cases arising on the notice of dishonored bills.
The next question arises on the prayer of
the defendant to instruct the jury that proof
Ihiit the bills were protested and notite thereof
580*] 'put Into the post-office, was not suf-
ficient, without producing a copy of the no-
tice of proving its contents.
In Lindcnberger r. Beall, the notary testified
that notice of nonpayment was inclosed in a
letter addressed tn the defendant at H., and
put into the post-office at G.: he had no recol-
lection of these facts, and only knew tbem
from his notarial book and the protest made
out at the lime, from which, and hia invariable
practice, he presumed he had done so. This
waa held sufflcient proof of such notice, and
thkt it was unnecessary to give notice to de-
fendant to produce it. 0 Wheat. KM, 106. In
Nichola v. Webb, the notary waa dead, but on
s mamorandum on the margin of the protest. It
waa itated in his handwriting, "Indorsee duly
notified in writing t9th July, IS10, the laat
day of grace being Sunday the 18th;" which
was held competent proof of notice. 8 Wheat.
326, 330 In this case the protests were pro-
duced at tbe trial, and the oath of the notary
positive as to the fact of notice; this is entire-
ly equivalent to an entry on his books, proved
only by his handwriting after his death, or his
belief arising from the fact of having made
such entry, connected with his uniform usage.
It must therefore be taken as settled law thftt
such is sufflcient proof that the notice required
by Isw was given. It remains to consider
whether the letter containing the notice was so
directed and deposited in tiie post-ofBce at Ch--
leans as to comply with the law.
In cases of this description, tbe true question
is whether due diligence has been used by the
holder of the bill, not whether he has given, or
the defendant has received notice; both are im-
material, if reasonable diligence has been used.
This consists in giving notioe, if, after the
usual and proper inquiries are made, tt Is prac-
ticable to give it; but if, when this is done, the
holder or notary cannot give the notice person-
ally, where the parties reside in the same place,
or does not knnw where to direct it by mail,
the in(juirj| is diligence, without giving notice.
After inquiriug from other parties to the bill,
and examining tbe directory, if the party's resi-
dence cannot be found (3 Camp. 283); if on
calling at bis residence, or place where he
transacts his business, he Is not to be found, or
any other person who can receive notice, it may
be left there; or, if his house of business or res-
idence Is locked up, and on audible knock-
ing, no one answers, or the party has changed
his former residence or removed to the country,
no notice is necessary. 9 Wheat. 699; 2
•Peters, 102, 105, 129; 6 D. & R. 606; ['581
20 J. R. 172. and cases cited.
Where the parties do not reside in the same
place, diligence consists in sending notice by
the first mail of tbe day of protest. (2 Wheat.
273; 9 Peters, 45.) This is all that is neces-
sary, if the letter containing the notice is
properly directed. 4 Wheat. 438. If the resi-
dence of the party appears on the bill, the no-
tice of protest, etc., must be directed there [12
I^ast, 433) ; if it does not so appear, then rea-
sonable diligence must be used in making in-
quiry for his residence, and reasonable time
will be allowed to give notice after ascertain-
ing it; this has been held in case of notice to
an indorsee in April, of a protest in October
preceding. Wyghtwick's Ex. 76, 77.
When all the facta arc ascertained, diligence
is a question of law. Wyglitwick, T6; 1 Peters,
5S3. If the evidence is doubtful or contradic-
tory, it is for the jury to decide (7 Peters, 290] |
but in either case, it turns on what is the usage
of the place (S Wheat. 6ST), the habits of men
of business, the kind and mode of inquiry
usually made in similar cases. 2 Burr. 609;
2 H. Bl. 505; 3 B. & P. eoi; 20 J. R. 174.
Thus a bill drawn by persons residing in
Pctersburgh, Virginia, on a house in New
York, and dated there, being protested, a clerk
of the notary made inquiry at the banks and
elsewhere, and on being informed that the
drawers resided at Norfolk, directed one notice
to them there, and put another into the post-
office in New York, directed to them there, it
Ul
SUPIBUK GOUBT or THK URITED &TATBB.
WBS hdd ioffleient. 1 J. R. 294, 290; Ctutp-
mna t. Lippincott and Purcell, dted, 13 J. R.
493; IB J.R. 220; 20 J. R. 174.
If A bin Is dravn dated "Manchester" (or
"Londaa"], without Aay other direction, no-
tice of protest direct«d to tbe drmwer ftt Man-
dteater waa held good, on the preaunption tha^
It would reach him if bo directed. 1 R. ft M.
24D, 250. Notice directed to the reiidene* or
how of business of tlie party i* aufficicnt; the
holder ia not bound to show that notice is
brought home, but only to amploy the usual
mode of conveyance, and the rules of diligence
to which he is held ought not to be such as will
tend to dog the circulation of commercial or
negotiable paper by impairing the liability of
thoM who have put it into circulation. 1 Fet-
m, 083; 2 Peters, 102, 129. If an indorsee
live* within a reasonable distance of a post-
office, notice to him directed to him at bis red-
K82*J dence is good; as where *a note was
protested at Cincinnati, the notice was directed
to T. D. C, Campbell County, Kentucky,
though defendant lived on the south side of the
Ohio, two miles from Cincinnati and Coving-
ton, and three miles from Newport, the county
town; in all of which there were post-ofRces,
and his residence was well known to the holder
and postmaster. The putting the notice into
the post-office kt Ciudnnati was held suffldent.
2 Peters, 649.
The clear and conclusive result of these casea
is that as between the holder and the drawer
r indorser of a dishonored bill, the question of
tantamount to actual notice, whether given oi
not. Hence, it becomes useless to examine in-
to tbe instructions prayed for by the defend-
ant at the trial and refused by the court, In
relation to the course of tbe mail after leaving
New Orleans, or the points submitted to the
Jury; for they could in no event avail tbe de-
fendant if the jury believed the evidence of
tbe notary. As these were foreign bills, tbe
proteats produced at the trial were in them-
selves evidence of the demand and protest, f
Wheat. 330. The oath of the notary that be
put the notice Into the post -office on the day
of protest, is competent and suffldent in law
to prove the fact; the only question for the
jury was his credibility. The notices were
properly directed, I. Because Haxelwood
the residence of the defendant, within a short
distance of a post-ofRce. 2. Tbe bills
dated at that place, and the direction of the
netices was to the same place.
As a matter of law, then, we are clearly of
opinion that due diligence was used by the
filaintifT when the notices of protest were put
Dto the post-oRice at New Orleans. His right
of action was then consumm'ated, and it can in
no wise be affected by the course of the mail,
or the arrangements concerning Its route or
distribution. We forbear any notice of the
other questions presented at the trial, lest by
doing so we should, by implication, be deemed
to think they could m any event affect the
right of the plaintiff, when no laohea could be
Imputed to htm or the notary. •
The Judgment of the Circuit Court la
with ooita knd interest.
>««
A wife havloB separated beiselF Ironi her ha>-
bSDd (or HI- treatment br him, apiilled Id tbe
County Court o( Prtncs George, Maiy ond. for «1l-
—'-'''- was alloved to her, pendente lite. The
- tbe wife a female nesra smve. and
- .. ..^sb[Ditos. bired out the slaved
nuu aiiEEwiinls. la conslderstlon of s sum of moD-
ST. and for otber con side rat Iodb, alie msnumlttrd,
by deed, the slave, and bpr two Infant children, tbs
eideit not tbree years old. Some time after ttw
agreement between the haiband and wife, a Una]
separation look place between tbem by ■ vprhil
agreement, f--*- '■ — — '- -■*' ■- —
ome other propcrtj
]U<tS t[
pa eh bad,
■Dd her
GDLiaren as nis maTea. tieia. vnai laey were free
by virtue ot tbe deed of maoumlsalou eieeated by
the wife.
This la a cose wbere a transfer of property must
be considered aa baving been made tar a valuable
CODS Id era Hon. It was given In Hen of alimony,
decreed by a canrt of competent Jurladlctlon, pen-
dente lite, and paasPd the property ai fully to the
wife as If tbe husliand had conveyed It to a third
penon for a valualiie coualderatloD. In regard to
tbst property, tbe wife la (□ be considered as a
feme sole : and her right to dlnpose of It tallowed
Construction of tbe Act of Aasetably of Mary-
land of 1796 (S Maiey's Laws. 860). relative {•
the manumlMloa of alavea.
Tbe terms of tbe Uaryland Act and the policy
tbe time tbe d
maniimlHSioii le problbited. But tbe
- r--- It would be ai
nt upon Ibe privileges of n
anted In this act. If^lt were
! tbe mannmisaloD of mnib
aJntalD tbi'mwh
I In (hir a dale!
nalbtaln them F
able. 1_ . _. ._
persons wbo would sludly
services they could render
ARreen — - *■- '■—
directly t
coo arm them._
wife, where the ion's Id em t1 on nt the transfer li _
separate Interest of tbe wife, yielded up bf her for
■he huaband'a beneOt. ot of their family: or wblch
jBS been approprlaled by him to bla uses, where
the husband t_s_ In a'alfuntloa to_mnke a ('BS^
s been Interposed to bold t
IN error to th« Circuit Court of the United
States for the County of Washington in tbe
District of Columbia.
On the 4th day of August, 1B34, tbo defend-
ant in error presented to tba Circuit Conrt ■
Pet«n lA
Joteph WKlIingsford appeared to th«
labpiEnA iBHQed on the petition, and put in %
plea denying the claims of the petitioner. The
case WKs tried by a jury at the Circuit Court
held in March, ISSIt. and a verdict was found
for the petitioner under the charge of the court,
from vhhh the plaintiff in error took thre*
billi of exceptions, and prosecuted, from tha
judgmeut of the court, this writ of error.
On the trial of the cause in the court below,
the petitioner produced a regular deed of mon-
■mission, duly recorded, executed by Rachel
Wailingsford, the wife of the plaintiff Jn error,
dated the 8th of September, 1826, by which,
Ud for divers good causes and considerations,
•Dd in con^deration of the sum of |150 paid
to her, she released the petitioner and her chil-
dren from slavery i the petitioner being at that
time nineteen years old, and her two female
children of the respective ages of three yeara
■nd five months.
The petitioner also proved that Rachel Wall-
ingsford resided in the city of Washington for
many years as a feme sole previous to the date
of the deed; that she had a suit for alimony
depending in Maryland against Joseph Watt-
ingsford, he residing in that State; and that
the court ordered her husband to pay her $120
ptv jemr as alimony, pendente lite; that some
time after that allowance had been made to
her, her husband gave the petitioner to her,
then about twelve years old, and some other
property, in diicharge of the order of alimony,
bis wife agreeing not to prosecute the claim any
further; that after the petitioner was so given
to Mrs. Waltingsford, she lived with her, or
was hir«d out in Washington, until the date of
the deed of mnnumisaion; that on the death of
ICra. Wallingsford, the plaintiff in en
ber and her children as his slaves.
The court permitted the deed of manumis-
rion to be read in cvideuee to the jury b^ the
eonnael for the petitioner, evpresBly leaving it
to Hm jury to say, or find from the evidence,
whether the title of the said Rachel to the said
negro Sarah Ann, at the time of the execution
ftSS*} *of the said deed, was absolute, or only
for the life of the said Rachel; and the court
taatnicted the jury that that question was open
for their consideration upon all the evidence in
the cauiie.
The defendant in the Circuit Court excepted
to the admission of the deed of maQumission
in evidence, and to tbe instruction* given to
The defendant, by his counsel, prayed the
eonrt to instruct the jury that if they should
believe from tbe evidence aforesaid (viz., tbe
•videnee itated in the first bill of exceptions)
that Mrs. Waltingsfoni held the petitioners by
rirtne of an agreement made between her and
«er hnsband without the intervention of ■ tnu-
tec, that aaid agreement Is null and void, and
sottid give no power to Urs. Watlingsford to
■lanunut tbe sfavea held by virtue of such an
agreement. The court refused to give this
instmctioD, ftad tha defendant axeaptod to the
WALUnOBtOUl *. AUBt. IM
The defendant prayed the court to laatraet
the juiy that if they should believe from tb*
' h<>ld ashis evidcnc! that an agreement was made between
the diiiendant and Mrs. Wallingsford, by whicn
she was to have tbe petitioners in lieu of being
•supported by hira as his wife; yet, if there was
no covenant on the part of a trustee, or some
one Dspable of contracting with the husband
that he should not be liable to the maintenance
of his wife, the same is null. The court re-
fused to give this instruction, and the defend-
uit excepted.
Tbe defendant prayed for the court to in-
struct tbe jury that if they should believe from
the evidence that an agreement existed between
him and Mrs. Wallingsford that he ahould
transfer the petitioner to her on condition that
she should relinquish all claim to alimony
against him, that then, should the jury believe
from the evidence that she did not comply with
this condition, and that she did prefer against
him a subsequsnt claim for eliinuny, that then
tbe agreement cannot be enforced agaiust the
defendant, nor can be be deprived of any of his
rights by virtue of the said agreement. The
court relused to give this instruction, and the
defendant excepted.
Tbe defendant then prayed the court to in-
struct the jury that if tbey should believe from
the evidence aforsanid that the petitioners or
any of them, at the time of the execution of
the deed of manumission aforesaid, were not
able by their labor to procure for themselves
Budicient food or raiment, with other necessary
req^uisites of life, then the said deed of manu-
mission as to them, or such of them, was inop-
erative; which instruction the court gave; and
also on tbe •prayer of the counsel tor ['BSB
the petitioners, further instructed the jury that
if they should believe from the said evidence
that the negroes above mentioned were of
healthy constitutions and sound in mind and
claimed . body, end that their mother was capable by la-
bor to procure to them sutHcient food and rai-
ment, with other requisite necesaaries of life,
and did maintain them, then such children are
not under the incapacity intended by the Mary-
land law.
The defendant excepted to the taat Inatnic-
• li. ad.
The cose was argued by Mr. Brent for the
plaintiff in error, and by Hr. Dandridg« and
Mr. Key for tbe defendant.
Mr. Brent contended that:
1. The court below erred in permitting the
deed of manumission from Rachel Wallingi-
ford, the wife, to be read in evidence as *t«ted
in the first bill of exceptians.
2. Because the court below erred in refusing
to give the instructions prayed for by the
plaintiff in error, in his second bill of eicep-
3. Because the court below erred in refusing
to give the Instructions a* moved for in the
third bill of exceptions.
i. Because the court below erred in refusing
the instructiona moved for In the fourth bill o?
except iona.
S. Because the court below erred In giving
the instructions prayed for by the petitioners
In the fifth bill of exceptions.
There is no denial that Rachel Wallingsford
» B4t
8up>BWB Comr or thb Uiirm Sr^na.
wu, At the time of the deed of manumission,
the wife of the plaintiff in error. There had
been do judicial BepRration, no divorce.
b it denied that the defendant In error waa at
ona period the slave of the plaintiff in error.
Th« questiona, then, which preaent them-
aalvea^ are:
1. Whether ■ wife leparated from her hua-
band can do any act bj deed which will hind
him at law and deprive him of his property,
without his express consent and authority.
£. Whether if a wife can so contract, yet ia
not the iutroduclion of a trustee necessary, and
are not her acts without the aid of a trustee
null and void.
If no contract is valid, If none can ha made,
then the plaintiff in error is right, and the
judgment of the Circuit Court must he
versed.
There is an absolute disability In a wife to
make any contract, or to execute any valid
deed. 16 Serg. ft Kawle, 00; Petersdorf's
6»7»] 'Abrid. 63, 66, 67, 65; Story's Con-
flict of Laws, 125. In all these authorities It
Is held that a wife cannot execute a contract
aeparately from her husband.
It is admitted that there are exceptions to
these principles, as whm the husband has
abandoned his wife, or has abjured the realm,
ahe ma^ contract. But these exceptions have
no application to the case before the court.
It cannot be said that the plaintiff in error
abandoned hia wife. She left him, and she re-
■iated every effort to induce her to return.
tSted, 2 Kent's Com. 100, 161, 176, 176; 4 Pet-
eradorf, 40, 41; 2 Har. ft Johns. Rep. 4B5.
The instruction given by the Circuit Court
that the ability of the mother to maintain the
children would be sufficient to legalise the
manumisBion of the infants, waa in direct op-
position to decisions of the courts of Maryland
on the statutes of that State.
For a considerable period there was an ex-
press prohibition by the laws of Maryland of
manumissions in any form. This was prior to
1706. It waa the settled policy of the State not
to allow any slaves to be set free. By the Act
of 1716 (ch. 44, sec. 22) alt negroes were de-
clared staves for life, and this law deprived the
owners of slaves of the right to give any one of
them freedom. Then came the statute of 1706,
which prohibits manumission of persons not
able to maintain themselves. This act makes
all deeds of manumission of such persons ab-
solutely void. But for the Act of 1TB6, no
manumissions could be made, and none are
valid which do not conform to that taw. It
euinot he contended that infants of three years
old and under have such ability. Cited, 6
Har. ft Johns. IS, 19; 4 Har. ft Johns. 262.
These laws have full operation in the Dis-
trict of Columbia, on the east side of the Poto-
mac, and they govern the case before tlie court.
They make the deed of manumission void,
even if the grantor of the same was competent
to give it. The decisions of the Maryland
courts on this statute, made since the estab-
lishment of the district, may not be authority
in this court, but as they give a construction
'a> the statutes of the State, the court will re-
jKci them as entitled to great consideration.
Hr. D«n4ridg« aad Mr. Kay, for the defend-
she had been abandoned by her husband; aht
was within the *eiceptions to the rule ['SSS
which vacates the contracts or deeds of married
women. CSted, 1 Kent's Com. 167; G Pick.
Rep. SB; IB Mass. Sep. 11; 2 Johns. Ch. Ca.
G37; 1 Atk. 278.
The agreement by which the defendant In
error became the property of Mrs. Wallinga-
ford was a substitute for the allowance of ali-
mony, and relieved the estate of her husband
from a heavy responsibility. If no property in
the slave was acquired by the wife, nothing
was received by her, and the effort now made
is to set up a fraud for tbe benefit of the perpe-
trator of It. The very nature of the transac-
tion made the defendant in error the separata
property of Mrs. Wallingsford. It was left by
the Circuit Court to the jury to say whether
tiie arrangement was not binding on tbe hus-
band, and they decided that it was. This gara
tbe defendant in error and her children thrir
freedom.
It was entirety competent to the husband to
give his wife this property, and the facts of tba
cose show that the emancipation of the defend-
ant in error was for a pecuniary consideratioB.
The sum of {160 was paid to her for the deed.
She had been living in a different jurisdiction
for many years; she was in great distress; and
her husband gave her the girl for her support
and maintenance. She had a right to dispose
of her as she did, to procure the means of
As to the construction given by the counsel
for the plaintiff in error to the laws of Mary-
land, Mr. Key contended that the thirteenth
and twenty-ninth sections of the law of I7M
(ch. 67) are different. Jn the one case, the case
of a will, there are prohibitory words, and not
in the other.
Further, the expressions in the twenty-ninth
section are, "slave or slaves:" any person hav-
ing "slaves" may emancipate them, if sound,
healthy, and able by labor to earn a living, ate.
Now these slaves in this deed, taking them as
the words allow and aa the spirit of the law
would allow, in the aggregate, are able to
maintain themselves.
Again, the decision in such a case should be
not that the deed is void, but that the freedom
>t to commence by It till the children are o(
Eutlicient age.
Mr. Justice Wayne delivered the ophiloii of
This was a petition in the court below, by
the appellees, for freedom, complaining thi^
they were unjustly held and claimed by the
■appellant as his alaves. The petitioner |*ft8t
gave in evidence a deed of manumission fnr
herself and two children, from one R«chel
Wallingsford. Her third child was bom after
she
nitted
It appears that Rachel Wallingsford resided
In Washington several years previous to the
date of the deed of manumission, living apart
from her husband, the appellant; that the bad
a suit pending against him in Maryland, where
he resided, for alimony, and had been allowed.
by the order of the oourt, tlSO per aanim.
WALLUIGSroKB V. Allmk,
Codente lite. Some time after thb allowance
d been made, ber huBband gave ber the pe-
titioner, Sarah Ann, and sunie other proprrtj,
in diBcbargp of her aJimonj'i that after this
agreement between thcin, tlie aaid Rachel con-
tinued to live in Wiisljingloit until her death,
having hept Somb Ann in )it;r service until the
deed of manuinisBJon was executed. After the
death of Mis. Wullingsford, the n|jpellant
claimed Sarah Ann and her children as his
itavea. All of the chitdtcn were born after
Sarah Ann was given up by the appellant to
Mr*. AVol lings ford. The appellant proved at
the time the deed of manuuiission was made
that Racbel WHllIiigaford uas his lawful wife.
ft alsu appcirs, by a, pctitiou filed by the appel-
lant in llie County Court of Prince George
County, Maryland, to get tlie interlocutory
order for alimony suapenOud, and which ia in
evidence in the cause, thai the appellant and Ma
wife, having had leptuled dibiij^rvcnii'iits, ai she
alleged on account of her husband's habitual
bicont infancy with a woman in their own
bouae, Mrs. Wallingsford left her liabitation
and refused to live wiUi hiin. The charge of in-
continency is di'iiied by the busband, hut he
admits, after his wife's departure, and upon her
refusing to comply with his solicitations to re-
turn and live with him, that by an expreaa
Bgrceincnt between tbcm, he gave her the wo-
man Sarah Ann and other property, with two
notes of band, one for Sl;!l) and the olber for
tSaO; in all amounling to £.iOOj which was the
amount the wife brought with her when they
were married, and of which the appiUee Sarah
Ann wns a part. This was to be received by
the wife in full of all further claim fur support,
and the hiiiiband was to be disvliarg<:d from the
payment of alimony decrtcd by the court.
Wallingsford haviug rtfused to pay the notes
of band, and the suit for alimony being still
pending, the parlies again met, and a Una!
separation took place betiveen them, upon the
footing that tlie wifv was to retain the woman
Sarah Ann; that each was to retain, besides,
"the property ecch had, and to be ijuitB for-
ever." In eon aide rat ion of the buaband
S90*] 'having agreed to this, the wife agreed
to yield her claim for alimony, granted by the
interlocutory order of the court, and was to
discontinue her suit.
On tlie trial of the cause, the admission of
the deed of manumiaaian aa evidence waa ex-
cepted to by t)ie defendant, but tlie court over-
ruled the exception. The defendant alao prayed
the court to instruct the jury if they should bC'
lieve from the evidence that Mrs. Wallingaford
held tbe petitioners by virtue of an agreement
between her and her husband, without the in-
tervention of a trustee, that the agreement waa
void, and could give to her no power to manu-
mit tbe slaves held under it; also. If the jury
shall believe from the evidence that the agree-
ment w*« made without a covenant on the part
of » trustee, or some person capable of con-
tracting with the huaband, that the same was
null; also, if the jury ahall believe that the
agreement was made on condition that Mrs.
Walling ford should relinquish all claim to
ftlimony, and that she did not comply with auch
•oodition, and did prefer against nim a subae-
^nent elaim for alimony, that the agreement
ewinot be enforced against the defendant; and
Uatly. to iaatruct tbe joi/ if tbey tball beiiev*
from the evidence that tbe petitionera or maj
of them at the time of tbe execution of the
deed of manumission, were not able by their
labor to procure for themselves suflicient food
and rsiinent, with other neceasariea of life,
that then the said deed was inoperative to
them. The court gave tbe last instruction to
the jury, but refused to give the rest. And up'
on tbe prayer of the petitioner instructed the
Jury if they should believe from the evidence
that Sarah Ann Allen and her children were of
healthy constitutions, and sound in mind and
body, and that the mother was capable bv
labor to procure them suffldent food and rai-
ment, with other necesaariea of life, and did
maintain them, then auch children are not un-
der the incapacity intended by the law of
Alaryland, in the act providing for the manu-
mission of a laves.
The section of the Act of 17DS (2 Mazcy'i
Laws of Maryland, 300) is as follows, "that
where any person or persona possessed of any
slave or slaves within this State, who are or
shall be of healthy con^tilutions, and sound in
mind and body, capable by labor to procure to
bim or them aufTicient food and raiment, with
other neceasaries of life, and not exceeding
forty-five years of age, and auch person or per-
sons posEc]s!iing such slave or slaves as afore'
said, and being willing and desirous to set free
or manumit such slave or slaves, may, by writ-
ing under his, her or their hands and seals, evi-
denced by two 'good ond auflitient wit- [*581
nesses at least, grant to such slave or slaves
his, her or their freedom; and that any deed or
writing, whereby freedom ahall be given or
granted to any such slave, which shall be ift'
tended to take place in future, xhall be good to
all intents, constructions and purposes whatsO'
ever, from the time tbat sucb freedom or man'
umi^sion ia intended to commence by the said
deed or wilting; so that such deed and writing
be not in prejudice of creditors, and that such
slave, at the time such freedom or manumis-
sion ahall take place or commence, be not above
the age aforesaid, and be able to work and
gain a suflicient livelihood and mainlenanre,
according to ths true intent and meaning of
this act." The act preacribea how such deeda
sboU he executed, aclinowledgrd and recorded;
and upon a compliance with what ia prescribed
in those regards, a copy of the record, duly at'
tested under the seal, etc., etc., "shall at all
times btreafter be deemed, to all intents and
purposes, good evidence to prove such freedom."
Wo will coneidcr, logethf-r, the exception
taken to the introduction of the deed of mann-
I. the li
by the' court. The deed was not objected to
for any deficiency in ils execution, or on ac-
count of its not having been properly acknowl-
edged and recorded. The last was done as fer
aa that part of tbe law can be complied with
in the District of Columbia. The deed was
also Bcknuvlcdged by the iieraon making it,
on the duy it was executed, before a Justice of
the pc-DCc. It wai then properly sent to the
jury 113 ividcn-e of the fact of manumisaion,
and >vhi.t ils vdlidlly might be to give freedom,
was a question of law to be determined by the
court. As to the instructions asked by the de-
fendant Bad Um petitioner*, relative to tha
ISuPBaMS CouKT or Tax United States.
lUt
petitioners being eoroprehended within the In-
capacity of the section of the act of Maryland
just recited, both, we think, were rightly given
by the court. That of the defendant was very
general, and the court was not obliged by it to
particularize to which of the petitioners it waa
intended to be applied. It waa, therefore, cor-
rectly answered by a general inatruction direct-
ing liie jury to inquire into the fact; at the
same time stating »hat the law waa, if the
jury should find the fact aa the counsel of the
defendant supposed it to be. That of the peti-
tioners beiDg mure specific, was intended to
obtain the court's interpretation of the act up-
on the point put, and we think the answer of
the court is in the true spirit of the law. We
5»2') think the terms of the *act of Mary-
land and the policy intended by it were meant
to prevent the manumission of slaves, who,
from infancy, age, or decrepitude, would be-
come burdensome to tlic community at the time
the deed of manumission should take elTect,
and to such as were over the age after which
DianumiE9ion is prohibited. But the slave
manumitted must either be positively in the
tatter predicament, or be so decrepit, it under
the asc of forty-Sve; and if neither one nor the
other, and Iwing in infancy, it must stand ao
unrelalcd (o any other free person, colored or
white, that it ctm have no claim, natural or
artificial, to support from anyone; and must,
therefore, he at once a charge upon the charity
of the community or a charge upon its poor
laws. It would be an unreasonable restraint
upon the privileges of manumission, aa it is
granted in this act, if it were interpreted to
exclude the manumission of mother and an in-
fant child, the former being of healthy consti-
tution and able to maintain it, aa of other chil-
dren who in the natural progress of human life
would be able, in a few years, to maintain
themselvcH by labor, and who would Had in
their adolescence persons who would gladly
maintain thcin for the services they could ren-
der. If this construction of the act does not
prevail, there can be no Hxed age in childhood
when manumission can take effect, and the act
would he made to operate differently upon per-
sons by no certain rule. The Legislature hav-
ing laid down the age after which manumisbion
Shalt not be made, a strong presumption is
raised that it did not mean to exclude all In-
fanta ahsotutely from the beneflta of the act, or
it would have said so in terms, or have fbced an
age when, in childhood, manumission should be
allowed. If the policy of the law is to prevent
slaven from being manumitted who would be
burdensome to the community, we cannot hesi-
tate in believing that the object will be accom-
plished bj relying upon those natural affections
of a mother for ber child which have always
been found strong enough to cherish and sus-
tain it; except in some unnatural instances, aa
when the true nature of woman has been
turned aside by aome dreadful superstition or
extraordinary necessity.
W'e are aware that opinions have been ex-
frcssed in the courts of Maryland different
rom our conclusion, in regard to the manu-
mission of children; hut the point of a mother
and infant manumitted at the same time, and
the mother being in any way able, by her
labor, to maintain her offspring, has not yet
54t
been decided against by the courta of Maryland
so far aa we can gather from their reports
'These opinions, too, having been ex- [^511
pressed since the cession of the District of Co-
lumbia to the United States, the courts ii
the district are not to he controlled by them il
the interpretation of the act under review ta
they would be, and aa this court would be,
by the decisions of State courta upon State
statutes affecting local rights and interests.
The fourth inslructiun asked by the defend-
ant, which the court refu^sed to give, is, if tb«
jury shall believe that the agreement betweea
Wallingsford and wife was that he should
transfer the petitioner to her on condition that
she should relinquish atl claim to alimojij
against him, and that she did not comply with
the condition, and did prefer against him a sub-
aequent claim for alimony; that then the aatd
Bgi'c?ement cannot be enforced against the de-
fendant, nor can he be deprived of any of
his rights by virtue of said agreement. Wa
think this instruction was rightly refused, for
though it is not denied that the suit for sii-
muny had not been discontinued, and was pvud-
ing when Mrs. Wallingaford died, the Icgiil
consequence would not be that the agreement
would be avoided by its not having been ob-
served in that particular. The nonperformance
of the agreement in that regard did not re-
store to the defendant the ownership of prop-
erty for which he had received a valuable con-
sideration, by the relinquishment of his wife's
alimony; of which he had the full benefit dar-
ing her life, and continues to en_oy in the
gri'atcr means he is presumed to have from
having been relieved from the payment of the
wife's alimony. But the instruction was asked
in face of the evidence, which establishes the
fact that the aubstantial parts of the agree-
ment were complied with, as the defendant had
□ever been called upon for any part of the ali-
mony, after the agreement was made, until the
death of lira. Wallingsford. A failure upon
the part of the wife Lo comply with this part
of the agreement, gave to the husband a good
ground in equity to have the suit discontinued,
but did not invalidate the agreement.
The remaining exceptions to be considered
are those relating to the nullity of the agree-
ment, because it waa made without the inter-
vention of a trustee, or some one capable of
contracting with the husband. The court re-
fused to give such instructions.
The inability of the wife In this instance to
contract or to take any interest from her h»a-
hand without the intervention of a trustee, waa
argued, upon the restraints imposed upon wom-
en by the common Maw, during cover- [•*»*
ture. This is a case which cannot be ao con-
sidered. Neither the nature of the action by
which the petitioners sue to have their free-
dom established, nor the agreement between
Wallingsford and his wife, would permit this
court to take so narrow a view of the casa.
Every feature of the agreement is an appeal to
have ft tested by those principles of equity
which have been applied to maintain a arp**
rate interest In women, acquired from their
husbands during coverture, whether the same
were made by the intervention of tmstoea er
not, when the transfer was fairly made upas a
meritorious or valuable eoasidvation.
PetCM It,
BsntT T. Tni Bake or WABBimnoir.
AgTMmeDta betwHa husband and wife, daT'
Inj covvtture, for the ttBnsfer from liim ol
propertj directly to the li.tter, are undoubtedly
void At law. Equity Examines wiLb great
caution before tt will coDBrm them. But it does
■uataiD them when a clear and satisfactory case
Is mada out that the property is to b« applied
to the icparate ase of the wife. Where the
consideration of the transfer is a separate
tercBt of the wife, yielded up by her for the
husband's benefit, or of their family, or which
has been appropriated by him to his uses.
Where the husband ts in a situation to make a
gift of property to the wife, and diatinctlj
separates it from the mass of his property for
her uae. Either ease equity will sustain,
though no trustee has been interposed to hold
for the wife's use. In tloore v. Freeman, Ounb.
EOd, it was determined that articles of agrM-
luent between husband and wife are binding in
equity without the interri^ntion of a trustee.
Other CB^es may be cited to the same purpose.
In regard to grants from the husband to the
wife, an examination of the caaes in the books
will ahow, when they hare not been sustained
In equity, it has been on account of some fea-
ture in them impeaching their fairness and cer-
tainty, as that they were not In the nature
of a provision for the wife, or when they inter-
fered with the rights of a creditor, or when the
property given or granted had not been dts-
trnt'tly separated from the mass of the hua-
band's property. In Scanning v. Hyle, I P.
Wms. 3;tl, Lord Talbot assumed the doctrine
that femes covert couM have a separate interest
by their husband's agreement. In the case of
Udy Arandel v. Phipps, 10 Ves. 146, 1*9, Lord
Eldon held that a husband and wife after mar-
riage could contract, for a bona Sde and val-
uable caniiili>ration, for a transfer of property
from him to her. In Sbeppard v. Sheppard, 7
Jobno. Ch. Rep. 67, It li said husband and wife
may contract, for a bona fide and vahiabte con-
okleration, for a transfer of property from him
sg$*] to her. In ■Walles v. Hodge, 2 Swanst.
ff7, it is said, husband may convey to the wife
a chattel. In the case of a gift from the hus-
band to the wife, ft is held valid when the hus-
band, by some distinct act, devests himself of
bis property. As, for instance, in the case of
Lucub v. Lucas, 1 Atk. 270, the Lord Chancellor
held that the transfer of £1,000, South Sea
annuities by the husband, In the name of the
wife, was so decisive an act as amounted to an
cSTeement by the husband that the property
raould became hers. It is not necessary to re-
view here the cases of gifts to the wife by the
hnaband, which have been sustained in equity.
They are alluded to to show how far equity has
gone in maintaining transfers of property by
Jhe husband to the wife, without the interven-
tion of a trustee, and when there was no voi-
dable consideration money from the wife to
the husband. But the case before us ia one
where a transfer of property must b« consid-
ered A* having been made for a valuable con-
sideration. It was given in lieu of alimony,
decreed by a court of competent Jurisdiction,
by a
endente lite; and passed tfie property as ful-
r to the wife as if the husband had
.rrf
it to A third person for a valuable consideration,
la regard t« that property, lira. Wollingiford
• Ii. ed.
Judgment of the Circuit Court affirmed.
Uen of Bank of Washington upon its itoek,
held by debtor of bank, supersedes priority of
United States.
Bobert Bre
flfly-n
s ol B
ii Iwcame due
a was indebted to t.
cennln prcimlMorj aoces. ol_ ._
after hlB deatb. Ue nai also indebted (a the Unit-
ed Stalffl, as paymailer, and b« made an bbsIid-
menl ot bis property to satlsfj Ibe debt. The as-
signees did act accept the awltninieut. He died
sometime Brierwsrda. Tlie bank, under the provl-
sloa of their ebarter. whicb glvta a Men on the
Mock hpld bj a debtor for tbe payment of debts
due to tbem before the tranafer of the atocli beid
bj a stockholder, Inslaled on the lieu, agnlnit tba
efalm at nrlorltT bj the United SUtes, and their
It bi
n of the i
a r^ws, *«4i.
and of the similar croi-lslon Id Ibe stilyarth ai
of tlie Collectlou Act ol IIUS (1 Story's Laws,
or asBlCDDieiit tlie propertT ot the debtor paises
and It has never been decided that It airrcts nay
lien, leneral or apeclDc. exlKlne wben the event
took pace, which gave the United States a claim ot
Anotber mle Is settled by these cbbps, tbst the
priority does not attach to property legally trans-
ferred to a creditor on respondentia, tboncb he
may bold It subject to "~ " " - -
r the b
will h
against the nnlted Btnti;'_ iVnu-
the equitable aa well as Uie iiv.-^! Uitueat u
Every stockholder of a bank who draws or I
Itnnnd to know the terms of the charter and 'b
BlgnH
) the I
<y. It s
APPEAL from the Circuit Court of the Unit-
ed States for the County of Washington
in the District of Columbia.
Robert Brent, a paymaster of the Army ot
the United States, bavins become indebted to
the United States, and boing In an infirm state
of health, on the I7th of May, 1819, executed on
assignment, stating the situation of his heatlJi,
and his earnest desire to aatisfy and adjust tho
claim of the government against him as pay-
SOPBEMI Coim DF THE UiriTED St AIM.
■•at«r AS aforeaald, and to do jiutice to others;
and, that the better to secure thete objects *ad
SV7*] 'purpoaea, the aBsitpimeot proceeded in
the following terniB: "I have conveyed and
asaigncd, and do b; these presents convey and
asaign, in consideration of the premiaes, and for
the sum of one dollar to me in hand paid,
George Graham, Joseph Pearson, and Robert Y.
Brent, ail jaj real and personal aatate and
property, in whatsoever consisting, and where-
soever situated, to them, the laid George Gra-
ham, Joseph Pearson, and Robert Y. Brent,
their executors and administrators, and to the
Burvivor of them, nevertheless, for paying and
satisfying all just claim or claims of the gov-
ernment as aforesaid; as well as for satisfying
all iust' claim or claims of all others, as fa:
forth aa the said estate and property above con
veyed will answer, with full power and author-
titles to all or any part of the property
ferred to, in conformity with the intention and
purpose of this writing: it being well under-
stood that the said trustees, after satisfying
the purposes of the said trust, shall well and
fully account with the said Robert Brent, his
heirs, executors or administrators, for the exe-
cution of the trust aforesaid, and (11II7 restore
to the said Robert Brent, his heirs, executors
or administrators, any overplus or aorplusago
that may remain of the estate aforesaid; and,
it tieing also understood, that the said Robert
Brent ri'serves to himself the possession and
use of such part of the property aforesaid as
may be for hie reasonable support and main-
teOEince; and, likewise, the privilege of dis-
posing of any part of the trust estate, with tbe
consent ol the trustees, for the oljjucts desig-
nated alwve."
It was agreed that the assignees refused to
accept the assignment or to act under it.
Robert Brent died on the Tth of September,
tSIB, leaving real and personal estate, and the
executors qualified, and took possession of his
estate in 1820. At the time of his death he
held six hundred and Qfty-nine shares of stock
in tbe Bank of Washington, and at that time
he was indebted to the bank as indorser on two
promissory notes, one for $1,000, drawn by
Thomas ll Washington and indorsed by Rob-
ert Brent, due and protested on the 22d of May,
1B19, the other for $6Q7 also drawn by Mr.
Washington, and indorsed by Ur. Brent, due
and protested on the 29th of Uay, 1810; he was
alio, at the time of bis death, indorser of a
promissory note drawn by John Cooke for $400,
which became due and was protested on the
598*] loth of November, 'ISIS, making, to-
gether with the other notes, the sum of $^,067,
of which $1,667 only were due at his decease.
Bome years after the death of Robert Brent,
the Bank of Washington instituted a suit
against the executors on the note of $400 and
on the note of $067; and on a plea Of the stat-
ate of limitations, a verdict and judgment were
rendered for the defendants.
The eleventh section of tbe charter of the
Bank of Washington provides that "al! debts
actually due and payable to the Liank (days of
grace for payment being passed) by a stock-
holder requesting a transfer, must be satisfied
B4B
before such transfer shall be made, unleaa thi
president and directors shall direct to the cos-
The same section of the charter also declarM
"that tbe shares of capital stock at any timi
owned by any individual stockholder, shall U
transferable only on the books of the bank, ac-
cording to such rules as may, conformably le
law, l>e eatablished in that behalf by the prei-
ident and directors."
The certificates of stock issued by the bank
declare that "tbe shares are to be transferrMl
at the bank by the stockholder, or bis attor-
ney, on surrendering tbe certiQcate of tha
same." There is also a provision in the section
which autborJEes the directors to make regula-
tions for the government and Iraniactions of
tbe bank, "conformable to law."
The executors of Robert Brent, in the year
1820, called upon the Bank of Washin^'ton, and
requested to be allowed to transfer the stock
lield by their testator. This was rerd-cd with-
out the payment of the notes, the bank claim-
ing tlic same under the provision of the char-
ter, which, it was insisted, gives the bank a
right to be so paid. In 1835 the bank li:ii] r«-
tained dividends on the slock, mid liait Fo!d a
part of it, amounting to $29!),80.
Bllta were Sled in the Circuit Court, by tb«
surviving executor of Robert Brent, for Ih? use
of the United States, a^inst the Bank of
Washington, claiming a right to trn^rTcr tha
stock for the payment of the debt due to the
Unit«d States, on the allegation of the ri^M of
priority given to the United Stales by the
acts of Congress. The Bank of Wauliin^ton, at
the same time, filed a bill claiming to appropri-
ate the stock, by a sale of it, to the payment
of the debt due to them, and as^erlin^ their
right to a lien and to payment under the pro-
visions of the charter.
The following agreement was made in tha
Circuit Court between the parties to the**
auita.
•"It is agreed by and between the {*5Bi
said parties that if the court aball be of^ opin-
ion that tbe eleventh section of the charter of
the Bank of Washington, aa follows, 'all debtf
actually due and payable to the bank {days at
grace for payment being passed) by a stock-
holder requesting a transfer must l>e satisfied
before such trnnsfer shall be made, unless th«
president and directors shall direct to the con-
trary,' confers upon said bank a specific lies
n the stock held by any stockholder indcbt-
to said bank, the days of grace being
passed; then the court may decree that the
stock, or a sufficient amount thereof, held by
complainant's testate in said bank, shall be sold
at public sale upon such terms as the court maj
think proper to impose, and by such trustee si
they may appoint, and may further direct that
'he proceeds thereof, after paying the expenw*
if the sale and the costs of this suit, shall b*
ipplied to the payment of the notes herein-
.f ttr enumerated, and by this afjrcement admit-
ted to be due and unpaid by the complainant's
testate to the defendants; unless the court shall
further be of opinion that said lien granteil hy
said cliartcr is overreached, controlled and de-
stroyed by the claims of the United States no*
made to a sriority of payment out of said iiock
UM
UBKNT 1
t UAifK or WAsiitMOTOii.
br T(rt» of the Act of Congress of 1TB9 (eh.
128, ate. 6S) A9 follons, 'in all casps of iiuoW-
eiM7, or where any estate in the hands of execu-
tors, adminiEtnitorB and sasigns. shall be in-
■officient to pay all the debts due from the do-
eeaaed, the debt or debts due to the Uniteil
States shall be first satisfied.' Or unlei
eonrt be further of opinion that the elaii
debts, or said notes, due to said defendants and
bereiaafter parti en la rly specilied, upon
Which notea of safd t^talt as hereinafter do-
scribed, it is agreed, suits were instituted by
the defendants against the complainants, on the
eommon law side of this court, at the trial of
which said suits, the complainants had solely
and exclusively, upon the ground of the ple»
of limitations, a verdict in their favor, wert
thereby extinguished, and the said lien in con-
sequence of the said limitations lost and de-
stroyed; then the court to decree, if the cliiima
of the United States to priority of judgment be
allowed, that the proceeds of said sale he ap-
plied in payment of the debt due the Uniterl
States; or unless they shall be of opinion that
the said lien is not anected by any such priori-
ty, but has been destroyed by the eaid verdicts
in favor of complainants, then the proceeds of
such sale to be applied to the payment of the
note upon which no such verdict was rendered
in favor of complainants."
600*J 'The Circuit Court, on the 26th of
January, 1826, made the following decree In
the two cases;
"These causes coming on to be heard upnn
the bill, answers and exhibits, and the facts
stated in the agreement entered into between
the complainants and defendants, it is this S2d
day of January, in the year 1S3Q, ordered and
decreed by the court that the stock of Robert
Breut, deceased, standing in his name, in Che
Bank of Waahington, or so much thereof as
may be necessary to satisfy the several notes
In the said agreement specified, be sold at pub-
lic vendue, on the credit of sixty or ninety days,
the purchasers to give notes with good indors-
ers, as the trustee may approve; notice being
first given of the day of sale fn one of the city
newspapers, and that J. Hellen be, and he is
hereby appointed a trustee to make said sale.
and after paying the expenses ol sale and costh
1 the above state-
ment as due to said defendants; and it is fui-
ther decreed that the halaooe of said stock shall
Im transferred to the United States by said de-
fendants, on the books of said hank."
The United States prosecuted this appeal.
The caas was argued by Mr. Butler, Attor-
ney-General, for the United States, and by Mr.
Key for the appellants, and by Mr, Hellen for
tba appellee.
For the United States it was contended that
at the time of the execution of the assignmenl
nothing waa due br Robert Brent to the Bank
•f Washington. His liabilities were as indort-
•r an certain promissory notes, which, to the
■■onnt of 11,667, became due after the assign-
vent waa made, and the residue of the debt
ttlainwd by the bank, $400, became due after
llr. BrenVs decease.
nie provision of the charter U in favor of
4«bU aetoall; due, and the days of graco on •
• Ii. cd.
note must have expired before the debt can be
cinimpd. Thus, then, the L'nited States, by
the terms of the assignment, as well as by the
operation of the statutes giving them a ri^fht of
priority, became entitled to payment of the
debt due to them, to the exciuaicn of the claims
of the bank. The deed was an act of insolv-
ency. In addition to the general principles
which give the United Slates the prior right
to the property of their insolvent 'debt- [*a01
or, so as to exclude all other creditors, the de-
cree of the Circuit Court is erroneous, even If
tliese principles do not apply, aa the Bank of
Washington ia allowed to claim payment of the
two notes on which suits were instituted and
judgments obtained in favor of the executors,
im the plea of the statute of limitations.
The priority claimed by the United States
rests in this case on the fifth S3ction of the Act
of Congress of IT9T {2 Laws U. S. SOS], which
extends the right of priority to all cases of in-
solvency. The United Btatea t. Fisher, 2
Cranch, 3S8. The Act of 17B9 relates to duty
bonds only.
It is said that there is no proof that Robert
Brf-nt waa indebted to the United SUtes. The
precise amount of the debt ia not stated, but
(he whole proceedings in the case go upon the
ground that he was so in<!cbted. The assign-
ment of 17th May, ISIS, contains an acknowl-
edgment that he was indebted, and the agreed
facts authorize the court to assume that he
was a public debtor.
The next question Is whether Robert Urent
became insolvent. It is objected that the as-
iiignment fs not of all the property of the as-
signor, but an inspection of the instrument will
satisfy the court that it is full and auflieicnt
for the purpose of enabling the trustees to car-
ry its purposes into effect, by selling the whole
estate of the assignor.
If the trustees did not accept of the assign-
ment, and no action took place under it, the
objection to the claims of the United States un-
der it may not be valid, but still the assign-
ment is evidence of the insolvency of Mr.
Brent, and the fact of his insolvency being thus
established, to give, from the period of its
execution, a right of the United States to be
paid the debt due to them, that right could
not afterwards be disturbed or affected.
The right of the United States to be paid by
the executors in opposition to the claims of the
bank, if not under the assignment made by
their testator, exists under the provision which
gives the priority in eases of the decease of per-
sons indebted t? the United States.
One of the notes was not due until after the
decease of Mr. Brent, and there was, therefore,
at the time of his death, no more than a contin-
gent liability for that note. He was indorser
-m the note of John Cook for (400; which be-
ams due and was protested on the 19th No-
'cmber, 181B. The rights of the United States
were ahsolute, and were fixed before the claim
by the bank existed. As indorser, up to the
failure of the drawer to pay, and until after
demand *and protest, no debt was due [*602
by him. The drawer of a note is said to lie a
debtor from the date of the note; bis debt ia
debitum in presenti, solvendum in tuturo; but
not so an indorser.
The bank kaa no elaim on the note* aned for
54*
SuPBBMi CouBT OF nil Uifimt States.
ISN
kod In which auU » judgment, on the statute
of limitations, vros rendered against the banlc.
The obligation to pay the debt wns at an End
when the judgment waa given. Thua, if the
bank hod a lien on the stock, as thry elected
to iuc out the notes, the lien was aliaudaned.
While In England It may be difTerent,
United SUtes, after the statute of lini
baa attached, the debt is gone, and a nei
Ise Is absolutely necessary to recreate the debt.
It It not admitted that a construction can be
given to the charter of the bank which will in-
terfere with the priority of the government.
Whatever effect the provisions of the charter,
Siving the bank a hen on the stock of their
ebton, may have In the case of individuals,
no auch effect can exist aa will interfere with
the right of the United States to their priority.
Tha ^ject of the charter waa not to repeal
lawa already established and in full force, and
leaat of all, laws which are deemed essential
the fiscal operations of the government, auch
those which give the government priority
claim in cases of the insolvency or decease of
their debtors. The whole of the eleventh sec-
tion of the charter must be taken into consid-
eration. It empowers the directors to mak«'
regulations conformable to law. From thcs::
words it may be inferred that Congress did nnt
Intend by the charter to alter any existing laws
They recognized in this provision the laws a°
established and In force, and the rules and reg
ulatiuns of the bank were to be in harmony
with tbem.
Mr. Hellen, for the appellees, obnerved tli.-ii
before he proceeded to discuss the scvprut prop-
oaitions arising in the cause, it would be necen
■ary to state that the record provided the prooT
of eveiy fact that could, on the part ol the
bank, be required to charge the stock of t)i'-
deceased, by virtue of the eleventh clause of
the Act of Congress entitled "An Act to incoi
porate the Bank of Washington," passed thi
ISth Friiruary, 1811.
spective notes described in the statement of
facts agreed upon by all the parties to both
tbe suit set for hearing in the court below. It
Is admitted that at the time of his death Rob
ert Brent held six hundred and fifty-nine
•03*] ihares of stock in the *bank. That
the notes were severally protested, and that
due notice of their nonpayment waa re^tarly
given to him in his lifetime, or to his executors
aiucs his decease. That tbe notes were yet
due and unpaid.
The record thus substantiatins tbe debts due
to tbe bank, ha should respectfully submit to
the oonsi deration of the court in support of the
decree rendered in favor of the bank by the
bank, which required "that all debts actually
due and payable to the bank {days of grace for
payment being parsed) by a stockholder re-
questing a transfer, must be satisfled before
such transfer shall be made, unless the presi-
dent and directors shall direct to the contrary,"
gives the bank a lien on the stock held by Rob-
ert Brent at tbe time of his death.
«.. That the Act of 1709, which directs "that
' oHe* of InaolvMiey, or wbare an estate In
the hands of executors, administrators, or as-
*i|!nees, shall be InsufKcIent to pay all the debts
clue from the deceased, the debt or debtn due to
the United States shall be first satisfied," gives
to the United States a simple priority of pay-
ment. Slid no lieu, and that it cannot devest
the bank's lien.
3. That even if the United Stales have i
the charter no exception in favor of tli;- United
States.
4. That this stock never has bec^n an estate
in the hands of the executors, but as incum-
bered nith the lien.
5. Tliat the d?,-d of Robert I!r™t in favor of
c-ptH
v thf-n
8. That 111.' 'ir
Lhe cliartor iHrLCt
7. That tli> -^IH
Ha a precise idea of the extent of the rights of
the bank, aa provided by the clause of the
The clause is itself imp-nttive. Thp wunU
"all debts actitnlly i!ue and piyaMe In I'l" ha-'.
must be satisfied before such tiansfer -lU.ill In-
'iiade" Maya of graee hein',' p:i^* rp . ,t ■,■ ■ T -■■
lute, explicit and peremptory," and show that
nn discretion is givtn, ami whrii Hint is M<
i.'iL3F, even affirmntive words make a statute
The fundamental rule for exp'>iinJing it»i
iites is, "that if it. can be prevented, nn .-Iniiie
,<:'ntence or word should be deemed superdu'iiu.
•void, or insignificant," To say, thm, [••0»
[hut the stock can be transferred before th-
li'bts of the stocltholder are satisfied, is to ren
^!er every word inoperative, insignificant and
■iitirely nugatory. The right of tbe bsjik to
fie first paid before the stock can be Iranifer
red, must lie wholly annihilated before tbe
United Stales can, by the letral fiction, have it
vested in the executors at the death of their
testator, so as to make it an estate in th-ir
hands to authori?^' a priority of payment tn tbo
government. This niakys it a conflict between
riglit secured by the chnrter and n legal fie-
an. The doctrine of relation ran,;ol. bow-
er, devest any right legally vested in nmilher;
where rent was due to landlor l whn dieil,
id execution was levied on the ICT'int i :;rw>il»
before letters granted, on a notice bv a tminia-
tratar to the sherifT to pay him a yar a rent,
i^-reeably to the statute of 8 Anne |cb. 17).
he court held thst relations which are but l«-
gnl fictions nf law, should never devest an>r
-ight legally vested in another. I Williams od
executors, :«)S. He should show hereafter,
vben he undertook to discuss the fourth propo-
lition, that the Maryland statute olaced an
ixecutor on the same footing as an anministr«-
tor by the conimon law. and at this time, mer*.
ly asked tbe CHurt to apply this doctrine of r*.
lation to the note of MDO, which fell due after
the death of Robert Brent. That note leM du«
on the intfa of November, 1819: Hobert Bi^mnt
died on the 7th September, tfllD, and leUrn
testamentary were not grvnted until 18i0. So
FVMra «•.
Bbent v. The Bahk <
Washino'I'oh.
tkftt the not* baTfng fallen due before the exee-
itort hkd K right to demand of the bftnk a
timnafer of the stock vrhich right onlj accrued
to them bj virtue of the letteri testamentary,
thia l^ral Octton cannot devest the right ot
the bank (which was perfected when the note
fell due) to be latiafled before thej could en-
force a transfer ot the itock. He also stated
that all the sberee were bound for tbe ptynient
of tbe note due on the 22i1 May, 1S19, and
that aione oprrated to destroy tbe
right, by»Hliich "
tator's in the bank, which the charter provided
ahonld not be assiKncd or delivered up before
the notes were "satisfied." How could an i
ecutor, by virtue of this constructive right
the property, proceed to enforce that right?
Thua teat the extent of his powers. He could
Dot maintain an action of trover, because
there would be no illegal eoDversion. Kepli
would not tie, becnuae there would be no
tloUB taking of the property. Detinue
flOS*] 'would not aid him. because he has no
rifht to the immediate posscssim; for, in the
langua^ of the charter, the debt must b:^
•atisDed before a transfer shall be made. It
cannot be contended that the death of a stock-
bolder changes the rights of his repreaentativei.
Executors stand in the place of thair deceased,
and ftre bound by his covenants, although
Kot named in the rieeil. His act has the same
•ffect. They Uke subject to the rights of the
bank as secured by the charter. In Wilkinson
v. Leland et al., 2 Peters, 658, It ie expressly
ruled "that where an heir takes real estate,
fail title is encumbered with all the liens cre-
ated by tbe party or the law at his deceass."
Tfaia court, in the case of The Union Bank of
Qeorgetown v. Laird, 2 Wheaton, 300, decided
that the charter of the bank conferred a lieo
OB tbe etock.
Having thus, by anthorities of the moat cim-
manding character, clearly established the lien,
hs should proceed with a ftill conviction of the
magnitude of tbe subject to invite the atten-
tion of the court to the important principle in-
volved in the examination of his second propo-
rtion. Can the priority of the United States,
br the Act of I7U9, devest a lien? In stating
tM question In this form, he suggested that
it permitted the United States, very improp-
erly, to advance a move in the game. The true
qveation is not whether the acts of Congress
can deveet a lien, by virtue of tbe priority, as
whether a debtor on whose property a lien has
attaebed, can by his conveyance, assignment, or
death, devest that lien.
By the acts of Congresa, an estate fa to be
^ia the hands of executor* or assignees," before
the priority of the government accrues. This
arisM ' I the one case by the act of God, which,
wben it happen*, never defeats vested right*.
Hie other depends on the act and deed of the
debtor. Re must convey, and the priority of
tfac United States is dependpr.t on that eonvey-
anee. If a detitor can by his own deed or
grant to assignees defeat a prior lien, this he
tut efTeet by any bona flde alienation. A mnr-
riaga •ettl«tnent or contract will accomplish it.
Tf It can be done t^ an insolvent debtor, the
■olvent debtor, by a conveyance, ean alao dii-
eharge pre-exiating UoM
If a debtor by hi* conveyance can dlacharge
a lien, he can discharge any and every Ilea,
Huch aa the parties create by contract; such a*
arise by operation of law; such a* are created
by stetntes. Suppose, then, that these statute*
gave to the United States, not a simple privi-
lege, but a lien on the property of their debt-
ors. Could "it be contended that tbe [*eo«
conveyance of the debtor in the one case would
defeat the lien, or that his death in the other,
where there were judgmfint creditors, would
entitle them to a preference in payment out of
the very property which was encumbered with
the lienT If thia be the law, it demonstrate
that what you call a tien "'1* an unreal mock-
ery," a nondescript, unsubstantial, and over
which the creditor has no controlling interest.
This, however, is not ao. Such a position is
exploded by the argumentum ad ahsurdum. If
it could be sustained, it would expose all legis-
lative or statutory liens to the charge of the
inost inelGeicnt and fatuiton* folly.
But suppose a contract provide* in its very
terms that the creditor shall have a lien on a
chattel, and Congresa should pass an act dis-
placing the lien of the creditor. This would
be a Taw impairing the obligation of a con-
tract, and consequently void. Now, if it can-
not be impaired by direct legislation, it cannot
be done indirectly. The tenth section of the
first article of tlie Constitution of the United
States prevents the States from passing a law
impairing the obligation of a contract. Con-
gress has no power to pass such a law. Ko
nueh power U delegated to Congress, and the
tenth amendment to the Constitution reserves
to the people the powers not delegated to Con-
gress.
He should now refer to adjudicated prfn-
ciples; and inasmuch a* he should refer to
Enf,'li3h coses, be would first advert to the
law.i of the crown, as this regarded the debt*
of the subject. In Ram on Assets, 10, we find
that by the statute* of 33 Hen. VIII. (ch. 3B)
and 13 Eliz. (ch. 4), the crown has a lien on
piTBona! property from the date of the writ or
bond; on real estate the moment the subject
takes office. The laws of this country are dif-
ferent; but the fallacy of the notion that a
priority of payment, which ia not a lien, can
devest a lien, flows immediately by taking the
converse principle. In Fisher T. Blight, 2
Craneh, 358, tbi* court decided that these law*
lot confer a lien on the debtor'e goods, and
reason apparently assigned for it is "thai
ransfer of property in the ordinary course
of business was overreached." Suppose, then,
that these laws of Congress, as the iLnglish
statutes doj declared it to be a lien; would it
not "overreach a bona Gde transfer of property
in the ordinary way of business I" If it could
not, the consequence ts that it confers no secu-
ity at all, if the goods be not thereby bound,
he same reasoning will apply to the case of
The United State*. v. Uooe, 3 Craneh, 73. The
next ease to which he would Invoke tbe con-
sideration of the court, was that of Conard t.
Tlie Atlantic 'Insurance Company, I [*607
PeUra, 441, 444. What is there asserted as to
this priority of the United SUtesT "Why, that
it is obvious that the priority of the United
States cannot devest a lien, because it is not
equivalent to a lien." In that case, it Is also
remarked that the authority of Vathan v.
Sirpinn Coobt or thi Uhiib Statks.
Gllflt, 8 Taunton, 578, wonid require very
gnn eoDHi deration before an; mich principle
■lioaM be sanctioned, as that this pnority of
the United StatcB can devest a lien. This Is
it. "Wben a factor had a lien on a carfco,
which waa attached by a creditor, the court
directed the proceeds of lale to be paid to
But in England the king*! prerogative '.
never tieen autTlciently strong to devesl a li
greatly aa It exceedi this comparatively feeble
power of priority given by these acta to the
United States. In Rex v. Lee et al.. 6 Price,
360, where a factor had a lien on ^>od8, and
they were seined by an extent, in favor of the
crown against the principal, the court ordered
the proceeds of the sale to be applied in dis-
eharfn of the lien. Suppose that the principal
had died, could it be pretended that this there-
by defeated the Hen, so aa to give the crown a
right to the proceeds, when the lien or right to
it Rtill existed I Rorlie v. Dayrell, 4 Term Re-
ports, 402, also decides "that where goods are
>ei7«ii on a fieri facias, as the king's debtor's
and before they are sold, an extent comes, at
the king's suit, grounded on a bond debt, test-
ed after delivery of the fieri facias; the extent
cAnnot alTect those goods." The ease of Tbe-
lusson v. Smith presents a very simple anes-
tion. A junior judgment creditor seizes land
which was liound by a prior judgment, and the
aeniOT creditor. Instead of enforcing payment
by levying on the land In the possession of the
purchaser, tries to have the procecilt of the
•ale applied to the payment of hie senior jud^-
iDCDt. This be had no right to do, but instead
of the sale of the land devesting his lien, it
was still liable, and by issuing a scire facias
against the purchaser, so as to put his judg-
ment in a condition for execution, that lien
could be enforced.
In order to show that the death of the party
could not defeat the lien creditor's rights, so
aa to vest the estate in the hands of executors
discharged of the lien, he cited Potton v. Tate,
1 Swanston, 84, also Montague on Lien, 61;
who states "that solicitor of plaintllT, who dies,
has a lien upon the sum decreed in preference
to bond creditors." In Hammond v. Bsrcla]>,
2 East, 227, it was argued that ths death of a
debtor annulled the lien by revoking the
authority. The court said "such a position
was inctmsistent with the justice of the case."
608*] 'If this argument should be sanc-
tioned aa the law of the land, he beseeched the
court to consider the dreadful consequence «
which would ensue from such a principle. A
■hip owner has a lien on the cargo for freight.
He makes his voyage, that is to say, he is in
sight of land, and before his arrival in port the
owner of the cargo dies. His estate is insolv-
ent, and the consequence is that his lien is ut-
terly defeated. So, also, the bardy tar, who
perils the danger of the sea, is to go unpaid
a:fter making, probably, a voyage to the distant
Indies. But specification Is useless. This del-
eterious and ebameful perversion of justios can
be confined to no order. It will Inflict ruin
upon the adventurous mariner, the enterpris-
ing merchant, the careful and industrious me-
chanic; and before the jurisprudence of the
•ountry should be stained with so odious a
Should the court be even dispoaed t« w
tion the principlea contended for by the appel-
lant, yet the record in this case furnished M
evidence of uny one fact which could suatalg
the claim of the government.
It has been already settled by this court that
"on an appeal, the eourt can only take notkt
of matters of fact appearing upon the record."
The Governor of Georgia v. Madrazo, 9 Peten,
110; 5 Peters, 248. There is no proof on the
record that Robert Brent died indebted to Utt
United Statea. No txmA or transcript of hit
account is certified In due form by the propel
officers of the government. There is oo proof
of his haring committed a legal insolvent.
There is no proof on the record that his estate
in the hands of his executors is insufficient to
pay his debts. The answer dues not admit iL
No account of assets, no schedule of his debts
establishes the facL There is no proof that h*
held the stock when he made the deed. The
appellants admit that the trustees did not ac-
cept the deed, and that at the time of its ev
ecution Robert Brent owned a large estate is
fee-simple. This admits the deed to be void;
and If it were not, by the decision In Vit
United States v. Hooe, 3 Cr. 73, it must convey
all his property to give a priority. In tbi*
deed there are no words of inheritanoe, and,
of course, it cannot vest an estate in fee-sim-
ple. Robert Brent made a will, and that is
sufficient to show that the deed did not include
all his estate; so that the appellant has do
proof to authoriie a reversal of the decree.
The prinrity cannot affect the Hen of the ap-
pellees, because the charter contains do ex-
ception in favor of the United SUtes. It is
alos matter of subsequent creation to the Act
of 1799.
•It is admitted that the King of I'«»t
Great Britain, hy virtue of his prerogative, is
not afTected by either of these objections. H(
is not bound by any act unless nnmed. He
should, however, insist that before the United
States can claim the benefit of this preroga-
tive, they must introduce it to the system of
the body [Mlitic by a legislative act. Until
the legislative power of the government, in a
lawful way, by a positive statute, asserts a
claim to this prerogative, it continued a dor-
mant, inoperative and powerless right, inher
in the Constitution, but to be bom of Con-
gress before it can be nursed by the judiciary,
or even be considered as a vigtirous, practical
and active principle. The judiciary is consti-
tuted for the express object of expounding the
laws of the country. A law there must be
emanating with the Legislature befoi« ths
(unctions of the judiciary can commence.
Should this distinction be not carefully ob-
served by each co'ordinate branch of the gov-
ernment— which it was the great object of the
framers of the Constitutitui to provide, in ■ep'
arating their powers, and allotting to eAch its
distinct duties — then the rights of the legisla-
tive department are disregarded. Bladcstons
he King's Prerogative (voL 1, p. E40)
Tcs that "it was customary, in the earl;r
history of England, for the king to sit as k
judge to expound the laws In his oim courts."
This alone accounts for the manner io whi^
the prerogative of the king has been cherished
by judicial authority. To illustrate, however,
the precise import of tUs principle, be wonU
Bbkkt t. Tbb Bakk or WABmmoir.
take tk« prerogative, which gave priority in
Cfnent to the Viag. SuppoM tb&t CoDxreii
d never legiaUted on this BUbject. It ii
admitted that the power to make the lavr ex-
ista in CoDgreaa. Without a law, could the
Att«rD(n'-QeneraI, on the death of a citiien
indebted to the United States, bj virtue of
this prtrogatite, compel an executor to prefer
the debt of ibe KovemmentT Suppose he
abouM aoe him, and allege a devaatavit. be-
caoae he paid judgment orediton in preference
to the debts due to the United States; would
the court allow thii praroKative to operate
•minst the executor I The Icing has also the
right to erect beacone, light-houses, etc Ha
can take the mona^ from the pubUe treasurj
to make tlie sreetioo. In this oountrj Con-
greia poMesKs such power. Th^ can, bj
atatutoTj enaetmenta, authorize their erection.
Etot neither the executive nor the judiciary can
elaina the pren^ttve. If this b« not so, then
the aoeial fabric, the Constitution of the coun-
try, is placed upon no solid basis of delegated
• 10*} powers. He admitted 'that the com-
mon law had been received In dvil eases aa a
part of the jurisprudence of the United 8t«t«s,
where it did not conflict with the fundamental
principlea of ita republican form of govern-
ment. This prerogative of the kins ts an ex-
ception to the general principle of toe common
law. "B; the word prerogative, we nauallv
imderatand that special pre-emlnenoe which
tbe king hath over and above all other per-
sona, ont of the ordinary oourae of the eom-
mon law. In right of his regal dignity." 1
BUek. 240.
Bnt thia charter Is a eontraet, a grant, •
franebise. All ita rigbta are beyond t£e reaeh
of the government. He would not stop to ap-
ply this principle; but would refer to the ease
^The Dartmouth College, 4 Wheat. 018. He
would sapi, however, thAt Congress gave the
bank a right to hold the stock until the debt
waa paid, and this risht waa valuable to the
iaatitntion. HiIb stodc la not aaaeta In the
handa of executors: "where a testator pledges
mods, they are not assets until redeemed." £
WilliHma on ExMiutors, lOlfi. By the Act of
Uuyland of 1798 (eh. 101, aub. ch. 3), "An
cseeutor or executrix named in a will cannot
dJapoM of the chattels or interfere therewith
until letters issue; he must give bond within
twenty days. The court must direot « sale.
Bj this modification he stands as an admln-
istnitor at common law, and had no right to
B^ a transfer before letters issued.
As to the fifth and sixth points, the At-
torney-General admitted the deed to be in-
operative, the trustees not having accepted it.
Aa to limitationa, it goes to tha remedy, and
does not affect the debt He cited Montague
on Lien (app. 38) to show that the lien was
not diacharged by the statute. Indeed, the
very esaenee of a lien was a right to retain
the chattel until the debt was aaUsQed.
Ur. Jtutiee Baldwin delivarcd the opinion
of the court:
Robert Brent, the testator, owned six hun-
dred and fifty-nine aharea of the capital stock
of the Bank of Washington in this district,
which stood in hia name on their books at the
time of hIa death In September, ISIQ, when he
waa indebted to the bank |I,66T as indoraer of
• Ii «d.
two notes drawn by J, L. Washington; one of
which waa protratad on the IBth, the other on
the E2d of May preceding, and due oulioe
thereof given. He was nUo iodorser of a note
of John Cooke due aaid bank, payable on tha
I9th of November, 18ID, which was alao duly
protested, and notice thereof given. On the
17th of Msy, 1819, he made an assignment of
all his estate, real and personal, to *ae- ['111
cure the United States, to whom he waa in>
debted, and all other creditors, wliicb was re-
oorded the same day, but never was aoccpted
by tha trustees, and became inoperative.
In 1820 the complainants, as executors, ad-
ministered on the estate, when they called on
the bank to allow tbem to transfer the atock
belonging to the estate; which was refused by
the bank on the claim of a lien for the amount
of the above notes, of which they demanded
payment before they would permit a transfer
thereof on their books. Suits were afterwards
brought by the bank against the executors to
recover the amount of the three notes, in one
of which they obtained a verdict; on the two
others verdicts were obtained in favor of the
executors, on the plea of tlie act of limitations.
In 1827 the executora filed their bill on the
equity side of the Circuit Court, prayine for a
decree to transfer the stock dischargKd from
any alleged lien of the hank for the debt due
by the teetator, on the ground that being a
debtor to the United States to a large amount,
and hia estate insufficient to pay his debts, the
debt due to them ought to be first paid, pursu-
ant to the provisions of the fifth section of the
Aot of 1797 (1 Story, 464, 4SS), and that tha
debta elaimed by the bank were barred by the
aet of limitations, and the verdict rendered for
the defendants. Thaa ai« the only queatlona
in tha oaao.
The Act of Congreas referred to la In theH
words, "that where any revenue officer or other
CiTwm hereafter becoming indebted to the
nited States, by bond or otherwise, shall be-
acme Insolvent, or where the eetate of any de-
oeased debtor, in the handa of executors or ad-
mlniatratora, shall be insufBcient to pay all
debta due from the deceased, the debt due to
the United SUtes shall be first aatiaflird.
it has been the uniform construction of this
act, and the similar provision in the sixty- fifth
eeetion of the Collection Act of 1799 (1 Story,
630), that whether in a case of insolvency,
death or assignment, the property of the debt-
or passes to the assignee, executor or admin-
istrator, the priority of the United States op-
erating, not to prevent the transmission of the
property, but giving them a preference in pay-
ment out of the proceeds. Conard v. The At-
lantic Insurance Company, 1 Peters, 439.
This preference is in the appropriation of the
debtor's estate; ao that if, before It has at-
tached, the debtor has oonveyed or mortgaged
hia property, or it has been transferred in the
ordinary course of business, neither are over-
reached by the statutes (1 Peters, 440); and
it haa never been decided that it atTecta any
liei^ genera] or specific, 'existing when ['111
the event took place which gave the United
States a claim of priority. In the case of
Conard T. The Atlantic Insurance Company,
above quoted, in Conard v. Nicholl, 4 Peters,
291, and Conard T. The Pacific Inauranee
•u
SoraraiK Gomr or nu Ummi Staim.
ISM
Companjr, 0 Petsra, S62, £TB, thU court ootiiid-
ned the cfTt'ct of the priority of the United
6t«tM In eases where their debtor had taken
np money on respondentia bonds, on an agree-
ment that the bill of lading of the goods there-
in mentioned should be indorsed to the tenders
U a collateral aeenrity for the loan; that the
return cargo should be consigned to them on
tbeir account and risk, the bills oi lading to
be w) expressed, indorsed in blank and deliv-
•red to them, and the property be delivered
to the order of the shippers, u a continua-
tion of the collateral security. This was held
in all these cases to amount to a transfer ol
the absolute legal right to the property oom-
posing the return cargo to the holders of the
bonds, BO as to enable them to recover their
Tklue from the marshal, who had levied on
them by virtue of an execution at the suit of
the United States, and detained them aft«r
a demand of delivery. They recovered dam-
ages commensurate with their legal right of
property, and the court would not inquire
irbether, in any event, the lenders on respond-
entia could be eonsidered as trustees for the
borrower, his creditors or asaigns, deeming it
immaterial. S Peters, 272.
Another rule is settled by these eases — that
the priority does not attach t« property l^al-
ly transferred to a creditor on respondentia,
Uiough he may hold it subject to an account,
equi^ or trust for the borrower. Such trans-
fer will be protected against the United States,'
though not an out and out sale in the course
of business, so u to devest the equitable aa
well as the legal interest of the party. Such
a transaction approiiraatee to one which mere-
ly gives a lien; its object is security, not a
sale: it is in taw a sale by the shape of the
contract and Becuritips, but if the goods were
of greater value than the debt due, equity
would compel an account for the surplua, con-
sidering the whole transaction to have been
one of loan and priority merely. On the other
hand, if the borrower, his creditor or assignee
should come Into equity to ask such account,
it would be decreed to bira only after the
payment of the debt due, the holder of the
security would be allowed to retain it for
such purpose, however defective it might be at
law. Nor would a court of equity tuke from
the lender any legal right which he might have
<13*] to the possession of the 'property, or to
prevent its transfer to another, whereby such
right would be impaired, it this conduct had
been bona fide.
Whatever may be the defects in the rights of
a bona Bde creditor at law, equity will protect
him in their enjoyment till they are toat at
law,'if his conscience is not so alTected as to
bring him within the jurisdiction of a court
of conscience, which does not administer legal
remedies for legal rights. Its action is on
equitable rights, by er|Uitable remedies, or legal
rights for which the law provides no remedy
(3 Peters, *47), or none so adequate as equity,
so beneficial or eomplete. g Wheat. 646. This
is a case of that description, or the plaintiffs
to enforce it, plain, adei]uat« and complete at
Iftw, the aixteeDlb section ol the Judiciatj
Act (1 Story, SS) Is a proviso on the juto
diction of a court of equity, and it is not ■
case in equity, under the third article of Us
Constitution.
In the bill of the eomplainants, they do not
contest the Hen of the bank by any paramount
right in themselves aa executors; they are the
mere conduits through whom the United
States claim the benefit of the legal priority
given them by law, which the executors are
compelled to assert in order to save themselvea
from the eonsequences of their paying any oth-
er debt than that due to the United States
before it Is satisfled, as prescribed by the six-
ty-Dfth section of the Collection Act.
If Mr. Brent was aueh a debtor as is con-
templated by the law, and died without prop-
erty sufficient to pay hia debts, the right to
satisfaction out of hia estate, in preferenoe to
any other creditors, is undoubtedly in tbe
United States. The record does not contain
any evidence of insolvency, but as the case has
been argued on the assimiption that it existed,
and that Mr. Brent was a debtor within the
purview of the law, the court will so c<msider
him and his estate. Assuming, then, the right
of the United States aa respects the expcuton
and all his creditora except the bank, to pri-
ority of payment, to be complete, we find them,
through the executory, plaintiffa in equity,
claiming a decree for the transfer of the stock
of the testator standing on the books of tbe
hank, in order to have it sold for the exclusive
payment of their debt. A court of law cannot
do thia, for by the eleventh section of the l>ank
charter, the stock is transferable only on tbe
books of the hank, according to inch rules as
may, conformably to law, be established tn
that behalf by the president and Mi- [*S14
rectors. Davis's Laws Dist. of Col. 224. On
a similar provision in the charter of the Union
Bank of Georgetown, this conrt, in The Union
Bank v. Laird, declared that "no person coulil
acquire a ^egal title to any aherea except un-
der a regular transfer, according to the rule?
of the bank." 2 Peters, 393. The exccutora
cannot sustain a suit at law in their own
right, for refusing to permit such transfer, in-
asmuch aa, by another clause of tbe s:Line ar-
ticle in the charter, it is provided, "but all
debts actually due and payable to the bank
(dnys of grace for pajment being past) by a
stocUh'.ldi^r requesting a transfer, must be sat-
istied before such transfer shall be made, unless
the president and directors shall direct to the
contrary."
As Mr. Brent owed the debts now einimcd
by the bank on tbe notes due and protested
before his death, this would he a complete
answer to a suit at law by his executora for
not permitting a transfer, and tbe same ob
jection would be fatal to a suit in their nam*
for the use of the United Slates. The defenw
had
perfect'right to hold on to the atock,
id this court has decided, in the case o(
lie of the hank imposing bmA
Laird, that a
a restriction on the transfer of stock
formable to law. 2 Wheat. 302, 393.
The United States have no pretense of B le
gal right to a transfer of tbe stock to them
selves, or to recover damages for refusing it
Peters 10
1839
Um ri^t to hold tba stock devolves on tbe
ateeutoTS, to whose hands it muit come for
Mie and distribution; the procceilB, not the
itoeic, go to tlie United States in virtue of
thpir priority; such are the words of the '~ —
— "the eslntp of M17 deceased debtor ir
hands of eiccutors or administrators."
conipelted to come into equitj for a remedy to
enforce a l^^al right, tlie United States 1: — *
come as other suiiors, seeking in the admi
trcUon of the Uw of equity, relief; to give
which, courts of law are wholly incompetent,
on account of the Jecal bar interposed by the
bank. This court, m The United States v.
MitctK'll, 8 Peters, 743, have recoijniied the
Crinciple in the common Ian that though the
iw gives the king a bettei " "
lent remedy, he has no betl
than the subject through wham Ihe pi^portf
claimed comes to his hands. 2 Co. Inst. ST3;
S Tea. Sen. 296, 207; Hard. 80, 460. This
principle i* alao carried into all the atatatea.
bj which the appropriate courts are anthor-
iMd to dedde, ana under whioh thpy do decide
on the rights of a subject in a controver^jr with
the king, accordinK to equity and good con
science between subject and subject. 7 Co. 19
ff Bard. E7, 170, 230, 602; 4 Co. Tnst. 190.
• 1ft*] *It is not difficult, in this ca«e, to de-
cide what the rules of equity and good cm-
■denes require. Hie bank have lent their
money on the name, credit and stock of Mr.
Brent, before the United States could have any
ctafm irf preference. Two notes were due, pro-
tested, and the legal lien of the bank for their
payment complete; as to the third, the time
for repayment bad not arrived before such
right attached on the property of Hr. Brent
h> the hands of his executors, but it was eon-
fined to what belonged to and was part of the
assete erf the estate. The right was a legal
one; the claim of the United States was a
statutory one, but its existence was not fonnd-
lOected, and bv law they held the legal
control of the transfer of their stock; their
consent was necessary to the transmi<)8ion of
the legal title to the eiecutors, and the only
nonnd on which thi' aid of a court of equity
fs asked to compel them to give their consent,
is k legal claim to the proceeds, by a right
whicl) will deprive the bank of all security lor
Umif debt. In good conscience there can be
no elalm more equitable than that of the bank
for money lent, and If the law has placed them
on the tabula in naafragio. It little comports
witb the principles of equity to take it from
them merely because, by the death of Mr.
Bt«nt before the protest of the third note, the
i^a.1 lien, secured by their charter, had not
become consummated before the legal risht of
tbe United States had attached to priority of
payment out of his estate. An individual as-
serting such a claim in equity against the
buik, in virtue of an act of bankruptcy, an
■xecutiiMi or assignment, between the date and
the protest of tbe note, would be compelled tu
do equity before he could enforce his Irgal
right; and we can perceive no reason why the
United States should b« exempted from thia
fnndsunentsJ rule of equity, subject to which,
Its oourts administer their remedy.
Krary stockholditr who draws or Indorses a
• !•.•«.
ei4
note to procure a loan from the bank. Is bound
to know the terms of the charter and by-laws;
his signature to the note Is an inchoate plecl;^
of his stock for security; his stock gives credit
to his name, and the bank grants the loan
on iU faith.
Though the charter has not made the note
a Hen on the stock till the note is prote.ited
so as to give the bank both a legal and equi-
table right to refuse the transfer till It is paid,
yet it has given them the power to prevent a
transfer unless on their books, by such rules as
they may prescribe, which gives them p<i\vcr
to prevent the legal 'title from passing [*6I0
to a purchaser. Connecting this with the
power to make by-laws for the government of
the bank and the management of their con-
cerns, the bank would have a strong case tn
equity, bad the latter clause In the eleventh
section of their charter been omitted.
Under the usual clause in the charter to
the Hudson Bay Company to make by-lawsi
liable for debts due to the cunipany by their
own members, or to answer the calls of the
company on their stock. One of the stock-
holders, indebted to the eompany for money
received for their use, became bankrupt; his
assignees brought a bill to compel a transfer of
his stock, which was opposed by the company
in virtue of their by-laws. The Chancellor de-
clared "the by-law a good one; for tbe legal
interest of all the stock is in the company, who
are trustees for the several members, and may
order that tbe dividends to be made shall be
under particular restrictions or terms; and by
tiM same reason that this by-law is objected
to, the common by-laws of companies to deduct
the calls out of the stocks of the members re-
fusing to pay their calls may be said to be
void.'^ ChUd V. The Hudson Bay Co. 2 P. W.
207, 200; B. P. 1 Str. 648; 1 Eq. Cas. Abr. 9,
pi. B; 13 Ves. 428, 429.
In Wain's A<>signees v. The Bank of North
America, it was held by the Supreme Court of
Pennsylvania that when, by the known usage
uf a bonk, the stock of a debtor was not trans-
femble till the debt was paid, such usage was
binding on his assignees; the bank having, by
their cnarter, power to make by-laws, and hav-
ing made one requiring all transfers to be
made on their books, in the presence of its
officers. S 8. ft R. 73, 86. In giving such
power by charter, and executing It by such a
by-law, the intention of the law of incorpora-
tion ii, moat evidently, to give a security t
tbe bank: by permitting a trsjisfer and giving
a certificate to the holder, the bank give up
all claims on the stock; the legal right to
pervise the transfer was intended for theii
lienefit. On this principle, this court say, "no
person, therefore, can acquire a legal title to
any shares, except under a regular transfer,
according to the rules of the hanic; and If any
I>erson takes an equitable assignment, it must
be subject to the rights of the bank under thn
act of incorporstinn, of which he Is hound to
take notice." £ Wheat. 803.
The principle of these casei covers the pres-
ent in all its bearings. It is admitted that the
bank have a legal right to withhold the tians-
fer 'till paj'ment of the notes pro- ['S17
555
lit
SunKKC Ootttr of tbB tlintn Sritltt.
ISM
tMtcd In the r,Ut\me of Mr. Brent; th« cmb
!■ cqunllv cleai in equit; as to tha notes !n-
doned iiy him Knd diBCounttd by the b*nlc,
though ni)t protected till after hU death.
A commUsion of bankruptcy relates to the
ict of bankruptcy, having the effect of sti ai-
ecutlon; it prevents the transTnissioti □[ the
bankrupt's property Irom that time to any but
hi* aasipie^s; the game effect follows a volun-
tary aqaigntncnt, both operate to transfer the
troperty itself, whereas the priority of the
'nited Statr^H attaches only after the transfer
Is made by the party, or by operation of law at
his death. If. then, the lien of a corporation
attaches to an actnal transfer of the stock, so
as to make It subject to all their equitable de-
mands upon it, a fortiori, it must remain on it
when a i)rrfiTreil creditor can claim payment
only out of the proceeds in the hands of the
assignees, or personal representatives of the
So long, then, as thia note remains dne and
unpaid, the complainants are not entitled to
a transfer of the stock owned by their testator.
But thpy aile^ that the debt is extinguished
by the verdict in their (avor, rendered on a
plea of the statute of limitations.
In The Bank of the United State* v. Don-
nelly, 8 Peters, 361, this court laid it down aa
an established principle that the Act of Limit'
ations operatrd only to bar the remedy, not to
extinguish the right or cause of action; and
that a juilf-mctit on a plea of the statute was
only to bar tlie remedy on a contract, when
■ued (or in Virginia, as the Limitation Act of
that State embraced the one declared on, but
did not operate to extinguish the contract when
•ued for elsewhere, or in Kentucky, where, by
tlie lex loci it was not affected by any limita-
tion, lb. 370.
We cannot take tlila case out of thia estab-
lished rule; the Ic^nl remedy ts barred, but
the debt remains as an unextinguished right:
uid the bank, when aalled into a court of
equity, may hold to any equitable lien, or
other means in their h.inds, till it is discharged.
The decree of the Circuit Court is affirmed.
This cause came on to be heard on the tran-
■cript of the record from the Circuit Court of
the I'niled States for the District of Colum-
bia, holden in and for the County of Washing-
ton, and was argued by counsel; on consider-
alion whereof, it is decreed and ordered by
this court that the decree of the said Circuit
Court in this cause be, and the same U hereby
afflrmed with costs.
«18»J •THE UNITED STATES
JOSEPB GAKDNEa.
Indictment (or counterfeiting a Spanish coin.
r CorslDK > sliver coin ol Spain,
..-K-""'-""
called a
r plec
mmrd
made ciirreal In Itie United
ho head piBiareen It no part
Br. Tbal sueb plilareen
"'" ol Spain mad*
It by law Id (be United Stat
ON a certfflcatfl of division in opinion of the
judges o4 the Circuit Court of the United
6t*tM for the District of New Jeraev.
At Oetobet- term, I83S. the defendant waa
indicted In the Circuit Court, for that he,
"Joseph Oardber, late of the township of
Bloomfleld, in the Conn^ of EUsex, and in the
District of New Jersey, on the I5th dav of
JUne, ib the year of our Lord I8;iS. with force
ftnd arms etc., at the township of BruomHeld,
in the County of Essex, in the District of New
Jersey aforesaid, and within the jurisdiction of
thia court, did falsely and feloniously make,
forg« and countorfeit one hundred pieces of
false and counterfeit coin, each piece thereof
in the resemblance and similitude of a foreign
silver coin, to wit, a silver coin of Spain, called
a head ptstareen, which by law was then, and
still I* made current in the United States of
America, against the form of the statute of the
United State* of America in such case made
and provided."
The second count in the indictm.-'nt chaived
that the defendant "did feloniously and inll-
Ingly aid and assist In falsely and felonloualy
makine, forging and countcrfi^iting one hun-
dred pieces of false and counterfeit coin, eacb
piece thereof In the resemblance and similitade
of a foreign silver coin, to wit, a silver coin of
Spain, called m head pistarecn, which, by law
was then and atlll is made current in the Unit-
ed States of America, against the form of the
statute of the United States of America in audi
case made and provided,"
The jury found the following special verdict :
"That the said defendant, Joseph Gardner, did
make, forge, and counterefeit four pieces of
false and counterfeit coin, eseh piece thereof
In the resemblance and similitude of a foreign
silver coin, to wit, a silver coin of Spnin, called
a hejid pistarecn. In manner and form as stated
in the said Indictment. That genuine coin of
the description of the suld head 'pis- [*•!•
tareen haa for many years last past be?n In
common circulation in the country. That the
same has commonly passed at the rate of 20
cents each; that few of them arc now in cir-
culation. That they are still received and paid
ftt the said rate of 20 cents each ; tliat tliey have
been sometimes sold at the rate of 52 cents
each. That their average value by weight is
between 23i cents, and 22J cents each; that
their average value by assays at the mint of
the United States Is IQ cents 7 mills eacb.
That the said genuine coin called head pi^ta-
reens have on their face the samp charnc)(-rs as
one class or Icind of the Spanish dollar and
hair-dullar. excepting the letter and figure *
R on said pistarecns. 4 R on the said half-
dollar, and B R on the said dollar, and thus
purport to be quarters of said dollar. That
said dollar is of the weight of seventeen penny-
weights and seven Rroins. and the said half-
dollar is the one h.-itf of the weight of said dol-
lar. That the said dollar ii of the weight re-
quired by law; is as Spanish coin, genuine and
milled, and passes current as a dollar- That
the snid hBlf-dollar I* oomm^inly circulated at
the rate of SO cents each; and that the said false
and counterfeit pisces of coin ma'le by the said
defendant, with the said dollar and half-dollar,
with other Spanish ooin given in evidence tn
the said jury, an now presented to tne aald
court as a part of this their finding. Bat
whether or not upon the whole matter afor*'
said, bf the juror* aforeaaid, In form atoi*-
The U.nitcd Statm t. QAiontt.
eii
"And if upon the whole matter ftforeMJd tt
•hall seem to the Mid court thftt the wid Joseph
Gardner is guilt.T in manner and farm &■ lis
■tuidB elmrgrd in stiid indictment, then tlie
jurors aforesaid, upon their oath aforesaid, H.7
that the said Joseph Gnrdner is guiltj thereof
in manner and form as he stanils char}[ed.
But If upon the whole matter aforesaid it shal]
Be«in to the said court that the said Joseph
Gardner is not puiity in manner and form as
he stanils ch.irgi^il in said indictment, then the
jurors aforesaid, upon their oath aforesaid, aa;
that the said Joseph Gardner is not guitty in
manner and fcrtn as he standi charged in the
wJd indictment."
The judges of the Circuit Court were op-
fioaed !n opinion on the foIIowiDg questions In-
nrived in this special verdict:
I. Whether the head pistareen, so-called, Is
a part of a Spanish milted dollar,
flXO*] *£. Whether such pistareen or piece
«f coin fs a silver coin of Spain, made current
b7 law in the United SUtes.
Tliese iju est ions were, at the request of
the district attorney of the United States,
■t«.ted under the direction of the judge^s afore-
aaJd, and ordered by the court to be certified
under the seal of the court to the Supreme
Court of the United States at their next session
to be held thereafter, to be finally decided by
the said Supreme Court; and the court being
farther of opinion that further proceedings
oould not be had in such cause without preju-
dioe to the merits of the same cause, did order
that all further proceedings on the said indict-
ment be stayed until the dpcision of the Su-
preme Court shall be remitted to the said Cir-
cuit Court, and then entered of record.
The case was argued by Mr. Butler, Attor-
ney-General, for the United States, and by Ur.
Southard for the defendant.
Ur. Justice Thompton delivered the o^nioa
of the court:
This case comes np from the Circuit Court
of tlie United States for the District of New
Jnaey, on a certificate of division of opinion
in the court- The prisoner was indicted for
falsely niaking and forging one hundred jiieces
of false and counterfeit com, each piece in tlie
reaemblance and similitude of a foreign silver
coin, to wit, a silver coin of Spain called a head
pistareen which by law is made current in the
United States of America, against the form of
the statute in such case made and provided.
ThEa indictment is founded on the twentieth
■ection of the Act of Congress of 1826 (7 Law>
U. S. 400), which makes it felony, punishable
t>y fine and imprisonment at hard labor, to
fotge Mid countorfeit any coin in the reaem-
td«nco or similitude of say foreign gold or sil-
ver ooln, which by law now is, or hereafter
ni*7 be made current in the United CJtataa.
Upon the trial of the prisoner the jury
found a special verdict. And the judges were
apposed in opinion upon the following quea-
tfnu arising on the special TBrdict; 1. Whether
tk0 head pistareen, ao eallsd, is a part of a
t Ik ed.
Spanish milled dollar, t. Whether such pis-
tareen, or piece of coin. Is a silver coin of Spain
made current by law in the United States.
And these questions have been certified to thia
court for decision.
That the coin commonly called a head pis-
tareen may be a part of a dollar, in reference
to its divisibility only, and when understood in
the some sense as any other subdivision of a
Spanish dollar, may be 'admitted, [*S9I
without affecting the main question in this
ease. If such part has not been made current
But It Is presumed that this first question
is to b« taken in reference to the ofTcnse
charged in the indictment, and the facts found
by the special verdict, and with this under*
standing of It, the two questions may lie oon-
sidered together, and involve thes:inie in:^«ir^,
viz., whether such pistareen is a silver coin of
Spnin, mode current by law in the United
, Sta,tes. Such is the description of foreign
coin, the counterfeiting of which the law has
declared to be a felony. The special verdict
(Inds that genuine coin of the description of
the head pistareen has for many years last past
Ijeen In enmmon circulation in the country.
and generally passed at a rate of 20 cents each;
that lew of them are now in circulation; that
they are stilt received and paid at the rat*
of 2D cents each; that their average value h)
weight la between 251 cents, and 221 cenli
each; that their average value by a<!ssyB at the
mint of the United States is 10 ccnU 7 mills
each. The jury present with their verdict
certain silver coin of dilTerent denomination^
with the following description and remarks.
"That the genuine coin called head pintareens
have on their face the same characters as one
class or kind of the Spanish dollar and half-
dollar; excepting the letter and figure 2 R on
said plstareens, 4 R on said half-dollars, and
8 R on the said dollar, and thus purport to be
quarters of said dollars. That said dollar Is
of the weight of seventeen penny iv eights and
seven grains, and that said Vlf-dollar Is tlie
one half of the weight of said dollar. That
the said dollar if of the weight rei^uired by
law, is a Spanish coin, genuine and milled, and
passes current as a dollar."
Thus it will be seen that the pistareen passes
for 20 cents, or one fifth of a dollar, although
it purports to be a quarter of a dollar or 2S
cents; so that its current, a* well as Its real
value, is uncertain. And whether it Is to b«
considered as a coin made current by law. Is
only to be ascertained by a reference to the
laws of Congress on this subject.
By the Act of 1792 (2 Laws U. S. 203, see.
B), establishing a mint and regulating the coin
of the United States, the several denominations
of silver coin, are declared to be dollars, half-
dollars, quarter- dollars, dimes and half -dimes,
and the value of each is established. Tli" Spnr).
ish milled dollar, as the some was then ia
the
And the subdivision or parts of the dollar,
according to the above d en nmi nations, are
'adoptod as the most convenient divi- [*632
sion of a dollar. And in the following year,
1703 (2 Laws U. 8. 32B1, an Act was passed
regulating foreign coin, by which, among other
things, it is dechired that foreign silver coir
6K1
BrmEui GoTTR of trk Difimt SrAxn.
1S3S
•hkJI pau current u money within th« Unit-
mi States, snd be k legal tender tor the pnympnt
of »1) debta and demandi, at the rat» tlit
whereof ahall not be less tlian aeventeen peniiy-
weights and Mven trrains ; and in proportion for
the parts of a dollar. The dollar and parts of
the aoliar are here mads current by law, Wlial
is here meant by parts of a d[)llHrT The parts
of a dollar having bern recently fixed and de
flood in our domeBtie coin, it is no mnre than
reasonable to eonclude that the parts of a doi
lar here adopted in relation to fDrei;.'n coin,
sre referable to the same denomination in thf
subdiviaion a* exlahlistied in the damc^tic cnin.
The value of the forcip dollar is fixed in cents,
at 100 cpnts, according to the denomination
of the mint; and the same rule would apply to
the parts of a dollar when valued in cents;
and there la no denomination of silver valued
at 20 «cnta, the value of the pistareen found
by the jury, Bj this act no foreign coin is-
sued after the 1st day of January, 171)2, shall
be a tendT. until samples thereof shall have
been found, by assay at the mint of the United
States, to be conformable to the respective
standards required. And It is also declared
liy this act that at the expiration of three
years next ensuing the time whi.-n the coinage
of irold and silver, agreeably to the act m-
tebliahing the mint, shall commence at the
mint of the United SUtei, all foreign gold
coin and all foreiRii silver coin, except Spanish
milled dollars, and parts of such dollars, shall
cense to be a legal tender. And it would be
incongruous to suppose that if these foreign
coins, if nrit a legal tender, would be considered
as made current by law. And it is also priy
rided by this act. in order to fix the time when
foreiffn coin should cente to be a tender, that
the President shall make prnclamation of the
tine wlien such coinage shall commence. The
Presidpnt, accordingly, on the 22d of July,
1707, issued his proclantation, announcing the
time when the coinage commenced at the mint,
and declaring that all forel;;n silver, e>:ci'pt
Spanish milled dollars and parts of such dol-
lars, will cense to pass current as money on-the
ISth of October tW next.
That the policy of the govemmi^nt was to
withdraw from circulation, or at least not to
recognize as a coin made current by law, forei$;n
eofn, as soon as our own coinage was sufficient
«aS>] to answer the 'metallic circulation, is
fairly to be inferred from the provision that all
foreign gold and silver coin (except Spanish
milled dollars and parts of such dollars] which
shall be received in payment (or moneys due
the United States, after coinage shall begin at
" ■-', shall, previous to there being issued
currency under
coinage, and according to our own denomina-
tions, it Is reaaunnble to conclude that the parts
of a Spanish milled dollar mentioned in this
law. and in all tlie legislation on the subject
when the same language is used, is in reference
to the part* of a dollar according to the decision
In the ut Of 17B2. The act of I7B3 was In
its
p«rt repealed In IBM (4 Laws U. S. ZO) ; and
another law regulating the currency of loreign
coins passed, and directing at what rate aueb
foreign coin shall pass current, retaining tba
same standard of weight, seventeen penny-
weights and seven grains, as the Spanish milled
dollar, and in proportion for the parta of «
dollar; and directing the Secretary of Um
Treasury to cause assays of foreign gold and
silver coin to be had at the mint, (or the pnr-
pose of enabling ConeTess to make such altera-
tion in the coin made current by that act ss
may become necessary from the real stajidard
of such foreign coin; all looking to the aanM
policy with respect to the establishment of oar
own coinage, and in reference to the denomina-
tions in the la\* of ITBZ. By the Act of 1800,
|4 Laws U. S. 07), for the punishment of
counterfeiting the current coin of the United
Statei, It is made felony to counterfeit any
gold or silver coin which by law now «r«,
or hereafter shall be made current, or be Id
actual use and circulation as money within the
United States, clearly embracing money ii
circulation which was not made current by
law; and in this class or description may b«
embraced the small silver foreign coin under 2S
cents, in circulation here. But by the Act of
1625 (7 Laws U, S. 400, sec. 20), under whitA
the prisoner Is indicted, thla class of enrrency
is omitted, and the offense is confined to coun-
terfeiting such foreign gold or silver coin which
by law then waa, or thereafter might be mad*
current in the United States. The jur7, by
their special verdict, find that the bead
pistareen has tor many yean past been in «oDa-
man circulation in the country. The counter-
feiting of such coin, under the Act of ISM,
would he felony; but not under the Act ol
1S25, unless ft is a coin made current by law.
from this view of the several acts of Con-
gress, there is at least 'reasonable [*fl94
groiuids to conclude that when the terms "part*
of a dollnr" are used in these laws, it is in ref-
erence to the division of a dollar, as established
at the mint; and there being no such part as «
twenty cent piece, or fifth of a dollar, we think
the pistareen fa not a coin made current bj
law. But if this is a doubtful construction of
the act, it ought to be adopted in a caae no
highly penal as the present.
We are accordingly of opinion that the qne»'
tions certified to this court must be answer«d
in the negativ*.
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United States for the District of New Jer-
sey, and on the questions and points on which
the judges of the said Circuit Court w«t« op-
posed in opinion, and which were certifled ta
this court lor its opinion, agreeably to the net
of Congress in such case made s^d provided,
was argued by council ; on consideration
eat, it IS the opinion of this court, flrat,
that the head pistareen, lo called, is no part
of a Spanish milled dollar; and ateond, that
such pistareen or piece of coin is not a ailver
coin of Spain made current by taw in the
United States. Whereupon, it If ordered and
adjudged by this court tiiat It be ao oertifled to
said Circuit Court.
Peten I*.
II1A4U) RT AI. T. WALLACB A
) H'LMLLIH *t OS.
•IS*] 'JOHN M-LEARN et al., slinu ■
nbjceU of Um Sing of Grekt Britain, A
JAMBS WALLACE, k eitiien of the Stttt« of
Q«orgi«, adminfairaitor of James Hendtey
U'LMni, and Arrhibald M'Lellan, ct ux..
aitimu of the SUtt of South Carolina.
JAMES WALLACE, a citin-n of the SUte of
Georgia, administrator of Jamea Uendlcy
H 'Learn, Deceased,
JAHES WALLACE, a eitisen of the SUte of
Georgia, adminiitratoT oi Jamea Handle j
MXearn, Deceased.
ABCHIBALD Ml-ELLAN et nx., dttiena of
tfaa SlaU or South Carolina, and John
U'Leam et al., alieni and lubjeota of the
King of Great Britain.
IHatributioB of decedent's eatata hi Georgia.
A tract of land Id the State of Qaor^a wai pui^
Aaaed hj A. U'Le&rn. od which be established ■
rln plantation, put sISTei upon it. paid pnit □[ Ilm
parebuie moneT. gure ■ ijiagmeat tor the balance,
and died. leaTlnf a son, James H. U'Lesrn, his
^lMr^mrB : wbo, to Obtain possexion of tbi- Miate.
1 [he land and slaves for the balance of
iient. A Judgment, under the laws of
ftinds perwtiBl as well as real pronertT.
The son died, part of the debt being uasatlsUed,
IsBTliiK aa bu nearest of kin, aliens, snd s[so
Mora remote kindred who were ell lie as of the
Dnited BtatM. The ml estate was sold to salist/,
aad did utlsfr tbe mortgage. The peraonal estate
waa sold br the eieculor. The aliens, who were
neareat of kin, claimed tbe proceeds at the per-
■wal estate. Tbe kindred ot tbe deceased, who
were more remote, bat who were cltlieae of Che
United States, clslmed that tbe personal estate
Sbonld bare been appropriated to pay the mart-
■ua, and that not bavlng been so appropriated.
&)T weraentlUadto tbe moue]P srlsing fr- '-
SSjuds
a tor the Taiue
0( kin not b<
'S
; the slice
e real
deocenL The
law af Qeorsia to
held that
bad been
their reipectlTi
rdebt, not corerei
of the pemonal ea
at botb the real and pcrsoi
(targed with the mortgase debt, both (onds
be aiwlled. In proportloi]
•monota. to It* paimeat,
by tlie mortgage, to be paid
tats. The neareet of kin. m ibme uib nraiuun ui
tbt proceeds of tbe personal estate, and Ibe re-
■wter kin. cicliens of the United BUtes. to take
the nsldae of tbe proceeds of the real estate, and
the rial ealata niisold.
APPEAL fram tbe Circuit Court of the
Uoited SUtaa for the Diatrict of Georgia.
•SC*] *AT«Ubald M'Lcam, a native of Scot-
land, and afterwards a citisen of the United
Statas, purebaaed a tract of land called Gow-
lie, and a amal) ialand in Chatliani Countv, In
tlM State of Georgia, on which he established
a riee plantation; and haying paid part of the
poTchaae mon^, a judgment was obtained
againat hlm for the balance. Re died, having
dniaed tha whole ot hie eatat«, real and per-
BDnal, to Ua mb, Jamea H. M'Learn. The
property of the teatator consisted ehiefly of
he plantation in Chatham Cnunty, and the
ne;;roes by vliich ft na.<t eultfTated. By the
taws of Georgia, all the property of the tea-
>ntor, both real and personal, was bound by tha
juiltn^ent against Archibald M'Leam.
Jamea H. M'Leani. hoWing under the will
if his father Arcliibald M'Leam the whole at
his estate, thus encumbered by the judgment
for the balance of the purchase money dua for
the land. In order to obtain posaesaion from the
exectitora of the will, who ineistcd on keeping
poueesion until the debta due by the testator
were paid, gave to the creditor of hia father
his bond for the unpaid balance of tha pur-
chase money, and cxecubid a mortf^age to
secure the payment of the bond, on the land,
and on the negroes belonging to the eatata.
He paid a part of the debt, and died without
isBUe, and intestate; leaving a balanoa of thv
oric-inal debt for tlie purchase money unpaid,
and secured by tha bond and mortgage.
The mortgagee foreclosed the mortgage, and
sold the lar:d for $19,736.13, thus satisfying
the whole of the clnims of the creditors of
Archibald M'Learn and James H. M'Leani for
the original purchoae money of the real eatate,
and for the Interest on the same.
James Wallace administered to the estate of
Jamea H. M'Ifam, sold all the personal prop-
erty, and after paying all the remaining debta
of his intestate, there was a balance in his
hands, in 18-13, exceeding CSl.OODi which ba
invested, by agreement of all interested, for
the benefit of whoever might be entitled to the
The nearest of kin to Jamea H. M'Leani
were John M'Leam and others, who were
alions, residing, at the time of the decease
of the said Jamea U. ftl' Learn, in Great
Britain, and were subjects of the king of that
The wife of Archibald M'Lellan wa« mora
remotely related lu blood to the intestate, and
she and her husband were citizens of the State
of South Carolina, at the time of his decease;
and she was the nearest of kin to him, capable of
inheriting his real estate, according * to [*SZ7
the lawa of Georgia, which do not allow alien*
to inherit land. As the next of kin capable of
inheriting, they claimed the real estate of
James H. Ml-eam.
John M'Learn and wife, and the aljcna
nearest of kin to the intestate, filed a bill in
Llie Circuit Court of the United States for the
District of Georgia against James Wallace, ad-
ministrator of James H. M'Learn, and againtt
Archibald M'Lellan and wife, the remoter kin-
dred of the intestate, citizens of South Caro-
lina. The hill prayed that the complainant*
ahould be deela:^ entitled to the estate, real
end personal, of Jame* Hendley M'Learn; that
the same ahould be delivered to them, and the
caah in the hand* of the administrator should
be paid to them. Tbe bill also prayed that
Archibald tI'LclIan aid trife should be decreed
to have no Interest in the real eatate, and for
other and further relief.
Archibald M'Lellan and wife filed a bill In
the same court against John M'Learn and
others, the alien kindred of the intestate, and
against Jame* Wallace, his administrator. Tbt
HtiFsnn CoDBT or tbk Uifino SrAxn,
bm prkjrcd tbat the oomplminKnU may be de-
cUtm entitled to to much of the real eita.t''
of Jamei H. M'Learn as remaintfd unsold: that
the alien kindred of tlie said Jamr's should h'
decreed to have do fntcrfst in the lands, anJ
that the Bdministrator should be decreed tu ac-
Mtut to them for the whole of the personal
eatate remaining ftfter the payiaeut of the
debt* of bis intMt*te, ftnd to account to them
for the amount of the saJee of the land, and
to p^y to them the ralue of the said Innds sold
out of Uie proceeda of the personal ^iiate re-
maining unadministered, and for other and
further relief, etc.
James Wallace, the administrator of James
H. M'Leam, filed his hill of interpleader.
claiming the protection of the court, exhibiting
ao account, and olTering to deliver the unad-
ministered part of the estate to auch partj as
the court maj adjudge to be entitled to re-
ceive it.
The Circuit Court decreed that Archibald
M'Lellan and wife, aa the neareit of kin to
Jamea H. U'Leam, capable under the laws of
the State of Georgia of inheriting real estate,
they bein^ citizens of the United States at the
time of his decease, were entitled to the whole
of the real estate of which James H. M'Leam
died seized and possessed ; but the same having
been sold, the court allowed them the money
For the part sold, and all the real estate unsold,
and to John M'Leam and the aliens, the court
allowed the remaining part of the estate, after
the payment to Archibald M'Lellan and wife
of the sum of 116,730.13, the amount the
•28*] plantation sold for, less 'the costs of
suit, etc. The sum decreed to be paid to John
H'I«arn and wife amounted to CI ,557. 36.
The administrator, Jamea Wallace, was de-
creed to pay those sums to the parties resgiect-
ivel^, and to deliver the title deeds, etc
f^m these decrees, John M'Learn and others,
aliens, appealed to this court.
The case was submitted to the court on the
part of the appellants by Mr. Berrien, on a
printed arir<unrnt handed to the court by Mr.
White, and was arf;ued at the bar by Mr.
Preston for Archibald M'Lellan and wife.
Certificates from gentlemen of diatiiisuished
l^ial acquirementa, and many of wlioin had
held hign judicial stations in the State of
Georgia, were laid before the court in support
of the construction given by the counsel for
the appellnnts of the laws of Georgia, and the
application thereof in eaae* of intestacy in the
gourts of that State.
Mr. Bcirien contended:
1. That the debts of an intestate, whether by
■imple contract or by specialty, are chargeable
equally on his real estate anil peraonal estate
In Georgia. The law of England, whii'li de-
slarei the latter to be the primary fund for
that purpose, and marshals the asseti to en.orce
that liability, hy the exoneration of the real
«ita.te, is not the law of Georgia.
2. Even in England, the debt for which the
{and was sold, under the mortgage given by
James H. M'Leam, bavins been contracted by
Archibald M'L«arn, and being for the unpaid
purcliase money of the same land; such debt,
notwithstanding the bond and mortgage given
^y James U. M'Leam, ought, as between hi*
vrMcutatives, to ba charged on the land.
10
ii( the land c
t be charged to the perBon«l
The printed argument of £Ir. Berrien waa
prefaced by the following "preliminary m-
"The d^rees of kindred of the re*pe«tl*a
parties are not In controversy — neithsr ia tha
account of the administrator; but there ia out
question to which the attention of the eonrt la
called, before entering into the general argu-
ment, because it decided in favor of the com-
Iiluinant 'in the Brat bill, it disposes uf [*«S*
the whole case. It ia, whether those complain-
ants, although aliena, and therefore incapubla
under the laws of Georgia, of holding the real
estate specifically, are not, under tbow laws,
entitled to its proooeda. Prince's Dig. 13S,
art. IS.
"Although aliens are Incapable of holding
lands, they are entitled by this act to lake tba
proceeds ot r«al estate, as devisees, or next of
kin, of a deceased citisen. It recites that vex*
atlous lawsuits had been prosecuted by tho
escheatora a^inat the estates nf eiti^'po". vhn
hod bequeathed their estates to persons rpsiding
in foreign parts, and provides that their Linda
may be sold, and the procreds paid over. Tb«
words of the recital are confined to persons dying
testate, citizens who bequeathed their estate*;
hut the enacting clause applies also to casea of
intestacy, for it authoriEcs the executor or aA-
niinistrator, to sell such real estate, and pa/
over the proceeds to the devisees, or iegiU rep-
rrsentatives of the deceased. It authari7«s this,
however, only where the citizens shall die, leaT-
ing no heir who can inherit the same, because
of his being an alien; and the argument against
which we have to contend is that when any of
tbe kindred of the deceased, however remote,
are citizens, their claims as to the real ratate
will prevail over those of the deviaeca, or
nearest of kin, being aliens. Such is the letter
of the act, the words being, 'shall Irnve no
heir.' etc., etc, Sed qui l>:rret in litera. hsret ia
cortice. Its manifest intention is to remove tbo
disability of alienage from the next of kin, or
deviae of a citizen; and these words, 'ahall
leave no heir,' etc., etc., may, without any nc-
travagance ot version, be construed as equiva*
lent to a provision in the following worda:
'shall leave next ot kin, or devise to persona
who are incapable a1 taking becauw of their
being aliens.' It waa the design of the Leyia-
lature to permit a citiEcn to leave his real es-
tate to the natural, or selected objects of hi*
bnunty. not sprcifically, tor that the policy ot
the law was supposed to forbid, hut by a sale
and delivery of the proceeda.
"This view is conRmed hy the Act of 17S».
which declares tbat 'should any case arise
which is not enpreasly provided for by this act,
respecting intestate's estates, the same shall be
referred to and determined by the common law
of the land as it hath stood since the first art-
tlement of this State, except, only, that raal
and personal property shall always be eon-
sidernl, in respect to auch distribution, aa be>
ing precisely on the same tooting.' Kow, here
is a case of distribution of an intestate's w-
IVM
ftrUuBN R AL. V. Wallao and M'Lellar I
ux.
■10*1 *'i<'Mruln([ to tlir Argument w« kre eon-
tcfltin]^. the real and prraonal e8tat« would be
dispiMPil of in a dilTerent manner. But the act
ItMtl declares that the eommon law, modified
bf itn own express provisions, shall eonstitute
the rule. The common law Inhibit* an alien
from holdinz real estate, but permits him to
hold personaltf. This act provides that these
two species of estate* shall be precisely on tb«
nine footing in respect to distribution. How
are these conflicting prnvisinns to be recon-
ciled T Must the disability of alienage, which
the cnmmnn law conlines to the realty, be ex-
tendf'd to thp personal cMate. or ahall the priv-
ilege of holding personalty be extended to the
real estateT It U only in one of thess two
modes that the requirement of the Act ol ITSO,
that real and personal estate shall be in respect
to distribution precisely on the aame footing,
ean be complied with, unlens bv a liberal Inter-
preUtlon of the Act of 1810 (Prince, 136), the
eUim of the alien to take the proceeds of the
Mtate. Is admitted."
1. Upon the first point, it was contended that
the course of legislation in Georgia bad been
uniformly to put real and personal estate on
the same footing for the payment of debts, as
well u for other various purposes. Tlie doe-
trine of the common Ian of EiTgland, which
gives lard to the heir, and chattels to the exec-
utor or administrator, has never been recog-
nised in the State. Both species of property
pssa unner the laws directly to the executor or
■dministrator, to be applied by him as assets
In pftyment of debts, or for distribution among
the next of kin of equal degree.
No person is known under the laws of
Georgia as heir, in contradistinction to the dis-
tributees of a decedent^ as they are identical ;
luilcaB in such a case as this now before the
eourt, where it Is said the disability of alienage
tntervenrs to incapacitate the nearest of kia
from taking the real estate. But in this ease,
the tnoie remote kindred must sustain their
et^nii if it may be Bustained, under the statute
of diatributions of Georgia, and do not take by
deacent at common law.
In support of these positions, he cited, Wat.
Dig. IS, E9, 313, 414 1 Prince's Dig. Sfi9, art
160; Prince's Dig. 160, art. 42.
The courts of Georgia have given etfeet to
the provisions of the constitution and laws of
Qeoreia which have been cited, and have re-
jected the distinction which exists under the
law of England between the heir of the real,
and distributee or representative of tbe per-
•onal estate, and with It tbe power which Is
6S1*] exercised by the 'English courts of
idiAncery of marshaling the assets of ■ deced-
ent's estate, aa between these parties.
By the laws of Georgia, lands aa well u
(bttels may be taken in executlMi and sold in
precisehr the same manner. The former are
asaets for the payment of debts in the hands of
an executor or administrator, primarily or
squally with the personal estate, and without
any proceeding against the heir to render them
K>. That such is the law of Georgia was recog-
nifcd bj this court in tlie case of Telfair v.
Stead's executors, 2 Cranch, 400; 1 Peters'*
Cond. Rep. 211; cited, also, Prince's Dig. 211,
SlZ,art. 12; Dawson's Dig. 216; Dawson's Dig.
■Mt Prinoe's Dig. 108, art. 2>.
and statute law of Great
Britain, which were "usually In force in the
Province of Georgia, in May, 1776." and not
eonlrary to the constitutiun, laws and form ol
the government of the State, were declared to
be in force "until repealed, amended, or other-
wise alUred."
It is necessary, then, that KI'Lellan and wife,
who seek to enforce what they conceive to be
the English rule in this case, should show, af-
firmalivety, that it was usually in force In
Georgia in 1776; and negatively, that '.t has
not been sincp repealeil, amended, or otherwise
alterpd; which is believed to be impossible
The onus is with them. But if this were not
and the decisions of our courts will show,
affirmatively, that it is not ^.he law of Georgia.
The whole course and spirit and purpose of
the laws and decision! o( the courts of Georgia
have been In opposition to the rights which, in
England, form the poli^ which there prevails
in favor of tbe heir. The law of descents of
Georgia is different The right of creditors to
enforce the payment of their debts is dilTercnt;
and tlie niarshnling of the assets of a decedent's
estate is fixed and regulated on dissimilar prin-
2. Will the English rule, whieb is appealed
to in behalf of M'Lellan and wife, sustain tbeir
pretensions, the debt which has been paid by
the sale of the land, having been oviyinnlly
contracted for the purchase of tbe same!
Judgment for this debt was recovered against
Archibald M'I.«arn in his lifetime, and by tlt«
law of Georgia, it bound all his property, and
the plaintilT in the same could have levied for
tbe debt an either the real or personal estate,
or on both.
Bucb was the state of things on the death of
Archibald M'Leam. 'The judgment [*SSS
remained in full vigor; was an incumbrance
upon his estate, and capable of being enforced
against his property, real and personal, in the
hands of its executors. James H. M'Learn,
who was the general devisee of his father
Archibald, on coming of age, in order to ob-
tain possession of the property from the exec-
utors, and on tbeir requisition, substituted his
bond and mortgage of the land and negroen
devised to him by his father, and on which
this judgment was an incumbrance.
The only change effected by this was to con-
vert tbe Keneral lien exisUng under tbe Judg-
ment on all the property of Archibald H'Learm
into tbe speoific lien created by the mortgage
on the property mortgaged, and to release tbe
remaining property, which is shown by the
accounts of the administrator to have been very
amall, from the lien of the judgment
Now, keeping In mind that this was original-
ly the debt of Archibald M'Learn, contracted
by htm for the purchase of this very land
which is now claimed by U'Lellan and wife,
and consequently that it did not, as in the ease
of money taken up on mortgage, inure to the
benefit of bis personal estate; it is submitted
that even upon the principles of equity appli-
cable to the subject, which are recogniied in
the English courts of chancery, no one of these
circumstances can, nor can all of them com-
bined, throw this debt, exclusively or prlmari-
Ij, on the peraonal ertate of Jamea U'Learn
SuPBntE COUBT OF TBI Uld
We ftre not now called upon to considei _.._
Han which a vendor has for unpaid purchaw
money, •• aiyainat hii vendM^. or a purchawi
the vendee of the land-, one claEming the land
purchased, the othir admitted to be entitled I
ttw penonaltj, and both aaeerting their claiir
under the statute of diatribuUona of Qporgii
Aa between them, until the purchase money :
Cld, it lemaina chargeable in equity on tli
id purchaaed. Neither la this a questio
whether the general, real or personaf estate
■hall be charged with this debt. The inquiry
fa more eirople. It is whether the specific lani
purchased but not paid for by Archibald
HnL«am, shall bear its own burden. Whether,
upon any principle ot equity, M'Lellan and
wife can claim this land under the atatute of
distributlouH of Georgia, and make the other
kindred claiming under the same statute, who
Iian no interest in it, and neltber have derived
Bor can derive any benefit fiam it, pay its
price. Ca«ea cited and examined as applicable
to this point: Hughes v. Keamoy, 1 Gch. A
•«S*] "Lefr. 13; Pollexfen T, Moore, 3 Atk.
236, £72; Cumberland v. Coddrington, 3 Johne.
Ch. Eep.,2B2; Evelyn v. Evelyn, 2 P. Wms.
664; Mathewaon v. Hardwick, 2 P. Wms. S64,
note; Billingshurst v. Walker, 2 Bro. Ch. Rep.
004; Bassett v. Percival, 2 P. Wms. 6f14, note.
In concluding the argument on this point, it
waa submitted that aa this debt was originally
contracted by Archibald M'Leam, and was a
lien upon hU property at the time of his death;
Mid ej James H. M'Leam did not, by giving
his bond and a mortgage on the same property
which was before bound, make this his own
iAt, so as to throw it upon his personal eetate,
M between the representatives of James H.
Uljearn, it ia not a debt exclusively charge-
able upon his personal estate, even according
to the rule In the English Court of Cliancery.
3. The third point is not presented by the
appellanta aa if this were a ease for contribU'
tion. It is 'admitted, indeed, that James H.
MXeam, who was the proprietor of the whole
eatate, had a right to charge any part, or the
whole of it, with the payment of this debt; and
that, in point of fact, he has so charged certain
rckl and personal property belonging to the ea-
tbe real estate be sustained, it will result that
teal and personal property, subject under the
mortgage to a common burden, has become
Tested in difi'erent persons; but it Is also to be
remembered that this incumbrance waa created
bf the purchase of the real property mortgaged;
that the debt, to satisfy which tjiis land was
■old, waa the unpaid balance of the purchase
mouey of the same land, for which the pur-
ehaaer and hia heirs, however indefinite the
aeries, were but trustees to the vendor, until
the purchaae money waa paid.
Aa the court gave no opinion an the fourth
point, the argument is omitted.
Ur. Preatou, for the appelleea.
Tbe construction given to the law of Georgia
(Prinoe'a Digest, 136, art. IS) b/ the oounaal
(or the appelUnt*, is denied. It is contended
that tbe proceeds of land will, under this law,
SI to Mom, ftlUwugh the real eatate eould
■I
not have gone to them Kfter the deatk «f ibe
The law referred to by the eounael waa not
Intended to remove the diaahilities of altena,
and this Is shown in the title and purpoee
'of It. It is an act to explain tbe ea- [*«S4
cheat laws. It had no view to extend or mod-
ify the rights of aliens. The Act of 1810 waa
intended to explain the Act of IBOS, and to
correct the abuses under it. The law is con-
strued to extend to cases of testacy, and to put
an end to the vexatious act* of the escheaton.
By the laws of Georgia, aa they exist, allena
cannot inherit real eatate, tbe estate is east by
descent on tlie heritable blood. The real eatate
go together. Aa they take the real, ao they
ought to Uke both.
If this is the law of Georgia, then the appel-
lees, M'Lellan and wife, take all the property
of James H. M'Leam, both real and personal ;
and as the proceeda of the real estate have
been absorbed in paying a debt due by, and
which ought to have l>een paid out of the per-
sonal estate, the balance in the hand a of tbe
administrator should be paid to the appelleea.
The Circuit Court baa decided that the lial-
to the nearest of kin. This i* not according to
the law of Georgia.
In 170S aliens were, by the laws of Georgia,
allowed to hold real eatate by devise; hut tliis
act was repealed in the following year. Walk-
er's Dig. 600. Thua the Legislature, by posi-
tive enactment, declared their detennlnation
that none but citizens of the United State*
should hold a fee-simplif estate in land*.
Aa to the position of the appeltant'a counsel,
that real estate is chargeable equally with per-
sonal estate by the law of Georgia, this is de-
nied. It is admitted that the whole eatate of
one deceased is liable for hia debts, but tba
primary fund ia the peraonal property.
Attempts have been made in that St«te to
make them equally liaUe, but they have not
succeeded so aa to make them inseparable. The
heir-at-law takes the real estate, and the execu-
tor takea ths personal property; and after the
debts are paid, it goes, if tney are not alie^
the personal representatives. The exec
must pay the debts out of the personal assets,
and if any oonatruction of the law prevails ao
as to apply the real estate in equal responsibil-
ity witik the personal, it ia in opposition to tb*
plain meaning of the law.
What is the fixed and settled general law ot
the State of Georgia cannot ba readily ascer-
tained. It is difficult to obtain reports of the
decisions of the courts, and there haa been
hitherto no court of errora or appeals having »
general and final jurisdiction over cases which
*h»ve been decided in the courts of the [*SSft
State. What rights over, and what interests
the real estate of a teatator, do executors ma-
in under ths laws of Georgia! Frinea^
ftigest, 17 B.
The law authoriies executors to make titles
to lands which the testator, in his lifetime, con-
tracted to sell and convey. If the executors
took the landa, tiiey oould sell and convey witb-
PetoM Itb
I«W
U'Lulbn r al. t. Wu.l*cb urn M'Lnujt r ex.
Mt radi proTiaioiii In the same _
tkty may tell personal propertj. "Ilie law,
bowe*er, imposes peculiar Mlenmitiea, which
must, in eases of sales of lands, be observed b;
■xseutora. It is ttierafoTe apparent that lands
sn not assets in the hands ot an executor. Uy
the law of 1810 it must be admitted that real
propertj cannot, in case of intestacy, go to an
•lien. Prince's Digest, 156. Can the proceeds
of raal estate, sold after the decease of the in-
iHtate, go to auch alit-n! The law is clearly
established that such proceeds have all the
charscteriatics of the realty, and are governed
b^ the same rules, and subject to the same
nehts as the real estate was.
What has an executor to do In Georgia T The
law provides only for bis care and distribution
of the personal estate, and is silent as to the
realty. Prince's Dig. 171.
In all the States of the Union, personal prop-
erty is first made applicable to the payment of
debts due by a deceased person.
In £ SrCord's Clianccry cases, it was held
that the English rule prevailed in South Caro-
lina. As between creditors, this was of no
moment when they sought to enforce the pay-
ment of the debts due to them, but as to all
othera the law is different.
The heir is entitled to the proflts of the real
eatate iinnediatety after the death of the per-
son last seieed, and the executor takes the per-
sonal property. This shows the dilTerenee be-
tween the rights of pejaons interested, and the
dear distinction between them. The heir holds
the land until it is sold, and even in the case
of a will giving executors power to sell land, no
title to it is ^iven, and the heirs continue in
possession until the sale.
Mr. Justice Wayne stated that In Georgia
executors never sell land for payment of debts,
but by order of court. The some law prevails
in Georgia as in other SUIes.
Tha common law of England is in force In
Georgia except when altered by statute, and it
certain Ijr (-annot be claimed that at the common
law such a right as that which is asserted by
the appellants would prevail.
•Se*} 'As to the second point presented by
the eoonsel for the appellants, it is contended
that no proceedings by the creditor of the in-
teatate can impair or affect the rights of the
heir. The creditors cannot decide who shall
suffer by his actions, the heir or the next ot
kin. He has a right to his debt, but the rights
of others, after his debt is paid, are left where
ks found them. By what rule will the court
decide that the creditor may despoil the rights
of tbo hrirt
It is important that the court shall look at
Uw facta ot this case, in considering the ques-
tlana ftrisinir on this point. The estate of
James H. HXeam was not, at the time of his
death. liable for the debU ot his father He
had extinguished the debt dne as the purchase
. ,. .J jj.^
a the
f unpaid purchase money, that the
land was sold by the mortgagee.
This court has decided that the equity ot the
vendor for pnrchaaa money aziata only when
he has taken no additional security tor hit
debt. So, too. It is waived by changing the se-
curity, and this is considered as waivins the
Suitable lien. Brown v. Gllman, 4 Wheat.
; 4 Cond. Rep. 44S; same point, 1 Mason,
IBl.
This was done by the creditors of Archibald
M'Leam. They took the bond and mortngs
of James H. M'Leam, and they ceased to havo
an equitable lien on the land for any balance of
the purchase money.
The court will then sustain the decree of tha
Circuit Court as to the proceeds of the real es-
tate remaining in the hands of the administra-
tor. It is alxo asked that they -will refuse to
the appellants the portion of the proceeds ot
the persona] estate which that court gave to
Mr. Justice MTean delivered the opinion of
the court:
This case is brought before this court by an
appeal from the decree of the Circuit Court ot
Georgia.
From the evidence In the cose, it appears
that Archibald M'X«im purchased a tract of
land in the State of Georgia, on which he es-
tablished a rioe plantation, paid a part of ths
purchase money, and suffered a judgment to be
obtained against him for the balance; that be
afterwards died, leaving James H. M'Learo,
his only son and devisee; that the property of
the deceased consisted chiefly of the rice plan-
UtioD 'and the slaves by which It was C*«SI
cultivated, and that under the laws of Georgia,
personal, as well as real property is bound by a
judgment That the devisee, to obtain posses-
sion of the property, gave his own bond, sa-
cured bv a mortgage on the land and slaves,
for the oalance of Uie judgment ; he afterwards
died, leaving a part of this debt unsatisfied; and
that afterwards the mortgage was foreclosed
and paid by a sale of the land.
The complainants are aliens, and being near-
est of kin to the deceased, claim as heirs, under
the law of Georgia, the personal property, and
also the proceeds of the real estate, after ths
mortgage shall have been paid.
The defendants, M'Lellan and wife, who ara
more remotely connected with the deceased, be-
ing citizens, claim the real estate as heirs, and
contend that the debts should have been paid
by a sale of the personal property, and that, as
the real estate has been sold for this purpose,
they insist that the proceeds of this sale should
be paid to them out of the personal prop-
erty.
It appears that after the sale of the land, on
application of James Wallace, the administra-
tor, the persona] property was sold; and the
moneys arising from this sale, as also a sur-
plus, after paying the mortgage, from the sale
of the real estate, remain In his hands; and
which he is ready to pay over, as the court
■hall direct. The relationsliip of the respective
parties to ths deceased, as set forth In their
pleadings. Is not disputed.
On the part of the complainants It Is eon-
tended that, beine next of kin to the deceased,
under the laws of Georgia they inherit the per-
sonal property and are entitled to the prooeedi
on the sale of the lands. That the personal
properU goes to them, notwithstanding their
KM
637
SunBME Couan or tmk Uritd Statis.
■IleiMge Is not eontrovcTted by the defendftnts;
but they tnsiat that the complain»nta are not
entftled to the proceeds of the real estate.
By an Act of the Legislature of Georgia en-
tltlnl "An Act to exprain and amend the ea-
ebeat laws," passed the 15th December, IBIO,
ft is provided "that in all cases where a citizen
of this State or the United States shall die
or nay have died, posaedsed of or entitled to
ftny real estate, and shall leave no heir who can
inherit the same, because of him or her being
alien ; that in such case the said real estate
ahall not be held or considered subject to es-
cheat, but the executor or administrator of such
deceased citizen shall and may proceed, in the
manner pointed out by lav, to make sale of
aS8*] such reel 'esUte, and pay over the pro-
ceeds of such sale to the devisee or devisees
named in the will of such deceased citizen,"
etc.
The preamble of this act refers only to the
estates of citizens of Georgia who bequeath
their property to persons residing ia foreign
parts, but the l!rst section seems to refer an
well to cases of intestacy as where wills have
hern maiie.
The complainants contend that the words In
this statute, "shall leave no heir who can in-
herit," should be construed bi mean, shall leave
no heir next of kin, or devisee, who can in-
herit, by reason of alienage; that then the real
property ahall be sold and the proceeds paid
over as by the act is required. And that this
construction will give effect to the intention of
the Legislature, which was to remove the dis-
ability of alienage from the next of kin or dev-
isee of a deceased citizen.
It does not appear that a construction of this
statute has been given by the Supreme Court of
Georgia, and we think the construction con-
tended for is not authorized by the words of
the statute. Where a citizen shall die leaving
no heir, must Trean not the next of kin, but an
heir that may inherit the real estate under the
lawa of Georgia,
In the present ease, the wife of M'Lellan,
though remotely connected with the deceased,
{• within that degree of consanguinity which
may claim the inheritance under the law of de-
scents; and of course the land In Question de-
scended to her, and consequently it cannot be
■old under the law of escheats, for the benefit
of the foreign heir.
This construction Is not shaken by the Act
of the S3d December, 17S9, which provides
that, "should any case arise which ts not ex-
Eressly provided for by this act, respecting in-
'states' estates, the same shall be referred to
and determined by the common law of this
land, as it hath stood since the flret settlement
of this Btate; except only, that real and per-
sonal estate shall always be considered in re-
spect to such distribution, as being precisely on
the same footing."
The ease under consideration (s not unpro-
vided (or by the laws of the State; as the per-
sonal property goes to the next of kin, though
ithey are foreigners, and the land descends to
jthe domestic heir.
In the able printed argument of the com-
plainants' counsel. It is contended that the real
trator; and ■ great number of statutes an I*
ferred to in order to sustain this position Th*
'administrator, it is said, may sell the [*•!■
land and convey it under the sanction of the
court; and that in many cases it is sold for Uu
payment of debts, in preference to a dispoaitios
of the personal property. And it ia stated that
in Georgia there is no marshaling of assets, m
in some other States. That the creditor may, ia
satisfaction of his demand, direct the personal
or real estate to be sold at his option, and that
the same option may be exercised by the de-
fendant in execution.
It Is unnecessary to refer to the various stat-
utes of the State which have been noticed bj
the counsel for the complainants. They are
similar to the statutes of other States wbick
make the real estate of deceased peraons sub-
ject to sale for the payment of debts, and, un-
der the sanction of the court, on the applica-
tion of the administrators, authorise the sale of
such estate. But this does not show that, ia
the ordinary course of administration, the per-
sonal property is not the primary fund for the
payment of debts. Indeed, from the oath of the
executor or administrator, and his prescribed
duty, as well as various provisions In regard
to Uie sale of land for the payment of dehU, it
would seem that the personal property in thi
State of Georgia, as m, perhaps, every other
State in the Union, should be exhausted, except
under peculiar circumstances, before the land
The general management of the real estatii
it seems, in Georgia, during the minority of th*
heirs, devolves upon the executor or adminit>
trator; and from the representations of certain
gentlemen in the State, who have held high ja-
dicial stations, it appears that the executor oi
administrator does exercise a very great, il
not unlimited control, over the management o(
the real estate of the deceased. It is insisted
that the real estate descends to the administra-
tor as aaseta, and that he may bring an actim
of ejectment in bia own name to recover ths
possession of it.
As there are no regular reports of judicial
decisions in Georcia, we can derive but littls
aid from the adjudication of ita courta on ques-
tions which arise under the local law. But in
the view which we have taken of thi* cas«, it It
of no importance to ascertain the reapectlve lia-
bilities of the personal and real estate of de-
ceased persons for the payment of debts, nor,
indeed, what may be the duties of an executor
or an administrator in the settlement of an es-
tate. These would be important in a contro-
versy between the representatives of the estat*
and its creditors. The case under consideration
•does not arise from the claim of cred- ["«<0
itors, but it Involves the rights of distributee*.
And these rights are not aSected by the ordi-
nary course of administration, but depend upon
the peculiar facts of the ease.
Had the debt for the payment of which ths
land was sold been an ordinary debt existiu
against the estate, and the payment of whieB
was expected to be made by the common conrM
of administration, there could be little or no
dimculty in deciding that it should have bea
paid out of the personal assets; and as It had
not been so paid, to direct, as prayed for by
M'Lellan and wife, Uiat the payment fram lh«
MlMias mt AL,r. Wallaob un> VTLmll^ji mt ux.
rMl MUt« tnould be n-Imbuned bj « lale of
Ui« penonftl.
At th« deceaae of Jamee H. MXuni, his es-
tate, both real and personal, was encumbered
b; a mortgage, for the payment of which the
land was sold. And thi* mortgage was given
Id discbarge of a judgment which was obtained
againat his father, Archibald M'Leam, in his
lifetime, and which bound the real and personal
property covered by the mortgage. A consid-
erable part of this debt was incurred, it seems,
by the purchase of this plantation. But the
argument that the vendor and his assignee have
an equitable lien on the land for the purchase
money, seems not to be well founded.
That this equitable lien exists equally In the
hands of the vendor or his assignee, is a well-
settled principle; but the lien was discharged
t^ the mortgage, which added a large amount
ol personal property to the real estate to secure
the payment of the purchase money.
To learn the nature of the incumbrance on
the estate, we must look to the mortgage and
the judgment, both of which created a lien
upon the whole property, and also to the debt
Of the vendor, for which the judgment was ob-
tained. The lien under the mortgnge was mora
favorable to the estate than the lien under the
judgment for which it was substituted, as it
nve time to the devisee, and placed the estate
In his possession and under his control.
With this incumbrance, created in the man-
ner and under the circumstances stated, did
tbja estate, both real and personal, on the de-
cease of James H. M'Learn, descend to his
heirs I The personal estate goes to the foreign
heirs, and the real estate to the domestic,
and this gives rise to any difficulty which exists
in determining this eon t rove ny.
If the whole estate descended either to the
• 41*] foreign or domestie 'heirs, it woulld be
■a ordinary case of distribution, and it could
be ft matter of little importance whether the
mortgage were paid by a sale of the real or
personal property. But under the circum-
stances of the ease, it becomes a matter of great
importance to the respective claimants, out of
which fund this roortgaga debt shall be paid.
The payment of it out of the real or personal
Eroperty, will leave but a small balance to the
eirs of that fund.
The principles of this ease are not changed
by the sale of the property. The funds realized
from the sale, in equity partake of the same
eharacter, and are subject to the same rule as
tlie property which thef represent. It is, there-
fore, a matter of no' unportance whether the
debt has been paid out of the personal or real
fund, or, indeed, whether it has been paid at
all. The court must consider the case as
though the real estate were still vested In the
Saatfa Carolina heirs, and the personal property
In the heirs who live in Scotland. In the final
decree, it will be necessary to act upon the
fniids as they now exist in the hands of the
admi n Istrator.
The Important question must now be oonsid-
ered, how this mortgage debt shall be dis-
charged. Shall It be paid out of the real estate,
or out of the personal, or out of both.
That the land should not be wholly exempt
from this Incumbrance Is eUar by every rule of
eqnl^ whieh appliea to eusa <4 thia deaerlp-
1 1«- ed.
tion. In addition to the consideration that the
mortgage binds the land, the fact that a con-
siderable part of the debt was incurred fgr its
purchase cannot be wholly disregarded. Nor
would it comport with the principles of equity
to make tlie whole debt a charge upon the land,
to the exemption of the personal property, as
the lien of the mortgnge covers the personal as
well as the real properly, and as at least a part
of the debt was contracted on other accounts
tlian the purchase of the land.
The rights of the foreign heirs, under the
laws of Georgia, are to be regarded equally as
those of the domestic heirs. Each have inter-
ests in the property of the deceased, which are
alike entitled to the consideration and protec-
tion of a court of chancery.
Suppose James H. M'Leam had died leaving
a wilt, by which he devised different tracts of
land to different persons capable of taking by
devise, and the entire real estate was encum-
bered bv a mortgage, or other lien, which, after
the will took efrect, had been paid by sale ol
one of the tracts of land. Could a court of
chancery hesitate, In such a case, to require a
contribution from the devisees, not affected by
*the sale, so as to make the lien a [*«42
charge ujpon all the landr The plainest dic-
tates of justice would require this, whether re-
gard be bad to the rights of the devisees, or
to the intention of the testntor. And is not
the case put analogous to the one under con-
sideration T
By the act of the elder M'Learn, his prop-
erty, both real and personal, was incumbered.
The heirs, both foreign and domestic, of the
younger M'Learn, who take this property, take
It charged with the continued incumbrance.
That James M'Leam had a right, and was
bound to continue this charge upon his prop-
erty, no one will dispute. He might have left
the debt, with the consent of the creditor, if
there bad been no prior lien, to be discharged
out of his estate, as tlie law authorized; and In
such case It would have been payable out of
the personal estate. Or he might have made
the debt a speciHc charge on hia [>ei'sonaI prop-
erty, or on his real; but he did either. He
charged its payment, in pursuance of the judg-
ment lien, on his property both personal and
This lien, as between the distributees, Sxes
the rule by which their rights must be decided.
The domestic heirs cannot claim to receive the
land free from the lien of the mortgage, nor
can the foreign heirs claim the personal prop-
erty exempt from it. In equity it would seem
that each description of heirs should contrib-
ute to the payment of the mortgage debt, in
proportion to the fund received. This rule,
while it would do justice to the parties, would
give effect to the intention of the ancestor.
That intention Is clearly shown by the lien
crested on the property, and by the rules of
equity, such Intention must be regarded.
The decision of this case must rest upon
familiar and well-established principles inequi-
ty, and these principles will be shown by a
reference to adjudicated cases. In the case of
PoUexten ». Moore, 3 Atk. 272, it appears
Moore, in his lifetime, agreed to purchase an
MS StmniB CouBT or t
Moore, by wHl, afUr giving m legacy of (800 to
the drfendant his sister, devisei the estate pur-
dmncd B.ni! nil his personal estate to John
Kpinj), arid makes him hia evfcutor. The execu-
tor commits a devaxtavit on the personal es-
tate anil dies, and the estate deacends upon hia
son and heir-at-law. PoUexfea brought bis
bill against the representative of the real and
personitl estate of Moore and Kemp, to be paid
the remainder of the purchase money. Mrs.
Moore, the sister and legatee of Thomns Moor«,
64S*] brings her 'cross bill, and prays, if the
remaindpr of the purchase money should be
paid to Pollexfen out of the personal estate of
Moore and Kemp, that she may stand in his
place, and be considered as having a lien upon
the purchftspd estate for her legacy of £800.
And the Lord Chancellor said "that the estate
which has descended from John Kemp, the
executor of Moore, upon Bayle Kemp, comes to
him liable to the same equity as it would have
been against the father who haa misapplied
the personiil estate; and in order to relieve
Mr«. Moore, I will direct Pollexfen to take bis
aatisfaction upon the purchased estate, because
he has an equitable lien both upon the real and
personal estate, and will leave this last fund
open, that Mrs. Moore, who can at most be
considered only as a simple contract creditor,
may have a chance of being paid out of the
personal assets."
Thia case nhows that in England the rule
which requires the personal property to be first
applied in the payment of debts, la deviated
from where the justice of the case and the
rights of parties interested require it.
Bad the debt due to Pollexfen been directed
to be paid out of the personal property, it
would have left no part of that fund to pay the
legacy of Mrs. Moore, and for this reason the
debt was decreed to be paid out of the land.
Now, It the mortgage debt, In the present case,
shall be directed to be paid out of the personal
fund. It would defeat the foreign heir*, whose
claim to this property, under the law of Geor-
gia, cannot be less strong than a bequest.
In 3 Johns. Ch. Rep. 252, it is laid down, m
between the representatives of the real and per-
sonal estate, that the land Is the primary fund
to pay olT a mortgage. And In 2 Bro, B7,
Ijord Kenyon, as master of the rolls, laid down
the same rule; that where an estate descends,
or comes to one subject to a mortgage, although
the mortgage be afterwards assigned, and the
party enter Into a covenant to pay the money
borrowed, yet that shall not bind his personal
n the question being raised, such
uniformly charged on the land. And this
principle is not changed where additional secu-
rity ha^ lieen given.
In the ease of Evelyn v. Bvelyn, i F. Wma.
DSe, where A mortg^fed the land for £1,B00,
and hli ton B eoTenanted with the assignee of
the mortgage to pay the money. He succeeded
044*] to 'the premises after the death of his
' father, and died intestate. The question was
whether his personal estate, under the cove-
nant, should be applied in payment of the mort-
gage) uid it waa decided that the land should
see
t UnnCD Statbs. 18M
be charged, and the eoroiant wu only eon-
sidered as additional eeeurity.
In the case of Waring v. Ward, T Ves. 334.
Lord Eldon aaya; "The principle upon which
the personal estate ia first liable in general
caaea it, that the contract primarily is a per-
sonal contract, the personal estate receiving the
benefit; and, being primarily a personal con
tract, the land is bound only in aid of the per-
sonal obligation to fulfill that personal con-
tract." It has long been settled, therefore,
that upon a loan of money, the party mi-aning
t« mortgage, in aid of the bona, covenant or
simple contract debt, if there is neither bond
nor covenant, his personal estate, if he dies,
must pay the debt for the benefit of the heir.
But suppose a second descent cast, and the
question arises, the personal eslAte of the son,
and fats real estate, deecendcd to the grandson:
then the personal estate of the son shall not
pay it, as It never was the personal contract
of the son.
And this Is the well-established rule on this
subject. If the contract be personal, although a
mortgage be given, the mortgage is considered
in aid of the personal contract, and, on the
decease of the mortgagor, his personal estate
will be considered the primary fund, liecaiiie
the contract was personal; but if the estate de-
scend to the grandson of the mortgagor, then
the charge would be upon the land, as the debt
waa not the personal debt of the immediate ao-
And BO, If the contract was in r^rard to the
realty, the debt la a charge on the land. It is
in this way that a court of chancery, by look-
ing at the origin of the debt, ia enabled to III
the rule between distributees.
In the case under consideration, the mort-
gage was given by James H. H'Lenm, but it
wo* not given to secure a debt created by him.
The mortgage merely changed the security, but
did not affect the extent of the judgment lien.
And this judgment was obtained, chiefly for the
Surcbase money of the estate. In eitect, the
ebt for which the judgment was obtained
against Archibald M'Leam, and for which the
mortgage was given, constituted an equitable
lien on the land; and had the mortgage cov-
ered only the land, it must linve been consid-
ered the primary fund. The debt for which the
mortgage was given was not the personal con-
tract of James H. M'Learn, but the contract of
his anccRter in the purchase of the estate. Bat
*if the contract was personal, and might [*t4S
have been a charge on the personal estate de-
vised to James a. M'Leam, yet the character
of the debt, in this respect, is changed in the
hands of the present heirs. In the language of
Lord Eldon, this debt cannot be a charge os
the personalty, because it was not created bj
the personal contract of James H. M'Learn.
This, under the authorities cited, would be
the rule for the payment of the mortgage debt,
it James H. M'Leam had not executed a mort-
gage on the personal as well as the real prop-
erty, which, a* devisee, he received from hi)
father.
This mort^[age on the personal proper^ ean-
not be considered in the light of additional
surety to the lieh which before existed. If It
could be oonsidered in this light, the land
would still be the primary fund, and the peracw-
Pcten !••
Wnuout *. Tbb Uitma SiAnw.
ftl mortgage ai suretj or auTtliar; to tht Unil.
But this inortc*ge can in no reapect be eonaid-
end aa additional surety. It mlglit bave been
to eonBidernl in reference to the equitable lien
of the vrndor for the purchaae nmnej, aa euch
lien waa limited to the land, but the lien of
the jnd^TTDrnt obtaiDed against tlte ancestor of
James II. M'Learn, and for which the mortgage
n-aa aubslituted, extended, as before remarked,
to the personal aa well aa real estate of the
The debt, then, for which the mortgage waB
^ven did not arise from the personal contract
of James H. M'Learn, but hj the contract of
bia ancpstor, and the mortgs|;e aa given In
discharge of the judgment. This created no
new lien upon the personal property, tt eame
to James H. M'Learn under the will of hia
father, subjEct to the lien of the judgment.
The mortgage, then, did not and was not in-,
tended to create any new charge upon the per-
■onkltj, but to continue, in a different form,
tiiat which already existed.
In this view the charge on the personal es-
tate can no more be disregarded than the
charge upon the real, and In this respect this
Aae differs from the cases referred to. The
charge on both funds, under the mortgage, may
be compared to a will devising the funds to the
respective heirs now before the court, as the
■ta.tute provides, and leaving the debt as a
ebarge upon his real and personal property.
Can any doubt that such a bequest would be
eonsidered by a court of chancery as a charge
upon lioth fundsT Now, although James H.
M'Learn has made no will, as in the supposed
caa«, vet he gav« • mortgage to continue the
charge on the personal proiwrty which existed
under the judgment, and the law of Georgia
•4«*] fixes the rale 'of deseeot. This act
of the ancestor, connected with the Oeorgia
taw of descent, gives aa decided and clear a
direction to the property, both real and per-
■ohaI, under the mortgage, as if In his last will
Junes U. M't^am had so devised it. Both
funds being charged with the mortgage debt
must be applied to its payment, in proportion
to their respective amounts. And as the prop-
erty, both reiil and personal, has been converted
into money, the proportionate part of each can
ba applied to this payment without difficulty.
And any debts of the estate not covered by
the mortgage must be paid out of the personal
fund.
Aa the decree of ths Circuit Court was not
made in conformity to this view of the case,
that decree must be reversed, and ths cause re-
minded to that court, with instruction to en-
ttr * decree in eonfonnity to this opinion.
This cause eame on to tie beard on the tran-
•eript of the record from the Circuit Court of
tbe United SUtes for the District of Georgia,
and waa argued by counsel ; on consideration
whsreof, it ia the opinion of this court that the
mortgage debt should be paid out of the real
Uld perscnnl property embraced by the mort-
moB pro rata; whereupon. It is ordered, ad-
^Mged and decreed by this court, that the de-
aree of the said Circuit Court in this cause be,
^Bd the same Is hereby reversed, and that this
otnie be, and the same ia hereby remanded to
tte aaid Ctreuit Court iMr forthv procMdliwi.
■ L. od.
THE UNITED STATES.
appofuLed undirr t
Z4iti of April, la
I by
rj, snd not thus*
I,' putjllshed br tbe adjutant
or the Arm;, eontalnlDe the
t the Artni, which are dellv-
Bird and determined hj acts ot Coneicss.
The registers are compilations Issued and pab-
llabed to the Armr bT the dlrecdoa ot tlie Becre-
tary ot War, In the exercise of bis official authar-
ItT : and when authenticated bj him. would be evi-
dence ot (be facta, atrlctly so, the/ maj contain ;
such at the names ot officers, dale ot commluloOB,
Era mot Ions, mlKiiatlous, and regimental rank,
revet and other rank, or the department of the
Armjr to which_offir — ■-■ — - -■' ' ~*
1 Interence be drawl
hey are provided (or b.
nlned by the cnurt whi
a Jury ti
from
with D
Bubjec
; who,
the Keneral arraDKemeat of armies, are supposed
to be eipert interpreters of Ihp acts of Congresa
lor the ort^aliatlOQ ot our Armj : alitl, what offl-
cera arc of tbe staff, or ccoersl slafT, depends upon
acU of Congress, which are to be eipounded by
the eoarts, when an olllcer claims a Judicial de-
termination of hli rights as to pav s— • '■•
ments from bis having been arraosed >i
to the stiS.
jnging
IN error from the DlstHet Court of the Unit-
ed States for the District of Missouri.
An action of indebitatus assumpsit waa in-
stituted at September Tenn, 1B32, by the Unit-
ed Btatea, in the District Couit of the United
States for the Missouri District, against Al-
phonso Wetmore, upon an account re^larly ad-
justed, settled and certified at the Treasury o(
the United SUtes on the 18th of November,
1S31. The account charged the defendant with
the sum of (3,388.18, "for difTerence of pay and
forage, between a major of cavalry and a maj-
or of Infantry, improperly received by him,
and now brought to his debit." At the foot of
tlie account there Is a statement by the sec-
ond auditor of the treasury aa fallows, "^he
same being the difference of pay and forage
claimed l>y him, between a major of cavalry
and a major 'of infantry, to which he is [*t4S
considered as not entitled by the accounting
officers of the Treasury of the United States."
The cause waa tried by a jury on the 6th ot
September, 1832, and a verdict was foiud for
the United BUtee.
The United States pn>duced and read in evi-
dence the duly certified transcript from the
treasury showing the amount oi the claim
against the defendant.
It was admitted on the trial that the defend-
ant had served as a paymaster (duly appointed
aa such) in the Army ot the United Statea
from Um aMd Uth dty of April. ISIS, to the
MI
Suruin Cotm lar m UHiitD StAin.
uld 3lBt iMj of Maf, IS31; and that the
amount stated in saic] ftccount and transcript
to be due from the defendant to the United
Staten consiBts solely of the difference between
the pay and emoluments allonvd by the ac-
counting ofRcen to the defendant, and the paj
and emoluments retained and claimed by btm
during the period of service aforesaid.
Tiie defendant claimed to be allowed for bts
•ervioe during the period aforesaid, the pay
and emoluments allowed, by taw, to other offi-
cers of the general staff of the Army of the
rank of major, and who are entitled to the
pay and emoluments of majors of cavalry.
He offered in evidence an army roister, pre-
pared and published hy the adjutant and in-
spector-general of the United States in 1816.
which register was delivered to the defendant
and other offleers of the army; in tlie register
the officers of the per department, created by
the Act of Congress of the 24th of April, ISIS,
are arranged as belnngins to the general staff
of the Army: which evidence was, on motion
of the plaintiffs, i-ejected by the court, to which
opinion of the court the defendant, by his
counsel, excepted.
The defendant also offered in evidence the
register of the Army of the United States for
tbe year 1S3I, prepared, published and sub-
scribed by the adj u tan t -genera 1 ; in which reg-
ister the oOiccrs of the pa; department are ar-
ranged under the head, and as appertaining to
the general statT of the Army; which evidence,
as onered, nas rejected by the court, and the
defendant, by his counsel, excepted to the said
decision rejecting said testimony. The defend-
ant then offered to read to the jury a general
order, dated, "Headquarters of the Army,
Adjutant-General's Office, Washington. 11th of
June, 1H32;" order No. SO, signed by the adju-
tant-general, and purporting to have been is-
sued by command of Major-Oeneral Alexander
Macomb, Commander-in-Chief, which order
84>*] prescribes tbe dress of 'the officers,
noni:ommissiODed officers, musicians, and pri-
vates of the Army, and other regulations of the
government of the Army; and contains, among
other thinsrSp the following, to wit; "the gen-
eral staff Is to Include the adjutant-general,
the inspectors -general, the aids-de-eamp, the
officers of the quartermasters' department, the
officers of the subsistence de]Mrtment, the
officers of tbe pay department, the officers of
the medical departtiu-nt, the commisaary-gen-
eral of purchasi's." To the reading which gen-
eral order, the plaintiffs, by their counsel, ob-
jected, and the court sustained the objection.
and rejected the evidence so offered; to which
opinion of the court the defendant, by his
counsel, excepts. Ko further evidence being
offered, the defendant moved the court to in-
struct the jury as follows;
1. That the defendant is entitled to the pay
and emoluments allowed by law to the officers
•f tbe fjeneral staff of the Army, of the rank
of major; that li to say, the pay and emolu-
2. That It the jur; find from the evidence
that the defendant was, from the 24tb of April,
1810, to the time of Uie statement of the ae-
•ouut read in evideaoaw an officer in the general
staff of tbe Array, he ie entitled, for Oi* Ubm
he has so served, to the pay and emoluments
allowed by law to the officers ot the general
staff of the rank of major.
Which instructions were by the court re-
refused, and the court instructed the jury tliat
tbe defendant, in virtue of his office, waa ta-
titled only to receive the pay and emoluments
of a major of infantry; to which opinions of
the court in refusing the instructions prayed
for by the defendant, and also to the instrue-
tions given, tbs defendant, by bis counsel, ex-
cepted. Tbe court sealed a bill of exceptions.
The District Court gave judgment on the
verdict in favor of the United States, Mtd tks
defendant prosecuted this writ of error.
The ease was argued by Mr. Jones for tke
plaintiff in error, and by Mr. Butler, Attonwj-
Ueneral, for the United States.
"It was wreed that the following doctiments,
facts and circumstnnces. omitted in the state-
ment contnined in the bill of exceptions, shall
be supplied by consent, and conaidered on tlw
argument and decision of this writ of error as
part of the case, in like manner as if tbey bad
'been aanexed to and stated in said [*6St
bill of exceptions, and had fonned part of
the original record, to wit;
"1. That the two army registers referred to
in the bill of exceptions, as printed and pub-
lished by order of the Secretary of War, in the
years 1816 and 1831, be annexed to this ease
and considered as jiart thereof, and of tbe rec-
ord ; and it is admitted that such registers were
prepared, and were issued and published to the
Army, by tbe direction of the Secretary of
War. in tbe exercise of bis author!^ as sadi
secretary.
"2. Tbat tbe general order. No. 60, of the
11th of June, 1832, referred to in said bill of
exceptions, be in like manner annexed to this
case and considered as part thereof, and ot the
record; and it is admitted bo be an authentie
general order, such as it purports to be, and
was TE^larly published and issued to the
"3. That the 'General Regulationa for the
Army,' printed and published by the War De-
partment in the year 1626, be in like manner
annexed to this case, and considered as part
thereof, and of the record; and it is admitted
that the same are the regulations established by
the President of the United States for tbe gov-
ernment of the Army, and were published as
his authority.
lat the custom and usage of the Amj
has always been to class the otlicers of the pay
department among the officers of tbe general
staff ot the Army.
"S. That since the Act ot the E4th of April,
1816 (6 Laws U. S. 79), for tbe organiiation
of the general staff, etc., it has been the inva-
riable usage and practice of tbe Treasury De-
partment, and of tbe proper accounting offi-
cers, to allow the pay and emoluments of ma-
jors of cavalry to the assistant adjutants-gen-
eral, to the assistant inspectors-general, to the
deputy quartermaster-general, and to the top-
ographical engineers; and since the Act of the
2d ot March, I8Z4 (S Laws U. B. 563), to
majors on ordnance duty, and to the qnarttr-
Petws !••
WRkohe v. Tb> U5iTtD Statss.
Hr. Justiea Wayac delivered the opinion of
the court:
This IB » writ of error from the District
Court of the Unit«. Stfttes for the D.strict
Court of MiuDuri, to li&ve a, judgment reverapd,
which wu rendered for the United States
■gaiuat the plftintifT in error.
It WM admitted od the trial that the defmd-
Mit hod served •■ pajimBster in the Ann;,
du); anpointed ob Buch, Iron the Zlth April,
1810, to the 31>t May, 1831. That tlie amount
• 51*] claimed from him *hy the United States
wax the difference between the paj and emol-
umrats allowed hj tlie accoimting oflicere of
the trefiBur; to the defendant, and the amount
claimed and retained by him durin? the
period of hie service. The defendant had
one published hy tne adjutant
^neral of the Ar^y in August, 1S16, the
other publialied in 1X31, which had been deliv'
ered to himself and other oRicers of the Army.
In both, the ofUcer! of the pay department are
■rrftQged as belongiig to or appertaining to the
general staff of tht Army. Ue also olTered as
evidence a genera! order, issued by the major-
general eommandfng in chief, dated at Hrad-
Suarters of the Army, Adjutant-General's Of-
ce, Washington, the 11th June, 1S32; which
directs, that the general stalT is to include the
officers of the pay department. These regis-
ters, and the general order, the court refused to
allow to be read as evidence to the jury; and
no further evidence being offered by the defend-
ant, he moved the court to instruet the jury —
lat. That the defendant is entitled to the pay
■nd emoluments allowed by law to the officers
of the general staff of the army of the rank
of major; that ia to say, the pay and emolu-
ments allowed to majors of light dragoons by
the Act of Congress of the IZth April, ISOS.
Ed. That if the jury find, from the evidence,
Uiat the defendant was, from the 24th April,
181S, to the time of the statement of the aa-
eoimt read In evidence, an officer in the gen-
eral staff of the Army, be ts entitled, for the
time he has served, to the pay and emolumentt
allowed by law to the ofScera of the general
ataff of the rank of major.
The court refused to give the instructions,
and instructed the jury tnat the defendant, In
virtue of his office, was entitled only to receive
thepay and emoluments of a major of Infantry,
These registers, however, and the general or-
der of the major-general, with the general ng-
nlations of the army printed and published by
the War Department in the year IB26, have,
■fnee the writ of error was sued out, been ad-
mitted, by the consent of the Attorney-Gen-
eral, to b« a part of the original record as it
they had been referred to and stated In the bill
of ezeeptlotii, and had been proved on the
trial. And it it further admitted by the Attor-
ney-General and the defendant's counsel, that
the custom and usage of the Army have always
been to class the officers of the pay department
among the officers of the general staff of the
652*] army; and that since the Act of 'the
Mth April, ISie, for the organiiation of the
■■aarat statt, aU^ It ha« been tba invariable
usage and practice or the Treasury Departnent,
and of the proper accounting officers, to allow
the pay and emolumenla of a major of cavalry
to the assistant adjutants-general, to the as-
, sistant inspectors-gener.l1, to the deputy quar-
termaaters-general, and to the topographical
engineers; and since the Act of the 2d March,
18:£I, to majors un ordinance duty, and to the
quartermasters.
It is but proper, however, to remark that the
court did right in rejecting the registers and
general order, when the defjnilaiit offered them
as evidence on tliu trial. The re^'isters are com-
pilations issued and published to the Army by
the direction of the Secretary of \\ ar, in the
exercise of Uia oOicial authority, and when au-
thenticated by him, would be eviJencc of the
facts, strictly so, they may contain; such as
the names of olhcers, date of cam miss ions, pro-
motions, resignations, and regimental rank,
brevet and other rank, or the department of
the army to which olliccrs belong; but from
none of these can an inference be drawn by a
jury to establish the pay and emolument of
officers; as they are provided for by law, and
must be determined oy the court when they
are doubtful, and the subject of dispute in a
suit betwcrn an ofUcer and the United SUtes.
Nor can such registers be evidence of the cor-
rectness of any class if) cation of the officers oi
departments into a general staff of the Army;
for though they are probably correct, being
prepared by persons whose professional duty it
is to be well informed upon the subject, and
who, from their familiarity with military sci-
ence and the general arrangement of armies,
are suopoaed to be expert interpreters of tJie
acts ol Congress for the organizatiun of our
Army, still, what officers are of the staff, or
general staff, depends upon acts of Congress,
which are to be e-tpountled by the courts, when
an officer claims a judicial determination of
his rights as to pay and emoluments, from his
having been arranged as heliinging to the staff.
However, we are nof now called on to ssy
what officers make up the grneral staff, or what
departments of the army may be assigned to it,
or are comprehended in it by the acts of Coa-
gress; nor is it necessary for the decision of
this case to deny that paymasters may not be
arranged as of the stan, under the Act of the
2d March, IS21. Considering the staff as a
central point of military operations, whence
should proceed all general orders for the Army,
the orders of detail, of instruction, of move-
ment, all general measures for subsisting,
'paying and clothing the Army, and ['flSS
as the administrative organ of all supplies for
the military service and land defense of the
country; it seems to us that paymasters, from
their duties and responailiitities, should be
classed with the general staff; and we presume
it has been done under the Act of the Zd
March, 1821, which, without being express
upon the point, has rendered indeterminate the
previous acts of Congress fixing with certainty
the officers composing the staff. Conceding,
then, for the purposes of this argument, that
paymasters are of the staff, does it strengthen
the claim of the defendant to the pay and
jor of cavalry I
SuTREMI COUBT OF TUB UltlTEP StAIIM.
menti allowed bj law to the officers of the gen-
•nl atalT of the rank of major. The third sec-
tion declares, "that regimeutal and battalion
pajmasterB bIibII receive the pay and emolu-
ment* of majors." without the additional words
of cavalry or infantry. The ninth section of the
aame act secures to the several officers of the
staff the privileges, pay and emoluments of the
Act of the 3d March, 1813. By the third see-
tion of that act, the assistant aiJjutants-generml,
assistant inspectors-general, deputy quarter
masten-general, and assistant topographical
engineers, are declared to have the brevet r»nk
ftnd the pay and emoluments of a major of
caTalrj. These are the officers of the staff,
upon an equality with whom, in regard to pay
•nd emoluments, it Is contended that paymas-
teiB are placed by the Act of the 24th April,
1816. The question depends entirely upon the
construction of the acts of Congress. Having
examined them, wa are of opinion that Con-
gress meant, by the words "the pay and emol-
uments of major," those of a major of In-
It was urged, however, tn the argument
against this conclusion, that Congress, in refer-
ring to the pay of major to fix that of paymas-
ters, when there are different amounts of pay
allowed to majors, according Ut the nature of
the service, had reference to those whose duties
are most analogous to that of paymasters, and
who belong to the same branch of service.
That paymasters belong to the staff of the
Army, and all officers of the staff who receive
the pav of major, are allowed cavalry pay.
That tnere was a strong analogy between dep-
u^-quartermaaters and paymasters, both be-
ing of the staff and disbursing officers, which
raised a fair and strong presumption that
AS4*] 'Congress Intended paymasters should
receive the same pay and emoluments as dep-
u^-quartennasters, oj:^ajors of the staff.
Upon these suggestions of analogy, we re-
mark, it will not be pretended, before the Act
of ISIS was passed, that any relation existed
* whether they were to be selected
from the line of the army, or from citizens not
of the Army; the pay was fixed in reference to
the duties and responsibilities of the appoint-
ment, without reference to any connection of
paymasters with the staff, and without regard
to any analogy of duty between paymasters
and any officer of the staff. In truth, the
only analogy existing lietween paymasters and
any officer of the staff. Is that to deputy-quar-
termasters, both being disbursing officers. The
want of general analogy, then, shows tbat
Congr^ could not have been influenced in fix-
ing the pay of paymasters by any such oonsidera-
tjon; and the particular analogy between tbem
and a single class of officers, In a single point,
!■ {nsnfflclent to sustain eucta a presumption.
BeaidM, the act relied upon to eatablisb the
-ali^ emtcnded Ua, moksa « difference
between paymasters and the officen of the ataff,
in r^ard to r*nk, enough of itself to account
tor the larger pay and emoluments allowed to
the latter. They have the brevet rank of ma-
jors of cavalry, which is not given to paymae-
ters, and to the latter the law allows no rank.
The language of the Act of 1613, referred to in
the ninth section of the Act of 1S16, is, that
the aaeistant adjutante-general, assistant in-
sneetors-general, deputy quartermasters -gener-
al, and topographical engineers, shall liave the
"brevet rank," and the pay and emoluments of
a major of cavalry. The section of the Act of
1816, fixing the pay of paymasters, omits the
words "brevet rank." As well might it be
contended that they should have It, aa that the
words "of cavalry" should be added to the
word "major." One would do no more vio-
lence to rules for the construction of statutes
than the other, but both would be in harmony
witi'i the principle applied in this instance, to
give the paymasters cavalry pay. Rank of it-
self, in every service, is a good ground lor a
distinction in pay; and though it lias not been
followed, or has rather been abandoned in ours,
in favor of the brevet rank of oITieers in the
line and staff, it should be presumed to apply
to persons having rank, and those *who [*SSS
have none. Cavalry pay, then, having been
claimed on the ground of equal grade in the
staff, the fact being otherwise, nothing is left
to sustain the claim.
But it wilt be asked, by what considerations
is it determined that the pay and emolumrnta
of pavmasters are those of a ma or of infantry)
We answer, first, that all the p'revious legisla-
tion of Congress, from the earliest period of the
government, and its practice, give a rule which
should be decisive of this question. The acta,
from 1792 to the 2d March, 1821 (the last upon
the subject), show that Congress, in determin-
ing at different times the pay of paymasters,
have always fixed it with reference to the pay
of an officer in the line, with such additional
compensation ad was deemed to be remunera-
tion for increased duty and responsibility,
whether the selection was to be made from si^
al terns of the army or from citizens, and when
the latter, where tnere was a deviation, it has
been by giving a fixed monthly compensation.
This uniformity of pracUce certainly outweighs
any presumption that can be raised from the
ninth section of the Act of 1B18, that there waa
to be a sudden change of it in favor of staff
pay; especially so, when the ninth section cab
only be received as providing (or a certain ofB
cer, ofBcialty designated In the Act of 1813.
and entirdy independent of the third section of
the Act of 1B16, which had already fixed the
pay of paymasters. It would be very difficult
to connect the two section, the third and ninth.
in any way, to bear upon rach other; and the
mistake In doing it has arisen from goir *
of the statute, and engrafting upon tlie
tlon of Congress the exterior consideration th>t
paymasters had been arranged under the gen-
eral staff.
Again, when the act speak of regimental
and oattalion paymasters, these laws must nec-
essarily refer to the existing composition of tbe
Army, whether it be made up of ail, or one, o(
Um different umi al defense ; and cannot,
rel«n I*.
IfM
CtUKK *. KownmLtM.
irtthout gnai vfotenec, be luppoied to meui
out of them not cooiprchended in th< extating
militaiy cstalilJAhnicnta of the eountiy. So,
>Ibo, when the Inw speaks of « mdjor, the term
it tofst naturnlly considered mm having been
n«eil in refi-rence to such ofllcere of that rank,
and of such regiments actually being of the
army, or to the ann; as it exists; and when it
ia used without regimental designation, Imoliea
a major of infantry; this arm of defense oav-
ing t>een made tlie main body of modern armies.
We think military men must so understand it;
hccauae, in this, as in all other eases where
distinct ports form the minor portion, the lar-
•9B*) Rer *oi main body ia understood without
partieuilir desigmition, and the minor rei^uires
it, to ascertain n'itli certainty what part is re-
ferred to OS spoken of. So that when the ninth
section of the Act of the 2d of March, 1S21, de-
clares that there shall be fourteen paymasters,
with the pay and emoluments of regimental
paymasters, and when to ascertain what the
pay and emoluments are, we have to resort to
the third section of the Act of IBIS, and there
£nd it to be those of a major, the law must
mean a regimental and not a stafT major, a ma-
jor of infantry. Certainty it should not he
tortured Co mean a major of one of the arms of
defense or kinds of regiment of which there is
none in th<; Army. When the Act of 1816 was
passed, cavalry did not form a part of the
Anny; consei[iieiit[y no such rank as major of
cavalry existed, by which the pa; of paymas-
ters could have been graduated. But it was
urged in argument that there was such a thing
aa the pay of a major of cavalry, subaisting in
lent contemplation. There wasi but for no
oUier purpose than as giving the standard of
p»y to certain staff oHicera. It is not probable
that Congress, when fixing the pay of paymas-
ters, referred to what only existed in contem-
Illation of law, in preference to wliat existed In
act, to guide its determination.
But another, and the only remaining consid-
eration to which we shall allude, oa decisive
ol tlie interpretation here ^iven to the third
aection of the Act of 1816, is the contempora-
Dcous exposition and practice under it, by the
accounting omcera of the treasury, and acted
upon by Congress, when Ave years afterwards
it re-organized the pay department of the
Army. The ninth section of the Act of the 2d
of March, 1621, to reduce and fix the military
peace establishment, declares that there shall
be one paymaster-general, with the present com-
pensation, and fourteen paymasters with the
pay, etc of regimental paymasters. This act,
in reference to the paymaster general, is posi-
tive in continuing the existing compensation;
and the term "regimental," applied Iw the pay-
master, is to be taken in the sense In wbii% it
ia need In the act fixing the peace estabiishment,
or to the kinds of regiment of which the army
vos to he composed, and as continuing the pay-
masters upon the footing they actually were,
and had been for five years, in regard to pay
and Hnolumcnta. Congress knew what these
were, and cannot be supposed to have Intended
to re-enact the law of IS16, with the construc-
tion of it here contended for, in opposition to
the practice of the Treuuir DeparUnuit under
H
Jndipnent
CONRAD K0WN8LAR.
I aired to Instruct tfc«
The Circuit Court were reqalred to Instru
Jurv uiwD points of Ib« crowIuB out of allef
of facts, of which Ibere was do eTldence or
The refusal ot tl
Ui strict of Columbia.
This
Dnnlap and Mr.
Key for the defendant.
The court, in their opinion, having decided
that none of the questions which were argued
were presented by the evidence in the Circuit
Court, the arguments of counsel on those qnea-
tions are omitted.
Mr. Justice Stoij delivered the opinion of
the court:
This is a writ ot error to the Circuit Court
of the District of Columbia for the County of
Washington.
Kownslar brought the original action in No-
Conrad Kownslar: Dear Sir, if you will moke
Jame* Miles of this city your agent, as you in-
timated to him, I will see your money paid in
due course of sales. Ha asks Sve per cent,
commission; and will take all intended for this
market. He wishes an answer. Your ol>edient
servant, Matthuw St. Clair Clarke. Washing-
ton, the 2Tth of September, 1S28." Kowaslar
received the letter, and sent paper accordingly
to Miles, between November, 1828, and Decem-
ber, 1829, amounting (as the declaration
avers) to the value of (8,306.75, part of which
paper vras afterwards returned ; and upon the
sales of the residue there remains due and un-
paid (as the declaration avers) to Kownslar,
the sum of 14,238.62 ■« after deducting commis-
sions; to recover which sum the action was
brought.
*At the trial, upon the general Issue, [*SS8
a verdict was found for the plaintiff, upon
which judgment was rendered in his favor, and
the present writ of error is brought to revise
that judgment. Two bills of exceptions weca
taken, the second only of which is now before
the court (or consideration, excepting only so
far as the evidence contained in the nrst is re-
ferred to In the later. It appears from these
bills of exception that, at the trial, the plain-
tifT offered in evidence the letter of guaranty,
and then the testimony of Milea, who proved
that he was a commission merchant in the city
of Washington for the sale (>( paper and other
articles of stationery ; that be received con-
signments of such articles from several persona,
who were not in any manner secured or guar-
anteed by any persons for their consignments;
and also further testified that after the said let-
ter was written, the plaintiff sent sundry pack-
ages of paper to him for sale; and that before
he sent the same, he informed Miles that he had
received the said letter from the defendant,
and should send it. On cross-examination, he
further proved a letter (dated November 4tl^
18X8) Moompanying the packages first sent,
S71
OSS
SupBEUK Coimi OF TSK United Statu.
and also certain articles of a^eement entered
into between Clarke and the witness (dated the
iBt of October, 182S ) . both of which papers are
in the record i and that, after the sa.id paper
was received from the plaintiff hj Miles, the
defendant (Clnrke) knew of it, and was then,
and afterwards, in the habit of inspecting the
books kept by tbe witness, in nhich the paper,
aa received by the witness from the plaintiff,
and the amies made thereof from time to time, as
the enme was received and sold, were entered.
He further testified that on the 28th of April,
1630, he terminated his business as such com-
mission merchant; made a general assignment
of all his stock, books, etc. to the defendant,
who took possegsion under the same of various
articles then in the store of Miles, but never
did take poBBCssion of, or exercise any control
over the paper so lying in his said store belong-
ing to the plaintiff, but the some was delivered
to, and received by the plaintiff. The assign-
ment was then introduced.
These are all the facts stated in the first bill
of exceptions. The second proceeded to state
that after the testimony so given, the plaintiff
proved, by Miles, that tbe usage and practice
of commission merchants in the city of Wash-
ington was to sell either on credit or cash the
articles consigned. But that as soon as the pro-
ceeds of sales are received by such commission
merchant, be at once becomes responsible to
tbe consignor for the proceeds, and is not en-
9S9»] titled to my "credit for the same. He
further gave in evidence the books of Miles,
and two certain drafts for $1,000 each, with
the indorsements and protests of the same.
Each of these drafts was dated at Mill Creek,
October aiat, 182!), drawn on Milea, and pay-
able to the order of Lewis Huff, Esq., cashier;
one in ten dnys after date, the other in thirty
days after sipht, and were each accepted by
Miles on the Gth of November of the same year.
The plaintiff further offered to prove by
Miles, and be testified, that when he accepted
these drafts he had no funds from the collec-
tion of sales of the plaintiff's paper, but ac-
cepted the same in i-xpectation of making such
eollectioni, which, however, he was not able to
make. The defendant then gave in evidence
certain letters of the plaintiff to Miles, dated
on tbe 13th of May, and the 17th of October,
lS2g. The first letter, after speaking of ^aper
sent, and of other paper of the plaintiff on
hand, etc., added, "you will please to send me
a check [or the amount you advised I should
draw on vou for at thirty days. By so doing
Tou will have eight to ten days after date till
it will ba presented for pay." The second, after
asking for information by the bearer, how Miles
comes on with the sale of his peper, etc., added.
*Wy draft, I presume, will he presented soon,
I hope you will not suffer it to he returned."
The plaintiff then read to the jury the account
between him and Miles, showing the amount
claimed in the suit.
The defendant's counsel then prayed the
court to instruct the jury as follows, that if
they shall believe from the said evidence that
according to tbe ordinary usage of the business
of commission merchants in the city of Wash-
ington, in which Miles was engaged and In
which be acted in receiving, selling and ac'
counting for tbe paper consigned to bim, no
ftTS
credit was allowed or given to such o
merchant, and that without the knowjedn
privity or oonsent of the said defendant, a»
plaintiff drew upon Miles for the sums of
money which he had received as the proceed! cd
said sales of his paper, so made by Miles, which
drafts were payable at distant days or periods,
that then such drafts, so drawn as aforesaid
and accepted by Miles, payable according t«
their tenor, amount to a credit given by the
plaintiff to Miles, and that such credit, ao
given, constitutes a new agreement and dis-
charges the defendant from hit liability on his
said letter of guaranty. The court refused to
give tbe Instruction as prayed, and to this re-
fusal the defendant excepted; 'and the [*lieO
propriety of this refusal constitutes the sole
point for our consideration.
We give no opinion upon the instruction, a*
matter of law, because we are of opinion that
there was no evidence whatever before the
jury which called upon tbe court to give It,
and that upon this account it was properly re-
fused. There was no proof before the jury
that Miles, at the time of the acceptance of the
drafts, had any money in his liands which he
had received as the proceeds of the sales of the
paper of the plaintiff. The drafts, being pay-
atite at future times, the mere acceptance of
them h^ Miles did not establish any such fact,
for it IB a known and ordinary course of busi-
ness for such acceptances to be made, not only
when tbe acceptor has funds in his hands, but
also when funds are expected to be received by
him before the maturity of tlie drafts, and.
indeed, often for the accommodation of the
drawers when the acceptor, being a commission
merchant, has the property on hand, out of the
sales of which he expects to reimburse himself
for the advance. The theory of the law, which
supposes the acceptor to have funds of the
drawer in his hands, is a theory mainly intend-
ed for the security of third persons, and leaves
the transaction to he judged uf between the
parties themselves, according to tbe ordinary
course of business between them. But with-
out resorting to these considerations, the fair
presumption would seem to be, in cases like
the present, that drafts drawn payable at future
periods were designed to reach funds not yet
received, hut to he received at the maturity of
the bills. The present case, however, does not
stand upon presumptions. Here is positive
proof from Miles (who seems to have been tbe
only witness in the case) that at the time he
accepted the bills be had no funds in bis hands,
but that he expected to make colWtions, which,
however, be did not make. And tbe written
documents in no shape shake his testiraony.
Indeed, a part of the very instruction, as
frnmed, seems founded upon the credibility ol
that testimony. So that we do not perceive
how, consistently with the rules of law, the ia-
stniction could he given ; as there was no evi-
dence before tbe jury conducing to prove the
facts on which it was founded.
The judgment is therefore adtrmed, with ^
per cent, damages and costs.
This cause came on to heard on the tran-
script of the record •from the Circuit {•••!
Court of the United States for the District of
Columbia, balden in and for the County of
I«M
The Uayob, etc., or Nkw Okixuis t. Thc Uhited Statxb.
WkBhington, wad wai argued by counsel; on
•OBsidermtion nhereof, it it adjudged and
4er«d b; this court that the jud^jment of the
Mid Circuit Court in thia cuuae be, and the
wme is hereby atfirmed, with costs and dumagea
at the r«te ol six per centum per anuum.
««*■] 'THE MAYOR, ALDERMEN and
INHABITAMIS OK NEW ORUiiNS,
Appellants,
THE UNITED STATEa
Titlt (a land iu New Orleans between front
bouses and river — dediualiou to public use —
Alluvial formations — isaue of grant not con-
elusive evidence of grantor's title.
Tba United States alJCEcd, br a pvtIlloB present-
ed M tbf District Court of the United Stslei lor
Uie District of Loulslsna, tbst br tbe Ii-eatr at
eeaalon oC tbe late ProrlnFc of Loulslina. the DqII-
cd Stales succeeded to all tbe antei^edect rlKbte at
rraoc* and SpaJo. se tbcj tbtn w<fre. lu aiitl over
the proTlncb the dominion and posseaiiloD thrreol,
Inclndlaf all lands wblch were not prlvale proper-
tr ; and ttist certain lota and vacaat lands lu tcont
ot tbe cit; oC New OrlesuL wlilch
serted passed to tbe United Btalei
bad, tnr an ardlDSnce of the city.
b* sold tor the use oC Ibe dt;. Tbe petition prated
that tbe c\tt of New OrleflDs Hboiild be "~
_i — I • "ing the same, or dolnj
iolned from „...
which shall 1
r tbe SI
ne, or doing aoj othei
rtghtrul domlDlon ol
r P<>B-
aeealon at It. The dtj of New Ork
KTound which lies between tbe line ot the fr
Eonaes of tbe city and the River Ulsnlsslppl : PI:
as having been lett by tbe King ot I'rance as guaj's
ot works erected by the Inhsbltanta at the expense
ot the cit; to advance the levee In front on tbe
river. Tbiti!. because by tbe isws ot Bpaln, in
fotcc when tbe BlluTtons were fnraied In front ol
tbe dtj, such formations belonged to the Inhabit.
ant* of the dtles, who mar dispose of the same as
the; maj tblok convenient, on their IcbtIuk what
1* ucceaaarir tor the public use. The Ulatclct
Conrt ot Louisiana ordered the perpetual lojunc-
UOD >a prared. and that decree was reverssd on
appeaf
dtlea and towns and ol
r to dedicate propert; tor public
a the public.
and ba*« no other IlinlCatlon than tbe v
"» eommonltv at large.
-elples n '■
J- - "■
l( tolldlngs had been erected on lands within the
rce dedicated tor public use. or grants ot part nr
sane have been made bv tlie power which ht <,
BDtliorItT to make, and bad made a dedication of
Ibe same to public nsc. the erection of tbe bul'd-
Inga and the making ot the grants wonld not be
conaldered ss disproving the dedlcetlan, and the
grants wonld not affect the vested rights of the
pabllc.
The qnesttoD Is well settled at eommoii law that
tbe person whose land Is bounded by a stream ot
water which changes Its course graduillj b7 sl-
hivlal tonnatlons, sball still hold the same bound-
aij Including the accumulated soil. No oUier rule
can be applied on just principles. Every proprie-
tor whose land Is thus hounded, Is subject to loaa
*- *•— — - -neauB which msy add to his territory ;
also without remedy for bis loaa In
cannot be held accountatile tor hla
rnls Is DO less Just when applied to
and aa be
rights.
Joslve evidence of s
tioTB. — Aa to dedication o( lands lui uuuhe
nmscs, see iwtsa to 8 L. ed. D. 8. 4fi3 ; 24 1. ed.
Blgbta of nnnlclpalltlet to «ilnTlal ftrinatlana,
see note to U LJt^ 30S.
t b ed.
In the power wblcb Issued It. On Its ttce tt ■■
conclusive, and *eanoot be eontroverted : ['CflS
but If tbe thing granted waa not In tbe grantor, a*
right passes to the grantee.
APPEAL from the District Court of the
United States for East l^uiBia.iia.
On the 3d day of March, 1825, the attorney
of the United States for the Eastern District ol
Louisiana filed a petition in tbe District Court,
stating that the mayor of the city of New
Orleans, in pursuance of att ordinance of the
city council tliereof to that effect, had adver-
tised for Bale in lots, the vacant land included
between UrauUne, Levee and Garrison streets;
and tiie public road in the city of New Orleans;
and also the vacant land included between the
custom -liouae. Levee aud Bienville atreeta, and
the public road in the same city.
That by the treaty of cession of the lata
Province of Louisiana to the United States,
they succeeded to all tbe antecedent rights of
France and Spain, aa they then were la and
over tbe province, the dominion and possession
thereof, including all lands which were not
private property; and that the dominion and
posacsaion of the vacant lands endeavored to be
sold by the city council had, ever since the dis-
covery and occupation of the province by
Prance, remained vested in the sovereign, and
had not, at any time prior to tbe date of the
treaty, been granted to the city of New Orleans,
"V\ berefore, inasmuch as the said attempt
of the said city council to sell tbe lands as pri-
vate property, is an invasion of Che rightful
dominion and possession of the United States in
tbe premises," the petition prays that the may-
or, aldermen and inhabitants of New Orleans
may he aummoncd to appear and answwer the
petition; and in the mean while that they may
be inhibited by injunction from proceeding
furtlier in tbe said attempt or from doing any
act to invade the rightful dominion and posses-
sion of the United States in the said land; and
that after due proceeding the injunction bs
made perpetual, and also lor all other suitable
and needful relief.
The district judge ordered an Injunction, ac-
cording to the prayer of the petition. In De-
cember, 1827, the corporstion of New Orleans
filed an answer to the petition of the United
States, which, after the usual reservatioiu, de-
nied all the materia] facts and allegations In
the petition, and positively denied that the do-
minion aud possession of tbe pretended vacant
land, which the respondents had offered to
sell, by an ordinance of tbe city council, "was,
or did (at the time 'of the treaty of [*S«4
cession to the United States) remain vested in
either the King of Spain or the sovereign of
France, either aa vacant land, or under any
other denomination, and that ths same passed
as such to the United States."
The answer prayed that the petition should
be dismissed and the injunction dissolved.
In December, 1829, the corporation of New
Orleans filed a supplemental answer to the pe-
tition ot the district attorney of the United
States, in which they ask leave to add the fal-
lowing pleas to those contained in their origi-
nal answer. They aaf that the inhabitants of
the city of New Orleans are the true and lawful
proprietors ol tbe property:
1. Became »U Uw apM* ol ground which ra-
S7«
Bonmta Coun ov the Unhbd StAxta.
tota between tbe front line of the Iioumb of the
eitf and the Biver MJuisaippi wim left by the
King of France under the name of "quAya,"
for the lue and benefit of the said inhabitante,
ma appear* bj authentic copie* of the original
plana of the foundation of the city.
2. Becauae if aince the foundation of the eitj
of New Orleans the apace became wider than
WBB neceaaary for public uae, and for the quaya
of the city, it was in consequence of an increaM
formed by alluvion in the greatest part of the
the inhabitants ot the city at their expense, to
the levee in front thereof, to advance it nearer
to the river than it was formerly.
3. Becauae, by the lawa ot Spain which were
Id force at the time the alluvions were formed
and aaid works were made, alluvJona formed
by rivers in front of cities belonged to the in-
habitants thereof, who aaj dispose ot the aame
as they think convenient, on their leaving what
Is necessary far the public uae.
Further, they say, the vacant lots claimed in
the petition are worth the sum of at least sixty
thousand dollars, ot the proper^ and djapoaal
of which the respondents cannot be deprived,
unless they were previously indemnified there-
for by the government of the United Statea.
The United States, in December, 1830, filed
a replication to these pleas, denying all the al-
Iq^tions contained in the answer, and the aup-
plemental answer to the petition.
The caae naa afterwards aubmitted to a jury,
but on the jury not being able to agree, they
were discharged by the court, with the consent
of the partiea. Atterwaida, the trial by jury
being waived by consent, the <!a8e was submit-
ted to the court upon statemente ot tacts pre-
SSB*] pared *by toe parties; and on the 18th
day of June, 1S31, the District Court made a
decree in favor of the United States, being of
"opinion that the defendants had not exhibited
■umcient evidence to support their title to the
premiaea in dispute," ana decreed that the in-
junction of the United Statea b« made per-
Tbe corporation of New Orlean* prosecuted
an appeal to this court
Tbs statement of facta exhibited, ma proved
by the United States, contained;
1. A reference to proceediuga before the
eonunisaioners of the United States, under the
A«ta of Congress relating to the adjusting ot
land claima in Louisiana, relative to certain
daima of lands within the property aaserted to
b«long to the oorporation of New Orleans,
which elaima had afterwarda been «onflnned
1^ Congress.
2. A grant for a part of the land to Prancis-
M Loitean. The particulari of the claims, re-
ferred to in No. I, and of the grant to Loitean,
are stated in the opinion of the court.
3. Evidence that on the ground the United
Statea, in 1819, erected a building for a custom-
house. In which the courts of the United
6tat«a are held; that previons to 1703, the
Spanish government had erected on part of the
ground two buildings, one used aa a oustom-
houM at the time oi the eeasion, the other aa a
tobacco warebouae; that a portion ot a brick
house still exiated on the lot granted to Fran-
cisco LoiteMj tbftt tha oorpontiui bad arcetcd
•74
ind, whkh an
Dart o
rented to individuals;
modation of the garrison of New Orleans were
placed on the ground by the French govern-
ment in 1767, which existed and were occupied
at ths time of the eeaaion.
4. An Act ot Congreaa of 1812, granting to
the eity ot New Orleana a lot of ground In the
cfty; an Act of 3d March, 1822, entiUed "As
Act anpplemental to an act entitled an act an-
thoridng the disposal ot certain lota of ground
In the elty of New Orleans, and town of Mo-
bile," which wa* allied to have been paaaed
at the instance ot the corporation of New Or-
I relative to
ot the oorporation vt New Orlea
part ot the ground.
6. An ordinance of Don Alexander CKeilly,
dated the 22d February, 1770. This decrae
designates the city properties "of Uie city of
'New Orleans," but does not include in ['eac
the aame the property in controveray.
7. The mayor, aldermen and inhabitanta de-
rive a large revenue from duties impoaod on
veasela and boats muored at the levee in front
of the city of New Orleans. It amounted,
during the year 1830, to $30,000. And a duty
has alwaya been collected by the municipal au-
thoritiea of New Orleans, on vessels moored at
the levee since the promulgation of the ordi-
nanee of O'Beilly, above referred to.
On the part of the corporation ot New Or-
leans, the following statement of facta, and
alao the documenta annexed to the same, wera
filed in the cauae;
1. From time immemorial, both before and
subaequently to the eeaaion of Louisiana to
Spain, there baa existed, tor the convenience
of commerce, both in the towns of 'France and
in thoae of the French colonies, situated on nav-
igable streams or on the sea-shore, a vacant
apace between the first row of buildings and
the water's edge, which vacant space is gener-
ally termed a "quay," and is destined tor the
reception ot goods and merchandise imported
or to be exported. These quays are of various
dimensions, regulated in seaports by coinmer'
cial operations and convenience, and in thooe
situated on rivers, both by the above consider-
ations and by that of the encroachmenta which
tne rivers may moke on their banks.
2. Nevertheleaa, the government or municipal
authoritiea of those placea frequently permit
buildings, intended tor purposes of public or
private convenience, auch aa market-houaea,
fountains, baths, eoBee>houaes, etc, etc., to be
erected on part of those quays.
3- Towns in the French coloniea have never
been incorporated, like those of the United
States; they are founded in virtue of order*
emanating from the government, or tutm the
minister ot the marine, and transmitted to tbe
govemora ot the colonies; and their adminis-
tration wa* confided to intendanta, who bod
authority to enact the neceaaaiy police rcgula-
4. The govemora of coloniea, on receiving
these inatrnctiona, issued their orders to the
chief engineer of the colony, or, in default o(
such ofileers, to « surveyor, to draft a plan ot
the projected town. This engineer, or survey-
PcMn to.
IBS8
Tn Mt-Ytm, BO., or Hkw Oiluiib v. Thx Unns Br^n
W, dikfted Um plan ud ilgDed tt, with men-
thia of the place and davi month and year,
when it naa cixnp]rt«d. This plan, thus si^rned
and dated, wai deliveTed over to the governor,
••I*] 'and lota and aquarea nere granted or
•old out to individuals, with reference to it.
5. The chief engineer was an oMcer ol the
n^al eorpa of engineer!, and performed the
duties both of miliUry and civil engineer.
6. For a number of jears before the Revo-
lution there has existed in France an office at-
tached to the Navy Department, in which all
maniucript plans and maps of the French col-
onies, or their citiefl, forts, fortifications, etc,
were deposited.
7. All the land on the banks of the Missis-
eippl, in Lower Louisiana, is alluvial. This
river is subject to annual and periodical risea,
ud unless its waters were confined within the
ebannd bv strong embankments, they would
overflow all the adjoining land, until they fell
and retired within the bS of the river; that ia
to aaf , during about five or six mouths io each
Tear. But for these dykes or "levees" as they
are here called, the construction and mainte-
nance of which coat the inhabitants, who are,
and have always been, liable to the perform-
ance ol this du^, a great deal of money and
labor, the whole country bordering on this
Sri of the Mississippi would be uninbabit«ble
ring the spring and summer.
8. During this rise the Misaiasippl Is contin-
najly efTecting changes in its banlu; It under-
mines than in the bends and carrying off the
earth which it detaches, deposits it on the
points; BO that in many parts of these bends,
as soon as the waters fall and return to their
aecustomed bed, the land on the margin being
deprived of support, give* waf, falta into the
stream, dtsappean, aiul is carried down by the
eiirrent until it is united to the bank at some
lower part of the river.
V. For these reasons, it is an almost univer-
sal usage among persons dwelling on the banks
of the river to build their Iwiues at « sufficient
distance from its margin to allow Spaee for tile
construction of new levees, and to furnish
new public roads, without being compelled to
remove their houses and other building when-
erer the leveea and roads ar« carried off bj the
10. Under the French and Spanish govern-
menta, the vacant space between the first row
of buildings and the margin of the Hlsalaalppl
always existed ; it never was divided Into
squares and lots. The streets ot the eitf have
never been laid off, or continued from said row
of houses to the river. It was only in ISIS that
the eorporation caused the said streets to be
prolonged as far as the levee.
11. Under the Spanish govormnsnt there
was on this vacant space near the river, a
wooden market- house, eons true ted by the
••8*] 'cabildo (council), between StAnneand
Domalne streets. This building was demolished
by the corporation, and the present narket-
honse constructed on the same spot-
There waa also on this square, and adjoining
to the levee, between Duraaine and SL Philip
■Ireeta, a wooden building, belonging to Mr.
Amaod Magnon, who had erected it in virtue
of ■ ■ .— .--.. .n _._,
the cabildo, built near the ame spot and towct
down tban his bouse, between Uie river and
the lev*e, and on an alluvion then recently
Forrppd, a large shed, or scalTold, which tie
used as a workshop, he being a ship-builder.
There were also on this part of the bank, at
the toot of the levee, in front of the public
square, several small wooden cabins, which the
cabildo had permitted individuals to erect there
afUr the fire of 17Q8, who were subject to the
payment of a small annual rent, for the benefit
of indigent orphan children. These huts were
destroyed after the cession ot Louisiana to the
Unitea States, and at the Instance of the cor-
poration.
There were also on this vacant ground, un-
der the Spanish government, lat, a wooden
building, between Custom-house and Bienville
streets, which was used as a custom-house; 2d,
a large storehouse, also of wood, near the said
custom-house, in which the tobacco (of which
the government had a monoply) waa stored.
This storehouse did not exlit at the time the
United States took possession of the country.
The custom-house, which waa in a very bad
condition, was abandoned at that time, and the
United States cuatom-houae was established at
the time of the cession in a small building situ-
ated on a portion of the ground occupied by
the old royal storehouses, between Dumaine'
and St. Philip streets.
12. Before the cession of this country to tbo
United States, this vacant space, throughout
the whole extent of the front of the city, waa
used bir the publio. It was, at that time, cov-
ered with gross and weeds, and the horses and
cattle of citizens were sent to pasture upon It.
Since the eeseioa, and since the increase ot
the commercial busineas of the city, the vege-
tation has disappeared, but the inhabitants
of the city have, particularly since the ceaaion,
continued to use the greater portion of this
apace for the transportation, lading, and un-
lading of goods, and as a place of deposit for
materials, etc The streets running at right
angles to the river were prolonged by the cor-
poration as far as the levee, and this pro-
longation was executed and kept up at their
expense. In 181B they made, and have
'siuoe kept in repair, at their own ex- [*S<9
pense, a new street, or high road, on that lar0»
open space at the foot of the levee, and through
out its whole extent.
13. Under the Spanish government the in-
habitants possessed the commons all around
the city, a part of which they appropriated to
various uses. Qovernor Carondelet, at the ro-
queat of the cabildo, caused a plan of It to be
prepared by the surveyor-general, Laveau Tru-
deau, which wss not finished until the year
1798; a copj of which plan is annexed to the
proceicdings in this cause.
14. The lavee in front of the city has always
been made and kept in repair by the inhab-
itanU of New Orleans. In 1806, this levee
waa generally, throughout its whole extent,
three and a half feet high, from fifteen to
twen^ feet broad at top, and widening towards
the base.
16. Before the year 181S, this levee was un-
dermined in many places by the river, and
threatened to (all in. In order to prevent thia
aceident, wUeb would have eompelled th»
»Tft
Sdfbsmk Coubt or tbb United Staivb.
eorporntion to matn a new one nearer the
houses, and consequently on the vacant space,
they caused, at their own expense, carpenter's
work to a lar^ amount to be done in front of
the levee, by means of which it was put in the
strong and solid state in which it now Is. The
point at which this work was most required,
and where most of it was performed, was be-
tween St. LouiB and Toulouse atreeta, where
the soil on which the levee rested was so much
undermined by the current that the water
sprung up through it in large quantities, anil
toe owners of the bouses fn that quarter feared
their foundations would give way. The works
above mentioned arrested the progress of a
dani^r which was so justly apprehended.
16. Since the taking possession of Louisiana
fay the United SUtes, an alluvion has been and
is still continually forming in the River Misiis
aippi in front of the city of New Orleans; par-
ticularly towards the upper end and lower ex
tremlties of the city. These alluvial (omiations
are exhibited, together with the streets made
in IB18, in the plans draughted by Joseph
Pelie, city surveyor, and which are annexed
to the record.
17. In consequence of works ordered bv and
performed at the expense of the cor.pcirnlinn.
the levee in front of the city it now, in tlii' ii <
per part of the city, one hundred and fml.-
feet wide, in the centre of the city from si\ty
■ix to eighty feet wide. These aupnpn'iitinri*
have been made without encroaching on the
•7 0*] vacant space •between the streit
opened in 1B18 and the water's e^ige on the
alluvial soil since formed on the outside of the
levee.
18. Parts of this vacant space might be dis-
posed of to individuals without at all Interfer-
ing with the public use of it, or with the load-
ing or unloading of goods, the levee, as it now
is, being amply suAcient for alt these pur-
19. There are two copies of plans of the city
annexed to the record, the one made In 1724
by Mr. De Panger, and signed by him, the
other made in 1828 by Mr. Nicholas Broutin,
oti both of which the vacant space, the sub-
itet of the present controversy, is designated
'/ the nam« of quay. The former of these
|tlans la not authenticated; the latter Is au
then ti cat ed, according to all the forms re-
quired in France for the authentication of
copies of acts or instrumenta in foreign coun-
tries. These two copies of plans are taken
from copies deposited among the archives of
the city since the end of the year 1819, and
whieh Moreau Lislet, Esq., counselor at law
for the corporation, had caused to be obtained
from the office of plans and maps of the French
OolonlEs attached to the department of the
navy, and of French colonies. Nicholas Bron-
tin was the engineer of the King of France In
Louisiana.
20. Authentic copies of various instruments,
1^ which lots situated in front of the city were
G anted or sold, under the French government,
fore the cession to Spain, and in which they
are designated aa aituated on the quay, or
fronting the quay.
81. A plan which is found tn the work of
Per6 Charlevoix, the Jesuit, antitled, 'Tlisto-
•j of New France, with the historical jourwil
«Tt
of a voyage undertaken faj order tf the Ktng.
in North America," published at Paris In the
year 1724, in three volumes, in quarto, vol. 2,
p. 433} in which, also, the vacant space, tlie
subject of the present controversy, is denom-
inated a quay.
22. The laws of France and of its colonic*
jtrevailed in Louisiana from the first settlement
of the colony until the 2Gtb of November of
the year 1769, when Alexander O'Reilly, Cap-
tain-General, invested with full powers for that
purpose by the King of Spain, abolished them,
and Buti<itituted in their stead the laws of
ISpain, which were in force at the time thii mit
was instituted.
23. Three works, entitled "Histoire da St.
Dominique, par Moreau de St. Mary," In two
volumes, in quarto: "Histoire de la Nouvella
France, par le Pera Charlevoix," three vlomea,
in quarto ; and "History of Louiaiana, by
Francois Xavler Martin," in two "vol- [••Ti
umes, in octavo, are admitted to be works of
accuracy and authenticity, on the sobjecta of
wliich they treat, and may be referred to ■■
(■vidence in this cause.
The rase was argued by Mr. Webster and by
Mr. Livingston for the appellants, and by Mr.
Butler, Attorney-General, for the United States.
A printed argiimi^nt, prepared by the counsel
for the appellants in New Orleans, was alao
laid before the court.
The appellants insisted;
1. Upon the original plans of the city, aa
ina<le by the King of France at ita foundation
in the years 1T24 and 1T28, from which it »p
pears that the space of ground in queation, to
its whole extend waa designated as quays or
wharves.
In this fact of e<
extant having any »
of the city noi
of authority, s
and the absenc
Ig any aemblanes
that of Charlevoix's History,
of any document that givea ■
contrary, or mat does not give this destina-
3. The uninterrupted possession and enjoy-
ment of the land as common by the inhabitanta
of the city, from the years 1724 and 1728 up to
the commencement of this suit.
4. That all the lots and squares of Uie city
have been sold or granted in reference to the
plans before mentioned. This fact, admitted
in clear and unqualifled terms, might be con-
sidered as decisive of the case,
6. The universal understanding of the high-
est oflicers of the French government in ue
colony, and the notariea and persons engaged
in the purchase and transfer of property, as
exhibited in the various acts and doeumenla
found in the record, and the repM^ted acts of
the cabildo or city council, exercising owner-
ship and jurisdiction over the land.
e. That the streets of the eitv were nev«r
continued through this space to the river until
the year 181S, when it was done by the cor-
poration. It continued entirely vacant for
public use as conimona of the city.
Mr, Webster, for the appellants;
The United States claim in this ease the oc-
clusive right over the property described in Um
proceedings, by virtue o[ their sovereignty,
'and as succ^ding to the sovereign [*ATt
rights of the kings of Spain and of France over
lulsiana before the treatj ol
Tbk Uatob, etc., or New Orleans «. The Uhird Statu.
tn
OMikia. Thp} claim ttiii as unfp'anlvd or
vacftnt land, and b« such that it passed to the
United &tate> b; the tr^alj. nhilc the; do
not deo7 that it may be subject to certaiTi uses
by the inhabitantd of the city of New Orleans,
Utey do deny that these ii^es have given any
right of property in the soil, or aulhoriied any
IntcrfeniDce with it, so as to change or affect
It in uny manner.
This is opifosed by tbo appellants. They as- '
■art this property to be exclusively theirs, snd
tb«t it UBS the property of the corporatioa
«f New Orleans before the United Stati-s ac-
quired the territory of New Orleans. That it
wa< theirs hy its having been a part of the city
of New Orleans from the first establishment of
tha same by dedication, when the place
first laid out by those who were proprietoi
th« whole soil; by possession ever since,
that if it had become enlarged by the addi
of alluvion deposits, the additions, under the
laws of France and of Spain, before the ces-
sion, and by the law of the United Slates since
th« treaty, are the property of the corpora-
Uon.
The position of New Orleans and the peculiar
elwracter of the Biver Mi^is>ippi, make such
additions from alluvion deposits frrquent and
•Ktcnsive. The sinking of a frame oi lumber,
at the eipenae of the inhabilants of New
Orleans at a partkutar place in the river op-
posite to the city for tin protection of the
groiiDd, )ias contributed to toe rapid and ex-
toneive enlargement of the open space in front
of the city. This enlargement has placed the
leree, uaed for the purposes of trade, farther in
advance of the city, and has left the ground
now in controversy in such a sjlustion as not
to be required for the use* of commerce. The
corporation of New Orlesns, therefore, pro-
posed to sell and dispoee of it, to be occupied
and improved by those who may desire to pur-
eiiaae it. So fully ii it manifested that for
commercial or any other public purposes large
portions of the property are no longer re-
Juired, that it has, since the commencement of
lis suit, been :io!d by agreement between the
United States and the corporation, and the pro-
eecds of the sale, nearly one milliou of dollars,
may belong to the successful party in this
appeal.
But the question to be settled in the case be-
for« the court, on the proceedings in the Dis-
trict Court of Louisiana, is not whether the
eorporalion of New Orleans has a right to use
the property. It is the question whether, by
tho treaty of cession, the United States «c-
• 71*] <|uired *a right to the same, as having
faail transferred to them the sovereign rights of
Spain, and afterwards of France over the terri-
tory. 7'his is the right asserted by the peti-
Ucner, sunt put in Iscue by the answers and plens.
The United States contend that if the right
of dominion did remain in the sovereigns of
Rpain and France during the time the country
<raa held by them, the property liaving been
especially dedicated to public uses, by the ces-
ma the same became vested in the sovereignty
of the United States, subject to those uses; and
ths nae, mot destroying or affecting the right
of tb* United States to the land, pansed, by the
set of Congress incorporating the city of New
Orleans, to Um corporatioa.
t !•. oA.
The statement of facts on the part of tks
corporation makes a complete case for then.
The land claimed by the United Slates appears
to have betn designated for the use of the city
evpr since it was founded. The plans referred
to show that there was always an open space
fronting on the river, and the uses of it were
only such as wers consistent with the publie
use. A custom-house, a parade ground for the
military, barracks for the soldiers, were erect-
ed upon it. These were permitted; but they
did not destroy the title of the citizens to it,
nor did such uses convert it into public domain.
The casements thus permitted might have been
revoked. It is stated that a market-bouse,
erreeted of wood, was taken down by the cor-
poration and replaced by one of brick.
The city of New Orleans was bound to sup-
port the exterior levee, and this has always
been done at the expense of the inhabitants.
This expense has always been considerable.
The United States have never been called nfoa
All the facts of the case show that the situa-
tion of the streets of New Orleans, the general
Fonfoimity of the plan to tlie plans of other
French cities, and the principles of the civil law
which apply In such coses, have full force in
the present question.
In the leth division of the statement of facts,
it appears that in 1724 and 1728 plans of the
city were made, and on both of which the
ground now claimed by the United States is
designated as quays. One of these plana (that
of 1728) has been recently obtaioed from
France. It shows such a dedication to public
uses as brings the case within all the princi-
ples established by this court in the Cincin-
nati case, and in tJie Pittsburgh case, reported
in a Pclers's Rep. The binding force of such
plans is shown in 1 Starkie on Evidence, IBS.
•The ownership of property may be [••74
nd the use private. The decision of
-t in the case of The Dartmouth Col-
lege established this. If it should be decided
that the United States might have a custom-
house on this ground, or a parade ground,
this will not sanction a claim to the property,
or a right to sell it for the benefit of the Unit-
ed States. Have the United States a right
to divert the property from the use for which
it was dedicated, to enrich their treasury T
It appears that the dedication of land to
public uses is an estoppel of all subsequent
claim to it, as well by the civil law as by the
common law of England. French Pandects, art.
15, eg; 3 Martin's Rep. Z<36, 303, 304i 11
Martin's Rep. 660.
The sovereignty of Spain over this property
existed before the cession, for the sole purpose
of enforring the uses to which it was appropri-
ated. This right, and the obtigationa imposed
upon it, became vested in the State of Luuisi-
jia, and did not continue in the United Stages
fter the State was formed. Acquiesced in by
he United States under the treaty in the Brst
natance, it necessarily afterwards passed to
the State. The United States cannot now en-
Fon^e this use, aad could not take the quay
and diipose of it) and unless this can be done,
there is nothing to support this action. Ths
preservation and the enforcement of the use
must be by the State government. By the
n «•
tt*
Su^EHE Conn of thb Ufitbi STina,
UM
■sot of ConsreiH incorporating the cfty of New
'Orleans, all the UM at the property becsme
'vested in the city.
The petition presented to the District Court
'does not recognise any trust. It asserts a full
:and sovereign right to the whole land, and if
■this court shall confirm the decree of the in-
'ferior court, the United States will bold it di«-
'CDsrged from all trusts.
Mr. BuUer, Attorney -General, tor the TJQit«d
^Btatea.
The nature and object of the suit have been
'misapprehended by the opening counsel. It is
■not a suit in equity. The suit was commenced
>by petition and not by bill; process of sub-
ipffina was not prayed, nor were any of the
;proceedings in toe cause on the equity side of
I the court.
The object of the suit was to prevent the dty
'Corporation from selling the premises in ques-
tion, and not, as the counsel supposed, to re-
' cover possession. The United States were
themselTes in possession, and the action
brought by them {which was in many respects
analogous to an injunction bill) is well known
'67ft*] to the civil law as a 'prohibitory inter-
dict, the nature, and purpose of which are well
'explained in Livinsaton's answer to Mr. Jeffer-
son in the case of The New Orleans Batture.
B Hall's Am. Law Joum. 270, 271, 272, 273.
The learned counsel for the city is also mia-
'taken in supposing that in order to maintain
:the decree appealed from, the United States
must show that they have an absolute title to
the lands in dispute, freed from any servitude
'Or public use; such a title as to authorite the
government to sell these lands, and to apply
^Ihe proceeds at pleasure. The particular na-
ture of their title was not stated in the petition.
The averments were no doubt brosd enough to
cover the absolute ownership of the premises,
and in one of the aspects in which he should
present the case, he would endeavor to show
that the United States were the absolute own-
ers; but it did not necessarily require such k
title to maintain the petition. On the con-
tmry, the averments contained in it would be
suiliciently satisfied, and the plaintiffs would
be entitled to the relief sought, if it were
shown cither, let. That the United States held
the absolute ownership, or, 2d. That they held
the title to the soil though charged with a
servitude for the benefit of the inhabitants of
the city, or of the public generally, or 3d.
That the United States were entitled to a
servitude In the lands, the title to the soil
being in the city corporation: because in either
of these three cases the attempt of the city to
di.ipose of the lands in absolute ownership to
individuals, without the consent of the United
States, waa an encroachment on their rights.
The proliibitary interdict wsa an appropriate
remedy for cither of these three cases, and if
it should appear that either had been made
out, then the injunction by which the city was
prohibited from selling these lands as private
property for its own exclusive benefit, was
properly made perpetual.
The decree of the court below does not spec-
the judee. If it can be shown that the United
States have any euch title in the s^l, or to
the I
<rf the premises, ai to make H In-
equitable for the city to proceed in its attsmst
to sell, then the decree must be affirmed. U
this court should be of opinion that only ■
SialiSed title is shown by the United Sutat,
Doutd say so in its decree of aiBrmauce, aad
thus protect the rights of all other parties. Th*
real question in the case, therefore, is, have tht
United States such right in the soil or to the
use of the premises, as to entitle 'them 1*111
to a decree prohibiting the absolute sale by tht
city corporation r
In support of the affirmative of this questioB,
it is contended;
1. Thst the corporation of New Orleans b»s
no title whatever to the soil, nor to the use of
the vacant lands in dispute, but that under the
Treaty of Cession of IBOS, the United SUt«s
becajDOi' and yet are absolutely entitled to th*
Although it Is sufficient for the plaintiffs, la
order to retain their injunction and decree, to
show that they have a qualified interest in the
soil or in the use; yet it is obvious that to en-
title the city corporation to proceed with ths
Proposed sales, it must show a complete title
-ee from any publio use. In this view of tbe
case the question of title becomes a material
one, and ft is desirable, on many accounta, that
It should be decided in the present suit.
That the corporstion has no title to the soil
nor to the use of the premises in question, wm
expressly decided in 1833 by the Supreme
Court of the State of Louisiana, in the ease of
D'Armas and Cucullu T. The Idayor, etc, of
New Orleans; being the same case subscqusnt-
ly brought by writ of error before this court
and dismissed for want of juviadiction. S Pe-
ters, 224. The plaintiffs, as grantees of the
heirs of one Bertrand, claimed a lot included
within the original limits of the quay, granted
by letters patent to those heirs, pursuant to
the act of Congress confirming their claim,
which was founded on the entry and posseasioo
of Bertrand in 1788, under a permiivsion given
hy the Spanish ^vemor. The corporation of
New Orleans having asserted a claim to the lot
as part of the quay, Cucullu and D'Armas i>-
stituted a suit in one of the district courts of
the State of lAuisieina for the purpose of eitab-
lishing their title under the United States, snd
the District Court decreed in their favor, which
decree was affirmed, on appeal, by the SupieiM
Court. The corporation contended, first, thst
the whole vacant space was their property, and
second, that it had been irrevocably destined to
public purposes when the town was established,
and thereby forever rendered inalienable even
by tbe sovereign. On the Isst point tbe judgci
differed, Chief Jubtice Martin holding in the af-
firmative, but being overruled by the other
judges. On tbe question of title in the corpo-
ration the judges were unanimous. Judge INir-
ter examined the point at large, and Jndn
Matthews concurred with him; and thon^
Chief Justice Martin dissented from the judg-
ment, he 'did not controvert the reason- [*4IT
ing of Judge Porter In this respect. It Is shows
by Judgf Porter that, according to the FttaA
law, a dty or other community can only ac-
quire a title to land, or to the use of land, bj
letters patent from the king. He also show*
tiaA according to the Spanish law, cities and
ret«r« t*
ISM
Thk Uatob, e
., or Kkv OmtxAva v. The Umm Stati
gtkar teBununltiM ooold not acquire title to the
•oil except bj grant from tlis cniwn, though
thej might acquire title to the public ui
land by ^aat, purchaee or prescription.
The opinions of Judges Poner and Matthewa,
!■ this case, notice all the prominent facta now
nlied on by the city, and M»wer altnOBt every
•oggestion In the opening argument. Jude
Porter ehowB that the case Ib diBtinguiahabl
from that of the City of Cincinaati t. White, fl
PeterB, 431, by the circumstance that the land*
were not set apart for p'iblic use by A private
indiTidual, but by the Bovereign; and more ea-
pecially because the questions were to be de-
cided, not by the common taw, but by the laws
of France and Spain, which were in force prior
to the cesBioD.
It had been affirmed in the opening argu-
Bieot that the United States had no greater oi
other power over the quays than they had over
the Btreeta, and the counsel for the United
States bad been challenged to show a distinc-
tion between the two cases. This call had
been answered by Judge Porter in the follow-
ing wordd: "The streets of a town are uq
doabt what is denominated in our law public
placea, and they are protected from change and
alienation by all the rules which apply '
things of this description. But the power
the grantor oyer them, even if he should be the
king, is, in my opinion, much more limited than
that he posBesses over other things of the i
Icfnd. 80 long bb the town remains unincorporat-
ed, and he retains the power of regulating its po-
lice and government by laws and ordinances, he
m«y modify, abridge or enlarge the streets; but
be cannot deprive the inhabitanta of the usi
them, and for an obvious reason. Streets
Indispensable to the enjoyment of urban pi
arty. Without them a town could scarcely
■aid to exist; the inhabitants of it would be aa
Kisoners in their own houses. It may, there-
re, be readily admitted that the sovereign
|iower of no country could deprive the own
and occupants of lots and houses of things
dispensable to the use and enjoyment of the
property sold or conceded, without violating
the plainest dictates of justice and the general
principles of law apptirable to all other
• IS*] 'cases of the same kind. But its ina-
bltity to do so would not proceed from their
being destined to public purposes, but because,
witlwnt them, the property granted could not
be enjoyed. Just as, on the same principle, an
individual who granted a portion of his land,
which could not be reached but by passing over
other portions of It, would be considered as
having conceded to the grantee the right of
way over the part retained. It is a well-settled
principle that whenever an Individual or the
law giveth anything, there Is Impliedly given
at the same time whatsoever Is necessary to
Ha mjorment. The limitation, therefore, con<
tended lor on the power of the sovereign over
•treeta, may be well conceded to the whole ex-
tent pressed In argument, without at all affect-
ing aim authority, or his rights over vacant
povnd not proved to be necessary to the use of
frlrate property,"
The same opinion shows also, that even ad-
ndtting that the vacant space in question had
raaJIy been dedicated to public use by the
King of Prance, that such dedication was not
liTeToeable, aov tka land rendered Inallenablei
, but, on the contrary, the dedication might ba
revoked end the land alienated by the sover-
;eign.
Judge Porter slso arrivea at the same ooncln-
sion, as to the want of title in the city, on
other ground*. He shows that, unless words
' can make or change things, no part of the
ground left between the city and the river can
be regarded aa a quay, save that which was
prepared for the reception and discharge of vea-
aets, by the creation of the levee or artificial
embankment. And admitting that this space
was really a quay, he then argues that only
so much of It as is actually necessary to the
loading and unloading of vessels, is properly to
be regarded as public.
Thus Far Judge Porter bad chiefly considered
the case on the law of France. He then exam-
ines the law of Spain, which brings him to a
result equally fatsJ to the claims of the city.
Judge Uatthews, who concurred in this opin-
ion, supported HOme of the points above ra-
fcrred to by additional arguments and authori-
ties. This decision, though not obligatory on
this court, is entitled to the greatest respect.
The case turned on the French and Spanish
laws, with which this court Is not particularly
conversant The State judges were familiar
with those systems, and, as they must, no
doubt, have been disposed to Incline on all
doubtful questions in favor of the city, their
decision may he regarded as of the highest au-
thority. It should also be mentioned that the
seme decision in effect, *t!iougfa the ["519
cases were different in their circumstances, had
been previously made by the Supreme Court of
Louisiana in the cases of the grants to Ment<
linger and Liotaud, whose claims before tha
commissioners are also among the proofs in this
cause. 3 Martin, 2S6; Chabot v. Blanc, G Mar-
tin.
Independently of the decisions of the local
tribunals, it Is submitted that on the facts
stated in the record it is apparent that the city
has no title. No law of France or Spain, nor
any grant from either, nor any documentary
evidence of any kind, is introduced or appealed
to by the city for the purpose of showing that
the ground In controversy had ever been ex-
pressly granted to the city. The right of proi^
erty depends on the state of the title In Oc-
tober, 1800, when the country vas retroceded
by Spain to France; and in the absence of any
written declaration of the right to this prop-
erty, the presumption of law is that It belonged
at that time to the sovereign, as a part of tha
national domain. The circumstances appealed
to by the other side for the purpose of overcom-
ing this presumption and showing title In the
city, must be referred to the laws by which the
territory waa governed prior to 1600; that Is to
say, the lows of France, from the settlement of
the county until 1769, when the Spanish lawa
were put in force, and the tatter from that
The counsel for the dty. In the pamphlet
handed to the court aa a part of the opening,
whilst they admitted that the city bad never
received a [^nt from the French crown, yet
(intended that by the designation of the prem-
ieef on the plans of the city as a quay, and by
the possession and enjoyment set forth In the
case, the land was as completely separated froH
the domain, and as clearly vested in tbe in-
ScTKKvi CmisT or the Unms SrAfi
bftbitanti of the city, ai H there bad been a
formal grant from the French crown. In an-
r to tbia, the Attorney -General contended
facta relied on by the city, was that the vacant
■pace in question had been dedicated to public
uses — they did not even begin to show a title
in the corporation. By the French law, i
eziated at the time the city waa laid out, and
from that time until the cesBion to Spain, quays
and other public places in cities belonged to the
crown as a part of the public domain. Do-
mat'a Public Lawa, book 1, tit. 6, eec. 1, art. 7;
Encyc. Math. Jurisprudence, art, Domaine.
Ah to the extracts from the Partidas and
6 SO*] other Spanish laws, they 'only ahi
that cities might, by the law of Spain, hold
commons and other public places; they do not
prove that cities, under that law, could hold the
absolute titles in those places, nor any title
whatever in the soil; and, above all, tbey prove
nothing as to this particular case.
The law as to mcreftses of land formed by
alluvion, was, no doubt, correctly stated by
the opening counsel; but it could not help the
city in the present case. The increase by allu-
Tion was on the outer side of the levee, which
had been greatly widened by It; whereaa the
ground now in controversy is wholly on the in-
ner side. Besides, the increase by alluvion be-
longs to the owners of the soil to which it ia
added; and as the city corporation has been
shown not to be the owners of the soil, they
have DO title to the increase, not even to the
nae of it. Livingston, in 5 Hall's Law Journal,
p. 120, IfiO, 172, les. Nor ia there any Imrd-
ahip in this, because the levee has been wdcnetl
of France and Spain.
Title by prescription is also set up. But by
the Fiench law there can be no title by pre-
scription against the crown in any case unli-sa
it be ioimcmorial. Alard v. Lohau. 3 Martin,
New fiTies, 203. And such things as are des-
tined to common or public use, such as banks
of rivers, etc., cannot be acquired by prescrip'
tion. Domat's Civil Law, book 3, tit, 7, sec. 6,
art. 2. And though, by the Spanish law, cities
and towns may acquire by prescription a title
to the use of lands for commons and other pub-
lie places, they cannot acquire an absolute title
in that way. But there is no such long con-
tinued and uninterrupted possession here as is
required bv the Spanish law to constitute a
title b) pVescription. For the rules of the
Spanish law on this subject, see Institutes of
the laws of Spain, quoted in White's Compila-
tion, p. 70.
The opening counsel had contended that If
(he right of dominion, the title, did really re-
main in the sovereigns of France and Spain
whilst they owned the country, yet that the ti-
tle was held by them subject to pubtJe uses;
and that, by the cen^ion to the United Stales,
and by the incorporation of the city of New
Orleans by the territorial legislature under the
aulbority of the United States, the title anl
dominion, subject to such public use, became
vested in the city corporation. The answrr to
this arg'iment will be found in the act oflu-
corporation Itself. It gave the corporation a
all the eatates, whether real or personal, whkk
theretoForo belonged to the city of New Or
leans, or were held for its use by the cabildfl^
under the Spanish government or the munid-
pality, after the transfer of the province to
France, and which had not been legally alien-
ated, or lost or barred; but it gave to the cor-
poration no new title to the land in questloo.
The territorial Legislature, indeed, had no pow-
er to grant such a title. The Act of the 26th
March, 1804, which organized the territorial
government, expressly declared that the gov-
ernor and lecislativfl council should have no
power over the primary disposal of the aoO.
The act of incorporation, therefore, merely con-
flrmed to the new corporation the old title, and
we are, therefore, necessarily turned over to
the former question.
The Attorney -General next contended that
the absolute title to the premises in dispute hid
been vested in the United Statea by the treaty
of cession of 1S03. This was the conclusion of
a majority of the court in the case of De Armai
and Cucullu v. The City of New Orleans, hefoft
cited; and there are in the present record aonu
evidences of title not presented in that case.
and various arguments Applicable to this point,
not noticed in the opinions of JudRPs Porler
and Matthews, may also be suggested. Title
to land in Louisiana, as well aa in other part*
of this continent, was founded on discovery.
,Tohnson &, Cratiam v. M'Tntosh, 8 Wheat. GM.
The whole soil, subject only U> the right of
Indian occupancy, was treated as a part of ths
national dnmnin. In September, 1712, Lonis
XIV. granted to Anthony Crorat the commerca
of Louisiana for fifteen years, with the mines,
etc., in perpetuity. 1 Martin's History of
Louisiana, 178; White's Compilstion, 159.
This grant extrnded the edicts and ordinances
of the realm, and the customs of Paris, to
Louisiana. In August, 1717, Crozat surrendered
3 the
the 8
and government of Louisiana
ivere granted to the Western Company for
twenty-five yesr-i. The lands of the territory
were also granted them in perpetuity. 1 Mar-
tin, ins, 139. The site of New Orleans was
selected in 171S by Bienville, who had beea
commissioned as governor by the Western
Company. 1 Martin, 201, 244. Tlie designation
of the quay and the general plan of the city
was made under the authority of the Western
Company. But though that company held the
title in all these lands at that time, this does
not alter the case. They repre^enlei! the sov-
ereign not only in their capacity to mabl
grants of land, hut also in the regulation of
'ommeree. In designating the quay, they act-
■d in the *latter character as well as in ['9S»
he former; and the case must therefore stand
in precisely the same ground as If the city
lad b^-en laid out bv (he crown <it a time whei
the whole title wns in it. The Western Com-
panv surrendered their grant to the king ia
Jiinuary, 1732 ( 1 Mnrtin, 2S7), and the Frmd
crown w.ifl thus re-invcstrd with its orii^nal
litlc, and all l.inds not previously granted wers
-e-im'Ird to tlie public domain, and so contin-
ii-^d until ITiiti. when the secret treaty made in
1703. by which Louisiana was ceded to Spain,
was promultrated, and the territory delirerej
'0 the Spanish authorities. 1 STarlin. 329; S
Martin, ft. The premises in qucstiin hivin|
Feteri lt>
l^K Uatob, rrc, of Nxw Obleaks t. I^a tJRitB) STAn&
never b^en granted to the city, and being a
part of the public domain at the time of this
treaty, pas«d by it to the rroivn of Spain, by
which it waj held a^ B part of the domain be-
longing to that crown, until 1803, when the
trcfttr of retrocession made at St, Ildefonso on
the Ut Octolter, ISOO, by which Spain ceded
LouiliKna to the French republic, was carried
into effect. B Martin, 182, The title to these
premises being in the King of Spain, and not in
ths city of New Orleans, at the time of the exe-
cution of the Treaty of St. Ildefonso, it passed
to the sovereign of Prance as a part of the na-
tional domain; and under that treaty the
n^nch republic acquired, to use the language of
their
lable title
• domain, and to the possession of the said
territory." The title thus acquired by France,
together with the sovereignty of the country,
passed by the Treaty of Cession of 1803, to the
United States. The second article of this
treaty declare! (hat in the cession are included
"the adjacent islands t>clonging to Louisianu,
all pul>lic lots and squares, vacant lands, and all
public buildings, fortifications, barracks and
other edirtceE, which are not private property."
This enumeration was probably unnecessary,
but seems to have been inserted from greater
caution, and as if with a view to this very ques-
tion. It is evident from the language of this
article that public loti and squares in cities
wei-e not regarded as the property of the cities,
but as the property of the crown; and as there
were no such public lots and squares within
the territory of Louisiana, except in the cities
of New Orleans and Natchez, public places in
those cities murit have been specially intended
by the framers of the article. The vacant space
now in controversy was a public lot or square
within the meaning of the treaty, and as It
has been decided bj the highest court of the
State of Louisiana not to be. the property of
the city, it necessarily passed to the United
States.
• 83*] *It was contended in the opening, b'
the learned counsel for the city, that even atf
inittinK that the sovereigns of France am
S|i>in bad the title to, and the control of these
B-omiaes, and that the same passed to the
atted States by the treaty, it did not neces-
sarily follow that the United States yet retain
•och title and control; and it was argued that
on the creation of the State of Louisiana, that
State became invested with all the title and
control of the former sovereigns. This argu-
ment was attempted to be supported by the
third article of the treaty of cession, and tha
met admitting Louisiana into the Union; and It
was said that if such was not the case, the ia-
habitants of the ceded territory would not poa-
■esa all the rights and advantages of citizens of
other States, nor the State be placed on an
equal footing with the other States. But the
third article of the treaty relates only to the
ri^ts which are to be enjoyed by individuslii;
and the Act of Congress of the Beth of Feb-
ruary, 1811, authorizing the formation of a
State goveroment, required as a condition that
the people of the proposed State should forever
discfaim all right or title to the waste or unap-
propriated lands within the territory, and that
the Miniu should be and remain at the sole and
entire disposition of the United States. This
condition waa acknowledged io the State eon-
• I<. ed.
stitution, and reltemted in the Act of the 9lh
of April, 1B12, by which the State was admit-
ted into the Union.
The ownership of the premis':s by the crowns
of France and Spain as a part of the pubHt
domain, and the consequent title of the United
Slates, are supported by many acts of owner-
ship, and by frequent recognitions of the city
authorities, the most itnporlant of which are
enumerated in the agreed stiitenient of the
facts Jiroved, and of evidence offered by the
plaintitls. It was said by the opening counsel
that these were not evidences of title, but only
evidences of tlip exercise of a claim of titlt^
and of acquiescence hy the city authoritije.
That remark was a mere solecism; for what is
evidence of the exercise of ownerHhip, espe-
cially when acquiesced in by the adverse party,
but evidence of titleT Proofs of this sort are
the very highest evidence of title, and they
therefore deserve the particular attention of
the court. In the present case, the acts of
ownership on the part of the crown, and of ac-
quiescence on the part of the city authorities,
commence from a very early date.
Among the proofs produced by the corpora-
tion, arc the papers relating to fourteen sales,
and other documents, which wi>re introduced
to prove that the houses in the front row of tlie
city were 'described as bounded In [*S81
front by the quay, and al?a to show that the
city lots extended no farther. Among these
safes there are several of lots on the quay not
bounded by the quay, but, as would aeem from
the descriptions, actually situated on it, and
forming part tliereof. The grant to Bioutin
is for a lot "on the wharf," to be held by hira
and his heirs and assigns as his own property,
"subject to the services which may be im-
posed by his majesty by reason of hia domain,"
and on certain conditions to be performed by
him, "under the pennlty of tho said tot being
reunited to his majcstr's domain."
I Barracks were erected on the premises by the
(French government before the year 1757, and
j the troops were frequently exercised thereon,
' The commercial use of the quay was also un-
der the authority and for the benefit of the
crown, or those who represented it, as contra-
distinguished from the city. From 1780 to 1803
there are various acts of ownership on the
part of the Spanish crown, most of which also
involve a recoil tion by the city authorities
of the title of the crown. The barracks erected
by the French government, and the use of the
S remises as a puraile ground, were continued,
n the 22d of February, 1770, Governor O'Reil-
ly, acting in the name and with the authority
of the king, granted to the city, among other
things, a tonnage duty to be paid by vessels
and boats coming to the city, to be appropriated
to the reparation of the levee. Several im-
perfect grants, and two complete titles were
also mode by t)ie Spanish governor, as the
representative of the crown, between 17S8 and
1803, of portions of the quay; whiuh grants,
after the cession, were confirmed by acts of
Congress. [The Attorney -General here re-
viewed the cases of Magnon, ChrssS, Bertrand,
Urtubuise, Mentzinger, and Liotaud; and laid
gieat stress on the grants by the Baron da
Carondelct to the t«o latter, and on the al-
legations in their grants that the loti granted
were part of the royal lands, etc. Aa to MM-
Stl
dcmnn Omnr or the UiriTBt States.
issa
Bon'a CKM, be Insiated that the opinion of tho
Attome7-Genenil mereljr (poke of the proposed
pant BB a. thing that might be dlsagreckble to
the city council, but not ai an act that would
violate their ri|i;hta,] In three of these cases
(those of Mentzin^r, Bertrand and Liotaud)
the title thug derived from the United States
was held valid hj the Supreme Court of Loui»-
lana. Prior to 17Q3, the Spanish goTernment
erected a custom-house and a tobacco ware-
houH on the premises; the former of which
existed at the period of the cession to the Unit-
ed Stales, and has been ainee kept up bj them.
6S5*} 'The use thus made by the govern-
ments of France and Spain, was all that the
nature of the subject and the circumstances of
the times required or admitted; and the facta
that aome small buildings were erected by the
city authorities during this period, and that the
inhabitants of the city sometimes used it aa
a common, are not inconsistent with the title
and ownership of the crown. There is no in-
•lance, from the laying out of the city to tho
piesent da^, until the attempt which led to the
present suit, of an; pretense on the part of the
city authorities that they were capable of
rjiting these lands; and until the late caszs
the Slate courts, they never alleged that the
crowns of tVanch and Spain before the cession,
and the United States since, had not the power
to make such graiits.
The acts of the pertiea after 1769 show be-
jond controversy that in the judgment of all
the Spanish authorities, the land in question
belonged to the crown, and not to the citj'.
And even were it proved (which is not admit-
ted) that according to the French law the
ground between the lots appropriated as private
property, and the water, was all called quay,
and was the property of the city authorities;
jet it the government of Spain, after the coun-
try passed under that jurisdiction deprived the
dty of this property and held and used it as
the property of the Spanish Crown, this coui-t
will not now revise the decision of the Span-
ish tribunals, and inquire wlietlier the title to
this ground was justly or un ustly taken from
tho city authorities and vceted in the crown.
But the^ will recognize and support the title
as it existed and was recognised by the proper
tribunals at the time of the cession to the
United States. And as it is not pretended that
any change in the title took place between the
times of the cession to France, and the transfer
by France to the United States, the rights of
the United States and of the corporation must
be tested by the state of the title, as under-
stood and maintained by the Spanish authori-
ties at the time the; ceded the country to
France. For if the property originally be-
longed to the corporation, or municipal authori-
ties, and was unjustly wrested from them, and
converted to the use of the Spnntsh government
aa public property, the courts of the United
States will not reviae and reverse decisions
which the despotic character of tlie Spanish
government authorized and sanctioned. Tlioae
deciaiona ma; have been made in direct viola-
tion of the principles which regulate and pru-
tect private property according to our institu-
tions, but they are, nevertheless, binding on the
partiee affected by them.
•B«*] ■Since the ceaaion ta the United
BM
states and the incorporation of the dtjr, th«
former haa claimed, with the acquiescence «(
th^ latter, the full ownership of these premises.
In IBOQ the corporation presented, under the
Act of the 2d of March. 1806, to the registm
and commissioner of the eastern land district
of the territory of Orleans, a claim to certain
lands in the vicinity of the city, alleged to
have been granted at the time the city was eat-
tablished to the inhabitants of the cit;, to be
used as a common forever, and prayed for their
confirmation. This claim seems to have t>ceil
understood by all parties as embracing the
land now in controversy, as welt as other la.iid.
The board rejected the claim as to certain landa
occupied for fortifications, and also as to kll
"lots and vacant parts of lund betwepQ the
said fortifications and the city, and within ai-iid
in front of the city, between iier-.e Street and
the river." This decision was acquiesced in At
the time, and if the premisca in question hud
been as clearly embraced in the petition as they
arc in the decree of the commissioners, the de
cision would have been conclusive. It may biT
said that the premises now in dispute were not
embraced in those proceedings; and if Ihia Im
so, the fact furnishes strung proof that at the
time the claim was made, the city autlioritiea
did not suppose the; had any title to tlie«e
lands, Hfld they then claimed an; such title,
they would, no doubt, have prefrrred a claiia
for the confinnation thereof, under the Act of
CongreE^s of the 2d of March, IBOj.
lu 1S12 the city council passed a resolutioo
directing an application to be msde to Con-
gress for the grant of a lot on the quay, to be
used for the erection of a fire puinp; in which
reWutian they expressly admitted that the vk-
cant apace between the river and the front line
of houses could never be sold or rented to pri-
vate individuals, or disposed of ixcept for ob-
jects of public utility; and the whole resolu-
tion and the applicatlini made to Congress, pro-
iie^'l upon tlie admission thnt tb i government
of the United States was aione oompetent to
make a grant of any portion ot these prem
piirsiisnt to this application. Congress, by
the Act of 3d April, ISli (4 Biuren & Dunne,
400), granlctl to the corporation of (he city of
Net/ Orleans the use and posses:iion of a lot b«-
twecn l-evee Street and the high road, with a
proviso that if the same should not be occupied
for the purposes indicated within three yeiara,
or should thereafter cease to be so occupied for
thn term of three years, the right and claim of
thr> United States should remain unimpaired.
The Act of the 20th April, 181S (vol. 0, p. 343).
"authorizing the disposal 'of certain |*SST
lotfl of public grounii in the city of New Or-
n of Mobile," i
e Act of 30lb
poral-ion, and both contain similar
reco{;ni'ttons of the title of the United States.
Thi. Act of 28th February, 1823 (vol. 7, p. 120),
in ivlation to the lot on which the navy storo*
liouse is situoted. and which is thereby granted
to the corporation, admits of the lilca reowrk.
The Act 01 the 2lBt April, 1800 (vol. 4, p. 81),
granting to the corporation of the eitj ot
Nalchei the right of the United State* to kll
the land lying between the front atrest aitd the
The Uatob, tnxL, or Nnr OujcAita t. Thi Uhitb) Statis.
WMluippi, on candftian thtt the pramlMi
■kauld neither he cultivated nor occupied by
buildings, but th&t it ihould be planted witb
trees and prpserved ta a coniiDon, may bIbo ba
referred to ui evidence of the general under-
■tuiding tiiat the title in vacant placet of tbia
•ort liad, by the Treaty of Ceasion, been vested
in the United States.
It is also matter of public hiatory, of which
Um court wil] take judicial notice, that during
the pendency of the present writ of nrror, the
oorporation of New Orleans has petitioned Con-
gress to grant to it the very lands now in con-
troversy, and that the argument of the cause
was delayed for one or two termi for the ex-
pres* purpose of enabling the corporation to
present this application, and to obtain a de-
cision thereon.
In aecordance with these admissions, has
been the actual conduct of the partlM
slncf the cession to the United States. In 1S10,
th« United States erected on the quay a build-
ing which is yet occupied by them as a custom-
house and court-house, and they also caused
the same and the adjacent grounds to tie in-
cioM?d with a fence; and if they have not had
the exclusive use of the remainder of the prem-
ises in controversy, neither has there been any
nich u»e on the part of the corporation. Under
these circumstances the possession follows the
irg:>1 title, and was therefore in the United
States at the commencement of the suit, aa al-
leged in their petition.
II. If the corporation of New Orleans has
■ny legal interest in the premises, it Is not such
an interest as can authorize the absolute sale
of said premises in lots to individuals, because
tbn interest of the city is, at most, a mere
servitude for Die benefit of the inhabitants of
the city, or of tlie public generally, whilst the
title to the snil is vested in the United States.
In di!^uBaiag the first point, it hod been
ihriwn that the corporation of New Orleans llad
no title to the soil; and an the raoit liberal con-
• S8*} atruetion *of the facts, and with every
diaposition which might be felt to maintain
an.l extend their interests, it would seem to be
inpo^sible to go further than the opinion of
Chief Justice Martin, who merely contended
thtt the quay had been irrevocably dedicated to
public use for the benefit of the inhaliitants of
tba city and the public at large, and that the
property was therefore pot hors du commerce.
Indeed, the greater part of the opening argu-
nrnl had been directed to this point; and if
nolliing more than this has been established,
then it ti plain that the decree must be af-
flrmcd. Suppose the lands to have been dedi-
cated to public use, and the dty corporation
to have the legal title to such use, yet the fee
diarged with this public use must have re-
mained in the crowns of France and Spain, and
from them must have passed to the United
States, who. as the present owners of the soil,
have a right to enjcnn the dty corporation
from procMding to sell for its own exclusive
benefit. Supposine the city corporation to have
the legal title in the servitude; It is plain that
this does not authorize it to sell the whole
estate, appropriating the proceeds to its own
nae. and that, too, without the consent of the
ownfTB of the fee. On the contrary, according
to the rules both of the dvll and common law.
if the property oeaaea to be used for the pur-
pose to which it has been dedicated; If the
servitude Is abandoned or extinguished, the
whole estate reverts to the owner of the soil,
whose title then becomes absolute. In auch
cose, the original owner, or those who have
succeeded to his rights, will hold the land freed
from the incumbrance of the servitude.
III. If the corporation has any title to the
soil, then the same is charged with a servitude
held by the United States for thdr own use,
and for the use of the public generally.
If upon any ground it should be held that the
title to the soil has passed to the city corpora-
tion, then, as it is admitted and contended b^
the counsel for the dty that Ute lands were
originally designed for public use as a quay,
the question will arise, by whom is this servi-
tude held! According to the law of France (as
already shown), all public places, including
quays, are held by the crown for the use of the
public. This title passed to the Spanish crown,
and was retained by it until retroceded to tbe
French republic. By the Treaty oi Cession of
1803 this servitude passed to tna UniUd States,
and until they grant it to the State or to the
city they must continue to hold it, provided
they have a capacity to do ao under the Con-
Btilution of tbe United States. That they had
such a capacity during the 'existence ['DBS
of the territorial government cannot admit of
doubt; and they must now have the same ca-
pacity in this respect, in regard to Louisiana,
which they possess in regard to the other
States, Under the powers to lay and collect
imposts and to regulate commerce, they may
uniJc-ubtedly acquire and hold wharves, store-
houses, etc. And in a great commercial city
lilce New Orleans, what constitutional difficulty
is there to prevent them from holding, for the
purpose of facilitating the collection of imposts
and (he regulation of commerce, the use of a
tract like the quay! It might not be necessary
or expedient in ordinary cases for the United
States to acquire a servitude of this sort in so
large a tract, but their power to hold such a
title cannot depend on the extent of the tract
Besides, although the territories adjacent to the
Mississippi River have tieen formed into States
the United States yet have an Interest in>tlM
navigation of the Mississippi; and have so late-
ly as 1B24 (Laws U. B. vol. 7, p. 329, 331),graDt-
eJ lands to the parishes of Point Coupee and
West Baton Rouge, for the purpose of licepin;
up levees on the bank of that river. It is there-
fore submitted that the servitude in these lands
be well held by the United States for the
benefit of the ci(i»ns of the Ignited States,
id of all others who may wish to use the
.me for the purposes of a quay.
Mr. Livingston, for the appellants.
It has been truly said by the Attomey-Oea-
eral Ihet this is a suit of importance. Whether
we consider the value of property actually de-
pending on its dedsion, or of that which majr
be involved in the principles which the deci-
may establish. But to tbe appellants, its
importniiL-e is far greater than any eonsidera'
I of ^cuniary value could give to it. De-
I ill fnvor of the UniieJ States, the decree
gives thi-iii not only the land contended for in
this suit, but all tut lying In front of the dtj.
It cuts off from all access to navigation the seo-
ttUPKElII COUBT OF TIU UMRID SU.TKS.
t83C
end eommerclkl city of tke Unloti} ihata up
their streets; rendern th^ir wharves uaeles3',
•ad, worse than an invailing enemy, invests
tbem with a bJocliade that their valor can uevei
raise. Well, therefore, might the Attornej-
General call it an important causa. But, hap-
pily, importance and ditlicultv are not synony-
mous. These fatal results oi a decree against
tho appellants may, 1 think, be avoided ay a
Kference to two cases lately deoided in thii
court, those of Cincinnsti, and Pittsburg, to
which the attention of the court has been al-
ready drawn.
atO*] *The facts are essentially the aame in
eharacter, or where they differ, they are strong-
•r in our favor. Tlie law by which they are to
be governed, is the same; call it civil or com-
mon law, it is founded on the principles of
Justice wh:ch never vary; and the only dilTer-
ence between the two systems Is that the rules
which have been established by the decisions of
this court were, under the laws which govern
this case, matter of statutory enactment.
Objections have been raised to the form of
Uh action, which it wilt be necessary to
before we examine the merita. It has been said
that the counsel who opened this case erred ii
calling it a suit in chancery for the fallowing
reasona: it is not so entitled; no process of sub-
P<Ena was issued, and a jury was once impan-
eled to try the issue of title. This court will
not regard the want of form, where It la not es-
sential to the great ends of justice. If the
words, therefore, "in equity," arc not placed at
the head of the record, but the whole scope of
the petition is to obtain an equitable relief,
the oiniesion will not be fatal; those words can
be no more than a direction to the clerk on
what docket to place the cause. The want of m
subpcena is supplied by a summons, and the ap-
pearance cures all defects of mesne process. As
little can the objection avail th.it a jury had
once been summoned; for feigned if^aues to try
facts are among the ordinary proceedings of
courts of eqiiily.
But it is objected that here the relief prayed
for is not equitable, but one given by the c(
nion law of the country; that the perpetual
junction prayed for by the bill and given by
th^ court below. Is nothing more than the inter-
dict of the civil law; and autliorities are taken
from a pamphlet published some years aj;o to
prove the position : and that the author of that
pamphlet, now the counsel for the appelli
proved, as it is said, conclusively, that s i
commenced in the same form with this, having
the same object, and in which the same relief
was obtained, was not a suit in chancery. All
this is true. But an essential circumstance is
forgotten in the statement. The suit in qupa-
tion, Gravier v. The Corporation of New Or-
leans, was brnuRht in the territorial court of
Louisiana under the first grade of government,
a court proceeding according to forms csscii
tially those of the civil law; governed in its
decisions by the rules of that law; and, conse-
quently, knowing no distinction either in it^
decrees, or its modes of procedure, between
equity and common law. The object of Crav-
ler's suit was to be quieted in his possession,
• nlief which, If the suit had be«n in a eban-
(.»i-j iTi-y i-ourL, would have been "given by
*«4
perpetual injunction; and if acMrding to tke
lawa which governed the territory, by the
equivalent remedy of a perpetual interdict. Tba
same remedy was given by the territorial court
that would have been given by a court •!
equity, had the distinction been known to tha
laws of the country; hut it was not known,
therefore the proceeding in that case waa not
a chancery proceeding, but one in the ordinary
execution of the powers of the court. Here, oa
the contrary, the suit is brought in a court hav-
ing chancsry jurisdiction; the relief sought la
an equitable relief, and it will not surely ba re-
quired that authorities should l>e cited to prova
that whatever may be the laws of the State in
which a court of the United Statu is situated,
that court has equity jurisdiction : and al-
though the courts of such State might give ra-
lief, according to the forms of the common law
in cases strictly of equity jurisdiction, yet those
of the United States are bound to claaa them
according to the nature of the remedy sought
for.
The reference to the pamphlet from which
the argument has been drawn, the flatteriii|
term* in which the Attorney -General has t»ees
pleased to speak of it, and the possibility that,
ID looLing at it, the court may recur to other
parts than those immediately relating to the
3ucstion before them, oblige me to ask their in-
uigence for a single observation; irrelevant, it
is true, to the case, but which I am happy to
find an opporunity of making. That pamphlet
was written under circumstances in which the
author tliuught, and atili thinks, he had suffered
grievous wrongs; wronn which he thought,
and still thinks, justifled the warmth of Uji-
guBge in which some part of his argumenta
are couched, but wiiich his respect for the pub-
lic and private character of his opponent al-
ways obliged him to regret that he had been
forced to use. He is happy, however, to aay
that at a subsequent period, the friendly in-
tercourse with which, prior to that breach, ha
had been honored, was renewed; that the of-
fended party forgot the in urv ; and that tlw
other performed the more didicult task (if the
maxim of a celebrated French Buihor is true)
of forgiving the man upon whom he had in-
nicted it. The court, I hope, will excuse thi*
personal digression; hut I could not avoid using
this occasion of making known that 1 have
been spared the lasting regret of redacting that
.lefTerson had descended to tba grave with a
feeling of ill will towards me.
The opening counsel has also been suppoacd
I linve fallen into another error, when he atat-
ed that the object of the suit was the
'recovery of the absolute ownership of [*8t9
the property for the United States. Tliat he
has not erred, ii evident from the words uf the
pet'tion; they claim the dominion and poasee-
sion, the union of which amounts to ahsaluu
ownership.
It is true, aa has been argued, that there are
sea in whien the court may modify the de-
ee according to the circumstances which are
proved; hut tliis can only be when the proof it
conformity with the case alleged; when it Is
t, it destroys the force of the nils that the
nlle.^nta and probata must agree; and at a coa-
scquiince, that the decree must eonfom te
both. Here it luppo^d that the court maj
Tbk Hayob no., or ^ew Oklbaiis t. Tbb Uinm STAm.
tither d«cm the property fn full ilominioB to
the United States, or that the? may eatahlish th*
property in thwn, with u. servitude to the city,
or give thf property to tlie C'tv with a scrvitiiiie
to the United States; bat neither of these kind
of titles are put in issue, neither of them are
alleKed in the pleadings; and, u ^ill be shown,
neither are proved liy the evidence. They can-
not recover a servitude by asking for the feej
and if the land in the hands of the eorporation
Is subject to the servitude of a common use in
fsTor of all the inhabitants of the United
Slates, the government of the United States
cannot «nforee that aee by a suit in their name.
The demandants, then, in this, an in all other
esses, must prove their easR. and prove It aa
stated. They allege dominion and poasessiun,
both must be proved if they can have the re-
lief prayed for, vix., a perpetual injunction to
quiet possession. But if they do not show ac-
tual possession, how can thej be quieted in itT
If they do not show property, there can b« no
equitj In their demand; (or ehanesry will
never interpose in favor of an illegal possession:
actual possession has not been attempted to be
shown, and an actual adverse possesBion for
more than one hundred years Is expressly ad-
mitted.
No position can be clearer than that for this
defect of proof alone the bill must be dis-
missed; and I might add, if it were neeesBiiry,
that equity will not interfere to quiet a posses-
ion until after the title has been settled. But
we do not desire a decree on this point which
would not put an end to the controversy. We
are prepared to show conclusively that the
United States have no title to the land or to a
KTvitiidr on it, and that the whole title is vest-
ad in the defendants, subject to uses, for the
observance of which they are amenable to the
lawa, to the courts, and to the authorities of
the State ezeliisiTelj.
«»S*] ■]. The title of the United States.
Thla rests on the second article of the treaty
wding Louisiana.
That gives to them the dominion of the prov-
ince of Louisiana, and enumerates as included
In the grant, public squares, vacant lands, etc.,
not private property. The general transfer
would have been sufficient to invest the United
States with the sovereignty of the country.
Bnt to show Uat no right to the property eon-
Uined within the limits of the cession was re-
tainad, the enumeration of vacant lands, puh-
Ue squares, etc., is made. Now
htion the srantoT cannot be supposed to ^'
— than he had; therefore if the pTemis<
Included In the description of public
mora than he had; therefore
Included In the descrip
es, can it be supposed that he intended
eonTey, or could convey to the United States
tlntt which they claim; not only the dominion
(vUeh supposing It to be the sovereignty only
and which no one in his senses would deny),
but «lao possession, and property in that which
bad been dedicated to public nsef The term
'^blie aquare" by its very name proves that
ft ia a plaoa of that deacription, not a domain
mbject to be disposed of by the sovereign. But
ihat there might be no room for doubt, no con-
tiwlietlon between this part of the treaty and
th«t whIeA secured the inhabitants in their
riglila and property, the restriction is added
tb«t that only was «imveyed wUd was not
The terms of the treaty, then, nve bo tttla
to the premises, and to succeed, ihe plalnttSs
muat prove that Ciipy were rncant lands; bnt
the<re tvmis iire well understood, and by deol-
sions of this court have been adjudged not to
mean property in a town; and by the admil-
clon in this case, the property in question is aa-
knowled>;ed to bsve been in the u^e and oeen-
fiation of the inhabitants of the dty ever slaM
t« foundation.
FaDing in the attempt to bring the OWs
within the bounds of the treaty, the United
Slates have recourse to a decision which it is
thought secures it to b« within tta spirit. TH*
decision of the Supreme Court of Louisiana (s
relied on as decisive, if not binding as autliur-
i\y. coiiciuiiive »a nuthority, and convineinR M
ailment. It will be examined in all theos
toints of view with the respect due to the
!amin^ of the judges who pronounced It,
which IS acknowledged to be great; but at the
same time, with the freedom that duty to my
clients requires.
It is not contended that we are eoncluded by
this deciuon. It wiu not made between the
same parties, and although for parcel of
'the lands now in dispute, was not [*69-l
given on the same evidence, and these dreum-
Btances derogate much from It, considered only
as a precedent. Thore are others which, when
properly considered, weaken its force even 4s
argument.
This court has frequently expressed Its re-
apect for Slate decisions, and Its disinclination
to oppose them; but as their reasons are un-
derstood, they will give them eCTect under the
following eircumstnnces:
I. Where disturbing them would unsettle ti-
tles bona Sde acquired.
Here do such elTect would be produced; the
few claims on this property having undergone
legal investigation, and being settled by deci-
sions that do not admit of rev4>rs!il.
II. The second requisite is that the State de-
cisions have been uniform. In this the case of
The United States is remarkably defeotivc;
Several decisions have taken place in the Su-
preme Court of the State prior to that of De-
Armas; in all of which, as I shall show, opin-
ions have been given directly at variance with
those established in that case. The first of
these is The Corporation v. Gravier, 11 Mar-
tin's Rep. B2G, of which these were the circum-
stances: Gravier had laid out his plantation
Into ft suburb, and made a plan on which he
had Uid out a si^unre, on which he attempted
afterwards to build; he was opposed by the
corporation, and the court decided that the
designation on the plan was a luffieient dedi-
eatioo to public use to prevent any exclusive
appropriation being made of it by the former
proprietors.
The next is found in 3 Martin, 303.
In that also we have the authority of
Martin (one of the judges) for the fact that
the judges fully rec«gni7j>d the doctrine that
places dedicated to public uae conid not b«
disposed oF l)y the crown; and that If the cor-
poration had then produced the plan of the
city which is in evidence here, the judgment
would have been dilferent; and that if a grant
had been made by the crown, it would hove
been declared void. See llnrtin's opinion, and
the printed case. Mayor, etc v. De Armas, 40.
SUPBEMX COI'KT or THE UKITB> STAIBL
la tbe esM of Chabot •. BImic. 6 Martin, the
MUM uaeition arose, and the aiiTiip inliniation
KirsQ by the eourt— lint if a plan of thli had
been produced showing the locus in quo to have
been dedicated to public use, the grant of it by
the king would have been declared vuid.
These two eases were decided before the cor-
pontion had discovered the maps, of which
•Dthenticated eopiei are now produced. In
both the court formed their judgment in the
ttn*] abtence of this proof; *m both tbe;
deny the right of the crown to diepoM of the
property, if the dedication could have been
proved bjr the production of the plan; In both
the premiaes were part of the quayi now in dla-
pute: therefore, in both these cases, a* w«1l as
In the one Arst cited (Gravier v. The Corpora-
tion), the principle involved In this case is fully
•stabliBhedi and no decision of a contrary na-
ture, before that of De Annaa, having been
E reduced, the State authoritiea, so far from
sing uniformly against us, are three to one
in our favor; and all these three appear to
bav« been the unanimous opinion of tlie court;
wherosB, this is decided by two judges against
the opinion of one.
De Armas's case, then, stands alone; the di-
elsion must l>e established or fall by the com-
parative strength or weakness of the argU'
ments; and to support it, we have them fortu-
nately at full lenjtth. Thp court will compare
those of the dissenting judge (Martin) with
those of the two judges forming a majority of
the court.
So much reliance is placed on this case that
it must be closely examined. Thai part whicli
investigates the validity of the conlirmation
made by the United States does not apply here,
and need not be examined. The presiding
judge, as to the principal point, the property in
the corporation, refers to the argument of his
associates, with whom he agrees, and therefore
touches very lightly upon it. He, however,
takes for granted a fact that Is disproved by
the admissians in this case, viz., that the
greater part of the space denominated a quay
on the plan had never been used as such. p. 60. Hu
then enters into an investigation of the true
meaning of the word "quay," which he con-
cludes miut be an artificial work; and as the
Bpftce between the houses and tlie river was
natural soil, it could not come within that de-
scription. In another part of my argument I
will show that this philological inquiry is quite
useless in tbis case, and that tbe learned judge
has fallen into an error, which shows that it is
so. yor, he says, "perhaps it may be required
that some effect should be given to the word
'quay,' inserted on the plan. This may lie
done by allowing it in reference to that part
of the space on which it is found; which was a
quay, according to the meaning of the word, aS
generally received, 1. e., the levee which existed
OB the bank of the river, and the shore between
the exterior of the levee and the water." Now,
if the place on which the word is written in all
^ plans is to be considered as the quay, then
all the definitions which require that it should
l>e an artiScial work are incorrect; for a glance
at the plans will show that wherever it ia
• ••*] written, it is on the vacant space tM-
tween the artificial levee and the houses.
Another ground on which tbe learned pre-
siding judge tMts Ua opinion liu, I eoufeia to
my no little mrprise, been adopted by tke At-
tomey-Gener«l. It la that the t'nited States,
because they have the right to establish ports
of entry and regulate commeroe. Iiave that of
regulating quaye as on appendage to tbe ports,
and take upon them the police of wharves in all
the States of the Union. The arxument of the
Attorney -Qeneral does not, as 1 understand
right he derived from the Constitution it must
apply to ali ports in the Union, and the judge
expressly goes this length. Of all the construc-
tions of constitutional powers given to the fed-
eral compact this would be the most dangerous
and mischievous in its exercise, and the least
founded in the words or spirit of the federal
compact. I shall refer to it asain in reviewing
tbe arguments of the leamea caunael opposed
to me. But grant the rieht, and it is of no ose
to establish the claim of the United States to
the title of the land. Let them, if they can,
And the authority in the Constitution to make
taws for regulating wharfage and dray age,
and cleaning the slips and docks. Let them
appoint scavengers, and exercise all the juris-
diction which this construction would give
them. They are not advanced a step in their
claim to the property of the soil, which they
nrust establish before they can succeed in this
Tbe presiding judge having referred to tbe
ooinion of the associate who concurred with
him for the argument and that argument hav
ing been expressly adopted by the Attorney-
General, it must be respectfully examined.
It divides itself into two brunches; to show,
first, that tbe city had no title to the premises.
Second, that the land was not set apart ud
dedicated to public purposes.
The first head is supported by the learned
judge under what I roapectfully consider a mis-
taken view of the law of France, p. 04. He
lays it down broadly that by those laws "a
city or town could not acquire right or title to
the soil of immovables, or to the use of them
without letters patent From the king." But
the autliority quoted in support of this show*,
I think, timt by the very fact of establishing a
town, the right to hold real property is as-
auired as a necessary consequence. That aa-
lority declares that no one can establish com-
munities but the king, and adds, "that it is ■
consequence *of this right also, to per- [*60I
mit them to hold real and personal property
for themselves." And aftern.irds, "these com-
munities cannot poBxess immovables, without
the permissinn of the former." To this there are
several answers, all equally conclusive. Finl,
the authority does not require letters patent,
or any letters whatever, fiom tbe king, for
tbe establishment of a townj it requires hit
permission only, and that permission may be
proved by any legal evidence whatever. In the
E resent instance, the grant to the West India
ompany, by whose act the town was laid out,
ifficietitly broad to cover such permission.
ves them the land in allodial tenure, with
naive powers to carry on trade, and niakt
establishments, build forts, sell the lands, els.
And the government gave its Si-nction to tbs
location and plan of Uie town by tbs empkif-
uf its own ofRoers and engineers; snd
if that worit bad been dona solely hy the
IS)
The Mavoo, rc, or Nxw UBLCAna i. raa Otrtm Statu.
eat
■ct of the eompaoj, tbe plan was ratlRcd bjr n-
••iving it into thm pubUs vehiTM, and sfter-
w»Tda more full; when, in HV, it receivpd the
■mrender ot tbe charUr, aad eontiaucd the
goTerDinest of the citj under the original plan.
If, then, the city waa laid ont bj pcrmiMioD
of the king, according to the plan piiiduced, or
even if be oalj ratified auch pltui, and governed
tbe citj hy hi* oOicerB, according to the extent
and oraer of aaeh plan, no otner peraii«sion
waa neceaaarj to Teat Id the cit; the premiBes
in queatioDj for thoae premises are part of the
city, not a distinct proparty acquired by it;
wliicb, accordiog to the authority, required
letLerps d'amortissemcDt to enable them to hold
it. And the want oF this diatinction cauaee the
anor in the teamed judse'a opinion. For can it
be doubted that after giving permiiaioa to lay
out the plan of a great city, deatined, according
to tbe sanguine expectationa of tbe times (ei-
paetatioDs more than realized in our day] to be
the emporium of extenaive commerce, the cap-
ital dty of an Immenae region; aFter deaignat*
ing on it a capacious harbor, commoUioua
•tiCBta, public aquares, sitee for publio build-
lags, and above all, that wilhout which tbe
wbi^ would becotno uaelcaH, eommodioue
quays Becuriog to it a tree acceaa to the river
and the necessary facilities for lading and un-
lading of nwrchandiee; ia it possible to suppose
that a aeparatc grant should be required of all
tbeae component and indiapenaable porta of a
city, to enable the inhabitants to enjoy them f
Whatever letters patent, then, might be neces-
aary to enable communities to acquire real
property after they were created, none could,
ui tbe nature of things, be necessary to give
■ •S*j them the 'enjoyment of those parte of
tbe city itaelf whiob were destined for public
nae; sneb as their quays, streets and aquarea.
Are they not integral parta of itt and if so,
doea not the permiaaion to araate a oity by the
ting, and, a fortiori, bla ereation of one him-
relf, tnelude ttiis necessary grmntt
But suppose tbe grant necessary, and that
Ibe premises were not part of the city, ia it not
necessary to be preaumed that auch grant waa
made? It is a necessary presumption, when a
to give the Utte. Bere, that proof la before the
eonrt. Therefore, it inevitably follows that
vbetbar the laying ont of the town la, as I aup-
poae It, a suflkient grant, or whether the nn-
tttre of the property required a aeparate grant
•^ oonvey it, ia immaterta.1. In the one case the
grsat Is proved, in the other ita ekiitenoe is
DMesaarily presumed.
There is on this head alone an erroneous eon.
elusion drawn from tbe law of Partidas quoted
by the learned judge. That law (tit. iS, 3d
nulid.) defines what aha] I be the common
property of the cities for the use of all the dt-
itMnB, in eontro distinction to that wbkh Is held
by the roagiatrates of the dty for the common
good, but of which the dtiaens have not the
Mtnuaou use; and after enumerating some of
tbein, as tbe banks of tbe rivera, the public
tounfaiins, tbe commons adjacent to the town,
adds, "and other such like ptseee as are eatab-
Hsbed and granted for the common use.
propria ted,
iiiriiw bIho on this bead
adds, "Hbat the plans produced in evldenes
have never been delivered to tbe dty as a mu-
niment of title." This appears not quite cer-
tain. Considering the various chaiigfs ot ju-
risdiction that the dty and province hnve been
subject to, the two aucoeasive conHagratlona of
the city, and the notorious loss nnd removal of
public documents; the probability, I ahould
think, would oertainly be that where lota were
to be sold, buildings erected, and streets located
on the ground, a map or plan muat neceasiirili
hare been in the hands of some local public of-
ficer belonging to tbe oommunity where these
operations were to be performed; but whcre-
eviT il iay hid, whenever its exiatence waa dis-
covered it must have its le^l operatiuu.
What that ia to be is more particularly exam-
ined in the second part of the learned judge's
argument referred to, and adopted as his own
by the Attomey-GcBeral.
*Tliat argument concedes that a dea- I*69l
tination to public usea in a plan is a aufflcient
conveyance of the property to tliat purpose.
That this court has correctly placed the setting
oS of commons to cities on tlie same grounds as
Ihni of streets and highwaya; but, he says that
"although this may be perfectly correct under
the common law, yet the dedsioa cannot apply
to a ease ariung under tlie French or Spanish
law." And he thinka that one example will
show this. "The Supreme Court cousiiiers,"
he says, "that the fee may be in abeyance un-
til a grantee exists who can accept it, and that
then tbe grant ia irrevocable." Tliii doctrine
he thinks irreconcilable with the rule of the
French law that no community can have a
right to tbe use of immovable property without
letters patent from the king, or with the fipnn-
ish law, which recogniies no place as common
property for the use of the dty, but that
which it acquires by grant, purchnse or pre-
Bcription. But, are there any such rules in the
French or Spanish lawaf I truat I have shown
there are none; and it is worthy of rem^irk
thst on thia branch of tbe argument the rulea
are sreatly extended beyond tbe authorities
wbieo are supposed to have established them.
Thus, the text from Domat says tliat the king
ian permit communities to possess property
for their use (pour leur usage), not the ues of
?roperty, but the property itself for their use.
wo very distinct things — one, a right to pur-
chase real property to make their own use of
it, the other to purchase a use or servitude, in
the property of another. But the answer to
these supposed rules, and to their application,
has already been antidpated.
The following part of the opinion is not ap-
filicable to the present suit, for it consista sole-
y in an endeavor to establish a right in the
King of France, by virtue of hi;i sovercipity
and hia auperintendenee of the police of cities,
to dispose of the property dedicated to tlie
public use of the citixens; a right ivhfeh he
thinks devolved on the King of Spain, who, as
was contended in that caac, had made a grant
of the land in dispute, part of thia quay, to on4
of the partiea in that auit. Now, although I
should conteat every part of this argument, yet
Hupposing that the Kings of France and Spain
jby virtue of some regal power, which I con-
tend they never bad) could diapose of property
which they themselves had mads part of tin
Dublic orooertv of tbe dtizena. ret tbev ha*i
on SursKHE Court of t
■Ot VsreUcd tt with respect to the premucB
BOW in questiOQi tbey were handed down to
tba eotpor&tlon of Kew Orleans in regular iuc-
eeMloa; and if the sovereignty of tlie
TOO*] 'country came in the aame mnnncr to
tba United State*, it canie to them
: the
the king to liave possessed. It
Ited by the powers delegated in the Conititu-
tion, and we shall certainly look in vain into
that instrument for a power to interfere with,
much less to claim the property which liad
once been dedicated to public use.
This part of the argument also errs in itat-
Ing that the Supreme Court decided that mere-
ly having a space vacant id the plan of a town
was a sufliciGnt dedication of it to public pur-
pones: all the blocks in the plans we bava
firoduoed, lying in the back part of the city, are
eft vacant; they are not subdivided into Iota,
yet there is no pretense tliat they were intend-
ed for the use of the dty; they were left bo
untL purchasers ofTered for the lots. Some-
thing more is required, if I understand the de-
cisions of the court. The space, from its situa-
tion, must appear to be necessary for the ac-
commodation of the inhabitants (such as that
of the land iu queetton), or there must be some
evidence of such dedication b;? written, or even
verbal proof; both of wliich (situation and writ-
ten designation}, be it remarked, concur in the
present case.
A material circumstance, however, has entire-
ly escaped attention in the argument, which
renders of no avail all that part of it which is
drawn from tlie prerogative of the iiing to re-
sume his grant or curtail any servitude he may
have created. The land on which the town of
New Orleans was laid out was private property,
not the domain of the crown. It is forgotten
that the province of Louisiana was, after the
surrender of the grant to Croiat, granted to
the West India Company, to lioM m allodial
tenure, independent of any feudal fights that
might attach to the crown; that they founded
the city with the assent ot the crown, on their
own lands; and when, in the year 1732, they sur-
rendered their grant, the king took only what
they bad not disposed of. But they could not,
it it cnnccded, alter, the plan so as to deprive
the cititens of any adiantagp it gave them;
therefore the king, who received only their
rights, could not. A word or two on the sup-
posed right of the king. It is founded on this
reasoning. There is no doubt, it sup posses,
that the corporate power may, with tlie as-
sent of the sovereign, change the destination of
places originally intended for public use, but
which an alteration of oircumalaiices has ren-
dered improper for that use. But the kins
unitod both these powers, therefore his will
301*1 was sufficient to change *the destina-
tion. This reaanning appears t« me to be built
on an incorrect view of the nature of the
French laws relating to the communities or
municipalities of towns or communities. No act
•f incorporation was necessary to create thcra.
The permission of the king, as we have seen
b; tb> quotation from Domat, was sufficient. ,
Once created, they had their rights independent i
nf the crown; rights of property, and fran-
chises, which he could no more le^ftUy iuvbda
t UifiTKO Srana. im
thas be could the prapertj of an iudlTidiuL
In France, most of the towns hrid their fiu-
chises and property by long usue, which, li
general, supposed a royal permission. In tbsir
colonies all the towns were created by the
same means which were pursued in the preaeni
caEP; the survey under royal authority, or that
which it had delegated, and tbe eubseancBt
fovemment by municipal offlceia, appomM
y the crown or permitted to tie choaen by ths
people. Tbe argument seems to admit in obs
part Uuit after an incorporation thia union of
royal and corporate powers ceased. If, tlKi,
the survey and plan hy royal autliority were
equivalent under the French to an incorpora.
tion imder the common law, tbe argument to-
tally fails. How far It anplied to toe Spanish
law (more immediately the subject of contro-
versy in that suit) may be judged of by ths
1st law, title letfa, of the Tth book of thi>
Noviss'ma Recopilacion, which enncU that all
royal grants made or to be made of tbe right*
or property of any cities, towns or plaeea, dial^
be declared void.
The same want of attention to tbe distin
tion between lands to be granted to a city, ad
its propios, that is to say, lands not for com-
mon use but for supporting the charges of tilt
city, and there designated aa a component part
of the city in its £st formation, pervades the
nrgument (p. 73); where the vioeroys who bwl
the power to assign such propios to new cities,
were directed to send to tlie kiuK an account of
what they have thus designated, that he may
conlirm them, is brought to prove that desig-
nation alone is not sumcient, there must be aa
after grant. But this law speaks of one thing —
our case — and the caae before tbe court in Loa-
iaiana of another. A mere designation of ptirt
of the royal domain out of the city for Hit
purpose of supporting the city charges, may re-
quire a regular grant, while a mere dlsignatiea
of a part of the city for the common use of tb«
inhabitants may be, and is sufficient without a
grant. Tlie distinction between the three kinds
of oommna property that may be held by a
municipality is clearly drawn iu the
■Spanish law (3 Partidas, laws 7, 6, 9, i;*7«:i
tit. 28) ; one that is common to all the worl^
such as the port, the shores, etc; another for
the common use of the citizens; a third for the
expenses of the community, but which last an
not subject to the use of the eitiiens indiridu-
ally, as tbe others are. Theae last are called
propios, and by confounding the lawa relating
to these three, we run into inextricable error.
The whole of this opinion of tbe truly learned
C' jdge of the Supreme Court of Iiouiaianai ia,
owever, based on tbe idea that tbe dedication
to a public use in the plan cannot operate aa a
grant, according to the laws of France ot
Spain ; although he admits that tbey would,
according to the laws which govern the other
States, For in the conclusion be admit* tbat
if they hail been granted to the dty, tb«f
would not have passed by the treaty to the
United States.
Before I finish my examination of thia able
opinion, which the Attorney -General haa aoa-
verted into a part of hia argument, I a»nac4
but make but one general remark on tbs power
wbioh it assumes to be vested in the king* t>t
France and Spain to reiunw and dispoM •!
Tbb Hatdb, nc, or Jtaw Okuaih r. Tm Uinm tttAna.
tt«M parts of « dty nbich they hkd designated
tar public ubb in the plana they had made of
it; a power inuated on with respect to a quay,
to alt the land lying between the city mi the
river, shutting it up cuuipletfly from the onlj-
means ol' carryinff on its commence, and which
yet it is acknowledged they did not possess
with reappct to the streets. But supposing,
contrary to the fact, this town to have been
laid out on land belonging to the king, he gave
the Blreetn iD no other way than he gave the
■pace in question; if the one binds bim, so does
the other. The law by which the city holds is
not the mere common law, it is the law of
eternal justice, pervading every system, com-
mon to e»ery country, and from which every
departure ia an injustice and an anomaly.
What ia given canuot he resumed without
wrong, any more than that can he token which
is derived fmm any other source. King, re-
public, or individual, who gives a right over a
property, cui no more resume it than he can
seize on thit which he never possessed. The
designation in the plan meant the same thing
in t^uisisna uniler the French law that it did
in America under the common law; in both it
was meant to give a right; in both that right
I have now examined the title set up by the
appellees. I have shown that it cannot be sup-
ported by the words or the spirit of the treaty
under which they claim.
103*] 'That the State decisions which are
suppoied to strengthen it are more numerous
ia lATor of the defendant. I hope I do not
Batter myself in thinking that the only one in
favor of the appellees ought not to l>e consid-
ered as authority, because in aome points the
eause i* different; in others the reasoning on
which it is founded is unsound, and because
the court giving the decree was divided.
Although in showing the weakness of the
plaintiff's title I have necessarily ant ici Dated
many topics which enter into the establisli-
ment of ours, yet I must pray the indulgence
of the court while I spread it before them in «
eonnected point of view.
The topographical position of the lands in
dispute ho9 been so frequently deacribtd, nnd
!■ so accurately laid down on the plans which
are before the court, that no further descrip-
tion ia Dccessary.
The following historical facts are materiiil
piirta of the case, and are proved b^ works ad-
mittted as authority by the parties.
Thftt the Colony of Louisiana having been
rreviously granted to Crozat, he, in the year
717, surrendered it to the crown; and that a
amw grant was, in the some year, made to
the West India Compauy, conovding to them
dl the lands in allodial tenure, with eatensivo
powers of making establishments of commerce.
That the posillon of the chief town wm
designated to be at a place where New Orleans
now is, about the year 1T20; but that the seat
of government was not removed from where it
bau been first established until 1724, when s
risn was made, of which we have a oopy signed
\ TJ.- I'anaiT. who ia proved to have been royal
eirjiiieer, bearing the dat« the ZStb of May,
17:^1. and designating by diflarent colors the
buildings made before September in the pre-
riHling year, and thoae mnde aioM. That al-
9 b. eO.
together soine hundreds of houees then appear
to have been already biult on the streets aa
delinested on the plan.
That on the ISth of May, 1728, another plan
was made by Broutin, also a royal engineer,
conformable, [n the designation of the streets
end public plans to that of De Panger, with
the addition of a great numlier of public and
private buildings marked on it, all situated on
the streets as designated in both plana.
That in 1744 another plan was engraved and
published in Charlevoix's History of Louisiana,
eonforniable in all reapecta, except in the addi-
tion of other improvements, but without any
alteration of the streets, wliarves and public
places, to the plans before mentioned. That
•thia work has been admitted as au- pTOJ
thentic by the parties.
That in all these plans the word "quay" Is
written opposite to the front row of houses
and on the space between them and the river
vihich space constitutes the permisea in ques-
That on the Hrat and third of these plans the
ditch and fort i licet ions inclosing the Inwii plot
are delineated, and that they are carrird round
three sides, and terminate at the river on each
side, inclosing with the river the premises in
Upon these facta and documents, together
with the admissions on record that towns in the
French Alonies were not created by act of in-
corporation, but by plana made by the royal
engineers, and dcpnaited in the bureau of tite
marine, from whence they have been drawn;
in addition to the corroborating facts of pos-
Bfsaion, and other circumstaniva hormftcr al-
luded to, the appellants rest their claim of title
to the premises in question as a part of the towa
The caaes of Cincinnati and Pittsburg con-
tain all the law necessary to be cited in order
to establish a title under this evidence, unless,
1. A body of law should be found to govern
this case different from that under which these
decisions were given.
2. Some evidence should be found in the case
to counteract tlie force of that relied on by the
appel lanta
1. The OBsea are perfectly parallel, except
that the fact of destination, which was proved
by inference and circumstantial evidence in the
one of the cases decided by this court, and by
Qarol testimony in the other, is here shown by
written evidence on the face of the plan itself.
That here the ditch in the first plan, suit after-
wards the fortifications, which formed the
boundaries of the town, are deaigiiated on the
plan, sbowiDA the premises to be as much an
mtagraJ part of the town as the streets or
squares; it Is therefore not a parcel of land
claimed to have been given to the city, but
one of the public places of the city itself with-
in its designated boundaries, that is claimed in
this suit by the United States aa their proper-
ty, to be disposed of as they may think fit.
In this case, aa in those decided by this court,
the lands in dispute are such as are ubsolutely
necessary to the wants of a commercial city,
more particularly as applicable to those of a
great commercial seaport. The cn.'<es, thea,
only differing in points which make tliis struQg-
er than those decided, they must be considered
as authorities *in point unless it en be ['lOS
Sdpibmk CouKt 4f tin Vnnto StAnk.
thown that thpj are not governed by the stme
taw; hilt this inquiry has nlrcadf been made
in discussing the opinion of the court tn the
case of Dp Armaii. And I cannot but thinit
tTiat it has bpnti anfficientlf shown that the
principles vhich must govern the casea are ea-
sentiallj the same in both ajatema of laif. I
cannot, however, avoid drawinj; the uttention
of the court to the very lenmed and able opin-
ion dplivrrivl by the diiBenling judjfe (Martin)
on this point, p. 4S. He naya: "^ have looked
in vain in Ilie opinion of the court for any ref-
erence or allusion to nny principle peculiar to
the common law of England. It has appeared
to me thnt the caae was determined on the
jnat, broad and f;pnera) principlca of law in the
eorpua juris civilisr honeste vivere, to act hon-
estly! polliciU servBre fiitem, when we have
made a promise to k<>ep it; and the necessnry
corollary, turpe est (idem fa Iti', it ia ■'hii'iieful
to diinppoint expectaMons we liave aullioriied."
3. If the laws are the aame, and there is no
difference in the prima fa^ie case we hare
innde, the only circumatance which can pre-
vent A similar decree would be the production
of Butiie ufidunee to counteract tliat on which
we rely. This liaa l>een attempted. With what
BUcce):s we shall next inquire.
1. It has been contended that although thia
■pace may have been desi^ated for public uae
as a quay, yet bein); given by the hing he
mi^ht rcsutne his grant; that the United States
succeeding to hia rights may, when they think
uruper. nmke the like resumption, and that the
kinff of Spain achully did exercise it. by mak-
\ng iiranfs within the contested limits, with the
acqiiicBccuce of the city authorities.
The two first points have been already «i-
amincd, and it hns been sliown that no such
riciht of resumption did eirist, or could exist,
oillier In France or Spain; that fn the latter
kintrdom it was forbidden by positive statute,
and in the former, and indeed everywhere, by
the lirst piinciples of justice.
The e.wreinc by the Ppanish authoritv re-
maina to he exan:iiicd. The ploinlifT produced
aix grants or permissions to build on the apace
In ljuciilion. Of tlicbi:.
The first fa that of Slagwon, who petition*
for a prnnt of n parcel of land near tlic levee,
for the purp'i*? of pitrsnin); his buiineas as a
ship carpenter, wliieh he atntPS to be essential
to the service tit t)\r- king. This petition is re-
ferred to the law offleer of the crown (the aa-
■esHor), who ^ivea it as his opinion that, "al-
TOfl'l thounh the council of 'the city might
have some objection on account of the lot being
aituate'.l within the precints," yet he arlvifos
the grant from the necessity of having a ship
yard. But no grant was made, alth^iugh the
opinion was delivered in August, I7M, and the
transfer of the province did not take place un-
til December, 1803.
This fact, then, corroborates instend of Im-
pairing our title. The law ofUcer derlares that
the city bad t;ood objections, thnt the land lay
within the limits, end not withstanding the st-
legpd neceasity no grant waa made.
2. The next is a similar application from
Cliesf. a calker. for permission to build a shod.
But this is addrensed not to the government
hut the citT authorities, and permission is giv-
en to build and hold the shed at their will.
•ft
Another evidence not of r^al bat of HnM-
pal authority.
3. The third grant Is to Bertrand, but H !•
merely a permixaion to bnild a shed, immedl
ately after a distressing oonfiagration; which
waa BO far from conveying any property that
the petitioner could not repair the shed with-
out asking a new permission.
4. Urtubuise asserts to the commissionen of
the United States (as they report) that he had
permission to build from the governor, but pro-
duces no authority.
Thus far, then, nothing is proved to Impnii.
but something to strengthen, the case of the
appellanta. Their claim acknowledged by th'.
lew officer of the crown in one instnnce; tbt
actual exercise of dominion over it in another
Tn the third, nothing but a permission dictated
by charity, in a time of great calamity, wbeo
•Iriit fi^;ii;ny ol Lhe powers of different olfi-
L-era would not be made; and In the fouitb.
nothing but the allegation of « party pro-
The two remaining grants to Metringer and
Llotaud are, it must be confen^ed. acta which
directly asserted the riuht of tin- King of Spsis
to dispose of the property in c|iieHtion) but ilie;
were the acts of a auliordinate olllver, and were
so far from being acquirared in by the city tint
an appeal and remonsti-ance were made to tbt
king: on which, according to the usual dilator]
procceilings of that monarchy, jio decision «u
made prior to the transfer. This fnrt in >I»I«1
fn Martin's opinion (p. 47). No other grants,
however, were made, and the AUorncj- Central
might have added to these arbitniry acts of
disturbance one of a more striking kind; when
a. Spanis!i governor saoririced fpur of the prin-
cipal inhabitants, and plnred the tyrant's mark
of blood on the very ground now in qaeition
My learned friend's humanity would not i>erniit
him to avail himself of 'this act of pos- [*70I
seasiun, but it ia quite as good as another that
has been relied ou — the parading of the tmni*
on a part of the prcnii'>es. After thia atln-
trary sacrifice of the lives of its citiii'iis bytla
Rnt giivci'iior, his suci.tsi>oi'% mj^^ht rvaa,)iiahl>'
thinl; thcms;;lvts authorii.J to lisu lllV.c jeic
tiiou;F '" diipusitig of I lit' prjimty of the dly;
and if it had been nci)uicsced in. a better rea-
son might have Iwen alleged than an acknaol-
edgmcnt of the king's title.
The corporation, it is said, have by varions
acts acknoivlcdg.d the ri^ht of the United
States. They have pelitioned for and accept
ed grants of part, of the land, but this wrt« dnnr
before they had disi^vered the eviib-nce of ttwir
title. And even if done with a full knowledge
of it, oould never devest them of the propeity-
No act of interference with the riHils of thf
city having been found under the French gov-
ernment, one of our strong pieces of ttatimonj
has iieen ingeniously made to supply this defi-
ciency. We produced nineteen ancient grants
of lots in the front row of the city, all of
which called for the quay as their front bound-
ary; these were produced to corroliorato the
evidence resulting from the inscription of that
word on the pinna. Now, one of these, instead
of usiiiB the expression bounded by the quay,
anys situated on the quay, lur la qual: just ai
we say a farm situated on such a river, a lot h
auch a atreet. But to take away all doubt oa
Pcterc 10
issa
Taa Uatdr, n«., or Nbv Obuuti t. Tmi Uktrd Sr*ns.
m
IIm aubjeet, we li*Ta tb« lot tn questton located
»n the mitp, with tba name inscribMl and
shown to be one of the front Iota bonnded by
the ijuiy. Thc«« are the only eTidenecB of tn-
terference by either of the go*emnianta: none
by France from the laying out of the city In
1720 to the tranafer, forty-nine yean, and awch
■ > have been desmbed, that of Spain, aince.
An argument has been lued which require*
(nine notice. It i» said that although the in-
haMtnnta of the city, individually, might have
a right to the uae of tfala ground, yet the cor-
porate t>ody, now representing them, can have
111 (illri becHuae, during the French and Span-
ish diminion, there waa no corporation. The
kinp, if I undarstand the argument, had the
power of the corporate body, and held the
grouTid for the use of the citjiens; that the
fe« waa in him, aubject to the aervitude, for the
beneflt of the citizen*; that this right was vot-
ed in the United States, by the tranafer, and
th&t they now held It In the aame manner that
the hing did.
The flrat objection to thfa ar^ment la the
radicnl one that every community, under the
Freneh aa well as the Spaniah government has
tta otRcera to represent them; and although,
?©••] by the statement •of facte, it ia con-
lidered that what we call an net of incorpora-
tion waa not passed, yet all ita effects were
Esduced by the erection of the town. Under
th covemmenta, every town had ita munici-
paJ officers, who took charge of its property
and «BBerted its Intereata, very fr«]nently,
•gainst the encroachments of the king himaelf ;
nn inatanoe haa been already mentioned in the
remonstrance of the cabildo against the gover-
BOi'b grants. ^Again, if there waa no corpo'
nte body, nothing to represent the dty but
the kingly power, how and to whom did the
king malce the grant of the commons and the
lota fronting the public square, for the propios
of the city, as haa been proved in this cause.
Not to himaelf, surely. Nol he made it to the
eabildo, for the use of the aitj. The ground
deaignated for streets, sqnarea, and quaya, by
the plan, veated in the municipality of the
town, for the common use of the citiieni, under
the French government passed to the cabildo,
under that of Spain was escrciaed by a tempo-
tmry municipality, appointed by the Freneh
rfect, who received the transfer from Spain
order to deliver it to the United Btatea.
Tbey held it until the United States entered
into poaseBsion, when another proviaional mti-
■idpality was appointed, and remained in of-
fice nntil their powera, by a regular act of
iBcorporatlon, were vested in the preaent de-
fendants. By that act, "all the estatea, wheth-
er real or peraonal, the rights, dues, debts,
elaima, or property whatever, which heretofore
belonoed to the city of New Orleana, or had
been oeld for its uae, by the cabildo, under the
SpMliah government; the municipality, after
the tranafer, in the year 1803, to France, or the
municipality now Milatin^, ahall be vested in
the mayor, aldermen and inhabitants, to be en-
Joyed by them and their auceeasors forever."
Thia act passed during the flrat atage of ter-
ritorial government, when all laws were aub-
mitted to Congreaa for their revision. Conse- '
nantly, they are estopped from saying that ,
IMT nave any Interest In property which nt
any time was held bj the mnnlclpallt; or Iha
cabildo; but it has been Indisputably shown
that for more than fortv-ntne years — from the
year 17S0 to 1769 — under the French govern-
ment, and from that time to the transfer In
1803 under the Bpaniah, there haa been anch
pOBseaaion of the premieee. Therefore, If evM-y
other title were wanting, this alone would be
Buffleient to establish our right.
An equally strong obJKtion to this argn-
ment aiiaee from the conatitutional power of
Congreae. If the kinga of France and Spain
'could be truatees for the Inhabitants [*1tt
of cities, and exercise either mediately or Im-
mediately, all the municipal powers necesaary
for the protection of such rights, how Is Con-
Ess to interfere, even if the aame rights had
n transmitted to them by the terms of the
treatjrl
There Is a want of distinction, some eonfn*
slon of ideas In this branch of the argument.
An acknowledged power and dnty of sovereign-
ty ia confoonded with one with which it is not
invested, and which It could not exercise if it
were. The sovereign power has no right to ex-
erciae the duties which, by Its grant, It has
devolved upon the authorities of a dty or
town ; it does not hold the property which is
dedicated to the public use of the eitiiens of
that town, but it always retains the power of
obliging their municipal ofBcerm to observe the
terms of the grant, to preaerre the property
for the use for which it waa given. Thus, im-
mediately after the transfer of the country to
the United States, before the local territorial
government had been established, if the muni-
cipal officera of New Orleans had attempted to
change the streets, to dispose of the publia
square, or in any other illeiifil wnv to injure
the rights of the eitizena; the United Btata%
as the aovereign of the country, by its proper
oflieers, might have taken cognizance of the
case and prevented or redressed the injury.
Then, they might have sustained a suit In their
name, as the sovereign of the conntir, for an
injunction to prevent an illegal sale of eommon
property; but not even then, one tike the pres-
ent, to recover the poaseasion of it. But after
■ local ^vemment had been eatabllahed under
the territorial grade, with its legislative ooun-
cil, ita judicial and executive offlcers, and all
the other attributions of supreme power, re-
stricted only by the nowere vested in the gen-
eral government; when, afterwards, in pur-
suance of the terma of the treaty, Louisiana
was admitted into the Union on equal terou
with the other States; in both these cases,
that superintendence over the municipality
which bears the attribute of local sovereignty,
was transferred to the territorial first, and aft-
erwards to the State government, and can
never be exercised by the United SUtes nn-
lesM, indeed, the oonatructioD of the Constitu-
tion should be adopted which boa for the first
time, that I am aware of, been contended for
iu this cauae. But even then, if the power giv-
en to Congress to regulate commerce shonid be
found to mean the grant of a jurisdiction over
wharves and ports, something more would be
necvasary before that power could be excrcioed]
a code of the police of porta, the creation ot
officers, hitherto unknown to our government,
and soma *mode of settling th« dashing t*710
no
htteRiU of the citiM, th« SUtea, and tbe Unit-
«d State*, in all the ports of the Union. For,
( repeat, if the power exists on the wharvm
of New Orlfana, it must exiet in those of all
the Statea, for the argument derives it from
the Constitution, which must operate upcm all.
rhat so great an extension of the poweia of
the genera! government haa never before been
thought of is a strong proof against its adop-
tion, and I quit the argument withont any fear
that the court, by sanction, will make an in-
road on State rights, which the learned coun-
ael for the United States woald be the flrat to
deplore.
I may hope from this view that I have shown
that the United Statea can claim no property
1q the soil.
That they cannot recover in this auit even if
they had a title, because they have not shown
Rich a posBession as would sustain a auit for a
oerpctun! injunction.
That the decision of the State Court forms
no authority to guide that of this court.
That the lands in question were dedicated to
public use ar.d Tested in the city by evidence
that cannot he controverted.
And, tliat the rights of the city, under the
French and Spanish government, have been
regularly transmitted to the defendants, form-
ing a chain of title ttiat has vested the prop-
erty In them subject to laws for the due ob-
•ervance of which they are amenable to the
State authorities, not to those of the United
States.
Bnt if there should be a failur« In any of
these points, there ia one on which we cannot
be mietnken:
The title derived from prescription by a poa-
tessioa of more than a hundred years. I.iiiw 1,
lit. 7, lib. G, Recop.; and law, 1, tit. 16, lib. 4,
Keoop. To rebut this, an authority has been
introduced form Domat to show that things
destined for public use cannot be acquired by
prescription, an authority showing clearly that
Eroperty of that description cannot be acquired
y an intruder on the common property of a
Bity, but most clearly not forbidding the ac-
quisition of them by the city under that title;
a law made for the protection of public prop-
erty, not to prevent the application of a law in
their favor which oomea in aid of lost titles.
Ur. Justice H'Lean delivered the opinion of
the court;
This case is brought before this court by an
appeal from the decree of the District CMurt
for the Eastern District of Louisiana.
711'] 'Under a practice which is peculiar
to l^iii'iana. the attorney of the United States,
on their behalf, presented a petition to the
court, which represented that the mayor of the
city of New Orleans, In pursuance of an ordi-
II. ii.c nr the city council, bad advertised for
sale, for a day then past, and was about to ad-
vertise anew, for sale, in lots, the vacant land
included between Ursuline I^evee and Garrisnn
Street, and the public road in the city of New
Orleans, and also the vacant land included be-
tween Custom -houBe Levee and Bienville
Street, and the public road in the said city.
And the petitioner further stated that by the
treaty of cession of tbe late Province of Loui-
siana by the French republic to the United
States of America, the United States succeeded
to all the antecedent rishta of Francs and
D SVATM.
UM
Sp^n. as tbey then were, In and vnr tbe mM
firovince, tbe dominion and possession thereet
ncluding all lands which were not prirat*
property, and that tbe dominion and posses-
sion of the said vacant lands, ever since the dis-
covery and occupation of the eaid province by
France, remained vested in the sovereign; and
had not, at any time nrior to the date of uii
treaty, been granted by the sovereign to th«
dty. And the petitioner prayed for an In-
i' unction to restrain tbe city council from scll-
ng the land, or doing any other act which shall
Invade the rightful dominion of the United
States over said land, or their possession of It,
and a perpetual injunction was prayed.
To this petition the mayor, aldermen and in-
habitants of the cit^ answerrd, and denied tht
material facts and allegatiai.s in the petiticni
and they sjiesially denied that the dominion
and possession of the Innd, at the time Louisi'
ana was ceded to the United States, were vest-
ed in either the King of Spain or the eover-
eign of France, either as vacant land or under
any other denomination.
And in a auppleniental answer the respond
ents say that tbe inhabitants of the city of
New Orleans are the true and lawful proprte-
tors of the vacant lote tbey have been en
joined not to sell.
1. "Because all the space of ground wbicl>
exists between the front line of the house* o!
the city and the River Mississippi was left b)
the King of France, under the name of quays,
for the use and benefit of the intiabitant* of
2. "Because if since the foundation of tb''
city of New Orleans said space of gronnd be-
came wider than was necessary for the public
use, and the quays of the city, it was in eonse
formed by alluvion ii
from tinia immemorial by the inhabitants of
tbe city, or at their expense, to the levea In
front thereof, to advance it nearer to the river
than it waa formerly.
3. "Because, by the laws of Spain which
were in force at the time when said alluvions
were formed and said worlta were made, allu-
vions formed by rivers in front of cities be-
longed to the inhabitants thereof, who may dis-
pose of the same as they think it convenient,
on their leaving what ia necessary to the pnb-
And the respondents say that the vacant lots
are of great value, and cannot be disposed of
unless tbey shall be indemuiiied by the gov-
ernment, etc.
A general replication was filpd by the dis-
trict attorney in behalf of the United SUtea
Statements of facts signed by the parties ap-
pear in the record.
If this cause be eonsidered on tbe trcal
ground on which it la presented by the fseta
and the arguments of counsel, it is one of great
importance. In one view, the title to property
of the value of several millions of dollan de-
pends upon its decision; and in any aspect ia
which it may be considered, prineiplca oi the
civil law, and the usages and custonts oi (he
governments of France and Spain, and also, ft
is insisted, important principles of the comoon
law, as well as the effect of certain acta of W
own coverameiU. ara involved.
163)1
Tkk Mavok, nc., or Vvk OusjUi* *. Tu Urnnb Stan.
TU
In tbe B^le argumcDta which have been he»nl
•t tb« bftr, tlie^ie topici h>Te been elabtrntely
«Minincd and varionslr illuatriited, and it n iw
becames the doty at the eourt to pronounce
their opioion in the caae. Being canaLituted
the or-;!!!! of tliat opinion, the mattera in COD'
traverty will be considered under the loLlowing
1. Tfae right! of the plaintiffg in error
the princi|>it's of the common law.
2. Tlicir rights under the lawa and niaget of
Prance and 6pain.
3. Tl>e intprest of the United Statei In the
property claimed b/ the atj, and their juria-
diction over it.
Tlmt pro])(Tiy mnv lie dedicated to public
nM ia a well -established principle of the com-
mon law. It is founded in public convenience,
and has been sanctioned by the experience of
ages, Imli-cd, witiiout such a principle, ''
would be difTicult il not impracticable for
eietj', in a state of advanced civiliation, to i
713*] joj those advantages which 'belong
fta condition, and which are essential to its ac-
•ommodation.
Tha importance of this principle may not al-
ways be apnrecjated, but we are in a great de-
cree dependent on it for our hisbwaya, the
atreets of our cities and towns, and the grounds
appropriated as places of amusement or of
public business, whicli are found in all our
towns, and especially in our populous cities.
It is not essential that thia right of use
•hould be vested in a corporate body; it may
exiat in the public, and have no other limita-
tion than the wants of tho community at large.
This court bad occasion to consider this doc-
trine in two important and leading cases, which
lately came before them, and which are report-
«d in e Peters. The first one was the City of
Cincinnati *. The Lessee of White.
In 1780 the original proprietors of Cinetnnati
designated, on the plan of the town, the land
iMtwecB Front Street and the Ohio River as a
eominun for the use and benellt of the town
forever. A tew years afterwards a claim was
•et 1^ to this common by a person who had
procured a deed from the trustee in whom the
M oi ti:e land woa vested, and who had en-
tered upon Ibe ci>mmon, and claimed the right
of posst^ssion. The proof of dedication being
made out to the satisfaction of the court, they
■natained the rights claimed by the city. At
th« time the plan of the city was adopted by
the proprietor!, and this ground was marked
on the plat aa a common, they did not in fact
poaaesa the equitable title to the apace dedicat-
ed; but they shortly afterwards purchased the
equitable title, ond il was h«ld tliat under the
purchase the prior dedication woa good.
In their opinion, the court refer to a great
Bamber of decisions of this court and others
in thia country, and also of the highest courts
in England, to sustain the principles upon
which the decision was founded. The doctrine
la now so well settled and so generally under-
stood that it cannot be necessary to cite au-
thorities in support of it.
In the caae of Barclay et al. ». Howell's
Leasee, the same principle was sanctioned, as
applicable to facts somewhat variant from
thooe which constituted the Cincinnati caae.
In 1784, the Representatives of WillUm
■Tlvania woa vested, by tlidr ujent, laid eat
the town of Pittsburgh, The original plan ol
the town, the eourt say, "shows that it was laU
out into lota, streets and alleys, from the junc-
tion *of the Allegheny and Mononga- [*714
hela Rivera, extending up the latter to Grant
Street. With the exception of Water Street,
which Ilea along the bank of tbe Monongahela
all the street and alleys of the town were dis-
tinctly marked by tbe surveyor, and tbeir width
laid down. Near tbe junction of the rivera, the
apace between the aoutbem line of the lota and
the Monongahela River is narrow, but it widens
as tbe lots extend up the river.
"From the plan of tbe town it does not ap-
pear that any artificial boundary, aa the south-
ern limit of Water Street, was laid down. Tbe
name of the atreet is given and ita northern
boundary, but the space to the south is left
open to tbe rirsr. Ail tbe streeta leading south
terminate at Water Street, and no indication ia
given in the plat or in any part of the return ol
tJie surveyor that it did not extend to the river,
aa it appears to do by the face of the plat.
And the surveyor being dead, hts declaratlona
at the time of making the survey that Water
Street should extend to the river, were sanc-
tioned OS evidence; and it appearing that the
convenience of the town required tlie exten-
sion of thia atreet to the river, and there being
no statement or line marked on the plat of tha
town as opposed to It, and aa the public for
thirty years or more, in some parte of th*
town, bad thus used the street, and that prop-
erty had been bought and sold in reference ca
it. in this form; it was held to be sufficient evi-
dence of Its having been dedicated to the pub-
lie. The street thus extended afforded a large
and convenient space for commercial purpose
along the shore of the river, beyond what was
required for a street.
On the 26th of September, 1712, about thirty-
eight years after Louisiana hod been taken
poBseasion of by Laaalle, in tbe name of the
King of France, a charter waa granted by the
king to Crozat, conferring on him exclusive
righta for coramercial and other purposes, over
a great extent of country, which included th*
territory that now forms the State of Louisiana.
The absolute property in fee-simple waa
vested in him of oil the lands he ahoiild culti-
vate, with alt buildings, etc, he taJclng from
the governor and intendant grants, which were
to become void on the land ceasing to be Im-
The laws, edicts and ordinances of the rtalm,
and tbe custom of Fans, were extended to
Louisiana. This charter was afterwards sur-
rendered by Crozat to the king; and a new one
was granted on the 6th of September, 1717, to
a corporation styled tbe Western Company.
'The land, coasts, harbors and islands ['TIS
in Louisiana, were granted to this company, as
they had bmn to Crozat, "it doing faith and
homage to the king and furnishing a crown of
gold, of the weight of thirty marks, at each
mutation of the aovereignty."
The power is given to this company to grant
land allodialty. And under its auspicea, the
Hroiind where tbe city of New Orleans now
-•lands was selected aa a place for the princi-
pal settlement of the province. A short time
afterwards the foundation of tbe city was laid,
lU
GUWMS COVBT or lUK UMIISO SlATEa.
improvempnta. Id 1784, and alto In 1723, bj
the facts proved, it aeeina mapi of the town
were made, on which the VBcaut apace now in
controfera; wu designated bj the name of
"quay."
Tbe Waatem Company continued to act un-
der ita charter until January, 1732, when, with
the king'a leave, the diarter waa auiiendered,
and a rctroceaaion waa made by the company
of the "property, lordahipa and juriadietion of
Louisiana."
The town of New Orleana waa eatabliahed,
and the plan, at deai^ated in the maps re-
ferred to, adopted, while the country waa un-
apace in contest was made by It, ao far aa a
dedication ia abown br the plan and the in-
dorsement of tbe word "quay" upon it.
In the agreed facta, a quay it admitted to be
a vacant space between the flrat row of build-
inga and the water'a edge, and ia used for the
reception oC gooda and merchandiae imported
or to be exported. In the Civil Code of Loui-
aiana, a quay is said to be "common property,
to the uae of which all tbe inhabitanta of a
city and even atrangera are entitled in com-
mon, auch aa the streets and public walliB."
The term is well understood in all com-
mercial countries ; and whiUt there may b«
aome difference of opinion as to ita definition,
there can be little or none in regard to the
popular and commercial Bi^niScation of it. It
deaignatea a space of ground appropriated to
the public use; auch uae aa the convenience of
commeroa requires.
This entire vacant space haa been used (or
the purpose to which it waa appropriated, with
but occasional and alight interruptions to small
portions of it, from the establishment of the
deaignatioQ of the quay in 1724 until the
present time. The interruptions referred to
were not auch aa deprived the public of the
proper use of the ground. They were generallv
of a temporary nature, and were permitted,
TIB*] 'where private accommodation was in
some degree connected with the public con-
venience. Temporary abops and hatha, which
were constructed upon thia ground, were of
this character.
The public eatabllshed, at different times and
for different purpoaea, buildingt of a more per-
manent description; but theae were rendered
neceaaary for the public service, and they aeem
not to have encroached, to any injurloua ex-
tent, on tbe public use of the quay.
Borne of these building* have long since die-
appeared, and any of them which may atill re-
main, do not anbjeet tbe city or the public to
any inconvenience.
The city authoritiea, at an early day, would
modation of the ioldlera, which were there
stationed (or tbe protectloD of tbe etty. And
mneb leM would tiNy be expected to <rtiject to
the nee o( the common (or tbe oeeaaional per>
fonnaBoe of military evolntlona. The custom-
house and public warebonse erected on this
pvund by the Spanish government have dia-
appeared, and the conatruetlon of tbe preaent
custom-house on the quay by the federal gov-
trnmeut in 1810, cannot be eonaidared aa ftf-
fwtiutf the oilatnal dMUoatloB.
It may be convenient (or tlie elty to liKva
the custom-house situated on this ground, and
it does not interrupt the public use.
Two or three grants to smali lota o( ground
within this common »cre made under the Spaa-
iah authoritiea; but under the present head of
inquiry, It ia unneceaaary to examine whether
these acta were not tlie exercise of arbitrary
power by the Spanish oOict'rs, and being In
derogation of veated righta, should not bebeld
as nullities.
If these titlea were given in the exercise of •
diacretion, atill they would not go to abrogate
the vested right, only to tbe extent ot the
titlea. But tnis question will be more par-
ticularly examined hereafter.
Suppose, on the common at Cincinnati, or oB
the vacant apace connected with Water Street
at Pittsburgh, it had been proved that the
State had constructed a cuatom- house or
temporary barroclcB, would such acta have been
considered aa disproving a dedication! Clear*
ly they would not; nor would grants for one
or two Iota within either space, unadviaedly
iaaued and in derogation of vested righta, bavt
been so considered.
The title to Fenn and hla heirs waa allodial,
and we have aeen 'that the Weatem ['TIT
Company was authorized to make euch titlea.
Like the heirs of Fenn, the Western Company
waa proprietor of a great extent of territory,
and the dedicationa were made under circum-
stances somewhat aimilar; but tbe m-oo( of
dedication of the common or quay at New Or-
leans, ia incomparably stronger than waa found
in the Pittsburgh case.
It appears that this quay has been greatly
enlarged by tbe alluvial form at i one of the
Mississippi River, and from this fact an argu-
ment is drawn against the right of use in the
city, at least to the extent asserted.
The history of the alluvial formation! 1^
the action of the waters of this mighty river
is interesting to the public, and atill more m
to the riparian proprietors.
The question la well settled at common lav
that the person whose land ia bounded by a
atream of water which changes Ita course giad*
ually by alluvial formations, shall still hold by
the same boundary, including the accumulated
aoil. No other rule can be applied on just
princtplea. Every proprietor whose land ie
thua bounded is subjert to loss by tbe aant
means which may add to his territory; and aa
he Is without remedy for his loss, in this waf,
he cannot be held accountable for his gain.
Thia rule la no less Just when applied to ptil>-
lie, than to private rights. The case under
consideration will illustrate the principle.
If tbe dedication of thja ground to public na*
be established by the principles of the eon-
mon law, ia it not of the highest importanoa
that the accumulations or the vacant apace
by alluvial formations should partake of tlte
aama character and be aubject to the aama wm
as tbe soil to which it beoomea unltedT
If this were not the ease, by tbe oontlnoal
deposits ot the Missisiippi, the city of New Or-
leana would, in the course of a few years, b«
cut off from the river, and ita prosperity im-
paired. If the city can elalm the original dedi-
cation to the river, it has all the righta aad
privileges of a riparian proprietor.
Bat there la amithai eoaaldaraUoa of araat
Tbc Mafob, ro., or Niw OnxAits t. Thk Uiin^ Sti.>w.
ni
celled to constmet at gnoit expenaet and keep
In repair, leveei, which retbt the waters of the
il*er and preserve the oitj from inundation.
If It were not for theia Isreai or embankmenta.
It ippearE from the facts proved that not oolj
the dtj of New Orleana but the country, to a
gre^t ertent, bordering on the tower Uiuiasip-
TIS*] pi, would be uninhabitable. 'These
work! resist the current of the river, eddiea are
formed, and the deposit* rapidly accumulate.
In thia way has the vacant space been great''
enlarged within twenty or thirty yean past.
This enlargement of the quay cannot defeat
or impair the rights of the city, and the quea-
tion only remains to be answered, whether
tbe facts In this ease, by the principles of the
eommon law, show a dedication of this va — *
space to public use.
No one can doubt that the answer must be
)d the affirmative.
The original dedication is proved by the
maps in evidence, and by a public use of more
than a century. These facts are conclusive.
The right of the city is sanctioned by time, and
established hj un contra verted facts.
So case of dedication to public use has been
Investigated by this court, where the right has
been so clearly eslabliBhed.
What effect the acts of the federal govem-
meat, and the acts of the corporation of the
eity may have upon this right, will be eoB-
sidered in another branch of thia ease.
A* tbe rights claimed by the dty had their
origin nnder the laws of France, and were en-
joyed for nearly forty year* under the laws of
Spain, it becomes necessary to examine those
laws, to ascertain the nature and extent of
these rights. On this sround the claims of tbe
dty have been earnestly and ably, if not confi-
dently, resisted In the argument. The laws of
FVance and of its colonies, it is admitted, pre-
vailed in Louisiana from its first settlement
until the 2Sth November, 1760, when they were
abrogated by OHeilly, Captain-General under
the King of Spain.
On tbe part of the defendants in error. It is
contended that the corporation of the city has
no title whatever to the soil or to the use of
Ihe preiaisea in guestion; and great reliance is
placed on a decision lately nude by the Su-
preme Court of Louisiana in the case of C.
G. De Armas and U. S. Cncnllu v. The Mayor,
Aldermen, etc., of the etty of New Orleans.
Two of the three learned judges who compose
that court lay down principles in their opin-
kma tn that ease which are inconsistent with
the right asserted by tbe city In this ease, and
It is insisted that this decision, which dis-
affirmed the right sst up by the elty, is con-
dnsfre on this conrt-
80 fw aa the present controversy may be
•apposed to arise under the laws of the United
States, or the Treaty of Cession, it is dear that
tbe dMfslon of the Louisiana court cannot be
emsldered as settling the question. In the ar-
gument on behalf of the government, the prin-
71**} dpie *)s laid down that by tbe laws of
WKnoB, a dty or town eonld not acquire a right
•r title to the soil of immovables, or to tbe
■■• of them, without letters patent from the
kteg. And Domat, with other authorities. Is
deelare, ai a primarr mle, that they should bs
established for the public good, and by order
or permission of the prince.
By the third section in the statement of
facts, it af^ars that towns in the French
colonies were never incorporated like those of
the United States; they are founded in virtue
of orders emanating from the government, or
from the minister of marine, and transmitted
to tbe governors of the colonies, and their ad-
ministration was confided to intendants, who
had authority to enact the necessary public
regulations.
It is insisted that no reasons are assigned
why the law of France wsa not complied with,
by Issuing a grant, if the dedication of tbis
common was in fact made. Thai the plan of
the town may be presumed to have been made,
and the ground in contest designated, as ap-
pears on the maps, for other purposes than
tboae supposed by the city authorities. That
the maps were for a long time lost sight of,
and oould not have been considered as evidence
to supply the place of a grant; had this been
the ease, they would have been preserved with
care. But the most conclusive argument
against this dedication Is, it is said, that until
the town was incorporated by letters patent
it was Incapable of taking by grant. And tbe
decision of the Supreme Court of Louisiana is
referred to as sustaining this doctrine.
Great respect is due to the opinions of the
two learned judges who made this decision,
and especially on questions arising under the
civil law, with the principles of which they
must be familiar. Still it would seem that a
ready answer may be found to at least some of
the objections stated by the counsel. In the
first place, the dedication of this common was
made by the Western Company, who bad pow-
er to make grants; and ignorance of their
rights, by the inhabitants of the city, or of
the necessary evidence to establish them, af-
fords no very satisfactory proof against the
faistence of those rights. And, if reasons can
be assigned why this ground was designated
on the plat as a quay, which show that such
Indorsement could not have been desipned as a
substitute for a grant, ^et, in the absence of
satisfactory reasons. Is it not fair to presume
in favor of a servitude which has been enjoyed
by the city for more than a century!
'Whether the retrocession of Louisi- ['720
ana, its jurisdiction, etc., by the Western Com-
pany to the King of France could affect tbe
rights previously granted by it, may be here-
after considered.
It is admitted that the power of the sov-
ereign over the streets of a city is limited. He
cannot alien them, nor deprive the inhabitants
of their use, because such use is essential to
the enjoyment of urban property. And a dis-
tinction is drawn, in this respect, between the
streets of a city and other grounds dedicated to
public use. The latter. It is contended. Is not
only under the supervision of the king as to
its use, but he may sell and convey It.
Now, it would seem, In reason, that the prin.
ciple is the same in both cases. The inhabit.
ants of a town cannot be deprived of their
streets, as the streets are essential to the en-
joyment of their property. In other words, by
ilosing the streets, the value of the buildings
Sonnai Oouia ia tbi Uriicd States.
■atlrelj deatrofed. And if ground dedicated
to public use, which adds to the beautj, the
health, the convenience and the value of town
propcrtj, be arbitrarily appropriated by the
lOTereign to other purpoBCa, is not the value of
the property which has been bought and sold
ia reference to it, greatly impaired! The value
may not be reduced to the same ruinoui extent
at it would be to cloae the Htreets, hut the
difference is only in the degree of the injury,
and not in the principle involved.
Domftt (liv. 1, title B, Bee. I, art. 1) Bayt
there are two kinds of things destined to the
common u^ of men, and of which everyone has
the enjoyment, llie first are those which are
M> by nature; as rivers, the sea and its shores.
The second, which derive their character from
the destination given them by man; such al
streets, highways, churches, marlcet-hotuea,
court-houses, and other public places; and It
belongs to those in whotn the power of making
laws tnd regi\Iations in such matters is vested,
fo select and mark out the places which are to
nerve the public for these different purposes."
But, it is said, if the dedication was made by
the king the citizens of New Orteana, or tha
public, did not aciquire a right paramount to
tits. And that having a right to regulate the
use, and the fee never having been conveyed by
him to the city, by grant or otherwise, he must
of course retain the power of disposing of the
property.
Tlie right of the king to this property is
compared to the richt of a city which is vested
with the fee and the use, and as in such case
the corporation may dispose of the property
Tit*] dedicated with the sanction 'of the
sovereign power, the sovereign, it is contended,
having the right of property and the power to
rcgiilate the use, may alien.
And it is said that this supervision of ths
use by the king was a doctrine peculiarly ap-
Rlicable to I.c.isiana and the city of New Or-
ana, where the changes are so frequent by
the continual formations on the shores of the
Mississippi, in addition to increase of popu-
lation and business, which often require alter-
ations in the streets and other public placet.
Though certain places may be dedicated to
piibMc purposes by l.he supreme power, and
may be said to be withdrawn from commerce,
still it is insisted where no grant has been
made, and private rights have not become vest-
ed In the property, it ia not withdrawn from
the sovereign power.
This arsument goes upon the fact that the
tltU to the quay remained in tho King of
France, which is a controverted point.
That the king, under the law of nations, was
entitled to the right of soil of Louisiana, is not
contested. The same rii^ts belonged to the
sovereign of France, in this respect, aa baa been
accorded to other European sovereigns who
made discoveries on this continent; but the
conclusion which is drawn from this, that, as
no grant was given, the king had a right to
alien the ground in contest, the same as any
other part of IlKiuisIana, is not admilted.
This argument in behalf of the power of the
King of France over the common. Is founded
upon the supposition that the cession of the
country to the king by the Western Company |
destroyed the rishtB which had become vested i
under itt and also, that •• no mat fo« tbs
land in oootMt ha* been proved, none eu bt
presumed.
The doctrine of presumption Is as fnllj rec-
ognised in the dvil as it is in the common law.
It is a principle which no enlightened tri-
bunal, in the aearch of truth, and io applying
facts to human affairs, can disregard.
The retrocession of Louisiana to Prance bj
the Western Company did not abrogate tlM
rights which had been acquired under it. All
the grants to individuals made by the com-
pany were respected; and there is no act by the
French government, from the foundation of the
city to the transfer of the country in 17*9 to
Spain, which shows that this dedication vras
not as much respected and sanctioned bj the
king as were the grants to private citicena.
Does not this long acquiescenoe of the mon»n^
and enjoyment of the property by the city, af-
ford some evidence of rigfatf But In addition
to this consideration, *it appears in evi- [*?tl
dence (bat from the time tlie plan of the city
was adopted until the country was ceded to
Spain, numerous transfera of property were
made, in which the property is described M
being bounded by this quay; and also, many
official transactions of public officers, in whi<&
the quay is recognized and referred to. Thia
shows in what light this vacant space was eon
sidered by the public, for nearly fifty years
after the dedication was made, and it ia not
probable that this subject could have been
wholly overlooked by the king. The plan of
the city containing the designation of thta
quay, was published b? Charlevoix in his His-
toire de la Nouvelle France, and perhaps bf
Voltaire. It ia true that New Orleans con-
tained at this time a very limited population,
but it is matter of history that not many yean
after the foundation of the city was laid, the
most splendid scheme of commercial enterprise,
connected with banking operations, was pro-
jected in France, in reference to Louisiana. 8a
excited did the public mind become on this sub-
ject, and so generally was the public attention
directed to it, that there is little probability
the dedication of this common could havs
escaped the notice of the King of France. It
was not, probably, deemed too large for the ac-
commodation of a city which was to become
the emporium of a country of aueh vast re-
sources.
The public use of this common for so ^reat
a number of years, and the general recognition
of it from the time It was dedicated, in numer-
ous private and otllcial transactions, and tha
acquteseenee of the French king, offered no
unsatisfactory evidence of right. If a grant
from the king were necessary to conlirm the
claim of the city, might it not I>e presumed
under such circumstances T
But Buppoee the dedication had not 1
It cannot be insisted that the dedicatitm tt
this property to public use, whether the title
to the thing dedicated became veated tn tha
lity or its use only, could withdraw It from
Tb> Uatcs, no, at Nnr OiLBAira t. Tmb UHtnD Statis.
pAnXm prapartj. Bnt fn no point of vlaw b
rtji of Paris uid the public groundB of other
iM In the kioBdom, such u pannlttiiig huild-
11S*] ingB to 1m eaoBtructed 'thereon and
t^ulating the manner and extent of auch oe-
npaaey, is admitted; bat thii power seeme t»
have been in the nature of a police regulation,
asd was eo axerciaed aa waa not incompatible
with the public uae of the grounda. This au-
thority, however, does not prove that the fee
•r the right of use was not in the public, or
that tha king had power to convey the lands.
Douat aafs, "rivers, their banks, highwajs,
are public places which are for the use of all,
Mcording to the lawa of the countrj. The;
hehmg to no individual, and are out of coni-
neree; the liing only regulatea the use of
them." And agaiD, (in vol. 2, lib, 1, tit. B, see.
S, 3 and 16): "we class public places, as ant
ol eommerce, those which are for the use of
the inhabitants of a city, or other place, and
la which no individual can Itave any right of
property, as the walls, ditchen or gates ot a
•ity, and public square*."
In Domat (b. 1, tit. 8, sec Z, art. 10) it is
said, "\t it should happen that some buildings
on a public square should be constructed, they
wi^t either be demolished If they should prove
any way hurtful or inconvenient, or be suffered
to stand upon condition of tlieir paying a rent,
or making some other amends to the public, if
fnuBd to be more advantageous to let them re- 1
HMm, either because they would be an orna-
ment to a market place, or other public place, i
•r became of the rent they would yield, or
other advanta^ that might be made of them."
Judge Martm, who dissented from the opin-
ion of the Superior Court in the case above
dted, says, "of public [ilaoea, the public may
elaim the use by exhibiting evidence of a dedi-
oation to its profit, fay the sovereign or pater
familial, without any letters patent, grant or
deetL"
And "of places which are alleged to be the |
KEcIusfve property of the town or city, or of ,
which the exclusive right to nse is claimed, let- j
term patent, a grant, or deed, must i>e pro- j
The power of apitropriating private property ,
to public purposes is an incident of sovereigu-
ty. And it may be, that by the exercise of
tUa power, under extraordinary emergencies,
property which had been dedicated to public
■M, bnt the enjoyment of which was prin-
dMlIy limited to a local community, might be
taken for higher and national purposes, and
diapoMd of on the same principles which aub-
J*et private property to be taken.
b a Boverament of limited and specified
ptftrera uke ours, each a power can be ezer-
dMd only in the mode provided by law; bnt in
TS4*] an 'arbitrary government, the will of
tbo Bovereign supersedes all rule on the subjeoL
But it most b* admitted that while the
Tnneh laws and naagea may show the nature
aaid oxtsot of the rMit of the public to this
aMnmon, as It was originated and regulated by
them for nearly half a century, yet it is to the
flpwsrish laws and nsagsa we must ehiefly look
ta Jatsfining tbJe heaA of the oontroversy,
Wmm tha AMfatkn tti tb* Fnaeh Uw* ia
by O'Reilly In 1789, until the eeoH-
try came into the possession of the United
States, the laws of Spain acted upon and gov-
erned the rights in controversy. The retroces-
sion of the country from Spain to France, and
the cession of France to the United States fol-
lowed eo soon afterwards, that these trans-
fers, it is sdniitted, caused no interruption to
the laws of Spain.
Louisiana was coded by France to Spain
without any abridgement of the vested rights
to property enjoyed by private individuals or
communities. The rights of the city of New
Orleans were in no respect affected by this
cession, unless they have been affected by the
action of the Spanish laws and we will now ex-
amine this point.
The fundamental laws of the Spanish nation,
and which are understood to be alike binding
on the king and the people, are found In tka
Partidas and the Becopilacion.
The nth law, tit. 20, of Partida S, contains
the following; "The things which belong
separately or (severally) to the commons oi
cities or towns are fountains of water, the
places where the fairs or markets are held, or
where the city council meet, the alluvions or
sand deposits on the l>aaks of rivera, and all
the other uncultivated lands immediately con-
tiguous to the said cities, and the race grounds,
aiM the forests and pastures, and all such other
places which are established for the common
Tbe 23d law, tit. 32, of Partida, 3, ts as f«t-
lows: "No one ought to erect a house or
other building or works in the squares nor on
the commons (exidos), nor in the roads which
belong to the commons of cities, towns or
other places: fo<' ** these things are left for
tbe advantage or convenience and the common
use of all, no one ought to take possession of
them, or do, or erect any works there for his
own particular benefit; and if anyone contra-
venes this law, that which he does there must
be pulled down and destroyed; and if the
corporation of the place where the works are
constructed choose to retain thetn for their
own use, and not pull them down, they may
*do so, and they make nse of the reve- {*79S
nue they derive therefrom in tbe same manner
as any other revenues they possess; and we
moreover say that no man who bos erected
works in any of the above-mentioned places
con or shall acquire a right thereto by pra-
In the Becopilacion (law 1, book 4, tit. 15) Is
the following; "Whereas, in our kingdoms,
persons hold and possess some cities, towns,
villages, and civil and criminal jurisdiction,
without any title from us, or from the icings
our predecessors; and it has been doubted
whetner the same could be acquired against us
and our crown by any time, we do ordain aM
command that immemorial possession, proved
in the manner, and under the conditions r«-
quired by the law of Toro, which is law the
1st, tit. T, book6,of thisRecopilacion, be asffl-
cient to aoquire against us and our succeason,
any eitiea, towns, villages, use or Jurisdiction,
civil or criminal, and thing or part thereof an-
nexed or belonging thereto. {*rovided, that
the time of said prescriptiott be not interrupttd
by us, or by our command, naturally or dviliy.
Bnt the aunrems, civil or criminal jurisdietioa
SupBEMK Ooim or thk Ukitid Stabs.
quired or prescribed by the said time or anj
other; and likewise what the taws aay cannot
ba acquired b^ time, must be understood of the
., .. 1 fallowing law: "We do ordain that
tbe mayorszKO ["mayorat" of the French,
"entail" in Engliih] may be proved by the
instrument of its inatitution, together with the
written permiBsion of the king who anthorixed
it) provided the said Instruiaents are authenti-
cated, or by witnesBGB, who tentify in the form
required by Ian, to the tenor of the lame, and
likewisa by immemorial custom proved, eatab-
lialiing that the former posteBSora have held
and poaaessed the property or mayorazgo) that
is to say, that the eldest legitimate aons and
their descendants used to inherit said property,
as such, when the holder thereof left other son
or sons, without leaving them anything equiva-
lent to what those who suci:eeded to the may-
orazyo received; provided the witnesses be of
good reputation, and declare that they have
•een it thus for forty years, and heard their
eeniora say that they always saw it, and never
heard the contrary said, and that it is a matter
726*] of public voice, 'notoriety and opin-
ion, among the inhabitants oi residents of the
place."
In the Novissima Recopilacion (book T, tit.
16, law 1) is the following: "Our pleasure and
will is to preserve their rights, rents and prop-
erty to our cities, towns and placea, and not to
make any gift of anything of them; wherefore
tie command that the gift or gifts which we
may make, or any part of them, to any person
whatsoever, are not valid."
A faithful observance of these laws would
have preserved the rights of the city, as to the
comtDon, free from invasion. No law was cited
In the argument which showed the power of
the King of Spain to alienate land which had
be«n dedicated to the public use; and it is
clear that the exercise of such a power would
have violated the public law, which is under-
stood to have limited the exercise of the sover-
eign power in this respect.
The King of Spain, tike the King of France,
bad the power to give permission to construct
buildiijgs on grounds dedicated to public use
without injury to the public rights; but this
doe* not show that either sovereign had the
power to slipn such lands.
In the 3d Partida (law 3, tit. 32} the aover-
eign waa authorized to grant permission to
build on public plaoea. And tbe comment of
Rodriguez (16 and 16) la that the building
must be so constructed that no one should be
injured In bis right thereby; berause the privi-
legea granted by princes are understood to be
panted without prejudice to third persons.
.On the 22d February, 1770, O-Eeilly, Gov-
emor, etc., of Louisiana, published an ordi-
^Dce, in conformity to law, "to dealgnate city
eroperties and rents belonging to tha city of
ev Orleans;" and among other r^ulations,
'^aix dollars were required to be paid bj wwb
hcmi of tbe tonnage of two hundred teas, st^.,
far rifiht of aneharaok •atablisbed tad dasUasd
to tha keeping In repair of Um la*M or dykt,
which does contain tna river wlthlH ito liinib,
in tbe wbole front of the city, etc' Tbia ng-
ulation was to eontinuo during the pleosnra el
hia majestj.
As power was given to tbe King of Spain hj
law to grant permission to build on publia
placea, it would seem to follow that auch placet
were not only withdrawn from eommeroa, bnt
that the king could not alien them. For if be
had the power to do this, in as unHmited a
manner aa over tbe crown lands, it would in-
clude tbe exardae of every minor autborit;
over tbem. If he could aell and convey
'the lands dedicated to publie nao, I'l'T
surety he might, without any authorUy of
law, grant permlasion to build on such lands.
But, aa it appears from the evidence In tide
case that pernuasien was not only given to eon-
struct buildings on this common, but that a
part of it wa* granted In fee, it ia oontendtd
that this ia evidence of the king'a power not
only to regulate the uae of thia oomnKW, but
to convey It in fee. And tbe leading ease of
Arredondo, 6 Peteia, 6B1, la referred to aa aaac-
tioning the principle that a giuit, lasued by a
Spauian functionary, is not only evidence at
title, but also that the officer had tbe pomr
to issue it.
In that case this court did hold, and tha sbbi
principle haa been sanctioned In numenras
cases since, that a grant should be oonaidered
as prima facie evidence that it was rightfully
issued; but that It might be impeached by any-
one who set up an adverae claim.
We will examine the grants made, nadir
Bpanish authority, to an^ part of this ei
and other acts of jurisdiction over it ei
by the government of Spain, which have beM
proved by the evidence.
On the 14th of June, 1792, Carondelet, Gov-
ernor, intendant, etc., granted to Liotaud a lot
of ground situated within this commoo; and
in the grant he saya, "making use of the poww
which tbe king has vested in us, we grant fa
his royal name," etc.
And on the 10th August, tT9S, another giant
was made of a lot in the common to Uentdn-
ger, by the same governor.
In 1793, Arnaud, Magnon, a master caipentar,
represented, by petition to the governor and t>-
teudaot -general, that he had Imilt a barge for
tbe public, and aa a compensation therefor,
be asked eighteen or nineteen feet on one aids
of his house to enlarge it, the same being Tsrf
small, and that the same was granted to him.
but that he had no inatrumcnt of writing as
evidence of the same, and which he solieita.
And he also represented to the intendant-
genaral that hia dwelling-house having been
included in the conflagration of 1788, that
Eiovemor Miro permitted him to conatmet a
small houaa near the river, 'Um the Inner idda
of Its dyke," and in conset^uence of this mis-
fortune, and hia having built a barge, eta., a
amall portion of land of eigbtaen to nlneteM
feet adjoining his house, had been granted lo
him. That he waa afterwards allowM to baUd
a ahed (or the convenience of ship bniMin&
etc., end be prays that a titln nftf M gnntai
to him for tbe bt.
'This petition waa submlttad to the r*Tlt
Attomty-Ctananl, wto raportod that it ay-
Thx Matoi, no., OF Hbw OsLButa t, Tbc Uitrno Statu.
r.frt to him "It ironid bo an aot of injDiti__
refnae the petitioner the eorreiponding titles
of property that he •olicjta;" for, "although
the council of this city might have iome objec-
tloo, on account of the laid lot being Bituated
within it* precincts, thii oppoiitlon may be eaa-
ily OTercome by the cert&inty that if Magnon
did Dot oocupy the aald lot, it would be n
to the public."
It does not appear that thia claim wu ever
nrried into grant by the Spanish authorities.
In IT83, an the petition of Etienne FJanche,
who represented himself to be a carpenter and
ealker, and having much work whicn he could
not do in his yard, etc., he asked permissioD
bnild a abed in front of hit bouse, which w
not to be closed, etc. This leave was giv'
and he and those claiming under him occupied
the ground for many years, but no grant was
ever obtAJned from the Spanish governor for
the lot
Catharine Goniales, widoi* of Bertrand, i
np a claim; and it appears that on the petiti
ol her former husband be was permitted to
bnild his house on the common, which liad
bllen into decay, which was allowed by the
governor, etc. But no grant was ever issued by
the Spanish authority for this lot.
These permiGsiona to build were given by the
eovemor and intendant under the law, which
haa been cited, that authorized the sovereign to
grant permission to construct buildings on the
public grounda.
This wai not considered Inconsistent with
the public use, as the power was not to be sier-
eioed to the prejudice of third parties.
The three lota for which grrtnta were issued.
It must be admitted, under the circumstaneea,
ia such a final disposition of the property as is
wholly incompatible with the public right. For
the fee of these lots waa not only granted, but
This transfer of the fee. It is contended, af-
fords concluaive evidence that the title to the
eommon remained in the king, and having, in
addition to this, the power to regulate its use,
be could alien it at pleasure.
If this power was possessed by the king, why
w*s the authority given in the law which has
been stated, to grant permission to construct
buildings on public groundsT This power, as
Tl»*] appears from *tbe record, was eier-
elaed over the common in controversy, and only
in three initancea were lots granted absolutely.
In tue ease of The Mayor, etc., of New Orleans
V. BermudeE, decided by the Supreme Court of
Louiaiana (3 Uartin, 306), the court aay "bow-
aver contradictory these expresBioas may ap-
pear to be, tue worst conclusion which can be
drawn therefrom against the city of New Or-
le*iia it. that they had not that kind of posses-
■ioD which is the consequence of an absolute
right of ownership. Yet the sovereign having
never thought fit to exercise any further right
over these commons, and the claim of the city
to then having been recognized and confirmed
by the Bucecssor of that sovereign, the inhabit-
ants of New Orleans must hs considered as hav-
ing nerer ceased to be tbe rightful possesaora of
tliAt land," ete.
And in tha nm* boi* (SOS) the eoort taj,
• I*, ed.
"in the year 17B5, the Baron Carondelet, then
Uovemor of Louisiana for the King of Spain,
Banted to Henry Mentxinger, tlie appellee, a
I of ground, situated in the city of New Or-
leans, close to the levee, etc.
"But the appellants contend that the spot on
which it is located is a part of the public high-
way, and, therefore, could not have been law-
fully granted for private use, even by the king
himself.
"That public places, such aa roads and
streets, cannot be appropriated to private usee,
is one of those principles of public law which
required not the support of much argutnenL
Nor Is there any doubt that if, by a stretch of
arbitrary power, the preceding government bad
given away such pUces to individuals, such
grants might be declared void.
"But is this grant located in a street, or on
the public roadt On this important question
of fact, the evidence produced by the appellant
is 'by no means satisfactory.' They show that
according to general usage in this country, the
public road in front of the river is close to the
levee. But could there be no derogation from
that usage T Was that uauge observed within
the city of New Orleans T Does not the con-
venience of placing markets and other public
places as neiir the water as possible, as it is
recommended by the law of the ladies, make it
necessary to deviate from such usages in ciliest
"General usage, however, is the only ground
on which the appellants rest their pretensions.
No plan of the city has been exhibited to sliovr
that the lot of the appellee is located upon a
place which hnd been reserved for public use;
nu testimony has been adduced to prove that
this spot is part of the ground iHiil out for the
•public rond. We are called upon to ['TSO
declare this grant void merely because the gen-
eral usage of the country is to place the road
From this opinion it would seem that if there
hnd been satisfactory proof before the court
that the ground in controversy had been ap-
propriated to public use, tbe deciBion, instead
of being favorable to tbe grantee, would have
'len against him.
There can be no difference in principle be-
tween ground dedicated as a quay to publie
!, and the streets and alleys of a town; and
to tbe streets, it may be asked whether the
king could rightfully have granted them. This
will not be pretended by anyone. And it is
believed that the public right to a common ia
ei|ually bcjond the power of the sovereign to
grant, unless he dispose of it under the power
bo appropriate property to the national use, and
then eompensatlon must be paid.
The grant to Liotaud was also contested by
the city authorities, but It was decided against
them on a ground which did not embrace the
merits of the claim, on tbe part of the city, as
-"iw presented.
In speaking of this case, hir. Justice Hartin,
his able and learned opinion in the ease of
De Armas and Cucullu v. The Mayor of New
Orleans, etc., says, "in Liotaud's case, the then
SlaintitTs labored under tbe inability to eatab-
sh the appropriation to the public use, bv titt
founder of the cify of New Orleans, of the
•pace which eeparatei the first row ol houaea
from the Uisaiisippi.
Bunuu Coun or tait Uritid Sf ati
TIm appcllanta itated their ablUtj to catab-
Ifth that, inunedUtelj ktter th« ^ant, mur-
mitn had been excited, and the Innlienabilitf of
taj part of the ipaee having been tenaciously
iniUted on, the governor liad revoked hia grant,
and indannifled the grantee by the eonceanion
of the lot on one of the street* i but the court
daeided the tcatimonj waa inadmJMible, and the
wltneaaes were Dot nearil."
"Uagnon," the same judge remarka, "waa
a ahlp builder, and the ship jard was between
the levee and the water. Tlie governor, deem-
ing the builder'i residence near it necesaai; to
the public service, allotted him a space of
ground to live on near the yard, but on the op-
posite aide of the levee. The question arising
out of this grant wa* not litigated, the city
agreeing to compensate Magnon for the relin-
r'lhment of his claim." This lot, however,
ugh a part of the ground alleged to have
been dedicated to public use, is not within the
flommott or quay contested in this ease.
And it appears from the above opinion that
to provent any other titles being made for any
part of the oomraon, certain proceedings were
7S1*] 'instituted by the Attorney-General, at
Uie instance of the city authorities, which pre-
vented the emanation of any other grants for
any part of the quay, until the country was
ceded to the United SUtes.
From a careful examination of the Jurisdic-
tion exercised over this common by the govern-
ments of France and Spain, and the laws which
regulated this description of property in both
eountries, the conclusion seems not to be au-
thorized that it was considered aa a part of the
public domain or crown lands, which the king
eould aell and convey. This power was nol
exercised by the King of France and the eier-
eiae of the power by the Spanish governor in
the instances stated was in violation of the laws
of Spain, and equallv against its usages.
The land, having been dedicated to public
uae, was withdrawn from commcTce, and so
long as it continued to be thus used, eonid not
become the property of any individual. So
careful was the King of Spain to guard against
the alienation uf property which bad been ded-
icated to public use, that in a taw cited, all
such oonveyaneei are declared to be void.
It would be a dangerous doctrine to consider
the issuing of a grant as conclusive evidence of
right in the power which issued it. On its face
it is eonciusive, and cannot be controverted, but
if the thing granted waa not in the grantor, no
right passes to the grantee. A grant baa been
m^ueatly issued by the United States for Isnd
which bad been previously granted, and the
•aeond grant has been held to be inoperative.
And in a case recently decided by this court,
where the government had granted land in the
State of Ohio as land belongiDg to the United
State*, which waa found to be within the Vlr-
rinla reservation In that State, to satisfy eer-
iain miliUry cUima, it was held that the title
dtd not pass under the grant. If, then, the
eannNn in question had ^a dedicated to pub-
lie UM so as to withdraw it from oonunerce,
and ao treat the title In the public aa to pre-
' MTve it from alienation by the king, the granta
baved for tb* lota sUted cannot affect the
right of the pnblia, %t least bnond the Umiu
•TtbM* granta.
That both the kings of France ud Spahi
could exercise a certain jurisdiction over tfaia
common, and other places similarlv situated,
has been stated; but this was a police regula-
tion, and was rightfully exercised in such a
maiLner aa not to encroach upon the public uae.
This seems to be the result to which a careful
examination of the laws and usage* of both
eountries must lead us.
*We come now to examine, under [*7SS
the third head, the interest of the United
States in the property claimed by the city,
and their jurisdiction over it.
The first article of the Treaty of Cession Is as
follows: "Whereas, by the article tfae third
of the treaty, concluded at St Ildefonso the lat
October, 1600, between the First Consul of the
French Republic and Hia Catholic Majesty, it
Has agreed aa follows: His Catholic Majes^
promises and engages, on Us part, to retroceib
to the French republic, six months after the
full and entire execution of the conditions and
stipulations herein relative to His Royal High-
ness the Dulce of Fanna, the Colony or Prov-
ince of Louisiana, with the same extent that it
now haa in the hands of Spain, and that it had
ivhen France posspssed it, and such as it should
be after the treaties subspquentlv entered into
between Spain and other States.*' And In be-
half of the French Republic, the First Consul
ceded, "forever and in full sovereignty, the
said territory, with all its rights and appurte-
nances, aa fully and in the same manner aa
they have been acquired by the French repub-
lic, etc.
And in the second article it is declared that
in the cession "are included the adjacent is-
lands belonging to Louisiana, all public Iota
and squares, vacant lands, and all pnblk
buildings," etc.
Under this treaty Louisiana was ceded to
the United States in full sovereigntr, and in
every reapect, with alt its rights and appurte-
nances, as it was held by the republic of
France, and aa ft waa received by that repubtie
from Spain. And it is insisted that the aame
rights of jurisdiction and property which ap-
pertained to the sovereign of Spain, under its
laws and rt^ulations, were, by the treaty, trans-
ferred to tbe United States; and that whether
this right extends to the fee of the property in
contest or the regulation of its use, it is eon-
tended that this court must take juriadictioB
□f the case, and restrain the ci^ antborities
from selling any part of it.
To show that the federal government has
considered this common a« a part of tbe puhlit
domain, under the treaty, various taws of Con-
gress have been referred to, and olficial pro-
ceedings by the agents of the government, !■
reference to it; and also it is shown that tb*
insisted, have aclcnowledged the right of prop-
erty to be in the United States, aa aaserted ui
their behalf by the district attorney of Looisi-
ana. We will refer more particularly to tbcas
'On the 88th March, 1804, Congress [•7X1
J 1,^^ ^gj erecting Louisiana into two
Thk If atob. Etc., at Nnr Oblbaiii t. Tbb UnnD Stum.
m
tk* territoriw wlad b; Fianea, the titia of
which wu, Kt th« date ot the trMty "' St. H-
dcfoneo. In the crotra, etc., of Spain, were de-
■tared to be null and void." Provided, nothing
In the leeticm wm to make void any bona fide
grant, a^Terablj to the laws, uiagea, etc., of
the Bpaoish goremtnent. Ad Act entitled
'An Aet for ascertaining and adjuating the
titlea and claima to land, within the Territoiy
of OrleMia and the Diatrict of Louisiana," waa
paaaed on the 2d March, 1805. This aot, after
■pedfjrlBg what titlea under the Spanish
eminent should be held valid, and requiring
Um evidEneu of title to be exhibited, etc., au-
thorited the appointmi>nt of a reglater, who,
with two eommiaaionera to be appointed, were
to eonstitute a board for the deciilon of land
claima in the territory, etc.; and their report
waa required ta be laid before Congress, etc.
And by an Act of the 3d March, 1807, it
waa provided "that the alaim of the eitr of
New Orleans to the common adjacent to aaid
dty, and within six hundred yards of the torti-
flcations of the same, be, and the same is here-
to reoognized and confirmed ; provided that
the corporation shall, within alx months after
passing this act, relinquish and release any
claim thej maj have to sneh commoni beji '
the distance of six hundred yards atoresal
Other acta were passed in relation to land
elaims in the district, which it cannot be necea-
•ary to notice.
Amaud Masnon, whose claim has be«n be.
fore referred to, applied to the commiasionera
under the above act to report on land titles,
etc., who reported, "we know of no law or
ntage of the Spanish government respecting
elaims similarly situated, but think it highly
probable that had the claimant applied, lie
wonld have obtained a grant tor It, as a grant
waa made to a lot of ground adjoining htm
under no higher pretenaions. Nor does tbj
appeSir to come within any of the provisions (
the laws of the United States, although there
have been ten consecutive years' posBession;
the land has not been inhabited or cultivated.
This part of the claim we do not feel ouraelvee
authorised to decide on, but are of opinion
that, in justice, the claim ought to be cor.
And OS the claim of John J. Cheese, the
eoDiinissi oners report that "they did not feel
antltorized to make any decision on the claim,
T>4*] 'but they thought it would be more
sa act of Justice than generosity if the govem-
Bent should confirm it."
A similar report waa made on the claim of
Catherine Gonzales and Peter Urtubuiae.
Heir elaims were for lots of ground within
the conunon, and they have been confirmed by
act* of Congress and patents have been issued
to the elaimanta.
Th« daim of the dty to the commons was
preeented by P. Deibiguy and L. S. Kerr, who
were duly authorised bo present it In behalf of
tbe eity. And the commissioners reported that
niM claim wai in part settled by the acts of
Congreas of 1807 and 1811, which confirm to
the oorporatioB six hundred yards from the
fortillcAtions of the city, but which are, never-
theloM, embraced by the claim aforesaid. That
tbcy bad in vaia aeardied in the documents to
whteh they were referred for pnwf of erea •
aliadow of title to thla land. That there was nn
Bvidance of it ever having been granted or eon-
sidered as belonging to uw city, either by the
French or Spanish govemmenL The board,
therefore, rejected the claim."
On the 3d ol April, 1812, Oongreas "paased
i poBsesaion of a
an Act g
of New Orleans ths u
in the aaid eity."
By this act the city "was authorised to nae.
possess and oeoupj the same, for the purpose
of erecting, or causing to be erected and kept
In operation a steam engine or engines for
conveying wster into the said city, and all
buildings necessary to the said purpose, pro-
vided, that if the apaoe of ground shall not be
. occupied tor the said purpose within the term
of three years from end after the passing of
this act, or shall, at any time thereafter caass
to be so occupied for the term of three yean,
tfao right and claim of the United States there-
to shul rMnain unimpaired."
And by an Act ot the 30th ot Harch, 1822,
"the oorporation of the city of New Orleans
was authorized to appropriate so much of the
lot of ground on which fort St. Charles for-
merly stood as may be uecessiiry for continuing
Esplanade Street to the Mississippi Kiver, ana
alao to sell and convey that portion of the aaid
ground which Ilea bMow said street," etc
By the Act of the ZOtb of April, 1818. Con-
greaa authorized the President to abandon the
use of the navy arsenal, military hospital and
; barracks in the city of New Orleans; and, after
laying off the ground into lots, to sell them at
public sale, etc. And he was authorized to
cause the Fort St. Charles to be demolished,
and the navy yard In the 'city to be [*TSK
discontinued, and the lot of ground on which
the fort stood was appropriated to the use of
a public square, to be improved aa the corpora-
tion of the ei^ ehould think proper. These
acts related to lots within the oonim<»i of the
city, though but few of them are included in
that part of the ground respecting which this
suit was commenced.
These olficial acts of the federal government,
by legislation and otherwise, respecting the
common claimed by the city, and some ol
which were induced by the special application
of the oorporation, afford strong evidence, it is
contended, not only of the right of the United
States to the property in question, but that
auch right was fully recognized by the corpora.
It must be admitted that acveral of these acta
are unequivocal in their character, and do show,
OS contended by the Attorney-General, an ad-
miaaion on the part of the eity not only that
Congress had a right to legislate on this sub-
ject, but also to dispoae of certain parts of
the common in fee. And theae acts, it unex-
plained, do strengthen the argument against
the claim set up by the city.
It Is a principle sanctioned as well by law aa
by the Immutable principles of justice that
where an individual acta in ignorance of his
rights, he shall not be prejudiced by such acta.
And this rule applies at least with as much
force to the acta of corporate bodies as to those
□f individuals. We will, therefore, inquire, as
we are bound to do, whether, under the dr-
cumstanees of this eaae, the octo ol the city oaa
«*1
rw
SonsuB Court or t
)uaU; b« Mosldered M prcjudfcfng th« eUlm
•rliich Oiey uiert.
In the nr»t plt.ee, the fact that when we ob-
taLfned poHBPBsion of LouiBiana, the citj of New
Orleana was compoaed of citiwns who, in the[r
Ungukge, btibiti ot thinking and acting, were
Klmoat ai dissimilar fram other parts of the
United BUtei aa if they had inhabiUd a dif-
ferent continent, ii of great importance; and,
abovfl alt, they were unacquainted with the
nature of ant government in a great de-
gree, and the principleB of our jurisprudence.
They may be auppoaed to have been ac-
quainted with the civil law, and to some extent,
at least, with their rights as recognized and
aanctioaed by the taws and usages of Spain.
It ia well IcnowD that the policy of Spain
in regard to a disposition of her public do-
main, ia entirely different to that wliich has
been adopted by the United SUtes. We dia-
poM of our public lands by sale, but Spain
haa uniformly bestowed her dAmiiin in reward
718"] for •meritorious services, or to eneniir
age some enterprise deemed of public utility.
That a community, composed, as ivfre'tli>-
citizens of New Orleans, almost entirely of
foreigners, and under the circumstanp>'« ivhic-li
existed, should have mistaken their rij^lits. in
not extraordinary. Indeed, it wonid have Wen
ft matter of aurprise if they hnd. under ili
new system, understood the extent of l!i-ir
claim. They did exhibit their claim to lii"
eommi SB loners, who rejected it. And this. i«i
doubt, induced the corporation to make llie ap
plications to Congress which have been no
But In addition to the con«id<?ration that the
city authorities, probably, acted in Ignor
of their rights, it may be safely assumeci that
tbey had not the power, by the acta referred
to, to devest tbe city of a vested interest in
this common.
We come now to inquire whether any In-
terest in the vacant spnce in contest paaapd to
the UniUd SUtes under the Treaty of Cession.
In the second article of the treaty, "all
public lots and squares, vacant lands, and all
public buildings, fortifications, barracks, and
other edifices, which are not private property.'
were eeded. And it is contended, as the lan-
guage of this article clearly includes the
ground in controversy, whether it be considered
a public square or vacant land, the entire
right of the sovereign of Spain pasaed to the
United 8UtM.
The govemment ot the United States, aa was
well observed in the argument, U one of limited
powers. It can exercise authority over no sub-
jects except those which bave been delegated
to It. Congress cannot, by legislation, enlarge
the federal jurisdiction, nor can it be enlarged
under the treaty-making power.
If the common in contest, under the Spanish
crown, formed « part of the public domain or
the crown lands, and the king had power to
alien tt as other lands, there can be no doubt
tbat it passed under the treaty to the United
States, and they have a right to dispose of it
the same as other public Janda. But if the
Kiag of Spain held the land in trust for the
oae ot the city, or only posseMed a limited
Jurisdiction over it, principally, if not exclu-
■Ivelr, for police purposes, was this right passed
to tlM United SUtw ondar the treaW.
•ta
t Unitco St ATM. IW
That this rommon, having been dadkatri
to public use, waa withdrawn from eommsra,
and from the power ot the king rightfully t«
alien it. has already been sbown ; and also,thst
he had a limited power over it for eertsln pdT-
poses. Can the federal government 'ei- [•III
ercise this powerT If it can, Uiis court bsi
the power to interpose an injunetfott or ii'
terdict to the aale of any part ot the conuan
by the city, if they shall think that Um licll
authorize such an interposition.
It is insisted that the federal govenuient
may exercise this authority under the power to
It is very clear that aa the treaty cannot glTt
this power to the federal KOvemment, we nwt
look for it in the Constitution, and that tks
same power must authorize a similar exetti**
of jurisdiction over every other quay in tk
United States. A statement of the caae ii t
sulHcient refutation ot the argument.
Special provision is made in tbe Constitntioo
lor the cession ot juriadiction from the Stat^
nvcT places where tt.e federal goTemmeat sktll
"stablish forta or other military worka. And
it is only in these places, or in the territolH
f the United States, where It can exenb* t
<;enenil jurisdiction.
The State of Louisiana wu admitted into tbs
Inion on the same footing as tbe original
Stales. Her rights of sovereignty are tlx
tame, and by consequence no juriadiction of
Ihe federal government, either for purposes ot
nliee or otWrwise, can be exercised over tliis
ptiblie ground, which is not conimon to Um
United SUtes. It belongs to tbe local author
ity to eolorce the trust, and prevent what tt^
Pball denm a violation of it by the ci^ a»
thorlUsa
AH powart which properly appertain to sov-
ereignty, which have not been delegated to the
Eerjeral govermuent, beloTig to the SUtea ui
the people.
It is enough for this court, in deciding tkt
matter before them, to say that in their opii-
ion, neither the fee of the land in controveifl
iiur the right to regulate the use, is vested ia
the federal government, and consequently, that
the decree of the District Court must be i*-
versed, and the cause remanded with diroctioM
it is n
■ the bill.
3 not decide M
necessary, we d
the right of ths corporation t
of the common, or to appropriate i
other manner than aa originally designated.
II any pait
■ it in aay
This cause came on to be heard on the tran-
script of the record from the District Court
of the United SUtes for tbe Eastern District ot
Louisiana, and was argued by counsel ; 01
consideration whereof, it is 'ordered, ["TM
adjudged and decreed by this court, that tk«
decree of the said District Court in this cause
be, and the same ia hereby reversed snd an-
nulled. And this court, proceeding to render
such decree as the said District Court ougbt ta
have rendered in tbe premises, doth order, ad-
judge and decree, that the bill of the com-
Elainant in this cause be, and the sams is here-
y remanded to the said District Court ot tbs
United States tor the Eastern District ol
Louisiana, with directions to the said Dietritt
Court to earrf this decree into effect.
PelcM !••
REPORTS
CASES
ASaUED AND ADJirDOSD Ot
Supreme Court of The United States.
IN JAinjABT TEaiM, 188T.
BY RIOHABD PETERS,
VOL. XI. D„,i,zodb,Google
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SUPREME COPRT OF THE UNITED STATES
DCBIKQ THS TIUK QW TBSSS RBPOBTtI,
TIm Hoir. Rood B. Tuntr, Chief Jiutlte;
The Hott. JooxFH 9k>bt, AMod»te JiuUia
Tha Hon. Swtk Thoxtmk, AmooIaU JiuUsi^
The Hon. JOHH ITUUI, AModtte Jiutiee.
The HoiT. Hbtbt Baldwir, AuodkU Jiutioi.
Th« HoH. jAim U. Wathe, AMOclate Juftlo*.
The HoH. Psiup P. Buaous, AuoeUU Jiutlai,
BKHf AifiM F. BuTun Biq., Attonuj-OaMnL
BiCHABD Ptru, Eiq., Reporter.
AuXAIIDn HriTTD, Eaq^ M«rBh»l.
WnuAM T. C*B»oij^ Baq., CUric
.dbyGOOgIC
ETTLES OF COURT.
EULB NO. «.
WLeB m printed argument ihall be filed for
MM or botb partieH, the caw Bhrnll itand on the
Mme footing aa U there were aa appearance by
eoiuueL 1B3T.
Allotment of the Circuits.
Thwa liarlnR been a Cbief Jiutlee and one
Anocbte JuatTce of thie court appointed since
ita laat scMJon, it ii ordered that the following
allotment be made of the Chief Juattoe and the
Aiaaeiata Jiutiee of the laid Buprone Court,
imong ^b» elieniti, agreeiMy to the Mt of Con-
grcaa In raeh eaae ma^ and provided g and tbnt
iuch allotment be entered on record, vii.:
For the First Circuit— The Hon. Joaepb
Story.
For the Second Circuit— The Hon. Bmltk
Thompion.
For the Third Circuit— The Hon. Hem;
Baldwin.
For the Fourth Circuit— The Hon. Koger K
Taney, C. J.
For the Fifth Circuit— The Hon. Philip P.
Barbour.
For the Sixth Circuit — The Hon. Jamei IL
Wayne.
For the Sneath Qireuii— The Hon. Joha
HXml
.dbyGOOgIC
BEFESENGE TABLE
or BDOH oina
PEOIDED IN T7. a SUPBEME OOUBT,
Jaiuij Taim, 1837t
VOL. 86.
11 PETERS AND IN U OUBTIS^S DEdSIONa
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THE DE0TSI0N3
Supreme Court of the United States,
JANUARY TERM, 1837.
JOHN SILK and John M'Donald.
Title to Isnd in fwrt o( PennsylnnU adcnowl'
edged bj eomract with VbginU of 1780 to
be in former State.
ElectmeDt. A tract of land iltaated In that
fart of the State of PennijlTaolB vbl«h. br Ibe
compact with (hp 8Ut* of TlrKlnla of 1T80. wa>
aekoowledsed to be wltbtn the former fltate, wii
held nnder the provletani of an Act of Anambl;
— — -a in 1779, hj which actual bona
■ to 1TT8. were declared to be »b-
niJH ID tne land OD whlcb the settletQ^t warn
Riade, not exceedlna (our haodrod acreo. The oet-
lleownt wet made In 17T2. Of thle tract, In the
Tear 1786. a mrre* waa made, and returned Into
(be land-offlce at PranirlTaDla, and a patent vaa
rranted for the wmi. The title act np br tbe de-
lendanU In the cjectmcot waa derived from two
land warranta from the laod-oDce of PennarlTanla.
dated In 1778, onder wh'eb mirreTa were madr in
177ft. and on which _patent8 wore leaned on tba
etb of March, 1T82. The conpaet eondrma private
properlj and rlaht* tiUtlnf prtTioaa to Ita date,
natfer and foonded on, and reeognlied br the lawa
at dtber State, (tiling within the other: prefer-
•BCa bclna given to the elder or prior right, lub-
Jeet to the payment of the pnrchaae monej re-
qolred br the lawa of the State In which ther
night be. (Or >ncb land*. Held, that the titl> dr.
rtMd nader the VlrjrlDla taw of ITTB. ani
•trtad nnder tba warranta of ITTS, and the patent
founded oa tbem, and laaued Id 1TS2.
a»l 'The title derlred nnder the 4ct of (he I-^g-
lalatnre of Virginia of 17TS, commenced In 1T72
when the aettTement wu made: and therefore
■tanda na a rigbt, prior Id ita com men cement to
that orlgtnBllne nnder the warranU of 177S. The
qoeatlon of title between (he contending partlei Ib
not to be decided b« the lawi or declilani of either
PeonBTlTanla or Virginia, bat bj the compact of
1780.
e deelKlona of t1
t Ip tkla a
caao of Jackno t. Chew, the eonrt (_._ ._
adopted the State dedalona, wbni ap^^llcable ti
M b* decided bj i , —
wbara Ibe mla of dtclalcm ta not to be eolleetad
troB the decUloni of either State, hnt la one of —
latacBatlonat cbataeter.
Movm— That State declsloni gOTem tbe Dnlted
Statm eonrta aa to State atatatM, and aa a rule of
Dtapertr. aee note* to It U Od. V. B. US ; 8 Ii. ad.
6. i.fMlSH:UL.«d.U. LiMt.
IN error to tbe Dlatr!rt Court of the TTnlt^
States for the Western District ot Penn^-
The platntiir In error, a citizen of the State
of Ohio, instituted an action of ejectment
against tbe defendants at October Term, 1831,
to recover a tract of land aituated in Alleghany
Count]', Penn^lvanla; and tbe case was tried
before the Dinrict Court tor the Western Dia-
trlct of Pennsylvania, in October, 183S. A ver-
dict and judgment under the charge ot the
court, were rendered In favor of the defendants,
and tbe plaintiff havlni taken exceptions to
the charge, prosecuted this writ of error.
Toe case, as stated In the opinion of thii
court, was ai follows:
Thomas Watson, under whom the plaintiff In
error claims, on the ZSth of April, ITBO, ob-
tained from certain commissioners of Virgin!*
a certiBeate, entitling blm to four hundred acrea
of land, by virtue of an Act of Assembly of
Virginia passed in Mav, 1TT9; the fourth sec-
tion of which, after recitine that great numbers
of people had settled In the country upon the
western waterg, upon waste and unappropri-
ated land, for which they have been nitherto
Eirevented from suing out patents, or obtaining
egal titles, etc.. enacts, "that all persons who
at any time before the first day ot January, In
tbe year one thousand seven hundred and sev-
enty-eight, have really and bona fide settled
themselves or their families, or at his or her or
their charge, have settled others upon any
waste or unappropriated lands on the said
western waters, to which no other person hath
any legal right or claim, shall be allowed for
every family four hundred acres ot land, or
eueh smaller quantity as the party chooses to
include in such settlement-" This certiflcaU
waa granted in right of a settlement 'which [*S
had been made by Watson in the year one
thousand seven hundred and sevenfy-two.
This evidence of right under Virginia was sub-
sequently transferred to the land-offlse of
Pennsylvania (the land having, under a com-
pact between that State and Virginia, been as-
certained to be within tbe limits of Pennsyl-
vania), and on the first of November, 17S8, *
survey ot his claim was made and returned to
the knd-oISce ot that State, and a patent issued
thereon by that State in the year seTviteeii
hundred and ninety-one. Including the settle-
ment made la 1772, and indudlBs the land ii
••t
Scnxm Oomr of tkb Unm Statm.
•OBtroren;. Th« deteuduits cUlm under Ed-
ward Hand, who, t^ virtue of two land war-
T^atM Rented by Pennsylvania, one for three
hundr^ mera, dated 24th Novembtr, 1773, the
other for the wine quantity, dated 27th Novem'
ber, 1773, caused surreyB to be made on both
on the aUt January, 1778, and on the 9th of
Uareh, 1TB2, obtained patents on both Burveya,
embracing the land In eontroveriy.
Both Fenniylvaiiia and Virginia havlag
elaimed the tcrritoiy, of which the land in oon-
troterey i* a part, a* beioK within their limita,
the dispute was finally adjusted by a compact
made between them, which was ratified by Vir-
ginia on the Z3d of June, 1780, with certain
conditions annexed; and absolutely by Fenn-
■ylvania, on the 23d of September, 1T80, with
an aeeeptanee of the aonditioni annexed by Vir-
ginia.
The compact declaru: "That the private
property and rights of ail peraoni acquired
under, founded on, or recognized by the laws
of either country, previous to the date hereof,
shall be secured and conflrmed to them, al-
though they should be found to fall within the
other; and that in disputea thereon, preference
•hall be given to the elder or prior right,
whichever of the aaid States the same shall
have been acquired under; such,|{)enone paying
to the said States, in whose boundary the same
■hall he included, the some purchase or consid-
eration money which would have been due from
them to the State under which they claimed
the right."
The ease waa presented to the court in print-
ed arguments by Hr. Forward and Hr. Fetter-
man for the plaintiff Id error, and by Mr. Booa
for the defendants.
It was contended tor the plaintiff that, in
the conitruction given, the Diitrict Court had
erred.
The rights of the parties to this cause will
turn upon the construction that may be given
to the compact for the settlement of boun&ries
4*] 'entered into between Virginia and Penn-
•ylvania in the year 1780, and Anally ratified
In 1784. Smith's edition of the laws of Penn-
sylvania, 2d vol. 261, Sims's Lessee v. Irvine, 3
Dall. Rep. 42S. "It was a condition of the
compact that the private property and right* of
all persons acquired under, founded on, or
recognised by the laws of either country pre-
vious to tlie date hereof, be secured and eon-
firmed to them, although thn should be found
to fall within the other, and that in disputes
thereon, preference shall be given to the elder
or prior right, whichever of the said States the
■ame shall have been acquired under; such per-
■nns paying to the States within whose bound-
ary their lands shall be included the same pur-
chase or eon Bide ration money which would
have been due from them to the State under
which they claimed the right." Thomas Wat-
son, in 1772, entered with hie laniily on a tract
of vacant land, of which the land in dispute is
a part. He continued to reside on and culti-
vate the tract until his death in ISOS. He sold
from time to time parcels of this land, and in
the year ITSO transferred and conveyed part of
the tract, including hia manston-honse and im-
provements.
At the same time he removed to the piece
BOW Ik dispute where he built k house, com-
• t«
them, continued the possession until expelled
by the sheriff under a writ of habere facias pas*
BCBsionem, issued in 1830, pursuant to a judg-
ment obtained in the case of Brien et al. v. El-
liot et al. reported In 2 Fenn. Reporta, page 4B.
Whether Watson entered on the lands origi-
nally as a Virginia settler, does not appear. But
the land commissioners of that State being in
his neighborhood, he appeared before them oa
the 26tli dF April, I7B0, and caused bis claim
to he entered agreeably to the requisitions ol
an Act of Assen.bly of Virginia, passed in
May, 1778 (see. 8, 10; Henning's Statutea at
Large, p. 42, 43, 45, 46). AfUr the ratiflca-
tion of the compact in I7B4, his Virginia enttr
was transferred to the land-olflce of Pennayl-
vanin; and on the 1st of November, I7S6, a
survey of his claim was made, returned and
accepted In the land-offlce, and a patent issued
in 17B1. The amount of purchase money paid
bv Watson to the State of Pennsylvania, was
the some that he would have paid to the State
of Virginia had his title been completed in that
State. The defendant gave in evidence three
Virginia entries, dated in February, 1780. Up-
on these entries no surveys hsid ever been
made, nor had the inceptive equity, 'which ['5
they are alleged to have conferred, been prose-
cuted in any way by the owners or holders
thereof. It was not shown that those en-
tries described or called for the land in dii-
pute, nor did it appear in evidence that the im-
provement, which by the law of Virginia was
made the basis of a Virginia entry, bad ever
been made. Having no legal foundation, and
bein^ moreover abandonM, the defendant's
Virginia entries are regarded as mere nullities,
and undeserving of further notice. The de-
fendants' title rests upon warrants issued by
the land oOice of Pennsylvania on the 24th of
November, 1773, surveyed in January, 1778,
and patented the 9th of March, 1782; and the
important question is this, whether, under the
compact between Pennsylvania and Virginia,
bis title is to be preferred to that of Wataoa,
which, although perfected by a patent from
the government of Pennsylvania, was, in its
Inceptive state, recognized by the State of Vir-
ginia. It is admitted by the court below that
if Watson had waived bis Virginia entry, and
prosecuted his earlier settlement-right under
Pennsylvania, there could be no dnubt of th-
plaintiff's right to rocover. "Wataon bod II
in his power to obtain a warrant from Pennsyl-
vania, and to charge himself with interest from
the date of his settlement; If he had done
is survey made under such warrant would
have given him the preference, but having his
election, he chose to resort to a Virginia entry
'760, therebv asserting a different jurisdic-
etc." A like concession is found in ths
opinion of the Chief Justice of the Suprem*
Court of Pennsylvania. "As on improver
under Pennsylvania, Watson might have ap-
propriated the land in dispute by a survey in a
reasonable time." This Improvement was be-
gun in the year 1760 [17721 '^ut as a Penn-
sylvania settler he had no survey at all." 1
Fenn. Rep. SO. It is proper to remark here that
Tbk LuBEa OF Hailatt v. BiUt A
ii juat ai Tklid In law %m a rta^ht vested by a
pmr warrant or patent. "Title by Hcttlement
and improvunent is now aa well established as
aoj ap«ci«a d{ title in Pennsylvania, and rery
often has been preferred to warrant, survey and
patent." Less, of Bonnet v. Derabaugh et al.
S Binner, Rep. 175; Nicholas t. Lafferty, 3
Teatea, Vti; LesMa vt EUfott t. Bonnet, 3
TmIm, eST.
It is not even neceasaty to tbe validity of a
tettlement right, so long at the settler remain*
la actual possession, that his bouodariea be de-
Bned by an official Burvey; and if encroached
upon «r expelled from his possession, he may
recover in ejectment. Davis v. Keeper, 4
•■] ■Bin. 161, and Qilday v. Watson, Z 8. k
a. 410. The only difficulty Is that without a
survey, the claim of the settler ia so indeflnite
that en action cannot be supported by reason
of the uncertainty of the land to be reeovereed;
but in the flrst place, it cannot be denied that
the land on which a man has built a house,
and that also which has been cultivated and
Inclosed by him, may be ascertained with abso-
lute certainty. Neither do we think It can be
denipd that in the case now under considera-
tion the claim of the settler may be reduced to
certainty, because it is bounded by the lines
«t adjoining surveys. So, likewiae, ma^ a
claim by a settlement be precisely ascertained
when the settler has defined his limits by an
nnofBcIal survey, marked on the ground, and
nade known to the neighborhood. Chief J.
Tilghntan in Luck et at. v. Duff, 6 Sergeant &
Bawle, 191. The holder of a later warrant is
not pttrmitted to encroach upon a prior settler.
and cut off land adjacent to his improvement
nnder the pretext that there Is surplus land,
and that the settler can fill his claim in an-
other direction. Such encroachment was held
unlawful, although made in 1814, upon a settle-
ment which commenced in ITT 6, and upon
which no legal survey had ever been made,
Blair v. M'Kee, 6 Sergeant & Rawie, 193; and
the ea^me principle ii recognised in Breek et al,
V. Hoon et al. T Sergeant ft Rawle, 330, 336.
These eases show bow settlement rights have
; rights
I appreciated In Pennsylvania, lliey
'^ , Wa-
onstrmM not only that Watson, by
hia Virginia entry and obtaining a wamat ana
patent under Pennsylvania, might have held
the lands against the patents of the defendants,
but that by waiving his Virginia entry, he
might have held it under his actual settlement
alone. Had a controversy arisen in a Pennsvl-
vani& court between Watson and Hand, prior
to the ratiflcatloQ of the compact In 1784, Wat-
■on'a settlement right would have been ad-
judged without hesitation to be valid, and
Hand's title would have been treated as a nulli-
ty. Tlie fact. If true, that Watson originally
MtUed under what he supposed to be the right-
fat Jurisdiction of Vir^nia, or that he had
kdcnowledged her jurisdiction by appearing be-
fore her land commissionera and [nwurltig an
entrr of his land, would not have impaired, or In
the least affected the merits of hie settlement
title. Pennsylvania always favored and en-
oonraced actual settlementa, and they were
•anetioned and held sacred, without any in-
£DlrT aa to tba opinion which the settlers might
i^T* atertalned upon the abstruse and doubt-
-7*1 fnl queatloa 'of SUte JariadleUon. Had
Pennsylvania receded from the contest, and
yielded to Virginia without anf compact the
territorv which included the land in dispute,
Wateon s title would have been unquestlouable.
For although it may be true that before the
iiassage of the Virginia Act of May, 1779, the
and in dispute might have been entered and
patented under that State by any person, not-
withstanding a prior settlement by another;
and although the same Act of Assembly of
1779 may "apply only to controversies between
mere settlers, yet the fourth section of that
act enacts, "that all persons who at any time
before the first day of January, ITTS, have
really and bona fldesettled themselves and their
faJBiliea upon any waste lands on the said west-
ern waters, to which no other person hath any
legal right, a claim shall be allowed [or every
family bo settled, of four hundred acres of
land;" and as Watson had really and bona fide
settled himself with his family on the lands in
dispute in 1TT2, was residing on it as a bona
fide settler in Janaarr, 1TT8, and May, 1770, be
was therefore entitled, as a settler, to the pro-
tection of the act, until a superior title by set-
tlement, warrant or patent, under Virginia,
should appear against him. No such superior
title has been shown to have existed in General
Hand; and as against him, Watson's title, in a
Virginia court, would have been valid and un-
deniable. How. then, does it happen that this
title, which in the absence of the compact would
linve prevailed without difficulty In the courts
of either State, is under and by the compact
rendered northteest The reason assigned by
the court below tor this strange result is that
Watson, instead of obtaining a warrant from
Pennsylvania, has lost his preference by re-
sorting to his Virginia entry, and thereby as-
serting a different jurisdiction.
Had the compact been less careful in saving
and preserving the rights of property origi-
nating under the respective ^vemments than
we Snd it to be; had the claimants under Vir-
ginia been thrown upon the courtesy or com-
passion of Pennsylvania without a guaranty or
stipulation in their behalf, it might be very
properly urged that a par^ who persisted In
holding on to his bad title because It was the
cheapest, should not have the benefit of a good
one which he had thereby repudiated. But
the compact is not silent on the subject of Vir-
ginia claimants. Their rights are anxiously
guarded by clauses which would seem to ex-
clude the possibility of their being either post-
poned or frittered away by any effort of con-
struction. "The private property and rights
of all persons acquired uiider or recognized by
*the laws of either country, are saved and [*8
confirmed to them, although they should fall
within the other; and preference shall be
given to the elder or prior right, whichever of
the said States the same shall have been ac-
quired under, such person paying the same
purchase money which would have been due
to the State under which they claimed the
right." The reasoning of the court below is
repugnant, not only to the sense and spirit of
the above provision in the compact, but la
flatly opposed to its words. If Watson could
not, without disadvantage or peril, obtain a
patent upon bis settlement and Virginia entry
on paying the prioa originally doe to Virginia,
• It
Bonua Comr or thk Uiano Sutm
1S3T
tha terms upon which all bis rights should be
saved was a mere decoy or tnp. The injustice
of this eipoaition is not Iimit«l to settlers un-
der Virginia; it would be equally fatal to the
claim founded Uflon warrants and surveys under
that Bute. The righU to perfect such title by a
patent from Pennsylvania, on payment of the
Viivinia price of the land. It not already paid,
nau upon a footing neither broader nor more
safe than that of a settler with ths Virginia
The rights of both are secured by the same
tne origin of the title, Is a fatal delinquent in
the one ease, It muit be equally «o in the other;
and the consequence must necessarily be that
the holder of a Virginia title, of any descrip-
tion, which has been completed by a patent
from Pennsylvania, on paying the same pur-
chase or consideration money which would
have been due from him to Virginin, must fail
in a confltct with a Pennsylvania title, al-
though the Pennsylvania title be not the elder
or prior right. Iliese eonii derations show that
the construction given to the compact by the
court below is hostile to its tenns; and would
be. If carried out is practice, disreputable to
Pennsvlvania. The titles of Watson and Hand
eonitttuted one of the subject* of controversy
in the case of Brien et ui. v. Elliot et al. re-
ported in 2 Penn. Rep. 4B. In that case the
court was equally divided; and the opinion
which appears in the printed report would not,
aside of its intrinsic nierita, be entitled to any
weight in an inferior court of the State in
which it was pronounced i much less will it be
regarded here as conveying the views of the
Bupreme Court of Pennsylvania upon the ques-
tion under consideration, as under the law of
Pennsylvania one verdict and jud^ent are not
• *] conclusive; and It is perhsps due *to
the learned Chief Justice to remark, in con-
eluiion, that his opinion may have been in-
fluenced by an unfortunate misconception of
the facts of the case. He supposed the title of
Hand to have originated in a location bearing
date the 3d April, ITQS, three years before the
setUement of Watson. But the commence-
ment of Hand's title was the warrant of 1773
above referred to. Xo location was given in
erldenee by either party applicable to this land.
But even if it were *o r^rded, the construc-
tion given by that court to the comnact with
Virginia, although regarded with all proper
deference, would not be adopted by thia court
aa a matter of course. The possibility if not
the certainty of a different and opposite con-
struction, prevailing In the courts of Virgii
for and declared by thia court, unfettered by
tbe opinions of others. It is found in its terms
to reeognifc and aave every description of
right. The high contracting parties designed
that tbe beneflta secured by ft to the claimants
under both governments should be equal and
reciprocal, and that their titles should have,
reapectively, all the advantage and efficacy
that could b« derived under the laws of either.
This is so plain at never to have been ques-
ttoned or doubted In aaj ease ariring under
• 11
the eompaet. In the CMe of Brien et aL t.
Elliot, 2 Penn. R. 00, 61, it is premised as Um
basis of the argument of Chief Justice Oibsoa,
an argument which conducted him to a con-
eiuiiion directly opposite to the premise* front
which it was drawn. His language is aa lol-
lows: "Whatever may have been the eaat
originally, the titles of both 'States' were, at
regards the question of priority put by tbe oou-
pact, exactly on a footing, and are by a fair
construction to be treat^ aa If they bad al-
ways been so. Unless they were oonaidered te
have been in relation to each other, valid co-
existent rights from tbe beginning, as far aa re-
gards jurisdiction, how could there be any
comparison as to dates T"
The very basis of the compact is an admis-
sion that the jurisdiction shall be taken to have
been in common, and that claimants under the
one Btate shall be entitled to the same protec-
tion against claimants under the other "that
they would be entitled to between themselvea,"
Upon this construction of the compact, it would
seem necessarily to follow that Watson in a
contest with Hand, who claimed under Penn-
sylvania warrants, would be entitled to all the
advantages of a Pennsylvania settler, and must
of course prevail. But this natural interrnn
was rejected by the learned Chief Justice :
'and instead of allowing to Watson's Im- t'lO
provement the merit to which, un.ier his o«o
proposition it was entitled, he treats it as s
mere Viriiinia settlement, (jiving no c-ilor <>l
title till 1779; and then, by transmuting Hanil's
Pennsylvania warrants into Vir^nia warrants,
he discovers that Ihey are the "elder or prior
title." With all possible respect For the learnrd
Chief Justice, we must be allowed to say th^t
in this instance tbe use made of his own con-
struction of the compact is most inapt and
injurious. It is not true that as against Penn-
sylvania warrants, Watson had no color ol
title prior to 1779, as a{;ainst those warrants.
his title under the laws of Virginia was valid
from the date of his settlement. But the
learned judge supposed that by the compact,
Hand's Pennsylvania warrants were converted
into Virginia warrants; and that the rule ap-
plied in the case of Jones v. Williams, 1 Wash.
Rep. 231, which was a conHict between Vir-
ginia claimants, unalTectcd by the compact,
was decisive of the present case. We contend,
however, that if under the compact a Penn-
sylvania warrant Is clothed with the merit and
efUcacy of a Virginia warrant, a Virginia set-
tlement i* also invested with all the attribute*
and advantages of a Pennsylvania settlement.
This is not only the clear import of the com-
pact, but it is adopted by the learned Chief
Justice himself; and it is only by denying to
his own rule the reciprocity secured by tlie
compact, and dictated by every principle ol
reason and equity, that Watson's title can be
rendered doubtful.
The learned Chief Justice says that Virginia,
"having rccojinized the grants of another Slat*
aa being equally valid as her own, it is fair
to say she recognized tliem as being attended
with all the incidents of her nun. against
which, it appears by her own court, tlie doc-
trine of priority by relation never prevsiled."*
Ihis reasoning of the learned Chief JuitiM
may be very pvrtinent and true, but if It be aa^
lilt Lkhukic or Mamlaxx v. is
t. Ann M'UoKAui.
M
tkM it rnut tollmr tfatit PcniujlvMii* aAao
bavinf rMognized tba right* of mU person* *c-
oHiitii under, foundsd on, or ri:c>>jjniieil by
us laws of Virginia, a« baing equuUy valid a^
kir own; it i* tair to say she recognized ttum
u being attended with all the incident* of her
OWB; consequently, that Watson 'a settle meat
is, in the compact, reoogniied bf her a* eijual-
)} Tslid *■ a l>ennsjlvania settlement. Tbi* i*
plain reaeoning, and a fair eip'isition of tba
compact. Ihe error of the leained Judge i* in
■ppljing it to the claim* originating under
PswujWania, while be denies it* application to
daimii originatins under Virginia.
11*] 'Keeping in view the application of tba
ranpact, as made bj the learned judge, to the
raae of a PvnnayJvania warrant in condict with
s Virginia settlement, it majr be inquired, what
would be the fat* of a Virginia warraoL dated
In 1773, in conllict with a l^nnsylvania oettld-
Bent originating in 1772 1 The reasoning of
tlu learned judge require* tlie poitponement
of the Virginia title in thii case iiUo; and thus,
while a Peuuflvania warrant is made to pre-
vail sgainct a prior Virginia aettlement, a
PennejlTania settlement will prevail against a
Virginia warrant. Further, it liaa been shown
that such settlement is by the laws of Penn-
■ylvania a perfectly valid title from its com-
mencemBnt, and cannot be overreached or af-
fected by a later warrant and survey and pat-
cnL Such being the case, the argument of the
laamed judge would give to a settler under
Pennaylvania, who may have entered in that
character upon Watson's tract in I7T6, an old-
er and better title than Watson's; and bad *uch
■ettlcr been removed by an action of ejectmeni
it the suit of Watson before the compact, he
(like a Pennsylvania warrantee or patentee, re-
■DDved in the same manner} might, after thu
compact, have re-entered upon Watson and
turned him out by action of ejectment; prov-
ing thereby that the law and the right* of the
parties were one way before the compact, and
another way after the compact. The learned
Qiicf Justice appears to have foreseen tbi* re.
■ult of bis reasoning, and be has accordingly
provided for it by aMertlng (2 Fenn. R. 61)
that "the power of the two State* to regulate
qncatioB* of title to the soil even at the ex-
pease of rights previously vested under either,
IS Dot now to be questioned. The compact is
necessarily founded on an assumption of it.
Hare wiim no constitutional limitation on either
aide, and the parlies acting in the capacity of
swerelgns, were fettered by no rule but their
•cswe of expediency and Justice. The con-
sideration was the compromise o( an interna-
tional dispute, and the individuals whose titles
weiw j«oparded bad no right to call on the
Stata under which they held, to aaaert their
ri^ta to the soil." Thu is dealing very plain-
ly with the compact, and with titles claiming
iU protection. The fact that WaUoo had a
VMted right prior to the date of the compact,
wUeh tni^t have been maintained under eith^ir
govcnunent against the warrant* and surveys
M Hand, has been clearly demonstrated; and
tba fact that by tha Judgment of the Supreme
Oanit of Penmylvania, tn* compact which ex-
■raaely guarantied his right, has been made
{fee iBatmmsnt of it* deatruction, is equally
nttaJB. A latent iatantion which the compact
txpitmtlj *repeal* by the dedaratioa of a [*!>
contrary intention. Is finally imputed «o it; and
as V irginia had the power of annihilating the
vested rights of elaimants to whom her faitk
was pledged, It i* insinuated that she lias ac-
tually done it. If such be not the meaning of
the learned judge, then his language is inappli-
cable and out of place. We insist that uia
implied imputation upon the faith and booor of
Virginia, rests on nothing better than mera aa-
sumptiou; that it is disclaimed by her in ex-
press terms, and repudiated by the Confirming
Act of Feuusylvania, cited by the learned judn
In support of his opinion referred to. "Al-
ihougb the conditions annexed by the L«aisla>
ture of Virginia to the ratiflcation of tkt
boundary line agreed to by the commissioners
of Pennsylvania, Virginia, and Maryland, may
seem to cpunteuanoe some unwarrantable claim
which may be made under Virginia in conse-
quence of pretended purchases or settlements
pending the controveray; yet this State doe*
agree to the condition proposed by the State of
Virginia," etc 3d Dallas'* Reports, 42Q, Sinu'
Les«ee v. Irvine. Such was the understanding
of the Legislature of Fennsylvania; and like
every other document ei
troversy about limits, their desire to save and
protect every description of private right, is a
fact beyond cavil; and when it is recollected
Ihat otither State proposed to compromise or
touch any right* oi soil previously vested in
individuals; that the controversy was carefully
restricted to the adjustment of boundaries, and
that it terminated m an explicit, recorded dis-
claimer of any purpose to unsettle or jeopard
private rights, a construction of the compact
which displaces a pre-existing valid title by one
that is proved to have been comparatively
wortbicBS, is a violation of its terms, and a pal-
pable breach of the public faith. The learned
Chief Justice remarks (2 Fenn. R. 62) that the
Confirming Act of Pennsylvania was doubtless
an agreement to close with Virginia on her own
terms, and to encounter the danger of fraud
and imposition of surreptitious titles which
these terms rendered more imminent; not to
waive all scrutiny and submit to fraud and
imposition when it might be detected.
If, by this language, a suggestion is intended
to be convened that Watson's title is liable to
thq imputation of fraud, or that the case before
the Supreme Court of Fennaylvania involved
any question as to his Virginia entry having
been fraudulently obtained; then the case was
totally misconceived by the learned Chief Jus-
tice. For it was neither proved nor pretended
that Watson's title was surreptitious *or [*tt
fraudulent. If the learned Chief Justice in-
tended to express a truism which do one ever
disputed, and to take the risk of its being
adopted by others as a proper and the only
basis of bts conclusion, then his language was
inapplicable to the case.
The cases of Smith v. Brown, 1 Yeatea, SIS,
and Hyde's Lessee t. Torrence, 2 Yeates, 4tS,
referrM to by the learned Chief Justice, afford
no countenance whatever to his opinion. In
the case of Smith v. Brown, the plaintiff claimed
under Pennsylvania, by a title originating in
an actual settlement which commenced in I7M.
The defendant claimed under a Virginia entry
• 19
u
8UPBUU UouBT Mr THB Unino Uxatu.
rMfting A settleinent oommenced in ITTO, but
which WM Dot proved on the trial. It wu de-
cided tlut the recital of the settlement in th«
Virginia entry waa not conclusive u against
the PennaylvaDia claimant. In that ease the
general rule of the compact is affirmed, viz.,
that there can be no reason for making a dis-
tinctioQ between settlers under Virginia and
PannsylvaDla. 1 Yeates, 517. In the ease of
Hjde's Lessee v. Torrence, S Yeates, 440, 442,
tbe court reiterated the principle decided in tha
caso of Smith t. Brown. In both caMS, how-
•nr, tbe question whether prior settlements
had been made under Virginia, was regarded by
the counsel and court as material, If not vital,
Mr. Ross, for tbe defendants, argued:
A preliminary question arises whether the
decision of tbe Supreme Court ot Pennsylvsnia,
In this very controversy, must not be deemed
An attempt may be made to break
the evidence of such division t A great numbei
of points — some of them of little importance-^
were discussed on tlMt occasion; and a dlf-
ferenoe of opinion upon any one of them would
lead to the brief memorandum of dissent madd
by the reporter. But, aside from this cos-
•ideration, is it not enough that In the State
courts of Pennsylvania this controversy, relat-
ing to a tract of land within her boundaries,
would be considered as closed? In 12 Wheaton,
107, Mr. Justice Thompson, delivering the
onlnion of the Supreme Court of the United
States, says: "This court adopts the State de-
cisions because they settle the law applicable
to the case; and the reasons assigned for this
ooUTBe apply as well to rules of construction
growing out of the common law as the stat-
14*]ute law of the State, when 'applied to
the title of lands. And such a course u indis-
pensable in order to preserve uniformity; oth-
erwise the peculiar constitution of the judi-
cial tribunal of the States of the United States
would be productive of the greatest mischief
and confusion." The civil jurisdiction of the
feieral tribunals was conferred in order to se-
cure to the foreigner, or to the citizen of an-
other State, an impartial hearing; and the in-
stitution is perverted when litigation may there
b« renewed, long after it had oeen put an end
to, as between ettii^eos of tbe State whose soil
if the subject of controversy.
Supposing, however, the opinion of the 8n-
preine Court of Pennsylvania to be open to
erfticlsm and reversal, can it be successfully
assailed t
Previous to the Act passed by the liegislature
of Virginia in 1779, a title to waste lands In
tiiat State could not be acquired by improve-
"Before that time, those lands might have
been entered and patented, notwithstanding
prior settlements by others; and even this act
which considers settlers entitled to some com-
pensation for the risk they had run, sllows them
a preference only to such settlements as at
that time were waste and unappropriated. As
to priority of settlement, it might still re-
main a question between persons, both of whom
claim nndar the aame sort of title; but the Uw
• 14
rants; it applies to controversies between n
settlers." Such are the words of the president
of her Court of Appeals in delivering its t^nn-
ion in Jones *. Williams, 1 Wash. Bep. Z31. It
is said, however, that this is predicated of prior
appropriations under grants by Virginia, and
not those of Pennsylvania, which were diare-
^rded before the period of the compact. Be
It so. But whatever may have been the east
originally, the titles under both were, aa re-
gards the question of priority, put by the com-
pacl exactly on a footing; and are by fair con-
struction of it, to be treated aa if they had al-
ways been so. Unless they were ooaaidered to
have been, in relation to oaob other, valid, ee-
existent rights from the beginning, as far aa re-
gards jurisdiction, how eould there lie any eom-
parlson as to dates I Tbe very basis <^ the
compact is an admission that the jorisdietfam
shall be taicen to have been in oommoD, and
that claimant* nnder the one State shall be en-
titled to tbe same protection against claimants
under the other, that they would be entitled to
between themselves. If, then, the plaintilTB
title under FennsylvsMla 'was perfected [*1(
before Watson had even color of title by tbe
laws of Virginia, will an ei poft facto law,
which it is conceded would not give him Us
title by relation against a prior grantee of Vir-
ginia, be more efficient against a grantee of
PennsylvaniaT It is an unfair construction to
say that a Virginia title shall be judged of aa it
happened to stand by the laws of that Stata
at the time of the compact. If the actual or^n
of a title under either State be the earlier, it
is not to be overreached by a law of the otber,
assigning to the opposing title a fictitious origin
by the doctrine of relation. Granting Virginia
might lawfully declare that an unauthoriKd
improvement should be taken to have rosted
title from its inception, against herself, yet
having recognised the grants of another Stats
as being equally valid as her own, it is fair to
say she recognized tbem as being attended with
all the incidents of her own, against which, ft
appears by the judgment of her own court, the
doctrine of priority by relation never prevailed.
Neither is the power of the two States to regn-
latR questions of title to the soil, even at the
' " ' '- nested under
The L-ompMt is
'on of it
on eitbeT
sovereigns were fettered by no rule but tbdr
sense of expediency and justice. The conaid-
eratlon was the compromise of an international
dispute, and the individuals whose titles were
jeoparded, had no right to call on the State
from which they held to assert their rif^ta to
the soli.
In tbe act of ratiScstion by Pennsylvania,
it was resolved, "That although the condi-
tions annexed by tbe Legislature of Virginia
which may be made under the State at Vir-
ginia, in consequence of pretended pnrehaKS
or settlements pending tkaeontroversT,j«ttMs
rily founded in an a:
There was no constitutions! lie
side, and the parties acting ii
isn
Tmb Imkb of tUaLAXt r. Bom ai» ITOonub.
StaU (PeBRBylvftidii), deUrmlnIng t« giva to
the world the most unequivocal proof oC tts
desire to promote peace and barniony «ith a
•Uter State, »o necessary in this great coiiteRt
with the common enemy, doe* agree to the con-
ditionfi proposed by the State of Virginia in iti
reaolves of the Slst of June last.** And thia
waa at one time supposed to be a waiver of ob-
Jeetion to any Virginia title that ehould be eer-
tiSed- It was doubtless an agreament to close
with Virginia on her own terms, and to en-
ao«uiter tae danger of fraud and impoailion
11*) of 'surre^titiooa titles which those terms
nndered mare imminent, not to waive all scm-
t^y and submit to fraud and imposition where
It might be detected. Such a oonstniction
would, in all cases, have made the certificate
•oueluslve evidence of the facts stat«d in it,
which it was held in Smith r- Brown, 1 Yeat
Bt8, and The Lessee of Hvde v. Torrence,
TeaUs, MS, not to be. In the latUr it was <
dared that a Pennsylvania claimant may show
fraud, mistake or trust, or that the Virginia
elaimant was not in the country before the 1st
of January, 1T7S — the point of time limited for
the eommencement of his settlement.
The following is a true history of tha whole
•mtrovenyi
1779, August 81. Comukct between Virginii
4nd Pennsylvania entered into.
1780, Jnna 2S. Ratified by Virginia with
MnditioDH annexed.
1780, September S3- Batifled by Pennsyl
nut*, absolutely, with acceptance of the an'
Mxad condition.
The compact was closed, and took efToet on
Ike 23d of Beptember, 1780.
Both titles were then coDcluslrely settled,
ntr states might compensate losers, but could
Wt alter the right.
At that epoch the title of Gen. Hand stood
th»:
Warrant In name of Edward Hand for three
hundred acres, dated the 24th of November,
1773, anrveyed the 21st of Jannarr, 1778^ tlu-ee
hnadred and eighty-nine acres. Warrant in the
name of John Klder for three hundred aeree,
dated the 27th of November, 177S, survsyed
the 21st of January, 1778, three hundred and
■evaity-one acres. Three Virginia certificates
for four hsndred acres each, in riEbt of these
Wttlements made in 1770. All regularly
entered with the Virginia surveyor, and tran-
■eribed in his entry book.
The title of all hU lands In that disputed re-
gion was effectually protected against both
States. When the compact was finally closed.
Gen. Hand, on the faith of it, had all his sur-
veys retumel into the land-offlce and aeoept-
•d. The purchase money and surveying and
office fees paid, exceeding (on the two tracts)
f2G0; and on the 9th of March, I78S, patents
Issued on both surveys, and actual possssafoa
of both tracts by bis tenants occupying the
kn<L
At tUs period of time there was no Mvaat
hy Watson or any other parson; there was bo
dispute, no complaint.
11*1 Thomas Watson, to 1T80, April 20,
obtained a Virginia certificate for four hun-
I any of Hand's sarveys. No Hnes run or
marked. No rd^uest made after the compact
to the surveyor in Pennsylvania to inclose his
claim until the 1st of November, 1786, when
he caused a survey to be made and returned to
the land'ofTice. But It was here found to in-
terfere with the patented lurveye of other per-
sons, and returned to him to bo correeted; on
the 17th of Uarch, ITSl, he presented the cor-
rected resurvey, and obtained a patent for two
hundred and seventy-three acres, "corrected and
altered agreeably to a request of the Surveyor-
General." [Hand's patent was dated the Mh
of March, 1782. That such proceeding In
Pennsylvania was Illegal and void, see 11 B. ft
B. 23.] On this false suggestion he obtained
liii patent which is now the basis of the plaia-
tiETi title. He then sold all the surrey outside
of Hand's land, and removed from hia honso
and improvement, and took possession of the
cabin and land now in dispute.
Soon afternards Weet Elliot set up a elaim
to these forty-seven acres, and gave notice that
he would prosecute a suit against Watson un-
less be would give up the land to him.
In the autumn of 1794, Gen. Hand came vrith
the army to Pittsburg, and went out to visit
his lands. Soon after his return to town, he
and Watson came to the bouse of Gen. Gibson,
where they stated that Rand had agreed to
Eroteet Watson against Eltiot, and let him
old ths forty-seven acras, for his lifetime, ht
(Wataon) paying yearly a bushel of Indian
corn, and desired Gibson to defend him, and get
eonnse! for blm when neeeisary. To this Wat-
son agreed, and several times afterwards callsd
on Gibson to explain the threats used by
rangement.
After his death speculators purchased the
supposed rights of Ms children, and employed
counsel to mng and prosecute suits to recover
thess forty-seven acres which are now ths snb-
jeot of controversy.
Gen. Hand's titles nnder Pennsylvania and
Virginia are clearly the eldest, and under the
compact must prevail.
It is an unalterable regulation, founded In
Jity, to preserve the honor and good faith
both States as far as possible i each had
grants for the same lands; let the ['IS
good old rule prevail — prior in tempore, potior
est in jure. Watson was enlpably negligent;
he never indicated his claim or boundary until
he made an erroneous survey, the let of No-
vember, 17M, four years after Hand's patents
had been issued ; five years afterwards he sends
an amended survey to the office, falsely pre-
tending he had corrected bis errors and thrown
out the interfering patented lands. This trick
would, in itself, poatpons and preclude hhn
and all elalming under him forever, from sus-
taining any suit in a court of Justice. Besides
this, he surrendered to Gen. Hand all his elaim
to the premises for a life estate which he en-
joyed and with which he was lutisfled aa long
as he lived; and the plaintiffs, for a trifle,
have brought up the claim that he had ceased
to assert and waa too honest to revive.
iMida wars patented the »th a<
M
SuvBBMB Comt or i
I UllITHt Statm.
IHT
Ibrdi, ITSE; Wataon'i tlu ITth of Mireh,
1791, Etne years Bfterward*. Watson'a kMign-
eei being now plaintiSs, and holding unaer
the junior grant, cannot maintain an eject-
ment, or recover in a court of the United Statei
•gainst th« eldeat patent.
More eipecially niuat Wataon'i patent fail,
when a solemn compact baa egtabliahed the
relative efficacy of each, and ezpresslj stipu-
lated that all conflicting titles in the disputed
territory shall, without exception, be govenwd
bf thta rule.
A aurvey breaking into and inclnding pat-
ented land fa void, was alwaya illegal «ii<f in-
operative in Pennsylvania. 18 Sergeant A
Rawie, 23.
Upon tin whole, therefore, of this record, tha
defendant! in error aubroit with great confi-
dence that the judgment of the Dietriot Court
of the United States will be affirmed with ooat«.
Mr. Justice Barbour delivered the opiidon o(
the court:
Tbia ia a writ of error to the District Court
of the United States for the Western Diatrict
of Pennsylvania, in an action of ejectment, in
which the plaintiff in error was plaintiff in the
court below, and in which judgment was given
for the defendant In that court. It cornea up
upon two bills of exceptiona taken by the
Cintiff in error to the opinion of the court at
trial; the one in relation to the admission
of certain evidence which he allegea to have
been improperly received; the other to the nil-
lag of tbe court upon aevend pointi of law in
its charge to the jury.
We think it unnecessary to discuda any of
It*] these points but one, 'which we consider
decisive of the case. And that ia the relative
C'jrity of the respective rights under which
parties claim.
The facts of the case are these: Thomas
Watson, under whom the plaintiff in error
elaims, on the 26th of April, 1780, obtained
from oertain eommisaioners of Virginia, a cer-
tificate entitling him to four hundred acres of
land, by virtue of an Act of the Assembly of
Virginia paased In Uay, 1T7B; the fourth sec-
tion of which, after reciting that great num-
bers of people have settled in the country, upon
the western watera, upon waste and unappro-
Eriated lands, for which they have been hither-
I prevented from auing out to patents, or ob-
taining legal titlea, etc., enacts, "that all per-
sona, who, at any time before the first day of
January, in the year ana thousand seven hun-
dred and seventy -eight, have really and bona
fide settled themselves, or their families, or at
his, her, or their charges have settled others,
upon any waste or unappropriated landa on the
aaid western watera, to which no other person
hath any legal right or claim, ahall be allowed,
for every family so settled, four hundred acres
of land, or such smaller quantltv aa the party
chooses to include such scttlemeDt." This
certificate was granted in right of a aettle-
ment which had been made by Wateon In the
year 1TT2. liis evidence of right under Vir-
ginia waa anbaeouently transferred to the land-
office of Pennsylvania (the laud having, under
a compact between that State and Virginia,
hereafter Bore particularly noticed, been aaeer-
• It
Utned to be witUn the tlmlU of Faanaylvmns);
and on the Ist of November, 1780, a survey si
his claim was made and returned to the lasd-
office of the latter State, and a patent issued
thereon by the State in the year 1791, includ-
ing his settlement made In 1772, and iocludhig
the land in controversy.
The defendants claim under Edward Hand,
who, by virtue of two land warrants grvnted
by Pennsylvania, the one for three hundred
acres, dated the 24tfa of November, 177S, the
other for the same quantity, dated the 87tli of
November, 1773, caused surveys to be made on
both on the 21at of January, 177B; and on
the 9th of March, 1782, obtained patents oa
both aurveya, embracing the land in coctro-
Both Pennsylvania and Virginia haviag
claimed the territory of which the land is coo-
troversy Is a part as being within their limits,
the dispute was finally adjusted by a compact
made between them, which was ratified by Vir-
ginia on the 23d of June, 17S0, with certain
conditions annexed; and absolutely by Penn-
sylvania on the 23d *of September, 1780, {'l*
with an acceptance of the ccmditions annexed
by Virginia.
That compact, inter alia, contains the fol-
lowing atipulation: "That the private prop-
erty and righta of all persona, acquired under,
founded on, or recognized by the laws of either
country, previous to the date hereof, be secured
and confirmed to them, although they should
be found to fall within the other, and that ia
disputes thereon, preference shall be given to
tha elder, or prior rioht, whichever of the said
States tlie same shall have been acquired ns-
der; such persons paying to the States in wuo»
lioundary their land sliiul be included the sanM
Eurchase or consideration money which would
ave been due from them to tlie State tniler
which they claimed the right."
The righta of the partiea must be decided by
the true conatruction of this atipulation, aa ap-
plied to the foregoing facts of the case. What
is that construction! In the firat place it is
declared that the property and rights of all
persona, acquired under, founded un, or recog-
niied by the lawa of either country, pruvious to
the date of the compact (that is, the year
1780), ahall be secured and confirmed to thres.
The Act of Virginia of May, 1779, before cited,
is in point of Mronology previous to the data
of the compact. Is not the settlement of Wat-
son, made in 1772, recognized by that actf It is
in explicit terms, because the act makes an al-
lowance of four hundred acres of land to aH
those who ahall have bona fide made a settle-
ment on waste and unappropriated land be-
fore the first of January, 1778; and it has been
seen that Watson's settleoient waa made ia
1772. What was the motive which induced the
Legislature of Virginia to make this allow-
ancet We find it declared in the preamble
to the fourth section of the Act of May,
1779; It waa that persons who hsd mads
settlements, had been prevented from suing out
patents or obtaining legal titlea by the Kiog
of Great Britain's proclamations, or instrve-
tious to his governors, or by the then lats
change of government, and the then present
war having delayed, until that time, the
openinf of & land-ofiioe, and th« establiah''
Peter* 11.
1S3T
Thk Lnsn or MAKun t. Sue Aim WDemna,
■ent of knr certain ternii for gtsutlng
landa. And what waa the consilient ion, we do
not mran pecuniaij, but valuable, on which
the allowance was founded T The same pream-
ble infonns us that it coasisted in the justice of
laakinf; sorae compensation for the charge and
riak which the aettlera had incurred in maki —
tbeir aettlemenU.
It ia apiArrnt, then, that the L^alature did
tl*] not pass the law in 'question as making
k donation, but as altonln); a reasonable emn-
IwDsation for something of value on the part
oF settlers; not of money, indeed, paid into the
colTera of the State, but of charge and riak
eurred \>j the settlers. We think, then, that
the allowance thus made, is, in the language
of the compact, a right recognized by the law
o( Virginia previoua to the data of that com-
pact. CcniaiderLng it aa thus recognizeU, and
eouMqaentlT as seoured and eonflnned, ws
some now, in the order of the argument, to the
other part ol the atipulation aforesaid; which
right
< ahal
In answering this question, we think that the
Int thing to be done is to aacertain the charac-
ter of the rights of the parties, as settled \>j
the laws of the States unaer which they respec-
tiTcly claim, aa these laws stood at the data of
the compact. In this aspect of the subject, it
has been seen that Uie defendants claim under
warrants granted by Pennsylvania in 1T73, and
mirveyed In 177B. But the Act of Virginia
of 1778, having allowed four hundred acres of
land to those who had made a settlement be-
fore the firat of Januaty, 1778, and having
founded that allowance on the charge and risk
which they had incurred; in our judgment,
the equitable claim or the inchoate right of the
p^tiea must consequently be referred, for it*
eonmeneement, to the period when the charge
and risk were incurred — that is, in the ease at
bar, to the year 1772. If, as we think, thia
principle be correct, this mere oompariaon of
dates would decide the case. It has, however,
been argued that if tlii.s case were In a Vir^nia
court, it would be decided in favor of the right
under which the defendants claim, because
that is by warrant, before the Act of 177S; and
in support of this, the court has been referred
to the case of Jones v. Williama, 1 Washing-
ton, 230, in which the Court of Appeals of
that State aays that before the Act of 1779,
thoae lands (that is, lands on which settle-
ments had been made) might have been entered
and patented by any person, notwithstanding
trior settlements by others. That the Act of
lib applies to controversies between mere
aettlera. That It does not set up prior rights
of this sort, ao as to defeat those legally ac-
quired nnder warrants.
The error of this an^ment, aa we conceive,
flonxists in tbii: that the doctrine her« stated,
liairevpr true in itself, does not apply to the
ease at bar. That was laid down in a caae be-
ll*] tweea two persona, 'both of whom
elaimed under Virginia, and was therefore
gDvemed by the laws of Virginia, alone; where-
as !■ this ease, one of the parties claims under
PeniujlvaBia, and tl>« other under Virginia;
• [>. fNl.
and the ease la to be decided, not by the laws
of either State, by themwlvea; except that, as
before remarked, the character of each right, is
to be flxed by the laws of the Ktate as at the
time of the compact under which the right is
claimed, and then the comparison between the
two ia to be made, not under the lawa of either
State, but under the stipulation in the compact
before referred to. Tnus, to illustrate the
origin of plaintiff's claim, being, in our opinion,
as operated upon by the Act of Virginia of
1779, to be referred to in the period of Watson's
aettlement in 17TZ; and that of the defendants,
as affected by the laws of Pennsylvania, brins
of later date, the foundation being thus laid
for deciding which is the prior or elder title;
we then apply to the case the compitct, which
declares that the preference shall be given to
tbu prior or elder.
We suppose that It will scarcely be denied
that by tne Act of 177S Virginia reeondsed
the inception of the title of settlers, as oelng
of the (Uta of the settlement as against her-
self; if so, can it be imaj^ined that by the
compact aba intended their title to take its date
from a later period! If it should be said that
•o also Pennsylvania cannot be supposed to
have intended to Impair the force of the title*
claimed under her, the answer that each State
intended that Ita own lawa should settle the
character of the right elaimed under it, as to
the time of its inception, and in every other
respect, and then that aeoording to tha incep-
tion thus fixed the rule of priority should de-
elda as provided (or in the compact
It was argued that the question had been set-
tled in the Supreme Court of Pennsylvania;
and the doctrine sUted in 12 Wheat. 167, was
referred to, where it is said that thie court
adopts the State decisions because they settle
the law aoplicable to the case; and the reasons
assigned for this course apply as well to rules
of constmotion growing out of the common law,
as the statute law of the State, when applied to
the title of lands. To say nothing of the divi-
sion of the court. In the caae referred to, it ia a
decisive answer to this ar^ment to say that
the principle does not at all apply. It was laid
down in reference to eases arising under, and to
be decided by the lawa of a State, and tjien tin
deciaiona of that State are looked tO| to aiew-
tain what that law is; whereas in the caae at
bar, the queatlon arises under, and Is to be de-
cided bf a compact between two 'States [*2B
where, therefore, the nils of daolsion is not to
be collected from the decisions of either State,
but is one, if we may so speak, of an interna-
lal character. Upon the whole, we are of
opinion that the judgment of the court below
was erroneous in charging the jury that the
title of the defendants was the elder and prior
t, and was therefore protected bv the com-
pact; on the contrary, we thlnic that o[ the
plaintiff was the elder and prior, the judgment
must therefore be reversed, and a venire facias
Dvo awarded.
Mr. Justice VLean.
The Chief Justice and Justice M'Lenn think
that the condition of the oowpact — "tliat the
• IT
BonutKc Cotut or the Unmn BrAns.
print* property And right* ol All pcnons ■«-
Juired under, (ounded on, or recogniied by the
IH'» of either country previous to the date
hereof be secured t.rii confirmed to them, al-
though they should be (otind to fall within the
other; and that Id disputes thereon, prefereuce
shall be given to the elder or prior right,
nhichever of the said States tliE same shall be
acquired under" — placed the land in contro
versy under the common jurisdiction of both
states : and that the first an propria tion of the
land, under the authority of either State must
be considered, under the compact, as the prior
right
The Pennsylvania warrant which was located
on this lanil wns surveyed on the 21st of Janu-
ary, 1778. At this time the Virginia claimant,
though he lived on the land, had no oolor of
right. He was in fact a trespasser.
The Virginia Act of 1779 provided "that all
persons who, at any time before tlie 1st of Jan-
uary, 1778, had bona tide settled upon waste or
unappropriated lands on the western waters, to
which no other person hath any legal right or
claim, shall be allowed four hundred acres,"
etc.
Now, il the land in controversy was subject
to the jnriediction of both States, and might be
appropriated by either, was it not appropriated
under the Pennsylvania warrant, before the
Virginia claimant had any right under the Act
of 1779? This is too clear to be controverted.
In the language of the compact, then, had not
the Pennsylvania claimant "the prior rightt"
The Act of 177S does not purport to vest any
94*] title in the settler 'anterior to iU pas-
sage. The settler, to bring himself within thf
act, must show that he waa a bona flds settler
before the 1st of January, 1778; and this en-
titled hiin to four hundred acres of land under
the act, provided "no other person had any
legal right or claim to it."
At this time the land, as baa been shown,
was appropriated under the Pennsylvania law,
and which appropriation, if effect be given to
''the prior right," under the compact, doe*
constitute, witliin the meaning of tne Ast of
1779, a "right or claim to the land."
In 1 Wash. Rep. 231, the Court of Appeals
ol Virginia says that the law of 1T7B does not
"•et up rights so as to defeat those legally ^-
quired undi;r warrant*."
This land, by the compact, was considered as
liable to be appropriated by a Fenosytvanta
as by a Virginia warrant, before the Act of
177D; and in ascertaining the priority of right,
the time of the appropriation is the tact to be
established.
This cause esme on to be heard on the tnn-
•cript of the record from the District Court of
the United Btatee for the Western District of
Pennsylvania, and wa« ar^ed by counsel ; on
consideration whereof, it is now here ordered
and adjudged by this court that the judgment
of the said District Court In this cause be, and
the same is hereby reversed, and that this cause
ba, and the same is hereby remanded to the
■aid District Court, with directioua to award
a Tenir« facias de novot
»ll
AMOS WEBB, Aaron Smith, and Ira Smitk,
Defendants.
Jurisdiction — residence of party In another dia-
trict of a State than that m which suit i*
brought — note given to firm in which aam
partner only has an interest.
U'Utckea A Plckllu were Id partDeiahlp, as mef-
chants, in the State of Louisiana -, snd at tbe dtsso-
lutlOD of the conaectiDD, Blckllo sgrt^d Xo purchaM
tbe bsif of tbe stock belonctni to M'Mlcken ; and
sfter Che partnership was dlsaolved, gave Mm. la
psymeat tor the ssme, s promlisor* DOte, psTsbl*.
sfter iU dale, to the order or M'Mlckpn k F rk'tn.
which was execnted b> Plcklln, Jededlsh BoKh,
snd Amos Webb, bj wfaleli they promised. Jointly
and severallr, to pay tbs amount ol tbe sale. aI-
thauEh Ihe note wss mide payable ta tbe order ot
H'MrcksQ * Plcklln, the latter waa In aoviw tnter-
egt''d m It, SI tbe psvee Ibereof. M'Mlcken Is a
eltiien ot Ohio, and tbe drawers ot ths Dute were
eltlirni ot the State of LoulniaiiH. Amos Webb n-
slded In tbe wsslern district of l.oulslaDa, tint when
the process Id this suit wu served uoun falm be was
in New Orleans. In [he eastern district. The de-
fendant, Webb, denied tbe liirlsd iltou of tbe Dis-
trict Court of tbe United States tor tbe Eaatera
District of Loulaisus. slleglai tbst be wss a dll-
sen of Che western district. The defendants plead-
ed in abaCemeDC and Co Che juriadtctlob Ihnl the
■ult should have been brouRht tn the name of lath
tbe payees, and it tbe time it was (tlveo. FlekllB
was a cltlien of Loutalana ; this soil could not
therefore, be brousbt In tbe District Coun of the
United States.
The residence of s nsrty In another dlstrlet ot a
State than that In wblcb (be suit is bruufht in s
eourt of tbe L'niled States, does not eiempt btn
from the Jurisdiction of the court. Tbe divlilon ol
a State Into two or more dintrlcta cannot attrct ths
Jurisdiction of tbe court on account of citltcnablp.
If a parly Is found In the district In wh cb he b
sued, tbe caes la out of (be p rob 1 bit Ion of tba
Judiciary Art. whleh dectarea that "no civil suM
sha'l tn broaxbt In tbe courts of tbe United States
aitalnat a defendant, hf any original proceas. In
be shall be found at tbe tla«
of aervlna
Ths obje
lection to tbe Jorladlctlon of the court a
: of sn BBBlEDpe of a chase In action, nnleaa a
coold have been giroseculed Id sa d court, for
istfllned. FIcklln never bad snr Interest, aa psy-
r, m the note. Althuiiib tbe note bad bcea glvea
I the nsmea of bulb persons. It nag Cor Ibe sole
nd IndlTldust henrfll of M'Mlcken. and tbere was
a Interest wb ch KIckllQ coold suslgn.
N error to the District Court for th« Eastern
District of I.ouisinna.
The pUintilf in error filed his petition in the
lurt below, averring that he was a citiien of
id resident of tbe State of Ohio, claiming
■that the defendant, Amos Webb, who ["86
was also averred to be a citizen and resident of
the Stat« p( Louisiana, with Mary Ann Smith.
' er own capacity, and also m tutrix to
Catharine Smith and Sarah Smith, minor
children, and heirs of Jedediah Smith, who it
now deceased, ^nd whom tl|e aaid Mary Ann.
>s his widow, now si^rvivea, having, since hi*
leath, intermarried wHb Jra Smith, who ia,
therefore, the tutor of said children, all ol
hom, also, are cftixcni of and resident In tbe
N<>n_Aa to JorlsdIcClen of U. B. courts de-
peodlDS on cltlscDahlp. see coles to 1 L. ed. U. S.
0-10 : 2 I» ed. U. S. 133 i t L. s4. D. 8. 387 : 80 U
U'Miciiiu V. VVkbb n al.
btota «I LoaiaUn*, trcre jointly anil Mverull;
indebted to the pUintiff in tlie aum of C-1,8116.-
93%, besides intereit and coat*. The pUintifT
averred that aaid indebtednesa depended upon
tha following facta:
In 1BI6 the petitioner, the plaintiff, and one
Junes H. Ficklin, formed a copartnership, and
did busineaa in the Parish of Feliciana, in the
SUt« of I.ouiaiana, tmder the name of M'Mick-
en ft Picklin: that on or about Uie 8th of Sep-
tember, ISIT, the partnership was dlssotTed by
mutual consent, aod the stock of merchandiw
then on band the said Ficktin asreed to take to
bia own account, and to pa; for one half of
the same to the petitioner, at the original cost,
with the addition of five per centum ; to con-
clude which agreement the said Ficklin there-
upon executed the note of which the following
St. Franciaville, Sept 20, IBIT.
Ub the lat day of llarch, lSi9, we, or either
of us, promise to pa^y, jointly or separately,
unto M'Micken &, Ficklin, or order, tour thou-
B«nd eight hundred and sixtv-aii dollars nine-
ty-three and one half cents, being for Talue re-
ceived, with ten per cent interent, after due,
until paid. (Signed) James H. ficklin,
Jed. Smith,
AmoB Webb."
The petitioner then avers tliat the note was
made payable to M'Micken & Ficklin; that it
wma in fact, and intended so to be for his (peti-
tioner's) portion of said partncrahip property,
tne same having been mqde sfter said firm had
b«*n dissolved ; the joint name being used
merely for the piftitioner'e sole benefit, the said
Picklin being in no wise a party thereto, ex-
cept, aa one of the abligora.
The petitioner further avers that said Mary
Ann Smith, and her two said minor children
(Catharine and Sarah) now own and voeaenn
27'] 'all the property and estate of said Jede-
di*b Smith; the said Catharine in right of her
coanmunity, and the said children as heirs, and
by reason of which they have became obligated,
in ■olido, to pay to the petitioner tha amount of
Um note aforesaid.
A citation was prayed for In the nana] form,
Serriee was legally made, and on Uie 11th of
February, 183S, Webb, one of the defendants,
appeared, by his attorney, and filed three pleaa
to the jurisdiction of the court The other de-
fcndanta, Mary Ann Smith and her ohildren
(Catharine and Sarah) appeared on the aame
day, by attorney, and filed two pleaa to the
jnrbdiction. The pleas by all the defendants,
with the exception of the first, are the same,
and they presented the same questions tor con-
•ideratioo.
Tha first plea by Webb la, "that while he ad-
aaita he is a citizen of the Stato of Louisians,
and that he was in New Orleans when tha eita-
tioa was served, he avers that he reaidea in the
Pariah of St. Landry, in the western district of
■aid Louiaianai wherefore he prays judgment,
and whether the court will take further cogni-
canoa of the cause aa regards him, or that the
auit may be transferred to said western distriet
of Louisiana, at the cost of the petitioner."
The second plea, whieh if common to all the
drieadanta, avers that aa the noto atated in the
petition ta made payable to U'Mieken * Fiek-
• L.ad.
Un— that, aa the petitioner oan only bring suit
thereon by virtue of some aaaignment thereof,
and protesting that there ia no such assignment,
it does not appear, by averment in the petition,
that aaid M'Micken &, Ficklin, comprising the
payees of said note, could have prosecuted
their suit against the makers thereof in this
court To these statements is added the gener*
al prayer that the court will not take jurisdic-
The third plea svera that it does not appear
by the petition that tlie payees, at the time
aaid not« was made, could have prosecuted, or
that the makers could have been prosecuted, in
the District Court.
Several other pleas appeared in the record,
but they present matter in bar, and as tbey
were not considered by the court below, they
are not stated.
In December, 1S35, the cause came on for
hearing, and the judgment of the court is thus
recorded ;
"The court having maturely considered the
plea to tlie jurisdiction made id this case, now
order that the same be sustained, and that the
plaintiff's pttition be dismissed at his costs."
'The plaintiff prosecuted a writ of [*28
error to this court.
The case was argued at the bar by Mr.
Storer for the plaintiff in error, and the counsel
for the defendants, Mr. Eustia, submitted a
printed argument to the court.
Mr. Storer staled that the plaintiff insisted
that the judgment of the Circuit Court of
Louisiana should be reversed.
Aa the opinion of the court is not clear In
designating the particular plea which was sus-
tained, it ia necessary to examine them all.
None of them will furnish a legal ground for
the judgment of the court below.
Aa to the residence of the defpmlant, Webb,
in the western distriet, at the time he was
served with process by the marshal of the cast-
em district, it is not apprehended thut the fact
can change the relation of the debtor. Or talie
away the jurisdiction of the court.
The Stole of Louisiana is divided Into tivo
districts by the law of 1823. Laws U. S. vol.
7, 173. "For the more convenient transaction
of business," as is stated in the first section,
there is no limitation of jurisdiction; there
ia but one judge to preside over both dis-
tricts, and the aame practice obtains in each.
Tha limitation in the Judiciary Act of 1789
(ch. 20, sec. II), it is believed, is clear on this
question. "If the defendant is an inliabitant
of, or Is found in the district at the time pro-
cess is served, the action is austsinable."
Aa to the aecond plea which is set up by all
the defendants, the plaintiff in error inalsts
tliat, by the law of 1824 (Laws U. S. vol. 7,
316) regulating the mode of practice "in the
courts of the United States for the district of
Louisiana;" it is enacted that the mode of pro-
ceeding in civil causes therein shall be con-
formable to the lau's directing the mode ol
practice in the district court* of that State.
The mode of procedure b.v petition is adopteil
from the State practice, and is. in fact, a suit
in chancery; a procedure derived from the civil
law. and intended to avoid the technicalities
of the ordinary pteadinp^ in courts of common
law. It b immaterial, then, as to the objectkw
• It
Simnn Cocn or thb UiniBt Statu.
Df an aBsIg^iunent to transfer tttls, whoi, in
tquitj, ■ parol transfer, for good consideration,
Besiaea, a chancellor will reforni a contract to
*>•] suit the intentions of tlie partiw. *Tlie
plea of the defendants admits all the allega-
tlona in the petition, and tliej, it is insisted,
make out a clear caae of mistake.
If Fieklin had no interest, he need not have
been made a part;r. If lie had, there waa •
necessitjr that the court aliall have required
that he should be joined in the suit, before tbi
Bnal decree was rendered ; when joined, it
would then be the proper time to ascertain
whether he was subject to the jurisdiction or
not. In no view of the ease was there a neces-
ait; that Ficklin should be made plaintilT, pro-
vided the statements in the petition are true,
and aa such thej must now be regarded.
As Ficklin was not interested, nor could be
made plaintiff on any just principle, it is im-
material where his residence was, or is. M'Mick-
en, the petitioner, now resides in Ohio, nnd it
was never doubted but tlie original parties to a
contract might avail theni?rlves of anji federal
tribunal where their reiiidcnce gave jurisdiction.
That jurisdiction does not depend upon ths
contract, but upon the legsl character of the
parties. It is admitted that when a note is as-
signed, the assii-nnrs must have bnd the ability
to sue in the United Stales Court at the time
of the transfer; and this decision was made to
E' rcvent the transfer of notes in fraudcm Icgis;
} denj to the resident creditor, when he could
not in his own name sue in tlic Circuit Court,
to use the mime of another. Here the plaintiff
tabors under no such disability.
The third plea U similar to the second, and
is answered bv the same argimient which has
been opposed to it. It is broader, however, in
one respect, as it ineluiti's the averment that the
defendants, tlie mnkers of the note, could not
have been sued in the United SUtes Court when
the note was made, or when it was assigned.
As to a part of this matter, the objection is de-
stroyed by the fact tliat the place where the
contract is made does not 11k jurisdiction; and
as to the other, the force of the plea Is not per-
ceived. If the note In its origin acquired no
locality, certainty a subse:{iient tr.tnsfer could
not give it an exclusive situs; besides, as it is
contended, no assignment is set up, for none
was necessary.
Mr. Eustace, for the defendant, lubmitted
the foUowinp points:
1. The plaintiff does not make such aUe|^.
tlons as to give the United States courts juris-
diction of the case, and this is pointed out by
the exception of the defendant* in plea to the
jurisdiction,
SO*] *Z. in a suit against the drawers of a
promissory note, on the law side of the United
States Court, under the Act of 17B9 (sec, 11),
atl the payees must join and allege the facts
necessary to give jurisdiction.
3. In all obligations not under seal, in a suit
between original parties, when the plaintiff in
his own declaration or petition shows alt the
defendants to be naked sureties, there are no
•quities against them, either for jurisdiction,
form ol action, or on the merits.
This I* a suit on a promlssoty aot«, b the
following wordai
«B0
•«t. PrandiTflte, Sept % UlT.
$4,see.93i4.
On the first day of March, 1819, we, or dtbar
sand eight hundred and sixty-sis dollars, nlM-
ty-three and one half cents, being for value re-
ceived, with ten per cent, interett, after due,
until paid.
(Signed) James H. Ficklin,
Jed. Smith,
Amos Webb."
It Is ■ promiasory note, payable to order,
'Nor shall any district or circuit court ban
cognizance of any suit to recover the contents
of any promissory note, or other chose in action,
in favor of any assignee, unless a suit might
have been prosecuted in such court to recovrr
the said contents, If do assignment had been
made; except in case* of foreign bills of ex-
change." I Story's Laws U. S. "iT; Ssrgeanfs
Con. I^w, lie.
It is to be obserred that the suit on this
promissoiy note is brought by M'Micken alone,
although the note is payable to M'Micken t
Ficklin. No indorsement or assignment is al-
leged to have been made by M'Micken t Fick-
lin, but the following allegation is made:
"Your petitioner further shows that aaid ob-
ligation was erroneously made payable to
M'Micken k Ficklin, though in truth and ia
fact said note was dated and executed subse-
quently to the said dissolution of said flrm, and
was made towards and in behalf and for ths
sole and individual benefit of your petitioner;
the joint name of the then late flrm Wing used
and intended for your petitioner's sole benefit,
and Ficklin being in no wise a party, or inter-
ested therein, except as one of the obligors."
*If anything can be gathered from this {*SI
singular allegation, it is that a note intended ta
be drown in favor of Charles M'Micken, and
who alone was entitled to receive the contents,
was bv mistake and error drawn in favor ol
M'Micken ft Ficklin, who, according to previ-
ous allegations of the petition, had been ia
partnership together. 'Tliis allegation, if it
amounts to anything, amounts to an allegation
that M'Hicken is the equitable assignes of the
The claim of the plalnttlf, according to the
color and tenor of his own petition, if on his
own showing it can be maintained at all, either
as to the jurisdiction or the merits, ought ta
have been proaecuted on the equity side of the
court; and )t is obvious that the attorney for
the piafntllT was at a loss how to state his eaaa.
He allies error without showing why it was
an error. The consideration of the note movei
from M'Micken ft Ficklin, to Ficklin, it betas
allied that Ficklin, one of the partners, par-
chased the goods of M'Micken ft Ficklin. as-
less, therefore, the goods all belong to M'MEek-
en, or unless the note was given for M'Hicken's
one half of the goods, noither of which all^ja-
tions are made, the note was properly dram
in favor of M'Micken ft Ficklin.
Legally speaking, the plaititifTs ease ea.nnot
have the benefit of the supposition that he is ■■
equitable assignee, for hia tnft b brought <■
the law side ol the court. Thern ia nothing ia
Poton 11.
H'MjcKBK V. Wns R Um
Ue ahape, fonn, addnBi, pranr or proeeedfit)^
which give it the charActer of & bill in equity;
kod from tbe decision agsinst him, the plain-
tiff haa taken a writ of error, not an appeal,
although in relation to the diatinction* of law
ud equity, proceedings in the eourta of Louiai
ana are of an anomalouB character, and ara
nixed up together without any line of dis-
linetion; k party who goes into the United
States Court in that State, miiat clearly an-
kounce his intention when be teeka to avail
kimselt of the equity powers of the court, in
•ontradiBtinction to its legal jurisdiction.
The case wai decided by tbe district judge on
the mere question of jurisdiction on tbe third
ea or exception to tbe jurisdiction, as
ned la tb< printed record.
Thia plea proceed! on tbe principle that when
a milt is brought in the United States courts on
a promissory note payable to order, against
the drawers, it must be brought either—
lat. Bv the payees, and then there must be
the usu^ allegationa of citiHinsbip to gire ju-
risdiction, or
2d. By an assignee or endnrsre of the payee,
SI*] and in tbli case, besides *tbe usual alle-
ntioni of citizenship, there must be an allega-
Uon that tbe pa^ee, at the time of assignment,
aonld have prosecuted the suit in tbe United
States courts, if no aasigntnent had been made.
3d. That the suit in the present case is not
brought by tbe payees, and does not contain
the allegations necessarr to give jurisdiction.
nie second rule or principle is laid down in
Sergeant, 117, in these words: "And if the
■daintiff claim as assignee, it must appear by
the record that the person under whom be
daims by assignment, might have prosecuted
Ua suit in the Circuit Court, otherwise the
Mart haa no jurisdiction." Seiseant cites
Turner t. Tbe Bank, 4 Dall. B; MonUlet r.
Hurray, B Cranch, 40.
The necessity of tbe allegation that the
Eyeca were noncitizens, or could have brought
a auit at the time of the assignment, is rec-
Snized in Eirkman t. Hamilton (6 Peters,
) ; the principle U directly deduced from the
dootrine of tha limited jurisdiction of the
VidUii BUtea eourts: "Tbe decisions of this
aomrt require that tbe avennent of jurisdiction
^all b« positive, that the decUration shall
•tatte exprcsaly the fact on which the jurisdic-
ticm depends. It Is not sufGcicat that lurisdie-
tloB may be inferred argumentstively from it«
■nmenta." Brown v. Eeene, 8 Peters, 112.
^le right to tbe jurisdiction must rest on
dear, plain and simple averments, on which a
■in^e and simple issue can be joined. If it be
allowed to reat on error in the form of taking
the note. It would require a chancerr suit and
■ full inveatigation of the merits of the case, be-
fvrc it eould be settled whether tbe court had
«r had not jurisdiction. This court has decided
that tbe question of jurisdiction, when oon-
loated, most be settled by a preliminary trial,
Knd before going into tbe merits of the case.
In tUa petition Uiere ia no substantive allc'
gatitm of an aaatgnment of tbe note aned upon,
or if the matters alleged amount to aucb an at-
Icption, there la no all^^tton when tbe ossign-
■mt was made, or that at the time tbe assign-
Bant was made the payees oould have brought
Hit on thi« note in tb* United State* CqurL
M'Hicken is net the pay«s of the note — b*
brings the suit for his own exclusive benetlti
tbe payees are M'Mickrn A Ficklin; if, there-
fore, M'Micken individually can bring suit on
the note for his own benefit, it must be in vir-
tue of some legal or equitable assignment fnxn
the payees.
None such la alleged, and If the matter al-
leged be considered as amounting to an alle^-
tion that in equity M'Micken Is entitled tn an
'assignment of this note from M'Micken [*S3
A, Ficklin, and that is the most favorable as-
pect of tbe ease, still there is no allegation
that at tbe time that assignment ought to have
taken place, M'Micken & Ficklin could have
prosecuted this suit in tbe United Stat^ eourts.
Equitable aa well as legal assignments are in-
cluded in the act. Serg. US, oitea Sere et al.
V. Pitot. 6 Crancb, 332.
The court will disr^rd the vain attempt to
combine an action at law on a promissory note
with a suit in eouity to reform a written con-
tract for alleged error. When practitioners
come into the United States courts in Louisi-
ana, they are bound to recognise the elear and
manifest distinction between legal and equita-
ble rights and remedies.
Tbe court can only consider this suit to b«
what in its forms, etc., it purports to be, vis.,
an action at law on a promissory note payable
to order, against tbe drawers, brought by a
plaintiff claiming in other rights and interests
than as payee of the note.
It is believed that if this case had been put
in the form of a suit by M'Micken t Ficklin
as plaintiffs, for the use of Charles M'Micken,
a form used in some of the States, this form
of action would have been considered aa aub-
stantially an allegation of an assignment by
M'Micken & Ficklin to Charles M'Micken; and
tbe suit could not be maintained without the
required averments. Or if M'Micken k Fick^
lin were alleged to be trustees for Charles
M'Micken, it must have been alleged that both
of them were citizens of other Btatea than
Louisiana.
It may be asserted, without fear of eontra-
diction, as a judicial question, that there are no
such distinct and substantive averments of
facts necessary to give jurisdiction upon which
any issue can be joined. The court will per-
ceive tbe difficulty the attorney of the defend-
under in drawing a plea to the jnris-
The petition is an bermaphrodit*,
neither properly a proceeding at law or in
equity, and cannot seientiflcally be encountered
by any known shape or form of defense. It is
substantially met by the objection that it does
not contain averments and allegations of facts
to give jurisdiction to the United States Court
I a suit on a promissory note.
It Is respectfully urged that tbe course o|
reasoning and construction of the law on subr
jeets connected with tbe jurisdiction of the
~iurt has heretofore been rigorous, and tba(
lis course ought not to be relaxed.
*If suggeetions like the one in tbe [*S4
present case nre admitted as the basis of juris-
diction, and tbe maxim, est boni judlcis am-
pliare juriadictionem be acted upon, there la
danger that fictions similar to the ae etiam amt
QUO minus clauses, which gave universal juris-
oiction to the King's Bench ^nd Exebeqnat
SuPBEUB Coun or thb Uniteb Siatu.
■nd State guvernniculs and jurisdiction will
diiappekri k result wbich ■■ not considered de-
■Irable.
It is to be observed that this aubject and ease
are governed bj a epecial and positive act of
CongreRB, from whicb the inference* of the al-
legatloni neceuarj to give jurisdicttoi) are
dear and precise, and the court will not be
disposed to get around them for the benefit of
this very alnguiar case. It I* called sinsular,
and ao it appears on the statement of the
plaintiff himself.
According to that (tatemeot (by protesta-
tion as to its being the whole truth), Charles
M'Micken and James H. Ficklin were In part-
nership as merchants 1 they dissolved, and
Ficklin takes the goods at a stipulated price;
for the price Ficklin ^ives the promissory note,
the subject of the suit, with Bmitb and Webii
as sureties, obligors in solido; that promissory
note is drawn in favor of M'Micken &, Fick-
lin, and M'Micken now says that this was done
in error, and that the note ought to have been
drawn in hii favor individually. He does not
attempt to show why it was an error; on the
contrary, if, as is alleged, the goods belonged
to M'Micken & Ficklin, the representative or
price was properly made payable to the part-
nership, for each partner owned one half of the
goods, and was entitled to one half of the
price.
Had it been alleged tliat this note was given
for the one half of the goods which belonged to
M'Micken, and was by error made payable to
M'Micken & Ficklin, instead of M'Micken, a
reason could have been given why it was an
error to make it payable as it was drawn, there
would have been a prima facie case of equity
to entitle M'Micken to the jurisdiction of the
equity side of the court, though it is believed
that even with such allegations the right to the
jurisdiction should be maintained, for it in-
volves too complicated a preliminary investiga-
tion; and as to Webb and Smith, naked sure-
ties, there are no equities.
But no such allegation is made. The allega-
tions go to show that the goods belonged to the
partnership, and of course the note for their
X5*] *price did also belong to the partner-
ship. Tliis transaction, it Is alleged, took place
OD the dissolution, and as a part of the dissolu-
Oon; and it is strange to allege error without
showing In what respect, and for what reason
Smith and Webb are mere sureties, as Is
shown by the following considerations: 1st.
This contract is a promissory note, a simple
contract, and not a sealed one. 2d. The suit is
between original parties to the note. There-
fore, the considerations of the note may be
inquired into.
A^in, the plaintiff himself alleges that the
^aenee from this allegLtion that Ficklin was
principal in the note, Mid Smith and Webb
volvsd in a cloud, and feel disposed to favor a
further development of it, or consider the ab-
jection to the urisdiction as captious, and
might feel more at ease in deciding, if any lup-
posable explanation of the transaction vers
We will then suppose M'Micken & Ftddia
to be in partnership; they agree to dissolvsi
Ficklin buys the stock of go«js, of which, a*
partner, he Is one half owner, and which is
estimated at 19,733.871, vie., twice the amount
of the note; for M'Micken's one half Ficklla
pays cash. Ficklin is himself the owner of tht
other half; M'Micken is the liquidating part-
ner, and undertakes to collect the debts due t«.
firm might not be suflicient to pay the debt do*
by the firm. In such case Ficklin would havs
to bring back what he took out. To mept thit
possible contingency, Ficklin makes his Bote^
with Buretiee, for the amount of his own one
half of the goods in favor of the partnership,
payable at an Interval within which it was sup-
posed the partnerehip affairs would be liqui-
dated and settled, and places it in the hands of
Ihc liquidating partner. i
Such a solution explains the whole transsc- |
tion. without supposing any error in any party;
and the decease of Ficklin, immediately after- I
wards, would explain the attempt and peraever- |
ance of M'Micken in desiring to extract this
motley from the sureties, without showing any
setllement of the partnership affairs,
*lt will be observed thiii is a very stale ['St
trsnaaetion; not that M'Micken has slept on bis
supposed rights (for this is the tenth suit
brought on this identical note; see for one of
them. Walker v. M'Micken, 9 Martin's Reports,
1B2) but that he has never dared fairly to
bring his case before a court of justice, and
has, therefore, uniformly been driven out of
court, or has discontinued the moment a ded-
Hion was about to be made.
The citisens of Louisiana hold their property
and enter into contracts under the ductrinci *nd
rules of the civil law, and prefer having tben
passed upon by their domestic tribunals. If
Ibe- plaintiff could, in any manner, have made
such allegations as would have entitled him to
the jurisdiction of Ihe United States Court, it
was open to him, after the exception was filed,
to have made such amendments to hi* petition,
consistent with the facts uf the case, as wonM
have entitled him to the b-ncflt of that juris-
diction. Hia not having done so is eonelmiv*
that he can make no better statement of his
ease in that respect than is now on file. That
Ficklin Is dead, is a fact not alleged, is not
judicially known to the court; nor if it vrr*
alleged would it avail, for there is no gurvivor-
abip of action, even among commercial partners,
by the laws of Louisiana. Crosier v. Hodge. 3
Im. Rep. 358. M'.Micken cannot, therefore, sue
for this note as surviving payee. He elsims
the contents in his individual and private c»-
'The conclusion Is, that for the reasons and
on the authorities before cited, the plsintiff.
who sues the defendants ss drawers of a mon-
issory note payable to order, and who u not
himself the payee of that note, and doss not
Peten 11<
UK.
U'MlCKKN I
dalm In that caparlty, haa not nisde iiti^h alle-
^tions anil kvernienU, and in Buch form and
manner, as to show himself entiilril to bring
'he auit in the court of the United Stales. If
thia conflua^on it correct, the judgment of the
wurt ImIow win ba confirmed.
Mr. Juatice Thompson delivered the opInfoD
af the court:
This ea<ie comes before thti court on a writ
tt error From the District Court oF the United
States in and for the Eastern District of the
State of Louisiana.
The suit in the court below was eommcnced
bf petition, in which the cause of action is net
cut informally, but Bubslantially, as followa:
That the defendants are jointly and severally
17*] indebted to the plainttfT *in the sum of
f4,80a.93, besides interest and costs. For this,
to wit, that some time in the year 1815, the pe-
titioner and one Jamus H. Picklin formed a co-
partnership and did buatneiiS in the Parish of
Feliciana in the State of Louisiana, under the
name and Srm of McMicken & Fieklin; that
on or about the Sth day of September, 1917,
uid partnership was dissolved by mutual con-
sent. That at the time of such dissolution
there was a quantity or stock of goods on hand,
which Ficklin took and purchased at cost with
Bve per cent, addition, and for the payment o(
one half of said stoclc of goods, fie gave to
the petitioner, a promissory note, dated the
80th of September, ISIT, and payable on the
1st of March, 1SI9, to the order of M'Micken &.
Fieklin, for the sum of $4^80.93, which note
was executed by said FIcklin. Jedediab Smith
(by the name of Jed. Smith), and Amos Webb,
by which tbey promised jointly and severally
to pa.y the aforesaid sum, according to the
terms of said note, a copy of which is annexed
to the petition. The petition avers that the
note was made and dated subsequent to the
dissolution «f the partnership, and althougli
owde payable to M'JIicken & Fieklin, it was
made for the sole benefit of the petitioner
ICAIicken, and that Fieklin was in nowise in-
terested therein except as one of the obligors.
The petition then sets out the death of Jede-
diab Smith, and here the other defendants be-
eome bound to pay the note. It also contains
an Averment that the petitioner is a citizen of
the Slate of Ohio, and that the defendants are
dtiaens of the State of Louisiana.
To this petition several pleas to the jurisdic-
tion of the court are interposed. The defend-
ant Webb, tn one of his pleas, admits that he
ia ft citizen of Louisiana, and that he was in
Hew Orleans when the petition and citatioa
werv served upon him ; but avers that he re-
■idea fa the Parish of St. Landry, in the west-
em district of Louisiana, and denies the juris-
diction of the court on this ground.
The second plea in abatement is founded on
the fact which is set out In the petition, that
the note in question is mode payable to
H^icken & Fieklin, and the suit Is in the
name of M'Mickrn alone, without showinft any
assignment bj> Fieklin, or that at the tloie of
making said note. M'Micken & Fieklin could
have prrweckited a suit upon it in this court.
The third plea alio^es a want of jurisdictioll
In the court, bemuse the petition dopa not al-
lege that st the time at assigning mU note tfai
payees might have prosecuted the maker* !■
this court.
*The other defendants also interposed [*S8
pleas to the jurisdiction of the court, upon the
grounds substantially as set forth in the two
last pleas of Amos Webb.
The court below sustained these pleas to the
jurisdiction of the court, and dismissed the pa-
Tbis petition, although informal in many r«>
spects, must be considered ss the comraenea-
ment of a ^^iiit at law, according to the course
of proceeiiiTin.s in the courts of the Gtste of
Louisiana, and is properly brought up here by
writ of error. The objt:ct of Che petition is
simply to set forth the cause of action, and
pray.ng that the defendants may Iw cited In
court to ansiver to the demand set up against
them; and all that is recjuired in such petition
according to the practice in Louisiana is, that it
should contain a clear and concise statement of
the object of the demand, or the cause of action
upon wh'ch it is founded.
The ijuestion presented by the first plea to
the jurisdiction of the court is whether Webb, a
citizen of the State of Louisiana, who resided in
the western district of that Slate, could be sued
by a plainlilf who was a citizen of the State of
Oh o, in the District Court of the Eastern Dis-
Iriet of the State of Louisiana- The residenoe
of Webb being in the western district of Louis*
iana, could not affect the jurisdiction of the
court. The plea admits that he was a citizen of
Ixiuisiana, and the act of Congress gives juris-
diction where the suit Is between a citisen of
the Slate where the suit is brought and a citi-
zen of another State; and the division of a
State into two or more districts cannot alfect
the iurisdiction of the court on account of citi-
ZHnship. This plea admits that the petition and
citation were served upon him in New Orleans,
which takes the case out of the prohibition In
the Judiciary Act, that no civil suit shall ba
brought in the courts of the United States
against an inhabitant of the United States, by
any original process, In any other district than
that whereof he is an inhabitant, or in which
he shall be found at the time ol serving tha
writ.
The second plea to the Jurisdiction of the
court Is founded on the assumption that the
plaintilT M'Micken is to be considered aa tha
assignee of M'Micken &, Fieklin of the note in
question, and that the petition does not allegn
that they could have prosecuted a auit upon it
in the courts of the United States ; and that the
case therefore falls within the prohibition in the
Judiciary Act: That no District or 'Cir- [■S«
euit Court shall have recognizance of any suit
recover the contents of any promissory note,
other chose in action in favor of an assignee,
less a suit might have been prosecut^ in
such court to recover the said contents, if no
assignment had been made, except in cases of
foreign bills of exchange. Laws U. S. 2 voL
ei.
But the cause of action and the right of the
plaintiff to sustain it do not place him in the
character of assignee. Picklin never had any
interest whatever in the note, according to ths
allegations in the petition; the partnership had
been dissolved before the note in question was
given. Tlie consideration thereof was ITMlck-
tiUPBEui ColiKT Ur THE UKinm Stati
fli'i itur* of the *tock and goods on hand »t
tiM time of the dissolution or the parlnrrBliipi
tod the petition avers that although tlie note is
Siren in the name of tlie late firm of Al'Mi
Fieklin, it wai for the *oIe and individual
twneflt of the pctition<;r, and that Ficklio
in nowiae a party or intereited therein, except
■• one of the obtigora; there woa, theratore, no
interest which Fieklin could aaiign, and the ob-
jection Is one purely of form and of a mere
technical diaractcr; which ought not to be
noticed according to the course of proceedingi
In the courts of Louisiana. The facts set forth
in the petition may well be considered as ar
averment that the note was given to the peti'
tioner, M'Micken, under the name and descrip-
tion of M'Alicken A Ficklio. And this view ol
the case diuposes of the matter set up hy the
other defendants in their pleas to the juri»die-
tion of tlie court, as well as of that which ia
wt op in the third plea to the jurisdiction of
the court.
There are other pleas to the merits Inter-
posed, de bene esse, by all the defendants, and
which have not, of course, been In any manner
considered or disposed of bj the court below,
U the pleas to the jurisdiction of the court
were sustained and the petition dismissed. Nor
does the record contain the neceesary mattsr
to enable this court to dispose of the case upon
its merits; some of those, turning upon ques-
tions of fact, the evidence to sustain which not
all appearing upon the record; and the c.
must therefore necessarily go bade for further
proceedings on those pleas.
The judgment of the court below is accord-
luglT reversed, and the cause sent back for
further proceedings.
This cause came on to be heard on the tran-
script of the record from the District Court of
ths United States for the Eastern District of
40*] 'Louisiana, and was argued by counsel;
OD eonsideration whereof, it is now here or-
dered and adjudged by this court that the
judgment of tbe aaid District Court in this
eause be and tbe same is hereby reversed, and
that this cause be, and the same is hereby re-
manded to the said District Court for the fur-
ther prooeedinga to be had therein according to
law and justice, and in conformity to the opin-
ion of this court.
JACOB BURNET.
Province of jury — elder legal title — when entry
is ouster— intention — adverse possession —
punctuation last resort in interpreting in-
•trument.
Ejectment. Ohio, It it the eRtfasft* nravlm
of the Jury U decide what facts sre proved br «»
Mtent evidence. It Is ttialr prorlnee ta Judn e(
the we Kbt of testlmoaj as tending, Id a ireatse »
leu degree, to prove the facts relied — -
s lot of ground givsi s
.. .ho Ip„l ^[„. .
wftb the
Irgsl title
right of possession, as i
possession thereof, co-
which continues ontll there shstl be an o
sctual adverse possession, or the right of posw
slOD becomes In some other wsjr bsrred.
An entrr hj one od the land of another, la or <i
not an ouster of the legal poaiessloD arising tnm
the tlUe, according to tbe rnteDlloD with whlcli It
is done. If made under claim or color of rlgh^ li ia
oere tregpnss. Is
idea the eulrj sol
It Is well settled that to
■oBsesilOD there need not be , „ _
*■■"" ' made; It luISceB tor this pui
ose that visible n
Whe™
la c
building, or
trclsed I
id eolor'of title.
tt of ownership have been done Dpoe
I, which from their nature indicate a noiorfci»
claim of propertT Id It. and are coDtlnoed toy Vwta-
tjr-pna years, with the knowledge of en advera*
claimant, wlthoat Intermptlon or sn adverse enlif
hv him for twentv-oae years; saeh acta are evIdcoM
of so ouster of the former owner, and o( an accosl
adverse possesalou against him ; If the lurr shall
■'■-" ' ■ bf. of s
think that t:
talten and hi
1 occupal
.tion o
Inoed claim of t
;f,W
be won
^ ..men he claimed ' "
Id not eierciic over piopertj which h
-d by which
Punctuation Is a most fallible
to Interpret a writing; It ina; b.. .„„.,^„ ,„ „„—
all other means fall: bnt the court will Drat take
the ii
a foor
apparent oa
„-tsln Its true meaning. It that' ll _,,_ _
Jud claltj Inapectlng it, the punctuation will not be
suffered to change it.
An adverse possession for twsntj-one veara un-
der claim or color ot title uerelv void, la s bar U
a recovery under an elder title Vy deed ; although
ths adverae holder ua; have bad notice ol the deed.
' N error from the Circuit Court of the Dia-
triot of Ohio.
The plaintiff in error Instituted an action of
ejectment In the Circuit Court of Ohio at De-
cember Term, 1834, against the defendant, t«
recover a lot of ground in the city of CindnnatL
Both the plaintiff and the defendant claimed ti-
tle under deeds from John Clevea *Syinmes,[*4S
the original grantee of the United Statea,
for all the land on which the city of Cioeiaiiali
erected. The deed from Symmes, under
which the plaintiff asserted his title, was Axecn-
ted June Ilth, 1768, to Samuel Foreman; the
deed from Symmes to the defendant, for tiM
lot, was dated May 81, 1803. An adversa
--— for twenty-one yeara and upward!
eiieo OB aa constituting a sufficient lenl
under the statute of limitationa of Ohitt.
«Be and the evidence are fully atated ia
the opinion of the ooniti.
Nora. — As to adverse possession, rsqalsltaa of,
•se note to Itlcard v. Williams, T WbsaL e9.
As to disclaimer b7 tenant at landlord's title,
■e« note to Wllllson v. Wstklns, B Pet 43.
Ths oecupsncr necessary to constitute advarse
possession. Ths statutes of the several Btates
oftentimes daflne what ths character of the occu.
poocjt of lands shstl be. In order to render the enjof-
asnt thsreot adverse. As a general rule, a poaoee-
tfen to be adverae moat be marked bj definite bound.
'«■. And wbsrs tbers Is no claim of title found-
< a mitten InstmBsnt, or a ' '
6 Cow. SIO: Coming v. Tror Iron and Nail rao-
tort, 114 Bs>b. SZ9 ; Becker v. Van Talkcnburgh, 9
N. T. Sie ; Brande v. Ogden, 1 Johns. IBS : Jock-
son V. Waters, 12 Johns. 365; Jaekson v. B>rfa4,
T Wend. 62.
The Incloaure Deed not be an artificial fenea as
other erection. A river, monntatn, ledge of rockK
or other natural obstncMon. cnlBclent to brcvcai
the tatraitoa af eatUe. is eBooi^ 8t Looia v.
P«len SI.
Tax I^uot or Ewuia y. Bubhit.
Tb« cBOte wu tried kt July Term, 1835. knd
« Teidict under tlie inatmctiona of tii« court,
iraa found for the defenduit, on which a ]udg-
iD«nt WK* rendered. Tb* plaintiff tendered k
Mil of exceptions.
The charge of the eonrt waa aa tollowii
The plaintiff liaving ahown a deed for the
premiseB in controrermf older in date than that
which was given in evidence hy the defendant,
on the prajrer of the defendant, the court in-
atructed the jury that his actual poHBesaion of
the lot, to protect hla title under tlie statute of
limitatiana, must have been twenty-one yeitrs
before the commencement of this euit. That
auing for trespaaa on the lot, paying the taxea,
and speaking publicly of hia claim, were not
auflicient to constitute an adveras poKsesaion.
That any poasession short of an exclusive ap-
propriation of the property by an actual occu-
pancy of it, BO M to give notice to the publia
and all concerned that he not only claimed ths
lot bat enjoyed the proflts arising out of it,
was such an adverse possession as the statute ,
mjuirei. That to constitute an adverae poD- .
•esaioa it is not essential that the property
■hould be inclosed by a fence or have a (<■■-"-
ing-houae upon it. If it were so situated
admit of cultivation as a garden, or for any
other purpose without an inclosure, and it waa
BO cultivated by the defendunt during the above
period, it would be sufficient; or if the lot con-
tained a coal mine, or marble or stone quarry,
and it was worked the above period by the de'
fendaat, he having entered under a deed for
Uie whole lot, tuen an occuparty would be an
advarae possession, thoug)i the lot had no dwell-
Ing-hoiue upon it, and was not inclosed by a
fence. And also, if the lot contained a valua-
ble sand bank wliicb was exclusively possessed
and uaed by the defendant for his own benefit,
by using the ssnd himself and selling it to oth-
er*, and his occupancy of the lot in this man-
the lot, it being situated 'adjoining to the [*4 L
lots on whicb the defendant actually resided,
escept the intervention of a street which had
not been graduated and opened so as to be used
by the public ; and aaid lot preserved the view
of the defendant from his res'dence unobstruct-
ed, and such possession was continued the time
required by toe statute, it would constitute an
adverse possession For the whole lot, tlie de-
fendant having entered under a dred as afore-
said. The court also said to the jury the taw
had been settled in Kentucky that if a person
residing on a tract of land should purchase by
deed another tract adjoining to it, hia posaea-
sion would not be extended over the tract thui
purchased; and that this seemed to be reason-
able, and waa sustained by the doctrines of
possession as gentTsUy recognized. That had
the lot in controversy adjoined the premise!
on which the defendant resided, the case would
come within the rule; but that a street inter-
I vened between the r,.-9idence of the defendant
and the lot in controversy, which would pre*
vent an application of the rule.
Mr. Storer, for the plaintiff in error, contend-
ed that the Circuit Court had erred in charging
the jury that the evidence adduced b^ the de-
fendant established an adverse possession of tht
lot of ground in controversy for twenty -one
Z. That a part of the charge was erroneous
in having laid down law as applicable to a sup-
positious and different case, and in so stating
it as that it was applied, by the jury, to the
case on trial.
The substance of all tbe testimony is this:
The defendant, Jacob Bumet, claimed to tw
I the owner of the lot under a deed dated in 1804.
He has occasionally driven persons away from
Oennan. 29 Mo. SB3 ; 7ick>oB v. Ralslesd. B Cow.
3ia. 220, 221.
in New York, adverse ddbhssIod. founded upon
Btaallai
^t, Jo<feiL -
■ been usqbIIt cultirstpd or Im-
It bis been pratected by a sub-
- -, S. Where, although not In-
I. It has been uspd tor the supplj o( luel, or of
(cacLnK tlmtier, either far the purposes hi hus-
bandrr, or for tbe onllnscj use of tbe oci'Upant;
J n t. — . ■. '--a. or alnile lot bma been
— . — portion thfreot i»" not
nclOHd. accordlne to tbe am
-'— rwl. or uninclowd. sccordlnB to the imiaf coiime
. cuBtam ot (hs eonntrj is deemed to hv btra
•eenpled. N. Y. Cade Civ. Pro. sec.
V. flplaola, M N. X. STT ; Uoaro v. uen:uHni.,
Bartk SSS, 402: Towle v. Remseo. TO N. Y. S
US; Pope V. Hsoiosr. T4 N. Y. 240: DooUttte
Ties. 41 Barb. 181.
Certainly, publlelly and nocorletv are tbe ess
Ual elements of an adverse dosspssIoo. Laqc
Oonld, 10 Barb. 264; Doe v. rampbell. 10 Job
4TT', Jackson v. Wheat 18 Johns. :J3S.
A fence 1* not lodlspenssble to constitute poaf
SlOn. Uanr other acts equilT
la asaert ownersblp and pnsiesaion, iocd as enter.
toa OB land and makluK Improvements thereon,
n!slnc a crop of com, fsItiOE and selling trees
Ibtreon under color of htte. An actual residence
•a the land, or a pedis posseesio of it b; an In-
dotar*. are not absolutely neeessarr '
a poHfltsloD adverae. Ellitcoit v. >i
412: Uosa v. 8eott. 2 Dana. 2TB.
Wbm an Mtry la made upon landa
** *"■-, tbe aame may be held '~ -
«vS?V
arl, 10 Pet.
1 coostnietlri
fe;
Imple c
m^ «■■■!«, wmnv^ ana Doiorioos. Dsflev v,
mtf, t Hott * H«C. MS : Oltaaan v, Hardn, 1
Bar. « 1. MB ; Bay t. Parry, 1 Lttt ITl ; Shsarar
Where one claims br poasesslon alone, without
showing enf title, or wllbout color of title, he mnst
Jobaa
V. Slmpaoo. 1 Teni
{. « R. 202.
458;
Payment of loses on 1
posseaslon, altboiiKh In some States It la regarded
as evidence of a claim and the eilent of soch
claim. Berber v. Willing, 10 Watta. 142; Naglee t.
Atbrtght, 4 Wtieat. 291 ; Ewing t. Burnett. 1 Uc-
Lean, 266: Hookenburg v. Snyder, 2 Watts * 8.
240; Roger v. Benlow. 10 8erg. & R. SOS: Cor-
Ufliua T. Qlbaon. 1 Dnlcb. 1 ; Seed v. IHeld, 10 Vt.
672 : Draper v. Shoot. 20 Ho. 107 ; nrrar v. I'm-
senden, SE N. H. 263.
Bnt a conatructlre poasesston of a grant ot a
tract may be adverae, where Ibe party baa color of
title, and Is In the actual possession of ths residue
ot tbe tract where the writing, iclled on aa evi-
dence of title, incindea the land not oeenried.
Wonda V. Banka, 14 N. 3. Ill; Jadsoo v. Osbol
1 Coa
UcRae v. Wllllama, 7 Jonei-a Laa^
4S0i Tbompaon *. Cragg, 24 Tex. sn.
SuPBBuK CouBT or TBB Uhitd Statcb.
Uw lot, B^d prttVBnUd sand-dlggcn from ckiry-
Ing off Mnd. In 1820 he leued the privilesc
of digging UDd. No fence was ever built
kround the lot, but, an tbe eaatT%Tj, the lot
wu laid open «8 k eotomon, and was paased
over daily bj the witnesBci. Mr. Burnet has
faia residence oa the appoeite side of the atreat,
and hia own lot, opposite to this, on which was
hia dwelling, waa fenced in. He has paid taxes
on the lot aince 1310, and bu once or twice
brought auit agalnat persona for trespasaing on
the lot, and hat always claimed it as bis own.
If thcae facts constitute an advsrte ppsiei'
■ion, then the judgment ia right. The evidence
being all befoie the court, in the bill of excep-
tion*, whether they constitute or amount to an
adverse possession, is a question of law. "Ad-
44*1 verae possession la a legal idea; 'admits
of a legal deHnition of legal distinctions, and
Is, therefore, correctly laid down to be a ques-
tion of law." Bradstreet t. Huntingdon, S
Peters'* Rep. 438.
In the absence of proof of any actual poa-
assaion of the premises in controveray. the law
e resumes a poasession in the person haviug the
igal title; as the plaintilTs lessor shows the
elder title in this case, and the law having at-
tflclied to that title a constructive possession,
the proof of an actual adverse possession ia cast
upon the defendant. The law raises no pre-
Bumptions against the elder title, it will not
presume that anything has been done; hence
the defendant must show, beyond any reaaon-
able doubt, firat, that there has been an ad-
verse possession; second, that adverse poases-
■ion has continued for at least twenty-one
years. S Cranch, 250; S Peters, 355; 3 Wendell,
1S2; 4 Mass. 417; 3 Johns. Ca. 124; 10 Serg.
ft Kawle, 305.
First. There muat, then, havt been an ad-
verse posiieiision; and here the inquiry will
be what couatitutes such a possession, so as to
create a ba.i to the recovery of the true ownerl
To constilute an ouater of him who was
seised, the dcprivor must have the actual es-
clusive occupation of the land, claiming to hold
It aeainst him who was seized, or he must ac-
tually turn him out of possession. 4 Mass.
Rep. 41S; 1 Mass. Rep. 483.
"Adverse possession must be narked by
definite boundaries, and be regularly continued
down to render it availing." B Cowen, BM; 10
Johns. Bep. 477. "The Act of Limitation does
not prevent the entry of thu owner of the
land, and brineing an ejectment at any time,
unlesa when there has been an actual, con-
tinued visible, notorious, distinct, and hostile
possession for twenty-one years." 8 Serg. ft
Rawle, 23.
Rights, barred by limitations, are where
there la an actual, exclusive, adverse posses-
sion; definite, positive, and notorioua; marked
by definite boundaries; and uninterrupted and
eontinued possession (or twenty-one years." 3
Serg. ft Rawle, 204; 1 Ear. ft Johnson, 64S; S
Bar. ft Johnson, 266. "The poaseaaion that
•rill ^ve a title, under the statute of limita-
tions, must be an actual occupancy, a pedis
risaasio, definite, positive, and notorious."
Satt ft McCord, 343.
■Egging a canal, and felling trees, an not
mch acta of posaeasion as may be the basis of
Uw praaeriptloB of thirty jttn." 18 Martin's
Rep. 11) S Hartin'a Rep. 123; AppanAK U
Adams on Eject. 498.
'"The occasional exendse of domin- [*4t
ion, by broken and nnconneeted aeta of owi-
ership, over property which may be made net-
manently productive, is in no respect calcu-
lated to assert to the world a claim of right)
for such conduct bespeaks rather the fltful li-
vaalons of • eonscioua trcapaaser, than the esk-
fident claims of a rightful owner." 2 N. Car.
lAW. Rep. 400. "This title by possession, so
as to defeat a grant or other legal conveyanM,
Is never to be presumed, but muit be actuaDy
proved and shown. In order to rebut a prior ti-
tle. In the same manner and with the aamc de-
Bay's Rep. 491.
"It is a settled rule that the doctrine of ai-
verse possession ia to be taken strictly, and not
to be made out by inference, but by clear sad
positive proof. Every presumption ia In fanr
of poaaessfon in subonlinatioD to the title of tbs
true owner." 0 Johns. Rep. 107; 8 Johna. Bm.
228; S Pickering, 134, ISS; 8 Johns. Caaea, IW;
1 Cowen, ess.
Again. There must not only have baea sa
adverae possession, bnt auch possession must
have continued during the period of twenty-
one years.
"Thie posaesslon must not onlf eontinoa,
but it must continue the same in point of local-
ity, during the prescribed period of time, sof-
ficient to constitute it a bar; that ia to aay, a
roving poasession, from one part of a traet of
land to another, cannot bar the right of entry
of the owner upon any part of the land whin
had not been held adversely for twenty-oM
years." Hall's Law Journal, 26S, 260. "Tb*
possession muat have so continued that at aoj
time an ejectment might have been brought
against an occupant on the land, to try tbt
right of entry," 3 A. K. Marshall's Ky. B*^
368.
"If there is any period, during the twnty
years, in which the person having the right of
entry could not find an occupant on the land,
on whom he could bring and sustain his eject-
ment, that period cannot be counted against
him." Braxdale v. Speed, 3 A. K. MarahaUl
Rep. 360; 4 Bibb, 267; 1 A. K. Marshall'! Rep.
106; Smith v. Mitchell, 1 A. K. MarshaU'a R^"
208.
"An occasional use of the land, elthar by
cutting down and taking away trees, digging
or taking away stone or sand, or making sugar
once a year, will amount to an adverse poa
session.''^ 3 A. K. Marshall's Rep. 100.
"In the case of Smith v. Mitchell. 1 Marsh-
all, 208, the court 'determined that the t*4(
appellee, having occasionally, for upwards of
twenty years, made sugar at a camp erected by
him upon the land fn contest, did not confer
upon him such a possession as would bar thi
plaintiff's right of entry." t 3. J. Marshall.
Where the junior patentee. In •neheaa«,hai
'■' r Battled npoo nor i ..... .t.
patentee, in such c
neither Battled
nor improved the land, the
ueh case, "haa a right t«
considtf each act of occupation aa a mere tan-
porary intrusion." 3 J. J. Marshall, SG2.
IdST
The I
Um defoduit on the trial did not eitaUiili fta
■dverse poueBiiaoL, and that the ooiut might m
to hare inatrDCted the jury. Taking the whole
evidence together, and drawing all the fair la-
nl inferencea from it. It U not pnned that the
defendant has been in the eontiniud advene
posieeiion of the lot in eontroTera; for twentj-
one jeare. There is nothing more than evi-
dence of oeeaBional acts of ownerahlp over tlie
property. If cutting down tree*, making eu-
pu'< digging eanali, etc., on the land, are not
evidence of an artual adverse posaeeiion; how
an the occasional drawing of a load of Band,
or driving people away from the lot, be consid-
ered aa mote convincing evidence of an actual
It ia not contended that. In order to eonati'
tote an actual adverae poBseaBion tbe lot miut
be inclosed bj a fence; on the contrarj', it ia
admitted that a fence it not actually aecetsarj
ft ia merely evidence of the fact of occupancy;
but it is the actual occupancy Itself, con
nected with the claim of title, that eonatitntea
the bar. I^nd may be occupied without a
fence, and we know that in some countries,
thousands of acRs of land are occupied and
tilled although not under fence. In many part*
of Europe, at this day, this is the case. But
the fact of the land being occupied, and cropD
annually gathered, shows that an exclusive
ownership is claimed by some one; and if it is
not the true owner that is bo using the land, it
becomes bim to assert his right in time. So it
b willingly admitted that a lot may be ao used
and occupied for a period of years, without
fencing, as to bar the right owner. For in-
stance, a lot may be used far a coal or lumber
yard; the continually keeping such coal or lum-
ber on the lot may aa conclusively show an ad-
verae holding as though a fence waa bultt
around it. But because there may be inch an
adverse occupancy without fence, it doea not
follow that every pretense of ownership, or ev-
en > succession of trespasses In digging or per-
mitting others to dig a load of sand on the lot,
47*] will oonatitute an adverse holding. 'Ad-
mit the doctrine to the full extent, aa contend-
ed for by the defendant, and it leads to this re-
ault, that any person may, by trespassing on
hia neighbor's lot or land occasionally, in the
eonra* of time become the owner of that land,
^ply the same doctrine to wild land, and no
man can safely own such property. Vacant
lota In town are not usually inclosed, and so
long ma the public are permitted to paaa over
tbem, ao long as they lie in common, it appears
that it would be extremely dangerous to admit
a title by adverse holding. If a man holding
anch property will rely upon a mere possession
imder a defective title, it ia surely not requir-
ing of him too much (where no actnal oceu-
Mncjr takea place) in compelling him to erect
Ilia fence, thereby giving all the world to know
that he claims, to the exclusion of all other
ewnera. The decision made by this court in El-
Ucot and Pearl, 10 Peters, 414, sine* the trial
of tbia cause, baa been examined; the court arc
■et asked to interfere with that decision, noth
of land can only be proved bj the
a fence, or actual residence, or actual poaaes-
sion must be proved, withont aithai leoea or W-
not, therefore, aSect the present controversy.
2. As to the second point, that the charge of
the court was incorrect, in atating tlie law of a
case different from that submitted to the jury,
the judge said: "If the defendant paid tlic tax-
es for the lot ejected, and prosecuted trespass-
era on the lot, it being situated adjoining to the
lot on which the defendant actually resided,
except the intervention of * street, which hod,
not been graded and opened so as to be useful
to tbe public; and said lot preserved the view
of the defendant from his residence unobstruct-
ed, and such possession waa continued the time,
etc., it would constitute an adverse poHscssion."
This appears calculated to convey the im-
pression to the jury that the mere design on
the part of tbe occupant of a. house, on an ad-
joining lot, not in dispute, to preserve an un-
broken view to his residence, may be eonaid-
ered aa tending to establish an adverse posses-
sion of the lot in diaputc. Surely, such a posi-
tion cannot be sustained upon any sound prin-
ciple of law. If once admitted, it would
place all vacant town lota in the utmost jeop-
ardy. Nothing is more common in towns, par-
ticularly of modern origin, than to have a
house surrounded with vacant lots; and if an
actual occupation, or an inclosure can be dis-
pensed with merely on the ground that the
claimant 'intended to preserve the view [*48
to a house on an adjoining lot, «r a lot on the
opposite side of the street, it is tantamount to
establishing the proposition that neither ac-
tual ouuupancf , nor an inclosure is neceBsal; to
constitute an adverae possession of a dty lot.
The charge of the court, therefore, waa en-
tirely incorrect, and must have had an influence
with the jury unfavorable to the plaintilTa
Mr. Ewlng, for tbe #ffendant. The point
presented by the eounael for the plaintiff in er-
ror, that the establishment of a subsequent ti-
tle derived from tbe same source aa the prior
title cannot affect the prior title, was not pre-
sented in the Circuit Court, and it cannot then-
fore be made a part of tbe case in tliis court.
The whole question on the trial of the
cause was the effect of the adverse possession
asserted by the defendant, resting it on the
statute of limitations of Ohio, upon the title of
the plaintiff by deed, admitted to be prior in
date to the deed under which the defendant
ako claimed.
Under the statute of limitations of Ohio, and
under the general law, the Circuit Court had
no right to exclude from the jury the evidence
of possession. Some of the witnesses expressly
say that the defendant had possession of the
lot for upwards of twenty years, and thus tbe
court had no right to weigh tbe evidence. It
was not tbe duty of the court to say the evi-
dence did not make out the case.
It b true, title by possession is a legal title;
but facts must be proved to make it out.
Tbe court waa bound to state what facts would
make out such a title, and they did so.
Did the court lay down the law correctly in
favor of the plaintiff and the defendant in the
charge to the jury! All the statements of the
law are right, and the plaintiff has therefore no
right to complain. It is said there cannot ha
MT
BaraEMM Covbt or tarn Usmo 8/matt.
1S37
two MtHtmstlTO poMMBlona of the Mme prop-
en;. Ibi* may be true, but the defendant
dou not claim a ooDitruotiTe poEseMion, but
•a actual posBeuloo; and ui ejectment might
alwaji have been brought against bim by tbc
plaintlfTs leaaee.
Hr. Storer, in reply, inaisted that aaking a
murt to charge the jury whether the whole
CTidenoe was lufflcient to eatabliah an advene
poweaaion, and asking iDatruetlODB of the eourt
on the whole evidence, an the aame aa a de-
murrer to evidence.
4«*] *Hr. JuittM BaUvin delivered the
opiTiion of the eoart;
In the court below, thta waa an action of
ejectment, brought in November, 1B34, by tbe
leasor of the plaintiff, to recover poHBeraion of
lot No. E09, in the city of dncinnati, the legal
title to which ia admitted to have been in -John
Clevea Symmea, under whom both parties
claimed; the plaintiff, by a deed dated 11th of
June, 1798, to Samuel Foreman, who, on the
next day, conveyed to Samuel Williams, whose
right after his death became vested '
Elalntift; the defendant claimed by a
imeelf, dated 21st of Iday, 1803, and i
the lot In controveray is situated
ner of Third and Vine atreeta; fronting on the
former one hundred and ninety-eight, on tbe
latter ninety-eight feet; the part on Third
Street ia level for a abort distance, but de-
Bcenda towarda the aouth along a steep bank,
from forty to fifty feet, to its south line; the
side of it waa washed in gullies, over and
around which the people of the place passed
and re^aaaed at pleasure. The bed of the lot
was principally sand and gravel, with but lit-
tle loam or soil; the lot waa not fenced, noi
had any building or improvement been erected
or made upon it until within a few years be-
fore Buit brought; a fence could have been
kept up on the level ground on the ton of the
hill on Third Street, but not on its declivity.
the ooTenience of digging aand and gravel for
the JDhabitanta. Third Street separated this
lot from the one oo which the defendant re-
sided from 1S04 for many years, hia mansion
fronting on that street; he paid the taxes upon
thia lot from 1810 until 1834, incluaive; and
from the date of the deed from Symmea, until
the trial, claimed it aa his own. DuriuK this
time, he also claimed tbe exclusive rignt of
digging and removing aand and gravel from the
lot; giving permission to some, refusing it to
others; be bronght actions of trespass against
thoae who had done it, and at different times
made leaaea to different persons, for the pur-
pose of taking sand and gravel therefrom, be-
sides taking it for his own nee, aa be pleaaed.
Thia had been done by others without his per-
mission, but there was no evidence of bis ac-
quiesoence in the claim of any person to take
or remove the sand or gravel, or that he had
ever intermitted his elaim to tbe azdusive
right of doing so; on the eontrary, several wit-
nessea testified to hia continued aaaertioa of
right to the lot; tbeir knowledge of his exelu-
cfve cbUn, and tbair ignorance of any advene
elaim for mors than tweaty-one y**n
before 'the present auit waa brought. [*sb
They further stated, as their conclnrion froia
these facts, that the defendant had, from leos,
or 1B07, in the words of one witneas, "had poa-
aeaaion of the lot;" of another, that since 1S04,
"he waa aa perfectly and uclusively in poaaea-
aion, aa any person could poeaibly be of a lot
not built on or inclosed;" and of a third,
■^hat since IBU, he had always been in the
moat rigid possession of the lot in dispute; a
■imllar poeaession to other possessiona on the
hill lot.'' It waa further in evidence that Sam-
uel Williams, under whom the plaintiff elaimed,
lived in Cincinnati from 1803 till hia death in
1824; was informed of defendant having ob-
tained a deed from Symmea in 1S03, sooa after
it waa obtained, and knew of his claim to tbe
lot; but there waa no evidence that he ever
made an entry upon it, demanded possesaion,
or exercised or aasumed any exercise of owner-
ship over it: though be declured to one witness,
prMluced by plaintiff, that the lot waa his, and
he intended to claim and improve it when he
was able. Thia duclai^tion was repeated often;
from 1803. till the time of bis death, and on
hia deathbed; and it appeared tbnt he wna. dur
ing all this time, very poor; it also appi'nrml in
STidenee, by the plaintiff's witness, that the de-
fendant was informed that Williams owned the
lot before the deed from Symmes, in 1803, and
after he had made the purchase.
This is the substance of the evidence given
at the trial, and returned with the record and
a bill of exceptions, stating that it contains alt
the evidence offered in tlie cause; whereupon
the plaintiff's counsel moved the court to in-
struct the jury that on tliia evidence the plain-
tiff was entitled to a verdict, also tliat the evi-
dence offered by the plaintiff and dpfend.mt
was not sufficient, in law, to establish an ad-
verse possession by the defendant; which mo-
tions tbe court overruled. This forms the first
giQund of exception by tbe plaintiff to the over-
ruling his motions: I- The refusal of the court
to instruct tbe jury that he waa entitled to re-
cover, i. That the defendant had made oat aa
adverse possession.
Before the court could have granted tbe flral
motion, they must have been satisfled that
there was nothing in evidence, or any fact
which the jury could lawfully infer therefrom,
which could in any way prevent the plaintifTt
recovery; if there was any evidence which con-
duced to prove any fact that could produce such
effect, tite court must assume such fact to hava
been proved; for it ia the exclusive province of
the jury to decide what facts are proved by
'competent evidence. It was also their ['St
province to judge of the credibility of the wit-
nesses, and the weight of tbeir testimony, as
tending, in a greater or less degree, to prov4
the facts relied on; aa these were matters with
which the eourt could not iiLerfere, the plain-
tiff's right to the instruction asked must de-
Eend upon the opinion of the court, on a finding
y the jury in favor of the deTendant, on every
matter which the evidence conduced to prove;
giving full credence to the witnesses prnduced
by him, and diacrediting the witness for the
plaintiff.
Now, as the jury misht have refused eredesce
to tbe only witness wlio testified to ibe sotica
Feten 11.
Tua LEaitEC or Bwina t. Buhhsf.
Kinn td ttia defendant of Willianu'B ovrnerahip
of Um lot in 1S03, and of hia sulwcquent aaser-
tion of claim, and IntentiOD to improv* it, the
tMtimoay of thii witneu must be thrown out
of the caif, in teatinff the Mrroetnesa of the
eonrt in overruling thia motioni otherwise we
ebouhl hold the court below to have erred in
■ot ioatruetiitj the jury on a matter eicluiive-
Ij for their eons ide rati on— the credibility ot a
witneaa, or how far hIa CTidence tended to
prove m fact, if they deemed him credible. Thia
Tiew of the cau throwi the plaintiff back to
hia deed aa the only evidence of title, on the
legal effect of which the court were bound to
instruct the jury ai matter of law, which is the
only ijueation to be considered on this e\cirption.
It la clear that the plaintiff had the elder
legal title to the lot in dispute, and that it
pre him a right of poaspasion, as well as the
Mgakl seisin and pogaession thereof, co-exten-
nnlj with hia right; which continued til! he
was oustbl by an actual adverse pugseasion
(S Pet. 74:]), or hU right of iioasfsaion had been
in aome other way barred. It cannot be doubt-
ed that from the evidence uddiicEd by the de-
fendant, it waa competent for the jury to infer
these facta; that he bad clnimcd tbin lot under
oolor and claim of title from 1804 till IBM;
had exercised acts of ownership on and over it.
daring thia whole period; that his claii
known to Williams and to the pluintifi, _.
risible; of public notoriety for twenty yesrs
preriouB to the death of Williams. And if the
Jury did not credit the pljjntifTs witness, they
might alao find that the defendant had
tual notice of Willinma's claim; that
ucknown to the inliabitante of the placi
that of the derendants was known; and that
Williama never did claim the lot, or assert a
right to it from 1603 till his death in 1S24
The jury might alao draw the same conclu-
sion from thsM facta aa the witnesses did;
S9*] that the defendant *was during the
whole time in poasession ot the lot, as strictly,
perfectly, and exclusively, as any person could
DB of a lot not incloaed or built upon, or as the
litnation of the lot would admit of. The plain-
tiff must therefore rely on a deed ot which he
had given no notice, and in opposition to all
the evidence of the defendant, and every fact
which a jury could find that would show ■
right of posscEsion in him, either by the pre-
snmption of areleoseor conveyance of the elder
l^al title, or by an adverse possession. On
the evidenoe in the cause the jury might have
preatimed a release, a conveyance, or abandon-
atent of the claim or right of Williams, under
a deed in virtue of which be had made no as-
sertion of right from ITDS, in favor of a posaes-
iion, such aa the defendant held from 1S04;
though it may not have been strictly such an
■dverse poaaesaion as would have been a legal
bar und^ the Act ot Limitations. There mt.y
b« eircunutancea which would justify such a
Bteauxaption in less than twenty-one years {0
Pet. S13), and we think that the evidenfts In
thia ease was in law suQ^cient to authorise the
jnry to have made the presumption to protect
a possession of the nature teatiiied tor thirty
ysani and if the juryj»uld so pi-esuroe, there
ii no arror in overruling the flist motion of the
plaintltf.
On the naxt Botiiw, tht only question pr»-
sented la on the legal inSolenn of the evi-
dence to make out an ouster of the legal seisin
and posaesFion of Williama by the defendant,
and a continued adverse poaseaaion for twenty-
one years before anit brought.
An entry by one man on the land of another,
is sn ouster of the legal poBsession arising
from the title, or not, according to the intention
with which it is done; if made under claim and
color of right, it is an ouster; otherwise, it isa
mere treapaaa; in legal language the intention
g:uideB the entry, and fixe* its cliarscter. That
the evidence in this ease justillcd the jury in
finding an entry by tho defendant on this lot
aa early as 1804 cannot be doubted, nor that
he claimed the excluaive right to it under ool-
or of title, from that time till suit brought
There was abundant evidenc* of the intention
with which the first entry waa made, as well
aa of the subsequent acts related by ttM wit-
nesses, *.o justify a Hndino; that thef were in
assertion of a right in himaelf; so that the
only inquiry is as to the nature of the posses-
sion kept up. It la well settled that to con-
stitute an adverse posaeasion there need nut be
H fence, building, or other improvement made
(10 Pet. 442); it auffioes for this purpose that
visible and notorious acta of ownership are ex-
ercised over the premises in controversy
*for twenty-one years, after an entry un< [*SS
der claim and color of title. So much depeiids
on the nature and situation of the property,
the uses to which it can be applied, or to which
the owner or claimant may choose to apply it,
that it is diflicult to lay down any precise mU
adapted to all cases. But it may with safety
be said tbat where acts oi ownership have been
done upon land which, from their nature indi-
cate a notorious claim of property in it, and
are continued for twenty-one yeara, with the
knowledge of an adverse cUlmanC without in-
terruption, or an adverse entry by him, tor
twenty-one years; such acta are evidence of on
ouater of a former owner, and an actual ad-
verse possession against him, if ths jury shall
think that the propert^r was not auaceptible of
a more strict or definite coSBession than had
bean so taken and held, flettber actual occu-
pation, oultivfttion, or residence, are necessary
to conatitute actual possession (6 Pet. 613),
when the property is so situated as not to ad-
mit of any permanent nseful improvement, and
the continued claim of the party has been evi-
denced by public acts of ownership, such as he
would exercise over property which he claimed
in bis own right, and would not exercise over
property which he did not claim. Whether this
was tbs situation of the lot in question, or
auch was the nature of the acta done, was the
peculiar province of the jury; the evidence in
our opinion was legally sufficient to draw tiM
inference that such were the facta ot the ease,
and if found specially, would have entitled the
defendant to the judgment of the court in his
favor; they, oS course, did not err in refuainu
to insti'uct the jury that ths evidence waa not
sulllcient to make out an adverse possession.
The remaining exceptions are to the charge
of the court, in which we can perceive no de-
ture from eatabliahed principles. The learn-
ed judge waa very explicit in stating tho requJ-
si*!! of an adverae poaaaaaion) the plaintiff had
of oomplamt of a charge stating tbat
SunEMB COUBT or THB UxinD SXASM.
•xsliuive appropriatioD by an aetual ooenpaiicy,
notica to the public and all concerned of
the clmiin, and enjoyment of proHls by de-
fendant, wpie all npii'siiary. No adjudication
of thit court has eflalilialied stricter rulu tlian
thece; and if any doubti could »rise m to their
entire correctness, it would he on an exception
by the defendant. In applying them in the
auLiiequent part of the charge to the eTidence,
tbere aeemt to have been no relazation of these
rulea. Tbe case put by the court, u one of
advene possession, is of ■ valuable aand bank
ekclusively poasesscd and used by the defend-
64*1 »nt for hia *own beneflt, by using and
•elling the aand; and this occupancy, notorious
to tbe Dublic and all concerned, which full^
meeta all the requisites before stated, to eoniiti-
tut« advene possession. If we lake the resi-
due of the eiiarge literally. It would seem to
■uper-add other requisitDS, aa the payment of
tAxet, ejecting and prosecuting treapasaers on
tbe lot, its contifjuity to the defendant's resi-
dence, etc.; but Hucb i« not the fair eonitruo-
tion of the charge, or the appsj'ent meaning of
the court. These circumstancea would seem to
have been alluded to to show tbe intention
with which the acta preTioualy referred to were
done, in which view they were important, es-
pecially the uninterrupted payment of tavea on
the lot for twenty-four aucceaaive years, which
Is powerful evidence of a claim of right to the
whole lot. Tbe plaiiitiU's counsel has consid-
ered these drcumstancea as making a distinct
case In the opinion of the court for the opers-
tton of the statute, and has referred to tbe
punctuation of the sentence in support of this
view of the charge. Its obvious meaning is,
however, to state these as matters additional
or cumulative to tbe preeedine facts; not as
anotlier distinct case made out oy tbe evidence,
OR which alone the Jury could ^d an adverse
posbession. Punctuation ia a moat fallible
standard by which to interpret a writing; it
may be resorted to when all other means fail,
but tbe court will first take the instrument by
its four comers, in order to ascertain its true
meaning; if that is apparent on judicially in-
specting the whole, the punctuation will not be
suffered to change it.
It has also been urged, in argument, that as
tbe defendant had notice of the claim of \\*il-
llama, bis possession was not fair and honest,
and so not protected by tbe statute. This ad-
mita of two answers: 1. The jury were author-
lied to negative any notice. 2. Though there
was such notice of a prior deed, as would make
a subsequent one inoperative to pass any title,
yet an adverse posn'saian for twenty-one years,
under claim and color of title, meiely told, is a
bar; the statutory protection being nscesaaiy
only where the defendant has no other title
•ft'l •SAMUEL VEAZIB
nU WADlilGH et aL
Bight of discontinuanos.
On lbs trial of a caiMS In th» Clrenlt Court ot
tka l>lstrlet at Ualae, ai>on eartala quaatlona wbkh
MO
un
aroK IB tbe pronesa of tbe trial, the Judasa at tks
court wsre diTi<)Fd In oploioa, and Oie qusaUau
Ki-rp, at (hf request of the pialotKr, cerUfled ta tks
Suprrmc Court to Jaauarr Verm, 1836. In DeeeB-
ber. ISSe, the pinlot'ir, illrd In the offlea ol tks
ciri'k of the CIrciilI Tourt o( Maine, a notlc* to tbe
defendant tbil he bad dlscoalLnupd (he suit la tbe
rlrciilt Court. HUd Ibit as booh as tbe Suprama
Court sbould meet In WashtDElan, tbs same dla.
poBltlao would b« made of 1[ there, and that tbe
mita would be paid wbeo msde up. A copy at tbla
notice was I'veD (o the counsel of the deiCBdatita.
Tbe plalutirs coudmI asked the court tor t<-
the ft
] discaullanaace i
QuBrc, Whether lbs part; an whose n»tkin
laestlona are certined to the Supreme Court, oa-
""" act of CoDgpess, hsu i right generally ts
'" "' lie the case 1b tfa*
rSfi'^'i
erio r precceil fngsT
wl(hdrs<
lnKe°C
ON a certificate of division from tbe CSrcnlt
Court of the United States for tbe District
of Maine.
An action of trespaas was instituted In 1835
In the Circuit Court of the District of Midns,
and the question t>ctwcen the plaintiff and tbe
defendant was as to the title in certain lots of
([round, deBcril)ed In the declaration In tbe
County of Penobscot, in the State of Maine.
The case came on to be tried before the Cir-
cuit Court at October Term, 1836; and the
judges of the court being divided in opinion on
certain questions arising in the trial ot th«
cause, the tame were, at the request of tha
plaintiff, by the order of the court, certified to
the Supreme Court of tbe United States. Tk
case was docketed at January Term, 1830.
On the ISth of December, IBSfl, the plaiutiS
filed a notice in tha Circuit Court that tbe «•«
then under a oertiScate of division to the Su-
preme Court of tbe United States was discoB-
tinued in ttie Circuit Court, and that the saoM
would be discontinued in tbe Supreme Court
at Washington as aoon as tbat court would
meet. The notice also stated the readineaa of
the plaintitr to nay the legal costs of the da-
fendant when the same should be msde up.
Notice of this paper was given to the defend-
•Mr. Webster, against the motion, stat- ['ft*
ed that the action had been brought to trf tbo
title to a lexj valuable quantity of land in
Maine; and on the trial the questione, which
were decisive aa to the rights of tbe parties to
the oontroversy, lisd lic;n certified to tnls court.
The cause was continued at tbe last term of
this court, at the instance of tbe plaintiff, ajid
now he asks the discontinuance of the caae.
This cannot be dune by either party witboot
the consent of the other. This is the general
ground of objection.
At present, there is no discontinuance on th*
record of the Circuit Court of Maine, lor no
discontinuance can take place in vacation. But
if application had been made to the Greuit
Court to allow the discontinuance, tbat eourt
had no power over the case. There is aa stat-
ute of Massachusetts or of Maine, declaring tka
cases in which a plaintiff may discontinu*. Tha
authority referred to from Dane's Abridgsment
is applicable to costs onjy. It doea not r
_..__ }> __ ^ general doetrine that r "'"
's disoontini
ma/ alwajrs disoontinua.
not reeog-
s plaiatUt
I 11.
lan
Vxun V. Wadlbub I
e after tlw trinl b tlwa^i In
the diicretion of the court, >nd the rule i^* unj-
venul that when anything has occurred in tliu
course o[ the cause, which givoa the defendant
an interest to have the case decided, the plain-
tiff cannot dincontinue. Thia ia stated in 5
Dane's Abr. 672; S Dane's Abr. IM, art. 1, sec
12, M)d in the cases referred to.
These authorities show that there cannot be
a discontinuance by the plaintiH where there
baa been a reference under a rule of court; as
tke defendant tias, b; the reference, acquired
ut interest in the terminntion of the cause.
The present proceeding ia entirely a slutu'
tory one. and it was intirulrd to tnlie the pIiLce
of ft provision which should give to the parties
in a cB«e a full opportunity of having a final
decision in tiiia court over thosB quesHnua
which, when decided, would govern the Circuit
Oonrt in the ease. In the early history of the
dreuit courts there was no such provision, and
when a ditTerence of opinion prevailed between
the judges of the court, the case was adjourned
to the succeeding term, until another jud^e
of the Supreme Court should hold the Circuit
Conrt; these courts being then held by the
jndKes of the Supreme Court sitting in rotation
or in Bucceasion, in each circuit; and if tlie
eourt should again be divided in opinion, the
judge of the Supreme Court holding the court
should decide. The Act of 1802 ( 3 Laws U. S.
4S2 )was passed after the judges of the Su-
preme Court were assigned to each circuit,
67") 'Two ejectment suite, involving the
same questions as those presented in this cause,
were depending when the case was eertifled.
The defendant has, therefore, an Interest to
have the questions settled. But whether he baa
or' not, it Is enough, under the provisions of the
act of Congress, that he desires to have the
law settled.
All tlic proceedinn under this statute are
prescribed by it. Nothing ia said alMut the
ease being withdrawn. The questions upon
which the court msy divide in opinion are to be
certified, and the Supreme Court are to decide ,
upon them, and certify their decision to the
(Mreuit Court. When this is done, the plsintill
ma,j discontinue the cause, with. the consent of
the Circuit Court; but until the cause is again
in the Qrcuit Court, he has no power over it.
But it ia not dented that, both parties agreeing,
the cue may be withdrawn.
B; the provisions of the law, the cue may
b* certified at the instance of either party; and
in the present case, it was done by the plaintiff.
The defendant might have done it. The law
aaya the division shall Im eertifled, and that
the Supreme Court shall decide it.
Rule XIX. of this court, relating to wriifl
of error, provides that the plaintiff in error
shall not discontinue. If he does, the defend-
aat may go on. This rule, by analogy, applies
to the ease before the court. Oted, 12 Mass.
49, aa to discontinuances.
Mr. Smith and Mr. Bntler, for the plaintiff,
eontended that the plaintiff had a full right to
dbeontiDue the case in the Circuit Court, where
It was still pending; the certificate not having
ranored it Into this court. The kw of Maine
recogniCM Uits right. S Dane, Abr. Tit. Dis-
oontiananee, 071. The case in U Masa. fiep.
m, b to the same poinb
Thia ia not like a diseontinuanoe after Ter-
dict. After this court shall have decided the
questions certified, a jury must be called and
tlie case will proceed. Nothing is in the Su-
preme Court but the questions certilied, and
tliey are only incidents to tlie ais:'. By the
statute, notwithstanding the facL that i|uestlnna
on which the judges of the Circuit Court have
differed have been certilied, the cause may go
on and be tried, unless the questions are such
as to prevent it. Cited, Wa^ninn v. Southaid,
10 Wheat. 1; The United States v. Daniel, 6
Wheat. 642.
These cases show that if the d'^ciaion on the
qupstion certiried 'shall be a detiiion of [*KS
the cause, yet this court cannot give judgment,
nor can the whole cute be sent up to tliis c.jurt
for decision. The United States v. Bailey, 0
Peters, 273.
Wh.it were the rights of the parties in the
Circuit Court I We aver that either of them
could have hnd the qiteatinns on which the
judges differed in opinion certilied to this court.
The plaintiff alone lias chosen to exercise this
right. It is admitted that these questions arc
important; but, if the defendant chose to take
the chance of the plaintiff's discontinuing thd
cause here, he must abide bj' the consequences.
He omitted to secure the decision of this court
on tlieae questions, by requesting tu liave them
certilied, and the case is now befori- this court
on the rpqucst of the plnintilT only. He with-
draws it from the court, and what, then, is its
authority to proceed ! Until the argument of
the ease comes on, the record is not here for
the benefit of both parties. It is hcru until then
only for the party at whose request it has been
certified. This does not apply to coats.
It will not be denied that if this case had
been discontinued by order of the court below,
this court would not afterwards go on, tlas
there been a discontinuancet Has it not been
sulistantially witlidriiwn from the Circuit
Court! It is technically correct to say a case
cannot be discontinued without the act of the
court in which it is depending; but yet, sub
stantially, a discontinuance may be made in
vacation, which will have the effect ol a dis-
eontinuance.
It is understood that the act of the plaintiff
In thia case is, according to the practice in
Maine, a discontinuance, and that he cannot
now go on in the Circuit Court with the cause.
The paper having been filed, it hsg l>ecome the
property of the court and of the defendant, and
the pkintiff cannot afterwards sppear in the
case. The paper states that the case is discon-
tinued, and thia has been followed up by the
application now made. No more proceedings
can take place. In En<;land, on the filing
of such a paper, the court would order a non
The statute of Maine, on dicing costs on a
discontinuance, ailirma the right. By the com-
mon law, no costs were given on a discontin-
uance, except in certain cases on the condition
of paying costs. After the jury has retired,
and after they have returned, and are ready to
give their verdict, the pluintilT must be called,
and he may retire. The penalty of costs is im-
posed in such cases. It is when a party seeks
to discontinue without costs, Ik must apply ta
the oouiC
Ml
SuPuuiE Coun or tbi UKinn Statis.
im
(•*] *Afl to the CMe of a Mference under
■ rale of court, in which it is •dtaitted neither
pftrtj can withdraw, licre, by agreement, the
cause ii out of court, and neither party can go
to court and discontinue without the consent of
tha other. A different tribunal ha< been aub-
•titnted, and each partj haa a right to its adju-
dioktion of the caie. But ther« U no Bueh right
In this case.
Suppose the case had been argued and dedd-
•d in this court, on the points certified, and had
mne back to the Circuit Court of Maine; could
that court proceed in the cause if the plaintiff,
on being called, does not appear? Could a
venire be issued, and a jury called f Could
be not after the jury was aworn, suffer a non-
suit T If all this ma; be done after the cause
bas [proceeded so far, may not the same be
dons in an earlier period of the proceedings T
Hr. Justice Story dellrered the opinion of
tbe court;
This is a case certified frum the Circuit Court
for the District of Maine, upon a division of
opinion of the judges of that court upon cer-
tain questions which arose in the progress of
the trial of the cause. These questions were
certified to this court at the last term, upon
the motion of the plaintiff. On the 16th of De-
cember last, the plaintiff filed in the clerk's
office of the Circuit Court (it being vacation)
■ written declaration, as follows: "I hereby
notify you that the artion of trespass, which Is
now pending in said court, to await the deci-
sion of certain questions, carried up to the Su-
freme Court, Is discontinued by me; and that
be same disposition will be made of the case
in tbe Supreme Court at Washington, as soon
aa it meets at Washington. You will there-
fore please to file this in the case, and notify
the counsel for tfae defendants of the same, and
that their legal costs in tbe said Circuit Court
may be immediately made up, and the same
will be paid." Due notice was accordingly giv-
en to the counsel of the defendants, and ths
counsel for tbe plaintiS have accordingly, at the
present term, made a motion in this court,
under these circumstances, to discontinue ths
cause here, and to withdraw tbe record. The
motion is resisted on the other side, upon the
Eiund tbat the defendants have an interest in
viog these certified questions decided by this
court; of which they cannot be deprived with-
oat their own consent, by the dismissal of tha
«Mue.
Tha point Is eonfessedly new, and we have
therefore thought it right, after tbe argument,
to give It full consideration, with reference to
the future practice of the court.
60*] *Tbe Act of 1802 {eh. 31, see. 6), un-
der which this ease has been certified , pro-
vides, "Tbat whenever any question shall oo-
cur before a circuit court, upon which the
judges shall be opposed, the point upon which
the disagreement shall happen shall, during
tbe same term, upon the request of either
Sirty or their counsel, be stated, under the
Ireetlon of the judges, and certified, under ths
•eal of the court, to the Supreme Court, at
their next session to be held thereafter, and
•halt, hy the s^d oourt, be finally dsddod.
And the decision of the Supreme Oourt, and
their order in tbe premiaea, shall be remitted
•sa
to the Qrcnlt Oourt, and b« there entered 0«
record, and shall have effect, according to ths
nature of the said Judgment and orderj pro-
vided, however, that nothing herein contained
shall prevent tbe cause from proceeding, if, in
the opinion of the court, further proceedings
can be had without prejudice to the merits."
In construing a statute providing for such
a novel mode of obtaining the dedsloa of an
appellate court upon the matters of eontrover-
ay between the parties, it is not surprising that
there should be some difficulty in ascertaining
the precise rights of the parties; whether the
part; upon whose motion the questions are
brought here it to be treated like a phuntifT in
error, as entitled to dismiss hia own certified
cause at his pleasure; or whether the other
Esrty ia entitled to retain tfae cause for his own
Bnefit, and to insist upon a final adjudication
of the questions here. It Is clear tbat ths
statute does not, upon the certificate of di-
vision, remove the original cause into thta
court; on the contrary, it Is left In the posaes-
sion of the court below for tbe purpose of fur-
ther proceedings, if they can 1>e had without
prejudice to the merits; so that. In elTect, the
certified questions only, and not the originsi
cause, are removed to this court. In the next
place, looking to tbe inteot and objects of the
provision, which are to enable the court below
to proceed to a final adjudication of the merits
of tbe cause, it seems equally clear that if
the original cause ia entirely withdrawn from
tbe cognizance of the Circuit Court by dis-
continuance or otherwise, there is no ground
upon which tfab court should be required
to proceed to decide the oertlfled questions,
since they are thus become mere abstract ques-
tions, liiey are but incidents to the originiil
cause, and ought to follow tbe fate of their
principal. We have no doubt, then, that upon
the true construction of tbe statute, if a dis-
continuance had been actually entered In the
Circuit Court of Maine, in term, tbe record hers
ought not further to be acted upon by ua; hut
a withdrawal or dismissal of the certified ques-
tions 'ought to be allowed. If it were [*6I
necessary to accompllafa thia object in tbe most
formal way, we should order the case to stand
continued until the next term of this court; so
that the plalntifl^ might, in the intermediate
time, make an application to the Circuit Court,
in term, to enter a discontinuance thereof in
that court.
The only point of difficulty ia, whether the
filing of the above paper in the (Sreuit Court,
in vacation, constitutes, per se, a discontin-
uance of the original cause; without any action
of the Circuit Court thereon, upon which this
court ought now to act. According to tha prac-
tice of some of the courts in the Union, it ta
understood to be the right of the plaintiff to
enter adiscoutlnuance of the cause at any time,
either In term or in vacation, upon the pay-
ment of costs, before a verdict is given, with-
out any formal assent of or application to, the
court; and that thereupon tbe cause is deemed.
In contemplation of law, to be discontinued, la
Massachusetts and Maine a different practics
is understood to prevail, and the dlscontinusince
can only be in term, and is generally upon ap-
plication to the eourt. In many eases, however,
[a thete Btat«a, It li a mattar of right la
PMen 11.
)B3T
Allsh t. BAHKOint.
Buken r. WUtn^, 12 Mub. R. 49, 60, ttili
doctrine waa expresaly reco^iwd. The eonrt,
OB that oersaioD, aaid: "l^e plaintiff or de-
mandant niaj, in varioiu model, become noD-
■uit, or diRcnntinae hfa Muae at hia pl«aaure.
appear. If tbe pleadinga
may refuae to reply, or ti
dercd; or after isaue joined, \ie may decline to
open hia niuae to the jury. The eolirt also
may, upon stiffleient eauae ahown, allow him to
diaeontinue, rven when it cannot be claimed aa
a right, or after the cause ia opened and aub-
mttted to the jury.'* Before trial, then, the
plaintiff may in many caiei aa a matter of
right, discontinue his cause according to the
Kactice of the State courts, at any time when
IB demandable in court. After a trial or
verdict, he can do so only by leave of the court,
which it msy ^at or refuse, at its discretion.
But under ordinary circum stances, before ver-
dict, it is aluiost a matter of course to grant It
upon payment of costa, when tt ia not strictly
demandable of ri;;ht.
Under th« drcumattuicea of the preaent c»ae,
we have no doubt that the plaintiff is estopped,
hereafter, to withdraw his assent to the dia-
continuance of his suit in the Circuit Court:
and that that court posscssea full authority to
enter such discontinuance at its next term,
upon the mere footing of the paper (lied in the
«2*] clerk's office, without *any further act
of the plaintiff. We think, too, that it would
be the duty of that court to allow the entry of
auch diseontinuaoce, upon the application of
the plaiotiff; oa he certainly haa a right, In
that or some other form, to decline to prooeed
further in the auit, or to prosecute it further,
subject to the payment of coats to the defend-
ants. In nibstance, then, we think the original
cause in the rarcuit Court ought now to be
treated by us aa virtually at an end, for all
the purposes of requiring our decision upon
the certiSed questions, and that the motion to
withdraw the record and discontinue the eaae
ought to be granted.
In making this decision we wiah to be
anderatood bb not meaning to Intimate that the
party upon whose motion, any queationa are
certified to this court under the statute has a
right, generally, to withdraw the record, or dia-
eontinue the case here, while the original cause
ia retained in the Circuit Court for ulterior pro-
ceedings. That ia a point of a very different
nature from that now before ue, and may re-
Juire very different principles to govern It.
t will be sufficient to decide It whan it sball
arisa directly in judgment.
On eonaideratlon of the motion made In this
^use, on a prior day of ths present term of
thia court, to wit, Thursday, the 12tb Inst.
by Mr. Smith, of counsel for tbe plaintiff, to
diamiss this cause, and of the arguments thera-
upon had, as well in support of aa against
tha motion, it is now here considered by ths
court that said motion be and the lame is
Ivreb; granted. Whereupon it ii now here
ordered and adjudged bv thia court that this
tauae be, and the aaine u hereby diimiHed.
• Z*. od.
■ORAWroitD ALLEN, Appellant, [■#«
JOHN HAMMOND, Appellee.
trig Ana. of Boston, on a vorate from Mew
to Uadslra, etc.. was nnlawfuUr captnrad
irt oE tbe fortuitaest •quidi-on, and wu. with
go, coudemued. Udob tbe temoiKtraLca of
-rniuent of the United Stales, the claim el
s capture waa,
of Portucsl. 10 a .,.
. . . _ fourth ol wblch was soon after paid,
the 2Tlh of Jaauarr. 1S32, the owoer arthe A
id earns, ueltber o't the parties knciwliis of tba
aiiiDJBElaa of the claim bj Portugal, made an aRree-
lltlle below aae tlilrd of the whole amount of tb*
■uD) admilted, u commlssloDa, on his asreelni ta
uae his utmoal eSarts for ibe recover; thereof. At
the tints Uiis acreement was made, whlcb waa un-
der aeal, H., the appellee, was Indebted to tbe ap-
pellant A. f^«S for services rendered '^
immerdal anocj tor him. In tb
I aMreed tbat thli debt abauld b* n
the contract A. received the paj
Q U. b7 I*ortUKHl ; aad I.
Inded and delivered up to b
t of $ZS8 tojie dfdacted from the ai
vltb Intereat, etc The Clr
., and on tbe pavment o( t^SS,
w.iu luLimi., iiin contract waa ordered to bs de-
livered DD to be cancelled. The decree of the
Circuit Court waa aOlrmed, the court beluK Of
opinion tbat the agreement had been cDleredlato
by botb tba parties to it under ■ mistake, and un-
der eatlre Igaoranee of the allowance of tbe claim
of the owner of tbe Add and ber cargo. It was
witbout cons Ide rat Ion : lervlcea long and arduous
w era con I em plated, but the object of thoae aervlcaa
gqull; woald i
The law on tblg aubjeet ta elearlT suted In the
to know he actuallT has tbat wblch he professes
to srll. And even though tbe subject ol tbe con-
tritct be koowD to twtb parties to be liable to a
cpnilngcnc]f, which may deatroj It Immodlateij, vet
It the coDtlngenc; has alresdj happened, if will
APPEAL from the Circuit Court of the Unit-
ed States for tbe District of Rhode Island.
In the Circuit Court of Rhode Islsnd, the ap-
pellee, John Hammond, filed a bill praying
that a certain instrument in writing, execntcd
b; falm and the appellant, in January, 1832, by
which he had stipulated to allow to tbe appel-
lant a compensation for establishing a claim on
the PortuKuese government for the illegal cap-
ture of a 'vessel belonging to him, should [*84
be cancelled; the consideration for the aaid
stipulation having failed. The hill alio prayed
for other relief, and that the instrument ahould
b« delivered up to be cancelled.
Tbe Circuit Court gave a decree In favor of
the complainant, and the defendant appealed
to this court.
Tbe facts of the cas« are fully sUted in tha
argumenU of couusel and in the opinion of the
The oajM was argued bj Mr. Giatn and Mr.
Non.— As to when squltj will relieve sgainst
atstake m tgnorance af tact IM aota to S I_ ed.
BtmcHi Comr ta tbz Umw Staii
Offcn for tlie appellut, and by Hr. Webttei
for the appellee.
I1iii wii K case in equit7, and came before
the court on an nppeal from a decree of the Cir-
onlt Court of the United States for the Dia-
trict of Rhode Island.
John Hammond Hied fall btll aeaiuBt the ap-
pellant, praying, among other thing*, that a
eutain power of attorne)', and a certain i^ree-
ment between said Hammond and Allen, men-
tioned in the bill, might be decreed to be de-
Uvered up to the complainant to be cancelled.
The power of attorney referred to is an irrevo-
cable power from ILimmond to Allen, to re-
oelre from the government of Portugal, or of
the United States, and of and from all and
eveij person and persons whomsover, a certain
claim or demand which said Hammond had for
a account of the capture and condcmna-
ment wb9 made on the 27tb day of January,
1832, between Hammond and Alien, by which
Hammond agreed to pay Allen ten per cent, on
all sums recovered until the amount should
equal $8,000, and on ali auma over that amount,
thirty-tbree per cent.; and Allen agrepd to use
hia utmost efforta to bring the claim to a
favorable issue, and to receive the aforesaid
commission in full compensation for his serv-
ices and expenses already incurred, or tb era-
after to be incurred, in prosecuting the claim.
The bill, among other thin^, alleges that on
the ]Qth of January, 1832, in consequeoce of
measures taken by the representatives of the
government of the United States at Lisbon, the
e&*] Portuguese government 'recognized and
admitted the complainant's claim to the
amount of 133,700, of which he alleges he was
ignorant until the month of March, 1832. That
the power of attorney was executed in canae-
quence of certain repreaentations made by Al-
len that he could render important servicea in
prosecuting the claim against the Portuguese
government, without which services the claim
would be lost, and that Allen proposed to
Hammond to appoint him his agent; tbat he
was then ignorant hii claim had lieen recog-
nized, and ^Bo tbat the agrvement was execut-
ed while he remained ignorant of the fact.
The bill also charges that the claim has not
been liquidated or paid in consequence of any
interference or exertions of the defendant, or
through any agency or influenoe on his part.
That both said instruments were executed
without due consideration, and when the com-
plainant was ignorant of the situation of hia
olaim on the Portuguese Kovernment. Tbat
the contract of January 27, 1823, "was en-
tered into and executed without any adequate
eonsideration or servicea to be by the aaid
Crawford Allen paid or performed," under mis-
taken viewB and ignorance of the then ait-
nation of the complainant's claim; and is hard,
IUieonsclonat)le, and unequal, and ought, on
that aeoount, to be set aaide, even if said daim
kad not bMB liquidated by the Portuguese gov-
ts*
lUT
tba time mU eontniet waa wOa
and ezMuted.
The answer givea the falitory of the aoquaint-
ance between the oomplainnnt and defendant;
showa the measuree to enforce tliis claim which
the defendant had taken as the agent of the
complainant prior to the execution of the pow-
er of attorney; that those measures were ap-
proved by the complainant; that the power
was read to him; that there copiee were exe-
cuted; and that the complainant saw all tha
letters which the defendant had reoeived. It
alleges that the defendant relinquiahed all
claims for commissiona and services, amounting
to $29S, then due him, and that the consider-
ation to the complainant for executing said in-
■tmments was the defendant's relinquishment
of the immediate payment of ttie money then
in hia own hands, of what was then Justly due
to him for commissions and for services al-
ready rendered in regard to the reclamation of
aaid veasel from the Portuguese government,
and the agreement on the part of said defend-
ant to nse his "utmost efforts to bring tha
aforesaid claim to a favorable issue," and to sus-
tain aJl the expenses in prosecuting said claim.
'The defendant espresaly denies that I*Bt
it was any part of the understanding or agree-
ment between him and the complainant that
the defendant was not to receive said atipu-
lated sums in case there should be little or no
trouble in obtaining aaid money.
On the contrary (he states), the understand-
ing and agreement was that the defendant was
to receive said sums and no more, even though
hia trouble and expenses should much exceed
aaid sums, and to receive said sums also if hia
trouble and expenses should be but very small,
and both parties fully understood that the val-
ue of the bargain to the defendant depended on
these oontingencies — and the defendant avera
that he had no knowledge at the time of the
situation of the claim, except that derived from
the letter* annexed to his answer, that all the
information he had was mode known to the
complainant and was common to them both;
that it was made known to the complninant
In conversations and by exhibiting said let-
ter*; and he denies that the a^ement, when
executed, was to depend for its validity on
any subsequent information, from any source
whatever. "On the contrary, it was fully un-
dentood that contingencies like the one which
unexpectedly happened, or others of an op-
posite character, might render the agreement
very advantageous, or very disadvantageous to
the dafendant."
The dacree require* the defendant to bring
the agreement of January 27th, 183^ int^ tiic
clerk's office within ninety days, for cancel-
lation, and enjoin* the defendant from aasert-
ing any title at law or in equity, under tba
lame; and it also orders the payment of $208
by toe complainant to the defendant.
Mr. Green and Mr. Ogden, for the appellant,
contended that this decree ought to be reveraeda
because it appears by the evidenco in tlie cauae,
1. That the agreement waa fairly made, and
for a valuable consideration, and is not un-
oonseionable or oppressive.
i. That it was made with an equal knowt-
Ig* of all the drcumstaneea on tha part of
ich of the oontraeting parties
PMen 11
AiiAR *. HAiiumm.
I. n«t the faei tluit tin claim nilglit hmre
bMQ >1 lowed bj the Poitugueie government
iBust bATc been contemplated bj the parties
when the agreement was made, and van one of
the eontingenciei which might make It more or
leu profitable to the defendant; and that the
allowance of the claim of that goTemment did
Bot relieve the defendant from other duties to
• J*] be performed and expenses to be •Jneurred
under the agreement; nor was the recognition
of the claim, or even obtaining it* payment, the
■ale consideration for the agreement.
4. That the defendant, b; hi* actn, affirmed
the agreement after he had full knowledge that
the claim bad been allowed bj the Portugueae
government.
The evidence tatty ahowa that the agreement
was fairly made, and for a valuable considera-
tion. The consideration was a relinquishment
of a debt of t2S8 due by the appellee, and of a
compensation for services in prosecuting a
claim. Heavy expenaea would be incurred in
the pTosecution of the same, and at the time
the arrengeineiit was made the issue of the
Imdertaking of the appellant was very doubtful.
The agreement was made with an equal
knowledge of all the facts by both parties to it.
At the moment the agreement was made, both
partiea might have supposed the Portuguese
government had recognized it, as it was known
to both that the government of the United
States bad made the injury done to the ap-
Cellee the subject of diplomatic complaint, and
ad demanded satisfaction for it. Thus the
objection to' the rights of the appellant, founded
on a want of consideration, or too great a com-
pensation for servii^es done, or to be done by
him, which was sustained by the Circuit Court,
should not have prevailed. .The contract was
made with a view to every contingency, and
that of an actual acknowledgment of the claim
having been made, was one of those contingen-
dea contemplated by the partiea. There was
•lao K sum of money actually paid for the con-
tract. This the appellant was not to have re-
turned to him under any circumstances. The
aituation of the claim of the appellee on the
Portuguese government at thfa time, even since
tta acknowledgment, and an agreement to pay
the Amount admitted to be due, shows that
thta* waa more in uncertainty than the men-
fact that the claim was not allowed. But one
of the inatatlments has been paid; and although
the period for the payment of further sums has
•irived, nothing more has been received. The
government of Portugal Is convulsed by intes-
tine divisions, and is without the means of dis-
«liarg))ig it* obligations. The appellant has,
nnder his contract, duties yet to be performed.
He ia bound to keep an agent in Portugal,
whooe efforts are eonstant to procure the pay
meat of the remaining aumi due to the ap-
pellee.
Mr. Webatei, for the anpellee, contended that
<S*] at the period of the 'contract with the
o be allowed to the appellant. He was
nte the claim on the Portuguese govem-
moit for the eaptnre of the property of the
Bppellee. In domg this, It was expected he
wovld be oblind to pay considerable sums for
cxpmiMa; to devote nnch time to the objeeti
to employ agents, and yet, at the Instant It was
agreed to pay him for all these services, or to
provide for all these expenses, nothing was to
be done, for all had been accomplished without
his t.^enr7. Thus no foundation for the con-
tract existed. As to the sum of S2aS paid by
the appellant, the snip- principles which pre-
vent his obtaining anything from the appellee
under the contract, entitle him to have that
sum repaid to him with interest. Where a fact
of leading importance to parties entering into
a contract was supposed to exist, and did not
exist, the contract formed on the belief that It
was in existence should be set aside. This waa
the case between these parties; nothing re-
S^GS to the appellee was a consideration which
entitled him to receive the thousands of dol-
lars the contract waa to give him, and which
he now claims.
In Hitchcock V. Giddlngs, Daniel's Exchequer
Reports, 1, the principles upon which thia case
is rested by the appellee are sustained by the
court. If the contingency which was the object
of the contract haa happened, the contract is
Mr. Justice HTeaa delivered the opinion ol
the court;
Thia suit In chancery is brought before this
court by an appeal from the decree of the {3r-
cuit Court for the District of Rhode Island.
The bill waa filed in the Circuit Court by the
appellee, to compel the appellant to deliver up
to be cancelled a certain contract, on the ground
of its having been given through mistake.
In the year 1S30, the appellee being the aole
owner and master of the brig Ann, of Boston,
while on a voyage from New Orleans to Ma-
deira, and thence to the coast of Africa, waa
illegally captured off the Western Islands by
a part of a Portuguese squadron. Notice of the
capture was given to the American government,
but the vessel and cargo were condemned.
Such remonstrances were made by the Ameri-
can government that on the 19th day of Jann*
ary, liSZ, the claim of the appellee was admit-
ted, *to the amount of tbirty-three thou- {*••
sand and seven hundred dollars, by the Porta-
guese government.
On the return of the appellee to the United
States, he executed a power of attorney to the
appellant, which is stated to be irrevocable,
of January, 1B32, the partiea entered Into »
contract, under seal, In which Hammond agreed
to pay Allen ten per centum on all aums wUcii
he should recover up to eight thousand dollara,
and thirty-three per cent, on any sum above
that amount, as commissions. And Allen
agreed to nae hb ntmost efforta to recover tke
Prior to this period, and before the power of
attorney was given, Allen, who waa a commis-
sion merchant at Providence, Rhode Island, had
acted as the agent of Hammond In proenring
insurances on his vessel and cargo at various
timea, and also In the transaction of other btiri-
neaa. Commissions were charged by Allen
as in ordlnarr eases; and it appear* that Hmb-
mond WH Indcbtfd t9 Urn for tbaae Mrvicea, at
n Stmatm Catmt or r
the d»t« of the abore uraenieiit, the euin of
two huDdred tnd eixt7-e&ht dollars.
Allen had effected ao iniurance on the brig
for the voyage tn which it irae captured, and
■o (oon as he heard of the capture, be made
reprea testations of the fact to the Secretary of
State at Waahington. This wai not only saoc
tioned b; Hammond, but from hi* oorreepDUd'
ence with Allen he eeem* to have placed great
confidence in bia dispoeltion and abilitj to
■erre him.
There are ■ great number of facte wbieb ara
£ roved in the case, and contained in the record,
ut it ie uoneceaaar^ to state them, as they can
have no direct beariDg on the principal, and iS'
I, the For-
tngueae government admitted tCe claim of Ham-
taaai, one fourth of which waa ahortly after-
wards paid. And the question ariiee, whether
an agreement, entered into under audi drcum-
■tonces, ought to be delivered up and cancelled.
No one can read the contract without being
■tmcic with the large aum that Hammond ia
willing to pay on the eontinBeney of recovering
bU claim. Allen waa to receive ae a compensa-
tion for hia eervicei, a «um little below the one
third of the amount recovered. Tbia showa, in
the strongeat point of view, that Hammond
could have entertained but a remote prospect of
70"] rceliEing hii claim; and, indeed, "it would
seem, when the circumetancee of the case are
oonsidered, that he coutd have had little or no
ground to hope for aucceea.
His vessel and cargo had Iwen oondemned;
the Portuguese government waa in an unsettled
state, and iti Bnances in the greatest contusion
and erabarraaement.
In hia vesael and cargo Hammond appeaxa to
hETe loat hia entire property; and this very
naturally threw him into despondency, and in-
duced him to agree to pay nearly one third of
his demand to an went who might, by posai-
bility, recover it. He no doubt aupposea that
by Interesting his agent ao deeply in the claim,
he would aecure hia sympathies and hia utmost
axertiona. And the prospect was if the claim
or any part of it ahould be obtained, it would
be the work of time, and of great effort.
Allen is not chargeable with fraud in enter-
ing into the contract, or in aain^ the moat per-
severing efforts to get poasession of the in-
stallment paid.
That the contract was entered into by both
DftrtlM under a mistake la unquestionable.
Neither of them Iniew the Portuguese gov-
ernment hod allowed the claim. Can a court
of equity enforce sueh a contract T Can It re-
fuse to cancel itt That the agreement was
without consideration ia clear. Services long
tnd arduous were contemplated as probable,
by botii parties, at the time the contract waa
executed. Bat the object of pursuit was al-
ready attained. Ko services were required un-
der the eontraot, and for thoae which Allen
had rendered to Hammond prior to it regular
durses aeem to have been made.
It Is true the amount of services required by
the ftgent was uncertain. He took upon blm-
mK Uiis contingency, and had not tne claim
been allowed by the Portuguese foiremment
-«til after tlM oontriwt, Im would have been
entitled to his eommiaslons, however small Ui
agency might have been in produdng the ra-
ault. Tbia, it may be suppoaed. waa a contin-
gency within the contemplation of the parties
at the time of the contioct; so that, uncon-
nected with other circumstances, the smallneM
of the service rendered could have constituted
no ground on which to set aside the cmittaet.
But no one can for a moment believe that
Hammond intended to give to bis agent nearly
ten thousand dollars, on the contingency of his
claim having been allowed at the time of the
contract. And it Is equally dear that his
agent, under such a drcumatance, had no ex-
pectation of receiving that, or any other amount
of compensation. 'The contract does ['It
not provide for auch a ease, and it could not
have been within the contemplation of either
party. Services were made the basts of the
compensation agreed to be paid, but the allow-
ance of the claim superseded all service* in the
The e<iuity of the complainant la so ebviooa
that it is ditTieult to make it more dear bv Il-
lustration. No case, perhapa, has occurred, or
can be aupposed, where the principle on which
courts of equity give relief, is more atrongly
presented than in tbia case. The contract was
entered into through the mistake of both par-
tiea; it impoaes great hardship and injustice on
the appellee, and it is without consideration-
These grounds, either of which in ordinar;
cases is held sufficient for relief in equity, unite
in favor of the appellee.
Suppose a life estate In land be sold, and at
the time of the sale the estate has terminated
by the death of the person in whom the right
vested, would not a court of equity relieve Tha
purchoserl If the vendor knew of the death,
relief would he given on the ground of fraud;
if he did not know It, on the ground of mia-
take. In either case, would it not be gross
injustice to enforce the payment of the consid-
eration I
If a horse he sold which Is dead, though b»-
lieved to be living by both parties, con the pur-
chaser be compelled to pay the cona ide ration T
There are cases in which the parties enter
into the contract under a material mistake oa
to the subject matter of it.
In the first case the vendor intended to sell,
and the vendee to purchase a subsisting title,
but which, in fact, did not exist; and In the
second, a borse was believed to be living bat
which was, in fact, dead.
>ither of these eaeea tha payment of
the purchaae money should be required. It
would be a payment without the shadow of
consideration, and no court of equity ia believed
'} have sanctioned euch a principle. And
the case under consideration; If Ham-
mond should be held liable to pay the demand
of the appellant. It would he without conaidera-
There may be some casea of wager, respect-
ing certain aventa, where one of the contingen-
ciea had happened at the time of the wanr,
which waa unknown to both partlea, and which
held not to Invalidate the contract. Of
this character is the case of The Earl of March
Pigot, fi Burr. 2S02. But the qneation in
that case, arose upon the verdict of a jury on •
nils to show cause, etc.; and 'Lord [*TS
Pet«ra 11.
Thi Unitkd States v. Thk Ship Qunnnt, mtc
Uft, "Un iiktura of tka Matnct,
and the DWDifMt intention of the paitiea lup-
port the verdict of tha jurj (to ntiom it wks
Mt witliout objectioD], th»t he wlio succeeded
to his eatUe Ont, bj the death of his ftther,
■hould pay to the other without may dietinc-
tim, whether the event had or nut, U tb«t
time, actiuUy happened."
In 1 Fooblanque'e Equity, il4, it b laid
down that where there is an error id Ihe thing
for which an individual bargains, by the gen
«ra] rules of contracting the contract is null, ai
ui such ft case the parties are supposed not tc
eve their aaaent. And tlie same doctrine ii
id down in PuBendorff'a Law of Nature and
Nations (book 1, ch. 3, sec 12).
Tb« law on this subject is clearlj stated tn
the case of Hitchcock v. Giddinj^s, Daniel's Re-
ports, 1, where it is said that a vendor it bound
Ut know tliat he actually has that which he
professes to sell. And even though the sub-
Jaet matter of the contract be known to both
parties to be liable to a contingency which may
destroy it immediately, yet if the contingency
tea already happened the contract will be void.
By the decree of the Circuit Court, on the
payment of the amount, including interest,
which is due from the appellee to the appel-
lant, be is rei]uired to deliver up to be cancelled
the agreement entered into on the E7th of Jan-
uary, 1S32, which leaves the parties as they
were before the contract; and as we consider
the decree just and sustained by principle, it is
This cause came on to be beard on the tran'
•oript of the record from the Circuit Court of
tlw United States for the District of Rhode
Idand, and was argued by counsel; on con-
sideration whereof, it is now here ordered, ad-
judged and decreed by this court that the
deerec of the said Circuit Court in this cause
Im, and the same is hereby affirmed with coete.
THE UNITED STATES, Plaintiffs tn Error,
Acts of Congrssi as to slsve trade not applica-
ble to ease of slaves once domiciled hare and
bronght back after temporary absenos.
Certain persons wbo were slaves In the State ol
_._. v_ j^jij, owners taken to FrsBce
bjtbelrown
I.onIslans, wire bv
aa ■errauta, and aft.. ..
OBdar declarations from tbelr proprieton IbNt thtj
■iHlnId be tree, and odp ot them, alter ber hi ilval,
was bald as a slave. Ths sblpi In wblcb tbese per-
•ons wen iMaaenKers, were, alter arrival la New
Orleans, libeled for alleged breaches ot the Act of
Ceasnaa ot April 20th, tSlB,_ ^roblbltlng the^ Im-
nsea. Tbe object ot the law was to
a to tbe slave trsde, and to prevent (lie
en of slavee fron forelen conntrles. Tbe
«f tiM atstnte cannot properly bs ap-
KrOaib
laitsd Statea' and 'whig'
pIsM •! (ssMtaes attsi
APPEALS from the Eastam District of Loni-
aiana.
The French ship Garonne, from Havre, and
the snip Fortune, also from Havre, were libeled
by several proceedings by the United States at
Sew Orleans, in the District Court of the
United Statee, January, 1836, under the pro-
visions of the firat section of tbe Act of Con-
gress passed April 20, 181S, entitled "An Act
in addition to an act to prohibit the Introduc-
tion of slaves into any port or place w.thin the
jurisdiction of the United States, from and af-
ter the firat day of January, 1808, and to re-
peal certain parts of the same."
The ship (iaronne had arrived in New Or-
leans about the Zlst of November, 1S35, hav-
ing on board a female, Priioilla, who had been
dent in New Orleans. Mrs. Smith and her
daughter being in ill health, went from New
Orleans with her family, in 1835, to Havre,
taking with her, as a servant, Prisciila; having
previously obtained from the mayor of the city
a passport for the stave, to prove that she had
been carried out of the Slate, and that she
ahouid again be admitted into the same. Pris-
cilia being desirous of returning to New Or-
leans from Paris, waa sent back on board the
'Garonne, under a passport from the [*T4
charge dea airaires of tbe United States, in
which she waa described as a woman of color,
the servant of a citizen of the United States.
On the arrival of the ship, the baggage of the
girl was regularly returned as that of the slave
of Urs. Smith.
The facts of the case of the ship Fortune
were as foltowsi Ur. Pecquet, a citixen of New
Orleans, went to France in 1831, taking with
him two servants, who were hie slaves, as was
alleged tn tfae testimony with an intention to
emancipate them. They remained with the
family of Mr. Pecquet in France, for some
time, and returned to New Orleans at their
own Instance in the ship Fortune, in 1836, as
waa asserted, as free persons. The passport of
the American legation represented these females
as domesticB of Hr. Pecquet, of New Orleans,
a citisea of the United States. After their re-
turn to New Orleans, it did not appear that
they were claimed or held by tbe agent of Ur.
Pecquet or by any persons ae slaves, but no
deed of emancipation for either of them had
been executed. On the arrival of the Fortune,
in the list of passengers which was certified
under the oath of the captain, these persons,
by name, were stated to be the alaves of Mr.
Pecquet. The declarations of Mr. Pccouet that
these persons were brought back as free, and
that it was his intention that they should be
free, were In evidence.
The District Court of Louisiana dismissed
both the libels, and the United States prose-
cuted these appeals.
Tbe case waa argued by Mr. Butler, Attor-
ney-General, for the United States, and by Ur.
Jones for the defendants.
Mr. Butler stated that in the case of the
Garonne the question was presented whether a
slave who bad been carried out of the United
States by a master, could be afterwards bmoght
back to tbe United Sutes.
Tbe words of ths ststuts are that "it shall
u
SuTBEua CovKt OF TUB Unitsd Statbb.
not be lawful to import or bring, in ao^
manner whsUoever, into ttie United Suttea,"
etc., "any negro, mulatto, or person ol coiur."
witli intent to hold, aell, or dispose of "such
persona as a. aJave, or to. be held to service or
It la not claimed that the United Slates have,
under the constitutional powur "to regulate
commerce," a right to interfere with the regu.
3&*] lationa *of States as to ijlaves. The
powers of Congress apply to foreign commerce.
The words uf the statute are, "import" or
"bring," and the case stated in the proceed-
ings is fairly witliiii the law. The pereuiis were
brought into the tiiute uf Louisiaiia as tilaves,
and are here held as such. 11 the wuids of the
■tatute comprehend the case, the court will up-
5\y them; and they will nut be restrained from
oing BO by the suppusitiun that the case to
which they apply wua not intended by Con-
In the case of the ship fortune, the Attur-
Dcy-Geueral argued that there was error in the
decree of the district jUdge in dismissing lue
libel of the United States, on the (^loiinu that
as the persons of color brought into Nrw Or-
leans were free, the act of Congress wub uoi.
violated. This was not the issue. Tlie ulii-^o-
tion on the part of the United Sttn-cn i>, >.>iu
the evidence establishes, that persims ot L*uiur
were brought into the United Siutus by lue
ship Fortune, and that thoy were to be held >o
aeivice or labor, either as slaves or other»i«c.
In either ease the law is brokeu, and the pi-iml-
ties are incurred by the ship.
It is nut uecesaary to show that the perauna
were held as slaves after their arrival in Xew
Orleana. Were the; brought iii.u the United
States as slaves! This is esLulillshed by the
list of passengers sworn to by the captain of
the ship. After naming them, he slates, "these
two Qegresucs are slaves of Mr. i'tcquet, and
are sent to New Orleans by their muster. In
The United IStatea v. Goading, 12 Wheat. 460;
6 Cond. Kep. 572, it was decided that the decla-
rations of the master of a ship in the transac-
Tbu declaration of the
in the course of his duty. If the persons were
brought to the United States, not as slaves, but
to be held to service or labor, the case ia the
If the construction given by the Diitrict
Court of Louisiana is maintained, the Act of
1S07, to which this is a supplement, will be dc'
feated. The objects and purposes of that law
were to prevent any persons of color being
brought into the United States to be held to
service or labor. If evidence of intention is to
acquit, the law will be null. The question is
whether not havios made the persons brought
in the vessel free, the intention only to emanci-
pate them will operate to defeat the law. Sup-
pose tlie intention of the owner, or his instruc-
tioni to his agent not carried Into effect, how
76*1 would tne 'case standi Could not the
persona have been sold as slaves after their ar-
rival T VVoutd the intention to emancipate them
give a substantial claim to freedom I
Congress had power to pass this law. They
may have thought that it an owner of slaves
carried them to a foreign country, he ought not
Mr. Jones, for the claimanta of the OaroaM
and for the claimants of the Fortune.
The government of the United States haa m
ii>;lit 10 iuterfeie with the property of the own-
eis of slaves, nor was it the object of tlie law
on which these proceedings are founded to do
so. The persons who were brought in the Gaf-
unne were slaves in Paris, and when they re-
turned they came to a domicile they had naver
lust. Sojourning in France did not deprive
thum of thi-ir domicile. The case may be lUus'
tialed by suppoeing a Maryland gentleman
shall take his slave with him, when traveling
into Virginia. Ue could not, according to the
principles cuntended for by the United States,
oriuB him back. But this is a misconception of
the law. li was intended to apply to per-
bons brought from foreign countries, and who
were so imported for the purpose of their be-
ing slaves. Its whole application is to the
bhive trade. To prohibit the return 'of slaves
irom a foreign country, to which they may
have accompanied their owners, ia a direct iS'
Lerference with the rights of those owners, aad
is against tlie Constitutiuu of the United Statsa.
Hut if these views of the case left it in any
doubt, the whole of the case of the Fortune
?iio>is that the persona of color brought from
llnvi'c tsere tree. They had been discharged
iruui slavery by their master, and were entitled
Lu be cm J ut' I pa led. In • cuurt of equity, their
>.liiim to iriredum could have been suMtantiatad.
.Ill the iBcls of the case exclude the supposi-
..ua that liiey were to be held to sarviee «
Mr. Chief Justice Taney delivered the opinioa
of the court:
I'hese Iwo cases are appeals from decrees of
tlie Uiatriut Court for the Eastern District of
Louiaiana, upon libels filed by the district at-
torney against these said ships, their tacLle,
apjiai'el, and furniture, for alleged breaches uf
the Act of Congress of April 20, 191S, vol. S,
32o, prohibiting' the importation of slavea into
the Unitid Statta.
in the case of The Ship Garonne, the facts
cilia, a person of cotor, born in Louisiana, was
a slave; the property of the widow Smith, wba
was a native of the same State. Mrs. Smitk
and her daughter, Madam Couchain, bring ii
an ill state of health, left New Orleana with her
family for France, tn 1835, taking with her as
a servant the above-mentioned strl. PrisciUa
being desirous of returning to New Orleans,
Air. Couchain, the son-in-law of Ura. Smith,
through the intervention of a friend, procured
for her a passage in the ship Garonne from
Havre to New Ovlcana: and since her arrival at
that place she has lived at the house of Mn.
Smith, and is held as her slave.
Upon this statement of facts, the question ii
presented whether Mrs. Smith, a resident of
i.,ouisiana, going abroad, and sojourning for a
tima in a foreign country, and taking with her
one of her slaves as ft.n attendant, may Iswfnl-
ly bring or send her back to her home, with in-
tent to hold her as before in her service. It
does not appear from the evidence ai admis-
sions in the case, whether the laws of Franc*
IW
EVAKB
mtioduetlon Into that country. But tbia ul-
mission is not mRt«rial to the deciBion. For
even aBHuming that by the Frencb law she was
•ntitled to freedom, the court is of opinUin
that there is nothing ia the act of Conjjr,-54
under which these pioccedings were had In pre-
vent her mistress from bringing or senilinij her
bkck to her place of reaitli^nce, and conliuiiing
ta hold her at before in her service.
Tbe object of the law In qui'slion was to put
•n end to the stave trade, and to prevent the
mtroduction of slaves into the United Slates
from other cuuntrics. Tl>e liliel in tins caiie
iras filed under the first section of the act,
which declares, that it shall not be lawful
to import or bring in anj manner Into tlic
United States or territories thereof, from any
foreign kingdom, place, or country, anj' ne-
gre, mulatto, or person of color, with intent
to hold, sell, or dispose of aucti negro, mu'
Iktto, or iterson of color, as a slave, or to be
held to aerviee or labor;" and then proceeds to
make the vc'^ael liable to forfeiture which shall
be employed in such importation. The language
of the law above recited ia obviously pointed
against the introduction of nesroes or mulat-
toes who were iiiLabilants of fortign coun-
tries, and cannot properly be applied to persons
of color who are domiciled in the United Stalea,
and who arc brought back to their place of
residence after a temporary absence. In the
csaa before the court, although the girl bad
T8*] been staying for a time in 'France in the
•erTice of her mistress, yet in eonstriiction of
law, the continued an inhabitant of Louisiana,
and her return home ia the manner stated in
Ub record waa not the importation of B. slave
into the United States, and, cunsccjucntly, does
not aubject the vessEl to forfeiture.
If the construction we have given to this sec-
tion of tbe law needed confirmation, it will lie
found in the exception contained in the fourth
■ectfoQ of the law in relation to persons of color
who are "inhabitants, or held to service by the
laws of either of tbe States or territories of the
United States," This section prohibits our
own citizens, and all other persons resident in
tha United States, from taking on board of any
veaael, or transporting from any foreign coun-
try or place, any negro or mulatto, "not being
aa inhabitant, nor held to service by the iawa
of either of the States or tcrritoriea of the
UniUd Statea," Under this section, the mere
act of taking or receiving on board the colored
person in a foreign country, with the intent t«
tell, or hold such person in slavery, constitutea
the offense. But Inasmuch as Priscilla was an
inhabitant of New Orleans, and held to service
by the laws of Louisiana, if tbe caplatn of au
AJserican vessel had taken her on board at
Harre for the purpose of transporting her to
Louisiana, there to be held in slavery, it is very
dear that by reason of the exception above
mentioned, the act of receiving her in his ves-
wl for BUch a purpose would have been no of-
fense; while the taking on hoard of a negro or
mulatto, who was the inhabitant of any other
country, would have been a high miiidemeanor,
and subjected the party to severe punishment,
and tbe vessel to forfeiture. It would be ditTi-
nilt to assign a reason for this discrimination.
if Uie persons of color described in the exreu-
tioB could not be brought to this country with-
• Iked.
out subjecting tbe veaiel t« forfeiture; and Um
exception made in this section in relation to
those who are inhabitants, or held to service
by the laws of either of the States or territories
of the United States, proves that Congress did
not intend to interfere with perauna of that
dc^criptiun, nor to prohibit our vessels from
tiunrporting them from foreign countries back
to the United States.
Tlie principles above stated decide also the
case of The United States v. The Ship Fortune.
We think there is enough in the record to show
that the persons of color therein mentioned
were sent to New Orleans, the place of their
riMidonce, for the purpose of being there majiu-
miUud, and not to be held in slavery. But it is
unneeeasary *to go into an examination f*7»
of the evidence on this point, because in tlther
cnsc the bringing them hone was not an offense
against the act of Congress, and the vessel in
wliich they returned is not, on that aecount,
liable to seizure and conde in nation.
The decree of the District Court must there-
fore be affirmed in each of these cases.
These causes came on to be beard on tbe
tranacripts of the record from the District
Court of the United States for the Eaatem Dis-
trict of I»ulsiBna, and were argued by counsel]
on Ci^naiderHtion whereof, it is now here ordered
and decreed by this court that the decree of tbe
aaiil District Court in each of the causes be,
and the same is hereby affirmed.
•THOSfAS EVANS, Plaintiff in Error, |-80
STERLING H. GEE.
.Jurisdiction — Evidence aa to residence of par-
ties not admissible under general issue— 4a-
dovsement in blank — relation of parties to
bill of exchange — waiver of irregularities.
e [D favor of anotber citlten
It made upon It b; .. ._
_ ...-. tbe blanli Inrlorsrmi'nt was conterted Into
a lol! iDdoraeoieiit. b; writing the worda, "pay to
eterllng H. Oee. " tbe plnlnlii! over the iDdorwr't
Dame. The bill wsa protested tor nonacceptance.
and a suit wss Instituted on It, before tbe iaj ol
iiBrmcDl, agniuat the I d do vac r. In tbe District
Court of tbe United States tor tbe District ol
Alabama. The Dlstiict Court rnjected cvldenc*
ofered bj tbe defenilBnt to staow Ibit the bill war
Elven hj him to the partner of the |)lBliitllt, t
resident In Alabams. (or piopert.v owned bv Dill
and the plalntllT. they being conarCneri ; that tb*
■□dorarinvut, when given, wsa In bisak, and thai
the drawer and drawee of tbe bill are also citl
zcDs of AlBliama. The Dlatrlct Court also re
Jerted the evidence. Inatructlnc tbe ]ur* that tht
Indompment In blank autborlzed the plafatIS to HI'
cepted. Held, that there was no error In the Id
sti'uctlons of tbe DIatiict Court. Evldenn to
sbow that tbe original parties to tbe bill ol ei-
NoTi.—As to Jurisdiction of tbe United Btatea
courti. depending on cltlzenahlp and realdencc. see
notes to I l~ ed. V. 8. (141) :! L. *d. U. S. 43B ;
I L. ed. U. 8. X8T i 36 L. td. D. S. 679.
•II
SuFMuu CouBT or TOB Unm Stath.
is>r
* dllieiu «( tlM ■
< Stata, It oircrcd
Tl» rule nu csUbllsbed b/ tb« court In Youde
r. BtjtB, e Wtint. 146, that tbg Circuit Coart of
the United SUt)
a ot B different 8
■alt could be brougbt In thst court b; tl
doreee ualoit tbe maker, or not.
Tbe bona fide holder of a bill of eicbange
rlgbt to write over a blank Indoraement, dlr
to whom the bill shall be paid, at anr time I
or after the Instllution oC a ault. This la tb
tied iSoctrlce la the ESEllsh and American ci
and the bolder, by wrfting auch direction e
blank Indoreement ordering the moneT to In
to a particular person, doei not became an lod
A ault mat be brousbt igalust the drawer a
... r-. — cepted, falls to jiaj.
A refusal to accept 1b then a breach of tbe coniracl
upon the happeufnE of which a right of action In-
■taatlT accme* to the payee, to recover from Ibe
drawer the Talue eipreiwed In the bill ; that belna
■ drawer of the same bill npon the
. . . eil on the (ace of It.
It waa urged that tbe traaacclj>t of tbi
•1 ■
ease bad been
defeni
ilde had been overruled ; that the
.- jubmltted to the Jury without an
m the parties, and that the Tcrdlct
.._ . ... .... . pad of .
Srors. On these alleged grounds. It waa claimed
at tbe judgment of tbe District Court should be
reversed, Kv thk Coubt : Whatever mlRht have
been the original Im per feci Ions. If nut waived ei-
preuty, they were so by the defendant going to
trial upon the merits : and thus they cannot cdd-
■tltuts an objection to the Judgment on a writ of
The defendajit in error, Sterling H. Gee, ft
citizen of the State of North Carolina, Inati-
tuted an action of assumpsit in the District
Court, against Thomas Ejana, a citizen of the
State of Georgia. Tlie action was foundral on
a bill of exchange drawn by Harris Smith, in
Wilcox Countf, in the State of Alabama, De-
cember 16, 1834, on GeorgB M. Rives, at twelve
months after date, payable to tbe order of
Thomas Evans, and by him indorsed in biaak.
The bill was regularly protested for nonaceept-
ance, and the suit was brought without wait-
ing for the arrival of the day of payment. The
cause was tried at May Term, IS3S.
The defendant excepted to the opinion of the
court, and a verdict and judgment having been
given for the plaintiff, tbe defendant proae-
cuted this writ of error.
Tbe record showed that at May Term, 1836,
the defendant filed a demurrer to the plaintiff's
declaration, which was in the common form;
and that at tbe December Term of the court
following, " the plaintiff takes nonsuit;" upon
which the court entered a judgment of nonsuit,
and immediately after, on motion, the judg-
ment of nonsuit was set aside.
At the fallowing May Term, no other plead-
ings having been filed, the case was Cried by a
jury, and a verdict, under the instructiona of
the oourt, was given in favor of the ptaintilT for
the whole amount clMined by Um, on which
•4*
the Bonrt entered a Judgment aoeording t« tha
Tbe bill of neeptions stated that the bill be-
ing relied on by tbe plaintiff to sustain hia ac-
tion, together with proof of protest for non-
acceptance and notice to the drawer and ts-
dorser of the protest for nonacceptance; the de-
fendant offered to prove by way of defeaaa
against the said evidence that the said bill waa
given by tbe said defendant to Charles J. Oea,
for property purchased by him; that *the [*lt
property belonged jointly to Charles J. Oee,
and Sterling H. Gee, the plaintiff; that they
then were, and continued to be, and now at«,
general copartners; that when the indorse-
ment was made on the bill it was indorsed in
blank, and that tbe said indorsement has been
flled up by the plaintiff's counsel since this suit
was commenced; that Charles S. Gee resides
in this State, and did when the suit was
brought, and is a citizen of the State of Ala-
bama; and that the defendant, and H. B. Evauk
and George M. Rives are also, and were citiiena
of this State. Tllis evidence the court reject-
ed, on the ground that the indorsement having
been made and given In blank, tbe plaintiff was
authorized to flII up as above shown-, and
that the facts above set forth could eonatituta
no defense, and were not proiwr evidence. The
court further instructed the jury that the bill
being drawn in this State, and on a person re-
siding in this State, and made payable in this
State, that upon nonacceptance and notice, the
indoner waa liable for ten per cent, damages
on tbe amount of the bill for want of accept-
ance therefor.
Tht case wu argued by Mr. Key for tlie
plaintiff in error, and b; Mr. Ogdea for the
defendant.
Mr. Justice Wayne delivered the opinion ot
the court:
This action is brought upon a bill of exchange
of which the following is a copy.
«G,360
Wilcox County, Dec. 16, 1S34-
Twelve months after date of this, my sole
and only bill of same tenor and date, par to
the order of Thomas Evans, five thousand threa
hundred and fifty dollars; negotiable and pay-
able at the office of discount and deposit branch
bank of the United States at Mobile, for tbIm
received, this, the 16th day of December. ISM
H. Smith Evans.
To George M. Rives, Mobile.
The plaintiff in error, the payee of the bill,
indorsed the same in blank, and the defendant
in error became the b<»ia fide holder of it by
delivery, though the indorsement in blank waa
at tbe time of delivery to the holder, by him-
self, and subsequently by hia attorney, con-
verted into a full indorsement; the words, "pay
to Sterling H. Gee," having been written over
the indorser'i name. Upon the trial of tht
cause in the court below, the bill, with proof of
protest for 'nonacceptance and notice to [*S3
the drawer and indorser of the proteat, waa
Siven in evidence. To resist a recovery, "tba
efendant offered to prove that tbe bJU wm
given by him to Charles Gee, for property pnr-
chaeed by himself; that the property belonged
jointW to Cbarlea J. Gee and Sterling H. Ge«,
the plaintiff; that they then were and eontiana
t« p«, 4nd mow are, gsnval eopartnan; thftt
ratcH !»•
Ittt ft
when tke {ndoraement wms mada It wa.
blank. Mid tb»t the laid indorument h»s baen
tilled up by the plaintiff^ coudmI Bliice the mit
had becD eommenMd ; that Charles J. Ge« rc-
■idea in this State, and did when the mit waa
brought, and is a citizen of the Btat« of Ala-
banoa; and that H. Smith Evans, and Oeorgc
M RiTes, the drawer and drawee of the blTli
■r* also and were eitiietia of the State." Tbe
court rejected this eTidenee, Stating "that tha
hidorsement harlng been made and giver '~
blank, the plaintiff was authorized to fill 1, .
as had been done; and that the facte set fortb
caald constitute no defense, and wan not
proper evidence; the court further Instracted
the Jury that the bill being drawn in this State,
bj a peroon residing in the State, and made
payable in the State, ueon nonaeceptanoe and
notke the indorser was liable for ten per eent.
damages on the amount of the bill for no
eeptance,"
We nmsidcT the court was right In rejecting
the evidence, and in instructing the jury aa to
the liabirity of the Indorser for damages.
If by the evidence proposed It waa intended
to deny the jurisdiction of the court, on ao-
eount of the eittzenehlp cr[ the [HUlieB to the
action, that being averred on the record, a plea
to the juriedictlon should have been filed, and
•neb evidence waa iuadmissihle under the gen-
eral issue. If It was intended to apply to the
Jurisdiction on account of the original parties
to the bill having been citizens of the same
State when the bill waa drawn, then the rule
laid down by this court in Turner, Adms., v.
The Bank of North America, 4 Dall. S, which
was a suit hy the Indorsee of a promissory note
against the drawer, does not apply to the par-
ties in this case; but the rule established in
Young r. Bryan ct al., 0 Wheat. 146, does ap-
ply; which was that the Circuit Court has
Jurisdiction of a suit brought by the indorsee
of a promissory note who was a citizen of one
State, against the indorser who Is a cltisen of
a difTerent State, whether a suit could be
brought in that court by the Indorsee against
the maker or not. This is a case of an in-
dorsee of one State suing an indoreer of a dif-
ferent State. If the eridence was intended to
reeist a recovery upon the merits, on account
of the interest which another copartner
• 4*] *0T other person had in the consideration
for which the bill was indorsed, we observe the
plaintiff, being the bona fide holder of it, such
a fact could not be inquired into in an action
on the bill, as It would import a different
bargain and agreement from the tenor of the
bill and indorsement when the bill was given
or transferred; and a copartner** interest could
only be inquired into in a suit in equity be-
tween the copartners for its recovery.
As regards the right of a bona fide bolder of
a bill to write over a blank indorsement, to
whom fhe bill shall be paid, at any time be-
fore or after the Institution of a suit against
the indorser; it has long been the settled
doctrine in the English and American courts;
and the liolder by writing such direction over a
blank indorsement, ordering the money to be
Sd to particular persons does not become an
Draer. Eden v. The East India Company, 2
. BiUT. 1210; Com. 311; Btr. 6G7i Vincent v.
Halock, 1 Camp. B; Snith v. CUrk, PMkc,e2a.
But It waa uned tn arnmsnt that thia aoH
Muld not be maintained, bacaase it appears by
the record that the action waa brought before
the expiration of the time United by the bin
for Its payment. The law la otherwiae upon
reason and authority. The undertaldng of tba
drawer ia not that he will pay tlia bill, but
that the drawee will accept and pay; and the
liability of the drawer mily attacKes when the
drawee refusea to accept ; or having accepted,
fails to pav, A refusal to accept is, then, a
breach of the contract, npon the happening of
whieh a right of action instantly accrues to the
payee to recover from the drawer the value ex-
pressed io the bill, that being the oonsideration
which the payee gave for it. Such is also the
undertaking of en indorser before the bill haa
been presented for acceptance, he lieing in fact
a new drawer of the same bill upon the terms
expressed on the face of tt. The case of an in-
doreer ia not distinguishable from that of a
drawer io regard to such liability. Ballingals
V. Oloster, 3 East, 4B1; Uilford v. Mayer,
Dougl. 56; Mason & Bmedee v. Franklin, 3
Johns. Z02.
As to the damages which the court ruled the
indorser In tJiis case to be liable for, wa need
only say the statute of Alabama ^vei them,
and applies directly to the case. Aiken's Ala-
bama Digest, sea, sac. 6. "Every bill of ex-
change, of the sum of twenty dollar* and up-
wards, drawn In, or dated at, and from any
place In this territory, and payable at a cer-
tain number of days, weeks, or months after
dale or sight thereof, shall, in case of non-
acceptance by tbe •drawee, when present- [*8ll
cd for acceptance; or if accepted In case of non-
payment by the drawee, when due and pre-
sented for payment, be protested by_ a notary
public, in like manner as foreign bills of ex-
change, and the damages on such bill shall be
ten per eent. on the sum drawn for, and shall
in every other respect be regulated and gov-
erned by the same laws, customs, and usages,
which regulate and govern foreign bills of ex-
change. Provided, that such protest shall for
wsnt or in default of a notary public, be made
by any justice of the peace, whose act in such
case shall have the same effect as if done by a
notary pubHe."
The counsel for the plaintiff In error also
contended for the reversal of the Judgment, on
the gr6und of sundry irregularities In the prog-
ress of the cause in tbe court below, apparent
on the record. Such as that a general demur-
rer had been filed, and hod not been disposed
of; that a nonsuit had been taken by the plain-
tiff in error, and that a motion to set It aside
had been overruled; that the case had bees
submitted to a jury without an issue between
the partiea; and, finally, that the verdict. If
an issue waa made, had beeu returned by eleven,
instead of twelve Jurors. Theoe irregularitiea,
whatever might have been their original Im-
perfections, If not waived, were, in our opinion,
waived by the defendant going to trial upon
the merits, and cannot now constitute any ob-
jection upon the present writ of error. For a
writ of error does not bring up for review any
irregularities of this sort.
Judgment offlrmed, with alx per eent. dam-
agea.
<«1
SmuiK tNion or ttat XiKvem Staim.
UM
TUi eaute ume on to U beard on the tran-
■cript of the record from the District Court of
the United States for the Southern District of
Alabama, aod waa argued by counsel; on
aideration whereof, it is ordered aod adjudged
bj this court that the Judgment of the said
District Court in this cause be, and the same
is hereb; aitirmcd, with costs and damages
the rata of six per centum per annum.
JACOB and ISAAC LEFFLBB.
Evidence that suret; signed bond apos con-
dition which had not been fulfilled, ad-
missible.
The United BUtes Instltoted a lalat action
i:i.u,-:,i.. ._.■_:. .:....„■
prlodpsl Id the bond, caatetsed
jaiea, etc., and bis sureties. The dcteodsat,
prlodpsl Id the bond, caatetsed a JudKmeDt.
cogaOTlt acllanem, aad tbe Dnlted StBli
d dors
sgaliiBt tala bodj, on tile ludgmenl: uu<
which he was Imprisoned, and wsa afterwsrdB dl
laws or tbe Cnlted States. The United Btatei pro^
ceeded aealusl Ibe other defeadaDts. and oa the
trial ot iGe canse before a jury, the principal In the
bond hBTlng been relcsaed by his co-obllsoni. wa-
olTered bv the dereadante, and adrnttted by tb
Circuit (Touit to proTc that one or the co olillKOi
bad executed [be boDd on ecndltlon that athei
would eiecute It, n-blch had not been done, Td
Circuit Court udmltlpd the evidence. Held, the
there vas no error In the declalan.
The principle aettl^Hl by this court In tbe ease of
The Bank of^tbe United Ststcs t. Dunn, e Peteri,
51. goes to the eiclualon ot tbe evidence ol a
party to a pesotlable Instrument, u]>on the ground
ot the currency given to It by the natne ot tht
vltnesa called to impeaeb Its valid
citend to any other case to whlcl
does not apply.
IN error to tfaa Circuit Court of the United
States for the Eastern District of Virginia.
The United States instituted an action of
debt OB a joint and several bond executed on
the eth of December, ISia. by Salathiel Cur-
tis, Jacob Leffler, Isaac Leffler, Benjamin Bigue,
and Reuben Foreman, conditioned for the faiin-
ful performance bj Salathiel Curtis of the
dunes of collector of taxes then held by him.
The cause abated as to Biggs and Foreman, b;
their deaths.
After the institution of the suit, and prior to
the trial of tbe same against Jacob and Isaac
Leffler, the defendants in error, Salathiel Cur-
tis, who had appeared and pleaded to the ac-
tion, by his attorney, withdrew his plea; and,
having said nothing in bar to the action of the
plaintifTt, the court, on consideration thereof,
save judgment for the plaintiffs against him
for the debt mentioned in the declaration, with
costs. Afterwards, the United States sued out
an execution on the judgment against the body
of the defendant, who waa taken, and was in
the custody of the marshal; when, he being in
such custody, under a warrant from the Presi-
dent of the United States, bearing date on the
eighth day of May, 1824, he was duly dia-
B1"i charged from 'custody, under the in-
aolvaat laws of the United States, he having
the suit against the defendants, Jaoob nA
Isaac LelBer, in Deoember, 163S, upon iasuM
joined on two pleas of Jacob Leffler; the Srit
being a plea of non eat factum, and the second
a speciaf plea, to the same effect, setting forth
that he had executed the bond in question is
an escrow, and on the condition that it should
be executed by certain other persons, aa co-
sureties for Salathiel Curtis, who did not exe-
cute the same. On tbe trial of the cause, ths
defendant, Jacob Leffler, to support the issiis
of non est factum, offered in evidence the dep-
osition of Salathiel Curtis, which devposition
was objected to by the district attorney of the
United States. The deposition stated that
Jacob Leffler and Reuben Foreman ejtecuted the
lx>nd under the impresaion and on the con-
dition that th« deponent could proeure the
signatures of other persons to the auna, and
they were not so procured.
The competency of the witness being so ob-
jected to on the part of the United States, evi-
deijce of the proceedings against him to judg-
ment and execution, and of his discharge under
the insolvent laws of the United States, was
given by the defendant Jacob LefHer; and ths
Circuit Court having overruled the objection,
the deposition taken after the said proceeding
was admitted in evidence. The jury fouod a
verdict for the defendant, in which judgment
was given, and the United States having taken
a bill of exceptions to tbe evidence, tbjs writ
of error was prosecuted in their behalf.
The case was argued by Mr. Butlei, At-
torney-General, for the plaintiffs in error, and
by Mr. Webster for the defendants.
Mr. Butler contended that the deposition of
Salathiel Curtis was not admissible m evidence,
and tlutt the judgment of the Circuit Court
should therefore be reversed, and a venire d«
novo awarded.
The precise queation involved in the case be-
fore the court arose in the case of Pauling t.
The United States, 4 Cranch, 21B, hut it waa
not decidrd. The United States now insisted
that the principal obligor in a bond is not a
witness to invalidate it, he having affirmed it
by executing it, and having by hia own falsn-
hood and fraud involved the public in the loasos
they sustained, by entering on his duties as tfaa
collector of taxea, under such circumstances.
le case of Walton v. Shelly, 1 Term Re-
ports was the first case 'which decided [*SS
tbe principle on which the admission of this
evidence is resisted. While it ia admitted the
decisions of the courts of the different Slates
vary as to the rule adopted in the case referred
to, this court, in the case of The Bank of
the L'nited States v. Dunn, hove asserted aod
applied it. a Peters, 57. In Virginia, in a cbm
in 3 Randolph's Rep. 31Q, iC has been expreM-
ly repudiated.
It makes no difference where the bond was
nxei'utcd; and althouRli executed in Vi^inisL,
it looked to tbe city of Washington for the per-
formance of the conditions imposed by it; tha
principal obligor being a collector of taxes, and
required by the law under which he acted to
■int for the taxes collected by him st tbe
sury Department. This was so decided in
the case of Coxe v. Dick, 6 Peters, ITS, 202. A
bond executed in Louisiana was to be coa-
sidei'ed aa made in the District of Columbia.
retets 11.
laff
Tiu Ukitbh Btxtmb i
That U k aliglit differ«nc« between the con-
dition of the bond in the two caoei, but the
dilTcrence ia more f&vonble to the prini^iple
flaimed. Tn this caw, the dutiet ot the officer
performed according to taw;
Cort
a tha I
officer might be directed. If the
district IB to prevail, the esse la decided; for
Ihw QODTt has said that no one who bMt put hia
Dame to an inatniment shall be permitted to
discredit it. It ta admitted tiiat the case re-
ferred to waa like that of Walton v. Sliellj,
in which the instrument waa negotislite.
But If the law of Virginia ia to prevail, it
will be ahown that the witness was a party to
the suit, was interested in it, and could not by
the drrcndant'a release be made a witnesi.
The suit waa brought on a joint and several
bond, but the platntilTs have united to treat it
aa a Joint bond. It ia a rule in Vir^nia that
In an action on a joint and several bond, the
plaintitT may treat it aa he plcasea, but if he
treats it as a joint bond, he must sue all; he
cannot sue only a part of the obligors. 1 Heu-
iu^ and Munford, 01; 1 Munford, 40fl. This
•uit is against all the five obligors, and If the
t'nited States fail to make out a joint obli-
gation they will be defeated.
Anything which may serve an individual for
hii own defeiiBc may be given in evidence, aa
in eases of bankruptcy In England, and cases
of infancy there and here. But such evidence
will \m applicable to the person of the individ-
ual obligor, after Its execution, and not to the
execution of the instrument, as it misht defeat
the whole action, by destroying the joint action.
8t*] If It should appear 'that one of the
obligora executed the bond on a condition that
made it void, the bond would be void. Thia
is distinctly atated in 4 Cranch, 823.
In the case of a forged signature to a Joint
bond, the whole action on it would fail on proof
of the forgery. Not so when the action waa
several. A joint aetion, or a joint and aeveral
3ne, la defeated aa to all when it is defeated
BB to one. 2 Munford, 33; Z Bin. Rep. 195; 3
Randolph. 316, 32T, 334, 340, 351, 3ij7, 360. In
thia caae It was held that a defendant, or a
party to a joint bond, could not be releaaed by
nis eo-obligor, as be ia liable to coata, notwith-
standing his release. 3 Leigh'a Rep. 590.
Tlieae casea are in conformity with the roles
of the common law. One defendant cannot give
judgment against himself, to make bimseli »
witness, ana defeat the whole Instrument.
3. A party to a suit cannot b« called aa
witness. He is incompetent because he is a
Krty to the record. Thia la a general rule of
a common law, and the ojily case in which
such party can he a witness, is nbere his testi-
mony will not alTect the original contract. The
rule which excludes a party to the record from
Cving evidence Is peculiar to ths common law.
. eouity it is otherwise.
It is, therefore, only necessary to show that
Salathiel Curtis was a party to the record-
TUa is apparent on the face of the proceedings.
He waa so originally, and he continued to be
Ml At to tbe judgment entered agalnat him
li»Tliig made him no party to the subsequent
pTOceedinga, It is contended that the judgment
WW Irregular. The practice in all eonrta ia to
eontinue Uw cMC M M « defendant who )* tft
default, until the eanaa ahall be determtnad
against alt. This shows tbe proceeding to bava
been irregular. The fact that liie attorney of
the Ignited States made no objection to it, and
nfterwarda issued execution on it, dom not
alter the cshb. It was irregular, It was void
and could not be made valid. It could have
been set aside. TItat Curtia sufTirod impriaon-
ment does not cure the defect of the judgment.
Tlip discimrge of Curtis by the Vnitcd States
lias no influence in this case. The discharge
was not of hia debts, but from the tmprieon-
ment. C Petera, 1S6; 1 Peters, 673; 1 Galtiaoa,
In any view whi
ihe auit a party namrd in the record;'he jiad •
dormant, but a substantial interest in its
result, both as to tbe 'amount of the r«- (*»0
covery and between tbe parties for coats, and
For costs to tbe United States on a general
judgment to the parties to the bond.
If there ia any cane in which the moial pur>
poaea of the rule will apply, it is this now be>
fore the court, aa public policy; the rule which
excludes a party to an instrument from dis-
crediting it should be extended, emphatically,
when a public officer who has given currfUcy to
an obligation, and has by It obtained tbe confi-
dence and the funds of the goveinment. should
not be allowed to defeat it. The government ia
obliged to act through agents, and will be ex-
posed extensively to frauds unless protected by
the application of tbe principle to such cases.
This IB not a reason for asking the court to
vary an eatnbliahed rule of law, but It it a
sufficient reason for asking the court to ex-
tend a principle declared by It to be the law
in tbe caae of The Bank of the United States
V. Dunn, to a caae which required it.
No decision of thia couit haa been given
which allows a party to the record to be a wit-
ness. In New York, tbe Supreme Court haa
decided that the rule ia inflexible, and he la al-
ways exriuded.
Ur. Webster, for the defendant. Tbe case tn
the court below was on a bond executed by five
persons, four of whom were the sureties of tha
other for the performance of the duties of col-
lector. When the trial took place the state of
the pleadings waa as follows: Two of the obli-
gors were deadi one had made "a cognovit,"
and the United States had chosen to take a
judgment aESinat him and had proceeded to
execution. He could not have compelled them
to go on. The other two pleaded non est
fsi-'tum, and that tbe bond was an escrow. The
case was tried on these issues; and before the
trial, the witness against whom jud^^ent had
been taken, had been relcHSed by the defend-
ants. His testimony was admitted to prove
that the bond was exrciitcd on a condition
which was not performed
The objcctiona to the witness ore, 1. That he
repudiated the instrument. E. That be had an
interest in the result o( the auit. 3. That ha
was a party to the record at the time of tbe
trial, and aa such cannot be permitted to
testify.
Aa to tbe firat objection, the cases of Walton
V. Bhelly, and Bent v. Baker, and all the aub-
sequcnt cases, apply this princinle to negotia-
ble inatnuncftts, ud to them onlr. TUs Is ex-
Bnrnm Cobir of tmm Uxrh) Staiu.
prculr uid t>7 thb Mmrt In The BmiIc of the
United EUtei t. Dunn, « Peters, 66. No
• 1*] 'decJBioo In anj court of the United
Stfttee ha.B extended the rule beyond negotiable
instninientR, and in Englc-nd the »ame qualifica-
tion hki prevailed. The doctrine never ap-
plied to a bond.
The second objection U to the intereit of the
party in the ault.
To lustain thia objection an attempt baa
been made to ahow that the whole proceedinge
agaluat Salathiel Curtil, the principal in the
bond, are void, and that a Judgment cannot be
talien againat one co-obligor wnen it is not ob-
tained Bgainat all who are joined with him.
This position cannot be maintained. After the
party has elected to proceed againat one, he
eannot afterwards treat the case differently.
He hae made the bond Mveral as to him against
whom judgment has been entered. Whether
when the pleas are several, and one defendant
Sleada that the bond was an escrow, the plain-
B may not proceed against the other obligors,
it ia not neceaaarj now to decide. The case
oited from 4 Cranch gives no support to the
position for which it wa« referred to.
How can Curtis be interested in the result of
thia BuitT A judgment had been entered
againat him, and the plaintiff had proceeded by
execution. No other judgment can be obtained.
The United States had mode its election, and
what other proceedings can be had against him.
The judgment remains in full force; if it had
been defective it should have been opened.
Could any judgment be entered againat him
for costs in thia suit againat LefflerT
Curtis is not a party to this auit He is in
BO part of its pleadings named aa a party. He
could not have made a motion in the cause.
He hod no day in court. The suit was simply
one against the defendants In error. In the
ease of Worrell v. Jones, 7 Bingham, 305, it
was held that a party to the record may be a
witnEBS if he hoa no mterest in the suit. Here
Curtis had no interest; or if he had, it was, un-
til he was releaaed by them, an Interest againat
the a
■eties.
Mr. Justice Baibour delivered the opinion of
the court:
This ta a writ of error to a judgment of the
Circuit Court of the United States for the
Fifth Circuit and Eastern District of Virginia.
It was an action of debt brought by the
United States againat Salathiel Curtis, Jacob
Leffler, laaac Ledler, Benjamin Biggs, and
Reuben Foreman, in the District Court for the
Western District of Virginia, upon a bond ex-
ecuted by Curtis aa principal, and the other
defendants as hia sureties; conditioned that
Curtis, who had been appointed collector of
direct taxes and internal duties for the fifth
• a*] "collection district of Virzinla. had truly
And faithfully discharged, and should continue
truly and faithfully to discharge the duties of
ibis office according to law, and should faith-
fully collect and pay, according to law, all
flioneys aBSCssed upon said district.
The breach charged in the declaration was
Chat Curtis had, during his continuance In
ofHoe, oolleeted the sum of «2,9B2.1S, of internal
duties arising from said district, which he had
Mled t* paj into the Treasury Dapaitment
«4«
according to law. Ta this deulsraiioo the de-
fendant Curtis separately filed Ihroe pKa*. (In-
defendant Jacob Leffler two. and tlip di'iViiili^n''
lacob Leffler, Isaac LefBer, Reuben Foreman.
term of the court next ensuing, the [lefi'ndanl
Curtis, the principal obligor, withdrew hia
Sleas; and thereupon his attorney saying thai
e was not Informed of any answer to be tpvt'ti
for aaid Curtis, and that he had nothing to say
in bar, or precluaion of the action, whereby he
lemained undefended, judgment was rendipred
againat him for the debt in the declaration
mentioned, to be discharged by the payment of
e2,336.B7, with interest from the 17th of
October, 1821, and the coste.
At the next tenn thereafter the pleas filed by
the other defendants were withdrawn, and they
flied a general demurrer to the declaration;
and the defendant, Jarib LefBer, filed two pleas,
to wit, a geneul and a special non eat factum;
and he and the other defendants, that is, Isaac
Leffler, Reuben Foreman, and Benjamin Bigg*,
filed several special pleaa jointly.
The plaintiffs joined in the demurrer, and
time was given them to demur or reply to the
other pleas. In this posture of the case, the
judge of the court Iming concerned la interest
in the cause, ordered it, together with an au-
thenticated copy of the proceedings, to be certi-
fied to the Circuit Court of the United Slates
for the Fifth Circuit and Eastern District ot
Virginia. This was accordingly don*;. In that
court the defendants, by leave of the court,
filed the plea of condiUona performed, on which
issue was joined; and by conaent of the
parties, and with the assent of the court, the
defendants withdrew all the pipas theretofore
filed by them, except the two pleas by the de-
fendant Jacob Le filer, of general and sjioi'ial
non eat factum; with the agreement that all
the matters alleged in the pleoa thus with-
drawn, and all other special matters, of which
the defendants should give the attorney ot the
United Slates reasonable notice, mi|;ht be
'gii'en in evidence upon the trial, provid- [*03
ed such matters would be admissible under any
proper form of pleading; and leave was grant-
ed to the attorney of the United States to
amend his dpclaration. At a subsequent term
the defendants, by leave ot the court, filed an
additional plea, to which the ptaintilTs de-
murred generally; which demurrer the court
sustained and overruled the plea. The plain-
tiffs thereupon filed an amended declaratjun
against at! the defendants, including Curtis.
against whom judgment had been rendered in
the District Court as before stated.
Upon this amended declaration and the pleas
and agreement last stated, the cause camt- on
to be triad in the Circuit Court at the Novem-
ber Term, 1S39, the death of the defendanta,
Biggs and Foreman, having been Qrat suggest-
ed, whereby the suit as to them abated.
On the trial, the defendant Jacob Leffler, to
support the issue joined on his special pica ol
non est factum, offered the ae position ol
Salathiel Curtis, the principal obligor in th*
bond; to the reading ot which the plaintiRs ob-
i'ected, upon the ground that the witness was
nterested in the event of the suit, and «a*
therefore incompetent.
TBI D>R» Statu t. tanuK.
S3
Bnt H mpBBuIng thtX judginent had bMn
randered id favor of tha plftintiffa ftgAinit lud
Cartii, and th»t mfterward*, and before the ez-
n of the wltneu, the United States
lued ont »a execution upon MJd judgment
m^kinat bia bodj, which waa duly levied upon
bim by tlis maralial, and that whilst he, the
■aid witnua, wa* in custody of the marshal,
ondar aaid execution, to wit. In the month of
Hay, 1S34, he was by virtue of a warrant from
the President of the United 6Utet, bearing
date tlie Bth of Hay, tBE4, duly discharged from
eostody under the insolvent law* of the
United Statea, he, tha aaid witoesa, liavlng
complied with the requisition* of said laws;
and it appearing moreover that before tha
examination of the witneaa, Jacob Leffler and
laaae LelUer, the only parties defendants in the
suit then alive, had executed to said witness a
releaae of all claim against him for any money
or other thing which he might be liable to pay
tham, or either of thero, by reason of any re-
covery or judgment that might be had againat
them, or either of them on said bond; and also
for any eoata incurred, or to be incurred by
them, or either of tliem, by reason of any suit
upon said bond, the court allowed the said dep-
osition to go in evidence to the jury, who
found a verdict tor the defendants; the plain-
tiffs thereupon Sted their exception, which
bringa before this court the question whether
t4*] the judgment *of the court below was
airaneoiiB, by reason of allowing sKld deposi-
tion to go in evidence to the jury.
In the argument, the counsel for the plain-
tiffs have teken three objections to the ad-
missibility of the evidence. 1st. That the wit-
neaa, being » public officer, bound to give bond
with raretiea, and having delivered over the
bond in this case to the government aa having
been duly executad by alt the obligors, who,
from Ita face, seemed to have executed it, to
allow the witness to prove that it bad beui
executed aa an escrow by some of them upon
a condition which had not happened, would be
to suffer him to allege his own turpitude.
Ed. That the witness waa incompetent, be-
cause he waa directly Interested in the event
of the anit.
Sd. That ha was incompetent, because he was
a party upon the record.
We wilt examine thesa objections U the or-
der in which they have been stated.
The lint is that the witness should not have
been received, because his evidence went to
prove his own turpitude. And in support of
this objection, we were referred, in the Urat
place, to the caaa of Walton et al. v. Shelly,
I Term. Hep. 290. It was. Indeed, decided in
that caaa that a party who had signed any in-
strument or security (without limitation as to
tke efaaraeter of the instrument) should not be
permitted to give evidence to Invalidate it It
was aaid that every man who is a party to an
instrument gives credit to it; that it was of
e to mankind that no person should
lag out false colors to deceive them, by first
Bxiag bis signature to a paper and then gtv-
lig testimony to invalidate it. And the dvil
law maxim, nema aiieKans auajn lurpiiuainem
andiendm eat, waa relied on. This caae waa
foDowed a few years after by that of Bent v.
Bakn, S nra Rep. S7, U vUcli It waa aaid
that the rule must be confined to negotiabla
instruments; and in I70S, the caae of .Htrdaine
V. L«shbrook, T Term Rep. 801, overruled the
case of Walton v. Shelly, even in regard to
thsm, by deciding that in an action by an in-
dorsee of a bill of exchange against the ac-
ceptor, the Utter may call the payee as a wit-
ness, to prove that the bill was void in its cre-
ation. And such is the doctrine which has since
been held in England. In this court, in the
case of The Bank of the United States v. Dunn,
6 Peters, 61, It waa decided that no man who
was a party to a negotiable instrument should
'be permitted, by his own testimony, to I'tS
"■' ' Iple thus settled by
iiafidate it.
The ptm
this court goes to the exclusion of such t
deuce only in regard to negotiable instruments,
upon the ground of the currency given to them
by the name of the witness called to impeach
their validity, and does not extend to any other
sufficient to defeat the objection which haa
been made to the witness, although he execut-
ed the bond, and although it was the bond of ■
public officer.
The second objection is that the witness waa
directly interested in the event of the suit.
This objection may be viewed in two re-
spects. 1st. Aa It respects the interest of the
witness arising from his liubility over to hie
co-obligors, who were his sureties. Ed. Aa it
respeots his interest as being, as it is contend-
ed, a party upon the record, and as such, liable
to a joint judgment with the other defendants,
Jacob and Istuic Leffier.
In relation to the Brat of these aspects. It it
certainly true that in general a principal obli-
gor cannot be a witness for bis co-obligors, who
are his sureties in the bond sued upon, even al-
though he be not a party; this is well settled,
both upon principle and authority; among oth-
er cases, it was so decided by this court in the
case of Riddle v. Moss, T Crancb, 200, upon
the plain ground that lie is liable to bis sure'
ties for costs in case judgment should be ren-
dered against them.
Now, although that waa once the position of
this witness, yet it was not such at the time
he was examined; for it appekrs by the bill of
exceptions that before his examination his
lurctiea had executed a release, in the moat
ample form, of all claim against him arising
out of their relation to him as sureties upon
the bond, embracing everything which could b«
recovered against them, including cost*.
There is, then, no interest in the witness in
the event of the cause arUing from his sup-
posed liability over to his sureties, the defend-
The second branch of the objection relates to
bia being, as it is contended, a party upon the
record, and aa such, liable to a joint jiidnDant
with the defendants, Jaoob and Isaac Lamer, in
this suit. In this respect, the whole ques-
tion resolves Itself into the inquiry whether
he is, or Is not a party upon the record; for
it is conceded, *aa it must necessarily be, [*9V
that ir he be not, then this branch of tile ob-
SuraUH Comr or tbx Ukitd BiAn
kction upon the bond, tbere oould Dot be ft
■c*era1 judgment against anj one of the obli-
gtin; but tJiat it lavl be • joint one, either I'or
■ill, or againBt all; tlmt therefore tlie several
Jud^ent in this case against Salalhie) Curtis
was erroneous; and that Dotwitha landing that
judgment, he ia still liable to a joint judgment,
together with the defendaiiti, Jacob and Isaac
LeiSer, in the event of one being recovered
■gainst them.
The genera] proposition thus stated that in
• Join, action upon a bond against aeveral
. obligors the judgment must be joint against
tfaem all, is admitted to be true; we say the
general propusition, liecause there are excep-
tions us well eslablisliPtl as the principle itself.
Th)i9 says Sergeant Williams (1 Saund. 207, a.
note 2), where the defendants sever in their
pleas, as where one pleads some plea which
goes to Ilia pergonal discharge, such as bank-
ruptcy, ne unques e^recutor, and the like, and
aot to the action of the writ, the plaintiff me;
enter a nolle proseijui against him and pro-
ee«d against the others, in the United States
the principle has been extended further. Thus,
in Kew York, in the case of HartnesB v. Thom-
son, S Johns. 100, an aL'tJon was brought against
three upon a joint and several promissory note,
kDd there waa a joint plea of nan assumpsit,
and the infancy of one of the defendants was
set up at the trial; it was held no ground fur
ft nonsuit, but the plaintiff, upon a verdict
found in his favor against the other two de-
fendants, might enter a nolle prosequi as to the
Infant, and talie judgment upon the verdict
Against the others. So in Massachusetts (1
Pickering. 500), upon a joint contract and a
<uit against two persons, oiio of whom plead-
ed infancy, it was held that a nolle prosequi
might be entered against the infant, and the
■uit prosecuted against the other defendant.
And in this court, in the case of Minors v.
The Mechanics' Bank oF Alexandria, a suit was
brought against Minora and four othera, his
sureties, fur the faithful discharge of his
duties as cashier of the bank; the principal
pleaded separately, and after judgment was
given against the sureties on all their pleas,
the pleas of the principal being, mutatis mu-
Undls, the same as some of tbeir pleas, the
plaintiffs were allowed to enter a nolle prose-
qui against the principal; and no objection to
Uie judgment appearing to have been made by
t1*J *tlie sureties, such proceeding was held to
be not on error for which th« judgment could
b« reversed.
The court, in reasoning upon that case, ad-
mitted that in a joint and several bond the
plaintiff ought to sue either all jointly, or one
•CTerally. They said, however, thdt the ob-
jection was not fatal to the merits, but was
pleadable in abatement onlvj and if not so
filraded, !t was waived by pleaciing to the mer-
ts. They said, therefore, if the suit had been
brouglit against the four sureties only, and
they had omitted to take the exception by
plea in abatement, the judgment in that case
would have been unimpeachable. They then
inquired wtiethcr the legal predtcament of the
ease was rlmn<7Pd by having sued all the parties
and siibsequentiv entering a nolle prosequi
aninst one of them. And if not In general,
then whether there wu mnj dilferene* where
the party in wboM favor the nolle prosequi waa
entered was not a surety, but a principal In
the bond. The court, after an elaborata
examination of these questions, both upon
principle and authority, came to the con-
clusion, "That where the defendants sever in
their pleadings, a nolle prosequi ought t« Im
allowed. That it was a practice which riolatea
no rule of pleading, and will generally sab-
serve the public convenience. That in (he nd-
mintstration of justice, matter of form, not
absolutely subjected to authority, may w«ll
yield to the substantial purposes of justica."
In arriving at this conclusion, the court dted
with appro^tioD the two cases from New
York and Massachusetts before referred to,
and remarked that the plea went not only in
personal discharge, as in the casa of bank-
ruptcy and the other pleas before cited from
Sergeant Williams's note, hut proceeded upon
a matter which established an original defect
In the Joint contract. This case clearly estab-
lishes these two propositions:
Ist. That although in case of a )oint con-
tract, strictly speaking, the plaintiff must aua
all or one, yet if he does sue any intermediate
1__ _jjj jj^g defendants do not avail thi-ni
of this by plea in abatement, the objec-
e waived by pleading to the merits, and
which can avail them upon v
error: and the reason which the court givea,
drawn from high authority, is, "That the ob-
ligation ia still the deed of all the obligors, who
are sued, though not solely their deed; and.
therefore, there is no variance in point of lair
between the deed declared on and that proved.
It is still the joint deed of the parties sued, al-
though others have jOined in it."
■2d. Though the plaintiff should elect |*»S
to bring a joint suit against alt the obligoia. tf
they sever in their pleas and tfae bond tw joint
and seviral, he may enter a nolle prosequi
against one of them, even although hi* ptea
go to the action of the writ; it being the same
with that of the other defendants, and take
judgment against the other defendants. wbi<A
cannot be reversed on error, where no objec-
tion to the judgment against them was made
by those defendants at the time. The case
which we have been examining bears strong
resemblance to the one at bar.
Ia this case, aa in that, the bond is several aa
well as joint; in thia case, aa in that, an action
migbt have been maintained severally apainst
the defendants; in this ease, as in that, all
the parties were retained who had joined in
their pleas, and between whom there existed
a right of mutual contribution. In this, aa in
that, the principal had pleaded separately froio
his sureties; finally, in this, as In that, tba
principal was severed from the record, and
ceased to be a party. The cases diJer only In
this single particular, that in that case be
ceased to be a party by the plaintifTs enter-
ing a nolle proseijui against him; whereaa in
this, he ceased to be a party, as we think, by
the judgment which was separately taken by
the plaintiff against him; which, in our opin-
ion, under the facts of the case, severed nin
from the record to all Intent* and purposes.
The plaintiffs' counsel relied, with great
emphasis, upon the cases of Taylor v. Deck. 3
Ran. 816, aa being, as he contended, concluai**
Pnrm II.
I Hatca, vro.. Of THK CitT or Ntv Yobk *. Uiui.
IM
at the Stata In Itielr public or private relatlona:
vb*Ibet It nlalFd to the rlgbts at persons, or of
pr«nertT, o[ the whole people ot a State or ol an*
rndlTldual wllhla It anil wbone operation nas wlth-
■■ tbe territorial llmlti ot Cka State, and upon
the penoaa aad tblnca wlIhlD its Juried Ictlon. An
■xample ot Ibe application ot thPM principles la
tb* rlicbt of a atate to punish perwsns who com-
■lit offeaca aolast Its erimloal laws within Its
tcrrltorr.
Persons are not the snbjecta ot commerce : and
■ot being Imported fooda. ther do not fall within
tbe reasonlDB founded upon the construction ot a
power ilveii to CooBrtaa to retulate commerce,
and tha prohibition of the States from impaalDg a
dutj on Imported ^oods.
ON » certiScaU of division in opinion of tha
judges of the Circuit Court of the United
Staites for th« Southern District of New York.
In the Superior Court of tha City of New
York, the plaintiiTa instituted *n action ot debt
for the recovery of $1S,000, the amount of cer-
tain penalties, alleged to have been inciured
b7 the defendant, under the provisions of an
Act of the Legislature of tbe State of New
York passed February 11th, 1824, entitled "An
Act concerning passengers in vessels ooming
to the port of New York." The defendant,
bring an alian, removed the eaiue into the
Circuit Court of tbe United States, and the
E leadings in the case were carried on to issue
I that court.
Tbe act of the Legislature of New York pro-
vides, in the first section, that the master of
an; ship or vessel arriving In the port of New
York froni an; oountry out of tbe United
States, or from an? other State of the United
States, shall, within twentj-fonr hours after
his arrival, make a report in writing to the
11M70T of tbe eitj of New York, or, in his
KbMBce, to tha recorder, on oatb or affirmation,
of tbe name, place of birth, and last legal
settlement, age and occupation, of ever; per-
eon brought aa a passenger in tho ship or Tea-
sel, or on board of ber, on her last Toyage, from
anj oonntry out ot the United States, or from
anj of the United Statea into the port of New
York, or into an; of tbe United Statea, and of
all persons landed from the ship, during the
voyage at any place, or put on board, or nif-
fend to go on board any idber Teasel, with in-
tention of proeeediug to tbe city of New York;
Dnder a penalty on the master and com-
mander, the owner, consignee or cmisignees, of
acTenty-Bve dollars for each passenger not
19S'] "reported, and for eTery person whose
same, place of birth, last legal settlement, age,
■ad occupation, shall be ftUsely reported.
Tbe second section authorizes tbe mayor,
etc., to require from every master of such ves-
eel that be be bound with suretiea in such sum
as the mayor, etc., shall think proper, in a
of tbe dty of New York, and tbe overseer*
tbe poor of the city from all expenses of the
■aintenanee of eucn person, or of tbe ehild or
tUldren of such person, bom after such im-
Srtation; in case snch person, child or chil-
n, shall become chargeable to the city with-
ta two years; and if for three days after ar'
riTal, the master of the vessel shall n^lcct
to glTe such secnrity, tbe master of the ves-
mI and the owners ahall aeverally and respee-
• l<.ad.
lively be liable to a penalty of S500. for each
and every person not a ci(i7:Pn of the United
States, for vihom the mayor or recorder shall
determine that bunds should have been given.
The third section enacte that whenever any
person brought in such vessel, not being a
citizen of the United States, shall, by the
mayor, etc., be deemed liable to become charge-
able on the city, the master of tbe vessel shall,
on an order of tbe mayor, etc., remove such
person without delay to the place of his last
settlement, and in default, shall Incur all tbe
expenses attending the removal of such person
and of his maintenance.
The fourth section provides that every per-
son, not being a citizen of the United States,
entering tha city of New York, with an inten-
tion of residing therein, shall, within twenty-
four hours, make a report of himself to the
mayor, statins bis age, occupation, and tbe
name of tbe ship or vessel in which he arrived,
tbe place where be landed, and the name of
the commander of the vessel-
Tbe sixth section Eubjecta the ship or vesael
in which such passengers sliail have arrived to
the penalties imposed by the former sections,
for any neglect of the provisions of the taw by
tbe master or owner, and authorizes proceed-
ings by attachment against the ship or vessel
for tbe same in tbe courts of New York.
Tbe declaration set forth the several provi-
sions of the act and alleged breaches of (he
same, claiming that the amount of tbe penal-
ties stated had become due in consequence of
such breaches.
To this declaration the defendant entered a
demurrer, and the plaintiffs joined in tbe same.
The following point was presented to the
court on tbe part of the 'defendant: ('106
"That the act of tbe Legislature of the Slate of
New York, mentioned in the plaintiff's decla-
ration, assumes to regulate trade and com-
raerce between the port of New York and
foreign ports, and is unconstitutional and void."
Upon this question tbe opinion of the jud^a
being opposed, the same was certiUrd to tbia
court, at tbe request of the plaintiffs.
Tbe case was argued at a former term of tbia
court, and tbe justices of the court being divid-
ed in opinion, a re-argument was directed.
It was again argued by Ur. Blount and Ur.
Ogden for the plaintifTs, and by Mr. White
and Mr. Jones for the defendant.
Mr. Blouat, for the plaintilT. contended that
the law in queation was conatitutinna!. The
case, he said, was not without difliculty; in-
deed, the very liesilatioo of a court constituted
The law was one peculiar to this country,
and it grew out of circumBtancea alao peculiar
to this country. The emigration to tbe United
Statea since the American Revolution was un-
precedented in history, not merely in numbers,
but in its character. It was not a military col-
onisation, like the Greek and Roman colonies;
nor was it mercantile, like tbe ICaat India and
\merlcan colnnics of modem Europe. Neither
did it resemble the emigration of the Moors
from Spain, or tbe Hugenots from Prance. It
was a constant and steady migration of civ-
iliied EuTopeaoa to an independent countn.
1M
SuPBuia CouBT OP Tfii Unrm SiAm.
inr
mntrolled hj & civllieed people. This tnigni-
tton wftB peculiar to the United States, and wa
c&nnot And legal analogies in oilier eoiintriea.
That migration hue now readied the amount of
sixty thotlEanil Ave hundred yearlj, into
port of New York alone.
It was obvious that laws were needed to
regulate such a migration, ani the Atlantic
States generallj have paaaed «uch lows; and
the law in question is that of New York, prO'
Tiding that masters of vessels bringing passen-
gers to that port, who have no legal settlement
in the State, shall give bonds to the cit; to In-
demnifj It for three years from all charges on
account of their maintenance. It also provides
for a report to the mayor of the names, etc, of
the passengers, and inflicts a penalty tor a.
violation of the law.
At the previous argument, the defendant con-
107*] tended that this was *> regulation of
commerce, and that the power to regulate com-
merce was exclusive! 7 vested in Congress.
Hence this law, passed by a State, was uncon-
stitutional.
We do not admit this law to be a regulation
of commerce; but conceding, for the sake of
the argument, it to be so, it does not follow
that it is unconstitutional.
Because Congress has the power to regulate
commerce, it is not a conseijuence that it ii
exclusive power.
Towers granted to Congress are exclusivo
only.
1st. When granted in t«rms expressly exclu-
2d. When the States are prohibited from
•xercising It-
3d. When exclusive in its nature.
This power clearly does not fall under the
first nor second class.
Does it under the third class T
The counsel contended that a legislative
power is exclusive in its nature only when its
existence in another body would be repugnant
to, and incompatible with its exercise by Con-
Not that its exercise by a State Legislature
would be incompatible with its exercise by Con-
gress, That is a conflict between concurrent or
co-ordinate powers; and where that takes place,
we concede the federal power is supreme.
A power exclusive in its nature must be luch
that the State!! ran pass no law upon the sub-
ject withont violating the Constitution. Fed-
eralist, No. 32; 6 Wheat. 49; 1 Story on Const
Uw, 432,
Concurrent powers arc of two classes,
1st, Where any federal legislation covers
the whole ground and exhausts the subject, as
fixing the standard of weights and measures.
Here, after Congress has legislated, the power
of the States is at an end.
2d. Where the power may be exercised in
different modes, or on different subjects, or
where the object admits oF various independ-
ent regulationa operating together.
Tn these cases the concurrent Ibwb ar« ftll in
force, and the State law is void only so far aa
It conQicts with the law of Congress.
The 2d section of eth article of the Conati-
tutioa, providing that the laws of Congreaa
made parauant to the Constitution shall be the
auprema law of the land, proTM that this spe-
ciei of eonnmnt legislation K . ^
This court has sanctioned this view of the si
ject. 4 Wheat, 122, IB6; fi lb. 43; 9 lb. 200.
In the case of Ogden r. Saunders, it was de-
cided that a bankrupt *1aw passed by a 1*141
State was valid until it conflicted with federal
legislation.
The counsel, Mr. Blonnt, contended that tha
case of Gibbons v. Ogdeu did not touch the
case before the court.
1st, Because there the power to regiil«t«
oommerce was regarded u exclusive only m»
far as it regulated the commerce of the United
States as a whole.
2d. Because there the question decided by
the court was whether a State could regulat*
commerce, while Congress was regulating It.
g Wheat. 200.
3d. Because it was expressly said in that case
by the court that it never was Intended to dSEay
to (he States all legislation whidi might affaet
commerce. lb. 204.
That decision, therefore, does not touch tbo
point, and the court ia now called upon to gft
further and declare all State laws affecting
commerce rold.
This is the extent of defendant's doctrine.
There is here no conflict of concurrent lawa.
Congress has passed no law conflicting irith
this law.
The acts of 1779, March 2d, and of 1810,
March 2d, dted by the defendsnt'a counsel in
the former argument, are for different purpoee*.
The first ia a revenue law, and the proviBiona
relating to passengers are eonflned entirely
to the entering and landing of baggage, autd
they ore intended to prevent amuggling.
The second is intended to prevent the cupid-
ity of masters and owners from crowding tbelv
ships with passengers, and to compel them to
provide a suSTcient quantity of water and pro-
Tbe treattea with Brasil and Austria mad
to the subjects of these countries, they con-
forming to the laws of this country. This Ikw
was then in existence, and the exception pro-
vides for the execution of all such laws.
Besides, the defendant here does not appear
I be a subject of either of those powers, And
course cannot claim anything on account of
those treaties, even if they were applicable to
the case.
We do not deny that in regulating commcreo
the power of Congress Is supreme, and it may
be regulated either under that power, or undw
the treaty-making power. Until that be dons,
and the conflict occur, the State law is vulid.
Such are the doctrines of this 'court [*10>
and of the ablest jurists. 1 Story Const Iaw.
"Congress may make that a reguUtloa
. . . jmmerce which a State may employ a^ •
guard of ita Internal policy, cr to promoto it«
~ n peculiar interests."
'If tlie power to regulate commerce be ox-
clusive, still the legislation of a State acting
subjects within the reach of other powers
besides that of regulating oommerce, would bo
oonstitutional." 2 Story Const. Law, 617.
In order to decide the cause for the defend-
ant, the court must come to the conclusion that
the power rtfulating eommarca Is ao eulnalvo
Petcn 11.
fat Haxc*, ao, o» the Cut or Vtw Tokk «. Itiuk
1«
Biet e
Thin ia beyond anjr foTiner deriSLoa, and wi
think the court will not adopt sucb » conclu-
1st. Because it is a ease where power la
claimed bj impliratiun, and it it not sufficient
to show a puBKibilitj of ~
such cnara, too, are decided upon their own
grounds.
2d. It ia a question of power, and the court
will require most convincing arguments befoi
denying it to the Slates.
3d. Such a cc ■ ■ -
recondle former decisjong.
4lh. The regulation of paHsengerg
duetive of do conflicting legislation under tha
old confederation. It was not the evil to be
remedied, wlicn the power to rejpilati
merce was given to Uttngresg. Supremaej of
federal law i^ a aufficient remedy, and Ihe court
win not imply power further than necessary.
6th. This construction would throw upon
Congress a mass of legislation which it could
not perform, and the tendency to alienation
from tbe t^eral govcrninent would '
creaaed bj it« incoropetcpcy to p«rfi
Among these lawa are the Taws regulating
the dischar;<c of ballast, the harbor regulations,
the pilot luwB of the States, the health laws,
the laws of police aa to the conduct of crews of
Teasels while in port, and a class of laws pecul-
iar to the SDuthem States, prohibiting traSio
with (laTCS, end prohibiting maatErs or vessels
from bringing people of color in their vessels.
Such ia the mass of legislation which must be
abrogated by such a deiiNion.
Rut, when we look at the course of commerce
with foreign countries, at the commencement,
the progress, and the conclusion of a voya^,
it is diiricult to estimate the extent to which
110*] such a conclusion 'must lead the court.
The merchandise that ia sent abroad is pur-
chased in the interior, and bills of exchange on
the northern cities and on Europe given for It.
Tbe merchandise that Is brought home on the
return voyage is often kept in the original
package, and is transported from State to
BtAte, with beneSt of drawback, until it i*
merce with foreig;D State*; and if exclusive,
how much must be withdrawn from State legia-
and by declaring that all transacted within the
country falls within State jurisdiction, and the
reaidue within federal jurisdiction. The ship-
ping of sailon ia within the country, and that
li regulated by Congress, and so Is their dis-
charge and enforcement of the contract. On
tbe other hand, pilotage, a contract commenced
npoB the ocean, is regulated by State laws.
Agftin, if the power to regulate commerce
with foreign States be exclusive, that of regu-
lating commerce between the States Is exclu-
sive also. Both powers are conferred in the
same terms, and In the aftme olaUM.
Apply the construction contended for by the
defendant, and tha legislatlva power of the
• Ifc •«.
States la at an end. They become mere mniila-
ipal corporations, and all legislation relative to
commerce, the great business of the country,
becomes exclusively vested in Congress. Un-
der this head of the argument, therefore, we
conclude that, conceding the passenger law to
be a commercial regulation, the States have a
power concurrent with Congress to legislate,
but subject to the controlling power of Con-
gress.
2d. The law Is not a commercial regulation
■■■ the sense contemplated in the Constitutio.
but a police regulation. It ia a part of the sys-
tem of poor laws, and intended to prevent the
introduction of foreign paupers. Thia power
of determining how and when strangers a
be admitted. Is inherent in alt conimunitieB.
2 Ruth. Inst. 476.
Fathers of families, officers of colleges, and
the authorities of walled cities, all h.ive this
power aa an Incident of police. In States it ia
a high sovereign power. It belonged to the
States before the adoption of the federal Con-
stitution. It is nowhere relinquished; nor can
it be with safety. It is essentia! to tbe very
existence of some, and to the prosperity and
tranquillity of all. That it was not intended to
relinquish it, we Infer:
*lst. Because it was not prohibited {'111
to the Stateg.
2d. Because it Is not expressly granted to
Congress, but only as an inridrnt to older pow-
ers— as the war power, the treaty. making pow-
er, or the power to regulate commerce. It may
also be used by tbe Stateg as a police regula-
tion, as part of the system of poor laws, ur to
promote internal tranquillity. But because It Is
an incident to some of the federal powers, it
can never be pretended that it is necessarily
prohibited to the Slates.
3d. Because the sec. 9, art. 1, of Constitution
concedes, in so many words, that the States
have this power, and Imposes a restriction up-
on the concurrent power of Congress until 1808.
It declares that "the migration or importa-
tion of such persons as any of the State.^. now
ejttstinc, shall think proper to odmit, shall not
be prohibited by Congress prior to 1808."
What is the meaning of the words, "the Slales
shall think proper to admit T" States can only
think through their laws. I.,<-gi9lRlion is the
thought of States. The very jihrase shows
that the States reserved the power to admit, or
contended for. After that year, Congress i
enabled to exercise one of the incidents to its
powers, which before it was prohibited to do.
It must exercise It, however, as a concurrent
power, and supreme when conflicting. Sup-
posing Congress had not chosen to pass any
laws on this subject after 180B, would the State
laws necessarily be abrogated by the arrival of
that yearl Would the laws passed by tha
States aboltahtng the slave trade before 1803
have been repealed T Such must be the con-
clusion, U the power be exclusive in its own
'Again, if the power to pass laws regulating
in
SuntXHi CouVt or THE Utmo) Btatbi.
l«st
the ftdniluion of pasaengers Uora Europe fall
under the puwcr of regulating foreign com-
■nerce, that of regulating the arrival of puasen-
Kers li; land fatli under the power of regulat-
ing commerce between the States. If the on*
be cxcluaive, the other U eiclusivei and all va-
grant laws, all pi>or laws, and police regula-
tions, become at once solely of federal jurisdic-
tion. The lawB of the Southern States in rela-
tion to the intercourse and traffic with slaves,
snd to the introduction of colored prions into
those States, also become the subjects of fed-
eral jurisdiction, and the State laws are abro-
112*] gated. Here tbc counsel examined *tha
character of those laws and concluded bj ob-
aerving that although be must not be under-
stood as approving of the peculiar provisions of
those lana, still it was obvious that some legis-
lation waa necessary in reference to tbat popu-
lation, and that the States ciMny liad iul' pow-
er to pass such lawa.
The poor tawa, providing for tending back
paupers to their place of settlemcDt in the ad-
joining counties of a bordering State, will share
the same fate, and Congress wilt have to pro-
vide a Udtionul sjstem of pool luwd.
In nur view, the law in question is altogether
a police regulation; as much ^o as lawa prohib-
iting entrance into a walled city after dark;
laws prohibiting musters from bringing con-
victs mto the btute, or tbe laws prohibiting
free negroes from being introduced among
The history of this law also throws some
light upon its conslituliunality. The federal
Constitution was adopted by nine States — the
constitutional number in 178&--and on the 13th
of September, of that jear, a resolution was
adopted by the old Continental Congress, an-
nouncing that fact, directing presidential elect-
ors to be chosen, and fixing the 4th of March,
178B, for the commencement of the new gov-
ernment. Three days afterwards (on the IStb
of September) the same body unanimously
adopted a resolution recommending to the sev-
eral Stutea to pass proper laws for preventing
the transportation of convicted malefactors
from fovcitpi countries into tbc United Sla'.ea.
\Vb,?n this resolution, so directly bearing upon
the point in question, was adopted, there wei*
present, Dana, the profound and enlightened
iurist and fraraer of the government of the
forthweat Territory; Oilman, Williamson, Fox,
and Baldwin, members of tbe convention which
formed the federal Constitution; Hamilton and
Madison, also members of that convention, and
the eloquent expounders of that instrument.
Jay, the third expounder, and the first Chief
Justice of this court, was the secretary of for-
eign affairs, and, no doubt, recommended the
passage of thia law. If any contemporaneous
authority is entitled to respect, here waa one of
the highest character. A resolution, at the
verj moment the new government was goinj;
Into operation, recommending to the States to
pass these laws, as peculiarly within their
province.
Under that resolution the States acted. No-
vember 13th. 17SS, Virginia passed a law foi^
bidding masters of vessels from landing con-
victs, under a penalty of fifty pounds. South
US') Carolina and Georgia 'passed pasaen-
oer lawa the same year. New Eampihire
•SI
paased a passenger law In 1791; MaMschusetta,
in 17B4. The New York passenger law was
first passed 7th March, 17S8, and has been re-
enacted, with some modifications, at c*^h sub-
sequent revision of her laws.
The resolution of Congress extends to the
very point in dispute. If the admission sf con-
victs may be prohibited, the mode of bringing
passen^rs may be regulated. The same rule
IS applicable to the admission of paupers, as to
convicta. Thia will not be denied.
The defendant's counsel asserted, in a former
argument, that the lawa of 179S and 181!) have
regulated this intercourse.
We deny it. Those laws were for other ob-
jects. It is not true that a pemnn conforming
to those laws may import passengers in iipite of
State laws; because the laws of 1709 and ISIft
were all the regulations that Congress thought
A StaLu iaw U not neceesarity void becanM
persons violating it are acting in conformity
with an act of Confess. Even in such caaea.
States acting under other powers may control
individuals acting in conformity with laws of
the federal government.
A man may obtain a patent for making .ind
Tending a medicine, and a State may prohiliit
its sale. He may obtain a cupyiiglil (or pub-
lishing a book, and the Stati- muy punish him
because it ia liheloua. A merchant may import
gunpowder or Chinese crackers, riirsunnt to the
revenue lawa, and the State of New Vurk may
prohibit the former from being landed and tlie
other from being sold in the city. He may also
bring passengers, pursuant to the ahive-incn-
tioncd laws, and the Legislature may compel
him to give security that they will not become
a public charge.
We therefore contend that the power to reg-
ulate commerce is not exclusively in Congiesa,
but concurrent in tbe States; and that State
laws are valid unless conllicting, and only voi;^
where repugnant.
2d. Tliat the law In queatlon is merely a po
lice regulation, and not a regulation of eoni-
mcrcc, in the 5ense of the Ctmitilution.
3d, That Ihe i'o«cr over :'ii; '\-c<-rr: of tn-
tcrrouiEp is vpslod in Congrc'-' only; Is Inci-
dent to other powers, and not in any sense
exclusive.
4th. That the law of New Vork is not re-
pugnant to any existing treaties or laws of
Congress, and is therefore valid.
'Such a conclusion produces no in- [*114
convenience, but, on the contrary, promotes a
public good. It vesta power where there is an
inducement to exercise it. In Congress there is
no such inducement. The we^it seeks to en-
courage emigration, and it is but of little im-
portance to thnm how many of th( crowd ar«
left as a burden upon the city of New York.
There Is, therefore, a hostile principle in Con-
gress to reguhtting this local evil. A construc-
tion that would vent this power exriusivelj
there would be contrary to the general desigD
of our government, which is to intrust the c«re
of local Interests to local anlhorities, and only
to Congress when necessary to the natioiwl
welfare.
We trust that this court will not make a de-
cision that, by absorbing so liirge a portion of
Stait* legialation in a power to r~~ ' '
reffulate eom-
Peter* if.
IM
Tbi Matu, ro, or t
■ CRT OF Nkw Yoke v. Uuji.
lU
ssbKb, dnoMd czoliMira by Infennw, will tend
to weaken the kuthorit; of thin court and Khake
the ■tabilitj' of the gorernment; but that, ac-
eordfng t* the design of the Constitution, in
eonformit; with its history, and in accnrdnnea
with its own dediiona and principles of inter-
Ktatfon, that it will decide that the Statea
i power to pat* aucb lawt until 180B without
control; and after 1B08 they had a concurrent
power, subject to the control of CoDgresa; and
that, until conflicting with federal lawa, tha
law ia valid and in force.
Quarantine Laws. — Maine, Act 10th March,
1821; New Hampshire, 3d February, 17B9;
Unsiiacliusetts, Rev. Stat. 1S», 20th June,
1799; Rhode Island, June 22d, 1797, and Rev.
Stat. 1822; Connecticut, Rev. Stat. 1636; New
York, Uth April, 1920; New Jersey, 3d Feb-
ruary, IS12; Pennsylvania, 29th January, 1818,
and aa April, 1821; Delaware, 24th January,
1TS7, and 1800; Maryland, November, 1793;
Virginia, 2Gth December, 1792; North Caro-
lina, Act 1794, 1802, and ISIT; South Carolina,
IDlh December, 17S5, 21st July, IfiOO, and De-
cember, I8D9; Georgia, 23d December, 1833;
Louiaiana, 19th February, 1825; Alabama, 21st
December, 1823.
P&asenger Laws.— Malne,24th February, 1821,
and 2Sth February, 1835; New Hampshire, IStb
June, 1807, ISth February, ITOl, 14Ch June,
1820; Maasachuwtta, February, 1704, and Rev.
Stat. 1834; Rhode Istaod, Revised Uwe, 1822;
Connecticut, October, 17SS. and Rev. laws,
1B35; New York, 11th February, 1824; New
Jersey, 28tb January, 1707, lOth February,
1819; Pennsylvania. 20th January, 1818, Ist
February, 1818; Delaware, 24tli January, 1797,
lEth February, 182B; Maryland,- November,
1609, 22d March, IS33, and 17th February, lS3tt;
IlS'l Virginia, 13th November, 17S8, •26th
December, 1792, and llth March, 1833; North
Ckrolina, 1792, and 1832, 1826, and 1830; South
Carolina, 1768, and 19th December, 1836, Loui-
siana, 16th March, 1818, and ZSth March, 1635.
Pilot Laws.— Maine, 24th February, and 10th
March, 1821; New Hampshire, 16th June, 1806;
MoassLcbusetts, Rev. Stat. 1834; Penntylvanift,
8d April, 1801, 20th March, 1811, and 29th
March, 1803; Delaware, February 6th, 1819,
and Slst January, 1826; Maryland, November,
1803, 1818, and 24tb February, 1824; Virgiai*,
10th February, 1819, 2etli February, 1S21, 27th
January, 1826; North Carolina, 1790, 1TS7, 1806,
1812, 1823, and 1831; South Carolina, 17th
August, IB07, July 3lRt, 1615; Georgia, 23d
December, 1836, 23d December 1830; iJahama,
23d December, 1823, and 13th January, 1828;
Louisiana, Slst March 1606; 7th June, 1806
•nd 1st March, 182S.
Wreck Laws— Maine, 2Tth February, 1821;
Massachusetts, Rev. Stat. 1824; Connecticut,
Rev. Laws, 1635, Tit. 117; New York, 1 Rev.
Stat. 600; New Jersey, Rev. Laws, 716, and
9th March, 1836; Delaware, 2d February, 1786;
MaryJbiid, November, 1799, and 3d January,
1807; VirglBia, 7tb February, 1819; North Car-
olina, Uayward's Digest, 668 and 1S31| South
(Xrolina, 1783.
Laws relating to Colored Passeneen and Sea-
men.—Delaware. lOth January, 1826, and 7lh
February, 1827; Maryland, November, 1796,
and November, 1800; Virginia, 1 Rev. Laws,
128, 432, 443, 444, Act 24th Frimwry, 1827,
and nth Mareh, 1834; North Carolina, A«l
1791, 1788, November, 1810, 1825. 1826. 1830,
and 1832; South Carolina, IStb Decembar,
1817, 19th December, 1835, Georgia, Eeth De-
oember, 1817, 23d December, 1H33, and 2eth
March, 1836; Louisiana, e8th March, 1835.
Destroying Vessels.— Maine, 27th February,
1821; Massaehusetta, Rev. SUt. 1834, p. 726;
Connecticut, Rev. I^ws, 1836; New York, 8
Rev. Stat 867; Maryland, November, 1800)
Delaware, 1782.
Harbor Regulation*.- Maine, 2d Mareh, 1821,
12th February, 18£S, and lUh March, 1736;
Connecticut, Re*. Laws, 1835, Tit. 73; New
Ilampahire, leth February, 1793; Maryland,
November, 1807, 25th January, 1806, and 13th
March, 1834; Pennsylvania, 29tb March, 1803;
Virginia, 3d March, 1821, 17th January, 1829,
and 7th April, 1631; North Carolina, Rev.
Iaws, eh. 104; Louisiana, 17th February, 1831;
Alabama, 20th December, 1826, 21st January,
1832.
*Mr. White, for the defendant, staUd [■It*
tbe case to be of great general importance, not
only OS it aSects the commerce of the city ot
New York, but as it affeeU tbe laws of the
United states, and the treatiea entered into
with foreign commercial nations. If the evila
which the taw of New York is fntenued to
remedy or prevent, fxist, or may occur. Con-
gress may pass a law to provide a remedy, aa
this legislation by the State of New Yorli is
not autliorised by the Constitution and I* void.
It is in direct opposition to tbe power which is
5'ven by the Constitution to Congress to rega-
te commerce, and it is in actual ooUision with
ttat power as it baa been exercised by Con-
gress.
The law is not a law which prevents the ad-
mission of felons and paasengera into New
York, but which affects the navigation of all
countries, as connected by their commerce with
this country, and conHieta with the espreaa
stipulations of treaties for the regulation of
that commerce. It introduces new arrange-
ments, requires other forms, establishes addi-
tional penalties, and prohibits many thing*
which are not so regulated by tbcae treatiea.
This court will look at the consequence* to fol-
low from such a law, and by so doing tbey will
*ee how extensive must be its effects. The
powers of the States to establish harbor laws,
and to preserve the navigation of rivers by pre-
venting obstructions in them, are not deniedt
but these powers are of an entirely diSerent
character from the provialona of the law nndor
consideration.
The law regulate* the whole passenger eom-
merce of the port of New York; it bnpoae*
duties, require* atipulations, and creates liabili-
ties which do not exist in the acts of Congrwa
relative to passengera, and enjoins duties on
aliens which are not required oy these law*.
Congress having made all the proviaions rela-
tive to passengers — whidi having the power to
regulate commerce, has been thought neoessary
by it — the requirements of the law of New
York are in direct oontliot with and repugnant
to these proviaioni, and abonld therefore bs
declared void.
A reference to the taw of New York will
■bow tbe number and extent of the duties im-
po*ed on mooter* of shlpo and their owner* by
11«
Bdfbeiu Codbt of Tm Ubitbi Stavi
thla Iftw, beyond the demandi of ths law of tba
United States. Tha maatar muRt make a. re-
port of the paaseDgen who were on bo^rd his
reaael daring ».ay part of the voyage; be must
give A bond with luretj, to prevent their being
117*] chargeable to the city of New York; 'he
mnat remove any of the ptUBengeis who may
become chargeable; and penaltiea are imposed,
and the forfeiture of the vessel ia to be made
by proceedings of an admiralty character In-
fore a court of New York, if any nedeet or
Tiolation of thcae duties ahall occur. Do not
thete interfere and conflict with the powers
given to Congreaa to regulate oomtnerceT Are
tbey not in conflict with the passenger law* of
the United SUtesl
Two cases hare been decided in thia court
which settle and determine all tlie questions
which can arise in the case now presented. Be-
fore the case of Gibbons v. Ogden, it had not
been fully ascertained what was the constitu-
tional interpretation of that part of the instru-
ment which gives to Congress the power "to
regulate oommerce;" but this court in that
eaae gave to it a full and a most eatisfoctory
interpretation. The regulation of commerce by
Congress is, since that cose was decided, well
understood; and the only question which can
be properly presented to the court now is
whether the principles ,of that case apply to
this. The case will be found in 9 Wheaton,
and the principles referred to are in pages 189,
197, of the report.
Commerce U not merely buying and selling
and the exchanges of commodities. It Is navi-
gation, and the intercourse between nations
As it includes navigation, so it includes all the
uses and purposes of it, as well the tranaporta
tion of paasengers and persons as of goods, and
everything connected with them, and vrith each
of them. Such, also, is the definition of com-
merce in the case of Wilson v. The State of
UaryUnd, 13 Wheat. 446, 447.
The examination of the statute of New York,
which haa already been submitted, fully estab-
lishes the position that the whole of its provi-
sions are commercial regulations. Ita applica-
tion is to aU passengers, and it operates on the
business of navigation and the uses of shipping
as they are employed in one of the moat proQt-
able and Important of its purposes.
Sanitary regulations, quarantine laws which
affect passengers, are in England made by acta
of Parliament, and are not police regulationa;
and even if such are in part the purposes of
the act of the Legislature of New York, they
hove gone far bejond those objects, and liave
embiaced reauirements which could not be
constitutionally touched.
One of the great and prominent induoemeuta
to form the constitution was the necessity,
nniveraally felt and acknowledged, to eatabliah
118*1 'uniform commercial regulations. The
Importance of this was seen by all; and hence
the surrender of the power to regulate com-
nieroe by the States to the general government.
1'he first movement of the purpose to establish
the present government was by Mr. Madison,
under the influence of the importance of a uni-
forio commercial system; and from this arose
the appointment of the oonveotion which
adopted the present Constitution. The main
object of this goverameDt will be at an end if
4t4
ttM HUtas ean «ureise the trawar wUeh H
olaimed by New York under this law. As tk
government of the United States in itsnlatioM
with foreign powers might be affected by Stats
legislation on matters connected with eonunersib
It became essential that everything which af
fected commercial intercourse should be exda-
sively given to the government of the United
States. By this means the relations of the gov-
ernment with foreign nations could be pn-
•erved, and the stipulations for equal privileges
of the citizens of foreign nations eonnecled
with the United States by commercial treaties
cannot be disturbed; without this all would
have been confusion.
Mr. Jones, for the defendant, considered this
ease as relieved from all diiliculties as to tha
application of the provisions of the Constitu-
tion of the United States to it. With the de-
cisions of this court In the ease of Gibbons v.
Ogden before them, it would be seen that the
law of New York is a regulation of commerce,
and is neceaaarily invalid. The provision! el
the taw interfere with the very important part
of the commercial operatic: '
f "t?^' i
aels of other states besides those of New Y<u'k;
it goes across the ocean, and interferes then
with the operations of packet ships, preeerihisg
the description of persons who nuiy lie brought
on board of them, and subjecting the maaten
and owners of the vessels to duties and liabili-
ties which do not exist under the laws of tbi
United Statea, and cannot therefore be in
posed by a State law,
Tliere may be police regulations whieli srr
not commercial; other regulations may be both
those of police and of commerce. While th(
police of the cities and States o( the Union ii
entirely within the power of the States, it dots
not follow as a consequence that where eont-
merce is interfered with b; the rules of police
they are constitutional. Many regulations ma;
be applied in the commercial citirs to busincH
matters connected with commerce which an
not 'commercial, and the argument in [*!!■
favor of such regulations as those of the law of
New York, derived from this state of thiagi,
is erroneous, as it confounded the thing witli
the use of it. The building of ships, the pres-
ervation of harbors, of wharves, the kecpinj;
open of rivers, may all be subjected to Slate
laws. These are but the instruments of com-
merce, and not commerce itself. But if a Stale
by its lawa shall impose regulations connedid
with the uses of these things which inlerfer*
with the operations of coninierce, the constitu-
tional power of Congress is usurped, and tbr
interference Is void.
will result- The
will not protect them, il
the constitutional power
11 all be in pari delicto.
No precedent will sane-
Unconatitutional lawa. The argument
that a similar law of every State conllicls wili
the Constitution, only shows the extent of th*
mischief, and the greater necessity for its o
It baa b*M aaidby the «
void, as the e
number of these laws
they are obnoxious to
of Congress. They w
if they so interfere.
■ity for iU ewe-
sel of the plain-
I II.
1837
TuE Uaiob, etc., or the Citt or Knr You v. Hilm.
1»
tiff that tb« Constitution of thf United States,
>nd the bij^hcKt authority acting under It, hma
conoeded the powpr c2«reiud by New York to
tha Stmtes; and the ninth section of the Con-
stitution is referred to, which prohibits Con-
gress from interfering with the inteivoune be-
tween the States for a period. It is known
that this provision had a special ■pplicatiou to
particular persons. But taking its provision in
Its gfneral sense, ft would appear that with-
out it, the power existed; and the provision
was only to suspend the action of Congress on
the subject, the right ol which wa« vested in
that body.
It was under the powers to regulate com-
uiere that the uttive trade was regulated, but
the claim to interfere with that trade was not
derived from the prntlnion which related to
migration and importation between States.
But it is &aid that If this provision gives
Congress the power of interference, it also
gives it or admits its existence In the States.
Thia is not conaiderrd a correct deduction. If
a State Taw prohihlliiig migration or importa-
tioD ihali be brought in question, the point will
arise as to the power of the State to legislate
apon it. The provision of the Constitution is
that for a certain time Congress shall not pro-
hibit the admission of those persons the States
may admit. The exception does not destroy
the power, bnt suspends it. It is fully grant-
t20*] ed, 'and could have been executed in-
stantly but for the limitation, nnd when that
expired it came into active existence. It was
from that time as full as if it hnd never been
iBlcrfered with.
The argument which is presented on the res-
olution of Congress after the adoption of the
Con'ttitution. and before it went into operation,
which recommended the States to pass law*
prohibiting; the admission of felons, asserti
that the States may prevent the admiasion of
all persons, unless under onerous conditions.
But no such inference is justifiable. The law
of New York is a prohibition of emigration,
and if carried into full effect will entirely pre-
vent the entrance of all persona from abroad
into the city of New York, the great throat of
emigration. It applies to all passengers com-
ing to New York, and operates on every ship or
vessel takinr passengers for New York, In any
foreign country.
It Is attempted to draw a distinction between
this ease, and the cases which exist by the
n«at power* to regulate commerce under the
Constitution. This is said to be but an inci-
dent to those powers, and not important, or
necessarily interfering with them; and, there-
fore, within State legislation. But if this is an
incident only, and may be taken away from
the general government, the whole power to
regulate emigration may be taken away; the
whole passenrfer trade of the United States
may be cut olT, and thus one of the principal
powers of the genetaJ government will be de-
stroyed.
We have shown enactments b^ the national
Legislature under the Constitution relative to
passengers, and tbua Congress have come in
:upicd the ground. The right no longer
rests upon the aWract question whethi
pukT be exercised. It has been used, and it is
T be exercised. It has b
) from its verv nature. If it i
been made, it may be aaid, with perfect aafety,
that they have not been thought necessary or
proper. Their not having been made is eri-
denoe that Congress did not deem them requis-
ite. They are judges of the mode in which tiM
power shall be used. The subject having been
onoe within their view, It must be eonaidcred
that they have done with It all they considered it
required, as in the case of a bankrupt Uiw.
By establishing a uniform system of bank-
ruptcy the whole power to legislate on the sub-
ject was occupied, and a State oould not oome
in and legislate on matters which were not re-
ferred to or provided for in the legislation of
Congress, on the ground that having been
omitted they could be so regulated. The wis-
dom of the Legislature of the general govern-
ment 'is to be regarded aa having ['131
looked over the whole of tbe subject, and to
have done all that ought to be done.
There is a direct conflict between the laws of
the United Statoa and the law of New York;
for everything is in conflict with these laws on
the subject of passengers, which adds to the
regulations establiEhed by them. So, alao, ths
law of New York conflicts with treaties, for
they impose upon citizens end subjects of coun-
tries united to us by treaties, restrictions not
known to the genenl laws, and not contem-
plated aa applicable to tb«n. In fa<^, if such
a law as thia before the court may be passed
by a State, a total prohibition of the entrance
of a foreigner into the United States may be
enacted by the legislature of the State; and
then a treaty, containing assurances of ingress
and protection to the citizens or subjects of a
foreign state, would cease to be the suprenw
law of the land.
It is denied that Congress, under the confed-
eration, hod the power to give to the States
authority to pasa laws relative to the admis-
sion of persons into their territorial limits.
This would allow to that body authority to
legislate over the Constitution then coming
into existence, and to supersede its provisions.
The resolution waa passed in the expiring hour
of that body; and although many of those who
formed the Constitution were members of the
confederate Congress, that fact does not au-
thorise the deduction, that, by adopting tlis
resolution, they meant to give a construction
to the constitutional provision with which it
interfered. It was intended to operate on ■
present evil, and not to be a permanent law.
Mr. Ogden, for the plaintiff.
The defendant, in thia case, states himself to
be an alien, but does not state in his applica-
tion to remove the cause from the Superior
Court of the City of New York into the Qreuit
Court, friim what country he came into the
United States; but it is a fact worthy of notice
that, although a stranger among us, he has un-
dertaken to teach us constitutional law. He
assumes to set aside a law of New York, and
to break down a policy which has existed for
nearly thirty years, without, until now, a claim
to object to its provisions or its purposes. The
first act which contained provisions relative to
passengers was called "An Act for the relief
and settlement of the poor.' The aet befora
tha court is the same with that law in pur-
pose, and In many of Its provisions.
'The question is, whether the Legis- [*lll
122
Supuui Covn OF TBM Vsrrwa Statss.
isn
long period >tat«d, bkre violated the Conatita-
tion of the United Statei; and the act under
Ronsideration, tliercfore, is a nullity, bavjng
been parsed in coatrnveraion of the ConaCitu-
tiou. The aimple Btalement of the question i*
Bufficient to show itB importance.
Jt ia the high prerogative of thla oonrt to
examine the laws of the ditfereot Statei Md of
Congreu, and the G>aatitution of the United
States. To do thia ii the duty Impoeed upon
the court by the Constitution. eonSded to it
power to pronounce a law of a State Legisla-
ture null and void, aa being against the pro-
visiona of the Constitution of the United
States, is not only a great and important one;
but, because it ia so, it ahoutd be exerciaed witli
Eeat care and caution. To suffer State legia-
turea to disregard tbe Constitution of the
Union, which all their membera are aworn to
■upport, would soon leave the Constitution a
dead letter, destroy its efficiency, and put an
end to every hope of benefit to be derived from
it. On the other hand, to take from the legis-
latures of the different States the powers legit-
imately vested in them by a forced construc-
tion of the Constitution, would be equally fatal
to it, by exciting State pride and State feelings
against it; and thus driving it from that place
in tbe good opinions, feelings, and affections of
the people, without which it cannot long exist.
It ia rG«peetfully submitted that tbe power
to declare a State law void which unquestion-
ably exista in this court, should never be eier-
eiaed in a doubtful cmae. It ia au extremely
ddieata power, and should only be called into
■etion in eases so free from doubt as to secure
at once the Bc<^uieacenoe of Stat« authorities
and of the public.
This caae has been already before the court,
and was argued at a former term. It is now
under consideration a second time, the court
having been divided in opinion after the first
argument. This is evidence that the question
Involved in it ia a doubtful one, and aerves to
afford at least a plausible ground of argument
Mr. Ogden stated that he did not belong to
that aebool of politicians or lawjen who are in
favor of giving the Conatitution of the United
States a construction restricted to its words.
All his reflections and all hia habits of think-
ing had induced him to give a more liberal
Interpretation and application to that instru-
ISS*] ment. The 'preservation of the Con-
atitution in its true apirit ia euentlal to the
prosperity and treedoia of this country. Qive
to it all its fair, proper, and essential powers,
and tbe hope may be safely entertained that it
will daily acquire more strength, and that it
will extend, and continue to increase ita benign
influence over our people aa they increase in
numbers, and as our country advances in
wealth, in arts, and in all that is calculated to
enlarge the minds and augment the happineai
of our oitisens. On this occaaion it is not,
tkerafore, propoaed to advocate a reatricted,
limited, and narrow eonstmetion of the Con-
nitution. But while this is properly and nec-
«M»rilj to ba avoU«d. it ia wt to b« atretdwd
beyond Ita proper limits, or, like areiTtk^
else, it will break and be destroyed.
It must always be borne in mind, when dis-
cussing and considering a question arising iu-
der tbe Constitution, that it was not formed by
a people who were without any govemment,
but by the people of several independent States,
all of whom had In their respeotive territoriea
well organized governments m full operation.
These States, independent in themselves, lud
entered into certain articles of confederation,
under which they had fornied a union for the
purposes of contending for and maintaining
their independence. When tliat was obtained,
the articles by which they were bound together
were found to be totally inadequate for their
continued governmeot aa a nation. This wns
the reason why the present Constitution was
adopted by the people, as is briefly, but strong-
ly and clearly, declared in the preamble to tlii
instrument.
It may be proper to remark, and the influ-
ence of this fact in this caae will be seen here-
after, that the articles of confederation were
not made between the people of the several
States, but by the State government; but the
Constitution was made, emphatically, by the
people of the United States, and adopted by
them in convention. The State governments
could form no such Constitution; they liad no
powers to do so delegated or intrusted to tliem.
The people are the sources of this power, both
of the State and general Eovernments; and
after forming the Constitution they declared
"this Constitution and tbe laws of the United
States which shall be mude in pursuance there-
of, and all treaties, etc, ahall be the supreme
law of the land," The Constitution, then, so
far aa it extends, is by the declared wilt of the
people supreme ; and is aa to bu considered in all
courts, and by all persons in the Uniied States,
Before the Constitution waa formed and
eatablished, all the powera 'of govern- [*134
ment had been granted by tbe people, and vest-
ed by them in uieir several State governments.
By the Constitution of the Union the people
granted to the government of the United Statei
certain powers, for certain purposes and ob-
jecla; and so far as these were so granted and
the States excluded from them, they were tak-
en from tl>« State goveromeuts by those who
gave these governminis their exietence, and by
those who had a riglit and power to give and
take away. That the Constitution was a grant
of powers by tbe people of the United States
is not only supported by the whole tenor of the
Constitution, but is so declared in expre:ii
words. In the first article it is said, "All Leg-
islative powers herein granted shall be vestal
in Congress," etc. Whenever, therefore, a ques-
tion occurs aa to the constitutional powers oF
the general government, we must examins
whether it be within the powers granted, or
which are necessary to carry into effect tht
powers granted. But tbe powers of the gen-
eral government are not now in question; the
question ia, whether the power exercised hj
the I,.egialBture of New York in passing the law
now under consideration ia prohibited, or ratb-
er, whether it was taken away from the Leg-
islature by the Constitution. If both tbe State
and the general government had been formed
at tte MOW Una, tke question would ban
Tbk Uatm, nv., cr xn Cnr or New Tokc t. Ibur.
1S4
B are Uk
en b.«b;. The power "to coin money," "tc
iuue bilta of credit," "to r*M tender tana." Iti
uiotber elua of caaes the State lesiBTaturei
cannot act without the conaent of Congreas
Th« States roar not lay duties, except they ar<
neccasary for their inspection laws, unless Con-
greas aHirms their laws imposing them. In thii
elaa* of cases the State may legislate with the
consent of Congress, and their acts will then
have validity. Cases alio exist in which the
power of States is taken away by necessary
implication. This clnns includes cases only
where the exercise of State Ipgialation upon the
aubject is wholly inconsistent with the powers
vested In the government and where the two
powera must necessarily conHict with each
Now, If the law of the StaU of New York
be unconstitutional, it ia not because it is
of thoEc cases in which all State legislatio
•xpresaly prohibited by the Constitution, for
not enumeratetl among the express prohibitions:
nor becausi? the consent of Congreas has not
bcfn obtained to the law, for it is not ol tha
125*] liescription of 'such cases; it can only
be invalid, because the power to pass it is tak-
en away by necessary implication.
Is the law repugnant to the powers vested
In the general government? Admit it to be a
regulation of commerce, is it therefore void'
Power is given to Congress to regulate com
mercc, but there is uothing in the Constitution
which comprls Congress to do so, and i1
Iwve been left to the action of the Stati
fore the Constitution was formed the States had
eommercial regulations, and if the power given
to CoDgreta was exclusive, all these laws were
repealed and void when the Constitution came
Into operation. This could not be, and it was
aot to understood by any State in the Union.
Every State haa acted under a different inter'
pretation of the Constitution.
What would have been tha situation of tbe
commerce of the country, if on the adoption of
the Constitution the whole of the commercial
ngulations of the several States bad become in-
inJidT Until Congress should legislate, all
would have been confusion; and if the legis-
lation had been incomplete, tha evils of such
imperfection would Tamain. No State lawB,
however long in force and neceaaary, could have
been invoked to supply the deficiencies. But
if the State lawa are left in foree until aome
act of Congress should come in conQict with
them, when they must yield, every principle
of necessity or justice aeems to be preserved
The case of Sturgia v. Crowninshleld, which
«Kine before this court, decided that a State in-
•olvent law waa invalid because it impaired the
obligation of a oontract, and came therefore
within the provision of the Constitution which
baa taken the power from the States to pass
Htch laws.
In the cose of Gibbons v. Ogdcn, K appeared
th»t a law of New York had ^ven to Living
■ton and Fulton the eicIuaivB nght to navigate
tlic waters of New York by steamboats. Thf
Mirintion of these riven waa a part of the
, of the United States, a part of the
sating tnd* whioh wu op«n to «11 the oiti-
(ena of tha United States, in relation to which
Congress had exercised the powers granted to
them by the Constitution. They had made it
nectssary for all coasting vessels to take out
licenses, which entitled them to navigate these
waters, and the law of the State came directly
in conflict with the act of Congreas and with
the licenses under it, and was therefore in-
The case of Brown v. The State of Maryland,
In 10 Whcaton, and all the cases which have
been cited, if examined, will show that none of
'the laws were declared invalid because [*12a
they were regulations of commerce, hut because
they came in conflict with rights derived under
acls of L'ongrt'ss which are declared to be the
Bupreme law of the land.
It is no answer to this argument to aay that
Congreas have legislated on the subject of the
regulation of commerce, and has therefore ex-
ercised the powers vested in them by the Con-
atitution, to the exclusion of the States. Un-
less Congress have legislated on the particular
branch of the aubject; unless they have ao leg-
islated as that their law and the law of New
York before the court are in collision with each
other, no necessary implication requirea that
the Stats power should oe considered aa taken
In several eases, when powers are giren to
Congress because the public Interest re^juires
there should be a general legislation on the
aubject, this court has declared that the State
power to legislate on it hoa not been taken
away until Congress actually exercises thn
Kwer granted to them.' This is tlie case in
nkruptcv, and in the laws relative to natu-
ral I uit ion.' Aa to the firat, cited, 10 Wheat. 190.
As to natural! Eati on. Collet r. Collet, 2 Dall.
ZM.
By the Conatitution Congress have power to
relate commerce with foreign nations, and
with the Indian tribes.
At the time the Constitution was adopted, in
many of the States there were large bodies of
Indiana. In New York, the whole of the now
populnus western part of the State was occupied
by Indiana. Congress did not legislate on the
subject of commerce with the Indians until
many years after tbe power was granted to it.
During the whole of this period, was not the
trade with the Indians left to the regulation of
the Statesl If tbe power of Congress aa to
general commerce was exclusive, was it not
[ually so as to the trade with the Indians!
It may be shown that Congrcaa have recog-
nised the powers of the States relative to this
subject, and the exercise of it.
A power to regulate commerce, must necea-
oarily include the means and manner of carry-
ing it on. The power to regulate pilots is
therefore given to Congress, hut it has not been
considered ai exclusive. The States have reg-
ulated pilots, and have adopted different sys-
tems for their government, and to induce or
impel the performance of the dutiea tbey nn-
ime. These State r^ulattons have been rec-
ognized by Congress in the "Act regulating
light -ho uses," passed August, 1789. Laws \J.
" ch. 0, sec. 4, vol. 1, 34.
Aa to the proposition that a law of a State is
valid when Congress 'recognizes it, and [*iai
that it has lU vaUditr from this reoognition;
•8r
127
Soncn COCTT or Tax Uimai Stars.
It ii denied that Congreu b»ve the power to
make taws in unf other form but by expres*
li'-gnBlntion, A law which is unconstitutional i:
not changed in its character by the rccognitioi
of Congress. So to the admiasioQ that State
laws are good until Congres* legislate on the
■ame subject matter, ig an admission that the
power of Congress over the subject is not
elusive. Quarantine laws arc coniinerdBl
their nature, and they are the regulations of
Thes« laws declare how, where, and when good;
imported under the authority ot the law* and
treaties of the United States may be landed,
and thus they materially interfere with and af-
fect commercial and shipping transactions.
It to a certain extent the Passenger Act of
Kew York is a commercial regulation, in order
to invalidate it, its conflict with the law of the
United States on the subject must be shown.
There is no incompatibility between them. All
the provisions of the taws of the United States
are left in full force, and the New York law
superadds other regulations, deemed necessary
for the prevention ot the introduction of pau-
pers, and to prevent the city being charged
with the support of the outcast population of
But if the court shall be of opinion that the
power of Congress to regulate commerce is ex-
elusive, and that it is taken from the States by
the Constitution, the question is presented, is
this act of New York a regulation ot com-
merce! It is denied to be such.
In the case of Brown v. The State of Mary-
land, 12 Wheat. 441, Mr. Chief Justice Mar-
shall, to whose every word upon constitutional
questions great attention is most justly due,
and from whose expositions of the Constitution
everyone wlio reads them will derive instruc-
tion, says: "In our complex system, the object
of tlie powers conferred on the government of
the Union, and the nature of the often conSict-
ing powers which remain in the States must al-
ways be taken into view, and may aid in ex-
pounding the words in any particular clause."
it is admitted, in this opinion, that there
are powers which remain in the States, which
must often conflict with the powera of Con-
gress; and in these coses we must always refer
to and take into view the object of the powers
conferred on the general government ot the
Union. Now, without entering Into an ex-
amination of any of the powers vested in Con-
gress, it is undoubtedly true that the object of
128*] *tfae people was to fonu a general,
national government, and to take from the
States no powers not necessary for that object.
Health laws, poor taws, laws respecting the
landing and storing of gunpowder, are all
States; and they are in no wise necessary or
proper to be intrusted to the general govern-
ment, and do not, therefore, come within the
object for whiob it was established. They are
not embraced within its words, and are there-
fore not taken from, but nccesaarily remain
proper subjects of State regulation, although
tbey inay in some respects have an influence
-<td bearing on the eommeree of the country.
the CM« ot QibboM t. OgdsB, It WItMt
203, the Chief Justloe says: 'That Inepeetkra
laws may have a remote and considerable in-
flupnoe on commerce, will not be denied; hot
that a power to regulate commerce !a tbt
source from which the right to pass them >l
derived, cannot be admitted- The object of in-
spection laws is to improve the quality of ar-
ticles, produced by the labor of the country, t«
fit them for exportation; or, it may be, for
domestic use. They act upon the subject before
it beoomes an article of foreign commerce, or of
commerce amuns the States, aiid prepare it for
that purpose, Ihey form a portion of that in-
mense mass of legislation which embraces
everything within the territory of a State mil
surrendered to the general government, all
which ean be most advantageously exerciseil
by the Stales themselves. Inspection Iswi,
quarantine laws, health laws of every descrip
tion, as welt aa laws for regulating the interaal
commerce of a State, and those which respect
turnpike roads, ferries, etc., are component
And In the case of Brown v. The Stat* of
Maryland, in 12 Wheaton, the same great con-
etitutional expounder t-nys: "The power to di-
rect the removal of gunpowder, is a bran::li oF
the police power which unqui'St ion ably remaim
and ought to remain in the States."
The power to regulate commcice is not thtt
from which the right to pass the law is de-
rived- It comes from a much higher enurce—
from those great conservative rights which ill
governments have, and must have, and muit
maintain, and must preserve. The object of all
well-regulated governments is to promote the
public good and to secure the public s.nfet}';
and the power of that IcK's'atiun necessarily
extends to all those objects; and nnless, therr-
fore, in any particular case the power is given
to the general government, it necessarily alitl
remains in the States. It is under these princi-
ples 'that the acts relative to police, [*Itt
which may operate on persons brought into a
State in the course of commercial operation*,
and the laws relative to quarantine and gun-
powder, are within the power of the Stilts.
They are not national in their character, and
■re nut, therefore, essentially within nations)
regulation. They are protected by the princi-
ples laid down in the cases referred to by Ml-
Chief Justice Marshall; when, in the coinplel
system of our govcinments, they may come In-
to conflict with the powers of the general legi*-
What are poor laws but police re^lntionsl
Ind are they not as essential to the security ot
.1] the inhabitants of a city as an^ health lnws,
and all laws of the same character T llie U*
question, on its face, purports to be a pour
law; and all its provisions relate to that sub-
JBct. The power to pass poor laws invuli-ea is
^t the right to regulate the whole subject; snd
f the public, on principles of humanity and
justice are bound to provide for the poor, and
can compel individusls to contribute to their
support, may not the law prevent the influi of
.rangers who have no claims on the commu-
ity into which they would come, and who ar*
sent among us by these wlioae duty It was to
provide tor and sustain them.
In Drown v. The State of Maryland, tbt
court iaj: "Question* of power do not d**
Pot«M II-
Tn Hf TDK, sro., or nu Cnr or Nbw Toik v
dMd. If it ttMy ha ucreiaed . ..
WMrcised at the will of ttioM in wboM lunda it
te plMed. On thi* principle, if the rigbt to
p«n poor iftWB exiit* in toe State, the extent
of U u to be decided bj the l«ii«lstum of the
BtatM."
It hH been tb» polief of the general gDven-
mtent to encourage the emigration of foreignera
to thie country. With the wUdom of that pol-
icy we lutve notbiag to do, Congreu are the
■olo judges of it. They have the power to reg-
ulAtetlM manner in which they ahall be brought
here, under the power to regulate commerce.
Mid they liave the lole power of holding out
anooiTBgement to them to come here by a nat-
uraJiiation eyatem.
But when they once arrive in this country,
they muat aubmit to the poor lawa ol the State
in which they land, and with which Congreas
h»Te BOthii^ to do. These taws have always
(•ciliated tlwRi, and they take care that after
b^g brought into the country they ehall not
beoone burdensome to it. The powers of Con-
grcM apply to their transit from abroad; they
extend over the navigation employed for tliis
purpose, and the; go no farther. No State can
faiterfere with any such provisions; but this
ISO*] doee not restrict the 'authority of the
Btete to interfere for its own safety, after alt
objeirta of tlie legislation of Congrese are ac-
complished.
If Congress may regulate passe o^rs from
one State to another, their power will extend
to compel the States to permit paupen to pass
from one SUte into another »taU. This, or
any power to interfere with the regulations a
State may adopt upon matters of this kind
will not, and never has been claimed.
A treaty between the United States and a
foreign nation cannot annul a State law right-
tully and constitutionally enacted by a State,
and in reference to matters within the power of
her Legislature. Treaties refer to commercial
interDOuree and advantages, and the law under
the emsideration of the eourt does not later-
fere with the provisionB of any treaty.
The law of a State may require more than
Congress have thooght necessary, but, if the
additional (trorisione Impose duties which are
reqnind for poUce and internal safety, such as
the laws relative to paupers and gunpowder,
and they do not interfere with or Interrupt the
action of the laws of ttte United States, the/
■n not neeptlonable.
Hr. Justlee Baibotti delivered the opinion
of the eonrti
This case comes before this court upon a eer-
tUeate of division of the Qrauit Court of the
United States for the Southern District of New
Yoi^.
It was an action of debt brought in that
eourt by the plaintiff to recover of the defend-
•Jit, as eonaignee of the ship called the Emily,
the amount of oertain penalties imposed by a
atatnte of New York, passed February 11th,
1824, entitled, "An Act concerning passengers
from mar
of any ship
acrivlni at the port of New York
eMiiit«7 «t of tte Uattad flUtea, w
BUU of New York, shall, within twenty-four
hours after the arrival of such ship or vesMl
in the said port, make a report in writing, on
oath or affirmation, to the mayor of the city of
New York, or, in case of his sickness or ab-
sence, to the recorder of tbe said city, of the
name, place of birth, and leat legal settlement,
age and occupation, of every person who shall
have been brought as a passenger in such ship
or vessel, on ber last voyage from any country
out of the United States into the 'port ["ISI
of New York, or any of the United States, and
from any of the United States other than the
SUte of New York to the city of New York,
and of all passengers who shall have landed,
or been suffered or permitted to land from such
■hip or vessel, at any place, during such her
last voyage, or have been put on board, or
suffered, or permitted to go on board of any
other ship or vessel, with the intention of pro-
ceeding to the said city, under the penalty on
such mHstcr or commander, and the owner or
owners, consi^'nee or cunaignces of such ship or
vessel, severally and respectively, of seventy-
five dollars for every person neglected to be
reported as aforesaid, and for every person
whose name, place of birth, and last legal set-
tlement,'age, and occupation, •
therein provided.
The declaration alleges that the defendant
was consignee of the ship Emily, of which a
certain WilUajn Thompson was master; and
that in the month of August, IHSO, said Thomp-
son, being master of such ship, did arrive with
the same in the port of New York from a ooun*
try out of the United Statoa, and that one
hundred passengers were brought in said ship
on her then lost voyage, from a country out of
the United States into the port of New York;
and that the said master did not make the re-
port required by tbe statute, as before recited.
The defendant demurred to the declaration.
The plaintiff joined in tbe demurrer, and
the following point, on a division of the court,
was thereupon certified to this eourt, viz.:
"Tluit the act of the Legislature of New
York mentioned in tbe plaintiff's declaration
assumes to regulate trade and commerce be-
tween the port of New York and foreign ports,
and is unconstitutional and void."
It la contended by the counsel for the defend-
ant that the act in question is a regulation of
eommerce; that the power to regulate oom-
merce is, by tbe Constitution of the United
States, granted to Congress; that this power is
exclusive, and that, consequently, the act is a
violation of the Constltutiou of the United
States.
On the part of the plaintiff it is argued that
an affirmative grant of power previously exist-
ing in the States to Congress is not exclusive!
except, 1st, where It is so expressly declared In
terms by the clause giving the power; or 2d,
where a similar power is prohibited to the
States) or 3d, where the power in the State*
would be repugnant *to, and ineompat- [*1S1
with, a similar power in Congress; that
132
EnniEint Comr or thc Unm BrATta.
Statet; and tbat It b not repugnant to, or In'
eompatibte with, a. Bimilar power in Congresi;
and that having pre-exiated in the Stutea they
therefore have a conrurrent power in relation
to the lubject. ant) that the act in question
would be valid, even if it were a regulation of
commerce, it not contravening an; regulation
made by CongrcKs.
But they deny that It In a regulation of
merce; on the contrai^, they aaaert that It !■ a
mere reflation of internal police, a power
over which is not granted to Congreas; and
which, therefore, as well upon the true con-
■truction of the Constitution as by foroe of the
tenth amendment to that loBtruroent, ia ~~
served to and resides in the several Statea.
We shall not enter Into any examination of
the question whether the power to rt^ulate
commerce 1m or be not exclusive of the Statea,
because the opinion which we have formed
renders it unnecessary; in other words, w<
of opinion that the act is not a regulatia
commerce, but of police; and that being thua
eonstdered, it waa passed in the exercise of a
power which rightfully helonced to the States,
That the State of New York possessed power
to p.iiui this law before the adoption of the
Constitution of the United Statea, mieht prob-
ablf he taken as a truism, without the neces-
sity of proof. But aa it may tend to present it
in a clearer point of view, we will quote a few
passages from a standard writer upon publie
law, showing the origin and character oi this
Vattel, book 2d, ch, 7th, sec, Bi.—The
ereigD may forbid the entrance of his territory
either to foreigners in general or in particular
cases, or to certain persons, or for certain par-
ticular purposes, according as he may think
it advantageous to the State."
Ibid., ch. 8, sec 100.— "Since the lord of the
territory may, whenever he thinks proper, for-
bid its being entered, he has, no doubt, a power
to annex what conditions he pleases to the
permission to enter."
The power, then, of New York to pass this
law having undeniably existed at tha forma-
tion of the Constitution, the simple Inquiry
is, whether by that instrument it was taken
from the States and granted to Congress; for
if it were not, it jet remains with them.
If, as we think, it be a regulation not of
1X3*] commerce but police, then it Is not
taken from the States. To decide this, let us
examine its purpose, the end to be attaiued,
ftud the means of its attainment.
It is apparent, from the whole scope of the
law, that the object of the Legislature was to
prevent New York from being burdened by
an influx of persons brought tfither In ships,
either from foreign countries or from any
Other of the Statea; and for that purpose a re-
port was required of the names, places of birth,
«te., of all passengers, that' the necessary
•tepa might be taken by the city authorities
to prevent them from becoming chargeable
M paupers.
Now, we hold that both the end and the
means here used are within the competency of
tht States, since a portion of their powers
were surrendered to the federal zovsmment.
IM US sea what powen are left with the
SUtea. Tba Fadcrollat, in the 4Cth Mtmber,
speaktng of this snbjeet, says the poweia re-
served to the several Statea will extend to all
the objects which, in the ordinary eourae ef
affairs, concern the lives, liberties and proper-
ties of the people, and the internal order, iii-
provement, and prosperity of the State.
And this court, in the case of Gibbons v. (k;-
den, e Wheat. SOS, which will hereafter bs
more particularly noticed, hi apeaking of tba
inspection lawa of the Statea, say they form a
portion of that immense moss of Isriaiatiaii
wliich embraces everything within the territoty
of a State not surrendered to the general got-
erament, all which can be most advaata,geOM-
ly exercised by the States themselvee. Inspte-
tion lawa, quarantine lawa, health iawsof erary
description, as well as laws for ngulatiug tlia
internal commerce of a State, and those whidi
respect turnpike roads, ferries, etc, are ooa-
ponent parts of this mass.
Now. if the act in (question be tried by ref-
to the delineation of power laid down
, brought to the eonelnsiaa
that it falla within ita limits. There is bo as-
pect in which it can be viewed io which it
transcends them. If we look at the place of
its operation, we find it to be within the terri-
tory, and, therefore, within the jurisdiction of
New York, If we look at the person on whoB
it operates, he is found within the aame terri-
tory and jurisdiction. If we look at the per-
sons for whose bencBt it was passed, they are
the people of New York, for whose proteetica
and welfare the Legislature of that State are
authorized and in duty bound to provide.
If wc turn our attention to the purpose to
be attained, it ia to secure that very proteetiMi,
and to provide for that veij welts^v. If we
■examine the means by which these [*1S4
enda are proposed to be accomplished, th^
hear a just, natural, and appropriate relatioa
to those ends.
But we are told that it Ttolatea the Constitn-
on of the United States, and to prora tbia «•
have been referred to two easea in this court;
the first, that of Oibhons t. Ogden, g Wheat,
1, and tlie other that of Brown v. The State of
Maryland, 12 Wheat, 419.
The point decided In the flist of theae cases
is that the acts of the Le^aUtnre of New York,
granting to certain individuals the eselnsiTe
navigation of all the waters witiiin the juiis-
dietion of that State, with boats moved by
steam for a term of years, are repugnant to
the clause of the Constitution of the United
States which authoriaes Congress to regulate
commerce so far as the aaid acta prohibit ves-
sels licensed according to the lawa of the Unit-
ed States for carrying on the eoaating trade,
from navigating said waters by means ot
In coming to that conetuaion, thia
court, in its reasoning, laid down several prep-
ositions, such sa that the power over commerea
included navigation; that it extended to the
navigable waten of the States; that it extend-
ed to navigation carried on by vesaela ezeln-
slveiy employed in transporting passeageia.
Now, all this reasoning was intended t« prove
that a steam vessel licensed for the coasting
trade was lawfully licensed by *irtiia of on Mt
of Congress; and that as the exclusive right to
navigate the wat«n of K«w Ytak, granted bj
Tux Uatob, etc. or tux City of New Yonx *. Hiui.
woitltl Iv in colIiBlon with th' right
•el tiernH^ under the art of CongrcBs tn n»vi-
gatr the lanw WBtera; and tfaitt as when that
eolliaioD occurred the Uw of the States mutt
jield to that of the United State! when law-
fultr enacted; therefore, the act of the SUte
of New York wu in that ea«e void.
The Bec;jDd caie, to wit, that of Brown v.
The State of Maryland. 12 Wheat. 419, decided
that the act of the State of Hxrfland re-
quiring ftll importers of foreign goods by the
bale or package, and other periona aelliag the
•ame by wholesale, bale or package, etc., to
take out a licenae for which they should pay
Bfty dollars, and in ease of neglect or refusal
to take out luch license, subjecting tliem to
certain forfeitures and penalties, \c»a repug-
nant, first, to that provision of the Constitu-
tion of the United States which declares that
"no State shall, without the consent of Con-
gress, lay any impost, or duty on imports or
exports, except what may be absolutely neees-
•*ry for executing ita iaspeetion lawi;" and
135*] second, to 'that which declares that
Congress sliall have power "to regulate com-
merce with foreign natians, among the several
Btates, and with the Indian tribes."
Now, it is apparent from this short analysis
of these two cases, that the question involved
in this case is not the very point which was de-
cided in either of thoM which have been re-
Lct us examine whether, in the reasoning of
the court, there is any principle laid down in
either of them which will go to prove thst the
•action of the law of New York on which this
prosecution is founded, is a riolation of the
Constitution of the United States.
In Gibbons v. Ogden. the law of the State as.
•nned to exercise authoritiy over the navigable
waters of the State; to do so, by gninting a
privilege to certain individuals, and by exclud-
uig mil othera from navigating them by vessels
propelled by steam; and in the particular casu.
tbia law was brought to bear in its operation
directly upon a vessel sailing under a coasting
license from the United States.
The court were of opinion that as tlie power
to regulate commerce embrxoed within its scope
that of regulating navigation alao; na the pow-
er over navigation extended to all the naviga-
Ue waten o7 the United State*; aa the watera
OK which Gibbons' veasel was sailing were navi-
gxbla; and as hia veesd waa sailing under the
authority of an act of Congress, the law of the
8tat« which assumed by its axcluaive privilege
granted to others to deprive a vesMl thus au-
tborixed of the right of navigating the tame
waters, was a violation of the Constitution of
the United State*, because it directly oonflicted
with the power of Congress to regulate oom-
merce. Now, there is not, in this case, one of
tha circumstance* which existed in that of
Gibbon* V. Ogden, which, in the opinion of the
eooit, rendered it obnoxious to the charge of
nnconstitu t ionali ty .
On the contrary, the prominent facta of this
ease are in striking contrast with those which
ebaraetericed that.
In that case, the theater on which the law
operated waa narigable water, over which the
eomt Hi/ that the powtr to rejpilxto
f Ik ad.
■ry purpose of ii
(he subject matter on which it operated «
t-pFsel claiming the right of navigation, a right
which the court say is embraced in the power
to regulate commerce; in this, the subject* on
which it operates are 'persons whose ['ISS
right* and whose duties are rightfully pre-
scribed and controlled by the laws of the re-
spective States within whose territorial limits
they are found ; in that, say the court, the ict
of a State came into direct collision with ax
act of the United States; In this no such c(d-
tision exists.
Nor is there the least likeness between the
facts of this case and those of Drown v. The
State of Maryland. The great gmuiiJs upon
which the court put that case were, llial sale
is the object of alt importation of goods; that,
therefore, the power to allow iinpurtation im-
plied the power to authoriie the sale of the
thing imported; that a penalty inllieled fur
selling an article in the character of importer
was ill opposition to the act of Congress which
authorized importation under the authority to
regulate commerce; that a power to tax an ar-
ticle in the hands of the importer the instant it
waa landed waa the same in effect as n power
to tax it whilst entering the port; that, conse-
quently, the law of Maryland was obnoxious
to the charge of unconstitutionality, on the
ground of ita violating the two provision* of
the Constitution; the one giving to Congrea*
the power tc regulate commerce, the other for-
biddins the States from taxing imports.
In this case it will be seen that the diacusaioa
of the court had reference to the extent of the
power given to Congress to regulate commerce,
and to the extent of the prohibition upon the
States from imposing any duty upon imports.
Now, it is difficult to perceive what analogy
there can be between a ease where the right
of the State was inquired into, in relation to x
tax imposed upon the sale of imported goods,
and one where, as In this case, the inquiry is
as to it* right over persona within its acknowl-
edged jurisdiction; the gouda are the subject of
commerce, the persons are not; the court did
indeed extend the power to regulate eommeroe,
BO as to protect the goods imported from a
State tax after they were landed, and were yet
in bulk, but why! Because they were the sub-
ject* of commerce, and because, as the power to
regulate oommerce under which the importa-
tion was made implied a right to selli'^luit
ri^t was complete without paying the State
for a second right to sell, whilst the balea or
packages were in their original form. But how
can this apply to persons I They are not the
subject of commerce; and, not being imported
goods, cannot fall within a train of reasoning
founded upon the construction of a power
given to Cungress to regulate 'com- [*1X1
mvrce. and the prohibition to thp State* from
imposing a duty on imported gouds.
Whilst, however, neither of the points de-
cided in the csiwi, thus referred t'l is the same
with that now under oonnideration, and whilat
the general soope of the iwasoninK of the oourt
in each of them appliex tft ijueetiona of a dit-
larcxl nxture, there ia a pxtion of that rwnn
m
tjDnuEHa UioH or xnE Unm StAiu.
un
Ing ta «ieh which hsa k direct bearing upon
th« preient subject, and which would jualiFy
measurei on the part of States, not only ap-
proaching the line which separates Tegulations
of commerce from those of police, but even
those which are almost identical with the
former class, If adopted in the exercise of one
of their acknowledged power*. In Gibbons v.
Ogden, B WheatoR, 204, the court say if a
State, in passing laws on a subject acknowl-
edged to be within its control, and, with a
view to those subjects, shall adopt a measure
of the same character with one which Congrew
nay adopt. It does not derive its authority
the State, and ma^ be executed by the iuna
means. All experience shows that the same
meaaure or measures scarcely distinguishable
from each other, may flow from distinct pow-
er*; but this does not prove that the powers
are identical. Although the means used in
their execution may sometimes approach each
other so nearly as to be confounded, there are
other situations in wbiah they are aufTiciently
distinct to establish their individuality.
bi page 209 the court say; Since, however.
In regulating their own purely internal affairs,
whether of trading or of police, the States may
•ometimes enact laws, tbe validity of whitm
depends on their interfering with, and being
eontrary to an act of Congress passed in pur-
suance of the GonstitutioD, they would inquire
whether there was such collision in that case,
and they cam« to the conclusion that there
„ »ithin the legitimate scope of Its power
aa to the end to be attained, it may use what-
soever means, being appropriate to that end, it
may think fit; although they may be the same,
or so nearly the sankc, aa scarcely to be distin-
guishable from those adopted by Congress
acting under a dillerent power: subject only,
■ay the court, to this limitation, that is the
event of collision, the law of the State must
yield to the law of Congress. Ibe court
must be understood, of course, as meaning
1S8*] 'that the law of Congress is passed
Upon a subject within the sphere of Its power.
Bven then, If the section of the act in ques-
tion could t>e DonBidered aa partaking of the
natal* of a commercial regulation, the prin-
ciple here laid down would save it from con-
demnation, if no such collision exist.
It haa been contended at the bar that there
it jthat collision, and in proof of it we
have been referred to the Revenue Act of
17BB and to the Act of 1819 relating to pas-
■engeiB. The whole amount of the provision
in relation to this subject, in the first of these
acta, is to require, In the manifest of a cargo
of goods, a statement of the names of the
paasengers, with their baggage, specifying the
number and description of packages belonging
to each respectively. Now, it is apparent, as
well from the language of this provision
duties required by law, under the pretext of
being the baggage of pasBBn^rs.
Tha Act of I81B eontaina reflations ob-
ffotMl7 dsalgnad for the •omfort of tlw paa
•«l
sengera themselves ; for this purpoae It prohlMU
the bringing more than a certain number
proportioned to the tonnage of the vessel, and
prescribes the kind and quality of provisions
or sea-stores, and their quantity, in a certain
proportion to the number of the passengers.
Another section requirea the master to report
to the collector a list of all passengers, desig-
nating the age, sex, occupation, the country to
wltich they belong, etc.; which list is required
to be delivered to the Becretary of State, and
which he is directed to lay before Congress.
The object of this clause, in all probabil-
ity, was to enable the government of the United
States to form an accurate estimate of tlie in-
crease of population by emigration; but, what-
soever may have been its purpose, it is obrl-
ous that these laws only atfeet, through the
power over navigation, uia passengers whilst
on their voyage, and until they shall hava
landed. After that, and when they have ceased
to have any connection with the ship, and
when, therefore, they have ceased to be paa-
sensers, we are satisfied that acts of Congress,
applying to tbem as such, and only professing
to legislate in relation to them as such, have
then performed their office, and can, with no
propriety of language, be said to come into con'
Diet witQ the law of a State, whose operation
only begins when that of the laws of Congress
ends; whose operation is not even on the same
subject, becausB although *the person on [*139
whom it operates is the same, yet having
ceased to be a passenger he no longer stands
in the only relation in which the laws of Con-
eitlier professed or intended to act upon
There is, then, no collision between the Inw
in question and the acts of Congress just com-
mented on; and, therefore, if the State law
were to be considered as partaking of the na-
ture of a commercial regulation, it would stand
the test of the most rigid scrutiny, if tried bj
the standard laid down In the reaooning of
the court, quoted from the case of Qibbona t.
But we do not place our opinion on thin
ground. We choose rather to plant ourBclvee
on what we consider impregnable positions.
They are these: that a State Has the ume un-
deniable and unlimited jurisdiction over all
persons and things within its territoiial Umita,
as any foreign nation, where that juiiaLlietioa
is not surrendered or restrained by (he Consti-
tution of the United SUtes. That, by virtue of
this, it is not only the right, but Ui; bounden
and solemn duty of a State, to advance the
safety, tuippiness and prosperity of its people,
and to provide for its general welfare, by anj
and every act of legislation which it may deem
to be conducive to these eodsi where the pow-
er over the particular subject, or the manner of
its exercise is not surrendered or restrained, in
the manner just stated. That all those powers
which relate to merely municipal legislation,
or wtiat may, perhaps, mure properly be called
internal police, are not thus surrendered or re-
strained; and that, consequently, in relation ta
these, the authority of a State is complete, un-
qualified and exclusive.
Wa are aware that It U at aU times difSeult
to define any subject witb proper prcdsiou and
accuracy] If IhU kw w in fsnaral, It ia •«-
P«Un 11.
Thi Uayok, kto^ or tujc Cm or Nkw Y<ttK t. Ubm.
inbject lo diver-
lAatlMlIr M ht reUtion to ■
tifiad ftod tauttifnrioiu m tbe one wdicd we &re
now considering.
If we were to attempt tt, ne ahould »%7 that
ererj Uw catna within this description which
eoncemed the welfare of the whole people of a
State, or any individual within it, whuther it
related to their rights, or their duties; whetlier
it respected tbem ai men, or as citizens of the
State; whether in their public or private rela-
tion*; whether It related to the rightt of per-
■ons or of property of the whole people of a
State, or of any individual within it ; and whose
operation was within the territoria! limits of
the State, and upon the persona and things
within its jurimliction. But we will endeavor
to illustrate our meaning rtktber by exemplifi-
cation than by definition. No one will deny
140*] that a State haa a right to puni&b 'any
Individual found within its jurisdiction who
■hall have committed an offense within its ju-
risdiction against its criminal laws. We tpcuk
not here of foreign ambassadora, as to wliom
the doctrines of public law apply. We suppose
it to be equally clear that a State has sa much
right to guard, by anticipation, against the com-
Biiasion of an offense against its laws, aa to in-
flict punishment, upon the offender after it shAll
have been committed. The right to punish, or
to prevent crime, does in no degree depend up-
on the dtisensliip of the party who is obnox-
loua to the taw. The alien who shall just have
•ct his foot upon tbe soil of the State is just as
■ubject to the operation of the law as o.ie who
ia a native citizen. In this very ease, if either
the master, or one of the crew of tbe Emiiy, or
one of the piissengers who were landed, bad,
the next hour aftw they came on shorv, com-
mitted an offense, or indicated a disposition to
do (o, he would have been aubject to the crim-
inal law of New York, either by punishment
for the offense committed, or by prevention
from it* commission where good groujid for ap-
prehannon was ahown, by being required to
enter Into a recognizance with surety, either to
keep the peace, or be of good behavior, as the
ease might be; and if he failed to give it, by
liability to be imprisoned in the discretion of
tbe competent authority. Let ua follow this up
to tta poBBible results. If every ofHcer and every
liflhraenti although, thereby,
lave iieen left without eitbei
eoromutder or crew. Now, why is thia I For no
other reaaon than thia, simply that being with-
in tbe territory and jurisdiction of New York,
they vere liable to tbe laws of that State, and
among otheia, to its criminal tawa; and this,
too, not only for treason, murder, and other
erimcB of that degree of atrocity, but for the
noat petty offenae which can be imagined.
It would have availed neither officer, sea-
man, or passenger, to have alleged either of
these several relations in the recent voyage
across the Atlantic. The jhort but declaive an-
■wer would have been, that we know you now
onlj as offenders against the criminal laws of
Kew York, and being now within her Juriadic-
tion, yon are now lUble to the cognizance of
tboM laws. Surely the ofBcera and seamen of
tbe Teasel have not only as much, but more eon-
eera with naviption than a passenger; and
yet, la the a
them would 1 _
same liability, and for tbe tame leasoos, on the
part of the olficera, seamen, 'and pas- [*141
scngers to the civil process of New Yori, in a
suit for the moat trivial sutn; and if, aocordinj;
to the laws of that State, tbe party might be
arrested and held to bail, in tbe event of hia
failing to give it he migbt be Impriaoned until
discharged by law.
Here, then, are the officers and seamen, the
very agents of navigation, liable to be arrested
But the instrument of navigatio., __,
the vessel, when within the jurisdiction of Um
State, is also liable by ita laws to execution. It
tbe State have a right to viudicate ita criminal
justice agaiust the otGcers, seamen, and passen-
sers who are within its jurisdiction, and also
m the administration of its civil justice, to
cause process of execution to be serred on the
body of the very agenta of navigation, and also
on the inatrumeat of navigation under which it
may In sold, because they are within ita juria-
diction and subject to ita taws; the same rea-
sons, precisely, equally aubject tbe master, in
the case before the court, to liability for failure
to comply with the requisitions of the sectiun
of the statute sued upon. Each of these luwii
depends upon the same principle for its sup-
port, and that is, that it was passed by the
6Cate of New York, by virtus of her power to
enact such laws for her internal police as it
deemed beat, which laws operate upon tbe per-
sons and Ibinga within her territorial limits,
and therefore within her jurisdiction.
Kow, in relation to the section in the act im-
mediately before us, that is obviously passed
with a view to prevent her citizens from being
oppressed by the support of multitudes of poor
persons, who come from foreign eounCriee
without possessing the means of supportinc
themselves. There can be no mode in which
tbe power to regulate internal potioe could be
more appropriately exercised. New York,
from her particular situation, ia, perhaps, more
than any other city in tbe Union, exposed to
the evil of thousands of foreign emigrants ar-
riving there, and the consequent danger of her
citizens being subjected to a heavy charge in
the maintenance of those who are ^oor. It ia
tbe duty of tbe State to protect its citizens
from this evil; they have endeavored to do ati
by passing, among other things, the section of
the law in question. We should, upon princi-
ple, say that it had a right to do so.
Let ua compare this power with a maas of
power said by this court in Gibbons t. Ogden
not to be surrendered to tbe general govern-
ment. Tbey are inspection laws, quarantine
lawi, health 'laws of ever^ description, ['142
as well as taws for regulating the internal com-
merce of a State, e^ To wliich it may be
added that this court, in Brown v. The State of
Marylaud, admits the power of a State to di-
rect tbe removal of gunpowder, as a branch of
the police power, which unquestionably re-
mains, and ought to remain with the SUtea.
It ia easy to show that if these powers, aa is
admitted.-remain with the States, they are
atronf^er examples than the one now in qnes-
tion. The power to paie Inspection laws in-
•••
la
Sunuu OouBT or tub Ukitid Utatu.
Tolm the rlBht to examine article* which are
Imported, and are, therefore, directly the sub-
ject of eommerce; and if an; of them are found
to be unsound, or infectious, to chusg them to
be removed, or even destroyed. But the power
to poM these inspection laws is itself a branch
of the general power to regulate internal police.
Again, and the power to pass quarantine
laws operateg OD the ship which arrives, the
goods which it brings, and all persona in it,
whether tha officers and crew, or the paasen-
gen. Now, the oBicers and crew are thu agents
of navigation, the ship ii an instrument of it,
and the cargo on bo&rd is the subject of cam-
mereci and yet it is not only admitted that this
power remains with the States, but the laws of
the United States enpressly sanction the quar-
antines and other restraints which shall bt- re-
quired and established by the health laws of
any State; and declare tliat they shall be duly
observed by the collectors nnd all other rev-
enue officers of the United States.
We consider it unnecessary to pursue this
comparison further, because we think that if
the stron^r powers under the necessity of the
ease, by inspection laws and quarantine laws
to delay the landing of a ship and car|!i>. which
are the subjects of coniiiicrc<! and n;ivi;{»liun,
and to remove or even to destroy iina.mtid anil
infectious articles, also the subject of cumtii'iu-,
can be rightfully exercised; then Ihiit it n],i4t
follow as a consequence that powers li^a-- Mir ii;.
such as the one in question, which operates
Dpon DO subject either of commerci' or nun
Bttion, but which operates alone within thi!
■nits and jurisdiction of New Yoric upon ii
person at the time not even engaged in naviga-
tion, ii still more clearly embraced with'ii tlie
general power of the States to regulate their
own internal police, and to talce care that no
detriment come to the comnuin wealth.
We think it as competent and as necessary
for a State to provide precautionary meosui'es
against the moral pestilence of paupers, vaga-
bonds, and possibly convicts, as it is to guard
against the physical pestilence which may arise
from unsound and infectious articles impartvd,
143*] 'or from a ship, the crew of which may
be laboring under an infectious disease-
As to any supposed conflict between this
provision and certain treaties of the United
States, by which reciprocity as to trade and
Intercourse It granted to the citizens of the
governments with which those treaties were
made, it is obvious to remark that the record
does not show that *jiy person in this case was
ft subject or citizen of a country to which
treaty stipulation applies; but, moreover, those
which we have examined, stipulate that the citi-
zens and subjects of the contracting parties
■hall submit themselves to the laws, decrees,
and uaages to which native dtixens and sub-
jeeta are subjected.
We are therefore of opinioa, and do direct ft
to be certifled to the Circuit Court for the
Southern District of New York, that to much
of the section of the act of the Legislature of
}few York as applies to the breaches assigned
in the declaration, does not assume to regulate
e between the port of New YotTl and
We exproM no opinion on any other part of
the aet of the Le^slatnra of New Yoit, W
cause no question could ariae fn tbe case fn re-
lation to any part of the act except that de-
clared upon.
Mr. Justice Thompson.
This case comes up from the Qrcuit Court
for the Southern District of New York upon ■
ct-rtilicate of a division of opinioo of the judges
upon a queetion wbieh arose upon the trial of
the cause.
The sction is founded upon an act of tta*
Legislature of the State of New York concvni-
ing passengers in vessels coming to the port of
New York, and is brought against the defend-
ant, being consignee of the ship Emilv, in re-
cover certain pL-nalties given in the act f-.r lb*
neghct of the master of the ship to niiikp a
report to the mayor of New York of the name
and description of tbe passe neers who had
lieen brougiit in the ship on her last voyage.
The dPcUration sets out, in part, the law on
which the action is founded, and avers lliat on
the 2nh day of August, in the year 18-2'J, Wil-
liam Thompson, being master or commander of
said ship, did arrive with the said ship or ves-
sel in the port of New York from a country
out of the United States, to wit, from Liver-
pool in England, or from one of the United
States other than this State (New Yorl:), to
wit, from the State of New Jersev. at the
city and within the Coimty of New York;
and it is further averred that one hundred
"persons were brought as passengers in ['144
said ship on her last voyage, from a country
out of the United States, to wit, from Liver-
pool aforesaid, into tbe port of New York, or
into one of the United States other than the
State of New York, to wit, into tbe State of
New Jersey, and from thence to the city of
New York; and that the said master of the
vessel did not, within twenty-four hours after
the arrival of the ship in the port of New
York, make a report in writing to the ma^ror
or recorder of the said dty. of the name, plaea
of birth, and last legal settlement, age and oc-
cupation of the said several persons so brought
as passengers in said ship, pursuant to the pro-
visions of the act, in part hereinbefore recited;
but that a large number of the said persons, to
wit, one hundred, were neglected to be reported,
contrary to the directions and provisions of
the said act, whereby an action hath accrued
to tbe plaintilT to demand and have from the
defendant, the consignee of the said ship, tbe
sum of seven thousand five hundred dollars.
To this declaration there Is a general demunw
and joinder.
Tbe certificate then states that the cause was
continued from term to term until the l^t
Mondav in October, in the year 1829, at which
term the following point was presented on tha
Crt of the defendant, vit.: That the act «f the
gislature of the State of New York, men-
tioned in tbe plaintiff's declaration, assumes to
regulate trade and commerce between the port
of New York and foreign ports, and is unoon-
htitutional and void. And upon the question
thus occurring, the opinions of the two judges
were opposed, and the point upon which the
disagreement happened is certifled to this eouit.
Although the point aa here stated is geaenl,
and might embrace the whole of the act retenrJ
FMM* II.
Tbk Uatm, cro., or Tut Citt of Hew To«x t. Ham.
144
to In the plklntitTi declaration, yet Hi Tklidlt;
cannot comB under conaidemtion here an; fur-
ther tlun it applied to the queHtion before the
Circait Court. The question arose upon a
general demurrer to the declaration, and the
oertiflcate under which the cause is seat here
GontAina the pleadings upon which the ques-
tion arose, and show that no part of the act
wsa drawn in question except that which re-
Ifttea to the neglect of the master to report to
the majror or recorder an account of his paseen-
jrara, according to the requisition of the act.
So other part of the act could have been
brought under the consideration of the Circuit
Court, or could now be passed upon by this
court, was it even presented in a separate and
distinct point For this court will not en-
tertain any abstract question, upon a certifl-
Cftte of division of opinion, which does not
146*1 'arise in the cause. The question must
occur before the Circuit Court, according to
the express terms of the act of Congress, in or-
der to come here upon such division of opin-
ion. And if the only cause of action alleged
in the decTaratiou was the neglect of the mas-
ter to report his pnsaengers to the mayor or
recorder, no other part of the act could have
been drawn in que:ition; and although the
question aa stated may be broader than was
necessary, yet as the declaration and demurrer
are embraced In the certificate, the Question In
the Circuit Court cannot be mistalten. The
certificate might have been sent bach for a
mora specific statement of the point; hut as the
brcAch is assigned under this part of the act
onl7, and aa we see that no other part of the
act could have been drawn in question in the
Circuit Court, it is not deemed necessary to
send the cause back for a more sjiecific state-
ment of the poiot. I shall accordmgly confine
mj inquiries simply to that part of the act of
the Legislature of the State of New York
which requires the master, within twenty-four
hours after the arrival of the vessel in the port
of New York, to make a report in writing to
the mayor or recorder, of the name, place of
birth, and last legal settlement, age and occu-
Mtion of every person who shall have been
brought as a passenger in such ship or vessel
on her last voyage. I do not mean, however,
to intimate that any other part of the act f*
unconstitutional, but confine my inquiries to
the part here referred to, because It is the only
part that can arise in this case. And any opin-
ion ezpreaaed upon other parts would he eztra-
judicikL
Thia act Is alleged to be unconstitutional on
tha ground that it assumes to regulate trada
ftnd commerce between the port of New York
and foreign ports, and ii a violation of that
part of the Constitution of the United States
which gives to Confess the power to regulate
commerce with forei^ nations.
This clause in the Constitution has repeated-
ly been drawn In question before this court,
and has undergone elaborate discussion, both at
the bar and upon the bench; and so far as any
point* have been settled, I do not consider
them now open for examination. In the lead-
ing cases upon this ouestion, where the State
Isw has been held to be unconstitutional, there
was an actual conflict between the legislation of
Congicas and tbat of the SlatM, upon the right
• Ii. ad.
drawn tn question. D Wheat. 19S; IS Wheat.
446; 6 Peters. 61S. And hi all sudt cases the
law of Congress is supreme; and the State
law, though enacted in the exercise of powers
not contruverted, must yield to it. 'Hut r*14«
in the case now before the court no suen eon*
flict arises; Congress has not legislated on this
subject in any manner to alTect this quesUon.
By the S3d section of the Duty Act of 17B0 (3
vol. Laws U. B. 16S), it is required that the
manifest shall contain the names of the sev-
eral passengers, distinguishing whether csbin
or steerage passengers, or both, with their bag-
gage, specifying the number and description of
packages belonging to each, respectively! but
this is a mere revenue law, having no relation
to the passengers after they have landed. Nor
does the act regulating passenger ships and
vessels (6 vol. Iaws U. 8. 37S) at all conflict
with this State law. Ita principal object is to
provide for the comfort and ssfety of pas-
sengers on the voyage; it requires the captain
or master of the vessel to deliver a list or
manifest of all passengers, with the manifeat
of the cargo, and the collector is directed to re-
turn, quarterly, to ths Secretary of State,
copies of such list of passengers; by whom
statements of the same is required to be laid
before Congress at every session, by which it
is evident uiat some statistical or political ob-
ject was in view by this provision.
It Is not necessary, in this ease, to Ibt any
limits upon the legislation of Congress and of
the States on this subject, or to say how far
Congress may, under the power to regulate
commerce, control State legislation in tUs la-
spect. It is enough to say that whatever tha
power of Congress may be, it has not been ex-
ercised so as, in any manner, to conflict with
the State law; and if the mere grant of the
power to Congress does not necessarily imply
a prohibition of the States to exercise the pow-
er until Congress assumea to exercise it, no ob-
jection on that ground can arise to this law.
Nor It It necessary to decide, definitely,
whether the provisions of this law may be con-
sidered as at all embraced within the power to
regulate commerce. Under either view of the
case, the law of New York, so far at least aa it
is drawn in question in the present suit, la an-
tirely unobjectionable.
This law doe* not. In any respect, fnterfer*
with the entry of the vessel or cargo. It re-
quires the report of the master to be made
within twenty-four hours after the arrival of
the vesseL In the case of Gibbons v. Ogden, t
Wheat. US, it is said, the genius and charac-
ter of the whole government seems to be that
Its action is to be applied to all tha aztemal
concerns of the nation, and to those Intenial
concerns which affect the States generally, bnt
not to those which are eompletety within a par-
ticular State, which do not affect other States,
'and with which It is not necessary to [*14T
interfere for the purpose of executing some of
the gennul powers of the government. Tha
completely internal commerce of a SUte may
then be considered as reserved for the State
itself.
To test the present case by this rule. Ths
duty here Imposed arises after the master and
passengers had arrived within the timlta of the
SUte. ud la applM t« tbt puraly Internal
147
SuPBKiat CocBT or tb* Vnvat Btatks.
IS37
conMiTS of tha St«te. This pravlilon doen not
street other Stfttei, or mnj lubject iieceBsary for
the purpoBo of executing any of th" general
power* of the government of the Union. For
although coraiDerce, within the tense of the
Constitution, may mean intercourse, and the
power to refjulate it be co-eTteosive with the
aubject on which it bcIb, and cannot be stopped
at the external boundary of a State, aeconliag
to tha language of this court in the case of
Brown t. The State of Maryland, 12 Wheat.
446, It cannot be claimed that the maater or
the pasBengers are exempted from any duty
imposed b^ the lawa of a St&te, after their ar-
rival within its jurisdiction 1 or have a right to
wander, uncontrolled, after they become mixed
with the general population of the State; or
that any greater rights or privileges attach to
them, because they come in through the medi-
um of navigation, than if the^ come by land
from an adjoining State; and if the State bad
k right to guard against paupers becoming
chargeable to the city, it would seem necessari-
ly to follow that it had the power to prescribe
< he means of ascertaining who tbey were, and
a list of their names ia indispensable to effect
that object. The purposes intended to be an-
swered by this taw fall within that internal po-
lice of the State, which, throughout the whole
caoe of Gibbons v. Ogden, Is admitted to remain
with the States. The court there, in speaking
of inspection laws, say they form a portion of
that immEuse mass of legislation which em-
braces everything within the territory of a
State not surrendered to the general govem-
ment; alt which can be tnoat, advantageously
eie'cised by the States themselves. Inspection
laws, quarantine laws, health laws of every de-
■cnption, a« well as laws for regulating the in-
ternal commerce of a State, and those which re-
spect turnpike roads, ferries, etc., are compon-
ent parts of this idbbs. No direct general pow-
er over these objects is granted to Congress,
and, consequently, they remain subject to State
legislation. If the legislative power of the
State can reach tbem, it must be for national
purpose*; it must be when the power is ex-
firessly given for a special purpose, or is clearly
ncidental to some power which is expressly
148*] given. *Agsin, in speaking of the law
relative to the regulation of pilots, it is aaid
that when the government of the Union was
brought into existence. It found a system for
the reeulation of Its pilots in full force io
every State, and that the adoption of these
lawa, aa also the prospective legislation of the
States, manifests an intention to leave this
subject entirely to the States, until Congresa
should think proper to interpose; but that the
■ection of the law under consideration is con-
fined to pilots within the bays, inlets, rivers,
harbor*, and ports of the United States, which
are. of oourie, in whole or in part, within the
limits of some particular State; and that the
acknowledged power of a State to regulate its
police, its domestic trade, and to govern its own
citiieos, may enable it to legislate on this sub-
ject to a considerable extent. But that the
adoption of the State system, being temporary
until further legislative provision shall be made
by Cangeeit, show* conclusively an opinion that
ingTM* cou
i^t adopt
could control the whole subject, and
' the ■; item of the States or pro-
Tide ono of its own. Here seems to b« a fnU
recognition of the right of a State to legia1*ta
on a subject coming confessedly within tlM
power to regulate commerce, until Congreu
adopts a system of its own.
And again, in the eaae of Brown t. Th«
State of Maryland, the court, in speaking of
State laws in relation to gunpowder, say the
power to direct the removal of gunpowder im k
branch of the police power, which unquestion-
ably remains and ought to remain with the
State*. The State law here Is brought to set
directly upon the article imported, and nuir
even prevent its landing, because it might «b-
danger the public safety.
Can anything fall more directly within tlie
police power and internal regulation of a State
than that which concerns the care and manags-
ment of paupers or convicts, or any other class
or description of persons that may be thrown
into the country, and likely to endanger its
safety, or become chargeable for their main-
tenanceT It is not intended b^ this remark to
cast any reproach upon foreigners who may
ariive in this country. But if al! power to
guard against these mischiefs is taken ivrmy,
the safety and welfare of the community mmj
be very much endangered.
A resolution of the old Congress passed on
the IBth of September, I7BS, has an important
bearing on this subject. 13 vol. Joumala of
Congress, 142. It is as follows; 'Hesolved,
That it be, and it is hereby recommended to
the several States to pass proper laws for prs-
venling 'the transportation of con- [*14*
victcd malefactors from foreign countries into
the United States." Although this resolution
is confined to a certain description of persoiu,
the principle involved in it must embrace ever^
description which maf be thought to endanger
the safety and security of the country. But
the more importsnt bearing which this resolu-
tion had upon the question now before the
court, relates to the source of the power
which is to interpose this protection. It was
passed after the adoption of the Constitution
by the oonvention, which was on the ITth of
September, 17B7. It wo* moved by Mr. Bald-
win, and seconded by Mr. Williamson, both dis-
tinguished members of the convention which
formed the Constitution, and is a strong co-
tempo raneous expression, not only of their
opinion, but that of Congress, that this was a
power resting with the States, and not only
not relinquished by the States, or embraced in
any powers granted to the general government,
but still remains exclusively In tbe States.
The case of Wilson v. The Black Bird Creek
Marsh Company, 8 Peters, ZSl, is a strong case
to show that a power admitted to fall witUa
the power to regulate commerce may be exer-
cised by the States until Congress assumes the
exercise. Tbe State law under consideratioa
in that case authorized the erection of a dam
across a creek, up which the tide flows for some
distance, and thereby abridged the ri^t of
navigation by those who had been accustomed
to use it. The court say: "The counsel for the
pinintilT in error insist that it comes In eon-
ilict with the power of the United States t«
regulate commerce with foreign nations, t^A
amons the several States. If Congress had
passed aaj act whloh bore upon the case, any
IS37
Tub Mav<
, or THK (^iTT OF New Vobk t. Uiui.
14*
•et tn txecutloD of the power to reflate eoto-
merct!. the object of which was to control Stnte
I^lslatlon over those amttll navi^ble cfpcUb
in'.o which the tiUc flowa, and which abounJ
throughout the lower country of the Jfji^dh
and Sutiihprn R(Blea; we ihould not have mui)
difficulty in tiiiying that a Slate iaw, comini^
in conllict with such act, would be void. But
(^ngreaa has pas^vd do euch act. The re-
pugnancy of the law of Delaware to the Con-
atitutiun is placed entirely on its repugnancy
to the jjowcr to regulate commerce with for-
eign nations, and among the aeveral States; a
power which has not been bo exercised as to
affect the quc>ation. We do not think that the
act emponeiing the Blackbird Creek Marsh
Compnny to place a dam across the creek
under al'l the circumntanees of the case, be
sidcred as repugnant to the power to regulate
150*] commerce 'in ite dormant state
bsing in conflict with any taw passed
subject. The State law here operated upon the
navigation of waters over which the power to
regulate commerce confessedly extends; and
yet fhe State law, not coming in conflict with
any act of Congresa, was held not to be uncon-
■titutionnl, and was not alfected by the dor-
mant power to regulate commerce. By the
■ame rule of construction, the law of New
York, not coining in cjnitict with any act of
Congress, is not void by reason of the dormant
power to regulate commerce; even if it should
be admitted that the subject embraced in that
law fell within such power. This principle 1<
fully reco^iied by the whole court in the cast
of Houston V. Moore, 5 Wheat. 1. The valid-
ity of a law of the State of Pennsylvania rela-
tiva to the militia of that State came under
the considiration of the court, and Mr. Justice
Washington, who spoke for a majority of the
court, says: It may be admitted at once that
the militia belongs to the States respectively in
which they are enrolled, and that they are sub-
ject, both in their civil and military capacities,
to the jurisdiction and laws of such State, ex-
cept BO far as those laws are controlled by acts
of Congress, constitutionally made. Congress
has power to provide for organizing, arming,
and disciplining the militia, and it is presum-
abia that the framers of the Constitution con-
templated a full exercise of this power. Never-
theless, if Congress had declined to exercise
them, it was competent for the State govem-
menta to provide for or;;Bnizin;;, arming, and
disciplining their respective militia in such
this point, says: It is contended
States do poi^sess this power over the militia,
they may abuse it. This, says be, ii a branch
of the exploded doctrine that within the scope
in which Congress may legislate the States
shall not legislate. That they cannot, when
legislating within that wide region of power,
mil counter to the laws of Congress, is denied
by no one. When instances of this opposition
occur, it will be time enough to meet them.
And Mr. Justice Story, who also dissented
from the result of the judgment, ia still mora
full and explicit on this point. "The CoDstt-
tution," says he, "containing a grant of pow- 1
era In many instances aimilar to tlios* alivady i
• T. Mrf. d
existing in the State governments, and some of
these b''ing of vital importance also to Stat*
authority and State legislation, It is not to be
admitteii that a mere grant of such powers, in
affirmative terms, to Congress, does, per a*,
ttansler an exclusive •sovereignty on I'lBl
such subjects to the latter. On the contrary, a
reasonable interpretation of that instrument
necessarily leads tfl the conclusion that the
powers so granted are never exclusive of simi-
lar powers existing in the States, unlese when
the Constitution has expressly, in terms, given
an exclusive power to Congress, or the exer-
^■ise of a like power ii prohibited to the States,
or where there is a direct repugnancy, or in-
I'ompatibility in the exercise of it by the States.
The example of the flr^t class is to be found
in the exclusive legislation delegated to Con-
gress over places purchased by the consent of
the legislature of the State In which the same
shall be, for forts, arsenals, dockyards, etc.]
of the second clsss, the prohibition of a State
to coin money or emit bills of credit; of the
third class, as this court has already held, the
power to establish an uniform rule of natural-
isation, and the delegation of admiralty and
maritime jurisdiction. In all other cases, not
falling within the classes already mentioned, It
seems unquestionable that the States retain
concurrent authority with Congress, not only
upon the letter and spiilt of the eleventh
amendment of the Constitution, hut upon th«
soundest principle of reasoning. There is this
reserve, however, that in cases of concurrent
authority, when the laws of a State and of the
Union are in direct and manlfeat collision on
the same subject, those of the Union, being
the supreme law of the land, are of paramount
authority; and the State laws so far, and so
far only as such incompatibility exists, must
necessarily yield."
Whether, therefore, the law of New York, so
far as it is drawn in question in this case, be
considered aa relating purely to the police and
internal government of the State, and as part
of the system of poor laws in the city of New
York, and in this view belonging exclusively
to the legislation of the State; or whether the
subject matter of the law be considered as be-
longing concurrently to the State and to Con-
gress, but never having been exercised by the
latter, no conatitutionaT objection can be made
it. Although the law, as eet out in the ree-
ord, appears to have been recently passed
(11th February, 1824), yet a similar law has
been in force in that State for nearly forty
years (1 Rev. Laws of 1S0I, p- S.iG) ; and from
the references at the argument to the legisla-
tion of other States, especially Umsf burder-
ing on the Atlantic, similar laws exist in those
States. To pronounce all such laws unconsti-
tutional, would be productive of the most seri-
ous and alarming conaequences, and ought not
to be done 'unless demanded by the piSS
most clear and unquestioned construction of
the Constitution.
It has been argued at the bar that this law
violates certain treaties between the United
States and foreign nations, and the treaties
ith Brazil, Pruxxia and Austria (8 vol. Laws
S, SlU, ^4, MS) have been referred to aa
being in conflict with it. It would be a soffl-
eient answer to thb objection that the national
••T
IM
SunuBUK Vovn or tbi Uxitd BrAtu.
IIS7
chkrftctei' of tbe deTendaitt, or of the mastar or
vus«l, do not Appear upon the record t.e<
ptmying the eertiflckte, lo as to enable the c
to inquire whetber tbe law contlicta with any
treat)' atlpulation. But tbere ia nothing in the
law, so far at all events as it relates to the
present case, which is at all at variance with
any of the treaties referred to. These treaties
were entered into for the purpose of establish-
ing a reciprocity of commercial intercourse be-
tii'een the contracting parties, but gare no
privileges or exemptions to the citizens or sub-
{ects of the one country over those of the other,
tut in some of them, particularly in the treaty
with Braiil, it is expressly provided that the
citiiens and subjects of each of the contracting
parties shsll enjoy all tbe rights, privileges and
exemptions in navigation and commerce, which
native citizens or subjects do or shall enjoyj
submitting themselves to the taws, decrees, and
usages there established, to which native citi-
iens or subjects are subjected. And the other
treaties referred to have substantially the same
provision.
Whether the law of New Vorlc. so far aa It
applies to tbe case now l>efore the court, be
considered as a mere police regulation, and the
exercise of a power belonging exclusivelv to the
States; or whether it be considered as legislat-
ing on a subject falling within the power to
regulate commerce, but which etill remains dor-
mant, Congress not having exercised any power
eouHieting with the law in this respect, no
eoBstitutional objection can, in my judgment,
arise against it. I have chosen to consider this
questira under this double aspect, because I do
not And sa yet laid down by tnis court any cer-
tain and defined limits to the exercise of this
power to regulate commerce; or what shall b«
eonsidered commerce with foreign nations, and
what the regulations of domestic trade and
Cliee. And when it ia denied that a State
IT, in requiring a list of the passengers arriv-
ing in the port of New Yorlc from a foreign
country, to be reported to the police authority
of the city, is unconstitutional and void, be-
cause embraced within that power, I am at a
lots to say where its limits are to be found.
It becomes, therefore, a very important
ISS*] 'principle to establish that the States
retain the exercise of powers, which, although
Mr. Justice Story, dissenting.
The present caw comes before the court upon
a certificate of division of opinion of the judges
of tbe Circuit Court of the Southern District
of New Yorlc. Of course, according to the
well-known practice of this court and the man-
dates of the Taw, we can look only to the ques-
tion certified to us, and to it in the very form
in which it ia certified. In the Circuit Court
the following point wes presented on the part
of the defendant, vIe,: that the act of the Leg-
islature of the Slate of New York mentioned
in the plaintiff's declaration, assumes to regu-
late trade and commerce between the port of
Hew York and foreign ports, and ia uneonstt-
tvUoDftl and Told. And tliia point constitute*
■•■
the matter of division In the Clicnit Court, and
that upon which our opinion is now required.
The act of New York, here referred to, was
passed on the 11th of February, 1S24, and ta
entitled, "An Act concerning passengers in
vessels coming to the port of New York." By
the first section it requires tbe master of any
ship arriving at the port of New York from
an; country out of the United Slates, or from
any other of the United States than New York,
within twenty-four hours after the arrival to
make a report in writing, on oath or affirmation,
to the mayor of the city, etc., of the name.
place of birth, and last legal settlement, age and
occupation of every passenger brought in the
ship on her last voyage from any foreiijn coun-
try, or from any other of the United States to
the dty of New York, and of all psnsengers
landed, or suffered, or permitted to land at any
place during her last vojrage, or put on board,
or suffered, or permitted to go on board of any
other ship with an intention of proceeding to
the aaid city, under the penalty of seventy-flve
dollars for every paaaenger not so reported, to
be paid b; the master, owner, or consignee.
The second section makes it lawful for the
mayor, etc., to require every such master to
give l>ond, with two eufllripnt Mirctica, in a sum
not exceeding three imndred doUars for each
passenger, not being a citizen of the United
States, to indemnify and save harmless the
mayor, etc., and overseers of the poor from all
such passenger, eto., under a penalty of five
hundred dollars. The third section provides
that whenever any person brought in such ship,
and being a citir.cn of the United SUtes, shall
be by the mayor, etc., deemed likely to becomo
ciiargeable to the city, the master or owner
shall, upon an order for this purpose, remove.
every such person without delay to tbe pIae«of
his last settlement, and in default shall ba
chargeable with the expenses of the mainte-
nance and removal of such person. The fourth
section requires persons not citisens, entering
into the city with the intention of residing
pro
ing the penalties. The sixth section makes the
ship liable to attachment and seizure for the
penalties. The seventh section repeals former
acts; and the eighth and last section declare*
persons swearing, or aHirming falsely, in tha
premises, guilty of perjury, and punishable ae-
eordingly.
Such Is I
Such is the substance of the act. Tt Is ap-
parent that it applies to all vevst'ls comiitg from
foreign ports, and to all coasting vessels and
steamboats from other States, and to all for-
elenert, and to all citizens, who are passenmr*,
whether they come from foreign ports or from
other States. It applies, also, not only to pas-
sengers who arrive at New York, but to all
nassengers landed in other States, or put on
board of other vessels, although not within tha
territorial jurisdiction or limits of New York.
The questions then presented for our consid-
eration under these circumstances are, firat,
whether this act assumes to regulate trade and
commerce between the port of New York and
foreign porta. Second, if it does, whether it is
1SS7
Tbk Hatoi, etc., tm tax Cnr ot New Yobx t. Hum.
ih
■Monatltntfonal and void. The ooun«el for lb*
fikintiff KEscrt the negtitivt; the couohI for
he defendant maintain the affirmative on both
In conBiderinp the Drat point, we are spared
•Ten tie necassity of any definition or interpre-
tation of the wordi of the Constitution, by
which power ig ffiven to Congress "to regulate
commerce with foreign nations, and among the
MTeral States;" for the subjei-t was most elab-
oiately coniiitlered In Gibbons t. Ogden, 9
Wheat. IL 1. On that occasion. Mr. Chief Jus-
tice Uarshall, in deliTertng the opinion of the
ronrt, said: "Commerce undoubtedly ia traf-
flo; but it h aomething more. It is intercouraa.
It describes tlie commercial intercourse be-
tween nations, and parts of natinna, in all Ita
166*] branches, *and is regulated by prescrib-
ing rules for carrying on ths,t intercourse." 9
mieat. R. 189. And again, "these wordo com-
Erebend every spedes of commercial intercourse
etween the United States and foreign nations.
No sort of trade can be carried on between this
country and any other, to which this power
does not extend." B Wheat. R. 1S3, 1S4. "In
regulating commerce with foreign nations the
power of Congress does not stop at the juris-
dictional lines of the several States. It would
b* a very useless power if it could not pass
those lines." "If Congress has the power to
regulate it, that power must be exercised,
wherever the subject exists. If it exists within
tbe State, if a foreign voyage may commence
or tenninale at a port within a State, then the
power of Congress may be exercised within a
Stale." S Wheat. R. 185, "The power of Oon-
greaa, then, comprehends navisation within the
limita of every State in the Union, so far ki
that navigation may be connected with oom-
merce, with foreign nations, or among the
•eraral States." 9 Wheat. R. 197. And again,
"it is tbe power to regulate, that is, to pre-
•cribe tke rule, by which oommeree is gov-
Hiied." 9 Wheat. R. 190. But what is most
important to the point now under considera-
tion, it waa expressly decided io that case that
vesBcla engaged in carrying passengers were as
modi witmn the constitutional power of Con-
^rew to regulate commerce ai vessels engaged
!■ tha transportation of goods. "Vessels {said
the Chief Justice) have alwaya been amployed
to » greater or lea* extent In the transporta-
tion of paasengera, and bava never been sup-
poeed to be on that account withdrawn from
the control or protection of Congress. Packets
which ply along the coast aa well as those
which make voyage* bettveen Europe and
Amerieft, consider the transportation of pas-
•engiera as an Important part of their business.
\>t it has never been suspected that the gen-
eral laws ol navigation did not apply to them."
And again, "a coasting vessel employed in the
transportation of passengers is aa mneh a por-
tion of the American marine aa one employed
Ib the transportation of a cargo." 9 Wheat. R.
KI6, 216. And this language is the more Im-
preaaiva because the case then before the court
waa tbat of a steamboat, whose principal husi-
neaa was tha transportation of passengers. If,
tbis, the rwilation of pasaeuger ships be in
tiwth m regulation of trade and commerce. It
seems rery difficult to Mespe from the eondn-
■'•'i that the Mt la eontfonraj u^ In tto •«»•
n act which
of the nbjectio , _
late Iri'de and commerce between the port of
New V^rk and foreign ports. It requires a
•re"''rt, not only of pa.?8engera who sr- ["160
rive at New York, but of all wlio have been
landed at any places out of the territorial
limits of New York, whether in foreign ports
or in the ports of other States, It requires
bonds to be given by the master or owner for
all passengers not citizens, and it compels them
to remove, or pay the expenses of removal of
all passengers who are citizens and are
deemed likely to become chargrable to tbe city,
under severe penalties. If these enactments
had been contained in any act passed by Con-
gress, it would not have been doubted that they
were regulations of passenger ships engaged in
foreign commeree. Is their character clianged
by their being found in tbe laws of a State T
I admit. In the most u.-ihesitatiiiK manner,
that tbe States have a right to pass li<^atth laws
and quarantine laws and other police laws,
not contravening the laws of Congress rightful-
^ passed under their oonstitutiunai authority.
I admit that they have a right to pass poor
laws, and laws to prevent the introduction of
paupers Into the State, under the like qualiflca-
tione. I go farther, and admit that in the exer-
cise of their legitimate authority over any par-
ticular subject, the States msy generally use
the same means which are used by Congresa, if
these means are suitable to tho end. But I
cannot admit that the States have authority to
enact laws lihich act upon subjects beyond
their territorial limits, or within those limits,
and which trench upon the authority of Con-
gress in ita power to regulate commerce. U
waa said by Uiia court, in the case of Brown v.
The State of Maryland, 12 Wheat. 419, that
even the acknowledged power of taxation by
a State cannot be so exercised aa to interfere
with any regulation of commerce by Congress-
It has been argued that the act of New ¥ark
la not a regulation of commerce, but is a mere
Klice law upon the subject of paupers; and it
s been likened to the cases of health laws,
quarantine laws, ballast laws, gunpowder laws,
and others of a similar nature. The nature and
character of these laws were fully considered
and the true answer given to them in the ease
of Gibbons v. Ogden, 9 M'hcat. R. 1 ; and though
the reasoning there given might be expanded,
it cannot in its grounds and distinctions be
more pointedly Illustrated or better expounded.
I have already said that I admit the power of
tbe State to pass such laws, and to use the
proper means to effectuate the objects of them;
but it is with this reserve, that these means are
not exclusively vested in Congress. A State
cannot make a regulation of commerce to en-
force ita health laws, because it is a
'means withdrawn from its authority. r*167
It may be admitted that it ia a means adapted
to the end, but it is quite a different question
whether it be a means within the competency
of tbe SUtfl jurisdiction. The States have a
right to borrow money, and borrowing by tbe
issue of bills of credit would certainly be an
appropriate means i but we all know that the
emieston of hilts of credit hy a State is ex-
pressly prohibited by the Constitution. If tbe
Sarer to regulate commerce be exclusive In
ngrcaa, then there Is no difference between an
187
Scpunn CoimT or thx UifirBi Su.tvb.
isr
ezpreai and an Implied prohibition upon the
States.
But liow can it be truly said that the act of
New York is not a regulation ot cooimpreeT
No one can well doubt that if the same act had
been passed by Congreaa it would have been a
regulation of commercei and in that way, and'
in tliat only, would it be a constitutional act of
Congresa. The right of Congreas to pass auch
*D act has been express]? conceded at the ar-
gument. The act of New York purports on its
verj face to regulate the conduct of mastera, i
And owners, and passengers, in foreign trade,
And in foreign ports and places. Suppose the
act had required that tfae master and owner of
■hips should make report of all goods taken on
boud or landed in foreign ports, and of the
nature, qualities, and value of such goods-,
could there be a doubt that it would have been
a repilation of commercei If not, in what es-
aential respect does the requirement of a report
of the passengers taken or lauded in a foreign
port or place, differ from the case put! I pro-
IMB not to be able to see any. I listened with
great attention to the argument, to ascertain
apon what groiuid the act of New York was to
be maintained not to be a regulation of com-
merce. I confess that I waa unabie to ascertain
any, from the reasoning of either of the
learned coudBel who apoke for the plaintiff.
Their whole argument on this point seemed to
me to amount to this: that if it were a regula-
tion of commerce, still it might aley be deemed
a regulation of police, and a part of the sys-
tem of poor taws, and therefore justiBable as a
means to attain the end. In my judgment, for
the reasons already suggested, that is not a
i'ust consequence, or a legitimate deduction.
f the act IB a regulation of commerce, and
that subject belongs exclusively to Congress, it
Is a means cut oB from the range of State sov-
ereignty and State legislalion.
And this leads me more distinctly to the con-
■ideration of the other point in question, and
that Is, whether if the act of New York be a
regulation of commerce, it is void and uncon-
stitutional T If the power of Congress to
regulate commerce be au exciuiive power, or if
1118*] the 'subject matter has been constitu-
tionally regulated by Congress so as to exclude
all additional or conflicting legislation by the
States i then, and in either case, it is clear that
Uie act of New York is void and unconstitu-
tional. Let UB consider the question under
these aspects.
It has been argued that the power of Con-
gress to regulate commerce la not exclUBive, but
conr-^rrent with that ot the States. If this
were a new question in this court, wholly un-
touched by doctrine or decision, I should not
hesitate to go into a full examinatiou of all the
gmuDda upon which concurrent authority is at-
tempted to be maintained. But in point of fact,
the whols argument on this very question, as
presented by the learned counsel on the present
occasion, was presented by the learned counsel
who argued the cose of Gibbon* v. Ogden, 9
Wheaton B. 1, and it was then deliberarely ex-
amined and deemed Inadmissible by the court.
Mr. Chief Justice Marshall, with bis accustomed
accuracy and fullness of illustration, reviewed
at that time the whole grounds of the contro-
versy; and from that time to the present, the
question has been considered (as far as T know)
to be at rest. The power given to Congress to
regulate commerce with foreign nations and
among the Slates has been dci'med exclusive,
from the nature and objects of the power, and
the necessary implications growing out of Its
exercise. Full power to regulate a particular
subject implies the whole power, and leaves no
residuum; and a grant of the whole to one, is
incompatible with a grant to another of a parL
When a State procMdi to regulate commerce
with foreign nations, or among the States, it i*
doing the very thing which Congress is author-
ized to do. Gibbons v. Ogden, 9 Wheat. R. IBS,
199. And it has been remarked, with great
cogency and accuracy, that the regulation of a
subject indicates and designates the entire re-
sult; applying to those parts which remain as
they were, as well as to those which are al-
tered. It produces an uniform whole, which is
as much disturbed and deranged by changing
what the regulating power designs to leave un-
touched, as that upon which it has operated.
Gibbons T. Ogden, a Wheat. R. SOi).
This last suggestion is peculiarly important
in the present case, for Congress hoa, by the
Act of the 2d of March, ISIS, ch. 170, rt-gulated
passenger ships and vessels. Subject to the
regulations therein provided, passengers may
be brought into the United States frum foreign
ports. These regulations, being sU which Coa-
gresB have chosen to enact, amount, upon the
reasoning already slated, to a 'complete (*15*
exercise of its power over the whole sub^i-ct, a*
well in what is omitted as in what is provided
for. Unless, then, ws are prepared to say that
wherever Congress has legislated upon this sub-
ject, clearly within its constitutional authority,
and made all such regulations as in ita own
judgment and discretion were deemed expedi-
ent, the States may step in and supply all other
regulations which they may deem expedient, as
compiementuty to those of Congress, thus sub-
jecting all our trade, commerce and navigation,
and intercourse with foreign nations, to the
double operations of distinct and independent
sovereignties; it seems to me impossible to
maintain the doctrine that the States have a
concurrent juriadietion with Congress oa the
regulation of commerce, whether Congress lias
or has not legislated upon the subject; but a
Fortiori when it has legislated.
There is another consideration which ought
not to be overlooked in discussing this subjeet.
It is thst Congress, by its legislation, has in
fact authorized not only the transportation but
the introduction of passengers into the couatrj.
The act of New York imposes restraints and
burdens upon this right of transportation and
introduction. It goes even fartlier, and author-
izes the removal of posciengera under cerlaio
circumstances out of the State, and at the ex-
pense of the master and owner in whose shin
Ihey have been introduced; and this, thou^
they arc citizens of the United States, and
were brought from other States. Now, if thia
act be constitutional to this extent, it will ju*-
tify the Slates in regulating, controllins, aad,
in effect, interdicting the trans portatioa of
passenDcrs from one State to another in steani-
boats and packets. They may levy a tsi upon
all such passengers; they may require bonds
from the master that bo such pasBCngers shall
lur
TBI Uhtbd Statcs v. Oox.
became chargeable to the Btatej they may re-
Siire suL'h passcngere to give bonds that tbey
•II not become so chargeable; they may au-
thoriiK tbe iiDmediate removal of such pis-
iongen back to tbe place from which they
came. These would be most burdensome and
JnconTCnlent regulations respecting passengers,
■Dd would entirely defeat the object of Con-
gress in licensing the trade or buainess. And
yet, if the argument which we have beard be
well founded, it is a power strictly within the
authority of the States, and may be exerted
at the plessure of all or any of them, to the
ruin and perhaps annihilation of our passenj^r
navigation. It is no answer to the objection
to say that the States will Lave too much wis-
dom and prudence to exercise the authority to
ao great an uxtent. Laws were actually passed
of a retaliatory nature by the States of New
19Q*] Vork, New Jersey 'and Connecticut dur-
ing the iteamboat controversy, wliich threat-
caed the safety and security of the Union, and
demonstrated the necessity that the puwer to
regulate cottimei'ce among the States should be
exclusive in the Union, in order to prevent the
most injurious restraints upon it.
In the case of Brown v. The Stats of Mary-
land, 12 Wheat. H. 410, the Stale bad by an
act required that every importer of foreign
goods, selling the same by wholesale, should,
before he was authorized to sell the same, take
out a liceuEe for which he slion:d pay $50; and
in default, the importer wilh subjected to a pen-
alty. The question was whether the State Leg-
islature could constitutionally require the im-
porter of foreign goods to take out such a li-
cense, before he should be peii:iittcd to sell tbe
•ame in the imported package? The court held
that the act was unconstitutional and void, as
laying a duty on imports, and also as inter-
fering with the power of Congress to regulate
commetce. On that occasion argumentH were
addressed to the court on behalf of the State
of Maryland, by their learned counsel, similar
to those which have been addressed to us on
the present occasion; and in a particular man-
ner the arguments that the act did not reaoh
tbe property until after its arrival within the
territorial limits of the State; that it did not
obatnict tbe importation, but only tbe sale of
goods after the importation. The court said:
"There is no difference, in effect, between tbe
power to prohibit the sale of an article and the
power to prohibit its introduction into the
country. The one would be a necessary conse-
quence of the other. None would be imported
if none could be sold." "It is obvious that the
same power which imposes a light duty, can
i(npo*e a heavy one, which amounts to a pro-
hibition. Questions of power do not depend on
the degree to which it may be exercised. If it
may be exercised at all, it must be exercised at
the will of those in whose hands it Is placed."
**rhe power claitaed by the State is, in its na-
ture, in conflict with that given to Congreu (to
regulate commerce) ; and the greater or leas ex-
tent to which it may be exercised does not en-
ter into the inquiry concerning its existence."
"Aay charge on the introduction and ineorpora-
tioa of the articles into and with the mass of
property in the country, must be hostile to the
power given to Congrea* to regulate commerce;
•inc« an CHential part of that regulation and
• 14. ««.
principal object of it li to prescribe the regnlai
means of accompIishiDg that introduction and
This whole reasoning is directly applicable to
the present casej if 'instead of the Ian- ["ICl
guagH respecting the introduction and importa-
tion of goods we merely substitute the
words respecLing the introduction and importa-
tion of passengers, we shall instantly perceive
! its full purpose and eCect. The result of the
I whole reasoning is that whatever reatrains or
{ prevents the introduction or importation of
; passengers or goods into the countrj- authoriied
and allowed by Congreaa, whether in the shape
of a tax or other charge, or whether before or
after their arrival in port, interferes with the
exclusive right of Congress to regulate corn-
York is unconntitutional and void. In this
opinion I have the consolation to know that I
hod the entire concurrence, upon the same
grounds, of that great constitutional jurist, the
Ute Mr. Chief Justice ilarahall. Having hcaJ'd
the former arguments, his deliberate opintoo
was that the act of New York was unconstitu-
tional, and that tbe present case fell directly
within the principles eatabllaheil in the case of
Gibbons v. Ogden, 9 Wheat. R. 1, and Brown v.
The StaU of Maryland, 12 Wheat. B. 419.
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United States for the Southern District of
New York, and on the question and point on
which the judges of the said Circuit Court were
opposed in opinion, and which was certified to
this court tor its opinion, agreeably to the act
of CungrcsB in such case made and provided,
and was argued by counsel; on consideration
whereof, it is the opinion of this court that so
much of the section of the act of tbe Legisla-
ture of New York as applies to tbe breaches
assigned in the declaration, does not assume
to regulate commerce between the port of New
York and foreign ports, and tliut so much of
said section is constitutional. Whereupon, it
is now here ordered and ad.udged by this court
that it be so certified to tbe said Circuit Court.
•THE UNITED STATES. Appellant!. [•I8»
NATHANIEL COX.
No appeal 1l» from the decree ot a district Jndn
at tbe UnltMl Slates oo n n,.tl!loa pivaent«d by the
defendSDt DOdrr tbe k.^..uud ■ectlon of tbe "Act
pravldlns tor tbe better organtialloD of tbe Treas-
ury Driiarlment," wbere an order bad IssumI by
tbe sottcttor of tbe treasury to tbe marsbal of Ibe
United Slates, and tbe property of ao alteged deM-
to'be sold fo sad'afy tbi' ailepcd *l)t._
n> so sppesl was taken
f Circuit Court, and as
■ fiupreme Court; and
to the So pre me Court.
SuniEMK COUBT OF TKI UHIXBD StATBS.
•Dd coDflrmnI,
0 nt dlKtrli't Jiidgf I
■pecldJ JurladlctloD. whlcti b> ma
dlMciBtlon R-Hle boldttLK the Ulslnci i.ourc or ai
»nr ottirr time. Ordlnaill;. aa dlatrlcl Jiidgv, bt
"-■ ■- ■ - ied bj tSe rulea of ch«r
'. which
opplj tl
i<^«pt »
APPEAL from the District Court of the
United States for the Eaatern District of
Louisiana.
On the 18th of September, 1833, Cox, the
defendant in error, applied, by petition, to the
judge of tiie District Court of the United
States for the Eaatern District of Louisiana, for
an injunction to forbid all further proceedings
on a warrant, then in the hsndi of the marshal,
issued by the solicitor of the treasury, under
tlie Act of tlie IGtb of May, 1830, and by which
the marshal was directed to levy and collect
the lum of $4,I63.S0, then appealing to be due
from said Cox, as a receiver of public moneys
«t New Orleans, to the United State*. The pe-
titioner alleged that be was not indebted to the
United StaUs, but that the; were Indebted to
him in certain amounte which should he Bet-off
or compensated, against the balance claimed
under the warrant; and which being allowed,
would leave a balance due him from the Unit-
ed States of M,610.37. He therefore prayed
that an injunction might be granted; that the
amount claimed by the warrant be declared
satisfied and compensated i that the cause be
tried by a jury; and that he have all other and
further relief to which he mHy be entitled.
193*] 'Security being given, the injunction
was issued as prayed for; a citation was issued
to the niarshal, and on afndavit of Cox, the
cause was continued until the 6th of March,
1S35, when the court ordered the district at-
torney to show cause, on the first day of the
next term, why the facts arising in the case
should not be tried by a jury. This rule hav-
ing been argued, was subsequently made ab-
solute by the court; and it was referred to a
jury to settle whether Nathaniel Cox be en-
titled to the credits claimed in his petition or
any of them.
On the Dth of January, 1B36, the cause was
tried by a jury who found that Cox was not
indebUd to tne United States; but that on the
contrary, the United States were indebted to
him in the sum of 21,559.64. The court there-
upon made the injunction perpetual, and certi-
Hed that the United SUtes are indebted to the
ittid Nathaniel Cox in tbe sum of 11,550.34.
The United States, on the trial, took three
several exceptions:
1. Before the jury were alt sworn, the dis-
trict attorney objected to the swearing of the
jurT at all; that the case waa one of chancery
jurisdiction; that no issue had been directed by
the court to ascertain any particular fact; and
thai if the cause were submitted to the jury
under the rule of the flth of March, 1835, the
entire cause should l>e submitted as one of com-
mon law jurisdiction. The objections were
overruled, and the jury sworn as usual in com-
2. The defendant claimed to bp credited with
the amount of certain orders, bills, and checks,
issued by one Wilkinson, a purser In the Navy,
held by the defendant Cox, aod spedfled in the
•73
document exhibited and stated In the record;
to which the district attorney objected, and
prayed the court to instruct the jury that the
defendant, a* navy agent, was not authorized
by law to pay the sums specified in the Bevenl
against any sum due from liiu
ouchers, nor to buy such vouchers, and
Z.
to the United States. The court refused this
instruction, but charged the jury that in point
of strict law, the vouchers relied on could not
be received i but if they should be of opinion
that they presented equitable set-offs, they
might allow them.
3. The defendant offered in evidence a cer-
tain schedule, and certain vouchers, in order to
establish an offset of 11,433.12; and to show
that the vouchers had been disallowed at the
treasury before the commencement of tbe suit,
introduced certain depositions, to the introdne-
tion of which the district attorney objected, ob
the ground that said depositions are not legal
or sufUcient proof of the 'presentation [*1(4
to, or disallowing of said documents by the
proper accounting oflicer of the treasury. The
' -.led the objection, and the doen- i
ney-Genera], for the United States. No o
sel appeared for the appellee. r
Mr. Butler insisted t^iat this court has juris-
diction of the case; that the decisions of the
court below on the points presented were erro-
neous, and that the decree or judgment should
be revised.
As to the jurisdiction of the court:
A case similar to this was brought befoc*
this court at January Term, 1633, by appeal
The United States v. Nourse, 6 Peters, 270.
That ease shows that no appeal can be taken
from tbe decision of tbe district .udge, lo a cms
of a proceeding by a distress warrant issued by
order of the Treasury Department, under th* ,
second section of the Act of Congress pasaed
.May 5th, 1S20, entitled "An Act for the bet-
ter organization of the Treasury Department. '
The decision of tbe court in that ease doet not
entirely dispose of the case now before ths
In the ease of Nourae, the oroceeding was
tiefore the district judge, and the whole qnrs-
tion wan disposed of by him, and was within
his jurisdiction. In this case, although the ap-
plication was made to the district judge of Lou-
isiana, he has the jurisdiction of a circuit court
of the United States. One of the arguments
in that case waa that it was a proceeding of
chancery jurisdiction, and this court said Ihal
no provision is made for an appeal from llie
district judge to the Circuit Court in auph a
case. Rut appeals are given from the District
Court acting as a circuit court; and apprali in
chancery or equity cases are authorixeil by the
laws establishing the court. This was a ci>e
of chancery jurtsdiction. At the time it *t*
heard by the district judge, it waa believed by
him that he had no chancery powers, and h*
therefore sent the case to a jury. The terotf
of the law under which the district judge acted,
show that the case is one of chancery procwd-
ings. A court of equity may refer questiou
of fact to a Jury f asaUt the eon«:>«Dos of 0»
judf{«.
■ Il*
IfBBJDk V. Thb Lnan or Boky.
I«6*J *Ah to the other point* in tlie cbm,
the Attorner- General referred to 9 Peters, 1T2|
The United ^tatea t. Hawkins, 10 Peten, 126.
If the court conies to the decision that the
proceedings before the diatrict judge are not
eunclusive, a rule ii aaked for a mandamui to
the diatrict judge to vacate the rule referring
the case to a jurj, and that he proceed to
adjudge the ca3& The duC7 U ipecially im-
[Hjsed on the district judge.
The mandamtu may issue under the provi-
sions of the 60th section of the JudiciarV Act
of 1789, 2 Uws U. S. 82. In the case of Wil-
son's Ueir, 8 Peters, 291, all the cases of man-
damus were examined.
Hr. Justice H'Lean delivered the optnton of
the court 1
Tliis case la brought before this court bj
writ of error from the District Court for the
Eastern District of Louisiana.
The defendant, Nathaniel Coi, represented
by petition to the district judge that by virtue
oi an order issued by tlie soiicitor cl the treas-
ury to the marslial, his property hsd t>een
seized and was about to be soid to satisfy a
balance exceeding $4,000, claimed to l>e due
10 the government fiom the petitioner, as late
receiver of public moneys. And the petitioner
represented that he was not indebted to the
government. Ad injunction was allowed by the
judge, on security being given.
After various steps were taken, some of
which were clearly irregular, a final decree was
entered, which made the injunction perpetual.
Exceptions In the course of the proceedings,
were taken by the counsel for the government;
and the points thus raised are attempted to be
brought before the court by writ of error.
The treasury order or warrant stated in the
petition, was issued under the second section of
Ibe "Act providing for the better organization
of the Treasury Department," passed the 15th
da; of May, 1820. The injunction was allowed
under the fourth section of that act. The fifth
section provides that the injunction may be
allowed or dissolved by the judge, either in or
oat of court; and in the ninth section it is pi
vided if the district judge shall refuse to grant
the injunction, or shall dissolve it, after il has
been allowed an appeal in behalf of the party
aggrieved may be allowed hy a judge of the
Supreme Court.
The caee of The United States v. Nourae, 8
Petera, 470, was Tery similar to the one under
consideration. In that case, after a full invest!-
tec*} gation, 'this court decided that no ap-
peal by the government was authorised by the
act, that the general law giving appeals did
not embrace the case.
It la suggested that some distinction may be
dr«wn between the two cases. That in the case
of Nonne the proceeding was first had before
l..i dlatriet juage, from whose decree an ap-
peal was taken to the Circuit Court, where
the decree of the district Judge was affirmed,
and from which affirmance an appeal was made
to tfaia eourt. That in the case under exami-
nation an appeal 1* tftfcen from the daoree of
thtt distrtet Judga.
t It. •«.
a special jurisdiction, which he may e
his discretion: while holding the district court,
or at any other time. Ordinarily, as district
judge, he ban no chancery powers; hut in pro-
ceedings under this statute he is governed by
the ^ - ' ■ ,.,..,._ .....__
by the government.
As no appeal is given to the government In
the statute, bf writ of error or otherwise,
either to the Circuit or the Supreme Court, the
decree of the district judge in favor of the de-
fendsnt must be held Hnal.
We think the general law allowing appeal*
cannot be so construed as to enable this court,
by appeal or writ of error, to revise the pro-
ceedings of the district judge under this stat-
ute. The views of this court in the case of
Nourse apply to this case, and it is unneces-
sary to repeat them.
The case must be dismissed for want of Juris-
diction.
On appeal from the District Court of the
United States for the Eastern District of I^ui-
slana. This cause came on to be liesrd on tlie
transcript of the record from the District Court
□f the United SUtes for the Eastern DUtrict of
Louisiana, and was argued by counsel; on con-
sideration whereof, it is now here ordered, ad-
judged and decreed by this court, that this ap-
peal be, and the same is hereby dismissed for
the want of jurisdiction.
■JAMES M'BRIDE, Plaintiff fat Error, ('IIT
THE LESSEE OF WILUAM HOBV.
tlon was raised or dec
thr TiJjdlly or coast
upon tbs ■
orlty eierciSfll u
Sress. nor upon
ut on a Bute li
I If error to the Supreme Court of the Wett'
em District of the State of Peansylvsnia.
An action of ejectment was instituted by the
lessee of William Hocy against James KrSride,
the tenant of William Clarke, In the Common
Pleas of Uercer County, to recover a tract of
land in that county. The plaintiff obtained a
verdict, and judgment on the same was ren-
dered by the court, and the case was carried by
writ of error to the Supreme Court of the
Western District of Pennsylvania, where the
judgment was affirmed.
To that court, as the highest court of law of
the State, this writ of error was prosecuted,
under the provisions of the twenty-fifth section
of the Judiciary Act of September, 1780; the
plaintiff in error claiming the exercise of the
jurisdiction of this court, on the allegation that
NoTl. — That State decisions Eovern Dntted
L. *d. D. a 400.
«t
Sdpbbhx Coust or the Uitnto Suns.
UlT
ui kct of CottgTMB has b«en miacoDstnud b;
the Supreme Court of Fennaj'lvaniB.
Tbe plaintiff in the ejectment, in the Common
PlcKS of Mercer County, exhibited », reguUr
title derived under tha laws of the StiiU of
Pennsylvania, subjecting unseated or unoccu-
pied lands to aale for taxes left unpaid b; tbe
owner of the land. These laws give to the
owners of such lends ft right to redeem them
within two years after the sale, by payment or
tender to the county treasurer of the taxet for
wiiidi the lands were sold, with tweiity-Qve
per cent, in addition. In the courts of I'enn-
E/lvania conslruing the laws of tliat State, it
luu been decided that no one but the owner of
the land or his agent can be permitted to re'
deem lands so aold.
The defendant in the ejectment, as the tenant
1 ' William Clarke, alleged a redemption of the
lands by a tender of the amount of the taxes,
with the addition of twenty-five per cent.; and
1«8*] claimed *that William Clarke, who had
made the tender, was the owner of the land,
under the following circumstances:
The same tract of land had, he alleged, been
sold tor taxes due to the United States under
tbe authority of the acts of Congress laying
direct taxes, and had been purchased b^ Mr.
Garke at the sale made under the authority of
these acts.
The defendant offered in evidence a deed,
direct taxes, aaid to be for tbe tract of land in
controversy. This deed was admitted as prima
facie evidence of the matters stated in it. The
plaintiff in tbe ejectment then proceeded to
frove, and did prove, that the tract of land al-
!ged to be conveyed by the deed had oeverbeen
legally assessed for the United States direct
taxes, and that the asseaimenta were void.
This evidence completely invalidated the deed
from the United States collector to Mr. Clarke;
and this effect of the evidence was not contro-
verted by the defendant. He, however, con-
tended that being in possession, and having the
deed from the designated collector of the Unit-
ed States direct taxes, he had such sufTit'lent
prima facie evidence of a title to the land as to
authorize him to redeem the same from the tax
sale made under the laws of Pennsylvania.
The Court of Common Pleas instructed tbe
Jury that "the plaintiff, William Hoey, having
shown that he has purchased this tract of land
according to law, at a treasurer's sale, and the
plaintiff having shown that defendant's deed is
illegal for want of authority in the United
States collector to make such sale, we instruct
the jury that the defendant has no right to in-
terfere to defeat a regular and legal sale by the
treasurer of the county to William Hoey. An
Invalid title cannot defeat a good, legal, and
valid title."
The counsel for defendant in err<H' moved to
dismiss the writ of error for a want of juris-
diction in this court to entertain tbe same.
Tbe plaintiff in error had submitted the fol-
lowing points for the consideration of the court:
lat. That, whatever be the intrinsic merits or
defects of Hr. Clarke's title, as derived from
tbe authority and laws of the United States;
and whether tbe officers of the United States
bad, in the detail of their operations, prelimi-
•14
nary to the eoUwtor'a sale, strictly followed
the directions *of the acts of Congress l*l(t
or not, be had, prima facie, such a title and
interest, derived from tbe authority and laws
of the United States, as qualified him to be
recognized by the county treasurer as the per-
son properly representing the proprietary inter-
est in tbe land, until tbe nullity of his titli
should have been judicially ascertained uid
adjudged in some course of judicial procedure,
directly drawing the validity of his title la
question; that so long as the only person en-
titled to dispute his right acquiesced in it, or
forbore to set up any adversary claim, he wai
entitled to be treated by all third persons si
the true owner; that how defective soever bis
title as against the original proprietor, be bad
nevertheless acquired an actual mtercst in tbt
property which he had a right to protect by
discharging the taxes imposed on it by the lairi
of the State; and further, that though he may
have come into tbe title by wrong, yet being
in, he was privy in estate to the original pro-
prietor, and so entitled, and perhaps lesaliy or
morally bound to protect the inlcvEsts i>f both
against forfeiture or alienation foi lejjul de-
faults.
2. That in every view of his claim or title to
the property, of the incidoiiUl in1pic.-=ts and
rights appertaining to it, and nf the re!.i:*ont
in which those interests and rights p)ac;'d him
to the county treasurer, the »'hole rtstt'd upoa
the construction and effect of statutes of the
United States, and upon the validity of an au-
thority exercised under the United Slates; all
which matters are drawn in question in the
judgment pronounced by tbe Supreme Court of
Pennsylvania, and decided against the validity
of such authority, and against the title, right
and privilege claimed by tbe defendant in tbe
original action under such statutps and author-
ity: therefore, such judgment may he properly
re-examined in this court, under the authority
of the 26th section of the Judiciary Act afon-
.^tr. Peters, and Mr. Pearaon, for tbe molioD.
This is not a case for the Jurisdiction of this
court. The whole question decided in ths
Common Picas of Mercer County was una
which did not involve, in any manner, the con-
struction of an act of Congress, or a proviskia
of the Constitution of the United State*. The
Supreme Court of Pennsylvania, in afGnning
the Judgment of the Common Pleas, did no
more than had been done by the inferior court.
The decision of the courts of Pennsylvania is
that the defendant in the ejectment, tbe plain-
tiff in error in this court, hod no regular (ill*
•which could interfere with the plain. ["ITO
tip's regular title, derived under the laws d
the State. The title of the defendant was a
deed which he himself admitted to be invalid.
He relied only on the primn fade operation o'.
a vo:d deed, shown to be void by testimony. and
acknowledged to be so by him. He asserted
that although such was the character of tbs
deed, it gave biui a right to redeem the land;
and because the court thought differently, th*
case is brought up to this court, on tbe ground
(hat an act of Congress baa been misconstrued.
In stating this claim of jurisdiction, its insuffi-
ciency Is fully shown.
Tbe only qucation before the courts of Pean-
Petva tU
ITBbidc t. Thi LnsB or Hon.
m
■rivania waa npon the rt^ht of William Clarke
to T«d«ero the land, holding an admitlri void
deed. This was a queslion far the courts of
Pannaflvania, and for thoee courts onlj, be-
tween citizens of that State.
Had either of the partieE been citizens of an-
other State, other questions might have been
presented. The ccnstruction of the tai tawa,
•nd ai in the case of The Lessee of Wolcott t.
Hepburn, in 10 Petero's Rep. the construction
would have been examined.
The principles which regulate thia question
of jurisdiction were derided at the last court in
Crowell V. Randel!, 10 Peters, 308. In that case
the court reviewed at large all the previous de-
cisions of the court on questions of a similar
cfiaracter with this now for consideration.
The decision of this case, when before the
Supreme Court of Pennsylvania, is reported in
2 Watts' Reports, 436. The construction of
an act of Congress, as is fully shown by the re-
port of that case, woa nowhere drawn in ques-
tion. This is necessar}' to give jurisdiction on
ft writ of error from this court to a State
court. It must appear that an act of Congress
hks been drawn in question, and has been mis-
construed. Until the case was brought into
this court, the plaintiff in error had not in-
voked the aid of any act of Congress, nor had
he called on either the Court of Common Pleas
or the Supreme Court of Pennsylvania to give
a eonfltruction to any such act. It was treated
as a Penniylvania question, arising under the
Pennsylvania tax statutes, and it was decided
■ccording to the decisions of the Pennsylvania
courts, on the construction of those laws.
Mr. Anthony opposed the motion. He con-
tended that the ptaintifT in error derived his
title under an act of Congrpss. The tax sale
was mnde under a law of the United States.
Having a prima facie title by his deed, he had
ft right to redeem; and by the refusal of the
ITl') *court to give this value to the deed,
the I'nited States law was violated, or set at
naught. The object was to show that with this
deed and possession of the land, he should have
be^n allowed to redeem the land from the tax
■ftle under which William Hoey claimed. A
mere possession of lands f^ves a right to re-
deem. 6 Cranch. £49; T Wheat. 69.
' The courts of Pennsylvania having decided
that the plaintiff in error, having this deed, liad
not a right to redeem, does not this present a
Zueation within the jurisdiction of this court,
aiding tinder a deed executed under a law of
the United States? The construction of this
title under the law, cornea into queation; not
whether the plaintiff in error had a right to
hold the land, but whether he had not a right
to redeem it. A person having a color of title
EDAy redeem. The effect or the deed was
brought before the oourt, and this places the
e*ae within the rules of this court aa to the
ftrovisions of the Z6th section of the Judiciary
Act of 1789. Cited, 1 Wheat. 3M, 357; 6
Cnnch, SSS; S Wheat. 208; cited, also, 6
Smith'a Lawi of Pennaylrania, 301.
Ur. Chief Justice Taney doUvered the opinion
of the court:
This case comes befors the court on a writ of
error directed to the judge* of the Biiprema
Court of Pennsylvania for the Western IMstricL
• I*. «d.
The material facts In the ease may be stated
in a fen words: William Hoey, the defendant
in error, brought an action of ej<M?tnient in tha
Court of Common Pleas of Mercer County for*
the land in question, claiming under a deed
from Aaron Hakney, treasurer of the county,
upon ft sale made for taxes due on the said land
to the State of Peanaylvania. This deed is
dated October 14, 1S28. The defendant offered
in evidence a deed to him from Theophilus T.
Ware, collector of the United States direct
taxes for the tOth collection district of the
State of Pennsylvania, dated Jul; 3, 1821;
and also offered evidence that on the tOtli of
June, 1624, be had paid to the treasurer of the
county the taxes due on the land to the State,
and for which it had been sold, as above stated,
in order to redeem it.
It appears from tbs exception that the de-
fendant admitted that the sale made by the
United States collector was not warranted by
the act of Congress, and that the deed waa in-
valid. But although the deed was inoperative,
and did not convey the title to him, yet aa he
IT as in posaeKsion under this deed, claiming
title, and the deed upon "the face of it [*lTa
purported to convey the land to him, he meiat-
ed that the deed, coupled with the possession
under It, waa sufficient evidence of title to
authorise him to redeem the land within the
time limited for redemption by the laws of
Pennsylvania, after a sale for State taxes;
and that having paid the taxes within that
time, the title of the lessor under his deed waa
defeated.
The Court of Common Pleas gave judgment
In favor of the plaintiff, and the case being re-
moved by writ of error to the Supreme Court
of Pennsylvania for the Western District, the
judgment of the Court of Common Pleas waa
there affirmed.
The statement of the ease shows that the
[jucation upon which the case turned, and which
was decided by the Supreme Court, depended
entirely upon the laws of Pennsylvania, and
not upon the act of Congress. The question
brought before (he State court, and there de-
cided against the plaintiff in error, waa this:
Is a person in possession of land in Pennsyl-
vania, cini.iing title to it, under a deed, which
upon the face of it appears to be a good one,
but whi^ is inoperative and invalid, entitled to
redeem tht land after it has been sold for taxes
due to the State, so aa to defeat the title of tha
purchaser under the State lawf It Is evident
that such a question must depend altogether
upon the laws of the State, and not upon any
law of the United States, The exception
states that the plaintiff in error admitted that
the sale and conveyance made by tha United
States collector was not warranted by the act
of Congress, and that his deed was invalid. No
question was raised or decided by the court up-
on the validity or construction of the act of
Congress, nor upon the authority exercised un-
der it. The only question raised or decided in
the State court was the one above stated; and
upon such ft question, depending altogether
upon the State laws, this court have no power
to revise the decision of the State court, in
this form of proceeding.
The writ of error must therefore be dia-
8TS
in
Sui-BKiac Ooinn or me Uiotid Sunt.
Oa eotialdentlon of the motion made In this
ckUBB yesLerdaj, and of the ■.rguments of coun-
m) thereupon had, aa well in support of, as
against the motion; it Is now here considered,
vnlered and adjudged by this court, that this
writ of error to the Supreme Court of Pennsyl-
vania for the Western District be, and the same
!■ herebf diimiased for the want of jurisdic-
tion.
AppUcatton for mandamus directing Dlatrlet
Judge to show cause why execution should
not issue, refused, prima facia oauaa Bot
being ahowo.
UandaionB. Uotlon for a rnTe od the aiitrlet
SdE» ot thB District Coort of the (Jolted Stula tor
.( Missouri District, to show laosf wtj s manda-
hlm to ord«r sn execution to Issue op a Judsmeni
ter-General of ibe United Ststes i. Bectoi-s Ad-
(he District Court, bj which It sppesred tliat the
district judge, an s mntlOQ ot tbe district alloincf
or the iJnr-' '■--'-- ■ '-- • .-....—
i^J.u'
icleul
leiiBon (or the
b%
vprruIluE (he w
tlon ; sn
t 1> Dotblng In
rd
a prims
fade
SlOD Of
duty
DD the part of
the Dl
te of facts, the
court a
to
preaami
ererrtlilnit wis
rlirhfiT
dou
tl."
court, u
me evidence la
offpred
• nw
contrar;
": anj
tbej cannot, n
on the
evldean-
be-
here Is
■Q)
er
uud
(or Its '
,. „ a rule upon the Jedf'e .,
eiplalD hia conduct; and Implies thst a esse hsd
been msde out wblcb nialies It proper that tbts
court should know the reaionH tor his i)<-ciBlon.
When the record does oot show mistake, miscon-
duct, or omission of dutv on the part of the i-ourt.
I fade case I<
MR. BUTLER, Attorney -General, moved the
court for a rule on the district jud^ of the
United States for the District of :t1itE<oiiri, to
■how cause why a writ of mandfinmd nhould
not tie issued, eomniandini; him to order an ex-
MUtion to issue on the judgment of the said
District Cuurt in this eaae.
L 20> ; Bft L. ad. U. H.
A motion has been made in this case by tbs
Attorney -General of the United State* for a
rule on the judge of the District Court of the
United SUtes for the Missouri DUtrirt, to
show cause why a mandamus should not lasaa
from this court, commanding him to order ad
execution to issue on the judgment entered !■
that court in the case of The Postma>t«r-
General v. Trigg, Administrator, etc.
The motion is founded upon an attested eopj
of the record of the proceeilings in the District
Court, by which it appears that at September
■Term, 1834, the Post master -General pI34
recovered in the said court a judgment against
the above-named defendant for the sum of
11.595,33, the damages assessed by the jury
and costs of suit. That at March Term, 1S35,
the attorney of the United States moved the
court to order the clerli to issue a fieri farias
on this judgment, against the goods and chat-
tels, lands sj)d tenements of the said Elias
Rector, deceased. In the hands of the said ad-
ministrator, to bt administered. At September
Term, 1S35, the court decided upon this motion i
and ttie record states that "after mature de-
lit>eration tliercupon liad," the court overruled
the motion. Tliis is the only evidence filed here
by tlie Attorney -General in support of the
motion for a rule to show cause why a mui-
dnmus should not issue.
The court have loolied into the practice of
this court utran motions of this sort, and it
does not apiicar to have been satisfactorily
settlech and we have therefore thought it a
at occasion, when the court is full, to deliber-
ate on the subject, am! to sta,te the principles
by which the court will be guided.
The District Court, upon which the rule is
proposed to be laid, is a court of record, and
the proceedings in the case before us appear to
have been coiidui'lcd in regular fcrm, and the
diTisioo which has given rise to this mution,
lu have been made after mature deli he rat ion.
r'or anything thst appears before us, there
may liave been suHieient rrnson for this deci-
sion; and there is nolhing in the record to
create a prima facie esse ot mistake, mia-
eondurt, or omission of duty on the part of the
District Court. In such a state of facta, wt
(liiiik that we are bound to presume that
everything was ri^hlfiilly done by the couit,
until some evidenec is (ilfered to show tbe con-
trary; and cannot, upon the proof before ua.
assume that thpre is any ground for Ihc inter-
position of this court. A rule to show cau^e i)
a call upon the .udge to explain his conduct,
and implies that a esse hud been made out
which makes it proper that this court should
know the reasons for his decision. We think
Ihat in a case like this such a rule ought nnl
lo be granted, where the record does not show
mistake, misconduct, or omission of duty on
the part of the court, unler" such a prima facie
eanc to the contrary is msde nut, supported bj
HfTdsvit, as would make it the duty of tbis
i-oiirl to interpose. '
The rule is therefore refu.ed: and it maT Iw
proper, in order to seltle the practice in Cftaw
of this description, to state tb«< tbe oourt
unanimously concur in this opinion.
Tm 8TU1ID0AT OBUtAns j. Prckbvb.
ITI
!«•] •THE STEAMBOAT ORLEANS. Henry
Fonfth «t •!., CUiinaiits, Appel-
linta.
TH0M.4S PHOSBUa
Juritdictioii of court of adinlraltj,
AdmlnllT. It li Terr Irregulftr, and KBalni
The a
■ cmM ot mirltlmc i
Tbe Jurlidlctloa of court* of ftdmlnltr In ni
•f part owner* lurlDB iiaciiuil Interots and ihnr
U Dot. and oerer bag li«cii, anplled to direct ■ si
npon aoj dispute b«ln een them ■> to the trade a
iia*ICBtloti of tbc ahln engaged In mnrltlnie vi
V. properlT to called. The majority of Ihe ov
•ra bare a rigbt to empio]' Ihe sblp on aiicb vi
asea aa tbpy piraae. eItIdr a allpnlalloa Id the d
aeotlDg owners for Ibe aate retuin of tbc ahl
If tbe lattn, upon a proper lilAel flied In tbi? i
miraltr, require It; and (be mlborltr of tbe on
era ma; employ the sblp In llkp mauniii-. It 1
matorlty decline to employ brr at all.
Tbe admlraJty bni no Jurisdiction OTCr a Tea'
not engaged [n mailtlme li-^ide uud nnv<Kaili
tboDRh on ber royace sbe may bsvn touched nl o
termlnua of tbem In tldi;-water. ber employ me
havlnn been (ubBtRDIIally ou otbor w»i".- ■■
mie leat of lla lurlsdlrflon In nil «
aurt, Is, whether tbe lesael la eng.nged,
It, In maritime naTl^atMn. or in Interior
tlao and trade, not an Itde-watera.
The Jiirladicllon ot courla of ndmlralty la
• ot ihla
»tlers or c
] tbOBe
Which a
The mae ot Tbe Steambont JefTer......
.__ .„. ■ ~ ,, ITS. citpd and a
I, 426 : e Con
,10 Wbea-
dj the
tbe ahlp even jor mamime vagea.
The caae of I'eyruui T. Howard at ■!. 1 Petert,
The Incnl laws of a State can neTer couTer lurla-
dlctfon on tbe ooorCs of tbe United Rratfs. 7'hpy
can only foralRb rDlea to aseerlain Ihe rlebts ot
Ifcc partlea. and tbui essiiit in Ihe adinlnlEtratlon
Bf the proper remriiii 5 whtre the Jurisdiction U
vested by tte lawa of the United Stalea.
AN kppeal from the District Court of the
United States for East Louisiana.
ThomaB Phsbua, who is the owner of one
aixth p»rt of the atpamboat Orleana. on the
30th of November, 183a, nied n libel in t)<>
District Court of the United States for the Di
the port of New Orlenns, where the tide ebba
and flows, and withtn the admirftlty juriadic-
(ion of the court; therefore, he prayed that the
boat might be aolti, and one sixth part of the
procepda paid to him. and tlirt the other own-
era might account to liim for the ettrntnga of
the l>oat to the day of sale.
Tbe appcltanta filed their claim, denying the
jurisdiction of the court over the subject mat-
ler of the libel, and dcoyinc that aaid boat
navigated water where the tide ebbs and flowa,
nnd allepng that she navigated only between
New Orlraiis and the interior towns on the
MiiiBiBaippi and ita tributary waters; that she
ia not a maritime boat, and was never Intend-
ed to navigate tlie high aeaa; and if the court
should be of opinion it bad jurisdiction, then
Ihey deny the merits of the case. At the sams
time one of the crew of the boat, while abe wu
in possession of PhiEbus flled a iibel against her
for wages. In that suit Pbiebus flled a claim
against the boat for wages aa master, and tor
-ecesesricB advanced by him for the boat while
s acted in that capacity. These charges he
■a permitted, by agreement of parties, to
-ansler to his own suit, aa though the; had
ladc a part of tbe case stated in his libel.
On the ISth of April, 183B, the District Court
indered a final decree, which directed a pub-
lic sale of the boat; that tha libelant, Thomas
Pboibus, should receive one sixth of tbe pro-
ceeds; a year's wages at flfteen hundred dollars
and the further sum of three hundred
and forty -five dollars and sixty cents, for
^cessaries furnished by him, with costs of suiL
The claimants appealed to this court.
The case woa argued by Mr. Vinton and Mr.
Crittenden for the appellants, and by Mr.
Catron for the appellee.
For the appellants, It was inaisted the Dis-
trict Court of Louisiana, acting as a court of
admiralty, had no jurisdiction over the ease,
because 'the steamboat Orleans was not [*17T
employed In a maritime service.
The Orleans had been engaged In making
voyages from Pittsburg to New Orleans, and
from and to MaysvIIle, on the Ohio River; and
thus the employment and business of the ves-
sel was of the same character as that In the
The steamboat Jefferson, which was
176*] 'boat, alleging that hs had been on
hoard of said boat as master, and part owner,
but had been disposses.sed by tlie other part
owners, who were navigating, trading with, and
using said boat contrary to hia wish, and, aa
he conceived, to his interest, and therefore he
desired no longer to be part owner with the
other proprietors; that he had amicably de-
manded the sale of said boat, and that ho
might receive his portion of the proceeds; that
tbe other owners refused to do this, and were
about to send her up the Mis!«iasippi on another
trip, against his wjshes; that the boat lay la
to 2 L. ed. U. S. S3S ; 4 L. ed. II. I
*d. D. a. B81.
flOD; a L.
Wkat eontraeta will anpport toaritlme Hen. see
■irte to TO I..R.A. 8.-->4.
Aa to admlraltr lurladlctlon of eontrai.-ts, see
n(e to M L.R.A. ID3.
Aa to Ilea tor purctiaoa noneja, as* not* to S
say that the admiralty i
, cises Its jurisdiction over any but maritime
' contracts, where the services under them ara to
be substantially performed on tbe sea, or on
tide-waters. The material question is wbeiber
the service Is eescntially maritime. In this
case the whole voyage was to be performed
above the tide, with a smalt e^rceptlon.
The decision of this court in the cose of Pey-
roux et al. v. Howard, 7 Peters, 343, has no ap-
plication to the case now under examination.
That was a libel for repairs at New Orleans,
done on a boat in tide-water; the claim did not
arise from the voyage of the vessel, and tha
Civil Code of Louisiana gave the tibelanta a
lien on the vessel for the amount of the re-
pairs. The court enforced that Hen. In the
ease The .leffcrson, the services were not per-
formed in tide-wafers, and the claim was re-
fused. Cttedi i Brown's Civil and Admiralty
Law. 72, M.
•T7
177
SopuiiE Coun or thb Unrmt SrAraa.
e founded on
t to perform ft
The disthictiona in tbew t
wmmon sense. If • vessel
Toyage from Liverpool to Natchi ,..___. ..
Bippi. which la one hundred and fifty miles
aboTe the tide, that would be a service sub-
stftDtially maritime; and the prindple would b«
applied to it, in favor of admiralt; juriadiction
over maritime claims on the ship. In the em-
plofinent of the Orleans, the substanti*.! char-
A^ter c>f the operations of the boat is on waters
extendihg two thousand miles above tide; the
terminus of the voyage being but a short dis-
tance within the tide. It was for some time
doubtful if there was anj tide at New Orleans,
but this il now conceded.
A voyage cannot be of two characters; It
must be maritinie throughout, or otherwise; it
ciinnot be maritime as to part of thti distance,
and dilTerent as to another part. The character
of it is ducided by the substantial part of it.
If it is assumed that the intended termini
tloo of the voyage Ijeing New Orleans, wi
make the employment of a boat on the western
waters a maritime transaction; then, at any in-
178*] termediate part of the *yoyage, a libel
may be filed against such a vessel, and the
jurisdiction of the admiralty will he carried to
tlie farthest parts of the Mississippi and her
parent rivers. This will make the services to
depend not on their locality. If admiralty
jurisdiction would exist at the end of a voyage,
it would be absurd to say it would not prevail
at intermediate points. In 2 Gailison, 34S, Mr.
Justice Story says this jurisdiction depends on
the subject matter, and not on the locality. It
would further fallove that if this were not the
firinciple, that the admiralty could extend its
urisdiction iiver all the voyages of steamboats
terminating at New Orleans. If the court de-
cide tliis, what will be the inevitable conse-
qnencesT They will be to exclude common
law jurisdiction, in contracts for navigation on
the western rivers. The jurisdiction of the
courts of the United States is exdusive, in
admiralty and maritime cases, and what will
bo the effects of such a decision? Even in the
wide extent of the navifration of these waters,
exceediug twenty thousand miles, and daily in-
cieasing in every portion of its wide range,
tribunals are found which may be appealed to,
and which can alTord remedies for violated con-
tracts. But if the courts of the Union can
only be called upon for relief, the Injuries will
be augmented in number and in extent. The
District Court of the United States for West-
em Virginia is at a great distance From the
Ohio, which passes by part of the District.
The same, or greater difficulties would exist in
other districts.
It Is most important that the law on this
tubject shall be known. The reasons which
have induced the application of admiralty
jurisdiction to maritime contracts, do not exist
as to those whirh relate to the navigation of
the great rivers and lakes of the Interior. Sea-
men may be left in forcii^ countries, and for-
eign ships may leave their seamen In our sea-
ports. The lien of tho^e who navigate such
vessel for their earnings, and such immediate
enforcement, are peculiarly proper In such I
eaite*. But the vessels In the interior may al-
ways be found, and so may their owners. In
•one ot the Statea, liens umilH to Uuwe of
17*
the admiralty have been given by special legis-
lation, and ft may be found oonvenient to do
ao universally. In Brown's Admiralty Law, it
is said that no suit for wage* in the admiraltj
can exceed thirty days. If proceeding* thus
rapid were allowed against steamboats, they
might be sold for wages before the ownen
would know of the institution of a rait tor
their recovery, or even of their baring beea
demanded. The importance of the question
•of jurisdiction, and the deep interest ["nt
the owners of steamboats in the waters beyond
tide bave In its issue, have been the principal
inducements to bring this case up for decision.
A court of admiralty does not entertain ths
jurisdiction of a suit by an owner of a minor
interest, to obtain a sale of the iDteresta ot
the owners of a majority of the shares in a
ship, the admiralty has no juriadiction to com-
pel a sale in such a case. See Abbott on Ship-
ping, 73; Ouaton v. Hebben, 1 Wilson's Rep.
101; Willing V. Blight, 2 Peters' Adm. Rep.
288, 2 Brown's Civil and Adm. Law, HI) £x-
parte Young, 2 Ves, & Beames, 242; The Ap-
polio, 1 Haggard Rep. 312.
Nor can a part owner originate in the cooii
of admiralty a suit for accounts. I Haggard's
Rep. 31(1; Abbott on Shipping, 80.
Should the court be or opinion that the case
belongs to the admiralty jurisdiction, then il
will be insisted that the decree is erroneous:
1st. In directing the proceeds of tiie entire
share of the libelant to be paid over to him.
without making provision for the satisfactioa
of a mortgage to Richardson, which would still
be an oiitslnnding incumbrance on the boat in
the hands of the purchaser.
2d. The decree is erroneous in directing the
wages of the libelant, as master of the bo«.t, to
be paid out of the proceeds of its sale.
The maritime law gives the master no lien on
the vessel for his wages, and he cannot sue for
them in the admiralty. 3 Chitty on Comm. t,nd
.Manuf. 510; Douglas, 101; D East, 420; 13 VeS-
511B; 1 Barn &, Alderson, 681; Abbott on Ship-
ping. 474; Zano ». The Brig President, 4 Wash.
C. C. Rep. 469; Gardner v. The Ship New
Jersey, 1 Peters's Adm. Rep. 2?S.
In the case last cited, it was holden that hit
laim being of a mere personal nature, tbe
naster could not be paid even out of the surplus.
The decree of the District Court gave to tht
ibelant the whole amount of the wages claimed
ly him, without subjecting his one sixth to the
layment of a proportionate part of the sum.
to, too, the whole of the expenses incurred are
o he sustained b^ the owners oF the five sixth*.
"his cannot be right. But these objections are
f no importance, compared with that wbicb
entes the right of the District Court to act la
he case. It was a proceeding in the admiralty,
nnd the vessel was not the subject of admiralty
jurisdiction, by a person, who, if the juriadlc-
'' n existed, could not come Into the court aa
luitor, and on an alleged contract, of whid
admiralty court cannot take cognieane*.
The local law of Louisiana, giving (•"IM
to the master a lien on the ship for wage*. e*B-
not be extended to the case oF the libelant. Be-
ense his service, as master, having benu and
ended at Louisville, or, at the farthest, at
Memphis, was wholly without tbe Umita of tb*
Stat« of Louislaiw, Mid aboT* tide-wftUr.
- - tl.
lUT
Thb Bisuiboat OsLBua t. Psamra.
IN
A St»t« law CMiiiot extend tlie •dmlnJtr
farraHictioB to A ■nbjeet In iti natnre not
witliin tfaat jurisdiction. T Petert, S3T, Ml.
But if he hsTp % lien for hia wftges. then the
decree ia erroneoas in giving him ■ year"! mI-
«ry for the »ervlcea of a part of a year, on the
Idea that an employment uf a maater of a boat
H, in the absenM of a speolfle itipulation, a
UiinK for one year, and ttiat the ovnera eaa-
Rot aismiH him without caoM.
A contract with ina«ter, in the absence of a
•pcNiial Kgraeinent, U a hiring by the montk,
and not by the year. Uontgomery t. Wharton,
t Peten's Adm. Bep. 401.
The owner* of a ahip may, at tbetr pleanira,
dlsmJM the master. 2 Fetera'a Adm. Rep.
S»7; 1 Dall. Rep. 4»; Bee'a Adm. Rap. 388: *
Rob. 287; Gdw. 242; 1 DobKin, 22; Abbot on
Bhipping, 131, note 1.
The decree !■ also emneoiw in directing U-
belant'i adTanoee for neoeiaariea to b« paldont
of the proceed! of aale.
After the argument had proceeded thiu far,
the eonrt exprmed a dedre to hear tbe covn-
•cl for tlie appellcea on the qoeatloa of jurli'
diction, before the meiita were further dia-
Mr. Catron, for the appelleea, on the quea-
tton of Jurisdiction.
In the cauM In T Peter*, 824, the atoamboat
PIuit«r wa* of the Ter^ deacription of the Or-
leajii, trading up the nver from New Orleana,
and only partly where the tide flowed. Her
eharaeter, therefore, did not give the court ja-
riadletion. The repairs bestowed upon her
formed no maritime lien, and did not give
jnriediction.
What didt H*r *ltuation in tide-water gave
the eonrt power over her, and the lien created
bf the law* of LouiBisna waa enforced aolely
because of the locality of the veeeel.
The Orleans is a similar veBsel, was fixed
wHb a eimilar lien, and was found in a similar
loe»)lty. She, by the laws of LoulsUna, had
ft lien attached to her for wages, etc.
There can be no doubt the State conrta of
LonWana. can enforce sach a lien against the
tbfng; they have done so ever since Louisiana
ISl'1 'has been part of the United State*.
ThiM rest* on the principle of ordinary attach-
■ent laws, and it fa eonvenient. Every boat
baa > principal agent at New Orleans to pro-
enro freights, of course — the owners are scat-
tared from Pittsburg to New Orleans, as in this
tmM». Hie boat hands cannot sue them so well
■• by libel at New Orleans, where the boat
•mainly is detained, and not elsewhere Is she
certainly detained.
Tho question to be decided in advance is, can
In any case, the boat's crew enforce the law of
Hen of Louiflisnat If they can, then for the
■Kke of the principle, we wish not to be fore-
at«ned by the supposed facts of the present
cause. These have not been debated, and are
eertsJnly, to an extent, for the libelant.
A part owner may enforce hi* right* in the
admiralty. Brown's Civil Law, 131, 132; 2
P«terR'B Admiralty Eep. 290, 1. He Is a ten-
ant In common, and part owner, fnat ae the
boatwrlghts were part owners in the ease of
Tbe Planter. 7 Peters's Rep. 824.
So he who has wages due. Is part owner, jnst
•a tbo boat-boildera were. In ease of The
• li. ed.
Planter, neither the nature of the vessel, nor
the nature of the service performed pive juris-
diction; it was by reason alone of the bnat be*
ing in tide-water that the lien created by the
locat laws was enforced. If the ca-Bca are not
analogous, it is difhcult to distinguish them.
The local law of lien applicable to the cause
will be found in the ^vil Code of practice of
Louisiana. 104, S.
It Includes the ma«ter and all other navigat-
ing vessels, or water-craft nnvigaling and trad-
ing to New Orleans. And when the lien is
fixed, the right to lelie and sell i* expressly
given. The main question in this clauae being
settled for the libelant, puts all the Incidents to
rest; BO If it be adjudged to rest upon the a;en-
eral maritime law, the cause is upun Iha whol*
of the incidental point* for the dBfcndanta.
Mr. Jnstiea Story delivered the opinion of
the court:
This is an appeal from the Distrlot Court of
the District of Louisiana. Thomas Fhcebus,
who is th* owner of one sixth part of the
steamboat Orleans, filed a libel on the admiral-
ty side of that court against Forsyth and oth-
ers, who are the ownera of the other flva-
■ixth part* of the same steamboat; alleging
himself to be a part owner and master of the
steamboat, and that he had been dispossessed
by the other owners, who were navigating,
trading with, and using 'the boat con- [*18S
trary to his wishes; that he wished to havs an
amicable sale of the boat, but the other own-
ers refused, and wera about to send her up the
Mississippi on another trip, agaiust his wishes;
that the boat then lay at New Oriesna, within
tbe ebb and flow of the tide, and within the
admiralty jurisdiction of the court: therefore
part of the proceeds oe paid to him, and that
the other partners night account to him for
tbe earnings of the boat to the day of the sale.
The appellants (the claimanls and owners of
the five sixths) appeared, and in their answer
admitted the title of the libelant to the one
sixth part. Bat they denied the jurisdiction
of the oourt, alleging that the boat did not
navigate waters where the tide ebbs and Hows;
but that she navigated only between New Or-
leans and the interior towns on the MisaisaippI
River and its tributary waters. They further
alleged that she was not a maritime boat, and
was never Intended lo navigate the high seas.
They further answered; and in case their ob-
jection to the jurisdiction should be overruled.
judgment will be confined exclusively to the
questions of Jurisdiction.
It seema that subsequently, a lit>e1 was filed
0 gainst the same boat by one of her erew for
wages. In that suit Phtxbus also filed a claim
for wages aa master, and for necessaries ad-
vanced by him for the boat while he acted as
master. These charges were by the agreement
of the parties allowed to be transferred to the
present suit, and of course were to be treated
as If they had been alleged in tbe original libeL
It may be here proper to state that it Is very
regular and against tl ' - ■ . ..
courts of admiralty to a
Bunmux Ooun or the IfRms ftrAm,
mi
of »ny other matteri of (n entirelv ditferent
character; *uch as an account of the vessel's
Mtmings, or the claitn of the part owner f->r hii
wages and advances ai maater. In the first
Elace the admiraltj' has no jurisdlctiou al "
I matterB of account between part ownen
tbe next place the master, even tn ease □( n
time Bsrvfces, has no lien npoa the vessel for
tbe payment of them. So that, in both re-
qtects, these matters belong ad allutn exameo
But to return to tbe questton of jurisdiction;
ISS'I there is no doubt 'that the boat wai
employed exclusively in trade and navigation
DDon the waters of tbe MissiBiippi and its trib-
Diary streamB, and that she was not employed
or intended to be employed in navigation and
trade on the sea, or on tide-water*. And the
wages of the master, and tbe advances r
by him, for which be now claims recompense
out of the proceeds of the steamboat, are oi -
count of voyages made on Bucfa interior wa
Under these circumstances, the question arises
whether the District Court had juriadictioo, as
a court of admiralty, to entertain either the
original libel or the claims in the supplement-
ary proceedings. We shall shortly give our
opinions on both points.
And in the first place, in respect to the ori^-
nal libel. The Jurisdiction of courts of admir-
alty in eases of part owners, having unequal
interests and shares, is not, and never has been
applied to direct a. sale, upon any dispute be-
tween them as to the trade and navigation of
k ship rngaged in maritime voyages, properly
■0 ealkd. Tbe majority of the owners have a
right to employ tbe ship In such voyages as
they may please; giving a stipulation to the
dissenting owners for tne safe return of the
ship, if Ihe tatter, upon a proper libel filed in
the admiralty, require It. And the minority
of the owners may employ the ship in the like
manner, If the majority decline to employ her
at all. Bo the law is laid down In J^rd Ten-
terden's excellent treatise on Shipping. Abbot
on Ship. p. 1, ch. S, sec. 4 to sec. 7. If. there-
fore, this were » vessel engaged in maritime
navigation, the libel for a sale eould not be
maintained.
But the case Is not one of a Bteamboat en-
gaged in maritime trade or navigation. Though
in her voyages she may have touched at one
terminus of them, in tide-waters, her employ-
ment has been, substantially, on ottter waters.
The admiralty has not any jurisdiction over
vessels employed on such voyages, in cases of
disputes between part owners. The true test
of Its jurisdiction in al! cases of this sort Is,
whether the vessel be engaged, substantially.
In maritime navigation, or In Interior navi-
Btion and trade, not on tide-waters. Tn the
;ter case there is no jurisdiction. So that,
tn this view, the Dintriet Court bad no juriB-
diction over the steamboat involved In the
E resent controversy as she was wholly engaged
1 voyages on such interior waters.
Second, In respect to the wages and advances
claimed b^ the libelant. They are for service*
Dot maritime, and for disbursements not mari-
time. Under such drcumatance* the admiralty
1I4-1 has no juriadietloa; *for Its JurisdietioB
•••
!■ limited in mattera of eostraet, to thaae, and
to those only, which *re maritime. This was
expressly derided by this eourt in the caee of
The Steamboat Jefferson, 10 Wheat. R. 4St,
which, substantially, on thia point, decide* thi
present case.
There ia another ground equally fatal to Um
claim of the master for wages, which haa been
already alluded to. By the maritime law the
master has no lien on the ship even for mari-
time wagea. A fortiori, the claim would bt
inadmlsaibla for sarTioes on voyages not mari-
But It to said that the law of Loniaiana tat-
ates a. lien in favor of the master of a veoael
engaged in voyages like the present; and if so,
it may, upon the principlea recognized by this
court in Peyroui v. Boward, etc., 7 Peters R
343, be enforced in the admiralty. That d^
cision does not authorize any such eonelusloa.
In that case the repaira of tbe vessel for whiefe
the State laws created a lien were made at New
Orleans, on tide -water*. Tbe contract wai
treated as a maritime contract, and tbe liea
under tbe State laws was enforced in the ad-
miralty upon the ground that tbe court, undtt
such circumstances, had jurisdiction of the eoe-
tract as maritime; and then the lien, being at-
tached to it, mi^bt be enforced according ttt
the mode of administering remedies in the ad-
miralty. The local laws can never confer juris-
diction on tbe courts of the United Statea.
They can only fumisb rales to ascertain ths
rights of parties, and thus assist in the ad-
miniBtration of the proper remedies, where the
jurisdiction is vested by the laws of the UniUd
States.
In this view of the point of jurisdiction, w*
do not think it necrssary to decide whether by
the local law of Louisiana the master bad a
lien on the steamboat for his wages or noti
nor whether, if such a lien existed by that law.
it could be applied to any steamboata not be-
longing to citizens of that State, for lenrkM
not rendpred in that State.
L'pon the whole, our judgment ia that the
District Court bad no jurisdiction of tbe libel
or its incidents, and. therefore, that tbe decree
of the District Court must, upon this ground,
be reversed, and « mandate awarded to th*
District Court to dlsmisa the suit fw WMit 9l
Jurisdictioa.
THS LESSSE OF JOHN FLEECER et al
Ejectment — ^tate boundaries — compact be-
tween Kentucky and Tennessee — waiver of
objection to evidence— registration of will de-
vising land in State where land lies.
Tbe plaintlils la the Circuit Court at Weat T«a.
mce iDitituted an ejectment for a tmct or l%mt
lid under a Vlrglola mllltsry land wariant, i
1 11ns called Uatltcwi' Ud«, i
Poou >r u. V. The Ian
r FLOon n ix.
■oath af Wklkn't llu, ttaa latter bclsf tha ralab-
mbtd beundacj Mtwetn tU* 8U(u ot Kestuekr
tbnc States minif In ISiiO; by which compact, al-
thoreb the liirlBdlclluQ ortr th. t'-rrltory to th«
•aulh ol WarkTB lln* was acknowic^lceil fn Mom
lo TcnDta^H. (he tltlca to landi bild under Vlrxlnla
BtlKary land warranla, etc., and ctbdU from Kan-
tockr, as far loutti aa "Mathewa line,' <>err> at-
dued to b« couflrmcd: the State of Kentuclij bav-
bw, before the compact, claimed tbc rth-lit to tbe
aoll U well ■> the juriadlctloD arer tbe lerrltorj.
and bavlDB granted landa In tbe aane. The eou-
Sct of 18:^0 WM eonOrmed bj ConirrPW. Thf
[endant* Id the ejectment claimed the landi un-
d»r tltlea emnnatlDR from thp Btoip of North C'ar-
ollca In ITSe, 1794. 1705, before the formation of
lb* State of Tennessee, (.ad srantt from the State
of Teoneasee tn IBuli. 1811, lKl:i. 1814. In whkh
tbe land* claimed bj the deCendanta were iltuated.
arcordlDi to tbe boundary of the State of Tannea-
•rc. declared and eatabllshed at tbe lime the Stale
•t TecnesBFe became one of tbe State* of the
United BUIea. Tbe Clrenlt Court tnitrucl. i! tijc
arj that tba State of Tenneaaee. br aan<:i.iu.:lni:
e compact, admitted In the moat lOlcmn form
tbat the landa In diapata were Dot within bei Jurll-
dlctlon, nor within the Jurisdiction of Norlh Car-
•Ilna, at the time tbv were granted : and that
■0iia«auentl7 the tltlea ate aubject to the eoinpact.
Bald, tbat tbe InatnicUona of the Clrenlt Conrt
tnre oDtlralr eorrrct.
It la a part of the imneral right at aorerelrnty.
■ ■ plTlni- '■-■ — *
0 ealabllsh
belonclDK to Independent nalloi . .
Ox tbe diapnted bonodarle* tMtween
lie llnlta; and tba botindarlea w eataUlehed and
llied bj compact between uatlons becema cuoclu-
alTe npon all the aublecta and cicliena thereof, and
bind tbeir righta ; and are to be treated, to all In-
tent! and pnrfiOMa, aa the real bonndarlea. Tbia
rlabt la txpreaalj reeoflnlied to aziat In tba States
oftbe Union b; tbe Conatuutlon of tbe United
State* : and la guarded In Ita exercise br a alngla
llmltatlDB or raatrlettos only, taqoinnf tbe «on-
aent o( Congreaa.
The granta unuer wblcb tbe defendants In the
Clrenlt Conrt claimed to bold tbe land were not
rlgbtfull7 made; heenuK* they were orlglnnlly be-
rond tbe territorial bonndarr of North Carolina and
Tenneaaee ; this la, bj necCiixarj Impilcalloa, ad-
mitted by the compart between tbe Slatea of Ken-
tneky and Tenneaaae.
In the ordinary eonrae of thlaga, on the trial of
a canae before a Jury. If an objectiDo la nide and
orerruled ae to the admlaBlon ol triar-ner, and the
party does not take any doaptlon, be ta nnderatood
to waive It. Tbe eiceotlon need not Indeed then
be put In form, or wrllten out at lame and signed :
bat It la sufficient If It Is taken, end the right re-
aerred to pot It In form, wltbln the time pre-
•crllied by the practice or the rulei of tbe conrt.
Where a will deTlsIng lands, made In one State
li reglBtered In anotber State tn which the lands
lie, the rcelitratlon baa lelatloa backiiatdB : and
It ta wholly Immaterlnl whether Che aemr was
Bade before or after the commencemtDt ot a sull.
!«••] 'In tbe Bute o( Tenoesaee. the uniform
ttaetlea has been for teaanta In common In ejeet-
mtnt, to declare In a joint demlae. and to lecorer a
part or tbe whole ot the premlsea declared loi
aecordlDf
] tbe crldence adduced.
IN etror to tlia CSrenlt Court of tba United
Sttttea for the Diatrlct of Waat Tenneasee.
John Fleeter and othara, the defendaflta In
•rror, fnatltuted an aetion of ejaatment ta
1B32 to the September Term of the Clreuit
Court of the United Statea tor tba Dtatrlct of
Weat Tonneaaee, to recoror H trmct of land eon-
tftining two tbouaand Mven hundred and
twenty -aeven aerea, lying In Montgamrrjr
Oonntj, In the State of Tenneaaee, and lyinz
•Mtth of -Walker'a Hna," tbe eatabliahed
boundary line between the State of Kentucky
and the Stats of Tenneatee, and north of a line
called "Mathewa' line," whieh !■ In latitude
thhty-aiz degreee and thirty minutes north;
bnng the line whieh by the eonatitutlon of the
State of Nortb Carolina waa declared to be the
tnm northern bMmdary line of the State of
• Urn*.
Tenneaaee, uid which If dewrlbed u mdi by
the charter of King Charlea II.
The original Utle ol tbe plaintifTs in the Cir-
cuit Court waa a Virginia military warrant,
No. 2SSS, dated 3d March, 17M, for aiz thou-
sand urea of land, in favor of John MoMt-
gomery; and the plaintiffs read in evidence the
will of Fredericic Robrer, to whom a grant
from tlie State of Kentucky, aa the aaaignee of
John Houtgomery, waa laauad on the Sith ot
February. 1796.
The will of Frederick Rohrer, made and duly
admitted to probate in Fennaylvania, of wbica
State he waa a dtUen, waa not reglatered in
tbe State of Tenneaaee until after the insti-
tution of thie auit.
The plaintiffa introduced in evidence a com-
pact made on the Sd of February, 1820, be-
Iwneu the State* of Kentucky and Teunesisce)
which, after reciting tbat thoae Statea were de-
alrona of terminating the eontroveray which
had BO long esiated between them relative to
their eommon hoimdary, and tbe appointment
of commiaiionera for that purpoae, proceeda ta
declare that tlie boundary and ieparatlon bo-
tween the Statea of Kantiieky and Tenneiaa*
ahaJl be aa followai
Article I. Tbe line ran by tbe Tlrglnitt
commiaalonera, in the year 17TS, 1780, com-
monly called '^alker'a Une," oa the eome ia
no* r«inted tuideratood nnd acted npon by the
■•id Statea, their reapeetlve ofBcera and uti-
Mna, from the aoutheutem earner of Kentucky
to the Tenneaaee River, thence with and up the
aaid river ■to tbe point where the Hue T'l 8 T
of Alexander and Himaell, run by them in the
loat year, under tbe authority of an Act of
the Legialatnre of Kentucky, entitled "An Aet
to mn the boundary line between thi* State
and Tenneaaee, weat of the Tenneaaee River,
approved February Sth, 1819," would croea aaid
river, and thence with tbe aaid line of Aleian-
der and Munaell, to the termination thereof,
on the HiBsiaaippi River, below New Madrid.
Artide 4. The elolma to landa lying weat
of the Tenneeaee River, and north of Alexan-
der and Munaeira line, derived from North
Carolina or Tenneaaee, ahall be conaidered nnll
rived from Virginia or Kentucky, ahall, in like
manner be considered nnll and void.
Article 6. All landa now vacant and on-
appropriated br any neraon or peraona claim-
ing to hold under the States of North Carolina
or Tenneesee, eoat of the Tenneaaee River, and
north of the parallel of latitude of thirty-slz
degrees tblrty minutea north, shall be the
property of, and aubject to the disposition of
the State of Kentucky, which State may make
all laws necessary and proper for inBpoeing of
and granting aaid lands, or any port titereoft
and may by herself or officera do any acts
necessary and proper for carrying tbe forego-
ing provisions of this article into elTect; and
any grant or grants she may make tliereTor
shall be received in evidence In all thp cmirta
of law or equity in tbe State of TcnnesHep. and
be available to the party derlvinir title under
the same;' and the land referred to In this
article shall not be aubject to ta:iatinn by the
State of Teanesaee for Dve years, except ao far
Bnpwnn Oomr at i
meui time be appro-
llf
M tb« wme aiAT tn the
priated hj individuals.
Articl« (1. Claims to land east of the Ten-
neasre lliver, iwtween Walker's line and tlie
latitude of thirt^-sIx degrees and thirty
minutes north, derived from the State of Vir-
ginia in consideration of military ■erricea, shall
bot be prejudiced in an; reBpeet \>j the estab-
lishiiifnt of Walker's line, but such claims shall
be considered as rightfullj entered or ejantedi
Mid (he claimants maj enter upon said lands,
or assert their riKhta in the courts of justice,
without prejudlcehy lapse of time, or from any
statute of limitations for any period prior to
the Iptttement of the boundary between the
tvro Blates; saving, however, to the holders
and occupant* of conflicting claims, if any
there lie, (tie ri^ht of showing such entries or
Itrants to be invalid, and of no effect, or that
they have paramount and superior titles to the
land covered by such Virginia claims.
188*] 'Article 7. All private rights and
interest* of lands between Walker's line from
the Cumberland River, near the mouth of
Oby's River, to tho southeastern corner of
Kentuclcy, at the point where the boundary line
between Virginia and Kentucky intersected
Walker's line on the Cumberland mountain,
and the parallel of thirty-six degrees thirty
minutes north latitude, heretofore derived from
Virginia, North Carolina, Kentucky, or Ten-
nessee!, shall be considered as rlgbtfoUy ema-
nating from either of those States; and the
States of Kentucky and Tennessee reserve to
themKctves reapectively the power of etirrylng
into grant claims not yet perTeoted, and In caae
of crmflicting claims (if any there be), the
validity of caeh claim shall be tested by the
laws of the State from which It emanated,
and the contest shall be decided aa If each
State respectively had possessed the jurisdic-
tion and soil, and full power and right to au-
thorize the location, survey, or grant, accord-
ing to her own rules and regulations.
Article B. It is agreed that the foregoing
articles shall receive the moat liberal oonstruo-
tlon for elTi'oting the objects contemplated]
and should any disagreement arise as to the
Interpretation, or in the ciecution thereof, two
aitir.enB of tho United States, but residents of
neither Kpntucky or Tennessee, shall be ae*
lectcd. tine by the executive of each State,
with power to choose an umpire In cnse of
dtsagrcenient. whosa decision shall be final on
all points to them submitted.
Article Q. Should any further leglilatlre
acts be requisite to eUectuete the foregoing ar-
ticles and stipulations, the faith of the two
States is hereby pledged that they wil) unite
In making such provisions, and respectively
Cs such laws as may be necessary to earry
same Into full and complete efTect.
This treaty was ratilled by acts of the aeT<
eral legialaturea of the State* of Kentucky and
Tennessee in 1803.
The plaintilTs also proved that the Legisla-
ture of Tennessee haa by several acts recog-
nired Mathews' line as being in the position of
thirty.^! degrees thirty minute* north, and
that, according to observations made by oom-
tnlssionsrs appointed by the Oovemor of Ten-
nessee, Walker's line was about eight atatut*
miles north of the true meridUa of thlrtj-aU
681
T Urrb) Buna.
IMT
degree* thirty minutes. ^Hiey piuved that tl*
land in controversy was to the south of Walk-
er's line, and between It and Mathews' lio^
and that Mathews' line was run oonformablj
to the observations of the commissi oner*.
The defendants objected to the introduction
of the will of Frederick 'nohrer as {*18>
evidence,, 1st, upon the ground that the pro-
bate and certificate were not such aa to aa-
thoHze Its registration in this State; 2d. up-
on the grouna that said will was registered In
Tennessee since the institution of this suit, and
more than twelve months after the death of
the testator; and therefore could only take ef-
fect from the date of registration. But theaa
objections were overruled by the court, and
the will was read to the jury by the plaintiff!
as evidence of title.
The defendants proved that all the lands ia
their possession lie south of Walker's lia^
from a half to two miles distance.
The defendants likewise objected to tho evi-
dence of title offered by the lesson of the
plaintiffs, upon the ground that their title wai
a tenancy In common, which would not. in law,
support a joint demise, and they moved to
non-suit the plaintiffs upon this ground. But
their objection and motion were overruled bf
the court, with an intimation that the point
would be considered on a motion for a new
trial.
No exception to the opii
permitting the will to be rt
progress of the trial, nor
the right to do so was res
of the court is for exceptio
trial, If dee
D of the court 1b
was taken in the
13 it stated that
ed. The practice
to be taken after
sury.
The defendants read to the jury the follow-
ing grants, to wit: No. 16ZD, from the State af
North Carolina to Thomas Smith for sis hun-
dred and forty acres, dated 27th of April, 17K.
No. 1140, from the State of North Carolina to
James Ross, for two hundred and seventy-four
aores, dated Hth of March, 1788. No. 102,
from the State of North Carolina to N. Uu^hei
for SIO acres, dated 7(h March, I73fl. A grant
from the State of North Carolina to Samuel
Barton for one thousand acres, dated 9th of
July, 1707. A grnnt from said Slate to Dun-
can Stewart for 370 acres, dated 17th Novem-
ber, 1797. A KTant from said State to John
M'Nairy, far 274 acres, dated eth DecembM-,
1787.
The defendants also read the following
grauta from the State of Tennessee, to wit;
No. OlS to Jtihn Shelby for 320 acres, datrJ
lith of March, 1809; another grant from the
State of Tennessee to John Sht-lby for 100
acres, dated 8th March, 1314; a grant from the
State of Tennessee to Robert Nelson for 300
acre*, dated 17th April, 1811; a grant from
Tennesaea to William K. Williams for 80 acresk
dated Qth November, 1812.
The defendants then read t« the Jury regu-
lar oonveyances, deducing the title to tbcni-
selves from the different grantees above men-
tloned, 'and proved that said grants [*ltV
covered their possessions reapectiveiyj except
that each of the defendants whom the jnrj
found guilty of the trespaas and ejectment, bi
the declaration meutiooMl, were in posacaska
of portions of land not covered by any grant
older In date than tfa* fivat troin the State of
r«(e«a tl.
Poole n t
. Thb Lesheb or PLnsKk nr ai>
190
Kantuekj to Frederick Robrer, imder which
the Imsotb of the plainliffB claim.
The defendants nlso proved t!ia.t the different
(raiitee* above mentioned, under whom the;r
•laim, took posscBsion of the different tracta
of land contnined in. the grants by them read,
on or about the dates of said granta; and that
they, and those derlTing title under them, have
continued in posseasion of the same aver sinee,
daimioc the lands aa their
The defendants then ret
■tatute of Virginia passed __
eemlKr, 1701 (ch. 5S), recognizing and confl:
Ing Walker's line as the boiuidarj between that
State and North Carolina. Also the Act ot
Virginia passed on the ISth of December, 1TS9
(ch. 53, see. 14, 15), proposing to erect the Dis-
Febniary, 1791 {ch, 7S, sec. 1, 2), assenting to
the erection of the said District of Kentucky
into an independent State, at a certain future
time, and upon certain conditions. Atao the
compact between the States of Tennessee and
North Carolina.
The defendants then proved that the States
of North Carolina and TEnnesaee had claimed
up to Walker's line as the true line of bound-
ary between those States and the States of
Virginia and Kentucky; from the time at
which it was run, up to the time of the treaty
between Tennessee and Kentucky, made for
the settlement thereof, in 18S0.
The defendants also proved that the county
lines of Tennessee were Walker^s line on the
north. That in her legislative, judici^il, anil
military capncity, Tennessee always elaimed
possession, and acted up to aaid line as the
northern boundary of the State. That the pro-
oeaa of her courts ran up to aaid line, and were
executed up to it. That all criminal acts com-
mitted to the south of said line, and north of
tbe southern boundary of Tennessee, were tried
and punished in the State of Tennessee, and not
in the State of Kentucky; and instances were
proved where persons put upon trial in Ken-
tucky for criminal offenses, had been acquitted
upon the sole ground tliat the offenses were
committed on the south side of Walker's line.
That the inbabitanta south of said line all paid
1*1*] taxes in the StaU of *Tennessee, and
BOt in the State of Kentucky- That they were
always enrolled as militia of the State of
Teuuessee, and muatered as such, up to said
Una. That tUey always voted at elections in
Tennessee aa citizen thereof, and not in Ken-
tucky. That in fact, the State of Tennessee
WMS in lull and entire possession of all the lands
tjing to tbe south of aaid line, at and before the
•manation of tbe grant to Frederick Rohrer,
under whieh the leEsora of the plaintiffs claim
titlo, and from the time of tha earliest aettle-
menta that wen made in that part of the coun-
try, which took place lon^ before the dates of
the titles under which either of the parties
elafm. The defeniUats also proved that the
8tat« of Kentucky, so far aa regards the estab-
Uahment of her county lines, the service of her
militia, the payment and collection of taxes, the
reguJatioD of her judicial process, and of the
right to vot« at elections, conformed to Walk-
er's line as her southetn boundary. The de-
fendants also gave in evidence the observationa
oaade by JaCentn and Fry, and by Walker and
Henderson, and those asaoeialed with them;
and also proved that the latitude of Walker's
Une had, since the running thereof, been taken
by Gen. Dnniel Smith, a man of scionce. end
who was alonr with Walker at the running ot
his Hue, and that the latter observation of Gen.
Smith found Walker's line to be about in lati-
tude thirty-six degrees thirty minutes. De-
fendants also proved that some years since the
latitude had been taken by a scientifle gentle-
man, and from the result of his observation,
Walker's line was two or three miles too far
south. It also appeared in evidence thitt Meri-
wether Lewis, on bis return fmm the expedi-
tion to the mouth of Columbia River, had taken
observation somewiiere on Cumberland moun-
tain, and that after taking it, he had written
a letter to sume person in Kfntucky, giving
It as his opinion that Walker's line was too
far north; and that after the reception of said
letter there waa much talk In the State of Ken-
tucky about claiming to the true latitude of
thirty-six degrees and a half; but it did not ap-
pear that any definitive public act of tlie Stat*
of Kentucky had been done in consequence ol
the reception of the information afiirc^id from
Meriwether L^wis; or that, so far as Walker's
line extended west, the relative pii«BeBdiona and
claims of the two States had been interfered
with in any way. But it did appear that aliout
the year ISIB, shortly after tbe treaty with the
Chickasaw tribe of Indians, by which the lands
lyin^ in Kentucky and Tennessee, between the
Mississippi and Tennessee rivers, were acquired,
Kentucky sent two commissioners, Alexnndfr
•and Munsell, to begin at a point on the [*183
Mississippi River, exactly in the latitude ot
tbirty-aix degrees and a half, and to run a line
from thence east, to where the same would in-
tersect the Tennessee Riverj and that said com-
missioners reported to Kentucky that Ihey did
BO begin, and so run a line, and that the point
where it would have crossed the Tennessee Riv-
er was about eleven miles to the south of where
Walker's line reached said river, on the east
side thereof. Walker's line never was extended
farther west than Tennessee River-
The court instructed the jury that, as by
the compact between Kentucky and Tennessee
the boundary line of thirty-six degrees and thir-
ty minutes north was fixed several miles south
of Walker's line, and of the land in controversy,
the titles of the defendants were subject to tlie
compnct, and could only be sustained under it.
That the State of Tennessee, by sanctioning the
compact, ailmitled, in the most solemn rorni,
that the lands in dispute were not within her
i'urisdiction, nor within the jurisiUction of
torth Carolina at the time they were granted,
and that, consequently, the titles are subject to
the condition of the compact.
After the verdict of the jury, the defendants
moved the court to grant them a new trial,
which motion was overruled by the court.
The verdict of the jury was in favor of the
plaintiffs, on which the Circuit Court entered
judgment. To the instructions ^iven by the
court to the jury, on the several interlocutnr,v
questions raided on tbe trial and in overruling
the motion for a new Iriit), the defendants ex-
cepted, and tendered a bill of exceptions, which
was signed by the court-
The defendants prosecuted this writ of error.
A printed argument waa aubmitted to the
tss
IM
SuPBKira CooBT or isB UnntD Siates.
oourt by Mr. Washlaston for the pUlntilTB in
■aror, Mid the caae was arfiTied at the liar for
tbe derendanta in error hy ih. Catron, nlio also
■ubmitted a printed argument prepared by Mr.
Tngei and Mr. FoieateT. the counsel for tUe
pidntiffs in the Circuit Court.
The Brgument of Mr. Washington for the
plaintilTa in error stated that the locality of the
Uuid in controversy is not disputed; it lies
Muth of Walker's line; neither la the latitude
of that line, it being thirty-six degrees and a
half. It ha* been ascertained that Walker's
line was run south of the true meridian, there-
19S*] by taking from 'Virginia a portion of
territory which properly belonged to her, and
to the same extent increaEing the territory of
Korth Carolina.
The principal question in tbe eaae is whether
Walker's line, although made correctly or n->t.
did not become the boundary between Virginia
and North Carolina; and if it did, whether the
latter State had not, at the lime of the incep-
tion of the title of the plaintifTfl in error, such a
property to the land in controversy ai waa
capable of transmiuion by the grants under
which tbe pUintiffa io error claim. This is
contended for on the part of the plaintiffs, and
also that this right continued down to 1820, ex-
cept so far as Nortti Carolina or Tennesaee hud
transferred the property to individuals. Tlic
treaty of boundary waa made in 1S20, between
Kentucky and Tennessee; and so far as the
prior boundary of Walker's line waa altered or
aifected thereby, Tennessee might part with her
dominion over this territory, but not with
Kaperty in it, previously transferred by North
rolina or herself, for a full and valuable con-
sideration, aud to which titles in full form liad
been given.
1, Walker's line, after the demorcation, be-
came the boundary between Virginia and North
Carulinr by express and positive enactment by
tbe former State. Act of tbe liegislnture of
Virginia of December, 1791; 1 Laws of Vir.
76, ch. SB.
4. On the 7th day of December, 1T01, tbe
date of the pu.-^soge of said act of Assembly,
Virginia still retained the sovereipnty in what
is now Kentucky, and had a right to dispose
of the auil within that part of her chartered
limits, or agree as to the limits with an adjoin-
ing State.
On the ISth of December, 178B {1 Laws of
Virginia, ch. 63, p. 72), Virginia pftfsed a Iiiw
authori»ing the District of Kentucky to elect
memLiers to a convention to form a State gov-
ernment, and authorizing her to become an in-
dependent State, with the consent of the Con-
United States, a Slate of the Union.
The law fixing definitely Walkpr's line as the
boundary between Virginia and North Carolina,
and which, when Kentucky liccame a State, wna
her •outhGm line, was thus established while
Kentucky waa a part of Virginia.
The fact Lliat at Ihe time of tiie adoption of
Walker's lin« by Virginia as a boundary, what
is now the State of Tennessee wus no part of
the dominion of North Curotinii, but was the
lt4*l territory of the 'United States south of
Uw Ohio, makes no di Here nee in the ease.
''Irginia fixed her own boundary when it waa
eompetent for tier to do It, iritlumt eMunttathi
with, or the concHrrence of the adjoining claim-
ant, whoever it might be; provided she did not
encroach upon t«r^tory not her own, and tUa
i* admitted.
3. Without any lufslattve enactment of
Virginia, adopting Walker'i line, that mutt U
considered the boundary between Kentucky and
Tennessee, la virtue of the principles of naucap-
tion and prescription.
The record in this case abundantly ahowi
that from the time at which Walker's line wai
run, it waa mutually recognized by Virginia
and North Carolina, and, subsequently, by Ken-
tucky and Tennessee, as the boundary between
them. That the counties in those State* were
laid off on each side of the line, those in Ken-
tucky calling for it aa the southern boundary,
and those in North Carolina aa the northern
boundary. That the territory on each side of
the line was actually possessed by those Statsi
respectively, accordinc; to the abovs designatko
of county limits. That exclusive juriadictkn
waa claimed and exercised by Vir"iuia aid
Kentucky on the northem side, aud oy North
Carolina and Tennessee on the loutbem; and
that the jurisdictions so claimed and exercised
were mutu3.11y conceded and acquiesced is.
That both States, not only in the appropriation
of territory but in the settlement of inhabit-
ants, the reputation of their citizenship, the o^
ganization of their militia, tbe voting at th*
elections, the collection of taxes, and the ad-
ministration of their laws generally; and ref-
erence to this line as a common boundary. B
is trve that some claims to land situated on ths
south of this line, and derived under the SUU
of Virginia do exist; but they are comparstive-
\y few, and without a single exception, origi-
nated either before the line was marked, or it*
position had become cotorioua. A dccisiva
Carolina, than did from Virginia, is to
be found in the fact that by the Treaty of
1820 said line waa finally established, notwith-
standing it waa then admitted, on all hands, to
have been placed in the first inatance too far
north; and that Tennessee was suiTered to re-
tain dominion over the space in question, and
that the claima of individuals holding under
her and North Carolina were (auctioned, ex-
cept au far as they conflicted with older one*
derived under Virginia and Kentucky, and that,
too, for a very inconsiderable equivalent.
'Now, why were these provisions con- ['IBS
tained in tli« treaty! For no other reasoa, tt
is believed, than becauaa almoat the whole of
thi* territory had been appropriated by Nortk
Carolina and TenneBsee, and the citizena of tba
latter State had a deep Interut that thiM
should remain in statu quo, and the Stata iUut
was under obligations to maintain their li^ta
which had been thus acquired. And for aor-
reaponding reasons, the State of Kentneky
must have been willing to renotince > clai*
which had no legal foundation for tta aupport,
especially, when her engagmenta to her on
citizena were not much concerned In the mat-
ter, and when, at the same time, iba wai pro-
viding security for the molt of them againat
Poiers >!■
Pooax rr u. T. The L»s^ or Kmon cr u.
tte kdverae UUu dmired from ftltothtr ■OTer-
Tbe connul for the plalntifTa in error alsn
eontended that the posMSiion of the lands
■outh of Walker's lloe had oontinued ao long
in North Carolina and TenneMee •■ to kmouiit
to a preacription.
Between naliona there ia do apeciflc period
dnrins which possessioQ of dUpated territory
must have remained with one of them, to con-
■tttnte a title hy preseriptioa; becaiue aa be-
tween BDch claimanta there ia no aupieme pow-
er to dictate to them a poaitire rule of action.
Bnt the principle applicable to aueh a ease,
which is derived from the law of nations, is,
that possetsion must hare endured long enouf^h
to evince a distinct acqoieacence on the part of
the adTerse claimant in the rightfulness of the
poaaessiotl; and what lenirth of Doaaeaslon la
Beeeaaary for that purpose, auat, of course,
depend upon the peculiar eircunstancea of
ORcb nee. To give to poaaesaion inch an ef-
fect, it ia requiiite also that it should have
been held witn the knowledge of the advene
alftimant; for the fact of pnssi'ssian operates
againRt the partv which aeeka to dis^nrb it as
Eesutnptive evidence of abandonment, and it
miehea to the part; holding ft proof of the
■ame description, and of equal force, in favor
of the eziatence of the right. In this case the
poBaession of North Carolina ma; be coupled
with that of Tenneasee, or considered as one
eontinning poaseaaion, on aeeoant of the relation
which thoae States auatain towards each other;
asd, for the lame raaaon, the acta of Virginia
knd Kentuckj are to be viewed aa identical.
It waa contended that thia poaaesaion, and
the constant aaaertion b;- North Carolina and
Tennessee ol title to the territory left out hj
WalkcT'a line, waa well known to Virginia, and
WAS acquiesced la fa; her. Thia poasession
eommenced, and the acquiescence of Virginia
!••*} 'in it, before the title under which the
defendant in error claims, accrued. The argu-
ment contained a reference to written testi-
mon; and to l^slative enactments b; Virgin-
la, aa well aa to evidence of her frequent recog-
nition of the poasession and disposition of thia
tenitor; b; the executive of that State, after
the running of Walker'i line.
It ia a prindple of muaidpal law, perfeetl;
well •stabliahed, that poaaeaaioa of land for a
great len^^ of time, and nonclaim, will vive
a good title, and that, in support of auch a
title, alnioat anything ma; be presumed; such
aa an act of Parliament, a grant from the
■rown, a deed of conveyance, the extinction of
aa outstanding oppoaing title, etc. Chalmer v.
Bradley, and Gibaon v. Clark, 1 Jacob ft Wal-
ker, to, note !, ISl; Jackson v. Hudson, S
Johnaoa's Ch. Rep. STS; Powell v. Millbanke,
Cooper, 102, 1; 10 Johnson, 3B0; 3 Johnson'a
Caaea, IIB; 3 Oonneetient Rep. 630; 11 East,
tSO; 10 Eaat, 488. Thia principle also pervades
the public law, and la not affected in its oper-
rticM by the doctrine of nulluro tempua ooeur-
Ht ragi; beeauM, whenever it ia brought to
baar upon queations of public law, both parties
•ra aovereigna, and stand in the same relation
to each other aa individuals do in ordinary casus.
4th. The Treaty of 1820, made between Ken-
tmekj aad Traneaaee, doea sot aSMft the UUe
•f ttaa plaiotiffa in anor,
ft-—.
It baa been shown, in tbe views already ikea
of this subject, that North Carolina ana Tea-
nessee acquired a complete title, including faotk
sovereignty and properly to all the lands oJ Um
south side of Walker'a line. It so, the; wore
competent to transmit property in any portion
of thoae lands to the plsintias in error; and
that tbe; did so, aocorJing to all legal foraal-
ity, and that for a full and valuable considera-
tion, Is shown in the record by the produetlon
of their grants. Then, the plaintiffs ia error
being once inveated with title to the property
in dispute, what was devested themT It ia said
that tbe Treat; of 1820 haa had the effect; not
by a direct process of devest it ure, but by the
admission of Tennessee, therein made, that the
land, when it was granted did not lie within
her jurisdiction, nor within that of North Caro-
lina. But how was the fact, notwithstanding
that admiaaion T It waa thai the land did lie
within the jurisdiction of North Carolina and
Tennessee at the time referred to. Then, tbe
Suestion is presented, whether it be oompetent
ii a Stale, by admiaaion or otherwise, to de-
vest a title already conferred upon one of ita
citisenal For, change the aspect of it aa ;on
will, it Is 'still a question aa to the pow- ['ItT
er to devest, assuming that the land waa not
within the jurisdiction of North Carolina and
Tennessee, and their grant would be void for
want of propert; in the subject matter of the
srant. But proring, as the plaintiffs in error
have done (and surely they stand in a aitua-
tion to be permitted to make the proof), that
the land did belong to tbe grantor at the time
that the; became grantees of it, and then the
admisaion of the Btate to the contrary becomes
of no avail. It is a principle of law that what
one claima title under another, he will not ha
permitted to deny the title of him under
whom he claims. But the reverse of that prin-
ciple ia by no means true; that is, where the
grantor, after having made and delivered a
grant, acknowledges that he had no title at the
time of making it, his grantee is not bound by
that nciinowledgment. So far is it frvrn being
true that, if the grantor had not, in reality, an;
title when he oonveyed, but afterwards acquires
one, it vests, eo instanti, by relation to the date
of the grant, in the grantee; and thia, too, by
operation of law so that the grantor could not,
il he would, afterwards defeat his own aale.
Bow is it pouible, then, for a posterior admia-
aion of the State of Tennessee to take away
from the nlaintiffa in error rights which they
undoubtedly had before that admissioD waa
It is likewise a principle of law, founded in
abstract justice and morality, and highly pro-
motive of good faith, that a party is estopped
from denying his own deed. And the doetriaa
of estoppel does not nppl; to the execution of
tbe deed simply, for ..s being the deed of tba
party, necessarily implies ita execution; but It
applies to the operation and effect of it, so that
the grantor is bound by all legnl inferences and
consequence* resulting from it. Now, to say
that it lies in the mouth of the grantor to deny
that there waa an; subject matter tor the
grant to act upon, appears to b« aa effectual a
■node of destroying it, and of abaolving him
from the obligation of it, as any that oould ba
m
Coun or thb Umns Btaii
enforeed agalnit i. BtateT When » State make!
ft grant to Kn Individual, It in a contrnct, witli
all the incidents of an; other contmi;!. of t!
ume kind attached to it, and in the mailing <
which the State exerts onl; the seme capacities
that an individual would do In a like caae; a
it must, therefore, be governed by the liii
rules, regulation!, and restrictloiu, In everj i
When TenneiBee and Kentucky entered Into
tha oompact of 1820, it Waa competent for the
former to part with what she had, and no
Its'] 'more. She then posscased sovereignty
over the land which is the subject of this suit,
but no property in It; that belonged to the
plaintiffs in error. She might, therefore, have
Krted with her aovereignty over the land, and
ve transferred the allegianco of the owner*
of it to the State of Ksntuclcyt in which case
tfaeir right of property would hare remained
uoafTected. But precisely the reverse of this
I* what, b; the oompact, she purports to have
done; this is, to retain the sovereignty, and
cede tl:e property; or, what amounts to the
same thing, to give such an effect to a oertaia
state of fact, aa will enable the defendants in
error successfully to bold the property against
those in whom the title before existed; when,
without EDch an effect, thus communicated,
those facts would have been wholly ineliicient
for the purpose.
Now, ia tlie doctrine to receive judicial sanc-
tion that a State, although she may be sover-
eign, can thus tamper with the rights of indi-
viduals! Jn one sense, sovereign powv may
be competent to do anything — to destroy all
the creations that have taken place under the
•zerciae of it— and that, too, without any regard
to the cons ei|i ten cos of anch wantonness. But
under our Con^tiTituiion and laws there ia some
restraint imposed upon the exercise of the pow-
er at thu Stale: the functions of ail public Ind-
ies and public oftlcera are limited and defined;
and no interference can tnke place with private
property that la inconsistent with right, and
unwarranted by known rules and regulations.
The Lo^-ialature of 'I'enncssee, in appointing
ComniiBBiotiere to make this compact, and in tlie
subsequent rtitiilcation of It. and the commia-
aioners themselves in making it, all acted by
virtue of a delegated power; and no power was
delegated to them, or could be, that was incom-
SatiUle with the cliartcr whence that power was
erived. The 20th section of the declaration
of rights, whii^h is a part of the cunstituliuii of
Tennessee, saya "that no retruKpective law, or
law impairin;; the obli, uiioii at utmtruclB, shall
be made." Now, here is an e\preBB limitati. n
upon the power of the Legislature. Has it
been observed in the making of thia compaciT
Wliat is meant by a retrospective lawT It is
one which changes, or iniuriuusty affects a
present right, by going behind it, and giving
efTictcy to anterior circumstance* to defeat it,
which they had not when the riglit accrued.
This compact looks back to the dales of the
warrant and grunt issued by Vir^^iuia and Ken-
tucky, both powerless aa emnnating from thoiU!
States; ovcrlesps the intervening title derived
(orm Tennessee and North Carolina, which
19V*] waa 'good if tt liad been let alone; and.
by the new life which it breathea into the
wnrthteM claim, aubveris the other. And what
•••
Is meant by the obllgatloa of a contract, tm Oi
sense of the ConstitutianT Aa applied to tUi
case, we shall best ace by inquiring what was
the state of the contract upon which tba plaia-
tiffs in error rely, without the provisiona of tka
compact, and what It is with them. Gettiu
aside the compact, and there ia a grant, which
ia the highest muniment of title, and which
binds the State to defend the possessor fat tba
enjoyment of the land. But taking the ema-
pact into consideration, and giving foroe to ft
according to its terms, and you destroy the
grant, and take away from the holder all the
consequences flowing from it; thus most em-
phatically impairing the obligation which It
had created. The paasage of such a law wonU
even exceed the competency of the Britiah Par-
liament, notwithstanding its attribute at om-
nipot^ce; and the judges there would not tail
to pronounce It void, as being in violation of
natural juatice and inherent right. 18 Joha-
aon, 138i 7 Johnson, 497; i Dallas, 308, 311.
The sixth article of the compact of 1B20, na-
der which thta suit was brought by the defand-
anta in error, is In the following words:
"Claima to land east of the Tennessee River.
between Walker's line and the latitude of
thirty-six degrees thirty minutes north, derived
from the State of \'irginia in consideration cf
military services, shall not be piejudiced in aa)
respect by the establishment of Walker's line;
but such claima shall be considered as rightfui
ly eutered or grained, and the claimanta mai
enter upon said h'.nds, or assert their rights ia
the courts of justice, without prejudice by law
' ' '~ from any statute of llmitationa, Io>
ttlcn
of thi
boundary between the two States; saving, t
ever, to the holders and occupants of eonUct
ing claims, if any there be, tlie right of ahov
lug such entries or granta to be invalid, and ol
no eirect, ur that they have paramount, aial
superior titles to the land covered by such Vir
ginia claims,"
It has already been shown, In the preceding
views exhibited of this case, that by the estab-
lishment of Walker's line in the Brst instaoee,
Virginia disiiiictiy admiiied (hat the Und to
the south of it was not within her jurisdiction,
and did not belong to her; and that North Car-
olina, tiy the pusa^asion of that laud, acquired
a complete title to it. The title thus acquired
by Morth Carolina, would certainly inure ta
the benefit of the plaintitla iu error, aa f ar as
any of that land was granted to them. Tbea,
by the above article of the 'compact, ['300
L-d that title; which renuo-
ai.phed t
this ci
', did r
least affect tlic interest of the E
operated to destroy the right vested ia her
(jrauices. The aniclea goes tarther, and aayt
Iiiat the claims under Virginia shall b« consid-
ered as rightfully entered or granted; and shall
not be prejudiced by lapse of time or any atat-
ute of liuiitationa. In this respect, tha GOtnpaet
professed to act directly upon the rights of ia-
dividuala, aituated as the parties to thia anit
are; giving to tha one a title which he had not
before, and taking away from tlie other that
which ha had — tymg up the hands of one, aad
furnishing tbs other with a moat deadly offen-
sive weapon. By the provisions thus inter-
poaed, lapse of time, preaumption. and tha atat-
PMen 11.
lKt7
I'D.
, X'tu: Ixsau or Ftixun n ai.
Ota of limitationi are all cut off u tonrces
from which titif mi^ht h«ve twcn acquirrd,
atid, in fact, wna aci|iiired. If tliore is abj
queation ptrSeMy wfU settled in tbe courts of
Teiuie^aK, bo tliat no one now thinks of nipet-
tDg it again, it is, thst our statutes of limiia-
tion as applied to land, hs-ve a double openLLion
—that is, tliat Ifaey bar ibe remudy of the
plaintiff in ejectment, and gare to the defend-
ant, allhougti his paper title was utterly void,
a title ^ood against tlie whole world by positive
prescription. Act of 171S, eb. 27, sec 2; Act of
17»7, cb, 43, sec. 4; Act of 1SI9, ch. 28, sec.
SI; Porter's Lessee t. Cocke, Peck's Rep. 47;
Perguaon v. Keiioedy, I'pck, 3:^1; 3 Johnuon's
Cb. Kep. 142, 143; 10 Mud. 2US. It appears,
therefore, that the siiktli article in the compact
caniiut be suatained without its operating as a
repeal of thuse statutes, a reversal of thoaa
decisions, and a direct judicial sentence.
fith. The title under which the defendants in
error claim i« void for cliamperty.
'i'but iiLie is the grant trom the State of Ken-
tucky, operating proprio vigore; or It is the
above article in the compact, or it is both taken
together. Now, considering it either way, there
was an adversi- possession liy the State ol Ten-
neaseo, or by those claiming under it, at the
tine of the origin of the title of the defendants
In error; and the provisions of the statute of
32 Hetu-y VIIl. (ch. 9) operate upon the eon-
v«7*nee thus attempted to be made, and render
it absolutely void. Williams v. Jaekaon, 6
Jobnaon, 408; Co. Lit. 214, sec. 347.
Ath. The leasora of the plaintiffs in the court
below have shown a title which makes them
teaaots in eommoa only, and there it but
aol*] *one demise in the doclaratlon, and that
a joint one. TenantB in common cannot sup-
part ejectment upon a joint demise.
Although the action of eiectment is fictitious,
yet auch a demise must be laid as would, if
actually made, have transferred the right of
poBsesaion to the lessor. Ejectment is a posses-
aorj action, and each tenant in common is not
capable of demising the whole premises; and,
therefore, a cum- is not made out upon the face
of the declaration which entitles the lessor to
bring suit. Adams on Ejectment, 186; Tre-
port*a case, 0 Coke, 16, 6.
It la due, however, to the circuit judge who
tried this cause, to state that this defect in the
declaration. If It be one, was not discovered
until after the trial was gone into; and that.
although he overruled the motion for a nonsuit,
founded on it; be intimated that he would re-
serve the point for further consideration, upon
ao application for a new trial, if one should be
made. And that none but a formal applica-
tion for a new trial was made, on account of
eircumatances known to the drcuit jndge, which
caoneil the sudden and unexpected adjournment
of the court.
7th. The will of Frederick Bohrer, under
wUeh the defendanta In error claim, ought not
to have been received in evidence; Ist. On ac-
eoant of the insufnciency of the certificate and
pntbAte to authorize ita registration la the
Stmte. 2d. Upon the ground that said will wan
ref^tered in Tennessee, after the institution of
this suit, and therefore could only take effect
front the date of registration.
Tbo will of Fradcrick Bohrer was a foreigu
vania; and what purported to be a copy o
was produced upon the trini of this cauas. ii
is perfectly clear that no will made out ot tha
Slate of Tennessee can pass tamla situated in It,
and that no evidence of a will can be received
in the courts there for the purpose of affecting
titles to land hut in strict conformity to the
laws of Tennessee. Kerr v. Moore, 9 Wheat.
671. The probate of the will and the registra-
tion are all in the record, and the court is re-
spectfully requested to examine them. They
will compare them with the provisions of the
act of the Legislature of Tcnncisee on the sub-
ject. It will be observed that the Act of 1S23
(ch. 31) authorizes copies of xuch wills to be
recorded in the county where the land lies, pro-
vided they shall have been proved according to
the law clien (1623) in force in the State, as to
wills made and executed within tite limits of
the State. Act of the 1st sessioa of 17M, dk.
*22; Act of 2d session of 1784, ch. 10. [*10l
And when so recorded, shall have the same
force and effect as if the original had been ex-
ecuted in this State, and proved aikd allowed in
our courts; and shall be sutricieot to pats lands
and other estate.
Whether a copy of this will was duly proved
and recorded in Tennessee or not. It was not
recorded until after the commencement of the
suit: and there is no principle better under-
stood or more universally adniitteU than that
in ejectment the lessor of the plaintiff must
have a title to the premises in dispute at the
laying of the demise. And, according to the
construction of the above statute of 1823, the
title to land here does not pass by such a will,
until a copy thereof is actually recorded In tha
manner therein prescribed, nor (hen, unless the
probate is in due form, and the will itself shall
have been executed with the solemaitles i«>
quired.
Mr. Catron, for the defendants in error.
By mutual legislation and arrangement be-
tween the States of Virginia and North Caro-
lina, comniiKsioners were appointed as early as
the year 1779, two from each State, who met
in September of that year, for the purpose of
extending the common boundary of the states
on parallel of latitude thirty-six degrees thir-
ty minutes north.
The line, in part, had been previously run by
Fry and JefTurson; beginning at the Currituck
inlet, and extending west 32B miles to Steep
Rock Creek near New Kiver, and at ei^ty-
one degrees twelve minutes west longitude
from London. Haywood's History of Tennes-
see, 473.
The commissioners on the part of Virginia
were Doctor Thomas Walker and Daniel Smith,
and those acting in behalf of North Carolina,
Colonel Henderson and William B. Smith.
The commissioners by mutual observationa m-
oertained the precise latitude of thirty-six de-
grees thirty nimutcs north, being one mile 201j
poles due south of the termination of Fry and
ilefferuoa's line; and there fixod their beginning.
After running the line as far as Carter's valley,
forty-five miles west of Steep Rock Creek, the
Carolina gentlemen conceived the line was
farther south than it ought to be; and on trial,
it was found the variation of the needle had i
slightly altered. On making observations, it ^J
Soranu buCBT or iaL Uj<1tb> Siatx*.
1S3T
wu inpfKiMd tbe line at thftt point was more
than two milea too far touth — one of the Vir-
Sola oommissionen concurring that this waa
e fact. The distanoe was measured oET duo
north, and the line run eastward from that
pUee \>J the Carolina commissioner* to Steep
Bock (>eek, aided b; one of those from ^'i^■
*9**J ginia (Mr. 'Stnitb), for about twenty
tnilM eaat, when he became latisfled from re-
paatad obaerrationi that the second line waa
r Walker had continued to extend the lln«
welt, but waa aoon overtaken by Mr. Smith.
Ooneurring that tbe first line was on the true
latitude, they accordingly brought it up from
Garter'a valley, and extended it to the west-
ward, aeparate from the Caroliiik oommiision-
en, who did not again act in concert with them,
but extended the second line as far as Cumber-
land mountain, protesting against the line run
by the Virginia eommitaionen; and there they
ceased tbe work and retumed home. East of
Cumberland mountain the southern line waa
afterwards known as Walker's line, and the
northern as Henderson's line — being something
more than two miles apart, and extending from
Steep Rock Cnek to Cumberland mountain.
TSb Virginia oommissioneri from Cumber-
land Gap, where they struck the mountain,
continued the extenaioii of the line run by them
west, through the mountain, and marked it at
far as Deer Fork, 124 milea from tbe beginning
at Steep Rock Creek. They there left oH run-
ning the line, and went west to Cumberland
Kver, about 109 miles from Deer Fork; ascer-
tained the true latitude of thirty-six degrees
thirty minutes, as they supposed, and from tiiat
point run and marked the line west (crossing
the Cumberland River again at 131 miles) to
tbe Tennessee River, 41 miles from the first
eroiaing of the Cumberland. Their authority
extended no further; but on their way home
orders met them from the Governor of Virginia
to proceed to the River Mississippi, and there
••certain and mark the termination of the line,
which service they performed. The line from
Cumberland to Tennessee River is known as
Walker's line; and where It atrikee tbe Ten-
neeaee is over eleven milei north of thirty-six
dq^ees thirty minutes, but much less north,
where it was commenced at Cumberland River.
This circumstance produced tbe present con-
troversy; to understand which, it hu been
deemed necessary to give, in aomethiag of de-
tail, the history of Walker's line, and why it
was not recognized as the true boundary be-
tween Kentucky and Tennessee, and the necea-
shy of the compact of 1820 to settle tbe bound-
ary between the two States.
The constitution of North Carolina declares
the northern boundary of that State to be
thirty-six degrees thirty minuea (see 26).
It is attempted to be changed by Walkc^^l
Una, mn In 1770, I7SCj and the Virginia Act o(
Assembly of the 7th of December, 1791 (eh.
S04*] *55). The line had been marked west
from Cumberland River to the Tennessee River
by Walker. In Dec«mbGr, 1780, a committee
■it the House of Commons of North Carolina,
to whom was referred the letter of the Gov-
ernor of Vlrgina, reported favorably to the es-
tablishment of Walker's Oaa, but the 6«naU
did not act. At tbe attt Hssidll^ fllK Decem-
ber, 17B0, a committee of the House again re-
ported, and recommended a law to be passed
confirming Walker's line as the boundary be-
tween Virginia and North Carolina, teaenring
tbe right of the oldest grants or entriea mada
by either State. The report was coDcuired
with by both bouses (Bayw. Hist. Teun. 4M).
To meet the report Virginia took tbe first
step, and on the 7th of December, 1791, passed
an Act oonformably to ft. Id. 4S6. But North
Carolina passed no law upon the subject; for
the well-known reason that, in February, 1790,
she bad ceded the western part of the State
to the United States; which government (not
North Carolina) had the sole power to fix the
boundary with Virginia, from the northwest
oomer of North Carolina to Cumberland Gap.
See Sesaion Act, Hayw. H., 434. In 1796 Ten-
nessee became a State, and of course reeog'
niied no act of North Carolina after the eeo-
lion of the United States. Hayw. H., 8.
Nor did Kentucky recognize the legislatlaM
of Virginia west of Cumberland Gap after Um
18th of December, 1789. Then an act waa
passed aathoTixing the District of Kentucky to
coll a convention for the purpose of separating
from Virginia, the assent of Congress being
had. The convention waa called, a separatioB
determined upon, and the Act of Congress of
the 4th of February, 17B1 (ch. 7S), waa paased,
receiving Kentucky, according to its actual
boundaries, on the 18th day of December, nSSj
Kentucky to come in as a State on the 1st of
June, 1792. On the 2d of April, 1702, Ken-
tucky formed her flnt constitution, and thereby
declared the compost with Virginia a part
thereof. Art. 8, sec 7, 1 Marshall's Hiat.
Kentucky, 408. Virginia is concluded by it.
Green v. Biddle, B Wheat. 1. The Act of
Congress of the 4th of February, 1701, settled
the southern boundary of Kentucky at thirty-
six dgrees thirty minutes, and Virginia bad
no power to change it afterwards; her act of
the 7th of December 1791, is, therefore, of a«
validity In this controversy.
But it never was intended to have any foFsft.
North Carolina adopted a report (having bo
law, but North Carolina did not meet it; the
object was a compact by mutual 'leg- [*XOS
islation. Is it not most harsh to saj Virnni»
shall be bound by her act to confirm the North
Carolina claims; to surrender territory equal
to four counties, and North Carolina shall Mt
be boundl
The act of Virginia, In Ita terms only, ex-
tends to the common boundary between Nortk
Carolina and Virginia, as run by Walker. The
line was begun at Steep Rock Creek, forty-five
miles east of Carter's valley, and east of the
northwest comer of Tennessee. Prom Steep
Rook Creek to the northwest comer of Nortk
Carolina waa the only part of Uie boundary be-
tween North Ckrolina and Virginia to whi^
the Act of December, 1791, did or could apply,
because west of this North Carolina bad no
furls diction. And so Virginia understood tbe
aw, as is manifest from nv oomput of IBOl
(oh. es, I Soott, 718, 1603, ch. SB), by whkk
commissioners from the reapectiv* Statea m^
tied nod marked * new bonndaiy, eqai-dlataal
Poout a At. J. Thi Ijuaa oi FLXton ■
bfltwiM WAlker*! and Henderaoii'i line, fron
Cnnberhuid G«^ eut, to Um northweat corner
of North CkTolinm.
Tlut either TeuneMee or Kentael^ ew im-
agined that the uta of Virgiaia or North Cai-o-
Usa had affected tho common boundarj of the
Statea cannot be pretended; the rsTerM ii
fituninentl; manifctt tram Tenneisee act of
SOI (ch. W). ia03 (ch. 03), 1812 (ch. 61], ISIS
(eh. 192), ISn (ch. 197), 1819 [ch. 89), and
1820 (oh. 20). In fact, and by univerul ad-
miiaioo on the part of Tenneeue and Ken.
tucky, the act of Virginia never affected the
question presented tty the record. Conceding
to the act the validity claimed for it, and sup-
poae North Carolina had met it by a corre-
aponding atatute, Btill it could hare no binding
effect. The conititutions of Virginia and North
Carolina conferred juriBdiction to thirty -six
desreee thirty minutee. Could the Statea by
Iwislation or by compact fix the bouudary ten
nilea farther north T Would such act ^ve
North Carolina jurisdiction over the Conatitu-
tionl That the Legislature of North Carolina
had no power to authorize grants north of
thirty-aix degrees thirty minutes, must be ad-
mitted; her Krasts are dearly void. But, then.
It is contended the act of Virginia of Decem-
ber, 1791, prescribed Walker's line a* the aouth-
ern limit of the district in Kentucky, where
Virginia military warrants could be located;
and the plaintiff's grant heiaa south of the line,
it is alao void; therefore, both titles being void,
the plaintiff muat fail.
The aixth article of the compact confirms the
mjlitary grants of Virginia aoutb of the line
knd north of thirty'Six and a half degrees. The
compact is just us good and e(li»:tual a grunt
as an ordinary patent.
SO**] 'North Carolina granted 2S,000 to
G«n. Ureen, and 200 acres to the town of Nash-
Tille, by statute, and each of which grants
have received the judicial sanction. So Ten-
ness&t confirmed the military grants made
north and east of the military boundary, by
her Act of 181S. Ch. 173, and in various otlier
Thfc compact is the supreine law, by the Act
of Congress adopting it, of 12th of May, 1S30.
Ingersoll's Digest, e05; Con. U. S. art. S, sec.
2. }Iut for the contlrmation, the jurisdiction
of Tennessee could not extend beyond thirty-
aix degrees thirty minutes north; because the
I^^slature conid not alter boundary lixed by
the Constitution. Congress had made it the
a(ipr«me law over the constitution of Ten-
tUMe*.
And In this connection it may be remarked
that all legislation on the part of Virginia and
North Carolina, tending to change the bound-
»ry from thirty-six degrees thirty minutes, to
thirty-six degrees forty minutes, would have
been obnoxious to the 1st art. 10th sec. of the
Constitution of the United States, wliich de-
^rea: "No State shall, without the consent of
Congress, enter into any agreement or compact
with another Btate." The prohibition must
comprehend oompacta of cession from one
Hate to another; if not, Pennsylvania may
treat for half of Delaware, and still leave her
with two aenators and one repreaentative la
Congraaa, and the eeded halt be npresented as
INtit •! FMuiajlvaaiA.
Out disputed bonudary presents an ample
Illustration of the necessity that the assent of
Congress should be had. By our Act of 1801
(eh. 29) we ordered commiaaionera to be ap-
ginted to treat for all the country south of
een River, Including now about tventy-flve
counties in ICentucky. By the compact of
1B20, Tennessee acquired nearly half a million
of acres north of thirty-six degrees thirty min-
utes; if she eould go ten miles north, she might
two hundred, and purchase out a slater State,
aapping the foundations of the Union.
13ut suppose the Tennessee and North Caro-
lina grants the better title, yet It becomes nec-
essary to cede them to Kentucky, as part con-
sideration of the compromise; we, says Ken-
tucky, will give you the sovereignty to Walker's
line, in consideration of which you shall give
us the right of soil; and it was agreed. I* this
not taking private property for public uset 3
Story's Com. 601; 2 Kent. 339, Zd edition.
By the treaties of 1817, 1819, the sovereignty
of the Cherokee country was ceded to the
United States, with the right of soil, and cer-
tain Cherokee occupants had granted to them
a mile square each as a part consideration. One
of these reserves covered •» grant made [*ao7
to Stuart in IBOO by North Carolina. It was
holden, per Haywood, Judge, and not denied
by any, that the private property of Stuart's
assignee could lie ceded to the Indian (2 Yerg.
R. IM, 5, S), and Congress paid Stuart's as-
signees for the land. Qimet v. Winton.
The provision of the Constitution of the
United States that private property shall not
be taken for publio use without just compensa-
tion, applies exclusively to a taking by the
United (states government, and has no reference
to the acts of the States. To be bound, they
must be named, as that no State shall pass any
ez post facto law, or laws impairing the obliga-
tion of contracts. Barron v. The Mayor of
Baltimore, 7 Peters, 243.
The cunstitution of Tennessee (Bill of Rights
XXI.) declares, "No man's property shair be
taken, or ttpplied to public uae, without ttie
consent of bis representatives, or without ]aat
compensation being made therefor."
1. By consent of his representatives means
by a law of the land, as wliere roads are
located on private property, and no compensa-
tion ia made.
2. In lime of war, when the militia are called
ont, fuel, forage, provisions, boats, etc., may
be taken, without any law positively authoris-
ing of it. Then compensation must be made.
Mr. Justice Story delivered the opinion of
the court:
This is the case of a writ of error to the judg-
ment of the Circuit Court of tlie United States
for the District of West Tennessee. The orig-
inal writ was an ejectment, brought by Fleeger
and others (the now defendants in error) against
Poole and others (the now plaintiffa in error) to
~ ~ >ver a tract of land containing 2,727 acres
Montgomery C>iunty, in Tennessee, lying
south of Walker's line, so called, which oon-
Btitutes the present boundary line between the
States of Kentucky and Tennessee; and north
of Mathew's line, so called, which is exactly
now in latitude thirty-six degrees thirty min-
utes north, wliich, bj the constitution of North
SuFnuB Coun or thk URtiui SiAitt.
Ckrolfttet, I* declared to b« the true noTthem
boundary lica of the State, and is bo described
In the charter of King Charles TI.
At the trial, the original plaiotiffi proved
their title to be aa devisee* of one Frederick
Itohrer, who claimed it b; a grant of the State
of Kentuckj, dated the 24th of Februarj,
IT9S, in part satisfaction of a Virginia miti-
^r]r laud warrant held by Rohrer as assignee
SOS*] *of one John Montgomerj. They also
read In evidence the compact between the
States of Kentuckj and Tennessee of the Bee-
ond of February, 1820. The defendants
claimed title under certain grants from the
State of Noi'th Carolina of various tracts com-
frehending the premise* in question, dated iu
7Sfl, 17S2, and 1797; and also under cerUin
{rants from the State of Tennessee in 1800,
SlI, 1812, and ISU, from which they deduced
fc regular title to themselves; and they proved
that the same grants covered their poaseBBions
respectivdly, except that each of the defend-
ants, wliom the jury at the trial found guilty
of the ejectroent, were in possession of portions
of land not covered by any grant, older in date
tbsJi that to Rohrer. The defendants also
proved that the diUereut granteei under wbom
they claimed took possession of the different
tracts of land contained in their grant, on or
about the date thereof; and that they and
those deriving title under them, have continued
in the possession of the same ever since.
Various other evidence was introduced by
the defendants, the object of which was to es-
tablish that Walker's line bad been for a long
time acted upon as the boundary line between
North Carolina and Virginia, before the sepa-
ration of Kentucky and Tennessee therefrom;
and that after that separation Tenneasee had
dontinued to exercise exclusive jurisdiction up
to that line, with the acquiescence of Ken-
tucky, until 'he compact of 1820. As our
judgment turns upon considerations distinct
from tlie nature and effect of that evidence, it
does not seem neceBsary to repeat it on the
present occasion.
By the compact of 1S20, between Kentucky
and Tennessee (art. l),it was agreed that Walk-
er's line (which was run in 1780) should be the
boundary line between those States; and by
the siitb article it was further agreed that
"claims to land east of Tennessee River, be-
tween Walker's line and the latitude of thirty-
six degrees thirty minutes north, derived from
the State of Virginia, in consideration of mili-
tary services, shall not be prejudiced in any re-
spect by the eetabliebment of Walker's line;
but Budi claims shall be considered as right-
fally entered or granted, and the claimants
may enter upon said lands, or assert their rights
in the courts of justice without prejudice by
lapse of time, or from any statute of limitations
for any period prior to the settlement of the
boundary between the two States; saving,
however, to the holders and occupants of eon-
tlicting clainu, if any there be, the right of
showing such entries or grants to be invalid,
and of no effect; or that they have paramount
and superior titles to the land covered by such
SOB*] 'Virginia claims." By anotber article
(the «th) it was further of^reed that "all lands
now vacant and unappropriated by any person
•laimliig t« hold under the States of North Car-
olina or Tenneeaee, east of the Tennessee Uver,
and north of the parallel of latitude of UiirtT-
six degrees thirty minutes north, shall be tLa
property of aild subject to the dispoaition of
the State of Kentucky."
Upon the whole evidence in the eaoae, the
court instructed the jury "^hat, aa by the eom-
pact between Kentucky and Tennessee, the
boundary line of thirty-six degrees thirty mia-
utes north waa flzed several mites aonth of
Walker's line, and of the land in controveray,
the titles of the defendanta were subject to the
compact, and could only be sustained under iL
That the State of Tennessee, by sonctionlnf
the compact, admitted in the most solemn form
that the lands in dispute were not within her
jurisdiction, nor within the jurisdiction t^
North Carolina at the time they irere granted;
and that, consequently, the titles were iubieet
to the conditions of the compact." To thia
opinion of the court the defendants ezoepted,
and the validity of this exception eonstitutce
in favor of the ptaintiSs upon this opinion, ■
judgment having been rendered In oonfonnity
thereto in the court below.
We are of opinion that the instruction girea
by the court below Is entirely correct. It can-
not be doubted that it is a part of the general
right of sovereignly belonging to independent
nations to establish and fix the disputed bound-
aries between their respective territoriea, and
the boundaries so established and fixed by
compact between nations become conclusive
upon all the subjects and citizens thereof, and
bind their rights; and are to be treated, to all
intents and purposes, as the true and real
boundaries. This is a doctrine univerwUly
recognized in the law and pracJce of natioDS.
It is a right equally belonging to the State* of
this Union, unless it ha* been surrendered un-
der the Constitution of the United States. So
far from there being any pretense of such
a general surrender of the right, that it is ex-
pressly recognized by the Constitution, and
guarded in its exercise by a single limitatios
or restriction, requiring the eousent of Coa-
gresB. The Constitution declares tbat "no
State sball, without the consent of Congrraa,
enter into any agreement Or compact witk
another State;" thus plainly admitting UtMt,
with such consent, it might be done; and ia
the present instance, that consent has been «x-
prtasly given. The compact, then, haa fall
validity, and all the 'terms and condi- ['110
tions of ft must be equally obligatory upon tho
oitizena of both States.
Independently of thia broad and general
ground, there are other ingredients in tlM
present case eoually decisive of the merit*.
Although, in the compact. Walker's line W
agreed to be In future the boundary betweca
the two Statee, It is not so established as hav-
ing been for the past the true and rightful
boundary; on the contrary, the compact admit*
the tact to be the other way. While the ooia>
pact cedes to Tennessee the jurisdiction up to
Walker's line, it cedes to Kentucky ell the mm-
appropriated lands north of the latitude of
tbirty-six degrees thirty minutes north. It thus
admita, What is In truth nndenlable, that tte
true Mid legitimate bouadu; ot North Cam-
18S7
'. Ihb ItecoiAxn' homsnuM ImsBAiioi Ookfu
tl«
Mm fe la that panilld ot latUnda; kad thii kite
fe declared in tbe cbarter of Charica IL and in
tt« ConstilutioD of Xorth Carolina to be iti
tma and original boundary. It goei farther and
ftdmitl that all claima under Virginia to lands
north of that boundary (hall not be prejudiced
by tbe eatabliahment of Walker*! line, but such
•iaima »hall be considered bh rightfully entered
lietween Kentucky and Tennessee ii the lati
tilde of thirty-iix dfgreei thirty minutea; and
that Walker's line ie to be deemed the tme line
anij for the purpose of future jnriidieti
In this view of the matter It is perfetrtlj
clear that the grants made by North Carolina
and Tennessee, under which the defendants
■laimed, were not rightfully made, because
thej* were originally beyoM her territorial
boundary; and Chat the graLt under which the
claimant's claim waa rightfully made, beoiUM
it waa within the territorial boundary of Vir-
|;inia. So timt upon this narrower ground> if
it were necessary, aa we thinlt it U not, to
prove the case, it is clear tliat the instruction
of the court was correct.
And this dispoeus of the argument which has
been pressed upon us, that it Is not competent
for a State, by compact, to devest Its citizena
of their titles to land derived from grants under
the State, and that it is within the prohibition
of the Constitution that "no State shall pass
any law impairing tbe obligation of contracts."
If the StatL-a of North Carolina and Tennessee
oould not rightfully grant tbe land in question,
and tbe States of Virginia and Kentucky could,
tbe invalidity of the grants of the former
arisoB, not from any violation of the obliga-
tion of the grant, bu*. from an intrinsic defect
of title in the States. We give no opinion,
til*] because it is unnecessary in 'this eaae
whether this prohibition of the CtHistitution it
not to be understood aa necessarily subject to
the exception of the right of the States, under
the same Constitution, to make oompacU with
each other, )n order to settle boundaries and
other disputed rights of territory and jurisdic-
In the progress of the trial one or two otbei
objections were made, which ^lay require some
notice. The defendants objected to the intro-
ductioD of the will of Frederick Rohrer, under
whieh the plaintiffs claimed as devisees, _._ _ _
denee; drat, because the probate and certificate
of that will (it having been made and proved in
Pennsylvania) were not such aa to authorize its
registration in the State of Tenneaaeei second,
because the will was not registered in the State
of Tennessee until after the institution of this
suit. The court overruled the objection. iJut
it doea not appear that any exception was
taken to the opinion of the eourt upon this
point at the trial. On the emitrary, the record
atatea that "no eiception to the opinion of the
eourt permitting the will to 1m read waa taken
tal the progress of tbe trial, nor waa it stated
that tbe right to do so was reaerred- The
practise of the court is for exceptions to be
taken after trial, if deemed necessary." Un-
der these circumatancea, aome difficulty baa
arisen aa to the propriety of taking any notice
made and orerruled aa to the admission of aTl-
denee, and tbe party does not take any excep-
tion at the trial, he is understood to waive ft.
The exception need not, indeed, then, be put
into form, or written out at large anil signed;
but it is sufficient that it is taken, and the ri^ht
reserved to put it into form within tlie time
described by the practice or rules of the court
We do not find any copy of the will or any
probate or certificate thereof in the record, or
any regiatration thereof; and it is, llievefurc,
imposBible for us to say whether the p-ound as-
sumed in the first part of the objection is well
founded or not. This leads us strongly to the
Inference that the objection was Intcnlianally
waived at the trial. The second ground Is
clearly unmaintainable; for, if the registration
was rightfully made in Tennessee, it baa rela-
tion backwards and the time of the registra-
tioQ is wholly immaterial, whether before or
after the Institution of the suit.
Another objection made by the defendants
at the trial waa to the evidence of title oilered
by the lessors of the plaintifT, upon the ground
that this title was a tenancy in common, which
would not in *law support a joint [*313
demise. Thia objection was overruled, with
an intimation that the point would ba consid-
ered on a motion for a n«w trial. No excep-
tion was taken to thia ruling of the eourt, and
the new trial was, upon the motion, after-
wards refused. The party not taking any ex
ception, and acquiescing in the intimation ol
the court, must be understood to waive tbe
rint aa a matter of error, and to insist upon
only as a matter for a new trial. But it Is
unnecessary to decide the point upon this
ground; for, in the State of Tennessee, the
uniform practice has been for tenants in com
mon in ejectment to declare on a joint demise,
and to recover a part or the whole of the prem-
ises declared for, according to the evidence of
title adduced. Thia was expressly decided by
the court in Barrow's Lessee v. Nave (3 Yerg-
er's Bep. 227, Z2Sj ; and on that octasion llii'
court added that this practice had never been
drawn in question as far as they knew, or oould
ascertain; and, in fact, no other, probably, could
be permitted after the Act of 1801 (ch. S, sec.
60), which provided "that after issue joined in
any ejectment on the title only, no exceptions
to form or substance shall be taken to tbe dec-
laration in any court whatever."
The juiigraent of the Circuit Court ia there-
fore afllrniM with coata.
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United States for the District of Weat
Tennessee, and was argued by counsel; on con-
sideration whereof, it is now here ordered aad
adjudged by thia court that the judgment of
the said Circuit Court in thia cause he, and tae
same is hereby affirmed with costs.
•WILLIAM WATERS,
Insurance^barrat ry — proximate
Ipsunuiea. Tbe Steamboat Uoness ■
Soma Odor or nn tlnnp Siatm.
•a bet Tonim oB tbe vrt*n waten, paitlevlarlr
fram New Orlnni to Natbltoche* on Red BImt
•Bd (liiewI]i>TP, "till! MI«Murl and Upper Ulnlnlppl
eiceiiTcd" for (welTe maalhs. One of the perils
Iniureil aanlnat mm '■(Iro," Tbe vewrl wan lost bj
of giinrowdp ■■" ------
which were ciTtined to thl* court: 1. Don tht
poller coTet the lose of th» boat bj a Are niu«ca by
the barratrr oC tbe masterT S. Doei tbe poller
coTer the loei of the boat by fire caiiJu-d by the n»ff-
llgencB. cai-eLeisneM. or nnikllfnineia p' tbe o*s-
e WIS dlreettj and Im-
meninreir cnimr-a nv inc imrratry of the mMter
and crew, as the efficient agente when the Ore waa
eommunlcaied, and occasioned by the direct act
and acencT o? tbe mnaler and cr?ir, IntentloDallT
don> from a barrntroui purpoM. Is not a loaa with-
in the poLlcy. It barratry ts not Insured agalnBt.
If the EDBiter or crew BhouM barratroailr bore
holes In the boMom of a TeaKl. and ahe ibould
therehT be fllled with water and sink, the lom
would prOTierly 1* deemed a lofsbj barratrrj
water should co-operate In
land baa (or a great lensth of time preralled. that
losses occasioned bT the mere fault or neilleence
of tbe BBBured or hla scivanla. imaffecled \)y fraud
or deelRD, are wl'.hia the ^ralectton of the policy*
It H a well-eetabllshed principle o( the eoniDOn
law that Id all casea o( loai we are to attrllnite it
lo the nroilmate cause, and not to the remote
canae. This has become a mailm to BOTerii cuseE
arlslnn under polli-Iei of Insnmnee.
In tbe case of the CTo'n'nhlii Insurance romnany
V, I^nrence. 10 Peters. D07, this conrt lhou|bt that
la marine policies, whether nintalninc the risk of
barratry or not, a losa. whose proilmate cause was
a peril Insured asatnal. Is wltbla the protecllan of
tbe policy : notwlthstandtai It mlsht have been «•
coaloned, remotely, by tbe nesllEence of tbe mas-
ter Bud msrluera. The court have aeen no reason
lo chaaHe lliat opinion.
Aa tbs eiptoslon on board tb« LtontH wa«
caused by Bra, tbe Bra wu '-ha proximate tauM
of tbe loaa.
If taking ptnpowder on board a Teuel Inanrvd
BcalDSt Are was not Justified by the usii^e at the
(rade. and therefore wsi not coutemplfli.'d aa a
risk by tbe poller, there mlgbt tie areat rcaaon to
contend that If It Increased the rid tbe loss waa
not covered by the policy.
• AN a oertlflcate of division from the [*«I4
U Clmiit Court of the United Statea for Um
DUtrict of Kentucky.
' Tbe plaintiff, a citUen of the Stat* of Louisi-
ana, on tba 12th day of September, 1832,
caused inaurance to b« mad« by the Klerehanta'
Louisville Inmiruice Company, at the city of
Louitville, in tbe State of Kentucky, in the
sum of aix thouaand dollar*, on the steamboat
Uoneaa, her ergine, eto., to navigate the west-
ern waters usually navicated by ateamboata,
etc., the assured having the privilege of pladng
eompetent inBsterB in cominaiid at any timej
the insurance to continue for twelve monthi,
until 12th September, 1S33.
and all other logiics nnd niisfartuncB which ahall
come to the hurt or detriment of the steamboat,
her eugine, tackle, and furniture, according to
tho true intent and meaning of the policy."
An a,ction wai instituted in the Circuit Court
on this policy by William Waters, the aasitrcd,
to November Term, 1B36, and the pbiiiitiff
averred in the declaration an Interest in tbe
Bteamboat LionesB.at thetimeof the inminmcf,
and up to her losi, of sixteen thousand dollars;
that the said steamboat Lioness, her engine,
tackle and furniture, after the rxecution of said
policy, and before Its terminntion. to wit, OD
the IBtb of May, 1833, on Red River, about
one mile below the tnouth of Bon Uieu River,
whilst ahe was on her voyage from New Or-
IsKna to Natch itochPB, Louisiana, on Red River,
Jarralrv, what Is, The rtsk
Coiered^bf marine polldei-
ot bsriBtrr 1b ugually coiered bj ma
Uarralry (a ao unlawful, fiaudulent,
tirt of the msitrr, mariners, or other e _.
irross mlEConduct, or very grou and culpable
Ugence, contrary. In ellher case, to their dul
1 rhll. on lUE.
WlUcs. JUBl
I the Toyaiie or adventure,
follows :
the maa
1b every speclei of fri __.__...,_
r of tbe ship by which the frelehlera or
t Injured, and In (bla light a criminal
»Tuiion Is barratry. If tbe derlatlon be without
their eonaent." Lockyer v. Omey, 1 Term It. 2S0.
Lord MausBcId says: "I take the word to have
■ ' '-trodured bv the Itallaoa. In the
r the word "baratrara* meana to
VaHego t. Wheeler. Cbwp. l
It comes from bare'
dober. -* '- —
itRilflei fraoa and
lid of tbe master.
- - ■ 8 Mod.
' fraiu of
Knight T. Cambrldi
L'30 : 2 Ld. Kaym. imv.
To make barratry there most be aomethluK
criminal nature, as well as a breach of ~ — *
Btemma v. Brown. 2 Strange. IITI.
A deviation of a veaael from the voyage li
through tbe Ignoi ' ■•^- '- — '"
_ voids
Phyn V. Royal Eichange Ina. Co. 7 Term It, S
Lord Ellenborough says "a frauduleol breach
duty by tbe master. In respect to bis owners, or.
other wordB, a breach of duty In respect t
—■ - rlmloal IntenC o:
V. Rowcroft, 8 I
0 diffarcpes ta tbs r
thiog. whether the
the !-"■
.. , -. „Btll Of I.
t was tbe master's duty to olwy, i
r vlalates a liloekude thro
'lededer v. Del. Ina. I'a.
: 2 Wash. R. 41.
ne may be lu
I by another.
prejudice of the owner of the vessel, without hir
privity or consent. Kendrlrk v. IM-lafletd, 3 Car
S7 : Mclntyre v. Bonae, 1 Jobna 220.
Includes every species or fiaud, committed u]
the master, to the Injury of Che ownera or ahlp-
pers. Cook t. Commercial Ins. Ca II Johns. 40:
Wa'den v. Firemen loB. Co. 12 Johna. 129; Gala
V. I'bcenli Ins. Co. 13 Johns. 161.
As to what partlculsr sets ere, see Arcb*lan|o v.
TbompBon, £ Camp. tiO: (ioldsmldt v. Wbltmors,
S Taunt &08 : Brown v. Un. Ina. Co. of Mew Lon-
. , ._w Journ. a-2<
L. BT4 ; 2 Condys
"Voi'i
houD V. Ins. Co. ot Penn. l — ..
las. Co. 3 Johns. Cas, ISO : Rottertion t. Bwaf,
1 Term R. 12T ; 8 Kast, 138 ; tltion *. Raid, I
Barn, k A. B9T : S, C, I Dowl. A R. Wl ; ROMXM
V. Carson, 8 Taunt. 684; Itoaa v. Byron, t Tsi*.
WA-rau T. Thb UnoHAMn' Umurtu* IimnuRai Ooivajit.
tl4
vera, by tba ulventaru utd parlla of Bra and
Uw rirer, exploded, sunk to the bottom of Eed
River Kfuresnid and utterly deitroyed, ao m to
eauee and make it a total lou. Aod tbe plain-
tiff averred that said steamboat LianeBi wai, at
tbe time of the wcploaioc, ainking and dettrue-
tion aforeaaid, by tbe pcrila aioreiaid, auffi-
ciently found in tackle and appurt«nancea
tberato, and completely provided with master,
oIBcera and crew, and in good order and eoD'
dition, and perfectly seaworthy.
The deeluratloD also averred that a regular
protest of the manner in wbleh the toss of
Teaui took place was made, and the same, with
Coof of the plaintiff's interest, were delivered
the defendants.
To this declaration the defendants filed tbe
following pleas: 1. That tbe offieer* and
new of the Lioness, at the time of ber ezplo-
■ion and sinking, so negligently and carelessly
eonducted tbemselves in managing and attend-
ing to the safety of the eargo on board, that
316*] 'the steamboat waa, by means of Are
negligently and carelessly communicated to
g;nnpowder in the bold by tbe officers and
mw, bloivn up and destroyed.
5. Tbat tbe Lioness waa loaded in part with
gnnpowder, and tbat the officers aod crew, or
■ome of tbem, carelessly and negligently carried
• lighted ear^e or lamp into tlie bold where
tbe powder was stored, and negligently handled
tbe candle or lamp at tbe time that the powder
iraa exploded; and thereby produced the explo-
sion and destruction of the said steamer.
3. Tbat tbe Lioness was in part loaded with
^npowder; and the same was so unskilfully,
negligently, and carelessly stowed away in tbe
boat by the officers and crew, or some of them,
tbat the ^npowdcr took flra by reason of the
■aid unskilfulner- -—'!""— -".
And the boat t
■troyed by eapli
4. That the Lioness received, and had on
board a quantity of gunpowder at tbe time of
tbe explosion, which increased tha risk of tbe
inauiers. contrary to tbe true intent and mean-
ing of the policy, by which the insurers were
discbarged from the obligations of the policy,
6. Tlittt the lou of the Lioness was caused
by tlie ofiicers and crew, or some of them, care-
Maly and negligently carrying a lighted candle
or lamp into the bold; and so negligently or
«u«lessly carrying the same, aa tM explosion
of tbe vessel was thereby produced.
5. That tbe lose of the boat was caused by
tbe eonduet of the ofBeers, managers and crevr
of tbe boat, in taking and receiving on board
larse quantities of gunpowder, and by careless-
ly keeping tbe same; m consequence of which
the gunpowder became ignited while on board
the boat, and by its explosion caused her loss
•nd destruction.
To these pleas the plaintiff demurred, and
tba defendants joined in demurrer.
On tbe argument of the eause the following
queations and points occurred, upon which the
fuAgBt of tbe Circuit Court were divided in
opioioni and the same, at the request of the
defendants, were stated, and ordered to be
wrtifled to this court:
Int. Does the policy eovw a loam of the boat
by a flra causad by IM buratry •! tba Baatar
■■d arewl
• Xi. ad.
U. Does tha policy of Insarancs cover a loss
of tbe boat by flra 'cansed by the negli- {*ai<
genoa, carelessness, or unskilfuiness of the
nuater and orew of tbe boat, or any of themi
3d. Is the allegation of the defendants in
their pleas, or either of them, to tbe effect that
tbe fire by which tba boat was lost was caused
by the carelessness, or the neglect, or unskilful
conduct of the master and crew of the boat, a
defense to this action!
4th. Are the said pleas, or either of them,
sufficient t
Tha case was argued by Mr. Cnttenden for
tbe defendants. No counsel appeared for tha
plaintiff.
Mr. Ciittcaden said, aa to the first question,
the only inquiry that seems neoesnary to a sat-
isfactory solution or answer to it, is, whether
barratry is insured against by the policy.
Barratry is a peculiar and distinct risk, tor
which insureii are made responsible by express
stipulation only. Orim v. Fhoenix Ins. Co.
13 Johns. Rep. 461. And, accordinglv, in the
common forms of marine policies it is always
expressly ambntoed, and aescribed by its ap-
propriala and technical denominatian — Barra-
try.
Id this policy there Is an enumeration of the
risks, and barratry is not included. Its omis-
sion is equivalent, in legal interpretation, to its
express exclusion: expresaio unius est exclusio
alterius.
The general clause in the policy that follows
the enumeration of the risks, to wit, "and ali
other losses and misfortunes," etc., has refer-
ence only to "leases and misfortunes" pro-
oeeding from tha enumerated risks, and la not
Intended or to be construed aa adding other
risks, or enlarging the perils that the bisurcra
are to bear. They are nothing more than
words used out of abundant caution, to give
full affect to the previously enumerated risks,
for which alone the underwriters are rcsponsi
ble.
It may, therefore, we think, be safely as-
sumed that the policy, in this ease, contains no
insurance against barratry; and we suppose it
must follow that If the defendants did not in-
sure against barratry, they cannot be liable for
a loss by fire caused by barratry.
2d. As to the other three questions, It is sup-
posed tbat they will all be virtually settled by
tbe decision of a single ^intj tbat is, whether
the defendants, there being no insurance against
barratry, are liable for a loss by fire arising
from the negligence of tbe a«iured or his
agents, the master and crew!
*The defendants contend for tbe neg- [*119
ative of this question.
If there be one case, turning on tbat very
point, in which such a liability has been ad-
judged to exist, we have not met with it. The
liability of underwrite™ for such losses, where
barratry also is included in tbe policy, is sup-
posed to have been settled in England as late as
the year 1B18 by tbe decision in the case of
Busk V. The Royal Exchange Insurance Com-
pany, 2 Bamwall A, Alderson, 72, and that de-
cision was adopted and followed by this court
in the case of the Patapsco Insurance Company
V. Coulter, at the January Term, 1S30 (3 Peters,
222), contrary to the ease of Grim v. Tha
Fbfenix Inauranaa Company, 13 Johns. lUp.
MS
117
SonUEHK CoUtl W THB UBlIBt SuitS.
4SI, and tSl the Amerliian caMi on the Mune
But the English caae, and the Mse In thfi
court, Wve nndetermineil the question of lia-
bility where there ia no inaurance against bar-
ratrj. In the latter case it la said that ques-
tion "need not here be considered;" and in the
Enclisb case, the reasoning of the court to ea-
tnUIsh the liability, where barmtr; is insured
against, ia strong against the eijatenee of any
■ueh liability where there la no insurance
against biirratry. The court say, "where we
And that the.v (the ssBurers) make themselves
answerable for the willful miecondutt (barra-
try) of the master in other cases, it is not too
much to say that they meant to indemnify the
asaui-ed ngainat the fire, proceeding from the
negligence of the master and mariners."
Thus, the undertaking to indemnify against
the effects of negligence is inferred, eicluaive-
ly, from the express agreement to be answera-
ble for barratrous conduct: an argument preg-
nant with the conclusion that, but for the tn-
sursDcc against barratry, there would have been
no responsibility on the Insurers for a loss by
negligence; and such, we insist, ia the correct
doctrine recognized and sanctioned by elpmen-
Ury writfra. Marshall, IS8, 121, and Philipa
224 to e27. And by adjudged eaaea. Grim
r. Phcenix Insurance Company, 13 Johna, Rep.
4fil, and the cases there cited of Vol & Graves
V, The United Insurance Company, 8 Johns.
Casea, ISO; and Cleveland v. The Union Insur-
ance Company, 8 Mass. Rep, 30S, etc., etc.;
Toulmin t. liiglis, 1 Campbell, 421; Fepon «.
Cope, 1 Campbell, 431; Toulmin v. Anderson, I
Taunton, 227; and Boyd v. Dubois, S Campbell,
133; the case of Fhyn t. The Royal Exchange
Association Company, 7 Term Rep. 605. And
many other cases proceed on the same principle.
It is admitted that the doctrine for which
918*] the defendants in this 'case contend,
is, seemingly, in opposition to some remarks
that fell from this court in the late caae of the
Columbia Inaurance Company of Alexandria v.
Lawrence, 10 Peters, SOT. It Is reapectfully
iuggpatt'd that those remarks (entitled In all
other respects to the highest consideration] re-
lated to a point not involved in the ease, or nec-
essary to its determination; and were, proba-
bly, therefore, less weighed and considered by
the court. The point was not involved be-
cause that was an insurance of a house against
Are; and, in such cases, the books and authori-
ties all seem to concur in holding the insurer
responsible for losses occasioned by the negli-
gence of servants, in contradistinction to the
res^nsjbility reeulting from marine policies.
It 18 hoped, therefore, that the question now
under consideration may be regarded as an
open one, neither ooncluded nor affected hy
what tell from the court in the case last men-
tioned.
Furthermore, the rule for which we contend
— exempting inauiers from liability for the neg-
Hgenoe of the assured and his agents — is sup-
ported hy its analogy to the familiar and well
established doctrines applicable to bailments
generally; and is sanctioned by — ''
and tbeir agents more diligent and more eare-
Mr. Justice Btory dellyered tha apfadaa al
This ta a ease eertifled to us from the Chflolt
Court for the District of Kentucky upon certain
questions upon which the judges of that court
wei-e opposed in opinion.
The action wai brought by Waters, thi
Elaintiff, on a policy of insurance underwrittwi
y the Mercluints' Louisville Insurance Com-
pany, whereby they insured and caused to ba
meured, the plaiiitiir, "lost or not lost, in tbt
sum of te,0O0. on the ateamboat Lioneaa, en-
gine, tackle, and furniture, to navigate th>
weatem waters usually navigated by ateam-
boats, particularly from New Orleans to Natch-
itoches on Red River or elsewhere, the Hissonil
and Upper Hissisaippi excepted (Captain Wa-
ters having the privilege of placing competeat
masters in command at any time, $0,000 bains
insured at New Albany, Indiana), whercol
William Waters is at present master; banning
the adventure upon the said ateamboat from
the I2tb of September, 1832, at twelve o'clock
meridian, and to continue and endure until tbs
12th of September, 1833, at twelve o'clock ma-
ridian (twelve montha)." The policy further
■provided that "it ahal! be lawful for [*Slt
the said steamboat, during said time, to pm-
ceed to, touch and stay at, any point or pomt^
place or places, if thereunto obliged by streaa
of weather or other unavoidable accidents, also
at the usual landings for wood and refreah-
ments, and for disclmrging freight and passen-
gers, without prejudice to this insurance.
Touching the adventures and perils, which tbs
aforesaid insurance company is contended to
bear; they are, of the rivers, Are, enemies, ^-
riment, or damage of the said steamboat, en-
gine, tackle, and furniture, according to the
true intent and meaning of this policy." The
premium was nine per cent. The declaratloi
avers a total loss; and that the said steamboat
and appurtenances insured, "were, by the ad-
ventures and perils of fire and the river, ax-
pinded, sunk to the bottom of Red River aJEora-
aaid, and utterly destroyed."
The defendants pleaded six several pleas, to
which a demurrer was put in by the plaintiff;
and in the consideration of the demurrer, the
following questions and points occurred:
1. Does the policy cover a loss of the boat
by a fire caused by the barratry of the maatM
2. Does the policy cover a loss of the boat ^
fire caused by the negligence, carelessnesa, w
unskilfulness of the master and crew of the
boat, or any of theuT
3. Is the allegation of the defendanta in their
SI ess, or either of tbem, to tbe effect that ths
re by which the boat waa lost was caused by
tbe carelessneas, or the neglect, or unakilfiu
conduct of the master and crew, a defenae ta
this action t
«. Are the aaid pleaa, or either of them, nf-
ficientf
These qneations constituted tbe potnta •■
which the deciaion of tbe Judges took plana la
the court below, and they are those nftm
which we ar« now called to deliver our oi^-
ion upon the argument had at the bar.
itt upon the argument had at the bar.
As we underawnd tbe firat ^ueation.
I II.
un
Watbu v. Thi MooHAitTs' LounnixB IirauBARca Ooupaitt.
■umra that tbe fire waa dircetl; and tmmedi-
atelj caused b; tbe barratry of the master and
enw, as the eflicient agrnls; or. in other wnrda.
that tbe Sre was comniuniratBd and ocraaioncd
by the dircrt act and agency of tbe master and
crew, intentionally done from a bairatrouii pur-
poae. In thia view of It, we have no heaita-
tion to aay that a toM by fire caused by the
bRiratiy of the master or crew ia not a Iom
within the policy. Sneh a lose i» properly *
loai attributable to the barratry as it*
120*] 'proximate cause, ea it concura as the
efHcient agent, with the element, eo bstanti,
when the injury ie produced. If the master
or crew should barratrously bore holes in the
bottom of the veaael, and the latter should
thereby be filled with water and eink, the loss
would properly be deemed a loss by barratry,
and not by a peril of the aeae or of rivera,
though the flow of the water should eo-opcrate
in producing the sinking.
The second question raisps a different point,
whether a loss by fire, remotely caused by the
negligence, oreleasness, or unakilfulness of
the master and crew of tbe veasel, is a loss
within the true intent and meaning of the pol-
icy. By una kit fulness, as here stated, wc do
not underatand in this instance a general un-
nliiirutncss, such as would be a breach of the
implied warranty of competent skill to navigate
and conduct the tcbscI, but only unskilfulnese
tn the particular circumstances remotely con-
nected with the loss. In this seme it is equiTa-
lent to negligence or careleaaneBs in the execu-
tion of duty, and not to incapacity.
This question has undergone many discua-
•lons in the courts of England and America,
and has given riae to opposing judgments in
the two countries. As applied to policies
against ftre on land, the doctrine has for a ^at
length of time prevailed that losses occasioned
by the mere fault or negligence of the aisured
or his servants, unaffected by fraud or design,
ara within tbe protection of tbe policies, and as
■neb recoverable from the underwriters. It is
not certain upon what precise grounds this doc-
trine was originally settled. It may have been
from the rulps of interpretation applied to such
policies containing special exceptions, and not
excepting this; or it may have been, and more
probably was founded upon a, more general
ground that as tbe terms of tbe policy covered
risks by fire generally, no exception ought to
ba Introduced by construction except that of
fraud of the aasured, which, upon the princi-
e'as of public policy and morals, waa always
be implied. It is probable, too, that the
eonaideration had great weight, that otherwiae
auch policies would practically be of little im-
portance, since, comparatively speaking, few
losaes of this sort would occur which could
not b« traced back to some carelessness, neg-
lect, or inattention of the members of the fam-
ily.
Be the origin of it, however, what It may,
the doctrine is now flrmtyostabliahed both m
England and America. We
insider and decide the point at the last term
Ml*] in tbe caaa of The ■Columbia Insur-
ance Company o' Atexandria ¥. Lawrence, 10 Pe-
teri'a R. 617, S18, which waa a policy against
the risk of fire on land. The argument ad-
dreaaed to ua on that oeoaMoa enoeavored to
9UU,
eatabliah the proposition that there was mo real
distinction between policies against flru on land
and at aea, and that in each r«ae the same risks
were included; and that as the risk of lots by
nre occasioned by negligence was not included
in a marine policy, unless that of barratry waa
also contained in the same policy, it followed
that as the latter risk was not taken on a land
policy, no recovery could be had. In reply to
that ailment, the court made the eomments
which havo been alluded tu at the bar, and tha
correctness of which it becomes now necessaty
to decide.
It is certainly somewhat remarkable that tbe
question now before us should never have been
directly presented in the American or English
courts, viz., whether, in a marine policy (aa
this may well enough be called), where the risk
of fire is taken and the risk of barratry is not
(as ia the predicament of the present case), a
loss by fire, remotely caused by negligence, is
a loss within the policy, but it is scarcely a
matter of lesa surprise, considering the great
length of time during which policies against
both risks have been in constnnt use among
merchants, that the q\ieation of a loss by nei-
ligence in a policy against both risks, should
not have arisen in either country until a com-
paratively recent period.
If we look to the question upon mere prin-
ciple, without reference to authority, it is difD-
cult to escape from the conclusion that a loss
by a peril insured against, and occasioned by
negligence, is a loss within a marine policy;
unless there be some other language in it which
repels that conclusion. Such a loss Is within
the words, and it is ineumbent upon those who
seek to make any exception from tho words to
show that it is not within the intent of the
policy. There is notliing unreasonable, unjust,
or inconsistent with public policy, in allowing
the injured to insure himself against all losses
from any perila not occasioned by hit own per-
sonal fraud. It was well observed by Mr.
■lustice Bayley, In delivering the opinion of the
court in Busk v. The Boynt Exchange Assur-
ance Company, 2 Barn. & Aid. T.I. after re-
ferring to the general risks in the policy, that
"the object of the assured, certainly, was to
protect himself agsjnst ell the risks incident to
a marine adventure. The underwriter being
therefore liable, prima facie, by the express
terms of the policy, it lies upon him to dis-
charge himself. Dties he do so by showing
that the fire 'arose from the negligence [•823
of the master and mariners!" "If, indeed, th<
negligence of the ma.nter would exonerate tha
underwriter from rc'siionsibility In I'asc of a
loss by fire, it would alau in cases of a loss by
capture, or perils of the sea. And it would,
therefore, constitute a good defense in an ac>
tion upon a policy to sbow that the captain had
misconducted himself in the navigation of tha
ship, or that he bad not resisted an enemy to
tbe utmost of hia power." There is great
force in this rerjoning, and the practical incon-
venience of carving out such an implied excep-
tion from the geneial peril in the policy, fur-
nishes a strong ground against it; and it ie to
be remembered that the exception is to be
created by couj^truction of the court, and is not
found in tbe terms of the policy. The reasons
of public policy, and the preaumptioD of In-
Oomr » TBI Unm Btati
tcntion In th« parties to make auch an «zoep-
tloD, ouglit to be very clear and unequivocal, to
JDttif]' the court in aurh a course. So far
(rom any auch policy or presumptiou being
tlekr and unequivocal, it may be affirmed that
they lean the other way. The practical Incon-
vanieuce of creaUug such au exeeotion would
be very great. Lord Tenterden alluded to it
in Walker v. Maitland, 6 Bam. ft Aid. 174.
"No decision (sail! he) can be dted wherein
such a caae (the loss by peril of the aea) the
imderwriten have hern held to be wccueed in
conaequence of the loss having been remotely
OCCMioned by the negligence of the crew. I
am afraid of laying dawn any auch rule. It
will introduce an infinite number of question*
■a to the quantum of ca^e, which, if used,
might have prevented the loaa. Suppose, for
Instance, the master were to send a man to the
mast-head to look out, and he falls asleep, in
consequence of which the vesael runs upon a
rock, or is taken by the enemy; in that case it
might be argued, aa here, that the tosa was im-
putable to the negligence of one of the crew,
and that the under writers are not liable,
liiese, and a variety of other such tjueationa
would be introduced, in case our opinion were
111 favor of the underwriters." His lordship
might have stated the argument from incon-
venience, even in a mare general form. If
negligence of the master or crew were under
such circumstances a good defense, It would
be perfectly competent and proper to examine
on the trial any single transaction of the whole
voyage, and every incident of the navigation
of the whole voyage, whether there was due
diligence in all respects, in hoisting or taking
in sail, in steering the course, in trimming the
ship, in selecting the route, in stopping in port.
In hastening or retarding the operations of the
S23*] voyage; 'for all these might be remote-
ly connected with the loaa. If there had been
more diligence, or less negligence, the peril
might have been avoided or escaped, or never
encountered at alt. Under such circumstances,
tiie chance of a recovery upon a policy for any
loss, from any peril insured against, would of
itself be a risk of no inconsiderable hazard.
This is not all: we must interpret this in-
atmmeat according to the known principles of
the common law. It is a well established prin-
ciple of that law that in all cases of loss we
ai-e to attribute it to the proximate cause, and
not to any remote cause; causa proxima non
remota spectatur, and this has become a
maxim, not only to govern other c&sea, but (as
will be presently shown) to govern eases aris-
ing under policies of insurance. If this maxim
not be ao applied w« are unable to see any
reason.
Let us now look to the authorities upon the
point. In Busk v. The Royal Exchange As-
auraoce Company, 2 Bern, h Aid. R. 73, the
very point came before the court. The policy
covered the risk by fire, and the qnestlon made
was whether the fact that the loss of the ship
by Bre, occasioned by the negligence of the
crew, was a good defense. The court held
that it was not. In that case the policy alao
Included the risk of barratry, and It ia now
Mid that the dedsion of tbe court turned
•••
wholly upon that consideration, the eoort to-
ing of opinion that in a policy where the oa-
derwriter takes the superior risk of barratry.
there is no ground to infer that he does not
mean to taJco the inferior risk of aagliganeej
it Is certainly true that the court do rely in
their judgment upon this drcum stance, ud it
certainly doea fortify It. But there is no ma-
son to say that the court wholly relied upon it,
and that it constituted the exclusive ground of
the judgment; on the contrary, Mr. Justice
Bayley. in delivering the opinion, takes paiaa
in the earlier part of that opinion to state, and
to rely upon the maxim already stated. Ha
said, "in our law, at leaat, there Is no author-
ity which says that the underwritera are not
liable for loss, the proximate cause of which la
one of the enumerated riskai but the remote
cause of which may be traced to the miacoB-
duct of the master and mariners." "It is cer-
tainly a atrong argument against the objeetlim
now raised for the first time, that in the great
variety of cases upon marine policies, which
have been the subjects of litigation in courts at
juatioe (the facta of many of which must have
presented a ground for such a defense) no
'such point ha* ever been made." In [*IS4
Walker v. MaitUnd, 5 Bam- A Aid. ITS, a
similar question was presented, whero the
maxim was still more strongly indicated, as
the general, though not a* the exclusive ground
of the judgment; the case of Bishop v. I'ent-
land, 7 Barn, ft Gresw. 210, turned exeluaivelj
upon the very ground of the maxim; and not
single judge relied upon the policy, as con-
lining the risk of barratry. IndcMl, it do«a
on that occasion, put the former casca as hav-
ing been expressly decided upon this maxim.
His language was, "the cases uf Busk v. The
Royal Exchange Assurance Company, and
Walker v. Maitland, eaUblish aa a principal
that the underwritera are liable for a loss, the
proximate cause of which la one of the enu-
merated risks, though the remote cause may be
traced to the negligence of the master aad
Then came the ease of The Patapsco Insur-
ance Company v. Coulter, 3 Peters's R. 222,
where the loss was by Are, and barratry also
was inaured against. The court on that occa-
sion held that in such a policy, a lose whiek
was remotely caused b^ the manter or the
crew, was a risk taken m the policy, and the
doctrine in the English cases already cited waa
approved. It is true that the court ia^ great
atress on the fact that barratry was insured
against; but it may also be stated that this
ground was not exclusively relied on, for the
court expressly refer to and adopt the doe-
trine of the English cases, that the proximate
and not the remote cause of a loss ia to be
looked to. It is known to those of us who
constituted a part of the court at that time,
that a majority of the judges were then of
opinion for the plaintifl, upon this last general
ground, independently of the other.
It wa* under these circumstances tbat tb*
ease of The Columbia Insurance Company ol
Alexandria v. Lawrence, 10 Fcters'a R. iOT,
came on for argument; and the court tiMi
tbottgbt thkt la marina poUotoa, whether eon-
roMM tl>
183T
Ta> St&tx or Rhode Iblahd v. fiic Statc or HAMAcrHuacn*.
tainlog the risk of bamtrf or not, • loss whose
pro\iiiiiile CHuae was a peril insured sgainst, ia
witliln Ihr protection of the poJicy, ittfwitli-
standing It might have been occaiioaed Kinote-
ly hy tilt negligence of the master and mari-
DeTL We «ee no reason to change that opinion;
and, on the contrary, upon the present argu-
ment, we are confirmed in it.
The third and fourth questions art eomplete-
ly answered by the reasoning alresklj stated.
I'hose pifas cuntain no Jegal defense to the ac-
tion in tiie form and manner in which they are
E leaded, and are not sutlicicDt to bar a recovery
y the pUiAtilt.
S2a*] *Sonie suggestion was made at the
bar whether the explosion, aa stated in the
Eleas, was a loss by fire, or by explosion mere-
/. We aro of opinion that as the explosion
was caused by fire, the Utter was the proxi- .
mate cause of the loss. The fifth plea turns up-
on a dilTerent ground. It is that the tailing of
gunpowder on board was an increase of the
risk. If the taking of the gunpowder on board
was not jnatiRed by the usnge of the trade, and
therefore whs not conteinplatcd aa a risk by the
policy; thrre might be great reason to contend
thftt If it increased the risk, the loss was not
covrred by the policy. But In our opinion, the
facts are too defectively stated in the fifth
plea to raise the qiirstion.
Our opinion will be certified to the Circuit
Court accordingly. On the first question, in the
negative; on the second question, in the af-
flrniative; and on the third and fourth qne*-
tiona, in the negative.
This cause came on to be beard on the tnn-
■cript of the record from the Circuit Court of
the United States for the District of Kentucky,
and on the questions and points on which the
fudges of the said Circuit Court were opposed
n opinion, and which were certified to this
court for its opinion, agreeably to the act of
Congress in such case made and provided, and
waa argued by counsel; on consideration where-
of, it is the opinion of this court, lit, that the
policy does not "cover a loss of the boat by a
fire, caused by the barratry of the master and
crew;" 8d, that the policy daes "cover a loss
of the boat by fire, caused hy the negligence,
careleasneSB or unskilfullness of the master and
erew of the boat, or any of them;" 3d, that the
allegations of the defendants in their pleas, or
either of them to the effect that the fire by
which the boat waa lost waa eaused by the
carelessness, or the negisct, or unskilful con-
duct of the master and crew of the boat, "is
not a defense to this action ; and 4th, that the
said pleas, or either of them," aro not sufficient
in law aa a bar to the action of the plalntiS.
Whereuixin It is now here ordered and ad-
{ndgad by thia court, that it b« m oerlified to
the said Qreuit GonrL
SZ«*] *THK BTATB OF RHODE ISLAND
THE STATE OF HASSACUUSETTa
Oontlnoanco becausa of illneas of counsel.
Islsnd BDd MisHcbusetts, tbe senior counsel ap-
pointed to srgue ihe ciuw for Ibe Htst* Ot BhoM
UJand. bj tbe Legislalure, via provvalpd. bf nn-
expected and sevpre IJIaesg. ■iteiidlaK the conrt;
tbe court, on the ippllcsilaD of the Attorner-
lieneraL of tkc Btsle, ordered a cobtinuaiicc for
MR. QREEN, the Attorney -General ot tbt
State of Rhode Jsland, moved the court
for a continuance of this cause.
He stated that at the session of the General
Assembly of Rhode Island In January, 1630, a
resolution was passed associating Mr. Haxard
with the Attorney -General of the State, aa
counsel in the cause. Mr. Hatard had ainoe
been attacked with a disease, which was sup-
posed to be temporary in its character; and
until within a few days, confident expectations
of hie recovery, and that he would be able to
attend and argue this case, were entertained.
By an arrangement with the Attorney -General
of Massachusetts, attending the court, this caae
has been left open, in tbe hope of the arriral
of Mr. Hiiard. This hope no longer exists,
as his indisposition has increased, so as to pre-
vent his commencing the journey from Rhode
latend to this place.
Mr. Haiard is the senior counsel in the cast,
and has been relied upon by the State of Rhode
State, upon which the resolution of that body
was adopted, ordering this bill against the
State of Massachusetts to be filed. No other
counsel has been employed to arsut
in the place of Mr. fiaiard; and.
1, at the ad-
vanced period of the session of this court at
which this motion is submitted, no oounsel
can be prepared to go into the argument.
Queationa between the different Slates of the
Union are alwaya of deep concern and of high
importance. An appeal to this court for the de-
cision of such questions, is an application to
the highest powers of tbe court. Where these
questions are for a part of the territory in pos-
session of either of the contending States, oc-
cupied by a large population, they become of
the deepest and the highest hiterest. Such la
the present controversy.
*It is submitted that thia court will [■SIT
not apply the strict rules which govern othar
cases to this. The peace and tranquillity of the
Union may be disturbed by the decision of such
a caae, however just and proper, if a belief shall
prevail that erery opportunity for its full and
complete discussion was not afforded to each
party. Although no imputation of wrong
would be charged to this court, which, in con-
formity with its established rules, had proceed-
ed to the decision of tbe cause, against the par-
ty opposing the application of thoae rules, un-
der an existing or asserted disadvantage to the
, ._ -- j„ feelings of diasatiafae-
. .mgbt prevail; always, if
possible to be prevented between the citbans
of neighboring commonwealtha.
The questions which will bo raised to tha
argutnent of this case, are of great and general
importance, and some of them have not been
decided. Questions of the juriadietfan of this
court in a case between two States, and wheth-
er, If ft exists, provision has been nuule by
legislation for its exercise, ara hiTolvied, and
must be determined in tba final diapoaitlon wt
•tT
ixt
SupKxm Ooim or thi UxirtD Btatmi.
the eauao. Thviti qrcsUoni wen raiaed in the
e»K of Tlie Siste of Xcw Jersey v. The State
of Xew York, but tliey were not decided. The
weijg'lit anU inltrust of th.'se auestiona were
felt when that case wsa before tJiis court wme
fears eince. The controversy between those
States WAS adjusted by commiuioners, and
the case was not decided here.
To the State of Jla^siichuaetta the postpoue-
Mtent of the Hnul decision of this case to the
next term can do no injury. She is in possca-
lion of the territory which is claimed by Rhode
Island, and the inhabitants of the same are
subject snd obedient to lier lawa. Rhode Isl-
and, this court will believe, does not, on other
than grounds which she eonsidera will sus-
tain her cluiniB, come into this high tribunal
to aseert her rights ba that territory. Al-
though the bill in thia case was filed by * gen-
tleman who IB a member of this bar [Mr. Kob-
biua), yet he was never counsel in the case, but
acted only aa the representative of the Attor-
ney-General of Rhode Island in presenting it to
thU court, Bj the act of God the State is de-
prived of the assistance of the coiinHel on which
Bbe relied in this eaiiac, and this court, it
hoped, will order the postponement which hi
been asl;e<l. In the State of Rhode Island, il
ness of counsel ja a suflicient ground for the
continuance of a cause depending in a State
Mr, Austin, the Attorney -General of the
State of Massachusetts, opposed the contir"
228*] 'The State of Massachusetts Ii before
tbe court, represented by counsel, and thia
at very considerable expense. She had notice
that the case would be argued at this term and
she has attended in conformity with this requi-
■ition. The case is one of a character which
gives tt a peculiar interest, and which, while
IS unsettled, affects the tranquillity of not li
than five thousand ^rsons, wlio are inhabitants
of the territory claimed by Rhode Island.
No difference exists between States and in
dividual! in suits depending before this court,
if any do exist, the case of a State brought
nere to defend her possession of her territory
and her jurisdiction over a part of her popula-
tion in the occupation of it, has a strong
claim to obtain an early decision of the court.
The State of Rhode Island has chosen to
come to this court, and she should be at all
times prepared to sustain her claim for the in-
terference of the court, in a controversy which
she has brought forward, and haa chosen her
own time for its presentation.
It is admitted thai the indisposition of coun-
■el may furnish an inducement to a court to
postpone a cause until a subsequent day in
term, but it cannot be the foundation for a
continuance for the whole term. It appears
that the bill which was filed on the cammence-
ment of this causa, was signed by a gentleman
of this bar, now In the city of Washington
(Mr. Bobbins), a member of the Senate ^ and
thua Rhode Island is represented by two most
able counsel.
Tbe cause has bMn pending for six years,
ftwl two years have passed since the answer of
tha State of Mawachusetta waa fltedi since
wkkh the eanae eould have beea diapoeed of,
• •■
at either of the two terms which bare »
subsemient to the putting in of the answer.
Wb^ every disposition to accommodate the
wishwof the counsel representing the State of
Rhode Island exists, and the circumstance*
under which tbe motion has been made are
fully appreciated) as the official representative
of the State of Massachusetts, Mr. Anstin
stated that be could not consent to the c^-
tlnuance of he cause.
Mr. Chief Justice Taney, on the day follow-
ing the argument on the motion, said the court
had decided to order the cause to be continued.
•THOMAS JACKSON, a Citleen of the (*!»
State of Virginia, and others, CitiMoe of
that State.
Bill in equity to have mortgage cancelled.
Tbe appctlanta Bled a bill la the Circuit Court of
gage cancelled and delivered up to tbem. Tbej
allfecd tbat the ssme was given without caaalSsra-
tlon: waa Induced by IhrfSta of a proaecuMon tor
a Fdmlaal otlente agRlnat Ibp liusbnud ot the mart-
ganeori and that Ctae Inttruinents were, theretore,
void ; and that tbef were obtained b; tbt Influence
Court ol PennarlTBnla dlsmlsied the bill, and on
appeal to this court tbe decree oC (be Clicult
Court wai affirmed.
A court of chsDcer; will often refuse to entorcc
a eontract. when It would also refuse In nnniil It.
In sueli a ease, tbe parties are left to tbelr remadr
^'a sdmlsslODB Id an answer to ■ bill Id cbanceij.
can, under toj clrcum a lances, lay the foundallea
tor relief under bdv speclUc head of eqult?, BDltae
It be substaDllallf set forth In tbe bill.
APPEAL from the Circuit Court of the
United States for the Pennsylvania District
The principal facts of the case, aa stated in
the opinion of the court, were as follows:
The appellants, who are the devisees of Maria
Goodwin, brought their bill to sot aBide a bond
and mortgage executed by Maria Gooduin,
and her trustee, Kenneth Jewell, to the defend-
ant, on the Gth of January, 182D, to secure the
payment of $3,000. The bill represents tbat
the mortgage was given without consideration;
that shortly after the decease of Thomas Good-
, the htiaband of Mrs. Goodwin, which
took place in February, 1828, the defendant
itated to her that he had a demand a^inst
her husband, to whom she had been much at-
tached, and who had treated him extremely 111;
that he had tt in hi« power to render his mem-
ory odious, by exposing his conduct, but tbat
he would conceal the transaction if she would
execute a mortgage to him on her own property
to secure the debt; that she refused to execute
the mortgage, or give any other security, by
the advice of her counsel; and afterward*
ivoided hi* visits to get clear of his importuni-
iee; that shortly after this Mrs. Goodwin was
taken ill. and being executrix, her hua- [*t3i>
band'a affairs pressed much upon her, and she
fell into ft low, Derrou* etMte of spirits, which
Fet«ra 11.
Jaoksoh kt al. t.
renewed hia TisitB, and. professing great kind-
nets for her, took upon himself the manage-
ment of her buainess; and, having ^nined her
confidejice, prevailed upon her, in Vie absence of
%ay friend or legal adviser, to eiecute the mort-
gage and a correeponding bond, and to direct
that her trustees should join in the execution;
the defendant, aa a clergyman, saying she ought
to do Eo; that these repreaentatiuna bad great
influence on Mrs. Goodwin, who wai a woman
of devout religious feelings.
The complainants further represent that at
the time the bond and mortKBge were executed,
Mrs. Goodwin was utterly incapable of under-
standing OT comprehending their meaning and
effect that after the death of Mrs. Goodwin
the defendant stated to the complainants thOit
the mortgage was executed as collateral secu-
rity for any auin that might be due to hini
from the estate of Thomas Goodwin, deceased.
In hia answer, the defendant admits the ex-
ecution of the bond and mortgage, and atatea
thut in I82S, being about to receive a sum of
money, he consulted Thomas Goodwin, who
was then a broker In Philadelphia, in what
way he could moat advantageously invest iL
That Goodwin advised him to leave the money
in hia hands, and that he would loan it out
good security. That the defendant, in pui
ance of this advice, placed three thousand four
hundred dollars in his hands, and also loaned
bim two hundred and aeventy-five dollars, and
took bis notes by way of acknowledgment.
That Goodwin received a bond and mortgage
for twenty-six hundred dollars in favor of de-
fendant, from Samurl Jones, covering an
estate which was under prior mortjtairea for
twL'nty-Rve hundred dotlara, which, with the
money of the defendant, Goodwin was to satia-
ty i but that he paid but one thousand dollara
of the amount, and fraudulpntly withheld the
balance. And to cover this fraud, that he ob-
tained from the recorder of deeds, copies of the
prior mortgages on the estate of Jones, and at
the foot of the certificate of the recorder, wrote
himself "paid and aatifilled;" and then exhibited
the pajicra to Jones and the defendant, to
show that he had discharged the mortgages.
And aa there also remained on the estate a
aSI*] prior lien of « 'judgment for seven hun-
dred dollars, that Goodwin took a bond of in-
demnity from Jones against it.
That defendant often solicited Goodwin to
deliver up to him the mortgage, wliich under
Tarious pretexts he declined doing, but assured
the defendant that he had discharged the prior
mortgages; at length the defendant becoming
uneasy, he called at the recorder's office, and
there found that the mortgage for fifteen hun-
dred dollars hod not been discharged; and that
the Indorsement upon it of "paid and aatis-
Sed," muit have been made by Goodwin. On
the aame day that the defendant made this dts-
corery, Qoi^win informed him that he was
about to atop payment, but he assured the de-
fendant that he should not lose « cent.
Goodwin admitted to the defendant that he
had tued the money for his own purposes In-
stead of paying off the mortgage, and that he
had doeaived both the defendant and Jones.
^nd «t tb« NUna time Qoodwtn placed ft mort-
gage In the hands of the dsfendairt for twenty-
five hundred and seventy-five dollars, to secure
him against the mortgage on the property of
Jones, which should have bean discharged.
That Goodwin assured him the property mort-
gaged was unencumbered, which was untrue;
and the defendant reproached Goodwin with
having again deceived him, and threatened
him with an exposure unless he should make
payment or give security. Goodwin replied,
"what can you doT If you push me I will take
the benefit of the insolvent law;" the defendant
rejoined, "have you forgotten the certiftcata
which you forged I My attorney informs ma
that if Mr. Jones or myself shall come into
court with that certificate, that you would he
sentenced to hard labor." Goodwin became
alarmed, and stated that he would sell tha
Sroperty and make good the deficiency. If the
efendant would not expose him.
This conversation took place in the preaene*
of Mra. Goodwin, who, when the defendant was
leaving the house, accompanied him to the door,
appealed to his friendship for her, entreated
)i)iu not to expose the transaction, declared
that she would not have It known, especially
in the church, and among the congregation at
Blockley, for any consideration whatever. She
added that Mr. Goodwin would sell the prop-
erty and make provision for the payment, and
that she would make up the deficiency out of
her separate estate; and that neither the de-
fendant nor his child, whose deceased mother
she greatly esteemed, should lose anything.
A few days after this Mrs. Goodwin saw
the certificate, and 'acknowledged that [*2SI
it was in the handwriting of her husband and
she again entreated the defendant not to ex-
pose him, and said she would pay him If her
husband did not. This assurance was fre-
quently repeated on various occAsions, np to
the death of Goodwin, which took place sud-
denly in Febniary, 1S2B. At the moment of
his death, Mrs. Goodwin sent for the defendant,
desired him to superintend the interment, and
she threw herself upon hia kindness for conso-
lation. After the interment, the defendant
spent the evening with Mrs. Goodwin, engaged
in religious conversation; and being about to
leave, she said, "Mr. Ashton, I hope you will
not forsake me. If you cannot come In the
daytime, come in the evening, and pray with
me, I will be pleased to see yon at any time,
and as soon as I get* little over my trouble,
1 will fulfill my promise and settle with yon."
The defendant replied that he hoped she
would not let his concern trouble her at that
time, that it gave him not a moment's uneast-
This promise was repeated by Mrs. Goodwin
ii.<;(iin and again; and on one occasion, when the
defendant was ill, she expressed uneasiness lest
he might die before the matter was arranged.
On consulting counsel, she was advised to do
nothing with her property for a year, and he
refused to draw a deed. But she said the ad-
vice was unjust, that she would pay the de-
fendant, and felt herself bound to do so as a
Cliristian. And she delivered a covenant to the
defenilant, binding herself to make good the
dpftriency, should there be one on the sale
of her husband's estate. Up to this time, the
dafenditnt had not expressed $■ desire to Mrs.
EM
Stjwttaa CouiT or thk Duitb* Statkb.
Goodwin tbftt iha ihonld pay uij pmrt of lL«r
hnsband'B dabt.
Iq December, 182g, the derendant stated to
Hra. Goodwin tbat «he hod acted voluntaril/
in ths matter, end not through hia persuaiioo.
That if he might be permitted, for the firit
time, to become active in the butineaa, he would
waa not valid. She expressed (urpriRe, and a
wiJiingnea* to aecure him. and the bond and
mortgage in controvert j were prepared and ex-
ecute at the office of Thomaa Mitchelt, a Bcriv-
«Ber. An agreement waa executed bj the de-
fendant, decTarioK that the bond and mortgage
were given aa collateral aocuritj, etc
With the exceptioD of the execution of tbe
bond and mortgage, the defendant denied all
tbe material allegatioits of the bill.
ass*] ■The other facta are atated in Iha
opinion of the court, and by the counael in tbe
argument
The case was argued hj Mr. Key for tlie ap-
pellants, and bj Mr. IngersoU for the appellee.
Mr. Key, for the appellants, contended:
1. There was no oonaideration for the bond
or mortgage.
2. That they were executed by a wealc wom-
an, who, at the time, was incapable of mailing
■nch a contract.
3. That they were extorted by a threat to
prosecute her nushand.
4. That the relation In which the defendant
stood to Hra. Goodwin, as her pastor and re-
ligious visitor, and as agent and adviser in her
affairs, prohibited any contTBi.-t with her es-
pecially when made in the atoence of her coun-
sel, end with his known disapprobation.
Mr. Key, in opening the case, represented the
contract which gave rise to this controversy as
having a remarkable origin, and followed by
very singular circumstances.
The origin, as exhibited by defendant In hia
answer, and the proofs, was this: he had been
defrauded by Mr. Goodwin; the fraud, aa de-
fendant thought, was accompanied by forgery,
and he goes to Goodwin and flnds him at his
iMuse and in the presence of his wife charges
him with the fraud, and threatens him with a
prosecution for forgerv: he says he has taken
counsel, and that he has a paper which he is
adviaed proves the forgery, and would tend
Goodwin to bard lalrar.
Goodwin is alarmed; beg* him to Iteep tha
matter secret, and promises to pay or secure
him.
On leaving the room, Mrs. Ooodwln follova
him; the defendant was a clergyman, Mrs.
Goodwin waa a pioua woman of the aama
church, and had Dean a comm.inicant is de-
fendant's congregation. She liegs the defend-
ant "not to expose the transaction," saying
"■he would not have it known, especially in
the church and among tho congregation at
Blockley, for any consideration whataver;"and
aha added that Mr. Goodwin would sell the
property and pay it, and "she would make up
the deficiency out of her separate estate.
Aftar a few days she called on defendant and
aaked to see the certiflcate which defendant had
eharged to be a forgery; It was ahown to her,
and she observed "it was her hus1>and'a hand-
writtng" and again eBlreated tha dafandant not
to expose it, and aald tliat aha wonU "pay
'him if her husband did not;" thia was I*l>4
in 1S24{ Goodwin died euddenly in February,
1BZ8. The anawar aaya, "the defendant cod-
tinued to rest upon tbe aasurancaa which had
been so often given to him, by both the husband
and wife; and eBoedally upon the good faith of
the latter, in which he placed great reliane*
after the repeated solemn voluntarv promisca
which aha had made to him, which he believed
ahe had both tlia inclination and ability to
make good."
At the death of her husband, Mrs. Goodwia
"sent for defendant," "asked his friendly as-
sistance, and threw herself upon him for cod-
solation; and the defendant passed the evening
at her house in religious conversation." Ho
continued to visit her till he was taken aiek-
She then went to see him, and on ber eecond
visit said "she came to fulfill her promiae by
offering him further security; that she would
deed him the house in Lombard Street, to hold
aa eollateral security till Mr. Goodwin's pn^
erty waa sold;" the defendant expressed him-
aelf well satisfied with whatever ahe thought
right. Goodwin (it should be observed), in nia
lifetime, had given the defendant some prop-
erty as aeeurity; and the defendant himself, aa
he himself stated, only thought himself unse-
cured to the amount of C500 or $S00. Tbe
a>Dversation ended by her aasuring tbe defend-
ant that "she would call on Mr. Ingraham, her
attorney, to draw the deed, and bring it hs soon
aa it was ready." A few days afterwards she
called again, and said "she had called oa Mr.
Ingraham agreeably to her promise, but he re-
fused to draw the deed, statins It would b«
wrong for her to pay any of her husband's
debts, and that she must do nothing with her
property any way for a year." She added that
"the advice of Mr. Ingraham waa very unjust,
that it did not move her in the least from her
intention to pay all Mr. Goodwin's friends to
whom be was Indebted, and that she felt bound
in conscience as a Christian to do so." She
therefore delivered to the defendant a covenant,
whereby she af^reed to make good the de-
ficieacy, should there be one after the sale of
her husband's property, in the payment of the
defendant'a claim of |2,6TS, with the interest
due thereon. This covenant Ixara date July
ITtb, I8Z8.
After thia, the answer atated, about tba Slat
of December, 1S28, the defendant Infonoed ber
this covenant did not bind her property, aa it
was held by trustees. She expressed her sur-
prise, and said she had executed a mortgage to
the bank, and "wonid execute a simitar nne in
favor of the defendant.* A mortgage was ae-
cordingly prepared and executed b^ herself and
Kenneth Jewell, her trustee, 'with a [*2S6
bond conditioned to pay 13,000 to defendant,
and a warrant of attorney to omfeaa judg-
ment; all dated on the Gth of Juiuary, 1829.
A defeasance was drawn at the same time, to
be signed by defendant, showing the true coa-
si deration of the mortgage was not the boid,
but to pay the deficiency of defendant's debt
from Thomas Goodwin, after applying the pr«-
ceeda of Goodwin'a pr<q«rty to that object.
This defeasanoe waa never, in point of faot,
delivered to Mrs. Goodwin or her trustee. TIm
scrivener did not know when it was executed.
PcMra II.
Jaokmr 0 al. t. AMoiem.
fSS
DafcBdaiit wu to mkm bftck and exeentfl It;
it wu tlien to be tent to Kenueth Jewell by
the aerivener. This never was done, and there
WM never anir other delivery of it than leav-
ing It with the aarivener, when it waa ligned.
Nor was it ever afterward! produced till after
this suit was brought, when it waa produced
bj defendant, who was aaid to have borrowed
it. It appeara, hj the evidence of B. G.
Mitchell, that neither be, nor bis father, nor
the defendant, about a jear before the suit waa
bronght, knew where It was; and that it waa
then said defendant had borrowed it. The
mort^K* 1« not only for the hoiue on Lombard
Street, but for two others; and. as far as the
case ahowsi for all her property. This I* the
bond and mortgage which the defendant now
asserts the right to eatablish, in opposition to
the bill flied in the court below, bj the repre-
■nitatfvea of Mra. Qaodwin, to set them aside
«■ made without consideration, aa being ob-
tained from a weak woman 'bitterly incapable
at the time of ezecntion, from her state of
health and mind, of understanding or compre-
hending the meaning of the samej" and, In
favor of a person "who having gained her
confidence, prevailed upon her. in the absence
of any friend or legal adviser, to execute to
him the said bond and mortgage, and to direct
he~ trustee to join in the execution, represent-
ing to her, as a clergyman, that she ought to
do SO; which said representation, she being of
a devout disposition and religious inclination
of mind, had In her then state ot health and
mind great influence npon her." He contended
thnt from the bill, answer and proof. It ap-
peared,
1st. That there was no consideration, or an
illegal consideration for this bond and mort-
The
The answer r«pruented the covenant of July
■a the consideration for the bond and mort-
gage and the previous parol promise of Mrs.
Goodwin, in the life of her husband, as the
eonsideration for the covenant. Bu: if that
prcTions parol promise was without considera-
tion las it clearly was), then the giving the
tit*] covenant, end, subsequently, 'the mort-
£ge. under the influence of the previous prom-
, and the impression that it was obligatory,
Is no conllrmation. Under this head he oited
3 Bos. ft Pull. Z4B; 7 Cow. 57; 2 Bro. Ch.Rep.
400; 3 Bro. a B. 117; 2 Vem. 121.
He further contended, under this proposition,
that an illegal eonsideration appeared, and was,
of itself, alone conclusive a^mst the validity
«f the contract; the original consideration,
which tainted all the eubaequent contracts, waa
the suppression of a prosecution. This Is shown
by the anawar and by the testimony of Dodge,
who stats* that the defendant told him, "the
consideration related to unfair eonduet — the
forgjng of a eertlttcate from the reoorder'a of-
flee; and he waa to let the matter rest, and not
to prosecute. If she would not pay."
In the defandant'a proof, a almilar statement
is ahown to have been made by Hra. Goodwin.
That such a consideration vitiated the con-
tract, he dted Brooke ^. Harbury (7 Wheat.
S7S); S P. Wma. S79j Powell on ContraeU,
3M, su, asn.
It ia aaid tliera waa her* no forgsry In fact,
and that, therefon, tharo aonld M ■» proa-
ecntioc. Powell on Contmeta (S50) showi that
if there waa any color for the charge, it la
ensu'''. ; that It la not necessary the erime
shk-.d appear to have been committed.
And if, apain. It is said that complainants
are not entitled to relief if compounding the
felony waa the consideratfon, being in pari de-
licto; he answered that that principle, and all
the cases cited in support of it, only applied
where the party himself who had assented to
the contract, came to a court of equity for re-
lief: the representatives of such a party were
not in pari delicto, and not liable to the ob-
jection; this distinction was taken, and relief
allowed to the representatives in Matthew v.
Hanbury, 2 Vem. 1B7, and the same case alto
answers the objection that the bill does not
ehange the illegal consideration or the fraud.
0 Pick. R. 212; 3 Cow. 63S.
If, then, there was nothing more in the case,
this illegal eonsideration being fully proved by
the defendant himself in his own evidence, and
admitted by bis own statement of the con-
sideration to Ur. Dodge, vitiates these securi-
ties.
2d. He next contended that these Instm-
ments were obtained from a weak woman, in-
capable at ths time of making such a contract;
and artfully extorted from her by exciting her
fears for her husband.
He compared the testimony of eompUinents
and defendant as to her state of mind and
body, when these contracts were made, and
'contended that the weight of evidence [*33T
was against her competejicyj the contraHs she
did make at that time weic all mode with tha
approbation of her legal advisers, and three
of these witnesses say they would not have
made a contract with her otherwise.
Further, the complninants' witnesses are her
Intimate acquaintances, and on moat familiar
and confldential terms of intimacy, and those
of the defendant had but a slight acquaintance
with her.
The defendant, on the contrary, is shown by
all these transactions to have been a shrewd
He gets security for O.OTIO to save him from
a probable loss of 9500 or $000; Is to give a de-
feasance, which she never gets; which he bor-
rows, and nobody knows where It is till Ita
production la necesBary for him.
She oITcrs one house, he gets three; and ap-
parently all the property she had.
He does not move in the business during het
husband's life, because he feared he wniild not
have suffered his wife to be so Imposed on.
When she complains of the transaction, he
quiets her by promising to wait for his money
till after her death. And above all, by his art
in making his threat of prosecution in her
presence. Knowing her affection for her hus-
band would prompt her by securing him, to
prevent the prosecution,
Buch a contract, he contended, could not b«
sustained between any persons, but here:
3. The relation suheisling between the
fiarties, the defendant being her pastor and rc-
igiouB visitor, on wham, as he himself states,
"she had thrown herself for consolation;" and,
being, further, her agent and adviser, in attend-
ing to her property and managing tier affairs,
aa Uw> proof shows, gives to the contract *
ZS7
SuPUiH CoCRT or TBK URim 8TAm.
ehkractar which a, oonrt of equity, on principles
of public policy, must condemn. The relat'-
belng proved, the preauniptjon of the unc
Knd irresietible influence of luch a relation
mough for the complainHnts.
Under this head hs cited 12 Vea. 371, in
which the Lord Clianceilor soya, "without an]
oonaideration of fraud, or looking beyond thi
relation of the partiea, the contract is void.'
Alio 2 Jacob ft Walk. 413; where the absence
of the legal advisor in a bargain made bet'
■neh parties ii considered an objection.
Here, there was not only tlic abaence of the
leg&l adviser, but his decided advice against
the contract, and his refusal to assist ir '*
S38*] and *that advice and refusal know
the defendant. Cited, 2 Scho. &. Ufroy, 31 ; 3
P. Wmt. 130; Jlilne 4 Keene, 271; 14 Veaey,
273; 3 Mad. Grifllth & Robins, 105; 1 Ves.
603; 1 Cox. 112; 1 Hot. 146; 8 Price, 161; 18
Vca. 107; 2 £dcn, 200; B Pothier, GT2, 432; 1
Johna. Ch. R. 350,
The defendant has thought himself safe, be-
CAuae he presumed the complHlnants could not
prove that he u«cd the inllnence this relation
«ve him in gaining his object. But Ihr^f nisp^i
ihow that the coniplainanis need not urovv it.
The whole burden of proof is on liim. He must
show that it was a farr and reasonalilc c<iiiin'L'l
for a woman in distressed circiinislnriw* lo
make; that she made It with full knnwii-.l:!'
and freely, and with the advice of coiii|<rU'iil
friends or counsel.
He has shown nothinc of this. It ivna mnul
unreasonable to atrip herself of her pioporcy
for no benefit. She was most cruplly tortured.
And her fears, not her free will, gave thi
fromise; and she had the approbation of ni
rlends, for she did not consult her trustee.
who disapproved of It; and if consulted either
bv her or the defendant, would have prevent-
ed it; and her counsel had refused to draw the
instrument, and the defendant knew of his re-
fusal. It is to be hoped that the high sanction
of this court will never be given to such a con-
tract, which la a temptation thrown in the
way of the ministers of religion, which th<-y
may not always be able to resist. This mo3t
important and solemn relation that can sub'
sist between individuals ought, above alt
others, to be guarded, even from the possi-
bility of abuse, and hallowed by the most exalt-
•d purity.
Mr. IngerMll, for the defendant.
The case of the appellee, as It stands with-
out dispute or contrariety of testimony, ex-
hibits strong claims for the consideration of a
court of equity. A gentleman was defrauded
of a conaiderable sum of money in the course of
vrangementi for a mere investment, from
which he could not posaibly have gained a
farthing, and could not, in the ordinary and
even cautious estimate of results, have antici-
pated a loss. The broker, in whose hands he
regularly places his funds in mere and neces-
sary deposit, fails to procure the promised se-
curity, and the funds are dishonestlT with-
drawn from the use of their lawful owner.
This state of things continues unchanged dur-
ing the joint lives of the parties to the trana-
aS9*] action. One of them is a perfectly 'fair
and honest autTerer; without bemg subject to
the alightest Imputation of miaconduct or even
i;otteii gains.
After the death of the fraudulent party, hit
wife executes an instrument, calculated merelj
to indemnify the party wronged. Id doing to,
ahe interferes with no juat demand upon her-
nelf or h«r buried husband. She deprives na
creditor of his claim. She does not even taka
from child or relative a portion needed for
education or support. Bhe does an act which
comes aa near to the performance of an abao-
lute duty, and a compliance with the exactions
of positive right, aa can be conceived without
a positive provision for it in the municipal
Eoda. It ia an act which, in efTect, some aya-
tema of legiaiation have enjoined; whidi, in
the code of morals comes within a cardinal
regulation, and which. In practice, is an honor-
able and not an unfrequent exhibition. Mont-
esquieu highly commends a law of Geneva,
which denies to the children of an insolTaat
parent the enjoyment of office until they hAT«
paid his debts.
Mn. Goodwin herself did the like with Other
iTcditora of her husband, without any com-
plaint on the part of her devisees.
The case thus presented is one of those cor-
rect and evrn laud able transactions to which
pi>|iii?ar sentiment decs homage, as to a useful
p^u^lple; and to which courts of justice will
lend their aid as directly within the just pro-
motion of the purposes of all law, the good
nii'.ditct and the happiness of those who Uvo
under it.
The complainants must go for out of tho
case in order lo succeed. They must show
something stronger than a contract, to destroy
<twh an arrnngemcnt as is stated to exist. It
is within the limits of legal possibility to do
so. A contract, however clearly made, is liable
to be overturned, if it be found wanting !■
the nci-eesury legal Ingredients which must con-
tribute to sustain it.
The complainant a assume this burden of dia-
proof. Fraud will vitiate any contract, unless
it be mutual fraud. The pleadings neither al-
lege the existence of fraud nor the existenEC of
the relation of pastor and member of a Sock,
from which it is BrgueJ that influence waa
fraudulently exercised. SucL allegation la r»-
quiied, according to the Ijeat authorities.
Flint ». Field, 2 AnstruLhcr, 543; Gordon t.
Gordon, 3 Swanston, 472; Gouvernenr v. Klmcn-
dorf, 3 Jolint. Ch. 70; E. I. Company t. Hench-
man. 1 Ves. Jr. 289; liandy T. Handy, H
Wheat. 103.
'Tliia want of allegatiou is relied up- (*S4t
on no further than to the extent of ita prevent-
ing a suitable denial In the answer, and thna
exposing the case to the uncertainties which
arise from conflicting assertions in argumeit.
Every allegation in the bill, which is material,
is deuied; and not one is sustained by testi-
mony, to tlie disproof of the assertions in the
answer. The bill relies upon the following
positions, all of which are denied:
1. That the complainant, Jackson, In the
mmer of 1S19, discovered the mortgage re-
corded, and caTled on the defendant to tcBCV
how the debt was contracted, etc.
2. That the defendant urged Mrs. Qoodwln,
shortly after her bushand'a' death, to execute n
jACSfiOH Bt AL, T. AaHIMI.
1. That ihe Kfused to do w, uid tb*t mch conducting the wj thing vMdi la Boaght ts
nftual WM hy the advice o/ counsel. b« ftvoided bj resBon of alleged imbeeilitT ol
4. That to kvoid hU import ._
luoed to receive his visits, or to Bee tiim.
5. That in Dti^ember, 182S, thetore the mort-
gage was exeouled] she wag taken iI1.
6. Tliat after her being talion ill. in Decem-
ber, defendant renewed his visiisi Look upon
himself the management of hvr sETairs. and
hftving gained her confidence, and rcpreseiiled
to ber, IS a clergyman, that she ought to ex-
•cute the mortgage, prevailed on her lo do *o
In the absence of mnj friend or legal adviser.
7. That she was utterly incapable of "un-
derstanding or comprehending" the meaning
of the mortgage.
These aseertiOQi arc made by one who does
Dot pretend to know the truth of them, or to
assert anything of his own knowledge. He is
irresponsible, because he is uninformed. Thej
■re unfounded in proof. They nre all contra-
dicted by the answer, in terms which are un-
measured and unequivocal. They are all, as
far as negative proofs can go, contradicted by
other testimony. They remain, therefore, as-
aerlions only ineffective words.
We deny that any relationship subsisted
which jusliHes the impulation of undue inHu-
encp. Mr. Ashton was a clergyman, and Mrs.
Goodn-in was a religious woman; that Is all
tliat existed, and it is all that is alleged.
There are relations which induce a bigh degree
of eonGdence on the one side, and inDuence
upon the other. They are stated in 1 Story's
Equity, 306, etc. Wherever they exist, all ar-
rmngements between the partita are narrowly
observed. It is e(|ually true as to (quani)
guardians or eonSdentla) advisers. But neither
S4I*] these 'nor the positive relations be-
tween trustee and cestui que trust vitiate
necessarily a contract. A man cannot buy of,
or sell to himHcIf, if be stands in the double
capacity; but a trustee may, and often does
?ureh8se of his cestui que trust. Colea v.
'recothick, S Ves. 84S, cites Fox v. Mackreth,
2 Br. C. C. 400; Morset) v. Ri.jal. 12 Vts. ^05;
Wh'chcote v. Lawrence, 9 Ves. 7W; Lessee of
L.azaruB *. Bryson, 3 Binuey, 63) Wormley v,
Wormley. 8 Wheat, 471.
The doctrine of the complninants would viti-
ate every contract between a pastor and the
membera of bis congregation. He would be-
come civiliter mortuus and perhaps starve. No
gift can be accepted, no piirchave made from
those who are about him-, and the consequence
would be, a condition of absolute seclusion and
nonintercourse with his fellow-men.
The charge of imbecility of mind ia poEii-
tively denied. It is denied in all its stagps and
degree*. It is repelled throughout. Mrs. (iood-
win was not only not a woman, "utterly in-
cmpable of understanding and comprehending
what she did," but she was a woioaa of strong,
Active, vigorous, and acute intellect. The idea
of Insanity ia more than absurd; although it la
•uggeated by one, at least, of the witnesses for
the complainants. The act itaelf, conducted
witb infinite prudence and care In all its stages,
proves ber strength of mind and firmness of
purpose. It was a fortniicht or three weeks in
progress. It was conducted with great correct-
.-leas and propriety, with no undue haste, and
30 sort of surprise or irregularity. Much im-
'tached to toe oianncr of
e la always attached t
mind. Cartwright v, Cartwright, 1 Ecc. Rep.
51. During ber lifetime, not a suggestion was
mitde of the invalidity of the act, or ber inca-
pacity lo perform it. The complainant himself,
her agent in business, as well as bei- successor
in intereat and guardian by affinity, knew of
the mortgage, and of the determination of the
defendant to puraue it; of hi* refusal to
compromise, and of his stem demand of the
uttermost farthing aa a clear right. Yet he
permits it to pass. So doe* she. She doe*
more. She confirms it, in the belief which baa
bven verified, that it would not be enforced
during her life. All this omission to object in
due and proper season wa* the result of a
conviction that the presence of Mrs. Goodwin
would have put down, at once, an attempt to
avoid the mortgage. She never denied or
doubted it. Her whole life was its confirma-
tion, and she would 'have revolted in- ['Zii
dignantly at the thought of an iflconsiatent at-
tempt to disaflirm it. There is no difTieulty
about stultifying one's self, it there be the
slightest impoeition. See 12 PetersUorlT, 877,
278.
Witnesses are called to prove an illnesa, at a
period subsequent to that alleged, and subse-
quent also to the date of the mortgage. Sucb
eviUcDce is not available, being counter to the
party's own allegation in pleading. E. L Co.
v. Kcighly, 4 Mad. 16; Polling v. Armitage, 18
Ves. 78; Willis V, Evans, 2 Baud B. 228; Un-
derhill V. VanCourtland, 2 Johns. Ch. Rep. 339;
Jauies y. M'Kennon, S Johns. Kep. 543, 65B(
Unker v. Smith, 4 Wash. C. C. Eep. 224.
The cases of influence reported in the books
show direct misrepresentation aud willful
fraud. Slocum v. Marshall, 2 Wash. C. C. Rep.
3a7 ; Whelan v, Whclan. 3 Cowra, 637 i
llugucnin v. Bfiseley, 14 Ves. 273; Norton t.
llelley, 2 Eden, 2Bai Pueetl v. MacNamara, U
Ves. 01.
It has been argunl by counsel, although not
suggested in the pleadings, that the mortgage
is void, because in furtherance of an attempt
to compound a prosecution for a crime. We
deny that any sucb arrangement was at any
time made. The cases which have been decided
on the subject of agreement*, contrary to the
policy of the law, do not apply to thi*. Lead-
ing ones are to be found. 2 Wils. 341; 1 Leon.
180; 3 P. Wnifl. 278; I Hopk. U, etc.
But the rule is that if an arrangement may
lie lawful, no principle directs that it shall be
construed otherwise. Harris v. Busk, S Taunt.
54; Shunk v. Mingle, 13 Serg. 4 Rawls, 2i>i
WaHace v. Hardacre, 1 Camp. 45; Brett v. Close,
ID East, 208.
No forgery in fact had been committed.
There was a gross fraud, and Mis. Goodwin
anxiously desired that it should not be made
public. That end was gained by the forbear-
ance to sue during her husband's life. After
his death the fears of a prosecution were over.
There was none to he dreaded, and none to be
I'lilled. All that she did was purely voluntary.
If she made any engagement before (she being
a mitrred woman) they were legally noa-
entities. 1 Sid. 120; 7 Muss. Rep. M.
Were it otherwise, the case of the complain-
ant would not be aided. A mutual agreement
lo violate the law will not Jnatlfy tbe applica-
Burmu Ooun of thb Uititbd SrAns.
tioB of alther part; to « court of jusKcfl for n-
lief. ThU i% uot OUT attempt to Enforce tbe
tuortgage. It is the attempt of the eomplaia-
anti to hBTe It delivered up to be canceltMl. If
S43*J their views are correct 'an to tha nftture
of the eontrKct, neither party can lucceed. Tbe
dietinction between an application for tpeciflc
performance and a bill like thli Is well under-
•tood. Bm;th V. Smyth, 2 Mad. 387; Martin v.
Mitchell, 2 Jacob A Walker, 419.
The law, however, adminiitered In point of
form, doee not lend its aid to those who allege
that tbof have endeavored to violate it. Hawes
V. Louder, Velverton, 196; Osborne v. Moss, 7
Johns. 101; Simmes' Lessee v. Gibson, I Yeates,
sal ; Bctchart v. Castator, S Binn. lOD ; Newman
V. Cupp, 6 Binne}^, 76; 6 Co. R. 60j 2 Vern. 133.
We know nothing of the source from which
the trust estate of Mrs. Goodwin was derived.
If from her husband, it !■ a fund peculiarly
appropriate for the payment of this debt, and
it IS fraud to withhold it. Inducements strong-
er even than those of honest jiride and affection
may have led her to provida this security.
Under the consciousness, if It existed, that she
held property which belonged to her husband,
it was the simple dictate of moral honesty to
yield it to so sacred a claim bs that of the
defendant. With or without the motive, she
was sensible that the money of which the de-
fendant hftd been spoiled belonged to the child
of a deceased friend, and she therefore anxious-
ly and naturelly sought to secure its restora-
tion.
Much has been said of the extent of pecuni-
ary elTort which Mrs. Goodwin's estate must
malce to meet this engagement. It is supposed
that all her property was pledged for the pur-
pose, and more than once she is declared to
Dave stripped and beggared herself to meet
the object. It is easy to show bow erroneous
is this presumption; and hence to defeat tbe
argument drawn from the supposed unreason-
able character of the sacriflce. and the appeal
which it involves to our feelings of kindness
for her descendants.
1. The mortgage contains only three small
lots in tbe city of Philadelphia, and It is in
evidence that she had property in the country;
especially the seat where she was visited by
Dr. Beatty, during one of ber attacks of in-
disposition.
2. The bill states that Mrs. Goodwin's will
devises, among other things, tbe mortgaged
premises, llie general character of the will
does not enable us to judge of the comparative
value of the property mortgaged, and that
which was left free from liability.
944*] *It is obvious that tbe mortgage af-
fords inadequate security to the de-
fendant. The money loaned, and
perhaps lost, is t3,S76 00
The security given by Mrs. Goodwin,
yielding beyond other liens. (61 a
year would afford a capital of about 1,000 00
«2,e7S 00
Mr. Ashton saved by the purchase
of premises mortgaged by Goodwin,
and levied on, and sold by virtve
of so earlier mortgage 4M S2
Something hu bMB aatd with regard to tlw
possession of the defeasance by the defandanU
It wanted eipIonatioD, in proof, before th«
Circuit Court. But it is now fully explained
by the testimony of Daniel R. Ashton, who
states that It was borrowed of tbe ■ ' —
Besides, there is nothing in tlie bill in relation
to It; if there had been, it would have enabled
ths defendant hjnisclf fully to account (or
whatever there is supposed to be of mystery.
It was executed in perfect good faith and form-
It was left with the scrivener according to
agreement, and it was so left for the pr(n>er
party (the trustee), and it remained subjaet
to his call. A failure of memory in the
scrivener, who did not chance to recollect how
it passed out of his hands, or a little neglect
in the trustee to call for it In season, cannot
surely involve a case in Jeopardy, or a party in
so grave a charge as that of withholding a
document necessary for the protection of the
complainants against cbeolute liability. Tbe
defendant never alleged that the mortga^ was
other than collatenu.
Mr. Justice ITLean delivered the opinion of
the court:
This suit in chancery Is brought before this
court by an appeal from the decree of the Cir-
cuit Court of Pennsylvania.
The appellants, who are the devisees of
Maria Goodwin, brought their bill to set aside
a bond and mortgage executed by Maria Good-
win and her trustee, Kenneth Jewell, to the de-
fendant, on the 6th *of January, 132!), ['343
to secure the payment of $3,000. The bill rep-
resents that the mortgage was given without
consideration; that shortly after the decease of
Thomas Goodwin, the husband of Mrs. Good-
win, which took place in February, 1828, the
defendant stated to her that he had a demand
against her husband, to whom she had bees
much attached, and who had treated him ex-
tremely ill; that he had it in his power to rea-
der his memory odious by exposing his oonduet,
hut that he would conceal the transnction if
she would execute a mortgage to him on Iter
own property, to secure the debt; that she re-
fused to execute the mortgage, or to give any
other security, by the advice of her counsel, and
afterwards avoided his visits to get clear of
his importunities; that shortly after this Mrs.
Goodwin was taken ill, and being executrix,
her husband's affairs pressed Jtmaa upon her,
and she fell into a low, nervous state of apirita,
which impaired her memory and affeeted her
mind) that whilst she was In this state the de-
fendant renewed his visits, and professing
great kindness for her, took upon himself tbe
management of her business; and, having
gained her confldence, prevailed upon her, in
the absence of any friend or legal adviser, to
execute the mortgage and a oorrespondiig
bond, and to direct that her trustea sbonlo
join in the execution; the defendant, aa a
clergyman, sayinff she ought to do so; that
these representations had great influence •■
Mil. Goodwin, who WM 4 wonwi of devout rr
llgious feelingh
jACKMir B A£, T. ASBfOir.
M6
Hi* eamplkiiiuiU further icpreacnt tb^t «t
the time the bond tai mortage were executed,
Ure. Goodwin wa* utterljr incapable of under-
■tuiduig or comprehending their meuiing and
fffeet; that after the death of Mre. Goodnin
the defendaot stated to the compIainHnte that
tha mortgage waa executed aa collateral am-
nuitf for aof auro that might be due to him
from the estat* of Thomas Goodwin, deceased.
In hia answer, the defendant admits the exe-
mtion of the bond and mortgage, and states
thkt in 1S22, being about to receive a sum of
money, he cunsultM Thomas Goodwin, who waa
then a broker in Philadelphia, in what way
he coiild most advantageously inveat it; that
Goodwin advised him to leave the money In his
hajida, and that he would loan it out
•ecurity. That the defendant, in pure
tbia advice, placed $3,400 in bis hands, and
«lao loaned him ^75, and took his notes by
way of acknowledgment.
That Goodwin received a bond and mortgage
S4A*] for $2,000 in 'favor of defendant Irom
fiamuel Jones, covering an estate which
under prior mortgages for (2,500 which, with
tlte mooey of the defendant, Goodwin was to
Mtiafy; but that he paid but $1,000 of the
MDOUnt and fraudulently withheld the balanc
And to cover this fraud, that he obtained froi
the recorder of d^eds, copies of the prior mori
gages on the estate of Jones; and at the foot of
the certificate of the recortler, wrote himself
"paid and satisfied," and then exhibited the
jwpers to Jones aad the defendant, to show
thkt he had discharged the mortgages. And as
there also remained on the estate a prior lien
of k judgment for (700, that Goodwin took a
bond of indemnity from Jones against It,
That defendant often solidted Goodwin to
deliver up to him the mortga^, which under
various pretexts he declined doing, but assured
the defendant that he had discharged the prior
mortgages: at length the defendant becoming
uneasy, he called at the recorder's ofTice, and
there found that the mortgage for (1,500 had
not been discharged, and that the indorsement
upon it of ''paid and satisfied," must have been
Bude by Goodwin. On the same day that the
defendant made this discovery, Goodwin in-
formed him that he was about to stop pay-
ment, but he assured the defendant that he
should not lose a cent.
Goodwin admitted to the defendant that he
had used the money for hia own purposes in-
stead of paying olT the mortgage, and that he
had deceived both the defendant and Jones,
And at the same time, Goodwin placed a mort-
gage in the hands of the defendant for $2,S7S,
to secure him against the mortgage on the
property of Jones, which should have been dia-
ehnrged. That Goodwin assured him the prop-
Mty mortgaged was unencumbered, which was
nutme; and the defendant reproached Goodwin
with having again deceived him, and threat-
■Md him with an exposure unless he should
make payment or give security. Goodwin re-
j^Bi, 'what can you do I if you push me, 1
wiU Uke the benefit of the insolvent law;"
the defendant rejoined, "have you forgotten
the eertificate your forgedl My attorney in-
forms me that if Mr. Jones or myself, shall
some into court with that certificate, that you
would be in danger of being sentenced to hard
labor." Goodwin became alarmed, and stated
that be would sell the property and make good
the deficiency If the defendant would not ex-
Tbis conversation took place in the presence
of Mrs. Goodwin, who, when the defendant was
leaving the house, accompanied him *to [*94T
the door, appealed to his friendship for her, en-
treated him not to expose the transaction, de-
clared that she would not have it known,
especially In the church, and among the
congregation at Blockley, for any consideration
whatever, Bhe added that Mr. Goodwin would
sell the property and make provision for the
payment, and that she would make up the de-
ficiency out of her separate estate, and neither
the defendant nor his child, whose deceased
mother she gnatly esteemed, should lose any-
A few days after this Mrs. Goodwin saw the
certificate and acknowledged that It was in the
handwriting of her husband; and she again en-
treated the defendant not to expose him, and
said she would pay him if h«r husband did
not. This assurance was frequently repeated
on various occasions up to the death of Good-
win, wbicb took place, suddenly, in February,
1828. At the moment of his death Mrs, Good-
win sent for the defendant, desired him to
superintend the interment, and she threw her-
self upon hia kindness for consolation. After
llie interment, the defendant spent the even-
ing with Mrs. Goodwin, engaged in religious
conversation; and being about to leave, she
said, "Mr. A ah ton, I hope you will not forsake
me. If you cannot come In the day time, come
in the evening, and pray with me, I will be
pleased to see you at any time; and as soon
as I get a little over my trouble I will fulfill
my promise and settle with you." The de-
fendant replied that he hoped she would not
let his concern trouble her at that time; that
it gave him not a moment's uneasiness.
This promise was repeated by Mrs. Goodwin
again and again, and on one occasion, when
fhe defendant was ill, she expieaseU uneasi-
ness lest he might die before tne matter was
arranged. On consulting counsel, she waa ad-
vised to do nothing with her property for a
year, and he refused to draw a deed. But she
said the advice was unjust, that she would pay
the defendant, and felt heraelf bound to do so
as a Christian, And she delivered a covenant
to the defendant, binding heraelf to make good
the deficiency, ahould there be one, on the as1e
of her husband's estate. Up to thia time the
defendant had not expressed a desire to Mrs.
Goodwin that she should pay any part of her
husband's debt.
In December, 1B28, defendant stated to
Mrs, Goodwin that she had acted volnn-
tarily in the matter, and not through his
persuasion. That if he might be permitted,
for the first time, to become active in the bual-
neas, he would auggeat that as her property
was held in trust, *the covenant which [*24S
she had executed to him was not valid. She
: pressed surprise, and a willingness to secure
him; and the bond and mortgage in controversy
were prepared and executed at the office of
Thomaa Mitchell, a scrivener. An agreement
was executed by the defendant, declaring ttiat
the bond and mortgage were given as collateral
security, etc.
With the axeeptlon of th« exeevtiMi of the
MI Sttssmx Ooitbt <»
bomd mnd mor^ge, the defendant deniea al\
the iDktariAl •Itegationi of the bill.
The cuuiuel far the Co m pi Hi nan ti contend
thmt the proof sustains the charges in the bill,
•nd that tliej &re entitled to the nlief prayed
for on the following grDiuds:
1. Th«t there was no coosideration for the
iMnd and mortga^.
E. That the]' were executed by a weak '
an, who, at the time, was incapable of making
such a contract.
3. That they were extorted by a threat to
prosecute her husband.
4. That the relation in which the defendant
Stood to her, as her pastor and religious vUitor,
and as agent and adviser in her affairs, pro-
hibited any contract with herj especially when
made in the absence of her counsel and with
hia known disapprobation.
As to the want of consideration alleged In
the first position, it must be obaerved that this
is not an application to the court for the spe-
eiflc execution of a contract, but to set one
aaide wliich is clothed with the highest solemni-
ties known to the law. A contract under the
hand and seal of the party, duly acknowledged,
and placed upon the public records. This deed
purports upon its face a consideration, whether
force a contract, speciGcally, when it would
also refuse to annul it. In such a case th(
parties are left to their remedy st law.
In the present case, as the deed purports e
Mnsideration, it is unnecessary for the defend-
ant to prove one; and the deed is not vitiated
if the QOinpIainants show tliat it was given
without a valuable consideration, unless there
be connected with the transaction, mistake, de-
ception, incapacity or fraud. The mortgage
deed ia impfached by the counsel on several of
these grounds, all of which will be considered
under the appropriate heads.
The second position assumed is a want of ca-
pacity in Mrs. Goodwin to make a contract at
the time the deed was executed.
This is the principal ground stated in the bill,
and it covers a ^eat |Kirtion of the evidence
in the case. It is intimately connected with
S4V*J *the third position assumed — that the
deed was extorted from Mrs. Goodwin by
threats to prosecute her husband — and they
will both be considered as one proposition.
Was Urs. Gooduin of sound and disposing
mind at the time the martf>age deed was exe-
cuted! Did she act freely and voluntarily!
The answer of the defendant is broader than
the allegations in the bill, and although such
parts of the answer as are not rei^jionnivc to
the bill, are not evidence for the defendant, yet
the counsel on both sides Lave considered the
facts disclosed as btlonj^ing to the case. And.
if the facts in the answer not responsive to the
bill are relied on by the complainanl's counsel
as admissions by the defendant, be is entitled,
thus far, to their full benefit.
It may be proper also to observe that no ad-
niasioni in an answer can, under any cirrum-
atancea, lay the foundation fur relief under any
Specific bead of equity, unless it be substantial-
ly set forth in the bill.
Several years ago. It acema, the defendant,
being a clergyman of tha Baptist denomination.
E Uxim ftiana.
Utf
tiad the charge of a. con^egation at Bloeklay,
In or near to Philadelphia, and Mr. airf Vim.
Goodwin were members of that church. Bat
some time before the deed was executed tbcj
removed from the limits of that caogregaticm
and resided in another.
him and the defendant, it was natur*]
that the defendant should consult him. aa to
the investment he was desirous of making in
1822. And it Is not extraordinary that the de-
fendant should have conBded in the integrity
of Goodwin. It seems that this confidence was
not easily shaken; for although the money waa
placed in his hands for investment in March,
1822, yet the defendant did not discover th«
fraud of Goodwin until the last of Januarr,
1S23; and then another fraud was practiced by
Goodwin, by giving another security of little or
no value. It was otider such circumataneea,
and with a knowledge that Goodwin waa aboat
to stop payment, that the defendant called at
his house, charged him with another deception,
nnd insisted on security or immediate payment-
Goodwin threatened him with taking the bene-
flt of the insolvent act, and then the defend-
ant asifcd him if he hnd forgotten the certifl-
cftfe he had forged, and said ft it were brought
Into court he would be in danger of "going to
hard labor."
That these were words of heat and pasKion i»
evident. That there was strong provocatioB
is eijually clear; still, it had b'>en better had
•he not uttered them. The high and (•«»©
holy calling of the defendant should have
fruarded him n;!ainst the InHnence of psssloB.
lie should have remembered that those who
c moat sceptical not unfrequently make the
.j;h('nt exaction of purity in the station hn or-
Lpied. Hut he wai a man of like pasaiona
ilh others, and liable to err.
Dd (he defendant visit the house of Goodwin
ith the premeditated deMini of making tbia
charge, in order to extort from Mrs. Goodwin
promise to indemnify him? That he did I*
most earnestly contrn;Ipd by the counsel for
iplalnsnts. and he is charged with tba
greatest impropriety in mslting the charge
gainst Goodwin in the presence of hia wife.
This Inference is not authorized by the fa«ta
.nd circumstances of the cose.
As was very natural. Mrs. Goodwin f*H
great an\-tpty when she hcnrd the charge, and
that her husband should not be
band should be unable to pay. This was aboat
"i\ years before Mrs. Goodwin executed the
morl'jrage deed. On various occasions, durii^
(he lifetime of her husband, she repeated thix
ine to the defendant, as appears froM
■viilcnce, without his solicitation, and ahe
similar declarations to other persona,
mi;.'ht be expected, the intercourse be
T the defpnilant snd the family of Mr.
fioodnin was, perhaps, sfter this, less frequent
than it had been. On one oceaslan, however,
his good ofllces were requested to prevent the
hibition of the forged words, as evidence, in
I aclicn of slander brought by Goodwin. He
Inierpos'-d, but could not prevent the evidmae
from being olTered.
Peien l«
IU1
jACKeON Br At. T. ASBTOIt.
i»
It doM not appear that the d«feni1»nt thrwit-
Ried I'D commence k prMecution against Ciood-
vin, lint only said what he was IntDnni^l nould
he thp enrctal a proBi-eiition. The facts do not
juatir; the conclusion that the defendant agreed
to suppress the prosecution on consideration of
ths promise of Mrs. Goodwin. That he conHded
in her promise is extremely probable from the
fact that he seems to have made tittle or no el-
tort from this time until the death of Goodwin,
Sve years afterwards, to obtain his money or
additional security.
At leuL'th, in February, 1B28, Goodwin died
rery sudiieni]'. In her distress, Mrs. Goodwin
sent for tde defendant to superintend the last
offices to her departed husliand, and to impnrt
S51*] to her the consolations *of religion,
Tbia is admitted to alTord the highest evidence
of the ci'nfidrnee which she reposed ta the
fHenilship and piety of the defendant.
Did he abuse that eonfldenccT It Is said that
he did. That he seized the oceasion while the
heart of Mrs, Goodwin was broken nnder the
weight of her afflictions to insinuate himself
into her conddeuce, and acquire an ascendency
oper her, that he might wring from her the
debt of her husband. And here the eloquence
of ths counsel has depicted, In strong colors,
the liase, hypocritical, and mercenary spirit of
the ilefendant.
If, indeed, th^ picture )• drawn from the life,
and is not the work of the imagination, it pre-
sents human nature in ao odious an aspect as
to create loathing and disgust.
Called tn ^ve conM>lation to a female over-
whelmed by the sudden death of a husband, to
whom, with all his imperfections, she was ten-
derly attached, and that husband lying a corpse
in the house, or just deposited in the grave;
am It be supposed, without the strongest evi-
dence, that a wretch exists, so lost to all the
better feelings of the heart, as to use such an
occosion to extort from the widow the pay-
ment of a debt?
Both Mrs. Goodwin and the defendant have
gnne to their last and solemn account, and are
alike beyond the reaeii of censure or praise;
but no one could wish the charge against the
defendant, in this respect, to be true. There is
nothing in the evidence to justify it. He did
not name the subject of the debt to Mrs. Good-
win, and when she mentioned it, as he was
alKiut taking leave, he begged her not to give
herself any uneasiness on the subject* and it
was not until near a year after this that the
mortgage deed was executed.
Six witnesses were examined by the com-
plainants to show that at the time Mrs. Good-
win executed the deed she had not the capacity
to make a contract, and that she labored under
ita Improper influence exerted by the defendant.
Some of these witnesses resided with Mrs.
Goodwin, and they all speak of her being ill,
more or less, at difTerent periods of time; as
well before, as after the decease of her husband.
tihe appi'ars to have been rather of a dejected
aiiit melancholy cast of mind, and was often
in • state of despondency. Some of the wit-
netae* speak of times when her mind was shat-
t«r«l or impatreil, while laboring under physic-
al dcbilltv; and they state certain acts which
th«7 ooBsIdered as reaultlng from a miitd some-
what uiMctUed aad wandaring,
t I*. «k
*At one time she refused to attend ['253
her granddaughter to church, who was to bo
received as a communicant; she declined fam-
ily worship; would sometimes not answer ques-
tionsi and on returning from a former country
residence, shortly after the death of her hus-
liand, she seemed to be agitntcd. sat down in a
chair, and burst into a flood of tears. She kept
a boarding-house some time, and involved her-
self in debt. Miss Jarl^son, who refers to these
circumstances, remarks that she never knew
Mrs. Goodwin to say a foolish thing or to do a
foolish act; and except on the OECiisions speei-
fled, her conduct and converjiaLion uure intelli-
gent and rational.
11 would seem from the stntemrnt of the wit-
nesses, that she was as subjeet to depression of
spirits before tfae death of Mr, Goodwin as
afterwards.
Dr. Beatty attended Mrs. Goodwin, aa a phy-
sician; first saw lier in Lombard Street in 1827.
She labored under great mental torpor, but had
no serious organic disease. During the time
she kept a boarding-house In Twelfth Street
she managed her own concerns; did the princi-
pal work of the house, and often went to
market. Mr. Dodge states that after the death
of Mr. Goodwin, she having more business to
transact, was more active than she had been;
but in two or three months she relapsed into
lier former state of mind, and seemed mueh
depressed on tlie subjeet of her bu.siness. The
witness hardly thinks she had suRicient capaci-
ty to transact auy other than the ordinary
business of life.
Some of the witnesses did not think her
capable of conducting the business of a board-
'- - --' certain acts of supposed mis-
calct;
atior
med.
that the defendant occasionally
called to see Mrs. Goodwin, but less frequently
than she desired. In July, after the cIcHtli of
Mr. Goodwin, Miss Long, who lived with Mrs,
Goodwin, was called down stairs to witness a
written paper; and, after signing it, observed
to the defendant that she did not know what
she had signed. Mrs. Goodwin was present.
The defendant said it was a piece of writing
lietween Mrs. Goodwin and him^lf. Mrs.
Goodwin once or twice expressed herself un-
easy aliout the business of th>- defendant, but
there is no evidence tliatat any of his visits hs
importuned her on the sidiject of his cl-iim, or
that be took any active agency in the matter
until about the time the mortgage was executed.
The scrivener who drew the bond and mort-
gage, and whose son drew the defeasance,
states that Mrs. Goodwin, her trustee, and the
'defendant, were present when they {*9ftS
were signed. Much conversation was had on
the subject of the papers, and Mrs. Goodwin
was very attentive to the business. She did not
seem to be laboring under any remarkable
feebleness of bodv or mind. The mortgage was
Intended as colUteral security, and the de-
feasance was drawn on a separate paper. Sines
the commencement of the present suit, the
defeasance was handed to the scrivener by the
defendant, who said he had borrowed it from
the onice; the paper bad not been called for
by the trustee.
Jewell, the trustee of Mrs. Goodwin, statea
that the defendant and Mrs. Goodwin eallad
1»I
2iS Syram Coon tm i
OB him, knd At olMcrvM] Uut ihe wi*h«d to
•xcoute ■ morteiftge on h«r proper^ to teeure
Um dcfeodant m a cUim he had on her late
husband ; and on being aaked if >he had con-
•ulted Mr. Ingrabam, her couneel, ahe replied
thftt the had not, and that he had treated her
with eoolnets. She Mid the mortgage waa in-
tended aa collateral lecuritj.
Sometime after thta, Mrs. Goodwin becoming
•omewhftt embarrassed in her cireumitances,
relinquished her bouM, and the defendant
undertook the lettlement of her accounts.
Some ten or twelve witnesses, who were well
acquainted with Mrs. Goodwin, before and
after her husband's death, and about the time
the deed was executed, were examined by the
defendant to prove that ihe was of capacity to
contract generally. Some of these witnesses
had business with her, and speak of her acute-
DMi and uncommon smartness. Others say
tliat she was a woman of more than ordinary
intelligence; that on religious lubjeeta she waa
nry wall informed. One ot the witnesses speaks
of her as a remarkably sensible woman j heard
her ipeak of the defendant as having been in-
jured by her husband, and that it was right be
should be made secure. She spoke of the de-
fendant's kindness in not prosecuting her hus-
band, and said, as the witness understood, part-
ly for that and other acts of kindness, the de-
fendant ought to be made secure from loss.
On a careful examination of the whole evi-
dence as to the competency of Mrs. Goodwin to
execute the mortgage at the time it was given,
we are brought to the conclusion that the
S3Und of incapacity ia not sustained. On the
y the mortgage was executed she was at the
scrivener's with her trustee and the defendant,
and it does not seem to have occurred, either to
her trustee or the scrivener, that she was labor-
ing under any Incapacity of mind. She took an
964*] "active part in the businew; understood
perfectly the nature of the writings i and her
whole deportment on that occasion showed that
the was capable of acting for herself, in giving
tiie security on her property.
Prior to this period, Mrs. Goodwin had given
to the defendant a covenant to indemnify bim ;
this was tbe paper wlcnesseJ by Miss I-ong in
July, 1828, and which was supposed not to be
valid I the mortgage was given in lieu of this
paper.
Was this mortgage deed executed through
any threat by the defendant to render the char-
acter of Goodwin Infamouet There it not a
shadow of proof to sustain this allegation of
tbe bill, and it is denied b^ the answer.
The threat must be carried back to the con-
versation between the defendant and Goodwin.
in the presence of his wife, respecting the
forged certiflcatei and this was about six years
before the deed was executed. And this cir-
eumatanec is relied on to show that this mort-
gage was extorted from Mrs. Goodwin.
The forgery, aa It was improperly called,
had been fully exposed in the action of slander
brought by Goodwin; so that no apprehension,
on that score, could have been felt by Hr*.
Goodwin. Her husband lived alxnit Sve yeara
after tbe threat; and it appears, if, until tbe
time of his death he did not continue on terms
«f particular intimacy with the defendant, there
w«n» to kava bean bo hoetUit; betwcan them.
I UinTtD Statu.
UST
And can it lie supposed that the conversation
could have so operated on the mind of Mra.
Goodwin, six years afterwards, as to extort
from her the deed In question T The facta of
the case authorize no such conclusion.
Did the defendant exercise any influence
over tbe mind of Mrs. Goodwin which can affect
the contract!
That he relied on the repeated aaaurasees
f^iven by her to Indemnify bun is clear. Dur-
ing the lifetime of her husband he does not ap-
pear to have resorted to any means to compel
payment, and, after tbe death of Goodwin, be
did not obtrude himself into the house of
mourning aa a creditor. He was there, but to
perform the office of a eomforter; and there Is
no evidence which showi any improper anxiety
on his part to secure his debt. Until a short
time before the execution of the mortgnge deed,
so far as the history of the case is known. Hrs.
Goodwin was the first to introduce the subject;
and, on one occasion, c^piewed no small anx-
iety to give the indemnity.
It was not until the covenant was found to
be invalid that he become 'active in the (*SSS
business, and then, it would seem, that he in-
troduced the subject in the moat ileljcate man-
ner. On being informed of tbe invalidity of
tbe covenant, she expressed a perfect uilling-
ness to give the mortgage.
The mortgafe'e doea not cover the entire estate
of Mrs. Goodwin, so that, by giving it, she
did not strip herself of the means of support
It seems that some time afLer the mortage
was executed, on being to]d that tbe defendant
would distress her, she expressed a dttormina-
tion to dispute the deed; but on being assured
by tbe defendant that during her life lie should
not embarrass her by pressing the claim, -iba
became perfectly satisfied. This dissatisfaction
seems to have been excited by one of the per-
sons named as complainant.
That the defendant sliould have felt some
an\iety to secure the claim was very natural.
It was money which came into his hands as the
guardian of his child, whose mother was de-
ceased. But there was no part of the defend-
ant's conduct, either before or sftrr the dcatli
of Goodwin, which shows a di:4|)n9ltion to ex-
ercise a fraudulent or im)jroper influence over
Mrs. Goodwin in this matter. Slie acted vol-
untarily, and, MO far as appears in the evidence,
free from any influence that goes to impeach
the contract.
In taking the defeasance from the olCce of the
scrivener, the defendant ssema to have had no
improper design. He borrowed it from the
clerk in the olTice; probably, and most likely,
forgot to return it. He returned it since the
commencement of this suit, which be wonld
not have done had he taken the paper with a
dishonest or fraudulent intention.
The motive which led Kirs. Goodwin to fAi*
this Indemnity was hi((hlf honorable to ner
feelings as a wife, a Christian and friend. She
had property of her own. She saw that her
friend hod been injured by the frsudutent con-
duct of her husband; and, whilst she threw a
mantle over the imperfections of her husband.
isn
T¥— ™» n Ai^ *. Thi Bahk or i
*nt and Ht«. Goodwin, ibe could nwki no *Klld
eontract with him. He wai herputoruid agent.
.\fter her enibarraiBmenta commenced, at the
request of her tmstre, the defendant did un-
dertake the lettlement of her afTaln, to which
■erriee he leem* to have been pTMnptcd by the
kindest feelings toward* her. We cannot lup-
l&t*] pos« tliat this agency, which wai *m
fact undertaken after the mortgage waa exe-
cuted, could vitiat« an; contra^ About the
time the moKgage waa executed, and before
that time, he seemi to have had no ipeeial
agencj' in the bueineu of Mra. Goodwin.
But be la represented to have been her pastor.
Some jearB before the mortgage deed tras
■igned, Mr«. Goodwin did belong to the church
under the eharg« of the derendant, but this re-
lation had ceased long before the death of
Goodwin-, but if this relation eiisted in fact,
il is not ehargcl in the bill.
Does the prolesnion of a clerg^au subject
him to Butpicions which do not attach to other
men! I* he presumed to be diahonesti
It woald, indeed, exhibit a most singuli
rally respected for the purity of
and their active agency in the
their li , „ ^
eauae of virtue. Thajr are inducntial. It is
true . but their Influence depends upon the
(aithfulneas and zeal with which their aacred
duties arc performed
Acquainted as we are with the imperfections
of our nature, we cannot expect to find any
elasa of men exempt from human infirmities.
But why stioutd the ministers of the gospel,
who as a class are more exemplary in their
lives than any other, be unable to make a con-
tract with those who know them best and lore
ir vicious inclinationa, than all the
Institutions of society. And yet we are called
upon to denounce this whole class, and hold
them incapable of making a contract with those
who are under their pastoral aliarge, and who,
like Mrs. Goodwin, are dietlnguiBhed for their
piety.
Why not give them the same meaaure of
right which la enjoyed by other* t If any min-
iater should become a traitor to his Master, and
diagraoe his high and holy calling by using, for
fraudntent purposes, his influence over the weak
or unwary, the law affords a remedy; and the
proceedings in this case show that the dis-
position will not b« wanting to bring him to an
opinion that the decree of the Circuit Court
ought to be •ffirmed with coats.
«»!"]
■JOHN BRISCOE at nL
THB PRESIDBNT AND DIRECTORS OP THB
BANK OP THE CUUMONWEALTH OF
KENTUCKY.
Kote* of the Bank of the Cmnmonwealth of
Kentucky not billa of credit — what are bills
<rf credit — State no power to m»k» bank
note legal taadv.
• L. «d.
I C0M110NWBAI.TH or KgnruuKi. IH
On the 29tli of November. 1S20, the LeelalstDr*
of Kentncfcj passed sn act establlsblni s bank bj
the aame at -The Bank at tbe Commonwesltli •(
Kentuekj." The Drat section of (he set declares
tbc bank Bbsll b> eaUbllshed "In the name snd be-
bsif ot the CommoDweeltb of KentucliT :" uadeT
the dlrectlOD of a presldeat sod tweln dfrectori, to
be chosen b7 tbe LecLaJstutt. The aecoed aeetlon
■nacli that tbe preBldeat and directors shall be a
the BCtb d
prop.
crtj. Tbe third seclioa declarrs the baak to be ai-
clualralj the propert; of the Commanweallh. Ths
' — -"' section Butborliei tbe Issulna * "'
"- "-Clares the capital to ha Im ui....uu. «
be paid bj all moneya afterwarda paid
luLu iHB tnasurr for the vacant Ian da of the Btata,
and so much of tbe capital stock as wai owned br
Cke Btale In tbe Baak ot Ken tuck f : and as tbe
treaaurer ot the State received those monera, be
was required to paj' tnem Into the uank. The bank
had author! tj to receive moDfj' on deposit, to
make loana oa good persoaal securltj. or on mort-
yond Ita caplial. Limitation! were Imposed on
loana, and tue steommodnHoDB ot the bank wfre
apporllDoed among tbe different oountles of the
i-.taii. The l)aEk was, bj a subseqneat act. author-
ized to Issue ibne millions of dotfara, aod the dlvl-
donila of the bank were to be paid to the treaaurer
of tbe SiBle. The nates of tbe bank wera Isaaad tn
the common farm at bauk notes, In wblcb tne bank
promised to par to tbe bearer do demand the sum
staled on the face of tb? note. The pleadlnfs ex-
cluded [he ctiiirl tram considering that an; part ot
tha capital bad beco paid b; the State : but In tbe
argument af the case. It waa atated and not denied
thai all the Dotea which had hero lasacd. and paj-
ment of which had been demanded, had been re-
deemed bT the bank. Bj an act ot tbe Legislature
of Kenluckv It waa required that the notes ot tbe
bank should be received on all eiecutlona \>y plaln-
tltTs, aod II thej tailed to Indorse on such eiacn-
tloD tbst Ibey would be lo received, turiber pro-
ceedlnga on the Juditment were delajred for two
veers. The Bnnk of tbe Commooweailh of Ken-
hickr InatlCuii'd a aull agnlRKt iho plalntlfTa In er-
ror on a pnimlasorj note for whlrh tbe notes ot the
bank had been given, as s loan. lo the draweis ot
tbe note. The detendants la the salt claimed that
the note given b; them waa vuld. as the same waa
given [or the notes of the back, which were "bills
of credit." Uaued b; tbe State of Kentuckj, agalnet
Che provisions ot tbe Cooatltiition ot the Halted
Slatea, which prohiUU the IkeuIue of "bills ot
cn-dit" b; the Stales at the United atatea 1 and
that the act of the I.eglalatare of Kentuck> which
eetHbiisbed tne bank waa unconalltutionai and void.
By tkk Couai: The act In rorpo rating tha
Bank at tbe Comninnwealtb of Kentucky was a
FonallliillonBl eierclse ot power bj the Slate of
Kentucky, and tbe notes Issued by the bank era
not billa ot credit, wllhln ttic meauing of the Con-
atlliiilOD ot the United Htatcs.
The dennllton ot (he terma "bills of credit" as
uecd in the Constltiitlon of the United Slates, It
□ol Impraclli'able, will be found a work ot no amall
dllBculty.
•Tbe terms hills of credit. In tbe mercsn- [•aSB
tile si'Dse, comprehend a great varielj ot evidences
of debt, which circulate Tn a commercial couutry.
weie eenerBlijr denominated "bllia ot credit;** bnt
and are now called either bank'bllia or bB'nJ!''nnt"B!
Hut the Inhlbltloaa of the Constitution applj to
bills of criMlIt 10 a limited anirii-.
DcacrlptloD ot the bllla of cri'illl 1: tiich were Is-
sued In the eailv bliCorj ot the coloaiea. after-
WBtcIa tbe United State* of America.
The caae ot Craig v. The State ot HlasourL 4
Teters. 410. riled.
The deHnitlon of a bill of credit which Includes
all classes of bllia ot credit emitted by (he cotonlea
and States, la a paper Issued by the sovereign
power, coDtalnlng a pledge ot Ita lalth, and de-
signed to elreulste as money.
II the LcElsmture of a Stale attempt to make the
ites or soy bank a tender, the act will be uncoa-
Itntlonsr; bnt anch attempt could not atfecl. In
ly dcRi'i'E, the conalltutlonallty of the bank. The
t whli'li related to the rerclvlng the notea of the
ink uf ibe Common wealili of Sentocky, was not
npictfd with tbe rliiirli'i-.
Nuris.~As LO what Is a bill of credit within the
..snstltiitlDn of the United SUCcs, aec note to
T L. ad. n. «. Ma. ,„
BvnBus CoDiT flv xaa Ukitkd BtAna,
UIT
(be Stat«a. are resriv
Ot credit. But
... _. ol^Ihese obJsrtB, which
trt csBPnllRl to tbr IntcrsstB of soclptr. Tbit power
la Incident to aoTcrflgat; ; and tbera U no limita-
tion OD [ts exercise !iy tbc RUtes. In rnpect to
the In corpora tloD of bank!. In the federal Constitu-
tion.
At the time of the adoption of the Constitution.
the "Banti of North America," and tbe "Mnaea-
chuaetta HnDk." nnd E'oine otbcn. were hi oijera-
tlon. It catiDOt IhiTprore be itippaaed tbnt the
notes of thrsi' borkH werf Inlfniled to he Inhibited
b; the Canalltiitlon, or that thej were considered
■truDi<-nt. In mnn;!'' of Ibi'lr most dTr'tlngulsblni;
Ulla ot credit. In anj one of tbe Variani fonni In
° rdenIed''to
the iwopLe,
la "bills oi
, ... ._ -.., .hey do not
Include ordlnun' bank notes. It follows that th(
deleaated to tbe frd
the Slatea are TPlalr
and b^^ a fair const
0 the eipi
a)f a
without ^ __, ., __ .._.
that tbe power Is rUhtfiill7 eierclsed.
A State cannot do Ihjit which tbe_ federal Con
Rtate undrr Its aiitborlCj. Tbc act brlnR pro
ed. cannot be done bj a Stale, dlrecll; or
recti;. The lame rule appllea to bllla of <
hill of credit wltbla the Conxtitu-
ImuimJ hv a atstP. on the (altb of
'slened to clrculale a" mooeT. It
which cIrriiiBip" on ibe credit of
an9*| (bu sines* of life. Tbe IndWIdua:
tbeT moflt act as acrnts. and of cours
liaia, an; credit to the paper. These a
Uhen n Olnle ernlla bill* ot credit, tbe amou
be iaaupd Is llxi'd bj law, aa also the tund o
which Ihc}' :<ip Id be paid. If ■a; fund be pli
for their icdcmptlon : anrt they are iasued oi
}Uld 111
r b7 tbe sitmatare o[
" to be sued without
I bill o( credit
1« IM-Il
been brought, at aoi tli — ,_ _ ,.,- ,.
uBalDHt a MnlF ; aad II Is certain that no suit cuutd
bare been maintained on Ibis ground, prior to I'
Const Itot Ion.
Th* case of Crtl* r. The Rtale of Missouri,
,._. — .,n . . Buitiorltj to iiistaln the cla
Hbe"
'££]'*
0 principle decided b;
ise ot LTbIk t. The Stale Of Missouri nhlcb at all
indicia Willi tbe rii^ws preacntt'd bj the uourt In
lis caae. loclcrd. Ihe Tfewa of the court are aus-
tbl_ _
Ulnrd
Ibeoed, b; contrasllng t
Bank of tb« United 5:taiei
The rlaiiteis Bank of Oeorsta. 0 Wheat. D04. el
Tbe cnse of Tbe Uank nt the Commonwealtl
«l'lster at al. 2 Pstara. 816, cited.
10
IN error to tha Oomt of App«Ali af Um 8UU
of Kentucky.
In the Harcer C<T«ult Court of the StaU of
Kentucky, th« president and directnrs ot tha
Bank of the Commonwealth ot Kentucky, on
the 16th of April, 1831, Sled & petitioD of debt,
stating that they hold a note upon the defend-
ants, Oeorg* H. BriMoe, Abraham Fulkenoo,
Maaon Vannoy, and John Briacoe, in aubatanM
as followB, to wft; "Z,048 dollar* 37 eenta.
One hiuidred and twenty days after date, wa
jointly and severally promise to pay the presi-
dent and directora ot the Bank of the Common-
wealth of Kentucky, or order, e,048 dollars 37
cents, negotiable and payable at the branek
bank at Harrodaburg, for value received. Wit-
neaa bur hands, thin Ist of February, 1830,
"Q. U. Briscoe,
"A. Fulkerton,
"MaaoD Vannoy,
"John Briscoe."
The defendatita appeared and Bled [*>■•
the following plea*: "The defendants, aftM
craving oyer of the note, and the tame being
read to them, say that the note was exeeuteo
on no other or further conaideration than that
of another note which had been previously ex-
ecuted by them to the pUinliirt, for a certaia
aum, negntiable and payable at the branch of
the said bank at Harrodaburg, and that tha
note so previously executed was executed by
them In no other or further consideration than
that of the renewal of another note of the like
tenor; and the defendanta aver that previous to
the time of executing the note last mentioned,
the Legislature of the Cammonwealtb of Kui-
tueky, in the name and on behalf of the aaid
Commonwealth, by an Act which passed on the
2gth of November. 1820, eaUbliihed a bank.
the capital stock of which was declared to bt
S2,ODO,000, which said capital stock the said
bank never received, or any part thereof, as
these defendants aver; that by the provisions
ot laid act, the president and director* of the
said bank and their successors in ofHee ner*
declared and made a eorporation and body pol-
itic, in law and fact, b^ the name and style of
"The President and Directors of the Bank of
tlie Commonwealth ot Kentucky;" that, also,
by said act, the president and directors ot the
said bank were illegally, and contrary to the
provisions of the Constitution of the United
(jtAtes, empowered and authorised, for and on
behalf of the said Commonwealth, and upon
her credit, to make bills of credit, to wit : bills
or not«s to an amount not eitceeding $2,000,000,
signed by the president and eouateraigned by
Ilie principal cashier, promising the payment of
money to any person or persons, hia. her, or
their order or to the bearer; and the said bills
or notes were so made illegally, in violation ot
the said Constitution, to emit, issue, and circu-
late through the cnminiinity. for its orilinarr
ptirpoaea, aa money; that under the authority
of tbe said act of the LeglHlntiire, and in viota.
tion of the said Constitution ot the United
States, the said president and directors had,
before the date of the note lest aforesaid, for
and on behalf of the Commonwealth, and o»
her credit, made various bills of credit, to wit:
notes at various denominations, in amount fron
one to one hundred dollars, sig ~ ~
tdent of the aaid bank, and e
Bkhoi bt al f . Tai Bunt of thi Coiii«)innu.TH of Kui'muii.
«d, or bearer, on deiDrknil, tho amo-uot tbcrcia
mentioned in money, ftud were ti-&r.Blerable od
deliveir; and that for the purpose of circulat-
ing aaid notes through the communtty for ita
Sai*] ordinary purpoeea *as money, the Lcg-
blatura of the atiid CtHninoiiKealth, by an act
wawd on the 2etb of December, in the year
1820, had, ainoiiS other things, provided and
declared. In tinbaUnee, that upon all executions
el fieri facias which should be thereafter baaed
trom any of the courts of the eaid Common-
wealth, indorsed, that not«s on the Bank of
KcntucW, or its branches, or notes on the
BsJik of the Commonwealth of Kentucky or
ita bmnchee, "might, by the offlcrr holding
auch execution, be received trom the defend-
anl in diicliBrge thereof." Such executions,
K) indorsed, should only be replerled and
delayed in their collection for the apace of
three montha; but that all executions of fieri
facias, which should thereafter be issued from
any of the courts of the said Commonwealth.
without any indorsement Far the reception of
■otes on the Banlc of Kentuclcy or its bnuichea,
or notes on the Bank of the Commonwealth of
Kentucky or its branches, should be replevied
uid delayed in its collection for the space of
two years, or, if not so replevied, that property
l«ri^ upon under the sajne should be told
npon a credit of two year*.
The aaid president and directors for the like
purpose, and with the like intent, aftrwards,
to wit, on the day of [that being the
dato of the note executed by the defendants
last above mentioned), did, for and on behalf
of the said Commonwealth, for ber brneflt,
and on her credit, illegally, and contrary to tlie
aaid Constitution of the United States, emit
and issue the notes or bills of credit so made
aa aforesaid by the president and directors of
Mid bemk, to tbe amount of (2,048.37, by loan~
Ins at interest, and deliverir.g the ssine to thp
defendant Briscoe. And the defendants in fact
arar that tbe onlj eonsideration for which the
note laat abore mentioned waa executed by
tbem, waa the eroisaion and loan of the said
bOla of credit, so made and iisued as aforesaid
to aaid Briscoe by the plalntilTs, who are the
praaident and directors of the bank aforesaid,
whereof they say that the consideration of the
aaid Ias( Move-mentioned note, executed by
than, waa illegal, invalid, and In violation of
tbe Comtltution of the United States; and t^it
•■eh of tha notes thereafter executed by then
as aforesaid, bjr wav of renewal as aforesaid,
of tiia said last aitove-mentioned note, was
r and this they are ready to verify and
pTw«: wherefore tbty pray judgment, etc,
Aad the defendants, tor further plea in this
bebalf, say that the plaintiffs, their action
aferaaald agalnat them ought not to have and
!•>•] maintnin, 'because they say that th-
only eonsideration for which the note in the
petition mentioned was executed, was Uie re
newal of a note which had been previously sxe
ented by them to the plaintiffs for the sum of
SEMS.ST, negotiable and payable at the branch
nf the Bank of the Commonwealth of Kentucky,
located at Barrodiburg. And the? aver that.
previous to the date of the note •
aforesaid the plalntilTs, under the i
and by the authority of tbe Act of the Llglala-
ture ot the Commonivealth of Kentudey eetisb-
llnhing the Bank of the Commonwealth of Ken-
tucky, approved tbe 20tb da^ of Uarch, 1920,
and contrary to that provision ot the Consti-
tution of the United SUtes which InhibiU aaj
State from emitting bills of credit, had, oa be-
half o1 the said Commonwenlth, nnd upon bar
credit, made various bills of credit, dsned hy
the president of said Bank of the (SimHon-
»ealth of Kentucky, and counlprsigned by the
principal cashier therein; and thereby promis-
ing to piy to the person in each of the said bills
mentioned, or bearer, on demand, tbe rupeM
ive amount in each of said bills expressed, in
money; and the said bills so made and signed
by the said president and cashier, the plaintiffs,
afterwards, to wit. on the day of the date o(
the note last aforesaid, for the purpose of eiron-
lating the said bills of credit, ao as aforesaid
made, through the community as money, did,
for and on bphalf of the said Commonwealth,
and for her benefit, and upon her credit, ille-
gaily, and contrary to the aforesaid provisions
in the Constitution ot the United SUtes, emit
and issue said bills of credit so made as afore-
said, to tbe amount ot t2,04B.37, ot the said
bills, by loaning and delivering the same to tbe
defen.tant, Briscoe, at interest, reserved and
secured upon aaid loan, for the beneBt of the
said Commonwealth, at the rate of six per
centum p^r annum upon the amount aforesaid;
and the defendants, in fact, aver that the only
conai deration for which the note laat above
mentioned waa executed by them, waa the
cmiHsion and loan of the said bills of credit, eo
issued HS aforesaid, by the plaintiffs to the de-
fenijant, Briscoe. And so they say the consid-
eration of the said last -mentioned note was il-
legal, invalid, and in violation ot the Constitn-
tion of the United States; and that the consid-
eration of the note sued on, executed by these
defendants in renewal ot the said last-men-
tioned note as aforesaid, ia likewise illegal, in-
valid, and contrary to the Constitution of the
United States, and tliis they are ready to verify
and prove; wherefore they pray judgment, eto.
To these pleas the plaintiffs demurred, and
the defendants joined *in the demurrer. ['ICS
The Circuit Court of Mercer County gave jnd^
ment for the plaintiffs, and the defendants ap-
pealed to the Court of Appeals of Kentucky.
In the Court of Appeals the following errori
were assigned by the appellants;
1. The court erred in sustaining the demur-
rer of the defendant in error to the first plea ol
the plaintiffs in error.
2. Tbe court erred In sustaining the demnr-
rtr to the second plea.
3. The decision of the court upon each de-
murrer, as well ae in rendering final judgment
against plaintiffs in error. Is erroneous and 11-
Ippal.
On the Sth ot May, ISS?, the Court of
Apptals alTinned the Judgment ot the Circuit
Timt court delivered the following opinion:
"We are called upon in this case to re-ad-
judicate the question ot the eonstltulionality
of the Bank ot the Commonwealth, and its
right to maintain an action upon an obligation
711
Burtmm Coobt v thb Umm Statu.
I^TU !■ eoMiderfttton of « loan of ita note*.
We ooniider this question m having been set-
tied Id the cue of Lampton v. The Bnnk, 2
Litt. 300. If it be true, as contended in ar-
goment on behalf of the appellants, that the
question ia presented on ttie face of the char-
ter, that ease has been incidentallj recognized
Mid oonflnned b; an hundred eases that have
sines passed through this court."
"TTlie cue of Craig v. Missouri (4 Peters) has
basn relied on as ruling this. We do not think
that it does. The; are distinguishable in at
Ittit one important and essential particular."
The appellants prosecuted this writ of ermr.
The case was argued b; Mr. White and Mr.
SoutliaTd for the appellants, and by B. Rardin
and Mr. Clay for the appellees.
Ur. White, for the plaintiffs in error.
The suit is brought on an instrument alleged
to be void, as the consideration given tor it was
a snrrenc; prohibited by the Constitution of
the United Btatee. It was given (or the notes
of the Bank of the Common wealth of Ken-
tucky; and the question which is presented by
the record, and which is now to be decided t^
this court is, whether the law of the Stats of
Kentucky establishing the bank, was not a rl-
olation of the provision in the Constitution of
St4*] the United 'States, which prohibit* the
States of the United States from issuing "billi
The case is one of great importance, and tbe
decision of this court upon it is looked for with
deep solicitude. It was before the court at a
former term, and was then argued at large.
The court directed a re-argument.
The facts on which the plaintiffs In error re-
ly, are fully esUblished by the pleadings. The
pleas in the Court of Wercer County state the
nature of the institution eatablished by the act
of incorporation, and that It had no fund* pro-
vided for the payment of the notes issued by it,
and that the fund* provided by the law were
never paid to the bank. Tlie plaintiifs de-
murred generally, and thus the tacts stated In
the pleas are admitted.
The unconstitutionality of the law is stated
tn the pleas, and the Court of Appeals of Ken-
tucky decided on the question thus presented ;
the ease Is then fully within the provisions of
the 2Sth section of the Judiciary Act of 17B9.
It will be proper to establish the jurisdiction
of the case before proceeding to the other mat-
ters involved in it.
The plaintiffs assert that the charter of the
bank ii a violation of the Constitution of the
United SUtes. It is the exercise of a claim by
the State of Kentuclcy to establish a corpora-
tion, which, for the uses of the State and for
ita exclusive benefit and profit, lias the author-
ity, by its charter, to issue bank notes, and to
circulate them as money. This, the plaintiff*
in error asserted in the court in which the suit
wa* brought against them and In the Court of
Appeals, waa issuing bills of credit by the
State, and In direct conflict with the prohibi-
tion of the Constitution.
The repugnancy of the charter, a law of the
State, to the Constitution, was alleged, and the
decision was against the alle^tion. The courts
of Kentuelnr, the plaintiffs in error say, mU-
eonstrued the Constitution by the decision. The
Court of Appeal* expresslj' say th«y are cftlled
upon to adjudlcata on the eonstitntloBalIfy Is
the law; meaning, certainly, the constitutional-
ity of the law as it was alleged to be in opposi-
tion to the Constitution of the United St«t<a.
All tba decisions of this court on the qnea-
tion of jurisdiction, sustain the right of^ the
court to decide on the questions brought up bj
this writ of error. These decisions were care-
fully reviewed at the last term, in the case of
Crowel] T. Bandall (10 Peter*) ; a reference to
that case is sufficient to auatain the jurisdiction
now asserted.
'Upon the question whether this court [*SIB
ha* decided that a corporation, such a* that
which is the defendant in error In this case, can
have a constitutional existence, for the pur-
poses for uhich it was enacted, has not been
decided; it is submitted that no such decision
haa been made. The caae of The Planters'
Bank of Georgia, 6 Wheat. 304; E Cond. Rep.
7S4, contains no such decision. In that csso
the State of tjeorgia had but a part of tlte
stock of the bank; the bank had an actual
capital, and was conducted for the beneSt of
the whole stockholders. This court held thst
a State might become a stockholder with other
stockholders In the institution, and that by so
doing the bank did not become exempt frmn
suits, on the suggestion that the suit was
against the State of Georgia. Nor did the de-
cision of the case of Wister against the same
defendants as in this cose, determine that the
Bank of the Commonwealth was a constitution-
al body, because the court sustained a suit
against the bank. The charter provides that the
bank may sue, and may be sued. The action of
the court in that cose was in harmony with the
law. It the State of Kentucky was, as she
certainly was, and now is, the only party inter-
ested in the bank; yet a suit authorized by her
own law could be brought against the bank.
The bank has, by its charter, a riF^ht to take
mortgages for debts due by it, and under a
judgment against it, those mortgages might be
made subject to an execution or a judgment
obtained against the bank. The process of exe-
cution wouid not, and need not go against the
State.
The question of the constitutionality of the
bank, and of the right it had under the act
establishing it to isEiue the bills, for which the
note upon which this suit was given, is now
flrst prcsenti-J to the court. While it is as-
■erted that the decision of this court in the
case of Craig v. The Slate of Missouri, 4
Peters, 430, will in all respects sustain the
position taken by the plaintiffs in error, that
the notes of the Commonwealth Bank are bills
of credit, it is admitted that in that case the
bills of credit issued by the State of Missouri
were different from those issued by the defend-
ants. The obligations of the State of Missouri
bore interest; a circumstance to which gre*t
importance was assigned by Mr. Justice Thomp-
son, who delivered a dissenting opinion In that
The Commonwealth Bank of Kentuckr waa
established In 1B20, durinr a period of great
pecuniary distress; tor which it was, by thoae
who created It, expected to afford relief.
While it waa declared to be founded on fundi
provided for It, or assigned to it by ttte State,
1S»
n Ai. V. Thi Bark or tHK Comhonvkauu or kcnrccBx.
d«dar«d tliftt ecrbiin Ivida night b« paid
for bf the notei of the bank; it directed the
propuif which the State held in another bank,
then in great anbarrasament, and which had
•napended pajoient, ibould b« paid to the
Bank of tlie Commonwealth; but the Bank of
the Commonwealth had no control over the
i«nd, and the property of the State In the old
Bank of Kentucky waa never made availabie
to the buiinesB of the new bank. Thua the
t*nk had no funde, and all the officera were
appointed bj the State. They were the afenta
of the State, to conduct the busines* of the
bank for the benefit of the State. Its capital
w»a, nominally, two millioni ot dollars; and
note* purporting a promise to pay certain turns
were iaeued and put in circulation in the form
of loans : the State having the profit of the in-
terest ehiirged on the loans. As no funda were
in poasession of the bank, these notea were
taken on the faith and on the credit of the
State, exclusively, and oalj.
acter of the transaction. If they had been put
Into circulation by a State otBcer, it would not
b« denied that the State issued them; but there
is no substantia' or valid difTerenoe between
auch a mode of managing the issues, and that
odoptei' by chartering the Itank. The notea
were in tact made s tender. The law of Ken-
tucl^y obliged the plaintiff in an execution to
receit'c them in aatislaction of bis judgment,
c tj submit to a deferred result of his pro-
Beedinip against hit debtor. The property ot
tb" defendant was ti Lie taken at an appraise-
tuent, or It could not be sold for a considerable
period, 11 the notes of the Bank of the Com-
monwealth were refused, when tendered in
satisfaction of the debt.
Thu th notea of the Conuaonwealtb Bank
were in all respects the same, In substance, aa
they were In form, "bills of credit," prohibited
bv the Constitution of the United States.
Tl. promise to pay was the promise of the
Stat*- of Kentucky by its agent the president
and cashier of the bank; the notes or bills w~~~
circulated ac money, and they might also,
effect, be made a tender in some cases. It is not
eaaentiai that the notes should be a tender to
make them bills of credit. The court
ferred to the 44th number of The Federalist for
the riews of Mr. Madison as to the nature of
the eonstitutiona) provision against the iMue of
bills of credit and as to the construction of the
provision in the Constitution. Bills of credit
and paper money are synonymous. The abuse
of paper mon^ during the difficulties of the
IfT*) revolutionary war, and the 'ruin which
It* extravagant issue produced, were the causes
of the constitutional prohibition.
It is not intended to place the charters of
banka, derived from State laws, having a capi-
tal famished by the atoekholden, or the notes
of snch banks, in qneatlon, in this ease. They
may rest in safety on other principles; and the
practical construction given by the State* of
the Union to the provision of the Constitution
which Is under examination in this case, may
put all questions of the validity of such char-
What Is a bill of credit within tlM meaning
of the CoiiaUtatioat
Our courta seem to have considered tha !>•
terpretation of these terms a matter cI mum
difficulty. "The term 'bill of credit' seldom oc-
curs in the books," says Judge Huger, in deliv-
ering the opinion of the Constitutional Court of
South Carolina, in the ease of James Billia r.
The State [Januaiy Term, 1822, 2 M'Cord, p.
IC) ; and the learned Judge adds, "but when
used, it is always synonymous with letter of
credit, and this appears to be its only technical
signification."
In the case of Craig t. Missouri, 4 Paters,
442, the late distinguished and lamented aaso-
ciate of this court, Mr. Justice Johnson, aaysi
"The terms 'bills of credit' ara in themselves
vague and general, and at the present day al-
most dismissed from our language." In the
Mme ease Mr. Justice Thompson says, "the
precise meaning and interpretation of the terms
'bills of credit,' has nowhere been settled ; or,
if it has, it has not faJlen within mr knowl-
edge." 4 Petera, 447. Mr. Justice M'Leao d«-
elares, "it will be found somewhat difficult to
give a satisfactory definition of 'a bill ol
credit.' " p. 4B2.
It would be the height of presumption. In the
face of such authorities, to say there is no dif-
ficulty; nevertheless, ws may entertain a strong
conviction that the terms have a clear and pre-
elae meaning.
It ia evident that the meaning of the term
used in our own Constitution is moat naturally
to be sought for. first, in our own history.
Yet, on the arguments of the question here-
tofore, only two historical references have been
made.
We propota to submit references from the
history of each State; not merely to show
what "bills of credit" were, but what evils
resulted from them. The pait mischief is an
essential part of the Interpretation of the fu-
ture remedy. By learning what and whence tlip
•country suffered, we shall learn what ['268
the convention intended to prevent.
Mr. White, submitting to the court a printed
argument on the part of the plaintiffs, pre-
ared by Mr. Wilde and himself, after the
TTter arguments of the ease, went into a par-
ticular examination of the proceedings of the
different colonies, afterwards the States of the
United States in relation to the issuing of hills
of credit, or obligations for the payment of
money, for the use of the several colonies and
States; citing from the legislative acts, and
from historical works, the provisions of the
laws on the subject, and the actions of the
governments of those States In reference to
such measures. It was shown by these refer-
that Massachusetts, New Hampshire,
Connecticut, New York. New Jersey. Penn-
sylvania, Virginia, North Carolina, South Car-
-''na, and Georgia, had resorted to measure)
supply a temporary, and sometimes a long-
itinued currency ' - '- '
•^per bills of i
bank bills.'
Nor was the tstuing of bilU of credit, be-
fore the adoption of the Constitution, confined
to the issues of States; but t1i» term wns em-
ployed to desijinale the paper money emitted
by Congress. The resolutions of Congress nu-
thoriiing the different emissions were cited
from the journals of Congress. The issues com>
3IS
SvrEXMi CoDBT or -an Uihtxd Btatkb.
■anecd on th« ted June, 1TT4, kd<) th^ m-
eeedtd four hundred uid flft; mflliooB of dol-
Un. Thc7 cMicd to circulate aa mone^, on
tho 3Ut M»7, 1781, although alterwftrdt
bon^t OD apeculatlon, at variau* prices, from
four hundred dollan in paper [or one dolUr in
qioete, up to one thousand far one.
On the IBth Beptember, ITSB, Congreu re-
•olvcd that no paymenta of recfuisition* on
Um States ihould be received in bilU of credit.
or In anything but specie. They alio re-
■olved that bilU of credit should not be re-
Mived for postage, and that postage should be
ptid on the lettera when put into the ofDea.
4 Vol Journ. of Coi^. 698, SSQ.
The efTects of this tyateni of paper mone;
were ruinous to the whole community. Specie
waa driven out of circulation, and all prnpertj
was placed in eonfuaioo and great deteriora-
tion tn value. The common intercourse of
buaincas was suspended, or carried on *ith dis-
trust and suspicion. Barter was Introduced,
and the impediments to all transactiona of ez-
•hange became almost insuperable.
It is contended that bank biili and bills of
credit are, in eveiy important particular, lub-
ttantially and essentially the same.
>••*] *Hr. White then proceeded to exam-
ine tho different colonial and State laws for the
•mission of bills of credit, asking the court, be-
fore the tame was made, to note the material
iM>tnU of distinction supposed to exist between
''bank bills" and bills of credit. He said
they were,
1. Bank hilts are not issued directly by the
State. 2. They are not issued on tlie mere
credit of the State. 3. A certain fund is
pledged for their redemption. 4. They are
not legal tender. 6. Tliey are payable in
The court are to remark the character of the
bills provided tor by the different acta intended
to be sited. In reference, especially, to those
points of supposed distinction, it nil! he found,
1st. That the bills of credit were issued no
more directlv by the Stote than the bills of the
Commonwealth's Bank of Kentucky.
2d. llhat the bills of credit were very tn-
quently not a legal tendrr.
3d. That the bills of credit were sometimes
payable |nominally) in specie.
4th. That the bills of credit were rarely is-
sued on the mere credit of the State.
Sth. And that, almost always, a certain fund
was pledged for their redemption.
If the court, by this scrutiny, Snd such dis-
tinctions disappear, as no others have been
taken, it will result that, essentially and sub-
•tantialljr, ths bills of the Commonwealth's
Bank of Kentucky and bills of credit are the
same. And by making It in reference to each
act aa It is read, the trouble of instituting a
comparison of each law on each point, after-
waros, will be spared both to the court and
Mr. Wblte then cited the various acts of the
aeveral States jproviding for the issuinir of such
"paper money, " obi i gat ions," "bills of credit,"
or "bank bills," and "notes," and "treasury
If it Im eontended, then, he said, that the
KOtcB of the Commonwealth's Bank of Ken-
tiMlqr are vot bill* of credit, baoause they are
114
not issued or cmittwl dlraetly by ■ State, wa
1st. That in every Instance the anti-revolo-
tionary bills of credit were prepared, signed,
and issued by a eommlttee, oommisaionen, or
2d. That as % State can act only through her
agents, it follows that what she does tkrough
her agents she does herself.
3d. We arall ourselves of tlie forcible azprea-
HJons of ons of the 'learned judges of [*il7V
the court, in the ease of Craig et aj. ▼. nie
Stat£ of Missouri (Mr. Justice Johnson), who,
though dissenting from the judgment of the
court in that case on other points, was In our
favor on this.
"The instrument (the Constitution) is a dead
letter, unless its effect be to invalidate aveiy
act done by the States In violation of the Con-
stitution of the United States. And as the
universal modus operandi by free States must
l>e through their Legislature, it follows thai
the laws under which an^ act Is done importing
a violation of the Constitution must be a dead'
letter. The language of the Constitution is,
'no State shall emit bills of credit/ and this,
if it means anything, must mean that no State
shall pass a law which has for its object aa
emission of hills of credit.
"It follows that when the officers of a StaU
undertake to act upon such a law, they act
without authority i and that the contracts en-
tered into, direct or incidental, to such their il-
legal proceedings, are mere nullitiea."
"This leads to the main ouestion: 'Waa tlti*
an emission of bills of creoit, in the sense of
the Constitution T' And here the difficult
which presents itself is to determine whether
it was a loan or an emission of paper money;
or perhaps whether it waa an emission of paper
money under the disguise of a loan." "There
cannot be a doubt that this latter view of the
subject must always be examined; for that
which it is not pennitted to do directly cannot
be l^alized by any change of names or forms.
Acta done in fraudem legis, are acta 'in tIoIa-
tion of law.' " 4 Peters, 441.
It cannot, we presume, be doubted that tke
Constitution was intended to prohibit all thoee
paper substitutea tor money, whatever were
tlieir particular forms or sliailes of difference,
which had, before that time, gone by the gen-
eral name of bills of credit. It inUnded to
make this a hard money government, perhaps
entirely so, certainly as far as the States wera
concerned. If, by omitting some, and insert-
ing others of the forms, peculiarities, proper-
ties, or attributes of the different bills of cradit
issued before the adoption of the Constitution,
one could be formed dissimilar in many impor-
tant particulars from' any which had ever nt
been issued ; we humbly contend, notwith-
standing such variation, it would still be a bill
of credit within the meaning of the Constlto-
tion. May we not ask, then, in what essential
particular do the bills of the Common weal th'a
Bank differ from the anti-revolutionary bills ot
*Th« latter were issued or "emitted," [*ST1
to answer the purposes of moneyi a eiroolftt-
ing medium, a measure of value, and an In-
strument of exchange. So were the foraar.
Do the hills of credit pledge » partienlar
ISM
Rbimm b( At. *. tsM Bank or thb Ocnmoinnum of Emtucrli.
<T1
fnsd for their payment T So do the Common-
wealth's Bank. The billa of credit were ro-
eeivable in all debts due the public So were
the note* □! the Commonwealth'i Bank.
The bllla oi credit were lonietiniet, though
not always, a legal Under. The bill* of taa
ComtnoD wealth 'a Bank were a qualified tender.
If the plaintiflf did not receive thenl, hia exe-
cution was itayed.
The bills of credit were Isaued through the
iDstnunentslitj of agents, for the heneflt of the
colon*. The bilii of the Bank of the Commoa-
wealUi were issued bj agents, appointed by the
State, for tlie beneflt of the State.
Upon the term "emitted" then eannot, in
thia caee, be raised a question.
With respect to a loan-office certificate, which
might, perhaps, be bona fide given upon an
actual loan, aa the authentic evidence of the
creditor's right and of the State's obligati
question might be raised whether such i
•trument could be said to be "emitted,"
bill of credit ia emitteil, that ia, to act
•iibstitute for, and perform the functions of
money. But that the bills of the Common-
wealUiV Bank were ao intended does not admit
of a doubt. It ii ao expressed in the preamble.
If it be eoiitended, as by the Constitutional
Court of South Carolina, that this is not a bill
lit because a particular fi
t apart for tlie redemptioi
1st. Thexp funds are i
State; the pledge is the faith of the StaU.
These resolve thcmselvea at last into the credit
of the State. Credit ia given to ber because
of her faith and revenue. If she break ber
fkith or squanders her revenue, she loses her
2d. Almost all the anti-revolutionary bill* of
«redit )u^ fund* pledged tor their redemption.
Land* or taxes were always set apart as a sink-
ing fuud. Yel the bills of credit ao secured
-ware founa as miacbievoua as the rest, and in
the Constitution there is no exceiition ; the de-
nunciation is genera] aa to all bills of credit.
The other distinctions taken at difl'erent
times are: That these are not to be considered
bills of credit, because they are redeemable on
S71*] 'demand. The term of the credit can-
not make a difference, whether It be a day, ten
days, or a year. The promise to pay is the ea-
■ence of the contract. It 1* the promise which
obtains credit, and credit ia given to the
The bills of eredit iaaned by many of the
aolonies before the Revolution, were, in fact,
payable on "demand." They admitted the
debt to be due by the colony. The bill was to
be a* money, to the amount of its contents,
and to l>e accepted in payment, etc., etc
Vide forms of these bills in the laws of Con-
neotieut, 1709, 8 Anne, p. US; Laws of Rhode
Island, 1710, 9 Anne, p. SO; Laws of Maasa-
cbusetta, 1702, 1 Anne, p. 171; Laws of Fenn-
■ylvanla, 1709, 8 Anne, pp. 230, 231.
We have now shown that, subatantiaily and
eaaentially, bills of credit and bank bills are the
same. We have shown that all the supposed
diatinetions are fallaoioua.
That bank bills are issued by agent* of a
Stata, and bill* of eredit ware issued by agent*
of tke State*, which can never art biu bf
agents; and the only differmm li, that tht
agents are ealled by different names.
That the bills of credit were not always a ]»■
gal tender; that they were not isaued on th*
mere credit of the State; that they bad almost
alway* a fund to support them; and that tbey
were frequently payable in specie.
The prohibition in the Constitution waa in-
tended to secure the future against the evils of
the past. The remedy w*s intended to be co-
extensive with the mischief. It was intended
to reach not name* merely, but thing* also.
The object was not merely to prohibit thoa*
Erticular kinds of paper currency which had
retofore been issued or emitted by the colo-
nies or States, but everything which, up to that
time, had borne the name, or which ehould
thereafter poases* the character, assume the
place, and i>e within the principle and mischiof
of bills of credit.
Still, it i* contended, tfae term* are not iden-
tical ; it is said we have not shown that bank
bills and bills of credita have ever been used a*
synonymous or convertible terms. We have
shown that the things are not the same.
But it is insisted that the names are different.
It will be shown, then, that there is no differ-
ence even In name; that bank bills and bill* of
credit are, or at least were once, synonymous.
The requisition is aomewhat hard, but ws will
attempt iL
■Bank bills are bills of credit. It ia [■X7S
not necessary that on the face of the note it
shall be called a bill of credit. In its form It i*
a promisBory note. The paper money before
the adoption of the Constitution waa not on it*
face called a bill of eredit, it wa* in variou*
terras, promises to pay money; but in all tbs
legislative acts cresting them, they are called
bill* of oredlL It ia demonstrated, therefore,
that, in order to make a particular instrument
a bill of credit, it need not b« lo denominated
on ita face.
But the bank bill la, in form, a promissory
note. Where do you find promissory note*
called "billa of creditt" Promissory notes and
bill of eicbange, or negotiable paper generally,
as it appears from Matjne, were originally
called bills of debt, or bills obligatory. They
were called bills, though, from the form given,
it is evident they were notes. They were de-
nominated bills of debt, as being evidence of
indebtedness.
But, subsequently, either because they were
not always evidence of debt, but were general-
ly on time, tbey came to be ealled bilta of
credit They were also Balled bills obligatory;
though it is apparent, from the form and oon-
text, that they were not sealed. Indeed, the
seal belonged to the common law, rather thaa
the law merchant. Ita use waa for thoae who
could not write, which merchant* u*ually could
do, though barons could not
The Constitutional Court of South Carvlfna,
len, are mistaken when they aay "the term
"bill of credit' seldon] occurs in the bonds; but
when used, is always ayaoaymous with letter
of eredit; and thi* appears to be it* only tech-
nical signification." 2 M'Cord, lo.
Some old books do, Indeed, give the form of
a letter of eredit, which they call a bill of
credit. Postlethwaite'a Diet., tit. Bill of
Credit; 4 Comy4'* Pig., tit- Uerehant, F. S.
?«»
««
Sdtvkhc Covwt 09 THi Vnttm Btatib.
But lUlyne (|:i*M a similar form, ftiid calls it
what it has always since b«en called—* letter
of credit, not a bill; while the term "bi
of credit" might, with the least industry, hfti
been found b; the ConstitutioEial Court In a
hundred places. M'Flieraoo'B Annals of Com-
merce, vol. 3, p. 612, in the library of Con-
gress: "This year [1(183] Dr. Hugh Chamber-
lain, a physician, and one Robert Murray, both
great projectors, made a mighty stir witb their
scheme of a bank, for circulatinE bills of credit
on merchandise to be pawned therein, and for
lending money to the industrious poor, ou
pawns, at six per cent, interest; yet it c«me to
Dothing."
Mr. White referred to a number of author)'
174*j ties in mercantile treatises, 'and histor-
ical and other works, to show the origin of bills
of credit. Many of these treated of bank bills
bills of exchange, promiasoi v Hiilm. bille ublig-
atory, and instruments of tliat dcsL^ritition, ''us
bills of credit." They were sub8ti.,uted for
specie for convenience, and often to supply a
deliciency of specie. Proceeding in the argu-
L)' this time, it appears to us, we have gone
far towards showing tlmt bank bills are not
merely, substantially and essen'LJally bills of
credit, but that Ihcy are identically the same.
I^ills of credit is tbe old name for bank bills.
Tlie longer name bus worn out of use, from a
philosophical principle in language, which
seeics conciieness, perpetually. Men of busi-
ness never use tliree words, habitually, when
the same thing can be expressed by two.
Our proofs, however, are not ex)iausted.
Let us mterrogate the t«ok« theoiaelrus. What
arc their bills called in those charters from
whence they derive the light to issue themt
The ea.h section of the first clmi-ter of the
Bank of England {S and 0 William and Mary,
eh. 20, sec. 28) speak* of the paper to be circu-
lated by the bank as "bills obligatory, or uf
credit," The charter of the Bank of Pennsyl-
vania of 17113 uses the same terms. In the
charter of "the Xew Jersey Miinufacturing
Company," granted in 1823, the terms "oblig-
atory, or of cr.-dlt," are usi'd. In the charter
ot the Pan'i of Virginia (2 Revised Code, 73,
•ec 13), "bills obligatory, or of credit." are
mentioned. So, also, tbe same terms are em-
ployed in charters of banks in North and in
Bouth Carolina. The terms, "bills obligatory,
or of credit," arc emiiloyed in the charter of the
Bi>nk of Augusta, granted by Georgia.
Prince's Dig. 32. So, also, in the charter of
"the Plantcra' Bank" (Prince's Dig. 39), and
in that of "The State Bank" (Prince's Dig. 43),
the terms are used in reference to the paper
issues of those institiitiona.
If it Is contended that these terms refer to
bills under the seal of the banks, and to letters
of credit giveq by them, the answer is obvious.
There are no other clauses in their charters
which can be tortured into an authority to Is-
have been issuing notes without any authority
whatever.
Judicial decisions have treated the noles for
the payment of money as bills of credit. 2
U'Cord. 16, IT, IB; Craig *. The BtaU of Mis-
aouri, i Peters, 425.
(1«
With respect to the third point of tb« appal-
lees — that the bank 'may be unconsti- [*aTB
tutional, and yet the appellants bound t» p«y
their note;
Tbe answer fs ohvloua. A contract made
contrary to law is an act in fraudem legis. It
is consequently void, and will never be en-
forced in the courts of that country whose laws
are attempted to be evaded. This principle b
so well settled aa to be stored away amoof
tbe estabtiabed maxims of jurisprudence.
The case of Hannay v. Eve, ia 3 Craneh,
Zt7, is sa strong a one as can be well imagined.
Craig v. The State ot Missouri only followa up
that decision. 4 Pet era, 426.
Mr. B. Hardin, for the defendanta in error,
stated that he was present when tbe law was
passed by the Legislature of Kentucky, and
although he did not approve of it, he was a
nitrtct« Ln rJl Ibat look place at the time of iU
Great Britain, and many persona in Kentucky
had become embarrassed, by having made large
purchases of those goods. In this state of
things, remedies and expedienla were resorted
to wiiicb, like all quack medicines, failed In
their effects, and left the disease ulipre tbey
found it, or in a worse condition. It bns been
said that tbe old colonial laws which provided
for the isEuing of a paper currency were re-
sorted to by those who drew the law establish-
ing thia bank. This, most probably, waa not
the fact. The framers of tbe law intended to
provide tor the issuing! of pa)ier by tiie bank,
und they used language which would earrj
their object info effect. They did not know of
those laws; certainly they did not renort t«
them. The purpose of the Legislature in es-
tablishing the bank waa to give to it a subslao-
tiul capital, competent to discharj;e all tha
liabilities it might assume: a capital as suOi-
cicnt us could be provided for any iniilitution
for banking purposes. By the ultimate re-
demption of all of the pnpor of the bank, the
aulTicioncy of the c.ipitiil was proved. This is
fully shown liv tlir; [rovi«ionB of t'l" "eveu-
teentli section "of the low. The lands of the
State east of the Tennessee River, a large and
a valuable body, which, by the agreed line be-
tween the State of Kentucky and Tennessee,
amounted to about two millions of acres, and
also other lands of great value, owned by the
State, were made liable for the notes of the
bank. In monry, these Innda were worth from
five to six millions of dollars. All tbe interest
the State had in the uld Bank of Kentucky was
pledged, by 'the law, for tbe redemption [*SIS
of the obligations of the bank. The amount of
paper allowed to be issued was not equal to
that permitted to other banks, in proportion tA
tbe aecurity given for such issues. The objee-
tion to a want of capital of thia bank is, there-
fore, without foundation; for an equal capital,
or propert.v equal in amount aa a security for
tbe operations of the institution, has not, in
inslance, been exceeded.
is said the paper of the bank fell below p«r.
ia Dot in the record ; and if that fact should
be allowed to have an influence, other mattera
ihould be introduced- The value of tht notaa
vas diminished by tbe conduct of the borrav-
P«t«n II.
un
'. Thi Bakk <w the CoimoinraAtn w Kmtooki.
tn
•n of tha bank, who had UKd them at bar for
tbair private purpoaea, and who had uaed them
fOr their full value. No meaaiirea whlfh could
brine the notes Into diacredit were attrihutable
to the bank, ajid the amount of the paper Isaued
waa eoDStantlj in progrcuive diminution, b;
Ita beinv destroyed when paid tn for taxea and
for landa. The lawa of the State dtreeted that
the notee of the bank ihould be received for
tha public landi in the aame manner and as of
the aama value ai the notei of other banki paj-
iag gold and silver. The receiver of the pro-
ceeda of the lalei of the public lands Mutn of
the Tenneeeee wa* directed to take the note* of
the bank for landa. Pamphlet Laws of Ken-
tuck; of 1624, sec, B. Under the operation of
these provisiona, there was received tor taxes
and for lands bj tb« bank, and b; the old State
Banlc of Kentucky, the notes of the Bank of
the Commonwealth, to the amount of nearlf
ail hundred thousand dollara, which were can-
celled and burned.
In this manner almost the whole of the Issuea
of the bank have been returned to it, snd it Is
believed that before the suit now before tlie
court was brought, all the pnper, with the ex-
ception of about forty thousand dollars, had
been rettirned to the bank. Paper of the bank
tr the amount of about forty thousand dollars
cannot be found, and is supposed to be Irre-
trie^ablj lost. Thus all the note*, with the ax-
eepli'i of those lost, have been redeemed.
By numerous sticceaaive acta, the Legislature
of Kentucky directed that the notes of the
bank, aa they were redeemed, should be
bomed, and this was done. Cited, (Session
Lawi of Kentucky of IS25, 1S2S, 1827, 1830,
1S32. After all the notes were thus satisfied,
o> TadceiDed by other banks established under
charters from the State, the public lands,
which had been pledged for them, were dis-
tributed for school and road purposea.
ST 7*] 'The objections to the charter on the
ground of there having been no capital pro-
vided for the hank do not, therefore, enist,
and the ouestlon which is alone presented for
the consi aeration of the court, is whether the
b>nk was constitutional, aa the State of Ken-
tucky was the only corporator. It differs from
many other banks In this only — the State alone
fa the corporator, or stockholder. In many
other hanking Institutions, States are joint
stookbatders and eorporators.
In the charter of the Bank of the Common-
wealth, there is no pledge of the faith of the
Stat« for the notes issued by the institution.
The capital only was liable, and the bank was
suable, and eould sue. The bank was sued)
and in the cose of Wister v. The Bank of the
Commonwealth [4 Peters), this court held that
a* against the eorporatlon, tlie suit was well
brough
;ht..
t la uneonstitntional for a Stata to b« ft
eorporator, how can she be a corporator for »
put of the capital of the bank! If the State
cannot alone be a corporator to issue paper, abe
cannot be in part such, and the Constitution of
the United States is violated as well by the
issue of notes for one dollar as for one thou-
sand; by the issue of notea, of which a State is
one among many of the corporators bound to
Cy them, aa well as if she hod alone become
und for their payment.
• li. «dU
What is the difTerence hatwean tha Stata ha-
Inar a corporator, or taking; a bonus for estab-
lishing a Dank, and authorizing the eorporatlon
BO erected to issue notas. The sale of a eharter
by a State for a bonus is ths sale of the privi-
lege to issue notes, which, if ttw State had not,
she coald not grant; she gives the bank thna
established power to Issue notes for her beneflti
a benefit she has secured in advance by tha
payment of the bonus to her.
It is submitted that if the notea of tht Bank
of the Commonwealth are "liillB of credit,'
and the Issue of them was prohibited by tha
Constitution of the United States, the notea of
all State banks are equally prohibited. Before
this i^uestion is approached, it is desirable to
place it before the court on ita true grounds.
The provisions of the Constitution are: "No
State snail enter into any treaty, alliance, or
oonfederation; grant letter* of marque and re-
prisal; coin money; emit bills of crallt; make
anything but gold or silver coin a tender; pass
any bill of attainder, ex post facto law, or law
Impairing the obligation of oontraets; or grant
any^litle of nobility (art. 1, see. 10).
rrhe powers granted to the govern- [*37S
ment of the United Etatea of coining money are
exclusive; so are the powers to establish post-
olTices and post-roads; and in addition to the
frant of these powers, there are the express iu-
ibitfons to the States, which forbid their coin-
ing money, making tender laws, and iasuioii
bills of credit.
It is claimed that makins them a tender is a
portion of the character of a bill of credit, aa
the same was intended by the Constitution,
Each prohibition is separate. If the States
could make anything a tender but gold and ill-
ver coins, all wouM be confusion. What waa
meant by "a bill of credit," is not stated in tha |
Constitution, and is thus left undefined; w«
must look for the meaning of the terms else-
where. We must look to the uses of the terms
in past times: and on this search wa find
great difficulties, from their different applica-
tion to different obligations for the pavmeot at
money, and the peculiar eharacteristica of
those obligations when issued by States or
political communities. We look to colonial '
legiBtation, and to the praetiees of States, and
we are unable to ascertain from tbese, the true
sources of information, with accuracy, what
those who framed the Constitution intended.
Sometimes the bills issued under State or colo-
nial authority were made a tender, and some-
times they were not. This ia aaid by Mr. Chief
Justice Marahsll, in the ease of Craig v. Tha
State of Uisiouri. In the first luue o7 bills of
credit br Masiachuaetts, they were not made a
tender m payment of debts: afterwards, this
character was expressly given to them. In
South Carolina they were made a tender, i
Ramsay's Hist, of South Cnrollna, 164.
But there was a onlversal feature in all tha
bills of credit isaued before the formation and
adoption of the Constitution of the United
SUtes. The faith of the State, or of the dov-
emment which issued them, was always pledged
tor their redemption. This was ever the fact.
Another feature and characteristic of thna
bills of credit was that the State alwaya Issued
them In its sovereign capacity, and no capital
was pledged for their rMemption. Thay were
fit I
Buraaa Couit or the Vmato Bxath.
UK
lank
irere laeued b; ft eorporatioa, lubjectcd to luiU,
find capable of luing.
Thi* is the flnt tima tUa ooiirt fau been
allied upon to flx the pretiae meaning of the
wordt of the Conatitution under eonaideration)
■ad tbey are now, b; their decUion, to lave or
17**] take from the Statea a 'little of their
remaining aoTereignty, and at the Mine time
preaenre and faithfully ^uard the conetitu-
tionftl right! of the Union. The oourt, In
•xerciiing their powere, will do ao aa eaund
Jndgei, and lavrjers, and aa aound itateamen
■nd politiciana. The plaintiffa in error aak to
Impoee reatrainte on the Statea which will de-
prive them of powera essential to their proe-
peritf, and to tne buainegs of their citizena.
In order to arrive at a true conatruction of
the CO netitut tonal provision, it ia proper to look
kt the mischiefs proposed to be remedied bf its
introduction into the inatrument. These were
the excessive isfiuea of paper, and autboHzing
them to be made a tender. The great evil waa
making the bills a tender; without this, it wat
» volunt&rjr act to accept and to refuse them,
and no injur;, but such as waa freely consented
to, could ensue. This should be the test of a
bill of credit, aa intended by the Constitution.
A State can borrow money, and give a note, or
bond, or a certi&cate, transferable for the sum
borrowed. The amount of the notes or bonds
gven for a loan made to the State, may be de-
rmined b; her and the lenders, and they may
drculate as the holders think proper. The
form ma; be precisely the same as that of any
other bank note, or bond, or evidence of debt;
and she may pledge her faith and ber property
for the payment of such engagements. If
notes or bonds (^iven by a State are not made a
tender, they will not be said to be bills of
Another part of the case is deserving of the
consideration of the court. The notes eiven to
the bank by her debtors, and by the law au-
thorizing them to be taken, are made payable
absolutely. Suppose the bank to be unconsti-
tutional, yet tlie notes given by individuals
and held by the bank must be paid. They
were given for value, by thoae who gave them,
and tbey used, fur the purpose of purchasing
lands, the notes received by them from the
bank. I'his was a valuable consideration for
the contract, and imposes an obligation to pay
the notes independently of any other matter.
Whatever is a benefit to one, or an injur; to
Knot her, is a consideration.
This court has no Jurisdiction of tbe ease
under the Z5th section of tbe Judiciary Act.
The question of the consideration given by the
bank far the notes, and the question of the
constitutionality of the law, were botb before
the Court of Appeals. That court could have
given the Judgment which waa given without
deciding tbe constitutional question. Tbe con-
atruction of the Constitution of the United
States was not necessarily involved in the judg-
280*] ment given in this 'cause. This is an
essential feature in every case brought here
under the Judiciary Act of 1TS9.
Ifr. Clay, also of counsel (or the defendanta
in error, said he was gratified by the learning
and research of the counsel (or the plaintiSk
fl*
Ha had gone Into an Inveatigatlos of e ^_,
clal, historical and statutory authorities, whieh
were highlv interestinK, but were not consid-
ered, by him, essential to the decision of tbt
case before this court.
He had, when the bank was established, con-
curred with many others, who were, with him,
citizens of the State of Kentucky, in the opin-
ion that It waa Impolitic and inexpedient; and
its Inexpediency is now generally admitted.
But among those who promoted the establiah-
ment of tbe institution, none went further tlum
some of those who now come before this oanrt
to ask to be relieved from the obligations they
entered Into with It, and for which tbey n-
celved, and used the notes of the bank, llioaa
notes have all been redeemed; they fully an-
swered the purpose of thoae who borrowed
them. They were of value to them; tbey solic-
ited them from tbe bank, and voluntarily tn-
ceived them. It is doubted if the cause of
morals would be most promoted by allowing
a release from their contracts of thoae who are
before the court, or by suataining tbe bank,
even if It Is unconstitutional.
The old Bank of Kentucky had a capital of
one million of dollars; and one half of which
was reserved by the Stats, which the SUta
afterwards paid for. Besides this property of
tbe State, lands were pledged, and taxes were
payable in the notes of the Bank of the Com-
monwealth. Loans on mortgage of real estate
were autborized, and these mortgagee became
a substitute tor real property, and could be
made liable for the di'bts of tbe bank. Tbe
bank had also extraordinary powers for tbe
collection of debts due to it. Thus, full pro-
vision waa made for the preservation of tha
solvency of the inatitution.
The dcprpciation of the paper of the bank
was gradual, and afterwards bec.imc very great.
But it is proper to state tliat the credit of tbe
paper afterwards rose, and became equal to
par; and in credit, oa good as that of tbe note*
of any other moneyed institution. So it contin-
ues. Tbe depression of the value of the noU-a
of tbe Bank of the Commonwealth, was similar
to that of all other banks which suspended
specie payments. It was not greater than tbe
notes of other banks, in similar circumstance*.
Two questions are presented in this case.
•1st. Were the notes issued by the ['aSl
State of Kentucky!
Zd. If so isEued, are they bills of credit with-
in the meaning of the Constitution of the
United Stalest
Tbe plaintiffs in error must rstablish both of
these propositions: if they do not sustain both,
they will fail in their appliciition to tlie power
of this court. The Conatitution requires both
properties to be features In the note, which
formed the consideration of the obligation upon
which the suit was brought, against tbe plain-
tiffa in error.
let. Tlie State of Kentucky did not laaue
these notes, they were issued by a corporation.
This point has been already decided in the
case of Wiater (2 Peters, 318}. The defense tt
up in that suit was that the bank and the State
of Kentucky were the same, and that tbe State
was alone the defendant in the suit. Thnt
being so, the suit oould not be maintained, and
the court hod no jurisdiction. Tbe very quea-
Fotora 11.
Ib37
Buicm 0 AL. V. Thx Bakk or cut CouuoirwuLxa or Kehtucki.
«81
tloB in the case waa tlie idenUty of tlie bank
and the State, and whether the Bmigslons of
note* were hy tlie ijtnte or by the b^iik. Tbii
la expreaely declared b; Mr. Justice Johnion,
in the opinion of the court.
It it not important, in considering thli caiM,
to inquire what portion of the aover^ign power
of the State waa given to the bank by the ap
pointiment by the State of the ollicerfl who con-
aucted it. The number of the officera was ol
no consequence. If the argument of tl>e plain'
tlffa in error ia good aa to the delegation ot
kll the power, it is good aa to part, a« if the
State ia represented bj the officer* of the hanlc
in any extent, it will be auflicient, ao far at thi
point is under consideration, to make the State
the actor in the operations of the inatitution.
The defendantt in error mutt show, and they
can do BO, that the issues of the bank were not
thote of the State. It la contended that the
whole of the operationa of the hank
of a corporation, acting under the law of It*
creation, and managing fundt provided and set
apart by distinct and positive appropriation*,
for the tecurity of its operations, in which the
State was not acting or interfering.
It it said by the plaintiffs in error that the
iaanea of the notes by a aorpomtion created by
a State is but an indirect action by the Stato
of that which the Constitution of the United
States prohibits to l>e done directly. Thia ia
not admitted. If the position assumed is true,
«1I bank* incorporated by Stales are obnoxious
to the same ceniture, for all derive their powers
182*] under State lawai and if the 'rule as-
serted can be itrctohed to include the Bank of
the Commonweal Ih, it will take in all Itanks:
tt will operate to the lame extent on all. Thi
nrgument of the counsel for the plaintiff* ii
error goes to show that all State bank* are un
Qonttitutionai.
But you cannot stop at State banks. Other
obligations for the payment of money form a
pu:t of the circulating medium. Are not billa
of excliange authorized by State laws,
and tlieir payment enforced by State laws?
They are Ibu* brought into circulation, and
tbcy form a part of the currency of the com-
munity. So the notes of a private individual
owi. their credit to the law* of the State ia
which they are issued, as those laws compel
their payment by the drawer. Thus these is-
e founded on State law*. Tlie argument,
than, ^e* too far. It should stop at tbe pi
intention of the Conatitution, and at the object
i'. proposed to accomplish.
What are the principli.a and the rule* which
should gOTeni the court in this easel
This court, in tbe Georgia case, say ttiat only
aiich a violation of the Conatitution as Is plain
and patpabte should call into action its power*
ooder the provision* of the inatrument. The
iongnage ot the Constitution is tliat which is
In oommoD use, well nnderstood by the com-
innaitf , and known to those upon whom it was
intended to operate; nor aboufd tbe aid of for-
ftlgn laws or usages be called on for it* inter-
pretation. This is not necessary, and would in-
volve tlie proper understanding of it, in dilU-
ctilty and In doubt. The Constitution Is to be
coostrued with a view to theae principles. The
proper and oertain interpretation will be adopt- .
ai, whatevar will be the eonsequBBoes. Courts I
haVB suttatoed an Interpretation of laws whtdi
had been given to them, although they have
regretted their obligation to do so. Will not
this court limit the Constitution to It* plain
meaning, and it* evident interpretation 1 It
viewing It* provUion* by these rule* defe>.-ta
are found in It, the court na* no power to rem-
edy them; but ampis power* for the purpose
are provided in it.
Tbe application of the rules which are ap-
plied to the conBtruetion of ststutes is protest-
ed against. The constitution is not to be in-
terpreted by such rules, and the framers of the
Instrument, and the people when they adopted
it, did not intend to subject it to the exercise
of tbe same power* of interpretation which
courts properly exerdse over legislative enact-
the clear and plain language of tbe Consti-
tution; and conflned to ttie action ot a State,
there is no difficulty.
In the case of Craig v. The State of MiHiourl,
the issues were by the State, by its officers
specially and expressly authorized and com-
manded to issue tbe paper. Whatever doubt*
were entertained upon the question whether
the issues were bills of credit, none existed
that ths paper was that of the State. No per-
son responsible or susbte was put forth when
tbe obligations were given.
The couniel for the plaintifTs ha* failed to
show tliat the notes of the Bank of tbe Com-
monwealth were issued by the State of Ken-
Tbe notsa were the notes of a oorporation.
The name of tbe State is not mentioned in
them. The corporation only binds itself for
their payment; tbe funds ot the corporation
were only anawerable for the redemption of
this pledge. How, then, can it I>e said they
were issued by the State, and that they were
bills of credit of tbe Statel Nothing appears
in their language, nothing in the emission of
tliem, to sanction such an assertion-
It a State own* the whole or a part of the
capital ot a bank, she may be a corporator. It
cannot be said tliat she may be a corporator
for part of the capital stock, and cannot be for
the whole. On wLat principle can this limita-
tion be establlBhed, and how shall it be ascer-
tained! A bank may be cone tit utional, and It*
operation* legal until a State shall take an in-
terest in its capital} and its unconstitutionality
will I>egin and be complete when a State shall
aaaume the full ownerstiip, by a fair purchase
of tbe stock of its whole oapital. Such a
change of character cannot t>e sanctioned; It
take place. The fact that a State
may own a part of the capital ot a bank, a*
was held by this court in the cose ot Th«
Planters' Bank of Qeorgiai that a State may
income a corporator in a bank, Is decisive of
the right of a State to make herself a sole cor-
joriitor. The decision of this court in the case
set referred to, and in the caee ot Wi*t*r, cited
from 2 Peter*, has closed all doubt ipon thi*
Are the notes ot tb* Commonirealth'i Bank
bilU of credit!
Supxnu CoDBT or tbi UMnEo SrAna.
ISST
Th« trgumeat and tha kuthorities relied upon
bf the couiuel for the plaintitTs in error have
been liitened to with profound and anxiou.
tention, for the purpose of finding a. dsflnitiun
•f a bill of credit. This has been done with-
out succew.
X84*} "Tha daflnition which is tubmltted
to the court, od the part of the defendanU in
error, which, if anj' can be given, aeeniB to ap'
proach nearer to the meaning of the CoDBtitU'
tion than an^ other which baa been offered, U
that it ia a bill reating on credit alone, with ■!<■
other basis to support it. The forms of billi
ot credit have varied; but the faith of the State
was always pledged for their redemption oi
The convention which formed the Constitu-
tion of the United States had the evils of the
paper currency, iasned during the revolui
arf conteat, Iiefore it; and the provision
introduced in reference to those arils, and to
the state of thinn which they produced. Un-
der these views tney intended, by a bill issued
on credit, one for the payment of which there
Is DO ade(iuate provision, resting on public
faith for ita redemption. But If we cannot
get a definition, we can look at what were the
firoperties of the paper currency of the Revo-
■tion, and see if they were the same as ths
notes ol the Commonwealth'* Bank of Ken-
tnclcy.
1. That currency was issued by and in the
name of the States, individually, or by Con-
2. It performed the office ot money, or of a
eirculatmg medium.
3. There existed no eompnliory power to en-
force its payment.
4. There was no adequate provisinn for its
redemption, and, in fact, it was not redeemed.
All the mischiefs of a paper currency are
erevented that can exist, if tne payment of it
1 gold or silver may be enforceo; and nothing
of this kind existed in reference to the revolu-
tionary bills of credit.
If the notes of the Commonwealth's Bank
were of this description, the defense will b*
abandoned. They were money, and they per-
formed the offices of money. They were sub-
Ueted to the power to compel their payment
Dy an appeal to the tribunals of the State; and,
as was dons in Wiiter's case, by a successful
to the courts ot the United States.
"K'
tlie seventeenth section of the act of the As-
sembly. It was expressly declared that all the
notes should be redeemable in gold and silver.
In the first section of the act the bank is de-
clared to be a corporation capable ol suing and
of being sued, and of being compelled to pay
their notes, undeniably, in gold or silver. In
•very instance of the revolutionary and anti-
revolutionary paper, there was an inadequacy
B8B*} of 'funds. These statements show, indi-
vidually, that there was no coincidence between
the notes of the bank, or the bills of credit of
the revolution; except, only, tliat both per-
formed the office of money.
These are bank notes redeemable and re-
deemed by specie, and payable on demand, and
they are not billa of credit. Such notes aa
these were are the lepresentatives and evidence
of speue; voA auoh a note k like a eheck lot
Its
the Dftyment of money. But bank setea were
not {he paper of the Revolution, and the words
of tlie Constitution do not oomprebttid them.
It ia then clearly established that thoM notea
wsre not bills of credit, and were not affected
by the oonstitutionai prohibition.
It is not true that tl>e States which ismed
the bills of credit lielore the adoption of tha
Constitution eould tie sued for those billa. 11m
eitisens of other State* eould institute •ntta,
but not their own citizens; and thus the limit'
ed liability of those State* Is not a feature Hka
that which existed in the notes of the Oomiaon-
wealth's Bank. The larger portion o( all the
bills ot a State would be held bv its own dtl-
■ens, and as to that portion no liability to mtt
The Commonwealth's Bank of Kentucky ia,
like the banks of other States, created for the
benefit of the State and ita cititeua, and hav-
ing provision made tor the full payment of Ita
obligationB, and subjected to suits, and all Ha
bills and notes have been redeemed. Atthongfa
when other banks suspended specie payments,
their notes were, temporarily, bllii of credit;
yet the liability of the bank to suits for tba
sums dn* by them, gave them a distinct char-
linty, and adopt an interpretation of
the proliibitlon of the Constitution which will
apply to a constructive bill of credit. The
large and prosperous commercial operation
our country are carried on by bills ot ezd
notes, and bank notfs, redeemable in i,
and on which suits may be brought, should* tb^
not be paid according to their tenor, llw
credit ot all such bills may be t>routrht int«
question should the court decide tliia caM
against the defendants. Keep to the plain
meaning of the terms of the Constitution, and
do not seek, by construction, to include in ita
prohibitions such paper aa that which is brought
into question in tnis case, and all will be sate,
Mr, Southard, tor the plaintiffs in error.
There are two questions, which it is not pro-
posed to discuss. 'They are, 1. Has the [*S8<
court jurisdiction of the easel The plea, in
words, denies the constitutionality of the law
ot Kentucky creating the bank. The Juriadie-
tion of the court is tlierefore apparent upon tbe
record, and the caae in 10 Peters, 368, eaiefnlly
and clearly reviews all the decisions on this
S. If the law be unconstitutional, la the eon-
tract void! It is underntood that the opinion
of the court in Craig v. The State of Miaamiri,
was nearly unanimous in affirming illegality of
such a contract.
I cannot persuade myself that it la proper
tor me to attempt to sustain by argument what
this court has so recently decided. To nippoee
that it will alter its opinion, from year to year,
or change its decisions upon such questiona when
there happens to be a change ot Its wemben,
would not be respectful to such a tribunal; bat
it would. If It were true, justify the appUeatioa
to our country of tbe truth, misera eat asnl-
tu9, ubi, lex aut vaga aut incognita est.
Nor shall I postpone my arcrument to ean-
it tbe allegations of fraud aoi wrong anlnrt
mf eUantft. BuA ohanea ai* ntUj unw>
[NT
'. Thb B&ra or thb CoHHOinrULTB <w KbhtuukT.
CM
avt, and u« not unfrequrntlj lued to kid in
'agal diBcuraions, althougb very tnapproprintr
^o lucb diacussioDB. The; cannot here be mtl
bj evidence and expUnittione; euinot be per-
■uaBiTS uid controlling upon the JudgmeDt of
thia oouit; uid are no more appliMble in thin
eftae, than in all otheri where a defendant ha*
raceired money, and. for just cauae, refuMte to
refund it. They might eaaily be retorted on
the adverse party, but I do not feel the necee-
ajty of doing it. There ia enough In the Con-
at.itution and laws to justify my clients in
claiming the judgment of the court, and to
tbem I apply my obaervationB.
I am to maintain that the law of the Btate,
entitled "An Act to eetahlieh the Bank of the
Commonwealth of Kentucky," approved 20th
November, 1820, waa a violation of the Conati-
tntion of the United States, and its bills were
billa of credit witbiu the prohibition of the
Constitution. There are two provJBians in the
Constitution which are oonneeted with, and
oontrol this subject. The one gives power to
Congreas, the other restrains the power of the
States. Art. I, sec. 8, item 6. — "Congress shall
ha«e power, etc., to coin money, regulate the
value thereof, and of foreign coins; and fix the
■tandardof weights and meaaurea;" and item 6,
adda, "to provide for the punishment of couii.
tarfeltlng the aeeoritiea aad current coin of the
United State*." Thia gives the power to the
SS7*] *Tha 10th section of same article de-
clares that no State shall enter into any treaty,
Alliance or confederation; grant letters of mar-
que and reprisal; coin money; emit bills of
oredit ; make any thing but gold and silver coin
m. tender in payment of debts; pass any bill of
ftttftiader, ex post facto law, or law impairing
^h» obligation of contracts, or grant any title
of nobility. Thia restrain* the authcHity of the
SUtea.
I in
tioD. They are aimilar, both in the grants of
power to one portion of our ^vemment, that
of the Union, and the restrictions upon the
other, that of the StAtes. And as the phrase-
ok^y and form of expression are the same, the
eonst ruction must correspond. Each power
■nd each restraint ia separate and distinct
from the otben, although they were combined
1ft the same aentenoe simply because thej were
of the aame nature and character.
Tbna, "CoaKresa may coin money;" this is
BUB power substantive aad different from the
rest. "May regulate the value thereof, and of
foreign coins,"!* another power; "may fix the
standard of weights and measures," Is still
another. Each may be exercised without the
raat. Congress may coin money without regu-
lating the value of foreign coins, or fixing the
■tandard of weights and measures. So It may
do either on* or both of the two latter, without
the former. They are, and were intended to
be separate act* of the government, one or all
oi whidi might be performed at such times and
under *ueh conditions as the discretion of those
wbo administered it should select. The nature
of the acts and the form of eipreasicm, both re-
r're this understanding and construction of
inatrnment.
Tba aame remark apfliea to tke nstrieUcm*
upon the States in the 10th section. Taking
the part of It which is directly involved in this
discussion, we see that they may "not eoia
money." That is one power, which, as inde-
pendent States, they possessed before theil
union, but which is now denied to them. They
may not "emit bills of credit." That Is another
Kwer, antecedently posseased and exercised
, them, which is now forbidden. They may
not "make anything but gold and silver coin a
tender in payment of debts." That is a third
Kwer, frequently practiced, but now probib-
d.
Theae powera, though of the same general
character, and affecting 'the same in- [*3(18
terests, were separate^ used by the States.
They might coin money, without emitting bills
of credit, or making anything but specie a legal
teuder. They might, and did emit bills of cred-
it, without coining money or creating a legal
tender. They might, if they had so chosen
have created a le^l tender without coining
money or issuing bill* of credit. The acts were
distinct in their nature, and separately per-
formed; but two, or all of them, might have
been performed at the same time, and by the
same act of legislation.
The framers of the Constitution, thus regard-
ing them, united them in one sentence; but
clearly restrained each of them, whether com-
bined or disunited, in the action of the State* i
and they framed their prohibition in the sam*
mode and form a* they granted the correlativr
powers to the general gorernment.
In construing the instrument, therefore, w«
must apply the same principles to both clauses.
We must keep the acta separate, and the rules
which we apply to the grants, we must apply
also to the restrictions. If, in the authority to
coin money and regulate the value of coins, we
find full and exclusive control on the subject
given to Congress, we must also find In the
restriction* complete reetraint from the exer-
cise on the part of the States. The propriety
of this might be enforced, and be illustrated,
by variou* example* in the Constitution itself.
To coin money, then, is one power; to emit
bills, a second; to make a tender, a third; in
their nature, and in the language of the Con-
stitution, distinct and independent of each oth-
er. And the restriction* upon the States apply
to each as a separate act, or exercise of power.
The court will perceive my abject. The
powers to emit bills of credit and to make •
tender, have been treated, in argument, as if
they were one and the same thing; and it has
been urged that the emission of bills of credit
which was forbidden, was that emiuion only
which was connected with, and received its
character from the fact that the bills were
made a tender; and that unless they were made
a tender their emission was not forbidden.
There is nothing in the words and phraseology
of the Constitution, nor in the nature of the
acts, to justify or sustain the argument. A
State may violate one or both of these re-
straints, and it* le(nslatioD will be void, because
unconstitutional. It may issue bills, and yet
not require that they shall be received in pay-
ment of debts. It may not issue bills, and yet
may require something like specie to be re-
ceived by its 'citiscns in discharge of [*S89
debts- Both would be improper, and equally so.
Buruaa Omm or thi Umr^ Btatib.
lUT
Ib pnetice, tlie two acta have not bMn tbe
tumt. I'revious lo the Revolution, all the
StKtes issued bill* of credit. In a proportion
of tne ca^M they were not made a tender. A
referenra to the books on this point has been
made, and need not be repeated. This court,
In 4 Prtxn, 43S, stated the fact with hiitorleal
accnracT. The general goverament has also
issued bills without making them a tendpr.
The treasury notes of the war of 1812 were bilU
of credit, but they were not a tender. The
(oTernment had authority to issue them; Its
necessities justified their emission. But tt did
not require that thejr should be reoeived by the
people of the United States in payment of
debts. Will It be seriously debated that they
were not, therefore, bills of ciedK, snd that, if
the States had issued tbem, tbef would have
been constitutional T
The plea iu the ease before the court, outs
In issue the constitutionality of tbe whole law.
and if It b« found to violate either of the pro-
bihitions, It must be declared void. It could
not authoriEe the issuing of bills of credit h;
the State, nor could it make either tbe bills
That the view presented Is In conformity
with the opinions of those who best understood
the Constitution in its early days, I refer to
The Federalist, 193, the number written by
Ur. Madison.
If a diflerent opinion is conveyed in his let-
ter to Mr. Ingersoll, which I do not sdmiC, it
tan only be regretted, and we must appeal
from the inattentive commentator, to the con-
stitutional lawyer, sitting In judgment when
•very facuhy is swske.
I refer also to Craig r. The State of Missouri,
4 Peters, 434, where the Chief Justice, for the
court, draws the clear distinction and the dis-
senting judges do not deny It.
I might, then, consider myself as already re-
lieved from one difficulty which has been in-
terposed in this cause. But I venture to urge
a further consideration. Tbe separation of ali
these powers of coining, issuing bills, making
legal tenders, fixing standards, and the bestow-
al of them on the Union, to the total exclusion
of the States, was indispensably necessary to
accomplish tbe great ends for which the Consti-
tution was formed. Its leading object was to
make the people one people, for many pur-
poses, and especially as to the currency. Une,
as far ta the nigh immunities and privileges of
free citizens are concerned. One, in the rights
SftO*] of holding, purchasing, *and transfer-
ring property. One, in ths privilege of chan-
e'ng domicile and residence at pleasure. One,
tne mode* and means of transacting business
and commerce. It intended to break duwn the
divisions between the States to far, if you
pleaae, and so far only, as to remove all ob-
stacles to intercourse and dealing between their
respective citizens.
To do this, one currency was necessary. The
dollar and the eagle of Georgia must be tbe
dollar and the eagle of Maine. That which
would purohaae property or pay a debt In Vir-
Saia, must purchase property or pay a debt in
asaachusstta.
Hence the power of creating and regulating
the enmney was given to the Union, and with-
drawn tram the State*. One power— the oom-
mon wDI of the whole— b to 4ecide what that
currency shall be. Congress shall coin monej
— the States shall not. Congress shall regulate
the value of coins, domestic and forei^— the
States shall not. The authority is fully and
absolutely given to the Union, without rtstrie-
tion or irmftatton. The States can do nothiiiR
which shall interfere with tbe establisbmeut oT
a uniform, common currency, and with a uni-
form standard of value — a standard which
evei7 citizen is to have, no matter where bs
resides, or with whom he deals, which the resi-
dent of each State shall employ in his tranaaa-
tions with those of every other State.
This transfer of power to the united body
was Indispensable. Before the revolution Uiere
was no common currency or standard of value,
except as the colonies were suhject to thope of
the mother country. During the confederation
there was none; none established and re;;ulnted
by competent authority. Each State, with an
unrestricted will, made one for itself. To da
this was one of the attributea which they as-
sumed when they declared themselves independ-
ent. It is, indeed, a natural. Inalienable, indis-
pensable attribute of aovereignti, in ul; na-
tions, civlliied and savage. How the States
exercised it during the confederation, in lbs
first moments of their national eiisLenw, i*
matter of interesting but not of necessary in-
quiry in this stage of the argument. But wlien
they passed from confederation to union, their
right, in this respect, necesaarily ceased. A
confederation might, an union could not exist
with the power exercised according to the will
or caprice of the different members. The con-
federacies of Greece, Holland, Switzerland, Ger-
many, and others, had existed with such exer-
cise. The Union required one currency to place
all its eitiiena on the same platform — to obvi-
ate innumerable 'causes of dissatlafac- [*291
tion and dislike — to give to the common govern-
ment the authority which was alwolutely ia-
dispensabte to enable it to accomplish the great
ana benevolent purposes for which it was cra-
ated.
Hence the power conferred upon it is exclu-
sive. To reason safely, we must keep this in
view; and as the reatricliona upon the States
are meant as the guards of that power, we
must so construe them as not to permit thcai
to encroach upon or interfere with the pow^.
The power and the guards must stand together,
and may not destroy each other.
What, tlien, is Che power to create and re|-
ulate a currency for the Union T It Is to estab-
lish by law that which all shall receive as
money) which shall paaa, at a fixed value. i»
all the transactions of society, and having tn*
national sanction, that nothing created by oth-
ers shall interfere to defeat it. It is to make
a legal tender. To e«Iablish the material and
the standard by which nil contracts shall be
governed, which do not themselves provide uth-
erwise by agreement between the parties. To
prescribe what the debtor may tie compelled to
pay in satisfaction of his debt, and wltat the
crniitor aball receive from him.
Such a currency was altogetlier proper and
indispensable under a system which, for tba
first time in the liistorj of frc: guvemments,
established it as a fundamental principle that
"tbe citizens of each SUte shall be enUtled to
all Drivileses and immunities of eitiicaa in th*
Bbimxk r al. v. Tub Bank or the (%ii)u«vn>JU.TH or Kentucks.
Mwnd BUtM." It IMS InpoMtblt to otrrj ottt
ihb.prinoipla withoiit it.
Omgnm, in 178S, fmmedUtal; Aft«r the aat-
«rauieiit commenot^, psued % law in ralation
to eertun foreign ooltUi ajid by a long dwin
of »eU, fftinilittr to tbs eourt, and ending in
1S34, from time to time. regulated tli«m at oon-
vraienec, diicretion, and the condition of our
tma coinage required, la .I7K they eetab-
liabed a mint, and eautiousl; preacribed the
coiu which should be made, the itandard by
which they ware governed, and tlie ralue at
which the citlKeni of the Union oliould reoelve
them.
Thia law created a currency for the Unluo.
It haa been allied oonititutionol ourrenc^. It
ia conatitutional Iwcsuae Uie law creutios it
waa anthoriied by the Conntitiitlon; but it ii
not ao in tbat sense alone. The Gonstittition
authoriKd Congreaa to create a legal c>in*Qncy,
•nd thia ia ita proper deaignatioD — -kgai cuiren-
«j, or money current by law. Congress night
3*S*] have oreated a leg&l currency 'not of
;gOld and ailTer. They issued treaiury notes
and chartered a bank. They had the power to
Bake the treasury and bank notes a legaJ eur-
rancy, a lawful tender, because the power ia
without reatriction in the Constitution. But It
would luiTe been most injudicious and inexpe-
dient; an exercise of discretion unjustifiaDle
tben, and which will not and ought not to be
•xbibited hereafter. Power and duty are not
aJwajs the same. Follay and power ore often
opposed.
The court will remark that I do not labor to
doflne, but 1 desire to distinguish between cur-
rwK7 aad money, or circulating mediuin. Le-
«al cnrreney is what the goremment by right-
fnl authority declares shall pass at a fixed val-
na, in the transactions of society, as gold and
■liver here; money or circulating medium u
that which paases by oonseat and agreement, or
Otherwise, in contract! and business transac-
tions. It may Im gold and silver, or bills of
vadit, or even promieaory notes, which are re-
eeived ma discharges of debts. The former in
ail eountriea is small in amount, in ours not
■Mre than from seventy-flve to eighty millions;
the latter, if all kinds are embraced, reach prob-
obly to nearly one thousand millions. The
former la the atandard and regulator of the lat-
Iw. The former ia entirely under the disposal
of tlM general government, and it was the
ovowed parpoae of the Constitution to prevent
the States from interfering with it. The latter
Is not prohibited to tliem. But it waa that
they might not touch the former, or do that
which should destroy it, that the prohibition ol
Ulis of credit was inserted. They were money
eurrenoy, if tluy liad the oradit and faith of
the Stftte stamped upon them, and their circu-
lation would int«rf«rs, injuriously, with the
eommoD inteioourao and obligations of the va-
fiona porta of the Union with each other.
Aawog the eircutating medium are to he
found the eouunon bonk bills issued by cor-
pentiou •• State banks, and promissory notes
MOoed by individuals, aa by Morris and Nichol-
ooBf of former timea, and the Moshviile firm,
aad others of more recent date. They ore not
ImI ourrsaey. No man is oompeUed to re-
mm them for debt* itt», or on oontraots. No
■ bo*.
[No law requires them to pass cnrrenti H b
matter of convention.
They are bills of credit of individuals or eor-
porations, and are received on the faith and
credit of those who issue, and al the hazard of
those who receive them. They form, by as-
sent of parties, a substitute for eurrent money,
but have no legal validity oa such. *In- [*a9t
dividuals and corpomtions may issue them; uid
those with whom they deol may reoeive them
without violation of the Constitution and laws,
unless they nre forbidden to do eo. But it is
precisely such whicb the Union intended to pre-
vent the separate State from umitting, on their
own fntth and credit. And for most ol^rious
reasons, as will presently be further seen.
It is not my purpose to contest the ounatitu-
tionaiity of tbe billf issued by individuals, or
by banking Inrorps rations yrho have authority
by their cbarteis to issue tbeni. I do not eon-
j enr in the piinted argument which hae lieeo
hatided to the court, so far aa it soeuis to de-
clare that iill the.'e State banks arc unconstitu-
tional; nor is it nccpssary for my arguuient, or
my cause, that I should agree to that pusitioa.
The StAtce liu.vu po\vcr to rreute corporations;
to invest them with the right to issue promis-
BOrj' notes on such terms, and with such secu-
I rity as ahsU seem proper; to place them in this
I respect on the footing of individuals. Sut Iho
States have not the poi/tir to make the notes is-
sued by tliem curieut money, or compel their
citizens to receive them. This would be an as-
sumption of the authority which has been sol-
emnly vested in the Union alone.
The duty of Congrese is to create and to pro-
teat tlie common currency of the Union. I'lia
Kwer to create embraces the power to regu-
« and the means of regulation. The means
and the character of this regulation need not be
explained at this stage of the argument. But
it will be found that the admission of the right
of the States to create liaoks, will aSord an
argument in denial of the right of the States
themselves to issue paper on their own credit.
Why should these notes be received and used
as a part of the circulating medium I Solely
from the unavoidable scarcity of current mon-
ey! Tbe country requires more circulation than
specie con possibly all'ord. They are necessary
for the business of society. The same apology
existed for treasury notes, and notes of a bank
of the United SUtes. Bills of credit, at all
times, have this justilication, no other; and
they may be received, but must not be lemliwd
as currency by the general government. No
public agent of the Union, no representative
ought to recognize them as currency by any aet
of legislation.
I urge, then, that Congress has tha entire
control of the currency, and with it, oi a neg-
essary consequence, the power to regulate tbe
eirculating medium; and that until there Is an
absolute restriction by competent nuthoritf, or-
dinary bank bills are a tolerated, legal and eon
stitutional 'part ot the circulating me- [*St4
dium, but no part of the leml curreuey.
This view of the Constitution can by no pos-
sibility create difSculty, or treepasa on tha
righta of the States. The rule as to them ts
that they eannot issue bills which shall rest on
their own funds and credit, and dreulobs ss
monsy by govemineatal authority. Thorn Is
BuTBms Ooun or the Uxited Statis.
Hj be wrtiiriOEd without it. 'llie peat cs
whicli Wt? alwajB cri^uted, and id all c
triaa, the netvuity lai tbia «xertina of power,
have been removed from tlieir aclian. Thoae
eaiUM bad connection vith, and sprung from
tbe intercouru, peaceful or hoatile, with other
■Mtiona; almott univerulljr from war. The
Bank of England waa created to enable that
luttion to carrj on a war with ita great rival.
Moaiachuaetta, Connecticut, New York, and
New Jersey, itaucd their Hrtt biMi to obtain aid
In the struggle in Canada. South Carolina
raisG'l by tbiit procem tlie means to carry on
her war ugninst the Indiana, and both the State
aud confFdemte bill! were ieaued to euatain the
war uf iiidr^pendunce. But al) foreign inter-
MurBC ia taken away from the State*; they
wage no foreign or Indian wan; they iKed not
therefore tltr power, in case of such difficulties,
to resort to thia expedient.
While in war it is unneceuary, fn peaoe it
would produce diiastrous conaequenees. If
they were to iMua such bills, they would draw
a direct diutinction between their own dtizeus
uid those of other States; and if they were re-
teeted or discredited by other States, or by the
Jnion, distrust aad dissatisfaction would en-
sue, and the Union Itaelf l>e wcalcened and an-
dangered.
Bank bills, or promises to pay, by incorpora-
tions or individuals, depend for their drcula-
tion on the faith reposed in, or, in other words,
on the credit of those who Usue them. And it
matters not whether the promise to pay is on
demand, or at a future day, or at the discretion
or convenience of the payee. The time of pay-
ment hat nothing to do with their character as
bills of credit. A bill to pay when presented,
Is no more a bill of credit than if it flxea a day
when it la to be paid, as a year or six month*
hence. It still rests on tbe credit of the maker,
This is so, even If a fund is mentioned by which
it may be secured or protected. In private
cases funds are seldom speciHed. In public.
sally in the bills of credit
States, before and during the Revolution. But
Its*] whether with or without a 'fund, the
credit 1* and must be given to the individual
or party who make* the promise, and who, by
that promise, binds himself to satisfy tlte hold-
er for tbe amount. In this respect there la no
dilfBrenee between ths makers, whether pri-
vate citiieDS, corporations, or States. We look
to the person who ia bound to see the bill paid;
and it is bis bill of credit. It is not the agent
who may sign; it is not the substitute, but the
principal. And if he be found, the bill Ia the
credit; tbe trust I* hi*, and upon him.
Banks generally Issue bills payable on de-
mand; they often issue notes, post notes, pay-
able at a future day, sometime* bearing inter-
eat, and sometimes not. Yet they are stilt their
notes, their bill* of credit; they are dreulaling
medium. So the government issued treasury
notes, payable at a future day, and bearing In-
Urest. They were the bill* of nedit of the
■Dremment, and their circulation, *• a medium,
aafiHided im tlw credit of the government. So,
aiau, ti a Cjiute liy its ngcnti issno bills, for
wlueh tka ajpwt h Mt IwUvIdtMllj nuMMtbU
but which must be paid oot of fmtda fmUU
by the States, it is not the bill of tbe agtat,
but of the State. The form 1* nothing; i^ ta
to pay, and out of whose funds 1* tha payueot
to be made, 1* the decisive matter.
Now, if a State, by ita agent* or otherwlaa,
iasue billa which paas as money, they paaa, not
on the credit of the agent, but of the State it-
self. If that credit ia disgraced and rejected. It
is not the agent who feels and suffera, but the
State. If the bill* are refused by other SUt«,
or impeded by the general government, tbe
State is affected- Her separate sovereignty is
impeached. Imputation is east by bei equals,
and by tbe Union, on her credit, and aolveuey.
Hence, will instantly arise a train of evils to a
Union like ours, which will strike the mind
without the aid of description or argument.
The Constitution deainied to prevent such re-
sults. This court will not counteract that de-
sign. But this is not all. These bills are the
money of the citizens of the State. If other
citizens of the Union reject it, private oonflkt
immediately arises. And this strange exhibi-
tion is made in a Union among one people —
that a part have one euraency, another part an-
other. And the citizens of the State which
emits have two governments, oiw of wbidi they
may pay in one medium, and the other they
must aatlafy in a different medium; the eitlea
of other Stetea are eompelled to avoid all deal-
ing with them, or receive what ia not current
where they reside. This train of reflection de-
serve* eunsideratioB, when the meaning of the
Constitution ia sou^t *ThMe who ['t*!
made it were not blind to Bucb effect*. 'J'he
great principle is that the Union haa the power
over the common currency. The States cannot
interfere, and, upon their faith, credit, sover-
cignty, establiali anything which i* to have thai
character. They may authorize their citiieua
to iasue bills, but they may not give those bills
any portion of tbeir power or authority, or
credit. Tbe moment tbey do this they become
invested with a new ciiaracter; they become
pubiio money; notional bo far aa a State ia na-
tional ; separate so far aa a State haa aeparata
and independent existence. They create a cur-
rency of their own, different from that which ia
currency elsewhere.
It haa been supposed that this grant of power
to the general government arose from the evila
which tbe Stat^ bad inflicted on tbemeelvea by
paper money, and was intended to guard them
from the repetition of these evila. These wera
great and appalling, their history is one of in-
poeition and oppreesion, and they doubtleaa led
the States te a willingness to surrender the
power; but it was not ko much to create a
guardianship over the States, and prevent Stata
and local, as confederate ditScultiea, that the
provision was inserted in the Constitution.
The remedy for pre-existing and for prevea*
tion of future evils was the power conferred on
Congress. And that power waa sufficient for
iU object, if it had been wisely exercised. Bat
this is not the place te point out and secure Ite
proper management. Diffloultie* and inoon*
veniencea in the formation and administration
of lawa are not for this tril^uoal.
The poeition* resulting from Um preeoding
I8ST
'. Tub Babk op tue Commowwbaltb b
t glutei mnj create corpora tloiw which, Hke 1
tnrlivfdiiiil (litiiienB, niKy Iisue hilU of credit. I
3. Thrse mny be reectved or rejected, at will,
bj the dttzen.
4. Congrpst may determine how far the;
■b»II be treated a* currency — as n tender.
5. In doing tbii they muit taa,ko the currency
no i form.
If these princtples hsTe been explained, we
may Inouire further into the giiarda whfch ore
provided to prevent their rioUtion.
The; are two; the States, In virtue of their
funds, credit nnd sovereignty, are not to emit
bills, nor make a tender of anything bnt gold
and siWer.
Z«T*] 'Both these had been done by the
colonies and by the States, in Innumerable in-
stances; some producing incalculable evils,
others rather beneficial than injurious. In New
Jersey, for example, her billa had been so regu-
lated and secured, although they amounted to
nearly, If not quite, two millions of dnllirs, that
their credit and payment were protected; and
the evils felt by her pi'Ople were rather from
the paper money of the confederacy than from
her own; and this may in part account for her
vote on some questions relating to this pro-
vision of the Constitution. 4 Elliot, Debates,
137.
The prohibition Is In the most absolute terms.
"No State shall emit bills of credit." It did
■tot so stand in the draft of the Constitution
reported by the committee. There, It was con-
ditional. "No State, without the consent of
the Legislature of the United Statea, shall emit
bills of credit." 4 Elliot, Debates, 123. The
eondition waa expunged. The prohibition is
peremptory. It is so also aa to colnins money
and making a tender, the other two acts which
Bight interfere with the general power* grant-
ed to Congress. And it is apparent that one of
them is no more taken away than the othera.
The States have the same right to coin monry
«a to emit bills.
These bills and paper money were one and
tbe same thing, Tm paper money of the col-
oniea and of the new States were called bills of
eredit simply because issued by the authority
of tbe States, created by them, and which they
were bound to redeem.
This requires no argument or reference to au-
thority, because it is admitted fully by the ad-
verse counsel, and ia not denied. The paper
meney were the bills of credit, and thtre was
Now, if all bills of eredit -" ' "
by those who maintain the validity of the
State iuuea.
Whatever the Statea were !n the habit of is-
•ulng is then prohibited. MTbat were they I
1 ikal) not refer to the multitude of acta which
have been dted, and to which the court hare
referenees. They were all of one character,
having one object and one substance. They
were signed by State offlcera, eommitslonera,
eammittees. by persons who were agent* of
tbe State and acted for the BUte; not for
themselves.
The court cannnt but be familiar with Story's
f^ommentary on the Constitution, which give*
the moat clear, condensed, and accurate view of
thaaa blUa, tbsb tifttur* and affaeta, which is
within the cumpaas *i>( my reading. I [*lffl
use it as one of my guides in this argnmcnL t
Story's Com, 222.
They ivpre promises by tbe agent that the
State would pay the amount mentioned, OB
demand or at a fixed day.
They had a fund provided for their redemp-
tion, which those tvho autlioriied then) con-
sidered Kufndent to sccui-e their paynient; gtn-
erally taxes, ur some portion of the revenue be-
longing to the State. The tumcienry of thia
fund iTAS of no iiniiortnnci!, ns to their clianic-
tcr AS hllh of credit. It almoit always failed,
cvcept in rase of the State, to which 1 linvit be-
fori' referred; but In all cases the resort was tu
thL' funds and the credit of the State.
They iverc permitted to ]iasn 3.1 the dtlwns
should estimate them ; or they were forced Into
circulation by legislative comniiind, by tender
They were drculafed as money, and Iti m-ery
instance which can he Found, thuy jirn mined
payment iu 2°^i and silver, in spLCie, or in
current money, which meant gnid mid silver.
In all cases they were bills oF credit uiid paper
money; and tbn States cannot now emit any-
thing in their resemblance, or having their ob-
ject. In all thfir forms they were within the
mischief to he remedied. See Croig v. The
State of MiEBourl.
The adverse counsel, to enable the bills of
the Commonwealth's Dank to eseape the dcnun-
dalion, have given us Four tests, by whiL'h they
are to be tried; and without which, they are
not to be taken as bills of credit, within the
meaning of the Constitution.
These are, 1. That they were issued by and
In the name of the State. A more true descrip-
tion would be that they were issued by offieera
or agents of the State, for and on behalf of the
State. The form given In 4 Peters, 4S3, waa
general. It was tM oertiflcate of the officer —
Ills promise that the State would pay. I admit
that the person signing them muat he an officer
or agent of the Slate, and promise for the
State; he must represent the State, but the
form in which be does it is of no importance.
"Due at the treasury of the State 20 dollara,"
and signed by the person authorized to sign It;
is as much a hill on the credit of tbe State, aa
if tbe most precise form was used. And it mat-
ters not what the treasury or place where it la
to be paid is — a bank or the treasurer's house.
It is the place when funds of the State are
kept, and that ia the treasury, call It by what
name you will. It does not cease to be the
treasury because you call it a bank. And If
the promise la made by the agent that he will
pay. It doe* not thereby cease to be binding oa
the State, If the 'money out of which [*t*il
be waa to pay ts the money of the State and not
hia own. Forms cannot conceal the aubatanoe
of the transaction, nor divert Ha obtlgatioB
from tbe real debtor.
2, That they were to supply the place of'S
drculatiug medium. There la, in this case, no
objeet in debating this tent. It h emphatically
admitted tbat the notes in question were d»-
signed to circulate as money, and supply Ita
3. There was no compulsory proceoa to en-
force pnvment. Is It not perfectly 1
t^t there wi In all tbise a
SVTUaat CotniT or mR U:TrrcD Statis.
Mi u npon all other «aDtr*<!ta by tho State?
BMidc*, wheu the provision was inaerted in thr>
Consttttttion. the StfitpH could b<> »lip'!. This
WH the early doctrine, and tbc Coniitilution
wu amended to take nway the suability of
Statee. But to relieve this preient raee from
the appHeatlon of this teat, it m-u&t be shown
that (be ofHeers ur agents wlin have been inter-
posed between the liolder of the notes and the
State ttaelf can be sued, and eoiapelled to pay,
whether the State will it or not. A suit against
then la mockery, unless the judgment enu be
Hift-Toed againat thoae irlio nivn thi> funds.
When tbc Taw is examinpd, the valuo of thi^i ef-
fort to evade the ConBlittition will be apparent.
i. That for the hills of credit brfore the Con-
•tltntion. nr adequate provision wai made for
their redcmpiion. Thia wan not believed to be
tha eaae at the time of any of the omisaions. A
fund wna almost always proviiled. Whether
■ufflclcnt or not was matter of opinion; and
they only were to judge of its snfficienoy who
anthorieed them, it waa to arise from taxes,
•xoisea, imposta, apecifled property, from some
source of rpvenue to the State. That thry were
found to fail, does not alter the fact. It will
be ebanged if the fund should unexpectedly
Jail. This would convert them into hills nf
Ci-edit, according aa the value of the fund was
enhanced or depreciated. The eounael will And
it difficult to sustain thia poaltion b^ any refer-
ence to history; and if the insufliciencj of the
fond is to be decided by the depreciation of the
paper testing upon it (which la the only teat
which we or thia court can apply), then the de-
fendant in error can have little hope. The
notes of the Commonwealth's Bank depreciated
fifty per cent, notwithstanding the fund pro-
vfaled for them.
The reeult of these tests is that the qualities
too*] of the paper in question *caDiiot be con-
fined to the point* urged against us. Their
true dascription Is paper money — bills resting
on the funds, faith, and credit of the State—
bsued by agents of the State, promising that
they shall be paid, whether out of a apecific
fund or not; having the aame meana to enforce
payment as other contracta of the State, and
(kaisned to paas aa money, to relieve the wanta
of toe government or ita citizens.
It win at once be perceived that neither thia
deeerlptlon nor any argument now urged can
interfere with, or be made to deny the right of
a State to borrow money and give ita acknowl-
•dgnient of the debt. If it be honestly and
bnly a loan, and the acknowledgment intend-
ed to secure Its payment, no objection exists.
The bills of credit of the colonies were not
leana, nor oertificates of loans. They were the
paper money — the circulating medium of the
Umee. It is tha baaineas ot a court to look at
the real object; and mere mattera of form, or
the name by which any paper or inatrument is
called, will not, with them, decide its charao-
t«r. If a State, not in debt, not wanting mon-
ey to diacharge its obligations, issue* note* ad-
mitting tiMt it owes, and does this to relieve ita
dthan* and create money for circulation, shall
tt* finw* ■ueaadl BhaU the Constitution of
tic
not operate upon the acts themselves, and be
enforced scconllng to its obvioua Import and
ineaningt Thia is a matter not to be rcaaoned
before thia court.
I am now prepared to examine the law of
Kentuciiy creating the Bank of the Common-
wealth, and to apply its provisions to the Con-
stitution. It will be found to authoriie the
emission of bills which have every characteris-
tic of the billa of credit of former days. It*
preamble developea ita object and the mode of
accomplishing it. It Is In these words: "Where-
as, It IS deemed expedient and beneficial to the
State and the eitiii-ns thereof to establish a
bank on the funds of the State, for the purpoaa
of discounting paper, and making loans for
longer periods than has been customary, and
for the relief of the distresses of the eommimi-
ty; therefore, be It enacted,' etc.
The object was not to borrow money for the
State. This cover, which wna unsueceasfuIlT
attempted in Craig v. The State of MisMntn,
cannot be resorted to here. The government
of Kentucky Iwd no debt; no necessity to bor-
row money to supply her wanta.
The object waa the relief of the distivssea of
the community; the mode of relief waa to make
loans to them of money with which to
*pay debts and make purchases. Her [*301
motive waa similar to that which produced ail
the old paper money. She had not aa good an
apology as Masaachusetts and the other colo-
nies had, at the commencement of the eigh-
teenth century. They issued their billa to en-
able them to raise the foroes with which to
fight the battles of the country; or to pay tbem
on their return fiom their ^lant, but often
unsuccessful enterprises. Their motive waa to
Ely a debt of the government; to meet its ob-
gationa. Here it was to provide money tot
the people of the State.
The mods of providing relief was by a banki
to issue money in the precise form of ell other
bank paper, and to answer the purpoeea of all
other bonk paper. And it was no new mode of is-
suing bills of credit. Tliere is one example,
and that not the leaat objectionable among
the multitude, of its use before this. South
Carolina. 1 think. In the war with the Tusca-
204. The two are alike in all essential partie-
nlars; and yet no man baa ever supposed that
the notes of the South Carolina Bank were not
the kind of bills of credit which ar« admitted
here, in arj^ment, to be paper money, and to
be unconstitutional.
The provisions of the law and it* supplement
ahow tnat the plan was to equaliie thia money,
aa money, among the people. The eleventh
section djvides the capital among the countfw
in proportion to their taxe*. The twenty-first
section, and the supplement (p. 186), ereates a
branch of the hank in each judicial or eongra-
gational district. The eighteenth section pr*-
Borib«s the amount which should be loaned,
and that it shall not be for longer than oa*
year, nor be loaned for anv purpoaa but to pay
debt* and purcha** stock and produce. la
plain, words, It was money; money issuait wd
loaned by the baal^ to b* oaad •■ Bgoey.
UK
l*iitwm m AL. 1, Tbm Bark op tub OoiiMoitnALTB or Kxhtdor.
It la not in7 puTpoM to denj the duty of the
goTsmmeiit of the 8t*te to uw all upproprUte
»ad eoDstitutioanl means to relieve tae people,
when Tinder «uch distreM a« vas then felt, but
to d^j the right to lue the meana then kdopt-
•d. Tim Uaak of Kentucky had been creatn]
nmnf je»,n before, aiid the State vm one half
owaer of the etock. During the vr»r of 1812,
It, liko othen, luffered. It stopped specie pay-
unit by order of the government, mod wus in
tkat eondition when, ia 1S17, the State char-
tered mora than forty new hanka, requiring
tham to make their capital of ipecie, or oi uotea
ot the Kentucky Bank. Thej failed, as mijiiht
S«l*] have been expected, and *in lalS tlicir
eharters were taken away. The presBure and
diatr«u of the oommuaity ivere almost un»up-
portable. The rirtue and talents of her best
eHiiena were put In TcquisiUon; and during the
•itting of the legislature in Frankfort, they
BBSt in the eaplto], in the hall of legislation, to
darita the proper means for relief. If I have
the history correctly, one of my learned adver-
•Kriea (Mr. Cloy) waa there; and, aa he has
dona on lo many other occasions, ^ave to the
uuBber* of the Legislature, and hia other fel-
low-dtiiena, the counsels of true wisdom. But
thay were not to create such a bank as that now
nndn' eonaideration ; the constitutionality of
which was. at that day, denied by a targe pro-
portion of the ablest citizens of the State. The
Lagi^tura adapted other, and, as I Insist, un-
eonatitutional advice, and created money for
tka relief of the people; the money wlioae le-
gality we oontMt.
The inquiries at onoe meet ui, whose money
was iti By whom waa it iasuedl On whose
«radlt did it rest I By whom was the fund for
ita redemption owned T An answer to thpse
qiMations must aettla our ooutroversy. If the
fund belonged to the State; If the credit was
thftt of the State; if those who issued it were
the mora agents of the State, without personal
Ittaieat or responsibility; then it was the money
of tka State; the bills were bills of credit, emit-
Ud by the State, and fall within the constitu-
tkmai denunciation. It Is susceptible of dem-
(Riatration that the State and not the corpora-
tkn, was everything. The corporation was not
to provide relief of itself. It was but the in-
■trament uaed by the State to efTect Its object,
bv Ita own meana and resources. The corpora-
tMli w*« tlie mere form of her action; and if
tUa form shall be found sufficient to cover and
lagkliM the act, the Constitution ia, on tbjs
point, not worth the parchment on which It ia
written. It doea not require even ordinary in-
Cenuity to enable every State to trample upon
and defy it, wheoevar Interest or caprice may
1. Than h to the stockbolden. See. I.
"lliat a bank shall be, and the same is hereby
eatablishcd, in the name and on behalf of the
CoDunanwMith of Kentucky, etc." Sec. 3.
"The whole capital of said bank shall be bx-
eluaiTBly tha property of the Commonwealth
•f Kentucky, and no individual or corporation
ibaU be permitted to own, or pay for any part
ef the eapital of said bank." Sec 5. The cap.
4U1 atock of ikld bank shall be two millions of
4ollara (increased by supplement £2 December,
IMO, to tkica milliona of dollars), to be raised
•nd Mid !■ th« foUowiog naunar, to wit;'
"All moDaya 'hereafter paid into the I'SOS
treasury for the purchase of the vacant landa
of the Commonwealth: all moneys hereafter
paid into the treasury for the purchaae of land
warrants; all moneys which may hereafter be
raised for the sale of the vacant lands weat of
the Tennessee River, and so much of the oap-
ital stock owned by the State in the Bank of
Kentucky as may belong to the State after tba
affairs of said bank shall be settled up, with
the proSts thereof, not heretofore pie deed or
approfiriated by law, shall be exclusively ap-
propriated to the making up the capital stock
of said bank;" the treasurer, as he should re-
ceive money from these sources, to pay it orar
to the cashier, etc Sec. 24. All the interest
arising from the loans and discounts, whidi
may be made by the said bank, after the pay-
ment of the necessary expenses, shall consti-
tute and be considered aa part of the annual
revenue of the State, and subject to the dia-
position of the Legislature.
See. 28, The treasurer was to furnish seven
thousand dollars to procure plates, etc, to put
the bank into opi^ration.
Sec. 36. "That the notes of the present
Bank of Kentucky shall be receivable in pay-
ment of all debts due the bank hereby estab-
lished, and the revenue of this Commonwealth,
unappropriated at the close of the present aes-
sion of the General .Issembly; also, the revenue
hereafter collected, which may remain in tba
treasury unappropriated annually, shall con-
stitute a part of the capital stock of said insti-
tution, and shall be paid over to the cashier of
the bank, by the treasurer; subject to such ap-
propriations aa may be made from time to time
Preliminary to the particular examination of
the character of the paper issued by the bank
under this charter, and to a further discussion
of the caae, it is important to call the attention
of the court to the state of the questions in
this case, as they are presented by the plead-
ings. In no propriety can the cause he decided
but upon them, and the court will therefore
look to them with their accustomed care and
f the defendants in the eonrta of
the Bank of Kentucky shall be paid oTer to
the Bauk of the Commonwealth, they aver that
nothing was ever paid. They also aver that
the whole of the proflta of the bank belongad
to the State, and were received by the Stat*.
The plaintiffs demurred to 'these pleaa, [*S04
and thus they admit every and all the facta aet
forth in them. The ease is therefore on the
pleadings: a bank waa established for the aole
and exclusive benefit of the State of Kentucky
for the exclusive profit of the State, and no cap-
ital waa furnished by the State, none was pMd
into the hank. The State appointed the offlcen
of the bank, and they issued notes in the form
of bank notes. These notes were circulated aa
money, and were the consideration for the note
on which thia suit waa brought. The law di-
rected that certain funds uonld bo bandad
tl7
SvPBEIU CoUBT or TRB UlttTID BrAtia.
IMT
OTer U* the corporation, which irere to form
ths ea^tal, but tbe Ian was not complieil
with. Tbe credit of the Slate pledged b; the
provUioDS of the charter, directing the ap-
pTopriation of these funds, was, therefore, the
only pledge for the redemptioa of the billi of
the bank.
If the case would stand in a more favorable
atpect, had the proceeds of tbe public lands,
and tbe fuada of the State In the Bank of Ken-
tockj been actually banded over to the prea-
Ident and directon of the Pank of the Com-
monwealth, and thus have become a capital,
answerable for the debts of the institution, this
is not the case before the court. The pleaa of
the defendants allege the contra.ry, And the de-
murreT admits the truth of the allegations.
even had those funds been so appropriated, if
any auch existed, and this court does nnt know
tbej did exist, still these appropriations would
have been revocable by tbe Legislature of the ,
State.
Where is the controlling power over the
State to prevent, by subsequent tegislatinn, the
withdrawal of all the fund at any subBfi|iipnt
period and for any purpose the Lfjiialnt uri
should direetr Could the State of Kentiick]
have been called upon for impairing the olili
gation of these contracts I Before what tribu
nal couM such a claim have been prcferri'M
Thus, tbe faith of the State was alone tlit
basis of the bills of the bank, and the plo.l'K
for their redemption. A faith it is not in
tended to impeach or to question. The argu
ment has no such purpose or desifpi.
To proceed with tbe eeneral argument.
By the provisiona of the law, it is clear:
1st. That the bank was estabUshrd in the
name and on behalf of the State. Not in the
nanie nor on behalf of the corporation, or xn;
of the men belonging to or composing it. The
State was the OBly atockbolder— the only one
Interested in It.
2d. That all the stock, funds, profits of the
S0&*] bank, belonged to the 'State; were, in
fact, the property, the revenue, the treasure,
and the treasury of tbe State.
3d. That the State had absolute control
ovar this property; could appropriate every dol-
lar of it at pleasure; and, by the 2etb section,
it had the power, from time to time, to alter
and change the very constitution of tbe bank
whidi nominally held It.
4th. No individual, not even the president
and directors, owned one cent of the capital
stock, or could receive. In any form, tbe
slightest profit from it; or regulate and dispose
of it otherwise than according to the pleasure
of the LegislaturtL
It is impossible to conceive a more perfect
property. The corporation owned nothing. It
used nothing, except as the agent and repre-
sentative of the State.
Under these circumstances, can It be pre-
tended that notes issued upon this property,
and secured by It, were the notes of the bank,
and not of the State T They circulated on the
faith and credit of the fund, or of the owner
of the fund. To call them the notes of the
•orporation, is a gross perversion of the plain-
est truth. They were the noUs of the State
and actually issued out of the treasury of the
State. Tbe covering la too thin for Judicial eyes.
Ill
In the whole history of bills of credit, then
ia not one esse more bald, so far as funds and
credit are concerned.
But it has been argned that the funds were
vested in the corporation, and that they wen
ample to secure the payment of the notes,
which were payable in gold and silver, and tbe
corporation might be sued. How were they
vested in the corporation T Tbe president and
directors were, by the Zd section, made a cor-
poration, "able and capable, in law, to have,
purchase, receive, possess, enjoy and retain, to
themselves and their successors, lands, rents,
tenements. hertditamentB, goods and chattel^
of what kind, nature, or quality soever, and the
same to sell, gi'ant, alien, demise and dispose
of." But when or how was their capacity in
this respect satisfied or ueedT Were the Isndi
from which the capital was to arise ever trans-
ferred to themT Was the SUte's capital in the
bank of Kentucky! Never. The corporation
never owned either. It was not intended that
they should. The capital was to be created
out of their profits, after the wants of the State
were supplied. They never owned any of the
property. Even the profits which niffht arise
undiT the loans and the mortgages by whfch
they were to be secured, was, aft«r pay-
ment of the necessary expenses, to be "Sub-
ject to the disposition of the Legislstutv."
'(See Z'Mi sec.) And their whole ca- [*SOt
pacity of acquiring and holding property waa
to be "subject, nevertheless, to the rules, i«r-
ulfttions, restrictions and provisions in this
t." In other words, subject to the absolute
itrol of the Legislature; subject to the
wants of the govemmentj subject to the annual
appropriations by law. None of the property
was ever vested in the corporation as ownen,
but only as agents or trustees of the State;
trustees, too, compelled to act at all times, not
by the covenants In the trust, but by the com-
mand of the cestui que trust.
As to tbe value and sufEciency of the fnad,
but tittle need be said. It Is, at best, proved
only by allegations of counsel, founded upon
no evidence before the court. The lands were
most uncertain in their proceeds; they might
or might not produce funds to pay the notes,
or form a capital. And they might, at any
moment have been transferred by the State, or
given up, as is the fashion of the day, elae-
■ - '- actual settlere. The eapiUl of ?600,-
previously i
my recoiled
encumbered by law, according to
ly recollection, to two thirds of its nmount,
and was liable to further burdens. The bank
had stopped payment, and Its very incompe-
tency occasioned the charter of this bank.
Bnt If the fund was so ample, wby did tbe
notes depreciate T They fell, as the court baa
been informed, fifty per cent.; and were at that
Eoint when they were loaned to tbe plaintiffs
1 error.
Tbe truth on this point Is that the bank never
had any funds. It went into operation before
any part of the capital was or could be paid in,
and issued its notes and took its mortgaKes and
other securities from the borrowers. It was
created on the 29th November, 1820, and went
into operation 1st May, 1821; and never, during
its existence, reeeived from any quarter an
Peton It.
■ ir AL. T. Tas BAMt <» mu OoiiiioitwkUjtB cr KMntrsKS.
kandndth p«rt
wu uthoilud
of Um thne mlUkmi vUch It
to limit. Thm poaltlon of the
eidinn, •■ hat baen iftld, detennineB thU
L The plea denies thut the capital waa
nui or tha fund anlHcient, and the deminrer
■dnlta tba truth of the anegation; and It
awke* in thia, no admiitUm eontrarj to the
truth. The bank never had an7 capital except
ita own note*; Ua own pTomfaea to otj: and
tfceae, it U quite too abeurd to regard as con-
atituting «apital, or giving abltitj to paj gold
aad silver.
Again. The promise was to pay gold and
silver, and the promise might be, and oas b«en
aafopced. In this reapeet, these notes are onlj
equal to all former bills of credit. They all,
>*7*1 withont exception, promised *in sub-
itance to pay gold and silver; they bore this
UBdertaking on their face. But did they do
ItT Was It not the promise and the failure to
Kfom that covered them with the mantle of
od and imposition, and created the bitter
denunciation of the people, and the constitu-
tional prohibition of their government! And
if this bank paid gold and silver, how hap-
poied it that its notes depreciated so enormous-
ly T It run the career of all ita predeeeasora.
The reference to the payment enforced by
this court is to the case of The Com. Bank
V. WiaUr, in 2 Pet. 324. That waa the case
of a depoait, not of the loan of its notea. It
waa the pavment of money received; not of
gold and allver for Its promises, ita billa of
credit. And If, after judgment and execution,
it had declined to pay, out of what would tha
noney have been madet Of the property of
the president and directoraT This could not
have been touched. Of the capital of the bankt
It had no existence. Of the profltiT Theae
might have been appropriated by the State,
and removed out of toe way even of the proc-
•aa of thia court. Could the creditor talie the
lands, the stock of the Kentucky Bank, tha
noney in depositi He would have come, at
last, to depend, as In all other tike cases, on
the honor and faith and credit of the good
Cunmonwealth of Kentucky. He misbt have
fonad himself In possession of a right with-
«at ft remedy. In this respect, the promisea
of thh agent of the Commonwealth stand pre-
eisely on the ground of the old hllte of credit.
They were protected by funda quite as re-
u>e«table and as safe aa these. And some of
those of the oM Congress were hatter; for the
court will reoollect that in one Inatanoe, It
pledged all the coloniee.
The next arBumont which I am called to
eonaider has rcution to the peraona by whom
the notes or bills were Isaued. It is said that
they must be ofBcen of the State; and I under-
stand It to be admitted (at least not denied)
that if these notes had been Isaued by the gov-
ernor, auditor, treasurer, or oonunlaaloner, or
commiBBloners, appointed, aa of old times, for
Ihe purpose, and to act for the State, they
mi|^t be regarded as hllla of the SUte, and, of
tODrae, bills of credit.
Dpen what principle does this admlsalon
restl The offloers named — the governor, audit-
or, and treasurer — are not ofBcera for thia pur-
pMs. If they aifni and issue billa, it it not in
rbtae of their offices; It is no part of their offi-
cial dttty, but they do It as a special duty, as-
e^Md to them by law. lUght not the same
State, and they represent and be *lts (*Stt>
agents precisely fai tha aama sense, ana wt ~
the same blndlnc obligation on their p
dut^ ba asilped to any other puaoaa la tho
'ihey represent and m *lts t"
and
It would pnaalelngeDnity to deflne the dlst^
tion.
In anawer, then, to tha objeetlon, t malntaia
that the president and the directors of the Com-
mmwealth's Bank were the special ofHcen, tha
selected agtnte of the State for this duty.
They were appointed annually by the Legia-
lature, aa all other ofSeera weio. Sac. I, of
principal act, page SO, and see. S of ai
page lU.
They gave bonds, not to the corporation, bnC
to the State, aa other offieers do. They took
an oath of office, like others. They were re-
quired to keq) minutes or records of their aoti,
to be laid before the Legistature, their creaton,
or before any committee of that body (sec. IS),
that their official conduct might be known; and
they were removable by the resolution of tha
Legiiilatnre.
They were made a eorporatlon, that la, united
into one body, that they might sue and be sued.
But thia was solely to enable them to act as
the officer or agent of the State; not to give
them a right to act for themselves or others, or
to give any interest in the property, or any
rights other than the treaiurer or auditor might
have had. Suppose the treasurer of the Btata,
for the time Ming, had been commanded, and
been made a corporation to issue theae note*
and perform these duties, and to aue and be
sued; what would have been hia character, and
how would the notes have been regarded? Ha
would have been the officer of the State atill,
and the notes the notes of the Btate. I de-
mand, then, to have the difference explained, U
The duty wfiich theae officers had to dia-
charge was little more than to iasue the ootea
from what the law calls "small chan^," t»
any amonnt up to tlOO, and take security for
them (see. 4, and tec. 10 and IT of sup., pagO
170); to keep the treasury, and to account for
the profits. And all this not for themselves
but for the SUte.
Their loans were to be only to the govern-
ment and cltliens of Kentucky, and these loana
were to be negotiable and payable aa money.
Sa& SL
But there li still another feature which
makes this law nnconstltutional. Tha money
issued was made a tender by sec. 20. The se-
curities 'taken for loans of this money, [*SOt
are to be considered aa of record from their
date, and have priority of all mortgages and
conveyances not prerloualy recorded. Tha
Eroperty miritt he sold In sixty days, and
aught In; the debts for this money thus be-
came debts of superior dignity, and were to b*
flrrt paid. The notea were to be received for
taxea and dues to govamment, and for county
levies, for offlcera' fees and salaries. And by
an Act of 26th December, IBZO, iriileh may ba
regarded aa contemporaneous with the chartaTt
executions were suspended for two years, na-
lesa the ereditor would Indoree theroon that
these notea would be recelred tn payment; Bod
if a sale took plaoe, tt nnut be with a endit <(
two yean. Tha law thua Mfw«a4 tha '•"^^
SupBBMa Comr at raa Unimt lju.m.
oT tb«M bDli of credit as leg«l enrmioj. The
Cooititutton intended by its prohibition to for-
bid all interference with the legal currency.
A Btay for two yearg made it a tender for two
years. The power which could do thig for tvru,
could do it tor twenty yean. But my objeet
In referring to these proviaiona ii to draw from
them the obaraeter which tbe State meant to
five to the money. It clearly regarded these
notea as money, and meant to make them a
legal currency among its citizens, in virtue of
its own powers and credit, the precise object of
all the old laws authoriiing bills of credit.
When did any State do this in regard to bills
of corporatloDi or individualst Had they been
tbe property of the corporation, would they
hare been thus protected I Would It not hare
been a gross violation of tbe plain provision
of the Constitution that forbids the impairing
of contractst Indeed, if the two acts of 29tk
November and 2Sth December can be regarded
as contemporaneous, and parts of the same sys-
tem, that provision of the Constitution applies
to this law with irresistible force.
The attempt has thus been made to investi-
gate the meaniDS of the Conatitutlon and the
provisions of the law of Kentucky, and compare
them, and the result which seems to have been
reached is respectfully submitted. The Con-
stitution of the United States forbids a State
to issue bills resting upon Its funds and cred-
it, and is not to be evaded by mere finesse, and
forms, and names. It looks to the substance.
The notes of the Commonwealth Bank were
the notes of the State, issued by its officers for
the State; relying for redemption on the prop-
erty and faith of the State, and dreulated for
the profit of tbe State, and not of tbe bank, or
of any individual citiaens. The law, then, was
Id violation of tbe Constitution, and is void.
But does the case rest on argument and illns-
SIO*] trationt It has already 'been decided.
I have regarded the ease of Gratg v. The State
of Missouri as conclusive of the judgment of
this court upon the question involved here. Kot
only is that judgment, as pronounced by Chief
Justice Marshall, clear and esplicit, but the
grounds assumed by the dissenting judges oon-
flrm the principles now advocated.
That case is Before the court, and I can hope
to add nothing to its force, but I may suggest
that the grounds of doubt with the dissenting
judges do not exist In this case.
I am unable to perceive a distinction batwe«n
the cases, which wfll justify the condemnation
of the Missouri paper, and the support of that
of Kentucky, unless it be that the former was
aigned and issued under the authority of law,
by persons called auditor and treasurer; and
the latter was signed and Issued under tbe atl-
thoritT of law by persons called Tbe Common-
wealth Bank of Kentucky: a distinction with-
out a difference. Both were by agents of the
State, acting for the State, and the acts were
thus acts of the State. I am yet to under-
stsnd how a State can do that by a corporation
which it cannot do by other agency. If that bv
the piinaiple, its annunciation from a tribunal
of justice, will gire new light upon constitu-
tional law t« the people of this country.
I have preaented the argument, and do not
WW turn aside to Inquire into the conduct of
the BtMt*. or the galaa she Bwy have made by
TM
tbe issuing and bnmlag of her papw. If iks
had taken mortgages on the lands of aU her
citizens for her depreciated paper, and bron^t
them all to her granaries, as Joseph did in
Kg7Pt. it is a matter to be settled between her
and them. If she has mado Btoney mt of
them, they must seek the appropriate aatitfae-
Nor do I detain the court by balancing taoral
reaulta between her issue of depreciated papert
and the plaintiffs in error refusing to pay atill
more, after they have already paid more than
what they received was worth. The only
morality which is to be regarded In argument
before, or in its decision, by this high tribunal,
is that prescribed bv the Constitution and laws
of the country. It is, In this day, the safe mo-
rality, everywhere.
I ask for their Tindication, and fear no tarn-
sequences.
The disastrous day which my most eloqUBit
opponent depicted, will be found, not when aay
constitutional restraint shall be enforced eithv
on individuals or States, but when the com'
mands of the Constitution shall be disregarded,
and this last shield for its protection shall
show itself too weak to bear the weapons which
hurled 'against it. Believing that 1*111
mat time has not yet arrived, I confidently an-
ticipate its support by the Judgment of tbs
court In faTor of the plaintiffs :
Mr. Justice H'Lean delivered the opinion of
the court:
This case is brought before this court by a
writ of error from the Court of Appeals of the
State of Kentucky, under the 2flth section of
the Judiciary Act of 17BS.
An action was eommenced by the Bank of
the Commonwealth of Kentucky against the
plaintiffs in error, in the Mercer Circuit Court
of Kentucky, on a note for (2,048.37, payable
to the president and directors of the bank; and
the defendants flied two special pleas, in the
first of which oyer was prayed of the note on
which suit was brought, and they say that tbs
plaintiff ought not to have, etc., because the
note was given on the renewal of a liire not*
given to the said bank; and they refer to the
act establishing the bank, and allege that it
never received any part of the caoitat stock
specified in the act; that the bank was an-
triorized to issue bills of credit, on the faith of
the State, In violation of the Constitution of
the United States. That, by various statutea,
the notes issued were made receivable in dia-
charge of executions, and if not so reoeivod,
the collection of the money should be delayed,
eto.; and the defendants aver that the not* was
given to the bank on a loan of ita bills, and
that the consideration, being illegal, was void-
The second plea presenta, substantially, tba
same facts. To both the pleas a general de-
murrer was filed, and the court sustained tbe
demurrer, and gave judgment in favor of the
bank. This judgment was removed, by appeal,
to the Court of Appeals, which is the highest
court of judicature in the State, where the
judgment of the Circuit Court was atBrmedi
and being brought before this court by writ of
error, the question is presented whether the
notes issued by the bank are billi of eradit
emitted by the State, in violation of the Ob»>
stltntlM of the United BUtea.
1&S7
'. TuK Bars or tbi Coiuion»mu;TB or KctrmMV.
ThU eaiiM ia apprtiMhed under a full lenae
of it* mftgnitude. Important aa have beeo
tha great qufatiun* brought before thU tribu-
nal lor in ventilation uid deciaJon, none have
exceeded, If they have aqua Had, the Impor-
tance of that trhicD ariiei in tbli caae. The
ttmount of property involved In the principle ii
very large; but this amount, however great,
could not give to the caae the deep Intereat
which ia connected with Its political aapect.
SIX*] 'There is do principle on which the
senaibilitfei of comrnunitieB are lo easily excit-
ed, ma that which acta upon the currency; none
of which State* are eo jealoue aa that which
ia restrictive of the eierciae of sovereign pow-
ers. These topics are, to some extent, involved
ia the present ease.
It does not belong to thia court to select the
subjects of their deliberations, but they eanuut
afarink from the performance of any duty im-
poaed by tbe Constitution and laws.
The di'flnition of the terms "bills of credit,"
as ttaed in tbe Constitution, is the first requi'
site in the investigation of this subject; and if
this be not impracticable. It will be found a
work of no small difliculty. Even in standard
worka on the exact sciences, the terms used
are not alwaj's so definite as to express only
tbe idea intended. lu works on philosophy
there is, generally, still leiss precision of lan-
guttgn. but in political compacts, more it
often left for construction than in moat other
cotn positions.
This results, in a great degree, from the
elements employed in the formation of such
compacts; certain interests are to be conciliated
and protected; the force of k>cal prejudices
must t>e met and overcome, and habits and
nodes of action the moat oppoaite, are to be
reconciled. This was peculiarly tha caae in the
formation of the Constitution of the United
general excellence, both
ciplea and language, should
Uon.
Tbe terms bills of credit, in their raercaatile
sense, ecmprebend a great variety of evidence,
of debt which circulate in a commercial coun-
try. In the early history «f banks, it teems
their notes were generally denominated bills
of oredit, but in modem times they have lost
that designation, and are now called either
bank bills or bank notea.
But the Inhibition of tbe Constitution ap-
pliea to bills of credit In a more limited sense.
It wonld be difficult to elasalfy the bills of
credit which were issued In the early history of
thia eotmtrf . The^ were all designed to eirou-
late as money; being issued under tha laws of
the respective oolonies; bnt the forms were
various in the different colonies, and often in
the same colony.
In tome cases they ware payable with tn-
1 1 S*] tereit, (a othera mthout 'Interest.
Funds arising from certain sources of taxation
were pledged for their redemption, In aome in-
■tancca; in others thay were issued without
such a pledge. They were aonietimes made a
legal tender, at othera not. In some instances,
a refusal to rooefve then operated as a dis-
disrge of the debti In otfaars, a postponement
of it.
In payment of debts due to the public, except,
pei'iiapa, in some instaucea, where they had be-
come to depreciated as to be of little or no
These bills were frequently iisuod by oom-
mittees, and sometimes by an ofllcer of the
government, or an individual designated for
that pulposa.
The bills of credit emitted by the States dur-
ing tbe Revolution and prior to the adoption of
the Constitution, were not very dissimilar from
those wliii'h the colonies bad been in the prae-
tice of i»suing. There were some characteristics
which were common to all these bills. They
were iseui-d by the colony or State, and on its
credit. For in cases where funds were pledged,
the bills were to be redeemed at a future peri-
od, and gradually aa the means of redemption
should accumulate. In tome instances Con-
gress guarantied the payment of bills emitted
by a Bute.
They were, perhaps, never oonvartlble into
gold and ailver, immediately on their emitiioni
as they were issued to supply the pressing pe-
cuniary wants of the j^vemment, their cir-
culating as money was indispensable. The ne-
cessitf which required their emission, precluded
the possibility of their immediate reaemptiou.
In tbe case of Craig et al. v. The State of
Missouri, 4 Peters, 410, this court was called
upon for the first time to determine what con-
stituted a bill cf credit, within the meaning of
the Constitution. A majority of the judges in
that case, in the language of the Chief Justice,
say, that "bills of credit signify a paper medi-
um, intended to circulate between individuals,
and between government and individuals, for
tbe ordinary purposes of society."
A definition so general as this would oertain-
1^ embrace every description of paper which
circulates aa money.
Two of the dissenting judges on that occa-
sion gave a more definite, though, perhaps, a
less accurate meaning, of the terms bills of
By one of them It was aaid, "% bill of credit
may, therefore, be 'considered a bill [*314
drawn and resting merely on the oredit of the
drawer, as oontredistinguished from a fund
constituted or pledged for tbe payment of the
bill." And, in tbe opinion of the other. It Is
aaid "^Q constitute a bill of credit, within the
ling of the Constitution, it must be issued
by a State, and its circulation, as noney, en-
forced by statutory provisions. It mutt con*
tain a promite of payment by the State gener-
lly, when no fund baa been appropriated to
enable the holder to convert it into money. It
must b« circulated on the credit of the Slate;
not that it will be paid on presentation, but
that the State, at some future periud. on a
time fixed or resting in its own discretion, will
provide for the payment."
These definitions cover a Urge class of the
bills of credit issued and circulated as money,
but there are classes which they do not embrace;
and it is believed that no definition, ibort
of a description of each class, would be entln-
ly free from objection, unless it be in the gen-
eral terms used by the veaeiable and lamented
Chief Justice.
tu
SntauB Onm of nn UiniBt Statib.
cIsaBM of blila of ncdit amitted by the mIodIm
or StatM, ii a paper lisued by tha tovereign
Kwer, containing a pledge of tU faith, and
signed to circulate a< money.
Having arrived at tliie point, the next Inqufry
In the case ii whether the notes of the Bank o(
the Commonwealtb were bills of credit, within
the meaning of the Constitution.
The first section of the charter provides that
the bank shall be established in tne name and
liehalf of the Commonwealth of Kentaokj, lui-
der the direction of a president and twelve
directors, to be chosen by joint ballot of both
honsei of the General Assembly, eto. The
wcond provides that the president and diToetors
of the bank, and their succeieora in office, shall
be a corporation and body politic. Id law and
1b tact, by the name and style of the President
and DirectorB of the Bank of the Common-
wealth of Kentucky, and shall be capable, in
law, to sue and be sued, to purchase and aell
erery description of property.
In the third section it Is declared that the
atock of the bank shall be exclusively the
property of the Commonwealth of Kentucky,
and that no Individual shall own any part of it.
The fourth section authorises the president
and directors to Issue notes, etc.; and in the
0fth section It is declared that the capital stock
SIS*] 'shall be two millions of dollars, to be
CId as follows: "All moneys hereafter paid In-
the treasury for the purchase of the vacant
land of the Commonwealth i all moneys paid
into the treasury for the purchase of land war-
rants; all moneys received for the sale of va-
aant lands west of the Tennessee River, and ao
much of the capital stock owned by the State
In the Bank of Kentucky;' and as the treaa-
urer of the Btate recelvM these monevs from
time to time, he was required to pay the same
Into the bank.
The bank waa authorized to receive moneys
on deposit, to make loans on good personal
•ecurity, or on mortgages; and oy the ninth
aectloD, the bank was prohibited from Increas-
ing ita debts beyond double the amount of its
eapital.
Certain limitations were Imposed on toani to
Individuals, and the accommodations of the
bank were to be apportioned among the dif-
ferent counties of the State.
The president was required to make a report
to each session of the Legislature. The notes
were to be mads payable in gold and silver,
and were receivable ui payment of taxes and
other debta due to the State. All mortgaffes
executed to the bank save to It a priority. By
a supplementary act it was provided that the
E resident and (Urecton might Issue three mil-
one of dollars.
In ltS\ an act waa paaacd authorizing the
treasurer of the State to receive the dividends
•( the bank.
The notes Issued by the bank were In the
nauaj form of bank notes, In which the Bank
of the Commonwealth promised to pay to the
baarer on demand, the sum speclBed on the
face of the note.
There Is no evldenee of any part of the cap-
ital having been paid Into the bank, and as the
■leas to which tne demurrers were filed
It is to be regretted that any taehaleaJ point
arising on the pleadloga should be relied on la
this case, whieii Involves principle! and Inter-
ests of such deep importance. Had tlie bank
pleaded oyer and stated the amount actually
paid into It by the State, nnder the charter,
the ground on which it staoda would have been
strengthened.
Aj the notes of the bank ware receivable n
payment for land, and land warranta, and per-
hapa constituted no inconsiderable part of tba
circulation of the State, th« natnr;^ operation
would be for tha treasurer to receive tlie notes
of the bank, and pay them over to It, as
■a part of ita capital. This would be [*S1«
to the bank equal to a payment in the notes of
other banks, as it would lessen the demand
against it; leaving to the bank the aeciuities
on the original discounts.
The notes of this bank, as also tha notes of
charge of all executions hy plaintiB's, and if
they failed to indone on the execution* that
they would be so received, further proceedings
on the Judgments were delayed two years.
On the part of the plaintiffs in error, it b
contended that the provision in the Constitu-
tion that "no State shall coin money," "emit
bills of credit," or "make anything but gold
and silver coin a tender in payment of debts,''
are three distinct powers which are inhibited
to the States, and tbat if the bills of the Bank
of the Commonwealth were substantially made
a tender, by an act of the Legislature of Ken-
tucky, it must be fatal to tkt action of the
bank in this ease.
It is unnecessary to consider on this bead
whether the above provision of the act of tha
Legislature making these notes receivable la
discharge of executions, is substsntially a
tender law; aa such a question, however It
mif^ht artae on the execution, cannot reach the
obligation given to the bank. If the Legisla-
ture of a State attempt to make the notea of
any bank a tender, the act will be unconstitu-
tional; but such attempt could not affect, in
any degree, the constitutionality of the bank.
Tbe act referred to In the present case waa not
connected with the charter of the bank. So
far aa this act haa a bearing on the bills issoed
by this bank, and may tend to show thaii
proper character, it may be considered.
But the main grounds on which the counsel
for the plaintiffs rely is, that the Bank of the
Commonwealth, In emitting the bills in ques-
tion, acted aa the agent of the State, and that,
eonsequently, the oills were issuel by the
SUte.
That, aa a State is prohibited from issuing
bills of credit, it cannot do indirectly what it t*
prohibited from doing directly.
That the Constitution intended to place tlia
regulation of tbe currency under the control
of the federal government, and that the act of
Kentucky is not only in violation of the spirit
of the Constitution, but repugnant to its letter.
These topics have been ably discussed at tha
bar, and In a printed argument on behalf n[
the plaintiffs.
That by the Constitution, the currency, so
far as It Is eomposed of 'gold and silver, I'SlI
la placod nnder tlw azehmve ei»tral of Gov
IW
BuMol n aL. T. Tbb BahS or tbe CouuottwbLLTa c
KiirrnoKT.
«T
graH, b dear; and it U eonteniled, Insta the
mhlbitfon on the Statea to «mlt bill* of credit,
lliat the paper medium wat Intended to be
made subject to the lame power.
If thia argument be cotreet, the poiltfon
that a State cannot do Indi recti; irbat ft is
prohibited from doing directly be a lound one,
then It mult follow, aa a neceisar; conee-
qnence, that all banka incorporated b;r *■ State
are nnconitltutional. And thU, In the printed
argument, ie eameetlj maintained; though It
ia admitted not to be necesBary to ■uitaiu the
ground asBumed for the plalntiffa. The coun-
ael of the plaintilfB, who have argued the rate
at the bar, do not carrj the argument to thia
Thli doctrlm ia atartling, ■■ it atrllcea a fatal
blow against the State Iranke, which have a
capital of near four hundred millioni of dolian,
awi which tupplj almost the entire circulating
medium of the countrj. But let oa for a mo-
ment examine it dispaeslonately.
The federal government ii one of delegated
towers. All powers not delegated to It, or in-
■bited to the States, are reserved to the
(States, or to the people.
A State cannot emit bills of credit; or, in
other wordt, it cannot Issue that deierlptlon of
paper to answer tbe purposes of money, which
waa denominated, before tbe adoption of the
Constitution, bills of credit. But a State may
grant acts of inoorporation for the attainment
of those objects which are essential to tbe in-
t«reats of society. This power is incident to
•orereignt]'; and there is no limitation in the
federal Constitution, on Its eiercise by the
States, In respect to the incorporation of banks.
At the time the Constitution was adopted,
tbe Bank of North America, and the Massa-
droaetta Bank, and some others, were in opera-
tion. It canoot, therefore, be supposed that
the notes of these banks were intended to be
inhibited by the Constitution, or that they were
considered i* bills of credit, within the mean-
ing of that instrument. In fact, in many of
their most dlstingaisbing characteristics, they
wera eiaentially different from bills of credit,
In any of the various forms la which they w«re
aa nasd in the Constitution, they do not include
ordinary bank notea— does H not follow that
SIS*] 'the power to incorporate banks to Is-
sue these notes may be exereieed by a State T
A uniform course of action, iDvoIving the
rl^t to the exercise of an important power by
the State governments for Iialf a eentury, and
thia almost without question, ie so unsatisfac-
torj aVidence that the power la rightfully szer-
^•ed. But this inquiry, thon|^ embraeod in
tha printed argument, does not belong t« tbe
wae, and la abandoned at the bar.
A Stata eannot do that which the fadaral
ConaUtnUofl declares it aliall not do. It oannot
ooht money. Here ia an act Inblbltad in terms
ao predae that they cannot be mistaken. They
an ansocptlbla of but one oonstruction. And
it la certain that a State oannot Incorporate
ai>T number of indlvlduala, and antboriza them
to'eain Koaw. Such aa act would be aa mueh
a violation of the Ctmstitutlon as if the mtmmf
were coined by an oflicer of the State, under
Its auttiority. The act being prohibited, cannot
be done by a State, either directly or indireot-
ly.
And the same rule applies as to tlie emission
of bills of credit by a State. The terms used
here are less speciRe than thoee wbieh relate to
ijoinage. Whilst no one can mistake the latter,
there are great differences of opinion as to the
constmction of the former. If the terms In
eafh case were equally definite, and were sus-
ceptible of but one construction, there could be
no more difficulty In applying the rule in the
one ease than in the otiier.
The weight of the argument ia admitted that
a State cannot, by any device that may be
adopted, emit bills of credit. But the question
arises, what is a bill of credit within the mean-
ing of the Conslitutionl On the answer of
thw must dei^nd the constitutionality or un-
constitutionality of the act in question.
A State can act only through its agents; and
it would be absurd to say that any act was not
done by a State which waa done by its author-
ized agents.
To conetitufe a bill of credit within the Con-
stitution, it must Im issued bjr a State, on the
faith of the State, and be designed to oirculate
as money. It must be a psper which circulates
on the credit of the State, and is so received
and used in the ordinary business of life.
The individual or committee who issue the
bill must have the power to bind the State; .
they must act as agentii, and of course do not
ly personal renponaibility, nor impart,
credit, which a State cannot emit.
Were the notes of tbe Banlc of the Common-
wealth bills of credit, issued by the State T
Tbe president and directors of tbe bank were
incorporated, and vested with all the powers
usuaAy given to banking institutions. They
were authorized to make loans on personal se-
curity, and on mortgages of real estate. Pro-
viaiona were made, ana regulations, common to
all banks; but there are other part* of the
charter which, it la contended, show that the
president and director* acted merely aa agenta
of the Stata.
In the preamble of the act. It Is declared to
be "expedient and beneflcial to the State and
the eituens thereof to establish a bank on the
funda of the State, for the purpose of dia-
counting paper and making loans for longw
periods than has been customary, and for the
relief of the distresses of the community."
The president and directors were elected by
the Legislature. The capital of the bank be-
longed to the State, and It received the divl*
These and other parts of the charter. It ia
argued, show that the bank waa a mere instru-
ment of the State to Issue bills; and that, if by
such a device, the provision of the Constitution
mi^ be evaded, it must become a nullity.
That there is much plausibility and some
force In this argument cannot be denied, and it
would be in vain to aasert that on this head,
is elear of difficulty.
bank shows the objaet «f II
Il»
SUPUME COCTT or THI UldTBI STITH.
isn
wu intended to "relieve tlie diitrawe* of the
■igned, it ia truly Mid, for tbo numerous
eniii«ionH of paper manej during tbe Ravolu-
tion, mnd prior to that period.
To relieve the distreMei of the oommunft]',
or the wanta of tbe gorernment, has been the
oommon reason asaigned for tbe Increase of a
p»p«r medium, at all tiracB and in all couDtripa.
When a meaaure of relief ia determined on, it
ia DBTer difficult to And plausible reasons for it«
adoption. And it would stem in regard to this
nbjeet that the present generation has profited
but little from the experience of past a(^a.
The notes of this bank, in common with tbe
BOtea of all other banks in the State, and in'
dwd, throughout the Union, with some exeep-
tlO*] tiona, "greatly depreciated. This arose
from various causea then existing, and which,
luuier similar circumstances, must always pro-
duce the tame reault.
The intention of tbe Legislature in establish-
ing tbe bank, as expressed in the preamble,
must be oonsidered m conaectton with every
part of the act, and the question must be an-
swered, whether the notes of the bank were
bills of credit within the inhibition of tbe Con-
stitution.
Were these notes issued by the StataT
Upon their face they do not purport to be
iasued by the State, but by the president and
directors of tbe bank. They promise to pay to
borer on demand the sums stated.
Were they issued on the faith of the StateT
The notes contain no pledge of tbe faith of
the State in any form. They purport to have
fc«en issued on the credit of the funds of tbo
bank, and must have been so received in the
community.
But these
State; and the promise , ,
the notes was made by the president and direct-
ors, as agents of the State.
They do not assume to act a* agents, and
there is no law which authorises them to bind
the State. As in, perbapb, all bank chartera,
they had the power to issue a certain amount
of notes, but they determined the time and cir-
enmatauces which should regulate these issues.
When a State emits bills of credit, the amount
to be iasued is flxed by law, as also the fund
out of which they are to he paid, if any fund
be pledged for their redemptioni and tbej are
iasued on the credit of tbe Slate, which in some
form appears upon the face of the notes, or by
the signature of the person who issues tliem.
Ae to tbe funds of the Bank of the Common-
wealth, they were, in part only, derived from
the State, The capital, it is true, waa to be
Mid by the State; but in making loans, the
bank was required to take good securities, and
these oonstituted a fund to which the holders
of the notea could look for payment, and which
could be made legally responsible.
Ia this respect the notes of this bank were
osaeatially different from any class of bills of
eredlt which are believed to hare been issued.
The notes were not only payable in gold and
■llvar, oD demand, but there was a fund, and
tn all probability, a sufficient fund, to redeem
SSI*] 'them. This fund was in possession of
tka buik, and under the control of the nresi-
ent mnd directors. But whether the fund waa
adequate to the redemption of the notes itsned, i
or not, is Immaterial to the present Inquiry.
It is enough that the fund existed, independent I
of the State, and was sufficient to give soma '
deRTCe of credit to tbe paper of tbe bank.
The question is not whether the Bank of the
Commonwealth liad a large capital or a imall
one, or whether its notes were in good credit
or bad; but whether they were issued by the
SUU, and on the faith and credit of the SUto.
The notes were received In payment of taxes
and in discharge of all debta to tbe State; and
this, aided by the fund arising from notes dis-
counted, with prudent management, under fa-
vorable circumstances might have sustained,
and it Is believed did sustain to a considerable
extent, the credit of the bank. The notes of
this b«;nk which are still in circulation are
equal in vslue, it Is said, to specie.
But there Is another quality which distin-
guished these notea from bills of credit. Ev-
ery holder of then could not only look to tka
funds of the bank for payment, but he had, la
his power, the means of enforcing it.
The bank could be sued, and the records of
this court show that while its paper was de-
preciated, a suit was prosecuted to judgment
against It, by a depositor; and who obtained
from the bank, it Is admitted, the full amount
of his judgment, in specie.
What means of enforcing payment from the
State had the holder of a UU at credit I It b
said by the counsel for the plaintiffs that he
could have sued the StaU. But was a StmU
liable to be sued!
In the case of Chlsbolm's Executor v. Tha
State of Georgia, in 17S2, it was decided that a
State eould be sued before this court; and this
led to tbe adoption of the amendment of the
Constitution on this subject. But the bills of
credit which were emitted prior to the Consti-
tution, are those that show tbe mischief against
which tbe inhibition was intended to operate,
and we must look to that period, as of necessi-
ty we have done, for the definition and charac-
ter of a bill of credit.
Ko sovereign State is liable to be sued with-
out her consent. Under the articles of confed-
eration, a State oould be sued only In cases of
boundary.
It is believed that there Is no coae where a
suit has been brought, at any time, on hills of
credit against a State; and it is certain that no
'suit could have been maintained, on [*S9S
this ground, prior to the Constitution.
In tbe year 17S9, tbe Colonial Le^slature of
Maryland passed an "Act for emitting bills of
credit," in which bills to the amount of $3IS,-
000 were authorised to be struck, under the di-
rection of two commissioners, whom the gov-
ernor should appoint. These persons were to
be styled "oommissioners for emitting billa of
credit;" by that name to have sucueasion, to
sue or be sued, in all cases relative to their
trust. The commissioners were outboriced to
make loans on good security, to draw bills of
exchange on London, under certain oircum-
stanee*, and they were authorised to re-iasM
the bills issued by them.
In the year 1712, it is sUted in Hewit's ffla-
tory of South Carolina, the Legislature of that
colony established a public bank, and iasued
forty-eight thousand pounds. In MUs of srediti
1837
BuMoa R Ai. T. TtM Bams or thk CtuutomnuxB or Kxhtdcxt.
«KTl«d bank blllB, The naney wu to 1m lent
Mit ftt interest on landed or peraonal ieeurlty.
Tbe billt emitted under tbese acta are be-
IteTed to be peculiar, and unlike all other eiaia-
aioaa under the colonial govemmentB. But ft
■light examination of the respect ire acts will
•how that the bills authorised by them were
The
The holders of these bills eoiiid r
them into specie; they could bring no
ICaiyland bill was aa follows: ''This indented
bill of six dollars shall entitle the bearer here-
of, to receive bills of exchange payable in Lon-
4on, or gold and silver at the rate of four shil-
lingi and sixpence per dollar, for the said bill,
'according to the directions of an act of the as-
sembly of Maryland, dated at Annapolis: signed
by K. Conden and J. Clapham."
It the leading properties of the DOtes of the
Bank of the Commonwealth were essentially
different from any of the numerous clasgca of
bills of credit issued by the Slstes or colonies;
If they were not emitted by the State, nor up-
on Its credit, but on the credit of the funds of
the bank; if tli^y were payable in gold and sil-
Ter on demand, and the holder could sue the
bank: sod if to conittitute a bill of credit it
must be issued by a Slnfe, and on the credit of
the State, and the holder could nut, by legal
means compel the payment of the bill, how
can the clioiacter of these two descriptions of
Cper be civnidered as identical! They were
tb circulsled as money; but in name, in
form, and in substance, they differ.
SXa*] *[t is insisted that the principles of
this case were settled in the suit of Craig et al.
T. The Slate of Mifsouri.
Id that cnfc the court derided that the fol-
lowing paper, issued under a lc<!iKlative act of
Missouri, was a bill of credit, within the mean-
iae of the Constitution:
^^This certificate shall be receivable at the
treasury, or any of the loanoflices of the
State of Mi-'snuri, in the discharge of taxes
or debts due to the State, in the num of
dollars with intirest for the same, at the rate
of two per cent, per annum, from the date."
By the act, ccrtiflcntes in this form, of various
Amounts were issued, and were receivable in
discharge of all taxes or debts due to the State,
ftnd in payment of salaries of State officers.
Four of the seven judges conEiidered that
these certificalcB were designed to circulate as
money; that tlip.y were issued on the credit of
the State, and consequently were repugnant to
the Constitution.
These certidrates were loaned on good secu-
rity, at dilTercnt loan-ofnces of the State, and
were signed by the auditor and treasurer of
the Stale. They were receivable in payment
of salt, at the public salt-works, "and the pro-
esede of the salt springs, the interest accruing
to the State, and all estates purchased by olTi-
eers under the provisions of the act, and all the
debts then due, or which should become due to
the State, were pledged and constituted a fund
for the redemption of the ccrtiHcstes," and tli«
telth of the State was also pledged for the
Mve purpose.
It is only necessary to compare these certifl-
«stcs with the notes issued by the Bank of the
Commonwealth to see that no two things which
. .. ._ as money, and
were receivable on public account, but in every
other particular they were essentially different.
If to eonstitute a bill of credit, either the
form or substance of the Missouri certificate is
requisite, it is clear that the notes of the Bank
of the Commonwealth cannot be called bills of
credit. To include both papers under one des-
ignation, would confound the most important
distinctions, not only as to their form and sub*
stance, but also as to their origin and effect.
There is no principle decided by the oonrt in
the case of Craig v. The State of Missouri
which at all conflicts with the views here pre-
sented. Indeed, the views of the court are sus-
tained and strengthened by contrasting tbe
present case with that one.
The StaU of Kentucky is the exclusive stock-
holder in the Bank of *the Common- I*sa4
wealth: but does this fact change the charac-
ter of the corporation r Does it make the bank
identical with the StataT And are the opera-
tions of the bank the operations of the Slatet
Is the bank the mere instrument of tbe sover-
eignty to effectuate its designs, and is the State
responsible for its acts I
Ihe answer to these inquiries will be given
in the language of this court, used in former
adjudications.
In the case of The Bank of the United States
V. The Planters' Bank, 9 Wheat. 004, the Chief
■lustire, in giving tbe opinion of the court,
nays, "it is, we think, a sound principle that
when a government becomes a partner in any
tradinK company, it devests itxelf, so far as
concerns the tranEactiuns of that company, of
its sovereign character, and lakes that of a
private citizen. Instead of communicating to
the company its privileges and its prerogatives,
it descends to a level with tho^e with whom it
associates itself, and takes the character which
belongs to its associates and to the business
which is to be transacted. Thus, many States
of the L'nion who have an interest in banks, are
not suable even in their own courts; yet tliey
never exempt the corporation from being sued.
The Slate of Georgia, by giving to the bank
the capacity to sue and be sued, voluntarily
strips itself of its sovereign character, so far as
respects the transactions of tbe bank; and
waives alt the privileges of that character. As
a member of a corporation, a government never
exercises its sovereignty. It acts merely as a
cor|>orator. and exercises no otlier power in the
management of the affairs of the corporation
than are expressly given by the incorporating
"The government becoming a corporator
Ibj-s down its sovereignty so far as respects the
transact ions of the c<>r)iiir,ition, and exercises
no power or privilege which is not derived from
the charter.
"The State does not, by becoming a corpora*
tor, identify itself with the corporation."
In the case of The Bank of^ the Common-
wealth of Kentucky v. Wiater et al. 2 Peters,
318, the question was raised whether a suit
could l>e maintained sgain^t the Bank on the
(T'oiind (hat it was substantially a suit against
the State.
The agents of the defendants deposited a
large sum in the bank, and when the deposit
TM
SivButB Coun or thx UmnB Sums.
WM demABded, the tuink offered to p»y tha
■mount in its otia notet, which were At k dis-
count. The notes were rrfuied mnd a suit wu
commenced on the certificate of deposit.
A judgment being entered against the bank
sas*] in the Circuit Court of ■Eentuck;, a
writ of error was brought to tbit court. In
the eonrt below the defendant pleaded to tbe
jurisdiction, on tbe ground that the State of
Ktntucky alone was the proprietor of the stocic
of tbe Iwnk; for which resBoo, it waa insisted
that the suit was virtuall* agaiiut ft sovereign
SUta.
Mr. Justice Johnson, in giving the opinion
of the oourt, after copying the language uaed
in the case •hove quoted, says: 'if a State did
exercise any other power in or over a bank, or
impart to it ita soverei^ attributes, it would
be hardly possible to distinguish the issue of
tbe paper of such banks from a direct issue of
bills of credit, which violation of tbe Conati-
tiition, no doubt, the State here intended to
Can language be more explicit and more ap-
propriate than this, to the points under conaid-
erationt
This court farther say, "the defendants
pleaded to the jurisdiction on the ground that
the State of Kentucky was sole proprietor of
tbe stock of the bank, for which reason it was
insisted that the suit was virtually against a
sovereign State, But tbe court is of opin-
ion that the question is no longer open here.
The case of The United States Bank v. The
I'lsnters' Bank of Georgia, was a much stronger
case for the defendants than the present; (or
there the State of Georgia was not only a pro-
prietor, but a corporator. Here the State is not
a corporator; since, by the terms of the act, the
E resident and directors alone constitute the
ody corporate, tbe metaphysical person liable
If the bank acted as the agent of the State
under an unconstitutionej charter, although the
persons engaged might be held liable, individ-
ually} could they have been held responsible
OS a corporation T
It is true the only question raised by the plea
was whether the bank could be sued, as its
stock was owned by the State T But it would
be diflicult to decide this question without, to
•ome extent, considering tne coastitutioaality
of the charter. And, indeed, it appears that
this point did not escape the attention of the
court, for they say, "if a State imparted any
■yt its sovereiKn attributes to a bank in which
'.t was a stockhnlder, it would hardly be posai-
>ile to distinguish the paper of such a l>ank
Irom bills of credit;" and this, the court say,
''the State in that case intended to avoid."
These extracts cover almost every material
point raised in this iuvestisation.
Tbey show that a State, when it becomes a
sac*] stockholder in a bank, 'imparts none
of its attributes of soi-ereignty to the insti-
tution, and that this is equally the cose,
whether it own a whole or • part of the stock
of the bank.
It is admitted by the oounsel for the plain-
tiffs that s state may become a stockholder in
a Iwnk, but they contend that it cannot become
tbe exclusive owner of tbe stock. They give
■o rule by which the intarest «f a State in audi
1S«
an lurtltutioD ahsU fa* mduatod. nor «t wUi
rnint the exact limit ■hall be fixed. Itsy •
tate own one fourth, one half, or three fourtln
of the stock T If the proper limit be exceeded
does the charter become unconstitutional; and
is ita constitutionality restored if the St&ts
recede within the lindtT Tho court are as
much st a loss to flz the supposed oonstitatloa-
■I boundary of this right aa the counsel eu
possibly be.
If the State most stop short of owning the
entire stock, the precise point may surdy be
ascertained. It cannot be supposed that so im-
portant m constitutional principle as contended
lor exists without limitation.
it from owning tfas whole. As a atocitholder, in
the language of this oourt, above cited, it cob
exercise no more power in the affairs of the
corporation than is expressly given by the fai-
corporating act. It has no more power thaa
any other stockholder to the same extent.
This court did not consider that the chaiaeter
of the incorporation was at all affected by the
exclusive ownership of the stock by the State.
And tbey say that the case of The Planters'
Bank presented stronger ground of defense
than the suit against the Bank of the Common-
wealth. That fii the former, the State of Geor-
gia was not only a proprietor, but a corpora-
tor; and, that in the latter, the president and
directors constituted the corporate body. And
yet in the case of The Planters' Bank, the court
decided tbe State could only be considered as
an ordinarv corporator, both as it regarded Its
powers and responsibi lilies.
If these positions be correct, ts there not on
end to this controversy I If the Bank of tbe
Commonwealth is not the State, nor the agent
of the State; if it possess no more power than
is given to It in the act of inorporation, and
Ereciscly the tame as if the stock were owned
y private individuals, bow can it be contend-
ed that the notes of the bank can be called bills
of credit, in contradistinction from tbe notes ol
other banks T
Mf, in becoming on exclusive stock- ['SfT
holder in this bank, the State imparts to it
none of its attributes of sovereignty; if it holds
the stock as any other stockholder would hold
it; how can it be said to emit bills of credit)
1b it not essential to constitute a bill of credit,
within the Constitution, that it should be emit-
ted by a Stater Under its charter the bank
has no power to emit bills which have the im-
press of the sovereignty, or which contain *
pledge of its faith. It is a simple corporatioa,
acting within the sphere of its corporate pow-
ers, and can no more transcend them than any
other banking institution. The State, as a
stockholder, bears the same relation to the
bank as any other stockholder.
Tbe funds of the bank and ita property, of
every description, are held responsible for tbe
ment of its debts, and may be reached by
I or equitable process. In this respect, it
claim no exemption under the prerogatives
of the State.
And, if in the course of its operations ita
notes have depreciated like the notes of other
tanks, under the pressure of eircumatauecai
still it must stand or fall by its charter. I>
PMar* tl.
IttI
. tu. ^Ar
r THX OOHMOIfWCAITB OF KbiTUOKI.
nr
tkta lU powMi Are defined, uid Ha righU, and
the rigliU of tLose who give credit to it, are
guarantird. And eveii an abuae of ita powern,
through which iti credit haa been impaired and
tlia com muni t J Injured, cannot he considered in
W« are of the opinion that the act incorpo-
rating the Banlc of the Commonwealth waa a
GonBtllutional eierciee of power bj the State
of Kentucky; and, consequently, that the notei
iaaued b; the bank are not bills of credit, with-
in the meaning of the federal Conatitution.
The judgment of the Court of Appcala la
therefore affirmed, with intereat and ciMta.
Ur. Juatice Thompson,
I concur in that part of the opiniona of the
court which considera the billa iaaued by the
bank aa not coming under the denomination of
billa of ereiiit prohibited by the Constitution of
the United States, to be emitted by the Statee.
The two great inSnnitiea which attended the
bills of credit which circulated as money, and
come within the mischief intended to be (cuard-
cd against by the constitutional prohibition,
were the want of tome real and subslantial
fund being provided for their payment and re-
demption, and no mode provided for enforcing
(he payment of the same.
It is true that in many, and perhaps in moat
S3S*] cases where they "were Issued, pro-
viaion was made for the redemption of the
billa, so far as the promise of the State,
through Che medium of taxation, might be said
to provide the meana for payment. But this
was illusory, and could Id no way be enforced
The bills were always signed by some person,
who, upon their face, appeared to act tn the
character of agent of the State, and who could
not, of course, be made persona lly responsible
for their payment; and the State waa not
sukble under the old confederntbn, nor under
the present Constitution, even before the
amendment in that respect, by citizens of the
same State; and those would moat likely be
the persons who would be the principal hold-
era of the bills issued by the State of which
they were citiiens. There being, therefore, no
meana of enforcing payment of such bills, their
credit depended solely upon the faith and
voluntary will of the State, and were there-
fore purely bills of credit. But Chat Is not the
altuation or character of the bills of the bank
in question. There ts an ample fund provided
for their redemption, and they are issued by a
eorporation which can be sued, and payment
enforced in the courts of juatiea In the ordinary
mode of recovering debts.
If I eonsidered these l>ank note* as bills of
credit, within the sense and meaning of the
constltutitmal prohibition, I could not concur
in opinion with the majority of tiie court, that
they were not emitted by the State. The State
ia the sole owner of the stock of the bank, and
all private interest in it is expressly excluded,
"Hm State has the sole and exclusive manage-
ment and direction of all ita concerns. The
corporation ia the mere creature of the State.
and entirely subject to Its control; and I can-
not bring myself to the conclusion that such an
important provision in the Constitution may
be (Tadcd by mar* form,
• I.. W.
Mr. Justice SUrj, dissenting:
When this cause was fornjerly argued before
this court, a majority of the judffes, who then
lieard it, were decidedly uf opinion that the
act of Kentucky establishing this bank waa
unconstitutional and void, as amounting to an
authority to emit billa of credit, for and on be
half of the State, within the prohibition of the
Conatitution of the United States. In princi-
ple it waa thought to be decided by the c-ase of
Craig T. The State of Missouri, 4 Peters's R.
410. Among that majority waa the lata lb.
Chief Juatice Marahall — a name uevsr to be
pronounced without reverence. The cause hax
been again argutd, and precisely upon the eame
grounds as at the former argument. A majority
*of my brethren have now pronounced [*3as
the act of Kentucky to he constitutional. I dis
sent from that opinion; and retaining I he sam:'
opinion which I held at the &rst argument, in
common with the Chief Justice. I abalt now pro
ceed to state the reasons on which it is found
ed. I olTer no apology for this apparent ex-
ception to the course which I have generally
pursued, when I have had the misfortune to
differ from my brethren, in maintaining silence;
for in truth it is no exception at all, aa upon
constitutional questions I ever thought it my
duty to give a public expression of my opin
ions, when they differed from that of the oourt.
The first question naturally arising in the
case Is, wliat is the tme interpretation of the
clause of the Constitution that "no State shall
imit bills of creditf" In other words, what is
a bill of credit, in the sense of the Constitu-
tion T After tbe derUion of the caxe of Craig
V. The State of Missouri, 1 had not suppoeeii
Ihat thia was a matter which could be brought
into eonteatatlon, at least unless the authority
of that case waa to be overturned and the courl
were to be set adrift from its former moorings.
The Chief Justice, In delivering the opinion or
the court upon that occasion, In answer to the
very inquiry aald: "To emit hills of credit,
fonveys to the mind tbe Idea of iaauing paper.
Intended to circulate through the communitv
for its ordinary purposes as money, which
paper is redeemable at a future day. This Is
the sense In which it has been always under-
stood." Againi '^ha term has acquired an
ppropriate meaning; and bills of credit signi-
fy a paper medium Intended to circulate be-
tween individuals, and between government
id individuals, for the ordinary purposes of
society." Again; If the prohibition means
anything, if the words are not empty sounds,
it must comprehend the emission ol anv paper
medium by a State government, for the pur-
poses of common circulation." One should sup-
pose that this language was auRiciently exact
and definite to remove all possible doubt npon
the point; and it has the more weight, because
it came from one who was himself an actor in
the very times when bills of credit constituted
the currency of the whole country, and whose
e juBlifled him in this exposition.
seems that this definition is not now
deemed satisfactory, or to be adhered to; and
a new exposition is sought, which, in Its pre-
liicamcnta, shall not comprehend the bills In
question. The arguments of the learned counsel
For tbe bank, on the present occasion, have, as
it appears to me, sought for a definition whM
■hftll azdude 'any perils to their cus, [*tS*
Stmou Coun or thi Unm Seath.
Ml
rmtker than ■ deflnltfon foonded In the Inten-
tioB »ad Ikngasgs of tha Conatitotlon.
It appeAT* to me tbat the true nature and ob-
jects of the prohibition, ■■ well aa its language,
can properly be aacertained onl;f hy a rafer-
~e to hiafor^; to the mUcliieri exiiting, and
1 Statei.
If we look into the meaning of the phrase ai
it is found in the Britiab Ibwb, or In our own
lawi, aa applicable to the concern! of prirate
faidlrldaali, or private corporations, we shall
find that there ii no mystery about the matter,
and that when bills of credit are spolcen of, the
worda mean negotiable paper, intended to pass
as the more common phrase ia, banic billa, are
bills of credit They are the bills of the party
Inuing them, on his credit and the credit of his
funds, for the purposes of circulation as cur-
rency or money. Thus, for example, at we all
know, bank notes payable to the bearer (or
when payable to order indorsed in blank) pass
In the ordinary Intercourse and buBinEsa of life
M money, and circulate, and are treated as
money. They are not, indeed, in a legal and
exact sense, money; but, tor common purposes,
they possess the attributes and perform the
functions of money. Lord Mansfldd, in Miller
r. Bice, 1 Burr- 4S7, speaking on the subject
of bank notes, observed "that these notes are
not tike billa of exchange, mere securities, or
documents for debts, and are not ao esteemed;
but are treated as money, in the ordinary
course and transactions of credit and of busi-
ness, by the general consent of mankind; and
on payment of them, whenever a receipt is re-
quired, the receipt* are always given aa for
money, not as for securitiea or notes." And,
indeed, ao much are they treated aa money,
tiiat they pass by * will which bequeaths the
testator's cash, or money, or property.
In oonflrmation of what has been already
stated, it may be remarked that In the charter
of the Bank of England (in 6th and 6th Wil-
Uam and Mary, ch, 20, sec. 28) an express pru-
▼laion Is made, by which the bill or bills oblig-
atory, and of credit, of the bank, are declared
to be assignable and negotiable. Similar ex-
pressions are to be found in the many acta of
the American Statea, incorporating bsnka, at
ha* been abundantly ahown in the citations at
3S1"] the bar.' The "reason is obvious why
they are called billa of credit; they are intend-
ed to pass aa curreney, or money, and they are
issued on the credit of the banic, or of other
persons who are bound by them. Not but that
there la a capital fund or stock for their re-
demption, for, in general, al! bsnka hsve such
a fund, but that thr credit is *lill given to the
corporation, and not exclusiTcly to any par-
ticular fund. Indeed, In msay cases (as in
Massachusetts), the private funds and credit
of the corporators, are by law, to a limited ex-
tent, made reaponaible for the notes of banks.
.. .-e acts sitabllKhlDK the Bank of New
York, ITBl : tha Bsnk of Albany, !□ New York ; Ihc
Bank of PennsTlvsnla, ITOS : tbe Bank af Mew Jer-
MT. 1823 ; tne Bank at Baltlmari', 171)5 : tbt Bank
of VlralnU : the State Bank at North CarallDa.
IftlO ; lue uank of Oeorfls ; Uu Bank of Keotuckr,
Such, then, being the true and Mdintry
meaning applied to bills of credit issued by
banks and other corporations— that they are
negotiable paper, designed to pass a^ currency,
and issued on the credit of the corporation —
(here is no mystery in the application of the
same terms to the transactlnna of Ststes. The
nature of the thing is not changed; the object
of the thing is not changed, whether the nego-
tiable paper is issued by a corporation or by a
State. Hutato nomine, de te fabula narrator.
A bill of credit, then, issued by a State, It
able from the evidences of debt issued by s
State for money borrowed, or debts otherwise
incurred; not merely in form, but in substance.
The form of the instrument is wholly Imma-
terial. It It the substance we are to look to;
the qnestioD is, whether It ia issued, and Ii
negotiable, and Is designed to circulate ai
currency. If that is its intent, manifested
either on the face of the bill, or on the face
of the a«t, and it is in reality tbe paper itsot
of a State, it is within the prohibition of tbs
Constitution. If no such intent exists, then It
ia a constitutional exercise of power by tbt
State. This is the test; the sure, and, in m}
jndgment, the only sincere test, by which wt
All other tests which have hitherto been ap-
plied, and all other tests which can be applied,
will be illusory, and mere cierdscs of hamsa
ingenuity, to vary the prohibition, and evada
its force. Surely, it will out be pretended that
the ConatitutioD intended to prohibit name^
and not thin^; to hold up the solemn macker|
of warring with shadows, and suffering reslities
icape its grasp T To suffer States, on theil
credit, to Issue floods of paper money ai
■ne^: and if they do not call them bills of
credit, if they do not give *thcm tbe {'S>1
very form and impress of a promise by tbe
State, or in behalf of tbe State, in the very
form, BO eurreut, and so disastrous in fornur
times, then they are not within the prohibition.
Let the impreasiTc language of Mr. Chief Jus-
tice Marahsll on this very point, in the case of
Craig V. The State of Miasouri— a voice no*
spesking from the dead — let it convey its own
admonition, and answer to the argument.
And can this (said he) make any real difller-
jneeT Is the proposition to be maintained that
the Constitution meant to prohibit names, snd
not things T That a very important act, bij[
with great and ruinous mischief, which is ex-
pressly forbidden by words most appropriate
for its description, may be performed by the
substitution of a name? That the Constitn-
tion, in one of ita most important provisions,
may be openly evaded, by giving a new name
] old thir.gl We cannot think so."
t the argument need not be rested hem
The question here ia not what is meant by talU
of credit, in a mere theoretical sense. But i
trust that I shall abundantly show that tbt
definition which was given in the rase of Oraig
V. The State of Missouri, and the deflnitioa
which T maintain, is the true one; etripped rf
all mystery, and all extraneous iniFTCdients it
the true one; confirmed by the whole blstoryvf
the country; and that the true meaoing of biB
183T
Bbikoe bt At. *. The Ba.-<x or tbc Cohhohwbalth or Kkktuckt.
•f credit wki just as well Icnovn *nd under-
■toad from the past uid the passing eventa nt
the time of the adoption of the Conatitution, aa
tke tenni habeai aorpiu, trial by jury, procssi
•f impeachment, bill of attainder, or any other
^nae to be found in the technical vocabulary
of the Constitution. And I mean to insist that
the history of the ooloniee, before and during
the Bevolution, and down to the very time of
the adoption of the Constitution, constiCutei
the highest and most authentic evidence tu
whi^ we can resort to interpret this clause of
the instrument; and to disregard it, would be
to bind ourselvcB to the practical mischiefs
'trhich it was meant to suppress, and to forget
ail the great purposes to whicb It was to be ap-
plied. I tniat that J shall be able further to
■how, from this very history, that any other
deOnition of bills of credit than that given by
tli« Supreme Court in the ease of Craig v. The
State of Misaouri, is in opposition lo the gen-
«nal tenor of that history, aa well as to the
juanifest intention of the framers of the
Constitution.
Before I proceed further, let me quote a
^ngle passage from The Federalist (No. 44), la
■which the writer, in terms of strong deauacia-
tion and indignation, expoaes the ruinous effects
SS3'] of the paper money *of the revolution
(nniveraally in thoae days called by the name
«r bills of credit, for there was no attempt to
disguise their character), and then adds, "in ad'
dition td these persuasive considerations. It may
be observed that the Bsme reasous which show
-the necessity of denying to the States the
power of regulating coin, prove with equal force
that they ought not to be at liberty to substi-
tute a paper medium instead of coin." This
passage shows the clear sense of the writer
that the prohibition was aimed at a paper
medium, which was intended to circulate as
«nrrency, and to that alone.
But it has been said that bills of credit. In
the sense of tbe Conatitution, are those only
■which are made by the act creating them a ten-
der in payment of debts. To this argument, It
might be sufficient to quote the answer of the
Chief Justice, in delivering the opinion of the
«aiirt in the case of Craig v. The State of Mia-
■oari: "The Constitution itself (said he) fur-
nishes no countenance to this distinction. The
prohibition is general. It extends to all bills of
«r*dit; not to bills of credit of a particular de-
•eription. That tribunal must be bold, indeed,
-which, without the aid of other explanatory
-words, could venture on this eonstrnction. It
la the less admissible in this ease, because the
•ame clause of the Constitution contains a snb-
•tantial prohibition to the enactment of tender
lawa. The Constitution, therefore, considers
the emission of bills of credit and the euact-
ment of tcndsr laws as distinct operations.
Independent of each other, which may be sep-
antely performed. Both are forbidden. To
auatain the one because it is not also the other;
to aar Uiat bills of credit may be emitted, if
tb«7 M not a tender of debts, is in effect to ex-
yOBgl that distinct Independent prohibition,
aid to read the clause as if it had been entirely
anttted. We are not at liberty to do this.*
Bnt, Independently of that reasoning, the
tietorr of our country prove* that It is not of
the eesence at bills of eredit. It li not a purt of
• I4. ad.
their definition, that they should be a tender
in payment of debts. Many Instaneee in proof
of this were given in the opiTiion so often al-
luded to. Not a aingle historian Qpon this
subject alludes to any such ingredient as ea-
Bcntiat or indispensable-
It has been said (and it haa never tieen de-
nied) that the very first iasue of bills of credit
by any of the oolonte* was by the Province of
Massachusetts in ISSO. The form of these bills
indented bill of ten ahil lings, due
be ftocordincly 'accepted by the treasur- ['SSJ
er and receivera subordinate to him, in all pub-
tic payments, and for any stock at any time in
the treasury." Then followed the date and the
signatures of the committee authorired to emit
them.* They were not made a tender in pay-
ment of debts, except of those due to the State.
In 1702 (a Anne, ch. 1) another emission of
bills of credit for fifteen thousand pounds waa
authoriced in the same form, but they were not
made a tender by the act; and the then duties
of impost and excise were directed to be ap-
plied to the discharge of thoae bills, as also a
funds a
to be It
estates, real and personal, to be levied and col-
lected, and paid into the treasury in 170S. A
subsequent Act, passed in 1712, made them a
tender in payment of private debts. In 171S
(art. of 3d Geo. I. ch. 6) a further emission of
one hundred and fifty thousand pounds in
"bills of credit," waa enpreaaly authorized to
be made in the like form, to be distributed
among the different counties of the province in
a certain proportion stated in the act end to he
put into the hands of five trustees in each
county, to be appointed by the Legislature, to
be let out by the truateea on real security in
the county, in certain specified aums, for the
space of ten years, at five per ceot. per annum.
The mortgages were to be made to toe trustees,
and to be sned for them, and the profits
were to be applied to the general aupport of the
government. These bills were not made a ten-
der. Now, this act is most important to show
that the fact that the bills of credit were to be
let out on mortgage, was not deemed the slight-
est degree material to the eiscnce of such bills-
An act for the emission of bills of credit, not
materially different in (he substance of Its pro-
visions, had been passed in 1714. I Geo. I. eh.
S. Another act for the emission of fifty thou-
sand pounds, in bills of credit, was pai^sed In
1720 (7 Geo. I. ch. D}, containing provisions
nearly eimilar, except that the trustees wore to
setts bills, and they were made a tender In pay-
ment of all debts, excepting special ones; and
similar bilU were issued in 1710 and 1711. In
17IG another iasue was authorized, to be let
out by truatees and committees of towns on
mortgage for ten years. There 'is no [*S3K
clauac in the act declaring them a tender. The
same year another emission was anthorlMd.
1, — Sec X Story's CotameDt. on tlM Constltetlm,
TSt
Stl, not* 9;
tU StmMMm UDtnr or i
In 1709 ttie Colonj of CoBoectlent BUthoHted
an etnlialon of bill* of credit In • elniiUr form,
kppropriatlng k tax for th«ir redemption. Then
wu n« dauM ntaking them ■ tender. Numer-
DOB other *eta of tlie like nature were paued
between that period and 1731, lome of which
mad* them a tender and otherm not.
Ib 1709 the Colour «' ^'"^ ^orl' I>b<i«^ ^illi
of credit, in a form sutntantia)!^ the ume, and
they were mada * tender in the payment of
4*Ma, and these bille were to bear Intereat.
llaMj other emiseioua of bills of credit were
fmn time to time authorited to be made in
•Imlltr forma, they were generally made a ten-
d<r, uid generallT funds wei« prorided for
tMr due redemption.
b 172E the FroTince of Penntylvania letued
biUi of credit, In a form not aubataDtiallj dif-
ferent from thoie of the New England Statea,
which ware delivered to truateea, to be loaned
OB mortgagea, on land, or ground renta, and
they were made a tender in payment of all
daWB. Other emiaaiona, for like purpoaea, were
Mtthorlced by aubeequent laws. In the year
1739, an emiation of bills of credit waa author-
iied by the State of Delaware for aimilar pur-
fOMa, and in a aimilar form, to be loaned on
vortgasea. They were made a tender in pay-
ment of debts and a sinking fnnd waa provided.
In I7S3 Maryland authoiized an emission of
bUla of credit to the amount of njoety thou-
•ud pounds, to be iaaued by and under the
management of three eommiaalonera, or true-
teea, who were incorporated by the name of
'The Commissionera or Tmstees for emitting
mis of Credit;" and by that name might sue
and be sued, and sell all real and personal
estate granted them In mortga^, etc. These
billa of credit, with certain exceptions, were to
be lent ont, on intereat, by the commissioners
or trustees, at four per cent,, upon mortgage or
personal security; and a sinking fund was pro-
vided for their rulemption, etc.. and they were
made a tender In payment of debts. Another
emission was authorlied in 1769, and two com-
missioners were appointed to emit the bills, to
be called "CommissionerB for emitting Bills of
Creditj" and by that name to have succession,
and to sue and be sued. These bills also were
to be let out by the commissioners, on aecurity,
and a fund was provided for their redemption.
These bills ware not made a tender.'
SSC*] *In Virginia, billa of credit were is-
sned BB early as 1766, under the name of treas-
ury Botes, which bore Interest, and were made
a tender In payment of debts. Emiasions were
Bubaequently made at other periods, and espe-
cially In 1769, IT7I, and 1773. These three last
were not made a tender. In 1778, another emis-
doD of them was authorited, which were made
a tender, and a fund was pledged for their re-
demption. Many other iasuea were subsequent-
ly msde, which were a tender. What dcmon-
•tratea that these treasury notes were deemed
bins of credit, is the fact that by an Act
paased In 1777 (ch. 34) it was made penBl for
any person to "iasne or offer in payment any
bill of eredlt, or note, for any sum of money
1. — I bave been favored wltb a sifht of ane or
the orlflnal bills iHiied aDder the Act at Msrjland
of ITAS. It la a* Mlowa: "This 1ndont«d bill of
six dollira, abaU entitle the t ~ " ■ .. _
iim:
payable to the bearer;" and that the Aii if
1779 (ch. B4) makea it a fekiny for any peiMa
to steal any bill of credit, or treasury note, or
"loan-office certiScate of the United Statea, or
any of them;" and that the Act of 17M (eh.
19), after reciting that the eiigenciea of tht
war requires the emission of paper money, etc,
authorizes the emission of new treasury notes,
and proceeds to punish with death any person
who shall forge "any bill of credit or treasury
note, to be iasued by virtue of this act." In
1748, North Carolina authorised the emission
of bills of credit, which were made a tenda,
and a fund was provided for their redemption,
and many subsequent emissions were author-
iaed, with similar provisions.
In 1703 South Carolina first issued billa of
credit. They were to bear an intereat of
twelve per cent. Funds were provided for
their redemption. They do not aeem originally
to have been made a tender. Many other acta
for the emission of bills of credit were, from
time to time, passed by the colony; some, if not
111) of which were made a tender. One of these
nets, passed in 1712, was of a peculiar nature;
but as I have not been able to procure
a copy of it. I can only refer to it aa U la
stated by Hewitt (1 Hewitt, Hist, of So. Oar.
204), who aaya: "At this time the Legistaturr
thought proper to establish a public bank, and
issued forty-eight thousand pounds in bills of
credit, called bank bills, for answering the exi-
gencies of government, and for the oonvenienee
of domestic commerce. This money was to be
tent out at interest on landed or personal se-
curity, and, according to the tenor 'of [*•*!
the act for issuing the same, it was to be sunk
gradually by four thousand pounds a year,
whirb sum was ordered to be paid annually by
the borrowers into the hands of the commis-
sioners appointed for that purpose." In 17flO,
Georgia authorized an Emission of bills of cred-
it to be let out at interest, and mortgage*
were to be taken by the com miss ion era. These
bills were made a tender. Subsequent acts for
issuing bills of credit were passed, bnt it b
not necessary to recite them.
Congress, during the revolutionary war. is-
sued more than three hundred millions of bi^U
of credit. The first issue nss in 1776, and the
confederated colonies were pledged for their
redemption. None of the bills of credit issued
by Congress were made a tender; probably
from the doubt whether Congress possessed the
power to make them a tender. The form of
ihose first issued was as follows: "This bill
i-ntilles the bearer to receive Spanish
milled dollars, Or the value thereof, in gn'dand
silver, according to the resolutions of Congress."
The lest emission was made in 1780. under the
'.■uaranty of Congress, and was in thr following
form: "The possessor of this bill shall be paid
Spanish milled dollars by the 31st of
December, 1780. with interest, in like money,
at the rate of five per cent, per annum, by the
Slate of according to an act of the
Legislature of the State of the — —
day of , 1780." The Indorsement by
ralva bills of eicbBnge, pa;
payable In Ixindo
•I (OBI shlllinxi
' I pCDCe ■terllng. or dalUr. far tbt said btll ; acrord-
\0K to Ihp dlircllon ol ha ici ot AiaemblT of Mary-
ISDd. dstrd St Aonauolla. (bis fonrtli dav of Uareb.
A. D, 1770. B. ronden. J. C. t^laobsm." Tbns
gpntlement were, doubtleas. the cominlsslonen bf-
I pointed under Om act.
law
BuBooK Kt «!. T. Tux Bahs of thk Commumwealib or Kbhtucki.
381
CongrcM WM, '^TIm United SUtoa inanra the
pAjment of the within bill, kiiii will draw hilU
of uehanga ■nnuallj, if demanded, according
to ft rwolve of CongreM of the ISth of Klarch.
1780." These bills were expressly required by
Gongreis to issue on the funds of the individual
States eatablished for that purpnge, and the
faith of the United Btates was pled};ed for their
paymeDt. They were made receivable in all
public pByments.
I will close this unavoidably prolix, though,
!■ By judgment, very important review of the
Uator; of bills of credit in the colonies, and
dnrisg the Revolution, with a reference to the
Act of 24th of Geo. II. (ch. S3, liSl}, for regu-
lating and restraining the ieeuea of paper
money in New England. That act, in Its pro-
hibitory clause, expressly forbids the issue of
'%Iiy paper bills, or bills of credit, oF any kind
or denomfnation whatsoever," except for cer-
tain purposeH, and upon certain specified
emergencies, and constantly speaks of "paper
bills, or bills of credit," as equivalent ex p res-
alona; thus demonstrating that tbe true mean-
ing of bills of credit was paper emitted by
the Stat«, and intended to pass as currency;
SSI*] or, In other words, 'as paper money.
It further requires that the acts authorizinz
aueh issues of "paper bills or bills of credit,*^
■hail provide funds for the payment thereof,
and makes provisions for cases where such
"paper bills or bills of credit" had been loaned
out oo security, and declares that "no paper
currency or bills of credit," issued under the
act, shall be a legal tender in payment of any
private debts or contracts whatsoever.
This historical review furnishes a complete
anawer to every argument which has been used
on the present or on former occasions, which
made the nature of bills of credit depend upon
maj other quaHty than the simple one of I>eing
for money and negotiable, and designed to pass
aa paper money or paper currency. When it
ia aaid that it ia of the essence of "bills of
cra^t," that they should be a legal tender, we
Bad that many of tliem never were a tender.
Nar, that the enormous issues by the revolu-
tionary Congress were altogether stripped of
mnat be enforced by statutable provisions.
And tliat in many cases, from the very nature
and cliaracter of the acts, no such compulsory
circulation was contemplated. They did not
in their form, generally, contain any express
promiM on the part of the State, to pay tliem,
whether funds were provided or not, and the
same form was used in both cases. There was,
indeed, in m^ Judgment, in every case an im-
plied obligation and promise of the Btate to
pay them, whether funds were provided or not.
When it Is said, that it is not a bill of credit
nnleaa credit is given to the State on its own
express sromise to pay, and not when the paper
is only declared to be reoeivable in payment of
debts dne to the State; that there must be a
promiae to pay, and not merely a promise to
reoaWv, we find that the very first issues of
bnia ef eredit were of thii Tery character, end
ooltalaed no promise; and yet the colonial
not a bill of eredit, nor a bill which contalna
no promise to pay at a future day, we find that
on their face nearly all the colonial issues wue
without sny limitation of time, and were re-
ceivable in payments to the State immediately
upon Lheir presentation, though funds for their
redemption were not provided except in
futuro. The issues by Congress were, with a
single exception, without any limitation of time
as to payment, and were to be paid in gold or
*The emiBsion of 1780, already stated, [*SSa
was to be paid at a future time. But Congress
made no express promise to pay any of their
other issues — they simply pledged the colonies
for their redemption — and yet Congress called
them bills of credit. When it is saU that bills
of credit cannot bear interest, for that dia-
Sialiftes them for a paper currency, we find,
at in point of fact, such billa were Isaued
both by the colonies and by the revolutionary
Congress-, and, indeed, since, by the United
Slates, in tbe form of treasury notes. When
it is said that bills of credit are such only aa
are issued upon the mere credit of the State,
and not bottomed upon any real or substantia)
fund for tbeir redemption, we find that in most
cases the colonial bills of credit were Issued
upon such funds, provided by the very terms of
the acts. The statute of 24 Geo. II. (ch. 03)
also in terms applies the very phrase, not only
to bills resting on the mere credit of the State,
but also to bills having suitable funds provided
for their redemption. It goes farther, and pro-
hibits the colonies, in future, from issuing Mich
bills without providing suitable funds. In
short, the history of bills of credit in the
colonies conclusively establishes that nons of
these ingenious suggestions and distinctions,
and definitions, were or could have been in the
minds of the framers of the Constitution.
They acted upon known facta, and not theories,
and meant, by prohibiting the States from
emitting bills of credit, to prohibit any issue,
in any form, to pass as paper eurrency orpapel
money, whose basis was the credit, or funds
or debts, or promises of the States. The]
looked to the mischief intended to be guardet:
against in the future by the light and rxperl.
ence of the past. They knew that the pape;
money issued by the States had constantly de-
preciated, whether funds for its redemptioi
were provided or not; whether there was a
promise to pay, or a promise to receive; whetl -
er they were payable with or without interest ;
whether they were nominally payable, In pn-
---" - in futuro. They knew that whatevir
gold and silver, is, and forever must be liab'v
to constant depreciation. We know the san'e
facts as well as they. We Iniow that U-^
treasury notes of the United States during tlie
late war depreciated fifty per cent.; that dnv-
ing the period of the suspension ot specie pay-
ments, by our private banlcs at the aami
period, though with capitals supposed to be
nmple; their hank bills sunk from fifteen to
twenty-flve per cent, below their nominal value.
The bills of this very Bank of the Common-
wealth *of Kentucky, of whose solid and [*S49
extensive capital we have heard so much, were
admitted at the armunent to hart nink Oftj
T4I
OOUKT 0
p«r Mnt. from their nominal vfttna. The fram-
•n of the Conititution coutd not, without ir-
I (not to uae « itronger phr&Be), be
d to prohibit nameg and not things; to
I a blow at the artificial forma in which
paper currency might be clothed, and leave the
niMtancB of the mischief untouched and unra-
drea»ed; to leave the States at liberty to issue
■ flood of paper money, with which to inundate
the community, upon their own lole credit,
fimda and respoiiBibilily; so always, that they
did not nte certain preacribed forms of expres-
■Ion. If the Slates were to possess these at-
tributes la ample sovereignty, it was worse
than useless to place such a prohibition in tfa*
front of the Constitution. It was holding out
a solemn delusion and mockery to the people,
by keeping the faith of the Constitution to
the ear, and breaking It to the sense. My
judgnient is that any such interpretation of the
Constitution would b« as unsound as tt would
be mischievous. The Interpretation for which I
contend is precisely that which was main-
tained by this court In the case of Craig v. The
State of HisBouri; where all these Ingenious
anggestions, distinctions and defluitions, to
which I have alluded, were directly overruled.
I might Indeed have spared myself some labor
In these researches, if I had not coni>iilc!red that
ease as in aome measure assailed in the pres-
•nt decision; if, Indeed, It is not shaken to Its
T^ foundation.
^e nest question in the case is whether the
act of Kentucky establishing this bank is un-
constitutional, by authorizing an emission of
bills of credit In the shape of the bank bills or
notes of that bank, witliin the prohibition of
the Constitution. The argument is that the
State cannot do that indirectly which It can-
not consistently with the Constitution do
directiv; and that the bank corporation is here
the sole and exclusive instrument of the Btate,
managing ita exclusive funds, for its exclusive
benefit, and under its exclusive managoment.
Even this obvious principle — that the State
cannot be permitted indirectly to do what it it
directly prohibited to do by the Constitution —
has been denied on the present occasion; upon
what grounds of reasoning, Iprofess myself in-
capable of comprehendinst. That a State may
rightfully evade the prohibitions of the Consti-
tution by acting through the instrumentality
of agents in the evasion, instead of acting In
its own direct name, and thus escape from all
Ita constitutional obligations, is a doctrine to
which I can never subscribe, and which, for the
honor of the country, for the good faith and in-
»41»] tegrity 'of the States, for the cause of
sound morals, and of political and eivit liberty,
1 hope may never be established. I find no
warrant for any such doctrine In the ease of
CraiK f. The State of Missouri, either in the
opinion of the court or in that of the dissenti-
ent judges.
The other part of the argument, from which
the conclusion is drawn that the act Is uncon-
stitutional, requires a more extended considera-
tion. But before proceeding to that, tt is
Kper to notice the statement at the tiar, that
point of the constitutionatity of this act
has already been decided by this court. If so,
I bow to its authority. I am not disposed to
shake, eren If I oould, tbe aolemn docislona of
T4I
TBK UMtnco States.
isn
this court upon any great principles of law)
snd, a fortiori, not that which respects the in-
lerpretation of the Constitution itself. But I
ihall require proof before I yield my assent
that the point has been so decided. The caaa
relied on is The Bank of the Commonwealth
of Kentucky v. Wister, Z Peters's R. 318. U
my judgment, that case justifies no such eon-
elusion. It was not even made or suggested in
the argument. It waa not touched by the judg-
ment of the court. Whnt was that caaal
Wister brought a suit In the Circnlt Court ol
the United States in Kentucky, against tba
bank, to recover a sum deposited in the baalc
The bank filed a plea to the jurisdiction of the
court, alleging that the bank waa a body cor-
porate, eatablished by an act of the Legiala-
ture of Kentucky, and "that the whole capital
stock of the said corporation Is exclusively and
solely the property of the State, and that the
State, in her political sovereign capacity aa a
State, is the sole and exclusive and only mem-
ber of the corporation." The court decided that
the suit was rightfully brought against the
corporation, and was within the jurisdiction of
the Circuit Court. Why? Because the eoort
were of opinion that though the corporation
was created by the State, the Btate was not
even a member of the corporation. "The presi-
dent and directors alone (said Mr. Justie*
Johnson, in delivering the opinion of the court)
constitute the body corporate, the metaphyaieal
person liable to suit. Hence, by the laws of
the State itself, it is excluded from the char-
acter of a party, In the sense of the law, when
spenkiug of a body coniorate." And In con-
firmation of this view of the matter, a passage
was cited from the opinion in Tbe United
States Benk v. The Planters' Bank of Qeorgla,
B Wheat. R. 904. Tbe learned judae then said
—sod this is the comment on which so much
reliance has been placed — "To which it may be
added, that if a State did exercise any other
power in or over a bank, or impart to it ita
sovereign attributes, it would be hardly poasi-
hie 'to distinguish the Issue of the [^141
paper of such banks from a direct Issue of bills
of credit, which violation of the Constitotion
no doubt the State here intended to avoid."
Now, this language imports, at most, only
chat a ease might have existed, which would
have been a violation of the Constitution, bnt
which was admitted not to be tbe case before
the court; that is, where the State imparted
its sovereign attributes to the corporation.
The court do not say that the Constitution of
the United States had not been violated by
the issue of the bank bills, for that question
was never presented for their consideration;
but only say that the State did not Intend
to violate the Constitution, and did not intend
to communicate its sovereign attributes.
Neither the facts of the case, the declaratioa,
nor the plea to the jurisdiction, in any mannar,
raised or could raise any such queation. Tka
corporation, as such, was capable of suinf aai
being sued by the laws of Kentucky. Howaw
proper, then, the language might have be«i Ma
an admonition of the danger to the bank. If
their ground of objection to the jortadiettaa
was maintainab]*. It did not commit tbe eoBrt
in the aligbteat manner to any deSnltire opfa-
BauooK ai AL. V. Tu Bank «r mm Cuu mom wealth or Kistuokx,
842
lorn M ta tha eonatltutloiiBUtj of Iti Imum of
t«Bk paper.
Let OS now proceed to the con tide rat ion of
the charter of the bank, and ascertain whether
it U a mere agent of the State, and what i
the powers and authorities which are given
it ai to the Usue* of bank bilti. The Act
1B20 deelarei, in the first aection, that a bank
ahall be, and thereb; is established, "In the
name and on behalf of the Commonwealth of
Kentucky;" under the direction of a president
and twelve directors, to b« chosen bj the Legie-
iWtnre from time t« time bj Joint ballot of
both houses. The second aection declares the
president and directora a corporation, hy the
corporate name, etc., eonferrlDg on the corpo-
ra,tfan the usual powers. The third section de-
clares that the whole capital stock of the bank
ahall be eKclusivelj the property of the
Commonwealth of Kentneky, and no individual
or corporation shall be permitted to own or
p*y for any part of the capital of the bank.
The fourth aection declare* that the president
and directors shall have power to issue notes
not under the denomination of one dollar, nor
over one hundred dollars, signed by the presl-
dant, and countersinied by the cashier. These
bills or notes are, by subsequent aeetions, an-
thorited to be made payable to order or to
bearer, and to be negotiable accordiuKly; and
tbey are declared to b<e receivable at the treas-
vrj, and by public officers in all paymenta of
taxes and other debts to the EJtate, and for
S4S'] county levies, and are to 'be payable
and redeemable in ^Id and silver. The capital
stock of the bank is to consist of two millions
of dollars, to be raised and paid aa follows: all
moneys paid into the treasury for the pur-
ehaae of vacant lands of the State, and so
much of capital stock owned hy the State ia
the Bank of Kentucky (which it aeenis had
then stopped payment) aa may belong to the
8tat« after the aCrairs of that bank were set-
tled up, with the profits thereof not hereto-
fore pledged or appropriated by law. And the
treasurer of the State was required, from time
to time, as he received moneys, or any of these
■ocounti, to pay them to the bank. By other
•ectioni, the bank was authorised to discount
bills of eichange and notes, and to receive de-
posits, and to loan money on mortgage on real
Mtate, distributtns their loans In certain pro-
portions among tne dtlEnns of the different
eotmtiGs; and the interest arising from all loans
and discounts, after payment of expenses, was
to be considered as part of the annual revenue
of the State, and subject to the disposition of
the Legislature. The notes of the Bank of Ken-
tucky were also receivable in payment of all
debts dne to the Commonwealth Bank.
Buch are the principal provisions of the
ckarter. It is clear, therefore, that the bank
was a mere artiflcial body or eoiporation, cre-
ated for the sole benefit of the State, and in
which no other person had or could have any
sliare or interest. The president and directors
were the mere agents of the State, appointed
and removable at its pleasure. The whole
the other funds were not originally eoDveved
to or vested in the corporation, hut were left
in the free poaseiuion of the Slate itaelf. The
preaident and directors had no interest whatso-
ever in the institution, but only hud the man-
agement of it, subject to the control of the
State. They were not personally liable for
nonpayment of any of the bills, or notes, or
debts of the bank; but only for their personal
misconduct in any excess of Issues or debts be-
yond double the amount of the capital stock.
The State was entitled to all the profits. And
though the bills and notes of the bank were
declared pajable in gold and silver, it seems
that no human being was made directly re-
sponsible for the payment; not the president
and directors in their private capacity, fortjiey
contracted no personal responsibility ; and not
the State (as we have been told at the argu-
ment), because the State had not, in its owa
'nams, promised to pay them: nay, it l*S44
is said that these bills and notes were not even
issued on the credit of the State.
Another thin^ is quite clear, and that is, that
as the bank existed for the sole benefit of the
State, and all its officers were appointed by
the State, and removable at its ]Measure, the
State possesaed an unlimited power over the
corporation. The whole funds poaaesacd by it,
whether they were capital stock, or debts, or
secnritlea, or real estate, or bank notes, be-
long In fact to the State. The State was the
equitable owner, and might at any time, with-
out any violation of the rishta of the corpora-
tion, which was its own exclusive agent, resume
and appropriate these funds to itself, and
might at its own pleasure repeal and annihilate
the charter; and by ita sovereign legislative act
become, ipso facto, the legal owner, as It was
in fact the equitable owner of the property
and frenchise. I know of no principle oi law
or of the Constitution which would have been
violated by such a course; for it would have
been only conferring upon the equitable owner
the legal title to his own estate and property,
and resuming, on the part of the principal, the
funds and the business confided to his agents.
The bills or notes of the bank were to eirou-
lat* a* currency. That is so palpable on the
faoe of the charter as not to have been even
questioned at the argument. They were, then,
stripped of mere tediuical forma, the bills of
the State issued by the agent of the State, on
the exclusive funds of the SIste, for the bene-
fit and profit of the State; to circulate as cur-
rency within the State, and without any other
responsibility than that of the State. In what
respect, then, do they differ from bills of credit
of the State t I c
the State is not responsible, directly, or indi-
rectly, for their payment. I confess, nntU I
heard the argument at the bar, I bad not sup-
posed that any such proposition would be main-
tained, or could be nuUntainable. If these bills
were not issued on the credit of the State, on
whose credit were they istnedt It is said that
they were issued on the credit of the corpora-
tion; and what Is the corporation I A mere
metaphysical being, the creature and agent of
the State, having no personal existence, and ia-
.pable, per se, of any personal responsibility.
Sanaa Coon cv the Uhitb) Statw.
Ii»
Tlie president Bad direetcm couttitnted thftt
corporBtion, and were ito lole members, and
they vera not perBonallj liable. The official
legal entit;, called the president and directors,
might be aued. But what then! The capital
S4S*] stock waa 'not vested in them, so as to
be liable to be taken in execution In a suit
against them. Could a creditor of the corpo-
ration seize or sell the publia land, on his ex-
ecution against them I No one pretends that.
I the State should choose, .
of the corporation to itself; could the creditor
haT« anf redress against the State? It ia ad-
mitted that he could not have any redress, tta-
eauae the State is not suable.
It la said that the bills are not talcen on the
credit of the State, because the State haa not
promised, in terms, to pay them. If it had so
promised, the State not being suable, the holder
could here have no redress against the State.
But J insist that, in equit; and in justice, the
bills must be treated as the bills of the State;
and that if the State nere suable, a bill in
equity would lie against the State, as the real
debtor, as the real principal; and I aay this
upon principles of eternal justice, and upon
principles as old as the foundationa of the com-
mon law itself. How can it be truly said tbat
these bills were not taken on the credit of the
State I Were they not to be paid out of the
proceeds of the public lands, and other prop-
erty of the State? Were they not receivable in
payment of debts to the State, for the very
reason that they were the ibbues of the State
for its own benefltl And was not credit given
t« the State upon this very ground T It has
been said at the argument that funds were pro-
vided for the payment of the bills by the pro-
Tlsiona of the charter, and therefore no credit
to the State, ultra these funds, can be inferred.
Bat Burelj the case of the old colonial bills of
credit answers that position. They had funds
assigned for their redemption; they in many
cases had mortgages upon loans authorised to
be made, as they_ are in the present charter,
and yet the Legislature eallea them bills of
credit. The colonies did not promise to pay
them, and yet they deemed them their bills of
credit. Why I Because in truth, and in fact,
and not upon any metaphysical subtleties, and
Actions, they were issued' upon the general
credit of the State; and if the (nnds pledged
fell short of the payment, the State was bound
to redeem them. The argument on this head
assumes the very matter in controversy. It as-
sumes that the State never directly, or ulti-
mately, held itself out aa responsible for the
payment of the bills, but that the holder trust-
ed, and trusted exclusively, to the funds pro-
vided for him in the charter. Xow, I deny this
inference altogether. Because a State assigns
funds for the payment of its debts or bills,
does it follow that the h<dder trusts exclusive-
ly to those funds! When a creditor takes a
S40*] pledge *or has a security for payment
of his debt, does he thereby exonerate the
debtor from alt personal responsibility! If
the agent la authoriMd to pledge certain funds
of his principal for the payment of the debt,
does that exonerate the principal from all per-
sonal liability t No such doctrine has ever yet
been established to my knowledge in uiv sode
of law, and, least of all, hi eommon law. On
the contrary, it is at the common law held in-
cumbent on those who insist that there has been
any exclusive credit given to a fund, to es-
tablish that faet, by clear and irresistible
Suppose in this very case the corporation had
circulated, as it had a right to do, ita own bank
bills to the amount of $5,000,000; and the
funds assigned by the State, anil the funda in
the hands of the corporation had been wholly
inadequate to redeem themi would not the
State have been bound in reason, in justice,
and in equity, to pay the deficiency! Would a
court of equity, for a moment, tolerate any
private person to escape under such circum-
stances, from his own responsibility for the acta
and conduct of his agent, fully authorized by
him! Would it not say, qui sentit commodum,
sentire debet et onus I Would it be consistent
with good faith for a State to proclaim th^t it
was not bound by the solemn obligationa of ita
own agents, acting oflicially for its own exelo-
tive l^nefit and interest, and upon ita own
funds, to the payment of debts thus justly and
honestly contracted T I put these questions, be-
cause it seems U> me that they can be answered
only one way, and that is, by aflirniing the
positive responsibility of the State, in foro
juatitim. The citizens must be presumed to
trust, in all such cases, to the general credit
and good faith of the State, and not merely ta
the fund contemplated or provided for their
redemption. So, m similar cases, tho colonies
understood their own obligations. So the Con-
tinental Congress, and so the United States
have constantly understood their own obliga-
tions. Altbou^ a fund may have been provid-
ed for payment of their bills of credit, although
those bills of credit contained no direct prom-
ise of the State; although they purported, in
form, to be the acts of trustees, or commie-
sioners, or committees acting under the au-
thority of the State; ^et they well undiTstood
that the genera! credit of the State, for the
redemption of the bills, was necessarily Im-
plied; and that without that silent necessary
pledge the bills could not, and would not have
circulated at all, except upon compulsion, and
by irresistible power of the government.
It la obvious that whether a State be suable
or not, cannot constitute "a test whether[*S'l3
an instrument of currency issued by or on be-
half of a State, be a bill of credit or not. It
may be a bill of credit, although the Stale li
not suable thereon; as was, in fact, the case
with all the anti -revolutionary bills of credit:
for the colonies never were suable. On the oth-
er hand, the State may expieasly allow itself
to be sued on an instrument issued in its be-
half; and yet it may not be a bill of credit.
Aa, for example, a State may authorise suite
to be brought for debts due by itself; and If
it should issue, through its officers, a certificate
of loan for money borrowed, if it were not in-
tended to pass as currency, it would not be a
bill of credit.
But it is said that here the State waa not
only not suable on these bank hills, but that
the corporation itself was expressly suable un-
der the charter, and the promise to pay was
made by the corporation; and the promise beiag
made by the corporation, it. In nffect, exclude*
Petcra 11.
Ull
Bbucoe ki ai. t. Tub Bamk of tuk CoMMOHWKAitH or Kxmtugbz.
M7
nj •bligktlon on tht part of the State. Then
u DO magic in words. What w>i this corpora-
tios in fact! A mere legal entity i a mere]
agent of the State, exialing for the State, with
funds belonging to the State, nnd dealing whol-
ly upon the tredit which theie bills derived
from the State. The persons who were presi-
dent and directors for the time being, were not
(as I have already said) personally liable for
the payment of those bills. The metaphysical
personage only was liable; and the promise, if
it is not to be treated as a mere delusion and
phantom, was the promise of the State itself,
through that personage. Suppose the State
had autlioriKed its treasurer, in his ullicial ca-
pacity, and without any perBOnal liability, to
u«ue these very bank bills, saying, "I, A. B., as
treasurer, promise to pay," etc, and the wliols
proceeds of these bills were to be for the benefat
^ the State, and they were to he paid out of
the funds of the State, in the treasury; eou1d
then he a doubt that the State would, in
inth, be the real debtorT That they would be
btued on its credit T That the State would, in
oa&adenee. In common honesty, in justice, be
responsible for their paymenti If this would
be tme in such a case, I should he glad to know
In what respect that eaao aubEtantially differs
from the one before the oourtT It is precisely
the very ease, and in the sama predicament aa
the bills of credit issued by Maryland in 1733
and 1786. There the commiesioneri were cre-
ated a corporation, and were to issue the bills,
and were authorized to sue and be sued; and
no one ever dreamed, and least of all, the State
itself, that they were not the bills of credit of
the State. If a State can, by so simple a device
aa the creation of a corporation as its own
14(1*] 'agent, emit paper currency on its own
funds, and thus escape the solemn prohibitions
of the Constitution, the prohibition is a dead
letter. It is worse than a mockery. If we
mean to give the Constitution any rational in-
terpretation on this subject, we must look be-
hind forms and examine things. We must as-
certain for whose benpflt, on whose credit, with
whose funds, for what purposes, of currency or
otherwise, the instrument is created, and the
agency established. TVbetlier it be the issue
of a treasurer of a State or of a corporation of
a State, or of any other ofHciBl peraonage, must
be wholly immaterial. The real question must
be, in aU cases, whether, in substance, it is
tbe paper currency of the State.
But it has been ai^ed that if this bank be
nnaonatitntional, all State banks founded on
private capital are unconstitntional. That
C 'position I utterly deny. It is not a leeiti-
ta conclusion from an* just reason applica-
ble to the present esse. The Constitution does
not prohibit the emission of alt bills of credit,
but only the emission of bills of credit by a
State: and when I say, by a State, I mean by
or in behalf of a State, in whatever form issued.
It doc* not prohibit private persona, or private
partnerships, or private corporations (strictly
*o ^led) from issuing bills of credit. No evils,
or, at least, no permanent evils, have ever
flowed from such a source. The histoiy of the
country had furnished no examples of that sort,
of a durable or widely extended public mischief.
And If any should exist, it would be within tbe
competency of the State legisiaturea to furnish
9 I..ed.
an ade<iuate remedy against such issues by pri-
vate persons. In point of fact, prohibitions now
exist in many States against private banking,
id sgainst the issue of private bank paper,
with tiie intent that it shall pas* aa currency.
The mischief was not there. It had never been
felt in that direction. It was the issue of bills
of credit, as a currency; authoriied by the
State on it* own fund*, and for its own pur-
poses, which constituted the real evil to be pro-
vided against. The history of such a currency
constituted tbe darkest pages in the American
annals, snd had been written in the ruin of
thousands, who had staked their property upon
tbe public faith, always freely given, and but
too often grossly violated. The great inquiry
at the adoption of the Constitution was not
ii'b"i!ier private banks, corporate or incorpo-
rate, should exist; not whether they should be
permitted to issue a paper currency or not; but
whether the State snould issue it on it* own
account. The anxious inquiry then was, quia
eustodiet oustodesT The answer Is found in the
"Constitution. But it has, in my Judg- [*S4ff
ment (though I am sure my brethren think
otherwise), become a mere name. Stat nomlnla
Tbe States may create banks as well aa other
corporations, upon private capital; and, so far
as this prohibition is concerned, may rightfully
Buthoiize them to issne bank bills or notes a*
currency; anbject always to the control of Con-
gress, whose powers extend to the entire regu-
lation of the currency of the country. When
banks are crested upon private eapital, they
stand upon that capital, and their credit Is lim-
ited to the personal or corporate responsibility
of the stockholders, as provided for in the
charter. If the corporate stock, and that only,
by the charter is mads liable for the debts of
the bank, and that capital stock is paid in,
every holder of its bill* must be presumed to
trust exclusively to the fund thus provided, and
tbe general cr«lit of the corporation. And In
such a case, a Slate owning a portion of the
funds, and having paid in it* shars of the capi-
tal stock. Is treated like every other stock-
holder, and is understood to incur no public ra-
ajionsibility whatsoever. It descends to tiie
character of a mere corporator, and does not
act in the character of a sovereign. That was
the doctrine of this court in The United States
Bank V. The Planters' Bank of Geor^a, B
Wheat R. 904. "It is (said the court on that
occasion), we think, a sound principle, that
when a government becomes a partner In any
trading company it devests itself, so far aa
concerns the trvuaetions of that company, of
its sovereign character, and take* that of *
tirivate dtiEen." In the present case, the Legis-
sture expressly prohibited any partnership, or
participation wltb other persona In this bank.
It set it up, exclusively upon the cspita) of
the State, as the exclusive property of the State,
and snb!ect to the exclusive msnagement of the
State, through its exclusive sftents. It acted,
therefore. In it* sovereign character and capac-
ity, and could not, even for an instant, even in
intendment of law, devest itself in the trans-
actions of the bank of that character and ca-
T have not thought it necessary. In the views
which I have taken of this case, to reaort to the
741
SUFBBUt COUBT <tf THE UsITtll StATH.
•Ute of the pleading!, though thty fortir^
every portion of the reasoning which 1 have ea-
deivored to maintain. One of the avermenls in
tlie first pJea is that the president and direct-
ors of the liank weie illegal]; authorized, "for
and on behalf of the Commonwealth, and upon
her credit, to make billij of credit, to emit bills
or notes, to an amojiit not exceeding -^
S&0*J miUioo* *of dollai-s, etc., ana When so
made, etc.g to emit, issue, and circulate through
the community for its ordinarj purposes, as
money." The plea goes on to allege that the
president and directors had before the date of
the note sued, on, "for, and on behalf of the
CommonwoBlth of Kentucky, and on her crad-
it, made various bills of credit, viz. notai of
variou* denominations, in amount, from one
dollar to one hundred dollars, etc., promising
therein, and thereby, to pay the person on each
note mentioned, or bearer on demand, the
amount therein mentioned In money, and were
transferable by delivery." The demurrer ad-
mits the truth of these averments, and upon
technical principles of pleading, I do not see
how their conclusiveness in the present question
can be avoided. But I do not rely on the state
of the pleadings. I found my judgment upon
credit, within the true intent and meaning of
the Constitution ; that they were issued bf , and
Id behalf of the State; upon the credit of the
State; by it* authaH;ted agents, and that the
issue is a violation of the Constitution.
I am conscious that I have occupied a great
deal of time in the discussion of this grave
question; a question, in my humble Judgment,
second to none which whs ever presented to
this court, in its intrinsic importance. I have
done so, because I am of opinion (as I have al-
ready intimated) that upon constitutional ques-
tions, the public have a right to know the opin-
ion of every judge who dissents from the opin-
ion of the court, and the reasons of his dissent.
I have another and strong motive — my pro-
found rcvprence and affection for the dead.
Mr. Chief Justice Marshall is not here to speak
for himself, and knowing full well the grounds
of hia opinion, in which I concurred, tlut this
act is unconstitutional, 1 have felt an earnest
desire to vindicate his memory from the impu-
tation of rashness, or want of deep reflection.
Hod he been living, he would have spoken In
the joint names of both of us. I am sensible
that I have not done that justice to his opinion
which his own great mind and exalted talents
would have done. But with all the imperfec-
tions of my own efforts, I hope that I have
•hown that there wore solid grounds on which
to rest his exposition of the Const itutioii. His
•a] tern accumulem donis, et fungar taai)i
munere.
The judK"i«iit of the Court of Appeals of tlw
State of Kentucky {■ aflirnicd with costa.
S51M •EDWARD LIVINGSTON'S EXEC-
UTItlX, Appellant,
BENJAMIN STOHY.
Lonlalana law — construction of an "antichresis"
— prescrl p t ion — practice.
LoalaiaM. On tiM 2Stb Julj. 1823, Uvlntaton
ume paid to L. ;
wllb the latcTcsC
ducted. Tbe agree
.f $a5.-
_ ._ -J then Uelng boUt
I'bis aum was rccelied, part In cuali, part to a
promisBOP]- Dotf, iDd IK,Ouo were ti be paid to tbc
coutraclor for aolBblng tbs etOiitl an the Jot. The
propettjf wai eonTeyed by LuinKston to fort &
Story, uj a deed of absolute coDTeyaace -, and he re-
ceJred (rom V. A 3. ■ counter letter, bv which tliej
Komlsed to reconrev tbt propertr to film, It. od or
fore the lit or February. IsSs, be paid then
.'-,>, UUO. By the counter letter, on paympni or the
loan, the property waa to revert to L. ; If nut. [t
was to be sold by an auctioneer ol the dly of New
rrsldue of the proceeds of the
the money advanced by F. A S.
aud the eipenaea, betas Irat de-
_. „._.>ment for building the stores waa
transferred by L. to F. i 8., and they agrwd to
pay the tS.OUO as the work proceeded, In Inatal)-
ments. CSo the 1st of February, 18^3, the bulldints
bad not been romniried. anrt tr •■ B .. 1 li:::
the payment o
postponed UDtl
UOO to be Incn
elibteen per ei
the residue far cipenseR of selling the pruperty at
auction, etc An agreement was maae that If the
amount named abould not be paid on the let of
June, 1823, the properly ahould be lold at bucUob,
and after the repayment of the aum of KT.S")*,
the eipeoacB of aule. etc.. the realdue should bit
paid to L. By the same ae'eement, the counter let-
ter was to be delivered up, and the record of It can-
celled. On the 'ia or June, tbe money not being
Kid by 1^ to F. & ».. It waa agreed that If on or
fore the Bth of AuRust, ls:i3. the sum due, with
amount to |a7,auo.7B. ahould tiot be paid by"t, (o
V. It S.. tbe lot. and all the bulldlcgs should become
tbs full and absolute properly of F. & S. Tbt
money was not paid, and P. & S. prnlested, as tbey
had done on the 4th of Kebiuary. tor noncom-
pllance with the agreement to pay the money
sgreed to he paid. From this tlmf F. & .''. cootfn-
uad In poaaeaalon of the lot and the buildings, un-
tile the death of Fort, la Ibi^S; when ». puichoied
the ihare which bad belonged to F., and he bolda
the propeity to tbls time. The evidence In I'
case abowed that after July, 1822. tbe contnri
>mplel
f the
'"-"-"■iecome a ciiiien ,. .....
. ..the Va\
r.asiern uiatnci of Louisiana, claEming lo nave toe
property beld by S, reconveyed to bim. oh the pay.
ment to B. of tbe sum due to him. and loten-at an
the same, deducting the rents nod proQta of tbe
■ — "-— "■ '■sulci be Bo'd aecoraing
I. tbe aam* deduc
naiance remaining irom me sale ahould W a*
1 to him.
I TUB court: After much Ingulry and dellber-
n. *Bnd a comparison of the Civil Code [•SSS
.Duli^tnna with Ibe civil law from which II d^
s its origin, and with wbleb It Is still in clot
:t and couclcr It
._. _ By tl _ .. _.
tract, the poasesslon of tbe properly 1^ transferred
to the person sdvanclnR Ibe money. That was doDI
in this caae In case of failure to pay, the prop-
erty la to be sold by Judicial procrsn. and tbe sun
which it may bring, iv'r the sniount for what It
waa pledged. Is to be paid to the person making the
pledge. In thla caae a provision waa made for ■
sale by the parties, upon the failure of naymaol;
antlrbresis than otherwise; for It Is. at moat, odIj
B BubatltiillOD by tbe parties of what the laws «
Louisiana require. The decree of the court waa
!n conformity to those prlnclplea.
Nora, — As to when a deed, wftb cootimct to re-
convey, etc., given back, constltutca a mortsaf*
and wban not, IM note to S L. ed. V. 9. 321.
"etem 11.
LivDfonoN'a ExEcimix v. Sroiv.
•crarttr: the intlehrfiti li wbeo tbe wcurtty tlv«D
'-'M tn Immorablm.
Tlu iDtlcbreBii
Inr tilt fruits i -
■IT.D to htm li
The c
editor 1
Daund, I
}it. I[ any
rdl HI tbe
trarf U SKFeed on. (o paj tbe taiea.
•onual cbKrECs of tba property clteu >u uiui >«
S ledge. He fi llkewlae bcuod, uadec the pmalt; ol
imacea, to provide for thp h»e[)!ii£ and npceaurj
repairs of tbe plHlred titate ; and may lay out.
ttoD tbe rcTeniiea at the eitate. lulDclent for aucb
The creditor dope not become proprietor of the
Bledged ImmoTBhIea bT tbe faliur* at payment at
ii> ■inrpil lime : aOT clauae to tbe coDtrarT la null :
;. IE ts oDly lawful tor bim to BU^
the court Id order to obtoln a
blm. and lo canae the objrcti
r befor
Bounced thia rJibt.
the enjojnii ■ " '
Jormtnl of the liui
i; but tbe
D tbe obtlEaCIOQB
. r-- Ibe debtor lo retalie
of biB ImmoraUea.
if preicrlptlon, under tbe cItII law,
doe* not ap^ly tn fbls caae, irblch la one of plede^:
and it It doea. tbe time before the iDatltnilon ot
lit had ool elapsed, in wbkh. by Ibe law of
■na, a peraoa may aue for ImmoTable prop-
SRd r
Loulali
"■■fi.
and eaneclally ti
dlaabllity. or per
doea not allow a'
if thiB (
>nrt for tbe resniatii
cult CoartE, la unden
matlcra appllcabli
nlemi to ifip '— —
fr;?/n':i'an't'
a plea, t
,_.-H(llrtlon:
any peraonal
'dllDi; a for-
any ipeclal
■atter tn bla auawer : and have alao tbe bene,
thereof, aa If be had pleaded the Bame matter, or
had demurred lo the b^ll. In Ihia rpnpect. tbe rule
'- '-e of Ibe Keneral rule of the
: Id wblcb, matters Id abate-
ledletlan, being preTlmlnaiy la
nature, must be taken adTantaxe ot by plea,
ipnot be taken adrantan of tn a seneral ■□■
awer, which Deceasarlly admlta the rlfbt aDd cap-
acity of tbe party to lae.
(relT affli
Court of Chn
their' nature, i
the United States for the Eutern
Diatriet of Louisiana.
The case, aa stated In the opinion of the
eourt, wag as follows:
The complainant, the appelUnt'i testator, on
the first daj of Febniary, 1834, Bled a bill in
•ouftj in the District Court of Louisiana, in
which he stated himself to be a citizen of the
State of New Vork, ngaiiut Benjamin Story, a
dtiien of the State of Iduisiana.
The bill charsed that aoiBe time previona t«
the 22d of July, 1822, the comptninant. being
in want of mane;, applied to the defendant and
John A. Fort for a loan, offering aa a serurity
a lot in tbe city of New Orleans, on which a
building. Intended for stores, had been begun;
that the defendant and Fort agreed to loan him
twenty-two thousand nine hundred and thirty-
six dollars; of which a part only was paid in
cash, part in a note of John A. Fort, and eight
thousand dollara of which was afterwards
agreed between himself, the defendant and
Fort, to be paid by Fort A Story to one John
Rust, a mechanic, who had contracted with the
complainant to complete the stores. That t'o
secure the money borrowed, complainant con-
Teyed to Port & Story the lot of ground men-
tioned, and that cotemporaneouaty with the
deed of sale, they executed, on their part, an
instrument in writing, called a counter letter,
by wliich they promised, on the payment of
twenty-five thousand dollars, on or before the
let day ot February, 1823, to reconvcy to the
complainant the property which be had con-
veyed to them. The complainant further
charges that of the sum ot twenty five thousand
dollars to be paid by him on the 1st of Febru-
ary, a part of it was made up by a charge of
interest at eighteen pe? cent, per annum, upon
the amount of twonty-two thousnnd nine hun-
dred and thirty-six dollars, actually advanced
to him, and to be paid on his account to Rust,
by Fort ft Story.
The complainant also transferred his written
contract with Rust to the defendant and Fort,
rendering himself responsible for the proper
employment of the (8,000, and which was to
be piid Rust in weekly payments, by the de-
fendant and Fort. Rust, on his part, consented
to the transfer of hit contract, and accepted
Fort ft Story in the place of the complainant.
The stores were to be completed by Rust by
the lat ot Xovember, IB23, in a workmaolika
manner, and all the materials, except those al-
ready proTided, were to be found by Rust;
and in his contract, be renounces all claim or
'privilege upon the building beyond |*S64
S8,000, which was to be paid him by Fort ft
Story, for the complainant. The deed and
counter letter, and agreement with Rust, ara
in notes A, B and C.
'The complainant charges that soon [*SftB
after the transaction he left New Orleans, and
that when he returned to it he found that Fort
,_1 Deed. In the city ol New Orleai— .
LoQlalaoa. oo this 2SIb day of_ July. ]_S2Z.
e of]
ind 1
tbe forty -SI- ventb year ot the Indep^ndecce ot Ibe
United StHli'i of America. Deface me. Hughes La-
versne. a notary public, duly commlaalDoed and
Siallfled. In and for tbe city and pariah of New
ricaas, reaidlDi tbereln, aod In tbe presence of
d Ut
barratned and lold, and do
Gant. bMtaIn and sell, nltb
lo JobD A. fort and Benjac
pa reel of troQod ■
cKt,
1 by these presents
n Story, ot this city,
ui, luiu Bcteptlni, all tbat
Bted on tbe batture of tbe
niburb St. Uary. betweeo ComaioD and Cravler
Street*, meaiurlni eUbty two teet. froatlBS Oom-
(Don Street, one buodied and tweoty-ili reel, or
thereabokiu, frootlnr Tchoupltoulas Btriet. one
hundred and forty-alt feet, or tberesbouta, front
Inc New Levee tjtreet ; and bounded on [be other
itda of the lot ot cround beloniinf to MeasrH.
ArniBot, Uors*. and KUltr, and Pierce, contaln-
• li. ed.
ty feet, or therealnuta.
Bold, tocetber with lb*
Lod all other appurte-
lornlng without any eiceptloo or leaerya. (he said
purcbaaera declarlQK Ihai ibty are perfeLl.y ac
qualnted with (be prcmlsis. and do not ulah for
any further description ot the fame-
Tbe abOTe-descrlLicd property belooai to (he said
between him and the heirs uf Gravler, by act be-
fore Carlisle Pollork. notary pulillc of this cltT,
uDder date of tbe Sd ot Uay, 181S. and Ii free oi
morlgaee. aa appears by tbe recorder * certtllcats
delliered this day, and bereunio annexed. TbiF
sale la made for and In <:oDildera(Ion of the aum of
2B.0O0 dollars, wblcb prire tbe aald tender acknowl-
edgea (o base received from the BBld purcbaaeta,
out ot the prrience of Ibe uDdernlRDed notary and
wltnesae*. renounelDC tbe exception aon numeratl
pecuDia, and giving these preaenta to tbe said pur-
-' *"" -— * — "-e acquittance aod dlscbargc
a full a
Bin«ma Covwt or raw Vrnm Statib.
i*«r
, , , I hU M-
eount, but thai little or nothing hnd been done
toward the completion of the itoreB; ao that tf
the property had been sold on the flret of Feb-
ruary, according to the terms ot the counter
letter, it would not have produced anything
SSfl*} *like ita full value. That under thpso
eircumatancEB he applied to Fart & Story tor
further timp, which they would not consent to,
but OB certain conditions; which were, that llie
Property ahnuld be adTcrtUpd for sale, on the
2d of June, 1823; that the sum due then
■hould be incrensed from $25,000 to f27,500;
vhich was so [ncreased hy the addition of
$1,600 M interest, at eighteen per cent, for five
months, tSOO for auctioneer'* commissions, $50
for advertising, and $1&Q arbitrarily added by
tbe said Fort A, Story. The complainant states
th&t being entirely at the mercy of Port ft
Story, he ccnsented to those terms, and exe-
cuted a paper accordingly.'
The hilt further slates that the complainant,
on the 2il of June, in order to obtain a delay of
■ixty days, was forced to consent to sign a
paper, by which it was agreed that the debt
ahould be Hugmented to tlie sum of $27,sao.7fli
and that If tbe •ame was not pali am the Stfa of
August, then tho property should belong to tli«
said Fort ft Story without any sale.* But tber*
Is no clause by which *he should be dis- [*S&3
charged from tbe payment of tbe sum so bor-
rowed as aforesaid, whereby he would have been
liable to the payment of the sum so advanced in
case the property had fallen in value; and tbe
bill states that on the 5th day of August, abov*
mentioned, the said Fort &, Story demanded. In
a notary, the full aum of «27 330,76, which in-
cluded the charge of $000 for auctioneers' ootn-
miasiona for selling, although no sale had taken
place, and alt the other illegal eharges abova
stated; and on nonpayment protested for dam-
ages and interest on the said sum, therebr
sliDwiiig their intention to hold him responaibfa
for tbe sum demanded, if the premisca ahould,
hy any accident, become insufficient in Talue
to pay the same. Port Jt Story remained in
poBSeBfiion of the said premises untO the dea.tli
of the aaid John A. Fort, which took place
Bometime in the year IS2S; after his death the
said Benjamin Story took the whole of the aaid
property by some arrangement with the hrire
of the aaid John A. Fort, and ia now, and ever
ol whlcli payment tbe said teodor doth berebv
IraniCer anit Brt ovpr uoto tUe Buld [lurclinsers, all
bis rlglifB o( propei •■ -
Tbli done and pssBed. I
r office In tbe jires-
been fuM^v
■ tiavlDg pre
act atter tbe 3.
Blood. The co
(B)' Counter-I.eiter. Whereas, the said Edward
LIvlngHton, by act before H. LaverBPe, notsry
public. hBth Ibli day sold snd conveyed to said Fort
and Btorr. a certain lot of Kround. alluated on the
batture in front ot the Kauibours !Jt. MHrj, and
deslKnatPd ai lot No. 1, on tbe plat ChercoC. depos-
ited In tbe office of [he said Dotar.v. tOL;cther wllh
all tbe buildings and Improvements (bercon. for
the sum of Iwenly-flve tbonnand iloliara In cnah.
meanlDg ot (he parties (n raid deed of aa)e, that If
tba aaid Edwsrd Llvloe^ton ahall pay and re-lm-
burae (0 said John A. Furt and Beojamln Story,
tbe aforeaald Mum of twentj-Dve thousand dollara,
on or txfore the 1st day of FetiruBrv, 1S23. then,
and In that case, the aafd Fort and Story atlpulale
and bind themaelvei to reconvey tht! said property
above described, to said Tdward LlvlnKston. And
In ease of nonpaTment of tlie sold sum of tneuty-
llve tbouBand dollars, on or liefore the day aa above
■tipulated. then tbe aaid Ft
a.SKi-ei - -
nobllc auction, by one ot the licensed anctloocera
ot tblB citi, after twenty dnjB" public notice, on
tbe (ollowInK lernia. to wll : twi^nt.v -Ave tbouasnil
one and two years: the purchaser giving Htlafac-
tory Indorsed notes and (peclal mortBBge on the
property until Bnal pajmeot. The said residue,
after deduction tue co!ts rtiPDrtlni ihe aale, to be
delivered over to the said Edward Llvlniaton.
And the EBld Kriward LlvlnK"ton, on blB part,
having taken cocnluBnc* of (hla apreement. de-
clares bImseIC to be peifectl; satisfied and content
ed tberewitb, and glvna bis full --■" ' —
the
of SI
I (he e
■Hpulatcd.
(C) Agreement with Jnbn Rust. It la bereb;
ureed. between Edward Llvlngaton and John
First. That the lald John Rust enpagea, for tbe
nrlce berelDsfter menllooed. to flnlab the sixteen
Storer now commenced and hroujtht op to the
Round floor, situated at the eornera at Tcboap-
Itoulaa. Laves and CommoD Btreets, accordlDK 10
fad of I
■torles high, to be covered la terrass. The whole tv
be flnlBhcd by the lat day of November next, la a
H'orkmanllke manner; and all tbe materials, ex-
cept those already provided, to be found by tka
And (he said Edward I.lvlDgaton agreea to pay Is
tbe Bald Jobo Rust eight thousand dollars. In
weekly payments ot all hundred any Blitr-Blx dol-
lara each, during the progress ot the work.
And the saliT John Kust declares that be r»
nounces any kind ot claim or prUileBe upon Um
^Id building beyond the said eight tbouaand 0^-
Know all men by thi
Livingston, for mvnelf
hereby transff
John A. Fort
tafued : and .
s. that I, Edward
and assign tbe within contract to
nd Benjamin Story, they comply-
present, con-
., .._ epta Ihe saM
John A. Fort and B. Btory, In tbe place ot ECdwattf
Livingston. Dated ZSth of July. 1R^2.
I do further BRree to allow the said weekly pay-
ment of sit hundred and aiily-sli dollars to be
charged to me. rendering myself responsible tor tbe
proper employment thereof, by the said John Rust.
1. — "Agreement between Edward Livingston, and
John A. Fort and Denjamtn Story, of tbe other
part, aa follows :
-Ist. The Bale of lot No. 1, on tbe batture. with
the tiulldlngs thereon, to ba poatponed until the 2d
Ifd. On that day It shall be sold by kTCoy and
...1 — -jdeemed. after being ad-
and the Orleans Gautte, In English, ^rom the
'■4rh. The oierpluB. after deducting the cash
paymrnt. Is to be delivered to Edward UvtDgxtw.
'•5lh, The counter- letter, ««cnted by Mesara.
Fort and Story, shall be delivered op, and tbe reg-
latry IbereoC annulled, immediately after the sig-
nature of thia aereement. made by duplleatea, tUa
4th day ot March. 1823- ^
2. — Id the city of New Orleans, State at loiiM-
ana. oa lbs Zd day at June, I8S3. the t»fti^
seventh year ot tlw Indepandancc ot the tinttet
Petcra It,
IdvutmTON'B ExEcuimu v. Stoit.
and tb« bill charts that the mid John and
BcDJainin, in the lifettme of the laid John, and
the aaiil Benjamin, after the death of the said
jdai, hare KMired the rents and proflte of the
•aid propert7, to the amount of at least $S0,-
000; and that the oomptuinant la advised, and
belierea thnt he hai a riglit to ask and re-
eover from the aaid Benjamin Story the poa-
aeation of the aaid property, and on account of
SBR*] the rents and 'profits thereof, the laid
conveyance of the same from jour orator hav-
ing been made on a contract for the loan of
Money, and althou|;h in the form of a aale, in
reality only a pledge for the repayment of the
Mma; the act by which he a((reed to dispense
with the sale being void and of no effect in
taw.
The bill also prayed, "That an account may
be taken, under the direction of this honorable
Minrt, between your orator and the defendnnts
to this bill, in which your orator agrees he
ihall be charged:
'lit. With auch sum aa ahall be shown to
have been advanced to him or paid on his ac-
eount under the loan made to him on the 2Sth
day of July, 1822, with the interest which lie
agreed to pay, of eighteen per cent, per annum,
to be calculated upon each advance from the
time it was made until the 6th of August,
1S23, and alter that time at legal interest.
*^. With all reasonable expenditures judl-
donsly made and incurred by the said John
and Benjamin, in building, repairing, and sale
keeping of the said property, and that your or-
ator be credited in such account with all such
(ams as the said John and Benjamin, or either
of tliem, have received, or might, if they had
need due diligence and care, have received from
tba said property; and that, io inch account,
the rente and profits be applied as the law re-
quires: firatly, to the payment of the sums nee-
•ssarily incurred in building and repairing; see-
Ondly, to the payment of interest on the sums
whidi shall appear to have been advanced on
the said loan; and, thirdly, to the discharge of
the principal of the aaid loan.
"jIm that If, on said account, It shall appear
that there is a balance due him, as he hopes to
b« able to show will be the case, that the laid
Benjamin Story be decreed to pay the same to
him, and to surrender the said property to him;
and that if any balance be found due from the
eoroplainant, that tbe said 8. Story may ba de-
creed to deliver thp said property to him, em
bis paying or tendering to him the said balaoMi
and Ibut he may have sucli other relief as the
nature of his case may require. That he, tha
said Benjamin Story, in bis own right, and alio
as executor of the last will and testament of the
laid John A. Fort, or in any other manner rep-
resenting tbe estate of the said John A. Fort,
may be summoned to answer this bill; the com-
plainant averring that he ia a citizen of the
State of New York, and that the said Benjamin
Story is a citiien of the State of LouliliiDa, and
now residei in New Orleani."
'The protests, made at the request [*3Bt
of John A. Fort and Benjamin Story, on tiie
nonpayment of the money stipulated to be paid
by Edward Livingston, on tbe Ist of February,
1S23, stated that on that day the notary had re-
quested from Edward Livingston, payment of
the sum of twenty-live thousand dollnrs. and
was answered that "he could not Immediately
pay the sum due to Fort A, Story, but that he
hoped soon to he able to do it." The answer
to the demand made, stated In the protest of
the eth of August, 1B23, to have been given
by Edward Livinf^tou waa, "that owing to
the very extraordinary scarcity of money, ha
was prevented repaying the money he had bor-
rowed from Messrs. Fort & Story, at this time,
but was willing to allow them the same inter-
est, at eighteen per cent., with good personal
security, in addition to the real property they
now have, for the reuewat of the obligation for
six months."
On the ITth of February, 1831, Benjamin
Story appeared to the bill, and demurred to tbe
same; alleging for cause of the demurrer that
the cose mode in the bill was not such an one as
entitled tbe claimant, in a court of equity of
the State of Ixiuisiano, to any discovery touch-
ing the matters contained la the bill, or any
otner matters, nor to any relief; and that by
complainant's own showing in tbe said bill, that
the heirs of John A. Fort, who la therein
named, is a necessary party to the laid bill ; aa
much as it is therein slated that all the mattera
of which he complains were transacted with
this defendant and John A. Fort, whose wid-
ow, the present Mrs. Luzenburg, ia tha aola
heir and residuary legatee.
The District Court sustained the demurrer,
and dismissed the bill, on two grounds:
Btatea at America, before Hr. Hughes Lavcrsnc,
■otarv poblle. dolv commlssloDed and qualiaeir In
and Ar tbe Cin and parliD of New Orleani. resld-
tor therein, bpo In^ the prcavDce of th« nndersiitned
A. VOrt and Benjamin Storj. of this clt7. mer-
ekaatL ot the other part, which aaid appearaoces
"""' befDg tbe da* aareed on by con-
Iwarf LtvlDiston and tbe laid
>«n auu Dti>[7, lor Ihe sale, at auction, of lot Na.
L aitaated on tbs battnrr, to front ot Fanxbourg
A. Uary ; and the said Edward LIvlDnton bavlDg
MQDeated that said uie inlgbt not taEe plact^ lor
Us awn aeeamicodatioa, the raid Fort and Starr
have axreed to the seld Llvinsston's request, on
tha tolIowtDc co&dltlona, to wit: that on or Ixfore
tbe eth daj ot Aucnat, he, tha said LiTlaciton.
shall pay to tbs said Fort and Btory. the whole
^Mvat of the eoasideratlOD monef paid liy them
far Oa said lot. that la to say, tbe sum ot 27.830
Mlara 70 eaata, and alwi any otber anm they may
t the
Hid
Inn to revert to the said Livingston, and to be-
come his propeny: and la caw the said Llvlag-
ston ahonld rail, on the day alwve mcDtlooed. to
wit. the 6tb day Df Aucuat neiC. to pay to the asld
Fort and Story the lums above specllled. then and
._ .._. .,._ „... ... ^|,b ,|j [h, buildings
cancel all a — „ -.
meat. In relation to said property, that mij give to
hlni any equity of redemption or other right to the
Bald, thai said It
a lot and bulld-
:. on the day.
n. ana jenr augre wtiiibd. lu iiie presence Of
, Dndunea, Janlor. and Charlee lanln. wit-
neSKi. residing In this city, and reqaeited to he
f resent, who, together with the parties, signed
bis act, as well "" -■■* — *"- "-
Sumiu CouBi or the Uirnn Staxcs.
Irt. "That tlila li not a suit that can be
■Mlntainod tn lU pm«nt laim, in a eourt of
tlie United Statis. (ittinp in Louiaiana."
Sd. "That a material partj ii omitted in the
bai."
ThB complainant appealed to the Suprame
Court, anJ at .lanuary IVrm. 1835, tiie iletree
of the District Court wa* raversed, and the
ease remanded for futher proceed in(td. 'J
Peten'a R. 632. On the 16th of December,
IBSS, Benjamin Story filed in the Diatrict
Court of Louisiana, an answer, on oath, to the
original bill, in wliich he lays that lie doea not
admit, but if it be the fact, requirea proof that
the complainant is a citizun of the ^tatc of New
York, that at the time of the transaction meu-
Uoaed in the bill, and for a long time then--
after, he waa a citiaen of the State of Louisiana,
and one of her arnators in the Senate of the
United States; and if he has ceased to be a dt-
SOO'j iien *of that State, the defendant Icnowt
not when or how, and calls for the proof.
And thia defendant further answering, aayi
that he exprcBsl; denies that on or about the
26th July, 1822, that he and John A. Fort
agreed to lend to the cnmplainant the sum of
twentj-lwo thousand nine hundred and thirCy-
ala dollars, or any other num.
That he expressly denies, that at any time,
either jointly with the said Fort, or this defend-
ant separately, ever agreed to lend to the Mid
complainant any sum of money whatever, as
alleeed in the bill oF complainant.
That 10 far from there having tieen any loan
intei:ded by the parties, this ilpfpndant states
tliat the negotiation for the sale of the said lot,
BommeDwd between John A. Fort and Nathan
Uorse, Esq., since deceased, the latter acting
for the said complainant; and that one of them
informed this defendant that the complainant
wished to raise money on mortgage; but this,
defendant peremptorily and expressly refused
to advance any money whatever to the com.
plainant on mortgage. That during the prog-
ress of the negotiation, the complainant having
learned that the defendant waa to be interested
in tlie purchase, and was to make the principal
Kyments, mentioned to this defendant that
would prefer obtaining money by mortgage
on the property, rather than make a Dale of it;
and this defendant again repeated to him his
refusal, and inaisted upon a sale being made to
As evidence of the understanding of the par-
ties, and of the real nature of the transaction.
eertain ooramuni cation* which hsd been ad-
drcated by tlir- ailrpil .i-zeni of .Vlr. I.ivin;{aton
to John A. Fort and Story, were annexed to
the answer.-
SAI*] 'The sale was agreed to, and an Act
was passed on the 26th of Jiily. 1^23. oontnin-
Ing the clause of non enumerata p<-cunia. The
auwer refers to the different documents whicli
1.— To John A. Fori. Eiq., Present.
I. John A. Fort and Story wMI obllire Mr
■ r sendlDE In writing, (heir deitoltlvi
(on bT t
that is—
a appropriate tonardt:
■ale of tbe lol anil bul dlacs free [rom a
brasces, and a trauilei oE Che contract, a
ISO
have bean atat«d, and refarrad to tu tha acm-
f lainant's ease.
The money not being repaid, aa was provided
in the counter letter on the 2d of Febniaj^,
1823, no sale of the property was made hy ftm-
tion, because of the rMjueat of the eampl»iB-
ant; and on the 4th of March they made >n-
othar agreement (note ante, paae 35S) by whieb
thay agreed to postpone the sale of the proper-
ty until the 2d of June, iaZ3; and the said Kd-
ward Livingston, in consideration of allowing
him such additional chance to repurchase th«
said lot and buildings, or obtain some peraoB
to purchase it, agreed to pay to them a oom-
pcnsation therefor, as is in said agreement stip-
ulated; and in this agreement it is covenanted
between the parties, that the counter letts-
should be annulled and given up, so that there
then exiated between the partiea the abaolut*
bill of sale, and this stipulation of ith of
March, ISZa And finally, the Zd day of June,
1B23, having arrived, and Edward Livingston
would not pay the price of said property, nor
was there any offer therefor, and at his request
an agreement waa entered into before H. T^-
vergne, a notary public, whereby the said Ed-
ward Livingston requested that the sale might
not lake place for his uccummoilation, and the
■aid Fort tt Story agreed thereto, on the fol-
lowing conditions: Thai un or liefore the lat
day of August, 1S23, the said Edward Living-
ston should pay the said sum of twenty-seren
thouaand eight hundred and thirty dollars and
seventy -six cents, and any further sum by
them expended for the care and ptesiTvation
of said property, and that then the said lot and
buildings were to become the property of said
Livingston; and in case the said Livingston
ibould fail on the 6th August, 1823, to pay t«
the said Fort & Story the sums above specified,
then the said lot, with the buildings thereon,
were to become the full and absolute property
of Fort t Story, and the said Livingston en-
gaged thereupon to surrender and cancel all
and every writing or other document in relation
to said property, that might give to him
any equity of redemption or other right to the
said premises; it bein;; in said net uxpresaij
slated that it waa the true intent and meaning
of the parties that in the cace of failure of pay-
ment as aforesaid, that said lots, with all tba
buildings and appurtenances to the same be-
longing, are to vest in said Fort &. Story a full,
free and absolute title in tee-simple forever.
*Thc answer denied that at the time [*3«a
of the purchase the property was worth mor«
than the money Fort S, Stor; paid for it, and
that any loan of money was made; but it was
an absolute sale, with power to redeem, which
was twice extended to tne complainant, and was
6nal)y closed by the last agreement; and on the
Gth of August, 1S23, a demand was made, and
payment refused; whereby all clauses of re-
demption were annulled, bj article* 93, M, of
. ... _._ _.. 12 o'clock, tor tbe purpoac *t
oiD[)lellDE the arrani;einenta for the battiirr.
(Slcoedt N. Morse.
Fildar. 26111 July.
183T
Il\INt.RTOK'S EsKcimu V. Stoit.
the "rt th^D in fnrM In Lautfliniia, and th«
property hecnm^ alisolufely and irrevocably
the propErtj of Fi>rt A Storj.
'riH> answer hIhx denieii thnt thp property haa
become a* valunble aa it rcprewnted by the
coniptninant ; and it Htates that on the 10th of
Uaroh. 1S32, ha, the reapondcnt, hy a punhaae
from itie widow of Ji))iii A. Fort, notr Mrs,
Liuenburg, b«<'ain« the owner of the moiety of
the property which bui belonged to Joha A.
Fort, for which the sum of fifty thousand dol-
lar* was to be paid. A liability by Mra. Lnaen-
eaae of evict'on, it al1fg«d to exist under tiie
laws of Louisiana, and that tlie purchaser hne a
right, under those inws, to call on the vendor,
to assist in his defense; "and the respondent
•nbmita to the court whether, by the proceed-
ings baring been instituted in the District Court
of the United Stntes, Mrs. Luienburg is to be
precluded from claiming and defendinj; tlie
I'wn^rship, when, being vendor, she Is intereated
!■ tha case."
The answer prays s citation to the widow of
John A. Fort, who intermarried with Dr. Lu-
■raburg, that tbey may appear and defend the
•ale, antl abide by any decree of the court.
To the answer is annexed a stotement of the
moneys paid and received, on account of the
estate, by the respondent and John A. Fort.
Tbe sums paid for the estate from Jnly ES,
IB2Z. to May 87, 1827, amounted to fifty-one
thousand five hundred and thirty-seren dollars
and twenty cents, the interest at ten per oent.,
which is twenty-sii thauiiand two hundred and
■ixty-one doltnrs nnd twelve oentsj totrtl, ae*-
entv-aeven tbousand seven hundred and ninety-
eisht dollars and thirty-two cents; the •mms re-
ceived up to January iS, 1829, amount to twen-
ty-nine thousand seven hundred and five dol-
lar* and sixty-nine cents — interest seven thou-
sand and seventy- three dollars and eighteen
onitB. Total, thirty-six thousand seven hun-
dred and saventy-eight dollar* and eif(hty-seven
eenta. Tbe answer claima tbe benefit of the
preacription of tive or ten years, under the laws
of Iiouisiana, aa constituting a bar to the suit.
I«S*] 'Afterwards, on the Mth of March,
183fl, the defendant filed an amended answer,
■tatinft that Mary C. Luienburg, the widow of
John A. Port, deceased, had, since the filing of
the original answer, set up a claim to the moie-
ty of the estate in controversy, and had insti-
tuted a suit in the Judicial District Court of
the State of Louisiana, against the respondent,
for the purpose of vacating the contract by
which he tiecame invested with a title to the In-
terest of which Fort died possessed, and to ■«-
sorer tiM same from him; and at the elaln la
not admitted, but In the event of the suei-,»«s
of the appellant, she and her husband would be
liable to tbe respondent, and consequently the
rights of the respective parties could not be
fiiily, fairly, and finally decided, unless Luieu-
bnrg and wife be made parties to this suit.
Tbe amended answer prays they may. by the
mmplainant, be made parties to the bill.
A eupy of the bill of Mra Luzenburg to tbe
Jndce of the Dintrict Court of tbe First Judicial
District of tbe Stateof I^uiqiana, ia annexed to
the amended anawer. It alleges a sale of the
moiety of the property which belonged to John
A. Fort, to tuiva beea made to Beajagsia
Story, on the IfHh of March. 1832. for ilfty
thouannd dollnr*. when In truth and in fael
the anid moiety waa worth one hundred tbon-
sand dollars.
The testimony of two witnesses waa taken in
open court. Hughes Lavergne, the notary he-
fore whom mony of the documents in the eaae
had been executed, dep-ised, "Mr. Nathan
Morse came to faia office accompanied by
Mr. Story, at the period named, for ths pnr-
pose of making the sale above referred to. Mr.
' Morse appearnl in this transaction to be the
legal adviser of Measrs. Story and Fort; at thi*
time Mr. Livingston was and had been for some
time a member of the New Orleana bar, of
grent practice and celebrity, and tt was not
probable that Livingston would employ a law-
yer to advise him.
Cross-examined by the defendant'a counsel to
' the queation, if deponent does not know that
Mr. Morse was the financial agent of Mr. LI*-
ingstooT He answer* that he doea not know
'that he was.
Money was very scarce in New Orleans In
1822.
I "B. Loekatt, Esq., the agent of Mr. Living-
ston, drposed, that tbe complainant bos not
! been in Louisiana since 1820; that he hse writ-
I ten to deponent often, (hat be bad c'langed hit
I domicile to New York; he has property thm
: and votes there.
I "Cross-examined: deponent states that Mr.
Livingston was the 'senator from Lout- [*S(4
siana until the year I83t. when he was appointed
Secretary of State at WaabinTton; it waa then
that Mr. Livingston changed his domicile to the
State oF New York; deponent never aaw Mr.
Livingston in New Yorlc, as he has never been
there; but he has received tetters, and still re-
ceives letters from E. Livingston, dated and
postmarked New York."
On the 3d of June, 1838, the District Court
made a decree that the bill of the complainant
should be dismissed.
The complainant, Edward Livingston, hav-
ing died, his executrix was made a party ta
t\x proceeding*, and she prosecuted tnis ap-
Tbe ease waa argued by Mr. White for the
appellant, and by Mr. Crittenden and Mr. nay
for tbe appellee.
Mr. White, for the eppelUnt.
An attempt li made b^ the appellee to raiae
up a aueetlon nf jurltdiotioD In this case. If
the rignt of Mr. Livingston to sue In the Court
of tbe United States in Louisinna, resting upon
his having been a citiaen of that State when the
suit was commenced, is contested, the exception
should have been presented to the District Court
of the United States In Louisiana, by a plea to
the jurisdiction. Proof could then have been
regularly given that he became a citixen of
New York in IS31, and continued such until Us
death, in 1836. Proof of this Is in the reeord.
The whole of this attempt is made to eover
the real character of this transaction; and it Is
sought to make it a sale of the property, and
not a loan, aa the penalties of usury are heavy
under the laws of T.:OulBlana. The fncts of the
case show that It wss a loan by John A Fort
and Henjamin Story, to Mr. Livingston; of
this the court will be fully satisfied.
Nothing ia so eommoB under tha dvfl law. as
SOFRKHB COUBT OP TBI UKITBI STATM.
18«7
the t
to iDAke a d«ed of kbaolute transfer of Teal
wtate, and to take a.n ■ar^m'^nt from the lend-
•r of the money, to secure whom the deed is
made, which is called "■ counter letter." This
n advantage to the borrower; it put* him in
'n of the evidence of the re^ nature of
the deed of conveyance. The counter letter ii
the contract between the partieB. In this code
It contradicts the answer of the dofendflnt to
the plsintilT's bill. He snys it waa an abtaluta
■ala of the land. That ia entirely disproved by
tha counter letter. The counter letter showa It
»I6»1 was n.-l n wlf, hut *a loBn on the seen-
rtty of the real estate; and the Inw of LouUIana
takei charge of the borrower, and will not al-
low him. under the pressure of his dilT!cultiei,
to surrender the protection the law gave him.
A aale by an auctioneer, or a judicial sale, ia re-
quired; and this the borrower cannot relinquiah.
The purpose of the lenders was to embarraas
aa they ought to have been ;
or, Ruit, should have been obliged by Fort A
Story to complete them; they having an assign-
ment of the contract for their completion.
Nothing was done by them. Had the contract
with Rust been insisted upon, and the stores
completed, ample means to pay the whole sum
borrowed would have been in possessioD of Mr.
Livingston. The extravagant interest which
was made a part of the consideration for the
loan would have been fully paid, and this most
willingly- The appellant has no wish to eaeapc
from the payment of that interest, and he ha«
Instructed his eouuael not to aek anything whicli
will prevent ita allowance, aeoordlng to the
The propertj, at the time of the transaction.
was far greater in value than the amount loaned
by Fort &. Story. In 1832, it was worth one
hundred thousand dollars. It Is now of much
greater value; and all the appellant asks, is
that she may be allowed to repay to the lenders
all they advanced, all they expended, and the
UgtX Interest on the amount since the debt be-
came payable; taking back tbe estate, and bar-
Ing the advantage of the proceeds of it since
that time. No injustice will be done by this
aettlement, and all parties should be satisfied
with it.
This was not a conditional sale of the prop-
erty by Mr, Livingston. It waa a pledge of real
•atate, which cannot he enforced by a sale
of the pledge without a judicial proceeding.
This is what. In the civil law of Spain, ia called,
"aotiehresis."
The oode of law prevailina in Louisiana is
difflcult to be understood. It has grown up
■Ince the first establishment of the province,
brtginally it was adopted by a proclamation of
Oovemor O'Riley, in ITSB; and waa afterwards
eonflrmed by the King of Spain. This was
"The Corpus jure Civilis." and the 'Tartidas,"
and 'The RecopIIaeion de leyea de laa Indias."
The French inhabitants of the province became
dissatisfied, and the "Les Coutiimes de Paris"
weN declared to furnish the rules of practice;
tbe principles of the eatablished laws to remain
la full foToe-
S«a*1 *This was the sUt« of things when
Ue United SUtM MOjolnd the torrit«vy. and
fS«
great erabanaaamanta arose oa the Introdaetlaa
of the prorisiMS of the laws of the United
States, and the forms of proceedings under tba
same. A code was prepared by authority of
the Leeislatura of the State, which is called
the civil code, and Is in most of its provisions
the code Xapoleon; and allows the Spanish
laws to prevail in all cases to vhich they wiD
apply.
By the civil laws of Spain, the transaetioB
was an antichresis; and by these lawi Mr. Ut.
ingston was to be treated as a minor, and eould.
bf no BOt of bis, chan^ the contract, far leaa
dissolve or annul it. Civil laws of Spain, trans-
lated by Johnson, 149, Ifiifl. "A pledge must
be sold by some judicial process. The right
of property in a pledge cannot be transferred,
except by some Judicial proceeding, whatever
may be the stipulations between Uie partiea."
lb. 159. The counter letter stipulate* that
the surplus shall go to Mr. Livingston. Civil
Code of Lo. article Pledge; tit. S, art. 3I(Mli
In article 3143, Civil Code of Louisiana, will
be found the regulattona relative to nnremora-
ble pledges, called antichreees; and article 3146
declares, that any clause which passes th«
property of a debtor on a feJlure to pay, is in-
operative and void. At common law, the
mortgagee may become the owner of the prop-
erty by a release of the equity of redemption;
but the civil law does not allow this.
Mr. White then read to the court an orgn-
ment prepared by Mr. Hunt, of New Orleans,
who was the counsel for Mr. Livingston, in the
District Court of Louisiana, to show the char-
acter of the loan, by the laws of the State of
Louisiana, derived as they are from the laws
of Spain and of France; and contending, that
by the provisions of the law, the property waa
pledged, not sold. Cited, 4 Kenfs Com. 135,
136; Civil Code, 3S2, ch. S, art. 01; Ibid- 344;
Z Ves. 405; Foth. gale, art. 3S2; 5 Mass. Bep.
109; S Wheat. 489; Civil Code, 440, Tit. Pledge,
art. 2S; la Spirry, 20; 13 Ibid. 223; 7 Ibid.
872; 1 Martin's Rep. N. S. 417; Civil Code, 40S,
art. 12, 13; 2 Martin's N. S. El, 24.
The authorities referred to In this argument
show that the whole transaction was one pro-
tected by the law.
The protests which Fort & Story made OD
the nonpayment of the sum borrowed, weia
intended to destroy the credit of the borrower,
and thus prevent his obtaining from other
sources the funds required for ue redemption
of the property.
■In the case cited from 2 Martin's [*3ai
Reports, (f. S. 21, 4, the court will find the
opinion of Judge Porter, showing that a right
to land pledged cannot be acquired without
proceeding;
i rights of tl
} all
to destroy the rights of ths original owner of
the property will be of no avail. Once a mort-
eage- always a mortgage. Cited, 4 Uiller^
La. Sep. 3, aa to the nature and affect of s
counter letter.
Mr. Crittenden, for the defendant-
This is a suit In chancery which has heret«-
fore been before this court. After it was re>
manded. tbe Louisiana court proceeded to en-
force the decision of this oourt. The defendant
Hlpil his answer to the comolainant's bill, la
which tbe complainant replied, and the cans*
WH tried on Its inerita, and the court dismlaaid
PstOTS II.
1837
idVmaSTOfl'B iCZXCUTBIX T. BlOBT.
UT
tb* bfll with eosU, from wbidi this appetl is
prOMcuted.
The caw Kttcmpted to be tnsda out bjr tbe
oomplainant in his bill, ii, that he made ft loin
of toe defendant and a eertain Fort, waa to
give them an exorbitant intirpst, and, aa a ne-
eurity for the repayment of the money adTnnoed
to him, that he conveyed the lot, which is tha
■object of controversj, in New Orleani, In
mortgage.
On the contrary, the defendant denies, piT-
emptorily and positivelj', tbat the transaction
was a loanl and avert that he and his associate,
Mr. Fort, absolutely refused to make any loan
to the complainant. He denies that the con-
rajance of the lot in dispute is a mortgage.
Ha alleges that the lot was purchaicd by him
«nd his aasociote of Uie cuiiip];ii!iuiit. witli a
privilege tecnred to him of repurchasing it by
* given day. That this privilege, although
extended from time to time, was never oicr-
eiaed by him; and that the lot, therefore, be-
came the absolute pioperty of the defendant
knd hia associate.
The whole eontroversy. so far as the merits
mn concerned, turns upon the fact whether
the parties to the transai^tion intended a sale of
the property, or a loan, and the conveyance of
the lot a« a aecurity for the re-imbursement of
that loan.
The complainant sues as a eitlEen of the
State of New York, and the defendant dcnits
tb»t he waa a citizen of that State at the time
of the commencement of the suit. The proof
attempted un this point by the complniiiiint i«
irrtguiar, and not to be regarded. With the
exception of that testimony, all the evidence
U documentary. The transaction originated
In an absolute eonveyance of the property,
S68*] 'with a leparate instrument, called a
counter letter, botli under date of the 25tli
July, IS23; and by their temu It was to have
been consummated on the 1st of February,
1823; but at the instance of Livingston, and in
virtue of ttew agreements, materially vnriunt
from the first, thia consummutiun was deferred
to the 2d of June, and then to the Eth of Au-
gust, 1823. By these new agreements, the
conater letter of the 2Sth of July. 1322, waa
ftnnulledi and it waa finally settled between
the parties that if Uvingston ]iaid the sum
specified on or before the sail] 5th of Aueunt,
1823, the property should "revert to said Liv-
ingaton and become his property;" and that if
ha should fail to pay by that day, then that
•aid lot and appurtenances to be the "absolute
property of the aald Fort A Story;' the said
LlTingston to mrrendcr and cancel erery
■ I Hm
,. t to the
I intent and
I the partief' that, in ease of the
railiire of pavment, etc.. the said lot and ap-
Sartenancea "are to vest in the aatd Fort ft
tory a full title in fee-almple forever."
Tlw main question in the cauae tnma upon
tha law of Louisiana, where the dvil law pre-
TaOa, and where they have no code of equity,
nor of oommon law, except as it haa been intro-
dneed, in a yery limited extent, since the an-
nexation of Louiaiana to the United States.
I. Tbe first qneation wHl be as to Mr. Llv-
Ingaton'a right to maintain a rait in thu District
Court of the United Slates for Lonlalana.
Should that be decided aflirmatively, the
2d, And most i III port ant qneation Is, waa the
original transaction between the partiea the
case of a loan, or of a bona tide sale t
3. A minor question may arise as to the pa-
rol testimony admitted, contrary to the usages
of courts of equity, at the trial of the suit.
It is denied that the court bad juriBdictioa
of the case, as Mr. Llvinj^ston was, at the time
tbe suit was brought, a citizen of Louisiana.
The answer denies his citiTcn^hip, and the
proof whii^h was given on the part of Mr. Liv-
ingston, by no means shows he bad eeaaed to
^ belong to Louisiana.
The appclleea hnve full right to raise the
' question of jurisdiction here. Jurisdictloo
was denied in the District Court, and evidenee
K'ven upon the question. The court will
ok at that evidence. If there Is no juriadlc-
I tion, the court will dismisa the cause. Having
•been brought into question, and the [*36S
I whole of the testimony appearing which waa
given to establish it, this court will consider
the point as regularly before them. Cited,
Brown v. Keene, B Peters, 12E.
It is known that when Mr. Iilvingston be-
came the Secretary of State, he waa a dticrn
I of Louisiana. While at the city of Waahing-
I ton, he could not acquire the right of a citinen
in any other State; although it is admitted that
a residence at WasbingLon in tlic public senr-
ire, could not alTect his citizenship in the
Slate from which he came. He could only
become a eittten of New Yorlc, by actual retl-
denoe there; and this did not take place until
after he filed the bill in thia case In the District
Court of the United States for the Eastern Dia-
trict of Louisiana. As to juriadiction, cited,
4 Cond. Hep. 127, note; Brown r. Keene, S
Peter
125.
The sppollee. In this case, ti protected by
iimo. This suit was not brought unlil ten years
after the transaction between the parties waa
closed. Civil Code of Louisiana, 302. Tbe
>Ulegation of the operation of the Act of Limita-
tion is Id the case, and the court will regard It.
Upon the merits of the case, the question will
be whether the arrangement between Mr. Liv-
ingston and Fort & Story was a sale of the
property, or a pledge. The appellee asserts it
to have been originally a conditional aak,
wliich afterwards was made absolute by Mr,
Livingston, who had a perfect right to make it
The provlaioTu of the civil law, and of the
Louiaiana code, which have been referred to
by the eounael for the appellant, apply to mort-
gages. If this waa a case of mortgage, then
tbe ability of the mortgajjeor to chancre it. and
relinquish hia right to have a judicial salt of
the property, may exist.
It Is difHcutt, under the common law, to dis-
tinguish between a conditional sale, and a
mortgage. What this ia must be decided bj
the code, and by the decisions of LouixUna.
The counter letter speaks of the deed from
Ur. Livingston as a conveyance, and the recital
admits the transaction to be a aale. The pur-
pose of the counter letter waa to aeenre a recon-
veyance.
If the civil law allowed Hr. Livingaton
tbe ability to .cancel the oonnter letter, tbe evi-
SUFBBMC CODBt or THE UNITED tJTATCS.
18»
denoe to shoif that be did lo, And waived bia
right of redprnption, in canfluaive. The au-
thoritiea cited by the counsel for the appellant,
apply to admitted inort|;agrB; and they have
no application to this transaction, which never
370*] was a mortgage. 'But it it bad been
fuch, still the right to release the equity of re-
demption existed; and under the civil law, that
right may, by agreement, be extinguished.
Civil Code of l^uisiana, 47:>.
The CiTil Code of Louiilnna of 180S waa In
force when this traniiactinn took place. The
provisions which apply to it will be found In
pagea 341, and In 272, 274. The contract eomra
within the definitions of a conditional sale. In
the ariieles referred to. A sale is where one
ai[reea to give a thing or property for a par-
ticular sum of money. This was a sale, but
subject to an expressed conditinn, which sus-
pended its operation for a certain time, within
which the vendor had a right, expressly re-
Mrved, to cancel it.
The [laper; all show it was such a sale. It is
nowhere called a mortgage, or a security for
money loaned. The counter letter does not
mntain an engagement to repay the money re-
ceived from the purchaser of the property.
The deed is absolute. The only stipulation is
that of Fort &, Story, to rcconvey the property:
but there is no obligation on the part of Mr.
Uvingston to repay the money be had re-
ceived. It is essential that there should have
been such an agreement, to constitute a loan.
Both parties, in the case of a loan, are bound;
one to receive the money, when offered, the
other to repay it. according to the agreement.
It would be vain to search for such provisions
in the instruments executed by the parties.
They import anything but such an arrange -
But If, originally, it waa not a sale. It after-
wards became such. The surrender of the
counter tetter, nnd the subsequent agreement of
the parties, converted it into an absolute trans-
fer of the estate; and this, after all the indul-
pnce which Mr. Livingston ha^ asked, had
been fully conceded to him. The postpone-
ment from the 4lh of Mardi. la->S, wns made
at the instance of Mr. Uvingston, and on en-
tering into the agreement; which, after a fur-
ther postponement from June to August, in the
same year, he terminated, with his free and
full consent, gave up nil his right or clafin on
the property. The rights of Fort & Story
thereby became absolute and irrevocable.
It is contended that although this agreement
was made, yet by the civil law It was of no
avail, and was void. If this is not the law,
then the agreement must have full effect. The
court must be satisfied that this Is the law of
Louisiana; and unless they are *o satisfied,
the decree of the District Court will be «f-
The authorities referred to by the counsel
for the appellant. If they have any application,
apply to loans on mortgage, and they may
S1I*] show 'that, in case of a mortgage, such
agreements are void. They can have no other
application.
It is true that ono° a mortgage, always a*
iDort^n; but eertainly a $^^7 '"■J 6\''° *>P
his right of redemption. Code of Louisiana,
^72. Uort|jpigDi tnaj be extinvuiabed by
' paction or agreement. This Is a paction, or
I agreement.
By the original agreement between the par-
. ties, the property was to be put up to sale; Init
Mr. Livingston afterwards gave this up, oon-
; sidering that this would be more advantagaoua
than to offer the property for sale. Mr. Liv-
ingston was fully competent to do this; tind
yet It Is contended by the appellant that by
some law of Louisiana, the power to do so te
taken away.
If tbe transaction was a sale on oonditioa,
then it is not asserted that Mr. Livingston had
no power to malce it absolute. Tbe aril Coda
of Louiaiana is explicit to this effect.
The very form of a sale, on condition, Im
; been adopted in this case. The deed la an tib-
' solute and complete transfer; the counwr letter
declares the conditions of the sale. This, by
the civil code, is a paction, by which tha
vendor reserves the right to take back the
property; and in the instrument the very terms
of the law are adopted. May T not sell my
property on a condition that if I do not repay
the money named, the estate shall be sold by
auction; the proceeds of tbe sale to repay the
same, and I to receive the residueT This may
be done by our laws.
Courts of chancery have sought to make
such a transaction between parties more tlikk
they intended it to be; but tbe law of Louid-
ana will not allow this. Title Mortgage, art.
1, 452; art. 6. 462. Under the law of Louisiana,
no conditional mortgage can exist between
fiarties except that which is expressly stipu-
ated. None can be inferred from anything
tut the express agreement of the parties. Au-
thorities will sustain these positions. 1 Mar-
tin's Rep. New Series, 522, fi28.
Strong apprehensions have prsTailed 1b
Louisiana that in consequence of the decisions
of this court, in cases from the district of Loui-
siana, the laws of Louisiana are not to govora
the cases which may be brought here; birt that
they are to be decided by the chancery law of
other States, and by the chancery laws of Eng-
land. This is an error in those who entertain
such apprehensions. The courts of tbe United
States adopt the forms of proceeding In rhan-
oery 'cases, where they are bron;rht ['STt
into those courts, hut they will apply the laws
of the place to contracts made under them.
It has been said that the Civil Code of Loid-
siana is but a part of the law of that State, and
that they have there, in fult applieatton, the
corpus juris civilie, and tbe Partidas of Spain.
Whatever system of laws prevailed before
18DS, after that time the laws then established
alone prevailed. After that time we aj« not to
toolt to the laws (if Spain, or of any part of
the continent of Europe. In the formation of
the code then adopted, sucb of tbe proviaioM
of those laws as were approved were taken
from them; and Louisiana having a rigkt to
make her laws, did thus make them. No
other code now exists.
By the law then established, the tranaactln*
In this case was a contract of sale on cona-
tion; and the time for the performance of tbe
condition, is not, by the law, permitted to be
extended. After the time fixed, no redemptlm
can take place. Possession of the property waa
given when the sale was made, and baa wn-
183T
Liviicgstok's SxEcimiT ▼. Btoit.
371
ttnoed from tbat time. Tlili !■ itated Jn the
Ull. The possession ibowa the eh^ncter of
the arrangement, and proves that no mortgage,
but a sale only, was intended.
The fact that it was a loan ol moat^, and
not a sale, la asserted in the bitl; and in the
answer this is denied, and it ii asserted by the
respondent to have l>een ■ sate. No proof to
support the allegations in the bill is given, and
the facts in the answer are to stand until dia-
proved. This ia the rule in chancery.
But if evidence were required to show that
the negotiation was as represented bj the re-
spondent, it will be found in the notes which
were written before it was concluded. Jlr.
Mo^s asks what turn Port d: Storj will sive
for the property, to be redeemed bj Mr. Liv-
ingston.
The allegation of the increased value of
property is not supported by evidence. The bill
Ilea by the widow of Fort ia no part of the
ease. But whatever may be tbo present value
of the property, it can have no influeoce in the
Suppose the property was now worth one
half -.<t what it wiiei in 1823. could the rtapond-
ent apply to the District Court of Louisiana,
and after making a saJe at auction, claim from
the legal repreeentstives of Mr. Livingston, the
deficLeucy. This right should be found in the
proceedinps in favor of the defendant, or ii
cannot exist in favor of the repreaentatives of
Ur. Livingston.
t73*] *Mr. CUy, also of GOUnul for the ap-
pellee.
This case atnnda before tbe court under no
favorable appearancea. A transaction closed
in 1823, finally closed, without an expression of
dissatisfaction, and in harmony with the writ-
ten agreements between the parties, ia brought
ny ten years afterwards, and a claim is made
ti put aside all that was then considered com-
pleted. Mr. Livingston was in Louisiana for
many years after 1823, in New Orleana; aud
no suit was instituted by him to a*oid what
he had done, and no complaint made by him.
The situation of Mr. Livingston, his profound
legal knowledge, and his professional experi-
ence, gave him every opportunity of knowing
the import and effect of the instruments exe-
cuted by the partiea. On the other hand, the
purchasers of the property were I^oraut of
tbe law, were merchants, not knowmg the ef-
fect of thoae instruments. They took them
to be what they imported, and trusted to tbeni
upon the plain conatruction of their terms.
The first question in the eaae la, by what law
ia it to be triedT
The ease ahowa the high and august charac-
ter of this court. Accustomed to the rules of
the eonunon law, and to the prindplea and
practice adopted in courts of equity, they are
called upon, from a distant State, to expound
laws different from those which their deep
studies have made familiar to them; and a
knowledge of which, and their eminenoe as
jurist*, learned in the common law, and the law
of equity, have given them the high poiitkna
they bold.
The effent of the decree In thia case, when
It was formerly before the court, waa no more
than to give to the District Court of the Gaat-
•rn District of Louiaiana thtjtouy jnriadktion
over the cause. The pian of tbe Constitution
of the United States was not to create or apply
any laws in the States of the Union in the
courts of the United States, in cases brought
before those courts, other tlinn the established
laws of the State; but to give a ri;;ht to ad-
minister those laws in the caaes iefsally brought
before thoae courts. In eaaee brought from
any Btate to this court, the only power the
court has is to apply the laws of the State; and
in this cose tbe law of Louiaiana will be ap-
plied. It is essential to secure confidence m
the court that this shall alwaya be done.
In looking at this case, under the laws ol
Louisiana, toe court will find that there are no
laws which impoae penalties on usury; and al-
though the Civil Code declares the rate of in-
terest in certain 'cases, and in particu- [*Z7f
lar contracts, it does no more. These provi-
sions will not be Tilled up by penalties. .
It waa, in the District Court of Louisiana,
presented ou new pleading, and the facts as ex-
hibited in the defendant's anawera, in the con-
tracts betweeen the parties, and on the oral
evidence, are now, for the flrat time, to be con-
sidered by this court.
The question of juriadiction, from the citl-
lenship of the parties, was brought before that
court, and the evidence does not show that the
complainant, when the bill waa Sled, was a
citizen of any other State than LouUiana. Thia
court will now consider this question. If, ac-
cording to tbe strict rulea of pleading, under
the common law, and the prnctice of courta
of chancery, a plea in abatement should have
been flled, thia is not rci^uired by the civil law,
and it will not be now insisted upon. A sug-
gestion of a want of jurisdiction ia always id
time; and even if the principles applied in
chancery caaea, shall govern In the final deci-
aion of this cause, the practice of the courts of
the United States, in Louisiana, are by tlie acta
of Congress, to be conformable to the rulea of
practice in the State courta.
As to the merits of the case, all the allega-
tions of the great value of the property, are
without any evidence to support them. If at
tbe time of the transaction, the property was
of greater value than the sum the defendant
and Fort agreed to pay for it, thia could have
been, and should have been proved. No testi-
mony was offered on this subject, and tbe con-
clusion is, that such was not the fact. If after-
wards it became of greater value, it did so in
consequence of the improvements made upon it
by the purchasers, by tlie expenditure of their
capital upon it, and by the nae of property in
value from the great prosperity of the city
of New Orleans.
But if tbe value of the estate ia to be deter-
mined by thia court, and Is easential to the dia-
esition of the case, tbe court have evidenc*
fore them which entirely contradicts all the
aaeertlons of the appellant. The accounts
rendered by the appellee, show that no
proceeds of the property, which will justify or
Buatain the allegations of such value, have
come into his huids. This ia the best testi-
mony which the cose admits of, and the ap-
pellant has not attempted to contradict the
statements in these accounts.
The liberty of purchasing property, and tha
privilan of dispoainc irf it, are among tbe
^ 7ft»
1T«
Surasm Oaun or tbx Umm States.
ISST
MgliMt «e enjoj. Utj tlier not be axerdMd
S7B*] *in the nuinner which those who ac
quire or will dispose of property think proper,
«nd on aiieh terma u nay be agreed npon ?
M»j not « loan of money on property to-day,
be converted into » aale.to morrow for the
money borrowed) Nothing In tha laws of
Lontai&na to prevent thia has been shown, and
no auch proviaions exiat. While courts may
have looked into tranaaetions of thia kind with
4 jeslouB scrutiny, to prevent usury, they havi>
not claimed the powers to make void an abso-
lute aale, made by a peraon fully competent to
act, and who deliberately acted in making the
■ale; and thi« where no evidence has been of-
fered to ahow that the full vaJue of the prop-
erty sold was not paid. The whole argument
of the appellant aasumea that the transaction
waa that of a loan, and thia in direct oppoei-
tion to the other evidence In the caae. It aa-
aumea that It was a loan on the property by
Fort &, Story; and being aueh, the law of
Louisiana deprived the borrower of the right
to change the transaction, and make it a sale.
To support thia poaition, the law prevailing in
Louisiana has been referred to without aueceaa.
Mr. White, in reply, insisted that there was
evidence in the caae which fully proved that
Ur. Livingston waa, when the bill waa flled, a
dtiren of the State of New York. He be-
came a citizen of that State when he ceased to
be a senator from the State of Louiaiana; and
his residence in the District of Coltimbia, while
acting as Secretary of State, did not affect or
Impair hia New York dtisenship. He asked,
if an exception to the jurisdiction of this court,
on the allegation that the appellant could not
sue in the District Court of the United States
of Ixiuiaiana could be admitted, when it did
not appear that the question of cltisensbip bad
been made before the Judge of that court I
As to the operation of the Act of Limitation,
no auch point waa made in the court below. If
ft had been preaented, the law of Louisiana
would not have suatained it. Cited, Civil
Code, art. 10S2, 1084; art. 67, page 486, Title
Prescription. In 3 Martin's Rep. 4S8, the law
on this subject la found. Preacription does
not apply to pledges, and ia always interrupted
by judicial proceedings, and it does not run un-
til twenty yeara. Cited, as to Freacription or
Action of Nullity, Civil Code, 722, 10S4.
The argument for the appellant has been mis-
taken by the counael for the defendant. It has
not been said that thia is the caae of a mort-
t1**] gage. ■Poasessioa of the property
mortgaged does not expressly, nor does it ever
in Louisiana pass with the execution of the in-
strument. Tws was not, then, a mortRaKS.
Was it an absolute sale! The demand of toe
money at the several succeeding periods when
it became payable, and the proteats at each
Sriod, even at the last, when bj the aurren-
r of the counter letter and the new agree-
ment, the transaction had assumed a new as-
pect, show that it was always considered and
fa«ated as a loan.
The only right Fort 4 Story uqnlred hf the
last agreement, was the right to procura from
a competent court a decree of sale; this decree
they eould not legS'll? obtain, until the oom-
^ainant was legalfy put In default by the aen-
tanoa of ■ aourb
T6C
The aomplainant waa never put In legal da-
fault; no legal dpmand was made; no aale or-
dered. The propeity remains the property of
Livingston In pledge.
The contract was usurious by the law of
r^ouisiana. Interest on a judicial proceeding
is five per cent.; bank interest is six per cent.;
and conventional interest may be ten per cent.
No one can recover on a contract where the
interest exceeds ten per cent. In this ease the
contract being usurious, was tainted and cor-
rupted througnout. The transaction not bei^g
one of mortgage, not being a conditional aale,
or an absolute sale, after the surrender of the
counter letter, ivhat is itT This is shown In
the laws of Louisiana.
Under that law, as under the civil Uw, the
security Is one of the highest order, and one
under the peculiar guardianship of the law.
The contract being made, is to be carried out
aeoording to its original terms, and no otli«r.
If the amount loannl ia not repaid, the lender
muat adopt the course which was originally
agreed upon, and which he stipulatrd to pur-
HUE. He can only sell the property by a judi-
cial sale, and from the sale receive tlie sunt dii<-
to him. This is called an antichresis by the
Civil Code; and all its characteristics and ita in-
cidents are well defined, eatabliEhiid, and de-
clared. Cited, art. B74, 984, Civil Code.
The nature of the antirhreais is that the
lender haa the property in his possession and
receives the profits. These go towards paying
all expenses to whicli he may be subjected, and
discharging the interest on the loan. The rule
of the civil law, both in Louisiana, and where-
ever it prevails. Is, once a pledge, always a
pledge. Coaes have existed, and the rules of
the law have been applied to them, in which
*aa many as one hundred yeara have ['317
elapsed sinoe the transaction was eommenoed.
13 Seirey, 223.
The stipulation which was afterwards entered
into— that the title to the pledge should become
absolute, and become a title in fee-simple —
was void and null by the Civi! Code, and by
the decisions of the courts of Louisiana. Civil
Code of 1808, art. 26, tit. Pledge; Code Napole-
on, art. ZO, 88. It is here said the cnTditor can-
not sell the immovable property pledged in de-
fault of payment, or by the consent of the con-
tracting party.
The code of Louisiana is borrowed from this
article. Under this article the French eourta
have proceeded, and have held that a cred-
itor cannot sell the pledged article with tbe
consent of the debtor. 12 Seirey, 20; 13 Seirey,
233; 7 Seirey, 872. CiUd, 1 Martin's Rep. New
Series, 417; 2 Ibid. 22, 24, 17; 3 Ibid. 17. IBS;
Fotheir on Pledges, Potheir on Mortgages, ch.
4, tit. Security.
The court will apply the law which is thus
eatabliahed to the case before them. The ap-
pellant asks a reatoration of the property on
the restoration of the sum loaned, and the in-
terest. Including all costs and expenses. Thia
is reasonable. It has been shown that this may
be, and has been done after one hundred years;
and in the caae before the court, littla beyond
ten years had passed, before the claim, which
Is now before the court, was made. By the
decree which the court are asked to gjre, the
defendant will sustain do injustice. The ap-
un
LntROBtoii's BxxcuTsix T. BniT.
m
peltkBt, H wai mU In Dm argument In eblBf,
doM not plftoe the elaim on the ]bw of usury.
Ba Aik* that ill the intereat be agreed to pay
■hall be altowed to the defendant; and this be-
iag allowed, and all the capital advanced re-
pud, the property fa aeked ror; or that a ule
of the same shall ba made, and the reeidiw of
the proceed) paid over, after all that the de-
fendant ie entitled to ebBll have been fully *•■
imburaed to him,
Hr. Jti^tin Wayne deliTered the opinion of
the court:
The legal question to be decided in thl« eaae,
depends altogether upon the faftt disclosed in
the bill, answers, and documeuuiiy evidence
on the record.
The complainant charges that aome time pra-
fioua to the 2eth July, 1B22, being in want of
money, be applied to the defendant and John
A. Fort, for a loan, ofTering as security a lot on
the batture of the suburb St. Mary, between
Cmnmon and Gravier streets, in New Orleans,
OB which a building intended for stores had
S7S*] been 'begun; that the defendant and
Fort had agreed to lend him twenty-two thou-
aand nine hundred and thirty-six dollars, of
which a part only was paid in cash, part in
a note of John A. Fort, and eight thousand
dollars of which was, afterwards, agreed be-
tween himself, the defendant, and Fort, to be
paid by Fort ft Story to one John Rust, a me-
chanic, who bad contracted with oomplainant
to complete the stores; that to secure the pay-
ment of the money borrowed, oomplainant con-
veyed to Fort & Btory the lot of ground men-
tioned ; and that contemporaneously with the
deed of sale, they executed on their part itu In-
strument in writing called a counter tetter, by
which they promised, on the payment of twen-
ty-fire thousand dollars, on or before the 1st
day of February, 1B23, to rcconvev to the com-
plainant the property which he had conveyed
U> them. The complainant further charges
that of the sum of twenty-flve thousand dollars,
to be pnid by him on the Ist of February, a
part of it wa« made up by a charge of interest
at eighteen per cent, per annum upon the
amount of twenty-two thousand nine nundred
and thirty-six dollars, actually advanced to
him, and on his account to Rust, by Port A
Story. The complainant also transferred his
written contract with Rust to the defendant
and Fort, rendering himself responsible for the
proper employment of the eight thousand dol-
lan by Rust, and which was to be paid Rust in
meUy payments, by the defendant and Fort.
Roat, on his part, consented to the transfer of
Us contract, and accepts Fort & Story in the
place of complainant. The stores were to be
completed by Rust by the first of November,
1B22. in a workmanlike manner, and all the ma-
terials, except those already provided, were to
be found by Rust; and in his contract, he re-
nounces all claim or privilege upon the building,
beyond the eight thousand dollars which was
to be paid him by Fort k Stoij, for the com-
plainant. (For the deed of sale from Living-
-'n to Fort A Story, the counter letter to Liv-
anto, page
dugea tttat
&S4. ) The complainant further
aoMi after the transaction, he l^t
Kew Orleans, and that when ho retained to It,
he found that Fort ft Btoi^ bad paid to Rost
eight thousand dollars on hia account; but that
little or nothing bad been done towards the
completion of the stores; so that if the property
had been sold on l^e 1st of February, according
to the terms of the oounter letter, it would not
have prodooed anything like its full value.
That under theae circumstances he applied to
Fort ft Story for further time to make the
'payment of the sum loaned, which [*97t
they would not consent to hut on the following
oonditions: that the property should be ad-
vertised tor sale on the 2d of June, 1823; that
the sum due them should be increased frmn
twenty-flve thousand dollars to twenty -seven
thousand five hundred dollars; which was so
increased, by the addition of fifteen hundred
dollars as interest, at eighteen per cent, for four
months; eight hundred dollars for auctioneer's
commlssiona, fifty dollars for advertising, and
one hundred and flf^ dollars, arbitrarily added
by the said Fort ft Story. The complainant
states that being entirely at the mercy of Fort
ft. Story, he consented to thoso terms, and exe-
cuted a paper accordingly. Ante, page 36S.
On the 2d June, the complainant being still
unable to repay the actual sum advanced to
him, and the additions made by the charge of
interest at eighteen per cent, etc., etc., he ap-
plied to Fort ft Story for a further extension of
the time of sale, which they consented to fur
two months longer, to the 5th of August, by
which hie debt to them was augmented to
twen^-seven thousand eight hundred and thirty
dollars seventy-six cents; he agreeing in writ-
ing that if, on the last-mentioned day, he should
fail to pay twenty-seven thousand eight hun-
dred dollars seventy-six cents, then the lot and
all the buildings thereon were to become the
full and absolute property of Fort ft Story.
Ante, page 3Sft. The day came, and the aon-
plaJnant did not pay. The defendant had him
protested, as ha had before done on the 4th of
Fdruaiy, for Us noncompliance with bit agree-
his noncompliance with his agreement to pay
twenty-seven thousand eight hundred and
thir^ dollars seventy-six cents; and for all
damages, oosts and charges, and interest, suf-
fered or to he suffered by the said Fort ft Story.
The defendant and Fort after this, continued
in possession ol the lot and bnildinga, until the
death of Fort, which took place in 182B; and
after the death of Fort the defendant Story re-
tained or took possession of the property in an
arrangement with the heirs of Fort. It IB to
be remembered that the possession of the prop-
er^ was given t^ Livingston to Fort ft Story
on the 22d of Jufy, I82E, when the deed of sale
and oounter letter were executed.
Here it Is proper, for a full understanding of
the transaction between these partiea, to set out
what were the rights of Livingston, and obli-
gations of Fort ft Story to Livingston, growing
ont of the counter letter, and continued by
them on the subsequent agreement, until that
■of the 2d of June; when it was stip- ['380
ulated by LJvingstan that if be failed to p*y
on the 5th of August, the property was to bo-
come absolute In them.
The oounter letter, attsr radting that UvlDg-
flKI
BoFHEMk CouiT or txt Uurm Suna
■ton had Mid ami eonveyad to th«m the lot,
buildings and improvement*, for the aum of
twentf-tive thousand dullara in caih, declaret
it to be the true intent and meaning of the par-
tiM to aaid d«ed of sale, that if Livingtton Mall
fmj and rc-imburae to Fort ± Story twentj-
fl*a thousand dollars, on or before tha lit of
Fabniary, 18^3, then Fort t Storj atlpulata
and bind tbemBetvet to reconvey the propnty to
Uvlngaton. And in case of nonpayment, mi
tba atipulatfd time, tlinn Fort k Story "now-
nant and agree to cause the said property to be
■old at public auction, bv one oi tte llcenaed
auctioneen of this city, alter twenty day*' pub-
lie notice, on the following terms, to wit:
twenty-five thousand dollara in cash, and the
raldue in equal payments, at one and two
; the purchasers giving satisfactory
deducting the costs attending the sale, to be
delivered over to the said Edward Livingston."
When the first extension of the time of pay-
ment waa given, we And, subs tanti ally, the
elauM of tha kind just recited. It will m well
to give it in terms.
Agreement between Edward Llringston and
John A. Fort and Benjamin Story:
1st. The sale of lot Xo. I, on the batture,
with the buildings thereon, to b« postponed un-
til the 2d of June next.
2d. On that day it ahall be sold by M'Coy t
Ckh, unless sooner redeemed, after being ad-
vertised in the Courier de la Louiaiane, in
French, and the Orleans Gaaette, in English,
360 dollars cash, and the residue at one and
two yeara, with special mortgage; but in this
■urn is Included 8S0 dollars, at which the auc-
tioneers' commission and charges of advertise-
ment are calculat»l, which are to be deducted
hall really amoi
. . e the first of Ji
4tli. The overplus, after deducting tne caah
payment, is to be delivered to Bdward Living-
ston.
Gth. The oounter letter, executed bj Hessra.
SSI*] Fort & Story, 'shall be delivered up,
and the registry thereof annulled immediately
aftor the signature of this agreement, made l:^
duplicate, eto.
The defendant begins his answer by denying
the right of tfae complainant to sue in the Dis-
trict Court of the United States tor the Eastern
District of Louisiana, on account of bol^ being
eitizena of the same Stato; equivalent to a
denial of the jurisdiction of the court over the
Re then denies positively and repeatedly,
that Fort and himself, either Jointly or sepa-
rately, ever agreed to lend tne complainant
122,936. 6o far from any loan having been
intended by the partita, he says the negotiation
for the sale of the lots began between Fort and
Nathan Horse ( the latter of whom he atatea
wished to raise money on auirtgage; that he
; peremptorily refused to advance any money to
a the eomplainant on mortgage. That this refus-
al waa afterwards made by Um to the defend-
ant bimaatt; K&d for a conflrmstioa of Ua re-
fuaal and underatanding of tha partiea, ha n-
fera to two notes of Morse, as a part of Us am-
«wer, both of them addresaed to Fort; tha Int
dated the 13th of July, and the other on tka
day the conveyance of the lot was mode to Um-
self and Fort, by Livingston. Ante, page MD.
He then states the sale of the lot to bimaelf aad
Fort; refers to the deed of sale and, genervlly,
dedarea himself and Fort have paid more thaa
the price agreed on for the property so pm^
chased. He then admits the execution, by
himself and Fort, on the day of the sale, of an
instrument in writine, giving to Livingston tha
power to redeem; whereby, upon the paymeat
of 928,000, on or before the 1st of February,
they were to reconvey the property to Livia^
eton; and if be failed to pay, that Fort ft Stoiy
were to sell the property ao acquired and pur-
chased, and if it brouf^ht more than 921,000,
that they would give the surplus to the eon-
plainant. The ansu-cr then contains the failora
of Livingston to pay; the extension of time to
him bv another agreement, to the Ed of Jnn^
on which they agreed to postpone the MUe, aad
that Livingston was to give them a compenoa-
tion for the additional chance which the tima
allowed gave him to repurchase the lot. Upon
this agreement tbe defendant relies to prove an
absolula bill of sale of the property to himaelt
and Fort at the time of ita execution, because
the fifth and lost clause of it annulled the coun-
ter letter. The defendant recites the aecond
failure of Livingston to pay ; the further
'extension of time to bim to the Sth of [*SSS
August, i^d Livingston's stipulation <aate,
page 366), by which, on Livingston'a failure to
pay •27,830.70, and any further sum that Fort
• Story may be under the necessity of paying
for the care and preservation of the proper^;
the lot and buildings were to lieeome the fnll
and absolute property of Fort t Story, and
Livingston's obligation to surrender and caneel
all and every writing or otber document in re-
lation to the property, that may give bim any
equity of redemption, or other right in Um
premisea; it being tbe true intent and meaning
of the parties that in case of failure of pay-
ment, that the lot and buildings, and appur-
tenances, are to vest in Fort &. Story a full title
in fee-simple, forever. The defendant insista
that Livingston was the guaranty of Rust for
the application of the 98,000 to the completion
of the buildings. He then relies upon the nin^
^-third and ninety fourth article* of the Civil
Code of Louisiana, then in force in the State,
to give himself and Fort an absolute and irrev-
ocable title to the properlv, on Uvingston's
failure to pay on the Sth of August, "nie ar-
ticles relied on are: "The time fixed for redemp-
tion must be rigorously adhered to, it cannot b*
prolonged by the judge;" and "if that right haa
not been exercised within tbe time agreed on bj
the vendor, he cannot exercise it afterward*;
and tbe purchaser beoomes irrevoc^ly posaea-
aor of tbe thing sold." He reiterates bia denial
of any loan, or that time was given to Living-
ston to repay a loan; but that tbe extension of
time was to enable Livingston to repurchase, or
to effect the sale of the property; and that the
inereoae of the sum from 125,000 to •27330.70.
was the sum demanded by tbem a* the consider-
ation of their waiver of their right to have tiN
aal* mad* at tha time th* money waa pay-
IU7
ijnRMioR'a ExBoimu t. S««t.
able, nit defcnduit danlM the deduction of
intareat at eighteen per cant, per Konum
any other.
To the Mcond interrogatory in the bill, be
wKwers Uiat. at the time of the purclia^e, he
Eid LiTingBtoii in a check on the United Stated
ok, twelve tbouaond and six dollar* fifty-
•even crnta, in a aot« of John A. Fort, in favor
of defendant, due and paid November 26th,
1822, t»'o thousand seven hundred and lixty-
four dollars eighty-three centa; and to Nathan
Uorae, Esquire, the attorney of Edward iiiv-
ingston, one thousand dollars ; whieb aum,
Morse stated to Story, he considered ouglit to
ha*e been paid him l;^ Livingston, for effect-
ing a sale of the property. To the fourth in-
SSS*) terrogatory; *»'hich is, if Fort t Story
did not consent to postpone the sale of the
property to the second of June, and did not
wuct, as a condition of such postponement,
that the counter letter should be oincelled, and
that the complainant should pay the aum of
two thousand five hundred datlan, in addition
to the twenty-five thousand dollara: and wheth-
er the sum of two thousand five hundred dol-
lars was not made up of interest, charged for
four months, at eighteen per cent, per annum,
of eight hundred dollars auotioneera' commis-
sion, £ft7 dollara lor advertising, and an arbi-
traiy sum of one hundred and fifty dollars, tlie
defendant answers that Fort and himself did
consent to postpone the aalej but that he does
not know, except from the act, how the addi-
tional sum stipulated to be paid by them was
eomposedi nor does he recollect any mem-
orandum eontainiug the items of the additional
In an ishlbit by the defendant, we, how-
■var, have a more precise atatement of the
oum paid to Ijvingston.
July 2Gth, 1B22, cash paid E. L. . . (12,006 07
2Tth ■* J. A. Fort's note,
payable 2£th Nov &,7«i 83
Sept. 10th, cash paid John Ruat at
•undry times 8,000 00
Intereat ,., 2.228 80
(26,000 00
Ttatu •nbstantially eonfliTning the allegation
of the ocnnplainant that the aum of twenty-Ovfl
thousand dollura expressed on the deed of tale,
•■ the consideration for the purchase, was made
up In part of an amount of interest upon that
■tun, deducted by Fort A BtoTj, cont«npora-
neously with the execution of the deed of sale
and counter letter. There is this difference,
too, between the answer of the defendant and
the exhibit, that it appean from the latter, the
aam of one thousand dollars paid to Morse,
which the defendant. In his answer, alleges to
have been paid by him as a part of the consid-
eration for the lot, or on account of Idvingston,
was not paid to Slorse until the 12th of Febru-
ary, 1824; more than sis months after the time
when the defendant considered himself and Fort
to hare aeqafred a full and absolute title to the
property, from the failure of Livingston to pay
«B the Sth of August preceding. Upon this
item of money paid to Morse, we remark that
the letter* of Morse {ante, page 360) do not
prove Horse to ha*s been the ajg«nt of Living-
■ton tn nMotiating the tranioetion between the
partiea; but ntbtr that ha waa, if not alto-
gether the agent of Fort ft Story, the agent
of both 'the parties; and Uiat the de- [*X84
fendant, without consulting Livingston, gradu-
ated the compensation of Uorae by his own
ideas of the service rendcreil by him, and chose
to pay Horse one thou.iand dollars, after be
considered Livin;;aton had forfeited hit right
to reucem the property. The answer and ex-
hibit are contradictoty upon this point; but
the latter being more detaiied and certain, it
forces the conclusion to whiuh we bava come
as regiirds that item. We must remark, too,
tiiat the answer and exhit>it arp also contra-
dictory in a more essential praticular, as re-
gards the interest alle(;ed to have been de-
ducted from the twenty-live thousand dollars,
at the time the deed of sale was executed; the
exhibit stating the fact of interest being then
deducted, and the ansivcr denying that eighteen
per cent, interest was deducted, or any other.
Soon after the transaction of the 2Gth of
July, 18:^'^, the complainant left New Orleans,
and did not return to it until after the time
within which Rust was to have hnii the build-
ings completed. They were not tinished, how-
ever, and this incipient dest^rvcs a passing no-
tice. The defendant and Fort had required an
assignment of Rust's contract to them; indeed,
it is of the sai^e date with the deed of tale
and counter letter, and seems to have been made
by Livingston and Bust for tliem. It was
transferred with Rust's consent, they under-
taking to make weekly payments to him of
S66C during Uie progress of the work, to the
amount of XS.OOO, and Livingston rendering
hiraadf responsible for the proper employment
of the money by Rust. In a xliort time, how-
ever, the defendant admits that he discovered
Rust misapplying the money to tome other
oontract; and that, upon remonalrating with
him against such conduct. Rust persisted in a
declaration of his intention to expend the mon-
ey otherwise than in the execution of his con-
tract Under these circumstances, what should
the defendant and Fort have done? We think,
good laith wilji Livingston, as they had made
thonselve* hia agent to disburse 83,000 for a
particular object, to which they had beooma
partiea by the transfer of the contract, re-
quired Irani them in Livingston's absence, to
have ttopped further payments to Rust, not-
withstanding Livings ton 't rfspimaibility for
the proper employment of the money i for
Rust's obligation to them under the transferred
contract, was to have the stores finished by
the 1st of November, and as they held the
funds to be applied to tlmt object, they should
have withheld tbem from Rust when he de-
clared his inLpntion not to dn so, and had
ceased to work upon the 'buildings. [*S8K
Rust's conduct was as uincb a breach of his
contract with them as it waa with Living-
ston; and they should have protected them-
selvea and Livingston, which they could easily
have done. Instead of this lieing dune, the ds
fendant admits be continued tlie weekly pay-
ments to Rust after he .had discovered the
misapplication of the money, and that but one
thousand dollars of the eight tliou»atid dollars
were applied to the buildings. They neither
protected themselves nor Livingston; and it
cannot be disguised that the misapplication of
tba mane* was much more fat»l to Livinntoa
•U Bfjrwaa Coun or t
th&B thonselvei, for the building! being
flnlahed in November, Livingaton vr»» deprived
of UIT farther reaoiiixea from them to aid him
in redeeming the property od the let of Febru-
ary, by paying the money advanced by them.
TlitB racident gave Uvingaton a strone claim
upon the defendant for an extension of time;
and we cannot but remarli, that It haa a bear-
ing in favor of the allegation of the emnplain-
ant, that by the contract of July, 1S20, an ab-
•olute lale vras not intended. la it reasonable
to auppose that the defendant and Fort, If an
absolute sale had been intended, would have
ealmly seen the miiapplication of eight tbou-
■and dollars from what they deem their prop-
erty, and taken Livingston as a aecuritv, upon
his general reBponsibility for Rust; when the
defendant himself declares he would not have
loaned Livingston money on any account T The
oonaequenee of this misapplication of seven
thousand dollars by Rust.iras to take so much
from Livingston's ability to redeem the prop-
er^. The complainant, however, does not pray
to be discharged from this sum, on a settle-
ment of the transaction with the defendant;
and, therefore, the payment to Rust, of eight
thousand dollars, must be allowed to be a
charge against Livingston.
We do not deem it ncceBsary to make a fur-
ther synopsis of the bill and answer.
They are contradictorj in several pointa; but
a careful examination of them, and of the doc-
uments and exhibits attached to the answer,
has enabled us to fix the legal character of the
transaction, throughout, under the laws of
Louisiana; whatever may have been the de-
■igns of the parties upon each other, or their
individual intentions, when the contract was
made, on the 26th of July, 1S2E. The law of
Louisiana controls the controversy between
these parties: and the first, indeed, only Ques-
tion, to be determined, is, what was the l^al
character of the contract between them, from
the execution of the first papers to the last,
on the Zd of June, 18Z3T
38B*] 'The defendant's oounael do not eon-
tend that it was an absolute sale. The defend-
ant's answer shows it was not. He admits Liv-
ingston's power to Kdeem, and their obligation
to reconvey, as expressed in the counter letter.
For although the conveyance of the 26th ol
July, 1822, is. In form, a poaitive sale, yet the
counter letter explains its nature as fully as if
It were Inserted in that conveyance. Executed
aa it was at the same time, it is a part of the
oontract; a separate clause, modifying and ex-
plaining the other clause states the deed of
sale. The two must be construed together.
The Civil Code of Louisiana says, "all clauses
of agreements are interpreted the one by the
other, giving to each the sense which results
from the entire act." Civil Code, 180B, p.
270, sec. B, art. SI. It can make no difference
whether these clauses be on one piece of paper,
or on two pieces; whether there be two sepa-
rate Instrument, or one instrument eontaining
Um substance of the two. The Civil Code of
Louisiana does not require that the stipulation
of parties, relative to a sale of property, should
be in one instrument. They are to he redneod
to writing, and the parts neeesaarily make
E tlKiTD Sum.
isar
' feasance attach Itself to a eonrejaiiee, abMilnts
in the first instance, converting the letter into
a mortgage, as it is expressed by Chancellor
Kent, In Com. 4 Vol. p. 136, treating of mort-
gages, rrha condition upon which the land Is
conveyed is usually inserted in the deed of
conveyance, but the defsasanee may be eon-
tained in a separate instrument; and if the
deed be absolute in the first instance, and the
defeasance be executed subsequently, it will
letate back, to the date of the principal deed,
and oonnect itself with It, so as to raider ft
a aecurity, In the nature of a mortgage.
We do not mean to be understood as apply-
ing this rule to make, under the laws of Louisi-
ana, a constructive mortgage out of an abso-
lute conveyance or deed of sale, on account of
some other paper explaining or controlling the
first; but have used it only aa an illustration
that, by the law of Louisiana, a contract of sale
and a power to redeem, need not be In one in-
strument.
The contract of the 26th of July, 1822, not
being an absolute sale, then, what is it I It is
either a conditional sale, ventc a rtai^rtf (sale
with the right of redemption) a mortage, or
a pledge. The defendant's counsel say it is the
first, a conditional sale, vente a remerA. We
will use their language. They say it is a eon-
tract of sale, not a 'pure and simple [*9S7
sale, but a sale with conditions, and a right or
power of redemption annexed, vente a r6m«r6;
that the right and power of redemption stipu-
lated for in this case, is in exact eonformity
with the provisions of the same code of 180S,
in form and substance, and identiflea it still
further as a sale, vente a remere. That is de-
fined to be "an agreement or paction, by which
the vendor reserves to himself the power ol
taking back the thing sold, by returning the
price paid for it" (Civil Code, 24S| ; and the
provision of the code regulating the right of re-
demption, or that "the time fixed tor redemp-
tion must be rigorously adhered to, it cannot
be prolonged by the judge ;" and "it that right
haa not been exercised within the time agreed
on by tha vendor, he cannot exercise it after-
wards, and the purchaser becomes irrevocably
possessed of the thing sold;" just as at common
law and in equity, in the case of an absolut*
sale with an agreonent for a repurchase, the
time limited for the repurchase must be pre-
cisely observed, or the vendor's right to reclaim
his property will be lost 1 Poth. on Sale,
163; 1 Vesey, 40G.
But in this instance there was no sale eorre-
sponding to the vento a rCmertf, unless otOer
provisions in the counter letter than Living
B ton's right to redeem, shall be altogether dis-
regarded. By the counter letter. Fort h Story
covenant with Livingston upon his failure to
pay, that the proper^ shall be sold at auction,
and that the residue of what it might bring
over the sum which they claimed sliould be
C,id to Livingston. Upon failure to pay, the
nd and buildinga did not become the prop-
re- imburennent. Had the contract been a
vento a rOnCrf, the laud would liave become
their absolute property; for the code ts, "if the
right to redeem haa not been sxereised witkin
P«tfln It.
LnntGBToii'a ExGctmtz v. Bton,
SS7
by Fort A, Story in the counter letter, upon
Livingston's failure to pa^, deatroya to princi-
pal and eirective a provision of the vente a
T€rairt, that tlie law will not permit aa to con-
aider the contract to have been one of tliat kind.
The question then recuri, what wa* the
nature of the contract or the 25th Julj, 1S22T
It i* not a mortgage, because no property on
the toil, nor riglit of possession, it given by the
S8S*} contract of mortgage 'by the law of
Iiouisiana. By that law, a mortgage is defined
to bt "a contract, by which a. person afTects the
whole of bis property, or only aome port o! it,
in favor of another, for security of an engage-
ment; but without devesting himself of the
possession thereof." In thia instance pnsaession
accompanied the execution of the deed, and has
continued in the defendant It was a part of
the contrnct, and a feature of it entirely in-
consistent Kith a mortgage under the lawa of
Louisiana. The contract, then, being neither
a sale upon condition with a power to redeem
annexed, a vente a rOnfre ; we must seek
further In the laws of I^iuisiana to establish
its legal cbaract«r. After much inquiry and
deliberation, and a comparison of the Civil
Code of Louisiana with the civil taw from
which the former derives its origin, and with
which it is still in close connection, we have
come to the conclusion that the original con-
tract and counter letter constituted a pledge
of real property; a kind of contract especially
provided tor by the laws of Louisiana, de-
nominated "an aDtiehresis." By this kind of
contract, the posscasion of the property is
transferred to the person advancing the mane;.
That was done in this case. In case of failure
to pay, the property is to be sold by judicial
aentenee, and ttie sum which it may bring
over the amount for which it was pledged, is
to be paid to the person making the pledge.
In this case a provision was made for a sale cy
the parties upon the failure of payment; but
this feature of this contract is rather confirma-
tory of the contract and counter letter, being
an antichresis, than otherwise; tor it is, at
moat, only a substitution by the parties ol
what the law of Louisiana requires, and what
wr think the law requires to be done by Itself,
through the functionaries who are appointed
to administer the law. But upon this point.
let the law speak for itself.
e Civil Code
by which the debtor gives something to his
creditor as a aecurity for his dd)t." Tit. 20,
Art. 3100.
"There are two kinds of pledges; the pawn,
and antichresis."
"A thing is said to be pawned when a mov-
able thing is given as security. The sntichre-
ai" is when the security given eonsists in im-
movables." Tit. 20, art. 3102.
"The antichresis shall be reduced to writing.
Tbt creditor acquires by this contract, the right
of reaping the fruits or other revenues of the
immovables to him given In pled^, on con-
dition of deducting annually their proceeds
from the interest. If any be due to hun, and
attarwards from the principal of hi* debt"
At*, mas
"The creditor ta bound, nnlesa tke [*SSt
contrary is agreed on, to pay the taxes as well
as the annual charges of the property given to
liim in pledge. He is likewise bound under the
jienalty of damages to provide for Uie keening
and useful, and necessaiy repair* of the pleaged
estate, and may levy out of the revenues of the
estate sufficient for such expense." Art. 3144.
nent at the stated time, any clause to the oon-
trarv is null; and in this case it is only lawful
for dim to sue his debtor before the court, in
order to obtain a sentence against him, and to
cause the objects which have been put In his
hands to be seized aud sold." Art. 3140.
"The debtor cannot, before the full payment
of the debt, claim the enjoyment of the immov-
ables which he has given in pledge. But the
creditor, who wishes to free hiraeell from the
obligation* mentioned la the preceding artidea,
may always, unlets he has renounced tbi* right,
compel the debtor to retake the enjoyment ot
his immovables. Art. 314S. These appear
to us to be equitable provisions, affording
ample security to the creditor, and fully pro-
tecting the rinhta of the debtor. Especially
protecting the latter from a rapacious creditor,
who might otherwise push his debtor's necesal-
ties into a relinquishment of all his rights in
such a contract; to make himself the pro-
prietor of the thing pledged, upon the fallur*
of the debtor to pay. This is a high speciea of
security, onr which the law watches benignant-
1y; because, though one of choice and conven-
ience, vtT7_ frequently, it i* commonly the
resort of distress in the last alternative, when
all other means of raising money have failed.
'*' '"as this high species of security that Fort k
/ received from Livingston, or their con-
tract cannot be comprehended within any of
the provisions of the Civil Code of Louisiana.
If anything else, it is a contract unknown to
the laws of that State. We class it with the
antiebresis; not because the instrument between
the parties provides specifically in every par-
ticular for the rights and obligations of par-
ties to the antichresis, but because it does so,
in the main and substantial requisites of such
a contract, and from those main and aub-
stantfal particulars In this contract, being ir-
reducible to any other kind of contract pro-
vided for by the laws of Louisiana. The prop-
erty was put into the possession of Fort ft
Stoiy; they looked to it to rs-Imburse than
upon the failure of Livingston to pay; upon
that failure it did not, from the terms of the
counter letter, become *theirs absolute- [*SftO
ly; as we see would have been the ease if it
had been a vente rAnSre. It was to be sold at
ubiic auction; and it a sale should be made
ar more than they had advanced the midue
'as to be paid to Livingston. But no such
sale oould be made without a judicial sentence;
such a decree was not obtained ; no sale was
made; so the parties stood under the contract
on tbe let of February, when Livingston first
failed to pay, as they did when it was flr«t
entered into. It is Uierefore plain that Fort
A Story acquired no absolute property ia the
lot and buildings, under the contract of th*
20th ot July, 1822; and it they did not, it
was only a pledge or antldurcais for their
ultimata HklmhnnMiMttl:
8up>niB CovKi or tbk UincB) Stams.
We maw proceed to iaqnire irbether the
kutichresis waa converted into a Mile by the
nulnient of tJie counter Utter after the lat of
F^bru&r;, 1823, under the agreement of the
4th of 21arch. It appeai-a by the document
(ante, page 336} thut the complainant did, on
the last -mentioned day, execute a paper kunul-
ling the counter Ivltcr of the 25th July. But
supposing the first to have been so annulled;
was not the second in effect and in terms,
another inatriunent of the same kind, onlj^ ex-
tending the time for redemption upon consider-
ation of Livingston's paying & larger sum than
the twent;-Sva thousand dollars originally ex-
pressed in the first deed of sale; and providing
still for a sale in the event of Livingston fail-
ing to pay a secoiid time, and Kivlng to him
the residue, if any should remain, after they
were re-imbursed I Consequently, until the 2d
of June, the pledge continued. Livingston, un-
der the agreement of the 4th March, could, by
paying the money at any time on or before the
a of June, have prevented the sale, and it a
sale was made, he was entitled to the overplus.
The defendant, in his answer, says that he
and Fort agreed with Livingston to postpone
the sale until the 2d of June, for which Liv-
ingston agreed to pay them a compensation,
etc., etc.; that he had until the 2d of June to
redeem, but did not do so; that then the prop-
erty was to have been sold, etc., etc. Thus
showing that the property in his possession
continued to be a pledge; and in case of Liv-
inge ton's not paying, that a sale waa to be
made, not nitli standing the annulment of the
counter Iptter. But for what purpose was
the eountei letter annulled) Clearly because
an increased sum was to be paid to Fort 4
Story by the second agreement, and not be-
cause it was the intention of the parties to
alter, substantially, their respective rights in
the properly. The counter ietter, the agree-
Sll*] merit to sell at *a fixed day, and after
re-imbursing the defendant and Fort to deliver
the surplus proceeds of the sale to Livingston;
the prolonged ain'eeinent to sell after annulling
t)w flret counter letter, without any renuncia-
tion of Livingston's right to the overplus, as
set forth in defendant's answer, prov« con-
clusively, to us, that Story regarded the con-
tract to be what ie really made by the law of
Louisiana, a contract of pledge; a security for
money advanced upon property. We think it
was in its inception an antichresis, and that it
continued so until the 2d of June, 1823. Did
it after that time retain its original character r
The agreement of the 2d of June recites,
"that it being the day fixed upon by the con-
tract between Livingston and Fort t Story,
for the sale at auction of the lot, eta, etc., and
Livingston having requested that the sale might
not take place for his own accommodation ; on
condition that Fort and Story would assent to
that request, Livingston agreed to increase the
sum due to them to twenty- seven thousand
eight hundred and thirty dollars (which thay
deem the whole of the consideration money
paid by them for said lot) , and to pay the same
on the 6th of August, then next, and any
further sum that they may be under the neces-
sity of paying for the care or preservation of
the property : in which ease the property should
nrert to UTingston. But if be should Uii to
7H
make such payment on the Sth of Augirat, tiM
said lot should become the absolute property
of Fort i. Story; it being declared to be the
true intent of the parties, in case of failure of
payment, that the said lot, with all the build-
ings thereon, are to vest in Port ft Btary, a full
free and absolute title, in fee-simple, forever."
Such an Instrument as this would have the
effect to rest in Fort &, Story an absolute title
in the property, it it were not positively con-
trolled by the law of Loniaiana. We must
administer the law ae it is, and having estab-
lished that the original transaction was on &a-
tichresis, and continued so up to the 2d of June,
it was not in the power of the parties to give to
it such a character, as to vest by the act of Liv-
ingston an absolute title in Fort & Story. "Id
the language of the Code (1808, tit. FleiJee, art.
28) already cited, the creditor does not become
proprietor of the pledged immovables by fail-
ure of payment at the stated time, any clause
to the contrary is null;" "and in this case it
is only lawful for him to eue his debtor, be-
fore the court, in order to obtain a sentence
against him, and to cause the objects which
have been put into his hands, in pledge, to be
seized *and sold." If such a clause bad [*S»X
been inserted in the original agreement it would
have been void. Csn it be more valid, becausa
subsequently introduced in a paper having a
direct relation to the first contract; and whick
was intended to alter its character into some-
thing which the law prohibits, when it deter-
mines the original contract to be one of pledge T
We think not. Such an allowance to a creditor
would be a precedent, giving to all creditors in
cases of pledges the power to defeat the bener-
olent vigilance of the law, preventing them
from becoming proprietors of the debtor's prop-
erty, unless by a decree of the court. We think
it immaterial whether such covenant be in the
original agreement, or in a subsequent instru-
ment. In either case, the law is express; tlie
creditor does not become the proprietor by the
failure of the debtor to pay; any clause to the
contrary Is nulL
It would be difficult to find a case more
clearly iilustratiiig the wisdom of this m)e
than that under our consideration. Fort &
Story advanced to Livingston twenty -two thou-
aand nine hundred and thirty-six dollars, and
took possession of the lot; looking to Livings-
ton, in the first instance, for re-imbursement,
and, on bis failure to pay, to a sole of the lot.
Livingston being unable to pay at the time
fixed, applied for an extension of time; it is
granted, but only upon condition of an addition
of twenty-five hundred dollars to his debt, fur
a delay of four months; thus creating a debt
of twenty-seven thousand five hundred dollara,
in ten months, upon an advance of twenty-tiFo
thousand seven hundred and seventy-one dol-
lars, forty cents. This increase, the exhibit at-
tached to the defendant's answer proves, wsa
not on account of expenditures upon, or in the
care of the property; for that account shows
the disbursements of the defendant in the car*
of the property up to the Sth of August, 18£3,
did not amount to four hundred dollara. When
the 2d of JuM came, Livingston was still un-
able to pay, and asked for a further extension
of time; it waa granted, but by another addi-
tion to the debt, or to the amonnt for which
I83T
LtnnasTos'B Executbix ▼. 8ti»t.
392
tlie property m» tlreadj encumbered; and only
opon candition tliat upon ft third failure, the
BTOpertj wu to vest abHolute in Fort & Storj.
Thia final recult it what the law of Louisiana
tuteoded to prevent in casea of pledge, and we
know not a case to which it can be more fftirlj
■ppl ied.
In the enforcement of the law, in this case,
we are pleased to And authorities tor doing so
In the courts of Louisiana. We refer to the
Mues of Williams et al. v. The Schooner St. Ste-
»»S'] phens (1 Mort. Hop. N. S., MIT); to the
case of Syndics of Bcrmudei t. Hanei & Hilne
(3 Mart. Rep. IT and 108).
In regard to the plea of prescription urged
En the defendant's answer, we think it inap-
plicable to a case of pledge; and if it be so,
then that plea cannot prevail in this case,
because the time had not elapsed which the
l»w of Louisiana gives to a person to sue for
Immorable property.
It now only remains for us to dispose of the
defendant's protest, in the beginning of his an-
swer, against the juriadiclion of the court in
this ease. The 23d rule of this court for the
regulation of equity practice In the circuit
courta haa been relied on to show that it is
competent for the defendant, instead of Sling
• formal demurrer, or plea, to insist on any
•pecial matter in his answer; and have the
•>me tfeneflt thereof aa if he had pleaded the
Mime matter, or bad demurred to the bill.
This rule is understood by us to apply to mat-
ter* applicable to the merits, and not to mere
pleaa to the jurisdiction, and especially to those
founded on any personal disability, or person-
al character of the party suingp or to any
pleaa merely in abatement. In this respect it
M merely aSirmative of the general nile of
the Court of Chancery; in which matters in
abatement and to the jurisdiction, being prelim-
inary in their nature, must be taken advantage
of by plea, and cannot be taken advantage of
ia a general answer, which necessarily admits
the right and capacity of the party to sue. 1
Sumner's Rep. 506, Wood v. Mann.
In this case, the judgment of the court below
ia reverted, and a decree wiU be entered ao-
eordingly.
former term, I dissented from the judgment
then rendered, being of opinion that the case
onght to be decided by tiie law of Ijouisinna,
not the code of equity adopted from the Eng-
lish system into the jurisprudence of the Unit-
ed States, as the court then decided.
As the civil law waa admitted to have been
ia force in that province before Ita cession to
the United States, and remained afterwards the
baai* of the jurisprudence of the State, with
only iuch modifications as were made by their
local laws, I felt it to be the duty of thia court
to adnunister It as it doei the law of other
Statea, *^recisely as the State courts should
do." 2 Pet. esS; C Pet. 400. It la admitted
that In the code of the civil law, there is no dls-
SC4*] crimination 'between the law and equi-
ty jurisdiction of its courta, either in the prin-
dplea or mode of proceeding; the process and
ruleB of judgment are the aame, without regard
to the nature of the right asaerted, or the
remedy sought. This oontradistinctloii ndstl
only in the jurisprudence of England, and the
States which have adopted it; nor can It exist
elsewhere, unless the common law prevails.
The jurisdiction of courts of equity, separately
from those of common taw, is a necessary part
of the common law; though the forms of pro-
ceeding are borrowed from the civil law, yet
thep
e tbos
England, by which the judge is as
much bound as in a court of taw. By the
adoption of ita forms, an English court of
chancery no more adopts the dvil law aa a code
or system of jurisprudenee, superseding the
common law, than it does the decrees of the
emperor in place of acts of Parliament. Both
systems remain aa distinct as If the modes
of proceeding differed as much as the two
systems; and though the civil law forms
are better adapted to equity proaeedings than
those of the common law, there is another in-
compatibility between the two systems. The
separation of cases in law from those in equity
is a necessary incident of the common law; one
part of the system cannot be engrafted on the
civil law without the other: of consequence,
the introduction of the equity part of the com-
mon law into a State which nas adopted the
civil law, necessarily displaces it, and intro-
duces a system of jurisprudence wholly at va-
riance therewith.
This conclusion is the result of the opinion
and reasoning of the court, which is applied to
all civil causes In the courts of the United
States, in that State (9 Pet. 658, 65T): for It
the English system of equity is in force, be-
cause there is no court of equity, the whole
common law is also in force, because there U
no court of law, contradistinguished from equi-
ty; on this ground alone, my objections to the
former decision were insuperable. By the third
article of the Louisiana treaty, the lahabitants
are guarantied "in tbe free enjoyment of their
liberty, property, and tbe religion which they
profess."^ 1 Laws U. S. 138. "That the perfect
inviolability and security of property is among
these rights, all will assert and maintain." B
Pet. 133. "An article to secure this object, so
deservedly hdd sacred in the view of policy,
aa well as of justice and humanity, ia always
required, and is never refused." 12 Wheat.
635; 6 Pet. TIE; 8 Pet, 86, 88. "According to
the established principiea of the laws of na*
tions, the laws of a conquered or ceded country
remain in force *tilt altered by tbe new [*SttS
aovereign." 9 Pet. T*T. Thia principle was rec-
ognised by Congress by the 11th section of tbe
Act of 1804, organizing the government of
Louisiana; the 4th section of the Act of Sd
March; and the Sth section of the Act of
3d March, 1B06. "The laws in force in the
said territory, at tbe commencement of this
act, and not Inconsistent with the provislona
thereof, shall continue In force until altered,
modified, or repealed by the Legislature." 2
Story, 93T, 064, 9T3. Congress extended none
of the provisions of the judiciary or process
acts to Louisiana; and Instead of re-
serving to themselves tbe power of altering the
Ineal bwa by those acta, expressly declared
that power to be In the local L^alature. These
were aolemn pledgea, which the legialative
power of the United States had naTer atUmpt-
ScPBZin Comr or the Uhitsd StAns.
ed to rioUte; or is mj opinion could violate,
without diHregardlng the fklth of the tresty; to
my mind a guaranty of property is inconsiitent
with the abrogation of the laws under which
Cperty la acquired, held and regulated, and
coDBequent substitution of a ciKle, to which
the people were utter strangers. Satisfied that
If there could be a power to change the lawa
of a ceded country, it was in the legislative,
and not the judicial department of the aoTem-
ment; 1 considered these provisions of the acts
of Congress to b« «• Imperative on this court
■• any other laws were, or eould be.
A reference to the terms of the Proeeaa Act
of 1792 will show that it could not apply to a
State in which the civil law prevailed; for it
directs the modes of proceeding "in suits at
conimon law," and "in those of equity, and
marltiine, and admiralty jurisdiction, accord-
ing to tha rules," etc., which belong to courts
of equity, and to courts of admiralty, aa contra-
distinguished from courts of common law. 1
Story, 268. These terms necesKsrily exclude
it* application to a system in which there won
no such contradistinction; but in the Act of
1824, the term is peculiarly appropriate to the
law of Louisiana, "That the mode of proceed-
ing in all civil causes, etc." 3 Story, 1071.
The reason was obvious; there was but one
node of suing, whatever may be the cause of
action. Congress thus declared, that the laws
United States therein; so it had been for twenty
years, and the State practice was conflrmed,
•abject to auch rules aa the district judge
might make. So it was construed and declared
by thia wort in 1S30. If no such rule had
been adopted, the act of Congress made the
practice of the State the rule for the Court of
S»e*] 'the United States. Unless, then, such
a special rule existed, the court was bound to
follow the general enactment of Congress on
the subject and punue the State practice." 3
Pet. 445, Parsons V. Bedford; 3 Pet. 424,
Parsons v. Armor et al. In Duncan v. The
United States, the court, after reciting the Act
of 1824, ai« still more explicit. "This section
was a virtual repeal within the State of Louisi-
ana of all previous acts of Congress which
regulated the practice of the courts of the
United States, and which come within its
province. It adopted the practice of the State
courts of Louisiana, subject to such alterations
a* the district judge might deem necessary to
conform to the organization of the District
Court, and avoid any discrepancy with the
laws of the Union." 7 Pet. 450. "As the
Act of 1824 adopted the practice of the
State courts, before this court could sanction a
disregard of such practice, It must appear that
^ an exercise of the power of the District
dourt, or by some other means, the practice
had been altered. On a question of practice
under the eireamstaneea of the case, it would
■earn that the dedsion of the District Court as
above made, should be eondusire. Eow can
the praetioe of the court be better known or ea-
tabllshed than by Its own solema adjudication
on tha subject!''^ lb. 4CI, 4S2.
na Act of 1828 Is still more conclusive,
whea taken in connection with tiw decision of
this eowt M tlw PKMMM Aet at ITtt.
f««
Tin order to understand the bearing wUA
the instruction moved for has upon the niiae,
it is necessary to remark that the State of Ohio
was not admitted Into the Union till 1802; m
that the Procesa Act of 1792, which is exprew-
ly confined in its operation to the day of ita
passage, in adopting the practice of the StttC*
courts into the eourts of the United Sta.t«w,
could have no operation in that State. Dut tfaa
District Court of the United States, esUblisbed
in the SUte In IS03, was vested with all tba
poweia and jurisdiction of the District Court ol
Kentucky, wbidi exercised fall drcnit court
jurisdiction, with power to create a practice for
its own government." I Pet, 612.
This decision was made in 1828, and the sa,^M
view was taken five year* afterwards in Duncata
T, The United SUtea. "Nor did the atet
(of 1702) apply to those States which were Bub-
sequently admitted into the Union. But thi»
defect woa removed by the Act of the lIKh of
Hay, 1828, which placed all the courts of Uw
United States on a footing in thia respect, cx-
oept such aa are held In the State of Louisiana."
7 Pet. 461.
This act uses the same terms, aa tiM Proeoas
Act of 1702, in referring *to cases in [*S»T
law, equitv, and admiralty, and ao would not
be applicable to Louisiana; Congress, however,
did not leave this matter open to any donbt;
the fourth section is peremptory: "That
nothing in this act contained shnll be construed
to extend to any eonrt of the United Statea,
which is now established, or which may here-
after be established in the State of Louisiana."
8 Laws U. S. 63.
There is no phrase so potent aa this, "noth-
ing in this act shall be so construed:" it has not
only the effect of an exception, a limitation or
proviso; it is a positive and absolute prohibition
against any construction by the judicial power,
by which the thing prohibited shall be sanc-
tioned. The effect of these words in the llth
amendment of the Constitution baa been ad-
judged by this court to annul all juriBdiction
over cases actually pending therein, past, pres-
ent and future; though toe Constitution had
expressly given jurisdiction in the very case.
3 ball. 382, 383; 6 Wh. 405, 409.
"A denial of jurisdiction forbids all inquiry
into the nature of the case." 9 Wh, 84T.
"The Constitution must be construed as it
would have been had the jurisdiction of tha
court never been extended to it." 9 Wh.
858, g Wh. 206, 207, ei6i 12 Wh. 438, 439.
No construction, therefore, can be put on the
Act of 182B which will make it applicable to
the practice of Louisiana; how, then, thia
court could apply the Act of 1702, in direct op.
position to the subsequent acts of 1804, 1809,
1824 and 1828, was, and is, to me, a matter of
most especial surprise. The provisions of tlie
acts of 1792 and 1828, so far as they refer to
the rules, etc., of courts of law and of equity
jurisdiction, as contradistinguished from each
other, are identical; it was, therefore, perfectly
nugatory to exclude Louisiana from the opera-
tion of the Act of 1SS8, and leave the Act of
1792 in force within that State. It waa worw
than idle; it was a solemn mockery, a legisla-
tive farce, a trifling with the people of thai
State, after a uniform course of legislation, fcr
twaaty-foUT yeara: on ft aobjaet upon which all
isn
LiviRontui's SxccuTus t. Stobt.
m
profile u« poeollftrlj ■inilttTa — their toeal lam,
naagM uii euatoDU.
Aecustomed to tbe elyil Iftw, the llrit Mttlera
of lAuisikna, their deicendents aAd eraigrante
thereto, cling to it, as we of the old States do,
and our ancestori did cling to the common lavr,
aa a cherished inheritance. Had Congreis de-
dared in IS04 what tbii court did in 1B35; or
had there been a fifth ceetion to the Act of
1S28, enacting that the Prooeaa Act of 1792 wai
In force in Louisiana, it may well be imagined
what would have been the atats of public opin-
S*8*] ion. *No such imputation rests on tbe
legistatiTe department aa would b« fastened on
its faith, if in either their first or last act.
In profeaaing to maintain and protect the peo-
Sile in their property, according to the plighted
aith of the treaty of ceaaion, had been to de-
prive ttiem of their laws, and force a foreign
ayatem upon Ihem. Nor for more than forty
fears after the Act of 1792, and thirty years
after the aequiaitioD of Louisiana, had there
been an intimation from thin court that tliat act
applied to the courts of the United States with-
in it, either as a territory or a State of the
Union; the contrary had been declared and ad-
Jndged.
Tn 1S28 it was decided that thte act applied |
ontj to the Stotea then composing the Union.
(1 Pet 012.) The declaration was repeated In
1833 (7 Pet. 461): and to leave no room for
even discussion, this court, at the same time
held that tbe Act of 1824 was a virtual repeal
of all previoua acts of Congreaa on the subject.
(650.) When this caae came up in 1835, it had
been decided by this court that the Act of 1792
never waa in force in the new Statea, and that
K waa repealed as to Louiaiana; the Act of 1S23,
which applied to the other new Statea, was ex-
preaaly prohibited from being applied to Loui-
•iana, yet the Act of 17S& waa declared to be In
foroe then.
If I am capable of comprehending thia de-
oiaion, it repeals five acta ot Congresa; directly
oremilea three previoua aolemn decisions of the
oourt; revivea an act which had been repealed;
extends to Louisiana a law which never applied
to any other new State; and overtbrowa every-
thing which carries with it legiatative or judicial
AutlMrity. Aa a precedent, it Is of the moat
■larming tendency; no question, in m; opin-
ion, can be aettled, if thia waa an open one in
183S. Congress may legislate, and this court
wljudicate in vain, if the acta of the one, and
tbe judgment* of the other, are thus to be eon-
t«isned. iSj respect for both forbida my as-
nent to such a course, or my acquiescence in a
principle which must abaolre judges from their
obligation to follow the established rules of
tbeir predeecsaora, in the construction of lawa,
nnd the aettled course of the law.
Having entirely diaaented from a rule l^d
down by tbw oourt in Qreen r. The Leaaee of
N«al, S Pet. 2BB, wherein the majority of the
sonrt pnt and anawer the question. "Would
■ot ■ wange in the construction of a law of the
United States by this tribunal, be obligatory on
the Stats eourtsT The statute, as last eipound-
ad, would be tbe law of the Union; and why
niay not tbe same effect be given to the last ex-
poaltion of a local law, by the State court!"
• •>*] 'That the principle of legia nosteri-
orm prkffw floatrarins nbiogant is aouno, whan
applied to legialative acts, all admit; hut tt h
an innovation upon all rulea to apply it aa ■
Sneral rule to the expoaition of atatotes which
ve received a settled eonstruction by a cnurt
ot [be last resort. It is an asauntption of legia-
lative power, and a reversal of the establiaocd
Erinciple that judges cannot amend or alter the
kw, but must declare what it ia; and from the
very nature of aud) a rule aa ia laid down in
Giwa V. Neal, the law can never be settled so
aa to be binding on the judges of tbta court, as
is most clearly illustrated in this case.
In 1835 there had been three aolemn ded-
aiona, either of which waa conclusive, that tbe
Act of I7S2 was not in force in Louisiana; and
there had been an uninterrupted course of prac-
tice in the District Court of the United States,
sanctioned by acts of Congress ami this court,
for more than thirty year*. One judge only
diasented in the case of Parsona t. Bedford; but
it was because, in his opinion, the court did not
adhere, with sufficient strictness, to the State
practice. 3 Pet. 452. In the nases in I Pet.
curred in opinion on the very point which
arose at the former argument; and the Act of
1B28 was a direct legislative sanction of tlis
judgment of the court in the former case, be-
ing adopted to cure the defect of the nonappll-
eation of the Act of 1T92 to the new States.
There were but five judges present, who took
part in the former deciaion. two of whom dia-
Bcntedj ao that tbe case WAS determined by only
three judges. I do not mean to aasert thit the
efTeot of a judgment depends on the mere num-
ber of judges who concur in it; but I do assert,
most distinctly, that such a deciaion does not
settle the law. In opposition to three previous
solemn and unaaimoua adjudications. If the
question thus decided remained open, there is,
to my mind, neither reaaon, precedent, nor
principle, to sanction the doctrine that any
Sidge ia bound by the laat deciaion, when he
not bound by former ones. When three laat
decisions can be oveiruled, it Is strange that
one cannot be. The decision of IS33 was the
last, before another was made. The Act of
1792 was then dedared to have been repealed,
and never to have been in force in Louisiana;
yet no respect waa paid to it, or the one in 1830
or 1828; neither of them were thought deserv-
ing of even a passing notice, or the most re-
mote reference to them. The Act of 1828 was
treated in tbe same manner, as alike unworthy
of attention.
*Bad any other department or oOiccr [*400
of the goverument, any circuit or district court
of the United Statea, or any State court, thus
drawn a sponge over theae acts of Congress,
and OUT repeated decisions upon them, it would
have been justly deemed a disregard of tbe con-
stituted authorities.
I freely admit that a eourt may and ought to
revise its opinions, when, on solemn and delib-
erate Gonaideration, they are convinced of their
error. It is often done, though never withont
the fullest investigation; even then, one ded>
sion does not settle the law; when they are eon-
tradictory, the matter is open for future re-
search. There ia no more certainty that a last
opinion is more correct than the first. General-
ly apeakinff, a eoBstrootlon of » law ufareat tbs
Supreme Coitbt or the Utnm StAxn.
lasT
tliiie of ita puiAge ta moat respected, and is ad-
here to, though there may b« doubln about tt,
on'the principle of xtare drcisit. But it <a l>e-
lieved to be unprecedented to consider a aubie-
quent derision that omita any reference to prior
OBM, and from Bome cauae overlooks triem,
though they are In point, and by a. court of the
Itat reaort, as having settled the Ian. If, how-
arar, mch ia the rule, it nccesaarily follows
that it can only remain until another last de-
cision ihal! be mnde, restoring the old law, or
making a new veraion of it.
A judge who, in ISSS, nas at liberty to make
A last construction of a la.w, is certainty as free
In 1837 as he was two yeara before. The very
prlndpie of this case is that rrior dedxions,
ihougn unanimous, are not binding; the next.
In point of time, by a divided court, ean then
be of no more authority, and, a fnrtiori. one
aueh opinion cannot outweigh three contrary
onea, unleaa every last decision has the snioe
effect, whenever a preaent majority may think
fit to make one. To such a principle 1 cnu
oerer yield aasent, unless in the last jitdgment
of this court, all prior ones have been fully
Mntidered; the more especially on such a sub
ject as ia involved in thia case, in which ne
were called on to repudiate the taus of a Shite
of this Union, and substitute thTpFor. hy ju-
dicial power, a system equally repugnant to I lie
habits, the customs, and the choice of the peo-
ple. In introducing into Louisiana thnt purt
of the common law which constitutes the law
and practice of courts of equity, the other part
of the eame system being concomitant, cannot
be excluded; If it li to be done, or can be done,
It ia only by the legislative power.
These were my reasona for dissenting from
the judgment heretofore rendered in this cause;
tbey atill operate on my mind, in their full
force; they are, indeed, strengthened by tne
401"] judgment now 'given, which seems to
me as repugnant to the farmer as that waa to
■II former onea, and the existing tawa.
The controversy between these parties is
respecting real property of great value; the
plaintilT claims it, subject to the payment of a
certain sum of money; the defendant claims it
U his own absolutely, by purchase from the
pUlntiff. pursuant to Kveral contracts made
according to the forma of the law of Louisiana.
The suit was commenoed by a bili in equity,
according to the form of process adapted to
■ucb oourta, and contrary to the practice of
tka Diatrict Court, from the Urst organization
of a territorial government in Louisiana, In
1804, till the Sling of the bill in 1834. Viue
Baeord, Z to 6, 8 to 12. A demurrer was put
in, aasigning two causes. 1. That plaintilT
kad not set out such a caae aa entitled him to
any discovery or relief in any court of equity
In the State. 2. That by the bill it appeared
that the transaction complained of was be-
tween ttie ptaintiff on one side and the defend-
ant and one Fort on the other, whose heirs were
not made parttea (Record p. 7; 0 Peters, 6, 30) ;
that this was necessary by the law and prao-
tiee of Louisiana was admitted. It was not
a matter of mere favor or practice that
the heirs of Fort ahoiild be made parties;
the transaction was a joint one. Story had
purshased from Fort, and paid him a large
nun of money for bb intareat in the property.
To Story, therefore, It waa highly Importaal
that when the original transaction waa to be
unraveled, he should not alone be held an-
swerable to the plaintiff, and be compelled ta
reeonvey, without his partner being compelled
to contribute. By the law of the State, he
had a right to this protection; it was equitkble,
too, that the plaintiff should be compelled to
call into court all the partiea who had been
concerned; to the defendant it was but jaatice
that he should not be put to his remedf
against his associate, and the conaequencea be
vt<ited on him alone. This right to have the
heirs of Fort brought in was absolute, had tba
plaintiff sued in the mode prescribed by the
law and practice of the State; tt waa a enb-
stantial benefit to Story, of which he could
linve been deprived in no other way, than on
abrogation of the established course of proceed-
ing, tlien in force in the State. This was done
by (he court in overruling the demurrer oa
both points: they declared that the Proceaa
Act of 1702 applied to the case, and as the de-
fendant, at the time of ffling the bill, waa the
only person claiming or possessing the pmper-
ly, nune other need be made a party. B Pet.
«58, 859. By the terms of this act, "the
forms and modes of proceeding in suit* in
equity, etc., which 'are to be pursued [*40S
in the federal courts, is not conSned to tlia
mere process employed;" It is to be "aecording
to the principtea, rules, and usages, which be-
long to courts in equity," etc. I Story, 258,
Wlien it la recollected that there is no statute
in England, which deHnes the jurisdiction of
these courts or prescribes their course, tba
whole law or code of equity jurisprudence, la
necessarily made up of its own "principle*
rules, and usa^s," which make it a system, aa
contradistinguished from that which prevnila
in courts of taw. When, too, we look to ite
adoption by the judiciary and proceaa acts. It
is at once apparent that its effects go far be-
yond forms and practice; if it is in force ia
Louisiana, it does not stop at substitnting Ul
English bill for a civil law petition; the whole
law of equity, as a distinct code, neceaaarily
aceompaniea it, by the very words of the A^
of 17D2. So it must have been underabood bj
the court, or they would have directed tba
heirs of Fort to be made a party to "a bill of
equity;" as tbey must have done, had the pro-
ceeding been by petition. On this point their
language is mast explicit in using the very
words of the Act of 1782. "And that in the
modes of proceeding, that court woe required
to proceed accordiug to the principles, riilea^
and usages, which t«long to courts of equity,
as contradistinguished from courts of law." 9
Pet. 655. So, again, "as the courts of tba
Union have a chancery jurisdiction in tvtrj
State, and the Judiciary Act confers the tame
chancery powera on aA, and givrq the saaoa
rules of decision, its jurisdiction in Massachn-
setts (and of course in Louisiana) muat be tba
same as in other States." (SSS.I And if nu
such laws and rules applicable to the case exiat
in Louisiana, then auch equity pnrara must
be exercised aoeording to the principlea, usages,
and rulea of the otrcuit courts of tba Unitsd
States, as regulated and prescribed for tlia eh<-
cuit courts in the other States of the Union.
(860.) There can, therefore, be no miatske in
PetsM 11.
isn
LimmsToii's EsEcunu v. Stobt.
402
couiderin^ thftt the whole Bjateni of EaglUh
equity junsprud^DCB henceforth u the law ot
Loiuiii.aai, both in form and ■iibsUniv (vidr
059), if the judgrnent Srat rendered in Ihis case
ia the Kttled law of the Innd.
Id its present aspect, then, the suit must be
tikan ■■ a hi}] in equity, to be decided on. ami
by the tame principles, rules and usages, wiiich
would form the kw of equitr in a circuit coun
of BDj other State.
Ia lO Tiewini; this ease, then seem to me in-
auperabl* objections to the relief prayed for iii
tbt bill; even on the plaintilTs own sboniiii;.
ftad th« documenta referred to.
40»*] "The Qrat contract between the pat-
ties was, in form, an absolute sale, in July,
1822, for the considpration of tweiity-fivf
thousand dollars; of evea date there wua a de-
feasance or counter letter, alipulating fur a re-
eouTeysiiGe, on payment of that sum In Teb-
mary, IB23, and in case of nonpayment tli(!
property to be sold. In March, \Si3, au
agreement was made, extending the time till
June, stipulating the terms. The sale was
postponed at plaintiff's request, and a new
■greemeut made, whereby he was to piiy Fort
ft Story twenty-seven thousand eight hundied
aad thirty dollars, on the 6th of August, other-
wiaa the property was to be absolute in them.
Mid the defeasance to be cnncelled. so as to
bv any equity of redemption; the declared
intention being, "to vest in Fort i^ Story a
full title, in fee-simple, forever." The plain-
tiff not paying the money, the defeusatioe was
euicelled, and t'oit &, Story remained in the
poiaewion and enjoyment of the property. In
hit bill the plaintiff alleges tliat the original
tranaaclion was a loan of money, for the securi-
ty of which the contracts were executed, and
rests his whole eaee upon that sllegation; he
anra no fraud or unfairness on the part of
Btory or Fort, no ignorance of his rights, of
anj fact or matter in any way material to him,
when the subsequent agreements were made.
Hie only equity is in averring thiit the proper-
ty was worth more than the sum he had re-
ceived, his inability to repay it, owing to tlie
great pressure for money in 1822 and 1823; the
Bonapplieation of eeven thousand dollars, which
■um was to have been expended in improve-
ments on the property; and that it was worth
one hundred and twenty thousand dollars at
Um time of suit brought, in 1834. In such a
eaae, a oourt of equity would look for the
Kltf of the case in the acts of the plaintiff in
rcb, June, and Auguet, 1823; and if not sat-
lafled that the release of all right of redemp-
tkm, and the agreement that the right of Fort
ft Story should become absolute in feeaimple,
waa made in ignorance by the plaintiH, or by
fraud, or impoiilion by the defendant, the
plaintiff could have no standing in court. Ad-
mitting the first contract to have been a mort-
gage, the parties voluntarily changed its nature
OB the application of the plaintiff, his object
was t« avoid a sale, and to gain time till the
pressure subsided; but finding it continuing, he
preferred making the transaction an absolute
sale, rather than expose the property to a pub-
lie sale during the pressure.
If better terms could have been obtained
than were offered by Fort ft Storyj or if the
nivrmcnt ia the bill that it was worth
• L.. ed.
fr-0,OM in 1823, was true. It Is In- {'404
"iliblc that the plaintiff should have been so
■.■^.i^ous of keeping it out of the market, or
hut he would have entered into the agreement
■f Jitne, if he could have obtained a better
irice from others. Re this, however, aa It
my, the mere inadequacy of price ia of no
■onspiiiipnce in equity; courts will never aet
i^ide a contract on this ground, if it is free
Vom all other objections; the OKreementS ttt
.lurch and June were solemn, deliberate, and
M-cuted sccording to the eolemnitee of the
Ml law, and were binding by all the rules and
l^rinciples of the English system of equity. By
' he law, Mr. Livingston was not a minor,
deemed incapable of managing his own affairs;
neither ia ignorance of the law or facts of hie
own case, imputable to him; snd he shows ^
his bill no reason why he should not be bound
l>y his contracts, or why he should have them
uiTiulled.
Ab a mortgaceor in the flret instance, a court
of equity would protect him against any un-
fair release of his equity of redemption to the
mortgagee; yet, if fairly made, it would be as
valid as if he had conveyed it to a third per-
son. So far from any equity arising to him
from the rise in the value of the property from
IS23 till 1S34; it ia, in my opinion, a strong
circumslanca in favor of the defendant, who
advanced his money during a severe pressure,
wlien he could have purchased this property at
auction, at a rate below ita eatimated value,
proportioned to the demand for money, or
have purchased from othera. Thia ground of
relief, however, entirely fails, when we consid-
er the answer of the defendant; he denies the
whole equity of the bill, as well as every alle-
gation on which it rests, the answer ia reapon-
sive to the bill, is full and explicit, and the
plaintiff has not disproved one fact or aver-
ment contained in it, or proved any one matter
averred in his bill. It is distinctly denied
that the original transaction was a loan; that
the property was worth more than the sum to
be paid for its reconveyance, or to prevent »
sale; the non application of the 97,000 is ae-
counted for in a manner which throws on the
Elaintiif all its consequences, and shows it to
ave been by his own acts, and those of the
person for whom be was surety to the defend-
ant. These circumstances alone would take
from him any standing in a court of equity in
England, or any circuit court of a State. An-
other view of the case ia equally conclusive on
1 inspection of the bill, answer, and exhibit*.
Tbe plaintiff did not rest his caite on the
documentary evidence; he averred the trans-
' ' been different from what was
.he written agreement, [*40ft
and called for the eid of a court of equity to
compel the defendant to ilisclose the real nature
and character of tlie original contract, and the
true intention of the parties, on his oath. Bjr
this, he made the answer to the bill and inter-
rogatories, evidence; it is directly reaponaive,
full, and positive, and supported by evidence
of the most aatiKfactory kind-, the written ap-
plicntion of tlie plaintiff's agent to Fort ft
4M
Senna Coon or thi Umm Btaixb.
MIT
wu Bothlnr tn the eaae which could vary the
tenu of the writing. The only original eon-
tract wat, then, the conTeyance; and the de-
feuanoe, or counter letter, taken in connection
as one agreement, the terms of which ahow its
legal character to bp a conditional &ale, and not
a mortgage, when tested by the rule* of equity
as recognised by this court.
To make auch a transaction a mortgage, it ti
(ndiepensable to show that the party recelTing
the money was bound to repay it unless it
elearly appears, from the evidence, that a loan
waa intended, and that the form of a sale waa
adapted as a cover for usury. The principal
and interest must be secure; then must be a
remedy against the person of the vendor or the
borrower and clear proof that he waa liable,
7 Cr. 238, Z3T; 9 Pet. 44fi, to 454. H it is
not proved by eitrineie evidence that a loan waa
intended, and the party bound to repay it, it
matters not how eitravagaat the terms of re-
purchase may be; the redemption must be on
tlie day stipulated, or the estate vests absolute'
ly, if the principal was at hazard. lb. 455,
4BU. Inadequacy of price is not a circumstance
which will convert a conditional sale into a
mortgage (7 Cr. 241), and if the party makes no
claim to the property while the other is in pos-
se ision, making valuable improvements on it
without any notice of an Intention to assert a
right of redemption, a court of equity will not
aid him. 7 Cr. 240.
In the counter letter Mr. Livingston Is not
bound to repay the money; Fort &, Story bad
BO remedy against him; had the property sold
for, or been worth leas than the sum ad-
vanced, the loss was theirs. There is an aver-
ment in tbe bill that the plaintiff was liable;
but it is expressly denied by the answer, and
the plaintiff has not oSered a spark of evidence
to contradict it; the protest made in August
was not to found an action, but was made as
authentic evidence of the fact of nonpayment,
and to aitence the pretensions of the plaintiff,
as ia expressly sworn to in tbe answer, Beo,
400*] jp. 19. It *is also positive as to thi;
value of the property at the time and after-
wards. "This deponent was repeatedly of-
fered, after 1S23, by John A. Fort, the hat! of
the property at coat and charges; which he re-
fused, considering the property not worth it.
[t has been only the rise of all property in that
part of the city where it is situated, tbat has
saved them from loss." Reo. 22.
Bhould it be thought worthy of inquiry, why
they should pay for the property more than it
was worth in 1S22 or 1823, the answer is at
hand. By the contract, eight thousand dollars
of the money was to be expended In improve-
ments, which would have been so much added
to the value of the property; the plaintiff was
security that this sum should be so applied by
Rust; trusting to this guaranty (vide Record,
29),, Fort &, Story advanced the eight thousand
dollars to Rust, who misapplied it in the man-
ner stated in the answer to the interrogatories
of tbe bill. (Record, 22.) In the answer it is
also stated that ptaintiH represented that a
Juantity of joists and iron work had been
onnd for the buildings then erecting; but, on
inquiry, defendant found they had not been
Eaid for, and he and Fort had been compelled
I purchase them at a coat of one tbousand three
7«a
hundred and seventy doHars. This anm. added
to the aeveu thousand dollars misapplied bj
Rust, was a diminution of the value of tb«
property more than eight thousand dollars be-
low what it would have been it the plaintiff
had fulfilled bU guaranty, and made good Id*
representation; and the work done would be
worthless nnlee* the buildings had been nutde
tenantable. Fort A, Story had no option bnt
to aubmit to this loss, inasmuch as they Iiad
confided in the ptaintilT that he would do what
he bad engaged to do, without holding him
personally bound to repay them the twenty-five
thousand dollars; eight thousand three hundred
dollara of which waa lost to them in the nuui-
ner stated. To save themselves, they were
thus compelled to advance this sum to put thf
buildings in tbe state they were stipulated for,
when tltey made the agreement. Under sodi
circumstances, no court of equity could hmre
considered the transactioD a mortgage, or tbe
plaintiff as entitled to any relief.
On another ground, the plaintiff'a ease -waa
devested of all aemblance of equity. Ue had
laid by eleven years, after be had voluntarily
c>noelled the counter letter, and surrendered
the property by an absolute title in fee simple;
daring which time he had given no notice of
any claim on his part, or any intention to aaaer>
a right of redemption, while Fort t Story, to
his knowledge, were making costly 'im- I"40T
provements, under the full belief that thej
owned it, as the plaintiff had enlcmnly engaged
that they should own and hold it. He waited
till all risk waa out of the question, when the
speculation was a certain great one; and. in
his own good time, comes into a court of equity,
demanding a reconveyance, and olTer* to nHoni
to Story five per cent, per annum for the us«
of his money: but refusing even to make tbe
beira of Fort a party, though the plaintiff
knew, and stated in bis bill, tbat Story, relying
on his contract, had purchased out his intereet
at a large advance.
For this delay the bill assigns no reason or
excuse, nor can any be found in tbe whale
record; none has been offered in argument,
none can exist to which any court of equity
would listen, while it respected the principlea
laid down by this court, at the same term i>
which this cause was first before it.
"A court of equity, which is never active in
relief against conscience or public convenience,
has always refused its aid to stale demands,
where the party slept upon his rights, or ac-
quiesced for a great length of time. Nothing
oan call forth this court into activity, but con-
science, good faith, end reasonable diligence.
When these are wanting, the court is passive^
and does nothing; lachea and neglect are al-
ways discountenanced, and, therefore, from
the beginning of this jurisdiction, there was
always a limitation of suits in this eourt. The
same doctrine has been repeatedly recognised
in the British courts, as will abundantly ^-
pear from the cases already cited. It has alio
repeatedly received the sanction of the Ameri-
can eourts, etc And It has been acted upon ia
the fullest manner by this court, eapedallf
in," etc. Piatt v. Vattier, B Pet. 416, 417.
With submission, then. It must be asked,
why this principle should not be applied to this
cMet There can be none which calla more loud-
PMWSll.
im
IrimraaToir'a Exxcuniz v. Stobt.
407
If for It; It It ■ fundjimenUl rule bj vrbich ill
Murta of equity Kct; It U an eBH^ntial p«rt ot
thit ajritem of equitj which, In this rerj can,
thi« court two years ftso held to be in Jorce in
Loulaiana, as well in the principles and rules
«f decision, aa in niatters of practice, fumish-
ing the law of the case, in place of the local
law which was then suppressed. In Louisiana,
t«n years is a positive bar by limitation, when
the law is applied; the principle of analogy,
therefore, would apply to a shorter period than
in other States, where the time of limitation is
twenty years. In such a case, and circ
staneed as this case Is, the lapse of eleven
years, wholly unaccounted for, would be as
fatal to the plaintiff's claim in any court of
408*] equity *in England, in any of the
States, or In this court, as if it had continued
tor any period however long. The same (ques-
tion may be put as to the rules and principles
on which equity acts, or would act, in annulling
contracts like those of March. June, and Au-
£it, 1S23; also as to the established rules in
siding on what is a conditional sale, or mort-
gage, as likewise declared at the same time. 0
Pet. 445, etc.
One answer has been given to all questions
which can be put, if this case is to be decided
by the English system of equity jurisprudence,
at adopted by the Process Act of 1702, and de-
clared to be ■ part of the law of Louisiana in
1835. It is' now most solemnly adjudged that
this case is not to be determined by "the princi-
ples, rules, and usages, of courts of equity, as
contrndiBtlngulshed from courts of taw;" that
it depends on, and is governed by the Louisi-
ana law of antichresis or mortgage; by which
no length of possession, no amount expended
i* improvements, no laches of a mort^ageor,
however incompatible with every principle of
common justice, or English equity, can bar a
redemption without a sale. Nay, this law by
the decree as now mads, declares Mr. livlng-
iton to be a minor, under a pupila^ to strict
that his contracts in relation to this property
■r« mere paper and packthread; ana his
pledged faith that Fort ft Story should hold
•nd enjoy it. Idle wind; because no sale was
Bade, on account of his repeated and most ur-
gent efforts to prevent It. He, too, the distin-
guished Jurist who revised and compiled codes
for Louisiana, and was deeply versea in all the
details of its laws, asks this court to give him
the benefit o( this law of antichresis on the only
ground on which it can give him a decree for
property, without irretrievably compromitting
that whkh ha deemed far more valuable — his
eharacter.
Fort fc Btory did not intend to pay their
money on ench a contract aa an antichresis.
Mr. Lirlngaton did not intend to mislead or de-
ceive them by persuading them to wajve a sale,
which, under such a contract, was Indispensa-
ble to bar his right of redemption; be did not
cancel the counter letter, and pledge himself
that bis equity of redemption was forever ex-
tinguished, Im owing that the law incapacitated
him from doing it. Fort A, Story never con-
templated that their only right to the property
was only a pledge upon it for their money and
legal interest; nor could it have entered Into
tbelr minds that by Indulging Mr. Livingston
In aivoidlag • pubUe tale, the/ were thereby
t K ed.
giving bim the sole benefit of their ca*rital. ex-
pended in tbe 'purchsse and Improve- [*40l
ments, as well as the appreciation in value of
the property. That an antichresis was ever in
their minds cannot be pretended, or that he
knew that the contract was of that nature, and
when the property rose to a sufficient value,
while he held out to Fort ft Story that their
title was perfect, it incredible. He must have
been as ignorant of the law as they were, and
both have intended the transaction as a eon
ditional sale; in such a case, a court of eqnitj
would so reform the contract as to make it
conform to the real intention of both parties.
On the other hand, if they intended the con-
tract to be a conditional sale, and he Intended
it to be a mortgage, there is a fatal bar to
this ease.
It was laid down by this court in 1836 that
where the contract was In terms a conditional
sale, it would not be turned into a mortgage or
the money be deemed a loan, unless the inten-
tion to do so was mutual. 9 Pet. 450. That
it was not so In this case, Is manifest from
the conduct of the defendant, and Lis positive
oath in his answer, which decidedly negative
any mutuality of intention.
There are, then, the following distinct
grounds of defense, on equitable principles, to
the plaintiff's bill: 1. He has failed in adduc-
ing any evidence, competent to vary the terms
of the original contract. 2. He has shown no
ground for annulling the subsequent contracts,
or why they are not binding on bim in equity.
3. Ail the averments in the bill are positiveir
denied by an answer directly responsive, which
remains uncontradicted, without an attempt to
disprove any part of it, or to support tbe bilL
4. The plaintiff was never bound to repay tbe
money, and the defendant incurred the whole
risk of a depression in the value of the prop-
erty. 6. The defendant never intended t« en-
ter into a contract of loan or mortgage. 6.
The plnintiir is barred by the lapse of time and
acquiescence, without notice.
If, then, the decree of this court, at this
term, had been rendered in accordance with
lliose "principles, rules, and usages of a court
of equity, which they adjudged two years be-
fore to be the law of the case, the decree of the
court Iwlow must have been afBrmed; yet is
now reversed, because the local law. which was
wholly repudiated then, is applicable now.
Herein there seems to me an utter discrepancy
between the two decrees of this court. In 1836
the practice and law of Louisiana was displaced
by the practice and law of equity, by tbe rules
of which the demurrer wus overruled, when
it must have been sustained if the Act of I7B2
had not been in force in that 'State. In J*4]0
1837 the forms and modes of proceeding in
equity are retained, which deprive the defend-
ant of the benefit of the law of the State com-
pelling a plaintiff who sues for the redemption
of mortgaged property, according to the law of
anticliresis, to join all the original parties; la
equence whereof the plaintiff retained hit
standing in court, which he must otherwiM
have lost. The law of equity having thiu per-
formed its appointed office. It, In its turn, dla-
placed b* the State law, and ceases to be ft
7«t
iltt
BurBXUK COUBI OP TUX UlHTtD &IATU.
U»
rule ot decUton; the Uw of ■ntichretU ii then
brought in, to perform the finul oince of annul-
ling the coatmcts of the parties; taliing the
property from the defendant and awarding it to
the plaintiff. Now, if the law of antichretia
muat govern this case, it is by sheer, dry, legal
right; as destitute of any eouity a« it is con-
trary to its moet sacred prindples, when ap-
plied to such a case as this; by every rule of
its action, ecjuity calU on the plaintiff to show
"conscience" in his claim, "good faith" in bis
conduct, ftod reasonable diligence in purauing
faia riehta, before it moves one step. Let the
record answer how these calls have been met.
In his bill, the plaintiff holds the defendant to
the most atrict ruica of accounting, as a trustee
or agent-, he offer* to pay legal interest (which
is five per cent.) on the money due in August,
1823, say twenty-eight thousand dollars, which,
for eleven years at the time of filing the bill,
amounts to fifteen thousand four hundred dol-
lars; to that defendant would be entitled to a
credit, in account, ot forty-three thousand four-
hundred dollars, from which must be deducted
twenty -nine thousand seven hundred dollars,
be had received for rents up to 1S29 (Record,
SO), and at the rate stated he would be indebted
to the plaintiff in 1S31. The plaintiff would
Uien regain a property stated in his bill to be
worth one hundred and twenty thousand dol-
lar*, and by Mrs. Fort to be two hundred
thousand dollars, and by the use of the defend-
ant's money; while Story is left to seek his
remedy against her for the fifty thousand dol-
lars paid her in 1S32 for her share. In his of-
fer, the plaintiff omits any credit to the defend-
ant for taxes on the property or compensation
as his bailiff and receiver, for collecting the
rents of the buildings erected with his own
money, as it now seems for the plaintiff's use,
on an interest of five per cent, in New Orleans.
This la the conscience of the case. Its ^d
faith can be ascertained by the stipulations,
and solemnly declared intentions of the plain-
tiff, in the contracts of March and June, IB23
tRecord, p. 27S) ; the cancellation of the counter
letter; and after an utter silence for eleven
fesrs, then, fur the first time, asserting the con-
411*1 tract to be *an antichresis, with a per-
Eetual right of redemption, till a sale was made
y it* authority. Reasonable diligence would
aeem to coniist in the plaintiff's pleasure;
eleven years must be held not to be "a great
length of time," under the circumstances of
this case; or the utter silence, snd want of
notice for this period, must be held not to be
an "acquiescence" in the defendant's right. It
has been a truly fortunate lesult for the plain-
tiff, that with ft case not sustainable by either
tha practice or law of Louisiana, or by the rules
and principles of a court of equity, separately;
he has been able to attain his object at one
term by one law, and at another term by the
other; so happily applied as to meet the exigen-
cies of his case at both terms. Had the one law
been made the rule of decision on the whole
case, I might have acquiesced in the result; as
it il, I am constrained to dissent from the
whole course of proceeding, as in my settled
judgment, in direct conflict with the acts of
ingress, as well aa the repeated and most
^lemn adjudications of this court.
I hav* mit examined into the law of anti-
IIO
chresU in Louisiana, for the want of the necei
sary books; conceding, however, that it is as
the court haa considered it, it gives the plaio-
tiS a sheer legal right, for the violation ol
uhich a court of equity ie not the proper forum
to resort: the right being in contravention of
the fundamental principle of such courts, tba
remedy must be )n a court which decides by
the rules and principles of the civil law, ta
which code alone such a contract is known.
There is one other matter, on which I aln
dissent from the opinion of the court, which
has too important an effect on the rules of
pleading and practice in suits in equity to be
passed unnoticed; and is in my opinion a dan-
gerous innovation, unsupported by principle or
From the preceding view of thi* case, tt h
apparent that if Mr. Livingston had been a cit-
izen of Louisiana he could have sued only io
the court of the State; his proceedings most
have been according to Its practice and laws,
by which he must have made Mrs. Port a party.
Admitting his right to the property to be what
this court have held It, it would have placed
the defendant in a very different position from
that in which he now stands, witliout the least
injury or inconvenience to the plaintiff, Mrs.
Fort would have been compelled to refund the
rents she had received, which, by the decree,
the defendant must pay: together with tb*
fifty thousand dollars she received from him,
with the accruing interest, as well as the lou
sustained by receiving only five per cent, oa
their capital, and prohaMy 'paying to 1*411
banks eight or ten per cent, as is usual m Or-
leans. Vide 3 Wheat. 146, By suing in a
court of the L'nited States, the plaintiff, by the
aid of the Process Act of 1TB2, has protected
Mrs. Fort, and thrown the whole loss on Mr.
Story, leaving him the chance* of a suit with
her, in place of the certain remedy that a
State court would give him. To him it was
no matter of form, prartice, or mode of pro-
ceeding, whether he ivns sued in the one or the
other court; it may be that his whole indem-
nity from Mrs. Fort depended on it: to the
plaintiff it mattered not. so that he obtained
the benefit of the law of antirhresia. which tbt
State court was bound to cdminister, as mncli
as the court below n-ns. The measure of jus-
tice to him WHS the same in both oourts. It
was by being a citizen of New York that thU
court enabled the plaintiff to overrule the de-
murrer; by the application of the Process Act
of 1702, the law of the case was changi^. ••
thnt it was a most important fact in its besr-
ing on the merits of the cause, not one affect-
ing the former mode of proceeding in the suit.
j It was averred in the bill that the plaintiff w»«
a citizen of New York; the defendant, in his
answer, says "that he does not admit, but if it
be the fact, requires proof that the complainant
is a citizen of the State of New York; thai
at the time of the transaction mentioned In tbt
bill, and for a long time thereafter, he «*• a
j citizen of the State of Louisiana, ard one el
I her senators in the Congress of the United
' Slates; and if he has censed to be a ritir.m «(
!t1)St State, the defendant knows not when, or
how, and calls for proof." Bee. 16. To thi*
I part of the answer an exception was mads, b*-
I cause the objectloi came too UU after a '-
■ n-
irat
LiTtRoMoit'i ExtcuTluz V. Sitifti.
m
nrarrer had b«eit OTrrrnl^d. Beo. it. The
exception via overruled (36) and the general
Implication wkb filed. On the bearing, one d^po-
■ttion wa* Tfsd on the part df tlie plaintiff to
Srove the fact: but in m; opinion it failed to
o BO. Thisi however, waa not deemed ma-
terial by the i?ouTt, who lipid that the aver-
ment of citizenship could be oontroverted in
DO other wa; than b; a plea in abatement and
thkt not having done lo, the defendant was
too late in reserving the denial till he answered,
applying to the cose the aaine rule which pre-
vails aa to pleat to the jurisdiction of a court
of equity.
tw thit b«en a suit by petition, according
to the practice of the State, a denial of the cit-
IxenBhip or alienage tauld have been made in
tha answer, after a plea in bar, and the cause
ordered for trial ; It n as so decided by this
miirt in 1833, declaring that "the courta of
Ijouisiatia do not proceed by the rules of the
413*] common law;" "their 'code ii founde<l
on the civil law, and our inquiriea must be
confined to iti rules." 7 Pet. 428. This plea
waa offered after issue joined on a plea In bar,
and after the argument had oommenced. The
court might admit it, and the court might also
reject it. It was in the discretion of this oourt
to »I1ow or reject this additional plea lb. 432.
In 1 Pet. B12, it was d«!ided that a district
court in a new State had "power to create a
practice for its own government." The prao-
tioe of tfae State courts adopted hy the district
judge of Lou'isiana, baa been always recognized
by this court and acted on. 6 Pet. 108; 7 Pet.
429, 430; B Pet. 303. In Brown v. Keene, this
very objection was taken in the answer and
considered by the court. 8 Pet. 112, 115.
Such being the established praclice of the
court below, sanctioned b; this court and the
Act of 1824, the plaintiff would have been
txmnd to prove this averment, and considered
himself so bound by the attempt to do it; but
this court baa relieved him by expunging the
State practice, and substitutiuK what they as-
■ume to be the equity practice of courts of
chancery in England. The consequence of
which is that the defendant is not allowed to
deny by hia answer a fact averred in the bill,
unless by a plea in abatement, in which he
takes upnn himself the burden of disproving
it: of cuurse, if he fails tn doing so, the aver-
ment must 1>e taken to be true, without any
proof offered by the plaintiff to sustain tt.
That this decision of Ihu court tt ts repugnant
to its own principles often declared, and to the
rulea of pleading in equity cases, a* It la to
the recognized practice of the court below, ia
clear to my mind.
Bj the I8th rale prescribed by this oourt,
"for the practice of the courts of equity of the
United States," "the defendant may at any
time before the bill is taken for confessed, or
•iterwards nith the leave of tbe court, demur
or plead to the whole bill, or part of it; and he
m^T demur to part, plead to part, and answer
to tka residue," etc. T Wheat, iz.
By the 23d rule, "the defendant, tnatead of
flUng K formal demurrer en plea, may insist on
any apecial matter in hia answer, and have the
aftme oeneflt thereof aa If he hAi pleaded the
•MM natter or had dannned to the UlL" lb.
■ i4.«a.
When this case was before this court two
years sgo, this was their language: "It ia an
estaliMshed and imivfr-al rule of pleading in
chancery that a defendant may meet a com-
plainant's bill by seveial moiles of defense.
He may demur, answer and plead to different
parts of a bill." 9 Pet. KS. Such were the
rules of equity then.
'There must have brten a great [*414
change in equity practice &ince, if a defendant
may not now deny in his answer any averment
in the bill, or call for proof of any fact averred,
as to which he has not sutTicicnt knowledge, to
be safe in admitting or denying it.
When he answered this bill,, there was no
rule of this or any court of equity by which
the averment of citizenship was exempted from
the special rules of this court, or "the estab-
lished and universal rule of pleading in chan-
cery:" it was not a privileged allegation, but
like all others material to the plaintiff's stand-
ing in court, he was bound tu prove it when
called on by an answer, which did not admit,
or put it in issue by a denial. It is bard, in-
deed, on the defendant, that he tiilfors under
the adaption of a rule unknown to the law or
practice of equity; when he put in his answer,
his counsel looked to the existing rules, after
he found that the rules of the State practice
had been superseded-, and mui<t have felt safe
in following those which hod been laid down
as universal, in that opinion whi;h fastened
the equity code of Enjiland on the State and
people of Louisiana. They had a right to con*
fide in its future administration, according to
the rules and principles promulgated by that
tribunal, which by ila own powi:r imposed it
on them. It has been held by this court for
more than forty years that an express aver-
ment of citizenship is necessary to enable a
citizen of one Slate to sue in the federal court
of another; that It la a special privilege, con-
ferred by the Constitution and the Judiciary
Act, to which the plaintiff must show hia right
by the record ; that the averment must be posi-
tive, and not in the alternative (S Wheat. 112);
that it must be in the body of the bill, and doea
not aufflce that it is in the title or cap'ion;
that it is not only a fatal defect after s final
decree, but is deemed so important that the
udges feel bound to notice it, though counsel
do not. 8 Pet. 148.
When the whole action of a court of equity
I a bill, which docs not, in its body, contain
lis averment in positive terms. Is thus a mere
illity, and a final decree does not cure the de-
fect; it ia a most strange conclusion that it can-
not be denied by the answer, or the plaintiff be
put to its proof; that aa one of the allegata of
the bill it IS indispensable, while as one of the
probata, it is immaterial. Aa the defect goes to
the jurisdiction of the court, it would seem
consonant to reason as well as to law that if
the averment of the fact was material, its
truth was equally so; yet if the doctrine of
the court is sound, the defendant cannot put
the plalntilT on proof of it, or make it a mat-
ter in issue on which he can adduce negative
evidence. By 'putting the defendant to [*41B
his plea In abatement, the court seem to me to
have overlooked its requisites. Buch a plea
must be on oath, and It must give the plain-
tiff a better writ or bill, by pointing out how
TTl
SunBm Coim or tm> tlnm SrAm.
IStT
h» oiubt to me: ineh are lU rcquiaitw in ft
mift at law or equity. 1 Dky*! Com. Dig. 161;
1 P. Wme. 477 1 fieunes, 98, B3; I Vei. Sen. 203,
£04.
The raquisitea of'm^ plea* in equity an
overlooked. A plea must let up matter not in
the bill; Mme neir fi>ct ai a reaion why the
bill ahould be detajed, diimisied, or not an-
awer«d, or the plea will be overruled. Hit.
ITT, 1701 Beamea, 2, 7; 2 Uadd. R. M6, Am.
Tbe nature and affect of a plea to the iuria-
diction of a court of equity are alao wholly
misapprehended. It doet not deny the plain-
tilTa right to relieF, or that the bill does not
contain matter proper for the cogniMoee of a
court of equity; but It is made on the ground
that the Count of Chancery is not tbe proper
one to decide it: it admita the juriadietJon '
equity, but asserts that aome other court t
afford the reined}'. Mit. 180; Beamea, ST. Thia
mutt be done by matter set up in the plea,
because the Court of Chaocery, being one of
general jurisdiction in equity, an esception
muat be made out by the party wbo claims an
exemption, In order to arrest its jurisdiction.
Hit. 180; Beanies. 67, 91; I Vent. 69; 2 Vem.
483; I Ves. Ben. 204. This objection must be
by plea, and cannot be taken by demurrer: it
must show what court has cogniEtince of the
ease; that it ii a court of equity, and can give
the plaintiff a remedy: if no circumstance can
give jurisdiction of the court of chancery, then
no plea ia necessary; a demurrer ia good. Mit.
123, 124; Beames, 100, 101; I Atk. 644; 1
Saund. 74; I Dick. 129; 3 Bro. Ch. 301; 2 Vea.
Sen. 357.
From this view of a plea to the jurisdiction
of the Court of Chancery in England, it must
be manifest that there is and can be no analogy
between ite jurisdiction and that of a circuit or
diitrict court, sitting as such; tbe former being
genera], attacbe* to every case not brought
within an exception, by matter specially plead-
ed, showing that the case is cognizable in some
inferior court of equity, competent to give the
relief prayed; the latter is special, and limited
to the cuaes specially enumerated, within which
the plaintiff must bring himself, by averment
and proof of tbe necessary fact. A denial of
thia fact does not oust an existing general
jurisdiction; it puta in issue the only fact
which can give the court cognizance of the
eaae; no fact or matter not in the bill, ia set up
by way of avoidance or delay, or as a reason
for not answering; nothing is put in issue
ilfl*] *but the truth of the allegation, in
which the plaintiff elaims a right and privilege
denied to the citizens of Louisiana. He hat
claimed, and the court have granted him a
much higher privilege than that of merely su-
ing In a federal court; he is exempted from
the obligation of suing, according to the law
and practice of the State; the benefit of the
equity code of England is given to him, and the
defendant deprived of the right secured to him
by the law of the SUte— that of having the
heirs of hie former partner made a party. The
plaintiffs privilege ia the defendant's oppres-
•ion; the plaintiff is a favored suitor; not be-
oauae he !s a citizen of New York in truth
or in fact, but merely because he lays in his
bUl tkat tM la, and the defendant moat submit
911
to all the eonseqiienou of the averment bciag
true, tmleaa he will also consent to nndei^o
the perils and Inflictions of a plea in abate-
ment. We have seen what its requisites are,
now let them be applied to this case, and tiie
consequences of such a plea. It must be on
oath, the fact is not within his knowledge;
he swears to a negative of a fact asserted in
the bill, whereby he is compelled to incur the
risk of perjury. As pleas In abatement in the
Court of Chancery are governed by the aaue
rules as in a court of law {1 Vea. Sen. 203;
Beames, 30, 90), there is another rule worthy
of notice: "If the plaintiff Uke issue on a
plea in abatement, and it be found against tbe
defendant, then final judgment is given againat
him." 2 Saund. Ill, a, note 3, and cases cited.
He must therefore incur the danger of a final
decree against him. if he does not make out his
negative issue. His plea must be overruled,
bemuse it seta up no matter not in the bilL
He must give the plaintiff a better writ or bill,
by showing that some other court of equity has
cognisance of the case. This is impossible ia
Louisiana, in which there is no such court.
His plea is then bad. because he cannot cumply
with the requisites, unless it is incumbent on
him to do it in the only possible way left him.
He can set up new matter by averring that the
elaintiff is a citizen of some other State thaa
ew York or Louisiana, and thus give tba
plaintiff a better bill; but then tbe same court
would have jurisdiction, so that the plea would
be nugatory, and subject the defendant to all
the consequences which he sought to avoid-
The reason given for the rule of pleading, ii.
chaocery, shows its entire inapplicability to a
suit in a federal court. "The reason of this ia,
that in suing for his right, a person is not t<>
be sent everywhere to Took for a jurisdiction,
but must be told what other court has jurisdic-
tion, or what other writ is proper for him, and
this is matter *of which the court, where[*4 1 7
the action is brought, is to judge." 1 Ves.
Sen. 203. The plaintiff knows his own roai-
It would be the most perfect anomaly in
pleading to draw up a plea to tlie jurindiction
of the Court of Chancery in tlie English form,
and apply it to a bill in equity in a circuit court
of tbe United Slates, so aa to meet tbe aver-
lent of citizenship of the plaintiff, according
] the present decision of this court. Its exhi-
ition to an equity pleader in Lincoln's Ina,
ho would read our Constitution, the Judi-
ciary Act, the rules and decisions of this court,
would not fail to cause him to admire it as an
iiprovenient in the science of pleading. For
lyself, I am utterly unable to comprehend
that the denial of an averment of a fact in a
bill can be deemed a plea of any kind, unleaa
the general issue, or a special issue on that
: to be a plea in abatement, or in bar, every
rule of pleading in law or equity requires that
It should set up eome matter not in the biX
And I can imagine no greater departure from
the practice and principles of equity, than to
deprive a defendant of the right of denyins a
fact atated in the bill, unless by exposing him-
" to the perils, and incurring the eonae-
quences of a plea in abatement. If the daei-
now made remains the law at tha eourt,
rule must be carried out to all its conse-
1837
taB Cbaius Rivbb Bbidok *. The WAauBR Budge kt a
417
Siencea. Eqnttf plcftdla^ b k adMiee; its tat-
ed nileB form bd admirable •yHtem, but an
itmovktion upon them would produce the moal
crying injuitipe. To my mind, there euinot
be m caae which can more lorcibly illustrate the
dkngeroiM e/IectB than the preaent; when the
record ia examined, and its judicial history
compared, throughout its progresE to its pres'
ent state, with the acts of Congress, the rules
of practice, and decisions of this court.
For these reasons, I fed oonstrained to
prosa my dissent to the whole course of the
eourt tB this case: whetbet it is tested by the
practice and law of Louisiana, or the English
system of equity, it Is an entire departure from
both, ff I can understand either. The transi-
tioa from the one system to the other, in the
different stages of the cause, each operation to
the manifest prejudice of the defendant; tends,
in my opinion, to the worst of all consequences
— utter uncertainty io the administration of
the law in Louisiana. If the legislative oi I
did at authority of the Union could command
Miy respect, the Process Act of 1792 never did
or could apply to that State: if both are over-
ruled by one decision, it cannot be expected
that the solemn adjudications of this court will
hereafter be deemed better evidence of its rulea
of practice, or the principles of equity, than
418*] they have been *in their Wring on
the present case. My opinion on the general
equity and merits of the case is as much at
variance nith tliat of the court as it is on the
•ubjects to whicli my attention has been m
ly directed: 1 have forborne an examination of
this part of the case, for obvious reasons.
Whether the property in tiucstion, however val-
uable, shall be held by the plaintiff, or defend-
ant, is ■ matter of small concern, compared
with the consequences which must follow from
the decrees rendered, If the opinions and rea-
soning of the court must henceforth be taken
as the established law.
This cause came on to be beard on the tran-
script of the record from the District Court of
the United States for the Eastern District of
Louisiana, and was argued by counsel; on con-
sideration whereof, it is ordered and adjudged
and decreed, that the decree of the said District
Court, dismissing the bill of the complainant,
be, and the same is hereby reversed and an-
ntUled; the court being of opinion that the
transaction of the 25th of July, IBZ2, between
John A. Fort, Benjamin Story, and Edward
Livingston, was a loan to tha said Edward Ut-
bereby further ordered, adjudged and decreed,
that the cause be sent back for farther proceed-
ings in the court below, with directions that
the cause be referred to a master, to take an
account between the parties. And It Is hereby
further ordered, adjudged and decreed, tbat
In taking said account, there be allowed to the
defendant all advances which shall be shown
to have been made by him, or paid on account
of the loan made to Edward Livingston, on the
esth day of July, in the year 1822, with the
interest which the said Edward Livingston
agntd to pay, of elf^teen per cent, per an-
nnm, t« be calculated npon cash advances,
from the time It was made natil the 6th of
f L. •«.
August, 1823, snd after tbat time, at legal in-
terest. And further, that in taking said ac-
count, the defendant be allowed all reasonable
expenditures made by the defendant, and John
A. Fort, in building, repairing, and safe keep-
ing of the property pledged by the said Edward
Livingston, to secure the loan made to bim on
the 26th day of July, IB22, and that the com-
plainant be credited in such account with all
such sums as the defendant, or John A. Fort,
or either of them have received from the said
property; and that, in taking such account,
the rents end profits be applied first, to the
payment of the sums necessarily incurred
*in building and repairing. Second, (*4I*
to the payment of the interest on the sums
which shall appear to have been advanced oa
the said loan, or in the improvement of the
lot. And third, to the discharge of the princi-
pal of the said loan. And if, on taking said
account, it shall appear tbat there is a balance
due to the complainant, it is hereby further or-
dered, adjudged and decreed, tbat the defend-
ant pay to the complainant such balance, with-
in six months from the time of entering the
final decree in the cause, and shall surrender
and reconvey the said property to the com-
plainant, or such pi^rson or persons as shall be
shown to be entitled to the same. And if,
upon the taking of said ai:count, it shall be
found that any balance is due from the estate
of the said Edward Livingston, deceased, to the
defendants, it is hereby further ordered, ad-
judged and decreed, that on paying or tender-
ing to the defendant the said balance, he shall
deliver up the possession, and reconvey to the
person or persons who shall appear to be enti-
tled to tbe same, the property so pledged, to
secure the aforesaid loan. And it is further
ordered, adjudged and decreed, that in case a
balance shall be found due to the defendant,
and shall not be paid within six months after
a final decree of the District Court, then the
said property shall be sold at such time and On
such notice as the said court shall direct; and
residue thereof be paid to the complainant.
Note. — Mr. Chief Justlee Taney having bi
counsel in this eanse, did not sit in the same
State law devesting vented rights not necessa-
rily unconstttutioMul — public grant to be con-
strued strictly— a ferry right of Harvai-d
College extinguished by grant of charter to
Charlestown Bridge Company— contrwst
that State would not charter another bridge
company to injury of first not to be Im-
plied.
Wn to Boslan, pasalni over Cbarles Hlnr. The
Tight to set up a feirr between tbeu places bad
1 _. — jy Q,, (ovenior, andcr thf aftborltv
BuFBuiK CouiT or TSK Unimt Btati
■BIT
_ _fCP^*lTelJ to olliprs. the
bBTlDI tbe priTlIree of taklUB toll* retulitrd In
Itrrj waBRranlrO to tlie collDee. tbe rlgbu ol tbe
(h« collrcc coDtlPiied ta bold tbe terri by Its tei-
Be». tad reorlve the proflts Ihererrom until 178^.
wbrn tbe Legislature a( Magsacbuaetta tDCorporat-
ed ■ comfianj to build a bridge over Charleii ^Iver
where the ftrrj- stood, gianttng tbem tolls: thP
CMnpaoy ro pay to Harvard College two hundred
pounda n jrar duilnx Ibv charter, lot fortj jt»ra,
bridge was to bfcome the propertj
The lii'IdKe was
tbia charter, and the corporatlou received the tolli
Blloned by tbe law : aluays keeping the bridge In
order, and perlormlnic all that was eDlolued ou
(hem to do. In ISllS the legislature or jlauachu-
acUa iDcorporated aootbur cooipany for the erec-
tion or another bridge, the Wanea bridge, over
Charles Itlrer. Crom Cbarlegton'o to Boston, allow-
<< the Charles River Bridge
as..
bapdred recC frou
Hlver Bridge. Th(
, ^Uy beeome Iree. TraT-
elen who tormerly passed over Charles River
Ihr Warren Ilildp-: ami thuii Ih'e rhareii River
brldES Company are deprived of tbe tolls they
traneliise granted by tbe Act of 1T8G Is now entire.
1) di'Blr'iyed. 'the proprletora ot Ibe Charles Klver
Bridge Ulr>il a bill Id thi- Kupreme Judicial Court of
ran Brtdiie. (Irsr for an Injiinctlon tn preveal the
erection of Ihe iFvldce, and nflerwards for gpncral
■■ ■ tallnc I ■ ■
totlon of the i:nlt<>d stales. The Supremp Court
of Masaochusetls diflmissi'd (he Mil of the com-
plaloanta: and Ihe case wa* brought by writ of er.
ror to tbe Supreme Court of the bnlted Stalps, un-
der the provralons of Ihe £S(h ipctlon of the Ju-
diciary Act of ITf'O. The Judaoicnt of the Kunreme
Judicial Court of MasBachusplls, dismlsalng tbe bill
of the DlalnittTH In prmr, waa alDrmed.
nalble that II la Ihetr duty
Ihe Cont.
f Va\
X Slalp^
rred o
Boprtmt Court of Uaaaacbuaetta. 1. n>M by tbe
grant of IflSO, Barvard Collage was entltltd, ta
perpetuity, to the right to keep a ferry between
I'harlpstnwn and Hoston : that tha right was a-
clualTe. and On Leglalatara bad no right la etlab-
Ilsh another lerry on the same line of travel, bt-
caulji^ It would Inlrloae Ihe rights of the roller
and tbase of tbe platntlffa. under tlia ehartct si
1186. 2. Ibat (be true conalrucilon of the acu sf
the Leglalature of Maaaacbuaclls, grantlof the
privilege to build a bridge, neceHtarlly Imported
Ibat the LeglBlature would not authorlie anotbei
bridge, and especially a free one, by (be aide of the
Charles Klver Bridge, ao that the franchise which
of the Irauchliie of the terry to' the college, ana the
erani oE tbe right of pontage to Ibe prourlelota at
tbe Charlea Ri^ar Br%aTa a contract, which la
. . ,._ -^ ,__j aotSorlilng the ei-eclloo of the
It la very clear that Id the lona
In elalmloi
Warren Bridge.
In which this a
onder either of these rights,
In'clpli
Ll tbe
graQtlng fraa
obligation of s
Tbe case of Satterle* v. Mathowaon, 2 Petui,
413, rlted.
The fprry right whlrh wiis r.nn-J l.v iiMr%Brd
College waa extinguished by tbe bolldloK o( tM
t;harles Uiver Bridge, The ferry, «-nn ul. lU piit-
llegt'e, was then at an end forever, and a campeD'
Ballon In money was given In lieu of It,
As Ihe [ranchlse ol the ferry and that at the
bridge are different In their nature, and were eadi
eniBriltsliFd by separate granCa, which hnre aa
coids to connect the prlvlTeges of the one with tbe
prtvllcircs of tbe other: Iberc Is no rule of lega} In-
terpretation which could autborln the court to aa-
sodaie 1h»<e Ernnta loin^ther. and to lOli-r that any
„..,.., . ..... .. ,.- _. — ,- .^j (,f,jj.
iuae' 11 ba'd been
ere" the puj)\'^]^^
bed. There la not h lug
■ ■ tore ot our
lutes, ndopted
ider the system of jurisprudence which we have
rived from Ihe l^^ngllsb law, >'o Kood rvaaoii
n be ennlgard for Introducing a new and advrsp
■ adopt and adhere to the rulea of roustrucIiOD
se. without exception.
y A Rri
11 S.
"dlriluala. "Tbe"o'l)]ect"of"ih"ir ,..
the public asalnKt Improvident granta. or grautti
made by Impllcntlon. without clear Intention. Dll-
Uncs V. I'™vHli>iirp Bank. 4 1'pI. ri)4 ; I'errlrp v.
Ches. A Del. Can. Co. 9 How. ITZ : nichmnnd R. It.
Co. V, I.oulsa 1(. 1!. Co. la How. 71; I'cnno^-k v.
Coc. 23 Mow. 117: Auburn Plank Road Co. ».
DouElasa. B N. V. 441.
^nr'il ^AmMlSlv vitiates them. But this rule la
that such RranI and the atat
in of tbe Lrglstatu
list be such as la nol
It ruction.
!uitj
1 & L. E.
, 1 Mete. Kv. IM.
a of tbe
Be (Chnrles niver nriace v. ivarren
aotwlthatandlng the dissent tberpfrom ot
Klcr V
B of i:
[. MS :
R»DS. & nar. R. R. Co. v. Davll, 4S N. r. HT :
Black V. Ual'pd Cos. T Green, C. &. ISO; 8. C. 0
tirpen, C. F-. *RS : Rice v. R. B. Co. 1 Black. 8S8 :
Delaware Tai Caaca. IS Wall. 2H8 ; Bradley v. N.
Y. A N. n. B. R- Co. 51 Conn. 204 : Boslon 4 I.. R
R Co. T. B. * M. R. K. Co. S Cuah. UTS : Mohawk
Bridge Co, v. titica and a. R. R. Co. « Talup, " = ' ■
In re N. I. A B. K. R. Co. 48 N. T. 4BS ; Brig._ ..
C<lnd. A. B. B. Co. 3 Zab. 9Z» : Townsand r.
TI4
_ ,-,-..„- .__,.. .__ .. .32. Approvrd
and lollowed also In Oawego F'alls Bridge Co. v.
KIsb, I Barb. Ch. S47 : Collins v. Shpvman. 31
Mi^s. 2: Bbtiter v. Smith. 9 Gw. BIT: Thorpe >.
Rutland R. R. Co. 2T Vt- 140.
ipeclflcally g ■ " "
Utica Ina
>. liV .lobns. .'■
- 430.
.. — ., ...i- mode pre-
g It. Bealtv r. Mariae
I. lOB ; People y, _lltlc«_ Ina. Co. IJ
etc., of N. T. B Wend. S47.
Ths Cbaius Rim Bbidok 1. T»t Waubm Bbumk ct U^
Pnblle ■ranti ars to ba conitrnri itrletlr. In
tb* MM ot tbe UDltM Stain *. Arndondo, 6 Ptt-
tn, 7S«. Iba Jndlns ciHs od tbU (Ubject arc •»!-
Iccted tDKeClieT Uy IDe Stained Ji-ilKe, IVDO UiliTviii]
Ike oplDlon of tbe courl ; and Iba prlccliile moi-
Blicd, that In granti by tbc puDltc notblnc pani-i
br Implication. JBckKm (. Lampblre, 8 Fet«ra.
389 1 BeatT *- Tbe Lewn Ot KDOwlcr, 4 Fetrra,
laS; The ITd* Idea ce Bank T. Bltllusa and Pltt-
maa. 4 Petaii, CIJ. cited.
Id lb( cau ol the PtOTldcnce Bank t. Bllllnga
•ltd Plttnan, 4 Patera, Bit, Chief Joitlct Uar-
■kBll, iHakinit ol tbe tailna po>ver, aald. "an ~" -
whole communltT I* Inlereited In relalnlug It _..
dlnlolih^d. tbat communis haa a right to Inilst
tbs auie. It la
ot lacorimrRtlaD ._
tealed power. The argument in faior of the pro-
prlelon ol tha^Cbarln IMver Bridge la thr -
Jiarln Hirer _.
orda, with thai utf
.... .. — I jjj^ power
tbe frauchlat, cannot in any degree iDect the prla-
ctple. The eiL«ience ot tbe powpr rtoei not. and
cannot depend upon the drcnmatance of its hav-
tnctoan eierclied or not.
Tbe object and the end of all ga*ernmeat la to
proDOta tba bapplneaa and proaperltr ot tbe com-
■iDaltj b; which tt la eitablfahed. aad It can never
ba aaramed that tbe gOTernmeDt Intended to dl-
wlnlall It* powai ol accompllablag the end for
wkleh It waa created: and Id b counlrj like oura,
(TMt active and entarprlalni, cootlnnally advan-
etng Id nnsbera and wealth, new channela ot com-
■•nlcation are dallj loond neceasar]' botb for
traTal and trade, and are aaBsntlal to tbe comtort.
convcDlence, and proaperlt; ol the |ieO)ile. A siHti;
ought DeTct to be pmttmed to aurrcndir Oila pow-
er, beeanae, like tbe taxing power, the whole com-
■unltf have an Interest In preaurvloK It undlmln-
lab«4,' and when a corpaiatlon ■llegei that ■ State
kaa aorrendared, for ecTentT jeani. Ite power of
laproTeiaent and public accommodation In a great
ana Important line ol traTcl. along which a vaat
"--r of Ita citliena muit dalW paaa, tbe
a right ^to Ipalat, In Uie langnatcc ot thla
b the deliberate purpoae of
coart. "that Ita abasdonr
aimed, la a eaae In wblcL
tba State to abandon It _„
MDtlaiMd exlatenea of a gorernment would br
M KrtM valne. If. br Implications and pretnmp-
ttona. It waa diaarmed of &t powers neceaaary to
■eeompllab tbe coda of Ita creation, and the tunc-
tloaa It waa designed to perform, tranafermi to tbe
kaada ot privileged corporatlona. The rule ot con-
■tiaetlon annoonced b* tha court waa not conSned
t* tbe taitng power, nor la It ao limited In tbe
«atnlolt delivered. On the eontrarr. It waa dla-
tfiictlr placed on tbe ffronnd that the Interesta of
mlnlahed tbe powi
ersj
t appear."
State i>
wbetber Jt be the
* principle applies, and the
I mnat ba tba aam*. No one wm i)u»iiuii
that the Intereata «f tba great bodr of tha people of
tk« State would. Id thla roatance, be affected bi the
ot this great line ot travel to a single
vaon, with the rlgbt to exact tall and ex-
,..._- eomnetitlon for aeveDtj reara. While tbe
ri(bta ot private prapertr ai« aacredlj narded,
va Bnst not forget that the comnranltv also have
— '-- and that tba hatinlneaa and well-brtng of
— — * '- — tbelr falthfnl preaarva-
ird^ar*
MtTllena BBcb u ate cbmmonir cIt
dOM 0( that kind. It confers nn thai
mnltlea of a corporation for the pn.,..
lu tbe Brldga, and •Btabtlahea certain ralea st toll.
vblcb tba eompaoy are authorised to take. This 1«
tbe wbola grant. Hiert la no azclnilva prlvlVge
■Ivca to then over tbe waters of Charles Itlvcr,
■bavii ar bclnr thalr bridge; no right to erect an-
atbat bridge tbemaelvas, nor to prevent other per-
MMM from ereetfoc one; no engagement from tbe
Stata that aaotbar shall not he erected and no OO'
dcrtaklog nol to aancCIOD competition, nor to make
Improvements that mav •dlmlnlah the [■'tSS
amounl ot lis Income. Upon all these subjecte tha
cliai'ivi la aik'ut. ubJ uuiClng la aald In It about a
line of iiBvcrl so m:i b lii^UTtd au In tbe argument.
In wblcb tbe; are to hnve eiclualve privllegea. No
worda are aacd from Which an Intention to grant
any ot tbese rlglita can be Inferred. If the nlaln-
tltlB are entitled to them, II muBt be Implied slmplj
from the nature of the grast. and rannot be In-
terred from the worda by which tbe grant Is made.
Amid the multitude of caaca which have oc-
curred, and hale been iIuIIt orcnrrlng for the last
fortr or llftj jeara, tbla Is tne drat Instance in
wblch each an Implied coolract hae been contend-
ed for; and ihla court Is called upon to Infer It
from an ordlaar; act of Incorporation, cantalstBg
nothing more than the usual atlpulatloos and pro-
Tlslona to be found In ever; auch law. Tbe ab-
sence of any such conlrovcisy. wbcre there muat
many occaalona to give rise to It,
howB that the
1 that
It Is
.^ ., be It
In oppoaltlon to the tnitb of the
itIous Intention of tbe party. Tha
al thua with (he rights rtaerved to
I by legal Inlendmente and mere
l^al :
fact, and the ol
court cannot de
tlon of that po
well-being and proaperltj.
which have taken their place. Tbe allllona of
property which have been fnvcated In railroads and
canala upon llnea ot travel wLlcb bad been before
occupied by^ turnpike corporatlona. will be put In
permit these Slate* to avail thcma^'lvca of i
llshta of modern Bclfnce. aiirl to T>HrraL« of the h
effl ot tboae Improvement! which are now add]
Iti error to the Supreme Judicial Cotirt of
MasBHrhuartts.
The plaintifTs tn error are a eorporatton oK-
ated by an Act of the Legislature of the State
of Ma saachii setts paaeed on tbe 9th of Harch,
1786. entitled "An Act for incorporatlnf; cer-
tain persona for the purpose of building a bridge
over Chart oa River, betwp(>n Boalon and
CharlestaWD, and supporting the same during
forty years," Tbe preamble of the act atate*^
"wherens the erecting a bridge over Charlea
River, in tbe place where (he ferry betwam
Boston and Cbarlestown is now kept will be of
great publte utility, and Thomas Russell, Ew).,
and others have petitioned this court for aa act
of incorporation to empower them to build tba
sam« biidge," etc.
The act authorizea taking certain tolls, pre-
scribes tbe site of the *bridq;e, and fixes [*4a4
certain regulations by which it will not be per-
mitted to impede the navifration of Charles
River; and enjoins certain things to be done,
by which the bridge ahall be kept in good or-
der, and fitted for roiLRtsnl. mil convenient ute.
The fifth section of tbe act provides, "That
after the said toll abfll commence, the said pro-
K'ietors or corporation shall annually pay to
arvard College or University the aum of tffo
hundred pounds, durini; the said term of forty
yeara; and, at tha end ot the said term, the
SuFkuiK CouBT tm THE UtiiTui Statu.
IW
of tb« Commonwealth, UiTing to tha
kge or univerBity, ■ reBBOoHblt And »nnuKl
compenution for the tinnual incoma of the fcr-
17, which thcf might h&ve received had not
■aid brid^ been erected."
The bndge was erected under the authority
of this act; and afterwards, on the Sth of
March, 17EI2, in an act which authorized the
making a bridge from the western part of Bos'
ton to Cambridge, after reciting that the erect'
Ing of Charlei River Bridge was a work of
huard and pubho utility, and another bridge
in the place proposed for the West Boston
Bridin may diminish the emoluments of
Charles River Bridge; therefore, for the en-
conrageinent of enterprise, the eishth sectioD
of the act declares, "that the prupnetors of the
Oiarles River Bridge shall rontinue to be a
corporation and body politic, for and during
the term of seventy years, to be computed
from the day the bridge wa« flnt openM for
pAisengen."
The record contained exhibits relating to the
entabliahment of the ferry from Charlestown to
Boston, at the place where the bridge waa
erected; and also the proceedings of the Gen-
eral Court of Massachusetts, by which the ferry
there became the property of Harvard College.
Some of these proceedings, verbatim, were as
"A Court of Aisiataoee holden at Boston,
Not. Sth, 1030.
"Present, the Gov'nr, Dep'y-Gov'r, Sir Rich-
ard Saltonatall, Mr. Ludlow, Capt. Endicott,
Mr. Coddington, Mr. Pinchon, Hr. Bradstreet.
'"It is further ordered, that whosoever shall
flrst give in his name to Mr. Vov'nr, that the
will undertake to sett upp a ferr^ betwUt Boa-
ton and Charlton, and ehRll begm the same at
Buch tyme ae Mr. Gov'nr ahall appoynt] shall
have 1 d. for every person, and 1 d. for every
one hundred weight of giMdi bee shall so
transport."
42S*] 'A court holden at Boston, November
Sth, 1033. Present, the Governor, Mr. Lud-
low, Mr. Nowell, Mr. Treaau'r, Mr. Coddington,
8. Brad street.
"Mr. Rich. Brown i» allowed by the eourt to
keepe a flerry over Charles ryver, against his
house, and Is to have Zd. for every tingle per-
son bee aoe transports, and Id. a pieca if there
"At the Gen'all Court holden at Newe
TowTie, May 6th, ISSfi. Present the Gov'nr.
Deputy-Gov'nr, Mr. Winthrop, sen'r., Mr.
Baynei, Mr. Humphrey, Mr. Endicott, Mr.
Treasu'r, Mr. Finchon, Mr. Nowell, Mr. Brad-
streete, and the deputies:
"It is ordered that there ihall be a fferry
sett upp on Boston lyde. by the Wynd myll
hill, to transport men to Charlton and Wenese-
met, upon the same rates that the fferry-men
att Charlton and Wenesemet transport men ti>
Boston ."
"A General! Courts held at Nawtowne, the
8d day of the Qth mo. 1837. (Adjourned untU
the 16th, present.)
"Present, the Governor, Deputy Govhir, Mr.
John Endioott, Mr. Humfrey, Mr. Bellln^iam,
Hr. Eerlakcnden, Mr. Stnughton, Ur. Brad-
atreete, and InGren<ie Nowell:
*Tha fferry betweena Boaton and Charlea-
179
townt^ ia rafarred to the Governor ud Treaa-
nrer, to let at 401. pr. A. beginning tha lat af
the lOth mo., and from thence for three yeait.'
"At a General Court of elections, held at
Boston the 13th of the 3d no. A lUO.
"Present, the Governor, etc Mr. Treasurer,
Mr. Samuel Sheapard and Leift. Sprague, have
Kwer to lett the ferry between Boston ud
arleatown, to whom they aee eauae, whea
the time of Edward Converae !b expired, at
their discretion.
"At a session beginning the 30th of the Bth
mo. 1044. It ii ordered that the magistrates
and deputies of ye eo'rte, their passage over thn
ferriea, together with their necesaary at-
tendants, shall be free, not paying anything for
it, except at such ferries as are appropriated to
any, or are rented out, and are out of the coun-
tries' bands, and there it i* ordered that their
passagea shall be paid by ye country."
Further extract from the colony records
filed by the plfs. At a General Court, etc
Tth day 8th mo.
The ferry betweene Boaton and Charlestow-j
is granted to the CoUedge.
"At a Generall Courte of electiona, begunne
the eth of May, ■1640. In answer to [*4SS
the petition of James Heyden, with his part-
ners, ferry-racn of Charlestown, and for the
satisfaction of at) other ferry-men, that there
may be no mistake who are freed, or should be
passage free, and how long; It is hereby de-
clared, thst OUT honored magistrates, and audi
re, or from time to time, shall be chosen to
serve as depulyes at the Generall Court, with
both their necessary attendants, shall be pas-
sage free over all ferryes; and by necessary at-
tendants, wee meane a man and a horse, at all
times during the term of their being magis-
trates or deputyes, but never intended all th<
familyes of either at any time, and that ye
order neither expreaseth nor intendeth any such
"At a third session of the General Court of
elections, held at Boston the 15th uf October,
1660. In answer to (he petition of Henry
Ihmster, president of Harvard ColIeUxe, respect-
ing the hundred pounds due from the country
to the college, and rectifying the fferry rent,
which belongs to the college. It is ordered that
[he treasurer shall pay the president of the col-
lege the some of one hundred pounds, with two
years forbearance, as is desired; and forbear-
ance till it be paid out of this next levy, iliat
so the ends proposed may be accomplish!;
and for the ferry of Charles Towne, when the
lease is expired, it shall be in the liberty and
Kwer of the president, in hehalfe and for the
hoofe of the College, to dispose of the said
ferry by lease, or otherwise, making tlie beat
and moat advantage thereof to his own content,
so as such he disp'neth it unto performe the
service and keep sufficient boatea for the use
thereof, aa the order of the court requirea."
~ie case of the plaintiffs in error la tins
stated in the opinion of the conrt:
It appears from the record that In the year
1460, the Legislature of Massachusetts granted
to the president of Harvard College "the libw^
ty and power" to dispose of the ferry froH
Charlestown to Boston, by lease or otherwiM,
in the behalf, and for the behoof of tha college;
and that under that grant the college continae'
Pet«ra 11-
1UT
¥hs ChaIU* Rttig fimui f . TU ttAiSbi eklMi e( ifc
ta kotj Bttd keep the ferry, bj lU 1«u«lH or
Kgenti, And to receiTa tlis proflti of it until
ITISS. In th&t 7»r k petition wm pretented to
the Legialature by Thomu Rutaell uid other*,
(tating the iaeonveni«nee of the trantporUition
bj ferriea orer Chkrlea River, and the public ad-
vantage that would result from a bridge; and
pr«}'ing to be incorporated, for the purpose of
erecting a bridge in the place where the ferry
4t9*] between *BaBlon and Charleatown was
then kept. PurBuant to the petition, the Leg-
itlature, on the Btb of March, 17S6, passed an
Act incorporating a company hy the name of
"The Proprietors of the Charle* R{*er Bridge,"
for the pnrposei mentioned in the petition.
Under thti cbarter, the company were autbor-
ited Id erect a bridge "in the place where the
larry is now kept;" certain tolls were granted,
and the charter wai limited to forty years,
from the flnt opening of the bridge for pas-
•engers; and from the time the toll commenced,
until the expiration of the term, the company
were to pay two hundred pouude, annually, to
Harvard Cotl^ge; and at the expiration of tfae
forty years, the bridge was to be the property
of the Commonwealth; "saving," as the law ex-
preaaea it, "to the said college or university, •
reasonable annual eompenaation for the an-
nual income of the ferry, which they might
have received, had not the aaid bridge been
erected."
The bridge waa accordingly buHt, and waa
opened for passengers on the ITth June, 178fl.
In IT9S the charter was extended to seventy
yean from the opening of the bridge, and at
the expiration of that time It whs to belong to
the Commonwealth. The corporation have
regularly paid to the college the annual sum of
two hundred pounds, and have performed all
the duties imposed on them by the terma of
their charter.
In 1828 the Leglalatnre of Uaasaebusetta In-
corporated a company by the name of "The
Proprietors of the Warren Bridge," for the pur-
pose of erecting_ another bridge over the Charles
River. The bridge Is only sixteen rods at Its
commencement, on the Charlestown aide, from
the oommenccment of the bridge of the plain-
tiffs, and they are about fifty rods apart at
their termination on the Boston aide. The
tivvslen who pass over either bridge, proceed
from Chariestown Square, which receives the
travel of many great public roada, leading from
th« country; and the pasaengcra and travelers
who go to and from Boston, used to pasa over
the Charles River Bridge, from and through
thfa square, before the erection of the Warren
Bridge.
The Warren Bridge, by the terma of the
dikrter, was to be surrendered to the State as
aoon M the ezpenaea of the proprietori In
building and supporting It shoula be re-Im-
bnnadi bnt thfa period waa not in any event
to wte»ed six years from the time the company
•ommenced receiving toll.
When the orielnal bill in this case was filed
the Warren Bridge liad not been bnilt, and the
bill was filed after the passage of the law, in
4SS*] 'order to obtain an injunction to pre-
Tent It* erection, and for seneral relief.
The hill, am<mg other things, charged as a
ground for relief that the act for the erection
of Uw Warren Bridge impaired tha obligation
• Ei. fld.
of the contract batween the Slate of Ifaaaa-
chusetta and the proprietors of the CharlH
River Bridge, and wan, theretovc, repugnsnt to
the Constitution of Ihe United States. After-
wards, a supplemental bill was Bled, stating
that the bridge had been so far completed that
it hod been opened for travel; and that divers
persons had passed over, and thus avoided the
Kyment of the toll, which would otherwise
ve been reoeived by the plaintitTa.
The answer to the supplemental bill admit-
ted that the bridge bad been so far oompteted
that foot paasengpri could pose, but denied that
any persons but the workmen aod Superinten-
dents had passed over with their consent.
In this state of the pleadings the cause came
on for a hearing in the Supremo Judicial Conrt
for the County of Suffolk, in the Common-
wealth of Massachusetts, at November Term,
1329, and the court decided that the act incor-
porating the Warren Bridge did not impair
the obligation of the contract with the pro-
prietors of the Charles River Bridge, and dis-
missed the complainants' bill.
The complainants prosecuted this writ of er-
The ease was argued by Mr. Dntten and Mr.
Webster for the plaintilTs in error, and by Ur.
Greenleaf and Mr. Davis (or the defendants.
Mr. Dutton, for the plaintiffs.
This case comes before the court upon the
bill and answer, amended bill and answer, ex-
hibits, evidenee, etc., contained in the record.
The plaintiffs, in their several billa, after set-
ling forth the grants made to them by the acta
of 1780, and 1792, and their compliance with
the terms and conditions of them, camplain
that the defendants are about to construct, and
have constructed, a bridge between Charlestown
and Boston, so near to the plaintiffs' bridge as
to be, in contemplation of law, a nuisance to it,
and they therefore pray that the defendant*
may be enjoined, etc.
The defendants justify under tbe authority
of an act passed on 'the 12th of ^Urcll, [*4S«
1B28, eatabllahing the Warren Bridge Corpora-
The plaintiffs allege that this act of tbe
Legislature, under which the defendants justify
themselves, impairs the obligatiun of a eon-
tract, and ia, therefore, unoonstitutional and
void.
The defendanta, in their answer, deny this;
and the issue raised by these pleadings, and
the only one of which this court has jurisdic-
tion, is whether the said Act of March 12th,
1S28, does or does not impair the obligation of
■ contract.
Such being the state of tfae pleadings, and
such the only issue which this court can try, I
slinll endeavor to maintain tliis single propMl-
tion, vis.:
The Act of the Legislature of Maasaehnaetts
passed on the I2th of March, 1828, eslahliohing
the Warren Bridge Corporation, is repugnant
to the 10th section of the lit article of the Cnn-
stitutlon of the United States, which prohibita
a State from passing any law impairing the
obligation of contraeU.
In the discussion of this proposition many
topics will come under examination; aU, bow-
ever, connected with it, and all resulting In tba
aOimuuice OT denial of It.
StnnuH Cotnr or thb UmTB Swa
hieorporkting tha plaintilTi, it appetrs that th»
bridge ii to be erect «d "in tlie place where the
ferry betireen Bostoa and Charlestown i« now
kept;" knd by the 6th section of the act it i*
provided that "after the said toll shall eom-
mence, the naid proprietor! or corporation shall
annuallj' paj- to Harvard College or University,
the aum of two hundred pounds, during the said
term of forty years."
The plaintilTs' charter, therefore, upon the
face of H, ihowa that certain transactions tooii
tiace between the Legislature, tha college and
he grantees.
The ferry that belonged to the college is to
Im extinguished, and a bridge is to be erected in
Ita place; an obligation ia imposed upon the
grantees to pay to the college the sum of two
hundred pounds annually, and there is a recog-
nition of a right in the college to compensatiOD
for the loss of the ferry, after the plaintiffs'
charter has expired.
All this leads 1o an examination of the terry
and its legal history, as it spppars by various
colonial ordinances, together with the nature
and extent of such a franchise, at common law.
4S0'I 'On the 0th of November, 1630, the
colonial govemnient make an ofTcr of m ferry
o anyone who will undertake
tween Boston and Chariest ov
rates of ferriage, etc.
On the eth of November, 1G33
ia allowed to keep a ferry ove
' ' *B house, and the rate.
S"".'
n, and fli the
El chard Brown
Charles River,
are there stat-
tt does not appear where this ferry was,
or whether it was ever sut up.
On the 2d day of the Sth month, 1S37, this
ordinance was passed.
"The ferry between Boston and Charlestown
la referred to the governor and treaaurcr to
let, at forty pounds per annum, for three years."
On the I3tl] of the 3d month, 1040, it is re-
ferred to Samuel Shephard and others to let
the ferry between Boston and Charlestown,
when the time of Edward Converse is expired,
etc.
On tlie 7th of the 8th month, the ferry was
granteii to the college in these words:
"The ferry between Boston and Charlestown
ia granted to the college."
By this ordinance, which, with others relat-
ing to ferries, will be found in the 6Bth and
STth pagea of the record, it appears that tlie
lease to Converse was about to expire, and that
there was, at that time, no other ferry in exist-
ence between Boston and Charlestown.
At a session of the court, held on the 30th of
the 8lh month, 1044, it is provided that magis-
trates, with their necesnary attendants, shall
have free passage over all ferries that have not
been granted or leased to any, and their pas-
•age shall be paid by the country.
Om the Sth of May, 1646, an ordinance was
SBied explaining the foregoing ordinance, and
Elaring what is intended by necessary attend-
ants, for the aatlafactlon of the ferrymen, and
making magistrates passage free, over all fer-
rlea.
TUa ordinanoa exempts maffistratea at all
faniei, contrary to the Act of 1044; and ia the
Mly one, during a period of one hundred and
fortT-IlT* rears, which, in the sniallest degrac,
fit
ftlteati tha tneoiM of the rnTj-. Whether the
amount to be charged to the country waa foaad
to be too trifling to Imep an account of, or
whether the exemption at all ferriea wm
claimed bv the magistratea, after royal n-
ample, and aa bsing the representatiVM of tha
royal authority, does not appear.
It appears by the ancient ehartera, tlwt
the college waa uicorporated in Uay, 1660.
'Various acts were passed, conArm- 1*411
ing the original grant to the oollege, b<tth b»
fore and after the act of incorporation.
By the ordinano* of 1642 (Ancient CbMien^
page 77), the "revenue of the fen? betw«w
Boston and Cliarlestown" was girea to the ool-
lege.
In the Act passed on the 15th October, 1660,
It is provided that for the ferry of Charleatown,
when the lease is expired, it shall be In the
liberty and power of the president, in the b*.
half and for the behoof of the college, to dis-
pose of the said ferry, by leaaa or otherwio^
making the beat and moat advantage thereof to
his own content, etc., etc.
The Act passed on the 18th October, 1S64,
speaks of the "ferry formerly granted to tb*
tollege;" and the Act of 27th June, 1710, apeak*
of the "profits and revenues of the said ftrrj
being granted to Harvard College, in Cub-
bridge.'^
Thus, it appears that the original grant of
this ferry, in 1040, was confirmed ia 1042, in
1660, in 1864, and in 1710.
Various acts regulating ferriea were paaaed
by the colonial government, and several ref-
lating the ferry between Boston and Charlea-
town. They relate to the duties of the fcrir-
men, the convenience of the ferry way^ tnc
number of boats, etc, etc. The Act passed In
1781 provides that whenever the corporation of
Harvard College shall make any alteratioa in
the rates of ferriage, they shall publiah the
rate* by them estaEiIiaheiL
In 1713 there was a project for building a
bridge where the ferry waa kept, and a com-
mittee was appointed by the corporation of the
oollege to "insist on the right which the col-
lege hath in and to the profits of the >aid
fcriyi" and the government, at the same time,
appointed Dr. Clark, to confer with the prcai-
dect and fellows upon the affair of a bridge in
place of the ferry.
Thus, then, it appear* that the college hdd
this ferry tor one hundred and forty-flve years,
with all the common law right* of ferriesi sub-
ject only to such regulations aa the colonial and
State goverumenta saw fit, from time to tiUM,
to make.
First, tha ferry itself waa grant«d{ after-
wards, its profits, revenue*, etc., etc
If one grant* the proflt* of his land, the laid
itself passeth. Comyn. tit. Grant, E. S.
In order to understand the nature and axtant
of thia franchise, resort muat be had to the
common law; and this ha* been uniform, from
the 'time of Henry VL to the presBit r*4S9
time. It i* also th* law of tbi* eounbrr, ex-
cept in eases where it ean be ibown that it has
bees overruled by adjudged oaMa, or modified
by statute.
In the Terms de Ley (33S), a ferrr i* ixUed
a liberty, by prescription, or the kt^a grant,
to hare a beat for tha paaaaga upon a graat
Twtm II.
Tbs CBAkun KMr >Bkiiwi v. tak WuwkB BttsM M ib
m
tor
U is Mklled tia IncorporM] heredltBinaiit, and
U cither /oundcd in gninl, or preicriplian,
which BUppoBeB a grant. In the one case, tiii
extent of the fianchiu ii aacerUuned bf UMge
in the other, bj tlie term* of the gnot. Dane't
Abr. i vol. esS; tilark t. U'Qowan, 1 vol. Nott
* ITCord'i RpportB.
It inB7 belong to the government,
C ration, or to an individual: the property may
private, though the uae is pHblic.
Id 10 vol. Fetrradorf, 63, it » said that these
franchitea, which ore variaua, may be "Tested
cilhrr in the natural person, or bodies politic;
in one man, or in many; but the aame identical
irancbiae thttt has been granted to one cannot
ba bestowed on aaother, for that would preju-
dice the former grant." Also Viner'a Abr. vol.
13, el3.
In a note to the case of Bliaaet t. Hart,
WiKes's BeporU, 512, it ia aaid: "A ferr; is
publici juria; it Ib a francbise that no one can
«ract without the king's licease; and when one
ia aroeted, another cannot be erected without
wa ad quod damnum. If a seoond is erected
without license, the crown has ■ remedy by
quo warranto, and the former grantee by
Mtion."
If the ferry be not well repaired, it ia popular,
«iid in the nnture of a highway, etc. It is to
be reformed by presentnieat or information.
Thia difTera from the ease of mtlla, bake-houses,
etc., which are grounded on cuatoma, and of a
private nature. Hordres' Rep. 163.
Every owner of a ferry must have a right to
Iftttds to take io his passtiugere. He need not
own the soil, but lie must have a right to use it.
12 East, 330; S BMrnwell & Creswelt, 703. The
general doctrine U laid down in 22 Henry VI.
16, It;
"If 1 have a ferry by prescription, and an-
other is erected eo near as to impair my ferry,
it ia a nuisance to me; for I am bound to auB-
tain and repair the ferry for the use of the
king's liegea; otherwise, I may be grievously
kiuerced." In Rolle's Abr. 140, Nuisanoe G, line
20, the same doctrine is stated with referenoe
to a fair or market.
Hale, in a note to Fitzherbert's Nat. Bre.
433*] 428, says: "If the 'market be on the
name day, it shall be intended a nuisance; but
if it be on a different day, ft shall not be so in-
tended; and therefore it ahall be put In laaue.
Whether it Im so or not." Citea 11 Henry IV.
S, 6.
U * ferry be erected with lieesae, Another
cannot erect a ferry to the uoiaanee of it.
Comyn. Dig. tit. Piscary, B. He statea the
•Mne doctrine in another place: "Title, action
aa the case for nuisance, A." "Bo if one erect
* ferry so near my nncient ferry." Block-
■tone's Com. voL I, USi Nott A; ITCord, vol.
i, U7.
It la Ue nanal pr*et(ee In England to Issue
Che writ of ad quod damnum, before the patent
(or a fair or market ie granted. But ai the
•xecutioa of this judicial prooees doei net, and
csnaot always ascertain what will be the eSeec
sf (he proposed market or fair, the doctrine
■eema to be well settled that in ease it does
prove to be Injuriokia to tag existliig market or
fair, the patedt may be repealed upon proof of
the fact. In other words, the writ of ad quod
damnum, executed, ie not coacluaive. 6 Mod-
era lEpp. 22»; 2 Ventris, 344; 3 Levini, 220;
Hate de Port. Maris; Hargrave'b Tracts, SB;
Comyil. Dig. Patedt, F. 4, 6, t), T-.Z to\. Wil-
liams's Baundersi Note 4, p. 72; 2 Institute, 400.
It I* thus ttated by Chitty in his rrerogri-
Uvea of the Crown, 10 ch. 2 tec
It ia most important to remember that the
king does not grant a mailtet or fair, without
a writ of ad quod damnum bring first executed;
even if that be done, the crown cannot enable
a subject to M«ct a market or fair so near to
that of another person as to affect his interest
therein, etc., etc.
The owners of ferries are under liabilitiei
and obligations, which may bi; enforced against
them by individuaU or the public. These
franchisee are declared to be puUlid juris; and
the law gives a remedy in all cases of negli-
gence or injury, by presentment, information
or action on the case. Paine v. Partridge,
Salkeld, 717; Willes's Rep. 612; 3 Salkeld, lUS.
They have also rights wUch can be maintained
by law; by action on the ca»e for a dis-
turbance; by action of assize; by diitrriiH, ela.,
etc. 2 Saunders, Williams'B ed. 114; 4 Taiin
Reports, 006; 2 voL Dane's Abr. 683; Bacon,
Abr. tit. Distress, F. pi. 6; Crake. Eliz. 710; S
Term Rep. elSj Huuy v. Field, Law Journal,
Ho. \3JiaSI.
All these franchise*, aa of fairs, markets,
fefriea and bridges, are 'founded on ['434
good and Bullicient consideration; such as the
ppnditure of money in estabUehing and tnaia-
.ming them for the conveiiienue and safety of
le public. They are all publici juris, and from
the rights, liabilities, and duties of which they
are compounded, results the notion of property
in them. The toll, or right to demand and re-
ceive money for the uae and enjoyment of these
franobises, of which the toll is part and paroel,
is recognised aa property, and protected as
property, both by the law of England, and of
thia country. A grant of these vests in the
grantee a beueQciai interest, which may be de-
mised, leased, or mortgaged. Puphnm's Rep-
79; Moore's Rep. 474; Webb's case, S Coke, S2;
Guiming on Tolls, 106, 110; S Barnwell & Cres-
well, 703; 6 Barnwell t Creswell, 875; 3 Maule
ft Selwyn, 247; 1 vni. Crompton Jt Jcrvis Rep.
1 ; m the Exchequer, 400.
The franchise of a bridge or turnpike may
be taken on execution in payment of debt, by
the law of Massachu setts. In Chadwick's case,
an action was brought at common law, and
sustained by the court, for compensation for
the losa of hie ferry, by the erection of a
bridge. 2 vol. Dane's Abr. 6M; also Judge Put-
an's opinion, 7th Pickering.
As to the local extent of this franchise of a
ferry, an attempt has been made to limit it to
the ferry way a; and the case of Ipwich v.
"rown, Saville, Rep. 11, 14, Is cited, where it ia
lid, that a "ferry i* in respect of the landing-
place, and not in respect of the water, that the
water may be in one, and the ferry in an-
other;* it is also said in this case that the
owner of the terry muat own the soil on both
Thia last put «f tha oaae i* azpreasly over-
lit
SimtiiB CootT or m Uinn» Bun
IStt
nM in 8 Bcrnwell A, CrctwtU, T03. And m
to tha olher part af tlie case, it mcuta nothtng
more than this, that a ferry must have ferry
waya, or landing places.
The case in liardrca Itrp. 162, was tbjl:
ownins land on both sides of the Thamea,
up a ferry three quarters of a mile from an
ancient f«rry, at Branford. A bill was brought
in the Excheijuer to auppreis it, as coming too
near a monopoly. The reporter adds, sed
Sjirre d« ceo; for contrary to the booka of 28
enry VI. and to precedents in like casei In
this court.
Aflerwardi another bill being filed for tlie
■nme matter, the court, on the Tth of April,
Lord Kale presiding in it, decreed that the new
ISS*] 'ferry should be suppressed, and that
the defendants should not have liberty to use
any ferry boat to the annoyance of the plain-
tiffs ancient ferry, 2 Anstrc'b'ir Pop, 603.
In the case of tlie Newbu (;'' Tumrikc Com-
pany V. Miller, 5 Johnson's Chancery Cases,
lot, tlie principle is clearly stated and applied.
The plaintiffs in this case had erected a bridge,
aa part of their road across the Wallkitl; the
defi-nilinls evcoted anoTher frre brdge eighty
lode di^tont; pitrchnwd a strip of land adoin-
iig the bri<!gp. and Iwd • rocd laid out by com-
missioner! a^ a public highway, for the pur-
pose of avoiding the toll gate of the plaintiffs.
Kent, Chsn-ellor, eeid: "The quo animo is not
an essential inqu'ry in the case; whatever may
have bpen the intention of the defendants, the
new rnnd nnd bridge do directly and materially
impair the use and value of the plaintilTs
franchise.
No rival mtd, bridge, ferry, or other estab-
lishment, of a Hintilar kind, and for like pur-
poses, can be tolerated so near to the other as
materially to affCL-t or take away its custom.
It operate!) aa a fraud upon the grant, and goes
to defeat it. The consideration by which indi-
viduals are Invited to expend money upon great
expensive and haiardoua public works, such aa
roads, bridges; and to become bound to keep
them in cotiHfant and ;!00d repair, ia the grant
of n right to aa sxcluaive toll. This right, thus
turchnaed for a vnluable consideration, cannot
B tal'en away by direet or Indirect nfjiDi."
Also cited, (Jgden v. Ulbbons, 4 Johnson's
Chancery Kep. 160.
It appears from the ancient ebartera of the
Colony of Massachusetts, page 110, 111, that
tiie same notions of an exclusive right in ferries
prevaiUd there that have always prevailed in
England. For as early as l<i41, near the time
when the "ferry between noatan and Charles-
town was granted to the college," this ordi-
nance was passed; "It Is ordered by this
court, and the authority thereof, that whoso-
ever hath a ferry granted, shall have tbe sole
liberty of tinnsporling psasengers," eta.
Here is a direct assertion of an exclusive
right in the owner of a ferry, and fs worthy of
' notice m a cotemporaneous exposition; and
can it be reasonably doubted that Edward Con-
verse, under his lease from the government of
"the ferry between Boston and Charlestown,"
had the sole and exclusive right of trenaport-
ing passengers between those termini]
All, therefore, which tbe plaintiffs claim in
4t«*] the case at bar, is an 'eKclusive right
><ctweFB Boston and CharlestowDi tnd l( tbay
have taj exelnstr* right, ft must han mmt
local extant beyond the ferryways, or tb«
planks of the bridge, otherwise it would not bt
exclusive. If anyone at his pleasure could
have lawfully carried passengers from Boston
to Charlestown, and landed then within two
feet of tbe ferryways of Converse, he would
not have had tbe sole right of carrying between
those two points. No other ferry or bridge
eould be erected between those termini, with-
out "being near in a positive sense," which is
the form of expression in which Chief Justice
Parker laya down the rule; without being so
near, in the language of Blackatone, s> to draw
away the custom of the elder ferry or bridge;
or without producing, in the language of Chan-
cellor Kent, ruinous competition.
With this extent, therefore, the college held
the ferry on the 9th of March. 17S6, when the
set p:isscd ma!:in;: the plaintiCts a corporation
.or the i;urpo>i> u[ erecting a bridge in the
]ilace where the ferry was kept; and the view
we take of this transaction is this, tliat the
corporation created by this act became the aa-
signees, in equity, of tliis franchise, or it was
surrendered (o their use bi" rjx-riitiin of law.
2 Thomas's Coke Litt. 653;' B Barnwell t Crcs-
well, 703.
A bridge, in place of the ferry over Charles
River, is deemed by the legi-lalura to be s
matter of public utility; and tbey are disposed
to grant a liberal charter to nuch personit as en
willing to undertake so lisiaidnuii an euTrr-
prisB. The college are ready to part with ihi-ir
ferry for an annuity equal to their <iwii in-
come; and Thomas Husfell and his aaso< isles
are wilting to make the tiriit expeuuicut in
this country of throwing a bridge fifteen hun-
dred feet in length, over iuivig;tble wuift^. lur
the tolls to be granted thum, lor the pcriuil of
forty years.
The ancient ferry, then, Istobeextlnfmishedi
which could not be done without t!ie authority
of the govemnient, nor without the consent c^
the college. 3 Modern Rep. 204.
Tbe petitioners are to pay two h'indml
pounds annually to the college for forty vfar".
as a raimpeTiFBtion for the loss of the f.-rry:
and to this agreement the college beciiine »
party, by its assent given at tlie time, and it>
subsequent acceptance of the annuity. Record,
122, 124.
The right to keep up a ferry at this place is
extinguished, but the benefirial interest of the
culle^ is not; for in the act there is a
•"saving to the eoHege of a rensoiiable ('481
and annual compenaation for the annual ineomr
of the ferry,"
It is said that the government seized Um
franchise of the ferry. If this were so, then It
passed with the grant of a right to build a
bridge "Hn the place where the ferry was kept;*
agreeably to tlie doctrine in Palmer's case
Popham's Rep. TB; 9 Coke, SB; IG Coke, 64, 63.
But there is no evidence that the ^varnmeat
did, or Intended to seise tbe franchise, as pri-
vate property, for public use, in the e>^erci»e of
the eminent domain. There was no neeeasity
or motive for doing this, because tbe petitioners
lor the bridge bad agreed to pay the college for
the surrender of their terry for the forty yeaiSi
and their act of incorjioratinn confirmed and
executed that agreement. Tb« whole trans-
1837
Thb Cbablks Rnm Bkidob t. The Wabbbk fiBUwB ■
43T
action ihows that (t wm a matter of pr«vli
aiTan;^inent between the three partlea, and the
tarms and conditlona of the bargain were made
abligatory of the act.
Now, It it obrioua that tf the goTenintent
bad given the college an authority to huild ■
bridge "in the place where the ferry wae kept,'
It would have had the tame local extent of frah'
ohiee that the ferry had. Or If the proprfetoit
of Charles River Bridge had first nurehaited
the ferry of the college, end afterward! had ob-
tained the charter to build a bridge "in the place
where the ferry was kept," the reault would
bave been the same.
The beneficial interest vested in the
of the ferry and of the brid';e ii the a
wit, a right to demand and receive a certain
rate of toll from all pi^rHona passing from one
town to the other — the place the tame, the ob-
ject the same, the mode only different.
The power of regulating alt these fran-
Aiaea, whieh are public! juris, is in the govern-
meat. It is an incident of aovereignty. Tn the
ease of ferries It extenda to the number and
CM of tlie ferrywayH, the number and kind of
ta. the times of putting off from each aide;
reaching to all those dotsils which concern the
eonvenience and safety of passage and trana-
portatTon.
In tlie case of a bridge, thia power of regula-
tion in the government )■ exerted at the time
the cliarter is grnnled. The place where tlie
bridge is to he built; its dimensions, mnlerials,
lights, draws and other details, are ail pre-
■cribed and settled by the act: and the eovem-
ment act upon the corporation, by holding
them to ■ strict performance of all the duties
Imposed.
4S8*] 'The charter of 1780 and its extension
In 1702:
The flrat grant waa of a right to build a
bridge over a navigable river. It was an eier-
eiae of the sovereijfn power of the State over
Mrtain public rights.
By the severance of the empire, and the eon-
sequent independence of the States, all publie
property and public rights vented in the States,
aa successors to the crown and government of
tb« parent country. The power of Mnssachu-
■atta in the year ITS6 was, therefore, as ample
KBd complete over these aa it had evar been be-
fore the separation.
Such rights as these have always been held
la England by grant or prescription, exclusive-
ly as private property; such as fisheries in arms
of the tea; [erriea and bridges over navigable
rivers or arms of the tea, auoject only to such
roRulationa as public convenience required.
In grants tliat abridge publie rights, it is gen
•rally held that a consideration must be shown.
Hargrave'a Law Tracts, "De jure maris," IS
U Mi Angel on Tide Waters, lOS, 107.
In Carter v. Thurcot. 4 Burrows, 2101, Lord
Uknsflcld says "on rivers not navigable, the
proprietora of the adjoining land own ad flluni
meoium aqu«ei not so in arms of the sea; hut if
be can show a right by grant or prescription
which BupposcB a grant, be may have an exclu-
aivfl right in an arm of the sea or navigable
rlvar." In the following cases the same doc-
trine is clearly laid down: A Dumford k East,
UO; 2d vol. Dosanquet & Puller, 472; 1 Dum-
ford ft Bast, eeSi 1 Modem Rep. 106; 4 Dum-
ford A Eaat, tW. Booh k Uw Uw of XiiKlaiid.
It is the law of Connecticut. In Ist voL
Oonnectfeut Rep. 392, the court say, ^hat
the right of fishing, by the common law, tn tba
ocean, in arms of the sea, and in navigable
rivers, below high water-mark, is common to
all, and the State only can grant exclusive
richt. The public may grant an exclusive right
of fishing in a navigable river; and if it may
be granted, It may be prescribed for."
It is the law of New YorU. See The People
V. Piatt, 17 Johnson, l&S.
It is the law of Massachusetts. In the Sth
vol. of Maas. Rep. Chief Justice Paiaons statea
the common law doctrine, and the alterationa
It has undergone since the flrst settlement of
the country.
The Commonwealth v. Inh. Charlestewn, 1
Pickering, 180. With regard to riparian own-
ers of land upon streams, not navisable, the
'common law has not been modified; [*4SI
they own, as in England, to the middle of tha
But, with regard to the ownera of land
bounding on the seaafaore or arms of the sea;
they own, by the law of Mosaaehusetts, to low
water-mark, where the tide does not ebb more
than one hundred rods: though, by the common
law, they could bold only to high water mark,
tor all below belonged to the king. Yet they
might hold by grant or prescription against the
king. 1 Mass. Rep. 231; IT do., 289; 4 do.,
140; Angel on Tide Watersj 4 Mass. Rep. 622.
An act of the Legialature of Massachusetts,
touching public property or public rights, has
the same force and effect as an act of Parlia-
ment in England.
There is, then, no restraint or limitatton upon
the power of the grantor over the aubje^t mat-
ter of this grant: none in the Constitation of
Maasaehusetta ; none in the act itaelf that in-
terferes with the posiesaion of an exdnaire
right by grantees.
The rule of construction applicable to thb
It waa said by a learned judge. In the court
below, that the general rule of law was, that in
governmental granta, nothing passed by impll-
oation. Where, I wonld ask, is any such gen-
eral rule to be found! Not in the hooka, sure-
ly, nor can it be inferred from adjudged caaes.
AU those eited in support of the rule are caaea
if crown or prerogative granta; and these, a«
itrongly Intimated by C3iief Justice Eyre (2
Henry's Blaokatone, 500], stand on a different
footing from grants bj acta of Parliament. But,
with regard even to these crown grants, where
the royal prerogative is entitled to the moat in-
dulgence, and where the grant la made at tha
suit of the grantee, there are a variety of cases
where valuable rights, privileges and franchiaea
pass by necessary implication. Bacon's Abr.
title Prorogative, f. 2; Plowden, 330, 7; Bex
v. Twine, Croke Jac., 179; S Coke Bep. SO;
Dyer's Rep. 30; Savllle, 132; 1 Ventris, 400;
Whistler's case. Rep. 64, 06.
The general rule is thus laid down by Chittf
1 Prerogative, oh, IS, see. 3, 391;
In ordinary caaes, between subject and sub-
ject, the principle is that the grant shall be
construed, if the meaning be donbtful, most
itrongly against the grantor, who is presumed
..o use the most cautioua words for his own
advantage and securityi but, in the case of the
king, whoaa gmnta ahkHy flow from hla royal
Scmmu CouBT or tsk Ukiikd ST:irBa
usr
gTH« Utd bonniy, tlw rule la otherwige; Knd
440*] crown graoti h^ve at m\\ timsa 'been
eonitrued most fftvoniblf for th« king, wbera
■ fair doabt ezl»t( aa to tbe real meaning o( tbe
Inatrument.
iBt. No strained or eztraTagant coo«truction
U to be made in favor of tbe king; if tbe in-
tention be obviouR, ro;al grant* are to roceire
a fair and liberal interprrtation.
Zd. Tbe coniitruction and leaning eball be ii
favor of tbe eubjcct, if tbe grant show tbat it
waa not made at the solicitation of tbe gran-
tee; but CK apeciali n'atia certa scientia, et
mero motu regU. 10 Coke, 112; Comvn. Dig.,
Grant, C. 12.
3d. If the king's granta are upon a valuable
consideration, tbej ahall be construed strictly
for tbe patentee.
Tbe grants of tbe king, wben valid, in gen-
oral bind bim, though without consideration, as
•ubjecta are bound by their grants. Ch. 18,
•ec. S.
There are cases in which it is said that wben
tboH things, which are said to be parcel of the
flowers of the crown, such as the goods of
felons, waifs, eatrays, etc., come into the king'i
poEsesaion, thej are merged in tbe crown, and
do not pass without express words; but even
these will pass if thty can be made certain bj
reference. Tbe case of The Baone, which has
been dted. Is explained by Justice fiaiti .
this way in the caae of Tlie Duke of Somerset
V. Fogwell, 6 Bamewall & Cressweli, 876.
There is, then, no foundation in law for tbe
auppoacd analogy between crown granti
England, and grants by legislative acts in
country. But if the act of 178S were .
jeeted to the strictest rules applicable to or
grants, it would be entitled to a liberal
■truction for the grantees; for it is upon a
good, a valid, an ulequate, and a meritorious
consideration.
Tbe State of Hassachusetts is as much bound
by necessary implication in its grants a* indi-
viduals are. This is decided in the case of
Stonghton v. Baker, 4 Mass. Rep. 622.
The true notion of prerogative in this coun-
try, is well stated by Parsons (arguendo) in
1 Mass. Rrp^ 366, as distinguiabed from pre-
rogative in England.
In England prerogative Is tbe cause of one
against the whole; here it is tbe cause of all
against one. In the first case the feelings, tbe
vices, ns well as the virtues, are enlisted against
It; in the last in favor of it: and, therefore, here
it is more important that the judicial
441*1 'courts should take care that the claim
of prerogative should be more strictly watched.
In the opinion of a learned judge in the court
below, we are told that if tbe king makes a
grant of lands, and the mines therein contained,
royal mines shall not pass: and why ootT Be-
cause, says the same authority, the king's
grants shall not be taken to a double intent;
and the most obvious intent is, that they should
only pass tbe common mines, which are granta-
ble to a common person. That is, tbe grant
•hall not draw after it what can be separated,
and what ia not grantable to a common person,
but Is a spemal royalty, a erown inheritanoe:
and jtt tlua mm, and c^hen like it, are dted
in support of the pretended rule that in coven-
mental ^nts nothing passes bv implication.
What IS the consideration of the case in th*
grant at bar! The grantors themselves fumisb
the highest evidence of its merit. In the art
Inconwratlng the proprietors of the West Bos-
ton Bridge in the year 1792, they say: "Where-
as the erection of Charles River Bridge was s
work of batard and public utility, and anotker
bridge in the place proposed for the West Bm-
ton Bridge may diminish the emoluments of
Charles River Bridge; therefore, for tbe em-
eouragement of enterprise," etc., etc
It was hacardous, for no attempt at that
time had been made to carry a bridge over
tide-waters; and so doubtful were the sub-
scribers of its stability, tbat a number of them
insured their interest in it. The hazard was
all their own; and so neat was it thought to
be, that upon the breaking up of the ice, per-
sons assembled on the shore to see it carried
away. It has stood, however, against tini? and
the elements; it has stood against everything
but legislation. It was opened with proces-
sions, and every demonstration of a gpnpral re-
joicing; and was coosidered, at the time, as sa
enterprise of great patriotism, as welt as of
utility.
This charier is to receive a judicial con-
struction, and the words of grant are to be
subjected to a judicial analysis. What relations
do the words raise I What rights are extin-
guished; what required; and what covennnti
are implied ?
In the case of Fletcher v. Peck, 8 Crancb'i
Rep- the grant in that case is said to be a con-
tract executed, the rights of the grantor are
said to be forever extinguished, and a contract
implied never to reassert bis riclit; but none of
these tbingE appear upon the face of tbe deed-
*lt is said, there is a mode of writing [*441
with sympathetic ink, which cannot be read
till it is held up to tbe light. So words of
grant must be held up to the light of judicial
interpretation. When the relations which tbe
words give rise to are unfolded, the righta that
are extinguished, and the rights that ar« re-
quired, and tbe covenants that are implied, all
become clear and legible.
In examining the charter of 1786, I shall con-
1st. What ia granted by express words.
2d. What by necessary application.
In the third section of the charier are tlicM
words: "And be it further enacted by tbe au-
thority aforesaid, that, for tbe purpose of reim-
bursing the said proprietors the money ex-
pended or to be eTipended, in building and »up-
poriing the said bridge, a toll be, and hereby ii
granted and estabtialied for the sole hene6t of
the said proprietors."
Upon the authorities already cited, and upoa
tbe strong reason of tbe caae, these words vest,
absolutely, in the grantees a franchise, without
condition and without reservation; and tUi
franchise is property, recognized as such and
protected as such, both by the Jaw of England
and by the law of this country. In order, then,
to make this protection which tbe law^affoida,
available, it must be eiccluaivc to some extent;
enouph, at least, to keep down ruioous com-
petition.
AU this b eonterred upon aad vested in 0»
Tbk CHARi-Efl ttim BaiDOE t. Th> Wabhe:* BiiDaB bt U.
.mptoo'B
RnportK, 57 and 400 in the Exchequer, ft ap
pen.™ that > charter was grsnted to the Cot-
poration of Stamford, in the 13th of B Annv,
with a right to take toll, without aaying how
much. Chief Baron Alexander iay«: "Wethint;
that where a grant of tolli Is found In a chEir
t«r, the word ought to have some meaning, and
the charter Rome operation; and that It can re-
ceive operation only by being conitmed to
mpitn a reasonable toll.' He gora on to tay:
"If wc were to decide apnirat tliia charter upon
the principles contended for, we »hould shake
the security of a vaat muaa of property, which
has been enjoyed, undisturbed, for, perhaps,
kges."
Asnin, It ia declared expressly that this toll
shall continue for and during the period of
forty yeara. What is the meaning of this
limitation? The bridge la to remain, and be
dcllTered to the government In good repair, at
the end of the term. If the corporation are
merely tenants at wilt of this franchiae; If the
44S'] I-egialature can eject 'thcra at pleaa-
urei if tbcy can rightfully shorten the term,
when they please, and as much aa they please;
the limitation to forty years, exprcHaed in the
charter bci^omes absurd and contradictory. It
mtut, however, be construed to mean aome-
(hlng; and tt can iiave no reasonable or con-
sistent meaning, but that of an absolute, im-
condltional grant of tqjla for forty yeara.
Again, the maintenance of the bridge, and
'he aonulty to the college, run with the char-
ter; and the grant of tolla ia made, in expreas
words, for tiiese two objecta. Here, then, are
t\ro obligations imposed hj the charter — one to
support the bridge, which amounts, upon an
average, to about Gve thouaand dollars a year,
and the other to pay to the college two hun-
dred pounda a year; and ■ toll la eranted aa
the means, and the only meani, of futfllling
these obligations: and yet the Legislature, tlie
grantors of this charter, claim and exercise the
right of wholly withdrawing these means from
tha oorporation by an indirect act, and leaving
these obligationa upon them in their full force.
Doea not this, if anything can, impair the ob-
ligation of a contract T
Whence is derived the power or the right to
do thist Is it to be found in the charter I No.
That grants a toll for forty ^ears, absolutely,
without condition or reservation. What, then,
{■ the nature of this mysterioua power of the
gOTemment that can lawfully resume its own
grants; destroy its own contracts; disregard
the obligations of good faith, and trample upon
erery principle of equity and justleel
In the case of Wales t. Stetson (In the Sd
Mass. Rep.), Chief Justioe Parsons says: "We
are also gatisHed that the rights legally vested
in this or any corporation, cannot be eontrolteil
or destroyed by any subsequent statute, unless
• power for that purpose t>e reserved to the
Legislature, In the act of in oorporation."
This case, litce the one at the bar, was • grant
of a franchiBC; sod here we have the solemn
judgment of the Supreme Court of Massachu-
setts upon its inviotabiiity, in the absence of
any auidi reserved power,
bi the case of Tha Bast India Oompany *.
Sandys, reported In the seventh rotntne of State
Trials, G56, it appears that there was this con-
dition inserted In the charter: 'That If It
should hereafter appear to hia majesty, or his
aucceasora, that that grant, or the contlnnonce
thereof, in whole or in part, should not be
profitable to hia majesty, his hein, and succea-
aom, or to this realm, it should, after notice, etc.,
he void." •Thus. It appears that even In I'itt
the opinion of Lord Chief Justice JelTries fna
feeble supporter of royal prerogative), a char-
ter could not be repealed or annulled unl't* a
power for that purpose was reserved In it to
the grantor.
Thus far the ease at bar stands upon the
very words of the grant; upon the \cg:i\ and
obvious construction of the act itself, without
rescrt to those neopsssry Implications which
arise from tha nature of the grant.
2d. What is granted by neecasary impHc*-
The general rate of law ia thus laid dowi im
Coke Litt^ 56, a: "When the law doth gin
anything to one, it giveth impliedly whatao-
ever is necessary for the taking and enjoying
the same." Plowden'a ease of the Minea, SIT:
"For the ore of gold and silver is the king's;
and if It ia, the law gives him means to come
to it, and that is hy digging; so that the power
of digging Is incidental to the thin^ Itself."
If one grant to another all the minerals in a
certain parcel of land the grantee haa the right
go upon tha land, and dig, and carry away
theo
e thing all things following shall be Ib-
cloae, may come upon the land to cut them, ste.,
etc. Finch, 45, Rule 100.
The grant of a thing earriea all thlngt In-
cluded, without which the thing granted ean-
not be had. Hobart Bep. 234; also S Coke,
Saunder's caae; 11 Coke, SZ; Lifford's caasi and
1 Williams's Saun. SSS.
Upon these authorities the only question Is,
are tolls neccaaary or esaential to the enjoy-
ment of this franchlseT Just as neoesaary and
esaential as air ia to the support of animal life.
They ore part and paroel of the fra.ochise itself
its very eascnce, substance and life.
What Is our franchise without tolIsT
It is compounded of certain rlsbts and cer-
tain obligations. The rights are: to be a corpo-
ration, with the naual powers incident to oor-
porations, such aa the right to have a common
seal; to sue and be sued; to maintain a bridge
over navigable waters; to demand toll of all
persons passing over the bridge, eto.
The obligations are; to maintain the bridge
i an expense of five thousand dollars a year;
to pay Harvard College two hundred pounda a
year, and to deliver up the bridge In good re*
'r, at the end of forty years.
The rights are without value, utterly [*44B
barren and fruitless; the obligations are oppres-
sive and lasting as the nharter. Yet a leam«j
judge, in the court below, says, 'that a trader
Inn holder, has aa good a right to be protect-
in the enjoyment of the profits of his store
inn, aa the plaintiffs have to be protected in
the eujoyment of their tolls." Is a trader'a
.hop or a taverner's license a franchise T
Since the first Wednesday nf Uorefc last, tl»
BuFUUX Couvr or thb Vsrrat StasM.
Wftrrm Bridge Iiu been free; knd the nceea- 1
aary coiiHquenoe hui fo1IoiT«d, vii., the entire
dratruction of the plaintilTa rrandiise. One
thing mure remaina to be done, and then the
vork will be flniahed. Tlie Attornej-General
will be directed to file k quo warranto agkinat
the corporation for noncompliance with Bomo
of itt public dutiea, and a decree of forfeiture
of the frnnchiee will be obtained. Thii muat
Inevitablj happen, unlcM it can be presumed-
that this corporation will contioue to maintain
the bridge at their own private ezpenM for the
public accomniodation. The government will
then have got into tbeir poascesion two bridge e,
without llic expenditure of a dollar: one having
been priid for out of the fruits of the franchise
of Churlca River Bridge, and the other obtained
by a decree of forfeiture, for not complying
with its obligationa.
In the menntime, the proprietor! of Charles
Itlver Bridge may well look upon the proceed-
ing of the government with amaiement. But
a few years since, and they held a property in
this franchise, which cost them three nundred
thousand dollars; and where i* it nowl "They
are charged with no fault, neglect of duty, or
breach of any condition. No judicial process
ha* ever been issued against them, and yet,
without a cent of comnensation, they arc
stripped ol thia property by the mere foroe of
legislation. By what transcendental logic can
■n(^ a result be justified UDon any principtea of
law, equity, or good faith.
Among the various pretenses that have been
put forth in justification of the act eomplained
of, is this, to wit; that the charter is nothing
more than a license to obstruct navigable waters.
In the 15th vol. Viner's Abr., p. M, License,
E, it is said, if a certain time is limited, it is
not revocable, though the thing ii not done,
license executed is not counterman dable.
The same law is, II one license me and mj
heir* to come and hunt in his park. It is neces-
■ary for me to have this license in writing; for
44S*] 'something passes by the license in
perpetuity; but if the license be to me to hunt
once in bis park, this Is good without writing,
for no inheritance passes. 11 Henry VII., p. B.
There is a great diversity between a license
In fact which giveth an interest, and a licenso
in fact which giveth only an authority, or dis-
pensation; for the one is not to be counter-
manded, hut the other is.
A licenw la revocable unless a certain time
la fixed. Sir William Webb v. Paternoster,
Popham Rep., 181; Taylor ». Waters, Taun-
ton's Rep., 874; Uggins r. Inge, 6 Moore &
Paine, 712.
8o it appears that if a license is in writing to
one and hi* bein, it is not revocable. 2d. II
it passes an interest, It is not revocable; and
Sd. If it la for a time limited, It la not revoca-
ble. The case at bar embraeea all theae; it ia
in writing, it pasae* an Intereat, and is for a
Ume limited.
The grant to the proprietora of the Charles
Uver Bridge, both by eipresa words and by
nocesaary implication, vesta in them absolutely,
a franchise, a beneficial intereat, for forty
raars; and this interest oonsista of a right to
(•vy money according to oertaio fixed rate*,
npon the line and course «f travel between
Charleatown and Boatoo.
I>4
Bnt It la aaid that a line of tiavel b mr*
tain, and cannot be defiiied; that it ottn
changes, according to the exigenoea of aodaty.
And this to some extent, ia doubtlesa true; and
it ia also true that from the changes that are
constantly taking place in human alTaira, a
bridge or ferry may be subjected to incidental
injuries. It sometimes t "■- '
Quential damage may be
ing out of the lawful ui
other. The grant of the West Bostoii Bridge
and of the Canal Bridge, aCtected in some de-
gree the income of Charles River Bridge; but
these were between dillerent termini, opening
new avenues into the country, and giving bettor
accommodation to a large amount of popula-
tion. They were grants of similar franchises,
called for by public exigencies; and not direct.
ly and apparently intentionally interfering with
former grant*. The revival of Wlnnisemmit
Ferry has somewhat diminiahed the travel
through Charleatown; but it is tjetwcen Boston
and Chelsea, and ia coeval with the ancient
ferry between Boston and Cbarlcstown. What-
ever damage, therefore, ia aulfered, ariaing from
the changes or progress of society, from politi-
cal or commercial arrangementa; from the nat-
ural course of business or industry, ia regarded,
and 'must be borne as merely inciden- [*44I
tal, But the voluntary, direct, and fatal ac-
tion of the government upon its own former
grant, is not incidental, and does not belong to
cases of consequential damage.
The facts in the case at bar are peculiar, and
distinguish it from all otfier cases of a similar
nature. The abutments of the two bridges ar*
two hundred and sixty feet apart on th*
Charlestown side; and the avenues to then
meet in Charlestown Square, at the distance of
about four hundred feet from tike abutments.
On the Boston side, the abutments of the two
bridges are about nine hundred feet apart, and
the avenues to them meet in Boston, at the
distance of atmut fourteen hundred feet. The
distance from Charleatown Square to all tlw
business parts of Boston, over these bridges, is
within a few feet the same; ao that the same
accommodation ia afforded by both bridgea
Now, a* all the roads leading into and from
Charleatown, terminate, or cross each other in
this aquare, it follows that all the travel which
now goes over the Warren Bridge would, with
equal convenience, have gone over Charles River
Bridge, if that had been the only avenus be-
tween Boston and Charlestown. The new
bridge baa connected no new line of travel with
the old; it has not shortened the distance b«-
tween the two termini, nor given any other ad-
ditional accommodation, than two parallel
bridge* given over one. Of the necessity of
two bridges, some judgment may be formed
from this fact: about three thousand foot pas-
sengers passed over Charlea River Bridge In
one day, and about seven hundred and fifty
vehicles of all descriptions, as appears b; the
record; about eighty thousand foot passengers,
and four thousand vehicles go over London
Bridge every day.
The travel, therefore, from Charlestown t«
Boston Is a unit; it is now, and always has
been, and always must be, the same line ol
travel. The grant of the Warren Bridge, there-
fore, which, wbilr It was a toll bridire. diverted
IBI7
Tern Ouun Bma Bupa v. Tbb Waubh BtBU i
MT
two thlrdi of thti tr&Tel fnnn CfaarWa Rlwr
BrUge, and since it haa beeoine Free, div«rti
the whole: ia a grant of the tame franchiie.
It la, in itt eHect And operation, the entire
deatroetioii of propertr, held bj an older title;
the raumption of a grant which thia court baa
daclared to be a eontt«ct executed; b; which
the rights of tbe gntntor are forever extin-
gniahed, end a covenant implied on his part
IHTer to re-awert his rights. But in the case
*t bar, the grantor baa re-asaertcd his right
over this franchiee; and has thus Impaired tlM
obligation of his contract.
A learned judge in the court below. In com-
448*] mcnting upon the extent *of the tran-
ehiw of the bridjte, remark! that it is either
confined to the planks, or ia other words, has
no local extent; or else, extends to the old
bridge In Cnmbridge, a distance of some three
or four miles.
Now, It Is a little remarkable that the pro-
prietors of the Charles River Bridge do not
sow, and never hare claimed any such local
extent; all they have ever claimed, or do now
elaim, b an exclusive right between Churtes-
towu and Boston. Yet, in order to make the
claim odious, it is represented aa extending
o*«r the whole river.
But how doe* the learned judge get at hia
Otmelnaion that the extent of thta (ranchine is
either everything or nothing? Not surely from
the dec)anitionB of the proprietors, for they
luLVe uniformly limited their right in the man-
nar stated; not from the books of common law,
for in them, the rule ie stated with great uni-
formity and preeition, and runs through the
whole current of authorities, from Henry VI.
to the present time. The rule of the common
Ikw is, that if a rival market, bridge, or ferry,
fa erected so near an existing one as to draw
nway Its custom, essentially to impair its value,
materially to dirainiafa its income or profits;
near in a positive sense, so near as to produce
nfaious competition, etc, etc., it shall be
But it is asked, what and where are the
boundaries of tbe rigbtsT And because they
cannot put their finger on the precise spot in
the river, where private right ends and public
right begins, thfy have so right at all ; because
the eomnion law does not, unhappily, furnish
a p«ir of compasses to measure the exact local
extent of this franchise, it has no extent at
nil, because it does not cover the whole river,
it ia confined to the width of the bridge.
Does the law, or do learned judge* deal with
nniULDces on the land in this wayt How near
to a dwelling house may one establish a noi-
•ome or unwboletome manufactory I Uoea tbe
oommon law measure the dietance, and say,
here It shall be deemed a sufsanoe, and there It
■bail not! And how is It to be determined
whether It be a nuisance or not, but by the
faetT It is a matter of avidenee, and Is to be
prored like any other fact. Is tbe atmospfaere
tiled with a noxious efflnvlaT Are the com-
fort and value of the dwelling Impaired by this
MUbliahmentt Then it is a nuisance, whether
it be at tbe distance of ten rods or half a mila
B* in the caee at bar; It is the faet rather than
tbe dietance, that ie to determine whether a
ttni bddfe is a nuisance or not. Doe* it great-
44f*] ly impftli the value *oI the aUer faaa-
ehiser Doe* it essentially dimfaiMi ita pro&taT
Does it wholly ruin it! Tbeee are all matters o(
evidence; facts to be proved, and courts and
juries, in tbe exercise of a sound discretion
upon all the facts and circumstances of each
particular case, will give a reasonable proteO'
tion to the property in these franchise, by giv-
ing them a reasonable extent.
But it is argued that when the charter of
Charles River Bridge was extended for thirty
yean, in the year 179Z, notice was given to all
the world by a legislative act that the proprie-
tor* had no exclusive right; and that inasmuch
as they took their extended charter, with thia
notice^ it Is now too late to set up any such
right.
The act incorporating tbe proprietors of tho
West Boston Bridge was passed on the Dth of
March, 179Z; and in the 3th section of that act
it is enacted that the proprietors of Charlee
River Bridge shall continue to be a corporation
and body politic, for and during the term of
ity years, to be computed from the day
conditions and regulations prescribed ii
entitled, "An Act incorporating certain peraons
for the purpose of building a bridge over
Charles River, between Boston and Cbarlea-
town, and supporting the same during the t^rm
of forty years, and during the aforesaid term
of seventy years, the said proprietors of Charles
River Bridge shall, and may continue to collect
and receive alt the toll granted by the aforesaid
act for their use and ^nefit." There is, then,
a proviso that the proprietors shall relinquish
the additional toll on the Lord's day, and shall
continue to pay the annuity to the college, etc,
Thia extension of the charter of Charlea River
Bridge was made as set forth in the preamhlo
to the grant;
"Whereas, the erection of Charles Elver
Bridge was a work of haurd and utility, and
another bridge in the place proposed for the
West Boston Bridge may diminish the emolu-
ments of Charles River Bridge, therefore," eta.
The notice referred to is contained in the re-
port of a committee, to whom had been referred
the petition for the West Boston Bridge, and
the remonatranoe of Charles River Bridge, and
is in these words: "The committee further re-
port that after attending to tbe memorial of the
propriettna of Charles River Bridge, and hear-
ing them fully on the subject, they are of the
opinion that there is no eround to maintain that
the act incorporating the proprietora for the
purpoae of *building a bridge from [*4ftU
Cbarleatown to Boeton, i* an exclusive grant of
the right to build over tbe waters of that rivei."
Su<m is the opinion of a committee; and sup-
posing it to have been adopted by the Legisla-
ture, it would then be the opinion of that body,
and nothing more. How then can this opinion
affect or control tbe rights of the proprietors,
held by them under a former grant! If, in-
stead of being an opinion nterel^, it had been
a declaratory act; still all the nghts vested in
tbe proprietors by their charter of 1783 would
have remained in full force and effect; and the
charter of 1702 is merely a continuance of the
first, with all its rights, etc., etc., and subject
to all its obligations. As thia iadmtim of the
Simua Oorar ov thb OnnD Statv.
Legiilature mafcM no part of tlie Aot of 1702,
kll the right* which belonged to the propriaton
in lT8fi belonged to thetn e<fually in 1792. If
BUBh a declaration had been maerted in the act
ftielf, extending the term to aeventj' jreara, and
the act had be«n aocepted, the proprietors might
have been bound by it.
'But the import and meaning of this opinion
have been miataken. It doea not denj any
claim made by the plaintiffB, but ia entirel;
Gonsiatent with it. It doei not deny that the
Ktprietora have an exclusive right between
ttan and Charleatown, but does deny tbat
they have an encluaive rifrht over the whole
river. There waa- a petition before this com-
mittee for nnother bridge— not from CharleR-
town to Boston, but from Cambridge to Boston
— and the committee say to the rcmonatranta,
your exclusive right does not extend to Oani-
bridgc, a diatance of two miles; it is not an
"exwisive right to build over the waters of
Charles River;" but inasmuch as the proposed
bridge may affect your emoluments, we recom-
mend an extension of your ebarter. It wai seen
that the proposed bridge would cause a conse-
quential damage to Cliarlea River Bridge, and
it was on that ground that the proprietors ap-
pealed to the equity of the Legislature; and it
was on that ground alone, as tbey expressly
declare, that the Legislature granted an exten-
sion of their charter for thirty years.
In thR following cases, an exclusive right in
ferries is fully maintained : Churchman v.
Tunsta! (Hsrdres' Rep. 162), Tripp v. Frank
(4 Term Rep. 606), Chadwick's case (2 Dane's
Abr. 683). The case of Itaztej r. Field, re-
cently decided in the Exchequer, is reported in
the 2d vol. of Crampton, Mason ft Roscoe, 432;
and also in the I31h No. Law Journal, 239. In
this case, Lord Abinger reviews the whole doc-
trine In relation to this franchise; beginning
with the CHrli'^t. cnses, and confirming all the
481"] princifiU^ which are neressary to 'the
support of the case at bar. The case of The
Islington Market recently reported in the 13lst
No. of the Legal Examiner; in which the opin-
ion of the nine judges is given upon a BeripH of
questions touching the franchise of a market,
put to them by the House of Lords; reviews
and conDrnis all the doctrines advanced in sup-
port of the plaintiffa' claim in this case, and
shows, most conclusively, what the law of Eng-
land is St this present time. The law there, is
essentially and truly, now, what it was three
centuries ago, in relation to all these franchises;
end unless it can be shown that this law boa
been overruled by adjudged cases, or modified
by ststute, it is now the taw of this country.
Much has been said in the course of this con-
troversy of monopolies, and exclusive privi-
leges, and these have been fruitful thamea of
declamation. And what is a monopoly but a
bad name, given to anything for a bad purposeT
Such certainly has been the use of the word in
it* application to this case. It is worth a ded-
traOic in some particular article; such sa buy-
ing and selling sugar and coffee, or cotton, in
derogation of a common right. Every man has
natural ri^ht to buy and sell these article*:
but when tbi* right which U
exclusively to one. But tSe grant of a franchise
is Dot a moDopoly, for it is not part or p&rcel of
a common right. No man has a right to build
a bridge over a navigabla river, or set up a
ferry, without the authority of the State. AU
State. They belong to the sovereign, and when
they ore granted to individuals or corporations,
they are In no sense monopolies; because they
are not In derogation of comman right.
But it is said that the I.£gislHture has a right
in its discretion to grant ferries, bridges, turn-
pikes, and railroads, whenever public conven-
ience requires it; and that of this convenience
or necessity they are the exclusive judges. I
slate the proposition as broadly as it has ever
been laid down, because I have no wish to avoid
its just consideration.
It is admitted, then, that the I^egialnture has
a general authority over thpse subjects; but
it is nevertheless a limited authority. It
'is not omnipotent like that of the {*45S
British Parliament, bnt is subjected to many
restraints and limitations. A State Legislature
can do wrong, and has done wron^; and this
court has correcti-d their errors, and restuiW
the rights which had, inadvertently, of coursi-.
bet!n invaded or taken away.
The peoplH in farming their constitutioDS of
government have imposed mnny restraints upoa
the exercise of the legislative power. They
hava inserted in many of their constltntions
certain fundamental principles which were in-
tended to limit, or wholly withdraw tbem f rom
the power of the Legislature. They cannot
abridge the liberty of speech or of the press:
pass ex post facto laws; suspend the writ of
habeas corpus; or take private property for
public uxe without compensation.
These limitntionB and restraint* upon the ex-
ercise of legislative power in Massacbusetts are
imposed by its own constitution.
There are restraints imposed by the Constitu-
tion of the United States upon all State legisla-
tion; and one very important restraint, a diz^re-
card of which, in the opinion of the plaintiffs,
has brooght this cause before this court, ia, that
no State shall pass any law impairing the obli-
gation of contrajita. The power conferred on
this court by the Constitutiun of the United
Ststes, of controlling, in certain specific csse>,
Stat* legislation, has given, and was intended
to give, in the language of this court, *'a bill
of rights to the people of each State." The ex-
ercise of this ultimate conservative power, con-
stitutes one of the highest functions of this
court. The wise men who framed this Consti-
tuttoD elesrly disoemed in the multiform opera-
tiona of human passions and interests, the nec-
essity for some calm, controlling power; and in
conferring ft upon this court, they exhibited
the nKist profound wisdom, guided fay human
eiperience.
The legislative power is restrained and Un-
ited by tne principles of natural justice.
In the COM of Calder r. Bull (S Dallas^ Bep.
386), Judge Chose says: "There are certain vital
principles in our free republican gove
which will determine and orermto m
ant ■•»! nB<r<-aT>t shiiu nf l«nali
I an appar-
U37
Thi CBABim Bim Bwdsb t. Tbs Wabmeei Bbumk r ai-
te antkorlM nuurifeit InJaiHce hj potltiT* Uw,
or to tkke awaj that Mcurity for panonal lib-
erty or private property, for the protection
whereof goTemment was eatabllalitd. An act
of the L^elature, for I cannot call it a law,
«ontr*ry to the first great prinetpiei of the
•oeial oompect, cannot be conBidered a right-
ful exerciae of leglelatlve aathority. Tlie ob-
4ftS* j llgatlMi of a law, 'in goTemmenta estab-
lished on exprcH oorapaet, and on repnUican
principle*, miut be determined by tlie nature ol
iba power on which it ia founikd. A few iu-
•tanees will be lufHciciit to explain what I mean.
A law that puniabea a citisen for an innocent
notion, or, in other words, which when done,
w«a In -violation of no existing law; a law that
deatroye or impaira lawful private contract!; a
law tbat nuikee a man » judge in bis own caaa;
or * law tbal talcee property from A and gives
It to B; it IB against all reason and justice, for
a people to intrust a legialatnre with such pow-
er; and theiefon it cannot be preeumed that
they liave done it. The geniue, the nature,
and the apirit of our State govern me nta, amount
to a prohibition of such acts of legislation; and
the general principles of law and reason forbid
them; tbe Liegislature may enjoin, permit, for-
Ind, and punish; they may declare new crimes,
and establish rules of conduct for all their cili-
■ana in future caeca; they may command what
Is right, and prohibit what is wrong; but they
cannot change innocence into guilt, or punish
Innocence aa a crime; or violate tbe right of an
antecedent lawful private contract, or the right
of private property."
In the ease of Flecher t. Pack (6 Craneh's
Bep.], tbe court say: When, then, a law is in
Ha nature a contract; when absolute rights
haTe Tested under that contract a repeal of that
law cannot devest those rights; and the act of
UUinlling them, if legitimate, is rendered so by
« power applicable to the case of every indi-
Tidtial in the community.
It may well be doubted whether the nature
nf aocsety and of government does not prescriln
•ome limits to the legislative power; end if eny
be prescribed, where are they to be found, if
the property of an individual, fairly and hon-
aatly acquired, may be aeiied without compeu-
To the Legislature, all legislative power is
granted; but the question, whether the act of
iranaferring the property of an individual to
th» public, be in the nature of the legislative
power, is well worthy of serious reflection.
Kegarding tbe practical operation and effect
of the Warren Bridge charter upon the rights
and property of tlie plaintiffs, the ease at bar
oomca clearly within the scope of the remarks
dted from Dallas and Cranch. In point of
fact, it talcee the property of the plaintiffs, and
giTes it to the public. It Is, in its operation, an
■et of confiscation. It violates all thoss dis-
tteetions of right and wrong, of justice and
414*] 'injustice, whieh lie at the foundation
of all law, and of ail government; and if men
war* to deal with each other as this act dealt
with the plaintlflfs, the rary framework of our
dril polity would hi broken down; all eonfl-
denoe would be deatrajed, and all sense of se-
«nity f4w the rights of persona and property
would b« lost.
Agaia. the IsgisUtira powsr Is nstiainedand
limited by its own former grants. In OUttyll
Prerogatives of tlw Grown (page 132) he sayst
"It is a principle of law that tlie king is bonnd
by his own and his ancestors' grants, and can-
not, therefore, by his mere prerogative, take
away vested rights, immunities, or privUeKes."
The same identical franchise which has Men
granted to one cannot be granted to another.
The grant of a franchise is as much a grant of
property ss a grant of land ; and if a grant of a
franchise can be resumed or annulled, ao can a
grant of land. Both are portions of tbe poUle
property; both vest in the grantees a property,
a beneficial interest, and In both, tbs grant is a
contract execute J.
Sinee this suit has been pending, a very im-
Ertant caHc has been decided in the Buprems
urt of Appeals in the State of Maryland. It
is the case of The Canal Company r. The Rail
Road Company, and is reported In tbe 4th vol.
of Gill t Johnson's Reports.
The Canai Company's was the prior grant.
Surveys of the route for each of these great tn-
temsl works had been made; and it was found
that they approached so near each other at a
place called the Point of Rocks, that there was
not room enough for both between the rocks
and the river. In making these surveys, the
Rail Road Company had preceded the other
company, they had located their route; pwr-
chuKed and condemned the land neoesaary for
their purpose; when their progress was ar.
rested by an injunction, st the instance of the
Canal Cumpany, who found it to be impracti-
cable to construct tlieir canal by the side of tbe
railroad. And t^e question was, which bad
the prior right; and the court, in a very elab-
orate opinion, decided it in favor of tbe prior
grant. This ease is before the court, and many
of the points discussed and determined In the
case, are among the important points to be de-
cided in this.
Within all these distinctions, there was, and
always will be ample room for the Legislature
to provide every convenience and accommoda-
tion that public e:cigeiicles may renutre. And
this can be done without resuming former
grants, or takinjr private property withoat com-
They might have seized the plaintiffs' fran-
chise in the exercise of *the eminent [*4BS
domain. All the property in the State, under
whatever title it may be held, may be thti*
taken for public nse; but upon the simple con-
dition of making a reasonable compensation
for it. The Legislature, however, did not pro-
ceed in the exercise of this high power to pro-
vide for the public accommodation; but they
took the property without paying for It.
Or they might have accepted tbe offer of the
plaintiffs, as set forth in their memorial o "
Legislature would give them the necessary a
thorit^, to make the avenues to the bridge oi
any given width; to eonatruet a circular draw,
BO that passengers should not be delayed when
vessels were passing through; to make tho
bridge Itself as much wider as should ba
deemed convenient; to construct a spur bridgo,
and even to build a new bridge; thus submit-
ting the whole matter to the judgment of th»
Legislature, and pledging themselves to do al.
SnnDis Conrr t» xbx Unim SxuBk
l«t7
and wIwUoeTw tlwj aioulA ftuthorize sad
direct them to do, In proTiding for th« publie
keoonraod atlon.
This offer waa declined, and no re&aon* ^Tsn)
knd It U admitted, thftt they were not abaolute-
1t bonad to accept it, or to give re«w>iu for
their reftual; but it la eertaimj open to such
Inferences as the (acta of their case will wajraiit.
But it is repeated again and again tbat the
Legislature bad found the foet that the conTen-
le&M of the public required onotber arenue
from Charlestown to Boaton. What then I
Does the finding of this fact justify anj and
all sorts of legislation! la It any excuse or
justification for the resumption of a franchiae;
for the annihilation of a vast amount of prop-
erty without oompensation t The fact may be
mads the baais of legialatioD, but affords no
excuse for unjust or unconstitutional legialatiou.
In the case of The Talington Market, before
cited, the House of Lorda found the fact that
public convenience required an enlargement of
the old market, or the establishment of a new
one. A bill was pending for a new market,
and the House of Lords, instead of proceeding
to pass the act, thought it proper to piit a series
of questions relating to the matter, to the nine
Judges. They inquired of the judeea what wos
the law; what they could do touching this mar-
ket, consiatentlj with the exiating rights of
others. The answers are given at large; and
if the law, which is there declared to be the
law of England, had been applied to the plain-
4ftS*} tiSa' case, when the 'act eatablisbitiK
the Warren Bridge was pending, it never would
and never could hare passed.
But the Legislature proceeded to authoriio
the bridge to be built, and granted a toll, out
of which the whole expense was to be paid.
Accordingly, the bridge was built, and paid
(or out of the tolla received. That being done,
the functions of the Legislature ceased. They
had provided another avenue, and paid for it,
and tliere their duty to the public ended.
Was it a matter of common convenience, or
of public necessity, that the government, after
paying for the bridge out of the tolls, should
put twenty thousand dollars a year into the
public treasury, or which is the same thing,
give it to the publici la any man bold enough
to vindicate the act upon this ground 1 With
the same right, the government might have re-
pealed the plaintiffs" charter, or passed an act
requiriikg the tolls to be paid into the public
treasury. The indirect way in which the
franchiae haa been destroyed does not alter the
Jrinciple, for what cannot lawfully be done
irectty, cannot be done indirectly.
The sole basis of the proceeding waa that
public convenience required another bridge,
and it waa justified by its advocates on this
ground alone: the moment, therefore, that the
BOvemment began to fill its coffers from the
folia, !t lost its original character, and as-
aumed a new one. It then became a matter
wit: providing some further accommodatloa
(or the public tnrel, for there is, at this mo-
ment, but ome traveled avenue between Bos-
ton and Oiarleatown. Since the Warraa
Bridge wu Buda tree, all tha tnirel ii «m
that bridge; to wUcb, If wa now add tb« ta-
erease of f ravel for the lost twelve years, and
the amount drawn from the other bridcos, U
will be found that the travd over thla ooa
bridge b nearly double what it enr waa over
Charles River Bridge. Yet the ineonven-
iencea and dangers of pawing over Charlaa
Hirer Bridge twelv« yean ago were ao great
that the Legislature, oat of tender regard for
th« safety of the people, granted anotlMr
avenue. Now, though Uiere U nearly twice
as mudt travel over this new avenue, no in-
oonvenienoa Is azperienead, and no complaint
The ground upon which the plaintifti have
always rested their causa waa ^is — that tlwir
rights and their duties wtre eommensurate;
'they have always claimed an eielosive [*-IST
right between Charleatown and Boston, and
they hare alwa^ stood ready to fulfill all tlie
obligationa which that ri^t Imposed. 6adi
la uia law of England with rward to theae
franchise*, as it is clearly stated in the coaea
of Tripp V. Frank, Euuy v. Field, already
cited in relation to ferries, and the eases of
Prince V. Lewis (G Bam. A. Cres.) and Moaely
T. Walker (7 Bam. and Ores.), in relation to
markets. The memorial of the plaintiffs is
founded upon this reciprocity of rights and
duties; and all the English easea ^ upon the
principle that the extent of the one u the meaa-
ure of the other.
1 do not go into any argument to prove that
the plaintiffs' charter is a contract, but merely
refer the court to the following case*: Fletcber
V. Peck, a Cranoh, 87; New Jersey v. Wilaon,
lb. 164; Terret v. Taylor, 0 Craneh, 49; 4
Wheat, filfl; 8 lb. S4; lb. SO.
But it is said that if the Legislature of Hae-
sachuaetts hu taken private property for publie
use, without compensation, the remedy is in the
courts of the State. It ia possible that the
case here supposed may happen, althouglt it ia
not the cose at bar. Whatever may be the
abuaea of legislative power; wliatever injuriea
may be inflicted upon the rights of penoaa or
of property; still, if the obligation of a con-
tract is not impaired, or some one of the ape-
cific provisions of the Constitution of the United
Statoa, imposing restraints and prohibitioas
upon the States, ia not violated, thia eoort baa
no juriadiction. i Pet. 412, 413.
If property held under a grant fron tli«
Btate is token, in the exerciaa of the eminent
domain, provision for compensation la always
made in the act, and in sudi easea no questions
can ariae; as the property ia token by a para-
mount authority, and paid for. But, If pn^
erty thua held is taken, and no eompenaHtion
ia provided, it does give this court junadietioa;
because this grant ia declared to be a
executed; the rights of the grantor s
be forever extinguiahed, and a eovi
pUed never to re-asaert them. Wlien, thera-
thia property thus held is raaiuned ae de-
laroken, and tha jttrisdictian of thia eoort «•
Now, what Is the aapeet of the com at her.
In relation to thia matter I What iaaue* do the
pleadings present (or the deciidon ol tUa
oourtl The allegation in the plainti&' UD la
tut tU lot ol UUt Uuob. UB8. Ia rvpnjptti^
lS:>i
Tux CuAKUES Eivut UiiuuL V. TuM Wasmcm Baiaw *r HL.
«n
lo (be ConitttntfoB of the United Sttitei, be-
cftuae it imptira the ohligationa of a contract.
4&8*] The defendanlB in 'their answer don;
this; and thus the onl; iasue it formed upoa
which thia oourt can found a decree. Ths
Ctaintiffs nowhere affirm that private property
•a been taken far public uae bf the State, in
the exercise of the eminent domain; nor do
the defenilaiita allege it, nor do the court be-
lowi on the contiary Chief Juatice Parker aaja
(7 Pickering, G30) that "there will be a decree
•gainet tlie plaiallffs, in order that thej may
•Tail themaelvea of the right aecur^ to them
bj the Conatitution and laws of a leviaion by
the Supreme Court of the United States; where
it ia hiehl; proper that this question, depend-
ing, aa 1 think it does, mainly upon the Con-
it ituti on of the United States, ahauld he ulti-
mately decided." The decree of the court be-
low aiao aaserta that no private property ha*
been taken for public uae.
It ia also apparent from the act itaelf that
tha Legiilature dirl not intend to aeize the
franchise of the plain tiffs by virtue of tlie
eminent domain; for they made no provision in
the act for compeiiaation. Now, it ia the set-
tled law of MasBBchuaetta that in all caaea
where private property ia taken for public uae,
provision for compensation must he made in
the act Itself. But in the case at bar, it ap-
pear* that the Legislature carefully avoided the
open and avowed intention of eseitlng this high
power conHded to them hy the Constitution, by
making provision for compensation only in
caaes where real eatate sliould he taken. The
Constitution says that where property is taken
for public use, compensation shall he made; tha
I.egislature aay in this act that where real
eatBt« ia taken, compensation shall be made-
Now, tbia franchise of the plaintifTs ia not real
•atate, although it is property; and hy this ex-
cduaion of the word "property," it is most mani-
fest that the Legislature did not Intend, and
did not, in fact, seize the franchiae as private
property for public use. They proceeded on
the ground of right to make the grant in ques-
tion, without compensation; thia right is de-
nied on the ground that it resumes or deatroya
a former grant, and thua impair* the obligation
of a contract. This, then, presents the issue,
and the only one of which tnis court has juris-
diction.
It li admitted that the right of eminent do-
main i* en incident of eovereigoty, and ean-
Bot be alienated. And it is also admitted that
»11 the property of the citizens of the State is
li*bte to the exercise of this paramount au-
thority. No matter by what title it i* held, it
la all alike aubject to be taken for public use.
The axercioe of thia power, however, is restrict-
•d hy an express provision in the Btato
451*1 "Conatitution that compensation shall
bo made. This fundamental law is inserted in
Um Constitution of the United States, a« well
■a in that of many of the States; and the fol-
lowing cases show how fully thia principle has
b>Mn recognized and acted upon by tlie judicial
tribunals of the country: 2 Dalt. 304; 9 Cranch,
Ui 2 Pet. 65S; I Kent's Commentariea, 42fi;
t Johnaon'a Chancery Case^ 168; 18 Haas. Bep.
4dBi 7 Uaa*. Bep. 396.
"n* dootrine of eon*equential damages,
■MMtbnaa refsrrcd to in tk« eonrt below, can
on the ground that the grant of the Wftrm
Bridge does not impair the former grant; or if
it does, that the plaintilTs are not entitled to
compensation. In making the grant, it i* m-
Bumed that the Legislature merety granted
what was its own; and if the plalntilfs have
suffered by the exercise of a lawful power, it is
a case of damnum absque injuria, for whidi tha
taw gives no remedy. This argument, aa ap-
filied to the case in the court below by a
earned judge, assumes the whole matter in dis-
pute, and ni-ed not, therefore, be further pur-
sued; but I would merely ask whether any
casa can be found to which this doctrine hu
been applied in justification, in which the consa-
3uent)al injury haa been not partial and Ind-
ental, hut total
It has been often repeated that the plaintiff*
have received more than a million of doltara, in
the course of about fifty years, and it is urged
that this ia a sulGeient conaideration for build-
ing and maintaining the bridge; and that no
injustice ia done by cutting off twenty years of
the term. Even a learned judge in the court
below eaya that the conaideration should be in
"some meaaure adequate." And ia not a good,
a valid, a meritorious conaideration. In aome
measure adequate! Was it not, at the time of
the contract, fully adequate! And can one of
the parties rescind it now, because it ha*
turned out to be more beneficial than was an-
ticipated by either!
I will not further trespass upon the patience
of the court by showing that an Inquiry by ■
committee of the Legislature is nut equivalent
to a writ of ad quod damnum executed, whieh
ia a judicial process; because I bavc already
shown that even auch a process in England Is
not concluaivs upon tbe rights of the parties.
If, therefore, it were equivalent, it would set-
tle nothing; but It has no resemblance to it,
and it ia not worthy of further notice.
Upon the validity of thia Act of the 12tb of
March, 1S2B, thia court have now to pronounce
a final judgment, which must decide 'the [*4II0
title to a vast amount oF property. This prop-
erty haa been held under a grant from the
State for nearly half a century: it has bean
bought and sold in open market, under the eye
of the government; it has been taken in pay-
ment of debts and legacies; dietributed in
every form, in the settlement of estates, with-
out notice, or even a suspicion, that the title
WM bad. It haa been for man^ yeara souftht
for a* a aafe and profitable investment, By
guardians, tnisteea. charitable instttullona
and such other penons as are obliged to intruat
their property to tbe management of others, tn
whom they place confidence. And yet tlnst
ners of this property, who have purchased,
taken it, at Its market value, and who ban
t received more than the legal interest of
eir money are represented aa odious monopo-
lists, exacting enormous pniHt* upon a capital
which has been repaid to them over and ovci
again. The original stockholders are all dead;
or, if ony of them are etill living, the property
haj long since pa<isei1 out of their hands: but
if they were now living, and holders of this
property, they would not have gained more,
nor so much, by their purchase, aa those who
bought real estate at toat period, and kept it
till the present time.
BuncMi CouBT or the Uhitkd Bti-nt,
\m
Umm ownen ban no good title to this proper-
tj) and witliout judiciBl proceas or inquir]'.
conlltektei the whole to the uae of the public.
But tb< principlea to be eatablUhed oy the
Judgment of the court, In tbia caae, will decide
the title to more than teu milliuiia of dullara in
the State of Matsachuaette alone. If that
indgment aball decide that the Legislature of
HaiBBcbuBetti h»s the constitutional power to
paaa the act in question ^ what and where is the
•eeuritj for other corporate propertyT More
thMi four millions of dollars have been invest-
ed in three rmilroada, leading froin Boston,
under charter! granted by the Legislature.
The title to these franchises is no other, and
■M better, than that of the plaintiSa. The
same means may be emplojied to accompliib
the aanie ends, and who can say that the aame
raeults will not follow! Popular prejudice may
be again appealed to; and popular passions ex-
cited by passionate declarations againtt trib-
ute money, exclusiTe privileges, and odious
monopolies: and these, under skillful manage-
ment, maj be combined, and brought to bear
upon aU chartered rights, with a resistleas and
crushing power. Are we to be told that these
dangera are imaginary T That all these inter-
ests may I>e safely confided to the equity and
justice of the Legislature! That a juat and
4II*] pat«mal regard for the rights of 'prop-
erty, and the obiigatinns of good faith, will al-
i|aya afford a reasonable protection against op-
prasiion or Injuatieet I answer all such fine
•entiments by holding up the charter of Charles
RiTer Bridge, once wcrth half a million of
doilara, and now not worth the parchment it ia
mitten upon.
I have as much respect for, and confidence
in legislative bodies as reason and experience
win warrant; but I am taught by both that
they are not the safest guardians of private
rights. I look to the law; to the administration
of the law, and. above all, to the supremacy of
the law, aa it resides in this court, for the protec-
tion of the rigbte of parsons and property,
against all encroachment by the inadvertent
legislation of the Stat«s. So long as this
oourt ihall continue ta eierciae this moat aalu-
tarjr and higbast of all its functions, the whole
legulation of the country will be kept within
ita constitutional aphere of action. The result
will be general confidence, and general security.
I have thus attempted to satiafy the court
that, by virtue of an aaaignment in equity, or
a surrender at law of an ancient ferry, and the
Act of 1TS6, incorporating the plaintiff a, a
franchise or beneficial intereat was abaolutelj',
and without oonilition or reservation, vested m
them for the time limited; thut the francbiae
so vested ia recogni7.ed as property, and pro-
tected as property, both by the law of England
and of this country; that, in order to mako
this protection available, it must, of necessity,
have some local extent, aufTicient, at leaat, to
keep down ruinous competition; or, in other
woHt, that It must be exclusive between
OiarleatowD and Boston. That the grants of
1785 and 1792, oonstituting the cliarter of the
plaintiffs, being made on good, valid, adequate
and meritorious considerations, are entitled to
a liberal Gonstruction for the grantees; thnt
tbaae grants, according to the decialona of this
court, eanstitut« ft eontraot: that the Act of
tlO
March 18th, 1828, eaUbltahlflg the Warrea
Bridge Corporation, Impairs the obligation of
this contract, by reauming this francliise, and
devesting the plaintiffa of this property, with-
out compenaation ; and that their only rcmed/
is in this court, under the Conatitution of tka
United States.
Mr. Greeolcaf, for the defendants, argued,
let. That the present situation of the cause
preaented insuperable objeetiona to any decree
in favor of the plaintifl'a. The Warren B^idg^
which is the aubject of complaint, has now be-
come the property 'of the Common- [*4ta
wealth, by the terma of the original charter.
The defendants were merely authorized to In-
demnify themselves for the coat of the erection
of the bridge by collecting toHa for a period not
exceeding six years from the commencement.
They were afterwarda constituted the agents
of the Commonwealth, by apecial statutes, to
receive tolls for its uae two yeara longer; hat
those statutea having expired, the bridge baa
become free.
ready diverted from their bridge, and received
at the Warren Bridge; and, second, to prevent
the uae of the latter, aa a public way. In the
decision of tbia cause, this court will exercise |
no larger jurisdiction than waa poesessed by
the Supreme' Judicial Court of Massachusetts,
and will render no other decree than ought to
have been rendered by that tribunal. It is well
known that the people of that State, in tb*
grant of equity powers, have manifested great
reluctance, and a decided preference for tba
common law remedies; intending to preserve
the jurisdiction of the common law, "In all
cases where that ia capable of affording aub-
stantial and adequate relief." 6 Pick. 397-
iiov, for the mere diversion of tolla, there is "a
plain, adequate, and complcle remedy at law,'
by an action of the caae; and, therefore, by the
rules which the courts of that Slate have pre-
scribed to themselvea, there ii none in equity.
The only ground on which tbia part of the
claim could be sustained in equity, would be
by charging the defendanta as trustees. But
it has been held in Mossachuaetts that the
equity powers of the Supreme Judicial Court
extend only to caaea expreaaly designated by
statute, 6 Pick. 3B5, and that no trusts were
cognizable there, except those arising onder
deeds, and which are expressly declared in
writing. Dwight v. Pomeroy, 17 Masa. 327;
Safford V. Rantoul, 12 Pick. 233; Given ▼.
Simpaon, S Grcenl. 303.
The only ground, therefore, on which the
court can deal with the tolls, la, that having
poaaesaion of the bill for the purpose of injunc-
tion, it may extend its decree over all the is-
cidental equities of the cause. But tbia conrt
can make no decree which can relieve the eon-
ptainanta, because there are no parties before It
capable of obeying an injunction. The bildp
having become the property of the State,
these defendants have neither right nor power
to prevent the use of it as a way. The Cob-
monwealth Is^the only party whose ri^ta OR
to be affected by whatever decree may be
made in regard to the bridge; and no injtnte-
tion can be issued against one not wrt;
*U> the suit. Fellows t. Fellows, 4 l*4at
laar
Tm Cbabum Bivn Biumk r. Thk Wubkit Bmsoe at al
Jobu. Ck. SB. The general doctrina ol equitjr
U, thkt aJl who are neceasary to the relief, or
axe matetiallf interested in the suhject matter,
mutt b« joiaed. Saneosa t. The East India
Company, 2 Eq. Ca. Abr. 170; Davoue v. Fan-
ning, 4 Jobni. Ch. ISB; Z Mad. Ch. 179. It is
tnie tliat the interest of otlicr persona, not
partiea, i« oo valid objection where the court
can make a decree, aa between those already
before it, without affecting the rights of those
who are not called in. Mallow t. Einde, 12
Wh. lS3i Ward v. Arredondo, 1 Paine, 410. It
U alto true that if the absent patties in inter'
eat are without the jurisdiction of the court,
it will, in soma caSM, in its diacretion, pro-
ceed without them: provided their rights are
separable from those of the defendants, and
irill not be irrevocably concluded b; the decree.
Weat T. Randall, 2 Mason, 100, ISe. But if thR
righta of such absent parties are inseparably
eonaeeted with those of the parties present, no
decree will be made till they are called in.
Bedesdale'a PL 133. 148; Wiser r. Blackley, 1
Johns. Ch. 437. And this court has declared
that it will not make a ftnal decree upon the
merits of a case, unless all the persons whose
Intereats are essentially a flee ted are made
parties to the suit; though some of those per-
sona are not within the Jurisdiction of the
court. RusmIJ v. Clark, T Cranch, BD, 98. Tlie
fact that the absent party in interest is a bov-
•leign State makes no difference. The lan-
guage of the court in Osborne i. The United
States Bank, S Wheat. T3S, does not apply to
a case like the present; but only to that of a
public officer who has collected money for the
State, which be still holds, and has been noti-
fied not to pa; over; the constitutionality of
the exaction being denied. But however that
doctrine might apply to the tolls received, if
that subject were cognizable in equity by the
Supreme Judicial Court of Massachuaetts, it
cMUiot apply to the bridge itself, which is real
Erty, not belonging in equity to these
liffs, and ia, in no aense, in tne hands of
efendants. To retain jurisdiction here is
to sue the State, and virtually to effect a ju-
dicial repeal of the constitutional provision on
tlila anhject. The court, by its decree, can only
effect ao much of the bridge as coaatitutea the
nuiaance complained of; and this is, not the
cziatenee of the bridge, in its present position,
but the Dse of it aa a way. Such a decree
tbeae defendants cannot execute, and it there-
fore can afford the plaintiffs no relief.
2. The ferry, of which the plaintiffs claim to
be assignees, extended no farther than the
iMding- places, and was eubject to the control
««4'] of 'the StaU. The policy of Massa-
ebusetta, from its first settlement, has been tc
retain aJl ferries within ita own control; the
fcrrynien having nothing but a license to take
tolls, during the public will. The well known
prinolplea utd sentiments of the pilgrims were
strongly opposed to everything in the shape of
monopoly. Hence, a* early as 1636, after ■
forry had bewi aet up by Brown, between Bos-
t^ and Charleatown, another ferry, as it ia
termed, but between the same landing- pi aces,
was ordered to be set up; to be kept by a per-
•Ml, resident in Boston; dearly snowing that
!■ the Mtimation of the General Court the
sxiatlng ferrjman had no ezolusive rights there.
In 1041, the limits of all ferries were expresalf
defined by statute, aa extending from the plaos
where the ferry was granted, "to any otbef
ferry place, where ferry boats used to land:''
- - ' in the same year an act was passed in the
re of D, constitutional declaration, that no
jpolies should be granted, or allowed In
the colony. With this declaration before them,
and with such principles in view, the Legisla-
ture, in 1S50, confirmed the ferry rent to the
college; meaning not to repeal the acta of
1041, hut to permit the college to receive such
tolls aa might be collected at the ferry, subject
to any further order of the I,egislatura. On
the Bam« principles, successive statutes were
passed, in 6 W. ft M.; 8 W. 3; 4 Geo. !.; 13
(ieo. I.i and 33 Geo. H, regulating this, and
other ferries, and authorizing the Court of
Sessions to set up ferries in an^ place what-
ever, at ita discretion. If, tlien, it be true that
the history and situation of a State may be
resorted to in order to expound its legislative
intentions, aa was said in Preston v. Bowden,
1 Wheat. 115: and that charters are to be ex-
pounded as the law was undcrataod when the
charters were granted, 2 Inat. 282, it was never
the intention of the Legislature, in permitting
this ferry to be set up, to grant anytning more
than the right to run boats from one landing
to the other, during its pleasure, and subject
to its control. The ferry right was coextensive
only with the obligations of the boatmen, who
were bound merely to convey from one landing
to the other. In the exercise of this right of
the State, it has granted toll bridges at pleaa-
ure, in the place of nearly, or auite, every
ancient ferry in the Commonwealth, to the
utter annihilation of the ferry, and without in-
demnity to the ferrymen. No claim has ever
been aet up, except by these plaintiffs, adverse
to the public right.
The argument that the ferry franchise ex-
tends BO far as to put down all injurious com-
petition, is erroneously applied in this case;
as *it supposes the opening of a new [*4SS
avenue by the State, to t>e a mere private
competition. The authorities on this subject ap-
ply only to a private ferry, set up without
license. Yard v. Ford, 2 Saund. 172; Ogden r.
Gibbons, 4 Johns. Ch. 160; Stark v. M'Gowcn, 1
Nott 4, M'C. 387; The Newburg Turnpike Co.
V. Miller. S Johns. Ch. 101; Bliasett t. Hart,
Witles, 608.
In the present case, the public not being ac-
commodated, the Legislature has merely done
ita duty in providing for the public conven-
ience, which the plaintifia had not the legal
power to do. Moseley t. Walker, T B. & C. 40,
GO; MacclesQeld r. Pedley, 4 B. & A. 307.
3. But whatever may have been the extent
of the ferry, it never passed to the plaintiffs,
but was taken by the State for public use; and
waa thereby extinguished, in the paramount
righta of the sovereign power, by which it was
resumed. 17 Vin. Abr. 63; Prerog. I. b. 4; Id.
103; Prerog. X. c. 6; The King v. Capper, 0
Price. 217; Att'y-Gen. v. Marq, of Downsbire,
lb. S68. The documents in the case, negative
the idea that the transaction of 1786 amountad
to a purchase of the franchise from the college;
the object of the tolls being declared to be not
only an indemnity to the plaintiffs, but for k
revenue to the college. It is no purchsae frrm
TBI A
Sdpbbme Coubt op tbb Uhiied Statss.
m
tlw eollege, bec«uw tbe legal evidrnce, a deed,
!• WMting. Rex v. North DatTield, 3 M. & 8.
£47: PetEr *■ Keodall, e B. &, C. 703.
4. Neithar the grant of the ferry, whatever
It was, nOT the plaiotiffs' chai'ter, ontained
anything eicluafve of the public tight to open
a new avenue in the neighborhood of Chirlea
River Bridge; for in a public grant, nothing
e.iaca hy implication. The right thus said to
parted with, Ib one which is essential to the
security and well being of Bociety; intrusted
to the Legislature for purposes of government
and general good: and such rights are never
f>re«unied to be conveyed or restricted. Noth-
ng passes by a charter, or legislative grant,
except well known and essential corporate
powers, where a corporation is created; unrest
it la contained in express worda Rex v. The
Abbott of Reading, 39 E. 3, 21; 17 Vin. Abr.
138; Prerog. E. o. 6; 8 H. IV. 2; Ford * Shel-
don's case, 12 Co. 2; The Chancellor, etc. of
Cambridge v. Walgrave. Hob. 126: Stanhope *,
Bp. of Lincoln. Hob. 243; Case of Mines. Plowd.
310, 338, 337; Case of The Royal Fishprv of
the Baune, D»v. 149, 157; Cnse of Customs.
Dav, 4fi; Att'y-Gen. v. Farmen. 2 Uv. 171;
Finch's Law, KM; Blanklcy v. Winilnnlpv. 3
T. R. 379; The King v. Capper, 6 Prine. 2sa;
Id. 269; Parmeter r. Gibbs, 10 Price. 4S0. 457;
#66'] The Stourbridge 'CsBal ». Wheelev. 2
B, *. Adol. 792; The Leeds 4 Liv. Cans! v.
Hustler, 1 B. ft C. 424; The Dock Co. v. U
Marche, 8 B. ft C. 42; The Elsebe, G Rob. Adm.
165, 103; The Joseph. 1 Gal). 555; .lackson v.
Reevefl, 3 Cainea. 303, 306; M'Mutlpn v. Charles.
ton, 1 Bay, 46. 47; Zylstra v. Charleston. Id.
382; 2 Cmnch, 167; Wilkinson v. Leiand, 2 Pet.
S57; Lansing v. Smith, 4 Wend. B. The cases
where the king's grant has received a con-
struction like a private grant, are all cases of
grants of his private property, and not of
things held as sovereign, in rinht of his crown.
Upon this ground, the plaintiff's charter gave
them a franchise co. extensive with the bridge
Itself; it authorized them to erect a bridge,
and to take tolls of such persons as might pass
over it, bnt nothing more.
6. If a Dontract to that effect should be im-
Elled, it would be void for want of authority
1 the Legislature to make such a surrender of
the right of eminent domain. Every act of a
public functionary Is merely an exercise of
delegated power, intrusted to him by the peo-
ple, for a specifle purpose. The limits of the
power delegated to tbe Legislature are to be
sought not only In the Constitution, but In the
nature and ends of the power itself, and in the
objects ^f government and civil society. 6
Craneh. 136; 3 Dall. 387, 3B3; 1 Bay, 62. And
the acts of legislators are the acts of the
people only while within the powers conferred
upon them. 0 Crancb. 133. Among the powera
of government, which are essential to the
constitution and well being of civil society,
■re: not only the power of taxation, and pro-
viding for the common defense, but that of pro-
viding safe and convenient ways for the public
necesBsity and eonveni'^nce, and the right of
taking private property for public use. All
these are essential attributes of sovereignty,
without which no oommunity can well exist;
and the same necessity requires that they
ahould always continue unimpaired. They are
Intnwted to thi Legfilatnra, to ba azaMiaad.
not bartered away; and It fa ' ,
that each Legislature should assemble, with the
game measure of sovereign power that was held
by its predecessors. In regard to public prop-
erty, the power of the Legislature to allenaU
it IS conceded. The limitation now contended
of society. In regard to these, any act of tha
Legielature disabling itself from the future
exercise of its trust tor the public good mnit
be void; being, in substance, a covenant to de-
sert its paramount duty to the people. Such,
it is apprehended, would be a covenant not to
erect a fortress on a partieiitar 'tract of [*41T
land sold ; or, not to provide ways fur public
travpl, however great the oecesaity, either in
a particular place, or for a specified time. It
is not necessary that such exclusive contracts
be made, in order to induce men to adventure
in a new and hazardous undertaking for the
public good; for, upon the positive aasnranee
of remuneration, in some other foru, capital
and enterprise can always be commanded.
The true distinction between those acts «f
future legislatures which may, and those which
may not be restrained, is conceived to lie, not
in the kind of legislation, whether general or
Bpi-iiHl, but in the nature of the power pro-
])OEcd lo be restrained. Thus, a covenant not
to erect a fortress on a particular spot, ia a
covenant in restraint of special legislation;
jet it would manifestly be void. And, by a
similar enumeration and description of par-
ticular places, the right to provide railroads,
bridges and canals, in every part of the State,
might be alienated to individuals. The ex-
ample of land exempted from taxation is not
to the purpose; such exemption is presumed to
be purchased by the payment of a sum in grots,
instead of an annual tax, which all are bound
to pay. The owner of the land does not bny
up a portion of the sovereign power; he only
pays off, at once, a debt which was due by in-
stallments. Other examples are given in the
agreement not to charter another bank; and
the like. But these contracts do not abridge
any powers essentia! to civil society. Tbe
State must be governed and defended, and tha
people must have facilities for common travel;
and to these necessities the power of each
Legislature must be adequate. But the eziit-
ence of a bank is not of similar necessity; tt
stands wholly upon considerations of poliey
The existence of some limit to the exertlM
of powera thus delegated in trust, and their
inaUenable nature, is no new doctrine, but U
familiar to public Jurists. Domat Pub. l«w.
book 1, tit. 0, see. 1, par. 12, 14, IS; PuBTend.
de Jure Nat. et Gent, lib, B, cap. 6, sec. 7; IT
Vin. Abr. Prerog H. b. pi. 20; Chltty on Pre-
rog. 886; The Att'y-Gen. v. Burridge, 10 Priee,
3GD. The same doctrine has been racogniied
here, In the ease of political corporations. Th*
Preab. Church ». The City of Now York, S Cow.
63B; Coder v. Georgetown. 6 Wh. 603; Tbe
Auburn Academy v. Strong, 1 Hopk. eh. *78.
6. The grant of the charter of Warren
Bridge is no breach of any contract with tha
plaintiffB, they having originally accepted their
charter, subject to tbe paramount right of evl-
nent domain; and 'having, alao, in r*4SI
17BS. aceant*i< ita cxtenalon, with a dUiart
1KB CUAMtMM ttlVK BUDOE V. TlIK WaMXH BuMB Bt AI>
Kblicum wbi«li belong! to all men. Hale, de
rt. Mat. cap. 6; 10 Price, 460. One branch
«f thia jiu Dublieum Ji the right of way, to
be designated bj the LegialaturB. Thii is said
to be one of the principal things which ought
to amplo; the attention of government to pro-
mote th« public welfare and the interesta of
trade; ami that nothing ought to be neglected
to render them aafe And commodloui, Tattel,
bk. I, eh. 9. aee. 101, 103; Domat, bk. 1, tit. B,
Me. 1, 2. The power to do thU U ai much in-
berent and inulienable aa the right of tax-
ation; whkh, it 1» said, reiidee In the goTcm-
■Bent, and needs not be reaerved expreaaty, in
*ay grant of property or f ran chines, to in-
dividuate or corporations. The Providence
Bank T. Bininga, 4 Pet. 660, 501, 503. Ferries,
turnpikes, railroads, toll bridges and comtnon
nwda, are equally public wsys, differing only
in the msnner of their creation. Each aot of
location ii an exercise of aovereign power;
and th« eaaement thus acquired h paid for by
the people, either directly, from the public
cheat, or Indirectly, by tolls. But the laying
mt of a common road has never been suppoaed
to violate the charter of a neighboring turn-
pike, however it may impair Its tolls; nor has
the establishment of one kind of public road,
whether by chorter or otherwise, ever been con-
■idered as sn injury. In legal eoutemplation, to
another of a different kind. And If not to an-
other of a different kind, why should it be to
another of the same IcIndT If a turnpike may
be rendered useless by a railroad, or a common
highway, why not by another turnpike t
Beekman v. The Saratoga Railroad Co. 3 Paige,
4S; Irvin v. The Turnpike Co. 2 Penn R, 486;
Orven v. Biddle, 8 Wh. 86, 89. This court has
never gone so far as to hold the statute
preu contract. Vanhome v. Dorrance, 2 Dall.
320; Fletcher v. Peck, S Crench, 87; New
Jersey v. Wilson, T Crancfa, 164; Terrett v.
Taylor, 9 Craneh, 43; Dartmouth College v.
Woodward, 4 Wh. SIS; Green ». Biddle, 8 Wh.
1. On the eontrary, this court has refused to
Imply a contract, in a case similar In principle
to the present; and has declared that where
there Is no express contract, the remedy of the
party was in the wisdom and justice of the
Legislature. Jackson v. Lamphire, 3 Pet. 289;
The Prov. Bank v. Billings, 4 Pet. E«3; The
United Btates v. Arredondo, 6 Pet. 729.
4***1 *But this point stands not on general
reasoning alone. By stat. 33, Geo. ft. the
courts of sessions in Matsachuaetts were ex-
pressly authorlMd to establish ferries, in all
places, at their discretion. This Is a clear aa-
■ertion of the public right to make new ave-
ntiee, by water, wherever public oonvenience
may require; and the statute was In full force
ia 1786, when the plaintiffs received their
charter, and Is to be taken into the elements
of its exposition. It continued in force la
1702, when West Boston Bridge waa chartered;
and the same provision was revised and re-
enacted in 1797, and aontlnued In force in 1828,
when the charter of Warren Bridge was
DTanled. If_ tk« U waa lawful to «lah1Uh
eatablish any and every kind. If any doubts
could arise on this point, it Is made clear by
reference to the traasaotions of 1792. The
plaintiffs, at that time, remonstrated Maibiat
the grant of the charter of West fiestea
Bridge, on the ground of their CTclusivs rl^l;
Brst, aa parchasers of the ferry; and, second,
by their charter of 178S. The whole subjest
was referred to a committee of the LegUlatura,
before whom all parties were fully heard. The
great question was whether the Legislature had
a right, at Its discretion, to make new avsanes
over Charles River to Boston ; and whether the
plaintiffs' charter gave them any ejcclusive
privileges. The committee reported atroB^y
in favor of the right of the State, and BfaiHst
the existence of any exduaive right in Ue
plaintiffs; but reeommended an extension of
the term of continuance of the plaintiffs'
charter, on grounds of public expediency, aa a
mere gratuity; and it was done.
This extension of the charter, together with
this contemporaneous exposition, the pl^n-
tiffs accepted in the same year; and again In
1802, without protest or objection. It is abaurd
to suppose that the Legislature intended to
grant exclusive privileges, in the same breath
in which their existence was denied. The gen-
eral principle that the legislative history of
the passage of a statute furnishes no rule fw
its exposition, is admitted. But it applies only
to the expositioD of statutes as such. Prlvata
statutes, regarded as contracts, are to be ex-
pounded as contracts; in which all the re*
gestB, or surrounding circumstances, are to be
regarded. The report of the committee, there-
fore, was a cotemporary document between the
riame partiea, relating to the same subjeet mat-
ter; and in a ease tMtwees private persons, it
would be received; in equity, either to In-
terpret or reform the agreement. If the acts of
partiea expound their intentions, 'much [*470
more a solemn transaction tike this. Blankley
V. Wlnstanley, 3 T. R. 279; Gape v. Handley,
Id. 28S, note; Hunter «. Rice, IS Bast, lOOi
Seville v. Robertson, 4 T. B. 720; Cook T.
Booth, Cowp. 819, assert the same dootrina;
though its application to express covenaata baa
been denied. The charter, extended on these
principles, and coupled with such declarations,
was accepted by the plaintiffs la ISOS nncon-
ditlonally, and without objection. On the ap-
plication for Canal Bridge, in I80T, the plain-
tiffs again opposed the grant, and were again
heard; and Ute State again denied their axeln-
sive right, and asserted its own to open ave-
nues at its disoretion. And the plaintiffs again.
In 1826, in a more solemn manner, aeeepted
the renewed charter, without any dsnial of the
which anoihiiatea the plaintiffs' tolls, has
virtually resumed Its own grant. To this It Is
replied that the prinoiple which forbids the re-
sumption of one's own graat, does not apply to
the exerdse of the embiant domain, "rkus, a
tumnike road may be appro^lated to make a
canal. Rogers v. Bradshaw, 20 Jobas. 7SB. It
is further objected that though tbe original
outlays may have bean re-lmbunad, with inter-
est, from the tolls; yet that the Aet of lft»
470
BonuB Cocar or tsi Umm Stath.
■tockholden, who lutve mtd* tfaair inTcatmenti
■t ft bigh price. But all luch kk purchMera
with notice. The lUtute of 33 Gik>. II. vu
fair notice, beforehand, of the public right to
open new avenue*, over waters, at discretion.
Thii rigkt, in regard to bridgea over Charles
Slver, was itxpreasly asserted in I7B2; it was
acted upon in the aubaequent grant of the
MIddleaei Canal; It waa again expreaalj ai-
aerted In 1807, upon tlie granting of the
charter of the Canal Bridge; and waa mora
recently acted upon in the charter of the
Lowell Railroad.
7. If the plaintiff a have auitalned any dam-
ages not anticipated nor provided for, they
are merely consequential, for which no remedy
lies against theae defendanla; nor is it a caae
for the interference of this court; but It is only
a ground of application to the Commonwealth
of Massachusetts. That the defendants were
mere public agenta in the erection of Warren
Bridge, was conceded in the argument of this
cause, in 6 Pick. 3S3. And it is equally clear
that the remedy, at common law, for the dam-
ages of which the plaintiffs complain, if the act
of the defendants were un>stifable, must have
been by an action of the case, and not in tres-
171*] pass. For the gravamen is 'not that
their property has been directly invaded, but
that an act has been done in another place,
in consequence of which the income of that
Sroperty is reduced. Their damages, there-
ire, are strictly consequential. In regard to
euch damages, the conatitutiou of Massachu-
setts (art. 10) has already received an au-
thoritative fxpoaition, in Callender v. Marsh, 1
Pick. 418, deciding that to those damages it
does not apply. So In Pennsylvania, Shrunk v.
The Schuylkill Navigation Company, 14 Serg.
& Raw. 71, 83, and in New York, Varick v.
New York, 4 Johns. 63. Statutes enabling
agents to effect a great and beneficial public
object, ought to be benignly and liberally ex-
Kunded in favor of those agents. Jerome v.
<sa, 7 Johna. Ch. 328. And they, therefore,
are held not liable for any consequential dam-
ages, resulting from acts done under and with-
in the terms of a statute. Spring v. Russell,
T Oreenl. Z73; Custi* v. Lane, 3 Munf. 678;
Lindsay v. Charleston, 1 Bay. 252; Stevena v.
The Middlesex Canal, 12 Musa. 408; Rogers *.
Bradahaw, 20 Johns. 744, 746; The Governor,
etc.. Cast Plate Manuf. t. Meredith, 4 T. B.
7M; Sutton t. Clarke, 1 Harah. 429; 6 Taunt.
£0, B. P.; e Pick. 4H. It ia only when agants
eioeed the powers conferred on them by the act
that they become trespassers. Belknap v. Bel-
knap, 8 Johns. Ch. 463; Shand t. Henderson,
2 Dow'b p. C. 619. If the property is taken
for public use, the State is bound to make
compensation, and trespasa doea not lie. If It
is consequentially Impaired in value, by the
prosecution of public works, it is damnum
abaque injuria, at taw; and addreaaes itself
only to the consideratioTi of the Legislature.
If here is no violation of contract, the ques-
tion whether a State law violates a State con-
stitution, is not to be raised In this court.
Jackson t. I^mphire, 3 Pet. 289. There are
caaa* in which it boa been gratiiitously thrown
out that the eoastitntioQaJ right to trial by
jury oxtands to cases of property taken for
pttblla BMa. Pvrige T. WUson, 7 Maas. SMt
Callender v. Uarah, 1 Pi^ 418} Tanbons v.
Oorranee, 2 Dall. 304. But each of thcaa eases
stood on other grounds, and in neither of tboa
was this the point necessarily in judgment. Id
other cases, it has been held that this conatitn-
tionai* right appllea only to issues of fact, in
the ordinary a::rr3 of civil and criminal pro-
ceedings. Livingston r. New York, 8 Wead.
86; Beekman v. The Saratoga and Schenectady
Rail Road Company, 3 Paige, 46. No State hM
gone so far as to hold, that the money murt
be paid before the title of the owner is da-
reated. On the contrary, in 'Massachu- [*4II i
setts, in the location of roads, the title of tbe '
owner is devested as soon aa the return ia
accepted; though the amount of compensation ,
may be litigated for years. In Kentucky, in
certain cases, a private bond ia held aufBcient
to effect a similar purpose, Jackson v. Winn, 4
Littel, 327, and in Pennsylvania it ia effected
by the mere giving of a right of action; wheth-
er againat the State, Evans v. The Common-
wealth. 2 Serg. &, Raw. 441; The Common-
wealth V. Sheppard, 3 Penn. 609, or a^aat a
private corporation, Bertach v. The L«high Goal
and Navigation Company, 4 Raw. 130. Now.
the faith of the State, pledged expreselj in its
constitution, ia at least aa valuable aa any
right of action, whether against an individual
of the State itself, and ougtit to be equally ef-
fectual to devest the title of the owner.
The general principle of public law is that
any private property may t>e taken for public
use, or may be destroyed, or private rights
sacrificed, whenever the public good requires it-
Thia eminent domain extends over all the ac-
quisitions of the citiien, and even to hia con-
tracts and rights of action. Grotius de Jure
Belli, ete. I. 2, ch. 14, sea. 7; and I. 3, ch. 1>,
sec. 7, 14, 16, and eh. 20, see. 7: Vattsl, bk. 1,
ch. 20, sec. 244; Puffend. de Jure Nat. etc, L
8, ch. 6, see. 7; Bynkersboek, Quest. 1. 8, ch. IS,
par. 2, 3. 6, 10; 3 Dall. 245.
All theae writers agree that compensation
ought to be made, but no one has intimated
that the- taking is not lawful, unless the com-
pensation is simultaneously and especially
made or provided for. On the contrary, thej'
all auppose that the property ia firat taken, and
afCerwarda paid for, when, and as soon aa tha
public convenience will permit; and thia, with-
out re^d to the urgency of the causs for
which it was taken, nor whether in war u(
peace. It is obvious that in a large proportion
of the public exigencies, the compensation must
necessarily be provided for after the property
is taken. The Commonwealth v. Fiaher, I
Penn. 406. Our constitutional provisions on
this subject seems nothing more than aa ex-
press recognitisn of the right to compensation;
and were probably inserted in consequence of
the arbitLxry impressments of propcrtj
made during the war of the Revolution. 1
Tucker'a Bl. Com. part 1, app. 306. The pas-
sage in 1 Bl. Com. 13S, 138, amounta only to
thiai that the Legislature obliges the party
to sell, and fixes the price. 4 T. R. 797. But
the Constitution appUea to property directly
taken, and not to eases where its value ia only
consequentially impaired; and so it has been
expounded by MasFachusetts, ia her general
road laws, and in all her charters 'for [*411
public ways, whether bridgea, roads, or eaoalt
P«ccn il>
1S»
Tai CuAKLi* Rtvb Hsiuce t. Tuk WaIbbh fiuDok n Ai.
TIm residue of ths lubjcet of euiiiwiit domain
not having been loucbed bj the ConitilutioDt
remains among llie great prinuiplcs of public
law, having an imperative force on the Iiodot
and eonscieDce of the soTen^tgii; and tbe ob-
jection is Dot to be tolerated in a court ol taw
tlwt a tovefrign State, in tbe exercise of this
power, will not, do wliat juatice and equity may
require. Tippets t. Waflier, 4 Mass. 597) Tlie
Conmionncaith v. Andre, 3 Pick. 224i 1 Dall.
44B.
II MaasBchuEettB has talcen the property of
the plaintilVs for public use, her bonor ii aol-
etiinlj> pluigi'd in her cons I it ul ion to make ade-
quate (.uiiifieni^fli ion. If their rights have been
•acrifl<'('d for bi^h«r public good, the laws of
nations rquiilly bind her to restitution. From
thi>PC obligBtions she could not seek to escape,
without forfeiting her zaste, in this greut
family of nations. Her conduct in this niattei
bal been uiiiftirmly dignified and just. Hil'
piainlitTs have never yet met bar, except in
the attitude of itera and vnoompromisiiig de-
fiance. She will listen with great respect, to
tlic opinion and adviL-e of this honorable court;
and if hur sovereign rights were to be sub-
mitted to arbitration, t^ere ia doubtless do
tribunal to whose hands she would more
r«odily confide them. If she haa violated any
contract with the plaiutlfTa, let them have
ample reparation by a decree. But if not, and
they are merely sulferers by the ordinary vicis-
aitud-'S of human alTHin, or by the le^'itimate
exertiae of her eminent domain, lot it be pre-
sumed here that a sovereign State i» capable
«f a just regard to ita own honor, and that it
will pursue, towards its own citlaenii, an en-
lightened and libera] policy.
Let it not be said that, in the Aaierlcan tri-
bunals, the presumption and intendment of
law is that a State will not redeem its pledges
any further than it is compelled by judicial
coercion: that it Is Incapable of discerning its
true interests, or of feeling the force of purely
equitable considerations; and that its most
•olemn engaf^cments are wortli little more than
the pardiment oD which they are written. Let
such a principle be announced from this place,
and it is ea.«y to foresee its demoralizing eflects
on our own community. But proclaim it to
Europe, and we hIibII hear its reverberations,
in tones louder than the thundering echoes of
this eapitol, with the bitter taunt that, while
the unit monarch of the old world la the digni-
fied representative of national honor, the mon-
arch •multitude of the new ia but tbe very lu-
caroation of perfidy.
4 74*] 'Mr. Dam, also of oounsel for the de-
fendants.
I approach this case with unalT^M^ted diffi-
dence and distrust of my capacity to aid my
employers or enlighten the court. It baa been
long pending; has excited great Interest; has
drawn to Ita investigation the intellect and
learning of many distinguished men and emi-
nent Jurists. The whole ground haa been ao
thoroURhly c.Tplored, that little la left un-
touched which ia worthy of examination, or can
eicite curiosity. If others had not exhausted
the subject, my worthy and learued aasocinte
has brought such untiring Industry into the
ease, that nothing remains to dm but a method
f I., eil. fil
of my own, lesa perfect than hia, and a mwe
revision of tbe subject under that arrangement.
Both parties are curporatians.
Both oreated by the State Legislature.
Both claim rights across a navigable liver.
Both, thorcfore, claim aometUing from the
umJTUint domain of the State.
The plaJntifi's claim to be first In time, and
for that reason to override the defendanta'
lille. They assert an excluaive right over the
river, which greatly aSecta the public as well
as the defendants.
The question to be decided Is, therefore, one
of grave moment; because it involves great in-
terests and rights in Alassuchusetts, and possi-
bly, principles which may affect tbe prosperity
and convenience of other densely populate
a om muni lies, f
Till! value of property on the part of the
phiintiHa has been stated here to be five hun-
dred thousand dollars. Their bridge, costing
originally about forty-eix thousand dollars, hjks
grown into this importance from tbe large an-
nual income, having yielded to the proprietors,
as tbe plaintilTs slate, over twelve hundred
thousand dollars, and advanced from one hun-
dred pounds a share, to two thousand dotlara-
The question in one form is, has the Com-
monwealth ao parted with ita aovereign right
over thia river, and vested it in the ptaintiUs,
that the^ shall continue these exactions, and
the public tte without further accommodation,
whatever may be the inconveniences, until their
charter Bxpirea; and forever after, if the plain-
tiffs have the right to the ferry, as they con-
tend; for upon their view of the case, the ferry
will revert to tbe college, and tbe tolla be con-
tinued after the charter of the bridge oompany
If tbe people of the Commonwealth have
thus parted with their •sovereign rights [•475
to corporators, and are thus tied down, so that
new ways cannot be opened for their accom-
modation, it is matter of profound regret.
The learned counsel for the plaintiffs, in
opening the case, seemed studioua to have it
understood by the court that the actual parties
in interest are the plaintiffs and the Common-
wealth, and 1 have no objection to this view of
the case; for the public interest, I agree, far
transcends in importance the pro^rty involved.
The public, therefore, may be said to stand on
one side, and the plaintiffs on the other.
On one aide, then, are the rights to private
property, aaered and inviolable, as far as they
can be eatablished; but claimed in the form of
a burdensome tax on the public, and therefore
entitled to no favor beyond strict right.
On the other stands the public, complaining
that they are the tributaries to this great stock
of private wealth, and subjected to inconven-
iences still more burdensome from the want of
suitable accommodations for inlerconimunica-
tion across the river, if this bridge is to be
shut up; and denying that auch claims of ex-
clusive right can be justly or lawfully set up
by the plaintiffs.
This publif, in the argument, haa been rep-
resented as devoid of natural justice, selflsn,
avaricious, tyrannical.
Some things are certain in this conflict of
opinion.
We all know that the sole oontrol and power i
7»& I
Bmaaa Cmiwi or ibe UniBt Sutb,
dcrMted of itT
If it has gune out of tlie public snd is in tha
plaintiffa, thej nuat ihow to what citent, and
■faow It cloarlj: for such rights, ai 1 *hall
prove, do not puis hj presuniDtioB, but upon
aorne decided expression of public auent.
The loBB of tolti, which baa been cameatl;
dwelt upon, baa no tendency to prove it.
The i^at increased valne of tn« bridge, baa
no tendency to prove it.
The severe hardahip, which has been a prom-
inent feature oF the argument, doM not prove it.
All these matters are bj no meajis Ineonaiat-
ent with the right to establish other waya
across ths river, and therefore only prove that
the plaintilTs are making less mOBej, W>t that
their rights are invaded.
47e<] n will then eiatnine their allegations
in the bill, and the arguments by which they
claim to establish their conclusions.
1. They set up an exclusive right to the trav-
el between Boston and Charleatown, come from
where it may.
2. They aver that the Act of 1828, under
which the defendants claim, ia incompatible
with, and repugnant to their vested rights, and
doth impair thfa obligations of contract, and is
therefore void by the Constitution of the Unit-
ed States.
3. They aver that the Legislature is re-
strained from revoking or annulling its own
grant, or deveating title, except where ft takes
property for public use; and then it can only
do it under the proviaiona of the bill of rights
of the Commonwealth, which requtrea that com-
fensation shall be made in such oases; and
liey further aver that their property is takes,
uid no provision for compensation Is made, and
therefore the Act of 1S28 ia void.
The case has been chiefly argued under the
aecond end third heads.
The first raises a question under the Consti-
tution of the United States. That instrument
provides in the fifth amended article that do
State shall pass a law Impairing tba obligation
of contracts.
The plaintiffs call the Act of 17SS, under
which they claim, a contract, and argue that
the Act of 1828 Impairs their grant, and as it
is done by legislation of the State, the Act of
1628 is void.
The second raisea a (question under the 10th
article of the bill of rights of Hassaehueetts
— a question very proper for the courts of
Massachusetts — but aa I shall contend, not
brought here by this writ of error; but finally
settled there, and beyond the reach of this ju-
riadietloD, at the bill of righta does not, and
cannot, constitute any part of the Act of 1T86,
and therefore Is no part of the supposed con-
tract.
These two Issues do not entirety harmonize
pUintilfs, because the State cannot, even in the
exercise of Its eminent domain, devest this
right of property.
The other admits the right to take for public
use, by making compensBtlon.
I shall examine both, and the arguments
ttrged in support of them.
To make out these iasueo, they contend.
In and to the ferry
Chariest own.
*2. That the State onthoriied the [*4TT
erection of their bridge, by the Act of W; in
which there i* an implied covenant Dot to di'
vert the travel, by new ways.
3. That these two titles vest in them a con-
trol over Charles River, to exclude injuriona
authoritca the interference must provide com-
pensation for all loaa occaoioned by the diver*
sion of travel.
In examining these positions, I shall
1. Deny that they are the grantees of tlw
college, or have any interest in the ferry.
2. 1 shall deny that they have any covenant
or engagement, expree* or Implied, by the Act
of ITSS, authorizing them to claim damage*
for a diversion of travel by a new and author-
ized way; and shall also attempt to prove that
no legislative body can perpetually alienate its
sovereignty in regard to making ways for the
public convenience; so that a new way may not
at any time, when the public exigency demands
it, be laid over any property whatever, whether
belonging to individuals, or to corporations
OTeated by legislative acts, and whether it be
real estate or a franchise, unless the State ha*
agreed, in express terms, to exempt such prop-
3. I shall maintain th«t the power to provide
ways for the public, resides, of necessity, al-
ways in the Commonweallh: is part of the sov-
ereignty; and all property is held subject to the
exercise of that right, which is a condition an-
nexed to all title to property, whether de-
rived from the State or from individuals.
t. I shall maintain that taking property In
pursuance of this sovereign right, is not, in it-
self, an act impairing the obligation of con-
tracts, but consistent with It; for the prop-
erty is held subject to this right, and all the
party can demand, ia eompensation under the
bill of rights.
S. I shall maintain that this court has no ju-
risdiction over the qusatlon of compensatuMi
for property taken for a way, unless the party
can show that he holds it under the State, and
the State has expressly agreed not to take it
for that purpose, without providing compensa-
tion; for in all other cases the party relies on
our bill of rights, and this court is not the
tribunal to expound that instrument.
In maintaining these poeitions, I am eon-
strained to examine most of the grounds as-
sumed in the very elaborate argument of the
opening counsel; though I have a convktion
which I cannot surrender 'that all this [*4I8
labor upon the ferry will be a useless effort, for
r succeed ii
establishing
lowing, however, the order deaigutted, I will
first look to this ferry, and inquire,
1. What rights belonged to the ferry?
£. Are these rights vested In the plaintiffsT
9. If they are, do they tend to establish the
claim now tet up over the waters of the riverT
This ferry lies in grant, and we must go to
the ancient colonial ordinances to ascertain its
extent and the probable meaning and intent of
the colonial govamment, which ia to be gath-
ered from them.
im
Th« Cbauks Rnn Sudo* *. Thk WAutn Bbisob r u.
«T8
They are as follows:
Ordcn rel&tiiu to Chmrleitoini farry, «-
trkcted out of Uie old book in the council
ilumber, Ann. 1030. It is further ordered
tliat whosoever ahftll flnt give tn hii name to
Mr. QoTcrnor, that he will undertake to let up
» ferry between Boston and Charleatown, and
■ball begin the same at sueh time as Mr. Oov-
amor shall appoint, shall have one penny for
akch person, and one penny for every hundred
weight of goods he shall so transport. Page "
1S3I, Edward Courerse hath undertaken to
•et up a ferry betwixt Boaton and Charleatown,
for which he is to have two pence (or every
alngte person, and one penny apiece. If there
btt two or more. Page 80.
1633. Mr. Rlehard Brown li allowed by the
eotirt to keep a ferry over Charles River
■gainst his house, and is to have two pence for
«T«7 single person he so transports, and one
penny apieea if there two or more. Page 106,
163S. It is ordered that there ahRll be a ferry
Mt up on Boston side, by Windmill Hill, '
transport men to Charlestown and Winnesir
npon the aomc rates that the ferrymen at
Charlestown and Winneeimet transport men to
Boston. Page ISO.
1837. The ferry between Boston and Charles-
town is referred to the governor and treasurer,
to let, at forty pounds per annum, beginning
the flvst of the tenth month, and from thence
Cor three years. Page 204.
163S. Edward Converse appearing, was ad-
monisted to be more careful of the ferry, and
enjoined to man two boats, one to be on the
one aide, and the other on the other aide, ex-
eept the wind were so high that they were
farced to put four men to man one boat, and
4 7B*] 'then one boat to serve, only he is en-
joined la pay Mr. Rawson's fine, and so ia dis-
eliarged. Page £23.
1640. Mr. Treasurer, Mr. Samuel Shepherd,
and Lieut. Sprague, have power to let the ferry
between Boston and Charlestown, to whom
they see cause, when the time of Sdward Con-
Tvrae la axplred, at their discretion. Page 276.
1640. The fcnj between Boaton and Charlea-
ttiwn [• granted to the college. Page 28S.
Bach are the principal acts or ordinance* of
the Court of Aastatanee, and the General Court,
in regard to this ferry; and I shall ask the
eourt to gather the Intent of tiiese public func-
tionaries from thia record, and ine contem-
poraneous history.
In 1630, the colony, under the distinguished,
and I may aaj. Illustrious John Winthrop,
GoTcmor, came over; and not being satisfled
with Salem, where their predecessors had lo-
eat«d, they came up to the bead of the bay, or
to what is now the harbor of Boston. Here
tbty found the peninsula of CharlestoHm,
formed by Charles River on the weat and aouth-
waat, and UysUo River on the northeast, pro-
1«eting into the harbor from the northwest to
tfcs southeast; and the peninsula of Boston
projecting towards it from the southwest to the
Dortbeaat, and formed by Charles River on the
north and west; which apreads above the point
Into a large basin, discharging Itself between
these peninsulas and the bay or harbor of Bos-
toa, on the other side. Winthrop, with his
frl<mda, oenipied tbeas two psainsnlas: and in
Boaton, was eetablished under him, the oolonlal
government of the company, which, in truth,
was only a company of adventurers in trade
and speculation, so far as the charter went.
Out of this humble beginning has sprung the
Commonwealth, and, I might almost say, this
federal government itself.
Thus situated, intercommunication between
these two places was indispensable; and hence
it ia that, while the smokes of only a few log
cabins ascended from the spot where a great
cit^ and a large town have since risen up, the
subject of a ferry came thus early under con-
sideration. And in giving oonstruction to these
simple ordinances, it is a fair ini^uiry whether
the colonists were providing for present emer-
gencies, means suitably adapted to that end; or
were, as the plaintifTa contended, making a
perpetual exclusive grant of the right of travel
over Charles River for all time to come.
The first Act, In 1630, makes no grant to any
one, but proposes to have a ferry "set up."
*In 1631, a ferry was set up hv Ed- ['^eo
ward Converse, and the toll establiEhed.
In 1633, Richard Brown is allowed to keep
a terry over Charles River, againat his house,
etc. Here is the first evidence of a speciBc
location, "over the river against his house;"
that is, what they call a Jerry, was over or
across the river, from bank to bank, opposite
to Brown's house; a way merely.
1G3S, a ferry was set up from Windmill
Hill, in Boston, to Chelsea; and another from
Boston to Charlestown, to run on the same line
or way as the one already set up, only it was to
belong to Boston instead of Charlestown. Thus,
one feriy was granted upon another; if these
ordinances are to he treated as perpetual grants,
and if the word "ferry" carries a franchise, then
one franchise upon another. They show rather
what is intended by the words "set up," and
that they simply authoriied the running of a
boat from place to olace. In the first act, any
person viving in his name, was to set up a
ferry; Converse did set it up. The thing set
up, then, was not by public act, hut by indi-
vidual acL This ahowa the limited sense in
which the word "ferry" ia used. After the
location, in 1833, it Is called the ferry.
In 1637 the ferry is referred to the governot
id treasurer to let. Mr. Savaee testifies that
he had seen the original, or what be betlevsd
to be such, of a memorandum of agreement, or
lease. In this year, signed by Converse, which
begins tbusi rThe governor and treasurer, hv
order of the General Court, did demise to Ed-
ward Converse, the ferry between Boston aad
Charlestown. to have the sole transporting ol
passengers and cattle from one side to the
other, for three years," etc. Now, the demise
of "the feri7 between Boston and Charlea-
town," but he u to have the sole transporting.
The term "teriy," as then understood
this instrnment is in the handwriting of
the governor), did not carry any sole or exclu-
sive right to travel and transportation; but it
vras necessary to insert other strong and express
terms to convey that right. This is another
proof that the word had not the enlarged stg-
iflcation now given to it.
In 1640 the treasurer, Mr. Bprague and Ur.
Shepherd, wen authorized to let the terry.
Thus far thera had beea but two kinds of action
TtS
SuPBEiH CouBT o» THi UNmo Statu.
Ml tha part of the colony. Fint to BttdUiBb a
ferry, and second to tease and regulate it. Th^re
were plainly no privilege* or ex elusive rights
appended to it, but they speak of it as a thing
to b« "set up" by another; and when teaaei^
481*] they gave for a limited 'period, certain
well defined privilege! to go nith it; but those
privileges were not embraced in whnt waa
called the ferry, but stood separate and dis-
tinct from it, and were at an end with the
leue.
In the lune year, 1S40, the record says,
"The ferry between Boston and Charles town
U granted to the college."
This U the charter, the whole title of the
college. What by fair construction ia granted!
The feny — nothing more — the thing set up.
No privileges iuch as are specifically enumer-
ated in the lease of Converse — no line of travel,
•uch as is now claimed — no covenant not to
divert travel, or not to establish other ways, or
not to Impair the income. There is nothing
which loolu at such privileges. It U a ferry —
k naked ferry. What is a ferry I All the books,
Tomlin, Dane, Woolrych, Petersdorf, etc., de-
flna it to be a highway, and the word, ez vi
termini, means no more. The term "ferry,"
therefore, in and of itself, implies no special
iirivileges, sueh as are often connected with a
erry by special grant or prescription. The
colonists so understaood it; and in making a
eluritable gratuity to the college, had no pur-
pose of placing the control of the ferry, or the
waters of the river beyond their reach. The
income, they doubtless meant, should go to the
eoll^e; but they actually retained the posses-
lion and management till 1650, and always de-
termined the rate of tolls, and how the public
should be accommodated.
The doctrine of ferries, as found in the Eng-
lish books, and applied to this case, is full of
confusion and uncertainty ; so much so, that
the plaintifl's have, under it, varied and remod-
elled their claims of right, reducing them from
the whole river, to the travel between Boston
and Charlestownj and before I have done, I
■hall ask them again, what is tbfe extent of
their claim, and where the authority which de-
fine* that extent. Let us took at the cases, and
tee how the doctrine stands.
1. The old class of cases, in which la found
the doctrine that "you cannot impair my tran-
ehiae, or my ferry," and "I may exclude all
injurious competition," and which has been
many times repeated in the argument, with
great apparent approbation, asserts rights
which I will show cannot be maintained in
England, or anywhere, at this day. The mon-
oply ia too bold for even a government of privi-
leges. There was, therefore, a necessity for
narrowing down a doctrine so repugnant to all
improvement, and so inconvenient to all who
bad occasion to travel. The principle was, if
one owning an old ferry could show that a new
488'J ferry, or way, however, 'remotely, di-
verted travel, or caused a diminution of tolls
ma action would lie, and the new ferry or way
was held a nuisance.
This gave rise to the doctrine set up in Yard
». Ford 2 Raund. Blissett v. Hart. Willes
R. and In the case of Sir Oliver Butter, 3
Ler. Here the distinction was taken, and ap-
pear* aiaee to have tieen adhered to, that one
setting up a ferrr, without liccone from tlw
king, trould he liable for any injury happening
to an old ferry thereby; whereas, if he bad flrN
obtained a license, he would not have been lia-
ble. Those who acted under a lici'nac, wen
placed on a different footing from those who
acted without, although the license was pro-
cured without paying any compensation to ttie
old terry. A careful analysis of these cases will
produce this result The conclusion then is, that
under a license, granted after an ad quod dain-
mu[n, a terry may be continued, though injn-
rioun, so far as to entitle the owner of an old
fuiiy maintained this conclusion. The ad quod
damnum, which gives of course, no damage,
has been manifestly used to evade the rigorous
old rule, and to narrow down the franchises of
terries, markets, etc., under a return upon such
writs, that new ferries, or new markets may
be granted, because the public need them, and
the old ones will not l>e greatly injured thereby.
The report in Butler's case, alleges that the
sew market was granted because the public
convenience demanded it. It is, I agree, absurd
to return no damage, when there is damage.
But if this be not so, why is a license a pro-
tection; for it a ferry is where it docs no
injury, then it needs no protection. The idea
of protection, therefore, necessarily implies
that without the license, the party would be
liable, because he does injury. The process of
ad quod damnum and license. Is therefore used
as a shield against the liability, and to cut
down this kind of franchise.
Next came the doctrine In Tripp t. Franlc,
4 T. R. which struck more effectually at the
doctrine of the old ferry francliisea, and
brought them into comparatively circumacribed
The plaintiff, claiming alt the travel trom
Kingston to Barton, on the Humber, sued the
defeudant for transporting persons from Kings-
ton to Barrow, some distance below Barton,
on the same side of the river. The travel from
Kingston to Barrow, had usually passed tlirough
Barton, and therefore went by the plaintiff's
ferry. He prescribed and established his right
to alt the travel between Kin^^ton and Bar-
ton, and maint«ined that under the old authori-
ties, "which forbid the right to set up t'48>
injurious competition, or to impair the ferry of
another, he was entitled to damage; for it the
defendant had not transported paasengeri di-
rectly to Barrow, they would have passed over
to Barton in the plaintiff's boats, and therefore
he lost bis toll. His line of travel, as it is here
called, was broken, and a part of it divertpd.
But the court nonsuited the plaintiff, on the
ground that he had only an exclusive right be-
tween Kingston and Barton. They disregarded
the circumstance that his accustomed travel
was lessened, and his tolls diminished. This,
therefore, was an unequivocal inroad upon the
doctrine that one shall not set up injuriou*
competition a^inst another, or impair hi*
ferry J for it is undeniable that the toll w»»
diminished, and the value of the terry lesseoed.
The franchise which formerly reached all inji>>
riouB competition, was here limited to an ex-
isn
Tbk Chabui Bivbb Budgx *. Tus Wauch Bbidob bt al
modi ficat inn ol the old doctrine; and vAi lO
coniiderrd in a lat« ease in tba Court of Ek-
chcqaer by B»roo Parke.
The next ciae of importance, for I pass over
many where the learning of the courta has been
Silt in rcquiiition, is a late case ia tbe Court of
xchequer, reported in an EngliRh periodipal
called tlie Law Journal, and tntroduoed to the
notice of the court by the pUintifTs counsel.
Here npain the learned barons took time to ad-
vise and consider what the law relating to fer-
ries wai. After a fresh research, it is declared
that the franchise Gonsista in an exclusive right
between place and place, town and town, Tille
and Tille 1 and the competition must be brought
to bear on these points, or it is lawful. Hence
the defendant was justified in landinfr a per-
son at Holibs' Point, a place intermediate be-
tween Nay land and Pembroke, thou);h near
the latter place, and (he paisnirrer was goin^
lo Pembroke. This w:t3 no infringement of
Claintilf's ferry between Nayland and Pem-
roke. This is the case, as I remember it from
a hasty perusal.
What are we to gather from itT Would a
ferry from London to Soutliwark across the
Thames, be from place to place, town to town,
or ville to ville. so that the vast population on
each bunk could have no other accommodation T
What connpction have the arbitrary lines of
towns, or citips. or parishes, with the public
travel, or the public accommodation T From
one county to another, in most of the United
State*, is from place to place; for there are
the BDiallest political organised communities
in many States. Two counties may stretch up
484*] 'and down a river upon opposite banks
many miles; and is any ferry to hnve an ex-
clusive franchise the whole of the distance, be-
cause the two places stretch ao far! This, and
all the authorities cited, arc only so many
proofs of a constant struggle on the part of the
courts to ascertain what the franchise of a
ferry is in law; and to bring it down to more
limited dimensions than the old cases assigned
to it
Am I not justilied, then. In declaring, that
the doctrine is manifestly confused and vr "
lating; and that the courts, without n
seeming ceremony, have modilled the law to
suit the temper of the times, and to appease
the just complaints of the public.
But it the taw is lo undergo chan;^, T prefer
it should be in our own courts, K;vi adapted to
our condition. Let it be done here, instead of
in King's Bench, or the Exchequer.
This, however, is not the course to pursue.
for it furnishes no safe and sound principle to
rest npon.
It seems to me, if we analyi^e prescription,
on which all these Kngliih rights rest — for all
the easel of ferries will be found to lie in pre-
scription— we shall find a ground of interpre-
tation of right which will be satisfactory, and
show that these cases have no tendency to es-
tablish the doctrine son tended for by the
plain tiffs.
They cite them to prove that a ferry has, oa
appurtenant to it, a franchise which excludes
injurious competition from the waters above
and below it. I have already shown that the
term "feri?" has no such extended signiflca-
tion; and I vUl now stunr that tbeoe owe* 4o
furnish nothing to aid this notion of construe*
tivB and implied rights; but every ferry is lim-
ited strictly to what is granted without the aid
of implication.
Prescription and grants in writing differ only
in the mode of proof. The wrltine proves lU
own contents, and the extent of the grant is
gathered from the terms employed lo eiprcM
the n
an.ng.
Prescription la allowed to take the place of
a writing supposed to be lost. Equity permits
the party to produce evidence to prove what
he has claimed, what he has enjoyed, and how
long; and if the period of enjoyment be suOl-
cicnt, the law presumes that he had a writing
which has been lost, that would by Its eon-
tents, prove a grant eo-eitensive with the
proof. In the case of Tripp v. Frank, for ex-
ample, the plaintiff proved that he had an
exclusive right to transport all travelers pass-
ing between ivingston and Barton. The law
therefore presumed that if his written tills
could have been produced 'in court, it ['485
would, in BO many words, have given him such
an exclusive right.
Cases of prescription, therefore, afford, no
countenance to Implied or constructive rights;
but stand on precisely the same footing as titles
which lie in writing. Usage can never enlarge
or diminish title, for one is not obliged to exer-
cise all his rights to preserve them, nor does
usurpation in theory enlarge right. The usage
only goes to show what the law supposes to
have been written.
Before, then, the plaintiffs can use these
cases of prescription to establish implied fran-
chises, they must show that the lost title is not
to be held to be commensurate with the proof;
but something is implied beyond what is sup-
posed to be written. This they will find it dif-
ficult to accomplish.
It follows from this, if I am correct In the
reasoning adopted, that ferries, eo nomine, have
no particular privileges belonging to them.
They are what authors define them to be,
water- high ways; and each franchise is more or
less extensive, according lo the terms of the
grant creating It. It may be very limited or
very broad.
The confusion in the English cases, does not
arise from any uncertaity in this principle,
Ijut from the uncertainty of proof, where the
right lies in prescription.
With these explanations, which, I fear, have
been unnecessarily minute, I come to the In-
?uiry: What was granted to the college! And
answer, the ferry: the ounte thing set up in
1081 by Converse; the ivay uvcr the river,
against the house of Brown, established in
1633 ; a road from hank to hank, for this is all
a ferry over the river means. It was an accom-
modation adapted to a few inhabitants in the
wilderness.
If the franchise was broader, where does it
extend to! The terms if the grant indicate no
privileg'^' up or down stream. Will the plain-
tiffs tell us where their bounds are? Do they
know? Ts there any rule of implication which
ase '"lis Ihcm nny privileges which they can
delinrT If ihrre is, tlien I call on then to put
down the boundaries; to show the court the
limit*. It la not enough to show that the terns
7111
Surasm Doubt or ths Um^ States.
•f the gnnt. If literally »nd itTJctly
■i»7, nnder poaiible circumstancea, r«ad«r their
property of little or no value. This only prove*
they nay have made a bad contract, but has
no tendency to establish in them undeSned
and unmeasured rights.
48S*] 'Let It be remembered that the
plaintilTs in 1762 remonstrated against the
grant of West Boston Bridge, alleging that it
would divert half their tolls; and the opening
•ounsel said they got compensation for the
erection of this bridge, which was from Cam-
bridgeport to Boston. Again, they remon-
strated a^inst Canal Bridge, alleging It Inter
fered nith thsir franchise, and this run from
Lech me re's Point to Boston.
Now, they say their franchise does not reach
either of tliPFie bridges, but Is limited to Boston
and Cbark'stown, and the case of Ruizy v.
Field is quoted to susUin it This is cer-
tainly proof, very conclusive, that the law has
been so uncertain that the plaintifTs have not
been able to show the extent of their own
rights, as they understand them, or to make
uniform claims.
Understanding the old cases as I have repre-
sented them, they asserted the right to arrest
ail injurious competition; and as the English
courts have cut down the privilege of franchise,
from time to time, so their claims have dimin-
ished till they lie between Boston and Charles-
town alone.
But it is said the franchise must be reason-
able; nud what is reasonable? They deemed
it reasonable to assert an exclusive privilege,
and to deny the riglit to open any new ways
over the tide-water of Charles Biver which
might divert any travel which would otherwise
reach them. Opposition to all new bridges has
been deemed reasonable. But why is any en-
largement of the grant reasonable! What you
give to the ferry you take from the public, and
the public cannot spare it without inconven-
In a word, is it reasonable or right to tra-
rerse the regions of conjecture in this matter!
To make laws which shall assign boundaries to
this franchise, when the plaintiffs can show no
manner of title to what they set upt
They urge that Warren Bridge Is a clear in-
terference, because it takes away their tolls.
80 is West Boston and Canal bridges, for the
same reason ; for the travel would go over the
plaint iiTs' bridge if these competitors were
away. The proof is no more decisive in the
Warren, than in the other bridges. The diver-
sion of travel is not evidence of wrong. The
English cases cited clearly show that. See
Tripp V. Frank. The wrong, if any, consists
in invading the plaintiffs' grant. And I again
ask them, if they adirm, as they do, that we
are on it, to point out its bounds. Show us
some certain evidence that we are trespassers,
497'] You once contended that West 'Boston
bridge would he a nuisance, because it would,
as it did, take half your travel. Y-iu urged the
same argument against Canal Bridge, which
bad the same effect; but you now admit them
both to be lawful, because they are not on your
franchise. This admission not only proves
that you are uninformed as to the rights you
claim, but that a great portion of your accus-
tomed travel may be lawfully diverted. I
tberafon again repeat that the diveraioQ of
travel i«, of Itwif, no vrtdenee of a tmpass M
your righta. Tou must, therefore, prodno
some other proof that your franchise reacIiM
our bridge, Uian the loss of tells.
You do not show tt by the terms of the grant,
nor by any establish^ rule of eonstruetion,
which authorize* such an implied right. It Is
not the business of courte te make or alter enn-
tracts, but to Interpret them. Is there any-
thing in the worda, "the ferry between Boston
and Charleston is granted to the college," wbieh
looks like granting an exclusive control over
Charles River, or any part or portion of it, ex-
cept the way or line of that ferry?
I shall hereafter adduce conclusive proof
to show that in England, contracts of this
character are rigidly construed ta favor of the
public, and against corporators. No counte-
nance Is given to implication, beyond what is
made manifest by the clearest and moat explicit
terms. The Stourbridge Canal Co. v. Whnley,
2 Bam. t AdoL T92.
The franchise of the ferry, then, which has
been interposed against all improvementt
across Charles River, when brought to the
scrutiny of taw, will be found to be a veiy
limited right, confined to the path of the boats
across the river.
This reasoning Is strongly corroborated by
the condition of the colony at the time of the
eatebliahment of the ferry, a* 1 have already
suggested.
As a further proof of public sentiment, the
eolonisto, in 1041, almost simulteneously with
the grant to tbe college, and before it took ef-
fect (for ths college was not incorporated till
1G50), passed an act prohibiting all monopolies,
except for inventions.
The great and wise policy of Maasachusctta,
in respect to free highways, was established in
1630; and with modifications, has been cuntin-
ued to this time. Ann. Ch. 126, ZBT ; L. of
M. 179, ch. 67. Under these acts, a power
to oonstruct free ways has at all times been ex-
ercised so largely that Mnssachusette on-es to it
the best roads that can be found in any State
In the Union ; and they have, at all time*,
'been established, regardless of turn- [*4II
pikes, bridges, canals, railways or any other im-
provemonts. The consequence has been, as is
well known, that many of the turnpikes have
been abandoned to tbe public
Such baa been the action of poblic senti-
ment, and such ite results; and this is the first
instance In which the right to establish new
ways has been questioned.
All these considerations lead to one conclu-
sion, which is, that neither the language ot tbe
grant, nor the great current of public opinion,
give an^ countenance to the claims set up by
tbe plaintiffs, founded on this ferry, for a>
exclusive franchise extending up and down the
The late lamented and distinj^ished Chiel
Justice of Massachusetts, in his opinion (in the
7th Pick.) In this case, expresses his convie-
tiona strongly on this point, that the ordinance
did not give an exclusive right between tbe
two towns to the ferry, and in construing it,
that the contemporaneous history ought to b*
considered, as it tend* to explain the probkbl*
intent of the colony.
If, then, the court confine themselves to tk«
lan^nace and the wilting dreumstaneos, b«tk
1«T
Tbb Cauui Una Bkinib *. Thb Waudct Bkowk >
ol the eonTitry uid tbe college, at th« timM «l
•dopling the wveral ordiiuncea; tbej will prob-
ably arrive at tbe rollowing concluBions, as dis-
tinctij indicmted in ths cas«: The eoloiiists
meant to ntabliah ft ferry, inited to tbe then
emergenciea of tbe iMiintry, but not to «*tftb-
liah a broad franchise. They Deeded a public
■eminaTy for the education of youth, and found,
by the income of thi* ferry, they could aid this
object. They therefore meant to aecura the
revenue oF the ferry as a gntnity to the college,
but Dothine more. And while they did this,
thpy intended to retain in themselves the un-
quaiifled right to aontrol, manage, regulate, and
govern the ferry at pleasure. To make the in-
come much or Itttle, and to make jnit such
provision for the pnblfc travel as they mi^bt
deem expedient. This is the conclusion which
is forced upon the mind, by reading the numer-
ous acts upon the subject. The college was
then estcenicd the child of the government i and
that govemmeot manifestly eottsidered itself
■tending in that relation with the power to ex-
ercise parental authority. Now, what effect
the court will give to this itAte of things, in
law, remaini to be seexj but there is little dif-
ficulty in understanding tbe actual relation of
the parties.
Oae thing I apprehend, howerer, is clear;
namely, that neither the ordinances or the his-
tory afford any evidence of an intent to create
4S**] 'such a franchise as is now claimed.
If, therefore, tbe plaintiffs have this ferry right,
it cannot aid their present claims.
They grasp at too much — all the river: or if
wot, they can assign no limits, either by tbe law
or the facts. The public is not to be deprived
of its sovereignty over a navigable river, upon
such indefinite, uncertain pretensions.
But suppose we are erroneous in all this rea-
soning, in regard to the franchise of ferries;
then 1 propose another objection for the solu-
tion of the plaintiffs.
The doctrine spplieable to ferries, belongs to
ferries alone among highways. It is feudal in
its origin, and has never been applied to turn-
pikes, bridges, canals, railways, or any other
clasB of public ways.
I have attentively observed tbe process of
this case, and the learning and laborious re-
BBiirch of the plaintiffs brought to its aid.
No books, ancient or modem, seem to be left
unexplored. Even foreign period ieals, fiesh
Ironi the press, are on the table; and yet they
hare shown the court no case where this doc-
trine which they set up, has been applied to any
olaas of ways, except to ferries.
The Chesapeake and Ohio Canal Company v.
The Baltimore and Ohio Rail Boad Company fin
Qill ft Johnson) has been quoted; but surely
not for tbe purpose of showing an exclusive
franehise, for these worke are allowed to run
aide by side, actually iDfrjngiog upoi each
etlier, though direct competitors.
Kigland is covered with canals, railways,
bridges, etc., but not a ease has been adduced
applying thia doctrine to them; and the honor
of extending a feudal right to such works is
saved for the courts here, if It is to be main-
tained Bl all. These feudal rights are well
knows to have originated in the rery spirit of
eapidity; wbiob aggregated to itself all prir-
Degei which Increased the masa of wealth in
the feudal lorda, at Uu expense of the public.
These rights grew np to be law from the force
of circumstances; but it is hardly worth while
at this day to enlarge such provisions, or ta
push ouiselves ahead of Great Britain, in giv-
ing sanction to them. Under this notion of
special privileges, tbe same doctrine extended
to mJUa, markets, etc. Whoever hod a market
or a mill might keep down injurious competi-
tion. We have dearly thrown the law as to
markets and mills overboard, for no luch priv-
ileges exist in Massachusetts} and the doctrine
of constructive francfaiaes in terries ought to
follow.
;lt is em^hftticallr the doctrine of ['If*
privilege agajnst public right. I speak of those
vague, indefinite appendants and appurtenants
which are said to l^long to ferries by construc-
tion and implication; not of what is granted
in terms, or by necessary and irresistible impli-
cation. This doctrine ought not to be received,
unlets it is the imperative law of the land, and
can be shown to be so beyond all doubt; and
thia the plaintiffs have failed to establish.
I come now to a very important inquiry in
regard to thia ferry. Are the plaintiffs tbe
owners of the right, be it what it nayT If
they are not, it is a question of no importance,
whether the franabise is broad or narrow. The
facts here, will, if I do not mistake their char-
acter, relieve the court from alt embarrasament.
I agree with the plaintiffs' counsel that ths
Commonwealth has the power and the right to
take any property for public u.se, and therefore
also agree with them that she had a right to
take the ferry for the site of ths bridge. How
could the plaintiffs controvert this proposition,
when their bridge is on the farryuays, and the
ferry path uniier it! But it by no means fol-
lows, if the Commonwealth hod the rljjht to
take for the public use a franchise that she bus
granted it to the plaintiffs. This must depend
on proof. Let us see what the franchise is
claimed to be, and what hns been lione with it.
It is asserted by the plaintiffs that the fran-
chise was an exclusive right to transport per-
•ons, etc., between Boston and Chariest own.
This Is an interest issuing from tbe realty. It
is a possessory right, so far as the right to ex-
clude transportation across the river goes;
though I am aware that it is incorporeal.
It seems to me, therefore, by the laws of Mas-
sachusetts, that it oould only be transferred by
deed. Am. Cb. 16, Lews 1783, ch. 37. Court*
of equily have no power to construe away
these provisions. But the plaintiffs have no
Again, the^ have no vote or act of the col-
lege corporation, or any of its officers implying
any purpose, or thought of conveying this in-
jain, the plaintiffs produce no vote, or act
leir own, evincing any dceire on their part
to become the owners of the ferry. The peti-
tion for their charter is among the papers, and
It does not even name the college; but passing
over its head, as not worth regarding, it asks
for the right to build a faridae "in the place
where the ferry is now kept.'" There is noth-
ing in the case to show that the 'thought [*4ti
of owning the ferry ever entered the minds ul
the petitioners. They had no difficulty in de-
manaing a grant of the ferryways themselves,
for the site of a bridge, without proposing any
oompensation for it. Those great ami sacred
Hi
thpn»in Coun or mm Xhmwa Statw.
fir!vBt« rights, which now flgim so Ureelj In
Ilia CBM, teem to have been no aerious oDtUtcle
to the introduction of a more conrenient waj-;
but a change of intereat has, probably, wrought
a dtange of opinion.
There ia, then, no erfdenee of any purpoae
en the part of the college to eel), or of the
plaintiff! to buy; and if the property haa been
tranaferred, it has been done without the act, or
the BBBEnt of either party, Thii would seem
difficult, if not impoteible; etill it ie atrenuoui'
ly insiBted upon, because the Act of ITSS re-
draws after It, in equity, the title to the ferry
franchise. The conclusion ia not apparent from
the premises. If being required to pay two
hundred pounds a year makes them the owners
of the ferry, then why is not the corporation of
West Boston Bridge an owner, for they are re-
quired to pay tour hundred pounds a year to
the callegel Canat Bridge would also come i-
for a share, as they, too. If my memory aervi
me, were required to pay something. Tt
plaintiffs would probably object to these c>
partners. But is there any foundation for this
Eretended consideration! Who lias paid iti
et the facta answer. The Legislature granted
a toll for passing the bridge so liberal, not to
Bay extravagant, that for an outlay of forty-six
thousand dollars, the plaintiffs hare received a
nturn of ofer one million two hundred thou-
aand dollar*, aa they admit; and their aharea,
which cost one hundred pounds, have been sold
for two thousand dollars. The two hundred
pounda a year have, therefore, been paid by a
tax upon the public travel, collected by the
plaintiffs under the authority of the Legisla-
ture. The tolls appear to have been set very
high, to cover this expense, and to give the
plaintiffs an early indemnity; as the public
might have occasion to make new ways, and di-
minish the amount of travel. This contingency
was doubtless in view when the rates were es-
tablished. There can, therefore, be no rcasonaljle
ground for saying the plaintiffs have ever paid
a cent of compensation. It would be extraor-
dinary if they, without any conveyance, or any
purpoae to convey, and without any considera-
tion, cDuM aet up a title to a valuable property.
(But they suggest further that the State has
493*] conveyed the ferry 'franchise to them.
The Act of 1780 will be searched in vain for the
intimation of any such purpose.
Moreover, the State has no power to take the
property of one and convey it to another. They
may condemn so much as is necessary for pub-
lic use, but nothing more. To test this matter,
suppose the bridge were taken away, can the
Elaintiffs set up a ferry T I think, no one ciin
eaitate what answer to give. They are author-
ised to maintain a bridge, and no other kind of
The conclusion of the matter is that the Leg-
islature authorized the plaintiffs to aet up a
bridge upon the ferryways, and took upuu
themselves to i)uiet the college, which neitner
assented nor dissented, but relied on the Com-
monwealth, which had always been its great
patron and protector, that eventual injustice
■hould not be done to it.
Tb* learned judgea, three to uue, reached,
nbstantially, tUa resnlt tn Massocbusetta. R
ia therefore plain that the plaintiffs are not
grantees in the ferry, and have not, and new
bad any interest therein. The ferry fronchist,
therefore, whatever it may be, is of no impi^-
tanoa to the decision of this case, aa the plaim-
tlffs can claim nothing under it. The plamtiSi
having failed to show any contract in regard to
the ferry, and the Legislature having passed so
law touching the ferry— for the Act of 1B2S
does not name or allude to it--nothing has beeD
done by the State to impair the obligation of ■
contract, or to violate tne Constitution of the
United States. The discussion, however, mtf
not be wholly useless, as some principles have
been examined that are applicable to other
parts of the case.
I shall now proceed to examine the aet *l
1736, under which the plaintiffa acquire the
right to build the bridge, and all other riefaU
which they have. This act is ao barren in then
proviaions which are neceaaary for a feudal
franchise, that a great effort haa been made t«
build up a claim upon the vague doctrine of
ferry richts. Nothing is more reluctantly sur-
rendered than inordinate profits.
The provisions of thia act are, substantially,
as follows;
Sec. 1, creates a corporation.
Bee. 2, provides for its organ iiati on.
Bee. S, gives a toll for forty years.
Sec. 4, relates to the dimensions, etc., of thi
Sec. fi, gives £200 a year to the coUego.
These are all the provisions.
They had a right granted for what they
asked, namely, to erect a bridge in the place
franchise provided for in the act. There is not
a word about any other rights and exclusivs
privileges. Nothing restraining the power to
make new bridges. No covenant that then
shall be no diminution of travel, or diversion of
, if >
their property s
Vou will look in vain for any Euch pravi^iuns,
and if the plaintiUs have any such ri^'lils grow-
ing out of this act, they must be implifj, for
they are not secured by express stipulations-
Here the question recurs, what is the rule of
construction applicable to such actsT I shall
ask attention to but one authority— -the case of
The Stourbridge Canal Co. v. Wheeley, 2 Bara.
&, Adol. 7S2, to which I have referred. Lord
Tenterden says: Sui^ an act (that id, an act ot
Parliament incorporating the plaintiffs to make
a canal) is a bargain between the public and
adventurers, the terms of which are cootuned
the aet. He afiSrma that the rule of conatra-
ing such acts is well established to be in favor
of the public and against the adventurrtisi
which is exactly opposed to the rule ao elabo-
.tely laid down by the learned counsel in this
casa. His lordship distinctly and emphatically
declares that whatever is doubtful, or ambig-
, or whatever is capable of two cODStruc-
, must be construed favorably for the pub-
lic, and against the adventurera. Thia cast
seems to run on all fours with the one under
consideratioOiin waayof its fekturea — both acts
Peters 11,
1837
Tks CBAMum Rim Bbid« t. Tuk WABun Bhumik ft ai.
t«glil*tion; iMth own w»7(, and each cleimi «.
fnochise. The ppnertl characleTistica are there-
fore alike, »nd 3early the rules of law applica-
ble to both, as regards the construction of the
shartera. ought to be alike; and if ao, the piain-
tlffs can take nothing but wbttt li elearl^ and
diatinctlj granted to thein, either tn words, or
bT plaiD and neceaaary inrerence. The quea-
twn then ariaea, ia ft a neceiiarj and irresisti-
Ue interenoe, from the terms of thii act — a
tbing BO plain as to admit of no doubt — that
the Legfalature did intend to grant to the plsin-
♦iffa a roving franchiae, to which they can aa-
«fgn no limits; which, in 17S2, was above West
Boston Bridge, but ia oow Hmited to Boston
And ChaHestown! If the plaintiffs cannot give
body and shape to the thing to be inferred, if
they cannot asaign to it limita; in a word. If
tbey cannot tell what It ia, how can it b« said
to be either a plain or a neeesaary inference) It
«an neither be the one or the other, and the
very doubt thrown orer it forbids the making
of the inference, according to the prlnciplea so
4t4*] elearly asserted *by Lord Tenterden.
Implication cannot go beyoad what is certain,
mad irresiatibty necessary) eapedalty when an
«et ia capable of an obvious conatnietion, oon-
•Istent with its general purpose, without such
implication. This act is of that character. The
Legialature granted the right to construct and
maintain a bridge, and to take tolls for forty
Cars — but this right of taking toll does not go
yond the privilege of demanding it of such
persons as voluntarily pass over. This is all
that is guarantied, and these righta have not
bean touched. Whether another bridge should
ba erected, au near aa to divert the travel, ia a
matter which they did not bind themselves not
to do, but retained in themaelvea the right to
ixereiaa their diseretion, as tbey pleaaed, in
■Mae, in their judgment, the public needed new
aceommodatioiiB. Tliey asserted the right, and
diverted nearly half the travel, when West Bos-
ton Bridge was sat up; again, when Canal
Bridge waa act up; again, when Prison Point
Bridge waa set up, and lastly, when Warren
Bridge waa erected.
The Commonwealth haa, nevertheleia, exer-
olsed thia power aparingly, and only when
pressed by strong tmergenciea. The plalntifta
aaked. In their petition, to be Indcranifled for
their expenses, and they have been Buffered to
go oa until they have been remunerated in a
moat princely manner. The Commonwealth
having, at all timea, the right to set up inter-
fering bridges, has forebome to do it, in a moat
beeotning apirit of liberality, and little merits
the denunciatiooB now loaded upoo her. Such
seems to me to be the plain import, and the ob-
vlona meaning of the act, and no forced con-
atruction or implication ia necessary to ascer-
tain the rights of the parties. The plaintifTs
aeem to suppose a diversion of travel is an In-
vasion of their property. This is a mistake.
They have no property m travel, for nobody is
obliged to travel over tfaelr bridge; and they
now admit that bridges may be erected any-
where, except between Boston and Charlestown,
however much travel thej may divert.
They affirm that a grant of toll for forty
yean means nothing, unlets it be absolute and
uncondlticaal, •eearmc tlw tr:.v«l. IQght It not
b* grantad on the express eondltlon that otbet
bridges should be erected, if deemed expedient t
Not granting away a power ia equivalent to re-
taining it, and the legislature never surren-
dered the right to build new bridges. The plain-
tiffs have, therefore, enjoyed their privilegeB,
subject to this ri^ht. Their tolls have been di-
miniahed; but neither by wrong, or any viola-
tion of their right* under the act; *nor [*4»B
haa any injuatice been done to the corporation,
aa I purpoae to prove before I leave this point.
But tbey again claim a reasonable construc-
tion. Why is not thia construction reasonablcT
The plaintiffs make less money: but ere they
not iademniOedt Would it be more rcaBonable
to permit them to exact an endless tribute, and
to aubject the public to other great inconven-
iences and delays in their busineaa! What
were the large tolls granted for, unless to give
a speedy indemnity, that the pubLic might have
new aceommodationa when needed I What
would be the plaintiffs' judgment of what ia
reasonable! They told you, in 1782, it waa an
unqualified control over all the important por-
tion of tlie river. You must not, they said,
impair our bridge. Any eonstruction would
be deemed unrcaaooable which should diminiah
the toll.
Again, it is said there are stockhoidera who
are great sufTereri, having bought in at two
thousand dollars a share. I will not deny
this, for I am uninformed as to the holders of
stock; hut 1 will prove that this consideration
is entitled to little weight, even in equity: foi
I will show that the Commonwealth gave the
most uuequivooal notice, to all persons, of her
oonstraction of the Aot of 1785; and when she
renewed it in 17S2, she placed upon record a
solemn and public legislative decluratiun that
she acknowledged no such rights vested by that
act as are claimed here.
In 1792, Oliver Wendall and others petitioned
for leave to erect what ia called West Boston
Bridge, about a mile above the ptaiatilFs'
bridge. The plaintiffs sent in their remon-
strance, objecting that it would impair their
property, by reducing their tolls one half.
The petition and remonstrance were com-
mitted to a Joint committee of both Houses,
who heard evidence and counsel in behalf of
the parties; and after a most full investigation,
they reported in favor of the new bridge.
'litis report was so amended by tlie two
liouses as eventually to contain all the provi-
sions of the Act of 1792; and in this form it
was accepted by both Houses, in this report,
thus adopted as the basis of this law, ia con-
tained this declaration! "There ia no ground
to maintain that the act incorporating the pro-
prietors for the purpose of building a bridg*
from Charlestown to Boston, ia an excluaiva
grant of the right to build over the waters of
that river; but considering the erection of
Charlea River Bridge was a work of magnitude
and hazard, and that great beneSta have arisen
the public 'from the success of that [*4»f
enterprise," etc.; "it is reasonable and proper
that a further time of thirty years be granted
to said proprietors, to receive and collect, for
their benefit, the toll now established by law
for passing said bridfe," eto.
The Legislature being apprised of the broad
claim set up on tha trial before Ui« oouunittee,
•0*
SoraEUB Coun or thb UinnD dr^TH,
Utt
took thb oeeaaloB to amj. In Goniiectton with
the axlcnded ^nt of tolli, that the pUlntiffa
had no such nghta; and that in giving the as-
teruion, thor tneuit to give countenance to no
■uch thing, but elmply Ui reward, moat Itberal-
ly, a eomuendable spirit of entcrpriw.
When the charter of the defendMit* waa
granted in 1R23. the fort; yean had npired,
and the plaintiffa bad entered upon the e:rtend-
od period provided tor by the Act o( 1792, or
tbe charter of West Boeton Bridge Company.
Thia declaration, and tbe pasaage of tliis law,
being concurrent acta, tbe meaning of tbe Leg-
lalature cannot be miataken. They put their
explicit denial upon the right to raiae Implied
OOTenanta not to erect new bridgea, and declare
that they extend tlie right of tolla, becauae,
amonr other reaaona, the platntiffa had no auch
•xoluaive privilege. The ptalntilTB have accept-
ed the provision for them in the Act of 1792;
claim the beneflta of It, and plainly ought to
b« bound tn equity by tbb erpoaition.
It waa a diatinot notice to all peraiHia wbe
were or might be ooneemed In tbe property,
that the denial of the right of the State to
make new bridgei would not be regarded; and
whatever might hy conBtruotlon be their priv-
ileges under the Act of ITS5, ita renewal in 17112
waa on condition that no auch pretenalon againat
the power of the State ahould be Kt up,
It liaa been laid that this ia only found in thn
report, and la not, therefore, obligatory. But
to tbii I answer that the report wna the subject
of diatinot, deliberate legislation, in both
branches. It waa aooepted by both, acting ii
their oonstitntlonal capacity. It ia part of tbi
recorda and fllea. Tbe law ia only an echo of
tt, embodying the matter in the aecuatomed
forma of legialation. We offer this report, not
to explain away or to alter any proviaiona ol
the act, but to refute an inference made on
presumption; to negative an implied enga^
ment which is attempted to be enforced; to
show that the Legislature did not mean what
tbe plaintiffs attempt to force upon ua as
construction, and most assuredly it is compe-
tent for this purpose; It is competent to over-
throw a presumption which it positively re-
4S7*] futes. *It ia therefore oonsluaive upon
the plaintiffa, and has the same reatraining
•fleet on their presumptions that it would have
if it had been embodied in the act. How can
they, then, show the effect of it t The counsel
replies that they do not claim a fninrhise ex-
tending to West Boston Bridge, for they only
claim between Boston and Charlestown, and
tbere Is no distinct lar«r claim set up in their
remonstrance of 1702. If tbey did not consider
the West Boston project an interference, why
did they remonatrate, and why represent that
It would take away half their travel, and nak a
refusal of the grant deaired by the petitioners t
But suppose, if you can, that tbey realty did
mean to assert that aueh a bridge would be an
Interference, the declaration, wblch ia an an-
swer to the remonstrance, only hecomea the
more pointed and ekplieiti for it ia then aay-
Ing, in BO many words, you have no exclusive
rights between Boston and Charlestown, and
we admoniah you of it, and renew your charter
with tbe eipresB understanding that you are to
■0 oonalder it. View it, then, in any aspect in
which it may be preaented, and the declaration
S0«
■till stands nnahaken, and cannot be eonatrael
away. It clings everywhere, aa a condition of
the renewal, not to be explained away.
What right, then, have the purchaeeis of
atock to cootplainT They are bound to notice
the terms of the charter, and to regard its pro-
viaiona; and surely ought not to demand relief
from an inconaiderate or rash contract at the
expense of the public
But the court has been aaked, with eonaider-
abla emphasis, if the plaintiffs would have
accepted the charter, with power left in the
Legislature to erect brideca at pleasure I
The answer baa already been given. They
did accept it, after all the deliberation they
saw tit to make, and with thia unequivocal no-
tice before them.
We ask, in turn. If tbe Legislature would
have granted to any company such privileges
aa tbey claim, II the pririlegea had been set
forth in plain and intelligible language in the
act! Would they have given an elusive right
over the river to auybmlyl
The anawer Is again at band. No sooner
were such claims aet up than tliey denied their
validity, and refused to recognise them. They
again, in 1807, when Canal Bridge Company was
incorporated, renewed tbe declaration againat
them in a formal manner, and again when
Warren Bridge was established. Tbey have,
at all tintes, earnestly protested against all
Buoh elaime. Tbe views of tbe Legislators
'and of tbe people are not doubtful on [*48S
this point. Ihey have not misled the plainliffs
by silence, or for a moment favored tlieir pre-
rendercd wortliUis; it has been taken from
them and given to others. Here the plaJntilT*
mistake their rijjhts, and reason from false
premiaes. Tbey suppose they had a propertv in
the public travel, wheo tbey had none. There
cannot be any property in public travel, be-
cause no one is under any obligatiun to pay
toll, unless he pesscH the bridge, and that is an
" "unal act. If tlie Act of 17ti5 imposes no
rictions upon the Legislature, and tbey had
ight to authorize the new bridge; then
nothing is taken from the plHintilTa, if all the
travel passes over it. All that can be said ia
that while the Legislature forhore to e.wrciM
its lawful righl.i, tltey made a vast deal ol
money by an exclusive enjoyment; and now
tliey make leas, not bccuu^ anything ia taken
from them which was theirs b.V coiitract or
grant, but because a lawful competition is set
up. Their case of hardsltip dilteia In nothing
fi-om those of frequent occurreuce.
Suppose A sells to B a tavern having a largs
Lstom, and makes coiivejunce. A then erects
another boiise near by, and the custom followa
him, whereby B is ruint.d. B has no remedy,
unless A baa covenanted expresaly not to 00
this act.
Again, one baa a tavern, store or other place
if business, dependent on pulilie travel fur its
ustom. A new road is established, which di-
verts all travel from it, aud renders this prop-
ty worthless; tbe owner has no remedy, but
must bear the loss with what patience he may.
These itre matters of frequent occurrence, aod
present cases ol oiucb greatei bard:diip than
un
Tb» CBABLn Rim Bumb t. Tbb Wubeit Bbidgr r Ai.
th* plaintiffs ktb called npon to endure;
Ihrj have reaped too rich harreiti to be great
The ownen of nal estate on the avennea to
their bridge will, if the trarel Is discoDtlnued,
have theyT The pTointilTB, therefore, If they
thould hereafter receive less tolls, will be in
no extraordinarj position. It will doubtless
turn out that their property la far from worth-
Imb, as it may be applied to other uses.
But what if there is hardshipT la that to be
Nlieved by making a new contract here, or by
altering an old one! Sliall the Commonwealth,
to relieve the plaintiffs, be made • party to
stipillationa that she never entered into! This
would be more unjust than any losses or iocor
4S9*] veniencea 'which can occur to the plaii
tltfs. Piesuinptions got up to relieve hardship
BT« too often the pareots of the greatest injus-
tice.
The pUIntiffa seem to thinic it is incredible
that anr of the large privileges which they
Imw enjoyed should rest on the forbearance
«f The Commonwealtb. They treat the idea
that they should hold anything at her will
aa preposterous. To be at the mercy Of the
Btmit is absurd, and so irreconcilable with jur"
reasoning, that it is not to be entertained i
giving eonitruetion to this Act of 17B5. W
must arrive, they think, at any conclusion but
thia; though the very terms of the act force
into this position.
Either the State or the plaintiffs have the
eontrol of this river; and whoever has, excludes
the other from the sole enjoyment. In order to
fre« thenuelves from control, the plain tilTs
would bring the State to their feet, and place
her ftt their mercy. This would bo the
would be the most becoming posture, and which
would best subserve the ends of public Justin-
— to place the plaintiffs at the mercy of the
Stftte, or the State at their mercy.
Tbej demand, when they say they have a
right to exclude injurious competition, that the
travel shall be arrested on the north bnnk of
the river, and driven by circuitous «nd incon-
venient ways over their bridge, and shall, in
addition, pay tribute perpetually; not to in-
demnify for the enternrise, but to add to the
mas* of wealth already accumulated. If the
State ia tied down to this burden, be it so; l.ut
let us see decisive proof of it. Let it not be
by presumptions, or implications.
If the plaintiffs wish for equity, let them do
Muity; that is a Brat principle. Let them
frankly admit that they had notioe ot the lim-
ited terma on which their act was renewed
in 1T92, and not try to abut that all-Important
(aet out of sight.
The honor of the State ia untarnished, and
ber reputation fully vindicated. There has
been much false rumor in this matter; mucli
mistake and unjust imputation. The State
has made no attempt to resume her grants, or
to seize private property, by violent and revo-
lutionary measures, for puolio use. She has
uot acted arbitrarily, illiberally, or ungener-
ously, toward anyone; but, on the contrary,
ba4 forborne to use her lawful power, until
■ Uc4.
■he taw those who had done a valuable pnhlie
service, not only re-imbursed, but enriched in
a manner surpassing all ordinary acqnfsitloiis.
She then listened to the 'demsnd of [*S00
the public for further accommodations, and
not till then. There ts no blot upon her es-
cutcheon, nor stain on her garments, In this
In proof of this, I fearlessly assert that the
couneel are mistaken when they say that a de-
cision in favor of the defendants will be fatal
to future enterprise. This ease hu stood de-
cided in their conrt for several years, and the
history of Massachusetts can exhibit no peHoj
tbat will compare with it in investments for In-
ternal improvements. Confidence in the in-
tegrity and good faith of the State never stood
hi<;her, nor did capitalists ever go forward
with greater resolution and courage.
I feel, therefore, justified In affirming that
the honor and faith of the State is untarnished,
and she stands blameless in her conduct.
I come, then, to the conclusion, for all these
reasons, that the Aet of 17S5 is Incapable of .
the construction put upon it by the plaintiffs:
That in 1702 this construction was given to
it by the Legislature, and it was then extended
thirty years, upon condition that it should be
so construed:
That the stockholdera can complain of do in*
justice, for forty-six thousand aollars has re-
turned them over one million two hundred
thousand dollars; and If anyone is a loser by
giving a great price for the stock, be most Im-
pute it to his neglisence in not regarding the
construction given by the Legislature to the
act;
That the rule adopted by the LegiaUture
and the rule of the common law are con-
current, and, therefore, if the notice should be
ruled out of the case it will not change the re-
sult.
All this, I contend, ii in tnll accordance with
the policy of the State.
1st. Her system of free road laws has, at all
times, been active, and by Its operation has ren-
dered many turnpikes worthless.
Zd. The statute booha will show that numer-
ous bridges have been granted at or near old
ferries, without eorapensation.
3d. Railways and canals hare been granted,
in many directions, regardless of old franchises,
or of their injurious consequences to old lines
of travel; hut of this more hereafter.
Since, therefore, notling Is taken from the
old bridge by the law of 1828, but the proprie-
tors are left in full possession and enjoyment
of *everything granted to them; and [*ftOI
since their only complaint is of a diversion of
travel, and a consequent diminution of tolls,
I am not able to perceive that they have any
contract which has been violated, or had its
obligation Impaired; and, therefore, the Con-
stitution of the United States has not been vio-
lated. The Aet of 182S does not rescind, alter,
or modify any of the provisions of the Act ol
1TS5, but leaves the plaintiffs In the full en
joyment of them, and in the undisturbed con-
trol of their bridge.
I will now answer, more particularly, som>
of the argument* of the learned oounsel. Most
m
SUFUMK CODBT or TBE URtTED Btatm.
183T
of the Nsftonlng Ig founded on premiiei wliteh
will fall, if we have sound views of tlie law, or
ia designed to OTerthrow paiitions which we
have never usumed.
Ha saji, for example, that the Legislature
ha« no power to resume a grant. Our answer
Is that they have not attempted it, and there-
fore that question ig not raised in the case. Wi
contend for no suiih power.
What they claim as their property was nevei
roted to them, and the mistake u that they
not own what they suppose hae been taken
away. They must establish their title, before
they talk about the resumption of grants, and
the taking away of thfir property. They
Biuat remember that this right of property ii
the Tery matter in litigation; and one of thi
great points to be settled is, whether they shoW
any title that can stand the test of legal sci
tiny. It they do, we do not claim it without
equivalent.
It is said the franchise is to be ascertained
, by the facts, and is to be reasonable. It sepms
to me that it is to be ascertained, as Lord Ten-
terden says, by the terms of the bargain; and
theae are to be found in the act. What ■
deemed reasonable, we have teen is co-exti
aive with the seliiMh desires of making mon<
When the plaintiffs depart from the act, they
can find nu standard for what is reasonable.
To-day, the exclusive claim is between Boston
and Charteatown; yestcrdny it embraced Cannl
Bridge, and the day before West Boston Bridg<
If the plHinlilfa can show no rule to settle rca
•onable limits, how can they hope the court
will relieve them from the embarrassment!
Wlien we go In fpnnh of what is not apparent
in the act, we grope in the dark; and hence,
the well estaliliehed rule laid down in The
Stourbridge Canal Company v. Whaley, that
fou shall not build up clnims on presumption.
The plaintiffa could find no authority to rest
upon for making Boston and Charlestown the
boundaries of their franchise, until they fell
K02*] upon 'the late case in the Exchequer
of Uuzzy T. Field. What assurance have we,
when the law as to ferries shall again come
under consideration, that it will not receive a
new modification, and their franchise then
take new boundaries T
But again, another and different rule is kid
down by the counsel, which undoubtedly is
considered reasonable, though in its applica-
tion it rests on quite dilTerent principles.
The counsel, in treating of what is reason-
able, aaks, how do you settle what is a nuisance
where the air is corrupted T Not by bounds,
not by distance or measure; but wherever the
noxious atmosphere is, there is the nuisance;
•D with the plaintiffs' case, where the injury
it, there la the nuisance. Whatever takes
away their tolls, invades their franchise; for
this is the injury of which they complain.
This view brings us back at once to the old
doctrine, "you shall not impair my franchise,"
and proves in the most conclusive manner that
all the bridges above theirs are nuisances, for
the travel which passes over them would chiefly
go over their bridge, if the others were dosed
up-
It is t4>o plain that the learned counsel. In
his able argument, has, whenever he has ex-
pounded tbe law, or undertaken to show whAt
»0*
is reasonable, fallen back upon this rule as th«
only resting place he can find. He began by
saying, what is reasonable must be ascertained
by the facts, and ended by showing that the
only tact necessary to be inquired into is, does
the injury complained of lessen the tollsl If
it does, it impairs the franchise, and is a nui-
sance. If this is to be the end of the inquiry,
the reasonableness, or unieasonflbteness of tha
franchise set up, is not a matter of investiga-
tion. The inquiry la not into that fact, but
whether the tolle are diminished. And, I think,
this will be found to be the only standard tbe
plaintiffs have ever set up. Indeed, if yon ad-
mit that some injury may be lawfully dona,
where is tbe limit I Let us then dismias this
wandering Inquiry after a reasonable franchise,
and go back to the Act of ITSo, and hold to
that, instead of building up a new contract;
for tbe plaintiffs have professedly ceased to
claim a right to put down all competition that
lessens their tolls.
It is admitted, says the counsel, that the Le^
islature haa the control over public ways; and
their judgment as to tbe necessity for them is
tinsl and conclusive. But he adds that it it
not, like tbe British Parliament, omnipotent,
for this court has a right to correct its error*.
"The power of this court, allow me to t'SSS
say, also, is not omnipotent; and it can acquit*
no jurisdiction over an act of the Legislature, ns-
less such act impnirs the obligation of contract.
I may add, speaking it with great deference
and respect, tnat while I repose great confl-
dence in this tribunal, I feel no cause for dis-
trust in those of our Commonwealth. 1, thei«-
fore, do not feel that we are unsafe without
such a corrective; as we in truth are safe, ia
most matters upon which our courts adjudicate.
I can see no more impropriety or hazard in rest-
ing final jurisdiction there, than here; for I an
not aware of any proneness there to error or
excess, which demands a corrpctive. Indeed, it
cannot be desirable, nor is it the purpose of tbe
federal Constitution to carry this jurisdiction
over the constitutions and laws of the Statoi.
The system would manifestly be insupportitble;
and I shall, before I leave the case, attempt
to show that the jurisdiction of this court doe*
not reach this case, because (t falls exclusively
within the constitution and laivs of Massachu-
setts. I shall endeavor to make it appear, even
if property has been taken for public use. it is
no violation of contract to do it; and the qoee-
tion of compensation must be decided, Cnallj,
by our own court.
Again, the learned counsel says, "^he Legis-
lature is limited by the principles of natural
justice;" and I agree that it ought to be, aud
that it ought not to take property without com-
pensation; but the Constitution of the United
States nowhere gives this court a right to in-
quire whether the Leeislature and the Stale
courts have disregarded tbe principles of natu-
ral justice. I would respectfully aek if thk
court is to be the corrective in such casesT
But I am not willing the reproach of violat-
ing the principles of natural justice should rest
on the State. Did the State ask tbe plaiotilft
to build the bridge? Did she ask them to ac-
cept tbe act after it waa made a lawT Thsy
sought the privilege and accepted tbe act, after
takUg all tbe time they desired to eonsider it*
lan
Tn CEUua Bim I
■ T. Ths WuMRt I
Kt
proTltioaa; and hata had, and may amtlniw to
aave tha full benefit of th*m. Tbe mppoMd
violation of natural Jiutice doea not conaiBt In
interferfng with the provisiona of tbe act, but
in refuting to reeogntw elainu not enumerated
Id It — righta unauthorized by it — privileges not
intended to be granted. We eoniiot find in the
act certain provisiona of which tliey claim tbe
benefit. la it » Tioiation of natural Jnatiet to
ntuie them thi right to add what they pUaM
to tbe Uen
Again, they atftt* ta the eoort, t« prore their
diepotiition to accoounodate the public^ that
Lltdy proposed to the Legislature to enlarge the
ft 04*] 'bridge and the avenuee, and to make
oilier alteraUona to meet tbe public ameraeB-
; and ao they did: but ia ft not too pUin
■■■ - ... ^ ^^^
that tbii
y hadc<
tested the right to build a new bridge a^ia and
again, before committeea and the Legislature.
Toe corporation Toted to make the proposals on
the 2Sth of February, and the law was approved
on the Uth of March following. There Is lit-
tle doubt, therefore, that they were made after
Uie report of the committee, and during the
pendancy of the bill before the Legislature. It
Is hardly reasonable to sunpose that propoal-
tiona made, thus apparently with reluctance,
knd In that late stage of the proceeding, eould
be aaj otherwiae viewed than as measures for
delay — than as counter plan* to defeat the
measure. But whether that be so or not,
they earns too late.
But further, it seems they considered them-
aelvea as having no authority to erect snitable
aoooQunodations for the public They could
not enlarge tbe bridge or the avenues. If insuffi-
dent for the travel, without a grant of power
from tbe Legislature. Is this oonaiatent with
tba claim of exclusive right over the rivert If
the court will look into the eases Quoted In re-
rd to markets, It will be found tnat the pub-
mn under no ohligation to respect the fran-
dilae, unless suitable accommodations for tbe
bnainess is afforded, and that tbe exclusive
right, and the obligation, go together.
la it true that tbe plaintiS* hold this exclu-
sive privilege, and yet have no power to open
a way suited to the public travel I Does not
thia limitation of power prove a limited fran-
ehlaeT Their power to enlarge does not reach
beytmd tbe planks of tbe bridge; and wbyT
B»c*iise the Act of 17SB will carry them no far-
ther. By what rule, then, wiU it carry their
franchise farther t If they can imply a fran-
ehtse, then may they imply a power to enlarge,
but this I tbink they will not venture upon,
dnoB they admit the act of ITSB givea no aoun-
tenance to it.
These an some of tbe leading arguments
whld remained nnnotlMd, and I shall not de-
tain tbe eonrt longer in pursuing this kind of
ioQpIry, for I shall occupy mors of their time
If I follow out tbe various petitions taken, in
•a atvument of nearly three days, than I think
If wo ve right In the legal poaltliHis we have
S«B'] asanmed, our labor ^re b nnneoes-
r, for
• ilta.
eannot know how the minds of the court mV
run in this matter, we mnit Investigate the
The auestion is, if property has been taken
for pnbUe use, under tbe Act of 1828, and no
compensation has been made. Is it a violation o(
the rights of the plaintiffs so as to impair the
obligation of contract, and thus oonfiict with
the Constitution of tbe United States!
I shall contend that, whatever may be the
constitutioa and laws of Massachusetts, and
whatever obligations they may impose on the
Legislature, to provide coiopeaBation where
property is taken for public u>e; the omission
to do it, in the Act of IS28. is no violation of a
ooatraet which impairs its obligation within
tbe meaning of the Constitution of the United
States, and therefore this oonrt has no juris*
diotioB in tbe matter.
To Mtablish this conclusion, I shall attempt
to malntaiu the following positions:
1. That the power to provide public high-
ways is an attribute of sovereignty, necessanlj
residing at all times in a State.
This is apparent; for without this power all
interconununicatioD would be interrupted, and
each person confined in matter of right to his
own estate. It is an element of sovereignty,
as much as the power of taxation; and polit-
ical organisation cannot exist without it.
8. Tliis power necessarily implies the right
arty to public use. The alternative is that the
government must have this power, or the pub-
lic can have no roads.
is held and enjoyed, subject to *^^
right of sovereignty, resting upon it as *« in-
eumbrance.
I know of no property in the State exempted
from this liability; and in the 4 Pick 400, Tbs
Com. V. Breed, tbe court allege that it ha* al-
ways been taken when needed, be it what It
may; and mentions, as illustrative of tbe ex-
tent of this right, that tbe Legislature have at
pleasure obstructed navigable rivers, which ara
public highways. The plaintiCFs' bridge was
buitt upon the very wa;-s of the ferry, and the
oourt io Tth of Pick, considers this as lawful.
This right is oo-eiistent with the colony,
•nd, as far as my knowledge extends, has nev-
er been questioned. The Legislature are the
'sole and final judges of tbs necessity £*BOt
of taking property in this manner, on the
^ that it '- '^-- '-■' "- '-
the p
wants. Ibid.
4. As this right to provide ways lies among
the elements of government, and has always
been exercised and asserted in its broadtst
terms, it follows that tbe right to take private
property for this purpose ia equally broad; and
that the mere taking and appropriation of It to
public use, can never of itself impair the obli-
gation of contract, or violate tbe Constitution
of the United States; for the fundamental laws
of the State autborise the taking, and ail prop-
erty is always held on oondition that it may bs
•o taken and applied The right rests as an io-
I Umm SiAna
un
oombKnee upon H, m nndi mt tha rigkt of
t&zation.
Tbii principle is auitained, tf It neecU antbor-
tt7, In 4 Pet. GI4, Billing! t. Tha Providence
Bank; where it is Mid, ID tubstKnce, that if *
franchise be taxed to its ruin, by the rery pow-
«T that created it, this I> no nolation of con-
tract, for the right to tax !■ an abiding public
right covering lul property. To refuse to make
compensation may violate the coiutitution of
MkBsachuRetti, but not of the United States.
The right to make war, to impose embargoes,
and non •intercourse acts, to ehaoge public pol-
icy, to regulate intercourse with foreign eoun
tries, and to do and perform many other things
— all which m&y subject the people to great
hazards and losses — has never, and can never
be queationed, whstever may be their Influence
upon trade or individual property. But how-
ever diasBtroiiB such acts may be, and whatever
losses may be sustained, the citiiens are with-
out reineay. These mutations malie one poor
and another rich, but tbey are Incident to the
aocial and potiticftl condition of manliind. Pnb-
Uc policy, and public laws, cannot be made to
bear upon all alilie. New ways, for example,
must be provided. In doing thit, the proper-
ty of one which Is not Uiuclied, is nearly
ruined by being abandoned by the travel, while
" ■ * " '■ benefited by the
r way over it. But all who hold prop-
that of another la benefited b
e paaaage of
0 bold prop-
erty, hold it subject to the right to make these
changes, for the public good demands it; aud
the right to do it must, f think, stand urn^ues-
tioned. It is one of those attributes of sover-
eignty which must be constantly exercised; and
such property, be it what it may, must be tak-
en as is necessary to meet the exigencies of the
public for ways.
It ia plain, therefore, that no property is ex-
BOT'l empt from this liability 'to be taken,
unless the State has agreed to exempt It; and
it may well be doubted whether the Legislature
of & State has any authority to bind the State
to ■ contract to exempt property from this lia-
bility beyond the pleasure of the SUte. This
Kwer bears a strong resemblance to the tas-
r power; and in Billings t. The Providence
Bank, the riglit to perpetually exempt property
from taxation is considered doubtful. If the
sovereign right to make roads can be alienated
as to a small territory, it may be as to a large)
and essential powers forever. The sovereignty
of a State seems to me to be an unfit matter
for bargain and sale, in perpetuum; and hence
the right is acknowledged, whenever the public
exigency demands it, to lay new ways over
ways already granted, as in the case before ui,
by compensating for the property taken.
When a way is laid over property, but two
Suestiona can arise: is the property exempt
rom liability to this public burden) and is
compensation provided for such as ia taken for
publio use I The first of these questions is not
raised In this, for it is not urged that the de-
fendants' bridge touches anything exempt from
being taken for public uae. Tbi second, aa 1
have Intimated, I ahall by and by attempt to
prove, doe* not fall within thia jurisdiction,
but beloDga to the local courts.
Tha plMotiffa nis« Motber question, which
I mnat Brat eoulder, for It meets no bera fa
its natural order; they allege that the Act af
1828 impairs the obligation of contract, aad
therefore violates the Conatitntion of the Unit-
ed States; and thia they must establish before
they can give this court jurisdiction. I cob*
therefore to the flfth inquiry: Has the Stmta
agreed to make compensation to the Chsirka
River Bridge Company, for the privilege of rua-
ning another bridge or way across the river,
which diminishes their tolls I If the State ha*
made such a contract, let her abide by it; if not,
then let the plaintiffs show some right to bring
No such provision can be found in the Act of
ITSfi; nor ia there anything in the act which
would lead one to suppose that any such pur-
pose was, or eould have been within the latent
or meaning of the Legislature.
It would, therefore, be a farced, unnatural in-
ference. But under the rule of construction
applicable to such acts, I deny the right of the
court to raise an implication which is not a
clear and necessary inference from the terms of
tha act. If the inference be at all doubtful,
*or if the act is fairly capable of anotfa- ['SOS
ar construction, then the implication cannot be
raised. I submit to the court, with much con-
fidence, that such an obligation docs not spring
naturally from the language or general tenor ol
the act; and one can scarcely fail to be con-
firmed in that opinion, when he turn* to the
bill of rights prefatory to the constitution of
Alassachuaetta, and there finds, in the lOlh arti-
cle, provision made for compensation in case*
where property is taken for public use.
The plaintins, if tbey thought of the matter
at all, doubtless relied on this provisiun in the
fundamental law. They had no molivcs, then,
for other proviaions in tike act; for the Consti-
tution of the United States was not made or
ratified till 178!), four years aubsequeut to the
passage of the act of I78G. It seema to me
hardly to admit of a doubt that when the Act
of 178fi was passed, all relied on the biU dI
rights for indemnity, in case public emergency
called for an appropriatioD of the franchise for
This being the state of things, I will inquire,
first, what provision has been made to satisfy
the constitution of Massachusetts! And second,
whether that of the United States has beea
violated! On the first point I will ouly add to
what has been aaid, that I shall not contend
that where property is taken for public use,
the bill of right* does not impose a peremptory
obligation to compensate for it.
The Act of 1828 provides an indemnity for all
real estate taken for the bridge.
The plaintiffs complain that a part of their
franchise is taken. What is itt An incor-
poreal hereditament, but Issuing from real es-
tate; a right to exclude other interfering waya
Now, if they have such a right spreading ovv
tbe ri
••*
show that the new bridge is within their limits,
why is not a suBicieDt remedy provided by th*
actf I* it because tbey cannot define thia frwa-
chiee, or give any reaaunable account of ita di-
mensiona, that they omitted to put in their
claim for damages! If the new bridge doea
Mt toi|oh this right, thu, b/ the Uwa of Maasa-
IU»
tarn CuABLka Rim fitnwi w. Tbk Wamkr Binm n Jl.
The doctrine la well lettled in Cullender
Marsh, and many other costs, &nd the rule*
applied to the bill of rights are thete:
Where prooerty is actually taken for publte
use, there the iiartj iujured nuy have hi*
Where property Is not touched, howewr
ftOB*] much the owner roay 'laffor, he haa,
under the bill, no remedy, for nothins ia takau
for public uBC, and it » damnum absque in-
iuriaj what is merely consequential, la, then'
fore, without remedy. If the riKht of aicln-
•ion does not reach up the river above the new
bridge, then the defendants are not liable,
whatever may be the diversion of tolls; for
they do not touch the property of the p^aiii-
tiffa. I have shown, I truit, very elcarly, that
« diversion of tolls ii not neeaasarllv, of itself,
any invasion of the plaintiffs' righta. They
■dmit this, beoauas they now admit that Canal
Brid^ and West Bolton Bridge were both law-
fully erected, and yet both diverted tolls to the
extent of travel over them. NothiOff i* more
&tn than that they have no property in the
vel, or any line of travel; for If tney had,
these diversionj from their line would bt ag-
greealona upon tbeir rights. There csumot be a
property in what one neither Iiaa in poaaeaaion,
nor any ri^t to reduoe to noasesalon. Tlui
Elalntiffa can oompel no one to go over tbeii
ridge.
The injury, therefore, which the plalatiffi
■ustain, if any. is because the defendants luive
eotne within the limits of their franchise, and
erected a bridge, and caused a diversion of
toll, which, under theae circnmatancea, must
b« naJawfuL
Onr answer to this is, that they have utterly
Called to establish any auch exemalve right or
title, aa the Act of 1786 givea no eountenanee
to it; and they are forbid making auoh an un-
necessary and unnatural implication of right.
of the case of Calleiuler v. Marah,
But
the prindplt
I, inl Pick«
th^ exalnilve right, and thus becomea unlaw-
fully iujnrioua; how ia the eaae brought wltbln
the juriadiction of this eoort I
I repeat, the plalntiSa must show a violation
of the Conrtltntion of the United SUtee before
they can make thia Juriadletloa attach.
They allege that the Adt of 1828, being an
act of the State, impairs the obligation of a
eontract, and therein violate* the Constitution
vf the United States, beeauae It forbida the
making of such a law.
But what contract doea It Impair! What
obUgntion does it violate 1 I have heard much
discussion about the injuries austained by the
eaintilla In eonsequence of the Act of 1828;
it have they pointed out the contract, or the
obligation of a contract, which has been vio-
UUdT If so, where Is ItT The contract. If
ftlO*] any, is the Aet *of 178G. It Is a con-
tract with the SUte itseir; but thU In no re-
spect ohanfea the character of the ease, for the
Constitution ia no more applicable to a contract
with the SUU than to aaj other contract.
What baa the SUte undertaken to do which It
haa refuaed to doT What haa it agreed not to
do which it haa done? I hope the court will
look into the aet and see if they can And any
Sroviaion there which has been violated. The
tate authoriied the erection and continuance
of a bridge, and the right to take toll during
the period of seventy yeaia. It haa not revoked,
annulled, or altered, any of these powers. It
haa not disturbed their possession or right to
take toll. It has not altered a letter of the act.
But it is urged that the State has authoriivd
the erection of a bridge which greatly dimiii'
isfaes the tolls, and this is true; and the ques-
tion here is, did she agree not to do it, in and
by the acts of 1T8S or 1T92T If so, point out
the agreement. The Stale, it Is admitted on all
1i«ii!'. has an undoubted right to make new
brul||ea, even if they do deatroy the franchises
of other bridge*; but when ahe takes property
for public use, she must oompenaate for the
damage. And where arises the obligation to
do tUal Not In the Act of 1781} or 1792. but
in the bill of righta. Here lies the obligation,
and nowhere eUe. There u nothing In the Act
of 178S In regard to the duty of oompenaation.
The queation here ariaes, ia Uie bill of rights
a poll of the contract I If it la not, I hnmblj
oontend that this court cannot entertain juris*
diction, for Its Juriadiction readies only the
Constitution and law* of the UniUd States;
and this case cannot be brought under that
Conatitution, unless a contract can be shows
whkh ii impaired by the Act of 1828.
The laws and constitutions of the Statei ba-
long solely to the State courts to expound.
Jackson V. Lamphire, 8 Pet. 2S0.
The biU of righU ia [wt of the conatitution
of llaasaohusetts, and i* not, and cannot be
any part of a contract, unless ezpresaly mad*
•o by agreement. The laws of a State may b*
u*ed to expound and explain, but never to su-
auperaede or to vary a contract, Ogden T.
Saunders, 12 Wheat. 213. 8 Story'a Com. 249.
If thla provision of the bill of right* should
be added to the Act of 178S, it would both su-
persede and vary the eontiact from what It
The** principle* aeem to be settled beyond
qneetion. I conaider it also well settled tl^ •
contract with a State etanda on ground in no
respect differing from all other contracts; and
the Constitution of *the United States ['Sll
haa, in its provisions, no reference specially to
auch contract*. The State Is bound by ao
higher obligation to abstain tram violating its
own eontraota by law, and to abatain from vio-
'-"-g all other eontiaets. All dticens stand
he same footing In this lespeot, with the
I measure of redress, and the same extent
of rights.
If the bill of rights can be engrafted upon
this contract as a condition, because It was a
public law, of which all must take notice, when
the Act of 1785 was passed; then, for the same
reuon, it becomes a condition of every con-
tract; and whoever haa his property taken tor
public use, may appeal to this court, and It
would thus open Its jurisdiction to revise •
very extensive branch of jurisprudence, hither-
to considered aa exclusively belonging to the
Statea. Is the court prepared for thiaT Did
th* framers of the Conatitution anticipate in
•11
I CotTlT <* I
I UnnD SfAtM.
un
Win tb« tmblle be aatfiHed with HT Kot oalj
matter! of this kind will be brought here, but
msnj otli«r tliiDgB. Why may not one who
claima a right to vote in Massachusetts, aud ia
denied the privilege, claim that the obligation
of contract is impaired, for bis right resta on
th* Constitution? Whj may not all ofScen
•fliDSe qUHliti cat ions, prescribed by the Coosti-
tution, are drawn in question, and the rigbti
they claim denied to then, come here for re-
dress T Wby may not a Judge, who Is legis-
tated out of odice, by taking away bis salary,
appeal to this court T Sucfi a construction
would open an alarming jurisdiction, and make
this court preside over the constitution and
laws of the States as well as those of the Unit-
ed States; for this would be the result of
m.ikiiig the Constitution a part of contracts.
The road taws alone would take more than the
whole time of the court.
But I wilt not dwelt on this aspect of the
case, for this pretension has not been set up,
and I am sure the deciaiona of thia court are
decisive of the question.
What, then, becomes of the jurisdiction, even
admitting that the Act of 1828 did violate the
bill of rights! Is it not plain that no oontract
or obligation of a contract is impaired, and
therefore that the Constitution of the United
States does not reach the case!
The courts of Massachusetts have acted up-
on the matter, and whether for good or evil,
riglit nr wrong, their decision is final.
I might add. that where property is taken
for public U!ie, it is not taken under, or by
tiie of any contract, but in the necessary e
oiae of a great and essential element of so
612*] eigntv. It is a right 'that necessarily
rides over all property, and can never be ques
tioned. It is the duty of every government u
make compensation where it Is taken; and
Massachusetts han made what she deems ade'
quale and suitable provision by her fuoda-
mental law, and it is no part of the business of
this government to inquire into the sufficiency
or insufficiency of that provision, nor what ex-
position is put upon it by her courts. The
thing docs not lie in contract, but In public
law; and this court has never gone farther
than to declare private acts contracts. Public
acts, in tlie nature of things, cannot be con-
tracts, but a rule of action.
This ease, Uiercfore, bears little if any re-
semblance to Fletcher T. Peck, New Jersey t.
Wilson, Dartmobth College v. Woodward. In
all these cases, and all the others quoted, the
parties elfpctcd held rights under private acts,
which the States of Georgia, New Jersey, and
New Hampshire attempted, respectively, to re-
peal, after rights had vested- The question
raised in each case was. whether a State, where
it had conveyed property and rights to an In-
dividual, could annul its owi) act. If a State,
for example, conveys land to an individual,
nothing can Le more absurd than to suppose
it can annul ita title aqd resunu the Prop-
erty; for such grants are irrevocable. Bo,
also, in the case of Sturges v. Crown iqsbield, it
wae decided tliat if one promises to pfiy money
to another, a State cannot by law, release bin)
from his contract without payment. lu all
'.hew eaaea there is sl mauifeai impairing of Uw
' obligation of atmtraet, for the whole benefit li
taken away, and the contract abrogated.
But in thia case, it is admitted that ths
State has ■ right to take any property whatev-
er, for highways; and that the franchise ol
Charles Kiver Bridge ia as liable as any other
property to be seised for thia purpose. The
taking, therefore, for public use is no wrong.
U ia no violation of the Act of 178S, for It
has alwaya been held under that act, subject to
thia right. If it has been taken, therefore,
that aet la botb right and lawful; for it is
consistent with the eontract, instead of % \
breach of it. '
The only matter which can be complained
of, is that no compensation has been made.
This right to compensation doea not spring up '
under the contract, but is derived from publie
law. The bill of rights alone gives it; and on
that alone can the claim be sustained, if aua-
Ulned at all. Over that branch of law, I re-
peat, this court has *no jurisdiction, [*51t
and redress must be sought in the tribunals of
Massachusetts, and in no other place.
Such is the necessary result, if property haa
been taken. On this point, therefore, we dis-
cover no error which con be corrected here.
But the plaintitfs are in no worse condition,
and have no higher claim to indemnity, than a
large class of citizens who suffer by public im-
provements. Bail roads, perhaps, gunenlly
supersede the highways near then, and render
stages, wagons, and other proporty to a grott
extent less valuable. They frustrate the views
and lessen the income of all who depend on
the public travel for patronage and support.
The business of large communities, and the
value of real estate is seriously diminished, but
there could be no indemnity for such losses. It
is a mere misfortune, for such persons have no
right over, or interest in the public travel
which can be the subject of legal claim. The
public convenience demands such improve-
ments, and they are not to be obstructed from
be permitted, before I leave this sub-
ject, to declare distinctly that ft is no part at
my purpose to urge any change or modiiication
of the laws nor to advance the opinion that the
strong arm of the public may seize individual
property, and sacrifioc it to the public conven-
ience. I am aware that much has been said ol
this case, and that it baa been said there is no
ground for the defense to stand un, short of a
revolution of principles which will unsettle pri-
vate rights, and aubject them to public caprice.
1 am not unconscious of the dangers which sur-
round sueh doctrines, and I am equally sensible
to the folly of urging vested rights, as they are
denominated, to such extremes aa to make
them felt as grievous burdens and onerous in-
conveniences by the public. Many of the
feudal institutions which still have adinowl-
edged force in England have been Kpudiatcd
here, and I cannot think there is much wisdom
in attempting to engraft any of them upon our
institutions, beyond where they have been
distinctly reoognlzed to be the law of the land.
But while 1 tay this, I am fully imprvaaed
with the vital importance of giving steady, un-
oreasing protection to privnte rights. The great
elements u[ public liberty lie in the Arm protee-
Peter* I
isa>
Tbm Cbaius tana Buimik ?. Turn Wabkr Bttnot n u.
titleai UKMifttJon in tt free govern ment, Is to
obtun B Srm, unwaveriag protection of our
penona uid boneet earnings. If k government
fail* to do thit, it ia of little value; I
■CKrccly went it for an; other purpose.
txtj conaiite chieS; in fre«dom from orbitrerr
restraint and exactione, and no ooe can feel
514*] 'more eincerely enxiou* for the preeer-
vktion of these greet principles than I do. I
am fully sensible thSit the Constitution and the
ISiWe are the shield under which ne t«ke ehel-
ter. Tbej are our place of refuge — the sanctu-
ai7 to wnich we must cling, If we would pre-
serve public liberty. I am not, therefore, for
laying rude hands upon them — I am not for
toaring awa; these great barriers of rij^ht.
I wish it, therefore, to be dietinctij under-
stood liiat I place our caae within the pale of
the law, and invoke no violence in its aid. I
aak for no next principles or rules, but for a
(air and just evpoailiun of the laws; and this,
I know, is alt we shall obtain.
Our caae stands on what is called, by this
court, a sontract; and I only contend that this
eoatract, when construed by the rules of law,
■a I understand them, after careful research
and consideration, will sustain no such evclu-
siTo rights and privileges as the plaintiffs
claim. I see no greet coast itutional question
Involved in this matter; for It is not a matter
of eoDsCitutional law whether the Act of 1T8G
gives a wide, or a narrow franchise, but a
pie inquiry into the meaning of that act.
case involves nothing else. If I do not
take the weight of authority, I hsve shown
that in England such grants are strict!^ o
strued in favor of the public. This u '
rule in a grant of privileges and monopoli<
and I hope the public here is entitled to
favorable a consideration. All I ask is that
this rule shall be applied to the Act of 1'
It la due to public justice and public policy
that it should be. I can see no cbieclion to it,
while I do see much to object to in tlie op'
posite course. I have never bad but one opiu-
■on in this natter, and all investigation ha*
tended to strengthen it. Some may suffer by a
decision in favor of the defendants, and this I
regret; but it stTords no reason whatever for
establishing unsound rules of construction, or
for denying to ths public the accommodation of
a lawful way.
Mr. Webster, for the plaintitfs in error,"
stated that the question before the court was
one of a private right, and was to be deter-
mined by the fair cooatruction of a contract.
Much had been said to bring the chUms of
the plaintiffs in error into reproach. This
course of remark does not affect their right to
their property, if this court shall consider that
ftIS*] property has been 'taken from them
by proceedings which violate a contract, and
in a case where this court has a constitutional
rt^t to interpose for Its protection and res-
toration.
It Is said that the proprietors of Charles
River Bridge have been repaid for the advances
made by them in building the bridge. But this
1. The reoord
I diaappolnled In i
ether sMs, he coold have given 1
Mwe at laiga.
tli.«4.
ni
is not the question upon which the court kaa to
decide. It Is a question of contract; and If h U
BO, where is the necessity to inquire whether
the plaintiffs have laid out a million, or noth-
ing. If there was a contract, the question ia
not what was the amount of profit to be de-
rived from it, but what was its provisions,
however advantageous to those with whom it
was made. It is a contract for the annual re-
ceipt of tolls for a specified period of time;
and it is said the State, which by ita law
brought the company into exUtence, by allow-
ing these tolls, may break the contract, because
the amount of the tolls is large; and by a
tegtelative act, say that, for a portion of the
time granted, the contract shall not be in force!
The cose has been argued before; once in the
Superior Court of the State of Massachusetts,
and ones in this court: and without any disre-
speet to the counsel who argued it before the
present hearing. It has been exhibited on new
and enlarged grounds.
It has been said, in the argument, that the
right of emincot domain cannot be graal«d
away by a legislative act; and if granted, the
same may be resumed, against the express
terms of the grunt. The necessity of the ax-
istence of this right in a sovereign State has
been asserted to be shown by a reference to
many cases, as the grant of a right to construct
" ''■"■■■■''- which, if it i^ve an e.\ctasive right
ui uiu.«.iii(( all communications between two
places to a corporation or to an individual,
would operate to prevent the introduction of
improved modes of intercourse, as by railroads,
and thus lie most extensively in urious to tiie
interests, and stay, to a fatal e:
pcrity of the community.
The plaintiffs in urror deny this position.
They hold that the obligstion of a cotitract ia
complete; and that other means than by its
violation, may protect the interests of the com-
munity. Such a violation of a contrecl would
be fatal to the confidence of the governed in
those who govern, and would destroy the se-
curity of all properly, and all righta derived
under it.
The localities of the two bridges, the Charles
River Bridge and the Warren Uridge, are well
understood by the court. They accommodate
the same line of travel, and either of them fur-
nishes "all the convenience, and all ['ftH
the facilities the line of travel requires. That
one is sufficient is shown by the fact, which is
not denied, that since the Warren Bridge ho*
become free, ell travelers pass over it, and no
tolls are received by the proprietors of the
Charles River Bridge.
When the act authorizing the Warren Bridge
was passed, and the company was about to
erect the bridge, the plaintiffs applied to the
Superior Court of Maesachusetta for an injunc-
tion to prevent the work going on. This waa
refused, on grounds that nothing had been done
by the company which presented the question
of the unconstitutionality of the law. Before
the Warren Bridge was in the actual receipt of
toils, the bill now before the court was filed;
ards a supplemental bill (tho pro-
the Warren Bridge being in tha
ipt of tolls) cloJmiBg that the char-
.1. . .^ r.^''*^ "*** '" * violation of
the contract of the State, with the propriettm
• II
prietors
ter under
HI
SUFBEME COUBI 0
ef the Cbarlea River Bridge, and wat therefore
^ainit the ConititutioD of the United StatM.
The COM [■ now before this court on thi* que*-
Uon.
It la laid that Boston has many of each
bridges ai tlint constructed bj the plaiDtiSe.
Tbla must necesBBrilj be bo. Boston U an ex-
ception in the ocean. She is almost surrounded
hf the nater* of the sea, and is approached
«¥erjwhere, but in one part, by a bridge. It
U said that those numerous bridges have given
rise to no litigation. This it so, but the Juat
Inference is that hy no one of these has a right
been interfered with. In fact, in all the caeea
where rival bridges, or brides affecting prior
rights have been put up, It is understo«l that
there have been agreements with thuse who were
or might be aaected b; them. This was the
ease with West Boston Bridge. It was pur-
chased b; those who sought to make a free
bridge which would interfere with it.
It lias been said, in argument, that the ferry
franchise, which was t)ie property of Harvard
College, was seized by the Legislature when
they authorized the erection of the Charles
BiTer Bridge. But this was not so. A com-
pensation was allowed for the use of the fran-
ebtte or Ita interruption, and no abjection waa
ever made to it by that institution. The just
inference Is that a previous agreement had been
mada with the college, and that the sum an-
nually paid by the proprietors of Charles Eiver
Bridge was entirely iatiafactory to that eor-
poratioq.
Mr. Webster then went into ait exammation
SI'*] of the circumstances 'which had attend-
ed the erection of other bridgis from tlie main
llind to Boston; and ho contended that in all
the oases, oompensalion had been made to those
who were injuriously affected by'th^m. in the
case of the Cambridge Bridge, the I^^ilslature.
In the act authorizing it, extended the charter
of the proprietors of the Charles River Bridge,
as a coDipcnsation for the erection of another
bridge. This was a oompensatian for the tolls
taken by diverting the line of travel. In none
of these cases was there an appeal to preroga-
tive, and to Its all -superseding powers.
The history of the Warren Bridge exhibits
an entirely different stat« of things. It was
undertaken on different principles, and under a
different temper. It began with a clamor about
monopoly! It was asserted that the public had
■ right to break up the monnpoty which was
held by the Charles River Bridge Company;
that they had a right to have a free bridge.
Applications were frequently made to the Leg-
lalature on those principles end for that pur-
Kse, during Bve years, without success; and
B hill authorldng the bridge, when it was
first passed by the Legislature of Mossachu-
setla, was rejected by the veto of the governor.
When the charter was actually granted. It
passed the Legislature by a majority of aa
many members as there were hundreds in the
body.
If It had not t>een for the provision in the
Constitution of the United States, under *hich
Uie plaintiffs now ask for the protecLion of this
oourt, it la believed the law would not have
been enacted. Members of the Legislature con-
tented to the law on the ground that if it inter-
fared with obartered rights, this court would
wt it Mid*. The argument was that if the law
■ t*
k Uvtm Scam.
is said, take carel You are treading on burn-
ing embers! Vou are asking to interfere with
the rights of the State to make railroads, nnd
modern improvements, which fupersede thuM
of past times by their superiority! Yon pra-
vent the progress of improvements, etsentiml ts
the prosperity of the eonununityl
It would then appear th»t the exlatenoa <C
the provision of the Constitution of the Unltad
States which this court is now called upon 1j
apply, has been the whole cause of the injury
done to the plaintiffs, by the pesaage of the lav
authorizing the Warren Brld^ But (or tha
belief that the rights of plaintiffs would ba
restored by the appeal to that provision, tha
law would not have existwL
'The learned gentleman who lint [*&!•
argued the case for the defendants, went Uia
whole length of asserting the power of tha
Legislature to take away the grant, witbont
making compensation. The other gentleman
asks if the plaintiffs are not yet satisfied witk
exactions on the public. What are ezactlanat
They are something unjust. The plaintiffs hava
taken tolls for passing the bridge; but thia
they had a right to do by their charter.
It is said the tolls were oppressive; but ia II
oppression, when the right was riven by tha
cUarter to take them aa the stipulated incoma
for capital laid out under the charter? It ia
said that the public are on one side, and tha
plaintiffs are on the other; that if the case ia
decided one way, a thousand hands will ba
raised, to one, should the decision be different;
but this is not correct. The public sentiment
in this case, is not on one aide. It is not with
the defendants. The representatives of Bost(M
never voted for the Warren Bridgs. Thi-y
thought there were existing vested righta,
which ought not to be disregarded. The city
of Boston would have purchased the right «(
the Charles River Bridge, if they had be^
asked. The property, or stock in the bridge,
was dispersed through the community; it was
not a monopoly.
The honor of Massachusetts will stand un-
blemished in this controversy. The plaintiffs
impute no dishonor to her, or to her Legia-
lature. Maisacbusetts only wants to know il
the law in favor of the Warren Bridge has in-
fringed upon the vested rights of the plaintiffs;
and if this is so, she will promptly make com-
pensation.
The plaintiffs say the act authorizing the
Warren Bridge has violated the Constitution of
the United States; and if this court shall to
declare, tbe State of Massachusetts will do full
justice to those who have been injured by hw
authority.
The counsel for the defendants have said that
the plaintiffs have sustained no toss but that of
their golden prospects. They have last all their
property; a property worth three hundred
thousand dollars before the new bridge waa
built, and now not worth thirty dollars.
The rights of tha plaintiffs are no monopoly.
They are the enjoyments of the property for
which they had paid in advance: end whii^
b^ a contract made by tbe law, \.hey were en-
titled to enjoy for twenty yeai* yet to coma^
Thk Ciusub Bxm Buoai *. Tbr Waukh Buimib ■
Ut
Tb«7 an called npkcioua monopolUti, when
they elftint to hold wbit they have purchued.
ThoBc who b«.?e awalled tliu property, bare
filB*] taken it from tbern; Lave 'tiJcen all
from them without eompeiuatlon. Where, and
with wham U the lapacity to bo found in tlie
traaMwtionT
The pioTisioai of the law of MkSBachuMtta
against monopolies, ar« taken from the English
•tatntei of Jamet I. Thej were so taken, for
it follow! that itatutfl In terms, and oaDtains
th« aaine oxceptioiu in teror of nieful IbTett-
tiona. Thus the Masaaohnaetti law la the same
with that of England, which has never been
eonridered aa axteniling to luch casei aa tbii
b«fon the court. The language of the law U
"monopoliea;" but thii li a "franehiae," and
not a monopoly J and thus the clamor which
wsa raised baa no application to the property
•( the plaintiffs in error. It Is unjust and with-
•at application.
The record preaenta the only questions in the
«ue. What are they I
The orif^nal bill was Hied In 1828, and aftor
the answer of the defeudanta was pvt in, the
amended bill was filed only to put in Uaue
tlM questions of law and fact, presented In the
MMnal biU.
Tin courts of Uassaehusetts proceeded In
thia case according to the equity rule of this
court) and this eaae ia fully exhibited, so that
the whole of the iaaues of law can be decided
her*.
The original bill founded the rights of the
•UinUfTi;
lit. On the Act of the Legislatore of Massa-
ehnsetts of ITSB.
2d. On tbe purchase, by the plalntiffa of the
ferry right, which had belonged to Harvard
College.
3d. On the eonsideration paid for the charter
to build the bridge, and the prolongation of the
•harter for twenty years, by tbe Act of 1792.
The plaintiffa sav the act for the erection of
Warren Bridge Tiolates tbe Constitution of tbe
United SUtM, and that the act Ukes the
""c use, with-
They rest
Mk tbeir eharter.
The defendants. Id their answer, do not say
the property has been taken for public use, but
they rest on their charter; and they say that
the Legislatnre had a right to pase tbe act, as
It docs not Infringe the property of the com-
K.
Thia preaeats the queation, whether the Con-
Mitutlon of the United SUtes is Tiolated.
There Is no other issue loade on this record.
Thia state of the pleadings excludes much of
the matter which has been jmsentcd by tbe
Monsel for the defendants. They do not -"
•ent the Question of eminent dom^n.
tSO'l ptalntlfrs might have 'presented that
quMtkm in the court of Uassaehusetts. Tbey
nl^t have said that their property was taken
Vj the law, for pnblie use, ana was taken un-
ter the right of eminent domain. Thia would
have been a Massachusetts question, and one
wUeh eosld not bare been braugbt before this
' It Is admitted that If the Legislature of
lehnsetts takes private property for pub-
Be Mc, under the power of eminent domain,
ttis eonrt cannot take cognisance of tbe case.
If the cast had beaa so put before tbe SiiMriar
Court of Maaiacbusetta, that eonrt eonld have
decided that the eomptalnants were entitled to
oampcDEstion, and tliat the defendants were
bound to make it.
It is the law of this court that the parties
must be confined to tbe questions on the rec-
ord. The only issue here is the questjoa
whether the defendants have Infringed the
rights of the plsintifis, and have violated the
Constitution of tbe United States.
While this case was in progress through Uw
courts of Massachusetts, and depending In this
court. It appeared that one half of the tolls of
tbe plaintiffs' bridge was taken away. Now
the whole tolls arc gone! This baa occurred
since tbe Warren Bridge has become a free
Tbe Legislature of Massachusetts have given
to the pleintiffa the right to the franchise of K
bridge at Charlestown; and the question is,
whether thia is such a right as that It can ttt
violated or infringed T Tbe franchise is a thing
which lies In grant, and ia, therefore, a eon-
tract; and if, by the eharter to tbe Warren
Bridge, It has been infringed, it comes within
tbe prohibition of tbe Conatitutlon retativa to
contracta. The question is, whether the plain-
tiffs bad such a francbisel This is the only
question in the record.
A pralimlnaxy objection to the right of this
court to proceed In this case, has been made,
on tbe suggestion that tbe case Is one against
the State of Massachusetts j as tlte State of
Massachusetts is now the only pwty interested
In tbe cause, the bridge having become her
property; and it is said, against Uie State, this
court can grant no relief. A State cannot be
brought into this court, in asolt by Individuals,
The State is not a party to the sause. The
bill is against the persons who built tbe War-
ren Bridge, and it is from them relief is sought,
and required; and those persons stand as tres-
passers, if the law under which they acted Is
unconstitutional. But after a suit is Iswfully
conunenced, it goes on against all who after-
wards make 'themselves parties to it. ['fill
There is no effect on tbe n^ts of the plaintiffs
by a change of this kind, as a wron^-doer can-
not excuse himself by parting with his property.
The plaintiffs ask a decree against the pro-
prietors of the Warren Bridge, John Skinnsr
and others, and a decree is asked against no
others. The Question which is raised by the
obj'c:t:cn to tte jurisdiction of this court in
this case, is, whether the court can proceed in a
case in which a State has an interest! This
cannot be asserted with success. If such were
the law, the exclusion of jurisdiction would
extend to all cases of lands granted by the
United States; for in cases of such grants, if
no title baa been given, the United States are
bound td make compensation. Such a doc-
trine would overrule the Judicial structure of
tbe government, and prevent the administra-
tion of its rnost Important functions.
This question has been decided in thia court
in tbe case of Osbom v. Tbe Bank of the Unit-
ed Slates, 9 Wheat. 657; 6 Peters's Condensed
Reports, 768.
This is precisely the same question with that
in the case referred to. The SUte of Ohio
claimed tbe money In the hands of Osbora, as
a tax. on tb* funds of the Bank of tbe Unkcd
«49
SuFutHB CouBT or THi Umitbi Btath.
Stktaa, ImpoHd bj ui ut of the LegiiUtur* of
Uia State. The State of Masiat^huaette elsim
tfc* tolli of the bridge, derived Irom s Uw of
the Btete. This court, ia the eau cited, toe-
PMmIj declare it to be one in which the State
la a party. So in Fletcher t. Pecl^, where
QeoTCia had declared a deed given b; the State
tor Unds, void; but the pirtieB to the caae
were those on the record, although the dedaioa
directlv vacated the proceeding! of the Legiata-
tnre of Georgia, jet the court had juriidiction.
In this caae, no judgment will be pronounced
•nlnat the State of Masaachu setts. On theae
plaadiDga, if the cosstitutionai question were
out of the case, could any action of the court
■ffect the State t She is, in fact, no party in
this cause. She cannot be a party to dIow up
a rait, and not be lubieeted to Ita final result.
Supposa « State ahould coin money, Congress
would not prohibit its being done. It ia pro-
hibited by the ConatitutloD ; and a lew could
Dot do more. Could the law be cairied into
elTectl Proceedings under it would be brought
before this court, by an action against the
agente of tbe State, or by a suit against the
party iasuing it, or making a contract for the
money so coined. If you cannot, by a suit
against an individual, question the unconstitu-
tional acta of a party, the whole of tbe powers
ft22*] *of the Qinstitution. upon its great and
vital provisions for the preservation of the
government are defeated.
It has been said the court can do no justice
to the parties who have souglit its protection,
because the Superior Court of Massachusetts
has only a limited jurisdiction in cases of
It is admitted that the equity Jurisdiction of
the rourts of MasBacbusetU is limited; but it
has all the juriidiction over the subject, to
wbicti its powers extend, as any other court of
equity. The law of Massachueette gives full
equity powers to the court, in all cases which
are made subject to its jurisdiction. 0 Pick-
ering's Rep. 396. The law of 1827 gave this
juriediction in all caaee of waste and nuisance.
This bill prays for a general relief. This
wurt may abate the nuisance, and decree a re-
payment of the tolls; snd do all in tbe cose
that, according to law and equity, may apper-
tain to it. In equity, a court may enjoin
against the nuisance, and d«crei' a cooipensation.
But all this dinctiBsion about the power of
the court of Massachusetts to make a suitable
decree, has no place here. This court can, in
tUeir decree, declare whether the Act of 183a
does impair the contract of 178a. This is all
the court can do; and it is nothing to them
what will be done in the case, by the court to
which the case will be remanded. In conform-
ity with the provisions of tbe Judiciary Act of
ITS9, this court remands a case when further
proceed ings are necessary in the court from
which it may have been brought; when noth-
ing else is required in that conrt, this court
will give a final judgment.
In this case, the court are hound down by
the record to the single question of tbe validity
of the law, under which the defendants acted.
To proceed to the main questions in the
eaose:
1. The plaintiffs claim to set up a bridge, ex-
•luaivoly, Iwtween Boston and Charlastowni
• 14
or, if they an not mtHled to tUa, ttwy dala
to put down all snch other bridges as intuien
wltli the proftta and enjoymenta of their priT-
ilwes.
It ia not contended that the termini hiclndo
or exclude all within the place. Every peraon
must keep so far off as not t« do a direct mla-
ohief to tbe plaintifTs' rights. The plaintiffs
•ay tliat the ferry right gave tliem tne privi-
lege of excluding rivals. That by the cliart«T,
tMj have a franchise which gives them righte
which cannot be violated by Ue proceedingn of
a subsequent Legislature.
*It is in vain to attempt to derive [*B1S
anything from the ferry right, if it is wiiat tlM
defendants say it is. They say that a ferrj ia
a path over a river; and that the English law
relating to ferries never was in force in Massa-
chusetts. This position is denied by the plain-
tiffs. In support of this assertion, they givo a
Iiead roll of ferries, which tiave been talcaa
away; and bridges built where they before ex-
isted. This is statement.
The law of Massachusetta has always t>een
the common law of England. Is there any
authority for the contrary, in any of the de-
cisions of her courUt There may be such
Danes — taught other dootrineT nki the c
trary been sustained by these men; by their
opinions! In the case referred to by the eoun-
•el for the defendants, a distinguished latryef
of Massachusetts allowed a ferry right accord-
ing to the common law of England. Every
judge in Alaasachusette has held a ferry right
to be an indefeasible inheritance; a vested
right, like any other property. Let us see if
this is not the fact.
But before this is done, a reference will Im
made te acts in the early history of Massa-
chusetta which are on tlie record.
There is a grant of a ferry for twenty-<me
"At general! corte held at Boston, 7th day of
8th month, 164i, It is ordered, that they, that
put boats between Cape Ann and Annisquam,
shell have liberty to take suflicient toale, as
tbe court shall think mecte."
Is this the grant merely of a path across tbe
riverT So, alFO, there is a grant of an Inherit-
ance in a ferry, on condition that it shall l>e
submitted to the General Court. Tbia grant it
cotemporaneoua with the grant of tbe ferry
over Charies River.
"At a general corte of election at Boston
the lOth of the 3d month. A. D. 1648.
"Upon certain information given to this gen-
erall corU, that there is no fferry kept upon
Naponset ryvcr, between Dorcheater and
Braintree, whereby all that are to pass that
way, are forced to head the river, to the great
prejudice of townes that are in those partes,
and that there appears no man that will keep*
it, unlease he be accommodated with house,
land, and a boats, at the charge of the eosB-
try: It is therefore ordered, by the authwity
of this corte, that Mr. John Glover shall, and
hereby liath, full power given him, either U>
grant it to any pcreon or pcnmns, for the
tearme of seovcn yeares, •so it be not f*5H
any way chargeable to the country, or elaa to
Ifet;
Tua CBABi-n RivcB BuDoa v. Thb Wauum Btntas et al
tftke H himaelfe and bts heires. i,a faia own I
brritknc^ (arevrr; provided tli«t it be kept
Mich ■ plBl^e, and at t>uch ■ pricF, as may be
mint convpnienl for the countr]', M,nd pleaaant
lo tlie general rOUrt«."
In the record there is a copy of a grant of a
bridge over Chartee River, near WatRrtowii;
the terms of which are, on the condition of
making [tie bridge, the tolls are granted for-
evrr. This «■■ in 1670.
This is the earl; ttatute taw ot Massachu-
setts. The later acta of the Leglolatnre are of
the same character. The instances of such leg-
ialaton wprp cited from 7 Pick. Rep. 446, 447,
448. 511, 621, 623. In all these <^aBei, the judges
hold the common law of England as to femes
to be the law of Masnach usetts, and tbttt a
t«TTy is an indefeasible interest, and a fran'
ehise and property,
Mr. Webster then stated a nnmber of caoet.
!■ which, when a bridge had been erected lo
the place of an existing ferry, eompensatlon
had been made to the owners of the ferry. He
tnsisted that upon these authorities a ferry
waa as much a property, as much the object of
legal protpction, as anything known '
of the land.
The plaintilTB obtained their property as a
purchsse of some extent up and down the river.
It is not required now to determine how far the
purchase extended; for the rival bridge erected
by the defendants, is alongside of the Charles
River Bridge, and is an intemiptioii to the
profits derived from it. It is not necessary now
to fix the limits of the franchise. That the in-
terference Is direct and certain Is not denied.
Difficultiea may arise hereafter in fixing these
limita, but it is not necessary to go to a dis-
tanee to establish them, before a certain and
adrnitted interference shall be examined.
It is submitted that in Ijindon do bridge has
been erected over the river without compensa-
tion having been made to those whose interests
may have been injured. The evidence of this
will be found in many works on the subject.
Those treatises show the minute attention of
the British Parliament In all cases in which
private rights tnay be atTected by the enact-
roent of a statute. All persons who may be in-
terested, have notice from Parliament of th»
application, and oompeosatii i is made where
any injury It done.
It Ib said that the distinguished honor of
maintaining principles which will arrest tha
pnKTMs of public improvements, is left to the
plafntifrs In thU cbk. This Is not so. AU
that is asked, ia, that the franchise shall be
protected. Massachuaetta has not made any
5SB*] improvement *of her own, although she
hu aubscHbed liberally to those which have
been undertaken by individuals and corpora -
tknu. In all theae cises, private righta have
twan reapectfld; and except in the case now
b«fore the ooort, Haasacbusetta baa kept her
fkitb. Recent and prevtons acta by her Legia-
1atiir« show this. In every case but this, com-
paaaation haa bam made in the law, or pro-
rided for.
The plalnttffs do not seek to interrupt the
progress of improvements, hut they ask to
stay rsvolatioD; a revolution against the
foundations on which property rests; a revolu-
tloB wbidi is attempted on the allegatiao of
lative acts which have vestad righta In In-
dividuals on principles of equal justice to the
State, and to those who hold those rights un-
der the proviaions of the law.
It it true that before the Legialature the
rigbta of the plaintiffs were examined, and still
the Warren Bridge charter was given; but the
decision of a committee of the Legislature was
not a judicial action. The plaiotifTs have a
full right to come before this court, notwlth'
standing their failure before the Legiatatnra.
In reply to some remarks of the counsel of
the defendants, Ur. Webster stated that the
proceedings in Englcnd under writs of ad quod
damnum, did not affect private rights. The
writ of ad quod damnum issued for the honor
of the king. It issues before a grant is made,
and for the protection of the king. Private
persona may claim the protection of the law in
favor of their rights, notwithstanding atich a
proceeding. Queationa of nuisance are always
questions of fact, and must be tried by a jury]
but no jury can assess the amount of injury
until the facts are ascertained. These prlaoi-
ptes arc sustained in 3 Black. Com. 219.
Is it the liberal construction of charters to
interpret them against the rights of indi-
viduals, against the enactments of the law I
The course baa been to construe tbetn In favor
of the grantees, and to enlarge their provisions
for his benefit. The whole of the course is
changed, if an opposite principle is ad^ipted.
Ilut the plaintiffs ask no more than a fair ju-
dicial construction ot the law; no more is re-
quired hut what they are entitled to, under a
judicial interpretation of it.
It has been said, in the argument for the de-
fendants, that although the bolder of a fran-
chise may maintain an action against a
stranger who interferes with it, without a li-
cense; he may not against one who has a
license from the State. This is without author-
ity. If he 'can claim against a stranger, [*0I6
it Is because of his property in the franchise,
and tbia will protect him in proceeding against
anyone. This right is complete against alt, and
the State can give no privilege to interfere
with it.
In the case of Bonaparte v. The Camden and
Amboy Railroad Company, Mr. Justice Bald-
win, sitting in the Circuit Court of New Jer-
sey, says!
'The privilege of exemption of the principal
Is not communicated to the agent, though the
Srinclpal is a State which cannot be sned at
iw or in equity; and the agent, a public offleer
acting in axccution of the law of the State, and
the subject matter of the suit was money au-
tually In their treasury, in the custody of the
defendant for the use of the State." 1 Bald.
Rep. 217,
The proprietors of the Charles River Bridge
purchased the ferry franchise from Harvard
College, and it became their property for tlie
purpose of erecting a bridge upon Its site, with
sit the rights and advantages to be derive!
from it. it was purchased, and the considera-
tion for It waa the annual payment of the sum
of two hundred pounds. This, by the charter,
waa to be sbaolulely paid; and no acndent to
the bridge, no deficiency of tolls, will exeuse
the nonpayment of the aum so stipulated to
1^-... o^
SupuiM CouBT or tax Ukitkb StAnt.
kAd bMn profitable to hm the ferry, would not
tlM toll* Mve belonged to the proprietors of
the Chftrlea River Bridal There ii no ground
to aoppoK the college mpsnt to retain Bnythins
•mt of the franchiae. Nothing appears wbich
will authorize the supposition that tlie Stste
meADt to take a transfer of the franchise, or
any part of it, and allowed the uie of it to the
kridge, to the extent of putting up the abut-
ments, at the places where the ferry was car-
ried on. The bridge is the successor of the
eoUage in the franchise) the oompany pnr-
ebawd it, to its full extent, and the BtaU, by
the ebftrter, ratified the purchase.
The erection of the bridge was an undertalc-
log of great haEsrd, and the result of the effort
t« oonstniet it was considered ezceedinglj
doubtful. It cannot, therefore, be euppos^
tliat the franchise was to be diminished, and
Its enjoyment to be limited. Nothing of this
la expreued, and nothing m unreaaon»b1e can
be Implied. It is In endence, on the record,
tbftt the college was » p«rty to the building
of the bridge. The president stated that the
oollege had assented to it. According to the
•ouTse of decisions in Massachusetts, the fran-
chise was an indefeasible inheritance. In that
511*] State, the management *of ferries was
with the general court. M to this franchise,
from 1640 to 178S, it was respected by the
loc«1 authorities of Middlesex and Sussex. It
would then appear that it was held under »
legislative grant, which transcended all other
ri^ts.
The f
B francbiie which was obtained from the
college was not extinguished by compact, and
It cannot, therefore, be disturbed by any action
of the Legislature.
It is deemed important, and is the truth of
the case, to consider the rights of the Charles
RiTer Bridge Company, in connection with
those of the college. The college had, and
■till Yutve, an interest in it; and the use of the
franchise by the company, is essential to all the
fiurpoaes, and to more than those for which
t was held by the college. The pontage fur-
nished by the oridge was the substitute for the
pBBsaoe by the ferry; and it was not, therefore,
only for location at the place where the bridge
waa built, that tbe rights of the college were
obtained. All tbe privileges enjoyed ia *PBit
of the ferry francbise were acquired. When
the bildge was put up on the same place aa the
ferry had been, and for all the ends of the
ferry, it ia but just and reasonable that the ex-
tent of the right shall be io the hands of the
Bridge Compsny, equal to that which it was
when held by the college.
The views which have been token fully show
that the State of Massachusetts made. In the
Inll and rightful exercise of her legislative
powers, a grant to the proprietors of the
Charles Elver Bridge, and the grant was a con-
tr*Dt. As such, by no subsequent legislation,
eonld it be impaired: a right vested, cannot be
dOTCsled. Cited. 2 Dall. 297, 304} B Oanch,
K; Qreeu r. Biddle, S Wheat. I; Fletoher t.
Peck, S Craneb, 13B.
If a power of revocation existed, it was no
oontract. The Btate cannot make such > eiHi-
tract, aa the power of revocation is inoompetent
to vrill the existence of a contract.
Can a stronger case be imagined than that
which save rise to the controveraT In Tletehar >Dod law
r. Peekt The contract had t>eel made Ii
fraud; in morals. It was just to bum It; la
policy it wsi equally ao, as a large part of the
domain of the State of Georgia waa granted
for no adequate consideration. Bnt this court
decided io that case that the Legislature of
Georgia bad no power to annul the grant, and
the giant was maintained by the judgmeit of
this court.
The difficulty In which this case is Involved,
and upon whldi the defendants expect •access,
arises from considering two tbiagt alike which
are different. The power of making public
grants, because *tb« interest of the [*61B
community requires they should be made, and
the right of eminent domain.
Where property is taken for public pnrpoMa,
compensation is given; this Is the exerciae of
eminent domain. The Legislature are not the
had the power which haa been exercised in this
particular case.
By the act of tha Le^slatnre authorlxiDg
the Warren Bridge, two injuriea were done to
the plaintiffs. First, by the damage they sus-
tained from a rival bridge. Second, the ia-
fringemcnt of their right of pontage. The toll
had been originally granted for forty years,
and this excluded rivalship. By the interrop-
tiou of the receipt of their full tolls, the pro-
prietors of the bridge suatained heavy losses;
and by the erection of the Warren Bridge, now
a free bridge, their beneficial right of pontage
has been destroyed. In these, have the con-
tract of the State <rf Massachusetts been
broken. Thus the ease ia entirely within the
provision of the Constitutioli of the United
States.
Wliat is the meaning of the assertion that
in a grant by a government nothing passes by
implication t How is it in grants of landt
Does a patent from the United States carry
The principle that nothing passes by Implio-
tion, arose in early times, when the grants of
the crown were greater than now) when they
were made to favorites, and the power was
abused, and when their extravagance induced
courts to restrain them to their words. Henoo
the insertion of mero motu certa scientia.
Hence the principle that the grant of one thing
shall not carry another. The doctrine that
nothing can be carried by implication in a royaj
grant, does not apply to grants by Parliament,
or of franchises (2 H. Bt. 5O0) ; no case but ona
from 2 Barnwell k Aldereon's Re^rts, T92,
has been cited to sustain the position. That
case IB not authority here. But if the whole of
that ease is taken together, it is in favor of the
plaintiffs in this cause. The decision ia right,
although there is too much strictness in aomc
of the opinions of Lord Tenterdeo.
Franchises are complex in their nature, and
1 that may be necesaary for their enjoymeKt
nst pass with them, although things aeparato
I not pass; whatever Is incident to them, doM
not require implication to pass such ineidenta.
■" s the gr--' -' "^- ' — "^- '■ "-—
right t
Nott A H'Cord, S9S.
''It haa been said that thia may ba f*llt
id Uw aa to individuals, hat that it will no*
Thk Cbaaldi Bns» Bjudob t. Thb Wakuck Budoe rr ai.
McntU fa the eu« of ft State— «nUiorilIet for
tbia poaition Kre required. If » grantee of k
fnncblH can euatviL en BCtion against An in-
dtTidu«l, for an injur/ to hi* property, or an
ijttwfemice with hu propert/, why may he not
againat the grantee of the goTemment, who
thna tnterpoaeal The eaae ia atrongar against
the goTenuoent than againat a atranger. The
foTeimnwDt kaa received the eonaideration for
the grant, and there ia an implied obligation
to pnitMt the •njD}>ment of it,
rerriee are property. They may be aeiced
for rent; tiwy may be deviaed by witlj thty
May be sold; and yet It is said the government
■ajr tttka them away from their proprietors,
for their giantora. Let ua aea some principle
which will allow such property to lie taken,
and which yet regarda private property, and
reapecta private rigbta and public faith.
Tba ririit of a ferry carries tolls, aad it alao
carries, for Ita protection, the principlea of jus-
tica and of law, that the grantee may keep
down injurioui competition. It ia vain to give
him one, without the ether. Both must be giv-
en, or none ia given. The grant is intended aa
a benefit, aa a remuneration for risks, and for
advances of capital, not as a mere name. The
ordinary means of eompenaation for aueh ad-
vancea are not aufBcient. Tlw franchiae neces-
aarily impliea exclusive and beneOdal privi-
It was under thia law of ferriea the plaintiffs
took their charter. They eonaidered tliat under
It tkey held the whole extent of the ferry fran-
tkiae. There was thai but one ferry between
Oiarleatown and Boston. It bad the whole
ferry rights, and this they acquired; this they
have paid for. If a grant refers to another
Eint, it carries all whkh ia contained in both,
t aiippose tbere had been no reference to any
other; it wonld earry the same rights, and to
the same extent, or more. The expense of
erecting a bridge and keeping it in order, is
much greater than that stteniling the setting
■p and keeping in order a ferry.
The promotion of public accommodation is
BO reason for taking away a privilege held un-
der a legal grant. It cannot be done unjustly
in the rights of others. These rights must b«
■«speeted. The ineoms derived from these
ilgiita shall not be diminished- Suppose the
bridge bad been erected without an act of the
Legislature to anthorise it, would a aubaequent
■et protect it I How can a grant to A be law-
wlth the en;;ayment of the prior grant I Once
granted, alwa^ granted.
What position would a judicEal tribunal as-
mune that would construe a grant differently,
■coording to the parties to it. Can you raise
■a iaiplimton against it, and not do so against
the govenmentl Implication is ooostruction —
eonalmetfon ia measii^ — and when a thing b
la the deed. It is the meaning, and force, and
pvrpM* of the Instrument. U the parties are
changed, these cannot be changed. To allow
tka toOaof
Isa to be bnilt, was to take away
the first bridge. In support of tlie
that this was a violation of the rights
binding on It, and cannot be Impaired; and
they say that, to whatever extent the grant
goea, it must be supported. Z Mass. Kep.
146. But the Warren Bridge does impair the
charter, for it takes away the tolls. What,
then, becomes of the reserved rights of the
Legislature! This is a solemn adjudication ol
the court of Massachusetts, Then there is no
reservation.
Tbere ia implication in government grant*.
This has been so held in Uassachiiaetts. t
Mass. Rep. S2Z. It ia also the law of tUa
Court. Dartmouth College caae, 4 Coad. Rep.
649.
The court below held, in this case, that what-
ever was granted belonged to the grantee; that
the ferry at Cliarlestown was granted to the
college, and (lint the law of England relating
to ferries prevails in MasBaohuaettsi that noth-
ing can be taken for public uae without com-
penaationj that public grants are always to be
so construed, aa to convey what is essential to
the enjoyment of the thing granted, and cannot
be superseded, or the grant impaired. In sup-
port of these positions, Mr. Webster teadparls
of the opinions of the judges of the Superior
Court of Massachueetts, delivered in this case.
The proposition ia stated that grants of the
•haracter of this which ia held by the plaintiffs
contain a power of revocation. Thia cannot be.
Being grants, they cannot be treated or consid-
ered aa mere laws; being granta, they are con-
tracts. In this case, the grgnt was intended to
be beneficial to the grantees, and it contained
a covenant that it ahould continue for forty,
and afterwarda for seventy yaara. Por this a
consideration was paid, and is now paid-^to
the public, by the large e>:penditure for con-
structing the bridge; to Harvard College by the
sum of two hundred pounds annually. But the
Legislature 'have now done everything [*SS1
to make the grant unproductive; to deprive the
boldera of all advantage from it.
Necessarily, the grant to the proprietors of
the Charles River Bridge contained a guaranty
of their enjoyment of the privllegee containMl
in it. Any other construction would be against
every principle upon which the rights of prop-
erty, derived from public acta, rests. Suppose,
after the grant of a ferry, with a ri^ht to take
tolle, and the establishment of it by the
grantee, at the expense of boata, a free ferry
bad been erected at the same place, or so eon-
tiguous as to destroy the profits of the first
ferry by a ruinous competition; would thia be
proper! It fa said that atill the right to lAke
tolls remaina in the first franchise. This la
true; and it Is then ini^uired, what injury haa
been done! No franchise, it is said, is tak«n
away: all the rights granted remain; the tolls
It ia true, the counsel for the defendants ad-
mit that all will pass over the free ferry; but
yet they say the toll dish of the first grantees
Is not touched by the hands of those who have
opened the free ferry — the notice of the rates
of tolls to be paid yet remains.
But to all this the plaintiffs oppose the sim>
keep down all competition, during the wbide
time of the charter.
Thia has been established by an unbrokaa
SopBna CocBT or tbk Uhitb) Statis.
:< a funchise, and every dollar of
tolF taken at the Warren Bridge aince ita eree-
Uoa, and the temporarj use as a toll bridee, la
• part of the legal and proper prafita of our
franchiae; and thiia the giiarantj, conTeyed in
Ent (aa gu&rantiea are interpreted bj the
aaaebuaetts courts) has been broken.
Mr. Webster then went into a further exami-
nation of the argument of the counael for the
defendanta, and into a notice of the obaerva-
tiona which had fallen from them in the de-
tenae.
The plaintitTe, it la aaid, hare received com-
pensation enough; their proflta have been al-
ready very large; they have had a reasonable
WDiponsation. This is not so. Nothing la rea-
aonablc but the fulfillment of the contract. It
Ii not reasonable that one party ahould judge
for tliemselvea, as to compensation, and depart
from the terma of the contract, which is dell-
nite and plain in its meaning.
There la no extinction, it IB argued, of the
franchise. The answer is that the act authoriz-
ing the second bridge expresaly extenda the
charter, adding thirty years to it, and recites
ftS9*] the conaideration 'the public had re-
cciyed for the aame. In this there is a guar-
anty that the State ahall pass no law to impair
the contract. It is not true that we can have
no property in the line of travel, if by that is
meant, in the franchise granted by Gov. Win-
throp and others, the right of tranaporting psa-
•engers from Boston to Charlestown. The
franchise is valuable, because the transporta-
tion was concentrated at the points at which
the plaintiffs' bridge was erected.
The construction of the grant to us, which
we demand, ft is said, is not valuable. The
plaintiffs say otherwise, and the Issue is with
this court.
It ia held up aa a cauae of alarm that the
plaintiffs claim a perpetual right to this fran-
chise, and that when the charter of their brld{^
has expired, they will fall back upon their
claim to the ferry. We do no auch thing.
When that time cornea, it become! the property
of the State again. Theira then it is, "King,
Cawdor, Oiamis, alll" And It were to have
been wished that the defendant* could have
been content to wait until that time had ar-
Tha analogies of the rights of a tavern, a
■treet, a mill, etc., have been put in the courae
of the argument for the defense. But all these
were false analogiea. They were not fran-
chiaea. Not In the grant of the government.
Then there is a long argument, based on the
allered policy of Maasachusetta, in regard to
public highwaya. There ia nothing, Mr. Web-
ster argued, in the aituation of such mattera, in
tlutt State, requiring the adoption of any par-
ticular line of policy. The roads are numerous
and excellent, and no trouble ia experienced in
maintaining them ao. There are no cases re-
quiring any peculiar policy, nor aaj great or
broad power to he exerciaed over them.
This particular case formed an exeeptlon to
the usual caution exertilsed by Massachusetts
in legislating upon mattera of thia kind. Brer
aince tbi* act passed, nay, within these two
Jta.T%, the LegiaUtwe hM granted a charter to
eompau^ fpT tin araetitw of "Tba Hauooek
Free Bridge" near the West Boatoo Brldgak
from Boston to Ckmbridge; between that m.w-
nue and Canal Bridge, lower down. The mdb
preacribes the width; the obtigation to attend
the draw, etc.; makea the bridge a free one;
the corporation to keep it in order, etc. For
all thia, they look for their compouation W
the advanced value of their oontignoul prop-
erty. And in thia very aet, tlMt eorporatioa
are directed to make compensation to all own-
ers of real estate, whose property ia Uabla to
injury by the erection of the said bridge; ap-
praisers *ai« to be appointed according [*SSS
to a mode pointed out In the act, and If not
made according to their appraisement, then bj
the decision of a jury of the eonntry. And ft
section of the set providea that its provision*
are to be void, If, before a certain period, tfao
proprietora of the West Boston Bridge shall sell
out their bridge, according to the estimate of
appraisers to be appointed by the parties- The
lan^age is, if such proprietors "will sell out
their bridge and franchise." Now, can this
be set off by metes and bounds, as required of
us, in relation to our "franchise!" And no
much for the "policy" and understanding of the
Legislature of Massachusetts aa to fraacbisesl
Again, it is pretended and argued that ibm
plaintiffa have not always been uniform in the
interpretation of their owa rights. On the com-
trary, answered Mr. Webster, this same rigbt
was set up on building the bridge to the fran-
chise of the ferry, and was then acknowledged;
and the aame principle has ever ainoe beea
recoraiied and acted upon by the Legialatvre,
and by the plaintiffa.
And there waa one other aubject, which,
though it had no bearing upon the case at bar
whatever, bad been made a great deal of in the
argument of defendants' counsel. Some obscr-
vationa upon it had been advanced, by way of
connecting it with the case, of so novd a kind
as to require, however, some notice. And this
was, that in chartering the Warren Bridge, the
Legislature did but exercise its power over the
eminent domain of the State. This power is
described aa being inalienable, and that the
State cannot abandon it; nor by ita own oor-
enant, or grant, bind itself to alienate or trans-
fer it in any way. That it cannot tie up ita
hands in any wise, in regard to its eminent do-
In the oonrse of the arguments for the de-
fendants, one of their honors (Mr. Juatice
Story) had put a case to the learned connsal
(Mr. Greenleaf) like the following: Suppoaa
a railroad corporation receive a charter at the
hands of the State of Massachusetts, In whieh
an express provision was inserted that no other
road should be granted during the duration of
the charter, within teA miles of the propooed
road. The road is built and opened. TM he
hold that, notwithstanding that eoraunt, a
subsequent Legislature had the power to grant
another road, within five rods of the first,
without any compensation other than the faith
thus given b]> their charter of the State of
Massachusetts T And the learned oonnsel had
replied, that he did ao say, and did ae hoMl
This struck him, as it must have atrack ths
court, aa moat atartling dootiine.
*[Ur. Greenleaf here sUted that In r*Bt4
inch a CMS, the faith vt tha State of mum-
Tbe CHAaus RiTKk I
B V. Th> Wabuh Bumb n AL
firoperty tbB Stkta mij^t talu, uid for kit the
injurjr which should be done to private righte.
It would not be pre«umed by tbU eourt that
the faith of the State wonU be broken.]
Mr. WebitN Drocccded to say that the flrd
question be wislied to put, in relatioii to the
poeition of tbe defendante' eouiuel, was, hoir
can this power of etainent domaio, aa thus
eonitrued, be limited to the two side*, merely,
tl the road I Why should it not fall upo> the <
l«ad itself, and no compensation follow to tbe
panteesi It is all alike part and pareel of the
•ante 'eminent domain." And so, in the eaae
at bar, if that power gixea the right to erect
another bridge beside our own, why does it not
give an equal right to take the latter aleol
Eminent domain it a part of lovereignty,
and resides in the soTei|pign — in the people;
what portion of it is granted to the Legislature
belongs to tli^m, and what is not granted re-
mains with tlie people. Is not the power of
eminent domain as welt restricted as any other
power! It is restricted by the constitution of
the State, wliich contains a surrender of it to
tbe government erected by that Constitution.
It may bo as well reflated and restraioed hy
provisions in the Constitution, as any other
power originally in tbe people, and its exereiee
must be according to such provisions.
It is necessary to have a clear idea of what
this same power of eminent domain actnally is.
What, then, do the counsel for tlw defendants
mean, when they say that the State cannot
ttmasfer it* eminent domain! They certainly
do not mean it* domains, its territory, its
lands! And here he cited the case of the gov-
emment land in tbe west and northwest, as a
proof ttiat that could not be the meaning of
the counsel. They were tbe eminent domain in
one sense, of the country; and in that sense
the government can, and does pass them away.
But the other eease was, the power, rule, do-
minion of the State over its territory. These
two ideas must not be blended in this investi-
gation. The power of the State over its emi-
aent domain, means the power of government
over property, public or private, under various
rules and qualifications. What is meant by
the government's inability to part with its
eminent domain I It can part with the thing,
and reserve tbe power over it, to the extent of
pubtfa: benefit by the State,
the power of the State over Its eminent do-
main. But granting a franchise is not an exer-
cise of that power. Cited, Tattel, page 173, see.
244[ page 70, see. 46.
The Legislature may grant fnochisea. This
is done by its sovereign power. What may it
do with those franchisee! What power has ft
over them after they have been granted! It
may do just what it i* limited to do, and noth-
ing more. It is reatraiDed by the same instru-
ment which ^ve it existence from doing more.
The question is, what restrietlons on this
power are found in the eonstitution of Maasa.
ehnsetts; and by a reference to It, tbe limita'
tloa of legislative powers will be found. The
power may I>e exercised by taking property, on
paying for it. la Um aoostltutlva It k exprasa-
t b«4.
ly declarad that property shall not be taken by
the public without its bthig paid for.
In Baldwin's Circuit Court Reports, it is said
that it is incident to the sovereignty of every
government that it may take private property
for public use; but the obligation to make com-
pensation is concomitant with the right. r>ona-
parte v. The Camden and Aniboy Railroad
Company, 1 Baldwin's Rep. 220.
How, then, can this ground which has l>een
taken for the defendants be maintained! The
whole pleading* show that the right of emi-
nent domain was not involved In this case,
when before the court of Massachuaetts. It is
too late now to present it. There is no alle-
gation that the property of the plaintilTs have
been taken, and compensation made for it.
The defendante seem to say that if the prop-
erty of the proprietors of the Charles River
Bridge had been taken under the right of emi-
nent domain, the case is without a remedy.
But this is denied. The taking under the priv-
ilege of eminent domain is limited by the pro-
vision that compensation shall be made. Nor
is it true that the Legislature may not part
with a portion of its right of eminent domain.
Thus, in Wilson's esse, the riglit to tax lands
in the State of New Jersey was surrendered by
the Legislature. The State of New Jersey v.
Wilson, 7 Cranch Rep. 164; S Petera's Cond.
Kep. 467.
In conclusion, Mr. Webster eaid, the plain-
tiffs have placed their reliance upon the prec-
edents and authority established by this honor.
able court, in the course of the last thirty
years, in support of that constitution which se-
cured individual property against legislativa
assumption; and that they now ask tlie en-
lightened conscience *of this tribunsl, (*&3fl
if they have not succeeded in sustaining their
complaint upon legal and constitutional
grounds: if not, they must, as good citizens ol
this republic, remain satisfied with the decision
of the court.
Mr. Chief Justlee laaey delivered the opin-
ion of the court:
The queatioas involved in this case are of the
gravest character, and the court have given to
them the moat anxious and deliberate consid-
eration. The value of tbe right claimed by the
plaintiffs is large in amount, and many persona
may no doubt be seriously affected in tlieir pe-
cuniary interests by any decision which the
court may prononnce; and the questions whioh
have lieen raised as to Uio power of the several
Btates, in relatiMi to tiM corporations they
have chartered, are jpregnant with important
consequences; not only to the individuals who
are concerned in the corporate francbises, but
to the eommunitiea In which they exist. The
court are fully sensible that it is their duty,
in exercising the ht^ powers conferred on them
by the Constitution of the United SUtes, to
deal with these great and extensive interests
with the utmost caution; guarding, es far as
they have the power to do so, the rights of
property, and at the same time carefully ab-
staining from any encroachment on the rights
reserved to the Statea.
It appears from the record that tn the year
ISfiO the LegislatBre of Massachusetts granted
to the president of Harvard Collegs "thM lilwr-
■ Cmjwt tr -MK Uinnv SrAna.
ty and powu^ to dlapoM of tha tenj from
uiKrlestown to Boaten, by Icaie or othorwiM,
Id behalf mnd for tha behoof of th« oollt^j and
that, under that grant, tha collegr eontiaued to
hold and keep the ferry by ita leiaeei or agcata,
«Bd to receive the profits of it until HftS. In
the last- mentioned year, « petition was pre-
. sented to the Legislature by Thomas Ronell
uid othurs, stating the incoDTenienca of the
transportation by ferrlea over Charles River,
and tba public advanti{[«a that would result
from a bridge i and praying to be incorporated
for the purpose of erecting a bridge In tbe place
where tne ferry between Boston and Charles-
town was then kept. Pursuant to this peti-
tion, the Legislature, on the Bth of March,
1785, passed an act incorporating a company by
the name of '"The Proprietor* at the Charlea
River Bridge," for the purposes mentioned in
the petition. Under this charter the company
were empowered to erect a bridge in "the place
where the ferry was then itept;" certain tolls
were granted, and the charter was 1imit«d to
ftST*] 'forty years, from the first opening of
the bridge for passengers) and from the time
the toll commenced, until the expiration of
this term, the company were to pay two hun-
dred pounds, annually, to Harvard College; and
at the expiration of the forty years tha bridge
was to bs the property of the Common wealth;
"suving (as the iaw expresses it) to the said
Oollege or university, a reasonable annual com-
pensation, for the annual income of the ferry,
which they might have received had not the
aaid hrid^ been erected."
Tbe bridge was accordingly built, and waa
opened for passengers on the ITth of June,
1786. In 1792, the charter was extended to
seventy years, from the opening of the bridge;
and at the expiration of that time it was ta be-
long to the Commonwealth. Tbe corporation
have regularly paid to the college the annua]
vim of two hundred pounds, and have per-
formed all the duties Imposed on them by the
Wms of their charter.
In 1SE8 the Legislature of Maosacbusetta in-
Aorporated a company by the name of "The
Proprietor! of the Warren Bridge," for the
purpose of erecting another bridge over Charles
River. This bridge is only sixteen rods, a
commencement on the Charlestown side, from
the commencement of the bridge of the plain-
tiffs; and they are about fifty rods apart at
their termination on the Benton side. The
travelers who pass over either bridge, proceed
tlom Charlestown Square, whi<^ receives tha
travel of many great public roads leading from
the country; and the passengers and traveler!
who go to and from Boston, used to pass over
the Charles River Bridge, from and throng this
square, before the erection of the WarreA
Bridge.
The Warren Bridge, by the terms of its char-
ter, was to be surrendered to the State as soon
as the expenses of the proprietors in building
and supporting it should he re-imburaed; bat
this period was net, fn any event, to exceed six
years from the time tbe company eonuneaced
receiving toll.
When the original bill in this case waa filed,
the Warren Bridge had not been built) and
the bill was filed after tbe paaaage of tha
law, in order to obtain an Injunction to pn-
vent Its erection, and for general rcU** ^^*
UII, among other things, charged as • paimA
tar telief, that the act for the erection of the
Warren Bridge impaired the obligation of tka
contract between the Oommonwcaith and eb«
proprietors of the Charles River Bridge; aad
was therefore repugnant to the Constitution of
the United States. Afterwards, a supplemental
*-'" was filed, sUting that the liridBe had then
so far 'oompleted that It bad been [*5S8
opened for travel, and that divers persona had
passed over, and thus avoided the payment of
the toll, which would otherwise have been re-
ceived by the plaintiSa. The answer to tlw
supplemental bill admitted that the bridge hwl
been so far completed tliat foot passe ngen
could pass, but denied that any pereons but the
workmen and the superintendents had pasaed
over with their consent. In this state of the
pleadings, the cause came on for bearing in the
Supreme Judicial Court for the County of Stif-
folk, la the Oommonwealth of Massachusetta,
at November Term, ISSB; and the court decided
that the act incorporating tbe Warren Bridge
did not impair tbe obligation of the contract
with the proprietors of the Charles River
Bridge, and dismissed the complainants' bill-,
and the case is brought here by writ of error
from that decision. It is, however, proper to
state that it is understood that the State oonvt
was equally divided upon the qnestion; and
that the decree dismissing the bill upon the
ground above slated, was pronounced by ei ma-
jority of the oonrt, for the parpoee of enabling
tha complainants to bring toe question for de-
cision lief ore this court.
In the argument here, it was admitted that
since the filing of the aupplcmental bill, a anf-
flcient amount of toll had been received by tbe
proprietors of the Warren Bridge to re-imburse
all their expenses, and that the bridge ia now
the property of the State, and has been made
a free bridge; and that the value of the fran-
deatroyed.
If the eomplainants deem theee fscta mate-
rial, they ought to have been brought before
the State court, by a supplemental bill; and
this court. In pronouncing its judgment, esA-
not regularly notice them. But in tbe view
which the court take of this subject, these ad-
ditional circumstances would not in any d«!grae
Influence their decision. And as they are eon-
ceded to be true, and the ease has been arvued
Ml that ground, and the controversy baa been
for a long time pending, and all parties deaire
a final end of It; and as it is of importance to
them that tbe principles on which this court
decide sbonld not be misunderstood; the eaae
will be treated in the opinion now delivered,
as if these admitted faeU were regularly be-
A good deal of eridence haa bewi offered to
show the nature and extent of the ferry ri|cht
granted to the college, and also to show tha
rights claimed by the proprieton of the bridge
at different times, *by virtue of their [*6S«
charter; and the opinions entertained by com-
mittees of the Legislature and others upon titat
subject. But as these circumstaoces do not
affect the judfpnsut of this court, it ie unnacM-
•ary to recapitulate them.
The plaintiffa in error insist, maialy, npoe
Iwn «mnndai lit. That by virtue of tha
F«Mra 11-
1»S7
Tub CiUBixs Sivn Budob v. tuE Wabbkr Bbomi bt U.
sn
grant of 1060, Harrard Collega vm entitled, In
Crpetnftv, to the right of keeping & ferrj
twKn Charleatoim and Boetoa; that tiiis
right was excluBiTe, and that tiw IiEgislature
hmd not the power to eetabliah another ferry
on the Mime line of travel, beeauee It would in-
frioge the rights of the oollege; and that these
rights, upon the erection of the bridge in tho
placa of the ferry, under the oharter o( 1TS5,
were transferred to, and bacanie rested in "the
proprietors of the Charles RiTer Bridge:" and
that under and hy virtue of this transfer of
the ferry right, the rights of the bridge com-
pany were as exclusive in that line of travel,
aa the righta of the ferry. Sd. That Inde-
Cndently of the ferry right, the acta of the
gislature of MassachusetU of 17BS, and 1792,
by their true construction, necessarily implied
that the Legislature would not anthariie an-
other bridge; and especially a free one, by the
aide of this, and placed in the aame line of
travel, whereby the franchise granted to
"proprietors of the Charles Elver Bridga"
■nould be rendered of no value; and the plain-
tiffs in error contend that the grant of the
ferry to the college, and of the charter to the
proprietors of the bridge, are both contraett on
the part of the State; and that the law
anthorliing the erection of the Warren Bridge
In 1S28, impairs the obligation of one or both
of these contracts.
It is very clear that in the form in which
this case comes before us—being a writ of er-
ror to a State court — the plaintiffs in elaiming
under either of these rights must place them-
aelvec on the ground of contract, and eannot
support themselves on the ground of contract,
and cannot support themselves upon the
principle that the law devests vested righta
It is well settled by the decisions of this court
that a State law may be retrospective in its
ebaracter, and may devest vested rights, and
yet not violate the Constitution of the United
States, unlcKs it also impairs the obligation of
a contract. la 2 Peters, 413 (Satterlee v.
Uathewson), this court, in speaking of the
State law then before them, and interpreting
the article in the Constitution of the United
States which forbids the States to pass laws
Impairing the obligation of contracts, uses the
following language: "It (the State Uw) Is
said to DC retrospective; be it so. But retro-
spective laws which do not impair the obliga-
K40*] tion of contracts, *or partake of the
ahatscter of ex post facto laws, are not con-
demned or forbidden by any part of that In-
•tmnent" (the Constitution of the United
States). And in another passage in the same
aaae, the court say, "the objection, however,
most pressed upon the court, and relied upon
by the counsel for the plaintiff in error, was
that the effect of this act was to devest rights
which were vested by law in Satterlee. There
la certainly no part of the Constitution of the
United States which applies to a StaU law of
this descriiition -, nor are we aware of any de-
siBioB of this, or of any Circuit Court, which
has condemned such a iaw upon this ground,
provided its effect be not to impair the obliga-
tion of a contract." The same principles were
re-alBrmed In this court, in the late case of
Wataon at al. v. Mercer, decided in 1834 (8
Pet. 110), "as to the first point (say the court),
it la ele«r that tliia court baa no right to pt»-
wmnce an act of the State Legislatnie void, as
contrary to the Constitution of the United
States, from the mere fact that it devests ante-
cedent vested rights of property. The Consti-
tution of the United States does not prohibit
the States from passing retrospective laws,
generally, but only ei post facto laws."
After these solemn decisions of this court. It
is apparent that the plaintiffs (n error cannot
sustain themaelves here, either upon the ferry
right, or the charter to the bridge, upon the
ground that vested rights of property hare
been devested by the Iicgislature. And whether
they claim under the ferry right, or the charter
to the bridge, they must show that the titla
which they claim was acquired by eontraet,
and that the terms of that contract liave been
violated by the ebarter to the Warren Bridge.
In other words, they must show that the State
had entered into a contract with them, or those
under whom they claim, not to establish *
free bridge at the place where the Warren
Bridga ii erected. Such, and such only, ara
the principles upon which the plaintiffs in er-
ror can claim relief in this case.
The nature and extent of the ferry right
granted to Harvard College in 1S50 must de-
pend upon the laws of Massachusetts, and the
charaoter and extent of this right has been
elaborately discussed at the bar. But in the
view which the court take of the case before
. these questions.
J to express any opinion
or assuming that the
grant to IJarvard College, and the charter to
the bridge company, were both contracts, and
that the ferry right was as extensive and ex-
cluBive aa the plaintiffs contend for, still they
cannot 'enlarge the privileges granted [*S4t
to the bridge, unleu it can be shown that the
rights of Harvard College in this ferry have,
by assignment, or in some other way, been
transferred to the proprietors of the Charles
River Bridge, and still remain in existence,
vested In tfiem, to the same extent with that
In which they were held and enjoyed by the
college before the bridga was built.
It oas been strongly pressed upon the court
by the plaintiffs in error that these rights are
sttn existing, and are now held by the pro-
prietors of the bridge. If this franchise still
exists, there must be somebody possessed of
authority to use it, and to keep the ferry.
Who could now lawfully set up a ferry where
the old one was kepti The bridge was built in
the same place, and its abutments occupied the
landings of the ferry. The transportation of
passengers in boats from landing to landing
was no longer possible, and the ferry waa aa
effectually destroyed, as if a convulsion of
nature bad made there a paaaage of dry land.
The ferry, then, of necessity, ceased to exist
as soon aa the bridge was erected; and when
the ferry itself was destroyed, how can rights
which were incident to it, be supposed to sur-
vive! The exclusive privileges, if they had
such, must follow the fate of the ferry, and
can hare no legal existence without it; and if
the ferry right had been aaalgned by the col-
lege, in due and legal form, to the proprietors
of the bridge, they themselves extinguished
that right, when they erected tlie bridge in Its
Elace. It is not supposed by anyone that the
ridge company hare a right to keep a ferry.
No Mak ruht !• claimed fa them, nor eaa
Sll
b« «Mni«d for them, under their chartar to
«reet a bridge; end It fi difllcult to imagine
bow ferry rights can be held bj a corporation,
or an individual, who hive no right to keep
a ferry. It !• clear that the Incident must
follow the fate of the principle, and the prir-
liege connMtrd with property cannot surviTa
the deatnicfion of the property; and if the
ferry right in Harvard Coilcse was excluaive,
and hed been BMfgned to the proprietora of
the bridge, the privilege of excluaion conid not
Kmain in the hands of their uslgneei, if thoie
ualgneea dutroyed the ferry.
But upon what ground can the plaintiff* Id
•rror contend that the ferry rights of the eol-
l«ga have been transferred to the proprietora
of the bridge! If they have been tnue trane-
ferred. It must be by some mode of transfer
known to the law, and the evidence relied on
to prove It can be pointed out In the record-
How was tt transferred! It is not suggested
that there ever was in point of fact, a deed
64S*i of eoRveyance 'executed by the ool-
lege to the bridge company. I* there any evi-
dence in the record from which such a convey-
anee may, upon legal principle, be presumedT
The tratiinony before the court, m far from
laying the foundation for such a presumption,
repels It in the moat positive terms. The peti-
tion to the Legislature in 1786, on whlcli the
charter was granted, doea not suggest an aa-
■ignmtnt, nor any agreement or consent on the
part of the college] and the petitioner! do not
appear to have regarded the wiabea of that in-
•tltution, aa by any means neceasary to inanre
their auceesa. They place their application en-
Urely on considerationa of public intereat and
public convenience, and the euperior advantagea
of a communication serosa Charles River by a
bridge inatead of a ferry. The Legialature, in
granting the charter, show, by the language of
the law, that they acted on the principles as-
•umed by the petitlonera. The preamble recites
that the bridge "will be of great public util-
ity)" and that is the only reaaon they assign
for paasing the law which incorporates thla
company. The validity of the charter is not
made to depend on the consent of the college,
nor of any assignment or surrender on their
part; and the legislature deal with the sub-
ject, aa if It were one eielusively witbfn their
own power, and aa if the ferry right were not
to be transferred to the bridge oompany, but
to be extinguished ; and they appear to have
acted on the principle that tlie State, by virtue
of Ita aovcreign powers and eminent domain,
had a right to take away the franehise of the
ferryi because in their judgment, the public
interest and convenience would be better pro-
moted by a bridge in the snme place; and upon
that principle they proceed to make a pecunl-
arv compensation to the college for the fran-
chise thus taken away, and aa there !• an ez-
preas reservation of a coatinuing Mcuniarj
compenaation to the college when tne bridge
shall become the property of the Btate, and no
Sirovlalon whatever for the raatoratioD of the
arry right, It la evident that no such right was
intended to be reserved or continued. The
ferry, with all Its privileges, was intended to be
forever at an end, and a compensation in
money was given in lien of It. The eolle^
acqulMced in thia arrangement, and there is
f, iB tho TMonl, that tt wm all doaa wttb'
jjj,..
na Vmnm Btt-tm.
their consenL Cam « 4e«d of
the bridge company, which would keep kHvo
the ferry rights in their hands, be premuMd
under such elrcumatancesl Do not the peti-
tion, the law of incorporation, and the ooBseBt
of the college to the pecuniary provision made
for it in perpetuity, alt repel the notion of tm
assignment of Its rights to tlie bridge
•company, and prove that every party ["B4»
to this proceeding intended that Ita franehisca,
whatever they were, should be reeomed by
the State, and be no longer held by any Indi-
vidual or corporation! With such avidenea
before us, there can be no ground for praaoB-
ing a conveyance to the plaintiffs. There was |
no raason for such a conveyance. There wan
every reason against It; and the arrangeneaita I
proposed by th« charter to the bridge, muld
not have been carried into full effect, nnlcM
the rights of the ferry were entirely extlM-
guisbed.
It is, however, said that the payment of the
two hundred pounds a year to the college, aa
provided for in the law, gives to the pro-
prietors of the bridge an equitable claim to bo
treated as tbe assignees of their Intereat;
and by aubatitution, upon chancery principle*,
to be clothed with all their rights. ,
The answer to this argument ia obviooa.
This annual sum was intended to be paid out
of the proceeds of the tolls, which tlie com-
pany were authorised tc collect. The amount
of the toils, it must be presumed, was gradn-
ated with a view to this incumbrance, aa well
as to every other expenditure to which tlw
company might bo subjected, under the pra-
visiona of their charter. The tolls were to l>o
collected from the public, and it was intended
that the expe " " ■- . ..
College should
that the expense of the annuity to Harvard
" !ga should be boma by the public; and it ia
ifest that it was so borne, from the amount
which it ia admitted they received until tha
Warren Bridge was erect«d. TUeir agreement,
therefore, to pay that sum, can give them no
Suitable right to be regarded as tbe asaigneea
the college, and oertaiuly can furnish do
foundation lor presuming a conveyance; and
as the proprietors of the bridge are neither tha
legal nor equitable assignees of the college, it
is not easy to perceive how the ferry franchise
can be Invoked in aid of their claims, If it were
even still a sulisisting privilege; and had not
been resumed by tha State for the purpose tt
building a bridge in its place.
Neither can the extent of the pre-existing
ferry right, whatever it may have been, bava
any influence upon the oonstruction of tho
written charter for the bridge. It does not, by
any means, follow that because tbe legis-
lative power in Massachusetts, in IS50, may
have granted to a justly favored aeminary of
learning, the exclusive right of ferry between
Boston and Charlestown, they would. In 17SS,
give the same extensive privilege to another
corporation, who were about to erect a bridge
in the same place. The fact that such a right
'was granted to the college cannnt, {*ft44
by any sound rule of construction, be used to
extend tbe privileges of the bridge company
tieyond what tbe words of the charter natural-
ly and legally Import. Increased populatioa
longer experienced in legislation, the different
character of the corporations which owned tha
Uta Iron that which owoad tha bridge, miglit
PMon it.
im
Thi Ohaum Kivn Bsmot t. The Waut^ Budok ct At.
well h*Te Indneed a. diuige In the policy of the
8tat« in this re«p«cti mnd as the franchise of
the ferry And that of the brld)(e are different in
their nature, and were each established bv sep-
arata grants, which have no words to connect
the privilege* of the one with the privileges of
the other; there ia no rule of legal interpreta-
tion which would authorize the court to as-
•oclate these grants t<^ther. and to infer that
any privilege was intended to be given to the
bridge eompctiy, merely because it had been
•onfernd on the ferrv. Tlie charter to the
bridge ia a written Instrument which must
•peak for ttaelf, and be interpreted by ita own
This brings ns to the Act of the Legislature
of Maasaehusetta of ITS6, by which the plain-
tiff! were incorporated t^ the name of "Tbe
Proprietor* of the Charles River Bridgci" and
It is here, and in the law of 170S, prolonging
tkeir chartar, that we must look for the extent
and nature of the franehise conferred upon tbe
plaintiffs.
Much haa been aatd in the argument of the
principlea of construction by which this law is
to ba eipounded, and what undertaltings,
the t
The
that head. It is the grant of certain franchises
bjr the public to a private corporation, and in
a matter where the public interest is concerned.
The rule of construction in such cases ia well
aettled, both in England, and by tbe decisions
of our own tribunals. In 2 Bam. ft Adol.
703, in the case of The Proprietors of the
Stourbridge Canal t. Wbeely et al., the court
aaj, "the canal having been made under an act
of Parliament, the rights of the plaintiffs are
derived entirely from that act. This, like many
other eases, is a bargain between a company of
adventurers and the public, the terms of which
are expressed in the statute; and the rule of
construction in all such cases, Is now fully es-
tablished to be this — that any ambiguity in the
terms of the contract, must operate against tbe
adventurers, and in favor of the public, and the
plaintiffs can claim nothing that is not clearly
given them by the act." And the doctrine
thus laid down is abundantlv sustained by the
authorities referred to in tbis decision. Tbe
eaac itaelf waa as strong a one as could well be
■ 4B*] imagined for giving to the 'canal com-
Kny, by implication, a right to tbe tolls they
nanded. Their canal had been used by tbe
dafendanta, to a yety considerable extent, in
transporting large quantities of eaal. The
rights of all persons to navigate the canal,
ware expressly secured by the act of Parlia-
ment; BO that the company could not prevent
them from using it, and tbe toll demanded was
admitted to be reasonable. Vet, as they only
naed one of the levels of the canal, and did not
paaa through the locks; and the statute,
ing the right to exact toll, had given
artlelca which passed "through any one
giv-
it for
aaore of the docks," and had aaid nothing as to
toll for navigating one of the levels; the court
bold that the right to demand toll, in the latter
aaaa, conld not be implied, and that tbe com-
pany were not entitled to recover it This was
a fair caae tor an equitable construction of the
act of incorporation, and for an implied grant.
If sneh a rule of construction could ever be
panMttd In a law «f that deacriptinn. For
the eanal bad been made at the expenw of the
cnmrian}': the defendants had avniled them-
selves of the fruits of tlipir Iftbors. and used tha
ntnal freelv and extensively fortlieir own proAL
Still the ri^ht to exact toll could not be im-
plied, because such a privilege was not found
in the charter.
Borrowing, as we have done, our system of
jurisprudence from the English law; and hav-
ing adopted, in every other case, eivFl and
criminal, its rules tor tbe construction of stat-
utes; is there anything in our local situation,
or in the nature of our politicnl institutions,
which should lead us to depart from the prin-
ciple where corporations are onnpernedl Are
we to apply to acts of incorporation a rule of
construction differing from that of the Eng-
lish taw, and, by implication, make the terms
of a charter in one of the States more unfavor-
able to tbe public tlion upon an act of Par-
liament, framed in- the same words, would be
sanctioned in an Kn^lisb court T Can any good
reason be assifrned for exceptin;; this particu-
lar class of cases from the operntion of tbe
general principle, and fir introducin;; a new
and adverse rule of construction in fnvor of
corporations, while we adopt and adhere to the
rules of construction knonn to the English com-
mon law, in every other caae, without excep-
tion! We think not; and it would present
a singular spectacle it, while the courts in
England are restraining, within the strictest
limits, the spirit of monopoly, and exclu.4iva
privileges in nature of monopolies, and confin-
ing corporations to the privileges plainly given
to them in their 'charter: the courts of this
country should be found enlarging 'those [*54S
privileges by implication; and construing a
statute more unfavorably to the public, and
to the rights of the conimunity, than would be
done in a like caae in an English court of jus-
tice.
But we are not now left to di'termine, for tbe
first time, the rules hy which public grants are
to be construed in this country. The subject
has already been considered in this court, and
the rule of construction, shove stated, fully es-
tablished. In the case of The L'nited States v.
Arredondo, B Pet. 738, the leading cases upon
this subject are collected together by the learned
judge who delivered the opinion of the court,
and the principle recognized, that in grants hy
the pubtic nothing posses by implication.
The rule is still more clearly and plainly
stated in the case of Jachson v. I.Ampliire, in I
Pet. 2S9. That waa a grant of land by the
State; and In speaking of this doctrine of im-
plied covenants in grants hy the State, the
court use the following language, which is
strikingly applicable to the case at bar: "The
only contract made by the State is the grant tc
John Cornelius, his heirs and asaigna, of tiM
land In question. The patent contains no oova-
nant to do, or not to do any further act in rela-
tion to the land; and we do not (eel ourselves
at liberty, in tbia caae, to create one by impU-
cation. The State has not, by this act, im-
paired the force of the grant; it does not pro-
fess or attempt to take the land from the as-
signs of Cornelius and give it to one not claim-
ing under him; neither does the award produce
that effect: the gi-ant remains in full force; the
Sroperty conveyed is held by his grantee, and
le Stata asaerta no claim to if*
StmtniB Covwi or tote UiirnD Statw.
The umt mTe of eonatruetion !■ aIm atated
In the ease of Bemttj v. The Lruee of Knoirler,
4 Pet. IBS. decided in thi* court in 1B3D. In de-
IiTerin); their opinion in that case, the court
aa^: "That b corporation is strictlj limited to
the exercise of those powers which are apeeifle-
all7 Bonferred on it, will not be denied. The
(Dcerciee of the corporate franchise being re-
■trictive of individual rights, cannot be ex-
tended beyond the letter uul spirit of the uit
Mt Incorporation."
But the case most anali^ou* to this, and in
wkicb the question came more directly before
the court, is the case The Providence Banic v.
Billings t Pittman, 4 Pet. 514, and which
ma decided in 1B30. In that case, it appeared
that the Legislature of Rhode Island had char-
tered the baalc, in the usual form of such acta
of incorporation. The charter contained no
Btlpulstlon on the part of the StaU, that it
would not impose a tax an the bank, nor any
reserration of the right to do so. It was silent
647*] on this point. Afterwards, a law *was
passed, imposing a tax on all banka in the
Btate; and the right to impose this tax was
resisted by the Providence Bank, upon the
ground that It tbm State could impose a tax,
it might tax so heavily aa to render the fran-
ehlee of no value, and destrtnr the Institution;
that the charter was a contract, and that a
^wer which may in effect destroy the cliarter
inconsistent with it, and is impliedly re-
nounced by granting it. But the court said
that the taxing power was of vital importance,
and essential to the existence of government;
and that the relinquishment of auch a power
la never to be assumed. And In delivering the
opinioo of the court, the late Chief Justice
states the principle in the following clear
and emphatic language. Bpeaking of tbe tax-
ing power, he says, "as the whole community
is interested tn retaining it undiminished, that
community has a right to insist that its aban-
donment ought not to be presumed, in a case
In which the deliberate purpose of the State to
abandon it does not appear. ' The ease now be-
fore the court is, in principle, precisely the
•ame. It ia a charter from a State. The act
of incorporation is silent in relation to tha con-
tested power. The argument in favor of the
proprietors of the Charles River Bridge, fa the
•ame, almost in words, with that used by the
Providence Bank ; that is, that the power
claimed by the State, if it exists, may be so
used as to destroy the value of the franchise
tb^ have granted to the corporation. The ar-
gument must receive the same answer; and
the fact that the power has been already ex-
ercised so as to destroy the value of the tran-
ehise, cannot in any degree affect the principle.
The existence of the power does not, and can-
■ot depend upon the circumstance of its having
been exercised or not.
It may, perhaps, be aald, that In the ease of
The Providence Bank, this court were speaking
of tlie taxing power; which is of vital impor-
tance to the very existence of every government.
But the object and end ol all government is to
promote thin happiness and prosperitv of the
eommnnity by which it is established, and it
oan never be assumed that the government in-
ttnded to diminish it* power of accomplishing
*ta Md (or wbiob it waa enated. And in a
•M
couDtry lik« oora, fne, aetive and enterpris-
ing, continually advancing in numbers *nd
wealth; new channels of communication »ra
dally found necessary, both for travel ^d
trade, and are essential to the comfort, conven-
ience, and prosperity of the people. A Stats
ought never to be presumed to surrender tbia
power, because, like the taxing power, tha
whole community have an interest In prferr-
ing *lt undiminished. And when a [*S4S
corporation alleges that a Btate has surTender«d
for seventy years Its power of improvement ajid
public acGommodation, in a great and Importuit
line of travel, along which a vast nomber of
its citisens must daily pass; the commanity
have a right to insist, in the language of thia
court above quoted, "that its abjuidonmeiit
ought not to be presumed, In a case in whicli
the deliberate purpoae of the State to abandoa
It doe* not appear." The continued existenea
of a ^venunent would be ot no great value.
If by implications and presumptions, it waa die-
armed of the powers necessary to accomplish
the ends of its creation, and the functions it
was designed to perform, transferred to the
hands of privileged corporations. The rule of
construction announced by the court was not
eonSned to the taxing power, nor is it so limit-
ed in the opinion delivered. On the contrary. It
was distinctly placed on the ground that tha
inti-rests of the community were concerned In
preserving, undiminished, the power then in
question; and whenever any power of the St«t«
is said to be surrendered or diminished, wheth-
er it be the taxing power or any other affecting
the public interest, the same principle applies,
and the rule of construction must be the same.
Ko one will question that the Interests of the
^eat body of the people of the State, would,
in this instance, be affected by the surrender ot
this great line of travel to a single oorporatitw,
with the right to exact toll, and exclude com-
petition for seventy years. While the rights of
private property are sacredly guarded, we must
not forget that the oommunity also have rights,
and that the happiness and well being of
every citizen depends on their faithful preser-
Adopting the rule of construction above stated
as the settled one, ws proceed to apply it t«
the charter of IT86, to the proprietors of tba
Charles River Bridge. This act of incorpora-
tion Is in the usual form, and the privileges
such as are conunonly given to eorporattona of
that kind. It confers on them tne ordinary
faculties of a corporation, for the purpose of
building the bridge; and establishes cert^a
rates of toll, which the company are authoriasd
to take. This is the whole grant. There ia no
exclusive privilege given to them over the
waters of Charles River, above or below tbeir
bridge. No right to erect another bridge them-
selves, nor to prevent other persons from erect-
ing one. No engagement from the State that
another shall not be erected, and no undertsk-
ing not to sanction competition, nor to msJc*
improvements that may diminish the amount of
its income. Upon all these subjects the char-
ter Is silent, and nothing 'is said in It [*B4>
about a line of travel, so much insisted on ip
the argument, in which they are to have exclu-
sive privileges. No words are used from which
an Intention to grant any ol these rights can
P«Uilk It.
I83T
Tbe Chaiuis Rnn Biudcb v. Thi Wubkit Busoi vt u*
be lafeired. If the plaintiff is entitled to them,
tt muBt be Implied simply from the nature of
the grant, knil eannot be inferred from the
words h; wjiich the grant is made.
The relative poaition of the Warren Bridge
has already been described. It does not inter-
rupt the passage over the Charles Rirer Bridge,
■or malce the waj to it or from it lea* conven-
ient. None of the faculties or franchises grant-
ed to that corporation have been revoked by
the Legiatature; and its right U) take the tolls
granted b; the chsrter remains unaltered. In
•hort, all tlie franchise* and rights of property
enumerated in the eharter, and there mentioned
to have been granted to it, remain unimpaired.
But iU income is destroyed by the Warren
Bridge; which, being free, draws off the pas-
sengers and property which would hare gone
«verit, and renders their franchise of no value.
Tlia is the gist of the complaint. For it is not
Eretended that the erection of the Warren
ridge would have done them any Injury, or
in any degree airecte<l their right of property,
it it had not diminished tlie amount of their
tolls. In order, then, to entitle themselves to
relief, it is necessary to show that the Legisla-
ture contracted not to do the act of which they
eomplain; and that t!iey impaired, or in other
words violated, that contract, by the erection
of the Warren Brtd^
The inquiry then is, does the eharter contain
such a contract on the part of the State T Is
there any such stipulation to be found in that
instrument 1 It must l>e admitted on all hands,
tliat there is none — no words that even relate
to another bridge, or to the diminution of their
tolls, or to the line of travel. It a contract on
that subject can be gathered from the charter,
it must be by implication, and cannot be found
In the words used. Can such an agreonent be
implied T The rule of construction before stated
ia an answer to the question. In charters of
this description, no rights are taken from ths
public or given to ue corporation, beyond
thoM which the words of the charter, by their
natural and proper construction, purport to
eonvey. Tbere are no words which import
•uch a contract as the plaintifTs in error
contend for, and none can tw implied ; and the
Mme answer must be given to them that was
fiven by this court to the Providence Bank,
lie whole community are interested in this
inquiry, and they have a right to require that
ftfiO*] the power ot promoting thefr "comfort
and convenience, and of advancing the public
and the purposes of travel, shall not
strued to have bpen surrendered or diminished
by the State, unless it shall appear by plain
words that it wa* intended to be done.
But the case before the court is even still
■trooger against any such Implied contract as
the plaintifTs in error contend for. The Charles
River Bridge was completed in 17B8. The
time limited for the duration of the corpora-
tion by their original charter, expired in 1826.
When, therefore, the law passed authorizing
the erection of the Warren Bridge, the pro-
prietors of Charles River Bridge held their
corpora t« existence under the law ot 1792,
which extended their charter for thirty year*;
awl the rigiiti, privilege*, and Inwchiaea ot the
[aist-mentloned law,
with the Act of 1788.
The Act of 1T9S, which extends the ehartat
of this bridge, Inoorporatea another eompanf
to build a bridge over Charles River; furnish-
ing another eommnnlmton with Boaton, asd
distant only betweea one and two uilea fron
the old bridge.
The first six seetioni of this act Ineorponite
the proprietors of the West Boaton Bridge, Md
define the privileges, and describe the duties
ot that corporation. In the seveDth Mctloa
there is the following recital.- "And whncu
the erection ot Charlei River Bridge was a
work of haiard and publlo utUit;, and another
brid^ in the plaoe Of West Boston Bridge nay
dimmish the auolnmenta ot Charlaa Hirer
Bridge; therefor*, tor the MMWUragement of
enterprise," they proceed to extend Uie charter
of the Charles River Bridge, and to oontlnue H
tor the term of seventy years from the day the
bridge wae completed, subject to the eondltioDs
prescribed in the original act, and to be entitled
to the same tolls. It appears, then, that by lae
same act that extended this charter, the L^a-
tature established another bridge, which thej
knew would lessen Ita prollta, and this, too, he-
fore the expiration of tne first eharter, and only
seven yean after it was granted ; thereby show-
ing that the State did not suppose that, by the
terms it had used in the first law. It had de-
K rived itself of the power ot making such pub-
c improvesienta as might impair the proSu of
the Charles River Bridge; atid from the lan-
guage used in the clauses of the law by which
the charter Is extended, it would aasnn that the
Legislature were espeelally eantu] to exdnde
any inference that the extension was made
upon the ground of compromise 'with [*SS1
the bridge oompany, or aa a eompenaation for
rights impaired.
On the eontrarj, word* are cautiously em-
ployed to exclude that conclusion, and the ex-
tension is declared to be granted a* a reward
for the hazard tbey had run, and "for the en-
couragement of enterprise." The extension
was given because the company had under-
taken and executed a work of doubtful aue-
cess; and the improvements which the I.egls-
lature then contemplated, might diminish the
emoluments they had expected to reoeive tro«i
it. It results from this statement that the Leg-
islature in the very law extending the charter,
asserts its rights to authorize improvemente
over Charles River which would take off a
portion of the travel from thie bridge and di-
minish its profits; and the bridge company ao-
cept the renewal thus given, and thus carefully
connected with this assertion of the right on
the part of the State. Can they, when holding
their corporate existence under this law, and
deriving their franchises altogether from It,
add to the privileges expreaaed in their charter
an implied agreement, which is In direct eon-
fiiet with a portion of the law from which
they derive their corporate existence? Can the
Legislature be presumed to have taken upon
themselvea an Implied obligation, contrary to
Its own acta and declarations contained in th«
same lawl It would be difficult to find a eaae
WI
SUPBEMK CODltl Dt TMK UlHTRII Sr&TSa.
18*T
•oveieigD righto an corcemed and where the
intereaU of b whole conimunitj would be deep-
ly BfTected by lueh an implication. It would.
Indeed, be a itroog exertiun of judicial power,
acting upon ito own views of what justice re-
quired, and the parties ougbt to have done, to
raise, by a sort of judicial coercion, an implied
contract, and inter it Irom the nature of the
very instrument in which the Legislature ap-
pear to have taken pains to use words whleb
disavow and repudiate any intention on
iwrt of the State to make such a contract.
Indeed, the practice and usage of almost
wnrj Btate in the Union, old enough to hare
•onuneneed the work of iuternal improvement,
la oppoaed to the doctrine contended for on the
■•rt of the plaintiffs in error. Turnpike roads
Mve been made in succession, on the same line
of travel i the latter ones interfering materially
with the proflta of the fir^t. These corporations
have, in some instances, been utterly ruined by
the introduction of newer and better modes of
transportation and traveling. In some cases
roads have rendered the turnpike roods ni
aame line of travel so entirety uaelesa, that the
ltS2*] 'franchise of the turnpike corporation
;s not worth preservinj^. Yet in none of these
cases have the corporations supposed that their
!>rivileges were invaded, or any contract vio-
ated on the part of the State. Amid the multi-
tude of cases which have occurred, and have
been daily occurring for the last forty or fifty
^ars, this is tne first instance in which such an
implied contract has been contended for, and
this court called upon to infer it from an ordi-
nary act of incorporation, eontaining nothing
more than the usual stipulation! and provi-
sions to be found in every such law. The ab-
sence of any such controversy, when there must
have been so many occasions to give rise to it,
prOTBS that neither States, individuals, nor cor-
porations, ever imagined that such a contract
could be implied from such charters. It shows
that the men who voted for these laws never
imagined that they were forming such a con-
tract; and if we maintain that they have made
it, we must create it by legal fiction, in oppo-
sition to the truth of the fact, and the obvious
intention of the party. We cannot deal thus
with the rights reserved to the States; and by
legal intendmento and mere technical reasoning
lake awav from them any portion of that power
orer their own internal police and improve-
ment, which is BO necessary to their well being
and prosperity.
And what would be the fruits of this doctrine
of implied contracts on the part of the States,
and of property in a line of travel by a corpo-
ration, if it should now he sanctioned by this
oourtl To what results would it lead usT If it
is to be found in the charter to this bridge, the
same process of reasoning must discover It in
the various acts which have been passed within
the last forty years, for turnpike companies.
And what is to be the extent of the privileges of
exclnsion on the dilTerent sides of the road)
The oounsel who have so ably argued this case,
have not attempted to define it by any certain
boundaries. How far must the new impruve-
ment be distant from the old one! How near
may you approach without invading Ito rights
in the privileged line! If this court should es-
tablish the principles now eontended for, what
is to become of the nnmeroiu raflrqada estab-
lished on the same line of travel with tumpika
companies; and which have rendered tlie fr»B-
chises of the turnpike corporations of no value 1
Let it once be understood that such ehart«r«
carry with them these implied contracts, and
give this unknown and undefined property in
a line of traveling, and you will soon And th«
old tnrnpike corporations awakening from tfaeir
sleep, and calling 'upon this court to ["SSI
put down the Improyements which have t&kea
their place. The millions of property which
have been invested in railroads and csnsls, up-
on lines of travel which had been before occu-
pied by turnpike corporations, will be put in
jeopardy. We shall be thrown tuck to the im-
provementa of the last century, and obliged to
stand still until the claims of tlie old turnpike
corporations shall he satisfied, and they shall
consent to permit these States to avail them-
selves of the lights of modern science, and to
partake of the benefit of those improvement*
which are now adding to the wealth and proa-
perity, and the convenience and comfort, of
every other part of the civlHsed world. Nur ia
this al). This court will find ilscif compelled
to fix, by some arbitrary rule, the width of this
new kind of property in a line of travel ; for If
such a right of property exists, we have no
lights to guide us in marking out its extent, un-
less, indeed, we resort to the old feudal gniQta,
and to the exclusive rights of ferries, by pre-
scription, between towns; and are prepared to
decide that when a turnpike road from one
town to another had been made, no railroad or
canal, between these two points, could after-
wards be established. This court are not pre-
pared to sanction principles which must I<>ad
' such results.
Many other questions, of the deepest Impor-
nce, have been raised and elaborately tJis-
cussed in the argument. It Is not necessary,
for the decision of this case, to express our
, on upon them; and the court deem it
proper to avoid volunteering an opinion on
any question involving the construction of the
Cons^tution, where the case itself does not
bring the (question directly before tbem, and
make it their duty to decide upon it.
Some questions, also, of a purely technical
character, have been made and argued, as to
the form of proceeding and the right to relief.
But enough appears on the record to bring out
the great question in contest; and it Is the in-
terest of all parties concerned that the real con-
troversy should be settled without further ds>
lay; and as the opinion of the court is pro-
nounced on the main question in dispute her^
and disposes of the whole case, it is altof;et1ier
unnecessary to enter upon the examination of
the forms of proceeding. In which the parties
have brought It before the court.
The judgment of the Supreme Judicial Court
! the Commonwealth of Uaasachusetto, dis-
issing the plaintiffs' bill, must, therefore, be
firmed with cdto.
•Mr. Justice MXean. r»54
This suit in chancery was commenced in tbi
Supreme Court of Massachusetts, where the
bill was dismissed by a decree, pro forma, th«
members of that court being equally divided la
ipinion ; and a writ of error was token to this
Petera 11.
1887
Tkx CaABiEB BivEK BuDGi V. Tax Wabbch Bbiimib a u.
ecrart, on the ground tfakt tbe right M«ert«d b;
Ue eomplninanU, %nd whjoh has been violated
nnder tM charter of the reapondcntl, ii pro-
t«et«d by a special prorision in the federal
OoBititutlon.
The Gomplalnanta* right is founded on an
Act of the JjCgialatuTe of Masiaehusetta, passed
March Qth, 178S, which Inoorporated certain
iadividualB, and authorized them to erect a
bridge over Charlei River, a navigable atrcnm
between Boston and Charleston n, and an
Wnendatoi^ act, passed in 1791, extending the
eliarter thirty years.
As explanatory of this right, it not the
pound on which it In part reals, a reference
IB made to an ancient ferry, over the same river,
which waa held by Harvard College, and the
riglit of which was transferred, it is contended,
in equity, if not in Inw, to the bridge company.
The wrong complftined of, consists in the
oouatruetion of a new bridge over the saiae
river, under a recent act of the Legislature,
within a few rods of the old one, and which
tailces away the entire profits of the old bridge.
The act to establish the Charles River Bridge
required it to be constructed within ft limit&d
tItnE, of certain dimensions, to be kept in re-
pair, and to afford certain apecilied accommo-
d«tiooa to the public The company were au-'
thorized to charge certain rates of toll; and
they were required to pay, annually, two
hundred pounds to Harvard College. The flrat
charter was granted for forty years.
The fasts proved in the case show that a
bridge of the description required by the Act
of 1785, waa constructed within the time lim-
ited, that the annual payment has been made
to Uie college, and that, in every other respect,
the corporation has faithfully performed tiie
conditions and duties enjoined on it.
It ia contended that the charter granted to
the respondents, violates the abligatioD of that
wliich had been previously granted to the com-
Slainanta; and that, consequently, it is in con-
iet with that provision of the Constitution
which declares that "no State shall pass any
Iftw impairing the obligation of contracts."
In the investigation of this case, the first in-
SfiS*] quiry which seema naturally *to arise
fs as to the nature and extent of the right aa-
■erted hy the complainants.
As early as the year 1G3I, a ferry was es-
tablished across Charles Biver by the colonial
government of Massachusette Bay. In 1040,
the General Court say that "tite terry U
pmnted to the college." From this time the
[iroEts of the ferry were received by the col-
ege, and it was required bv various statutes,
nnder certain penalties, to keep certain boats,
etc., for the accommodation of the public. This
duty was performed by the eoll^, and It con-
tinued to occupy the terry until the Charlea
River Bridge was constructed.
From the above act of the General Court,
and others which have been shown, and the
unmolested use of the ferry for more ttuM one
tnindred and forty years by the college, tt
would seem that Its right to this use had re-
cMlved all the sanctions necessary to constitute
a. valid title. If the rifjht was not founded
atrictly on prescription, it rested on a basis
equally unquestionable.
At the time this feriy wu eitablUhed. tt waa
the only publie communication between Boston
and Chariestown. These places, and especiallj
the latter, were then small; and no greator ac-
commodation was required than was afforded
by the ferry. Its franchise was not limited, it
is contended, to tlie ferryways, but extended to
the whole line of travel between the two towns.
It cannot be very material to inquire whether
this ferry was originally public or private prop
erty, or whether the landing-places were vested
in the college, or their use onlyi *nd the profits
of the ferry. The henefleial interest in ths
ferry was held by the college, and it received
the tolls.
The regulation of the ferry, it being a mat-
ter of public concern, belonged to the govern-
ment. It prescribed the number of boato to be
kept, and the attendance necessary to be given;
and on a failure to comply with these requisi-
tions, the college would have been subjected to
tlie forfeiture of the franchise, and uie other
penalties provided by itetuto.
Was this right of terry, with all its immuni-
ties, tranHf erred to the Charles River Bridge
Company?
It is not contended that there is any express
assignment of this right by deed or otherwise;
but the complainants claim that the evidence
of the tranafer is found in the facta of the case.
Before the charter was granted, the eollege
was consulted on the subject; so soon as the
bridge was constructed, the use of the ferry
ceased; *and the college has regularly [*55B
received from the complainants the annuity of
two hundred pounds. This acquiescence. It
is contended, taken in connection with the
other facts in this case, goes to establish the re-
linquishment of tbe right to the ferry for the
annual compensation required to be paid under
the charter.
That there was a substitution of the bridge
for the ferry, with the consent of the college,
is evident; but there seems to have been no as-
signment of the rights of the ferry. The origi-
nal bridge charter was granted for forty years;
at the expiration of which period, the property
of the bridge was to revert to the Common-
wealth, "saving to the college a reasonable
and annual compensation for the annual fai-
come of the ferry, which they might have re-
ceived, had not said bridge been erected."
Had the bridge been destroyed by Are or
otherwise, there wis no investiture of right to
the ferry in the complainants, that would have
enabled them to keep np the feny, and reftlitj
the proflti of it.
On the destruction of the bridge, the coUtM,
it is presumed, might have resumed all tM
rights and responsibilities attached to the
feriy. At least, it is very clear that these rishti
and responsibilities would not have devolved on
the complainanta. They stipulated to afford a
different accommodation to the public. If, then,
these rights could not have been claimed and
exercised by the complainants, under such dr-
cumstanees, how can they be considered as en-
larging, or in any way materially affecting thi>
franchise under tbe charter of ITSSt
That the franchise of a ferry at emnmon law,
and In the Btato of Hasaachusetta, extends be-
Rep. (12, noU; li BMt, 330i Q Bare. 4 Cna.
SuVBUfK COOBT or THE USITBI StATM.
7(13 j Tur Book, Hen. TI. tX; Bolle't Abr.
140; Fiti. 4S8, nota; Com. Digut, Uarket, C.
Si FiKUT, B. Action on the Cmc, A; 3 Blk.
8ig; Nott k WCard, 387i 2 Saund. 172; 0 Mod.
22B; 2 Vent 344; 3 Levini. HO; Com. Dig.
Pstent, F. t, S, 0, 7i 2 Saimd. 72, note 4j
£ Tiut. 406; Chit. Pre. IS, eh. 3; 10 ch. 2;
3 Balk. 108; Wi11e«, fil2; 4 Tenn, 6M: Skiud.
114; Croke, E. 710.
^e uinuitf given to the college vaJ a eom-
penMitton for the profit! of the ferrf, and ihom
a wiDingneu bj the coHege to autpend it*
rights to the ferry, during the time •pecified in
the tct And if indeed it might be eon*tru«d
into an abandonment of the ferrj, atill It was
am abandonment to tha public, on the termi
■pccified, for a better accommodation.
5ftT*] 'The bridge waa detigned not only to
anawer all the purpoiea of the ferry, but to en-
large the public conve&ienca. The profiti eon-
tanplated by the oorporatoia ITU's not onlyl
thMS which had been realized from the ferry,
but luh aa would ariae from the increaaed fa-
dlitiea to the public.
Tf there naa no aaaignment of the ferry fran-
chise to the complainants, its extent cannot be
a matter of importance In this investigation;
not is It Beceaaary to inquire into the effect of
ment, under the circumstance! of ths
There is no provision in the act of Incorpo-
ntion vesting the company with the privileges
of the ferry. A reference is made to it menely
with tha view of fixing the lite of the bridge.
The right and obligations of the complainants
muat he ascertained by the conatruction of the
Act of 1T6S.
This act must be oonaidered In the light of a
ecnitract, and the law of contracta applies to it.
In one sense it is a law, having passed through
all the forma of legislation, and received the
neeesaary sanctions; but it ia essentially a con-
tract, aa to the obtisations imposed by it, and
the privileges it confers.
llueh dianusion haa been had at the bar, as
to the rule of construing a charter or grant,
and many authorities have been referred to on
thia point. In ordinary casea, a grant ia con-
atrued favorable to the grantee, and against the
grantor. But It ia contended that in govern-
mental grants, nothing Is taken by implication.
The broad rule, thus laid down, cannot be
a liy implication. Whatever is essential to
the enjoyment of the thing granted, muat be
taken by implication. And thia rule holds
good, whether the grant emanate from the royal
prerontive of the King in England, or under
•N act of legislation in this country.
The general rule is that "a grant of the
king, at the anit of the grantee, is to be con-
strued most beneficially for the king, and moat
atrietly against the grantee;" but grants ob-
tained aa a matter of special favor of the king,
or on a eonsideration, are mare liberally con-
strued. Oranta of limited political powers are
construed strictly. (Com. Dig. tit. Grant, B.
S; 2 Dane's Abr. 683; 1 Nott t M'Cord, SUrk
T. U'Oowan, Pop. 7S; Moore, 474; S Coke, B2;
• Bam. ftCrea. 703; 6 lb. 876; 3 M. ft B. 247;
Bargiave, 18 to 23; Angel on Tide Water, 106,
T| 4 Bon. 21filj 4 Dun. * Eaat, 48Bt i Boa.
•« PnU. 472; 1 Turn. 60»t 1 Gond. H«n. [*M*
3S2; 17 Johna. IBS; 8 H. 4 & 247; 0 iUm.
437; 1 Uaas. 231; IT Haaa. 28B; Aud, lOB; 4
Mass. 140, 022; Bac Pre. T. 2; Plow. 93«. T;
Grant, S, 12; Bac. tit. Prerog. 2| B Bam.A
Crea. 8711; 1 Idaai. 3«l.)
Where the Leeislature, with a view ot l^-
vaneing the public interest l^ the oonstruettoi
of a bridge, a turnpike road, or any other work
of public utility, grauta a eharter, no reascm la
perceived why such a eharter should not ba
cosatrued by the same rule that govcni oon-
tracta between individuals.
The public, through their agent, cntv into
the contract with the company, and a valuable
consideration is received in the oonstructiOD of
the contemplated improvement. This oonaid-
eration is paid by the company, and sound
on the case of The Stourbridge Canal
Wheeley et al. (2 Ban. t Aid. 702).
The question in this case was, whether the
plaintiffs had a ri^t to charge toll in certain
caaea, and Lord Tenterden said, "the eanaJ
having been under the provisions of an act of
Parliament, the righta of the plaintiff are de-
rived entirely from that act. Thia, like many
other casea, la a hargain between a comjlany of
adventurers and the public, the terms of which
are expressed in the statute; and the rule of
eonatruction in all such caaea, is now fully «•-
tabliahed to be this — that any ambiguity in the
terms of the contract muat operate against thr
adventurers, and in favor of the public; and
the plaintiffs can claim nothing which is not
clearly given to them by the act."
This la relied on to show that nothing ia
taken, under such a grant, by implication or
inference. Eis lordship says the right must
be dearly given — he doea not say ezproaalj
given, which would preclude all inference. In
pany have no right, expressly given, to r
any compensation, except the tonnage paid for
goods carried through some of the locks on the
canal, or the collateral cuts; and it is therefore
incumbent upon them to show that they have a
right, clearly given by inference, from aome of
the 'other clauses." May this right be [*SBk
shown by inference; and ia not this Implica-
The doctrine laid down in this case ia aimplf
this: that the right to charge the toll must bo
given expressly, or it must be clearly made out
by inference. Doea not this case establi^ the
doctrine of implication, as applied to the oon-
struction of grants I b not tne right to paaa
by-laws incident to a corporation! A right
cannot be claimed by a corporation, under sim-
biguoua terms. It muat clearly appear to havw
been granted, either in express terms, or fay in-
ference, as stated by Lord Tenterden.
A corporate power to Impose a tax on tltc
land of the company, as considered in the eaao
of Beatty v. The Lessee of Knowler {4 Peters,
1S8| , must, in its nature, be strictly eonstrned;
and ao ia all oaaea where corporate powers, ia
lUt
ttn CsuiLn ttirta Bkidox r. Tbk VfAxmt Budgi kt ai.
tit* tatnra of b^ilktlon, u* nerelMd. In
that cue, the directore were autboriied to tm-
poae a U,x under eertaln dreunuUtnceti and
the court held thkt they hftd no power to [m-
poBO the tax under other circumstances.
Charles River being a navigable stream, any
•bstructions to its navigation hy the erection of
t, bridge, or anj other work, would have been
punishable, unless Buthorlsed by law.
B)' tlie Act of 178S, the complainant* were
autboriced to bujld the bridge, elect their of-
Aoera, etc., and charge oertain rates of toll. The
power to tax passengers, waa the oonsideration
on which the expense of building th« bridge,
lighting it, etc., and keeping it in repair, was
tncurred. The grant, then, of tolls, wsa the ea-
lantial part of the franchise.
That course of reasoning which would show
the consideration to consist ia anything short
«f this power to tftx, and the profit arising
therefrom, is too refined for practical purposes.
Ths huitders of the bridge bad no doubt a de-
■Ir* to increase the public accommodation; but
tfaej looked chiefly to a profitable investment
of tbeir funds; and that part of the charter
which secured this object, formed the eonsid-
•ration on which the work was performed.
But, it ii said, there was no exclusive right
fivHi; and that consequently the Legislature
might well cause another bridge to be built,
whenever, in thetr opinion, w pablio oon-
Tcnience reijuired it.
On the other hand. It Is insisted that the
franehise of the bridge was aa extensive aa
that of the ferry, and that ths grant of this
tmnehise having been made hy the Legislature,
it had no power to grant a part of It to tha
5«0*] *That thit part of the case presents
wnuldcratlons of great Imports nee, and of
much dlSeuIt^, eannot be denied. To inquire
into the validity of a solemn act of legislation
ta at all times a ta«k of much delicacy; but It
la peculiarly so when such inquiry ii made by
a federal tribunal, and relates to the act of a
State Legislature. There are owes, however. In
the Investigation of which such an Inquiry be-
eomea a dutyi and then no court can shrink,
nor desire to shrink from Its periortnance. Un-
der such circumstances, this du^ will always
bo performed with the high respect due to a
branch ol the government which, more than
anj other. Is clothed with discretionary powers,
and influenced by the popular will.
The right granted to the Charles River Bridge
Company, Is, in its nature, to a certain extent,
exelnslve; hnt to measure this extent, present*
the chief diOiculty. If the boundaries of this
right could be clearlr established, It would
•earcely be contended ny anyone that the Leg-
talature could, without compensation, grant to
another company the whole or any part of it.
As well night it undertake to grant a tract
of land, although an operative grant had been
previously made for the same land. In such ■
e«M Um second prant wonld be void, on the
ntmnd that the Legislature had parted with
Us cattre interest in the premises. As agent
of tha public It bad passed the title to thelrit
grantee; and having done so, tt eould aonvey
■o right bj It* second grant
The principle Is the same In regard to Um
meatlon nsder consideratloB. If the (naehls*
B^ it would be to grant k part of a tract ol
for which a patent had been previously and
regularly issued.
The franchise, though incorporeal in legal
eont«mplation, a* body and extension; and hav-
ing been granted, is not leu scrupulously
guarded by the principlea of law than an inter-
est in the soil. It is a substantive right In law,
and can no more be resumed hy the ^gislature,
when once granted, than any other right.
But would it not be unsafe, it Is suggea
for the judicial authority to interpose r
limit this Exercise ol legislative discretion t
The charter of the Warren Bridge, it is said,
was not hastily granted; that all the circum-
stances of the case, year after year, were duty
examined by the Legislature: and at last the
act of incorporation was passed, because, in
the Judgment of the legislature, the puhlis
■accommodation required it; and it is ['ftSl
insisted that the grant to the complainanta waa
necessarily subject to the exercise of this dis-
cretion.
It is undoubtedly the province of the Legis-
lature to provide for the public exigencies, and
the utmost respect is always due to their acts;
and the validi^ of those acts can only be que*-
tioned judieiuly, where they Infringe upon
priTste rights. At the time the Charles River
Bridge was built, the population of Boston and
CharTestown was small in oomparison with
their present numbers; end it is probable that
the increase has greatly exceeded any calcula-
tion made at the time. The bridge was suffi-
cient to accommodate the public, and it was,
perhaps, believed that it would be sufTlcient,
during the time limited in the charter. If,
however, the increased population and Inter-
course between these towns and the surround-
ing country required greater accommodatim
than was afforded by the bridge, there can be
no doubt that the Legislature could make pro-
vision for it.
On the part of the complainants' counsel, tt
Is eontended. If increased ladlitie* of jnter-
eourse between these places were required by
the public, the Legislature was hound in good
faith to give the option to the Charles River
Bridge Company either to enlarge their bridge
or construct a new one, a* might be required.
And this argument rests upon the ground that
the complainants' franchise included the whole
line of travel between the two places.
Under this view of their rights, the company
proposed to the Legislature, before the new
charter was granted to the respondents, to do
anything which should be deoned requisite for
the public accommodation.
In support of the complainants' right, in thin
respect, a ease i* referitMl to in 7 Bam. ft Ores.
40, where it is laid down that the lord of an
ancient market nay, by law, have a right to
prevuit other penons frran selling goods In
their private houses, situated within the limit*
of bii franchise; and also to S Barn, ft Ores.
303. These eases show that the grant to tho
lord of the market is exclusive; yet, if the
place designated for the market is made too
small by the act of the owner, any person may
sell In the vieinity of the maricet, wlttiout i»
«1
SupBEMK Cotinr of tbb UnrrBD Statbb.
tmntiug ftBj ruponiibility to the lord of th:
Suppose the LeftisUture had puMi-d t, law
K«2*] requiring the compkinant* *to enlargt?
their bridge, or construct a new one, would
tbey have been bound by itT Might the; have
luit replied to the LetfisUture, we have con-
Btruct«I our bridge of the dimentioni required
bj the charter j we have, therefore, provided
for the public all the accommodation which
we are bound to give. And if the Leglalature
•ould not require this of the complainant*, ia It
not clear that thej cannot assert an exclusive
daim to the advantages of an enlarged accom-
MOdation. Jn common with otiier citiEens,
they submitted propositions to the Legislature,
but they could urge do exclusive right to afford
anj accotninodation beyond what was given by
their bridge.
When the Charles River Bridge was built, it
waa coDsidered a work of great ina<;iiituile. It
was, perhaps, the ilrst experiment made to
throw a brid^ of such length over an ana of
the sea; and in the construction of it grt-at risk
■nd expense were incurred. The unrcslricteiT
protlta con tpm plated, were necensury tu inilure
or justify the undertaking. Si)p|H)!'!' nitiiin
two or thrcs years after the Churlpa River
Bridge had been erected, the Lef^islaliire hA I
authorized another bridge to be built alonji^iile
of it, which could only accommodate the same
line of travel. Whether the protita of sucli h
bridge were realiied by a company or by the
Btate, would not the act of the Legislaturi'
have been deemed so gross a violation of th<?
righta of tbe complainants, as to be condemne.l
t^ the common sense and common justice of
mankind T
The plea, that the timbers or atone of th«
new bridge did not interfere witli the old one,
eouhl not, in such a case, have availed. The
value of the bridge is not estimated by thu
quantity of timber and stone it may contain,
but by the travel over it. And If one half or
two thirds of this travel, all of which might
conveniently have passed over the old bridge,
be drawn to the new one, the injury is mui^li
greater than would have been the destruction
of the old bridge. A reconstruction of t)ie
bridge, If destroyed, would secure to the
company the ordinary profits; but the division
or destruction of the profits, by the new bridge,
TUDi to the end of the charter of the old
one. And shall it be said, that the greater in-
jury— the diversion of the proflts — may be in-
flicted on the company with impunity; while
for the less injury— the destruction of the
bridge — the law would give an adequate rem-
edy!
I am not here about to apply the principles
which have tieen long established in England,
for the protection of ancient ferriea, markets,
B63*] 'fairs, mills, etc. In my opinion, this
doctrine, in its full extent, is not adapted to
the oondition of our country. And it is one
of the most valuable traits in the common law
tbat it forma a rule of right, only in cases
and onder eircumstancea adapted to its princi-
plea.
In this country there are few rights founded
on pretcriptloQ. The settlement of our coun-
try is comparatively racent, and its rapid
growth in population and ad*aBM in inprove*
ments have prevented. In a great degn^ In-
terests from being acquired by imraemoilnl
usage. Such evidence of right ia found in conn-
tries where society has became more flxed, and
improvements are in a great degree stationary.
But without the aid of the prmciplea of the
common law, we should be at a lose bow to
construe the charter of the eomplaioanta, and
ascertain their ri^ts.
Although the complainants cannot flx their
froncbise by showing tbe extent of the ferry
rights, yet, under the prineiplea of the eom-
mon law, which have been too long settled In
Massachusetts, in my opinion, to be now shak-
en j they may claim their franchise beyond tbe
timbers of their bridge. It they may go be-
yond these, it is contended that no exact limit
can be prescribed. And because it may be
difficult, and perhaps impracticable, to (ieaig-
nate with precision the exact limit; does it f«-
low that the complainants' franchise is •■ nar-
row as their bridge.
It is mare difficult to define, with reasonable
certainty, the extent of this right, than it is, in
many other cases, to determine the character
of an offense against the laws, from estab-
lished facts. What shall constitute a public or
private nuisanceT What measure of individual
uTong shall be sufficient to convict a person of
tlie latter! And what amount of inoonvenienee
to the public shall constitute the former t
Would it be more difiicult to define the com-
plainants' franchiss than to answer these ques-
tiimsT And yet public and private nuisaaoM
are of daily eogni7.ance in oourta of justice.
How have ferry righta, depending upon the
same principles, been protected for centuries
in England!
The principles of the common law are not
applied witli that mathematical precisi<Hi, of
H'hich the principles of the civil law are sus-
ceptible. But if the complainants' franchise
cannot be measured by feet and Inchea, it does
not follow that they have no righta.
In determining upon facta which establish
rights or wrongs, public *as well as [*ftC4
private, an exercise of judgment is indispensa-
ble; tbe facts and circumstances of ea«b caaa
are considered, and a sound anu l^al conelo-
sion is drawn from them.
The bridge of the complainants waa substi-
tuted for the ferry, and it was designed to ac-
commodate the courae of travel between Boston
and Charlestown. This was the view of tlie
Legislature in granting the charter, and of the
complainants in accepting It. And if it be ad-
mitted tbat the great increase of population
this ana of the sea, that can afTord no protec-
tion to the defendants. If the interests of the
complainants have been remotely injured by
the construction of other bridges, docs tbat
give a license to the defendants to inflict on
them a more direct and greater injury! By
an extension of the complainants' charter thir-
ty years, an indemnity waa given and accepted
by them for the construction of the West Bon-
ton Bridge.
The franchise of the complainants muat ex-
tend a reasonable distance above and below
the timber* of tbeir bridge. This distaaea
muat not be so great aa to anbjaot the public to
isn
T&B Cdableb RivEi Bbidob v. Tiik Wa^wh I
is';
MrioHi Inoonvenlence, nor bo limitei) ■■ to au-
thoriie u, ruinoui competition. It may not be
neceuaiy to iay, tliat Cur ft remote injur; me
l»w would RfTord ■ remeiiy ; but where tlie in-
JB, DO doubt can exist on tbe Biib-
V bridge, while tollB were cbargeii,
iSBBCDed the profits of the old one about one
h»1f or two thirdBi nnd now that it i» r tree
bridge by law. tbe tolls received by the com-
plainanta nre merely nnminnl. Ou what prin-
ciple of !&w run Burh an act be sustainfdl
Are riffhtB acquired under a. solemn contiBot
with the Legislature held by a more uncertain
tenure than other rlglitsT Is the I^egiela-
tive power bo omnipotent in such cases aa to
reaiune what it has granted without compen-
•ationf It will Bcs.rccly be contended that if
the Legiatnture may do this, indirectly, It
may not do it directly. If it may do it through
the instrumentality of the Warren Bridge Com-
pany, it may dispense with that instrumen-
Ulitjr.
But it Is said that any check to the exercise
«f this discretion by the LeRiiiliiture, nill op-
erate against the advanre of improvoinvnlH.
Will not a different efTect be priHtitcFd! It
CTCTJ' bridge or turnpike compan.v were liable
to bave their property wrested from them un-
der an Act of the Legixlature, without coDipen-
■ation; could mucb value be attached to such
firopertyT Would prudent men expend tbeir
unds in makini; such improvemrntn t
S65*] *Cen it l>e considered as an injurious
check to Tegislation that private property Bhall
not be taken for public purposes without com-
pensationl This restriction is imposed by the
federal Constitution, and by the constitutions
of the respect ive States.
But It has been urged that the property of
the complainants has not been taken, aa the
tolla in anticipation cannot be denominated
property. The entire value of the bridge con-
aiata in the right of exacting toll. Is not this
right property, and cannot ita value be meas-
nredt Do not past receipta and increased in-
tercourae, alTord a rule by which future receipts
may be estimated? And if the whole of these
toUa are taken under an act of the Legislature,
i* not the property o( the complainanta taken I
The charter of the complainants has been
eompared to a bank charter, whicfa implies no
obligation on the Legislature not to establish
another bank in the same place. This te often
done; and it is contended that for the conse-
quential injury done the old bank by IcHSnning
ita profits, no one supposfs that an action
would lie, nor that the second charter is ureon-
atitutional. Tliis case benrs little or no analogy
to the one under conaideration. A bank may
wind np its business, or refuse its discounts, at
the pleasure of its stockholders a--d directors.
They are under no oblieation to carry on the
operations of the institution, or alTord any
•mount of accommodation to the public. Not
•o with the com pi a i nan tB. Under heavy pen-
altisB they are obliged to keep their bridge in
repftir, have it lighted, the );atea kept open, and
to p«y two hundred pounds annually to the
college. This the complainant* are bound to
do, although the tolls received should scarcely
r for the oil consumed in the lamps of the
ETSge
the tolls of the complainanta, but it haa left
tliera in pnsseBSion of their brid^. Its stones
and timbera are untouched, and tiie roads that
lead to it remain unobstructed.
One of the counsel in the defense, with em-
phasis, declared that the Legislature can no
more repeal a charter, than it can lead a citiies
to tbe block. The Legislature cannot brine ft
cilisen to the block; may it open his arteriMt
It cnnnot cut off his head ; may it bleed him to
death T Suppose the Legislature had autbw-
ir.ed the construction of an impasaabla walL
»hich encircled the eniis of the bridge, ao •■
to prevent paaBen);ers from crossing on It. Tb*
wall may be 'as distant from the abut- [*ftct
menta of the bridge as thB Warren Bridge,
Would this be an infringement of the plain-
titts' traochiseT On the principles contended
for, how could it be so considered I If tha
plaintids' franchise is limited to their bridfe,
then they are not injured by the construction
of this wall; or, at least, they are without rem-
edy. This wall would he no more injurious to
the plnintifls that the free bridge. And tht
plaintiffs might be told, aa alleged in this e*ae,
the wall does not touch your bridge. You ara
IcFt in the full exercise of your corporate fa»
ulticB. Vou have the same right to charge toll
The Legislature had the aame right to de-
stroy the plaintifTs' bridge by authorizing tha
construction of the wall, as they had by au-
thorizing the construction of a free bridge, in
deciding this question we are not to consider
what may he the law on this subject in Penn-
sylvania, Maryland, Virginia or Ohio, but what
it is in Massachusetts. And in that State the
doctrine has been sanctioned that association*
of men to accomplish enterprises of iioporttuio*
to the public, and who have vested their fund*
on the public faith, are entitled to protection.
That their rifjhts do not become the sport of
popular excitement, no more than the righta of
other eitiieiis. The ease under consideration
forms, it is believed, a solitary exception to this
rule; whether we look to the action of the
Legislature, or the opinions of the dlatinguiihed
jurists of the State, on tbe bench and at the
The expense of keeping up the bridge, and
taying the annuity to the college, la all that ia
:lt by the State to the complainants. Had
this been proposed, or anything which might
lead toi, such a result soon after the construc-
tion of the complainants' bridge, it is not prob-
able that it would have been sanctioned; and
yet it might aa well have been clone then oa now.
A free bridge then could hg-ve been do more in-
jurious to the plnintiffs than it is now. No re-
flection is intended on tbe Commonwealth at
Massachusetts, which ia so renowned in our
history for its intelligenir, virtue and patriot-
ism. She will not withhold justice, when the
rights of the complainants shall be established.
Much reliance is placed on the argument, in
the case repotted in 4 Peters, 560. in which It
was decided that a law of the SUte of Rhode
island, imposing a tax upon banks, is constitu-
tinnal. Aa these banks were chartered by the
Slate, it was contended that there was no im-
plied obligation on the Legislature not to tax
them. That if 't)-!* power could be [•681
exercised, it might be carried ao far a* to de
•St
■n
euriKMB Covn OF thb UvmB Statbi.
■•n
■tro]' the bunka. But thfi court auiUfned the
rig&t of the State to tax. The anftlog; between
tbe two caaee ia not perceived. Don it follow,
bec«uM the eomnla.iii&iitB' bridge is not exempt
from taxation, that it may be deetroyed, or ite
ralue greatly impaired by any other meanat
The power to tax extends to every description
of property held within the State which is not
■pecially exempted, and tliere Is no reason or
juetice in withholding from the operation of
titii power, property held directly under the
grant of the State.
The complainants' charter has been called a
monopoly, but in no Juat aenae can it be so con-
sidered. A monopoly ia that which has been
granted without consideration; as a monopoly
of trade, or of the manufacture of any particu-
lar article, to the excluaion of all competition.
It ia withdrawing that which ia a common
right from the community, and vesting it in
one or more individuals to the excluaion of ail
others. Such monopolies are justly odious, as
tbey operate not only Injuriously to trade, but
against the general prosperity of society. But
the accommodation afforded to the public by
the Charles River Bridge, and the annuity paid
to the college, constitute a valuable considera-
tion for the privilege granted by the charter.
The odious features of a monopoly do not,
therefore, attach to the charter of the plaintifTa.
The 10th article of the declaration of rights
In the constitution of Hasaachusetta, provides
"Whenever the public exigencies require that
the property of any individual ehould be appro-
priated to public uses, be shall receive a rea-
aonable compensation therefor." And In the
12th article it ia declared that "no subject shall
be deprived of his property. Immunities, privi-
l^fes or estate, but by the judgment of bia
pcen or the law of tbe land." Here ia a power
ncogniaed in the sovereignty, and ia incident
to it, to apply private property to public uses
by making for it a just compensation. Thia
power overreach ea every other, and must be
exercised at the discretion of the government;
and a bridge, a turnpike road, a tract of land,
or any other property, may l>e taken in whole,
or in part, for public purposes, on the condi-
tion of making compensation.
In the case of Chadwick v. The Proprietora
of the Haverhill Bridge, reported in Dane'a
Abridgment, it appears that a bridge was built
nnder a charter within forty rod* of the plain-
tiff's ferry, and over the same water. By an act
of the Legislature, commissionera were author-
ised to ascertain the damages sustained by the
SCS*] plaintiff; 'but he preferred his action
at law, which was prosecuted, and adequate
damages were recovered. It is true, thia mat-
ter waa referred to arbitrators, but they were
men of distinguished legal attainments and
great experience, and they, after determining
that the plaintiff could sustain his action, as-
sessed the damages. This award waa sanc-
tioned by the court. Under the circumstancea
of this case, at least aa great a weight of au-
thority belongs to it as if the decision had been
made by a court on the pointa Involved. The
case presented by the complainant* la much
atroRger than Chadwick's; and if be waa enti-
tled to reparation tor the injury done, no doubt
the SUte of Ohio, ■ free brldn ma thron
across a stream by the aide of a toll bridge,
which had some ten or fifteen years of its char-
ter to run. Tbe new bridge did not ia the
least obatruct the passage over the old one, auid
it WM» contended that aa no exclusive right iraa
given under the first grant, tiie owner of tb«
toll bridge was entitled to no compenaatiom.
It waa aaid on that occasion, as it has baea
urged on thia, that the right waa given subject
to the discretion of the L^ialature, as to a sub-
sequent grant; and that the new bridge oould
not be objected to by the first grantee, whether
it was built under the authority of the State or
federal government.
Thia courae of reaaonlnr influenced a dnci-
aion against the claimant m the flrat instantw;
but a recon aide ration of bia case, and a tuure
thorough investigation of it, induced the proper
authority to reverse the decision, and awarii an
indemnity for the injury done. The value of
the charter was estimated, and a just compen-
sation was made. This, it is true, was not a
i'udtcial decision, but it waa a decision of tb«
igh functionaries of the government, and ia
entitled to respect. It was dictated by that
sense of justice which should be felt on tfao
bench, and by every tribunal having the poorer
to act upon private rights.
It is contended by the respondents' eoun«d
that there waa not only no exclusive riglit
granted in the complainants' charter, lieyond
the timbers of the bridge, but the broad ground
ia assumed that the Legislature had no power
to make auch a grant; that they cannot grant
any part of the eminent domain, which ahall
bind a subsequent Legislature. And a number
of authorities were cited to sustain their poai-
tion. 1 Vattell, oh. 9, sec. 101; 4 Litt. R.
327; Domat. bk. 1, tit. B, sec. I; IT Vin. 88;
Chitt. on Frer. 81; 10 Price, 360; Puff.
*cfa. S, aec. T; 5 Cowen, 658; 0 Wheat [*S6»
693; 20 Johns. R. 26; Hargrave's Law TracU
30; 4 Gill ft Johns. 1.
If thia doctrine be sustainable, as applied to
thia case, it ia not perceived why an exception
ahould be made in favor of the {^aintiff*, with-
in the timber* of their bridge, it is admitted
that their grant ia good to this extent; and if
the Legislature may grant a part of the emi-
nent domain to thia extent, why may it not oo
beyond it! If it may grant any part of th«
eminent domain, must not the extent of the
grant be fixed at ita discretion T In what other
mode can it be determined than by a judicial
construction of the granti
Acts of Incorporation, when granted on a
valuable consideration, assume the nature o(
contracts; and vested rights under them are no
more subject to the legislative power than any
other vested rights. In granting the charter to
the Charles River Bridge Company, the Leg-
islature did not devest itself of tbe power to
grant aimitar charter*. But tbe thing granted
paoaed to the grantee, and can no more be m-
sumed by the L^alature, than it can resume
the right to a tract of land which haa bcea
granted. When land is granted, the State eaa
exerciae no acta of ownership over it, unleM it
be taken for publie uae; and the same rule ap-
pliea to a grant for a bridge, ■ turnpike roao,
or any other public improvement It wovM
aasume a bold poaitton to a» that a lubaeqaat
Petsn 11-
tam Chablcb Rivo ituDOE r. tHc Wasbir ttUMs n ai.
tK3T
Lcgiilature mftj reaume the ownersbip of a
tract of land wbioh had been gimoted at a pre-
eadiiig (euion; and jet the principle is the
ume in regard to vested rights, under an act -'
ineorporation. By granting a franchise, t
State doe* not devest itself of any portion of its
sovereignty^ but to advance the puolie interests,
DBS or mora individuals are vested with a
capacity to exercise the powers necessary to
attain the desired object In the case under
oonai deration, the necessaiy powers to eon-
■truet and keep up the Charles Biver Bridge
were given to Thom»8 Rusaell and bis asso-
dates. This did not wilLdraiv the hridge from
the action of the State sovereignty, any more
than it is withdrawn from land which it has
granted. In both cases the extent of the
grant may become a question for judicial fn-
TMtigalioR and decision; but the rights grant-
ed are protected by the law.
It is insisted that, as the complainants ac-
Mpl«d the extension of their charter in 1792,
ander an express assertion ol right by the Leg-
islature to make new grants at its discretion,
they cannot now object to the respondents'
charter. In the acceptance of the extended
charter, the complainants are bound only by
610*] the provisions of that 'charter. Any
general declarations, which the Legislature
may have made, as regards its power to grant
eharten, eould have no more bearing - *' -
rights of the complainants than on
rights throughout the State. There
reservation of this power in the prolonged
•barter, nor was there any general enactment
on the subject. Of course, the construction of
the cliarter must depend upon general and
tablished principles.
It iias been decided by the Supreme Court
of New York, that unless the act making the
appropriation of private property for publle
use, contain a provision of indemnity, it Is
Toid. Where property is taken under great
omergencies, by an officer of the government, he
eould hardly be considered, I should suppose,
a trespasser; though he does not pay for the
property at the time it is taken.
Iliere can be no doubt that a compensation
ahmild be provided for in the same act which
naUioriaea the appropriation of the property,
(» in a contemporaneous act. If, however, this
b* omitted, ana the property be taken, tlie law
unquestionably gives a remedy adequate to the
damages sustained. No government which rests
■pon the basis of flied lava, whatever form it
Btny hftva aasnmed, or wherever the sovereignty
may reside, has asserted the right, or exercisM
the power of appropriating private property to
pobue purposes, without maVing compensation.
In the 4th section of the not to caUblish the
Wftrren Bridge, there Is a provision that the
corporation snail make eompensation for any
real estate that may be taken for the nie of tiia
bridse. ^e proper^ ol the complainants,
wfaieh was appropriated under the new charter,
oumot strietly be denominated real estate; and
guently this special provision does not
_ .. Ii their easfc In this respect the law must
■tnnd M though no luch provision liad been
But waa the complalnanta' property appro-
printed under the imarter granted to the re-
■pondents for pihlie puipoMct If tin new
• &. ad.
bridge were deemed necessary by the Legiela<
tnre to promote the general convenience, and
the defendants were eonscfluently authorized to
construct it, and a part ol the ptaintifTs' fran-
chise were granted to the defendants; it was an
appropriation of private property for puUic use.
It wag as much an appropriation of private
property for public use as would have been an
appropriation of the ground of an individual,
for a turnpike, or ■ railroad, authorised b]r
law.
By the charter of the Warren Bridge, so soon
as the company should be re-imbuned the
money expended !n the eonstruction of the
bridge, the expenses incurred in keeping it up,
and Qve per cent, 'interest, per annum, ['ftll
on the whole amount, the bridge was to become
the property of the State; and whether these
sums should be received or not, it was to be-
come public property in six yean from the
time it was completed. The cost of construc-
tion, and the expenses, together with the Ave
per cent, interest, liave been re-imbur»ed, and
in addition, a large sum has been received \>f
the State from the tolls of this bridge. But ft
is now, and has been since March last, it is ad-
mitted, a free bridge.
In granting the charter of the Warren Bridge,
the Legislature seem to recognize the fact thiU
they were about to appropriate the property of
the complainants for public uses, as they pro-
vide that the new companv shall pay annual^
to the college, in behalf of the old one, a hun-
dred pounds. By this provision, it appears
tliat the Legislature has undertaken to do what
a jurv of the country only could constitution-
ally do — assess the amount of compensation to
which the complainants are entitled.
Here, then, is a law which not only takes
away the property of the complainants, but
provides, to soms extent, for their indemnity.
Whether the complainants have availed them-
selves of this provis^tn or not, does not appear,
nor is it very material. The law, in this r»
speet, does not bind them; and they are en-
titled to an adequate oompenKation for the
property taken. These considerations belong
to the ease, as It arises under the laws and con-
stitution of Massachusetts.
which the case is presented. The jurisdiction
of this court is resisted on two grounds. In
ths first place, It Is eontended that the Warren
Bridge has become the property of the State,
and that the defendants have no longer any
control over the subject; and also that the
Supreme Court of Massachusetts have no Juria-
diction over trusts.
The chancery jurisdiction of the fiuprems
Court of Hassachusetts is admitted to be lim-
ited; but they are specially authorized in reins
of nntsaneea, to Issue injunctions; and whers
this ground of jurisdiction is sustained, all the
incidents must follow it. If the law incorpo-
rating the Warren Bridge Company was un-
constitutional, on the ground that it appro-
priated to publle use the property of the eom-
plsinants without making oompensatlou eaa
there be any doubt that the Supreme Court
of Massachusetts had jurisdiction of the easel
And having Jurisdiction, is It not clear thai
"" whole nattai in OMtiaversy may b* '■'t-
m
Burauu Coon or the UHitiD ^Itatis.
tl«d by • decree th^t the detend&Dta shall
572*] 'kecount to the eompltuDants for man
m received by them »fter thoy had notice
ot the injunetion t
ft U ftlao liuiBted that the Slate ii the sub
Btantial party to this suit, and as the court
ha* no juriidlctioD agajnat a •overeign State,
that they can auatain ao jurisdiction against
those who act as agents under the authority
of a State. That i/ such a jurisdiction were
asserted by this court, they would do indi-
rectly what the law prohjbita them from do-
ing directly.
In the caM of Osborn et al. *. The Bank of
the UniUd SUtes, 9 Wheat. 733, this court
saysi "The circuit courts of the United States
have jurisdiction of a bill in equity, filed by
tjie Bank of the United States lor the purpose
of protecting the bank in the exercise of its
franchises, which are threatened with i
■ion and destruction under an unconstituti
State law; and as the State itself cannot be
made a defendant, it may be maintained against
the officers and agents of the State who ~
appointed to execute such law."
As it regards the question of juriadicti
this case, in principle, is similar to the i
under consideration. Osbora acted as the agent
or officer of the State of Ohio in collecting from
the bank, under an act of the State, a tax or
penalty uncoostitutionally imposed; and if in
•ucb a ease jurisdiction could be lustained
against the agent of the State, why can it not
be sustained against a corporation acting us
•gent under an unconstitutional act of Mas-
sachusetts, in collecting tolls which belong to
thf plaintilTsI
In the second place it is contended that this
eourt cannot take jurisdiction of thie case un-
der that prOTision of the federal Constitution
which prohibits any State from inipairinu the
obligation of contracts, as the charter of the
compiainantt has not been impaired. It may
be necessary to ascertain, definitely, the mean-
ing of this provision of the Constitution, and
the judicial decisions which have been made
under it.
Wliat was the evil against which the Con-
stitution intended to provide, by declaring that
no State shall pass any law impairing the ob-
ligation of contractsl What is a contract, and
what is the obligation of a contract!
A contract is defined to be an agreement
between two or more persons to do or not to do
» particular thing. The obligation of a con-
tract is found in the terms of the agreement,
sanctioned by moral and legal principles.
The evil which this inhibition on the States
BTt*] was intended to prevent, 'is found in
the history of our Revolution. By repeated
acts of legislation in the different States, dur-
ing that eventful period, the obligation of con-
tracts was impaired. The time and mode of
payment were altered by law; and so far was
this interference of legislation carried, that
confidence between man and man was well-
nig^ destroyed. Those proceeilings grew out
of tiie paper system of that day; and the in-
juries which they intltcted, were deeply felt in
the eouotry at the time the Constitutiun was
■doptod. The provision was designed to pre-
TCnt the Statea from following the precedent
•f bgiBlation, so demoraliiing in its effecta,
U4
and BO destructive to the commercial proaperl^
of a country. If it had not been otherwise
laid down in the case of Fletcher t. Peck, (
Cranch, 125, 1 should have doubted whethn
the inhibition did not apply exclusively to es
ecutory contracts. This doubt would havA
arisen as well from the consideration of the
mischief against which this provision was In-
tended to guard, as from the language of tlte
provision itself.
An executed contract is the evidence of a
thing done, and it would seen, does not neces-
sarily impose any duty or obligation on either
party to do any act or thing. If a State con-
vey land which !t hud previously granted, the
second grant is void ; not, it would seem to me,
because the second grant impairs the obligation
c' the Arst, for in [act it does not impair it;
but because, having no interest in th£ thing
granted, the State could convey none- The
second grant would be void in this country,
on the same ground that it would be void in
Enjjland if made by the litng. This is a princi-
ple of the common law, anil is as immutable
as the basis of justice. It derives no strength
from tlie above provision of the Const itution.
nor does it seem to me to come within the
scope of that provision.
\^'heIl we speak of the obligation of a eon-
tract, the mind atema necessarily to refer to an
executory contract; to a contract under which
something remains to be done, and tlirre is an
obligation on one or both of the parties to do
it. No taw of a State shall impair this obliga-
tion, by altering it in any mateiinl part. This
prohibition does not apply to the remedy, but
to the terms used by the |inrties to the agree-
i which Ax their respective rights and
obligations. The obligation, and the mode of
enforcing the obligation, are distinct things.
The former consists in the acta of the parties,
□il is ascertained by the binding words of the
liilract The other emanates from the law-
laking power, which may lie exercised at the
iscretion of the Legislature, within the pr«-
;ribed limits of the Constitution. "A I'M*
lodiflcation of the remedy for a breach of tha
jnti'oct does not, in the sense of the Constitu-
on, impair its oblinntion. The thing to be
anc, and the time of performance, remain on
the face of the contract in all their binding
force upon the parties; and these are shielded
by the Constitution from legislative interti,-!^
On the part of the complainants, it is con-
tended that on tlie question of jurisdiction, as
ference to any other matter in coolroversyi
the court must look at llie pleadings, and de-
cide the point raised in the form presented.
The bill charge* that the act lo estxtlish tb«
Bridge, purports to grant a right rs-
pugnant to the vested rights of the complain-
ants, and that it impairs tlie obligation of the
ontract b^-'tweeu them and the Comuionwealth;
.nd, being contrary to the Constitution of tti*
United States, is void. In thiiir answer, tlir
ipundents deny that the act creating the cor-
poration of the VVarren Bridge impair* tiu. ob-
ligation of any contract set forth in the bill of
tlie compIainanU.
The court must look at the case made In tha
bill in determining any questions which may
arise, wl-itlier tUey relate to the merits or thi
Peters 11.
IftST
■ CbaBLU ItlTKB fiBIIMK T. 1^1 WAUEH BbIDUB Bt At.
674
jarhdictlon of the court. But in sither um,
thfvy «re not bound b; any technical Hlksfttiona
or rcBponsea which maj be found in the bill
aad answer. Tbej must sscertain (he nature
of the relief sought, and the ground of Juris-
diction, from the tenor of tlie bill.
In this case, the gueation of jurisdiction un-
der the Constitution is broadlj presented, and
may be examined free from technical embar-
rKSsuent.
Chief Justice Parker, in the State court, says,
in referEQce to the charter of the complainants,
"The contract of the government is that this
right shall not be disturbed, or impaired, un-
iMa public necessity demand; and if it shall so
demand, the grantees shall be indemnified."
Such a contract, he observes, "is founded upon
the principles of our Constitution, as well as
natural justice, and it cannot be impaired
without a violation of the Constitution of the
United States: and I think, also, it is against
the principles of our State constitution."
In the conclusion of his opinion, Mr, Justice
Putnam says, in speaking of the defendants'
charter: ''It impajis the obli|^tion of the
grants before made to the plaintifTa. It takes
away their property for public uses without
compensation, against tiieir consent, and with-
out a provisioD for a trial by jury. It is there-
for* ?oid."
Hr. Justice Wilde, and Mr. Justice Uurton
575*] did not consider the "new charter as
having been granted either In violation of the
Constitution of the State or of the United
SUtes.
In their decree, the court say that "no prop-
erty belonging to the complainants was talLen
and appropriated to public use, within the
terms and meauing of the 10th article of the
declaration of rights prelixed to the eonstitu-
ItoD of this Commonwealth."
This decree can in no point of view be con-
ridered aa fixing the construction of the consti-
tution of Massachusetts, aa it applies to this
(aae. The decree was entered, pro forma, and
is opposed to the opinion of two members of
the court.
But if that court had deliberately and unan-
imously decided that the plaintilfs' property
bad not twen appropriated to public use, under
the constitution of Massachusetts; still, where
the same paint becomes Important on a ques-
tion of Jurisdiction before this court, they must
decide for themselves. The jurisdiction of this
court could in no respect be considered aa a
consequence of the decision of the above ques-
tion by the State court, in whatever way the
decree might have been entered. But no em-
barrassment can arise on this bead, as the
Rhove decree was made, as a matter of form,
to bring the case before this court.
upon the fact that the right charged to be
iat«d la held directly from the State, and they
iuaiat that there is an implied obligation on
tb« State that it will do nothing to impair the
grant. And that, in this respect, the com-
plainants' right rests upon very different
grounds front other rights in the community,
not held by grant directly from the State.
On the face of the complainants' grant there
ia no stipulation that Uta Legialatuia wUl do
• U Ml.
nothing that shall Injure the rights of tbt
grantees, but it is said that this is iinplied|
and on what ground does the implication ariset
Does it arise from the fact that the roniplain-
ants are the immediate grantees of the Slatel
The principle is admitted that the grantor
can do nothing that shall destroy his deed, and
this rule appi es as well to the State as to an
individual. And the same pnnciple operates
with equal force on ali grams, wliether made
by the State or Individuals.
Does an implied obligation arise on a grant
made by the State, that the Legislature shall
do toothing to invalidate the "lant, which does
not arise on every other grant or deed in the
Commonwealth 1
The Legislature is bound by the constitution
of the State, and it 'cannot be admitted [*il7<
that the immediate grantee of the State has a
stronger guaranty for the protection of hia
vested riglits against unRonalitutional acts
than msy be claimed by any other cltiEen of
the State, Every citizen of the State, for tlie
protection of his vested rl^lits, claims the
guaranty of (he Cons titut inn. This, indeed.
imposes the strongest obligation on the Legis-
lature not to violate those riglits. Does the
Legiatature give to its grantee, by virtue of its
grant, an additional pledge that it will not
violate the constitution of the State! Such
an implication, if it exiat, can scarcely be con-
sidered as adding anything to the force of the
constitution. But Ibis ia not, it is said, the
protection which the complainants invoice. In
adilition to their property having been taken
without compensation, they allege that their
charter has been impaired by the Warren
Bridge charter; and, on this ground, they aak
the interposition of this court.
The new charter does not purport to repeal
the old one, nor to alter it in aiiy material or
immaterial part. It does not, then, operate
upon the complainants' giant, but upon the
thing granted. It has, in effect, taken the tolls
of the complainants and given them to the
public. In other words, under the new charter,
all that is valuable under the chailer of the
complainants has been appropriated to public
It is urged that the Legislature did not in-
tend to appropriate the property of the com-
plainants; that there is nothing in the act of
the Legislature which shows an intention b^
the exercise of the eminent domain, to take pri-
vate property for public use; but (hat, on the
contrary, it appears the Warren Erid^e charter
waa granted in the exercise of a legislative dis-
cretion, asserted and sustained by a majority
of the Legislature.
In this charter provision is made to Indemni-
fy the owners of real estate, if it should be
taken for the use of the brid^: and the new
company is required to pay, in behalf of the
Charles River Bridge Company, one half of the
annuity to the college.
This would seem to show an Intention to ap-
propriate private property, if necessary, for the
establishment of the Warren Bridge; and also
an Intention to Indemnify the complainants, to
some extent, for the injury done them. Thera
could have been no other motive than this. In
providing that the new company should pay
the hundred pounds.
Sunzin Otnmt of tbs Uxitb Bivn
ftnt th* oourt can aalj Jndgc of the intsntlon
t9T*] of the LegUtature *by Its langiMge;
Mul when, bj its ut, the 'nnchlse at the com-
^unantt li taken, and, tnrough the initru-
ventality of the Warren Bridge Cauipanj, ap-
propriated to the public uae, it ie difficult to
•ay that the Legislature did oot intend to do
what in fact it haa done. Throughout the
argument the eoiuuel for the eompJainanti
have most ably contended that their property
had been taken and appropriated to the public
nae without making compentationi and that
the act was conaequentlT Toid, nnder the con-
■titution of tlaaaachuaetti.
If tbia be the character of the act; If, under
It* provielona the property of the complainant!
hu been appropnated to public purrees; it
nay tie important to inquire whether it can be
oooaldered aa Impairing the oblintfon of the
contract, within the meaning or the federal
Conttitullon.
That a State may appropriate private prop-
erty to public use ie univeraally admitted.
This power it incident to eovtreignty, and
there are no restrictions on Its exercise, except
■uch as may be imposed by the aovereignty
itaelf. It nay tax at Iti discretion, and adapt
Its policy to the wants of its citixens, and use
their means for the promotion of its objects
under Ita own laws.
If an appropriatioa of private property to
public die impair Uie obligation or a contract
withim the meaning of the Constitution, then
•?ery exercise of this power hy a State is un-
oonatitutional. From this conclusion there is
no esmpe; and whether compensation be made
or not, cannot vary the result.
The provision is not that no State shall pass
a law impairing the obligation of contracts, un-
less compensation be made, but the power i«
absolutely inhibited to a State. If the act of
the State come within the meaning of the pro-
vision, the act is void. No condition which may
be annexed to it, no compensation that can be
made, can give it validity. It is in conllict
with the supreme law of the land, and is there-
tore a nulhty.
Can a State postpone the day fixed in an
obligation for payment, or provide that a bond
for the payment of m>ine^ shall be discharged
by tbs payment of anything else than money I
lliil BO one will contend can be done, because
■ndh Ml act would clearly impair the obli-
gation of the contract; and no compensation,
wlilch the State could give, would make the
act valid.
The question Is asked whethor the provision
implied in the Constitution of Uassachusatta
that private property may be taken by mak-
ing compensation, i* not impliedly incorpo-
ft7S*] rated in every oontract 'made under
Iti and whether the obligation of the contract
it not Impaired, when propert;r it taken by the
State without comptinsation T
Can the contract be impaired within the
meaning of the federal Constitution, when the
action of the State is upon the property? The
contract It not touched, but the thing covered
by the contract Is taken under the power to
appropriate private properly for public use. If
laking the property impair the obligation of
the contract, within the meaning of the Consti-
tution, it cannot be taken on any terms. Tlie
pnrialoa of the federal Constitution which
nquirM oompansattai t« bt made when pri-
vate property aluJl be taken for public sm,
act* only upon the officer* of the federal gov-
ernment. Thii case must be governed by the
constitution of Maisachusetta.
Oto a State, in any form, exercise a power
over contracts which is eipreealy prohibited by
the Constitution of the UnionT The parties
making a contract may embrace any conditions
they please, if the conditions do not contra-
vene the Taw, or it* eetablitbed policy. But it
is not in the power of a State t« impose up(^
contracts which have been made, or which nixj
afterwards be made, any condition, which ia
prohibited by the federal Constitution. No
State shall impair the obligation of contracts.
Now, if the act of a State, in appropriating
private property to public use come within th«
meaning of this provialon, ia not the act in-
hibited, and, consequently, void 1 Thia point
would seem to be too plain for eon t rove ny.
And is it not equally clear that no provisions
contained in the constitution of a State, or ia
its legislative acts, which subject the obligation
of a contract to an nnconatitutional control
of the State, can I>e obligatory upon the
citizens of tbe State! If tlie State has sit-
tempted to exercise a power which the federal
Constitution prohibits, no matter under wtist
form the power may be assumed, or what
specious pretexts may be urged in favor of
ita exerciae, the act ia unconatituticnal Mlul
That a State may take private property for
public use is controverted by no one. It is s
principle which, from the foundation of our
government, has been sanctioned by the prac-
tice of the Slates, respectively, and haa never
been considered as coming in conflict with tha
federal Constitution.
This power of the State is admitted in the
argument; but it is contended that the obli-
gation of the contract has been impaired, •*
the property of the cooiplainanls nas been
taken without compensation. Suppose the
constitution of Massachusetts provided that nn
land •should be told for taxes with- (*BT»
out valuation, nor unless it »hull sell for two
thirds of its value, due notice being given in
some newspuper; and suppose a law of the
Legislature should direct land to be sold f<w
taxes, without a compliance with _ these
requisites; would this act impair the oliligntion
of the grant by which the land is held, within
the meaning of tbe Constitution T The act
would be clearly repugnant to the State consti-
tution, and, consequently, all proceedinga under
it would be void. But it would not be repug-
nant to the Constitution of tbe Union. Aad
how does this case dider, in principle, from tbe
one under consideration 1 In both eases, the
power of the Legislature is unquestionable i
but by the constitution of the State It mnat
be exercised in a particular manner; and, it
not BO exercised, the act is void. Now, if ia
either ease, the obligation of the contract onder
which the property ia held is Impaired, thco it
must follow that every aot of a Slate Legis-
lature which affects the right of private prop-
erty, and which i* repugnant to the Stats
constitution, i* a violation of tbe fedeisl
C.onB titution.
Can the conitmetion of the federal Conatlts-
tlon depend upon a reference to a Stat* eosatt
tutioi. sad hv wkkk ths set complained <( i*
Tua C^"™ Rna Bkidoi r. Tsi Wassbi Budok et ai.
S»
kMerUined U> be legml or Illegal I Bj this doe-
trin«, the act, if dona hi oonformity to the
Btata eonititution, would be free from objee-
tioiu vnder the federal Conatitution; but tf
tbii conformity do not exist, then the act
would not be froe from luch objection. Thie,
in effect, would incorporate the State conatltu-
tioD in, and make it a part of the federal Con-
atitution. No luch rule of construction existi.
Suppose the legitlature of Maua«hu«ett4 had
tftlten the farm of the complainants for the
UM of a poor-house, or anj asylum for luna-
tics, withoot making adequate compensation;
or if, in ascertaining the damages, the law of
the State bad not been strictly pursued, could
this court interpose its jurisdiction through tha
Supreme Court of the Stale, and arrest the
power of appropriation t In any form in which
the question could be made, would it not arise
under the constitution of the State, and be
limited between citizens of the same Stat« to
tlie local jurisdiction I Does not the State eon-
■titution, which declares that private property
■liall not be taken for public purposes without
compensation afford ft tafe guaranty to the
citiEfna of the State against the illegal eier-
cise of this power; a power essential to the
well-being of every soverei^ State, and which
is always exercised under its own rules!
Had an adequate compensation been made to
B80*] the complainants, 'under the charter
of the Warren Bridge, would this question ha?e
been raised I Can anyone doubt that it was
in the power of the Legislature of Uassa-
chusetta to take the whole of the complainants'
bridge for public use, by making compensa-
tion! Is there any power that can control the
exercise of this discretion by the Legislature t
I know of none, either in the State or out of
it; but it must be exercised in subordination
to the provisions of the constitution of the
State. And if it be not so exercised, the ju-
dicial authority of the State only, between
its own citiiens, can interpose end prevent the
wrong, or repair it in damages.
In all cases where private property is taken
by a State for public use, the action is on the
property; and the power, if !t exists in the
State, must be above the contract. It does not
act on th€ contract, but takes from under it
vFSted riglits. And this power, whon exercised
by a Slate, does not, in the sense of the federal
Cunititution, impair the obligation of the con-
tract. Vested rights are disturbed, and com-
pensation must be made; but this ts a subject
which belongs to the local jurisdiction. Does
this view conflict with the tatabliahed doc-
trine of this court! A reference to the points
adjudged will show that it does not.
The eaae of Satterlee t. Mathewaon, 2 Peters,
SSO, presented the following facta: Satterlee
waa the tenant of Mathewson, who claimed at
the time of the lease under a Connecticut
title. In Luzerne County, Pennsylvania. After-
warda, Satterlee purchaaed a Pennsylvania
title for the same land. An ejectment was
brought by Mathewson for the land, and the
Court of Common pleas decided that as Satter-
' ~s the tenant of the plaintiff, he could not
pnime Conrt, on the ground that the relation
of landlord and tenant could not exist under n
Connecticut tftle. Shortly afterwards, the
Legislature of Pennsylvania passed a lawthnL
under such a title, the relation of the landlnra
and tenant should exist, and the Supreme
Court of the State having decided that this aet
was valid, the question was brou^t before this
court by writ of error. In their opinion, the
court say: "We come now to the main ques-
tion ia the cause. Is the act which is object«d
to repugnant to any provision of the Consti-
tution of the United States! It is alleged to
be particularly so, because It impairs the obli-
gation of the contract between the State of
Pennsylvania and the plaintiff, who claiou
under her grant, etc." The grant vested a foe-
simple in the grantee, with ail the rights, privi-
leges, 'etc. "Were any of these rights [*B81
disturbed or impaired by the act under con-
sideration T It does not appear from the record
that they were in any instance denied, or ever
drawn in question."
The objection most pressed upon the eonrt
was that the affect of this act waa to devest
rights which were vested by taw in Satterlee.
"There is certainly no part of the Constitu-
tion of the United States," the court aay,
"which applies to a State law of this de-
aeription; nor are we aware of any decision of
this or any circuit court which has condemned
such a law upon this ground, provided its ef-
fect be not to impair the obligation of the con-
tract." And the court add that in the ease of
Fletcher *. Peck, it ts nowhere Intimated that
■ State statute, which devests a vested right,
is repugnant to the Constitution of the United
States. There is a strong analogy between this
case and the one under consideration.
The effect of the act of Pennsylvania was ta
defeat the title of Satterlee, founded upon the
grant of the State. It made a title valid,
which, in that very ease, had been declared
void by the court, and which gave the right to
Mathewson, in that suit, against the prior
grant of the State. And this court admit that
a vested right waa devested by the act; but
they say it is not repugnant to the federal
Constitution. The act did not purport to affect
the grant which was left with its covenants un-
touched; but it created a paramount right,
which took the land against the grant.
In the ease under consideration, the Warren
I! ridge charter does not purport to repeal or in
utiy way affect the complainants' charter. But,
like the Pennsylvania act. In its effects It de-
vested the vested rights of the complainants,
Satterlee was not the immediate grantee of the
State; but that could not affect the principle
involved in the case. He claimed under Uie
grant of the State, and the fact that there waa
an intermediate grantee between him and the
State could not weaken his right.
In the case of Fielclwr v. Peck, S Cranch, 87,
the Legislature of Georgia attempted to annul
its own grant The law, under .which the Srat
grant was issued, was attempted to be re-
pealed; and all ^nts under it were declared
' be null and void by the second act. Here the
ite sLled directly upon the contract; and the
le rnmes within the hiIp that to impair the
ob1<--iiii<in of llie contract, the State law must
it upon the contract.
The act of the Legislature eomplained of in
tbc case of Bttuvie v. (kownlnshleld, 4 Oond
HI
SunaiM CoutT or the Unim Statis.
lU:
Rap. 409, htd a direct bearing apon the con-
5SS*] tract. 'The questian wbb wliethar,
nniler the bankrupt law of New York, a debtor
traa discliarged front bii obligatioa by a sur-
render of his propertj; and lo in the case ot
The TruBteea of Dartmouth College v. Wood-
ward, * Cond. Rep. 42t], the queatioii was,
whether the Legislature could, without the con-
Mnt of the corporation, alter its charter in ■
material part, it being a private corporation.
In the case of Terret et al. t. Taylor et al. S
Cranch, 62, the uncontroTerted doctrine is at-
•erted that a Le^alature cannot repeal a atat-
nte creating a private corporation, and thereby
destroj vesti'd right*.
The case of Green et al. v. Biddle, 6 Wheat
1, has alio been cited to sustain the juriadic-
tton of the court in this case. The court de-
cided in that case that the compact which
guarantied to claimants of land tying in Ken-
tucky under titles derived from Virginia, their
rl^ta aa they existed under the laws of Vir-
ginia, prohibited the State of Kentucky from
ehanging those rights. In other words, that
Kentucky could not alter the compact. And
wlwii thia court were called on to give effect
to the act of Kentucky, which they considered
rapugnant to tlie compact, they held the pro-
vUions of the compact paramount to the a<^
After a careful examination of the questions
adjudged by this court, they seem not to have
decjd«l in any case that the contract !• im-
paired, within the meaning of the federal Con-
stitution, where the action of the State has not
been on the contract. That though rested
rights have been devested under an act of a
State Legislature, tliey do not consider that aa
impairing the grant of the State, under which
tlie property is held. And this it appears is
the true distinction, and the one which boa
been kept in view in the whole current of adju'
dications by this court, under the above clause
of the Constitution.
Had this court established the doctrine that
where an act of a Stato legislature alfectfd
vested rights held by a grant from the State,
tlie att is repugnant to the Constitution of the
United States, the same principle must have
applied to all vested rights. For, as has been
shown, the constitution of a Slate gives the
same guaranty of their Tested rifjhts to all its
clticens. as to those who claim directly under
^tant from the State. And who can deSne tlie
limit of a jurisdiction founded on this princi-
[ilel It would necessarily extend over the
tgialative action of the Slates, and control, to
■ fearful extent, the exercise of their powers.
583*] *The spirit of internal improvement
pervades the wliole country. There is perhaps
no State In the Union where important public
works, such aa turnpike roHda, csnals, rail-
roads, bridges, ets., are not either contem-
plated, or in a state of rapid progression.
These eannot.be carried on without the fre-
quent exercise of the power to appropriate
private property for public use. Vested rights
■re daily devested by this exercise of the emi-
nent domain. And if in all these cases this
court can act as a court of aupervision for the
correction of errors, its power niay be invoked
In numberless in'ttances. If to take private
property impairs the obligation of the contract
under which It is held, this court may ba called
to determine In almoat every case when ihk
power ia exercisedi as well where compensation
u made, ai where it is not made. For, if this
court can take jurisdiction on this ground,
every individual whose property has been taken
has a constitutional right to the judgment of
this court, whether compensation has beos
made in the mode required by the constitutkiB
of the SUta.
In ascertaining the damagea, the elaitnuit
baa ■ right to demand a jury, and that tka
damages shall be assessed in strict conformity
to tlie principles of the law. To revise these
cases would carve out for this court a new
jurisdiction, not contemplated by the Conatitn-
tion, and which cannot be safely exercised.
These are considerations which grow out of
our admirable system of government, thftt
should lead the judicial tribunals both of tha
federal and State governments to mutual for-
bearance, in the exercise of doubtful poip«ia.
The boundaries of their respective jurisdictiona
can never, perhaps, be ao dearly deBned on
certain questions, as to free them from doubt.
This remark is peculiarly applicable to the fed-
eral tribunals, whose powers are delegated,
and consequently limited. The strength of
our political system consists in its haimonji
and this can only be preserved by a strict ob-
servance of the respective powers of the Stkte
and federal government. Believing that thia
court bos no jurisdiction In this case, although
I am clear that the merits are on the side of
the complainants, 1 am in fsvor of dismissing
the bill for want of jurisdiction.
Mr. Justice Story, diasenting.
This cause was argued at a former term erf
this court, and having been then held under
advisement by the court for a year, was, upou
*a diR'erence of opinion among the [*&84
judges, ordered to be again argued, and has ke-
cordingly been argued at the present terok.
The ar'piments at the former term were OOB
ducted with great learning, research and »bil
ity; sod have been renewed with equal lca.m
ing, research and ability, at the present term-
Dut the grounds have been, in some respects,
varied; and new grounds have been assumed.
which require a distinct consideration. I bav«
e\amined the case with the most anxious care
and deliberation, and with all the lights which
tbe rriiearches of the years intcrveninfi between
the first and last argument have enabled me to
obtain, and I am free to confess that the opin-
ion which I originally formed after the first Ar-
gument, is that which now has my mo.^t firm
ond unhesitating conviction. The arj.-ument st
the present term, so far from shaking my oon-
fldence in it, has at every step served to eoa-
In now deliverinK the results of that opinion,
1 shall be compelled to notice the principal ar-
guments urged the other v/ay; and as the topics
discussed and the oUjections raised have sr-
Bumed various fornia — some of which require
distinct and others the same snswers— it will be
unavoidsble that some repetitions should occur
in the progress of my own reasoning. My grest
respect for the counsel who have presW theos,
and the importance of tlie cause, will, I truat,
be thought ■ sulScient apology for the eourv
Pot era 1 1 .
isn
Till Cbaslh Rivkb Budox t. Tax Wabikh Budob ct ai.
wkMi I kKT«, wftb gTut nIttcUnM, tbonsfat it
MWHiry to puraiie.
Soma of the qutitfnir^ Involved In the Uic
■re of local lair. And hero, according to the
known prindplea of thia court, w« are bound
to net upon that local law, howerer different
from or oppoeite to the jurispnidence of other
State* It either is, or may be mpposed to be.
torn upon a conflict, real or luppoeed, between
the State constitution and the Btato law*. The
only queetion over which tbii court poeiesBes ju-
TJidiction in thia caae (it being an appeal from a
State conrt and not from the Circuit Court) it,
aa ha> been itated at the bar. whether tfae obli-
gation of any contract within the true intent
and meaning of tbe Constitution of the United
Statea haa been violated, a* aet forth In the
bill. AU tbe other pointi argued, are before ua
onlj aa ttaej are preliminariea and incidents to
tUa.
A qneation haa, however, been made aa to
the Juriadiction of thia court to mtertain the
proaent writ of error. It has been argued that
thia bridge haa now become a free hndge, and
»»5*] la the property 'of the Stat* of Masea-
ehuaettai that the State cannot be made a partj
defendant to any auit to try its title to the
brU^; and that there la no difference between
a amt againet tbe State directly, and againal
tka State indirectly, tbrough its aervants and
agent*. And In further illustration of this ar-
rient it ia said that no toll* can bo claimed
this case under the notion of an implied
tnut; for the State court has no juriadiction
fa aqnltj over implied trusta, but only over
•zpress traats; and, if thia court haa no juris-
dietion over tbe principal subject matter of the
■Bit (the title to the bridge), it can have none
«v«r the tolls, which are but Incidents.
iij answer to thl* objection will be brief. In
tha flnt place, this Is a writ of error from a
8tat« eourt, under the twenty-fifth sectiun or
tba Jndlclai7 Act of 176S (ch. 20) ; and in such
ft ease, If there ia drawn in question the con-
Mmetlon of any elauee of the Constitution of
tha United States, and the deciaion of tbe State
mid dedd* the qneation, whoerer may he the
parties to tbe original suit, whether private
pttraona, or the State itaelf. This waa decided
k the caae of Cohens t. The SUte of Virginia,
• Wheat. B. £S4. In the next place, the SUtc
0< HMsachuaetta is not a party on the record in
tUs auit, and therefore the constitutional piohi-
Utfon of commencing any suit aeainst a State
doaa not apply; for Uiat clause oftiie Conatitu-
tlOB ia atnctly oonflued to tbe parties on the
IMord. So It was held in Oaburn v. Tbe Bank
«t tha United SUtei, « Wheat. Rep. T3S, and in
na Oommonwealtb Bank of Kentucky v. Wiat-
W, t Fat. Rep. 319, 323. In the next place,
11 is ao objection to the juriadiction, even of
tka drcnlt court* of the United State*, that
the defendant is a servant or agent of tho
Btata, and tbe act oomplalned of la done under
tta Mithority, if It be tortiou* and uncouatitu-
UonaL So It waa held In the case* last cited.
Ia the next place, thl* court, aa an appellate
- ■ ' ' g the
r the
jrct matten, given by tbe State laws, or aa
to tbe mode of exereisfrg tbe aame; except so
far aa reepecta the vary question arlalng under
the twenty-fifth aeetion of the Aet of ITM (sh.
20).
There are but few fact* In this case whid
admit of any controversy. Tlie Lc-gialatuT* of
Massachusetts, by an Act passed on the 9th of
March, 1T86, incorpsrnted certain person* by
the name of "The Proprietors of tbe Charlea
River Bridge," for tbe purpose of building a
•bridge over Charlea Itiver, between [*SS6
Boston and Charlestowo; and granted to them
the eicluslve toll thereof for forty year* from
the time of tlie first opening of the bridge for
nssengera. The bridge was built and opened
r paasengers in June, 1786. In March, ntZ,
another corporation was created by the Legis-
lature for the purpose of building a bridge over
Charlea River, from the westerly part of Boston
to Cambridge; and on that oceaaion the LeRia-
lature, taking into consideration the probable
diminution of the proflta of the (Smrles River
Bridge, extended the grant of the proprietors of
the latter bridge to seventy years from the firat
opening of it for passengers. Ilie proprietor*
have, under these ^nts, ever since continued
to possess and enjoy the emolumenta arising
from the tolls taken for travel over the bridge,
and it haa proved a very profitable concern.
In March, 18Z8, the Legialature created a cor-
poration called "The Proprietors of the Warrea
Bridge," for the purpose of erecting another
bridge aero** Charles River, between Boston
and Charleat«wn. Tbe termini of the last bridga
(which haa been since erected, and was, at the
commencement of this suit, in the full receipt
of toll, and la now a free bridge) are ao very
near to that of Charlea River bridge, that for
all practicalpurposes, they may be taken to be
identicaL The same travel is accommodated
by each brldg* and necesEarily appruachea to
a point, before it reaches either, which ia nearly
equidistant from each. In abort, it is imposai-
ble, in a practical view, and so was admitted
at tlie argument, to diatinguiah tbia ease from
one where the bridgea are contiguous from tbe
beginning to the end.
The present bill Is Bled by the proprietor* At
Charles River Bridge against the proprieton of
Warren Bridge, for an injunction and other
relief; founded upon the allegation that tbe
erection of the Warren Bridge, under the cir-
cu:!:^tanoeB, is a violation of their chartered
rights, and so is void by the constitution of
Moaaachusetts, and by the Constitution of the
United States. Tbe jud^eB of th* Supreme
Judicial Court of Masaacbusetts were tas la
well known) equally divided in opinion upon
the main point* in the cauae; and, therefore, a
pro forma decree was entered, with a view to
bring before this court the great and grava
question whether the Legislature of Uassaebu-
aetts, in the grant of the charter of the Warrea
Bridge, hoe violated the obligation of the Con-
stitution of the United Slutea. If tbe Legisla-
ture has done so, by mistake or inadvertence,
1 am quite sure tliat it will be the laat to insist
upon maintaining its own act. It lias that
stake in the Union, and in the naiutenaiice ol
the constitutional *righta of its own eit- ('ftST
izeua, which will, I trust, ever b* found para-
•XI
Bunnn Cotmr or thb Unim Statm.
adloH; to ths pride of power, and to the pri
of opinion.
In ordflr to oorne to any juat conclusion In re-
gard to the only quntion which this court, Bit-
ting ■■ an appellate court, ba* a right to enter-
tain upon a writ of error to a State court. It
will be neceesary to ascertain what are the
rigbta eonferred on the proprieton of Charlee
River Bridge by the act of incorporation. The
•et ia certainly not drawn with any eommend-
«ble Bccuraev. But it ia difficult, upon any
priDelplea of common reaaoning, to mistalie its
r«al purport and object. It is entitled, "An Act
for incorporating certain persona, for the pur-
Cse of Duilding a bridge over Charles River,
tween Boston and Charlestown, and support-
ing the same during the term of forty years."
Yet it nowhere, in terms, in any of the enacting
clauBCB, confers any authority upon the eorpo-
ratton thus created to build any such bridge;
nor does it state in wliat particular place the
bridge shall commence or terminate on either
side of the river, except by inference and im-
plication from the preamble. I mention this at
the threshold of the present inquiry, aa an Irre-
sistible proof that the court must, in the eon-
struction of this very act of Incorporation, re-
sort to the common principles of interpreta-
tion, and imply and presume things which the
Legislature has not expressly declared- If the
court were not at liberty so to do, there would
be an end of the cause.
The act begins by reciting that "the erecting
of a bridge over Charles River, in a place where
the ferry between Boston and Charlestown is
now kept, will be of great public utility, and
Thomas Russell and others, bsving petitioned,
etc., tor the act of incorporation, to empower
them to build said bridge, and many other per-
sons, under the expectation of such an act, have
subscribed to a fund for executing and com-
pleting the aforesaid purpose." It then proceeds
to enact that the proprietors of the fund or stoc^
shall be a corporation under the name of "The
Proprietors of Charles River Bridge," and it
gives them the usual powers of corporations,
such as the power to sue and be sued, etc. In
the next section it provides for the organization
of the corporation; for choosing officers,' tor
Mtablishing rules and regulations for the cor-
poration, and for elTecting, completing, and ex-
ecuting the purpose aforesaid. In the next sec-
tion, "for the purpose of reimbursing the said
proprietors the money expended in building and
supporting the said bridge," it provides that a
68S*i 'toll be, and tlwreby is granted and
established, for the sole benefit of the proprie-
tors for forty years from the opening ol the
bridge for travel, according to certain specified
rates. In the next section It provides tbat the
bridge shall be well built, at least forty feet
wide, of sound and suitable materials, with a
convenient draw or paatsgcway for ships and
vessels, etc., and "that tlie same shall be liept
in good, safe, and passable repair for the term
aforesaid, and at the end of the said term, the
■aid bridge shall be left in like repair." Certain
Other provisions are aUo made, as to lighting
the bridge, erecting a toll board, lifting the
draw for all ships and vessels without toll or
pay, etc., etc The next seetim deelarei that
after the tolla shall eomBieace, the proprietors
•40
"shall annually pav ta Eairard Colli^ or Uni-
versity the sum of two hundred pounds during
the said term of forty years; and at the end
of the said term, the said bridge shall rerert
to, snd be the property of the Coinmon wealth,
savins to the said college or university a tea-
sonable and annual compensation for the annu-
al income of the ferry, which they might have
received, had not such bridge been erected."
The next and last section or the act deelarei
the act void unless the bridge should be built
within three years from the passing of the set
Buch is the substance of the charter of incor-
poration, which the court is called .upon to a
strue. But, before we can properly enter upon
of this subject, a preliminary
Lsi deration o
inquiry is presented aa to the proper rules ol
interpretation applicable to the charter. Is the
charter to receive a strict or a liberal constrae-
tionT Are any implications to be made beyoMl
the express termsl And If so, to what extAt
are they justifiable by the principles of law!
No one doubts that the ehuter is a contract
and a grant, and that it is to receive such a
eonstructioQ as belong to contracts and grants,
as contradistinguished from mere laws. Bot
the argument has been pressed here with na-
wonted earnestness — and it seems to have had
an irresistible influence elsewhere — that this
charter is to be construed aa a royal grant,
and that such grants are always construeif with
a stem and parsimonious strictness. Indeed, it ,
seems tacitly conceded that unless such a strict I
coQstr^ion Is to prevail (and it is insisted as
as the positive dictate of the oommon law),
there ia infinite dancer to the defense assuned
on behalf of the Warren Bridge proprietors.
Under such circumstances, I feel myself con-
strained to go at large into the doctrine ol tbt
common law in respect to royal grants; because
1 cannot help thinking that, upon this point,
very great errors *of opinion have crept L'SSI
into the argument. A single insulated poaition
seems to have been taken ss a general axiom.
In my own view of the case, I sho'ld not have
attached so much importance to the inijuiry.
But it is now fit that it should be sifted to the
bottom. '
It is a well known rule in the construction of
private grants, if the meaning of the words bs
doubtful, to construe them mont strongly
against the grantor. But it is said that an op-
iiosite rule prevails in cases of grants by tks
.ing; tor, where there is any doubt, the con-
struction is made most favorably for the king,
and against the grantee. The rule is not dia-
puted. But it is a rule of very limited appli-
cation. To what cases does it apply! To such
cases only where there ia a real doubt, where
the grant admits of two interpretations, one of
which is more extensive, and the other more ra-
stricted; so that a choice Is fairly open, and
either may be adapted without any violation ol
the apparent objects of the grant. If tbi
king's grant admits of two interpretations, ons
of which will make it utterly void and worth-
less, and the other will give it a reasonable el*
feet, then the latter ia to prevail; for the rrs-
Bon (says the common law) "that it will b«
more for the benefit of the subject, and ths
honor of the king, which is to be more regajded
than his profit." Com. Dig. Grant, O. 12; *
Co. B. 131, ■; 10 Co. R. It, bj • Go. B. t>
rcMM 11-
I8»
Tax CiusLlti KtvBB .Bbiuob v. Tbx Wauer Bbidok et al.
And hi evcrj cam, tin mle U nwde to bod lo
Ike FMl JiutiM and int«grit7 of the <m«.
No itnined or MtraragKnt coBttruetioD U to
b« nude in fkTor of the king. And, If the In-
tention of the mmt 1* obvjoua, k fair and lib-
irml iuterprstiitron of its temu is raforoed. The
rule itMlf ia alio expreaHlj diapenied with, in
ftll caeca ivhare the grant appeaTa upon ita
Awe to flow, not from the aolldtation of the
aubjcet bat from the speeial grace, oerUin
k>owle«%e, and mere motlmi of tii« erowii; or,
aa It etude in the old royal patente, ex ipeclali
gratia, oertA aeientift, at ax mero motu regr
(Me Arthur Lcsate's eaac, 10 Co. H. 109, IIS
b; Bir John Honlio's caae, fl Co. R. 0;
Black. Oom. S4Ti Com. Dig. Qrant, Q. 12}
»Bd theaa worda are accordingly inierted la
naoet of the modem granU of the crown, Id
order to exolude any narrow oonetniction of
tban. Bo the court admitted the doctrine to
b« In The Attorney-General T. Lord Eardly, 8
Price, 69. But what ia a moat important
qoaliScatlon of the rule. It never did apply to
granta made for a valuable consideration by
the orown, for, in auch grante, the aame rule
baa alwaye prevailed aa In caaea between lub-
5t0*] Jecta. The mere grant of a bounty *of
the king may properly be rcatricted to its ob-
vtOBi intent. But the eoDtracte of the kiug
for Talus are liberally expounded, that the
dignity and justice of the government may
never be jeoparded by pet^ evuioni, and
technical lubleties.
1 shall not go over all the caste in the books
wUch recognize these principles, although
tli^ are abuudant. Many of tiiem will be
found collected In Bacon's Abridgement (Pre-
rogative, P. 2, p. 602 to S04I, in Comyn'e Dl-
gMt (Qrant, Q. 12), and in Chitty on the Fre-
rogativea of the Crown (ch. IS,. sec. 3). But I
ahall dwell on some of the more prominent,
and especially on those wfaieh have been mainly
r«li«d on by the detcndantai because, in my
bumble judgment, they teaeh a ven different
teetrlne from what has been iniisted on. Lord
C^e, In hii Commentan on the Statute of
Quo Warranto, IB Edw. I., makea this notable
remark: "Here is an exoellent rule for con-
atruetion of the king's patents, not only of lib-
avtlea, bnt of lands, teuonenta, and other tilings
which he may lawfully grant, that they have
no atriel or narrow inbarpretation for the
0¥er-throw]ng of tbm, aed secundum earundum
filenitudlnem jndicentor; that is, to have a
iben) and favorable constmcticm for the male-
lag them available In law, nsque ad plcnttudl-
nem, for Uie honor of the king." Surely, no
lawyer would contend for a more bencBeient or
mora brood exposition of any grant whatso-
«mr than this.
So in respect to Implieationa in cases of royal
grants, there ts not the slightest difficulty,
eithor upon authority or principle, In nving
tbem a large effect so as to include things
wUeb are capable of being tlie eubject of a
diatinet grant. A very remarkable instance
of this sort arose under the Statute of Prerog-
ative (17 Edw. n., Stat. 2, ch, IS), whicli
declared that when the king gtanteth to any
a taaMx or land with the appurtenaneea, unless
Im Hakei txpreia mention u tba dead, ia writ-
ing, of ndvDwsona, eta., bakmging to such
■■Mil. Om tba UMg nnarTatb to hfiniclf such
advowsons. Here, the statute itself prescribed
a strict rule of interpretation.* Yet, m Whist-
ler's case (10 Co. R. S3), it was held that a
royal grant of a manor with the appurtenances,
in as ample a manner «s it came (« the king's
bands, conveyed an advowson, which was ap-
pendant to the manor, by implication from the
words actually used, and the apparent intent.
This was certeinly a very strong ease of taia-
ing an implication from words ausceptible of
dilTerent interpretations, where the statute had
furnished a nositive rule lor a narrow con-
struction, excluding the advowson. *So [*6I1
it has been decided that If the king grante a
messuage and all lands spectantea, aut cum eo
dismissas, lands which have been enjoyed with
it for a convenient time pass. 2 RoUe's Abridg.
IBO, ch. 2S, 30; Cro. Car. IflB; Chitty on the
Prerogatives, eh. 16, sec 3, p. SQSj Com. Dig.
Qrant, G. 6. In short, wherever the intent
from the words ia clear, or posaesaes a reason-
able certainty, the aame construction prevails
in crown grants as in private grants; especial-
ly where the grant is presumed to be from the
voluntary bounty of the crown, and not from
the representation of the subject.
It has been supposed, in the argument, that
there is a distinction between grants of lands
held by the king, and grants of francliiscs
which are matters of prerogative, and held by
the crown for the beneSt of the public, as flow-
ers ■ot prerc^tive. I know of no such distinc-
tion, and Lord Coke, in the paiaage already
cited, expressly excludea it; for he insiata that
the aame liberal rule of interpretation ia to be
applied to esses of grants of liberties as to
cases of granta of lands.
I am aware that Mr. Justice Blaclistoiie, In
his Commentaries (2 Black. Com, 347), has
laid down some rules apparently varying from
what has been stated. He says, "the manner
of granting by the king does not more differ
from that py a subject than the eonstruetion of
his grante when made. 1. A grant made by
the king, at the suit of the grantee, shall be
taken most benellcially for the king and i^inst
the party; whereas the grant of a subject la
construed moat strongly against the grantor,
etc 2. A subject's grant shall be construed
to include many things besides what are ex-
pressed, if necessary for the operation of the
grant. Therelore, in a private grant of the
profits of land for one year, free ingress, egress,
and regress, to cut and carry away those proflts,
are also inclusively granted, etc. But the
king's grant shall not mure to any other intent
than that which is precisely expressed In the
grant. As If he grants land to an alien, It
operatea nothing; for such a grant shall not
inure to moke him a denizen, that so he may ba
capable to take by the ^rant." Now, in rela-
tion to the last position, there is nothing
strange or unnatural in hdding that a crown
grant ahall not inure to a totally different
purpose from that which is expressed, or to
a double intent, when all ita terms are sstlslled
by a single intent. It is one thing to grant
land to an alien and quite a different thing to
make him a denlsen. The one is not an inei-
dent to the other, nor does it naturally flow
fiom it. The king may be willing te grant
I. P. la Atry-Oansral v. Sitwell, 1 Yaamt^m
•«1
■M
SunBitK Coon or tse Uhitd SiAna.
un
K99*] Und to an Allen, wfacD 'he 1IM7 not be
wIllluK to giv« him ftll the prtvilegea of « sub-
ject. It la well known thst an alien may take
iMid bj grant, and maj hold it against every
person but the king, and it does not go to
the latter until office found; so that, in the
mesn time, an alienation by the alien will be
good. A grant, therefore, to an alien, is not
ntterly void. It Ukei elTect, though it is not
indefeasible. And, in this respect, there does
not seem any difference betvicen a grant by a
private person and b; the crown 1 for the grant
of the latter takes effect, though It is liable
to be defeated. See Com, Dig. Alien, C. 4;
1 Leon, 47 ; 4 Leon, 82. Ttie queatioa in Buch
cases U not whether ttiere may not be implica-
tions in a crown grant, but whether a totally
different effect shall be given to a, crown grant
from what its terms purport. The same princi-
Elc was acted upon in Engtc field's case, T
oke, R. 14, a. There the crown had demised
cetl-ain lands which were forfeited by a tenant
for life by attainder, to certain persons for
foKy years, and the crown being entitled to »
condition which would defeat the remainder
over after the death of the person attainted,
tendered performance of the condition to the
remainderman who was a stranger to the de-
mise; end he contended thst by the demise the
condition was suspended. And it was held that
the demise should not operate to a double In-
tent, viz., to pass the term, and also, in favor
of a stranger, to suspend the condition: fc7
(it ua9 saull "the grant of the crown shall be
taken according to the express intention com-
prehended in tlie grant, and shall not extend
to any otiier thing by conatruction or impli-
cation, which doth not appear by the grant
that the intent did extend to." though it
mi^ht have been dilTcrent in the case of a
■uhject.
In rFKard to the other position of Mr. JuS'
tice Blackstone, it may he supposed that oe
means to usdsrt that in a croun grant of the
profits of land for a year, free ingreas, egress
and regresH to take the profits, are not in-
c)ii<Ted by implication, ns they would be in a
•ubject'a grant. If such be his meaning, he i*
eerlAinly under a mistake. The same con-
struction would be put upon each, for other-
wite nothing would pass by the grant. It
li a principle of common sense, as well as of
law, that when a thing is granted, whatever
is necessary to its enjoyment is granted also.
It is not presumed that the king means to
make a void grant; and, therefore, if it ad.
uits of two constructions, that shall be fol-
lowed which will secure its validity and opera-
tion. In Comvn's Digest (Com. Dig. Grant,
E. II; Co, Litt. 66, a), a cose is cited from
the year book, 1 Hen. IV. fi, (it should be 6,
ft), that if there be a grant of land, cum
BtS'] pertinentiia, *to which common is ap-
pendant, the common passes as an incident,
even though it be the grant of the king. So,
It is said in the same case, if the king grant
to me the (oundatioo of an abbey, the eorody
passes. So, if the king grant to me a fair, I
■hell have a court of I'iepoudre, as incident
thereto. And there are other cases in the
books to tha same effect. See Bac, Ahr. Pre-
rogative, F, 2, p. 602; Comvn's Dig. Grant,
<i. IS; Lord rhandos'H cose. R Co. R. fiS; Sir
Kobeit Atkyn's OMe, 1 Vent 39B, iWt $ Co.
R. M, SO. Flncb, In lih treatise ob the law,
contains nothing beyond the oommon author-
ities. Finch's Law, bk. 2, eh. X, p. S4, edit
1613; Cro. Elii. Ul ; Per Pophun, C. J., IT
Vin. Abr. Preroeative, 0. cb. pi, IS; Com.
Dig. Franchise, C. 2; Inst. 28E.
Lord Coke, after stating the deeisimi of Si
John Houlin'a case, 0 Co. R. 6, adda the**
words; "Not« the gravity of tiie ancient sagos
of the law to construe the king's grants bM-
flcially for bis honor, and not to make any
strict or literal consbuction in subveraion ol
such grants." This Is an admonition, in my
humble Judgment, very fit to be remenibered
and acted upon hy all judges who are called
upon to interpose between the eoremment
and the citizen in caaes of publie grata*.
Legat's case, 10 Co. R. 109, contains nothtig
that in the slightest degree impu^s the gsa-
eral doctrine here contended for. It proceeded
upon a plain interpretation of the very words
of the ^ant, and no implications were neces-
sary or proper to give it its full effect.
The ease of the Royal Fishery of the BaiuMt
decided in Ireland in the Privy Council in 8th
James I. (Davies'a Rep. 146), luu been mneh
relied on to establish the p<»nt that the king's
grant shall ^>ass nothing 1^ Implication. T^t
case, upon its actual circumstances, justiAst
no such sweeping conclusion. The king was
owner of a royal Qshen in gross (which is taa-
terial ) on the River Banoe. in navigable wa-
ters, where the tide ebbed and flowed, about
two leagues from the sea; and he granted to
Sir R. M'd. the territory at Rout, which is
parcel of the County of Antrim, and adjoining
to the River Banne, in that part where tbt
said fishery is; the grant oontaining the fol-
lowing words: '^mnia cas'ra, messuagia, etc.,
etc., piscarias, piscationei, aquas, aquarum
cursus, etc., ao omnia alia hereditamenta in
ve] infra dictum, territorium de Rout, in oooii-
tatu Antrim, ezceptis, et ex hao ooncessions
nobis heredibUB et sneeessoribue nostris re-
Rervatle trlbus partibus piseationibus flumiatt
de Banne." The question was, whether the
grant passed the royal fishery in tbs
'Banns to the grantee. And it was held {*&>4
that it did not; first, because the River Banne,
so far as the sea ebbs and flows, is a royal nav-
igable river, and tha fishery there a royal fish-
ery ; second, because no part of this royal fish-
ery could pass by the grant of the land ad-
joining, and by the general grant of all tta
fisheries (in or within the territory ol Rout),
for this royal fishery is not appurtenant to tlw
land, but IS a fishery In gross, and parcal of
the inheritanca of the crown itself; and gen-
eral words lu the king's grant shall not p«M
such special royalty, which belongs to the
crown by prert^ative; third, that by tha ex-
ception in the grant of tires parts of this ftah-
ery, the other fourth part of this fishery did
not pass by this grant, for the king's grant
shall pass nothing by implioation; and for
"^is was cited 2 Hen. VIL 13.
Now, there is nothing In this eaao which ia
<t easily explicable upon the oommon prinei-
ples ot interpretation. The fishery was a royal
fishery in gross, and not appurtenant to tk*
territory of Rout. Ward v, Cresswell, WillM^
R. 265. The tertos of the grant were of all A^
erica in and wiUiin thi« territory, and tU» a^
eluded anv fiaherr not within It, or not »M«^
P«ten 11.
1837
Tat Charixb Him IAdpgb t. Tsb Waucn I
Unknt to ft. The prcmiiea, then, dearly did
not, upon mny jutt construction, convey the
ftahery In question, for it tva> not within the
territory. The only reini.in:ng quFstlnn «aa
whether the exception of three^iiarters would,
by impllutlon, carry the fourth part whicli
wki not excepted; that is, whether terms of
•xceptioa in a crown grant should be construed
to be terms of grant and not of exception. It
I* certainly no hardh applicatioa of the com-
mon rules of interpretation to hold that an im-
plication which required such a change in the
natural meaning of the words, ought not to be
ailowed to the prejudice of the crown. Non
constat, the king might not have supposed, at
the time of th^ grant, that he was owner of
three parts only of the fishery, and not of the
fourth part. This case of the fishery of the
Banne, was cited and conimpnted on by Mr.
Justice Bayley in delivering the opinion of the
court in the case of Tlie Duke of Somerset v.
Fogwell, 6 Barn. & Cress. 875 and 8B5, and the
•ame view was taken of the grounds of the de-
cision which has been here stated; the learned
judge adding that it noa further agreed in that
eaae that the grant of the king parses nothing
by implication; by which he must be undtr-
■tood to mean nothing which its terms do not,
fairly and reasonably construed, embrace as a
ErtiOD of or incident to the subject matter of
B grant.
At to the case cited from 2 Hen. VII. 13
S95'] (whicli was the sole authority 'relied
on), it turned upon a very different principle.
There, the king by letters patent granted to a
man tliat he might give tiven'j marks annual
rent to a certain chaplain to pray for souls,
etc.; and the question was, whether the grant
waa not void for uncei'tninty, as no chaplain
waa named. And the principal stress of the
argument seems to have been whether this li-
cense should be construed to create or enable
the grantee to create a corporation capable of
taking the rent. In the argument it wo* as-
serted that the king's grants should not be
construed \)j implication to create a corpora-
tion, or to mure to a double intent. In point
of fact, however, I find (Chronica Juridicialla,
p. 141) that neither of the penoni whose
opinions are stated in the case was a judge at
tbe time of the arguineat, nor doea it appear
what tha dedsioa was; ao that the whole re-
port is but the argument of counsel. Tha
aame casa ii fully reported by Lord Coke, in
tbe case ol Sutton's BospiUl, 10 Co. Rep.
S7, 28, who lays that he had seen the original
reoord, and who gives the opinions of the judges
at large, by which it appears that the grant
wa* held valid. And so says Lord Coke, '^Hote,
reader, this grant of the king inures to these in-
tents, VIE., to make an Incorporation, to make
a succession, and to grant a rent." So, that
>ere we liave a ease not only of a rc^al grant
(eing eoDstrued liberally, but diven Implica-
tion* being made not at all founded in the ex-
press terms of the grant The reason of which
waa (as Lord Coke taya), because the king's
charter made for the erection of pioui and
charitable works, shall be always taken in the
most favorable and beneficial sense. This case
was rcoogniMd by tbe judges as sound law,
In tbe ease of Sutton's Hospital. And it was
de«rlT admitted by tbe judges that in a chart-
er 9t incorporatioa bv the cKrwa. all the Isei-
denta to a corporation were tacitly annexed, al-
though not named, as the right to sue and be
sued; to purchase, hold, and alien lands; to
make by-laws, etc., etc. And if power ia ex-
pressly given to purchase, but no clause to
alien, the latter fotlowa by implication, as an
incident Comyn's Dig. Franchise, F. 0 F. 10
P. IS. It Is very dltHcult to afTirtn in the teeth
of such authorities that in the king's grants
nothing is to be taken by implication, as is
gravely asserted in the case in Davics's Keporta,
149. The case cited to support it is directly
against it. In truth, it is obvious that the
learned judges mistook the mere argurnvnts of
counsel for the solemn opinions of the court.
And the case, as decided, is a direct authority
the other way.
•The case of Blankley v. Wiostanley, ['699
3 T. R. 279, has also been relied on for the
same purpoM. But it has nothing to do with
the point. The court there held that by the
saving in the very body of the charter, the
concurrent jurisdiction of the county magii-
trates was preserved. There was nothing said
by the court, in respect to the implications in
crown granta. The whole argument turned
upon the meaning of the express clauses.
Much reliance has been placed upiin the lan-
guage of Lord Stoweli in The Ei^cbe, S Rob.
173. The main question In that case waa
whether the crown had a right to release cap-
tured property before adjudication, without the
consent of the captors. That question depended
upon the effect of the king's orders In council,
his proclamation, and the parliamentary pt'tM
act; for, independently of these acls, it waa
clear that ail captured property jure belli, tw-
longed to the crown, and was subject to ita sole
disposal. Lord Stoweli, whose eminent quali-
fications as a judge entitled him to great rever-
ence, on that occasion said, "A general pre-
sumption arising from these considerations it,
that government does not mean to devest itself
of this universal attribute of soverciimty con-
ferred for such purposes (to be used fur peace,
as well as war} unless it is so clearly and une-
quivocally expressed. In conjunction with this
universal presumption must be taken, also, the
wise policy of our own peculiar law, which in-
terprets the grants of the crown in this respect,
by other rules than those which are applicable
in the construction of the grants of individuals.
Against an individual it is presumed that he
meant to convey a benefit, with the utmost lib-
erality that his wordt will hear. It is indiffer-
ent to the public In which person an Intereat
remains, whether in the grantor or the taker.
With regard to the grant of the sovereign, it is
far otherwise. It is not held by the sovereign
himself as private proper^, and no alienation
shall be presumed, except what Is clearly and
iodlspntably expressed," Now, the right of the
captors in that case, was given by the words of
the king's order in council only. It was a right
to seize and bring in for adjudication. The
ri^ht to seize, then, waa given, and the duty to
bring in for adjudication was imposed. If noth-
ing more had existed, it would be clear that
the crown would have the general property In
the captures. Then, again, the Prize Act and
SriM proclamation gave to the captors a right
1 the proper^ after adjudication, as lawful
prize, and not before. This very limiution iiat-
urallv implied that until a^judicfttion thejr ha4
6DnxKB ComtT or thb Uitim Staim.
18ST
KIT"] o« right In the property. 'And thia U
the griuiid upon which Lord S to well placed
his judgni«nt. us Ihe clear result of a reasonable
interpretatioD ol tlieae acts; declining to relj
on an; reaeoning from conside rati orb of publie
policy. And it is to be conaidered that Lord
Stowell was not ipeaiiing of an ordinary grant
of land, or ol frBTichiBes, in the common course
of mere municipBl reguIationB, but of aovereign
attributes and prerogatives, involving the great
rights and duties of war and peace, where, upon
every motive of public policy, and every ground
of rational interpretation, there might be great
hesitation in extending the tenna of a grant be-
yond their fair interpretation.
But, what I repeat, is most material to be
■tated, ia, that all thia doctrine in relation to
the king's prerogative of having a construction
in tia own favor, it exclusively confined to
caaes of mere donation, flowir.~ fr^m the hauoty
o( the crown. Whenever tlie grant i-t upon a
valuable consideration, the rule of construction
ceases 1 and the grant h expounded exactly as
it would be in the case of a private grant, fuvor-
ably to the grantee. Why is this rule adopted!
Plainly, V-cft^se the grant is a contract, and ia
lo be irtprprotcd nccnrding to its fair meaning.
It would be to the dishonor of the government
l^:nt It HhoutJ pcckef a I.iir consideration, and
Cicn qtiibble as to the obscurities and implica-
tions of Its own contract Such waa the doc-
trine of my T.«Td Coke, and of the venerable
■ages of the law in other times, when a resist-
ance to prerogative waa equivalent to a remov-
al from office. Even in the worst a^ej of arbi-
trary power and Irresistible prerogative, they
did not hesitate to dcclnre that contracts
founded in a valuable conai'Uration ought to be
construed liberally for th° subject, for the
hnnor of the crown. 2 Co. Inst. 496; sec, also,
Com. Dig. Pranchifc. C. P. 6. If we are to have
the grants of the I.«gialature construed by the
rules applicable to royal grants, it ia but com-
mon justice to follow them throughout, for the
honor of thii republic. The justice of the Com-
monweoltb will not (1 trust) be dei.med leas ex-
tensive than that of the crown,
I think tlint I hr.vc demonstrated, upon au-
thority, th:it it ii by nn mean! true, that Jnipli-
cationa may not and ought not to be admitted
in regard to crown grants. And I would con-
clude what I hnve to say on this head, by a
remark made by the late Mr. Chief Justice
Parsona, a lawyer equally remarkable tnr hia
extraordinary genius and hia profcasional learn-
ing, "in England, prerogative is the cause of
one agiiinst the whole. Here, it ia the cause of
BflS'J all against 'one. In the firat case, the
teetinga and vices, as well as the virtues, are
enlisted against it; in the last in favor of it
And, therefore, here, it ia of more importaniM
that the judicial courts should taice care that
the claim of prerogative should be more strictly
watched." Martin v. Ihe Commonwealth, 1
Mass. R. 3Sa.
If, then, the preaent were the case of a royal
grant, I should moat strenuously contend, both
upon principle and authority, that it waa to
receive a liberal, and not a strict conatructloa.
I ahould so contend upon the plain intent of the
charter, from its nature and objecta, and from
Its burjena and duties. It is confessedly a case
of contract, and not of bounty: a case of oon-
•«4
tract for a valuable eonsidcratlon ; for objeett
of public utility; to encourage tnterprise; to
advance the public convenience; and to aecuia
a just remune ration for large outlays of private
capital. What is there in such a grant of the
crown, which ahould demand from any eonit
of justice a narrow and strict interpretation of
ita terms 1 Where ia the authority which con-
tains auch a doctrine, or justifies such a eoB-
cluaionl Let it not be assumed, and then rea-
soned from, as an undispujed concession. It
the common law carries in its bosom such a
principle, it con be shown by some authorities,
which ought to bind the judgment, even if
they do not convince the luiilers landing. In all
my researches I have not been able to find any,
whose reach dues not fall far, very far short of
eatabtishing any auch doctrine. Preroga'.ije
has never been wanting in pushing forward Ha
own cV-„-nE fjr ii>',;ilgtnce or exemption. But
it has i,--'.4i yel (aj far as I know) pushed ihaA
to thia extravagance.
I stand upon the old law; upon law estab-
lished more than three centuries ago, io ease*
contested with aa much ability and learning as
any in the annals of our juri&piiili.icc, in n-
sjstin^ any such oueioaolinn-nta upon the ri^hti
and liberties of the citi^i ns, secured by public
grants. I will not consiuit to shake their titit
deeds by any speculative niceties or novelties.
The present, honet'er, is not the ease of a
royal grant, but of a legislative grant, by a pub-
lie sUtlite. The rules of the common law in
relation to royal grants have, therefore, in re-
ality, nnthing to do with the ease. W't are to
give thia act of incorporation a rational and
fair coratriictjnn, according to the general ruies
which govern in all caaes of the expofiition cf
public statutes. We are to ascertain the lepk'
fiLtive intent, and that uncuascirtaincd, it is our
duty to give it a full and liberal Operation. Th;
books are full of cases to thia 'efTcct [■&•«
(aee Com. Dig. Parliament, R. 10, to R. 2S,
Bac. Abr. Statute), if, indeed, so plain a prin-
ciple of common sense anJ common justiC'!
atood in any nt-ed of authoiify to siiipjit it.
Lord Chief Justice Eyre, in the c.-ise nf Boiillon
V. Bull, 2 H- mo, 4Cn, SLID, loc': r.ot'ce nf th"
disfinjtinn between th; cntistni'^lion of a cromi
grant, and a grant by an act nf Parliament:
and held the rules of the common taw, intro-
duced for the protection of the crown in re-
spect to its own grants, to be inairplicable to a
grant by an act of Parliament It is to be ob-
served (said his l<>rd-.bi]i) that there ia nothing
technical in the cuniposjtiun of an act of Par-
liament. In the cx[-(>9ition of statutes, the in-
tent of Parliament ia the guide. It is e.vpreaalv
laid down in our hooka (I do not here speak dI
penal statutes) that every statute ought to be
expounded, not according to the tetter, but tht
intent." Again, he said: "This case was ec«n-
pared to the case of the king being deceived in
his grants. But I am not sati^ilied that the king,
proceeding by and with the advice of Parlia-
ment, ia in that situation, in resiiect to whiek
he ia under the special protection of the law;
and that he could on that ground he considend
aa deceived in his grant. No case waa eited Is
prove that position."
Now, it ia to be remembered that his Iwl
ship waa speaking upon the construction «(•■
act of Parliament of a private nature; an Ml
Feterc It,
Tbx Ch^buu Rtvu Bkihub v. The Wamun Bbidqk r al.
of Parliament tn the nature of a monopoly; ar
act of Parliament granting an exclusive patcni
for an inventiDD of the celebrated Mt. Watt
And let it be added that faU opinion a* to thi
validitT of that grant, notwithstanding all thi
obacantiea of tlie act, was ultimately lUHtained
En the KIng'a Bench by a definitive judgment in
ita favor. See Homblower v. Boulton, 8 T. R
S5. A doctrine equally juit and Ifbcrnl ha*
arda v. Daggett, * Mans. R. S^4, S3T, Mr. Chief
JFuatfee Pai^ona, in delivering the opinion oF
the court, eafd; "It ia altriva to he preeumed
that the Leg<!ili)tiirc intend the moet beneflrial
eonstructinn of thi'ir acts, when the design of
them ie not apparent;" eee also Inhnbitanta of
Somerset v. Inhabitants of T>i);hton, 12 Man. R.
383; Whitney v. Whitney, 14 Masi. S. 88; B
Masa. R. 623; Holbrook v. Holbrook. 1 Pick.
R. Stanwood v. Pierce, 7 Mass. R. 458. Even
ID relation to mere private etatutes. made for
the accommndation of particular citizens, and
which may nfTect the rights and privileges of
others; courts of law will give them a large
oonstruction. if it arise from necessary implica-
tjon. Coolid^ r. Williams. 4 Maes. R. 146.
COO*] 'As to the manner of construing par-
liamentary grants for private enterprise, them
are some recent decisions which, in my judg-
ment establish two very important prinnplei
applicable directly to the prespnt case; which,
M not confirmalory of the views which 1 have
endeavorrd to mnhitain, are at least not repug-
nant to them. The first is that all grant* for
purposes of this sort are to be conetrued aa
eontracta between the government and the
^antees, and not as mere laws; the second la
that they are to receive a reasonable consi
tion, and that if either upon their express
tKrms, or by just inference from'the terms, the
intent of the contract can be made out. It Is to
be recognized and enforced accordingly. Bnt if
tht language be ambiguous, or if the inferenoe
b« not clearly made out, then the contract is to
Im taken most strongly against the grantor, and
most favorably for the piibtic. The first case
ja The Company of Proprietors of the Leeds and
Urerpool Canal v. liustler, 1 Bam. k Ores. 424,
whera the question was upon the terms of
the charter, granting a toll. The toll was pay-
able on empty boats passing a lock of the canal.
The court snid, "no toll was expressly imposed
upon empty boats, etc., and we are called upon
to say that such a toll was imposed by infer-
ence. Those who seek to impose a burden up-
on the public, should take care that their claim
reata upon plain and nnambiguous language.
Here the claim is by no means clear." 'His
B«rt case was the Kingston-npon-HulI Dock
Company v. La Marche, 8 Bam. & Creaswell,
48, where the question was aa to a right to
wbartage of goods shipped off from thair qnays.
Lord TenterdeD, in delivering the judgment of
tke court tn the negative, said, "this was
«U«rly a bargain made between a company of
adventurers and the public, and, as in many
aimllar cases, the terms of the barnin are con-
tained in the act; and the plaJntins can claim
nothing which is not clearly given." The next
ease is The Proprletora of the Stonrbridn
Canal v. Wheeley, 2 Barn, ft Adolph. 792, in
wbicb the qnastioa wu m t« a ri|^t to eertaia '
• ifa fld.
coUa. Lord Tenterden, In delivaring the opin-
'on of the oourt, said, "^his like many other
»aea, fa a bargain between a company of ad-
•'enturera and the public, the terms of which are
aipressed in the statute. And the rale of eon-
struction in all such caaea is now fully estab-
lished to be this; That any ambiguity in tha
terms of the contract must operate againat tha
idventurers, and in favor of the publio; and tha
'ilaintiffs can claim nothing whlcn is not elearly
i;iven to them by the act." "Now, it is quite cer-
tain that the company have no right expressly
given to receive any oompensatjon, except, ete.,
and therefore *it is incumbent upon them [*<01
to show that they have a right, dear)* glvea
by inference from some other of the-dausea."
This latter statement shows that it is not india-
pensable that in grants of thia sort, the con-
tract or the terms of the bargain should be in
express language; it Is sufficient if they may be
clearly proved by Implication or inference.
I admit that where the terms of a grant are
to impose burdens upon the pnblio, or to create
a restraint injurious to tue puhlle Intere*^
there is sound reason for interpreting the
terms, if ambiguous, in favor of the public But
at the same time, I insist that there is not the
slightest reason tor saying, even in such a case,
that the grant is not to ^ construed favorably
to the grantee, so aa to secure him in the en-
joyment of what is actually granted.
I have taken tip more time In the diacnaaioB
of this point than, perhaps, the occasion re-
quired, twcause of its importance, and the leal,
and earnestneea, and learning, with which tha
arg^iraent tor a strict construction has been
pressed upon the court, as in some sort vital Ut
the merits of this controversy. I feel the more
confirmed tn my own views upon the subjeet,
by the consideration that evet^ judge of tha
Stale court, in delivering his opinion, admitted,
either directly, or by inference, the very princi-
ple for which I contend. Mr. Justice Morton,
who pressed the doctrine of a strict oonatnw-
tion most strongly, at the same time aaid, "al-
though no distinct thing or right will paaa bj
implication, yet I do not mean to question, that
the words used should be understood in tnelr
most natural and obvious sense, and that what^
ever is essential to the enjoyment of the thing
granted will be necessarily implied in tha
grant." 7 Pick. R. 462. Mr. Justice Wilde aatd,
''in doubtful cases it aeems to me a sound and
wholesome rule of construction to interpret
public grants most favorably to the public in-
terests, and that they are not to be enlarged \wf
doubtful implications." "When, therefore, tlte
Le^slature roakea a grant of a public franshiae,
it la not to be extended by conatructlon b^ond
its clear and obvious meaning." 'There ai«
some legislative grants, no doubt, that may ad-
mit of a different rule of conetmetion, such aa
grants of land on a valuable conslderatloQ, and
the tike." 7 Pick. 469. These two learned
judges were adveree to the plaintiSa' olaim.
But the two other learned jvdgea, who were ia
favor of it, took a much broader and more lib-
eral view of the rales of interpretation of tha
An attempt baa, however, been made to pot
e case of legislative 'grants npon the [*<0I
earns footing aa royal gmnta, as to their eon-
atraction; upon soma •uppoaed aBalogy between
BansMM CoDBT or ihi UnmB Sum.
mt
in tkvor of NpuUicAn prerogative i« new, and
10 anthoritf hi« been ciUd which aupporta it.
Our legialkturea neltlier hare, aai &Sect to have
may rojal prerogativea. There is no proviiton
in the Conatitution authorliing their grauta '
be construed differently from the grants
private persDiiB, in regard to the like aubject
matter. The policy of the conunon law, which
gave the crown lO manj exclusive prlvil^e*
and extraordinary claims, different from thoie
of the subject, was founded in a good meaaure.
if not altogether, upon the divine right of kings,
•r at leant upon a lenae of their exalted dig-
nity and pre-eminence over all subjects, and up-
W the notion, that they are entitled to peculf
any such privileges. They
(trued according to common sense ana cam-
mou reason, upon their language and their in-
tent. WliH.t reason is there that our legislative
acts should not receive a similar interpretation 1
In it not at least as Important in our free gov-
ernmenta that a citizen should have as much
security tor his rislitH and estate derived from
the grants of tbs Legislature aa he would have
in England T What solid ground is there tu
•ay tliat the words of a grant in the mouth of
a citizen shall mean one thing, and in the
mouth of the Legislature shall mean another
thing r That in regard to the grant of a citizen,
every word shall in case of any question of In-
terpretation or implication be construed against
him, and in regard to the grant of the govern-
ment, every word shall be construed in its fa-
vor! That language shall be construed, not ac-
cording to its natural import and implication*
from its own proper sense, and the objects of
the instrument, but shall change its meaning,
as it ia spolten by the whole people, or by one
of themt There may be very solid grounds to
say that neither grants nor charters ought to be
extended beyond the fair reach of their words j
and that no implications ought to be made,
which are not clearly deducible from the lan-
guage, and the nature and objects of the grant.
In the case of a legislative grant, there is no
ground to impute surprise, imposition or mis-
take to the same extent as in a mere private
grant of the crown. The words are the words
of the Legislature, upon solemn deliberation,
and examination, and debate. Their purport
la presumed to be well known, and the public
603*] interests are 'watched and guarded by
alt the varieties of local, personal and profes-
aional jealousy, as well aa by the untiring
leal of numbers, devoted to the public servica.
It should also be constantly kept in mind
that in construing this charter we are not eon-
atruing a statute involving political powers and
sovereignty, like those involved in the case of
The Elsebe, 6 Bob. R. 173. We are constru-
ing a grant of the Legislature, which, though in
the form of a statute, is still but a solemn con-
tract. In such a ease, the true oourae is to as-
certain the sense of the parties from the terms
of the instrument; snd that onee ascertained, to
give it full effect. Lord Coke, indeed, recom-
mends this tu the best rule, even in respect to
royat ersints. "The best exposition (saya he)
of theldng's ■ ■ ■ ■■ ■■ ■■
s ebarter is, upon the consideration
of tha wliola charter, to SExponnd the ehartw
by the charter itself) every material part there-
of (being) explained according to the true and
genuine sense, which is the best method." Cass
of Sutton's Hospital, 10 Co. R. Zi, b.
But with a view to isduoe the court to with-
draw from all the common rulea of reasonable
and liberal interpretation in favor of grants,
we have been told at the argument that this
very charter is a reatriction upon the legisla-
tive power; that it la in derogation of the
rigbtd and interests of the State and the peo-
ple; that it tends to promote monopoliea, and
exclusive privileges, and that it will interpose
an insuperable barrier to the progress of im-
proTonent. Now, upon every one of these
propositions, which are assumed and not
proved, I erLtertain a directly opposite opinion;
and, if I did not, I am not prepared to admit
the conclusion for which they are adduced. It
tbs Legislature has made a grant which in-
volves any or all of these consequences, it ia
not for courts of justice to overturn the plain
sense of the grant, because it has been impro*-
idently or injuriously made.
But I den^ the very groundwork of the mr-
gument. This charter is not (as I have al-
ready said) any restriction upon the legislative
power, unless It be true that because t^ Legis-
lature cannot grant again what it has already
granted, the legislative power is restricted. It
so, then every grant of the public land is a in-
striction upon that power; a doctrine that hat
never yet been established, nor (as far as 1
know) ever contended for. Every grant of a
franchise is, so far as that grant extends, nec-
essarily exclusive; and cannot be resuni^l, or
interfered with. All the learned judges in the
State *oourt admitted that the Una- [*00 1
chise of Charles Rjver Bridge, whatever it l-e.
could not be resumed or interfert-J with. The
L^islature could not recall ita grant or d<'«tri>\
it. It is a contract, whose obligation cjiinol- Ur ,
constitutionally impaired. In this rcspi'Ct, it ,
does not differ from a grant of lands. In each |
case, the particular land, or the particuUr ,
franchise, la withdrawn from the Ie^isl;^live i
operation. The identical land, or the idrntir.il !
franchise, cvmot be re-grantcd, or avoided by ;
a new grant. But the legislative power rr-
maina unrsstrieted. The subject matter only
(I repeat it) has passed from the hands of the
government. If the Legislature should order
a goyemmeot debt to be paid by a sate of the
publio stock, and it is so paid, the l^slatin
power over the funds of the government re-
mains unrestricted, although it has ceased over
the particular stock, which has been thus sold.
For the present, 1 pass over all further consid-
eration of this topic, aa it will necessarily come
again under review, in examining an objection ,
of a more broad and comprehensive nature. I
Tbsn, again, how is it established that this |
is a grant in derogation of the rights and in-
terests of the people! No individual citizen
has any right to build a bridge over navigable
waters; and consequently he is deprived of no
ight, when a grant is made to any other pet-
ona for that purpose. Whether it promotai
jr injures the particular interest of an Indi-
vidual citiien, constitutes no ground tor jndi-
ciat or legislative interference, beyond what
U« owa rifbti Juitify. When, then, it ia nid
\m
Tbk Cuablu Rivn BiiDcnt t. Toa Waikh Bbidgk ct it.
ttmt iMh ■ srant )■ In demgitloo of the rig;hta
■od Interett* of the people, we must under-
•t*Bd tfa*t reffrence is had to the rigfat« and
iHtercHta common to the whole people, as in eh
(aneh as the right of navigation), or belonging
to them as a political bodj ; or. in other words,
the ri^ts aad IntereatB of the SUte. Now, I
eaiinot understand how an; grant of a tran-
ehlae is a derogation from the righta of the peo-
ple of the State, any more than a grant of
public land. The right, in each case, is gone
to the extent of the thing grunted, and so far
IIIBL7 be said to derogate from, that ii to say, to
lessen the rights ot the people, or of the State.
But that is not the sense in which the argu-
BiMit is pressed; for, hy derogstlon, U here
meant an Injurious or miiehievous detraction
from the sovereign rights of the State. On
the other hand, there can be no derogation
from the rights of the people, as such, except
It applies to rights common there before;
which the huildins of a bridge over navigable
water* certainly is not. If it had been aald
• OS*] that 'the grant of tfats bridge was in
denwation of the common right of navigating
the Chartea River, by reason of ita obstraeting,
pro tanto. a free and open passage, the gronnd
would have been intElligible. So, if Tt had
b«en an sxctusite grant of the navigation of
that stream. But, if at the same time, equiv-
alent public rights of a different nature, but
of greater public accommodation and use, had
been obtained ; it couM hardly have been said.
In % eorreet sense, that there was ■nj' deroga-
tion from the rights of the people, or the
rights of (he State. It would be a mere ex-
change of one public right for another.
Then, again, as to the grant being against
the interests of the people. I know not how
that ii established, and certainly It is not to be
assumed. It will hardly be contended that
every grant of the government Is injurious to
the interests of the people, or that every grant
of a franchise must necesssrily be so. The
erection of a bridge may be of the highest util-
Itj to the people. It mny essentiatiy promote
tM pnhHo convenience, and aid the public in-
terests, and protect the public property. And
f( no person can be founcl willing to undertake
•nch a work, unless they receive In return the
oxelneive privilege of erecting It, and taking
toll ; snrely it cannot be said, as of course, that
■nch a grant, under such circumstances, is, per
•e, against the interests of the people. Whether
Ou) grant of a franchise is, or is not, on the
whole, promotive of the public interests, is a
Juestlon of fact and judgment, upon which
IfTe^vnt minds may entertain different opin-
iona. It is not to be jndicislly assumed to be
fnjurioua, and then the grant to be reasoned
4<nni. It is a matter exclusively eonflded to
tbm Bober eoneideration of the Legislature ;
wbi«b is invested with full discretion, and poi-
—lies ample means to decide it. For myself,
■leaning to speak with all due deference for
others, I know of no power or authority eon-
flded to the judicial department, to rejudge the
decisions of the Legislature upon such a aub-
Jcet. It has an exclusive ri^ht to make the
grant, and to decide whether it be, or be not,
tor the public interests. It is to be presumed,
If the grant is made, that it is made from a
Ugk sense of publle duty, to promote the pub-
lic welfare, and to establish the public prosper
ity. In this very case the Legislature naa, up-
on the very face of the act, made a solemn
declaration as to the motive for passing it, that
— "The erecting of a bridge over Charles River
etc., will be of great public utility."
What court of justice is invested with au-
thority to gainsay this 'declaration T [*eoi
To strike it out of the act, and reason upon
the other words, as If it were not tberel To
pronounce that a grant is against the interests
nf the people which the Legislature has da-
dared to be of great utility to the people! It
seems to me to be our du^ to interpret laws,
snd not to wander Into speculations upon their
policy. And where, I may ask, Is the proof
that Charles River Bridge lias been against the
interests of the people! The record contains
no sueh proof, and it is, therefore, ■ just pre-
sumption that It does not exist.
Again, It is argued that the present grant )•
a grant of a monopoly, and of exclusive priv-
ileges; and therefore to be construed by the
most narrow mode of interpretation. The
sixth artiela of the bill of rights of Iifassa-
chusetts has been supposed to support the ob-
jection; "No man, nor corporation, or associa-
tion of men, have any other title to obtain ad-
vantages or particular and exclusive privileges
distinct from those of the eommuntty, than
what arises from the consideration of services
rendered to the public; and this title being in
nature neither hereditary nor transmisaive to
children, or deseendents, or relations by blood,
the idea of a man bom a magistrate, law giver,
or judge, ia absurd and unnatural." Now, tl
it plain that taking this whole clause together,
it is not an Inhibition of all legisIaUve grants
of exelualve privileges, hut a promulgation of
the reasons why there should be no hereditaiT
magistrates, legislators, or judges. But It aa-
raits, by necessary Implication, the right to
grant exclusive privileges for public services,
without ascertaining of what nature those ser-
vices may be. It might be sufficient to say
that all the learned judges In the State court
admitted that the grant of an exclusive right
to take toll at a ferir, or a bridge, or a turn-
pike, is Dot a monopoly which is deemed odiuu*
in law; nor one of the particular and exclusive
privil^fcs, distinct from those of the commu-
nity, which are reprobated in the bill of riglits.
All that was asserted by the judges, opposed
to a libera] interpretation of this grant, was,
that it tended to promote monopolies. Bee the
case, 7 Pick. R. 116, 132, 1ST.
Again, the old colonial Act of 1041 agahirt
monopolies, has been relied on to fortin the
same argument. The statute is merely In af-
firmance of the principles of the English stat-
ute against monopolies of 21 James I. ch. 3;
and if it were now in force (which It ia not) It
would require the same construction.
There is great virtue in particular phrase*,
and when It is once 'suggested that a [*Se/
grant is of the nature or tendency of a mo-
nopoly, the mlw* almost Instantaneously p*^
pares Itself to reject every construction whicL
does not pare It down to the narrowest limits.
It is an honest prajudice, which grew up in
former times fr^m the gross abuses of the royal
prerogativBSj to which, tn America, there ar«
DO BlULioMUB authoritlea. Bnt) what Ia a no- 1
ad« M
finruuB CoDK or the UmnD Statu.
nopolT, as undrratood <n lawT It ii an exolu-
■tve right graiitcd to k few, of tomethmg which
wo* before of comiuoD right. Thus a pri*l-
tege granted b; ths king for the sole buying,
Mlling, making, working, or using a thing.
wherebj' the subject, in general, ii restrained
from that llbert/ of manufacturing or tradinK.
which before hs had, is a monopolj. 4 Black.
Com. 159; Bac Abr. Prerogative, F, 4.
My Lord Coke, in hli Fleas of the Crovn, 3
but. 181, has given thia verj definition o! a
monopoly, and that deflniticm was approved b;
Holt and Treby (afterward* chief justices of
King's Bench), arguendo, as counsel, in the
great case of The East India Company t. San-
dys, 10 Howell, State Trials, 366. His words
are, that a monopoly ia "an institution by the
king, by his grant, commission, or otherwise, to
any persons or corporationa, of or lor the sale
buying, selling, making, working or using of
everything whereby any persons or corpora-
tions are sntight to b« restrained of any {ree-
don or liberty they had before, or hindered in
their lawful trade." So that it is not the case
possess and enjoy the privilege or franchise
f ranted, as a common right 10 Howell, State
rials, 4£6. And ft deserves an especial re-
mark that this doctrine was an admitted con-
cession, pervading the entire arguments o[ the
eounsel who opposed, as well as of those wlio
maintained the srant of the exclusive trade in
the ease of The East India Company v. Sandys
10 How. St. Tr. 36S, a ease which constitutes,
in a great measure, the l>a*i* of this branch of
No sound lawyer will, I presume, assert that
the grant of a right to erect a bridge over a
navigable stream, is a grant of a eominon right.
Before such grant, bad all the citizens of the
State a right to erect bridges over navigable
streamsl Certainly they had notj and, tnere-
fore, the grant was no restriction of any c(»n-
mon right. It was neither a monopoly, nor, in
a I^al sense, hod it any tendency to a monop-
oly. It took from no citizen what he possessed
before, and had no tendency to take it from
him. It took, indeed, from the Legislature the
poner of granting the same identical privilege
•08*] or franchise *to any other persons. But
this made it no more a monoply than the grant
of the public stock or funds of a State far a
valuable consideration. Even in cases of monop-
olies, strictly so called, if the nature of the
nant be such that it is for the public good, as
In cases of patents for inventions, the rule has
always been to give them a favorable construc-
tion in support of tlie patent, as Lord Chief
Justice Eyre said, ut res magis valeat quam
pereat. Boulton v. Bull, 2 H. Bl. 463, SOO.
But it has been argued, and the argument
has been pressed in every form which ingenuity
oould suggest, that if grants of this nature are
to be eonstrued liberally, as conferrinK any ex-
elusive rights on the grantees, it wilt Interpose
an effectual barrier against all general improve-
ments of the country. For myself, I profess
not to feel the cogency of this argument; either
in its general application to the grant of fran-
chises, or in its special application to the pres-
ent grant. This is a subject upon which differ-
ent minda mu well arrivt at different conclv-
I4S
siona, both as to policy and prineti^eb %m
may, and will, complexionally differ up<m top-
ics of this sort, according to their natural and
acquired habits of speculation and opinion. Fw
my own part, I can conceive of no surer plan
to arrest all public improvements, founded on
private capital and enterprise, than to make tli*
outlay of that capital uncertain and question-
able, both as to security and as to productive-
ness. No man will hazard his capital In a^
enterprise in which, if there be a toes, it mast
be borne exclasivety by himself; and if thoe
be success, he bas not the slightest security of
enjoying the rewards of that success for a sin-
gle moment. If the government means to in-
vite its citiiens to enlarge the public comforts
and conveniences, to establish bridges, or turn-
pikea, or canals, or railroads, there must b*
some pledge that the property will be safe; that
the enjoyment will be co-ei tensive with the
grant ; and that success will not be the signal at
a general combination to overthrow ita rights
and to titke away its profits. The very agita-
tion of a question of this sort Is sufficient to
alarm every stockholder in every public enter-
prise of this sort throughout the whole conntij.
Already, in my native State, the Legislature
has found it necessary expressly to concede the
exclusive privilege here contended against, in
order to insure the accomplishment of a Mil-
rood for the beneSt of the public. And yet we
are told that all such exclusive grant* are %t
the detriment of the public.
But if there were any foundation for the ^■
gument itself in a 'general view, it [*60l
would totally fail in ita application to the pres-
ent ease. Here the grant, however ezclusivs,
is but for a short and limited period, more than
two third* of which has already elapsed; and,
when it Is gone, the whole property and fran-
chise are to revert to the State. The Legisla-
ture exercised a wholesome foresight on the sub-
ject, and within a reasonable period it will bsvs
an unrestricted authority to do whatever It
may choose, in the appropriation of the brid^
and its tolls. There is not, then, under any fair
aspect of the case, the slightest reason to pre-
sume that public improvements either can or
will be injuriously retarded by a liberal con-
struction of the present grant.
I bave thus endeavored to answer, and I think
I have successfully snswered all the argument*
(which indeed run into each other) adduced to
justify a strict constructiou of the present char-
ter. I go farther, and maintain not only that
it is not a case for strict construction, but that
the charter upon its very face, by its terms, and
for its professed objects, demands from the
oourt, upon undeniable principles of law, a
favorable oonstruction for the grantees. In t1
lie utility; and this exposition of its own mo-
tives for the grant requires the court to give a
liberal interpretation, in order to promote, and
not to destroy an enterprise of great publie
utility. In the next place, the grant is a son-
tract for a valuable consideration, and a full
and adequate cone i deration. The proprietors
are to lay out a large sum of money (and in
those times it was a very large outlay of ea^
tal) in erecting a bridge; they are to keep it n
vapair during Um whole period of forty years|
t 11.
»M7
Thk Chailu Rivn Bbimi t. Thi Wauer Bbunk n ai.
thej mn to lurrender It la good repair kt the
end of thst period to the State, mi its own prop'
ert?; they «re to pay, duriog the wbole periMl,
an annuity of two hundred pound* to Harvard
College; and they are to incur other heavy ex-
penses and burdens, for the public a<!commoda'
tion. In return far sll these chmrgei, they sre
entitled to no more than the receipt of ths tolls
during the forty yean, for their re-imburtement
of capital, interest and expenses. With all
this they are to take upon themselves the
chances of success; and If the enterpiise fails,
the Idas Is ezcluBively their own. Kor let any
mao imagine that there was not, at the time
when this charter nas panted, much solid
ground for doubting iuccgss. In order to en-
tertain a just view of this auhject, we must
go back to that period of general bankruptcy,
and distress and difficulty. The Constitution
• 10'] of 'the United SUtes was not only
not then In existence, but it nas not then
«ven dreamed of. The union of the States was
crumbling into ruins, under the old confedera-
tion. Agriculture, manufactures and oom-
meree were at their lowest ebb. niere was
Infinite danger to all the States from local in-
terests and jealousies, and from the apparent
iin possibility of a much longer adherence to
that shadow of a government, the Continental
Congress. And even four years afterwards,
when every evil had been greatly aggravated,
and civil war was adiied to other calamities,
the Constitution of the United States was all
but shipwrecked in passing through the State
conventions. It was adopted by very slender
najoritiei. These are hlitortcal facta which
required no coloring to give them elTeot, and ad-
mitted of no concealment to seduce men into
■cheme* of future aggrandizement. I would
«ven now put it to the cnninon sense of every
man, whether, if the Constitution of the United
States had not been adopted, ths charter would
hKva been worth a forty years' purchase ol the
tolls.
This Is not all. It is well known, historfoal-
ly, that this was the very first bridge ever con-
atrncted in New Ea[;1a>]<l, over navigable tide-
waten so near the i?a. The ritfors of our cli-
mate, the dangers from sudden thaws and fraes-
Ing, sad the obstructions from Ice in a rapid
etUTcnt, were deemed by many persons to b«
insuperable obstacle* to the success of such a
project. It was tielieved that the bridge would
•careetj stand a single severe winter. And I
myself am old enouj2;]it to know, that in re^rd
to other arms of the sea, at much later periods,
the same doubts have hnd a strong and depress-
ing influence upon public enterprisea. If
Charles River Bridge had been carried away
during the first or seeond season after its erec-
tion, it is far from being certain, that up to
this moment another bridge, upon such an
Km) of the sea, would ersr have been Greeted
te Hasaacfausetts. I stat* these things which
are of public notoriety, to repel the notion
that the Legislature was surprised into an
tncautioua grant, or that the reward was more
than adequate to the peril*. There was a full
and adequate consideration, in a pecuniary
sense, for the charter. But, In a more general
sense, the erection of the bridge, as a matter
of aceommodatton, has been incalculably bene-
ficial to the publia VdIm*, therefor*, w« ar*
• Lad.
whollr to desregard the declarations of the
Legislature and the objects of the charter,
and the historical fact* of the times; and i~
dulge in mere private speculations of profit
and loss by our present lights and experience,
*it aeems to me tnat the court is bound ['til
to eome to the interpretation of this charter,
with a persuasion that it was granted in
furtherance, and not in derogation of the pnb-
lic good.
But I do not insist npon any extraordinary
liberality in interpreting this charter. All I
contend (or is that It shall receive a fair and
reasonable interpretation, so as to carry Into
effect the legislative intention, and secure to
the ^ntees a just security for their privileges.
1 might, indeed, well have spared myself any
investigation of the principles upon which
royal and legislative grants are ordinarily to
be construed; for this court has itself fur-
nished an unequivocal rule for interpreting all
fublic contracts. The present grant is con-
es9edly a contract, and in II uidck coper's Les-
see V. Douglas, 3 Cranch R. 1 ; S. C. 1 Peters'*
Cond. R. 446, this court said: "This is a con-
tract, and although a State is a party, it
ought to be construed according to those well
established principles which regulate contracts
generally;" that is, precisely as in cases be-
tween mere private persons, taking Into con-
sideration the nature and object of the grant.
A like rule was adopted by this court in ij«
cose of a contract by the United States. The
United States v. Gurney, 4 Cranch, 333; S. C.
2 Peters'* Condensed R. 132. And the good
sense and juatice of the role seem equally ir-
Let us now enter upon the consideration of
the terms of the charter. In my judgment,
nothing can be more plain than that it is a
grant of a right to erect a bridge between Bos-
ton and Charlestown, in the place where the
ferry between those towns was kept. It has
been said that the charter itself does not de-
scribe the bridge as between Charlestown and
Boston, but grants an authority to erect "a
bridge over Charles River, in the place where
the old ferry was then kept;" and that these
towns are not named, except for the purpose
of describing the then ferry. Now, thi* leems
to me, with all due deference, to be a distinc-
tion without a difTerence. The bridge i* to be
erected in the place wbere ths old ferry then
was. But where wa* it to b^in, and where
was it to terminate r Boston and Charlestown
are the only possible terminal, for the ferry-
way* were there; and it was to be built be-
tween Boston and Charlestown, because the
ferry was between them. Surely, according to
the true sense of the preamble, where alone the
descriptive words occur (for it Is a great mis-
take to suppose that the enacting clause any-
where refers, except by implication, to the lo-
cation of the bridge), it Is whollv Immaterial
whether we read the clause, "^vbereas ths
ereeting of * bridge 'over Charles [*Sia
River Si the place where the fenT- between
Boston and Charlestown is now kept;" or
"whereas the erecting of a bridge over Charles
River between Charlestown and Boston, where
the ferry is now kept." In each case the bridge
is to be between Boston and Charlestown, and
tlw temlni *n tlw fenywaya. The title of
«It
ScPBKKK Conn of tbi UHms Btatbb.
the a<t put* tfaia bejond all eontroverBj; for ft
la "Ao Act for incorporsting certain perBDni
tor the purpoae of building a bridee over
Chftriea River between BosUm and Charlei-
town, etc." But, then, we are told that no
rule In conntrulng atatutea ia better Rt ttled
than that the title of an act does not conBlitute
Any part of the srt. If by this no more be
Meant tlio thnt the title of an act eonsti-
tiitca no vbrt of tts enacting clausr^a, the ac-
enraey o( «ne position will not be disputpii.
But if it ia meant to aay that the title of tlie
Mt does not belong to it for any purpose of ex-
planation or construction, and that in no sengc
W it any part of the act, I, for one, must deny
Uiat there is anj such settled principle of law.
On the contrary, 1 understand that the title of
an act (though it is not ordinarily resorted to)
may be legitimately resorted to for the purpose
of ascertaining tlie legislative intention, just
aa much as any other part of the act. In point
of fact it is usually resorted to, whenever it
may assist us in removin); any ambiguities in
the enacting clauses. Thus, in the great case
of Sutton's Hospital, 10 Co. R. 3, 24, b, the
title of an act of Parliament was thought not
unworthy to be examined in construing the
design of the act In Boulton v. Bull, 2 Hen.
Bl. 463, 600, the effect of the title of an act
was largely Insisted upon in the argument, as
furnishing a key to the intent of the enacting
clauses. And Lord Chief Justice Eyre admit-
ted the propriety of the argument, and met it
by saying that, in that case, he would, If
neceaaary, expound the word "engine," in the
body of the bill in opposition to the title to it,
to mean a "method" in order to support the
Ktent. In the case of The United States v.
sher, 2 Cranch, R. 388 ; S. C. 1 Peters's Cond.
B. 421, the Supreme Court of the United
States expressly recognized the doctrine, and
jreve ft a prnelical application. In that case
the Chief justice, in delivering the opinion of
the court, after adverting to the argument at
the bar respecting the degree of influence which
the title of an act ought to have in construing
the enacting clauses, said: "Where the mind
labors to discover the design of the Ijcgisla-
ture, it seizes everything from which aid can be
derived; and in such a case the title claims a
degree of notice, and will have its due share
of consideration.'
(13*] 'According to my views of the terms
of the charter, the grant, then, ft of the fran-
chise of erecting a brid)^ over Charles River,
between Charlestown and Boston, and of taking
tolls or pontase from passengers. It is, there-
fore, limited to those towns; and does not ex-
clude the Legislature from any right to grant
a bridge over the same river between any other
towns and Boston; as, tor example, between
Chelsea and Boston, or Cambridge and Boston,
or Roxbury and Boston.
But although, in my judgment, this is the
true construction of the limits of the charter,
ex vi tertninomm, my opinion doe* not, In any
important degree, rest upon it. Talcing this
to oe a grant of a right to buHd a bridge over
Charles River, in the place where the old ferry
between Charlestown and Boston was then
kept (as is contended for by the defendants),
■till it has, as alt such grants must have, a
, Bxed locality, and the same question meets us:
^ Ts the Krant confined to the mere riiht to erect
a bridge on tbe proper spot, and to take toll M
local limits of the bridge T Or does it. by Im-
plication, include an exclusive franchise on
each siiie to ao extent which shall shut out
any injurious competition! In other word*,
does the grant still leave the Legislature at
liberty to erect other bridges on either ^de,
free or with tolls, even fn juxtaposition with
the timbers and planks of this bridge! Or (•
them an implied obligation on the pnrt of the
Legislature, to abstain from all acts of this
sort, whicb shall impair or destroy the value
of the grant! The defendants contend that
tlie exclusive right of the plaintilTs extends do
farther than the planks and timbers of the
bridge; and that tbe legislature is at full
liberty to grant any new bridge, however near;
and although it may take away a large por-
tion, or even the whole of the travel which
would otherwise pass over the bridge of the
plaintiffs. And to this extent the defendants
must contend, for their bridge is, to all intents
and purposes, in a legal and practical sense,
contiguous to that of the plaintiffs.
The argument of the di'feitdants is that the
plaintilTs are to take nothing by imgilicRtion.
Either (say thev) the exclusive grant extendi
only to the local limits of the bridge, or it ex-
tends the whole length of the river, or at least
up to old Cambrid;;e Brid;^. The latter con-
struction Would be absurd and monstrous, and
therefore the former must be the true one.
Now, I utterly deny the altem^xtives involved
in the dilemma. The right to build a bn^^v
over a •river, and to take toll, may well ['iM
include an exclusive [ranchis; biiyond the loca.
limits of the bridge, and yet not extend thrju|,-1i
the whole course of tlie river, or even to in/
considerable distance on the river. Tiiere i no
difficulty In common sense, or in law, in main-
taining such a doctrine. But then, it is aikcd.
what limits can be assigned to juch a fmnrhise*
The answer is obvious; the grant carries with
it an eiciusive franchise to a reasonable dis-
tance on the river, so thnt the ordinary travd
to the bridge sliall not be diverted by any new
bridge to the injury or ruin of the frnnehiae.
A new bridge, which would be a nuisance to
the old bridge, would be within the reach of
its exclusive right Tlie qui^stion would not be
so much as to the fact of distance, a* ft would
be as to the fact of nufsance. There Is nothing
new in such expositions of incorporeal rights,
and nothing new fn thus administering, upoa
this foundation, remedies in r^ard thereto.
The doctrine is coeval with the common law
itflelf. Suppose an action is brouffht for tliiit-
ting up the ancient lights belonging to a raet-
anago, or for diverting a watercourse, or for
flawing back a stream, or for erecting a nni-
atnee fear a dwelling-house; the question !■
cases is not a question of mere distance— of
mere feet and Inches, but of injury — perma-
nent, reni. and substantial injury, to be decided
upon all the circumstancrs of the case. But of
this I shall speak again hereafter.
Let u« see what is the rexult of the narrow
oonstruction contended for by the defendants.
If that result be such aa is Inconsistent with all
reasonable pr^umptiona growing out of tbe
ease; if it be repugnant to the principles of
equal justice: it it will defeat the whole obfeets
isn
TuK Cbjjuju Biveb fUDOE «. Tuk Wabie.h BRioaB r u.
of tb« ^nuit; It will not, I tnut, be insbted on
th«t tbia court is bound to adopt it.
I have before had occasion to talia notica
thAt the origioa] charter it a limited one for
fort; yean; that the whole compenaation of
the proprtetoiB for all their outlay of capitul,
their annuity to Harvard Colics and their
other annual burdena and charges, it to arise
out of the tolls allowed tbem during that pe-
riod. No other fund is provided foi their ia-
demnity, and they are to take it subject to all
the perils of failure and the chances of an in-
adequate remuneration. The moment the cbar-
tw was accepted, the proprietora were bound
to ail tlie obligations of this contract, on their
rt. Whether the bargain should turn out
be good or bad, productive or unproductive
of profit, did not vary their duties. The
frMichiae was not a mere jus privatum. From
Ibe moment of its acceptance and the erec-
fflS*] tion of *tha bridge, it became charged
with a jus publicum. The government had a
right to insist that the bridge ahould be kept in
perfect repair for public travel by the proprie-
torai that the bridge ahould be lighted; that
the draw should be raised without expense, for
the purposes of nsvigjitton. And if the pro-
prletora had refused or neglected to do their
duty in any of these respects, they would have
been liable to a public prosecution. It could be
no Kpolog}' or defeute that the bridge was un-
profitable: that the tolls were inadequate; that
the repairs were aipensive; or that the whole
eoncern waa a ruinous enterprise. The proprie-
tors took the charter cum oaere, and muet
abide by their choice. It ia no answer to all
thia to say that the proprietors, might surren-
der their diarter. and thus escape from the bur-
den. They could have do right to make such »
Burreoder. It would depend upon the good
pleasure of the government whether it would
ncoept of auch a surrender or not; and until
when that hour ahal] liave arrived, the bridgr
Itaelf, in food repair, U to b« delivered to the
Stkt*.
Now, I put it to the common sense of every
man, whether if at the moment of granting
the diarter the Legislature bad laid to the pro-
Ctora — you shall buiU the bridge; you shall
' the burdens; you shall be bound by the
_ .; and your sole re-imbursement shall be
n the tolls of forty years: and yet we will
not even guaranty you any oertainty of reeeiv-
fug Miy tolla. On the contrary, we reserve to
otuaelves the full power and authority to erect
other bridges, toll or free bridges, according to
our own ttte will and pleaaure, contiguous to
youn, and having the same termini witb
younj and if you are succeasful we may thus
supplant you, divide, destroy your profits, and
anuihilate your tolls, without annihilating your
burdens: if, I aaj, such had been the language
of the Legislature, is there a man livine of or-
diaary discretion or prudsnoe, who would have
•ceeptad auoh a charter upon auch terms I I
fearleaaly anawer no. There would have been
such n gross ioadequaey of consideration, and
maati a total insecurity of all the rights ol
pnpaTty, under such drcumatancea, that the
projaot would have dropped, still-born. And I
i the queation fnrtbar, wbetlur any Legia*
SIS."
lature, meaning to promote a project of peniui-
ncnt public utility (auch as this coDfeMtedly
was), would ever have dreamed of auch a qutl-
iiii'alion of its own grant, when it sought to en-
list private capital and private patronage to in-
sure tho accomplishment of it I
*Yet, this U the very form and pree- ['SIC
sure of the present case. It is not an imagin-
ary and extravagant case. Warren Bridge baa
been erected, under such a supposed reserved
authority, in the immediate neighborhood of
Charles River Bridgi?; and with the same tar-
mioi, to accommodate the same line of travel.
For a half dozen years it was to be a toll
bridge for the benefit of the proprietors, to
re-imburse them for their expenditures. At
the end of that period, the bridae is to become
the property of the State, and lice of toll, un-
less the Legislature ahould licrcaftcr impose
one. In point of fact, it has since become, and
now is, under the sanction of the act of incor-
E Drat ion, and other subsequent acts, a free
ridge without the payment of any tolls for all
persons. So that, in truth, here now ia a fre^
bridge, ownrd by and erected under the au-
thority of the ComtQonwealth, which neoessari-
ly takes away all the tolls from Charles Kiver
Bridge, wliile its prolonged charter has twenty
years to run. And yet the act of the Legiala-
ture establishing Warren Bridge is said to be
no violation of the franchise granted to the
Cbarles River Bridge. The Legislature may
annihilate, nay has annihilated by its own acts
all chance of receiving tolls, by withdrawing
the whole travel; though it ia adniitled that
it cannot take away the barren right to gather
tolls, if any should occur, when there is no
travel to bring a dollar. According to the
same course of argument, the Legislature
would have a perfect right to block up every
avenue to the bridge, and obstruct every high-
way which ahould lead to it, without any vio-
lation of the chartered rights of Charles River
Bridge; and at the same time it might require
every burden to be punctiliously discharged by
ment of such propositions is so startling to mj
miud, and so irreconcilable with all my notiona
of good faith, and of any fair interpretation of
the legislative intentions, that I should always
doubt tbe soundness of any reasoning whicb
should conduct me to such results.
But it is said that there is no prohibitory
covenant in the charter, and no iiiiplicationa
are to be made of any rucb prohibition. The
proprietora are to stand ryja the letter of their
contract, and the maxim applies, de noD ap-
parentibus et non existimtibus, eadem est lex.
And yet it is conceded that the Legislature
cannot revuke or resume this grant. Why not,
I pray to know! There is no negative cove-
nant in the cbnrteri there is no express prohi-
bition to be found there. Tbe reason is plain.
Tbe prohibition arises by natural, *if ['111
not by necessary implication. It would ha
against the first principles of justice to pre-
sume that the Legislature reserved a right to
destroy its own grant. That was the doctrine
in Fletcher *. Peck, fl Cranch, 87, in this court,
and in other cases turning upon the same great
principle of political and constitutional dutf
and right. Can the Legislature hkva power to
m
SirrsMui Coun or thk Ui(itb> SxAin.
Uff
d»th*t fndirMtly, which It cannot do directljl
If It cannot tak* awkj', or reaume the fruichiae
itwlf, cmn It t&ke awaj lt« whole Bubtt&Qoe ftnd
*a]u«T If the Im.w wftl eret.te an implication
that the IjegiBlatura shall not resume iU own
grant. Is it not ^auall; as natural and as ikms-
•arj an implication that the Lc^slature ahall
not do anj act directly to prejudice its own
grant, or to destroy Its Taluet If there were
no authority in favor of so reaaonable a doe-
trine, I would say, in the language of the late
lamented Hr. Chief Justice Parker, in this very
eaaa: "I ground it on the principles of our
government and constitution, and on the Im-
mutable principlea of Justice: which ought to
bind governTnenta, as well as people."
But it is raoBt important to remember that
in the construction of all legislative granta, the
eomuon law must be talcen into eouatderationj
for the Legislature must be presumed to have
In view the general principles of construction
which are reeoKnized by the comnKin law.
Now, no principle ia better eatablished than
the principle that when a thing ia given or
granted, the law giveth, impMedl)', whatever la
necessary for the taking and enjoying the
same. This is laid down in Co. Litt. GS, a;
and ia, indeed, the dictate of common tenae
applicable to alt grants. Ia not the unobatruct-
ed posaeaaion of the tolls, indispensable to the
full enjoyment of the corporate rights granted
to the proprietora of Charles River Bridge T tf
the tolls were withdrawn, directly or indirect-
ly, by the authority of the Legialature, would
not the franchiee be utterly worthlesal A bur-
den, and not a benefit? Would not the reaerva-
tion of authority in the L^alature to create
a rival bridge impair, if it did not alsolutely
destroy the exclusive right of the proprietors
of Charlea River Bridge? I conceive it utterly
impossible to give any Other than an affirma-
tive answer to each of these questions. How,
then, are we to escape from the Goneluslon that
that which would impair or destroy the grant.
Is prohibited by implication of law from the
nature of the grant! "We are satisfied," said
Mr. Chief Justice Pareona, in delivering the
opinion of the court, in Wale* v. Stetson, 2
llasB. R. 143, 140, "that the rights legally vest-
• 18*] ed in any corporation cannot *be con-
trolled or deatroyed by any subsequent statute,
vnlesa » power for that purpoae be reaerved to
the Legislature, in the act of incorporatian."
Where is any auch reservation to be found in
the charter of Cbarlea River Bridge!
My brother Waahington (than whom few
Judge* ever possessed a sounder judgment, or
dearer learning), in hia able opinion in the ease
of Dartmouth College v. Woodward, 4 Wheat.
R. SS8, took this same view of the true sense
of the paseage in Blackstone's Commentariea,
I the following strong language in the
grantor and the grant*
fOttatT, it amounts to an extinguishment of
the king's prerogative to beatow the aame iden-
tical francbiae on another corporate body, be-
Ofuae it would prejudice hia former grant. It
Implies, therefore, a contract not to reaaaert
■• t r
BppoiiU' MuM tf ffP''"' *" ^^ V>«MBt 0M«-
None of IU then doubt«d ita aitira e ,
when he uttered it, and 1 am not able to par*
cejve how the legal inference can now be tm-
caped. The eaae of The Chesapeake and (Miio
Canal Company v. The Baltimore and Ohio B«U
Road Company, 4 Gill ft Jidinaon's R. 1, 4, 6,
141, 14«, 149, fully aoataina the aame doctrine,
and moat elaborately ezponnda tta natnie, aad
operation, and extent.
But we are not left to mere general reaaosias
on thia subject. There are case* of grants o?
the crown in which a like conatrurtion haa
prevailed, which are m eoncluaive upon tlua
aubject in point of authority as any can be.
How stands the law in relation to grants bv
the crown of faira, markets, and ferrieal 1
apeak of grants, for all claim* of this sort tb-
Bolve themselves into granta; a prescriptioit be-
ing merely evidence of, and prcBuppoaing an an-
cient grant, which can be no longer traced, es-
eept by the constant use and possession of tlw
franchise. If the king grants a fair, or a mar-
ket, or a ferry, haa the franehiae do exiatenee
beyond the local llmiba where it is erected!
Does the grant import no more than a right
to set up such fair, or market, or ferry, leav-
ing In the crown full power and authority t«
make other ^ants of the aame nature, in jux-
tapoaition with thoee local limitaT No case, I
will venture to say, haa ever maintained auch a
doctrine, and the common law repudiates it (aa
will be preseatly shown] In the moat expraaa
The authorities are abundant to establiah
that the king cannot 'make any aee- ['Slff
ond grant which ahall prejudice the proSta of
the former grant. And why notT Because tba
grant imposes public burdens on the grantee,
and aubjecta bun to public chargea, and the
profits constitute his only means of remunera-
tioQ; and the crown ahall not be at libertj di-
rectly to impair, much lets to destroy the
whole value and objects of its grant. In con-
firmation of this reasoning, it haa been repeat-
edly laid down in the hooka that when th« king
^anta a fair, or market, or ferry, it is usual to
insert in at! auch grants a clause or proviao
that it shall not be to the prejudice of any
other existing franchise of the same nature — aa
a fair, or market, or ferry. But if auch a dauaa
or proviso is not inserted, the grant is alvraya
conatrued with the like restriction, for such a
clause will tie implied by law. And, theivfoFa^
if such new grant is without such a elauae, if
it occasion any damage either to the king, or ta
a subject in any other thing, it will ba rev-
ocable. So my Lord Coke laid it down !■ I
Inst. 406. The judges laid down the aama law
in the House of Lords in the case of The King
V. Butler, 3 Leo. ESO, 222, which was the eaaa
of a grant of a new market to the suppoaed
prejudice of an old market. Their languagv on
that occasion deaervea to be cited. It waa,
"that the king haa an nndonbted right to re-
peal a patent wherein ba ia deceived, or his
subjects prejudiced, and that by scire faciaa.'
And afterwards, referring to caaea wbare a
writ of ad qnod damnum bad bera iaaued. thmr
added, "there, the king take* notiea, that it ia
not ad damnum; and yet, it it be ad damanB,
the patent ia void; for in all aneh patonta th«
condition la implied, vii., that it be not ai
d^mwuin Wt the naldtboriBg ■wrehanta." Aid
issr
ThC Charleb Rivu Biidqk t. Thi Wasbeh Bbiimb et ai.
•»
tb«T adit^ rurtTipr, 'Hhia U poaftivelv alleged
(fn the scire fitfis) that eijnwBaio predicta eat
ad damnum et depaupprstionem etc.; which it
a aulDcient muse to revoke the patent, If thore
wera nothing more." The same doctrine Is kid
down In Hr. Sergeant Williams's learned not«
(2) to the case of Yard t. Ford, i Sannd. R.
174. Now, if In the grant of an; such fran-
ehtae of a fair, or marlet. or ferr;, there la no
implied obligation or eondition that the king
will not make anj aubsequent grant to the prej-
«dlae of aueh prior grant, or impairing ita
rights, it ta inconceivable why aiich a provi«u
donld be Implied. But if (aa the law eertainly
la) the king can make no subsequent {^rsnt to
the prejudice of his former grant, then the rca-
■on of auch implication is clear; for the kin;;
will not be presumed to intend to violnte bia
duty, but rather to he deceived in his second
grant, if to the prejudice of the first.
•SO*] *It is upon this ground, aod this
fround only, that we can explain the eatah-
ffahed doctrine in relation to ferriea. Wlieu the
erawn grants a ferrj from A to B without
uaing any worda which impart it to be an exclu-
•ive ferry, why is it (as will be presently ahown)
tbat by the commnn law the grant is construed
to be eiclusive of all other ferries between the
Hme places, or termini; at least, it such ferries
Ma wo near that tliey are injurious to the first
ferry, and tend to a dii-cet diminution of ita re-
ceipts t Plainly, it must be because from the
■sturg of such a franchise it ean have no per-
BMDent value, unless it is eiclusivk-; and the
etrcumstanoe that during the existence of the
grant, the grantee has public burdens imposed
Biton bim, raises the implication that nothing
ihall be done to the prejudice of it, while it is
• subsisting franchise. The words of the grant
do. indeed, import, per se, merely to confer a
right of ferry between A and B. But the
eoinmon law steps in, and, ut res magis valeat
Siam pereat, expands the terms into an eieln-
vc right, from tha very nature, and objeots,
Uld motives, of the grant.
I aay this is the tbeoiy of the eommon law
OB this subject. Let us now see if It is not ful-
ly borne out by the authorities in relation to
ferries; a franchise which approaches so near
to that of m bridge that human In^nulty has
not a> yet been able to state any assignable dif-
ference between them} except that one includes
the right of pontage, and the other of passage
or ferriage (sea Webb's ease, B Oo. R. 46, b);
that is, each include* public duties, and bur-
dens, and an Indemnity for these duties and
burdens by a right to receive tolls. A grant of
K ferry must always be by local limits; it must
b>Te some termini, and must be between some
fixed points, rilles, or places. But ia the fran-
ehiae of a ferry limited to the mere ferrywayiT
Unless I am greatly mistaken, there ia an un-
broken series of anthorities establishing the
contrary doctrine; a doctrine Brmly fixed in
the common law, and brought to America fay
onr ancestors as a part of their inheritance, llie
e«ae of a ferry is put sa a case of clear law by
PkJton, Justice, aa long ago as in 22 Hen. V, 14
b. "If," says he, "1 have a market or a fair on
A particular day, and another seta up a market
or fatr oa the same day in a ville, which is near
to BT market, so that my market, or my fair ia
tanalred, I aball have againat kin ta aasiae of
sn aeTlon on the coae." And the
same law is, "If I have an ancient ferry in a
ville, and another sets up another ferry upon
the same river near to my ferry, so that tha
profits of my ferry sre impaired, 1 shall have an
action on tba ease 'against him." And [*691
Kewton (who it seems was of counsel for the
defendant in that ease) admitted the law to be
ao; and gave as a reason, "for you are bound
to support the ferry, and to serve and repair it
for the eaae of the common people, snd other-
wise you shall be grievously amerced; and it ia
inquirable before the sherilT at hit toum, aod
alao before the justices in Byre," As to the
eaae of a market or fair, Newton said, that in
the king's grant of a market or fair, there la
alwaya a proviso that It should not be to the
nuisanoe of another market or fair. To which
Paston, Justice, replied, "suppose the king
grants to me a market without any proviso,
if one seta up after that time another market,
which is a nuisance to that, I shall have
against bim as assise of nuisance.'
The doctrines here laid down Heems indisput-
able law, and it was cited and approved by
Lord Abinger In Huszy v. i>^eld, 2 Cromp.
Meea. &, B^coe, 432, to which reference will
presently be made. In Bacon's Abridgment
(Prerogative, F. 1) It is laid down "that if the
king creates or giants a fair, or market, to a
person, and afterwarda grants another to an-
other person to the prejudice of the first, the
second grant is void." See 10 Viner's Abr.
Nuisance G. pi. 2. The same law is laid
down in 8 Black. Com. 218, 210. "If (saya
be) 1 am entitled to hold a fair or market,
and another person set* up a (air or market ao
near mine tlutt it doi» me a prejudice, it is a
nuisanoe to the freehold whien I have in my
market or fair." He adds, "if a ferry i* erect-
ed on a river, so near another ancient ferry as
to draw away the custom, it Is a nuisance to
the old one; tor where there is a ferry by pra-
acriptton, the owner is bound always to keep it
in repair and readiness for the ease of tha
king's subjects, otherwise he may be grieTOualy
amerced- It would be, therefore, extremely
hard if a new ferry were suffered to share the
profits, which does not also share the burden."
The same doctrine is to be found in Comyn**
Digest (Action upon the case for a Nuitanee,
A.) and in many other authorities. See Yard
T. Ford, 2 Saund. R. ITS, and note [2|; Pita.
N, Brev. 184; Hale de Port. Marli, ch. 0; Harg.
Law Tracts, p. S9; Com. Dig. Piscary, B. Id;
Market, C. 2, C. 3; 2 Black. Com. 27.
The doctrine is in England just as true now,
and just as strictly enfurced, as it wss three
centuricB ago. In Blissett v. Hart (Willes's K.
508], the plaintiff recovered damagea for a vlii-
latiou of bis right to an ancient ferry against
the defendant who had set up a neighboring
ferry to his nuisance. The court said: "A fer-
ry Is publici 'juris. It is a franchise [*6S3
that no one can erect without a license from
the crown; and when one ia erected, another
cannot be erected without an od quod damnum.
If a second ia erected without a license, the
crown haa a remedy by a quo warranto, and
the former grantee has a remedy bj aetton."
The oaae of Tripp v. Frank (4 Term R. W8)
prooaada upon Ua admlaalon of the mmt dfl»
SuTBEitK CouBr or tub Uhitb» SiATn.
IrlM, u doM Prince t. Lewia (5 Bam. & CreM.
SU), Pater t. Kemlalt {a Ham. & Creu. 703),
Hoil«r T. Chadwick (7 Barn. & Cresa. 47, note
ft), tad Hofllej T. Walker (7 Barn, t, CreM.
Tku« b a very recent caaa (alreadj alluded
to( wUcb wa* decided bj the Court of Kx-
ekaqner, upon th« fulleat consideration, and In
whlek the leading authoritiea upon this point
wen difcnaied with great acuteneas and abili-
ty. I lOflMn the eaae of Huu; v. Field, in 1835
(II Law Jouro. 239i S. C. Z Cromp. Kfecion
k Roac. 432). Lord Abinger, in deliverinB
tha opinion of the court on that occaaion, uied
the following language; "So far the autborl-
tie* appear to be dear, that if a new ferry be
Sut Dp without tbe king'i licenie, to the preju-
ice of an old one, an action will lie; and there
ia no eaae, which has the appearanoe of being
to tbe oontrar;, except tbat of Tripp v. Franli,
bareafter mentioned. Theee old authoritiea
proceed upon the ^ound, Brat, that tbe grant
of the franchiae ia good in law, being for a aiil-
fldent eonaideration to the subject, who, as he
reoeived a benefit, may have by tbe grant of
tbe orown a corresponding obligation imposed
upon him in return for the benefit received;
and second, that if another, without legal au-
thority interrupts the grantee iu the exerciae
of his franchiae by withdrawing tbe profits of
paaaengera, which he would otherwise have
bad, and which he has in a manner purchased
from the public at the price of hia correapond-
ing liability, tbe diaturber ia subject to an ac-
tion for the injury. And the case ia in tbis
respect anaiogoua to the grant of a fair or mar-
ked which ia also a privilege of the nature of a
monopoly. A public ferry, then, is a publli
ler-
a places where the public have
rights, as towns or villes, or highways leading
to towns or viltes. The right of the grantee ta
in one case an exclusive right of carrying from
town to town; in the other of carrying from
oDe point to tbe other, all, who are ^ing Louse
tbe highway to the nearest town or ville towhich
the highway leada on the other side. Any new
ferry, therefore, which has the effect of taking
away such passengers, must lie injurious. For
Instance, if anyone should construct a new
■SB*] landing 'place at a abort distance of
one terminus of the terry, and make a procla-
mation of carrying passengers over from the
other terminus, and then landing them at that
Clace, from which they pass to the same public
Igbwaf, npon whlcb the ferry Is established,
before it reaches any town or ville, by which
tbe paasengers go immediately to tbe flrst and
all tbe villes, to which that highway leada;
there eoutd not be any doubt but such an act
would be an infringement of the right of ferry,
whether the person so acting intended to de-
fnud the grantee of the ferry, or not. If such
Bew ferry ba nearer, or the boat used more
eommodioua, or the fare leas; it is obvious that
■11 the custom must be inevitably withdrawn
from the old ferry. And thua the grantee would
be deprived of all the benefit of the franchise,
whilst he eoiitinued liable to all the burdens
fanpoaed upon him."
language mora apposite to the present case
MUld samely have been lued. And what
■Mkaa tt atiU atnuv* !• that the tot om ba-
•»«
fore the mart was of ■ new ferry etartiif •■
one side from the aame town, but not at tka
aame place in the town, to a tcmiiiuia oa tka
other aide different from that of tbe oU feiry-
houae, and more than a half a mile from it, aut
tlience by a highway communicated with tha
highway which was connected with tbe old
ferry, at a mile distance from the ferry. Now,
if the right of the old ferry did not, Irf impli-
cation, extend on either side beyond its local
termini, no question could have ariaan as to the
disturlianoe. Trotter v. Harris (2 Youngc t,
Jerv. R. 286) proceeded upon similar priaei-
ples, though it did not call for ao axaet ma ax-
position of them.
It is observable that in the eaae of Huccy t.
Field the defendant did not claim under anj li-
cense or grant from tbe crown, and therefore it
may be supposed, in argument, that it doem mat
apply to a case where that ia a grant of the bcw
ferry from the crown. But bi point of law
there is no difference between the cases. Ia
each case the new ferry must be treated »a a
clear disturbance of the righta of tbe old fwrrj,
or It ia not in either case; for If the first grant
does not, by ininlication, carry an excluaiva
right above and oelow Its local termini, tbea
there can be no pretense, in either case, for tlte
grantee of the old ferry to complain of tbe oew
ferry; for it does not violate nla rights under
his grant. If the first grant does, by implicai-
tion, carry an excluEive right above and below
ita local termini, to tar aa it may be prejudiced
or disturbed by a oew ferry, then It is eqnaUy
clear, upon eatabllshed principles, that the king
'cannot, by a new grant prejudice his ['•34
former grant; for the law deprivea him of uiy
such prerogative. It is true that where the new
ferry is got up without a license from tha
crown, it may be abated as a nuisance, upon •
quo warranto or information, by the erowB.
But this will not confer any r^t of action om
the grantee of the old ferry, unleaa hia own
rights have been disturbed.
I have said that tbl* ia tha result of estab-
lished principles, and the eaae of the Islinsitaa
Market, recently before the judges of England
upon certain questions submitted to them by
the House of Lords, tbe very point as to tha
most solemn and conclusive nature upon tbia
identical point of franchise. What givea it
still more importance is that In the laat
three questions propoied to the judgra bj
the House of Lords, the very point as to tha
power of the king to make a second grant of a
market to the prejudice of his former grant,
within the limits of the common law, aroae^
and was pointedly answered in tbe negative.
On that occasion the judges said, that wbila
the first grant of a market remains unrepealed,
even the default of tbe grantee of the ftaa-
ciiise. In not providing, according to his dutj,
proper accommodationa tor the public, cannot
operate, in point of law, as a ground for grant-
ing a new coarter to another to hold a markai
within the common law, which shall really ba
injurious to the eiiating markeL The judgea,
after adverting to the usual course ol Um iaau-
ing of a writ of ad quod damnum, In oaaea
where a new market ia aaked for, added: "We
do not say tbat a writ of «d quod damnum la
absolutely neceasary. Bnt if tha crown vata
to graot a new etaartai without a writ of al
PMua 11,
Xbs CtuMi^ Kiva BUDU T. Tm Wahbkh Biimb r a
^odA dMBBvm, ftBi k sbonM ftppur that tlie
IntaNSta of otiwr penoni were prejudiced, the
Grown would be Bupposed to be deceived, ftiid
the grant migbt be repealed on ■ eelre facias-"
And they cited, with approbation, the doctrine
•f Lord Coke (in 2 Inat MS), that "^t om
held a market either bj preaeription or by l«t-
Un patent, and another obtaina a market to
Un Duiaaace of the former market, he aliall not
terry till ba have aTOided the lettera patent of
^a latter market by courae of law, that lie may
hsT« an aaaize of nuiumce:" thua establishing
Um doctrine that there ia do difference in point
of law, whether the first market be by preacrip-
tion or by grant, or whether the new market be
with or without a patent from the crown. In
each case the remedy ii the aame for the owner
^ tiie Brat market if the new market la a nnl-
aanoe to him. The judgea alao held that the
•Xft*] eircumatance *oI the benefit of the
tiublie requiring a new market would not, of
taelf, warrant the grant of the new market.
llr. Dane, in hia Abridgment [8 Dane's
Abr. eh. 67, p. 683), laya down the doctrine
in terms equally broad and comprehensive, aa
applicable to America. After having spoken
of a ferry aa imposiug burdens, publici juria,
he adda, "in thia way a ferry becomes proper-
ty, an incorporeal hereditamentj the ownerl of
which, for tfag public coovenitnce being obliged
b7 law to perform certain public aervices, must,
aa a reasonable equivalent, be protected in thia
property." And he cites the case of Chadwick
*. The Proprictoia of the Haverhill Bridge, aa
directly in point; that the erection of a neigh-
boring bridga under the authority of the Leg-
ialature is a nuisance to a ferry. Notwith-
standing all the commentary bestowed on that
eaaa to eacape from its legal preasure, I am of
opinion that the report of the referee* never
could faavo been accepted by the court, or judg-
ment given thereon, if the declaration had not
•tated a right which in point of law wsa rapa-
blo of aupporting such a judgment. The court
aaama, from Mr. Dane's atateMent of the eaac,
elaarly to have reoogniied the title of the
plaintiff, if he should ^ve himself the owner
of a ferry. Besides, without disparagement to
any other man, Mr. Dane himaelf (the chair-
I of the refereea), from hla great learning
oharactor upon such a iubjeet.
It ii true that there la the case of Churchman
▼. Tunatal (Hard. R. 162), where a different
doctrine as to a ferry was laid down. But that
aaae b repugnant to all former coses, as well aa
later caaea; and Lord Ch. Baron Macdonald, In
Tha Attorney -General v. Richard (Z Anst. R.
803)i informs ns that it was afterwards ovcr-
tnmed. Lord Abinger, in Huzzy v. Field (13
Law Jour. SSB; 8. C. 2 Cromp. Mees. A Rotcoe,
43S), goes farther, and informs ua that after
the bill in that caae waa diamiased (which waa
a bill by a farmer of a ferr;y, aa it should seem,
tuider the crown, for an injunction to restrain
the defendant, who had lands on both sides
of the Thames, three quarters of a mile off,
•ad who waa in the habit of ferrying paaaen-
M» across, from continuing to do so) another
Mil was brought after the Reatormtloo, in 1603,
and a decree mode by Lord Hale in (a«or of
tho plaintiff, tbftt the new farry should be
f>ut down. This Ust deterntinatkni b azMed-
ngly strong, carrying the implication in reMid
to the francjiiae of a ferry, as exclusive of all
other ferries 'injurious to it, to a very [*6S6
enlarged extent; and it waa mode hy one of
tbe greatest judgea who ever adorned the Bug-
liah bench.
But it haa been auggested that the dootrtiMS
as to ferries is confined to ancient farrles by
prescription, and doea not apply to those when
there is a grant, which may be ahown. In
the former caae tbe exclusive right may ba
proved by long uae, and exeluEive use. In
the latter, tha terms of the grant show whether
it is exclusive or not; snd if not stated to be
exclusive in the grant, it cannot hy implication
be preaumed to be exclusive. Now, thara fa
no authority ahown for such a distinction, and
it is not sound in itself. If a ferry exists by
prescription, nothing mora, from the nature of
the thing can be establiabed by long poaaession,
than that the ferry originated in some grant,
and that it haa local limits, from the terrywaya
ou one sida to tboae on the other aide. The mere
abaence of any other near ferry provea nothing,
except that there is no competition; for until
thero is some interference by the erection of
another ferry, there can be nothing exclusive
ence auould occur, then the question might
arise, and the long use could establish no mors
than the rightful possession of the francbiae.
Tbe question whether the franchise is excluaiva
or not moat depend upon the nature of such a
franchise at the common law, and the implica-
tions belonging to it. In short, it Is in the au-
thorities taken to be exclusive, unless a contra-
ry m-eaumption arises from the facta, as it did
in Eoleroft v. Heel (1 Bos. A Pull. 400). But
Lord Ooko (in 2 Inat. 406) lays down the law
as equally applicable to all eases of prescription
and of grant. "If," says be "one hath a market
either by prescription or by letters patent of tbe
king, and another obtains a market to the nui-
aanca of the former market, he shall not tarry
till he had avoided the lettera patent of the
latter market, by course of law; but be may
have an assise of nuisance." The aama rule
must, for the same reason, apply to fairs and
ferries. The caae of Prince v. Lewis i6 Bam.
A Ores. 363) waa the enae of the grant of a
market, and not of a market by prescription,
yet no one suggested any disLinctioa on thia oo-
count. Holcroft v. Heel (1 Bos. A Pull. 400)
was the caae of a grant of a market by lettera
In dgden v. Gibbons (4 Johna. (A. R ISO),
Mr. Chancellor Kent recognisea, in tha moat
ample manner, the general prindpUs of the
common law. Speaking of the grant in that
case of an exclusive right to navigate with
steamboata from New York to Elizabethtown
Point, "etc., he declared that tbe true [*III
iotent waa to include not merely that point,
but the whole ahore or navigable part of Eliza-
bethtown. "Any narrower construction" said
be, "in favor of the grantor would render the
deed a fraud upon tM grantee. It would ba
like granting an excluaive right of ferriage be-
tween two given pointa, and then aetting up a
rival ferry within a few rods of tboae very
ptrinta, and witUn the sanw course of the Una
•M
M7
Surauu Ooun or xas Umam Stau
itn
of trsTel. The Mmaon law oontiined priod-
plca applicable to thU very e«M, dictated bj m
lounder Jndgmeiit, and a more enlightened
morality. If one had a ferry by prEscription,
and another erected a ferry »o near to it a« to
draw away it4 cuatom, it woi a nuiBajioe, for
which the injured party had his remedy by ac-
tion, etc The Mune rule appliea, in ila spirit
and substance, to all exclusive grants and mo-
nopolies. The grant must be so construed ao
aa to give it due effect by excluding nil contig-
uouj and injurious competition." Language
more apposite to the present case could not well
be imagined. Here, tnere is an exclusive grant
of a bridge from Charlestown to Boston on the
old ferrywaysj must it not also be so construed
■■ to exclude all contiguous and injurious com-
fietitionl Such an opinion, from such an en-
ightened judge, is not to be overthrown by
general luggeationa against tualcing any impli-
cation* in legislative grant*.
The cue of The Newburgh TurapiLie Com-
pany V. Miller (6 Johns. Cb. R. 101), decided by
tbe same learned judge, is stilt more directly in
point, and, aa far as hia authority can go, con-
clusively establishes the doctrine, not only that
the franchise of a ferry is not confined to the
fcrrywaya, but that the franchise of a bridge lii
not conQned to the termini and local liniin uf
the bridge. In that case the plaiutilTa hull
erected a toll bridge over the River Wallkill ii.
connection with a turnpilie, under an act of itit;
Legialaturej and the defendants afLcrwaids
erected another road and bridge near to tln'
former, and tliereby diverted the toll from thi;
plaintiflB' bridge. The suit waa a bill in elian-
aery, for a perpetual injunction of (hi* nuisance
of the plaintiff*' bridge, and it was according-
ly, at tne hearing, granted by tbe court. Mr.
Chancellor Kent, on tliat occasion, said: "Con-
aidering tbe proximity of the new bridge, and
the facility that every traveler has by means of
that bridge, and the road connected with it, to
•bun the plaintiffs' gate which he would other-
wise be obliged to pass, I cannot doubt, for a
moment, that the new bridge is a direct and
immediata disturbance of the plaintiffs' enjoy-
ment ot their privileges," etc. "The new
road, by it* termini, created a competition
CSS*] 'most injurious to the statute franchisei
and beoomea, what is daemed in law, in respect
to Budi franchise, a nuisance." And, after ad-
verting to hi* own language, already quoted in
Ogden V. Gibbons (4 John*. Ch. R. ISO, 160), he
added; "The same doctrine applies to any ex-
clusive privilege created by statute. Ail tudi
privileces come with the equity and reaaon of
the prmciple. No rival road, bridge, or ferry,
or other establishment of a similar kind, and
for like purpose*, can be tolerated so near to
th* other 0* materially to affect or take away
ita cuatom. It operats* a* a fraud upon tbe
grant, and goes to defeat it. Tha Gonside.~a<
tlon, by which individuals are invited to expend
money upon great, and expensive, and hazard-
ous public worlcs, as roads and bridges; and to
become bound to keep them in constant and
good repair, is the grant of an exclusive toll.
This right, thu* purchased for a valuable con-
iideration, cannot be taken away by direct oi
indirect means devised for the purpose, both of
wliioh are equally unlawful." Now, when the
komtd OhuctUor her* ■pamkn of ob ueluaive
privilege or franchise, ha doe* not allada to aa*
term* in tbe statute grant exprea«ly giving bm
a privilege beyond the local timits; tor the stat-
ute contained no word* to such an effect. Hm
grant, indeed, was by nece«MU-y implication
exclusive, as to the local limits, for the L^it-
lature could not grant any other bridge In tke
same place with the same tcrminL It waa to
*uch a grant of a tronchia*, ezelnsive Im tU*
•ente, ud in no other, that hia langnaga ap-
pliea. And he afliriDS the doctrine in Um meat
positive terms, that auch a grant carries with U
a necessary right to exclude all Injoriona com-
petition, as an indispensable Lneident. Aa4
bis judgment turned altogether upon thia doe-
trine.
It is true that in this case the defendants did
not erect the new bridge under any legialativc
act. But that ia not material in regard to the
point now under consideration. The point «c
Bi« DOW considering is, whether the grant of a
franchise to et«at a bridge or a ferry, ia coa-
fined to the local limit* or termini, to the polnta
and planks of the bridge, or to the farrywayi
of the ferry. The learned Chancellor rcjeeta
such a doctrine, with tbe most pointed severity
of phrase. "It operate*," gay* be, "as a fraud
upon the grant, and goes to defeat it." The
grant aeceesaiily includes "a right to an excla-
sive toll." "No rival road, bridge, or fatty
can be tolerated so near to the former aa to af-
fect or take away its custom," Now, if audi
k>e the true construction of the grant of sud a
frnnchise, it is just a* true a construction in
relation to the government as in relatioa
*to private peraons. It would be ab- ['flsa
surd to say that the same grant means one thing
as to the public and an entirely opposite tbiag
in relation to individuala. II the right to mn ex-
clusive franchise or toll exists, it exists from tbe
nature and objects of the grant, and appliaa
equally in all directions. It would be repug-
nant to all notions of common sense, a* well •■
of justice, to say that the Legislature had a ri^t
to commit a fraud upon ita own grant. Tbe
whole reaaooing of the learned Quincellor re-
pudiates such a notion.
But in what manner is the doctrine to ba
maintained that the franchise of a ferry i* eoa-
Qned to the ferryway*, and the fraueliise of ■
bridge to the planksT It 1* said that in Savillc's
Reports, U, it is laid down "that a feiry ia in
respect to the landing-place, and not of tbe
water; which water may belong to one, and tbe
ferry to another." There can be no doubt of
this doctrine. A ferry must have local limits-
It must hive termini, or landing-places, and it
may include only a right of pasH.ige over tbe
water. And is not thia equally true, whetbet
it be a ferry by prescription, or by grant T II
«o, can there be any difference as to the value
of U>e exclusive right in cose* of grant, or of
preacription I Ooe* not each rest on its land-
ing-placesl But it U added, in aaviUe: "And
in every ferry, the land on both aidea of the
water ought to 1>a (belong) to the owner of tb*
ferry; for otiierwise he cannot land upon the
other part." Now, if by tliis is meant that
the owner of the ferry must be the owuw
of the land, it i* not law; for ail that la re-
quired is that he should hisve • right or ease-
ment in the landing -places. So it was adjudged
in fater v. Kendall (« Bam. A <^vm. 703);
Iks CoAMiMm Kiw BuMB r. Thk Wawu» Buinb n au
Uid tk» dtotnm of brtlla wu tben ovnrnled.
tf Um Mme principle U to b« applied (ul tUnk
it mutt be) to a bridge, tlten, aa there must be
a aulwiBtlDg rigbt In tbe pnprietora of CliATte*
Klrer Bridge to b*T« aueh iKuding-plkCPi on
tha old Itnyirmji, tbere moat be tn uiienment
or gnmt implM to th(M« lerrTwaji bj Hkirknl
College to the proprietor* for thftt pnrpoM.
But of fhU I abati apeak hereafter.
One of the leuned judges in the State oourt
(who wai againit the plafntlffe) admitted that
if uij penon should be forcible prevented from
pu)ri^ over tbe plaintilTs' bndga, it would be
■n injar;, for which an action on tbe ease
would lie. I entirely aseent to this doctrine,
whicb appear* to me to be fonndbd in the moat
•ound Masoning. It 1* supported by the case
of The Bailiffs of Tewkabury v. Dlaton, 6 East
R. 498, and by the authoritlea olted by Lord
• SO*] Ellenborough 'on that o««aaion, and
especially b^ the doctrine of Mr. Justice Powell,
in Aflbby V. White, 2 Lord Raym. 648) and 8.
a e Mod. 49. But how can this be if the
franchise of tha bridge is cooflned to the mere
local limits or timbers of the bridge? If the
right to take toll doea not oommence or attach
in th* plaintiffs, eicept when the paaaengera
arrive on the bridge, how can an action lie for
tha proprietora for obstructiog pasaangera from
eomin^ to tbe bridge! The remedy of the
plaintiffs can onl^ be co'eitenaive with their
rights and franchise. And if an action lies for
an obstraetion of paaaengera, becanae it goes to
impkir the right of toll, and to prevent its be-
ing earned, why doe* not tbe diversion of pas-
sengers from the bridge by other means, equally
giv* a cause of action, since it goes, equally,
nay more, to impair the right of the plaintilTa
to toll I If the Legialatnre could not impair or
destroy its own grant by blocking up all ave-
nnea to the bridge, how can it possess the right
to draw away all the tolls by a free bridge,
which muat necessarily withdraw all passen-
gers t For myself, I cannot peroeive any ground
upon whidi a rlrht of action is maintainable
for any obstruetTon of paaaengera, which does
not equally apply to the diveraion of paaaon-
ger*. In each caae, tha injury of th« frauchiae
U tke same, although the meani used are, or
may ba different.
The truth U, that the reason why the grant of
a franchise, as, for example, of a ferry or of a
bridn, though neeesaarily local in It* Umits, Is
y«t deemed to extend beyond those local limits
by operation and intendment of law; is founded
upon two great ftindainental maxima of law
applicable to all grants. One is the doctrine
already alluded to, and laid down in liford's
eaae (m 11 Co. R. 46, 6£, a). I^z est cnicun-
aliqais, quod concedit, coneedere videtur et
line qao ra* Ipsa eaae non potuit; or, as It
■ Bjcpraaed with pregnant brevity by Mr. Jna-
tiae Twiadan, in Famfret v. Ricroft, 1 Bausd.
R. 321, S£3: "When the use is granted, every-
thing is granted by which ths grantee may
have and enjoy the use." See, also. Lord Darcy
V. Askwltb, Hob. R. !34i 1 Saund. R. 323; Note
[fl] by William*; Co. Ut. 64, a- Another is,
that wherever a grant is made for a valuable
eonaideration, which involve* pnblio dutiea
and efaargea, the graat shall ba eonatruad ao
*• to make the indemnity ea-*xtensive with the
burdao. Qui aiBtlt onna, mtira dabat at com-
r.
modum. In ths ease of a fetty, then I* a
publla ehargs and duty. Ths mmar mnat
keep tbe ferry In nod repair, upon tfaa peril
of an IndMrnent. He must keep suflMent *••
commodatlona for all travel era, ^at all ['CSl
reaaonahls tines. He mnat eontant kinaelf
aaonabla toll. Such la tha In
retnm, the law will exdada
mpetltlon, and daam aveir new ferry
a nulaanoe which aubatraota from bIh tka oT'
dinar* eustom and toll. Bea Cam. Dig. Pliaary,
B; Id. Ferry. Bo strong {a tha duty of the far-
R owner to tha public, that It was bald, la
ine V. Patrick, I Mod. EM, 104, that tha fer-
ry owner oonld not excuse himself from not
keeping proper boats, even by showing that h*
had erected a bridge more convenient for mw-
aen^ra. It would ba a fraud upon anen ■
grant of a ferry to divert the travel, and y«t to
Impose the burden. Ths right to take toll
would, or might be nseleaa, nnleaa It ahould b*
exclusivewithinall the bonnd* of iBJurtoo* rival-
ship from anothv ferry. The franehiae 1*
therefore construed to anand beyond tha loeai
limits, and to be exclosfva wtthln a raaacmaUa
distance, for the plain reason that It ii indis-
penaable to the fair enjoyment of tha franehiaa
and ri^t of toU. The same principle appliea,
without a shadow of differenee that I an able
to perceive, to the case of a bridge; for the da-
ties are publid juris, and pontage and pasaaga
are but different namea for asMualva Ml rar
transportation.
In the argument at the preaent term It hao
been further contended that all eventa, in tha
State of Massachusetta, the ancient dortrioe of
the oommon law In relation to ferriea is not la
foree, and never haa been raoognlxod; that all
ferries in Uaasaehnsetta are held at the mars
will of the Legislature, and may ba eataWiahed
by them and annlhilatad by them at pleaanre;
ud of aourae that tbe mnteea hold thau
durante bene placlto of tba Legislatura. And in
eonflrmatlon of this view of tha subject, oer-
tain proceedinn of the colonial L^alatur*
have been relied on, and eapeetallji those stated
In the raeord, between tbe year* 1S2V to lUO,
to the aolonial Act of 1S4I against monopoliaa
(which ta, in subatance, like the statute of mo-
nopolies of the 21 of James L oh. S), and to tha
general aolonial and provindal and Stat* atat-
ute* regulating ferries, paaaed in 1541, 1644,
1040, 1047, lOK, ISM, 1710. 17l», 1781, and
1787; some of which oontain special provialona
raapectinf Charieatown and Boaton ferry.
As to tne prooeediuga of the eoh>nial govern-
meat, ao referred to. In my judgment they eatab-
liabed no such aondnaion. But aome of them,
at least, are directly opposed to It. Thus, for
example. In 1S38 a ferry was granted to Oarret
Bpcmoer at Lynn for two years. In 1041 it waa
ordered that they that pnt two boats hetweea
'Cape Ann and Annisquam, shall have [dSS
liberty to take anffldent toll, at the aoort aha)!
think lit, for one -and -twenty ycara. Could tha
oolonial government have repealed theae grants
within the term* specified at their pkaasml
eheater and Bralntree, to aay paraoa or persona
for the t«rm of aaven years, itc-i or alae to Uka
It to himielf and Ma hdn, aa Us inheritanaa
fwarar. p«¥tM tt b« kapt i» anek a plMi
■ OOUmT OF THB UHtnD SlATBfl.
lOT
ft&d at nch ft priM ma m&T be matt convcntent
for Um ooimtr?, ftnd p1«a«»Dt to the General
Court. Now if Olorer, according to tbia act,
had taktu this ferrv to bim and hi> heira aa an
inheritance, could tbe colonial LcgialatuK have
rtvoked it at ita pleaiure! Or rather, can it be
preanmad that the colonial Leslalature intended
•neh a ferry, confeasedlj am Tnheritanoa, to be
ait eatate held aaiy at will 1 It would be repng-
namt to all notions of legal internretatioa.
In 1837 the General Court ordered the ferry
between Beaton and CSiarlestown to be let for
throe years. It waa aftarwarda, in 1040, grant-
ed to Harvard College. From that time down
to 178S, it was always held and claimed by the
eollege na ita inheritance. But the college never
nipjMaed that it waa not subject to the regula-
tion of the Legislature, ao f ar aa the public In-
terests were concerned. The acta of 1650, 1654,
16M, 16M, ITIO and 1761, esUbllsh thii. But
they ahow no more. That many at the ferriea
In Maasachuaetta were held, and perhaps were
ah/ays held under mere temporary licenses of
the Legialature, or Of certain magietratea to
wliom they were Intruated, is not denied. Hut it
ia aa dear that there ¥rere other ferries held un-
dur more permanent tenures. The colonial Act
of 1044, authorizing magiatrate* to pass ferries
toll free, except such ferriea sa are appropriated
to any, or rented out, and are out of the coun-
try'a handa, and then it ia "ordered that their
paaaiges be paid by the country." The Act
of 1BB4 excepts from its operation "such fer-
ries as are a&eady stated and settled either by
the court or town to whom they appertain."
The colonial Act of lOTO, as an inducement to
the town of Cambridge or other persons to re-
pair the bridge at Cambridge, or to erect a new
one, declared "that this order (granting cer-
tain tolls) should oontinue in force ao long a
time as the said bridge ia maintained aerriceable
aind sale for pasaage." So that it ia plain that
the colonial Legislature did contemplate both
ferries and bridges to be held by permanent
tenures, and not to be revocable at pleoaure.
411*] *But to all the general laws respect-
ing ferriea, one answer may be given — that
their provisions are Kenerally conned to the
dne regulation o/ public ferriea and matters
publid jnria; and ao far aa the public have
rights which ought to be enforced and pro-
tected, and which the Legislature had a proper
right to enforce and protect by suitable law«.
And in regard to matters not strictly of this
also to those ferriaa {among which Charleatown
ferry Menu to have been] over which a modi-
fied l^pslative oontrol had been, at their origin-
al wtablishment, reserved. Beyond these re-
■alta, I am not prepared to admit that these
■tatntes either had, or ever were supposed to
IwT* any legitimate operation. And before I
ihonld. advlt and a conclualon, 1 ahould n-
qain tha erMonoe of aome solemn judgment of
a eonrjt of juatioe In Maasachusetta to the very
Bnt the argument presses the doctrine to an
•xteat whi^ it k Inpoasibla «aa be wmct.
if any prineiplN reapeetiBK *est«d il|^
exist, or have any recognition in a free govan-
ment. What la ItT That all ferries in Hassa-
chusetta are revocable and eitinguiehable at
pleasure. Suppose, then, the L^ialatnra of
Massachuietti, for a valuable consideration,
should grant a ferry from A to B to a grantee
and hta heirs, or to a grantee for forty yean,
or for life; will it be contended that the Legii-
latun can take away, revoke, or annihibte
that grant within the period! That it may
make such a grant cannot well be denied, fcr
there is no prohibition touching it In the Cm-
atitution of Masaachuaetts. That tt can take
away or resume anch a grant has never yet
been held by any judicial tribunal in that State.
The contrary ia as well established as to all
sorts of grants, unl««B an express power be re-
served for the purpose, aa any principal in ita
jurisprudence. In the very caae now before
this court, every judge of the Supreme Court
of the State admitted that the I^gialatm^
could not resume or revoke its charter la
Charles River Bridge. Why not, if it could re-
voke its Bolemn grant of a ferry to a private
Craon, or to a corporation, during the atipu-
:ed period of the grant I The Legislatnn
might just aa well resume ita grant of the
public land, or the grant of a turnpike, or of a
railroad, or of any other franchise, within tht
period stipulated by its charter.
The doctrine then is untenable. The momant
that you ascertain 'what the terms and ['•S4
stipulations of a grant of a ferry or anj other
franchise are, that moment they are obligatoiy.
They cannot be gainsaid or resumed. So this
court has said in the esse of Fletcher v. Peek,
6 Oanch, 871, and so are the unequivoeaUe
prindpies of justice, which cannot be over-
turned without shaking every free gavemmaat
to ite very foundationa. If, then, the ferry be-
tween Charleatown and Boston waa vested ia
Grpetuity in the corporation of Harvard Col-
je, it could not be taken away without its
consent by the Legislature. It was. a ferry, ac
far withdrawn from the power of any legisla-
tion trenching on its righta and franchisea. It
ia assuming the very point in controversy to
say that the ferry was held at the mere [uess-
ure of the Legialature. An exclusive claim, and
posaeasion, and user, and taking of the profit)
thereof for one hundred and fifty ^ear* b^ the
corporation of Harvard College, without inter-
ruption, waa as decisive evidence of ita exclu-
sive rl(^t to the franchise in perpetuity aa the
title deed of any man to his own estate. Tka
Legislature of Massachusetts has never, aa tu
as 1 know, breathed a doubt on the point. AB
the judges of the State court admit the exela-
right of Harvard College to the ferry, in
the moat unequivocal terms. The argument,
then, that the English doctrine aa to ferries ha*
not been adopted, and ia not in force in Mas-
sachusetts, is not supported. For myself, 1
can only say that I have always understood
that the English doctrine on this subject eM-
atitutea a part of the common law of Maasaehn-
setts. But what is moat material to be stated,
not one of the learned judges in the State eonrt
doubted or denied the doctrine, though tt was
brought directlv before them; and they ^ve
(seriatim) opinions oontaining great diTcraitir*
PBMi* 11.
I83T
Tiu Cbamum Hivcb BxiDGi *. Thi Wam»i Bums mt au
«f Jndfrment on other potnti.' It ia ado foil;
eBtabliAhcd b; the eaM of Chadwiclc v. The Pro-
prietori of Ha»erhill Bridge, ftlre.id; cited.
But It ii urged that aome loctil lirnttB tnUBt
be assigned to such ^ntnta, and the court must
assign tliem, for otherwise they would involve
the Abiurdit; of being co-extensive with tlie
range of the river, for everj other bridge or
ferry must Involve some diminattoQ of toll;
and how much (it is asked) I« necessary to eon'
■titute an iiifringrm^nt of the right! I have
already given an answer, ia part, to this sug-
gritioB. The rule of law is clear. The ap-
Elication of it must depend upon the particu-
ir circumstances of each case. Wherever
•S5*] *Bny other bridoe or terry is so near
that it Injures the franchise, or diminishes the
toll in a positive and essential degree, there It
ia a nuisance, and is actionable. It invade* the
franchise, and ought to be abated. But wheth-
er there be such an injury or not, Is a matter
not of law but of fact. Distance is no other-
wfae important than as it bears on the quection
of fact. All that is reijuired is that there
■hould be a aensible, positive injury. In the
present ease there is do room to doubt npoa
this point, for the bridges are contiguous; and
Warren Bridge, after It was opened, took away
ttiree fourths of the profits of the travel from
Charles River Bridge; and when It became
free (as it now is) it neceuarily took away all
tbe tolls, or all except an unimportant and
trivial amount of tolls.
What 1 have said, however, ia to be under-
stood with this qualification— that the fran-
chise of tbe bridge has no assigned local llntila,
but It is a simple grant of the right to erect a
bridge across a river from one point to another,
without being limited between any particular
villea or towns, or by any other local limits.
In the case now before the court, I have already
stated that my judsment is that the franchise
ia merely to erect a bridge between Charlestown
and Boaton; and therefore it does not, necea-
aarily, exclude the Legislature from making
any other grant for the erecting of a bridge be-
tween Boston and any other town. The axdu-
alve right being between those towns, it only
precludes another legislative grant between
thoss towns which is injurious to Charles River
Bridge- The case of Tripp v. Frank, 4 T. R.
666, is a clear authority for this doctrine. It
woa there decided that the grant of an exclusive
ferry between A and B did not exclude a ferry
between A and C. But the argument of the
plaintiffs' counsel waa tacitly admitted by the
court, that "ferries in general must hav« some
considerable extent, upon which tbelr right
may operate, otherwise the exclusive privilege
would be of no avail. That extent must be
governed by local circumstances." And tbera
their peril to supply tbem to the public use,
and are therefore fairly entitled to the public
advantage arising from them.
But it la said, if this Is the law, what, then,
is to become of turnpikes and canals! Is the
Legislature precluded from authoriitng new
turnpikes or new eanala, simply because they
I Frorrtetvi
Proprietors of WarrfB BMdfa, T Pick. B. SM.
Charles RJrsr Bridg* r-
diminish their receipt of toIlsT Tha i
plain. Every turnpike has its local li
Tha answer u
limits and
focal termini^ its' points of besinnlng and
of end. No one ever Imagined that the
'Legislature might grant a new turn- [*•!■
pike, with exactly the same location airi ter-
mini. That would be to rescind Its flrat grant.
The grant of a turnpike between A and B,
does not prechide the Legislature from the
grant of a turnpike between A and C, even
though it should incidentally intercept some of
the travel: for it is not neceuarily a nuisane*
to the former grant. The termini being differ-
ent, the grants are or may be substantiany
different. But if tbe Legislature should grant
a second turnpike, aubatantially taking away
the whole travel from the flnt turnpike be-
tween tbe same local points, then, 1 aay, It la a
violation of the rights of tbe flrst turnpike.
And the opinion of Ur. Chancellor Kent, and
all of the old authorities on the subject of
ferries, support me In the doctrine.
Some reliance has been plaoed upon the
cases of Prince *. Lewis, 0 Bam- A Cres.
363, and Hosley t. Walker, T Bam. & Cres.
40, as impugning the reasoning. But, ft ap-
peare to me, that they rather fortify than
shake it. In the former ease, the king granted
a market to A and his heirs, in a place within
certain specified limits, and tbe grantee, na^
part of the limits for other purposes, and snaee
enough was not ordinarily left for the market-
ing. It was held that the owner of the market
could not maintain an action against a person
for selling marketable goods in the neighbor-
hood, without showing that at tbe time of the
Bale then waa room enou^ in the market for
the seller. This clearly admits the exclusive
right of tbe owner, if there Is room enough in
the market. The other case afBrma the same
principle, as indeed, it waa before affirmed in
Mosley v. Chadwick, T Bam. ft Cres. 47, note.
But then again, it is said that all this resta
upon implication, and not upon the words of
the charter. I admit that it does, but I again
aay that the implication is natural and neces-
sary. It is indUpensable to the proper effect
of the grant. The franchise cannot subsist
without It, at least for any valuable or praoti-
objects of the grant? If it be indispensa-
ble to the full enjoyment of the right to take
toll, that it should be exclusive within certain
limits, is It not just and reasonable that it
ahoutd be so construed! If the legislative pow-
er to erect a new bridge would annihilate ft
franchise already granted, ia it not, unless ex-
pressly reserved, necessarily excluded fay in-
tendment of law! Can any reservationa be
raised my mere implication to defeat the oper-
ation of a enut, especially when such a reser-
vation would be oo-extensive with the whole
'right granted, and amount to the reser- [*t<1
ration of a right to recall the whole grant!
Besides, in this very case, it is a'-' — * "
given to the proprietors to erect the bridge; and
yet it is agreed that the power paasM by neoes-
aary implication from the grant, for otherwiM
H would be utterly void. Tbe afgument,
•n Surana Oaun or i
tbmifom, mmiiderB the point u to
priBtjr of m&king implicmtiaiiB, and reducei the
quMtioQ to the mere aonsidtratioii of what it a
neceiury implication. Now, I would willing-
ly put the whols c««e upon thii point, whethsr
ft u not ma indiipensabls to tb« fair and full
operation of tlie grant that the plaintiffs ahould
tM aecure in the full enjoyment of their right
to tolia, without disturbaoce or dlrertion, aa
that they ahould hare the poorer to erect the
bridge. If the tolls may be all iwept away by
a oontiguoua free bridge, erected the oext day,
can it be said, in any kdm, that the object of
tlie franehise is obtained! What doei ttw
•annd logic of the common law teach us on
this pointi If a gntnt, eren of the crown,
admits of two canstructiona, one of which will
defeat, and the other will promote and secure
the fair operation of the grant, the latter ia to
be followed.
The truth is, that the whole argument of the
defendants turns upon an implied reservation
of power in the Legislature to defeat and de-
stroy its own grant. The grant, construed
upon its own terms, upon the plain principles
of oonstruction of the common law, by which
alone it ought to be judged, is an ezolusive
grant. It is the grant of a franchise, publici
juris, with a right of tolls, and in all such
eases the common law asserts the grant to be
axclusire, so as to prevent injurious eompe*
tltion. The argument seelu to exclude the
eommon law from touching the grant, by im-
plying an exception in favor of the legislative
authority to make any new grant. And let us
change the poeition of the question as often as
we may, it comes to this, as a necessary result
— that the Legislature has reserved the power
to destroy its own grant, and annihilate the
right of pontage of the Charles Sivar Bridge.
If it stops short of this exercise of its power, it
is its own choice, and not its duty. Now, 1
maintain that such a reservation is equivalent
to a power to resume the grant, and yet it haa
■ever been for a moment contended that the
Legislature was competent to resume it.
To the answer already given to the objection
that, unless such a reeervation of power exists,
there will be a stop put to the prograsa of all
•S8*] 'public improvements, I wish, in thia
oannection, to add that there never can any
such consequence follow upon the opposite
doctrine. If the public exigencies and mtei-
ests require that the franchise of Charles River
Bridge should be taken away or Impaired, it
may be lawfully done upon making due com-
pensation to the proprietors. ''\\'henever,"
aays the constitution of Massaohusetts, "the
publle exigencies require that the property of
any Individual should b« appropriated to pub-
lle usea, he shall receive a reasonable oompen-
•iditMi therefor;" and this frs^chise is proper-
ty— ia fixed, determinate property. We have
Men told, inded, that where the damage la
Berely consequential (as, by the erection of a
Daw bridge, it is said tliat it would be), the
•onatitution does not entitle the party to com-
pensation; and Thurston v. Hancocli, 12 Mau
R. 220, and Callender v. Uarsh, 1 Pick, f-
11 a, an dted in support of the doctrine.
With all poesible respect tor the opinions ot
others, I confess myself to be among thoae who
paver tould oompralMwl Um law oi aitbw of
•••
Ittf
those euea, and I hunUy eontiatw to de«U
if, upon principle or authority, they an easily
maintainable, and I think my doubts fortified
by the recent English deeisions. Bat, aasuming
these eases to be unquestionable, they do not
*pp1y to a case like the present, if the erection
of such a new bridge U a violation of tlw
plaintiffs' franchise. That frandiise, so far as
■t readkes, is private property, and ao far as it
is injured. It is the taking away of prifate
property. Suppose a man ie the owner of^amil^
and the Legislature authoriie* a dlvereion of
the water-course which supplies It, whereby the
mill is injured or ruined; are we to be told
that this ia a conseauential injury, and not
within the scope of the Constitution I If not
within the scope of the Constitution, it is, sc-
oording to the fundamental principles of a
free govemment, a violation of private rights,
-which cannot be taken away without campen-
aation. The cue of Gardner v. The Village
of Newburgh, 2 Johns. Ch. R. 133, would be
a luflicient authority to sustain this reasoning,
if it did not stand upon the eternal principles
of justice, recognized by every govemment
which is not a pure despotism.
Not a shadow of authority has been intro-
duced to establish the position of the delend-
Mits that the franchise of a toll bridge ii
'■''■"' ' of the bridge, and ;
onus probandi is on them;
I of the Goinmon law are
contend that the same principles apply to fer-
ries, which are limited to the ferryways, unless
'some prescription has given them a [*«3I
more exteneive range. But here, unless I am
entirely mistaken, they have failed to establish
their position. As 1 understand the authorities,
they are, unequivocally, the other wa^. An
we then to desert the wholesome principles of
the common law, the bulwark of our publie
liberties, and the protecting shield of our pri-
vate property, and assume a doctrine which
substantially annihilates the security of all
franchises affected with public easemeuts?
But it is said that if the doctrine contended
for be not true, then every grant to a corpora-
tion, becomes, 1^ facto, a monopoly or exdu-
sive privilege. The grant of a bank, or of aa
insurance company, or of a manufacturing
company, becomes a monopoly, and excludes
all injurious competition. With the greatest
deference and respect for those who press such
an argument, I cannot but express my surprise
that it should be urged. As long ago as the
case in the Year Book (22 Hen. VI., U), the
difference was pointed out in argument \)t-
tween such grants as involve public duties and
public matter* for the common heneBt of the
people, and such as are for mere private bene-
fit, involving no such consideration. If a bank,
or insurance company, or manufacturing com-
pany, i* established in any town by an act
of incorporation, no one ever imagined that
the corporation waa bound to do busioeia,
to employ its capital, to manufacture goods, to
make insurance. The privilege is a mere pri-
vate corporate privilege for the benefit of the
stockholaera, to be used or not at their owa
pleusurs — to operate when they plesae, and te
stop when they pleue. Did any man ever im-
agine that he bad a rfriit to hsTe a note die
PMWW !!•
itn
TuK Cataum Biva Bumk *. Thi Wabur Busok n al
I bjr K bank, or ■ polic; underwritten
hv an tiiBuruiw companjl Such gnnt* kre
klwaya deemed privati jurit. No Todietineiit
hea lor ft ttanuwr. But in Cftwt of feriiei and
bridges, and other franchises of a like
(aa baa been shown), thej are affected with a
jus publicum. Such grant* arc ma
public accommodation, and pootagi
■an are authorited to be levied upon travelers
(whldi can onlj be b; public auttiorit;) ; and,
Ib letum, the proprietors are bound to keep op
all auitable accommodations for travel ere, un'
der tbe penalty of indictment for their neglect.
The tolls are deemed an equivalent for the
buidea, and are deemed ezduaive, because
they might not otfaerwiae afford any juit in-
demnity. Id the very case at bar, the propri-
etors of Charles River Bridge (as we have
Men) are compellable to keep their draws snd
• 40*] 'bridge in good repair, during the
Eriod of seventy yeare; to juy an annuity to
irvard CollegB; to give all reasonable ae-
comiaodatioBS to the public travel; and, if
they do not, they may b* grievouslv amerced.
The burdens being eic'uslvely on them, '
not the toils granted by way of ~~
■oaJog^ in such a case to the case of a bank,
or an insurance company, or a manufacturing
company I The caaa of Jackson v. Lamphire,
t Patera's R. 280, contains no doctrine which,
ia tbe slighteat degree, interfere* with that
which I have been endeavoring to establish in
the present caoe. In that decision I betieve
that I concurred, and I see no reason now to
call in question the soundness of that decision.
That ease does not pretend to inculcate the
doctrine that no implicationa can 1« made, a*
to matters of contract, beyond the express
terms of a grant. If it did. It would be in di-
rect conQiat with other most profoundly con-
sidered adjudications of this court. It asserted
only that the grant In that case carried no Im-
Clication that the grantee should enjoy the
Lnd therein granted, free from any legiuative
Xatlons to be made in violation of the oon-
tion of the State. Such an implication, so
broad and so unmeasured, which might extend
far Iwyond any acts whidi could be held in
the nature of the grant. What said the court
on that occasion T "The only contract made
by the State is a grant to J. C, his heirs and
assigns, of the land in question. The patent
contains ao covenant to do or not to do any
farther act in relation to the land; and we do
■ot, in this case, feel at liberty to create one
by implication. The State has not, by thla
act, impaired the force of tbe grant. It does
Bot profess or attempt to take the land from
tbe Asaigna of C and give It to one not claim-
lag «ad*r hini. Neither doea the award pro-
diiM that effect. The grant remains la full
But ati]
the 1
I had been the tact.
J, and granted It to another, or asserted its
a right otbsrwlse to impair the grant; does
ft not follow from thli wj reasoning of the
eenrt that it waaM ban Wo held to have
• t.. M.
court would have overturned its own most aol-
emn judgment* In other cases. Now, there 1*
not, and cannot be, any real distinction be-
tween a grant of land 'and a grant of [*a41
francbiae*. The implication in each case must
be tbe same, vis., that the thing granted shall
not be resumed, or impaired by the grantor.
It haa been further argued that even if the
charter of the Charles £ver Bridge doe* im-
ply such a contract on the part of the L^ala-
ture as is contended for, it is void for want of
authority in the Legislature to make Itj be-
cause it is a surrender of the right of eminent
domain, intrusted to the Legislature and it*
successors for the benefit of the public, which
it is not at liberty to alienate. If the argu-
ment means no more than that the Legislature,
being intrusted with the power to grant fraa-
chiaea, cannot, by contract, agree to surrender
or part with this power, generally, it would be
unnece**ary to consider the argument; for no
one supposes that the Legislature can right-
fully surrender its legislative power. If the
argument means no more than that the Legis-
lature, having the right by the Constitution
to take private property (among which prop-
arty are franchises) for public purposes, cannot
devest Itself of such a right by contract, there
would be as little reason to contest it. Neith-
er of these cases is like that before the court.
But the argument (if I do not misunderstand
it) goes farther, and denies the right of the
Legislature to make a contract granting the
exclusive right to build a bridge between
Charlestown and Boston, and thereby taking
from itself tbe right to grant another bridg*
between Cbartestown and Boston, at its pleas-
ure; although the contract does not exclude the
Legislature from taking it for public use upon
making actual compensation, because It trenchea
upon the aovereign right of eminent domain-
It Is lumeoessary to oonsider whether the
phrasa "eminent domain," in the sense in
which It is used in the objection, is quite ac-
onrate. The right of eminent domain is usual-
ly understood to be tbe ultimate right of the
sovereign power to appropriate, not only the
public pro^rty, but the private property ot all
citizens within the territorial sovereignty, to
public purposes. Vattel, bk. I, oh. 80, aao.
244, sasm* so to have understood the terms,
for he says that the right which belongs to the
society or the sovereign of disposing, in ease of
neoeasity, and for the public safety, of all the
wealth (the property) contained in the State,
t* called the "eminent domain." And he adds
that It is placed among the prerogatives of
majesty; which, in another section, (bk. 1. eh.
4, sec 45), he defines to be, "all the preroga-
tivea without which the sovereign command or
authority 'could not be exerted In the r*S4i
manner most conducive to the public welfare.'
Tbe right of "eminent domain,'' tbcn, doe*
not comprehend all, but only i* among the
prerogatives of majesty.
But tbe objection uses the words in a broader
sense, as including what may be deemed the
essential and ordinary attributes of aovereign-
6tt
SuraEHB OaOKt or tb* Unm Stah
diliei for the public good. Without doubt,
these are proper attribute! of aavereignt;, and
prerogatives resulting from it* general natura
and functions. And «a Vattel conBidera them
in the paBsage cited at the l>ar (bk. 1, ch. 9,
sec. 100, lot). But they are attributes and
prerogative! of eovereigntjonly.andeanbeex-
erdied only bf itself, unless specially delegat-
ed.
But, without stopping to examine ioto the
true meaning of phraaei, it may be proper to
•ay that hotrever extensive the prerogatives
and attributes of sovereignty may thcorsticai-
ly be, in free governments tliey are universally
held to be reetrained within some limita. Al-
though the sovereizs power in free govern-
ments may appropriate all the property, pub-
lie as well BB private, for puolio purposes,
making compensation therefor, yet It has never
been understood, at least never in our republic,
that the BOTereign power can talce the private
property of A and give tt to B, by the right of
eminent domain;" or that It can take It at all,
except for public purposes ; or that it can take
it for public purposes, without the duty and
responsibility of malting compensation for the
■aeriSoe of the private property of one for the
good of the whole. These limitationB have
been held to be fundamental axioms in free
government* like ours, and have accordingly
received the sanction of some of our most emi-
nent judges and jurists. Vattel himeetf lays
them down, in discuBSJug the question of the
right of eminent domain, as among the funda-
mental principles of government, binding even
upon Bovereignty itself. "If," say* he, "tlie na-
tion itself dispoBCB of the public property in
virtue of this eminent domain, the alienation is
valid a> having been made with a sufQcient
power. When )t dispose* =- '"-- — '- -
alienation will be valid for the
But justice demand* that this community or
this individual be recompensed out of the pub-
lic money, and if the treasury is not able to
pay, all the dtliena are obliged to contribute
•4S*] to it." *Vattel, bk. 1, ch. 20, sec 244.
They have also been inoorporated into most of
onr State constitutions, and into that of the
United States; and, what is most important to
the present argument, with the State consti-
tution of Mas Bachu setts. So long as they re-
main in those constitutions, they must be treat-
ed as limitation* imposed by the sovereign au-
thority upon itself) and, a fortiori, upon all its
delegated agents. The Legislature of Massa-
chusetts is in no just sense sovereign. It is
but the agent, with limited authority, of the
State sovereignty, and it cannot rightfully
transcend the iMunds fixed in the constitution.
What those limit* are, I shall presently con-
sider. It is but justice to the argument to say
that 1 do not understand it to maintain that
the Legislature ought not in all cases, a* a mat-
ter of duty, to give compensation, where
private property or franchises are taken away-
But that the Legislature is the final judge as
to the time, the manner, and the circumstances,
under which it should be given or withheld;
whether when the property Is taken, or after-
ward!, and whether It !•, or (■ ant a ease for
MmpMUatkm nt lUL
the sovereign power has, among its prenwa-
tives, the rignt to make grants, to build
bridgta, to erect ferries, to lay out highways
and to create franchiaeB for public and privata
purpo*e*. If it has a right to make audi
grants, it follow* that the grantees have m
right to take and to hold these fraschisea. It
would be a solecism to declare that the aov-
franchise*, it may define and limit the natnie
and extent of such franchises; for, a* the power
is general, the limitations must depend upon
the good pleasure and discretion of the Bovereign
power in making the particular grant. If it
may prescribe the limits, it may oontract that
these limits shall not be invaded by itaelf or
by other*.
It follow*, from thia view of the subject
that if the Boversign power grants any fnta-
chise, it is good and irrevocable within the lim-
its granted, whatever they msy be; or else, la
every case, the grant will be held only during
pleasure, and the identical franchise may be
granted to any other person, or may be revoked
at the will of the sovereign. This latter doctriaa
is not pretended; and, indeed, is unmaintaina-
ble in our systems of free govemmenL If, on
the other hand, the argument be sound that
the Bovereign power cannot grant a frajichias
to he exclusive within certain limita, and can-
not contract *not to grant the *ame, or [*t44
any like franchise, within the same limits, to
the prejudice of the first grant, because it
would abridge the sovereign power in the ex-
ercise of its right to grant franchises ; the argu-
ment applies equallv to all grants of franchises,
whether they are broad or narrow: for, pro
tanto, they do abridge the exercise of Che sov-
ereign power to grant the same francbisM witii-
in the same limits. Thus, for example, if th*
sovereign power should expressly grant an ex-
clusive right to build a bridge over navigable
waters, l>etween the towns of A and U. and
should expressly contract with the grantees
tliat no other bridge should be built betwee*
(he same town*, tne grant would, upon th*
principles of the argument, be equally void in
regard to the franchise within the planks of the
bridge, as it would be in regard to the fran-
chise outside of the plank* of the bridge; for,
in each case, it would, pro tanto, abridge at
surrender the right of the sovereign to grant a
new bridge within the local limits. I am tiwar*
that the argument i* not pressed to this extent;
but it seems to me a necessary coosequenca
flowing from it. The grant of the francbise of
a bridge, twenty feet wide, to be exfdnsiva
within those limits, is certainly, if obligatory,
an abridgment or surrender of the sorereiga
power to grant another briilge within tha aane
limits; if we mean to say that every grant that
diminishes the things upon which that power
can rightfully act, Is such an abridgment. Yet
the argument admits that within the limiu
and planks of the bridge itself, the grant is ex-
elusive, and eannot be recalled. There ia n*
doubt that there Is a necessary eiccplion in
every such grant, that if it is wanted for publit
use. It may be taken by the Bovereign pow«r fet
vm
Tbk Cbabum Rim Bbioqi v. Tu Waubh BKoes CT i
(aliin^ !■ oat • Tiolation of the eontrHt, bat tt
U (tnctl; Kn exception resulting from the oft-
tura anil attribute) of (overeiguty; implied
from the very termi, or Kt least aotlng upoa
the BuLiject matter of the grsDt, eui) jure.
But the LegislaluTe of M««eachuMtta ij, mi I
have alreadj' sakl, in no juHt •enee tha tOTereign
of the State. The sovereignly belonge to the peo-
ple of the Stkte in their original chartuiter aa an
independent community, and the Legislature
poase^es those attributes of auvereignty, tad
those only, which have ueen delegated to it by
the people of the State, under its ooasUtution.
There is no doubt that among the powera to
delegated to the Legislature ie the power to
grajtt the franchises of bridges and ferries, and
others of a like nature. The power to grant is
S46*] not liiDited by 'aa^ restrictive terms
in the constitution; and it is of euurse general
kmd unlimiied as lo the terms, the manner, and
the extent of granting franchisiis. Tbeee are
matters resting in it* sound discretion i and
tiaving the right to grant, its grantees have a
right to hold, according to the Lt:rms of their
■ant, and to the extent of the exclusive privi-
;es conferred thereby. This is the necessary
result of the general authority, upon the prin-
ciples already stated.
Cut this doctrine does not stand upon gen-
eral reasoning atone. It is directly and posi-
tively allirmed by all the judges of the State
court (the true and rightful expositora of the
State conetttution) in this very case. All of
them admit that the grant of an exclusive
franchise of this sort, made by tbe Legislature,
is absolutely obligator; upon the Legislature,
■Lnd cannot be revoked or resumed; and that
it is a part of the contract, implied in the grant,
tftat it shall not be revoked or resumed; and
that, a* a contract, it is valid to the extent of
the exduiive franchise granted. So that the
highest tribunal in the State which is entitled
to pass judgment m this very point, has decid-
ed against Uie soundness of the very objection
now stated, and has affirmed the validity and
obligation of such a grant of the franobise.
Tbe (juestion, among the learned judges, was
aat whether tha grant waa valid or not; for
all of them admitted it to be good and irrevoc-
Able. But the question waa, what was. in legal
OMutruetioR, the nature and extent of the ex-
clusive franchise granted. This is not all. Al-
though the Legislature have an unlimited
power to grant franchises, by the Constitu-
tion of Massachusetts, they are not intrusted
with any general sovereign power to recall or
reaume them. On the contrary, there is an ex-
preas prohibition in the bill of rights in that
oonstltution, restraining tbe Legislature from
tftking any private property except upon two
conditions, first, that It is wanted for public
uae, and second, that due compensation is
made. So that the power to grant franchises,
which are confessedly property, is generali
while the power to impair the obligation of
tbe grant, and to resume the property, is limit-
ed. An act of the Legislature transcending
these bounds is utterly void: and io it baa been
conatantly held by the State judge*. The
MUM doctrine haa been maintained by this
rmtrt, on varioiu oocasiona, and especially in
Fletcher v. Peck, • Cnaek H. 139, and in Tbe
Trustees of Dartuouth College v. Woodward, 4
Wheaton B. 018.
Aiiother answer to tbe argwnent has been, in
fact, already given. It is, that by the grant of
a particular franchise tbe Legislature doea
'not surrender its power to grant fran- [*S4I
chisea, but merely parts with its power to grant
the same franchise; for it cannot grant that
which it has already parted with. Its power
remains the same; but the thing on which it
can alone operate, is disposed of. It may, in-
deed, take it again for public uses, paying a
' compensation. But it cannot resume It, er
grant it to another person, under any other cir-
cumstances, or for any other purpoaes.
In truth, however, the argument itself pro-
ceeds upon a ground which the oourt cannot
act upon or sustain. The argument is, that if
the State Legislature makes a grant of a fran-
chise exclusive, and contracts that it shall re-
main exclusive within certain local limits, it is
an excess of power, and void as an abridgment
or surrender of the rights of sovereignty, under
the State constitution. But this is a point
over which this court lias no jurisdiction. We
have no ri^ht to inquire in this case whether a
State law is repugnant to its own constitution,
but only whether it is repugnant to the Conati-
tution of the United States. If the contract
has been made, we are to say whether its ob-
ligation has been impaired, and not to ascer-
tain whether the Legislature could rightfully
make it. Such was the doctrine of this court
iu the ease of Jackson v. I«mphire, already
cited 3 Petera's R. 280-289. But the conclusive
answer is that the State judges have already
settled that point, and held the present grant
a contract, to be valid to the extent of tha
exclusive limits of the grant, whatever they
To anm up, then, the whole argument on this
head, I maintain that, upon the principles of
common reason and legal interpretation, the
present grant carries with it a necessary impli-
cation ttiat the Legislature shall do no act to
destroy or essentially to impair the franchise;
that (as one of the learned judges of the State
court expressed it) there is an implied agree-
ment that the State will not grant another
bridge between Boston and Charleatown, so
near as to draw away tbe custom from the old
une; and (as another learned judge expressed
it) that there is an implied agreement of the
State to grant the undisturbed use of the bridge
and its tolls, so far as respects any acts of its
own, or of any persons acting under its author-
ity. In other words, the State, impliedly, con-
tracts not to resume its grant, or to do any act
to the prejudice or destruction of its grant. I
maintam that there is no sulhorit; or principle
GBtabtished in relation to tbe cooatniction of
crown grants, or le^^ixlative grants, which doea
not concede and juatify tUls doctrine. Where
the thing is given, *the incidents, with- ('«4I
ont whidi it cannot be mjoyed, are also ^ven;
ut res ma^it valeat qunm pereat. I maintain
that a different doctrine is utterly repugnant to
all tlie urineiples of tha common law, applica-
ble to ell fnnchisea of a like nature, and that
we must overturn some of the best securities of
the rights of properly, before it can be eatab-
liehrd. I maintain that the common law la the
44T
Bdpbeui Ommx or tbb Uhitbi STAm.
and that h« boldi the title deeds of hit proper-
tj, corporeal, mnd incorporeal, under it. I
Diaintaln tliat under Ibe principle! of the ooin-
mon law, there exists no more right in the Leg-
islature of MasBBchuaetti to erect the Warren
Bridge, to the ruin of the franchiae of the
Charles River Bridge, then exists to transfer
the latter to the former, or to authprixe the
tormer to detnoUah the latter. If the Legisla-
ture does not mean in its grant to give any
ezclusive rights, let it say so, expressly, direct-
ly, and in terms admitting of no misconstrue'
tioa. The g-nntees will then take at their
peril, and must abide the results of their over-
weening confidence, indiscretion, and leat.
My judgment is formed upon tlie terms of
the grant, its nature and objects, its design and
dutiesi and, In its interpretation, I seek for
no new principles, but I apply such as are as
old aa the very rudiments of the common law.
But, if I could pursuade myaelf that this
view of the cas« were not conclusive upon the
only ijuestion before this court, I should rely
upon another ground, which, in my humble
judgment, is equally decisive in favor of the
plaintifTs. I hold that the plaintiffs are the
equitable ss.-'i^'nees (during the period of their
ownership of the bridge) of the old ferry be-
longing to Harvard College between Charlea-
town and Boston, for a valuable consideration;
and, as such assignees, they are entitled to an
exclusive right to the ferry, so as to exclude
any new bridge from being erected between
those places during that period. If Charles
River Bridge did not exist, the erection of
Warren Bridge would be a nuisance to that
ferry, and would in fact ruin it. It would be
exactly the case of Chadwick v, The Proprietors
of Haverhill Bridge; which, notwithstanding
all I have heard to the contrary, I deem of the
very highest authority. But, independently of
that case, 1 should arrive at the same conclusion
upon general piinciples. The general rights
and duties of the owners of ferries, at the com-
mon law, were not disputed by any of the
learned judges in the State court to be precise-
ly the same in Ilfassachu setts as in England.
1 shall not, therefore, attempt to so over that
•48*] 'ground with any further illustrations
than what have already, in another part of this
opinion, been suggested. I cannot accede to
the argument that the ferry was extinguished
by operation of law by the grant of the bridge
and the acceptance of the annuity. In my
judgment, it was indispensable to the existence
of the bridge, as to its termini, that the ferry
should be deemed to be still a subsisting fran-
chise; tor otherwise, the right of landing on
each side would be gone. I shall not attempt
to go over the reasoning by which I shall main-
tain this opinion, as it is examined with great
clearness and ability by Mr. Justice Putnam, in
hU opinion in the Slate court, to which I gladly
refer, as expressing mainly all my own views
on this topic. Indeed, there is in the whole of
that opinion such a masculine vigor, such a
soundness and depth of learning, such a forci-
ble style of argiimentation and illustration,
that in every step of my own progress 1 have
sedulously availed myself of his enlightened
labors. For myself, I can only aay that I have
■a jat heard no anawer to ma reaaoniug, and
t«4
■ 11 li
my belief h that ta m jnridieal i
unanswerable.
Before I close, It is proper to notice, and I
shall do it brieliy, another argument strongly
pressed at the Mr against the plaintiffs, and
that ia that the extension of the term of tbt
frsLnchise of the plaintiffs for thirty years, by
the Act of 1792 (erecting the West Boston
Bridge, between Boston and Cambridge), and
(he aeceptaace thereof by the plaintiiTs,
amounted to a surrender or extinguishment of
their exclusive franchiae, if they ever had any,
Lo build bridges over Charles River; so that
Ihey ars barred from now setting it up against
tlie Warren Bridge. In my judgment, there ia
no foundation whatsoever, either in law or ia
the facts to sustain this objection- If any
legitimate conclusion be deducible from the
terms of that act, it is that the plaintiffs, if
Ihey had claimed any such exclusive right over
the whole ritrsr, would by their acceptance of
the new term of yearn have been estop^ to
claim any damages done to their franchise by
the erection of West Boston Bridge, and that
their consent must he implied to its erectioB.
But there is no warrant for the objection ia
any part of the language of the act. The ex-
tension of the term is not granted upon any
condition whatsoever. No surrender of any
right is asked or reiiuired. The clause extend-
ing the term purports, in its face, to be a melt
donation or bounty of the Legislature, founded
on motives of public liberality and policy. It is
granted expressly as an encouragnnent lo enter-
prise, and as a oompensatiau 'for the |*t<l>
supposed diminution of tolls, which West
Boston Bridge would occasion to Chsrles River
Bridge, and in no manner Buggests any GacriSos
or surrender of right whatsoever to be made
by the plaintiffs. In the next place, the erec-
tion of West Boaton Bridge was no invasioa
whatsoever of the franchise of the plaintiffs.
Their right, aa I have endeavored to slioiv-, was
limited to a bridge, and the travel between
ChariestowR and Bosloo, and did nut extend
beyond those towns. West Boston Bridge was
between Boston and Cambridge, at the distsno
of more than a mile by water, and by land
of nearly three miles; and as the roads then
ran, the line of travel for Weal Boston Bridge
would scarcely ever, perhaps never, approach
nearer than that distance to Charles River
Bridge. The grant, therefore, could not have
been founded in any notion of any surrender
or extinguishment of the exclusive frsn-.-hise of
the plaintiffs, for it did reach to Such an ex-
lent. It did not reach Csmbridge, and never
had reached it.
As to the report of the committee, on tbe
basis of which the West Boston lli'idge waa
granted, it has in my judgment no leyal bear-
ing on the question. The committee say that
they are of opinion that the Act of 1785 did
no confer "an exclusive grant of the right to
build over the waters of Charles River.' That
is true; and it is equally true that theplainliffa
never asserted or pretended to have any rack
right. In their remonstrance against the eree-
tion of West Boston Bridge, they assert no such
right; but they put themselves upon mere equi-
table considerstions, addressing themselves b*
the sound discretion of the Legislatura> "
Feler* >>•
1S37
Thr Chaujs Riveb BaittOB v. Thk Waukk Bbimb R al.
tbcy hkd auertcd luch ■ broad right, ft would
not iu£tily aay GOaclusion Ihut Ihey were
cmlled upon to surrendar, or did surrender
thair reAl nod unqueatioiiablB rigbta. Tbe
Leptimtuie uadeistood ittell to be granting
a boon, ud not making a bargain or asking
a favor. It was liberal, becauae it meant to be
jiut, in a case or acknowledged luu«rd, and o(
nonorable enterprise, very beneflcial to the pub-
lic. To suppose that the plaintiffs meant to
surrender their present valuable and eictuaive
right of franchise for thirty-four remaining
years, and to put it in the power of the Legis-
lature the next day, or tbe nast year, to erect a
bridge, toll or free, which by its contiguity
should ruin theirs, or to 'take away all their
proAts, I* a supposition, in my judgment, truly
extravagant, and without a scintilla of evidence
to support it. Tbe burdtiis of maintaining the
bridge were to remain; the payment of tbe an-
nuity to Harvard College was to remain: and
860*] yet, upon this 'supposition, tbe ezten-
aioa uf the term of their charter, gisnted in
the shape of a bounty, would amount to a right
to destroy the franchise the next day, or ~' -
next hour, at tbe pieaeure of tbe Legislature
cuinat perceive upon what ground such an
plication can be made; an implication, not
arising from any words or intent expressed on
the face of the act or fairly inferable from its
purpoMi, and wholly lepu^ant to the avowed
objects of the grant, whieli are to confer *
benefit, and not to Impose an opprMsiva burden
or create a ruinous competition.
Upon the whole, my judgment is that the act
of the Litgiaiature of Massachusetts granting
tbe charter of Warren Bridge, is an act im-
pairing the obligation of the prior contract and
grant to the proprietors of Charles River
Bridge; and, by the Constitution of the United
Stales, it is, therefore, utterly void. I am
for reversing the decree of the State court (dis-
missing the bill}, and for remanding the cause
of the State court for further proceedings, aa
to law and ^ustice shall appertain.
Mr. Justice Thompson.
The opinion delivered by my brother, Mr.
Justice Story, I have read over and deliberately
considered. On this full consideration, I concur
entirely in all the principles and reasonings
contained in it, and 1 am of opinion the decree
of the Supreme Judicial Court of Massachusetts
should be reversed.
This cause came on to l>e heard on the tran-
script of the record from the Supreme -Tudicial
Court, holden in and for the County of Suf-
folk, in tbe Commonwealth of Massachusetts,
and was argued by counsel; on consideration
whereof, it is ordered, adjudged and decreed by
this court, that tbe decree of the said Supreme
Judicial Court In thia cause be, and the tame is
bereby aflBrmed wiih eoata.
66 set
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^ GENERAL VIEW
OEIGIir AJSTD NATtTBE
ovTsm
CONSTITUTION AND GOVERNMENT
UNITED STATES
POLITICAI, HISTORY AND CONDITION
COIOKIES IKD STATES, FROM 1774 UKTIL 1788,
lEE DECISIONS OF TEE SDPBEME COURT OF THE SUITED STATES,
opinions IK THE CASES DEClllEll AT JASDAEI TERH, 1837,
KSSTBiimS ON HIE POWESS OF THE BIATB8.
BY HENBY BALDWIN,
Om of tha AMOdUe JuttioM ot ths BuprenM Oourt of Uis Unttod 8M«k
PHILADELPHIA,
Digitized byGOOQiC
lasT. c)
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INDEX TO THE PRIBCIPAL MAHERS
tdJodlcmtloDa Id tb« eoarta In Rnglaiid dnce tta*
RetDluIlOD. tbeir wtlght taO elTrL-l, 3. 4tl.
AllUnee betKcen tlie Statu : DALura aad eflecl
Ihpreot. Bit, 70. ISO.
TreatT or. wlrh France : Iti oatura and effect,
su, an.
iJllaB In a war, rule aa to acquliltloni mu!
ATtlclM ot confpcIpratloD, nature and detects at.
It. ei. 66, TO. 103.
Baak note* and bank bllla. diatlnctlon between.
BIHa of credlt.'what are Hd what not, 114. lis.
122, liT.
Srotecled bv Ibi
I Ibe EOlonlci i. — ,..-f • --
ColoniM, ttaeir connection n'ltb EnEland. and i
llttcal coDdKian, till tbe Declaration of 1
dependence. 26, 4B, Ql. H3. lu, 'i-2.
Colonial KOvernnieDt*, Ibelr natun and powora,
26. 50, SS, HI.
Commerra. extent ot the power to resniate. 69,
161, 184, 1S5.
It! limitations, IS2, IST.
of tbe i^oloDlea md State*. 3.
ling law*. eranH, elc. S.
d nndei tlie Cocatltutio
powers or. witblD Ibe States, 83, 9fi, 68. 1811.
powers o(, wltliln tbe territories, dock jarda,
etc.. 85. 87. 98.
proceedlDis ot, before Jaly 4, 17T6. 4, 26, SB.
ceedlnn ol
D 1776 till 1787. 77.
24. 29. 32.
mips for Ita constraetlOD, S. 7. D. SO. 48. 47,
09. 102. 104. IJB. 120, 185.
eonBlrucllon of partlcatar parte tbereof. 129.
IBS. 190.
dirrerent construct lone thereof, 2. 86, 100,
126.
Its practical effect and operation, 20.
kmeadmenla tberpto. 13, 18. 24, 4fi.
exceptiona. problliltlonB, and reserTatfons. "
64.
Constituttoni ot atatea, bow farmed, 18, 2D, 29,
31. 32, 70. TD. 81.
CODBtllutlon ot KoslBnd, 4. 7, Bl.
comnnred with tbaaa of the Onlted Stateii.
CoDtracta, obllcallon of, loTlolable bj State law.
48. KS. 137. 140.
what Impaln and what Dot, 12S, 131. 141,
178.
CoTporat to:
a of KOrernment. ni. 82. 84. 138.
, rlrtts of. 42. lafl. 13ft. 140.
CODTcntlons. ot tbe states of EDclnnd, 5fl.
of tbe States of tbla ITalon. 12. 35. 59, 66.
Crown lands, to nhom tber beloDKed after the
Berolntlon, 49. 66, 76. 86.
DrcUratloB ol rifbta at tbe rerolntlon Id Knr
land. 4'
of rlebta
20. 63.
ot Irnleoi'odence. Ita elTecta on tbe political
condlllon of the several BUles, 28, T2, 7G.
78.
Ksn^lloii^. Jo deeds aod sraats. bow construed,
TliililiiiK, '
ITorrlea, rlchl of, detned, and itranta tbareof, ISO,
101, 103,
nature, eitent, a>d constrnetlon of, ISd, lU,
Franchlae, eorponte. what ar*. 188.
ot port markets, turs. ferilaa, tlialr astan^
vie, 194, 157.
GoT-ernmeot. federal law orsaolsed and admlnll-
tereJ, 20. 25, 88.
Ita powen. nature and eitent tberoot, 33, S4,
of tetrltorie* u
Bliued. 142. .
» orgaolaed, and powers, BS,
. ..-. 148. 184.
to charitable or public use. 142, 143.
for private benefit, 143, 144.
of franchises on poUle hlihways and rlTOf^
142, 144. 14S. 1S2,
ot (raochisea on private propei't.v. 149. llil.
ancient, or charters, how conitrued, 48. 44.
ot franchlB''H i<j pmcrlptlOD, on what found-
ed, 164, 1S6.
conBldei'BtloD ot, and when void, 1Q2. 15B,
1S7. 161. 166.
bow proved, and their siteDt, 146. 149, IBS,
154, IBB.
when eicluBlve, or maj b« concurrent, tST.
168, 165, 1B7.
Health lawa, power of Statea to pasa. IB4.
iDBpectlon laws, aitent of tbe power of Blataa ta
pESB. 170, 184. 187.
nJItmi or tongrea* over. 18B, 19*.
at Slatea. bj wbon to b*
JurlBdIcllon of atatea deOned. aad tta aitant, 88,
!.Bnd In coloDlea, tbe abaolnte propriety tbereot,
49.
Laws of SiBles. when snbleet to n>vlBlon and con-
trol bf Coniress, itO. 180, 101.
wbsD void and when valid. 185, IBS.
e eoloDlM^ 4, a.
, 77, 137, 139.
N'ew Btstei. how admitted Into tbe CpIoo. 22, 00,
82.
Ordlnsore of 1T8T. tt* provtslona and altect, B,
88, 90.
Paapers, power ot a State to prevent tbeir tntro-
ducilon, 186. 104.
People at the United States, tbe term deflned. 81,
how they acted In adoptlne the Constllatlon,
18. 31. SB.
by what people It was adopted, SO. 81, 82, OT,
how represented under the Consdtiltton, 88,
D5.
Powers, prerogative ot the Statea, TS, 148,
Ttserved to the Btatea by tbe CoDstlliitlon, 48,
171. 188.
Powers, Implied ot constructive, tbelr nature and
eftect. 38. 41. 102. ITOb, 193.
neceBsary and proper to carry Into •Beet
granted powera, 105, 182. 189.
eitent of enumerated powera of. granted n
20, etc.
PrMUbl* to tbe Cautllntlon, nioiilDg tnl
itnictlon thereof. 80. 87, fll. »7.
PrerotallTf PP^ST* J° <^* Untttd SUtei, bow o
■Idered,
PTMerlptlon, j
', deaaed. ISS.
Lo'wbat "estate th'tj •lui^.u, mu.
Pnaamplloii In Citor of the ralldltj of State lawi,
147, 163.
PrabtUtloai on Slntea b* the ComttltottoD. nature
and effect thcraof, 114. 170, 173. 187.
BMarraitMi In
4B, AG.
•t jMwer* In Untb ancBdnsnt.
Statti, irfiaei. 13, 18.
eonfederaMon between, IS. M
pollllciiJ illnatlon of. durlnjr
tbe Confederation, and undi
tlOD. 1,1. 14. 71, fl-1.
boundarlpi and terrltorr tfaereof, ST.
bow repreMOIed Id Coniren, SS.
Terriiort,
5, orlKlnaJ li^ht at. In wbou TMted, M,
, SO, 8S. B8, BB.
>w It becauip Tvntea In tba DnlUd SUtaa,
and alhct tbatMf 8T, 83, 61, 04, 07.
eCfcct. 72, 8fl, 87,
eonatructiou of treatEea. 88. 172.
Iti affect ta tba conatractlan of tbe COBitlto- j Ututad Stalea, the term deflned, 18, U.
tlo^ IS^ 40^ H, 08, 101; 181, loa. ' boondailw tbareof. 80, llOe.
.dbyGOOgIC
A QENEHAL VIEW, etc.
If th«ra u* uiT cMes in wbtch tht Judge* of
ft oonrt of UiB Uat reaOTt maj, without apologr,
praMDt tb« grounds of their Judgment in dettul,
tliej ftre those which krise on an »llagcd re-
pognftnce between ft Uw or kct of » State, and
the Coutitution of the United Statei. There
ttn none which deaerve such minute exftmlna-
tion of fundamental principlei, which bear on
the gntnta and reetrictiona of powera, and when
d«TeIoped> impoae their uniform applicatione
mdar higher obligmtious, than those which reat
upon this court and all ita membera. In auch
caaea, it is peculiarly neceaaarj to roeur to
aftfe prindplea, to auitain them, and when aus-
tsiaM, to make them the tests of the argu-
ments to be examined; these principlea are few
and simple, and though somewhat obscured by
too Bou refinement upon them, can be easllj
aaeartained b^ the same mode in which we
Sod the principles of other machines, a refer-
moo to the first moving power which gives the
impuli* to government.
At mj apialona on constitutional qneations
on ft eourse of Inveatigation dif-
it, in justice to myself, submft them to th*
profeisiou without a full explanation of what
may be deemed my peculiar views of the Con'
atitutioD. By taking it as the grant of the
people of the several States, I find an easy so-
lution of all questions arising under It;
whereas, la taking it as the grant of the people
of the United States in the a^egate, I am
wholly unable to make its various provisions
consistent with each other, or to find any safe
rule of interpreting them separately. In a
matter of such importance as this, I cannot
assume a proposition on which all mj opinions
depend, but must establish it by all tbe au-
thority that can be brought to support it,
against opposing opinions of great weight, and
which are those most oommonly received.
Without doing tbis, my premises would be at
once declared unfounded, and my conclusions
of eourse erroneous; it is therefore necessary
for me to take this eourse, or withhold any
publicatioB of my opinions.
HENRY BALDWIN.
ntOPRIETORS OF WAKREH BRIDOB.
POOLS it ftl.
LESSEE 07 VLEEQER. at al.
THB MAYOB, etc^ OF KBW YORK
lOUf.
Tfaongh none of the judMa who have eon-
enired with tbe majority oftlM oonrt in their
judgment in tlwse cases liave deliva«d any
■eparate opinion, and thoo^, having boen more
anxious as to Uie resnlt than the eourse of
reaaoning, the illuatrations or authority wUch
led to it, it was my intontioti to bava been
9*] eontent with a 'silebt oononrrenoe; yet:
reasOM which have since ocenrred, have de-
termined me to present my viaws in sacb ease
to the profession. In i^ of them the result
haa aeoorded with my opinions, formed when '
tba MMa wera first preaented for onr deoiiion i
at fonMT tenna, and my most deliberate judg- j
BMat at the preaenti hot in thla respeet my |
•Kaatloa la peealiar, aa amt of the Ja^aa who
sat during the fonaor argnmente, concur in
all the present opinions of the majority. In
the case of The Commonwealth Bank of Ken-
tucky, 1 was in tlie minority; in The Charles
River Bridge caae, it now appean that I stood
alone after the argument in 1831; the Tennes-
see Boundary case bung in doubtful scales, and
in the New York case, I was one of a bare ma-
jority. By changes of judges and of opinions,
there ia now but one dissentient in three of tbe
cases; and though vaj opinion still ditTers from
that of three of mj brethren who sat in the
fourth, aix yean ago, it is supported by the
three wlio Iwve since lieen appointed. Placed
in a position as peculiar now as it was then
and since, I feel called upon to defend it, and
to explain the reasons why it was tlten aa-
Bumed and la now retained.
In the fiftieth year after the frame of the
Constitution had been agreed on in convention,
and anbmitted to the people for their ratilloa-
tion, this court was called upon to decide four
eoustitntioual questions of deep Interest, which
had bean kms depending, and which neither
counsel or IndMa deemed to have been eattlad
by any antnorTtative eiposltion of those parts
of tbe Constitution that bore directly npon
them, or came within any established princi-
plea and nilea of aonatniction of tlds court
which would govern them.
These questions were, 1st, What h a oon-
traet — ita obligationa, and what impair* iti
2d. What are bills of oreditl 3d. What is oom-
meroa with foreign nations — what is not, and
what la the internal poUot of a SUUt ith.
lis
(tenuM AHD Natuu at rum CoKBrmmm.
Wkftt k the effect of b Mmpaet of boundarj,
made between two States, with the conBent «f
Congresir Of all of which there had long
been, and continued to be, great diversity of
opinion among the judges; which did not oeate
CO eziit after they were decided, and ma; exiat
in future, when the same or similar question*
ahall occur.
It had long been to me a subject of deep re-
gret, that, notwithstanding the numerous, cou-
siatent, most solemn, and (with some few, and
mostly late exceptions} to my mfnd most satis-
factory adjudications of this court, in expound-
ing the Constitution, its meaning yet remains
aa unsettled in political, professional, and Judi-
cial opinion, SB it was immediately after its
adoption. If one is to judge of the next b^
the results of the past half century, there is
but a slight assurance that that instrument
will be better understood at the expiration
than it is at the beginning of the period. It is
indeed to he feared that unleas some mode of
interpretation dilTerent from what haa been
ueually pursued in argument is adopted, the
eescnt uncertainty must become utter con-
sion. In reviewing the course of argument
on both sides in these cases, the remark is fully
justified that we have been referred for the
true interpretation of the Constitution to
S*] 'books, essays, arguments, opinions,
speeches, debates in conventions and legislative
bodies, by jurists and statesmen, and by soma
who were neither; which would not be offered,
or suffered to be read in any court, aa entitled
to respect ia construing fan ordinary act of
legislation, or a contract between individuals.
This reference has not been confined to exposi-
tions cotemporaneous or near to the time of
the adoption of the Constitution, the views of
its framers, or those opinions to which eourta
of justice can consistently with their duty de-
fer their own-, hut the range haa lieen of the
widest kind, embracing whatever haa appeared
in print on the various subjects involved, either
here or abroad, and up to the present time,
while these suits have been depending in thia
court for re-arginment. The history and spirit
of the times, past and present, admonish us
that new versions of the Constitution will be
promulgated to meet the ever varying course
of political events or aspirations of power, and
that if we suffer our judgments to be influenced
by what haa been presied upon us as authority
for present adjudication, we must pay the
iftDie respect to the same kind of authority,
when future opinion* shall be formed, and
new expositiona be announced. We have
listened to the disquisitions of late writers on
the constitution of England, to the decisions of
their courts, nay, to the opinions of their
judges given within the last year; aa thIm to
guide us to the true intention of the framera
of the Constitution, in a most aolemn instru-
ment, carefully and most de[ibei«tely reduced
to writing in 1787. If we look to these aa safe
sources whence to now draw our knowledge of
eonstitutional law, or respeet them as a rale,
firesent decision, tliey muat be so taken in
atnre; and though the legislative anthorlty
of Westminster Hall over us has bean extinct
for more than sixty yeara, this tribunal must
continue to still look to its emanatkina, wheth-
er U treatiiea or judicial dwiMv, to ucertain
•T4
the meaning of our own supreme law. I kn
long since been convinced that there are bettv
and safer guides to professional and Judicial ii-
liries after truth, on constitutional questiona
lan those wbioh have been aa often reaortad
to, without effecting the desired result; a dear
and settled understanding of the ttrcis and
provisiona of an instrument of writing, wht^
operates with aupreme authority wherever it
applies. To me ft seems that it can be mads
Intelligible in all its parts, by applying to it
those established rules and maxims of the eou-
mon law, in the construction of statutes, and
thoae accepted definitions of words, terms, and
language, in which they had been used, and
been riscelTed, as well known and underatood,
in their ordinary, or legal sense, according ta
the subject matter. In appealing to the com-
mon law, as the standard of exposition, in all
doubts as to the meaning of written instru-
ments, there is safety, certainty, and authority.
The institutions of the colonies were based
upon itj it was their system of jurisprudence,
with only local exceptions to suit the condition
of the colonists, who claimed it as their birth-
right and Inheritance (B Cr. 333) in its iargcsl
sense, as including the whole system of En^Isli
jurisprudence (1 Gait- 493), the inexhaustible
fountain from whitA *we draw our lawa 1*4
(0 S. & R-, 330, 33fl, SeS). So it continued after
the colonies became States, in most of whiA
the common law was adapted by acta of As-
sembly, which gave it the force of a statute,
from the time of such adoption, and aa it waa
then; so that in the language of this court —
"At the adoption of the Constitution, there
were no States in this Union, the basis of
whose jurisprudence was not essentially that
of the common law in ita widest meaning; and
probably no States were contemplated in
which it would not exist." 3 Pet. 440, 448. It
is also the basis on which the federal system
of jurisprudence was erected by the Constitu-
tion, the judiciary and process acts, which re-
fer to "cases in law and equity," "suits at com-
mon law," "the common law, the principles and
usages of law," aa they had at the time been
defined and settled in England (S Cr. 222; 3
Wb. 221 ; 4 Wh. 116, 116; 7 Wh. 46; 10 Wh- »,
3Z, 6S, SB; 1 Pet. 613), and were adopted as
then understood by the old States.
From the very beginning till tlie consumma-
tion of the Revolution, the people of the col-
onies and States, in all successive congresses,
took their stand upon the common law and
constitution of England, as the 'lieira of free-
dom;" "English freemen, whose custom it is,
derived from their ancestors, to make those
tremble who dare to think of making them
miserable." 1 Joum. Cong. SO, 65, 138. In
the spirit and like the deacendanta of
Britain (lb. 143, 149), who procured "tlie in-
eatimable advantages of a free English consti-
tution of government, which it is the pri'iiep
of all English subjects to enjoy," "Eiiglishinea
reared up this fabric," "of such strencth aa for
ages to defy time, treachery, internal and for-
eign wars." "They gave the people of thdr
colonies the form of their own government."
"In this form, the first grand right is that ^
the pe<^le having a share in their own govera-
ment, by theb repreaentat^ves chose ' "■
••iTM," etc 1 Joum. M. " '- - *■■
t bulwark de-
iSti QoTXBNHDiT or THk Unm Sum.
fending th«lr property, u trial bj jury Mid
the wnt of ha1>eas corpus defend! taetr libertj;
"•» a part of our mild system of government,
that, sending its equitable energiea through at)
cliuuea and ranks of men, defends the poor
from the violent, the tenants from the lords,
•ad all from their superiors." "These are the
rights without which a people cannot be free
and happy, and under the protecting and en-
QOUTaging influence of which thei>e colonies
have hitherto so amazingly nourished and in-
creksed, Ihe.M are the rights a profligate min-
litry are now striving by force of arms to rav-
ish from us, and which we are, with one mind,
resolved never to resign but with our lives."
lb. 64i, 57. The very rights which placciJ the
crown of Great Britain on the heads uf the
three princes of the House of Hanover (170).
Sudi was "the equitable system of English
laws" (lb. 30, 41, 60), "the inheritance left us
by cmr forefathers" (80), "the great bulwark
of our Constitution" (U8), "the Brst and beat
nutsiniB of the Constitution, venerable to
Britons and to Americans" (163) ; "whose fore-
fatlian participated In the ri^ts and libertlM
they boasted of, and conveyed the same fair
a*]inheritance *to them. By that system the
ookmists claimed alt the benefits secured to
English subjects, whether they lived "3000 or
300 miles from the royal palace" (37); and the
BCTeral colonies as constituent membera of the
Brittsh empire, rested for "the perfect socurity
•f their natural and civil riglits, on the sal-
utary and constitutional principles" it eon-
uiined (Bl). It was "Ibe covenant chain" be-
tireen the mother country and them; the ehar-
tiBtt at the king were their written civil consti-
tutions of government, and the colonies would
not part with, or loose their hold of this old
covenant cbabi which united thair fathers.
IM, 164.
On this aystem, tbe Congress, the people, and
the colonies relied. They claimed as tneir in-
dubitable right the benefit of the common law
of England, ita constitution, and their sevenU
ebarteraj in their Declaration of Rights, in
1774 (1 Joum. 77, etc.), in July, 1775 (1 Joum.
134, 17e, 178) ; in December, 1770 (lb. 203). and
on the 4th July, 1770. Among the other griev-
•Jicea set forth in the Declaration of Independ-
ence, are the following: "He" (the king) "haa
oombbied with others to subject ua to a Juris-
diction foreign to our Constitution, and un-
Acknowledged by our laws, jiving his aaaant to
tlietr acts of pretended tegislatlon," etc., eta.
"For abolishing the free system of English
tews in a neighboring province." Vide 1 Joum.
SO, 6B, 60, fil, 04, 174.
Tor taking away our oharten, abolishing
our most valuable laws, and altering funda-
tnmtally the forms of our government." 1
X^wa, 8, B; 1 Joum. 126, 178.
The common law was not merely the baais
of the Bevolution, in of posing the oppression
of England, or deemed incompatible with the
genius of the people after the Revolution was
effected, aa a burden imposed upon them; but
the contrary. By the ordinance of 1787 it was
declared to be the basis whereon these re-
publiei, their lavrs, and eoBstltutions, are erect-
ed ; and which Congress therein fixed and esteb.
be formed in the territory northwest of the
Ohio. It was secured to them as a blessing
whereby "to extend the fundamental principles
of civil and reliciou* liberty;" "that the in-
habitants shall always be entitled to the bene-
fits of," etc, and "of judicial proceedings ac-
cording to the course of the common law." 1
Laws U. S. 479. That system, which had ef-
fected in England what it was one of the de-
clared objects of the present Constitution to
effect — "to establish justice," and "secure the
blessings of liberty to ourselves and our poster-
such inferior courts as the Congress
Ehnll from time to time ordain and estabiish."
To hu administered in all casas in law or equity,
as it had been, and then was in England, in
all the States and territories of the United
biates; and the judges were directed, by tbe
Judiciary Act, to take an oath "to do equal
right to the poor and to the rich" ( 1 Story,
the Judges in England had been en-
r gov-
must he traced beyond the Instrument i
created them to that great charter of Engliah
liberty, which embodied the common law; and
from 1774 to 1787, was equally revered by the
Britons of both oontinents. The great man of
the Revolution, in their first meeting in Con-
gress, on the Sth September, 1774, and 1b their
proceedings till the ZOth October, when "the
Congress then dissolved itself;" did not merely
declare in their resolutions and letters on whi^
ground they stood in asserting the rights of the
people and colonieK, but pointed to it as their
rallying point. To the journal published by
thair order, and verified by the autograph of
their secretary, ii prefixed, in the title page, a
medallion of which the following is a f ao simile.
The Magna Charta of England was the ped-
estal on which the column and cap of liberty
Wis raised, supported by the twelve colonies,
assembled by their delegates; declaring that
"on this we rely," "this we will defend."
In looking, too, to the names a! the mem-
bers of that CongTcsa,' '. Ix of whom, thirteen
Oatsm Ain> HATinn or the Ofmmrmmas
7«kn aftarwards, in a coDT«Dtioii of ttrelva
T] *of those Foloniei, ttien Statn, Kigned the
propoaed Constitution; I find a weight of po-
litical authority, wbich my mind canncit retigt;
and to feel bound to traee the great work of
the fatbert of the Revolution and the country,
back to ita source in the common law, the
Masna Charta and constitution of England, the
basis and pattern of onr own. In so doing, I
feel wetJ assured that in following their via
tnta, by which the Constitution waa estab-
lished, and has consummated all ita beneficent,
I purposes, th^re will lie found a via trita, to my
udfrment, on its true meaning in these parts
that bear on the cases which have been before
ua for adjudication. 1 shall do it without the
aid of any commentator except thia court, ai
the sworn interpreter, appointed by the Con-
stitution itself, not only to expound the mean-
ing of ita provisions, but to pronounce final
judgment on their results, on "all cases in law
and ciiuity arising undsr" it. Nor shall Icon-
aalt any other commentaries upon it than thoae
which are found in the opinions of the court,
delivered, with few exceptious, by the late ven-
erated Chief Justice.
In thus adhering to the old maxim, Sed me'
Uns et tutius est, petere fontes, i^uam seetare
riruloa, I am welt aware of departmg from the
modern mnde of coostruittg our ancient ehar-
tera. and grants of goveramenta; but if it
■hould lead to their true interpretation, I may
be permitted to ask of thoae who may have the
patience to read and sonsidar the general viewa
of the Constitutiou herein presented, to ex-
plain the grounds of my concurring judgment in
these cases, Si quid novisti, rectius istls can-
dide impcrtl, ai non hie utere mecumT In the
full conviction that by this mode of investi-
gating conatitutional questions, there will be
found standard rules l^ which to meaaure the
different parta of the supreme I
ita true Intentions, and that any other mode
will be an abortive attempt, ex fumo dare
lucem, I proceed to give my general viewa.
Taking it as already apparent that in 1774,
and 1776, our Constitution was the Englieh
oonatitutlon, and the free ajstem of English
laws WAS the common law then; and that
ayatein to yet be the law of the land, by thi
authority of the States, the Constitution, the
acta of Congresa, and the edjudicatlona of this
court. It la in thia law that we Sad the rules
of interpretation of atls of Assembly and of
&)ngre«a; of public and private grants, chai
ters, compacts, contracts; and to which we n
aort, as the standard by which to make our
decisions in all cases, where It haa not been
altered by eatabliahed usaf^e, or te^ialatiye
nor do I feel at libertj te follow any otW
than the principles of the common law, that
are welt eatabliahed and applicable to a case
arising under the Constitution, and which
turns upon ita interpretation; their adoptiai
has lieen, in my judgment, most clearly mads
by every authority which can impose the obli-
gation of obedience. My course, then, will be
to first ascertain what ore th« settled rlilet
and principlea of the common law. In the ex-
position of writings, public and private, in the
definition of terms and language, naed to de-
note the meaning and intention *of those [*■
who made the instrument, and of the instro-
ment Itself, as the deliberate, written, agreed
intention therein axpressed. When thus ascer-
tained, they will lie applied to those parta of
the Conatitution which bear on the subject
matters of these cases, as this court has here-
tofore applied them: and lielieving that m;
opinion in each of these cases is in perfect
consiatency with the former adjudicationa "
the authority of thoae adjudicationa shall be
deemed no further binding than the court it-
self has declared. "This opinion is confined to
the case actually under consideration." i
Wh. 207. 'it is a maxim not to be disregarded
that general expressions in any opinion, are to
be taken in connection with the case in whid
those expressions are used, ff they go beyond
the case, they may be respected, but ought not
to control the judgment in a subsequent suit,
when the very point is presented. The r«aMB
of thia maxim is obvious. The question actn-
ally before the court is investigated with cars
and considered in its full extent. Other princi-
ples which may serve to illustrate it are con-
sidered in their relation to the case decided,
but their possible bearing on all othci cases
is seldom completely investigated." B Wh. 3».
400. "Having such casea only in its view, the
court lays down a principle which is general-
ly correct In terms, much broader than the de-
cision, and not only much broader than the
reasoning with which that decision ie sup-
ported, but In some instances contradictorv to
Its principle." lb. 40; S. P. 12; Wh. 273, 331
Thus qualified, the judgments of tliis court
wilt be taken a* the rule for mine, as to the
principles and reasoning on which they are
founded; but as to terms or names which ai«
used for designation merely, I sliatl consider
them as not a^eoting the suhstante of the sub-
ject matter referred to by the court in naint
them, in a literal, or figurative sense.
The fundamental rule of construction is ta
ascertain the intention of a law, a grant, char-
ter, or contract in writing. "If tne law ex-
presses the senae of the Legislature on ths
:appenter»' lla]l.
..... ..^_,._,.-, Uaior John Sul-
I. Nstbaslel KulBOin, Ksqs. Prom Msssa-
enuietu Bnj, Uan. Tbomis Cuahltie. Samuel
AdKDU, JoUo Adsois. Robert Treat HiiDe, Kw*.
From Itbodc Inland and Proirldence I'lBiilatlODa.
Hod. Stephen Hopkins, Hon. Saniuel Ward, Bsqs.
Prom CDDoectlcut. llan. Bliphalet D^er, iijaa
Dsaae, Hon. itoger Sherman, EsqB. Frum the t'lfr
and douuCj of New York, sod other counties In
the Province of N'e« York. James puane. Jolin
Jsj, I'bJIp LlvlDKston, Isaac Low, EaqB. Vtam
Uw COHQ^ Of BuITolk. In the Proi4iiC( of New
York, Col. tviuiam Flojd. Esq. FroB New Jarsej,
Jsmsa Klu«r. wiiiiasilKvlnsstda, j«M Pabart,
1 Dboada
'i'DDIPSS uiniin, unsrics numpDreya. joan Mortoa.
Edward BIdaie. Esoa Krom New Castle. Kesi,
and Bussei. In Dcdsware. Hon. Cnaar Rodaty.
Thomas H'Kean, Oeorae Head, Gsqs. Prom Harf-
1 and, Robert Ooldsborough, ivllllam I'aca, Hamud
Cbaas. Eaqa Prom Virginia Hon. Peytoa Maa-
dolpb, Qaarm Waahlnilon, Patrick BenrT, Bk»
arir Bland, BenlsmlD [Jarrlsoo. Kdniimd Prndls-
laa, Baqa Fcam South C^rallna, Henrr lOddla
ton, John Rutledn. i;hrlstoDbar (JadMlen. Vboaas
Liacb, Edward RiitlMlss^ Bun. 1 Jaura. C«a|.
sa. sa.
Alib Oovu»uKHi or tHB UltlTtO StaTBB.
tatUtlug Uw, *■ fil«iDl7 H ft declarftto^ act,
ftnd axpresaei it in terms capable of eft^cMng
the object, the words ought to receive tbis con
atructioQ. If tliia interpretation of the wordd
■hould be too free for a judicial tribunal, yet
if the Legislature baa made it, and explained
ita owa meaning too unc^uirocatly to be miK-
which tend to public utililf ahouM
moat liberal and benign interpretation to effect
the object intended or declared, est res majia
Vktect quain pereat (1 Bt. Com. 89}, «o a* to
make tne private yield to the public iotereat,
knd in favor of public institutiuiia, anil all es-
tablishments of pietj, charity, education, and
public improvement. 11 Co. 70 to 7S; Hob. 97,
132, IS7i 1 Sev. 55; Dy. 2S&; B Co. U, b; 10
Co. 2B, Bi 9 Cr. 331; 3 Pet. 140, 481; 8 Pet.
436, 437; 10 Co. 34, b. Courts will look to the
provisions of a law to diacovur its objecta, to
meet its intention at the time it was made,
which they will not suffer to be defeated; it
will be Bought in the cause and necessity of
**] 'making the law, the meaning thua ex-
tracted, will be taken to be the law intended,
«a fully as if expressed in its letter; and a
thing which is witbin the letter, but not with-
in the intention of the law-maker, is not with-
in the statute. 1 Bl. Com. 60; 15 Johnson's
RL-porta, 3S0; U Mass. 92, 93; G Wh. M; 12
Wh. lei, 162; 0 Pet. S44.
"When the whole context demonstrates a
particular intent in the Legislature, to effect a
certain object, some degree of implication may
b« called in to effect it." 6 Cr, 314; 1 Bt.
Com. 92. The whole statute, and those on
■imilar anbjects, aa the context, will be taken
in aid, according to the apparent meaning of
their proviaions. 1 Bl. Com. 60; I Pick. 154,
1S5. The history and situation of the country
will be referred (o, to aacertaiu the reason and
meuning of a provision, so as to enable the
court to apply the rule of construction. 1
Wh. 121* 4 Pet. 432. la duubtful cases, the
title and preamble will be resorted to to ex-
plain the law. 3 Wh. 031; 4 S. & R. 16S. The
old laiv, the misi'liief, and the retnedy, will be
examined, and the new law be ao far expound-
ed as to suppress the mischief and advance
the remedy (11 Co. 72, etc.; 1 Bl. Com. 87| ac-
cording to the Bubject matter. 1 Bl. Com. 220.
Aa the meaning and intention of the Legia-
lature when thus ascertained i* the law itself,
the rule of action prescribed by legislative
power, it follows necessarily that such inten-
tion muHt be referred to the time of its enact-
ment; and the terms and language uaed to ex-
press the intention, must be taken as then
understood by those who so employed them,
ftnd not according to any subsequent deflnition
or acceptation, varying from their then settled
received meaning. 1 Bl. Com. 5R, 60.
There is another source from which the in-
tention of a law can be truly extracted — the
cdtdition of the oountry. 6 Wh. 416. Its
ua«ca* and customs, a Pet. 714; 12 Wh. 437.
l'b« Mttled course of judicial or professional
oplaJoa (6 Cr. 33; 2 Pet. 86), and legialative
luaga (I Dall. 398; 2 Pet. 65S, IU7), because
tkaae matters enter neceaaarily into the minds
at the law -makers, in any new provisions
rule in this country that when an Gnfliah
statute, or any of its proviaions or terms, Bava
iieen adopted here, that its settled construe-
Lion at the time of its adoption is taken with
it; but a contrary construction afterward*
made, Is not regarded. G Pet. 280, 231.
dn adherence to these rules ia called for by
the higheat considerationa in the conatruction
of the Constitution; if they are not followed,
then are none others which a court is at
liberty to adopt, as the indicie of the inten-
tion of the members of the General Convention
which framed, and the State conventions who
ratified it. Hence these rules have, by uniVera-
nl consent, been applied to the laws of all the
States and of the Union, in their respective
courts: end if not applied to tbut law, which
is a rule of supreme authority over the legis-
latures and courts of both, human ingenuity,
leasonlng and learning, will only aerve to make
it the more unintelligible, aa the period of ita
adoption becomes more diatant, and time shall
develop 'new theories or exigencies, which [*!•
will make it stiil more obscure, by new read-
ings, commentariea, and expositions. That
those which have been hitherto applied to ita
construction, even those of this court, have
been inaullicient to settle its meaning, ia but
too apparent in thoae questions now before oi
for adjudication, and those numeroua ones
which agitate and excite other tribunals and
the country. Discarding all rules of interpre-
tation which are inoonsiatent with those which
it has applied to the Constitution, 1 shall fol-
low in the path defined by this court, and take
that instrument, as it has declared it to have
been intended by its framers, to endure for
ages lo come (1 Wh. 326; 4 Wh. 41S), and de-
signed to approach immortality aa nearly as
human institutions can approach it. 6 Wh.
387. A law of supreme obligation, made for
the purposes it declares (lb. 381); by enlight-
ened patriots; men whoae intentions required
no concealment, employing worda which most
directly and aptly expreswd the idea they in-
tended to convey, as well as the people who
adopted it; must be understood to have em-
ployed words in their natural sense, and to
have intended what they saiil. "If any doubts
exist respecting the extent of any given power,
it ia a settled rule that the objecta for wbiefa
it is given, eapecially those which are ex-
pressed, should have ^at influence in the con-
struction. The rule la given in the language
of the instrument which confers the powers.
taken in connection with its purposes," 9 Wh.
188, 189. "Tbc words are to be taken in their
natural and obvious sense, not in a aensc un-
reasonably restricted or enlarged (1 Wh. 326);
not that enlarged construction, which would
extend words beyond their natural and obvious
import, nor that narrow construction which, )n
support of some theory not to be found in the
Conititutiou, would cripple the government,
md render it Incompetent to the objects of its
Institution." 9 Wh. 1S8. "Its spint is to be
respected not less than ita letter, yet the spirit
to be collected chiefly by the words."
lere they conllict with each other, where dif-
ferent clauses bear upon each other and would
nconsistent, unless the natural and corn-
import of words b« varied, construction
becomes necessary, and a departure from the
■ If
Ouan Am KA'rtiSB or Tat OoxnnoTtMi
•bviou* mekiiln^ of wordi U Juitiflable. But If
tiie plun mcftniDg of a proviBiou is to be diare-
gkTOed, when not contradicted by any other
KDvision in the aame instrument, because we
tleve the framera could not have intended
what they eay, it must be one in which the
absurdity and injustice of applying the pro-
Vision to the ease would be so munatrous that
ail mauliind would unite in rejecting the appli-
cation. 4 Wh. 282, £63; I Bl. Com. SI, S. f.
It is proper to take a *iew of the literal
meaning of the words to be expounded, of their
ootmecLion with other words, and of the gen-
eral objei'ts to be accomplished by the prohib-
itory clause, or by the grant of power. 12
Wh. 437. llie intention must prevail: it must
be collected from the words of the instrument,
which are to be understood in that sense ta
which Ihey are generally used by those for
whom the instrument was intended. Its pro-
11*] visions are not to be 'construed into in-
aignificance, nor extended to objects not con-
templated by its framers, ur comprehended in
it. 12 Wh. 332. It was not intended to use
language which would convey to the ey« one
idea, and, after deep retlection, impress on the
mind another, i Wh. 420. Wonls must be
taken in connection with those with which
they are associated. 4 Wh. 418. The whole
clause or sentence is to be taken together, and
the intention collected from the whole, li
Wh. 334. Every part of the article must be
taken into view, and that conatruction adopted
which will consist with its words, and promote
its general intention. 1'he court will not give
afTirmative words B negative operation, where
it will defeat the intention, but may imply it,
where the impHcatiou promotes the intention.
6 Wh. 3es.
The Constitution is a Grant.
The circumstances under which the Consti-
tution was formed, the history of tht
, and the
uischiefs of the confedei
motives which operated on the !
tbe day, are also to be considered in
ing the meaning of the Constitution; which
was intended to change a system, the full pres-
sure of which was known and felt, by super-
seding the confederation, and substituting a
sew government, organized with substantive
powers, to act directfj on the subjects of their
delegated powers, instead of through the
instrumentality of Slate governments. 6 Wh.
SOB; 12 Wh. 438. 43!); 1 Wh. 332.
This change was clTectcd by the Constitu-
tion, which, in the language of this court, is a
grant. "The grant does not convey power
which might be beneBcial to the grantor if re-
tained by U.mself, or which can move solely to
the benefit of the grantee; but is an invest-
ment of pouer lor the general advantage, in
tbe hands of agents selected for that purpose,
which power can never be exercised by the
Eeople themselves, but must be placed in the
ands of agents or lie dormant."^ 9 Wh. 1B9.
The language of the Constitution is the same.
"All legislative powers herein granted shall be
vested in a Congress of the United States," etc.
"The executive power shall be vested in a
President of the United States of America."
The judicial power of the United States shall
be vested in one Supreme Court." ,
• I*
Here, tkea, there U aometUiig virfbk to tti
judicial eye, tangible by judicial minds, rcawi-
ing, illustration, and analogy; intelligible b«
judicial rules and maxims, which, througfc all
time, have prescribed its nature, efTect, and
meaning. It is a grant, by a rrantor, to a
grantee, of the things granted; whieh arc, leg-
islative, executive, and judicial power, vested
by a constituent, in agents, for the enumerated
purposes and objects of the grant. It declaret
the grantor and constituent to be "the people
of the United States," who, for the purposes
set forth, "ordained and established" it as a
"Constitution for the United States tt
America;" "the supreme law of the land;" cre-
ating what its framers unanimously named,
"the federal 'government of these States." (*IS
Its frame was "done In convention, hj tht
unanimous consent of the States preaent." TlM
7th article whereof declared that "the ratifica-
tion of the conventions of nine States ihall be
sufljcicnt for the establishment of this Consti-
tution between the States so ratifying tbe
same." And, to leave do doubt of their in-
tention aa to what should he deemed a con-
vention of a State, the members thereof, by tbe
unanimous order of tbe convention, laid it be-
fore Congress, with their opinions, that it
should be submitted to a convention of dcle-
:hosen in each State, by the peonle there-
Di, under the recommendation of Its Iwa*
latures, for their assent and ratiflcation. 1 Vol.
Laws U. S. 70, 71. No language c
plaiu and clear than the words of the Coniti-
tution, nor can the intention of its framers
more definitely appear than by the unanimoBI
order of the convention, submitting it to the
old Congresa, under whose resolution the mem-
bers had been appointed by the federal Statea.
The intention of Congress is equally manifest
in their unanimious resolution, adopted after
receiving "the report of the convention lately
assembled in Philadelphia, in the words fol-
lowing (the Constitution): 'Tbal^ the aaiJ
report, with the resolutions and Tetter U-
companyin^ the same, be transmitted to the
several legislatures, in order to be submitted
to a convention of delegates, chosen in eadi
State, by the people thereof, in conformity' to
the resolves of the convention, made and pro-
vidrd in that case. 1 Laws, SO, 00. But this
coincidence of the words of the ConstitutioB
with the expressed and unanimous deelar»tiaa
of tlie members of the convention and the
Congress, is neither the only nor most s»tii-
factory mode, by which to identify tbe
grantor, who conveyed the powers invested bj
the grant, and the constituent, who appointed
the appropriate agenta for their execution by
There are other objects of the grant, batidea
the delegated powers of agency; the grant im-
poses oonditious, limitations, prohibitions, and
makes exceptions on the exercise of the powers
of the States and tbe people thereof; whiA
form an all-important part of that auprciaa
law which declares that "the judge* in avery
State shall be bound thereby, anything in the
Constitution or laws of any State to the oon-
traiy notwithstanding."
It is therefore a law paramount in authority
over the people of the several Statea whs
adopted it in their eonveutions; supreme, aa
Skldwia.
um ao*miMKi(T or rat Unitd States.
»all OT«r their aapnins taw, ardalned hj theii
■OTcreign power, •• thoM laws eoacted in the
ordinu-j course rf Icgislulion by de!eg»ted
power. The effect «f «'bic)i is that the Constitu-
tion, the creature, prescribes rules to its creator,
which expreiialy eonflne its action within defined
limits, and annuls all aets which are prohibit-
ed or excepted. Nay, it gaes farther, it itn-
poMS a* a condition that States shall not act
by tbeir or-n law, or compact, or agreement,
with another State, without the consent of
CoagTMS; which is a creature created by the
grant of the people of the States in their sep-
arate eonventiODsj froin which It necestarily
results that this grant, this constitution uid
appointment of agents, must emanate from
IS*] *some power paramount over, or from
the people of the several Btatea themselres.
We March the Constitution in vain to Snd the
existence or recognition of such power para-
mount; there Is no function which it can per-
form; it can oontrol no action by the govern-
ment, or any of its departments. Tbe whole
frame of the Constitution can be deranged;
the structure of government, with all Its
powers and prohibitions, may be prostrated by
amendments, save that "no State shall, with-
out its consent, be deprived Of its equal suf-
frage in the senate," according to the provisions
of the Sth article, wliich require the invocation
of no power, paramount to that which can
operate with such force.
The powers not delegated ta the United
States, or prohibited to the States, are, by the
tenth amendment, "reserved to the States re-
■pectively, or to the people." These terma,
■States," "State* respectively," and "the peo-
Ele," to whom this reservation is thus made,
are been deflned by this court too olearly and
too often to be mistaken, or to remain open for
diacusaion, while its authority is respected.
In netcber v. Peck, this term is applied to a
StAte, as existing independently of any re-
straint; "^ single sovereign powsr;" and to a
Bt«te as one of the United States, under the
federal connection between them, It is thus
qualified:
"^ut (Georgia cannot be viewed as a single
KBConnected sovereign power, on whose Legis-
Ifttore no other restrictions are imposed than
■ay be found in its own constitution. She Is
S part of a larKe empire. She is a member of
ike American Union, and that Union has a
Omstitutlon, the supremacy of which all ao-
Icnowledge, and which imposes limits to the
legislatures of the several States, which none
elalm a right to pass." 6 Cr. 136.
The political situation of the United States,
Anterior to the formation of the Constitution,
and the chauM effected by Its adoption, is bet-
ter lUustratM in the language of this court
than it ean be in mine.
It has been said that they were sovereign,
were completely independent, and were con-
■aeted with each other only by a league. This
It true. But when these alliM lOTereigos con-
•rarted their leame into a government, when
tbay eonTerted tneir congress of ambaasadora,
4epirted to deliberate on their eamvon ooa-
cems, and to recommend i
utility, into a legislature, empowered to enact
laws on the most interesting subjects; tbt
whole character in wlilch Ihe States appear nn-
derwent a change, the extent of which must
be determined by a fair considermtion of the
instrument by which that change was effected."
9 Wh. 1S7. Here, then, we have a power
which was single, sovereign, and unconneoted;
with a legislature unrestricted, converting a
congress into a federal legislature, which was
fully competent to ereet it. What were names
'and things, had been before taught by [*14
the same instructor. "This term 'United
States,' designates the whole American em-
pire." It is the name given to our great re-
public, composed of States and territories (S
Wh. fiI4) ; "constituent parts of one great em-
pire" (S Wh. 414), "who have formed a eon-
federated government" (12 Wh. 334; 2 Pet.
S90, 601), by the act of the people of the "great
empire," the "great republic," tbe "American
empire," the United Statea. "The people of
America," "the American people," "The people
of the United States," are but terms and
names, to designate the grantor of tbe thing,
which was thus formed by the people, of the
constituent parts; the thing, the power which
formed it, by a thing, this oonstitutton, estab-
lished by the ratifications of nine things, oon-
ventions of nine States, by the people of each
aa a StaU.
"These States are constituent parts of the
United States. They are members of one great
empire" ("members of the American eoafed-
eracy," 2 Pet. 312), "for some purposes aor-
ereign. for some purposes eubordinate." I
Mil. 414. The political character of the several
States of this Union, in relation to each other,
is this; "For all national purposes, the States
and the citizens thereof are one; united under
tbe same sovereign authority, and governed by
the same laws. In alt other respects the States
are necessarily foreign to and independent of
each other. "They form a confederated gov-
ernment; yet the several States retain their
individual sovereignties, and with respect to
their municipal regulations, are to eacn other
sovereign." t Pet. 690, fi91; 10 Pet. 676, S. P.;
IS Wh. 334. "The national and State systems
are to be regarded as one whole." 0 Wh. 419.
"In America, the powers of sovereignty are
divided between the government of the Union
snd those of the States. They are eaeh aov-
crc:gn with respect to the objects committed to
It, and neither sovereign with respect to the
objects committed to the other." 4 Wh. 4ia
"The powers of the States depend on thdr
own constitution; the people of every State
had the right to modify and restrain tnem ac-
cording to their own views of policy or princi-
ple, and they remain unaltered and unimpaired,
except so far as they were granted to the mv-
emment of the United States. These deduo-
tions have been positively reeognited by the
tenth amendment." I Wh. MB. "The powers
retained by the States, pro^^ed not from tbe
people of America, but From the people of the
serersl States, and remain after the adoption of
the Constitution what they were before, except
ir as they mav be abridged by that instru-
ment." 4 Wh. 193, S. P.; E Wh. IT, S4; 9
Wb. SOS, SOS. 'In our system, the Legislature
u
Ouoifl AMD Natubi or nu CanniTUTioti
«( m Stkta la tbe auprcnie power; in ill cases
where ft* ftciioo ib not restrmined bj the Con-
■titutjon of the United Slates." 12 Wh, 34T.
"Iti jurisdii^titin is cii-extensive with its terri-
tory, coextensive witli its legisiative power"
(S Wh. 3S7); and "subject to tbia grant of
power, adheres to the territory as aportian of
sovereignty not yet given away." The reaidu-
arj powera of leeislation are atill In the
State. Ib. 38B. "The sovereignty of a State
1ft*] extends to everything 'which existe by
ita own authority, or is introduced by its per-
nilsaloQ." S Wh. 429; 4 Pet. 6U. "The juris-
diction of the nation within Ita own territory,
ia necEsaarily conciusive and absolute; It is
BUBceptible of no limitation not imposed by
Itself. Any restriction upon it derived from an
external source would imply a diminution of
ite sovereignty, to tbe extent of the restrie-
tion, and an investment of that sovereignty to
the same extent in that power which could
ImpOBB EUch restriction. Al\ exceptions, there-
fore, te the full and comptete power of a na-
tion within its own territoricB, must be traoed
up to the consent of the nation Itself. They
can flow from no other legitimate source." j
Cr. 13S.
In comparing these expressions of tbe court
with those of the old Congress, it will be seen
how perfectly they accord with each other in
the use of terms. "The constituent members"
(1 Journ. 61); the "State," from which we
derive our origin (SO); "our fellow subjects in
any part of the empire." (138.) "Societies or
governments, vested with perfect legislatures,
ware formed under charters from the crown,
and an harmonious intercourse was eatablished
between the colonies and the kingdom from
which they derived their origin" (134, Ml):
"We mean not to dissolve that union which
has so long and so happily subsisted between
ua," and have no design "of separating from
Oreat Britain, and establialiing independent
States." (13S.) "The union between.ourinotlier
country and these colonies," etc.; "your loyal
colonists," "doubted not but that they should
be admitted with the rest of the empire," etc.
(140); "the Britiah empire" (141); "the whole
empire" (147, 148) ; "the state of Great
Britain ;" "North America," "wishea most
ardently for a lasllng connection with Great
Britain (US), "America Is aoiaied," etc.
(171.) "The several colonies ot it," etc, (27) -,
"theae colonies;" "the English colonies in
Iforth America ;" "the respective colonies"
11S9, 160); "these his miijesty's colonies."
(2SII.) "The United Colonies of North Amer-
ica." (134.) "The colonies of North America."
(130.) 'The twelve United Colonies." (142, 166,
157.) "Twelve ancient colonics." (149.)
"Twelve united provinces, vii.:" etc. (IS2.)
"Tbe inhslillants and colonies of America."
(163.) "The united colonies of North
America," etc. (IBS.) "A Congress, consisting
of twelve United Colonies, siwembled." (109.)
"The thirteen United Colonies in North Amer-
ica." (203.) "All these are mere names, and
the dlfTerent terms of designation which mesn
the same thing; so as to Ihn name and term
applied to the people of a State, kingdom, em-
pire, or colony.
"The people of America," 'The good people
of the several colonies of North America,"
aU. (2T)i "the inhabitants of," ete. (M): "the
people;" "English eolonuta.* (Ih.) "JmhI-
cans" "The people of Great BiiUin." 'Hhs
Inhabitants of British America" (30, 38, 141.)
"Proprietors of the soil of Amerie*" (37);
"faithful subjects of the co:nniea of Nortk
America" (S3) ; "your faithful people in Amer-
ica;" "your whole peopla" (S7) ; "the good
people of these colonies" (137, 139); "yoar
loyal colonists" (141, 147); "the people of
twelve ancient colonies" (149); '^he people
throughout all these 'provinces and colo- I'll
nies" (168, 170, 264); "the people of thaw
united colonies" (265).
Theae references suflloe to ehow how aaiiies
and terms are used by statesmen and Jndgsa,
by CoDgress, and thia court. It needs no rea-
soning to show that the varied phraseology in
the same political act, or judicial opinion, or b
different ones, at diCFerent times, cannot ehaofe
the thing referred to.
There is no dilHculty in defining a StaU «
nation. It ia a body politic, a political eos-
mnnity, formed by the people within certain
boundaries; who, being separated from all oth-
ers, adopt certain rules for their own govern-
ment, with which no people without their limits
can interfere. The power of each terminates
at the line of separation; each is necessarily
supreme within its own limits; of c iDsequcnec.
neither can have any jurisdiction within the
limits of another without its consent. The
name given to such community, whether state,
nation, power, people, or commonwealth, is
only to denote its locality, as a self-governing
body of men united for their own internal par-
poses, if two or more think proper to unit« Ik
common purposes, and to authorize the exer-
tion of any power over themaelvea, by a body
composed of delegates or ambassadors of end,
they confederate. Each haa the undoubt«d
right of deciding what portion of its own
power it will authorize to be exerted in a meet-
ing, assembly or congress, of all; what it will
restrain, prohibit or qualify. If this can be
done by common consi nt, the terms of their
union are defined, and according to their nat-
ure, they form a mere confederacy of Slates,
or a federal government; the purposi'S and
powers of which depend on the instrument
agreed upon. If they cannot agree, then each
State instructs its delegates according to its
own will, and sends them to tbe body in whiek
all the States are assembled by their deputies:
each State is considered as present, and ita will
expressed by the vote of its delegates. Tbe
CongreRS of States are left, in such cbkc. to per-
form such duties as are enjoined, and execala
such pott'era as are given to them by their re-
spective and varying instructions ; the extent of
which Is testiflrd in the credentiala of the
eejiRiate delegations, as before the eonfedera
tion of ITSl.
It is not necessary to give efficiency t« the
acta of the Congress, that their power be de-
rived from one State, nation, or people; If they
are authorized by each to act within their
boundaries, they can act within smd on tbr
whole; this action of Congress does not make
the States or the people thereof one; they re-
main as distinct as before any eonfederseyi b«t
Congress, acting as the common legislatun •(
each, for specified purposes, its laws opu^to in
and over each SUte, h State lawa do for State
B«Hlwt»
imrpnMa. The powar exerciMd it derived from
the same peo^ile, who distribute ii lielwecn
tKo goveramenis, *a tliey maj think most
ductve to the nclfare of each and utl; the
chiner; ia simple, one moving perpetual power
direct* two machines, which will opirrate in
hajmuDf, b; the linea of Kcparatiiin. drawn by
the aame band. But if the line and rule are
placed in one hand, guided by a master spirit,
17*] with controlling power over 'thirteen sub-
Oldinate ones; the one dtfclarei what are fed-
•rkl purposes, delegntm faJeral powers, re-
■tricts States, and prohibits State laws, b; its
■ingle sovereign powt:r, and as to its own will
And pUasure shall seem fit. The lines of sepa-
ration between the Slates ai-e elTacedj the pco-
tie of all are "compounded into one mass,"
■Ting such supreme power as tbej may choose
to assume; leaving the States and people in
tiieir distinct capacitien, on!^' that portion of
sovereignty which remained in them, after the
paramount power had taken to itself all it
wanted, and had denied to the governments of
the Slate the exercise of such powers as the
Kovernment of the Union could not use; annul-
ung or restraining them, according to the su-
preme law, which was competent to effect
whatever it ordained.
If such was the power which created the
Coustitulion, then our federal system is like th'.-
•olar; one sun. with as many planets as there
•re "the several States, which may be included
within this Union;" with both eyatems alike
ereated and put in motion by an invisible, in-
eomprahenHible, but almighty power, behind
ftnd beyond them both, which can regulate and
control the movements of all at its sovereiini
will.
Such a political creation may be a sublime
eonception; present "the august spectacle of
ka ibSsemblagG of a whole people, by their rep-
reaentatives in conventioni" "conscious of the
plentitude of their own proper sovereignty, de-
claring with becoming dignity; we, the people
of the United States, do ordain and establish
this Constitution for the United Statea of
America." Vide 12 Wb, 3&4; 2 Dall. 471.
There la no American, who, in looking to
the blessings which the establishment of the
Constitution has dilTused over the whole Union.
can repress those feelings which, like an insnlr-
ation, carry the mind beyond the regions of fact
to those of fancy and imagination; and no man
more than the flrst, and the late Chief Justice
of this court would give way to the effusions
at their patriotism, when contemplating the
gloriouB results of the happy consummation of
K revolution In which one had devoted his time
Knd lalKirs to hi* country, and the other pledged
hi* life for her defense. Yet, when we descend
from fancy to fact, look to the convention in
which the people did assemble, how they acted,
what they did, the work which came finished
-And perfect from their hands, and the scenes
of action ; there is indeed a moial grandeur
and sublimity in the whnle, which Impresses
tt*«lf on the mind with irresistible force.
Cool reflection, however, corrects the imprea-
■tona of enthusiasm, reason and judj^ment oon-
caning with more exciting impulses, convince
na that, though the occasion and the act were
of imposing grandeur and dignity, auguat in
eeatAmplation, and aubllme In tta beae¢
MB CxraEo STAnt».
1«
' results; yet, like the Constitution, and Ita b
' ex[>ositor, that these impressioBS are b'
on the mind by the simplicity rather thma uw
sp lend Of of exhibition.
*Ths Adoption of the Constitution. ['It
Twelve States met in convention by their
separate delegations, to digest, reduce to form,
and submit to a congress uf the States, a frame
of government for such of the States as should,
in conventions of the State, ratify it as their
act: the frame was made, it proposed the insti-
tution of a government between the States who
should adopt it, nine of whom were declared
competent. These separate conventions were
not to be like the peneral oonvention, composed
of members appointed by State legislatures,
with power only to propose an act to them as
their constituents, and through them to the
people of the State. To the propoaed act was
prefaced a declaration that it was to be the act
of the people, and a constitution for a govern-
ment, such as it delineated. So It was submit-
ted to Congress, and by them to each State
Legislature, who called conventions of dele-
gates elected by the people of each State; nin«
of these conventions separately ratified the act|
in the name of the people who bad authorized
it; end thus the proposed frame of government
was established as a Constitution for those nine
States who then composed "The United States
of America;" and between themselves only.
The declaration, in its front, therefore, neces-
sarily refers, not to the time when it was pro-
posed, but nhen it was ordained and estab-
li^ed, by "the ratifleation of the e
people of the United States (which have rati-
Bed) do ordain (by our separate ratifications)
this Constitution," for (the States, and between
the States so ratifying the same, who are there-
by] "The United blates af America."
Here is simplicity of movement and plain-
ness in delineating, by whom, for whom the
act was done, and what the sot was when or-
dained. Alt history proves, and all opinions
agree that it was in this way that the rieat
work was accomplished in fart, and if so.
there was no other way in which it could have
been done; no reasoning can reverse the fact,
or ingenuity make the art of nine distinct
bodies of people the act of one, in wham all
the power exerted was previously vested.
Bow it may be in theory, is not material;
but taking the Constitution as the creation of
a competent power, existing and acting prac-
tically, and not one ideal and imaginary, oper-
ating only by theory; I find in the fifth article,
and the tenth and eleventh amendments, ex-
presa provision* which point to the true source
'power from which it emanated.
Every part of the Constitution may b«
amended save one, without invoking the power
of the whole people, or all the States; the
amending power is in "the legislatures of three
fourths of the State*," or by convention* of
three fourth* thereof, "aa the one or other
mode muy be proposed bv Congress." It de-
pends on the number of the States, when each
acts by its legislative power; and the majority
of the delegates of the people In convention at
each State, when it act* by Ita people, not »
majority of the tMooIe of alL
D Natubie or THE CoHBTiTirnoii
It*] *Tbe tenth amendTnent excepts rrom the
Constitution, kod rencrvea "to the States re-
•pecUvely, or the people." all powen not dele-
gated or prohibited. The eleventh amendment
•nnulB a juriMliction expreulj granted to the
Judicial power, bj the third article of the Con-
•titution, bf prohibiting it* exercise in suiti
against a State, by individuals, it operates on
■nits pending, and n . !;e8 void the exercise
of any judicial ).ower in such cases, either
rst, present, or future. 3 Dallas, 3S2, 3B3;
Wh. 405, to 400, B. P.; K Wh. 2oe, 21B, 868;
12 Wh. 438; B Pet. 310, 741.
When, then, it is undeniable that there Is be-
btnd the Constitution a power which can, b;
uneadments, erect a new structure of govern-
ment; revoke the grant of anj of the powers ol
Congress; remove the restrietions on the
States; make eieeptions to the grant, and res-
ervations out of it, of what would lie otherwise
included in It; and annul the judicial power,
Id cases on which the; were actuall}' exercising
an undoubted constitutional jurisdietinn; it far
■eemed to me that tfae judicial eje could easi!
see, and the judicial mind fully understand,
what, and where was that power, which for-
bade this court to move; and which it felt
bound to obe;, when the Constitution anthor-
laed them to proceed to judgment, as the right
and law of the case should appear.
It is no imaginary power that can arrest
Judicial arm, or a subordinate power that
If Its own authority, avoid the exercise of that
judicial power over itself, which has tieen
granted by a paramount power. Nor can
absolute sovereignty of the nation, which
when the Constitution was adopted," was "in
the people of the nation," be controlled by the
"rMlduary sovereignty" of three fourths of the
States, in the people thereof, when the amend-
ments were made. That sovereignty which can
eontrol all others must be absolute: that which
ii controlled must be subordinate. If it is said
that the Constitution authorized this amend-
IDent, we ahould Impute little of wisdom, fore-
^ght, or common prudence, to those who
framed or adopted it, by ascribing its creation
to a power so indifferent to its preservation; or
to make three fourths of the States competent
to throw off the shackles on their laws, nrhich
ail the States, and the whole people thereof,
bad imposed. There cannot, therefore, be. In
my opinion, a proposition more hostile to the
provisions of the fifth article, and these amend-
ments as understood by this court, than that
the Constitution was a creation of the whole
people of the United States, in their aggregate
eolMctlve capacity; as the one people, of one
nation or State, acting by the plenary sover-
eignty, and in the unity of absolute political
iMwer. In thus viewing this amendment, aa to
''the feature" which It thus expuneed, I use It
■a this court does: "This feature la no longer
found In the Constitution; but It aids In the
eonatnietion of those clauses with which it was
originally connected" S Cr. 136. Independ-
ently of these considerations, there ts another
which arises from the relati ;e condition of the
States as to extent and population; to which
we must refer for the discovery of the Inten-
tion of those who have left ns a work "designed
10*1 for Immortality." S Wh. 88T, ""We can-
not look back to the blstoir of tha times, wlm
representation among
lade by the Conatitn-
(12 Wh. 354} the general conventtcn aaaes-
bled, without the conviction that the framen
of the Constitution would naturally examine
the state of things existing at the time; and
their work suSiciently attests that they did so,'
6 Wh. 416. By a reference to this work, and
the practical effects of its operation to the
present time, we can, I think, ascertain fron
whose hands it has come to us to be expounded
by its objects and intentions.
The Practieal Bffaota and Operation «f th*
Constitution.
The apportionment of r
the States, which v
tion, was with a reference to the Congreaa of
the Revolution (1 Joun. 163) of the whole
number— eS; the six largest States had 43; th*
remaining seven only 22; and the Constitutioa
could be adopted by nine States having thirty-
three representatives. When In 17B0 the gov-
ernment was organized, there were only eleven
States with BS representatives; of which four
States had 32 and the other seven only 27; yet
they could elect a President, and had a major-
ity of votes in the Senate: so that a minority
of the people of the United States, had the
operative power of two branches of the govern-
ment; and could make the third, in which ths
majority was represented, either subservient to
their will, or Incapable of acting in opposition
to It.
The President and sixteen senatore, repre-
senting eight States, and a population entitled
only to twenty- five representatives, could exer-
cise the treaty-making power; and the I^vtl-
dent and twelve senators, from States entitled
only to aiaeteen rcjiresentatlves, could appoint
all the executive, military, and judicial officer!
of the government; overruling five States enti- ,
tied to thirty-nine representatives: whereby all
offices could be filled, and treaties made the su-
preme law of the land. In defiance of the wIU
of a majority of the people and their repre-
sentatives, estimating the population of 1781
by that of 1T90.
Under the first census of 1790, tbo free whita
population of the thirteen States was 3,100,000;
of which Massachusetts had 460,000; New
York, 314/M)0; Pennsylvania, 424,000; and Vii^
ginia (and Kentucky) 503,000; making 1,710,-
000; leaving 1,390,000 to the other nine Statea.
These four States had S6 member* In the Houaa
of Representatives, the other States 47; they
had a votes in the Senate, the other Statea 18;
they had M votes for President, the otbw
States OB. Nine Statea, with a white popnla-
tlon of 1,390,000, could dissolve the old eoa-
federation, establish the new Constitution, and
throw out of the Union four States containin|
1,700,000, or could eontrol them If they beeama
parties to It.
Was this a government of a majority of tb>
Constitutton for the United SUtea of AwiK'
car
At the census of 1800, there wer« aixt««*
States; the whole white populatian of whliA
was 4,247,000; these four States, esoluslv* at
Kentucky '(taken from Vhrginia), eon- [*S1
talned 2,£at,00D, the other twelve eont^Md ^
021,0001 Uieaa fonr Statea bad 74 rotea in th*
un> GovBBnuDtT oi
HouM, 8 In the SenaU, uid 82 for PreBldml;
the other twelve Statei luul ST vote* In the
Hona^ 24 in the Senate, and Bl for President;
the minority. In effect, controlling erery hranch
of the government, and competent to amend the
Constitution. What became, then, ol the gov-
ernment of the majority of Uie free white pop-
ulation, composing the people of the United
BUtesI
At the eeneus of 1810, there were leventeen
Statea, with a white population of 6,7a3,OOOi
of which, these States contained 2,1M8,0O0, the
other thirteen contained 2,717,000; theae four
States had 93 votes in the House, 8 in the Sen-
ate, and 101 for President; the other thirteen
States had SB votes in the House, 26 in the
Senate, and 114 for President, the minority of
the people still controlling.
At the census of 1820, there were twentj-
four State*, the white population 7,856,000; the
four States, with Maine (taken from Masaachu-
■etU) and Kentucky, contained 4,199,000; the
other eighteen contained 3,GS7,000; the six
Btates having 114 votes in the House, 12 in the
Benate, and 12B for Preaidenti the other eight-
een States had 63 votes in the House, 30 in the
Senate, and 135 lor Praaident — the minority
■till ascendant.
In 1S30, the entire white population was 10,-
846,000, of which, these six States contained
£,£36,000; the other eighteen States, including
the territories, G,311J)00; the six States have
124 votes in the House, 12 in the Senate, and
136 for President; the other 16 States have 117
in the House, 38 in the Senate, and 153 for
Prasident.
It thus appears that from the year 1700 till
thia time, tne four States of Maaeachuaetti,
New York, Pennsylvania, and Virginia, have
contained within their original boundaries, a
majority of the whole people of the United
States; yet such is the structure of the govern-
meat, that there ia no one act which cuuld be
cITected by such majorit;^-
Adding to the free white population of these
States according to the last census and their
present boundaries, that of Ohio and Tennessee,
tlie six States contain e,0l'0,(}0a; the other
eighteen States 4,S4S,000, leaving a majority
in the six States of 1,444,000; which may be
found to be perfectly passive for all purposes,
•zoept repreaentation, in the House of Kepre-
■cntativea. There are nine States which oon-
tsin in all only 1,346,000 free inhabitants,
which can defeat a treaty, impeachment, prop-
ooition to amend the Constitution, or the pas-
Mige of a law, without the approbation of the
President, against the wit) ol fifteen States,
containing a majority of the 8,148,000 of the
people of the United States, in the aggregate.
Thirteen Btates, with a population of 2,604,300,
can elect a President in the last reaort, in op-
position to eleven SUtea, with 8,232,000. Con-
gresa la bound to eall a convention to amend
the Conatitution, on the application of the leg-
lalatnree of two thirds of Statea, whose popula-
tion ia only 3,546,000, lees than one third of the
rnggrtntt of all the States: and amendments
nay be adopted by eighteen States, in opposi-
tioB to an aggregate majority of 1,444,000; one
MF whtcb amendments might ^ve the smallest
al*] State, ■an equality of suffra^ in the
HooM of BepraMntativea, sad la voting for a
t Uitmo SraTO.
21
President by electors. Seven State*, with B
white population of only 812,000, may defeat
any constitutional Hmendment; though It might
be called for by the residue of the people of the
Union, amounting to 9,924,000; ao that a mi-
nority may force on a majority a new govern-
ment; and leas than one thirteenth of the
people of the United States in the aggregate,
may continue the present without any change
whatever, though the reasons which call for
an alteration may be most imperative for the
good of the whole.
There are but two meaiu of changing these
results from the present or^niiatton of the
govci-nment—one is the divialon of the large,
or the junction of amall States into new one*;
and the other, by giving them a representation
in the Senate in proportion to their numbers.
But the Conatitution has placed both bevond
the power of any majority of the people, now-
Bver preponderating; unless by a majority of
the States In the one, and by all in the second
"New States may be admitted by the Con-
grcaa into this Union, but no new State ahall be
formed or erected within the juriadiction of any
other State, nor any State be formed by the
junction of two or more States or parts of
Statea, without the consent of the Legialature
of the States concerned, as well aa of the Con-
gress." 4 art. sec. 3, clause 1.
The aenatora of any thirteen States can pre-
vent the admisaioD of any new Statea or the
junction of old ones; this can be remedied only
by an amendment, which seven States can
The fifth article, providing for amending the
Constitution, contains this proviso: "and that
no Slate without Ite consent shall be deprived
of its equal suffrage in the Senate." Thua the
Irrevocable, irrepealable aupreme law of the
land, has made Delaware, with an aggregate
population of 77,000, the peer of New York in
the Senate, with her 2,000,000; and ahe may
hold her rights in deflanee of the constitutional
power of twenty-three States, with an aggre-
gate population of 12,789,000; equal to 160 t«
1; in federal numbers, 166 to ti and in free
population, 147 to 1.
How contemptible are mere numbers, or
majorities of tlie people, In comparison with
the righta of States, by the standard of the
Conatitution I
The basis of representation, composed of
people and property, mixed into the constituent
body of federal members, Wds irresistibly to
the character of the government. The inevi-
table effect of making five slaves equal to three
freemen ia to take power from a majority of
the people: so long as this apportionment of
representation among the States continues, a
minority of the people of the United State* In
the aggregate, may elect a majority of the
members of the House of Representatives; and
the conventions or legislatures of seven of the
slave-holding States, can perpetuate this stats
of things.
The genersl result of the last eenans. Includ-
ing the Diatrlet of Columbia and the territorisa,
U: aggregate population, 12,856,000; slaves, S,-
010,000; federal numbera, 12,052,000; free peo-
ple, 10,846,000; 'slaves represented, 1,- [*■!
208,000 i thns, tbe represenUtlon of tlu State*
Omaoi 4IID Natvw o
In irblcb they are owned li Incmaed hy the ad-
dition of twentj-geven mpmbera; U a leprcsen-
tation of an actual mfnority of the free people;
and though the minority, they may contra!
•ven this branch of the government, by a ma-
jority equal to the slave representatfon.
These reaulta are not the elTect of accident;
tbey must have been toreeeen at the adoption
of the Constitution, unless it was anticipated
that the population of the States would M in
an inverse ratio to their territory.
In 1788, the whole territory of the thirteen
States contained about 600,000 xquare miles; of
which there was comprehended In the bound-
aries of Virginia and Kentucky, then one State,
103,000; in North Carolina, including Tennes-
Nt, 84,000; and In Georgia, Including Missis-
sippi and Alabama, 163,000: in the aggregate,
S40.000. The other ten States Included only
197,000, adding the territory ceded by Virginia
and New York, now compoeing the States of
Ohio, Indiana, and Illinois, containing 134,000;
kll that was In possession of the confedsraey or
the States, was 040,000 square miles; of which
three States hod more than one half, while
three others had no more than one eighth part;
two of which had only the one hundred and
ninety- third, and one only the four hundredth
ifet this enomioua disparity of territory has
BO more eScct on the equality of a State with
kny other now, nor hereafter can have without
its consent, than the disparity of population.
Rhode Island, with 1360 square miles of terri-
tory. Is the peer of Virginia, with 64,000. Dei-
aware is the equal of New York, though their
population Is most enormously disproportion-
ate. The rights of these States are emphatical-
ly the rights of a minority of the people; and
a government which can be organized, admin-
istered, and reorganited, by a minority, whose
Erer is expressly guarantied against any ma-
ty of Stales or people, cannot be any other
n a "federal government of these States."
There can be no political absurditT more
palpable than that which results from the theo-
ry that the people of the United States, as one
people, have instituted a government of the
people; a majority (of the people) government;
or one which can be altered by the majority:
tor that majority has no one right, can do no
one act under the Constitution, or prevent such
amendments as would expunge every semblance
of a popular feature from it, by reducing New
York to an equality with Delaware m the
Houee of Representatives, and In voting for
President; these being the only particulars in
which the people of the largest have any more
right than those of the smallest States. Nor is
there a political truth more apparent from the
' bills of rights in the constitutions of the sev-
eral States; their unanimous declaration Id
CongKSS, In October, 1774, and July, 1776; their
klliauM with France in 1778; with each other
tn 17S1; and the supreme law of 1788, estab-
Hihed by the people of each, between them-
adves, a* each sovereign ; than that the Dovem-
ment whieb thaj have brought Into existence,
is a creature of the people of the several States,
t4*] a 'lovemment of a majority of the
States; w£l(A may be in all ita departments,
kBd wholfl aotloi, administered by the repra-
'eatatlTea of tke minority of the people of the
Inlted Htatas: and obBnimd In Ita whala oTBanl-
the right I
!, by toe eqi
State was necessary to any alteration.
The principle that a majority of States,
of the people of the Uoited States, or of either,
in any unity of political character, could, in any
stage of our history, alter, abolish the old, or
institute a new government, is utterly witlrout
any sanction in the acts of the States or
Congress. States were units, who could in-
part or withdraw power at their pleasure, nuUl
they made an expreas delegation to Gongresa
by the league of IT8I; each StaU had lU
option to become a party to the compact, Cod-
stltuCion or ^nt, made In 1788, by nme States,
or to remain a free, sovereign, independent
State, nation or power, foreign to the new
Union, after the old was dissolved.
By becoming s^arate parties, they did not
devest themselves of their Individual unity of
character; they remain units as to repreaanta-
tion, and as units, reserve all powers not dele-
gate] or prohibited: and the ultimBte power of
revoking all parts but one of the grant, with
the concurrence of three fourths of their aaao-
clstes, and modifying it at their pleasure.
This is the essenoe of supreme and sovereign
Kwer, which testifies that the ultimate abao^
te sovereignty la Id '^be several Statea," and
the people thereof, who can do by liAennt
right and power, anything in relation to the
Constitution or change of government, exeept
depriving the smallest State of Its equal suf-
frage in the Senate; not In the United BUtes,
or the people thereof, as one nation, or soe
people, who In their unity of character or
power, can do nothing either by Inherent right
or by representation, as a majority.
The power which can rightfully exercise acts
of supreme absolute sovereignty. Is the sov-
ereign power of a State; no body or power,
which can neither move or act can be iovereign:
it exists constitutionally, but as matter inca-
pable of either. The soil of the United Statsi
is as much the source of political power as Ita
aggregate population. Until the power whidi
can establish government Is brought into aetioa,
and designates the one or the other as the baaii
of representation or taxation, each is a perfect
dead body; and both are perfectly so hj the
Constitution, In reference to the United States
In the aggregate or as one nation. But in
reference to the States, both the land and tke
population, within their separate boundarlea,
are brought into operation ; its federal numbsn
are made the stock from which representathn
arises, and become represented by tne action ef
the qualified electors of the State; and the land
in the State Is assessed with taxation, by tbs
same ratio as its representation is apportioned;
*by which and produces revenue, in the [*■>
same proportion as population prodnoea repn-
sentation.
This rule la perfectly ari)ItrarT, belnf tbe re-
aalt of a compromise: the people of tha State*
could base representation on property or peo-
Ete; they could select either, or a proportion a(
ntb. and tha kind nf althar: aad thrM fourthl
> OommiBT or tu Vrnnn Sum.
•f tha SUtc* or people thenof, cmi bow ehange
the proportion, hj ezeludjog bIbvm ftltogetber,
^umualing them m MKh » tntvamn, or aub-
itituting *tkj other spedee of property tluui
Representation b7 numbers is not bj Mitural
right: slavei have neither political rights or
powcrj it ia hj compact, the will and pleasun
of the Stales who have ao ordained it, aa aepa-
ntte sovereigns; and in doina; aOp haTe shown
in whom the supreme power u rested, and vet
remain* to be excrolMd in the future, aa it has
lieen in the past.
The institution of the federal goreinment is
jeciaiTe of the question. It ahowB the creature
and the creator; the power which has made and
can unmake the machine it lias set in motion,
U the work of its own bands, moTing within
defined limits, operating only on speciSed sub-
jeets, b; delegated authority, revocable at will
The act of delegation ia the eierciee of sov-
ereignty, and acting under it is a recognition of
ite supremacy: it ma^ be without limitation in
•ome eases, and until revoked it ma; be su-
firemei but it is so only as a delegated author-
ty or agency — the right to revoke, and render
ite exercise a nullity, is the test by which to
fttcertain in wtiom it ia vested by original in-
herent right.
Men are not less free when they unite and
form society out of its original elemente, into a
body politic for the mutual safety and happi-
neaa of the parts, by a government inatituted
for alL
Less or more iiodies politic may unite In thsir
■aparate character for the same purposes, and
agree that the power of each shall be admiu-
iatered by one or more bodlee, whom they shall
■^wrately authorice to act in their name, and
for their benefit, without a surrender or ex-
tinguish ment of their sovereign character or
attributes. When it is adopted voluntarily by
«ach as an unit, the only effect is to create and
•rect a new body politic or corporation, by a
charter or grant by the sovereign power of
each. It may be declared revocable by each,
by three fourths, or require the aatent of all, as
by the confederation ; yet as this is a matter of
compact, it does not affect the nature of the
ultimate sovereign power, which they separate-
ly reserve.
Tboa, the Constitution itself, gives an in-
delible stamp of character to the government
ii created. It is what all confederated or
fadera] governments are, and from their nature
nust be, formed hy the union of two or more
States or nations, on an equal footing, by the
act of federation! a league, alliance, or Con-
stitution, is the act of each constituent part;
acting in the plentitude of its own separate
■OTflreignty, it executes the act, which dele-
gates to a body in which each is separately
represented, such powers, as they thus agree,
are necessary for their federative purposes,
S«*] with such restraints on their 'several
powers s« will prevent tlie objecte €d the fed-
eration from being defeated.
The Conneetlon between the Colonies and
England— its Dissolution, aid the Sffeet
Thereof.
Tha statesmen of the eolonles eould not mis-
talw the govenment under which tbej lived;
the abaolBte Borcroigiity of the country waa In
vincfal govemmenta were created by chan
granted in virtue of royal prerogative, not by
acta of parliament. 'The British government,
which was then our government," etsimcd the
whole territory by right of discovery and con-
quest (8 Wh. GS8, ante et post); the right of
the king to legislate over a conquered country
waa never denied in Westniinstcr Hall or ques-
tioned in Parliament. Cowii. 204, 20, 13; 0 Pet.
T4S. Hence be may, by nis grant by letters
patent or charter, authorize the exercise of leg-
islative power, by a government crented In a
colony, or the proprietary of a province; and
letters patent will be presumed from prescrip-
tion, when a territory has been long possessed,
and the powers of government exercised with
the assent and approbation of the crown,
though none were in fact ever granted; as waa
the esse of the three counties now oom posing
the State of Delaware. 1 Vea. Br. 446; Penn v.
Baltimore, Chalmers, 00, 40, 41.
No federal connection did or could exist be-
tween the mother country and the colonies, oi
betvtern them, conaiatentty with the conatitu-
tion of England, whereby Parliament waa thf
controlling government over them by their owe
consent. The oolonies could establish a fed-
eral government over themselves, when the
power of Great Britain over them became ex-
tinct by the Revolution; but neither they or
the States entered into any act of feJoralloii
till 17S1; neither their separate or unanimous
declaration of independence, created or an-
nounced the existence of auch political relation
between them. They declared what was their
then political situation, consequent upon the
cessation of their allegiance to the king, and
the dissolution of all connection between them
and "the State of Great Britain," by the acta
act forth, one of which was, "Ue has abdicated
government here, by declaring us out of his
protection, and waging war upon us. We muat
therefore acquiesce in the neccasity which de-
nounces our separation, and hold thein aa we
do the rest of mankind, enemies in war, in
peace, frienda.'
A reference to the prior declarations of tha
Congress, will elucidate this. In October, 1774,
they declared among other rights that they
"were entitled to all privileges and immunities,
granted by charter, or aecured by their several
codes of provincial laws;" "which cannot b«
taken from them, altered or abridged, without
their own consent, by their representatives ia
their several provincial legialaturea." 1 Jonm.
28, 29.
In their petitions to the king, at the saioa
time, they state their objects; "We ask but
for peace, lilieriy and safety; we wish not a
diminution of the prerogative, nor do we soIMt
the grant of any new *right in our favor. {'II
Your royal authority over us, and our eoimeo-
tion with Great Britain, we shall always care-
fully and zealously endeavor to anpport and
maintain." 66.
In July, 1TT6, thsy declared that "aoeietiM
or governments, vested with perfect legisla-
tures, were formed under charter from tiM
crown," (134.) After sUting the causes whieli
induced them to take up arms against the king,
they proceed, "We mean not to dissolve that
Union subsisting between ua and our fellow
subjaeta in the empire. Necessity haa not
Otiam AMD Natou or tbe CoiiniTinias
driTen na Into that ieaptmXt nwamm, or in-
duced ua to excite any other nation to war
against them. We have not raised armies with
■mbitioUB designs of separating fiom Great
Britain, and eetabliahins Independent Stataa."
las.
In their letter to tbe Bfx Nations of Indiana,
ther nae a term peGuliarl; appropriate to a
declaration of independenoe ; ''You, Indians,
know how things are proportioned in a family
— between the father and tile >on — the child
carries a little pack. England, we regard aa
the father — thb island may be compared to the
■on. Tbe pack is increHsedj the boy aweata
and staggers under the increased load, and
asks tbat it may be lightened; aska If any of
the fathers in any of their recorda, had da-
scribed such a pack for a child ; ba Is ready to
fall every moment; but after all bis eriea and
entreaties, the pack is redoubled; yet no roice
from his father is beard. "He therefore gives
one struggle and throws off the pack; and says
he cannot take it up again." "This may serve
to illustrate the present condition of tbe klne's
American subjects or children." 136. The
language is plain, but very easily understood.
In December, 1776, they disavow any alle-
giance to Parliauient, but avow It to be due to
tbe king; and deny that they have opposed
any of the Just prerogatives of the crown, or
any legal exertion of those prerogatives. 263.
Their petition to the king In 1774, taken in
connection with this declaration, shows the
precise ground assumed in 1774, and retained
till, in the final struggle, this pack was thrown
off by tbe boy. "We know of no laws bind-
ing on us, but such as have been transmitted
to us by our ancestors; and such as have been
consented to by ourselves, or our representa-
tives, elected for that purpose. We, therefore,
in tbe name of the people of these United Col-
tmies. and by authority, according to the pur-
eat maxims of representation derived from
them, declare, that whatever punishment," etc
204, 205. Had the Congress then declared,
what they did afterwards, the only pack they
ever acknowledged to have been constitution-
ally imposed on them (the prerogative of the
crown and consequent allegiance to the king)
would have been thrown off, and the boy be-
eomea a freeman. This was done in effect, ou
the IStb of May, 1770, when Congreaa resolved
that "it is necessary that the ezereiae of every
kind of authority under tbe said crown should
be totally suppressed, and all the ^wen of
government exerted under tbe authonty of the
people of tbe ootoniea." 2 Joum. 108. This
resolution was a preamble to the resolution of
the loth, recommending to the respective aa-
aembllea and conventions of tbe United Col-
SB*] onies, *to adopt governments for them-
eelves (16S), taken with the original resolution,
aa agreed to on the 2d of July, aa follows;
Resolved, "That these United Colonies are.
glance to tbe British crown; and that all politi-
cal connection between them and Che state of
Qreat Britain is, and ought to be, totally dla-
aolved." 2 Jouiti. 227. It may well be asked.
In tbe words of Congress, in December preced-
ing, "Why all this ambiguity and obscurity, in
what ou^t to be so plain and obvious, aa that
he who runs nay read." "What aDaglanee la H
that we forget T Allegiance to Parliament t
We never owed, we never owned It. Allegiance
to our klngt Uur words have ever avoirad it;
our conduct haa ever been consistent with it.'
1 Joum. 2SS.
Now, it Is very Immaterial what fonn of a
declaration was adopted two days afterwards,
when Consreaa, for a fourth time, declared the
rlgbta and wrongs of the colonies, and their
artual condition after an open annunciation of
aa existing war between the king and state of
Qreat Britain and these United Colonies, tkea
indepandent Btatea.
Tbe Declaration of Independenca.
It was announcing what had been done, and
the eausea for doing it, and must be taken ta
have been done on the principles declared from
tbe beginning of the eomplamts and struggisa
of the colonists to throw off tbe pack; It
declared the pack removed, and tbe boya frae-
The result was obvious, and was so declared,
"^he thirteen colonies of Qreat Britain" there-
by became "the thirteen United States ol
America;" connected In a war for their de-
fense, but not confederated by a government,
to make laws for, or to put a pack on them.
A comparison of this declaration, with tbe
oonnter declaration of Parliament, as contained
in I Bl. Com, lOS (a book then in quite aa
familiar use as now, and that was evidently
under the eyes of Congress at the time) will
show their meaning: 'That all his majesty's
colonies and plantations in America, hava
been, are, and of right ought to be, subordi-
nate to and dependent upon the Imperial crown
and Parliament of Great Britain." Congress
declared that "these colonies are, and of right
ought to be, free and independent States."
Not all bis majesty's colonies in America, for
Canada and Nova Scotia were no parties to the
declaration; not that these colonies had been
free, for they admitted they bad been depend-
ent, and the people had been tbe loyal and
faithful subjects of the king; hence the words
were appropriate. "These colonies (now) are,
and of right, ought to be, not subordinate and
dependent, but free and independent States.'
The same author drflned whst "the state of
Great Britain" was, "A state, a realm, a
nation, an empire;" the supreme head whereof
is "the king; inferior to, accountable to, and
dependent on no man upon earth;" "as sov-
ereign and independent within these his domia-
lons as any emperor is in bia empire" (the im-
perial dignity, 1 Joum. 65), ''and owes no sub-
jection to any potentate 'upon earth" (1 [*l*
BI, Com, 242), or, in tbe language of this
court, "a single sovereign power." 0 Cr, 13S.
The transition was from tnis condition of a
colony to that of s State; from subordinatioii
to freedom; from dependence to independence.
Tbe declaration in Its front was by the thirteen
States who had been colonies, were then wbat
they were declared to be; and the name and
style of each was separately aflixed at the foot.
as united by the style of the United States of
America, aa they had been since 1774, by that
of the United Coloniea, etc.
Their separata independence was proelaimed.
and they remained towards eaoh other as they
■ OomiwKRT or taw Urttsd Srina.
*«M befon, aa oolonlM, and then u State*;
they did not alt«r th«ir reUtiona: the uime del-
•gatra from the eoloniei acted u the represen-
tatives of the States; so deelared thenuelTes,
and continued their seBsion without new cre-
dentials. The appointing power being the
•ame, the Hcparate Legislature of each State as
a Stat«, nation, or euipiro; the people, the eu
preme bead, ae the king, the emperor, the mt
These colonies were not declared to be free
and Independent States bjr substituting Con-
Eee* in the place of king and Parliament nor
' the people of the Statei, transferring to the
United States, that allegiance they had owed to
tha crown; or malcing with the State, or na-
tion of the United States a political connection^
rimilar to that which had existed with the
Bute of Great Britain.
A Slate, to be free, niuet be exempt from all
•Xtema! control, on a "separate and equal «ta-
tion with the other power* of the earth;" with-
in whose territorial limits, no State or nation
can have any jurisdiction: thie is ol the essence
of freedom, and being free, in the grant and
■olute aoverpLgnty, iitimilable, save b^ the peo-
ple theniBelvca. Suth was the situation of the
States and people, from 1776 till 17B1, when the
•everal State legislatures made an act of fed-
eration, as allied sovereigns, which was only a
league or alliance; and being utterly defective,
was substituted by a new act of federation — a
eonititution, ordained by the people of the sev-
eral States, in their primary inherent right and
power, existing in tnemselves before any por-
tion of its sovereignty had been impaired by
kny act of federation or any severance from its
tenritorial boundary.
Bo taking the power which ordained the Con-
•titutioD, it can be traced in all its provisions
mod amendments, in perfect oonsistency with
Its preamble and mode of adoption; tt i* the
same power which was exercised by the people
of the colonic*, when they aboliuhed the royal
govemmrrnte and established new ones by their
«wn authority as State*; and by which they
ftbotished the confederation and ordained the
Constitution. Viewed in all Its bearing, as a
grant, a charter, conveying and restricting the
SO'] exercise of power, providing for its *own
amendments and the amendments toade pursu-
ant thereto, the people of the several States are
■een in all its movements; their acts are refer-
able to no other power; and the existenoe of
an; autliority, not subordinate to theirs, de-
nnges the wnole system.
When it is so considered, without any theory
but that which is developed in the ^glish sys-
tem of jurisprudence; which, in all Its parts, is
Infused into all our Institutions of government,
tliere ia no difllculty in flnding out its intention
bjr the settled rules of interpretation. We can
■ndvretaDd the federal and State system
In their orig;in, organitation and operation a*
tbe work of the same hand; which, in the hi-
■titution of one government for State purposes
Mparately, and another for tba federal pur-
• boo.
poaea of thirteen united or eoofoderated State*,
has acted in separate bodies; and can ascertain
what It has granted, how far it has restrained
itself, and measure the grant by ita exceptloo*
and reservations.
There never has been or can be any difference
of opinion as to the mtaning of the ordaining
parts of the eonstitutioo in the terms, "the
people of the several Stales;" "the several
States which may be included in this Union;"
"each State;" for they do not admit of two
meanings. They refer to those States which,
having ratified the Conatitution, are each a oon-
■tituent part of the United States, composinc
by their union, the United States of Amerlcaj
and to the people of each State, as the peopta
of the United States. When terms are ao del*
nite in the body of an instrument, and one leaa
definite is used in the preamble, which can be
made equally definite by reference, tbe estab*
lished maxim applies — id eertum est quod cer-
tum reddi potest. Let then the term, "we, tha
people of the United States," be referred to the
second section of tbe Brat article, and compared
with the terms, "the people of the several
States;" "the several States which may be in-
eluded within this Union;" tbe sense of both is
identical. So, when we refer the terms to the
seventh article, prescribing the manner of or-
daining and establishing the Constitution, there
is the same Identity of meaning. No other
variance exists between the terms in the pre-
amble and body than exists in other term*
which are varied in form, but are the same in
substance, and used in the same intention; aB,
"each State;" "the several States;" tbe several
States "which may be included within thl*
Union; the United SUtes; the United State*
of America; a Congress of the United State*!
the Congress; Congress," etc. When the vari-
ous parts of an instrument can be made to
harmonize, by referring the supposed doubtful
words of one part to the certain words of an-
other, without doing violence to their appropri-
ate sense; every just rule of construction calls
for such reference as will remove ambiguity, if
the two terms cannot be reconciled, it is a tiiet-
tled rule that the preamble is controlled by tha
enacting part. No case can arise to which
these rules can be more applicable, and there
is no discrepancy between the different terma;
one is less fnll and explicit than tha others, the
name given to the granting power is not it*
substance; the thing i* the power; whenever
'that is clearlT defined, tbe name will be [■>!
made to suit ft. If this term in the preamble
was, by common consent, or the set 11 if d course
of professional and judicial opinion, taken a*
a mere name given to a thing of an agreed de-
terminate nature, it would be a waste of time
to inquire whether the name was appropriate
to the thing; or whether the reasoning, which
make* the action of thirteen distinct bodies, at
BO many different times and places, produce th*
same result, as the action or one on the aam*
object, and may be deemed in legal contempla-
tion the sole action of one body, was meta-
physical or sound ; (or it would be merely a dis-
cussion on words, which would not determine
the sense of the Constitution a* to subatano*
and things. That the States acted in the aama
distinct end separate capacity, in tbe area-
tion of th* government, aa thej did and yet do
Ononi Ain» Hatdik or tbb Omwiitdthw
la tdectfnB tbalr uentB who adminisUr iti
power*, is apparent In the Kventh article, ba-
tore quoted. . ,
ITie mode of action wai by the people of each
State, in conventions of delegates chosen by
Utemselves) the action of the separate conxen-
tioiu being, by their express authority, delega-
ted for the tpecial purpose, was the action of
the people. The grant waa theirs, of their
powerai and thus made it was in perfect har-
mony with alt the provisions in its body, and
as declared in its front, that, "We, the P*jpl«
of the United States, do ordain and eatablish
thU Constitution for the United Stst« of
America." The meaning is clear and plain, by
■ reference to the people of each ol those
States who i«tifled it in convention, and to the
people of the several States who were to elect
Ke representatiTM of the State, in a Congreae
of the United States; the same people P^^'O^^
Ing different functions, the first in creating, the
■econd in orgaaiiing the government of the
States, which had been
; the government
1 thus established be'
tween themselves. ,
In so taking the declaratory part of the m-
stniment, it larmonUes throughout; no »10'
lence is done, or a strained construction put tc
any part; every word baa Its own meaning,
when it is referred to its subject matter of ap-
plication; power flows from its original and
acknowledged fountains, and is distributed by
each depository, among the appropriate agents
for its execution. It is the same power which
had been exerted in the institution of a gov-
ernment for each StaU; was competent to do
30 for the States, which were united by an alli-
ance of mere confederation, without any legia-
lative power in their Congress; by making any
change which an organic power, absolute and
unlimited could effect, and which this court has
often declared it did effect in its exertion by
aeparaU bodies. U it was so taken as settled
doctrine, it would be easy to expound the m-
strument In which this power was exerted, as
a charter or grant, ax v.sceribus suis, the law
at the time it was made, the common, the stat-
ute, and constitutional law of England, the
history and sUta of the times then and before,
the acta of the people, the SUtes, and of Con-
nreBB, in their domestic and foreign reUtions.
in some of which aources there would be found
satisfactory means of its interpretation.
Three of these cases turn on those clauses of
!«•] the Constitution •which restrain the
States; the fourth depends. In my opinion, on
those which are reserved by the tontli "jn™"!^
ment; so that none can be decided without
identifying the power which made the grant,
reatrictiona and reaervations, by an original, in
herent sovereign right, and wliich waa compe-
tent for all these purposes. The preambe de-
clares, that "We, the people of the Unit^
States, etc., do ordain and establtsh this Consti-
tution for the United States of Amenca. That
it was done by the power of the people, and
not of the State legislatures, is universally ad-
mitted; as also that they had the oompeUnt
power to do it. The only queatiem which is
open U, whether thU power waa in the people
oftho separate States, aa separate bodies poli-
tio, or in the whota people of Uie United Btat^a,
•■ OM.
»••
The Opinioiw of the Court Applied to tta
Provision* of the Cnnstilutioit.
Tfais court, as the appropriate tribnnal to
expounding the Constitution, has used vaiioM
terms to express their sense of the teriBjiia
"The people of the United States" (in 1 Wft.
E4). "ihe people of Americ*" (4 Wh. 193).
"The American people" (4 Wh. 403; 6 Wk
877, 381). It is deemed a term of "beeoming
dlsnitv," suited to the solemnity of the occa-
sion and instrument. 2 Dall. 471; 12 Wh.
364. But when they use the term, and de-
scribe how the people acted, and by what acta
the instrument waa adopted, they add Oiii ex-
pression—which one would think was m lan-
guage compr^ensihle and clear, excluding all
construction, and admitting of no twofold
meaning or interpretation! "So political dream-
er was ever wild enough to thmk of breaking
down the lines which separata the BUtea, and
of compounding the American people into one
they act in their States.
loch T. Maryland.
Here i* a deiilaratlon that the organic po'W
was not a compound mass of the people m
their States. Id a subsequent part of twar
opinion they declare that the aame powtf
which eiUblished, is the same which U repre-
sented in, and exercised by Congress, aa well u
what that power is, and in what body politic n
was, is, and of right ought to be. "The people
of all the States, have created the general goT-
emment. and have conferred upon it }lie KO-
eral power of taxation. The people of all t*»
SUtes, and the States themselves, are repre-
sented in CongroBB, and by their representaUvte
this power." 4 Wh. 435. In tb.
„„„ „ae they Ixad explained the difTercaes
between the people of the States, and the SUtes,
or Bute sovereignties. State legislatures, or,
as they afterwards called it, the supreme pow-
er' all meaning the same thing, wlien referred
to the power of the State aa exercised by the
legislatures thereof. 12 Wh. 847; Vide I BL
Com. 147, p. 62.
"To the formation of a league, such a* wu
the confederation, the SUta sovereignties wers
certainly competent. But when in order W
form a more perfect union, it waa daemel
necessary to change the alliance into an eflee-
tive government, possessing great and aovercip
powers, 'and acting directly on the peo- [ H
pie, the necessity of referring it to the pcfF^
and of deriving its powers directly from tM.
was felt and acknowledged by aJl." 4 Wb-
404. In this language there is neither a ""J*^
cal or an erudite meaning, in its dear a>B
conclusive explanations of the two ■?■*«'*
The Congress of the confederation was a bofl*
which conducted the affairs of the league, u»-
der the authority of SUte legislatures onl^^
and as the power could not rise higher than iW
source. Congress could operate only by U»M'
secondary power ; and reach the people only W
requisitions on the Slates, to be enforced bj
State laws. The Congress of the Constitutios,
representing both 'the States" and "the peopM
of the several States," by a grant emanatM(
directly from them, could oparaU on the ftofU
of the State; and carrying Into effect their o«
Uws, oould, without the interrantion of aj
AHs Qoviuiiiiin <w TBI Vtnm BiAsn.
btermedlsle power, executa them ta the full
axtenl of their granted powers.
Let these judicial eiipositiatis b« applied to
tW Conetitution, to aecertuiii by its laiiguage
tbe meaning of the terms "people," "States,"
"repreaenlatioD," "Congreis; takiDS them in
the same order •• the Conatitution aoee, in its
ordaining part'
Art. 1, Bee. 1, "Ail legislative powers here'
mad House of ReprcseulatiTes." Thia ia a def-
inition of the general term "congress," and ita
coaitituent pftrti, whkh an composed aa fol-
Iowb;
Bee. 2. "The House of iteprefteutativM shall
ba composed of members c ho Ben everr second
year, by the people of the several States, uid
the electors in each State shall have the quaiifi-
eationa requisite for the most numerous branch
at the State legislature." This defines the
part* of the one constituent body of tlie Con-
fp-eas, and who shall elect them. The next
clause prescribes the ratio of each State.
Clause 3, "Representativea and direct taxes
■hall be npportioned among the several States
wliieh may be included within this Union, ac-
cording to their retpective numbers; which
■hall be determined by adding to the whole
number of free persons, including those bound
to service for a term of years, and excluding
Indians not taxed — three fifths of alt other per-
■ODS." This defines the basis of representation
to be the federal numbers within the several
StAtes; not the people of the States only, who
elect the representatives of each; they are in-
eluded as free persons, each an unit; but all
other person! are also included, five of whom
e deter
s the
number of members who shall be chosen by
the people of the several States to compose the
House of Represent a ti vet.
"The number of representatives shall not
exceed one for every thirty thousand, but each
State shall have at least one representative!
»nd until such enumeration shall be made, the
State of New Hampshire shall have three," etc.
Thus the members of the House of Re pre -
■entatives, elected by the people of the several
States, according to an enumeration of the re-
S4*]spective 'federal numbers of the several
Statea, are the representatives of the several
SUtes.
Clause 4. "When vacancies happen in the
representation from any State, tne executive
authority thereof shall issue writs of election
to fill such vacaDcj."
The several representatives of the Mveial
BtAt«s, thus compose the representation from
the several States, in the House of Representa-
tlvea, as a constituent of a Congress of the
United States.
Sec 3. "The Senate of the United States
■hall be oompoaed of two senators from each
Stata, chosen by the Legislature thereof, for
aix years; and each senator shall have one
vote." Such aenAtors are therefore the repre-
•entatives of each State, in the Senate, who
Bt€. 4, Clause 2. "Tbe Congreaa shall as-
■amUa at least onoe in every year." Here, then;
w% h»n ■ daOnitlon of tb* body ia whom all
legislative powers granted by the ConstltiiUaii
arc vested: after their meeting it la, "Th«
United States in Congress assembled," the same
as all preceding congrpsses had been termed.
The mode in which the two cunslituent parti
act in their legislative capacity, is by major-
ities, or two thirds of the members, as the case
may be; by the appropriate provisiun, appli-
cable to ell other legislative bodies. Though
they are individually the representatives of tbe
several States, and the meiubers from each
State are its represent at iun in Congress; yet
that body being invested with legislative pow-
ers, authorized to act by majorities of votes,
without any reference to Stotes. as in the old
Congress, it follows that as they niay thus leg-
islate to the full extent of their constitutional
powers, their laws are binding throui;hout the
territory of the States, who are within the
Union. "They serve for all." Vide 1 Al. Coin.
In creating the executive power of the gov-
ernment, the Constitution mtroducea a new
principle in directing buw and by whom the
person who is to hold the office of President
shall be elected; as it is neither by the people
or the States, but by a third bofly, he is the
representative of neither; but the olTicer desig-
nated in the mode prescribed, to perform the
duties enjoined, and execute the puweis con-
ferred on him as an oHicer. The seg^arate and
distinct character of the States is, however,
carried into bis election.
Art. 2, Sec. 1, Clause 2, "Each State shall ap-
point, in such manner aa the Legislature there-
of may direct, a number of electors equal to
the whole number of senators and representa-
tives to which the State may be entitled in the
Congress," etc.
Clause 3. "The electors shell meet in their
respective States, and vote by ballot for a Pres-
ident." Vide 12 Amendment. "And if no
peraon have a niKJority, tlii-u from the five
higlieat on the list the said lluuae (of Repre-
sentatives) shall in like manner choose the
?reside[it; but in choosing the President, the
votes shall be taken by Statea. (he representa-
tion from each State having one vote, etc. (as
in the old Congress of States and colonies. 1
Joum. 11; 1 Laws 14.)
These terms, ■reprcoentation," "representa-
tion from each State," "'having oue [*Sft
vote," are peculiarly delinite, and appropriate
to the apportionment thereof, among the sev-
eral States, who are separately represented fak
the House; another term, equally so to the
Senate, a* composed of two senators from each
State, in a body in which the represeDtation
from the States is the tame in number, ia utwl
in the last clause of the fifth article of the
Constitution relative to amendments: "And
that no State, without its consent, shall be de-
prived of its equal suffrage in the Senate."
Thus far the Constitution delineates the oc-
lative and executive departments of the gove
ment, which enables it to execute all its func-
tioos and powers: it remains only to be seen,
how, and by what power this organization of
uovernment, the distribution and adminiatra-
of its powers, was authorlted and directed.
Art. 7. ^'The ratificatiotis of the c
»8B
Obhih axb Hatch or «
t OtHismtmoR
of bIm Statu ihall be rafflcfent for the letab-
tbhuWDt of this Conititution between the
State* ao ratifying the Bame."
It ii, then, by the separate aotion of the
B(at«H, in conventions of nine States {not of a
convention of nine States) that the grant wa>
made: the act of eight produced no reenlt; but
when the ninth acted, the great work was ef-
fected as between the nine. Until the other
four M acted, the; were no part of the United
States, nor were the people of the nonratify-
ing Statei any part of the people of the United
States, who ordained and establiehed it.
That the term, "ciiuveutions of States,"
meant conventions of detcgatei, elected bj the
people of the several State*, for the exprea*
purpose of assenting or dissenting, to their edop-
tioQ of the proposed Constitution, is admitted
by all; as also that no general convention of
the whole people wae ever convened for any
purpose; and that the members of the eonveii-
iioD which framed it met and acted as States,
eonaented to, and signed it for and in behalf
of the States, whom they respectively reprS'
sented, appeare on its face. It was proposed
to the people of each State separately, and was
•0 ratifled; It existed only between thoae States
whose people had so accepted it. It would,
therefore, moat strangely contradict itself,
throughout all it* provisions, to ao construe the
preamble as to make It a declaration that It
was ordained by any other power than that of
the people of the several Statee, a* distinct
bodies politic, over whom no external power
could be exerted but by their own consent.
These are not only the necessary conclusions
which flow from the plain language and definite
provisions of the Constitution itself, but their
settled interpretation by this court. "From
these oonventions the Constitution derlTcs its
whole authority. The government proceeds
directly from the people, and is ordained and
Mtablisbed In the name of the people." 4 Wh.
403.
If it is asked what people, the answer la at
hand, "A convention of delegates chosen in
each State, by the people thereof, assembled in
their several States." lb. Sup.
■ 0*] *lt was in this mode that "the people
of all the States created the government; it is
ed in the House of Bepresentativea, and the
State* themselves are represented in the Sen-
ate; and both, by their representatives, eier-
oise the legislative powers which are granted
to, and vested In a congress of the United
State*. The government is thus created by the
people; organized by the people and States; its
laws enacted by the representatives of both;
and the executive power vested in a President,
elected by electors appointed by the States,
each a distinct body. The same people perform
both functions; the one creative, the other elec-
the Constitution to the convention of the
people thereof; and when ratified, choosing the
•enaton, and directing the appointment Of
eleetora; all done by the free action of the
people and States, by their own internal power,
Whta the creation and structure of the govem-
-<ient ara thoa complete, by the leparatc action
of people and States; Its movamenta eontlHi
by the same aotion, and are renewed at tW
period* prescribed. The people of each Stati
elect it* repreaentative* in the House; ead
State chooses two aenators, and appoints its
proper number ol electors to elect a President.
So it must act through all time as a govera-
ment of State*, put in motion by the poww
which acts, in altering old, and instituting ne«
governments; which organiee*, continuea, aad
can amend, with such restraints, condition*, u-
oeptions, and reaervationa, as were neeeaaaijto
give efficiency to the latter, without "a vn-
atiou* interference with the internal concvn*
of the former." 4 Wh. S28. By thus tracing
both govemmenta to the aame fountain, and
the power of both, emanating in aeparate
grant*, their bearing on both systems can be
well understood, by referring any ambignitj
in the grant, or any part theraof, to the same
rules and standard of interpretation, by whkb
we measure and expound other grants aad
charters, which convey property, delegate, re-
strain, or reaerve power.
These consideration*, however, have nttwl;
failed to settle the true meaning of the tern,
"Wc, the people of the United States," as the
granting or constituent power of the federal
government. So far from there being any
general assent to that meaning, which, to ■;
mind, i* ao apparent in the Constitution, with
it* necessary practical results, which its fram-
ers and adopters must have known and fore
seen to be inevitable, the reverM may ha tbr
common opinion.
It is but too apparent that there have beoi
two classes of both statesmen and jurists, who,
from the time of the Convention of I7ST to
the present time, have radically differed in
their constitutional opinions. Those of cwc
clais, fearful of the recurrence of the evila of
the confederation, adopt the most liberal nile«
of construction, in order to enlarge the granted
powers of the federal government, and extend
the restrictions on the States, and State laws,
beyond their 'natural and obvious im- [*!'
port. Those of the other class, more fearfnl
of the gradual abaorption of the powers of the
States by the assumption of powers tendlngto
turn "a federal government of States" into a
consolidated government of the Union; adopt
the most narrow construction which can M
put upon words, to contract the granted powers
of the one, and the restrictions on the othen,
by which the reserved powers will be pro-
portlonably enlarged. There was a third class,
of which there I* yet a small remnant, wbia
were willing to take the Constitution with Its
amendments a* it is, and to expound It by tbe
accepted rule* of interp.-etation; wfaatenr
mi^ht be tbe tvanlt on the power* granted, re-
■tncted, excepted or re*erved; if it was the
meaning and intention of the supreme law of
tbe Una, it was their rule of action. Eaehaf
the three claeaea. Justly considering that p>-
litical power operated like the screw in mecbia-
ism, gaining strength by every onward torn.
losing the strength of Its hold by a bachwud
turn, and retaining It* hold so far a* K ktd
turned. Each of the two Brst daaae* woald.
AitD GovnNKEitT or the Uhiied States.
therefore, ende&vor to And bj construction a
lever by which to gire it a power, stronger In
one case and rvFiker in the other; while the
third would leave it at the preciBe point where
the firat moving power hod fixed It; believing
that it ought to remain ttatiunar; till the
amending power ahould turn it forward or back-
ward from its original position. Taking mj
Josition In the ranks of the third clau, it has
een my endeavor, in all Btationa, to And out
the meaning of the Constitution by its ex-
pressed intention, to be collected from ait its
parti by old settled rules, the hietory of the
times which preceded, and the state of the
times at it* ednption. In ao doing, I can give
to the preamble, or to the declaratory part, no
greater imporlunce than to the othpr parts of
the whole instrument; wheu they can all ba
reeoncilcd, they must be made to do so; if they
cannot be made consistent with each other,
that which most clearly indicates the inten-
tion must control; recital must yield to enact-
ttient, form to substance, the name to the
thing. Tlioae who use it as a lever by which
to press the screw more severely on the powers
of the several States, must trace the power
tt-hich Grst propelled it to some source of
Bovcri'ignty, absolute and unlimited in matters
of government, else it cannot restrict the States,
If the preamble truly points to the majority
of the whole people of the United States, in
their aggregate collective capacity, as the orig-
inal depository of this power, that power is
immpetent for all purposes of consolidating, or
distributing it, in one, or among many govem-
inents: but it necessarily excludes federation
l>etween the several States. They otust conie
into it as equals in power, who can acknowl-
edge no federal head except the one created by
the act of federation; no federal legislation can
be exercised but by a legislature which repre-
sents the constituent parts. If Congress is the
creation of the sovereign power of one State
or nation, whose people have done the act In
the unity of their political power, it is no fed-
eral government j there are no constituent parts
*B*J by which to compose it. •The residuary
sovereignty of the several States of this Union
Knd the people thereof, cannot be the same aa
the absolute aoverei^ty of the one nation and
people thereof; which, by Its own nnaided
power, ean institute a government over the
whole thirteen States: the term "abaolute,"
ftdmits no limitation as to power; residuary
can mean only that residuum which the abso-
lute power has not pleased to exercise. The
use oF the terms absolute and residuary sov-
ereignty, thus applied, either in argument or
Illustration, is, of necessity, with a view to
make the Constitution operate by Its grants
and restriction; by an authority paramount to
that of the people of the several States, and
thua hear essentially on Its exposition. Hence,
the preamble has ever been the field selected
hj the first etass, whereon to exert their
strength, and on which they maintain their
Sroposition; tf they abandon that field, the
onatitution gives them no other defensible
position. The object can be no other than by
the potency of the preamble to control the pro-
visions of the Constitution, to aa to give to
the term "^he people'' the sam< meaning and
reference wherever it li Bsei
t i<. «d.
The term is found only in three plaeest In the
preamble it is "the people of the United
States;" in the second section, first article, it
is "the people of the several States;" and {«
the tenth amendment "the States respectively,
or the people;" in all it is connected wlu
"States;'* but the phraseol<^y la different aa to
both terms, tt then becomes ajl-lmportant to
examine whether "the people of the United
States,* who established the Constitution "of
the several States;" who elect the "representa-
tion from each State," and '^he States respect-
ively or the people," to whom all powers not
granted or prohibited are reserved, refer totha
same or different bodies.
[t cannot well be doubted that if the gen-
eral term in the preamble refers to the whole
people in the aggregate as "the people of tba
United States," the still more general Urm In
the tenth amendment muat be taken to the
aame sense, "the people;" if they are so taken,
then the intermediate term, "the people of tJM
; several States," must receive the same Inter-
pretation, or there must be this conseouenoa.
That tbe granting, restraining, and the re-
served powers were, and are in the "one peo-
ple," and the power of organising and admin-
istering the government, is in the "several
people of each State;" of course there can be
no reserved power In them, and it muat remain
in tiut body which eoutd grant, restrain, ex-
cept and reserve, according to tbe doctrine Of
this court. "Any restriction upon it, derived
from an external source, would imply a diminu-
tion of its sovereignty to the extent of the re-
striction," etc 7 Cr. IM. On the other hand.
If tbe three terms mean the same thing, the
one people, the words, "several States," "each
State," are made to mean the States In the ag-
gregate; by which the words "several" and
"each" will be virtually expunged from the
body of the instrument; and the words, "in
the aggregate or collectively," inserted by con-
struction. No one, then, can fail to perceive
that by adding these words, or taking out, or
neutralizing the words "several" and "each,"
the whole 'Constitution is made to [*St
speak in dilferent language; and to express an
Intention wholly diSerent from that which Its
words Import, read aa they are. I, therefore,
wholly disclaim this mode of construing the
Constitution by adding or altering a word, the
tendency whereof is too well understood to be
mistaken, ft is to draw tbe attention from the
body, the provisions, and tbe operations of the
Instrument, in the terms of which there la as
ambiguity in defining the term "people" or
"States," and confine It to Its caption or pre-
amble, which In itself may admit of a refer-
ence to suit tbe object, if it is not eomparej
with what ia ordained and established in dstaiL
By adding to the term, "We, the people of
the United States," the word "Hverally," all
ambiguity is removed (if any could exist after
connecting it with the second section of tbe
first article) ; the creating, organising, and ad-
ministering power Is one. By adding the
words, "In the aggregate," or "collootfvely,"
or any others of equivalent import, the two
Ewers are necessarily separated, and muat b*
mmpBtible, unless one can control the other
in its appropriate function; to that if tlw
Oonatltntloa ia to be conatroed by its praaaUt
••I
Ouflflf Ain> Katdbi or thk CoHBTtTtnuaK
tibn of the
Now, if there is tiny rule of interpretHtion by
which the word "collectively" may be i.dded, bd
>■ to make the declaratory part refer to one
people in the aggregate, and the ordaining part
refer to "the peopl( of tbe leveral States which
may be included in this Union," and thuB bring
lata action conflicting powers, a fortiori, the
word "severali;" ma; be added to make the
different terms correspond, and indicate the
■ame power, in order to produce harmony be-
tween the parts, and make the instrument
■prak from its four eorner* in the same Ian-
Kuage, and enpress tbe same intention. Thia,
however, is not necessary for those who take
the power to be several, inaamtich m the un-
certainty of the one part is removed by refer-
ence to the certainty of the others; hut as a
matter ot right in expounding writing, inter-
polation is not an exclusive franchise; the
power is, in its nature, concurrent in both
sides; the propriety of its exercise by either
depends on tlie nrit.ing Itself, or the nature of
the interpolation, and its effect on its sense.
Obliteration is next of kin to interpolation, and
exercised by the same right; the ana operates
by addition, tbe other by subtraction, to change
tbe aense of words or language, in order to put
in or take out of tbe Constitution powers
which one party is desirous of including within
it, tliough not granted, and the other of ex-
cluding from it those which are granted; one
striving to Impose new, the other to remove
existing restrictions, and thus to expand or
contract it to suit their respective purposes.
These are two of the modes by which the
human intellect baa, for fifty years, been exert-
ed, to make a supreme law, by construction and
implication, what it ought to have been in
terms and declared intention, in tbe opinion of
those who think that the federal government
IB too weak or too strong, and tliat of tbe
States are under too little or too much re-
straint, if the words are taken in their
natural and obvious, their ordinary or legally,
40*] defined sense. A third 'is, by supposing
objects and purposes to have been intended by
the particular provi:<ions, which neither declare
or refer to them; and making them tbe prem-
ises, draw from the words such concluaiona as
must follow from such premises, whether the
words warrant them or not. Either mode ef-
fects the object; let words be added or taken
out; let ns assume certain olijects and pur-
poses, motives and intentions, not apparent in
express words, or necessary implication result-
ing from those used; anyone may make the
Constitution conform to his opinions and meet
hi* purposes; but it will not be the same as
when it came from those who framed or adopt-
ed it, or as it should be read bv the judicial
eye. Whenever we depart from tne established
rules for expounding ^ants, and insert a new
•nbject matter, on which power can be exerted
by color of tbe grant merely, and not by fair
exposition, the power is absolute; for the Con-
stitution limits only those federal powers which
it grants expressly in words, or in such terms
U oy their force and meaning neceosarily im-
Ely it. So, when restrictions are imposed on
tatea Id definite cases, their ext^isiou in
either mode, to other eaaea, ia capable of no
ta IP-
plied to narrow the powers of the one, or tht
restrictions on the other governments, or to
expand or contract the exceptions on either
f>wers, or the reservations of the amendments.
he work of plain men must be explained by
plain rules; tnose of subtlety and refinement
tend to pervert it* meaning and impair its
effect: it cannot be a bond of perpetual union
by adding to, diminishing, or altering i«y
term or clause which can change its sense it
any wa^ by mere Implication; if it ia made to
speak in language different from its exprew
or obvious meaning, it will defeat ita own de-
clared objects, and become the apple of disemd
and the serm of disunion.
It tends little to the elucidation of tmth
from any writing, to dwell too much on mere
phraseology, when ft ie evidently not the trot
index to its meaning; it tends to obscure it
when its substantial provisions are not closely
examined by authoritative rules, and meie
opinion substituted as the test of intention.
The weighty matters of constitutional law arc
not in mere words and terms of designation:
there are some legal instruments of which they
may be the essence, or afTect their operation,
such as the technical terms of some art or
science, which require research to find out their
peculiar meanings, when they are used in a
sense different from common import.
But when we approach an instrument so aa-
cred as the Constitution, discussions about
words are dangerous, unless, when their mean-
ings is admitted, and the intent is apparent,
tbe contest is as to the phraseology or mode of
expressing it, which is most appropriate or
correct, according to its classical or other
standard of deflnition, use or applicatim.
Without such admission, and when words an
intended to be made substance, and termi
things; there is great danger of an undue im-
portance being attached to them, especially ot
those upon which so much depends as those ia
the preamble. The great question is, what was
the substantive power, the acting thing, whiei
'created the federal government, infused ['41
vitality and efficiency into its action T If we
suffer our minds to be drawn from the great
first moving power to tbe mere terms which de-
note it, by engaging in a war of words, wf
shall pursue a phantom, a phrase. Tbe thing
sought will be first overlooked, next forgotten,
and another be taken for it; and in the end «e
may repudiate that power that alone did oi
could act, and conclude that what has been
done was by a power which never did, could, or
can act, so as ^ effect the declared object,
which it is admitted has been actually effected.
Apprehensions .:f this nature are not chimeric-
al; tbey have been felt and expressed by this
court after the "xperienoe of forty years, dur-
ing which it had treen seen that discussions oa
words and terms bad been made, with tbe en-
deavor to make the Constitution refer te
names, not things. It had been carried ao far
that the appropriate organ of the court, tbni
expressed bis and the seotimcnln of the ma-
jority in the fallowing language, in the ex-
position of a eiause in the 10th section of tbs
1st vtlde of the Constitution, on which eoc of
tbe eauaes now before us depends, via.: Briscoe
et aL T. The Commonwealth Bank of Kentaeky-
B»ldtrl*.
un OoTEBNUEirt or tub Uxim BtatA.
It b doe, bowever, to th« very mble argument
on both Mfi. to declare that the remnrks are
not applicable to the course taken at this time,
or tntended to be ao applied:
"And can this make any real difference?
U the proposition to be maintained that the
Constitution meant to prohibit names, not
things! That a very Important act, big with
sreat and ruinous mischief, which is expressly
forbidden by words most appropriate tor its cle-
■cription, may be performed by the substitution
of a name! That the Constitution, in one of
its moat Important provisions, may be openly
evaded by givins a new name to an old thingr
We cannot think so. We think the certificates
emitted under the authority of this act are aa
entirely bills of credit aa if they had been so
denominated in the act ttBeit." 4 Pet. 433,
Cr«ig T. Missouri. In the entire correetnesa of
these views no one of that majority concurred
more cordially than myself; and hnving so
eoneurred, 1 may apply it, mutatis mutandis,
to a term intended not only to affect "the most
important provisiona of the Constitution," but
to remove it. to;;i-theT with all ita erections,
from ita foundation on the power of the people
of the several States to one resting on the pow-
er of one people of all the SUtes; aa the origt-
iMil power which exists, if at all, only in the
preamble, and is unknown to any of its pro-
Tisions. The same venerated organ of the court
had, in a great case and opinion, given his and
their views on attempts to give to the Con-
■titntion "that enlarged construction which
would extend words b^ond their natural and
triivious import," by an express disclaimer (B
Wh. IS8) ; and in a subsequent part, thus ex-
presses himself, in isinguaga equally appropri-
ate to the two closae* of stateamen and jurists.
Tboae who desired to extend too widely, or
«oatnot too narrowly, the powers of the gov-
ernment, "in support of some theory not to be
(oond in the Constitution."
"Powerful and ingenioua minds, ttddng aa
4a*] Doatulatea that tba 'powers expressly
gruitea to the government of the Union are to
be contracted by construction into the narrow-
est possible compass, and that the original
powers of the States are retained. If any possi-
ble eonstruetion will retain them, may, by a
eomrae of well digested, but reGn^ and meta-
|diyaical reasoning, founded on these premlsea,
explain away the constitution of our country;
UM leave it a magnifleent structure to look at,
bvt totally unfit for use. They may so entan-
gle and perplex the understanding aa to ob-
ecure prmciplea which were before thought
quite plain, and Induce donbta, where, if the
mind were to purine its own course, none could
be perceived. In auoh a ease it is peenliarty
ueceeaary to recur to safe and fundamental
principles, to sustain those principles, and
when sustained, to mkke than the tests of the
argnmenta to be examined." 4 Wh. 222, Gib-
bons V. Ogden.
In this great opinion, ecaoootcd by a great
^nd, in which woa atored the true principles
of the eonatitutional law as understood in the
olden time, and as the illustrious father of fed-
mni juri^rodenee expounded them in onr own
times, we find it concluding wiUi sentiments
alike worthy of the great and good magistrate
who B^rcsMd thsm, Uie tribonal wImm judg-
ment he pronounced, and the Instmment as to
which it was his flrat and last aspiration, eito
perpetua. As that ease and opinion, too, bears
most essentially on one of the present ones —
The Corporation of New York v. Miln — inclin-
ation and duty aiike induce me to follow in
the path thus illumined, and with such a guide,
refer to safe principles, sustain and make tliem
the tests of the merits of all the eases before
us. Assuming that the principles of the Con-
stitution are "sate" and "fundamental;" that
there can be no exposition of Its words and
meaning so authoritative as that of this court,
I am not without the hope that when the text
and commentary are found to be in perfect
harmony, there may be less discord concerning
them, in judicial opinions, at least, if not in
those of the profession, than there has been.
The Constitution of England the Model of Oura.
e better acquainted with the ju-
tbe Constitution; our institutions, our ideas of
government, our principles of law, the rules of
rights and property, were as perfectly English
as our habits and language. The colonists
baeed their course upon the eonstitution and
laws of England; It was in them that they
found out the nature of the government under
which they lived; a definition of the rights and
powers of the people; the duties of the govern-
ment, and a line dt«wn between the asserted
and legitimate powers of Parliament and royal
prerogative. Their appeals and remonstrances
were founded on the principles of a Constitu-
tion understood and respecteid in both countries
as the standard, line, and rule of right and
power, though it was unwritten; there were
customs, charter! of property and franchises, a
Magna Charts, and acta of Parliament for their
confLrmation, 'which secured the people [*4S
in the enjoyment of their private and corporate
rights, against violation by any law. Grants,
charters, and customs, confirmed by Parlia-
ment, had the force of statutes; and though
they could be impaired or annulled by ita su-
preme and transcendent power in the mother
country where the people were represented, the
colonists denied the power, unless they were
also represented. They fallowed the examplea
of their anoeators in making a declaration of
their righta and wrongs at the commencement
of their strug^e, in which they claimed and
complained asEnglishmen entitled to the bme-
flt of English law. Taking their stand on ita
SrincipleB, they asserted them in all their pnb<
0 acta, which led to the Revolution; and
when they resolved on renouncing nll^iance
and dissolving connection with the £^lish
government. Congress did what Parliament had
done at the Revolution of leSS. When they
declared the throne vacant, and who should
thenceforth occupy it, they also declared to
whom allegianee was due, and prescribed the
form of Ue oath; and when the ehange of
government was effected in faet, announoed It
by a solemn declaration of the oauaes which
led to it. Vide 3 Rufl. SUtotea, 41S, 440.
The proceedings of Parliament were a guide
and the pattern of those of the Statea and
Congrm Inn 1174 to July, 1716. The same
Obiois Am Katcbb o» the Com
prlnoIplM perradad th« mbcaqnent procmdlngi
of both til! the present p)veiiiDieDt was e«-
tAblUhed, but tfaelr eiperienee hmd tiugbt them
thAt two pt%t chuigeB were iDdiapeiuabie in
order to avert, for the future, the ptrile And
eviU of the put Tbftt the supreme power of
government muat not be vested in mny legie-
Uitive body, m it wab I& Perliuneat; th«t
the power of the people must ba absolute Mid
unlimited over bII government; uid that no
power should be eierciicd unleei b; their own
authority. That the power* to be exercised
by the Legielaturs, aa weil as those prohibited,
Mcoepted, qualified, or reserved, should b« de-
flned by a written constitution of government;
•o that there might be more certainty and
•afety In ascertaining ita meaning as a su-
preme law, than when it depended on usage,
custom, and precedent. These changes were
made bjr all the States but two during the
Revolution.
Grants to be Construed AeoordiDg to the Iaw,
as It Was when They Were Hade.
To understand the Oonstitution, then, m
must trace its principles, terms and provisions,
back through the luding acta of the people,
States and Congress, to the great fountain of
constitutional, statute, and common law, from
which our statesmen traced oar whole system
of Jurliprudence, and by a careful ocaminatioii
of the wbole ground endeavor to discover the
Intention of those who framed, who adopted
tiie Initmment, and its own expressed inten-
tion. That it Is a charter of goremment, a
grant of power, all admit; it Is alto an ancient
charter, for the federal government reata upon
It as a fundament«l law; those of the Btatea
also, are regulated by it in ita grants, as well
as its restrictions; it ought, therefon, to be ez-
44*] pounded as all 'such grants and d«TtM«
ftre, according t« what the law was at the
time of making them (Co. LItt. Q, b; M b;
4 D, C. D. 646], and "according to ancient al-
lowance" (8 Co. Inst. 282, a) ; "modem meth-
ods of eonveyancing are not to be oonatmed to
affect ancient notions of equity." Amb. 28S,
by Lord Haidwleke. No subsequent judge
can alter or vary from tha law according to
his own private aeotlmente, he being awom to
determine, not according to his private senti-
ment, but according to the known laws and
amtoms of the land; not delegated to pro-
nounce a new law, but to maintain and ex-
pound the old one, 1 Bl. Com. 70. "Tha com-
mon law hath no controller in any part of It"
but by parliament; and it not '"abrogated or
altered," then It "remains still." "It appears
in Magna Charta and other ancient statutes."
Co. Litt. 116, b.
This court has declared that they know no
reason why "a rule of Interpretation to which
all assent," "should not be at applienbla to tha
Constitution as to other instruments" ( 12
Wh. 438) ; that tha "interpreUtion of the
terms" depends on "the lan^age of the Con-
ttltutlon itself, and the miscUaf to be pre-
vented, whidi we know from the history of our
ooantry." 4 Pet. 431, 43fi.
Let whatever meaning be given to tha Oon-
stitotton; whether a league, confederation,
agreenMnt, ecnnpaet or trw^, "between Uie
Statea ao ratifying the same," u it expresaea
ttadi IB tha wvantb nrttoUi Ito w^tMaam, m-
••4
senos, and nature. Is a eontrset betwi
or nations (Z Peters, 314) | a giant (B ^
189}, speaking in the words ofthe graaf . . __
reference to the thing granted and the tUag
reserved (6 Pet. 741) ; with exceptions impir
Ing the pre-exlstenee of the power excepted (IS
m. 438; 2 Pet. 313; g Wl. 200, 207) ; with
prohibitions which restrict the grantor himself
(7 Cr. 136), and referring to the grantor all
power not granted or prohibited (1 Wh. S2S) ;
which remain in the grantor aa before the
Snt (4 Wh. 1B3) ; operating as an cxcIusIob
n the grant of what is excepted, reserved, or
retained. 6 Pet. 312, 741. It is a settled rule
that grants by Btates of thing* to which the
grantor has no right or title, are void (B Cr.
SQ; 5 Wh. 303; 6 Pet. 730), and that no ex-
ternal power can restrict a State. 7 Cr. 1U.
Tha Ifeaning of the Terms "States" and
"People."
It must then be ascertained what is tha eoa-
stltutional meaning of the people and
States. In the main position which I aaaun
and have endeavored to maintain — that each
State was "a single, supreme, sovereign pow-
er," axclusive and absolute within ita own
boundaries, unless by its own grant by the
Conatitution, and the restraints It has therriij
imposed on Itself, I ean understand it in all
its parte.
The people of a State, who had by their
State Constitution granted the power of le^
lation to their State legialatures, had plenary
power to take from them such portions as th^
pleased, and by their grant vest them in a fed-
eral legislature.
The same people oould, by the same power
which made their constitution 'the su- (*4S
preme law of the State, mahe that of the Unit-
ed ' Statea the lupreme law of the land ^
braced In the Union, by each declaring it ao
within their respective boundaries, anS imit-
ing all the constituent parts by a deed signed
and executed by the people of each. They
could grant and modify the power* they parted
with, while the grant was in fieri: whea con-
sunmiated, the^ had no further power over
it, for, by their own consent, a ease arising
under it could be decided only by the Judieisl
power, as in a ease arising under a grant el
land by A. to B. So, mben a State renonneas
all power to emit a bill ot credit; to make a
Dompaet with another State without the odb-
sent of Congress; to impair the obligation of a
contract, and declares its exercise to be pro-
hihitad, the consequence Is plain. Limitations
ing a violation of a supreme law, by whleh
they have bound themselves. By Uila law
they order their judges to obey it, and hj wUeh
this court must adjudge the net of the Stats ta
be void for the want o( power. In obedienoa ta
the command of that 'wnf le aov«reij|fn pow-
er" which could bind and had bound Ttaelf, ta
refer all cases arising nndsr Ita own ■uprcois
law to the judicial power of ita own erentica.
If a State has thereby beeosne "shon of ita
beams," and thenceforth shines with leas thaa
"its original brightneaa," it is bgr ita own aatj
and for the future it muat move within the cir-
ole by which it has oonflnad ita own netioii, nn-
tU it ahnU b* aaUttMl )i
Am OomKMKNT OP THE UNTTB) STATn.
wUflh CKcb State baa boand itaelf to appeal.
Tha ameDiiing power uiating in "the States,
TMpactivelj, or the people," to be exercised
pursuant to the lltth article of tb« Constitu-
tion; whfcb must be taken and construed as b
elauie of revocation in a deed, grant, nr cfaar-
tn, hj an individual, the kin^, a proprietary, a
eoIoDf, a State in its l^islative oapacit;, or by
the people aa the aovereign thereof. It ia a
declaration by the grantor that he reaervei, and
in the mode he has prescribed, will exercise
bis right to modify or revoke whatever be has
granted; will remove any restrictioos he has
faiposed on himeslf whenever the requisite
number of the separate parties concur, with
■ueh exceptiona as are specified in the revoking
clause. Gubject to this power of revocation,
tha sixth article declares what the effect and
obligation of the grant shall be; then the tenth
unendment is added by way of a proviso, a
condition and limitation, operating on the
whole Constitution, declaring that what is
not granted or prohibited, Is reserved to the
oiganie power, "the States respectively, or the
people" {respectively).
The Respect Paid to the Opinions of the Su-
preme Court of the United States on Con-
atitutional Questions.
Such Is the meaning of these terms, accord-
ing to the language of the instrument in which
ttaey are used, the precedent acts of the people,
the States, and the Congress, the convention,
and this court, which. In any other ease* than
those arising under the Constitution, would
have been held to be conclusive, and closed all
4S*] discussion. "There will not be found in
ju'licial history an instance of a question aris-
ing on the words or terms of a will, a deed,
k contract, law, or treaty, that would have
been deemed an open one, after such a course
of adjudication on their construction aa has
bMn already shown. Nor is there any other
country in which the decisions of its own su-
pirae Judicial tribunal would be overlooked,
■ad the interpretation of its fundamental laws
be Kn^bt in the opinions of foreign writers, or
the adjudication* of the Inferior courts of for-
eign nations. Id England, one judgment of
the House of Lords settlw the law, and It la
not anffered to be again discussed In an in-
ferior court. Here, too, the same effect is giv-
en to a final adjudication of this eourt on any
other question arising on a written instrument,
■nwe on the Constitution. Yet their repeated
definitions of the tenns "States," and "peo-
ple," of contracts, their obligations, cessions of
territory, of Jurisdiction, by deeds and laws of
8t«teB, or treatiea with foreign powers, have
been nnaralling. All profess to respect this
eourt aa oampeunt to the high functions It ez-
ereisM, aa the constitutional arbiter of eases
arising under the Constitution; all profess to
rerere that instrument, as the best and most
perfect emanation of human wisdom; but
pimetlcally It would seem that neither Its fram-
en or its constituted expositor have expressed
their Intention in intelligible language. We
find that everything which has the semblance
of Judicial opinion, whether from the bench or
bar at Waatminater Hall, at thia day, U
preaasi npon na aa erldenaa of Uia mMning of
n fmnt made Sltj youa aiius^ without an in-
quiry how the law which bean npon It, waa
then. We are asked, in effect, to overlook ita
great feature as the supreme law of the land,
speaking in the same language from the time It
was proposed to the present, and through the
whole intervening period, and to make its con-
struction oocord with the fiuctuations of judi-
cial opinions In England, which we well know
have been very great within the last fifty years.
The EfTeota of Being Influenced b; I^te De-
cisions in England.
If we follow this eouase In our opinions, and
It should appear on investigation that within
this time the law ha* been reformed in England
by judicial power, and we follow the examine,
one of two consequences are inevitable: The
Constitution will have one meaning in Its appli-
cation to the old States, and a diiteTent one as
to the new ones, according to the law as laid
down by some of the courts in England, a
judge at nisi prius, or *ome elementaiy writer,
at the diSerent periods when each State be-
came a party to it or, the law, as laid down
at this day, must be Incorporated into the Con-
stitution as "a fresh infusion;" and it be made
to speak retrospectively, in a langusge wholly
unknown to its framer* and those who adopted
it; nay, wholly different from what was under-
stood and universally accepted at the time, as
declared by this court, iti one uniform series
of decision* for forty year*. In either case,
ws give to these opinions of foreigners, which
have no reference to our Constitution, of
'men who know not ita principles; not ['47
only a weight which they have not at home,
but we virtually make this tribunal subject
to ths appellate power of foreign courts.
If, as an individual, I could be willing to
waive the quantum of colonial dependence
which would be implied in thus recognizing
any judicial authority over us, as yet remain-
ing in the land of our ancestors, 1 would ex-
pect at least that it should be only that of a
court of aa high authority there as this eourt
has here; not of a court whose judgment may
be reversed by the King's Bench, Exchequer
Chamber, and House of Lords; the opinion of
a single judge, which may be overruled In bank,
or of a wriUr, whose lucubrations are read In
neither court, or at nisi prius. As a judge, I
am bound to take the law of a Rrant or charter
as it was "at the time of making them, and
their ancient allowance;" In the administration
of the system of jurisprudence which pervade*
the land, 1 take it as it was when it was adop-
ed. by the consent of the people or their legis-
latures, by the Constitution, Congress and thia
court. Aa a constituent member of a court of
volving the collisions of power between the
State and federal governments ; restrainta on
either, or the righta of individuals, or of cor-
porations, secured by either. The some rule
must be the law in the thirteen old, and the
thirteen new States which have been admitted
into the Union. If we suffer our minds to be
influenced by other authority, we must ex-
pound our supreme law, our great bond of
union, not iy the rules and prinelplea which
47
OaiatR AifD Natvbc or thi CoNsTnunoM
trine «f the itj in foreign courts, which mttf
be changed before the next term.
If the Conatitutiun ie to be taken aa a certain
Kr>nt, an uniform line of power, one I.tw regu-
uiing old ami new Statei ali^e. operating over
the whole territory, whether within the origi-
nal boundaries of the States, or late acquisi-
tions bj treaty, it must speak in the same lan-
piage, and ibi termi have, in 1S3T, Ihe same
interpretation as they had in ITBT, otherwise
it must forever reitiaiii unsettled.
Judicial reformations of the CKiating Ian are
U much liable to be reformed, and the law re-
■tored to what it was, as present low is subject
to future reforms; if we do not respect the
opinions of our predecessors, it cannot be ex-
pected that our successors will i«s|)ect ours.
We must, therefore, look with a single eye to
what the law was in 17ST, as declared by this
court, and carry its settled principles into new
cases as they arise; if we do not, it will be-
come impossible to sustain the principles of the
Constitution against the assaults which will be
made upon it. Our only safety is in its being
received as a sta-nrlard rule of action ami judg-
ment, the same through all time, directing tile
government of the Union, and of the present
and future States, as this court say, "^Ve can-
not comprehend that train of reasoning wliicli
would maintain that the extent of power
granted by the people is to be ascerlained. not
by the nature and terms of the grant, but liv
its date. Some State constitutions were fomiM
4B*] before, *90nie since, that of the I'nited
State*. We cannot believe that their relation
to each other is, in aiiy degree depenitent upon
this circumstance. Their respfctire jwwers
must, we think, he precisely the same as it
they had been formed at the same time." 4
Wh. 410.
If, then, the respective power* of the State
■nd general governments arc to be tested by
the law, as it was fifty years ago, I cannot re-
gard its subsequent changes, when judicially
examining the questions now before us. I can-
not look to late adjudicationa in England as
the rule by which to determine the effect of a
grant of a ferry in 1640, a charter to a corpo-
ration for erecting a bridge in ITSS, or what
waa ti.e obligation of the contract granting
them when it U made; hut look only to the law
u it then was. In m doing, I follow another
Knciple, settled by this court In Ogden v.
undera, that though the obligation of a
contract cannot be impaired by a law made
■ubseqiient to the contract, yet all contracts
arc subject to the regulations prescribed by
lawi existing when the contract Is made. 12
Wh. 368, 369. By a contrary course, the prin-
ciple is completely reversed; we repudiate the
law in force when the contract and grant wa?
made; we apply to it the law as subsequently
altered, ao that while we are bound to declare
a State law void, so far as it impairs the obli-
gation of an existing contract, we give effect
to an English decision, which may produce the
same resull. As an example, let the case of a
grant of a ferry be taken to iliustrate my po-
aition. In Savtile, 11, 14, we have the defini-
tion of a ferry given by the Court of Exchequer
Chamber (in 23 EHi. 1681), which was then the
highest court In the kingdom, as the liouse of
L Lordi had not then aasumed their aupreme ap-
pellate jnrisdictioD. It b admitted hf lb
judges below and counsel here that the eom-
mnn law as to ferries is, and haa ever btea,
tlie law of Massachusetts; notwithstandins
which, an opinion given in 1835 by a Lord
Chief Baron of the Exchequer, has been relied
on in opposition to the case in Saville, to show
the nature and extent of a ferry granted In
1S40. Whether the latter or the former opinioi
may now be the received law in England mat-
ters not; the colonists brought with them the
law of ferries as it was at the time of their <
emigration; this ancient grant of the colony
must he construed accordingly. To be contiat-
ent, we must suspend a final judgment till the
present Court of Exchequer Chamber has n-
versed the principle established as the law for
two hundred and iifty years. For it may H
happen that that court will not readily intro-
duce any innovation into the
8o far respect the opin;
membera. That theite views are peculiar, ii
evident from the course of argument and
opinion; but their peculiarity is, in itself, no
reason for abandoning them; if they are not
erroneous, Ihey are safe as a guide to a true
interpretation of a grant of power, to be exer-
cised by the several governments in the Unitad
SlutPS, whose basis waa the eoustitntion «1
England, and the common law, aa the great
system of juriaprudenoe from which all oar
I now proceed to trace the oonstituent power
of government in the several States, a* tht
constituent power of the United Statea, of
which the people are the head, the caput et Bni«
— the emperor, king, prince, potentate, ao**r-
eign, each of his own empire, realm, nation,
or State; as the primary, original fountaii ol
all legislative, executive, and judicial powen
granted or restrained, in and by the Conatitn-
tion to the colonies of Qreat Britain, who Iw-
came States of this Union, and were ita eonitit-
uents in IVBS; according to my poiition, ead
in their own right, "absolute and unlimited la
matter* of government, commerce and poaiw-
siona," as held and enjoyed by them respective-
ly, and njt collectively, or in the aggregats,
as one people, one State, or nation. Tb«
proposition is stated In theae terms, aa well ta
support it by the political and jndidal authori-
ties which bear favorably on it, aa to negativ*
the antagoniat proposition; which, having been
laid down by authority of both descriptioai
more weighty and inliuential than mine can or
ought to be, I must either make it the rule for
my judgment, by aubmiasion to ita reaulta, or
show by some paramount authority to whiek
we all profess to aubmit, that it is not founded
on historical facts or the laws of the land.
"It is a fundamental maxim and neeenail
principle of English tenurea that the king »
the unireraal lord and original proprietor at
all the lands in his kingdom, and that no naa
doth or can possess any part of it, but w)u>t hil
mediately Or immediately been derived a* agUI
from him, to be held upon feodal Mrricea. t
> UovixKUKiii or lui Ukiibd Biatcs.
XIm (eadal tenure* were ftbolithed under tlie
nnmmonwetilth, Had thoir abolition conBnncd
«t tbe Kcatoration b; tlie 12 Cor. II. cli. ^-1;
And hy the 4th Bection it Ana eu&cted "that an
tenures hereafter to be created bv the kiD;j,"
eta, "Bhall be in tree and comioon aoceage,
Knd •hall be adjudged to be in free and cuin-
xon Boccafie only." 3 Ruff. 1951. He is, how-
•ver, the universal occuuant, aa all property ia
{resumed to bave been held bj' him. Co. Lilt.
i 4 Uac. 163; T D. C. D. 76; D. 63. Bj
U| chM'ters, lie gave both soil aiid jurisdiction
to the proprietors of New Jeraej, Penu^j'Jrania,
Uarjland, and North Carolina, and one was
preaumed as to Delaware, b; wliicb these prov-
ince* were created principalities or aeij^Dorics,
ia the nature of eoutities palatiue in Hn^lari.I,
with the addition of central powers of legis-
lation, subject to revision bv the kin^ in coun-
cil. 1 BI. Com. lOS. In tliese provinces, the
proprietary waa deemed the count pj.latiuc,
acting according to the law of the Roman and
German empirCB, in the place, and by the de-
puted authority of the emperor. Si^ld. tit Hon.
3TS, et aeq. The imperator, or King of Enj^-
Und, a' sovereign equally independent in hia
dominions aa any sovereign in his empire (I Bl.
Com. 241, 242), retaining, therefore, only this
ultimate power of revision in his privy council;
the king, aa an emperor, had created these prov-
inces as counties palatine, which is the highest
fr«Qchi*e Itnown to the law of Enjjlaud, in
BO*] 'which the (proprietary or) count pala-
tine has jura regalia within hia (pruviiicu or)
county, as fully a* the king himuelf, 4 D. G
D- 4&4i Davis'* Rep. IGS; Seldeu, T. U. 3ti4.
Proprietary govern inents granted to individunls
•re subject to the express condition that noth-
ing shall be attempted which may derogate
from the Bovcreignly of the mother country (1
BL C. lOS), aa appears in their respective char-
ters, fealty ia reserved- Vide Pat. Laws N. J.
•pp. 1; & Smith, Pa. L. 40G; L. of Maryland,
li N. C. Laws, 1.
No land* in these provinces, therefore, could
be granted, or juriailietion excrcisi-d over them,
unless by the proprietary, in whom the abso-
lute propriety and dominion thereof was vested.
"In the royal colonies the kiii<; made no grant
of lands to them. In the creation of provincial
establishments, the eoustitution^ of which de-
C ended on the re^pl.>clive commissions issued
y the crown to the governors, and the instruc-
tions which usually accompany those com-
missions; under the authority of which pro-
vincial assemblies are constituted with the pow-
er of making local ordinances, not repugiiaut to
the laws of England." 1 Bl. Com. 108, "A
third class were, 'charter governnieata,' in the
oaiture of civil corporations, with the power of
making by-laws for their own internal regula-
tion, not contrary to the laws of England; and
with such righta and authorities as are special-
ly given them in their several charters of in-
corporation. The form of government in most
of them is borrowed from that of England.
The; have a governor, named by the king lor
la some proprietary provinces by the proprie-
tary], who is hia representative or deputy.
They have courts of justice of their own, from
whose decisions an appeal lies to the king and
together with their council of State, being ttadr
Upper House, with tbe eoncuirence of tM king
or his representative, the eoiernor, make laws
suited to tht-ir emergencies. But it ia declared
by stFtfute (T and S W. &, U. ch. 22; 3 Rull.
e09) "that all the colonies are subordinate to
and dependent upon the imperial crown and
Parliament of Great Britain, who have fnU
power and authority to make laws and statute*
of Bunieicnt validity to hind tlie people of
America, Bubjeetsof the crown of Great Britain,
in all cases whatsoever." 1 Bl. Com. 109. Thi*
waa the English view of our colonial eooditioB.
The American view is presented in the declara
tioQ of right* by the colonics, in the CongrMO,
on the Mth of Octobei, 1774, as theirs; ami
also (which will be referred to hereafter) show-
ing tho grounds assumed by the mother coun-
try. But the association drawn up on the 20tb
of^the tame month, shows that they agreed on
tbe condition of the people of the colonics,
who in a full and free representation thereof,
thus headed their association; "We, hi* majes-
ty's most loyal subjects," etc._; so they then
were, and so they remained, till they Eiecame
bound to the colonies or States, by the al-
legiance due to the king, which devolved on
them when they ceased to be dependent on him.
Vide, 1 Journ- Cong. 31, QZ, 28, 68, 134, 283,
and ante, 2a, 28.
'The Government of Blngland. [*51
Thus the colonies were considered by the
mother country and themselves, and auch were
their respective relations by the constitution
and laws of England, which were theirs. "The
British government, which was then our gov-
ernment, and whose rights have passed to tbe
United Slates" (8 Wh. SSH), as instituted and
organized, must then be examined in its great
outlines, as the pattern of the colonial State
and federal governments, which have super-
seded it, but which are all founded on the same
fundamental principles. All resting on the
supreme power of the people of the State, as
one State, but consiBtiiig of the people of
three distinct estates in England; each acting
separately in constituting the government of
the nation, the state, empire, realm, or kingdom;
and in its administration, as the power which
created and continues it, is in those separate
estates as the constituent parts. Tbe colonies
were mere dependencies of the State, a part of
its dominion, but not of itself; for from the
preceding view taken by Mr. Justice Blaok-
stoiie, it is evident that they were not states or
estates of the kingdom, as they are defined in
p. 5U, 51. The legislature of the kingdom i*
intrusted to three distinct powers, entirely In-
dependent of each other: the king, the lorda
spiritual and temporal, which is an aristocrat-
ical assembly of persons, selected for tlielr
piety, their birth, their wisdom, their valor, or
Iheir property; and "the House of Commons,
freely chosen by the people from among them-
selves, which makes it a kind of democracy:
this aggregate bod^, actuated by different
springs, and attentive to different interests,
composes the British Parlinment, and haa the
supreme di-i>osal of everything" (51); as the
power of making laws constitulfS the supreme
authority; so, wherever the supreme authority
in atiy State resides, it is the right of that au-
61
Ouon AMU N1.TDBE or xsb Votitmxjmm
thority to make IkWB. S2; *ida ]£ Wli. H7.
"With ua, therefore, in England, this auprame
Kwer Is divided Into two branches — tho nna
jialOitive, to wit; the Parliament, conaisting
■>f king, lorda and daminons; the other execii-
tive, eonaisting of the king alone; the British
Parliament In which the legislative power and,
of coarse, the supreme and absolute authority
of the atate la vested bj our oonstitutioii. 1
BL Com. 147. Parliamenta are "general
councils" (14B); "an asaemblj that met and
conferred together;" "general aBsemblies of the
states" (147); "great council;" "the meeting
of wiso men;" "conventus magnatum," etc
(14S), to make new laws; novia injurlia emersis,
nova constitiiere remedia, etc. Congress, to con-
sillo, convention, conatituere. A legislative as-
■embly. 1 Bl. Com. 169.
The eonatituent Parts (vide 0 Wh. 414) of a
parliament are, "tne king in his political ca-
pacity, and the three estates of the realm, the
lords spiritual, the lords temporal (who sit to-
gether with the king in one house), and the
oommons, who ait by themselvea in another."
And the king and these three estate* toother
form "the great corporation or body [wlitic of
the kingdom, of which the king la said to be
caput princlpium et finis." 1 Bl. Com. 163,
These are "the constituent parts of the sover-
52*] eign power." (1G0.) Both classes *of
lords, however, though in the eye of the law
the lords apiritual are a distinct estate from the
lords temporal, and are so distinguished in
most of our acts of Parliament, yet in practice
thej "are usually blended together under th^
one name, 'the lords;' they intermix in their
Totee, and the majority of such intermixture
joins both estates." (150.) The lords spiritual
being archbishops and bishops, and formerly
abbots and priore, who hold, or are supposed
to hold, anaient baronies under the king, in
right whereof they were allowed their seats in
the House of Lords. (155.) The lords tem-
poral consist of all the peers of the realm (156);
aa a body of nobles having a distinct assembly,
deliberation, and powers from the commons,
in order to support the righta of the crown and
the people, by forming a barrier to withstand
the encroachments of both (l&B); representing
themselves and the landed property of the
kingdom, they hold or are supposed to hold.
The commons consist of all such men of
property in the kingdom as have not se<its in
the House of Lords, every one of which bas a
voice in Parliament, either personally or by
his representatives. In a free State, every man
who is supposed a free agent ought to be in
some measure his own governor (vide 1 Journ.
Cong. 69) ; therefore a branch, at least, of the
legislative power, should reside in the whole
body of the people. "And this power, when
the territories of the State are small, and ita
dtiiens easily known, should be exercised by
the people in their aggregate or collective ca-
pacity, as was wisely ordained in the petty re-
publics of Greece, and the first rudiments of
the Roman State" (1GB; vide 2 Dall. 470). This
is the principle which is now applied to the
the people should do that by theii represent-
atives which Is impracticable to perform in per-
aon and have them chosen by » number of mi-
tt*
Dute and separate districts, wherein all tbe rat-
ers are or may be safely distinguished.* Tia
counties are therefore represented by knights,
elected by the proprietors of land; the cities
and boroughs by citizens and burgesses, chowi
by the mercantile or supposed trading intci art
of the nation. "And every member, though
chosen by one particular dietrict, when elected
and returned, served for the whole realm. Fee
the end of hU coming thither is not partienlu,
but general, not barely to advantage his com-
stituents, but the Commonwealth; and then-
fore he is not bound, like a deputy in the Unit-
ed Provincee, to consult with, <» take the ad-
viae of his constituents upon any particular
point, unless he himself thinlu it proper or pm-
dent to do ao."
"These are the constituent parts of a parik-
nent," parts of which each is ao neceasary,
that the consent of all three is required to make
any new law that shall bind the subject; "thtae
parts are parliament, thua united together, and
considered as one aggregate body." 169, 110,
149. The king, lords and commons Id Pnrlia-
ment assembled. 198.
The king is a constituent part of the supraiaa
legielative power (Zfll); the executive power,
a branch thereof, whose "share of legislation'
■is "in the power of rejecting, rather [**»
than resolving," this being sufficient to answer
the end proposed (1S4); the lords, in law two
estates. In practice, one, representing their own
rights and landed property, or supposed so; iht
commons, composed of the knights of shirea, as
the representatives of the landholders, or land-
ed estates of the kincdom (172); citiiena and
burghers supposed to be elected by the trading
interest, as the representatives of the moat
flourishing towns, who, as they increased la
trade and population, were admitted to a ahan
in the legislatuie, and yet retain it, though they
had decayed; and the representatives of the two
universities, to protect in the legislature the
rights of the republic of letters (174); so of the
Cinque Porta, Herein we have the legislatin
power of the colonies and States, by subatitnt-
ing the term general assembly In their Garten
and constitutions, in lieu of Parliament; exeapt-
ing only the restrictions and qualtScatlona by
them respectively imposed. We have also Uie
merely resolving power of "the United SUtM
of America In Congress assembled," before thr
confedemtion; and the power to make requin-
tions on the States under it, which was but •
shadow of a parliament But we have the
substance of all legislative powers beitsa
granted (which) shall be vested in a Congrcat
of the United Statea;" the American Parfia-
ment, composed of the President, Senate, and
House of Representatives, the caption of whose
laws is, "Be it enacted by the Senikte and
Houae of Representatives, etc, in CongreM as-
sembled;" aa In England, by the lords spirHnal
and temporal, and commons, in Parliamemt as-
aemhied. The great difference between ths
two constitutions is, the one defines the "legis-
lative power, and limits it by ennmeratii^ tts
subjects of ita exerciae" (4 Wh. 405; t Wk.
1S8, 189, 196); the other doea not; of ewe-
quenoe, It is aufireme and absolute, not both
define the executive power, when it acta other
wise than its appropriate part in legialatioa.
In England it ia by the perogaliYe power, •"
XHb dorktiiuBiiT or thk Uiimn BtAim.
iMTCiit In the peraon who flIU the throne, u
king or queca; hero it is like legiilstiTe power,
wbi^ Ea only what U mnled b* eipraa words,
or necesmu^ implication, reialting therefrom.
1 Wh. 32a. The Fraaideot is inveated with
evrtain important political powera (I Cr. IM),
which, if he or anj oGBeer acting by hli ordent,
eseeeda, the act la void, and the officer auable
(171); aa a legiaUtlTe a«t, repugnant to the
Conititntlon,l*Toid (177), n must an txeeiitiTtt
mat be. But when the cseeutiT* acta within
the powera delegated, hie acti IwTe the power
of the Ormatltution, in the aame extent aj acta
at GoDcrcaa. 1 Cr, 194, 1T2.
The royal prerogative can no more be eier-
ciaed bj the executive power here than the
tnnaeendent absolute power o( Parliament can
be by Congivta. Both powera are exBrt«d by
eonatitntioDally delegated powers, and are void
III England the Icing's prerogative is limited
bj oertsin bounds; it extenda to all things not
injurious to hi» ■ubjecti. 1 Bl. Com. £311.
(The exemptions need not be stated here, ea
thev will be more appropriately referred to in
B4*]one of the cases.) The executive power *is
placed in the king for the sake of unanimity,
■trength, and dispatch; he is the chief maris-
trate of the nation. (2fi0.) He may reject what
billa, make what treaties, may coin what mon-
ey, may create what prtn, and pardon what
offenses be pleases; unlesH when the eonstitu-
tioa hath expressly, or by evident consequence,
l«)d down some exception or boundan, declar-
ing that thus far the prerogative shall go, aud
no farther. (200.)
"With regard to foreign concerns, the king
la tbe delegate or representative of his people,
in whom, as in a centre, all the rays of nis
people are united." (262.) "Aa their repre-
•entatire, he has the sole power of sending and
i«ecivtn{^ ambassadOTS." {2S3.) 'H^ha sole
prerogative of making war and peaoe." (2S7.)
"The first In miliUry command in the king-
dom." (202.) 'It ii parUy upon the aame,
Kod partly upon a fiscal foundation, to secure
hfa marine revenue, that the Icing has the pre-
ragmtive of appointing ports and haveui."
"Tba navigable rivera and havens were com-
patad among the r^alia, and were aubject to
tii:> sovereign of the state; the king is their
gnu'dian, and lord of the whole shore."
"But though the king bad a power of granting
th« franchise of havens and ports, yet he hod
not tbe power of tcsumption, or of narrowing,
or eonDnlng their limits, when once estab-
lUhed." (264.) "He is the fountain of Justice,
and general conservator of the peace" (286),
"thongh he haa delegated his whole Judicial
power to his Judies." (207.) "From the same
original, of the Kings being the fountains of
iuatioe, we nwy also deduce the prerogative of
ing proeiamations, which is vested in the
akMM* f270]i "of eonferrins privileges."
) "He is, with regard to £>meatie con-
tbe arbiter of commeree" (273); "and,
nMMurea" (274)i "and as money is the medium
of oommeree. It ia tbe king's prerontive, as the
arbiter of domestic commerce, to give it author-
1^ or to make It cuireDt." (270.) "The de-
Bonlnfttion or value for wlileh the coin la to
MM cnrvant, la UkewiM in tba braaat of the
^I
king; be may Intimate foreign eoln, dedar-
fng at what value it may be taken in payment.'
(278.) "The king may, also, at any time, daory
or run down any coin of the kingdom, and
make it no longer current." (270.)
The Peatures of the British and Federal Qov-
emmenta Compared.
In thia cntline of our old constitution of gov*
emment, we see the pattern of our new one,
(hough with a different distribution of powers;
the most important of thoae which are In tha
king, by prerogative, in England, are grantad
to Congresa; the judicia] power is rrated ta
tbe coiirts of the United States exclusively,
and the executive power is as mnch defined by
enumeration as tne le^slatlve and Judicial
powers of tbe Constitution are. Herein con-
sists one great difference between the two
governments; and from thia there arises an-
other, which is all -important. The powers not
delegated or prohibited, being reserved to the
States respectively, or tbe people; none can
exist by prerogative, or inherent power, in any
branch of *tlie gDvernment. Hence the [*5fi
effect of a upecincation of the powers granted
and prohibited, and the express reservation of
all others, leaves to the States all the preroga-
tive powers of the king over those subjecte
which are Involved in these fonr casrs, either
directly or collaterally, on none of whicli are
any "powers granted to the United States by
this Constitution." The only questions tn>
volved are, whether the laws and acts of the
States come within the prohibition; it they do
not, they are valid, as tne exercise of their re-
served powers; to regulate their internal polity,
police, and commerce; to grant charters of In-
corporation for enjoying franchise over public
rivers and arms of the sea within a State; for
the establishing tbe boundaries between States,
and creating a bonk corporation to deal with
the funds of a State, according to the terma of
the charter.
There is another difference between the ex-
ecutive power here and ia England. The king
is a natural person, on whom the crown de-
scends by hereditary right, aa real estate does;
and In whom the executive power vests, by
birth, on the demise of the crown, so that this
crown is never without an heir. 1 BL Cos.
190. Here the executive power is vested in a
president, who is an ofBcer created by the Con-
stitution to perform the designated functions
of an oflioe, which la filled by an election la
the first place; on the demise of tbe Incumbent,
the office devolves on certain other offlcen,
named in the Constitution and act of Congress.
Of eonsequenoe, whether the office is fill^ by
the person elected thereto by "the electors from
each State," or by "the representation from
each StOite, in the House of Representatives,"
by "each State having one vote;" or by devo-
lution on tho officer designated to fill it; the ex-
ecutive power is equally vested in him, aa the
President of the United States. The office is
ailed, the officer filling It, whether the Vice-
President, on whom it devolves by the Consti-
tution, the President pro tempore of the Senate,
or the Speaker of the House of Reprasentatlvea,
im whom the office devirivea in sueoKSsIon by
law; the character of tbs office, tbe nature ami
power of the offies ta tbs same. It la preciselj
Obiadi ard Katdbb or thk CoiiniTunoK
wlist tlu Constitution h«a declAred — iwitheT
more dot len — his legislative functiana are iiki
the king^j, except that his veto ii not absolute
but in nU executive capacity he U, and can be
no more thftu an officer; the chief eiecutivr
style given imports no power;
before and under tbe confederatiou, Congress
elected B president who was ex officio, and from
tha nature and character of the body over
which be presided, "President of the United
States of America in Congress kssembled."
1 Iawb, 4ei. But the title was a mere name
till the ConatitutioD made it a thing — "the eX'
ecutive power," on some subjects supreme, on
others subordinate, according to its provisions,
in designating tbe respective powers confided
to him aa an agency, a* all tbe grants of power
to the other branches of tbe government are
declared to be by thia eourt. He tiaa, there-
fore, oo representative character; has no repre-
sentative function to perform, and neither by
S6*] his representation *of tbe States or tbe
people can exercise any poweri reserved to
them; though they are the very powen vested
in the king by prerogative, aa the delemta or
representative of tbe people of his Idn^om or
In other respects tbe great features of both
governments are the same; both established by
the people of tbe eatatea of one, the States of
the other; each State or estate represented by
their representatives in distinct bodies, forming
independent branches of the Legislature, cboaiD
or appointed in a different manner; liut each
representing their several and -respective es-
tatea or Statesj though, when elected and re-
turned, "aerving for the whole realm;" the
whole United States. "The estates of the
realm," in Parliament, "the United Slates,
which may be included within this Union" in
Congress, acting by "the representation from
each State," in the House of Commona, or
repreaenlativea, and in the House of Lords or
Senate, by persons entitled by birth, ollice,
tenure, or appointment by the king, or "chosen
from each State by the Legislature thereof;"
and both Lords and Senate voi^tituting the
middle power between tbe executive and the
There Is another feature common to both
governments. In England the king baa his
oonititutional counselors and councils. Tbe
peers of the realm are, by their birth, heredi-
tary counselors of the crown, and may he called
together by the king to impart their advice.
(227.) The judges are a council for law mat-
tera. (229.) But the principal council is the
privy council, and by way of eminence is called
the council. (229.) So the President han
his coundla. "Ho may require tbe opinion in
writing of the principal onicer at tbe bead of
each of the executive departments," etc 2
Sec. 2 Art. Clause 2, Const. This is called a
cabinet council; it ia a privy oouncil, in wbicb
the President ia preaent, as the king fa in per-
son in his. 4 Bl. Com. 231. The Senate is
the council in making treaties, in advising and
conMuting to appointments to oHice. Sena-
tora are not, ex ufGcio, counsetora individually;
but the Preaident "may convene both Houses,
«r either of them."
Conventions of the Estates of tlu- Kingdom si
England, Compared with Conventions of tk
States of the American Union. The English
Declaration of Rights and Wrongs in 1688;
the Pattern of the American Declaration <A
1TT4, 1776, and 1776. The Abjuration of Al-
legiancy to James the 2d., and George the Sd,
Compared.
Another striking feature of affinity bl tha
grcAt political inatitutionaof both countriea,ls
in the convention of tbe estates of the one, and
the States of the other, as its organic power;
they pass ordinances rather than acts of parHs-
ment. 1 Bl. 156. In England it is called •
"convention parliament" (15!), because the two
Houses meet as the representatives of their
several estates; each sitting and acting sepa-
rately, as In their legislative capacity, but act.
ing as a constituent convention- There can be
no constitutional parliament 'without a [*91
king: the houses meet in convention and dc
clare the rightful heir to the throne to be ths
king, as at the restnration (151), or aa at the
revolution of 1088, when the Houses as coovea-
tions, declared the throne vacant, by the luag
having abdicated tbe crown; n.ime the person
to SU It, and fix the succefsion in future: but
in both cases acts of Parliament were passed,
when all the constituent parts were assembled,
to confirm and validate the acts of the conven-
tions. 3 Rutr. 115, 415; 1 Bl. Com. 211, etc
In one of the acts of confirmation, the con-
ventions of IdSS are thus noticed: "whereat
tlie lords, spiritual and temporal, and can-
uions, aGKcmblcd," etc., lawfully, fully, and
freely representing all tbe estates of ''the peo-
ple of thii realm, did," etc. 3 RuS. 4m
tluw they assembled appears from tlie joumalt
of the two Houses. The lords met separately ia
convention, and received a letter from tht
Prince of Orange, addressed to the lords, spir-
itual and tcmpural, aaaembled in convention
(14 Journ. Lords, 101, 102), and prooccded as a
convention, till they agreed upjn certain resolu-
tions of the convention of the commons, de-
claring "that the king bad abdicated the
govcrument, and the throne being thereby
vacant." lb. 125.
Those persons who bad been members of tW
ousa of Commons in tbe last paxliament, met,
pursuant to a letter addressed to them from the
Prince of Orange, and passed some resolutioaa
(10 Journ. C^mm. 5, S) proposing a Mnven-
tion, to conbist of as many members from caet
county, etc., as are of ri;{1.t to be sent to Par-
liament, to be elected to represent tUem, aai
entered into an aS0<jciaLiou, "engaginE to Al-
.igtity God, tbe Prince of Orange, and to om.'
lotber, in defense of it, never to depart Inm
until our religion, our laws, and our liber
ea, are secured," etc P. 6, » b. Writs of
election were issued for tbe election of tatm-
hers of the convention, "of such k number *t
persons to represent them, ua from every iDCk
place is or are of right to be sent to Pariia-
ment." 7, b, B, a. Alenibera having beam
elected, met and chose a chairman, and call«4
t)iemselVFS tbe "commons" (B, a, 11, a, 12, a).
"the House;" and "tlie present oonveBtioo.'
13, a. In tlicir piuceediuga tbey "i^ulnrf.
oemine contradicente" (10, a); dr«w np thr
heads of what they desinid (17, k) ; and agrad
» OovKanuiKT or trk tlniTB* SiAmi.
upon k joint deelantfon hj the two eonren-
tions (23, a), which, titter being Amended, vu
beaded;
"Die Mariia, 18 Febniaris, 1889.
"The declaration of the lords Bpiritual and
temporal, and commoni, usembled at Wpst-
minater." Vide I vol. Laws, U. 8. 7; 1 Journ.
ConK^27, 29, 312.
"Wberea* tbe late king, James the lecond,"
etc (enamerating Epecially tbe wrongs and
ftrjerancei) , "hsTing abdicated the govern-
ment, and the throne being thereby vacant"
(after atating the election of tbe members, pur-
■lutnt to the letters of tbe Prince of Orange,
proceeds), "and thereupon the aald lords,
•piritual, and temporal, and eoramons, pursu-
ant to their respective letters, and elections, be-
ing now assembled in a full and free represen-
9S*] tation of 'this nation, taking into their
most leriouH consideration the beat means for
attaining the ends aforesaid, do in the flnt
place (as their ancestors in like caaea have
usually done), for the vindicating and asserting
tbeir ancient rights and liberties, declare," etc
"And they do claim, demand, and insist, apon
all and singular, the premises, as their un-
doubted rights and liberties, and that no decla-
rations, judgments, doings and proceedings, to
tbe prejudice of the people in any of the said
premises, ought in any wise to be drawn here-
after, into consequence or example-" William
«nd Mary are then declared King and Queen
of England, ete- "And that the oaths here-
after mentioned, be taken by alt persons of
whom the oaths of allegiance and supremaoy
might be required by law instead of them; and
that tbe said oaths of allegiance and supremacy
be abrogated." The new oath of allegianoe
waa to King William and Queen Mary, In
the oath of supremacy is thia elause; "And I
do deelore that no foreign prince, prelate,
•tate, or potentate, hath or ought to have, any
jurisdiction, power, superioriLy, pre-eminence,
or aathority, eccleslaatical or spiritual, within
this realm. 10 Journ. Comm. 289; 14 Journ.
Lords. 124, IZG; 3 Ruff. 440, 442-
This declaration has never been misunder-
«tood in England; no lawyer or Judge has ever
hald that the two conventions were one, that
the people they represented were one, but the
contrary; the declaration has, by the assent of
ail, been taken to be wbat it says it ia in the
heading, the act of tbe lords and commons, aa-
sembled pursuant to their respective letters,
which w,tre addressed by the prince to the
House of Lords, separately, from tbe one to
indiTiduals merely. By the fundamental law
of the kingdom both could not form one body.
The lords represented the two estatPi of the
nobility and clergy; once lords, they remained
mo though tbe throne was vacant. They sat in
their own right, representing themselves and
property, as two estates or states of the nation
or realm, wholly distinct from the third estate
of Mat*; that estate waa the whole body of the
people, reprcKnted In the convention of the
commons. As there was no king, there oould
be no Parliament or House of Commons iu any
other capacity than in ■ oonnotton; thoae per-
•oDi who liad been members ol Parliament were
no IPBger so, benee the letter addressed to them
waa noi to assemble as a constituent part of a
partiameut, but to sail a eonveitkm, to be cobi-
posed of repreaentatlvee of the people of tha
countries, etc., to be elected hy the same elect-
ors of the several places who voted for mem-
bers of tbe House of Commons, and for th*
same number. Thus tbe estates of the kingdom
remiLined distinct as before, when there existed
a Parliament in ail its parts; the two conven-
tions acting separately and concurring In opin-
ion, made one deelamtion, to which they nod
separately agreed, as separate conventions, who
vreie a full representation of the nation, of tbo
three estates thereof, lords spiritual, temporal,
and commons. They did not represent tbe
head of the state, tbe king, because there was
none; henoe they used the term nation, not
kingdom, oa there could be none without a
head, nor estates *of the kingdom, when ['fit
for the want of the executive power there was
DO government in exietenoe. But thoae three
estates embraced tbe whole nation, in all its
component parts, though not the state in it*
supieme corporate capacity (1 Bi. Com, 147);
yet parte of the nation, empire, or the realm <1
Bl. Com. 242), consisting of the clergy and no-
bility or lords, and the people, or cooimons, who
were the nation. Now it is moat strange that
when we compare these proceedings with those
which commenced In the colonies in 1774, from
the first aasembling of Congress till they made
"a declaration" of rights and wrongs, and ea-
tered into "an association," preparatory to a
revolution; and from that time to July, 1T7<,
when the Revolution being elfpcted, and the
colonies had in fact become States and made
"the unanimous declaration of the thirteen
United States of America," announcing that
fact to the world; that both declarations pat-
terned from tbe declaration of I0SS, through-
out, and in many ports copied, should be taken
to be the declarations of one people in a oon-
^ss representing one nation, instituting a na-
tional government thereof; and not as tnirteeo
colonies or Slates una animo, declaring each to
be a free and isdepeiident State, when the name
of each was affixed, signed by tbcir separate
agents, calling themselves their representatives.
It is equally strange, when in I7B1, the sanie
States hy "articles of confederation and per-
petual union" between them, naming each, en-
tered into a confederacy or league of alliance,
the style of which waa "the United States of
America," the second article whereof declared,
"eaeh State retains its freedom, sovereignty,
and independence, and every power, jurisdiction
and right which is not by this confederation ex-
pressly delegated to the United States in Con-
gress assembled;" and by tlie Uiird article, ''the
said States hereby severally enter into a firm
league of friendship with each other," etc; that
there then existed an unity of political power,
in the people and government of oiK- State or
nation, compounding the people, and power of
all the States into one from 1770, so that no
particular State had any power, right, or juria-
diction to retain to itself, or delegate to the
United SUtei. It is stranger still that it
should be asserted that Congress acted a* the
representatives of one people. State or nelioo,
when it is an admitted fact that the first ru]«
adopted by the Congress of 1774, was, "Re-
solved, That, in determining questions in thi»
Congress, each colony or province shall have
one vote." I Journ. II. So it continued till
Obmot mmb Hatdix or thb CnmtTDTUUi
the eonfcdarfttton whlt^ declared "each State
shkU ha«e one Tote" (1 LawB U. 8. \4), and ao
It remaloMl till tbe old Congreia wai diBHolved
In 1788 by the adoption of the CDnatltutioii by
nine Statea, each having one rote In a oonven-
tlon of the people thereof.
If there can be a political truth, it would
Men to be tbii, that Where, in a bodj eompoaed
of ■ixtj'flve memberi, there could be only thir-
tsan votei i! all the States were preunt, and
there mnat be one vote leu for each State that
« abtent; that the body did not, and oould
f 0'] "wrving for the whole realm," nation, *or
State. They were a mere eongreaa of Statea,
eoloniei. or province*; the l^itlature of each of
which waa the leparate conatituent of ita own
deputies, or "ambaasadora," who mve the vote
of their "aovereign," and not their owni and,
therefore, oould by oo ^litlcal poaaibility be a
legiilature In any political Miue, aa the repre-
aentativei of a people in their aggregate eol-
lectlve capacity.
unwarranted theory, or extravagant doctrine.
U ia in the application of the remarki of Mr.
inattce Blackatone (in 1 Bl. Com. 158, 15B] be-
fore quoted, aa to the people of a anall atate,
aueh aa "the petty republica of Greece, and tbe
flrat rudiment* of the Boman atate." There,
ha aaya, the people legiitated "In their aggre-
Ete or oollective capacity;" which term he uaee
contrast with legialative powers ezerciaed by
representation of the people in a large ttatei
the power ia the same in the people of a larn
or amall state; the only difference ia in the mode
of it* exercise: in the Latter ease it lain their
primary aaaembliea, In the former by repreaent-
ativea, elected to act a* their agcnta by their
authority. Now, when we find a term uaed in
reference to a petty state, whose whole terri-
tory was not aa large aa a county in one of
the States, or ita population equal to many
bouDdlesa extent, the utter fallacy of
proposition founded upon it is aelf-evident. It
never hoa been true, in faot, that tbe people
of any of the State* aasembled to make laws
in any other wny than by representation; tbe
people of Athens would meet at the Areopagua,
and of Rome at the Capitol, to malce laws or
decreea; but tbe people of England or the Unit-
ad Statea oever ao met. When their action ia
ia their primary aasembllea, as an aggregate or
•olleetive body, it ia, and always has been, ei-
ther to exprea* their opinion, or exercise the
elective franchise in chooaing tiietr repreeenta-
tivcB; this is done, as Blackatone aaya, in dea-
isnatcd districts; for, in a large State, the peo-
ple muat do that by re preaent stives, which tbey
eauBot do in personj that ia, legislate by their
duly selected agent*, and not personally. No
lawyer In Weatminster ilall would venture to
■Mart, that the ordinances of the convention
of laes wa« the act* of the people of the
Ungdoffl, in their "aggregate or colleotlTe «a-
paoitjt' M tbe people of Athens or Roma.
SSf"'
' when In an asaembly, they would put down CM
ruler and appoint another, or change thpir form
of government. No commentator on the eon-
atitution of England haa ever conFoundpd the
action of the people of a county or city, in tbe
election of the membera of a convention, witk
the action of the convention by Ita ordinances;
and no theoriat has been hardy enough to take
the poaition that when the people act in a con-
vention of their representattves, they act at tba
Hme time in their individual capacity. In Eng-
land, at least, there ia an agreed distinction be-
tween the constituent 'and the agent; [*<l
between a body oompoaed wholly of oonatitu-
•nts, and another body of mere agenta; be-
tween electing the agents for ordaining a fun-
damental law, and ita enaction by thoee agenta
under their delegated authority. There, too,
the nature of a representative Kovemment ap-
pears, in the opinion of their junats and statet-
men, aa it does in its practical operations; fact,
principle, and theory, point to the same originil
BourOB of power; and "no political dreamer"
thioica of compounding the people or the es-
tates of the kingdom Into one macs, or one es-
tate. Their unwritten conslitution ia clearly
understood; the powers of all corparHtions or
bodies politic are accurately dejined, whether
they relate to government or other matters;
and voluminous aa the reporta of their judicial
proceedings are, we seldom aee one which in-
volvM a question of oonalitutionat power, in
any department or office of government.
Uow different the case ia here needs no far-
ther explanation than what is afforded by our
judicial and political history; we have not ^ct
attained a knowledge of the power on whieli
the federal government reata; the meaning ot
tbe preamble of the Constitution ia unsettled.
and aa we trace it to the bodies which adopted
it, the diiriculty thickena. A gieat question ii
at the threshold, and muat be removed before
we can examine the iutcrior of the structure.
All admit, that in fact, tbe Constitution was
established by the ratification of the people of
the several States, in separate conventions or
representatives, whom they elected in the re-
spective oountica: yet the prepoiideranoe of
political and professional authority is in fuvoi
of the proposition that it was the act of thf
people in their collective ciipacity. Wlien tbii
shall become settled doctrine, It will be seen
bow much better tbe nature and acienee of
government ia now understood than it haa bcea
in England; and was understood by the con-
gressea and conventions of these SUites, from
1774 till 1787. It will also illuetraU the happy
effects which flow from the great fundofflentat
principle of the American system of guvem-
ment-— the certainty of a written eooatitutioa.
The Congresa of the Revolution and the ceo*
vention of 1787 were ignorant of any other
legislative power than that of the aepaiate
States. It is attributing to the memhei* of
Congress in 1777 the moat utter and profound
ignuranoe of the nature and powers of the gov-
emment of the Revolution, whieh they thca-
aelvea administered for five yeara, if it wu
aueh an one as oommentators now hold it to
have been. In the letter reeooimending it to
tbe States to adopt the artiolea ot the omfader-
ation, tbey aay, "fivary motive calls upon m te
haaten Ita oMtcluaion;" "it will add mvf^
BiUdwIr-
Am QotBRUDrr or i
■sd mpoet to our ooundb At home, and to oiir
traatlei abroad." "In ibort, thia ulutary
B«a*ui« can b« no looger deferred. It uems
cMential to our ver; exiitenoe aa a tree people,
atid without it we maj *oon be coiutrained to
b[d adieu to independence, to littertj, and to
aafety," etc I Iawb U. 8., 13. The remedf
waa far worse than the diseaae, according to
modern theory; but the practical itatesnten
and jurista ol the day deemed it of vital im-
portance to have a government in form,
SI*] 'though utterly defective in aubatanca
and execution. Bad aa it waa, it was better
than none; a line of duty was preacribed to
the States; if they did not follow it, it waa not
ttecause it waa not ptaio; whereas, before, the
only line was drawn by the States themselvee
in their a^parate instructions to their detegatee,
or in acting on their recommendation. When,
too, it Is recollected that Congress asked for the
delegation of the shadow of power by States,
when, according to the commentary, they had
tbe aubstance already, i>T dele^tion from the
people; the men of the Revolution were either
Ignorant in what a government consisted,
the expositor! of their acts have made o
which never existed but in their own fancy.
The eame remarks will apply to the membcn,
or the Convention of 17B7, if we so take the
words of the preamble of the proposed consti-
tution as to be a declaration that the political
existence and or},'anic power of the aevernl
States and people, had liecome so amalgamated
into one body of supreme power, u to make it
the aole grantor of the powers of the federal
government, and competent to restrict the
States, and control existing State constitutions.
Tbeir letter to Coiiijresa, and of the latter tu
the aeveral Stale legislatures, asking separate
conventions of the people in each to ratify it,
waa an act indicating political fatuity, if the
instrument contained, and waa intended to be a
declaratiuo that when ratifled by such conven-
tions of nine States, and thus established, it
w*s not "by the people of the several States,"
bat of all collectively.
It would alao be an imputation of political
treachery to the Btatea, who were the constitu-
ents of that convention to draw up a frame of
government, which In all its provisions explicit-
ly declared the separate existence and action of
*'UM people of tbe several States, and of each
StAte," in all the movements of the govern-
ment. In alt time, in language admitting of no
two fold interpretation; and then prellzins to
it a declaration, by which the States, in toelr
moat sovereign capacity, in separate conven-
tions of tbe people, are made to admit and ao-
hnowledge that "the absolute sovereignty" in
BMitters of government, was not, and from
Julj. 1776, had not been Invested In the people
of Uie separate States; and that they liad, at
Iba adoption of the Constitution, only such
^residuary sovereignty" as remained after a
pAniniount power had made a supreme law
owr them. Had the convention so announeed
ft to the Congress, tbe legislatures, or the peo-
ple of the States, in proposing its ratification,
then would bava been a fifth unanimous Am-
I UHiiBt Srana. tl
laration of the rights of the Btatea and people)
not only of rights, but of wrongs and grwT'
anees, more sf^ravated than those whi<£ led
to the Revolution, because they were attempted
by their own representatives, in violation of
tlieir instructions. No State convention wonld
have convened; Congress would have at once
rajeeted the propoaition, and in the name of
each State declared, non in heec fcedera voia-
mur; they would have 'pointed to their [*CS
four declarations in October, 1774, July and
Decembor, 1775, and July, 1778; to the articles
of confederation, and their State constitutional
as so many denials in ttie most solemn forms, of
the proposition submitted. It is not credible
that when the power of Parliament to legislate
I'ur colonies who avowed allegiance to the king,
was utterly denied, even under the British eon-
jtitution, the authority of which was universal-
ly admitted; the free and independent States,
who had eleven yeara before renounced their
lUegiance to the crown, and abolished their old
Constitution, would have adopted a new one
which left them less free in legislation than
they were in their colonial condition. After
Lhrowing off the pack put on their backs, while
boys and children, as parte of the family of one
ijommon father, by an usurped power of legis-
lation; they would not, as men, and as free-
men, emancipated by their own acts, take up
another pock, still heavier and more grievous.
the Supremacy of the Constitution over States,
Greater than Parliament over the Colonies.
Parliament never asserted ti; the plenitude
<jf its omnipotence such powers of legislation
uver the coloniea, or attempted to impoae such
restrictions on colonial or provincial legisla-
tures as are exerted by the Constitutioo ; and if
it ia a supreme Inw, overriding State constitu-
tions by any other authority than that of the
people of each, without and against their con-
sent, it is one more sovereign over them than
that which they threw oS by the Revolution.
Every principle by which it was conducted,
every object sought to be attained, waa reversed
and frustrated; if, in 1787, the States were not
in that "separate and equal station among the
powers of the earth" which they aasumed in
1770, and did not then each retain all powers
whldi they had not expressly delegated to tbe
Congress of 1781. Every State constitution as-
serted palpable falsehoods, and the people
thereof exercised usurped powers, if the Sole
right of instituting any government over them
waa not in themselves alone. And thus, evei?
Bolemn act and written document of the Con-
gress and the Statfs for thirteen years will be-
ooToe utterly falslQed, if the "power, right,
and Jurisdiction" of the federal government,
and the authority of the Constitution ia not by
Snt from each State, of what all had so often
la red to l>e inherent in the people thereof,
by original right, and which it had hitherto re-
tained. If these powers were in the whole
people of the United States, as one "single
sovereign power," from 1774, till 1787, that
power still exists in its original plenitiklej maA
the jiirl^PB of this and all StaU courts are
bound tu otiey and expound it as the grant ol
that power, spealiing in its words and express-
ing tbsrdij its intention, m the grantor in
OsKim AMD Natou ov tbk ConsnTunoK
•4"] •The Effect of Taking the ConBtitution u
a Gr^nt by one People.
If the ConBtitution was only k grant of
power, it would be of little importance to In-
Slre whether it was to be considered aa made
the one, or the aeparate people of the State*
who adopted it; for it* obligation on tboM
States would be unqueationed. But the Im-
portanee of the question arisei on the reatrie-
tions and amendtnents, wliether a State r«-
■tricti itself, or is restricted by an external
power; wlielher the reKrva.lionB are to the peo-
ple collectively, or the people of each State.
And it must be remembered that the t«rmi of
reaertation in the lOth amendment make no
change in tlie Conatitution in virtue of the
amending power in the Stb article; it is a decla-
ration by the grantor of the mtianiiig and effect
of the grant and prohibition, which none but
the granting power waa competent to malce.
Hence, it is neccaanry that there should be,
flrvt, a competent power to grant the thing
grauted; and next, the grantor must have com-
petent power to prohibit and restrain States
and State laws; to make exceptions to the
granta and restrictions, and to reserve to itielf
all other powers not exercised by the grant:
and ai B can make no exception or reservation
out of a grant made by A, all these powers
must be original in the one who was competent
to make the grant. If it is in A, the grant
throughout )>eing his act is easily construed as
one deed, with ila various clauses; which, when
referred to one person, whose intention it ex-
presses, is taken us a simple, plain writing, the
one part wfac^reof explains the other, by refer-
ence and established rules. But if the grant is
taken to lie the act of A, in granting certain
things to C, restraining a previous or subse-
quent grant by B to U; declaring what B or D
may or may not do; and there is attached to
the grant a proviso or defcassnce by B, that
what is not granted to C, or prohibited to B
and D, sliall be resei'ved to B or D, the whole
is unintelligible. The exceptions and reserva-
tions being of original right and title, which is
vested in A, are void and inoperative if not
made by A himself; they remain in him, and
cannot pass to B or D without direct grant: of
consequence, the grant becomes disencumbered
of any exception or reservation, and must be
taken, by all the mica of law, as if it contained
none in terms. Taking, then, the Constitution
as the grant of the one people to Coogreas, im
poaing restriclions on the Slates acting in the
legislatures thereof, and the people acting in
convention; and the tenth amendment operat-
ing as a proviso or defeasance on every part
thereof, not as an actual or intended alteration
of any of its provisions, it must follow. That
as it was made by a power suliordiDate to that
which ordained the Constitution, it was incom-
petent to except or reserve anything out of, or
from it, to the people of the several States, if
tbey are not the gruntor; or to the Statea re-
spectively, if each was not a grantor. Not
being parties to the' grant tbey are strangers to
it, and no principle of law is better settled than
that aa exception or reaarvatioD to a atrangor
is void: It must be to the lessor, donor, at
'feoffor, and his heirs, who are privy in [*•■
blood, and not to any who is privy in estate, t*
to him in possession, remainder, reversion, etc
An exception is of lomething out of that wfattfa
the grantor had granted before by the deed
(Shep. Touch. 77): a reaervatloD doth always
reserre that which waa not before, or abriw*
the tenure of that which was before. (lb. M),
and sometimes it has the force of a saving or
exception, to reserve a new thing, or except
into the exceptions and reservations; so aa to
make the reserved powers a part of what was
in the people before the grant, or aoinethini
excepted from it.
The Effect of an Exception or Reservation In a
Grant.
No jurist has ever questioned the umvenal
application of the maxim, "poterit cnim qnis
rem dare et partem rei retinere, vel partem d«
pertinent ibus; et ilia pars quam retinet semper
cum eo est et semper fuit." Co. Litt. 47, a.
Whether the words operate as an exoepUoi
or reservation, the effect is the same; the pact
or thing excepted or reserved, always is ia
the grantor, and always waa; and the tnaiiia
has been adopted by this court in its oommoa
law meaning, by the words of the grantor, de-
noting bia intentions, and to be constnted ac-
cordingly. 6 Pet. 3, 10, 741; 4 D. C. D. 2M;
Fait. £. 8.
It is then a necessary cousequenoe of thoaa
rules that the people nt the several States have
now no reserved powers, or that they are the
granting power of the Constitution; and as
grantors, could make exceptions to the powers
of Congress to their own reserved powers, and
reeerve what was not so granted or excepted.
.\nother rule results from the preceding ones,
which this court lays down as one *'to which
all assent," that an exception to an^ power
proves tiiat in the opinion of the law-giver, the
power was in existenoe had there been no ex-
oeption. 12 Wh. 438, 439; 0 Wh. 206, 207, 811
The exception marks the extent of the powa
49 Wh. 191); the thing granted is ascerUintd
by what is excepted or reserved (8 Pet, 310.
741 ) ; an exception will not be inserted by con-
struction (4 Pet. 462, 463); but shall be Ukea
strictly against the grantor [4 D. C. D. 890).
and "an exception out of an exception, leaves
the thing uneicepted." lb. Fait. E. 7.
By keeping in view these unquestioned rules,
it is easy to understand the Constitution in all
its parts a* a grant, and by so considering it,
we can trace the true grantor in its provisiOM,
its history, and the political situation of tka
States at the time of its adoption, and baeic to
their colonial condition. If by ao doing eer
tainty can be attained, no labor can Ui too
grfat; nor can time be deemed useleasly «b«-
ployed if it leads to satisfactory eoncluaiana M
a subject so important.
AKD QoTOitHEirr or thk UiimD Biatm.
••*] The Natnra and Ortrin of the Federal
Govennnent, •■ Declared by the ConveiitloD
•t tTBT uid b7 thia Court.
The politick! blatory of our country pmenti
k DArraUre of one continued ctruggle between
the Statea and the confedeimcjr, either for t«ni-
toi7 or political power.
At an earlj period of the war of the Benila-
tion, the queation whether the vacant land*
which la; within the boundaries of particular
Btatea belonged to thera eioluaively, or become
the joint propertj" of all the States, waa a mo-
mentous one which convulsed our confederacy,
and threatened ita eiiatenee; but It haa been
flompromiaed, and is not now to be diaturbed.
• Cr. liZ; 5 Wh. 378. It waa aettled by cxa-
alona by particular Statea, and the adoption of
tbe articlea of confederation. Vide post.
When that waa done, the question of power
arose out of the incompetency of Congreaa to
•ffectuate the objeeta of ita adaption; the col-
liaion of opinion waa not what were the rela-
tive powers of the several Statea and of CoQ'
gMM; for It was then admitted that what was
Bot expressly delegated was retained by and
mained In each State. That a new government
was ueceaaary was the universal opinion; but
the difficulty was in agreeing what additional
powen shoi^d be given to Congreaa by the aur-
render of tbe States; no stateaman or jurist
pretended that thia could be done in any other
way than by the voluntary act of the separate
States, in their sovereign capacity, by the peo-
ple in convention*.
This difficulty did not cease by the unanl-
rooua act proposed by tbe ^eral convention.
La their letter submitting it to Congresa we
And Ihem stating the aame reasons wnich em-
barrassed their action, and long delayed Ita
nitiScation by the States. "It ia obviously Im-
practicable in the federal govemmenc of these
States to secure all rights if independent sover-
eignty to each, and yet provide for the Interest
and aafety of all." "It is at all times difficult
to draw with precision the line between those
righta which must be surrendered, aod those
which ma^ be reserved; and on the present oc-
caaioQ, this difficulty was increased by a differ-
•noe of opinion among the several States as to
their situation, extent, habits, and particular
Interests:" and thus the Constitution which we
present is the result of a spirit of amity, and of
that mutual deference and concession which the
peculiarity of our political situation rendered
Lidispenaable." 1 Laws U. B. Tl.
There can be no misunderstanding of the
meaning of this letter, that thti convention had
proposed the frame of a "federal government
of theae Statea," to be created by a surrender
of the necessary powers by tbe several States,
to be made by the people in separate conven-
tions; so as to make the Constitution para-
mount to those of tbe States, and not leave tbe
power* of Congreaa dependent on a grant by
the Legislature, which the people could revoke
or change. Bo It haa been considered by this
-*™~* h> a most elaborate opinion. "Thia mode
manner In which they can act, Mfely, eff«etlv*>
ly, and wisely, on auch 'a aubject, by asMm-
bling in convention; it ia true they aaaembled
in their several States, and where else should
they have aasembledl No political dreamer
was ever wild enough to think of breaking
down the lines which separate the States, and
of compounding the American people into one
oommon mass. Of consequence, when they act
they act In their States. But the meaanrea
they adopt do not, on that aooount, ceaae to ba
the meaaures of the people themselvea, or be-
come the measures of the State governments.
From theae conventions the Constitution de-
rives Its whole authority. The assent of the
States, In their sovereign capacity, is Implied
in calling a convention, and thu* submitting
that instrument to the people. But the people
were at perfect liberty to accept or reject it,
and their act was final. It required not tbe af-
flrmanoe, and could not be negatived by the
State governments. The Constitution, when
thus adopted, waa of complete obligation;
bound the 8tat« sovenignties, and the eovem-
ment proceeded direetly from the peoj^e." 4
Wb. 403, 404.
Neither in this or any other opinion of the
late Chief Justice, will there be found an ex-
pression like that of "tbe people In their ag^-
gate or collective capacity," heln^ the constitv.-
ent power of tbe government: it will not be
found any act of any State legislature, con-
vention, or Congress; while every declaration
by either asserts all power to be, and to have
been. In the people of the several colonies or
State*. BveiT fundamental principle of that
govenunent, from which all ours have bc«n
of proceeding was adopted, and by the conven-
• T*] tion, by Congress, 'and by the State leg-
UatursB, the instmmeut was submitted to the
DMole." '"They aatad apoa it In tbe onljr
representatives, einlodes the doctrine. So, too,
the ooncurring declarations of this court, sulB-
eientty numerous to establish a code on any
ibject, have Indicated and made viaible
create government. In one of their opin-
ions, delivered twenty-five yeara aince, tney
little Imagined the present clouds which hang
over the knowledge of those bodies, in which
that power was vested. "The courae of reason-
ing which leads to this conclusion is simple,
obvious, and admits of but little illuatration.
The powers of the general government are
made up of concessions from the several States;
whatever is not expressly given to the former,
the latter expressly reaerves." 7 Cr. 33; Ths
United Statea v. Hudson and Goodwin.
It ia but reasonable that this coincidence be-
tween the terms of the instrument, the cotem-
poraneoua declaration of those who framed it,
the action upon it by Congress, State legisla-
tures and conventiona, and the exposition of all
that was done, as ^ven by this court, would
have led to the universal conviction that the
words and terms used were int«nded and must
be taken In their declared aenae. But as it has
not sufficed to produce thft effect, it becomes
indispensable to recur to those acta of the
coloniea, the States, and Congress; from
'which the conclusion haa been drawn ['AC
that the grantor of the Constitution waa sot
the people of tbe several Btataa.
ff«
OfliODi uiD Katube or thk Cokbtiiutkui
Tht Proceed Inga of tbe Congrcai of 1TT4.
The Declaration of the Bights of the ColooJea
and ColonieCa.
Fram the preceding view of the colonlee prior
to 1T74, and while the ancient relations be-
tween them and the mother country continued.
It U moat manifest that they were aa aeparate
from each other in all matters of Internal goV'
•nunent aa the; now are. Their only political
connection waa bj their unton under one com-
mon sovereign, as It is now under the Con-
stitution; their gOTernments were in TJrtue of
•eparate charters then, aa they are now under
their several constitutions; and no one, or any
number of colonies, had any more power with-
in their limits than the States have now. No
other controlling power did, or could exist
then, under the old constitution of the kingdom,
than doe* now under that of tiie Unioa, save
•ucb aa it impoaed.
Though they had aasembled in Congreaa to
consult on their common eoucerne, they had
never made a government over themsetves; and
when they met in 1774, their proceedings
showed in what capacity they acted- They
Srst resolved that each colony should have
one vote, which was an explicit declaration that
tbey acted separately in all they did; their dec-
laration of rights and resotutiona are also too
unequivocal for any double or doubtful mean-
lag to be attached to them.
After reciting the grievances auHered in cou-
tequenee of certain acts of Parliament and of
the crown, tbey declare the character and au-
thority under wbich they act. "The good
people of the several colonies of New Hamp-
shire, MasBachusetts Bay, Rhode Island and
Providence Flantationa, (^nnecticut, New York,
New Jersey, Pennsylvania, New Castle, Kent,
and Sussex on the Delaware, Maryland, Vir-
^nia. North Carolina, and South Carolina,
justly alarmed at theae arbitrary proceedings
of Parliament and administration, liave aeveral-
ly elected, constituted, and appointed deputies,
to meet and sit In the city of Philadelphia, in
order to obtain such eatablibhment as that
their religion, laws, and liberties, may not be
subverted."
"Whereupon, the deputies, so appointed, be-
ing now assembled, in a full and free represen-
tation of these colonies, taking into their most
serious consideration the best means of obtain-
ing the ends aforesaid, do, in the first place, as
Engliilimen, their anceatora. In like cases have
uaually done, for asserting and vindicating
their rights and liberties, declare." Vide ante,
p. 44.
"That all the Inhabltanti of the English
eolonlee in North America by the immutable
laws of nature, the principles of the English
constitution, and their several charters and
sompaeta, have the following rights:"
"Keaotved, N. C. D. I. That they are enti-
tled to life, liberty and property, and they
have never ceded to any foreign power what-
ever, a right to diapoae of either without their
6«*] consent," •"Resolved, N. C. D. 2. That
our ancestors who first settled theae coloniea
were, at the time of their emigration from the
mother country, entitled to all the rights.
UtMrtiea, and immunitiea of free and netural-
born iubjacta within the realm of England."
"Resolved, N. Q D. 3. That by raeh «■!•
gratfon they by no meana forfeited, or aurrei-
dercd, or lost any of these rights; but tkat
they were, and tbeir Jppendents now are, ^-
titled to the exerciae and enjoyment of aU
such of them, aa their local and other circuH-
stances enable them to exercise and enjoy.'
"Resolved, N. C. D. 4. That the foundatkM
of English liberty, anil of all free government,
la a right In the people to participate in thtit
legislative council; and aa the English coloniea
are not represented, and from tbeir local and
other elrcumatances cannot properly be repre-
sented In tbe Britiah Parliament, tbey are en-
titled to a free and exclusive power of legte-
[ation in their several provincial legislaturca,
where their right of representation can aJon*
be preeerved, in all eases of taxation and in-
ternal polity, subject only to the negative o(
their sovereign, in such manner aa haa been
heretofore used and accustomed. But from
the necessity of the case, and a regard to tha
mutual interest of both countries, we cheer-
fully consent to the operation of sueb acta •(
the British Parliament, as are bona flde ra-
straincd to the regulation of our external com-
merce, for the purpose of securing the com-
mercial advantages of the whole empire to tka
mother country, and the commercial beneflta •(
its respective members, excluding every idea
of taxation, internal or external, for raising a
revenue on tbe subjecta In America without
their consent."
"Resolved, N. 0. D. T. That these his maj-
esty's colonies are likewise entitled to all the
immunities and privileges granted and M«-
flrmcd to them by royal charters, or secured by
their several codca of provincial lawa."
"All and each of which the aforesaid depu-
ties, in behalf of themselves and their constita-
enta, do claim, demand, and insiat on, aa tbair
indubitable ri^ta and liberties; which cannot
be legally taken from them, altered or
abridged, by any power whatever, without
their own content, by their repreaenlativca in
their several pruvincial legislatures." 1
Joum. Cong. 28, 29.
An association was formed and signed bjtbe
members from the dilTerent colonics, beginning,
"We, his majesty's most loyal aubjecta, tbe
delegates of the aevcral colonies of New Hamp-
shire," etc., etc. "And therefore we do, fat
ourselves and the inhabitants of the screral
colonies whom we represent, firmly agree a^
associate under tbe sacred ties of virtue, konor,
and fove of country, aa followa." 1 Journ. SI.
The letter to tbe people of Great Britain was
headed in the same manner, and signed by tbe
delegates of tl^ several coloniea. I Journ. 39.
So were their other letters and addresses at
that time. 82.
These proceedings cannot be miataken in tW
distinct aaaertion that all the powers of gov-
ernment were vested in the several provinda)
'legislatures, aubject only to the re- {'7*
atraints mentioned in the fourth reaolutwn.
There was no State or nation, to which tbe
several colonies stood in the same relation as
the counties and towns of England did; tbey
had no aeparate powers of government within
a county, etc.; the aggregate population con-
posed the Slate or nation, so did tbe popntatioN
of a colony, so now doM that of a State. Tbe
um OovnniiBiiT or rmm Uhitbd Ei^ns.
■omitlN, oittra, ktid townibiiM tbareoF, axiat
«aly for local purpoKi, have nothlns to do in
matter* of goTenuoent, aiccpt to alact repra-
aentatiTeB to the LegiBlatura of th« State or
colonj to whose laws they are subject. Hence,
there can be no analogy between the people of
the different dletricta of a colony, who are the
people of the colony, and the colonies them-
■elvea in their political rapacity, and the peo-
ple thervof separated from all othen by terri-
tcrial boundariea. To unite them aa one ii to
arate the line of separation, and make me
colony and one legislative body out of tbirteen,
■eting by the power of one people, inhabiting
the former divisions, and the separate colonies,
•a merely the countiea of the one. Let us sup-
pose that in the Congreai of 1774, an addition-
al resolution had been offered to this effect:
"Beaclfed, S. C. D., That these thirteen colonies
are one nation, the people thereof one people,
and that this Congress la a national govern-
ment, as the repreaeutativee of the one people,
havinf; the power of enacting law* to bind the
■aid thirteen colonies and the people thereof,
without their separate consent;" it need not
be asked what would haTu been the result.
The Aat» of the Congress, the States and
People, in 1770 and 1770.
The ■[ririt and prindplea of this declaration
were adopted by the colonie* and CoDgresa. In
October, 1776, Congress, on the application of
tbe Provincial Convention of New Hampahire,
recommended tbeoi to call a full and free rep-
resentation of the people, to ealablish such
government as the^ thought proper, to con-
tinue during the dispute with Great Britain.
I Juurn. 206, 216. This was done in a con-
vention of the people in January, 1776, by a
eonstituttou which remained in force till I7S4;
daclaring the dlisolution of all connection with
the British government, and "assuming tlkat
«oual rank among the powers of the earth, for
wnieh nature had destined us, and to which the
voice of reason and providence loudly called
Ds." Vide 2 Belk. Hist. N. U. 303, 306. 300,
836.
The royal government had ceaaed in South
Gkrolina in September, 1T76, under the recom'
mendation of Congress In November (1 Jouni.
£19).' the peiipte of that State formed a con-
atitution in March, 1776, which all officers were
■worn to support, "till an accommodation with
Great Britain, or they should be released from
Ita obligation by the legislative authority of
tbe colony." 2 Drayton's Hem. 171, 188, IS8.
In April. 1776, Congreu resolved "that trade
was subject to such duties and impositions as
by any of the colonies, and such regulations as
Bay be imposed by the rrgpeetive legislatures,"
71*] etc., which 'resolution Congress directed
to be communicated to foreign nations. 2
Jovm. 117, 126.
la Hay they resolved "that every kind of
authority under the crown should be totally
Mippraesed, and all the powers of government
under the authority of the people of these
coloniM should be exerted. That it be recom-
■wnded to the respective asBembltes and con-
▼ention* of the united coloniea, where no gov-
anunant sufRcient to the exigency of their af-
fair* hath been hitherto established, to adopt
waA a government, as shall. Id the opinion of
the repreaeatativM of the people, beat conduce
to the happiness and safety of their conatilu-
ents in particular, and America in general." 2
Journ. 158, 166.
On the S4th of June they declared, by their
resolutions, "that allegiance was due to the
several ootonies, that adherence to the king
was treason against the. colony within whioh
the act was committed," and recommended that
laws should be passed for puniahing treason,
and counterfeiting the continental bills of
credit. 2 Joum. 217, 2ia.
In June, the people of Virginia, in full con-
vention, adopted a eonatitutiou, declaring that
alt power is vested in and derived from the
people, who have an indefeasible right to insti-
tute, reform, alter, or aboli^i government; that
none separate from, or indepenilent of that of
Virffinia, ought to be erec(«d or established
within the limits thereof; and that the govern-
ment, under the British crown, is totally dia-
Bolved. 1 Rev. Code Va. 1, 7. This oonalitu-
tion remained unaltered till 1830. Vide 1
Journ. Cong. 280.
On the 2d of July, 1778, the people of New
Jersey, in convention, decltircd the authority of
the crown to be at an end; Che royal govern-
ment dissolved in all the colonies; and adapt-
ed a constitution, to become void on a recoa-
ciliation with Great BriUln (Pat. Laws. App.
5; Book of Con. IM, 166), which is yet un-
changed. In June 19th, deputies from the
cities and counties of Pennsylvania, approved
the resolutions of Con^ss passed in May; re-
solved that a convention be called to form a
government on the authority of the people
only; and declared, on the 24th, their willing-
ness to concur in a vote of the Conf;re98, de-
claring the united colonies free and independ-
ent States: provided, the forming the govern-
ment, and regulating the internal police of the
colony, be always reserved to Ihe people of the
colony. Con. of Penn. 36, 33, 43. The con-
vention assembled on the 15th of July; the
Constitution was adopted in September, 1778,
and continued In force till 1700.
As there never was any other political con-
nection t)etween tbe colonies than such as re-
sulted from their common origin, by separate
charters from the crown, in virtue of the royal
prerogative, and the general supremacy of
Parliament, which extended to all the domin-
ions of Great Britain; it was a necessary
consequence of the extinction of t)oth the pre-
rogative and legislative powers of the mother
country that there could remain no restraint on
the legislation of the colonies, save what the
people thereof should impose. No extraneous
power could act, within their respective limits,
without their 'conaent: from the moment [*TS
that the authority of Great Britain ceased to
operate, that of each colony became absolute
and sovereign; and no government could exist
thereout, whioh could prescribe laws within it.
Such was the unanimous ezpres^on of the
universal sense of the people, in primary sts-
aemblies, in conventions of counties and States,
leginlaturea and Congress, from 1774: four
coloniea had become States by the adoption of
conBtitutTons of govemment by the inherent
power of the people; the formation of a fifth
was in progress on the same principles, which
were aolemnly promulgated by the original
•01
Otun un NAnnt or thk CoRaitnmoK
4«dfti«tk>B of the rights of the Hveral mIodIm
and th« p«ople thareof. In JniM, 17TS, there
wu oat a colony in which $,nf authority under
Great Britain wai exercised, except in war-
fare; and when GoDgress resolved thst al-
legiance wag due to the several colonies; that
treason was punishable in the colony wherein
the act was committed; and that the regula-
tion of trade was subject to the laws of the
respectlTe iegialaturei, it was tantamount tv
ft declaration that they were then Independent,
and had, In fact, "assumed their equal itation
among tbe powers of the earth." Congreas had
recommended that all the oolonies should do so,
by the establishment of a government on the
authority of the people only; four BtatM had
exercised, a fifth had entered npoa the exer-
ciie of this authority, and a convention of the
ate thereof waa assembled, before the
iration of Independence by Congress was
engrossed or signed by any membar. Vlda 1
Ddl. Laws, App. 64.
The Political Situation of the Colonies and
States Before the Fourth of July, 1770.
From these proceedings, the political results
were plain and self-evident; each colony, by
the uncontrollable exercise of all the powers of
self-government had in fact become an inde-
pendent State; five were so, by their declara-
tions of independence in the most solemn man-
ner. No sovereignty did, or oould exist over
them, unless that of Great Britain should be
taatored by a reconciliation ; which not hap-
Kning, their declaration of independence, in
sir separate conventions, became absolute;
and these States were independent according
to the universal opinion of the country, which
ia moat clearly expressed In the language of
this court. 4 Cr. 212; M'llvaine t. Cox. "This
opinion is predicated upon .i principle which is
believed to be undeniable; that the several
State* which composed this Union, so far at
least a> regarded their municipal regulations,
became entitled, from the time when they de-
clared themselves indc^ndent, to all the rights
and powers of sovereign States, and that they
did not derive them from ooncessions by the
British king. The Treaty of Peace contains a
recognition of their Independence, not a grant
of it. E^om hence it results that the laws of
the several State governmenta were the laws
of sovereign Statu, and aa such were obli-
gatory upon the people of such States from the
time they were enacted. We do not mean to
intimate an opinion that even a law of a State
whose form of government had been organized
73*] prior to the 4th of July, 1776, *aiid which
passed prior to that period, would not have
M«a obligatory. The present case renders It
unnecessary to be more precise in stating the
Srtnciple, for although the constitution of New
ersey was formed previona to the general
declaration of independenoe, the laws passed,
OB the subject now under consideration, were
posterior to it." They wsre for the punish-
ment of treason against the State.
The Declaration of Independence.
Such being the political oondition of the col-
miea and States, it becomes a question of easy
•olutlon whether Congress intended to make a
•olemn promulgation of these principles to the
world, l>^ declaring the great result of the
'volutitn to hftve bean, or to ba^ Uia astab-
liahment aad eontlnued «Klit«Me of tUftMa
independent nations and Statea, wiUi the
powers of government separate and aorerdgi
In each, or of one nation, one State, with ons
national government. Whether this great and
orowning act of the Revolution was intended
to perpetuate, or prostrate, the ri^ts and
powers of the colonies, the States, and ths
people thereof, and to substitute one govera-
ment, in place of thirteen then in exiatenea.
To abaolve tbe people of those States not only
from their allegiance to the British crown, hot
from that allegiance which Congress, ten dan
before, had resolved the people owed to tls
several coloniea; to abolish as well the royal,
aa the colonial and State governments, within
the boundaries of the United States; to faf-
press alike the British constitution, and thoas
State constitutions, which, two months before,
they had recommended to be formed by the an-
tbority of the people of the several coloniea
alone; to proclaim to foreign nations in April
that the power to impose duties, impoaitiona,
and regulations on trade, was in the respectire
legislatures of the colonies; yet, in July, to
declare to the world that the power "to eatab-
lish commerce," etc, eziated u) one State, in
one government, acting ovor all the States in
their unity of political power, aa the repre-
sentatives of one people, of the one Btate.
Taken in this sense, there must have been two
American revolutions — one to suppress the gov-
ernment of Great Britain, tbe other to suppress
the governments of the States— each of which
was by the right of revolution; for there is do
more pretense of any authority by the people
of the States, or in the credentials of the laem-
bers of Cougrsss, who were appointed by
colonial or State legislatures, to abolish State
^vemments, and constitute a national om^
mvested with supreme legislative powera over
all the States, than there was by the king and
Parliament to abolish their supreme icpa-
lative, or prerogative powers, by any act of
the several colonies or States, or when they
were assembled in Congress by their deputies.
The States, by their several representativso,
effected the first revolution In an assembly of
the States; the Congress effected the second hj
imposing on the States — people, a new sov-
ereign— themselves. Taken in the other sense,
the declafktion of Congress, on the 4th July,
177S, announced one great revolution, on tbe
great principles soiemnly declared In 1774, and
reiterated in every political movement by th*
people, whenever 'they expressed their [•T4
opinion. In large or small popular assemblages,
or through their representatives at home, or
those deputed by their local legislatures to c^-
suit, deliberate, and resolve in a Conyeas.
Congress could declare the existing politteftl
condition of the colonies and States, aa thrir
delegates or deputies: but as Congress woa not
a convention of the people, nor had that body
any pretense of power to alter the extating
state of things — to assume to thenuelvva any
legislative power, or take away any fron "
atedTnth
than by an usurped authority. Its Tcry fnwt
is stamped with an impresidan of iutentioB
which cannot be mistaken.
"In Congress, July 4th, 1778.'' VMa aiit«,44.
"Ihe ananiiBOttS declaration of the thirtae«
Baldwt&
» OovnifiiBn or thk UnmRt Brt-tta.
H
VaHti 8t»t«B of Aneripft." It dn-Urm Mlf-
avident truthi; the right uid power of the
people, to Blt«r &nd abolish existing goTeni'
ment, tai to institute new Kovernment, on such
SrineipleB, Mid organiEing it> powera in aueh
>rm, u to them ih^l wem most likely to
•Sect their ufety and happincu; it teta furtlt
the grievancet of the eoloniea. and eoncludps
thuBi "We miut, therefore, acquien^e tn the
necewitj which denounces our separation, and
kold them UB we hold the rest of mankind,
■nemies in u-ar, and in peace, friends."
"We, therefore, the repreaentatives of the
United Slate) of America, in ge[,erBl Congress
»aaembled, appealing to the Supreme Judge of
the world for the rectitude of our intentions,
do, in the name, and bj the authority of the
goixi people of these colonies, solemnly publish
■ad declare, t1ia.t these united eolnnies are, and
of right ought to be, free and independent
8Utes; that they are absolved from all aUe-
sianee to the Britiih crown, and that all po-
Htical connection between them and the stats
of Great Britain, is and ought to be_ totally dia-
■otved; and that as free and independent
Stntes, they have full power to levy war "~
elude peace, oontract alliances, eitablish
nierce, and to do all other acta aud things
which independent States jnay of right do.
And for the support of this declaration," etc,
etc.
An unanimous declaration of the thirteen
States must nacesaarily m«
ftction between separate States, in declaring
their separate rights. It was a self-evident
truth that the "one people" of each State,
could alter, abolish old, and institute new gov'
eminent at their pieaiure; ' ' "
selt-ev^
d«nt a falaehood to declare that
could do ao for another; or that the people of
any number of States oould, in any way, con-
trol the power of any single State. It would
be equally untrue that Congresa held or could
exercise the power of llie people in relat'on tc
government, either aeparately or collectively [
all their votea, aote, and resolutions, were by
States; not per capite, as a body representii
w legislating for one people. They profes»
to declare only what did exist; not to alter
or abolish any present, or to institute any new
government. They declared these united col-
onies to be independent States, not one State,
75*] as the "Bute of Great "BriUin;" that
tbey are absolved from all allegiance to the
British crown; hut did not declare, that the
■cople of the several States were absolved from
their allegiance to their Stale, or held tbem
bound to allegiance to the United States, aa
a. SUte.
thirteen Colonies Became Tbirtasn States,
Each Sovereign Within lU Territorial
Boundary.
It reamined still a self-evident truth that by
tbe absolution of all allegiance to the crown,
and the diasolution of all political connection
between them and the state of Ureat Britain,
tbe thirteen United colonies became thirteen
United States, in consequence thereof; and that
as free and iadepenileat States they had tbe
powers declared, as the necessary result of each
eolony having them, or previuualy, become freed
of all restraint, by the r«novaI ol all incum-
brance on their Independence. Thlx was Iha
meaning of their separate declaration of In-
dependence, aa declared by this court in Coxe
V, M'llvaine, "that the several Stales from tbe
time when they declared themselves Independ-
pnt," were entitled to all the rights and
powers of sovereign States, It would be
strange, indeed, if, by their afterwards uniting
with the other States, in their unanimous
declaration In Congress assembled, they had
lost their separate independence, were again
dependent, and ceased to hold those rights and
powers. This court has expressed their opinion
Id the contrary in Harcourt v. Gaillard, 12 Wh.
520, 627. 'There waa no tcrrilor^v within the
United States that was claimed in any other
right than that of Bome one of the confederated
^tatcB." "Each declared Itself sovereign and
independent, according to the limits of their
territory." Georgia insisted on that tine (the
thirty-first degree of north latitude) as the
limit which she was entitled to, and wh<ch she
had laid claim to, when she declared herself in-
drpendent; or which the United States had as-
serted in her behalf, in the Declaration of Inde-
pendence. "The Treaty of Peace" has been
viewed only as a recognition of pre-existing
rights, and on that principle, the soil and sov-
ereignty within their [the States of South
Carolina and Georgia) aeknowledtted limits,
were as much theirs at the Declaration of
Independence as at this hour. So, in The
Dartmouth College v. Woc^dward, 4 Wb. 631,
this court say: "By the Revolution, the duties,
as well as tbe powers of government, di'volved
on the people of New Hampshire. It is ad-
mitted that among the tatter was compre-
hended tlie transcendent power of Parliament,
as well as that of the e.ipcutive department."
If the authority of thif court is respected,
the DeHnration of Independence is to (he u-
dicial mind what it is to the common eye —
a pvoclaniutinn to the world, by the separate
States Bsscmhled in Congress by their respec-
tive deputiea, voting for, and signing . the
instrument by States; a publication ofthcir
existing political condition, each as an inde-
pendent State, the prople of cncli, ''one peo-
ple;" the Slate on an equal footing with the
other powers of tbe earth, united in a common
struggle against oppression. The voice of the
people, whenever and however expressed, and
their action by their appropiiate 'agents, 1*78
in their domestic, federal, or foreign relations,
shows that this declaration was so received and
understood by the whole country from the
time it was made till the adoption of the
Constitution. Each of those States which had
not befoie done it, proceeded to institute gov-
ernment for itself, by written constitutions!
declaring all power to be inherent in the people
of the State, and denying the existence of any
other, with the exception of Connecticut and
Rhode Island, Those States, which had
previously adopted constitutions, continued to
act under them, without a donbt felt or ex-
pressed that the Kovemment so organlaed were
aa competent, and In all respects on Che same
looting as those which were constituted after
the «h of July, 1776. Vide * Or. 812, 213.
The two States, which were exceptions, fur-
nish a still more conclusive illustration of this
universal opinion. ConnecCieuC bad no consti-
tution UU 181Bi Bhode laland baa nona to (bia
tat
Okioir akd Natobk or thi Cofrtttutior
day; both SlatM eontlnnad to exercise their
legialRtive power, under their respeetlre char-
ter* from the kinj;, in virtue of hU prero^tiTe.
The people of tho«e Statea had npver anemb'.ed
In convention to aboliih the Briliih govern-
ment, or to institute one of their own; thej
made no separate declaration of independence,
or conferred any new authority on their State
Leglalature; but they ailently acquleeeed in the
course of legislation, founded on the unquet-
tioned exiatenee of a supreme soverefgn legisla-
tive power, by which Ie([lalatitra utaga was,
bj the tacit assent of the people, a constitution
In effect. Herein thej departed from the great
principle of the American sfstem of govern-
ment, which wai to define, limit, and dirtribnte
the powers by written oonstltuttona, instead of
doing ft according to usage and precedent;
but this very departure shows the force of a
principle fundamental In all free States and
governments — that all power emanates from
the people of the State. That legislative usage,
b/ {he implied consent of the people, make*
aneh usage as much a eucreme law; and to all
intenta and purposes, the constitution of a
State, as if one had been ordained and estab-
lished by an instrument in writing, adopted in
a convention of the people, by their expressly
delegated authority. So this court have held
the usage of Connecticut (3 Ikill. 398, 400, etc.),
and of Rhode Island (2 Pet. 656, 05T), under
their reapective charters; and their political
condition, by the results of the Revolution (as
defined in 4 Wh. 601), is prei;;sely tha same as
that of the state of Great Britain. The usage
of the Legislative body is the only supreme law
of the land, and the only evidence of the consti-
tution of the State. That the force of such
usage in these two States was in no wise Im-
Sired by the Declaration of Independence in
ngresB, Is thererore a self-evident truth i
and as tbey bad made no separate declaration,
either In form, or in any wriLing constituting
government. It is as a political or judicial
truth equally clear that the declaration by
Congress was made by the delegates of these
States, in the name and behalf of each, of the
rights and powers of each, as well as the other*
of the thirteeu, by the unanimous act of all.
Bo it was considered by Congress from the 4th
77'] of July onwards; ail their 'proceedings
show that their declaration of rights in 1770
differed from their declaration of rights in 17T4
only in this: The latter, referred to the rights
of the colonies, when first united, to obtain a
redress of their grievances, bjr petition and re-
monstrance; an appeal as British siibiects for
justice, by the principles of the Engliuh consti-
tution, Magna Charta, and the common law;
In the hope of reconciliation, by the repeat of
the obnoxious laws, and a disavowal of what
the colonist* held to be unconiititutianal power.
The former referred to the then existing rights
and powers of the Stales and people, resulting
from the principle declared in 1774, which, after
•11 hope of redress or conciliation had became
extinct, and the appeal to arms taken by both
parties, were in 1778 applied to the States,
who, being ipso facto independent by the sup-
frcssion of the authority of Great Britain, the
act wa* declared and proclaimed, togfCher
with tta elTect on the oondition of the xevrral
SUtea. The people «( the Btatea were no
longer the nibjecta of the king, but wwn
thenceforth the citieens of a fn>e Stat* owisg
allegianca to It, but to no other Stat* or
power; and were thereby on an equal statlM
wilb the other powers of the e*rth, as Ststaa.
fn October, 17TR, Congress directed that
every officer should swear, that 1 do acknowl-
edge tbe thirteen United States of America,
nnmely, New Haiiip«liire, etc., to bo free, Indo-
prndent and soverei^ States, and declare that
the people thereof owe no alte^nre to George
the Third, King of Great BriUin." Z Jourm.
400. That allegfanee la the unerring teat <>(
sovereignty, existing in the Slate to wliom it Is
due. Is a truth too evident to be discasaed or
In November, Congress agreed on the frame
of the articles of confederation; and in their
circular letter addressed to the respective legi*
latures of the States, refer it to them as "so
many sovereign. Independent communities;'
and "to each respective Legislature, it ia rec-
ommended" to Invest its delegates with oom-
petent powers, In the name and behalf of the
State, to subscribe article* of confederation
and perpetual union. 1 Laws U. S. 12, 19.
These proceedings suffice to show the seaa« of
Congreas as to the domestic relations of tbe
States before they had adopted the artielea of
confederation: their federal relation or conmc-
tion had assumed ao definite form; each State
made out its own credentials t« Its deputies in
such form a* they chose, and Congress had
hitherto acted by an authority, assumed as
exigencies required, calculating on tbe acquit*-
cence of the separate Slates.
if COnj^ese was, in 1776, a national legis*
lature, with power to pass law* independently
of the several States, and to control State Leg-
islatures, all subsequent acts were wane than
useless; for the government was more absolul*
tlinn the present. The Declaration of Inde-
pendence admits of no qualification of the un-
limited powers nf a gtale. Taking it aa tbe
creation or the recognition of a governnient.
instituted by one people of one Stale, as guar-
anlied by the Treaty of Alliance with Frmnev.
and acknowledged by the Treaty of Feacf with
Creat Britain, it hss "absolute and unlimited
in matter* of government, •commerce, ('IS
and possesaions ;" and all the rights (»f the
crown and powers of Parliament devolved vp-
on. and passed definitively to the one State and
nation, as well (o the soil as the iuriadictioii of
the whole territory within the houndsries of
the United States. That this view of the Dec-
laration of Independence it contradicted fay
historical facts, by all the political erenta of
the Revolution, the proieedinss of Congreas.
the general and State conventions, and the ad-
judications of this court is, 1 think, fully *p
parent in the preceding view. It also appear*
to me that this declaration has been as mad
Serverted aa the passage from Blacjcstooe, !■
ta apelicalion to the then political siiuation of
the colonies, or States; its intention and effect,
connected with the history of tbe time*, is ao
plainl^f expressed that it seem* incapabJ* of be-
ing misunderstood.
That there were thirteen colonies with sep-
arate governments In each, without any con-
trol by one over another. Is admitted; that
llicy assembled hj diflereot representation*;
aub QovnKHnrr or m Ukitb> States.
thftt tbef voted, acted, «iid aigned the declara-
tiuB hy their •epurate delegatea, is appsrent on
the jouriia!s ot CongreM, kod the face of the
|iaper. The ineniben who auembled u the
delegates of colonie* were the name who, ai the
rcpreseatativei of the SLatea, made the dee-
UnUon in the name, and b7 the aatharity of
the good people of tli«se colonies; which waa:
"That Ibeee united votoniei are, and of right
oudit to be, frei: and independent Statei."
Jf this declaration had no l>earing on the
ConstitulioD, or if that inatrummt waa not the
Boat ill-fated one that waa ever derised and
written hj man, not only by being Itself per-
verted, but made the cauae ot perverting evcr^
«ther inatrument in writing which forms a part
of its historj, or can be referred to for illuetra-
tlon: there would be the aame union of opinion
>• to ill meaaing aa there liaa been for one
Lundred and Qft; jear* in England aa to the
declaration of rights, wrongs, ami the effects
theieof, iD 1888. That it oonsummated a revO'
lutioa in government, wberebv all colonial de-
pendence having ceased, each political com-
munity assumed, aa a State, tLit aeparate and
equal station amoug the powers ot the eaxtb
which oLhur independent states held, and
which each State then and thenceforth had and
enjoyed, would hare been tbe universal opin-
ion, if no queHtion of political power waa in-
volved in mystifying It. If this paper la taken
«B it reads, and means what it says, it contains
neither a ^ant or recognition of the existence
of any legislative powers within the limits of
the once colonies and then States, other than
what was end had been in tbe several legisla-
tures thereof from their first settlement; and
tf It cannot be made so by bold assertion or
■liainterpretation, there is no foundation for
the theory ot the unity of power In the "one
poople," in constituting a government for the
United States. To my mind, it seems a con-
tradiction in terms and sense, that the declara-
tion could be true in fact, in principle, or his-
torically, if the several States could be made
subject to a constitution, ordained by "an ab-
solute sovereignty" In the people ot all the
States in the aggregate. It la to me wholly
7B*] repugnant to the declaration itself, aa *to
two great Krievances set forth: "For taking
•way our chatters, abolishing our most valu-
able laws, and altering, fundamentally, the
forau of ovr government:" "For suspending
onr own tef^latures, and deelaring themaelvea
Invested with power to legislate for u in all
caaea whataoever."
This Is tbe precise effect of the modem Inter-
pretation of this great act of the revolution.
The AlliajM* between the States by tba On-
federation.
By these artictea the nature of the eontedsra-
tion and its objecU were clearly deAned: the
of the States to each other, their
relations
separate powera and those of Congrwi siplieit-
ly declared. They ware adaptw^ not by tbi
t the very acts of oppression committed by
the king and Parliament, against which the
States and people contended as rlolationa of
tboir rights, were no longer ao when exercised
bf Congreaa. If the result of the Bevolutioa
waa a Changs of masters; a mere substitution
of a supreme national government over States,
with powen more absolute than were ever as-
serted by king or Parliament, then the charters
of the States were virtually annulled; their
forms of government altered fundamentally,
and their own legislaturea not only suspended
but auperaeded. It will be left to tbeorlea to
rrconcfl' the commentary with tbs laxL
people of the SUtes, but by delegates, who
were the representatlvea ot the teapective SUto
legislatures; who were expressly named aa the
conslituenU, who had authorised them to bs
ratified and conflrmed, and In the name and la
behalf of each; and which was ao done by ths
dBlegatea who aigned the aame according. 4
Lawa U. 8. IB, 20. For present purpoMa it is
necessary to refer only to three articles.
"Art. 3. Tlie Mid Statea, hereby severally
ta^" '?*" ■ ^'^°' '^"P" o' friendship with esieli
other for their eommon defense, the security
of their liberties, and their mutual and general
welfare; binding themsulves to assist each oth-
er against all force offered to, or attacks made
upon them, or any of them, on account of re-
lieioo, sovereignty, trade, or any other prstozt
"Art. B. The United States in Congreaa as-
sembled shall have the sole and exclusive right
and power of sending and receiving ambaaaa-
dors, and entering into treaties and alliances;
provided that no treaty of commerce shall re-
strain the legislative power of the respective
States, from imposing such imposts and duties
"" foreigners, as their nwn people are subjected
or from prohibiting the exportation or im-
portation of any species of goods or commodi-
'les whalspever.' 1 Laws U, S. IB.
This alliance, league, or confederacy of ths
Statei with each other can leave no doubt that
up to tlie time of the final ratification In
March, 1781, each SUte waa separately sover-
eign in its own inherent right, and so remained
as to all power not exproaaly delegated, aa waa
declared in the second article. The third arti-
cle is also conclusive that the objeot of the al-
liance was to maintain and perpetuate their
'separate sovereignty. This is the more ["SO
manileat when these articles are taken in con-
nection with the alliance of the Statea with
Alliance between the SUtes and Franee, and
the Guaranty to them, b* Franos bv the
Treaty of 1778. . 7 »•
On the same day when a committee waa ap-
pointed by Conmta to prepare end digeat the
form of a eon federation to be entered Into bs-
Iwecti theae colonies, a committee waa also ap-
pointed to prepare a plan of treaties to be pro-
posed to foreign powera (June IB, 1778; t
Joum. 198), the instmctlons to the eommls-
sioners were agreed to in September followtiw.
S Joum. 381. In the same month, plans of
these treaties were submitted to and approved
by Congress, who made out letters of ersdenes
lisaloaers. 2 Se-
and commissions to tba e
ret Joum. Cong. p. 7.
As the Bth article of eoafederation, as drawn
up, would give to Congress the sole and ezehi-
sive power of entering into allfsnoes on their
adoption, it was a sufficient guaranty for iu
observance by tbe States; but as Congress
could not restrain the legislative power of the
SUtss ov«r conuMTOe, as nsolvsd in A^
• 11
OtiBiK AXD Mati:sk or ihk Cokbtitutkut
t77S, mud deckred in this article, provision was
made on the iubject in tlie 6th article: "Ho
Blat« ihail lay any impoBta or duties which
may interfere with anv atipulationi in treaties
entered into by the Imtted States in Congreas
assembled, with any king, prince, or State, in
pursuance of any treaties already proposed by
Congress to th« courts ol France and Spain.
1 Laws U. 8. IE. Those of commerce and al-
liancfl with France were made in 1778. The
coin mi Batons, credentials, and treaties were in
the name of "the thirteen United States of
North America, to wit; Mew Hampshire," etc-
£ Secret Journ. 7; 1 Laws, 74, 95, and the 8d
krticte of the Treaty of Allianoe declares its
object most explicitly.
States, as well lu matters of government, as of
commerce." In the lllh article, the parties
make a mutual guarnnty; in that of France,
"His most Christian Majesty misrantiea, on hit
part, to the United States, their liberty, sov-
ereignty, and independence, absolute and un-
limited, as well in matters of government as
commerce; also their possesaions, and the ad-
ditions or conquests that their confederation
may make during the war," etc. 1 Laws, 95, 98.
This guaranty was fulfilled by the Treaty of
Peace, In which "His Brilsnnic Majesty ac-
knowledges the said United States, to wit:
New Hampshire, etc., to be free, sovereign and
Independent States." 1 Laws, 108. This recog-
nition, relating back to the separate or unani-
mous declarations by the States, as this court
have held It, has the same effect aa If the Stales
had then aisumed the same position, by the
Srevious authority of the king; the treaty not
efng a grant, but recognition, and subsequent
mt.ncalion of their pre-existing condition, and
SI*] *all acts which had declared and defined
it prevloua to the treaty, related back to 1778.
Such being the relationsof the several States,
in their federal and foreign concerns, It follows
that a* to their internal concerns they were in
the same attitude of abaolute and unlimited
■overelgnty, before the articiea of confedera-
tion, as they were afterwards, except so far as
they abridged it. Each was a party to the
Treaty of Alliance and Peace, and each was
bound by the guaranty to France, after the
confederation was abolished, and the Consti-
tution was established aa firmly as before: the
States who delaved their ratification remained
M bound, for they could by no act of their
own, impair the rights of France; and they
were equally entitled to the efteeU of the Trea-
ty of Peace, whether they became constituent
parta of the Union by ratiTying the Constitu-
tion, or remained foreign States by not adopt-
ing it. Tlieir Slate constitutions and govern-
ments remained unimpaired by any surrender
of their rights; so that of consequence their
sovereignty was perfect so lon^ as they con-
tinued free from any federal shackles; so the
States acted, and so the people of each declared,
in all their conventions, from 1776 to 1780.
d to thp Qolonks W
form govariiments, "on the authority of tW
peopla alone;" this was done by the States win
adopted ocnstitutions before and after the Dec-
laration of Independence, by the assertion of
the people in the separate conventions of eaeh
State, tnat they bad by nature and Inherent
right, all the powers of government, and that
none could be exercised by any l>ody unleai by
their authority. Tbey applied to themaelvca
all the principles announced in their unani-
mous declaration in Congreaa, in terms incapa-
ble of being misunderstood.
The people of Pennsylvania declared "that
all power being originallv in and consequently
derived from tie people," the community hath
an indubitable, unaHenable, and indefeasibis
right to reform, alter, or abolish government,
in such manner aa shall be by that community
judged most conducive to the public weal."
'fho supreme legislative pouer shall l>e vest-
ed in a House of Representatives, etc Con. ot
Pennsylvania, 66, 58, 67; September, 1776.
Tb« people of North Carolina declared that
all the territory within the bounds of the Stats
was the right and property of the peo^
to be held by them in full sovereignty. Laws
of N. C. 275, 270; Book Const. 23i, 230; De-
cember, 1776.
Those of New York. "That no authority
sliall, on any pretense whatever, be f ~ '~ '
the people or members of this State, but
such aa shalt be derived from, or grant^ by
them." 1 Hev. Laws, MB; M'CauIey's Hist. H.
Y. 231, 232; April, 1777.
In Massachusetts. "The people of this CoB'
monwealth have the sole and exclusive right of
governing themselves, aa a free, sovereign, and
independent State, and forever hereafter shall
exercise •and enjoy every power, juris- [*••
diction and right, which is not or may not ner*
after be by them expressly delegated to tlw
United States of America in Congress as
seiiibled." Book Const. 53; Laws Mass. •(
March, 17S0.
Delaware, Maryland, and Georgia, adopted
constitutions in 177B and 1777, and the people
of Vermont, though not a State, made a decla-
ration of their political rights in July, 177T,
and adopted a constitution. Vermont St. Pap.
241. The governments which were instituted
were all on the same principles oa thoae which
have been specified, and the States were esA
in the aame political situation — "sovereign, in-
dependent communities" — as they were styled
by Congress, in their letter recommending the
adoption of the confederation. 1 Laws U. S. IS.
In this, their sovereign character, the people
of each State could create what corporations
they pleasted for their own government, (itber
by written or tacit delegation of power, as best
pleased them; their action in either mode had
the same effect, whether the body politic to bo
created was for one or all the States, it «-a* tlw
exertion of the same sovereign authority, M
the people, within the limits of their own SUta,
empire, or kingdom. Both corporations. Stat*
and federal, were formed on the ^ame authority
and in the same right; and as in England, tba
three states of the Idngdom, compriaing aJl tke
people thereof, acting, whether by organic or
administrative power. In their several and dis-
tinct estates, by the represejitatives respective-
ly; Itad formed, "the great corporation or body
AMD Oommmm at tbi Umm Sr^nM.
poIHIe of the klngdon." Tbe Parliament. The
legislative power. The government establlihed
by the people. I BI. Com. 1S2, 102.
So has our new ConitltutioD in writing,
■tgned b; the separate estate* or States of the
Union, created its great corporation; not ae our
old one did, a lupreme consolidated government
of the States, but "the federal government of
these States," a« the framers thereof called it
in tbeir letter to CongraBs, and as the several
Btates declared in the heading, by ordaining and
eatablialiing this Constitution for the United
States of America, as the several States, each
for itaelf, had done before, with the two excep-
tions. When the people of all the States, suf-
fering under oppresElon, acted by their rights
of inheritance from their ancestors, followed
their example by drawing their swords upon
their eovereign in defending them; declared, o^
liad been done In time immemorial: 'Vollumus
leges anglJE mutare."
The people of those two States,. in their own
ohar*ct eristic way, by deeda rather than words,
MHiteut with what their representatives In
Congress hod. declared for them, mod in their
name — independence in fact — adhered not only
to the laws, but the usages of old, and catah-
Uahed their great corporation by their silent
consent in submitting to their supreme legisla-
tive power of the States as exercised by their
representatives chosen in towns — a governor
and the members of the Upper House, by the
people of the State at Urge. Thus, their char-
ter and Ipgistative usage became their constlta-
03*] tion, and so continued; the 'tacit prac-
tical consent of the people, being taken as
equivalent to a formal delegation of power in
eonvention, and so considered by this court. 3
Dall. 3e», 400; 2 Pet. flSS, 657.
A reference to the other eleven State govern-
ments will show by what people and of what
State they were constituted by organic power,
original, inherent, and sovereign, whether sin-
gle or connected, in one or thirteen potentates-
It will also show that if there is, or is to be,
■ny harmony between the State and federal
■yatems, it arises by the power which created
both being the same, and that the constitu-
tions of goverment, over and within both, must
be so construed as to avoid any discrepancy be-
tween them, in their, origin, organization, or ,
action.
Xftch State was ■% Singla SoTereign Powar,"
In Adopting the Ootiatittition.
When we thus Snd that each StaU had thus
separately, either in their conventions or prac-
tirally, declared, asserted, and exercised tbeir
power of instituting a government for each,
before 1787; and a Federal government for, and
over all, (or federal purposes, as then propmed
•nd adopted, in 1TS8; we can look back, and
In reviewing their prc^ess from their depend-
ent condition as colonies, to their independence
mm Btates, see and understand the power which
effected the conversion by the people of each
Btftte, who transferred from their local or their
federal Legislature, federal powen, bf their
cession, in the grant. And in its provisions we
can also lee that the Congress has accepted it;
is organized under iti acts and loust continue
to act pursuant to Its ordinances, through all
time, .as Uie consUtueot of the whole agency
delegated to the government. T^en, taking the
relation of the States to each oiher as ft exist*
under the Constitution and as declared by this
court, In one uniform and consistent Kei'ip* "f
adjudication (from 0 Cr. I3S, to 2 Pet. SUO, SBl),
that "The several States are still foreign lj
each other, for all but federal purposes;" their
position as "a single unconnected soverei;xo
power," before and without any federation be-
tween them, aa an Inevitable consequence.
The Constitution is a Cession of Power by tbe
Particular Stateaj Operating as a Ireaty of
Cession, by « Foreign State to the United
SUtea.
The operation of the Constitntlon, than,
must, of necessity, be like that of a treaty of
cession by a foreign state to the United States,
As the Slates are still foreign to each other for
all but federal purposes (they were entirely so
before the confederation of 1781, and remained
so after its dissolution, till they severally
entered into the new one), the United State*
could have neither a right of soil or jurisdic-
tion, propriety or dominion, within any par-
ticular State, but by a cession from the State
power or property, according to Its terms, ope-
rating by way of grant; a treaty, compact, or
contract 'transferrmg the subject matter [*84
thereof from one party to another; wiietlier
they are States foreign to each other, or State*
connected by federal relation, the elTect la tbg
The Constitution Is a cession of jurisdietioii
only, made b^ the people of a State; the
cession of territory included, in terms, soil and
jurisdiction; so did the treaties of Louisiana
with France, and Florida with Spain, by th*
grant of those province*, in full sovereignty;
each grant performed ita proper office, either
to transfer legislative power from the soversian
in whom it was vested, or territory from It*
former proprietor. When power or properly
thus passed to the United States, tt Is held sub-
ject to the terms and stipulations of the grant;
and federal power is exercised over all the ter-
ritory within the United States, pursuant to
the Constitution and the conditions of the ces-
sion. Whether It was a part of the original
territory of a State of the Union, or of a for-
eign State ceded by deed or treaty, the right
of the United States in or over it depend* on
the contract of cession, which operates to In-
corporate aa well the territory as its Inhab-
itants Into the Union, placing both under tiie
Jurisdiction of its Constitution and government.
Bo the Constitution operated to Incorporate
such of the old States as ratlfled It; so it did
a* new States have been admitted; so it must
operate in foture. It was a cession, by nine
Btates, of so much of tbeir separate power as
waa necessary for federal purposes, to the body
politic called the United States, the "American
Confederacy," "Republic," or "Empire;" ai a
term of designation, including States and terri-
tories. The Constitution was the charter of
thi* federal corporation, a* those of the dif-
ferent States were the charters of tbeir State
corporations of government; each with power
to le;:I slate accordina to the terms of their re-
spective charter*, nioiect only to that charter
111
which had been made inpreme for iU deifgni,t-
•d purpotea.
Ail charter* >nd grant! of power or propertj
kre goreroed by the same rule* of conatructjon '
ftll questions touching the boundkricB of teiri
lory, or lines of jurisdiction, tnutt be referred
back to the onginKJ sovereign In whom both
wan vested; and thence deduced by a regular
ehala of title to the contending parties. So
this eourt baa done, as to contrDTersies be-
tween the United States and foreign state* (2
Pet. Z9B, 314, passim), and in controTersfes
arising from the collision of State laws with
those of the Union. Adopting the principle
that all governments are corporations, they
apply to those of the territories of the United
States in such a manner aa to ^*e a key to
unlock any part of the Constitution which can
admit of a doubt as to the granting power;
they point to and Identify that sovereign power,
in which was united property and dominion,
within its own original territorial limita, a* the
■upreme lord and proprietor thereof. Thl
court remark: "Yet all admit the constitution-
ality of a territorial government, which is i
corporate Iiody." 4 Wh. 428. This short sen'
tenee, connected with that part of the Consti-
tution to which the court refer, will tend mon
to aolve doubts than any reasoning c&n do.
8B*] *The Powi.-r of Congress over Territoriea,
the District of Columbia, Forts, Arsenals,
dockyards, eta.
"The CongresB shaM have power to dispose
of, and make all needful rules and regulations
respecting the territory or other property be-
longing to the United State*, and nothing In
this Constitution shall be to construed as to
prejudice any claims of the United States, or
of any particular State." Art. 4, sec. 3, cL 2.
Hero the power to dispose of property, or
regulate territor}', by the establishment of a
eorporation to govern it, la identical; in what
right and by what means, either is considered
aa "belonsing to the United Statea," depends
on the right by which they were made a corpo-
ration, capable of holding, disposiog of or reg-
plating, what belonged to them as a govem-
nent. This was the cession of soil, and the
Ct of legislative powers to a Congress of the
ed States, nrfao could dlspoea of or regulate
by taw their territory, or other property, how-
ever acquired; how, then, was it acquired, is
tiM only question, at their right over it is un-
Siestionable when acquired. The opinions of
is court, concurring with the IBth clause of
the 8th section of the 1st article of the charter,
point to the ^antors, who bad the dominion,
and the propriety. In and over whatever wua
S anted, whether "to exercise exclusive legis-
tion in all casM whatever, over such district,
and such places, for forts, arsenals," ete., "aa
may by cession of particular States, and the ac-
ceptance of Congress, become the scat of gov-
ernment of the United States," or "purchased
by the oonsent of the Legislature of the State
in which the tame may Mj" or "to dispose of,
and make all needfti] rules and regulations re-
specting the territory or other property be-
lunging to tba United States;" the right Is ac-
quired In the aame manner, "eeation," or grant,
"by pMrticular States," or purehMe iritn the
*iBent of ttw local Legialatnra of oaa>
IF TIIK UOHBII f Ul'lOll
In relation to this district, thli eoort aaf:
. "On the extent of those terms, accordini tP
tbe common understanding of mankind, Uier*
ean be no difference of opinion;" and thay held
that Congresa had the same power of taxation
in the district, as tbey have in the territories,
by the same rules of apportionment and uni-
formity, aa In the States. G Wh. 324. Thit
the power did not depend solely on the grant ol
exclusive legislation, but was given in the grant
of the 1st clause, 8th sec. 1st art., "to lay and
collect taxes," ebc., as a general one, "withoiit
limitation of place," extending "to all places
over which tbe government extends;" In the
words of the grant, "throughout the United
Statea." This term designates tbe whole
"American empire." It is the name given to
our great republic, which is composed of Statn
and territories, all of which are alike within
"the Uitited States"; and it is not less nccei-
sary, on the principle of our Constitution, that
uniformity in the imposition of imposta. duties,
and excises, should be observed in the one than
in the other. S Wh. 318, 31B. Its language
oomprehcnds the territoriea and District of
Columbia, as well aa the States. (523.) So, un-
der the confederation, *(Vidc post.) It is [*8S
therefore clear that as the taxing power of Con-
gress opera tea In aU respects uniformly
"throughout the United Stales," It must M
derived from the same grant; the territories
never made any grant; they were then the
"prapertv" of the United States, by the deroln-
tion of the right of the eronn by the Treaty ol
Peace, or by cession from particular Statea, or
the one in which it was situated and owned, as
an original State. The power of legislation
over the States, is by the Constitution; over
the district it is exclusive, by uniting the leg-
islative power of "the particular Statea" (Mary-
land and Virginia) by their "cessions;" whiM
authorize tbe exercise of federal or State pow-
ers, by one consolidated government. Over
forte, dock-yards, and arsenals, it is by pur-
chase from the owners of the toil, with the con-
sent of the local Legislature, who may make
the power exclusive by ceding their onn, or
consent to the purchase, and ceding a eonmr-
rent, or retaining the jurisdiction of tbe States
over the territories; it is by making rules and
regulations respecting their property, but the
power is legislation; regulations by lawa,
which are, "rules of action prescribed by the
legislative power," whether for the dispositioa
or government of property within the terri-
tories of the United States, which belonged, or
should belong to them, thereafter.
All the Territory within the United Stataa.
at the Treaty of Peace, belonged to the Par-
ticular Statea.
Thit court has decided "That there was no
territory within the United Statea that was
claimed in any other riglit than that of aoBM
one of the confederated States; therefore, th««
could be no acquisition of territory made by tbe
United States, distinct from, or independent of,
some one of the States; the toil and sovereignty
were at much theirs at the Declaration of In-
dependence as at this hour." (1827.) 'Thna
stood the rights of the ^larties at the «
xxa iiutuiAHiuii OK tus UmiBu SrAxat,
Ualtod SUUa wm Oac
rj of Bouth CaTolinA or Geaigit, (it uuitteraiiot
which), Georgia inBistBd on that line u the limit
which the w»« entitled to, and which ilie had
tftid claim to, when she declared hereeIC inde-
pandeiit, or which the United Sutea had aa-
Mrt«d in her behalf, in the DeclkntiOQ ol In-
dependence," end 'the right to it wu eit*b-
Ualied \>J the muit eolemn of all international
Mte— the Treaty of Peace. It ha* never tieen
adnutted by the United Statea that the; ae-
B'rad unytliing bj way of oeaiion from Great
tain b; that treaty. It hai been viewed
anljM a recognition of pn-esi«ting righle."
12 Wh. fi2fl, 627; Haiuourt v. Gaillard, S, P. 634,
S3Si Uendenon r. Foiodexter, 4 Cr. 212. It
oould be viewed in no other way, when we look
t« the assertion of her daina by Georgia, in
1783, ■■ "a sovereign independent Statej" whoM
"tnie and just limits," "aa secured" "by their
ehutar, and piarantied a* well by the articles
ot eon federation, a* by the Treaty of Alliance"
with France. Laws ol Georgia, 264. That trea-
ty has been ralerrad to to show wliat waa
SI'I 'guarantied to the several Statea; it also
ehewa what was guarantied to the United
mates, as a confederation of the aeveral State*.
Art. fi. "U the United Statea aboald think
fit to attempt the reduction of the British pow-
er remaining in the northern parts of Ameriea
or the islaod* of Bermudas, Ihose eountriet or
islands, in case of success, shall be eoafederated
with, or dependent upon, the said United
SbUea." By art. 0, f ranee renounee* any
claims to tboaa islands or those countries, or to
tJw United StaUa, heretofore ealled British eol-
oniea, or which are at tids time, or have lately
been, under the power of the liing and crown
of Great Britain.
Art. 11. France guaranUes to the United
Statas their liberty and "also their posass-
sionsf'* "and the additions and conquests that
tboir oovlederation may make during the war,
from any of the dominions, now or neretofore
possessed by Great Britain in North America,
conformable to the 6th and eth articles above
written; the whole as thetr posaeision shall be
fixed and assured to the said States, at the mo-
■nent of the cessation of their present war with
EngUnd." 1 Laws, 97. SB. On this ground the
States stood in their separate esiatence, and
the United States as a eonfedsratlon; and as a
eoBSequenee of this position, this court held
that neither the United SUtes or Spain eould,
!■ tha Bavolution, acquire by conquest a terri-
torj within the limits clainMd by an ally dur-
ing the war. IS Wh. 684, 628. These great prin-
dplfls have been aa authoritatively settled by
this court aa they oaa be, and have been the
b«ais ot their adjudications In ail eases save
tlwa* of the (Astokeaa. ■'Oa the Ttb of October,
ITfit, tha Ida^ aaareieing a rieht which was
.!___. ___^ wb^t ware then called
norida at the thirty-Biat degree of north tati-
tNcW* <12 Wh. 6M) i his right to legislate over
• eonqaoed country was nevM" denied in Weat-
nlutcr Ball, or questloaed in Parliament. 9
Pat. Ida By the Bevolutlon, the duties aa well
mM the powers of government devolved on the
peoflaof New Hampahira (4 Wh. Ul), and, of
aiMrsi, to tte paovU of «Mb asparsU Bute.
emment, and the right of soil, which had pre-
vioualy been in Great Britain, passed deflnl-
tively to these States." 8 Wh. 684.
There then could be uo mode by whidl the
United Statea could acquire either "the powers
of government" or the "right of soli, in any tar-
ritory, but b^ a ceasion from the Statea, on
whom both nghta devolved by the Bevolutioii,
and passed to them defit>itivefy by the acknowl-
edgment and renunciations of the treaty. And
it was held by this court that the only terri-
tory which in fact belonged to the United
States in 1737 (that which lay west of Peon-
sylvania, and north of the Ohio) waa acquired
by the ceasion from Virginia, ete. 6 Wh. 87S|
As to places purchased by tha United States
for forts, dock-yards, etc, the same principles
apply; and have been applied by this court in
tfrms and language appropriate alike to all
cessions, by putting and answering the all-im-
portant question.
■"What, then, Is the extent of jnrisdie- [*B8.
tioD wfaii^ a State possesses! We answer,
witiiout hesitation, the jurisdiction of s State is
co-extensive with its territory, oo-exteniive
with its legislative power."
"The place described Is unquestionably
within the original territory of Massachusetts!
it Is, then, witnin the jurisdiction of MasMChu-
setts, unless that jurisdiction baa bean ceded to
the United SUtes."
That original territory means tha charter
boundaries of the SUte cannot be Questioned:
from which It must follow that jurisdiction
and legislative power being concomitant with
territorial rights, the United SUtes cannot ex-
ercise any federal or exclusive legislation with-
in these boundaries, unless It ha* been ceded
capacity, aa a constituent of the Union.
Thongb these opinions of the court have been
delivered in cases arising in the old States, the*
are equally applicable U> the new States whiek
have been admitted into the Uniun. pursuant to
the ordinance of 1TS7, which declares that they
shall he admitted on an equal footing with tha
original SUtes, In all respecte whatever. 1
Iaws, 4Sa Such States are thus referred to
in the 4th art. 3d sec d. t: "New S.sles may
be admitted by the Congress Into this Union."
They have been admitted, and now are con-
stituent parts thereof, in virtue of, and accord-
ing to the terms of this ordinance, which de-
clares what such aquat footing Is, and shall ra-
New York, and Virginia; In 17ST it belong«d
to tha United BUtes, by aeparste deeds of ces-
sion made by those States: it was thus the
property of the confederation, aubiect to tbe
exceptions, conditions, and reserratlonB In the
respective deeds. The "particular 8tatea",had
ceded their jurisdiction, and tbereby annulled
their legislative power over it. The article* ot
confederation wen drawn up In November,
1777, before any ecssion waa madai eonsequent-
OxiaiM uiD Kavuhs or t
I CunmruTiON
Ij thne wai no provtsion niBde for the exereiae
M Hi^ legiilktloa bj CongrnB over an; territo-
K within the boundariea of thnse Stales, while
ej returned both aoil and jurisdiction. But
after the cessian, from the net-essitf of the case,
Congress aisumed ».ni exercised the power tu
pus ''■□ ordinance for the government of the
lerritory of the United States, northwest of the
Ohioi" the. first clause of which shows In what
capacity Ihey did ho, on the 13tfa Jul;: "B« it
ordained b; the United States in Congress at-
MJnblcd," etc As an act of the States, hf their
Mveral ambassadors, it was binding on them
In their legiilative capacity, if done b; their
^utlioritj, or subsequently ratified; the act of
Mtaiun H'a« in effect to authorize it ; the acqufes-
«enci! of the States was in law a ratification b;
the Slates, which the people thereof eonflrmed
hy the Constitution, as proposed on the 17th
Srptetiilwr, 1787. In the interval, a committee
of Congress had made a report on the respec-
tive powers of Congreai and the Slataa to regU'
■9*] late Indian affairs, in which the *gen-
aral IpgisJative power of an; State, "in alt parts
of it," is most diitinetty admitted on atl Hub-
jects except Iniiian affairs, which were asserted
to have b(»n delegated to Congress by tbe Bth
article of the Confederation. 12 Journ. Cong.
BZ, 84, etc. The whole subject was thus be-
fore Congress and the convention at the same
Xitae; nine of the members of tha convention
w«re membera of Congresa when th« report of
the conveniion containing the proposed conati-
tulion, resolutfons, and letters, was submitted
to, and unanimously accepted by Congress.
Vide 12 Journ. 99, 100. Rhode Island was not
present in either body; but the membera of
both bodies, on behalf of the twelve States
who were present, acted in perfect concert and
unity of opinion, on the appropriate subjects
eonfldcd to them. Congress exercised tlie or-
ganic power of the States without any express
detection; the convention propoiied an organic
act, to be done by the people of each State, as
the constituent power thereof; and both were
"done," accordingly, by ordinance; the States
in Congress using the term, "be it ordained;"
the people using this: "we do ordain." The
•ffi'ct is, a governmfnt is established by the
Stales oolleclivelj; in Congress, in one ease,
and separately, in the other, in conventions.
Bf one ordinance, it was established for the
Kvemment of a territory, and new States to
formed out of It; by the other, for the gov-
ernment of all the territories, and all the
States, old and new, which may be included in
tbe Union at that time, or afterwards: one or-
dained by States, in a convention, or Congress;
tbe other by each State in a convention of the
people, Attbr providing for the temporary gov-
cminent of the territory as one district, the or-
dinance of July, 1787, contains a preamble
worthy of note: "And for extending the funda-
mental principles of civil and religious liberty,
which form the basis whereon these republics,
their laws, and constitutions, are erected; to
Ax and establish those principles as the basis of
alt taws, constitutions, and governments, which
forever hereafter shall be formed in said terri-
tory; to provide for the establishment of
States, and permanent goremments therein,
and for their admission to a share in tbe fed-
eral Muneila, on aa eifim\ footing with tka
tl«
original States, at aa early periods a* nmf im
consistent with the general interesti"
"It is hereby ordained and declared, by the
authority aforesaid (Congress), that the fol-
lowin{( articles aliall be considered as articlefl of
compact between the original States, and the
people and States in the said territory, and for-
ever remain unalterable, unless by comiBOB
consent," to wit (art. 1 and Z, was for tbe ae-
curity of persons, property and contracts; «rt.
3, relates to the Indians within the territory) :
Art. 4. "The said territory, and the Bt«t^
which may be formed therein, shall forever re-
main a part of this eonfedei-acy of the United
States of America, subject to the articles of
confederation, and to such alterations therein
as shall be constitutionally made, and to all
the acts and ordinancea of the United Statea
In Congrass assembled, conformable thereto,'*
etc., etc.
■Art. 6. "There shall be formed in [*••
the said territory not less than three nor mora
tlun five States," etc. "And whenever any of
the Ba:d States shall have sixty thousand frea
inhabitants therein, such State shall be admit-
ted by its delegates into the Congress of tha
United States, on an equal footing with the
original States, in all respects whatever; and
siiall be at liberty to form a permanent Conati-
tution and State gOTcminent, provided tha
same shall be republicBn, and in oonfonnity to
the principle contained ia these article*," etA
1 Laws U. S. 479, 480.
This waa the conatitntion for tbe territory,
and with the articles of eon federation, fonoM
one constitution for the territory, and for the
old and new United States of America; being
the ordinances, one, of the States assembled ti
Congress; the other of each State in their ro-
spectlve general aesembiies, or Stat* lagiala-
turcB, autBorlEing their delegates to assent to
and sign it.
The Ordinance of 17ST Is Incorporated into tbe
Constitution, and yet Rematna a I'art of It,
by Declaring its Validity.
In September following, a convention of aQ
the States but one, after they had been in aea-
sion from May preceding, proposed an ordi-
nance to be adopted by tbe people of each State
in their separate conventions.
"Constitution of the United SUtes."
"We, the people of the United SUtes. in w-
der to form a more perfect Union, eatablieh
juatlee, insure domestic tranquillity, provide iot
the common defense, promote the general wal*
fare, and secure the blesatngs of lil^ly to our-
selves and posterity, to ordain and eatabUah
this Constitution for tbe United States of
Its provisions have been noticed, ao f »r aa la
necessary for present purposes, except the Mb
article, which incorporates the ordinsnce d
July, 17B7, into tbe Constitution, as a oonpaet
or engagement, subject as the other parts of it
are, to amendments, pursuant to the bth artielft
Art. 8, 1. "AH debts contracted and engaga-
ments entered into before the adoption of tfab
Constitution, shall be as vslid against tbe Unit-
ed States under this Conslitutioo as under ths
eon f edera t i on."
Tbis was a conflrmation of tbe ordioaM^
giving it tha aame binding effect, ftb iniUo. ••
AXI QOT^UIUntT OV THE UiimD 8TAn
if II had bera « eonitltutlMuI prarlaloii fn all
Iti temii. It was perfectly ooauiUnt with the
<mlinaiice, which made the terHt«r]r and new
Btatea "tubject to the articlea of ooofedera-
tion," and Bitarationi 'therein oonBtitutiaDally
matle," and the acts of Congrwa, etc, eon-
tormable thereto; that whenthwe artidsi were
aboliahed, and the cmfederation waa eooveited
Into » federal govemment, the Conititution
which eatabliehed it should declare:
2d. "Thii Conetitution and the lawa of the
United Statea which iball be made, in parsu-
ance thereof, and all treatiea made, or which
aball b« made, under the authoritj of the
United Statea, shall be the aupreme law of the
land."
• 1*] Thua there are now, aa there were
under the confederation, two conatitutleni;
onm for all the territory belonging to the Unit-
ed Statea, by ceauona from particular Stataa, or
foreign atatei, In whieh a territorial gorem-
ment esiati, aoder the authority of Cangreu;
all of which have been e«ts.bliahed, oi^niied,
and administered, purinant to the ordinance
from 1787 to tUa day: and until a territory be-
eonea a State by the formation of a oonstitu-
tion therefor by the people thereof in oonven-
tiom, and ita admiuion into the Union by Cou-
greia. "The territory and Statea which may
be formed therein, forever remain a part of the
confederacy, aubjeet to the ordinanoe and to
the Conatitution, etc^ aa, under the omfedera-
tion, they were a part of the former confeder-
ftcy of th« United fitatei of America," lubjeot
to the articles thereof. When new State* are
•o admitted into the Union, in fuldllmont of
tke itipulationa In the deeda of oessian by the
original Statea, or of the treatiea with foreign
power*; they are admitted aeeording to the
^■rt^ea of compact," the "angagementi en-
tared into before the adoption of this Conttitu-
tion," "between the original Statea and the
people and States of the aaid territory," "on
no equal footing with the original Statea, in all
leapecti whatever." Then the eoustitution of
the State, having anperseded the articles of the
ordinance, as that of the United States did the
articlea of confederation (1 Wh. SSS); eaeh
State still haa two constitution* of government,
one for State, the other for federal purtKMea;
both ordained by the same people, and In the
■ama manner, in a convention of their repre-
aentatives, elected by the electora of the Statea,
for the apedal object, whereby in the aimple,
iBipreasive, inatructive, and strictly oonatitu-
tional language of this court, "The national
mnd State syitema are to ba regarded as one
whole." 6 Wh. 4H. "The powera of govem-
ment are divided between the government of
the Union and those of the States." "They
•re eaeh aorereign, with respect to the obiecta
eommltted to it, and neither sovereign, with re-
spect to tha objeeta aommitted to the other."
4 Wh. 410.
!■ this nnlon of political and Judicial author-
ity, we must know what waa "a State," an
•V>rigfaial State," a "new State," "the United
States,' "^he Congreui of the United Statu,"
and "Stataa so admitted into this Union."
We also Icnow wliat was the territory belong-
tmg to the United Statea in 1T87, by cession
from the States, by deeds of oeasion executed
by thair agent* or dolegatas in Congreas, apo-
• lb «d.
eially authoritad; of New York, h IT81 (1
Uws, '4119, 472) ; of Virginia, in I7M (lb. 472,
475); of MassachusettR, in I78£ {lb. 482, 484);
of Connecticut, in 178G (lb. 485, 486); of South
CBro:ina, in 1TB7 (lb. 480). We further know,
from the cession of Louisiana and Florida, by
treaties with foreign State*, how the soil and
jurisdiction of the new territoriea paasad defini-
tively to tbeie Statea; and that pursuant to
the stipulations thereof, and the ordinance of
1737, new State* have been admitted into thl*
Union, on an equal footing with th* original
States down to the present time. Nay, at thia
session (1837) "the Congraas" haa admitted
the State ot Michigan, formed out of the terri-
tory northwest of the Ohio, ceded by the States
'of the Union; and another, the State of [*•>
Arkansas, formed out of that ceded by a foreign
state, ot territory not in the United StatM,
into thia Union, on the principle* of the oldi-
The territorial govemment of those Statea
had Ijeen founded on tlw ordinance, and Lt la
now the baela of the governmcnta axistbg In
the territoriea of Wisconsin and th* Floridaa,
under the authority ot Congress, according to
the terms and oonditiona thereof. Congress la
therefore bound, and the fikith of the present
State* pledged, by the Sth article ot the Cea-
stitution, to futflU all it* atipulationa, whM-
ever these territories shall be entitled to be ad-
mitted into the Union as Statea. Now, than,
it may be most oon&dently assumed, as a self-
evident truth, manifest in the history, the
solemn acta of the colonies, the States in Con-
greea, the people thereof in oonventiona, direct-
ly asaarted in the ordinanoe, and con&rmed by
the Constitution in language plain, clear, and
visible to every eye, aiid impreasing on emry
mind thia faet—
The Old and New Btatea Are on an Equal Foot-
ing, and Adopted the Constitution In Con-
vention* of the People of Saeh State.
That all the new Statea which have been ad-
mitted, pursuant to the lit clause of the 3d
section, 1st articls of the Constitution, "fonned
of parte of a State with the consent of the
Legialatura of tha State concerned, aa well aa
<>f the Congreas," or pursuant to the ordinance
and flth article; have adopted it by the act and
power of the convention ot such new State,
wholly Independent of the action of any of the
old Statea or people thereof.
There are now thirteen new Statea which
have been admitted into the Union, eonfesaedly
on an eqnal footing with the thirteen old
States, Id all respects; it is therefore a po-
Constitution for tbem, while the ordinance,
and the 6th article validating It, remain in
force. The people of a territory may, at thcdi
pleasure, continue under a territorial gorera*
ment, after they are entitled to be«)me ft
State; It is a privilege which they may eserclie
or waive, and there is no power in the existing
States, the people, or the Constitution, to eon-
pel them to adopt any other govemment than
that prescribed by the ordinance.. It is idla,
then, to contend that a new State cornea Into
the Union by any other act or power than <rf
the people within iU limits by their own voli-
• If
I AHD Natdbx of thk CoRtmirnoii
tirai flo ttiat the onlf qneitlon which nmalna
ll, wbethtr the original Slates became cod-
■tituent part* of tbe United Statci, bj t%t\ty-
ing the ConBtitutioii in tbe aane manner u
the new. If the^ did. It waa by the met of the
people of each Stkte; if tbejr did not, then the
Coaatitution was made a aupreme law within
their territory, by an "oxternal power;" of
conaequence, the o)d States had not and have
not an equal atation or footing with the new,
but were aubordinata to a paramount power;
while the niw States have voluntarily adopt-
ed it. In the plentitude of fthaolute sovereignty.
•t*] *ThIa eoncluaioD it inevitable from the
premises aHumed, and the interpretation given
to the Declaration of Independence, in Tate
commentaries and eipoiitiaiu of the events of
the Bevolution, in tbeir bearing on the condi-
tion of the States in 1T7S, and thence till 178T.
It is not pretended that any legiilstlrs power
wa* ever granted to Congress, unless bj the
■rticle* of ITSl, the ordinance of I7ST, and the
Conititution; the separate Statu, therefore,
never hmd any such powers, or if they were
rested in them by origlnBl right, Congress could
not exerdae any le^timate authority within
the States, unless by their eeseion.
By connecting the foregoing view, whieh
prindpally relates to tbe right of dominion,
inrisdletion, or leEislatlve power of tbe eereral
States wltUn thm territorial boundaries, with
tbalr right* of loU to the lands, which remained
unappropriated at the Revolution, tbe same re-
sults will become manifest.
The original right of the crown to grant the
right of soil, and the powen of govemment, in
and OTBT the proprietary provinces, and the
right of soil in the vacant lands, in the royal
and chartered colonies, waa never drawn in
question after the Bevolution by any of the
State* on behalf of the oonfederaey; for when-
ever the crown had made a grant, it waa uni-
versaUy admitted that It waa valid. When the
proprietarv govemmenta were auperaaded bv
those of toe Btatea, the proprietaries were left
in the quiet enjoyment of their rights of prop-
wty, as in New Jersey to this day, or tbe
States were auSered to resume their vacant
lands, and to bold them without an^ claim by
the other States, for any share, aa m Pennsyl-
vania. Vide 1 Dall. L. Pa. 322; and in Dela-
ware. Z Lawa D. 1074. 107S But the States
whldi had no vacant lande denied the exclusive
right of those States whose right of boundaries
Bit ended originally to tbe South Sea, and after
the Treaty of Peace of 1763, to the Miaalssippii
and set up a claim to a proportion of the unap-
propriatDd lands within the limits of those
States, as a common acquisition by the eonfed-
erKtlon, for the common benefit, in right of con-
quest, and from Qreat Britain. But admitted
ttie legislative power of the Statea over tbem.
making no claim to juriadietion. Those Statea,
however, claimed the lands on the grounds be-
fore stated, as their own, by tbe devolution of
the rights of the crown to them, the guaranty
by the proposed articles of oonfederaey, and
U the treaty with Franoa.
To put an and to all future mmtrvwtnj, It
• IS
waa, by the ttk artlele of the former, p
"that no State should be deprived of territory
for tbe benefit of the United Statea." Cou-
neettng this proviso with the 3d article, auj tbe
2d and 11th articles of tbe Treaty of Allianot
with France, it is clear, tbat when tbe eonfed-
•ration becajne tbe aet of all the States, Cod-
greas could neither by treaty or atherwi>>« do
any valid act to afteci the territorial rights of
the Statea without a direct violation of tkc
express etlpulationa of both guarantica,
•and this proviso. This was the prtnci- [••*
pal reason why the final adoption of tbeae
article* waa delayed from November, 1777, till
Uarch, 1781. Various attempts were made Is
Congresa, to strike out, or so modify this pro-
^o, that the vacant lands should be deem^l to
be the property of all the States, aa a camoicm
fund for defraying the expenses of the war;
which having all failed, some of tbe States re-
fused to adopt thsm. In Hareb, 1780, Congress,
finding that the contraversj oould be do other-
wlsa terminated, recommended to the States
to malce liberal cesafon* of tbeir western Isjids
to the United State*, to whick Virginia mmd
New York agreeing, the articles were signed,
and eeasion* accordingly made by those and
otber States which were deemed satiafsctory.
Vide 1 Laws U. B. 11, 12, 20, £2, 24, W to 482;
6 Wh. S7S, 877.
From this time that dangeroua controversy
which had threatened to dusolva the eonfed-
cal question after the eeaaions of tbe States had
been accepted, and Congresa made no claiau to
soil or jurisdiction that were not in conformity
to the deed* from the respeotive Statea. But
tbe United States had not relinquished their
claims witbln the boundaries of thoee Statea
which had made no cessions, though they usde
no grants of land within the boundariea of such
States, yet, from the necessity of the case, they
eelabliahed a territorial government within the
State of Georgia, over the territory between
tbe Chattahoochie and Miaaissippi. It was done,
however, with the assent of GeorglH, who was
willing to surrender tbe jurisdiction, retaining
the right of soil. By the first section of the
act, there was a provision for the appointment
of commissioner* to adjust the claims to terti-
tory with Georgia, and to receive proposals for
the cession of the whole or part thereof, "out
of tbe ordinary jurisdictlOD thereof;" by the
second section, the lands "thas ascertained aa
the property of the United States, shall be dis-
posed of," etc- To avoid all controversy by
so doing, it was declared .by the fifth sccUon,
that the eatabliahment of this govarumeBt
shall, in no respect, impair the right of Georgia
to the jurisdiction or soli of tbe territory! but
the same were declared to be "as firm anJ
available as If this act had never been made."
1 Story Laws U. S. 494, 490; Aet of 1798. Ttak,
it will be seen, was in preeiae conformity to the
2d clause, 3d sea., 4th art. of the Constitution.
In 1602 an adjuatment was made betwca
Georgia and the United State* of all uattsi*
between them, by cession, and an acceptance on
the terms and eondlti<«s therein speci&ed (1
Laws U. S. 488, etc.), which seems to preclude
any future controversy about the right of soil
or jurisdiction I but unhappily they have ariats
AXtt QovtMXUttn Of TUB CKITCD BTltl
m (lie TndUn qiwitlon, In tbe eases of the
<nicrokeGs living east of the Chsttahoochie.
Ceargia having made no cesEil'in, and claim-
ing, a» has been seen, to the Mississippi, bad,
by the Act of I7S5, made sa'e of a large tract
on the Ybedo River; on the validltj of which
rnlr (he old qucation arose, whether those laaitr
licloQKed to the United States, or to Georgia, at
the time of the grant in ITQ5.
S3*] 'This was one main point direcCI)' made
in Fletcher v. Peck, on which tb[s court de-
cided that the title to the land was in Ccorg'a;
that she had a right to grant it, and that the
grant was valid to pass a title in fee simp te to
the purchaaers. 6 Cr. 142. The United States
acquiesced in that decieion, b; making a
oonipromise with the purchasers, and payinj
them a certain luni.
In Uarcourt t. Galllard, the same question
came up, and was decided in favor of Georgia,
as has iKen shown before. Vide 12 \Vh. 524,
etc. Herein will be found anolher strong il-
luxtratlon of the accordance of the opinions of
this court with the great acts of thp Revolu-
tion. Their judgment is founded on the Decla-
ratinn of Independence, the treaties of the
States with foreign powers, and the Treaty of
Peace. The guaranty of the States with each
other, by the third article of confederation, and
bj France to each, was of their posseaaions, as
well as in matters of government; the guaranty
to the confederacy was only of such conquests
or acquisitions as should be made from Great
Britain, without the boundaries of the par-
ticular Slates; "the whole, as their possession,
■hall be fixed and assured to the said States,
at the moment of the ceasalion of their present
war with England." i Laws, 08, BB. Now, as
no conquests were made by the confederacy,
and the poBSfssions of the several States were
fixrd by the Treaty ot Peace, nrcord:ng to their
original boundarirs, the confederacy could ac-
ijuire no territory as possessions, or jurisdiction
in matters of government, and this court have
declared, !n four solemn decisions, that they
did not. 4 Cr. BISj 8 Cr. 142; 12 Wh. b2ii lb.
534.
Taking it, therefore, as a political, or judi-
cial question, it has long since been put at rest,
not only by the authority of the Constitution,
mnd all the departments ot the government,
but in public opinion. It may then be as-
aumed as an unquestioned proposition that the
United States can have no right of soil within
any of the States of this Union, unless by a
cession from the particular States, or a luieign
State, who was the ori^'ina', abs <lute proprie-
tsiry thereof; from this propoaiLi.m another
equally unquestionable one necesaarily results.
Tbe Bights of Soil and Jurisdiction Are Con-
comitant and Inseparable, Unless bj tbe
8tat« in Whom Both Weie Vested.
It Is not deemed necessary to enter Into an/
course of reasoning, or any reference to author-
ity, to prove that the State which Is the abso-
h)ta owner of the territory within its bound-
aries, has the absolute power of government
over It; or that if the legislative jurisdiction
was br original right In a paramount power,
that the right of soil was In the same power.
If these propoaitious ara in*, a tUrd is aalf-
t II. ed.
evident; that If the right of solt or Jurisdiction
is legitimately exercised by any other than
such paramount power, it must be by Its grvit
or an hority, otherwise it must be void as an
usurpation. Grants of land or power, must
then derive their validity from the same sov-
ereign, who alone can separate the one right
from the other; *and hia grant mnst [**•
testify what he has granted, and to whom; the
separation is not to be made by theory, as-
seHion or construction. If the existing con-
dition of the country is such that the right of
soil is in a single State In full propriety, and
the dominion over it is absolute or qualitledly
in the United States, the original sovereign was
the people of the State, or the people of all the
Slates, as one "single sovereign power." I have
traced the right to property and power to the
peoole of each State, and deduced the title to
both from them to tlie United States, by their
deeds of cession, and constitution of govern-
ment; let those who assert that the right was
not in each State show how the rights of the
power* of government over the several States.
On the first organiiation of the federal govern-
ment in 1789, there were only eleven States
within the Union, yet the Constitution was
then ordained and established by "We, the
people of the United States." If they were the
whole people In the agcrej^te, in their unity of
power, the Congress of that day evinced their
most profound ignorance of the origin and
nature of the government they were adminis-
tering. As North Carolina and Rhode Island
had not ratified the Constitution, the revenue
laws put those States on the sane footing aa
foreign stales, kingdoms or counties. 1 Story
Iaws U. S. 30, 60. Ho provision was made for
the operation of the Judiciary Act of 1789
{Vide 1 Story, 63, etc.), and If the three
branches of the legislative power were not de-
mented, these two States were no more con-
stituent parts of the American empire at that
time than Canada and Nova Scotia.
The whole Congrees were demented. If tbe
same paramount power which maxle the Con-
stitution the supreme law of the land In the
eleven States, had not the same power over
those two States, to force them into the Union,
and make them subject to Its laws, without any
act of a convention of the people thereof.
Should this be deemed by theorists a propo-
sition too bold to advance, they must give sodm
good reasons to show why the Constitution and
and laws have now any more force in those
States than in 17S9; unless it has been by tbe
raliQcation of tbe people, in a capacity wholly
separate and distinct from the people of tiM
other States, who having previously done the
same act were functi officio, and could not act
Jointly with them. For myself I am utterly
unab'e to imagine any middle position to tw
assumed, by which to aeeonnt how North Oar-
olina and Rhode Island are now eonstituent
parts of the United States; that they became
so by the consent of eseh, aa the other States
did, is to me an intellisible proposition; but
how It has been, or could otherwise b« done, la
Incomprehensible to a mind aot aecnatomed to
search for mysteries in plaia wwdi.
Ouanr axd Natuu ot i
I OOHBTtTUnOS
• 7*] *The Preamble of the Constitution
Proapectlva, Referring to tlie People of ThoH
StAtee Which Rhould Ratify It from Time
to Time.
I hav« onlf to ftdd one other consideration to
illiutnte Um meaning of the preamble. All
tgree that the Constitution was to be esUb-
luhed by the people of the United SLatea,
whenever the convenLioni cf nine States should
ratify it; all must agree that when it was pro-
posed for adoptioa in ITST, it couJd not be fore-
ioen which of the States would so ratify it;
Um States therefore could not be named till
their separate ratifications were given. It pro-
vided for the admission of new States, but no
one could divine their names or locality; States
could be "formed by the junction of two or
more States," but none could say of which.
The Constitution was intended for posterity,
through all time; and for "the land," the whole
territory, and all the States, old or new; a«
one law, speaking in the same words, and with
the same intention, at the time it was proposed,
and at each period when any Stat« ratified it,
and thus became one of "the United States of
America," by the act of the people of the States
rupectively.
Wh<in the tenns "we, the people," "of the
Unitetl States," are thus applied, they seem to
me not only appropriate to the instrument, but
the only terms that would be ao; it uses terms
in all its parts yet we find no definitions or ex-
planations; it waa not intended for a code;
Mid the term "people," was a mero designation
of the jmwer by which the Constitution was
made, as "the States" were deaignated by their
•eparate ratifications. Hence it referred in 17S9
to eleven only, then to the old thirteen States,
«pd now refera to the thirteen new States:
and when other* shall be admitted into the
Union, it wIU refer to them as it did to the
old, and now does to the new, "The people"
"of the several States, which may be included
within this Union," is the oonstituent power
of the federal government.
Congress Ha* no Right of Soil, or Jurisdiction in
Any State; Unleaa It Is by the Grant of the
State.
I can adopt no course of reasoning, or use
any language that so well supports these posi-
tion*, as that of the late Chief Justice of thU
court. "It i* in the 8th section of the 1st
article we are to look for cessions of territory
iLBd of ejiclusive jurisdiction. Couf^ess has
power to exercise exclusive jurisdiction over
this district, and over all places purchased by
the consent of the Legislature of the SUte in
which the same shall be, for the erection of, etc.
It is observable that the power of exclusive
le^slatton (which is jurisdiction) i* united
with cession of territory, which is to be the
foee act of the SUUs."
"It Is dlUlcult to compara the two aeotions
together without feeling a conviction, not to be
■trengthoned by any commentary on them, that
in describing the judicial power, the framers
• 8*] of our ConsUtutloD 'had not in view
any evasion of territory, or, which I* eaaantial-
ly the same, of general juriadiction."
"It is not queationed that wliatever may be
ibe full and unlimited exercise of
admiimlty, and maritime Jurisdiction, b h Oa
government of the Union. Congreaa may paai
all laws which are necessary and proper fw
fiving the most complete effect to tiiia power.
till, the general jurisdiction over the plaee,
subject to this grant of power, adheres to th«
territory, aa a portion of sovereignty not jet
given away. The residuary powers of legisla-
tion are still In Massachusetts. Suppose, for
example, the power of regulating trade, had
not l>een given to the general government;
would thia extension of the judicial power to
all case* of admiralty and maritime jurisdio-
tion, have devested Massachusetts of the power
to regulate the trade of her bay I" S Wh. 39t,
389.
Alluding to the powera of Congress, wher-
evir and nowever exercised, the court use thi*
language: "This power, like all others which
are specified, fs conferred on Congres* as tb*
legislature of the Union; for, strip them of
that character, and they would not posseea it;
in no other character can it be exercised." <
Wh. *24.
"Since Congress legislates in the same form*
and in the same character, in virtue of powei*
of equal obligation, conferred in the same in-
strument, when exercising its exclusive power*
of legislation, as well as when exercising those
which are limited," etc lb. 429. The court
put tbcir finger on that power which enabled
Congress to legislate in the States, or el**-
"The American States, and the American
people, had been taught by the same experience
that this government would be a mere shadow
that must disappoint all their hopes, unless in-
vested with large ^rtions of that sovereignty
which belong* to mdependent States. Under
the inAuenoe of this opmion, and thus instruct-
ed by experience, the American people in the
conventions of their respective Statea, adopted
the present Constitution." 6 Wh. 380, 381, ^A
judicial system was to be prepared, not for a
consolidated people, but for fiscinct societies,
already posses sing distinct systems, and ac-
customed to Uws which, though originating ii
the same great principle, had been various'
modified." 10 Wh. 48. "The power having _e:
sted prior to the formatiou of the Constitution,
snd not having been prohibited by that instru-
ment, remains with the States, subordinate tr
the
power granted to Congress on the same sob-
y 5 Wh. IB, 17. S. P.; B Wh. 108. 190; *
Wh. 426; 12 Wh. 448; 2 Pet. 488.
"It is not the want of an original power in
an independent sovereign State to prohibit
loans to a foreign government, which restrains
the (State) Legislature from direct opposition
to those made by the United States. The re-
straint is Imposed by onr Constitution." t
Pet. 408.
Had the Constitution not been adopted, the
court point* to that power which alone can le-
atrain "a single sovereign unconnected power"
(6 Cr. 130): a State, a nation, over whom no
external power 'can oi>erate (7 Cr. 136); [•••
an independent sovereign State [2 Pet. W>,
which can restrict itself, and open it* territorial
boundaries to another jurisdiction. In thne*
and the opinions of the court already referred
to, I find m my judgment the moat ample sup-
port of the preceding viewa.
Axs GovntKKEtn or Tax UmriD Btati
That the righto of toll and gcMral jnriadle-
tkm OTer the whole territm^, within the
bomidkriee of the (everftl StftUa, wa* inTGBted
In the people of each, ad absolute bot-
ereigne of both; that neither right oan be
axercised, but hj a grant from them, and that
what ii not given away by cession, itiU renaaine
with them. Residuary sovereignty is also de-
tned to be what each State haa reBerved to it-
•elf, or excepted from the grant; and not as
commentators define it, what "the people of the
nation," have been pleased to leave, to "the
people of the States respectively."
If, in the course pursued, I have used plain
terms in relation to those theories which ap-
pear to be in direct contradiction to the whole
political history of the country, to ail the
declarations of the rights of the States and
people, by themeelves, by conventions, legis-
latuiea, Congress, aa weil as all the great
principle* of government, thua announced and
sanctioned by this court; if in testing the
bonstitution by these fundamental principles,
lad the old established naxiras of the common
[aw, I have arrived at concluaions which do not
luit the spirit of the times and the hablU of
ths day in constitutional discussions, it has
teen In submiesioa to the constituted au-
thorities of the country, political and judicial,
rhose union of opinion, and their striking co-
nddence with the words, provisions, and bla-
Mry of the Constitution, leave no doubt on mj
Bind aa to it* meaning and intention. In ai-
iresaing my views, in terms of perfect oon-
dotion of their correctness, it )s not from any
'Bliance on mv own opinion, or train of rcHson-
Dg; bnt havmg found fundamental principles,
DO dearly established to be shaken by any
luthority, subordinate to that of this court, I
e«l with them that "this concurrence of states-
nan, legislators, and of judges. In the same
(Kiatruction of the Constitution, may justly in-
plre some confidence in that construction." 6
vh. 421. In one respect, tny conclusions differ
rom those of the late Chief Justice. To my
nind he has given no construction to the Con-
titutjon; he has only declared what it says,
J carrying out the definition of the general
emu it uses, and making a practical appli-
ation thereof to the various cases in whiim he
■a delivered the opinion of the court.
On inspecting the Constitution judicially, no
aa can fall to be impreMed with the truth and
>rce of his remarks.
"A Constitution, to contain an aci'urate de-
kil of ail the Bu1>iiivisions of which its great
owera will admit, and of all the means by
hich they may be carried into execution,
ould partake of the prolixity of a legal code,
nd could scarcely be embraced by the human
lind. It would probably never be understood
y the public. Its nature, therefore, requires
lat only its great outlines should be marked,
a important objects designated, and the minor
OO'] ingredients 'which compose those ob-
nta, be deduced from the nature of the ob-
etfl themselves. That this idea was enter-
ined by the fiamers of the American Consti-
ition is not only to be inferred from the na-
cre of the instrument, but the language. Why
■e were some of the limitations found in the
b aection of tha 1st article, introducedT It
also, in aone degree, warranted by their hav-
ing omitted to nae an^ reatrletlre term, which
might prevent its receiving a fair and just In-
terpretation. In considering this question,
then, we must never forget that it is a Consti-
tution we are expounding." 4 Wh. 407, 8. P.j
1 Wh. 328.
This great and good judge never forgot Or
disobeyed this injunction: no commentator ever
followed the text more faithfully, or ever
made a commentary more accordant with its
strict Intention and language ; he never brought
into action the powers of hie mighty mind to
find some meaning in plain words, of known
import, and in common use, that would be
above the comprehension ot ordinary minda.
He knew the framers of the Constitution, who
were his compatriots; he was the historian of
his country; so that, aa the expositor of its su-
preme law, he knew its object*, its intentions;
could and did apply to It the rules of iaterpre-
tat ion, as the principles of law, theh under-
stood, according to the political condition of
the people, the States, and the state of the
times. Though It is now the fashion of the
day to practically consider his opinions as less
worthy of attention in and out of court than
is paid to others; the time is not distant, in
my opinion, when public opinion will unite in
considering the Constitution and the judicial
commentaries upon it made by this Chief
Magistrate, the best evidence of the law of the
land. What Lord Coke said of the civil law, in
his time, may, with great truth, be applied to
the Constitution, in the present, and the glossee
apon it;
"Upon the text of the dvll law, there be
BO many glosses and Interpretations, and again,
upon these, so many commentaries, and all
these written by doctors of equal degree and
authority, and therein so many diversities of
opinion, as they do rather increase than re-
solve doubts and uncertainties; and the pro-
fessors of that noble science say that it is like
a sea full of waves. The difference, then, be-
tween those glosses and commentaries and thli
which we jiuhliah, is, that their glosses and
commentaries are written by doctors which he
advocates, and so, in a manner, private Inter-
pretations. And our expositions, or commen-
taries upon Magna Charta, and other statutee,
are the resolutions of judges, in courta of jus-
tice, in judicial causes of procpeding; either re-
lated and reported in our books, or extant in
judicial records, or in both; and, therefore,
being collected together, shnll (as we oonccive)
produce certainty, the mother and nurse of r«-
poae and quietness, and are not like to the
waves of the sea, but satio henefida peritis,
for jndiela aunt tanquam jurisdicta." 8 Oo.
Inst, proeme finis.
What this judge would have said had b*
lived in our time and country, and aeen the
glosses and commentaries which have been
"written within the present century ['lOI
here and in England, upon the Constitution and
the common law, is not difficult to imagine.
His motto was qui patiens qui prudene; Ul
patience and prudence would have been pnt t«
a severe trial if he was compelled to undergo ,
the infliction of listening to these gloaiea, -
which, like the waves of the sea, beat upon na
la a couttant flood, increasing 1b elae with
•SI
101
Obigir i
9 Natubk of thc CowsTiTUTioii
eT«r7 foreign trnportAtion or home prodnetioii
of books.
Thkt thef will not produce that certaintj in
the law whicU ia the mulher nud nurse of
quictneeB and repose, musL be well ascertained:
that it will be produced b; looking into and ad-
hering to the decUion of this court on consti-
tutional quGstioni I am well assured, and have
therefore referred to them aa safe commen-
taj-iea upon Its text.
Tliere ia another conai deration of conoIuaiTe
weight on my roind.
By taking tha Conititution oa the grant of
the people of each State, aa the depositoriea of
the abiolute and unlimited powera of govern-
ment, in their originil aovereij^nty; their grant
convcfi the aamc power which wa« in the
grantor before its execution; of conaequenee,
the powers of the federal government will have
a Bupremai'y proportioned to the lupremacy of
the grantor.
It will bind the Statea by the aovereign
power which they all acknowledge; it will M
their own voluntary act, their full and free
ceBBlon of jurisdiction, ao that the more abso-
and the security from violation. By adopting
the oppoaita principle, which ascribea the
creation of the government to the people in the
aggregate, the doctrine of consolidation is
necessarily introduced as its foundation; this is
BO repugnant to the Constitution itself, and the
universal opinion of the convention* which
framed and the people who adopted it, that it
will never be aequieaced in. The principle it-
self is ao utterly repugnant to all American
ideas of government, that it will be resisted and
opposed even in theory, when it ia once made
the foundation for the action of the govern-
ment, and referred to aa the source of its
powers, and we must expect to witness the
reality of what hsa once threatened its exist-
ence. It the Statea of the Union were sovereign
and independent States before the adoption of
the Constitution, and the grant of legislative
powers by it was not made by the several
States who ratified it, then they retain all their
pre-eziBting powera, and Congreas act by an
usurped aulborlty. On the theory, then, of
the unity of political power In one people, there
will be fastened the antagonist principles of
consolidation and nullification, under the prea-
■ure of which the government must fall. On
the other band, if tne government is admitted
to be the work of the separate people of each
State, there can be no pretext for nulliflcation ;
the sovereign power of the State has made the
grant; has dedaipd it the law of the land, su-
preme in obligation over its own laws and
constitution; has commended its judges to obey
it; has appointed a tribunal to expound it, and
bciwid itself to abide by change* to be made by
alterations or amendments. The people and
the States will, like individuals, submit to the
109*] privation of those rights which *tfaey
have granted to another; but when any claim
of property or power is made under an adver-
sary or purainount right, they will call for the
exhibition uf the muniments of original titlt
and its regular deduction to whoever claims it
exercise; If not producad, the; m»y «nd will
rMlat.
•aa
No danger can assail tha Conatltntton wIM
will be ao difficult to avert as by the pro-
fessed friend* of its supremacy, renouncing aad
disclaiming a title perfect in itself, and endeav-
oring to place it upon a grant by a power which
exists only in theory, and from whom no title
can be deduced by any visible or tangible ad
Tha ConaUtution Preaeribea the Bule of lU
iDterpretatioii.
I cannot close tbis view of the Constitution,
without again referring to that clause of the
instrument which, connected with its exposition
by this court, I have oaJd ia the key to it*
meaning; it is also the rule preacribed by its
framers. whereby to aacertain the extent of
the grant of territory or jurisdiction, the right*
of soil, the powers of government, as well as
the restrictions on the States. "The Congress
shall have power to dispose of, and make all
needful rules and regulations respecting the
territory or other property belonging to the
United Statea," and nothing in this Constitu-
tion shall be so construed as to prejudice any
claims of the United Stat«i, or of any par-
ticular State.
It haa always seemed to me that the latter
part of this elauae I* one of the most, if not
the moat Important sentence in the whole in-
strument; though it has received but little if
any attention. Its words are most compre-
hensive, extending to the whole Constitution,
as well as to every subject to which the United
Statea, or any particular Slate, had any claim;
they must not be deemed senseless, but have
■ome meaning and application, which will corre-
spond with the preceding part of the clauM;
the intention with which they were Introduced,
and the subject matter of reference. By this
clause a power was given to dispose of and
regulate the territory or other property beloDg-
ing to the United States, acquired, as has beea
seen, by cession from the particular Statea of
the Union, or foreign States; and that rrgn-
tation was but another word for legislation,
and the power of ereatina territorial govera-
nients or corporations. It nas been also shown
that this court have uniformly held that tht
right to property and jurisdiction, or lajlfa-
latlve power, are concomitant, and vested ia
the same original proprietor of the soil ol >
State or territory; and that all the powen t-f
Congress, whether exclusive over their on
property or territory, or limited over the aev-
eral States, is of the same nature and char-
acter, oonferred by the same instrument, a* oae
uniform law throughout the United Slate*.
To regulate, implies power over the thinf to
be regulated (0 \Vh. 20B) ; to prpscribe rJea,
to make laws, it is exclusive over the e«deil
territories, because the cession of soil carrira
with it jurisdiction, unlea* otherwise expieaaciL
It is exclusive within this district, baeause tb*
States in their cession made it so; it ia ex-
elusive, concurrent, or 'federal only, ['l^S
over forta, arsenals, etc., according to the beram
of the cession by a State, or ita consent to tbs
purchase; it <b fpderal over the States, its ter-
ritory, or the property of its citizens, limital
by the Constitution to enumerated objerts:
but in whatever mode, or to whatever exteot
it la or can be exercised the power ariacs fro*
the oesaioB, by a legiaUtlva aot and the Ooarti-
um GovuKUEHT OF 1
tatlos. Tbb elauK, tharefon, «f neceuttj r
f«n to whatever power or property hu been
any way granted to the United States by the
OoBBtttntJon, or whkh had been preTioiuly, or
■houtd thcTMftsr be ceded t« them, to that tt
belonged to them; and the proviao, limitatioD
and prohibition, nnut have a reference u
bmtd aa itt subject matter and ezpreaa terma.
R ia a declaration that the claima of the
grantaa to what !■ granted ahall not be prejn-
Bleed bv any conBtruetion of anything con-
tained in the Conatltutloo; ao that, fn the
language of this court, the powera of the gov-
rrament ahatl not be ConaErued and refined
down to inaigniHoance. It ia also a declaration
that the claima of a grantor to what waa un-
gnnted and not prohibited, ahould remain nn-
prejudiced by any broad conatruetion of the
grant, which would take away the reserved
powera of the Statea, or the people; the inten-
thm of which is apparent, by recurring to the
■ of th» --'-'-—'— '- -i>-t
second article c
■ confederal io
I which
diction, not eipresEly delegated to the United
States,' and to the ninth, which protected their
territory.
Bach a clauae would have defeated the great
objects of the Constitution unless all powers
Intended to be granted had been enumerated '~
detail; "the minor ingredienta," as well aa "tl
great outlines;" which would have made It
prolix code, unintelligible to those for whose
regulation it waa intended. Vide 4 Wh. 407.
On the other hand, it would Iiave been almoat a
hi^teleas eftort to have effected ita adoption
without some clause of limitation, by which a
rule of interpretation ahould be laid down as
fundamental. We know, ns an hiatorical fact,
tliat It waa not adopted by alt the Statci till
»ft«r tho amendments were made, among which
tha t«nth waa deemed the moat Important. No
man could better know, or more deeply feel the
dangerous cffeeta to the Union of contests be-
tween particular Slates and the oonfederacy;
tba danger of conflicting claims to territory had
been imminent; it was Bverted by cessions, by
the States, made In the spirit of compromise.
Stx years of experience under the confederation
bad taught them the necessity of eessiona of
legislative power, in the same apirit.
During Uie Revolution, the contest was for
property, which was settled by the adoption of
tb« articles of confederation, which prohibited
the United States from depriving a State of
territory for their benefit. It did not require
the spirit of prophecy to foresee that under the
OoBititutioa, there would be a similar contest
for power, and It would have been strange if
■one endeavor had not been made to avoid it.
It waa a moat delicate elTort to so frame a
eonatitution as to define the precise line by
ivhich the granted and reserved powera of gov-
•mment should be so separated as to avoid any
104*] collision; 'the necessity of the case re-
qulrea it to be on some point, lietween a dele-
gation to Congress by express words, and such
general terms aa by construction might be held
to comprehend such as were not granted to
them. Perhaps a better term conTd not have
b«en used than the one adopted, to avoid both
dffDculties. "Shall be adjudged," ia a parlia-
niMitaij term of great signitiaaiicy; a word of
" it audi n MNutmetloB aliall bi
t Uhitcd Statu. lOS
giren, as In the IS Dor. !, prohibiting tbe kfaf
from granting land by any other than tka
tenure of soccage. His grants muit be ao tnka
as to convey such tenure, whatever but b*
their words (Vide ante, and 3 Ruff. lUh
"Shall not be construed," ia a term In the lltt
amendment, the meaning and elTaot whereof
has been settled by this court, aa before stated;
and must receive the same interpretation when
it ia found in the body of the Instrument.
Wben, therefore, we find a declaration,
"nothing contained In this Constitution shall
Im so construed." etc, it can have no meaning,
unless it be to prohibit any interpretation Of
the grant by which it shall operate to tha
prejudice of the grantor, or grantee, by etm-
■truction merely, Talien In oonnection with
the 1 0th amendment, auch intention is ap-
parent; by preserving what is not granted or
prohibited, tnat which ii granted or prohibited
IS not reserved; whereby the grant must be in-
terpreted according to the import of Ita lan-
guage, without atraining It tieyond, or within
Its obvious meaning.
This court has carried out tbe rule prescribed
by the Constitution, according to its spirit and
Intention. "Tbe powers actually granted must
be such as are expressly given, or given by
neceaaary implication." "The inatmment U
to have a reasonable construction, aeoording to
the import of ita terms." "Where a power Is
given in general terms. It Is not to be restrained
to particular cases, nnleea that construction
grow out of the context expressly, or by neces-
sary Implication." 1 Wh. 320. Words which
import a power should not be restricted by a
forced construction. S Wh. 423. A almllar mte
ia applied to cessions of property. A term need
in connection with, and explained by tba other
Girta of the instrument, ao as to show a clear
tentlon, will be eonsldered as a part of, and
explanatory of it, to carry the intention Into
effect. "Bnt If no such conclusion can be
drawn, the term must receive its legal and ap-
propriate inteipretation." 10 Pet. 53. "There
must be something to talce the term out of tha
strict, legal and technical interpretation; it
must appear in the Instrument to warrant any
other construction." lb. 54.
These rulea are those of the common law.
An impllcatitm which necessarily results from
the words used, ia of tbe same effect as expreas
words; because they equallyserve to show the
intention of the grantor. Worda are bnt the
evidence of Intention; their Import ia their
meaning, to be gathered from the context, and
their connection with the subject matter. "It
is proper to take a view of the liberal meaning
of tbe words to be expounded, of their oon-
nection with other words, and tbe general ob-
ject to be aecompHahed by the prohibitory
clause, or the grant of power." 18 Wh. 43T.
*ln thus aaceriaining the meaning of [*!•§
an instrument of writing by the express words
thereof, or their necessary implication, It is
not mere construction; It ia following tha in-
tention apparent on Its face. If not In wordst
It is their plain meaning, taking the whole to-
gether. It wholly differs from that mode of
construction which is resorted to In order to
infer or impiv the grant of one thing by the
grant of another; to ralae an implication ^ tha
words of a grant, by matter SKtrBasoas, to
Ousni Am Natdbb or nu CoFtmunon
whteb M> raferenoe Ii mads tn mj put <tf It]
to Bsek, sliuude, for an intention wbfeli the
word! do not import. That impiiotion or eon-
■tmetlon wUeli tbe law p«nnit«, U wtiat the
JudloiBl cf* can parceiTS, by inapeotion, to be
thi Intention of tho writing and the partlea;
Mot t^t which can be gathered onlj from mat*
Ur net eontaiacd in it, bj aaaumptioa, >up-
poaltioa, Ingoaioiia reMMiing, or o(m}aetnro, of
motivaa, objeeta, m intentioBa. Tu first le
applied to all Inatnunenti; the latter ii rajeet-
•d, as mere parol eridenee, which the law ra-
pudiatea whenever it ia offered to oontradiet,
axplaln, or eontrol a writing.
Bj Iceeping in view thfa diatinetion between
tka neceeaarr implication apparent in the writ-
ing, or, M Blackatone ezpreeaea it, "the eTl-
daat ooneequanoa" (1 Bl. Com. 260) or con-
duidoa whteh reaulta from its Inepectio;
the OoBstitntion and thie court ia the
One ftower, restriction, prohibition, or raaw-
Tation, is not to be implied from anotheT} it ia
inoompatible with a grant hj enumeration of
the things granted, and which "deala in general
language." If it ia once a aettled rule of ooB-
atniction that an/ power can be infused into
It, which on its face doea not appear to be
granted; or any power restricted by mere con-
struction, which is granted, the system becomee
ntterly deranged. Nothing can more elearly
indicate the bitention of ita framera to ex-
dtide the doctrine of oonatrnctive powers or
conatntctiTe reatrwnts, than the ITth clause of
the 9th section of the 1st article.
Not willing to leave to the Congress the ax-
ereise of any powers not enumerated, however
indlapenaable to their efficient action, or to
paralyse the legislative power by withholding
the power of executing its laws, a distinct and
express grant was made, "to make all laws
which shall be necessary and proper for carry-
ing into effeet the foregoing powers," etc Not
t» extend the jnrbdiction of Congress to any
subject natter of legislation not enumerated
fn the grant, but to enable it to execute the
laws it was authorised to pass. The great and
incnrable defect of the confederation was the
dependence of Congress on State lawa to ex-
ecnte and to oarry into effect their resolutions
and requisitions: generally speaking, the juris-
diction of the old and new Congreaa waa the
same, azcept as to the regulation of commerce
and a Judicdsl system. The States would not
delegate the power of execution to operate
directly on the subjects of its jurisdiction; the
pM^e of the States granted this power by the
constitution, by which alone the federal gov-
ernment became efficient and competent
106*] *to the objects of ita creation. It has
been said that Congress would have had this
power without an express grant, according to
the rale of law that the grant of a thing is a
E,nt of the means necessary for its cnjoymenL
t however true this may be aa a mere legal
pnfMisttlon, it never waa a prnoiple of Ameri-
san govsmment, but a eontnry role applied to
ths powers delegated by the confederation; it
nqnired the invocation of the sovereign power
of the people of each State to change it, by
naking an express grant of a power which —
Bute would have '
•14
t permitted to be sMroised
within its limits bnt by its own ooMant. I am
well aware that this clause has been views!
otherwise by this court; they have held it te
be a grant, bj Ita terms, of the means w tbs
have applied to I
which It does not
That the power Is a^reaa, and its objects
definitely declared, is plain, "to carry into el-
fsot," to pass "aucfa laws aa may be necessary
and proper," for the executing and enfoicing
the powers granted by the Conatitution to the
federal government, its departmeota and ofl-
cers, and not by that of the States, as nnder
tha confederation. That It is the all-Important
and vital power of the federal govenuneat,
which must exist in full vigor, and be exer-
cised with flnnncsa, in order to perpetuate Ita
exiatenee, la admitted by all. In my opiniea
this power is weakened by making it by ooa-
■truction, an implied, and not an expiMi
power, and extending it to other objects than
those of exeention; and if It ia so extended,
there can be no limits assigned to ita exerdst
than the discretion and judgment of CongrM^
as to the degree of neceasitpr, or propriety. III
the given case. No power is so dangerous ss
that which makes necessity Its source, (or
necessity will always be assumed when a pta-
text is wanted. When the Constitution gives
a discretionary power, depending on the neces-
sity of the ease or its urgency, it does so In
terms; as suspending the writ of habeas
corpus; and a State laying duties on imports
or exports, or engaging in war: but this dis-
cretion differs, esBentially, from that which Is
confided by the clause under consideration. It
is confined to the neceaeiCy of making a law,
appropriate for the execution of apeciQc powen^
over the enumerated anbject matters of l^is-
lation; whenever a new subject of juriadictiOB
is introduced. Congress act by no legitimate
authority. This court has declared that eonfi-
denoe in the discretion of the States waa not a
principle of the Constitution (0 Wh. MS, ate);
conSdence in Congress is equally unknown to
its proTisions, unless In those parts which ex-
pressly declare it, in certain cases which are
exceptions, applied alike to the federal and
State legislatures.
There is another powerful objection to eon-
aidering this clause in *any other as- [*10T
peet than an express grant of legiBtstive powers
of execution, bi refwring it to the meana of
execution, by the assumption of jurisdietlcM
over non-enumerated subjects, there necessarily
ariaes a collision of opinions about the degree
of necessity for using such means, whlcV no
reasoning can settle; it is but opinion, the cor-
rectness of which can be tested by no fixed or
determinate standard of authority. Thoee who
think a power necessary will exerdse It; tbosa
Constitution, this elansa has been, n>d yal ee«-
AKD UuvtaxuEHT or tut Urited SrAna.
InvM to be, the debatable grotind of contmd-
□g MTtiM, and remaiiu kj unsettled in public
nj^ioi) as tb« preamble to the Constitution.
One g\ve» It luch a conBtraction as will enlarm,
tha otber construea it lo aa to contract, the
powers of the government to tbe utmost posai-
bla extent to whicb plain language can be per-
verted, by refined, ingenkiuB, and powerful
mlnda, reasoning under the influence of polit-
ical opinion, each overlooking the declared im-
port, and necessary Implication of the words.
It cannot be doubted that these contests
tor power were forcKcen hj tbe frameis at tbe
Constitution, and I have always been satisfied
that they intended to guard against both con-
structions, so as alike to prevent the powers of
Congress from being frittered down to 'aiefti-
ciency for the objects of the frrsnt, or the re-
served powers of the several Slates from being
uBDTped — by construction. No clause could be
mors appropriate to the purpose, and
could more clearly express the intention, than
that "nothine in this Constitution shall be so
construed." I do not feel at liberty to ezponge
one word from it, or to give it a more narrow
application than it imports; it embraces every-
thing in the Constitution, whether by way of
grant or restriction, and prescribes for the In-
terpretation of all its provisions, the only rule
bj which its true meaning can be ascertained,
aod the movements of the State and federal
syatema be preserved in harmony as one great
whole. It ought, in my judgment, to receive
the most liberal and benign interpretation
which the words admit of; and if so taken,
will effectuate the most salutary result — "cer-
tainty, the mother end nurse of tbe repose and
^oJetaeas" of tbe Union.
These are my general views of the Constitu-
tion, eitntcted from those sources of political
and judicial authority which have been fol-
lowed as safe guides; for their prolixity or te-
dloneness I have no apology to offer to ths
profession other than my sense of the necessity
of resorting at large to some better mode of tx-
pounding the Constitution than has been hith-
erto pursued- It was necessary to explain my
own peculiar opinion, on the cases depending
and decided at the laat term, as well as in some
Srevious ones, wherein I have hitherto differed
rom the other judges; for which position. It
waa proper that my reasons shnuld be under-
stood by those who should desire to know them.
Having now done this, I have only to show
that in combating propositions and theories
which I considered as unsound as dangerous,
as repugnant to the provisona of the Constitu-
tion as the judicial exposition of its great prin-
lOS*] ciplea, and the definition *ot its terms,
I have not made them from fancy, and in such
form as to enable me to put them down.
la the followinf^ extracts will be found the
antagoniat propositions to those which I have
endeavored to establish. The exalted charac-
ter and stations of the eminent persons who
have given their expositions of tbe Constitution
entitle them to the most zrave consideration
and profound respect, and forbid the imputa-
tion of an intention to refer to names, and not
to things. The following extracts from an able
and learned oommentary on the Constitution,
pabliahed in 1S38. thus daflnea a State eonstitn-
lleni
• I>.«d. fl
"^t is a fitndamental law, preseribed bT the
will of a majority of the people of the StaUa
(who are entitled to prescribe it), for the gor-
emment and regulation of the whole people.
It binds them as a supreme oompact, oraaiiied
by the sovereign power, and not merely aa a
voluntary contract," ete. 1 Btory Com. SIT,
S19, t
!. S*9.
thus deflnee the Oonstltotion of the Untt*
ed States: "It is not a compact; on the eon-
trary, the preamble emphatically speaks of It
as a solemn ordinance and eetaUlshmeat «f
government. The language Is, 'We, the people
of the United States, do ordain and eaUUtik
this Constitution for the United States of
America.' Tbe people do ordain and establish
{not contract), and stipulate with each other.
The people of the United States, not tbe dis-
tinct people of a partieular State, with the
people of the other States. The people ordala
and establish a constitution, not a oonfedera-
tion." lb. 319, sea. 3S8. "It was, neverthelsM,
in the solemn instruments of ratification bf
the people of the several States, sssented to as
a constitution." lb. 3£3, sec. 360. "But that It
Is, as the people have named and called it truly,
a constitution ; and they properly said. We, the
people, etc., do ordain, etc., and not we, the
people of each State." lb. SST, sec 300.
"The doctrine, then, that tbe States are nar-
ties, is a gratuitous assumption. In the lan-
guage of a most distinguished statesman, the
Constitution itself, in ita rery front, retutea
that. It declares that It is ordained and estab-
lished by tbe people of the United States. So
far from saying that It Is established bj the
governments of the several States, it doee not
even say that U i> eetabllsbed by the people of
tbe several States) but it pronounces that it ta
established by the people of the United States,
in the aggregate. Doubtless tbe people of ths
several States, taken collectively, oonstitute the
people of the United Btatea. But it ia in this,
their collective capacity; It la as all the people
of the United States, that they establish the
Constitution." lb. 332, 333, sea. 103. These
propositions are laid down In terms so explidi
as to be susceptible of no misunderstanding aa
to their meaning; it is, therefore, unnecessary
to pursue the remarks of the author any far-
ther, in order to develop his ideal aa to the
origin of the present government*.
commentator thus notice* and
defines the origin and nature of the two gov
emments which preceded the present, as the
correct conelusionB drawn from tbe political
blatory of the country, 'from the aa- [*10t
eembling of the first Congress of the Devolu-
tion till the adoption of the articles of confed-
eration, end thence till the adoptitw of tha
Constitution r
"Tbe L I' frees of Delegates (calling them-
aelres in tlu'>r more formal acts, the delegates
appointed by the good people of these colonies)
assembled on the 4th of September, 1774, and
having chosen ofllcera, they adopted oertain
fundamental rules for their proceedinga. Thus
waa organised, under the anspicea and with
the consent of the people, acting directly in
their primary soverei(;u capacity, and without
the intervention of tiM functionaries to whoB
the ordinary power* of government were dele-
' ' ' ths eotooiee, the first general or nft-
N axd Hatdbk of tsb Corn
tknal go*«miiMnti which hM been very aptly
called the revolutionary government, aince. in
It* origin and progreta It waa conducted upon
revolutionitrj principles. The Con^reu thus
■raembled, exercised da tuAo and de jure, a aoV'
ereign autharity; not aa the deleguted ageiita
of the gDvemmenta, de facto, of the colonies,
but in virtue of odsinal powers derived from
tba people. The revolutionary ^vemment thus
formed terminated only when it waa regularly
BUperseded by the confederated government, un-
der the artielea finally rating aa we shall
hereafter see, in 1781* I Story's Com. IBG,
186, see. £00, 201.
"In the first place, antecedent to the Deela-
ration of Independence, none of the colonies
warn, or pretended to be, sovereign States, io
the sense in which the term sovereign ia some-
time* applied to SUtea." lb. 101, see. 207.
"Strictly Hpeaking, in onr republican forms of
govemment the absolute sovereignty of the
nation is io the people of the nation, and the
residuary sovereignty of each State, not ^ut-
«d to any of the public functionnries, i* in the
rple of the State." lb. IQS, sec. 208. "Now,
s apparent that none of the colonies before
the Revolution were, in the most enlarged and
general sense, independent of sovereign com-
munities." lb. 190, sec 210.
"In the next place, the aolonie* did not sev-
erally ai^ for themselves, and proclaim their
indepcndenoe." lb. 197.
"But the Declaration of Independence of all
tbe colonies was the united act of all; it was a
declaration by the representatives of the Unit-
ed States of America in Congress assembled, by
the delegates appointed by the good people of
the oolonies, a* in a prior declaration of rights
they were called. It was not an act done by
the State governments then organised, nor by
persons chosen by them. It was emphatically
the aot of the whole people of the United
States, by the instrumentality of their repre-
sentatives, chosen for that among other pur-
poaea. It was an act not competent to the
State governments, or any of thent, as organ-
ised under their charters, to adopt. Those char.
ten neither contemplatad the case, or provided
for it. It was an act of original inherent sover-
eignty by the people themselves; resulting
from their right to change the form of govern-
ment, aiid to institute a new government
whenever necessary for their safety and happi-
ness. So the Declaration of Independence
treats it. No State bad presumed, of itself, to
110*] form a new government, or *ta pro-
vide for the exigency of the timea, without
eonsulting Congress on the subject; and when
they actnl, it was In pursuance of the recom-
mendation of Congress. It was, therefore, the
achievement of the whole, for the benefit of
t^ whole. The people of the united colonies
made the united colonies free and independent
States, and absolved them from all allegiance
to the British crown. The Declaration of In-
dependence has, accordingly, always been treat-
ad as an aot of paramount and sovereign au-
thority, complete and perfect, per se; and ipso
facto, making an entire dissolution of all po-
litioal connection with, and alliance to Great
Britain. And this not merely aa a practical
faot, bint in a legal and aonatitutional view of
tl«
the matter by eourta of iustlee." lu, IM, an
211.
-'Tlie same body, in I77S, took bolder step^
and executed powers which can. In no other
manner, be Justified or accounted for, than up-
on the supposition that a national union, far
national purposes, already existed, and that
tlta Congress waa invested with sovereign pow-
er over sH the colonies, for the purpose of pre-
serving the eommon rights and liberties of ail.'
"Whatever, then, may be the theories of in-
genious men on the subject, it is historically
true that before the Declaration of Independ-
enoe, these colonies were not in any abaoluta
sense sovereign States; that tho^t event did not
find or make them such; but that at the mo-
ment of their separation, they were under the
dominion of a superior controlling national gov-
ernment, whose powers were vested in and ex-
ercised by the general Congress, with the con-
sent of the people of all the States. lb. 202.
sec. S14.
"From the moment of the Declaration of
Independence (if not for most purposes at an
antecedent period) the united colonies must be
considered as being a nation de facto, having a
general government over it, created and act-
ing by the general consent of the people of all
the colonies. The powers of that government
were not, and oould not he well defined; but
still its exclusive sovereicruty in many eases
was Brmlv established; and it* controlling pow
er over toe States was in most, if not in ail
national measures, universally admitted." lb.
203, sec 215.
It Is unnecessary to follow the learned author
through his history of the confederation, or his
views of the nature of the government which
existed under it; as he has copied into his
work, from a most interesting State paper,
"some of it* important passages, as among tba
ablest commentaries ever olTered upon the
Constitution." Vide 2 Story's Com. M3.
"In our colonial state, although dependent
on another power, we very early considered
ourselves connected by eommon interest with
each other. Leagues were formed for com-
mon defense; and before the Declaration of
Independence, We were known in our aggre-
^te character as the United Colonies of Amer-
ica. That decisive and important step was
taken Jointly. We declared ourselves a na-
tion, by a joint, not by several acta; and wlica
the terms of our confederation were reduced
to form, it was in that of a solemn league of
'several States, by which they agreed [*lll
that they would, collectively, form one na-
tion, tor the purpose oF oondueting some do-
mestic concerns, and all foreign relations. Ir
the instrument forming that Union, is found
an article which declares that every State shall
abide by the determination of Confess, on all
questions which by that confederation shall be
submitted to them." 2 Story's Com. S4S.
"Tbf people of the United States fomcd
the Constitution, acting through the Stat«
legislatures, in making the compact, to nret
and dtscusE its provisions; but the terms used
in its construction show It to be a govemment
in which the people of all the States, collect-
ively, are represented. We are one peepie i*
tba ehoice of President and Vioe-PresidtfnL
Bnldwim,
1 OovnwEBT or rHE Uhitb) Statsh.
Ill
Sen the Stdtea bar* no lAhtt Kgency than to
direct the mode in irhioh the vote* ahall be
^Ten. The ouididmtM hftvlnff the majority of
ail the vote* are choaen. The electors of a
majority at States ma; have, given their votes
[or one candidate, and yet another may be
efaoEcn. The people, then, and not tbe States,
ire represented in the executive branch." E
Story's Com. S5i.
■'The unity of our political character com-
menced in its very existence. Under the royat
goveminpnt, we hail no separate character; our
oppoiition to ita oppreiEJoni began as united
eoloni^B. We were the United States under
the confederation, and the name was perpetu-
ated, and tlie Union rendered more perfect by
tbe federal Constitution. In none of thPHe
stages did we consider ourselves in any other
light than oa forming one nntinn. Trealiei and
allfaDCFB were made in the name of nil. Troops
were raiai-d for the joint defense. How, then,
with all these proufs, that under ail our
changes of pi.sitinn. we hnd. for deei^nnttd pur-
poses, with defined powers, created n.ttionul
governments, — how is it that the most piTlPct
of those aeveral mudcs of union should now be
eonsidered aa a mere league, wliirh may be
diuolved at pleasure!" 2 Story's Com. SM.
It is proper here to add an extract from the
opinion of Chief Justice Jay, in the case re-
ferred to, at tlie end of see. 211, 1 vol. Com.
IBS, part of which is given in aec. 810, p. 204,
iO£; as it will show the coincidence of views
entertained and declared by him in 17B3, and
tlMae of the learned commentator forty yean
afterwards.
"Afterwards, In the hurry of the war, and in
the warmth of mutual confidence, they (the
people) made t, confederation of the States the
mis of a general government. Kxperieneif
disappointed the expectations they hail formed
from it: and the people, in their collective Hnd
naUonal capacity, established the present Con-
stitution- it la remarkable that In estahlishiti^'
it, the people exercised their own rights, and
their own proper lovereiijulji) and, ooiwciuus ,
• Ii. ed.
of the plenitude of It, they deelftred, with be-
coming dignity, we, the people of the United
States, do ordain and establiah this 'Constitu-
tion.' Here we see the people acting ei sover-
eigns of the whole country; and, in tbe lan-
guage of sovereignty, establishing a constitU'
tion, by which it was their will that the
State governmenlfl should be bound, and to
which the State conatitutions should be made
to conform. Every .State constitution is a
compact, made by and between the citi-
zens *of a State, to govern themselves I'lll
in a certain manner; and the Constitution of
the United States ia likewise a compact, made
by the people of the United States, to govern
ihemaelvrs as to general objects in a certain
mnnner. By this great compact, however,
many prerogatives were transferred to the na-
tional government, such as those of making
war and peace, contracting alliance*, eolning
money," etc, eto-
"If, then, it be true that the sorerelgnty of
the nation is in the people of the nation, and
the residuary sovereignty of eaeh State in the
people of enoh State, it may be uacful," ete. 2
Dal I. 270, 271.
'I'he only difference of opinion between theaa
two moat learned jurists is in the Constitution
being a compact; it is, however, only a differ-
ence about a name; they agree In the thing;
tbe power which created, the nature and origin
of the federal government, those of the State*,
and tlie thing created; a constitution, not a
league.
Tliese extracts ore mode more at large than
would be required on an ordinary occasion: in
order to pretent a full view of the ground on
which (he ductrine of the unity of power, in the
one pciipie, of one nation, existing from the
bi'i'iiiilin^ of the Revolution, ia asserted; and
ihut no supreme sovereign power was in the
peiiple of the svvarat Staiea, competent to or-
dain and establiah the Constitution ia main-
tained; so that there can be no miaapprehenaion
or ialcntion.
•SI
.dbyGOOgIC
BaUIWIS'B COKBTITUIIOHAL ViKWaL
Itt"]*TTwM Intended to pubUah the pn-
1 oediog view, with the four opinions
whteh follow, in an Appendix to the eleventh
volume of Mr. Petera'a Keparts, which contKina
the opinions of the court, and of the judges
who dissented. But it was found that by so do-
fns the publication of the Report^) wonld ht
delayed beyond the time at which they would
otherwise have been before the public Unwill-
ing to be the cause of such delay, I have adopt-
ed this mode of submitting my views and opin-
ions to the profession. H. B.
BRISOOE at «1. t. THE COMMONWEALTH BAKK OF SENTUCE7.
Ante, 11 Pet. 257.
IT hM BO happened that I am the only mem-
ber of the court who composed one of the
majority in the case of Craig v. Miaaouri, and
now concurs with the majority in this case, in
affirming the judgment of the Court of Ap-
peals; in this respect my situation is peculisr,
■a well as in another particular. After an ar-
Kment in the former case, two of the judges
d died; of the remaining Qve, three were of
opinion that the paper issued by the State of
Missouri were bills of credit, and two of a con-
trary opinion; on the argument in 1B30, there
were two judges present who had not before
sat In the cause, and on whose opinion the re-
sult depended. If tliey agreed with the minor-
ity, the Judgment was of course confirmed; if
they divided, It was reversed; so that the one
who joined the three made the judgment of the
court: this was my case: agreeing in opinion
with the three who were for reversing, 1 con-
curred in the judgment and general course of
the opinion and reasoning of the court, though
my opinion was formed on grounds somewhat
different. It was my intention to have assigned
mj rsasoni in a separate opinion, but as It was
the flnt term of my sitting in tlie court, the
business was new and pressing, and want of
time prevented it; but at my suggestion a
olaiue was added to the opinion prepared by the
Chief Justice, which would enable me after-
wards to show the reasons of my judgment,
should a similar question occur. In this cose,
too, I fully concur in the judgment rendered,
yet not in the course of reasoning or the au-
thority on which the opinion of the court is
based; so that my position is as peculiar in
this as it was in (^aig v. Missouri; and in one
respect is in marked contrast with that of the
other three judges who sat in that case. The
Sudge who was in the majority then, and now
iseents, was and is of opinion that the paper
emitted in both eases came within the restric-
tion of the Constitution as bills of credit; two
who then dissented and now are in the major-
ity, were, and are of opinion that the papers in
neither case ars bills of credit, so that no impu-
tation of inconsistency can rest upon them.
114*] With me It is 'different; my judgment
has led me to different results in the two cases,
and therefore it cannot be deemed improper for
me to explain the reasons why, though forming
ons of the majority in both cases, I stand in
some measure alone.
A Judge who now dissents, may find reasons
irefore in tlie opinion delivenM la Craig t.
Missouri; those who now concur, may rest an
their dissenting opinions in that case; but tlie
same course of reasoning and deduction wUch
shows the consistency of others, may lead to s
very contrary conclusion as to mine.
Tliese considerations must be my apology for
the course now taken.
In Craig v. Missouri, the subject of contro-
versy were certificates signed and issued by tha
auditor and treasurer pursuant to a law of tlist
Btate, which were on their face receivable at
tlie treasury for taxes and debts due the State,
bearing interest at the rate of two per cent- per
annum. One tenth the amount of said certifi-
cate* were directed to be withdrawn annually
from circulatii.n; they were made a LeRal ten-
der for all salaries uid fees of office, in pay-
ment for salt to the lessee of the public salt-
works at a price to be stipulated by law, and
for all taxes due the State, or to any county or
town therein. They were to be loaned on per-
sonal security by joint and several bonds bear-
ing interest; the proceeds of the salt springs,
the interest accruing on the bonds, all estates
purchased under the law, all debts due or to
become due to the State, were pledged and con-
stituted a fund for their redemption, and tbr
faith of the State was also pledged for tl>e
same purpose.
It seemed to a majority of the court to be
impossible to disguise the character of this
paper, or to change its nature or effect by sub-
stituting the word "certificate" on ita face for
the word "bill;" the change was only in name,
the thing was the same. Connected with the
law under which the paper was issued, it was
a bill, note, or obligation, emitted by the State,
with the avowed purpose of circulating a« mon-
ey for all the purposes referred to in the taw;
the funds and faith of the State were pledged
for its payment with interest from tta date,
and it made a legal tender in payment of
certain debts to individuals, and of taxes to
towns and counties. No member of the eonrt
was more clearly of opinion that these self-
called certificates were bills of credit to all in-
tents and purposes, and that that part of tbs
Constitution which declared that no State
should emit them, would be a dead letter if
they were not held to ba within it, than I waa
On this subject, my opinion went to the full
extent of that which was delivered bj Ux
Chief Justice, and baa been fully cc iHrosM by
subsequent reflection.
There waa between the eonentring jadgta
ftuscoK cr AL. T. Tbe CoMMONn-RALTB Bank or KEnrDOKT.
lU
attd mj'^elf DO otiier difTprence nf opinion, or in
Um reiUoni of our resprcLive Jud};mcntB. flinn
In the dednition of a bill of credit, whi:?li is
thn» given in the opinion (4 Ppt. 432); "To
emit bills of credit conveys to tbe mind tha
Idea of issuing paper inlpnded to circulate
11&*1 throueh tbe community, 'for its ordi
nary purpoaea, aa money, which paper ia re
decmable at a future day. This is the sense
tn which the terms have been always under-
stood. If the prohibition means anything; it
the words are not empty sounds, it must com-
prehend the emission of any paper medium by
t. State government for the purpose of oommon
ciroulation."
To this broad deflnition I eould not assent;
In my opinion, no paper medium could be
deemed • bill of credit emitted by a State uu'
less it contained on its face or the law under
which it was emitted gave a pledge of iti
faith or credit for its redemption; nor then
unless it was made a legal tender in the pay
ment of some debts to individuals. Though the
opinion ii silent aa to the pledge of the faith of
the Blate, being a requisite to constitute a bill
of credit, and negatives the necessity of the
paper being made a legal tender; yet these mat-
ters entered into the character of tbe paper, and
were a part of the case before the court, aa ap-
Crm in the opinion. 4 Pet. 432, 433. The
L sentence in the latter page shows the
ground on wliicb my opinion turned; the paper
was a tender, and the faith of the State waa
pledged. Ttis last clause was added to tbe
opinion at my request. "It also pledges tbe
faith and funds of tbe State for their redemp-
Thus there was a perfect union of opinion
between the Judges who compused tbe majority,
on the whole cose prusentcd for judgment, as
well in the result as the course of reasoning
which led to it; the only variance was .- "
the requisites of a bill of credit. Three y
holding that "any paper medium emiUed
Stat« government for the purpose of cor
circulation," filled the constitutional definition
of • bill of credit, while one judge held that
there were two additional requisites— that the
emission should be on the credit of the State,
and the paper declared a legal tender. But as
tbe certificates or bills, taicen in connection
wftb the law directing their emission, contained
fttl the requisites to constitute bills of credit,
on the most limited construction which could
be given to the Constitution, there could be no
other difference of opinion than in the reasons
for judgment.
Had tbe opinion and reasoning been applied
to the whole case, to paper not only emitted by
ft State for common circulation, but emitted on
ita faith and credit expressly pledged, and
made a tender, the reasons would have been in
perfect accordance with the views of tbe major-
ity and their judgment. But though this was
requested by me, tbe opinion was confined to
only a part of the case on the record, taking no
notice, in the reasoning, of the pledge of the
faith of the State in direct terms, or giving to
ft mnj declared olTect in fixing the character of
tb« paper. If this pledge bad not appeared on
tbe certificate or In tbe law, my opinion would
bave been for affirming the judgment of the
Stata courtt and aa three judoea held that even
with this pledge the certificates were not bills
of credit, it Is evident that the judgment of this
court depended on this part of the law.
■With this explanation, the case of [*llt
Craig V. Missouri, so far from being an author-
ity in favor of the proposition that it is not
necessary to constitute a bill of credit that the
faith of the State should be pledged for its pay-
ment, it must be talien as n^gattving it by th«
opinion of four judges. On tbe other liand, four
Judt'es were of opinion that it was not neces-
sary that the oertifleates should have been
made a legal tender for any purpose, in order
to make them bills of eredft. Thus under-
stood, I adhere to the decision of the court in
that case, as It was judicially before it on tbs
record; and yet retaining the same opinion now
which I then expressed to the judges, I cannot
feel myself precluded from acting on it in this
case, because the opinion of the court, aa de-
livered, did not take tbe same course as mine,
In leading the majority to the conclusion they
formed. To now abandon the deliberate result
of my beat judgment, formed and expressed in
that case, which has been confirmed on the sue-
eesstve arguments in this, would look more like
yielding to a train of reasoning on a part of a
case, than respecting the judgment of the court
on the whole record. It would also place me In
a position of inextricable difficulty, to now sur-
render my judgment to the same reasoning and
illustrations, which failed to '
(, the
e especially when the inter-
judgment of the court in this, and the former
case, in that tbe faith of the State of Missouri
was pledged for the payment of tbe paper
which she emitted, and made a legal tender; in
this, Kentucky has not pledged her faith to re-
deem tbe notes of the bank, nor made them a
legal tender in payment of a debt. I also con-
cur with the opinion of the court In this case,
that these notes cannot be deemed to have been
emittted b^ the State, and have no desire to
add any views of my own on this part of tbe
case, m^ object being to defend my own pecul-
iar position as to the definition of a bill of
credit, according to the true interpretation of
the first sentence of the tenth section Of the
first article of the Constitution.
It is in these words— "No State shall enter
into any treaty of alliance or confederation;
grant letters of marque and reprisal; coin mon-
ey; emit bills of credit; make anything but
gold and silver coin a tender in payment of
debts; pass any bill of attainder, or ex post
facto law, or law impairing the obligation of
contracts, or grant any title of nobility."
In analyzing this sentence, it is apparent
that these restrictions on tbe States relate to
three distinct subjects. 1. To those on which
the Constitution had granted express powers to
tbe federal government; to make treaties, grant
letters of marque and reprisal, coin money. 2.
To those on which the Constitution made no
grant of any power, by either express words,
any necessary implication, or *any rea. [•ill
■onable interpretation; to emit bills of credit,
make anytbing but gold and silver coin a legal
»»»
IIT
BALowufs OoKanrmaRAi Vibwb.
tender tn payment of debt*, or paia auj law
impairiiis the obligation of contract*. 3. To
thone iiibjectB on which the 0th section of tha
first article had imposed the same restriction
OB the United Statci and Congresa aa the tenth
•ection did on tha separate Statei; to paie any
bill of attainder, ex poat facto law, or grant
toy title of nobility.
On the laat cIbeb of easei any comment la
naeleaa; there has never been any difference of
opinion aa to the meaning o[ a bill of attainder
r a title of nobility; and though there have
t we can safely aaaumc that a* to thoae
ftrts of the ninth and tenth sections of the
r«t article, the meaning of the Constitution h
H plain and definite aa Its language.
By referring the terms to a standard of ad-
mitted authority, froio which they have been
adopted in the Constitution, they become as in-
telligible aa if their aettled definition had been
added by the convention which framed the in-
■tniment. What the standard of definition
■hall be depends on the term used; if it is one
of oommon use in the ordinary transactions of
•odety and >o applied, it shall be taken in iti
oonunon ordinary acceptation by tboae wbo uM
the term; if it relates to any particular art,
•dence, or occupation, Ita meaning is its com-
mon understood senae, according to the usage
and ita acceptatian among men so employed.
If It ia a term appropriate to the common, or
statute law, or the law of nations, it must be
taken a* intended to be applied according to
{la eatabUshed definition «■ • known legal
Hence the term bill of attainder, means the
eonTiction of a person of » crime by legislative
power; an ex post facto law ts one which
make* an act criminal which when oommitted
was no offense; a title of nobility ia a term
which defines itself. Thus the terms used aa to
the third class of cases, have been considered as
defined by a reference to their understanding
in a legal aense.
Id passing to the first class of cases, it will
be found that the terms 'treaty," "alliance,"
"confederation," and "letters of marque and
reprisal," when referred to the law of nations,
kre perfectly defined; so is the term "coin
money," when referred to the words in their
common acceptation, or tbeir legal sense.
There is no ambiguity in the words, taken sep-
arately or in connection; aa a term or phrase
they require no other interpretation than is to
be found In tha known and universally received
Standard by which they are defined, nor can
they be taken in any other sense, or by any
other reference, unlesa there appears from the
context or other parts of the same instrument,
an obvious intention to use and apply them dif-
ferently from their ordinary or legal accepta-
tion. These are tbe eatablished unvarying rules
of interpretation which aasign a meaning to
language that requirea explanation not con-
tained in the words themselvea; the want of
eertainty Is cured by a reference to that which
118*j is certain, 'and when any word, term,
or phrase, has acquired a definite meaning, ita
uae without explanatory worda, is always
deemed to be so mtended. With the universal
■oosent of avers atatesman and Jurist, tU*
terms used in these two claasea of caMa !■ tt*
tenth section, with the exception of an ex pact
facto law, have bi'en received and taken ac-
cording to their known definition, by monidpal
or national law, and common undeiatandinai
and there is now the same common asint w
the meaning of an ex post facto law, as Mt-
tled by the repeated adjudications of this court.
The same rulea have also been applied to all
other parts of the Constitution, in which tema
of known import are used, as the writ ol
habeas corpus, trial by jury, etc. Ko man
ever doubted that they were nsed according
to their definition by the common law, or
that the worda "taxea," "commeroe,' "money,"
"coin," were uaed and must be taken in Ibdr
ordinary meaning and acceptation. It is la-
deed an universal rule, applied to all laws,
supreme or subordinste, to all instnunenta of
writing, all grants or reaervati<ms of power,
property, franchise or immunity, and all craa-
tracta, that the words and language used shall
be interpreted by such reference, accordingly
as tbe subject matter is made certain by tlwir
legal or commonly received definition or acoep-
tation. There is another rule of interpretatioa
equally universal, that the whole instrumcat
shall be examined, to ascertain the meaning
of any particular part or sentence, so «■ to
avoid any discrepancy, and the same standard
be applied to all ita terms, and every word
which ean bear upon Ita intention, referring
each to the appropriate subject to which it re-
lates, tha standard is furnished for the tntcT'
pretation. Thus the word "bill" has a mcsB*
ing depending on tbe subject matter to whick
it is applied; a bill of credit refers to the pay-
ment of money; a bill of attainder refers to tha
conviction of an offense by a Legislature; so o(
the word "law," an ex post facto law ief«rs t*
one which infiicta a pun ist: went; a law impair-
ing the obligation of a contract refera to mon-
ey or propertf due or owned in virtue of a
contract.
Taking it then as an undoubted propositio*
that tbe same rules of interpietstion must b*
applied to all parts of the tenth section, taken
in connection with the whole Constitution, as
one Instrument of writing, I sliall endeavor to
ascertain what Is the meaning of the ternu used
in reference to the second clasa of cases.
The first Urm is "No SUte ahall emit bills
of credit."
That by "State' U meant a State of thto
Union there can be no doubt. Next cornea tb*
word "emit," which, referring to billa of cred-
it, means an emisaicn of paper; a putting oO,
putting out, putting furtli, ur issuing billa bj a
State, for the payment of money, at some li^c,
by sume ptrson, and on credit.
The time of payment, the fund oat of which
it is payable, the faith or credit reposed in, «v
pledged by those who emit it, dependa on tha
law under which the State made, or authorised
the emission. 'Then comes the term [*1 IV
"bills of credit," without any reference or oa-
planatory worda; but as it necessarily rolntaa
to the payment of money, tbe word "biU" ^■■k
be taken »» a paper containing some tfHe^m
that a certain sum ia due to the pcrsoo t*
whom it was emitted or Issued, or by wbo^ It
is licld. It is a word of legal import, aa wsB
defined as anj> in tha Gngliah language ■«-
B»M»B cr ML. V. The Ci>itin>NWKht.Tn Bahk or KBitrcoKr.
Ill
mnlitu- to tht tnbjeet mttter to which ft li
■ppticd. "A bill ii B common engifrenent for
■noTHij ^Ten bj one mtn to another; nhen
with a penalty it il a p«nAl bill, wh«n without
one It U a •inKte btt)" (Toml. L. D. 230) ; "and
tt is al) one with an obligation, iavin^ that it
[■ mmnionl}' eallMl a bill when in Enfjliah, and
an oWigstion when fn Latin. But now by a
bill, we ordinarily undentand a linglc bond
without a condition; by an obiigation, a bond
with a penalty and condition" (Cow. L. 1. Tit.
Bin. 9 D. C. D. I»l, Obi. A), or. aeeordiny to
the definition of C, B. Comyni, "• alngle bill it
when a man ii bound to another bj bill or note,
without a penalty." lb. IM. C.
A bill of fivdit ia also a weir \nown term of
the law; In fta mercantile aense it mean* a let-
ter addressed by one merchant to anntber, to
give credit to the bearer tor money or goods,
auch letter bring In the nature of a bill of
change, ii called a bill and lo treated. Deai
L. M. 483i S. P. 5 D C. D. 131 ; Merchant, F.
S. When the word "bill" refers to paper emit-
ted by a bank, there will be found a moat
mnrkpd adhprence to the distinction between an
obligallon and a bill, as appears in the clanae
ef the original charter of the Bank of England,
read by pTaintilTs' counsel, "That all and every
bill or bills obligatory and of credit under the
seal of the said corporation, made or given to
any person or persons, shall and may by in'
dorsvment thereon, etc., be aasigned, etc. 5
W. ft M. eh. ZO. SCO. 29; 3 RuS. £63. So in the
twenty-sixth section of the same act, "The
corpnration shall not borrow or give security
by bill, bond, covenant or agreement, under
their common seat," etc. (lb) ; the word "bill"
denotes a sealed paper, either a bill obligatory
which It an obligation, or a bill of credit which
Is a single bill; or if they are taken as synony-
mous, the words of the act are expressly con-
fined to sealed bills, which require indorse-
Riciit to make them assignable. Taking the
term "bills obligatory" and of "credit," under
tbe common acal of the corporation, to be what
they are declared in the charter, they are In
their legal sense, and in common acceptation,
the bills of the bank or bank bills, Issued under
their seal. This leads to another dittioetion
between the dilTerent klnda of paper issued by
the bank, worthy of all oinervation in the pres-
ent case; the notes issued by the bank were not
under its common seal; they were payable to
bearer on demand, and passed from hand to
hand by delivei? merely, without indorsetaeut.
They can, therefore, in no just tense be deemed
bills of credit under seal, requiring a special act
of Fartlameot to make them assignable; and
■o well was this known and fully understood,
that we find throughout the extended
1X0'] 'charter to the bank in 8 and 9 W.
III., b*nk bills and bank nates are referred tola
the aame marked contradistinction which exists
between a sealed bill assignable only by indorse-
ment, and an unsealed note payable to bearer
«Bd transferable by dellrery only.
In providing for enlarging the capital of the
bank, tbe subBcribers were authorised to pay
one fifth of their aubscrjption "In bank bills or
bank notes, which have so much money bona
IMe reating due thereupon," etc. 3 Buff. 667,
■ee. 23. Tbe same words, 'In bank bitU or
bank notes^" an three times repeated ia tbe
twenty'ltftb aection. and are esrrM tbroogh
tbe whole ai^ In tbe thirty-sixth section, the
diseriminatinn is too strongly marked to admit
of anv potiible dnoht; in this section It ia de-
clared, ''That the forging or counterfeiting of
any senled bank bill, made or given out In the
name of ths aaid governor and company forth*
paj-meni of any atim of money; or of any bank
note, of any tort wliatever, siirned for tbe aald
governor and company of tbe Bank of England.
etc., shall be felony." Ih. eSO. The act of 3
A. 4 Ann (cb. 9) is also moat explicit in ita pro-
visions, which embrace all notes in writing,
signed by any person, "or the servant or tgoA
ofany corporation," payable to order or bearer,
and puts tliem on the footing of inland bills
of exchange, according to the custom of mer-
chants, but neither in terms or by oonstniction,
can be applied to bills under seal (4 Buff. ISO),
or has ever been attempted to be so applied or
construed. We must, tuerefore, take the term
"bills of credit," when applied to the paper
issued by a bank, to mean an instrument under
its corporate seal, payable to aome person, and
assignable by indorsement, and not a note pay-
able to order or bearer, and transferable as an
inland bill of exebsnge, according to tbe uni-
vrrsitl acceptation of the term in England.
There is another class of bills of credit in
England, known by the name of Exchequer
hills, which are issued by the officers of the Bx-
chequer when a temporary loan is necesaary to
meet the exigencies of Kovamment. Tbey
u-ere first termed "tellies of loan and orders of
repayment," charged on tbe credit of the Ex-
chequer in general, and mode assignable from
one person to another. S W. A M. ch. 20,
seo. 3S; 3 Bult. 666. By a tuheequent aet,
the officers of tbe treasury were authorized to
eauae bills to be made forth at the receipt of the
Exchequer, in such manner and form aa they
shall appoint, etc, and to issue the same to tM
usee of the war, they were made receivable lor
all taxes and monpy due at the Bicbequer,
bore an interest, a premium was given for giv-
ing them cireulatioii, the nation was security
tor their payment (vide 8 and 0 W. UI. cb- 20,
sec 63, 64. SS, 66; 3 RulT. 667, 668; 7 Ana,
ch. 7, sec eZ; 4 RuET. 345; S Ann, ch. 7, paa-
aim; 4 Ruff. 131); and they were called biUa
of credit (3 Rufl. 6TB). Such is t)w nature o(
the three clatsea of billa of credit in EnsUind,
whether they are letters or bills of credit of
merchants in tbe nature of a bill of exdangai
the bills obligatory or of credit of a bank, or
Exchequer bills; they all partake of the lame
character, 'and are the bills of credit of [*121
tha person, corporation, or government, which
emits, makes forth, iasaee, or puts tbem into
drculktion. The name given to the paper, its
form or the mode of giving it currency or di-
culation is immaterial; its substance consiata
in its being an engagemeot to pay money at a
future day, and that ita payment rests on tha
security, faith, credit or responsibility, of thoaa
who put it into circulation, pledged on tbe faes
of the Ullt of individuals and corporations, and
tbe law of the nation which emits or issues
them. Bills of credit were viewed in the Unit-
ed States in the same way, before the adaption
of the Constitution and immediately after-
wards. That the definition of a bill by the
law and common aceeptatim ia tk*
•»1
Ill
SAunnir^ Ooksirotiohal Vows.
mm* hum m In BigUnd, and has aTer been m
MMptad, b • propositloD whtch needs only to
be aa3ert«d; the BBme Teasonlng kIio attkchu
to a letter of credit la a mercantile eente, anil
the ume dlitinetion irhich haa been ahoirn to
■xlat there between bank biils ind bank notes,
was In the most explielt manner recogiiiEed
daring the revolution.
Un the Slat Deeember, n9\ Congress
iwssed an ordlnEinee to incorporate the sub-
Mriben to the Bank of Nortn America, and
raoommeuded to the legislatures of the several
States, to paM luch laws aa were iMceasary to
gire the ordinance full operation, agreeably to
the reBctutioni of Congress on tbe 26th Uaf
pKceding. T JoorBala Cong. 197, 199.
In the proeeedings of that day, we bava the
San of toe bank which was then approv
the twelfth article It Is provided, ''That the
bank notes payable on demand," shall by law
be made leeeiTable in every State for duties
and taxes, and by the Treasury of the United
States aa specie; Congress also resolved that
they should M received in payment of all debts
doe the United States, and recommended to
the States to make the counterfeiting bank
notes m capital felony. 7 Journals Cong. 87,
Mi 26 ]ifo.7, ]T81.
Pursuant t« this reeomraendation, Pennsyl-
vania passed an act to prevent and punish the
counterfeiting the bank bills and bank notes of
the bank, made or to be made or given out.
Hall & Sellers L. vol. 8, p. 11; 18 March,
ITS2. In 17B3 Delaware passed an act to pun-
ish tbe counterfeiting tbe bank bills and bank
notes of the bank. 2 I^wa D. T73. But the
law of Massachusetts, pasted the 8th March,
1788, contains the most unequivocal evidence
that the distinction between bank bills and
bank notes was well known and understood,
for it oopfea tbe thirty-sixth section of the acts
of 8 and g W. ni., before referred to, "That
if any person shall counterfeit any sealed bank
bin or obligation mode or given out tor or in
the name of the said P. D. A Co. for liie pay-
ment of any sum of money; or any bank note
of any sort whatsoever, signed for or in the
name of the said P. D. & Co." Thomas's L.
Haaa. 187. In oil these acts the words "note,"
"bill" or "obligation," are put in the same
contradistinction from each other which the
common law assigns to them, and so are the
acts of Congress for chartering tbe Bank of the
13S*) United 'States, which were patterned
from the acta of Parliament chartering the
Bank of England.
By the ninth fundamental article of the char-
ter of 1791, it is provided that "The total
amount of the debts which the said corporation
shall at any time owe, whether by bond, bill,
note, or other contract, shall not exceed, etc"
1 Story L. 172; S. P. 8th article of charter
of 1816; 3 Story, 1E54. In the 13th article,
tha Beth section of the G W. & M. (ch. 20.)
chartering the Bank of England, is copied, de-
claring that 'The bills obligatory and of credit
under tbe seal of tbe said corpora tioii," etc.,
shall be assignable by Indorsement, eto. And
bills or notes issued by the corporation, signed
by tbe president and countersigned by the
cashier, promising the payment of money, to
any person or his order, or to bearer, though
not under the seal of the oorporation, shall be
tSl
as binding on them as on a private pervo*. aat
be n^otiable by indorsement If payable to V
der, or by delivery only if payable to beat«r (t
Story, 173, 174, S. P. 12th article of oh»rt«
of 1816; 3 Story, 1554, 1565), thereby adoptinf
Ihe provisions of the 3d A 4th Ann (eh. B], be-
fore referred to as to notes.
In tbe twelfth article of the charter of 1811,
there is this proviso: "That said corponttira
shall not make any bill obligatory, or of cndit,
or other obligation under Its seal, for the pay-
ment of a leas sum than Ave thousand doIUrs."
In the seventeenth section wa find tbe paper
iasned by tbe bank placed In contradiatinctim
no less than Ave times, by the denominatioo ol
bills, notes, or obligations, and the same dis-
tinction is mode throughout tbe acts of 1791
and 1816. It is also carried into the acta of
1798 (omitting the word "obligation") b; which
the counterfeiting of any bill, or note, issued
by order of the president, directors, and oooh
pany, of tbe bank, is made a felony |1 Story,
G18; the Act of 1807; 2 Story, 1D48; Rnd tte
eighteenth and nineteenth sections of the Act
of 1816; 3 Story, 1667, 1558], in each of whidi
the words "bill" and "note" are used to refer
to the two kinds of paper, the word bill being
used in its comprehensive sense aa a knoim
legal term, embracing bills, bonds, oblicatioM
of all kind -' • ■•
according t<
idering the third species of billa of
credit which are issued by the govemment, I
will flrst refer to their deSnition by Parlia-
ment, as the best evidence of the meaning and
acoeptation of the term' in England, and aa It
as adopted in the United States.
The authority for issuing talliea, orders, «r
bills, from the Exchequer, and the manner of
doing it, are pointed out in the acts of 5 W. A
U. (ch. 20), 8 A g W. m. (ch. 20), before re-
ferred to, and 8 A S W. ni. (eh. 28; 3 Bolt.
677, 670); also in Gilbert Hist. Exch. (137).
When money ia paid into the Exchequer for
debts due, or on a loan to the govemment, the
teller who receives it gives a bill for the amount,
which is an Exchequer bill, or a bill of credit;
substantial definition of which will be fouad
I the eleventh eection of the 8 A 0 W.
II. ch. 28; 3 Ruff. 679. "Provided [*ias
also that this act, or anything herein contained,
sh«!l not extend to alter or change any melliod
payments by billa of credit in the
Exchequer, allowed, or to be allowed by Par-
liament," referring evidently to two species of
such bills which are issued from the Elxcheqver,
according to the prescribed mode of accounting
for all moneys paid. A bill of credit given to
a debtor who pays his debt, is merely tbe e*i-
' ice of its payment; but a bill of credit gim
one who lends money on the credit of the
Exchequer, allowed to be pledged by ad et
Parliament, Is a bill made forth on the oedit
of the government, who is a debtor to the
holder for the amount with interest thereoa ss
directed by the law.
It Is evident that the Constitution dU aot to
tend to prevent the emission by a State ti a
bill of credit of the first description, which in ef-
fect would be no more than a reoeipt fn- a Mt
due the State; it clearly refers only to thst
class of bills of credit whidi were emitted br a
tt::ldwl»
BuM»B B AL T. The Ooiutoinnut.TH Bajtk «r Knrroan.
8UU for tlM purpoMi deelmrad in the la* au-
thoring tbem to ba amitted and put Into eir-
eulation. Taken in tbia sense, the term "bill
of avdit" will be found to have been u well
dafined In the United States before the adup-
UoB of the Constitution a» It was in England,
or aa the term "bill of credit," in referenoe to
bank bilU, had been there and here from the
time when the flrat charter of a bank waa
B7 the ninth aitlele of the eonfederatlon,
Congran were authorited "to borrow monev
or emit bilU on the credit of the United SUteaj''
bnt unless nine States consented, coold not
"coin money," "nor emit hills," nor "borrow
money on the credit of the United States."
By Mtiele twelve, all bills of credit emitted,
moneys borrowed, and debta contracted, by or
nnder the autliority of Conrresa, etc., shall be
deemed a charge against tne United States;
for payment and an tiaf action whereof, the said
United States, and the public faith, are herebj'
•olemnly pledged. I Laws U. S. IB, IB.
If there is certainty in language it would
•earn to be in this, as a definition of a "^ill of
credit," and was evidently copied in the tenth
■cotion of the fint article of the Gonstitutic
the prohibition against any less than nine
number of States acting on certain subjects la
in the precise words, "nor coin money," "nor
emit bills;" if it is asked what billa, the answer
is. "bills on the credit of the United States,
billa of credit emitted by the authority of Con-
gress on a pledge of the public faith," By
substituting State for *njnited States in Con-
fess aasembled," the meaning of the words ia
identical, and cannot be mistaken when they
■re transferred into the constitutional orohibi-
tion, "No State shall coin money, emit bills of
credit," means bills on the credit of the State.
Plain words must be perrerted by something
inconsistent with reason, if they mean anything
else; if they do not refer to bills emitted on
the credit of the State, we must be Informed
on whose credit. It must be Uiat of an indi-
vidual, a oorporatiou, or of the United States;
194') 'those who assert such a propoaition
ran have no respect for the Constitution or its
frsmers. Yet they can in no other way evade
the obvious meaning of plain words; tne pro-
hibition was intended, and does prohibit a
State from emitting bills on its own credit, and
not on any other credit.
The prohibition is confined to a State, to an
emission by a State of bills of credit, emitted
on the faith of a State, which can be pledged
only by the law of a State, and no more ex-
quisite torture can be Inllicted on plain words,
tnau in the endeavor to make them mean more,
mean less, or mean anything else than the cred-
it of a State. When we look to the names
»lB»ed to the articles of confederation and the
Constitution; when wa consider that the form-
ar, after being long discusaed in Congress, and
ftpproved by that body, was submitted to the
l^ats tcKislatures, who deliberated nearly four
fean before Its adoption, and that every word,
phrase, and sentence, was fuUy discussed and
most anxiously eonsfdered, it cannot be coneid-
•rad as a bold or rash assertion that the frau-
raa of both instruments comprehended the lan-
guage thay used, said what they meant, meant
what thej aaid, and stanmed upon their work
• Xfc ad.
an Impress of Intention, which they at least de-
sired should be Intelligible to all capacities.
If the definition of a bill of eredlt, aa given
In both instruments, is not autboritativa, I know
of none higher to whidi to appeal as a more
certain standard of political or Judicial
truth. Is following such leaders In a path
which they have plamly marked, I feel perfect-
ly consdona of avoiding that diaresMM^ for the
solemn muniments of title on which the Union
rests, which would be a cause of severe self-
reproach )f in this tribunal I should rest mj
i'udgment on any contradictory authority. As,
lowever, it cannot derogate from the respeoi
due to the frsmers of those instrumenta, or the
instruments themselves, to refer to authority
subordinate only to that of State legislatures
who made the confederation, and the people of
the aeveral States who ordained the Constitu-
tion, in affirmance of the definition of billa of
credit, as given by all, I shall refer to the reso-
lutions of the old Congress, and the acta of Uw
new immediately after the adoption of the Con-
stitution.
By the third section of the Act of July, 1790,
making provision for tha debt of the United
States, among other evidences of debt which
were to be received as subscription to the pro-
cosed loan were the following: "Those issued
by the commissi onars of loans In the several
States, including cerUflcates given pursuant to
the Act of Congress of the Sd January, I77B,
for bills of credit of the several emissions of
20tb May, 1777, and llth April, 1778. And In
the bills of oredit issued by the authority of
the United States, at the rate of one hundred
dollars in the said bills for one in speeie." 1
Story, 110, 111.
The general term bills of credit, as uaed in
tha Act of 1790, are 'defined in the res- [*ia5
olntlona of Congress on the days napeeUvalj
referred to.
20th May, 1T7T. "Kesolved, that the sum of
6,000,000 of dollars in bills on the credit of the
United SUtss, be forthwith emitted, under the
direction of the board of treasury." 3 Joum.
IIH.
nth April, 1778. "Resolved, that 6,000,000
of dollars be emitted in billa of credit, on the
faith of the United SUtea."
"That the thirteen United SUtea be pledged
for the redemption of the bills of credit now
ordered to be emitted." i Joum. 14B.
2d January, 1779. In the preamble and reso-
lutions of this day, billa of credit are thna ra-
ferred to. The United States have "been un-
der the neeeasity of emitting bills of credit, for
the redemption of which the Isith of the Unit-
ed States has been pledged." "That any of tlie
bills emitted b^ order of Congress, etc." "That
the bills received on the said quotas," eto.
"That the following bills be taken out of cir-
culation; namely, the whole emissions of SOth
May, 1777, and llth April, 1778." 0 JowB.
- S.
When, therefore, «« find that in the cooled-
eratiiHi, the acts and resolutions of Congress,
these various terras an used as aynonymotts,
fferring to the same species M paper, as
well known and defined a« the term coin, mon-
r any other term, oould be, and the aame
term, bills of credit, used in the Conatitution,
it is not a little strange that those who framed
MS
Bauiwik'b CoiiaTnaTioirAi, Views.
.. _ Dt, •hould ba luppoied to lutv*
I It in « different tnup, without idding
e wordi denoting auch intention. That the
tern being adopted witliout explKnftti<m, wm
intended to be taken with the ume meaning
vAieh hul been M long and uniTereallf ac-
cepted, would, on way otber than » conatitu-
tionaJ queation, be deemed eonelusire eridenoe
of their intention, euinot be doubted. If the
tern could admit of two int«rpret«tiana, the
membcre of the eonvention would adopt that
which comported with the meaning given to
the term b; themselves, while members of Con-
gresa, before, as well aa after the adaption of
the Conatitution, rather than an; other atand-
ard of Interpretation to be found eUawbere.
These reaaons are strengthened by ■ reference
to other parts of the Constitution, the terms of
wlilch are copied from the articles of confeder-
ation, as to coin money, regutate the value
thereof, borrow money on the credit of the
Uaited States, fix the standard of weights and
■easares, and numerous others, apparent on
inspection.
As the Constitutton was intended ta be a
pnme fundamental law and bond of union for
\gtt to come, it waa of the last importance '-
nst those terms in the ^nt, or prohibition
power, which had acquired a precisely deOoed
meaning, either in common acceptation, or as
terms known to be common, tlie statute, or the
law of nations, and infused, by universal con-
sent, into the most s<riemn acts of Congress,
and the alliance of tlie confederation, which
expressed the sense in wliich the whole coun-
try understood words, terms, and language.
The frameis of the Constitution did not speak
lis*] in terms 'known only in local history,
laws or usages, or infuse iato the instrument
local definitions, the expressions of historians,
or the phraseology peculiar to the habits, insti-
tutions, or legislation of the several States,
Speaking in language intended to be "uniform
throughout the United States," the terms used
were such as had been long defined, well un-
derstood in polity, legislation, and jurispru-
dence, and capable of tieing referred to some
snthoritative standard meaiung; otherwise, the
Constitution would lie opso to audi a conatruc-
tioD of its terms as mi^t be found in any his-
tory of ■ colony, a State, or their laws, howev-
er contradictory the mass might be in the ag-
gregate. If we overlook the language of acts
end instruments which express the sense in
which it is understood by all the States, and
seek for the true exposition of the Constitution
in those which apeak only for one State, we
have the higheat aaauronee in the course and
range of the argument in thia case that certain-
ty cannot be found in the almost infinite varie-
ty of lawa which had )>een passed by the States
In relation to the emiaaion of paper money. Nor
is there more certainty in referrine to the opin-
ions of statesmen and jurists, in debates in
conventions, or legislative bodies, to political
writers, or commentators on the Constitutiun,
among all of whom there Is a most irreconcila-
ble contradiction and discrepancy of views, on
every deliatable word and clause ia the Con-
stitution, the leault of which has been strongly
exemplified in the argument of the cases at tbis
term, depending on its true interpretation-
Whether the remarli made in the ScuaU ol the
United States, by a profound and emtiwsl Ja-
rlat, in a debate on a most solemn eonstituthM-
al question, ia particularly applicable to the
mass of what has been offered to the eomt as
authority in tliis case, or not, yet it* general
practical truth must be admitted.
"If we were to receive the Constitution as a
text, and then to lay down in its margin the
contradictory commentaries which have been
made, and which may be made, the whole page
would be a polyglot indeed. It would speak
in aa many tongues as the builders of Babel,
a3d in dialects sis much eonfused, and mutually
as unintelligible."
Fully convinced that the Constitution ia beat
expounded by itself, with a reference only to
those sources from which its words and terns
have been adopted, I have always found cer-
tainty, and felt safety in adhering to it as the
text of standard authority to guide my reason-
ing to a correct judgment. In SKpounding it
by opinion, or on the authority of names, them
is, in my opinion, great danger of error; for,
when it Is found, that from the time of Its
propoeition to the people, to the present, the
wisest, and best men In the nation have been,
nnd yet are, placed foot to foot on all donbtfai,
and many plain propositions in relation to Us
oonstruction. It U as diOlcult as it would be
invidious, to select as a consulting oracle, any
man, or class of statesmen or jurists, in prefer-
On the question Involved in this case, of what
aie bills of credit, my judgment is condn-
sirely formed on the authority herein twfemd
*to; if it is not conclusive, I have nei- [*IZT
titer found, or have been directed to that wUch
Is paramount, or, in my judgment, at all eoos-
dlnate, or to be compared with it. Beating an
this authority, it was my deliberate opinioa
that the certificates issued by a law of Misaouri,
Constitution. On the same autliority, end as
the result of subsequent researches, it is now
my most settled conviction that the notes of
the Commonwealth Bank of Kentucky are not
bills of credit emitted by the StaU of Kentucky,
inasmuch as the State has pledged neither its
faith or credit for their payment. And Uw
notes not being payable at a future day, or is-
sued on any credit aa to time, either on th^r
face, or by the law under which they were b-
Bued, but directed to be paid on demand, in
gold or silver, they were not emitted to obtaia
a, loan to the State, or to meet ICa expenditures,
and cannot be deemed ita bills of crediL On a
careful consideration of the miechiefa against
of which the Constitution intei^
posed this prohibition, of its language, the bear-
ing of the three phrases on each ottier, their e*-
from, I cannot abandon my first i
that one requisite of a bill of credit is) that It
be made a tender in payment of debts.
The crying evils which arose from the Isaat
' paper money by the States cannot be ao well
described aa Uiey are in the language of the
Constitution. The emission of bills of credit
by the States, making them a tender tn ptf-
ment of debts, impaired and violated the oho-
BuMui EI At, r. The Comhokwealtb Bajik of Kehtdokt.
m
by thne diitinct probibitiona; no State RhKlI
emit bllli of credit, make an;thiDg a tender but
gold and (ilver, or pass any law impairing the
obligation of contracts. Thus the remedy
era the whole mischief, and goes beyond
applied literally to its full extent; the i
emission of bills of credit wu no evil; if no
law coerced their circulation or reception by
dividuali, they are as harmlesE as eertiflcatea of
stock, emitted on a voluntary loan to tlie State,
which are admitted not to be the prohibited
bills of credit. So long m they were not made
a tender, they could produce no evili not com-
mon to all paper, whether of a State, a corpo-
ration, or individual, which by common con-
•ent, pM«es from baud to hand in the ordinary
tt^nsactionfl of life. To prevent the drcuta-
tion of such a medium, it was not necessary to
call into action the high power of the Constitu-
tion; the evil would cure itself; when the pa-
per ceased to pass by consent, it would pay no
debt, nor lead to the violation of any contract.
Tbe prohibition could not have been intended
to prevent tbe people froa taking as money,
what would anawer all the purposes of money
In the interchanges of society, or to deprii"
tkem of the exercise of their free will; on t1
eoDtrary, it was made to prevent tbe coercii
of their free will by a tender law, and leave
them free to enforce the obligation of their
IBS'] 'contracts for the payment of money,
and tbe enjoyment of their property.
In tbe construction of al! laws, we look to
the old law, the mischief and the remedy, and
■u expound it as to suppress the mischief and
advance the remedy; no just rule of interpre-
tation requires a court to go farther, by apply-
ing tbe remedy to a case not within the mis-
chief, unless the words of tbe law are too im-
perative to admit of construction. I know no
claas of cases to which the rule is more appro-
Eriate than those embraced within those prohi-
Itions of the Constitution on the exercise of
power* reserved by the States, over subjects on
which Congress have no delegated power; there
can be no collision between the laws of a State
and the laws of the Uniun, as there would be
where a State would legislate on those subjects
that had been confided to Congress or any de-
partment of tbe federal government. Taking
the first cUaa of cases in the tenth section, re-
lating to treaties, letters of marque and repris-
al, and coining money, which are subjects over
which the Constitution grants express powers
as an example, it is evident that to make tbe
prohibition elTectual to the object in granting
the powers, it must be total, so as to exclude
the exercise of any power by a State over the
Bubject matter. From the nature of these sub-
jeeta, there can be no concurrent power in the
two governments; benoe we find that the two
first were, even by the article 0 of confedera-
tion, axpressly prohibited to the States, with-
ont the conMDt of the United Btatea. The
■ame reasons apply to the third, because the ex-
prea* power in Congress to coin money, regu-
lata the value thereof, and of foreign coin,
Mouplad with tbe prohibition to a State to coin
tDoner, is a decisive expresstou of the intention
(hat It shall not exercise the power, as in the
rain of a treaty, or a letter of marque or repris-
nl. Tbe evila to be guarded against i-ad notex-
liitad under tba eouMeratioQ) the States sepa-
• Ij. ed.
rately bad not made treaties, granted letters of
marque or reprisal, or coined money, in viola-
tion of those articles; the evils were wholly
prospective, but were to be apprehended if any
doubt whatever could be raised on the terms of
grant of those powera. Eence the probibition.
Touching the third claas of cases, bills of at-
tainder, ex po«t facto laws, and titles of nobili-
ty, thej were not tubjeota of any delegated
poweia to Congress; but as they were opposed
to the whole spirit of the people and the Con-
stitution, it annulled all power. State and fed-
eral, to do theae things; and tbe prohibition is,
in its nature and object, absolute and illimitable.
But tbe second class of prohibited cases, emit-
ting bills of credit, tender laws, and those im-
pairing the obligation of contracts, are widely
different; the evils had existed, did exist, and
miut recur, if not prevented.
Congreai could not legislate on theae sub-
jects, much less control the States, on whom
the powers of Parliament, in all their transcend-
ency, as well as the prerogative of the crown,
devolved by tbe revolution, 'fl Wh. (*I2*
051; a Wb. EM, Kacii State had the power
of emitting bills of credit, of passing tender
laws (4 Fet. 43B), end exercised both, by an-
nulling oontraets and grants, tbe right to do
which could not be contested by any authority.
4 Wh. 043, 051. These were the acU which
called aloud for the remedy given by tbe pro-
hibitions, to prevent their recurrence, whiek
would have been certain if it had not been made.
This court has declared the intention of the
Constitution on the subject of contracts. "Jt
was uitended to correct the mischiefs of State
laws, which had weakened the confidence be-
tween man and man, and embarrassed all trans-
actions between individuals, by dispensing with
a faithful performance of engugements; to
guard against a power which had been eiten-
sivety abused, and to restrain the Legislature
in future from violating the rights of property.
It protected contracts respecting property, un-
der which some person could claim a right to
something beneficial to himself; and since tbe
clause mujt, in construction, receive some lim-
itation, it ought to be confined to the miscliiel'a
it was intended to remedy. Not to authorize a
vexatious interference with the internal con-
cerns or civil institutions of a Btste; to embar-
rass its legislation in tbe regulation of interual
government, or to render inimatable those in-
stitutions for theae purposes, which ought to
vary with varying circumstances. The term
contract must be understood in a more limited
sense, so as not to embrace other contracts than
those which respect property, or tome object of
value, and confer rights which may be asserted
in a court of justice," 4 Wh. 428, 429; Dart-
mouth College case. "Tbe principle was the in-
violability of contracts. The plain declaration
that no Stale Ehall pass any law impairing the
obli^tion of contracts, includes all laws whid)
infrmge the principle the convention intended to
hold aacred, and no further. It does not ex-
tend to the remedy to enforce the obligation of
a contract; the distinction between them exist*
in the nature of things, so that without Impair
ing the obligation, the remedy may be modified
01 the State may direct." 4 Wh. 200; Stur-
gea r. Crownin shield. It is alio a principle de-
clared by this court that the proluhition doe*
BALDWIIt'a CONBTtTimoiTAt, TOEW*.
not extend to the pastftge of ■ 6t&t« Iaw, whidi
does not aflect ocmtTacti existing when the 1>>t
Wka enacted, and which operatei onl'- ~ "--
obligation of posterior contracta {12 '
Ogden *. Saundera); and no eipositlon of the
Cotkatitution i* better settled, or commands
mora luuTeraal assent, than that the prohlbj-
tioD does not extend to the passage of retrospec-
tive, unjust, oppressive laws, or those wfiioh
devest rights, antecedently vested, if they do
not directl; impair the obligation of a eontract
(2 F«t. 411, 413: 3 Pet. 2S0i B Pet. 110), and
that "The interest, wisdom, and justice of the
reprosentative body, and ita relations with its
eonstituenta, furnish the only security where
thora is no express contract, against unjust and
excessive taxation, as well aa against unwise
IsffialBtion generally." 4 Pet. SOS.
Let these principle* of conatitutionsl law be
IBO'J applied to the eoUBtniction *of the
clause against emitting bills of credit, as they
have been applied to the elausa concerning the
obligation of oontracts, the conclusion seems to
me inevitable. That the same construction
which imposes a limitation to the corrective
remedy f^ainst the future violation of the
aanctity of contracts, which it was the great
object of the prohibition to protect, should be
extended with at least aa much liherality, to
limit the operation of that clause of the same
article, which prohibits an evil which by ■"*
BouibUity could impair the obligation of a c
tract, without ■ tender law. The mischiefs of
a mere emission of bills of credit, are trivial in
their eonsequeitceB, compared with the effect of
taoder lawa; their combined effect is to violati
a contract; surely, then, tbe restriction on s
State ought not to be oonatrued more rigidly
against an act, which cannot of itself produce
the mischief intended to be remedied, than a
law which wholly annuls a eoutraot If each
clause is taken according to an universal rule
that laws should be construed subjectam mate-
riam, the lesser evil requires the more ^ntle
aorrectivej but in aaaigning to the emission of
bills of credit, without their being made a tender,
a more restrictiva meaning than to the direct
violation of a contract, we act on the inverse
mle. The protection ia lessened la the same
proportion as the danger is increased; the
rater the mischief the milder and less elTicient
the remedy: reason and established principiei
alike require that a prohibition should be limit-
ed, as far as can be done, without producing
tbe mischief intended to be remedied, and ex-
panded so far aa is necessary to correct it. Tbe
construction must be according to tbe subject
matter of the law, strict or liberal as the nature
of tbe case requires, and the object to be effect-
ed will be defeated or accomplished, ut res
tnagis valeat quam pereat; that which will
effectuate all the objects of the prohibition can-
not be too narrow, that which goes beyond the
express word, or necessary implication, to ef-
'nct an object not within the miscliief, must be
too broad.
On the same rule which confines the prohibi-
tion as to contracts to State laws passed affect-
ing existing contracts, and excluding from the
protection of the Coustitution all posterior con-
tracts; a law making bank notes a legal tender
in payment of debts contracted after tbe pass-
ags of tbe tew would not be within the pro-
ff*t
hiblUon. On the nm« prtoclplt ^ whM M
unjust, oppressive, retrospective law, or om
which devests vested rights, ia held not to im-
Csir the obligation of a contract per se, it aimt
» held that a mere emission of bills of credit
is not within the mischiefs intended to be oot'
rected. There is no more danger in the exerciee
of this power, at the discretion of the Legisla-
ture, than in these unrestrained powers, to
modify the remedy to enforce the obligation of
a contract, which this Buurt hold not to b*
affected by the prohibition. There ia, in tba
nature of things, the same distinction betweea
bills emitted which are not made a ten^r, and
those which are a tender, as between the reinedj
and tbe obligation of a eontrart; nay, tbe dis-
tinction ia more marked. 'The oblige- [*lli
tion of a oontract, without an eSaetive remedy
to enforce it, would be "a name," and not *%
thing;" the word obligation would be an "emptj
sound," and tbe protection of the Conatila-
tion a solemn mockery. Yet if it ia held t0
prohibit the emission only of bills of cradlt
which were not a tender, it would prevent nana
but imaginary evils, and leave real practicMl
ones unredressed. To emit the notes of ma In-
dividual or a private corporation, for tbe par-
poses of eireulation, would be productive af
the same evils as the bills of credit of a State;
the mischief does not depend on wtio ia the
owner of the stock pledged for ita pa^rment, or
on whose credit they are received in arcolation-
Yet it is conceded by counsel and agreed by all
the judges that bank notes are not within tke
prohibition, though they are as muok "p^prr
money," "paper medium," aa the billa of credit
to the former species of paper money, wbee
neither are a tender in payment of debt*! Wliat
good reason can be assigned why tba Conatitn-
tion did not pr<rtiibit the emission of both, if it
prohibits one, and on what ground do«« tlw
discrimination restt It cannot be that ther* i*
less danger in having the paper medium of the
country based on the funds, faith, and credit of
the State, which can by taxation, levy a oob-
tribution ad libitum, on all the property of all
its citizens, for Its redemption (4 Wh. 428; 4
Pet. 603), than when a bank emits it on tW
mere credit of their oorporate stock. Nor that
a State will more readily sport with and aboaa
its plighted faith than a corporation, an iisJi
'dual, or a banking association.
These questions are not unworthy the oonoid-
otion 01 those who hold that it is not nae-
sary to bring bills of credit within tJie prohl-
tion, that they be made a tender in paymeut
of debts. That all "paper intended to eireulate
through the community for its ordinary pMr-
poses as money, which paper is redeemaU* st
a future day, the emission of any paper si«di-
im by a State ^vemmeut, for the purpooe ^
ommon circulation,' though not made a liiieliii.
nd though the faith, funds, or oredit of Un
t^tate are not pledged for its Tedemp.ion, u«
bills of credit. They are also worthy c'
which paper Is of the precise oharaeter obowa
defined, which is made a tender, and for tba
■demption of which the funds and foitbof tkm
Slate are both moat aolamnly pledged in tbe tew
Bmow BT Ai. T. Taa 0(nnfoinnu.T« Bunt m Ksrtccbt.
1«
treating Ita emttrion, are sot bilh of credit
within the prohibition. It will not mfflee that
■ disclaimer Is made of fti extension to bank
notes, or a deelaration that they are not included
within tbe mischiefs, without astlgning the
reasons, or referring to the authority on which
the discrimination ia made on just prindplBi of
construction. For myself, I rest on the most
solemn adjudications of this court, as well prior
as aubsequcnt to the ease of Craig t. Missouri,
■ettling the rulea and principles on which the
moat important prohibition in the tenth article
has been comtrued; and in applying them to
Its*] the 'clause now In question, find
atnindant authority tor holding It neeesaary that
bDl* of credit be made a tender in payment of
dabU, to coma within the prohibition. Taking
my deflnition of bill* of credit of a goremr— ^
from acta of Parliament, of the old and
Congreas, the articlea of confederation, and the
Conatitntion, I held in Craig t. Missouri that
eertlflcatea emitted by a State for circulation,
payable In future on the faith and funds of the
State, which certificates were made a tender,
were prohibited as bills ol credit. On the same
authority 1 now hold that the notes in question
are not such billa of credit, because not emitted
by the State, not made a tender in payment of
any debts to individuala, nor the faith or gen'
oral funds of the State pledged for their le-
demption. And further; on the authority of
acta of Parliament, of the old Congress, of
State legislatures before the adoption of the
Conatltution, and acts of Congi«ss since, and
of tbe common law, I make the distinction be-
tween the bUla of credit issued under the seal
jf a bank, and bank notes payable to bearer <m
demand, and hold that the latter can by no just
deflnition, or legal construction, come within
the prohibition. I have resorted to these source*
of mformation aa the fountain of oonstltu-
tional law and hare found in them abundant
cause of justification of the opinions which I
formed in the former case, and adhere to in this.
Tbe plaintilTs have relied much upon the
pleadings in this record, aa presenting the qnas-
tion in controversy in an aspect different irom
what it would have been if the averments of
the plea had been denied by a replication, in-
stMU of being admitted by a demurrer.
These averments are In the first plea: 1. That
the State, by the law establishing the bank,
declared that the Capital stock thereof should
ba 92,000,000. 2. "But which capital stock
tbe aaid bank never received, or any part there-
of, aa thete defendants aver." From the ad-
mlaslon of these averments. It ia contended that
iiuumuch aa the capital stoek was not made up
RDd paid into the bank by tbe State, nursuant
to the declaration contained in the law, the
fkith and credit of the State was legally, virtu-
klly, and morally pledged to provide this anumnt
of capital, as a fund for tbe redemption of the
aotas issued by the bank. And that baring
violated thla pledge, the State was bound, and.
If suable, was oompellable to pay them; whereby
tiM note* of the bank became bills of credit of
tba etate, aa effectually aa if the^ had been
emitted on an eipreas pledge of ita faith or
orcdit for their redemption.
The Bret averment is founded on the law of
InOMporation, and la an averment of mere
ouUter of law as to which it is among the old-
• U ed.
est and bast settled rules of ple«dli^, that the
law will not suffer an averment of that to be
law which Is not law; such averment or plead-
ing ii to DO effe-Tt or purpose, though admittel
by demurrer. PI. 108, a, 170, b. On an in-
spection of the law, It appears that tbia aver*
ment refeia only to the section which declare!
what the amount of the capital shall be; but
the plea wholly omits any reference to the see-
tion whicji spwtiBes the items which aliall com-
pose that capital *aa a fund for the i*I~~
, the stock of the State in the Bank of
Kentucky, and the securities taken by the bank
on a loan of its notes to individuals. The
mode of redemption waa in making these note*
receivable in payment tor lands, taui, debt*
due the State, the Bank of Kentucky, and the
Bank of the Commonwealth. This waa the
only pledge given by the State, and it ia not
averred in the pleas that this pledge was in any
way violated, by any refusal to receive tbe
note* for any such purposes; on the contrary,
it ia admitted that they were always so received j
consequently, the State has faithfully kept ita
faith, aa entire aa it was pledged by the law.
This part of the plea, therefore, is to no pur-
pose or effect, so far as it avers that to be law
whieh 1* not law.
Tbe notes of the bank constituted no part of
ita capital; while they remained on hand, they
war* worthless to the bankj when k)an<d out,
they became the evidence of a specie debt, du*
by the bank on demand to the nolder; the ee-
curities taken for repayment were part of the
capital for their redemption. But as they
were taken only for the precise amount of the
notes loaned, the amount of debt due by and to
the bank was equal, with only this difference,
that the bank paid no interest on their notes,
while they received interest on their loans; the
accretion of interest, therefore, waa the only
to the direction of the law, after they had per-
formed their function, in their reception as
Kyment by the State or the bank, it was no
IS to the bank which issued them; or if Uie
notes were returned to the bank by the State
treasurer, or the Bank of Kentucky, they were
as useless, a* capital, aa before they were Srst
issued- In re-issuing them, their operation
was the same, adding nothing to the capital[
indeed, the proposition is self-evident, that a
bank note is not a fund for its own pavment;
a debt due by a bank, is not a part of the cap.
ital stock, pledged for the payment of the debt.
It thus appears that by the terms and neces-
sary operation of the law, though the term cap.
ital stock ia used in the law, the thing which
wa%made the capital was the proceeds of lands,
taiea, debt, and bank stock; and as the law
and Constitution regard things, and not namea,
suoh must be taken to be the spirit, substaiace,
and effect of the law of incorporation. Ilence,
the second averment is of a fact wholly imma-
terial, since it waa no part of the law that the
capital should ever be received by the bank in
any other manner than the one pointed out,
which was in fact the only manner in which it
could be received; that ia, as a fund for the re.
demption of it* notes, bl virtue of this law,
1ST
Itt
Bauwih's OMiwtniTiPWAi. TiEwa.
porehuen of land, utd dtbton of tb« State,
or banki, httd the option of making pkynwut
In specie, tite nota of other banki, or of the
Common wealth Bank; thej would, of course,
pay in that medium which was the aaBicBt,
and cheapest to be obtained, which mnst Iiave
been the notes of the Bank of the Common-
tl4*] wealth, *or thej woald never have
been iasued. So that the inevitable effect of
the law,' and the emission of these notes on
loan, WSJ to make tbcir receipt in paj'ment
the mcMis of their redemption, in addition to
the securities on which the loan was made,
■nd precluded any reasonable probability, or
even possibility, that the proceeds of the
pledged funds would be paid into tlie coffers
of the bank, in specie, or the notes of other
bulks, unleaB the notes of the Commonwealth
Buk were more valuable, or ni
be obtained than either.
That such ft oonsumniatton was tn the «m-
tamplation of the Legislature, or c&n be as-
sumed by the court in order to give effeet to
the plea, is a propoeition too eitravagant ta
have been made by counsel; If this assump-
tion is not made, that the Stata wsj boond by
the law to make up the capital stock of ths
bank by the actual receipt of the pledged
funds, then there can be no pretense of ita re-
ception being a material averment. Had this
second averment been put in issue and found
for the defendant, the court must have ren-
dered a Judgment for the plaintiff non obstanta
veredicto if lie waa otherwise entitled to judg-
ment, on the ground tli-it the isaue was ob au
immatarial fact. 1 Pet. 71.
(Ante, 11 Frt., 480.)
Ta thia ease I enUrely eoncnr in the judg-
ment of the court, ai well as the reasons given
In the opinion delivered by the Chief Justice;
my only reason for giving a aepaTats opinion U
to notice some matten not referred to in that
opinion, which I am not willing should pass
without expressing mine upon them. The
eouree of the argument, and tile nature of sev-
etal question* Involved in the esse, give* them
an impurtanee deserving attention from these
and other considerations, which I cannot over-
look.
The first question which arises in this cause,
ia on an objection to the jurisdiction of the court
below; mnde bv the appellees, on the ground
of the want of proper parlies; and that the
StKt« of Massachusetts, being now the owners
which can affect their interest tn it. On on in-
spection of the record, the caae is one which
does not admit of this objection, if it was well
founded otherwise. The bill was filed in
June, and the pleadings closed in December,
1828, to that we have no judicial knowledge
of any matters which have arisen sinoe; con-
fining itself, as the court must do, to the
pleadings In the cause, and the decree of
the court below, we can notice nothing not
averred in the bill or answer, nor act on
any evidence which does not relate to them.
ISB'J 'An injunction is prayed for by the
Slaintiffa, to restrain the defendants from ersot-
ig a bridge over Charles River, pursuant ta
their charter in the Act of 182S, which they
allege to be a violation of their righta, by Im-
pairing the obligation of previous oontracls
madeby the Stata with the plaintiffs. When
the pleadings closed, the defendants had not
completed the bridge complained of; they were
then the only persons who had any present In-
terest tn tt; they were constructing It for their
own benefit, and were to have the sole and ex-
gluslve use of it, till by the tarmi of the charter
ft beoanw the property of the Stato; they were
•SI
therefore ths proper and the only partlei
against whom a bill for an injunction oooU
then be sustained. If, then, the plaintiffs wcr*
In June, 1828, entitled to a decree reati^niiif
the erection of the bridge, their right eanaot
be affected by any mattar pendente lite, or bj
BJiy reversionary right, which may have ac-
crued to the State. The case must be decided
as it ought to have been decided in DccemtMr,
1^8, and the only question before the eoiut
below on the pleadings and exhibits, waa on
the right of the ptaintiffe to the only remedy
Eyed, which was an injunction; that ooiirt
jurisdiction between the parties to the nuit,
to decide the question of right between them
but could go no farther than to grant the in-
junction against the erection of the bridge, b«-
eause the bill aveia no matter arising subse-
quent to December, 1828.
Whether on an amended, a supplemental, or
an original bill, a decree can be rendered for
an account of tolls received, and for the aup-
pression of the bridge. Is a question which eaa
arise only after a reversal of the decree now
appealed from, and such a state of pleading aa
will bring subsequent mattars before the court
It boa also been objected that the plaintiBa
have a perfect remedy at Uw, if their caae ia
such as is set forth in the bill, and therefor*
cannot sustain a suit in equity. If this caaa
came up by appeal from a circuit oourt, tho
question might deserve serious consideration;
but as the courts in Massachusetts derive their
equity jurisdiction from a State law, it b*>
comes a very dilterent question. The Supreaw
Court of that State is the rightful expoaitor af
its laws (2 Pet. fi24, G2G), and having sustainel
and eiereised their jurisdiction over this eaa^
as one appropriate to their statutory jujiBdie-
tlon in equity, it will be considered as thrir
construction of a State law, to which this court
always pays great, and generally oonclusira ra-
Bpect. Our jurisdiction over causes from Stat*
oonrta, by the twenty-fifth seetloB of tha J»
Baldwta.
Tui Chabi.es Rtva Bum
dieiarj Act, la peculiar; no error osn bs ■«-
•inied by k plaintiff In error, ezoept thoae
whicli that act baa apeeilled, and the court can
rareiM for no other. It nitt; bf a different
question whether the defendant in error ma;
not claim an afBrmance, on anj ground whiuli
would entitle him to a decree below, wUieh, it is
unneeeaiary to conaider, as these objectiona to
tb* jurisdiction cannot be aiistained.
The next question is one vital to tbe plain-
IS**] tiffs' ease if decided 'againat tbem,
which is, whether a charter to a eorporation is
a contract within the tenth section of the first
tutide o( the Conatitution, which prohibits a
State from pasaing any law impairing the ob-
Itntion of a ccntract) or whether thia pro-
hibition applies only to coutraets between in-
diTiduala, or a. State and indlviduaU. A^ this
quMtion is not only on all-importaDt one, aria-
Saig dinetly and necessarily in the ease, but
in one view of it, is the whole case which gives
the plaintiffs a standing in thia wnrt. It will
be next considered.
In this country every person has a natural
uid inherent right of taking and enjoying prop-
arty, which right is recogniied and secured
in the Constitution of every State; bodies, so-
cieties, and commnnitiea have Che same right,
but inasmuch as on tbe death of any |iersoQ
without a will, his property passes to bis per-
•onal Tepreeentative or heir, a mere association
at Individuals, must hold their real and person-
ml propertv subject to the rules of tbe common
l«w. A uarl«r is not necessary to (jive to a
body of men the capacity to take and enjoy,
unless there is some statute to prevent it, bjr
imposing a restriction or preEcribing a forfei-
ture, where there is a capacity totalceand hold;
the only thing wanting is the fmnchise of suc-
oeHlon, so that the property of the society may
pmam to snccessora instead of belia. Terms of
the Uw, 123; I BL Com. 368, STS. This and
other franchises are tbe ligaments wUch unite
K body of men into one, and Icnits them to-
gether a* a natural person (4 Co. 8G, a), oreat-
Uig a corporation, an invisible incorporeal be-
ing, a, metaphysical person (8 Pet. 323): eiist-
. Thk WaxuR Btmot.
130
Are cons)dei«d the same, and may
■ingle individual. It is the object and effect
of the incorporation to give to the artiflcial
person Uie same eapadtf and rights as a natu-
ral person can have, and when incorporated
either by an express obarter, or one is pre-
•unied from prescription, they can ta|ie apd en-
joy property to the extent of their franchises
su fully as an individual. Co. lit. ISZ, bj 2
D. C b- 300) 1 8«und. 345. It bestows the
eliaraet«r and properties of individuality on a
oollective and chan^ing^ body of inen (4 Pet.
OOZ), by which their rights become as s«cred
«s If they were held in severalty by (latnr^l
Krson. Franchises are not peculfar to corporj-
>na, the^ are granted to individuals, and may
be held by any persons capable of holding or
•njojing property; a franchise is property, a
right to the privileae or immunity oonferred by
tb* grant; it may oe of a corporeal or lucorpu-
r«sl right, but it is the right of property, or
Sropristy, In the thing to which it attaches.
rMichlsea an of rarloua grades^ from that of
a, mere right of sueeession to an estate in land,
to tbe grant of a county Palatine, which la the
highest franchise known to the law (as baa
been shown in tbe preliminary view; vide ante,
to, SO), the nature and character whereof is tbe
«ame, whether tbe grant is to one or many.
Corporations are also of all grades, and made
for varied objects; all governments are corpo-
rations, created by usage and common eonsent,
*or grants and charters, which create a [*18T
body politic for prescrilied purposes; but
whether tbey are private, local, or general Id
their objects, for the enjoyment of property,
or the exercise of power, they are all governed
by the same rules of law, as to the conatrue-
tion, and the obligation of the instrument by
which the incorporation is made. One univer-
sal rule of law protects persons and property.
It ia a fundamental principle of the oommon
law of England that the term freeman of the
kingdom, meludes "all persons," eeoleaiastleal
and temporal, iueorporate, politic, or natural;
it ia a part of their Magna Qiarta {2 Co. Inst.
4), and is incorportitpd into our institutions.
The persons of the members of corpomtiona an
on the same footing of protection as other
persons, and their corporate property secured
by the same laws whi«h protect that of indi-
vidnals. 2 Co. Inst. 40, 47. '^o man shall be
taken,' "no man shall be disseized," without
due process of law, is a principle tkken from
Magna Charta, infused into all oar State eon-
stitutlons, and ia made inviolable by the Fed-
eral ^vernment, by the amendments to ths
Constitntlon.
No new principle was adopted In prohibiting
the passage of a law bf s State which ahonla
impair the obligatim of » contract; it waa
'- -" — -■-- - fundamental princii '
rights
any power whatever. It was a part of that
system of dvil liberty which "formed the baais
whereon our republics, their laws and consti-
tutions are erected, and declared by the ordl*
nance of 17ST to be a fundamental law of all
new States." Tbia was the language of the
Congress, "And in the just preservation of
rights and property, it is understood and de-
clared that no law ought ever to be made, or
have force in the said territory, that shall in
without fraud, previously formed." 1 Laws U.
Constitution, several of the memben of which
wars also qismbers of Congress; it waa, there-
fore, evidently in their view, and may justly be
taken as a declaration of the reasons for in-
serting this prohibitory clause. As an im-
portant cotemport^neous historical fact, It slso
shovs that the convention intended to tnalee
the prohibition iqore dsfinfte, less extensive in
one respect, and more so in another, than In
tbe ordinance- Omitting the words "in any
manner interfere with or affect," the words
"impair the obligation of," were substitnted;
the word "private" was omitted, so as to ex-
tend tbe prohibition to all "contracts," pub-
lic or private: as "the Conatitution unavoid-
ablf deals in general terms" (1 Wh. 320) |
IS!
BaU)*in'i ConBTiTbttonu. VtkWB.
^•uneral objc^B (4 Wh. 407)1
:nade, no dcfinilion of a coDtrftcl given, or eX'
ception made.
No one can doubt that tbe teriiu of tbe pro-
hlbitloD are not onl; broad «aough to compre-
Kend all eoutracti, but tliat violence will be
138*] 'done to the plain meaninR of the lan-
guage by mukinK aiiy exceptioiioj' ooaHtnio-
tion; it must, therefore, necessarilf embrace
those contracts wbich grant a franchise or
property to individuals or corporationa, impoa-
ing the same rcitrainls on titatea aa vere iia-
posed by the English constitution on the pre-
rogative of the king, which devolved on the
Sta'eB by the Eevolutjoa. Vide 4 Wh. 661: 8
Wh. 5S4, 688. "The king haa tbe preroga-
tive of appointing ports and harens ;" tbe
"franchise of lading and dischjargine has been
frequently granted by the erotrn, from an
early period. "But though the king bad a
power of granting the franchise of ports and
imveui, yet be liad not the power of resump-
tton, or of uarrowing or contracting their lim-
ita, when once established." 1 BI. Com. 204.
ft would be Strang if the free citizens of a
republic did not hold their rights by a tenure
aa sacred bb the subjects of a monarchyj or
that it should be deemed compatible with Amer-
ican inatituttans to exclude from the protection
ot the Constitution those privileges and immu-
nities which are held aocred by the laws of our
ancestors. We have adopted them as our right
of inheritance, with the exception of such aa
■re not suited to our condition, or have been
altered by utage, or acta of Assembly. No one,
I think, will venture the assertion that it ia
incompatible with our aituation to protect the
corporat": rights of our citiEcns, or that in any
Stat« there is either an usage or law whidi
makes them less sacred than those held by per-
sons who are not members of a corporation.
No one can, in looking throughout the land,
foil to see that an incalculable amount of mon-
ey has been elipeiided, and property purchased
on the faith of charters and grants, or contem-
plate their violatiua by a law, which will not,
sonM day, take his posseBsiona from him, by
an exercise of power, founded on a principle
which appKes to the rights. If a State can re-
voke its grant of property or power to a subor-
dinate corporation, there can be no limitation;
there it no principle of taw, or provision of the
Coustitutiun, that can save the charter of a
borough, a city, a church, or college, that will
not equally save any other; of conaequenoe, if
all caimot be protected, none can be.
The federal government itself b but a cor-
poration, created by the grant or charter of the
separate States; if that is inviolable by the
power of a State, each of its provisions is so;
each State, in its most sovereign capacity, by
the people thereof, in a convention, have made
it a supreme lav of tbe State, parainount to
any State constitution then in existence, or
which may be thereafter adopted. The State
haa made an irrevocable restriction on Its own
once plenary sovereignty, which it cannot
loosen without the concurrence of such a num-
ber of Statea as are competent to amend the
Constitution. Bo far as such restriction ex-
, the State baa annulled its own power.
I^slatJve power, and do the thing pt^iiUM,
it can also remove tbe restriction on ita aovar-
eignty, by revoking tbe powers granted to On»-
Kess. The property and power *ef the ['llH
deral government are held by no other ot
stronger tenure than the land or franchiaea oi
a citizen or corporation; both rigbta were in
herent in tbe people of a State, who have made
S rants by their represent a tivea, in a oouventicMi
Ireotly by their original power, or in a Its'*'
lative act, made by the authority delegated in
their State constitution. But the grants thii]
made are aa binding on the people and tbe
State as If made in a convention; they are tbe
contracts of the State, the obligation of whicli
the people have declared shall nut be impaired
by the authority of a State; it aball not 'paat
any law" which shall have such object in view,
or produce such etfect. An act of a cooventiou
Is the supreme law of the State; an act of the
Legislature is a law subordinate; both, how-
ever, are laws of the State of binding author-
ity, unleHB repugnant to that law which the
State lias, by its own voluntary act, in the
Elenitude of its sovereignty, msde paramount
i both, and declared that its judges "shall be
bound thereby," an} thing to the contrary not-
withstanding. Bach SUte has mode tbe obli-
gation of contracts a part of the Constitution,
thus saving and connrmiiis them under the
sanction of ita own authority; no act, there-
fore, can violate the sanctity of contracts,
which cannot annul the wliole Constitution, for
it ia a fundamental principle of law ttiat what-
ever la saved and preserved by a statute liaa
tlw same obligation as tbe act itself. TUia
principle has been taken from the Magna Char-
ta of England, and carried into the grcAt char-
ter of our rights of property.
By Magna Charta (ch. Q) and 7 Rich. II., it
ia enacted, "that tbe citizens of London sbAll
enjoy all their liberties, notwithstanding any
statute to the contrary." By this act, the city
roay claim libertiea by prescription, charter, or
Carliament, notwithstanding any statute made
efore. 4 Co. Inst. 250, 263; 2 Co. Inst. 20,
6 D. C. D. 20, London, M. T. P.; llarg.
Ijiw T. I
8, 87.
The Constitution goes farther, by savi]^
preserving and oouGrming the obligation of
contract; and notwithstanUiiig any law pojised
after its adoption; and this confirmation beti^
by the supreme law of the land, makes a con-
tract B3 inviolable, even by a supreme law o(
a State, as the Constitution itself.
From the beginning of the revolution, tbe
people of the colonies clung to Magna Charta,
and their charters from the crown; their vio-
lation was a continued subject of complaint-
Vide 1 Journ, Cong. 27, 28, 40. 41, 00, KM,
143, 151, 167, 178. Une of the grievances aet
forth in the Declaration of Independenoe ia,
"for taking away our charters," etc
One of the causes which led to the Engliah
revolution was, ''They have also invaded Um
privileges, and seised on tbe charters of moat
of those towns that have a right to .be repre-
sented by their burgesses in Parliament; and
have secured surrenders to be made of tfaena,
by which the magi tit rates in them have da-
livered up all their rights acd privilegea, to
be disposed of at the pleasure of those evil
counselors," etc 10 Journ. Commons, 2 b.
In the laniFiiwe of Congress, **^he ['1*9
ttalitwtB.
Ths Chaiuk Rivca Budok <
Tai Waukx Bkhmk
1«D
IgfMUtive, oxecuUve, and judging powera, sre
AlT moved b; the nod of • minieter. Frivi-
l«geB and iiiimuniti«» last no longer than bin
smiles. Wbet) be frowns their feeble forme
dinolT«." 1 Journ. 69, SO. "Without incur-
ring or being charged with a forfeiture of
(belr rights, without bein^ heard, without be-
ing tried, without taw. without jiwtice by an
act of Parliament, their charter ia destroyed,
their liberties violated, their conetitution and
form of government changed; and all this upon
no better pretense, than because in one of their
towns a trMpaSB was committed on some mer-
chandise said to belong to one of the compa-
oies, and because the miaiatr; were of opinion
tbst such high political regulations were neces-
sary to compel due subordination, and obedi-
•noe to tlieir manJatea." 1 Journ. 41.
Such were the principles of our anoestora in
both revolutions; they are oonseorated in the
Constitution framed by the Fathers of our gov-
ernment, in terma intended to protect the
rights and property of the people, by prohibit-
ing to every State tbe passage of any law
which would be obnoxious toeuob imputations
OB the character of American legielatiuu. The
reason for this provision was that tbe tran-
scendent power of Parliament devolved on tbe
several States by the Revolution (4 Wh. 6G1);
•o that there was no puwer by which a State
eoitid be prevented from revoking all public
grants of property or franchise, as Parliament
eould do (Harg. L. T. 60, SI; 4 Wb. G43, 6ul|.
Tbe people of tbe States renounced this power;
•nd as an usBuriince that they would not ex-
erciee it, or if they should do so inadvertently,
that any law to that effect should be void; the
Constitution embraces all grants, cliarters, and
other contracts affecting property, places them
beyond all legislative control, and imposes on
this court tbe duty of protecting them from
tegislative violation. 0 Cr. 136; 4 Wh. 626. In
the same sovereign capacity la which the peo-
ple of each State adopted the Constitution,
tbey pledged their faith that the sanctity of
tbe obligation of oontracts should be inviola-
ble; and to insure its performance, created a
•ompsteat judicial power, whom they mads the
fliwl arbiter between their laws and the Con-
stitution, in all cases in which there was an
alleged collision between them. These prin-
ciple* have been too often, and too solemnly
Atlirmed by tbia court to make any detail of
their reasoning or opinions necessary.
In Fletcher v. Feck, they were applied to a
sraot of land by a Stale to individuals, made
by the authority of a State law, which was aft-
erwards repealed ((! Cr. 127), in New Jersey v.
Wilson, to an immunity from taxation granted
to a tribe of Indians (7 Cr. 104); in Terrett v.
Taylor, to a religious society (B Cr. 43, etc.) ; in
Dartmouth College v. Woodward, to a literary
eorporation. 4 Wb. 036. In all these cases
State laws which violated tbe grants ami
charters which conferred private or corporate
rights, were held Toid under the prohibition
1b the Constitution; the court holduig that as
It dontained no exception in terms, none could
141*] be made by construction, 'the language
being clear of all ambiguity, it extended to
«oi-poTationi as well as individuals. 8 Wb. 460
to 490, passim.
But while the court repudiates alt construe-
tiTS exceptions to th* prohibition, it equally le-
• Xi. ed.
pudlates its application to i
tracts; it will preserve the Immunity from tax-
ation, when it is granted in terms as in T Cr.
164; yet they will not raise an immunity by
implicatioQ, "where there is no express con-
tract." 4 Pet. 683.
There can be no difficulty in understanding
this oliLUse of the Constitution, its language is
plain and tbe terms well defined by tlie rules
of Isw, the difficulty arises by the attempts
made to interpolate exceptions on one hand, so
as to withdraw contracts from its operaLinn;
and on the other h|ind, to imply one contract
from another, tu make each implied cootriu.'t
the parent of another, and then endeavor to
infuse them all into the Constitution, as the
contract contained in the grant or clinrter in
question. If human ingenuity can be thus ex-
erted for either purpose with success, no oue
can understand the Constitution as it ia; we
must wait till it has been made by aucb con-
struction, wbat such expounders may think it
ought to have been, before we can assign to its
provisiona any deterpiinate meaning, in the
rejection of both constructions, and folluuring
the decisions of this court, my judgment is cun-
clusively formed — that the grants of properly,
of franchise, privilege, or immunity, to a nat-
ural or artillcial person, are alilie confirnipd by
the Constitution; and that the plaiutitfa are
entitled to the relief prayed in their bill, if
they have otherwise made out a proper case-
in tracing their right to Its origin, tbey
found it on a grant to Harvard College, by tha
General Court, or Colonial Council, in 1610, of
the ferry between Boston and Charles town,
which had belonged to tbe colony fraoi its first
settlement. In 1637, tbe govcimir and treasur-
er were authorized to teaae this ferry for three
years, at forty pounds a year, under which
authority tliey made aucb a tease, and gave an
excludive right of ferry between the two towns,
though they were not autliorii'.ed to da niore
than lease the ferry. The lease expired in IfilO,
when the ferry reverted to tbe colony, and was
granted to the college by no other deacriptiun
than "the ferry between lioston and Charles.
town," which the plHinliira contend was a
grant in perpetuity of tbt exclusive rij^lit of
ferriage between the two towns, and from any
points on Charles River, at the one or otber.
All the judges in the court below, as well as
the counsd on both aides, agree that the com.
mon law as to ferries was adopted and prevails
in Massachusetts; this part of the ciiae, then,
must depend on what were the rules and prin-
cipiea of that law in their application to such
a grant at the time it wns made.
It is an admittei] principle tbnt the king by
his prerogative was veatei] with llie ri^iil nl
soil and jurisdiction over tbe territory witniil
which he constituted by hia charter the colon-
ial government; tbeir 'grants had the 1*142
same validity as bin, and must be construed by
the same rules which regulate prerugatlve
grants. Vide 1 Pick. 182, etc.
As the king by his charter put the colonial
government in his place, they held tbe riglit in
and over tbe arms of tbe ei-a. the nnvigaUe
rivers, and tbe hmd in tile colony, lor tliu b-n.-
tit of the peiipit at the coluny, as a public
trust, not as a private estate; the people ol
the colony bad the ri^lit of hahing, n.ivi;>;itiiig
and passing freely in aod over tha public wa- I
Mt
BAumin's CoNSTiruTioNAi. Vnwa.
ters, Bubjeet to niali grants of fruichlae or
propert; ka idkjf have b«en made, or which
■hould M iiiKde ID future. But as any grant
of a private right in or over public property ia
neoeRcarily an abridgment of the public right
to the extent of auch grants, the law looks on
tbem with great watchfulnesa, and haa pre-
acHbed rulea for their construction, founded on
ti proper regard to the generat intereiit.
The prerogative nf the King is vested in him
■a neccBsarj for the purposes of aociety; it ex-
tendi to all things not injurious to his gub-
jeeta, but "atretcheth not to tbe duing of any
wrong" (1 Bl. Com. 237, ESS); the object! for
which it Ih held and exercised are for the good
of the subject, and the beneUt of the Common-
wealth, and not his private eiunlument. It ia
a part of the common taw (2 Co. Inst. B3, 490),
confined to what the law allows, and is for th«
public good (Hob. 201), and tbe increase of the
public treasure. Hard. 27; i Vent. 288. Tho
IcinK ia tbe universal occupant of the
public domain, which he may grant at pleasure
(11 Co. B6, hi S Pet. 74S; Cowp. 210); but bia
grants are voidable, if tbey are against tbe
good of the people, their usual and settled lib-
erties, or tend to their grievance (2 Bac. Abr.
149; Bho. P. C. TS) ; holding it for the common
benefit as a trust his prerogative is the gunrd-
ianship of public property, for the general in-
tercat of his subjects.
Tbia ii the reason why the king has a prerog-
ative Id the construction of his grants, by
which they are taken moat strongly in his fav-
or and agnirist the grantee, because they take
from tbe public whatever is given to an indi-
vidual; whereas the grants of private persons
are taken by a contrary rule, because the pub-
lie right is nut alTected by them. From a ver;
early period, it was the policy of the law of
England to protect the public domain from the
improvident, or illegal exercise of the royal
prerogative in making grants, and to secure
to pious and charitable institutions the beneflt
of doniitions made dii-cctlj to tUciti or for their
use, by rules of con it met ion appropriate to
each kind of grants, which were a part of the
common law. These rules wore alTirmed by
statutes in order to give tliem a more imposing
obligation; these statutes were passed in 1323,
1324. By the 17 Ed. II., st. I, eh. IS, it is eu-
acted that "Wlien our l>>rd the King givetli or
granteth land or a manor, with tbe appurte-
nances, without be mnke express mention in
hia deed or writin^Ti of knights' fees, sdvow-
sons of churches nnd dowers when thcv fall be
longing to such manor or land, theui at this
day the king reserveth to himself auch fees,
advowaona and dowers; albeit that among oth-
143*] er persons it *halh been observed other-
wise." I Ruff. 182, 183, By tbe 17 Ed. II.,
called "the statute of templars," it was de-
clared that grants and ilonntions for charitable
purposes should be held "so always that thr
godly and worthy will of the foresaid givers
be observed, performed and always religiously
executed as aforesaid." Iveble St. 86, 87.
8ui>sequent statutes have prescribed the same
rule, wbcreb; it has ever since been a funda-
mental principle of the Isw of charities that
tbe will of the donor should be tbe standard
of construction in relation to all such gifts
or grants (8 Co. 131, b; 10 Co. 34, b; 3 Co. 3,
b; T Co. 13, a), putting them ob tbe footing of
a will, in whicb tbe tntentloB of tbe taatatw
prevaila orer tbe I^ptl interpretation of ths
words.
Both elaaaes of eaaei are exceptiona to tbs
general rules of construing private grants. The;
rest, however, on the strongest grounds of
reason, justice, and sound policy, applicable
alike to England and thia country. Id eaaeiol
charities the rule haa been moat liberally ap-
plied by this court, aa it haa in England la tM
construction of statutes and granta, in favor ot
donations to tbem (4 Wh. 31, etc., 9 Cr. ti,
331; 3 Pet. 140, 480; 0 Wh. 455, 404; 2 Pet
680, 685); so of dedications of property to
public use, or the use of a town (12 Wh. 58ti
S Pet. 436, 437; 10 Pet. TI2, 713) ; the niki oE
which are essentially different from those whidi
relate to grants from one peraon to another, oi
laws for private benefit. In eases of grants by
the king in virtue of his prerogative, tho mM
preaeribed by the atatute of prerogative has
ever been a fundamental one in Ghiguind, "that
nothing of prerogative can pasa without ei-
preaa and determinate worda.* Hob. 243^ Hard.
SOS, 310; PI. 336, 337. In 1830, It waa laid
down In the House of Lords aa clear and
settled law, that the king's grants shall be Uk-
en most strongly against the grantee, though
the rule was otherwise as to private grants (a
BHgh. P. C. 316, 316) ; this rule was never <jaea-
tioned in England, and haa l^en adopted in bU
tbe States as a part of their common law.
This rule is a part of the prerogative of the
crown, which devolved on tbe several States by
the Revolution (4 Wh. 051); and which the
States exercise to the same extent aa the king
did, as tbe guardians of the public for tbs
benefit of tbe people at large. It is difScult to
assign a good reason why public rights ahonld
not receive the same protection in a republic aa
IB a monarchy, or why a grant by a colony or
State should be so construed as to impiair the
right of the people to their common property,
to a greater extent in Masaacbusetta than a
grant by the king would in England. But the
grant of this ferry in IMO was only a prero-
gative grant by colonial authority, which being
derived solely from tbe charter of the king, and
not by act of Parliament, could rise uo higher
than its source in bis prerogative, nor could it
paEs by delegated authority what would not
pass in the same words by original grant from
the liing; consequently the grant must be con-
strued as if he hud made it. If, however, then
could be a doubt on thia subject, by tbe general
principles *of the common law as adopt- [*)44
ed in that colony, there were reasons peculiar
to it, which would call for the most rigid rules
of construing grants of any franchise, or rifht
of any description, on the waters or sborca of
the rivers and arma of the sea within ita
boundaries.
In 1041, the Genera] Court adopted aa ordl-
nance which waa a declaration of DomuiHt lib-
erties, providing that riparian owners of land
on tbe sea or salt water, should hold the laid
to low water-mark, if the tide did not ebb and
flow more than one hundred rods; tbouch tbia
ordinance expired with the charter of ^e aol-
ony, there has been ever since, a corresponding
usage, which ia the common law of the Stat*
to this day. 4 Mass. U4, 145; 6 Masa. 438;
IT Maes. 148, 14B; 1 Pick. 182, etc. Tbe ri-
parian owner of land la Cbarlestown "may,
Bnldwlik
The CuAKLn Rivn Bumb t. Thk WAaBEti Budok
Vbeoever he pleAMt, Inelaae, bafid, and ob-
■tniet to low water- marli, and exclude kll man-
kind" (1 Mbes. 232) i It is therefore a nec^B-
■arj coneluBioD from the nature and extent of
th« ripArinn right, thkt gnuita of land on
Cbarlea RiTer muat be eonatrued by the mien
of prerogEtive granta. An}' eonBtniction which
would extend them beyond the limita described
In the grant, muat take from the adjoining ri-
parian owner a ri^bt which fi exduaivel; in
him; it cannot, then, ever have been the law of
UaMacbuaetta, that the grant of the ferr; in
fCDeral terms, between two opposite pointi on
the shore of Charles RJT«r, which ia an arm of
tbe aea and salt water, would give any right
beyond the landings. Had the grant been defi-
nite of the landings, describing them by metes
•nd bonnda, with the right of ferriage over the
rirer its eonstniotion must be the same aa a
feneral grant, for it could in neither case be
•ztended so aa to give a right of landing on
another man's soil.
Independent, however, of any considerations
of this kind, the law of Massaehusetta an the
•ubject of the eonstmction of griuitt, has been
•ettled by the repeated decisions of its Su-
preme Court, and ii thus laid down by Chief
Justice Fanons In language which meets this
«ue m all pointi. "PrlTate statutes made for
the aocommodation of particidar citizens or
eorporations, ought not to be construed to af-
fcct the rights or privileges of others, unless
•Bch construction resnlts from elpreas worda,
or necessary implication." i Mass. 14ii. In
^tse of a deed from A to B, tbe court gave it a
■triet and technical construction, exaluding all
the land not embraced by the words of the de-
■eription [0 Uass. 430, 440; S. P. 6 Mass. 356),
*wMre a tract of land is bounded on a street
or way, it does not extend aergss the street or
war, to include other lands and flats below
high water-mark." 17 Uaas. 149. In grant* by
tt^na no land passea by implication Siolesa
tbe intention of the parties to that effect can
be collected from the terms of the grant" (S
Pick. 428); "nothing more would pass than
would satisfy the Urms" (3 Pick. 3^9) ; "in
the absence of all proof of ancient bminds, the
srant must operate according to the general
deacription of the estate granted," 8 Pick. 176.
"By the common law It is clear that all arms
14S*] of the sea, coves, 'creeks, etc., where
the tide ebb* and flows, are the property of the
■overeign, unless appropriated by some subject,
la virtue of a grant, or prescriptive right vrhi^h
ta founded on the suppposition of a grant" (1
Pick. 1B2); "the principles of the common
tew were well under stood by the Oolonial L^-
lalatnre." "Those who acquired the property
OD Um shore were restricted from such a use of
H aa would impair tbe publie right of passing
orer the water." "None but tbe sovereign
power can atithoriie the interruption of such
p—sagea, because this power alone haa the
ll^t to Judge whether the publie oonvenience
wtmr be better served by suffering bridges to
ba ihmnn over the water, than by suffering the
aatmal paaugea to remain free." lb. 1S4.
"By tbe oommoD law and the immemorial
usage of this government, all navigable waters
■n public property for tbe use of all the citi-
■aiM, and there must be some aet of tbe aover-
I power, direct or derivative, to authorize
*A aaTijaWe rivet
may mtermptioB a
Is of common right a public highway, ani a
general authority to lay out a new higliway
must not be so extended as to give a power to
obstruct an open h[;;^w.iy, already in the use
of the public.^ lb. IBS, 187.
From these opinions, it would seeaa that the
Interest of the riparian owners and of the pub-
lic, would require for their protection the appli-
cation of such a rule of construing legislative
grants of any right in or over the waters of the
colony, aa would confine them to tbe descrip-
tion, BO that nothing should poos that was not
embraced in its terms, and no right be im-
paired, further than the words of toe law had
done It. The Supreme Court of Maisaebusetta
have not siiown any sensibility as to the rules
of oonstming grants, because they may be
called "prerogative" rules, or In permitting tbe
State to av^l itself of prerogative rtghU. ■
Pick. 41fl.
This prero^tive rule has been adopted In
New York, without any fear that it was inoom-
patible with the policy of a republio. "It is
an established rule that when a grant li aua-
ceptible of two const mot ions, tbat should be
adopted which Is most favorable to govern-
ment." 3 Caines, 295. Per Thompson, Justice:
"It is a general rule of law tbat in the exposi-
tion of governmental grants, tbat construction,
when the terms are inexplicit, shall be adopted
which is least favorable to the grantee." 803.
Livingston, Justice: "The idea of rolling out
the patent to the extent of four miles from
every part of the plains, is literally impractica-
ble, and when so modified as to be practicable.
It would give too difficult and inconvenient a
shape for location, and in a case of a location
vague and doubtful, It would be stretching the
grant over all tbe surrounding pnteats to an
unreasonable degree. A constructiou more em-
venient and practicable, better answering the
worda of the grant, more favorable to the
rights of the crown, and to the aecurity of ad-
joining patents ought to be preferred." 306.
Kent, Chief Justice: "No property can pass at
a public sole but what was aseeriaiiied and de-
clared" (1 J. Cas. 287); a rood will not paae by
general words thrown in at the end of the
'metes and bounds in a sheriff's deed." [*ldt
lb. £84, 286; S. P. 13; J. R. 6S1. "Such eoo-
struction will be given as will give effeet to the
intention of the parties, if the words t^y em-
ploy will admit of it, ut res magla valeat quam
pereat." 7 J. R. 223. But when the description
includes several particulars, necessary to as-
certain the estate to be conveyed, none will pass
except such as will agree to every description.
"Thus, if a man grant all his estate in his own
occupation In the town of W., no estate ean
pass except what is in his own occupation, and
is also situate in that town." lb. 224.
"A right to flsh in any water, gives no pow-
er over the land" (dtes Savill, 11); "nor will
prescription in any case give a right to erect a
building on another's land. This is a mark of
title and of exclusive enjoyment, and tt cannot
be acquired by prescript ion." 8 J. R. 3G2.
"A mere eusenient may, without express words,
pass as an incident to the prindpal object of
ihe grant, but it would be absurd to allow the
fee of one piece of land not mentioned in the
deed, to paiu as appurtenant to another dis-
■■ — t parcel, which is expressly granted by pre-
and deSnit* bonndanea." Thua, where land
•4S
Bujtwni^ CoHSTiTUTTORU. Vbws.
nieh description «a included no part thi
uid the road was Afterwards discontinued, the
grantee has do right to any part of the sit« of
the road. IG J. R. 462, 455. This court has
not departed from these rules in expounding
grants to corporations. "In describing the pow-
ers of such a being, no words of limitation need
be used. The; are limited b; the subject."
*%»! if it be intended to give its acts a binding
efflcacf be;ond the natural limits of its power,
and within the jurisdiction of ft distinct power,
we should expect to And in the language of the
Incorporating act, tome words indicating such
Intention." e Wh. 442. "It ought not to be
■o constnied as to imply this intention, unless
its provisions were such as to render the con
■truetion inevitable." lb. 443. The act must
oontain words indicating such intention, and
"this extensive construction must be essential
to the execution of the corporate power." lb.
446. "It ie an obvious principle that a grant
must describe the land to be conveyed, and that
the subject granted must be identified by the
description given of it in the instrument it-
self." 3 Pet. 96. Whatever the legislative
power may be, its acts ought never to be so
eonetrued as to subvert the rights of property,
unless its intention to do so shall be expressi'd
in such terms as to admit of no doubt, and to
show a clear design lo effect the object." 2
Wh, 203. Where a piece of ground in Charlca-
town was purchased by the United States for a
Davy yard, with the assent of Massachusetts,
by the following description, "one lot of land
with the appurtenances,'' etc., it was held that
an adjooent street did not pass, as there was
no intention expressed that it should pass; the
term "appurtenances" received a strict, legal,
technical interpretation. Tlie court recognize
the Bngliab rule as laid down in IS J. R. 454,
and refer with approbation to a case decided in
Kfasaachusetts, in which it was held that by
147*] the grant of a grist-mill with the 'ap-
purtenances, the soil of a way, immemorially
used for the purpose of access to the mill, did
not pass, although it might be considered as a
grant of the easement, for the accommodation
Of the mill. 10 Pet. 53, 64; 7 Mass. 0.
In this opinion, delivered in 1836. we find
the mle prescribed by thp statute of preroga-
tive recognised by this court ss it had been in
the supreme courts of New York and Massa-
chusetts, as to a grant of land with the appur-
tenances; which, with the other opinions herein
referred to, would be deemed conclusive evi-
dence of the law, on any other question than
one involving the application of the clause of
the Constitution agaiOBt impairing the oblit-a-
tion of contracta. But if this consideration is
to have any weight in the construction of a
grant by a government, It ought to operate to
as to exclude any broader construction than
the words thereof import; not only because it
may abridge the rights of riparian owners, and
the public rights of property, but for a still
ttronner reason; that every grant is a contract,
the obligation whereof is incorporated in the
Constitution as one of Its provisions. Of cou-
•equence the Ijegislature is incompetent to re- '
sume, revoke, or impair it, let their conviction
of itt expediency or public convenience be
what H may. It la, therefore, Uia bounden
I4«
duty of a oourt, not to make a grant op«rat* 1}
mere construction, so at to annul a State kw
which would be otherwise valid, and m^ke a
permanent irrevocable sacri&ce of the pubUi
interest or private emolument, further than hod
been done by the terms of the grant. Such has
been the uniform course of this court-
"The question whether a law be void for Its
repugnance to the Constitution is at all timeta
question of much delicacy, which ought seldom
if ever to be decided iu the amrmative in a
doubtful case. The court, when impelled by
duty to render such a judgment, would be un-
worthy its station, could it be unmindful of the
obligations which that station imposea. But it
ia not on slight implication and vague conjec-
ture that the Legislature is to be pronounced to
have transcended its powert, and its acts to be
considered as void. The opposition between the
Constitution and the law ahould be auch th&t
the judges feel a dear and otrong conviction of
their incompatibility with each otiier." S Cr.
12S. "On more than one occasion, this coort
have expressed the cautious circumspectioe
with which it approaches the consideration ol
such questions, and has declared that i
Wh. 625. "It has been truly said that the
presumption is in favor of every legislative set,
and that the whole burden of proof lies on him
who denies its constitutionality." 12 Wh. 43ft.
From these principles it follows thiLt no 1^-
islative grant can be held void on account of
its alleged violation of a former grant, which it
not delinite in its object, the thing granted, and
its extent; if it is so imperfectly described aiB to
leave it doubtful whether tlie 'subject [*14S
matter of both grants is the same, the doubt
operates conclusively in favor of the powar of
the Legislature to make the second griint.
This consideration alone necessarily leada
to the rule for construing public grant* of
property or franchise, even mui-e stiictiy Ihftn io
England; the reason exists in the pravision of
the Constitution which prohibits any legislative
violation of the obligation of a contract; where-
as, in England, Parliament can revoke or an-
nul a grant of properly or puwur, as the acvmJ
States could before they adopted the ConatiM-
I Wh.
, 651.
It ia, however, not necesfary for the purpoaes
of this case, to hold the pluinlilTs to any other
rules of eonstruction than those laid down bj
this court in 6 Pet. 738, to which the court bw
referred in their opinion. These rules wen
extracted from the adjudged cases in England,
in this and the highest State courts, aa uni]Uee-
tionable principles which were deemed too flrmly
established to be shaken. Yet the rule thus
established is attempted to be put down, by
calling it "the royal rule of cuiidtructton.
Vide 8 Pst. 762. The prerogative rule a^
one incompatible with republican institution*.
To remarks of this kind 1 have no reply. It
BUlHces for me that I find the settled doctrine of
this court to be supported by an uniform cur-
rent of authority, for five hundred years, with-
out contradiction; it sufficed also for the ma-
jority of the court in this caee, to refer to the
case in 6 Pet. 638, aa to the rules of eonstmlBf
Cublic grants, it not being deemed nectssarr to
If down this qualifications whieh applied ts
Bkidwlm.
Thi Char 1 4
Rivn BarDOE <
Thi W*Bntn Bbidqb.
p«fttrttl«r caaea, which are noticed In that
opinion.
In the argument of tbia case the counsel on
neither aide deemed that caae worthy of a refer-
eiice, nor is it noticed in the dissenting opinion
In which the general principle laid dawn ia
assailed; yet a most lingular course has been
purtiied in relation to the opinion delivered, in
which that principle was aanctioned by six of
the judges. The cases referred to, the princi-
ples laid down, the very expresaions of the
court have been carefully extracted from that
caae and applied to this, in order to impress
upon the profession the belief that the court
had intended to establish a leas liberal rule of
construing public granta than the English de-
cisions would warrant. Whether this course
has been pursued in ignorance of that opinion,
or under an expectation that it was not, or will
not be read, is immaterial; it ia a duty due to
the profession and the eourt that their princi-
ples shoDid be known. I therefore subjoin an
extract, to prevent further misapprehension ol
their tneaning
"A govcmnnent la never presumed to grant
the same land twice. 7 J. R. 8. Thus a
grant, even by act of Parliament, which con-
veys a title good against the icing, takes away
no right of property from any other; though it
contains no saving clause, it passes no oilier
right than that of the public, although the
grant la general of the land. 8 Co 274, b; 1
Vent. ITS; 2 3. R. EBS. If land ia granted
by a State, ita legislative power ia incompetent
14ff*] t« annul the grant 'and grant the land
to another; anch law is void. Fletcher v. Peck,
fl Cr. 87, etc. A State cannot impose a tax
on land, granted with an exemption from taxa-
tion. New Jersey v. Wilson (7 Cr. 104) nor take
away a corporate franchise. Dartmouth Col-
lege V. Woodward. 4 Wheat. SIS. Publia
grants convey nothing by implication; they are
construed strictly in favor of the king. Dy.
3S2, a; Cro. Car. 189. Though auch con-
struction must lie reasonable, such as will make
the true intention of the king as expressed in
hia charter take effect, is for the king's honor,
and stands with the rules of law. 4 Com.
Dig. 42S, &54i G. 12; 10 Co. SS. Oranta of
the strongest kind, "ex speelali gratia, certa
Bcientia, et mero motu," do not extend beyond
the meaning and intent expressed in them, nor,
by any strained conetruction, make anything
paas against the apt and proper, the common
and usual signiDcntion and intendment of the
worda of the grant, and passes nothing but
what the king owned. 10 Co. 112, b; 4 Co.
36; Dy. 350, 1, pi. 21. II it grant a thing in
the occupation of B, it only pasaea what B
oooupied; this in the case of a common person,
a fortiori, in the queen'a case. 4 Co. 3fi, b;
Hob. 171; Hard. 226. Though the grant
and reference ia general, yet it ought to te ap-
plied to a certain particular, as in that ease to
the charter to Queen Caroline— id certum est
quod oertum reddi potest. 9 Co. 30, a, 4S, a,
17, b. S. P. When the king's grant refers in
general terma to a certainty, it contalna as ex-
press mention of it aa if the certainty had been
expressed in the same charter. 10 Co. M, a.
A grant by the king does not paas anything not
de«ci1bed or referred to, unless the grant ii aa
tnily and entirely as they euna to the king,
and that er certa sclentta, etc Dy. 950, bj 10
Co. 66. a; 8 Hod. 2; 4 Com. Dig. MS, M8.
Where the thing granted ia descried, nothing
else passes, aa "those lands." Hard. £20.
The grantee ts restrained to the place, and
shall have no lands out of it by the generality
of the grant referring to it; as of land in A in
the tenure of B, the grant ia void if it be not
both in the place and tenure referred to. Tb«
pronoun "ilia" refers to both neceaiarily, it la
not satisfied till the sentence is ended, and
governs it till the full stop. 2 Co. 33; 8. 1>.
7 Uass. 8, 0; IS J. R. 447; S Cr. 237; 7 Cr.
47, 48. The application of thi» last rule to the
words "de illas," in the eighth article, will
settle the question whether its legal referioice
is to lands alone, or to "granta" of land. The
general words of a king's grant shall never be
so construed as to deprive him of a greater
amount of revenue than he intended to grant,
or to be deemed to be to hie or the prejudioeof
the commonwealth. 1 Co. 112, 113, b-
Judges will invent reaaona and means to make
acts acconiing to the just intent of the parties,
and to avoid wrong and injury which by rigid
rules might be wrought out of the act." Hob.
Z7T. T^ words of a grant are always con-
strued acDordiOK to the intention of the parties,
BS manifested hi the grant by its terms or by
the reasonable and necessary implication, to be
deduced from the situation of the parties and
of the thing granted, its nature and use.
■6 Maaa. 334, 34S; 8. & R. 110; 1 ['ISO
Taunton, 4D5, SOO, 602; 7 Maaa. 6; 1 D. & P.
376; 2 J. R. 321, 322; 6 J. R. 6, 10; 11 J. R.
4DS, 400; 8 E. 16; Cro. Car. 17, 18, 57, 6B.
168, 160; Plo. 170, tk. 7; B. 021; Cowper,
360, 303; 4 Yeates, 163.'' The United StaCea v.
Arredondo, 6 Pet. 738, 740.
On these rulea, prineipit^, and cases, I
a this case after the first
feel a perfect conMence
in it; willing to atand ha-
1 this attitude, I will not
be forced into any other, by any omission of a
duty, however unpleasant. With this extract
before them, the profeasion can now determine
whether the court has impugned or aflirmed
the true principles of law. on the construction
of public grants by prerogative or legislative
power, of any portion of public property held
as a trust for the benefit of all the people of ft
colony or State.
The grant of the ferry Is in these words:
"The ferry between Boston and Cbarlestown
ia cranted to the college."
"Tliat these waa but one ferry between thote
places is admitted; its location had been pre-
viously fixed by the General Court, at certain
points in the resolutions which they had passed
from time to time; those had been the only
landings, to and from which paaaengers bad
been taken, so that the term "the ferry," was,
in itself, a perfect and complete description
thereof. It had been leased to Converse, and
a clause was inserted in the case that he was to
have for three years "the eote transporting of
cattle and paaaengers;" but this right expired
with the lease, when the ferry reverted to tbe
Guliiny unencumbered with any condition
whatover; ao that they might make snch a
grant of it aa they pleased. Had the grant to
the college been, "aa fully as the same bad
formed my opinion i;
argument, and now
that they fully eusta
fore tbe profesaio
IM
B*U>wnt'8 CONBTITUTIORAL VnwB.
b«en hild bf Convene," It would hkve afTorded
totat evidence of intention to bave made it
■xcluaive; but no principle ia better settled than
thmt when the words "as fully and entirely
U it came to the hands of the king," are omit-
ted, nothing paMea which ia not specially de-
•eribed. Vide B Pet. T3S, and cases cited.
The expired lease to Converse, then, can
bava no effect on the grant aa matter of lawj
•0 far as it iodicatea intention it is adverse to
the plaintiffi, for when an exclusive right was
intended, it was given in eipreis terms; where-
a* this grant ia, the ferry, ilta, that ferry,
wbieh had been eitabliatied and kept up for ten
yean previously, at certain landings. Thia
pronoun "the," or "ilia," is necessarily de-
scriptive of the place by direct reference to ttie
ferry aa located in fact and long occupation.
"Farry," is a term of the law, perfectly defined,
and a grant of "the ferry," ''that ferry," haa
the tame effect as a gruit of *^hat land,"
"those landa," by which nothing else can paa*
but thoae which are referred to in worda of
desoription, by metea, bounds or occupation.
Ia ascertaining the meaning and effect of the
grant of a ferry, we must oeceasarily look to
the ownership of the landing-places, whether
it la in the grantee of the ferry or in the pub-
ISI*] lie. We must alio took *to the owner-
■blp of the bed of the river, over which the
right is granted. If the river is private prop-
erty, a grant of a ferry to the owner of the
bed and both sides thereof, is necessarily ex-
eluaive to the extent of hia property! the pub-
Uo have no rights thereto, snd no man baa a
right to land thereon without bis permission.
An that the owner acquires by the grant, is the
franchise of exacting a toll, for flie right of
passing over hia own property, the extent of
which is limited thereby. The toll la for the
use of his landing, his boats, and passing over
his land to and from them, which excludee
everv construction of tbe ^ant, by which it
would interfere with the right of another. 4
Burr. 2165. A ^ant of a ferry over a pub-
lic river "ia a liberty by prescription, or the
king's grant, to have a boat for passage upon a
great stream for carrying of horsca and men
for a reasonable toll." Terms of tlie Law,
tiS. It is to Ita extent a diminution of the
public right, encumbering public property by
the grant of a franchise of exacting toll for
passing over it in his boats. If the landings
OD a public river, or an arm of tbe aea, are
owned by the king, the grant of a ferry in-
eludca the right of landing on tbe shore, or iu
a jpublic highway, as well at the franchise of
UiA. But the king cannot grant to A a ferry
batween tbe landing-places of another, for the
terry ia in respect to the landings, which must
be owned by the public or the grantee of the
lerry (Bav. 11, 14), or he mustliave the eon-
sent of the owner to uae them. I Yeatea, 1ST,
]«l B S. ft R. 82. This principle is said to
bavs been overruled in two late casea; on ex-
amination, however, they aCQrm it in 12 E.
S3S, S48; » question arose how a tax should
be asaesaed on a ferry, on which the King's
Beneb decided that it should be assessed on
tba landinea, as tbe local, visible, tangible
•vjdaiee of the property in a ferry. In 6 B.
A C 703, the rule as laid down in Ssrile waa
eoiri^nd, when as far from overmUng it the
two judgei who gave aa opinion declared tt*
rule to be that it was sufficient if tbe grantceat
the ferry bad a right to use tbe landing- ptacei,
though he did not own them, so that the only
difi^erence between tbe eases is, between the
owning the landings in fee, and a rigbt to use
them under a lease or otber consent of tb>
owner. But if in these or any other modna
cases, the doctrine laid down in Savile had been
expressly overruled, it would not have had >
retrospective effect to 1040, and changed the
nature of the grant of thia ferry. Iilasn-
chusetts would, I think, not have recogniud
tbe power of English judges at this day to alta
tbe rigbta of property, held by this ancient
charter. A mere grant of a ferry by general
terms, must, from ita nature, be confined to
tbe landing places and the route through tbe
water between them; because if extended far-
ther, it moat interfere with the rigbta of ripari-
an owners, and the common right of everyone
to paas and repass on a public river or an am
of tbe sea. To extend the franchise by impll-
catioQ to a place where the grantee has neither
the right of landing or the franchise of exact-
ing toll for passage, is also a restraint on tbe
king against granting a concurrent franchise
to a riparian owner, «i public •land- [*1S1
ings or the ends of ronds leading to public
waters, aa he may think neoessary for the pub-
lic gooil. Hence It baa been an established
principle of tbe common law, from Magna
Charta to th« present time, that tbe pablle
right in and over all navigable rivers and arma
of tbe sea, continues till an appropriation of
some part is made by grant, on good conaidera-
tion or reasonable recompense by the grantee.
1 Ruff B, ch. 30; i Co. Inst. S8; 1 Uod.
104; Willes, 2B8; 1 Salk. aS7. A general
grant by the king of land in a royal havea, oc
which is covered by the sea, paases only tbe
spot which is definitely granted, or whidi haa
been identified by a posaesaion under the giant;
and what ia not described in the grant, or lo-
cated by possession is presumed to have been
abandoned. Though the grant waa made ia
162B, and ite general terms were broad enougk
to embrsce the place in controversy, the bur-
10 Prioe, SBB, 410, 453; 1 Dow. P. C 32S.
The rule that public grants paas nothing by
implication, baa teen most rigidly enforced al
to all grants of toll for ferries, bridges, wbarrss,
keys, on navigable rivers and arma of the sea,
of which there cannot be stronger illostratioaa
than in the case* which have arisen on the eat-
toms of London, and other places which im-
pose tolls of various deacriptions. By Hagns
Charta, the customs of London and oUier
cities are aonfirmed. which has always been
held to give to those customs the force of acts
of Parliament; yet these customs have always
been held void, ao far as they imposed a toll at
any place where the city had not a right to de-
mand them, or for a service or aecommodattoa
not performed or afforded, according to the pre-
cise terms of the enstom. Hob. 175, ITB; 1 Hod.
48; 1 Vent. 71; T. R. S33; t Mod. 104, lOfi.
So it ia where a toll Is demandable by aa ex-
press grant, by custom or preseription on a pub-
lic bi^way, in a public port, or (or the use of
public property, whkb is termed '^U tkrou^
Thb Chakleb Bivkb Budqb f. Thb WABmn Budok.
bWMiM tiM puty dKinEng it !■ preav
to hMt had no original light to the plM«
irbere he deni»ndi toll. lie miut therefore
■how not only hii right to toll, by euatom,
praaerfption or gnuit, but mxut show some
toniiderktlon for it, lome burden on himwlf,
•oaie beneSt to the public, or that he or tlioea
under whom he clilina had once » right to
the locni in quo which ntd been commuted for
tbe toll, and this conaideraticm must be ap-
plied to the precise apot where toll is claimed.
Cto. m. Tlli S Wils. 299; S Burr. 1406; 1
D. A E. 660; 4 Taunton, 137; 6 E. 438, 4G0;
4 D. & £. 667.
A elaini of toll at a place where no toll has
been granted, or where no coniideratloD for it
exists. Is TOid bj Magna Charts and tbe stftt-
ute of Westminster, which prohibit all eril
tolls; Bucb as are exAoted where none are due,
exaetinE unreaaonable toll where reasonable
toll only is due, or claiming "toll through,"
iritbout fair consideration or reasonable recom'
penae to the pubUc. 2 Co. Inst. 219.
Toll traverse, or a toll demanded for passing
15»*] on or o»er the privkte •property of the
claimant, or using it in any other way, is of s
different description; being founded on tbe
right which every man has to the exclusive en-
joyment of what ia exclusively bis private
property, its ute by others is a sufficient con-
sideration for tbe exaction of toll. Ho. S7Sj
2 Wils. 299; Oowp. 47, 48. But whenever toll is
exacted for the passage over public water, the
Dftture of it changes; its foundation not being
property, it rests on a grant or prescription,
And if the toll Is uareasonable the grant is
void. 2 Co. Inst. 22i, 222. The grantee must
hftve the ownership or usufruct of tbe locus in
quo (I Yeates, 167; B S. ft R. 32), and within
reasonable bounds; a prescription for a quay
half a mile in length la not good, unlesa tbe
vessels unlade at the wharf; the court say, "be
may as well prescribe to the condnes of
France." T. B. 223; 1 Mod. 104.
The right of ferry is a franchise which can-
not be aet up without the license of the king
(Harg. L. Tr. 10), or prescription (S D. C. D.
361, 367; Hard. 163; Willes, 612; 1 Nott &.
U'C. 394); "rights of ferry on the waters of
the public are not favored;" they come to6 near
ti monopoly, and restrain trade. Hard. 103.
"CourlB are exceedingly careful and jealous of
these claims of right, to levy money upon a
Bubject; these totia began and were established
by the power of great men." 2 Wils. 299. A
iMislatlve grant of a ferry, with a landing In a
Kblie road, tbe soil whereof is not owned by
I grantee, is void (9 S. k R. 32) ; a charter to
A tarnpibe corporation does not authorise them
to ereet a toll-gate on an old road, unless
•pecially authorized, or it Is necessary to give
* reasonable effect to the statute (2 Mass. 142,
146; 4 Mass. 146, I4B); a town must show
r>raperty in the land to low water-mark, to au-
borise them to regulate Its use under a law. 6
J. R. ISS. The contideration of grants of fer-
ric* !• the obligation to provide and keep up
proper accommodations for the public (& H.
VI. 15; 6 B. 469j S. P. I Vel. Jr. 114); the
ri^t ts commensurate with the duty, and both
indispensable to the right to a ferry, a right to
land at one place is not an Incident, and can-
not be made an appurtenance to a right to land
at anotlier place, even by the express words of
the grant, according to the law of thia court,
unless some other words are added by way of
deseription, besides appurtenances. I^nd can-
not be appurtenant to land, nor can one oor-
poreal or incorporeal thing be Incident or ap-
purtenant to another thing of the same nature;
the incident must attach to the principal thing.
10 Pet. 64, and cases cited. The principal
thing is that which is of tbe higher and most
profitable service; the incident is something of
a lower grade, which passes as sppondant or
appurtenant to the principal thing, without the
words cum pcrtinentibus. Co. Lit. 307, a. The
gnnt of a thing carries alt things included,
without which the thing granted cannot be
had; that ground is to be understood of things
inddent and directly necessary (Hob. 234); so
that *a man may always have the nee- [*lfi4
essary circumstances when he hath a title to
tbe principal thing. Fl. 16; PI. 317; Co. lit.
66, a. A. parcel severed from a manor, does not
pass by a grant of the entire manor, unless
where the severance la merely by a leaae for
years. An advowaon appendant does not pass
by the word appurtenances aa a part of the
thing granted; it will pass where the grant la
made with the additional words, "as fully and
entirely as they came to the hands of the king,
and with his certain knowledge," but not with-
out these words. 10 Co. 06; Dy. 103, b.; PI.
6, 350, b; PI. 18; 2 Mod. 2; 4 D. C. D. 646,
647, 648. When the word appurtenances ia in
the grant, there muat be an intention manifest-
ed by other words, so that the court oan be
enabled to give them their intended effect, and
hold them to pass wliat had been occupied, or
used, with the thing directly granted. PI.
170, 171; 11 Co. 62; Cro. Jac. 170, 189; Dy.
374; 7 E. 621; Cowp. 360; Cro. Car. S7, 68.
This is tbe rule in cases of private grant* of
land, which are taken most strongly against
the grantor, and in favor of the grantee, which
has never been questioned; a fortiori, it must
aiiply to public grants, and it follows conclu-
sively that where a [;rant by the king or a col-
ony omits even tbe ward appurtenances, it will
not pass a right which would not pass by that
word alone. There is, however, another na-
questioned rule, more directly applicable to the
grant of a ferry than the mere grant of Isnd,
or a substance to which a thing of the same
substance cannot be appendant or appurtenant.
"But the grant of a franchise, a liberty, a
particular right on land or water, passes noth-
mg more than the particular right. 1 Co. Ut.
4, hi 4 D. C. D. 416, 642; 2 J. a 322. Tbe
grant of a franchise carries nothing by implica-
tion. Harg. L. T. 33. Every port has a ville,
and tbe grant of the francbisi) of s port shall
not extend beyond the ville, because the court
cannot notice it any further ax offlcio, though
they will award an inquest in some cases to as-
certain the extent. Harg. L. T. 40, 47. Ancient
grants and charters are construed according to
the law at the lime they were made. 2 Co.
Inst. 282; 4 D. C. D. MO, 419; Co. lit. 8, b, 94,
b; 0 Co. 27, 2ti. The location of a patent one
hundred and sixty years old shall not b« ex-
tended beyond the aotual posaeasio pedis under A
BuAwiN'B GoxsTiTtntoifi
Itf ita boandkrica mast be aRcerUln«d hj poa-
MBeion, and not the words; every doubt ought
to be turned (againBt the party who keeks to
extend them. 7 J. R. B, 10, 14. "It is undoubt-
edly essential to the validity of every grmt,
that there should be a thing sraoted, capable of
being distinguished fhim other thing* of the
ume kind." 7 Wh. 362.
A toll by prescription is better than by grant
(2 Co. Inst. 221); so Is a franchise of a port,
because the extent is according to the prescrip-
tion (Uarg. L. T. 33); but it must be confined
to the subject mntler and the ancient lue. 1
WilU. 1T4; Q E. 216; 7 B. 108; 2 Conn. R.
601; 8, P. WilU. Z88; 4 D. A E, 487; 2 H.
Bl. 18S. Under a charter for the erection of
» road, canal, or bridge, the corporation mutt
confine tbeir action within the precise limits
!&&'] designated; any 'deviation from the
route prescribed makes them trespassers.
Coop. 77; 8 Dow. P. C. 619, 624. The law U
the same though the road or canal is tbe prop-
erty of the public, and constructed for general
benefit (20 J. R. 103, 739; 7 J. G. 832. 340);
the definition of a road is "the space over which
the subject has a riRht to pnsa" (2 D. ft K
nt); beyond which there is no road; so of a
canal, bridge, or ferry, with a grant of toll
for passing: the nature and object of the grant
in prescribing bounds Is riecFH^nrlly a limita-
tion; nor doea it make any dilTerence whether
the toll Is demanded in virtue of a direct grant,
or one presumed by prescription, where there
is no consideration existing at the preci«e point
where toll is exacted, aa is evident from the
reason of the rule; "because it Is to de-
Erive the subject of bis common right and In-
eritsnce to pass through the king's highway,
which right of passage was before all prescrip-
tion." Mo. 674, 676; PI. 793; 2 Wila. 299.
If toil through is prescribed for, for passing
through the streets of a town, the party must
show the Btrt.'(:',9 which he was bound to keep
in repair, and that the passage waa throDgh
such street. 2 Wils. 299.
It would be easy to add refprences to other
cases, but as the principles settled in those al-
ready cited, have for centuries been the estab-
lisherl law of England, and the received law of
all the States since their settlement, it is evi-
dent that no construction can be given to this
grant, which will make it pass tbe exclusive
right of ferriage between Boston and Charles-
town. It can have no analog to cases of do-
nations to charities, unless it shall be held to
a charitable act to roll out the grant (in the
words o.' Chief Justice Kent, 3 Gaines, 30«) to
the extent, of aome miles of the shores ol s
great river, so as to create a monopoly of the
tight of pasHage, and prevent the Legislature
from promoting the public welfare, by the
grant of a concurrent terry. On the first »r-
pimpnl of this case it was contended that the
?rant extended one third of an ancient day's
ravel, a dieta, or seven miles from the landings
on each side of the river, which would be
twenty-eight miles; this extravagant pr«ten-
•ion waa abandoned at the last argument, so
that it is unnecessary to test ita validity. But
the ptaintiffs still Insist that their grant must
bp — '■vtended as to prevrnt any injurious
•ompetitlon for tbe toll due for passaiie of
boBM Miweea tbe p>ftoes, mt fsrriM cent*
■4a
to secure to tbem tbe whole ibi. ._ ..
the landinn on each side of tbe river.
This is the ground on which they ask aa n-
junction to prevent the aniaanee by the erec-
tion of another bridge, and a decree of auppns-
sion if it should be erected; because, cUimini
under the ferry grant, tbe frandiiM tbcreliT
granted ia Imparted to the bridge to It* fnU
In considering this poaition I will tint ex-
amine the authorities on which it ii etteupted
to be supported.
In the Year Book, 22 H. VL 14, IB, Paston,
J. aald: "And the law Is the same if I have
from ancient time k ferry in a ville, and an-
other 'should set up another ferry on [*1B>
the same river near to my ferry, ao that the
profits of my ferry are diminished, I may have
against him an action on the eaae." That tbia
has been the received law ever since Is not i*
be questioned; but in its application to th
present ferry grant, there are two importaw
differences to be considered.
The nile applies onl^ to anclmt ferries; that
Is, ferries by prescription, or a presumed grant;
next it applies to ferries in a Wile, which ia thna
defined: "Ville is sometimes taken for a maaor,
and aometimes for a parish or a part of it'
(Cow. L. Int.): "^ titbing or town" (1 Bl.
Com. 114), '^nsistloB of ten families at least"
(6 D. C. D. 249; 2 Str. 1004, 1071); "^he oat
part of a parish consisting of ■ few hoiis«L aa
It were separate from it." 3 Toml. L. DioL 74t,
b; vide Co. Litt. 116, b. From the nature 9t
such a ferry, the rule applies only witbin thcM
places; it never has been applied in Eng-
land, to ferries on arms of the sea, between two
places on Its shores; the doctrine waa expressly
repudiated in Tripp v. Frank, 4 D. & E. 007),
where there was an exclnaive right of fen; by
prescription, across tbe Humber, bet wet*
Kingston and Barton, the proflts of which ware
diminished by the defendant's ferry from
Kingston to Barrow. It could not apply in this
subdivisions s
land. Our towns, boroughs, and cities are h
off by established lines, without regard to tbe
regulations of Alfred, or the number of famllica
or houses requisite to compose a hamlet, a
ville, a part of a manor, or parish.
The inhabitants of theae villes did not owa
the land tbey occupied; they held tmder the
lord of tbe manor in whom the right of ferry
was vested, as the owner of the soil and agraat
of the franchiae by prescription.
The tenant of that part to which it attadtsd
by prescription, being obliged to provide and
maintain boats, etc., waa protected against oon-
petition by tbe other tenants of the ville, wlw
neld under the same lord. It wan a part of Ue
tenure by whiob the tand was held that tbe
tenants shonld pass at the ferry; should ffriixl
the oom raised on the same land at the lord^
mill, or that of his tenant, so that tbe profit* of
the anolsnt mill should not b« impaired to their
injury. £2 H. TI. 14, 16, by Paston. J. Tbe
nile, of course, could have no applieatioa be-
yond tbe ville or manor, in which tbera existed
sucb privity of tenure; the nature of tbe tight
ia Inoonipatible with tbe jus polilicwn i« pabBc
w«t«ra, or private TigfaU of propntj kald fai-
dependently of tba lord of th« imnor. H«nc«
we find no eaie Mistng in England fn which
thlt right hM been austained on anj other
ground than tenure, which Ii a eoBclnafre res-
ton ftgainst the application of tha rule to tnj
MM in this country, wb«re do suoh t«nure
axitta, or can exiat, aa in English manon.
The plaintifFa have considered the grant of a
farr; aa analogout to that of a fair or market,
and have relied on cawea in which damages have
b«en recovered for ei«cting rival fairs or mar-
is?*] kets; but these 'cases admit of the same
answer aa those of ferries by prescriptjon with-
in manont; they grow out of feudal tenures,
aT« founded on feudal rights, and are wholly
unknown in this country, either by grant or
preecription.
Markets and fairs, however, differ from other
franchiaea; the grant or prescription extends,
ex vi termini, to seven mUes or the dicta. Y.
N. B. 1S4, n; 3 Bl. Com. 2101 2 Saund. 171,
172. The word "near" refers to the dieta in
case of a rival fair or market; and to the ville
in case of a ferry; if it is beyond, no action
lies. 3 Bl. Com. 219. In eases where the
Action Is sustained, it is not on the right of
property; it must be an aetion on the case for
eonsequential damages, arising from an unlaw-
ful act which injures another; if the set is law-
ful, no action liea; oae may erect a mill near
the ancient mill of another, because he Is ttot
bound to keep it in repair (22 H. VI. 14), ua-
leas a special custom is alleged and found, as in
S Vent. 2B1, 292.
Any man may keep a ferry for bia own u»a,
between his own landings within the Umita of a
without license, he usurper a public franohise,
and is finable on a presentment, or quo war-
ranto (Uarg. L. T. 73) : he is not bound to keep
up hia boats, and aa he does not share the bur-
dens, he shall not have the benefit of the fran-
ctiiee (3 Bl. Com. 219) ; and the act being illegal
wben done "without lawful authority or war-
rant," it is a nDisance^ and ease lies for dam-
ages consequent upon it (1 Mod. 09; 2 Saund-
172, 174; Bull. N. P. 76); but tb« action does
not lie it the act, though unlawful, was not an
interferenee with the right of the other, and
within the limits of hia prescription. Harg. 47.
The king alone can prosecute for a purtireitnre
" ■ "" nola '
D usurpation on the jua poblieum
if it is outside the limits of an ancient fen;, a
grant of the franchise If fairly made, gives a
•oniplete right of the enjoyment of tbe franchise
which none can diatorb (Wills. S08), bacaute
Bone but the king can interfere.
There is no case where the grant of a new
ferry or otber franchise hoa been held void on
the sole ground of its interfering with the prof-
Its of an old one. Chapman v. Flaxmann was
OD a special custom laid and found, thnt all tha
liibabitaots of the manor, which belonged to
and erected a mill to the plaintiff's injury, who
raoovered damages on the ground of the custom.
C VenL 2»1, 2D2. In Butter's ease, tha suit was
to repaal ft pataat fw a markat tX CL, radt-
t Ii. «>d.
faia that there was an andent market witbtii
half a mile, and that the patent was obtained
on an ad quod damnum, exeouted by surprise,
and without notice, to tha great damage of the
former market, all of whieh was admitted by a
demurrer, and the patent was repealed. 2 Vent.
344; 3 Lev. 220, 223. The suit was by the
king, at tbe relation of the inhabitants of Roch-
ester, and tbe patent avoided on the ground
that tht king has an undoubted ^right [*lSi
to repeal a patent wherein he is deoefved, or hia
subjects prejudiced," that it waa jure reglo by
the common law (3 Lev. 221, 222] ; but it Is not
asserted in any part of the case that the patent
iraa repealable on the ground of the right of
the relatoia to an exclusive market, or that
they had any remedy otherwise than at tha
suit of the king.
In the report of the case. In Larins, It ap-
pears that the city of Rochester was held of
the king by a fee-farm rent of twelve pound
per anniitn, the effect of which was to make the
citiiena thereof the fee- farm tenants of the
king; as such they were privileged suitors, and
entitled to redress wben other tenants are not,
which will explain the cases dted from
EardreSB, dedded in tho Exchequer on bills ia
equity, to suppress rival ferries, mills, and mar-
kets.
In Churchman v. Tunstall, the plaintiff was
the farmer of a common ferry time out of mind
at a, fee-farm rent; the defendant owned the
land on both sides of the Thames, and set up a
ferry within three fourths of a mile of plain-
tiff's ferry to hia prejudice. The court dis-
missed tha bill, "because it came too near a
monopoly and restrained trade, and because no
precedent was shovni in point. The case of a
beam that had been urged, was of a beam la
the king's own manor." Hard. 162, 163.
In Green v. Robinson and Wood, tbere wsis a
custom in a manor held by the king in fee-
farm, that ail the tenants and residents thereof
should grind at the lord's mill and not else-
where; the defendant had erected another mill
outside of the manor, near the old mill, by rea-
son whereof many of the tenants left the lord's
mill to his great prejudice; the bill was for the
demolishing tbe new mi'A. The court (Hale,
Athyss, Turner), said that It was lawful for
any tenant to set up a mill upon bis own
ground out of the manor, but not within the
manor; they would prohibit bim from persuad-
ing the tenants to grind at his mill, or fetching
gnat out of the manor thereto, but could not
decree tbe mill to be destroyed, unless erected
within the king's manor, to the prejudice of his
mill. No pre<»dentB were shown, and the bill
waa dismissed, but without prejudice to the
right of tha lord of the manor. Hard. 174, ITS.
In White and Snook r. Porter, one of tha
plaintiffs was a copyhold tenant fdr life, the
other a purchaser of tbe inheritance of land In
tha king's manor held under a fee-farm rent,
who filed their bill for the suppression of a
rival mill erected within tbe manor. It waa
decreed that the defendant should not take
away or vrithdraw any grist from the old mill;
but his mill was not decreed to be demolished,
for that can be done in tbe king's own case
only, or in tbe case of hit patentM, who is en-
titled to the privilege of this court (of Bx-
-"- ' "And tt was alao haU !■ this easa
Btutwm vanmanomAL vmrn
thftt to compel tSi tin tra»iita wlttita thi Mii^i
tion. But it will extend to t, fae-/»rm, becauu
it i* for the king's mdvutage. And that tho
IBS*] GUBtom *in this ck«e doet not go to the
Mtate, but to the thing itself, Mid runs »long
with the mill into whose hands soeTcr it «omea,
that the suit here muat be aa debtor Mid ao-
eountant only, because the copyholder for life
is not liable to the fee-farm. And If two join
M thev do here, when one of them is, and the
otbor is not, lisble to the fee-fann, that I* ir-
regular unless that other b« a privileged per-
•on." Hard. 177, 178.
In the Mayor, etc., t. Skelton, the bill waa
for demolishing a mil! near to ■ manor of the
Idn^a, which was griinted to the plaintiffs in
fee-farm, whose roiH waa prejudiced by the one
erected by the defendant. A search was di-
rected to be made for precedents, but none
could be found, and the court held, that a mill
not within the lung'a manor, could not be de-
molished where there was no tenure nor cus-
tom, whereby the inhabitants are bound to
grind at the kin^s mill. Hard. ie4, ISG.
Two cases which involve the same prindpla
are reported by Lord Hale, in his Treatise do
Portibus Maris: The Town of New Caatlo oa
Tvne V. The Prior of Tinmouth, and Tho City
of Bristol *. Morgsn et al. Both ptaoea were
within the king's mnnors and were Mid by fee-
farm rent, the plaintitTs were therefore privi-
leged suitors, and having made out their case,
they obtained decrees for the demolishing the
ercctiops coinplaiced of, which were within the
town and city, among which there waa a ferry,
upon which Lord Hale remarks: "^pon these
records theie things are to be noted aid eolleet-
ed, vis.:
1. "In fact these places (tn which tho erec-
ttoas were demolished) were within the respect-
ive ports of Bristol and New Caatle, and be-
tween the port town and the sea.
Z. "That an erection of houses, (w place* of
receipt for mariners, contiguous to. or near to
the water of that port, between tbe port and
the sea, ia an injury to the port town, a fore-
stalling of it, and a prejudice to the customs.
3. "That it may, therefore, be demolished
by decree or judgment. But if it had not these
circumstances it had been otherwise.
1. "II it had been built contiguoua to the
port toim, it should not have been demolished;
and upon that account the buildings below the
town do continue, and are not wiUiln the rea'
sons of these judgments.
2. "If it had been bnllt above the port, It
should not have been subject to auch a judg-
ment, for it is in that case no forestall between
the port and the sea, and so no nuisance to the
port town as a port town.
3. Tf the building had been out of the ex-
tent of the port, as if it had been built three or
four miles below the hill, it bad not been with-
la the reason of either of theae judgments, nor
might it have been demolished, tor it could not
be a nuisance to the port." Harg. L. T. 79, 83.
In these and all other cases where rival fer-
ISO'l rlea have been suppressed *by decrees
!■ the Court of Exchequer, they are suits by
the king or Ua fee-fm tenants, who by being
»»0
hia debtor* and aeeonntenta, are onHtM to the
same privileges of persoiial prerogative aa the
king nimsetf, and may sue in the Bxcheqner
as privileged penons. But no decree for a
suppression will be rendered in any case, na-
' ss the erection ia within the king's maaor.
td no restraint will be put upon the rival mill
' ferry. If there Is no tenure, custom, or pre-
ription, which gives an exclusive right to the
ftlntlff, to compel the tenants of the manor to
«ort to hia mill, etc.
It has been contended by the pUintlffa that
le case in Hard. 18S, was overruled, and •
-jntrary principle established afterwards, for
which a reference is made to the argument of
the Attorney -General in 2 Anst. BOS, and the
opinion of the Chief Baron in p. 418; bat ea
a close examination of the easee, there will be
found no discrepancy between the first and
second decisions of the case of Churchman v.
Tunslall. As reported In Hard. 162, the plala-
tiS sued In the Excheouer aa "a farmer al a
common terry at Brvntord, in Middteaei, at a
fee-farm rent; the ferry was a common ferry,
time out of mind, and he laid in hi« biU that
no other person ought to erect any other ferry,
to the prejudice of bis, etc." He did not lay
tbe terry to be within the king's manor, or
allege himself to be a fee-farm tenant of tbe
self of the personal prerocative of the king.
The ferry was also laid to be a common ferry.
In the cnse afterwards brought, the plaintiff
suod "as Icnnnt of an ancient ferry under the
crown" tAnst. 608), on whi^h the Cbicf Baron,
in referring to the decisions of Lord Hale, re-
marks: "But the cases cited, and t1»>se which
Lord Hale lias given us in his Treatise d«
Poriibus Maris, clearly prove that where the
king claims and proves a right to the idl,
where a perprefiture and nuisance have been
committed, be may have a decree to abate it.'
Anst. 610, Attorney -General v. Richards.
This remark reconciles all the eases which
have been referred to, showing that where the
Court of Exohequer interferes to suppiesa any
rival erection as a nuisance, it is where the
locus bi qiw la the property of the crown, and
the suit is brought by him or hie tcnanta who
aue in Us right. Buch was the case in Ans-
tnitheri the nuisance complained of waa "the
erection of a wharf in Portninoutb harbor,
which prevented vessela from sailing over the
spot, or mooring there," etc.; it hss abatod on
tne ground of tne property bein^ in the king,
and the erection being to the injury of the
public. In auch cases, the Court of Exchequer
act* on an information by the Attorney-Ccn-
eral, or at tbe suit of the king'a patentee, or
fee-farm tenant; but this is a proceeding peen-
liar to that court. A court of equity never
grant* an InJnnetioB againat a public nuisance
without a previous trial by jury, as it would, h
eifect, be tantamount to the conviction of a
public olTcnse. Har» L. T. SBj 18 T. 21T, 21»i
IB V. 817,620; 2 J. 0.281.
■Where a patent Is repealed fa ehaa- [■■•I
eery on a scire facias. It U at the mlt of tht
king, on the crnund Ihnt he was deeeired. and
his lubjpcti (hcrrby injured; but ttvo k M
case whvi'i' II court ui' clianccry haa ever dt-
crced the |>ri>ilrut i(;u of a mill, of a fcrry. or
Batd«;u
Tn Chahlu Bivn BiiME <
Tmb WAum 1
m
otber er«etioD, on tbe sole ground of it> dimtn-
Iriiing the proflta of an •ncienl one, or the want
of power tn the king to grsnt ■ eoncuirenl
franchise at any place not within (he limiti of
one held by grant, cuatoiii, or preacriptioi
Tnking, then, the cases relied on by the.
tiff*, ai thrv are reported In the books, the^
nut onlj fail to support their jMsition, but di-
reetlj overthrow it. The principles eitabliahed,
are equally Talal to their right to reoorer dam-
ages for the conaequentlal injury by an action
on the case, or to suppress any riT»l (erry by
an B«9Lze of nuisance at law, or a bill for an
injunction or suppression In equity. They
must, in either case show In themseWes a
tight of property or pOBaeesJon in the place
where a rival ferry li established, or a special
custom, compelling the inhabitants of Boston
and Cliarlestown to croaa at their ferry, or they
can have no standing in any court, even if
they vere privileged suitors in virtue of the
personal prerogative of the king, aa tha fee-
farm tenants of a ro^al manor. As the plain-
tifls do not sue in this, or any anatogoua char-
acter, by special privilege, it ia unneeessary
to ahow that they cannot be relieved in tha
character in which they sue, on any principle
laid down in the case from Levinz, or those
cited from Hardress and Anstruther. An expla-
nation of these cases was necessary, because
they hsve been pressed with confidence aa It
point to the present, and for another reaaon.
when explained, they show that to bring the
plaintiffs case within them, It is requisite that
they sue by the highest and most odious pre-
rogative of the crown; that which is personal
to the king for his private advantage. In his
demesne lands. It waa also proper aa an argu-
mentum ad homlnem, to those who feel any
•CDsibility \fi adopting the royal or prerogative
rule of construing publie grants so as to impair
the public interest, by no constructive exten-
' I of them, to any public property
tion, it will not be difficult to ascertain which
kind of royal prerogative ia moat congenial to
our republican institutions; that which Is per-
eonal within a royal manor, and enjoyed for
private profit, or that which is a trust for the
whole kingdom, and for the benefit of all its
subjects; and whether the majority '" "' —
ciple of the
adopted in Massachusetts as the law of the
colony in lUO, when the grant was made.
The casa of Chadwicke v. The Haverhill
Bridge has been pressed aa evidence of the law
of Massachusetts, not aa the declaion of any
eonrt, but aa expressing the opinion of one emi-
nent lawyer who brought the action, and of
another who decided it aa aa arbitrator.
n alluded to I cannot, aa a judge.
■ponaibtllty. There can be but few .. ..
which the mere opinion of counsel ought to be
taken as authority in any court; but In this
court, testing the Taliditv of a State law by the
nilM which are imperative npon us, I feel for-
bidden to deftr nj MtU«d opinioa «■ tha law
* Ii. «d.
of the case to that of any individual, howenr
There la no taak more difllenit or invidioua,
than to decide who were those eminent and dis-
thiguished members of the profession in former
times, or who now are, to whose opinions a
court of the last resort ought to pay judicial
deference^ and who were and are not deserving
of such distlngDlehed notice. Judges would in-
cur great hazard in making the selection, aad
would fotm their opinions by very fallible
standarda, if they look beyond the State law on
whivh the ease arises, the provision of the Coa-
stitutlon which applies to It, and the appro-
priate rules and principlea wUdi have been aa-
tablished by judicial authority. It is a risk
which I wilt not incur, on any question involv-
ing the constitutionality of a State lawi (or
if the case shall ba so doubtful that any mao'a
opinions either way, which are not strictly ju-
dicial and authoritative, would turn the acaU,
I would overlook them, and decide according to
the settled rule of this court, that in every case
the presumption la that a State law la valldC
and whoever alleges the contrary, is bound to
show and prove it clearly. In oliedience to this
rule, I cannot recognize in any private opinions
of any daacriptioD, by whomsoever, or nowso-
ever expreased or promulgated, any authority
for rebutting such presumption. No more salu-
tary rule was ever laid down by this court, or
impressed on its members in plainer language,
than wliat is used by the late Chief Juatice in
the cases cited; nor can there be any rule in
favor of the moat strict observance of which,
there can be any reasons which operate with
such a weight of obligation on the court as this
TliOTe is no eourt in any country which ia In-
vested with such high powers as this; the Con-
stitution has made it the tribunal of the last
reaort, for the decision of all cases in law or
equity arising under IL The twenty-fifth see-
tion of the Judiciary Act has made it our duty
to take cognizance of writs of error from State
courts, in cases of the most important and deli-
cate nature. They are those only in which the
highest court of a State has adjudged a State
law to be valid, notwithstanding its alleged re-
pugnance to the Constitution, a law, or a trea-
ty of the United SUtaa.
When this court reverses the judgment, they
overrule both the legislative and Judicial au-
thority of the State, without regiard to tiM
character or standing, political or judicial, ol
the individual memlwrv of either department;
surely, then, it Is our most solemn duty, not to
found our judgment on the opinions of thoaa
who assume to decide on the validity of State
laws, without any ofBcial power, sanction, or
responsibility. If we defer to political author-
ity, there can be none 'higher than the [*ISS
three branches of the legislative power; if to
judicial authority, the highest is the solemn
judgment of the members of that oaurt, in
which is vested tha supreme juiUclal power of
the State.
There ia another ttill falser consideration,
which ariaea from the effect of a final judgment
of this court under the twenty-fifth section;
it Is irreversible. It la capable of no correction
~ modification, save by an amendment to the
most ba anforced b7 the exec
•»1
Bauiwu's CoRBTinJTioiiAt. Vonra.
utiv« power of tbe Union, uid tlie State muit
HUbnit to the proitr>tioQ of iti Uw, ^nd Jta
conaequenceB, however severe tbe operation may
be. That the ease oustit to be clear of —
rnnwrnhle doiiht in the mind of the «
ritbar aa to the law, or fta application,
propusition Belf-evidentj and there are no caies
to which the rule applies with more force than
to tbose which turn on the obligation of cod'
tracta.
If we ■teadil]' adhere to It aa a fundamental
rule that the judgment of the Supreme Court of
a Btate on the validity of iti atatutei shall
ttand afnrmed, until It ii proved to be i
raneouB, the effect would be tnoet Important
eonatitutlonat queitions, and lead to a course
profegaional and judicial opinion which would
rbe plaintiff! have also relied on the oplnii
of the late learned chancellor of New York
(in 4 J. C. IBO; and 6 J. C. Ill, 112), in which
he puts the case of a rival f^rry aet up so near
an old one as to diminish its profits, and refers
to the rule laid down in F. N. B. 1&4-, Bro.
Abr. Action tni the ease pi. S7 tit. Nuisance,
pi. 18, 2 R. A. 140; 3 Bl. Com. 219; 2 Saund.
172; and which is taken from the 22 H. VI.
14, IB. In putting this case aa an tlluBtratlon
of thoxe then before him, this great jurist stat-
ed the proposition in geueral terms merely,
without ihat precision which he adopts aa tc
the points directly presented, and he has de-
duced a rule much broader than the cases war-
ranto, when closely examined. For the punMset
of tbe eases then under consideration, the broad
rule laid down might well be applied to the
grants contained in the laws of the State on
wliich the cases turned, as a aafe guide to their
construction. But when a question dependa on
the law, aa established by the adjudged casca
and old writers of standard and adopted au-
thority, we must take it from the books them-
selves. Having already reviewed the cases in
detail from the 22 H. VI. and sUted my coo-
elusions from them, I submit their correctness,
without further remarking upon the rules pre-
scribed, In relation to the extent of tbe rights
I would have remained satisfied with what
baa been already said, if there had not been
these expressions in tbe opinion in 4 J. C. ISO,
Ifll. "It would be like granting an exclusivs
right of ferriage between two given points, and
then setting up a rival ferry within a few rods
of those very points, and within the same
course and line of travel. The common law
contained principles applicable to this very
lt4*] 'case, dictated by a sounder judgment,
and a more enlightened morality."
Aftar a vsferenoe to the rule laid down from
the books which are cited, the opinion pro-
ceeds: "The same rule applies, in its spirit and
substance, to all exclusive grants and monopo-
lies. The grant must be so construed as to give
it due effect, b; excluding all contiguous and
Injurious competition." As these propositions
are supported by an authority which cannot be
too highly respected, and Is difficult to oppose
with success, T feel bound to support the nega-
tion of them, by a reference to cases and books
which would have been deen
but for tUa opiaioii.
In Harg. L. T. 8S, It kaa been seen tbat Lori
Hal* naea tbe word "contiguous" to a pert
town, in contradistinction to within tt, ud
moat distinctly negatives the idea that a ccb-
tiguous ferry or other erecMon would be demol-
ished, however injurious it might be. In hii
opinions as Chief Baron of the Exchequer, ia
the cases cited, he decided upon the same pria*
ciple. The authority of his Treatise de Portt*
bus Maris is universally admitted aa the belt
evidence of the taw as it was understood in his
time, in which he says, "It is part of the jna
regale to erect public ports; so in special man-
nar are the ports and the franchises thereof."
Harg. L. T. 68, S4. "A port hath a vlUe, or
city, or borough," quays, wharves, enne^
warehouses and other privileges and frsnrhisw
Harg. 46, 77. "If a man hath portum msriSi
be prescription or custom. It is as a manor; ba
hath not only the franchise but the very watar
and BOil within the port." Harg. S3. "Swaj
port Is a franchise, or liberty, as a market or a
fair, and much more." It has of necMsity B
market, and tolls incident; It cannot be ereotsd
without a charter or prescription (Harg. 10^
fil) ; or if it is Teatrained, it cannot be extended
or enlarged in any other way. lb. 52. Where tt
is by a custom or prescription, the considera-
tion is the interest of the soil both of the shore
and town, and of the haven wherein the ships
ride, and the consequent Interest of the fran-
chise or liberty, which constitute the port In a
legal signification; which are acquiraole by a
subject by prescription without any formality
(lb. G4), and In ordinsrj usage and presump-
tion they go together. lb. 33. The extent ot
the port depends on the preacHption or ueage;
the court cannot take notice of its extent, fur-
ther thnn the ville or town at its head that
gives it its denomination; if any further exten-
sion is alleged it is ascertained by the venire
facias de vicineto portus. Ih. 47, TO. The dif-
ference between a port by charter, and by cw-
tom or prescription, is thus illustrated:
"If the king at this day grant portum maris
de B., the king having the port in point of in-
terest as well as in point of franchise, it may
be doubtful whether at this day it carries tbe
sot] or only the franchise, because it is not to
be taken by implication." "But surely if it
were an ancient grant, and usage bsj gone
along with it that the grantor had also the soil,
this grant might be effectual to pass both, for
both are included in it. Harg. 33; S. P. Cowp.
100.
made beyond legal memory, and In t«nns so
general and obscure, as not to be any record
pleadable, but ought to have the aid of eon*
other matter of record within time of memory,
or some act of allowance or of confirmation;
they shall now be allowed only to the extent of
such allowance or confirmation, and ahall ba
construed according to the law when it waa
made, and the ancient allowance on reoord [>
Co. 2B, a), or prescription will be taken aa evi-
denoe of the existence of a grant, and to sup-
ply its presumed loss by the lapse of time (1
Bl. Com. !74; 2 BI. Com. 265); thougb tbe
record Is not produced, or proof addnoed tt
its being lost, a jury will presume the grant
(Cowp. 110, 111): but if the grant is witbia
time of memory, and wants no allowance, e«n-
BnldwU-
Tom Cbahjes Bnn Bunot v. Tbm Wubkr ftiirm
iiBation, or preattinptioii, ta ^Te It effect, it '
!■ pleadable without showing either. B Co.
28. Thii li caU«l a grant at the present day;
an ancient grant ia by prescrrptioa. When a
Krant of the franchise of a port lij prescrip-
tloa, or an ancient ^rant of an ancient port, it
thua made out, it importa the incident fran-
chisea of tnarliete, fain, ferriei, quays, wharves,
landing, etc, and the toll for each; and the
franchise is supposed to have been founded on
the right of soil in fee-simple, for no prescrip-
tion can b« founded on any less estate. 1 Bl.
Com. 260. As tenant in fee of soil and fran-
chise to the extent of the port, no right of
property can be of • higher grade, or be enti-
tiled to a higher degree of protection by the
law; the fee of the soil is a greater right than
* mere liberty or franchise in or over it] the
prinripsl franchise of a port is higher and more
unportant than any of the incidental franchises.
Whrn (ince eittablished, the king cannot resume
them, narrow, or confine their limits (1 BI.
Com. Z64], for the crown hath not the power
of doing wrong, but merely of preventing
wrong from being done. 1 Bl. Com, 164. But
however high and sacred these ancient grants
of toil and franchise are, they are not protect-
ed from grants by the Icin^, which may dimin.
iah their proflts by injuriou* and contiguous
competition: the contrary doctrine is laid down
br Lord Hale, and there cannot be found in
the common law, a case or dictum to the oon-
"If A hath a port In B, and the klnz Is
ftleased to erect a new port hard by that, which
t may be is more convenient for merchants,
though it be a dama^ to the first port, so that
tbere be no obstruction of the water, or other,
wise, but that sliips ma^, if they will, arrive at
the former port, this, it eeeme, may be done.
But then this new port must not be erected
within the precincts of the former;" "^e may
erect a concurrent port, though near another,
■o it be not within the proper limits of the for-
mer, at shall be shown #i the case of Hull and
Yarmouth, hereafter." Harg. SO, 61 to 66, 71.
"But it cannoL be erected within the pecul-
iar limits by charter or prescription, belonging
to the former port, because that is part of the
interest of the lord of the former port. Nei-
ther can the first port be obstructed, or wholly
defaced, or azluded for arrival of ships, but
1S6*] *by act of Parliament, or the consent
of the owners of the ancient port." lb. SO, fll.
"If a subject, or the king's fee-farmer has a
fort at B, by prescription or charter, and the
lug grants that no ships shall arrive within
Bve miles, be cannot, within that precinct,
erect, de novo, a port to the prejudice of the
former, though he might have done it without
this restrictive clause; but by this inhibition,
this precinct is become, aa it were, parcel of the
precinct of the port." lb. 61; S. P. 66, 67.
Both of the ferries of Yarmouth and Hull
Were held under the crown, at a fee-farm
rent. lb. 01, 08. So that they united the high-
est rights of property with all the privileges
which devolved on them, in virtue of the per-
•onal prerogative of the king, and by the force
of hla grant. Tet neither availed thetn to
prevent injurious and contiguous oompetl-
(lam, by the erection of a concurrent and rival
port. lb. 70. If the king own the port, ha
• It. ad.
may license the erection of a new wharf,
"whereof there are a thousand instancca." Hi.
8fi. The king's tenants cannot set u;i u pji\.
lb. 61, 73. A subject who claims a port by
prescription, must own the ahores of the creek
or haven, and the soil; "but be hath not there-
by the franchise of a port, neither can he to
use or employ it, unless he hath had that lib-
erty time out of mind, or by the king's char-
ter;" "he cannot take toll or anchorsge there,
for that is finable by presentment, or quo war-
ranto." lb. 54. 73.
In these unquestioned principles of law, we
find its rules which define the nature and ex-
tent of all franchises on the shorts or waters of
public rivers, havens, or arras of the sea, which
can be enjoyed by an individual or a corpora-
tion. If it is by prescription, or an ancient
grant, it is founded on an existing right of
property in fee, the cons id its I ion for thp pre-
sumed grant of toll is for pussinfc over or using
private property, and the franchise is of a toll
traverse, which from its nature is exclusive to
the extent of the private ownership, which is
defined by the possession and usage, which
constitute the title by prescription. If the
right of property is prescriptive, but the fran.
chise is granted by a charter within legal mem-
ory, ivhich is in existence, is p^eadaOlt, and is
or can be produced, then, as nothing passes by
implication, the court, ex ofticiii, can look only
to the charter for the extent of the Franchise;
if it is alleged that it has had a greater extent
by usage, an inquest goes to ascertain the fact.
In this case, too, the franchise being a toll
traverse, the jury ma; find it to the extent of
the usage under the charter, and the right of
property by prescription, so far as they unite.
But when there is no existing right of property
except that which is the jus publicum, a. grant
of toil for its use, or psEsagu over it to any
subject, is the franchise of toll thorough, or toll
on a public highway, which is void whether by
prescription or the king's charter, unless for
good consideration or reasonable recompense,
which tnust be made to appear to have existed
at the time of the grant, end to have bpen con-
tinued BO long as toll is exacted. In such case
the 'franchise is never extended by any (*16T
implication or construction, but is confined to
the precise place where the consideration ex-
ists; and so far from the usage of exacting toll
at any other spot being evidence of a right, It
is finable on indictment or qua warranto. The
customs of London to the contrary, though by
their confirmation by Magna Charta they have
the force of acts of Parliament, are illegal and
void, as usurpations on the public right, and
injurious to the people at large; and even the
king's fee-farm tenants in his own manors are
not exempted from the rule. An evident con.
sequence of these principles is that the king
may grant a concurrent franchise, contiguous,
or near to the place where a former one exiata,
either by charter or prescription, if it is not
within its precise limits. ^Iienever he shall
deem it necessary for the public good, it is his
right by prerogative, his power is discretionary,
which the law will not control, unless it is to
exercised aa to prejudice the right of properly
existing previously. So Ions as its poesesfll i
and use is left to the proprietor, the law doe*
not notice the mere diminution of profits of an
• SI
m
BAIAWIU'I ConSTtTDTtORAI. VUEWS.
•siatlllg fnnchiH OB a public river, or ftn arm
•f the aet, by the erection of h rival franrhise
bcjond its limits; the competition U beneflciat
to the public by the increased acconi mod alio d
Kforded, and ft diminution of tall exacted.
In daoldlng on prerogative or legislative
granl*, the court can look only to the power
and right by which they ate made; queitiona of
policy, expediency, or discretion, are not judi-
cial ones; if necessity or public good brines a
SDwer into action, the court cannot judge Oi its
Egree or extent. 4 Wh. 413. It 'Srould be
to pass the line which circumicribei the judicial
deportment, and to tread on legislative ground.
Thia court disctalms all preteniiona to such a
power." lb. 423. The «am« rule applies to all
officers or tribunals in whom a diaerctlonary
power is vested by lew, without *ay ftppeal or
supervisory power in any other tribunal being
provided; their acts done in tbe exercise of an
honest and sound discretion, can be invalidated
only by fraud in the party who claims under
them, or an abuse or excess of authority in the
depository of the power. 6 Pet. 72B; 1 Cr.
170, 171; 2 Pet. 412; 4 Pet. 663; 2 Pet. 167;
20 J. R. 739, 740; 2 Dan. P. C. G2I, etc.; 10
Pet. 477, 478.
That the power of the icing over navigable
rivers and arms of the sea is plenary, ia un-
doubted; the power is vested in him for the
Kbiie good, and it is bis duty to so exercise it;
may malte an exclusive grant of a franchise,
or may malcc concurrent grant* at his discre-
tion, subject to tbe qualiflcations stated. He
may ^ant a monopoly on proper consideration,
but his grant of a franchise is not t,a exclusive
one per se; it must be so in terms, or It is lim-
ited to the precise place and object; and the
king is at liberty to make concurrent granta at
his pleasure. The power of the kin^ is thus
declared by Lord Thurlow: "The king may,
if he pleases, grant licenses ta twenty new
Elayhouses, and may give liberty to erect them
1 Covent Garden and Drury Lane, close to
1C8*] those wtiich are eBtablishcd" *(1 Ves.
Jun. 114) ; but lie adds, "but would It be ri^ht
to do BO." Thia is matter of discretion, which
is referred to the Chancellor as the keeper of
the king's conscience, who, after hearing the
ease, advises the granting or refusing the pat-
ent as he may think just, as may be seen in
the ease Ex-parte O'Reilly, 1 Tea. Jun. 113, 130.
The ancient mode on an application for a grant,
waa to sue out a writ of ad quod damnum, on
which an inquest was held, and on the return
of the inquisition the grant was made or de-
nied; but It may be dispensed with by a clause
of non obaUnte in the patent. F. N. B. 226.
The grant is therefore valid without the writ,
but Is voidable by the king on a scire facias, if
It ii injurious to another on the ground of the
king having l>een deceived. 3 Lev. 222. But
the grant could not be annulled in a collateral
action between A and B, otherwise there would
be DO necessity of resorting to chancery, to re-
Sal it by a scire facias at the suit of the king;
la is always issued on tbe application of a
party by petition, setting forth tbe injury li«
nutalna by the grant.
It only remaina to apply the foregoing prtn-
etples to the ease of an ancient ferry in a ville,
aa a Ust of tbe right* of the owner by the com-
mon law. Such a ferry la by preacriptioD ; the
franehiaa I* founded on the property fel Hm
landings, it can rest on no other r^>fatt ttt
right of property i* in tbe lord of tbe fee, ud
the francnise ia in him as a toll traverse, to the
extent of the local custom or prescription, bat
no further, even in the king's manor*, or u
favor of his fee-farm tenants. The positioa in
the Year Book (22 H. VI.) goea no fkrther; bo
writer of authority has asserted that the owner
of such a ferr^ has any right beyond the rille,
or manor, which is the line and boundary of
the right of soil, and no adjudged caae has
sanctioned such doctrine. There ie no eaee oi
ancient ferry is more protected againat injuti-
oua and contiguoua competition, than the high-
er franchise of a port; the doctrine of L^id
Hale, and the caaes in Hard. 163, etc., ars to the
point, that contiguous competition, by the
diminution of the prollts of an ancient f«rry, ia
a damnum al>8que injurie. Nor in th« whole
body of the law ia there expressed a doubt that
the king ma^ grant a concurrent fraocliisc of
any description, which does not extent within
the limits of an exieting one. Let theae piia-
ciplcs be applied to the present case.
Charles River is an arm of the an, th« colony
owned a ferry over it, together with the luid-
ing-placea, till 1640, and neld possession of it
by their tenants; the soil of the adjacent ahoici
of the river was owned by the colony, or its
grantees; the rights of riparian owners extend-
ed to low water-mark, or one hundred rods oa
the flats, on each aide. All pretense, therefoK,
of any right in the college oy preacription, or
the presumption of an ancient grant which bad
been lost, la wholly out of the question; tbe
grant made in 1640 *i* "a grant made [*16t
at thia day;" it ia pleadable. It ia produced
from the record, and the court can aotioe it ei
officio.
It is the. grant of a ferry on a public fair-
way; the franchise i* of a toll thorough, the
very nature whereof precludes any extension of
it by implication or conatruction, beyond its
precise limits, and the very spots at which the
consideration for the grant exiata; any exac-
tion of toll at any other points, ia the usurpa-
tion of a franchise, which, so far from givis^
a right, subjects the grantee to a fine.
Taking the common law to have been, fni^
its first settlement, the law of Hassacliusetta,
its oldest and best settled rules arc, ia ay
mind, conclusive against the pretensions of the
plaintiffs, in virtue of the ferry grant. That
they ought to be applied in their utmost striet-
ness, against any conatruction of colonial
grants which tend to create monopolies by im-
plication, is, I think, tbe policy and spirit of all
our institutions, and called for by every consid-
eration of public interest. The proposltitu that
a grant within legal memory, of toll thorough
on an arm of the sea, over a public hi^WBy,af
a ferry which had been occupied by the pnblie
at deflned and described landing*, would make
tt unlawful for the king to grant a coDCUrrtat
ferry, at other landinoa, would ahock the sease
of tbe profeasion in England, as aubveraive at
the law. Sucb a propoaition, as to the grant •(
such a franchise in tnese States, viuld be still
more monstrous; because. If austained, it wo«M
not only subvert its eonuwn and statnte law.
Poout rr u.. v.
bat, b; infasing such a grant into the Conitlta-
tfon, all legislatire diitretlon would be ftnnihl-
Uled forever, and a monupolj created b; iu-
plieation and mere oonHtruetion, which no pow-
er in the State or federal gDnniiDent oould
I have confined mj opinion hi thia eaae to
the grant of the ferry by the eolony, tbinking
it imporlBDt that the prineiplea wbieh apply to
anch grant!, ahoiild be man folly apl^ned
than t^ey had been. Aa to thct grant* to tba
plaintiffs by the aeU of the Legislature, in
1786, and 179Z, I can have nothing to add; the
view taken by tlie court in tbelr opinion ii, to
my mind, moat lucid and iwncltuive; aupported
■FOOLB «t a] v. FLEECER et §i.
(Ante, 11 Pet. 1SG.>
SO far ai mj general views of the origin and
nature of the federal Constitution and gov-
ernment may be peculiar, that peculiarity will
be carried of course into my opinion* on con-
fltilutionat questions. There are none which
can arise, in which it Is more important to at-
tend carefully to the reasons of une's judgment,
than in those where the prohibitions on the
States come under consideration; those which
have arisen have been found the most difficult
to settle, because they involve not only the
4]ueation of the powers granted to Congress, and
those reserved to the States, but on account of
the nature and variety of the prohit)itiDns and
exceptions. In the case of Briscoe v. The Bank
ot Kentucky (ante, HS. 117), I gave my views
of the three classes of prohibitions, in the flrst
clause of the tenth section of the first article
of the Constitution, which in their terms are
absolute, operating without any exception, to
annul all State power over the prohibited sub-
Tbe next elauee of the same section contains
prohibitions of a different kind. "No State
sball, without the consent of Congress, lay im-
posts or duties on imports or exports, except
what may be absolutely necessary for executiog
its inspection laws; and the net proceed* of all
duties and imposes, laid by any Btate on Im-
ports or exports, shall be for the use of the
Treasury of the United States, and all such
laws shall be subject to the revision and con-
trol of the Congress. No State shall, without
tlie consent of Congress, lay any duty of ton-
nage, keep troops or ships of war In time of
peace, enter into any agreement or compact
with another State or with a foreign power, or
engage in war, unless actually Invaded, or In
such imminent danger as will not admit of
delay-
It will be perceived that these prohibitions
apply to two distinct classes of case*; In those
embraced In the first sentence, it Is not only
riHIuisite that Congress should consent to State
Ibws laying duties and Imposts on imports and
exports, but they are made subject to its revis-
ion and control. In the second class, nothing
more is req^uired than the oonsent of Congrea*
to the specified acts or laws of a State, giving
no power whatever over them, after such con-
sent has been given. There I* also one par-
ticular in which compacts and agreements be-
tween on State and another, or with a foreign
power, stand on a peculiar footing; all tne
otb«r cases to which the prohibition applies,
Rinbrace those subject* on which there I* a
grant ot power to Congreaa t« leglalate, or
which have a bearing on those power*] a* to
Isy duties and imposts, regulate commerce, de-
clare war, etc. Wbereas the sate power of Con-
gress in relation to sueh agreements or oom-
Kcts, Is to assent or dissent, which Is the only
illation or restriction which the Constitution
has imposed, provided they are not treaties, al-
liances, or confederations, which are absolutely
prohibited by *tbe tint olauae of the [*17*b
section, and cannot b* validated by any conMUt
of Congress.
As the compact between Kentucky and Ten-
nessee does not come within thia probibitiMi,
and is one merely of boundary between the two
States, the subject matter la not within the Ju-
risdiction of Congtees any further than that it
is subject to ita oonsent, which, once given, tha
Constitution is functus ofHeio In relation to ita
controlling power over its term* or validity.
The effect of such consent is that thenceforth
the compact ha* the same force as U it had
been made between State* who are not confed-
erated, or between the United States and a for-
eign State, by a treaty of boundary: or as If
there had beni no restraining provision in the
Constitution. Its validity dues not depend oa
any recognition or admission in or by the Con-
stitution thst States may make such compact*
with the consent of Congress; the power exist-
ed in tbe States in the plentitude of their sov-
ereignty, by original inherent right; they Im-
posed a single restraint upon It, but did not
make any surrender of their right, or consent to
impair it to any greater extent. Like all other
powers not granted to the United State*, or
prohibited to the State* by the Conatltution, It
IS reserved to them, subject only to suck re-
atraints a* it imposes, leaving its exercise free
and unlimited In all other reepects, without any
auxiliary by any implied recognition or admis-
sion of the existence of the general power, coa-
^uent upon the particular limitation,
[erein consists the peculiarity of my reasons
for affirming the judgment of the Circuit Court
in this ease; fully concurring with the opinion
delivered, as to the original power of tbe
States to make compacts of boundary, as well
o the effect of the prohibition, being "a sin-
limitation or restriction" upon the power.
Vide 11 Pet. 809. I can give ft no other ef-
fect by implication, without Impairing the great
principle on which the reserved powen of the
State* rest. Tbou^ the result. In this caae,
would be the same, whether the right of mak-
ing compacts of boundaiy is original In the
S^tea, or exists by the admissions of the Con-
•tltutioB, it might have an important btariag
ITOb
Bauwdi'b ConBTmrnoiiAL Tnws.
on othar queitlont ftud e*B«s, depending on the
Mme ^ncMl prinefple, •« to the granting ftnd
restraiiiing power which established that ■"
■trument. If it is considered as the souro
the powers which are reserved to the Slates, it
necewarily adtoits that ita origin U from a
power paramount to theirs, and limits them to
the exercise of such as it recognises or tacitlj
admits, b; imposing limited restraints. This
is a principle which, once conceded, will destroy
all harmony between the State and federal gov-
ernments, by resorting to implication and oon-
■truction to ascertain their respective powers.
Instead of adopting the definite rule furnished
by the tenth amendment. That refers to the
Conatitution for the ascertainment of the spe-
cific powers granted to the United States, oi
prohibited to the States, as the certain and
fixed standard by which to measure them; and
then, by express declaration, reserves al'
other powers to the States, or the peopli
ITOc*] 'thereof. The grant in the one case, or
the prohibition in the other, must therefoie be
shown, or the given power remains with the
State, in its original plentitude, not only inde-
pendent of any power of the Constitution, but
paramount to it, as a portion of sovereignty at-
tached to the soil and territory, in its original
integrity.
By adhering to this rule, there is found a
marked line of separation between the powers
of the two governments, the metes and bounds of
which are visible; so tliat the portion of power
separnled from the State by its cession, can be
as easily defined as its ceasioD of a portio
at ita t^ritoiy by known boundaries, a refei
ence to which will bring every constitutional
question to an unerring test. I have therefore
considered those which have arisen in this case
as involving a general principle applicable to
all restrictioos on States. Though a narrower
view would sulBee to settle the questions pre
aented upon this compact, or any compact be-
tween the States of Uiis Union: yet, when wi
consider that the power of a State to moke an
agreement or compact, with a foreign power. Is
put on the same footing as one between two or
more States, the necessity of an adherence to
principle ia the more apparent.
It is a settled principle of this court that the
boundaries of the United States, as fised by the
Treaty of Peace in 17S3, were the boundaries
of the several StaUs (12 Wh. B34), from which
it follows that on a contest between a State
and a foreign power respecting the boundary
between them, the State has the same power
over the subject matter as if the contest was
with another State. It must then be ascer-
tained, what !■ the source of that power, its ex-
tent by original right, how far it is restricted
by the Constitution; and when a compact of
boundary is made with the consent of Congress,
whether their legislative power can be exercised
over it to an; extent. When this Is done, It
must then be inquired, how far the judicial
power has been extended over such compacts by
the Constitution, and in oontrovcrsies arising
under them, what are judicial questions on
which aourts can act, as distinguished from po-
litical questions, which must h« referred to the
parties to the compact.
In this view of the subject, I am dlsnoMd to
take broader gronnd than ia done in th* opin-
Constitutio:
loB of the court, and think It neeeaaorT' to •■■
dmine whether the powers of a State depend
in an; dgree on the recognition or admuaian
n the Constitution, as the oonstructiou pot
upon it by those who framed or adopted it.
This is a sound prineipte, when applied la
grants of ^wer by paramount authority, to ■
body subordinate to It, which can act onl; an-
der the authority of the grant; and fairly ap-
plies to the powers of the federal govemment,
which is a mere creature of the Conatitntioa.
Such is the established rule of this court, where
there is an express exception of a portia^ar
case, in which any given power shall not be
exercised, that it may be exercised in o
within the exception; otherwise the e;
would be useless, and the words of the Conati-
tution become unmeaning.
'But the principle is radically difi^er- [*tTl
' when it is applied to a provision of the
■•"■■" — , excepting a particular cane from
of State legislation, or containing
a prohibition that a State law shall not he
passed on any ^ven subject, or shall not have
the effect of doing what is prohibited; in »ati>
cases, there results no implication of power ia
other cases, for a most obvious reason. That
States do not derive their powers from the Con-
stitution, but by their own inherent reserved
right can act on all subjects which have not
been delegated to the federal government, or
prohibited to States- This distinotioti neceo-
sarily arises from the whole language of the
Constitution and amendments, and is expressly
recognized in the most solemn adjudicsti o&s of
this court. "The govemment, then, of the
United States, can claim no powera which ore
not granted to it by the Constitution; ajid the
powers, actually granted, must be such s^ are
expressly given, or given by necessary im id-
eation-" 1 Wh. 328, Martin v. Hunter. *"lie
powers retained by the States proceed from the
people of the several States, and remain, kfter
the adoption of the Constitution, what they
were before, except ao far as they ma; be
abridged by that instrument." 4 Wh. 193. So
where there is an exception to the exercise «f
the power of Congress, aa in the first clause oi
the ninth section of the first article of the
Constitution. "The migration or imports tioa
of such persons as any of the States, now exiit-
ihall think proper to admit, shall not be
prohibited by Congress prior to the j-ear 1808.
The whole object of the exception is to pia-
serve the power to those States which mi^t
be disposed to exercise it, and its laDguage
seems to convey this idea to the court un-
equivocally. It is an exception to the power to
regulate commerce, and manifests eleorlj the
intention to continue the pre-existing right of
the State to admit or exclude for a limited
period." 9 Wh. 206, 207, 216. So when ft Stat*
u prohibited from imposing duties on importa,
except what may be absolutely neceasary for
executing its inspection laws. "This tax ia an
exception to the prohibition on the States to lay
duties on Imports and exports. The exceptioa
was made because the tax would otherwiM
have been within the prohibition." IS WL
430. If It be a rule of interpretation ta whicl
all assent, that the exception of a p*rticiilar
thing, from general words proves that ta th*
opinion at tSa law giver, the thing excepted
Foout n Ai,. V
voold b« trithlB tlw general elaiue, bkd the ex-
ception not been mmde, we know no tokbod whj
tbu senenl mle should not be &■ ipplickble to
tb* Constitutkin ai other inctrumente." 12
Wh. 438. In applying tbiB rule to deeds, the
luigu&gB of this court ii strong and clear. "It
it observable that the granting part of this
deed begins b; exeeptiug, from its operation, all
the lots, etc., which are within the exception.
The words are, doth grant, etc., except as is
bereinafter excepted, all those hereafter msn-
tioned and described lots, etc. In order, there-
fore, to ascertain what is granted, we most
Int aaeertaJn what is within the exception; for
ITS*] whatever *ia included in the exception
is excluded from the grant, according to the
mmT'"! l*id down in Gi. Litt. 47, a: Si quia
rem dat et portem retinet ilia para quam re-
tinet semper cum eo eat et semper fult." 0
Pet. 310.
In a subeequent case, at the same term, the
same rule and maxim was adapted and applied
to a treaty with a foreign nation. "It becamo,
then, all -import ant, to ascertain wtiat was
granted by what was excepted. The King of
Spuin was the grantor, the treaty was his
deed, the exception was made by him, and its
nature and elTect depended on his intention, ex-
preesed by his words, in reference to the thing
simntcd, and the thing reserved and szoepted,
ID and by the grant." fi Pet. 741. As this waa
a treaty of cession, granting soil and sov-
ereignty, it is, in the latter respect, precisely
•nalogoUB to the grant of power, by the Consti-
tution, to the federal government; ao that ita
exceptions, prohibitions, aud reeervatione, as
well as grants, must be interpreted as all other
instruments, grants, treaties, and cessions, tak'
ing the worda as the words of the grantOT, re-
ferred to the subject matter granted or except-
ed, etc
Assuming, on the reasons and authority re-
ferred to in the preceding general views, that
the Constitution is a grant made by the people
of the several States, by their separate ratifica-
tions, and that the prohibition on their pre-ex-
isting powers are their separata voluntary cove-
nants, restraining the exercise of those which
ftre reserved, over the subjeots prohibited, these
conclusions necessarily follow: That a prohi-
bition upon a State, as to any given subject,
c«n, by no just reasoning, enlarge or vary the
powers delegated to Congress, su as to bring
within ita jurisdiction any matters not within
the enumerations of the powers granted. That
where the assent of Congress is made necessary
to validate any law of a State, Congress can
only assent or dissent thereto or therefrom, but
can exercise no legislative power over the sub-
ject matter, without some expreaa authority to
revise and control such 8tate law, by regula-
tions of its own. And that in the absenca of
*aj power in Congreaa, to do more than simply
assent or dissent, the aaient la a condition;
suid when once given to an act of a State, it
haa the same validity as If no prohibition had
been made In the Constitution against the exer-
«iaa of any right of the State, to do the act in
Tirtne of its reserved power, or any condition
in any way imposed, t« alTaGt Ita original In-
herent sovereignty. The assent of Congress is
made an exception to the prohibition, and when
giTwi, takea tb* cue out nt the prohibition, aud
leaves the power of the State nneontrolled, •■
the common law rule that "an exception out of
an exception leaves the think uuexpeated." 4
D. C. D. 290.
"No State shall, wKhont the consent of Con.
grew, enter Into any agreement or eompaet
with another State, or a foreign power."
By the terms, then, of this clause, whenever
the consent of Congreaa is given to any such
agreement or compact, the prohibition la fully
satisfied and ceases to operate; the StatM
stand towards each 'other and foreign {*17S
powers as they did tMfore the adoption of the
Constitution, so far as this sentence abridged
their reserved powers. But as the oonaent of
Congress cannot dispense with the prohiUtion
in the first sentence of this section, it beeomea,
by necessary implication, a proviso or limi-
tation to the second. That such agreement or
compact shall not be a treaty, alliance, or con-
federation; If it does not come within the con-
stitutional meaning of these terms, the agree-
ment or compact is valid, if made with the con-
sent of Congress; if it does, it is void by the
flrst part of the prohibition, which annuls
whatever Is done in opposition to It.
A reference to the articles of oonfederatitm
will show the sense in which theae terms are
used in the Constitution, in their bearing on
this case.
Article S. "No State^ without the consent of
the United States, in Congress assembliid, shall
send any embassy to, or receive any embassy
from, or enter into any oonference, agreement,
alliance, or treaty, with any king, prince, or
state. No two or more States shall enter into
any treaty, confederation, or alliance what-
ever, between them, without the consent of the
United States in Congress assembled, specify
iog accurately the purposes for which the same
is to be entered into, and how long it shall con-
tinue." I Vol. Laws, IS.
Article 0. "The United BUtes, in Congress
assembled, shall have the scde and exclusive
right and power of sending and receiving am-
bassadors, entering into treaties and alliances,"
etc. "The United States," etc., "shall also be
the last resort on appeal. In all dispute* and
differences, now subsisting, or that may here-
after arise, between two or more States, con-
cerning boundary, jurisdietion, or any eausa
whatever, which authority shall always be ex-
eTcised In the manner following," etc. 1 Vol.
IS.
"All controversies respecting the private right
of soil, claimed under different grants of two or
more States, whose Jurisdiction as they may
respect such lands, and the States which passed
such grants, are adjusted, the aaid grants or
either of them being, at the same time, claimed
to have originated antecedent to audi settle-
ment of jurisdictioD, shall, on petition of either
party to the Congress of the United States, be
finally determined as near as may be, in the
same manner as is before prescribed for decid-
ing disputes respecting territorial Jurisdiction
between different States." 1 Laws, 17.
From these provisions It Is most manifest
that the framers of the Constitution bad the
whole subject matter directly before them, and
substituted the probibltions In the tenth sec-
tion of the flnt trtlela, lor those la the sixth
ITS
Bauivdi'b CoiFSTtTonoiru Vmra.
sttlda «t mmMenMaU, «ltk two trnporUnt
chuiaM.
1. In the diwftmlnttlon betwaes tbc prolil*
bitfoB on StAtu, in ratation to foreign powcTs,
MKt between tfaemtelvM, apparent in tne two
fltat wntence* of thi ilxth article of confeden-
tiM. All embaaalea t« «r from, and all confer-
tttema or ftgreement* with foKlga power*, an
lt4*] 'prohibited b; the flrat Mntenoe; while
the Mcond seatenee prohibits anlir treaties, al-
lianoea, and confederal iona, tielween two or
more States. In e*ch sentence the consent of
Congress is made a condition ; but In the Mcoad
there is a fuller oondition that the purposw
and dnratioQ of the treaty shall be speeiSed,
aiul ttie worda "conference or agreement" are
omitted, ao tliat it prohibited an\j such as were
treaties, etc., and left the States free to make
agreements or compacts, touching thdr bound-
aries, without the eonaent of Congress,
Hence we l!nd that after these articles were
ratified, the Ststes made agreetueots, compacts,
or conventions with each other, settling their
lioundariei, or cooftrming those urerlously
made, of which the following are instanteii
PennsflTania with New Jersey in 1783 (2
Smith's L. rrj, with Virgbia In 1784 (lb. 201),
ttith New York In 1786, conflrmed in 1789 (lb.
SIO), Georgia with South Carolina in 1787
(Iaws of Georgia, App. 763), nraie of which re-
fer to any consent of Congress
But In the Constitution, agreements and
compacts between the Btatea and with foreign
Cowers are put on the same footing, being pro-
ibltef* if Coogreaa does not consent, and valid
If eoosent Is given, and the conditioa of specify-
ing the purposes and duration thereof, wholly
Mnitted; thus leaving the power of the States
iubject only to the condition of consent.
S. The Constitution gires Congress no power
to act on the boundaries of States, or on eon-
troversies about the title* to lands claimed un-
der grants from different State*; it* whole
Jurisdiction consists In the power of assenting
or dissenting to an agreement or compact of
boundary. The only part of the Constitution
Which grants any power on this subject to the
federal government, I* In the third article,
whi(A dMlares, "That the judicial power of the
United States shall extend, etc, to contro-
versies between two or more States, between
citiiena of the same State, claiming land under
grants of different States," etc These are the
two rases which were defined In the two sen-
tences of the ninth article of confederation, on
which Congress oould act, but which the Con-
*titution has authorised no other than the Ju-
dicial power to take within its cognizance.
Worn this view of the Constitution, In it* ap-
fllcatlon to the agreements and compacts be-
ireen States respecting their boundaries, the
result! are, to my mind, most clear ami satis-
factory; that when Congreae has exercised the
only power confided to them over this subject.
by ooneenting to the compact, their whole
Jurisdiction i* completely functus ofllelo. Such
•onpasta are, thenceforth, the act* of sovereign
States, which, interfering with no power grant-
ed to the United States by the ConaUtution.
or prohibited by it to the States, must be
deemed to b* aa exercise of their reserved
fowers, neither given, or in any way abridged
y tlwt butruRient, and bf ttw tmrty-foHrtli
aertlOB of the Jndlcbry Act. are Uaffl^ ••
rules of dedsioa by tfab and all other eonrta af
the United SUtea, "te sutU at eonmon Uw.-
Tbe consent of Coagreaa ka* been gives to tUs
eompacti 'and the preaent anit la one at I'lti
eommon lawj there csu be, then, no doubt tbai
the compact must be taken as made by eonwe-
tent authority, and as prescribing the mln^
which the nghta of the contrading partis*
must be ascertained.
Thia suit doe* not present for the aettoa el
the judicial power, "a controversy between two
or more Statea," or 'iMtween dtiiens of tlie
aanN State, claiming lands nnder gr^nta of
different States," but a controversy "between
dtixena of different State*," in which the
Circuit Court was bound to decide precisely a*
the 8UU Murt* were (2 Pet. 054; 6 Pet. 401),
In whom the title to. the premises in dispute
is vested, which lie south ol Walker's lioa, and
north of latitude thirty -six degree* tliirty-
minutea north.
It Is admitted that the northern charts
boundary of North Carolina i* thirty-aix de-
grees thirty minutes of north latitude, whieh 1*
so declared in the constitution of that Stnte
and Tennessee; neither State, therefore, bad
any right to lands north of that line; tuving
no ori^nal title thereto, any grants from
either State would be on that ground merely
void, according to the settled doctrine of this
court. S Cr. H; 6 Wh. 303; 11 Wh. 384; 0
Pet. 730. It I* clear, then, that aa the lands in
dispute are situated within thi* boundary, thoae
Stater bad no title which could peaa by their
grant* to the defendants, and that the plain-
tiff must recover under their title by wnrmnt
under Virginia, consummated by a patent from
Kentucky, unless the defendants have, in some
way, acquired a better title than the Stnta
under whom they claim, had by original ri^L
As Virginia had the oldest charter, no part of
her territory could be taken from ber without
her consent, or an express grant by the kin^
by his prerogative right of disposing of nil Lbe
vacant lands in the colonies before the Rcvohi-
tion, except within the province* granted to
proprietaries. Such grant or consent ia not
pretended, but the defendants rely on the im-
tlied consent of Virginia and Kentucky, in
LWS recDKnizing Walker's line as the tioundary
between tnem and North Carolina and Teniae*-
see, and acts of ownership and possession, long
exercised by these Slates, over Isnds between
that tine and thirty-six degrees thirty tninntas
north latitude, ss giving to them and tha
grantee* under them, a title by prescriptloe.
These grounds of defense present very im-
portant points for consideration, and i« my
opinion are of a political, rather than ft Jn-
dicial nature.
The consent of Congress to the eompnet,
strips the case of every provision of th« Gem-
stitution which can affect It, saving tha grant
of the judicial power over "controrersina be-
tween two or more States," which I take ttt be
suits between States, touching matten im eon-
troveny between them. But here thean is n»
controversy between State*, nor ean a aiiit be
sustained In the Circuit Court, where n State
i* a party, this court alone having origin^
Jurladlction of such eaaes; this U the oidi
utry action at ejectment, in whidi each fUtj
STUt from % 8t«ta, whoM orlgiDBl tttle and
juriBdictkni eai)f«M«llT cmbriMd the land in
17S*] qtiBition; the 'defanduit under granta
from Btfttsa, who aa eonfssBedlj baJd no original
right of soil or juiisdietioti to the land* thej
graat«d; to that eterj question affecting the
ri^ts of other States, aritaa collaterally in a
(Hit between two individnali. Tbe States have
adjusted all matters heretofore In aontroTcrif
between them, b; a solemn eompact, the sixth
article of which places the grant to the plain-
tiff on its original Tsliditj under the laws of
the States from which it emanated and was
perfected, and within whose acknowledged
rightful boundary the lands panted are situ-
ated- It this compact is valid, the defendant
has no standing in court; If It can be declared
iuTalid in a collateral action, on the grounds
contended for, it follows, as a necesaary conse-
quence, that any judicial power, State or fed-
Ji*l, is competent to annul It, though it is con-
sistent with the Constitution of tte State, and
rmtified according to that of the United Btatea.
S. r. 10 Pet. 474. The exigencies of the de-
fewJanta' caaa require them to go to this ex-
tent, for the terms of the sixth article are
DBitber ambiguous or admit of any construction
which can give the defendants any protection,
unless they can show the plaintiffs' "grant to
be invalid and of no eiTect, or that they have
paramount and superior titles to the land
covpred by such Virginia warrants;" to do
wUch they must break through the constitu-
tion of the States under whose grants they
claim, as well as the compact assented to by
Congress. There eonld be no title paramount
ta a Virginia warrant, duly taken out, entered,
surveyed, and patented, unless that State had
in some way lost her original right of soil and
jurisdiction north of latitude thirty-six de-
grees, thirty minntea; or Kentucky had en-
croached on the superior title of Tennessee,
who had no pretensions to the territory north
of that line by charter, who renounced them In
her constitution, and by solemn eompact stipu-
■ ■ ■ 'r that Vli ■ ' - ■ " "
lated expressly t
Virginia warrants should
This leaves the defendant but one position to
aasume, in which he can invoke the action of
tl>e judicial power, which is, that before the
compact was made, the State of TenneMce had
for the reasons set forth in the argument, or
on some other ground, become inoompetent to
make a compact with Kentucky, by which the
boundary between them should be any other
than Walker's linfc In other words, that the
State was by her grants to the defendants, or
those under whom they claimed, estopped from
BO settling her boundaries, as to exclude the
lands she had granted; that Virginia and Ken-
tucky were also estopped from making grants
Carolina and Tennessee had aequired a right
by prescription 1 o( consequence, that though
these States had granted lands to which they
had no title originally, yet when their title by
prcaerlption atta<Aed, their grants became
v^ld, Mid no compact between Tennessee and
Bmtuofcy eonld 6mtt then, « In^air their
u. 171
Bo far as the argnmnt nets on tbe pra-
hibition ot the Constitution against impairing
the oblirTation of the contract of grant, it Is a
sufficient ■answer that as a grant by a ['ITT
State of land to which she has no title Is void,
there is no obltntlon in the contract, no right
of property to impair or violate. Whether tbe
State will refund the purchase money, or grant
an equivalent out of what she does own (as
was done by PGnnsylvania, as to lands granted
to her soldiers, which were within the State of
New York), is optional with the State, but such
grant cannot estop her from making a com-
pact of boundary, or impose on her any obli-
how far judicial power can be exercised in aat-
tling the boundaries of States.
In a controversy between States as to their
boundaries, the Constitution has given original
jurisdiction to this court; whether it can be
exercised by the inherent authority of the
court, or requires an act of Congress to pre-
scribe and regulate the mode of its exercise,
need not be now examined; but it will be as>
Bumed, ex gratia, that it Is bv a bill in equity,
according to the practice of this court, and tbe
mode of proceedings in chanceiy.
In the great case of Fenn v. Lord Baltimore,
Lord Bardwicke laid it down ss an pstabliKlied
rule that the Conrt of Chancery had no original
jurisdiction of a question relating to the
bouadariea between the two proprietary prov<
inces of Pennsylvania and Maryland, in any
other case than where there was an a^eement
between tbe two proprietaries for setthns th^
boundaries. In such case chancery would en-
force the agreement bv a decree for a specille
performance; but witnout an agreement, the
ration was not one within the jurisdiction of
courts of the kingdom, and was only cog-
nliable in council before the king, as the lord
paramount under whom tbe provinces were
held In socage, by the tenure of fealty and
some nominal reservation. "The subordinate
proprietors may agree how they may hold their
rights between themselves;" "if a settlement
of boundaries is fairly made without collusion,
the boundaries so made are to be presumed to
be the true and ancient limits," made between
parties in an adversary interest, each concerned
to preserve his own limits, and no other or pe-
cuniary compensation pretented. 1 Ves. Sen.
447 to 4S4.
It is, then, the agreement, or eompact, which
alone gives jurisdiction to a court of equity, to
decree on the boundaries of provinces owned by
proprietaries subordinate to the king; other-
wise, it Is a political question, to be settled In
council, and not a judicial one for any court.
It cannot be doubted that the king In council
was competent, by an order of council, to settle
any question of disputed boundary between
those colonies which had royal governments by
their charters, or in those provinces which were
under proprietary governments, as be was
equally the lord paramount of all. When the
colonies and provinces became States b^ the
Revolution, they adopted this principle in the ^
article of confederation; by delegating to Con-
gress, as the then only power which was
paramount over contending States, the power
to appoint a tribunal to settle their disputed
Bauwik's Conbtitutiunu. Vuw*.
IIS*] *botiii<lBriei. Ob the aiiRie principle,
the ConBtitution nuide Congress pBraraount
over the States, b* making their agreemFnts
knd compftcts touching their boundsrips, sub-
ject to its approbation, and bj assigning to
this court the cognizance of "controversies be-
tween States," which includes those relating to
boundaries, made it so. Thus the line is most
listinctlj defined which separates the political
and judicial questions which arise touching tho
bouQdariea of provinces; nh^re there is an
agreement, it is matter of judicial cognizance,
b) decree what and where the agreed boundarjr
b; where there is none, it was a matter cog-
nizable oqI; before the king in council before
the Bevolution. But even then, proprietaries
were competent to settle the boundaries of
their respective provinces, by an agreement
without the license of the king; and chancery
would enforce its execution by a decree in per-
sonam on the delini[uent proprietary, without
any reference to the rights of the king, other
thftn adding to the decree a clause of salvo ^ure
eoronce (1 Ves. Sen. 449, 464), which was more
form than substance, as those rigbts con-
tinued, be the boundary where It mij^ht.
When the prerogative of the king, and the
transcendent powers of Parliament devolved nii
the several Stales by the Revolution (4 Wh.
861), there could be no paramount power com-
petent to prescribe the boundaries of S(ntt«,
which were sovereign by inherent right, until
they should appoint some common arlirter. to
whose decree they would submit. By the tim-
tederation, Congress appointed the trtbuiiii<,
and by the Constitution this court was author-
ized to decide these questions; but in both
esLses, the subject matters referred were
"controversies," not "compacts or agreements;"
oontroversies open and existing, which States
could not settle; not those which they had
eettled by solemn compacts, about which there
was DO difference in construction, and which
both States had faithfully executed. If a con-
troversy did exist, either as to the terms or
the execution of the compact, or in the absence
of a compact, the question of boundary de-
pended on the line of original right, or the joint
or separate acts of the contending States, the
tribunal thus appointed could settle It ss the
Dmpire between tnem. But It could exercise no
authority which exceeded the submission; it
eould not establish a boundary different from
what both States had made, or from that which
resulted from their antecedent rights and re-
lations with each other, when they could not
adjust them amicably. The umpire must base
his award on the oompact, if one exists; if not,
on the right of the States, tti adverse claimante
to the same territory; he cannot look through
or over the compact, and make an award on
grounds which would annul any of its pro-
visions, by giving to either State anythinz
which she had renounced, or stipulated that ll
should be held by the other State, its citizens
or grantees, "as rightfully granted." No
arbiter between nation^ ever assumed euoh
power; no nation would submit to Its exercise;
no such power la granted to this court, and
any construction of the Constitution which
I TB*] should so torture its plain language, 'and
most manifest intention, would atwke the
UnfoB to its centia>
If these Tlewe are eorreet, tbeir appHeatto
to this case Is dt^Utve. It comes up on a wrtt
of error from a circuit oourt, in a suit at cok-
mon law between citizens of PennsylTania.
claiming under Virginia and Kentucky, and
citizens of Tennessee, claiming under that State
and North Carolina, in which the Circuit Gooit,
and the Courts of the State have, by the 11th
section of the Judiciary Act, a concurrent jam
diction, and on which this court acta bj ita
appellate power. The plaintiff claims to re-
cover the land in virtue of a title confirmed by
the compact. The defendant does not attempt
to show that the plaintiff's title ie invalid, or
or of no effect on any construction of th« com-
pact, or any doubt as to what or where the
agreed boundary is; but reats his whole case oa
showing that Walker's line had been ao definite-
ly established, before the compact, aa to annnl
those provisions which confirm the plaintiff*!
title. As the effect of so adjudicating on the
rights of the parties, would lie an aasumptioa
by the ordinary judicial power of b State, or
an inferior court of the United States, of aa
Buthority to force upon two States a boundafj
which both diiclalm, a power which thia conrt,
as the constitutional arbiter between thca^
could not exercise, in virtue of ita original
jurisdiction, it is clear that it cannot so act by
appellate power. In deciding suite between
individuals claiming lands by grant* of differ-
ent States, between whom there waa a eoH-
pa"t of boundary, this court looks ooljr to
the compact, its terms and construction, to
ascertain the relative rights of the partiea,
without looking beyond it in order to find owt
what the boundary ought to have been. Vide
Sims' Lessee v. Irvine. 3 Dall. 425, 466, etc.;
Lessee of Merlatt v. M'Donald, at the preamt
term, arising under the compact between Penn-
sylvania and Virginia. Adopting the principlM
of the common law laid down in Pena t
Baltimore, that where boundaries are doubtful,
it is a proper case for an agreement, which
being entered into, the parties could not rcaort
back to the original rights between them. 1
Ves. Sen. 452, and those of the law of natituw,
laid down in the opinion of the court in this
case. It follows that the only questiona for
our judicial cognizance by appellate power, air
those which arise on the construction of tke
compact, and the locality of the boundary ■•
agreed and declared by a compact ratified by
Congress, to be decided by the same principlea
as a question arising on a cession, by a State,
of territory to the United States, of which the
case of Handly's Lessee w. Anthony it an il-
lustration.
That case arose on the cession by Virginia to
the United States, of the Northwestern Terri-
tory; one party claimed under Kentucky, the
other under the United States, by a grant of
land in Indiana; the question of the bouniUry
between these States, came up collaterally, and
was decided on the terms and construction ml
the act of cession and the compact bctwcca
Virginia and Kentucky. E Wh. 37S. But fa the
case of Poster ft Klam v, Neilson, irtere
*the title to the land in dispute turaad ['!«•
upon the boundaries of the eeiaion of LouIaiBaa
by Spain to France, and by France to tbt
United SUtee, it was otherwise. The land WM
situated south of lat. thirty-one degreea nottk.
t CiTi or Nxw YoBX *. Uilh.
north of the Iberville; being part
United States bad long contendi-'d wa« ctdt^d aa
part of Louisiana, and which Spain insieted
waa ratained by her as part of West Florida;
one party claimed bf a Snaniah grant made
kfter tlie ceaHion, the other hy mere posseBaian.
on the ground that the Spanish grant was void.
Thik couit held that the question of bound-
srj waa one which mu^t bu acted on by the
political deparinienl of the government, and
'that it wua tlje province of the court to con-
form it* decision to the will of the Lcgistuture,
If that will has been dearly expre.-scd." 2
Peters, 307. That case presented the preciue
quealion on which this turns. "To whom did
toe country between the Iberville and I'crdidn
rightfully belong, when the title now asserted
Sthe plaintiffs was acquired." 2 Pet. 3O0.
d there been a compact by the two govern-
menlB, declaring that the land belonged to one
of them or its grantees, or the boundary not
oonteated, it would have been puruly a ju-
dical question between individuals, as to
which had the title; but as it depended on a
boundary contested by both nations, the court
WAS not eouipetent to settle it. This principle
w*B affirmed iu The United States v. Arrc-
doudo, which turned on the coa^ilructioD of the
treaty with Spain, ceding the Floridaa to the
tlnitcd States; and this court held that without
an act of Con(;res9, submitting the question to
tba decision of the court as a judicial one, it
would have been a political question, on which
Congress must act before it was cogiii^ble by
the eouiU Q Pet. 710, 735, 743.
liie original right of the different States, 1
levivc an old controversy between them about
their boundaries, and to make the title of the
parties depend on the very question which, in
the case of Foster A Elani v. Neilson, thin
court declared itself incompetent to decide-^
"To whom did the country between latitude
thirty -six degrees thirty minutes and Walket't
line, belong rightfully, when the title now aa-
aerled by the plaintiffs was acquired," my an-
swer is — That was a political question between
the two State*, who have settled it by a com-
pact, in virtue of the requisite aanctiiHi of the
Constitution, to the exercise of a power n-
served to the States; and that compact declarea
that the grants of lands in this territory, nikda
in virtue of Virginia wfrranti, "shall be eon*
sidered as rightfully entered or granted." And
being fully nonvinced that I am bound to take
this compact as the rule for my judgment, the
law of this case, the test by which the rights
of parties are to be settled, and finding In it
abundant authority for atfirming the judgment
of the Circuit Court, I should feel that by any
further consideration of the points made in the
argument of the plaintiffs in error, it might be
inferred that I entertained doubts of the sound-
ness of the principles on which *my (*I(1
opinion is founded. These principles are, in
my judgment, as unquestionable as they are
fundamental, and cannot be impaired without
great danger to the harmony, U not the per-
manency of the Unioa.
THE HAYOS AND ALDERMEN OF THE CITY OF NEW YORE t. UILK.
(Ante, 11 ret. 102.)
The direct question on whrrh this case turns
ia, whether a l»w of New York, directing the
commanders of passenger vessels, arriving from
foreign ports, to make a report of their num-
bera. etc., and to give security that they shall
not become chargeable to the city as paupers,
before they shall be permitted to land, is re-
pugnant to that provision of the Constitution
of the United States which gives to Congress
power "to regulate commerce with foreign
■i»tionB," etc. In considering this question, I
«fa*U not inquire whsther thie power is ex-
dusive in OMigress, or may be, to a certain
extent, concurrent in the SUtes, but shall con-
fino myself to an inquiry as to its extent and
objeeta. That the regulation of commerce, in
mil ita branches, waa exclusively in the several
eolonici and Statea, from April. 1778, has been
■hown in the preceding general view (pages 70,
71), and that it remained ao (ubject to the
ninth article of confederation, till the adop-
tion ol tiis Constitution; one great object of
vrliich was to coiter on Congress such portion
of this power as was neceasary for federal
Eurpoaes, is most apparent from the political
istory of the country, from the peace of 1782
till 17ST. Vide 1 Lawa U. B. 28 to 58. It was
ifsdiapenMble to the efficiency of any federal
sovemment that it elMnild havt the power of
regulating foreign commerce and between the
States, by laws of uniform operation through-
out the United States; but it was one of the
most delicate subjects which could be touched,
on account of the dilKculty of imposing re-
straints upon the extensiun of the power, to
matters not directly appertaining to com-
mercial regulation.
"The idea that the same measure might, me-
cording to circumstances, be arranged with
different classes of powers, waa no novelty to
the framers of the Constitution. Those illue-
trious patriots and statesmen had been, many
of them, deeply engaged in the discussiona
which precedM the war of our Revolution, uij
all of them were well read in those discussions.
The right to i^gulate commerce, even by the
impo.iition of duties, was not controverted; but
Che right to impose a duty for the purpose of
revenue, produced a war perhHpa as important
in its consequences to the human race aa any
the world has ever witnessed." S Wheat. 202;
Gibbons v. Ogden.
In the Declaration of Rights in 1774, Con-
gress expressly admitted the authority of auch
acts of Parliament "as are bona fide restrained
to the regulation of our external commerce, for
the purpose of securing *the commercial [*1SX
«]vartaBCt of the whole empire to the mother
... J
Bauww's ConanruTiOHAt. viewb.
amintry, mnd the commereUl beuefita of iU n-
■pective members; excluding every idea of tut-
fttion, interDal or external, for railing ft reve-
nue on the Bubject in America, without their
content." But in admitting this right, the;
Mserted the free and exclusive power of "legis-
IfttioQ in their several provincial legislatures,
in ail caaes of taxation and internal
polity, subject only to the negative of their
sovereign, as has been heretofore Uied and au-
euitomed." Ante, p. 09. Taxation was not
the only fear of the colonies, as an incident or
means of regulating external commerce ; it was
the practical consequences of making it the pre-
text of asBUming the power of interfering with
their "internal polity," changing their "internal
Solice," the "regulation thereof," "of intermed-
ling with our provisioni for the support of
civil government, or ^he administration of
justice." Vide Joum. Cong. 28, 08, 147, 177.
The States were equally afraid of intrusting
their delegatOB in Congress with any powers
which should be so extended by implication or
ooDstruction, of which the instructionB of
Rhode Island, in May, 1776, are a epecimen:
"Taking the greatest care to secure to this
oolong, in the strongest and most perfect man-
ner, its present form and all the powers of
government, so far as it retataa to ita internal
police, and conduct of our own officers, civil and
religious." 2 Journ. 163. In consenting to a
deciaratioQ of independence, the convention of
Pennsylvania added this proi/iao, that "the
forming the government, and regulating the in-
ternal police of the colony, be alnays reserved
to the people of the colony." Ante, p. 71. In
the 3d article of confederation, the States
guaranty to each other their freedom, etc., and
against all attacks on their sovereignty and
trade; in the Treaty of Alliance with France,
the latter guaranties to the Statea their sov-
ereignty "in matters of commerce," absolute
and unlimited. In the 9th article of confedera-
tion, the same feeling is manifest in the restric-
tion on the treaty -ma king power, by reserving
the legislative power of the Statea over com-
mcrce with foreign nations. It also appeara in
ths cautious and guarded language of the
Constitution, in the grant of the power of
iaxation, and the regulation of oonimeree,
tvhich give them in the most express terms, yet
in such as admit of no extension to other sub-
jects of legislation, which are not included in
the enumeration of powers. In giving power to
Congress "to lay and collect taxes, duties, Im-
posts, and excises," the objects are deSned — "to
pay the debts, and provide for the common de-
fense and general welfare of the United
Btates." This does not interfere with the
power of the States to tax for the support of
their own government, nor is the exercise of
that power by the States, an exercise of any
eirtion of the power that Is granted to the
nited States." 9 Wh. ISB. "That the power
of taxation is retained by the States, is not
abridged by the grant to Congress, and may
be exercised concurrently, are truths which
have never been denied." 4 Wh. 426. It
results from the nature and objects of taxation
183*] that It must be concurrent, 'as the
power of raising revenue for the purposes of
each government is equally indispensable,
tliough tbo extent of taxation ii a matter
which must depend on their discretion. Ik
42S; 4 Pet. 661, B63. The objecta of taxatiw
depend, of course, on those to which the pro-
ceeds are to he applied. Congress is limited to
Chose which are defined in the terms of thi
grant, but the States have no other limitations
impowd on them than are found in their era-
stitutions, and sueh aa necessarily reault from
the powers of Congress, which Statea cannot
annul or obstruct by taxation. 4 Wh. 400, etc.:
9 Wh. eiB, etc.1 Z Pet. 463. In other respects,
the taxing power of Congress leads to no col-
lision with the laws of the States; but th«
power to regulate commerce has been a subject
of more difBculty from the time the Constitu-
tion waa framed, owing to the peculiar situa-
tion of the country. In other nations, com-
merce Is only of two descriptions, foreign and
domestic; in a confederated government, then
ia necessarily a third; "commerce between th*
constituent members of the confederacy;" ia
the United States there was a fourth kind.
which was carried on with the numerous Indiaa
tribes, which occupied a vast portion of th*
territory. Each description of commerce wai
in its nature distinct from the other, in th«
mode of conducting it, the subject* of oper-
ation, and its regulation; from its naturs,
there waa only one kind which could be regu-
lated by State taws; that commerce which was
con&ned to its own boundaries, between its
own citicens, or between them and the Indiam.
All objects of uniformity would have been de-
feated if any State had been left at liberij
to make their own laws on any of the other
subjects of commerce; but the people of tbi
States would never surrender their own control
of that portion of their commerce which vu
purely internal. Hence the grant is conKntd
"to regulate commerce with foreign nation*,
and among the several States, and with the
Indian tribes;" which restricts the term com-
merce to that which concerns more Statea thsa
one, and the enumeration of the partioulsr
classes to which the power was to be extended,
presupposes something to which it do«s not
extend. "The completely internal oommeroc ol
a State, then, may be considered as reserved
for the State itself." 9 Wh. 104. 195.
This government is acknowledged by all to
be one of enumerated powers. The prindplt
that it can exercise only the powera gmetad
to it, would seem too apparent to have required
to be enforced by alt those arguments wluch
its enlightened friends, while it was depend-
ing before the people, found it necpssary t«
urge. This principle ii now universally ad-
mitted. 4 Wh. 406. Another principle ii
equally so. That all powers not granted t»
the United States, or prohibited to the Ststta,
remain as they were before the adoption of the
Constitution, oy the express reservation of tie
lOth amendment (1 Wb. 325; 4 Wh. 1931; a^
that an exception preaupposes the exist^m
of the power excepted. 12 Wh. 438. Tho^
these principle* have been universally adopted.
their application presents questions which ftt-
petually arise, as to the extent of the poweif
^which are granted or prohibited, {'!**
"and will probably continue to arise as longs*
our system shall exist." 4 Wh. 40fi. It wmU
seem that the term "commerce," in ita MdiMiy
■cnse, and aa defined by thi* oourt, woeMJIf
Ths iixtat, src., or Tm Cm or Hvw Vobk v. Uilr.
tkia tinM lutn bacome tatclllgiblei it haa bten
held to embnce every apecics of eotmnercinl
[ntereoDrM, traila, tnffle, knd navigation; " "
foreign commerw," and "all commerce nitionjj
the Statea" (9 Wh. 1»3, 12 Wh. 446); ■'--
rveulation of which baa been aurrendered.
it has beoii ftt the aame time held that aa to thoae
inbjeciB of legislation "which are not anrren-
dered to the general gOTernment" — Inspection.
Jnaranttne, health laws of every deuniptton,
lie internal commerce and police of a State,
(umpike roada, feiriea, etc. — "no direct gener-
■1 power over tbeae objects is granted to Cou-
gresB, oonaequcDtlf they remain aubject to
State Legislation" (9 Wh. SOS), and "ought to
remain with the States." 12 Wh. 443. In the
broad definition given in these two casta, "to
commerce with foreign nations, and amoDg tlie
several States," it has been applied in the most
eantions and guarded language to three kinds
of commerce which are placed under the juris-
diction of Congreii, expresely excluding the
fourth kind — the internal commerce of a State.
The court very properly call tliete branches of
commerce, units (9 Wh, 194); each a distinct
subject matter of regulation, which the States
might delegate or reserve. It would contra-
diet every principle laid down by the court, to
contend that a gmnt of the power "to regulate
commerce with foreign nationa," would car-
ry wilh it the power to regulate commerce
"among the several States, or with the Indian
tribes," either by implication, oonstructiou,
as a means of carrying the lirat power into
ecution. It would be equally ao to contend
that the grant of the three powers eonld em-
brace the fourth, which is aa distinct from all
the others as they are from each other; as
units, they cannot be blended, but must remnin
aa distinct aa any other powers over other sub-
S' «ts which have not been surrendered by the
tates. If, then, the power of regulating in-
terna! commerce hat not been granted to Con-
gress, it remains witb the States as fully as if
the Constitution had not been adopted; and
every reason which leads to this result, applies
with atill greater force to the internal polity of
a State, over which there is no pretense of any
jurisdiction by Congress. No subtlety of rea-
soning, no refinement of construction, or in-
Knuity of supposition, can make commerce em-
ace police or pauperism, which would not, by
parity of reasoning, Include the whole code of
Sta.te legislation. Quarantine, health, and iu-
apection laws, come much nearer to regulations
of commerce than those which relate to paupers
only; if the latter are prohibited by the Con-
atitution, the former are certainly so, for they
opcTAte directly on the subjects of commerce;
the ship, the cargo, crew, and passengers;
whereas poor laws operate only on passengers
who come within their purview.
On the same principle by which a State may
prevent the introduction of infected persona, or
goods, and articles dangerous to the persons or
18ft*] 'property of its citizens, it may exclude
paupers who will add to the burdens of taxa-
tion, or convicts who will corrupt the morals uf
the people, threatening them witb more evils
thui gunpowder or drsesse. The whole sub
Jeet la necessarily connected with the internul
of whish has been ezeepted from the pnAIM-
tions on tbs States, and ia of oonrse hieluded
among their reaerved powers.
If there is any one case to which the follow-
nient construction of the ConstitutiOD, and il
certainly a convenient one, to coneider the pow-
er of the States as existing over such cases aa
tbs laws of the Union may not reach." 4 Wh.
I9A. Let this case be tested by this rule, and
let it be shown that any clanss in the Constitu-
tion empowers Congress to psss a law which
can reach the subject of pauperism, or the CHse
of a pauper Imported from a foreign nation or
another State. They are not articles of mer-
chandise or trafHc, imports, or exports. Con-
gress cannot compel the States to receive and
maintain them, nor establish a system of poor
laws for their benefit or support; and there oaa
ba found in no decision of tbis court any color
for the proposition that they are in any reipect
placed under the regulation of the laws of tbe
Union, or that the States hsve not plenary pow-
er over them. The utmost extent to which
they have held tbe power of regulating eom-
mereo by Congress to operate as a prohibition
on States, has been In the caie of Gibbons v.
Ogden, to tbe veosel in which goods or passen-
gers were transported from one State to anoth-
er, and in Brown v. Maryland, to the importa-
tios of goods from foreign ports to the United
SUtes.
In the former caae, the only question was
whether a State law woa valid which prohibit-
ed a vessel propelled with steam from navigat-
ing tbe waters of New York, though she had a
coasting license; in the tatter, the question was
whether a State law "could compel an im-
porter of foreign articles to take out a license
from the State before be shall be permitted to
sell a bste or package so imported. Both laws
were held void on account of their direct re-
pugnance to the Constitution and existing laws
of Congress, the court holding that they com-
prehended vessels of all descriptions, however
propelled, and whether employed in the trans-
portation of goods or paasi-ngers; and that aa
importer of goods, on which be had paid or as-.
cured the duties, could not be prevented from
selling them ss he pleased, before the pack-
ages were broken up. In the New York case,
the whole reasoning of the court was to show
that "a ooasting vessel, employed In the trans-
portation of passengers, is aa much a port* -'i
of the American marine as one employed v
the transportation of a cargo;" and they ra-
f erred to the provisions of the Isw regulating
tbe coasting trade, to the Constitution respect-
ing tbe migration or importation of certain
persons, to the duty acta containing provi-
sions 'respecting naasengers, and the Act 1*181
Ifil9 for regulating passenger ships for tht
I purpose. D Wh. 21S to 219, etc Noth-
ing more was decided, or was intended to b*
decided, than that tbe power to regulate eom-
merce, including navigation, oomprehended all
Teasels, and "the language of tbe laws exclud-
'ng none, none can be excluded by construc-
ion." "Tbe question, then, whether the oon-
'eyaoce of possengeis be a part of the coasting
trade, and whether a vesaal can be protected in
that weupatioB, br a eoasting liceose, ore not
• 6B
Bauiwin'b CoKaiiiutioNAL Tawt,
and eaoni^t be raiwd In this oase. The real
and Bole question aeeniH to be, wht^ther a atcain
machine in actual use, deprives a vessel of tliv
frivilege conferred by a license." 0 K'h. 210,
t li evident, therefore, that there ti nothing in
the caaea then b«foi« the court, in their reaaon-
ing or judgment, which can operate unfavora-
bly on the present lawi on the oontrary. there
U much (in my opinion) which directly affirmt
ita validity, not merely negativel;, but posi-
tively, as the necesaary result of the principles
declared in these and other cases.
Taking it at a settled principle that those
■ubjecta of legislation which are not enumeru-
ted in the surrender to the general government
remain subject to State regulation. It follows
that the sovereignty of the States over tbeni,
not Laving been abridged, impaired, or altered
by the Constitution, is aa perfect as if it had
not been adopted. Having referred to the caseH
fu which this court has defined the nature and
extent of State sovereignty, "in all cases where
its action is not restrained b}' the Constitution''
(ante, page 13, 14, 15, BT, 91, S5, QS), it is un-
necessary to make a second quotation from their
opinions, the inevitable conclusion from which
Is, that independently of the grants and prohi-
bitions of the Constitution, each State was and
ia "a single sovereign power," a nation over
whom no external power can operate, whoae
Critdiction is necessarily exclusive and abso-
Le within ita own boundaries, and susceptible
of no limitation not imposed by itself, by a
grant or cession to the government of the Union.
The same conclusion results from the nature
of an exception or reservation in a grant; the
thing excepted or reserved always is in the
grantor, and always waa (vide ante, 64, 05) ; of
consequence, the reserved powers of a State re-
main as stated in the Treaty of Alliance with
France, and the con federation .
The States severally bound themselves to as-
sist each other against all attacks on account of
aovereignty, trade, or any other pretext what-
ever. France guarantied to them their liberty,
sovereignty, and independence, absolute and
main in all respects where the Constitution has
not abridged their power*; the original juris-
diction of the State adheres to its territory as
a portion of sovereignty not yet given away,
and subject to the grant of power, the residu-
ary powers of legislation remain in the State-
"If the power of regulating trade had not been
187*] given to the graeral government, 'each
State would have yet bad the power of regulat-
ing the trade within its territory (3 Wb. 388,
389) i and this power yet adheres to it, subject
to the grant) the only qnestion, then, is, to
what trade or commerce that grant extends.
This court has held thst it doe* not extend to
the internal commerce of a State, to its system
of police, to the subjects of inspection, quaran-
tine, health, roads, ferries, etc., which is a di-
iwet negation of any power in Congress. Tfai^y
have aUo held that, "consequently they remain
subject to State legislation," which is a direct
afHrmation that those subiects are within the
CDwers reserved, and not tnose granted or pm-
ibited. We must, thsu, ascertain what is
oommerce, and what is police, so that wlien
tbers viae* a ooUUion between an act of Con-
gresa regulating eommeroa, w faapoaing a te|
on ^oods, and a State law which prohibita, m
subjects the landing of sud) goods to State n|
ulations, we may know which shall give wu'
to the other; whirrli it suprpme and which u
subordinate-^he law of the Union, or the lav
of the State. On this subject this court seeaH
to me to have been very expliciL Id Bniwa
V. Maryland they held that an importer of lor-
eigu guods may iand them, and hold them tree
from any State taxation, till he sells them ot
miles them with the general property of tW
State, by breaking np hi* package*, etc Up to
thia point, then, the good* remained under
the protection of the power to regulate foiciga
commerce, to the exclusion of any State power
to tax tliein as article* of dontpatic commerce.
This drew a definite line betivei^n the powereof
the two government*, as to the regulation of
what was commerce or trade, and it eaunot b*
questioned that it was the true one; the power
of Ckingreas was held eupreme, snd that of the
State subordinate. But the conclusion ot the
court was very different when they cootempla-
ted a conflict between the laws which author-
ized the importation and landing of ordinary ar-
ticles of merchandise, and the police laws of a
State, which imposed restrictions on the inpor-
tation of gunpowder, or articles injurioua to the
public health. In considering the extent of the
prohibition on States against imposinn > tax on
imports or exports, the court use this language:
"The power to direct the removal of gua-
powder is a branch of the police power whkk
unquestionably remains, and ought to remain,
with the States. If the possessor storea it him-
self out of town, the removal emnnot be a duty
on imports, because it contributes nothing to
the revenue. If be prefers placing It in * pub-
lie magazine, it is because he stores it tlierv, ia
his own opinion, more advantageously than
elsewhere. We are not sure that this may nol
be classed among iniipt'ction laws. The re-
moval or destruction of infectious or unsuusd
articles, ia undoubtedly an exercise ot that pow-
er, and forms an express excuptian to the pro-
hibition we are considering. Initred, the laws
of the United Stales expressly aauctioa tht
hoalth laws of a State."
"The principle, then, that the importer ae
quires a right, nut only to bring the articles ialo
tne country, but to mix tliem with tits oomuoa
•mass of property, does not interfere l*l»»
with the necessary power of taxation, which is
aek now I edged to reside in the States, to thai
dangerous extent which is apprshended. It
carries the prohibition in tlie Constitution mo
farther tlian to prevent the States frum di .ag
that which it was the great object of the Coa-
slitution to prevent." 12 Wheat. 442. 444
Now, as it is acknowledged that the rixht ol
the importer, so secured by the Constilutwa
anil acts of Congreas, is subject to the reatrainti
aud limitations of the police laws of a State, and
tlie reuioval and destrueLion of danjeroua, ia-
fectiuua and unsound articles ia an uiiJoubied
exercise of tbe power of a Slate to pasa iasp-
tion laws, the consequence i* obvious. tW
power of Congress is. and must be, subordiaali
to that of the States, whenever comiuerce reach-
es tliat point at which the vessel, the cnrgth >h>
crew, or the passenger* on board, become ■ih'
>eot to the potice laws of a Stata; Uie iuipottri
The Mato*, no., w i
Btut aubmit to innpection, tiealth, and quanui-
tlne laws, and can land nothing eontrary to
tbeir proTUionB, For such purposri, tbej are
an express e^iception to the prohibitioni on the
State! against imposing dutiea on export* and
imports, which power might have heen eier-
Oted hy the SUtei had it not been forbidden (9
Wb. 200) ; the reitriction presupposes the ex-
istenee of the power restrained, and the Conitt-
tntion certainlj recognizee inspection laws as
the exercise of a power remaining in the State.
lb. 203; 12 Wh. 43B, 442. The Constitution
thoB has made such laws an exception to the
prohibition. Tlie prohibition was a restriction
on the pre-eiistlng power of tbe State, and be-
ing removed as to all police laws and those of
inspection, the effect thereof is, by all tlie prin-
eiples of this court, as to exceptions, tbe same
at b7 the rules of the common law. "An ex-
ception out of an exception, leaves the thing
Dseicepted." 4 D. C. D. 290; ante, 85.
It may, therefore, l>e talcen as an establislied
rule of constitutional law, that whenever any-
thing which is the subject of foreign commerce,
ia brought within the jurisdiction of a State, it
becomes subject to taxation and rsKulition by
tbe laws of a State so far as is necessary for en-
forcing the inspection and all analogous laws,
which are a part of its internal police. And as
these laws are passed in virtue of an original
inherent right in the people of each State to an
exclusive and absolute jurisdiction and legisla-
tive power which the Constitution has neither
granted to the fjeneral government or prohibited
to the States, the authority of these laws is sti-
preme, and incapable of any limitation or con-
trol by Congress. It is the emphatic language
of this court, this power "adheres to the terri-
toTj of the State as a portion of sovereignty
not yet given away," It is a part of its soil,
of iMith of which the State is tenant In fee,
till she mnlces an alienation.
No opinions could be In more perfect con-
formity with the spirit and words of the Con-
stitution than those delivered in the two chhcb.
Tbey assert snd maintain the power of Con-
gress over the three kinds of commerce whicli
are committed to their regulation; extend it to
18V*] 'all its ramification I, so as to meet the
objects of the grant to their fullest extent, and
prevent the States from interposing any ob-
etructlons to Its legitimate exercise within their
Jurisdiction. But having done this; having vin-
dicated the supremacy of the laws of the Union
over foreign commerce, wherever it exists, and
for all the purposes of the Constitution; the
eonrt most strictly adhered to that line which
separated the powers of Congress from those of
tbe States, and is drawn too plainly to be mis-
taken, when there is a desire to And it.
By tbe Constitution, "The Congress shall
have power" "to regulate com mere with for-
eign nations, and to pass all laws which may b«
necessary and proper for carrying into execu-
tion the foregoing power," "as to regulate corn-
By Inherent original right, as a single sov-
•reign power, each State has the exclusive and
absolute power of regulating its internal police,
and of passing inapection, health and quarantine
lavs; and by tlw Constitution, as couatrued
by thia court, may lay any imposts and duties
oa iMporU ud uporU, wUob bmt be kbaolnte*
■ Cnr or New Task t. Uiur.
•» I
execute, or carry its regnlations Into effect:
there are also two powers in a State, one to
pass inspection laws, the other to lay duties
and imposts on exports and imports, for the
purpose of executing such laws. Tbe power of
the State is original; that of Congress is deriva-
tive by the grant of the State; both powers are
brought to bear on an article imported, after It
has been brought within the State, so that each
government haa jurisdiction over the article for
different pnrposes; and there is no constitutional
objection to the exercise of the powers of either,
hy their respective laws. The framers of the
Constitution foresaw and guarded against the
conflict, by first providing sgainsC the imposi-
tion of taxes by a State on tbe articles of com-
merce for the purposes of revenue, and next
securing to the State! the execution of their in-
spection laws, by this provision — "No Stste
shall, without the consent of the Congress, lay
any imposts or duties on imports or exports,
except what may be absolutely necessary for
executing its inspection laws; and tlie net prod-
uoe of all duties and imposts laid by any State
OB imports or exports, shall be for the use of
the Treasury of the United States; and all such
laws shall be subject to the revision and control
of the Congress,''
There can be no plainer or better defined line
of power; a Slate can, hy Its reserved power,
tax imports and exports to execute its inspection
laws; it can tax them for no other purpose,
without the consent of Congress, and if it is
even by an inspection law, it is subject to two
restrictions; tbe United States are to receive the
net produce, and Congress may revise and
control the law. If the inspection law imposes
no duty or impost, Congress has no power of
-.-__ control over it, and their regulations
st 'be subject to its [*I80
provisions; no restraints were imposed on this
reserved power in the States, because its exer-
cise would neither defeat nor obstruct any of
tbe powers of Congress, and these are the rea-
sons of the court for the construction of the
Constitution whieh they ikave given.
"It carries the prohibition in the Constitution
no farther than to prevent tbe States from do-
ing that which it was the gn:at object of tbe
Constitution to prevent.'
This object is clearly pointed out in tbe clause
above quoted, by the nature of the prohibition,
with its qualifications; it was not to wholly de-
ny to the States the power of taxing imports
or exports, it only imposed, as a condition, the
consent of Congress. In this respect, it left to
the States a greater power over exports than
Congress had; for, hy the ninth section of the
first article, they were prohibited from taxing
exports, withont any qualifi cation, even by the
consent of the State; whereas, with tbe consent
of Congress, any State can impose such a tax
by a law, subject to tbe conditions prescribed.
But if the State law impose* no tax on imports
or exports, the prohibition does not touch it,
either by requiring the consent of Congress, or
malting the law subject to its revision or con-
trol; oonsequently, an inapection law, which
consists nwiely of regulftUons ai to mattera ap-
IM
Bauiwim's CtufsmunoRU V^ewi.
broprI»t« to nA cnbjeeta, h no more eubject
to knj eontrol, than anj othnr law relating to
police. IF the law Impoaea a tax, it then be-
oomeii BO far mbjeet to reviiion; but this pow-
er to revise and control extends only to tbv
tax; and as to that, Congress cannot go so lar
M to prevent a State from imposing such ss
"may be abaolutely necetsary for executing its
Inspection laws." Thus far the power of the
Btate Is incapable of control; and ae this court
baa declared that health, police, and quarantine
laws, come within the iatne principle as ins)iee-
tion laws, the same rule moit apply to them;
the powers of the States over these subjects are
absolntc, if they impose no tax or duty on im-
ports or exports. If they Impose such a tax,
the law is valid by the original authority oF
the Btate, and if not altered by Congress, by ita
supervisory power, is ss binding as it would
have been before the Constitution, because it
has conferred no original jurisdictfoD over sucli
■uhjects to Congress.
Taken in this view, the object of this probihi-
tion is apparent, and when carefully examined,
will be found materially different from the pro-
hibition* in the next sentence, which relat« to
matters wholly distinct, and are as different in
their nature as their object. Among them is a
prohibition on the States against laying a duty
on tonnage without the consent of Congress,
but it impose* no other condition; so that if
this consent is once given, no revision or eon-
trol over the law exists. This provision would
apply to a law regulating pilota, which has
never been eonsiderod by Coogresa as a rcgu.
latioQ of commerce, and has been left to the
Btates, whose laws have been adopted from tlie
beginning of the government: auch adoption lie.
Congress a revising and controlling power
State laws, which impose a tax or duty on im-
ports or exports, or in any case makes their
consent necessary to give validity to any law or
act of a StBt«i the meaning, object, and inten-
tion is to declare that no other restriction ex.
ists. Any case, therefore, which does not come
within the prohibition, or in which the proliibi-
tion is removed by the perforniance of the con-
dition, can be no more reached by any aot of
Congress than if no jurisdiction over It had
been granted. The leserved power of the State,
when tbus disencumbered of all restraints, em-
brsees the case as one appropriata to its exelu-
iive power of regulation, which Congress can-
not interfere with; though ther may tax or
regulate the same thing for federal purposes,
they cannot impair the power of the States to
do either, for such purposes and objects as are
recognised or authorized by the Constitution.
Thus the States, by inspection and analogous
laws, may regulate the importation and expor-
tation of the iubjects of foreign commerce, so
far ai i* necessary for the execution of suuh
laws; for all other purposes, the power of Con-
gress over them is exclusive, until they are
mixed with the common mass of the property
in a State, by a packa^ sale. Thus, all the
objects of the Constitution having been effect-
ed, the State has the same power over the
article* Imported as over those which had
jMver bean subject to th« regulation of Con-
gress,
In applying thasa ptatn deduetlona trma th
provisions of the Constitution as expounded by
this oourt to the present case, it comes within
none of the prohibitions. The law in question
encroaches on no power of Congress, it impoees
no tax for any purpose; it is a measure necea-
sary for the protection of the people of a State
sgainst taxation for the support of paupers from
sbroad or from other States, which Congrcu
have no power to impose by direct assessment,
or aa a consequence of their power over com-
merce. The constitutioasl restraints on Btate
laws, which bear on imports, exports, or ton-
nage, were intended, and are applicable only to
eases where they would injuriously affect the
regulations of commerce prescribed by Cni-
gress; not the execution of inspection or analo-
Kus laws, with which the Constitution inter-
res no further than to prevent tbem from be-
ing perverted to the raising money for the use
of the State, and subjecting tbem to the revision
and control of Congress. In this view of the
respective powers of the general and Stat? env-
ernments, they operate without any collisioo.
Commerce is unrestricted by any tHutt lami
which assume the obstruction of navigation by
any vessels authorized by law to navigate from
State to State, or from foreign ports to those
of a State, whether to transport goods or pas-
sengers. Imported articles remain undisturbed
under the protection of Congress after they are
landed, until by a package sale they becotne in-
corporated into the common mass of property
within a Slate, subject to its powers of taxation
and general jurisdiction. But neither vessils
or goods are protected from the operation ol
those 'laws and regulations of internal [*IB3
police, over wbich the States have an acknowl-
edged power, unaffi'cted by any grant or pro-
hibition which impairs its plentitude; the con-
sequence of which is. Congress have no juris-
diction of the subject matter, caii pass no laws
for its regulation, or make any exemption from
their provision*.
In any other view, collisions betweoi th*
laws of the States and Cungrues wuuhl uo us lU-
evitable as interminable. The powers of a
State to execute its inspection laws is as con-
stitutional as that of Congress to carry into ex-
ecution its regulation* of commerce; if Con-
gress can exercise police powers as a means ol
regulating commerce, a State can, by the autie
purity of reasoning, assume the regulation of
commerce with foreign QBtioDS, as tbe means
of executing and enforcing its police and in-
spection l«.w*. There is no warrant in the Con-
stitution to authorize Congress to encroacb up-
on the reserved rights of the States, by the
assumption that it i* necessary and proper for
carrying their enumerated powers into execn-
tion; or to authorize a State, under color at
tlieir reserved powers, or the power of exe-
cuting its inspection or police regulationa, to
touch upon the power* granted to Congresa or
prohibited to the States. Implied or conatrue-
tive powers of either description, are aa wholly
unknown to tbe Constitution as they are utter-
ly incompatible with its spirit and proTisJon*.
"Tbe Constitution unavoidably deal* in geN-
eral language" (1 Wh. 32S|; "it marks only
its great outline* and deaignatea ita important
object*" (4 Wh. 407), but theae outline* »M
objeoti ftr* all enumemtedi ooiM onn ba addai
lUt Uatob, no., cm tmb Cm or Nnr Ton v. Htut.
•r telren mwm^j what b ao narked and dnig-
Dfttcd in gf>npr*l tenni, comprehends tha nib-
ftet matter in ila detail. A ^nt of UgiBlative
powrr over any given subject, aamprehends
tba w.'iole subject; the corpus, th« body, and
all Its constituent parts; so doea a prohibition
talesislate; yet the framersof the Constitution
could not have Intended to leave it in the power
of Congrett to so extend the details of a granted
power, as to embraee any part of th« corpus of
a merved power. A power reserved or ex-
cepted in general terms, as internal police, is
reserved as much in detail and in all its n
cations, as the granted ^wei- to regulate
merce with foreign nations; the parts or
divisions of the one, cannot be carried into the
other, by any assumed necessity of carrying
tlw given power in one cose into exeoution,
whicE could not lie done in tbe other. NeoeB-
■ary is but another word for discretionary,
whbn there is a desire to aiaume power: let it
<«(.« be admitted as a const itutional apology
for the assumption by a State of any portion of
a gntnted power, or by Congress of any portion
of a reserved power, the same reasoning will
authorize the assumption of the entire power.
States have the same ri^ht of deciding when a
oeceaait; exists, and legislating on its assump-
tion, as Congress has. The Constitution has
Ct them on the same footing in this respect;
t its frantera have not left their great work
subject to be mangled and mutilated by any
construction or implication, which depends on
193*] discretion. *or actual or assumed ue-
esnaity. Its granta, exceptions, and reserva.
liona, are of entire powers, unless there are
•ome express qualifications or limitations; if
•Ithcr are extended or contracted by mere im-
plk^tion, there are no limits which can bo as-
signed, and there can be no certainty in any
rrorision in the Constitution or its amendments,
r one power can be incorporated into and
MDklganiated with another distinct power, or if
aabstantive and distinct powers which are
vested in one legislative bcMly can be infused
by coastniction into another legislature, as the
meuu of carrying into execution some other
power, tbe eooMquBnces are obvious.
Any enumeiation or specification of legisla-
tira powers is uaetess, if those which are omit-
ted are inserted on the ground of necessity;
this would be supplying tb« defects of the Con-
stitution by assuming tha oqiuiie powem of
GonTentloBs of tbe people in the several States;
•o it would be, if eoDstmetive restrictions on
the Statta were made in cases where none had
been imposed, or none reaulted from the
granted powere which were enumerated. When
KB implied power or rectrietion would thus be
added as a constructive nrovision of the Con-
atitution, it would have the same force and ef-
fect as if it was sxpnsaed in words, or was ap-
parMSt on Inspection; as a power which was
nooesaary and nniper, it most also be construed
to cart7 with It the proper means of oarrying
it into effect, by a still further absorption by
Congreas of spedflo powere raaervad to the
StAtea or by the Statea of those enumerated in
the grant to Congrcas. I<et then this principle
be OBce inoorporated in the Constitution, the
fadaral government becomes one of eonsolida-
tod powers, or ita enumerated powere will be I
wwpcd br tha Statas. When tha Um of
• Is. ad.
between them is drawn t^ eonntructton, and
substantive powers are used as necessary means
to enforce other distinct powers, the powere,
the nature, and character of the fcdenl and
State govern men ta must necessarily depend on
the mere opinions of the constituent membere
of the tribunal which expounds the Constitv-
tion from time to time, according to their vlewi
of an existing necessity. Ho case can arise la
which the doctrine of construction has been at-
t«mpted to be carried farther than in this; tba
law of New York, on which this case turns bas
but one object — the prevention of foreign pan-
pera from Ijecoming chargeable on the city or
other parts of the State; it is a part of the
lystem of Internal police, prescribing lawa in
relation to paupers. The State asserts as a
right of self- protect ion the exclusion of foreign-
ara, who are attempted to be forced upon them,
under the power of tbe laws for the rcgulatfoa
of commerce, which tbe defendant contends pro-
tects all paasengere from foreign countries till
thej are landed, and puts it out of the powar
of a State to prevent it. On the same princi-
ple, convicts from abroad may be forced into
the States without limitation; so of paupere
from other States, if once put in a vessel with
a coasting license; so that all police regulations
on these subjects by States must be held un-
constitutional. One of two consequences must
follow: There can *be no poor laws ap- [*lfl4
plicable to foreigners; th^ must be admitted
into the State, and be supported by a tax on
its dtiiens, or Congress must take tbe subject
into their own hands, aa a means of carrying
execution their power to regulate com-
«. Their laws must not be confined to tha
seaports in the States into which foreign pau-
pere are introduced; they must extend to ev-
ery part of the State to which paupers from
other States can be brought; for the power to
regulate commerce among the several States is
as broad in all respects aa to do it with for-
eign nations. "It baa been truly said that
commerce, as tbe word is used in the Constitu-
tion, Is a unit, every part of which is indicated
by the term." "If this be the admitted meaning
of the word in its application to foreign nations,
it must carry the same meaning thoughout tbe
sentence, and remain an unit, unless there be
I plain intelligibie cause which altera it"
9 Wh. IM. To my mind there can be no just
cause tor discriminating between an imported
and a domestic pauper; one is as much an ar-
ticle of commerce as another, and the same
power whirh can force them into a State from
a vessel, can do it from a wagon, and regulate
their conveyance on the roads or canals of a
State, as well as on its rivers, huvens, or arms
of the sea. In following out these principles
to their consequences, Congress may, and to be
consistent, ought to go farther. Poor laws are
analogous to health, quarantine, and inspection
laws, all being parts of a system of internal
police, to prevent the introduction of what is
dangerous to the safety or health of tbe people;
and health and quarantine laws extend to the
vessel, tli« cargo, and pasocngen. I^ws exclud-
;onvicts and paupers are aa necessary to
iw the niurala oi ilie people from comip-
and their prup^Tty from taxation, aa any
laws of the other description can be; nor do
thej intwfeie any furthsi with the regulations
IM
BaUIWIK'B OONBTITUTIOIIAL TutWI.
•f eommrrM; a^ lavs fn part materia, they
inuat •ta.nd or fall together, or some Brbitrary
unintelligible dlatlnction must be made between
tliem, which ii neither to be found in tbe Con
■tttution, or deeisiona of thii court. If tbe
principle on which brnlth and quarantine IftWR
are s'j«talneu is applied to this case, the vali
ity of the law In ([ueition li not to be doubted;
it this principle U not io applied, then it ia an
unaound one which must be abandoned, wbere-
bj the reserved powers of the States over their
internal police, must devolve on Congress, as
an Incident to, or tbe means of regulating
"eoiumerce with foreign nations," and "among
the several States." There is no middle ground
on which health nnd quarantine lawa can be
supported, which will not equally support poor
laws; nor can poor laws be declar^ void on
■nf ground that will not prostrate the others;
all must be included within, or excepted from
the prohibition.
When we recur to the political history of the
eonntrj* from 1774 to the adoption of the Con-
stitution, we find the people and the States uni-
lornily opposing any interference with their
tattemal polity by Parliament or Congress, it i
not a tittle strange that they should havi
Its*] adopted 'a &iQstitut{on which has taken
from the Statea the power of regulating pai
perism within their territory. They
foreign nations and among
the States, they also granted as a means, thi^
regulation of internal police; they little feared
that tbe powers which were cautiously reserved
to themselves by an amendment, could be tak-
en from them by construction, or that any rea-
aoning would prevail by which the grant would
be so stretched as to embrace them. We should
never have had a federal government if there
had been a declaration in its frame that Con-
gress could pass poor laws, or interfere to re-
vise or control those passed by the States, or
that Congress could legislate on any subject of
legislation over which no jurisdiction was
granted to thi?m, and which was reserved to the
States or people in the same plenitude as they
held it before they surrendered any portion of
their power. The Constitution gives no color
for such doctrines, nor can they be infused into
it by any just rule of interpretation; the tenth
Amendment becomes a dead letter if the Con-
stitution does not point to the powers which
are "delegated to the United States," or "pro-
hibited to the States," and reserve a!) other
powers "to tbe States respectively or the peo-
ple." Any enumeration of powers granted,
anv speciDc prohibitions on the States, will not
only become wholly unmeaning, if new aub-
jects may be brought within their scope, as
means of enforcing the given powera, or the
prohibitions on the States extended beyond
those which are specifled, but the implied paw-
era and implied prohibitions must be more il-
limitable than those which are express.
When the Constitution grants a power, it
makes exceptions to such as were not intended
to be absolute; but from the nature of those
which are assumed, they are not included in Ibe
enumeration, and cannot be controlled hy the
exceptions, which apply only to what is grant-
ed. When prohibitions are imposed od tlie
Statea the Constitution uaea term* wbicb 4a-
*<«
of the tenth section of the Brat article, the pro-
hibitions are positive and absolute; no power
can dispenae with them: thoae in the seoond
are qualifled; "no State shall, without the cob'
sent of Congreia," is merely a conditional pro-
hibition; when the consent ia given, the coodi-
lioQ if performed, and the power of the Stata
remains as if no condition had ever beoi exaet-
rd. Vide ante, Foole et ux. v. Fleeger. Bat it
a State lays a tax on imports or exports, then
two other conditions are imposed, the produsa
goea to the United States, and Congresa nay
revise and control the State law; Congreaa can,
however, do no more than consent or disaeDt,or
revise or control the law of the State, they have
no power to pass a distinct law, embracing tbe
same subject in detail. The original primarj
power Is in tbe State, and sobject to tbe coa-
aent and anperviaion of Congresi, it admita si
00 other restriction.
Now, when a law which imposes no tax m
imports, exports, or 'tonnage, is brought [*!••
within a prohibition by constniction, it can-
not be validated by the content of Congreai;
and if they can take jurisdiction of the subject,
they cannot be confined to mere revisioo er
control, tlie power must tie co-extensive with
their opinion of the necessity of using it, a* the
means of effecting the object. This aeema la
me utterly inconsistent with the Constitution,
which has imposed only a qualified prohibitiu*
on the power of States to tax tbe direct sub-
jects of foreign commerce, imports and exporta.
1 cannot think that it intended, or can be eoa-
strued, to Impose an unqualifled prohibillon oa
State to prevent the introduction of eonvieto
' paupera, who are entitled to no higher pro-
tection than the vessel or goods on board, whkh
are aubjeet to State taxation with the aaasait
of Congress, and to health, inspection, and
quarantine laws, without their conaent. I tmm
discriminate no line of power between tlN
dilTerent subjects of internal police, nor find
any principle in tbe Conatitutlon, or rule of
construing it by this court, that places any part
of a police system within any juriadiction ex-
cept that of a State, or which can revise or in
any way control its exercise, except as speciGeii
"-"-- regulations are not within any gisnt of
. to the federal government for federal
purposes; Congress may make them in the
this district, and other places whcra
State. Aa a power excepted and reserved by
the States, it remaina in them in full and na-
impaired sovereignty, as absolutely as thai
soil, which baa not been granted to individnala
or ceded to the United States; as a right of
Jurisdiction over the land and watera of a Sutc,
it adheres to both so aa to be incapable of «xar-
eise by any other power, without cosaioa or
usurpation. Congress had tlie aame power of
exclusive legislation in this district, without a
cession from Maryland and Virginia; they have
the same power over the sites of lorta, arnrnah
id navy yards, without a eessiop from a State
purchase with its consent, aa tbey bavo to
interfere with its internal police. It ia tbe kl^-
est and moat tovereigu jurisdiction, indispcBt-
»ble t« the aeparata uialeBoa of a SUt«; it iaa
us I
find I
Tn UATct, no, or ram Cm at Nmr Tmb *. Ifnii.
IM
Cnr VMUd by oriflBal inberant right, exUt-
betoi* tha Coutftution, renuining in )U
^tuitnde, tnapable of a^y abridgment bj ^07
of iti proriaiona. Tlu law in quution is con-
flned to nutters ttl police, it kffecte 00 rwnlft-
tioH of eommerce, it imiMiri no righta of U17
pennna engaged in ita puranita; and while audi
kwe are not extended beyoad the l^tfmato
objeeta of poliof, there ia. In my opinion, no
Gwer under the ConatEtntton wMeb can impair
I force, or bf which Congreaa ean aaaume any
portion or palrt of thia power under any pre-
text whatevei. By evenr aonnd rule of con-
atitntional and eommon law a power ezeepted
or reaerred by a grantor, "alwaye la with him
and alwaya waa," and whatever la a part of it
b tha tbuig reaerred, which muat remain with
the mntor.
If It ia donbtfnl whether the power ia grant-
ed, prohibited, or reaerred, then, by the aettkd
ralea sad comae of thie eourt, ita deciaion
ItT*] *aQBt be in favor of the validity of tlie
StaU law. S Qt. 128; 4 Pat. 025; 12 Wh.
IM; anta, 14T. Tliat anch a eourae of dedaton
b eallad for bf the Ugheat ooMlderatioDa, so
t lb •«.
one can doubt; in a oomplleated ayatem of g»T>
ernroent like oiira, in which the powers (rf
IrgiilatioB by State nnd federal gOTtniment are
dfcfined by written conatUutioiu ordained by Ua
aame people, the sreat object to be effected ia
their ext)i.Bition is barmoay in their movementa.
If a plain eollieion arise*, the aubordinat* law
muat yield to that wbidi is paramoutiti but
thia eolliaion must not be sought by the asereiae
of ingenuity or reSaement of reasoning; It ought
to be avoided whenever reason or authority will
authoriae aneh a cooatruclioo of a law, vt
magia valeat quam peraat. While this remains,
aa it haa been, the governing rule of thia eonrt,
its opinions wilt be respected, ita judgnteata
will eoDtroI publio opinion, and tend to gl*«
Strpetuity to the Inatitutlona of the eonutry.
nt if Btete lawe am adjudged void oo slight or
doubtfnl grounda, when they are not manifeat-
ly repugnant to the Constitution, there ia great
reaaon to fear that the people of the legjilatursa
of the Btatea may feel It neoesaary to provide
aome additional protection to their reserved pow-
ers, remove aome of the reatrietion on their «i-
ercdM, asd abridge those delegated to Coagress.
.dbyGoOgIC
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REPORTS
CASES
ABOUED AND ADJUDQED IB
Supreme Court of The United States,
W JAMTJABT TEBM, 1888.
BY RIOHAKD PETERS
M Lkw, ud Keportar of tbe DccWod* of tho Bapnn*
Couit of ilu United BtmlM.
VOL. xa
DigilizMwGOOgle
awGoogle
JUDHES
or Ym
SUPREMK COURT OF THE UNITED STATES
DUBma THE TIME OF THESE KEPOKXa
The HoTT. RoGEB B. T&nEn, Chief Juitice.
The Edit. Jobkpb Stobt, Aswciate Jintic*.
The HoiT. Smith Tbohfsoit, Associkte Justtco.
The Hon. Jdhit MIiKAIT, AMOciate Juatice.
The Hon. Henbt Baldwik, AsaociaU JuetiMi
The Eon. Jahxs M. Wathe, Aatoeiate Juatice.
The Hmr. Vamr P. Babbous, Auociate Juitice
The Hon. Joan CxTKon, AssociaU Justice.
The Hon. Joan IfEtnLKr, Associate Justieow
BcnjAxnt V. Emjek, Esq., Attorney-OederaL
KiOKABD PKnu, Esq., Reporter.
AuxAnora EtmrES, Esq., MarshaL
WnxiAK T. Cabbou,, Eaq., Qerk,
.dbyGoOgIC
RULKS OF COUKT.
nii1i> 4S. In all cnHca, where otiy suit »hiill
be dismiBscd in tliis court, cxcppt where the
distniraal alia 11 be for want of jurisdiction,
costs shall be nHnwpd for tbc defendmit in
error, or nppellce, as the ciiEe maj be, unless
othcrwinc agreed bj llie parties.
Rule 40. In all cases of alTirniBnceB of an;
jnilgment or deeree in this court, costs shall be
nlloived to the defendant in error, or appellee,
as the cant may be, unless otherwise ordered
by the court.
Rule 47. In all cases of revereals of any judg-
ment or decree in this court, except where
tlic reversal shall be for n-ant of jurisdiction,
costs shall lie allowed in this court for the
plaintifT in error, or ajipellant, as the case may
be. unless olherwisc nraerd by the court.
Rule 48. Neither of the foregoinj^ rules shall
apply to caFics irliere the United States are a
parly; but in such cases no colts shall be al-
lowed in this co)trt, fur or against the United
States.
Rule 40, In all cn^es of the dismissal of any
suit in tills court, it aliall be tlie ditty of the
issue a mandate, i
below, for the purpose of informing; eurh court
of the proceedings in this court, so that fiirlber
proceedings may be had in such court as to law
and justice appertain.
Rule 60. ^^'hen costs ore allon-ed in tbit
court, it shall he the duly nf the clrrk to insert
the amount thereof in the body of the mandate
"or other proper process sent to tlie |*rl(l
court below, and nnnei to the same the bill of
items taxed in detail.
Rule 61. All motions hereafter made to lU
court shall be reduced to nTiting. and elinil eo«-
tain a brief statement of tlie facta and objeda
of the motion.
Rule 62. The court will, at every future ses-
sion, annonnee on what day it will adjourn, at
least ten days before the time which sball he
fixed upon; and the court will take up no caM
For argument, nor receive any case upon print-
ed briefs, wltliin tliree days next before Ihi
day fixed upon for adjournment.
.dbyGoOgIC
RITIBEVCE TABU
m noB OAan
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101
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1018
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108-104
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104-107
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117-1 IB
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184-m
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180-138
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41-44
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68-70
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.dbyGoOgIC
awGoogle
THE DECISIONS
Supreme Court of the United States,
AT
JANTJART TERM, 1888,
ANDREW N. LAUB.
! United BtBtea tnttttattd in action on ft
Dry transcript of the aceouDta at tbe deteod-
who had been a elarfc In the Treaiurr Depart-
. l>nd ■■ (Dch, and aa ueot Doder tbe ■nlnor-
t the BecretarT cf the Treamrr, bad dlabunad
c moDeya under Bereral taeadi of approprla-
•ome. aneclflc and temporary, othm of a
pCTiDBDent and lencral character. On tbe
of the 30th of March. 183S, the trsaeary
la> WM conaamed by tire, which dnlroied alt
Dole, papera and Toucnera. relating to the Alt-
'inenta made hj blm. Dnrlni the period, In
I tbe defendant bad performed the dutlrt ot
:. he had wttJed bla aceonnta with pnnctual-
lad to tbe aatlafactioD of tbe accounting offl-
■ qoeatlon* of CTldenca, preaanted !■ tlM
, tbe tonrt
I the
t aald : Tbla, tbCB, prtaenta n caae,
booka, papers and fonchen, «t tbe
int. relating to his dlaharwment* and ngeo-
iT« been dntrored by Dra, wltbont anr mult
i: and la, of neceaalty, open to the admlailon
«nllar7 artdence. And nndar the general mle
tdence, he might be required to produce the
trldenca wblcb the uatare of the caae, under
Ircuowtancea, wonld admlL Thia rule, bow-
d»ea not reqnlre of a part; the production ot
ttrongtat poaalble erldauee; but innat be
'gorecned, in a great mer
•a ot the caae ; and must _.
latter In contruTeray ; and —
leare It open to the anaplcloB or preaunptloo
anything left behind, and within the power
t pkrtj, would, U produced, make Kgalnat
ipoaa a debtor ahonld pqt Into tbe luuida ol
a bearing apon
l« agalnat hi —
aoch demanda; and to be paid In amall anma
nnmerona claaa of crcdlton, acattered orer
I* and distant parte or tba eonntrj : and It
1 he Dade to appear, that he had dlaburaed
e none; thua put Into bla handa. bat that tbe
en for anch payment had been dntrojed b;
rlthout anT fault of bis: and ha raald not aa-
i of the eredltora to whom pa;-
t thHl
ited to hia principal, bj anj o
to whom parmeot waa to b.
, after tbe lapse of three 7ean
ipanlrd b; proof, that he bad
D claim
r the
«, — Am to laat papar, and aeModar; nidenee
cwtanta, m* note to 6 L. ad. Q. ■. «14.
placed In bla band* b; Ua principal, for the nur-
poaes tor which be rieelTed It ; and protect him
evidence certain paaaana from a public document,
meotloDed In the bill ol ezcaptlona. Tbe plalntllta
eonnael consented to Its being read, as the defrnd-
■Bt'a cTldencc And after the aame waa read, tbe
SlalntHTs' counsal reqneaced the oonrt ti
be jury that the conreraatlon r' "■'
with Hr. Dickens and Hr. "-' — -
eiecntlTe document waa ui. .. .
ot the facta atated In anch eonrersatlon ; wblcb
court refused to glTe. The court aald: Tba eo-
tira document referred to. Is oot Set ont In tbe bill
of eiceptloni ; and from what la itated, no eonver-
■atloB of tbe eiwracter objected to appeara. Bat
.a luMmet
.( the defendant
. U'LcBD, read from tba
the evidence waa admitted hr eoaaent.
tlffa were entitled to hare the whole uocumeiii
read : and It waa all In erldence before the conrt
and J07. But the obiectlou, on the in'onnd that
sonM of the facta atated were only bearn; erl-
denee, falls. Tbe document, so tar aa It appeura
IN tmt (ram tbe Circuit Court of the United
StfttM of tlM Diatriot of ColumUa in tbe
County of Waahington.
The United Statu Instituted two acHona of
aaaumpait against tbe defeadAnt, to recover the
balance! stated to be due to the United States,
on tranacripta regularly certified hj tbe Treas-
U17 Department. The fliat account was with
of the TreasuTji" and chargea a balance due to
tba United State*, and those warrants drftwn
br the Secretarj of the Treasorr in favor of
the defendant, amaimting, together, to four
thousand dollars. It erediti a payment of two
hundred and forty-one dollars and £ftj-eigbt
cenU, paid on the 22d July, IBSS, leaving a
balance due to the United SUtes, on the 14th
November, 1833, of three thowand seven hun-
dred and aeventy-slx 'doUan and fifty- [*S
eight canta. The other aeoonnt la agalnat the
duendant as "superintendent of the southeast
oseouttve building. In relation to the compen-
sation of superintendent and watchman of aald
buildinKl" and after charging a warrant of four
hundred and twenty-Ava doTlaTS, and crediting
one hundred and fourteen dollars and ninety-
cents, paid July 22d, IS33, olaima a bal-
ance of three hnndrM and ten dollars and three
eenta. The whole mim oUmed to be dna to
« tTT
Btmsm Uowv or trv Umiiu ^ta^bs.
the United Stktea, ontha two trauKrlpta, w«a
four thouiand And «ig)it;-six dollftn And flft7-
one cents. In thfl other action, the Unitad Statei
claimed leven thoiuand seven liundred and
aiitj-nine doFlart and tweatf'flTe cents. This
account is for a treasury warrant for two thoU'
«and dollars, and for five thousand seven hun
dred and siztj-nine dollars aud twentf-flvt
eents, for balancca dua bj the defendant as
"superintendent of tha southeast executive
tuilding," in relation to eontinKent expenses
of the aaid building, to alterations and im-
lirovements thereof, and to inclosing the
rnds attached thereto, and also as "agent
expenditures in relation to Insolvent debt-
ors," and in retatlon to mauufactures.
The defendant pleaaed non assumpsit to both
actions, and the cases were tried together, in
the Circuit Court; the Jury found verdicts for
the defendant.
Three bills of exception, entirely similar,
were taken fn eaoh ease, by the plaintiffs, and
judgment being given for the defendant, tha
plaintiffs prosecuted this writ of error. The
material facts of the ease in the bills of excep-
tion are stkted in the omnton of the court.
The case was argued by Mr. Bntler, the
Attorney -General, and hy Mr. Coze for the de-
fendant.
Mr. Justice Thompson delivered the opinion
of the court:
This case comes op on a writ of error from
the Circuit Court of^ the District of Columbia
for the County of Washington.
The action is founded upon a balance certi-
fied at the treasury against the defendant for
eleven thousand eight hundred and lifty-flve
dollars and eighty-six cents. A verdict was
found by the jury for the defendant, and upon
the trial several bills of exception were taken to
the inatructinns given by tue court.
The main quesuon in the case related to cer-
tain credits, which the defendant claimed to
have allowed to him; and which had been re-
jected by the accounting officers of the treas-
Mf7.
4'] These credtta, so claimed and rejected,
(onslsted of three Itema, aa stated fn the defend-
ant's claims.
1st. Four hundred and ninety-three dollars
and stiteeit cents, ^d the Bank of Metropolis
for advances to inaividuals.
2d. Three thousand eight hundred and fifty-
two dollars and fifteen cents, for drafts drawn
by the Bank of the United States in favor of
individuals, between the let of October, 1832,
and the Ist of April, 1833.
3d. Two thousand nine hundred and fifty-
four dollars snd forty-three cents, claimed as a
credit for dieburBements to sundry psrsons,
whose names were not recollected; the vouch-
ers, as was allege], having been destroyed in
the conflagration of the treasury department.
After the evidence in the cause was closed,
the plaintiffs, by their counsel, prayed the court
to Instruct the jury that the d^endant waa not
entitled to the credit claimed for the three
Items above mentioned; which Instmetioas the
eoiirt refused to give. But, upon the prayer of
the defendant, gave to the jury the following
tastmctioni
"That if fioBi the •vUetM* aforeaaid they
shaO hdiere that the defendant haa falthtnll;
paid over for public purposes, and within t)i*
sphere of Me official duty, all the public moae<
which came to his bands, then the plaintiffs
were not entitled to recover;" and bills of ex-
ception were taken on the part of the plaintiffs,
to the refusal to give the instructions prayed
in their behalf, and to the instruotiona given ob
the prayer of the defendant.
There was another bill of exceptions takei,
which will be noticed hereafter.
It wiil be seen from this ststement that the
instruction prayed on the psrt of the plaintiffs
was a positive direction to the jury; that tht
defendant was not entitled to the credit claimed
by hira for the three items alxive mentioned.
If the oovrt erred in refusing to give ttda ta-
itruction, it must have been either by reaaca of
tome insuperable objection in point of law
against the claims, or because there waa as
evidence whatever before the jury in support
of them. There is no pretense for the inatme-
tion prayed on the first ground. No objecUoB
was made to the admissibility in evidence of the
claims, if any could have been made. Bat
none did exist. It was a claim made bj the
defendant for disbursements or payments made
by him, in discharge of his appropriate dutiea
under the trust assumed. And the claims, if
necessary, under the Act of the 3d March, li>T,
(of which there may *he some doubt), had [*>
been presented to the accounting officers of ti»
treasury, and disallowed; and was, of coune,
open to be set up on the trial of this cause.
If, therefore, the court erred in not giving
the instructions asked on the part of the plain'
tiff, it must have been on the ground that no
evidence tending to prove the matter In dispute
had been given to tne jury. For it is a point
too well Bcttled to be now drawn In question
that the effect and sufficiency of the evideaee,
are for the consideration and determination a<
the jury, and the error is to be redressed, if at
ail, by application to the court below for a new
trial, and cannot be made a ground of objectioa
on a writ of error. All the evidence on tb«
trial was admitted without objection; and the
instructioDS asked from the court did not ptriat
:o any part of the evidence as inadmissible or
rrelevant; but for a general direction upoa the
whole tvidence that the defendant was not «■-
titled to the credits olaimed by him for tbe
three Items above mentioned.
The general outlines of the case, as stated ia
the bill of exceptions, arci That the defendant
had been a clerk in the Treasury Departnieat
of the United States, and as such, and as agent
under the authority of the Secretary of the
Treasury, had disbursed public moneys nndcr
Several heads of appt^riation i soire, spcelfc
and temporary, others of a more permanent and
general character. That he was required to
take an oath (aitbfully to perform the dutiea of
his office; and had performed such duties dar-
ing the years 1831 and 1832, and up to tbe 3»th
of March, 1833. That on the ni^ht of tbe MNk
of March, 1833, the tressury building waa coa-
sunied by fire which destroyed all the boofca,
papers and vouchers, relating to the pttbSe
business of the department. That, bj the eonrae
of biisineas, in conducting bis afceBcy, the
money was placed in his hands hf wartasta
from the Secretary of tbe Treasurj, in Us favw
P«Mra IS.
UM
Tm UvnxD BiATKS T. L&ua.
« arati whkh wwrmnU wen iuued b7 the
MenuuT, upon tlie requiiltion of the dsfendftnt,
•tating tlie purpoM for nbich the inoiief was
required, •nd at the discretion of the eecretary.
The vunnta thus tieued were charged to the
defendwit on the booki of the trEMurr, uid
pUoed to hit credit u agent in the Brancn Bank
of the United States at Waghington; and the
Boneft drawn out of the bank hy the defend-
ant'* cbecki, as auch agent, in favor of the in-
diTiduaU respective])', to whom the same was
pMjable, which was Mcording to the UBual
praetlee of other disbursing officen. And it
Bppeared that after the destruction of the treas-
urj building, bj an order drawn by the Secre-
tary of the Tr«Mury, all the moneyi standing
•*] *to the credit of the defendant in the
hnnch baid, on the 20tb of March, 1833, were
drawn ont, except ten dollan. It aleo appeared
that the books of the bank do not famisn any
inforniation ihowing the names of the |>ersons
or the character of the services for which the
BOneys were disbursed; but merely exhibit the
dates of the checks, and the amount of the
money for which they were drawn respectively.
The defendant alio showed that he kept no
private account in the bank, nor any other ac-
count than as agent. That, during the period
in which he liad performed the duties of sud*
■cent, he had settled his accounts with punctu
«1{ty, and entirely to the satisfaction of the ae
counting officer*. That such accounts, so far
m» specific appropriations had been made, were
•ettled Mf to the 1st of January, 1833, and
Ute other* up to the 1st of October, 1S88; and
tbkt for all the voucher* accompanying such
■ettlementa, so far as the same extends, eor-
reapondlng cheeks appear in the bank state-
,nieiit. Such being the general outlines of the
caae, and no dispute, except In relation to the
three items above mentioned, the question arise*
whether there was any evidence before the Jury
Mmdudng to prove the disbttnement* of the
defendant thus claimed.
All suspicion of a fraudulent misapplication
by the defendant of the money placed in hi*
hands was disclaimed on the argument, and the
question seemed to resolve itself Into the in-
Snlrr whether, under the evidence in the cause,
tic defendant had entitled himself to relief in a
court of justice, or most he turned over to leg-
telaUve aid.
This, then, presents a case, where all the
books, paper* and vouehen of the defendant,
relating to his disbursements and agency, have
been destroyed by Sre, without any fault of
hia; and is of necessity open to the admission
frf secondary evidence. And under the general
rule of evidence, he might be required to pro-
duce the best evidence which the natnre of the
caae, under the drcumstances, would admit.
Tbia mie, however, does not require of a party
tbe prodnetion of the strongest possible eri-
daacc; but must be governed, in a great meas-
ure, I7 the circumstances of the ease, and must
have a bearing npon the matter in controversy ;
knd atust not be such as to leave it open to the
■aapidoa or presumption that anything toft be-
hind, and within the power at the party, would.
If produced, make against him. But the evi-
e i* not open to the obJeoUon
^he beet evii"
m€ tlw par^i a* a^iaetlon o
made at the trial: and the ease is then bronaht
to the single point, was there any evidence be-
fore tbe jury conducing to 'support the [*7
claim for the disbursements, wUch were re-
jected by the accounting officers t
With respect to the four hundred and ninety-
three dollar* and sixteen cents, claimed under
the charge of moneys paid the Bank of Hatrop-
olis for advances to individuals having claims
against the government, it was proved that it
was the practice in the Treasury Department
to pay the clerks, etc., monthly, when there
were fund* out of which they could be paid;
and that it was usual, when such money* were
due and payable and there were no *ueh funds,
or when the appropriation bill had not been
passed by Con^ss, for the defendant to give
such as required it a ccrtiScate, showing tbe
amount due, and that it would be paid when
the aopropriation bill should pass. Upon which
certineate the holder would obtain either an ad-
vance, or discount from the banks; and that
tbe defendant had given several such eertill-
cates, which, in the winter* of lB32-te33, had
been brought to the Bank of Metropolis, and
money paid on them: and that sometime in
March, 1B33, after the appropriation bill had
passed, all the certificates held by the bwnk
were carried to the defendant, who gave in
lieu of them a check upon tbe Branch Bank,
which had been paid. But the witness did not
recollect the amount paid, nor the names of the
person* to whom the certificates had been given,
but only that there were several of them, and
tbe amount considerable; but that the books of
the bank contained no Information on the sub-
ject.
This wa* certainly evidence, and that, too,
not of a verv slight character, conducing to
prove the disbursement claimed. The preeise
amount was not proved; but all the defendant'*
vouchers being deBtroyed, and the bank book*
furai*bing no information on the subject. It
was a question for the jury to decide as to the
amount thus paid, taking their evidence In con-
nection with the other evidence in the cause.
With respect to the claims for drafts drawn
by the Branch Bank in favor of individuals, be-
tween the 1st of October, 1B32, and tbe Ist of
April, 18S3, the evidence was that sometimes
wnen money* were to be disbursed at a distance^
the defendant would obtain draft* from the caali'
iei of the bank, upon other bank* or branebea
where the mono)' was disbursable; which drafts
were drawn in favor of tbe defendant, and ia-
dor«ed by him to the party who wa* to receive
the money, and remitted to him by mail; and
that such was the ueual practice of other dis-
bursing officer*. And it appeared from the
**Utement of the Branch Bank that the ['»
drafts of thl* description, drawn in favor of
the defendant, between the let of October. 1B32,
and the first of April, 1833, corresponded In
amount precisely with the sum claimed. It does
not appear what became of these draft*. Bui
in the natural course of bnsines* tbey would go
into the po**e**ion of the person to whom pay-
ment was to be made; and a receipt for the
same returned to the defendant, which have
been destroyed by the fire. This evidence, al-
though not conclusive, aifarded preeumptioa
that such was the fact. It wa*, at alt events,
» juij.
BOPUkl OODBT 01 TBK UtnTS) SUIM.
la
^th rupect to the other oUm of two thcu-
nsd nine hundred uid fifty -four dolUrt and for-
tf-three centa, there ia do evidence particularly
pointed to thh item. But there waa evidence
of k more general character, which, under the
oircuinitancea of the caM, at least afforded
•ome grounds for the eonctuiion that tUe money
had been applied to the payment of ctaima on
the government. It itanda chsr^ in the ac-
count presented to the accounting offlcei* of
the treasury aa a claim for disbursementa to
■undry persons, wboae names could not be rec-
ollected; the vouchers having been destroyed in
the burning of the treasury Duildlng. Tlie jury
had evidence of the destruction of the vouch-
ers for such disbursements, if any ever existed;
it wu in evidence that the money placed in the
defendant's hands, was by means of wuruita,
drawn by the Seu^tary of the Treasury, upon
the requisitions of the defendant, stating the
purpose for which the money was required—
the amount resting in the discretion of the sec-
rstary-nand tliat the warrants thus drawn wore
passra to the credit of the defendant, aa agent
m the Branch Bank of the United SUtes nt
Washington, and drawn out by his eheclcs, aa
such agent, in favor of the individuals to whom
the same was payable, and that all the money
bad been drawn out except ten dollars. Under
such circumstances, where is the ground upon
which any misapplication ot the money la
chargeable upon the defendant? If he has dis-
bursed bU tne money he haa received, for the
purposes for which he received it, the govern'
Blent can have no claim upon hinL The amount
of money placed in his bands, waa governed
which it was to be applied; and waa, of
confined to disbursements known to the More-
tary, and warranted by law. And it waa In ev-
idence that, by the practice of the department,
DO persons entitled to payment, through the
agency of the defendant, could receive pa^-
•*] ment from the government 'unless their
accounts were accompanied with the oath of.
the claimant, or other satisfactory evidence
that he had not been paid. Add to this that
no claim haa been made upon the govcnunant
for payment of any demand falling under the
agency of the defendant. Does not this afford
table ground to conclude that he had ap-
erents, it was evidence conducing to prove It,
uid the effect and sufficiency of It was a ques-
tion for the jury.
It la not intended to apply to this case a dif-
ferent mle than would tfs applied to any other
•KHQUf for the disbursement of money, under
Uke circumstancea.
Suppose a debtor should put into ths hands
of an agent a sum of money for the payment
of specified demands against him, and the
amount limited to sneh demanda, and to be
paid in Bmall siuna to a numerova dasa of erad-
Itora, acattered over varioua and distant parta
of the country; and it should be mad* to ap-
pear that he had diaburaed all the mon^a thus
put Into his hands, but that the Touohora for
•ueh payments had been dMtroyed by fire,
without naj ikuU of his, and ha could not w
eertala the name* of the eradltora to whs*
Eyment had been made; hut that no elalm had
en presented to his principal by any one of
the creditors to whom payment waa to be
made by the annt, after the lapse of thne
years; and all thia accompanied t^ proof that
be had faithfuUy dlacharged the dutlea of a Kk*
agency for seworal years, and regularly ac-
counted for Us disbnTsenenb: would it not af-
by hie principal, for the purposes for which he
received it, and protect hun againat a suit fat
any balance t
Considering the number and ahaT«cter ti
) the burning of the
of opinion that the oonit
did not err in refusing to give tbe inatruetiona
firayed on the i>art of the plaintiffa, nor in giv-
Dg the Instructions to the jury that if from the
evidence they should believe that the defendant
had faithfully paid over, for public purpoata.
and within the apbere of hla official dutiea, bH
the public money which oama to his hajuU, the
plaintiffa were not entitled to recover.
The aecond bill of ezceptlona waa abftB- [*!•
doned on the argument, and need not be noticed.
A third biU of exceptions waa Uken Kt the
trial, by which it appears that the defendant
offered to read in evidence oartalD paaaages tnaa
a publie document, mentioned in the bUJ of ox-
ceptiona. The plaintiS'a counaal conaentod la
Ita being read aa the defendant'a eridence. And
after the aama waa read, the plaintUTa counad
requested the court to instruct the Jury that
the conversation of the defendant wltA Mr.
Dicldna and Hr. HXean, read from the czee-
utive document, was not avldenoa to tbe jury of
the facts stated in such eonrersation; wtueh the
court refused to give.
The entire document referred to Is not sat out
in tba UU of exceptiona, and from what la
atated, no eonveraatlon of the character ob}aetcd
to appear*. But the evidence was admitted by
consent. The plaintiffs were entitled to have
the wbolo document read, and it was all in e*-
ideno* before the court and jury. But the ob-
jection on the ground that some of the facts
stated were only hearsay evidence, falla. TIm
document, so far aa It appeara on the lull et
exceptions, contains no aueh eonveraatlon. TUa
instruction was, therefore, properly refused, and
the judgment of the court nelow U a
■LESSEE of OABRIBL ETV&'nn, and r*a«
Uary hiM Wife, PUIntUb in bror.
BJoctment— frand of admlniatintar-^^nd o«f-
alanUo in eottrt ot Uw U wdl aa aqal^
XlU UCtWU OK BWAVZB R UZ. T. BUBKB » Al.
U
at •heHF* Wile not bonK Ade pur'
nnlea* be paja price — ptiintlff In ej«ct-
' show legal Utia.
k •OD OllTer, wbo adnilDUtcred to bit
bad alio a aon vbo hid married In lltatlulppl, tod
wb* died In 1T0B, ImtIbk bd Infaat daunbler, 011-
nr Omubf Bled bo IdmbIoij a( tb* aniaU ol bli
father, and ocTtr Kttlcd an leeaunt aa adinli
1 LOte,
1 fad
of tb( Mean. ^nni. for
beldlij John OnnibT, In bU lltetlmi. In the lult
i^lnsl farm for thia dpfal, Mr. Jimei Rou acted u
tb* Bttoni«7 tor tbe plalnilh ; tod In 182T (he real
HiBlc wa* lOld under u uccntloa Imom br Ut.
Bou OQ the ludiment, (od wm purchawd bi U"
Rou for three tGoiiuod do1lan:^e hBTins. befoi
tbc pnrcbBie^ flTcn OIlTcr Ormitv'tD nnjtntand,
.__ ritr :
HenrB. reoDi : Bad on um
, . flTcn Oliver Ormrtv to nndentand,
■nd hBTlnr publlcJy deelaicd. that be would bold
the properlj ai b iecurlt/ for the •"-■■• •*■— *" "■*
,jyinent of the debt,
that ba would nllDqulBb all claim to It. In April,
■~~\ OllTer Ornul>7 paid the debt to Hr. Hoh, and
ce of the propertj. At the lame
receipt^ aa admlnlit
t a conveirBnee ofth
• tie kBTe B receipt, i_ __
r, to the aherlir, for tbe balance Ot tb« thn
D tbe wife Of the plalntl
clectment, wbo waa tb* dansbter iS Joho Onnnbr,
fan., atatlnc that hia father had not left mere
property than would paj his debts. There wua erl-
Seuce Ibat leii than on* tenth of the real eaUt*
weald hare aatlaflcd the Judgment for which the
land wai aold to Mr. Kam. Mr. Rob* bad no knowl-
•ds* of an; trnudultDt parpOM ot the adiolnlatta-
tor. The dauKhter of John Ormaby. Jun., barlal
laterDBnied with Qabrlel SwajM, with her haa-
baiid, broucbt an cJcctmcDl to recover a moletj at
the land which waa hpid br Oliver Onnebv, under
tbe coavejaaee from Ur. Roh. The court Ir-'—- *
•d tbe Jurv that "In matu
law and chancerj bave a coocurreaL juriBuicLiuii.
It la, tberetore, within the province ot tbe Jur;,
U Inqnlie whether tbe eoodnet and proceedinn of
Oltvar Ormabr, whereby the IhbI title to the prvD-
•rtr la dlapnte became veatca In blmaelt, for bla
eaciaalve oaa and beneflt, were In fraud of bla eo-
tanaat, U*rj Swane ; and If tbey were, tbe rerdlct
onipit to be tor tbe platntlta." "That tbe fraad
ibould be broQiht to the knowlcdn of Vi. Boea,
and that. It Hr. Roaa took a valld^ title under tbe
aberllTB deed, the title ot bla vendee would be (ood,
nrt* of
under tbe drcumatance* dlacloaed I
the erl-
Bt Tin Coobt: Wc think ibat tbe Jndjre erred
In cbarrlnR the Jnrr tbat the deed to OrmebV wa*
valid, unleea the; abould dad that Roaa participat-
ed In the trand.
It la dear tbat a purcbaMr at aberllTi aale can-
Met protect himself agalnit a prior claim, et whlcb
be bad no notice 1 or be held • ban* dde purcbaaer
■alrae be aball have paid the moner.
Tbat fraud la coKniaable In " — "* " — —
well a
In a
ruled In tbli conrt.
nceri under tbe lawa
_ . enniTlvanlB, an actloD ot ejectment la iua~
talned. or an enntuble title, bv tbe eourt* of that
1S<) State. Such la not the •practice In tbe
coorta of the United Butea, and It the plalntlSa In
an ejectment fall to abow a paramount legal title
IB tbenueivea, tbey cannot recover.
principle. It haa often b
At there [
Tlv
D ennll
n« tv, M aUted tn tka q)lnioa tt the
court, WM an followii
An aetloti wu inatitut«d la tk« Diatrkt Orart
•r the United 8Ute« for tb* WMtmi Uetriet of
Pennnylranin, by tbe laeaon of tbe pUntiffe,
Qabrtol Swajrw and wife, dtlieiui of tb* State
of Iflaainelp^, for the rwOTcry of a tract of
hnd In AUegbnn/ County, In the StnU of P«nn-
sylraaia, to Ontober aualona, 183).
Tb* platntUTi and the defendant* elalmed the
■■ad MBdar • daad IMa Jobs Pon, and John
Penn, Jim., propi^ctarle* of Paimayln^i tha
land forming part of one of the manor* reewrad
by the j^roprietariea. John Omeby died !■•
teatate in 1T0I, and left a eon, named Olivev, a
daughter, Sidney, who intermarried with John
Qrtgg; a *on named John, who nuuried and
died la the State ot WaeiBBippl, leaving a
daughter Mary, an Infant, at the IJm* of hi* da-
eeaae, and who haa einee intermarried with
Gabriel Swayxe, tbe plaintiff in error. In De-
cember, 1807, Oliver Urmeby admiiil*t«red to
the eetate of hi* father, John Ormeby, and cava
tha uBual adminiatratlon bond*; bnt he filed no
inventory of tb* eetate of the Intestate; nor did
he, at any time, eettle an acoount of hi* adnln>
l*tratlon of the estate.
The estate of John Ormeby, deceased, waa
indebted to John Penn and John Penu, Jun.,
for the land purchaaed from tlienl, in the aum
of four hundred and liity-aeven dollars and
*ixty-four cents; end on the eth of September,
1826, the administrator eonfeaaed a judgment
in their favor for the amount of the debt; upon
which iudsment and execution was forthwith
issued by Mr. Roaa, their attorney, and the land
of John Ormsby was levied on and sold; lb,
HoHS being the purcbaaer of tbe same for three
thousand dollara. At the time of the purchase
of the estate, Oliver Ormsby, the administrator,
was absent. Mr. Ross declared, in the moat
publie manner, that Ormaby, the administra-
tor, or any of the family of the deceased John
Ormsby, might redeem the land at any time,
on the payment of the debt and interest. Be-
fore the sale, Oliver Ormsby, the administrator.
ued in poeseesion of it; and at the time o_ .
sheriff'* Bate, or when the deed for tbe land w
made to him by the eheriff, Hr. Roes paid no
money. The rents and profits of the land were
continued to be received by Oliver Ormaby;
and in April, IftSI, he paid to Jame* Roaa, B*a.,
the *um of fire hundred and twenty. three doi-
latn, tbe amount ot tbe Jitdgment, and the in-
terest due thereon, and took from him a eon-
veyance of tbe land in tee-aimple; giving to tbe
sheriff, at tbe lame time, a* administrator of
John Ormsby, a receipt tor the aum of thre*
thousand dollars, less five hundred and twenty-
three dollar*, the amount of the payment t»
Jame* Roes, Esq., in satiafaction of the debt
due to the Hesars. Penns. The laud consist* of
eighteen coal-hill lots, and of thirty-flve aorta
of land adjoining to them, anJ is now of great
value- It wa* highly valuable at the time of
tbe sheriff's sale. The defendants were in po*-
•esaiou of the property aa tenant* of QU*«r
Ormaby, when the euit waa oommanced.
In March, 1828, In answer to an application
for infonnatlOB a* to the v^ue of tbe eatate of
John Ormsby, by Mn. Swayaa, on* of the lea-
*ora of the plaintiff, OIItot Ormaby wrote: "My
father, at his death, wa* not poeseNed of mora
property than a eufficiency to pay hla dabta,
having, from time to time, aold to Indivlduali,
and conveyed to hie children." Bvidnce wM
ateo given conducing to prove tbat tiy a aale al
two of t)w eoal ioU, tbe Judgmaat eonid bftv*
been aktiefl*^
■■1
»
Simna Own or nut Umn Buns.
Tba au* WH tried At Ontober Tsrm, IBSS,
and « verdiet uid judgnient wu rendered for
the defendiiQta, under we charce of the diatrict
Judge. The plaintiff! Gxc«pted to the opinion
of the court, and protecuted thU writ of error.
On the trial of tne ouie, the couniel requeeted
tb« di*triet judge to chu-ga the jury, "in mat-
tera of fraud, o«Mirtt of law and chancery
h«Te a cofleurrant juriediction. It U, there-
fore, within the prorince of the Jury, to Inquire
whether the conduct and proceeding! of Oliver
Ormabj, whereby the legal title Ui the prop-
wty in diipute became vetted in biinaeli, for
kb oxcInaiTa ute and benaSt, were In fraud of
the rifhta of IiIb co-tenant, Hary Swayie; and
tlMT were, the verdict ought to )m for the
pialntlffi." The court cave the Inatruction as
nqneated, wflb tfaia qualiOcBtion, tliat the fraud
UTi deed, that the tltla of hia vendee would be
good, under the drcuxutancea dlacloaod In the
•vidance.
14*] "The argument of Mr. Fettennin, for
the plaintiff* in error, and of Mr. Watta, for the
defendant*, wa* aubmittod to the court in writ-
ing, at the cloa* of January Term, 1S3B.
Hr. Vettermak contended that it i* now an ad-
mitted maxim at law that fraud is cognizable at
law a* well aa in equity; and whether that in-
luiry can be made in an action of Bjectment, le
I be queation. Thl*court,inln thecaaeof Sayre'i
tcisce T. Ormaby et al. 8 Petera'a S. C. E. 2S2,
■ay*, "it ii an admitted principle that a court
of law haa concurrent Juriadletion with a court
of chancery in caae of fraud; but when matter*
allied to be fraudulent ar* loveatigated in a
court of law, it Is the province of the Jury to
find the facta, and determine their character,
under the direction of the court." It i*
worthy of remark that that wa* an aetion of
•Jeetment.
We find, alao, that ai early aa Fermor'* eaee
(S Rep. 77, A.) the principle aettled, "that
fraud vitiate* all trantactiona;" |0 in 10 Johns.
40£, Jackaon, ai dem. Gilbert v, Burgett, which
waa an aetion of ejectment, Kent, Chief juatice.
In deliTering the opinion of the court, aay*,
"oourta of law have concurrent Juriadiction in
■11 caae* of fraud. Fraud will invalidate in a
oourt of law aa well aa in a court of equity, and
aanul every contract and conveyance connected
with It; a fraudulent eatate ia as no estate in
Judgment of law." Lord Mansfield, in the case
of Cadogan v. Keunett, Cowp. 434, aays,
"the principlea and Intent of the common law,
a* DOW universally known and understood, are
w atroDg against fraud in every shape that the
eommon law could have attained every end ef-
faetnated by the statutes of Elizabeth;" and the
•ama Judge, In Bright v. Evoon, 1 Burrowa,
MS, remarks, "fraud or covin may, in judg-
MMt of law, avoid every kind of act." Courts
of aqnlty and oourta of law have a concurrent
tarladiation to suppress and relieve against
fraod. So, Judge Parsons, in Boyden v. Hub-
Imrd, 7 Haaa. 112, "but when a court of law
haa n^ularly the faet of fraud admitted or
proved, no good reason can be assigned why
relief should not be obtained there." So in IS
John, ill, which waa the oaas of an ajaotment
ta «n aUefed fraud in a aherilTs sale, the same
frindpla U expressly re-aOrmod; also, in Flem-
ing r. Sloeum, lb. 408, 404; and In rwsjtia-
nia, in 2 Watt's B«p. 66, Gilbert v. Hoffman
which was an action of ejectment, Jiutiee Bog-
;•£
interest intended to be defrauded."
taioly not the duty of a court *to protect ['It
the interest of a person who has been detected
in an attempt to fraud."
'The devisee or heir whom the veadee at-
tempted to defraud {for the attempt affects Um
as well SB creditors), aaica the aid of the statute
against thia fraud alent conveyance, oa the
ground that his title cannot be affected ^ a
fraudulent aak. His remedy is strictly at law,
for fraud is cognisable in a court of eommea
law a* well as in a court of equity. A fraudu-
lent vendee haa no equity, and is not en-
titled to claim the protection of law on that
ground." In this ease, as well aa in the c
V. Bryson, S ffinney, 63, H; S Cowen. ff,
Johnston's Ferrr v. Harvie, E Penn. K^
were actions of ejectment. In wfaidi the
question of fraud waa considered i
matter of Inquiry.
according to the oplnb
of the District Court, Mr. Roas I* guilty for
Unless, I
ding to the opinion of the jvdgs
fraud, the plaintiffs c ,
how fraudulent the Intentiona and condnet of
Oliver Ormsby may have been. The beir af
John Ormaby cannot recover from Oliver
Ormaby, unless she proves that Mr. Rosa waa
partieeps crimini*. The debt for which the
-toptrtj was sold waa due at the death of John
Irmaby; It* existence was known to OUw
Ormaby, his administrator j he promised to pay
it in 1820.
In Pennayivania, landa have alwaya bom
assets for the payment of dabta. Graff v.
Smith's Administrators, 1 Dallas, 481; Morria
Smith, 1 Yeates, 2S8. Bither to an aetion ef
debt, as a cause of action, or when resort most
be had to scire fadaa, after the death of the
debtor; It Issue* not against the helra, upon
relates to the payment of tlie debts, is ths
trustee of the real estate. Bogen v. Rogera, 1
Hopkins' Chancery Reports, &fl, 627, a caaa
very aimilar to tlus, and in Brown v. Webb, 1
Watts' ReporU, 411.
How doe* it become material to show that
Mr. Ross was guilty of fraud t
It is alleeed that Onnsbjr waa guiltjr of aa
attempt to defraud his eo-heira out of tUs prvp-
ertj; and if he was guilty of such, how caa
his situation be either benefited or injorad
by the fact that Mr. Soaa waa or aras aot
equally guilty of the fraud! The law ahhosa
all kinds of fraud, whether c^cn or by any kni
of indirection; and when the action ia agai^t
the party guilty of the frMid, or hia heirs. It i*
*not for him or hi* beir* to ahelter them- [*!•
selves from the coasequeuces of Us own wicked
designs. As tiixij aa TTeaham*B eaae, > Report^
110, in an aetion against an adrnjaietrator. It
_ ..int af
the case, "That although a getteral ■
of covin, which, a* held in Talbolae'a case, oa(»
to ha between two ar mor^ would be siidiaisat'
The Lmxt or Swatze bi dx t. Buux m al
fat, k fortiori, in o
the Iicart of one <" , .
* fTKnduIent ^ft of his good* to di'
know not of it, it la fnudulent in him who
nukes it> And so it was adjudged in Turner's
Mse, 8 Reports, 133, A, tiut fraud may be in
one or one partj only i and again, in the lame
cas^ tlia court say that fraud may be commit-
ted by one alone; and in Turner's case, the
court aeld that although ut administrator may
lawfully confesa a judgment in favor of one
creditor, yet if that creditor afternarda is satis-
fied, or offer* to compromise, and offers to tslce
•Ixty pounds for one hundred pound*, and the
administrators do not do it, to the intent that
the judgment may stand in force, so that third
Kaon* may be defrauded, and the adminis-
ton convert the deceased's goods to their
private use, which is altogether against their
offlee and the trust reposed in them; and there-
fora, be such agreement either precedent, be-
fore the recovery, or subsequent after the re-
eorery, ft ia all one a* to the creditor, who ia a
tUrd peraon; for be i* defrauded a* well by the
■ubaequent agreement as by the agreement pre-
eadent: aLildin2 Johna. Ct. 4Z, ^, it f* ruled that
a deed, fiauduleBt on the part of the grantor,
may be avoided, though the grantee may be a
bona tide purebaaer and ignorant of the fraud.
This bnngt uj to the important intjuiry in
tUa caae, whether an executor or administrator,
or any other individual standing in a fiduciary
eapftclty, can purchase the real estate, either
directly or indirectly at a pubtic sale, occasioned
br his own n^lect and misfeasance, as In
tnia, and hold tlu same to the exclusion of bis
co-hura; upon tlu* point the books are full of
authority. Court* both of law and equity have
reiterated the position that it cannot be done.
Hie law wilt not thiia suffer a man to be led
Into temptation by taking away from him all
inducement to fraud. The general principle is
atrongly laid down in the atile commentanea of
Hr. Justice Story on Equity, 318. The priu
elple appliee, however inconvenient to purchas-
er* in any given case; it is poisonous in it* con-
•equencea: and the same principle is advocated
by Chancellor Kent, in his Commentaries, vol.
4, 438,430.
17*] *0n this point there was also dted
Wonnley v. Wormfey, 8 Wheat. 441 ; 1 Mason's
C C R. 241, 345; Davone v. Fanning, 1! Johns.
(Sian. Rep. 2S2; lAzams v. Bryson, 3 Binney,
64; Moody t. Vandyke, 4 Binney, 43; Rham v.
North, e Veatei, IIB; Lambreton v. Smith, 13
Serg. ft Bawle, 310; Rogers v. Rogers, Hopkins'
Clwn. Rep. 627; Downes v. Gray, Trustees, et
k1. a Menvale, 200; Nilthrop v. Pennyman, 14
Vea. GIO; Wbelpdale v. Cookson, 1 Ves. Sen.
0; Ex-parte l>cy, S Ves, 020; LesUr v. Lester,
S Vea. 030; 1 Powell on Mortgagea, 124;
Colea ■». Trecolhick, 9 Ve*. 234; Evertaam v.
Tapvln, B Johns. Chan. Rep. 439. After re.
femog to these case's, we may appeal to the
facta of thia case, an.i confidently ask where
waa the neeesaity of pro\-ing that Mr. Ross lent
Umielf to the fraudulent Intentions of Oliver
Ormiby before we can recover from trustees the
^rtate be and they held by fraud. It is humbly
Imaginal, in this part of the case, the learned
Judge WM In error. An Individual may concert
m aeheme of fraud, he may employ a hundred
different agents, thef may each believ* hia In-
tention* perfectly boneat — they, aa In tliia caae
of Mr. Rosa, may not know that there were
other lawful heirs to the eatate, except Ormsby
and his lunatic sister, then partly under his care
— they may each believe his intention pure; and
yet we must prove them all parties and privies
to the fraudulent intentions of the maker of the
fraud, before we con defeat the estate so un-
fairly acquired. How was Mr. Rosa to know
whether there was personal property to pay the
debta! How was he to know that Mrs. Swayze
was an heir, residing in Mississippi! Haw wa*
he to know that Oliver Ormshy liad been guilty
of falsehood to her; that in 1S26, a year after
the sheriff sold, before a dollar was paid either
by Robs or Ormsby, that Ormsby had written
to her, telling her his father had left no proper-
ty! Yet Oliver Ormsby knew all these thing*,
and the court say, although he wa* guilty of
fraud, yet the plaintifTs cannot recover, unless
Mr. Ross was also guilty of it. In considering
that part of the charge of the court connected
with this point, we do not wish to scan it nicely,
but to give it a fair and liberal construction; and
in doing so, must observe that It neither corre-
sponds with the facts of the case nor the law of
the land, as we understand it. It Is all true
that Mr. Eos* attended at the sheriff's sale, and
had the property knocked off to him in tbe
lump, "dulling by bis presence the sale," •ay-
ing, "if Ormsby or any of his family can get able
to redeem it, he, or any of his family, might have
it on paying the debt and interest;" the very
effect of a declaration of this kind would be
Ormsby is the posaession of the property— paid
no money to the sheriff, and there was no
money paid until 1831, when Ormsby paid
Roia the amount of the judgment, and receipt-
ed to tbe aheriff, a* administrator of Iii* father'a
eatate, for the balance of the bid at the sale.
How, then, could the court take the fact* of
the caae from the jury, and aay "that Mr. Ross,
who never paid a dollar, was a bona (ide legal
purchaser — that be bought for himself, not aa
a trustee for Ormsby or anybody else!"
It was relied on as one of the strong circum-
stances conducing to prove fraud, thiit there
waa no diange of poaaesaiou. It may also be
ministrator of his father's estate! The property
is paid for, if paid at all, with the money of the
heirs of John Ormaby. Without their consent,
no man and no court bad a right to convert
more of the real estate into money than waa
sufficient to pa^ tbe debta. We have here the
caae of an administrator purchasing at sheriff's
sale, individually, and paying for the land with
the ptaintifl^a money. Can plaintiffa resort to
the land! In 1 Serg. &, Rawie, 144, when real
estate was bought by a guardian with the funda
of his wards, the land wa* treated a* theirs;
and hi* making the eonveyancea to himself ex-
clusively, was held fraudulent of Itself: what
is thia but the ordinary caae of a man purchas-
ing with the money of other*, and taking the
deed in his own name! (See 2 Watt'a Penn.
Elep., 3Z4; Kisler v. Klaler, and Law v.Doighton,
Ambler's Rep., 400; Lencb v. Lench, 10 Vesey,
606; and Waite v. Whorewood, which wa* tUi.
eaas of aa executor, in 2 Atkyn*, IBS; Wolf t.
u
SoraKMi CouKi or roM Dkitbd States.
Sbjmt et al. 2 Penn. B«p. 347. So ti> Hemp-
at«u V. Herapatead, 2 Wendell, 199, it is express-
ly Mid by the court that ccatuia que trust who
^TB paid tbe consideration mone; of land
patented in other names, may maintain eject-
ment. See opinion of the court, page 13-1. In
Fellows V. Fellows, 4 Oowan's Rep., it was de-
cided that an administrator who buys land on
» judgment of his intestate, must account for
it to hiB cestuis que trust; he was an agent and
truBtee, and could not devest bimseif of tbe
trust. Cited, also, on this point, the case of
Hamilton, Guardian, 17 Serg. A Rawle, 144;
Sogers V. Nicholson, 2 Yeates, 610; Griffin v.
Jones, 6 Wendell, 632; Craig v. Sprague, 12
\Vpnden.46; Bowman's Lessee v. Craft. ISJohn.
110; Jackson t. Newlin, 18 John. 302; Woodn
T. Monell, 1 Johns. Clian. 502; Shad v. Course,
4 Cranch, 403; Sampson v. Sampsun, 4 Serg. &
Sawle, 320; Grcenlear v. Birth, 0 Peters, 292;
I»*l 2 WatlB' Penn. 'Rep. 4B4, 495; The
Commonwealth v. John Itret-d, 4 Pick. 460;
Benham v. Craig, 11 Wendell, S3; Bryden v.
Walker, 2 Harris & Johns. 292; 8 Cowcn, 406;
4 Wendell, 303; 2 W«ttB* Penn. R.p. 06; 7
Wendell, 438; 2 Mason, G. C. R. 536; Rlioades
& Snyder v. Selin, 4 Wash. C. C. R. 720.
Mr. Watts, for the defendants in error, upon
the exception taken by tlie counsel for the
plaintiffs to tbe charge of the court that frsnd
must be brought to tbe knowledge of Mr. Rons.
and that the title derived from him was good
in his vendees, contended that this point in-
volved a question of la-v and a question of fact.
Ab to the question of law, that the court hud
iurisdictionof the subject matter of rontroversy,
he court answered it, as requested by the plaJn-
tiSj for tbe whole cause, the charge of the court,
the verdict and judgment was based upon the
fact that the court did entertain jurisdic-
tion. And as to the matter of fact, whether the
conduct of Oliver Ormsby was fraudulent or not,
U wofl expressly referred to tbe jury to de-
termine. Any other direction by the court would
have been erroneous. This point necessarily
raises the question whether the conduct of
Ormsby waB fraudulent. The argument of the
plaintiff assumes the fact that Mr. Ormsby was
tbe trustee of the heirs of his father, John
Ormsby, deceased. In FennsyWania, there is no
kind of connection between the administrator of
the personal estate and tbe interesta of the
heirs, as regards the real estate; as to the
realty, tbe administrator is as a perfect
stranger; and, upon a sale of it by the sheriff,
upon an execution, he may become the pur-
chaser. Cases have been cited, in tbe argu-
ment of the ptaintifTs' counsel, to show that an
administrator cannot become a purchaser of
land Bold by bimseif; also, that fraudulent eon-
duct of an adminletrator, in making sale of
land, will vitiate it. This is true, but it ia dif-
Reult to discover what application it has t« the
law of this case. Whenever an administrator
makes a sale of land in Pennsylvania, he does
not do it as an administrator ex officio, but by a
special order of the Orphans' Court, for some
particular purpose; such as the payment of
debts. In sucQ case ha cannot be the vendor
and the vendee; and, it Is equally plain, he
must act fairly in conducting aucn sale; and
thiB fs the principle established by the cases re-
ferred to,*
If ths plsintiff had It la Us power t« show
that personal estate of John Ormsby kad «MM
to the hands of his administrator, 0. Ormafaf,
to an amount sufGcient to pay the debt of ths
Penns, and that he had *not paid it, but [*S*
Bullered the land to be sold, and became ths
purchaser himself, there would have been sons
prete.xt for the argument that 0. Ormaby's ti'Ja
was fraudulently obtained: but, as tbe facts a»,
and the proof in the cause is, that, altboa|^
0, Ormsby did take out letters of adminiatts-
tion, no estate ever came to his hands to be ad-
miniatered, or which, by law, wsa applicable t«
the payment of the debts of the intestatei ns
trust, in relation to the land In dispute, existed
between the parties to this action; and Oliver
Ormsby was as competent to become the pur-
rhoser at sheriff's sale as any other individual.
But he did not thus purchase.
When James Ross purchased tbe land, he
purchased it for himself; and, tf be be believed,
lie never had any previous understanding or
arrangement with 0. Ormsby on the subject.
His object was, first, to secure the debt duC ta
the Penns; and that accomplished, bs was will-
ing to convey to O. Ormsby his title to tbe
Isnd, upon being released from the payment of
tlie baiance of the purchase money, after Pena's
judgment was paid. Mr. O. Ormsby aerecd to
take the land from him at the price he had p«ud
for it. Who were defrauded? The heirs of John
UrmsbyT By whom! Mr. Ross expressly aays
that O. Ormsby was not present at the sale,
that he was awny from home, ond when he re-
turned he told him of it: he also sayB that, at
the time of the sate, his intention was, and he
said at the time the property was sold, if Mr.
Ormsby or any other of bis family was aMe to
redeem it, be might have it on the payment of
the money. At that period these lots wero at
very little comparative value, and periiapa O.
Ormsby was the only individual who would
have given for them the price at which they
sold at sherifTi sale.
0. Ormsby gave his receipt to the aherilf for
the balance of the purchase money, after tbe
payment of the Hen for which the land was
sold, thus charging himself a* administrator,
and his security in the administration bond,
with this money, for which he was accountabla
to the heirs. Under the facts of this case, it tt
quite impossible that there could have been
fraud on the part of O. Ormsby atone; if fraud
was committed, James Ross must have been a
party to it: for, if he were a bona fide purchaser
of the land at sherifTs sale, alt idea of fraud,
subsequently committed, is out of tbe questioa;
for 0. Ormsby never had one trait of tbe char-
acter of a trustee with respect to this land-
The conveyance by James Ross to him is abso-
lute and unqualified by any trust; and it is Rrt
pretended to be shown that O, Ormsby pur-
chased the land in trust for the plaintiff. B
was pertinently remarked 'by ths court ["■!
below, in their charge to tbe Jury: "Suppow
the property had depreciated in value after ha
received tbe conveyance from Mr. Ross, wovld
be have been permitted, under the circumstau-
ces disclosed, to cast it upon the estate of ,lohn
Ormsby, and to cancel his liability arising froia
his receipt to the sheriffT But the claim of ths
plaintiH is founded upon an alleged fraud t4
O. Ormsby : and the answer to it ia, that it Most
manifestiy appears that, before be did <i»t act-
r SwAYZK cr ux. 1
«r attend one nlUble in relatian to the Und
In CODtrorerRT, toue wa* an iodefeagible, legal
title VMitad in Jamea Robs, bj a judicial sale. 0.
Ornwbf waa bound b; no leral or moral obli-
C'on to accept Janrn Ross ■ ofTer to permit
to redeem: and, If he did accept it, it wo*
upon the terms mentioaed in the deed, hj
which the transaction waa coniummated and
tim title vHted in him.
But It is said that a number of lots were
levied OD in mass, and so sold, instead of having
bean separated. What had 0. Ormaby to do
with tliatt If heirs or creditors were inju-
riously alfected by it, their remedy was to
up] J to the couit to set the tale aside; but
that was not done, nor have the defendants,
upon the trial of this cause, pretended to prove
that the lots were worth one dollar more than
the price for which they sold.
The question of fraud, being a matter of
fact, was distinctly submitted to the jury by
the court, uid they have found against the al-
Mr. Justice VLean delivered the opinion of
tha court:
Ao action of ejectment was brought in the
Western District of Pennsylvania by the
Itlaintiffs againit the defendants, to recover the
and In controveray. Both parties claim by
descent from John Ormsby, Sen., who died in
Allegany County, Pennsylvania, in December,
ISOfi. The deceased liad a son, Oliv
■nrvived him, and who adminiBtered
««tate; and a daughter, Sidney, who married
Itaae Qregg. He had also a son called Joha
Ormaby, Juii-, who married in the Mississippi
country, end died In August, 1795. Mary
In December, 180T, Oliver Ormsby gave bond
■J administrator of hie father, but it seems he
filed no inventory of the personal estate, as the
Iaw required, nor did he ever settle his admiQ'
iatration account.
On the eth of September, IS2e, as adminis-
SS*] trator, be confessed a 'judgment for four
hundred and siity-seveo dollars and sisty-four
eents, in favor of Messrs. Penns, Mr. James
Roas acting as the attorney of the plaintiffs.
An execution was issued on this judgment,
and the premises were sold to Mr. Ross for
three thousand dollars. He declared, publiclv,
»t the sale, that Ormsby or any of his family
might redeem the land, at any time, on the
Eyment of "debts and interest;" and Mr.
•s further states that before the sale Mr.
Ormsby was informed that he only wanted the
money on the judgment, and that he did not
iatend to buy the land to bold It.
No money was paid by Mr. Ross at the
■heriff*s sale, or at the time he received the
■herifl's deed. Ormsby remained in posaession
of the land, reedving the rents and proHts,
»nd in April, 1831, four years after the sherifTs
aale, he paid Ross five hundred and twenty-
three dollars, the amount of the judgment and
Interest, and received from him a convejrance
st the land. At thia time Ormsby receipted
to the eherift, as adminietrator, for the balance
of the three tltouaaod dollare, after deducting
(ha amount paid to RoM. The sheriff's deed
to Ross, aad the d«ed from Um t« ftiwilij.
were recorded on the same day.
The land in controversy consist* of Blgfct«an
eoal-hill lots, near nttaburg, and tllfrty'five
acres adjoining them, and which is now of
great value, and was wortb ■ brge nun si tha
time of the sheriff'* sale.
There was a letter in evidence, written hw
Oliver Ormsby to Mrs. Swayaa, dated IVt*
March, 1828, at Natcbet, In which be Mtyai
"My father, at his death, was not poaaeased of
more property than a sufficiency to pay hla
debts; having, from time to time, sold to Indi-
viduals, and conveyed to his children." And
tbere was evidence conducing to show that the
sale of two of the lota would hava aatiafled Uw
judgment.
Oa these facta and othen tn tha eaae, tbs
counsel for the plaintiffs prayed the court to
instruct the jury that, "in mattera of fraud,
court* of law and chancery have a conenrrant
troceedings of Oliver Ormsby, whereby tha
!gal title to the property in dispute became
vested In himtelf, for his exclusive use and
benefit, were In fraud of Us co-tenant, Mary
Swnyze; and if they were, the verdict on^t
to be for the plaintiffs." This inatouction waa
given, as requested, with this qualiSeatlon,
"that the fraud should be brou^t to tha
knowledge of Mr. Ross; and that, if he took a
valid title under the sherirs deed, tha title of
*hls vendee would be good, under the [*SS
circumstances disclosed In evidenea"
To the refusal of the Enstruotion as MC|aested,
and the instruction as given, an exception waa
talten; which raises the question of law, wheth-
er, to render the title of Ormaby, aa set up by
the defendants. Inoperative and void, it Is es-
sential that Roas sitould have participated in
the fraud.
The charge of the Judge waa explicit on thi*
point. He not only instructed the jury that,
to make the title of Ormsby fraudulent, Roa*
must have had a knowledge of the fraud; bnt
assuming. It would seem, the province of tha
jury, he declared that the faimeas of the trana-
action was above tuspldan.
That bmud li cognisable In a eouit of Uw,
I well aa In a eouit of equity, is a well estab-
lished prindpla. It has been often so ruled in
this court.
A* there la no court of chancery under tha
laws of Pennsylvania, an action of ejectment
is sustained, on an equitable title, by the courta
of that Btata. Such is not tha practise ut the
courta of tbe United State*; and in thia eaaa,
if the plaintiffs fail to show a paramount legal
title In themselves, they cannot laeonr.
It in unnecessary to Inquire whether, undar
the dreumatancea, Ormsby did not lac^va tha
conveyance of the land from Rosa, In tmat, for
the belr* of Us father, generally. Thli inquiry
would be appropriate In the exerdse of a chan-
cery Jurisdiction, on a bill framed tor the pur<
pose. But the ivrj were limited to the quea-
tion of fraud. The deed by the ahariff to Roaa,
and the one from him to Ormst^, eontain up-
on their face all the reqoisitea of legal convey-
; and they muat be operative to eoan*
the title, unless the dmtmtuneca nndar wUck
they wert axMstad nake thm nti.
n Banaaa Oodbt or t
la ISOT Omubj took out letters of kdmluia-
trktlon; but he Menu to have acted, in the
Dunagamcnt of the estate, without re^rd to
the law, or the obllntions of his AdminiBtim-
tion bond. He filed no inventorj, tnatle no
••ttlemeat of hi* account*. In 1S2S, he prom-
li«d to pay the debt in the hands of Robs, but
be took no step to fulfill thia promiie. It wae
hi* duty, as adminietrator, to make application
to the Orphans' Court for authorit; to eell a*
mueb of toe real estate a* would pa^ the debt.
But, to obtain this order, it would have been
naeewary to ahow that the peraonal aaaet* were
exhausted.
In 1826 he confessed a judgment, and sulTered
ta exeontion to be taken out and the prop-
erty in eontrovera* to t>e sold. He remained
14*] *ia the undisturbed possession of the
property, enjoying the rents and proSts; and
then received a conveyance of the land from
e of the
Eurchaae moner. And, prior to this time, by
1b letterm, he informs Mrs. Swayie, who lived
tn MiBsissippl, and still resides there, that thi
property left by his father would all be con
•umed m the payment of debts.
In deciding the question of law rused by the
exception, it may not be proper for this court
to Bay whether these facts do not show fraud
in the administrator. The facts were properly
before the jury, and It was for them to deter-
mine the question of fraud. But, may Ormsby
and his representative* hold the laJid under
their deed, uuleas it shall be shown that Ross
participated in the fraud T
A bona flde purchaser, without notice, la n
affected by the fraud of his grantor; and ft
admitted that a conveyance by such purcbasi
to a person who may have knowledge of the
fraud, would be valid. But the purchase and
conveyance of Roes cannot be considered as
coming within this rule.
In the first place. Rots did not purchase with
the intention of holding the property. This
was declared publicly at the salei and some
time Before it took place, the same determina-
tion was made known by bim to the adminSs-
tretoT. And, in the second pWe, it appears
the purchase waa never perfected by Rosa. He
received the aherilTB deed, but he paid no part
of the consideration. In this state the matter
remained four years, and until the administra-
tor paid the judgment, and receipted to the
■herin for the residue of the purchase money.
On this payment, he received a deed from Rosb,
and then be caused the aherifTs deed to be
placed on record.
In making the purchase, Ross seems to have
bad no design to aid the administrator in the
perpetration of a fraud, if such were his Inten-
tion, or to defeat or embarrass the claims of the
heirs of John Ormsby, Sen. By the proceeding,
he waa desirous of securing the debt placed in
his bands for collection, and, for the payment
of which be felt himself personally responsible.
rbe judgment and the sale of the Imd secured
the desired object. It might have been secured
by Um judgment only. ^ _,_ ,
Ths purchase at tbe aherir* sale was not
mad* by Rosa on his own account, or tor the
benefit of the plainUffa in the judgment. Hav-
ing fixed a lien M the land bj the Judgment
t Uinm BTAns. UM
and sale, he did not desire to complete his par-
chase by the payment of the 'money. [*»
And it is clear that a purchaser at sheriff's sale,
cannot protect himsetl against a prior claim of
which he had no notice, or be held a bona fide
bona flde purchaserr Hie omisBions of duty
.n failing to account for any assets whici may
have come into hU poBsession, and his neglect
to apply to the Orphans' Court for authority t»
sell a part of the real estate to pay the debt,
connected with the judgment and the proceed-
ings under it, are facts from which a jury migb^
in the esercise of their judgment, have inferred
Had the administrator fraudulently furnished
an agent with money and employed him to
purchase at tbe Bhenfrs Bale, could a title thus
acquired l>e held valid against the heirs of John
Ormsby, Sen., though the deed might Itava
been made to the agent t The agent may ba
supposed to have been made tbe innocent in-
strument of fraud by the administrator; aad
whether the title apparently remained in th«
agent, or had been conveyed to the administra-
tor, could not tbe fraud be inquired into at
law?
There may not have been. In terms, as
agreement between Boss and tbe administrator,
that the purchiEe should be made at the sher-
iff's sate by the former as agent of the latter.
But, before the sale, tbe adininistratar was as-
sured by Ross that he would not purchasa to
hold the land, and his high character waa a anf-
Dcient guaranty on the subject; and may not
this conduce somewhat to show to a jury why
the eighteen lots and the thirty-flv* aerea ad-
joining were sold on the execution, when the
sale of two or three of the lots would, probaUy,
have satisfied the judgmentT The money waa
paid by the administrator.
In making the purchase, Roas seems, in ef-
fect, to hsve acted as the agent of the sdmini*-
trator; and it was proper for the jury to inquir*
whether the transaction was not fraudulent! If
the administrator suffered the land to be aold
through tbe agency of Roes, with tbe view of
securing the title to himself, t« the exclusion of
the other heirs of his father, the proceeding
was fraudulent and void. And as Rosa could
not be considered a bona fide purchaaer agaiaM
the 1^1 and equitable right of the plaintifTs,
he not having paid the purchase money, the
deed whieh he executed to Ormsby is not a bona
fide conveyance. Had the plaintiffs brou^t
their action against Ross, he could not have
defended himself, under tbe sheriff's deed,
without showing the payment of the [*9I
consideration. Nor is this deed a good defcnis
against the right of the plaintiffs under the
circum stance* of the caae, when set up by (M-
Iver Ormsby or his representatives. To the ob-
jection already stated to the title of Ross, ma;
thejury are the proper judges.
We think, therefore, that the judge arred in
charging the jury that the deed to (mnsby was
valid, unless they should find that Soa* par
tldpated in Uw fraud; and, (w this jpound, th*
is ground.
Bertok t. Woolsbt rr al.
jtidfifieii
Thia cause came on to be heard on the tran-
■oript of the record from the District Court of
the United States, for the Western District of
Petinaylvania, ai'.d was ar^ed bj cauQBel; on
consideration whereof, it is now here ordered
Uid adiudged by this court that the judgment
of the District Court be, and the aame it hereby
reversed; and that this cause be, and the same
ia hereby remaniled to the said District Court,
with instructions to award a venire facias da
»T"1 •NATFTANIEL S. BENTON, District At-
tomey of the United States for the North-
am District of Nev York,
The district attomej at the Untied States Died
«o iorormallan Id bis owd name. Id bcbaif of the
Dnlted SUtes, In the District Cnurt Eor Cbe Nanb-
ara District or New York, Id vatorce ■ mortKSHe
idven to the United States by Woolse;. ans of tbe
derendants. Tbla form of proceeding baa bwn for
le nged, wlibout objection. IQ tbe coiirti ol
f S..1.. iQ Mew Voik, aod was doulitleas
e farm used lo analogoua cases in
— ,■ atite of New VorB. wher» tbe
8Ute ttsdl was the plalntllT la tbe salt. The UdII-
•d States nay be considered a< tbe real part;, st-
thougb. [n form. It Is tbe Inlormatlon sDd eom-
Blalct of tbe district atlorneT.
It Is eertalDiT desirable that tbe practice ihoald
be anltorm In the caarts of the United Slatei : und
t]Mt, In all suits where the United States are tbe
KBi plaintiffs, tbe proceedings abonld be In tbelr
■ame. unless It Is olbcrwlsa ordetsd bjr act of
APPEAL from the District Court of the Unit-
ed States for the Nortliera IMstrkt of New
York.
The distrkt attorney of the United SUUs for
the northern distrlot, filed in the District Court
of the Northem District, an information on be-
half of the United States, for the purpose of
forecloeing a mortgaf^e aaeculed by Melanctbon
T. Woolse^ to the United States, in July, 1626,
■a a security for tbe payment of a debt due by
him to the United SUt«B, in one year after its
date. The mortgage comprehended land in the
County of Jefferson, and in the County of St.
Lawrence, New York; and it was recorded in
Jefferson County on the 26th day of November,
1S30, and in the County of St. Lawrence, on
the loth of June, 1831.
The Bank of Utica had obtained a judgment
against Mclancthon T. Woolsey in the Supreme
Court of Npw York, on the ITth of October,
laiB, for one thousand six hundred dollars,
which Judgment was docketed on tha 24th of
Norember, 1817. No execution was Issueil on
this judgment until it waa reviTed by a scire
facias, on the 9th Jul^, 1828. A fieri facias
waa then liaued on the judment, and the lands
mor^iaged to the Unit«d States were sold to
■atiaff the debt, and wrae purchased by the
Bank of tJtlca, to whom Huj war* conveyed
by the sheriff on the 3d Hay, 1B30. Tha lands
in *8t. Lawrence County ware sold by {'38
the sheriff, January 30, 1826, and conveyed to
the Bank of Utica on the IGth May, 1830, hav-
ing been purchased by the bank.
By the law of New York, the judgments In
favor of the Bank of Utica ceased to be a lien
on the lands of Woolsey after ten years against
bona fide purchasers and subsequent incum-
brances, and the district attorney, on behalf of
the United States, claimed the operation of the
morlcage to the United States, so as to exclude
the cTaim of the bank, under tbe judgment up-
on which the land was sold and purchased by
tbe bank to satisfy their debt. No money waa
paid by the lunk at the time of the purchase,
except the expenses attending the proceedings
against the land; but the bank claimed to hold
the land as a bona fide purchaser, the property
having been bought to satisfy the debt due on
the judgment, and without notice of the mort-
gage to the United States; it not having been
put on record until after the proceedings under
the judgment.
The Diatrict Court gave a decree in favor of
the dofendants, and the plaintiff appealed to
this court.
The questions arising on this case wer«
argued at large in printed arguments by Mr.
Butler, the Attorney -General, for the United
states, and by Mr. Beardsley for the defend-
The judgment of the District Court waa af-
firmed by a divided court, and no opinion waa
^ven on any of the questions raised and argued
in tbe cause, except upon a question of juris-
diction. Mr. Justice Thompson did not ait in
the cause, being connected with one of the par-
ties to it.
The court Intimated a doubt of their juris-
diction in the case, as the district attorney had
instituted the suit in his own name.
Upon this question Mr. Butler, the Attorney-
General, said I
That the bill represents a case in which the
United States are exclusively the parties com-
plainants, and the appeal is taken by the district
attorney, as prosecuting (or the United States.
The United States are tbe only parties, and the
district attorney has no Interest in the cause.
The court will not look particularly at forma,
when the substance of the case is manifestly
within its jurisdiction.
Tbe Judiciary Act gives jurisdiction to the
court of the United States in all cases in which
the United States are parties. It is then
'submitted that, aa the interest in the ['39
suit is entirely in the United States, the court
will consider the case aa if brought in the name
of the United States.
The rules of practice in the courts of chan-
cery in England are the rules eatahlished for
tbe government of suits in chancery in tha
courts of the United States. Where those rules
are silent, the practice of tbe State courts is re-
sorted to. In the courts of New York, it Is the
practice to file bills in the nameof the Attorney-
General, in cases In which the State of New
York is Interested. In one instance, in the
Circuit Court of the Southern District of New
York, this practice was adoptad. CIt«d, 33d
" ■ - " " ' ' "\» Circuit Oourta tn
*ST
BuIb of the Practica of the C
Soranu OonxT or thb Unimi E
pToo««dlnga In Chancerji Neirland'a Practice,
It !■ admitted that no officer in the United
St«.te* can be sued as such, nor can he, without
the authority of an act of ConKreae, inetituta a
niit. But this does not apply in admiralty
eaaea, or in coses in equity, where the United
States, being interested, the taw officer of the
United States often interposeH.
In the caae of Brown v. Strode, 6 Cranch, 303;
t Cond. Rep. 265, it was held that the courts
of the United Statei have juriadict ion In a case
b which citizens of the United States are but
Bomina! plaintitfa, for the use of an alien. On
Uie authority of thie case, and of the practice
of the courts of the State of New York, the ju-
risdiction of the court is claimed. The district
■Jttomey Is but a nomioal party.
Mr. Beardslcy, for the defendnnte, said no
wlah was entertained to prevent the court tak-
ing jurisdictioD of the case.
Ur. Chief Justice Tuiey delivered the opinion
of the court:
In this case, a bill of information and com-
In the IKstrict Court for the Northern IMstrict
of New York, againit Melancthon C. Woolsey,
the Bank of Utica and others, for the purpose
«f foreclosing a mortgage upou certain real
E'operty, executed by the said Woolsey to the
nited SUtea, on the 20th of July, 1825, to se-
cure the payment of twenty-nine thousand four
hundred and flfty-nine dollars and twenty-nine
cents, in one year from the date, with Interest.
The property mortgaged was situated partly in
the County of Jefferson and partly in tne Coun-
ty of St. Lawrence, in the State of New York,
and the nortgage was recorded In tbt County
SO*] *of Jefferaon, November 26th, 1830; and
In the County of St. Lawrence, June 10th,
1S31.
It appears from the answer and evidence that
the Bank of Utica obtained a judgment in the
Supreme Court of the State of New York,
against the said Woolsey, on the 7th October,
1817, for sixteen thousand dollar*; and the
iudgment was docketed Noveinlier 24th, ISIT.
?o further proceedings were had upon it until
May Term, 1828, when it was revived by scire
facias, and the judgment on the tcire facias
docketed July Sth, 1828.
Process of fieri facias issued on this judgment,
indorsed to levy six thousand six hundred and
•iitjr-seven dollars and fifty cents, and the lands
martoged to the United States in Jefferson
County were sold by the sheriff on the 24th of
November, 1828, and (with the exception of a
■mall parcel) purchased by the bank. They
were conveyed oy the sheriff to the bank. May
Sd, 1830. The lands in St. Lawrence County
mortgaged to the United States, were sold by
the sheriff, January 30th, 182S, and conveyed
hr the sheriff to the bank. May 15th. 1830.
The Judgment obtained by the bank, in 1817,
after the expiration of ten years from the time
it was docketed, ceased, by the laws of New
York, to be a lien upon real estate against bona
Sde piirchasen or subsequent Ineumorances, by
mortgage, judgment, or otherwise; and, conse-
quently, after the 24th of November, 1827, it oo
longer bound the property <rf Woolsej.
*8S
The bank deniee, hi i
purchased and obtained t
there is no evidence in tbe iceord to ehaxge
them with notice. It purchased and obtoiiwd
the deeds, aa above stated, before the mortgage
was recorded. No money woa paid by the bank,
OD the purchase, except for expense* of sale a,iid
costs. The property waa bought to secure tb*
debt due from Woolsey; and the bank clums,
'ly reaaoa of that debt, to be a bona flde pur-
:baser for a valuable consideration; and, hav-
ing had no notice of the mortgage to the United
States, it insists that It la entitled to bold tbe
lands discharged of the mortgage.
Soma doubU were at first entertained bj tbe
court whether this proceeding could be nu-
tained in the form adopted by the district at-
torney. It is a bill of fnformatioQ and com-
plaint, in the name of the district attorney,
n behalf of the United SUtcL But, npon
United States, althou^. In form, it is In the
name of the officer. And we find that tbis
form of proceeding, in such coses, has been for
a long time used, without objection, in tbe
courts of the United States held in tbe SUte of
New York, and was doubtleas borrowed from
the form used in analogous cases in the courts
of tbe State, where the State itself waa tbe
plaintiff in the suit. No objection has been
made to it either in tbe court below or in this
court, on the part of the defendants; and we
think tbe United States may l>e considered as
the real party, although. In form, it la tbe in-
formation and complaint of the district attor-
ney. But, although we have come to tbe eon-
clualon that the proceeding is valid, and ought
to be sustained by the court, it is certainly de-
sirable that the practice should be uniform in
the courts of the United SUtea, and that, In all
suits where the United SUtes are the real
plaintiffs, the proceeding should be in their
name, unless it is otherwise ordered by act of
Congress.
Considering the United States as the real
party in the case, tbe question to be decided by
this court Is whether, under the Act of the
SUte of New York concerning judgments and
executions, paswd April 2d, 1813, the Bank of
Utica was a bona Sde purchaser at the sheriff's
sale hereinbefore mentioned; the purchase be-
ing made not upon an advanee of the purchase
money, but to pay a precedent debt due to tbe
bank by judgment.
This question has been fully argued aad
carefully considered by tbi* court. But no
opinion can be pronounced on the point, be-
cauM the judges are equally divided upon it.
Upon this division the judgment of the court
below is necessarily stffirmed.
This cause came on to be heard on the tran-
script of the record from the District Court of
the United States for the Northern District ol
New York, and was argued by counsel; «■
consideration whereof. It is adjudged and or-
dered by this court that tbe judgment of tbt
said District Court In thla eanae be, and tke
saaa it hereby affirmed.
Tbx Baks flv THE UKttn StAm T. Dahul n At>
JAMES DANIEL et kL, AppeUee*.
Juiiidlctioii — BnKiuTit In contTOVarey — Interest —
bill drAwn and negotiated in Kentuckj pa;-
mbU in LouJiiana— dsmagaa for nonpayment
— «tfttute of liniitationa.
A HII of ncbani
Jiann waa dntwn at LeilDEtan, K«n-
lOCkT, on Jimn LmJel. on (be VHh ol October
1818. bT Bulxrt Orlfflnr, iiajBLIc at one bundrrd
•■d twcDlj daja alter dale, at tbe bank of depaalt
of New Orleani. I'be bill was accented by Ibe
drawee, and waa Indoncd br U. R., I. C. and S. II.
All tbe panics to tbe Ulli realdnd la KentuckT-
Tbe bill waa dl■<^)uDted bj tbe Ilruncb Hank of Ibe
United atatea In Keatnckj. and wai trnDBinllted to
N«« Orleans lor pHymcat. It «u tbere rrBulerlr
proteeled for aoaparmeut, and wai return cd to
Kentucky for pajment of principal and interest,
rron the BEb of Febraair. 1819, the lime It tell
dn*. tocetbar witb cbBrgei of proteet. and ten per
cent, damagca on tbe prlnrlpal. Tbe miker and
acceptor of tbe bill paid (he bank. In Julj. ISlfi,
tbrev tboutaud three bundred and tbirtj dollars
and sixty-seven ceal). on iiccouDt at tbe aEgrefCsle
amo'iDt due, end suppoHud Id be due, and gave a
promlssorT note (or eigbt Ibausaod dollan, tbe bal-
ance, to William ArmetroDK, to wbleh U. I>., I. C,
aod a. If. were parties, as codcawen or Indorsers.
TblB note was discounted at the office of dlsconnt
of tbe Bank of tbe United Btatea at LeilDgtoa.
KentuckT, upon the cipiesa acreement tbat tbe
proceeds shall be applied to tbe pajment of tbe
balance doe on Ibe bill. Afterward a parment
of Ore
JiTen, wblrb not belns psld, and Grlfllni barlnR
led. suit was brouibt by the bank on tbe note,
•nd a ludamcnt obtained acalnit all tbe other
partiet to It In 1827 tbe defendant* In the Iud«-
ment at law, (lied tbelr bill In tbe Circuit Court
at KentDCkr. ctslmlDE. that by tbe law of Ken-
tnckr the bank was not entitled to ten per cent,
OamaRS on Ibe bill, as all the parties to It llred
iB Renlnckj; and that, therefore, the amount of
the damsiea, one tbousaod dol!an, bad been In-
cluded bT mistake. In the note tor eight thousand
dollara: and a* Ibere was no legal lUblllljr tor
damtcea, the note, to tba amount of the dam a gee,
waa Bl«n without '"~ '
The bill --
Term. 183«, •
. , of tbe damages and
latereat, from July, 181B. which Ibe three Ibou-
nnd three hnndred and Cblr^ do.Iars lUty-aeTen
ecDta InclDdcd and waa paid In tbat sum. waa
at the lime of the decree of the Circuit Court, two
Ibousand and forty dollara.
Tbe act of Consreas prortdes tbat appeals iball
ha allowed to tbe Supreme Court trom tba Bosl
decree* rendered In tbe circuit courts, In ca*e* of
equity Jarlidletlon, where the matter In dispute.
ealne of Ibe matter In dlspnte, baa rejcrence to
Ibe data <rf the decree below, alike In cases of ap-
peala In aqnlty, and wrlta of error at law : they
are each (TOnnded on tbe original proceas of thla
court, operating on tbe Bnat decree or Judgment.
aad are limited to tbe anm ar Talne then In con-
wmw— ■ nnd of which tbe decree or Judgment
the bitter eeldence, abould It tumlih
Nova. — Bill* of eicbange, drawn In ana Btata
aad payable In another, are foreign blllt; au
■ale T L. ed. n. B. B28.
Wbether equity will rellere agilnet a mlataka of
Sw. aec note* to T L. ed. U. B. 2T ; B L. ad.
*■ »*'■ .-..^
Vta relief In eqnl^ agalnat mtatato, m* BOtaa
L. ad. Q. 8. flH ; i £:•«. D. a. 4Ba.
tb«A.
a bare deducted fro:
day u[ July, 1819, i
In ZJovember, JSafl ;
'.i-imh, and the Cli
cull Court dec
thee*
ivam [ue 8tb
it the decree,
decreed tba [(IS
feet B-a
1 tbe
i dollars, with tbe li
that bad accrued
IDUUDd dollura rrom the date of tbe
ISiJT 10 tbat of the decree In 1836;
IS-.? .
an Incident of the contract by tbe laws of Ken-
tucky, as well after Judgment aa before. The prac-
tical consequence of ibe decree will Immedlateljr
be mnnltesl when the bill Is disuilsiied by the order
of this court: tbe appellsnls will then Issue tbelr
riecutlon at law. and eoforce the one thousand
dollani, with tbe accruing Interest, from tbe Slh of
July, 1819. until pajmcut Is made. It foUpH -' --
dliT'-Kardlni the statute of 1
Ing ten per cent, deuiagea In addition
decree below relieved tbe appellees, and dcprlred
Ibe bauk of tbe rlEbt of recovery, waa t"'o Ibon-
sand and forty dollars ; Ibst Is. one thousand dol-
lara principal, with acventeen years and four
amount In dispute, and enjoined by tbe decree, of
coui-se, the Supreme Court bas Jurisdiction of the
writ ol error.
Tbli court. In sccordanee to a steady course of
declBlon for many years, feels It to be an Incum-
bent duty csrotully to eiamlne and ascertain If
there be a acltled conHlniuiInn by the State courU
of tbe statutes of tbe respecilte Htstea, where they
arc eiclusivcly In force, and to abide by and fallow
auch construction when found to be nettled.
A bill of eichanec drawn, accepli-d, Bn.l IndorHTd
bj cltliena ot Kentucky, and there negollaled, pay.
able at New Orleans : ivns not, by force ot ttaf >lut-
ute of Kentucky of I7BB, subject to the payment Ot
Whether a' bill ot exchange, drawn In one State
ot this Union, psyalile In anolber, ts a foreign bill.
Involves political con si d" rations of some delicacy,
altbouah of no intrinsic dlQiculty at Ihla dav. The
res pee live States are sovereign within tbelr own
limits, and foreign to each other, regarding them
SB local govemmenta : and consequeotly foreign to
each other tD reeard to the regulation of contracts;
It follows, * bill drawn In on*, payable In the other,
U a foreign bill.
Tbe place ot payment ot tbe bill, on which the
suit waa brought In tbe Circuit Court, beinE within
a Jurisdiction toreign to Kenluckr. aulijected the
cording to tbe laws ot Louisiana, where It was'pay-
Bble. to every extent he would have been bad be
become a party to tbe bill at New Orleans ; and tbe
effect ot tbe contract on alt the parties to 11 does
not vary trom tbe oue sued on In Buckner v. FInlej
and Van Lear. 2 Feters, GSS. Being a Foreign bill,
and not bBilug been srrecled by the statute of Ken-
tucky, ot conrse the holdera. by commercial usage.
were entitled to re exchange when the protest for
nonpayment was made.
Courts ot chancery will not relieve for mere mis-
takes of law, Thla rule la well eBtabllabed, and the
court will only repeat what wna aald In the cnse of
Hunt ». Rousmanler, 1 Peters. IS "that whaterar
eiceptlona there may be to Ibe rule, they will bo
found tew In number, and to have aomctblng pe-
culiar In their chsracter, and to Involve Other A*-
menEs ot decision."
courts of equity are no more exempt from
obedience to statutea of limitations than courts Of
■VJUS
ally true II
s II li
fthat the noli
The statute of I. .. _ -_.
where, at the time of the retain ot a bill eof [*S4
eicbange, payable In New Orleans and drawn In
Kentucky, protested tor nonpayment, tbe par-
lies to if In 1810 paid aa damacea on the bill, ten
per centum on tbe nmounl : and did not until IS2T
claim tbat, by the law of Kentucky, no damages
wera payable on sneb a bill. In ISlS, tbe parties
to the bill paid three thoueand three hundred and
thirty dollar* and aWy-seven cents, on aceonnt of
lb* bUl tot tan thousand dollar*, tbe cost ot pro-
»t
SuPUMK CouBT or TUK Unitbd Siatm.
e btll Cor lea thouBa
Ibree hundred ■
cenU. could h*i
B b«ei
"!,.;
AN appeal (rom the Circidt Court of the
United States for the District of Kentucky.
On the 291,h day of October, 1827, the appel^
leea, James Daniel, Henrf Daniel, Isaac Cun-
ningbain, and Samuel Hanson, filed a bill in
the Circuit Court of Kentucky, stating that on
the 12th of October, 18IS, at Lexington, Ken-
tucky, Robert Gdffing, since dead, drew a bill
of exchange on James Daniel, one of the com-
plainants, for ten thousand dollars, payable
one hundred and twenty days after date at the
office of discount aad deposit of the Bank of
the United States at New Orleans. The bill
was drawn in favor of Henry Daniel, Isaac
Cunningham, and Samuel Hanson, and being
accepted by James Daniel, wa« indorsed to the
Bank of the Uniteu States by the drawees. At
the lime the bill was drawn, Robert GrifUng
and Jamei Daniel lived and were in the State
of Kentucky; and all the parties to the bill
were, at the time it was drawn, and ever since
bare continued to be residents in that State.
The bill of exchange so drawn and indorsed,
was by the Bank of the United States trans-
mitted to New Orleans, and not being paid,
was regularly protested and returned to Ken-
tucky; the holders claiming the amount of the
aame from the parties to the bill, with dam-
ages, at thi> rate of ten per cent, on the amount.
James Daniel, the acceptor of the bill, believ-
ing the demand of damages to be legal, paid to
the Bank of the United States, in June or July,
1619, three thousand three hundred and thirty
dollars and sixty-seven cents, on account of the
whole amount due on the bill, consisting of
^ncipal, Interest, charges, and the damages;
and for the balance of the bill, the drawers of
the bill, Bobert Griffing and James Daniel,
gave their negotiable note, payable sixty days
after date, with Cunningham, Hanson, and
Henry Daniel, as co-drawers in favor of Wil-
liam Armstrong, which note was discounted by
S&*I the bank, and the proceeds, by 'express
Teement, were appropriated to the piiyment
the balance due on the bill of exchange.
The sum of three thousand three hundred and
thirty dollars end sixty-seven cents, and the
note for eight thousand dollar*, were delivered
to the bank at the same time; and all the com-
pUinants, except James Daniel, were only
sureties for the payment of the note, having
become co-drawers of the same for that pur-
poae only. In August, 1B20, Grilfing and the
complainants gave another note to the Bank of
the United States for seven thousand Sve hun-
dred dollars, Griffing and James Daniel having
paid five hundred dollars on account of the first
note; and the note for seven thoussnd Sve hun-
dred dollars having become due and protested,
a suit has been instituted on it, and a judg-
ment obtained, on the law side of the Circuit
Court of the United States for the Kentucky
District.
The biU aUtea that the Bank at the United
BtaUa (LI* not entitled to damagea on the bill of
ttt
exchange payable at Xew Orleans, Inas^nd
as all the parties to it resided In the State of
Kentucky at the date and maturity thereof;
and, therefore, so much of the note for eight
thousand dollars as includes the ten per cent
on the bill, amounting to one thousand five
hundred and fifteen dollars, ought to ba da-
ducted from the Judgmentj and the bill there-
fore prays that the defendant may be restrained
by an injunction from collecting the said suiB
of one thousand five hundred and fifteen dol-
lars, part of the judgment; and at a fin^ bear-
ing ou the bill, the injunction may be mad*
perpetual.
The Circuit Court, in November, 1SZ7, grant-
ed an injunction, according to the prayer of
the bill, until further order. The defendants,
in May, 1836, having proceeded to answer tlM
bill, stated that one thousand dollars, being torn
per cent, on the bill for ten thousand daUan,
had been allowed as damages, on the return of
the bill from New Orleans, with a full kiKiwl-
edge of alt the facts of the case, and of all the
principles of law on which the same was
claimed. The respondents do not admit that
this was done under a clear mistake of the
law; indeed, two of the complainants were
lawyers of celebrity, and deservedly high rank,
and no ignorance of the law can be imputed to
them. T^e respondent* allege that their nlaim
to damages is within the provisions of the atat-
ute of Kentucky; and, if not so, they are en-
titled to daioages to the amount, for the al'nwed
nonpayment of the draft at New Orleans, and
they resist the claim to set aside the allowaDce
of damages fairly and Toluntarily made b; tbe
*The respondents also sa^ that all the ['Si
grounds of equity alleged in tbe bill occurred
to the complainants more than Sve jears next
before the commencement of the suit, and are
barred by lapse of time; and they further al-
lege that the damagea were liquidated, assented
to, and discharged, more than five years next
before the commencement of this suit; and all
claim to relief, on account of tbe same, is
therefore barred by the atatute of limitation.
The cause came on (or a final hearing in No-
vember, 1836, and the Circuit Court decreed
that the plaintiS's be perpetually enjoined from
taking out execution for the sum of one thou-
sand dollars, the amount of damages chargrd
on the bill, with the interest charged on the
said sum of one thousand dollars, up to tbe
time of the judgment. The defendants ap-
pealed from this decree.
The case was submitted to the court on pint.
ed arguments by Mr. R. Wicklifle and Mr. John-
son for the appellants, and by Mr. Oooley, Ur.
Turner, and Mr. Allen for the defendants.
For the apppllants, it was contended in ths
argument of their counsel that tbe decree of
the Circuit Court was erroneous, on the follow-
ing grounds;
1, Because the complainant* were liable ta
ten per cent, damages, under the statute of
Kentucky.
2. They were liable to damages, under th*
law merchant, independently of that statntc.
IHB Bakk a THE Unitsd SxATia v. Dakiu n At.
I> 1819, when tLe agreement was mkds to p*;
tb« damages, the atatute of Kentucky had not re-
relvAd a jiiJifial construction. Two decUiona
kAve aince been given upon it; but, *t that time.
tike parties were left to their own interpretation,
with Bufh light ai the words, the spirit, and
the obj'^ct of the statute afforded. This inter-
Erctation, the complainants contend, is shown
> be erroneous by these subsequent decisions.
In the question of mistake, we conceive it
B roper that this court should look to the same
ghtR the parties themselves bad, and refuse
relief, unless it shall appear they did in truth
corn mi t an error. The question is not what
the courts have since decided, but wheth-
er the parties, in 1819, mistook (he law, when
they believed this bill bore damages. Were it
13*} purely a question of the construction 'of
A Kentucky statute, we adroit the Kentucky
decision, however erroneous, would be fol-
lowed- But the question is one of mistake,
and no decision can have such retrospective
Bwer as to convert what was once truth into
Isehood. It would be as mischievous as an
ex post facto law, to permit a subsequent deci-
aion to overturn the fair compromises and con-
tracts of individuals, made under a dilferent
and a correct view of taw. If there was mis
Uke, the mistake was committed in IBIO. If
right to relief CKiats, it existed as early as 1S19.
Now, if the court regards these subsequent de-
daions as conclusive, then they will in substance
decide that, although no mistake existed when
the contract was made, and at that time the
agreement was fair and binding, yet some two
jrear* afterwards a Kentucky decision created
a mistake, and annulled a previous contract
th»t was legal and valid. Under our Constitu-
tion, no statute can have such a power of dis-
solving the obligation of contracts, and cer-
tainly a decision cannot go higher. We believe,
then, we may safely conclude that the com-
flainants cannot show a mistake aa early as
Sl&i or, in other words, must show it by the
true construction of the statute itself, giving to
these decisions the weight they deserve, and no
The statute is in these words, viz.;
"If any person or persons shall draw any
bill or bills of exchange, upon any person or
persons out of this State, on any other person
or persons within an^ other of the united
States of North America, and the same being
returned back unpaid, with legal protest, the
drawer thereof, and all others concerned ahall
pay the contents of the said bill, together with
legal interest from the time said bill was
protested, the charges of protest, and ten pounds
per cent, advance for the damages thereof, and
M> proportionabty for greater or smaller sums."
The complainants contend that as James
Daniel, tbe drawee, was a citizen and resident
of Kentucky, at the drawing and negotiating
of the bill, it did not come within t!ie statute,
«nd make tfaem liable to damages.
The bill was payable out of Kentucky, and
there was no designation on the bill of the resi-
dence of James J^nlel, other than that of the
pUtoe of payment. These circumstances, we
contend, bring it within the meaning of the
■tatvte, and we regard James Daniel as drawn
worn, at tbe place where tbe bill was payable;
^Mch place, Ming out af Kentucky, brings it
t b«4.
to this, that he was drawn on out of that Stat*.
It will be observed that the statute does not
make tbe damages depend upon the residence
of the drawee; and It has been decided in Ken-
tucky *thBt the residence is imroBtcrial. [•!•
If it neither depends upon the residence nor
place of payment, the question of damages,
under this statute, must be determined by the
mere casual locality of tbe drawee, as in or out
of Kentucky, at the time of drawing the bilL
The locality of individuals in the West is ex-
tremely transitory, and difficult of being exact-
ly known at any given time. If tbe damages
be made to turn upon that fact, it would fre-
quently happen that damaces would be incurred
when none were expected by either party. For
ville, who happened, however, at the time, to
be across the Ohio River, and, of course, out
of the State of Kentucky; or It might be drawn
payable in Kentucky, and the drawee out of
the State; in both these cases the bill would
bear ten per cent, dnmages. Yet the parties
could not have contemplated such a result, nor
would the cBxes come within the mischief the
statute was intended to remedy. Such a oon-
struction, then, leads too far; it involves us in
absurdities. There is a ttide difference be-
tween the actual locality of an individual and
the locality given to him by the bill of ei-
changp. The former is a matter entirely im-
material, so far as the bill of exchange is con-
cerned; it has nothing to do with the damages
sustained by the holder on the nonpayment of
the bill. With tbe tatter, it is otherwise. Had
the courts of Kentucky duly considered this
distinction; had they attended to the mercantile
language of this statute, and the mischiefs it
was intended to remedy, instead of looking to
its bare letter and grammar, we believe no difii-
culty would have arisen in its construction.
Where no place of payment is designated in
tbe bill of exchange, it is presentable for ac-
ince and payment at the residence of tbe
drawee. Such a bill is drawn on the drawee
at his residence; and if that be out of Kentucky,
the bill is, both in letter and spirit, within the
' ite. Here the actual locality of tiie drawee
limportant; the bill fixes his locality at his
residence, by its being the place for acceptance
and payment. When a place of payment is
fixed by the bill, both the actual residence and
locality of the drawee become immaterial; the
bill fixes Ha locality at the place of payment
and there alone is he to be sought. It become*
the place of presentment for acceptance and
payment, and the drawer and indoraere cmi-
tract, by tbe bill, that the drawee shall there
be found for all the purposes of the bill. !■
the language of meictiniils, the drawee ia drawn
upon at that place, siid if the place be out of
the State, he is drawn upon out of *the [*S«
State, and comes within the statute. (Sted
Wood v. The Fanners' and Mechanics' Bank of
Lexington. 7 Monroe, 284; Clay v. Hopkins, 3
Marshall. 4X8.
2. The bank claima these damages independ-
ently of the Kentucky statute.
i'iiiu">t b« denied that this bill comes with-
in (he spirit, if. indwl. II be out of the letter
of the Statute. This was conceded in the csa*
of CUy V. Hopkins. As w* have before re-
Sursiiuc CoUBT or ibb Umitcd Statu.
DMrlced, these statutor; dauBges wer« giv«a
not «s ft penalt}', hut as compenaatioQ for real
injury and toss sustained by the holder from
the nonpayment of the bill at the place stipu-
lated; and came In lieu of the damages given
by the law merchant, in the form of re-ei-
chan^, commission, and expenses. It ia pre-
sumable the Legislature fixed a reasonable rate
of compensation; and it would not be too much
to aay the damages more frequently were be-
low than above the real injury and loss. Now,
It surely cannot be illegal for the parties to
agree between thcmaetves the amount of com-
pentatiun for this injury, nor contrary to law
to 6k that amount at the same that the law bos
flxed for exactly similar injuries. In this case
the place of payment was at the extreme limit
of the United Stati-s. and the injury the great-
est that could occur under the statute. The
complsinants seem to have forgotten entirely
the law merchant, and not to have remembered
that there was real loss to be compensated.
Under these circumstances, we conceive tbe
standard fixed by law cannot be against law;
and an agreement in pursuance of it is. upon
valuable consideration, fair and binding.
3. Their agreement, upon a full knowledge
of all the facta, to pay these damages is bind-
ing, and they cannot be relieved on account of
their mislnkc of law. How far a mistake of
law will invalidate a contract, and form a
ground of relief in chani'pry, has never been
very clearly settled. In Mr. Story's Commen-
tanes on Eouily (Vol. I. 121 to 154) will be
found au able and full discussion of the ques-
tion. The English and American decisions arc
collated and examined, and the views of the
civilians adverted to. The result of his re-
searches and examinations was that a mis! a ice
or ignorance of law forms no ground of relief
from contracts fairly entered into, with a full
knowledge of all the facta. There may be
some exceptions, but the cases are few, and
generally stand upon some urgent pressure of
circumstances. The same doctrine is expressed
by the Supreme Court of the United States in
the case of Hunt v. Kousmanier, 1 Petera, 1 to
15, where the court remarks; "We hold the
40*] general rule to be, that a miatake *of this
character (a mistake of law) is not a ground for
reforming a deed founded on such mistalce;
and, whatever except) ona there may be to the
rule, they will be found few in number, and to
bave something peculiar in their character."
The few cases which form exceptions to the
rule will usually be found to contain some oth-
er ingredient than mere mistake or ignorance —
such as surprise, undue influence or oppression
^-and where such ingredient is wanting, the
mistake has been one of a plain, well settled
edged principles of law, and what will consti-
tute a doubtful question. Yet it may be con-
sidered that a claim founded on a doubtful or
doubted question of law, forms a good consid-
eration for any contract concerning that claim;
and that such a contract, If otherwise unobjec-
tionable, will be upheld.
Now, of all the questions and difficulties
which the law presents, there la none of more
admitted tmeertainty than tbe construction of
tutea. It ia often impoaaibl* for tbe beat
lawyer, upon tbe calnmt and mobt attciiti**
JHTestigation, to determine the eztent to whtch
judicial construction will carry them. Some-
times they are limited by tbe letter, aX othera
extended by the spirit. For example, look to
the statute of frauds and perjuries, and to the
statute of limitations. They are plain and um-
ple in their language, yet it has cost millions to
give them a judicial construction. And when
books had been written upon them, and the
British eourta had exhausted their learning and
refinement, one or two Kentucky derieiona de-
stroyed, in that State, the whole, or almost tbe
whole fabric of their judicial construction. We
presume, however. It muat be conceded that
the construction of this statute was at least a
doubtful question of law. Of that there is
abundant evidence in the opinion of the Chirf
Justice of Kentucky, and in tbe legislative con-
struction of the act. At this time, were the
(Question raised in the Kentucky courts, we be-
lieve it more than prnhable the opiniun of the
Chief Justice would be considered law. Even
there, at this time, it may be considered mora
than doubtful whether any mistake has been
committed.
But we do not consider this a case of ordi-
nary mistake of a point of law. The Kgree-
raent was in exact accordance with tbe general
understanding of the law at the time it was
made. Nine tenths of the legal men in Kra-
tucky would have pronounced the constractiaa
given by the parties correct. Two years after-
wards, the Court of Appeals, in another caw,
gave a different construction. The communi-
ty 'would be in a miserable condition if, {'41
at every change of opinion upon question! of
law, all their previous contracts and scttle>iienta
were to be overturned. Men could never know
the end of their controversies, were such a inta
to prevail. Upon this subject, the remarks of
Chancellor Kent, whose deciaiona are almnst
reverenced throughout the Union, are so perti-
nent and just that we could not do better than
make a short extract from them: "A subee-
quent decision of a higher court, in a different
case, giving a different exposition to a point of
law from the one declared and known, when a
settlement between parties takes place, cansot
liave a retroapectlre effect, and overturn aurh
settlement. The courts do not undertake to
relieve partiea from their acts and deeds fairly
done, on a full knowledge of facts, though lu-
der a mistake of law. Every mnn is to be
charged at his peril with a knowledge of tbe
law. There is no other principle which is safe
and practicable, in the common interpourae t4
mankind. And to permit a subsequent judicial
decision in any one case on a point of law ta
□pen and annul everything that has been doM
in other cases of a like kind for years befoK
under a different understanding of the la*
would lead to the most mischievous conse-
quences. Fortunately for the peace and hap-
piness of mankind, no such pernicious pnc-
edent is to be found. The case is, thrrefoft,
to be derided according to the existing state of
tbingi, when the settlement in question tost
Elace." See Lyon t. Bichmond, 2 Johns. Oiaa.
.ep. 60,
Had the opinion been delivered in thla veij
case, it could not bave been more directly tf-
plicable. litis case ia not cited because ttM*
IMS
Tax Bakk or tjoc Uinm Statu t. Dariel n ai.
<1
Are but f«w on the Mine point, but to sbow
that it ia the uaderBtundiiig of tbe law pre-
vailing at the time oi the ■ettlement or con-
tract, even though it may have heea erroneous,
which ii to govera; and tliat the Bubsequeut
Betllemeiit of a question of law, by judicial de-
daiona, does not create a mintake of law which
courts will ever rectify.
Aa tills court i« governed by correct chancer;
law, and not tbe deciiiona of tbe Kentucky
courts, it would almost Mem needless, after the
thorough and able examination contained in
Story's Commentariea above referred to, to cite
further authorities. Yet it will be found that
tbe Kentucky decisions, on thia point, are in
accordance with tlw principles laid down by
Mr. Story.
bi the caae of Pattenon, etc., t. Hughes, etc.
41*] S Marshall, 331, it 'ia laid down that
a iniitake of law, with a full knowledge of the
facts, is DO ground of relief.
In the caae of Taylor r. Patrick, I Bibb,
168, it is held that if the parties to a eompro-
■niee understand the facta correctly, erroneous
deductions of law from those facts by a party
would not be ground for tbe setting aside the
■ettlement Induced by those deductions.
In Tennessee, the same doctrine aa to mis-
talces of law was established in the case of
Lewis T. Cooper, Cooke, 467. In Virginia, it
was established in the case of Brown t. Arm>
•tead, e Rand. £94.
In a late case in Kentucky (not yet reported),
the court held that relief for mistakes of law
could only be granted under the following cir-
cnmstancea: 1st, Tbe mistake must be of a
plain, well settled principle of law; and 2d, The
mistake must go the whole consideration of tbe
■igreement; or, in other words, there muetbeno
other consideration than the mistaken legal li-
sibilitT. If this case be law, of which there
may be some doubt, it still settles the question
against the complainants In this case. There
was no plain, well settled principle of law
i*h[ch was mistakeB. Nor aid the mistake.
If any, go the whole consideration. Besides
tbe doubtfulness of the claim, which ia a valu-
able consideration (see Taylor v. Patrick, 1
Bibb, 168; also, 2 Bibb, 460; 8 Uonroe, 91),
there was also the liability of complainants to
damages by the law merchant, aoout which
there could be no mistake-
On the subject of consideration, it was held
by the Supreme Court of the United SUtes, In
the case of Thornton v. Wynn, 12 Wheat. 183;
4 Cond. Rep. M8, that if an indorser of a
bill who bad been discharged from liability by
the laches of the holder in giving hini notice,
with a full knowledge of the facts, promises to
pay the bill, his promise binds him. Here
there was no legal liability, but perhaps a mor-
al one, to save the bolder from loss. In our
caae there was a legal and moral liaUUty to
compensate his loss.
We contend the claim to relief is barred by
lapse of time, although the statutes of limita-
tions do not, in express terms, apply to suits
In chancery; yet it is a well settled rule that
equity will follow them, and not decree re-
lief when, in similar eases, the statutes would
liATa barred at law. Could, then, a suit have
been brought at law; and if so, what length of
tine would hare bamdt
• It. ed.
From tbe allegations of tbe eomplainants, tt
appears this bill of exchange, wita the dam-
ages due upon it, were paid off, and the bill
'surrendered up in 181B. It is said paid (*4S
off, because, by their own showing, it so ap-
pears. They did not pay part, and give their
note for the balance; but they obtained a dis-
count of a note executed to one Mr. Arm-
strong, and with the proceeds of the discount
paid off the whole balance of the bill. By
discount, we usderetand a purchase, so that
thia Armstrong's note was sold or assigned to
the bank, and with the price they received for
it the bill was paid. Now, if this be true, the
parties could luive brought an action of as*
sumpsit against the bank for money paid to
it by mistake. Thia action accrued In ISl&i
and this suit was not brought until 1827, more
than eight years after the right to relief ae-
cmed; for all actions of assumpsit in Ken-
tucky, the limitation is five years. That, by
the indulgence of the bank, this note was nA
paid off, is neither a legal, equitable, nor moral
answer to the statute. It began to run from
the time the settlement took place, and the
mistake, if any, happened. Then the right
accrued, if it ever did. Perhaps, however. It
may be said that the limitation should only
run from the time of discovering the mistake.
Admit it. The Court of Appeals gave their
construction to the statute U 1821, six yean
before suit was brought.
It is alleged, also, that there was an aipri
agreement, by which the proceeds of the dis-
count were to be applied to tbe payment of the
bill. This agreement certainly doee not pre-
vent Its being a payment. That it was agreed
to be a payment, rather confirms than weakens
the position that the bill was paid.
On the subject of the Jurisdiction of this
court, ws would further remark that the de-
cree directs a thousand dollars, with Interest,
from the time of allowing damagea to the date
of the judgment, to be credit«d on the judg-
ment. This judgment borne Interest, as sp-
pears by the complainants' bill. The time of al-
lowing damages was July, ISIS, as appears by
the bill, and the agreed facts. So that inter-
est was compounded at the date of the judg-
ment, which was erroneous. It should merely
have been simple interest on the one thousand
dollars to the date of the decree. This latter
mode of entering the decree would exceed two
thousand dollars at the date of the decree; and
the amount is increased by the compounding
mode adopted by the court.
For the appellees, it was stated that the caae
is one over which this court has no jurisdiction,
and that the appeal should therefore be dis-
missed. The only matter in contest between
the parties is the 'claim of the bank for 1*44
ten per cent, damages on the amount of the
protested bill. If the bank be not entitled to
those damages, and it was correct in the Cir-
cuit Court to relieve the complainants against
that amount, it was doubtlpss proper also to en-
join the bank from tbe collection of the inter*
est which has accrued thereon. But that in-
terest is incidental to, and forms no part of,
the matter in contest; and ought not to be
taken into computation In estimating the value
of the subject in dispute. The damages claimed
■re less than two tBOOsand dollars.
es tts
SUTBBKK OoraX OF XHK UNITD StaTU.
But iLould tbii court entertBin juriadictiim
of the CAM, it IB reipectfull/ iusiBted, on the
rt of the complainaata, that thera is do error
the decree.
In reviewing the decree and deciding on tha
Duitteri in contest, the court will doubtleu be
gorerned by the Ikw of Kentucky, Aa judiciAlIy
expounded by the Supreme Court of that State.
Such !■ understood to be the acknowledged
principle on which this court acts, in cases de-
pending on the laws of a particular State.
B Cranch, 22, 32; 1 Wheat. 270; 10 Wheat,
IIB; 11 Wheat. 301. And as the bill naa
drawn, accepted, and indorsed in Kentuclcf,
by persona then residing and living in that
State, thoir liability for damages, on the return
of the bill, and the right of the bank to demand
damages, must depend on the particular tawa
of Kentucky. Story's Conflict of Iawb, 261,
262.
Under the law of Kentucky, the complain'
ants were not liable to damages. There wsa^
at the time the bill was drawn and accepted,
in force in Kentucky, a statute containing the
following provisions: "If any persun or per'
■onsi ehall draw or indorse any bill or bills of
eichange, upon any person or persons out of
this State, on any other person or persons
within any other of the United States of North
America, and the seme being returned back
unpaid, with legal protest, the drawer thereof,
[rom the time aaid bill was proteated, the
charr,ea of protest, and ten per centum advance
for the damages thereof, and bo proportiotiably
for a greater or smaller sum." 1 Littell's Laws
of Kentucky, 1TB; and 2 Littell's J^wb of Ken-
tucky, 103.
If not liable to damages under the statute,
the complainants cannot be liable by the law
merchant, independently of the statute. It
was competent to the Legislature of Kentucky
to regulate the liability of parties to bills of ex-
change, drawn, accepted, and indorsed within
4ft*l *the limits of the State. This was done
by the acts referred to, passed in 1TB3 and
ITOB; and, consequently, no principle of the
taw merchant, incompatible with the provi-
eions of those laws, if any aucb there be, can
prevail. Tbeae lawa, when examined, will be
found, by necessary implication, if not by ex-
press words, to exclude the law merchant from
any influence on questiona as to damages on
bills of exchange.
But, according to the law merchant, the com-
plainants were not liable to any damages on
this bill. The law of re-exchange is under-
Stood to be applicable to foreign bills only, or
to such as are drawn by a person residing in a
foreign country, on some one in this country,
or vice versa; and not to bills drawn in the
United States, upon anyone in any other of
the United States. The sUtute of Kentucky
clearly discriminates between the two classes
of bills, and recognJEes the former, and not the
latter, as foreign bills; and in the case of Ores-
son V. Williamson, etc. 1 Marshall's Rep. 454,
it was held by the Supreme Court of Kentucky
that a bill drawn in Kentucky on merchants at
Philadelphia, was not a foreign bill. The same
The character of the hUi la not, hotrerer, esB-
ceived to be material in the present case, f«r It
is evident that in liquidating the damagea, tka
parties acted on the tuppo^iition that the bill
was embraced by the Act of 17B8 of Kentnckji
and the damagea were included in the note,
not on account of any aupposed liability in IIm
complainants for le-BXchanKS upon the general
principles of the law merchant, but under the
mistaken belief that they were liable under the
act for ten per centum lUmages on the amonBt
of the bill. If such was not the underatmadinj
and intention of the parties, it is strange that
they should have Included in the not« damaigea
to the exact amount of ten per cent.; when it
>• not, and cannot be pretended, that the ax-
change between Kentucky and New Orleans
was at the time anything Like that amount-
If, then, the complainants were not liable I*
the ten per centum damages on the return d
the bill, have they Imposed on themselres a
liability from which they cannot be relieved
by the after execution of the notes to the bonkT
If, instead of including in the note the balanea
which remained unpaid of the bill as well ■■
the damages, the damages only had been in
eluded, there could, it is conceived, be no aeri
Dus doubt on the subject. The note wonli
then have been founded on no sufficient con
aideration, and under the laws *of Ken- [*4i
tucky authorizing defendants by special plea
to go into and impeach the consideration, tbe
complainant' might have defeated a recovery
at law. The case of Ralston and Sebastian v.
Bullita, 3 Bibb, 262, decided by the Supreme
Court of Kentucky, would be decisive in auek
a cose. In that case It was decided that • bond
given by an indorser of a bill for the amount,
after he was discharged of hia liability, bv t^
neglect of the holder to give notice, mig{it be
Bvoided by plea, impeaching the con si deration-
In the opinion delivered in that case, the court,
after showing that the maker of the note was
at the time it was executed discharged from
liability to pay the bill for which the note was
given, make use of the following remarlca. via.:
"If, therefore, the defendants were wholly
discharged from any reaponaibility for want of
due notice of the non-acceptance of the InU,
the bond given for the payment of the amount
of the bill woa without consideration. A prom-
ise to pay in such a case, is held not to be land-
ing. Blesard v. Hurst, G Burr. 2670; Kyd,
US. Nor would the eircumatanee that the
promise was reduced to writing make any dif-
ference, for a written, no moie than a verba)
promise, is binding, if made without consid-
eration; and the Act of ISOl (2 Littell'a Laws
of Kentucky, 442) having authoriied the de-
fendant in an action upon a bond or other
writing under seal, by sjiecial plea, to impeack
or go into the consideration, in the oame man-
ner OS if such writing had not been sealed, it
evidently follows that the bond on which mil
is brought, is in thia respect placed upon Uw
same footing as a verbal or written promi**,
and consequently not binding on the defa»l-
ant." Since that case was decided, many oth-
ers of like character have been brau^t oefor*
the courts of Kentucky, and in no one instano
has the correctneaa of the principle on which il
turned been doubted, or its authority departad
(I'om. It haa now become the aettled and b-
Thk Bamk or TBI Unitbd Statcs i
flexible rule bj* which Ulcc casea are decided ii
tlwt State, and should be aanctioned hy thii
conrt, so far, at least, as respect* ca»es depend
lag on the lawi of Kentucky.
But the note la not for the damages only; it
Inaludes the amount unpaid of the bill sa well
>• the ten per centum damages. The note
not, therefore, with propriety, be said ti
without consideration. The liability which
tbe complainants were under to pa; the sum
rvmaining unpaid on the bill, was a auBicient
consideration for any promise or note which
thajr might make for that amount. As to that
unount. therefore, there was an adequate con-
•idention for the note executed by the com-
4T*] plsinants. But their liability In that 're-
spect formed no sufficient consideration for any
not« or promise which they might make for
the ten per centum damages on the amount of
the Inlli and as to that amount contained in the
note, it waa as clearly voluntary and without
consideration as if contained in a separate note.
It was not, however, competent for the com.
plaiitants, by pies at law, to draw in question
the right of the bank to tbe damages, as they
mi^t hare done, if nothing but the damages
had been contained in the note. Such a de.
f«nse would have gone to part of the consider,
ation of the note only, and is clearly inadmis.
■ibie under the Act of 1801 of Kentuclcy, ae
Judicially expounded and settledby many cases
in the Supreme Court of that State. 1 Bibb'i
R. BOO; 4 Bibb, 277; I Marsh, 108; 6 Mon
roe, 274; 1 J. J. Marsh. 4BB. It does not
however, follow that, because they could not
defend at law, the complainants are without
redress. Their case is one proper for the aid
of a court of equity, to wMch they have ap-
plied for relief.
Tbe appellanta contend that tbe claim of ap-
pelleea to relief was barred by the lapse of time
and the atatute of limitations.
On the contrary, we suppose that neither
lapae of time nor the statute of limitations ap-
ply to the case, or bar the right to relief.
In the first place, to make out their case, the
appellants assume the fact that the payment
made in 1819 on the bill of exchange, was first
applied to tbe discharge of the damages claimed
by the bank, and the remainder to tbe bill, and
the new note given for the residue of the bill ;
whereaa there is neither allegation nor proof
tbat this was the case.
The same remark applies to the assumption
that tbe mistake of want of liability for the
damages was discovered more than Are years
bflfore this suit was instituted.
Bat suppose that in each particular the facts
of the case bore out the counsel of the hank In
their assumption, still, lapse of time nor the
atatute of limitations does not cut off tbe right
to relief. That right in equity attached to the
new note when given, and haa fallowed tbe
d«bt ever since as a living equity, against en-
forcing its collection to tne extent of a mis-
take. To that extent there was no eonsidera-
tlon for tbe note.
Suppose a note ia given without any eonsid-
etntioti at all, is tbe party who gives it bound
to file his bill in Bve years after its dat«, and
fmS that it may be cancelled; or may be wait
UBW thara is an attempt to enforce it, and then
4S*] ■Hsft U> equity 1 Doas not tlw 'equltr
• L. ed.
against the obligation subsist as long U the
[e^l right to enforce itt If it does when it ap-
plies to the whole demand, does it not when it
applies to a partf
If a partial payment had been made eighteen
Sars on an oblig "'
contended
waited that long and n
is barred from setting up the paymenti The
same may be asked if the whole debt bad been
Now, in equity, that which was paid In
ISIB was a credit on the whole debt, and if it
were not ell applied, a court of equity will
treat the subject matter as if it had been ap-
plied, and will restrain the obligee from collect-
ing the part paid and not credited.
If, in 1BI9, Daniel and others had paid the
bank one thousand dollars to extra or usurious
interest on tbe debt in controversy, and a new
note bad then been given for the residue of the
debt, whicb tbe bank was now attempting to
coerce; would not a court of equity apply the
one thousand dollars as a credit to the debt and
legal interest due in ISIQ, and treat it as a pay-
ment made on the same at that time? This ia
a familiar instance of the application of tbe
principle contended for. Equity disregards
forms, and marches directly forward to the
justice of the case; it considers that as actually
done which in good conscience should have
been done; it does not apply the credit now,
but considers it as applied in 1819. Hunca
neither lapse of time nor the statute of limita-
tions apply to the ease.
Mr. Justice Catron delivered the opinion of
the court:
To a just comprehension of the legal ques-
tions arising in this cause, it becomea necessary
that the facts be stated In the form and sense
they present themselves to the court. ,
The first transaction giving rite to the con-
troversy was a bill of exchange, in the follow-
ing words:
"Exchange for 10,000 dollars.
"Lexington, October 12th, ISIS.
"One hundred and twenty days after date,
of this my first of excKangc. second and third
of same tenor and date unp^iid, pay Henry
Daniel, or order, ten thousand dollars^ at the
received of him; which, charge to the accouut
of yours, etc., ROBT. GRIFFING.
"To Mr. James Daniel,"
'James Daniel duty accented tbe bill, [*4t
and it was Indorsed by Henry Daniel, Isaac
Cunningham, and Samuel Hanson, to the pres-
idenl. directors and company of the Bank of
the United States.
When it was made and accepted, the drawer,
Grifling, and James Daniel, the acceptor, re-
sided and were in Kentucky, where the trans-
action took place. The Indorsere, Henry Dan-
iel, Cunningham, and Hanson, also resided
The hill was transmitted to New Orleans for
psj'ment; but, not being paid, it was regularly
protested and returned, and the bank looked
to the drawer, acceptor, and indorsers for the
payment of principal and interest thereon, froq
the 0th Fehruarr, ISlB, the time it fell due,
tM
StTFUllE COUKT Of TlIB UtllTB) STATKS.
togetlUT with chu-gM of proteBt, uid ten per
centum (Uina(;es on the principftl. Grlffing,
the maker, and Jamea Duniel, the acceptor,
tielieving the claim for damages to be legal,
paid the bank, July, 181S, the sum of three
thousand three hundred and thirt; dollari and
■lity-iet'en cents, on account of the aggregate
Wnount due and supposed tc be due; and, for
the balance, QrlffinB and James Daniel exe-
cuted their Dutiable note for eight thousand
dollars, payable siity days after date to Wil-
liam Armstrong; to which, Cunningham, Han-
•on, and Henry Daniels were parties, either as
eo-drawers or indorsers, and which was dis-
counted by the office of discount of the Bank
of the United States, at Lexington, for the
beneflt of GrifGng and Jaioes Daniel, upon tlie
express agreement between the parties making
and indorsing the note with the bank, that the
proceeds should be applied to the payment of
the balance due on the bill.
Griffing and James Daniel were the prinei-
Bil debtors, and Cunningham, Hanson, and
enry Daniel, sureties. The principals paid
five hundred dollars, in part discharge of the
note; and, in August, 1S20, GriiGng. James
Daniel, Henry Daniel, Cunningham, and Han-
son, executed tlicir joint note to the bank for
•even thousand Ave hundred dollars, payable
sixty days after date, for the balance. Grilling
hanng died, and the note for seven thousand five
hundred dollars not having been discharged
when due, the bank sued James Daniel, Cun-
ningham, Henry Daniel, and Hanson, in the
Circuit Court of the United States for the Dis-
trict of Kentucky, and recovered a judgment
•t law for the principal and interest, at what
time does not precisely appear.
In 1827 the defendants to the judgment at
law filed their bill in equity in the same court,
and, after setting out the facts substantially, as
Sljove, further alleged— "they were advised
'0*] the bank was not 'entitled to ten per
centum damages, on said protested bill of ex-
change, inasmuch as the drawer and acceptor
thereof both lived in Kentucky at the date and
maturity of said bill; and that, therefore, so
much of said eight thousand dollar note as ex-
ceeds the balance due on said bill for principal,
interest and damaftes (after deducting said pay-
ment of three thousand three hundred and
thirty dollars aixty. seven cents), was included
In said note by mistake; as to the legal liability
of said GrilGng and James Daniel for said ten
per cent, damages, and as to said excess, said
note was executed without any consideration
whatflTer."
The complainants also alleged that the fail-
ure of consideration, on which the note for
asven thousand five hundred dollars was
grounded, being partial; relief against the ex.
cess, in the note and judgment, could only be
bad in a court of equity; and prayed the bank
■night be restrained, by injunction, from the
collection of one thousand five hundred and
fifteen dollars, the excess that entered into the
judgment, because of the miBtske.
At the November Term, 1827, an injunction
was ordered by the court, restraining the bank
from proceeding to collect one thousand Ave
hundred and fifteen dollars, part of the judg-
ment, until the hearing.
Tha bank auvared, admitting the statemeota
of the complainant* in raferenee to the liquid
tion of the bill of exchange, and the part pay-
ment and renewal of the eight thousand dollar
note, and further averred that, on the return of
the protested bill, the sum of one thousand dol-
tars, being ten per cent, on the amount thereof,
was claimed by the respondents as tbcir dam.
ages; and the claim was assented t^ by the
complainants, with a full knowledge of the
facts upon which it was founded, and all the
princfplea of law upon which it was asserted;
and in pursuance of such assent, the amount
of said bill, with interest, and the one thousand
dollars damages, was liquidated and dis.
charged by complainants in msnner alleged;
but aver, respondents cannot admit "thia was
done under any mistake, cither as to fact oi
law; indeed, two of complainants were law-
yers of celebrity, and of dp'ervedly high raak.
and respondents cannot impute to them igno-
rance of the law, and ignorance of the facts is
not pretended."
The respondents further alleged that, by a
statute of Kentucky, bills of exchange drawn
by a person in that Stnte on another out of the
State, when returned protested, bore ten per
cent, damsgoa, besides interest; and, independ-
ently of the statute, (he bill for ten 'thou-t'Si
sand dollars was subject to damages for re-ei-
change and expenses; that the effect of tW
statute was to reduce to uniformity and cer-
tainty, the amount to which the holders wtn
entitled, in consequence of the money not be-
ing paid at the place agreed upon, and th^^ Iom
arising from difference of exchange and ex-
penses. Tt is insisted the claim for damages
comes within the statute; yet, if not within it,
that respondents arc entitled to equal damaj^ra
with those pven by the statute, their risk and
loss being the same.
In bar of the claim, the respondents say that
all the grounds of equity alleged in the bill ae.
criied to complainants more than five yeara next
before the com men cement of the suit, anil are
barred by the lapse of time; they furllier a|.
lege that the itamiiges were Hquiila ted. assented
to, and discharged, more than five years nest
before the commencement of the suit, and all
claim to relief is barred by the statute of limit-
ations.
The allegations in (he complainants' bill not
responded to are admitted. To which anawcr
a general replication was filed. The onljr evi-
dence in the cause was an agrpement of facts
entered into by the pirtiea, to wit; "It is
agreed that the statements contained in said bill
as to liquidation of the bill of exchange of ten
thousand dollars are true. It is also agreed
that this liquidation was on the 8th day of
-luly, 1811), and that no interest was charged
Tip to that time, except upon ten thousand dol-
lars. It is also admitted that such renewala of
(he eight thousand dollar no(e were made oa
are stated in said bill, and that the Judgment at
of the notes given in r
he November Term, IP^e, and decreed "that
B credit be entered on the judgment «t la* oh-
lained by the defendants a^inst the plaintifc
as set forth in the bill for one thons«ad M-
lars, the amount of damage* ch»rg«d «■ tb*
protested HM, with sll Interest charged iMMii
Peten ta.
1W8
Tdk Bamk or THE Ukitko States \
Dakikl I
El
niB up to the time of the judgment; and that
tka defnidBiltB be perpetually enjoined from
taking out execution on said judgment for the
■uBi thn* deerped to be credited, but the de-
cree not to affect the balance of the judg-
From which decree the presidcDt, director!
«nd companjr of the Bank of the Unitnd States
appealed to thia court.
TIm flret question rnteed on the facta, and In
advance of the merits ie, whetlier the matter
in controversy in the Circuit Court was of
sufficient dignity to give thie court jurisdiction
by appeal.
ftl*] *The act of Congress provides that ap-
peals shall be allowed to the Supreme Court frnm
Anal decrees rendered in the circuit courts in
caeca of equity jurisdidion, where the matter
in dispute, exclusive of costs, shall exceed the
Bum or value of two thousand dollars. The
expression, sum or value of the matter in dia-
Kte, has reference to the date of the decree
low, alike in case of appeals in equity, and
writs of error at law; they are each grounded
on the original process of this court, operating
on the final decree or judgment, and are limit-
ed to the sum or value then in controversy, and
of which the decree or judgment furnishes the
better evidence, should it furnish any. The
natter iu dispute below was a claiiu to bave
ieducted from the judgment at law one
thousand dollars, with interest thereon, after
the rate of six per centum, from the Sth of
July, ISIO, up to tbe date of the decree, in No-
vember, 1636, being upwards of seventeen
yaan; and the Circuit Court decreed the
reformation to he made of the judgment at
law by expunging therefrom, and as of its
d»te, the one thousand dollars with the intere-st.
The effect was to cut olT the interest that had
accrued on the one thousand dollars from the
dat« of the judgment in 1827 to that of the de-
creo in 183G, interest on the principal sum re-
covered being an incident of tbe contract by
the laws of Kentucky, aa well after judgment
aa before. The practical consequence of the
decree will immediately be manifest when the
bill is dismissed by the order of this court; the
appellants will then issue their execution at
law, and enforce the one thousand dollars.
with the accruing interest, from th% 8th of
July, 1819, until payment is made; it follows
that upon the most favorable basis of calcula-
tion, and disregarding the statute of Kentucky
of 1798, giving ten per cent, damages in addi-
tion to legal interest on sums enjoined, the
amoont to which the decree l>elaw relieved the
appelless, and deprived the bank of the right
of recovery, was two thousand and forty dol-
lars; that is, one thousand dollars principal,
with seventeen years and four months of inter-
rat, this being the aggregate amount in dispute,
and enjoined by the decree, of course the Su-
preme Court has jurisdiction.
The second question raised by the record,
rrats msinly on the pleadings in the cause. It
ie alleged the bank was not entitled to ten per
cent, damages on (he protested bill, inasmuch
aa the drawer and acceptor both resided in
Kentucky; that the eight thousand dollar note
[■eluded the damages of one thousand dollars
through niatake, and m far it wanted eonsid-
arstloa.
• L. •«.
The defendant* deny this waa done t*SS
through cither mistake of the fact or law; insist
tlivy were entitled to ten per cent, damages by
the statute of Kentucky; but if the statute did
not apply, they were entitled to damages for
re-exchnnge and charges, and that the statute
was justly referred to for the rule settling tbe
measure of compensatioQ.
As no mistake of the facts is positively al-
leged, and if impliedly stated, is directly and
poBilively denied, we must take it no such mis-
take existed; and such is manifestly the truth.
Ill regard to the mistake of law. however, the
peadings can settle nothing; they make an
iasue, and refer it to the court for decision, n
the local and grnetal laws governing damages
on bills of exchange of the character of the
one set forth.
The statute, by force of which the bank
of exchange upon any person or persons out
of this State Ob any person or persons within
any other of the United States of North
America, and the same being returned back
unpaid, with legal protest, the drawer thereof
and all others concerned «hal1 pay the contents
of said bill, together with legal interest from
the time said bill was protested, the charges of
protest, and ten pounds per cent, advance for
tbe damages thereof, and so proportion ably
for greater or smaller sums."
In 1821 the Court of Appeals of Kentucky
gave a construction to their statute in the case
of Clay V. Hopkins, 3 Marshall. 489. where it
was holden that where the drawer and acceptor
were both of Kentucky, and the transaction
took place there, the statute did not apply, al-
though the bill was made payable in Baltimore.
That and this case are alike m all their features.
In a subsequent cause of Wood t. The Farm-
ers' and Mechanics' Bank of Lexington, T Mon-
roe, 284. the same court held that a bill ad-
dressed to "Mr. J, J, Wood, New Orleans,"
was within the statute, and drew after it ten
per cent, damages on protest, dislinguishing
Wood's case from that of Clay v, Hopkins, be-
cause the acceptor was addressed at the foot of
the bill as of Kew Orleans, although in fact he
was of Kentucky.
This court, in accordance to a steady conrse
of decision for many years, feels it to be an in-
cumbent duty carefully to examine and ascertain
if there he a settled construction by the State
courts of the statutes of the respective States,
where they are exclusively in force, 'and I*B4
to abide by and follow such construction when
found to be settled.
Looking to the two adjudications In Ken-
tucky, on the construction of the statute of
170S in the spirit of ^he rule we have laid down
for our government, and without any reference
to the misgivings we may entertain of the cor-
rectness of the construction, declared to be the
true one in Hopkins v. Clay, we have come to
the conclusion that Wood's case did not over-
rule the former. It is therefore declared by
this court that the bill of exchange for ten
thousand dollars, drawn by Robert GriSing.
although payable at a bank in New Orleans,
did not, by force of the atatute of Kentucky,
subject to drawer or others bound to take It
up, to the payment of ten per cent, damages.
til
Sunuu Couir of tht Uhith) States.
18--
Hot btving been entitled bj the statute, the
HOpallftnta insist they were authorized to
obarge damages by cotmnercial uiage, and that
the statute preaeribed a fair mpasure.
The BBBumptian that the holder could law-
fully deiiiB.nd damagea, depends on the fact
whether the bill tvaa foreign or inland; if
foreign, then the banic had the right to redraw
from New Orleana to Lexington, for such
amounts aa would make good the face of the
bill, including principal, re -exchange and
chargea, with legal intereat; the law does not
Inaiat upon actual redrawing, but the holder
may recover the price of a new hill at the place
of protest. Had a jury been called on to aasesB
the amount due, proof of the exchange againat
Lexington would have been neceaaary to the
recovery of damagos, on the ground of re-ex-
change; hut the parties themselrea having
liquidated them at the rate the statute of Ken-
tucky allowed in cases very similar, we must
presume, at this distant day, aside from any
Firoof to the contrary, that ten per cent, waa
air compensation; it may have been leas; of
thia, however, the parties were the proper
judges. Kent's Com. Lecture 44.
Whether a bill of exchange drawn in one
Btate of this Union, payable in another, is a
foreign bill, involves political considerationa ol
some delicacy, although, we apprehend, of no
Intrinsic difficulty, at this day. The reHpecttve
States were sovereign within their own limita,
and foreign to each other, regarding them as
local governmenta. 2 Peters, 6S6. Kentucky
and Louisiana, as political communities, being
distinct and sovereign, and consequently for-
eign to each other in regard to the regulation of
controcta, it follows, a bill drawn in one paya-
ble in the other is a foreign bill; and so this
court adjudged in the cause of Buckner v. Pinley
SS*] and Van Lear, *2 Pctera, GSB. The bill
in that caae was drawn at Baltimore, by citizens
of Maryland, on Stephen Dever, at New Or-
leans; whereas, the one in this case was drawn
and accepted in Kentucky, but payable at a
bank in New Orleans. Yet, we think the place
of payment, being within a jurisdiction foreign
to Kentucky, subjected the acceptor, Jamea
Daniel, to the performance of the contract, ac-
cording to the laws of Louisiana, to every ex-
tent he would have been, had he became a
party to the bill at New Orleans; and that the
effect of the contract on all the partiea to it
does not vary from the one sued on in Buckner
*. Finley and Van Lear, 2 Peters, 5S6; Story's
Conflict of Laws, sec. 281 to 286. Being
a foreign bill, and not having been affected by
the statute of Kentucky, of course the holders,
by commercial usage, were entitled to re-ex-
raange when the protest for nonpayment was
nude; and those bound to take it up having
Eid, or agreed to pay the damages, with a full
«w ledge of the facts, and a presumed
Imowledge of the law, voluntarily giving the
bank a legal advantage, it would be going Tar
for a court of chancery to take it away; the
equities of the parties being equal, to say the
least, it cannot be against conscience for the
appellants to retain their judgment.
The main question on which relief was
t for its affirmaiice, is:
court of chancary relieve against a miatake of
law! In its examination, we will tak« it tor
granted the parties who took up the bill f«T
ten thouaand dollars Included the dunagea tl
a thousand dollars in the eisht thouBand di^lar
note, and did so believing the statute of Kan-
tucky sat Olid the penalty to the bank; ajad
that. In the conatniction of the statute, the ap-
f el lees were mistaken. Vexed as the queMka
ormcrly was, and delicate a« it now ia, from
the confusion in which numerous and canlliet-
ing decisions have involved it, no discusaion of
rases can l>e gone into without hazarding the
introduction of exceptions that will be likely to
sap the direct principle we intend to apply; In-
deed, the remedial power claimed by courta of
chancery to relieve against mistakes of Inw, is
a doctrine grounded rather upon exc«ptiOB*
than upon eetablished rules. To thia couna ^
adjudication we are unwilling to yield. That
mere mistakes of law are not remedistble, ia
well established, as was declared by this coait
in Hunt v. Rousmanier, 1 Peters, 16, suid «t
can only repeat what was there said, **tlMt
whatever exceptions thera may be to the nUa,
they will be found few in 'number, and [*St
to have something peculiar in their charmctar,"
and to Involve other elementa of deeisitia- 1
Story's Ch. 129.
What is this case, and doe* it torn upon any
peculiarity? Griffing sold a UIl to the United
Statea Bank at Lexington for ten thouaand M-
lars, indorsed by three of the complainanta^
and accepted by the other, payable at New Or-
leans; the acceptor, J. D., was present in Ken-
tucky when the bill waa made, and there
accepted it; at maturity it waa protested for
nonpayment and returned. The debtors ap-
plied to take it up, when the creditors clained
bound ta pay
the bill were perfectly sware of the facta; at
least the principals, who transacted the bnsi-
I, had the statute before them, or wen
iliar with it, as we must presume; tbeT aad
bank earnestly believing (as in all prabaUl-
ity most others believed at the time) that the
ten per cent, damages were due by force of tht
statute, and inlluenced by this opinion of tht
law, the eight thouaand dollar note waa ex-
ecuted, including the one thousand di^lars
claimed for damages. Such is the case stated
and supposed to exist by the complaiiuuata,
stripped of all other considerationa standing in
the way of relief.
Testing the ease by the principle "that a
ittake or ignorance of the law forms ■•
ground of relief from contracts fairly enterad
full knowledge of the facta," aai
ratances repelling all presumptteaa
of fraud, imposition, or undue advantage hav-
ing been taken of the party, none of which nic
chargeable upon the appellants in this caaa,
the question then Is, were the complainantn oi-
titled to relief? To which we respond deeidedS}
the negative.
Lastly, the appellanta rest their i
the statute of limitations. If the thoi
lars claimed aa damages were paid to th« fan^
at the time the bill at exchange was takot np.
then the cauae of action to recover the ^tooey
(had it been well founded) aeerued at thn ttat
the mistaken payment was made, wUdt «n«U
--' — ■ It.
18M
lmr» bMQ rwUfled in equitv, or the monej n-
eovurvd back bj ■ auit >t Isw. Tbe coiirtB of
)ftw ind equity have concurrent jurisdiction;
Mid the complainant! having elected to resort
to equity, which they had th« right to do, were
M subject to be barred by the statute in tlie
one court as tn the other. In iuch caaes the
cooTts of equity act in obedience to the statutes
of limitation, from which tbey an no more
exempt than courts of law.
AT*] This suit having been brought more
than live years after the UU waa taken up, to
kpply the bar it becomes necessary to inquiie
wMther the damages were then paid. The com-
plaioants allege that they paid in July, IS19,
three thousand three hundred and thirty dollars
■Ad sixty-seven cents, on account of the whole
auuoQDt due, consisting of principal, interest,
charges and damages; and for the balance of
the amount of the bill, Griffin g and Jamiis
Duiiel executed their negotiable note for eight
thousand dollars, payable sixty days after date
to William Armstrong, to which Cunningham,
Hanson, and Henry Daniel were parties as In-
doners or co-drawers; which note was dis-
counted by the hank for the benefit of Griffing
Mid James Daniel, and upon the express agree-
ment between them and tbe bank and the
other parties to the note that tbe proceeds of
■aid eight thousand dollar note should be ap-
plied to the payment of the balance due on
said bill of exchange. The parties to this suit
Agreed in writing that the statement above set
forth was true, and tbe bill was liquidated by
the proceeds of the note, and the three thousand
three hundred and thirty dollars and sixty-sev-
If the pre-existing debt due the bank and
evidenced by the bill of exchange was ex-
tiaguisbcd when the bill was taken up, then the
remedy of the bank was gone, and the right to
recover tbe one thousand dollars ul excess arose.
It la generally true that the giving a note for a
pre- existing debt does not discharge the
original cause of action, unless it is agrmd that
tha note shall be taken in payment. 0 Craneh,
S<M. In reference to this pnnciple, it ia insisted
for the appellees that the eight thousand dollar
note given to the bank, and the renewals of it
Afterwards, fumiBhed mere evidence of tbe con-
tlnoance of the original liability, from which
they should be relieved; because tbe notes
(Mtvered too much by a thousand dollars, with
interest, so the court below thought, and de-
creed the abatement.
This court thinks the facts do not involve the
principle referred to. We are not told by tbe
mppelleea that tbe eight thousand dollar not«
yrma taken in payment of the balance of the
bill of exchange, but that three thouaand three
hundred and thirty dollars and sixty seven
cents in cash was paid, and the note discounted,
tlw money obtained upon it, and "by express
agreement applied to the payment of the bal-
ance due on said bill of exchange." The debtors
ralMd tbe cash and paid tbe bill; nor did the
et^t thousand dollar note enter Into the trans-
metUm further than that the proceeds were ap-
SS*] plied to the 'extinguishment of the pre-
exiating debt. Payment ivas, therefore, made
OB the 8th of July, 1819, and the thousand dol-
lars could have been sued for then aa well as in
1827, when tba bill of Injunetlon va* tiled. It
• Zj. ««.
followa the act of limitations Is « bar to the
appellees, aside from any other grounds of de-
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United States for the District of Kentucky,
and was ar^^d by counsel; on consideration
whereof, it is now here ordered, adjudged and
decreed by this court, that the decree of the said
Circuit Court in this cause, be, and the same is
hereby reversed, and that this cause be, and the
same Is hereby remanded to the aald Circuit
Court, with directions to that couri: to discharge
tbe injunction at taw, and to dismiss the bill m
this cause at the cost of the complainanta.
ANSON THOBCAS.
Failnr* to aver dtlienship in d'^larntion—
waiver of objection.
The demandant a sabjaet of Ihe Kins of Great
Brluiu, Instituted an action bj writ at rt^lit. In tbe
District Court for the Northem District of New
York igalnst tbe dcfesdant. a cltlien ot New York.
In ttie declaration there <•■■ no averment that the
detendaat was a clUien ot New York. Tbe defend-
■Dt pleaded to tbe Unt count In the declaratioo,
■nd demurred to tbe aecood nod third counts ; tbe
demandant Joined la the demurrer, and averred
that tbe detendsDt was a cltlien of New York, tn
ibiequent proreedlngs In the case In the
t (. ._* -. ... - -. -
that' there
I he defends Dt w
a second time befon
the Supreme Court, to which It i. .,
b* ■ writ of error, brOBeciited hj the deoandant Id
the writ ot right. The defendant moved to dismiss
(he writ of error, for the ' -• — ' -•
tbe eltlsenshlp of the deft
The court Overruled the
The Dlslrlet Court wss not bound to receive the
averment of the eltdensblp of the defendaot tn tbe
Joinder In the demurrer, snd clrsrlv oiiRht not tn
have received It If ft had been objected to bj th*
tenant. But be baa waked tbe objection hit
faltlns to raske tt at an earlier atSRC of tbe eause:
and after the praeeedlnga which have taken place
Id the DlHtrlct Court sod In this court, and when
tbe eanae has been so Iouk cnntlnued snd allnwpil
to proceed In the same condltloa of tbe pleadings
ana averments. It would be unjust to the demnnii-
Bot to dismiss It upon this mere technical Informal-
Itj. The pleadings, la tact, contain all the aver-
ments reqalred bj tbe declslona ot this rourt to
give JnrlsdIctlOD to the courts of tbe ITnltrd Rtit>«.
and as thej apwar to have been acquiesced tm by
tbe tensnt, snd regarded aa sufficient In the Dis-
trict Court, and were not objected to In Ibli eoart
when the ease was here on tbe application for a
■aftdamaa. the Informalltj cannot be rellsd on
now to dismiss tbe suit.
WRIT of error to the District Court of the
XoTthem District of New York.
Mr. Beardsley moved to dismiss the writ o.
error, it not being stated tn the writ or declara-
tion that the defendant waa a dtisen of tbe
State of New York. Tbe plaintiff is an alien,
and this is stated in due form; but nothing !■
said of the citiienship of the defendant.
The Constitution of the United States gives
Jurisdiction to the courts of the United 8t>tM
when an alien Is a party, who aaea a defendanti
■ dttnn of the SUta In which tk« mil may be
tit
Sonwiu CouBt w tarn Umm Sr^ns.
tnmi^t; uid It hu been expreMly decided
that Dotb partfe* must be itated, descriptively,
in the pleadings And where, u in this case,
jurisdiction dep .nds on the chfiracter ot the
to*] partiea, the averment of character *ie not
matter of- form, but of substance, it mftj bu
traversed; and in that event, miut be proved
like any other material fact. Cited, 6 Cranch,
303; 4 Dallas, 12; 3 Dallaa, SS2; and 1 Cond.
Bmp. 170, where sU the caua are collected in a
There Is no averment of the value of the
property in either count of the plaintiff's dec-
laration, although it appear! from the bill of
except ions to have been of the value of two
thoueand dolUre. There is, however, no doubt
of the right of the partj to prove the value of
the property to be auch aa will give the right
to a wnt of error; this is not now taken as so
objectioh to the proceeding to bring the case
before this court. The objection, so far at
reaprcts the point of value, is that the court
below had no jurisdiction, there being no aver-
ment that the property was worth more than
five hundred dollars. The defendant relies on
the abaenpe of the neceasarj averment of the
citiz^nsiiip of the defendant, as a sufficient
Sound to dismiss the writ of error, the District
lurt of New York not having had jurisdiction
to entertain the cause.
Hr. Meyer and Mr. Jones, for the defendant.
The motion to diemise the writ of error is
founded on the allegation that there is no aver,
ment of the citiienship of the defendant, al-
though that the plaintin is a subject of the King
of Great Britain is stated in the writ.
It ia too well established to permit It to be
wmtro verted that an alien cannot sue in the
courts of the United States, unless the fact of
alienage is stated, and the defendant Is stated
to be a citizen of the State in which the suit
may be instituted. This is under the provision
of the Constitution of the United States, and
under the Judiciary Act of 1T89. It must ap-
pear in the proceedings in the case that such is
the relative position of the parties.
In this case, there is an averment of the cil-
iienship of the defendant, and this will be
found in the plaintiff's joinder in demurrer;
where it is distinctly and explicitly averred
that the defendant is a citisen of the State of
New York, and a resident of the northern dis-
trict of that State. The defendant had de-
murred, and the plaintiff joined in the demur-
rer, accompanying this with an averment of
the defendant's citizenship and residence. The
question before the court is, whether this is suf-
of the cause. The parties had been before this
61*) 'court on a former occasion (7 Peters,
634), and after argument, a mandamus was
issued to the judge of the District Court, under
which the case was restored to the docket, and
after which the trial took place. In none of
those proceedings was an objection made to the
absence of the averment of the citiiwnahip of
the defendant. In the early part of the plead-
Ings.
It is not known why the averment of the cit-
izenship may not be postponed by the consent
of the partiea to the lattar part of the pleadings.
1««0
known, and therefore the objection was nol
taken. Had it been taken in the early stage of
the case, an amendment would have bsM
moved, and would have been admitted.
There ia no rigid rule which requires tlw
averment of citizenship to have a particular lo-
cality; no rule which requires a party to ei-
hitut hia case in any particular put ot the
pteadinga. A ^arty may change hia case by
avermenta, if hia opponent does not exempt t«
them. This shows that there is no judicial r«-
3uirement as to where they shall appear, if m
issent ia given by the opposite party. So, too, '
defects in pleading may be cured by implica-
tions from the pleadings of the opposite party. I
1 Chitty oti Plead. 710; I Chitty. 467. 401
These authorities show that if in the course of
the pleadings facts appear, the court will em-
eider them as facts, upon which they may ju-
dicially act.
For the honor of the common law. It will nnt
be said that it does not aid the party in exhib-
iting his case. Why else are new averments
allowed! There is no rule as to the locality o(
averments, and no rule which requires the mat-
ters to be stated In the earl; part of the plead-
ings, on which the court are permitted to pro-
ceed in the cause.
Many caaea have been adjudged in the cir-
cuit and in the Supreme Court, aa to the juris-
diction of the courts of the United States, de-
pendent on the character of the parties; but ia
no one of them is it settled where the aver-
ments on the subject shall appear.
In the case of MontaJet v. Murray, 4 Crao^
4S; 2 Cond. Rep. IS, while it is d'eoidcd thst
to give jurisdiction the character of the partiM
to the suit must appenr on the record, it is no-
where said on what part of the ri'cord tbcrt
shall be this dcsiTiptinn. If It sppiara on any
part of the record thnt the pnrlit-H arp >ui-h as
to give the court jurisdiction. tlii» ia a full '"om-
pliance with the requisitions of the *Con- I'M
stitution and tlic act of Conjin-fis. All the eii-
gencies of the law arc <-omplinI witli.
After a Irinl and verdict, the pnrfy is not al>
lowed to e\c(pt to the jurisdicliun ol the court,
even in a case in which the court had oot juris-
diction. It is too late. 4 Wash. Q C. R- '
483. A case may be submitted to the court,
on a statement of facts, and have ail the sub-
stance of a case presented on formal apecial
pleadings. The only
to exhibit the case.
not look at forms, If the substance ia prraerrel.
In this case, the court cannot but at* that tW
parties are witiiln their jurisdiction.
How is it as to the tenant in the case befort
the court I and what will be his situation if
strict rules are applied to himT As a general
principle, a plea to the jurisdiction afaould bt
put in before a plea to the merita, and the qott-
tion of jurisdiction is supposed to be waivecl bf
a neglect to plead it. 4 Mason'a C. C B-
434; 3 Johns. Rep. 105; 1 Paine, 5M; dted.
also, 11 Peters, 8I>, as to the mode and tine of
pleading to jurisdiction.
This court haa slwaya reluctantly eTerriied
its power to dismiss a case for want of jurisdic-
Lion. The cases are numerous to show tUs-
In Bvery such case which haa been dismiaael
18U
Ibere haa bMn a want of an arerment, and no
proof of the citizenship of the partj. But in
this ease there i* an averment, and the defend'
mnt doca not deny Itt tinith. He bold* back
•fter the Buit is brought; be subjects the plain
tiff to all the erpeoMS of proaecuting his action
hr BUbmita to have the cause brought up to thii
court, and to the action of this coort on thi
c*ee bj a mandoinua to the diatriot judge; to i
tiia); to a bill of exceptiona and verdict) to a
writ of error to tbii court) and now, without
denial of the fact averred, that he ia a citinen
ftnd resident of the western district of New
York, he aslca that the case ahall be dismiaaed.
Casps cited in the argument: 8 Wheat. 421;
1 Mason a C R. 300; 1 Paina, 410; a Craneh,
Ur. Chief Jostlco TasBy delivered Um opinion
of tba court)
A motion hat b««a made bj Um defendant In
error to diamUa thia eaaa upon the |ronnd tb ~ *
the avennenta naeeaiary to give Jurudietlon
the conrta of the United Stataa do not appear
Ib the record. TUe deeiaiona wldcb have nere-
tofore been made on thia auhjeet, render It
proper that the cireuraBtanoes nnder which thia
motion eomea before the court should be stated.
«S*] *A writ of right was brought in the
District Court for the Northern I»Btnct of New
York, to recover eertaln landa situated In the
State of New York. The demandant, tn her
declaration, aver* that alte la an alien, and
« aubject of the King of the United Kingdom
of Great Britain and Ireland; but doea not aver
that the tenant U a eiticeii of the State of New
York, or of any other SUte of the United
States. The suit wna bronght to January
Term, 1920, «t which term the tenant appeared,
and prayed leave to imparl* until tb« next
term ; "saving all objections a* well to the Jn-
risdicUoD of the eourt as to the writ and count."
The caae was continued from term to term,
mtil August Term 1S2S, when the tenant put
In the usual plea to the first count, and de-
murred to the second and third, setting down
•pecial cnuaes of demurrer. The demandant
Joioad In the miae on the plea, and joined in
the demurrer; and, in her jotuder in demurier,
•he averred that the defendant waa a eltiioi of
the 8t«U of New York. The want of tUa avar-
■Mnt of dtiiensbip in the counts was not one
of the canaee of demurrer aasinied by the ten-
wat. The demnrrcra were decided against the
damandant at August Term, 1S2T, and further
proceedings were had which it la unnecessary
to state here, and the case continued until
August Term, 1B31, when the defendant moved
tbe court to dismiss the suit (or want of juris-
diction, assigning as the foundation of this
motion the want of an averment of the pecun-
iary value of the lands demanded In the counts
llled by the demandant.
The court sustained the motion and ^a-
missed the suit. But at that time no objection
to the Jurisdiction was made on account of the
omission to aver tin dtlxenshlp of the tenant.
In 1632 tUa dismissal of the suit was brought
before the Supreme Court, and m rule laid on
the District Court to show eauaa why the case
•bontd not be re-Instated in that court; and at
January Term, 1833, • paremptoir matidamua
» L.O&
waa Issued hy tUs court, commanding thr
District Court to re-instate the suit, and "te
Eroceed to try snd adjudge according to the
tw and ri^t of this case, the said writ of right
and the mise therein joined." The mandamus
was obeyed and the cause re-instnted, and the
mise tried and found against the demandnnt,
and judgment entered against her at November
Term, 1837. The case is now before us u^
a writ of error on this judgmentj and a motion
is made to dismiss the case, upon the ground
that neither the District Court nor this court
could have juriaiiiclion of the 'suit, be. [*«4
cause the demandant is an alien, and there ie
no averment that the tenant was a citiaen of
New York.
The above statement of the proceedinca
nisktrB it evident that the dilmiBsal of the
suit upon this ground at thia time would be a
surprise upon the demandant, who has been
prosecuting the suit for many years; moat
proboUy under the impression that the aver-
ment of dtisenship contained in her Joinder in
demurrer was considered by this court and by
the District Court to be a jufll<^ient compliance
with the mleo of pleading established by the
decisions of this court, for the averment ia
question was receit'cd in the District Court
without objection; and, indeed, would seem
to have been regarded as sufficient by that
court; because when the suit waa dismissed
there, upon the ground that the counts did not
eootaia propn averments to give jurisdiction,
no notice waa taken of the want of this aver-
ment in the counts, nor any objection to Uie
place where It had been inserted in the plead-
msa, and when the ease was brought before
7 Peters, S34. The demandant might, there-
fore, reasonably have supposed that the oourt
deemed the averment sufficient, because cer-
tainly the mandamuB would not have been
issued, commanding the District Court to re-
instate the cose, and proceed to try it, unless
this court bad been of opinion that a aufficient
cause waa presented by the pleadings to give
jurisdiction to the Disulitt Court.
The principle on which this averment has
been required Is purely technical. But the rule
haj been astabliohed by the decisions of this
court, and we do not mean to disturb It, and
the proper ploee for the averment Is undoubt-
edly In the doelAration of the pUntiff tn the
The District Oourt was not bound to reedve
it In the joinder in demurrer, and clearly ought
not to have received it, if it bad been objected
to by the tenant. But he has waived the ob-
jection by failing to make it in an earlier stage
of the cause; and after the proceedings which
have taken place In the District Court and in
this court, and when the cause has been so long
continued and allowed to proceed In the sams
condition of the pleadings and averments, it
would be unjust to the demandant to dismiss
it upon this mere tocbnleal 'informality. [*•!
The pleadings, In fact, contain all the aver-
ments required by the dacisiona gf this courl
t09l
Simzia Coon or tbx Umns StAna.
uu
to gin JuriatKction to the courts of the United
SlateB, and as they appear to have bran kc-
quieaced in by the tenant, and regarded as
■uIKcient in the District Court, and were not
objected to in this court when the caae iraa
here on the application for a tnandamui, we do
iiot think the informality can be relied od now
to dfamias the suit.
The motion is therefore OTetTuled.
Ur. Juatlce Baldwin dJaaented.
JOHN CARROLL.
Writ of error — what must appear In record to
give jurisdietioD — deavh of one of three plain-
tiffa io error.
ludlcLar; A
-.-. In _
jiigbi Irom tlie hlgba
did decide I
_ _ eclde In tavor of
Ibe vaUdllT of B ■tntoK' or tbe BUtr, Ibe mnstltu-
tlonallty at wblcb la brougbt Into queslloa on th«
writ of error. Two tbiDKB must b« ipparent In tb>
record: Snit, tbsl »otdf one oF the queitloni
■tated In Ibe tweatr-flftb irctlon did irlae In tbe
I, In tbi a
ree parties, pIslDtlOs m
,„ __ __. __ ._s two other
plain tllTf in error.
IN error to the Court of Appeala of the Stats
of Kentucky.
Thia coee woa ar^ed by Mr. Jonea for the
flalDtifTs in error, and hy Mr. Woodward for
he defendant. The argument was upon pointa
upon which the court expressed no opinion, aa
on consideration of the case it was found not
to be within the juriediction of the Supreme
Court, to which it had been removed by a writ
of error to the Court of Appeals of Kentucky.
The argumentB of tbe counsel are not, there-
fore, Inwrted in the report.
Hr. Justice M'Kinley delivered tbe opinion
of the court]
Thia ia a writ of error to a judgment of the
Doort of Appeala of Kentucky, affirming a
judgment of tne Jeuarulna Ciroult Court.'
The heirs of John Moss recovered a judgment,
In ejectment, against the defendant in error, in
the aald Circuit Court, at the October Term,
IBIS, for a tract of land in Jessamine County;
mi, at the same term, commlasionera were ap-
1.— At tbe liBt term of this eourl, tbe death of
lohn M'Klnnej, one Of tbe prslntllTs, wss luB-
emtPd. and the FSuie contloued tor revivor, under
the ■nlalak'-n ovlnloo that be wsa tbe odIt plaln-
itrr rtrr ifbi-^fUno of tbe record. It sppeflra Thnt
r plaintlfFa ; and, as tbe
0 tbem, tbe i
vlvor U Di
pointed, in conformity with the Act of the 3W
of January, 1812, concerning occupying eliUa-
•nta of lands, to value *tbe land in [*tf
controversy, tbe improvements there<w, et&
At a aubaequent term of the court the cm.
mfssiouera made their report, and, nmong otb^
thing*, reported the improvements on the laad
to be of tne value of one thousand aix Itundred
and ninety-eigbt dollars. At the October Tera,
1819, of ibe said Circuit Court, on th^ motioa
of the defendant, judgment was renderi>d in his
favor, against the plaintiffs in ejectment, itr
aaid aum of one thousand six hundred eiid
ninety-eight dollara. And, on tbe 25th day of
October, 1819, the plaintiffs in error, aa sureties
of the plaintiffs in ejectment, executed b bond
to the defendant, with condition to pay aaid
sum of one thousand six hundred and ninaty-
ei^ht dollara in two e<,ijal annual inatallmcnti,
with interest, as authorized bf said act; whid
bond had, by law, the force of a judgmeat;
and execution was autboriEed to ba iaanid
thereon, aa in caae of replevin bonds.
On the 7th day of December, 1621, an exe-
cution Issued on the bond against the plaintiffs
in error, who, availing themselves of the benefit
of a atatute then in force, replevied the debt
for two years more. When execution issued
against them on the replevin baud, they applied
to tbe judge of said Circuit Court for m, writ of
error coram vobisj and in their petition ■■■
aigned, in auhstance, these errorai first, the Act
of the Slst of JanuBi?, 1S12, concerning oc-
cupying claimants of lands of a violation e(
tbe compact between Virginia and Kentucky,
and a violation of the Constitution of tlw
United States; and therefore tbe bond and
other proceedings under it are void; second, bnt
one bond was given for both installmenta,
where there should have been a bond gir^
for each installment; third, but one executica
iaaued for both installmenta, when there should
have been an execution issued for each instail-
ment; fourth, the law under which the replevii
bond was given is a violation of the constitu-
tion of Kentucky, and a violation of the Con-
stitution of the United States, and, therefore
the bond ia void; fifth, the whole proceeding!
are erroneous, wanting form and subslajice.
The judge of the Urcuit Court awarded th*
writ of error coram vohis on the 15th day of
March, 1824, returnable to the next term of said
Circuit Court. At which term, on the SSth
day of April, 1824, by judgment of tbe coort,
the writ of error coram vohis waa dismissed.
From this judgment the plaintifTs in error ap-
pealed to the Court of Appeals, and as^ignm,
there, the following errors; first, the court
erred in giving judgment upon the several mat-
ters and errors alleged in the petition for tba
writ of error coram vohis, and the assignment
*of errors therein contained; second, the [*•>
court ought to have quashed the said exeetititB.
bond, etc., aa prayed for in the petiti<ni asd
writ of error coram vobia Upon the he«riag
of ths cause, the Court of App^a affirmed UM
judgment of tbe Circuit Court.
The jurisdiction of this court over thia raoM
was not questioned at the bar, but the qni atisn
appears neceesarily to arise on the record, an<
must therefore be decided by the court, ns
2fith section of the Judidary Ant of 1789 mm-
P«tn* t*
U18
M'KunuT n AL. *. Uaxbmi.
I jiMgneti
I juriBdirtioii <« tltji cmiii frora
, ^nientt Mid derreei, In any suit in the
highett court of law or equity of a State in
trbich a deciHion of the suit could be had,
when is draim in queation the validity of a
trwty, or statute of, or an authority exercised
nnder the United States, and the decision ii
against their validity; or vhere is drawn in
question tlie validity of a statute of, or an
authority exercised under any State, on the
ground of their being repugnsnt to the Consti-
tution, treaties, or laws of the United States,
and the decision is in favor of their validity; or
where is drawn in question the eonetnietion of
say clause of the Conslitution, or of a treaty,
or statute of, or commission held under, the
United states, and the decision is against the
title, right, privilege or exemption set u)
ebiimed by either party.
In this rase, two statutes of Kentucky have
been drawn in question, on the ground of their
repugnance to the Constitution of the United
States. But, whether the Court of Appeals
decided in favor of their validity, wilt depend,
flrst, upon whether the questions arising under
those statutes were not, or miKht have been,
decided upon the authority of the State laws,
without involving their validity under the Con-
stitution of the United States; and, second,
wbather the record of this ease shows that the
court did decide in favor of their validity.
A questioQ arose at the bar whether the
judgment of the CHreuit Court in favor of the
defendant, and against the ptaintilTs in eject'
ment, was before the Court of Appeals, on the
trial there. The counsel for the plaintiffs in
error insisted that it was, and, therefore, a
proper subject of examrnation in this court.
llM plaintiffs in error were not parties to the
juidgntent of the Circuit Court. They became
parties in the record by being the sureties of
the plaintifls in ejectment in the improveiDent
bona; which was subsequent to, and, in fact,
the fruit of that judgment. The appeal which
they took was from the judgment of the Qr-
cuit Court upon the writ of error coram vobis;
«nd the errors which they sssigned In the Court
• •*] of Appeals limited the 'inquiry before
that court to the correctness of that judgment.
But, independent of these grounds, the statutes
of Kentucky regulating the writ of error coram
TObia limit its operation expressly to errors
arising subsequent to the Judgment of the In-
r«rior court. Horehead ft Brown's Digest, 1664,
1B6S.
The first error assigned, in the petition for
tbe writ of error coram vobts, draws in ques-
cfoii the Talidity of the Act of the Slst of Janu-
ary, 1812, concerning! occupving claimants of
snda, on the ground that it ie iu derogation of
Jie compact between Virginia and Kentucky,
uid repugnant to the Constitution of the Unit-
kI Statea. Neither the plaintiffs in ejectment
tor the defendant, appear to have raised this
|u«Btion, in any part of the proceedings be-
ween them. The plalntlfTs In ejectment did not
i^n the improvement bond, and were not, there-
ore, parties to the suit in the Court of Appeals,
nd, consequently, are niA parties here. They.
nd tbey alone, had a right to object to the
adsment of the Qrcult Court against them
nd In fkTor of the defendant and the proceod-
ig« nndar it> oa tbe ground that the Act of
the Slst of January, ItlZ, was nnccnstitutional,
Ry that act they were deprived of the rents and
profits of their land while in the occupation of
the defendant, and cQinpclled to pay him fot
all improvements which he had made thereon.
And this is the ground of the decision of this
court in tbe caae of Green t Biddle, 8 Wheat.
1, which was relied on by the counsel for the
plaintitTs in error. The plaintiffs in error were
the mere sureties of the plaintiffs in ejectment
for the money adjudged to the defendant for
his improvements. The bond whidi they
signed was a voluntary act, and a part of the
means provided by the said law to enable the
defendant to obtain satisfaction of his judg-
the constitutionality of the act concerning o
cupying claimants of land, and tlierefore they
had no right to complain of it.
The fourth error in the petition draws In
question the validity of the statute of it.en-
tucky, authorizing defendants to give replevin
bonds, payable in two years, upon the plain-
tiff's failing to cause to be indorsed on his exe-
cution that he would take the notes of certain
banks specified in the act in dischkrge thereof.
Had the plaintiffs in error paid the amount of
the execution which issued against them on the
improvement bond in money as they were
bound to do, this question would never have
arisen. Having availed themselves of the bune-
Gt of the credit extended to them by thnt act,
end delayed the 'deft-ndant in error in [*t1t
the payment of the debt they had thus volun-
tarily again assumed upon themselves, is It
proper that at the end of four yetirs they should
be permitted to come into court and set aside
the whole proceedings against them, on the ab-
stract principle that the statute under which
they had taken place violated the Constitution
of the United 5;tBtfs?
The Court of Appeals of Kentucky has de-
cided that a replevin bond cannot be set aside
at the instance of the debtor, on the ground
that the law under which it was given was un^
constitutional. Let it be conceded, says the
court, that the Constitution of the United
Statea, or of this estate, is violated by the law
in question ; whose rights are infringed by it!
Certainly not those of the debtor, for the law
is passed and opcratea exclusivelv for his bene-
Bt. Small t Carr v. Hoilgen, 1 Lit. R. IB. And
in a subsequent cote, the purchaser of a tract
of land, under an execution sale, on a creilit of
one year, attempted to set anidc the bond which
he hud given for ttic purchase money, on the
ground that the law, under wltifh the sale had
been made, and the bond had been e\i>i-uted.
violated the Constitution nf the United States.
On the authority of the above caae. tbe court
refused to set aside the bond and sale. Rudd
& Miller v. Schlatter k Gilman, 1 Lit. R. IS.
Upon this view of the case, it may be fairly
presumed that the Court of Appeals decideil
upon some, or all of the grounds here stated:
and that it did not decide in favor of the valid-
ity of the statutes referred to. Rm to eive this
court jurisdiction, it is not auffiHmt to show
that the court li^low micht hsve decided in
favor of the validity of these statutes, or either
of them; it must be apparent in the record that
the court did so decide. In tbe cases of Crow-
1««S
J
T«
Burma Oomrt <w tss Uhtw Statbi.
ell V. Rftttdell, Mid Shoemaker t. Randell. 10
Pet R. 391, the court went into > review of
kU tbe cmaea which it bad previouiW de<:ided,
uc^er the authoritj' of tbe 25th ecctiou of the
Judicidrj Act of 17BS.
In delivering the opinion of the court, Mr.
Tuitice Story SRfi: "In the interpretBtion of
thia section of the Act of 1789, it baa been uni-
form! 7 held that to give thia court appellate
juiiadiction, two things should have occurred
and be apparent in the record: firat, that aome
one of the queationa atated in tbe section did
■riae in tbe court below; and lecond, that a de-
cialon waa actuallj made thereon by the aame
court, in the aame mnnner required by the aec-
tion. If both of these do not appear in the rec-
ord, tbe appellate jurisdiction fails. It is not
aufBcient to show that such a question might
71") have occurred, 'or siich a decision might
have been made in the court below. It must bo
demonstrable that they did exlat, and were
pearing to be
ment was rendered on all the questions pre-
aented for its adjudication, on the authority of
the State laws, thia court has, therefore, no
juriadiction of thia caae.
The writ of e
r must be dismissed.
On consideration of the auggeation and mo-
tion made by Mr. Jonea, of counsel for Uie
plaintilTa in error, in this cause, on a prior day
of the prt'seiit terra of this court, to wit, on
Thursday, the Utli day of January, it ia the
opinion of this court that it is unnecessary to
make the heirs and ripresentittives of John
M'Kinney, whoee death has been suggested on
the record, panics to this writ of error, as tbe
cause of action aurvivea to the two other plain-
tiSa in error.
This cauae came on to be heard on the tran-
acript of the record from the Court of Appeals
for the State of Kentucky, and wss argued by
counsel; on consideration whereof, it is the
opinion of this court that this court has not
turisdiction in this cause; niicreupon it ia now
lere ordered and adjudged by this court that
this writ of error be, and the «ame is hereby
dismissed for the want of jurisdiction. All of
which ia hereby ordered to be certified to the
said (Jour I of Appeule, under the seal of this
eourU
If] *rHE UNITED STATES, Plaintiffs,
LAWRENCE COOMBS.
Indictment for stealing merchandise belonging
to a wrecked ship, the goods beinir above hi|^
water-mark — piinriplea of interpreting stat-
utes— juriadiption of admiralty — power to
regulate commerce.
IndlelDient in the Circuit Court or the Dulted
nates far tbe Boitthem lilstrlct ot N'aiv Tork, tor
iaIODlouil/ stealing a quantity ot niercbaadlw ba-
&w aea «■ (kt
coast at tbt mate of New York. Tlie lodkUiiat
was tounded on tbe Otb section ol tbe act tnlllici
"Ad Art mare cffeetuall; to provide tor (he pna-
Isbment or certain crimes afalnst the United Stum,
sail tor other puritoaea;" approved 3d Uarch. 182).
Tbe Eoods were taken above hleta-wiler Disrk, upon
tht beach, IB tbe Coontj of Queeoa, In the State
■ "■ Vrt^fc u>M that the "" "" "
let Ion or ..
-:t ot Concresa sdmlta or tws
interpretations, one of which brlnsa It within aa<
tbe other presses it beroad the conatitutlanal au-
thority or Consreis, It Is the duty ot tlie SupieoH
Court to adopt (be rormer construction : because ■
presumption never ouEhl to be Indiil'T^il tbst Tmi.
freis meant ta eisrelas ot osnrp an* aneosMlt*
lonal aatborlty, unless that cuuliiu.u.. ib .utiid
OD the court l)y lineuBEC altoietber unambltuoui.
In cases purely dependent upon tbs loisJity ot
tbs act done, the admiralty Jucltdlctlon Is limited
«i ue sea, aui
Sons. Mixed
Bluns
B the a
1 services done
partly on tide-waters and partly o_
preaervntlon of the property. In which the admlral-
S Jurisdiction has been constantly exercised Is
e Client ot decreelDE salvaxe.
Under tbe clause of tbe Constitution Elvlnc tht
power 10 Congress "to regulate commerce wlt»
torelm nations, and among tbe sevetal States.'
the SI
a ot tbe Act
oI 182JS. The power to regulate t
cludea ths power to regulate nsvlntlon. as csa-
nected with the commerce with foreign aatlaaa
and among tbe States. It does not stop at tbe men
twundary line of a State, nor Is It confined to ads
done on the waters, or In the necessary course sf
In the n
the nsvigstion tnereoi. It extends to sucli act
done on laud wblcb tntertere with, abstract. 0
prevent the due exercise of tbe power to tesrnlat
commerce and navigation with foreign osthns sa
K the S
Any oSeni
nod nsTl^Btlon. though done on land, i
ished by Congress, under Its gencrsl 1
make all laws uecessary and proper lu cxecsh
tbeir delegated constltutlonnl powers.
Upon the geoeral principles of InlerprettnK Stat-
Dfes where the words are general, the m.irr ■» mmt
at liberty to Insert llmltatVoni
sense, or tbe ohJecU, or the i
THIS ease came before the court on n ecrtifl-
cate of K division of opinion between the
judges of the Circuit Court for the Southen
District of New York.
Lawrence Coomtn was Indicted under ths
9th section of the Act ■entitled "An [*IS
Act more effectually to provide for tbe punish-
ment of certain crimes against the United
States, and for other purposes, approved ths
3d of March, 1825," for having, on the 81st tt
November, ISSa, feloniously stolen at Rocka-
way Beach, in the southern district of New
York, one trunk of the value of five dollarai
one package of yam of the value of five dollan,
one package of ailk of the value of five dd-
tars, one roll of ribbons of the value ot !«•
dollars, one package of mualin of tha value if
Hve dollars, and six pairs of hose of the vslas
of live dollars; which said goods, warf a and mer-
chandiaa tielonged to the ship Brietol, the aast
ship then being in distress and cast away oa a
shoal of the sea on tbe coast of tbe Stat« tt
New York, within the aouthem diatriot of Ne«
Note.— As to criminal Jurisdiction of «ie TbIH
States courts depending on locality, the ~hl|
seas." ebb and How ot tide, etc., see note* ts
L. ed. U. B. 37 ; 4 L. ed. U. 8. 404 ; « £^ ed. 1
8. 368.
Admiralty lurlsdlettoa ; loco* ot performances al
I 66 L.B
Jurisdiction <
L. 21s.
, sas aou to 4» UM-L.
PetaM I*-
Tkb Unmo Btaisb t. Coohm.
U
Tork. Oa thte indictment the prisoner was
•mign«d nnd plead not guilty, and put Um-
■elf upoQ liii country for trial.
It waa admitted that tlie gooda mentioned in
the iadictment, and which belonged to the tafd
•hip Briatol, were taken alrave high water-
■ark, upon the lieach, in the County of Queena ;
whereupon the question arose whether the of-
fense committed was within the jurisdiction of
the court, and on this point the judges were op-
posed in opinion.
Which said point upon which the disagree-
ment happened, was stated under the direction
o( the judges of the court, at the request of
the counsel for the United States, and of Law-
nnce Coomhs, parties in the cause; and ordered
to lie certified unto the Supreme Court at the
M3ct susion, pursuant to the act in such case
Bade and provided.
The case wsa arnied W Mr. Botler, Attor-
aey-Geueral of the Umtad States. No counsel
appeared for the defendant,
Afr. BnUeT stated that no jurisdiction eoiild
axist over the ease, unless it was given by the
acts of Congress. The first Crimes Act of the
United Btates of 1760, and the Act of ISSfi,
•howed the object of Congress to have been to
prevent the perpetration of such crinies as
Ifaoee charged against the defendant. The
penalties imposed bv the Brst act were found
to be too heavy. The Act of 1825 was psssed,
■nd many offenses were included Id it which
were in the first law. These offenses
those which might be committed "on the high
■efts, and out of the jurisdiction of a particular
Stjite." But the Sth section omits the timita-
tion of "the high aeaa," etc.
The ship must be cast away, or be in distress,
T4*] or be wrecked In the admiralty jurisdic-
tion; and it an^ person steals goods belonging
to her, the punishment attache*. In this case,
it WW admitted that the ship was in the condi-
tion described in the act, tiut the goods were
above high water-mark when stolen.
The rest of the section shows that the object
of Congress was to Include cases above high
water-mark. "Showing false lights'* would,
In most eases, ha on the shore and in places
above the tide.
Mo serious doubt of the power of Congress
to punish such offenses can exist. The power
(Iven by the Constitution to regulate commerce
■eeessarlly includes the power to protect the
r)ds which are the subject of commerce, and it
of no consequence fhether the commerce is
forei^ or domestic.
The view which Congress entertained of this
power is shown by Its legislation in the first
act, In which, aiding o
All that is necessary is that the matter which
the aubjeet of the prosecution shall be con-
■•etad with, or have grown out of commerce,
Iffr. Tnatica Story delivered the opinion of
tte court:
This is a eaM certified upon a divisioa of
Sinton of the judses of the Circuit Court for
0 Southern Diatnct of New York. The case,
aa atated in the record, is as follows:
LAwrenee Ooombs whs indicted under the Bth
■action of the Act entitled "An Act mora vT-
fectnally to provide for the punishment of ect'
tain crimiis against the United States, and for
other purposes," opproved the ad of Hareh,
18*2G) for having, on the Zlst of November,
183B, feloniously stolen, at Kocksway Buaeh,
in the southern district of New York, one
trunk of the value of five dollars, one package
of yam of the value of five dollars, one pack-
sge of silk of the value of Sve dollars, one roll
of ribbons of the value of five dollars, one
package of muslin of the value of five dcJIars,
and six pairs of hose of the value of five dol-
lars, which said goods, wares and merchandise
belonged to the ship Bristol, the said ship then
being in distress, end cast away on a shoal ot
the sea, on the coast of the State of New York,
within the southern district New York. On
this indictment the prisoner was arraigned, and
pleaded not guilty, and put himself upon hi*
country for trial.
It was admitted that the goods mentioned In
the indictment, and which belonged to tlie said
ship Bristol, were taken above high water-mark,
*upon the beach, in the County of ('TS
Queens; whereupon, the question arose whether
the offense committed wa« within the jurisdic-
tion of the court, and on this point the judges
were opposed in opinion.
Which said point upon which tbe disagree-
ment has happened, is stated above, under t><e
direction of the judges of said court, at the re-
rest of the counsel for the United States, and
wrenee Coombs, parties in the cause, and
ordered to be certiHed unto the Supreme Court
at the next session, pursuant to the act in such
case made and provided.
The ninth section of the Aet of 1828, eh.
276, on which the indictment in the present
case is founded, is in the following worda:
"That if any person shall plunder, steal, or de-
stroy any money, goods, merchandise, or other
effects from, or belonging to, any ship or vessel,
or boat, or raft which shall be in distress, or
which shall be wrecked, loet, or stranded, or
cast away upon the sea, or upon anv reef,
shoal, bank, or rocks of the sea, or in any
pbice within the admiralty or maritime Jujii
diction of the United States; or if any person
persons shall willfully obstruct the escape of
any person endeavoring to save his or her life
from such ship or vessel, boat or raft, or tbe
wreck thereof; or if any person shall hold out
or show any false light or lights, or extinguish
any true light, with intention to bring any ship
sr rc9£?I, boat or raft, being or sailing upon
tbe sea, into danger or distress, or shipwreck;
every person so offending, his or their counsel-
ira, aiders or abettors, shall be deemed guilty
if felony; and shall, on conviction thereof, M
>unished by a fine, not •xceeding five thousand
ollars, and imprisonment and confinement at
hard labor, not exceeding ten years, aocording
to the aggravation of the offense," S Story's
Laws of the U. S, 2001- The indictment, as has
been already stated, clmrges the offense to have
been committed on Rocknway Beach, and, aa ia
admitted, above high water-mark.
Before ne proceed to the direct considera-
tion of the true Import and interpretation of
"■'- section, it seems highly Important, If not
ipensabtc, to say a few words as to the
constitutional authority of Congress to pass Um
!. For if, upon a just interpretation of the
1«U
SupBBiUE Cdubt or TUB UnnBD States.
Urau UMrsaf, OmigreH hftve exceeded their
MHutitutionftl BDthoritf, it wilt become our
duty to say so, and to certify our opinioD on
the pointi submitted to ub in fmvor of Che de-
fendant. On Llie other hand, it tbe iection od-
wits of two inlerprelatioTia, each of which it
within the coiistiLutianki authority of Congrean,
7(*] that ought to be adopted 'which best
conlormB to the termi and tlie objecti mani-
feated in tlie enactment, and the miKbiefa
which it wBi intended to remedy. And a|{eiD,
if the section adniiti of two inter; retationi, one
of which brings it within, and the other preasel
it beyond the conatitutional authority of Con-
greaa, it will become our duty to adopt the fur.
mer eonatruction ; because aprcaumption ncvei
ought to be indulged that Congreas meant to
exeTciae or uaurp any unconstitutional author-
ity, unless that concluaion is forced upon the
coivt by language alto<;fther unambiguous.
And, accordingly, the point haa been presented
to UB under thia aspect in the argument of the
Attomty- General on behalf of the government.
There are two clautes of tbe Conatttution
which may properly come under review, in ex
amining the conatitutinnnl authority of Con-
gress over the Buliject mattpr of the section.
One is, the delegation of the judicial power,
which ii declared to extend "to all caaes of
admiralty and maritime jurisdiction," The
other is, the delegation of the power "to regu.
late commerce with foreign nations and among
the Bcveral States;" and, as connected with
these, tbe power "to make all laws wbicb aball
be necessary and proper for carrying into exe-
cution the foregoing power," etc.
In regard to the first clauae, the question
which ariaea ia, what is the true nature and ex-
tant of tbe admiralty jurisdiction! Docs it, in
cases where It is dependent upon Iocs lity,
e lo-
cality of the act done, it is limited to the SPa,
and to tide-waten, as far at the tide Sowg, and
that it does not reach beyond high water -mark.
It li the doctrine which has been repeatedly
asserted by thla court, and we se<t no roason to
depart from it. Mixed cases may arise, and
indeed often do arise, where the acta and serv-
icei done are of a mixed nature; as where sal-
vage aer vices are performed partly on tide-
watera. and party on the shore, for the preser-
vation of the proprrty aaved; In which the
admiralty Jurisdiction hat been constantly ex-
erclaed to the extent of decreeing salvage.
That this ia a rightrul exercise of jurisdiction
by our courts of admiralty, was assumed at
the beeit of much of tbe reasoning of thia court
in the case of The American Inaurance Com-
pany V. Canter, 1 Puters'a Rep, fill. It haa
alto been asserted and enforced by Lord Sto-
well.
and t
iilly i
e The Auguttn v. The Eugenie, 1 Hagg.
Adm. Rep. IBj The Jonge Nicho'aa, 1 Hapg.
Adm. Rep. 201 1 The Ranger, 2 Hagg, Adin.
Rep, 42; and Tbe Happy Return 2 Ha^g
77'] "Adm. Rep. 106. See, also. The Henry,
of Philadelphia, 1 Hagg. Adm. Rep. 2S4 :
The Vesta, 2 Hagg. Adm. Rep, 189; The !^a-
lecia, 2 Hagg, Adm, Rep. 262. And this has
been done not only in conformity to the doc-
trines of the maritime law, but also to what
ha* been held Id the courts of eommon law. For
loot
it hat been laid down that If the libel fa foml-
ed upon one single continued act, which wat
principally upon the sea, though a part wu
upon land; as if tbe mast of a ship be takn
upon the sea, though it be afterwards brought
ashore, no prohibition lies. Com. Dig. Adm.
F. S.i 1 Rolle Adm. 633, a 13; Com. Dig.
Adm. E. 12. It is true that it has been laU
that the admiralty has not iurisdiction of tht
wreck of the sea. 3 Black. Com. ICM, lOT.
But we are to understand by thia not what,
in tbe aenae of the maritime and commereia]
law, Is deemed wreck or shipwrecked prop-
ertv, but "wreck of the sea" in the ptmly
teconical s^nse of the common law, and tim-
atituting a royal franchise, and a part of tht
revenue of the crown in England, and oftttf
granted as such a royal franchise to lords of
manors. How narrow and circumscribed Ibis
aort of wreck la, according to the modem doe-
trIoM of the courta of common law, ma.; b*
g^rceived by the statement of it In Mr. Jiutin
lackatone'a Commentaries. 1 B!ack. Ooia.
290 to 317. Who also shows that it la tUa,
and this only, which is excluded from the ad-
miralty jurisdiction. Lord Stowell manifestly
acted i.pon tbe same doctrine in the case al
The A-:guf'a v. The Eugenie, 1 Hagg. A.ia,
Rep. 17; 3 Black. Com. 106, 107.
A passage has been sometimes relied on in
one of the rarlieat judgments of Lord Stowdl
—the case of The Two Frienda, I Rob. Re^
271, in which it ia intimated that if the goods,
which are subject to aalvage. have been landsi
before the process of the admimlty court hns
been served upon them, the jurisdiction tftw
them for the purposes of salvage may be gone.
But his lordship, so far from deciding the poiBt
then, greatly doubted it; and hat, as it sboald
seem, since silently overruled the object ioa.
Indeed, the supposed difficulty in that case was
not that the instance court had not juriiidie'
tion; but that in cases of salvage on the in-
stance side of the court, no process of the court
could be served on land, but only on the water.
Now, this is wholly iitappliesble to the courts
of the United states, where admiralty proea^
)Kith in the instance and prize aides of the court,
be served on land as well as on wnter.
These expisnationa have been made for the
Bake of cleHring the case from some sppar^t
obscurities and ditTiculties bs to the nature and
extent of the admiralty 'jurisdiction, in [*7S
I where it is liuiited by the locality of th«
acts done. In our judgment, the authority of
Congress under this clause of the Constitutina
does not extend to punish otfenap* eommitted
e and beyond high water-mark.
it we are of opinion that, under tbe rl>M«
of the Constitution giving power to Congresl
"to regulate commerce with foreign nations
and among the several Btatet," Congress pes-
aessed the power to punish offenses of the tori
which are enumerated in the ninth section of
the Act of IR2S, now under consideration- Tht
power to regulate commerce includes the power
regulate navifTa.tioti, as connected witn the
merce with foreign nations, and among the
States. It waa ao lield and decided by this
;ourt, after the most deliberate conside ratios,
n the case of Gibbons v. Ogden, S Wheat. M
:o inn. It does not stop at the mer« boiindar?
line of a State; »"- '• ■♦ *"-'
inn
Thb Uni
a SlATBS T. CODIfM
on the wtter, or in the nereismry courae of the
iiHvi|;ati»n thereof, U e:itend« to auch acts
done on land which intcrfpre with, obttruct, oi
trevent the due axerciae of the power to regu-
ite commerce and navigation with foreign oa
lions, and among the Statpa, Any offenae
wliich thua interfere* with, oliatructs, or pre-
Tents auch commerce and navigation, though
done on land, may be punished by Congreas,
under ita general authority to make all laws
neceKsary and proper to execute their delegated
conatitutional puwera. No one can doubt thai
the various oftenses cnutnerBted in tha ninth
■ectioii of the »ct are all of a nature which tend
essentially to obstruct, prevent, or destroy the
due operations of comioeree and navigation
with foreign nations, and among the several
btatea. Congress hare, in a great variety of
caai'S. acted upon this interpretation of the Con
■titution, from the earliest period after the Con
•titution, as will be abundantly teen by the
puniiihniFnt of certain offenaes on land, eon-
Deeted with piraoii's and feloniea on the high
Maa. in the Act of 1T!)0, ch. 30, aec. 10 and sec.
11, and in the arts for regulation of catnmerce
and lavigation, and for the colleetion ot the
revenue, passed from time to time; in w
luany of the penalties, forfeitures and olfenses
provided for, are such as are, or may be done
on land: and yet which arise from the power to
regulate commerce and navigation, and to levy
«nd collect duties. The Ship Registry Act of
17S2, ch. 4P. the Act of 1798, ch. 02, for the
enrollment and licensing of vessels In the coast-
ing trade and flsheries; the Act of 1700, eh.
IDZ, for the regulation and government of sea-
men in the merchants' service; and the Revenue
Collection Act, from the Act of 1789, ch. 6, to
79*1 'that of 1709, ch. 128, afford many point-
ed i 111! at rations. We do not heaitate, therefore,
to Bay that in our judgment the present section
ia perfectly within the conHtltutional authority
of Congrees to enact, although the offense pro-
vided for may have been committed on land,
mnd above high water-mark.
Let us now proceed to the interpretation of
the section under consideration. Does it mean,
in the clause in which this indictment is founded,
to prohibit and punish the plundering,
■tealing, or destroying of any property belong-
ing to any ver»e\ in distress, or wrecked, lost,
■tranded, or east away, only when the same
property fa then on board of the vessel, or is
then upon the sea, or upon any reef, shoal,
tMnlc. or rock of the sea, or in any other place
wthin the admiralty and maritime jurisdiction
of the United States' Or does it mean equally
Co prohibit and punish such plunder, stealing,
or destroying of such propprty, whether the aot
Im done on share, or in any of the enumerated
plaees below high water-mark < In our opinion,
the latter ia the true interpretation of this
clause of the aection.
In the first place, this is the natural meaning
of the words of the clause, taken in their actual
import and connection. There Is no abeolute
lo^Iitr assigned to the offense. It Is not said,
MM It fs In every one of the preceding seetions,
th*t the offense ahall be committed in a partic-
ular plane-^in a fort, dock yard, navy yard,
etc, et«., or upon the falgL seas, or in an arm of
tha aea, or in a river, etc., within the admiralty
•nd maridme juTiadicticni «f the United fKtates,
and out of the jnrisdlctioo of any partieula)
.^tnte. The language is, "If any person o*
p<!rsuns Shalt plunder, steal, or destroy anjr
mnney, goods, merchandise, or other effects,
from or belonging to any ship, or vessel, etc."
The plundering, stea'iiig, or destroying need
not, then, be from any ship or vessel. It is
BiifHcient if it be of property "belonging to any
ship or vessel." It ia nowhere atated that thir
property, belonging to any ship or vessel, shall
be in any of the enumerated places when the
offense is committed; hut only that it shall be
property belonging to the ship or vessel, which
ia in lUstress, or wrecked, lost, stranded, oi
cast away. Locality, then, is attached to the
ship or vessel, and not to the property plun-
dered, stolen, or destroyed. And this qualitlca-
tion is important, because it is manifest Con-
gress possess no authority to punish offenses of
this sort generally, when committed on land.
but only to punish them when 'connected [*80
with foreign trade and navigation, or with
trade and navigation among the several States.
In the next place, the mischiefs Intended to
be suppressed by the section are precisely the
same, whether the offense be committed on the
shore, or below high water-mark. Tliere is,
and there can be, no sound reason why Con-
gress should punish the offense when committed
below high water-mark, which would not ap-
ply equally to the offense when com nutted
above liign water-mark. In such case, the
wrong and injury to the owners, and to eom-
meree and navigation, is the same; and the
public policy of affording complete protection
to property, commerce, and navigation, against
lawless and unprincipled freebooters, is also in
each case the same. There is, then, no reason
founded in the language or policy ol the clause,
to insert ■ reslriction and locality which have
not been expressed by the legislature. On the
contrary, upon general principle* of inlerpreta-
" I, where the words are general, the court
not at liberty to insert limitations not called
for by the sense, or the objects, or the miachli^fs
of the enactment.
In the next plaice, the auceeeding clauses of
e same aection greatly aid and fortify this
construction, for in neither of them is there any
locality given to the offenses therein stated;
and, indeed, any locality would seem inconsist-
ent with the proffssed objects of these
clauses. Thua, in the next clause, it ia nra-
ided that "if anv person or persons shall
'illfully obetruel tb« eecape of any person en-
deavoring to save his or her life from auch ship
or vessel, etc.," he ahall be punished in the
manner provided for in the section. Now, it
1* plain that this obstruction may be as well, by
~~ ai:t done on shore as by an act done below
'h water-mark. It may be by cutting a rope,
or hawser, or other thing used as a meaua of
escape, and fastened to the shorc,or by remov-
ing a plank affixed at one end to the shore; or
by sinking or wounding a person on his arrival
otherwise, by attempting, on shore, to pre-
it him from savin'! his life. But the remain-
ing clause le still more direct. It provide* for
asB of holding out or showing a false light,
:tingulsbing a true light, with the inten-
tion to brinf any ship or vessal. ate.. aaillDf
SvTBEiu CovBT OP Tju Ukitib Scxna,
ttpon tb4 lea, into danger, or diatreM, or ahip-
wrMik. Now, it is most lOKtiifest that these
acta are Buch u ordinarily are done, and
templated to b« done on land. We do not >aj
eontemplsted, excluaively. to be done on land,
81*] for thej may b« done on 'the sea. But
to auppOBe that Congress could intend to pun-
ish these acts only when done on the sea, and
not to punish them when committed on shore,
would be to suppose that thej were solicitous
punish acta of possible and rare occurren
only; and to leave unpunished those which
would ba of the most frequent and constant
occuitwnce for such inhuman purposes, and
moat uJschievouE in their conaequeneea.
If, then, tlie other clausea of the same section
daflning offenses of a kindred nature have nc
reference whatever to any locality, but indilTer'
entif apply to the same offense, whether com'
mltted on land or on the sea; and if (aa ia the
fact) all thesa clauaei are connected togethi
and must be read together, in order to arrive
the denunciation of the punishment which is
equally applied to all; there docs seem to us to
be very atrong reason to believe (liat Congress,
throughout the whole enactment, had the same
intent; an intent to punish all the enumerated
offenaea, whether committed on land or on
tide waters, because they were equally within
the same mischief, and the prohibitions equally
necessaiT to the protection of the commerce
and navigation of the United States.
It has been suggested that there IB not the
•ame neceaaary for the interposition of Congress
in the case of the ofTense contained in the pres-
ent indictment tihen committed on land ai
when committed on the sea, or in other places
within the admiralty and maritime jurisdiction
of the United States; because, when committed
on land, the ofTense is or may be cognisable by
the State Judicatories, under the State lawa.
But this reasoning is equally applicable to the
other offenses enumerated in tlie other clauses
of the same section, and yet it can bardly be
doubted that they were designed *o be pun-
ished when committed on land. And it may
be further suggested that it could scarcely be
deemed prudent or satisfactory wholly to rely
upon State tegislatures or State laws for the
protection of nghts and interests specially con-
nded by the Constitution to the authority of
Independently, however, of these considera-
tions, there are others which ought to have
great weight, and, in our opinion, decisive in-
fluence in a question like the present. In the
first place, the Act of 1H25, ch. 276, manifestly
contemplates that in some of the offenses enu-
merated in it the State courts would or might
have a concurrent jurisdiction, for the 23d sec-
tion of the act expresslv provides "that noth-
ing In this act contained shall be construed to
S3*1 deprive the courts *of the individual
States of jurisdiction, under the laws of the
several States, over offenses made punishable
by this act." Now, there are no other sections
In the act to which this last section can more
pertinently apply than to offenses conunitted
on land, within the ninth section. It does, in.
deed, apply with equal force to the 23d section
of the act ( whieh la also derived from the power
to regulate eommeree], whieh provides for the
pnaiumeBt of conspiracies, cmnUnatioiis. and
confederadea, "on the U^ aeaa, or wiUia
the United Statea," to cast away, bum, m
otherwise destroy any ship or vessel, for the
fraudulent purposes stated in the sectioa; anl
also affixes a like punishment to thebuildingor
fitting out, aiding in the building or fitting oat,
"within the United Statea," of any ship cr
vessel, with intent that the same shall be cast
away, burnt, or destroyed for the like purpoaa.
In the next place, it is a most important ««-
sideratiOQ that in cases of shipwreck there ionst
alwayi be great ^ractlc&l difficulties in aaeer-
taining the precise place, whether below <w
above high water-mark, where the property is
first plundered, stolen or destroyed; as well aa
by direct evidence to identify the partieulai
persons by whom the offense was committal.
These dreadful calamities usually occur npn
coasts, and in places where the officers aid
crew are total strangers to all the inhabitants.
The personal sufferings of the officers and atw
often disable them from making any efforta, «r
giving any can or aid in the preservation rf
the property. The hurry and confusion ind-
dent to such events make them intent upoa
consulting their own safety, and often abeorfc
all their thoughts. The daricness of the nigiit,
as well aa the perita of the weather, often com-
pel them to forego all resistance to the depre-
dators, and the Utter often assemble in num-
bers so large as to make opposition hopelca^
and identification of individuals and of pack-
ages impracticable. While some are on tlM
" »ves bringing the plunder to the shore, oth«s
e or may be on the ahore stationed to guac4
id secure the booty. Under such eireuH-
stances, if the jurisdiction of the courts of the
United States were limited to acts of depre^
destruction committed below high
water -mark, the enactment would beeone
practically almost a dead letter; for in moat
cEues it would be impossible to establish, by di-
rect proof, that the property was taken below
high water-mark. A prosecution in the St*ta
court would, in many cases, be equally liaUe
to a failure, from the utter impossibility of es-
tablishing whether the act was not committed
within the admiralty and maritime jurisdictioB
of the United 'SUtes. The wisdom of [*•>
the enactment, therefore, which, upon a proaa
cutionin the courts of the United Statea, ^onld
cut oS any defense founded upon the mere ah-
sence of such proof where the offense was
committed, would seem to be aa clear si* ita
policy is obvious. It could scarcely escape Ua
attention of the Legislature as indispensable
for the due administration of public justice.
And BO far from wondering that the section la
question does not contain any restriction mm to
locality of the offense, the surprise would hav«
been great if it had been found there. We
think ourselves justified in saying that npoe
the true Interpretation of the section it rao-
tains no such restrtction, and that there la ••
ground, In conBtitutional authority, in public
policy, or in the nature or object of the aectia^
whicb call upon us to insert any.
Upon the whole, our opinion ia that H ba
certified to the Circuit Court for the SonthMB
District of New York that the offense eocBmit-
ted was within the Jurisdiction of that coot
iiMa cana on to be heard on the tna>
1^38 irNnL *.
aoript of the neord tram tba Orcnit OmH of i
t3M United StAtM for the Southern District of
New YotIc, *nd on the qneition »ad point on
which Uw jadgee of the Mid oourt Mere opposed
in opinion, and wMcb were certified to this
emrt for tt* opinim, mgreeabi; to the act of
Congrew in auoh case made and provided, and
wae argued by eounaeli on conaideration whera-
of, it ia the opinion of thii court, upon the
p<iiBt which baa bean certified to this court .by
the laid Circuit Court, that ttte said oflenee lo
eommitted waa within the jurisdiction of the
aaid Circuit Court; and it ia ordered and ad-
judged that this opinion be certified to tho said
Grouit Court accordingly.
•<■] 'JOHN VNim^ Plaintiff ia Error.
LOWELL HOLBROOK.
Action on promissory notes — admission of In-
debtedness by defendant as evidence — in-
■truction to jury— State laws as rules in
federal courts— damages for suing out writ
admittpd ttut the detinAaat ackDowlcdsed that bt
■ras tDdthled la the plalntlfC In the &mouDt of the
notes, and olTered ta confna Judemeiit, In the
M>nrM ot a nesotlatlon with the nlalDtirs cogn-
■el, althousb the Dciollatlon tell tbrguab, and ■■-
Ibough DO praot wNi El*ea at the haodwrltlTig
'%'!
a qaestlcB for Ut eonrt, and n
TAni
tradlctor? t
>^?ni
- l-eetilstare at OeorclB ol
Deeember, ISIU. the aniKDmeDt or Indarsamrai ai
a nn>iiiluor> noti la made nneient erldanea tberc-
,,. wlthou- "-- ■ ' ■-- "-- ■- — -■—"
declarea tbit the laws a
oept When Iba CanatltutioD, ireauea, or auHKca
of the tiDltcd States cegulce otherwlae — are to b«
mica of dFrliiDD In the eourta of the Halted
"""""" -.--.- the/ applJ.
prOTlalona those statTites at the aereral
States which preierihe niles of erldenca In dill
ises. In trials at comsutD law.
The object of the law of Concress waa to make
le niles of decision of the conrta of the Unlftd
States the same with those of the Statn, taiilD(
preserre the right* of the United States, \>j
epClona contained In the lection of the Ju-
dldarr Act. Justice to the clllicns of the Ttnlted
Slates required this to be done: and lbs natural
Import of the words uaed Id tba act of Conatiaa
Includes the lawi Id relation lo evidence, a* well as
■ ■ >n to property.
nI to allow tan par eentnm per
damages for aalng ont the writ
In this ™Wj_on^the amonnt of the Judg-
The eoi
direction
fact
t la not bonnd to at** ari hjpothetleal
" the jury, and toHean them to And a
o erldence of anch fact la offered, nor
_«J erldence from which It ran be _.
The admlsaloaa of a defendant tbat be Is Indebt-
ed to the plalntlt on promtsaorr notes, when
prOTed by CO-nn-t-Tit (MiffmnnT. m anfflrlenf eTl-
IlPiice of the ..
proof of the handwriting ol the payer.
lefFOtiabla paper,
proof of tbe handwriting ol the payer.
tb* CTldeoce waa legally competent for tbat purpoae
Whether
Nora. — ETtdenee. Laws of the Btates.
The eourts of the Bolted Btatea are bottsd to take
Jodlclal notice of tba laws of the aereral SUtes In
Ibe same manner as the laws of the United Btates.
Ttie jnrlspmdence of the BfTeral States ts In no
Joat aesae a (oreln Jnrlspmdence, to be praren,
like tbe laws of a forelpn country. Owlngs r. Hall.
• Pet. 60T: M'NIel t. Hoi brook, anpra I Gordon r.
nobart, I Rnmo, 401 : Woodworth *. SnalTonlH. S
Mcliean. 1«8 : Jasper t. Porter, 9 HcLean. DTS :
JODSS T. Haya. t McLean, SZl ; uewster t. Spald-
tnjt. a IfcLean, 24 -. Merrill 1
SSi.
tiM pleadings. i
Dawaon. Hempst.
'~rhm eoarta el the Untied States are bonnd to take
IodlcUl notice of the statute of limitations of the
r>at. witbont tta being eapeclally referred to In
- irhsn tbe facta are atated and relied
_ Barpendlag t. Beformed Dntcb
Cbarcb, J8 Pet 45B. __
mtenerer a law of a State l« a public
tba Btata conrta moat notice Judicially. ..
leaaratd in like manner by a court of tbe United
Btatea when It Is rennlred to administer the lawi
the State. Co»lB«ton Draw Bridge Co. t. Bt
bcrd. M How. 22T.
Where tbe fcelaratlon against a compam, Ini-
r rated by a Uw at ladUna. the Coaatitatlon of
I*. ««.
The conn r
n the C
Court, under the I7th r
le waa not considered aa nnr
iiror waa aued out merely tor
the .lurt. The ci
where the writ of
delay.
ERHOR to the an-iiit Court of tba United
States for the District of Georgia.
In the arcuit Court of the United SUtes for
tbe District of Gcortra, Lowell Holbroolc insti-
tuted an action on four proroiaeory notes, one
"■of which was drawn by the plaintiff in ['88
■TTor In favor of Lowell Holbrook, and tbe
three other notes were drawn in favor of other
Srsons, who had Indorsed the satne orer to
r. Holbrook. Ad nllidavit of the agent of
the plaintiff, stating that the defendant, John
M'Niel, was indebted to Lowell Holbrook in
amount of the said notes, was filed with the dec-
laration. Issue heine Joined In the suit, the
plaintiff, to support the action, without having
proved the handwriting of the drawer of the
notes, or of those who bad indorsed three of
the notes to him, offered the teatimony of W.
W. Gordon, Esq., the counsel of the plaintiff,
to prove "that John M'Niel had repeatedly,
and as late as November lat, 1S35, admitted
hia indebtedness upon those promissory notes;
and, at the same time, offered to confess a
judgment for tbe amount of principal and in-
terest, upon certain terms, by which he waa to
which State provided that every law abonld be a
Khllc law, unless otherwise provided, merely ai-
red that tbe company were ell lieu a of Indiana.
wlUioat BverrlOK Us Incorporallon. It waa held
that this waa aufflclent lo Eire Jarlsdtctlon to the
Clrenlt Court. It was botind to take Judii-lnl notice
of the charter. Ibid. Bee Beatty *. Enowler, 4
Pet. 152.
Conrta of the United States will ladlclally notice
pow«ra of a public nature ponferrpd upon a mnntc-
IC-_, E._^ _ ._^ ^_ gutnte o, J g„,,.
.. terms declared to be
pODiic. ranniierny v. IlanDlbal, 1 Dill. 118.
As the cDorts of Indiana are authorised hy the
constltntlon of that State to take Judicial nottc*
of all Ita laws, the Circuit Court of the United
Statra. alttlnt- In Indiana, can lake Judicial notice
at a law of (he State Laolslature, snpplenii-ntary to
Ibe charter of a railroad company. Junction R. B.
Co. V. Bank of Ashland, 12 Wall. SSd.
Where countries have b«n aoiulred hy the Unit-
ed States, Its conrta take Judicial notice of the law<
which prevailed there up to the lime of anch ac-
quisition. Snob laws are not forslga, hat theee
of an antecedent goremmanL OnKed Statae v,
- - 8 Otto, 4M.
at**
p™j^.
Sdfbeus Goum or rai Uitim Statu.
br kllow«J time for tb* parment of part. The
negotiation continued until November 3d, 1S3S,
•md then was onty not completed from ths in-
kbilitj of John U'Niel to pay the cash, which
he had in the first instance offered." The de-
feodant objected to Iha admiraion of thii evi-
dence, and ineisted that the acknowledgment
was only kq offer by the defendant to bu; hie
paacfl, by ■ eompromjee made in the course of
ft negotiation for the settlement of the claim of
Ur. Lowell Holbrook; which aaid compromise
aad negotiation having failed, the acknowledg-
ment could not be given in evidence to Bustajn
the claim of the plaintiff. The defendant alto
objected to the evidence; as the plaintiff had
declared against the defendant aa Indoraer of
promissory notes alleged to have been made by
certain persona to him, he was bound to prove
the indoricment of the notes by the said per-
sons, and the court could not dispense with the
proof of the indorsements. The court refused
to give the instructions, as asked by tbe defend-
ant, and instructed the jury that the evidence
offered and admitted was sufficient to entitle
tbe p'aintlff to recorei against the defendant.
The jury having found a verdict for the
plaintiff, according to the instructions of the
court, and judgment having been entered there-
on, the defendant prosecuted this writ of
The CM* WB* aubmitted to the court by Mr.
King, who also moved the court to allow dam-
ages to the defendant in error at the rate of ten
per centum per annum, according to the 17th
rule of the court, which allows such damages
when a writ of error is sued out for delay.
■a*] *Mr. Chief Justice Tauey delivered the
opinion of the court:
This case comes up upon a writ of error di-
rected to the Circuit Court for the District of
Georgia.
An actioi: of assumpsit was brought in that
court by Lowell Holbrook against John iTNiel,
to recover the amount of four promissory notes
made by the defendant; one of them payable to
Lowell Holbrook, and three to other persons,
who had Indorsed them to the said Holbrook,
who was the plaintiff in the court below.
The plalntiflT declared on the promissory
notes, and did not insert tn the declaration any
of the usual money counts. The defendant
pleaded the general issue, and at the trial of
the case the plaintiff offered to prove by a com-
petent witness "that John M'Niel had repeat-
edly, and as late as the first of November (tbe
trial took place on the 11th of that month), ad-
mitted his indebtedness upon these four prom-
issory notes, and at that time offered to confess
a judgment for the amount of principal and in-
terest, upon certain terms, by which be was to
be allowed time for the payment of part. The
negotiation continued until the third of Novem-
ber, and was then only not completed from John
IiCNiei'e inability to pay the cash, which he
bad in the Hret instance offered." The counsel
tnr the defendant objected to the admissibility
of this evidence, upon the ground that it was
merely an offer on the pnrt of the defendant to
buy hie peace, in the course of a negotintinn
(or the settlement of the claim of the plaintiff,
which had failed. The objection was overruled
by the court ni tbe avidence siven to the
jury. The defendant excepted to this ophte
of the court.
The notes (which were indorsed in blaak},
together with the evidence above stated, vu
tbe only testimony given in the eaoae. Tki
plaintiff offered no evidence to prove Ue hand-
writing of tbe drawer or indnaera, and M eft-
dence was offered by the defendant.
The defendant thereupon moved tba «mri to
instruct the jurr: 1st. That tbe evidence gim
on the part of the plaintiff was not aulEideat t«
entitle him to recover on tbe three notca w
which he had declared aa indorsee, withoat pnn-
ing the indorsements of tbe payeea mentioMd
in the said note*. 2d. That if tbe jury belie««<
tbe acknowledgment above mentioned to ban
been made by the defendant in the ooune of s
negotiation with the plaintiff or hia attonej
for a compromise which had failed, and for tbt
purpose of buying his peace by such oompm-
mise, that auch acknowledgment waa not oifi
cient to entitle the plaint^ to recover on tkt
three 'notes, on whicn be sued aa indorsee, [*aT
without proving the indorsement of the paywt
A third prayer was alao made, which is Iki
same in substance with tbe first. The comt le-
fused to give the instructions asked for by tke
defendant, and directed the jury that the eii-
dence was sufficient to entitle the plaintiff I*
recover. To these opinions and to tne instne-
tion of the court the defendant excepted, tad
the case has been brought here for tba reviaiM
of this court.
We think the Circuit Court waa right in ad-
mitting the evidence above stated. There dots
not appear to have been any dispute betwcea
the parties as to the amount due on the noUa,
nor aa to the plaintiff'a right to receive it. TU
negotiation as disclosed in the testimony ««b
altogether concerning the time of paymentiasJ
not in relation to tbe amount to be pud; aod
the defendant, in the course of that vef "
admitted the debt, and offered to confe
lart. This was the acknowledgment of a fact
□y the defendant, and not an offer to buy Us
peace, and we think the testimony was properl;
received; although the admission was mtdt
pending a negotiation to enlarge tbe time tf
payment. The case does not come within tt*
reason or the principle which excludes offer* t*
pay, made by way of compromise upon a de-
puted claim, and to buy peace.
We concur, also, with the Circuit Court it
the instructions given to the jury after the tf-
timony waa admitted. The platntifT waa u
possession of tbe notes indorsed in Hank. TV
admission of the defendant of his liability tv
tbe amount, and his offer to confess a )ud(
ment, was an admission of the plaintilTs rigM
to the money due on the notes ; and conaeqnMrt-
1y, waa an acknowledgment that he was tk
maker of tbe notes, and that they had been 1^
gaily transferred to tbe plaintiff. Thcrv cmU
therefore, be no necessity for proving the m-
dorsements, because that proof would have m-
tabliahed nothing more than what had aJrMdy
been proved by tbe admissions of the defeadart-
For be could not have been indebted to Ot
plaintiff on these notes unless he was themakrt
of them, and unless they had alao bees legtit
tnuiaferred to the plaintifT.
P«tew 1)-
TOb Titw of tha mbject diipesei of the flnt
utd tbird inBtructions asked for b; the defeod-
As relate* to tbe Mcoad prayer, the court
would unqiieitioni.blf haye been bound to eiTi
it if there bad been any testimony from wEicl
the Jury could have infemd that the adniseior
• S*] in question *waa made aa an offer of com-
promise, and to buy hia peace. But we aee
dotbing in the evidence from which laeh
inference could have been drawn. There does
not appear to have been any negotiation
cerning the amount of the debt, or the plaintiff's
right to receive it, and the court is not bound
to give an hypothetical direction to the jury,
and to leave it to them to thtd a (set where no
evidence of such fact is offered, uor any evi-
dence from which it can be inferred. Such be-
ing the case here, we think the court did not
en in refusing this direction,
Tha same reasoning applies to the direction
which the court gave. If there had been any
evidence conducing to prutc tbe fact insisted
OD by the defendant, the jury were certainly the
proper judges of its sutfieieney; and tbe court
could not, without encroaching on the province
at the jury, have instructed them on that point.
But there was no contradictory testimony, nor
Any question in relation to the credibility of the
witneaa. The facts as stated by him were not
controverted, and In this stole of the evidence,
the counsel for the defendant, in his third
prRyer, moved the court to instruct the jury
thtit the acknowledgment so proved was not
■uffieient to entitle the plaintiff to recover, with-
out proof of the indorsements of the payees.
The point thus presented to the Circuit Court
waa upon the legal sufEcieney of the evidence;
the counsel for the defendant insisting that,
notwithstandin)( tlie admissions of the party
thBt hs owed the money on the notes, and his
offer to confess a judgment to the plaintiff for
the amount, yet the law required the plaintiff
to go farther, and to prove the indorsements of
tbe payees, before he could entitle himself to
recover. In other words, the point was raised
irfaether tlie ailniissions of a defendant, when
proved by competent testimony, are aufBcient
evidence of the transfer of negotiable paper,
-without proof of the handwriting of the payee.
It is in answer to this prayer that the court in-
atmeted the jury that the evidence waa suffi-
cient. The question aubniitted to the court
waa a question of law; and tnnied upon tbe
legml sufficiency of evidence of a certain de-
scription, to establish a particular fact. And
whether it was legally sufflcicnt for that purpose
or not : or whether the law required higher or
difTerent evidence, was a question for the court.
and not for tbe jury. The point had, in effect,
Iteen derided by the opinion of the eourt on the
defendant's first prayar, snd wal properly and
ctnrectly decided.
There is another gnrand upon which we
SV] think that the court 'were right In refua-
Ing to instruct the jury— that it was incum-
bent on the plaintiff to prove the indorsement
OB the notes purporting to have been made by
tha payees. By an Act of tbe Legislature of
Georgia psssed on the ISth of December, 1810
^n-ince's Digest of tbe Laws of Georgia, p. :
144), it ii enacted "that in all eases brought by I
KB Indorsee or indoraeea, assignee " — ■™™
on any bill, bond, or note, before any ootui of
law or equity in this State, the aasignment or
indorsement, without regard to the form, there-
of, shall be sufficient evidence of the transfer
thereof; and the said bond, bill, or note shall
be admitted as evidence, without the necessity
of proving the handwriting of the assignor or
aasignora, indorser or indorsers; any law, usage
or custom to the contrary notwithstanding.
In a suit, therefore, in the State courts, there
would have been no Decessity for proving the
handwritings of the indorsersj and tbe indorse-
ments themselves would have been prima facie
evidence that the notes in question had been
transferred to the plaintiff; he being in posses-
sion of the notes, and the indorsements of the
payers appearing thereon in blank.
The 34th section of the Judiciary Act, eatab-
tiahing tbe courts of tbe United States, I78B,
ch. 20, provides "that the laws o£ tbe several
States, except where tbe Constitution, treaties,
or statutes of the United States shall otherwise
require or provide, shall be regarded as rules of
decision in trials at commor lav in the courta
of the United States, in cases wbare they apply.
We do not perceive any auSlcient reason for
so construing this act of Congress as to exclude
from its provisions those statutes of the several
States which prescribe rules of evidence, in
civil cases, in trials at common law. Indeed, it
would be difficult to make the laws of the State
relation to the rights of property, the rule of
;iBion in the circuit courta, without associat-
ing with them the laws of the same State, pre-
bribing the rulea of evidence by which the
igbts of property must be decided. How could
the courts of the United States decide whether
property had been legally transferred, unleai
they resorted to the laws of the State to ascer-
tain by what evidence the transfer must be es-
tablished T In some cases, the laws of the States
require written evidence; in others, it dispenses
with it, and permits the party to prove his case
by parol testimony: and what rule of evidence
could the courts of the United States adopt, to
decide a question of property, hut the rule
which the Legislature of the State baa pre-
scribed! The object of the law of Congress
was to make the 'rules of decisions in [*90
the courts of the United States the same with
those of the States, taking care to preserve the
hts of the United States by the exceptions
tained in the aame section. Justice to the
citieens of the several States required tbis to be
done, and the natural import of the words uaad
in the act of Congress includes the laws in re-
lation to evidence, as well as the laws In rela-
tion to property. We think they are both em-
braced in it, and ss, by a law of Georgia, the
indorsement on these notes was made prima
facie evidence that they had been so indorsed
by the proper party, we think the Cinmit
Court were bound to regard this law as a rule
of evidence. It dispensed with the proof
which the defendant insisted on, and the Cir-
cuit Court, on that ground, were right in re-
fusing tbe prayers of the defendant, which re-
quired proof of these indorsements. Upon the
production of the notes, the plaintiff was en-
titled to recover without tbe aid of the parol
evidence, which ia the subject of all the defend-
ant's exceptions. For this reaaon, independ-
ently of the prineipleB hereinbefora stated, wa
1*11
M Sinwau Ootnr tm t
tUnk the Jiidguaat of tba CiTeuit Omrt btlov
might to be aStrmed.
The [fcfendant in error bai moved the court
to Allow him ten per cent, damage*, under the
ITth rule of the court, which providea thmt
irhen a writ of error shall appear to hare been
flued out merelj for ftelay, damagea ehall be
Rwftriled at the rate of ten per cent, per annum
on the amount of the judgment. We da not
consider thie caae aa one of that description,
And therefore award nothing more than the or-
diiuuy interest of sis per ccuL
Vx. Justice Bildvan dfiaented.
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United SUtea for the District of Georgia,
and was argued bf counsel; on conaidaration
whereof, it is adjuuged and ordered by this
court that the judgmeDt of the said GIreult
Court in this cause be, and the aame la hereby
aflirmed, with costs and damages at the rate oi
six per centum per ■nniiwi.
>!•] THE MAYOR, RECORDER, ALDER-
MEN, and COMMON COUNCIL OF GEORGE-
TOWN, Aj^tlanU,
Injunction at suit of Georgetown to prevent
construction of aqueduct scross the Potomac
— compact between Virginia and Maryland —
cession of District of Columbia to United
SUtes carried with it right to do what SUtet
could otherwise have done — equity Jurisdic-
tion in case of public nuisance.
A bill was Hied hi the Corfioratlon of Osorse-
towD. on bebair of tbemaelTes and tbc ciliicDi of
GcurgMown, apalnst tbe Aleisbdrls Canal Com-
(tan;, itstlng thai the companj w»re ftiDBlnictIng
an aqueduct scrou the Potomac RlTcr. wllhla tbe
corporate llmlls of flporgetowD ; thai tbe i'otomac
a public hIghwBj, and thst tba frr- ■ — -' "■-
rivi-r
1 tbe
order of the river, or Ibterested In Ua narlgstlon,
bT the compaet of t1G3 between Virginia and Marj-
IsDd. Tbe squeduct, with tbe works of tbe Alsz-
Non.— Public n
An Individual b
I, wbo msy mslDtaln ae-
Injnactlon In hla onn name, for • puliTlc duIsSBcs.
The special snd private Injur; resulting from a
relief aSRipBt It, Hebooner
sndria Canal Coaman, I
tht nSTlntlon of tETriva
of wbirt prepertf o~
Injpred tbe owaen
Tbe bill aaked aa
terfen in tbe matter: denied that their
vltbtn tbe corporate limits of Georcetown.
that (be court has Jurisdiction to Interfere, o
their charter : STsrrlng tbe; hSTe
the power cranled lo (hem Uj Cont.
of Hsf, 1S30. Tbe CIti'ull Court
>•'"■ -nd, on s ... -
of the
maile bj tbe two Slates Ic
Tbe cKlsens. IndlTlduallT, of botb Coa-
1T85 ..._
of State).
- -- G tbst
compact. But Ihe cltlieni of encb, iDdlTldualti.
were, In no Just sense, tbe parties to It. Theae jjar-
ties were (he two Slates of nblch (her were dU-
leuB, Tbe ■ame power which eitabtlsbed It was
competent to annul or to modify It. Vl.'sInU and
Marylsnd. If tbejr bad retained the portions of tei^
rltorj which respectlTely belonRed to them oa the
right snd left banks of tbe Totonisc, could bare *
far modlfled this cooipsct in to faare acrepd to
change an; or all of Its stlpulstioas. Tber eouA
by tbetr Joint will, have made anj ImpronBienCs
which the; chose: either by cauniB slons the ala^
slD ot tbe river, or bj tirldECB or aqueduoi* across
ceded to Congrens the portions of Ibe terrltorj es)
bracinf the fototoac Rlier__ within thel^r llmlti
whatev
e legluli
B of viralnl
ind Msrv..
' r that I
alOD. coald lie done by Cnngress. suhject t
The act ot CorcriBs which pranted the chnrter !•
the Alexandria Canal Corapanj la In no deinv* a
rIolatlDU of tbe compact between Ibe States of VIr
(Inla and MarylaDd. or ot an; of the rlktita that
be cllliens of ellher. or both Klatcs. claimed s*
lieing derived from tt.
TltP I'otomac Itlver U a narlaablastraai, or past
of the lua puNlcum : snd any obalrurlloo to Its
nsvlgatfon would, upon the most established pris-
clplen. he s public nuisance. A public Dulsniin- be
Ine tbe subject of crlmlnsl Jurisdiction, tb" ordi-
nary snd regular proceedlni; at law In I>.t liiikt.
may be abated, and tbe peraon who caom-d II may
tlon In ca-eB of public nuisance, by an lofori'-BtloB
tiled hv tbe Attomey-Qeaeriil, If any particular
lodivldual Bhall have aualalaed spetlal tlanuce
from tbe erection ot It. be may mslnlaln a private
action for sucb special dsmoce ; liecause, to that
eitent, be has lulfen-d beyond tain portion of l>-
Jurv. In common with tbe eommunltir st laifw.
While It Is sdmttted by all thst the JnrlmllctMi
of a court of eqully Id casH ot nuisance la esa-
fesaedly one of delicacy, and accordingly tbe ia-
erclsed Id those rsaes In which there Is
danger of Irreparable mlichtef. before the I
nesa of the Isw could reach It.
ste person, where he ts in Imminent dnnser ot ■
ferlug a apeclBl Injury, for which, under tbe e
cumatances of tbe ease, tbe law would not affe
so adequate remedy. But tbe plaloilIT Id so
iDdlvlr'^n, „
I. Mi'Connell, 1 Hcl.esn. 33T j norks v. Jnnctlon
Railroad, C McLean, 425: IB Vea 21S i IB Ves.
B16 ; Corning V. Ixiwerre, fl lonns. Cb. 43« ; At-
torney-General V. IltlCB Ins. Co. Z Johna. Ch. 3T1.
The regular snd ordinary proceeding s( law, la
by Indictment or Information, by wbleh tbe nnl-
saaee may be abated, sod the peraona who rsused II
may be punlabed. If any particular Individual shall
have Buatslncd special damage from a public nui-
sance, he msy maintain a private action for such
speclsl damage. Beglna *. WIgg. Z Ld. Baym.
UGS; Bteta>n v. Faion, IB F1(A. 1«T ; Barden T.
Crocker, 10 I'ick. 3B8l Shaw v. Cummiskey, T
Pick. 76.
Courts of equity will grant sn IBjuDctlon
•galnBt a public nalsaaca at tbs Instants of a prlv-
1*1S
a of a
irldge
1 from da:
salppl and Ul»-
. 165.
be proprietor at
Ohlrn":";??.
B tbi
not capable ot proof and eamputnt
thereof, and ao waa not reparable by tbe coune sf
(he common law. Held. Ihat a bill In equity by
tbe ?ta(e, to enjoin the tiridee aa a public aalsaneft
could be maintained. Pennsylvania v. Wbccllal
and Belmont Bridge Co. 18 Uow. BIB.
Where a bUl to abate a nnlsance Is hroucbt la a
tedsrsl court. It Is not necessary to show that Uie
pISlntltTs damages smoHnI_ to the sum whi
le couits ot the United States luri>
Isdlclloa Is tested by the Ta:i>- el
galnsd by the bill, an-* i' ' ' '
issa
iHi U&TOi, no., or OKoBomnriT t. Tbk Auxaxdiia Cakal Co. n al
TWr* an «■««■ to irbick It ta eampMenl f»r
•MM prnoDi to cam* Into ■ court of equltT —
plilntllTi fur CUiimsKlveg aiid othen Lnvlaa slml
iDlcrHlg. fncb Is (be famllJar eiaoiulp orKtiiil
called a rKdltor's bill. Hut. In all Ibeae ca«?«.
pcnlet bavt u intcicBt Id thi
«bli
tbc other
tKatvd as a klod ot plolntllts, vltb Iboae named,
although thejF tbemseirea are net nameit.
ON appeal from the Orcuit Court of the Unit-
ed .Slatea for the Countj of Waahingtor
ll the DUtrict of Columbia.
The appellants filed their bill in the court
below in Juty, 1S3G, stating, in substance, that
they were deeply interesled in the trade
navigation of the Potomae River, a com
highway; the unobstructed ubc of which ia
cured by a compact in 17SG between the States
of Virginia and Maryland. That the appellees,
under the alleged authority of an Act of Con-
neaa of the 2eth of May, 1S30, are engaged kt
Georgetown, and within ita corporate hmita, ■-
constructing an aqueduct over the said rii
That the said aqueduct ia designed to rest
maasive stone piers, having their foundation
tha Bolid roi^k at the iHittom of said river. Tliat
to build aaid piere colTer dams are used around
the aite of tliem, with a double row of piling,
the inner and outer rows of piling twelve or
thirteen feet apart. That the appellees have
finished one pier. That in building it, they
filled up the space between the inner and outer
TOWS of piling with clay and earth. The ap-
pellants e.\prcssed fears that the clay so used
would injure the harbor of the town and cban-
■el of the river; but they were assured by the
•ppellees that the clay so UBeJ, on completing
the pier, should be taken away, and not per-
mitted to be swept into the harbor and river.
The bill further states that, in the construction
of the second pier then in progress, the appel-
lees not only used clay between said rows of
piling, but threw large masses of clay and
earth into the open river, outaidp the outer row
of pitea; that the current of said river and fresh-
ets, to which it was subject, had swept and
t*"] 'would sweep said clay and earth Into
the channel and harbor, and bad materially in-
jured and would injure said channel and bar-
DOr. That the appellants had expended large
■uma of money (in part granted to them by Con-
greas) in deepening the channel of the river be-
low the town, and that the depth of water had
been materially lessened, caused in part, and
materially, by the said works of the appellees.
removal of the nalsBare, Mlsslnilppl and
1 R. H, Co, T. Ward. 2 Blsck. iHi.
■, tbc leaal. Injurj to an ladtvldual. hy a pub
lie nuisance, e. g., ai
[. T Cow. cm: 1 Bin. *e3; '
■Ing T. Rmltb, 8 Cow. 14S.
speefal Infu
' b7 «
t whici
,E"["
the
— U7en T. Ualeolm, 0
...... .... , .. .....J. A C. ese : S Blog. 01 ■. S Barn.
* Ad. TT ; 1 BInit. N. C. S22 : 7 Cow. 600 ; 8 Cow.
148: 4 Wend, «B : 9 Wend. HI!); Carbart T. Au-
bnni Gas U>bt Co. 2i Barb. SST.
No Indlvtdunl can maintain an action for dnm-
acea for a riibllc nuisance, ualeai he has fnatniniui
BB Injury which Is special fn Ita character.
ll not common to others affected by the l
Douberty v. Bunting, 1 Bandf. 1 ; Bntlir T. Kent,
18 /obBS. 2;U;Jli]ls T. Ball, 0 Wend. BID i Davis
V ""■ - "--•.--' j^ inbum
Jfaror of N. X. U N. I. 606: Caibart v,
f L.«d.
The U1I further states that thp appellant!,
before filing their bill, reraonstraUd againat the
use of aaid clay and earth in the open river,
outside tfae dams, to the oflicer in charge of
the work; but he asserted his right so to use it,
and would use it when the safety of his works
in his judgment required, and was so instructed
by his prmcipals.
The bill further stated that the appellants
had reason to believe, and did believe, that tbs
said operation would be r
struction of the
ning pier
the aqueduct if not arrested by the order of
the court, to (he manifest injury, (f not ruin,
of their harbor and channel. The bill further
averred that the appelleea were without suf-
ficient means to compleU the work, and called
for ft statement of their funds. The bill also
structed navigation. It prayed a pentetaal in-
junction against the appellees in the use of
clay and r>arth inside or outside the dama, and
against the progress of the work so conducted,
in which they were engaged, and for further
relief, etc., etc.
The answer denied the right of the appel-
lants to sue, and I lie jurisdiction of the court to
enjoin for a public nuisance, and to give the
relief prayed; denied that there waa any injury
or damage, and if any, that it was within the
corporate limits of Georgetown, and averred
the validity of the Act of Congress of 26th
May, 1830, and their right to proceed under it.
The answer avers that the said charter was
granted with the knowledge and acquiescence
of Georgetown; that a large amount of money
had been obtained and expended on the work,
and that appellees confidently believed an ample
amount had been and would he furnished to
complete it. They further sverred that they
had employed skillful and acientifle engineers;
that they had adopted the most approved
plan (as set forth in the hill), and that if any
injury had occurred, or should occur to the
river or harbor of Georgetown, which they de-
nied, it waa the necessary and inevitable re-
sult of the work itself. The answer admita
that, in building the second pier, In consequence
of a freshet in June, 1836, alleged to have
swept off the original deposit at the Itottom of
'the river round the pier, and thereby ["#4
loosening the outer piles of the <lam, thejr did
throw in clay outside the outer rows of piles, to
Gas Light Co. 22 Barb. 2B1: Oabome t. Brookljs
City It. H. Co. 6 Blatcht. 3C6 : Currier v. West
Side Il.^Rj_ Co. 8 Blatehf. 4ST ; Seelj v. B lebop. le
correct abuses merelj
. ... . -- r—'tJ BSltInc Ita
Bid can show that lome private Injury la actually
SuaUInnl or npn re bended by falm. Bcverldge v.
Lsc*y. B Sand. 68.
Althougb a DUlasnce may be public, yet If any
le receltes a partlcalsr Injury therefrom, he may
ive an action Car It. Burrows v. Ptilty, 1 Raot,
12.
A bill In equity tor sn InJuactlDn s^laat a pub-
lic nuisance will not be frmnlpd. unless It apppsra
' tbs party complaining will snatsln a aneclal or
peculiar damage, an Injury distinct trom that done
10 Che pul)llc at large. ^^n)t v, r.iwn-nre. "n
i-oao. 11T; Blgetow T. Hartford Bridge Co. 14
Conn. B8B ; O^rtea t. Norwich anil n'orcesier
Ballroad^Co. 11 Cooa. SI2; Baely v. Blahop, 19
StiPDBitx CouB-r or tbk Uiiim Sftrta.
raptaM latd depoalti that it wm txtetu^ry to
do HI, and the only practicable meiDB to Bav«
llieir workj that Unas an emutgvavy not likely
again to rise, and that it did not and could
not produce the inischiefa alleged and appre-
(tended by the comp'ainatita. To so much of
the bill ai averred the flaancial inability of ap-
peileea to complete the work, and called for a
davetopment ul their reaourcca, they demurred.
Proof waa taken on both sidea, and flled with
the bill and answer; the general replication
died, and the cause by coraeut set for final
hearing. The court below refused to grant Ibe
iDjunction and the relief prayed, and dismissed
the bill, and the appellants thereupon appealed
to the court.
The case was argued by Mr. Key for the ap-
pellants, and by Mr. Com and Mr. Jonea for the
■ppellees.
For the appellants, it waa contended; 1.
That the court erred in refusing to grant the
relief prayed for.
Z. Because a wanton and irreparable injury
to the navigation of the river results from the
manner of the defendanta' construction of their
S. Because, by the compact between Mary-
land and Virginia of 176S, and by the Act of
Cession of 1791, the free navigation of the
River Potomac and the rights of the citisens of
Maryland and Virginia, and of the district,
were secured.
4. If the charter authorites the erection of
worka which destroy the rights and property
of the complainants, it is void as against the
Constitution of the United States, no compen-
sation being provided for such injuries by the
charter.
Mr. Justice Barboni delivered the opinion of
the court:
This is an appeal from a decree of the Cir-
cuit Court of the United States for the County
of Washington in the District of Columbiti,
dismissing the appellants' bill.
The appellants filed their bill in the court
below, in behalf of themselves and the citizens
of Georgetown, against the appellees; contain-
ing various allegations, the material parts of
which are substantially these: That the ap-
Eellees, who were defendants in the court below,
ad lieen and then were engaged in constructing
• S*] *an aqueduct over the Potomac River at
Ceorgetown, within its corporate limits, imme-
diat«Iy above, and west of the principal public
and private wharvea of the town; that the Po-
tomac River, above end below the aqueduct,
continuously outward to the sea, was a public
navigable Mghway; that the free use of that
river was secured to all the people, residing on
Its borders or interested in its navigation, by
m compact between the States of Virginia and
tlaryland, in the year 1786; that Georgetown
derived its chief support and prosperity from
the trade of the Potomac; that large sums of
money had been expended by the coifiplain-
ants at the wharres of the town In deepenine
the water on the bar across the main chann^
immediately below the town, and north and
west of the long bridge across the Potomac;
that the defendants had eonstructad one mas-
sive atone pier, and were about to construct
othera ; that by the use of clay and earth thrown
4014
in, to nake cloae certdsin eoffer dan* wmi if
the defendants in the conotmction of the pi«^
the harbor has been injured, and the depth rf
water in the cut or channel through the bar
below the town, has been diminished already,
and that they apprehend serious injury ia
future from the same caueea; that by the eoa-
stuction of their piers of stone, and in sneh t
way aa greatly to increase the force of
the current, other earth and mud hat*
been, and will be washed down by the velocity
of the current, to as to injure the wharvM
and harbor of the town and impair the
navigation of the river. The bill diargn
that the aqueduct can be constructed withmit
the use of clay and earth, from nhieh ao mneli
injury is apprehendiKl. It proceeds to state,
in minute detsit, the nature and character of
the injury apprehended to the harbor, wharrst,
and navigation, and concludes with • prayer
for an injunction prohibiting the defendants
from further depositing earth and clay in tkt
Potomac River, outside or inside their coffer
dama, or otherwise, to the injury of the navi-
gation of the river and the harbor of George-
town, and with a prayer also for general relnf.
had any right, title, or interest in the waters of
the Potomac River, which they aver to be a
public navigable river and a common faigli-
way; they deny that the works. In the con-
struction of which they are en^ged, are with-
in the corporate limits of GeorgetowTi; tktj
deny the right of the Corporation of Ceorge-
town to flte the bill in behalf of the dtizens d
the town; they deny the jurisdiction of a court
of equity over nuiaances in public rivers and
•highways; and also its power to enjoin [■••
them from the prosecution of the works ia
which they are engsged, under their charter;
they Insist that Congriiss had full power to
grant to them the charter of incorporation, and
lo authorize the constniclion of the works is
which they are engaged. They aver that they
have not transcended the power conferred l^
their charter, whii-h was granted to then br
an Act of CongresB parsed on the 28th of Maj,
1B30, which they exhibit as a part of their ai-
awer. They then proceed to answer the Ull at
large upon its merits.
It is unnecessary to state the evidence tn tb*
case, because our opinion is founded upon cop-
siderations independent of the facts which ttal
evidence was intended to prove.
We shall forbear also from any expression ft
opinion upon some of the topics discussed at
the bar. because, whilst they are important ia
their character, they have no bearing upon th
principles on which our judgment proceeds.
We will now verj briefly state them, and
the conclusions which necessarily flow fro«
them. The compact made in the year ITBi,
between Virginia and Maryland, was made by
the two States, fn their character aa States.
The citisens, individually, of both roramoa-
wealtha, were subject to all the obligatitxis in-
posed, and entitled to all the brneflts confenrJ
by that compact. But the citizens as suA.
individually, were in no just sense the partite
to it; those parties were the two SUtet «
which they were citizens. The same posW
which established It was competent either ta
Peleis II.
Thi Uatob, src, OF QmoaavtowK r. Thb Auxariwu Caxal Co.wta.
1S38
MWu] or to modify it. VirglaiK uid Maryland,
then, if they had retained the partions of ter-
ritory roipei'tivety bcIoDging to them on the
right and left banks of the Potomac, could have
ao far modilied this compact as to have agreed
to change any or all of ita stipulationB. They
couid, by their joint will, have made any im-
provement which they chose, «ither by canali
along the margin of the river, or by bridges or
aaueducti across it, or in any other manner
When they ceded to Congress the portions of
their territory embracing the Potomac River
within their limits, whatsoever the LegialatureH
of Virginia and Maryland could have done by
their joint will, after that ceaaion could be done
by Congresai subject only to the limitations
imposed by the acts of cession.
We ai« satisfied, then, that the act of Con-
greas which granteid the charter to the Aleian-
dria Canal Company, is in no degree a violation
of the compact between the States of Virginia
• T*I and Maryland, or of 'any right* that the
'■itiKcns of either or both States claimed aa be-
ing derived from it.
Congress, then, having the power, authorized
the Alexandria Canal Company "to cut canala,
erect dams, open feeders, construct lorlca, and
perform such other worlcs as they shall judge
necessary and expedient for complpting a c-'
from the termination or other point on
Chesnpeake and Ohio Canal, to such place In
the town of Alexandria as the board of din
ora shall appoint." Now, as one of its tern
was authorized to be either the termination
some other point on the Chesapeake and Ohio
Canal, and toe other some place ia the towr -'
Alexandria, and as the Potomac lies betw
these termini; the authority to construct
aqueduct was granted ex necessitate. But, if
certainty reouired to be made more certain,
thia is done by the language of the ninth and
fourteenth sections of the Act of May Z6th,
1830, granting the charter, in both of which
tha term aqueducts is used in such a manner aa
Incontestably to prove that Congress considered
tbe power to construct them as given by the
If, then, as we have said, Congress had
power to authoriie the construction of an aque-
duct across tbe Potomac; if so having the
power they have given to the Alexandria Cana!
Company the authority to construct it; and If,
in the conatruction, that company has not ex-
ceeded the authority given them, either in the
thing done, or in the manner of doing it, ■ ~ ~ ~
to produce the least injury or inconveni
practicable, consistently with the execution of
the work, it would be diflicult, as a legal prop-
oMJtion, to predicate of such a work that it was
unlawful, or that It was a nuisance, so as to
justify a court in interfering to prevent Its
pnigreas towards completion.
It ia nnneccasary, however, to proaecitte this
Inquiry, because there ia a view of this subject
which we think dedslve of the ease.
Wera it even admitted that the Canal Com.
p*ny had exceeded the authority under which
the; are acting, nevertheless, as the Potomac
River ii • navigable stream, a part of the jus
publicum, any obatnwtlon to ita navigation
would, opciD the most establisbad principles,
b« what b declared by law to be > ^blic nul-
• Xi. ed.
nee. A public nuisance being the aubject of
iminal jurisdiction, the ordinary and regular
proceeding at law ia by Indictment or informa-
tion, by which tbe nuisance may be abated;
and the person who caused it may be punished.
If any particular individual sliall have sua.
tained apecial 'damage from the erection [*tB
of it, he may maintain a private action for luch
special damage; because to that extent he baa
suffered beyond his portion of injury, in com.
mon with the community at large. 6 Bac.
Abr. Nuisance, B. p. El; 2 Lord Raym. 1183.
Besides this remedy at law, it is now settled
that a court of equity may take jurisdiirtion In
cases of public nuisance by an information filed
by the Attorney -General. This jurisdiction
seems to have been acted on with great caution
and liesitancy. Thus, it is said by the Chan-
" r (in IS Vesey, 217) that tlie instances of
interposition of the court were confined
rare. He referrpd, as to the principal au-
thority on the subject, to whnt had been done
in the Court of Exchequer, upon the discussion
of the right of tb» Attorney-Gencrnl by soms
ipecics of information, to seek on the eqiiilable
iide of the court, relief aa to nuisance and pre-
ventive relief.
Chancellor Kent, in 2d Johns. Chan. S82,
remarks that the equity jurisdiction, in caaes
of public nuisance, in the only cases in which
it had been exercised, that ia, in cases of en-
croachnient on the king's soil, had lain dor-
mant for a century and a half; that is, from
Charles I. down to the year 1795.
Yet the jurisdiction haa been finally sua-
tained, upon the principle that equity can give
more adequate and complete relief than can be
obtained at law. Whilst, therefore, it is admit-
ted by all that it is confi-asedly one of delicacy;
and accordingly, the instances of its exercise
are rare, yet it may be exercised in those cases
in which there is imminent dnnger of irrcpara'
ble mischief before the tardiness of the law
could reach it.
The court of equity, also, pursuing the anal-
ogy of the law that a party may maintain a
private action for spei'ial damage, even in cos*
of a public nuisance, will now take jurisdic-
tion in case of a public nuisance at the instance
of a private person, where he is in imminent
danger of Buffering a special injury, for which,
under the circumstanci'S of the case, the law
would not afford an adequate remrdy. Amongst
other cases, this doctrine ia luid down in the
case of Crowder v. Tinkler, ID Vcsey, 816. In
that case (p. S23) the Chancellor says, "Upon
the question of jurisdiction, if the subject was
represented as a mere public nuisance, I could
not interfere in this esse, aa the Attorney-Gen-
eral is not a party; and if he was a party upon
the dicta, unless it was cleariy a public nui-
sance generally, the court would not interpose
by injunction until it had been tried at law,
Tho complaint Is, therefore, to tie considered
as of not 'a public nuisance simply; but ['#»
what, being so in its nature, is attended with
extreme probability of irreparable injury to the
property of the plaintHfs, including, also, dan-
ger to their existence; and on such a ease,
clearly established, I do not Itesltate to say an
injunction would be granted."
The pHndnle ia also distinctly asserted and
101»
SupBGUK CotWr tor TUB UNItD STATM.
•tUd on b7 Chancellor Kent, in the com of
Corning et al. t. Loneire, 6 Johns. Chftit. 430.
Id that ctse, a bill was flled for an injunction to
restrain the defendant from obstructing Veatrj
Street, in the city of New York, and averring
that he was building a house upon that street,
to the great injury of the plaintiffs, ai owners
of Iota on and adjoining that atreet; and that
Vestry Street had been laid out, regulated and
paved, for about twenty years.
The Injunction was granted; the Chancellor
■aid that here was a special grievance to the
plaintiffs, affecting the enjoyment of their
property and the value of it. The obstruction
was not only a common or public nuisance, '
narked a special injury to the plaJntiffB.
The principle then is, that in case of a public
nuiHancE, where a bill is filed by a private per-
son, asking for relief by way of prevention, thi
plaintilT cannot maintain a stand Is a court of
equity, unless he avers and proves some special
With this principle as our guide, let us now
examine the pretensions of the appellants in
this case. Who are theyT Not, indeed, a pri-
vate person, but a corporation. They protesa
to coinj into court for themselves, and for the
citizens of Georgetown. Now, it is not even
pretended that, in their character of a corpora-
tion only, thev have any power or authority
given to them by their charter, to take care of,
protect, and vindicate, in a court of justice the
rights of the citizens of the town in the enjoy-
ment of their property, or in removing or pre-
venting any annoyantx to it. Nor does su^ a
power attach to them In their corporate char-
acter, upon any principle of the law in relation
to corporations. The complainants, then, must,
as in the case of private persons, to maintain
their position in a court of equity for relief
against a public nnisance, have averred and
proved that they were the owners of property
liable to be alTectcd by the nuisance, and that,
in point of fact, were so affected, so as that
they thereby had aulTered a special damage.
Mow, there is no such averment in this bill.
The appellants seem to have proceeded on the
id?a that it appertained to them, as the corpo-
tOO*] rate authority in 'Georgetown, to take
care of and protect the interests of the citizens.
In this idea we think they were in e;ror; and
that thpy csnnot, upon any principle of taw,
be recognlxed as parties competent in court to
represent the interests of the citiMns of George-
town. Nor is the difficulty obviated by asso-
ciating with them the citizens of Georgetown,
as persons in whose behalf they sue. There
are indeed cases in which it is competent for
tome persons to come into a court of equity, as
Saintiffs for themselves and others having sim-
ir Interests; such is the familiar example of
what is called a creditora' bill. But in that,
and all other cases of a like kind, the persons
who by name bring the suit and constitute the
parties on the record, have themselves an inter-
est in the subject matter, which enables them
to sue, and the othere are treated as a kind of
co-plaintiffs with those named, although they
themselves are not named; but in this case it
haa been already said that the appellants have
no such interest as enables them to sue in their
own name, and conseanentlT tha whole anal-
ogy faila. Uoreover, If the citisens of Oeorg^
town were even parties on the record; the ^-
jection would equally lie against them, unlcw
they could show a special damage a> a gnami
to stand upon.
With these views, we an of opinion that thi
decree of the court below, dismissing the appd-
lants' UU, la eorreet; it is therefore affir—1
with costs.
This cause came on to be heard on the tran-
script of the record from the Circuit Court al
the United States for the District of Columbia.
holden in and for the County of Waahingt«n,
and was argued by counsel; on eonsideratioa
whereof, it is decreed and orden^d by this
court that the decree of the said Circuit Ctmrt
•FRANCIS WKST et al., AppeHanta, ['l*!
WALTER BRASHEAB.
A defendnnt In an sppeil, ailnc the eopv of tbt
record received from tbe Circuit Court lodftd ^
the appellact, caonot hate the sppriil docketed and
dismissed, uoder (he 30Ih rule at tbv cuurt, oa tbt
ETOund that the anpeUHnt hs« Called to comply with
the BTtb rule, which requli-i-s a bond ta be glrea to
tbe clerk ot tbe Supreme Court brtDre tbe case Is
docketed. He tnuit. (o aUHtnlD a motion to dismla
tbe cause, produce the cerllHcale of tbe Clrcall
Court stating tbe cause, snd ci-rtlCvlnic thnt luch
an appeal bu been duly sned oat snd allowed. |
APPEAL from the Qrcuit Court for the Db-
tfict of Kentucky.
On a motion of Mr. Crittenden, eounael fcr
the defendant, to dismiss the appML
Mr. Chief Justice Taney delivered the opin-
ion of the courti
In this case an appeal has been taken Ina
the decree of the Circuit Court for the Eighth
Circuit, and, a copy of the rftoord in due for*
has been lodged by the appellants with theelerfc.
But the cane has not been docketed, because the
appellants have not flled the bond to secure the
fees to the clerk of this court, prescribed hj
the rule No. 37, adopted at January Tem,
1B31.
Upon tbe record brought here as above nen-
ttoncd, the appellee has moved the court for |
leave to docket and dismiss the case, under the i
30th rule. We think this cannot be done. Tbe |
appellee, upon producing the certificate frem i
the clerk of the Circuit Court, as mjuired by
the 30th rule of this court, stating the cause aad j
certifying that such an appeal had be*n duly >
sued out end allowed, will be entitled to have
the case docketed and dismissed. But this caK-
not be done on the record brought here by thi
appellants.
The motion la tharefora overruled.
DBAsroit t. Tui Fau^oib' Rank u
THE FARMERS' BANK OF DEI^WAHK.
Priority of United States, oarporationi to be
considered ptrsonB under lut of CongrcsB—
traiufer of property in meaning of act — lia-
bility of peraoD taking.
Ptdd the lanEuam emploTed In thtt flftli aectlon
of th> Act of CancreM Ot Uarch S. ITOT. flTlnic ■
prlurltf to debts due t« Uie Cullnt Slatw, and tbe
conalructloa glvfn - " "- -- '" '
tbc pron-
> pay all hia
a*u[i. jiiiro. x> ^Tintnc^ pan ue r<v«1rfd of the
Inanlvrncv of Ibe deblor until bi bas b«en dei«stcd
■■■ctiOD. fourth. WbfDfTrr thr debtor la tbui de-
vratad of bli
iDVCalFd witb ... ., ..
the Uoltrd Slum, and li ...
flrat, out of Ibe itrocpeds of tbe debtor a propertr.
Ail deUtoni to tbe IJnltfd Statea. whateTcr their
Chan-^ler. and liv wbati'vcr uiDde bound, mar be?
talrlr .'ucludFd trflbln tUe laDguage uicd In Ibe flflb
that Conirress Intrnded to slit priorltr of pajmcnt
caseg aimed tbcrrlD. It llieiefoic Ilea upon thoii
aintutc to abow tbat tbey ar« not wltblD its pro-
<:or[ioratloi]B are to be deemed and <^>naldcred
iwrBona within the praTliiLone of tbe fifth ■eelloD of
th« Act of CongriKu of ITOT: and tbe pritirltj of
the Cnlled Slnlea eilata aa to debli due fo " '"
the ault of tbe United Statei, tbe Culled Blatei
bdnif eredllora of Ibe l^lkion Kank. aud It was li' '
on the aame funds which bad been prerioualT i
taehed at (be anlt Of Ibe Farmfra' Bank oC Del
ware. Tbe moneji (bus attached b; the Karmei
Ilink of Delaware, In the bs idi of a debtor to t
Elkton Bank, by leRBl pmceaa. betore the IhdIi
of tbe BttaebmeDt In behalf of tbe [Inlted Stati
waa bound for tbe debt for whicb It was flr
■■ which h ■ ■
States baa « tiRbt to appoint recelTcra of tbe
Eispntj of an Inaoltent hunk which ia Indebted
tbe United Stalea, tor Ihe purpose of baTlcg tbe
praprrtr of the bank collected and paid over to
Mtfafj the debt dne to Ibp United fltaCes br Ibe
bank ; this would not be a tranater and poHesslon
Of the propertj of tbe bank wllblD llie mesnlDft
of the act of ConRTMiB, and tbe right of the Unit-
ed states to a priorltj of patment would not have
attached to the funda of the bank.
The f,eglBlatnre of Marrlaod psas'd an act aa-
thnrlilng the atockboldera of tbe Elkton Bank to
elect truiteea. who were to take poni'nilnn of the
fundi and propertj of the bank, for the purpoaei
Init the residue of the tand*, which mifbt be col-
lected bT them, anonit tbe stoekbaldert. This, bad
the law been carried into effect, wan not frh n" m
inn*] algnment *of alt tbe propertj of tha bank
• would entitle the United Slatea lo a prlorllj u(
ir other wlae, onleai
f becomes Imested with tb« Utla. Tha' mi
Ihe transfer of properly takci place, tbe p«J
ktni; It, whether bj rolutitarj aailin>ment o
•4. a. 8. fli«.
Prlwltr of tbe Ooltad BtatH la napeet to pay-
ment tnm aaatts •( debtor, ••• sot* t« ICtf 1..U.A..
iiJS eutrn'^v
th« talthtnl par-
ERROR to the Conrt of Appeali of the But>
em Shore of Maryland.
This suit was commenced In theCaefl Ooutitj'
Court of the State of Maryland, in September,
1^30, by an attachment Issued at the initKnce
of the Farmers' Bank of Delaware against the
Elkton Bank of Maryland. To thia writ tbe
HherilT in October, 1830, returned that he lutd
bands of George Beaston, to the amount of Hve
hundred dollars, to the use of tha plaintilTs in
the attachment.
In April, 1B34, the counael for the plaintlfft,
and for Mr. George Beaaton, agreed on the fol-
lowing atatement of facta:
It ia Ai^eed that In 1828, the United StAtM
instituted suit against the Elkton B*nk, in the
arcuit Court of the United States; at the De-
cember session, 1R89, ■ rerdict and Judgment
were rendered bi said eidt fn favor of the Ui^t-
ed States, for twenty-one thousand two hundred
dollars, on which juilgment, a fl. fa- was iasued
to April Term, tS30, and returned nulla bona:
but it Is admitted that, at that time, tbe said
prrsident and directors of the Elkton Bank
had a large landed eatate, which has efnoa
Iteen sold and applied to satisfy, in part,
tbe said judgment ; which landed ealata,
together with all other effects or property be-
longing to tbe bunk, would not enable the bank
to pay its debts: and that the said property and
effects are insufficient to pay the said debt due
to tbe United States, and it is admitted that the
iMiitk was then unable to pay ita debts. An
appeal to the Supreme Court of the United
.States was prosecuted, but no appeal bond
given, and the Judgment was affirmed in the
□e Court, *at the January Term, [*10«
At the April Term, 1830, of the Qrcittt
Court, a bill in equity was filed against the said
bank at the suit of the United States; and
Nathaniel Williama and John Glenn ware ap-
pointed, by an order of court, receivers, with
authority to take possession of the prop^ty of
the said bank, to dispose of the same, and to
collect all debts due to It.
The proceedings by the United States against
tbe Ellctou Bank, and the acts of tbe raceivera,
Mr. Williams and Mr. Glenn, were made a
part of tha agreement as to the faeta of the
At December session, IBSS, application waa
made to the Legislature of Maryland 1^ tbe
several persons who were the acting president*
and the acting directora of the said bank, for
the act which was pasaed at that aeadon (eh.
170), which, with all other acU relating to
said bank, are to be oonsldered as part of the
statement.
The act of the L^slatnre of Maryland an-
tborized the appotntroent of trustees by tha
itockholders of the Elkton Bank, on certain
notice of tbe meeting of the stockholders beinf
given ; who were to take possession of the wboU
of the property of the Elkton Bank, and to
proceed to the adjuitment of ita « •
SuFBBME Court of the Uhitb) Statbb.
I83S
tion of the notice mentioo«d «nd required in
the act incorporating the bank and its supple-
ments; and at the Boid mtettng a majority of
tli» stotk hold era appointed two trustees, in con-
formity to tlie proviaiona of aaid act, who de-
clined accepting, and no trustees have ever Iiesn
alnce appointed, nor has there since been an
annual or other metting ot the stockholders, or
■11 election of direi;tors, nor have there been
uny banking operations carried on hf any per-
sons professing to be the corporation of the
Elkton Banic since March, 1829. At September
Term, IS28, the Elkton Bank obtained a judg-
ment against George Beaston for the sum which
is attached in this suit, which, at the time of
the iBsuin),' and service of this attachment, had
not been paid by Beaston. At April Term,
IB30, the Farmers' Bank of Delaware obtained
in Cecil Count? Court a judgment against the
S resident and directors of the Elkton Bank for
ve thousand dollara, with interest from Bth of
December, 1626, till paid, and casta; and before
the appointment and bonding of the receivera
as aforesaid, and on the 24th of September,
IS30, upon that judgment, issued this attach-
ment, and attached in the hands of said Bea-
eton the sum of five hundred dollara; and after
this attachment was issued and served, and after
10ft*] 'the afRrmation of the judgment of the
Circuit Court b; the Supreme Court, an attach-
ment was issued by the United States, and the
other proceedings had, aa appeared by the rec-
ords of the Circuit and Supreme Courts of the
United States, which were made part of the
case. Beaston has actually paid and satisfied
the United States the amount for which judg-
ment of condemnation was rendered against him
in the Circuit Court. It is admitted that, up
to the time of the decision in the Supreme Court,
the said receivers never had collected or received,
or by any process of law attempted to col-
lect or receive the said debt attached in this case.
The question for the opinion of the court is,
whether the plaintiff can sustain the present at-
tachment.
By the record of the proceedings in the dr-
eult Court of the United States for the District
of Maryland, it appeared that upon the judg-
ment obtained in December, IS29. againat the
Elkton Bank of Maryland, the United States,
on the 2d of July, 1631, issued an attachment
against the effects of the Elkton Bank; which
attachment was laid on the effects of the bank,
in the bands of George Beaston, on the IDtfa of
October, 1B31.
The answers to the interrogatories filed on
behalf of the United States by George Beaston,
Btat«d "that prior to the time of laying the at-
tachment in this cause, he was indebted to the
Elkton Bank of Maryland in the sum of five
hundred dollara, or thereabout, with Intereat
from aometime in 1628 (the period not non
exactly recollected); that in October, in the
year 1830, an attachment at the suit of the
Farmers' Bank of Delaware against this depo-
nent, as garnishee of the Elkton Bank of Mary-
land aforesaid, was served on him, returnable
to Cecil County Court, where the aaid attach-
ment last mentioned is still depending; thst at
the time of the service of the attachment in this
cause, at the suit of the United States, the said
snm of Ave hundred dollars, and intereat, was in
the handa of deponrat, and atill ramaia m: who
clutiis to retain the same, as be is held lisbla la
the payment of the attachment first served os
him,at the suit of the Farmers' Bank of Delaware
aforesaid; and as be considers himself antitled
to a let-ofT, aa is hereinafter stated. Deponent
further says that be does not exactly recollect
the time when said debt was contracted, sa kc
tiaa had various negotiations with said bank;
but that, at the time he received money frodi
said bank as a consideration for his debt, it was
received In the notoa of the said Elktoo Bank,
which were then, as he believes, in a state of
depreciation of from ten to twenty per c«nt. on
their nominal value."
'That since the aervice of the snm- ['lOt
mona in this cause, he has not paid to the Elk-
ton Bank aforeaaid, or to any other person, for
the use of said corporation, any part of the
money aforesaid: nor has he made any traasfsr
of goods, property, or effects, to secure the pay-
ment thereof, or any part thereof; that he is tbs
bona fide holder and owner of notes of the XSk-
ton Bank aforesaid, of the value nominally' of
eight hundred and forty-two dollars and thirty-
one cents; and he claims to set off against any
demand made in this, or any other proceeding
against him, tor the debt aforesaid, so many tri
the said notes at their nominal value, as maj be
equal to the sum claimed from him In this at-
tachment, as garnishee of said bank.
George Beaston also filed a plea of nulla bona,
the following words: "That the said United
States of America, conden:nation of the aaid
sum of money in the attachment aforesaid, and
return thereof aperified in the hands of him. tbe
said George Beaaton, as of the goods, chattels
and crediis of the said president and directors
of the Elkton Bank of Maryland, ought not to
have; because he saith that tbe said George
Beaston, at the time of laying the said attach-
ment in the hands of him, tbe said George Beaa-
ton, he had not, nor at any time since hath had.
nor now hath, any of the goods, chattels, or
credits of them, the said president and directora
of the Elkton Bank of Maryland, in bis hands;
and this he is ready to verify. Wherefore, he
prays judgment whether the said United States
of America, condemnation of the said money in
the attachment aforesaid, and return thereof
specified, as of the goods, chattels, and credits
of the said president and directors of the Elkton
Bank of Maryland, in the hands of him, the said
George Beaaton, to have, ought, and so forth." i
The United States filed a replication to this
plea, and issue being joined, the parties went to |
trial on the pleadings, and a verdict was foond '
by the jury in favor of the United States foe |
SIX hundred and eighty-five dollars and sixty-
On the case thus agreed on, and the mattM
set forth and referred to in the same, the Oecfl ,
County Court gave a Judgment in favor ti |
George Beaston, and the plaintiffs appraled to
the High Court of Appeals of the Stste of I
Maryland. The judgment of the Court of Os- j
cil County was reversed by the Conrt of Ap- |
peals of Maryland, and the defendant proae
cutad this wnt of error to the Supreme Court
of the United States.
The opinion of the Court of Appeals of Uarj-
land states tiie reasons 'which indacsd l*l»»
that court to r«ver«8 the Judgment nf tbs
Court of Cecil County. It waa aa follows:
Peten IS-
it-as
BuOTOK V. Tub Fauuju' Sakk or Deu.waik.
"Kxemptioti li eUimed kj the defendant
Irom the operation of the fttt&cfament in tlii-t
eue. Having had Judgment of condemnation
Maaed againat him for the Amount he stood in-
dabtod to tlie Elkton Bank of MarylnnH. at the
•nit of the United Statea, and having paid the
money under luch judgment, he rests hit dc'
fense upon an alleged prioritj given by the ncti
of CongreMto the goremment; and upon cprlain
proceedings of the goremment bad in the Cir-
euit Court of the United Statea for the District
of llaryland, for the reeoverj of hi« claims
againat the Elkton Bank of Maryland. The
prioritj of the United States is mppcised to be
foundcKl oo the just countruetion of thp tB\TB of
Congress, making provision for the collvetion
of her debts. We have been rcferrrd, in the
argument, to the law of ITSO, ch. 5, lec. 21,
1<!)0, ch. 35, sec. 45; 1TB2, ch. 27, aco. 18;
1797, ch. 74, sec. G; and the collection law to
be found in the 3d vol. of the Laws of the
United States, ch. 1"B, nee. 05. Inlctprcta-
tions of various deriiiiona of the Supreme Court
«l the United States, and of the circuit courts,
have been given to these acts of Con);ress,
which leave no doubt as to their coiutruction.
It will be, therefore, only necesaary to refer to
them. The two tlTst acts above cited had refer-
ence to bonda given for duties, and the third act
above referred to made provision in relation to
tbe securities in such bonds. These acta gave
• preference to the United States in all casea of
insolvency, or where any eatate in the hands of
executors or adminiHtraton shall be insuM.
cient to pay all the debta of the deceased; and
ft was declared thnt the case of insolvency re-
ferred to should be deempd to extend to all
eases in which a debtor, not having sufficient
property to pay all his debts, should have made
• voluntary assignment thereof for the benefit
of hii creditors, or in which the estate and ef-
fects of an absoonding, concealed, or absent
debtor, shall have been attached by process of
law. or to cases in which an act of legal bank-
ruptcy shall have been committed; and, by the
two subsequent laws, the same orovision was
made, securing tbe priority -if the United
States, and applying them to all other debts due
to the United Statea. In the year 1805, the Su-
preme Court was flrat called upon to put a eon-
•tniction upon thene laws; nnd it was adjudged
(in 3 Cranch. 73) that the United States would
IpUn BO priority, in ra!>e of a partial bona fide
transfer of his property by tbe debtor, but could
only obtain it by such a general devestment of
property as would, tn fact, be equivalent
108*] *to insolvency In Its technical sense. In
I8ID the same court decided that the term "in-
BOlvency," as used in the first acts, and "bank-
ruptcy," as UBPd in the latter acts, are synony
Njld that insolvency must be understood to
rnean a legal, known insolvency, manifested by
eoine notorious act of the debtor, pursuant to
law; not a vague allesation which, in adjusting
conflicting claims of the United States, and In-
dividuals against debtors, it would be difHcutt
to aecertain. S Cranch, 431. The same construc-
tion has been metntained In 2 Wheat. 3S0: and 4
Peters. BBB : and in ■ very recent case, Mr. Justice
Thompson says, "the act looks to a legal insol-
vency, where tbe property it taken up by the law
• L. ad.
for distribution among tho creditors of the debt-
or. There is no difiicuHv in the coustnietion of
the statute until we arrive at the last nliroM—
"legal bankruptcy," What is legal bank-
ruptcyt In 17B7, when the Act of Congress
was passed, the United StatM had no bankrupt
laws. The words, in their connection, seen) to
have reference to the previous cases put in the
section, and to point out some legal insolvency
or some mode of proceeding, by which the prop-
erty of the debtor is taken out of his hands to
be distributed by others. Paine's G. C. R. S2U.
Such being the construction of the arts of Con-
gress giving the government a preference, we
proceed to inquire whether the Elkton Bank
was in bdcb a situation aa to Impart to tbe
United States this preference.
"The above facts demonstrate the inaMlity
of the Klkron Rank to pay her debts, as admit-
ted in the statement; they could not, per sc,
give to the United States the preference con.
tended for. It must, in the language of the
authorities, h« a known and legal insolvency;
the former of which is not admitted, and the
latter could not be predicated of auch a condi-
"Doea the Act of 1829, ch. 170, with the pro-
ceedings consequent thereon, give rise to the
priority contended forf Thie act provided for
the election at the next annual meeting of tbe
stockholders, held in pursuance of their charter,
of two trustees, to settle all the outstanding
debts and credits of tbe bank; and further
provided that they should be elected in the
same manner as the president and directors
have been heretofore elected. By referring to
the charter of the bank, it will be found that
one of its fundamental laws required the presi-
dent and directors to give one month's notice,
in the most public places in the county, and
in some public print in the city of Baltimore,
*of the time and place of holding the f'lOV
election of directors annually; ana it was fur-
thermore, by a supplement to the said charter,
required that the election for directors should
take place on the fourth Monday of May. If
it were conceded to the Legislature that they
posseaaed power to wind up the c
this particular institution by such ar
fundamental changes about to be operated In
its government, that they might have an op-
portunity of protecting their interests by
their pre ne nee, should have been compiled
with in order to give legal effieacy to the acts
done under it. So far, however, from this, we
are informed by the statements that no notice
was given; and that two pcrsone were elected
by a msjority of the stockholder!, on a differ-
ent day from the day of the annual election of
directnrs, as the trustees, who never accepted.
So that the law was tn truth never executed,
but the proceedings held under It were un-
doubtedly inoperative and void, and could
therefore not in any manner have operated as a
general devestment of property, within the
contemplation of the acts of Congresx. aa upon
this ground to have given the United StatM a
prpference; but on the contrary, the charter
stilt thereafter continued to exist, and its affair*
were, or ought to have been rightfully managed
and eontroUed bj It* then directora. who wuuJ*
1*1
Bumiai OoDM or xsa Umm BrAna.
electioD Bhould take place. Although no pri'
orilr tnaj exist on th« part of the United Statu,
it baa been argued that the appointment of re-
nivera by the Circuit Court of the United
tba debt due from the defendant >o under th^
control of that court, aa a court of equit;, that
ll could be reached legally bj no prooeis of
•XMution or attachment. It ia true that monsy
«nd efTecta in the hands of the aBiignee of a
bankrupt, or the trustee of an iniolvent debtor,
cannot be attai^hed ; not only beeaiue auch
Eroperty atanda aaaigned by operation of law,
ut b«CHO«e the allowance of auch attach-
Inenta would utterly defeat the whole policy of
the bankrupt or inaolvent iawa; nor can money
taken by a aheriff in execution, or money paid
into court. Serg. on Attach. 09. Bnt we
ftnprehend that the appointment and bonding
of receivera doe* not work auch diaaUlity.
The property, by the wder, ia not taken under
the protection of the court; and, until, taken
in charge by the rcceivera, Its summary Jnriadic-
110*] tion could not tic tnterpoaed to 'punish
•uch aa might cover it, or portions of it, by
ixeeutlon or attachment. The period when it
might and ought lanlly to be considered aa
under the mantle ot legal protection, ahouid
be the time when a coiut of chancery would
Interpose by attachment, for disturbing or in'
terfering with the poaaassion of the receiver.
"Innocent third peraona might be previously
affected by extending tbia doctrine further. It
haa been argued, and wa think with much force,
that there la and ou^t to be an aualog;^ in this
respect between the law applicable to receivers
and saquestratorai aa regarda the latter, the
Court of King's Bench have decided that
when a sequestration is awarded to collect
money to pay a demand in equity ; if it Is not
executed, that is, if the aequeatratora do not
take poBscBBion, and a judgment creditor takes
out execution, notwithstanding the sequestration
■warded, there may be a levy under the execu-
tion. East's Rep. 9. voL 33G.
"So here, the receivers never obtained poa-
•ession of the credits of the Elkten Bank of
Maryland, Ita booka and papers, or its evideneea
of debt; on the contrary, so far as we are
enabled to collect the fact in this reapect from
the record, they were held adTcricly; the CSr-
cuit Court of the United States giving their
aid and aasiatanoe to the receivers, to enable
them to obtain the poasesaion, vrith what effect
we know not, except that we are left to infer
from the faet of the attachment subsequently
iaausd aoainit the defendant by the United
States, that they never did obtain possession.
Wa are not informed by the record that the re-
erivers aver took any atepa whatever to
asanme control over the debt which the
defendant owed the Elkton Bank; on the
contrary, they take out an attachment in
the name ot the United States, and serve it on
the defendant as garnishee, long after the at-
tachment itsued and served by the pl^ntlff in
this eaaei and. Indeed, the statement admits
that they never attempted to exercise a control
over this debt I^tly, it is urged that the
Jiiilffmeat (rf eondemiiation obtaiiMd aoaioat
by the United BUtes should apmat»m
puost tba recoTBrr by the ri'tntit h
L It is undoubtedlT a hardship on Hi
defendant to be aompellsd twioe t« pay ths
debt, but it must be raoollected that th»
plaintiff had a Prior attachment, which operatej
aa a lien; and it would be a still greater hard,
ahip that such plaintiff should lose his Uca,
thus legally acquired, by the judgment ot a
court in a cause to which he was do pnr^> ssd
of which we have bo evidenoe that ne had ia
manner any notice. If the defoidaot
id to take the proper *steps in the [*lll
jeament in which he was placed to defaid
protect his interests, it is but fair that he
should suffer the oonsequenoes. Had notiM
been given of this attachment by the United
States, the plaintiff might have vindicated hit
rights, and had an opportunity of asserting Ui
anterior lien, rnd of obtaining the decision ot
the Appellate Court, had it become necessary.
Not Is it prescribed why it would not have beM
competent for the defendant, in this conflict «f
claima against him, to have brought the vm-
dieting parties into chancery, where the r^^ta
and priority of each might have been adjoii'
cated without prejudice to him. But, last of
all, would the defendant be entitled to avail
himaelf of the judgment of the United States
recovered against him, since, from the exami-
nation of toe record of that auit, it appeal*
that hia defenae was taken solely on the pica
of nulla bona; a defense which could cer-
tainly have been of no avail, when it appeared
by the answers filed in the interrogatories ti
the United SUtes, that he was indebted to th«
Elkton Bank ot Maryland; although, tn tht
anewen, he adverts to the attachment issued
against him by the Farmers' Bank of Dela-
ware, be has not pleaded such prior attach-
ment as pending against him, whereby bt
could obtain the opinion of the court in relatioa
to its priority. Ln every aspect, therefore, la
which we can view the decision below, we ars
brought to the conclusion that it cannot be aos-
"Jndgment revened, and judgment on tha
case stated for appellant."
The case was argued at the bar by Mr. Mar-
tin and Ur. Butler, Attorney -General, for tht
plaintiff in oror, and by a printed arRumeat
for defendants in error by Mr. John C Gtoor-
Mr. Butler also submitted a printed a
in reply.
For the plaintiff la error the following p
were presented to the court:
let. That, according to a just i
of the acta of Congresa, giving priority to ths
United Statea, in cases where their debtors ate
insolvent, the government waa untitled to b*
paid the debt due to it from the Bank of Elktos
out of the effects ot that institution in prefo'-
eace to any other creditor, and tha plaintiff is
error having paid to the United Statea ths
amount of money in which he waa indebted to
the Bank of Elkton, he was, therefore, acquittsi
from the operation of the attachment sued eat
against him by the Farmers' Bank of Delawart.
*2d. That judgment of condemnation 1*111
having been oMained by the United Stala
against the plaintiff in error, on an attacbn«t
in the Circuit Court for the Mstriet of Mary-
land for the money in which ha stood tnddW
Bkabton ?. Tux Kakmcba' Bank or Dbuwaik.
to tb» Bank of Elkton, uid b« haTing pud thmt
amount to the United St«tci under the authority
of aaid Judgment, it opermtea as a bar to the
recovery aought against him ky th* defeodant
in error.
Sd. That the appointment of receiveTB by
the Circuit Court tio take posBeMioo of the prop-
erty and effects of the Bank of Elkton, u di«-
eloeed by the record, placed the debt due from
the plaintiff in error to that bank in the custody
and under the control of the Circuit Court, as
a court of equity, and that it could not be le-
nity reached by the pTocees of attachment
uaned in tliii case by th« Farmera' Bank of
Ur. Martin, tor the plaintiff's, stated that
this case has been brought up to this court to
■attle principles by which, hereafter, future
rasra may l>e regulated; and thus, although the
amount in controversy is small, the importance
of the principles involved will commend it to
the consideration of the court. After stating
the ease, he proceeded to say that the first
point ia the question of the right of priority of
tlie United States, under the act of Congress,
under the drcumstances which are presented
by the record. According to the received con-
atruetion oi the Act of Congress of 3d March,
17S1, a body politic or corporate is witliin the
meaning of the act.
Ed. The Bank of Elkton haTing become in-
•olTent, the priority of the United States at'
tached; and the proceedings of the Farmers'
Bank of Delaware could not operate against
th* rights of the United States, nor affect the
debt due to the Elkton Bank in the hand* of
George Beaston.
The priority of the United States is fully set-
tled In the caae of The United States v. Fisher,
8 Cranch, 358. In that case It was decided
that the right of the United States to priority
of payment of debta due to her, extends to all
cases where anyone is indebted to the govern-
ment. The same prjncip'e will be found In
Field ▼. The United States, 9 Peters, 182.
Where there has been an open act of fnsol-
-veney, the priority attaches, whether suit is or
ia not instituted by the United States. 1
line's C. a R. 628. This priority may be
anforoed by an action of assumpsit, by a bill in
equity, or by any other legal proceedings.
Ill*] *It has been said, in this case, in the
courts of Maryland, that corporations are not
within the provisions of the act of Congress,
because the persons who compose the corpora-
tion are merged In It. But this is denied, and
tt is nudntained that a corporation Is a person
within the law, and that a corporation is fully
within the meaning and purpose of the law.
Corporations are persons; they are so treated
la all the laws and proceedings relative to tax-
ation. Cooke's Institutes, 697, 7IS. In the
axposition of the Statute of Heni^ V., Lord
OoVe esysi Every corporation is included in
tba term 'inhabitant," although the corpora-
tlca Is not named. In CowpePs Rep. 79, the
Court of Ring's Bench decided that a corpora-
Uon comes in under tiM term "inhabitant."
So, also, in the ease of The Bank of the United
States T. Deveaox, • Cranch, 61, it was held
that a corporation composed of oititens of one
Stats may iim a eitina of another State, in
tha eoujta of ths Uaitsd States. Tte same
principle will be found In the o^nloo of Ur.
Justice Thompson, when in the Supreme Court
of ^'^-.v York, in the case of The People t.
The Utica Ins. Company, 16 Johns. Rep. 3S1.
A corporation bemg within the act of Con-
Ktss, if before the attachment of the Bank of
Uivaxe the Etkton Bank had become in-
solvent, the priority of the United States had
attached, what was the situation of the Elkton
Bank; what are the evidences of its insolvency!
This is ehovm by the return of nulla bona, to
the attachment against the bank; by the inabil-
ity of the bank to discharge its debts. In fact,
there was no bankiug operations by the bank
after 1829; no meeting of the stockholders,
and all its operations as a bank were arrested,
because of its entire and absolute inability to
pay its debts.
In 1829 the corporation was at Annapolis,
askingfor a special actof insolvency; and on this
application of the bsnk, the Legislature passed
an act which authorized the appointment of
trustees, who were to take possession of the
whole property and effects of the bank, and
wind up its whole concemK. Maryland Laws
of 1B2S, ch. 170, Harris's Compilation. These
acta combined, demonstrate, fully and unques-
tionably, the insolvency of the bank.
It is contended, 1st. That if there wss do
legal transfer of the effects of the bank to
trustees, In eoRsequence of tin irregularity of
the proceedings of the stockholders, or from
any other cause, this court will pronounce the
bank to have been insolvent, because of its sit-
uation, and from its various acts, and the dr-
cumstances of the case.
*2d. That If it is necessary there 1*114
should be an assignment to constitute a legal
insolvency, and thus to bring the case within
the provisions of the act of Congress, the cor-
poration was completely denuded of all Its
property; and the Act of the Legislature of
Maryland of 1829 was an aseigument of all ths
property of the bank. Cited, Prince v. Bart-
lett, 8 Cranch, 431. The acceptance of the
assignment is not necessary to show the in-
solvency of the assignor. In the Court of Ap-
Els it was conceded that if trustees of the
k had been appointed, the Insolvency of
the bank would have been established. The
irregularity of their appointment can have no
influence on the question. It is the condition
of the bank, and its application to the Legis-
lature, followed by toe proceedings of the
stockholders appointing the trustees, although
not according to the requirements of the law,
which make out the insolvency.
The appointment of receivers by the Circuit
Court of the United States for the Maryland
District was also a Judicial assignment of all
the effects of the bank. If a statutory assign-
ment, or an Individual assignment, gives the
preference to the United States, why should
not a judicial assignment have the same opera-
tion T As to the effects of the appointment of
receivers, cited, 3 Wendell's Rep. 1.
The party in this case, paid the money In
obedience to the judgment of a court of comps-
tent jurisdiction. This is a full protection for
the payment, and no other court can question
the propriety of the judgment of the Circuit
Court of Maryland, or of the acta of the de-
fendant ia ohedienea to that judgment. Cited,
laai
114
SnpaxME CouBT 0
■ Johns. Rep. 101; 2 East, 2M. It was said
In the Court of Appeals that the Bank of Di-1-
Kware might have appealed from the Circuit
Court of the United ^^late^ to this court. But
there is error in this assertion. The sum in
euDtrovers}' was too small for a writ of error,
or for an appeal.
It i* claimed that receiven having been ap-
Dointed by the Circuit Court in 1830, and they
Iwving entered on their duty and assumed the
trusts delegated to them, all the property and
effects of tlie bank went into their hands, and
no part of the same was aftern-ards liable to
•ttaehraent. The attachment by the Farmcre'
Bftnk of Dela«are was after the appointment
of receivers in the Circuit Court. The re-
ceivers were appointed in June; the attachment
was not laid until September.
It has been said that the receivers did not
Uke poascssion of the debt due by Beaston, the
plaintiff in error; that they could have no mnn-
ual poseeseion of thia debt. As to what an aC-
tl6"] tachment is, and 'what prop.rty ciin
be attached, cited, 1 Penna. Kcp. 117; 1 Dall.
8; 3 Binney'a Rep. 204; 2 Haddock's Chan
eery, 187, 264,
Mr. Butler, upon the question whether
"person" in the act of Con press pave u
priority to the United Stales, said (list whiTi^vei-
person" is used in a statute, with a qpiiJity
attached to it which does not app y to a om-
poratlon, the court will construe the stntute ko
u to comprehend perncins. if the spirit a"'l
purpose of the law will be acoomp Ifthcd by
their doing so. Wherever the words of a
statute can be extended to artifl':iul persons,
•nd where the acts done or to be done by cor-
porations are within the np'rit of the law, thev
will be extended to comprehend them. In all
these cases, and wherever it is necesaary, the
court will look at the composition of the cor-
Persons, in law, are artificial as well as nat-
ural persons; and in the act of Congress there
la nothing which is not equally applicable to
both. The object of the statute was to in-
clude all persona. Its purpose was to secure
dabts due to it from whomsoever might be-
come indebted to the United States, and a cor-
poration Is certainly within the general sense
of the statute.
Aa to the insolvency of the Rlkton Bank, It
w*s plain and manifest at the time of the pro-
ceedings by the United Btatea against Mr.
Beaston. The act of Congress applies to a
caM where the Insolvency is manifest. What
can manifest the insolvency of the bank more
than what is shown in the record T The bank
had ceased its operations as a bank; the atock-
holders had ceased to appoint directors to man-
age Ita concerns. An application was made in
182S to the Legialature of Maryland for the ap-
pointment of aasignees, or trustees, who were to
take possession of all its property; and thissp-
Slication waa a full manifestation of the total
laolvency of the institution,
Hr- Gtoome, for the defendanta in error.
At April Term, 1830, of Cecil County Court,
tha Farmers' Bank of Delaware obtained a
I'udgment againat the Bikton Bank of Mary-
and. On the 24th day of September follow-
ing it had an attachment issued on this judg-
mat, in conformity with the lawa of Marv-
i-HK UniTEu tiraiu. Mi
land, ms, ch. 40, sec T, and attached In tti
hands of Beaston, the pl^ntiff In error, Un
sum of five hundred dnltare, etc., due to tb
said ICIkton Uank on a judgment at September
Ti'tni, 1828, of the same court. Beaalou reaiil-
ed this attachment, and a judgment wai itv-
dered *in hie favor against the Farm- (*1II
era' Bank at April Term, 1834, on the tttts-
ment Of facta to be found cm the 8th, tith, and
10th pages of the printed record. From tUt
judgment an appeal waa prayed to the Omrt
of Appi'als of Maryland, and there it was it-
versed. Subscqiiently, by a writ of error, it
has been brought up to this court; and tin
quention for decision is, whether, at the time
of issuing and levying the said attachment,
there was any existing lieu on behalf of the
United States, or of any other creditor of the
Elkton Bank, on the specific debt attached; v
nny other circumstance or relation between the
Klkton Bank and any of ita creditors, either
then e^cisting or subsequently arising, whkb
could overreach the attachment and defeat ill
operation.
It cannot be contended that the record dil-
doses any lien existing at that time. The jndg-
nient rendered in favor of the United Statu
against the Elkton Bank could not operate aa a
lien on any debt due to the Elkton Bank.
Neither was ony such lirn created by the Bsri
facias issued on that judgment to April Tern,
1fl30. It had already, on the 8th day of Ai^il.
If30, been returned with an indorsement o(
iiTiMa bona, by the marshal; and waa nodet
no circumstances the proper process of esees-
tion to reach the credits of the Elkton Bank.
could of course have no effect upon the
debt due from Beaston. Nor could any prior
ity (as will appear hereafter to be claimed on
behalf of the United States) operate aa a tiea
on this debt This court has held that no liea
is created in favor of the United Statea by tl»
law of priority. The United States ». Fisfaerat
al. 2 Cranch, 358; Conard v. The Atlantic Insffl-
anee Company, 1 Peters, 440; The United SUtsi
V. Hooe et al, 3 Cranch, 73.
It is said, however, that although no aetnil
lien may tiave existed in favor of the Unit*!
States, or any other creditor of the BIkt«a
Bank, yet the United States were, by reason*!
their judgment, and other circumstances statal
in the record in this cause, entitled to n priv-
ity of payment out of the funds of the ElktN
Bank; and this priority, exiating at the tiM
when the attachment was iasued on the jodf-
ment of the Farmers' Bank, superseded asd
defeated that attachment. Supposing it to ex-
ist in this case, "what, then, is the nature ef
the priority thus limited jnd established ii
favor of the United StaUaT Is it a right whki
Bupprsedea and oyerrulci the assignment of tkr
debtor as to any property which afterwards the
United States may elect to take in executiOb
so as to prevent such property from paaaiitr
by virtue of such assignment, to the asaignMSt
*0r ia it a mere right of prior payment [•lil
out of the general funds of the debtor in Ih*
hands of the aasigneesT We are of opinio
(said this court) that it clearly falls withm tki
latter description, and that the debt* due t« ttt
United States are to be satisfied b^ the aw|n-
ees, who are rendered personally liable. If tkiy
«nit to diacharn lueb dnbtn." Conard t. n*
PMon !>•
1838
Bbasi
' Ua:<k op Delaware.
Ill
Ailmntic loaiirance Companj, 1 Petcm't Rep.
t39. AgKin, Id the cn^ of The United Stati-a
r. Fisber et •). Ihii court held Ihat no lien is
created by this law of priority; no bon» llJt
tnnafer of property in the ordinnry rourse of
buiineBB it overruled. It is only a priority of
payment, which, under dilferent modiliiatinna,
IB • regulation in common use. See 1 Telers's
R^. 440. It does not partake even of Ihe
character of ft lien on the propurry of piililic
debtora. Tbe United !^tates v. llooe et al. 3
Cranch, 73. If, then, debta due to thp United
SUtea constitute no Iten on the prop 'rly of the
debtor, and have merely prefrrenci: of pay-
ment out of the debtor's fuiidd in the liands
of uaigneea, how can the existence of giiih
debts operute to defeat Buy lien 8uti*i(iii(.-n(ly
acquired by any other bona fide ctEditur; or, in
other words, how can a debt due to the Unit id
BtAtrs, and merely entitled to a priority of pay-
ment out of tbe funds of the Elkton Dank iu
tba bands of its aaslfniccs. be held to defeat n
lien on a apeeillc credit, ncquijeJ in favor of
the Farmers' Hank by a(tacli;iunt! It is ft sole-
cism to SBV that such a debt, or siieii priority ia
no lien, nnd yet give to it all Iha properties,
attributes and effect of a lien. In this manner
did this court reason when it said that "it a
debtor of tbe UniUd .States, who makes n bona
fide convej-ance of part of liis property for the
security of a creditor, ia within tiie art whiili
gives a preference to the government, tlien
would 111- prefercuee )>e in the nature of a lien
from tbo instant be became indebted."
Cranch, "3, But it will be recoIlceteJ that th
fund atfaclted in this case was not clinlleia o
land in tlie actual cnatody and under the im
mediate control of the Etktoi Bank, but :
chose in action, a debt, due from a tbird person
to tbat institution, under a judgment which, at
the time of the attachment, had never been
paid, and whieb required the use of coei
measures to reduce it into poaaesiiion. It w
seem to be carrting the prini'iple of priority
very far to npply it to such a, case. Tbe tbird
person cnni;ot Dc presumed or expected to
know the condition of hie creditor's affairs,
whether he be indebted to tiie United States or
not, and whether, if indebted, the United Statea
havo any riglit to priority of payment out of
nit eatate; and if be did know such to be the
118*1 'condition of his creditor, he is in
wfse responsible for the proper application of
hia creditor's property. The United Stales have
their remrdy agninst the assignees, and not
Bftain-it the propertv of their debtor. Their
priority never BtlBelies on lands or goods, ae
the landa or goods of the debtor; it attaches on
the fund, and not on the specific property.
It doea not op^'mte to prevent the passing of
th« property either lo assignees in bankruptcy.
or to aaaiKiiees under h convevsnre, or to excc-
ut«ra and adminifltralors. It ainoiinta only tc
» right to previous payment out of the fund
then in the nsnde uf others. Such was thi
gument of counsel, and such appears to be tiie
effect of the decision in the ease of Co.iard
The Atlantic Insurance Company.
So far the argument has pioeeeiled on tl
hypothesis that, in this ca?e. a priority undi
the acta of Consresa in favor of the United
.States did exist ; but it ia denied that the United
States ever had such priority of payment againat
lie KIkton Bank. The priority claimed ia
liriied from certain acts of Congress. 'These
everal Bets are the Act of 3iat July, 1789, ch.
i. sec. 21, the Act of the 4th August, 1790, ch.
15. sec. 4.1, the Act of 1792, ch. 27, see. 18,
he Act of 3d March, ITD7, ch. 74, see. 6, and
the Act of 2d March, 1799, ch. 128, sec 05.
All of these acts, e):cept that of 1707, conUned
the priority of tbe United States to custom-
house bonds, and bonds taken under theCollco-
tioii Act; and some of Ihem placed the auretj
in such bonds, who paid the debt, on the same
footing in respect to priority as tbe United
States. It was the Act of 1707 that went farther,
und gave a preference to tbe United States ia
all eases whatsoever, whoever might be the
ilebtor, or however he might be indebted; when
tile debtor became insolvent, or when, after hia
death, his estate in the handa of his eseeutora
or administrators should be insufficient for the
payment of his debts; and it provided that Uis
priority should be deemed to extend as well ta
iuBcii in which the debtor, not having sufficient
property to pay all hia debts, shall have made
a voluntary assignment thereof for tbe benefit
of his creditors; or in which the eatate and
irfTecta of an absconding, concealed, or abaent
debtor shall have been attached by process of
law, as to cases in which on act of legal bank-
riipir; shall have been committed. In giving
a construction to these statutes, this court has
held that they only apply to two general classes
of casus, viz.: a living insolvent, having an
assignee, and a dead insolvent represented by
executors or administrators (Conard v. Nicoll,
4 J'eters's Rep. 308) ; that the priority, ae against
living debtors, 'only existed where tbe {*11*
debtor had become actunlly and notoriously in-
solvent, and, being unable to pay his debta.haa
made a voluntary assignment of all his prop-
erty; or, having absconded, or absented him-
self, hia property has been attached by process
of law. Sue The United Slates v. Hooe, S
Cranch, 73; 1 Peters, 439. The words "bank-
ruptcy," and "insolvency," mentioned in the
statutes, are uaed as synonymous terms, and
must be understood to apply to cases of insol-
vency, apeeilied by the Legislature, and to
mean a legal and known insolvency, mani-
fested by some notorious act of the debtor,
pursuant to law (Prince v. Bartlett, 8 Cranch,
431 ) : or where, by operation of law, the
property of tbe debtor is taken out of bis bands
to be distributed bv others (The United States r.
Clarke, 1 Paine's C. C. R. <129; and see Tbetus-
son V, Smith, 2 Wbent. Rep. 306): or where
the property is in the bands of assignees, not
by voluntary aasignment only, but by assign-
ment made in virtue of any State bankrupt
law, or, possibly, of any bankrupt law of the
United States, which mi(;ht thereafter be passed.
Conard v. Nicoll. 4 Pclers's Rep. 308. It is
not a mere inability of the debtor to pay all hie
debts, but that inability must be manifested in
one of the three modes pointed out in tbe ex-
planatory clause of the section. 1 Peters's Kep
439. From the several statutes and decisions
cited, it appenrs that the United States, as
creditors, have a preference in the following
1. Where the debtor ia deed. leaving an in.
sulDciency of assets in the handa of bis exee-
utors or administrators to pay liis debts.
itat
Sdpuhe Codbt or thk UitrncD Sum.
2. When hiB effecte have been Btt&ched by
procesK of taw, IB an kbsent, concealed, or ab-
Bconding debtor.
ment of all bis property for the benefit
erediton.
Did the Blkton Bank, at the time issuing
the attachment in favor of the Farmen' Bank,
ooDie within either one of theee four claSBeel
1. It was certainly at that time an eiistinK
inatitution, tn the full posaession of it* chartered
rights and powers, and could not be even aa-
•imilated to the condition of a deceased debtor.
The failure of th" itockhoidera of the Elk ton
Bank to elect ofGcera in 1830, and aince, even
with their continued omiBaion to carry on their
usual banking operations, could be regarded in
the worst aspect aa only cause of forreiture, and
is not, per se, an actual forfeiture. A corpora-
120*] tion may 'forfeit its charter, under cer-
tain circumstances, by non user or misuser of
it* franehiBesi but such forfeiture can only be
enforced by judicial proceedingi inatituted for
that purpose, at the instance of the govern-
ment; and no cause of forfeiture can be taken
mdvantage of, collaterally or incidentally.
indeed, in any manner, until the default baa
been judicially ascertained and declared, by
■uit instituted on behalf of the State for that
purpose. The Chesapeake and Ohio Canal
Company v. Baltimore and Ohio Rail Road
Company, 4 Gill & Johns. R. 107; Trustees
of Vernon Society T. Hill, 6 Cow. 23; Ring v.
Amery, 2 T. R. 515. Besides, it is the gen-
eral principle of law that it is incident to alt
eorporations that in caae of a failure to elect at
the time appointed, the old officers shall
main in office. Stra. 625; 10 Mod. 146. One
of the supplements to the charter of the Elkton
Bank contains a provision to the same effect.
Iaws of Uaryiand, 1815, ch. 148; see 6 Gill A
Johns. R. 230. But this point is too eel f evi-
dent to require further diacuaaion.
2. There has been no attachment of the ef-
fects of the Elkton Bank as an absent, con-
cealed, or absconding debtor- The attachment
of the Farmers' Bank, in this case, ia a process
In the nature of an execution; is, as such, au-
thorized by the laws of Maryland (1715, ch.
40, sec. 7), and is not predicated of the absence
or concealment of the debtor, the Elkton Bank.
S. Here was no known and legal solvency;
none admitted in the statement of facts, and
none arising by inference therefrom, but a mere
inability to pay debts, which ii not the insol-
vency contemplated by the acts of Congress, and
does not, per se, give to the United States the
(■reference claimed. 1 Petera's R. 439.
nsolvenry mentioned in the statutes refers to
insolvency under the State law, and perhaps
to a bankrupt law of the United States, when
one should pass. 4 Petera's R. 307, 308; Prince
T. Bartlett, S Cranch R. 431. And a corpora
tion ia not within the State laws on that aub
feet. The State of Maryland v. The Bank of
Maryland, B Gill &. Johna. 221, being incspa
ble of imprisonment, or of availing itself of tlip
benefit of their proviaiona.
4. Here waa no voluntary aisignment by the
Elkton Bank for tbe benefit of ita ereditorB.
10S4
No auch aasignmeot is azpresaly admitted, aad
none such can be implied. The act of the Leg-
islature of Maryland (I82S, ch. 170) cannot be
deemed to be such an aaaignment. By that aet,
the stockholders of the Elkton ^nk wen
sly authorized, at their next annual meet-
ing, held is pursuance of their charter, to elect
'two persons a* trustees, who should [*1S1
have power to adjust and settle all the out-
standing debts and credits of said bank; wha
should be privileged to sue, and be liable t«
be sued, and be elected in the same manner as
the president and director* had been, and ia
their place and st«ad. A charter being a con-
tract within tbe purview of the ConatitutioH,
which cannot be destroyed, modified, altered,
or impaired, without the aaaent of the corpora-
tors; this act, unless accepted and executed by
stockholders of the Elkton Bank, ia Um
ner and on the terms prescribed by it, ia a
: dead letter. It can make no differenea
that it was passed on the application of the acv-
I who were the acting preaideat and
the acting directora of the bank, for it ia not
conceded that they acted officially; and if they
did, they acted without authority, and in the
eierciae of powera that did not legitimately be-
long to their office.
And it is contended, too, that on princiida
the acceptance must be the act of each corpora
tor; for if it be a contract at all, it must be *
contract with each. If not, and a majority of
irporators can control the objects and pur-
poses of the charter, then, after the creation of
a charter for one purpose, and the contributioa
of the requisite funds for that purpose, a i
have been subscribed by many, and apply
them to a use opposed to their wishes, and de-
structive to their interests. At alt events, it most
be accepted and executed, either by a majority,
or by the whole of the corporators; and m
either case, the acceptance must be made in
accordance with the act. The annual meeting
of the stockholders had been fixed by law
(1815, ch. 148) to lake place on the fourth Mon-
day of May in every year; and the charter re-
quired the president and directors to give on*
month's notice, in the most public places in tba
county, and in some public print in the city of
Baltimore, of tbe time and place of holding th«
election of directors annually. Laws of Mary-
land, 1810, ch. 51, see. 27, sub sec. 3. Now.
the fourth Monday of May, 1S30 («fUr tbt
proper preliminary notice had been given), was
the day when the next annual meeting would
be held, in pursuance of the charter; and if any
inference ol the acceptance or execution of tha
.^ct of IHSO can be drawn from the conduct of
the stock hold era, in the absence of any expre**
resolution to that effect, it should be derived
from their election of truateea, in conformity
with that act on that day. On that day, how-
ever, no such election was attempted; but on a
different day, viz., *on the third Mon- ["111
day of May, without any previous notice what-
ever, and without any authority, two peraoM
were elected by a majority of the stockbolden
as trustees; but these persons never accnted
The act of 1829 waa, therefore, never rcgiuarij
accepted and never executed, and alt tbe pi*'
eeediniti under It being nnauthoriaed, were mw
IBM BBAflnm V. Tn f au
wiirily Told, nod eould not operate as • gen-
rral deveBtment of tbe property of the Elkton
Bank, within the contemplation of the actB of
Congrera, lo m to giv« the United Statei the
preference over other creditor*.
The effect! of tbe Elkton Bank never went
into the hands of dn j persona for distribution
the trustees elect refused the office, and then
was, therefore, no assignee to whom tbey wen
Htignad, or who could be made liable to the
Dnited States, The contingency whereon the
tranifer was to be made under the act, viz., the
■ubstltution of trustee* in the "place and stead"
of directors, did not happen. The transfer was
therefore never consummated. An act of bank-
niptcT, or what would be auch under the bank-
rupt laws of England, ia oot sufficient to give
rise to the preference of the United States, from
the moment of its commission; for there is no
assignee who ii first to satisfy the claim of the
United States out of the estate of the debtor,
under the penalty of satisfying it out of his own
estate. 4 Peters, 308. It is important, then,
that there should be an existing asBignee, hav-
ins the property in his hands for distribution;
indeed, it is eBsential that there should be. In
the case of Brent v. The Banic of Washington,
the plaintiiTs testator had executed an assign-
inent to certain persons of all his estate, for the
Byment of the claims of the government, and
I other creditors, as far north as the estate
would answer. The assignees refused to accept
the assignment or to act under it; and for this
reason, the Attorney- General admitted, and this
court decided, the deed to be inopcrativa.
Petera's R. B07, 810, 811. The refusal of the
trustees to act, therefore, apart from the irregu-
larity of their appointment, would of Itself de-
feat any claim of priority on the part of the
United SUtea in this case- But it ia evident
from a perusal of the Act of 1829 that It waa
never intendrd or understood by tbe Legisla-
ture or the Elkton Bank as a voluntary assign-
medt of property for the benefit of creditors, in
the meaning of the acts of Congress. It was
merely a proceeding preparatory to the final
adjustment of the alTairs of the Elkton Bank,
on the expiration of its charter, in a few years
thereafter. The trustees were to have the priv-
193*] ilege *of suing, and to be liable t« be
■ued, in the same manner as the president and
directors. Tbey were to be elected in the same
manner in which they had been elected, and in
their place and stead. It was nothing more
than the substitution of two men for twelve,
in the administration of the bank — of trustees
for directors. The act docs not contemplate
the immediate adjustment of the concerns of the
inatttntion: nor does it, in terns, restrict the
tmateea from carrying on the usual operations
of tha bank; but, on the contrary, it expressly
directs that they shall be elected in the place
and stead of the president and directors; and as
if their duties were not Intended to expire but
with the charter itself, it requires them, at every
annual meeting thereafter, to exhibit to the
atockholders a Just and true statement of all
tbeir doing* aa such trustee*. It made tliem
reaponaiblc to the stockholdera directly, as tbe
preatdent and directors were, and not to the
creditota, and 1« predicated of no insolvency,
■etuml or technical. And that the passage of
thla act, and the •obaeqnent irregular proceed-
• Ij. ad.
' Bahk or Deawabb.
Ki
Inga under It, wrought no real change In tlta
situation of the elTwU of tbe Sikton Bank, ia
manifest from the view aftarwards taken of ilia
■ubjeet by the govemmant itaelf, when It at*
tached the sama det>t due from Bcaaton, iu hi*
hands as gaml^ee of the prasideat and direct-
or* of Um BIkton Bank: thereby elearly show*
ing that it never regarded the property of th*
Elkton Bank, or this debt at least, aa having
ever passed by any assignment, actual or con-
structive, out of the poaseision of that institu-
tion, for the benefit of creditor*, within tlia
meaning of the acts of Congress-
That this construction of tha Act of 182S,
and this conjecture of its scope and object ara
correct, is further confirmed nv the fact that
the power and authority of the Legislature wera
invoked. The consent of that body was abso-
lutely necessary to vest the administration of
tbe alTairs of the bank is two instead of twelva
persona, as the charter expressly confided ita
management to the latter number of person*;
wherea«, it will not be denied that, if the ob-
ject had been merely to make an assignment of
property for the benefit of creditors, in tha
meaning of tbe act* of Congress, the corpora-
tion had thi* power in its own hands, without
the sanction or Intervention of the Legisiaturaj
and eould have effected its purposes at once, by
land T. The Bank of Maryland, 6 Oill ft Johns.
220.
There i* notUng in tbe charter of the Elkton
Bank to reitrain It from *o doing. If tbta pow-
er be denied to a corporation, then a corpora-
tion *can never be brought within the [*1S4
operation of the statutes giving priority. It li
aot within either one of the enumerated claesea
of eases. It cannot be a deceased debtor, with
an insufficiency of assets in tlie hands of ex-
ecutota or administrators. Its effei^ts cannot be
attached as those of an absent, concealed, or ab-
sconding debtor; for such a state of thing*
cannot be possibly predicated of a corporation.
It cannot be a technical insolvent, under tbe
State laws; andif It cannot transfer Its proper-
ty to trustees for the psyment of its debta, .
without the intervention and permission of
another. It cannot make a voluntary assign-
ment. Indeed, it may be greatly doubted, from
the phraseology of the Act of 17S7, whether It
eluded, it must be observed that up to this
point this case is considered as analogous to the
case of Prince v- Bartlett, 8 Cranch, 431.
There, the effects of an inaolvent debtor, duly
attached by an individual creditor. In June,
were considered not to be liable to the claim
of the United Stats* on a eustom-house bond
given prior to the attachment, and put in suit
in August following. And to the facts and
principles of law in Prince v. Bartlett, the par-
ticular attention of this court is asked.
But it is contended that the appointment of
'eceivers by the Circuit Court wrought some
ihange In the condition, either of the parties in
this suit or of tbe debt due from Bi^aston, so aa
to defeat the attachment of the Fanners' Bank,
:baequently issued. It cannot be regarded a*
L asugnment under the statutes, for at lea*t it
waa not voluntary. The appointment of re-
U l«ll
tu
UuPBEHE Comr or ihk Uhitb) Sutm.
Mivera is a dJBcretion&rj power, toinetimes cz-
•rci»ed by a court ol cha.i:cery >.■ ft measure
of securitj against waste, misniHiiagemeiit, etc.,
and is provision*.! Dnly for the more speed;
gettinji in of a party's estate, and aecunnK it
lor tbe bentflt of such person aa appears en-
titled, and does not affect the right. 2 Madd.
Oian. Prac. 187, 188. It transfers no title.
It does not even alter the possession of the es-
tate in the person who shall be found entitled
at the time the receiver was appointed, so aa to
S re vent the statute of limitations running on
uring the right in dispute. 2 Madd. 138.
The appointment of receivers, therefore, in this
case, did not affect the right of the parties to
this or any other suit, or change the condition
of the debt ; unless it had th« ^ect to place it
under the immediate control of the Circuit
Court as a court of equity, and thus protect it
from all process of execution or attachment.
It U said, in support of this position, that money
135*] held by a person as ^asaignec of a baak-
rupt, or trustee of an insolvent, cannot be at-
tached for a debt due by the bankrupt or in-
solvent at the suit of any particular creditor.
Sergeant on Attachment, 8^. But tbe reason
ia obvious. An assignment in law or in fact
devests the bsnkrupt or Insolvent of the prop-
erty, end transfers it to the assignee in trust
for the creditors in general; so that the bank-
rupt has no interest to attach. And besides, to
permit an attachment in favor of a particular
creditor to lie, would be subversive of the
whole policy of the bankrupt and insolvent
laws, under which the assignment is intended
to operate for the benefit ot all creditors. And
so with regard to property or ntonej' taken by
a sheriff in execution, or money paid into
court, it is considered as already in the custody
of the law. But the appointment of receivers
is, per Be, no transfer or assignment of the prop
erty into their hands; nor does it bring the
property, until taken into the actual possession
of the receivers, under the protection of tbe
court, BO that the court can punish for any in-
tarferenre with it by attachment or otherwise.
Indeed, this position is admitted and assumed
by tbe United States, and, it may be added, by
the judges of the Circuit Court themselves, in
the proceedings which were had in that court
to recover the judgment in favor of the United
States against tbe Elkton Bank.
The debt from Beaston was not regarded in
those proceedings aa actually or constructively
in the possession, or under the control of the
receivers, or under the immediate protection of
the court; else why was an attachment, similar
in all ita features to the attachment of the
Farmers' Bank, issued in the same manner, for
the same debt, and against the same person!
Why waa not that process, or some other,
directed against the receivers, if the sppoint.
ment of them operated as a transfer or assign,
ment of this debt! Why, too, if after the ap-
Kintmpnt of them, any intermeddling by the
rmers' Bnnk with the property or credits of
the Elkton Bank was a contempt of the circuit
court, did the judges of that samecourt,sitting
■s a court of law, authorize (without requiring
leave to be asked) similar proceedings in favor
of the United StatesT Besides, it is not under-
stood how Bea«ton can avail himself of any act
of contempt on the part of the Farmers' Bank
toward* the Qrenit Court, as a defense to u
action at law against him, when no interferoKs
on the part of that court has been attempted or
sought. Until the cose of Angell v. tiniiLU set-
tled the question, it si^eniB to have been a mat-
ter of doubt whether an ejectment might sot
be brought ,_ without leave of court, 'for ['IH
lands even in the actual posaesaion of a receiver,
under the appointnieot of the court. 9 Vesey,
Jun„ R. 336. There the court determined the
question in the negative, by regarding the
case of receivers as analogous to that of sequea.
tratorsi stating that it was clearly a contempt
of court to disturb sequestrators ui poaaesaion.
Now, if the analogy between sequestra tors and
receivers be so slrikinc as to compel the court
to determine the law in one res^pect as to tbe
one, by ascertaining how it stood in relation to
the other, there can be no reason for siippoeing
that it would not apply the same principles of
law to both, in tvery case where the analogy
could be traced. In the same case of Angell t.
Smith, the Chancellor said that the Court of
King's Bench had decided that where a sequea-
f the sequestrators do not take pnasi-sston,
aim a judgment creditor takes out execution,
notwitUstandiug the sequcfitration awarded,
there may be a levy under the execution; and
hunce 1 think tiiat it may with reason be in-
ferred that if a receiver does not take possession,
and an execution or attachment issues at the
of a creditor, there may be a levy. Here
admitted that up to the time of the decision
of the Supreme Court, which was long subae-
quent to the date of the attat-hmcnt in favor of
the I-'armers' Bank, the receivers nuvcr Iiad col-
lected or received, or by any procfss of law at-
tcuipled to collect or receive, the debt due
from Beaston. This decision, in the caae of
Angell V. Smith, and the rcnsouiiig of tbe court,
deemed conclusive <m this point of the case.
But in the la^t place, it ia urged that tbe
judgment of cuiiJ em nation against Beaston in
favor of the United Stales (which was rendered
a long time after the date and service of the at-
tachment in favor of thi; Farmers' Bank), and
the subsequent payment thereof by Bob stem,
should operate as a bar to tlie recovery of the
Fanners' Bank in this case. To the suit or
proceedings on which this judgment of con.
demnation was rendered, tbe Farmers' Bank
s not a parly or privy. It is ujinra-ssarj to
iltiply authorities to show thul no one is
bound by a judgment unless he be a party to
the suit, or in privity with the party. 1
Wheat. 6; 7 Cranch. 271. If the other points
in this cause ciuinol avail Beaston as mottrra of
defenae, tbe rendition ot the judgment of oon-
ilemnation cannot; as it wilt then be evident
that if he had resorted to this court as an ap-
pellate court, to review the decision of the Or-
iiit Court, or had afforded the Farmers' Bank
(by giving notice of the attachment of [*IS1
the United States) an opportunity of vindicat-
ing its rights by so doing, he would have e«<
caped the conseq.iences of that judgment, aa
the facts inxj>lved in that case are the Bame
which exist in this. In the concluding lao-
guase of tlie opinion of the Court of Appeal*
of Maryland, ''it is imdoiibleilly a hsnlsliip ob
the defendant (BiOstonl to bi- (■.riip-iU'd twi-*
P<^l«n< IS'
\m
BsurKHf T. ^tsB Taiiou' Bakk or Dh^wabt
ItT
to pay t.lie name debt. But It must be recol-
lectrd lliat tbe plaintiff (the Fcrmera' Bank)
hRd % prior •Itnchment, which operate* as a
lien: snil it would be a still greater hardship
tbst sucb plaintiff should lose his lien thus
legally acquired by the judgment of a court in
ft cause to which he was no party, and of which
ws have no evidence that he had, in any man-
ner, any notice. If the defendant failed to take
the proper steps, In the predicament in which
ha was plncod, to defend and protect his inter-
ests, it IS but fair that he should suffer the con-
■eqnences. Hud notice been given of this at-
tachment bf the United States, the plaintiff
tnight have vindicated his rights, and had an
opportunity of asserting his anterior lien; and
of obtaining the decision of the Appellate
Court had it became necessary. Nor is it per-
ceived why it would not have been competent
for the defendant, in this conflict of claims
■gainst him, to have brought the eonfltetiug
parties into chancery; where the rights and
priority of each might have been adjudicated
without prejudice to him. But last ot all,
would the defendant be entitled to avail him-
delf of tlie judgment of the United States, re-
(^vered against him; since, from the ezamina-
rion of the record of that suit, it appear* that
hia defense was talten lotely on the plea of
nulla bona; a defense which could certainly
have been of no avail, when it appeared by the
answers filed to the interrogatories of the
United States that he was Indebted to the Etk-
ton Bank of Maryland; and although In the
answers, he adverts to the attachment issued
against him bv the Farmers' Bank of Delaware,
he has not plead such attachment as pending
SLgainBt him, whereby ha could obtain the opin-
ion of the court in relation to its priority. In
every aspect, therefore, in which we can view
the decision below (Cecil County Court), we
are brought to the conclusion that it cannot be
auBtained," In conclusion, it is added that it
■ppearr clearly that this opinion of the court
of app»>lB of Maryland must be euatained by
this coi.rt throughout.
Mr. Butler, Attorney -General, In reply:
Most of the views presented by the learned
138*] counsel for the defendant *in error have
be«a Bufficiently met in the oral arguments at
the bar; to which, and especially to the argu-
ment of the associate counsel, ths court are
respectfully referred.
In addition to the reasoning and authorities
then submitted, the following remarks are
crfTered:
1. It is conceded that no lien on the property
of the debtor is created by the statutes, until
the priority given by them actually attaches.
If, therefore, before the right of priority ac-
crues, the debtor make* a bona fide conveyance
of his estate to a third person, or mortgages it
to secure a debt; or if his property be seized
under an execution, or b« attached in cases
where such a remedy is pven; the United
States, though the fscts necessary to entitle
them to a preference should afterwards occur,
will have no claim on the property so sold,
mortgaged, levied on, or attached.
Even when the priority of the United States
actually attached; there is, strictly speak-
ten, as the oaae may be; but only a elalm on
the fund in their hands, and various remedJea
against them for ita faithful application. That
is to say, the executors, etc., may sell the prop-
erty and transfer a valid title, and the pur-
chaser will hold it free from any lien in favor
of the United States, who cannot specifically re-
claim the property from the purchaser, but
must look to the executor, etc. But the right
of the United States to be first paid, when the
facts have occurred which give them a priority,
is a right which will be protected, even before
the debtor's property has been converted into
money, hy hts executors, etc., in the same way.
and to the same extent, as the right of any
other cestui que trust. Thus, if the executors,
etc.. be insolvent, and be about to waste the
Eroperty or misapply its proceeds, receivers may
> appointed, at the instance of the United
Rtstes; and they will be entitled to such other
preventive remedies as may be necessary to ren-
der their priority effectual.
After the priority has attached, the debtor's
property is Incapable of being levied on or at-
tached by any other creditor, in any auch way
as to defeat that priority. If this be not so,
the statutes giving the preference would be uae-
lesa; and that It is so is necessarily implied, in
every case on the subject decidt^d by the courts.
The foregoing observations, it is believed,
dispose of the introductory remarks of the de-
fendant's argument.
*2. The opposing argument denies [*12t
that the United States ever had any right to
priority of payment against the Elkton Bank.
It is contended, on the part of the United
States, that before the issuing of the attachment
in favor of the Farmcra' Bank (Sept. ^th,
1830), the United States had acquired, as
against the Elkton Bank, a right to priority of
payment out of its edects; not by the execution
of a voluntary aaaignment of all ita property,
but by its insolvency, and its commission ot an
act of legal bankruptcy, within the mean-
ing ot the statutes in question. The whole
argument under the fourth proposition, that
there was here no voluntary assignment by the
Elkton Bank for the benefit of iis creditors, may
therefore be laid out of tlie case.
Our positions are that the Elkton Bank was
capable of becoming insolvent, and committing
acts of legal bankruptcy, within the true intent
and meaning of the acts of Congreas; and that
it did so as early as December, 1820, when it
npplied to the Legislature of Maryland for a
!<pecial law to wind up its sffairs; especially
lis this application had been preceded by a
non user of the chief franchises of the eorpota-
tion from Msrch, 1829, and the recovery of a
judgment against them in favor of the United
States. This is not the case of mere inability
to pay; it is a case of utter, acknowledged, and
notorious insolvency; and these acta are acts of
legal bankruptcy. In this view, it is of no mo-
ment whatever that the trustees, under Xh»
peclal law, were not duly appointed, or did not
iccept; though, if the priority had been claimed
•lere. as in Brent v. The Bank of Washington,
10 Peters, B7B. on the ground of a voluntary
>!Blgnment, those pc^nta would have been
It the Elkton Bank did not become inaolvent
and commit acta of legal bankruptcy ia Decern*
lOtt
m
Omat c
ber, IK!; 7«t whan to th« dreumrtvicw which
had Hum Mcurred we uld the appointment of
recoiven in April, 1830, bj the Circuit Court,
•nd the proceeding of the atockholden in M>7i
1B30; suretf we bsve an accumuUtioD ol noto-
riout and decisive facts, exhibiting. In the full-
«t manner, and in pursuance of law, the utter
iDSolvencj of the corporation.
When tha Insolvancy or acta of bankruptcy
required hj the statutes have actually occurred,
the priority eo inatanti attaches,' although some
tlm« may elapse before a trustee be formally
' ■ ■ Ever
in posscBsion of bia propei
eoraei, as to such debt or property, the tniatee
of the United States from the moment he has
notice of tlieir priority. Should he actually
ISO*] *pay over the debt, or deliver the prop-
erty to another creditor, pursuant to the judg-
ment of a State court, before he has notiee of
the claim of the United States, this would un-
doubtedly protect him. But nothing of tbia
sort occurred in the present case. Beaaton, be-
fore the Judgment recovered against him bv
the defendant in error, had received, througii
the summons of the United SUtes, under the
Act of 1818 which was aerved on him on the
10th of October, 1831 1 legal notice of the claim
of the United States; and though be pleaded
the pendency of the attachment in favor of the
defendant in error, this plea was justly regard-
ed as unavailing. Now, it will appear by the
record that, although Beaaton was aerved with
that attachment in Srptamber, 1830, be was not
required to plead to it until April Term, 1834;
when a case stated was agreed on by the parties,
containing, among other things, all the pro-
ceedings in favor of the United States, together
with the fact that the debt had been paid to
them, agreeably to the judgment of condcmna-
Uon.
The dreumstances here stated entirely dia-
tinguish tbia caae from Prince v. Bortlett, 8
Crancb, 431, ao much relied on by the other
•Uc. There the jtroperty of tlie debtor was
attached by hia pnvate creditorn, on the 4th of
June, 1810. He wai then bound to the United
Btatea in certain diitv bonda, which, however,
were not then payable; nor did they become
payable until Auguat, in which month they
were put In auit. Executions in favor of the
United Statea were issued on the IBth of Septem-
ber following, when it jipprared that the debtor
was insolvent; but na legal act of bankruptcy
hod been committed even then. In tbia state
of things, and eapecially as the debt to the
United States did not b»>otne due and payable
until after the service of the attachment; it was
very properly decided that the United Slates
were not entitled to the priority claimed by
D of the court (pagea433,
tliem. But the opini
bankruptcy been committed {as ia contended
the caae here) before the service of the attach-
ment, the priority would have attached, and
would not have been defeated by the service
of the attachment.
3. In answer to the remarks relative to the
effect of the appointment of receivers, and on
the Judgment of condemnation, the learned
■rguinent of the counsel wbn opened the cause,
an his second and third ptdnts, b referred to.
«01S
m Viaim Suim. IW
•Hr. Justice irZiBley delivered the [*ll)
opinion of the court:
Thia is a writ of error to the judgment at tk
Court of Appeals for the Eastern Shore of
Maryland, reveraing the Judgment of the Cecil
County Court.
The defendant in error sued out and press
euted a writ of attachment llerl facias agaiut
the plaintiff in error, in said County Court,
upon a judgment previously obtained againit
the Elkton Bank of Maryland, upon which the
sheriff returned that he had altKclied goods and
chattels, rights and credits, of the presidentaail
directora of said Elkton Bank, in the haadi
of the plaintiff iit error, the sum of five buB-
dred dollara.
Upon the trial of the cause, the follomng
agreed cose was submitted by the parties to the
court for its judgment: "It is a^i>cd in thii
caae that in 1828 the United States instituted a
suit against the Elkton Bank in the Qrcuit
Court of the United States, at the December
Term, 18SB; a verdict and judgment were reo-
dered In the aaid auit, in favor of the United
Statea, for twenty-one thousand two bundrad
dollara, on which judgment a fieri facing wii
iaaued at April Term, 1830, and returned nulla
bona: but it U admitted that at llie time the
aaid president and directors of tlie Elkton Bonk
had a large landed estate, which liaa been sinrc
sold and applied to aatiafy, in part, the aaid
judgment; which landed estate, tof^tlier with
all other effects or property belonging to tbr
bank,' would not enable the bank to pay iti
debt^ and that the same property and iffMl
are not suflicicnt to pay the aaid debt ttue to tht
United SUtea, and it is admitted that the bank
was then unable to pay ila debts. An appeal
was prosecuted, but no nppcat bund given, and
the judgment was ailirmrd in the Suprenc
Court at the January Term, 1832. At the April
Term, 1830. of the Circuit Court, a bill in rquitj
was filed against the aaid bank at the suit of Ihf
United States, and Nathaniel Williams and
John Glenn were appoirtpU. by an order of
t, reccivtTs, with aiitliurity to lake pnsse*-
of the property of anid hank, to dispone of
lame, mid to collect all debt 3 due to it, as ap-
pears by the record marked "E.\liil>it A"; wbick
ceivers gave bond on the 14tb day of June.
30, and proceedfd loesccute their trust. Tb«
lords marked e.iliibit A and exhibit B, hete-
th filed, are to he considered as pnrt of thb
case stated. At December aession, IB29, appli-
cation was made to the Legislature of Mary-
land, by the several persons who were the act-
ing president and directors of the said bank,
for the act which was passed at that sesiiwi
(ch. 170), which, with all other acts 'rt- ('IS)
latinf; to aaid bank, are to be considered as port
of this statement. A meeting of the atoct-
holdera convened on the ITth dsy of May, ISSb
which was the third Monday of aaid nonlt.
but without the notice mentioned and rei]iiirt^
the act incorporating the bank, and ita wp-
piementi; and at the aaid meeting a majarit;
of the stockholdfis appointed two truatcca, ia
conformity with the provisions of aaid act, wbo
declined accepting; and no trusteea hare ev«t
since been appointed, nor has there since ben
an annual, or other meeting of the storkho'der*,
M ao election of directors; nor have there b«M
Peteis 11-
Ills
any banking opeimtioiw carried on b^ any per-
•oni profrsslng to be the corporation of tbc
Elkton Bank. Bince March, IS29.
"At September Tenn, 1828, th« Elkton Bank
obtained a judgment against George Beaaton
for the aum which is attached id thic suit ; which
at the time of isBUing and service of tbia attach
ment, had not been paid by Beaston. At April
Tenn, 1830, the Fanner*' Bank of Delaware
obtained, in Cecil County Court, a judgment
Bgainit the president and director! of tbe Elk-
ton Bank for Ave tbouBand dollars, with intetoBt
from Btb Decembrr, 1826, till paid, and cobmi
and before tbB appointment and bonding of the
receivers, as aforesaid, and on the 24th Sep-
tember, IS30, upon that judgment iuued thia
attachment, and attached, in the hands of oaid
Beaston, the sum of five hundred dollars ; and
after thia attachment was issued and served,
and after the affirmation of the judgment of the
Circuit Court by the Supreme Court, attach-
ment was iaaued by the United States, and the
other proceedings had, as appears from the rec-
ord marked "B;" and Beaston had actually paid
and satisfled to the United States the amount
for which judgment of condemnation vras ren
dered against him In the Circuit Court. It if
admitted that up to tbe time of the decision in
the Supreme Court, the said receivers had never
collected or received, or by any process of law
attempted to collect or receive, the said debt,
attached in this case. The question for the opin-
ion of the court is, whether the plaintiff can
sustain the present attachment." Whereupon
the court rendered judgment in favor of the de-
fendant, and, upon an appeal taken by the
plaintiff, the Court of Appeals reversed tbe
judgment of the County Court.
In the ar^mcnt here, the counsel for the
^aintilf in error made the following points:
First, the Elkton Bank of Maryland is a person,
within the meaning of the Act of Congress of
the 3d of March. 17S7, giving priority of pay-
ment to the United States; second, by a [voper
construction of that act, the plaintiff in error
lis*] having paid to the 'United SUtes the
amount which he owed to tbe Elkton Bank, is
not liable to the defendant in error; third, the
appointment of receivers by the Circuit Court,
with power to tske possession of the property
of the bank and to sell and dispose of the same,
and to collect all debts due to it, was such an
Asaignment of its property as to give the right
of priority to the United States; fourth, the
election of trusteea by the stockholders of the
bank under the act of the Maryland L^slature,
waa also snch an assignment of the property of
the bank as to give the right of priority to the
United States; and for tbeae reasons, they con-
tended, the judgment of the Court of Appeals
tnif^t to be reversed.
The counsel for the defendant in error re-
sisted all the grounds assumed by the counsel
for the plaintiff in error; and insisted that, by
m lair construction of tbe fifth section of the
act, and the former adjudications of this court,
tbe nriority therein provided for did not attach
to tne fund belonging to the Elkton Bank, in
the bands of the plaintiff fn error.
The section referred to Is in these words:
"That when any revenue officer, or other per-
•oo hereafter becoming Indebted to the United
St«te«, by bond or otherwise, shall become In-
I' Bamk or DnAWAK.
Itt
solvent, or where the estate of any deceased
person, in tbe hands of executors or adminis-
trator*, shall be insufficient to pay all the debts
due from the deceased, the debt due to the
United States shall be first satisfied; and the
priority, hereby established, shall be deemed to
extend aa well to cases in which a debtor, not
having sufficient property to pay all his debts,
shall make a voluntary assignment thereof, or
iu which the efi^ects of an abwwnding, concealed,
or absent debtor, shall be attach^ by proa-
ess of law, as to cases in which an act of legal
bankruptcy shall be committed."
From the language employed In this section,
and tbe construction given to it from time to
time by this court, these rules ars clearly es-
tablished: first, that no lien is created by the
statute; second, tbe priority established can
never attach while the debtor continues the
third, no evidence can be received of the in-
solvency of the debtor until he has been de-
vested of bis property in one of the modes
stated in the section; and, fourth, whenever he
is thus devested of his property, the person who
becomes invested with the title is thereby mads
a trustee for the United States, and is bound to
pay their debt first out of the proceeds of the
debtor's 'property. The United States v. ['184
Iilsber, 2 Cranch, 358; The United States v.
Hooe et al. 3 Cranch, 73; Prince v. Bartlett, 8
Cranch, 431; Conard v. The Atlantic Insurance
Company, 1 Peters's Rep. 439; Conard v. Nicoll,
4 Peters's Rep. 308; Brent v. The Bank of
Washington, 10 Peters's Rep- SM.
If the Elkton Bank of Maryland is not a per-
son, within the meaning of the act, no law of
Congress was drawn in question in the court
below; and, consequentty, the question of prior-
ity did not arise- That court having decided
upon the legal effect of the several acts done
by the Circuit Court of tbe United States, and
also upon the legal effect of the election ot
trustees by the stockholders of tbe bank, under
the act of Maryland; which several acts were
relied upon b]r the plaintiff in error as being an
assignment of all the property of the bank, or
05 constituting an act equivalent to such an
assignment; the question whether the bank iaa
person, within the meaning of the act of Con-
■TTpsi, was necessarily decided. It lies at the
foundation of the whole proceeding; and if we
noyt decide that the bank is not a person, with-
in the meaning of the act, under the 25th sec-
tion of the JudiHnry Act of 17BB it will be our
duty to dismis'i the writ of error for want of
jurisdiction. In<:lce v. Coolidgc. 2 Wheat. 363;
Miller V. Nicholls. 4 Wheat. 311; Crowcll v,
Randell, and Shoemaker v. Randell, 10 Peters's
Rep. 36S; M'Kinney ct at. v. Carroll, decided
at the present term of this court. We must,
thercfoi-e. inquire whether the bank is a
person, within the meaning of the act of Con-
gress.
All debtors to the United States, whatever
their chsracter, and by whatever mode bound,
may be Fairly included within the language
used in the fifth section of the act of Congress.
Anif it i> manifest that Congress intended to
giv<' prlnrily of pnyiiirnl to tbe United States
over all other creditors, in the cases stated
tfaerein- It therefore liu upon those wboctaim
1029 I
IM
SuPBBKK Com* «r not tJinm Ogtrm.
ueinptlon from the oper«tton of the fltntut«, to
■how that the}' are not within its provision*.
No authority has bcc^n adduced to show that a
corporation may not, in the construelion of atat'
utea, be regarded aa a natural peraon; while, on
the contrary, authoritiea have been cited which
•how that corporations are to be deemed and
considered as peraoni, when the drcumstancea
In which they are placed are identical with
those of natural persons, expressly included ii
such statutes. Aa this statute has reference to
the public good, it aught to be liberally
stnied. The United States v. The State Bank
of North Carolina, S Petcrs's Rep. 29. At this
question has been fully decided by this court,
other authorities need not be cited.
JB5»] 'In the KBse of The United States v.
Amedy, 11 Wheat. 392, which was a prosecution
for destroying a vessel at sea with intent to
prejudice the underwriters, The Boston Insur-
ance Company, the section of the statute under
which he was prosecuted subjected to the pea
t,\tj of death any person, being owner, or part
owner, who should burn, destroy, etc., any ship
or vessel, with intent to prejudice any person
or persona, that had underwritten, or should
underwrite any policy of insurance, etc. Thi
oourt, in delivering the opinion, says; "An
other question, not raised in the court below,
has been rained here, and upon which, as it is
vital to the prosecution, we feel ourselves called
upon to e.^prcss an opinion. It is that a corpo-
ration is not a person within the meaning of the
act of CongresB. If there had been any settled
course of decisions on this subject in criminal
cases, we should certainly, in a prosecution of
this nature, yield to such a construction of the
act. But there is no such course of decision.
The mischief inteniii-d Co be reached by the
statute is the same whether it respects private
or corporate persons," After citing 2 Inat.
736, and some other authorities, the opinion
proceeds thus: "Finding, therefore, no author-
ity at common law which overthrows the doc-
trine of Lord Coke, we do not think that we are
entitled to engraft any such constructive ex-
ception upon the text of the statute." This
case, we think, is decisive of the question. And
the fact that the Elkton Bank cannot be
brought within all the predicaments stated in
the statute proves nothing, if it can be brought
within any one or more of them.
The record in this case abundantly proves
that a bsnk may become largely indebted to the
United States, and not have property sulHciont
to pay all its debts. If to these facts were
superadded the fart of a voluntary assignment
by the hank, of all its property, in any mode
authorized by law, the right of the United
States to priority would be clearly established.
This brings us to the consideration of the
second point raised by the ptBintiff in error.
The agreed case shows that the attaphment fieri
facias, upon the judgment of the defendant in
error against the Elkton Bonk, issued on the
24th day of September, 1830, and attached in
the hands of the plaintiff in error the sum in
controversy. The attachment in favor of the
United States did not issue until the 8th day of
July, isni. And the plaintiff in error, in
answering the interrogatories propoimded to
bin) in that proceeding, stated that in October,
Ib tbe year 1830, an attachment, at the suit of
tha Farmers' 'Bank of Delawaro, f*lll
against faim, aa gamishee of the BIkton Bui
of Maryland, was served on him, retnrnable tA
Cecil County Court, where said attachment tu
still depending. The money thus attacheil ii
the hands of the plaintiff in error, by )^
procesH, before the issuing of the attachment ii
behalf of the United States, waa bound for Ot
debt for wUcb it was legally attaobed, bf •
writ, which is in the nature of an exrcutloai
and the right of a private creditor, thai ac-
quired, could not be defeated by the prorts
subsequently issued on the part of tbe Unilfd
States. Prince v. Bartlett, 8 Cranch, 431.
We are next to inquira into tbe le^ effnt
of tbe appointment of receivers by the Oreoit
Court. Without deciding whether a Qreuil
Court of the United States has authority, ui s
case like this, to appoint receivers, with powci
(o take possession of all the property of i
debtor of the United States; it is suffirient to
say, in this eaae, that it does not appear that
the power conferred on ths receiver* waa era
executed; and if it bad been, it would not han
been a transfer and possession of the propert;
of the Elkton Bank, within the meaning of thi
act of Congress; and, therefore, the prioritj
could not have attached to the fund* in tbm
. The only remaining queation ia, whether tke
election of trusteea by the stockholdera of thi
Elkton Bank, under the statute of Marylsid.
waa such an assignment of all the properly o(
the hank aa would entitle the United SUte* te
priority of payment out of its funds. In the
investigation of this branch of the subject, it ii
not necessary to inquire into the regularity «f
the election of the trusteea. Suppose it to haw
been perfectly regular, in all respects, did it *s
operate as to devest the Elkton Bank of it*
property? No one can be devested of his prop
crty by any mode of conveyance, statutory at
otherwise, unless at the same time, and by the
me conveyance, the grantee becomes iovestd
th the title. As the trustees refused to aee^
e trust, none nas created: and the elertioa
thereby became inoperative and void, and tbe
property remained in the bank. Brent v. TV
iJsnk of Washington, 10 Peters'a R. 611;
Hunter r. The United SUtes, 5 Petera'a R. 171
The moment the transfer of property takM
lace, under the statute, the person lafcin|: tt,
bethel by voluntary assignment or by opeia-
on of law, becomes bound to the UniU'
States for the faithful performance of thetiML
Conard v. The Atlantic Insurance Conipaaf,
Peters's R. 439. As the title of the property .
of the bank did not pass to the trustee* ij
-tue of the election, there was no fund t» j
hieh the priority of the United ['IS' I
Slates could attach; there was no one anther*
or bound to execute a trust under Ui
ute; therefore, no letial bar was npp'i«ed >*
the right of recovery and satisfaction of thr
debt due by tbe Elkton Bank to " '
rpon the whole, It Is the opinion of lhei*iirt
ere is no error la the judgment of the Coot
of Appeals.
Mr. Justice Story, dissenting.
I dissent from so much of the optnlrni Mn-
ered by the court tn this case •• decides that •
Bkmtoii t. Tn Fauieu' Bans or DnAVAn.
•onorktlcm U a penon wltbln tba mdh of the
M MctloB of th« Act of 17B7, eh. 74. I have
BO doubt wbktBoever tb^t fn a legal And le<;h-
Ble«l MBM, • eorpOTatioD it a person; and that
imder Uutt denominAtion, it may be included
wlUn tb« prorUmiB of a itAtuts, where the
lftign»g» Mid praviiiona And objecta of the atat-
nU eqUAlly applj^ to corpontions and to private
pancnu. Mf disaent la founded upon this
ground, thAt neither the languAge nor the pro-
Tlalona of the 6th aectioD of the Act of 1T0T,
cb. 74, Are ApplicAbla to tlw caae of oorpora-
tiona, but tbat thejr applT •zolualTely to private
peraona, and eaimot, without Ti<dmee to the
wordi and the objects of that act, be atrained
■o Aa to reAch corporatjoDa. I think thAt the
penona Intended hj the act Are aueh persona
onl; BB may be brought witbin eaeh of the
predicAmenta atAted in the act.
The language of the Bth aeetion U, "That
where any revenue officer or other person here-
after becoming indebted to the United States
by bond or otherwiae shall baeome inaolvent, or
wlwra the estate of taj deeeaaed perami, in the
luwda of eseeutora or adminlstratora, sbali be
inaafident to pay all the debts due from the
deeeaaed, the debt due to the United SUtea
^a1] be flnt aatiafled; and the priority hereby
eatAMiahed ahall be deemed to eitend aa well
to cmaea in which A debtor, not having auffl-
eleat property to pay ^ hia debts, ■hall make
a nrinntary aaaignment thereof, or in which
the elTecta of an absconding, concealed, or ab-
•ent debtor, shall be AttAched iy process of Iaw,
as to eases in which sn Act of legAl bAaliruptey
ahAll b« committed."
Now, the statute manifestly in tbie proviaion
eontemplAtefl two clAasea of eaaea — inaoivency
inter vi*os, and insolvency upon the desth of a
debtor. It is plain that the last elaaa cannot
bare been Intended to include corporAtions; for
if it were to be aupposed thAt they could be
"deoeAaad ddttora," yet by no reasonable use of
iMiguAge CAD it be said tliat they can hAve
ISB*] executors or Adminlatrators. 'or estate
in the handa of exeentora or administrators.
Tbe other class of cases ia of insolvency inter
wivtM. Which are these? first, cases In which
« deUor not having aufficlent property to pay
mil Us debts, shAlt niAke a voluntary assign-
ment thereof I that ia, of all bis property. It
cwtainly is practicable fur a corporation to be
In this predicament, if by its charter and con-
stitution It ia capAble of making auch a general
aaaignment. But I must say that, ind^peri'li'Tit
of some special and positive Iaw, or provision
in Ita charter to aueh an effect, I do eiceeding-
]▼ donbt if Any corporAtion, at leaat without
tne express assent of all the corporators, can
rigfttfiUly dispose of aU its property by such a
8«B«ral assignment, so as to render Itself in-
catpaUs in future of performing any of its
ooarporate functions. ThAt woiUd be to Bay
tbat a majority of a corporation had a right to
•xtlnguiah the corporation by Ita own will and
at ita own pleasure. I doubt that ri^ht, at least,
tmleSB under voiy special circumatances.
Second, casea of an Absconding, concealed, or
atwent debtor. Now, It is plain that in no juet
aanae can a corporation be brought within the
terms of this predicAment. Third, caeca of legal
batBknipt^. Such eases do not exist in relation
to Mrperations. Tba fsnnal bAnkrupt Iaws
of England have never been beld to » .. J to
corporations; neither have thegenerAl ij:i iTent
Inws of the several State* In this Union, jvhars
they e^iat, ever been extended to eorporatims.
Now, my argument is this— and I wish to put it
into the most precise and concise form— that
the 6th section of the act of 1707, ch. 74, was
never intended to apply to any debtors or per-
sona who were not and might not ba within
every one of tbe classes of prediramenta above
stated. Corporations cannot be within three
out of the four predicaments above stated, and
therefore I hold that the Legislature never
could hare intended to embrace tbem within
the provisiona of the section.
I dissent from the opinion upon this point,
upon another and independent ground, and
that 1* that the opinion ia wholly extrajudictAl,
and unauthoriMd by law. ThAt the q^eation
wAB not made or decided in ths court below ;
and that unleaa it was so made and decided, it
cannot be re-exAmined in this court. This ia a
writ of error, not to a circuit court of the Unit'
ed Statea, but to the highest court of a State;
and brought here for our revieion under tbe
26th aectton of tbe Judiciary Act of 1789, eh.
20. That aaction ezpreaaly declarea that upon
auch a writ of error "no other error shall be
assigned or regarded aa a ground of reveraal in
Any Biteh cAse ab aforeaaid, than auch aa ap-
pears on tbe face of thi rceord, and ImmeiU-
ately 'reapecta the before-mentioned ['IS*
questions of the validity or construction of the
said Constitution, treatlea, atatutca, eommlB-
aiona or authoritiea in dispute." The preced-
ing part of the aame section autborisae the writ
of error only when the dedaion of the State
Court has been sgainst the validity or construc-
tion of the Conatitution, treatlcR, atatutes, com-
misaions or aullmritiea atated in the section.
So thAt it Is manifest, and so has been the uni-
form eourae of this court, that no question nol
made ia the court below, on which ita iudg
ment ultimately turned, can be made, or la re
examinable here. I have already said that h
is apparent upon thia record that no auch point
arose, or decision wsa made In the Court ot
Appeals of Maryland; and, therefore, I cannot
but consider the deciBioo here pronounced upon
it, as coram non judice, and in no juat aenae ob-
ligatory upon us, or upon our successors.
I know that my brother, Mr. Justice Bar-
bour, held the same opinion as I do on this
qiiestion. Hia departure from the court before
• hp opinion In this case was pronounced, does
not entitle me to apeak further in his behalf.
Ht. Justice Baldwin concurred with Mr.
Justice Story in the opinion delivered tnr him,
and with the majority of the court in affirming
the judgment of the Court of Appeals.
This cause CAme on to be beard on the trsn-
script of the record from the Court of Appeals
for the Eoatcm Shore of Maryland, and was
argued by counsel ; on consideration whereof,
it Is now here adjudged and ordered by this
court that the jtidgment of the said Court of
Apppala in this cause be, and tbe same la here-
by affirmed with costs.
SttnKui OoittT OP Tin URimi St^tb*.
r dismiBBed for irregularit7— pi«c-
In certain proemdloEs tot Ibe ula ot propfrtr
morl|[>reil, the widow and eblldren of thi ikceiwd
axtaer ol tbe propertr nere made defondnnti. The
Dlalrlct Couit ot Louisiana nre a Judgment In
taror of tbe ulitntllTB. The widow was entitled to
her eommuull; tu tbe prop?rlj mortgaged, and
bad takea the properly at Ihe appralMment and
entlmatlon. The writ at error Co the District Court
or Louisiana wag Ismied In tbe name ot "The helri
_ NIrh
J ptslntlir.
bad n,.
Tbe rule of court la that wbare there la a anb-
■tantlsl defect Id the appeal or writ of error, the
objection mn; lie taken at anj time before the
S dement ; on the giouDd that tbe eaae la not legai-
before the court, and that It baa not Jurladle-
in to trir It.
Mr. Butlei, for the defendanta, moved to dis-
I tlie
t of (
1. Because no persona are named in the writ
as plnintilfti, but they are described, generally,
BB '-The Heira of Nicholas Wilaon."
Z. That the widov of Nicholaa Wilson, who
U tntervated in the suit, did not join in the ap-
plication for the wrEt of error.
The motion wka opposed hj ^t. Coze and
Mr. WebsteT.
The p
tn the District Court for the Eastern DtBtrict ot
Louisiana, for the purpose of procuring the !< tile
of certain property mortgaged by Nicholaa
Wilson in his lifetime to The Life and Fire In-
aurance Company of New York. The widow
and children of the deceaBed were made de-
fendanta Id the petition, and the judgment in
the District Court waa in favor of the plain-
tiffa. Tho widow, it appears, was entitled to
141'] her community *in the property mort'
gaged, and had taken the property of the de-
ceased, as she had a right to do, at thi- ap-
prniRement und estimation.
Tbe counsel for the defendant in error haa
moved to diamiHs this enw. lat. Becauae noper-
eona are named aa plaJntitTa in the writ of^ er-
ror, but they are descrilied generally in the writ
•s "The Heirs of Nicholas Wilson." Sd. If
this general description is siifiieient, yet it ap-
pears by the petition for the writ, which is re-
ferred to in the appeal bond, that tha widow
did not join in the npplication for the writ of
error; and as the judgment against the defend-
anta wns a joint one, they muat all join tn a
writ of error, unlcaa there ia a aummons and
We think the writ of error muat be dismissed
on both grounds, end that the points raised
have alrc^y been decided hj this court.
In the ease of 8 Petera, S26, tbe writ of tnsi
issued In the name of Mary Deneale, Gxeentrlj
of lirorge Oeneele and others. It was dit-
miased on the motion of the defendants in er
ror, and the court Bsid. "the present writ of er-
ror is brought by Mar; Deneale 'and others' aa
Elaintiffs; but who the others are cannot be
Qown to the court, for their names are not
given in the writ of error, as they ought to be.
Mary Deneale cannot atone maintain a writ ot
error on thiB Judgment; but all the parties must
be Joined and their names set forth, in order
that the court may proceed to give a proper
judgment in the caae. In the case now before
tbe court, the name of no one of the partiei is
set forth in the writ of error, and u'vonling to
the rule laid down in the caae n-fuired to, this
writ of error cannot be maintained.
The second objection above slated falls with-
in the principle decided in Owings et aJ. w. Eia-
cannon, 7 Petera, 309. In that case a joint de-
cree waa passed by tbe Circuit Court for the
Diatrict of Kentucky against sii defendanta.
An appeal waa prayed generally from tlie de-
cree; but in the appeal bond, it was stated that
two had prayed an appeal, and notliing was
there said of the others. The court considered
the atatement in the bond aa explaining the
general entry granting the appeal, and dis-
missed tile case becatlse all of the defendant*
in the court t>elow had not joined in it-
In tbe case before the court, if the omissioa
to name the plaintiffs in error in the writ was
not regarded aa an insuperable objection, and
if tiie general deBcriptiou of "The Ileira of
Nicholas Wilson" could be supposed under tbe
laws of Louisiana to include his widow, yet the
statement in the petition for tlie writ of em>r
which ia referred *to in the bond, [*l-ll
would explain the general description in the
writ, and bring this case within the principle
decided in Owings et al. v. Kincnnnon.
In both of the cases referred (o, it nppean
that the motions to dismiaa were not mnde at
the first term, or at the time ot spgi.nrnnce ia
this court; but each of the cases hml l>een de-
pending hers two years before the nintion wai
made. The rule of this court therefore is that
where there is a aubstantial defect in the ap-
peal, or writ of error, the objection may h*
taken at any time before judgment, on the
ground that tbe case ia not legally beforv nt,
and that we bare not jurisdiction to try it.
Hr. Justice Baldwin diaaentad-
On connideration of the motion mad« in tUl
cause by Mr. Butler to dismiss this caae for ii^
regularity, on the ground that the writ of «T«r
does not set forth the names of all the partiea
and of the argument* of cmmwl tbercupon had,
as well in support of as against the mntion; it
is now here ordered and adjudged by this comi
that this writ of error to the District Court of
the United States for the Eastern District *t
Louisiana be, and the same la hereby diamisaA
and that it be to oertiawl to the aaid Dietiiit
Court.
^ncjIKT BT ^1. V. XlIC l'.\
> ST.)m.
U>
!«•■] 'EDWARD SARCIIET at kI, Appd-
THE OKITED STATES.
(ksM ai law 011I7 brought from Qrcult Conrt
bj writ of arroT — in mmi At law removed
from District to Qrcuit Court, judgmuit of
latter court floaL
detcndinl ; who (ficrcupon prosecuted ■ writ ol ..
rar to Ibe Circuit Court ror the Soutbarn Dl*trlct
at N(W York, where tbe Judaiaeiit or tbe District
CoDrt was lOlriiied. The defcadaat tbeo tppealed
to tbe Supccme Court. Held, thnt esses at Uw
caD ODlf b« brought from the Circuit Court In writ
of arror, sad csnnot be brouEhl by appeal. '
eases at li«. reujoTed team tha Dlitrfct to
Circuit Court, Ibe Judimient of tbe "■ ■ "
of ailmlraltr sod i
It I
s JiulsdlctloD.
ON appeal from the Cireidt Court of the
Unftnl States from tka CSreuit Court for
th« Southern Circuit of New York.
Hr. BntUr, the Attorney -General, moved to
diamiss the ^pptml on two grouodi.
1. That this waa originally a proceeding at
Isw on a bond for duties in the District Court
of New York for tha Southern DJatrict, and
waa, after a judgment of that court for the
Dnited States, taken 1^ a writ of error to the
Circuit Court for the Southern Circuit, by tha
defendant; where the judgment of the District
Cmirt waa affirmed. The Judgment of the
Circuit Conrt is final in auch a esse.
E. This ia a proceeding at law, and the de-
fendant haa teought the case from the Circuit
Court b; an appeal, and not by • writ of error.
Mr. Butler cited The United Statea v. Good-
win, 7 Cranch, 108; 7 Cranch, 287i S Wheat.
MS, etc.
Hr. Saichet opposed tbe motion In peraon.
aua. » DalL ITl) 2 Wheat. »9.
Ur. Chief Juatiee Taney delivered the opin-
ion of the court!
In this case an action waa brought by
the United Statea a^inat Edward Eorvhet
and othera in the Diatnct Court for tbe South-
em Diatrict of New York, upon a bond for
■lutiee charged by the collector upon certain
Iron imported into the United Statea. The duties
144*] 'claimed were contested by the defend-
nnta upon the ground that iit» of the descrip-
tion imported waa not by law chargeable with
that duty, and that the bond waa therefore im-
Mopprly taken. Tbe Judgment in the Diatrict
Court waa against tbe deAndanta, and they re-
mored it, by writ of error, to the Circuit Court
for the Southern Distriot of New York, in the
Second Circuit, where the Judgment of the
District Court was affirmed, and the ease is
now brought here by appeal from the judgment
<rf the CSrcult Omirt.
The Attomey-General has moved to dismiss
tbe ease for want of Jurisdiction in this court
and we think the appeal cannot be sustained.
It has bem repeatedly determined tliat, under
the acta of Oot^esa regulating; the appellate
Jniadietion of tUa court from the circuit
Marts, esse* moM be brongjit here by writ of
• la ML
error, and cannot be brought here by sppoaL
And as thia was % suit at law on a bond. It
could not, under any circunis1iini.'e,3, legally
come before us on appeal, but must come up
by writ of error, in order to give us jurisdic-
tion to try it.
There is also another objection equally fatal
to this proceeding. In cases at law removed
from the Watrict Court to the Circuit Ccurt,
the judgment of the Circuit Court is flnal be-
tween the parties. It is otherwise in cnsea in
eijuity, and of admiralty and maritime jurisJIe-
tion, and although the reason for this distinction
may not be entirely obvioua, yet It is our duty
to conform to tbe provisions of the law; and
this court have repeatedly deeided that, in civil
cases at law, the judgment of the Circuit Court
is final where the case is remuved by writ of
error from the Diatrict Court to the Qrcult
Court. The point waa fully conaidtred and
decided in the case of The United Stales v.
Goodwin, 7 Cranch, 108, and tbe opinion there
given has been since reaffirmed in several cases.
7 Cranch, 287; 2 Wheat. 248, 305. The ques-
tion must be regarded as too well settled to be
now open lor argument, and as this court
would not have jurisdiction, in any form of
proceeding, to review the judgment given In
this case by the Circuit Court; it would be evi-
dently improper to iicar an argument on the
questions di'cided there, or to express any opin-
ion concerning tl.om.
The appeal ta therefore dismissed.
John LLOYD, Defcndsnt in Error.
Grantor of annuities competent witnf«8 to
prove usury after transfer of Interest In prop'
erty charged.
Tcyed all bis ^t
■•-- — lalti. in
t of the E
ntor of annntt7 b; dped baa een-
reat Id tbe property cbarced wllb
1 an alleantlOD of usury In the
" ■ ' fd" n-ade. he m"*
to the propsrtT tt -
Ing blmselt of all Interesl arislUE out of Ibe ortC'
lual Bgieement, Bnd ts relenned frorD hl-i drhfs 6j
them. SDd la not liable to the costs
The di'clslon la 1 feters'a Circuit
801 (WllUnsB V. CooMoua), where
._ J to coDStlCiite blm
cittd Id the arei
would bold out
perjury, snd we . .
principle or aathorlty.
The i<
mpflen
riles
it sustained eltbtr hj
IN error to the Circuit Court of the UnitH
SUtes for the County of Washington In the
Diatrict of Columbia.
lis case was before the court at the Jan
uary Term, 1630 (4 Peters, 205). end again at
January Term, 1835 [9 Pefcre. 4m. It now
came up on a writ of error, prosi-cii'pd bv the
plaintiff in the arcuit Court. Tie q<i(><tion« i>i
volved in the esse when It was before the roiirl
1830 and 183.S. and al'o in this cn<e. arv
stated In the opinion of the court. The com-
petency of Jonathan Scholfleld. who was ex-
lOSS
u«
Stmna Coifr or tu Vmm StATXS.
ftmined U a witneaa for th« defendant, ww
onJy question in thii writ of error.
The cause was argiied hj Mr. Jonea and Mr.
Com for the plaintiff in error, and Mr. Key
tnd Mr. Swann for the defendant.
For the plaintiff in error the fallowing caaei
were cited: Starkie's Evidence, 93, 04, 292;
Phillips' Ev. eh. 5, sec. 4, p. 74; 7 East, 678;
1 Maule k, Selwyn, esfli 10 Bast, 395; 6 Bam-
well k CrEBSvrell, IBS.
For the dofendsnt, were cited, Wlllings v
Consequa, 1 Peters's C. C. R. 301 ; 1 RandoTph't
Rep. 235; 0 Veaey, Jr., 647; 1 Term Htp, 162;
T Crani-h, 271; 1 Wheat. IBO; 1 Wheat. 60;
2 Starkie'e Ev. ISG; 1 Mumford's Rep. 398;
3 Call's Rep. 372; 6 Wendell's Rep. 416.
148*1 'Mt. Justice IPLean delivered the
opinion of the court:
This is the third time that this case has been
brought before the court by writ of error to the
Qrcuit Court of the District of Columbia.
The flrst decision is reported in 4 Peters, 205,
and the second in 9 Peters, 418.
The controiersy arose out of a certain deed
executed by Jonathan Seholfleld and wife tc
Willism S. Moore, sil of the town of Alexan-
dria, in the District of Columbia. For the con-
sideration of Ave thousand dollars, ScholHeld
and wife conveyed to Moore, his heirs a
assigns, forever, one certain annuity or rent
Ave hundred dollars, to be issuing out of, and
charged upon a lot of ground and four brick
tenements, etc. The annuity to be paid in half
yearly payments, and in default of such pay-
ment, from time to time, Moore, his heirs and
asaigns, had a right to enter, and levy by dis-
tress, etc. And should there not be BiilGcient
property found on the premises, etc., the
grantee had a riglit to expe] the grantor, and
occupy the premises, Seholfleld. his heirs and
assigns, were bound to keep the premises in-
sured, and to assign to Moore the policies; and
Moore, for himself, his heirs and assigns, did
covenant with Seholfleld, that after the expira-
tion of five years, on the payment of the sum
of live thousand dollars, and all arrears of rent.
the rent chsrae should be released.
Seholfleld and wife conveyed the above
premises, the 2gth October, ISIS, to John
Lloyd. The snntiity being unpaid In 182S,
Scott, as the balilT of Moore, entered, and made
dtitreas, etc., and Lloyd replevied the prop-
The principal question in this case, when it
was before the court in 1830. arose on certain
■pedal pleas, which averred the contract to be
usurious. And this court decided that, although
the instrument was not usurious upon its face,
yet that the second and fourth pleas contained
averments connected with the contract which
constituted usury, and the judgment of the
Circuit Court was reversed, and the cause re-
manded for further proceedings.
The case was again brought up in 183S, on
oertain exceptions to the ruling of the Circuit
Court, and among others, to the competency of
Jonathan .Seholfleld, who was sworn, and ex-
amined as a witness.
To show his interest, the following Instru-
saents of writing were read:
m*] •!- The original contract between
him and Moore, aa above stated.
19S4
5. A letter from Seholfleld to Uoyd, U«d
Mb June, 1824, which stated that the cootnd
which created the rent charge wa« usoriow,
and that measures would be taken to itt it
aside. And Moore waa notifled not to pajr ■»
part of the rent, and aasured, if distress shoM
be made, he should he saved harralcM.
3. A deed, dated IBth November, 1825, tm
Seholfleld, making a conditional a
one fifth of the annu"- -- ■" -
in Which he recites i
■ponsibility to Lloyd,
4, An exemplification of a record shovin| j
the discharge of Seholfleld under the insolmd
' ,wa of Virginia.
To show the competency of ScholOeld, tbt ,
following documents were given in evidence;
1. A release froD> Seholfleld, to the plaintiS,
replevin, dated 13th June, 1831, whentj,
for the consideration of five thousand dolbn,
he releases to Lloyd all the right, title and ia-
terest which he has or may have from the 4^
eision of the suit depending for the annuity «
rent charge; or which he £ts, or mky have, ii
the property out of which it issues. He ala*
releases Lloyd from alt covenants or obhgs-
tions, express or implied, arising oat of tk
deed of assignment.
2. A release dated 2Bth April, 1S28, fnM
Seholfleld to Lloyd, of all his right, etc., to tk
lit, etc., and to all sums of money whichssj
crue, and from all actions, etc.
3. A release of the same date from TboOMl
K. Beate and James M. M'Crea to SchoIEeU,
for nine hundred and flftj dcdlars, part of a
debt of two thousand dollars, due from hi* Is
A release of the same date from Joeef^
Smith, for one thousand one hnndred and ttnf
dollars, part of a debt of three thouaand dolltn
due to him from Seholfleld.
e. An obligation of Lloyd, dated 26tli ApA
128, binding himself to pay to the peraoM
named, the several sums released, aa above, t>
Seholfleld, should he succeed in the above rait
6, A release from Lloyd to Scholfteld of B*i
th oil a and dollars, debt, etc.
In giving the opinion of the court on tht
>mpetency of Scholfteld as a witness, the kit
Chief Justice says: "Some diversitj of ops-
ion prevailed on the question, whether be cmU
be received to invalidate a paper executed if
himself; but without deciding this c ■■ - -
that he is interested in the event of tbe suit*
His letter of the Mh of Jnne, to Uoyd, tk
tenant in possession, requiring him to withMl
from Moore the payment of any further sum rf
money on account of this rent charge, (xmtaiH
this declaration; "And in case distreaa •hoaU
be made upon you for the rent, I priMBiaa ti
that if yon make any further paynMnte afte
receiving this notice, that yon make tbea si
ur own risk." This, aaya the Chief Jnstii^
an explicit and absolute nndertaJdnw to m-
me all the IlaUlities whkh Lloyd tmg^t 1»-
r by suing out a writ of replevin- Hr. Stol-
id, then, IS reaponsihle to Lloyd for the cask
of this suit.
And the court htAA tbat the Tufama r«)<MM
above steted did not release ScholfleU froa M
PetMV !>•
1638
ZaCHAKIK Et O^C T. FlAHKLIIf ■
H»
obligation to pay the coats which had accrued
in the Eult, should the ftnat decision be against
Lloyd, and that he was therefore an interested
and incompetent witness. On this ground the
judgment of the Circ"it Court was reversed
and the cause remanded, etc.
During the late trial of the issues in the Cir-
cuit Court, the deposition of Jonathan Schol-
field was offered in evidence by the plaintifT
below, and objected to by the defendant, but
the court overruled the objection; and to this
opinion of ths court the defendant excepted.
The competency of this u-itncas is the only
question raised on the present writ of error.
To show the relation of this witness to the
cause, and his interest in it, the instrumenta of
writing used in the former trial, and which are
above referred to, were given in evi.I. .uri
and in addition, a release dated 24th »lui'cu,
1836, from Llovd to Scholfleld, of all liability
arising under big letter of June 0th, 1824, fnr
the payment of costs, and from all respanslbil
ity growing out of this suit, in any form a
A part of the iloiunients refi<rred to na used
in the former trial are not found in the record
of the late trial, the clerk of the Circuit Court,
*a is alleged, having on.iltcd to ci.-rt:.'y tbein.
But as those documents ^vcre used in the former
trial, and arc found In the report of th« case in
9 Peters, and as they do not change the result
to which the court have come nn the present
writ of error, there can be no objection to eon
■fdertng them as now befoic us.
The question is not whether Rchollield ba)
H»*] not been so connected "with the com
mencement and proHiH^ution of this suit as to im
pair his credit with the jury, but whether be
has an interest in the d"ciEjion of the case.
It Is not contended that the rule which does
not permit a party lo a negotiable instrumert
to invalidate it by his own testimony, applies to
Scbolfleld. The rule is laid down in the case
of The Bank of the United States v. Dunn, 6
Peters, GT, and also in the ense of Walton at el.
Asaigneee of Sutton, v. Shelly. I Term Rep. 206.
as applied to negotiable paper.
From the various releases executed by Lloyd
«nd Scholfield, and the other documents in Ihe
oase, it is not perceived that the witness can
have any interest in the decision of this suit.
He has relinquished all possible benefit in thu
judgment, should it be entered In favor of the
plaintiff below. Aod he is exonerated from all
responsibility should a judgment be given for
the defendant.
It is clear from the opinion of the court, as
(ibore cited, that Scholfield's liability (or costs
^vas the only ground on which he was held to
t»e incompetent; and this is entirely removed
bj the release of Lloyd subsequently executed.
On the part of the plaintifl in error, it is con-
tended that F?choIIield stood in the strict rela-
tions of privity of estate and contract to both
the parties to the suit, and that there wns also
privity in the action. This may be admitted
-vrhen the suit was flrst commenced, but the
<|i]e8tion arises whether this relation to the con-
trset, the estate and the action, has not been
diaaolved. There can be no doubt of this, -
less the rights of other parties, as the eredj
of SeholSdd, had beoome so inteiworen in the
transaction as not to be affected h^ tbe acta of
the witness and Lloyd. And this is the ground
assumed in ths argument. But on a careful
examination of the points presented and tbe au-
thorities cited, the court do not perceive that
there is sufficient ground to pronounce any of
the releases executed fraudulent.
The decision in 1 Petors's C. C. R. 301,
where the court held that a party named on the
record niight be released, so as to constitute
' 'm a competent witness, haa been cited and re-
ei on in the argument.
Such a rule would hold out to parties a strong
temptafion to perjury, and we think it is not
lined either by principle or authority,
hollicld in this case was not a party on the
record, and having devested himseir ol all in-
' rt arising out of the original agreement
1 the prosecution of this suit, snd [*150
l>eing liable to pay costs, we think the Cir-
1-1 lit Court did not err in admitting his deposi-
tion as evidence.
The judgment of the Circuit Court la, there-
fore. alTirniid with costs.
This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United States foi the District of Columbia,
bolden in and for the County of Washington,
and was argued by counsel ; on con si deration
ithereof, it is now here adjudged and ordered
by this court that the judgment of the said
Circuit Court in this cause be, and the same is
hereby uiliimed with costs.
HENRY FRANKLIN et nx.
Mark as signature of name in Louisiana— Ull
of sale not synallagmatic contract mider
Louisiana law.
Coder the Isws of Loulslans snd rh? ftedslons of
t*i. niTiTtt of tbe sure, a mark (or tlie nsmc to ao
' ' ' a perBon Ktio Is uniilile to wrlle bis
nstniment by a
lame. Is at the i
A bill at sale of slavog sad rurnltnri. ntcltln(
tiat tbe full conslderatioD for the proyerty trans-
ferred hsd Tieea reoelvcfl, and which dews not
conuln IDT itlpnletioDS or obligations of (be par^
to wbotn It is given, Is not a Bynatla^nnntlc con-
tract, under tbe laws ol I.AulsiaDa ; and tbe law
does not require tbat aucb a bill of hbIc shnlJ bate
beea made Id as nmnj orlginsls ss tticrs were par-
ties hivlns a direct Interest Id It, or tbai II
■hoald bsve been algaed bf tbe veadee.
Evidence will be legal, as rebnirlng teailmont.
as to repel an Imputation or charge of fraud:
which iroDid not be admlaslble as original evl-
IN error to the District Court of the United
States for East Louivinna.
The defendants in error, Hrnry Franltlln
and wife, on the 23d of January, 1830, pre-
NoTi. — SIsnature, wbat la sultlclent: signalurs
In EDKland. the attestation of a will by a wit-
nesa making bis mark Is sufflcleDt. sltbnii^ib Ibe
statote requires the will to be attested aod sob.
scribed b7 the win
Iffl
axjnaa Cousr or the u kited Statks.
tB3k
■ented • pptitlnn to the Diatrict Court of the
United Stales for the Kaalern District of Loui-
tianti, for the recoverv of ecrtaic Blaves, with
their cliildrcn, and kIbo of certsin stock and
household furniture, which the petition alleged
had been sold to him by JoHcph Milah, by *,
bill of sale, duly recorded in the proper
notarial oltice. The bill of sale waa In the fol-
lowing words'.
"Slate of l/niiBiana, Parish o( St. Helena.
"Know all men, to whom these preaenti may
~ome, that I, Joseph Milah, have this day bar-
gained, 8old, and delivered unto Henry Frank-
lin, his heirB, executors, adminigtrators, and
ushignB, »ix negroes, namely: One negro
woman, named Neemy; one boy, do. John;
one do. Sara; one do. Nela; one negro girl,
named Harriet; one do. Jenny; together with
all of my cnttle, hogs, horses, household and
kitchen furniture, for the sum of twenty-eight
hundred dollars, to me in hand paJd; which
property I do warrant and defend frotn me, my
Iieiri, executors, and aseigne, to him, hii heirs,
executors, administrators, and assigns, forever.
IBS*] ""In witness whereof, I have here-
unto aet my hand and aeal, tbil 17th day of
July, 1810. hit
(Signed) "JOSEPH X MILAH,
"Test; nark.
"Wm. M'Michael,
"Joel Ott," [L. S.]
"The condition of the above UH of aale is
such that the above mentioned property remain
in ray possession so long as I live; and. after
my l>o<lj' is consigned to the grave, to remain,
as above mentioned. In the above Mil of sale,
hia
(Signed) "
"Test:
"Wm. IfMichacl,
-Joel Ott,"
(Indorsed.)
"I certify the within to be truly recorded in
register, in page 65, according to the law and
uaage of this State. In fnith whereof, I grant
these prcsenta under my signature, and the
impress of my semi of oHice, at St. Helenii,
this 23d day of July, IBIO.
(Signed) "JAMBS M'KIE," [Seal.]
Joseph Milah died in July, 1834, and the pe-
tition claimed that the plaintiffs were entitled
to the negroes, with tlicir children, and the
disguised <1
' property mentioned in the bill of «ak,
whioh. nt the time of brinjtin;; the siiil. wi-reia
the pusseBsion of the defe]i<lRi,t3. wlio h.ld and
detained them, and liave refused to dclivpr then
to the pctitionr™.
On the fifth day of February. 1830. John
and Letitla Zscharie answered the petition, ad-
tting the; were in the possession of tke
negroes mentioned in the pctilion; and they
that J.,etltia Zacharie is in such po»se¥«ioB.
!r capacity of tutrix of her minor i-hildren^
are the lawful proprietors of them by in.
heritince, from tiieir father, JoMpb Milali
They deny that the bill of aale was ever aigned
by Joseph Milah; and, if signed by him, it
was done in error, 'and through false [*19S
and fraudulent repreaentstionn of the plaintiff,
and no consideration was given for the aama;
and the same was fictitious and coDusi
ntended to covt
tion of the slavi
therefore null and void. The dofendanta
aaked for a trial by a jury. Afterwarda, by a
lupplemental answer, the defendants SAy, that
at the time of the alleged sale, under priTale
Ignuture, Joseph Milnh had neil)rer f-bildren
or descendants actually living: sad. aince the
sme, the children of whlih Utitia Zacharie i*
the tutrix, have been born, and are now liximf.
On the trial, there was given in evidertce b;
the plalntilTa, Bmnn;; other documents, an in-
-'---nenta executed in South Carolina, TUctaland
ict, by JoBi'ph Miliih, on llin 11th day ci
July, 1806, by which Joseph Milah, under hi)
hand and seal, give a negro wf>ii>-h and a nrgi«
boy, and also his personal prop rty, to Sarah
M'Guirc. This deed was rei;ularly ackiiovl-
edged, and was recorded in tlie Richland dis-
trict, In South Carolina, on the 10th De«eu-
ber. ISOS.
ic cauae was tried by a jury, and a verdiel
rendered for the plaintiffs; on which the
court gave a judgment. The defendant took
two bills of txcrptions.
The first bill of exceptio
ing terms;
On the trial of this
in evidence an inntrii _
tition annexfd, anil bearing date the 17th July.
1819, and purporting to be executed by .Tanrph
Milah by the alTlxlng of his mark; and nff.red
to prove same by Uie ovidenoe of Willtav
M'Michael and Josipli Olt, whow sifnialnrw
lor. B /
,.™J. * M. I
Tbe law la South Carolina and Loulilaoa Is the
mine, A mark 1« a kood signature. Adam* t.
CbapllD. 1 Hill's Cb. zee; B Lpplf. hVi: U
ft a comiillanCT "with' til' nKiiiircmeDt" of the New
Fork sUtule rmiilHuji tbat the will atiaH be auti-
»frll-*d bj the rpHalor. CbarTee v. Baptlat^ Hls-
i\<man tonyentlon. 10 palB«. BS ; 1 Bob- On
So." wrl'llog with a pencil Is sufflclent. OeajT »-
PhTBlc, B Bnro. * C. 23* ; prown v. p. k D. Ban^,
a rilll, N. Y. 44n.
A mark U snfflcieot. notwl tbil in dins Ihe testato;
was nl.le to write. Taylor T. DfnninB. 3 Nm. A
Per. S'Jf: B. C. anb nom. Baker T. Dcanln^, B
ad. A Kii. e«.
SlanatTire of witness to a will. Iw a mai
•■■■a<iteDt Jackson v. Tan Deusen. B Jnbn. 144 :
I Field. 3 Curtelx, Ecc- 7*2; In the goods of
AabOMire, t Cartels. TM.
A wr- -' ' '
a waa in the fullow-
se. the plnlatirr offered
nrl»r
E I'l It. '
.11-
u belO ■
mark, vlMtont tltt >••>« af
118, marg. n, 74. note 2.
As to omh'Slon. or rrror. In middle nana >^a
mlsnomrr; names Idpni sonnni; Initials; "aeake^
or "Junior" no part at natne, see note to Kmbi »
yeade. « Pet. f ,__ ,.
■■1" '?l?=,.yj'"
aed aliunde.
n n uVtw.* 2 Car
'"'inr'i^
nla. 11 hno brc
n hfld that tbe wBI
muiit be
BkniMl wJlh Ibe te
stator's owa oaai.
I. nr liT HDiDt
iHTimn Id tam pn«-
pii.ri-^K dlrei't
«n I1H mark U h-
*°Sui"t
011-8 Dig, 071
: A*«iT V, Ilwrfl:
7 Penn,
urn. Zl: 1 Jn
ra, on Will-. 112. M
Am. rd.
p. 70, nole 1
CsTttts Appeal. (
Watts A
a. 21
A mark Is a cood •>1-nalurr
D New Jcrsej. DM
rer, be prured
0 be the BBrti «( (W
'roiim
larr. A J. son. Km
Bv, a
'J'n77 : raker t. DennlnB. 8 A*
A KTl, N.
B.M
Ilarrit:nn v, 1
llin. a Ad. k rai. ».
s. 117 ; Doe T.
DiVti. 11 Jnr
IK: 1 Krcal. Bv.
(4th ed.
see.
na: 1 Jarm.
QD Wills. 8 Ab. •*■
IKS
Zachauk r dz. t. PumEuit n vx.
ftre affixad U subMriblng witncMes, which in-
atrument ii made part of this bill of exceptiona;
the defendantB objected to the introduction of
said Instrument and teHtimonj on the ground,
lit, that being an inetrument paiporting to
convey slaves, tbe aame was nuil and void na
not having been signed b; the vendor, and that
no parol proof could be admitted to prove ite
execution. 2. That • mark ii not a signature
within the provision of the lawi of Louisiana,
in relation to the eonvejnnce of slaves. 3.
That the instrument, containing a avnallagmatie
Fontrnet or mutual and reciprocal obligation,
not being in the form of an authentic act, was
inrslid, because not mads In as many originals
aa there were parties having a direct interest.
4. That the same was not signed bjr the
vendee. But the court overruled the objec-
The second bill of eiceptiona was talcen to
1B4*] the admission in evidence *of the in-
Btrument executed in Richland district. South
Carolina, as a gift or donation of two slaves
and certain personal property.
1. Because the plaintilTa In their petition
claim to have a title to the slaves referred to in
their petition by virtue of a bill of sate to Henry
Franklin, one of the piaintiffs, under date of the
17th July, IBIO; and that tbey cannot offer evi-
dence to establish title from any other source
than that therein stated.
2. Because there i* no evidence of the identi-
ty of the person by whom this Inatroment pur-
port* to have been executed, with James Milah,
•inder whom plaintiffs claim, nor of the slaves
named in the petition.
Tbe defendants also moved tor » new trial,
on reasons died, which motion was overruled
by the court.
The defendants prosecuted this writ of error.
Tbe case was submitted to the court by Mr.
Benton and Mr. Preaton, on printed arguments.
Hr. Banton read the arguments for the plain-
tiffa In error and for the defendants.
The argument for the plaintiffs in error was
KB follows:
The court. In overruling the motion for a new
trial, sums up the eridence, and shows clearly
th« nature of the case, as established by the
fkets.
The judge states that ft was proved on the
trial that the writing sued upon was executed
when Joseph Hilah was supposed to be on his
death-bed. Then it was made mortla causa,
aind was Intended to be a will, or to have the
■ame effect. It contains the disposal of hia ne-
groes and furniture. The subsenbins witnesses
do not prove any money paid, and we know
the man was not trafficking In negroes and
furniture, for money, on hia death-bed. He was
iTiakitig a donation, mortis causa; and, aa the
judge correctly concludes, waa disposing of his
half of the community of acqueats that had ex-
isted between him and his deceased wife, in
favor of her sister, aa he might do by tbe laws
of Louisiana, having no children. But by the
laws of Louiatsna then in force, aa well as by
tbe present code, "no disposition, causa mortis,
could be made otherwise than by last will; all
other form is abrogated" (Civil Code of 1S08,
p. 226, th. 6, sec 1, art. 91), and being a nun-
enpative testament, under private signature,
sbmiU have been attested by live witnessea, ra-
the code, which are not pretended as to the act
of IB19, sued on. All tbeae formalities were
essential to Ita validity, as well aa that it ahould
have been probated and ordwed to execution.
Same Code, p. 242, arts. 1S3, 167. The effect
of a will, by tbe verdict and judgment, is given
to the instrument, and fet it waa utterly null
and void as a will.
But, as a will, it transferred only one fifth
(though the judge thought one half, from not
adverting to the laws of inheritance) of Milali'a
half of the property to the Imtee, donee or
vendee, by whatever name she ta called. The
other four fifths belonged to Joseph Milah's
two children, and forced heirs, of which he
could not deprive them by will. Civil Code of
16D8, page 212, articles 10 and SS. And yet,
atrange to think, the judce justifiea tbe Jury in
giving the other four fifths, or half, as he sup-
poses, to the plaintiffs on the ground of dam-
ages, in which he ooncurs; although there la no
claim for damagea in the petition, and although
if proved (though he atates it was merely ar-
gued) it would not support a verdict and judg-
ment for title. The ground on which he sup-
ports tbe verdict for the other half of the slaves
IS tbst not the plaintiff and vendee In the title
sued upon, but his wife inherited that from her
deceased sister. The exiatence .of all tfaeae
facts, which were offered in support of the
verdict, were inconsietent with it, and with the
aetlon, and clearly showed that the verdict waa
contrary to law.
This evidence and theae consideratinis were
undoubtedly offered in lieu of a oonrideratioa
for the bill of sale, that is, In place of the two
thousand Nght hundred dollars; but if so, then
the sale v>aa simulated, and not real, aa
pleaded; but a disguised donation or testament,
and therefore null, not being made according
to law.
The judge further sUtes that It appeared that
the act waa made to avoid the expense of set'
tling Milah's estate In the Court of Probates.
This was not the consideration expressed, but
an illegal consideration, and one that ceased as
soon as Mi tab recovered. For these reasons
the act was null (CSvil Code, article 1887), and
remained a recorded nullity; and peculiarly ao,
after the subsequent birth of Milah's children.
Old Code, page £24, article 74. Until now,
fraudulently revived after his death, wheu or-
phans are left to contest that which, from
shame, would not have been presented had be
been alive.
But the judge charged the Jury, and theeoun-
sel of the plaintiffs now argued for the same
thing, that, regarding the instrument ancd on
*aa a donation, although, by the Old [*16«
Civil Code (page 224, article 74), the law in
force at the time it was revoked by the subse-
quent birth of children; yet a aubaequent law
(article 1E66 of the New Code) madethedona-
tion revocable only, and the last law is to gov-
ern the case. Then, in a donation upon condi-
" m, the Legislature can dissolve the condition
thout till' consent of tbe donor. It is only
necessary to state the proposition to have it re*
jected, and lo induce this high tribunal to in-
struct the inferior tribunal to instruct the jury
more properly. But the article ISM of th*
IM
SnraBHE Coimr or tarn Uitmu Staieb.
New Code rerokea the donfttlon up to the di>-
K sable portfon, which, in the preient caie, there
titg two legitimate children contending for
thair inheritence, is one half of the eatate.
New Code, 1480. The donation U not revo-
cable, but revoked to thftt extent.
Theae reaeons of the judge, the parol teeti-
r triftli ali show conclueively that the prt-
nte act of 17th July, IBIQ, wa« not a real
tranifer of elave* for two thousand elsht hnn-
dred dollar* in hand paid, and, therefore, the
verdict declaring it eo, was contrarr to law and
eTid^nce; and the new trial ahould have been
granted by the inferior court, and muat be
granted by thia court. Indeed, the whole pro-
ceeding ehowB Buch confusion in the mindt of
the court and jury aa to what tbey were try-
ing, that Bubstantial justice requirea that the
eaae should be remanded for another trial.
on into a will, though against the very letter of
our taw, and yet administered the laws of in-
heritance and act of testament upon Milah's
Buccesaion; and, in doing go, made a medley of
the lawa of Louieiana and South Carolina, and
atilt could not deprive the children of the last
fourth of their paternal inheritance, without
taking an account in equity of the rmta and
profits of the alavea, and enforcing it by trea-
paas on the case for damage*.
The admission of the act sued upon in evi-
dence was oppoaed, and being admitted, excep-
tion waa taken thereto. It is liable to three
legal objections :
1. It waa not recorded in the office of the
pariah judge of 8t. Helena, where it was made,
and where the parties lived. The law of Loui-
BJana in force at the time declaredi "That no
notarial act concerning immovable property
(and slaves were immovable property) shall
have any effect agsinat third persona, until the
aame shall have heen recorded in the office of
the pariah judge, where such immovable prop-
IBS*] erty 'IB aituated." Bee 3d Martin'a
Digest of the Laws of Louisiana, page 140.
Mrs. Milah and her children are, aa to this
transaction, third peraona aa to Hilah; because
ahe married him, oelieving him the owner of
the slaves in his possession, and there was no
recorded outstanding title.
i. The contract waa synallagmatic. Uilah
waa bound to keep the alaves, that tbey might
be delivered at hia death; and Franklin to
grant the enjoyment to Milah during life, and
even to pay the price, if it had not in reality
been pai't. Yet it waa not made in two origi-
nals, which the law, In force at the time, poai-
tively required, on pain of nullity; it bring a
writing under private signature. Old Code of
Louiniana.
3. The mark of Milah is made to the inBtru-
ment, and not his ai^ature. This objection
rents upon our peculiar law, which declares
"That all sslea of immovable property or slaves
•hall be made by authentic act, or under private
•igneture." A verbal sale of any of these things
ehall be null, aa well for third persona, aa for
the contracting parties themselves; and the tea-
timonial proof of it shall not be admitted.
Qvil Cod^ ttrtiela 841B. And is dcflning
acta under privat« signature, our code daduM
that it ia not necessary that those acta be writ-
ten by the contracting parties, provided thej
be signed by them. Article 2238. It is
thou^t, under uniform decisions in FrasM
upon a aimilar article, that the words "sigu-
ture" and "signed" do not embrace a msifc,
and thia interpretation fa the more reaaoDsUt,
as it is so eas^ to have the contracts of pertou
who cannot sjgn made before a notary, and it
is so important with regard to the ImmovaUa
property and the slaves of a country.
Exception was also taken to the introduetim
in evidence by the plaintiffs of a title to parte)
the alaves, and from which the others descal-
ed, dated in Richland district, SUte of Soatt
Orolina, on the 11th day of July, 1805. The
objection la based upon the universal rule that
the evidence in a cause muat corrcApond with
the allegations, t Starkie on Evidence, SM;
8 Idartin'B Sep. 400; 3 Martin's New Scriei,
606. The plaintiffa aet up no such title ia
their petition. It ia true, the judge atatea te
admitted it only aa rebutting teatimony to tlw
parol evidence as to fraud, eepecially as evi-
dence had been given of a previoua dispontfaa
of the property. The Idea of the judge ia lot
very clear, but it Is very clear that a title has
been admitted in evidence, against which tht
defendants had no opportunity to prepare to
defend themaelvea, and that much more than a
rebutting 'effect waa given to it, since, [*1SI
in the charge to the jury and In overrulirig the
motion for a new tri^, as appears by the judged
eontingcnlly, tranBlotive of property i
aiana, yet. by the laws of South Carolina, he had
an absolute right to donate the whole of h)i
For all which reasons the plaintiffa In tr-
ror pray that the judgment may be revcned,
and the cniiae remanded to be tried again.
For the defendante in error, in the printd
argument of Mr. Preston, it waa said:
The plaintiffs below. Franklin and wife, av
to recover from the defendanta below, but wba
are plaintiffs in error, certain elavt-a, with their
increaae, fn a bill of aale mentioned in and aa-
nexed to their petition. The defendants, Zaii'
arie and wife, disci sim title in tfaemMlvet.
but aet it up for the children of the wife, aa
beira of one Milah. They answer that they da
not know if Milah, their ancestor, ever mala
the bill of sale; and, if he did, th«t it m
aimulated, and intended to corcr a disgoised
donation; and that this donation b^Nmrne buB
and void by the aubsequent birth of tb« <U-
dren of Milah.
The flrat question presented by the bill of ei'
ceptiona of the defendants, ia aa to the admini'
bility of the bill of aale of the slavea fmm MUtk
in evidence. The execution of it by Milah, )lj
affixing hia mark thereto, he nnt being able te
write, waa proved by the aubHeribing witniuM.
and the court admitted <t to go to the jury.
The denial of the expcution oi* the bill of aak
of the slaves by Milah must be considcrw] ai
waived, by the subsequent and incornsistMt
plea that it became null and void by the birA
of children. See Arnold v. Bureau, T Mar-
tin's Beporta, 2ST ; Nagel v. Mignot. 8 Martirt
lieporta, 403, 4IM. But U, aowithsUwliK
ZaCBASIB R UX. T. FlAKKLm Wt UL
IM
to prove the execution of th« bill of lale. it lias
been sufficiently dons bj prvTing, by the sub'
•cribing witnessee, tbst Mil«h affixed his mark
thereto. For a lous Being prive actof Mile, with
the mark of the vendor, it sufficient. It U not
requisite that he sbould ligQ his name to m^e
it Vklid. This question, which has been raised
in Louisiana by quotations from French writ-
era, baa received a Judicial decieion linee the
trial of this case from the Supreme Court of
the State of Louisiana. Tagiaaco et al. v. Mo-
lina ri's Heirs, B Louisfana Reporta, ^. SI 2.
The foroe and efTect to be given to iDstru-
menta which have for signatures only the or-
15B*] dinary 'marks of the parties to them,
depend more upon rules of evidence than the
dicta of law relating to the validity of oon-
tracts required to be made in writing."
"The genuineness of Instruments under prl-
Tate signature depend* on proof; and, In all
caaes, when they are established by legal evi-
dence, instruments slgfned by the ordinary mark
of a person incapable of writing his name
ought to be held as written evidence."
The rules of evidence by which courts of
Justice have been governed in this Stat« since
the change of government, have been borrowsd,
in a great part, from the English law, aa hav-
ing a more solid foundation in reason and eom-
"Aecording to tha rules of evidenoe as
adopted in this State, the ordinary mark of a
party to a contract, places the evidence of it
on a footing with all private Instruments in
irriting." This case has since been eon-
Brmed by that of Madison t. Zabriskle, IL Loni-
■tana Rep. p. 2SI.
The next question Is raised by the exception
tkken to the charge of tha court to the jury.
The Judge charged the Jury that a donation,
under the form of an onerous contract, is not
voidj and in this he is supported by the ded-
^ons of the Supreme Court of Louisiana. Tra-
han V. M'Manui, 2 I4. Rep. 209; Hones at al.
r. Patlernon, 6 Martin's Rep. flS3.
The defendants required the judge to charge
that, by the article 74, page 224, of the Old
Ctvil Code of the territory of Orleans, a dona-
tion became sbBoIutely void by the subsequent
Urth of children, and it was in foroe and to
govern in this ease. Tbis be refused, because
that code was repealed by the Act of tin Leg-
lalature of the State of Louisiana, 12th March,
1838, psge 66. And the present Code of Loni-
■iana (article 1666, enacted in IB25] revokes
donations only up to a certain extent, and
under certain drcum stances; and this last arti-
ela (l&fi6) of the Louisiana Code should apply,
because the children were bom subsequent to
ita enactment. There is, then, nothing erro-
neous in the charge of the judge, udt in the
admission of evidence, and the judgment ahould
1m affirmed.
The defendants below present two other
points of objection to the legality of the judge's
decision in the court below. First, for admit-
ting the plaintiffs to give. In evidence, a deed
of gift for the same property to plaintiff's wife,
In the year 180S; and, second, for admitting a
t«at«mentary bequest of the same property. In
favor of plaintiff and wife, in 1834, to be
1 tO'J kItcb la avideiwaj U bilii| aifned 'that
this title by gift was setting up a Afferent ti>
tie from the one declared on, and that the will
making the bequest was not duly executed; but
the judge overruled the objections, and admit-
ted the evidence, not as titles, but to rebut the
flea of a fraudulent conveyance, and to show
hat Miiah was uniform in his determination,
from ISOS to 1834, to pass this property, after
his death, to the sister of his flr^t wife, with
whom he received this property, and who died
childless; that sister and her husband being
now the claimants of the property, against tba
children of a second marriage.
Mr. Justice Baibonr delirered tba opinloD
of the court]
This esse is brought into this eonrt by a writ
of error to tbe District Court of the Unitad
States for the Eastern District of Louisiana.
It waa a suit commenced bv tbe defendant In
error for himself and wife by a petition, ao-
cording to the Louisiana practice, for the reeov*
ery of several slaves (with their increase) and
other property, consisting of stock of several
kinds, and household and kltcben furnitun;
which he alleged had been sold to him by •
certain Joseph Milah, by a bill of sale, duly
recorded in the proper notarial ofBce; of which
bill of sale, profert is made in the petition, and
which is in the following words, viz.: "ICoow
all men, to whom these presents may come, that
. , „ f my
cattle, hogs, horses, household and Utcheu fur-
niture, for the sum of twenty-eight hundred
dollars, to me in hand paid; which property I
do warrant and defend," etc. Signed, Joseph
Hilah, with his mark. To which was added
the following condition, vii.i "The condition
of the above bill of sale is such that the above
mentioned property remain in my possession so
long as I live; ana, after my body is consigned
to the grave, to remain as above mentioned in the
above Ull of sale." The defendants, Zacharie
and wife, died their answer, denying all the
allegations in the petition, except as they there-
inafter specially admitted. They then proceed
to state that the female defendant waa in pos-
session of the negroes referred to in the peti-
tion; that she possessed them In her capacity of
tutrix of her minor children, John and Joeiah,
whom she avers to be the lawful proprietors
thereof, by a just title, to wit, by inheritaaea
from thefriather, Joaeph Milah ; they denied that
the writing attached to the plaintifTa ['lai
petition was ever signed or executed by Hllah,
was done in error, and through the false and
fraut'.ulent representations of the plaintiff; and
that no consideration was ever gi*en or n>-
ceived therefor: that, if It ever were signed or
executed by Mllah, it waa Sctiti one and collu-
sive, intended to cover or conceal a disguised
donation of the slaves therein mentioned; and
that as such, it was null and void, not having
been msde with the formalities required by
law, and they prayed for a trial by jury.
The defendants afterwards filed a supple-
mental answer, stating that, at the time wneo
tbe allefed ml« vader privat« algaaturs pur-
fiOTIEllI OOUtT or TBI UllTnD BUSBS.
18M
port«d to tiBT« been eieouUd, UlUh had neither
children nor descendant! tctually living, and
that legitimate children of said Miisb were
afterwards bom and were then living.
A rcrdict and judgment were rendered in
favor of the plaintifT.
At the trial, one bill of exceptions waa taken
br the ptnintilT and two hy the defendant. Aa
Judgment waa In plain tiff's favor, it is u
eration of thoae taken by tb« defendanta, now
plaintiffs in error.
The first of these waa taken to the admtasion
In avidence of the bill of aale, of which profert
waa made in the petition, upon several srounda
whicb amountcsl in substance to this: that tbe
Inatrument, being one which purported to eon*
ve; slaves, was null and void, beeanae it waa
not signed hy the vendor; a mark not being,as
alleged, a signature within the provision of the
laws of Louisiana in relation to slaves, and that
no parol proof could be admitted to prove its
«xecution. And that the instrument being one
which contained mutual and reciprocal obliga-
tions, and not being in the form of an authentic
act, was Invalid; because not made in as many
originals, as there were nartiee having a direct
interest, and not signed oy the vendee.
No adjudgod case ia produced by the counsel
for the plaintilTs in error in support of the first
branch of the objection— that the instrument
has the mark, and not the signature of Milah.
It is rested on a provision of the law of Louisi-
ana which declares "that all sales of immova-
ble property or alaves shall be made bj au-
thentic act, or priTat« signature."
Signature is indeed required; but tbe ques-
tion is, what ia a signature f If this question
were necessarily to be decided by the principles
of law as settled in the courts of England and
lia*] the United States, 'there would be no
doubt of the truth of the legal proposition
tliat making a mark is signing, even in the at-
testation of a laat will and testament; which
has been fenced around by the law with more
than ordinary guards, because they are gener-
ally msde by parties when they are sick, and
when too they are frequently inopes consilii. and
when they therefore need all the protection
which the law can afford to them. This prin-
ciple is fully settled by many cases, amongst
others 8 Vesey, 1B6, 604; IT Veaey, 4S9. Bee,
also, 5 John. 144.
But the question has been directly adjudi-
cated in Louisiana. In 9 Louisiana Rep. 612,
it is said "that the force and effect to be given
to instruments which Imve for signatures only
the ordinary marks of the parties to them, de-
5 end more upon the rules of evidence than the
icta of law relating to the validity of eon-
tracts required to be made in wriUng. The
genuineness of instruments under private sig-
nature depends on proof; and in all cases where
they are established by legal evidence, instru-
ments signed by the onlinary mark of a person
Incapable of writing his name, ought to be
beld as written evidence. According to tbe
rules of evidence aa adopted in this State, the
ordinary mark of a party to a contract places
tbe evidEnce of it on a footing with all private
Inatrume&ta In writing." To the same point
Me the case of Madiaon v. Zabrialde, 11 Louid-
1949
ana Rep. 261. This branch, then, of tba ab^
tion to the admission of the instrument In ari-
dence is wholly untenable. Nor is the otksr
branch of the objection to Its admissibility bii-
ter supported; aa the first branch fails.aawa
have seen, for the went of law to support it,ao
this second branch fails for want of the fact, the
assumed existence of which is the only basis
on which it rests. That is, it is not, in tks
lan^age of the law, a synaltagmatie contract;
or, m other worda, it does not contain mntoal
and reciprocal obligations, to which descriptlm
of contracts only does the objection at all
All the words in the inatrument, as well la
its body aa In the condition, are the words of
the maker of the instrument, the vendor, lie
vendee does not sign it; be does not speak ta
it at all. Consequently, there are not, aad
could not be, any direct stipulations by Ua,
nor can any be implied from Its language aoi
provisions; for the paper acknowledgee on Ui
face the receipt of the whole purchase moncT,
and nothing whatsoever waa to be done bj tCi
vendee.
The second exception taken by the defi-
ant was to the admission in evidence on tbs
part of the plaintilf of an instrument of writ-
ing, bearing date Jul^ the llth, 1805, in the
State of South 'Carolina, purporting to [*ICI
have been eii^uted by Joseph Milah, as a ^t
or donation of two slaves and certain goods
and household furniture, to one Sarah M'Guire.
The court, however, admitted the evidence,
and as we think, properly, for the reason aa-
signed in the hill of exceptions. From that it
appears that previously to the offering this last
paper, the court had ailmitted evidence on tbe
part of the defendant to prove fraud and want
of consideration; and they then admitted the
eiper thus objected to as rebutting evidence-
ad it been olTered and received by tbe court,
as is objected by the counsel of the defendant
in error, as evidence of title, it would, nn-
der the petition, have been inadmissible, np-
on the ground of a variance between tbe allc'
gation and proof. But it was distinctly received
only for the purpose of repelling the parol evi.
dence which had been given to prove fnud
and want of consideration, by ahowing that
Milah had, as early as 1806, maiiiifested a dis-
position to give the property to tbe plaintifTs
wife, who, as appears from the record, was tbe
sister of the former wife of Milah, who had
died without children: the plaintiff's wife is
the person named as donee in tlie deed befofs
stated as having been executed by Uilah ta
South Carolina.
When we speak of the plaintiff in this eoa-
nection, we mean the plaintiff in the court be-
low, the now defendant in error.
After the verdict was rendered, the defend-
ant in the court below moved for a new trial,
for sundry reasons stated on the record, wki<^
was refused. Tbe granting or refusing of new
trials rests in the sound discretion of the eonrt
below, and is not the subject of reversal in tUi
court. Without making further citations h
proof of this proposition. It will be iuflkiMJ
to refer to 4 Wheat. 2B0, where it ia aald bf
been already decided, and Is too plain for atfi-
CLAHk V. JlAtHEWSOa a AI.
U MUM cune on to be bekrd on the trsn-
t of the record from the Circuit Court of
Jnited States for the E«stem DJatriet of
litna, and wan argiied hj counael; on con-
ition wlieieof, it is now hu-e adjudged
irdcred by thii court that the judgmeot of
lid District Court In this cause l*e, ftnd the
i« hereby affirmed with coata.
!IY MATHEWSON, <>ruH Butler. Edward
in^OQ, and SuDuel Wetmore, Appellee*.
liction once attach[<d not loat by change
'sidence of pHrtics— bill of revivor not
- 1 of new euit.
Ill wu Hied br W., I clIlxeD of Cooncctlcat,
t M. auJ otticra. cltlienn <>[ nUodc lalaod, la
rciiit Court of (be Umted SUtn far the Dli-
f KIiDiIe Islaud. An aoiwcr kbs v'lt Into tlia
ul tbe caiiM WBi referred to a muter for an
.(. IVailliig these proceed Iuks, Ilie <: om-
it dird : aod admlaiiCritlan at bl« elFecti
anted to C-. a clllien of Rhode Iilahd, who
Mil ot r*TlTor Id Cbe Circuit Court. Tbe
t Rhode lalaod do not permit a perion resld-
t er tbe !*tnte to take oat admlnlBtrallan ot
ecta ot B dccraiinl penoD within the BUta,
Ike aorh admlQlarratlon ludlspeiuBbla to tbe
ition and il^fcnse of anr ault In the State.
t of the eatnte of the deccaiad. Held, tbat
mtlon ot the 0
RlDBl
lid not lie dcToled bj ani aubse-
and the Clrciilt Court ot Rbode
I autborltj to proceed to Ita flnel
_ . .e with tbe de-
. tbe JurlidlctloD of the Circuit Court orac
in la not affected b; Bncb cbaoge ot dom-
dralh Of n partj pendlnt a anit doaa net,
he aanae ot sctlan anrvlrea. amount to a da-
tlon of the aiill. It mlRht, Id auita at com-
w, upon the mere prlnclplea of that law,
rodiiced an ahatemcnt at the antt. which
lave dealrojed It, But In eoarta of equltT,
1 abatement amounta to _.....
: to a determination of tbe ault. It mar
• pot In motion bj ■ btll ot rerlTOr; and the
ana being raTlicd. tbe court proeaeda to
ft '
e JuHadlctiol
of croia bills nnd Injunction bllM,
K and jiiilt-meDrt alrradv Id thoae courta.
I Slat eecilOD of the Judlclar; Act ot 1788,
■ manltcatlj treata the tevlror of a ault hf
at tbe rPrirenCDlatlvea of the direfined par-
matter DT right, and aa a mere eonilnuance
rislnal ault : without anj dIatlDction aa to
■.eusfalp of Ine repreaentntire. whether be
to The anme Slate wbart tha caua* U d«-
or ttt BQOtlier Btala.
*AN appeal from the Cireuit Court of ('Its
yj the United State* from the Uatricl of
Rhode Island.
Wiliard W. Wetmore, a citizen of C0Dneeti>
cut, filed a bill to Judo Term, 1H30, ul the
Circuit Court of the District of Rhode laland,
against Henry Hatbewaon, Cjrua llutler, Ed-
ward Carrington, and Samuel Wetmore, dti-
aens of the State of Rhode Island, claiming an
account of certain mercantile adventures, in
which be alleged liimaelf to have been inter-
ested, together with the booka, invoices, and
lilt of passengera on board of the ship Superior,
in whicli he asserted he was interested, and for
a full settlement of all accouDta between bim
und the defendants, and for such other and
further relief in the prembea as the court might
think proper.
The separate answer of Henry Mathewaon tv
the complainant's bill was filed In September,
1830; tbe answers of the other defcnUanta bav-
ing been filed in June or July of the same year.
A auppleniental answer waa afierwardi filed
by Henry Jdathewaon, and in November, 1831,
after various pleading* in the case, counsel
having been heard, the cause was referred to a
mabtcr to taice and state an account between
the parties, etc. The parties appeared before
the master and his assistants, and an examina-
tfon of the accounts was had and proceeded in.
In 1S34, before a report was made by the
master, Witlard W. Wetmore died; and ad-
miniatration of his estate and elTects wss grant-
ed by and out of the Municipal Court of the
city of Providence, In the State of Rhode
Island, to John H. Clarke, a citizen of that
Slate; who thereupon filed a bill in tbe Circuit
Court to revive the suit, and prayed that the
same should stand in the same situation as at
the decease ot the original complainant, Wil-
iard W. Wetmore.
On the Tth of July, 1S31, Henry Mathewson
appeared In the Circuit Court; denied the ju-
riBdiction of the court, and moved to dismiss
the suit, on the vrouiid that John H. Clarke
was a citizen of the State of Rhode Island, a*
were also the defendants. At November Term,
1835, the Cireuit Court diamiascd the bill for
want of jurisdiction, and the complainant ap-
pealed to thia court.
The case was argued by Mr. Soatbaid for the
appellants, and ^ Mr. Tillinghait and Mr.
Webster for the appellees.
*Mr. Sontharl, for the appellanta,con-[*l*t
tended:
1st. That tha court had jurisdiction of tbe
luse upon the original bill.
2d. That the Jurisdiction would not have
been taken away by the removal of the eom-
plainant to Rhode Island.
3d. That the death of tha complainant did
not abate, but auspend, the suit, and the juri*-
diction of the court was not thereby lost.
4th. That the administrator had a right, in
quity, to revive and continue the suit.
The Grcuit Court of Rhode Island had
originally jurisdiction of the case, and fb«
parties went on, after the filing of tbe U1I and
the answers, to tbe examination of the accounts
under aa interlocutory decree of the court.
While the cauM wai la thia state tbe complain-
H 1041
iW
ScPBaitE Cotnr or tu Unmo Statu.
knt died, knd bj the Uwa of Rhode bluid no i
■dminUtration of bis afTura could be gniDtcd
to anyone but a citizen of that State. The a^t
of the LegislatuiH is expreea □□ the subject, and
requires that adidiDittratioa of the estates of
decedents sliall onlj be giTcn to citizens and
residents of Rhode Island.
If, then, this cause ia to proceed, it must be
bj a plaintiff or complainant who is a citizen
of Rhode Island; and if not, all the htigation
between the parties will have been fruitless and
unproductive. If the jurisdiction of the court
has ceased, a result will occur which would
Drevail in no other State. The parties must
commence a suit in the court of the State,
where he may perliajis be met with a plea of
the statute of limitations, and thus hia remedy
will be forever defeated. The case, toe, ia one
peculiar for the jurisdiction of a court of chan-
cery, and the courts of the State of Rhode
Island have no chancery jurisdiction.
This is a bill of icvivor and from its nature
and purpose, it seelis to restore the case to the
chancery docket of the Oreuit Court, in the
tame situation it was before the death of the
original complainant. It docs not aak to
change the controversy or to add to it, and it
will stand when revived, in the condition it
did before the occurrence of the event which
made it necessary to revive it. The bill of re-
vivor is not an original suit; it is nothing more
than the means of continuing the suit already
commenced. It introduces no new matters for
controversy and adjustment, and only furnish-
es the means of bringing to a close those aJ-
reiidy in poaaeseion of the court. The citizen-
ship or residence of the adminiatrator baa no
111*] connection with the case; "the mattera
ftre litigated in the same manner as if the orig-
inal party was yet alive.
It is, then, still a controversy within the pur-
pose of the Judiciary Act, which gives the Cir-
cuit Courts jurisdiction of matters in suit be-
tween citi!:ens of different States; as all the
matters controverted will be those eet forth In
the bill of the complainant ori^nalty filed b^
him in the Circuit Court, be being then a eiti-
Ten of Connecticut.
The death of a party to a suit in chancery
does not abate the suit; It ts only suspended.
In this the law of chancery differs from the
common law. C^ted, Grant's Chancery, SI, S2;
Cooper's Chancery, 94. And this is more es-
pecially true under the Judiciary Act of the
United States, and in the courts of the United
States. By the Slst section of the act, ad
ministrators and executors are autboriied tc
prosecute suits in the eourts of the United
The onject of this section was to carrr ont
the principle that a suit should not abate, if thi
cause of action survived. Congress intended
to supply a remedy in the ease of the decease
of a party. It should b« shown there has been
a decision on this point by a court of the Unit-
ed States, and until this is done the plain lan-
gua^ of the section will prevail.
Authorities cited to show that where juria-
diction has attached. It cannot be devested by
anything which does not change the great in-
terests in the cause: 1 Peters's C. C. K. 444; i
Wheat. 63T; S Wlieat. 290.
It ha* not been the course of the court* ot the
19*9
United States to consider their jurisdictloi, aft-
er it has once attached, as taken away by tk
subsequent change of residence of the party.
A suit properly commenced between citizen* d
different States still proceeds; although the par-
may, before its term in si ion, become dti-
of the same State. This is a stronger csm
than where the party dies. It wss the set of
the party to become a citizen of the same State
with his opponent; it is by the visitation of
God that toe party in this case ceased to hsvt
ability to proceed In his cause.
Suppose a cltiEen of Rhode Island, after tak-
ing out administration to the estate of Willartl
WT Wetmore, had removed to ConnecliLut;
if done bona fide, would give the court jn-
risdietion. If immediately afterwards he re-
turns to Rhode Island, the jurisiliction of thi
court ia not disturbed. Cited, 1 Paiae's C C
R. 694.
All the cases which have been decided have
been as to the vps!iiig of the jurisdiction in tk
courts of the United .States originally. This is
*a case in which the jurisdiction has [*!■•
fully and legally vested; and the Act of Coe-
gress declares (hat the suit shall not obate by
the death of one of the parties. Ko matttf
what the form of a bill of revivor may be, it is
no more than the instrument to carry into *f-
fect the act of Congress which declares the nil
shall survive.
As to the suggestion that questions may ariv
under the bill of revivor, and that they wHl lis
riationa between citizens of the same Stale,
court must be aware that these must b*
questions in the original auit. They will be ia
cidcnts to that suit, and to the mattera in con-
troversy in it, and no more.
Mr. Webatei and Mr. TiUinKhsat, for the I*
fendunts.
The plaintiff alleges that he was appointH
administrator by a court of probate in Bliod«
Island, and he sett forth various matters, iS
necessary to his title and claim, and all of
which the defendant may legally controvert.
The prayer of this bill, which is original as be-
tween these parties, is that a former bill, cYbib-
ited in the lifetime of his intestate, when tiii
plaintiff sustained no relation to that bill, iu
parties, or its suliject matter, may be revivfJ
for his benefit and relief, with the benefit as*
use of all proceeding therein : and all aea'S't
a cititen of the same State, who reeiata andcw
troverts his right. This ia the controversy o(
this bill, and it it wholly between citiieni rf
the same Stste.
The plaintiffs relation to the estate of W«i-
more, deceased, was not thrown upon him ^
the act of God or the operation of law, but *••
formed and asaumed by hia own consent aid
contract.
His title to anything claimed in the forM«
bill, if he has any, is by purchase.
If a legal administrator, he ia the legal aa<
aole owner of all the property claimed; and tit
court, under this hill, cannot, it is presumei
deal with any claims to the property beymj
those vested in them. But were this other* is*-
still it not only does not appear in the UIl «tot
those who may have ulterior claims em him m
creditors, surviving partneiu, or distributees •(
the property of the deceased, mn citizen* of •■-
ChAMK r. HAXRVraoH i
•vr.
r StkUi but OB the cmtraiy, tka nwtne
-„e court! of genenl jiuisdictiini are open
to bim, and there are perlect remedies therein
tor ev«ry grievftnce in those court*.
It Tecjuired legialstiTe power to enable an
•dminiitrator to come into a luit pending at
the death of his Inteitate, to revive and continue
the proceedings in a conrt of general juriadic-
109*] tion. State legitlaturea 'have, there-
[mb, pasted enaUing statutea, applicable to
8Ut« courts. Judicial power to that effect was,
Mad is wanting, without legislative enaetmeut,
•vea In courts of general jurisdiction. Con-
gress has not attempted to invest the federal
Murts with the power now claimed tor them
ar tiie plaintiff, nor could Congress give juria-
etion bejond the limitations of the Constitu-
It
I contended for the defendant that the
iriiole current of decisions runs against the ji
rlulii-Hnn nnis BBm-rtoit Ti« l.hn nUinlifT. ''1
risdiction
tk«ra are ...
stands on the bill of revivor, that circumstance
maj, it would seem, be pleaded to such InLl."
Beames's Fleaa in Eq. 304; II Ves. 313.
It is true, on obvious groundi. that a defend,
•at to a bill of revivor cannot plead a plea which
has been pleaded bj the original defendant and
overruled; nor. It is oreaumed, one which
might have been pleaded by original defendant,
but waived or omitted at its proper time.
Beame, obr. sup; Samuda v. Furtado, 3 Bro.
C. C 70.
Nor Is a cross bill liable to anj plea which
will not hold to the original bill, nor to a plea
to juriidictlon, though the oriRinal might be.
B«amea, 310. Because a '•■" =- '- "■
question, the objection is goo
The very point of jurisdiction roJeed by the
plea in this case has been decided in the courta
of the United States, and in favor of the view
taken by the defendants, Chappedelaine et al.
V. Decheneaux, 4 Cranch, 308. Also the case,
Potter V. Rhodes, decided in the Circuit Court
of the United StaUa for Rhode Island District,
Movember Term, 1806. The suit was by Pot-
ter, of Maasachusntts, against Rhodes, of Rhode
Island. Potter died durins the pendency, and
his administrators appeared and were admitted
tM such to prosecute. It then appeared that
one of them was a citizen of Rhode Island, and
the court decided that it had no jurisdiction ror
that eanaa.
The court always looks solely to the record.
There is no case in which they look out of it,
(or the record isalwayaof the parties' own mak.
tng. It is on this ground they always refuse to
f^ into questions of the removal of a party aft-
^r a suit has been inatituted. The onlv quea-
tion is, does it appear on the record that the
partiM are citizens of different States; and this
ft|mearing, the court go no farther.
The law might have been more advantageous
XtO*] to parties litigating *in the courts of the
Oalted State*; but it Is not so, and the lawmuat
prorail. There are other cases of great hard-
ship, and produdas great embarrassment i the
esse of all the psraes being required to b« cttf-
isns of another StatA. TUs Is a hardship, tat
it cannot be helped. The law is poaitive^ sad
the courts are obliged to obey it.
The bill of revivor aays tbe original suit has
abated, and aaks to revive it aa a controversy
between the administrator and the defendants.
While the matters in dispute between the orig-
insl parties may remain, there may be others
which will be raised by the bill of revivor, and
these will be between citizens of Rhode Island.
exclusively.
Supiwte it shall become necessary to file s
cross bill, It must be filed b^ a citi/en of Rhode
Island against another citizen of that State.
This seems to be conclusive Of the queation.
Mr. Justice Story delivered the i^inion ot
the court:
This is the case of an appeal from tbe CSrcutt
Court of the Dutrlct of Rhode laUnd. Ths
original cause waa a bill in equity brought (7
Willard W. Wetmore, deceased, a citiieD of
Connecticut, asainat the defendants, UeniT
MathewBon and others, all citiiens of Rhode
Island, for an account upon certain tranaao-
tions set forth in the bill, and with a prayer
for general relief. After tlie cause was at iaaus
upon the hearinK, it was, by agreement of the
parties, ordered by the court to be referred t*
a master to take an account, and pending ths
proceedinga before the maater, the in totals
died. Administration upon his estate was duW
taken out by the present plaintiff, John u,
Clarke, in the SUte of Rhode Island; the laws
of Rhode Island requiring that no peraon not
a resident of the State should take out letters
of administration ; and also aiskiog such ad-
ministration iudixpenasble to the prosecution
and defense of any suit in the State, in right
of the eatate of the intestate.
Clarke filed a bill of revivor in tbe Circuit
Court in June, 1834, in which he alleged him-
self to be a citizen of Rhode Island, and ad-
ministrator of Wetmore, against the defend-
ants, whom he alleged also to be cittzena of
the same State. So that it was apparent upon
the faee of the record that the bill of revivor
was between citizens of the same State. Upon
motion of the defendants, at tbe November
Term of the Circuit Court, A. D. 1835, the
court ordered the bill of revivor to be disaiRSed
for want of jurisdiction; and from thia decretal
order the present appeal has bean taken by
the appellant.
The case, as it was decided in the [*171
Circuit Court, is reported in 2 Sumner's Rep.
2fl2, zes, and the ground of dismissal was
that the bill of revivor was a auit between clti-
7.ens of the same State. The Judiciary Act of
17SB, ch. 20. sec. 11, confers original jurisdic.
tion upon the circuit courts of all suits of s
civil nature at common law and in equity,
where the matter in dispute exceeds the sum or
value of five hundred dollars, and the United
States are plaintiffa or petitioners, or an alien
is a party; or the suit is between a citizen of
the State where the suit is brought and a citi-
zen of another State. If. therefore, the present
had been an original bill brousht between the
esent parties, it is clear that it could not hi
_jen maintained: for althongh the plaintiff
eooU ni* ia sntre droit, and ss sdministrstw
171
ScpitKiut Cbtmt w TUt Umib Bc&«>l
of a cEtlzen of another S'ate, yet th« suit vould
be deemed a coatravera; between hin and the
defendant!, and not between hii Intcetabe and
the defi'ndanta. Thii is the neceraarj' result «f
the doctrine held bv thi« court in Chappedvlatne
T. Dwheneaux, 4 &Bnch, SOS, and Childrew v.
Gmorf, 8 ^lieat. 642.
The Circuit Court treated th« preMBt caae
u falliuE within the lame predicament, tn tbU
we are Ol opinion that the court erred. The bill
of rerlvor was In no ]uat mrm an original
■uit; but was a mere continuation of the original
suit. The partiM to the original bill wenclti-
sena of diffurGiit States, and the Jurisdiction of
the court completely attached to the controver-
sy; having bo attachpd, it could not be deveated
by any snli-'r'qnpnt event*, and the court had a
rishtful autliority to proceed to a final deter-
mination of It. If, after the commencement
of the auft, the original plaintiff had removed
Into and become a cltiien of Rhode Island, the
Crlsdiction over the cause would not have
en devested by aueh change of domicile. 8o
it was held by thia court in Morgan's Beira v.
Morgan, 2 Wheat. 200, 297; Mollan v. Tor-
rance, D Wheat. B3T; and Dnnn v. Clarke, B
Peters, 1.
The death of either party pending the ault
does not, where the cause of action survives,
■mount to a determination of the suit. It might
in suits at common law, upon the mere princi-
ples of that law, have produced an abatement
of the suit, which would have destroyed it.
But in courts of equity, an abatement of the
(uit by the death of a party has always been
held to have a different effect; for auch abate-
ment amounta to a mere suspension, and not to
a determination of the suit. It may again be
put in motion by a Inll of revivor, and the pro-
ceedings being revived, the cause proceeds to
172*} Ita 'regular deterpiination as an original
bill. The bill of revivor la not the commence-
itient of a new suit, but is the mere continua-
tion of the old suit. It is upon a ground some-
what analogous that the circuit courts are held
to have jurisdiction in cases of cross bills and
injunction bills, touching suits and judgments
alreudy in those courts; for such bills are treated
not strictly as original bills, but ai supple-
mentary or dependent Ulls, and so properly
within the reach of the court; although the de-
fendant (who was plaintiff in the original suit)
lives out of the jurisdiction. A very strong
application of this doctrine la to be found in
the case of Dunn v. Clarke. 8 Peters, 1, where
an injunction bill was sustained, although all
the parties were citizens of the aame titate; the
original judgment, under which the defendant
in the injunction bill made title as the repre-
sentative in the realty of the deceased, having
been obtained by a citizen of another State in
the same Circuit Court.
But if any doubt could upon general prind-
file* be entertained upon this subject, we think
t entirely removed by the 3 let section of the
Judiciary Act of 17aS, ch. 20. That section
provide* that where, in any suit pending in the
owirts of the United States, either of the par-
ties ahall die before final judgment, the execu-
tor or administrator of such deceased part^,
wlto was pUintifl^. petitioner or defendant, in
<aa* tha CMua at fictloB doth bj law suivive.
sbidl han full power to prawuto Of iAMi
any suoh suit or acUoD until final jndgMMt,
and that tbo defendant shall be obliipid to U-
swer thereto accordingly; and the eouft befbn
whom tbe Muse is depending ik HmpaWend
and dineted to heat- and detirmiUe the aasa.
and to lender Judgment for or againat Ute u-
eeutororadmiiuitiator,aBthe case may require.
Other kmldliary provIsiDQB are made to carry
tUi BMactment Into effect. Now, in thia aec-
tion, Cmigreaa manifcatly treat the tvvivtt it
tbe suit by or againat the reurcaentatiVe <A the
deceased as « matter Of Hghti hbd aa a mue
cimtinuattim ot the Original auit, without aay
distinctlOB aa to the citizenship of the reprc-
aentAtlve, whether he belongs to the same Sute
where the cause is depending, or to anotbo-
State. Of the competency of Congress to past
auch aa enactment under the Constitution ao
doubt la entertained. The present caae hlb
direetlT within its purview; and we are thtft-
fore of opinion that the decree of the Cirent
Court dismissing the bill of revivor ought to bt
reversed, and the cause mnanded to the CIrerit
Court for further proceedings.
I take this opportunity of adding that I fnlly
concur In all the 'reasoning of thia [*1IS
court on this subject. After tbe decision had
been made in the Circuit Court, upon mate
mature reflection I changed my original opa-
ion; and upon my expressing it tn the Ciraiit
Court, and upon the suggestion of the judges
of that court, the case has been brought hen
for a final determination. I hope thatt 1 ahafl
always have tbe candor to acknowledge ny
errora In a public manner, whenever I have W
eome convinced of them.
This cause came on to be heard on the tm-
script of the record from the Circuit Coort <rf
the United States for the District of Rhode
Island, and was ar^ed by counsel j on consido-
ation whereof, it i* now hereby ordered, ad-
judged and decreed by this court, that th*
decree of the said Circuit Court dismiaaing tk
bill of revivor in the cause ought to be, and the
same is hereby reversed; and that this cans
be, and the same is hereby remanded to tkt
said Circuit Court for further proceedings !■
be bad therein, in conformity to the opinioa d
this court, and according to law.
ANBOM THOMAS.
Judf^s' knowledge of facts as againat Jodlda)
evidence on trial of writ of right before graW
It Is rrror on the trial ot a writ of nrtt bcM*
the grand aailie to prevent the iDtrodnctloB rf
wrtlten crldence: because In ■ trial brtwcee fls
demsadaDt. oITerlng the teetlmosT. and a defH*-
■nl clalmlDg la opposKlen to the dnnaDdant. oato
tbe same title with (hat ol the durenteiit. belm
tbe araad aeslae. thp conrt had trrr-'>-ntl* MB*
laai tbe no* Mt ep to th* wrtttea siHmw
BiAiMTusr V. Thomas.
in
■rhlch tt hud beta pmdund, dFf Lded that It la no-
wlw traded Id c«tab11ib i irnBl title to Iba land In
' ] th« demandiDt.
-Dt bad a riMbt In plan before the
_ _.- ._. evidence wliIi:!! ibe tboucbt mlgbt
tend to eatibllah bn rl(bl at projirrtf. which had
rleht - "
be euBpeteiit (Tlden.. ._
tba compcleDCj itf whieb nalfalaK
mliBt applj
tbe ■ • •
0 It.
icb eildeoce before tbem. tbal
-_ It tbt InatrnetlotK of the coii
,« at the cue, wltbout wbleb the;
luld n
repoattorr of tb* adjudlcalloaa
Than la a lal.. .
Bt cDurti tbao the ... _.
Ihelr daelaratloD of tham ka
ERROR to tk« Dittrict Court of Ute United
SUtea for tha Norttwrn IXatriet of New
York.
Thia was a writ of error proaecuted bv the
demandant in tha Diitrict Court of the Nortb-
«rn Diatrict of New Yoric, in a writ of right
•ued out by ber. The caae waa full; argued
by Mr. Hrer and Hr. Jooei for the plaintiff in
error, and by Mr. Beardaley for the defendant.
Tbs judgment of the District Court wai re-
vaned on a atngle point, the rejection of eer-
tain evidence offered by the plaintilf. No opin-
ion waa given on any oilier question in the
cauae, and the arguments on the numeroua
pointa presented to the court, and argued by
the counsel for tbe plaintiff and defendant,
therefore omitted.
Mr. JustiM Wayne delivered the opinion of
tb« court:
We will direct our attention to a single point
hi thla cause, because it ie tbe moat Important
in principle and prax:tice, and is, in our opin
ion. concluaive of the judgment which tlii)
eourt must render upon this writ of error.
The tenant in the writ of right, upon the
trial of the cause, baring ^ven hia evidence
•aid reated hia cauae upon it, the demandant.
ITS'] upon *the court'a deciding that tbe ten'
•nt bad proved enough to put her on the
proof of the miae on her part, gave cerlai
oral testimony in support of ber right, with a
exemplification of a decree of the Court of
(niancery in tha State of New York, under
tbe seat of the court. The counsel for the
tenant then inquired whether the demandant
intended to offer Miy new or different evidence
from that heretofore offered by her in other
trials had in that court in writs of right, by
tl)e demandant againat Henry Huntington and
others, for other portion a of Cos by 'a Manor,
claimed by the demandant, by virtue of the
Mme title deeda by which tiic premises in ques-
tion were cleimed. To thia inquiry the de-
mandant replied that ahe had no other or dif-
ferent evidence) whereupon the counsel for
the tenant objected to the evidence, which he
then understood was to be offered by the de-
mandant— alleging that it had been given in
avidence on former trials in writs of right be-
tween the demandant and Henry Huntington
and others, for other portion* of Cosby 's
Manor: and had been solemnly considered on
• motion for a new trial in ttip cause of tbe
•aid demandant acainst Huntington; and that
it waa then dpcid^d by this court that the evi-
dence of the demandant then olTered. and now
Intended to be offered, In nowise tended to es-
UMUb ■ legal title to any portim of tbe land
t Ij. cd.
la Ooabr^ Manui, now m •eatnmny. tWt
tbe evidence, therefore. Intended to b» offered
b^ tbe demandant, would have eatabliihed no
right or title in ber to the premiaea in queation,
and wna immaterial, and irrelevant. V'here-
upon the eaid }odge decided that inasmii.;fa aa
the evidence to make out the aaserted title of
the demandant to these and otlier lota in Ooa-
mandant, againat the tpnanta of land in Coal^
Manor, whereby he had become fully cob-
niiant of the same; and that, aa he had eid-
emnly eonaidcred tbe same on a motion for 1^
new trial In the case of Henry Huntington,
at the suit of the demandant, and had cohm
to the conclnaion that tbe said evidence tended
in nowiae to establish a legal title to any por-
tion of the land in controversy, in tbe said de-
mandant; he was, therefore, bound to overrule
tbe same, aa insufficient in law, and therefore
immaterial and irrelevant. The demandant
excepted to this deelswn, stating ahe would of-
fer each piece of her testimony Sfparately and
in succession in evidence to the grand aa-
aiie. Aa they were offered, they were rejected
by the court.
The evidence rejected were several docu-
ments, serving, aa tbe demandant supposea,
■to establish that she was aeiied of the [*13t
premiaea in queation; and aa each waa pre-
aentcd. it waa overruled by the court, the da-
niandant excepting to the deciaion. Certain
facts were then admitted to be In evidence, not
embracing, however, any point to which the re-
jected teatimony waa supposed to apply; and
the court delivned aa its opinion to the aesiu;
that by the practice in a writ of right, the ten-
ant was required to begin by offering hia
testimony. That this rule seemed to imply
that he must adduce some teatimony. altbough
to what extent or effect, seemed not very deer
from any treatise in thia antiquated form of
action. In this instance, the proof adduced
by the tenant did not ahow title or poasesaion
in himself. Still he deemed it aufUcient to put
the demandant to the proof of her aeiiln or
better title in herself; and she having failed to
give such proof, was not entitled to recover,
and that the grand assitc ought, therefore, to
" id a verdict in favur of the tenant.
To thia charge of the court tbe demandant
excepted. This statement, it seema to us,
shows the error in rejecting the evidence. If
the demandant waa put to the proof of her
better title before (he crond •*■'»>.
e sworn to say which of the parties
had the "mere right to have the mesauagea
and tenements," under the direction of the
court aa to the lew applicable to the facta; tha
demandant had a right to place before the aa-
size all the evidence which she thought would
tend to eatabllah her right of property, which
had been ruled to be competent evidence in
another suit; against the competency of which,
nothing was objected In this suit: and the aa-
iir.e had a right to have auch evidence before
hem, that they mifrht apply to it the instrue-
ions of the court, or law of the case, williout
vhich they could not do ao. Where the eourt
undertook in this case to give what it said waa
the law of the ease, because It ruled the law
upon the aane evidence in another ease, reject-
104S
i7n
Bm*MB OoDBT or t
llf K la tU«; w« hara lU own aditiiMioii thftt
Iha trldeuo* waa eoQipetest In that
■weMwily w«« competent in the case before it,
If tbe pBpen offered were duthcnt legated in ■
way ai the law rsquim, or were of that cli
which do not need official authentication
proof bf witacsHS. No objection of tliat
kind waa made. The footing upon which the
rejactlon of the evidsnce is put by the court, it,
tut having fTequentl]r examined it in other
trisia, and coniider«d it on a motion for
trial, In the case of Huntington at the i
the demandant, it had come to the eonclueion
tkat tlM evidence tended in nowise to eatablieh
a legal title to an; portion of the land in
I1T ] 'controveniT, in the demandant-
Nothing wai uld of iti inadmiiailulitv. The
evidence waa excluded upon the ground of past
adjudication, upon the court's declaration of
that fact, without record evidence of any inch
r judgment. There li a ufer repoai-
of them is no proof of their existence,
in what way is it attempted, in argument, to
maintain the eorrectneu of the rejection of
this evidence! The learned counsel of the
tenant, in his very able argument in support of
it, saya it was rightly rejected, because it did
not prove nor tend to prove that the demand
ant was seised of the premises in question;
that tbe deed which made the Brst Ilnic In the
chain of the demandant's title was void; and
continuing his anatysia of the rejected testi
mony through all the chain, from Ten Byclc'i
deed to its last link, Mrs. Livlus's will, he ar
guea that in no event can the demandant show
that eeiiin in herself which will oust the ten<
•nt- May not the demandant very well reply,
how do you obtain your knowledge, and come
to your conclusion upon my title T Is it upon
evidence in the cause, or upon that which, -'
your instance, was rejected as evidence?
the Tatter, can it be used upon an exception
iti rejection in a trial upon a writ of error sued
In another trial in the court below, to show
what will be the legal effect of that evidence
upon the demandant's title! The object of
the writ of error is to make these rejected pa-
pers evidence, and until they are so made, they
cannot be used for any purpose. This court
cannot, nor can the court below judicially
know what the legal effect of these papers will
be upon the demandant's title, until tbey have
been below as evidence; and tbe error in re-
jecting them arose from the court's not having
discriminated at the moment between judicial
evidence of a fact, and the knowledge which
it personally had of that fact in the course of
its administration of the taw.
We purposely abatain from conaldering any
other point in the argument of the coiuieel for
the tenant, as we could not do to without dia-
<m*slng the rights of tbe parties, which are not
put, by any exceptions on tbia record, before
tlila court.
Ut. Justice Baldwin dlssentad.
did not ait In this e,
WILLIAM G. W. WHITE, AppetlM.
Equity having granted relief for part will art
send parties to law as to part — pleadint—
sufficiency of evidence— preference of eredilsn
— fraud and injury — creditor compouDdiiif
debt with knowledge of all facts must sliidt
The doctrine at a coart of ebancer; )■ easM N(
•peciae perrurniaTice baa retctean, ordtnarilj. M
eiecutor]! aBrcemeDIs tor the converaDCc ol laifc
and U rarelv spplled to contract* airectlDK perMul
propcrtT. Where tbe reller prated for In a bill li
Iha dellrsrr to tbe nimpUlnsDt of last ru men U U
wblcb be la aDtllled. anJ not tbe execution of ai
riecotorr cODtract, no furtber tbao to O^wtt Ot
ommiDt tbe complatnaut baa been compeltH M
Br SsaloBt tbe terms at the contract, cbaaenr
■ Jnrladlctlou at (be cauae : and tbe court w
end tbe cause, without aeadJnK tbe partita to laa
as 10 pan. bsTlns grsnced relleC tor part.
Tbe rule In chancer; Is. If the anawer of the *-
teDtlaot admit! a tact, but iDalati on mstter bj w
of avoidance; tbe <.omplalnanl need not prove th>
tact admltlHl. but the delendant nust ptove tbi
tally t
« of ecmpoaltlan tkit
III pern
creditor U not I:
ind. ni
e ritkl
ictlbtu
. tbe aolc r!
modKylng Ibt flret contract, ■ ■ - -- --^'
' e:indltloaa ot Ita dlacharge. ..
palates tor partial parmenta. and the diMoc
U la paj, the condition U take part la broksa.
-- ' "Dtract lortelted. and la no bar lo tbt
t ot action.
compasltloD tor a debt. I17 wblcb one part}
to aellrer bxhIIb to tbe amount of eevNtf
per cent. In aatlafactloD ot a debt FTivAdim In
Ibousand dollera, and amllted t
one dollar and tortj-01 "
ST "
o dcseiTr notice.
equity Id relatloa t
alleRM. I> laid don
iDBUrance Compan/.
against wtaom the in
— '■— ■- — Gu|-
In Couard T. The AllaatM
Peter*. 297 "11 tbe pnMa
I Is alleged, should be prara
illty of It ID anj number «f la-
lICDlar art aonaht to te
•TOlded b« n-- ._.
caDDOt be asserted wltb Ibe otfarr frauds- unlna b
some way or otber It be coDnrcted with. Or tona 1
In equity, as in law, trand and lajnrr ■«! cab-
car to furnlsb grouDd lor judicial action- A amt
fraudulent Intent, UD accompanied br an? ti]*
rlotis act. Is not tbe aublect of Judicial eognlsaaea
Fraud ought not to be conceived : It mual kt
proved, and eipreatly toood.
By tbe common taw. a deed of land la valid wia-
ont reglBtratlon ; and where reglaler acta r«i«b«
deeds to be recordHl, tbey are valid until tbe tW
preacrlbed by tbe statute baa ciplrrd ; and. If
recorded within tbe time, are as effectual traa tbi
date of eieratlDD aa If no register act existed.
Wbare there la clearly a bona llde grantor, tki
grant li not one of those conveyances wltUa nS
statutes asalDtt fraadulent conreyanees-
W. purchaaed a lot of groond In the eItT ■
tVatblDitOD early In 1S29 for one thouaand tN
hundred and thirty-two dollata. on a credit ot bm.
— 'wf..°conTwed"lt"'o a"truatee"(c»r toe' bnettM
the Infant cblldrea ot W. Tbe IsaproveBeata ta-
NoTB. — raymaat •( part of debt as aatlstBCt)<B
e( tbe whola
Aa a general mle, payment of part af a d(M b
isas
lM« tk« dMd. aBiHiiiM In nlu ta Uitm
dollui. ftnd «ttcr the dwd to twvlTi handnd dol-
Ian, or flftccD handred dolUn. Ba failed In De-
«ambfr, 1S3S, and tlie prcpertr vaa then worth
about ill tbouaand loUara. "-''
■ br Bmllb wi
daj or tba expiration ot the time preictlbeil for re-
eardloK ■ach dted by the ■titaie of Marjlsnd.
The partlea who made a eonti>o>ltlon ot ■ larie debt
•■■ to them br W.. In wtalvh comcoslllon thef ni-
CUaed • lou ot tblr^ P«i cent., knew at the time
ot ttw compoaitlon of the conreiance o[ thli prop-
ertr to the Infaat eblldran at w, and ot hU lanre
ImprovemeDt* on the lame, and made the eoDtpoiil-
tlon with thli knowledn. The court reluHd la de-
dare the agreement of eompoiltlon void beciiiiti>
•f thia traoBactloQ. Ho who pqrchanoa unaotind
pntpertr. with knowledEa of It* nnaouDdneu at the
time, cannot maintain an action aialnsl the tellEr
So It one compounda a debt, or makca any other
eontract, with a full knowledgp or an the facta,
■etlns at arm'a lensth upon hla JudEment. and fails
to macd agatoit loin, be muat abide br the can-
•eqnence*. Neltber fratid nor mlatake can be Im-
puted to tnch an agreement.
If, apon tallnre or IcaolvencT. one creditor goes
Into a contract ot general eompoaltlan common to
tba othera, at the lame time baring an underhand
■crarment with the debtor to reeeiia a larger per
Mat., lucb agreement la fraadulent and Told.
Tba rale cutting off underhand agreementa in
eaae* ot Joint and general composltloni, aa a frand
Dpon tbe other com i>oun ding c red) tore, and be-
came focb agreenieutB are aubTerelre of (ound
■wtrala and pabllc polkj. haa no application to a
where each creditor acta not only for hlmeelt.
J 'position to every other crndlior ; all
ying on tbelr vigilance to gain a prtorl-
ilcb, it obtained, each being entitled to hav*
bat In
S."A
Mtlataetion, cannot be queatinDCd.
The debtor may prefer one creditor, pa; hiM
(nlly, and eihauat hia whale property, leaTlng
BOtDlng for other* equally meritorloa*.
Before a comnoiltlao was made by a debtor with
two of bla creditor*, wbo were partners, in which
It wai agreed tbat certain nolea given by bim la
tbe credltora ibould be dellTcred up by blm, two
OC tbe notea. among tho)e agreed by the compoaitlon
to be detlvertd up, bad Iwen. before tbcy were at
malurlty. passed away by the credltora. The debt-
or asked, by ■ bill Bled agalDgt hi* creditor*, with
whom be bad made :be compoaitlon, that tbe court
B. B. Co. S Boa. 4SI, 504; Hnldon t. WbUlock,
1 Cow. S06 : Uawley v. Foote, 16 Wend. Gie ; Nei-
■on V. Weeks, 111 Has*. ZZB : Rea *. Owens, ST
lows, SeS ; Falmertou v. Buitord, 4 Den. IBS :
merce r. Pierce, 20 Barb. £41: 4 Bob. 2TB; SI
N. T, 498 ; 46 Barb. ST : 44 N. Y. 204.
Payment ot a leas snm, though accepted In mil
of a certain debt, la not good a* an accord and
■atiatsetlan. Harrison v. Close, 2 Johns. 448 :
SeymaDT V- Ulntura, IT Jobn*. ISS ; Dedcrlck T.
K«man, » Jobns. S3S ; Bill v, Beebe, 18 N. Y. C"
Nelson S8 N. J. Law, 8S8 ;
ShwaiU, SB N. Y. 444.
""--"lent of principal
.- Brannan, S John*. Si
But when there Is a bona flde dispute aa to tbe
■mount due or as to whether aaythlng la due, the
payment and acceptance of a less sum than that
Actually owing Is a good accord and aatlatactlon.
Brooks v. Moore. ST Barb, 393 ; Pardee v. Wood. S
Hnn, 684 : Loneridge v. Dorvilie, SB.* Aid. IIT !
Tuttle 1. Tuttle. 12 Uete. SSI; 4 Deo. ISd, IBS;
Farmers' Back ot Amsterdam T. Blair, 44 Barb.
062: ST Barb, ISS; 2S Barb. 253: 14 Barb. S90;
— '^lli ». Nave, 62 UUw. 4B* ; Tyler Cotton Press
'. Chevalier, S6 Oa. 494 ; Ogbom t. BoDman,
Medal i V
Co. V. CI
BS Ind.
, or, It ao. Is
doobtful in fact Or mw, hu; Miim, no maiier now
smoll, given and received tn uitlatBction of the de-
mand, will hgallr satisfy It, howsrer large. War-
- ■— ^ Conn. SSB, 662; McDanieli t.
. Woodbury, 0
rea t. Bklnner, ]
•i>ii>iii. 21 Vt. 222; Do:
isb. 148, ISO; UcCail v. 1 , .„ „.
So, It personal property be received in mtisfac-
:. 2B Barb. 24i.
-, .. ,..jonBi proiKnT do received in ••" "
, It win i» good; no matter what the ....
Doaglass T. White. 8 Barb. Ch. 621; Blnckley
_. — «_„ _ g^„ ^^ jj^ji ^uji
Mm 11 A
should order thaa* »ol« to be delivered ta Um.
Held, that tbe decree at Oe Circuit Court. f«tDf
Ing to order thsM notes should be delivered npL
ON appul rrom the Qreuit Ocnirt of tka
United Statea for the IDountr of WaaUnf-
ton in the District of Columbia.
In ttw CSrcuit Court, tha appellee, WflUam
O. W. U-hite, filed a bill uainst the appellant!,
charging that on the 2d of Jul^, 1832, the com-
plainant passed to the defendants, Clarke A
Briscoe, his twenty -sis promissory notes of
that dtite, each for the sum of two hundred
and •erenty-foDr doUan and sixty-seven cents,
payable monthly, from siztaen to forty-four
months, making the sum ot sereu thouaand
one himdrcd and forty-one dollars and forty-
two 'cents; three of which said notes [*tSO
were lubsequently passed by said defendants
to Clagett A. Wnahington. That on the 30th
December, 1833, be entered into an agresmeBt
with the said Clarke Jt Briscoe, to antieiuite
the period of credit cm the said notes, and to
pay the said sum of seven thousand one hundred
and forty-one dollars and forty-two cents, in
goods and merchandise, at aeventy cents in tbe
dollar, on the price the said goods were marked
to have cost; that tbe said Garke A Briscoe
ajfreed to receive the said goods and merchan-
dise, on the terms aforesaid, in full payment of
the said sum of money, and to deliver up the
aaid notes then in their possession; and speed-
ily to take up such of the said notes as haid
been negotiated, and to deliver the whole to the
complainant, that they might he canceled- The
comptainant states that he fulHIW his part of
the agreement in every particular; that he de-
liver^ to aaid Clarke ft Briscoe, and they re-
ceived goods and merchandise according to Um
term* of the aaid contract to the full amount
.. Hitchcock, 20 Johns. ,«.
So, If part be paid anil received In full utisfsc-
tlon before tbe whole Ig due. Brooks v. Wbile, 2
Uetc. 263; Ooodnon v. Smith, IB Pick. 414; BIbree
r. Tripp 14 M. A M. 23.
In such case* tbe agreement cannot he said to be
~ eonBlderatloD, and that wonld be a liar to
* tbe residue. Arnold v. Park. 8
But
. .t Is deemed to be
tbst. unless tbe
Id. 822; War
Dfll. 118 a
. Mnae. OT Barb. 894 ; Cumn v
, -editor givfa s receint tw fnlt.
upon payment of a portion ot an nndlspnted a»
count, he la not concluded thereby fioiu recover-
ing the balance, sltbangh the receipt was glren
with knowledie. and there was no error or frand.
Byan v. Ward, 48 N. I. 204 : S. C. S Am. R- BSa ;
Barrlmao v. Harriman, 12 Gray, 841; Miller v.
Coatea, 68 N. Y. 609.
Ree. fiirlber. where the rale Is ertlclsed as rigid
and (ecbnirsl. Johnson r. Brannan, B Johna.
268, ST2: Kellogg v. Richards, 14 Wend. 116. iee
also Bmttb t. Bollon, 1 R. I. 19T : Harper v. Oi«-
bam, 20 Obio, lOS: and note to Balta v. Peters,
• Wheat 060.
»««f
IM
CoUSl or TBI UnTB) UtATEB.
isa
tgnti t« be ddiT«red, lava a trvAion of one
dollar ind forty-one cents, which wbb Bubae-
quentty tendered and refiwedi but that the said
Clarke & Brisooe. having obtained posapasion of
the said goods, retain the said aotts, and refuse
to perform their part of the aaid agreement.
The complainant, m a aupplenipntsl bill, states
that Clagett A Washiogtoii, to whom three of
the laid notes bad been passed bj the defend-
ants after the date of the aaid a^eement, in-
stituted suits against the complatuant, on the
said three notes, in the Circuit Court of the
Matrict of Columbia; and that bj judnnent of
the said court, the eomplainaot has been ob-
liged to pa;, and had paid to the said Clasett ft
Wash i net on, the sum of one thousand and
eighty-three dollars and fifty-five cents.
said unpaid notes to be canceled, and to pay to
the complainant the said sum of one thousand
Mid Mgh^-three dollars and flfty-five cants, bo
paid to Clagett ft Washington, and for general
relief.
The answer of the defendants, the appellants.
admit* that the comp'ainant gave llii- several
promiasory notes mentioned in the bill.iHiil Ihiit
three of the same were passed to Clo'^rll <t
Washington, as stated; and they say llie roii-
sideration for the notes, was the sale of a lsri;e
invoice of goods, mode about the time of lli>'
dates of the notes, or shortly before; tliat thr
terma and conditions of such sale were that tlii
complainant should punctually take up and
pay the notes, as the same should respectively
181*) fall due; and in •consideration of the
complainant's solemn verbal ple<!ge and asaur
ance that such notes should be so punctually
taken up and paid; and upon the fsith and con-
fidance of such pledge and assurance, the de
fendants agreed to deduct five per cent, from
the amount of said invoice, and according'^-
from the aggreg&te amount, for which the
complainant pasaed his notes; on account of
said sale. The defendants deny that they did
make the agreement with complainant, respect.
ing the compromise of their claim against the
complainant, and the canceling of the notes, in
the terms and upon the conditions set forth in
the bill ) hut they admit and aver that, about the
time mentioned in the bill, in consequeiice of
hearing the complainant had failed in business,
and was compromising with his creditors, a con-
TCrsation and arrangement did take place be-
tween the defendant, Clarke, and the complain-
•Jit; In which the defendant asked him upon
what terms the complainant would settle the
whole claim of the defendants — not merely on
what terms he would settle the amount of the
notes— upon which complainant offered to settle
it at sixty cents in the dollar, and pay in goods.
Clarke answered that he understood the eom-
plsJnant had compromised with other of his
creditors at seventy cents in the dollar, and
hoped the compUinaDt would not think of put-
ting off the defendants with less; and the com-
plainant at length agreed to par the defendants
in goods the whole amount of their claim, at
the rate of stuventy cents in the dollar, and pay
the balanea, tIe., thirty per cent., when he was
ablei but insisted that thej should take the
goo^ In masam, without srleution, as they lay
arrangement had been so agreed on liiil wwi
themselves that anything was said betweia
them about the defendants' getting up aid
cancelina; the complainant's notes: but, after-
wards, tney admit a coiwcrsation on that sabjeet
did ensue between defendant Clarke and the
coniplainant,in which it waa undentood andar-
raiiged between them that, upon the settlement
of the defendants' whole claim by paying the
same in goods at the rate of seventy cents ii
the dollar, the defendants should get in and
cancel said notes; not upon the settlement, ia
that node, of the amoimt of the notes merely:
such was not the understanding of the parties,
at least not of either of the defendants; but the
true amount of their just claim ag-.iinst the
complainnnt; the amount understood by de-
fendant Clarke at the time was not the ag-
gregate amount of the notes merely, but ot tSt
original invoice; in liquidation of the amount of
which, with *a deduction of five per cent., [*■■!
the notes had been given; and inasmuch as that
deduction had been allowed, npon the fallt
and confidence alone of the complainant'^ p'edge
and assurance to pay the notes punctuaJty as
aforesaid; and aa he had totally failed to eon-
ply with said pledge and assurance, the defend-
ants considered that in equity, indeed, in strict
justice, they were entitled to the amount of the
invoice without such deduction.
The answer of the defendants further slates
that the complainant has not, to the time of
Itling the answer, complied substantially or
otlierwise with the terms of the cotnpromisp, in
the sense in which it was properly iiudemtood
and agreed upon, so as to entitle him at aay
tine to call in the notes given for the goods
delivered to him; that the notes were to be de-
livered to him, on the entire settlement of the
claims of the respondeota on him,henot ba,Tin|
delivered goods to the respondents to tW
amount of the hill, and he having refused to
deliver the goods to the respondents, without
the said deduction. That the goods delivered
to the respondents were the residue or remain*
of the goods originally sold to the complainant.
after he had enjoyed the use and profit of tben
as a part of bis assortment of (pods for eighteea
months; and if the compromise had been car-
ried fully into effect, it would have been a most
hard and disadvantageous one to the respond-
ents. The compromise was not binding on the
respondents, in consequence of the gross frands
Bud impositions practiced by the complainaat
upon the respondents, and his other crediton.
In order to alarm them into compromises iri
their debts with him, as with a mercbant
debtor, who has been subjected by the casualUc*
of trade to failure ; that the wliote matter of tk*
pretended failure of Ibe complainant waa a d>-
libcrate, artful and fraudulent scheme, device
and contrivance of the complainaot to alars
and force his creditors Into compromiaea; whih
he had, in part, ample means to pay off all hb
debts, and have a surplus on hand; that with
these ample means he proclaimed hia inad-
Tency, and was thus enabled to make adraa-
tsgeons compromises with his crediton, ac-
cording to the circumstances of his cre^toia,
and the state of their fears. That preparatery
to this scheme of fraudulent failur«,anddaTiiV
the very season, and shortly before It wma f**-
claimed, ko bad made unusually lai^ pr
PM«n IS
CuBu s( iii f . Wsm.
thMM Ml cMdit, ud bad *o InertaMd hi* rtock
Vf aUOds taucli He)'Otld ftl luiul uuountj mnd
Jtuf kfter he ha<l cdmtlleted Ida f»udu1«it m-
Auniilatioil at atock, Be gave out bii fallufK
111 biulnea* and utaolveDoy, and aet on foot bJ!
liit*] plan of fraudulent 'comprumiBcs, It
«•« under tb* greateat preasure of tlu« alarm,
and whilst it w*a frauduleotlv uaed bv com-
filainant to practica upon the feara of hia cred-
tora, that the defendanta were frauduleatljr
and deceitfully drawn hj him into tuch agree-
ment for a eompromiae U thej ha*e atated and
admitted.
The answer further atate* that it ia thebeUsf
of the defendanta that the complainant had for
•ome time meditated the frauds perpetrated h"
him; and that before he purcliaaed the goot
from the defendants, sometime about the 9th
of Julj, 1B3S, he caused to be entered in the
land records of this count)' a fraudulent deed,
■ettlini; valuable propertT on bia fatnilj', which
bad been executed in the month of January
preceding, and in the mean time kept aecrut.
Thia deed conveys the property described in It
to a trustee, for the children of the corapl '
ant, alt minora, and in extreme youth ; and
not recorded until within one day of the _ .
month a allowed by the law of the Diatrict of
Columbia had nearly expired.
To the tnawer of the defendanta, a general
Tcplicatlon waa flied, and the parties went or
to take de^sitiona to maintain or deny thi
allcgationa m the pleadinga. No evidence waa
given to anstain the assertion in the answer
that the complainant agreed, at any time, to
Cy the residue of the debt to the defendants, if
should be able at any time afterwards to
ray the same. The evidence contained in these
epOEtitions is fully atated in the opinion of the
The Circuit Court gave a decree In favor of
the complainant, according to the prayer of th«
bill, and the respondents presented this appeal.
••Id Mr. Key for the appelli
The counsel for the appellants contended —
1. The complainant has laid no grounda in
hla hill for equitable relief. Neither the aeree-
ment !ti.clf. ss alloged in the bill, nor any of the
(Nrflateral circumstances, being of a nature to
r«ll for speoiHc performance, or any other
lief in equity.
2. But whatever the terma or the nature of
the compoaition, and however flt it may be in
It* own nature for apeciflc performance in
equity, the whole of the complamant'a equity ia
repelled by a countervailing equity in defend.
KDta, from hia promise, aa one of their concom-
itant inducementa to the composition, to pay
1*4"1 the full amount 'of the debt, when able
to do an; and from the fact, both averred and
inoved, that be was able to pay the whole debt,
3. A compoaition of a failing trader with bia
rreditorg, being atrictisaimi juria, muat be ful-
filled by the debtor to the letter; and any
failure in complying with its terms, In a minute
particular on hie part, however far he may go
In part performance, vitiates and annula the
hig, he baa failed to fulfil the composition in
tomfnia; and ke haa, to tbia iAj, aomething
furtRer t« do ta ordef to fflMT ttt f«t i» imt
Bot even been decreed to fnTfll It
9. TVete Is no evidence in the eaOMi fvrrt-
petcnt and aofltclent to overrule ao Ameb «f Urn
aiHwer ta denies the agreemeirt for compoaitioD
&l]egci tn tbe tdlf, and avera a matariallr dif-
ferent a^e«flmri.
9. Taking tb« tent* of tbe eompoaitioB 1« ht
auch aa the answer ar«K, and puts in the plaea
of what it denies; thers appean a atill mor«
important, palpable, and »tal breach of Ita
terma on the part of complainifAt.
7- The actual frauds, which tbe anawar
ehargta. In the elaboration of the abhene of
artitictal and feigned failure and inaolveMer for
defraudlns tbe creditors of their dues, and orar'
reachtna tbem with unfair compositiona nndaf
deceitful preteats, ara fully made out in proof,
and are snffli^eBti an] more than anfflcient, to
other credftoTS.
a. The Ineauality time it Ma varlooa ecm-
poaitioni with hla creditcn (all th« otber dr-
cumstances of fraud being oftt of the questtooT
g a fraud, per se, both at law nd eqiuty; an J
ulEeient of itself, either at law or !■ equity, to
vitiate and aet aside each and evefT of tb*
compositiona, from the lowest to the higtuitt.
The counsel argued that the actnal prodfa iiT
le case not on^ sustain the anawer on tlH<
aecond ground of defense throughout, but make'
out a far stronger caae, hi detail, than tba
general avermeata of tha answer had repre-
sented It.
They argued aa to tbe long concocted and
prepared acheme of fraud, with a view to
failure in business and feigned insolvency, and
to consequent compoaitiona with creditor*,
under the preaaure of alarm for the safety of
their debts; two prominent facta are. in addition
to many minuter circumstances, fully and con-
clusively proved. First, aa to the aettlement
of certain real eatate on hia minor children, aa
'stated in the anawer. It appears that [*ISK
in lf)39 be purchased the property in hla own
name and on hia own account, and gave bta
notea for the purchase money by in stall ments,
and waa to receive a conveyance upon payment
of the laat inatallment; that he duty paid up all
tbe inatatlments out of hia own proper means
resources; that when, upon payment of the
last inatallment, he called for a conveyance, he
took ft to his brother, a youth of aeventeeu or
eighteen yeara, In trust for his three children,
the oldest of whom was then only Ave yeara
old, and consequently waa lesa than two yeara
old at the time of the purchase, more than
three yeara before; that be had never given tbe
glighleat intimation, during all the three yean
' ' id held and improved the property, Of any
. for hla children, til) he called for sueS
conveyance; and that be had expended about
four thousand five hundred dollara of hla own
money in buildings upon the property — three
thousand dollars ocfore, and fifteen hundred
dollars after the conveyance in trust. The deed
hears date on tbe I4tb January, 183!, and was
not produced for public record tiU the I3tk
.July following, the very day before it would
have run out of date; and in the mean time,
whilst that conveyance was kept secret, and ho
atood forward M the oatenriblo owner of the
10d«
SunuiB Oovit «v T
17, k CMtnMted thla luga debt to tli«
rmdaalt, bj a puidkiM of tbdr Kooda to tht
WBOuat of oeu- thirteen thousand dollon; juat
t«i or deren di.jB befon he produced the
derd, And h«d it comtnitted to public record.
Tbcn ia no cvennent or pretense, either in
pleading or evidence, of kdj good or Tslu&ble
omiidentloo for this lettlement; on tba con-
tzwTf, the terms and recitala of tbe deed Itself,
and all the circumstaocas in evidence con-
duaivelj repel tbe preiumption of any such
conaideration. Second, that in laying in his
atock of goods for the fall aeaaon of 1S33, by
purchases of gooda in the northern cities, at a
time juat before his alleged failure Jo business,
and when he must have necesaarily anticipated
tbe result it it arose from any real difficulty and
tmbarraasment in his circumatancea, he pur-
chased a much larger atock than he had ever
bean accuatomed to laj in; and with alt this in-
Ciwtwd stock or the proceeds, fresh and full in
liand, suddenly and unexpectedly to all the
world announced, not any mere difllculty and
embarraasment in his affairs, but absolute and
hopeless inaolvencj, and an immense deficit of
assets in proportion to his debts; and upon that
footing negotiated hia compositions with hia
creditors.
Aa to the charge of an artiflcial and feigned
IBS'] failure and insolvency, * the actual proof
in the cause is cogent to the conclusion that he
broke full-handed; with abundance of assets
to pay all his debts, and that be made an im-
mense profit from his compositions with his
creditors.
Aa to the charge in tbe answer respecting
the inequalities in hia compositions with his
various creditors, that, also, ia more than sus-
tained in proof: for it appears that whilst he
was compounding with the mass of his cred-
itors at various rates, from forty to eighty-
seven cents in the dollar, according aa be could
work upon their fears of still heavier losses
from his insolvency, he actually paid particular
individuals, whom he found more aagacinua
and firm than the others, the whole amount of
their claims, after unavailing attempts to beat
them down to a composition.
Pending this suit, Clagett ft Washington re-
covered judgments at law against him on hia
three notes passed to them by defendants,
amounting, with interest snd costs, to one
tbouaand eighty-three dollars Rfty-flve cents;
all of which iudgmenta be fully satisHed be-
fore the final decree passed in this cause.
By that decree the defendants are decreed to
refund to the complainant the amount so paid
by him to Clagett ft Washington, with interest
on tbe same from the date of the decree; and,
without delay, to brin^ into court the remain-
ing twenty-tbree of said notes, to be canceled;
which notes are declared by the d«cree to be
foTerer null and void, etc.
The counsel tor the appellants dted 2 Atkyns,
666; 2 Story's Equity, 18; 1 Vernon, 47, 2!0j
2 Comyn on Ck)ntracU, 380j 1 Stra. Rep., 425;
1 Bro. Chan., 167; 1 Story's Equity, 260; 1
Pickering'a Kep. 340; Dickaon, tllj 1 Chan.
Coaea, 103.
Ur. Hatbnry and Mr. Janea, the counsel for
tbe appellee, contended:
1. Tnat the contract between the complain-
ant and defandant of the Uth Decembar, 1S33,
18»
la truly sUted in tbe Un, and bu been fnQj
complied with on the part of the complainaat
Z. That the said contract was made at tht
instance and by the requeat of the appelluta,
without aolicitation on tbe part of the cob-
plainant; and without any fraud or inipoaitka
practiced by bim on the defendants to indm
them to enter the same.
3, That the relief prayed for by the eoa-
plainant below ia within the juriadiction <l a
court of equity.
The counsel for the appe11e« denied all ftand
in the transactions between him and tbe so-
pellants. While the appellee aubetantislly
•and effectually complii^d with his [• III
agreement, the appellants have altogether fatlfd
on their part. The miafortunea of the amwllee
obliged him to make tbe compromises eflecttd
with his creditors; and that which waa entered
into with the appellants was made in good
faith, and was so executed by him. The agree-
ment made with the appellants was that stated
in the bill; and the appellants did not prove ia
the Circuit Court any other agreement. Manj
of the alli'gationa in the answers are not sup-
ported by proof, and they are therefore to havs
no weight with the court in their connideratisa
of the caae.
A court ^f chancery baa jurisdiction to direct
the delivery of notes or bonds, or deeds, wbick
a party cannot, in conscience, withhold. 1
Johns, Chan. Rep. 517; 2 Story's Equity, 11.
The settlement of the real estate waa opes
and notorious. The deed was put upon tbe
public records. The compromise maae witk
the appellants had no conncdion with arrange-
ments made with other creditors, and ia not to
be affected by them. The principles of law
which render a composition with creditors void
on the eround of inequality or concealment, do
not apply to such a case as this. Where a gai-
eral compromise is made, apparently eqosl,
but some of the creditors have been induced ts
assent to it by a private, and more benefidal
agreement, it will be void. But such ia not tbt
case before the court. Cases cited in the ar
gument, 6 East, 230; S Johns. Itep. 2»1; It
Price's Rep. 1S3.
Mr. Justice Catron delivered the opinion af
the court:
The appellants contend the decree should bt
reversed, and the hill dismissed, upon Tariou
propositions of law and fact.
Ist. It is insisted: "The complainant has
laid no ground in hia bill for equitable relief.
Neither the agreement itself, as alleged in the
bill, Dor any of the collateral circumataocH,
being of a nature to call for a specific perfom-
The doctrine of specific performance baa ref-
erence, ordinarily, to executory agreements for
the conveyance of lands, and ia rarelj applied
to contracts afTecting personal property, i
Story's Eq. 28. 38. Nor ia relief aouKht bj
the complainant on this head of jurisdictiOB.
To encumber the case made by the pleadiBgi
with doctrinea foreign to the subject matter
litigated, would tend to confound princinlea ia
their nature dissimilar and separate. The i«-
Itef prayed, ia the delivery to the complainaat
of Instruments to which ha ia entitled. E SU-
IT'S Ea. 12, Kot the axecution of nn anea-
"-- 11.
Cl&hke it al. v. W&m.
188
188*] \arf oontrMt, further "than to decree
the Rniount he hat been compelled to pay to
Clagett ft Washln^on, wliich ib an incident to
the evercise of jurisdiction that coerces the de-
livery of the instnimenta.
So material a part of the trunsaetion being
clearly within the jurisdiction of the court, it
will of course end the cause, without sending
the parties to law ai to part, having granted re-
lief for part.
2d, It IS assumed: "But whatever the terTtiB,
or the nature of the composition, and however
fit it may be, in its awn nature, for specific
pcrformsncc in equity, the whole of the coin-
plainant's equity is repelled by a countervailing
Suity in defendnnts; from his promise as —
their concomitant inducements to the e
position to pay the full amount of the debt,
when able to do so; and from the fact, both
averred and proved, that he was able to pny
the whole debt. Did the complainant, White,
promise to pny the full amount of the debt
when he was able to do eo; and, by this means,
induce the respondenti to make a composition
then to receive seventy cents in the dollar as
partial payment! If this was the contract, and
the complainant was able to pay the full amount
kt the time, he was immediately bound for the
thirty cents in the dollar in addition; and the
respondents are entitled either to have the bill
diamisBcd, so that they may enforce the con-
tract at law for the balance due, or they must
have administered to them in e<]uity the same
relief, by a decree for the thirty per cent-;
founded on the familiar rule that he who seeks
equity must, as a condition, do equity to the
respondents, before the relief can be granted.
We must, therefore, inquire what the contract
was. The bill, in substance, alleges that the
aggregate amount secured by the notes prayed
to be surrendered was Seven thousand one hun-
dred and forty-one dollars and forty-two cents;
that the notes were not due when the composi-
tion was made; that the parties entered into an
agreement to anticipate the period of credit
on them, by which White undertoolc to deliver
to Clarke & Briscoe, and they agreed to receive
of White, goods and merchandiae, in full pay-
ment of the sum due, at the rate of seventy
cents In the dollar, estimating the goods then
In White's store at the prires marked on tfaem
aa cost prices; that the goods were delivered in
discharge of the debt, and the notes, as evl-
dcDeen of it, were to be surrendered to Wbite
on the delivery of the goods."
To this specific allegation it is answered:
•ThenH defendants deny that they did_ make
the agreement with complainant respecting the
compromise of their claim against the corn-
ISO*] piainant; and the 'canceling of said
notes in the terms, and upon the conditions set
forth in said bill: but they admit and aver that
about the time mentioned in said bill, in conse-
quence of hearing the complainant had failed
in bnstnesB, and was compromising with bis
ereditoiB, a conversation and arrangement did
take place between the defendant. Clarke, and
the complainant; in which said defendant asked
him tipon what terms the complainant would
•ettle the whole claim of the defendants, not
aierely on what terms he would settle the
amount of aaid notes; upon which complain-
ant olTerwl to MtU« it kt dzt; cant* in the dol-
• It. «d.
lar, and pay in gooos. Said defendant, Clarke,
answered that he understood complainant had
compromised with other of his creditor* at
seventy cents In the dollar, and hoped eom-
f'lainant would not think of putting off the de-
endants with less; and complainant at length
agreed to pay defendants in goods, the whole
amount of their claim, at the rate of seventy
cents in the dollar, and pay the balance, viz.,
thirty per cent-, when he was able; but insisted
that they should take the goods in masses,
without selection, as they lay upon the shelves;
which was finally agreed to by defendant,
Clarke; nor was it till after the arrangement
had been so agreed on between themselves,
that anything was said between them about
the defendants' getting up and canceling the
complainant's notes; but afterwards they admit
a conversation on that subject did ensue be-
twetn defendant, Clarke, and the complainant,
in which it was understood and arranged be-
tween tbem that upon the settlement of the de-
fendants' whole claim, by paying the same In
goods at the rate of seventy cents in the dollar,
the defendants should get in and cancel said
notes, not upon the settlement In that mode of
the amount of the notes merely; such was not
the understanding of the parties, at least of
either of these defendants, but the true amount
of their just claim against the complainant; ths
amount widerstood by defendant, Clarke, at
the time, was not the aggregate amount of tha
notes merely, but of the original invoice, in
liquidation of the amount of which, with a de-
duction of five per cent., the notes had been
given; and inasmuch as that deduction had
been allowed upon the faith and confidence
alone of the complainant's said pledge and as
surance to pay the said notes, punctually, aa
aforesaid, and as he had totally failed to com-
ply with said pledge and assurance, these de-
fendants considered that, in equity, indeed, in
strict justice, they were entitled to the amount
of the invoice, without such deduction."
Whether the thirty per cent-. In addition, h
due to the appellants by the contract [*lfO
depends on the evidence: the answer admfta
the agreement of composition to Ije truly set
out in the bill, so far as It is set forth; but in-
sists that ao much of it as stipulated for the full
payment of the notes when the complainant
was able, is omitted. The rule in such case isi
"If the answer of the defendant admiU a fact,
but insists on matter by way of avoidance, the
complainant need not prove the fact admitted,
but the defendant must prove the matter In
avoidance-" Dyer, 108. The defendant! ad-
duced no evidence tending in the slightest de-
gree to establish the statement in the answer.
'The complainant, however, proceeded to prove
the contract by different witnesses to be such
(and no other) as the bill alleges it to have been.
We give extracts from the depositions of two
of his witnesses.
"Do you or do you not remember a compro-
mise made between the complainant and the
defendants, Clarke A Briscoe, relative to the
payment of a certain debt due from the said
complainant to the said defendants! If yea,
state the subject of the said compromise, and
■' e terms of it."
"To the first. I do. The elatm waa for
Uw original purehaaa made «f Clarke ft Bria-
1051
190
Sunua Coon of t
oo«, by eompTi^iMiit, in 1832; uid tlM >grM-
ment was to pay the notes given for that pur-
ctmee, by giving them goode st aevGutj cent* in
the doUki, it the prices which they were
marked ei having coat. Mr. Clarke made the
yeement. He was to commenoe at any part
the itore he chose, and take the goodi as
they cam«, till bis claim wm satisfied. Some
at the notes had been passed away by Claike ft.
BrJKoe. These tkey were to t«ke upind return
with the other notes, to Mr. White, as soon
after the goods were delivered as he could get
Ther
] far I
I know, to pay the balance of thirty per cent,
at any time. I was present when uie bargain
was made. Tliey took the goods upon those
t«rmi, to the full amount of their claim, except
one dollar and forty -one cents."
"To the second. I recollect Mr. Clarke's
coming into Mr. White's store, and wishing to
know in what way they would settle. The re-
ault of their conversation was that Mr. White
ahould give him seventy cents in the dollar, in
goods, for the amount of his claim. The claim
was for the balance due to Garke ft Briscoe,
for the purchase of a stock of goods made of
them by Mr. White, in 1832. The terms of the
compromise were that Mr. Clarke should com-
mence at any part of the store where he chose,
191*} and go an taking *ali the goods as they
came, till he got the full amount of his claim,
at seventy oents in the dollar, at the pric«
which the goods were marked to have cost. Mr.
Clarke was to deliver up to Mr. White the notes
which remained unpaid for the purchase in
1832."
The assumption, therefore, that the com-
Elainant's equity is repelled by the countervail-
ig equity of the defendants, because of the
promiae to pay the full amount of the debt
when complainant was able, cannot be sus-
It is (third and fourth) asaumed that "A
aompoaition of a failing trader with his credit-
tor, being BtrictiBsimi juris, must be fulfilled by
the debtor to the letter; and any failure in
complying with its terioB, in a minute par-
ticular on his part, however far he may go in
part performance, vitiates and annuls the whole
OOmposition.
"According to the complainant 'a own Bhow-
ing, he has failed to fulfil the composition in
terminis, and he has, to this day, something
further to do in order to fulfil it; yet he baa
not even been decreed to fulfil it."
It ii generally true, in cases of compoaition,
that the debtor who agrees to pay a less sum in
discharge of a contract, must pay punctually;
for, until performance, the creditor is not
bound. The reason is obvious; the creditor has
the sole right of modifying the first contract,
and of prescribing the conditions of its dis-
eharge; if the agreement for compoaition stip-
ulates for partial payment, and the debtor faila
tA pay, the condition to take part is broken,
the aecond contract forfeited, and no bar to
the original causs of action. 16 Vea. 374.
It will be neceasary t«i examine whether any
question is raised to which the principle can be
applied. We have seen there is no evidence
■uataining the claim for thirty per cent, on the
seven thousand one hundred and forty' — '-'
tracted to pay five per cent, in addition, on ths
invoice in liquidation of which the note* wtn
given.
The arerment la. Independent of any nllegt-
tion in the bill, very improbable in it^lf, ud
not sustained by the slightest proof. We toki
it, therefore, no such agreement was made.
At the time the goods were delivered, throogb
inadvertence, one dollar forty-one centa re-
mained due to Clarke ft Briscoe. When Whit-
discovered it, he offered to pay the amount,
which the reapondents 'refused to re- [*191
ceive. The fact U set forth in the bill, but not
noticed in the answer. If, however, an issue
had been taken upon it, we think the miatake
of a character too trivial to deserve notice: the
defendanta diaregarded it when the goods were
in a course of delivery, and admitted the con-
tract of composition, to the amount of oevent;
cents in the dollar, to be dischaigedi and s«
this court holda.
White's compliance will, therefore, bear th«
teat of all the legal strictness, supposed in ar-
gument to apply in casea of performing eon-
tracta of compoaition.
Fifth and aizth, it la insisted:
'There is no evidence in the cause compe-
tent and sufficient to overrule so much of tbs
answer as deniea the agreement for composi-
tion alleged in the bill; and avers a materially
different agreement."
"Taking the terma of the compoeition to ha
such as ^e anawer avera and pute in the place
of what it deniea, there appears a still more im-
portant, palpable, and fatal breach of ita tcmi*
on the part of complainant-"
We rpply that the evidence ii competent,
and amply sufficient to overrule the parts of
the answer responalve to the bill, and that tha
terma of the composition were not such as tht
Seventh, it is Inaiated:
"The actual frauds which the answer charges,
in the elaboration of the scheme of artiBciil
and feigned failure and insolvency, for de-
frauding the creditors of their dues, and over-
reaching them with unfair compositions, under
deceitful pretexts, are fully made out in proof;
and are auf^cient. and more than siifTicient, U
aet aside the complainant's composition witk
the defendants, ana every composition with his
other creditors."
This being the ground upon which moat re-
liance was placed to make cut the defense, it ii
due to the argument that we examine the ptnit
in the form it has been presented for the sp-
pellanta; and conaequently, that some attentiea
be bestowed on the evidence tending to prors
fraudulent conduct in the appellee, withort
ntcely discriminating how far It appli«a to tba
cause made by the pleadings. It ia pontended
that the corrcBpondence, the attempta at eoB-
position with the Baltimore merchanta, uid tbs
agreements with them and others, famisfa evi-
dence of a fraudulent Intent in the appelles t«
alarm and overreach hia creditors generally,
thereby to draw them into •cotoposl- ["HI
tiona at low ratea by deceitful pretexts, whiA
position, ft is assumed, la fully made oat it
proof, and that the appellants were victims te
tha eommoB fiuud aad aubterfuge !a a fair is-
ISM
CLktUt Kt At. V. WbITI.
in
ffennee; *t all aTenU, If metntl fnod doea
■tot appcAT, tkkt it la eridant the complaiiutnt
did ii<rt eome into court with an unaffected
eoDBCience; in trhich caae he cannot call upon
tha active powar of tha court for relief; tbat,
in the phrase of early times, the complainant
mutt come into equity with clean hands.
If any deception wai practiced whereby thi
appellants were drawn into a losing bargain,
aod a sacrifice of thirtjr per cent, of their just
demand, the court could Dot, coniiatently with
tha principle referred to, afford iti active aid to
the complainant. But, if it be assumed that d
Gonrt of equity can refuse relief bettuae the
complainant, in Mttling vlth other ereditora,
imposed on them, and nence his conscience is
affected, the aaaumption must be rejected as
nniound. Such extraneous dealing* are not
within tha issue, and do not belong to the cause
further than they can be connected with the
transaction aa evidence of a connected aystem
of fraud, to produce alarm and action on the
p*rt of these particular creditors.
To press further the principle that a com
Clainant must come into a court of equity when
e asks Its aid with a clear conscience, would
be assuming an unlimited and undefined dis-
cretion to dismiss the bill, not for want of equi-
ty in the allegations and eorrcBponaing proof,
bot because of the bad conduct in life and char-
ai^er of the complainant.
The true rule is: "If the paraoD against whom
fraud is alleged, should be proved to have been
guilty of it in any number of instances; still, if
the particular act sought to be avoided, be not
ahown to be tainted with fraud, it cannot be
afTected with the other frauda, unless in some
way or other it be connected with or form a
part of them." Conard r. Nicoll, 4 Peters, 297.
Testing the force and effect of the evidence,
with this explanation of the rule, In virtue of
which it is sought to give it effect, and what
do» it eatablishT For years before the fall of
1833, when the transactions we are Investi-
gating took place, the complainant, White, had
been a retail dry goods merchant in Washing-
ton city, of reputed opulence, and decidedly
good credit. In 1833 the city business was de-
pressed, and the sales reduced, compared with
former years; the retailera generally bought
light stocks for the fall trade, predicting press-
ure in the money market and difficult times.
White, on the contrary, purchased much larger
than usual, asserting it aa his opinion
194*] 'that trade would aaanme its usual vig-
or, and that the ordinary quantity of goods
would be needed during the then approaching
long session of Congress: his fait purchases
amounted to near thirty-four thousand dollars,
and added to those of the spring made forty
■even thousand eight hundred and fifty-seven
dollars. In the previous year (1B32) he had
purchased thirty -three thouaand eight hundred
and ninety-two dollars' worth of goods for his
stores; having one In Qcorgetown also. It is
inaisted that these large purchases were made
with a prospective view to a failure, and com-
poaitiona at thirty and fifty per cent, discount;
tba complainant at the same time being perfect-
ly BolTRit In fact. That purchasing largely
waaan elaborated scheme, with aviewto future
and feigned insolvency, deaigned, on the pnrt
of WMte, to ovanaach Ua ereditora, it is diffi-
colt to believe. Hh exertions to maintain M«
i^redit alter his first notes were dishonored, anl
to quiet the Baltimore creditors, whose suspi-
fions had been awakened from his heavy pur-
.'liahcs in September, could not well have been
more earnest, active or ingenious; and this, up
to the time when the Baltimore creditors, by a
bill of injunction, restrained complainant from
proceeding in his business; and which pros-
trated his credit and character to such a degree
as to render a failure inevitable had the means
of payment been ample as they are asserted to
have been.
It is probable that the appellant was insol-
vent, and knew the fact to be so when he made
the fall purchases of 1833; and that he incurred
[he dangerous risk of so large an overtrading in
not be material for what amount he failed, if
he had the goods on hand, or their proceeds,
should they be sold when the event happened.
This certainly was bad faith, If true, in refer-
ence to the creditors from whom the stock of
goods for IS33 had been purchased; but how it
could alTect the respondents, who had the previ-
ous year trusted %Vhite on long credits cannot
be perceived; they received payment out of the
gooda thus obtained to the amount of seventy
per cent.; and in this aspect of the alle;,'cd
fraud, by complainant on the whoI<>?ale deal-
era, the appellants surely have no just grounds
to complain.
But the merits of the defense, it is earnestly
urged, rest on the question whether the appel-
lee was solvent and able to pay his whole d^bta
at the date of the composition and contract to
lake a part. On this head the evidence ia
tolerably satisfactory: an account of White's
'means and liabilities waa demanded [*I»S
of him by the Baltimore creditors as early aa
the 3d of December, 1833, which was furnished,
d is no doubt substantially correct; at least
the credilors treated it, and nothing Is found
the record to disprove the statement. That
he owed the debts there set forth ia certain, and
that he had the means to meet them is very im-
probable, as the creditors instituted and exer-
cised a scrutiny not likely to overlook secreted
property; and money, there ran be no doubt.
there was none, for the complainant, in good
faith, seems to have discharsicd many of his
bank debts, with others, to the extent of all (he
caah he could command, amounting to twelve
thousand dollars, during the months of October
id November, IS33.
This brings us to the debts and means of pay
ment. On the 3d of December thecomplainsnt
owed in Baltimore fifteen thousand one hun-
dred and flfty-Uve dollars; in Philadelphia four,
thousand four hundred and sixteen; in
New York ten thousand seven hundred and
sixty-four; and In Washington city nine thou-
sand two hundred and fifty-one; in all forty-
~ine thousand five hundred and eighty-six dol-
The means of payment were thn stocks of
goods in Washington and Georgetown, twenty-
six thousand five hundred dollars; good debts,
two thousand four hundred and forty-six ;
doubtful debts, two thousand five hundred and
tliirty- three; the aggregate of active meana
thirty-one thousand four hundred and forty-
nine doUan.
106
Bvruaa i^ubx
Keal Mtate four thoutAnd doIlAra; bouftehold
furniture one thousand aeven hundred knd flf-
tj; these items added to the goods and debts,
make thirty-seven thousand two hundred and
twenty -niae dollars' worth of property.
Then there weis exhibited bad debts, due to
the eoniplainant, amount, ten thousand one
hundred and sixtf-flve dollars. On these dea-
penite debts do buginesa man could place any
reliance; and thej are, therefore, disregarded by
the court when estimating the available prop-
arty of the appellee; and the game might, with
■omething of safety, be assumed of the item
consiating of household goods; the Idea that
the wealthy wholesale dealer will strip the fam-
ily ot his unfortunate retail customer of their
beda, furniture, and utensiU, has no place In
the mercantile transactions of this country.
Retaining this item, however, And the com-
plainant nad twenty-five per cent, less property
than the amount of the demanda against him;
and of course could not have paid mora
than aevenly-Sve per cent. The fourth of
!••*] 'forty-nine thousand five hundred and
dghty-iix dollan (the aggregate of the debts)
b twelve thougand three hundred and ninety-
■Iz; the pioperty in hand (thirty-seven thou-
sand two hundred and twenty-nine dollars) de-
ducted from the indebtment, ghoiva an excess of
debts over meana of twelve tliousand three hun-
dred and fifty-seven dollars.
This state of facts had been exposed to the
ereditors of the appellee on the 3d of December,
and Clarke &, Brigcoe applied for an adjustment
on the 20lh of the mouth: of course, they n
familiar with it; they made no inquiry for
formation, and no demand for more than e
enty per cent.
The notes of appellants were not due, and
they were obviously and very justly impressed
with the belief that the debt would be lost if
White did not compound it; he was urged by
them to deliver goods to cover seventy ^r
cent.; this he at lirst declined, and offered six-
ty; but, on being reminded tliat others had re-
ceived payment at the rate of seventy per
cent., he, with obvious reluctance, assented.
But more than seventy per cent, was received
by Clarke &, Briscoe, because their notes were
not then due. They presRed the debtor to the
highest rate of composition he was able to pay,
conaistently with Ins duty to the other credit-
or*: and, considering the nature of bis means,
and that he discharged thia demand with the
most available means, it was probable that
•qual justice could not he done to others.
These prominent and controlling facts ri'pel
the idea of a feigned insolvency, or that
the appellants were overreached by deceitful
The evidence tending to prove unfair conduct
en the part of the appellee, in reference to his
creditors in Baltimore, etc., had little iuflnencc
on the appellants, as we apprehend; how far it
extended, it is ditHcuIt to ascertain. Be this,
however, as it may, they having received their
full proportion of the appellee's property, have
DO nifht to resist the prayer for relief, even
had the composition been made in subservience
to an unfair but extraneous influence, growing
out of the transactions with the other creditors,
who were separately seeking payment. In
equity, as at law, fraud and injury must cod-
isB unirD Srans. Wt
eur to furnish grannd for judJelkl metiam; •
men fraudulent Intent, uiiaccompKoied by any
injurious act, is not the subject of judicial o^-
nizanee. Truly, there are atrang grouadi «t
suspicion; bnt fraud ought nut to be concdved;
it must be proved, and expreaaty found. Cod-
ard T, Nieoll, 4 Petera, 2fl7; The United SUtM
V. Arredondo, 6 Petera, 718.
'Again, H is contended that the ap- [*ltl
pellants did not receive their due proportioa of
the means of payment at the appellee** con-
mand, when thecomposition was made; beeauM
he held a lot with valuable improvementa there-
on in Washington city in the name of hia broth-
er, by a conveyance purporting to be in trust
for appellee's three infant children; which deed,
it ig mgisted, is pretense, covinous and void,
both in law and fact, in so far sa it affecta tbs
an intended fictitions faflore ot the time tin
goods were purchased from the appellants, In
1632, and for which the notea HUght to be m-
joined were giveg.
Much stress has been laid upon thia trmnike-
tion, as somewhat of an Independent ground of
defense in the pleadings, and also in the Argu-
ments presented for the sppellants; we there^
fore deem it a duty to bestow upon thia partic-
ular question a correaponding degree of nttts-
Tfae facta ft rests upon appear by the tnst
deed and the deposition at the grantor, J<dni A.
Smith.
The lot was formerly the property of Dviitl
Brent, and was sold early in 1829 as part of his
property, by John A. Smith, appointed tmatsa
of Brent'e estate, under an insolvent aet; at
which sale William G. W. White became the
Eurchaser, at the pries ot one thousaud Ave
iindred and thirty-two dollars and thirty-foor
cents, on a credit of 6ne, two, and three ye*r*;
the lot being sold at auction for a full prioe, and
the sale notes paid at maturity, no doubt exiata
of the appellee's former equity therein. H*
took posappNion immediately after the purchaaa
in IR3n, and commenced improring by ereetiac
buildings thereon, the lot having been rackntat
the date of the purchase.
On the Uth of January, 1832, John A. Smith,
at the request of William G. W. White, oon-
veyed the premises to James L. White, in trust
for the three infant children of William O. W.
White, in fee. Between the date of the pur-
hase in 1R2B, and that ot the conveyanee In
January, 1832, William G. W. White made ba-
provementa on the premises to the ralue of
about three thousand dollars; and added to
tlicm others, costing twelve or fifteen hundred
dollars, after the date of the deed, and befen
his failure in December, 1S33. The property, at
this date, was worth about six thousand del-
ppellee. The deed of the I4th of Jantwiy,
1B32, was not delivered to the clerk to t*l**
be recorded until the 13th day of July there-
after, and within one day of the expiration el
,he time prescribed for such delivery hijr tbs
ilotute of Maryland, which la six manUw; and
he notes sought to be surrendered nn daleJ
the 2d ot July, 1832. '
retnv It.
Cujoa IT AL. T. WHin.
IM
In referenc* to tUi connTUice It mftjr be re-
narked that by the common law it was valid
wilbout reKistration, and where register acts
require deeds to be recorded, the; are valid un-
til the time preacribed by the Btstute has ex-
pired; and if recorded within the time, are bb
effectual from the date of execution, aa if no
register act existed. The deed from Smith to
James L. White ia, therefore, unimpeachable,
for the reason that it was delivered for regis-
tration on the last day of the six months; nor
is fraud predicahle of the mere circumstance of
noarvgistry, as against William G. W. Wiiite,
who was not the grantee, nor entitled to the
possession of the deed. How far fraud in fact
mi(;bt be inferred from sot putting the deed of
record, taken in connection with other circum-
stances, Is a question involving tbe rights of
third persons not before the court; and which
we do not take into considerstion further than
to ascertain whether the appc:llee used the deed
■a a means of deception in the transaction be-
fore us. If White represented the property as
not belonging to him, and settled with his
creditors on this basis, when it did belong to
hitn, the question then la, can the appellants
Inverse the decree and dismiss the bill, and be
let in at law upon the property! And t)lis pre-
sents another aspect of the effect of the convey-
ance, as a legal title, it is not open to imputa-
tion; William G. W. White never had any es-
tate in the premises recognized at law, or sub-
ject to execution; the title passed directly from
Smith to James L. White: consequently, if the
deed were pronounced void, the title would be
adjudged la Smith i it is one of those convey-
ances where there was clearly a bona fiile
grantor, and which is not within the statutes
mgftinst fraudulent conveyances; as was lioMrn
in Jl'Niel v. Brooks, in 1 Yerger's T. Rep, 73,
which case followed that of Crisp v. Pratt, in
Croke, 548, If the conveyance is open to im-
putation, it is so at common law, and because
of fraud in fact, and involves substnntialiy the
■ame inquiries that did the case in this court of
Sexton V. Wheaton, 8 Wheat., and Ilindc's Les-
■ee T. Longworth, II Wheat. We will not say,
but that on a proper case being made, and
fraud in fact proved to have been the moving
c«use of ordering to be vested in trust the
premises in tbe name of the appellee's brother.
!••*] that the latter "would not be decreed to
hold as trustee for the creditors of William G.
W. White, be having paid the consideration;
but then tbe property would be treated and ap-
plipd aa a trust fund, and be so declared in
e<iuity, on the sole ground that the transaction
waa fraudulent in fact. No case is before us
fairly to raise such a, question, or to justify
apeculations afTecting injuriously a title valid at
law, and prima fade good in equity, when those
moat interested in it arc not before the court.
There is another rcnson why the appellantu
cannot challenge the validity of the title made
by Smith to Jamea L. ^Tiite; it is this: they
made the composition with a full and perfect
knowledge of the facts attending the convey-
atnee, and aubsequent improvements of the
property; then they continued silent, and took
the full benefit of their contract, and cannot
BOW be heard to apeak. He who purchases tin-
■ODDd propertT, with knowledge of the un-
aonndnesa at tM time, cannot niaint^ an ao-
tion. So if one compound! a debt, or makes
any other contract, with a full kno\r1edge of all
tbe facts, acting at arm's length upon his judg-
ment, and fails to guard against loss, he must
abide die eonsequences. Neither fraud nor mis-
take can be imputed to such an agreement.
Eighth, it is contended:
The inequality alone in hia various composi-
tions with his creditors (all the other cireum-
stances of fraud being out of tbe questiani is a
fraud, per ee, both at law and eqtutj-; and auf-
Bcient of itself either at law or equity, to viti-
ate and set aside each and every of the con*
positiona. from tbe lowest to the highest.
If upon failure or insolvency one creditor
goes into a contract of general composition
common to the others, at the same time having
an underhand agreement with the debtor to re-
ceive a larger per cent., such agreement if
fraudulent and void, and cannot be enforocd
againat the debtor or any surety to it. 1
Story, 371. Tlie doctrine was carried so far in
the Court of Exchequer in England some years
since as to extend the principle to a case where
the creditors made aeparate contracts with the
debtors, but with an understanding that two
shillings and sixpence in the pound was to be
paid; and one Oif the creditors got a secret bond,
fraudulently intending to induce others to enter
into the composition, and the bond was relieved
arrflinst. Fowett v. Gee, 3 Anstruther, DIO.
Although this case and Spooncr v. Whitsan, S
Moore. 580, in the Common Pleas, have been
adduced to the court as varying the general
principle, on e.iamination of 'them we ['200
think they proceed upon it; and the case In
Anstruther presses the principle very far against
the creditor; however thry might be, no great
stress could be laid on them by the court, and
the same may be said of Small v. Brackley, 2
Ves. 802, cited by the appellants' counsel.
The rule cutting off underhand agreements in
cases of joint and general compositions, as a
fraud upon the other compounding creditors,
and because such agreements are siibversive of
sound morals and public policy, has no applica-
tion to a case like the present; where each
creditor acta not only for himself, but in op-
position to every other creditor, all equally
relying upon their vigilance to gain B prior-
ity; which, if obtained, each £iug entitled
to have satisfaction, the payment cannot
be questioned. The debtor may prefer one
creditor, pay him fully, and exhaust his whole
property, leaving nothing for others eqiuilly
meritorious. Yet (heir case is not •remedial:
and why may not debts be partially paid in un-
equal amounts! If those who receive partial
payments are willing to give relcasrs, it is their
own matter, and, sliould a third person inter-
fere, debtor and credilnr could well say to him,
you are a stranser. and must stand aside.
The case of the appellee presented a fair in-
stance of the propriety of paying some of his
debts fully and others partially. He owed bank
debts, secured by the in.lar^ements of friends,
whose klit'lness was the oniy motive to incur
the liabi ity; to relieve whom he did pay, and
paid, large Runis during October
nd N.»
]HH3.
The niites passed off to Clagctt & Washing-
ion were transferred before maturity, and be-
fore tbe contract of compoaitlon took place:
BupBBUE CouBT or TBS Umm StATXs.
in
•nd of courap their right was not iffcctcd by it.
At to them, the decree diamissing the bill was
t roper, «a it is in all other respects, aod must
B (.ffinned.
Mr. Justice Baldwin disaented.
This rsuRe cBine on to be heard on tbe tran-
Bcrfpt of the record from the Circuit Court of
the United States for the Diatrict of Columbia,
holden in snd for the County of Washington,
and was argufd bj counsel; on consideration
whereof, it ia dfcreed and ordered hj this court
that the decree of the said Circuit Court in this
cause be, and the same ia beTebjr wEEii-med wittt
•BEULAH STELLE, Plaintiff In Error,
Tbe doctrine* of tbe coTninoD law, an tbe iiibjec
ot dower, allboiiiiti ilnre altered bjr aa act or Ai
■embly of Marjland. uhriv sMil tho law ot Man
land when the Vnll
over the IJ;I«tr!rt ol
jfti g
d Jiirlsaktlon
e Act of i^on-
, declnrca that the I
laws ot MuiT-
jn'ToriTe 'in''tliat"part "ot" tb~e district which waa
cedfd hT that Ittatc.
Aceordlns to thp prlnclploa ot the common law,
a wldDv nns not doivable [n her buslMiDd's eqattj
n( redemption, and ir s man moitEii^a In fee.
before marriage, and dies nllhout redeeminf the
■norigace. Ula vrldoiv la not enilili-d Id Unwer.
Mortea^i's were made during the coverture. 1ml
the mai'teage deeds were acknowledged bj the
wife upon prlT; euminetlou: and Iheae acknowl-
ot ITIS ('eh, 4TI, nnd ITOfl (ch. 11), bar tbe rIchE
ot doner In the lata thus coiiTej'ecl to Che mortBagee.
Tbe Irgnl estate pasted ro (he mortRaeee. and the
huslund retained nothlnx but tbe egult]' of re-
demption: nnd as Ihe ulte bad no right ot dower
cuted hr tlip bUKliand. ™nvey«l tbe whole of hla
Intcreat In tbe estate, and was a bar to the claim ot
dowiT. It WHS a«r nrcvsaUT^ tor tbe wlte to Join In
such a deed, bs slie tisd no rltrht ot dower In tbe
I'qnitr at redemiitlon. which was conveyed bj the
deed.
IN error to the Circuit Court of the United
Statpa for the County of Wuahington in the
Difllrict of Columbia.
The plaintiff in error brought an action
claftning to be endowed out of eertain lots, with
the improvementa on them, being No. 16 and
No. 17, in Bounre 72S, in the city of Wanhing-
ton; and rtlied on the following circumstancea
BB giving her the right thereto;
On th>' 31th of AiKniet, 1804, George Walker
and William TuniiclifTe conveyed, in fee-aim-
ple, to PontiuB I), .Stelle. lots ifl a-d IT, in
square 728, in the city of WasbinKtOK. And
on the S.'illi of Aupist, 1804. Pontius D. Stcllc
reconveyed tln'ne Inls to William Turnicliffe,
by way of mortgiic, to secure the paytnent
of the purchase money; but hia wife did not
relinquish her doner.
On the 14th dav of November, IROB. Pontius
D. Stelle ex«euted to Peter Miller another deed
of bargain and aalo, in fee-simple, of lot 18, in
1«B«
■quire 7SS; and Beulah Stolle, Ui wife, Jeisd
with him in the acknowladgment, and nlii-
quished her dower.
On the 1st day of Hareh, 1810, Pontini D.
Stelle conveyed the 'same lots to Peter [*tt1
Miller, in fee-idmple by way of mortage, sad
Beulah Stelle, the demandant, relinquished hst
dower in them.
On the 28th of Januarr, 1811, Pontins tL
Stella executed another dnd, in fee-simple, to
Peter Miller; by which, after reciting that he
had, on the SCth of August, 1804. mortgaged
lots TO and 17 to William TumirlifTe, to sectiTC
the payment of four thousand dollars, the hal-
ancc of which had been, or was, aectired to bt
paid to TurniclilTe by Miller, "and from wliirh
the said Pontius D. Stelle fa wholly releaited
and exonerated;" that Miller bad ailvBn<^ M
him (Stelle) several large sums of mouey, tor
Bccuring the payment of which he (Stelle) had
conveyed to Miller lot 18, in square 729, with a
deed of defeasance from Miller to Stelle; wUtk
sums of money "Stelle having failed to pay to
the said Miller, tbe said conveyance of lot nua-
bered IS to the said Miller hath become ahsolots
and unconditional;" and that Stelle is desinras
of "more fully conveying and assuring tbe
atiove described lots of ground to the said Peter
Miller;" and for the eonaideralion of eight
hundred and ninety-two dollar* and ninrty-
eight cenlB, he proceeded to convey, by bar-
gain and sale, to the said Peter Miller, his
heirs and assigns, the said lots III, 17. and IB,
"and all the right, title, interest, properly,
claim, and demand, whether in law or eqtiity,'
which be had in them; with covenanta of gn-
eral warranty ("except the liens above mea-
tioned"), and for further aasurances. This deed
has DO release of dower.
Afterwards Pontius D. Stelle left the poasei-
sion of the said lots, and they were sold under
a derree of the Court of Chancery of Washing-
ton, by Zaeharioh Walker, trustee, and were
purchased by the defendant, and the building
on lots le were erected after the deed to Peter
Miller in 1811, and not by P. D. Stelle:
The Circuit Court inatructed the jury tke
plaintiff could not recover, and a verdict sad
judgment were rendered for the defendant, wha
thereupon prosecuted this writ of error.
The case was argued by the Messra. Brtat
for the plaintiff, and by Mr. Bradley and Ur.
Coxe for the defendant.
The plaintiff's counsel relied on the followiig
paints for reversing the judgment:
1. The defendant, claiming under the d*«d
of IBIl, from P. D. Stelle to Petir Millrt,
could not deny the seisin by P. D. Stelle of tl4
premisra in question at that date.
•2. That the mortgage to Turnicliffe ["Ml
was no bar to the claim for dower, becauae tie
wife did not Join tn it, and because the dead
of 1811, from Stelle to Milter, recites tbe satia^
faction of this mortgage.
3. That the two mortgages from Stelle and
wife to Peter Hitler were abaoliitely aatialWd
and discharged by the sale of the equity at
redemption in ISll, to Peter Miller by oU
Stelle.
4. That, admitting the exf^tenoe of ontftae'I
ing mortf^ages. in which the demandant b*d
joined, still such morlgagra ara no liar to ti'a
Pelcr* II-
»»
BnuM V. CuBou.
emtnd: brrKiiie the uM drfrndant does not
0I1I under siiiil morLj^gct, or (.nj of them, but
lon». under the deetl of 1811.
fi. That where the tenant in posBRiBion has
it entered uniler existing mortgages, the fact
f there being luch outatAnding mortgagcB is
) bar to dower.
S. Tbat the demandant did not dul; and
E1II7 relinquish her dower by any daed, as
ged,
l^or the plaintiff, the following caau were
ted: e Johns. Rep. 290; 7 John*. Rep. 281; 9
ihiu. Rep. 344; 13 Maaa. 228; 4 Rent's
im. 44, 4S; 2 Haistead'a Rep. 408; 5 Pick-
ing'i Rep. 110, 475; 3 Wheat. 2Zfl, 227; 17
au. 564; 16 Mass. 279; 1 Cowan, 460.
The couniel for the defendant in error con-
Dded:
1. That Pontiui D. Stelle never had an estate
Iota Ifl and IT, of which the demandant
uld be endowed.
2. That if he had such estate, ret ahe bu re-
iquished her dower by the deed of the let of
irch, 18)0; and if anj equity remained Id
r (which the defendant denies) it waa releated
the deed of her husband of the 28th of Jan-
rj, 1811.
Daiea cited: 1 Atkyn's Rep. 441, 442; 6
hna. Rep. 2M; 7 Greenleafa Rep. 4^ eU.
Ur. Chief Juitice Taney delivered the opia-
I of the court:
rhis la an action of dower, and was brought
theplaintilT in error againit the defendant,
the Circuit Court for Washington County in
: District of Columbia, to recover her dower
lots No. IS, 17. IS, and 19, in square No.
. in the city of Washington. At the trial of
case, the Circuit Court instructed the jury
t the demandant waa not entitled to recover;
which instruction, no eiceplion wai taken:
I the verdict and judgment being for thede-
dant, the ca«e haa been brought here by the
landaul, by writ of error.
4*] 'The claim tor dower in lot No. 10
tni to have been alMndoncd, as no evidence
■elation to it is contained in the record. As
}ects t)ie other three lots, it appear* that
itiua D. Stelle was seized of them in fee,
ing the coverture of the demandant ; and
ig ao «cixed, by deeds duly executed and re-
led, mortgaged them in fee to a certain
ir Miller. The deed* were acknowledged
the demandant, on privy examination, ac-
ting to the act of Assembly of Maryland,
fh was in force when Congress assumed ju.
iction over the District of Columbia.
DtB No. IS and 17 had been encumbered by
le, by a previous mortgage, to a certain
llkin TumlrlltTe; and after theae several
tg«ge« bad been made, Stelle executed a
I to Miller, dated January ESth. 1811, duly
lowledgod and recorded: in which, after
laknd dollar*, the balance of which had
I paid by Miller, and from which the said
I« was wholly released and exonerated;
reciting also that Miller had advanced to
I* Mveral large sums of money, to secure
!h Stelle had conveyed to him lot No. 18,
1 a deed of defeasance from Miller to Stelle;
A •Uina of monej the said Stelle having
become absolute and unconditional ; and thftt
the said Steele wa* desirous of more fully con-
vening and assuring these lota to Miller, he, the
said Stelle, ia consideration of the premises,
and for and In consideration of the sum of
eight hundred and ninety.two dollars and nine-
ty-eight cents, paid him by the taid Miller, the
receipt Of which be thert^bv acknowledged,
did "give, grant, baigain, sell, alien, lelease,
ajid conflrm these three Iota to the aaid Peter
Milter, hi* heira and aaaigna. The deed con-
tained a covenant of general warranty, "except-
ing the lien* before mentioned." Toe demand-
ant did not join in, nor acknowledge this deed.
Stetle died in 1828. and was out of possession
of these lots for some time before nia death.
The defendant, Carroll, claims under Fster
Miller.
The case ha* been fully ai^ed, and many
decieion* in dilTcrent State courts have beeii
cited and relied on in the argument. It Is,
however, unnece**ary to review and com para
them, because the question must depend on the
law* of Maryland aa they stood at the time that
ConsresB assumed jurisdiction over the District
of Columbia; and the decisions referred to In
the argument, although made by tribunal* ea-
__ . since it i* well known that in the State*
where these decisions have been made, the rulea
of the common law, in relation to dower, have
been modified by a course of judicial decision;
and the strictness of the rule which excluded
the widow from dower, in an equitable interest,
has been, in some degree, relaxed. But the
doctrines of the common law upon this subject
(although since altered by act of Assembly)
were still the law of Maryland when the United
States assumed jurisdiction over this district;
and the Act of Congress of February 27th,
1801, which provide* for its government, de-
clares that the laws of Maryland, a* the; then
existed, should continue and be in force in that
part of the district which wa* ceded by that
It is not necessary to refer to adjudged cases
for the purpose of proving that, according t«
the prinriplca of the commun law, a widow b
not dowable in her husband's equity of redemp-
tion; and if a man mortgaee* in fee, befora
marria^, and dies without redeeming tlie mort-
gage, his widow is not entitled to dower. In
this case, the mortgages were made during tha
(.■overture; but the mortgage d^eds were ac-
knowledged by the wife, upon privy examina-
tions; and these acknowledgments, under the
Acts of Assembly of Maryland of 17IG (eh. 47).
and 1708 (ch. 14), which arc in force In this
district, debarred her of the right of dower in
the lot* thus conveyed to the mortgagee. The
legal estate passed to the mortgagee, and the
husband retained nothing but the equity of re-
demption; and as his wife had noright of doww
in this equitsble interest, the deed of Stelle to
Miller, of Janiiftry 2Rth. ISII, above mentioned,
conveyed to Miller the whole interest which
had remained in Stelle. It was nnnecessair for
the wife to join in, or to acknowledge this deed)
for aa she had no right of dower in the equity -
of redemption, she bad no interest to rGlintjuialt
when her husbsnd conveyed it to Miller.
n iMi
MM Suraun Oovar or t
Tha ncitata hereinbefore menttoned In the
deed of Jmotry 28th, 1811, have been much
relied on in the argument for the ptainti? la
error, and it is insiBted that, according to the
facti there atated, the mortgage to Turnicliffe
bad been paid off by Miller; and that as it doea
not appear in the record that it had been as-
Mgned to Uiller, the payments made by hlro,
•a recited in the deed above mentioned, were a
aatisfactiOD of the mortgage, and restored to
Btelle the legal estate, and conseijueDtly revived
the right of dower in bia wife in lota No. IS
and 17, wliich had been mortgaged to Turni-
clilTe. But it muet be remembered that Uiller
306T] held a mortgage to himself 'for the«e
lota Junior to that of TurniclilTe, and that the
fiayments made by him to discharge a prior
ncumbrance would not enure to the benefit of
Stelle; but that Miller had a right to hold on
to the legal eatate conveyed to him by liia mort-
gage deed, to aecure the payments he had made
to Turnicliffe, and Stelle was not entitled to be
restored to his legal estate in these lands, until
the payments to Tumicliffe were satisfied, as
well as the money due to Miller on the mort-
gage to himself. Besides, it these payments to
Milter could be regarded aa an extinguishment
of the incumbrance created by the mortgage to
Tumicliffe, yet the mortgage of the same lots
to Miller was outstanding and unsatisfied. The
Interest of Stelle, therefore, eren in that caae,
could be nothing more than an equity of re-
demption; and the satisfaction of TumiclifTe'a
mortgage by Stelle himself would not have re-
stored to the demandant the rieht of dower, of
which she had debarred herself, by acknowl-
edging the deeds to Miller, hereinbefore men-
tioned. The conveyance of the equity of re-
demption to Miller for a valuable eonsideration,
united in him the entire legal and equitable
interesta, and this conveyance cannot, upon any
Srinciple of law or justice, give a right of
Dwer in these lots to the wife of Stelle.
We think the instruction given by the Circuit
Court was right, and the judgment must there-
fore be affirmed.
Thl« cauae eame on to be heard en the tran.
script of the record from (he Orcuit Court of
the United States for the Diatrict of Columbia,
holden in and for the County of Washington,
and was argued by counsel; on consideration
whereof, it is now here adjvLdged and ordered
by this court that the judgment of the said
Qrcuit Court in this cause be, and the same is
hereby affirmed with costs.
CALVIN JONEl.
havlni differed In opinion upon qUFsCInni of Ian
wbleh arose On the trial of tbp cbiibp. Ih? Supreme
Court caDuaC be called upon to eipren bo apliiloo
on the wbole facts of Ibe cbbc, Instfad of u[>on
psrtlcolar points ol law, crowini: out at tbe ami,
E UniTiD SuiM.
upon a letter of fuarantr addressed to a]
Isr peiaon. or to persona Renerallr. for ■
credit to be ilren to a part^
'orlte
t the pfno
u ui Diisd upon tt
It OS tha laltli of I
ClTlDf tb« credit t
■uaraDtj, and tan given (
TUa ta not an optu quei ._
tbe declalons whlcb bHve been made In Runell i
Clarke, T Crancb, S» ; 3 Cond. Rep. 417; Edmmrf-
aton T. Drake, D Petrn, 0:i* ; DoukIbss t. BrjaMt.
1 Petsra, lis, aaU Lh t. Olck. 10 Petaca. itl.
rpms CI
a came before the court on a eertil-
The defendant, Calvin Jones, was attached
ham i. Company; they claiming from him tbt
sum of fifteen hundred and twenty-Sve doUan
for goods furnished to Miss Betsey Miller, na-
dcr the following letter of guaranty:
"Mr. William A. Williams.
"Sir: On this sheet you have the list s(
articles wanted for Miss Betsey- Miller's millin-
ery estebllahment, which you were so vet}
good aa to ofTer to purchase for her. I will M
security for the pajraent, either to you or tht
merchants in New York, of whom you oia]
I will be added all possible fanr
merits aa much, by her late knowledge of her
business, industry, and pure conduct and prii-
clples, as any whatever.
"CALVIN JONES."
Mr. Williama, the person named in the guar-
anty, purchased the articles according to the
list furnished, from the plain tiffs, who were
'merdiants of New York, on the ^th ('tOS
of October, 1832. Tbe goods were funtiahed
on the faith of the guaranty, which waa left
with the plaintiffs.
During the progress of tbe cause, ftnd whilst
the same was before the jury, it occurred as a
question, "whether the pliiinlilTs wore bouad
to give notice to the defendant that tliey had
acerpted or acted upon the guaranty, and givti
credit on the failh of it. Upon whicli quedli<n
the opinions of the judges were opposed: wbcrt-
upon, ou motion of the plaintiffs, by their at
tomey, that the point on whii'h the disagree-
ment hath happened may be atated under tha
direction of the judges, and certified under (he
seal of the court to the Supreme Court to be
finally decided, it was ordered that a atntelMal
of the pleadings, and a statement of facta, whitA
was. made under the direction of the judges, It
certified, according to the request of the p'aia'
tiffe, the law in that case made and provided.
The ease was submitted to the court os
printed arguments by Mr. Fogg for tbe plaia-
tiffs, and Mr. Yerger for the defendant.
Mr. Fou, for the plaintiff.
The counsel for the plaintiffs admits that thr
decisions of the Supreme Court of the United
re.— As to eont
-. .. jontlDuIng asd other inaraatMa
ird the construction and elTect of Ibe aaniiT. f
intes to e L. ed. II. 8. 1J2: 8 L. ed. U. 1. 19 ;
ID 1,. ed. []. B. lOGS.
10 U. ed. 0. B.' lOGS.
Aa !o notice of acceptance of gua
to 29 L. ed. U. S. 480.
Adaiu, CunniNOBAii A Oo. t. Jom.
Kttt have estkblfBhed "that ft party ^vlng ■
iter of e^uaranty, baa a right to Icdow whether
U accepted, and whether the person to whom
ia addreued, meana to give credit on the foot-
I of it or not," and henoe notice that it ia ac-
>ted and relied upon, must be given In a rea-
oable time, to ctuu'ge bfm wbo mnkea the
lUs k undoubtedly th« rule when the coo-
let of the guarantor ia proapeetive, and la-
id* to attach to future tranaacttons. Until
I other party aMentE to and accept! the guar-
ty, it la a mere pinpoaitlon of one party, to
.ich, if the other asaenti, he muat give notice
the fact to the guarantor; lO that he may
^late bis course of conduct and bia exerclae
vigilance in regard to the party In whoie
rbe contract sued upon in thia cftie does not
1 within the foregoing principle!. It wa«
; a prospective pramiae to Adams, Cunning-
n & Co., intended to operate upon future
naactionB, and to protect credits extended to
M Miller after the period it came to their
ids. William A. WilliamB, to whom the
ter waa addressed, waa appointed the agent
9'] of MtsH Miller to purchase the 'goods
cifled in the letter, and he was also the
int Of CalTin Jones, the defendant, to deliver
letter of guaranty to any merchants of New
rk, from whom Williams might think proper
purchase the goods. The defendant says:
will be security for the payment, either to
I or the merchants in New York, of whom
I may purchase; and you may leave this in
Ir bnnaa, or otherwise, as may be proper."
I defendant had himself annexed to the tetter
Hat of articles required; he knew the whole
ent of his obligation. From the terms of
letter, Williams had no right to deliver, or
very of the letter and purchase of the'goods
e intended to be one transaction, anS the
1 and delivery of the guaranty were de-
dent acta of the same date. The parties so
»1. The clerk of the plaintilTs provea "that
letter was exhibited to them to ascertain
decide whether they would make the sate
n its credit, and being aatisfled with the
dnesa and responsibility of Calvin Jones,
f did sell and deliver to EtiTabcth A. Miller,
>ugh her agent Williams, the goods ordered
the letter; and the said Williams did, pur-
nt thereto, at the time of such sale, leave
d guar
hinningham t Co. What Calvin
es did by his agent waa equivalent to
own act; through Mr. Williams, Jones did
W at the moment the letter was delivered,
became operative in the hands of the
ntilTa, the nature and full extent of his
ility. The letter of authority was then ex-
ited, and no further credit to Miaa Mfller
authorized or Intended by the parties.
I contract, therefore, does not fall within
of the rules laid down by the Supreme
rt, and no further notice to Jones waa neces-
' than that which was within the knowledge
da agent, Williams.
he ease ot Duval et al. r. Trask, 12 Mass.
. 104, la in point. The court ther(> say
' do not eonalder the promlae in the tight
a demand of, or diligence in tlie pursuit of the
oricfinal contractor. It waa of itself an original
undertaking, collateral to the promise of the
vendee a* security; but not liable to any con*
tingencies, except that of gross negligence In
securing the debt, by means of which the loss
might be thrown upon the vendors. See also
the ease of Lawrason v. Mason, 3 Cranch, 492,
and that of IVWolf v. Rabauda et al., 490, 600,
1 Peters's Rep. and also 7 Cranch, 09.
*Mr. Terger, for the defendant. [*91V
The defendant Jones was sued as a guarantor
□f the debt of Miss Miller, and the only
question raised by the record is whether
he was entitled to reasonable notice from the
plaintilTs that his guaranty was accepted and
acted on by them. That he was so entitled ia
settled by a variety of adjudicated cases, par-
ticularly by the cases of Douglass et al v. Rey-
nolds, Byrne & Co. 7 Peters's Rep. 113; Ed-
mondston v. Drake, S Peters's R. 029; Lea v.
Dick, 10 Peters's Rep. IB; Pickering"! Rep,
133; 1 Bailey'a South Carolina Rep. 620.
This case cannot be distingiiished in jirinci-
Ele from the foregoing cases. One of the judges,
owever, in the court below, believed from the
terms of the guaranty that Mr. Willinms (the
person authorized In the guaranty to purchase
the goods) waa the agent of the guarantor, and
that in such case no notice was necessary. Thia
view of the case would make Jones the prin-
cipal debtor instead nf Mi!<s MiH^r- W.-'lii.-^B
would in such event, purchase the goods for
Jones, and not on Miss Miller's account, which
is contrary to the manifest intention of the par-
ties.
The guaranty on its face shows that Jones's
liability was only collateral. It shows also
that Williams waa to be the agent of Miss
Miller in purchasing the goods. The guaranty
is directed to WiHiams, and says, on this
sheet you have the list of articles, etc., which
vou were so good aa to oFTer to purchase for
ncr. I will be security for the payment, either
to you or the merchant of whom you will pur-
chase; and you may leave this in their hands,
or otherwise, as you may think proper," etc.
Does not the language conclusively prove that
Williams waa Mias Miller's agent in buying the
goods. He was to buy them for her, not for
Jones. This guaranty was not of an existing
debt, bat waa a guaranty for goods to be ad-
vanced to Miss M. afterwards; whether it would
be acted on or not, or whether the goods would
be furnished by anyone, and by whom, Jonea
could not tell without notice.
In Edmondston v, Drake, 6 Peters, the guar-
anty was addressed, not to the party who was
to be benefited by it, but like thU one, to third
persona. Through the agency of the persons
to whom it was addressed, the goods were pur-
chaaed by the party ; but the credit was given to
the guaranty, by the merchants who furnished
them. So in this case, the letter of guaranty
was addressed to Williams, he purchased the
goods, and they were furnished on the faith of
the 'guaranty. The two cases are pre- ['all
cisely alike in this respect; and yet Chief Justice
Marshall (page S37) says, in the first case, "it
wouTd be an extraordinary departure from that
exactness and precision which peculiarly dis-
tinguish mercantile trwuactiona. which is u
merchanU, u a nicrchaiit should act
of this character, tad hold the writer reepon-
•ible, without giving him notice that he had
uted on iL"
If WiUianu waa the agent of Jon«a in thii
caM, were not Caatilto k Black the agenta of
Edmondaton in the case In fi Petere; and if no-
tioa on that account waa not necessary in the
latter cftM, doei It not inevitably follow that
Chief Juatlce Marahall wae wrong when he ex-
TirMied hi* aurpriae that any peraon abould
ioubt that it waa not required in the other'
In Dguglaai v, Reynolda, T Peters's Reporta.
the court decided that "a party giving a letter
of credit haa a right to know whether it be ac-
cepted, and whether credit ii given on it or not:"
Indeed, until such notice, there ia no contract.
l%e court in that caae aaf "auch notice la most
naterial, not only aa t« his responsibility, but
a« to future rig&ta and proceedings. It may
regulate his course of conduct, and his exercise
of vigilance in regard to the party in whose
hvor It la given.
That case also decides that a demand of
pavment of the principal should be Brat made
before the guarantor is resorted to. The guar-
anty in that ease was atronger than this; the
guarantors bound tbemaelvea jointly and acv-
erally to be reaponaible for alt advancea, etc.
The principle of the case in 7 Fetera ia ap-
pllcabla to continuing guarantora, or to guar-
antors of a single tranaaction; as was decided
In Lee v. Dick, 10 Petera'a Reports, 432. The
court in this last csae, says: "There are many
eases where the guaranty ia of a specific exist
tnf demand, by a promissory note, or other
evidence of a debt, and auch guaranty is given
upon the note itself, or with a reference to it,
and recognition of it, when no notice would
be necessary. The guarantor, in auch catca,
Iniowa preciaely what he guarantiee, and the
extent of hia reaponsibility. But when the
guaranty Is prospective, and to attach upon
future transactions, and the guarantor unin
formed whether bis guaranty baa been nrcepted
and acted upon or not, the fitness and justice
of the rule requiring notice is supported by con
sfderationa that are unanswerable."
It is t»elieved the above authorities m de-
dal ve of this caae.
212*1 *Mr, Juatice Story delivered the opin-
ion of the court:
This cause cornea before ua upon a crrtiftcate
of division of opinion of the judges of the Cir
cult Court of west Tennessee. The plaint i1Ti>.
Adams and othera, brought an action afi[ainst
the defendant, Jones, for the amount of certnin
goods supplied by them, upon the credit of the
following letter of guaranty:
"Ralpioh, September Zfith. 1832.
"Mr. William A. WiilUms.
"Sir; On this sheet you have the list of ar-
ticle* wanted for Miss Betsey Miller's millinery
Mtablishnient, which you were so very good aa
to offer to purchaae for her. I will be securily
for the payment, either to you, or to the mer-
ehanta in New York, of whom you may pur-
chaae, and you may leave this in their hands,
or otherwise, aa may he proper. 1 hope, to
Jour favor and view, vrfll be iidded all por.sible
tTor by the merchants, to the young lady, in
1««0
ficnKUB Cnvat of the Uimm Sum.
quality and prices of
BOoda, aa I h
by her late I
lt»
hare no look
. . . late knowledge «t
uEi biiainesB, industry, and pure conduct sal
principles, aa any wbatei-er.
"CALVIN JONES,"
"After the compliment that is paidmeabova,
I should hardly be willing to place my name h
near it, waa I not told It was necessary ui
proper the merchants should know my fasnd-
writing generally, and particularly my si^-
tura. ELIZABETH A. MILLKR"
The list of the articles waa appended to tk
letter.
Upon the trial of the cause upon the genenl
issue before the jury, it occurred as a question
■'whether the plaintiiTu were bound to give i»-
tiee to the defendant that they had accepted or
acted upon the guaranty, and given credit on
the failh of it." Upon which queation the opiB-
ions of the judges were opposed; and thereup-
on, according to the act of Congress, on mo-
tion of the plaintiffs, by their attorney, Ua
fKiint has been certified to this court. A state-
ment of the pteadinn, and also a statement d
facts mads under the direction of the judgrs,
have been certified aa a part of the record. Some
diversity of opinion has exiatcd among tki
judges aa to the true nature and extent of ths
questinu certified; whether it meant to ask th«
opinion of thla court, whether, under all tlte
circumstances disclosed in the evidence, in;
personal notice to the dL'fi'ndant, or any olhei
notice than what was *mn<lc known to [*2I1
Williams, waa neecfiary to fix the liability of
the defendant; or wliPtlier it meant only to pot
the general question of the nci:es5ity of ooticc
in cases of guaranty. If the former interpreta-
tion were adopted, it would call upon thiscourt
to express an opinion upon the whole facts of
the case, instead of particular points of law
growing out of the same; a practice which is
not deemed by the majoi'ity of the court to bt
correct, under the act of Congress on thia sub-
ject. Act of 1802, cli. al, sec. 8. The latter
is the inlerprrlation which we are disposed ts
adopt; and Ihc question which, under this via*,
is presented, is, whether upon a letter of guar-
anty addressed to a particular person, or ta
persons generully, for a future credit to be giv-
en to the parly in whose favor the guaranty is
drawn, notice is necessary to be given to the
guarantor, that the person Hiving the credit hw
accepted or acted u|)on the guaranty, and givti
the credit on the faith of it. We are all of opia-
ion that it is necessary ; and that this ia not now
iin open question in this court, after the deci-
sions which have been made in RuhwII v. Clarhe.
7 Cranch, 69; Edmondalon v Drake, S P'trr^i
Ri'p. 62*; DoiiKlHse v. Revnolds, 7 Petfra'sBep
1t»; Ue V. Dick, 10 Peters, 462, and ag«i>
reio^ni^ed at the present terra in Ihp case tt
Reynolds v. Douglass. It is in itself a reasona-
ble ride, enabling the euarantor to know the
nature und extent of his liabiHty; to rxerriw
due vir-iliiuce in miardiiig himself axainat lonSM
whii'h might otherwise be unknown to hi*:
and to avail himself of the sppropriatr meaa
in law and equity to eompvl the other partiM
to discharge him from future responsiiiility.
The reason applies with atill greater force I*
cases of a general letter of guaranty; for it
might otherwiae be impracticable for the guar-
Pct«n IS-
i^as
lux UIHTH> BXATKS *. llUXfl' ttnW.
•ntor U> know to wbom, and under what eir-
eumtanccB the guaranty attached; and to what
Criod it might be piotracted. Transactions
tween the other parties, to a grrat extent,
might from time to time e:(iet, in whirh creilils
mil^t be given, and pajmenti might be made,
th« eiiitence and due appropriation of wlijeh
Bight materiidly affect hia own rights and se-
curity. If, IhireCore, the ({uestion were entirely
new, we should not be disposed to hold a dif-
ferent doctrine; and we think the English de-
tnrions are in entire conformity to our own.
It ii highly probable that the real queationi
intended to be raised before this court upon the
certilicate of division, were whctlier, upon the
whole evidence, Williams was not to be treated
■• the agent of the defendant, at well as of Miss
S14*] Miller, in the procurement of '
credit from the plaintiffs; and if so, whether
Che knowledge of Wiltiam* of the credit by the
plaintiffs to Miss Miller, upon the faith of the
gvaranty, was not fuJl notice also to the defend-
aint, and thus dispensed with any further anii
other notice to the defendant. These were mat-
ters of Fact, very proper for the coneiileratioE
of the jury at the trial; and, if satisfactorily es-
tablithrd, would have dispensed with any fur-
ther notice ; but are by no meana matters of law
upon which we are called, on the present oc-
cAtion, to give any opinion.
A certificate will be sent to the Circuit Court,
In conformity to this opinion.
Mr. Justice Baldwin dissented.
This cause came on to he heard on the traii-
■crlpt of the record from the Circuit Court of
the United States for the District of West Ten-
nessee; and on the point and question on which
tbe judges of the said circuit court wpre opposed
in opinioD, and which waa certiiled to this
coixn fM- its opinion, agreeably to the act of
Congress in such ease made and provided, and
waa argued by counsel; on consideration where-
of, it is the opinion of this court "that tbe
Rlaintiffs were bound to give notice to (.be de-
jndaut that they had accepted or acted upon
tbe guaranty, and given credit on tbe faith of it."
Whereupon it is now here adjudged and or-
dered by this court that it be so oertified to tbe
■«id Circuit Court.
■ IK*] *THB UNITEO STATES, Appellants,
WILLIAM MILLS' HEIRS.
A Biant of land Is East Florida v
_.._ Florlds WBS msde bj th
e tbe cessfOD at Florida by Spain I
perfDrmed bj the irraotee wltbln the time rimlted
Id tbe araDl or any eierlloni mide bj him to per
form them. No safflclral cause far tbe nonper-
■nd deeds, see n
precedent and aubse-
Wko' mar perform aod elect, sa* aata to ants.
fermance ol tbe caodltloBS bavins been shewn, the
dicree Of tbe Supreme Court of East Florida,
which eaoarned the Craal, waa ravened.
APPEAL from tbe Superior Court of East
t'lorida.
In the Superior Court of E^st Florida, the
widow and children, heirs of William Mills,
deceased, presented a petition, claiming title to
a tract of land situated on the east side of the
River St. Johns, at a plsce called Buffalo Bluff,
about two miles below the former plautation of
Panton Leslie ft Company. This land waa
claimed under a grant of Governor Coppinger,
dated St. Augustine, lUth April, 1817.
The petition of William Mills to Governor
Coppinger, dated I7th March, 1B17, stated that
be was an inhabitant of Fernandina, and that
in 1806 he obtained permission from the gov-
ernment to erect a water saw-mill in the place
called Muliterry Branch, near the head of Ha-
tanzas River, the certificate of which was mis-
laid; and after erecting the buildings, they were
burned down by the rebels in tbe sedition which
took place in the year 1S12: and wishing to
build another •eaw-mill east of the River St.
Johns, at Buffalo Bluff, he aaks that a tract of
two miles square be granted to him, with title
and property thereto, in order that he may car-
ry his purpose into effect.
Governor Coppinger, on the lOth of August,
1817, granted the permission asked for by the
petition, to erect a water saw -mi 11 on the River
St. Johns, on the east side thereof, at a place
called Buffalo Bluff; under the express condi-
tions that until he carries said work into effect
this grant of land will be null. "It being well
understood that unless the said machinery be
built and erected within the term of six monthi,
this favor will be null, and of no value; as it
can never be understood to have been panted
with any other view but that of protecting the
inhabitant settlers, and stimulating them to in-
dustry, for tbe known advantages which re-
~ilt from it to tbe province, and consequently
> the interest* Of the king."
■The claimants afUrwards filed a sup-fsil
plementary or amended petition, in which they
state that the p«ntee had been deterred from
— king the Improvements mentioned in his peti-
n to Governor Coppinger by Indian boatili-
ttes, and by threats to persons and their prop-
erty by hoetile Indians, negroes, and maraud-
ers; and they further state that by the cession
of Florid* to the United Statee, by tbe Treaty
of 22d of I^bruery, I81B, they were further
prevented making the improvements, as it was
uncertain how their rights to the land would
be affected by the change of government.
The answers of the attorney of the United
States to the petition and the amended petition,
asserted the noncompliance of the petitioner
with the condition of (he grant; and as to the
amended petition, alleged, as to the dangers of
proceeding to erect the mill, that if any ouch
difficulties existed at all, they existed to as
great an extent at the time when it is atl^psd
that said grant waa made, and when the ancea-
tor of the claimant took upon himself the per-
formanoe of the condition therein menticuied
I at any time since.
Evidence was taken by botb portiei, and the
claim of tbe petitionera waa Gonfirm«i by the
i«ft
tit
SunsMi CouBi or TUB UMtm SrAnts.
ftveiior Court of Floridft tt July Term, 1837.
Th« United States prosecuted thii appeal.
Tlie cate waa argued by Mr. Bntlcr, Attor-
naT'Ccneral, far ths United State*. No eoun-
Hl appeared for the appelleea.
(and claim.
It diSen only Trom the case of The United
Statu T. Z. Kingsley, decided bj the court at
thit term, in this, that the conditions upon
which the appellee was to have a property in
the land petitioned for, waa limited to perform-
ance within BIX months from the date of the
sovemor's decree. It waa not performed.
Nor waa any attempt made to perform it by
tha appellee in bia lifetime, or by hia repre-
■entativea after hia death. No sufficient cause
for nonperforciance la shown witbin the time
limited nor afterwards, to bring it within those
rulea of justice and equity which this court has
aaid shall be applied m Its construction of the
Bth article of the Treaty of February, 1819,
with Spain on its consideration of grants made
upon condition. For the reasons stated In the
case of Kingsley, the court is of (niinion that
XIT'1 'the decree of the court below in this
ease should be reversed, and it was ordered ac-
cordingly.
Ur. Juatice Baldwin dissented.
This cause came on to be heard on the tran-
script of the record from the Superior Court
for the District of East Florida, and waa ar-
gued by counsel; on consideration whereof,
U la the opinion of this court that the petitioner
has not fulfilled the condition of the ^ant, and
that, therefore, the grant or concession is null
nd void, and that the petitioner has no right or
title to the land. Whereupon, It te now here
decreed and ordered by this court that the de-
cree of the said Superior Court In this cause
b«, and the same ia hereby reversed and an-
nulled; and that this cause be, and the same la
hereby remanded to the said Superior Court,
with directions to enter a decree in conformity
to the opinion of this court.
'MOSES B. LEVY, Appellant,
Donperformance ol
ol lands Id East Flortds, retcrrlDR .. ,..> ,
the eantents of wblcb an itatttl to be aet out In
the bill ot the complainant, wblch was replied to
bj the defendaiits. The contrscts were not projti
la the cause br testlnaar, nor was tbe nonproauc-
tlOB Of them Aolj aecODBted for, on ■eeoDdsr; st-
Idenee of tha contents thereof, as rar as pracClcsble,
riven before the Superior Court, The Supreme
Court, tor this detect and IraperfeettoD In the pro-
eeedlnn- had not BDl9denl evidence before tbem
to tvand anj Dual and latlatactory decree. The
ma** et tha Court of Appeals of East Florida, and
IO«l
BnperioT CoDit af Eaat rtaiUh
^rsed, and tbe cause remsnded I*
■- allow tbe plradlncs to tt
ihe Court of
■mended, and the documi
parents Of the same, to be dulj
This caa« was argued on the merits by Hr.
Preatoo and Mr. Thompson for the appellant,
and by Mr. Jones tor the defendant.
The court considered that a certain contrset
between the appellant and Fernando de b
Mazs Arredondo, of 2r2d January, 1822, and a
contract between the complainant and Jaatph
U. Arredondo, of 13th July, 1824, which had
been referred to in the proceedings in tbe courts
below, and which were not in the Tecord, wen
necessary to the decision of the cause, mads
the following order, which waa delivered kf
Mr. Justice Wayne:
The court has had this case under frequent cm-
sultation since the argument of it, and, aa then
is much diversity of opinion among the jod^
in regard to the effect which the contract s<
the 22d January, 1822, between the complaii'
ant and Fernando M, Arredondo, Jun., aal
also in regard to the effect which the cootraet
of the 13th July, 1824, between the complaia-
ant and Joseph M. Arredondo. would ban
upon the rights and equities of the partita;
and it being considered, from the mBnner tht
complainant has set out those contrsicta in Us
bill, and from the manner they are replied la
by tbe defendant, Arredondo, that they are sub-
stantially exhibits in tbe ■cause, whick [■llf
should have been annexed by the complaiaaM
to his bill, and which the Superior Court of tkc
Eastern District of Florida might have ealkd
for before it proceeded to make an^ decree
in tbe cause; it is determined by this eoort.
without giving any opinion upon the dsaaiw
of the Court of Appeals of Florida in tbe canst,
to reverse that decree, and also to reverse tk
decree of the Superior Court of Eaat noridi.
in the cause upon which it waa carried up bf
appeal to tbe Court of Appeals, and both m
the same are hereby reversed; and tbe eoail
remands the cause for further proeeediip-
making it obligatory upon the eomplainant tt
produce on the trial the contracts of tbe tU
January, 1B22, and that of the 13th July, 1891,
or satisfactorily to account for tbe same; «itl
liberty to the parties in the cause to use, «
aucb trial, tbe evidence already taken, and Is
adduce such other evidence aa either naj
offer in proof of their respective equities, u4
to amend their bills and answers; inclndi^
any answer which the defendant, Entialn
may offer to make to the complainant's UI;
upon such terms as the court below may im-
pose, upon sny application made by Entralp
or his counsel to set aside the order, fro Ma-
fesso, against him.
This cause cam* on to be heard on the ti**-
Bcript of the record from the Court of App***
for the Territory of Florida, and waa bii«'
by counsel; on consideration whereof, it b tk*
opinion of this court that the contract d tM
January, 1822, between the complainant sal
F, M. Arredondo, Jun., and also the eoetisrt
of I3th .July, 1824, between the complaisi*
and F. M. Arredondo, from tbe manocr b
■ T. BAtCHKLOB Kt AL.
wUeh the^ ».n Ht out in the biO of complatn-
tnt and replied to b; tbe defendant, are such
exhibits as ought to have been annexed by the
complainant to his bill in the Superior Court
for the I^strict of East Florida, and ought to
have been proved as evidence in tbe CKuse, or
the nonproduction thereof duly accounted for,
ftnd secondary evidence of the contents there-
of, AS far as practicable, given, before tbe Su-
perior Court of the Territory of Florida pro-
eeBded to render any decree in the premisesi
that for this defect and imperfection in the pro-
ceedings, this court have not sufficient materials
before thero whereon to found an^ final and
utisfactory decree; and that justice requires
that the cause should t>e opened in the court
belon for further proofs, as well In regard to
the documents aforesaid, as in t«gard to any
other evidence which may further establish the
merits of the case on either side. It is, there-
aao"] fore, ordered, adjudged "and decreed
by this court, that the decree of the said Court
of Appeals of the Territory of Florida, and
kiso the decree of the Superior Conrt of the
Bkid territory, be, and they are hereby reversed
U)d annulled. And it is further ordered, ad-
judged and decreed by this court, that the
cAuse be remanded to the said Court of Ap-
peals, with directions to allow the pleadings in
the »aid cause to be amended by the parties;
the documents aforesaid, or the contents there-
of, to be duly authenticated and proved; and
such other proceedings in the cause to be had
mA to justice and equit
the *aid Court of Ap[ . .
■ueh further proceedings aforesaid to be had
before itself, or the cause remanded to the said
Superior Court for the same pnrpoees, a« the
one or the other course may be proper, or may
be required bj the constitution of the Mid
courts, and the laws and practice appertaining
thereto. And it is aUo decreed that euh party
paj his own cost* in this courL
lb. Justice Baldwin diisent«4>
Action against one of two oUigors-^pArtnenhip
— ecope of authority of single pArtnen.
An Bctlon or debt wia Instlteted In tbe District
Court e( tbe Dnited States on an obllfatlOD under
the bands and leKla of t^o persons. The actloD
w*« against on* of tbp parti ee tc tbe tHstrnment.
The laws of MlBslMtppI allow id action on sucb
■n iBstrnment 1« be malnCBlned axalnst one of tbe
The funds of a partnership canoot be riKbltallj
applied bv one el tbe partner* to tbs dlK^barfs of
Sla own separate pre-eiiitlni debts, witbout Ibe
■KDrees or upplled assent of the other parties : and
It makes no dtlterence. Id such s ease, that tbe ■»-
•rate eredlter bad no knowledge at the time of tbe
fact of tbe Innd being partnership propertj.
Whatever acts are done by aof partner. In iciard
t« partnership propertr or contracts, bejond the
Nora.— As to anplleattoB of partnership assets
■Dd pTopertj to debts, and rljtbts of ccedltora there-
in, see noU U ■ L. sd. D. t. e«l.
• lb od.
soepe and Db>etB of the , „ , .-
aral. to bind the partnership, bt derived from
Furlb«r autbarllr, eipress or implied, cooferred
upon aucb partner, bejond tbat reaulllas traa bin
Tb* autborltj ol each partner to dispose of the
partnentalp funda, strictly and rlgbltuTlj eiteods
only to tbe ImglDeBa aod Irnuuicllous of tbe part-
nenblp Itself, and ani; dlsnosllloa of those funds
bv anj partner berood such purpose. Is so excess
or bli aotborit; aa partner, and a mlsappraprlatlon
of thoee funds lor wbkb the partner Is responsible
to the partnership; tboucb In tbe case o( beaa
Sde purehaaera without notice, [or a valuabls cob>
■IderatloD, the parlaetsblp maj be bound by tbe
acts of one partner.
If oos partner writ* a letter In bis own name to
bis creditor, referrlnic to tbe eonceras of tha part-
nership, and his own private debts, to thow to
whom Ibe letter Is addieased. tbe letter not being
written In tbe name at the Arm, It cannot be pre-
■omed that tbe other partner had a knowledse of
tbs conleuta of the letter aod sanctioned tbcm
Unleas some proof to tbis elTect was given, (be
other partner ought not to be bound ta Ibe een-
tsBts of tbe letter.
IN error from the District Conrt of the United
States for the District of Uisaisaippi.
In the District Court of Mississippi an action
of debt was instituted on an obligation exe-
cuted on the first day of January, 1824, by
which John Richards and A. H. Buckholts
promise, under their respective hands and
seals, to pay to N. Rogers & Sons, on the first day
of April, 1824, three thousand two hundred and
eighty-eight dollars, with interest from the
date.
The defendant. Abel H. Buckholts. pleaded
payment, and there was a general replication.
After a trial and verdict for the defendant in
1B33, and a new trial granted, the cause wm
again tried in February, 1836; the administra-
tors of A. H. Buckholts having been brought
*in after bis decease, and a verdict was ['223
again found for the defendant; the jury at the
same time having certified that the plaintiffs,
N. Rogers ft Sods, were indebted to the estate
of A. H. Buckholta, the sum of one thousand
sight hundred and twcnty-slx dollars.
A bill of exceptions was taken by the plain-
tiffs to the charge of the court, and judgment
having been rendered on the verdict for the de-
fendants, the plainliffB prosecuted this writ of
error. Tbe bill of exceptions stated that on
the trial of the cause tbe defendants net up off
seta to the demand of the plaintiffs. They wen
contained in an account made up to April lat,
1830, and show a balance due to JohnRichardA
& Co., which firm wa* composed of John Ricb-
ards and Abel H. Buckholts. The balance due
was one thousand five hundred and forty-one
dollars. The accounts credit N. Rogera t
Sons, tbe plaintilTs, with the amount of the
note for which the suit was Instituted, and with
interest on it for six yeare, amounting to four
thousand eigbt hundred and aiity-six dollara;
and charges aeveral items as payments to the
pUiintifTs. with interest on tbe same, showing
the balance of one thousand five hundred and
forty- one dollars.
Two items on the debit side of the account
were made the subject of controversy, vi*.; a
charge of one thousand four hundred and fifty
dollar*, received front Lambert & Brothers, on
the 4th of September. 1B26; and a charge of
three thousand dollars, under date of Janu-
ary, 1S2T, for John Richard*' acceptance of the
draft tt H. Sogers, aU.
aott
Somnu CouBT or ibe Unrmt SrAna.
TIm aoeaunt «>■ aUted ma followsi
Dr. N. Bogera t Sons, In account cur-
rent (account to April 1st, 1830,) with
John Kicbards & Co. Cr.
Tbe debits, among others, w«re:
' 182S. Sept. 4. To cash from
Luubert A. Bros. 11,450.48
Interest on the same 030.62
$1,081.08
I8S7. To acceptances of your
draft on John Kich-
arda ft Co. payable at
a mo. 8,000
Intereat, 800
|3,B0O
The credits were:
1827. April 19. B; amount of
John Richards ft A. U.
Buck ho it's note dua
this day, C3,326.2£
Interest on suns
6 years, 1,M1.06
Z9S*] "In support of this Kt-off.thedefend-
ants relied upon tbe testimony of one Rowan,
who teetifled that sometime in the year IBSO,
he was requt^sted by Buckholts to be present at
a conversation he expected to have at bis ofllce
with a Mr. Rogers (a member of the Arm
Rogers ft Sons, as he understands), relative to
their accounts, and requested bim to note down
and recollect the conversation: that son
after Rogers came into the olEce, andai
sation ensued relative to their accounts; that
the accounts before them were accounts made
out by Rogers ft Sons, between themselves and
Richards ft Buckholts, and John Richards ft
Co. snd .Tohn Richards, and Lambert ft Broth,
ere, in account with John Richards ft Co., Ricb-
ardis ft Buckholts, and John Richards, and an
account made out by Buckholts, between Rich-
ards ft Buckholts, and Rogers ft Sons: that in
their conversation relative to those accounts,
Buckbolts asked Rogers if the several items
charged in his account had not been received,
and Rogers admitted they had been; that among
other items so admitted, was the item charged
in the account of offsets, filed under the plea of
Sayment of one thousand four hundred and
Fty dollars and forty-six cents, and the Item
of three thousand dollars.
The witness stated that in their conversation
about tbe one thousand four hundred and fifty
dollars and forty-iiz cents item, Rogers admitted
that sum had been received by Rogers ft Sons,
from Lambert ft Brothers, in New York, and
was part of the proceeds of seventy -four bales
of cotton, shipped by Richards ft Buckholts to
Lambert ft Brothers. That very little was saJd
about the item of three thousand dollars; the
witness recollected nothing more but an admis-
sion that it had been received. That something
was said between Buckholts and Rogers about
the right to apply moneys to the payment of
John Richards' private debts; Buckholts con-
tending Rogers had no right to do ao, and Rog-
ers that be had, but which particular item of
payment witness did not understand. This
was all the evidence introduced by defendants
in support of the above two items of one thou-
sand four hundred and l!fty dollars and forty
cents, and three thousand dollars. The said
witness further testified that be had understood
the said Jc^B Riebardi kad once failed. befoTe
|0«4
ha went Into parbwrahlp with tba aaU fio^.
bolts. No other witness was Introduced on Ik
part of the defendants. The defendants admit-
ted that in the account made out by Duckbotta
between Rtcbarda ft Buckbolts, and Rogen k
Sons, above mentioned, about which the u>l
conversation between Buckholts and Roeen
took place, that the item of three 'thou- [*tai
sand dolUrs was charged by Buckholts, in his
said account, aa so item received upon a bill of
exchange, drawn in 1825, by Rogers ft Sooioo
John Richards alone.
The plaintiffs then Introduced a letter tnm
John Ricbards to them, dated Natchez. Juh
eth, 182S, of which the following are extrscU:
"To day we have amount of sales of all the
cotton we own {except half interest in scvenly-
eigbt bales gone to England, which was sold
by Messrs. Lambert in Kew York, at tucnlj
cents, subject to benefit of half prolils, wtthout
being accountable, for any loss), which. »1-
Ibough bought lately, nearly netted twenty per
cent. Our profits on cotton will be from four
to five thousand dollars, and our biisin(>ss is, 1
think, prospering. The following is about Uie
ayments we have left in the hands of Aletsra
mbert, Brothers ft Co., to be divided betwen
you and them:
Part sales of seventy-eight bales of cot-
ton, about 12,800
Foater ft Steele's notes, AS30
My three notes, i,JOi
This Intended to pay mv own debt^ fS.SS*
On account of John Richards 4 Co.
The half profits of seventy -ei slit bales
of cotton, gone to Eng'and. which
I hope may be flM)
J. R. ft Co.'s notes, due next winter, «t
Naw Orleans iJM
com
This day, sent to New Orleans aix hun-
dred and fifty-four dollars and fiflyUve cents.
to purchase exchange on New York, whici
will be forwarded as soon as received, to go to
1 thefi
payments I hope you will be satisHrd until
next winter, I have hopes of selling my pri
vate residence, at a sacrilice of two thouaasd
hundred dollars, which will be sent to yon
oon as realized. I have a prospect of get-
ting for it nine thoiiaand dollars.
The plaintiffs, by their attorney, requestrd
the court to charge the jury: First, that the de-
fendants are not entitled, upon the evidratr
before them, to the item of one thoiwand four
hundred and fifty dollars *and forty [*1»
cents, as an offset to the plaintiff's claina. Sec-
ond, that the defendants are not entitled, upoa
the evidence before the jury, to the item of
three thousand dollars, as an offset. WhM
charge the court refused to give; andthereupoa
the defendants requested the court to charge as
follows: Pint, that if the jury believe the
offset of one thousand four hundred and flftv
dollars was the proceeds of cotton of Ri<AaTds
ft Buckholts, or John Richards ft Co., ahiful
on their joint accounts, then it is a leg*! crffsrt
to a joint debt, and cannot he applied to tt*
individual debt of John Kchards. wfthoat
proof that Buckholts was himself eon<>uKs<,
Pciera 11.
IBM
ftoona A emt» t. B&tobloi wt At.
B*l tgned to it. Swond. that if the inir be-
Utnd th«t tW draft of thrM thouaand dollara
«ai paid bf Riebardi & Buckholts, or John
HichardB & Co., or out of the effects of either
of Ihoie flrma, with the koowled^ of Rogers
A Sons, then, in law, it ii a legal ofl'set to the
joint debt of said Rioharde £ Buckholte, or
John Richardi ft Oo., and cannot be ipplied
to the private debt of either partner, without
the consoDt of the other partner. Third, tliat
the letter of John Richarda, read in this caee,
i* not evidence aninet Buckholte, unleM the
jnrv belipve that Buckholti knew of the letter,
and lanctioned ite contenta (which letter Is the
one before mentioned in thia bill of exeeptione).
Which charge the court gave aa requested.
To whieb decision, in refueing to charge aa
reqnetted by the plaintiffs, and in charging ss
requested by the defendants, the plaintiii'B ex-
cepted. The defendants remitted Ave hundred
and sixty dollars, part of the debt eertifled bj
The case was aigned bj Mr. BdUst for the
plaintiffH In ermr, rird by Mr. Hoban and Mr.
Key for the deJ
Buckholts became largely inibUtcd to N. Hi _
i Sons in the liufiinegs of shipping cotton.
Afterwards, In 1826, the Srm of Richards & Co.
■hipped aerenty-cight bales of cotton to lAm-
ftert i. Brothers) and the proceeds of the ship-
■ipnts trtre, sccordinE to the directions of the
ihippers, paid over to tlie pIsintifTs in rrrur: and
of this amount fourteen hundred dollars were,
according to the directions of the letter from
Richards, placed to the credit of Richards. The
Judge of tbe District Court charged the jury
that unless Buckholts had been consulted about
SXA*] this appllealion of the funds, and *hsd
assented to it, the appropriation could not be
sustained. On whom does the burden of proof
lie to show the other partner did not conbcnti
It should tall upon the partner. After tlie
properly of a partnership is sold, one partner
may take nnrt of tbe proceeds of the sale to
pay his debti and the creditor to whom the
payment Is made may retain the money, if be
ilocB not know the jurtner Iisd ohjectcil to the
nppropristion.
The instrnctlona given by the judge to the
[ury were, therefore, erroneous. Cited, Har-
riaon V. Sterry, 6 Cranch, 280; Winship v.
.Tone*. B Peters, SZ9; 13 East. ITS.
Aa to the item of three thousand dollars, Mr.
Bvtier contended that thia grew out of a draft
drawn b; the plaintiffs on John Richards alone.
John Richards B0cept«d the Idll, and it was
paid when st maturitf. Tha aeeount charges
Cfala as "our acceptance;' but this was not the
faet. The evidence shows that the hilt was
drawn on John Rlcharda, and the drawers had
no right to know [t was paid oi:t of thepartner-
ahtp funds. There is nothing to ahow they
did know this, ated, E Stsrkle's Er. 26-
S88, note; B Johns. Rep. flOO; Walden *. Bhel-
borne, IB Jobns. 400; 3 F^ck. G. The whole
of tbe ease depends on the good faith of the
tranaaetion. Tbe Judge did not leave the ques-
tion of good faith to tbe Jury, but laid down
lb« proposition that the fact of the partnership
property having Itean taken to pkj the accept -
aiKs, waa •uAdent W prevent the plabtiffa n-
covering.
The cases on which the counsel for the de-
fendants rely are cases of guaranty.
There haa been great neglect on the part of
Mr. Buckholta in not having given notice that
the acceptance of the draft on Richards was
not to be charged to Mm. The transaction was
in 182G, and there is no evidence that objection
to the credit of the same to Richards alone, was
made until long afterwards. All tbe cases
which have been cited are cases where objec-
tions were immediately made and eommuoica-
ted.
In reference to the one thousand four hun-
dred and Gfty dollars, the credit must have )>een
given in the books of tbe plaintilTs in error in
IS25. and no objection to tliis credit was made
until laSO. Cited, 7 Cranch, 147; 2 Barnwell
ft Alderson, 678.
Mr. Hoban and Mr. Key, for the defendant,
aaid the question presented *in tbiscsse [*297
Is whether one partner haa a right to pay his
separstc debts out of the partnership effects.
The letter from lUcUnrd* slio.vs that be was
using tbe partnership property tor that pur-
The charge of the court Is that one partner
cannot sppropriste the property of the partner-
ship for such a purpose, without the approba-
tion of his partner. Such an appropriation is,
per se, fraudulent. If it is known to be partner-
ship property by tbe private creditor, it Is
fraudulent in him to receive it. 1 East, 61 ; 7
Wendell, 328. All this was matter for the
jury ; and they have passed upon it on two trials
and always in favor of the defendants.
The burden of proof is altogether on the
party who receives psrtnerehin property for
his own benefit, in a transaction witli one part-
ner only. Cited, Colver on Partnership, 279;
Dobb V. Haleey, 16 Johns. Rep. 34; I Wendell,
631. In England it never was contended that
partnership prcperty could l>e taken to pay a
partnership debt, without the knowledge and
consent of the other partner, expresslr given or
welt known. 6 Wendell, CEl; 19 Johns. 157;
5 Co»'an, 489i S Caine's Rep. 246; 3 Wendell,
IIS.
Mr. Justice Story delivered the opinion of
the court;
This cause comes before us on a writ of error
to the District Court of the Di«trict of Missis-
sippi. The original action was debt, brought by
the plaintiffs in error (Rogers ft Sons) H;;ainst
Abel H. Buckholts, upon the following writing
obligatory: "Natchez, Mississippi, Is.^XR.Ci.
On the flrat day of April next, we promise lo
pay N. Rogers ft Sons, or order, three thouaand
two hundred and eighty -eight dollars tl)ree
rents, value received, with Interest from data
Witness our hands and seats, this first day of
January, 1R24- Jno. Richsrds, [seal.] A. H.
Buckholts, [seat.]" Upon such an instrument,
by the laws of Mississippi, oije of the parties
nay be sued alone; and accordingly, Richards
waa no party to the suit. Upon the plea of
payment. Issue was joined; and, pending the
proceedings, Buckholts died, and hiH adminis-
trators were made parlies; and upon the trial,
a verdict was found for the defendants for tha
1»M
an
SupsKKB Ooen i» thb V*nm Btt^raM.
mm of eigbtecn hundred and ttrentT-sii dollars
utd MTenty-four cents, being the balance due
to thetn upon certain Bet-ofTs set up at tbe trial.
A bill of eiceptioiu was taken at the tria) b;
the plaintiffs, and judgment having paaaed for
the defendant!, the present writ of error *
been brought to revise that judgment.
228*1 'oy the billi of exceptions, it appears
that the defendants set up as a set-off an ac-
eottot beaded "Dr., Messrs. N. Rogers A, Sons
in account current to Brst of April, 1830, with
John Richards & Co. Cr.," on tbe debit aids of
whivh account were the two following items,
which conatltutad the grounds of the objections
which have been made at tbe argument: "To
cash, 21,450.46." "To our acceptance of jour
draft, payable at six months, $3,000." To snpport
tbeir case, the defendants ofl'ered the testimony
of one Roivan, who testified a conversation had
in his presence in the year 1S30, between Buck-
holts and one of the plaintiffB, relative to their
accounts; that the accounts then before them
were accounts made out bj Kogera & Sons be-
tween themselves and Richards & Buckholts,
and John Richards A Co., and John Richards
and Lambert A Brothers in account with John
Richarils ft Co., Richards ft Buckholts, and
John Richards; and an account made out bj
Buckholts between Richards ft Buckholts, and
Rogprs ft Stmt. In the conversation relative
to these accounts, Buckholts asked Rogers if
the several Itenia charged in his amount had
not been received, and Rogers admitted thev
bad been. Among other items so admitted,
were the above items of fourteen hundred and
flftv dollars forty-six cents, and three thousand
dollars. In the conversation about the Item of
fourteen hundred and fifty dollars forty- six
cents, Rogers admitted that sum had been re-
ceived by Rogers ft Sons, from Lambert ft
Brothers, In New York; and that it was part of
the proceeds of seventy-four bales of cotton,
shipped by Richards ft Buckholts to Lambert
A Brothers. Very little was said about the item
of three thousand dollar*. Bomething wfik said
between Buckholta and Rogers about the ri°bt
to apply moneys to the payment of John Rich-
ards' private debts: Buclcholts contending that
he had no right so to do, and Rogers that he had ;
but which particular item of payment the wit'
ness did not understand. Tliis was all the evi.
denes of payment introduced by the defend-
ants to support the above two Items of fourteen
hundred and fifty dollars forty-six cents, and
three thousand dollars. The witness stated
that he had iinderstaod that .lohn Richards hud
one* failed, l>efore he went into partnership
with Buckholts. It was admitted by the de-
fendtinla that the item of three thousand dollars
was for a bill of exchange, drawn in 1829 by
Krxn^rs * "r^"" on John Richards alone.
The plaintiffs then Introduced a letter written
by John Richards to the plaintiffs, dated at
Natchez, June eth, 1B2B (and which is in
239*] *the record) containing statements rel-
ative to a shipment of seventy- el glit bales of
cotton, made to Lambert ft Co., and to certain
CiymentR which, the letter says, "we have
ft in the hands of Messn, Lambert Brothers
ft Co., to be divided among you and them."
It then enumerates eipht thousand Ave hundred
and fttty dollars, "intended to pay my own
debt*;" and tm Kcount of Richard* ft Co,
thre« thousand dollara. It then adds that Vm
sum of ail hundred and fifty-four dollars Utj-
five cents bad been that day sent to New Or-
leans to purchase exchange on New York, (a
be forwanled, and go to the payment of Joha
Richards ft Co.'s debt to plaintins, and Uesst*.
Lambert Brothers ft Co.
Upon this evidence, the plaintiffs reqaested
the court to charge the jury that the defendsnt*
were not entitled, upon the evidence Man
them, to ths item of fourteen hundred Bad
llft^ dollars forty-six cents, aa an offset to tlw
plaintiffs' claim; and also that the defendaats
were not entitled, upon the evidence before tbe
jury, to the item of the three thousand dollars,
IS an offset, which charge the court refused to
S've, and in our judgment, very properly n-
ised to giva, aa it involved the deteneinaliaa
of matter of fact, properly belonging ta tbf
province of the jury.
The defendants then requeated the court Iti
charge tbe jury as follows; "First, that if thf
jury believe the offset of fourteen hundred and
fifty dollars was tbe proceeds of cotton of
Richarda ft Buckholts, or John Ricliard* t
Co., shipped on their joint accounts, tben it ti
a legal offset to a joint debt, and cannot be tf-
plied to an individual debt of John Richards
without proof that Buckholts was himself cdb-
suited and agreed to it. Second, that if the
jury believe that the draft of three thousasJ
dollars was paid by Richards ft Buckholts or
John Richards ft Co., or out of the effects of
either of those firms, with the knowledge of
Rogers ft Sons, then in law it is a legal ofTiet
to the joint debt of the said Ricliards ft Buck-
holts, or John Richards A Co.. and cannot he
applied to the private debt of either partus
without the consent of the other partner.
Third, that the letter of John Richards, reai
in this case, is not evidence against Buckbolu.
unless the jury believe that Buckholts knew ef
the letter, and sanctioned its content*." Th*
rt gave the charge as requested, and tW
present bill of exceptioos has brongkt befcrt
us for consideration the propriety of each <(
these instructions.
The first instruction caisrs these queations —
whether the funds of a partnership can be
rightfully applied by one partner to the dis-
charge *of his own separate pre-existing ['SS*
debt without the aasent, express or imptit'd, of
the other partner-, and whether it make* aay
difference, in audi a case, that the separat*
'reditor had no knowledge at the time of tW
fact of the fund being parlnorihip property
We are of opinion in the ncEBtiv<>. on both
7iic<itions. The implied authority of (^h
partner to dibpose of the partnership funll
strictly end rightfully extends only to tbe
htisiness and transactions of the partnership
itself; and any disposition of those funds, bj
any partner, beyond auch purposes, ii aa <i*
cess of his authority as partner, and a misap
propriation of those fund.i, for which tfe
partner is respnnsible to the partoenbip;
hough In the case of lionn ftde pnrrbaseis-
vithcint notice, for a valuable concideratioa.
he partnership may be bound by such acta.
A'ba^ever acts, therefore, are done by aay
partner. In regard to partnership | ~
Roons A Sons v. BAXc^ixLoa st al.
230
tht ptrtuership, be derived from aotne further
■otbarit;, exprEu or implied, i-onferred upon
•Dcli partner, beyond that reBultinE from hil
d)*nicter M |iartner. Such U Ue general
Rrinriple, uid m out judgment, it is founded
I good BenEe and reason. One man ought not
to be permitted to dispose of the property, or
to bind the rtRbts of another, unless tne latter
has authorized the act. In the case of a part-
ner paying his own separate debt out of the
partnership funde, it Is manifest that it is a
violation of his duty and of tbe right of his
partners, unless they have assented to it. The
act i« an illegnl conversion of the funds, and
the separate creditor can have no better title to
the funds than the partner himself had.
Doel it make any difference that the separate
creditor had no knowledge at the time that
edge, undoubtedly he would be Kuilty of gross
fraud, not only in morals, but In law. That
was expressly decided in Sheriff v. Wilks, 1
East R. 48, and indeed seems too plain upon
principle to admit of any serious doubt. But
we do not think that such knovfledge is an es-
sential ingredient in such a case. The true
question is, whether the title to the property
has passed from the partnership to the separate
creditor. If it has not, then the partnership
may reassert their claim to it in the hands of
■uch creditor- The ease of Ridley v. Taylor,
13 East R. ITS, has been supposed to incul-
cate a different and more mocliiied doctrine.
But upon a close examination, it will be found
to have turned upon its own peculiar circum-
231*] staiices. Lord Ellenborough, in 'that
case, admitted that one partner could not
pledge the partnership property for his own
separate debt; and if he could not do such an
Kct of a limited nature, it Is somewhat difficult
to see how he could do an act of a higher nature,
snd sell the property. And his judgment seems
to have been greatly influenced by tbe consider-
ation that tbe creditor in that case might fairly
presume that the partner was the real owner of
Che partnership security ; and that there was an
Absence of all the evidence (which existed and
might have been produced) to show that the
other partner did not know, and had
«uthorixed ' ~
ahj evidence that the act v
unauthorized by tbe other pariners, ii is very
fwtr from being clear that tne case could have
been decided in favor of the separate creditor;
for his lordship seems to have put the case up-
on the ground that either actual covin in the
creditor should be shown, or that there should
be pregnant evidence that tbe act was un-
authorized by the other partners. The case of
tirceu V. Draher, 2 Starkie'a Rep. 347, before
Lord Ellenborough, seems to have proceeded
grwdieiit. In the recent ease, Ex parte Gould-
Tng fcited in Collyer on Partnership, 283, 2S4)
the Vice-Chaneellor (Sir John Leach) seems to
haTS adopted the broad ground upon which we
«Ta disposed to place the doctrine. Upon the
appeel, his decision was conflrmed by Lord
Liyndhurst. Upon that occasion his lordship
•mid: "No principle can be more clear than
tta«t where a partner and s oreditor enter into
• Ki. ed.
a contract on a separate account, tbe ft <iisr
cannot pledge the partnership funds, or glvi
tbe partnership acceptances in discharge of
this contract, so as to bind the firm." There
\yaa no pretense in that case of any fraud oa
the part of the separate creditor; and Lord
Lynhurst seems to have put Lis Judgment upon
tne ground that unless the other partner as-
sented to the transaction, he was not bound,
and that it was tbe duty of the creditor to as-
certain whether there was such assent or not.
The same question has been discussed in thi'
American courts on various occasions. In Dob
V. Halsey, IS Johns. Rep. 34, it was held by the
court that one partner could not spplj' partner-
ship property to the payment of his own sopa*
rale debt without the assent of the other
partners. On that occasion, Mr. Chief Justice
Spencer stated the difference between the de*
cision in New York and those in England to
be merely this-that in New York the court
re<[uired the separate creditor who had ob'
tained the partnership paper for the private
•debt of one of the partners, to show ['233
the assent of the whole firm to be bound ; and
that in England, tbe burden of proof was on
the other partners to show thtir wont of knowl-
edge or dissent. The learned judge pdJed:
"I can perceive no substantial difference
whether tne note of a firm be taken for a
private debt of one of the partners by a sepa-
rate creditor of a partner, pledging the security
of the firm, and taking the pro'p-ity of the
firm, upon a purchase of one of tbe partners,
to pay his private debt. In both cnsm. the act
is equally mjurious to the other p;ir(ners. It
is taking their common property lo pay a
private debt of one o( the partners." The
same doctrine has been, on various occasions,
fully recognized in the Supreme Court of the
same State. And we ncpd do no more than
refer to one of the latest— the ease of
Evemffhim v. En^worlh, 7 Wend. Rpp. 326. In-
deed, it had been fully considered long before,
in Livingston v. Roosevelt, 4 Johns. Rep. 291.
It is true that the precise point now before
us does not appear to have received any direct
adjudication; for in all the cases above men-
tioned there was a known application of the
funds or securities of the partnership to the
payment of the separate debt. But we think
that the true principle to be extracted from the
authorities is, that one partner cannot applj
the partnership funds or securities to the dis-
charge of his own private dpbt without their
consent; and that without their consent their
title to the properly is not devested in favor of
such separate creditor, whetlipr he knew it to
be partnership property or not. In short, his
right depends, not upon his knowledge that it
was partnership property, but upon the fact
whether the other partners had assented to such
disposition of it or not.
If we are right in the preceding views, they
completely dispose of the second instruction.
The point there put involves the additional in-
gredient that the sepnrate debt and draft of
Richards for the three thousand dollars was,
with the knowledge of the plaintiffs (Rogers &
Son), paid out of the partnerabip funds; and If
so. then, unless that payment was aasmtcd to
by the other partner, it was clearly invalid, and
not binding upon him. It ia true that tb«
I0«1 ^
Z3t
SimRn CoviT or ram UHtm StAm.
in,tt of three thouund datUn was dnwn
Riehardi alone; and, therefore, it cannot be
preaumed that the plaintiffs had kaowled^i
that it was accepted by the partnership, or paid
out of the partnerghi;) funds. But the quei-
tion was left, and pruiir^rl; left to the jury, to
iay whether the plaintiffs had such knowledge;
and if thcj had, unless the other partner con
■ented, the pajment would be a fraud upon
3S3*] the partnership. 'With the questioD
whether the jury have drawn a right eonctu-
aion, it la not for us to intermeddle. It was a
matter fairly before them upon the evidence,
ard the deoiEton upon matters of fact was their
The third instruction admits of no real eon-
troversy. Tlie letter purports to be written
by Richards atone, and not in the nam<
the firm, or by the orders of the firm. It
braces topica belonging to his own privatl __
fairs, as well as those of the Hrm. Under such
circumstances, not being written in the r
of the Orm, it cannot be presumed that the other
partner had knowledge of its contents, and
sanctioned them, unless some proof to that ef-
fect waa offered to the jury. If the other part-
ner did not know of the letter, or sanction its
contents, it is plain that he ought not to be
bound by them, and aucli was. the instruction
given to the jury.
Upon the whole, our opinion ia that the jude-
aient of the court below ought to be affirmed,
with BIX per cent, interest and costs.
This cause came on to be heard on the tran-
script of the record from tlie DisLrict Court of
the United States for the District of Mississip
pi, and was argued by counsel ; on considera-
tion whereof, It is now here adjudged and
ordered by this court that the judgment of the
aaid District Court in this cause be, niid the
same is hereby afiirnied. with costs and dam-
*gea at the rate of six per centum per annum.
JAMES AUCHINCT-OSS & COMPANY.
Ball was entei-ed In the Dl'trtct Court of tbe
T:nlted Stales tor tbt I^salem Ultitrlct at lAiilsiana.
lor ■ defendaiit. scnlDsl vbom a siill was tiroiiulit
OD cerlola promlnsorj- notes. The ball hevtOK l»<'n
aKflla'st tbem : and a drri^nqe wis taken ttr tnem. on
tbe (round that tbe plalntin bid msde hlni<clf ■ par
tT to * proceedlDg iind^p the Innolvenr lawn of l^iil-
slana, which the principal hail Inslltntei aRBlmt
tils crriJKorB. and In whlrh hp had fBllr>d to oliliiir
the relief allowed bj those lau'e ; a liidfEmTil
da Ting 1>eep frivro aaalnst him on his petition
— -— -'-'-'-• Court, In which t' " ' '■
' l'THd!"'ihnf Vf
It of thp InsfilTert la
Btion whether they wrr
NoTB. — Rail exonerated bv iWh
iCT. or deatb of prfuclpal, see aot
«o e L. ed. U. B. T4>.
<0«*
' DDder tbe rule laid down by the eonrt la tt* oar
of Beer* w. Baagbtan, B Peter*. S29. But as ttt
Kroceedlngi of the principal tor the beBaat of tttan
Lw>, were dismissed op oblectlona of tb* credllorfc
both In tbe District and Sapreme Court of LaaUt
ana, the ball can elaln do exemption Iroro tbe ek-
lliallons of their bond, so account of tbcaa iM-
IN error to the District Court of the Uidtal
States for the Eastern District of t>ou)si»BL
This ease was argued at the January Tcrta,
1837, by Mr. Butler for tbe plaintiffa, and faf
Mr. Key for the defendants, and waa held ua<
der advisement until thia court, an examina-
tion of the rules of practice eatabliahed fay tie
district judge of the United States of the dis-
trict of Louisiana having been considered prop-
er. The case ia fuUf stated in the opiuioa «(
the court.
Mr. Justice HTean delivered the opinion (f
th« court:
This case !• before this court from tbe Dia-
trict Court for the Bastem IHstrict of Loui'
aiana, on a writ of error.
An action was brought by Auchincloss & Oa
against Nathaniel M. Riker, on certain prom-
issory notes, amounting to twenty-five hundred
and forty-flve dollara. The defendant waa ar-
rested on a caplaa, and gave bond, with sure-
ties, in the penal sum of three thousand Bra
hundred dollara, tliat, should he lie cast in the
suit, he would pay the judgment or BurreDdei
himself In execution to the tnarshal.
At the May Term, 1S36, a judgment in favor
of the plaintiffs, 'was entered in tbe r*JH
case, and in June following a writ of fieri facial
waa issued on the judgment, which wea re-
turned "no property found."
In Derembor, of the same year, a capias ai
sntiafaciendum was issued, which waa returned
by the marshal that "the defendant n<»u1d Mt
bo found."
And after wards, in February Term. IBM, sa
returned non est inventus, it was ordered that
the defendants' hail, Abraham B. Walker, Be»
jamirt R. Lyon, Pierre L. Bauclier. and Oiarlet
Cardiner. executors of ?. P. Hall, show t»am
why judgment should not be entered af^att
them, etc. And at the same term, B. R. Lyta.
one of the bail, appeared by counsel, mod re-
serving to himself the benefit of all exeep-
tiona to the rule taken tn the case, filed the fd-
lowins pleas:
1. He admits his signature to the bond aoed
upon, but denies that it creates any ohligktia^
whereupon he files the freneral issue.
2. That the aaid Auchinrloai haa made Ub-
self a party to the insolvent proceedingB of th*
defendant, Riker, in this State, and is bon^
(hereby, etc.
On the first of March following, the eoort
having maturely considered the rme takra ••
Ihe bail of the defendant, order and adjnds*
that the ssme be made absolute, Kiid • JudX
ment is entered a^inst the bail.
In the conrnc of the trial, the defendant* «f-
fercd In evidence the record of a suit in tk
first district of the State, entitled K. M. RIkn
His Creditors, to prove that plaintiffs ka4
made themselvea parties to the ')roceediiip te
} IS.
Whiti *. Tubs kt u.
I. Th&t If defendant were pruent, he eould
not BTtit hjmaelf of uid reoord, and that hii
mretle* eonid not.
t. That the defendants did not offer the ree
ord to prove tbe diieliarge of Kilcer b; hie
enditon, under tbe State inaolvent lawa, and
that it could not be offered for an; other piir-
1. That It waa admitted oppoaition had been
nade in the State court by the creditora of
liker, which the court auatained; and that he
eeord oStr«d, contained onlv the proceedinga
rUeh were had in the inferior court, but the
onrt oTcrruled tlie objectiona and admitted
ha record a* evidence.
!>•*] *And tbe counsel for the bail moved
he court that the; be discharged, aa it
eared that Aucliincloss, b; hie attorney, u
Cpoaition to the proceedinga of Riker against
I creditors, aa shown by the record in evi-
snce; iMit the court overruled the motion, and
I this ruling of tbe court tlw defendants ex-
tpted.
This .
rmitj to the Louisiana pnMti<
Bj the record admitted in evidence, it ap-
«rB that Riker, in Hay, 183S, Died his peti-
» In the Firat Judicial District Court of
lulsiana, representing hta emlian-asBed condi-
m, and hit inalulity to pay bis debts; and he
ayed that a meeting of bis creditors should
called, to whom a surrender of his property
jM be made, and that the relief ^ven by law
unfortunate debtors might tie extended to
D. A achedule of tbe debts against him,
1 of bi* property and the debts due to him
a filed; and objection being made bj hia
ditora to the relief prayed for, it was refusud
tbe court. And from this iiidgment of the
irt an appeal was taken by Riker to the Su-
mo Court of the State.
.lie result of this appeal is stated in tbe first
U by the District Judge since 1824, that the
tlveut laws of Louisiana have been adopted,
this was not done until subsequent to the
dition of the Judgment against the bail '
liiB court have had frequent
T the Act of zeth Hay, 1S24, which author-
the district judge of Louisiana to make
a of practice; but until such rules shall be
[>t«d. It provides that the modes of pro-
ing in civil causes tn the District Court
1 1m conformable to the laws directing the
« of practice In the district courts of the
the benefit of tbe Insolvent law had been
nd«d to Riker before the b«Jl were fixed, it
it have become a question whether tiiry
I not discharged, under the rule laid down
biscourt in the case of Beers et al. v. Haugh-
0 Peters, 320. But aa tbe proeeedinps or
T againat bis creditors were dismissed on
D claim no azemption
from tbe obligations of their l>ond, on account
of these proceeding. A Judgment has been
obtained sgainst Fiker which lie has not satis-
fied, nor siirrcniUred himself in discharge of
his b^I; and thvf have taken no steps tu dis-
charge themselves, 'either by paying [*21I
tlie judgment or surrendering their principal.
The judgment against the bait muat, there-
fore, be affirmed with costs.
This cause came on to be heard on tbe tran-
script of the record from the District Court of
the United States for the Eastern District of
Louisisna, and was argued by counsel; on
consideration whereof, it ts now here adjudged
and ordered by this court that the judgment
of tbe said DistriH Court In this causs be, and
tlie same is hereby affirmed, with costs and
damages at tbe rate of aix per cent, per an*
•JAMES WHITR, Plaintiff, I'll*
The Intention of CanETesa tn passtnK tbe act an'
tbortilns ■ diTlslon ot opinion of tie Jndnm et
,... _, — 1. — — df [h, ifnited States to be certf-
fled Co the Supreme Court,' was tl
the JiidKes of the Circuit Court u
msterlaT poirt la the progiess of I
division brings up the whole cniTse,
the eourt nhoulit ileelde It. In elTtct.
orlElnal. rsCher than appellfile JurlnJIcIli
aqie, should
Its oplnloo,
;ertlflCBt( of
would It. n
, Itant>T, 9
K a certifl(vte of division from the Cir-
cuit Court ot the United States for East
Tennessee.
Mr. Coxe for the plaintiff. No counsel ap-
peared for the defendants.
Is fully stated in the opinion of tba
Mr. Justice IfCinley delivered tbe opinion
of the court:
This is a ease certified to this court from the
Circuit Court of the United Slates for the Beat-
n District of Tennessee.
A petition was filed by the defendants,
Vaiifihan and Grant, stating that a judgment
bad hcen rendered in that court in favor of the
plaintiif against the said Turk, at the October
Term, 1834, for the sum of ei^ht hundred and
ninety-three dollars sixty-seven cents; that aaid
Turk had been arrested upon a ca. sa., issued
upon aajd judgment, and that the other two de-
fendants had become his sureties In a tiond,
~ :h condition that he should make his person-
al spp?srance at the court-house in Knoxvilie,
the second Monday of October next there-
fr; then and there to pay a debt recovered
by .Tames White, in ssid suit sgsinst said
Turk, for eight hundred end sitty-six dollars,
y-one and a half cents, take the oath of
ency, or make a surrender of his proper-
prescribed by the laws of the State; oth- _'
!, the bond to remain in full force and
virtue: that thia bond together with tbe en. aa.
1081
SunEus CodKT or tbk UHirn £
1, tliRf prayed
bkd bem returned to Mtld eonrt kt fta October
Term, 1S35, and Judgmmt rendered therran
tioQ, and without
For reasons stated in th
for end obtained e av\>eT\
At the October Term, 1836, of aaid court,
"on • motion being made to Bet aside the judg-
ment, for the reesona aBsigned in the petition,
and on the ground that the statutes of the State
of Tennessee referred to in tJie petition, and un-
der which the bond was lakca and the judg-
ment on it rendered, are a part of the insolvent
laws of tbe State, ftnil cannot apply to pro-
ceedings on en execution issued from the ted-
eral court; and on a full consideration of the
subject, the opinions of the judges were op-
poaed on the folJowing points:
"First, whether the omission to name in the
bond the sum called for in the execution, and
the namine of a dilTerent sum does not vitiate
it. Second, whether the omission to state in
the bond the court before which the defendant
ie to appear, take the oath of insolvency, or
■urrender his property, does not vitiate it.
Third, whether the omisflion to set out in the
bond the writ of execution, or refer to it, does
not vitiate it. Fourth, whether the proceed-
ings authorized by the statuttis of the State of
Tenneasee, pasEed in 1824 (ch. 17) aad in 1825
(eh. e7), can apply to the federal courts. Fifth,
whether on account of the above defects, the
bond is not void, and tbe proceedings on it
under the above statutes consequently a nul-
Uty."
Tbe intention of Confn-css in passing the act
under which this procerding has taken place
was that a division of the jixl^s of the Circuit
Court upon a single and mat'Tial point, in the
progrexB of the faiise, Blioiild be certified to this
court for its opinion, and not the whole cause.
The certiUcate of the judges in this case leaves
no doubt that the whule canne was submitted
to the Circuit Court, by the motion to set aside
the judgement on the bond. And. had the court
ap^reed in opinion, and rerdrred a judgment
upon the points submitted, it would have been
conclusive of the whole matter in controversy
between the psrties. This certificate, there-
fore, brings the whole cause before this court;
and if we were to decide the questions present-
ed, it would in effect be the exercise of orig-
inal rather thnn appellate Jurisdiction. The
United Stntes v. Bailey. H Pcters's Rep. 267;
Adams, Ciinninclism & Comp;iny v. Jones, de-
cided at the pr.'fent term of (}ii9 court.
S4ft''l 'For fh<-=e rrssnng the oaiiw is remanded
to the drciiit Court, this court not having juris,
diction of the questions, aa stated.
Hr. Justice Bildwin dissented.
This cRUPe came on to be heard on the tran-
■eript of the record from the Circuit Court of the
United States for the District of Kant Tennessee,
■nd was ars:iied by Miimael; on conRideration
whereof, it i" the opinion of thin court that the
whole cBBe has been eertified to tbi» court; and
MM it has been repeatedly decided by this court
that tbe R-lii'e ease cannot he adjourned on a
division of the jrHocs, th* court mnnot decide
this csM in Its presoat form. Whereupon, it |
1070
Is now here ordered *nd «d]ndg«d by this MVt
that this cause be, and (he *sme fa hereby ».
manded to the said On-uit Court, for foHlHt
piniccdings to be had therein se^'onling to la>
and justice, this court not having juri»dictiaa
over tbe case as stat«d.
SARAH H. PTB and Edward Arrll Fy%
Infants, by James B. Pye, their Father aal
Nest Friend, Appellees.
Pleading, evidence — deed of ehlld to parent aot
S resumptive!^ invalid— lapse of time vd
eath of partiea, effaet of.
vejance of tier n
i to InvBlldala a
ity-Ihrcc j-ean el
red tbe *s-
iDg a life e«tsle as tenant by tbe carteay In tkt
aame. asserted Ibat HUct> a deed ODKbt. unon coo-
sideratloQB of public police growlDK out of tbe rt-
latioas ot me parlleB. be deemed void. Tbe coatt
said ; We do not deem it aeo't^nry to travel oitt
all the EntfJIsh niuHoplflea whtcS hnve brr-n rlird:
we tiare luoked Into tbe leadEnf cases and -laiil
•"" -"■ Lhlog to n.Liriiuc tbe broad nud BB-
iBlined
inpacled with Home iDsredleo
S" J
. I( the Bgrcetnent »f-
twelgb allGht circ
e va)l<]ltj or tbe d
e Engl^sb'cbanclr;
eiHmlnsitlonS
ill lubject : fsr.
I diBpoBpd to adopt ov sanction tkt
e that Ibe deed at a child to a paml
d, prtma Cade, void,
a parpnl dlaqualiBed to lake a velu
B his cblld. without C0D»<ldemtlDB. «•
pie at war with sU Altai aa well as pareotal duty
and affeftlun : and acilQE oo tl.e i>ri>iiin|.t.oii ibat a
ite the Int^TM
:Sf.;
re, would be ft
■ child, n'hereaa. the
. thepresi
d Is foiin
a of
a Id the
.plloa aaxbt
i< to a <w»
t of tbe t»
B condnrlif
barmonliti
purchases inadt la
of pure ha
mptlon Id all tranaactlona of
D the dlschBrce of a moral and pan
e year 181S,
-. twenty-tbree yi
i the r
years altciwai'd. and died la II
JxKKiitB cr Ai. r. Pre cr Ab
t41
ttl< jr
BtlMCl
nn warn
mad
in th
llfcrlme
•of th
rmii'T
"f^
of lime,
■Dd lb
de:.h
o" Ihf
to a
;■ Iww
of c
'ntltipd
■InHMt
emus
t tbU kind.
ON appeal from the CSrcuit Court of the Unit-
ed States of th« District of Columhia for
the CountT of Alexandria.
In the Circuit Court, the appdlpe* filed their
Mil against John J. Jenkins, and Mair, the
wife of Robfrt Morrow, children of George
Jenkins by a second wife; the said George Jen-
kins having died on the 8th day of April, 1831,
to set asldp a certain deed executed hy Eleanor
Jenkins, who was the daughter of Georgp
jenkinB and the motherof theeomp'ainanti. and
wl-o died in laiB. Rcorge Jenkins had first
Inter ma rrird with Mary Arcll, who, as one of
thr heirs of Richnrd Arell, was entitled to con
•idi'able real estate, of which partition was
made in 1797. She died, leaving but one child,
th% mother of the complainants-, and hereitate
descpnded to her daiifihter, subject to a lift
tate in George ■lenkins, as tenant by the
tesy. George Jenkins, after her decease, i
rieit and had children bjr his second wife, one
of whom le one of the appellants in the ease.
The dPMl was duly executed bv the mother of
the complainants on the 15th 'of March, 1813,
*nd recorded on the 3d of Kovember, In the
same year, and conveyed in fee-simple to George
Jenkins for a nominal consideration, all the
real c^tstc and ground rents to which she was
entitled as the heir of her mother. The bill
kIso KOiiirht to recover the value of certain real
rarntc. psrt of that conveyed to George Jen-
kins, u'hii'h was afterwards sold by him to dif-
ferent p-rsons; and also the rents of part of
the real estate left unsold at the death of George
Jenkins, and received by the executor after his
decefl<ie. The complainants charge in their bill
that the deed executed by their mother, being
made wholly without consideration, operated
to create a resulting trust in favor of Eleanor
.lenkina and her heirs; and they claim, if thia
cannot be sustained, that the deed was obtained
by the undue influence of paternal authority,
and was therefore void against the grantor and
her heirs, in equity, and ask that it be vacated
■B to all the property conveyed by it, which
was unsold at the decease of George Jenkins.
The answer of the defendants denies that
■ny undue influence was exercised by George
Jenkins over his daughter, who, when she exe-
cuted the deed, was twenty-three yeara of age,
94S*] and was at the time 'weft acquainted
with her rights, and with the vnlite of the prop-
erty. On the trial it was admitted that no un-
due Influence was e^ccrcised by the father, and
ft was in evidence that when the deed was re-
corded, George Jenkins gave to his daughter
two thousand dollars in Mink stock. This, and
the further consideration that the daughter was
to receive a proportionate part of her father's
<>Btate, who, in addition to the property con-
veyed by the deed, waa wealthy; and the estate
oonveycd being such aa required Isr^ expen^en
for its preservation and imprnvciiicnl, were
•aaerted to be a valuable consideration for the
The Circuit Conrt decreed the deed to be null
•ad TOld, becauM the same was without "any
• Ii. ad.
consideration," and hecauss tbs aama waa ob-
tained "soon after the minority of said Eleanor,
and while she yet remained under his power
and control, and uninformed of the nature and
extent of her righte;" and having decreed also
that one of the appellants, John J. Jenkins, aa
administrator aforesaid, should pay three thoa-
sand six hundred and seventy-seven dollars and
one cent, being a balance due, after deducting
two thouxand dollars, paid on the 3d of No-
vember, 1813, with Interest from 8th of April,
1831, on account of money rel?eivcd for sales of
part of said property; and also the sum of one
thousand one hundred and sixty-seven dollars
and nve cents, amoimt of rents alleged to have
been received since the death of the said George
Jenkins; and also the sum of ei^teen dollars
and twenty-five cents, with interest from said
8th of April, 1831, which had been receiTed
by George Jenkins on the partition of ths es-
tate, for owelty of partition, awarded in 1797.
The defendants appealed to this court. Tlie
case was argued by Mr. Boheit I. Brent and
Mr. Jones for the appellants, and by Hr.
Simmes and Mr. Coxe for the appellee*.
Mr. Brent contended,
1st. That there can be no resDlting trust as
charged in the bill, txynuse that doctrine la
confined to cases where the trust results to a
purchaser taking a conveyance in the name of
a third person, or similar cases. 2 Atkyn's
Hep. 256; 2 Madd. Chan. Prao. 113; 4 Kent's
Com. [ed. 1B32], SOS.
Sd. The bill lakes the alternative ground, in
case the resulting trust fails, that the deed of
March, 1813, executed by Eleanor Jenkins
(the daughter) to George Jenkins (the father),
was obtained by the undue influence of pater-
nal authoritv.
■The answer of the detendantB poal- [■344
lively denies the charge of undue influence, and
this denial is conclusive to ncgntive tbe charge
in the absence of all other testimony.
The case of the complainants stands alone on
the broad and naked principle that all trantac-
tions or dealings between parent and child by
which a beneflt passes to the former is inter-
dicted, ipso facto, by the policy of the law. We
deny that such is the settled rule o( law, and
confidently assert that in every adjudged case
there was some circumstance of undue influ-
ence proved and required by the court as a
material ingredient. Huguenir v. Baaely, 14
Vesey, 291; 2 Alkyne, 264, 2E8; 1 Peere Will<
iams, 607; I Peere Williams. 639; 1 Atkyns,
402; 2 Atkyns, 85; 2 Atkyns, 160; 1 Madd.
Chan. Prac. 300; Green v. Green, 1 Bros. Pari.
Cas. 143; Lewis v. Pead. 1 Ves. Jr. 19; Pratt T.
Barker, 1 Simon's Rep. I; Kinq: v. Ramlett, 3
Mvlne A. Keene, 474, 480; Potbier Obtig. (old
edit.), 22.
Sd. Admitting; that this deed waa purely vol-
untary, an absolute gift of all the property by
a. daughter twenty-three years of age to her
father, still the conveyance ought to he sus-
tained, because it may have been the tme in-
terest of Eleanor Jenkins to plaoe herself oa
the name footinir with her brother and sister by
a diircrent mother; her father was a msn of
large fortune, and it might be greatly to hei
benefit to devest herself of her remote rever
sion, and come In, share and share alike, with
her brother and sister,
lOTl
u*
SuncMB Ooudr olr Ttic UsnXD Statis.
im
At kD aveou, sueb > settlement would be
nfttomible and just tonardi her half- lirot her
•nd ilsttr, and on that ground aloue would be
nUd. 1 Atkyna, fi, 6.
4th. Whatever ma; have been the ftbnM of
parental authority by George Jenhini in p
coring the deed at March, 1B13, the equity
tbe complainanta >• loat by the Upse of time
(ninateeB years) and tbe drcumstance* of the
On thia point It appears that Eleanor Jenk-
ins was uot married for two ye^ra after the
date of the deed, and that ahe lived aeveral
years after her intermarriage with James Pye
(tbe next friend of the infant complainanU) ;
tbst George Jenkins lived until 1S31, and that
not a word of complsint againat tbe fairness
Df the deed of March, 1813, was ever uttered
In the lifetime of either of the ori^nal partiea
to that deed. The court would make wild
work to unravel the transaction under such
dreuautancea. Bower v. Carter, 5 Veaey, 876,
BTSi IT Veaey, ST, 100; 1 Jac. ft Walk. 63.
waa paid by George Jenkins to Eleanor Jenk-
ins on tbe 3d November, 1813, tbe day of re-
cording the deed; this waa a full and adequate
consideration for the reversion dependent on a
robust life, and considering the dilapidated sit-
uation of tbe property. And it further appears
that George Jenkins applied one thousand dol-
lars to tlie ediLcation of Sarah M. Pye [one of
tbe complainants); these facts prove t)ie con
sideratlon paid, and to be paid, for the pur-
chase of Eleanor Jenltins' reversionary interest.
6th. On the hypothesis that the deed of
March, 1813, is to be annulleii, then the court
below erred in not allowing thn appt.>llante in-
terest on the sum of two thousand dollars paid
to Eleanor Jenkins, on tbe 3d of November,
1613, and in not crediting George Jenkins' es-
tate-with the advances made by him to the
children of Eleanor Jenkins, and which could
Bot be considered in the light of donations, if
this deed is pronounced invalid. Slocum v.
Marshal, 2 Wash. C C. R. 401.
Tth. The court erred in charging George
Jenkins' estate with a sum of money paid him
in 17BT, In right of his wife (the mother of
Eleanor Jenkins) for owelty of partition; be-
cause, first, the bill did not claim it (B Cranch,
IS); second, the husband was entitled to the
money aa personalty, not realty. 1 Har. &, Gilt,
8TT.
Mr. Jones stated that there was nothing fn
this case, upon the bill, answer and evidence,
but the case of a daughter of full age having
conveyed her residuary interest in ber estate to
her father, he having an intermediate eatate for
life in the property, as a tenant by tbe curtesy.
At the time of the conveyance he was in full
life and health, and he actually lived eighteen
years after the conveyance was made. There
la no allegation of undue parental influonce.
Tliis ia disclaimed, and the high character of
the father forbids such a belief. The father
appropriated two thousand dollars of atock to
the benefit of tbe daughter on tbe day the eon-
Teyance was recorded; which amount he re-
Mived from the sale, in fee-simple, of a part of
the estate, which was at the aame tlma told for
three thousand dollan.
If the deed k to ba Mt uide, it win be on tbt
principle that such a conveyance by i
daughter to a father cannot be made. That tbe
relations of a child to a parent are sucb aa to
Forbid her the ezerdae of a fair and just dii
cretion and judgment, and that a court of etaaa*
eery 'will presume all such convey- [*t4l
ancea fraudulent, and will avoid them.
Mr. Jones denied that such principles wets
just to the relations of a parent to a child, and
he denied that any such rule bad been estab-
lished by tbe decisions of courts of chancery.
No case had been dted, and none could ba
found, in which tbe mera fact of such n eoi-
veyanee furnished ground to vacate it. In all
the cases there had been other matters which
satisfied tbe Chancellor that the deed abo^
ba avoided.
The presumption should be in favor of such
a transaction as that before the court. It wa*
between a father and hia child; between ooc
who had every inducement, from nature and
from duty, to take care of and protect and pro-
mote the interests of his child. Would tht
court, against these bonds of union, ncainst
the infiuence of a relationship whieh should
be believed to operate only for the benefit of
the child, infer the violation of every duty,
and believe tbnt all these feelings were disre-
garded? Would they apply a rule to auch a
case, which could have had no origin but in a
bosom devoid of every affection which ahould
prevail in itf A court of chancery, to adopt
such principles, muat disregard the beat and
the most influential sympathies and aO'ectioos
of our nature, and must look at man aa want-
ing in all that ornaments and dignifies him.
Mr. Semmes, for the appellees, after fully
stating tbe facts, regretted that his abai^aee
from the court during the opening argument
of the counsel for the appellants on the previ-
ous day would limit his remarks to a considera-
tion of the causes of error assigned fay tba
appellants In tbdr printed brief. These as-
signments of error be would, however, tnJce 19
aeriatim, and felt confident that an inveetiga-
tion of them would disclose the whole merit*
of the controversy, both on the l«w njid thm
facts.
The appellants contend that the decree ought
to be reversed for the following reasons:
1st. That the court below erred in refusing
to allow the appellants to amend their nnawer,
upon newly discovered evidence, so as to plead
the fact of a valuable consideration hnvii^
been paid for the property conveyed in tlw
deed, m order to let in jproof of the same.
The prayer of the petition was properly n-
fused. It was made after the hearing — «fl«r
the eourt had pronounced their opinion in Vb»
case, and were about proceeding to enter a
Anal decree. Petitions *ta amend the f S4t
pleadings both at law and In equity ki* ad-
dressed to the sound diaeretiou of tbe court;
when that discretion baa once been exereined it
absolute, and admits of no question. A rt-
fusal to permit such amendments can never ba
assigned aa error in an apneliate court. Wot
the action of the court below aubject to sodk
reviaiou. it would cease to have a diecretha ia
the matter. Amendments In an answer wffl
never be permitted after the hearing. CStai,
1 Harr. Chan. Prac. ZSS. et s^-i KawIinM v.
»Mva IS.
JsmuHs KT Ai. r. Pn n u.
MT
Fnran, I P. Wnia> UT) CU]<nrar t. Dobaon,
1 Braekenborou^h, 110.
But the petitiOQ w>a rfshtly refuMd on the
tMe of it. It doe* not allege the diacovery of
new endcDee, but ii in truth a pnyer to
■mend, that a new venion ma; be given to ft
fact already before the court, and on which they
bad judtcially paeaed. The amendment de-
■Ired i*M that they might allege a transfer of
two thoueand dollar* in hank itoek, made No-
Vfoaber 3d, 181S, to be the coniideration of the
deed executed on March 16th, 1S13. It waa a
petition for a new argument on the state of
faeti already cooBidered by the court. The
■oawer of Jenkins had alleged the transfer Qf
large amounts of bank Btock; the report of
the master comniissioner and the certificate of
the bank clerk had ascertained that amount to
Iiave been the two thousand dollars in ques-
tion; this was then before the court, was
daimed aa an offset in the court below by the
■ppcllants, and when, two years after the com-
■niasioDer's report, the court were about pro-
ceeding to a final decree, this petition waa put
in for an amendment, by which a fact so well
known might be wrested to a purpose that the
■calous defense of the appellants below had
iMver until that moment contemplated. This
transfer of bank stock, which can never be ad-
mitted as ^tbe consideration of the deed from
Bleanor to her father, wit! assume a more im-
portant aspect in conBiderlDS the next cause of
error in the appellants' brief.
The petition was, moreover, defective in a
^wtertal point. While it alleged that this
twnk stock was the consideration of the deed.
Knd prayed tiK amendment to let in proof of
that fact; it did not allege the existence of evi-
dence to substantiate the position, nor show a
ribable case to the court that such was likely
be proven. The petition to amend was, un-
der all the circumstances, properly refused.
The next cause of error is:
Zd. That said deed does not operate as a re-
■nlting trust, as charged in this case-
Although it is perfertly competent for the
S4B*] appellees to insist that *in this case a
trust did technically result to the grantor and
her heira, yet they do not consider it necessary
to rely on that point. That such trust on the
facta of this case would havs resulted, cited,
S Btory's Equity, 440,
The facte show that the original parties to
tlM deed must have contemplated a trust. The
two thousand dollars now sought to be made
tlia consideration of the deed was part of the
larger sum of three thousand dollars, for which
one of the lots, covered by it, was sold a few
4»jt before to Harper A Davis. Here was a
direct apptieation by the grantee, to the use of
tbe grantor, of part of the proceeds of the prop-
erty.
It was a direct recognition of tke implied
trust by George Jenkins, and alone would war-
rant the Inference that such was the contem-
plation of the parties. But this point in the
appellants' brief, as well as the next, which is:
Sd. That there was no "undue Influence"
tucd, aa charged In this ease, and that the evi-
doic* upon this point, so far aa it goes, show*
tha reverse, mav be properly Included under
tba f Mirth ; wbioh Is the only material question
praaented bj tka r«oonL It nay bt •• well,
• Ifa ed.
faowever, here to remark that the appellee* do
not rely on any allegation of actual ''undue in-
duence;" they do not impugn the validity of
this deed on any charge of actual fraud. Tba
grounds on which they contend for its nullity
will be presently considered. The answer of
Jenkina is conclusive as to the point of re<
atraint and coercion. Being responsive to the
bill, and uncontradicted by testimony, it dia.
poses of that Question. The appellees, then,
must resort to higher and sterner principles ot
equity jurisprudence to sustain their case.
The next and only important point mads by
the appellants, is;
4th. That said deed is valid, both in law and
No doctrine of the law is more flrmly estab-
lished, or more frequently acted on by courta
of equity, than that all agreements, contract*,
and conveyances procured by fraud, imposition,
or undue influence, are null and void. Aa the
rule is imperative where actual fraud is estab-
lished, so is it equally binding when the cir-
cumstances of the case, or the relations sub-
sisting between the parties, are such as to raise
the presumption of implied fraud, or to war-
rant the inference that one of the contracting
parties might have been subjected to oppression
or undue influence. The rule may appear ar-
bitrary and unjust at first sight, as calculated
to impair tbe free exercise of "volition t*249
in persons competent to contract, and a* hav-
ing a tendency to destroy vested rights and
operate injuriously on innocent third persons.
Correctly viewed, however, it will not appeal
obnoxious to such objections. The policy of
the law must lay out and deflne certain general
principles as guides of action, and rules for
eonatruing all instruments and agreements.
parties whom the law does not consider
as altogether sui juris, in respect to the exercise
of proprielary rights, or as liable to be inllu-
incapacitated persons from the effects of their
own injudicious contracts, it well becomes tbe
jealous spirits of the courts to have marked out
certain social relations as peculiarly subject to
suspicion and caution, in respect to all agree-
ments between persons affected by considera-
tions or motives arising out of the relationship
in question. Where one party is not perfectly
free to act, and the other party has availed
himself of his power and influence in procur-
ing a conveyance or contract, courts of equity
dispense with proof of actual fraud or imposi-
tion ; but inferring constraint from the relation*
of the parties, will set aside such contract or
conveyance, as contrary to public policy. In
all cases, the onus proband! is on the party set-
ting up such contract to show an adequate con-
sideration, and the bona fide character of tha
transaction. The relations between guardian
and ward, parent and cbild, solicitor or attor-
ney and client, trustee and cestui que trust,
master and servant, and the cases Of expectant
heirs and of reversioners, are jealously watched)
and all contracts made during its enstence by
the minor party in each of these relations to
the superior are scrutiniied jealously; and, in
lame casea, on bare •uapkdon of undue infln-
68 10I»
BUTBBMK C0U«T or TSB UKTTO SttHtM.
•um; In otheni, on the mere relktlon of the
partlea, fnud Is inferred, emd the contract
eonrejance let laide. Contracta made «o
after the temiiDatlon of euch relatfoni are,
the Bame principle of policy, subjected to the
operation of the aame wholesome rule. Nor
will lapse of time or the death of the fraudulent
purchaJscT so affect the case as to preclude the
grantor and those claiming under him, from set-
ting aside the contract. Authorities cited, Morse
T. Boval, 12 Ves. 371; Wright v. Proud, 13 Ves.
137; Murray v. Palmer, 2 Sch. ft Lef. 471; 0«.
mond T. PitEroy, 3 P. Wms. 131; Hnguenin t.
850*] Bnaeley, 14 Ves. *273i 2 Eden, 286;
Rhodes v. Cook, 2 Bim. &, Stu. 448; Davis *. The
Duke of Marlborough, 2 Swenst. 130; Oowtand
V. De Faria, 17 Ves. 20; Peacock t. Etbus, IB
Ves. 612; Evana v. Lewellen, 1 Cort Rep. 833;
S. C. 2 Bro. C. C. 120; Gwynne t. Beaton, 1
Bro. C. C. I; Bell t. Howard, 9 Mod. 30
Young T, Peachy, 2 Atk. 264; and the case
Glissen t. OgJen, therein refHtred to; Heron
Heron, 2 Atk. IflO; Blunden v. Barker, 1 P.
Wms. 630; S. C. 10 Hod. 461; Broderick r.
BroderFck, 1 P. Wms. 239; Scrope v. Offley, 1
Bro. P. C. 278; Gould v. Okeden, 4 Bro. P. C.
1D8; Twisleton v. Griffith, 1 P. Wms. 310; Jer-
emy'i Equity, 304, et seq.; 1 Story's Equity, 304
to 324, inclusive; and Waller V. Armistead's
Administrators, 2 Leigh, II.
The case at bar is one peculiarly calling for
the application of the principlea recognized and
established by the suthoritiea cited. The case
t* that of a deed made without consideration,
from a young daughter, not twenty-three years
of age, to her wealthy father, with whom she
raided; conveying all her property. Her
father was tenant by the curtesy, and held the
particular life estate; her estate was the rever-
•Ion descended to her from her mother, and de-
pendent hereon. She waa, thfn, both under
the parental influence and presented the case of
* young heir dealing for an expectancy with a
|nrty owning the particular estate for no con-
■ideratioQ, and with no declaration of trust; a
party whose position peculiarly subjected the
present contract to the implication of fraud, or
the suspicion of imposition.
The ground assumed by the appellanta that
this is a voluntary deed, and therefore good
against the grantor, and all claiming under her,
cannot, on this aspect of the case, be main-
tained. The general principle introduced by
the statutes 13 and 27 Eliz. (re-enacted in most
of the States), that voluntary deeds, so fur only
as existing creditors and subsequent bona Sde
and unnoticed purchasers are concerned are
void, la admitted by taw. The exception 'which
the courts imply from the terms of the statute,
and the usual motive to defraud creditors in all
■uch conveyances, as B);ainBt the grantor and
bit sub-claimants seeking to recover the prop-
arty or vacate the conveyanee, is the sole ex-
iMption to this general rule. A party who haa
conveyed away his property to evade the pay-
ment of his just debts, shall not be permitted
to take advantage of his own wrong and reclaim
liis property agninat the will of his grantee, the
partner in the Fraud, when the elalma of credit-
$61*] ors may have been otherwise aatiafled.'or
■ necessity for their interference has passed
ftway. This principle, with that other plain
rule ^.yiag fuiy party comptleiit to contract and
1014
bo good,
must be made oeteris paribna. If the pMity
grantor be an Infant, lunatic, or anbjected to
the operation of those relations ao jealously
watched by court* of equity — in some cmaea
from the absolute nullity of the contract, fa
others on the principles of public policy — ^at
contract will be set aside. By a voluntary daed
is meant a gift without consideration; wooU,
then, a voluntary deed, executed under iliinM.
be sustained T The relation of the partiea as-
similates the present deed to one obtained bfy
actual fraud or undue inflnence.
Tha remaining causes of error wero In ivtv-
enca to improper itema in the master eommis-
sioner's account; questions as to the effect o(
evidence, the allowance of interest and coats,
and the right to credits in the natnre «f offssta.
Though naaterial to tha merits, tha diseDMin
of these points is not of sufficient general te-
portance to be set out in the argnment.
Mr. Justice Ihompion delivered the milalw
of the court:
This case cornea up on appeal from tha Qr-
cuit Court of the Distriot of Columbia for tht
County ot Alexandria. Ilie appellea* w«a
the complainants in tha court bdow, and aa
heirs-at-Iaw of their mother, Eleanor -**"*^— ,
filed their bill by their father, James B. P^e, m
next friend, to set aside a deed given by tkrir
motbi-r to George Jenkins, her father, bearaf
date the 16th of March, 1813. The bill ^
that the deed was made wholly without c
if their claim cannot be sustained on that
ground, they charge that the deed waa obtained
by the undue inlluence of parental authority,
and therefore void in equity, againat the ssid
Eleanor Jenkins and her heir*.
The consideration expressed in the deed ii
one dollar; and as to the allegation of nndva
influence, the bill charges that the said RleaM
inherited, as heir of her mother, the land con-
veyed to her father, and in whirh her fatha
was entitled to a life estate. That at the tint
of her mother's death she was an infant of Ttrf
tender years, residing with her father, and con-
tinued to reside witn him until her m«rrisga.
That she never was informed of the extent at
'her property, to which she became en- {*SSI
titled on the death of her mother, and having
led a life of great seclusion in the eonstrj. at a
distance from Alexandria, where the lantda an
situated, she had no means of acquiring infor-
mation on the subject. That very soon after
the said Eleanor had attained the af^ of twen-
ty-one years, and whilst she still resided with
her father, and remained in ignoranc* of tha
extent and value of her rights, the said Gaorp
Jenkins, availing himself of his paj-entnl an-
thority, and of the habit of Implicit obcdtcnea
and submission on the part of hia child, pr*
cured from her the deed in q — ""~
The t
atertal charge i
rnding to show that uy ntidne ii
exercised by the father to obtain the daad fi
bat daughter, but that tha aat «•• vahnt
the deed in question,
of the sppellanta deny ""VT
! and specifleation (n the hB
jKtism n AL, T. Pn n u.
ud free m her part. That ilic was well ko-
qoainted with hrr riKhU and the value of the
property. That at the time of executing the
deed the wu twenty-three years of a^, and
that the tame was not done in expectation of
her marriage, aa she waa not married for two
|«BrB afterwards.
The mere nominal consideration expreaeed
on the face of the deed waa enough to jwai the
eatate of the ^ntee, no uaea being declared in
the deed. It is true, aa a general propoaition,
that he who pays the eoniideration means, in
the absence of all rebutting drcumatanee*, to
pnrobaae for his own benefit, and there may be
a resulting trust for the use of the party paying
the coDHideratSon. But this is founded upon a
mere implication of law, end may be rebutted
by evidence showing that auch was not the in-
tention of the parties. And in the present case,
the evidence is conclusive to ahow that no such
refulting use was intended. But it is unnecei-
sary particularly to notice this evidence, aa this
pnrt of the case was not very much pressed at
the argument. And in addition to this, the evi-
dence shows that on the 3d of November, 1B13,
the day her deed waa offered for record in Al-
exandria, George Jentiins paid to his daughter
two thousand dollars; which, under the situa-
tion of the property, might well be considered
nearly, if not quite, an adequate consideration.
The property being in a dilapidated state, re-
quiring great expanse in rvpaira: and the
grantee, George Jenkins, having a life estat* in
it, wliich, from the circumstance of hie living
eighteen years after the date of the deed,
there is reason to conclude that the state
of his health and constitution was such at that
time as justly to estimate his life eatate of
considers ble value.
353*] 'The evidence of the payment of two
thousand dollars, in addition to the nominal
consiileraliou of one dollar mentioned in the
deed, waa admissible without any amendment
of the answer. It rebutted the allegation in the
IhI! that the deed was made wholly without
consideration.
liut the grounds mainly relied upon to invali-
date the tli-ed were, that being from s daughter
of her father, rendered it at least, prima facie,
void. And if not void on this ground, it was
so beoauae it was obtained by the undue inBu-
ence of paternal authority.
The l!rst ground of objection seeks to estab-
lish the broad principle that a deed from a
child to a parent, conveying the real estate of
the child, ought, upon considerations of public
policy, growing out of the relation of the par-
ties, to be deemed void; and numerous coses
in the English chancery have been referred to
which are supposed to establish this principle.
We do not deem it necessary to travel over alt
these authorities ; we have looked into the
leading cases, and cannot discover anything to
warrant the broad and unqualified doctrine
contended for on the part of the appellees.
All the cases are sccom^Rnied with some in-
gredient showing undue inHuence exercised by
the parent operating upon the fears or hopes of
the child, and sufficient to show reasonable
grounds to presume that the act was not per-
i'ectly free and voluntary on the part of the
child; and In some esses, although there may
be drcumstancea taitdliia in some small degree
to shew undue influesae, yet if the ■greemant
appears reasonable, It has been considered
enougb to outweigh light circumstanoea, so aa
not to affect the validity of the deed.
It becomes the less necessary f or ua to go into
a critics^ examinaticoi of the English chancery
doctrine on this subject, for should the cases be
found to countenance it, we should not be dis-
posed to adopt or sanction the broad principle
oontended for, that the deed of a child t« a
parent is to be deemed, prima fade, void. It la
undoubtedly the duty of eourts carefully to
watch and examine the circumstancea attending
transactions of this kind when brought under
review before them, to discover if any undue
influence has been exercised in obtaining the
conveyance. But to consider a parant disqual-
ified to take a voluntary deed from hia ebild
without eonsideration. on account of their re1a>
tionship. Is assuming a principle at war with
all fllial as well as parental duty and wT-
fection, and acting on the presumption that a
parent, instead ol wishing to promote the in-
terest *and welfare, would be seeking [*3B4
to overreach and defraud hia child. Whereas,
the presumption ought to be, in the absence of
all proof tending to a contrary conclusion, that
the advancement of the interest of the child
was the object in view, and to presume the
existence of circumstances conducing to that
result. Such a preaumption harmonizes with
the moral obligation of a parent to provide for
his child, and is founded upon the same benign
principle that governs cases of purchases made
by parents in the name of a child. The prima
facie presumption is that it was intended aa an
advancement to the child, and so not falling
within the principle of a resulting trust- The
natural and reasonable presumption in all trans-
actions of this kind is that a benefit was in-
tended the child, because in the discharge of a
moral and parental duty. And the interest of
the child is abundantly guarded and protected,
by keeping « watchful eye over the transaction,
to see that no undue influence was brought to
In the present case, every allegation in the
hill tending to show that any undue influence
was used, is fully met and denied in the an-
swer, and is utterly without proof to sustain it.
And, indeed, this alleg&tion seemed to be aban-
doned on the argument.
But if anything was wanting to resist the
um on the part of the appellees, and to estab-
lish the deed and the interest derived under it,
it will be found in the lapse of time. The deed
bears date the Sd of November, 1S13; the
grantor, Eleanor Jenkins, then being twenty-
three years of age- She was married about two
years thereafter, and died in the year 1818, and
not a whisper of complaint waa heard against
the transaction during her lifetime. Gieoige
Jenkins, the grantee, lived until the year 1831,
and no complaint waa mads in his lifetime;
after a lapse of eighteen years, it is dilEcult, If
not impracticable, fully to explain the trananc-
I«pse of time and the death of the parties to
the deed have always been considered in a court:
of chancery entitled to great weight, and al-
most controlling drcumstsncea, in eaaes of this
kind.
But Uw oiieunutaBeea as diaclgirt by the
154
Smnn Odctt or na UiniBi Stab
Mwifa iwt only rebut vrtrj pnauinptioii of un-
raimeu on the part of George Jenktna, but dia-
'CloM clrcunstanneB tending to show that he
WBi governnl by motives highly hononble and
«omni end able. He was a man of iotge eatate;
tke property eonvpyed to him hy his daughter
«aa Id « dilapidated and uiiprofllnble condi-
tion. He had a life eatate in it. And it would
'have be«n unreasonable if not unjiiet to hii
Sftft'l vther children, to *)iave reqiiirvd hitn
M ikcur great expenaea in improving this prop-
^TtFi which would inure to the exclueiva beneUt
■Vl nia dnugliter. His object, aa well aa that of
Va daughter, aeema to bave been to enable him
Om more eaaity end aatiafaetorily to make mi
•qual distribution of fais property among all hia
(ihildren; aa well the said Eleanor u thoM he
had by a second marriage. This waa % meaaure
well calculated to promote harmony amtmg hia
children ; and hia intention to carry that diapo-
■ition of his property into execution was mani-
fested by the will he made, which failed, how-
ever, of its full operation, by reason of lame ia-
formality in its execution. But the appelleea
have succeeded to a full and equal abare of his
estata, under the distribution which the law haa
made, which ia all that in equity and justice
they could claim.
Thia view of the ease renders it unnecessary
to notice the points made on the argument in
relation to the aecounta which the appelleea
were caJled upon to render.
Mr. Justice Cation.
I concur with the majority of the court that
the decree b« nvened, but, differing moat
materially with the reatona and principles on
which the opinion of my brethren proceeds, I
will briefly atate the difference, hoping aineera-
ly I may be mistaken.
The cause must be reviewed here In the same
form that the parties preaented it to the Circuit
Court; thia ia due to the court below, and the
only mode we can pursue as a court of appeals.
The bill was illed in July, 1B33{ the answer
In May, 1834; the replication in April, ISSS;
and, on the 11th of May, the cause was, by
•greement, set for hearing; and on the 2flth <^
October, lft35, waa hi^ard upon the bill and an-
awers, with two additional facts, which the
Eirties admitted of record, to wit: I. That
eorge Jenkins was, at the date of the deed
from his daughter to Mm In 1BI3, a man of
large fortune, and ao continued till bia death.
E. That the deed conveyed all the estate to
which the said Eleanor waa in any manner en-
titled. Upon thia case the court, on the 2Stb
of October. I83S, decreed for the complainants,
anl ordered *n account to be taken of the rents
of the property in litigation since George
Jenkins' death, the parcels aold by him In hia
lifetime, and the value of the estate ia 1613, etc.
196>1 *0n the 13th of May, 1837, the maater
commissioner reported, and on the 31st of
October, 1037, the report was eonllrmed by a
llnal decree of the court. Upon thia proceed-
ing. It will be remarkci] that the decree of
October, 1833, could not be revened by that of
1837. on evidenre fumiiihed to the commission-
only have been rMuhnd by m petition for K M-
hearing (if Hied in time) or by a bill of revlaw.
and we muat, therefore, examine the decree M
l83iS, OB the facU than presented to the Circait
Court,
The bill alleges the conveyance of 1813 to.
have been executed without any valuable con*
nideration, and that tbe daughter acted under
the influence of parental authority. That it
waa executed without valuable considerathm
the anawera admit; but they deny that anv
constraint or parental authority waa eierciseo.
and respond that tbe deed waa made freely and
voluntarily. They also admit that Eleanor Jen-
kins was bom the 17th September, 1780; that
her mother died in 171)6 1 that when tbe deed
waa made, Eleanor was only einhleen montha
over twvnly-one years of age, and that she waa
the sole heir of her mother; the father and
grantee being tenant by the curtesy of tbe
lands descended. That Georse Jcnlcins had
two other children by a ditTerent mother, who
are the defendants; and that he died in 1831.
intestate as regarded hia real estate.
Kkanur Jentiins married in 1815, and died in
1B18, leaving the complain anta her heira.
It is also averred in the answers that the
property in 1813 was in a dilapidated condition,
and that it had auffcred by fire, which was a
principal reason for making the conveyance.
The averment la independent of any statement
in the bill, ia traveraed by the replication, and
BO proof having been made to iiiatain the aver-
ment, of course it cannot be noticed here. The
defetidants also insist that the bill should b«
diemisspd because of the lapse of time, and tba
death of partiea and witnesses.
This being the case presented to the Cimdt
Court in I83S, thn question is, did that court
err in ordering the defendanta to account!
Time and the d^ath of George Jenkins aaide, I
think it impassible so to hold, cousistently with
the beat eatablisbed doctnnes governing a court
of chancery.
Tlie elements of the decree below werv, 1.
That the grantor, Eleauor Jenkins, was a
young heir, and a woman, when ahe made the
•conveyance; that it was of her whole ['Sft?
eatate, without consideration, and to a parent
of largo wealth.
i. That shp was an hptr of an eatate in t«-
version, which descended to her in tender in-
fancy; and in regard to the pooacKsion and en-
joyment of which she must be deemed and
treated, in a court of chancery, as an expectant
heir.
3. She conveyed to the ailiiEt tenant for Itte,
who was her father and natural guardian, with
whom she resided, and on whom abe waa d^
pendent.
I propose to examine the cause, auch as It b
found; not to speculate upon auppoaed cases of
remaindera acquired by purcliase, and aold by
him who tbui acquired; nor upon casea where
the tenant for life joins In the sale. These and
other transfers of remainders, may depend oa
very diiTerent principles from tbe caae befon
the court.
Tbe two first grounds, governing tbe ded*
aion of the Circuit Court, will he treated togeth-
er, disregarding for the present the relation tl
father and daughter.
In tha UnguB«e of Sir William Grant, to
lUS
JxRKiiis n Ai. T. Pn n u.
tsr
Gowlind T. Dc FuU, 17 V^ey, 23, it will b«
Ud down that ^hii la the oaae of k person
who, in th]a court, is considered u on expect-
ant bciri" uid "tliat it is incumbent upon
those who have dealt with kn expectant heir,
relative to hia reveraionary interest, to make
good the bargain; that is, to be able to ahow
that a full and adequate consideration waa
paid. In all auch cases, the Isaue is upon the
adequBcj of price; no proof of fraud ia necea-
sary, aod the relief ia given upon ^neral priu-
ctples of mischief to the public, without re-
quiring particular evidence of actual impoal-
twn." 2 Atk. 28; Jeremy's Eq. 3B8; 1 Story's
Eq. 330, sec. 33B; I Fonblanque's Eq. bk. 1,
ch. 2, sec. 12; 1 Madd. Ch. 118, atat« the re-
mit of the adjudications.
As some doubts are suggested by Mr. Justice
StoiT and by Hr. Jtit-my, in the pasaages
cited of their treatises, whether the strictness
of the doctrine applies to cases of dealing for
Tcmaindcre, it is deemed necessary to go into a
•light review of the leadin;; adjudged cases, to
■ee if any conveyance resirmbling the present
has been permitted to stand. It ts but justice,
however, to say that I do not suppose either of
those highly respectable authors intended to
question the doctrine in a case lilce the present,
irhcre the estate in reversion descended upon
mn infant heir, encumbent with a life intereat.
■nd the expectancy was pven to the tenant for
life, within eighteen months after the heir
S58*] came of age. That such purchase la *a
constructive fraud, and the purchaser, If a
stranger, compelled to account and give up his
bargain if found to be advantageous, baa not,
for a century, been an open question. The con-
veyance it treated as a mortgage, and the
grantor relieved on payment of the principal
advanced and Interest, without Inquiry wheth-
er there was fraud or Imposition.
The doctrine, during the seventeenth century,
met with some opposition, especially in the
reigna of Car. II. and Jac. 11.; but in Nott v.
Hill, 1 Vera. 169; 1 P. W. 310; Newland on
Contrads, 438, and Bemey v. Ktt, 8 Vem.
14, it received the most conclusive confirma-
tion short of the judgment of the House of
Ijords. In the former case, Lord Ch. Notting-
ham decreed redemption (in hie own phrase);
on rehearing. Lord Keeper North reversed this
decree, snd refused relief; hut this last decree
^as agHin reheard before Lord Ch. Jefferies, 2
Vem. 97, and reversed, and that of Lord Not-
tingham confirmed. So in Beraey v. Pitt, the
raport of which is found in 2 Vem. 14; 1 P.
W. 311; Newland Con. 347, Lord Notting-
ham denied relief; but Lord Ch. JefTeries, 2 Jac.
2, in rehearing, reversed the decree, and let in
the grantor to redeem on the usual terms of
paving the money advanced with interest-
in the case of Twisleton v. Griffith 11710), the
exception n-as again Invoked that there was no
fraud in fact; it was urged that at this rate the
heir of the remainder could not sell, as no one
would buy, to which Lord Cowper replied:
"This might force an heir to go home and sub
mit to Us father, or bite on the bridle and en-
dure Borne hardships; and in the mean time ha
might grow wiser, and be reclaimed." 1 P.
W. 813.
In Peacock v. Kvans, 10 Vea. S14, ttie Mas-
t«r of the Bollj aaya (when apealdag ti an b^
• Ii. «d.
aetling the expectancy of a remainder during
hia father's Iife)i "To that class of persons
this court seems to have extended a degree of
protection approaching nearly to an incapacity
to bind themaelvea by contract;" and he cites
with approliation the expressions of Lord Cb.
Eldon, in Coles v. Trecothick, B Ves. 234, that
"the case* of reversion and Interests of that
sort go upon a very different principle; in some,
the whole duty of making good the bargain,
upon the prineiplea of this court, ia upon the
vendee, as in toe instance of heirs expectant."
And Sir William Grant added: "The tendener
of this doctrine to render all bargains with sneh
persons very insecure, it not altogether Im-
practicable, seems not to have been considered
as operating to prevent its adoption and estab-
liahment) 'but, on the contrary, some [*SBt
of the judges have avowed that probable con-
sequence as being to them the recommendation
of the doctrine.
In the case referred to, it was admitted there
was nothing approaching to fraud or imposition;
yet the conveyance was set aside, because a
full price had not been paid. All that could be
said of it woa that Mr. Peacock had obtained a
very advantageoua bargain.
8o In Gowland v. De Faria, 17 Veaey, 23,
where reversionary interest had been sold. In
which the plaintiff's mother had a life estate,
all fraud waa denied, and no proof introduced
save that the consideration was not full; and
in reply to the argument of manifest faimesa,
the Master of the Rolls replied: "la all these
cases the Issue Is on the inadequacy of price.
This is the caae of a person who, in thia court,
is considered an expectant heir. He has charged
bis reversionary interest, and the question ia
whether he has received an adequate consider-
ation. Upon that question the evidence ia all
one way" and the conveyance waa treated as a
mortgage. Vide Davis v. The Duke of Marl-
borough, 2 Swanaton, 147.
To cite other authorities to sustain the po-
sition assumed would justly be deemed an in-
cumbrance; and I will only ask, had Eleanor
Jenkins conveyed to a atranger instead of her
lather, could a court of chancery have refused
her heirs relief, had they come in timel
And by way of introducing the next propo-
sition, it will be submitted whether her latter
stood upon higher ground than a stranger.
To a proper understanding of thia question,
a slight reference must be had to the facta re-
ported by the commissioner, aa they appeared
on the final decree In October, 1837. My
brethem have given them some consideration,
nor will I pass them by; although the plead-
ings It Is apprehended exclude them, they will
be taken in connection with the answers and
admissions. George Jenkins, in 1818 and at
his denth, was a man of large wealth. He had
two sets of children; one child by a flrat wife,
and two by a aecond. The answer avcra ho
procured the conveyance to do justice in hia
family. The account shows that EJleanor'a
and Qeorge Jenkins* joint interests were worth
when the deed was made in March, 1813, eight
thousand nine hundred and ninety-two dollars
.and ninety-seven cents; and that about si\
' months aftor tha exocntlon of the deed, Qeorga
I ilenldna caused to be vested In hia daughter
' BlooDor, two tbouaaad dollaia' worth of oaak
t«Tff
BunEiu Oovait ov rwrn Uiiin» SC4n
■toekt which w«a sold by Mr. Fy« ■hortty after
be married Eleanor. Further than this, nothing
Wka advanced to the daughter. George Jenk-
SfO'J ioB 'died inteatate aa regarded his
kaada; whethiT b; accident or design, mattera
nottaing to the infant children who are plain-
tllTa. The anawer aven that the comptainantg
bj the inteEtacy are entitled to two elevenths
by their grandfather** estate 1 whereae were they
to obtain the landi conveyed by the deed of
1813, and came in a« joint oein of the retidue,
they would Uke more than one half. What
■dvaneee were made by their father to the
two children of George Jenkioi, who are de-
fendant*, doe* not appear; but tliat they take
nine elevenths of the whole estate by the in-
teata^, conclualvely proves, if George Jsnicin*
obtained the deed, "hest to enable him to do equal
Justice to all hi* family," that he did no auch
Sual Juitice to hi* daughter BleanU' Id her
etime, or to her children at hie death. He
waa a man of large wealth, and waa bound to
do oqual juatice, if the answer be truei and the
defendant* aver they personally know the fact
to be BO, and that this waa the consideration of
the conveyance. If It was obtained tor one
furpose, and the property applied to another;
>r instance, to advance the fortune* of the
•econd set of children, It i* well eettled the deed
■hould be set aside. To prove it, I need only
cite the case of Young v. Peachy, S Atkyn'a
2M, whose authority has never been questioned
since Lord Hardwicke^ time.
Again: Two thousand dollars In bank stock
waa a poor advance for a man of large wealth,
having only three children, on the intermar-
riage of one of them; and we will take it that
Sleanor was not Intended to be tuned off dea-
tituto.
The facta thus Introduced from the com-
niasioner's report to control the effect of the
tint decree (could they be heard for such pur-
poae), are therefore of no value, and cannot
help the conveyance. How, then, did the father
■tandt
Ths Jealousy with which courta of chancery
watch contracts made by parents with children
la laid down with terseness and much accuracy
by Mr. Justice Story in hi* lecture on con-
atmotive frauda. 1 Stor/s Qi. SM. He
•ayai "The natural and juat influence which
a parent baa over a child, render* it peculiarly
important for courta of justice to watch over
and protect the interesta of the latter; and
therMore all contract* and conveyances, where-
by beneflta are aecured by children to their par-
ents, are objects of jealousy ; and if they are not
rsaaonaUe under the drcumstancea, they will
be set aside."
Ur. Newland in hia treatise on contracts (ch.
SO, page 446), give* the result of the authorities
SCI*] with great cleameaa and force, and 'the
aeouracy of which is fully borne out by the
eaaea. "It la a natural presumption," says he,
"that a parent posseases influence over the mind
of hi* child. Equity therefore regards with a
Jealous eye contracts between them, and very
properly considers this relation to give addi-
tional weight and suspicion to oiroumstanee* of
fraudulent aspect, which the case may involve."
And Lord Eardwicke said In Young r. Peaehy,
Z Atk. EfS, where the transaction in lla Icad-
iaf featima mueh rasembled tUa, the tmtbet
1«T«
having obtained a roluntarr e _ _ _
a daughter; "But the case is griutfy atrangth-
nned when It comes to be considered that tUa
was a recovery obtained by a father from hia
child; and when this is the case, it afforda an-
other strong circumatance in ordn to raUara
the plaintHn."
The British adjudications, uniformly aad
firmly supporting the doctrine, are dtcd by tba
writers above referred to (1 Stoic's Bq. 306:
Newl. 440; Madd. Chan. 310), and withwhick
I will rest content; adding, however, that tfea
case before us is as bare of alleviating dmiM-
stances, tending to exempt it from the general
rule, as any I have found reported, or rnown
in my experience in life. Had the conveyaoea
been made to a stranger, it could not have been
tolerated for a momenti and having been nude
to the father, in the language of Mr. NewUad:
"The relation givea additional wei^t aad
suspidon to the circumstances which the eaaa
iuvolvea." Its decision rests not on diacretioa,
but on settled rules of property, which, tt fa
supposed by me, should not be disturbed.
But first, more than twenty yeara al^taed
from the execution of the conveyance to the
time of nling the bill; and second, it was not
Bled until after George Jenkins' death. Tht
daughter and her heirs having been at all tune*
since 1613 free to sue, and having had the
means, and being under no undue restraint,
the presumption is, that time has destroyed
the evidence going to prove the fairnesa of tkc
transaction, or that if the suit had been brought
in the grantee's lifetime, he could haveaddoccd
it. I confess, however, it i* with some diffi-
culty the presumption can be maintained, un-
der the circumstances of this cause, by the
British adjudications; yet, our migratory habita,
and the consequent loss of evidence are soeh.
that preaumptions founded on time muat, in this
country, be firmly supported, without letting
in doubtful exceptions to destroy their fotva;
especially when those In whose knowledge tbc
facts rested which might have explained tkc
transaction are dead; aa in Brown *. Cartar, fi
Vea. 87E, where the Mil was brought to aet
aaide a settlement tinder *an sgreement [*SCS
between father and son made in 1769. The
conveyance was voluntary, aa in the inataaea
before the court. The father died in 17S3, np
to which time no comp'sint had been made,
and very soon after the bill was filed. The
court held that "though transactions of tUa
kind will be looked at with jealousy, that tha
father should not take an improper advantaai
of his authority; the complaint mu*talw«ya Sa
made in time, not after the father ia daai,*
etc..
The same doctrine was held by Lord Eskiaa
in Morse .V. Royal, 12 Vea. 376, and relief ro-
fused because of the lapse of time and the deftth
The British ease, however, which ha* moat
labored this question, is that of Chalman t.
Bradley, I Jao. t Walk. 56, in which the
authorities are referred to where the claims td
expectant hdra to have decrees for accoanta
and the rescission of contracts wera rajocted,
because of the lapse of time intervening h^
tween the date of the contract and theCUngcf
the bill.
The general doctrine Uwt full force wii ba
OuuwAi *. FiHUT un Bim.
|dT<n to prMumptiona founded on time, and
tutaUlfl ileuiHiids will not be eurarced touaai-
pel pirtiri to account, nor to disturb contract*
or poMeuions, ie Mtiiblished on & very firm
fonting u the doctrine of tbii court in Ricard
T. WillitniB, 7 Wlieut.; Hughes v. Kdwards, B
WhuL; Wiliison v. Watkins, 3 Feteiv; Iililler
•. M'lntyre, 8 Peters; Piatt v. Vattier, B Pe
tcra, inJ other decisions. But the difCcultf in
nich ctieii u tbe one before the court is that
the expectant heir is uauaJl; destitute, ignorant
nf his rights, and not on an equal footing with
da vendeej and the courts of chancery presume 1
:hat he contracted in subservience to circum- j
Ltances, either of helpless poverty or ignorance;
ir at lesst superior knowledge Of facts on part
if him with whom be contracted. When the
acts proved are in accordance with tbe pre-
umptioB, and establish that the same condition
ontinued to the date vihen suit was brought,
ime has not been strictly regarded in England;
ad chancery has frequently proceeded to af-
Md relief, disregarding the length of time,
pon evidence of a continuing oppression and
overty, or concealment. This cause has cer-
liniy in it circumstnncea to raise difficulties.
Iwinar Pye married within two years, and
:ed within Ave after the conveyance was mode,
id tbe complainants were at her death (and so
Wtinued until they sued) infants. Yet I ttiink
> account should have been ordered, nor the
inveyance impeached, after the lapse of tweo-
B3*] ty years, *aad after George Jenldns'
ath, and concur that tbe biil be dismissed.
This eaus« came on to be beard on the tran-
ript of the record from the Circuit Court of
e United States for the District of Columbia.
Iden in and for the County of Alexandria,
d was argued by counsel; on consideration
ureof, it is decreed and ordered by this court
at the decree of the said Qrcuit Court in this
QM be, and the same is hereby reverai'd; and
st this cause be, and the same is hereby re-
knded to the said Circuit Court, with direc-
■w to dismiss the complainants' bilL
, to drrcal tb« I
~ ■3. Coder Ihe d(
Have It rc-
luriueii. "nu toe amouDi ■avancca lo perfect tks
title, deducted from the uupstd piircbsiie monri.
Where the purcbaget, InBtpad ot claLmiug fiom bis
vendors [be cosi o( entertoe nod mirveyluit tbs
laods, the detect In the title to wbicb Obo Iwcoms
kaowD to him thraugb biB purcbasc. claims la liold
the land si b)s awn under tbe titis BL-qulrcd )>r hi*
eotrv and survey, and askii n court at equllr to re-
aclnd tbe contract of purchaae, e court of equttv
ivlU decline giving bim lu aid to obtnln tbe_ n-
E?S'"r°1be fi
bis vendora.
It Is an estnbllabcd rule In equltf that when lbs
' '■- I title.
t tbe rtgbls ol
of [.trlon
*•] 'JAMES GALLOWAY, Jun.. Appellant,
INRY B. PINLEY, and David Barr, Appel-
:ent for lands in name of deceased person
onveys no title — vendee, buying better title
han vendor, considered trustee.
!. B., a man resident Id Oblo, aa sn oDcer In the
(rtnla tini ■ - ■
>hlo. WarranU tc
were surveyed, located, aod niteated. Id 183j
beira of C. B. sold part ot Ibeae lands to G..
I went Into posseimlon of tbrm. He soon sftpr
dn dtBcovtred that ■■■ •— ■---'
ed after Ihe decess
itly voM Tbe lan_ ___
V ycnrs as thi> propertj ot C, R. and bis helra.
the tlUe In them deemed valtd. O., OD mnklne
iBCOVCrr of tbe defects In tbe patent, entered
located the land for blmself. Held, that D.
d not be permitted to avail bimself of tbla da-
la tb« tJUSk while '"■^■"f U Ite rslatlon of a
enjoin the payment ot the parchsse moucy, uMl!
Ihe abllll.v to cou.p]y with tbe Scrvi-Diinl la shown :
urocurc the title. If It appears protiable that It may
In reforming a contract tor tbo aaic of lands.
ormlng a contract tor tbo aaic ot
. . reBIK Tbe liuri:buEcr na a truvtic
rend or. becHuse he holds under the vcndo
tcts done to beneCt tbe title br Ihe vendoi
of tbe laDd.^ luurc to the Ik-i
rived. The veui
e relatlOQ oE Inudlonj a
aee cnnnot diKnvow the vendor!
i patent for lends Ixstied after thi
B cra'ntoe befnr
"■---tsof C-oni
tlve lo tilt .
n remed.r toy defects li
eflt vf
c patenting tbe
■-- -"- mlebt
"■1. Including bv nam
LB between void and
rproprlet* and Jnal
ire the title
II graolB, not dlillneulsb
APPEAL from the Circuit Court of the United
States for the Western District of Pennsyl-
vania in the Third Circuit.
*The appellant filed his bill on the ['ISB
leth of October, 1S35, stating that on the lltb
of March, 1B35, he entered into an article of
agreement with David Borr, acting as attorney
for his wife, Elizabeth Julia Ann, who thereby
became a party to the same. The agreement
stated that Charles Bradford, late of Pennsyl-
vania, obtained for his services as an officer In
the Virfrinia continental line, a land warrant.
No. 44(i7, for 2,G66 acrea of land, which was
entered, surveyed, and patented in three aur-
voys in the Virginia military district, in Green
and Brown counties, in the State of Ohio.
That Charles Bradford died intestate, leaving
four children, two of whom died without issue,
and intestate, leaving Henry R. Finley, and
Elizabeth Julia Ann, bis only surviving heirs.
Elizabeth Julia Ann married John Finley, and
died, leaving two children, Henry, and Elizabeth
Julia Ann, who are the only heirs of theii
mother, and are entitled to one undivided half
of the said military land. That Heniy R. Fin-
ley, and Elizabeth Julia Ann, the wife of David
Barr. sold to the complainant an iindivided
moiety of the two surveys in Green County, in
coneideration of an agreement lo pay ei^t
thousand doiiarsi of which one thousand dol-
lars was paid, and notes given to Henry S.
Finley, and to the wife of David Barr, for
the residue, payable in equal installments, is .
one, two, and tore* years; vis., on the first of
10I»
So^nn Oormr ov thp. UKim Statu.
Jtmnmrj, 1837. 1838, 1830. The defendftnU,
■nd the wife of Barr, covenuited that they
were the peraons they represented theiDscIves
to be, and thn.t they were seized and potteseed
at m, good legal title to the liinda they sold to
the eomplomniit ; aad bound tbemselvcs, their
heirs, etc., t« make him, his heirs, etc., • good
title in fcc-aiiuple, aa booq aa he uhould pay the
purchase money. That defendants asserted
that tbey had in pousesaion the evidences of
the titlo of dafeiidant, Finley, and the wife of
DaiT, to the land; and thnt a letter of attorney
had been executed and acknon-ledged by Barr's
wife to himself, authoriang him to sell and
convey her title in the land; that tbey had then
Just discovered that they had not I>rought these
papers with them, and to ioduee appellant to
rIoKp the contract, promised to send him the
papers as soon as thej should return home;
eonSdiiig in the esistenct! of the papers, and
the promise to forward them to him, he con-
eluded the agreement. The complainant says
he paid down the one thousand dollars, and
one hundred and four dollars, the latter cred-
ited on the last note. That since the date of
the contract, Barr's wife has died intestate, and
without isHue, being a minor at her death. That
SOB*] defendants have not produced 'their
title papers, nor letter of attorney. That de-
fendants cannot perform their contract, nor
make a good title to the land, because Chorlea
Bradford died in 1760, and the lands were en-
tered in his name on the lOtb of April, 17B3;
■nd the tract of one thousand aeres was sur-
veyed the 14th of February, 1704, and the sur-
vey of the tract of twelve hundred acres was
made the 24th of March, 1704, the entries and
surveys being made about four years after hia
death.
The complainant, averring his readiness to
perform, prays that the article of agreement
may be deemed annulled and canceled; that
the money be refunded, with interest, and the
notes enjoined and the collection restrained,
and for general relief.
The defendants, Finley and Barr, on the
10th of Januory, 1836, answered jointiv, ad-
mitting the contract as stated in the bill, and
that H. R. Finlpy, and Elizabeth Julia Ann
Barr, wife of David Barr, were the children
and sole heirs of Elizabeth Julia Ann Finley,
daughter of Charles Bradford, and entitled, as
such, to a moiety of the lands in question ; and
that they told the appellant they had, in Fenn-
■ylTanla, evidence that defendant, Fin!ey, and
the wife of defendant, Barr, were the heirs of
Elizabeth Julia Ann Finley; all which they
assert to be true, and can prove. The defend-
ant* deny that they represented they had in
possession any title papers, or any evidence ex-
cept that which would prove the heirship of
defendants, Finley and the wife of Barr. On
the contrary, they told the complainant they
had no title papers, and that they had only re-
cently been informed of the existence of the
land; and that the defendant, Finley, and the
wife of Barr, bod any title thereto. The
complainant told defendants be hod long
known that the heirs of Elizabeth Julia Ann
Finley were entitled to one undivided half of
aaid lands; that be had a r«eord of their names;
had mode Inquiries for them; that he hod been
Mixioua t« buy the interact of ^faadant, tin-
B the lands; a« be (the eompUlnant) bod
Bold the said lands, and bound himself to give
good titles, and he feared some other prrsoe
would purchase the interest of the defendant,
Finley, and hia sister, and give hitn tntuka.
The complainant stated at the time that b*
knew all about the title, and that if defendaat,
Finley, and his sister, Elizabeth Julia Au
Barr, were the children of Mrs. finley, he waa
satisQed as to their right to the lands. Defend-
ants sdlnit that they agreed to forward to ap-
fcllant evidence that defendant, Finley, and
la sister, were children of Hrs. ^nley, ood
meant to do so; but the death of 'Mrs. [*1«1
Barr caused it to be neglected. The defend-
ant, Finley, denies representing to appellant
that Mrs. Barr had executed a letter of attor-
ney to her husband, and that defendanta had
only then discovered that it had been left b^
hind; he admits that he might have told appel-
lant that Mra. Barr was willing that her hus-
band should sell her Interest. The defendant,
Barr, admits he represented that his wife was
willing he should sell her interest; and that a
letter of attorney bad been prepared to that
effect and left behind; but he denies recollec-
tion of saying it had been executed and ae-
loiowledged, and that he supposed he had the
same with him, and had then only discovered
he had left it behind. He admits he promised
to forward the power, bat the death of his wifa
prevented this being done.
The defendanta deny Intention or attempt to
induce appellant to enter into contract, and
pay his money thereon, by fraudulent repre-
sentations, "ntj admit the pnyment of one
thousand dollars, and one hundred and fnitr
dollars, as stated in the bill ; and that Kirs.
Barr died a minor, without issue and inteatate;
but aver that her death did not affect their
right to comply with the contract, as the inter-
est of Mrs. Bsrr vested at her death in defend-
ant, Finley, who has been, and is willing to
fulfil it. They deny all fraud and combina-
tion, and aver and will prove that they made
the contract in perfect good faith, believing
that defendant, Finley, and Mrs. Barr bad a
legal right to a moiety of the land; the knoxi-
edge of their right chiefly came from appellant.
But they deny that at the time of making the
contract they had any knowledge of the dato
of the entry or survey, or of the Hate of C
Bradford's death: they allege the lirst intima-
tion they had that the land waa entered and
surveyed after his death was derived from the
bill. They admit, from information, etc., aince
the Mil was flled, that they believe the aaU
lands were entered and surveyed at the time*
mentioned In the bill and since the death of
Bradford, who died about the time mentioned
in the hill. The defendant, Finley, avera that
as soon as he was apprised of the fact* men-
tioned In the bill, as to the date of entry and
survey, he made inquiries as to the facts, and
bein^; satisfied that they were true as alleged la
the bill, he proceeded without delay to the anr-
veyor's office in Chillicothe to get informatioM
to take aleps to procure an entry of aaid \uidM,
that he might fulfil said contract; whieh he is
ready and anxious to comply with- But h*
was surprised when he ascertained that tb*
appellant, a few day* before, on the 8Mh
September, 1S3A, fraudulently, and, *■ defend-
r«wn IS.
Galloway r. PtNLcr ahd Baml
Ml
mply
tvfth thpir contract, irtd to defraud the defend-
knt, Finlev, out of hia landi, had entered the
Mme lani^ under Burveys No. 2277 and No.
2278, nifntioncd in the agreement ; aa certified
eopica of the entries made by appellant, and
made part of the answer, will Drove.
The defendanta aver that tlie complainant,
having made these entriea to further hfa de-
aigna, immediately filed tbia bill without Inti-
mating oliji^tiona to their title; althouKh de-
fendant, h'inley, had met and convened with
him at Pittsburgh after the entriea nere made
and before the bill vas Sled. The defendanta
Kllege, and will prove that tha lands were duly
mtered, surveyed, and patented in the name of
Charles Bradford, by virtue of which the de-
fendant, Finiey, and his said sister, at the date
of contract, were, as the heirs of Mrs. Finlcy
deceased, daughter of Char lea Bradford de-
ceaaed, entitled equitably and luatly to the un-
divided half of said lands, and had good right
to aell and convey. By the death of Mrs. Barr,
m. minor, without issue, her right vested In the
defendant, Finlry, as sole surviving heir of
Mrs. Fittley; end being so entitled, he avers hia
power, readinPBS, and willii'Bnesa to make a
perfect title to the appellant for an undtrided
moiety of the lands, on the fuIAlimeiit of the
contract I>y bim. The defendants aver that
^all be taken to iiiure to the benefit of themj
for whom he holds the landa In truat for fnlflll-
nent of tiie agreement; and they pray that th*
bit] mav bo dismissed, etc.
On February 13th, 1837, the appellant filed
hia ameniled bill, stating that besides the money
be had pnid defendants on account of the con-
tract, he released to them Ms interest to an un.
divided half of survey No. 4450 for 466^ acres,
for the consideration of five hundred dollara.
That when he made the contract with the de-
fendants he believed that they had a pnfect
title to the lands they sold him; waa Ignorant
that the entries, etc., had been made in the
name of a man not in being; and that it waa
not for a considerable time afterwards became
to a knowledge that the land was vacant, and
that the defendants had no power to make him
m title, and that the lands were subject to entry
by a holder of a Virginia military warrant. He
had previously purchased an undivided half of
tlie same lands, and paid a large consideration.
Deeming it right to protect his intereat in the
premises, on the Z8th of September, 1836, ha
caused entries No. 13,flSS for 1208 acres, and
No. 13,607 for 1,000 acres, to he made; and on
the same day faused surveys to be made and
»«#•] returned, which were "recorded 28th
September, 1836, He refen to attested copies
filed with the answer. The appellant chaigea
the fact thnt the land* being wholly vacant and
nnapproprieted. he has invested himself with
the bp«t title to the aame.
Be prays that the defendants may answer,
KTid also as In his original bill; or If it shall be
found that defendants, or either of them, had
« good title to the land, and still have a right
to the same, and have authority to make a val-
id conveyance, then the appellant la raady,
1 periMt oompMioK of
tha Mntraet on Ua pmrt And ha pi«7a for
general relief.
A separate auawar w>a made to theanuaded
bill by David Barr, and filed Februarr ZSth,
1837.
Ha admlta ths deed of release of the appel-
lant's interest in aurvey No. 44S<t, and that the
consideration named In the deed waa five hun-
dred dollars; hut denies that that sun waa the
true consideration, averring that one hundred
and four dollars and thirteen oents, credited on
one of the notes as mentioned in the original
bill, waa the tme consideration. The defend-
ant avera that at the time of making ths con-
tract l>oth defendants denied Galloway's claim
to this survey, and set up the entire right to the
same to be in Fioley and his BiaCer, then living,
and that it waa not considered nor formed any
part of the contract; but after the contract waa
executed, Galloway urged a claim, at least foi
the taxes faa had paid on the aurvey- This de-
fendant agreed, in consideration of the release,
to refund the taxea paid by crediting the amount
on the note. The sum of five hundred dollara
was inserted at the instance of Oalloway to in-
duce his wife, as he said, to sign the deed. The
defendant, Finiey, had nothing to do with thia
transaction. As to the appellant's belief that
Finiey and hia sister had a good title, the de-
fendant aaya that the complainant represented
to them that he knew all about their title. Ths
defendant aupposes that the appellant became
acquainted with the facts that the entriea and
surveys had been made in the name of a dead
man, after the date of the will of Bradford had
been communicated to him. He cannot admit
that the appellant has by the entries, etc., in
bis own name, invested himself with the beat
and only title to the lands. The defendant da-
niea that the lands were vacant and unappro-
priated at the time appellant entered them; but
they had before been appropriated under war-
rants of Bradford, under whose entry, etc.,
same. He prays that the bill may be dismissed-
■The cause was tried on the 28th ['310
of Uay, 1837, and ths court decreed that tha
bill of tlie complainant should be dismissed-
The complainant prosecuted an appeal to
tis court.
The case was submitted to the court on print-
ed arguments by Mr. Corwln and Ur. HaiOB
for the appellant, and by Mr. Fettermaa for
the defendanta.
For the appellant the following polnta were
1. Galloway was not obliged by any princi-
ple of law or equity to put the defendants In a
situation to comply witb their contract. There-
fore he waa not bound to aaaiat them In proonr-
ing a title where none existed before,
2. Nor could mere silence and non-)nterfer'
enee be imputed to him as a delinquency, for
which hia rights under the contract might he
injuriously aSected.
3. But Galloway did interfere. For when
he discovered that the defendants had no
title whatever to the land tbey had sold bin,
and that it waa vacant, and might be appro-
Sriated at any moment by the firsrt wanunt
older who should come to tlie knowledge of
' fact, he entoMd it in his own nam*.
Scmiu Oomr or thb UmnD Sun
4. Wkb thh Bet on tha |Mit of Gkllowftj an
then existing between himBelf and defend)
Wu it B breach of good fsitb towards them
that ought, on admitted prinriples, to deprire
him of the aid of a court of equitjT
5. It appear! from the pleadinga that Gallo-
way had puTchaeed, prior to the dat« of U*
contract with the defendanti, an nndirided
moiety of the land in controversy, which be
had afterwards sold and bound himself to con-
vey by a good title; that he was urgent in hjs
solicitations to purchase the interest of the de-
fendants, from an eppreheneion as he said of
having trouble, should they sell to any other
person. Hence, it is maintained that oomplain-
ant had, as he asserts in his amended Nil, k
"right to protect his own interest in the prem-
ises," by malting the entries he did the 20th of
September, 1B35.
6. Galloway had no authority to re-locate the
warrant of Bradford, either in his own name,
or in that of the heirs of Bradford.
But if he had such authority he was not
bound to exercise it, and could not have done
so without Drst returning to the general land-
STl*] office *lbe patent for cancellation, and
then of incurring the risk of acquiring a doubt-
ful title.
7. He could not have delayed to make the
entries at the time he did, without the haiard
of losing the whole land, which he had already
twice purchased.
8. It was certainty lawful for Galloway to
•Bcure, in the mode he has attempted to do, the
undivided half of these lands which he had long
before purchased and conveyed away. To ac-
complish this object he was compelled to enter
the whole, inasmuch as he could not enter an
undivided part of the land.
0. Ought the acts of Galloway in appropriat-
ing these tracts of land to himself to inure to
the benefit of the defendants! The parties
were not tenants in common, because the entire
intercHt, if onythitig, was vested In Galloway.
But neither party bad any interest, legal or
equitable, and there can bt no teuuncj tn com-
mon of a mere nonentity.
10. Unless Galloway was somehow disabled
from doing what was la-.vful for all the world
besides, he has undoubtedly acquired an equita-
ble title to at least one undivided half of the
lands. And as to the other moiety, he has an
equity that ought to bo protected; as the de-
fendants, having no title themselves, can lose
nothing by the acts of Galloway, unless it
should be a chance or mere possibility.
11. In determining upon queationa of title,
mere possibilities are not regarded; tbe court
must govern itself by moral certainty. When
a considerable or rational doubt exists, notwith-
standing the better opinion in the Judgment of
the court Is that a good title can be made, a
court of equity will not compel a purchaser to
take the title. B Hoven. on Frauda, 94, 2S,
and eases there aital.
12. Wbers tbe vendor has tn reality no inter-
eat In the subject of the sale, though he believed
be hnd, the eontraut will be set asido. 2 Hoven.
on Frauds, 13.
13. A decree may be obtained by a vendee to
bavR a MirdMM eentraet delivered ap, on tba
1081
gtouti
meat on the other si
is, that entries made in the name of dead men
are null and void. But It is insisted, at the aama
time, that such untriea are protected by tbe
proviso to the Act of the 2d of Han^ ISOT.aa
against all entries made subaaquent to the paaa-
age *of tbat act. Tbe contrary can be I*S1<
maintained both by reaaon and antbority.
Hr. CorwlB and Mr. Maaotv for the appe-
lant.
Tbe eompl^nant ba« sought tbe aid of tbe
court in this ease to rescind a contract for the
sale of real estate. The facta necessary to be
considered are few, and in general admitted by
the pleadings of the parties. The complainant
alleges that he purcnaaed of defendants tbe
undivided moiety of 2,200 acrea of land lyiBg
in the Virginia military resorvatitm in Obio,
for which he was to pay about eight thanaand
dollars, in paymfnts, the last of which wonld
become due in JB39. That be paid one thousand
dollars at tho time of completing the purchase,
on the 11th of March, 1835. That he also ad-
vanced at that time tbe further aum of one
hundred and four dollars, to enable thedefend-
anta to pay taxes due from them on other lands
in Ohio. These facta are admitted by tba
onstrers of the defendants.
It is alleged by complainant, and admitted in
the answers, and by the printed ai^ument of
defendants' counsel, that complainant had, pn-
vionsly to the data of hia contract with defend-
ants, purchased of one Fin ley Bradford, a
co-heir with the defendants, the other moiety of
the same land now in controversy. It is
alleged by complainant and not denied by tha
defendants, that a controlling motive for enter-
ing into the contract of purchase with the de-
fendants, aroae out of the fact of bis having
sold parts of the land purchased of Flnley
Bradford, and bound himself to make title*
under such sales to tbe purchssen. The com-
plainant Insists that at the time be purchased
(March, 1636), neither defendants of whom be
purchased the last, nor Finley Bradford, their
co-heir, of whom he purchased tbe first half of
the 2,200 acres of land, had any title thereto,
either in law or equity. That tbe land hea bcaa
since appropriated by a valid entry and surrey
made in September, IS36, in another and bettor
right; and thus lie fairly comes before the eonrt
to ask a decree for the rescission of the contract,
on the ground of a failure, or total want Pi
ctmsideration moving from the defendants t»
Upmi this atata of facts, two general prop*-
tions are to be established:
1. That defendanU had no title either in l»«
or equity to the land sold by them to the eo^-
plainant.
8. That the land bad been fairly appropriatad
by another, under 'valid entry and sur- [*11S
veys, so that defendaota never can make a title
for it
The facta necessary to be known, in ordar M
test the validity of the title under which Um
defendant* claim, are all undisputed in the
pleadinga. The history of Uttea, in wbat la
pi«perly called the Virginia military district In
tbe SUto <a OUo, Is too wall nnderstaed by tba
1836
QuAOwrt T. FiNLKT an BAit.
STS
MMirt to juBtl^ Ita redUl here. Tbe territory
between the Little Miami and Scioto riveri, in
Ohio, waa let apart b; the State of Vireinia to
BBtiefj military boiintica granted by tier for
aervicea rendered in the revolutionary war. By
the terms of ceeaion of the territory northwest
of the River Ohio, when the warrant! for these
bountieB should be satisfied, the remainder of
the territory (If any) between the two rivers
juet mentioned, belonged to the United States,
Mid became a part of the national domain.
CiiarleB Bradford, under whom deFendanta
claim, it la admitted on all hands, held a war-
imnt which authorized him to appropriate two
thousand two hundred acres oi land in this
territory. And the question arises whether any
land whatever has been appropriated by virtue
of this warrant.
It Is admitted that Charles Bradford, the
owner of this warrant, died in Washington
Conaty, in the State of PennBylvanis.in theyear
1786. The entries of the land, b;^ virtue of the
warrant in quesLion, were made in the name of
Chorlea Bradford, in 17S3, and the surveys
were executed in his name in 1TD4. It is also
admitted that a patent has issued in his name;
bnt when, is not shown by the record. Thus
it is shown that the entries were made and the
Hurvej-a executed four years after the death of
the proprietor of the warrant, and in his name.
Did these proceedings attach to the specific
property now in controversy any right in favor
of defendants, which ii valid either in law or
equityT We do not feel ourselves at liberty to
consider the proposition thus stated as one open
for diacussion before this court. It is only
necessary to say here that we consider tt in all
f«spects OS perfectly identical with the principle
fully discussed and settled by this court in the
caae of Gait et al. v. Galloway, 4 Peters, 332,
knd M'Donald *. Smalley et al. 8 Peters, 261.
It will be borne in mind by the court that
Although the property in qnestion is sittuted
^thin the limits and territorial jurisdiction of
Ohio, and would, therefore, be subject, In the
hands of individuals, to the leginlatioa of that
State in all things affecting its transfer by deed
or devise, yet as a part of the public domain,
the mode of acquiring right toit and separating
it from the mass of public lands is to l>e pre-
374*] scribed *by tno laws of Virginia, and
such regulations as the United States govern-
ment have, from time to time, since the cession
of Virginia, thought proper to make coneem-
infr it.
If. however, the court should suppose that
the question of Uw under consideration could
l>i any degree by affected by the tax loci rei sitce.
it will be found that the highest judicial tri-
hunal of Ohio has settled this question in exact
conformity to the law as laid down by this
court. In the caae of Wallaee'a Leasee v. Saun-
iters, T Ohio R. 1T9, the court, without a
itisaenting opinion front eitherof ita four judges,
declare that an entry of Virginia military lands
in Ohio, made in the name of an individual nol
living at the time, is tint merely defective, but
that it is, as this eonrt have aaid. a mere nul
I.ty ; that it leaves the land open to be taken up
by anyone holding a warrant, aa though no
Attempt at appropriation had ever been made.
It la proper here to consider whether Brad-
ford'a entry, being ndd, aa liu beM shown, ii
made valid by the Act of Ongresa of the M of
March, ISOT, which haa been continued in force
by various re -enactments np to the 31st of
March, 1832, which last is still In force.
The proviso in all these acts, which ia inp-
posed Dy defend anta' counsel to protect the
entry of Bradford, under which they claim, la
In these words: "Provided that no locations as
aforesaid, within the above mentioned tracta,
shall, after the pasBa^ of this act, be made on
tracta of land for which patents have been pre-
viously Issued, or which had been previously
surveyed; and every patent whicb may, never-
theless, be obtained for land located contrary to
the provisions of this section, shall be consid-
ered as null and void." See 7th vol. U. S. Iawi,
61S; U. S. Laws, Sth vol. 631.
It ia .conceded by the defendants' oonnsel
that the proviso in question was intended to
protect from interference "defective entries
and patents," and that this has been the uni-
form construction placed upon it by the courts
of the country. We agree with thia eipositi<H)
of the law, and admit that if the entry ani sur-
vey of Bradford were merely defective and not
void, that they were protected by the act of
Congress, and the subsequent entry of Qalljway
is void. The case of Doddridge v. Thompson,
g Wheat. 481, ia an authority to show that the
act in question was passed, as the court there
say, "to curs defects" in titles already acquired.
This court has determined that the proviso
in the Act of 1807 does not protect a survey
against locations, where the entry on which
'such survey was made had been with- [*S1B
drawn. Taylor's Lessee t. Myera, 7 Wheat. 23.
In the ease of Lindsey v. Ulller, S Peters, 8M,
the court declare that void entries and vcdd
surveys are not protected by the proviso in
question. In commenting on the case of
Jackson v. Clark et al., reported in 1st Peters,
628, the court say that they "gave effect to
the act of Congress in that ease" because the
survey was not void, but merely defective. S
Peters, 677.
If entries and surveys made In the name of
dead men are void — are mere nullities, and
leave the land upon which they are made tpen
to subsequent location, as thia court nas
decided in the case cited from 4 Peters, 932;
and S Peters, 261. and aa has been also decided
in Ohio Rep. 7tb vol. page 173, then it fol-
lows that tnc act of Congress relied upon by
defendants cannot protect the land in question
from the entry of Galloway mode in Septem-
ber, 1835. We refer the court here to the esse
in Ohio Rep. 7th vol. page 173, as an aapreas
authority upon this very point. The effect of
the proviso, in the Act of IB07, upon an enti^
in the name of one not in life at the time, is
there connidered, discnasod and decided by the
court. We consider that as settling the law ot
this case, so far as the p '" '~~
discussion affects it.
originally a nullity, left the land in question a
part of the Virginia reaorvation, open to any
holder of a warrant to locat«, we come to con-
!>ider whether it has been appropristed by
nnother In such manner aa to withdraw it for-
r:ver from the power of the defendanta.
Th« entilM »nd surveys of OaUoway ■ '
)•»«
SuFUMK Comr or lax Ustnp SrAni.
fortb tn Ue neord, Bnd admitted to be ma.de
on proper warrants and hj competent au-
tliont^. Tbui far it seem* qu)t« imposiible to
realit tlie concluBion that the land ii
OallowAy'i entry ia good lor the purpose of ap-
propriation at all, it remaini to inquire whether
■Dcn etiti; ihall inure to hij own, or another's
benefit.
It la faateted by defendant!' counael that the
relation of vendor and vendee, which aubaiated
between complainant and defendanta, created a
truat which obliged Galloway, as trustee for
defendanta, to use the original warrant of de-
fendanta' ancestor, which, by his death de-
Mended to hie heirs for the purpose of appro-
Eriatins the two surveys In queation. It will
e admitted, we are sure, that on thla branch of
the case, It la incumlient on the defendants to
176'} *lst. That the contraat between them
and eompUlnant, by necessary impljcAtion, de-
volved this duty on the latter.
2d. That in September, 183S, when It was
discovered b; both parties that the land in
uestion waa vacant, it was cleariy in the power
of Galloway to make at that time a valid legal
entry, by virtue of the original warrant of
Charles Bradford, deceaaed.
If either of these positions are doubtful, or
clearly ascertained against the defendanta, then
the court are left no alternative but to give
full effect to Galloway's entry made in Septem-
ber, 1B3S, for his benefit.
On the first proposition, it becomea necessary
to inquire to what eit«nt the vendee of real
estate may be said to stand in the relation of
trustee to his vendor. The rule we conceive to
be laid down verj accurately in Sugden'sVend-
ors, page 182. It is there stated that "equity
Gonsidera the vendor as a truatee for the pur-
eliaaer of the estate sold, and the purchaser as
» trustee of the purchase money for the vendor."
The same principle is in substance determined
in Oreer v. Smith, 1 Atkyns, 672, and in Pol-
Ufaxen v. Moore, 3 Atkyns, ZT2. Thus it ap-
peara that the mutual trusts imposed on vendor
MDd vendee of real estate by courts of equity,
arc nothing more than the duty of performing
In good faith the stipulations of tnelr agree-
ment. The vendor is charged with the duty of
conveying, as he baa agreed to do. the estate;
asd uie vendee Is, in equity, held bound to pay
the purchase mnney, as he has agreed to do.
Henee, it follows that complainant was not
botmd by any principle of equity to put the
defendants in a situation to comply with their
eontraot; he was not surely bound to assist
them with money or •errices, to enable them
to make • title to the land they had sold; be
waa not bound to Inform them that the land
wa« vacant, beeaiue the entry on their warrant
made in the name of and after the death of
Charles Bradford was void. It cannot be pre-
tended that silence or inaction on hia part
would deprive him of the aid of this court, on
the pretense that because he bad said, or done
nothing, he had therefore acted In. bad faith
towar£ the defendants. On the contrary, the
law Is that the vendors (the defendants in this
case) were bound to the eomplaieant, for the
knowledge in themselves, of alt these things.
They mxpnmlj eoveniuit "th»t tbsj Me (clM
ItM
and possrsscd of a good a
thing sold, and in addition to tb« legal obliga-
tion to that effect they give an expreea carenant
to the complainant on that subject. That tta
law obliged them to know thdr right, or forfdt
their contract, we refer the court to the ease of
Allen v. Hammond, 11 Peters, 03; and mUk-
cock V. Giddinga, Daniel's Exchequer RapL 1,
there referred to, and approved by this court.
In the case just cited, on page 72, Mr. Juatfaa
H'Lean, in delivering the opinion of the court,
says: "The law on this subject ia clearly stated
in the case of Hitchcock v. Giddinga, Danicl'a
Rep. 1, where it is said 'that a vendor is
bound to know that he actually has that which
he professes to sell, and even though the sub-
ject matter of the contract be known to botk
parties to be liable to a contingency which
may destroy It Immediately, yet, it the contia-
gency bas already happened, the contract in
void.' " The same principle fa in aubatauc*
to be found in 2 Hovendrn on Frauds, 13.
Let us apply the principle of the casan jnrt
referred to, to the present. The defendants
were bound to know that thev had "k good
legal title" to the land sold; they covenanted
vrfth complainant in March, lS3fi, to that effect,
and in those words; they received from the
complainant one thousand one hundred and
four dollar* on this contract. Seven nontbs
after this (In September, 1830) the eompUlnant
learns that defendants had no title whsitevtr
to the land thus sold, and the defendanta ndait
that they had none at that time; waa n«t tUi
contract void in law, and would it not hnvn
been so adjudged had the case been then pn-
sentedl If so, had not Oaltoway a right tn
treat it aa the law treats it, aa void, and act
accordingly. In the case of AJIen v. Hammond,
the court Bay: "If the subject matter of the
contract be known to both partiea as liable to
a contingency which may destroy it [
what destroyed the right to the land s
it had happened, and therefore the contract
waa void the moment It was exeented.
Gdloway beii^ thus, In September, 18SS,
devested in law of all obligation to defendant*
under this contract, and the land In queatioa
being vacant, he baa in good faith made it Ua
own, by entering it on his own warrant ; or in
other words, he hss purchased it of the u«nti>,
and the only owner, with his own fuuda. Be
has left the warrant in the handa of Bradfocd'a
hdra Just where ha found It, unsatisfied and
nnloeated. He has, t^ his entry, deprived tb^
of nothiu which Hhcy had befon hia [*STI
entry. Asir warrant Is aa good in the Inw,
and worth aa much now aa it avsr waa. II
will buy two thousand twi> hundred aercn •(
land anywhere in the Virginia reservation. H
that territory Is exhausted, the faith of a matm-
eign State ia pledged to make good tba da-
ftciency; and a that duty, aa soma any, be
transferred to the United States, no one can
doubt the ablUty or the dbposition entJtrir part
IS»
Qallovat v. Ji^ut uid Bam.
tn give full fndamnlty la money or ls.ndi to «I1
bona Ada holdan of ludi wtrrantB. Let ua lup-
poM that instead of military land the defend-
Koti bad lotd to complainant Congreu [and, saj
Mction No. 10, in a given township and range.
Suppose the compUuiuuit poHEBaed, no matter
how, of eigbt hundred dollars in cash, belong
Ing to defendants. The complainant, looking
RfUr bis title to the 10th section, finds that il
has never been entered or bought bj anyone in
ftaj way, but is open to entry at one dollar and
twenty-five cents per acre. Would any court
imagine that it then became the duty of the
complainant to take the money of the defend-
ant in his hands and buy of the government
the loth section in defendant's name, or could
it be conceived within his province ae vendee
of a tract of land at any time, to seize the
money or property of the vendor, to make good
the title which he had contracted fori Such
is the case, aa contended for by the defendants
here. The defendants, indeed, knew that such
a warrant as would appropriate the land in
question was said to exist; but the court will
bear in mind that neither the warrant nor the
jpatent, if in existence, were then, or are now,
•ither in the hands of complainant or any
one for his use. And this brings us to consider,
•econd, whether it is shown by defendants that
Galloway, in September, 1835, had it In his
power to locate the original warrant of Bradford
on the identical land in question at that time,
■o BS to make It certain that by such act he
would be able to obtain a le^l title without
litigation to the land In question.
In the first place, the court will remember
that the warrant was not in our possession;
that we had bought and paid for one undivided
half of the 2J20O acres of Fielding Bradford,
who seems to have had just claim aa heir, to
one half of the warrant. In the second place,
« patent had issued for the identical land in
controversy, which seems not to be in the pos-
session of either party. We maintain that an
aHignmcnt of the warrant by the heir* of
Bradford was indlBpensable to enable us to
enter It In complainant's name. But if it be
a»td that our contract for the land supposed to
be entered by it is equivalent In law to an aa-
aignment, to this we answer that such entry
STO*] 'would not be good against one holding
the warrant with an assignment, without notice
of our purchase. Such an assignme^ may
Iwve been made by Fielding Bradford, or by
defendanls, at any time since 1789; for from
that day to this tne warrant has been capable
of such transfer, never having been lawfully
located, at least so far as we are Informed, by
the facta in this cause. Surely, then, the court
will not say that complainant was bound, for
the benefit of defendants, to run this haxard;
*iid thus, in the event of hia failure to make
the warrant a good foundation for his entry,
la«e the whole land which he had fairly
bought, leaving himself to be charged with
tbat very mala fides, towards those who had
bought of him under bis purchase from Fielding
Bfadford, to whom It is admitted he hiid
bound himself to make good legal titles. Nor
could the defendant enter "an undivided moie-
ty" of the 2,200 acres; he must, in order to
make the contract of defendants good, have
«it«red the whole; and henca it became tiec-
• It. «d.
eaaary to have command of the whole n ...
Defendants only claim one half; and what dis-
position may have been made by the other heir
of Bradford of hia portion is not shown to the
court, nor ia It presumed to be Icnown by com-
Rlainant. It is unknown to the court, and so
Lr as we know, to the parties, whether Fielding
Bradford is living or dead. His half of the
warrant. If he is dead, descended to his heirs
at law. Who are theyf Where are theyt
Are they minors or adults? All these questions
at once arise when Qalloway is asked, in Sep-
tember, I83G, to use this warrant for the pur-
Kae of obtaining a clear legal title to this
id. If any doubt existed as to his right ao
to do, or as to the probability of such act being
good, to hold the land and obtain a patent
without litigation, then It is clear the court will
not hold that he was bound to incur such ride.
Having bought one undivided half of the 2,200
acres, and sold (as he avers, and as is admitted)
on the faith of that purchase, every obiieation
of good faith and correct morals impelled Um
to make sure that which was necessary to
enable him to comply with hi* own engage-
But a patent had issued for the land. We
insist that no entry could be valid by virtue of
the warrant, the use of which caused that pat-
ent to issue, till the patent itself was produced
and canceled. We refer the court to the usage
of the general land-office, as laid down in the
letter from the solicitor of that bureau, which
we have appended to our argument, showing
the difficulties which would have attended an
attempt at re-locatlon of the warrant belonging
to 'Bradford's heira, by Galloway. If [*a8*
the title was In doubt which was thus to be
the land through that channel. See 2d Boven-
den on Frauds, 24-2 S, and cases there cited.
It becomes a question of piimair importance,
under this state of things, whether Galloway
was bound (after the discovery thst defendsnta
had no title to the land, and that it was then
vacant) to notify defendants, by writing to
Pennsylvania, and giving them an opportunity
to search for the warrant — to institute an In-
quiry for the patent, which must be delivered
up and canceled — to find FSehlirg Bradford, If
living, or hta heirs, if he should have died;
and, after obtaining all these prerequisites, to
come to Chillicothe, in Ohio, and enter the land
in their own names. Because he did not do this,
he is charged with not only overreaching the de-
fendants, but also himself.
To ascertain bis duty in such an exigency,
we must look at all hia liabilities and all the
circumstances; for, from a correct view of these
,re the moral and equitable obligations of men
,lways derived. It is a matter of history that
the holders of warrants since 1830 have been In
the habit of laying them on all lands subject to
entry, by reason of the previous entry being
void aa in this case. Many valuable farms, long
'cultivated and possessed under entries and
surveys made In the name of one dead at tb*
time nave been taken from the poBsesBora by
subsequent entries. We mean no disparaos-
inent to that officer, when we aasert that the
register himself has been In the habit of ascer-
tidnlug auch caaea, and bu^ug warrants, and
1089
tu
SUTBEHI COUBT Of TUB UltlTID StaIBI.
UM
heating then on Uada thus situated. When,
therefore, Galloway ascertained this to be the
situatioa of the land he had bought; when he
looked to tliow to whom he had Bold on the
faith of such purchaee, to whom ha was bound
tn make titles ; when he saw that tliia land, thv
vacant, was at the mere; of the many speculi
tors who abounded in that*<^uarter in search <
■ueh lands; how could be, in good eonscienc ,
let an hour pssa without placing himself and
his venileea at rest as to the title! Had he sent
a courier to advise the defendants, before he
returned, the land would have been entered,
and thus he would forever lose one half of it
already paid for, and forfeit his contracts witt
all to whom he had sold, whilst the defendanti
could gain nothing by this idle and dilatory
proceeding.
a*l*] •The only course an honest
could take under such circumatances, was that
Eursued by complainant: with his own funds
e proceeded to make sure of the title nefOEisary
to fulfill his own contrarts. He bouglit and
paid for the whole, and for one half of it he has
paid twice. Shall all this sacrifice on his part
now inure to the benefit of those who linve led
him into difficulty, and from which he liax I>erti
obliged to extricate himsflf with his own nuM
through ignorance of their right to thai wli
they professed to own, but which in fact u
not theirs.
But if the complainant had lieen the tns
of the defendants, constituted by deed to hi
for them the very land in question; we contend
that he had, under the circumstances, a right to
purchase and hold it.
The law is settled, we believe, that where, by
a Judicial decision, the property held in trust is
found to tie owned by another, then the trustee
may lawfully purchase the property and hold
it in his own right. This doctrine Is founded
in reason and equity; when the Jlducisrv char-
acter is terminated for want of an object, the
trust is at an end. H oven den on Frauds,
474, 476, 4S2. Here the land as to which the
supposed trust existed, by the judicial deter-
mluation of other cases identical with this, was
known to all who knew the law, to be vacant
land, and to be owned, not by individtials, but
by the government. In September, 1H3.'i, by
the laws of the land, it was not the property of
defendants; and therefore no trust in their fa-
vor can be raised on a contract concerning It.
In this view of the subject, the parties, tf
either liad any equity, stood precisely equal.
Neither had any right to the land, in iuw or
equity. If the complainant has apptopnatcd
it by valid entries first, he is the owner, and
must hold it against all the world. If the pos-
•easion and ownership of warrants pvc an
equitable right to land, then complainant bad
eoua: right with defendants. The latter, in
Geptemher, 1835, owned a warrant, or part of
it, eali'ng for 2,200 acres of land in that district ;
complainant had also a warrant for that, quan-
tity; he entered his, and thus obtained a legal
right to the specific land, better than the defend-
anta' equity; if such it may be called. In this
view of their rights, the well estflblished doc-
trines apply with full force in favor of complain-
ant. Between equitable claimants, he who has
(recedency in time has advantage in right.
ititimnooa t. Ogden et nL 7 Cranch, E.
Having disposed of the quMtton of rfgU, «t
think proper to submit "an obBervatioa (•«■)
to the court as to the effect of a refusal to re-
scind the contract. Complainant prays a »■
scission; and if that cannot be granted a eos-
firtnation of the title. What compensation am
the court matie for the money expended in Ua
second purchase. The land is held by Tirtne et
Galloway's entry; if he is confirmed in thU,
and the contract still enforced, surely he is tobt
paid for bis warrant. At what price is this te
be estimated 1 If tliis expenditure inures to de-
fendants' benefit, he should be allowed tW
amount of that expenditure on his contract*
What is that amount T It would seem to be
quite impossible by a decree to compel Calla-
way to withdraw his entry, and go to the regii-
ter's oflice and mske an entry on Bradford's
warrant in the name of Bradford's hC'irs. T»
enable the court to see the equity of such a it-
cree it was incumbent on the defendants to eho*
the court whether this warrant be in existese^
and where it is; that it has not been aasi^edfi
whole or in part by any of the persons to wbon
it passed by descent; that it is not in whole or
in part in the hands of a bona fide holder In
transfer, as above suggested, so as to make it
impossible to appropriate land with it. Defend-
ants should also show that this last oonld be
done now, upon the instant, so that tbe land
may not be subjected to that result which in-
"itably awaits it; an entry in the mean time
a third person, so soon as Galloway'* entry
declared invalid. They should show that the
patent is at hand to be canceled as the r^ula-
the land-otTice require, before >iiy new
I be allowed to exist in its inceptii*
form, under the old warrant. It waa the total
want of all these requisites to any safe and im*
proceeding of the kind; all of which resulttd
from the ignorance of the defcndanta of that
title which Itiey assured the complainant they
had, and which by law they were bound ts
know they had; it was this accumulation at
doubt surrounding the title, which tnlgbt ban
hcen, by possibility, created with the aid rf
Bradford's warrsnt, which made ft not merely
the privilege but the duty of comp'ainsnt to
..... . ■.. iiiogpther; snd for his own et^urity.t*
his own funds, to repurchase of the
government whnt be had In vain Bought to ob-
tain througli the defendantB' rights. TTie conrt
cannottfait to see bow great a perversion flf
IsngiiBfc it would he to apply the phrase em-
ployed by Lord Nottinghsm in Mnynard'a ease,
to the conduct of complainant in this. It is
that case thnt equity will not aid OM
ivcrrcaches himself." The Idea of a
reasonable being setting himself to work la
practice knowingly a fraud on himself, whirt
seems the *true and only definition of ['SBl
the phrsse, ts not according to any establi«W
notion of human conduct, so clearly possible as
to admit it amongst tho^e plain and simple ele-
mentary truths which compose the groat bodj
of chancery law. Tt might naturally enou^
however, suggest itself to a mind perplexed aal
mystified as his lordship's no doubt waa, by tie
nrtuous expedients of oue of the parties in tbal
ase to gain an undue advantage. But •• tbcra
B no similarity between the facta of that ease
nd this, so there is no propriety in af^lyiac
any rule of that case to the present. Instead m
Petara 1&
(J ivrww r. fifttBT i
^OTMT«*chiiiR himself," the compUinant to
tkli CMC, when he made hie entry, stood exact-
ly in the condition of & bona flde purclinsi'r,
flnding his title not merely in peril, but utterly
Ene. He was compelled to protect biinsi-li.
■ IB the case which a. court of equity will pro-
tect Kguinitt "a creditor, or an heir, or the
(ftthprltsi," Siigdeu's Vpndore, 723. Hie own
warrant and his own entry, were the only
plank he could seize in Ihe shipwreck, to whi^'b
the culpable igoorHuce of the defendants a* to
tfatir own rights had exposed him.
Mr. Fetterman, for the di feTidents.
To form a correct opinion upon the question
whether the coaiplainant in this case diK'^ pre-
sent himself under circumstances which impose
on a court of conscience obligations to give him
Its aid, it will be useful to take a general view
of that system of land titles which has been in-
troduced into the Virginia military district, in
the State of Ohio, within which the land in
controversy lies. That system of law being
made up of uaages, and growing out of circum-
■tancca, both of which are peculiar to itself.
Mid out of the ran^je of Ircutises on common
Iftw and equity, the bar of Pcunsylvimia have
bad little occasion to make thenisclvee ac-
quainted with even the leading features and
outlines of those military titles.
So far as my limited. Icnowledge will ennble
me, I will attempt a concise statement of the
cinia b; a person that he is entitled to bounty,
hnds under the taw of that State for revolu-
ttonary services in the Virginia line on conti-
nental establishment, the governor issues his
warrant, which is a mandate to the principal
•urveyor of the military district, directing him
to iurvcy for the person entitled to the bounty
the quantity of laod specified in the warrant.
The warrant does not direct what particular
tract of land slinll be surveyed; and by usage,
284'] the omnrr of the warrant *or his agent
has a right to direct the principal surveyor to
survey the warrant; that is, the number of
acres colled for by the warrant, in one or more
tracts, on any lands within the district he shall
designate, not previously appropriated to the
■mtisfactlon of some other warrant. The speci-
fication of the particular tract or tracts hcIi-c ted
in satisfaction of the warrant is mndc in a
book kept by the principal surveyor, ealted "The
Book of Entries or Locations." The entry or
location is a mere entry or statement in the
book aforesaid of the quantity of land entered;
the numb<T of the warrant which it satisfies in
whole or in part; the name of the person for
whom the entry is mode, together with a gen-
crsl description of the locality of the land en-
tered. Any description which can be reduced
to certainty by a subsequent survey is suffi-
ciently certain and specific; next follows the
■urvey of the entry, which must conform to
the calls of the entry; o certilcd copy of the
warrant, entry, and survey on them, is for-
warded to Washin;;ton city, to the commission-
er of the general land- office of the United
States, upon which a patent lasiics in conforui-
Sty with the survey.
The owners of these warrants, for thf moat
Hrt, resided In Eostern Virginia, sever.il hun-
dred miles from the diitrlctj uid the lands were
» I*. «d.
chiefly taken up, in satisfaction of them. At av
early day, while the district was a wildemes*.
consequently, the whole business of making
entries or selections of land, was by agents.
These agents were generally dep uty- survey ora,
appointed by the principal surveyor to make
surveys for him as his deputies. They, there-
fore. h<;ld the double relation of agents for the
owner of the warrants, and deputies of the
principal surveyor. Every holder of a warrant
would naturally seek to get the best land* un-
appropriated. To effect that object, men who
had acquired an intimate knowledge of the lo-
calities of the district, such at hunters, Indian
spies, etc., were sought after. This claaa of
men took up the business of surveying, and
became the deputies of the principal surveyor.
The bueiness of selecting land, and making en-
tries and surveys for owners of warrants, fell
almost entirely into the hands of this class of
There were no lawyers among them. This
system of titles and of law, was not therefore
marked out by judges and lawyers, but by
plain, praetieal woodsmen and surveyors, who
were ignorant of law as a science. The proper-
ty of a large and rich country Is based upon
their transactions. Courts, therefore, have in-
quired into their usages, and have sustained their
proceedings, wherever they were •notin [*2SS
conflict with established principles of law,
which the ministers of justice were bound to
obey. These dep uty -surveyors were ignorant
of the principles of ths common law, "that
to vest a title to land either legal or equi-
table, there must be a person in esse to take."
It was the common opinion of all locators
that if the entry and survey were made In
the name of the soldier to whom the war-
rant issued, that was sufficient, without go-
ing into the inquiry whether he was dead
or alive- As a consequence of this general er-
ror, a vast number of entries in the military
district, both in Ohio and Kentucky, were
made in the names of deceased persons, to whom
warrants had issued- It is obvious that such en-
tries must have been made in ignorance of the
law or the facts, as, in every concdvable case,
(lipre wos every inducement to make a valid en-
try, and no motive can be conceived for the
making of a void one. This subject attracted
the attention of the Kentucky Legislature as
early as the year 1792. As it was known these
entries were numerous in that State, and in-
tended to be bona fide appropriations of tha
land entered in all instances, a quieting act wu
passed in that year which derlarcd that landa
S anted to deceased persons should descend to
eir heirs or devisees. Morehead & Rrown's
Statutes of Kentucky, vol. J, 779; Littell'i
Laws, vol. 1, 100. This defect seems not to
have come to the knowledge of the locators in
Ohio, who continued the same mode of location
till 1B30, when the Supreme Court of the United
.States decided that nn entry in the name of a
deceased pTson was a nullity. Gait et al, r.
Galloway, 4 Peters, 332; same doctrine affirmed,
RlcDimald v. Smalley et at. Q Peters, 261. By
those decisions, the entry in the name of Brad-
ford in the prenent ease would be a nullity,
were no law of Congress affecting It not ap-
plicable to those cases. My present purpose is
to treat the entry in the name of Bradford as ■
2EJ
ScPBcuE CvUBi OF tuc Ukited States.
nullity; as ttioiigh tliis, n:i(l the two cnacs above
referred to, were precisely tlie same in (acti
and circumstntioes. The entry, then, in the
name of Bradford being a nullity, it follows, of
course, that the warrant issued in bis name re-
mained unsatisfied, and is so to this day; and that
the uarrant, on the death of Bradford, descended
to the heirs of Bradford (Kerr v. Moore, 9
Whcaton, 670), and not to his administrators.
Consequently, the heira of Bradford, on dis-
co ve ring the invalidity of the entry, had noth-
ing to do but to reenter the warrant on the
same land and acquire a valid title. In this
way they could hava readily cured the defect,
if any, in the title of the land in question;
38«*] "for, up to the time of the entry made
by the complainant (in September, 1B3S) the
land remained unappropriated, according to
comp'ainant's own showing. That the respond-
ents had it in their power to cure the defect in
their title, also appeara by the complainant's
own showing, and b^ bis own conduct; and it
was to prevent their doing so that the com-
plainant kept the defect Irom the knowledge
of the reapondenta, until be bad effected an en-
try of the land in his own name. Had not Gal-
loway entered this land, but filed bis bill for
revision of contract for defect of title, would
not the court have said it is in the power of de-
fendants to perfect their title, and they should
have an opportunity of doing aoT And how
came he poascEised of facts which enabled htm
to detect the flaw in their title! As again ap-
pears by bis own showing, through the respond-
ents, tbey communicated to him the dale of
the death of Bradford; on comparing which
wilh the date of the entry, he being an old
lo<*ntor, and a party to the suits of Gait v.
UutloH'ay, and M'Danald v. Smalley et al,, knew
full welt the defects of the title; and equally
well did he know that the re^ipondents were
ignorant of the defects. When, therefore,
throu<;h the respondents, and in consequence
of their contract wilh him, he became ac-
quainted with this technical flaw in their title,
of which they were totally ignorant, wh^t
was lie bound in equity and good conscience to
do? Had he a right to use that information bo
acquired to defeat their title, and to put it out
of their power to comply with the contract with
him? I think he was bound by every princi-
ple of honesty and fair dealing to have pointed
out the defect to them that they miglit remedy
it (a matter ao easy for them to effect), before
they would have had to make him a title,
which, by their contract, they were not bound
to do till January, 1B39. It he was not morally
bound to point out the defeota to them, he cer-
tainly had no right to do any act which would
prevent their making him a title at the time
atipulated.
I take it to be a well settled principle, both
In law and equity, that an obligee shall do no
act to obstruct or prevent tlie obligor from com-
plying with his covenants; and if he do, the
oblicor shall be thereby discharged from its
performance. Ballow v. Tucker, 1 Pickering's
Rep. ZS7; Co. Lit. 20S; and Bacon's Abridg-
ment, Tit. Condition; 5 Viner'a Abr. Condi
tion, 242, etc And when a complainant comes
into a court of equity, liable to such an impu-
tation, it is certain that the court will not grant
him its aid. but will leave him to his remedy
inw, if any he have, or is entitled to.
•That in this ease the complalnnnt ['KJ
has, knowingly and dishonestly, done an art
which deprives the responilents of tbe U^l
power to comply with their covenant to ermvtj
a good title, there can be no doubt resting upon
the mind of anyone who will carefully e^aI^i■e
the transactions as disclosed by the bills sttd
answers. The Statute of Kentucky, before re-
ferred to (Morehead & Brown, vol. 1, 779; Lit-
tell'i Law, vol. 1, 160, 1792), shows that the
title was void by reason of a technical rule of
law. Yet they are bona fide titles, which lb
equity had a claim to protection. Hence tht
passage of that act. The words of that act ire
as follows: "^Vhereas, in some instances,
grants have issued in the names of persona «ha
were deceased prior to the date of tbe grinl,
and cases of the same nature may happca in
future; be it enacted that in all such cases the
land conveyed shall descend to the heir, bein,
or devisees, in the same manner that it would
do had the grant issued in the lifetime of sudi
decedents." This act, though its language ti-
tends to the heating of titles where tbe patent
only issues before the death of the patentee,
yet the courts of Kentucky have, by a series of
decisions, extended the equity of the act to
cases where the entry and warrants bore date
subsequently to the death of patentee. Hani-
ford V. Mineler's Eeirs, 4 Bibb's Rep. 385;
M'Cracken'a Heira v. Beall et al. 1 Ky. Rqi.
208; Bowman v. Violely, 4 Monroe's Rep. Jit;
Adams v. Logan, 6 Monroe, 177; Lewis v. MT.tr,
I Marshall, 200; Speere v. Fiahack, 1 Marahall,
366.
A recent Act of Congress, passed Hay ISth,
1836, entitled "An Act to give elTcct to pstrnii
for public lands Issued in the nsmes of decessnl
persons, provides that in all cas«8 where patents
for public lands have been, or may be isaunl
in pursuance of any law of the United States,
to a person who had died, or who shall hert-
after die before the date of such pitent, the li-
tie to the land desifiiiatcd therein shall inure
to, and become vested in, the heirs, devisees or
aF<si;>nees of such deceased patentee, as if tht
patent had issued to the deceased person durinj
life; and the provisions of ssid act shall be eoi-
strued to extend to patents for lands witbia
the Virginia military district in the State ct
Ohio."
It ii apparent from the provisions of the fore-
going act, and from the fact that Congress ss*
fit to pass it, that that enlightened body ron-
sidered as did the Legislature of Kenttietj
nearly a half century before, such titles, thoii|:k
void in !aw, entitled to protection, as bona GJe:
and but for the act of the complainant in tM>
case in entering 'the lands in dispute, [•!>*
thi!3e respondents, beyond all doubt would, hj
virtue of the aforesaid act of Conin'eBs, h*<t
had secured to them a perfect legal title to stU
land; and I shall endeavor to show that tiej
have such a title vested in them by virtue of
said act of Congress, notwithstanding the dn-
honest an<I fraudulent efforts of the complsis
ant to deprive them of that title— of that ben-
after, when I shall hare disposed of the isss.
so far as it rests upon equitable principle, iai
it is not my purpose here to diacuas tbe qae*-
tion "whether Galloway could, uodtt the rir
cumxtances, recover in a court of law. on Ibr
covenants of these respondents in their pontnrt
with himi" whatever may b« his ri.tht i> •
Galtoitat t. FimzT um Bau.
•onrt of taw. It k tut °I**' ^ '"y '^"<' ^^'■^
k court of eqnitj will lemve him to resort to his
legtt ramediei, if any he has; and will not af-
ford bim Ita aid to enable him to reap the fruits
of vn attempt to overreach the respondent*. It
it a leading principle of equity that a court of
cbancerj, when called on for apeciBc aid, ex-
eniaei its discretion whether it will interpose;
■nd will in no case interfere when the partj
MMking iti aid ha* practiced any unfairness.
He must come into court with clean hands.
This principle la u old as the chancery law it-
self—a* long ago as Sergeant Usynard'a case
(Freeman, ChanceTj Reports, 1, new edition).
Lord Nottingham, In delivering the judgment
of the court, said "that as this court suffers no
man to overreach another, so it helps no man
who has overreached himself, without anj
practice or contrivance of his adversary." 2
Freeman, lOB; 3 Swanaton, 662, Maynard r.
Morely.
Again, "In equltv a party is not at liberty to
set up a leeal defense which grew out of his
own miseonduet." 2 Hovenden on Frauds, 16;
Morse T. Mentz, 6 Msddock, 2S. Surely, if
such a legal defense could not be set up, much
less could it be made a ground for relief by a
complainant. It is also a familiar rule in equity
"that he who comes into court for assistance
must do equity." Rowe v. Wood, I Jac, &
Walker's Bep. 833; 2 Hov. on Frauds, 41.
"The interposition of courta of equity is gov-
erned by our anxious attention t« the cl^ma of
equal justice; and therefore it may be laid
down as an universal rule that they will not
interfere, unless the plaintiff will consent to do
that which the justice of the case requires t« be
done." Fonblanque'a Equity, note A, page 190,
eh. 4, sec 41; Phila. ed. 1831.
Now, it may he asked, what does the justice
of this case require of the comp'alaantT The
court vlU prescribe such terms to him as jus-
tice shall require; and those terms will be, I
280*j conceive, that he shall 'pay to the ra-
apondents the contract price of land, agreeably
to his contract. And that the respondents con-
ve; or assign to him, out of the unsatislied
warrants belonging to them, a number of acres.
equal to the quantity contracted to be
reyed to him by them, and which he has
It out of their power to convey. Both parties
will then stand as they would have done had
tbe complainant not interfered, and respond-
ents re-entered and perfected their title. A
vandoT is entitled to speciSc performance,
though he have no title at the sale. If he can
make one before the master's report. 10
Vesey, Jun. 316; 14 Veaey, Jnn. 20S. There
■re many eases in which, though courts refuse
«pecific performance, yet they will not reacind
tsontracts. 1 Wheat. 190; see also 8 Story's
Equity, 88, and the cases there referred U>.
Xhia, I take it, would be fair and equitable,
were the courts authorised and disposed to in-
terfere in granting relief in any shape.
But if 1 have a correct view of the case and
the principles which should govern it, no relief
vrtiMMver can be granted. A decree of dis-
ffilT-tfl of the bill, with costs to the respondent,
fa blU that can be done, and that on the ground
thmt complainant asks the aid of tbe court to
•xwUe him to overreach the respondents, and
tbKt ia all that I oaa discover Iw 4oea seek.
I have thus far discussed the case oa Ui
hypothesis that the Litis of the respondents «w
null and void. I shall bow aadeavor to slum
that though it was ao in its inception, the law
has come to their relief, and made that a valid
title which at one time was deolu^ by eourti
to be a nullity.
And the entry made by Galloway in Septem-
ber, 1635, is null and void, on the ground ol
its being an illegal interference with the right)
and title of the respondents, in violation of at
express prohibition of law.
Up to the year 1807, the patent granted It
the name of Bradford, a deceased person, ww
a mere nullity, it is conceded in the authoritlet
already cited, and any person holding a mili-
tary warrant, ml^t have entered the land il
But since the 2d March, IBOT, it U beUeved
the lands covered by the warrants in the nami
of Bradford had not been open to the entry ol
any other person, or liable to be covered by any
other warrant.
On the Sd of March, 1B07, Congress passed
an Act, the 1st section of which extended to
owners of military warrant* a further term at
three years to complete their locations; which
act had the following 'proviso: "Pro- ['299
vided, that no locations as aforesaid, within the
of this act, be made on tracts of land, for which
E stents had previously been iasued, or which
ad been previously surveyed. And any patent
above mentioned tracts, shall, after the passing
.,..._ __. .___,_ __ .__.._ _,,_.. ,. ,..g
, It been issued, or whii'
previously s ,
ly nevertheless be obtained for land
located contrary to the provisions of this sec-
tion, shall be considered as null and void."
In May, 1826 (7 vol. Laws of U. B. 618).
Congress passed an act extending tbe time for
making locations till 1st of June, 1832. The
3d sec. of that act contains the prohibition of
the act aforesaid of IB07: and extends that pro-
hibition to United States lands, which the Aet
of 1807 did not do.
On the 31st of March, 1882, Congress passed
another Act, extending locations for seven
years. It being an extension of the Aet of
20th of March, 1820, of course has tbe prohib-
iting olaim as to military lands, and ia now in
force.
In the case under consideration, there waa
both a survey and patent; and it fumisbea a
case clearly within the provision referred Uk
That the proviso cou!d have been intended only
for valid surveys and patents is idle to suppose;
auch needed no protecting tcglsletion. The
Eroviso was intended to protect uuda defective-
/ located and patented, no doubt; and so the
Supreme Court of the United States have de-
cided. Doddridge v. Thompson, 9 Wheat. 481.
In that case the court say: "The records «l
this court show that many controversies wars
firoduced In that county by the mode of locat-
ng and surveying military lands, which had
been adopted under the laws of Virginia; and
it Is not unreasonable to suppose that Congress,
when giving further time to make locations
and snrveys, might be disposed to cure the de-
fects in titles already acquired, and to prevent
aecond locations on lands already located. The
words of the proviso, too, are adapted to Um
saving of private rights."
In the case of Doddridgo v. Thompson, the
defendant attonpted U> protaot hia title under
SuptaiiE Oooxt or tbi UxntD Suna.
thf prorlM) of the Act of 1807, on tb« ground
that the lurve^ of the plaintiff wm made in
1810, after the passage of that act. But the
eourt decided that the proviao waa not appli'
cable to aalei of land tt the United Statei land-
offieea, and waa intended to embrace onlj mili-
tarr aurvefi and patents. BcEides, the prohi-
bition waa onl; m againet locations, and the
(aets of the case did not *how but the location
was made previoue to the passage of the Act of
ISOT; and in the abaence of proof on that sub-
ject, the couit would preaiune that the location
waa mads previausty in support of the
191*] "patent of plaintiff. The reasoning of
the court in this case plainly ahows that had
the defeudant'e title been one of military origin
and the location of the plaintiffs been after the
paasege of the act of March, 1807, his (the de-
teDdaot'e) title must bare prevailed by reaaon
of the proviao aforesaid.
In the case under consideraliOD, tbe title of
the respondents is of milltar)' origin; and the
location, survey and patents, all bear date
previous to the passage of the Act of 2d March,
1807.
Tbe title of the complaiaants la also of miti-
tary origin, and his location and survey are
both since the passage of tbe Act of March 31st,
1S32, now in force, and containing the proviso
of the Act of 2d of llarcb, 1B07. It is not easy,
therefore, to con<.'eive bow tbe location of the
compiainant, made on 2eth of September, 1835,
can possibly escape tbe operation of the pro-
viso of the Act of March, 1807, and the proIU-
bitton contsined therein. The location of the
complainant's coming within that prohibition,
then, as I humbly conceive it clearly docs, it
must be null and void. And the title of the
respondents b^ng thereby freed from the em-
barrassments of Galloway's entry, is by the
healing operation of the Act of lath May, 1630.
made good and valid. It may not be amiss
to remark here that so vigilant has Congress
been in protecting defective titles, acquired,
bona tSde, that after the decision in the case of
Doddridge v. Thompson, in which the court de-
cided that tbe proviao of the Act of 1807 did not
extend to lands under the United States si
veyi in the very next renewal of tbe extenai
of time for making locations in military lands,
the prohibition wus made to extend to lands
within the district sold by tbe United States.
The decisions in tbe cases of Gait v. Gallo-
way, and M'Donald v. Smalley et al., (which
have no doubt been relied upon by the com-
plainant, to sustain him in his illegal and
unjust course of conduct in tbi a case, bein^ a
party to both those cases), can have no bearing
on this case. The facts in this case are so
widely varying from the facts in those eases, as
to render them entirely inapplioable,
in those cases the party nolding title under
the entries made in the name of the deceased
person could not avail himaelf of the benefit*
of the proviso to tbe Act of 1807; as tbe en-
tries snd surveys in each case, by both partifs,
were made previous to the passage of that act.
In Gait V. Galloway, Gait's entry was made
In August, 1787, 4 Peters, 333, and tbe with-
drawal in ISOfi, five years after Gait's
282*] 'death, and two vears beforp the pas-
Mge of tbe Act of 1807. In M'Donald t.
^nislliy et al., U'Donald claimed under an en-
.091
try made 24th August, 17S7, in tbe name <(
David Anderson; at which time Anderson au
proved to have been dead. The defendsit^
:Smalley et al., claimed uiidiT an entry on uim
land made the 19th of February, I7U3, in tbe
name of Stephen T. Morou, and a patent to
Morou, in 1796, and before a patent issued on
U'Donald's entry. These cases, therefore, oat
coming within tbe provision of tbe Ael of
1807, do not conflict in the least with the opiQ.
ion of tbe court in the case of Doddridge v.
Thompson, as to tbe intent of Congress sod
the healing operation of the Act of t80Ti sor
with tbe doctrines I contend for in this -jae
The patent to Charles Bradford, the antra I or
of respondents, purports to vest in him a Ii-gil
title to the Una in controversy. If the Act of
1807, and subsequent acts of Congress refentd
to, embrace this case, as I thinlc has beea
clesrly shown they do (and the more so, sines
being healing and remcdiHl acts, thi-ir provii-
ions are to be construed liberstly), then (he
benelits of those acts inure to the heirs or dir-
isees of said Bradford. If the title be cured st
all by those acts, it is so far cured as to malu
it a legal title; for tbe patent must convey a
legal title, if it pass any: of consequence, if tlie
patents of Clierks Bradford convey a legal ti-
tle, the title of the rtcpondents ia a go-^ and
legal title, to the extent they eoveiiunted to
convey, and the ground of complaint on the
part of (Calloway is gone, and his hilt must he
dismissed with costs.
I find nothing in tbe argument, or in the
authorities cited in tbe argument in the Circuit
Court, to abske my confidence in tbe legal title
of the respondents, ss cured by the acts of
March, 1S07, and May, 1836.
The case of Dunn v. M'Arthur, decided ii
July, 1836, so far as the record of tbe decree
diac loses, has no bearing upon tbe question.
The case as stated by tbe gentleman, might bs
considered as of some weigiit. But is he waT'
lanted in his statements by the records? Tbe
decree was taken pro confesso, and of course sa-
aumed as true all the allegations made in tbs
bill. The hill undoubtedly contained the alle-
gation that the entry, looation and patent were
void, having been made in the name of a de-
ceased person; and at the time of the filing of
tliat I-' 1 (which is evident from the record
muBi :...ve been prior to the act of May, 18361
thtre is as little doubt that the entry, location
snd patents, were null and void. But bv tbe
Act of May, 1838, they were made good and val-
id; and had tliat act been known and *re- [*S*1
ied upon at the time of the entering of tbs
decree, it is manifest a different decree wouU
been the result. It dors not appear that
Ihe Act of Miiy. 1830, was at all relied upoa.
or that its existence was known; and it is fair-
ly prrsumuble that it was not known, tt
e was entered but a few days after its
piisSB;!e, and the cause was suffered to go oB
without any defense. I uke it. therefore, that
the Acl of May, 1830, was not in question: sad
the decision or rather decree, for there waa do
drcision, of consequenee, has no applieation ta
he eaae umlor coMsiilTalion. It could oA
nyhow. be taken as of any force in the gar-
bled state in which it apoears. Had the peini
been decided, aa stated oy tfae eomp^aiuani's
eounael in the Circuit C^urt, a full record
Pmm* tt.
rbSS
OftUAWAt V. ViinxT AMD :
.vould hiVF tiFpn prixliirol, and tUf court
i^ould not have been aiked to replf upon the
bftre statement of eounael.
The ciise of Blight'i Leasee t, Rochnter, 7
Whcftt. 648, iloee not iirpugn the doctrine
that ko obligte or covenantee has no right to
do utj act to prevent his obligor or covenantor
enrnpijimg with his obligation or covenant.
T1>e question in that case waa one or eatoppel.
The doctrine of estoppel does not apply to this
MM, nor docti the question at all arise. I am
unable to diHcover the leSHt analogy between
that case and this. Had the contract sought
to b« rescinded in this case never been entered
into, but as action of ejectment brought by
these respondents against GHlloway; and in de
Tense of such action Galloway had set up hii
■ubasquent entry, and the detective entry and
survey in the name of Charles Bradford, to de-
feat the pleintilTs' title; and in answer to that
defense the plaintiffs had insisted upon Gallo-
way's recognition of Charles Bradford's titk
by his purchase from one of the heirs of
Charles Bradford (^'inlcy Bradford, of whom he
purchased an undivided moiety), and claimed
thnt he should be thereby estopped from dis-
puting the legality of Charles Bradford's title;
tben the case cited from 7 Whiston might
have had some application. But that is not
thfa case. I do not deny that after the vendee
has received his deed and all the title the vend'
or can give, he may have the ri(;lit of pur^
chaaiog tn other Interests to fortify his title.
But he shall not be permitted, before he has
received a deed, to procure an outstanding ti-
tle; and then claim to have his contract re-
scinded because by his own act hs has put it
out of the power of the vendor to comply with
bia covenant or agreemeat. 'The utmoet be
eonid claim under any circumstances, I appre-
hend, would be to have the amount paid for
the outstanding title deducted from the pur-
eliase money due; to tnake it a ground of an-
aV4*] nulling 'the contract and avoiding the
Cjrment of the purchase money entirely, would
monstrous injustice, sii''h as I believe a court
of equity will never sanction or listen to.
If it is at all doubtful whether the respond-
oita have the legal title in ordinary eases, it is
pr«Bumab1e that Galloway would have applied
to the entirta, either State or federal, within
whose jurisdiction the land lies; and who would
bo considered competent at least, in the first
instance, to make a proper application of the
principles of the lex loci rei sitK.
He, however, has thought proper to resort to
another tribunal, and from their decision he
haa appealed to the highest tribunal of the
Union. To that tribunal the defendant* in er-
ror also come, confiding in the justice and hon-
esty of their case; believing that the great ju-
dicial counsel of the nation will continue to
administer justice in equity; and who, although
the decree they may make may not settle the
controversy, so far as regards the title to the
land itself, will yet, by their opinion in this
case, re-afGrm the great and well settled prin-
ciples of the law of equity that must govern
tlua controversy in all its bearings, wherever
puraued, and wherever detamuned.
The Mil allegea that amnptsinant. an the llth
of March, 183S. purchased from Fenry E.
Pinley and David Barr, who acted for himself
and wife, the aistsr of defendant, Finiey, the
moiety of two tracts of land lying in the i^tata
of Ohio; one for one thousand two hundred,
and the other for one thouaand acres, founded
on a warrant for two thousand six hundred wtd
sixty -six and one third acres, obtained by
Charles Bradford, as an olHcer in the revolu-
tionary war, in the Vir^nia continental line.
That Flnley, and the wife of Barr, were the
heirs of their mother; who derived by descent
liety at the lands from her father, CharlM
moiety of the two tracts, part in
hand, and the balance by in«tnllmenta; the last
of which was to fait due on the first of Janu-
ary, 1836, And Finiey and Barr, covenanted
with complainant to convey the moiety of the
lands contracted for, in fee, so soon aa be paid
the purchase money.
It it also alleged Finiey and Barr promised,
at the time the agreement waa made, to for-
ward from Pennsylvania, where they reaided,
to Galloway, who resided in Ohio, the title
papers, and the power of attorney, authorizing
Barr to contract for liis wife.
■That after the date of the contract, [*30»
the wife of Barr died, a minor, intestate, <rf
course, and without issue.
As grounds of relief, it is averred that the
title papers were not forwarded, nor the power
proituced. But, prinripally, that after making
the contract, the complainant discovered Charles
Bradford, the grantee, had died in 1760; and
that the lands were entered and surveyed, and
granted in his name, in 1703 and 1704.
Finiey and Barr, by their answer, admit the
contract to have been made as stated; deny
that title papers were to be furnished by them;
Pinley was her sole heir; admit Chnrlcs Brad-
ford died in 178S, and thnt the lands were
entered and surveyed in 1793, 1794, and after-
wards patented in his name.
The respondents, however, mainly rely for
their defense on the fact thut, on the 2Bth of
September, 1835, the complainant. Galloway,
entered the two tracts of land, the moiety of
which was agreed to be conveyed in his own
name, and, as they allege, without their knowl-
edge, and with the fraudulent intent of depriv-
ing the heirs of Bradford of it; and thereby to
render It impossible for them to comply with
'heir contract. And the defendant, Finiey,
'or liimself. and as heir of his sister, offers to
comply with the agreement.
It is urged, the entries, surveys, and granta
In the name of Charles Bradford, after his
death, were void. Suppose the fact to have
been so when the agreement of March, 1S35,
ras made, and that the lands were subject to
ppropriation when Galloway entered them, tn
September, IS35, then the rule applies—" That
if a vendee buys up a better title than that of
the vendor, and the vendor was guilty of no
fraud, he can only be compelled to refund to
vendee the amount of money paid for tbe
better title." Learey v. Kirkpatrick, Cooke's
Ten. Bep. 211; Mitchell v. Barry, 4 H»yne'B
Tto. Rep. 138. la reforming thi* contract.
aontnu Oftun or rai Vlnrm Sum.
•i^^ty tTMti tbe purchaMT ■■ ft tntatee for the
Vwttdor, Iwcftuac ha bolda uudar tha Utter; and
Mti dona to perfect tha title by tbe farmer,
when in poucBiion of the land, Inure to the
benefit of him under whom tbe poeiewion wu
obtained, and through vrbom the knowledgp
that a defect In the title exiated, waa derived.
tha vendor and vendee stand in the relation of
landlord and tenant; the vendee cannot dis-
avow tha vendor's title. 8 Patera, 48; 2 Mar-
ahaH'a Ky. Hep. 242; G Yerger'a Tea. Rap,
3S8. Thii cue fumiehea a fair illustration of
tbe propriety of tbe principle. Charlee Brad-
ford was a non-reaident; that he had died be-
IVA*] fora the 'lands were entered and granted
waa unknown to Galloway until be obtained
tha information through the beira of the grant-
or, after the sale; for forty yeara the title had
bean deemed valid, and the defect waa expoaed
eerti^ned waa confidential in its character as
between the partiea to the contract, and Oallo-
way could not be permitted to avail himself of
favorable circumatances, he could only have
reformed, and the amount advanced to perfect
tbe title deducted from the unpaid purchai
money, But thia ia not the attitude the con
plainant aasumes by the bill firat filed. He
claims an entire resciaiion.
On the eoth of May, 1830, pending the suit,
Congresa pasied an act (4 Story's Bd. 24, 36]
to give effect to patents issued to deceased per-
aons, which provides "that {^nts iaaued to
peraoni who bad prnvioualj died, abould inure
to and become veated in the heirs of aueh de-
ceased patentee aa If the same bad iaaued to the
deeeaaed person during hia life, and that the
proviaiona of the act should be construed to ez-
Mnd to patents for lands within the Virginia
■tiilltar]> district in tbe State of Ohio."
Thai tbe legal title to the landa patented in
tbe name of Charlea Bradford vested in his
helra by force of the act, cannot be denied. 0
Cranch, 43; 2 Wheat. 196. Grant, then, all
that is claimed for the comp'ainant, still hia
•ntriea of September, 1B3S, ronferred a mere
equity, and the defendant, Finley, bolda the
fee; and the complainant, by raiiting the war-
rants from bis entriea, will have sustained dam-
age only to the amount of the officer'a fees; or,
talcfl it the other way, and compel Finley and
Barr to compensate for the warrants, then of
course they would be entitled to them, and the
effect be the same. Had Galloway's entriea
been valid, and had he acted in good faith aa
regards the defendants, by giving notice of the
meana uaed to oerfect the titles; and bad he
•on^t by the bill what in equity and con-
■deaea he waa entitled to aa compensation, a
court of chancery could not have refused re-
llof: but ha Invoices aid to defeat the entire
contract, and nothing lesa. in sanction of acts
Intended, from hia own abowing, to deprive the
complainants of their money and lands; thus
aiauming an attitude before the court, and mak-
ing its active aid, imder circumstances that,
were ha a defendant, and set up like clsims, it
would be difDcult to aay be could be com-
C mated 1 oa a oom^alnant, he auraly cannot
heard.
*Tb«a H to tba loM of tbe warranU t*a(T
and feea; It having been the clear duty <if tka
appellant to enter tbe lands for the benefit of
his vendors, and only to have demanded ca«-
Eensation for rxpenae and trouble, and ha
uving entered for himself, a court of equitj
muat decline to assist him (in the language of
Mr. Justice Stor^, 2 Story's Eq. 8) to escape
from the toils wbich he has studiously prepared
warrants. The Act of Congresa bavins con-
ferred on the defendant Finley the leexl titlt,
equity will not take from him bis legal advan-
tage. 1 Wheat. 19«; 2 Story's Eq. 88; Sug-
den an Vendors. 383, 375, 7th ed. If Finley
has the title, and can perform the contract Oo
the lat day of January, ie3», when tbe laat
payment fall* due, thia is all the law can re-
quire of him. Yet it is an eslsblished rule ia
equity that where the vendor has not the power
to make title, the vendee may, before the time
of performance, enjoin the payment of the
purchaae money until the ability to comply
with the agreement for title is ahown (Boyer v.
Patton, 1 Ten. Rep. 258; Ralston v. Miller, t
Randolph's Ta- Rep. 44); but then tbe court
will give a reasonable time to procure the title,
if it appears probable, on refcrpnce, that it may
be procured. Frost t. Bronson, fl Verger'a Rcp-
30, 40.
By an amendment to his hill in October.
1S36, the complainant acts forth his entries of
1635, and the surveys thereof, and again prays
a rescission of the contract of March, 183S;
"or, that if tbe defendants at the data of the
contract had a good and perfect title to the
premises they contracted to convey, and author-
ity to perfect their agreement, then the coM-
plainant is ready, and tenders a compleUoa o(
the contract.
The only allegation in the amendrd UH,
varying the caae la, that at tlie time the agree-
ment was entered into, complainant waa
ignorant that the patents for tbe larida had
been made in the name of a person that waa
dead. The respondenta admit the fact, but
state that complainant derived hia first knowl-
edge of ita existence from a aight of Charles
Bradford's will, after he made the af^reement.
It seems re^pondmta were at that time cqunUy
ignorant, not knowing, or having ovrrlouked
the dates of the entries and patents. If com-
plainant had not entered the lands, then he
would have been entitled to a reseiaaion of tbs
contract, had no title been acquired by th« de-
fendants through the medium of Congrem.
The principal ground relied on for relief be-
ing that the patents 'were void, becftuao {*StB
mnde sfter Charles Bradford's death, w« wiU
proceed to examine it. That > patent Una
me.de passes no title la tme in the natiu* ef
things; there must be grantee before a (raat
can take effect, and ao this court held in GaK
V. Galloway, 4 Petera, 34S; and M'Doaald v.
Smalley, S Petera, 281. Yet this ia not tha
question presented; It ia whether tbe appellant
was permitted to enter tbe lands purporting ta
have been granted to Charles Bradford, not-
withetanding his death. And tiiia depends op-
en the Act of 1807 (ch. 34) and others, continu-
ing the proviaiott up to the date of Oalloaray^
•tttriaa. The time («r locating YirginiA vili-
ten claims far tervIcM oa Um continental <■•
teblialiiuent, between the Little MUmi Mid
Sdot* riTen had expired, and bj tbe act, Con-
0«M extended the time. But on re-opcning
She land -office, the following exception wAa
introdueedt "Provided, that no locations a«
Rforeiaid, within tlie above mentioned tract,
•hall, after the paiaing of this act, be made on
tr«ctB of lands for which patent! had previous-
ly been Isaued, or. which had been previoiulj
•urreyed; and any patent which may neverthe-
!«■■ be obtained for lands located contrary to
the provisions of this aection, ehall be cooaid-
tred null and void."
It ia insiated, for appellant, that the section
had reference to imperfect, and not void titles.
Tbe Legislature merely affirmed a principle
not open to question, if this be the true con-
■trucliun. Had an effective patent been issued,
the government would not have had any titl<
remaining, and a second grant would have beei
▼oid of course. Something more, undoubtedly,
waa Intended than the protection of defective,
yet valid surveys and patenta; this ii not de-
nied, but the argument insists only irregulari-
tlea were intended to be covered.
It is difficult to conceive how an irregular
Ctent could exist, unless it passed no title,
c will not perplex the decision with supposed
eases of irretntlar surveys, but examine the act
of Congress, and ascertain ita effect as reenrds
tbe grant in the name of Charles Bradford. It
fa fair upon ita face, and we will not look be-
hind it for irregularitica. 7 Wheat. 214.
The death of the grantee is an intrinsic fact,
iii>t impairing the equity of the claim as against
the government. His heirs had an interest in
ecnnmon in the military district, with all aunitar
claimanta. The truth of the position is unquea-
tionsble. Jackson v. Clarke, 1 Peterp 635; Neal
T. E. T, College, « Verger's Rep. 79, 190. The de-
fects of all others most comimoB in the military
grants of Kentucky, Tennessee, and Ohio, were
where the soldier had died, and the entry, sur-
SkV) vey and grant 'hai^ ueen made in the
name of the deceased. In his name the warrant
almost uniformly issued) who tbe heirs were
was usually unlcnown to locators, and disre-
Srded bjr the officers of government when per-
itiuf titles. In Tennessee and Kentucky,
C vision was made at an early day that the
r ahould take by the grant; and why ahould
we presume Congress did not provide for the
protection of his claim to the lands purporting
to have been granted, when the legialation of
the federal government waa, of nsMsslty, eon-
trolled in this respect, by the expeiienea of
members coming from States where there were
military lands t The statute la genenl. Includ-
ing by name all grants, not dliUnguishing be-
tween void and valid; and the plainest rules of
propriety and justice require that the eonrta
■houid not introduce an exception, tbe Legisla-
ture having made none. 1 Peters, 636, 8311;
Martin &, Verger's Ten. Rep, 381.
But it is insisted this court did make an ex-
ception tn the cause of Lindsey v. Miller, 6
Peters, B66, and which ahould be followed.
What waa that case? A grantee from the gov-
ernment sued a defendant in ejectment, claim- 1
ing, in the military district of Ohio, by virtue
fit an elder ntry and survey; and the quBstion
The defendant's entry, by mistake, had bem
founded on a warrant for services, not in the
continental line, but in the Virginia State line;
a claim not subject to be satisBed in the Ohio
military district. 7 Wheat. 1. The location
and survey were therefore mere nullities, and
the court very justly held that Congress did
not, by the Act of 1807, contemplate such
claims, and that they were not within tbe pur-
view of the act. But had the claimant been
entitled to the satisfaction of his warrant in
the military district, in common with others,
for whom the government held as trustee, the
case might have been very different, even had
the entry and survey been invalid. Congreaa
had the power in 1807 to withhold from loca-
tion any portion of the military lands; and
having done so, in regard to that previously
patented in the name of Charles Bradford, the
complainant, Galloway, had no right to enter
the same. His location being void, it follows,
the Act of EOth Muy, 1836, vested the title to a
moiety in tbe defendant, Ilenry R. Finley, ex-
empted from any influence of the entries.
•HENRY TOIJND, Plaintiff in Error, [•10«
HORATIO SPRAGUa
Foreign attachment — service of process under
federal taws — party cannot deny jnrisdiction
after having appeared and ptf aded to isaue^
decision of motion not "^nal judgment" — ae-
count between merchant and merchant, when
stated — instructions to jury.
Process of lurelgii attachmcDt cannot he properly
Issued b7 tbe circuit courts on tbe United B(it«
t round wItbiD tbe distrli
Tbe tnie conatrucClon of ihe clevtntb section of
the JiidlclCT Act ol 1786 Is. Cbat It did not mean
to dlitlnguish betwcea those who are lahibltaDta,
or found within tbe disirkt. tjy proceaa lesued out
Dt the Circuit Court, and persons domiciled abrosd
BO as te protect the Drst. and leave tbe others net
within the protection; ~ '"' ' '"
those who
nrllhin
>redkanients stated In t
s In <
tea, cbey shou
r other ot 1
:hose who wore not within the Ualtnl Stales 11
vas not In [he con tempi at Ian ot Congms tbat
tbe7 would be at all subject, as defendants, to tbe
process of tbe elrcnlt courts : which, by resBOo o(
Ihelr being In a torclen Jurlodlctlon, could not be
•erved noon them, sntt therefore there was no pro-
vision n^atsoever In relation to tbem.
B7 tba grnetai provisions of the Iswa of the
United Stales: 1. The circuit courts can Issue no
Srocess beyond the llmltij of their districts. 2. In-
ependentiy of positive legislatton. the process can
only he served upon persons within the same dls-
"'"-.. 3. The acta of Congresi adopting the State
,._- M adopt tlu form and modes ot service oolj
BO far as the peraons are riEbtfulty within tbe
reach of sncb process, and did not Intend to s
larga (he sphere of t"""
the appearance of p — _-
onlr In i'S*es In which sach pcriions are amenable to
tbe prucrss of tbe Clriult Court, In personam:
Nura—What coDSlllula* an accoant stated, see
nolea t« 18 L. Sd. Q. >■ SMl ST L.B.A. Bll.
»nd did n..
Jurisdiction of the elrcoll
t to attach propertj to compel
"1 properlj be used
Sunuoia Conn oi nu Uhitbi Stahl
ir[th p. Th« iccoaDt a
trif ctDiiol tw iBiiued aeaiDsl Iilm except u ■ part
Of, or toietber witb proceaa to be aecved upon hit
TheClnutt Court of each dtitriet alt wltbtii and
for that dlatrlct, and arc iMuuded bj its locaJ 11m-
eilont o( the JurlidlC-
tlon ot tba Circuit Court
•t latta In rpipect to nen
ODlji be eierclud witbia 1
CoDcren might bave autt
Union.""! ^t'aotaoaei
aulhorlied B
dlatrlct. will
:■ ol tbe dlattieL
1 tbe single ciceptlOD oC lubpcena
la faror at Itat United
United Btalea.
A part; agalcat irh- ~
propertr ■ forelRO attach
laaiie auch an attachment haTlng appeaced
iult and pleaded to luue, cannot iftuiwarda detij
the JurladlctLon of - — "" ------- - -
peraoaal prlTllege,
Tbe part; had. i
:t of IT8S autborlzea tbe
Supreme Court to lasue wrlta ot error to bring op
Baal JudBmcnlB or de
The decision of tbe C rcult Court upon a rule or
motion ti not of tbst
character. Sucb declslona
are not final Judgmenl
No principle of law
brint a ease within tfa
• exception ot mercbandlae
ucouDta between mere
bant and mercbant. In the
■tatute of lluiltallona,
there must be an account;
en or current : that It must
be a direct concern of
trade: that liquidated de-
maodt on blllB and not
a, which are onl; traced up
to tbe trade or mere
andls* are too remote to
come wllhin Ihli desc
Iptloa. But when the ac-
connt )b itated betwer
tbe partlea. or wben au;-
tblnr ahall tiare been
done bv tlJem, which fi.
Is eqiifyaietit to a aettie-
their Implied admlisio
Where
let tied
t the orlBlna
tbouRh It grt
Cbaut and merchant, their factors or serTonta.
T. shIpFnd a quantlt; ot merchandise bj P. to
Olbraltar. who on arriving there placed the Rooda
In tbe handa ot S., and received adrancea from B.
upon them. In 1S2G. S, Bold tbe goods and trans-
mitted an acrount sales, aa ot the merchandlan re-
■ ■ ■ " - T., who received It In Bepteraher,
... hfllance of the proceeds to he two
hundred and aeventj-elgbt dollara.
T. In IBM wrote to 8., directing him to remit the
■mount to bim, deducting one thousand dollars.
which bad been advanced 1); 3. on tbe gooda, aud
which bad been remitted by P. to T. B. refuaed to
make the remittance, alleging that P. was largelr
Indebted to him. No auTt was Instituted by T.
against S. until Angust, 1834. The accoant waa a
stated account, and tbe atatute ot limitations ap-
plied to It.
The mere rendering an account does not make It
a stated account, but If the other party recelvea it
admits the correctness of the Items, claims tbe tinl-
■nee. or oners to pay It. aa It may be in bis favor
or agalnBl him, then It becomes a stated seesunt.
It la not at all Important that the account waa not
made out betweeu the plalntilT and (he defendant;
the plnlntllC having received it. having made no
the ci
impl.li
e tten
r the
adopted It, and by hia e
iped merchandlae ,.
. put tbe goodi Into t
and received an advance npon (hem. S.
■old tbe merchandise, rendered an account
■ale*, atating tbe sales to have been mi
•rder ot P,. and eredltlni the proceeds In ■
lVff4
0 ttoluDda«(lt
It aa T. had ■ rigbt In 181(6 tL ._..
at. and as no tolt was Inatltuted ■nlnid i. o-
~ ■ ni ■!«■;■ denied hi* IlaUlttTtsT.
of the aalea, from tbe time tt a»
ot'eaMntun!
. jnl
til 1S34, 3. harlni alwaya denied hi* Itab
for the ■mount of the aalea, from — "
demand, the atatale of Itmltatiooa
action Ic .
Tbe elTect and nature of an ■ren
put in by a delendast, when It I* n
Where tbe Items of ■n account atated were Sat
disputed, but wer« admitted, and payment ot iW
■ome demanded, it wib not taking the qutstloa at
tact wbether the account waa a stated aeoaai
from the Jury, for tbe court
that the aceouE
a ilated *>
EKROR to Um Qreult Court of the ['ttl
United SUte* for th« Eaatera Diatriet d
Pennii^tvaiiia.
This action waa commenced on the flftk dtj
of Au^st, 1834, hj the piaintiB in eiror. Iff
proces* of fareien attachment, in the Omit
Court for the £astem District of Penw^-
vania. The irrit of attochmeat aUted tk
defendant, Horatio Sprague, to be a citixen tl
the State of MaaiachuHetts, and the p'siniil
to be a citizen of the State of Pennsylvania
The attachment was terred on the propertj «(
the defendant on the eizth day of Aunrt.
1834, in tbe handa of Mr. John M'Cre«, Mr. S.
Brown, and Mr, P. Lagtw, residenta in tk
citf of Philadelphia. At the following teia
of the Circuit Court the counael for ue is-
feiidant moved to quash tbe attachment, whiA
motion waa overruled by the court.
The record ahowed that Horatio Spr*;ift
although atated to be a citizen of the State d
Maaaachu setts, waa at the time of the com-
mencement of the auit, and for aomc year* be-
fore, had been a resident at Gibraltar, wbol
he was extensively engaged as a men-baaL
The defendant entered special bail to tbe at-
tach ment, and having appeared and pteaiM
to the tame, the case was tried by a jury <■
the twenty-flrst day ot November, 1B36, and i
verdict, under the charge of the Circuit Cimt,
was rendered for the defendant, on which *
judgment waa entered by the court.
The plaintiff at the trial took a bill of escct'
tion* to tbe charge of the court, atatinc in fw
all the evidence given to the jury in the eata
The plaintiff proBecuted thia writ of error.
The plaintiff declared in assumpsit, on thrM
counts against the defendant: First, chargiaf
the delivery of certain articles of tnerchandiie-
upon a promise to account and pay over iV
proceeds of the sale of the samei alleging aialt
thereof by the defendant, and a breach of pn*'
ise, In not paying or accounting for the ■■■(.
Second, a count in indebltatui aasunipsiti aid
third, on an account atated. The third coot
wQi afterwards, on the application of tk
plaintiff to the court, atnick out of the dc^fsn- I
tion. The defendant pleaded the j^neral ■*-
■ue, and also the statute of limitations. Tk :
plaintiff replied that, at the time of tbe traM- I
actions with the defendant in which this nt
was brought, the defendant waa k mer^kait
and the ^ctor of the p'aintiff, and '
laration mentioned, of tbe said R«nry: i>'
he mercbandiaed and m»de profit "of ['>•*
Peter* I*-
Toun V. Svuoim.
for tke mM Henry, and ta render » reuonaUe
a«eouiit to the a^d Benrj, whea he, the eaJd
Ilorktlo, should be thrretinto tftcrwnrds re-
quired; and that the laid mnnfy, In the said
■•Vfral promiaei and undertakingi in the said
daclaration mentioned, became due and paj-
ftbl* oa trade had between the said Homtio and
tk* M^ Henrv, aa merchants and merchant
■ad factor, and wholly concerned the trade
Berohudlse between him, the laid Henry, aa
A merehMit, and the said Horatio a* a mer-
chaat and factor of him, the said Henry, to
wit, at the district aforesaid: and the said
Hniry further says that no accotint or accounts
whatever of the said money, goods and mer-
ehandiae, in the said declaration mentioned, or
fttiy part thereof, waa, or were ever stated, sct-
tled, or adjusted between him the *aid Henry."
To this replication the defendiint rejoined,
vtAting that he was not the factoi of the plain-
ttff, nor did the said money, in the said several
■nppoaed promiaea and undertolcings in the
■■id declaration mentioned, become due and
payable in trade had between the said Horatio
Blague and the plaintiff, aa merchant and
■HTchant and factor, in mannn and form as
tluplaiuttff had alle^.
The bill of exceptions set ont at large the
■videaee given on the trial of the causa. "
omslBted of a letter, dated Philadelphia, I
tamber E5, IS24, from the plaintiff to Cliarles
Vattit, by which certain goods and merchan-
dlae, the property of the plaintiff, shipped on
board of the William Penn, bound to Gibral-
tar, was consigned to him for sale, and stating
ibm manner in which returns for the same were
ta be made; letters from Chartet Pettit to the
^■Intiff, relative to the shipment, and a state-
Bi«nt of remittancea made to him by Chartea
Pettit, with an account salea of some of the
^MTchandise; also two bills of exchange, one
for five hundred and thirty dollars seventeen
•MBta, the amount of the proeeeda of sales of
«l«Teii hogaheads of tobacco, and a hill of ei-
ehaam for ona thousand dollars, both drawn
1^ Horatio Sprague, the defendant, on persons
in Uia United Statea, to the order of Charles
Fattit, and by him indorsed to the plaintiff-
Br a letter from Charlea Pettit to the plain-
tiff, date at OlbnlUr, December, 1S24, after
emnmunieating the salea of the eleven hogs-
haada of tobacco, and the inclosure of the
Ulla, and stating that the bill for one thousand
dollars was to be considered aa an advance on
his shipment, be informed the plainti?:
*1 shall sail from this to-morrow, in the ship
Wniiam Penn, for Savannah, and hcve left
thm following mstructiooB with my friend, Mr.
>04'] *S[)rague, regari^ng your property
I«n (^ me in his haniL: "With respect to the
gmpowder tea, caasia, and crape dresses,
■Unied by Henry Toland, yon wiil pleaae to
dtepoaa of them aa you may think most for the
Intaraat of tbe ahipper, and remit the amount
to Uh In Mils on the United States, forwarding
m* aooount of sales of the same.' "
By ■ lett«r addreased by Oharlea Pettit to
tbo dafeudant, Hr. Sprague, written at Gib-
raltar OB the IBth December, 1825, he aays,
■■flog other thingai
"97 yonr a«aaunt rarToit rendered tbis day,
ft bakiua itanda agalnat me of Ave thousand
It« inmint aad mtmAj-bm dollara tUrty-
one eenta; to meet whieb you have h yav
poaaeBsion Ave hundred and fifty barrelianpw-
flnc flour, on my aeconnt entire, my half in-
terest of three hundred and seventy-two bar-
rels flour; an invoice of crapes, etc., amount-
ing to two thousand and twenty dollars; one
hundred ten-catty boxes gunpowder tea; flva
hundred bundles eaasia; and two cases super
satin Mandarin crape dresses, containing one
hundred and one di'essea.
"With respect to the gunpowder tea, cassia,
and crape dresses, shipped by H. Toland, yon
will be pleased to dispose of them as you may
think most for the interest of the shipper, and
remit tbe amount to him in a bill on the United
States; forwarding ne account saiea of tbe
On the eth of January, 1S2S, the platnUff
wrote to the defendant, from Philadelphia, "1
am expecting soon to hear the result of my
shipment by the William Penn, and hoping It
wifl be favorable."
On the 22d Pebmary. 1826, the plaintiff ad-
dressed the following tetter to the defendant!
"Philade:phia, February 22, 1825.
"Hr. Horatio Sprague, Oibrsltar.
Tear Sir: By the ship William Penn, I eon-
signed to Mr. Charles Pettit 100 boxes gun-
SDwder tea, a quantity of cassia, 11 hogsheads
.entueky tobanco, and 2 canes Mandarin roba*.
I directed Mr. Pettit to make the returns of
this shipment Immedistely on hta arrival at
Gibraltar, aa follows: If quicksilver could be
had at forty cents, then the whole amount tn
said article; if not, to ahip the. whole amount
in dollars, by the flrat vessel for this port, or
New Tork; or if good bills of the United
States could be had on more favorable tarms
for a remittance, then to make the return In
bills. Mr. Pettit promised a atrict compliance
with all these things; but, since the sailing
*of the William Penn from this port, [*30S
I have never received a line from him. I have
heard of his arrival in Savannah, and of hia
proceedin); to Charleston; but I have not yet
been favored with a single letter from bim.
"As my property may be left In your hand*
by him, unsold, I beg of you to fallow the di-
rections given to him, as herein detailed, and
make the remittance direct to me, I have
particularly to beg your attention to this mat-
ter, and to remit as early aa possible."
The bill of exceptions also contained letters
from the defendant to the plaintiff, written at
OibrsHnr, commencing on the 18th January,
1826, to Pebmary 22, 1RZ7, and other corre-
spondence of the plaintiff with the defendant,
up to an anterior date.
of the shipment made to Charlea Pettit, de-
ducting the two bills of cTchange — one for five
hundred and thirty dollars seventeen cents, and
tbe other for one thousand dollars, the balance
of the sales being one thousand live huudi^
and seventy -nine dollars.
The letter from the defendant to the plaintiff,
of the I6th .January, 1826, informs the p'ain-
tiff "that Charles Pettit had left Gibraltar on
the lOth of Deeembrr, and had placed in hi*
hands, ior sale for his account, an invoice of
gunpowder tea, casiiia, and crape dresses, with
directiona to dispose of them aa ba may }udge
1*M
MB SuFBiuE Court or t
■uMt for hia iiit«reati vhich shall hare my best
■tteotion.
Lett«rs written aflerwardB inform the pli
tiff of the Sttite of the miirkota at (libralLiLr.
on the Tth of June, ISib, the defemlnnt wi
to the plaintiff, "1 bsve closed the suie* of tbe
enpes and eaBBia, left hy Mr. Pettit some time
■tnM and settled hia account."
Od bein^ informed by the plaintiff that he
WB* held liable to him for tbe proceed* of the
■hlpment per the William Penn, the defendant
adorctsed the foUowing letter to the plaintiff:
'■Gibraltar, October M, 1825.
"Dear Sirt I have just received jour letter of
12th September, which I hasten to reply to. It
would appear by your letter that Mr. Pettit'
agency here wat not bo full ae his own instruc
tions to me gave me to expect. The property
K-hich he has brought snd consigned to me at
various times has ever been delivered over to
me with invoices, in his own name; and I have
ever been punctilious in following his
tions, sometimes in remittioK to one, ao
S06*] 'to another, and on which property I
always ready, and at various times did advance
sums of money, but hot* be, Mr. Pettit, appropria-
rpdthisraoney.itwasnot my province to inquire;
he might have remitted it to you or anyone else.
Her* follows the other part of his instructions
of the date of the IBth of December, which
you appear to have overlooked, but which must
■ntsblish in your mind the nature of Mr.
Pettit's transactions here. Had you have con-
signed your property to me, inn lead of Mr.
Pettit, I should then have been accountable to
you,' but it cannot be expected that I am to
guaranty the conduct of your agent, who
always is accounlab'e to you for his conduct.
Here follows the extract of bis order of ISth
December, 1824; 'By your account current,
rendered this dsy, a hRlance stands against me
of Ave thoi-SHnd Ave hundred and seventy-four
dollan and thirty-one cents i to mret which, you
have in your possession five hundred and fifty
barrela of superfine flour, on my account entire,
my half intereat of three hundred and aeventy-
two barrels of flour, and invoice of crapes, etc.,
amounting to two thousand and twenty dollars,
one hundred ten -catty boxes gunpowder tea,
Ave hundred bundles cassia, and two cases
superior aatin Mandarin crape dresses, contain-
ing one hundred and one dresses,' etc.," etc
This parafjraph, I repeat, cannot but con-
vinco you that all my advances to Mr. Pettit
were on the various property which he placed
in my hands for sale. It is very true I corre-
sponded with your good self on the subject of
the articles which you intrusted to the msno^-
ment of Mr. Pettit; and it is no less true, 1 diil
the same with him, and from time to time
promiaed him account; which I never did to
yon; and, until his last visit bo this, did not
close the sales of the articles, when, at hia partic-
ular request, closed every account before he
left thi*. This explanation, I trust, will prove
*atisfactory, so much so, that I may continue to
enjoy your confldence."
The letter of the plaintiff of Philadelphia.
January 4th, 18S0, repeats and insists on the
liability of the defendant to him; to which the
defaitdatit gave the following reply:
"Gibraltar, Febniarr 10, 182B.
"Dear Sir: I am thi* moment in receipt •(
■•se
'j> EjTATu. m
your letter «f 4th ultimo, per CharlM, ■*<
from your reference to my letter of 18tli Jra-
uary. 1B2S. have looked into the aame. nat I
was awarp the property handed over U> mehj
Mr. Pettit did nut belong to himself theie is m
question; but on what terma you and otheir
consigned it *to him, ia not tor me to [*tl1
inquire. On hia arrival, he aubmitted to aw
invoices of several ahipmanta, required sd-
vances, and gave orders for aales; and cm hia
leaving this, as you may suppoae, directed me
to correspond with the different shippers by
him; which, in my opinion, was very proper,
and could not in the faintest degree lessen my
claim to the property, on which I had msdt
liberal, yes, more than libiTsI advani^ea: so
much BO, that Mr. Pettit ia over two thotisaDl
dollars my debtor: yet so particularly desiroia
•m I to satisfy your mind, as I am in poises-
sion of all the original papers, letters, etc., con-
nected with the business, I have no hesitalio*
in submitting the question to any two respect-
able merchants here, one to be appointed hj
fou, the other by myself, and to their dedsio*
shall most readily subscribe; or if yau are
willing to leave the business to me, I will sub-
mit every pnper to (wo disinterested mpn-hanU
and they shrill address yuu on the subjvHTt. anl
the afTflir sliall be aetlled to our sstisfaclion.
"Herewith duplicate of my respi»rt8 of 2>Si
ultimo, since which I have delivered a p.trt el
your hyson skin tea, at three and a half rials
per pound. This parcel has been sold off, inl
if no complaints of its quality be made hen-
after I shall be glad."
The bill of exceptions also contained • nnn-
ber of account* sales of merchandise made 1^
the defendant, by order of Charles Pettit; and
accounta current with him. commencing it
1S22. The only account which was the *nb-
ject of notice in the charge of the Circuit Coarl
was one daUd at Gibraltar, ,lune 30, IS3S, ef
the property of the pIsintifT left in thehandacl
the defendant on the 18th Drcpmbtr. IWl
This was an account sales, showlnj^ a balaiK*
of two thousand five hundred and seventy -eight
dollars and eleven eenis. The sfcount s^a
was stated to bei
"Sales of merchandise received 3d NoTen-
ber. 1824, ex ship William Penn, William Wert
master, from Philadelphia, by order of Mr.
Charles Pettit, for account and risk of the MM-
cerned, per Horatio Sprague, Gibraltar.
"Gibraltar, ,Iune 30, 1825-
By the account current between the drfrnd-
It and Charlea Pettit, dated "July 8, IRSi,"
which credit was given for the net procer<b
of the Bglea of June 30, 182G, a balxnev ap-
^csrrd to be due from Charles Pettit to tb« de-
Fi'nctitnt, of one thoii<nnd four hundred and U
dollars and cenls.
The bill of exceptions contained noothme-
count in which the 'sales of the ship- T'Stl
ment mnde by the plaintiff by the Wcltia*
Penn were stated; nor did It contain anT ac-
count rendered by the defendant to the plaiatif,
relating thereto.
The Circuit Court charged the jury:
Thnt tberft being a plea of the statute •!
limitation, the plaintiff must by his replirstiaa
bring himself within the exception conrm '
merchants' accounts in the said statute, or m
" To b* within the i ■
Toumi V. Snjum.
miut ba a,a open uid running ftccount, And
miut ba (uch for which mi action of bc-
count would lie) and muit be between mar-
chwnt »nd merchuit, their fketora or serruitB,
not marely betwesa tfaoM who hold their g
twder kit obligation to account.
Hera the plaintiff claimed one thonaand fire
kundred and aeventjr-nina dollar*, the balance
of aales of property, aa per account uJea June
SO, 182E, amounting to two thou«and five hun-
drad and aeventy-iune dollars. Credit by one
tbouund dollara— Bill on Pearaon. The plain-
tiff and defendant agree in the amount of aalei,
and no item ia objected to.
Thus far the account is a atated one, not
being objected to for ten yeara; if any balanoa
ia due, it ii ascertained by mutual content.
There ii no mutual account between them,
Bor an open one, and there can be no new ac-
count open between them. The contest doea not
depend on an account, but on who has a right
to a liquidated balance, admitted by defend
•Bt to b« in hia hands aa the proceeds of plain-
tiff's property; plaintiff claima it ae kit own, the
defendant claima to apply it lo a debt dua by
FMtit.
On the pleadinga, the queation is not who
haa a right to the money; but whethar plain-
tiff ia not barred by the atatuta.
The plaintiff had not made out a ease which
axempta him from the itatute. If Spragtic had
randercd the account salea to the plaintiff, and
admitted the balance to be payable to him, that
would not bring plaintiff within the exception.
The plaintilT had a complete right of action,
on demand of a settled balance, and ha made
thfa demand in 18&B, and the etatute would then
begin to run. The plaintiff's only claim is tor
» precise balance; and thia would not have been
tbe mutual open account current between mer-
ebant and merchant, eoDcemlng the trade of
merchandiee between plaintiff and defendant.
Tt did not become so In' defendant claiming to
retain the balance for Pettft'i debt, nor did it
sot*] change the 'nature of tbe traiisaction,
«r make the cauae more a matter of account
than if he admitted the plaintiff's right to It
The only question ta, who is entitled to the
a plaintiff,
he haa failed in making out hit replication aa
matter of law; it waa not a oaae of tnut, not
embraced by itatnta.
Taking the account, then, aa one where de-
fendant was factor for pl^ntiff, bound to ac-
Mnuit tc him and pay nim the balance, and
havine no authority to apply the proceeds to
Pettit's debt, and plaintiff not bound by receipt
«f one tbonaand dollan; the nature of the
CrsnaactloD does not bring It within the excep-
tion, being for a liqnidaM balance admitted;
aod by the correspond enee between the parties,
tbo controversy brought to a contest lor the
balance, this can be an execptioB only on the
growid of merchants being prlTllegea eharac-
t«rn.
The eorrespondenee between the parties, so
long ago aa early in the year 1K6, shows that
Cbo f|neatioB between them was not about the
aoMNttt, or any Item in It, but on the right of
Mr. Bunmam to ntain tha adaitted balanca to
• !*•«.
r^ay tbe advaneea h» mida to Pettit; that waa
the only question In dispute between lhem,aBd
it Is the only one now, and has so continued
for more than ten years.
This yiew makes it unnecessary to eonsidar
the other interesting questions as to the power*
of agents, factors, aupercargoea, pledging, and
of sub-agents; the jury are to take the direc-
tion of the court in the queation, which is a
matter of law, and so left the same to the jury.
was argued by Gilpin and Mr.
Hare for tbe plaintiff in error, and by Hr. Oar-
hard, with whom was Mr. Coze, for the defend-
ant.
For the plaintiff, the following errora were
assigned:
1. That the court charged the Jury upon an
issue which not only did not appear upon, but
was excluded by the pleadings; upon wl)icb
the cause was not tried, and which waa not
raised by any of the counsel in argument.
2. That whether any demand for an account
had erer been made by plaintiff upon defend-
ant; whether any account had ever been ren-
dered by defendant to plaintiff, and whether
any account was an account stated between
plaintiff and defendant, were alt questione for
*the jury, and that the court erred in [*SIO
withdrawing the same from the jury and giv-
ing them a positive direction therpon.
3. That SMppoaing the questions set forth In
tbe foregoing error assigned to be for the court,
the court erred in charging the jury that, in
Joint of law, there was any demand made on
efendsnt by plaintiff for an account; that the
defendant had ever rendered an account to the
plaintiff, and that there was an account stated
between the plaintiff and the defendant, so as
to deprive the plaintiff of the benefit of the ex-
ception in the statute of limitations concerning
merchants' accounts.
4. Because the charge of the court was
against the law and the evidence.
Mr. Hare, for the plaintiff in error:
The defendant in error objects to this court's
jurisdiction as well as to that of the court below,
on the ground that he is within tbe 11th section
of tbe Judiciary Act of I7SS, which enacta
that "no civil suit shall he brought in the cir-
cuit courts against an inhabitant of the United
States by any original process, in any other dis-
trict than that whereof he is an inhabitant, or
In which he shall he found at the time of serv-
' ig tbe writ."
This question waa raised in the court below,
by means of a rule to show cause why the writ
should not be quashed, and decided against the
defendant after argument, and on affidavits,
showing that the defendant was a eitizen of
Massachusetts, and had been for more than
twenty years an inhabitant of Gibraltar.
We contend: 1. That the matter of sucb a
defense, as It ousts the court below, i
court of its jurisdiction, by reason of a per-
.1 privilege, must be duly pleaded; and It
red in the order of pleading, ii
2. That the defendant, not lipin? an inhabit-
ant of the United SInti'S, but r<'fiMin); In an-
other country, ia, therefore, not within thplllh
tction, and is lishle to foreign sttai-hniPnt.
As to the first point, the 11th section eonfera
a personal privilege which, like all other per-
~ ~ 1 exemptions, must be pleaded ; because hia
ScFREUK CoutT or THE Uitim States.
riwUetion. And »8 it is a personal privilege, it
BUT be vMTcd, in which case the coiu-t hui ju-
liMDetion. At !t la merely dilatorj, it is not to
ba fftrored. Harriton v. Rowan, 1 Peters's C,
C R. «8; Kitchen v. Wiiliameon, 4 Waah. 0.
til*] C. R. 86i *Logan v. Patricli, 6 Cranch,
288. And having pleaded in bar, he cftnnot now
nJae the queation of his privilege in thia court.
Zd. It appeared upon affidavit in the court
bdow that the defendant is not an inhabitant
of th« United States, has not be»n such for
twentj fears, but is domiciled in Gibraltar. He
b not, therefore, nithin the words or meaning
of the 11th section, which covers none but in-
hnbltants of the United States.
The Judiciary Act gives to the Circuit
Court cognizance of all suits, of a civil nature
between citizens of different Stetes,
the case of the parties to this action, or citizen
and alien. And the act to regulate
gives to the same courts the same proeesaes as
are used in the State courts of the particular
district.
The process in thia caae was a foreign attach-
ment, which is used in the State courts of
Pennsylvania. The 11th section reeti
service of process upon an inhabitant of the
United Stntta, except in bis own district, or in
that where he ia at the time of writ served.
Where a ^neral power is given, and a par-
ticular restriction afterwards imposed, the re-
striction must be construed strictly, or it may
override the power.
Here the cliaracter of the process and that of
the suit are within both acts. The queation,
then, is on the rrstrictionj but the defendant
fj not an inhabitant of the United States, Mid
therefore not within it.
The spirit of the restriction was to save in-
habitants of the United States, whether citizens
•r aliens, from a greater hardship than either
would be subjected to in the State courts; that,
BMnely, of boing called to answer in a distant
tribunal, by virtue of the general power of the
federal courts, as extending all over the Union.
But thra conaidcration cannot apply to the case
•f foreign attachment against a nonresident,
•Ince that process is used in the State courta,
and would have lain against this defendant,
and cannot lie against an inhabitant of the
Stata or district. If the attachment had issued
from the State courts, the defen<!ant might
have transferred it to the Circuit Court by the
terms of ISth section of the Judiciary Act. 3
HaiT. A MHen. 668, 557.
It baa been the practice in Pennsylvania to
issue foreign atlBchmenta from the CSrcuit
Courta against alii'ns nonresident.
The word "inhabitant" in the act does not
niaan citizen. If ao, aliens resident would be
exposed to a hardship from which citizens are
exempted. The argument for the defendant
812*] must mean that, 'because the defend-
ant is a citizen of Ma saachu setts, he ia therefore
an inhabitant of the United States; that is, that
Inhabitant and citizen are the same thing. In
some casea. it ia true, the residence of a ett-
iien of the United States within the United
States determines of what State he is a eititen,
aa to the question of jurisdiction of the United
SUtM courts, aa In Cooper *. Oalbraith, S
Wash. CM; Bnller ». Famwortfc, 4 W^.
101. But in this case the citizen of the Oidlsd
States is an Inhabitant of another ccHintr;. Hi
is not thereby devested of hia dtixeMUf,
which signifies his political relation*, and docs
not depend on his will. 2 Cranch, 8i8; n*
United States v. Gillies, 1 Peters'* a C R. W;
* Tuck. Blackst. 101 ; 4 Am. I^w Joonl,
482: S Cranch, ISO; 8 T. R. 46; Hale's Com.
Law, 184; VatUl, 1S2, 818. But he ia apt u
inhabitant of the United States; he ia anch <i
another country, and he f* to be denJt with is
such in a question of Jurisdiction in this cant.
2 Peters, 450; 2 Bob. Adm. Rep. 287; I Rah.
Adm. Rep. 23; 2 Boa. ft Pull. 229; 1 Kia.
3G1. And if foreign attachment wID Bt
against an alien nonreaident of thia emmtiy,
there ia no reason why it should not lie agaiak
a dtizen nonresident.
If pleaded that he was an inhabitatnt of tks
United States, and issue had been jmned, tW
rerdlct must have been that he waa not an ii-
habitant; and if so found, there ia notMnf tt
take away the Jurisdictiou of the Circuit Comt
The first error is that the conirt charged ifv
an issue not only not appearing upon, hut eaa-
eluded by the pleadings.
The charge of the coiirt aaaumea that tkm
had been an account stated between tha plait
tllT and defendant. None was allegad at Ikt
trial. The action waa for the proceed* o( a
shipment placed in the handa of Che tJMeadatf
by the plaintiff's agent. Hie merits wen Mt
noticed In the charge of the court, and an
therefore not material. The atatnte of Hmits-
tions was not relied on by the counsel for tkt
defendant at the trial. The eauae waa trial
upon the issues, and we contend the efaarp
was upon what waa not in iaaue.
The declaration eontaina twii
t; viz., on an account stated; which wai
struck out before the replication, upon ■ rah
granted by the court. The defendant plca4sJ
an assumpsit and the statute of limitaitiMib
hich, in Pennsylvania, by a defect of leps<
ition, does not save the right of th« plaiaof
against an absent defendant.
'The plaintiff took issue on the first (*9I1
plea; and to the second, replied, the execptiM
in the statute concerning merchants' aJ.owiaH
and alleged In it that no account had ever b«M
rendered or stated between the parties. God-
frey V. Saunders, 1 Wlls. 79; 1 Biutbm,
3!7, Se7, 658; B Serg. ft Rawle, S93. It
being a construction of thia exception that It
does not include accounts stated, ft waa proptf
to allege tfaey were not atated.
The defendant rejoined that plain tUT and 4>-
fendant were not merchanti, cto^ It sdiBit**^
therefore, there was no aeoonnt at«ted, a* ft
did not deny it; for whatever la traTeraa.Ua aal
not traversed, 1* admitted. 2 Starkie'a BV-
82; Stephen on Pleading, 26S, US; AppaaiOL
44, 64. The rerdlct. if stated at large •* tls
record, would hav* been that the paitiea wna
merchants, which, aa a fact, waa not doabtai
If stated at large, "under Uie directioa of tla
court," aa expressed in the record to have he«
found, it must have been that thera waa *■ ac-
count stated between the parties. Bat it is a
rule that a vardlot cannot eontradtat the ia^
18M
ToLUtD <r. SraAom.
nor admliaioiu in the pleading*, 5 Bm. Abr.
322; 2 Mod. 6; 2 Ld. Baym. 864. The learned
judge, thRTefore, clearly erred when he charged
the Jury that the question in the plendings
war whether an account had or had not been
Btated, since auch k verdict would have been a
Upon the issue, the plaintiff proved the
amount owing to htm by the written admiBsion
of the defendant, which admisaion did not in-
clude the right of the plaintiff to that amount.
If the rejoinder had been that there waa an ac-
count stated, bia course would have been dif-
ferent, and it would have lain on the de-
fmdant to prove ench an aorount; which at-
tempt, if it failed, would have destroyed his
defense on the merits.
The second error assigned is, that the i<aurl
took ai^ay from the jury the question whethisi'
there waa or was not an account stated and
charged positively that a particular puper was
not such.
The replication denied an account Ktatedj the
rejoinder admittr:! there wes nanr, and none
was alleged or pro luceJ in evidence. Tlie
plaintiff was entitled to be heard against the
construction of any paper, as such account.
The court chargi-d that (he ncr-oimt aalcs of
June 30th, 1823, was an account stated between
the parties; and did not state that that account
was not sent by defendant to plaintiff, but was
given by defendant to Pettit, who was not then
the p'ointiff's agent; that the defendant always
denied his liability to ai-tount lo tlie plaintiff
S14'] •andn/Teeted to treat Pettit as the own-
er of the goods; and thnt the account was given
by Pettit to the plaintiff, as showing what dis-
position he had tnadu of the goods. We con-
tend that this was not an account stated, in
point of fact, and tliut the jury wore the judges
of the character of the pnpnr; for it was not a
question of the construction of a paper, nor of
the meaning of a phrase; but of a fact, wheth-
er this paper was sent, and rcei'ived as an ac-
count stated; and it waR f matter of argument
to the jury whether an account sales can be, in
any case, an account stated, inoamueh as it
shows no balance betuucn Lhe parties; and
whether the refusal uf the Lcfcndont to actourt,
and his allegation that he had never intended
to account with plaintiff, did not destroy the
character which the court gave to this paper aa
an account stated.
The third error assigned is that the court as-
sumed and charged that there waa an account
stated between the parties.
Supposing that the issue had been on the al-
legation that no account was stated, and that
the decision of any paper produced as such, be-
longed to the court— we contend that nothing
was produced in evidence which deserved that
character in iaw or fact, so aa to bar the plain-
tiff of the exception in the statute of limita-
tions concerning merchants' accounts.
What are alleged as constituting the account
stated are a deround by the plaintiff on defend-
ant for a apeciflc sum, ivhicn he had incident-
ally learned from a third person was the pro-
ceeds of his goods, and the account salsa which
contained that amount.
We agree that if accounts between merchants
are stated, they are within the statute. 1
\'entr. 89: Huil- BSCj 1 Mod. 269; and cases
> Ih ed.
refemd to In Wllkiiuon on Limit. 10, at aeq.;
Blanchard on Limit. 88, at seq. And further,
that in accounts between otbera than merchants,
or since Spring v. Craig's Ex'rs, 6 Peters, 161 ;
6 Term Rep. 193, if between merchants, and
not concerning the tralGc of merchants, to bar
the statute, an item must be within six years.
We contend that open accounts between mer-
chants are within the exception; and further,
that accounts closed by cessation of dealingh
are open accounts; but the pleadings must stale
accounts to be open. 1 Saunders's Rep. 127;
fl Term Rep. 193; 6 Cranch, IB; 2 DaU. 204;
2 Yeates, 106; S Johns. C. R. 62D; 19 Vea.
ISO; Blanchard oa Limit, 89.
The accounts must consist of more than one
item, and of more 'than one trunsac- ['SIR
tion: and muat, in general, contain mutual
crediLs; hut not as between merchant and fac-
tor; for there the course of trade may be that
the factor has only to receive and dispose of
Iha goods and remit their proceeds. Between
a merchant and his factor tliere can be no re.
liprncal dfmnndfi in b'lvir^ r.nd selling, such
as c-iist between mer. h. nt tind mcr.-hant. A
stated account is a clear statement of accounts,
juBtiRed by signatures, as exhibiting approba-
tion (2 Young ou In.oices, 87); none such ia
pretended. An account current may become an
account stated by the silence of the party re-
ceiving it. 2 Vem. 76; 2 Ves. Sen. 23!l.
But as soon as the plaintiff here learned that
the defendant had sold his goods, he demanded
the proceeds. The defendant refused them,
claiming to b^ entitled to them; he refused to
BcknowledgE the plaintiff as owner, or to ac-
count with him; he did not send him account
sales; be made up, three years after this trans.
action, an account which contained no item
of it; and he admits in the pleadings and on
the trial, that he never has stated an account
with him. If an account had never been stated,
it is impossible to sbt that the plaintiff did
not object to it. He claimed an amount which
he learned vr»* the proceeds of bis goods; the
defendant retained it, and the plaintiff objected
to his retaining it. He could not do more.
The t^ourt therefore erred in saying tbsttheac.
.umt had been unobjected to for ten years,
and erred equally in saying that it was for the
plaintiff to make out his replication that no ac-
count had been stated — an allegation which, if
admitted (as it was), waa beyond dispute, and it
denied, put the burden on the defendant, the
plaintiff asserting a negative, the defendant an
affirmative. No account stated was or is pre-
tended on behalf of the defendant. None was
alleged or produced. Nor, under the plead-
ings, was any sdmiBsible in evidence. The
fact that the plaintiff had in his possession the
account sales of his goods, did not conclude him
from asserting liis rigtit to the proceeds, even If
it concluded him from disputing the amount-
It was, in any sense, no more than accidental
knowledge; and not being communicated to
him by the defendant, cannot be said to consti-
tute an account stated, between tba plaintiff
and defendant.
Mr. Gerhard, for the defendant.
It becomes the duty of the counsel for the
defendant in error, not only to utnintaln that
the errors assigned by the plaintiff cannot bt
sustained, but further to show that if the plain-
318
iiuHuuK CDDit or TOt Unrm StAm.
IM
Uld DT
Kverul o[ ttie judgment of the Circuit Court,
that, from a Wftnt of jurisdictioii, this court
ought not to award a venire de novo. Bing-
ham T. Cabot, 3 Dall. IS; Ketland v. T^e Cns
■iua, 2 Dalt. 3Q8. Tbe Circuit Court had no
JuriBdiction of tbie cauae, bpcause:
1. The circuit courts of the United SUtea
have no jurisdiction out of their reipective dia-
tricta, and hence no foreign attachment will
lie in a Circuit Court of the United States,
2. The Judiciary Act of 1TS9, in expresa
terms, forbids the exercise of jurisdiction aa-
8UB)ed in this ease b; the Grcuit Court.
Ut. The circuit courts of the United States
have no jurisdiction of actions of foreign at-
tacbment.
An action of foreign attacbment is in direct
contravention of llic priocipleg of the common
Ian, and in every Htate in which the action
will lie, it depends for its shape and character
and proceedings upon the statutes of that State.
Hereafter it will be neccBsary to notice, more
particularly, the Pennaytvania action of foreign
attachment. It is sufficient at present to say
that in Pennsylvania it is a niode of commenc-
ing actions against a debtor who is not a reai-
(lent of the State, nor at the time the attach-
ment issued, within the bounds of the State.
Serg. on Attach. 66, 61. Now, certainly it
would aeem, until Congress shall give the fed-
eral courta power to exercise jurisdiction over
persona out of the districts to which their juria-
dictions are respectively confined by their very
constitution, that no Slate law like this can be
recognized in a federal court, and such is
the deliberate opinion of one of the judges
of this court. Piquet t. Swan, S Mason, 30,
41, 48, 60; Z Dall. 306. If this position
be correct, then the case must be dismissed^
for the record shows the nature of the ac-
tion and of the service of the writ; and the
lawB of Pennsylvania which are of judicial cog-
nizance, prove that the defendant could not
have been within the State at the time of the
service of the process, even if the return of the
marshal had been less explicit,
2d. The Judiciary Act of 1789, in ezpreaa
terms, forbids tbe exercise of jurisdiction as-
Bumcd in tliJa case by the Circuit Court. Sec-
tion eleven points out the jurisdiction of the
circuit courts of the United Slates, and then
proceeds: "But no person shall be arrested in
one district for trial in another, and any civil
action, before a circuit or district court. And
no civil suit ahall be brought before
•aid courts against an inhabitant of the United
«17*] States, by any original 'proces* in any
other district than that whereof he is an in-
habitant, or in which he shall l>e found at the
time of serving the writ."
As it has been decided by this court that thii
provision merely confers a personal privilepi
on the defendant, which be may waive, it wil
be my elTort to show, first, that the defendant
has not waived his privilege, if he have any;
and, second, that the defendant is entitled to
the privilege secured by this provision; that
this suit violetsB tbst privilege, and that the
record shows both the privilege and the viola-
Uon.
1. The defendant has not waived bis privl-
kge. if be have an;.
To maintain this, it will be necessary to «■
nine Into the Tiature of the Pennsylraait
action of foreign attachment, and this will be
done ae brioHy as possible. As has been at-
idy stated, it is a mode of conuutncing
:tons against a debtor who is not a, resideni
of the State, nor, at the lime the attachment
issued, within the bounds of tbe State. Sef^.
1 Attach. 66, 61.
The defendant in the attachment cannot put
: any defense, unless he appi'ara and gives
lit to the action, and submits his person bf
> doing to the Jurisdiction of the court. Serg.
1 Attach. 131. Otherwise the court win ^vr
judgment againat him by default, at the third
term after the attachment has been issued. snJ
the plaintiff may proceed by scire facias ajninsl
the garnishee, to apply the gootis attarlied (e
the payment of his the pkiuti^s claioi. Stte
Attach. 21.
iuL if there be any irrcgiiiarity in tbe st
tachment, as if the defendant be not the sab-
ject of an attachment, for instance, if be be
within the bounds of the State, the propn-
mode of tal:ing advantage of such irregularitv
is by making a summary application to tli-
court to quash the attachment. By enterin;:
the bail to the action, the only tenne up^n
'hieh he is allowed to p'ead, he waives IIk
-regularity. Serg. on Attach. 139.
As soon as the defendant could, be ma.i'
such an application to the Cin-iiit Court. Tli
iffidavit shows, accurately, the nature of th
ipplication. The point waa argued, and all.-;
onsiderable hesitation the court decided that i
they would sustain the writ, though the dr
fendant was described in it, etc., aa a ritinn
of Massachusetts. What, then, could the dc
fendant do I An appearance in the court br
low, after that deciaion. was all that remainr-l
him; but aa the appearance was an cnfom-i
:, there is no case which decides that br
mot now claim the benefit nf the privilefT.
it he was entitled to •it originally; and [*S1«
surely there is no principle wliich would prti
duce that effect. Harrison v. I'.owan, 1 Pet. C
C. R. 4S9, is entirely up to this point, uti
shows that nothing but a voluntiiry app<-araBC(
waives the privilege of a defenrlant not to b»
sued out of his own district. There the court
go farther and say tliat yuu mny appmr is
order to plead your privilege, but they are far
from saying that you must so lake ailvani.i;:'
of this right; and a careful couM.liTatioii t,i lS«
nature of a foreign allachnient will show I'ut
whatever mijrht be the ^n^<c as to « iiuil :■
equity, a defendant in a foriign atlachmpn' ii
lot, at all events, bound to plead the privilege
n question; and it would seem to b« a ni-M*-
sary consequence that after the failure of »
summary application in the coMrt b^low Is
quash the writ for this reason, that the applica-
tion may be renewed in tlie Supreme Coort,
since the ground of the application appear* tp-
on the record,
2d. But is the defendant entitled to thi
privilege sepured by the section of thp art ii
question; doca this suit violate thnt pHvile^;
and does the record show both the privit'^
and the violation! If the defendant be aa ia-
babitant of the United States, be cleuly ha
the privilege.
t. Either the word "inbabitant* mesB* vq-
— p li
'fuLAND T. SfKASIA
DOC hIio {a linble to tli* proc^sa of the United States "that an actio* 0f foreign attaehment
BUlei courts (^equet v. Swaan, S Mason, I
«■), or,
t. It means an intiatdtant of
United Statas, L a^ tt dtiieo of
UniUd States
Xow, tbe word In question must be defined
in one of these modes, for otherwise it would
smbrace cases over which the United States
eourti have clearly no jurisdiction, Hepburn
V. EIImj, 2 Cr. 446; The Corporation of^ N
Orleam t. Winter, 1 Wheat, fll; Picquet t.
Swan, S HasoD, SO, M, SB; Rabaud r. irWolf,
1 Ptiae, SSO.
The first dcflnitioR la the more natural, for
H seems obvious that everj case was intended
to be provided forj and this construction
■upporled by high authority.
But if the first be incorrect, then tbe second
definition muet be adopted, otherwise the
phrase "iahahitaiit of the United States"
would embrace the case of a citizen of tbe
Dnited States, not a citizen of one of the United
States; which, as we have seen, are not within
tbe juTisdiction of the federal courts. Tha
literai meanin); of the words in question un-
doubtedly favor this construction of them.
Either dcrmition will, however, be fatal to
Um plaintifl's case; the first will be clearly
BO, and I proceed to show that tbe second
SIS*] 'will be no less availing to tbe defend-
ant. It has been repeatedly decided that where
the jurisdiction of the courts of the United
Stfttei depends upon the character of the
parties to the suit, that character must appear
upon the record, and that averment is one
which the plaintiff must prove. Catlett v.
Pacific Ins. Co. 1 Paine, 694; Wood r. Mann,
1 Sumner, B81. Tbe character of the parties
[• here the only foundation of jurisdiction, and
tbe plaintiff averred that the defendant was a
dtizen of Massachusetts. This appears in the
jreecipe for the writ. In the writ, and in all tha
iubseqiient proceedings; and the only founda-
,ion of the jurisdiction ol the Circuit Conrt In
Jits case is that the defendant was, at the tima
if tbe commencement of this action, a citiien
if Masaachusetts. What is the meaning ol the
rord "citiEcn" in our jurisprudence! Citisen-
bip, when spoken of in the Constitution, means
lOtbing more than residence. Cooper's Lessee
. nalbraitb, 3 Wash. C. C. R. MS; Knox v.
Ireenleaf, 4 Dall. 360. "A citizen who Is
omiciled in the enemy's country, as to his
opacity to sue Is deemed an alien enemy."
ociety, etc. T. Wheeler, 2 Qallis. ISO.
Tbe word "iiihabttaQt," in the act. Is ob-
ioiuly aynonymous with "citizen." G Mason,
>, aee, »Uo, Prentiss v. Barton, 1 Brockenb.
)0. "Inhabitant," la defined by philologists
moat by the same words as those employed
r the federal court in their definitions of
iltizenBhip" of a State. Crabb's Syn. verb,
o inhabit;" Johnson's Diet.; Webatcr's Diet,
arAa "inhabit" and "Inhabitant."
The plaintiff, then, cannot show that the de-
ndant was not an inhabitant of Massaehu-
tta, without contradicting the record, and
[a be certainly cannot be permitted to do.
ThPBf principles only conduct u« to the same
>ult as the authorities, for It has been decided
two of the circuit oourta of the United
a circuit court against a citiien of
the United States." HoDingsworth v. Adams,
2 Dall. 39fl; Picquet T. Swan, G Mason, 39.
Admitting, however, that the plaintiff is not
estopped from showing the defendant's resi-
dence to be elsewhere than in Hassochusetts,
what evidence did he faring to the contrary!
Now, will anyone contend that a citiaen of
the United States loses bis domicile by an
absence abroad in tbe service of his country!
If not, then the defendant's domicile, even ac-
cording to the nlaintiff's afSdavlt, Is still in Mas-
sachusetta; and if reference Is made to the ease
of Lazarus v. Bamett, '1 Dall. 1E3, It [*890
will be found, it is believed, that under these
circumstances, had the defendant been dorai-
ciled in Pennsylvania before he left the United
States, the action would not have been main-
tained against him in a court of the State of
Pennsylvania. For residence abroad is only
prima facie evidence of domicile. Johnson v.
Sundry articles of Merchandise, 4 Hall's Aw.
Law. Journ. 85.
But If the ptainttflT can be supposed ifi have
attained his abject, and to have shown by the
evidence which he adduced for the purpose that
the domicile of the defendant was in GihraKar
at the time of the institution of this suit, he
effectually deprives the courts of the United
States of all jurisdiction over the case; since he
would then be a cltieen of the United States,
but not a citizen of one of the United States.
To conclude the argument on this point, the
record shows that the defendant was, at the
time of the commencement of this action, a
citixen of Massachusetts; the laws which gorera
the action of foreign attachment, and make it
necessary that the defendant should be absent
from the State are tudiciallj^ cognizable; and
besides, the return of tbe writ shows that the ,
defendant was not served with the process In
the State of Pennsylvania. The defendant was
forced, by the attachment of his funds and the
decision of the court on the summary applica-
tion, to appear to the action by entering special
bail. The error is therefore apparent to this
court, and the defendant has not waived his
privilege. Should the court have any doubt
about the nature and grounds of the defend-
ant's application to quash the attachment, be
should be permitted to show to this court that
hia appearance was an involuntary one. This
waa the course pursued in Harrison v. Rowan,
1 Peters's C. 0. Rep. 48B; but had tbe record
been fully certified, there could have been no
difficulty upon this subject. If, on the other
hand, the defendant was not an inhabitant of
X^ssachusetts, then he was a citizen of the
United States, but not a citizen of one of the
United States, and the Circuit Court never had
or can have jurisdiction of the cause.
There were two issues tried by the same ]u^,
vit., one an issue on the plea of non assumpsit,
and the other on the plea of the statute of lim-
itations. Both were found for the defendant,
"under the direction of the court."
It ia complained that there waa error In the
charge of the judge upon the issue of the stat-
ute of limitations. It it should be granted, for
the sake of argument, that there was, yet bow
does this affect the 'plaintiffr Bven if ['391
a verdict had baan found for hln, judgment
^ ItOl
HI
SUPBKMI CuUMl
■nit have been given for the defendant, on the
flnding of the jury on tlie other iaaue. There
k no error auggeat«d in the jud^e'* dlrectiomi
to the Jury, under the general iiaue; for the
■tfttiite of limitationa could not have been given
in evidence under the general itaue, and any
charge of the court upon the effect of the stat-
ute was, of coune, iiiapplicable to that icaue.
The error, therefore, if it were material, haa
become imniaterial by the finding of the jury
m the other iaeue. No court reveraei for im-
niaterial erron. If thii court should reverse
the judgment in thia caae, what will they do
with the verdict on the general iaaue! Will they
grant a venire da novo as to that also, when no
error aa to it is suggeatedl It is true the Jurv
have added a clause to the verdict, from wnicti
it appears that they found for the defendant,
"unaer the direction of the court." But this
la no port of Ibe verdict, it is mere surplusage,
and it haa no legal effect. Nor does it appear
that they allude to the supposed erroneous part
of the judge's charge.
The defendant, however, deniea that there it
that the judge's charge was in itself
the issue aa to the statute of limitations actually
under trial, and it is said that the onlv point
put in issue by the rejoinder was whetner the
plaintiff and defendant vtood in the relation of
merchant and factor; and that the rejoinder
admitted that no account had been settled by
passing that allegation in the replication, and
taking iasue upon the existence of the relation
of merchant and factor.
Is this sol The plaintiff, in his replication,
not only states that the action was founded
upon accounts between merchant and factor,
but also that no account had been stated or set-
tled between the parties; and the whole of thia
matter was necessary to oonstitute a good reply
to the defendant's plea. 6 Cranch, IS; 2 Couj.
Eep. 176; Spring v. Gray, 6 Peters, 161; Stilea
r. Donaldson, 2 Dall. 264. If, then, that was
a Bini;le proposition of defense, when we denied
that "those sums of money became payable in
trade bad between merchant and merchant
and factor, etc., in manner and form, etc.."
aa the replication allejfed, we denied the
whole proposition of defense; and the ques-
tion whether an account had been settled im-
mediately arose and waa passed upon by the
Jury. If thib waa not the case, the issue
of the plaintiff, then the account rendered to
Pettit is an account stated. Both admit the
foot of that account to be the amount in con
troversy.
Mr. Gilpin, for the plaintiff.
The facts involved are few, and not disputed.
In S<iitember, 1824, Benry Toland, a citr
Tbey were consigned to Pettit, the supercargo.
Part were sold there t^ him, and one thousand
dollars of the proceeds remitted to Toland.
When Pettit left Gibraltar, in December, he
>laeed the remaindsr of these goods, with those
if other peraons, im Um handa «t Horatio
S^ague, a citizen of Massaehuselta, then sad
still resident in Gibraltar, with instructions 1*
sell tbem and account therefor to Toland. Ha
corresponded with the latter accordingly, up to
the following Juna; when, on a settleauit
made between Pettit and Sprague, at Gilxaltar
of their own affaira, it appeared that the toracf
was largely indebted to the latter; who, there-
upon, psaaed the proceeds of the goods, amonat-
ing to one thousand Ave hundred and sevens-
nine dollars and eleven cents, to Pettit's eredlt
in their account, and so wrote to Toland. Ho
account was furnished to the latter; but in the
month of September, 1S2S, he saw, in the pa-
session of Pettit, a general account of sales
from Sprague, in which this item was em-
braced, and he thereupon demanded paymmt
of it from Sprague. This waa refused; sad
thougli the commercial dealings and aocounla
between them continued for several years, pay-
ment of this sum never was obtained- In Aa-
gust, 1834, finding some property of Bpragn^
in Pennsylvania, the plaintiff Toland cob-
menced a suit by foreign attachment, in tbs
Circmt Court of the United SUtea for that di>-
trict.
It is now objected that the court had no jv-
risdiction of such suit; and this objection
amounts to a denial of the right of proceeding
in the circuit courts of the United State* by
"foreign attachment." If this be so, it it
scarcely possible that on a point which most
have BO often arisen, we can be without an «i-
presB judicial decision to thai effect. Vet nont
such luM been produced. Two cases are relied
on; but neither of them turns upon this point,
or resembles, in ita circumstances, that now be-
fore the court. In the cast of Picquet ▼- Swan,
6 Mason, 38, the defendant was described, not
aa a citizen of *a different Stnte from [*S1I
the plaintiff, but as "a citizen of the ITnited
Statet;" a defect which Judge Story derland
to be faUl. Again, the service of the aummoiis
waa clearly "defective and nugatory." In tbs
case of Richmond v. Dreyfoua, I Suniner. 131,
it appeared that the defendant was a residnt
and inhabitant of another State at the time tbt
suit was brought, and of course exempted by tha
express provision of the Judiciary Act- Bat
while no deciaiona can be produced againit this
mode of proceeding in ■ similar case, there ar*
several instances in which it haa been adopted
and allowed, fisher v. Consequa, 2 Waah. 382;
Graighle v. Nottnagle, 1 Petera's a C Ref
256; Pollard ». Dwight, 4 Cranch, 421.
The law would seem to be very clear. BT
the Act of 2&tb September, 1789 (sec 2|, a
plaintiff in the Orcult Court is entitled to 'tS
such forms of writs and modes of proi-eaa' a*
are "used or allowed in each State n-sprrtivs-
ly;" and it is not denied that this form of writ
and mode of process is used and allowed in
Pennsylvania. We admit that this law ia con-
trolled by the Act of 24th September, ITSI,
which describee the persons who may, and ^s
may not be sued. By that law, the suit ni^
be "between a citisen of the State where tbs
suit is brought and a cltiien of another Stat*;'
a fact which appears in this case in all tt«
pleadings. There is a proviso, however. Ifarf
"no civil suit can be brought against an iDhshH-
ant of the United Slatea in any other distrirt
than tliat whereof he Is a ' ' "■--'" ■* ""
s inhabitant,- It k
I l»
not drnW that if the <Iprpn'1f> nt Spripie i
B pr.
;fed-
ing would not lie, but it U proved he is not; It
il tdmitted tliiit he has loii|{ been an inhabitant
of Gibraltar. It ia attempted to blend together
ettlunibip and inhabitancy. The act of Con-
gnu did aot mean thii; it granta a peraonal
privilege to the inhabitantii of everjr State,
whether they be citizens or aliena; It give* to
•TeiT peraoD actuall; resident in any State, the
priTilcge of being sued there, and exempt* him
froai tKing dragged away to a distant tribunal ;
the defendant is no such resident, and conse-
quently the law did not mean to give him any
nich privilege-
But, even had be been entitled to that privi-
lege when the suit was brought, it is now too
late to avail himself of it. He has pleaded in
t»r to the action, which is a waiver of his per-
sonal privilege. Had he pleaded in abatement,
the point would have come up for the Judg-
ment of the court. By neglecting to do lO, ha
has waived It. Harrison v. Howan, 1 Peters'e
a C, r^ 491; Pollard v. Dwight,4 Crancb, 421;
Logan V. Patrick, 6 Cranch, ZS8; Picquet v.
S94*] Swan, 6 Maeon, *43. The motion to
quaab was a summary proceeding, on which
error will not lie. If the defendant intended to
avail himaelt of an alleged error of the court in
that decision, he should have then permitted
Judgment to go by default, or have pleaded in
alMtement, no that tliere mieht have been a
judgment on the point. He has pleaded
too late to avail
the Circuit Court
n a summary mo-
be fore this court,
The record
to the action, and it is
himself of the error, if it w(
But suppose it was error ii
to refuse thia privilege even ■
^on, atill, by the record now
t doea not appear that they
nerely sets forth a general "motion to quash
hm attachment;" and, as ^neral, a "refusal"
>T the court; the ground either ol the one or
.be other do not appear.
Fassin;;, then, this preliminary point of the
uHsdiction of the CSrcuit Court, we come to
he charge of the court, in which the plaintiff
ontenda there is manifest error.
It ia necessary to examine the pleadings care-
nil]'. This la an action of assumpsit. The
efendant pleads, first, noa assumpsit; second,
Im statute of limitations. The plaintiff Joins
wue on the first, and replies to the second that
e ia not barred by the statute of limitations,
ecattae "the sum claimed became due in trade
etween them aa merchants, and merchant and
letor, and that no account was ever stated or
tttled between them." The defendant rejoins
11I7 that "the sum claimed did not become
[U in trade between them as merchants, and
.archant and factor." The plaintiff Joins issue.
arr, then, are two isniei, both tendered by the
ifaBdant; and they are, first, non assumpsit;
«OBd, were the dealings between the parties
iaa« of merchants T No other points are left
wn by the pleadings. The whole intention
pleading is to ascertain exactly the point in
ntrovcrBy : the issue tendered ia the notice of
ia point given by one party to the other. Ac-
rdingly, on the trial (as the receipt of the
(mey was admitted, and the assumpsit thus
ored), the whole evidence and argument were
■ifined to the point whether or not "the deal-
ga between the parties ware those of mer-
chants, a»d merchant tmi factor." When Uia
court came to charge the Jury, they excluded,
expressly, from their eonsideratTon all the evi-
dence aa to thefactsinvolvcd in this point, and
all the arguments upon it; end they instructed
them that the case was to be decided upon
another point, namely, that where there was a
settled and stated account for more than six
years, it barred the plaintilTa claim; that the
account of 4th 'July, 1826, from ['ttS
Sprague to Fettit was auch an one. and that the
fury must so And, as the question was one of
aw, not of fact. The verdict waa ao found
accordingly, "under the direction of the court-'
To this charge we have three sxceptionsi
I. The court charged on the issue, "whether
or not there waa a settled and stated account
between theae partiea," and In so doing they
1. Because the parties themselves never made
such an issue in their own pleadings. The
plaintiff in Ids replication had expressly ten-
dered that point to the defendant, but he bad
not accepted It.
2. Not only was that point not made by the
ptendinge, but it waa excluded by them; for if
there was an account settled and stated, it
showed a balance due to the plaintiff for more
than six years, yet the defendant denies sny such
balance at any time. Again, it ia excluded be-
cause it was traversable matter presented, tot)-
dem verbis, in the replication, and It is a set-
tled rule of pleading that "every material fact
alleged must be traversed" (Lamed v. Bruce,
e Mass. 57), and that "where traversable mat-
ter is not traversed, it Is ctmfessed." Nicholson
V. Simpson, Stranse, 207. The allegation made
by the plaintiff in his replication that there was
no account stated, not being traversed, was thua
confessed, and therefore excluded from the
consideration of the Jury or the court.
3. Nor was the case either argusd or tried
upon this point.
It was therefore error tn the court to charge
on It. They had no right to put to the jury
that which was concluded by the pleadings; as
well might the court on a plea of payment in
an action of debt on a bond, instruct the jury
to find that It waa, or was not the deed of the
defendant.
n. But suppose the question whether there
was a settled accoimt be not concluded by the
pleadings be still open to the Jury, yet thia was
a matter of fact. Various considerations are
Involved in it; it is not "a construction of writ-
ten papers;" the very plea and issue show it
was for a jury: there was a complicated account
between Sprague and Pettit, a third person,
the extent to which Toland, the plaintiff, waa
connected with each of them wbs an easenttal
element. The court. In their char^, toole en-
tirely from the Jury all consideration of these
matters, and deddcd the point aa entiralj' one
of law. In this there waa error.
m. To come, however, to the main Inquiry,
We contend that there never waa, In fact, an
account stated and settled, so aa to deprive the
•plaintiff of the heneflt of that eicep- ['ase
tion in the statute of limitations which exists
in favor of merchants. If we establish this, M |
the court has charged there is such a stated
and lettled account we satabUsh » manifest
Sunuix CovBT or rait Unitkb Staii
Am\TAJng (o the erlrlciwe in th«
dflfenilKiit Spragiie wat tha fartor of Totand the
Slaintilf, and corresponded with him at
■om December, 1824, to July, 182S. He
ftUo, during the sarae period, engaijed In trade
with Fsttit. In the latter manlh, lie made up
an account lalea between hiniHlf and Pcttit,
and sent it, not to the plaintiff, but to Pettit;
in ivhose hands th« plaiatiH saw it, and found
it embraced aome of hia property, and this
ha demanded of him. Tiie deiilin^ between
the plaintiff and defendant continued open
for leveral yeani Bprague always explii^ltly
refuaed to state or settle an account betivei.>n
himself and Toland for any itRn in the account
■alea rendered to Pettit. and denied that the
former had anything to do with it. Yet on
these facts, it i* contended that there was a
stated and settled account between Toland and
Spraene. What ii a "stated account T" Lord
Hardwiclte describes It. It la an account cur-
nnt.aent by one mercliant to another, in which
a balance is due from one to the other. Tickel
V. Short, 2 Vesey, 239. If the receiver holds it
for a certain time without objection, it becomes
a stated account. It must be an account, that
is, a settlement of their transactions by the par-
ties; it must be between themselves; it must
Ereclude both parties. But how is this account
etween Pettit and Gprague a settlement be-
tween the latter and ToiandT Would Sprague
be precluded from any claim af^inst Toland
because he had oTnitted to state it in such an
account with a third person T It is no settle-
ment, no statement of an accouat, and conse-
quantly no bar.
Ill addition to these exceptions to the charge
of the court, it remains to make a single ra-
mark on a point presented by the defendant, as
a reason why the writ of error should be dis-
miss ed— that "there were two pleas pleaded,
the one being the general issue, and no aver-
ment in the record, that in this verdict and
judgment on this plea, there was error." In
reply, the judgment is entered on the verdict,
and that is expressly stated to be under the di-
rection of the court, whose charge was confined
to the question of the statute of limitations.
But in truth, this is not material; for it is suf-
ficient to show manifest error on any point in
the charge of tha court.
StI*] *Mr. Justice Barbour delivered the opin-
ion of the court:
This is a writ of error to a judgment of the
Circuit Court of the United States for the Dis-
trict of Pennsylvania.
The suit was commenced by the plaintiff in
r against the defendant in error, oy a proc-
taws of that State, a debtor who
habitant of the commonwealth, is liable to be
attached by his property found therein, to ap-
pear and answer a auit brought against him by
B creditor.
It appears upon the record that the plaintiff
la a citizen of Pennsylvania, and the defeiidant
a citizen of Massachusetts, but domiciled, at
the time of the institution of the suit, and for
some years before, without the limits of the
United States, to wit, at Gibraltar; and when
III" pttachment was levied upon hia propertj,
Upon the return of the attachment, •
on certain garnisheea holding property of, or
being indebtei! to the defendant, he, by Ua at.
tomey, obtained a rule to show cause why the
attarhntent should not be quashed, whicb rale
was afterwards discharged by the court, after
which the defendant appeared and pleaded.
Issues were made up between the parties, oa
which they went to trial, when a verdict ftnd
judgment were rendered in favor of the de-
fendant. At the trial a bill of eitceptiona waa
taken by the plaintifT, stating the evidence at
large, and the charge given by the court to tbt
jury, which will hereafter be particuiarW no-
ticed when we come to consider the merits of
the case. But before we do so, there are aome
And the flrst is, whether the process of for-
eign attachment can be properly used hy the
circuit courts of the United States in eMsea
where the defendant is domiciled abroad, and
not found within the dintrict in which the proc-
ess issues, so that it can be served upon hiinT
The answer to this question must be fomtd
In the construction of the 11th section of tke
Judiciary Act of 1789, as influenced by tba
true principles of interpretation, and by tbe
course of legislation on the subject.
That section, as far as relates to this quratioa,
gives to the circuit courts ori^nal cognizance,
concurrent with the courts of the several Stsitea,
of all suits of a civil nature, at common Ikw or
in equity, where 'the matter in diepnte [*SSI
exceeds, exclusive of costs, the sum or va.1ue of
Ave hundred dollars, and an alien is a party, or
the suit is between a citii^en of the State where
the suit is brought, and the citizen of anotber
State. It then provides that no person shsi.n be
arrested in one district for trial in another In
any civil action before a circuit or district court;
and moreover, that no civil suit shall be brought
before either of said courts against an inhabit-
ant of the United States, by any original proc-
ess, in any other diftriet than that whereof be
is an inhabitant, or in which he shall be foimd
a particular district, the langiiaf:e is too ex-
plicit to admit of doubt. The dilliculty Is in
giving a construction to the section in relktioa
to those who are not inhabitanta and not found
in the district.
This question was elaborately argued by tbr
Circuit Court of Massachusetts in the e»se of
Picquet v. Swan, reported in fith Mason, 35.
Referring to the reasoning In that caae, g^-
erally. as having great force, we shall content
ourselves with stating the subBtnnce of it u a
condensed form, in which we concur. AUbmif>h
the process acts of 1789 and 1792 have adopted
the forms of writs and modes of process in tk*
several States, they can have no effect irkcrv
they contravene the legislation of Oongiiaa.
The State laws can confer no authority on this
court, in the exercise of its jurisdiction, by the
use of State process, to reach either persona or
property which it could not reach within tbe
meaning of the law creating it. Tha JodtFiaiy
Act has divided the United Statea into jndicnl
diatricta. T^thin these districts k circuit court
Pcteva la.
1S38
ToLUfD V. SrsAoDX.
U nqiured to b« holden. The circuit court of
e«cli district sita within %ad for that district,
and is bounded bf its local limits. Whatever
naf ba the extent of their Jurisdiction over the
■ubject matter of suits, in respect to persons
and propertT, It can only be exercised nit' '
the hmita of the district. Congress might hi
autliorixed dvil process from »nj circuit court
to have run into any State of the Union. It
has not done so. It has not, in terms, author,
iied anv original civil process to run into any
other district, with the single exception of sub-
r\t» for witnesses, within a limited distance.
regard to llnal proecss, there are two cases,
•nd two only, in wiiich writs jf execution can
now bv law be served in any other district than
that [n whiuh the judgment was rendered — one
In favor of private persons in another district
of the same State, and the other in favor of tlie
S3S*] United Stales, in any part of 'the
United States. We think that the opinion of
the Legislature !• thus manifested to be that
the process of a circuit court cannot be served
without the district in which ft is established,
without the special authority of law therefor.
If such be the inference from the course of
legislation, the same inteipretation Is alike
■ustained by considerations of reason and jus-
tice, Nothing can be more unjust than that ~
process being served upon him by which he
will have notice, which will enaole him to
appear and defend himself. This principle is
strongly laid down In Buchanan v. Rucker, S
East, 102. Now, it is not even contended that
the circuit courts could proceed to judgment
against a person who was domiciled without
the IJnited States, and not found within the
judicial district, so as to be served with process,
where the party had no property within such
district. We would ask what difference there
is, in reason, between the cases in which hs has,
and has not such property! Id the one case,
as in the other, the court renders Judgment
against ■ person who has no notice of the pro-
reeding. In the one case, as in the other, they
are acting on the rights of a person who is
beyond the limits of their jurisdiction, and
upon whom they have no power to cause proc-
eas to be personalty served. If there be such
a difference, we are unable to perceive it.
In examining the two restraining clauses
of the eleventh section, we find that the proc-
vsa of capias is In terms limited to the district
within which it is issued. Then follows the
clause which declsres that no civil suit shall be
brought before either of the said courts, against
an inhabitant of the United States, bf any origi.
nnl process, in any other district than that
whereof he is an Inhabitant, or in which he shall
be found at the time of serving the writ. We
tfaink that the true construction of this elause
ii that it did not mean to dlstingulah between
thoee who are inhabitants of, or found within
the district, and persons domiciled abroad, so as
to protect the first, and leave the others not
within the protection; but that even in regard
to thoee who were within the United States,
they should not be liable to the process of the
eircuit Courts, unless in one or the other pre-
dicament atated in the clause; and that as to
all thoM who were not wiUila the United
States, It was not In the contemplation ot
Congress that they would be at all enb-
ject, as defendants, to the process of the cir-
cuit courts, which, by reason of their being in
a 'foreign Jurisdiction, could not be [*SSO
served upon them, and therefore there was no
provision whatsoever made in relation to them.
If, Indeed, it be assumed that Congress acted
under the idea that the process of the circuit
courts could reach persous in a foreign Juris-
diction, then the restrictions might be construed
as operating only in favor to the inhabitants of
the United States In contradlstiDctloa to thoae
who were not inhabitants; but, upon the prin-
ciple which we have stated, that Congress had
not those in contemplation at all who were ink
foreign jurisdiction, it is easy to perceive why
the restriction in regard to the process was con-
fined to inhabitants of the United States.
Plainly, because it would not have been neces-
sary or proper to apply th>i restriction to those
whom the Legislature did not contemplate as
being within the reach of the process of the
courts, either with or without restrictions.
With these views, we have arrived at the
same conclusions as the Circuit Court of Massa-
chusetts, as announced in the following propo-
sitions, vic: 1st. That t; the general provisions
of the laws of the Untied States, the circuit
courts can issue no pro<:eBs beyond the limits
of their districts, 2d, That independently of
positive legislation, the process can only be
served upon persons within the same districts.
3d. That the acts of Congress adopting the
State process, adopt the form and modes of
service only so far as the persons are rightfully
wtthin the reach of such process, and did not
intend to enlarge the sphere of the jurisdiction
of the eircuit courts. 4lh. That the right to
attach property, to compel the appearance of
persons, can properly be used only in cases in
which such persons are amenable to the process
of the court, In personam; that is, where they
are InhabitanU, or found vHthin the United
State*, and not where they are aliens, or citi-
sens resident abroad at the commencement ot
the suit, and have no Inhabitancy here; and w»
add that even in a case of a person being amen-
able to process In personam, an attachment
against his property cannot be issued againat
him except aa part of, or together with process
to t>e served upon his person.
The next inquiry is, whether the process of
attachment having issued improperly, there has
anything been done which has cured the error.
And we think that there is enough apparent
on the record to produce that effect. It appears
that the party appeared and pleaded to issue.
Now, if the case were one of a want of juris-
diction In the court. It would not, according to
well established principles, be eompetent for
'*" 'Mrties by any act of theirs to give it. But
is not the case. The court had juriadiction
the ]»rties 'and the matter in die- [*SS1
pute; the objection was that the j«rty defeml-
ant, not being an inhabitant of Pennsylvania,
nor found therein, personal process could not
reach him, and that the process of attachment
could only be properly issued against a party
under ciKumstances which subjected him to
tsB in personam. Now, this waa a personal
privilege or exemption which it was competent
for the party to waive. The cases of Pollard
T. Wright, 4 Cranch, 481, and Barry t. foylea.
331
SnPKKHX CocBT or the Ukitid States.
isa
1 Peten, 311, kre dMlalve to show tbftt ^ter
ftppeanince and plea, the c«ae itaiida as if the
auit were brought in the ububI manner. And
the first of these casee proves that exemption
from liability to proceM, and that in case of
foreign attachment, too, is a personal privilege,
whicE may be waived, and that appearing and
pleading will produce that waiver.
It has, however, been conUnded that al-
though this is true as a general proposition,
yet Uie party can avail himHelf of the objection
to the procGSB in this cage, because it appe;trs
from the record that a rule was obtained hy
him to quash the attachment, which rule was
afterwards discharged; thus showing that the
Erty sought to avail hijnself of the objection
low, which the court refused. In the Brst
place, it does not appear upon the record what
was the ground of the rulei but if it did, we
could not look into it here, unless the party
had placed the objection upon tbe record, in a
regular plea; upon which, bad the court given
judgment against him, that judgment would
have been examinable here. But in the form
in which it was presented in the court below,
we cannot act upon it in a court of error. The
Judiciary Act authorizes this court to issue
writs of error to bring up a final judgment or
decree in a civii action, or suit in equity, etc.
Tbe decision of the court upon a rule or mo-
tion is not of that character. This point,
wliich is clear upon the words of the law, has
been often adjudged in this court; without go-
ing farther, it will be sufficient to refer to S
Peters, 648; S Peters, 4, In the first of these
cases the question is elaborately argued by the
court, with a review of authorities, and they
o this conclusion — tljat tbey consider all
s of this sort (that is) to quash execu-
I, as addressed to tbe sound discretion of
the court, snd as a summary relief, which the
court is not compellable to allow. Tliat the
refusal to qiii^ih is not, in the sense of the com-
mon law, a, judgment; much less is It a final
Judgment. It is a mere interlocutory order,
Sven at common law, error only lies from
a final judgment, and by the express pro-
S32*] Tisions of the 'Judiciary Act, a writ of
error lies to this court only in casea oT final
jui^menta.
Having now gotten rid of these preliminarj-
questious, we come, in the order of argument,
to tho merits of the case. To understand
these it will be necessary to look Into the
pleadings, the evidence, and charge of the
court, as embodied in the exceptions.
The declaration is an assumpsit, and original-
ly contained three counts, viz., the first, a
count charging the delivery of certain goods
to the defendant, upon a promise to account
and pay over the proceeds, or sale thereof, by
the defendant; and a breach of promise, in not
accounting, or paying tbe proceeds of the sale.
2d. A count in indebitatus assumpsit; and 3d, a
count upon an account stated. A rule having
been granted to amend the declaration by
•trilcing out this last count, and that rule bav-
Ing been made absolute, we shall consider tbe
declaration as containing only the two first
counts. To this declaration the defendant
pleaded the general issue, which was joined by
the plaintiff, and also the act of limitations; to
this secosd plea tha plaintiff replied relying
OB the exception In the statute in favor of nA
accounts as concern ths trade of merchandise
between merchant and merchant, their factors
or servants; averring that the money in ths
several promises in the declaration bt-came dnc
and payable on trade had between the plaintiff
and defendant, as merchant, and merchant and
factor, and wholly concerned the trade of mer-
vhandiae between the plaintilf as a merchant,
and the defendant as a merchant and factor ol
the plaintiS'; and averring, also, that no sc-
count whatever of the said money, grtcds, and
merchandises, in the declaration menlioneid, or
sny part thereof, was ever stated, or settled be-
tween them. Tbe defendant rejoined, that be
was not the factor of the plaintiff; and that
the money in the several promises in the decla-
ration mentioned, did not become due and pay-
able in trade had between the plaintiff and de-
fendant as merchant, and merchant and factoi :
and on this, issue was joined. On the trial of
these issues, there were sundry letters between
the parties, and accounts given in evidence,
which are set forth at large in a bill of e.tcrp-
tions, in relation to which the court gave a
harge to the jury; the jury having found a
verdict for tbe defendant, and the
writ of error. And the question ia, whether
there is sny error in the charge of the court, as
applied to the facts of the case stated in tbe
exception. The court, after going 'at [*33)
large into the facts of the esse, and the prinri-
ploa of law applying to it, concluded nrith this
instruction to the jury; That there was do
evidence in the cnuae which could justify
them in finding that Ihe ncionnt in evidence
was such a mulual, open one, aa could briaf
the case witliiu tbe exception of the act M
limitations.
In deciding upon the correctness of thia in-
struction, it IS necesHsry to inquire what is tbe
principle of law by which to test the qnestioo,
whether a case does or does not come within ths
exception of the statute, in favor of accounts be-
tween merchant and merchant, their fm-tors tr
servants. No principle is better settled thun that
to bring a case within the exception it must bt
an account; and that, an account open, or ear-
rent. See 2d Wms. Saund. 127, d. e., nott
7, In 2 Johns. 200, the court say that the
exception must be confined to actions on opea
or current accounts; that it muit be a direct
concern of trade; that liquidated demaods, sr
bills and notes which are only traced up to ibe
trade or merchandise, are too remote to come
within this description. But the case irf
Spring et a!, v. The Ei'rs of Gray, in this court
(6 Peters, IB1(, takes so full and accurate a re-
view of , the doctrine and ca&es as to render it
unnecessary to refer to other authorities. R
distinctly asserts the principle that the acoomrt.
lo come within tbe exception, must be opca «
current. This construction, so well settled on
authority, grows out of the very purpose ftr
which the exception was enncted. That pim
pose was to prevent the injustice and tejui?
which would result to merchants having tr»dr
with each other, or de(^:ing with factor*. u4
living at a distance. If the act of limitaiioss
were to run, where their afcounta wtrt upi*
and tmaettled; where, therefore, tbe balsJW
ToL&KD r. SnuGUB.
ms nnuMrtaiiicd, utd wjiere, tno, tli« atate
at the accounts miglit be constantly fluctust-
ine, bj continuing dealingB betweeD the partiea.
But when the account is stated between the
MTties, or when anything sball hare been done
D7 them which, bj their implied admission, ii
aquivaJent to a settlement, it has then became
KB aacertained debt. In the language of the
Court of Appeals of Virf^oia, 4 Leigh, 249,
"all intricacy of account, or doubt ae to which
•id* the balance may faJI, ia at an end;" and
thua the caw it neither within the letter nor
the apirit of the exception. In ihort, when
there is a settled account, that becomes the
cause of action, and not the original account;
Although it grew out of an account betweei
mierchaiit and mercbant, their factors or seir-
Let u* now inquire how far this priuclpl<
■ S4*] applies to the facts of this case. It
■ppeara by the bill of ezceptiona that the facts
In the year 1S24, the plaintiff conai^ed a
Quantity of merchandiBfl by the ship William
etin, bound for Gibraltar, to a certain Charles
Pettit, accompanied with instructions aa to the
disposition of it. Pettit, after arriving at Gib.
raltar, and remaining there a short time, placed
all the merchandise belonging to the plaintiff,
which remained unsold, in the hands of the
defendant, to be disposed of by him, for plain'
tUTi account. The plaintiff produced on th«
trial, an account of the sales of the aforesaid
merchandise, dated June 3Qth, 1826, aigned by
the defendant, as having been made by him,
■mounting in net proceeds to two thousand
five hundred and seventy-nine dollars and
thirteen cents, and showing that balance.
In September, 1825, the plaintiff wrote to the
defendant, requesting him to remit to him the
net proceeds of this merchandise, amounting to
two thousand five hundred and seven ty.nine
dollars and thirteen cents, after deducting
therefrom a bill of exchange of one thousand
dollara, which had been drawn by defendant
in favor of Charles Pettit, on a house in New
York. Pettit being indebted to the defend-
ant, aa alleged by him, in a large sum of
money for advances and otherwise, the de-
fendant refused to pa,y the plaintiff the amount
of the sales of the merchandise, and denied his
liability to account to him therefor.
In addition to the demand before stated by
plaintiff on the defendant for the balance of
the account of sales by letter, on the trial of
the cause the counsel for the pluntiff, in open-
ing the case, claimed the balance' of an account
between Sprague, the defendant, and Charles
Pettit; being the precise amount of the balance
of the account of sales, after deducting the bill
of exchange for one thousand dollars.
It appears that the plaintiff was in poases-
■lon ot the account of sates as early ae Septem-
ber. 1926.
Upon this state of facta appearing in the rec-
ord, the question is whether the cause of action
In this case Is an open or current account be-
tween the plaintiff and defendant, aa merchant
and factor, concerning merchandise; or whether
It ia an ascertained balance, a liquidated aum,
which, although it grew out of a trade of mtt-
chandiae, it. In lenil effect, under the drenm-
> L. ed.
stances, » elated aoeoimt W« tUnk It b the
latter.
In the language of the court who gave the
charge, we think that •"the claim is ['335
for a precise balance, which was demanded
by the plaintiff from the defendant in 1825."
From the nature of. the account, and the coq<
duct of the partiea, there was frotn the time
the account of sales was received by the plain-
tiff abowing the balance, and demanded by the
plaintiff of the defendant, no unsettled open
account between them as merchant and mer-
chant, or merchant and factor. We agree ia
opinion with the Circuit Court that t^ere was a
matter of controversy brought to a single point
between them; that, is, which of them bad, by
law, a right to a sum of money, ascertained by
consent to amount to one thousand five hun-
dred and seventy. nine dollars. That the nature
of the account is not chan^^ed by there being
a controversy as to a balance stated, wliich tha
defendant does not ask to diminish, or tne
plaintiff to increaee; and as neither party aska
to open the account, and both admit the same
balance, there can be no pretense for saying
that it ia still open. Aa the Circuit Court say,
the question between them is not about the ac-
count, or any item In it, but as to the right of
the defenilant to retain the admitted balance, to
repay the advances made to Pettit. We agree
with the court that the mere rendering an aa-
count does not make it a stated one, but that
if the otlier party receives the account, admita
the corrcetnesa of the items,claims the balance,
or offers to pay it, as it may be in his favor or
against him, then it becomes a stated account.
Nor do we think it at ail important that the
account was not made out as between the
plaintiff and defendant: the plaintiff having re-
ceived it, having made no complaint as to the
items or the balance, but on the contrary hav-
ing claimed that bilance, thereby adopted it;
and by his own act treated it as a stated ac-
count. We think, therefore, that the Act of
Limitations began to run from the year tR2S,
when that demand was made, and eonsequently
that the instruction of the court was correct In
saying that it was not within the exception.
It has, however, been argued that whatever
might he the conclusion of the court, aa result-
ing from the evidence, that the defendant had
admitted upon the record that (he account was
an open one. It is said that the plaintiff hav-
ing averred in his replication that there was no
account stated, or settled lietween him and the
defendant, and the defendant not having trav-
ersed that averment in his rejoinder, the matter
contained in that averment la admitted. It la
rule in pleading that where in the pleading
-. one party there IS a material averment, which
is traversable, but which is not traversed by
the other party, it in admitted. We think that
the rule does not apply to this 'case, [*83t
because the negative averment in the replica-
tion that no account had been stated between
the parties was not a neceaaary part of the
>laintifra replication, to bring him within the
ixception ol the statute in relation to mer-
chanta* accounts. Inasmuch, then, as the repli-
cation without that averment would be suffi-
cient, we do not consider tt aa one of tboac
material anrments, the omission to traverN
SuvBCME Ooun or thk Unm SfAna.
wUeli !■ an mdmiwion of iU trufh, within the
rule before sUted.
But in another aipect of thii cue the itfttute
of lEmitmtitmB would apply to, knd bar the
plaintiff'i claim, if tlie account of salca were re-
garded as having no operation in the case. The
plaintifl', itancling in the relstion which he did to
the defendant, aa it respecta this merchandiie,
Iiad a right to call upon him to account; he did
make that demand, and the defendant refused
to render one, holding himself liable to account
to Pettlt only. From the moment of that de-
mand and refusal, the statute of limitations
.B argued that the question whether there
was a stated account or oOt was a queatioD of
fact for the jury, and that therefore the court
erred in talcing that question from them, and
telling them that this was a stated account.
The answer la that there was no dispute
about the facts, and that the plaintiff claimed
the balance of Uie account as being the precise
•Dm due to him. It was therefore competent to
the court to instruct the jury that it was a
■tated account.
Upon the whole, we think there 1i no error
tn the judgment; it ia theiefors affirmed with
Hr. Chief Justice Taney.
I concur with the majority of the court In
affirming the judgment of the Circuit Conrt.
But I do not asaent to that part of the opinion
which declares that the circuit courts of the
United States bare not the power to issue the
process of attachment against the property of
a debtor, who is not an inhabitant of the Unit-
presided at the trial tliat it was not
The decisions on this question have not been
uniform at the circuits. In several districts
where this process had been authorized by the
laws of the States, the circuit courts of the
United States adopted it in practice, and ap-
peared to have considered the Act of Congreas
SS7*] of 'ITSD as having authorized its adop-
tion. The different opinions entertained in dif-
ferent circuits, show that upon this point the
construction of the act of 1788 is not free from
difficulty; and as the legality of this |>rocess
has been recognized in some of the circuits for
many years, it is probable that condpmnations
and sales have taken place under such attach-
mente, and that property is now held by bona
fide purchasers, who bought and paid their
money in the confidence naturally inspired by
tho judgment of the court.
It the case before us required the decision of
this question, it would he our duty to meet and
decide it. But the point is not necessarily in-
volved in the decision of this case, and I am.
therefore, unwilling to express an opinion up
on it.
The attaehmeot In the case before us was dis
■olved by the appearance of the defendant, and
no flnal judgment was given upon it in the court
belaw. Wlien the defendant appeared and pleadei)
tn btr t« tfae declaration filed by the plaintifT
the contrwrera/ became an ordinary auit he
Itftn
tween plaintiff and defendant; the pro
on the attachment were at an end, and eouUn
no degree influence the future progreaa and de-
cision of the action- And thia court, in revis-
ing the judgment given by the CSreuit Coort it
such an action, cannot look back to the pro-
ceedings in the attachment in which no jodg-
ment was givenj nor can the refuuU of tbe
Circuit Court to quash the attachment on the
motion made by the defendant, be aasigiud
as error In this oonrt. The raliditw of that >
process, therefore, need not be drawn Into qa»-
tion in the judgment of this court, on the oat
presented here for decision. For whether the
attachment was legal or illegal, the judgment
of the Circuit Court, as the case comes beftre
us, must be affirmed. And as the queation ■•
an important one, and may affect the rights e(
individuals who are not before the court, end
aa the case under consideration doea not require
us to decide It, I think it advisable to abstaia |
from expressing an opinion upon it; and do not
assent t« that part of the opinion of the court j
which declares that the proccu in queation Is |
not Authorized by Uie acU of Congress.
Ur. Juatle« Baldwin agreed with the CliM -
Justice In the o|rinioii delivered by him; if it
was necessary, he would go farther m» to the
authority of the eonrta of the United St*tea to
issue foreign attaehmenta.
Hr. Juittce Wayne agreed with the CUef
Justice ta opinion. He 'thought the ['ISI
circuit eourta of the UuttPd States had an-
thority to issus foreign attachments. The de-
cision on that point is not necessary to the de-
cision of this case.
Hr. Justice Cation had not formed mny opin-
loo on the question of the right of the or-
cnit courts to issue foreign attaehmenta. Be
thought that question did not come befora tta
court in this case, and it was not necesaaiy ts
- decide it.
Tliis cause came on to be heard on the tran-
script of the record from the Circuit Court nl
the United States for the Eastern District of
Pennsylvania, and was argued by coiuuel; <i
consideration whereof, It is now here ordcnd
and adjudged by this court that the judgment
of the said Qrcuit Court in this cause be, and
the same is hereby affirmed with coetn.
Ex-parte BENJAMIN STORY. In Re t"»«
Louise Livingston. Executrix of SAwui
Uvingston, Deceased. Appellant,
BEKJAMIN STORY.
Bill of exceptions unknown in chanoe^ psw
tiee— mandamus to district judge Tefnsed.
A bill of exeeptlaos Is alEoscther nnknowa Is
chancery prsctlce : nor Is ■ court of cbaBcol
I . •- / iw. •_ ._ ordar book, udob tb« b»
irtwrS
boonO to fiscrtl-
plication of one of the parties, •
the court refused to nvird a mandamas ts tti
dfstHet Indite of the Dmtrtct Ot IjiaMana. ca»
-nandloc him to slxn a bill of exeeptfnns bsAMii
to hlOL and to eommand hloi to hsve InscribaC V
tbs tlerk a( the court, on the order book «( tk*
Kx-MiTB Btrar.
fet-t the decree a
Men to carrT Iota et-
Court, In a cue
the court bj ap-
t roort of L
lUEhtX"
t ol LouUltna.
fi a-crte wu maile Id tl
eluai In ■ cue brlon
compiajDBnc vvsi upBd. The eiecatrti wu
ward! admlltfd by ttie Utstrlct Court lo bc<
Klrlj Id the «ulC. (ud pniaecuteil an anpeal
uprcme Court, wtitre ttie decree ot t&e I
Court (Tia reTei'ted on ttaF merit! : and Ibe caae
was *ent bnck lo tbe Ulitrlct Court on a mandate,
mill I ring tbe decree of tbe Supreme Canrl to be
carried Into effect. The dec»M of the plaintiff
before (be decree, nad bla having lett other be'
bnldei tbe eiefuCrli, were olTcrea, In tbe rorra
a aupplemental anewer to tbe original bll), to t
IMalrlct Court, when acting under tbe mandate
tbe Bupreme Court, to ihow error In the procei
iDga of that rourt. »ltb a rlew to bring (be a
axalu Iwlore the Supreme Court, In order to bn
a rt-eiamlnailon and a reversal of tbe decree
tb« court. Tbe UUtrlct Court refused to pern
the evidence ot tbe matten alleged to be enter
on the records of tha court, or to elgn a bill of i
captlona, alatlng that tbe lame bad been olTen
Tbe court aald. In the cbbc of SklDerb'g Eiecutc
T. May'* Rie«utorB, « Crauch, 2flT. It wia said. "
It appeared that tbe merlla of tbe ca^ie had be
llDall} decided In tbli court, and that Ita mandate
required only the execution of tbe decree, the Cir-
cuit Court waa bound to carry that deiree into ei-
aeutlon, aliboujih tbe JurUdlcllon of the court waa
Dot Blleeed In the pleading*." In Ibe case noir be
lore tbe court, tbe mcrltB of tbe controreraT were
flnslly di^i:ldrd by th)a court, and Its mandate to
the District Court required only the eiecutlOD of
tbe decree. On the autboilty of thl* case, the re
fuaal to altow the defendant Id file a aupplemental
anawer and plea, wa* auatalned.
THE cue of Louise Livingston, Executrii of
Edwkrd Livingatan, Deceased, was before
this court at the Janiiarj Term, lf)37.
appeal of Mrs. Liviagston, aa administratrix,
against Benjamin Storj, front the District
Court of the United States for the Esatem
Diatriet of Louisiana. 11 Peters, SSL
■ iO"] •The decree of the District Court of
Louisiana waa reveraed, and the caae was aent
back to that court on a special niaadat« from
this court.
Mr. Crittenden, for Benjamin Storj, now
S resented to thia court a petition on behalf of
[r. Story, atating:
That there is pending against him in the
Court of the United States of the Ninth Cir-
cuit and Eastern District of the State of Loui-
siana, a certain auit jn chancery. In the name
of Louise Livingston, which suit waa orlgi-
nallf instituted in the name of Edward Llving-
Th«t during the present term of the court,
your petitioner moved the court to abate or
dismiss said caime upon the grounds Ihst Bid-
ward Livingston had departed this lite, before
the rendition of tlie decree diamissing thia bill.
That upon the hearing of said motion, your
petitioner introduced a witness for the purpose
of proving the time of the death of Edward
Uvingston, whose evidence was rejected by
the court; to which opinion an exception waa
taken, and a bill of exceptiona prepared, which
•tated tnily the facts, a copy ot which accom-
panies this petition.
Upon Its presentation, tht Judge remarked
that he would ai;.'n no bill of exceptions unless
he was convinced he was bound to sign one.
Upon being aubsequentlj importuned upon the
aiihjeet, he aUted U h« aignad » lull of
« b 00.
exeeptiiHU, he mnat gfra tht naaotis at length
for his opinion. He has been sgain and anin
importuned, and unsucceasfuity, on the lubject.
i'hat on this day your petitioner's counsel
presented to tbe court the annexed answer, eta.,
and desired that it tniglit 1m placed upon the
filra in the causa. But the court refused per-
mission to flle the same. Thereupon tbe an-
nexed bill of exceptions was tendered t« the
judge, which bill truly stated the facta; but
the judge refuted to sign the aame, or make it
a part of the record.
The court was then moved to direct the clei^
of the court to state the facta upon the order
iKiok; but the court refused to sulTer any no-
ticr to he taken of thia matter as a part of the
proceedings in the court, atatinn, at the same
time, that he conaidered a mandamus to be the
true remedy; and alleging no other reason for
not signing the bill of exceptions, or suffering
notice to he taken of the presentation of th«
answer on the record.
Thus far your petitioner la denied the oppor.
tunity of havlrg the *said declaiona of [•341
the court reviaed. or of having the recorda ot
tbe court to apeal< the whole truth. Your peti-
tioner annexes a full transcript of the proeced-
In^ in said case since it was remanded.
Forasmuch as your petilioner is withotit
other remedy, he prays your honorable body to
-.ward to him a writ of mondannis, in nature
if a writ of procedendo, to compel the judge,
the Hon. P. K. Lawrence, to sign said excep-
tions, and to permit the s^ record to apeak
the truth.
the petitioner, in the CSrcuit Court.
The fatiowing is a copy ot one of the Ulta
of exception referred to In tbe foregoing pati-
Livingaton ''
Story.
Be it remembered that on the trial of tUa
motion tlie defendant. Story, introduced Henry
Carlton aa a witncsH, and offered to prove by
that Edward Livingston, the former eom-
Slainant herein, departed this life on the
»y of , and before the trial and decree
in this court, at the Spring Term, 1B36; and
] that Edward Livingston left living a
rghter and heir at the time of his death, who
is atill living. To the admiasihility of all aaid
evidence, the complainant's counsel objected,
1 the court sustained the obieetion; and
uiTd not permit said witness to oe examined,
the testimony of the foregoing facta, or
ler of them, to be inquired into. To which
opinion of the court the defendant ezcepttd,
and prays that hia exception may be signed,
sealed and enrolled, which ia done.
The motion was opposed by Mr. Key, tha
counsel for Mrs. Livingston.
Hr. Justice Taney delivered the opinion ol
the court I
In thia cikae a mandamus has been moved tor
•u
SuPBBWE Cumtr ot tbr Uiiitbd fi
W bahklf of Benjamin Story to the arcult
Cfamt for the Ninth arcuit tot the Eastern
Diatrict of Louisiatit..
TIm facts in the c&ae are ai followi: Edward
14t<] UTiDgston, In hit ■lifftime, flTed a hill
Ml the •quity side of the District Court for the
Butem District of Louisiana, against Benjamin
BtoTT, and at the hearing of the cause the court
dacided aminit the complainant, and dismissed
tb« bill. This decree was passed June 3d, 1836.
On the 1st of October, 1836, Louise Livingston
IU«d m petition in the District Court, slating
tWt Idward Uvingston hud died after the suit
was decided, and had by his will appointed her
■ols wecutrii) and praying leave to make her-
Mlf m party in order to appeal to this court.
A eopy of the will of Edward Livingston was
Hied with this petition, by which it appeared
thkt the was the sole executrix. Louise Liv-
tngston was accordingly permitted to become i
DHty, and by her solicitor appeared in the Dis-
trict Court as complainant in the eharscter of
exeeutriz, knd appealed to this eoort, where
the cauM was heard at January Term, 1637,
mud the decree of the District Court reversed,
•nd the ease sent back, with a mandate from
thil court to the court below, directing the fur-
ther proceedings to be had in that court.
It appears by the petition for the mandamus
(which IS verifled by affidavit) snd by the copy
of the record from the court below which ac-
companies it, that the mandate from this court
was filed in the District Court, March 2d, 1S37;
and proceedings were accordingly had under
the orders of the District Court to carry into
execution the directions contained in the man-
date. Afterwards, the eaaa having been trans-
ferred to the Circuit Court under the act of
OongreSH creating additional circuits, the de-
feai^t, on the 20th of November, 1837, ob-
tained a rule on the complainant to show cause
why the bill should not be dismissed, or the
suit abated, upon the ground that Edward
Livingston, the complainant in the original bill,
died before the hearing and decree in the Dis-
trict Court In I83G; and also, because the suit
had not been regularly revived by his executrix,
the present complainant, and could not be re-
vived, inasmuch as she claimed ae devisee. On
the 18th of December, 1837, the rule above
mentioned was discharged, and tbe testimony
offered to prove the facts alleged aa the foun-
dation of the rule rejected by the court. The
defendant, on the day last mentioned, further
moved that he be permitted to give evidence
that Edward Livingston had left other heire
besides Mrs, Louise Livingston, which motion
was also overruled by the court. The defend-
ant thereupon tendered a bill of exceptions to
these opinions, but the court refused to sign It.
The defendant afterwards prayed leave to Gle
"a Bupplemenlal answer and plea," in which
S48*] *he averred that Edward Livingston,
the original complainant, died on the 23d of
Vmj, ISSS, which was some days before the
decree of the I^striet Court dismissinK his bill;
and also averred that he teft a daufjhter, who
was still livinp. and had an interest in the sub-
ject matter in eontroveray: and pleaded the
death of aald Edward Livingston in abatement
of the proceedings; and further insisted that
the suit had never been revived by Louise Liv-
tngstoB, who appears aa complainant; and that
Itlf
the dau^ter of Bdward UTingston wm « ■iiiim
sary party, and that the court could not ealsr-
tain jurisdiction because she waa not ft pa^.
fbe court refused to receive this answer or la
permit it to be flied. The defendant thve.
upon tendered another bill of exceptions, wUA
the court refused to sign. The defendant tlm
moved the court to direct the cleric to state the
facts upon the order book, but the court n-
fused to suffer any notice to be taken on the
record of this proposition to All the anppk-
mental answer and plea, and a mandainus is
now moved for, to compel the judge to aign the
exceptions, and to correct the record, ao aa to
make the answer which defendant propoeed to
file, and the refusal of the court to roceive it,
appear on the record aa a part of the proceed-
e think there is no auffirient gronnda fer
thia application. A bill of excepttona la alla-
gether unknown In chancery practice; nor Is a
court of chancery bound to inscribe In sun order
book, upon the application of one of Um par-
ties, an order which it may pass in a caae baose
it; and the facts which the defendant stated ia
the supplemental answer and plea which hs
offered, furnished no ground of defenae ia
the Circuit Court, when acting under the
Executor! v. May's Bxecntora, fl Crancfa, £n,
this court said that as it appeared that th« Mer-
its of the case had been finally decided in tUi
court, and that its mandate required only the
execution of its decree, the Circuit Court waa
bound to carry that decree into execntioa,
although the jurisdiction of the coart waa aot
alleged in the pleadings. In the eaae now be-
fore the court, tbe merita of the eontroreny
finally decided by this court, and its nua-
date to tbe District Court required only the ex-
ecution of its decree. The ease, therefor^
comes within the principle of Skillem'a Exee«-
tora V. May's Exeeutore, and the facta stated Vf
the defendant cannot, in this stage of the pe»>
ceedings, form any defense against the exen-
of the mandate, and consequently he waa
deprived of any lenl *or equitable [*144
ground of defense by the refusal of the eonrt
to suffer him to file the supplemental a.nsw«r
and plea which be offered.
On motion for a mandamus to the judge ef
the Circuit Court of the United States for the
Eastern District of Louisiana. On consideratiM
of the motion made In this case by M>. Crit-
tenden, on a prior day of tbe present term of tUa
court, to wit: on Saturday the 17th day of hh-
ruary, A. D. 183B, for a writ of mandajnw ta
the nature of a writ of procedendo, to i iiiwysl
the judge of the Circuit Court of the DnHeJ
States for tbe Eastern District of Louiaiana te
sign the bill of exceptions tendered to htra bj
the counsel for the appellee in this cause, and to
permit the record of the case "to speak the
truth." and of the arguments of counsel tben-
upon had as well in support of, as aninat tkt
motion; it 1* now here ordered and Mjudged ^
this court that tbe said motion be, and the nva
Is hereby overruled. _
JACro DUBOIS, LeMM of (M1v«t 8. Wolcott.
Lagil ineapuitj of feme eoveit — wlmt jury
mKj Infer — for whiit purpoM this court cu
vnunine eTidence.
Tb* deed of m feme conrt, eoiire;[i]g ber Interett
■■ liDdi which ibe owni to fe«, does not nia her
tatciHt tgr the (om «I It* ciecutloa and dellvcrr,
and eartUr
Where the evidi
> fact Id luae before
■eparate ■ckDoolednioent,
.... v......_j ^j._ ^^^ tbese S.=.
oWcer suthorliw
iwledxmeDt, tha
a Jurr
vhlcb the Jaw i
murrei to cTldi
either pirtj on
- _ ]ar,. .. .-
□ lul
„ TPrdlct -.
e CTldencc. he haa ■ right to dB-
_ . _ [ error that ibry look to the «» i-
dcnce odIj (or one purpoit, vlth tha single eye to
aacertiln whetlirr It was oompelect In law lo au-
thorise the Jury to And the tscts which made out
tbe tight ot the party, on a part of the whole of
tail esse. H. la iU Judgment, the Appellate Conrt
ahall hold that the evidence was competent, then
tba7 muat found their JudgmcDt on all Buch tacts
aa wera lenllj inferable therefrom; In tbe oma
maBoer, bd^ with the seme legal results aa If Che;
bad been definite]; set out In a special verdict. Bo,
OB tb* other hand, the flndlng ot ■ lur; od the
•rhole OTldenes In a cause, mast be taken aa nesa~
dTlnc all the facta in which the part; aaalost
whom their venllct I* glveo, has altempted to later
froa, or establish from tbe STldeuce.
Tba dcdaloo ot the court In the ease ot DuMa*
Laaaaa t. Bqtbura, 10 Petera, 1. alBnsed.
ERROR from the I»strict Court of tbe United
BtatM for th« Weatem Diatrict of Penniyl-
Thia was an action of ejectment inatituted by
tha defendant in error for a tract ot land situ-
ated In Lycoming County, Pennaylvania, stir-
Teyed under a warrant to Joseph Fearon, and
K tented to him on tbe 10th September, ITIM.
IB caae was before the court on a writ of er-
ror prosecuted by the p)ainti(f In the ejectment
M January Term, 1636, and ia reported in 10
Petera, 1.
Joseph Fearon died seized and possessed of
tbia tract of land, at Phlladelphra, In April,
1810. His heirg and legal rcpreaentatiTea were
Lha children of his two brothers, Abel Fearon,
and William Fearon; both Abel and William
JwrinK died in the lifetime of Joseph Fearon.
I4«*] 'The children of Abel Fearon were Rob-
Brt Fearon, of the city of Philadelphia, since
iaeeaeed; Joseph Fearon, of Northumberland
□ovnty, Pennsylvania ; Sarah Fearon, sinoe
iBtwmartied wtth Christopher Scarrow, resid-
lag at the time of the death of Joseph Fearon,
ta England; Elizabeth Tax, afterwards inter-
BAnied with Joseph Fox, then residing in Fng-
lAud, and afterwards in Philadelphia. The
JiUdren of Williain Fearon were, John Fearon,
rormerly rending in Centre County, Pennayl-
iwila, since deceased; William Fearon, also
rcfliding in Centre County; James Fearon, re-
dding ia Philadelphia! Sarah Fearon, inter-
t Xh«A.
married with Robert Qn^, nalding la Ljeoai'
ing County, Pemuylvaiiia; and Nancy Fearm,
intermarried with Saffiu«l Browo, residing la
Centre County, Pennsylvania. By deed of
their part, partition of the real estate of Joseph
Fearon, between the two branches of tbe tam>
ily of Joseph Fearon; and by that deed, the
tract of land for which this ejectment waa
brought, No. SGIS, waa allotted, inter alia, to
the heira of Abel Fearon. The deed of parti-
tion from the heira of Abel Fearon to the hein
of William Fearon was executed on tbe I2th
March, 1826, by Joseph Fearon, in person, And
by Elizabeth Fearon, and Christopher Scarrow,
and Sarah, his wife, by power ol attorney to
John Curwen, and John Wilson. Tbe power of
attorney was dated on the 11th day of Febru-
ary, 1811. Tbe privy examination of Mr«. Scar-
row to the power of attorney, waa not taken.
On the 13th November, 1827, a partition waa
made by the heirs of Abel Fearon, by which
partition of tbe part of the estate of Joseph
Fearon, conveyed to them by the heirs of Wil-
liam Fearon waa made. The deed of p«rtition
was executed by Joseph Fearon, Jacob Fox, and
Elizabeth Fox, in person, and fay Christopher
Scarrow and Sarah Scarrow, by their attorney,
Nathaniel Nunnelly. The power of attorney to
Nathaniel Nunnelly was dated on the 2Sth June,
1S28, without the privy examination of Ura.
Scarrow. This power of attorney was ratiSed
and conSrmed. with tbe privy examination of
Sarah Scarrow, on the Sth September, IS32, hy
Christopher and Sarah Scarrow. The prem-
ises for which the ejectment was instituted
were by these conveyances and conflrmatios.
Tested in Joseph Fox and wife; who, by deed
of I6th April, 1S30, conveyed the same to Ben-
jamin E. Valentine, from whom they after-
wards came, by regular conveyances, to the
leasOT of the pJaintiO' in the ejectment.
■The ijUintiff in error, the defendant [*S4T
In the District Court, claimed tbe tract of land
for which the ejectment waa brought, under a
sale of the ssme for county and road taxes for
the year 1S26, nude under the laws of Pennsyi-
vania, amounting, together, to one dollar and
ninety-five cents. The county tax was asseeaed
prior to the lit of February, ISZfi; the road tax
waa assessed on the 29th April, 182S. On the
12th June, 182fl, tbe tract No. 661S waa sold
to the defendant for the sum of five dollars and
fifty-two cents, the amount of the taxes and
the costs; and on the IGth Juiy, lB2fl, the same
was conveyed by deed to tbe defendant, by Ml.
Brown, treasurer of tha county.
The plaintifl^ below, to overthrow the tax
title of the defendant, gave in evidence an offer
to redeem the property sold for taxes, which
offer was made by Robert Quay, Jun., acting
for and under Uie directions of his father, Rob-
ert Quay, Esq., within two years after tbe tale
for taxes. The treasurer of the county refused
to receive the amount of the taxes from Robert
Quay, Jun., so representing his father, Robert
Quay, Esq., alleging that Robert Quay was not
the owner of tbe land, and that by the law of
Pennsylvania, no one but the owner or his au-
thorized agent, oould receive tend sold (or-
iiia
M
SunEUK Cotnn or the Unttkd STA-m.
Hm mum waa tried in October, IS30. aod ft
*erdi<:t waa given for the plaintiff, under tlie
charge of the court. The defendant excepted to
the charge of the court, and proueciited this
On the trial of the cauie id the Di«lrict
Court, the counsel for the plaintiff in the eject-
ment reouestcd the court to charge the jury;
let. Tnat the tan authorizJng the redemption
of lands Bold for taxes (viz., the law of Pennayl-
Tania, pasaed tba 3d of April, 1804, and ita sev-
eraJ aupplemeota) ought to receive a liheral and
twnign coDBtniction in favor of those frhoa« ea-
tale will be otherwise devested.
2d. That under the said law any person haa
ft right to redeem unseated lands sold for taxes,
by a payment of the tax, costs, and percentage,
within the time named in the aaid acts.
3. That any person having, or btlieving him-
self to have, au interest in the landa so sold,
haa a right to redeem the same within the time
named in the said acts.
4tb. That any person having the charge of
■uch lands from the owner during hia life,
after hia decease, infoatata, and without a coun-
termand of auch charge, liaa a riglit to redeem
•uch lands so sold.
J48'] •6lh. That any person being a tnn.int
in common of the land so sold, has a riglil (o
redeem.
6th. Tliat the deed of partition, dated the
2flth March, 1825, in evideiire in thia cnuae, clUI
not take effect as a deveatiture of the cslale of
Bobert Quay and wife in the land claimed in
this ejectment (tract No. 8616), until the same
was consummated by its ratification by Cliris-
topher Scarrow and wife, by their dcd, on the
8th September, 1832; the said Robert Quay, in
right of bis wife, was a tenant in common of
the said tract No. 5015, and had a right, in
May, 1B2S, to redeem the same from the sale
for taxea.
7th. Ttiat the refusal of the treaaurer to re-
ceive the redemption money for lands ao sold
for taxes, ia equivalent to and dispenses with a
tender of the same.
The court instructed the jury as requested in
the ptaintilT's flrst proposition. The instruction
astted in the aerond proposition waa refused.
On the third proposition the court aaid; Any
person having an interest in land so sold, hag a
right to redeem the same within the period
named in the act; hut a mere opinion, without
right or having an interest, confers no power to
redeem.
The court refnaed the Inatructton asked In
the fourth proposition, and in answer to the
fifth proposition said: A tenancy in common.
or any other interest In the land, legal or equi-
table, conrers a right to redeem. The court
gave the instruction asked in the sixth and
•eventh propositions.
Th« counsel for the defendant requested the
eourt to instruct the jury as follows:
1st. That by the legal construction of the
several letters of attorney, and the ratifications
and conflrmations thereof, and of the various
deeds given in evidence in the trial of thia
cauae, Robert Qliay, at the period of the sale
of thia tract of land to A. H. Hepburn, and at
the time the alleged offer to redeem was made;
htd, neither In law nor in equitf, » right to the
poaspsalon, enjoyment, or ownership, or ■ rlfll
of entry to the land in controversy; and cooU
not make a legnl offer to redeem which would
avoid the title of the defendant, unlesa he wii
the authorized agent of tne owner.
2d. That the partitions of 1825, being ext-
cuted by the duly authorized attorneys in fsrt
of Christopher Scarrow and wife, and Eliza-
beth Fearon and Joseph Fearon, repreaentatirra !
of Abel Fearon, in conjunction with the heir*
of William Fearon, and possession hariog bee* j
'taken in accordance with the deeds, are [*S4I
binding on all the partiea, and valid.
3d. That, at all events, said partition was
binding on Sire. Scarrow during her coverture,
and could only be avoided, if at all, by her or
her heira on the death of ber husband, no othtT
person having the right to object thereto; ajid
she having ratified and confirmed it during cot-
erture, the plaintiffs, or Robert Quay, ranaot
impeach the validity of the said partition, «a M i
the date of 12th March, 1825.
4th. That it ia not necessary for ft feme
covert to acknowledge an agreement, or power
(o mnke partition, under the act of the Z4th
t''ebriiary, 1770, of lands which descend to bei
in Pennsylvania, where the partition ia equal at |
law; being compelled to make partition, bm can
nth. That Quay, and Fox and wife, and their i
alipnces, are estopped from questioning tba
validity and consummation of the partitions ii
1826, by their execution and deliverj of th«
various deeds and letters of attorney given ia
evidence on the trial of this cause. ,
Qth. That the denial of the agency ftnd own-
ership of Quay, by Fox, and his rigbt tn re-
deem, if the jury believes Harris's testimony, i*
conclusive; and precludes him, or his ftlieoeea,
from subsequently claiming any right by or
through the acts of Quay or his aon.
7th. That on the legal eonstruetion of tba
Act of 1815 no person has a right to redecK
land sold for taxes hut the owner, his heirs or
assigns, or legally authori7.ed agent or repre-
sentative. If the jury believe that Quxy was
not the owner, or the agent of the owner, tbt
alleged offer to redeem made by him or his soa
is of no validity, and the plaintiff cannot r«-
8tb. That if Quay did not make the allied
offer to redeem as owner, or agent of the owner
of the land, but in fraud of the owner's right,
and for the object of benefiting himself by
taking the timber off and obtainin;; a richt ta
the land, It would not devest the title of tne de-
fendant.
9th. That the offer to redeem must be ft legal
tender, unconditional and unrestricted : and if
the jury believe the testimony of Robert Quay,
Jun., no such legal tender was made; nor was
it such an offer and r?fuaa! as would bring IMs ,
case within the saving clause of the 4th aeetioa
of the Act of the 13th March, 1815.
lOth. That from the testimony discloaed tba
taxe»' for which the land was sold were asansed.
and thiit the deed from tbe treasurer to the de-
fendant *on the face of it vesta in him [•*••
a complete title to tbe Isnd in eontroveray.
1 1th. That if the jury believe the tesIimoBy
of Robert Quay, Jun., and of Joseph F. QoaT.
neither of them were tbe agenfai of Jacob Fob.
I the ti-Kct of land in diiput*. TlieriforB,
tlw pliJntifr* cannot recover.
Tm court refused to give tba Aral tnitructfon.
A» to tlie lecond propoaition, the court said:
Bo far ai it U neccBaarj to the issue on trial,
tlM legal effect of the psrtitlon of 2Eth March,
182S, IB noticed in answer to the sixth inatnic-
tion of the plaintiff*! counsel. The deed of
partition of the 12th of March, 1B26, and tba
poareasion which it la alleged was taken in
accordanea with the deeda, cannot vary that In-
atruftion.
A» to the third instruction, the court said:
The Supreme Court have in effect decided thJB
Soiut. Mrs. Scarrow'a interest remained iin-
tvided until the deed of conflrmation in 1932.
The partition of March, 1826, traa not binding
on her until then; and althoueh Robert Quay
and wife cannot Impeach its validity, they held
until then an undivided interest in the land in
The court refused to gire th« fourth Instrue-
tioQ, on the authority of the decision in 10
Peters, 22.
Aa to the fifth inatrnctlon aaked, the court
a*ld: Quay and wife, and Fox and wife and
thdr alienees, were estopped from questioning
the validity of the partitions of 182S, after they
were legally accepted by all the parties tc
them; and the vanoua deeds and letters of at-
torney derive their validity from that ac-
ceptance.
The sixth instruction was refuted. Aa to the
•eventb and eighth Instructions, the court said;
A redemption of land sold for taxes, under the
Act of ISIS, can only be made by the owner,
hia heirs or asstgna, or legally Buthoriied agent
or representative, or by a person actins for the
owner, with his subae<juent ratiflnatioa. If
Quay was not the owner or part owner, or the
agent of the owner, the alleged offer to redeem
made by him or his son, not so ratified, has no
validity; and the plaintiff In such case eonld
not recover. But Quay's interest in the land
waa not devested at the time he caused an offer
to ha made to redeem; and that offer cannot,
therefore, be legally regarded as in fraud of any
person's rights.
mnth: The offer to redeem must be of the
nature here atated; but from the testimony of
Robert Quay and other witnesses to the same
S61*] 'point, the tender made was sufficient,
under the saving clause of the Act of March,
ISIO.
The tenth instruction waa given, as waa alio
the eleventh, except tlie concluding words,
*^herefDre, th« plaintiff cannot recover."
The ease was argued at large on all the points
pnaanted hy the bill of exceptioni, orally, by
Mn 8. Hepburn, and a printed argument by
Mr. Patter for the plaintiff <n error; and by
Mr. Tilshnun and Mr. Anthony, on a printed
argument, for the defendant. The opinion of
the court having been oonRned principally to
tma point, it has not been considered necessary
to report the whole of the arguments of the
counsel for tlie plaintiff or the defendant.
The counsel for the plaintiff in error pre-
sented the following points to the eonrt:
I. That Bobert Quay, at t)M time of thaal. ■
t If. «d.
nadar tha legal e
the two deeda of partition, between tha
heirs of Abel and Wlliam Fearon, and the ral-
iflcatlona and eondrmatloaa thereof, and of tha
various deeda and artidea of ureenant gives hi
evidence, could aot inake a Kgal offer to i^
3carrow during coverture, and eooid only ba
avoided by her or her helra on the death <^ her
husband, who Is yet in full life.
8. That is is not necessary for a feme corett
to acknowledge an agreement or power to maJn
partition, under the Aot of the Mth Fel>niary,
1770, of lands which descended to her in Penn-
sylvania, when the partitioB it equsL
i. That Quay and wife, and Foi and wife,
are estopped from qnettloning the validity of
the partitions of IS2S, by their execution of tba
several deeds, etc., given in evidence.
5. That the deniM of the agaDcy and owner-
ship of Quay, and of bis right to redeem, by
Fox, is conclusive on him and his alieneeai
and precludat them from claiming, aubaequent
to such deiual, any right of redemption by or
through tha acta of Quay and his son.
B. That the court below erred in their an-
swers to the 1st, 2d, 3d, 4th, Sth, 6th, 8tk and
9th point* submitted.
After aUtlng that the facta embodied In the
record of the present case preaented new and
distinct considerations for the court, from tbosa
embodied In tlie record of the former trial of
this suit between the same jiartiea, Mr. Ha^
bum proceeded to state the title of the defend'
ant in error, and ahowed that title, traced from
Joseph Fearon *the elder, who waa ["SSI
the original warrantee of the Commonwealth
of Pennsylvania, down through the different
divisions and partitions of the real estate of
Joseph Fearon, deoeaaed, amongst his hdrs-at-
iaw, to the defendant in error. He then pro-
ceeded to state the title of the plaintiff In error
(the defendant below), which waa derived from
the treasurer of Lycoming County by deed
lated 15th July, 1B2S, under a sale of the tract
of land In question for taxes, due and unpaid,
previous to such sale, nnder the previsions <4
the different aets of Assembly in relation to tlie
sales of unseated lands in Pennsylvania. Ho
referred to the different act* of Assembly ao-
plicnble, and contended that in t«rms the right
of redemption attempted to be set up bv RolMrt
Quay, In May, 1828, was snauthonseo by the
provisions of those acts, and oonld not daveat
the title of the purchaser acquired by Um un-
der the sale. And after reviewing the faete la
relation to the situation and rights of the aev-
oral parties in interest under the different deeds
of conveyances, partitions and confirmations
thereof by the different parties In Interest, to-
gether with the facta In relation to tbe alleged
offer to redeem the land sold by Hobert Quay.
Mr. Hepburn aasumed the following gwnml
propositlona for tbe consideration of tne eourti
1st. Whether, nnder the facta dlsoloaed br
the record in this ease, upon a proper eonstma-
tlos of the different acta of Assembly of the
State of Pennsylvania in relation to the sale of
unseated lands for taxea, Robert Quay had aueh
an Interest in the tract of land in dispute (No.
iWlS) at the time of the aale of tt for tha tazaa
hr tba traMunr of looming Ommtj, m tto
Ills
12th of Jnne, 1826, or at tbt tiino the Mmi
offer to redeem waa made by hit fon under bis
dlnctiona, in May, 1828, aa brought him within
the aavinK proviiion* of the fourth Mction of
the Act of 1B16, and authoriied a tender of the
redemption money hy him. In other words,
waa Quay the owner, or agent of the owner, of
the tract of land in dispute, on the 12th of
June, 1820, or in May, 182Bt
Sd. V/u the tender euch u ia eontemplated
li^ the Act of 1816, vie, a "legal tender;"
and bsH ft been followed np by the defendant
In error (plaintiff Iielow) eo aa to enable him to
claim the l>enefit of It In thia auit I
3d. Can the defendant in error, undv
facte diecloeed by the record, take advuitage
of the tender of the redemption money by
Quay or his ion (if the court should be of
opinion there was a lenl one), contrary to the
expresa diaaent of Jacob Fox, the owner at the
S6S*] 'time, and when be had given the
treasurer notice that Quay had no right to the
land In controversy, and when he had after-
wards approved the act of the treaaurer in bia
refusal of the tender made bv QuayT
4tb. The construction of tne acts of Assem-
bly of the State of Pennsylvania in relation to
the sale of unseated lands for taxes by the Su-
preme Court of Pennsylvania.
Under the Brat proposition Robert Quay had
no pretensions of ownership to the tract No.
6616: in point of fact be expresalT eays ao in
hja own deposition ; tells others he aaa no inter-
eat aa owner; theae facts are fully proved by
the record. He never pretended that he waa
the agent of the owner, and Fox has been
equally explicit in his denial of Quay's agency,
in relation to this alleged tender. These facta
■re also apparent upon the record.
Were the partiea to the different deeds em-
bodied in the record mistaken aa to their
rightsT And had Robert Quay, in oonterapls-
tion of law, sucb an interest aa owner or part
owner of the tract of land in dispute, as au-
thorised his tendering the redemption money I
If the partitions of I2th and eetb of March,
1826, were perfect, and vested the estate of the
grantora in the grantees of those deeda, the
question la answered. And we say they did,
without the separate examination of Mrs. Scar-
row, in accordance with the 2d section of the
Act of 24th Pebmary, 1770.
This section changed the common law mode
of conveyance, and was intended to suf^ly the
place of fines and recoveries. But it does not
embrace the case of partition of lands which
descended under the inteetate laws of Pennsyl-
vania. "Tis true that lands descend to the
heirs -at -law in Pennsylvania, as tenants in
eommon, but with scarcely an incident con-
nected with that kind of an eatate at common
law: they are tenants in common in pursuance
of the statute rwulating deacenta in Pennsyt-
Tania, and are placed more upon the footing
with coparceners la England, or at common
law, than any other deacription of tenante of
Tenants In common, at eominon law, were
not compelled to make partition of their es-
tatea; they alwaya derived their title by pur-
ehaae. Hence, liyery of seisin waa necessary to
r*at UMJr estate, and the aame notoriety waa
nqnind t» deveat It knd veat in thair grantee.
Mot ao witk oraareanen at eannMa h*,
nor with the estates of those derived nad*
our intesUte laws. They both take by descHti
'the law caats the estate upon them all [*St4
equally, and they are alike In the poaaeadsK
It never was pretended that levying a fine, m
suffering a common recoverv, was neeeaaaty la
vest the estate absolutely In a grantee eogn-
cener of lands allotted to them in partition it
their estates, because the partition only adjut* i
the different rights of the parties to the ptwsM
slon; neither take by purchase. Tia less tbaa
a grant, and neither amounts to, nor reqntns
an actiial conveyance. Alnatt on Partitico,
124, 126, and authorities there dted.
An iiifaat is compelled to make partltica.
lb. II. A prochein ami may do it for him.
lb. 12.
Parties are compelled to make partition ss
welt under the statute of descents as at eoD-
mon law, and may do It amicably. Alnatt eB
Partition, 9; Co. Litt. 171, a, Hargrave, note:
Long V. Long, 1 Watt's Hep- 265, 268, 280; 1
Penn. Rep. 124; Harrington et aL v. Clarl^ )
Burrows It. IBOl.
A parol petition, followed by a correspond-
ing separate possession, is good in Pennsyl-
vania. Bbert v. Wood, I Binney's Rep. 2la A
parol partition waa eood at common law be-
tween coparceners. Littleton, aee. 252; S Ce^
Lit- 169, b.
A guardian in Pennsylvania, thougll BOt
vest«d with a scintilla of either lenl or equita-
ble estate in the lands of his wara, may make
a consentable line, and mark the boundaries of
his land with an adult, which will be Unding.
10 Bergeant Jt Rawie, 114. And a partitioe
is nothing more than a mere designation of
boundary^ it passes no interest in the estate to
the grantee other than that originally held.
The parties in this caae had done nothing mors
than they would have been compelled to ds
upon the application of either party to the
proper court. He referred to practice in Or-
phsJl's Court of Pennsylvania, as well as that
of Common picas, where partitions of estates
e made on application of husbands alone, tie
ivea not parties,
But the Supreme Court of Pennsylvania hava
given a construction to the Act of 24 Feb.,
1770; and say, in so many words, that the ac-
knowledgments of femes covert are not neces-
sary In cases of partition. 3 Rawle'a Baa.
42D. This decision, if recognized by tUs
court, puts an end to any difficulty that niij
be urged for the want of a proper acknowledg-
ment. The statute is a local one; and this da-
cision has at least become a rule of property in
the State in which It was made, and aa awA
recognized by this court. The case ia analo-
gous to the one before the court.
*If this decision is disregarded by thia ['SKft
irt, the partition was at all events bindiu
upon Mrs. Searrow during her eovertore, aa<i
could only be avoided by her after the death tl
her husband, or her heirs after her death. The
deed waa not void, but voidable at moat, oaly
as to her or her heirs. Cowper's Rep. SOI; I
Watt's Rep. 367. The eonveyaiue ia net
void, but the grantees fail to produee the pro^
er kind of evidence of the executim of it: aad
so long as the claim of Mrs. Searrow ia ikH aa-
serted, the whole estate passed to tbe graaUH
Ig38 Hbfbuki* 1
In thoH deeds, aubject onl; to her right of re-
tntry (Allnatt on Partition, 22; Co. Lit. 170.
b.; Preston on Abatmcli of Title, vol. i. page
334, 336; Z Kenf» Com. 133; Claneey or
Uightt, 161, 1C2), and did pass to thrm as of
their dates. Conceding this right to Mrs, Scar-
row, or her heira after her death, can the par-
lies to those deeda whose cxeeutton of them was
perfect, deny the validity of tlieir acts, and
t*Le advantage of her privilege? Certainly not.
Though the deed may be voidable as to her
(which we deny), ft is valid and binding upon
■11 the others, and they cannot pronounce it in-
valid. B Crunch, Rep. S8; 1 Kent's Com. 414;
2 Sergeant & Rawle, 383, 387, 390; 10 Sergeant
4, Rawle, 117; 1 Watts Rep. 2W. If the
other parties interested in this partition cannot
take advantage of the alleged defect, and the
piivilege is a personal one to Mrs. Scarrow, can
she now take advantage of HT A recital of the
facts on the record is a solution of this inquiry.
She has done all in her power to confirm the
estates of all the parties in interest. Confirm-
ing acts of the Legislature of Pennsylvania,
remedying defectively acknowledged instru-
ments, are not uncommon. 10 Sergeant A
Rawle, 101; Act of 3d April, 1826; Statutes of
Pennsylvania, 187, 188.
The construction given to those statutes uni-
formly has been, not that the conveyance was
void, hut that the evidence was defective as to
its execution. And suppose the fact of the ex-
amination actually to have taken place, but not
embodied IQ the certificate of the officer, the
deed would not devest the right of the feme
covert, because the party could not prove by
any other testimony than the acknowledgment
itself the fact of its having actually occurred.
When the Legislature, therefore, dispense with
that form of proof, the title is perfect as of the
date of the ortginsl execution of the instnt-
ment. 18 Sergeant A, Rawie, 35; 1 Watta'
Bep. 330; 10 Peters's Rep. 1.
The rstiflcation must operate as a devestiture
of the interest of Jlrs. Scarrow, by relation to
the date of the deed of 12th March,
S56*] "1826, or the plaintiffs below, defendants
in error, cannot suatain this suit. 6 Binney, 454.
Their title is derived through these deeds, and
the suit instituted two years before the rati-
fication of Mr«, Scarrow; and If by relation it
enables them to sustain this suit brought in
1830, certainly it is good for every other pur-
DCBOU. IH
and John Wilson, under which the alle^
partition waa made, will ahow it contained no
authority to tham to make either a partiUon or
an exchange.
It recites that they and their brother, and the
children of William Fearon, deceased, are tbe
next of kin of Joseph Fearon, their deceased
uncle, and as such, "they, the said Chriatopher
Scarrow and Sarah his wife in ber right, and
Elizabeth Fearon, have together, with tbe aafd
.Joseph Fearon, their said brother, and tbe chil-
dren of the said William Fearon, deceased,
become seixed or possessed of, or otherwise
welt entitled to divers messuages, lands, tene-
ments, plantations, property and possessions In
the province or State of Pennsylvania afore-
said, and elsewhere in Nortb America aforesaid,
late the estate of the said Joseph Fearon, de-
ceased, and all other the estate and effects
whatsoever which be, the said Joseph Fearon,
died possessed of, in certain parts, shares and
Fearon, being minded and desirous to procure
the actual seizure and possession of their said
respective parts, shares and proportiona of the
said meaauagea. lands, tenements, plantations,
properties and possessions, and to sell and dla-
pose thereof, and convert the same into money,
and to settle the 'accounts and affairs [*35I
of the said Joseph Fearon, deceased;" they
then proceed to constitute the said Joseph Cur-
wen, John CurweD and John Wiieon, Jointly
and severally, "as their attorneys and attor-
ney, and to and for each and every of their uae
and benefit, to enter into, along with, or with-
out their said brother, the said Joseph Fearon,
and the children of the said William Fearon,
deceased, and take possession of each and every
of their respective part*, shares and interest <rf
and in all and singular the said messuages,
lands, tenementa, plantations, properties and
possessions in any part of North America afore-
said, or any iaiknd contiguous thereto, wherein
The argument on the remaining propositions
is omitted tor the reasons already stated.
Mr. Tilghman and Mr. Anthony, for the de-
fendant, upon the questions preaentcd as to the
operation of the deeds of partition, argued:
It is alleged by the counsel for the plaintiff
In error that it is not necessary in Pennsylvania
for a ffme covert to acknowledge a power of at-
torney to make partition, under the Act of Mth
of February, 1770, of lands which deacended to
her, when the partition is equal; and on this
point they have cited Rhoada' Appeal, 3 Rawle,
420, decided March 30, 1832.
To this there are several satisfactory an-
swers. The first is that the question does not
■rise in the present case.
A careful examination of the power of attor-
ney, dated llth February, IBll, from Chriato.
phcr Scarrow and Sarah his wife, and Elisa-
C(h Pasmn tfi .Inwnb CiiTwen. John Curwen.
Fearon, or any of them have or hath any estate,
right, title or interest, as two of the next of kin
of the ssid Joseph Fearon, deceased, or other-
wise howsoever. And also for them, the said
Christopher Scarrow and Sarah hia wife, and
Elizabeth Fearon, and in their each and every
of their names, or in the names of them, the
aaid Joseph Curwen, John Curwen, and John
Wilson, or any of them, as their or any of tbeir
attorneys or attorney, to put up and expose to
sale (along with or without the consent of th«
said Joseph Fearon, their said brother, and tbe
children of the said William Fearon, deceased),
either in public auction or by private contract,
as they, the said Joseph Curwen, John Curwen,
and John Wilson, or any of them shall think
proper, all their, and each and every of their
respective shares, parts and interests, of, and In
all and singular the said messuages, lands, ten-
ements, plantations, properties and pusaesaions,
with the atock, cattle, implements, tools, uten.
sils, furniture, effects and other things thereto
belonging, and to sell and contract, and agree
to sell, their, and each and every of their es-
tate, right, title, share and interest of, and In
the said the several premises, either entire or ia
parcels, to such person or persons, and bis or
sn
BvvmE OouBT OF TBI Uimm SxAna.
tbdr liain, •zocnton, Kdiiilniitra.ti>n mnd ••-
aigDB, M BhKll cantrftct or agree to become pur-
chaaw or purchasers thereof, or any part oi'
parti thereof, for such price or prices u they,
tbe said Joseph Curwen, John Curwen, and
John Wilson, or any of them shall, together
with or without the said Joacph Fearou, and
the uid children of the said William Fearon,
think propfcr to accept for the sams. And in
punuance of the contract! to ba made for the
Mie of their said parts, shares, utatei and inter-
eata respective!;, of and in the said several
premises, for them, the said Christopher Scar-
Tow and Barah his wife, and Elizabeth Fearon,
and each and every of them, and in their each
SOB*] and every of "their namea or ~
in their or an; of their own proper
name, as their attorneys or attorney, and a«
thdr and each and every of tbeir act and deed,
to sign, seal, deliver and esecute all and every
suoh deeds, oonveyaneea, Inatruments and
writings, as shall or may be requisite or necessa-
ry for conveying and assuring their respective
parts, shares and Interests of, and in the said
•everal premiaes; and every or any part or
parts thereof to the person or persons, and his
or their heln, executors, administrators and as
signs, who shall contract or agree for the pur-
chase thereof, or of any part thereof; and to
recdve the money to be paid by tbe purchaser
or purchasers of the aald several premises, or
any part or parts thereof. And on receipt
thereof, for them, tbe said Christopher Scarrow
and Sarah his wife, and Elizabeth Fearon, and
each and every of them, as their each and every
of their attorneys or attorney as aforesaid, to
sign, seat or deliver an^ receipts, releases or
other acquittances or discharges for the said
purchase money; and also for them, the
Christopher Scarrow and Sarah Ui wife, ana
EliubeAh Fearon, and in their each and every
of thdr namea or name, or in the
name of them, the said Joaeph Curwen, John
Curwen, and John Wilson, or any of them in
their each and every of their attorneys or attor-
ney aa aforesuid, to contract for, tnake, do, sign,
Mai, deliver and execute all and every deed.
Instrument, writing, contract receipt, agree-
ment, matter and thing whatsoever, which
shall or may be requisite or necessary for com-
pleting the sales and conveyances aliove men-
Honed, and for accomplishing the several pur-
poses aforesaid, or any of them."
In all this there is not a trace of any autbor-
ity to make either a partition or an exchange.
The parts, sbares and proportions were such aa
they became entitled to, together with their
brother, and the children of William Fearon.
It was these fMuts, shares and proportions that
the attorneys in fact were to take possession of
and to sell. They were undivided parts, ahares
•ad proportions, such as existed in Sarah Scar-
row and Elitabeth Fearon, as tenants in com-
mon with the other heirs of Joseph Fearon, at
tbe date of the power. Surely, it will not be
emtended that tne attorneys in fact were to
t^e possession of a portion allotti^tl fn sever-
alty to Sarah Scarrow, and to hold this several
possession, along with her brother and the
Mirs of William Fearon. So with respect to the
•ale.
The intention waa, •• the words are, to am-
fer a power to take poMewioB of, and U. aell
only the undivided rl^t In thia rt«w d is
'intelligible and consistent, and in no [*Sftt
jiher way tan the intervention of the brother,
.ind tbe heirs of William Pearoo bo recvn-
dled.
The word partition, or exchange, la not to be
found in the instrument; yet nothing could bt
more natural than to use the word, if the thing
was intended. This argument derives addition-
al strength from the fact that when, on the 35ti
June, 1828, Christopher Scarrow and wife ex-
ecuted a power of attorney to Jacob Pox, and
Nathaniel Nunnelly, to make partition of the
estate of Joaeph Fearon, the appropriate words,
"partition and divide," are repeatedly used.
Iliere might be excellent reasons why tbe
two Curwena and John Wilson should be trust-
ed to sell an undivided right in this estate, and
yet not be trusted to make a division of it. Tbe
property waa scattered over a wide range in
Pennsylvania, near to and among the Alle-
gany Mountains. A part of it waa in Virginia.
The attorneys in fact resided, two of them ia
Philadelphia, and the other within twelve miles
of that city. Several of the tenants in common
lived in the vicinity of the lands in Lycoming
and Centre counties, Pennsylvania. Under
these circumstances, the information poaseaacd
by the parties could scarcely be equal; and it
certainly waa prudent, at that time, not to con-
fer a power to make partition.
The sale authorized by this power waa for
money, and it was only on the executicpn of a
contract and receipt of the money under it, that
the attorneys were to execute any release, or
other conveyance. The release executed by
them was without any other consideration than
a quantity of land, estimated equal in value to
that conveyed. It was not a partition either ■■
law or in fact; but a proceeding unwarranted
by the power, attempting to divide the wh<de
real estate into but two parts, when there
were nine hein, without allotting an; partic-
ular purpart, either to Mia. Scarrow or an; oth-
A power to sell does not authorize a partitim.
1 Medd. ei4; 2 Sugden on Powera, 606; 10th
vol. I*w library, 273.
Another objection to the instrument called •
partition, dated 12th March, 1825, is that it
purports to be Executed by theattomeya in fact
of Elizabeth Fearon. Whereas Elixabetfa Fra-
ron was married to Jacob Fox in the y^ar
1812; and in 1825 was a feme covert, and had ao
been for thirteen years before tbe alleged parti-
Her husband, Jacob Fox, waa, in 1825, t«B-
ant by the courtesy, at least, initiate; yet be ia
~~ party to the instrument.
Ab marriage is equivalent to the dvil [■&««
death of the wife, we submit that neither Elii-
abeth Fearon (then Fox) nor her huabaud was
bound by the releaae.
For these reasons, we contend that the povn-
of attorney of the 11th February, 1811, nevct
authorized any partition; and that if it did ao^
still it was not well executed. IS either of thwe
points ia with us, the question cannot, in *fcif
caae, be material; which, after tbe deciaioa al-
ready pronounced, onr antagoniata agmia ca-
deavor to bring Into doubt b; asserting that the
real property of a married woman may, mder
th* lawa of Femuylvania, paaa under '■ powvr
Petem II.
&BPBtiut T. Dubois.
if ■ttom^ azaeuted hj h«r In Bngluid, and
HLTiDK neither ■ priTLte ezsmtiutioD, or ac-
Lnowlrdgment of any kind, before ft judicial of-
leer. For this doclnne, tliej found themsptves
ipon the raaea of Rhoada's Appeal, 3 Rawle,
120, and Tate et ui. t. Stooltzfoos, IS Serg. t
lawle, 35, the application and Iiiodlng elTeet of
vhieh we will proceed to discuM.
A* tbe case in IS Serg. & Rawle, 3S, can be
'cr; ahortlr disposed of, it will be first noticed.
t decides that "the omission to atate in the
'ertificate tbe acknowledgment of a release by
lUBband and wife, that tbe wife was separately
!xa.mined, is cured by tbe Act of 3d of April,
!R26. The land was in I^ncaster County,
l^ennsjlTsnia, and an acknowledgment of the
clease was made by tbe husband and wife on
he 28th May, 1796, before an aaaoci ate Judge of
.he Court of Common Fleas of that county,
riiia Act of 3d April, 1826, will be found in
l>urdon'i Digest, 6th edition, page Z6D, 261.
It was a retrospective, and retroactive law.
iuch legislation Is always shortsighted and
*eak in policy, and sometimes wicked in de-
lign as well as effect. Judge Duncan, in de-
ivering the opinion of tbe court, admits "thst
.he retroppcctive powers of this act were to be
tonstrued strictly, and that every law of this
1 at lire is to be construed with strictness, and
lot extended by equity beyond the words of the
itatule," etc.
Now, both the preamble and the enacting
:lause of this statute apply only to cases where,
1st. There has been an acknowledgment hy the
lusbaod and wife. In tbe present instance,
.here was do acknowledgment whatever. 2d.
The acknowledgment must be "before some
udge, justice of the peace, or other officer au-
:horized by law within this State, or an officer
n one of the United States, to take such ac-
cnowledEment." In the present instance, the
xiwer of attorney was executed without the
Jnited States, and never acknowledged.
tCC] Therefore, both the retrospective law
lud the decision fall to alTect us.
Next, aa to Rhoads's Appeal, 3 Rawle, 420.
rhat case arose under an amirabte partition, in
>aiB, among the parties. The devisees agreed
.hat certain persons named by them should
livide their land for them; they accordingly
*ent on it, and did appraise part, and divide the
and, and allotted to each devisee bis purpart,
rhe several devisees took actual possession of
heir shares, and occupied, improved, and, in
lome instances, sold their parta. In delivering
;he opinion of the court. Judge Rogers says:
'When we couple the words of the deed with
^he acts of the parties, in taking possession of
;heir respective proportions in the sgraement,
improving and selling parts of the same, tbe
ntention cannot be mistsken;" and again, 'in
Itartition in the Orphans' Court, tbe wife is not
iiade a party; the order is made on a petition
ly tbe husband, and in right of his wife." 3
Rawle, 43S.
Py referring to the adjudicated cases in Penn-
lylvanja, it will be seen that even a parol gift
>f lands by a father to his son is good, when
possession accompanies and follows, and when
improvements are made by the son on the land,
m consequence of the gift. It is tbe delivery
if possession, and expenditure of money or labor
in coQsequenoa of the gift, that tskea It out of
• L.M.
the statute of frauds. Stewart r. Stewart, t
Watts, ZB3i Bckert v. Eckert, 3 Penn. Rep. MB.
These cues review the doctrine in Ebert v. Wood,
1 Binn. 218, and clearly show that the sub-
sequent separate posse a si on and improvements
make the gift valid, and take it out of the act
for preventing frauds and perjuries. 21st March,
1776, Purdon's Digest, 408.
Another mode in which married women may
make iMrtltion, Is under the Act of 19tb April,
1794, airecting tbe descent of real estate (see.
£2), and in case the property cannot be divided,
it may be sold imder the Act of 2d April, 1804,
and thus the wife be devested of her real estate
by proceedings In the Orphan's Court. Thte,
however, is a matter under the supervision and
control of tbe court; who will, as far as pos-
sible, protect the rights and interests of married
women, and prevent any undue advantage be-
ing taken of their dependent situation. In Wat-
son V. Mercer, S Serg. & Rawle, 60, Chief Jus-
tice Gibson deprecates, in strong language, the
inefficiency of our lawa for the protection of
the property of femes covert, and says: "In do
country sre their interests and estate so entire-
ly at *the mercy of their busbandi as in [*3A3
Pennsylvania, and that it is the policy of the
law to narrow the Held of this controlling influ-
ence. The husband has power to obtain her
personal estate, not only without condition, but,
ID some instances, by means of the inteatate
acts, even to turn her real into personal estate,
against her consent." This evil was, however,
remedied On tbe 29th March, 1832, when the
Legislature of Pennsylvania, aware of the in-
justice and oppression frequently practiced on
married women, remodeled the Orphans' Court
law, and secured their Interests in real estate
against the rapacity of unprincipled husbands;
unless they freely and voluntarily relinquished
them before a judge of a court of record, in the
absence of the huaband. See Purdon's Digest,
7S8, Partition, see. 48.
In 1 Milea, 322. Vidal v. Girard, decided
^ptember 10th, lB3fl. Judge Jones refused to
order a writ of sale without a -.vrit dc partitione
fadenda after a judgment quod parlitio Rat,
although the wives and their husbands should
file an agreement to that effect. In that case
he explains the various kinds of partition, and
states that where an action of partition is re-
sorted to, instead of a deed of partition, or oth"
er conveyance, they miiat puraiie the act relat-
ing to that action. If tbe wife convey hy deed
under the Act of 24th of February, 1770. it
must be arknowledged in a periiliar Form. Her
deed is void at common law, and in England
can only convey her estate by fine. Sha
ot appi'ar by attorney, huL must appear in
person, or by an attorney appointed by her hua-
band; and Id conclusion, the judge refuses to
waive an^ proceedinn which protect the wife
in the enjoyment of her real estate.
The case of Peter Rhoads's Estate, 3 Rawle,
420, may have been well decided as to the par-
tition then before the court. But it does not
apply to our case of a division exclusively by
deed, where a part of the real estate belonged
to a married woman who never acknowledged
the power under which it was made, and never '
separately examined. The counsel in that
, when arguing in favor of the partitim,
themselves compelled to admit that if the
SllT
SuFUMi Oomr or tbm Uxirn SftAsm.
partition had be«Q unequal, perhapi It might
IM voidable by tha married womaD, though
not Toid. This is enough for our purpose; for
if the partition in May, 1828, wai voidable b;
Mrs. SeatTOw, when Robert Quay made the of-
fer to redeem be bad an interest in this very tract
IMIS, which, if she refused to mukUou the ir-
regular partition, waa common property. Now,
the fact that the division made among tbe vari-
ous hein of Joseph Fearon wa« an equal par-
itS'] tition, ia most adroitly 'aasum&d by the
plaintiff in error. Not one word of evidence
■xista to prove it. When did it become equal,
•Bd In what wayT Not until the 8th Septem-
ber, 1B32, when Mrs. Scarrow, in legal furm,
ratified what had been done.
But in May, 1S28, when Quajr redeemed the
land, there was DO such equality in point of
fact, or in point of law. In fact it never ex-
isted; in law it did not exist until 8th Septem-
ber, 1832. Until that date, she and her hus-
band never knew that any partition or attempt
at a partition had ever been made. There does
not exist any evidence to show they bad
such knowledge. There is direct and clear
proof to the contrary so late as tbe 2Gth June,
1828, which was about a month after Quay re-
deemed the premises in dispute. For, in the
power of attomev of that date from Christo-
Dher Scarrow and Sarah bia wife to Fox and
Nunnelly, they authorize their aaid attorneys
"to malie partition and division of the whole
of the said messuages, lands, tenements, plan-
tations, properties, poessssions and premises,
late of the said Joseph Fearon, deceased, unto,
between and among the said Joseph Fearon
(her brother), the children of the said Williarn
Fearon, deceased, Jacob Fox and Elizabeth his
wife, and tbe said Christopher Scarrow and
Sarah his wife." That is, to divide all the
fropert; amon^ all the heirs. This important
ict is noticed in the opinion of the court. 10
Peters, 21, 22.
Without pursuing the argument further, it is
sufficient to remark that the Oite reported in 3
Rawle (420) ia essentially different from the
E resent, inasmuch as the former was a parti-
Ion in pais, and the latter a partition by deed.
Although the counsel for the plaintiff in er-
ror allege that the power of attorney from C.
Scarrow and wife, and Elizabeth Fearon, to
John Curwen and John Wilson, gave tlicm au-
thority to make and execute deeds of partition;
yet, as before stated, on examination it will l)e
found that there was not a syllable said about
partition therein, nor was there any si'parate
examination of the wife of C. Scarrow. In
pursuance of this supposed authority, Curwen
sunt Wilson, SB well as the heirs of WiUiam
Fearon, proceed to execute deeds of release, in
March, 1826; and recite that "in consideration
of a quantity of land to be conveyed by a like
release, they have remised, released, and for-
ever quitclaimed" tbe lands therein mentioned;
thus demonstrating that a deed of release was
the kind of conveyance, or assurance, by which
the partition was intended to be carried into
Th^ Act Of 24th February, 17T0, sec. 2, do-
>•<*] Clares that no grant, 'bargain and sale
lease, release, feoffment, deed, conveyance, or
■Hurance in the law whatsoever, shall be good
and valid to pass the wife's estate, unless she ia
isas
examined separate and sport from herhviabaBd.
If, then, it be absolutely necessary to have the
separate examination of the wife in all deeds,
releases, conveyances, and assurances whatso-
ever, in order to devest her interest, can it for
a moment be urged that a power of attorney,
wherein a married woman authorizes a peraoa
to release, convey, and assure her lands, re-
quires no such examination: or, in other worda,
that the cannot herself convey her land, except
by an acknowledgment in a peculiar form,
specially provided to guard and protect ber
rights; but if she joins her husband in a power
of attorney to a third person, no such acknowl-
edgment is necessary; and that the third per-
son can "remise, release, and forever quit-
claim," all her estate, and it will be binding on
her to all intents and purposes. It la only
necessary to state such a proposition to expose
Its fallacy. Can ft even be pretended that the
indentures given in evidence are not such kinds
of conveyance as are mentioned in the Act of
24th February, 1770? A deed is a writing
sealed and delivered by the parties. Releasee
~ e a discharge or conveyance of a man's right
lands or tenements to another, who hath aome
former estate or possession; the words general-
ly used therein r^re "remised, released, and for-
ever quitclaimed" (precisely tbe words used in
the Fearon deeds). When one of two eo-
I releaaeth all her right to the other.
this passeth the fee-simple of the whole. > BIk.
Com. 324.
And even if the gentlemen opposed to na call
It a partition, it ia that kind of partition In-
deed mentioned in 2 Black. Com. 323; which
says that it is necessary "that they all mutonlly
convey and assure to each other' the several
estate which they are to take and enjoy sepa-
rately; and not a partition In pais, by going on
the land and amicably dividing it, and each
party taliina possession of his p.oportion, liv-
~ in it, cultivating and improving it. In the
of lihoads's Appeal, the feme covert did not
complain of any uniairness or inequality lathe
partition. It was equal and just, and was at-
tempted to be set asiile by others, in hostility
'- ' - 'nterest, and when she acquiesced tberc-
n the present case, the object of the re-
demption on oehoif of the heirs of Joseph
Fearon, deceased, was to preserve and protect
the rights of each and every heir and to pre-
vent a part of the estate from going into the
hands of a stranger for a mere nominal consid-
eration, and thus compelling all the heirs,
among whom was Mrs. Si-arrow, a temc covert,
to owelty of partition, *as the incum- [*S«S
brance was on the land when the division waa
immated. Burd v. Semple, 9 S. A R.
109, 114; Co. Littleton, 174, e.; 7 Bae. Ahr-
231.
This doctrine is examined in Feather v. Stae-
hecker, 3 Pcun. Rep. 505, in which it is mM
that "every exchange implies a warranty. If
a stranger enter into the purpart allotted t« a
co-parcener, by en older title, she may enter
with the other and compel her to make a new
partition." Idem. 608.
And in Gratx v. Grata, 4 Bawie, 435. the
court say, "there must be a complete redpree-
ity of obligation, benefit and effect, arising froa
the agreement; otherwise it will not be bind-
ing on either. In partition, to paaa the resjpevt*
PM^n I*.
Ekpsdui v. Dubois,
Sroirow cniild take advantage of tbiE defi
the nrknowledjjmeiit of tlie deed of release;
and that as she wbb a married woman liaring
no power to act, nor any privilege on arcoiinl
of her coverture, after two years the title of the
purchaser became absolute. Let ua aak, of
what use to her would b« the avoidance of the
partition long after the title of the purchaser
at treasiirer'a iale waf conaummated 7 She
might demand a new division, becauae her
portion of the estate had been taken away by
■ sale for taxes, which were a lien thereon be-
fore the division ; but she and all the other heirs
would thus equally loae their proportion so
■old, and each tielr would therefore be equally
interested in ita redemption.
In 10 Peters, 22, Mr. Justice Baldwin, In
delivering the opinion of the court in this case
(the facta of whldi bavenot been altered), says:
1 the partition in 1832, Quay and wife
held an undividijd interest in the land in ques-
tion, a* owners thereof in common with the
other heirs of Joseph Fearon." But the coun-
sel for the plaintiff in error aay the court were
wrong; and their judgment is erroneous. Let
lU then inquire when Mrs, Scarrnw first exe-
CHted the power of attorney to Nnthnniel Nun-
nelly, not when she acknowledged it. It ap-
pears by the power of attorney from C. Scar-
row and wife to Nunnelly, that it waa only
nigned and sealed by them on the 25th June,
1828. as their act and deed. So that the re-
demption waa made by Quay more than a
month before they ever signed, or In any man-
ner executed the power of attorney; and if the
private and separate scknowledpmpnt of Mrs,
»68»]* Scarrow were not indiapenanblc, it most
certainly required that she should know of and
assent to the a^rccmpnt to divide the estate, be-
fore it could be legally divided; and that no
act of hers in signing the power of attorney to
Nunnelly after Quay had redeemed the land,
could have a retrospective efTect, and make this
act of no validity. If, then, the power of
Scarrow and wife and Elizabeth Fearon to Cur-
wen and Wilson, was of no avail, or waa super-
seded or annulled by the subsequent marriage
of Elizabeth Fearon to Jacob Fox, in 1812,
thirteen years before they acted under it, there
can be no further question as to Quay'a right to
But it is said that For diselaimed the inter-
ference of Quay, and approved of the conduct
of the treasurer in bis refusal of the tender
made by his son for him. To this proposition we
would reply that if Quay had an interent In the
land, ft IS of no consequence whatever whether
Tax assented or dissented to the redemption.
H« was only tenant by the curtesy of his wife's
real estate, and his Interest in unimproved
land was trifling. And as remarked by us In
the former argiiment of this cause (10 Peters,
14, 16), if none but the husband could redeem
for his wife, the acts of Assembly for the pro-
tection of the real estate of married women
would prove a mere mockery, so far as relates
to unseated landi.
But the dissent of Fox, of which the counsel
for plaintiff apeak, waa after the two yean had
expired; and the evidence clearly showa that
neither Fox nor hi* wife had any knowledge
of Quay's offer to redeem, within two years
after the sale. The treasurer (Harris) says that
in the fall of 1828, the last of September
or the flnt of October, two years and four
months after the sale, he saw Jacob Fox In
Lycoming County, and he told him that Quay
hnd sent down an order to redeem the tract of
land that Mr. Hepburn had bought, and that
he had refused to take the redemption. Fox
told him he had done perfectly right, that Quay
waa not the owner of the land, had do right
to redeem — wanted to steal timber — tSi. Hep-
bum had treated him like a gentleman. By
referring to the testimony of Jacob Fox, it will
be seen by the court that he derived bia infor-
mation about Quay's wish to steal the timber
from A. D. Hepburn, and that this caused him
to use the language about Quay which he did
to Mr. Harris; but when he found that instead of
losing a little timber by the redemption of Quay,
Hepburn's gentlemanly treatment waa calcu-
lated to deprive him and his wife of both tim-
ber *and lend, he at once "adopted ['367
and ratifled Quay's act aa saving the land for
If, then, the dissent of Fox, under any dr-
cumstances, would avail Mr. Hepburn, it clear-
ly appears that as soon as he understood the
situation of the tract, and that Hepburn's at-
tempt to prejudice him against Quay waa
merely that he might hold the land himself, he
immediately ratifies and confirms the act* of
Quay as far aa was then in his power; and if
the testimony of Fox is to be relied on, it
proves too much for the ptointiff in error, as It
proves that Hepburn agreed to relinquiah tha
The counsel for plaintiff In error ur^ that
Quay and wife, as well as Fox and wife, are
estopped from questioning the validity of the
partition of 1825, by their executing the several
deeds given in evidence.
To this point we say, whether they were ea-
topped from questioning the validity of the
partition, is not the matter in controversy, but
whether they were estopped from saving a por-
tion of the land from loss and forfeiture, on ac-
count of the nonpayment of the taxes due be-
fore partition was made.
The county tax was assessed prior to the 1st
of February, 1S26. The road tax waa assessed
on the 2<Hh April, 1825. R. Quay acknowl-
edged the deed of release on the 26th March,
IB25, which was nearly two months after the
county tax of ninety-five cents was due, for
which the land was sold on the 12th June,
1926. This tax wss an incumbrance on the
land, and any nf the heirs had a perfect right
to pay it before the s;.le, and to redeem the
land after the sale, to prevent s forfeiture; so
that if Quay had devested all his interest by
his deed of 26th March, 1825, yet it did not de-
vest him of the right to redeem the land from
a sale whiih waa caused by bis neglect aa well
as that of his co-tenants, to pay the taxes due
before the release, on the very land of which he
T'lere are three kinds of partition in Pennsyl-
vania: tst. A partition in pais, by going on the
land and setting off to each party his respective
lilt
SunuE CouBT or tui UHiTn Staim.
In the CoinniDD Pleaa, or by inquest
Orphani' Court; kiid. 3d, a partition by deed,
wherein the partita grant, assure and convey to
eaeh other tlieir aevcTal respective purparts of
the estate to be held in severalty. It cannot be
SffS'l pretended that the case before us is 'em-
braced within eitliCT of the two first named
modes of partition. The heirs of the two
branches had no intercourse. So little did they
know of each other, that although Elizabeth
Fearon married Jacob Fox in IHI'2. none of
the heirs of Mrs. rpiiron appt'arcil to have
known it in March, 1825, when the deeds of re-
lease were executed.
William Ftaron, one of the heire, swears that
DO division had ever been made of the estate of
Josfph Fearon previous to those writings in
1825: he ssya, "I mean the deeds of March, 162S.
Both branches were never got together on the
ground and made a division. There never was
■ parol division of these lands between the
two branches; there never was a division by
word of mouth that I know of; never any otter
division than the one set forth in the deeds of
March, 1826. The tract No. B616 I never
And Joseph F. Quay says that Jacob Foi
and wife never had actual possession of No.
5615. His wife never saw it. C. Scarrow and
wife never had actual possession of any of
the Fearon lands. They were never in Amer-
A partition in pais is, therefore, out of the
question; and there is no pretense of any pro-
ceedings in partition in either the Common
Pleas or Orphans' Court. It irresistibly fol-
lows that it IS a partition by deed; and the Su-
preme Court in tliis cause say (10 Peters, 20):
"There must be such accuptance of a deed or
partition as would amount to an estoppel, be
fore the estate can be held in severalty;" and
(page 20) "tliat thi?ro whs a fatal objection to
the power of attorney, as there was no separate
examination of Mrs. Scarrow, or any acknowl-
edgment by hen" and let us again remark, that
the power of Si'nrrow and wife to Curwen and
Wilson, is in the name predicameot, and there-
fore, in the Isnf^age of the court (page 22),
'gave no authority to affect Mrs. Scarrow's
real estate till the depd of confirmation, of Bth
September, 1832;" and until that period "the
partition was in fieri, and the estate remained
undivided."
Mr. Potter, for the plaintiff In error, pre-
sented the following printed argument on the
points decided by the court:
The first point to whirli T respectfully rail the
attention of the court is, wlint was thr- situation
of the title to the land in controvcrsv on the
— <rf May, )S'28, when the alleged nlTer to re
deem, by Robert (Jubj-, was made; and what
fhterest. if any, ha'l he at that period in the
lands, which entitli-d him to the pohRcsHion, or
^ve him a right of entry of the whole or any
part thereof!
S«9'] 'In IRIO, »>i the death of Ji)Eepb
Fearon. the pntrutee, the estate, of whii^h tlii!>
tract constituli'd a part, descended by the law<i
of Pennsylvania to his heirs and leual repre-
tisa
sentatiTea, who were the children of kta t»i
brothers, Abel and William, both di-ad, in tbe
Ufetinie of the said Joseph. The chitdtm of
Abel, who survived at the death of Joirpb,
who took a moiety of the estate by descent, wen
Joseph, Sarah, intermarried with C. Scarrow
and Elizabeth, who afterwards married Jsnik
Fox. The children of William were John
(since deceased), William, and James; ^arahin
tcrmarried with Robert Quay, end Nancy to-
termarried with Samuel Brown, who tuuli tht
other moiety. On the 11th of February, 1BI1,
Scarrow and wife, and Elizabeth Fearon, *i-
ecuted, in England, letters of attorney to -lahs
Wilson and others. In 1812, Kli/abcth K>«to>i
married ilacob Fox, in England; and frniu thii
period up to 1825, Scarrow and wife und To\
and wife, wrote letters to their attorney in fact,
Wilson, rmguesting a division of the csUte be-
tween the two branches of the Fearon fimilj;
and in I82S, it is proved that Joseph AL Fox,
Esq., "was authorized to divide tbe land," bj
the heirs of Abel Fearon; on the liili of March,
1825, a deed of release and partition was exe-
cuted by Joseph Fearon and Scariow and wife,
and Elizabeth Fi'ftron, now Fox, by their at-
torneys in fact. Wilson and Curwen, to Robert
(juay and others, the children of Willian
Fearon, deceased; this deed, and all the patent*
and title papers for the whole estate, was talus
25th March, 1825, from R. Quay et al. Ut C
Scarrow et al., w^icl» was then ej.«'uted bj
the represeiitatives of William, and tbe respcrt-
ive deeds were mutually delivered, the titl«
papers divided, end each family received the
title for the respective tracts of lands allotted
them. After these deeds were delivered, tin
heirs of each branch took possession of the
lands, cultivated them, and paid the taxes ai-
Bcssed on the wild lands allotted them. The
respective heirs sold, released and convejfd
land in pursuance of the deeds of pjrtitioa, al
will appear by reference to the deeds upca
record.
Jacob Fox and wife having emigrated U
Pennsylvania, on the 13th of November. IM'.
they, in conjunction wilh Joseph Feana
and Scarrow and wife, by their attoraej,
Nathaniel Nunnclly, made a deed of parlilioa,
tripartite, of the lands fully allotted them by th*
deed of the 25th March. 1825. This deed full*
recognised and recited the deed and conlirnwd
the partition then made- Thus s(o.jd the righu
*of the parties in May, 1828. In .March. [*3T«
1S27, the triasiirer of Lycoming County. Ill-
Harris, informed Mr. James Fearon, thebrnlber
of Mrs, Fox, of the sale of the Irnct in loe*-
tion. and of the necessity of its redemptios;
nnd In February, 1828, alxmt the fir.-^t week.
the treasurer was again in Philmlelphia, •»!
met Mr. Fox, and Nunnelly, the attorney «t
Scarrow and wife, and informed them fully of
the situation (rf this tract, and advised them t*
redeem, and communicated to Fox, the cItJfli'
ant and owner of this tract, that Robert Q<:*i-
Esq., pretended to have an intereat in all lh««
lands. The reply was. "that Quay had o<K!i_
ing to do with them that were marked as hi*.*
Thus the facts are up to 1828. Did O'xav dais
to have an estate or interest in the bud at tV
time of the tender, or did be eUini to he an
rclera 11.
IBM
HiPBUBX r. Dmoii.
«)t«ilt «f tk« •WB«rt The testimony is full,
clear and unavi«atlonabl« that h« did not affect,
or pretend to nave a icintilla of interest in this
tract, subsequent to tbe detiver7 of the deeds
of partition of 1825. H« eweara it expreuly
himself; liia eon, J. F. Quay, and Mr. M'Don
aid, conclusive] J prove it; nor is there or car;
there be anj allegation of agency. Thus wc
have the concurrent declaration of Fox, undei
whom the plaintiffs below claim title, and of
Quaj, that Quay had no right to thit land.
Has tbe law cast upon him by its operation a
right to tbe occupancy of the land, and a right
of entry into this tract, of which he was igno-
rantr Two positions present themMlves. I.
Were the deeds of I82S, making partition valid,
and binding on Robert Qu^ and wife at this
dflle? 2. Or did the ratillcation thereof, by
relation of law, create a devestiture of the estate
of Mrs. Scarrow, at tlie date of tbe deed of tbi
12th March, 1825?
The deed executed by the representatives of
William Fearon, among whom were Quay end
wife, was perfect in all its parts; its execution
was in strict compliance with the acts of the
Legislature of Fennsylvania relative to the
knowledgment and probate of deeds; it c
tained the acknowledgment of tbe receipt of a
full and legal consideration for its execution
and delivery; and on the day it bears date, was
delivered to tbe acknowledged and recognised
agent of the parties to whom the conveyance
was made. A parly cannot pronounce his own
deed invalid, whatever cause be assigned (or
Us invalidity. 1 Kent's Com. 414; Fletcher v.
Peck, e Crsnch, 88. Under the facts disclosed
an the record, could Quay and wife, even if
tbey were desirous to do so, impugn the deed
•f March, 18251 Not a solitary individual, in-
terested in the estate in 182G, or since, ever
ST1*] 'wished to destroy or invalidate the
deeds of partition. For a special object and for
« limited purpose, strangers who purchased
with full notice of the title of the defendant be-
low, now assail and endeavor to overthrow the
title of the defendant; but to preserve the par-
tition of 1625, valid as to themselves, and avoid
It by destroying a link In the chain of their
awn title, to devest the estate of the plaintiff in
Could Quay and wife have retovered any
part or portion of this tract of land in eject-
nient since 1825 T The deed then executed and
delivered by them irould have been a perfect
estoppel to the suit. On its production, no court
would have suffered a recovery to have been
had in their favor. A person who is entitled,
either in taw or equity, to the possessioB or en-
joyment of land, or has an estate in it, can en-
force that right at law; otherwise be would
have a right without a remedy. If Quay and
wife had no right which could be enforced by
Action, on what principle can he redeem t The
provision is, "If the owner or owner* of land,
«old aa aforesaid, shall make or cause ta be
aaade, within two years after such sale, an
offer or legal tender, etc." See 4th sec. of the
Act of 181S, Throughout, the whole act speaks
of the "owner or owners." The Act of 1804,
in the Ed see., makes it the duty of the treas-
urer to take from the purchaser or purchasers,
bonda "for any surplus money that may re-
main after aausfying and paying tlia taxes and
• Ij. ad.
coats." For whoBe uaet Tor that of "tha owuer
or owners of tbe land at the time of sale, or
their heirs or assigns, or their legal representa-
tives." II thia tract had been aold for several
hundred dollars beyond the taxes due, and
costs, and a bond had been taken from the pur-
chaser, who would have been entitled to the
moneyT Quayl Unquestionably not. Could
he have released the bond, and discharged the
purchaser from his liability to the owner f It
IB conceived he could not; that a receipt by him,
for payment of the money, would have been
no iMir to a recovery by Fox and wife, or their
assigns, on the production of the evidence on
this record. If these positions be correct, then,
a fortiori, he had no legal or equitable estate
that would authorize her to redeem.
Now, as to Mrs. Scarrow; how was and i*
she situated in relation to this question T It ia
not her, or any person clniming under her, that
impeaches the validity of tbe deed of partition
of the 12th March, 1825. Have stranger* a
ripht to do it? or can others, contrary to her
wishes, and against her ronsent, render null
and void, 'and hold In licri, a psrtition [*373
confirmed and consummated by herl The let-
ters of attorney of 1811 were not arknowledged
by Mrs. Scarrow; in pursuance of the direc-
tions of tbe Act of 24th February, 1770, to sell
and convey lands in Pennsylvania, belonging
to a feme covert, it was neceasary to have the
separate examination, etc., of the wife, and that
set out in the certificate by the proper officer.
This certiflcate constituted no part of the in-
strument, and is but the evidence of its execu-
tion. The instrument was perfect without it;
but before a court of law could receive it in
idence, the probate must be perfect. It is
immaterial when the probate was made, whether
at the date and delivery of the deed, or years
subsequent thereto. When made, tbe deed
took effect as of Its date.
The cases cited fully sustain these positions.
The case of Bboada's Appeal, 3 Rawle, 420,
decides the very point, that an acknowledg-
ment by a wife is not necesHary to authorize
partition to be made of lands which descend
under the intestate laws in PennEiylvania. 1
would respectfully refer your honors to this
case, as the very point was mode and elaborate-
ly discussed. It has become a rule of property,
upon which many valuable estates depend, and
will not be lightly disturbed. It ia a construo-
ciple decided in this case, I would respectfully
Bubmjt that it is not void of support on com-
law principles. By statute, those who hold
land by descent in Pennsylvania are called "ten-
ants incommon;"but by tbe incidents of the ten*
they approximate to an estate of coparcen-
ary at common law. In Long v. Long, 1 Watta*
Rep. 200. the Supreme Court of Pennsylvania
clothed these estates with the incident* of co«
parcenary. At common law, eatatca of tenants
in common are acquired by purchase; and
livery oF seisin, etc.. accompaniea them. Co-
parcenaries acquire title by descent, and have
a unity of interest, title and posBessioo. It i>
not necessary to levy a fine, or suffer a eommon
recovery, to vest the estate of s coparcener, im
partition; and the aanw rule ia appUcahle to
aiai
ST2
Sunnu OoniT tm tmi UimiD Stato.
Mtktet aeqaired by dcMcnt In PennBylyuifft.
Partition between coparcenen does not con-
•titute K conveyance, nor doea it pas* the land
bj a frMh investiture of the seltiu. It only ad-
justs the rights of the parceners to tha poaaea-
aiOQ. Bee Allnat OH Partition, M. page 124.
12Si Ibid, page 21, mar^aal. The husband
and wite are compelled, in Pennajtvania, by
statute, to make partition in the Orphans'
S7S*] Couit; and that which they *are com-
Clled to do at law they may do by agreement.
tl. 171. HargTSiVe, in a note, aaya the above
doctrine he takes to be clear law. If the par-
tition is unequal, it Is good during the life of
the husband. Even infants', if the allotment is
equal, are bound by partition; ao a prochien
ami may make partition on behalf of an in-
fant, because the aeparation and division of the
estate is believed to be for the advantage of the
infant. See Long t. Long, 1 Watts' Rep. 276
to 2d0i Barrington r. Qark, 3 Burrows, 1301;
2 Pa. Rep. 124.
It was, at all events, binding on Mrs. Scar-
row during coverture; and as her husband is in
full life, no person can avoid it. But aa Mrs.
Bcarrow has ratified and confirmed the parti-
tion in the lifetime of her husband, all others
ara estopped, forever, from denying its valid-
ity. The deed was not void; it was only void-
able. Cowper's Kep. 291. The estate passed
to the grantors by the deed of 1B2S, during the
lifetime of Scarrow. See Mercer v. Wation, 1
Watts' Rep. 307. The alienation was good
against Scarrow, and he, as baron, had power
to transfer the estate of feme, subject to the
right of the entry of feme or her heirs, on the
death of the husband, lai Preston on Ab- of
Titles, 334, 335; 2 Kent's Com. 133; 3 Serg. &
Rawle, 383, 3B7, maintains the analogous posi-
tion as to the right of an infant, and decides
that an invalid deed can only be made void by
the infant. See also 10 Serg. &, Rawle, 117.
But it is argued that the letters of attontey
to Wilson and Curwen conferred no authority
on them to make partition. If it did not, how
can the plaintiff below maintain his suit for the
and by the partition made under that power.
There never waa any other division of this
estate between the two families of Abel and
William Fearon, unless what was done by and
under the letters of attorney aforesaid, and
their ratification and couGrniBtion created a
partition; the estate is yet in common, and the
plaintiff below could, under any aspect, only
remver the moiety to which Mrs. Fox was en-
titled by descent. If this position of the de-
fendant in error ia true, the judgment must be
reversed. The reading of the letters of attor-
ney clearly evidence the intention of the con-
stituents, and show the object they desired to
accomplish. They authorize their attorneys
"to obtain the actual seisin and posaession of
their respective aharea." The ostate was un-
divided, between —
S14*] *First, the children of William Fear-
on and Abel Fearon.
And second, when the general division was
made between the two families, the moiety al-
lotted the Abel branch waa to be divided be-
tween them.
Now, how wera tha attorneys to obtain ths
actual seisin and possession of thair respcetirs
shares, without an equal partition T After Umj
had got "the actual seisin and possesuan of
their respective shares," they had power to ad)
and eonveji "their respective shares," and eon-
vert them into money. Again: they had power
to enter into the possession, "along with, or
without the other heirs," They were to taka
possession of each and every of their respf^tiva
parts or shares, and had power expressly girei
"to do all things necessary for acrompliihiog
the several purposes aforesaid." They weia
sound principles, that every general power
necessary implies the grant of every matter
necessary to Its complete execution, and that
the true rule of construction is to effectuate the
intention of the parties, if such intention b*
consistent with law. See 4 Dall. 347; 6 Binn.
14S; Sugden on Powers, 430. The doposition
of Fox proves that the parties contemplated a
division, for he says, "we wrote letters to Mr.
Wilson to divide (he land:" and it was neces-
sary to make a partition, to enable the attec-
neys to accomplish the purposes designated in
the power.
Mr. Justice Baldwin delivered the opinion of
Thia
r taker
B before this court a
1 writ ol
trict Court for the Western District of Penn-
sytvania, at the January Term, 1836; and aS
the questions arising on the record, or made bj
counsel, were there fully considered. The court,
however, took further time for con^ideratiom,
and at the Term of 18311 delivered their unan-
imous opinion, reversing the judgment of tbt
District Court on the merits of the case aa weO
on the questions of law as of fact ; as will app.-«r
in the lOlh vol. of Petcrs's Rep. pages 17. 33.
Pursuant to the judgment and mandate there
rendered, the case was again tried, and now
comes before us on a writ of error by the de-
fendant below, after a verdirt and judgment
below against him; in the arfrumnnt. of wlii.-b
every point of law and qiieslion of fart wlii.-b
came up and was decided before htu bess
noticed by counsel now.
As relalcB to the questions of Inw arising oa
the great mass of deeds in the formt-r and
present record, they are not varied by anything
'which is now brought up for the first [*3'S
time: the want of any operative act by Mn.
Scarrow, which could confirm the BlIepiHl par-
tition of 1825, before the duly SL'Iinuwle,ls.J
deed of confirmation by her and her husband ia
1832, la not supplied. The counsel of the plain-
tiff in error have indeed contended that bet
deed of 1S32 operates retrospectively to validat*
all the previous acts of her attorneya in farrt
from 1811 to 1828- But the law is well aettW
to the contrary. The deed of a feme covert.
conveying her interest in land which she owas
in fee, does not pass her interest by the force ol
its execution nnd delivery, as in the eoaiinca
case of a deed by a person under no legal in-
cspacity. In such cases, an acknowledgia^at
gives no additional effect between the parties la
the deed; it operates Only as to third pert>oaa.
under the provisions of recording and kiadred
laws. The law presumes a feme covert to art
under the coercion of her husband, unless befoia
a court of record, a judge, or aome co^
r«(«n 11.
1B38
Bkldue and GiBMKa v. Thi MAtTum iMBumAnox CoarAjn.
ST0
nttwlmer In England, by • gep^nte mi^knoi*t-
cdnnent out of the preaence of her huib&nd;
and in th«M States, before BOme court or ju-
diciai officer, authoHced to take and eertiff
flueh acknowledgment. We are bound, there-
fore, in oceordanu to what we deem in the
former case to be the legal result of all the
deed* and facta on the record, to declare
deliberatelj hold, to beaBcintillaof legal right;
which ii all that, by the laws of the State, it
neecBsaiy to entitle the holder of aucb right to
redeem landa sold for taxee.
■ In ur^ng upon this court a review of the
parol eridence in the record, we think the
eoiuiHl of the plaintiff in error hare asked ua
to transcend the limits prescribed to our action
on queations of fact, by an uniform course of
decision from the firat organization of this
eourt, which has been repeatedly defined during
the present term, in our opinions, unanimous
on the law ; though sometimes differing in its ap-
plication to particular eases. If our past course
cf adjudication has not sufficed to satisfy the bar,
as to what we have considered our most solemn
tween those queations of fact cognizable only
t^ the jury below, and questions of law arising
on the joint action of the court and Jury, in
that court whose record we judicially inspect
on error; it will be useless to attempt to close
it by any opinion to be delivered in this case*
This court is committed in language which it
neither ean nor desires to recall ; because that
power which we are bound to obisy has spoken
ST«*1 *tO us, and all the courts In the United
States in terms most impprative.
"The trial by Jnry is justly dear to the Amer.
iean people. It ba* always been an object of
deep interest and solicitude, and every en-
croachment upon it has been watched with
great jealousy." "One of the strongest ob-
jections originally taken against the Oonstitu-
tton of the United States was the want of an
express provision securing the right of trial by
jury in civil eases. As soon as the Constitution
waa adopted, this right was secured by the
MTcnth amendment of the GonBcitution pro-
posed by Congress, and which received an as-
sent of the people so general as to establish its
importance as a fundamental guaranty of the
rigots and liberties of the people. This amend.
ment declares that la smta at common law,
where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall
be preserved; and no fact trial by Jury shall be
otherwiae re-examined in any eourt of the
United States, than according to the rules of the
common law.' " 3 Peters, 446.
If this court can comprehend what these rules
are, or promulgate them in intelligible language,
they are theae:
That where the evidence In a cause conduces
to prove a fact in Issue before a Jury, It Is com-
petent in law to establish such fact; a Jury may
Infer any fact from such evidence which the
law authorizes a court to Infer on a demurrer to
tke evidence; after a verdict in favor of either
pMty on the evidence, he has a right to demand
of a eourt of error that they look to the evi-
dence only, lor only one purpoe^ and with the
• It. ed.
slnpte eye to ascertain whether tt was tompetent
in law to authorize the jury to find the facts
which make out the right of the party, on a
part, or the whole of his case. If, in its judg-
ment, the Appellate Court shall hold that the
evidence waa competent, then they must found
their judgment on all such facts as were legally
inferaote therefrom; in the same manner, and
with the same legal results, as if they had been
found and definitely set out in a special verdict.
So, on the other hand, the finding of the Jury
on the whole evidence in a cause must be taken
as negativing all facts, which the party against
whom their verdict is given, baa attempted to
infer from, or establish by the evidence.
On the evidence in the former record, we
held that it was competent, in law, to make out,
and for the jury to find the fact of an offer to
refund the taxes, etc., so as to give a right of
redemption; on the evidence and finding of the
jury in the present record, we •are [*J77
bound to consider the fact of such offer u
establiahed, and to hold the facts so found, to
bring the defendant in error within the pro-
visions of the laws of Pennsylvania, on which
the case turns.
The judgment of the court below Is therefore
affirmed with costs.
This cause came on to be heard on the tran-
script of the record from the District Court of
the United States for the Western District of
Pennsylvania, and was argued by counsel; on
consideration whereof, It is now here adjudged
and ordered by this court that the judgment of
THE MARYLAND INSURANCE CO.
Abandonment to inaurers — state of facts at
time of abandonment determines whether to-
tal loss has occurred — subsequent r I'nts ad-
missible as evidence — value of ship al time of
disaster —basis of valuation — retardation — in-
surance on time — liability of Insurers as to
money raised by bottomry.
r not, ti
■bindODaK
nade li
;. rhp
Hade. 1(
eht- ot
[be parties are deanltlvel; (lied, and do not b.
coma chSDECd bj an; lubsrqueut evenu. It, on tbe
other hBnd, the aMndonment when made N not
M as retroaeCIvelj to Impart to [t > validit; which
It had not at <!■ ortitln.
In caiM wbere the abaDdanment Is tounded upon
supposed technical total toss, by i -" ~
njurr.
ar
f I roof, to be derlv
t the repairs, wL , —
eeed the bill value, It Is plain
of the best proofs ot th; actual ana
Od the otbei hand. It tbe sulxequ?
rar below the balF valae. this, so I
alTorda an Interencg the other waj.
SinaBm Oran w ths Vnutm B
UM
at itMOdlDf,
tnm tbe Itaa
eMt of cipendltu le
It, M to Jiuur; I
til* itate of th* TMMl mar to meh.
; of tbe peril aod the
»i~tti«l uperdlti .
iie <■ Id lafety. Whert,
.D whlcli tbe iei»el then in«7
I, In the hlgtiMt decree of probabllltr tbe
— '- '- '■-r would exceed half her
npos the spot,
the Tewel ol,
•xpendltures. t!
. jnlniared. and
10 withhold every ■ttemiiC to set
became of aurb apparebtlr great
> abaDdoDinent woufd doubtleta be
In reniect to tlte mode of Mcertalnlng the ralut
af tbe ablp, and, of coaru, whether ahe [a Injured
to the amaant at half her value. It hai, on the full.
eat eonalderatlOD. been beld bj thla
troe basil of the valuatloD la tbe value ot tbe ablp
at tbe time at the dlaaiter; and that If after the
daaan la, ot might be repalre<t. tbe ship la not, or
woalo not be worth at tha place of repain, doable
the coat of repalra. It la to be treated ai a te
toUl loaa.
Tbe Taluatlon In the policy, or the value
home port, or In the nneral market of othei
eoDatltntea no Iniredlent In atcertalDlng v
the Injury by the illaaitet la more than one
la of the Teaael, c
for tbe Ilka n
tbe ordinary dedncllon In coae of ■ partial Ion, oi
"one third new for oU," from tbe icpaln, li eoually
Inapplicable to caam of a technical total Iosb, by an
Injury exceeding one half of the value ot the vegnel.
The mere retaidatloD of the voynge by any of tbe
Serlla Inaured agalnat. not amouutlns to, or pro-
iiclni a total Incapacity of tbe ihlp eveulually to
perform the voyage, cannot, upon prlnelplea well
catabllihed. be admitted to eoDitltnte a technical
toUl loBB. which win autharlze an abandonment.
A retardation for the purpone ot repalrloe damage
from tbe p?r1la Inaured aealnst. that damage not
exceeding one moiety ot tbe value ot the ablp, talli
»Tn*i directly -irhln thla (loclrinc. tinder 'auch
drcumatancea, l( the ship can be repaired, and is
repaired, and Is ibus mpalilF ol u^rtonnlng the
voyage, there la no grouDd ot abandoament round-
ed upon the consideration that the voyage may not
be worth poraulng, tor the totereat ot the nhlp onn-
voyage : for
r the voyage baa notblng to
upon the ship lor the voy-
An Insnrance on time diltera, as to thla point. In
■0 esaentlal manner from one upon a particular
voyage i except In thla. that In the latter case, the
Inaurance la npon a apeclDc voyage dfacr1l>ed In
the policy: whereaa ■ policy on time Insures no
speelflc voyage, but It covers any voyaEe or voj-
agea whatsoever, undertaken within, and not ex-
ceeding In point ot duration, the limited period tor
which the fiianrance la made. But It doea not con-
tain an andetteklni; that any particular voyage
BbatI be performed within a particular period. It
'a nothing aa to any prolongation or retard-
tbe nnderwrttera his Iniurali
cecda of It. or the claims arl
It la Inaured in the policy,
aec, 490. p, S34.
When any loas or mlito
the voyage la lout, or hecomi
■nd tha projected adve
la entitled tr -—
c from It, ao far a
loaa:
the 11
: that ii
total
e and yield ap to the Insurer all his il?lit.
title, and claim to what may be saved, and lenvc it
to him to make tbe moat of It for hia own beDpflt.
Uarahall on Ina. 4T0j Park. 143, 2SS, o; Bell v,
Bmlth, 2 Johns. B8 : Suydum v. Marine Ins. Co. 2
Johna. IBS: Oracle v. tf. v. Ins, Co. B Johns. 188:
Corp V. United Statei Ina. Co. S Johna, 21B,
TTpon abandonment the Insurer stands In place
of the Inaured, and become* legally entitled to all
that can be rescued (mm destruction. 'Rie Idea of
abandonment, therefore, presupposea a totnl loss in
tbii latter lenne, and Implies that something re-
main* which may be saved, and which may be (Iv-
an np, or sbandoned, to the Inanren. Marahalfon
The Insured may abandon In every rase where,
by th* bappT'nlng ot any ot the mlsfortunea or
peril* Inanred agalnat. tbe voyage I* lost, or not
worth puraolDg, and tto projected •dventnta Is
Btton of th« voyaga, tat only thai Ike ahlp ateg ka
capable of performing the voyage ondertakea,
not with Stan ding any loaa or injury which nay ac-
crue to her dnrini tha time for which aha i b-
aured. and ot repairing It. if luterrupted.
There Is no principle of law which make* the n»
derwrltera liable in the rase of a merely partU
loss of the iblp. It money la taken up In boEloHry
tor the necessary repairs and expendltnr*^ aad
which makea It tbe duty of the undern-TlterB tn de-
liver tbe ship from the bottomry bond to tbe eiteat
o( their liability tor lb* eipendlturea ; and that If
they do not, ana It the veatel is sold under tbe b*t-
tomry bond, they are liable, not only for the par-
llal loss, but Cor all other loaaes to the owner, fbr
their neglect.
Tha underwrllera eninig* to nav the ■mannt af
tbe expenditures and lasses dl
tbe perlla Insured against; but
to My the same.
in ■ foreign port, tor the repal
ectly aowtng from
troni their neglect
ad to supply faadi
.11 insured aiJUnsL
_., lued by 1 ,
Tbey undertake only to pay the a
notice and proof ot the loss, anu wiiuiu a p.-v
Bcribed time,
meet the expenditures for repUrs, tbt mn-
"-•• •- take up money on botloaui.
ter la compelled t
loney la that
the Circuft Court of ths Oidtal
&tat«B for tha District o( MarylkiuL
Tbe caae, *» stated in the opinion of ttc
court, was as follonra:
The ori^n^ action waa upon a policy of in-
Burance, dated the 22d of November. 1832,
whertb)r the defendatits, the Maryland Inaur-
anee Compan;, caused tbe p!aintiffa, bj that
agent* (William -Howell ft Son, to be fSS*
inaured, loat or not loat, ten thouaand dollva,
at a premium of four per cent., on the brif
GracchuB, Snow, master {valued at th»t auml,
at and from Baltimore, for six calendar moatlia,
commencing that day at noon ; and if she b*
on B. paaaage at the expiration of the time, th*
risk to continue, at the same rate of preBUwa,
until her arrival at tlie port of deMtinatioB.
B dlB-
Peele
ot princes, or detentloa bT
luTciun puoiT, u primw facie a tolal ■«■■. aal
while Ihe ship contlniira uudrr d<-lrnilo'i, lb* h-
F.«ied mav elect 10 Rhanrlon. and give nntlce tn tk"
lifUier of his Intention to do so. and thus eitltl*
himself (o claim aa tor a total loas frum ihr Inur-
er. Ulilnnlander v. Ins. Co. ot l-eunsylvula. *
Cranch. 2!): Gobs *, Withers, 2 Burr. Gtm : KuM
Kemp r. Vlirne. 1 Term I). .104 : McRrlde v. Uarlai
Ins, Co. e Johna. 280: Walden v. PhtpDix In*. C«
- -ohus. 310: Brhm'"- - ■■-■--•-- "- - --—
1; 2 rhilt. on !□■
10 Johns. 117,
1638
Turn ILuiiAKD Insuunce Compadt.
n» daolknUon alleged m total Iom bj theoaat'
ing aibore and itranding of th« brig, on the 23J
of March, 1633, in tbe River MiBsiBsippi. Upon
the trial of the cauie, it appeared in Evk'
that tlie brig sailed from Baltimurc on a voyage
to New Orleanl, and aafely arrived there, and
t4x>k on board part of cargo (pork and sugar) at
that port, on a voja^e for Baltimore; and
■bout the middle of the 23d day of March,
1833, aailcd from New Orleans, intending to
Eroceed to Sbrppard't plantation, on the Kver
[Isaisiippi, about thirty-three milei below New
Orleani, to take in the reaidue of her cargo for
the Mme voyage. At the English Turn, a'
twenty-two milea from New Orleans, thu
attempted to come to anchor, and in lo doing
loat the antall bower anrbor, and then dropped
the beat bower anchor, which brought her ur
The next morning, while the brig was proceec
ing on her voyage, the struck on a lo^, broke
the rudder pintles, vhea she fpll off and went
on shore. A tii^at was then maile for a steam-
boat in sight, which came to the asHibtanoe ol
tbe brig, and in attempting to haul her olT. the
hawaer parted. It was then found ItiRt
brig was making water very fast; help hbi
tained from a neighboring; p'aiitution. They
commenced pumping and disriiarging the car-
go on board of the steamboali and after dis-
charging all llif! pork, and a part of the Biifjar,
they suL-ceeded in freeing the sliip on tbe after-
noon of the same day. She was then got off,
■nd procct^ded to New Orleans, where she ar-
rived the same night; she continued to leak,
and both pumps being kept going all the time.
The next day the master uudiTBtood that the
steamboat claimed a salvage of flfty per cent.,
Mid intended to libel for it. On the 2Tth of the
•wme month, tha brig was taken across the
«r for repairs. On tbe same day the brig
libeled for the salvage In the District Court of
On the £5th of March, Snow, the master,
wrote a letter to one of the owners, containing
•Ji account of the loss and state of tbe brig;
and also of the claim fay the salvor of fifty per
cent., which the underwriters on the cargo and
SSI*) himself had objected to, adding; 'that
tbe; ahould hold the steainhoat liable for any
damage that might be incurred on account of
the detention.
The following is a copy of the letten
"New OrU-ans, 26th March, 18S8.
"Isaac Bradlie, Ksq., Seaford, Delawara
"Dear Sir: I left here on the 23d init., to go
thirty ji» miles below, to complete loading the
brig with eu^an, for Baltimore; on the eveniu
of the same day in coming to in the Engliu
Turn, in a heavy blow from the S. E., partad
the small bower cable, and lost tbe anchor, I
then let go the beat bower, which brought her
up, where we lay during the night; in tha
morning of tbe 24th, got under wsy and pro-
ceeded down the river; at 7 A. M., struck a*
a log, broke the rudder pintles, the brig faD
o? and went on shore. I then made a signa]
for a steamboat which was in sight; she came
to our assistance and attempted to pull ns off,
but tbe hawser parted; we then found that
the brig was making water Tery fast, and that
she would soon fill; got thirty odd negroea
from a plantation, and commenced pumping,
and discharging tbe cargo on board of the
ateambaat; after discharging all of the pork
and tbe greater part of the sugar, we succeeded
in treeing of her, at 6 P. M.; we then got
her off and proceeded up to town, whrre we
arrived at 11 P. M. Tbe owners of the steam-
boat claim a salvage of fift
sel and cargo, which the i
go, with myself, have objected to: we have
t been able to discharge tbe balance of the
cargo to-day; what the connequence will be I
aimot say. We hold the owners of the steam-
>oat liable for any damage that may occur on
Lccount of the detention; the brig continuea
a leak so at to keep both pumpt going almost
constantly. About one half of tne sugar U
damaged. I have noted a protest and had a
survey, and shall proceed to have everything
done in tbe most careful manner, as tbe aur-
vey may direct, for tbe interest of all con-
cerned: at floon as I am able to inform you
of what will be done, I will do so by the Itrat
opportunity."
On the 22d of April, Meaan. Howell & Son
addressed a letter to the company, aubmitting
the letter of the 2Eth of March to the company;
and say therein, "In consequence of the dam-
age, together with the detention that must grow
out of a lawsuit (iu which it appears that the
vesael in involved), the voyage being broken op.
___.._ 1. ai* : llnniir-
lon T. M.'ndex. 2 Durr. IIOR : ramee *. Ilali "
. National laa Cu. 15
Tbe a
ured,
hiinndlnc a
■- iPft. "
If the aalvaee be verr hTgii : or, II furllirr oipense
at all Pvenlp'to nav )t. MaiKtinll v. Delaware Ins.
Co. 4 Cranch. 202; rrtdRJe v. llnrDcy. ;< Alk. IDS;
STDionda V. rjDioD lea. Co. i Hal) 417: floss t.
Withers, 2 Iturr. 38 K : Pond T. KlnR, 1 WllBon,
191 : HnrtlD r. rhmix Ina. Co. 1 Wnsb. C. C. 400:
wmtthcad V. Bailee. Park. 123; Jenkins v. UfKen-
ale, Ulllsr, 3Z1 : Msteh, on Im. 403; Wllllnma v.
flurToIk Ina. Co. S Siimn. 2T0 : I I«w Bpti. inS.
It atrnndlnR a vhihL !■ ta«owH b7 sblpwreek.
«T, the ship la (berebj, in anj olher war. Tendered
iDcapslile of proaecutlDg tbe Toyage, tbe InjureiT
._. ._ ...„ ,. _ .._., will not.
at Itaeir, justttv an abnndonment. The maater nnd
erew are bound to nie Ibelr beat eierIlon« to ft
feer off. But l( H la boiielcaa (o get her oil. tbtn bd
, Marine
acb C. C. 4T4.
.s iDjurcd br tempeata, tt mutt be
proved tbal It waa Impoaalble to repair ber. or that
-'-e wBa not wortb tepalrtnt. or tbe matter has do
(ht to break up the voyage, and cODVtit a
rtlil Into a total lost. Cart v. Detanare laa. Ca.
Waab. C. C. 870 ; Jordan v. Warren Ina. Co. 1
orj C. C. 842.
In casta at aelaiire, capture, etc.. tbe rliht t
andon must t» tiercli-' -■■>■'- - '-'
le after notice ot tbe lo
Stark. 3 Craneti, 20S.
Bat tbe rlgbt to abandon mar be kept In sus-
pense by mutual conaenL LIvlDKatOD v. llarjland
Ids. Co. fl C ranch, 2T4.
Tbe Insured It not boanil to tbandoD. He may
decline making an abandon men I. and demand a
nanlal loaa. Marean v. llnHed Statea Ins. Co. I
Waab. C. C. ZGS; arft sob nom. Morean v. CnKed
Rtalea Ins. Ce. I Wheal. :i»; Murray «. Int. Co.
□r I'enatTlvanlB. > Waah. C. C. ISA : f Am. T.ew J.
-~1 : Eari v. Shaw. 1 Jobnt. Cat. 313; Abbott T.
'inr. 8 Johna. Css. Bft; Rant v. Thnrston, 1
lint. Caa. 248: Btelnbach v. Columbian Ins. Co
Pal. 126: I^wrtnre v. Bebor, 2 CaL 308; Bmitb
Stelnbach, S CaL Caa. 15B.
SunniE CouBi w thb Lint* SrAxia.
ttS^I wa *do herebj abandon to 70U tlie Mg
Onkwhii*, ■■ iniured in your office per policy
No. 18,703, and claim for a total I0M?' On th<'
•am* daj, tba company returned an answer
•aylng, *'Wa cannot accept the abandonmem
tendered in your letter of thia date; but expect
you to do «rhat Is neceasary in the caae for the
■ftfety and relief of the vessel."
On the 9th of the eniuing May, the IMstrict
Court decreed one quarter of the value of the
veuel and cvso (estimated at seven thousand
dollars) as Balvagei the brig Iieine valued at
tirenty-flve hundred dollars. On the 14th of
tbe same month, the maeter got poHseasion
•gain of the brig, tbe salvage having been paid.
Cb the 3d of June, 1S33, the hriK was repaired
and ready for a freight; and early in July shi
•ailed for Baltimore, with a partial cargo 01
board, on freight; and duly arrived therein the
latter part of the same month. The repaii
New Orleans amounted to the sum of
thouaand six hundred and ninety dollars
Bfteen cents; and the share of the brig, at the
gmeral average or salvage, to the sum of one
thousand two hundred and forty-flve dollars
and Reven cents; iu the whole amounting to t
thousand nine hundred and thirty-five doll
and twenty-two cents. To meet this sum, 1
some other expenaes, the master obtained
advance from Messrs. Harrison, Brown ft Co.,
of New Orleans, of three thousand se'
dred and fifteen dollars and forty-01
and gave them as security therefor, a bottomry
bond on the Graecbus, for the principal si "
and five per cent, maritime premium, paya
on the safe arrival of the brig at Baltimore.
On tbii bottomry bond, the brig was libeled
In Baltimore, and no claim being interposed by
any person, she was, by a decree of the District
Court of Maryland, on the 6th of September,
18S3, ordered to be sold to satisfy the bottomry
bond; and she was accordingly sold by tbe
marshal, about the 20th of the same month, to
John B. Howell, for four thousand seven hun-
dred and fifty dollars; who, on the 24th of the
same month, paid to the attorney of the libel-
ant the full amount due under the decree of
the court. On the same day the president of
the company addressed a letter to Messrs. How-
ell k, Son, in which they say, "We have ex-
amined the statements of general and particu-
lar average, and the accounts relating thereto,
wbteh you handed ui some days ago, respect-
ing the expenses incurred on the brig Qracchus,
at New Orleans. Although some of the charges
are of a description for which the company is
S8S*} not liable "by the terms of their policy;
yet wishing to act liberally In the case, we have
agreed to admit every item ia the accounts, and
the different amounts will be as follows." Here
follows a statement, deducting from the rs-
paira one third new for old, and admitting the
■um of two thousand four hundred and nine
dollars and eleven cents to be due to the plain-
tiffs, and inclosing the premium note and
tt check for the amount. The letter then adds.
"If you find any other charge, etc., has been
'A at New Orleans, in order to raise the funds
"W* sbonld do them (tbe ownera) frcat ii-
juatlee to make such a settlement. Oar opIiisB
IS, that in law and equity, thsy have a elaia
for a total loea."
These are the principal faeta material t« ks
mentioned, though much other evideae* mt
introduced into the cante upon coIlatanJ pofart^
by the parties.
The counsel for the defendants, after tk* ■*!-
dence on each side waa cloaed, moved th« covt
to instruct the jury as follows:
Defendants' 1st Prayer.— The defendanta, ty
their counsel, pray the court to instruct tbe Jwy
that the notice of abandonment of the iU
April, 1833, and the accompanying letter tnm
Captain Snow, of the 2Gth of Mwch, aa girts
in evidence by the ptaintifTa, do not abow or
disclose facts which in law jnstiSea the offer te
abandon then made; and therefore, that in the
absence of all evidence, that said abandannieal
was accepted by the defendanta, the plaiatib
are entitled to recover only for a partial loaa.
B. That if the said notice of abandonmeat
was sufficient, still the jury ought to find a ver-
dict for a partial loss only; unless they ahali be-
lieve from the Evidence that the Gracchoa ant-
fered damage from the accident that befell hv
on the 24th March, 1833, to more than one baU
the aum at which she waa valned In the policy;
and that in estimating said damage, tbe jny
lught to take tbe cost of her repair* only, de-
ducting me third therefrom, aa in the caat «f
adjusting a partial loaa.
3. That if the said abandonment waa hI-
ficicnt, as is assumed in the preceding prayw,
" ■ ■ * d a verdict for a par-
. ly shall believe, vpoa
tbe evidence, that the damage so suatained bf
said brig exceeded in amount one half the •■■
at which she was valued in the policy; and that
In estimating the 'cost of her rrpaira [*SS4
for the purpose of ascertaining the sunooat it
such damage, the jury are bound to drf»t*
one third therefrom, as in the caae of a partial
loss.
4. That if said abandonment waa auffideat,
■till the jury ought to find a partial loaa oaly,
unless they shall believe that the daKnga as
aforeaaid was more than one half the value •!
the said brig at the time the accident ha{^nad,
according to the proof of such valvn aa gi**a
In evidence; and tnat in estimating the anouat
of such damage, tbe Jury are to take tbs
amounts of the genera] and particular average*
as adjusted at New Orleans, deducting one third
from the actual cost of repairs.
But the court refused to give the instractioas
prayed for, and gave to the jury the followiaf
instruction: If the jury find from the evideace
that the Gracchus was so damaged by the £■■
aster mentioned in the letter of Captain Sncnr,
of March 2Sth, 1833, that she could not ba get
off and repaired without an axpenditnre a(
money to an amount exceeding half ber valna
on bottomry, '
i will pay c
r full
proportion
ifnted with
ding
at the port of New Orleans, aft
were made, then tbi • ■ ■■
rter a
enUtled t*
for a total loaa, under the abandoBBCat
made on the 22d day of April, IB33; and ia aa-
certaining the amount of such axpendltur«, tta
jury must include the sum for which the bHf
waa liable to the salvon, according to the de-
cree ol the District Court of Loniaiau, atctad
U tb* evidence; but If the jury Bad that tba
^*»""™ AXD ObBOHB T. TBI UABTIAHI) IntOBUKM COKPAKT.
twibI could bave been got off and repaired
vithout m expenditure of monej to tlie amount
of mora than half her value; then, upon the
•ridence offered, the plointlffa art not entitled
to recover for a total loai, on the ground that
tho voyage iraa retarded or lo«t, nor on account
of the aireat and detention of the Tesiel hj the
admiratt^ proceta, iuued at the inatance of the
•alvon.
The defendants excepted to the refuaal of the
eourt to give the instruction! prayed, and also
to the opinion actually given bjr the court in
their Inetructiona to the Jury. The plaintiffs
klao excepted to the lama o[dnion given by the
The plaintllTa also prayed "the court to di-
rect the jury that in this cause the [mured, by
their letter of the 22d April, authorized and re-
quired the proper expenditures to be made up-
on the vessel, for which said underwriters are
liable under their policy; that no funds being
aupplied by them in New Orleans to meet this
loas; and the aalvage and repair* having bean
paid for by money raised upon respondentia up-
- '1- - - -a). If tv> :-«.». .L»ii Am.i tL.4 -.:j
on the vessel i
r theil find that said
e to BbI-
SSB*] timore; and the defendants 'were then
Kppriaed of the e:tistence of such respondentia,
*nd were also informed of the existence of the
proceedings thei'eupon against said vessel, and
they neglected to pay so much thereof as they
ought to have paid to relieve said vessel, and
omitted to place her in the hands of the own-
ers, discharged of so much of such bottomry as
the underwriters were liable for, and in conse-
quence thereof, said vessel was libeled and
condemned and sold, and thereby wholly lost
to the plaintiffs, then the plaintiffs are entitled
to recover for the whole value of the vessel."
The court refused to give this instruction,
and the plaintiffs except^ to the refusal, and
the court aigned a btU of exceptions upon both
■xeeptiona. The jury found a verdict for the
pikiotiffs for three thousand four hundred and
oiehty-nine dollars and twenty-two cents, upon
which Judgment passed for the plaintiffs. And
the present writ of error is brought bv the
plaintiffs for the purpose of reviewing the in-
structions above statMi, so far as they excepted
thereto.
Although tha prayers for the initrucHons by
the defendants are not before the court for the
purpose of direct eonaideratlon, as the defend-
ants have brought no writ of error, yet It is im-
poaolble completely to undentand the nature
and extent and proper construction of the opin-
ion given by the court, without adverting to
Che propositions contained in themj for to them,
and to them only was the opinion of Um court
given as a response.
The aecond instruction asked by the defend-
ants, in substance insisted that to entitle the
plalntilTa to recover for a total loaa the damage
to the Qracchus from the accident ahonld b«
more than one half the sum at which she was
valned In the policy, and that In estimating the
damage, the costa of the repairs only were to
tw taken, deducting one third new for old. In
affect, therefore, it excluded all eonsiderstion
<rf the salvage, in the ascertainment of the loss.
The third instruction was, in substance, sim.
liar to the second, except that It did not insist
upon the axelusion of tit* salvage. la effect,
therefore, ft insisted upon the vsluation in ths
policy, as the standard bv which to ascertain
whether the damage was half the value of the
Gracchua or not.
The fourth instruction insisted that to entitle
the plaintiffs to recover for a total loss, the
damage must exceed one half the value of the
Gracchus at the time of the accident; and that
in estimating the damage, the general and par-
ticular averages, as adjusted at New Orleans,
were to be taken, deducting one third new for
old. In effect, 'therefore, It Insisted that [*I8«
nothing but these adjustments were to bt
taken into consideration in ascertaining the
totality of the loss at the time of the abandon-
ment (admitting the abandonment to be suffi-
cient) however imminent might be the dangera,
or great the losses then actually Impending over
the Gracchus. And all three of these prayers
further insisted that the deduction of one third
new for old should be made from the amount of
■pairs, as in the case of a partial loss; In
aining whether there was a right to
abandon for a total loss, upon the ground that
the damage exceeded a moiety of uie value of
the vessel.
The jury found a verdict for the plaintiffs
for a partial loss, assessing the damages at
three thousand four hundred and eighty-nine
dollars snd twenty-two cents, upon which the
court gave a judgment; aa this judgment the
plaintiffs entered a credit for four hundred and
eighty-flve dollars and twenty-two cents, the
amount of the premium note knil interest. The
plaintiffs prosecuted this writ of error.
The case was argued by Mr. Johnson for
the plaintiffs in error, and by Mr Heiedith
and Mr. Stewart for the defendants
Mr. Johnson contended that the judgment
of the Circuit Court should be reversed on the
following grounds:
First. That, under the circumstances of the
case, the loss of the yoyafe in which the
Qracchus was engaged, by the peril she sus-
tsined, entitled tbm plaintiffs to recover for a
total loas.
Second. That the elalm for salvage, and the
arrest and detention of the brig consequent
thereon, entitled plaintiffs to recover for such
loss; and,
Third. That the court erred in not granting
the prayer in plaintiffs' second exception.
It is assumed that the abandonment was inf-
flcicnt. The defendants objected to ita fntm;
that no cause or a suffident cause for it was not
assigned; but the court decided against these
objections.
The instructions of the court, by which
the jury were authorized to allow in the
estimate of the loss one third of the coat of the
new for old, were altogether erroneous. The
plaintiffs claimed for a technical total loss on
the state of things at the time of the aban-
donment. The validity of such a claim cannot
be denied, if at that time the state of the facts
was such as to justify the abandonment. This
was in truth such as to induce the plaintiffs
to consider a total loss *as inevitable. [*S87
The letter of Captain Snow, of esth March,
upon which the abandonment was made on
the 22d of April, IS3S, showed that the salvors
were about to proceed against the vessel, and
stated thst they claimed fifty per cent, as their
salvage. In 3 Kent's Commentaries, MB, th*
SurxEME CouMT or
n the aubject of Abkndanment an
SBT
Authoritiea '
•ummed up.
Tbe value of the veuel wm ten thouund
dollere; for this lum ehe was ineured. The
whole sum received for her wm but about four
thousand dollara. ThJi is the best evidence of
the chu'acter of the loss sustuned by the aa-
What waa the situation of the vesael, from
all the information which had been received,
on the 23d of April, 1&33, when abe waa aban-
doned T Waa there not imminent danger of
actual total tossi attached for salvage, and Bft;
per cent, claimed; and the voyage broken up
and deatrayedl The instruction)! of the court
that the actual amount of aalvage ultimately
Caid was to fumiah the rule toeatimate the
las, were erroneoua. The probable loaa, at tbe
time of the abandonment, is to fix the rule for
abandonment. In this the law of inaurauee In
this country and in England differ.
The loss of the voyage, by the happening of
one of tbe perJIs insured against, waa a good
foundation for abandonment, and for a recovery
for a total loaa. The vessel waa on her home
Toyage from New Orleans, and waa obliged to
return to New Orleans by reason of the acci-
dent, and the courae of the aalvora. Tbe voy-
age was thus broken up. Tbe libel for salvage,
and tbe detention of the venael for repairs were
destructive of tbe voyage.
Tbe voyage insured terminated on tbe 22d
of May; and all the injury to tbe vessel, and
the detention conspqucnt to it, were within the
Eriod of her protection by the insurance.
id tbe fifty per cent, claimed by the salvors
been paid, no doubt of a technical total loss
would have existed; but the master remained at
Kew Orleana, as it was his duty, and to which
he was bound by his obligations to the under-
writers to contest this claim ; and this detention
kept tbe vessel beyond the six months covered
by tbe policy. Thus the detention waa within
the policy. Cited, 3 Kent's Commentaries; 11
Johns. ZHS; 2 Starkie's Sep. S71.
Tbe insurance having been on time mekea
no difference in estimating her loss. It was an
insurance of tbe vcnsel on her voyage, and
during the time; and a guaranty that the ves-
sel should have the physical ability, during
that time, to continue the voyage.
«88*1 'The detention of the veaael after the
accident, gave a full and legal right to aban-
don. The detention was one of the sea risks
insured against, and all legal detentions were
within the policy.
It is also contended that the underwriters
were bound to pay the bottomry bond executed
at New Orleans, for the repairs of the vessel,
the salvage, and the expenses, The under-
writers were certainly liable to pay the whole
of these chargps, and by neglecting to do ao,
the vessel has been aold and taken from her
□wnera. Tbua a total loaa has reaulted.
It is admitted that a detention of a vessel
Insured, by admiralty process ia not a cause of
abandonment, when sii^h detention is for some
cause not comlne within any of the risks of the
policy; but in this case, the detention was on
account of one of the perils insured against.
Thus the lose of the voyage has resulted from
one of the perils Insured against.
Ur. Stewart aod Ur. Hetcdith,
. Hetcdith, for the de-
ruB Umixb SxAxn. IBI
feudanta, denied that there waa aay «m> la
the instructions of the Circuit Court.
Insurance is a contract for indemnity, a^
this contract is fully carried out by the verdict
of tbe Jury. The jury have given the plain-
tiffa all they paid aa salvage, and all the costs
and expenses of tbe repairs consequent to the
injury sustained b^ tbe vessel. But it is con-
tended by the plaintiffs that the adventure ia
which the vessel is engaged— the voyage, sod
its results, upon which the vessel is prtweeding
^is a part of the contract for protectioo by
the underwriters. Thia is not the nature of
insurance. The underwriters are only liatde fat
the perils insured.
Assuming Uie principle to be, in tbe United
States, that underwriters are liable for tfaestata
of the loaa at the time of the abandonment,
there was no ground for the abandonment
when the letter from Captain Snow was re-
ceived. The circumatanccs stated in that letler
do not warrant the allegation that technical
ttital loss had occurred. The vessel had suffered
injury; she had been rescued from greater loss
by the steamboat; she had been carried to Nr«
Ch'leana, and fifty per cent, was claimed aa sal-
vage; but the justice of this claim was denied.
and it was to be contested.
With this letter the insured and the under-
writers were in posseGsion of all the facta, and
the claim of fifty per cent, as aalvage, must
have been seen to be unreasonable and uitjust.
It exceeded the usual charge for the use of a
steamboat on the Mississippi, which "was ['SM
known to be at the rate of ten dollars prr day.
There was not, then, a probability that a tcrh-
nical total loss existed at that lime; and sub-
sequent circumatancea show I'd thst no lose, for
which the assurers were liable, had occurred t*
the extent of fifty per cent, on tbe valui- of tbe
vessel. If the appearance of events, when the
letter from Captain Snow was received, au-
thorized the expectation that (he Iofs would
amount to fifty per cent.; the underwrite™
have a right to look at subsequent cirriinistan-
ces to decide what was the real condition el
the vessel at that time.
The court will find, by a reference to the
whole of the facts in the case, there waa
no foundation for the claim for a technical
total loss. No damage bad been suataJBed
which would aupporl such a claim.
The whole cost of the repairs of the veawl,
and the amount of salvage allowed by the
court, amounted together to two thousand aine
hundred and thirty-ftve dol'ars. The ordprs
for insnrance show that the Gracchua waa
valued at ten or twelve thousand dollars. At
New Orleans, the Gracchus was worth eight
thousand five hundred dollar*. The eaptaia
was offered that sum for her, and he aaid he
would take nine thousand dollars. Tbua aba
was worth at New Orleans and at Oaltimora
nearly tbe same sum, and there waa no ap-
proximation to half of her value by tbe actual
To proceed to the points made for the it'
fen dan ts in the Orenlt Court.
The court instructed the jury on the points
aubmitted by tbe defcndanta.
If the jury find from the evidence that Ifca
Gracchus waa so damaged by the disaatrr »e«-
tlooed in tba letter of Captain Snow, of Marek
tu»
Bbadui Aim OnaoMi v. Thb HurujfD Inbubakcb CoHFunr.
Uth, 1833, ttiAt iha could not be n>t off uid rs-
paiivd without ut expcndituTe of monej' to ftn
Amount azceedlng hmlt hor value ftt the port of
New Orleans after such repairs were m&de,
then the plaJntitTa are entitled to racorer for a
total losa, under the abandonment made on the
22d da; of April, 1833; and in a«c«rtaining
the 4mouDt of such expenditure, the jury must
include the sum for wnich the brig waa liable
to the salvori, according to the decree of the
IMstrirt Court of Louisiana, stated in the evi'
denee; but if the jury And that the vessel could
have been got off and repaired without an ex-
penditure of money to the amount of more
than half her value, then upon tha evidence of-
fered the plaintiffs are not entitled to recover
for a total loss, on the ground that the voyage
IBO*] was retarded or 'lost, nor on aeco iiit of
the arrest and detention of the vessel by the
Kdmiralty process issued at the instance of the
The question was whether the amount of re-
pairs and the salvage was half the value of the
vessel at New Orlenn^, giving the ssinred the
benefit in the c^tionle of the amount of the
aalrsge. Is this an open question in this court T
The policy expired on the 23d of May, )S33.
How far is this point setllsd in the i-ose of Al-
exander V. The Usltimore Insurance Company?
• Cranch, 370; 2 Cond. Rep. 143.
In that case Mr. Chief Justloe Uarshall says
that it has been decided that the state of the
fact must concur with the informatton to make
the abandonment for a tccliniL'ttl total loss ef-
fectual. Cited, also. Amber's Rep. 214; Ch.
Justice Wills' Beporls. MI, 844.
At to how this qiii>stion baa been considered
in Englnnd, cited. 2 Msule A; Selwyn, 240, 247;
Idem. 278, 286, 2D0, 2S3; 4 Maule & Selwyn,
809; 6 Maule & Selwyn, 47; Goas v. Withers, 2
Barrows, 67; Hamilton t. Mendes, Burrows,
1Z12.
The perils in the policy do not include tbe
lOM now set up by the plaintiffs, and there is
no express assumption to insure igainst the
kind of detention for which the loss is nnw
claimed. It must be drrived from implication,
and mu*t be a contiei)iience u( the contract be-
tween the parties to Ihc pcicy of ini'.;r:]n'e.
There was no evidence in the case that the
underwriters had been called upon to pay the
bottomry bond and prevent the sale of the ves-
■el ; nor was any demand made on tbe under-
writers to pay for the repairs of the vessel.
Hie assured elainted a total loss, and did not
proceed as If they held the underwriters liable
to anjthing hut the whole amount of the pol-
icy. C^ted. Da Coata y. Newnham, 2 Term
Rep. 407] e Barnwell A Aid. 613; > Mason's
can. 429.
It Is denied that the assured have a right to
abandon as for a total loss upon a mere proba-
bility of a loss which will exceed flfty per cent.
Thla view of the rights of the assured rests
only on the suggestioa of Lord Ellenborough.
There mnst be a certain subststing loss when
the abandonment is made, exceeding fifty per
It fa not admitted that the right to abandon
for breaking np of a voyage applies to an in-
surance on time. Hughes on Insurance, 300,
311, 314; Smith on Mercantile Law, 17 vol. of
tba law Librair, 14S. The
• Ifc ed.
time is that tha vessel shall he able to proceed
on the voyage during the time, and to pay the
damage she may sustain during that time. It
is no contract for the voyage, or sgainst inter-
ruptions which rest upon it, other than such as
are within the 'perils insured against. [*Sftl
1 Johns. Cases, 293, SM; 6 Serg. ft Rawie,
601 ; 2 Taunton, 302.
This voyage waa not broken up or defeated,
and tbe jury have found that the injury sus-
tained by the vessel did not amount to fifty per
cant, of her value. The finding of the jury
la conclusive on this matter.
The arrest and detention of the vessel by
admiralty process for salvage, did not furnish
grounds for the abandonment. The vessel re-
mained in the possession of the captain. It
tvi ■) R mere obstruction of the voyage, or a de-
leiiiiun of the vessel, which might have been
removed, and for which the captain was bound
to relieve her. He had, as has been stated, the
means to do this; there was no evidence to show
that he made any exertions to do this. Cited,
2 Wnsh. C. C. R. 331; 3 Krnt's Commenta-
des, 304. There is no s^cciiil claims in tbe
policy which includes the loss, and it must
then come within that which proceeds against
pjrils of the sea. But by no reasoning can the
loss be made to amount to fifty per cent, from
perils of the sea. Cited, 6 Maule ft Selw.
iat; 3 Mason, 437; cited, also, 21 Serg. ft
Lowber'a Bn^ish Com. Law Rep. 41.
Mr. Justice St 017 delivered the opinion of
the nsurt!
This cause comes before the court upon a
writ of error to the Circuit Court of Maryland
District. The original action was upon a pot-
icy of insurance dated the 22d of November,
1R32, whereby the defendants. The Maryland
Insursnce Compsnv, caused the plaintiffs, by
their agents {William Howell ft Son), to be in-
Hured, lost or not lost, ten thousand dollars, at
a premium of four per cent., on the brig Grac-
clms. Snow, ni^ler (valued at that sum), at
nnd from Baltimore, for six calendar months,
commencing that day at noon; and if she be
on a passage at the expiration of the time, the
i\:-k' to continue at tbe same rate of premium
until her arrival at the port of destination.
The declaration alleged a total loss by thi> cast-
ing ashore and stranding of the brig on the 23d
of March, 1833, in the River MixsiBsippi. Up
on the trial of the cause, it appeared in evidence
that the brig sailed from Baltimore on a voyo^
to New Orleans, and safely arrived there, and
took on board part of her cargo {pork and
sugar) at that port on a voyage for Baltimore;
and about the middle of the 23d day of Mareh,
1B33, sailed from New Orleans, intending to
proceed to Sheppard'a plantation, on the River
Mississippi, about thirty-three miles below New
Orleans to take in the residue of her cargo for
*the same voyage. At the English [*SB8
Turn, about twenty-two miles from New Or-
leans, the brig attempted to come to anchor,
and In so doing lost the small bower anchor,
and then dropped the best bower anchor,
which brought her up. The next morning,
while the brig was proceeding on her voyage,
she struck on a log, broke the rudder pintles,
wh<>n she fell off and went on shore, A signal
' waa then nude for a ateamboat in sight, which
Sovman Ooou cr thk Umm Sun*.
mn* to the assistance of the brig, and in kt-
temptlng to faaul her ofF. the hawser parted. It
was then found that the bri^ was making water
verj fast. Help was obtained from a neigh
bonng plantation. The; commenced pumping
and discharging the carKO on board of the
steamboat; and after diecbarg^ng all the pork,
and a part of the sugar, thej succeeded in free-
ing the ahip on the afternoon of the same da;.
She was ttien got off and proceeded to New
Orleans, where she arrived the same ni^ht; she
continuing to leak, and both pumps being kept
going all the time. The next dajr the master
understood that the steamboat claimed a sal-
vage of fifty per cent., and intended to libel for
it. On the 27th of the same month the brig
was taken across the river tor repairs. On the
same daj the brig was Ubeled for the salvage
in the District Court of Louisiana.
On the 2eth of March, Snow, the master,
wrote a letter to one of the owner*, containing
an account of the loss and state of the brig;
and alno of the claim by the salvors of fifty per
cent., which the underwriters on the cargo and
himself had objected to: adding that the;
should hold the steamboat liable for any dam.
age that might be incurred on account of the
detention.
On the 2Zd of April, Messrs. Howell A; Son
addressed a letter to the company, submitting
the letter of the 26th of March to the company,
and say therein: "In consequence of the dam-
age, together with the detention that must
grow out of a lawsuit (in which it appears that
the vessel is involved), the voyage being broken
up; we do hereby abandon to you the brig
Grmcchus, as insured in your ofRce, per policy
Ko. 13T03, and claim for a total loss.'^ On
the liame day the company returned an answer,
saying: "We cannot accept the abandonment
tendered in your letter of this date, but expect
you to do whnt is necessary in the case, for the
safety and relief of the vessel."
On the Sth of the ensuing May, the District
Court decreed one quarter of the value of the
vessel and cargo (estimated at seven thousand
dollars) as salvage; the brig being valued at
SSa*] two thousand five 'hundred dollars.
On the 14th of the same month the master got
possession again of the hrig, the salvage hav-
ing been paid. On the 3d of June, 1833, the
brig was repaired and ready for a freight; and
early in June she sailed for Baltimore, with a
partial carj^o on Imard on freight; and duly ar-
rived there In the latter part of the same
month. The repairs at New Orleans amounted
to the sum of one thousand six hundred and
ninety dollars and fifteen cents; and the share
of the brig, at the general average or salvage,
to the sum of one thousand two hundred and
forty-five dollars and aeven cents; in the whole,
amounting to two thousand nine hundred and
tbfrtf.five dollars and twenty-two cents. To
meet this sum and some other eirpenses, the
master obtained an advance from Messrs. Har-
rison, Brown A Co., of New Orleans, of three
thousand seven hundred and fifteen dollars and
forty-oiM cents, and gave them as security
therefor a bottomry bnid on the Gracch" '-'■
the principal sum, and °" " — " '
time premium, payable
Uw bris at Baltimore.
On tSii bottomry bond the brie «
Sift
in Baltimore; and no elt^m being faitn;Mcd
by any person, ehe was by a decree of tbe Db-
triet Court of Maryland, on the 6th of Sep-
tember, 1S33, ordered to be sold lo aatisfy tks
bottomry bond; and she was accordingly soU
by the marshal about the EOth of the sams
month, to John B. Howell, for four thousaai
seven hundred and fifty dollars; and ob the
24th of the same nonth there was paid U) ths
attorney of the libelant, the full amount dw
under the decree of the court. On tbe saae
day tbe president of the companjr addressed a
Tetter to Messrs. Howell ft Son, >n which they
say: "We have examined the statements of
general and particular average, and tbe ac-
counts relating thereto, which you handed as
some days ago, respecting the e^cpenses in.
curred on the brig Gracchus, at New Orleans.
Although some of the charges are of « descrip-
tion for which the company is not liable by the
terms of their policy; yet, wishing to act lib-
erally in the case, we have agreed to admit
every item in the accounts, and tbe diffennt
amounts will be as follows." Here follow* a
statement, deducting from the repairs one thiid
new for old, and admitting the sum of tws
thousand four hundred and nine dollars sad
eleven cents to be due to the plaintiffs; and in-
closing the premium note, end a check for tbr
amount. The letter then adds: "If you tai
any other charge, etc., has been paid sit New
Orleans, in order to raise the funds on bottom.
ry, we will pay our full proportion of thr
same, upon being made acquainted with tbe
amount.'^ On the aame day Messrs. Howell i
'Son returned an answer, refusing to [*>•!
receive the premium note and check, adding.
"We should do them {the owners) great ia-
justice to make such a settlement. Our iqui-
lon is, that in taw and equity, they have a
claim for a total loss,"
These are the principal facts material to W
mentioned, though much other evidence «ai
introduced into the cause, upon collatos)
points, by the parties.
The counsel for the defendants, after the evi-
dence on each side was closed, moved the court
to instruct the jury as follows;
Defendants' 1st Praypr— The defendants. t<
their counsel, pray the court to instruct fit
jury thst the notice of abandonment of Iht
22d April, 1B33, and the accompanying letttf
from Captain Snow, of the 25th of Uaitk
as given in evidence by the plaintifTs, do •«*
show or diartose facts which in law justify tlN
offer to abandon then made; and tlirrefoR.
tnat in the absence of all evidrnce that fH
aliandonment was accepted by the defendaata
the plaintilTs are entitled to recover only to •
partial loss.
2. That if the said notice of abandonntflt
was sufficient, still tbe jury ought to find s
verdict for a partial loss only, unless they sksl
believe from the evidence that the Graixl*
suffered damage from the accident that brfd
her on the 24th of March, 1833. to more tl«
one half the sum at whirh she wkb vslnrd >>
the policy; and that in e'timating said daa*^
the jury ought to take the cost of bar rcpriN
only, deducting one third therefrom, •• i* 11*
eaae of adjusting a partial loss.
3. That if the said abandonment wa« *^
dent, U la aasuDsd in the precedins gmj*
BUUUX AHO GlOBONS V. TUK MABrtAND iHSUKAHOB CoUFUII.
tha evidence, that the damage m> •uatained b;
said brig exceeded in smouot one half of the
■um at wbich »h» was valued in the policy; and
that in estimating tb« cc«t of her repairs for
the purpose of ascertainisg the amount of
■uch damage, the jurj are bound to deduct
one third therefrom, aa In th« caae of a parli^
tOM.
4. That if said abandonment waa lufficient,
■till the jury out^ht to find a partial loss only,
unleaa thej ahall believe that the damage aa
aforesaid waa more than one half the value of
the said brig at the time the accident happened,
according to the proof of such value as given
in evidence; and that in ettimatiog the amount
of auch damage, the jury are to take the
amounts of the general and particular averages
SflS*] *as adjusted at New Orleans, deducting
oat third from the actual cost of repairs.
But the court refused to give the instTuction
prayed for, and gave to the jury the following
instruction: If the jury find from the evidence
that the Oracchua was so damaged by the dia-
aater mentioned in the letter of Captain Snow
of Mareh 2fith, 1833, that she could not be
got olT and repaired without an expenditure
of money to an amount exceeding half her
value at the port of New Orleans after auch
repoira were made, then the plaintiSs are eu'
titled to recover for a total loos, under the
abandonment made on the 22d day of April,
1833] and in ascertaining the amount of auch
expenditure, the jury must include the sum
tor which the brig waa liable to the salvors,
aoeording to the decree of the District Court
of Louisiana stated in the evidence; but if the
jury Bnd that tlie vessel could have been got
oB and repaired, without an expenditure of
money to the amount of more than half her
Tftlue, then upon the evidence offered, the
Rlaintiffs are not entitled to recover for a total
>Bs, on the ground that the voyage was re-
tarded or lost; nor on account of the arrest
and detention of the vessel by the admiralty
process, issued at the instance of the salvors.
The defendants excepted to the refusal of
the conrt to give the instructions prayed, and
*lso to the opinion actually given by the court
in their instructions to the jury. The plaintiffs
■Uo excepted to the same opinion given by the
their letter of the 22d April, authorized and
required the proper expenditures to be made
upon the vessel, for which aaid underwriters
ftr« liable under their policy; that no funds be-
ing supplied by them in New Orleans to meet
this loss, and the salvage and repairs having
been paid for by money raised upon respon-
dentia upon the vessel; if the Juty shall find
that aaid veaael, under the lien of this bond,
cmme to Baltimore, and the defendants were
then apprised of the existence of such reapon-
dentia, and were also informed of the exist-
ence of the proceedings thereupon againat said
veaael, and they neglected to pay so much
thereof aa they ought to have paid to relieve
eald TMsel; and omitted to place her in the
h*nda of the owners, discharged of so much of
■ueb bottomtj aa tha underwriter! were liable
• bad.
for; and in consequence thereof, said vessel
was libeled and condemned and sold, and
thereby wholly lost to the 'pluinLilfa, [*X9S
then the plaintiffs are entitkd to recover for
the whole value of the vessel."
The court refused to give this instruction,
and the plaintiffs excepted to the refusal, and
the court signed a bill of exceptions upon both
exceptions- The jury found a verdict for the
plaintiffs for three thousand four hundred and
eighty-nine dollars and iwenty-two cents, upon
which judgment passed for the plaintiffs. And
the present writ of error is brouLilit by the
plaintiffs for the purpose of reviewing the in-
!)tructions above stated, so far as ihcy exccpii^U
thereto.
Although the prayers for the instructions by
the defendants are not brfore the court for the
purpose of direct consideration, as the defend-
ants have brought no writ of error; yet It is
impossible completely to understand the nature
and extent, and proper construction of the
opinion given t^ the court, without adverting
to the propositions containud in them; for to
them, and to them only was the opinion of the
court given as a response.
The second instruction asked by the defend-
ants, in substance, insisted that to entitle the
p'aintiffs to recover for a total loss, the damage
to the Gracchus from the accident should be
more than one half the sum to which she was
valued in the policy; and that in estimating
that damage, the costs of the repairs only were
to be taken, deducting one third new for old.
In effect, therefore, it excluded all considera-
tion of the salvage In the aacertainment of the
The third instruction was in substance sim-
ilar to the second, except that it did not insist
upon the exclusion of the salvage. In effect,
therefore, it insisted upon the valuation in the
policy, as the standard by which to ascertain
whether the damage was half the value of tlie
Gracchus or not.
The fourth instruction insisted that to en-
title the plaintiffs to recover for a total loss, the
damage must exceed one half the value of the
Gracchus at the time of the accident; and that
estimating the damage, the general and par-
ticular averages, as adjusted at New Orleans,
were to be taken, deducting one third new for
old. In effect, therefore, it Insisted that nothing
but these adjustments were to be taken into
consideration in ascertaining the totality of the
loss at the time of the abandonment (admitting
the abandonment to be sufficient), however im-
minent might be the dangers, or great the
losses then actually impending over the Grac-
chus. And all three of these prayers further
insisted that the deduction of one third new
for old should be made from the amount of
the repairs, as in the case of a 'partial [*SBT
loss, in ascertaining whether there was a right
to abandon for a total loss, upon the ground
that the damage exceeded a moiety of the value
of the veaseL
The instructions of the court actually given
the damage exceeded half the value of the brig
at the port of New Orleans, after such repairs
were made, including therein the salvage award-
ed to the salvors; t^ plaintiffs were entitled te
llSl j
M7
SupBEita Co'jiT or tu tlinm Shatm.
nearer for a totnl lou, under the abandonment
made on the 22d of April, 1833. 2. II the ax-
Gnditures to get olT and repair the brig wen
IS than the half of such value, then the plain-
tiffs were not entitled to recover for a total loit,
upon the ground tlmt the vojags was retarded
or lost; nor on account of the arreit and deten-
tion of the brig, under the admiralty proceM,
for the lalrage-
The question is, whether these instructions
were correct. In considering the first, it
material to remark that by the well settled prii
cip^es of our Isw, the state of the facta, and not
the state of the information at the time of the
abandonment, constitutes the true criterion by
which we are to ascertein whether a total lose
has occurred or not, for which an abandon'
ment can be made. If the abandonment, whvn
made, is good, the rights of the parties are de-
finitively fixed, and do not become changed
by any subsequent events. If, on the c'
hand, the abandonment, when made, is
good, subsequent circumstances will not affect
it, so as, retroactively, to impart to it a valid-
ity which it had not at its origin. In some re-
spects, our law, on this point differs from that
of England; for, by the latter, the right to a
total loss vested by an abandonment, may be
devested by subsequent events, which change
that total loss into a partial loss. It is unnec-
essary to cite cases on this subject, as the
diversity is well known, and the courts in
neither country have shown any disposition of
late years to recede from their own doctrine.
The cases of Rhinelander v. The Insurance
Company of Pennsylvania, 4 Cranch, 2D; and
Marshall v. The Delaware Insurance Company,
4 Cranch, 202, are direct aflirmatioiis of our
rule; and those of Bainbridt'e v. Neilson, 10
Bast's Itep. 329; Patterson v. Ritchie, 4 U. &
Selw. 304; and Mlver v. Henderson, 4 M. A;
Selw. 684, of the English rule.
In caaea where the abandonment is founded
upon a supposed technical total loss, by a dam-
age or injury exceeding one half the value of
the vessel, although the fact of such damage
SD8*] or injury must exist *at the time, yet
It is necessarily open to proofs, to be derived
from Biibnequent events. TliuH, for example,
if the repairs, when subsequently made, clearly
exceed the half value, it is plain that this af-
fords one of the heat proofs of the actual dam-
age or injury. On the other hand, if the sub-
sequent repairs are far below the half value,
this, so far as it goes, affords an inference the
other way. But it is uot, and in many cases
cannot be decisive of the right to abandon. In
many cases of stranding, the state of the veaael
■t the time may be such, from the imminency
of the peril, and the apparent extent of ex-
penditures required to deliver her from It, as
to justify an abandonment; although, by some
fortunate occurrence, she may be delivered
from her peril, without an actual expenditure
of one half of her value after she is in safety.
Under such circuni stances, if, in all human
(irobabliity, the expenditures whieh must be
ncurred to deliver her from her peril, are, at
tha time, so far as any reasonable calculations
can be made, in the highest degree of probabil-
ity, beyond half value; and if her distress and
peril be such as would induce a considerate
owner, uninsured, and upon the spot, to witb-
tlt*
hold any attempt to get the Teaaol oB, faeeaMt
of such apparently great expeoditurea, tkt
almndonment would doubtless be good- It wm
to sucb a case that Lord Ellenborough allgdei,
in Anderson r. Wallis, 2 H. ft Sehr., when k«
said: "There la not any case, nor prindpla,
which authorizes an abandoament, ubIon
where the loss has been actually a total l«as, or
in the highest degree probable at the time of
the absindonment. Mr. Chancellor Keat, ia
his learned Commentariee (vol. 3, 321), has laid
down the. true results of the doctrine of lav tm
this subject. "The ri^t of abandonment (says
he) does not depend upon the certainty, tot
upon the high probability of a total loss, eithv
of the property or of the voyage, or botli. ne
insured is to act not upon certainties, but upoa
probabilities; and if the facts present a case of
extreme hazard, and of probable expeiMe, ex-
ceeding half the value of the ship, tbe insured
may abandon, though it should happen thst
she was afterwards recovered at a leas txptmt.'
We have no difficulty, therefore, in acceding te
tbe argument of the coimsel for the plaintJITs
in error on this point. But its applicatioa ta
the ruling of the court will be considered here-
after.
Id respect to the mode of abcertaiaiDg the
value of the ship, and, of course, whether she
is injured to the amount of half her Talue, it
has, upon the fullest consideration, been h^
by this court that the true basis of the valuatMB
is the value of the ship at the time of tbe disa**
ter; 'and that, if after the damage is or [*>■>
might be repaired, the ship is not, or wnoU
not be worth, at the place of the repairs, doabU
the cost of the repairs, it is to be treated as a
technical total loss. This was the doctrine as-
serted in the Patapsco Insurance Compajiy v.
Southgate, G Peters, 604, in which the eomt
below had instructed the jury that if the vessd
could not have been repaired without an ex-
penditure exceeding half her Talue at the port
of the repairs, after tbe repairs were made, it
constituted a total loss. This court held that
instruction to be entirely correct. It follow^
from this doctrine, that the valuation of the
vessel in the policy, or the value at the hone
port, or in the general market or other ports,
constitutes no ingredient in aacertaiaiag
whether the injury t^ the disaster is more than
one hair tbe value of the vessel or not. F«r
the tike reason, the ordinary deduction ia caws
of a partial loss of one third new for old, troai
the ri
• of a
technical total li .,
half of the value of the vessel. That rule * .
poses the vessel Ui be repaired and returned to
owner; who receives a correspondeot b^»-
from the repairs beyond his loss, to ths
amount of one third. But in the case oi a
total loss, the owner reerives no aueh bearft:
ths vessel never returns to him, but ia tisis-
ferred to the underwritsn. If the actual east
of the repairs exceeds one half of her valst
after the repairs are made, then the c«s« Mis
directly within the predicament of the dortiiar
asserted in the case of 6 Peters, S04. The sbbs
limitations of the rule, and the reaaona «rf H.
are very accurately laid down by Idr. Chanedlsr
Kent in his Commentaries (3 vol. 330), sad ia
Da Costa T. Newnham, 2 Term R^. 407.
If, with these principles in Ti«w, we •■*»
Pe««n 1>-
lua
I AM» GiBMiW V. Thk HABTLAin) Inburanoi Coup&nt.
ine tbs lint iDBtntetion girm Ib this ckM In the
Ciieuit Court, it will b« found to be perfectly
eomct. Indeed, thkt pert of the Instruction
whicti dBClarea tlut If the brig "could not be
got off ud repaired without an expenditure of
money to an amount ezceedinK half her value
at tbe port of New Orleani, «.fter auch rcpaira
wen mMe, then the plaintifTs are entitled to re-
cover for a total loea under the abandonment,"
ii predael/ in tbe terms of tbe inRtruction
■iven In Tbe Patapico Inaurance Company v.
Sonthgate, S Petera, 604. Tbe error, which
hu baia Indited on at the argument by tbe
plaintiff!, is in the additional direction that,
In Bseertaining the amount of such expendi-
ture, the Jury must Include the sum tor which
tiM lirig was liable to the salvort, according to
the decree of the District Court of Louisiana,
400*] stated in 'the evidence," wbieb, it is
eontended, removed from the eooBideration of
the Jury the right to take into the account tbe
Ugh probability, at the time of the abandon-
ment, of the allowance of a greater salvage,
ind even to the extent of the Sfty per cent.
then claimed by the salvors. And in support of
Uia argument, it is insisted that the state of
Ae fieta, and the high probabilities at tbe
Jme of Uie abandonment, constitute the gov-
Tntng rule, and not the ultimate result in the
uhaequent evente. But it appears to us that
lie argument is founded upon a total misunder-
tandin^ of tbe true import of this part of the
ctual salvage decreed, because that was, in
rath, k part of the iou. Tbe instruction was,
herefore, not a limitation restrictive of tbe
Ighta Knd claims of the plaintiffs, but, in fact,
direction in favor of toeir lighta and claims,
nd in support of the abajidonment. This is
smonatrated by the than actual position of tbe
uwe- The defendants had aslced an instruc-
OB that the easts of the repairs only, exclusive
r the salvage, should be taken into considera-
on In estimating the half value; and also that
M one third new for old should he deducted
om the amount of the cost, in estimating the
tif value. The court, in effect, negatived
ith instruetions; and in tbe particulars now
>jected to, there was a positive direction to
i« jury not to exclude, but to includi? the sal-
ine, in tbe estimate of the loss. In this view
the matter, the instruction was most favor-
il* to the plaintiffs; and, so tar from exclud-
K evidence which mi^ht show the amount of
tual damage at the time of the abandonment,
reaorted, and very properly resorted, to the
btMquent ascertainment of salvage as positive
Idence, that to that extent at least, tbe actual
mage was enhanced beyond the cost of the
pairs. We are entirely satisried with this
rt at the instruction, In this view, which
nns to ns to be the true Interpretation of it.
[n respect to ths other part of the Instruction
era ia no substantial dlfflculty. The mere
^ardatton of the voyage by any of the perils
lured against, not amounting to or producing
iotml incapacity of the ship eventually to per-
ils tbe voyage, cannot, upon principles well
established, be admitted to constitute a tochnkal
total loBS, which will authorize an ahandoa*
ment. A retardation lor the purpose of repair-
ing damages from the perils insured againrt,
that 'damage not exceeding one moiety [*401
of tbe value of tbe ship, fatis directly witUa
this doctrine. Under such circumstances. If
the ship can be repaired and is repaired, and
is thus capable of performing the voyage, there
is no ground of abandonment founded upon
the conaideration that tbe voyage may not be
worth pursuing for tbe Interest of the ship
owner, or that the cargo has been injured so
that it ia not worth transporting farther on the
voyage; for the loss of tbe cargo for the voyage,
has nothing to do with an insurance upon Uie
ship for tbe voyage. This was expressly held
by this court in the case of Alexander v. I^
Baltimore Insurance Company, 4 Cranch B.
370, where it was decided that an Insurance on
a ship for a voyage was not to be treated as an
insurance on a ship and the voyage, or as an
undertaking that she shall actually perform the
voyage: and, only, that notwithstanding any of
the perils insured against, she shall be of ability
to perform tbe voyage, and that the underwriters
will pay any damage sustained by her, from
those perils, during the voyage. Tbe court
further held that upon such an insurance, a
total loss of tbe cargo for the voyage was not •
total loss of the ship for tbe voyage. In respect
to the point of retradation for rrpairs, the more
recent authorities contain reasoning altogether
satisfactory, and consistent with the true nature
and objects of policies of insurance. The sub-
ject was a good deal discussed in the case of
Anderson v. Wallis, 2 Maule & Selw. 240,
which was a policy on cargo; and again in
Bvcrth V. Smith, 2 M. & Selw. 278, which was
a policy on freight; and again in Falkner v.
Hitchie, 2 M. ft Selw. 290, which was a policy
on ship; and in each of the cases tbe court came
to the conclusion that a mere retardation of the
voyage by any peril insured against, did not
entitle tbe insured to recover for a total loaa,
if the thing insured was capable of perforining
the voyage. Lord Ellen bo rough, in the first
case, said; "Disappointment of arrival is a new
head of abandonment in insurance law." "If
the retardation of the voyage be a cause of
abandonment, tbe happening of any marine
peril to the ship, by which a delay is caused in
her arrival at the earliest market, would elwo
be a cause of abandonment. I am well aware
tbnt nn insurance upon a cargo, for a particular
vojDge, contemplates that the voyage shall ba
performed with that cargo; and any risk, which
renders the cargo permanently lost to the as-
sured, may be a cause of abandonment. In
like manner a total loss of cargo may be effected
not merely by the destination of that cargo,
but by a permanent Incapacity of the ship
"to perform the voyage; that is, a de- ["ioa
struction of the contemplated adventure. But
the case of an interruption of the voyage does
not wnrrnnt the ansiired in totslly disengaging
himself from the adventure, and throwing this
burden on the underwriters." In Falkner v,
liiti'hie, 2 M. ft Selw. 290, his lordship nddedi
"What has a Ions of tbe voyage to do with the
loss of the ship?" mpaning, as the context '
shows, that the Iosh of tbe voyage is no ground
of abandonment, where the ship is not damaged
llSl
SOPREHIf COUBI OF THE LNITED StAttM.
ta an extent irhlch permanentl/ duablea her to
BirfortD it. The ume doctrine vta affirmed in
unt V. The Royal ExcliKHge Aaeurance Com
puiv, S M. A Selw. 47; and in Naylor v.
Tkylor, g Bbtd. &. Creew. 718. And it was
knig ago recognized b; this court, hj necesuirj
Implication, Id the cue of Alexander v. The
BaJtimore Insurance Company, 4 Cranch R.
370; Rnd Smith v. The Universal Insurance
Company, 6 Wheat. R. ITS. In thia Utter
oftM the court aaid: "The ioaurers do not
undertake tbat the voyage (hall be performed
without delay, or that the perils insured against
■ball not occur. They undertake only for loases
•uatained by those pmis; and if any peril docs
act upon the subject, yet if it be removed befort
any loss takes place, and the voyage be not
thereby broken up, but is, or may be resumed.
the insured cannot abandon for a total loss."
Language more explicit upon this point could
•carcety have been used.
Nor is there any, the slightest differeacs in
law, whether the retardation or temporary sus-
pension of the voyage be for the purpose of re
pairs, or to mc^et any other exigtncy whicti
interrupts, but does not finally defeat the actual
resumptiun of it. The diitpntion of the ship.
under t^e admiralty proopedings, does not.
therefore, in any manner change the poature oF
the case. It is admitted on ail sides, and in
deed it admits of no legal controversy, that this
detention cannot be construed to be a substan-
tive peril within the clause nf the policy respect-
ing "restraints and detainments of all kings,
prmces or people;" for the restraints and de
tainments tliire alluded to are the operations
of the sovereign power by an exercise of the
Til major, in its sovereign capadty, controlling
or devestine. for the tims. the dominion or
authority of the owner over the ship, anil not
proceedings of a mere civil nature to enforce
privatP rights, claimed under (he owner for
services actually rendered in the preservation
of his property. This, indeed, it it admitted
of any doubt, would be disposed of by the
reasoning of tlie court in Npnbitt v. Lushington.
4 Term R. 783; and Thornely v. Hebson, 2
403*] BHrn. & Aid. R. £13; see 'also, 3
Kent's Com. 304, 328. In truth, the deten
tion by the admiralty propcss waa, in this
ease, as la apparent from the admitted facts
a mere retaidatloo of the voyage. The brig
was delivered from that proceeding; the salvage
was paid : and she not only was capable, but
dtdr in fact, resume and complete her voyage
to Baltimore.
The considerations already suggeated dispose
of the other point raised under this instruction,
as to the loss of the voyage. It is apparent that
the lose of the voyage spoken of, and neces-
■arily implied In this instruction upon the ad-
mitted state of the facts, was the loss of the
cargo for the voyage, and not the loss of tbe
vessel by incapacity to perform the voyage. If
the veaset could, as the instruction supposes.
be got off and repaired without an expenditure
exceeding half her value, and be thereby en-
abled to resume the voyage; it Is plain that the
lots of the cargo for that voyage constituted no
total loss of the vessel for the voyage. It was
abaolutcly Impossible for the court, upon the
■uthorillea already cited* to arrive at any other
•oncluaion.
]1S4
lonment did not demonstrate any incanaoty
of the ship to resume her voyage aftar tbs i»
paira; and in point of fact, as iMa been already
suggested she not only did resume it, bat
actually performed it. Tbe insurance was upon
time, and tbe policy actually expired, by its
own limitation, upon tbe 22d of llay, 1833, bs-
fore she had actually resumed her voyaga. But
that can make no difference. An insuraae*
□n time differs as to this point in no easential
manner whatsoever from an inauranca upon a
particular voyage except In this — that in the
latter case the insurance ia upon and for a spe-
cific voyage described in the policy; wbcreaa a
policy on time insures no specilic voyage, bat
it covers any voyage or voyages ishatsoevsr
undertaken within, and not exceeding, in poist
of duration, the limited period for which Uw
insurance is made. But an insurance on tine
by no means contains any undertaking on th*
part of the underwriters that any particular
voyage undertaken by the insured •rithin tbe
prescribed period, shall be performed before
the expiration of the policy. It warranta noth-
ing as to any retartlation or prolongution •(
Llie voyage, but only that the ship ahatl be
lapnble of performing the voyage undertakes.
notwithstanding any loss or injury which mar
accrue to her during the time for which she m
insured, and of resuming it, if interrupted. In
against during the time 'for which the ['404
policy continues, be totally and premaaently
'ost or disnbled from performing the voyage
then in prusicsa, or any other voyage withis
the scope of the policy. The case of Pole t.
Fitzgerald, Willea's Rep. Ml; S. a Amber's
Kep. 214, afTords a striking illustration of this
Joctrine; and whatever doubts may be enlef'
tained aa to some of tbe dicta in that caae. Lord
t^llenborough has well said that it may be o(
great use to resort to It, in onler to purify the
mind from these generulitiea, respecting! ihf
2 Maulc & Selw. 293. Th.^re is no error, tbca.
in the instruction actually given to thp jury ia
the response of the court to those asked by the
rlefcndnnts.
In the next place, as to the instruction atked
for the rrpairs. and had not supplied the sp
propriate funds for these repairs and for tar
salvage, and the bottomry bond was given to
secure them; and the underwriters were ap-
prised of the admiralty proceedings at Bam-
more, and there neglected to pay ao much there-
of as they ought to have piiid to discharge the
same, and that the vessel in consequence there-
of was sold under those proceedinga; then tbe
plaintiffs were entitled to recover for the wholi
value of the vessel. This Instruction, it may be
remarked, proceeds upon the supposition th>t
there was not a technical total loss, entitlag
the plaintifTs to abandon, and that the ahandcn-
ment of the 22d of April was not available f«r
flie plaintiffs. For, if It had br^n, then tke
underwriters would have become from tkal
time the owner* of tlw ship; and tbe mlM
I t%
I83S
Bbadlik and CiDoo.NS V. Tub Maivlakd iNBUKANct Cotaittn,
hML*p«. whalever Ihey might be, would be on
Uii'ir tolr account. Thr cnae put, then, iiip-
pijs>-B tiiat, in point of law, in the case of a
tnercif partial loss to the ihip, if money is
taJccn up on bottomry for the necrasary repair*
and expenditures, it becomes the duty of the
underwriters to deliver the ship from the bot-
tomry bond to the extent of their liability for
the expenditures; and that It tbey do not, and
the vessel is sold under the bottomry bond, they
ara liable not only for the partial loss, but for
■11 other losses to the owner from their neglect.
We know of no principle of law which justi-
fies any such doctrine. The underwriters en-
gage to pay tlie amount of the cxpenditurpa and
Unae* directly flowing from the perils insured
against, but not any remote or conseijuential
lossee to the owners from their neglect to pay
tlie ssme. It might be as well contended that
40S*1 "if by the neglect to pay a partial loss
the owners were prevented from undertalcing a
Dew and profit able voyage, the underwriters
would be responsible to them for such conse-
quential loss. The maxim here, as in many
other ci>acB in the law, is causa proxlma non
remota spe<'tBtur. The underwriters are not
bound to supply funds in a foreign port for the
repairs of any damage to the ship occasioned
by a pTil insured against. They undertake
only to pay the amount after due notice and
proof of the loss; and, usually, this is to be
done (as was in fact the present case) after a
p.~eacribed time from such notice and proof of
tbr loss. If to meet the expenditures for the
repairs the master is compelled to take up
money on bottomry, and thereby an additional
premium becomes payable, that constitutes a
pait of the loss for which the underwriters are
liable. But in cases of a partial loss, the money
upon bottomry is not takon up on account of
tne underwriters, but of the owner; and they
becoma liable to the payment of the loss, wheth-
er the bottomry bond ever becomes due and
payable or not. In short, with the mode by
which the owner obtains the necessary ad-
vances, they have nothing to do, except that
they must bear their share of the increased ez-
penaes to furnish the repairs, as a common sac-
riQce. Indeed, it seems difficult to understand
upon what ground it Is that in case of a partial
loss the owner is exonerated from the duty of
delivering his own ship from the lien of the
bottomry bond, and is at liberty to throw upon
tfae underwritera the whole obligation of dis-
charging it, under the penalty of i>eing other-
wise responsible ID caae of a sale; not for their
share of the loss (assuming that they were at
ftll bound to discharge any part of the bond),
but tor the whole loss. Upon what ground can
it be said that the loss of the vessel by the sale
in this case is attributable to the neglect of the
underwriters, which does not equally apply to
the owners. They had at teaat, upon their own
argument, an equal duty to perform, for the
underwriters were not liable for the whole
amount of the bottomry bond, but for a part
only, and the owners were bound to dischargs
the residue. Row, then, can they call upon
the underwriters to pay them a total loss on ac-
count of a sale, which upon their own argu-
ment was as much attributable to their own
nrgieet a* to that of the underwriters. But we
wiab to be understood as putting this point up-
on Its true ground in point of law; and that U,
that In the ease of a partial loes, where monsy
is taken up on bottomry bond, to defray the
expenditures to repair it, the underwriters have
nothing to do with the bottomry 'bond, [*40S
but are simply bound to pay the partial loss,
including their share of the extra ezpensea of
obtaining the money in that mode, as a part
of the loss. If it were otherwise, any partial
loss, however small, might, if money were
taken up on bottomry to meet it, be converted
at the win of the owner into a total loss, if the
nnderwriters should neglect to pay to the own-
er the amount of such partial toss. The esse of
Thornely v. Hebaon, 2 Barn, ft Aid. 613, In-
culcates a very different doctrine. It was there
held that even in the case of a libel for salvage,
it is the duty of the owner, if he can, to rafse
the money to pay the salvage; and if he makes
no such attempt, but BUlTers the ship to be sold
under the admirslty pron^^s, he cannot there-
by convert a loss which is partial into a total
loss. And It was there further said by Ur.
Justice Bayley (what is entirely applicable to
the present case) that the sale, in order to con-
stitute a total loss in such a case, must be
from necessity, and wholly without the fault of
the owner.
The instruction asked in the present instance
seems to have proeeedL-d wholly upon the ground
of the doctrine asserted in the case of Da Costa
T. Newnham, 2 Term Rep. 407. But assum-
ing that case to have been decided with entire
correctness upon its own particular circum-
stances, it seems difficult, consistently with the
principles of law, to apply the doctrine to cases
which are not exactly in the same predicament;
and It is not the flrst time that an attempt has
been made to press that case into the service of
other cases which arc essentially different. 'The
whole argument turns upr>n this— that the brig
never came into the hands of the owner free
from the Men of the bottomry bond, and there-
fore the total loss by the sale is properly at-
tributable to the neglect of the underwriters.
But the same arfrument would equally have ap-
plied if there had been, for the first time, ad-
miralty proceedings in the home port against
the brig {without any bottomry bond having
been given) for the repairs thus made in a for-
eign port, ax well as for the salvage. Yet no
doubt could have been entertained that, under
such circumstances, the underwriters would
not have been bound to deliver the vessel from
the liens thus incurred, at the peril of other-
wise becoming answerable for a total loss. In
what essential particular Is the case changed
by the substitution of an express lien by bot-
tomry for an implied lien by the maritime lawT
' I none, that we can perceive.
But what were the circumstsnces of the case
of Da Costa v. NewnhamT In that case the in-
uranee was for a voyage from Leghorn to
London, The ship met with an acci- (■40T
dent in the course of the vovage, and put Into
Nice for repairs. Upon receiving notice there-
of, the assured wished to abandon, and, indeed,
was entitled to aluindnn; but the underwriters
insisted upon the ship's being repaired, telling
bim to pay the tradesmen's bills. He consent-
ed, at last, that the rrpairs should be done, but
refused to adi-ance any money; in consequence
of which it became necessary to take up a large
II SB
40T
SupBEUB Cuuir or tub Uritkd StAxn.
turn ol money on a bottomry bond, to defmy
the BzpenaeB, The ship rcHumpd atid perforcarA
her voytige; and after licr arrival, the under-
wrlton were applied to to take up the bottomry
bond, but they refused. Ad m rally proceed -
ion were, aa it should aeem, accordingly in-
atftuted, and the ship waa Bold for aiz hundred
euincaa; the bottomry bond being for rix hun-
dred pounds, which, with the intercHt, amount-
ed to a larger aum, viz., six hundred and aev-
cDty- eight pounds.
The question under these circumstances was
whether the plaintiff was entitled to recover.
Mr. Justice Butler, who tried the cauae, was of
opinJon, under the circumatancea, that for ail
the aubaequent Injury which had accrued to the
owner, in consequence of the refusal of the
underwriters to discharge the bottomry bond,
•nd by which the owner was damnified to the
full amount of the insurance, the underwriters
were liable; because it was their own fault in
not taking up the bond tor the expensea of those
repalra, which had been incurred by their own
•xpreaa directions; and the only remaining
question was, bow the average waa to be cal-
culated. The jury found a verdict for the
owner for sixty-two pounds nineteen shillings,
which, together with seventeen pounds ten shil-
lings paid into court by the underwriters, they
calculated aa the avei-age loss, per cent., whicn
the owner was entitled to. A motion waa
afterwards made for a new trial, and refused
by the court, substantially upon the grounds
maintained by the learned judge at the triaL
From this statement of the facts, and the
reasoning of the court applicable thereto in the
ease of Da Costa v. Newnbam, it is apparent
that, in that ease, the actual coat of the repairs
(including of necessity the bottomry premium)
exceeded the actual value of the ship; that the
under writers had fully authorized all tbeae re-
pwrs, and had ex^reasly promised to pay alt the
GOata of the repairs and the necessary incidents.
The owner of the ship, at the termination of
the voyage, never came into the possesaton of
the ship free from the lien of the bottomry
bond; for the whole amount of which, as It in-
eluded nothing but the costs and incidents of
408*] the repairs, the underwriters 'were lia-
ble, and which, by necessary implication, they
had promised to pay. The sum claimed by the
owner of the underwriters was in tact less than
the amount of the cost of the repairs, that coat
being six hundred and seventy-eight pounds;
whereas the loss claimed was a total loss of the
ship, which sold for six hundred guineas only,
and it teems that the insurance was on an open
The queation, in effect, therefore, was whether
the owner was not entitled to recover the full
amount of the Insurance, which was the amount
of his actual loss directly arising from the
breach of the promise of indemnity made to
Um by the unaerwritera. Upon such a point,
there should not seem to be much reason for
any real juridical doubt.
Now, there are essential distinctions between
that case and the present. In the first place, the
repairs in this case were not made under any pos-
Itrre engagement of the underwriter! beyond
What the policy, by its own terms, necessarily In-
cluded. The language of the underwriters in
ttair auswera refusing the abandonment, in our
list
judgment imports no more than this. It mm*-
ly says, "we expect you to do what ia mirra
sary in the case for the safety and relief of tkt
vessel." It was rather an admonition than a
contract; a warning that the undenrriten
would hold the owners to the performance of
all the duties imposed upon Ihcm by taw, aid
not any promise as to their own obligatioiia. In
the next place, in the present case, the loss is to
be taken upon the very form of the instructim,
prayed to be a partial loss only; and aa to the
repairs, the underwriters were clearly. In such
a case, entitled to the deduction of one third
new for old. In the case of Da Costa t. Newn-
ham, the loss waa treated by the court as a
technical total loss, on account of the amoont
required for the necessary repaira. In the next
place, in that case, the insured asked only to
recover the amount of the costs of the repair*,
which in fact exceeded the value of the ahip;
in the present case, the cost of the repairs
and the salvage, for which the underwrit-
ers were Uable, fell short of the half Txloef
and yet the plaintiffs insist to recover for a to-
tal loss. In the next place. In that cuse, the
underwriters, by their refusal to make any ad-
vances, compelled, and indeed, authoriaed. the
owner to resort to a bottomry bond, to supfdy
the means of repairing the loss; and of coum,
aj has been already intimated, the underwriters,
by necessary implication, undertook to indem-
nify the owner against the lien and burden td
the whole of *tbat bond. In conaidera- [*40ff
tion of his undertaking to cause the repairs to
The refusal to make good that promise, wai
the direct and immediate cause of the losa and
sale of the ship. In the present case, tbe bot-
tomry bond Included charges and amounts for
which the underwriters were not liable. How.
then, can It be Inferred from tbe facta stated in
the instnictlons, that the underwriters, by ■■■
plication, and without consideration, underto<A
to Indemnify the plaintiffs against the whole
bottomry bond, for the payment of a, part of
which only, they were by law responsible T
So that, admitting the authority of Da Costa
V. Newnham to the fullest extent which its own
itirely distinguishable from those which ottght
I govern the present case. If the underwrit-
ers, in the present case, had authorited the
whole expenditures on their sole account, and
had promised to save the plaintiffs hannlesa
from the whale amount of the bottomry bond,
and the plaintiffs had made the expenditnra
and procured tbe advances for this purpoa*
upon tbe faith of such authority and promiat,
a very different case would have been preaented
for OUT consideration. At present. It is only
necessary to say that the instruction before as
states no inch case, and calls for no such inies-
tion; and, therefore, Da Costa ▼. Newnhan
cannot be admitted to goTsra the present eass.
Upon the whole, our opinion la that tken i>
no error in the instructions given or refused by
the Circuit Oourt, and the judgment ia therefore
affirmed with costs.
This cause came on to be heard on tbe tran-
script of the record from the Circuit Osnit e(
the United States for the District of Hai7taad.
and waa argued I7 eounseli on ctmslJsiiHw
»»
SiBOTMB T. LtNSUU
whenof, It U now hen ordered sod adjudged
bj tbii court that the Judgment at tba latd Cir-
euit Court in this «*usc be, and the Mme ia
bereb; afllmed, with coiti ejid dAiaagee »t the
nta of Bix per centum p«r anoum.
JOBN B. C. LUCAS, Defendant
Effect of judgnunt In ejectment— land titles in
dt; of St. Louis — Spanish law^onstructlon
of treaty ceding Louisiana.
„ „ a writ of »
I8SS. >ni] tb* lademeiit In [>Tor of tbe di^Cendan
was ■mniie<). (6 Meters. 163.) He atlenrard
broD^t looiheT ■ctton of ejectment tot tbe sam
tbe rient of eltber
oteny. tbe plalacld'
spptarlng In the record ;
e record. Id tbe b
arlH I
lar dutT, eajolned umd ua b; tbe oeture at tbe
:aae, tbe course of the able and lesrned srEumcDta
U to tbe lair of Spain and ber colonies. In Its beer-
Djr on tbe InterestlnK questloo berore us. tocether
vltb a Tie* of tbe eonsequence* ef our flnnl decl-
lion tbereon. Were we to lean anr qussUoDt un-
iMlded wbleb fairly arise ou tbe recoid, or to de-
Jde tbe cause on points of minor Inipoitanre onJj',
.b« value of the premlies would JustlC/ future lit)-
taHon, whicb no eoort of ''banivrj mlgbt tbink
iioper to enjoin ao long as new and initerlil facts
HMild be developed, or pertinent points of law r«-
Mitled.
Tbe Statgof Hissoorl w~
errltorr. Brst of France, i
to tbe United sinien bv [h
proprielj, soTerelEDty and dc
3ulrad and beld If o! Pel en
put Itself 1
nlnlou. as sbe bad
101. etc.). by wblc „ ,_. ..
ilaee of tbe former soTerelsns. end becai .^
-eated wltb all tbdr rlihts, subject to tbeir con
omttaut oblliatlODS to tLe InhablUnts. Untb werr
esulated by the law of nations, acrordln'! la wblrh
be rlfbts oT property are protected, eren In th«
aae of a conqaered country ; and beld sacred snd
QTinlnble wben It la ceded by treaty, wlfi or nltU
nt an; sttputallou to auch effect ; and the laws,
rhether In writing, or erldenced by tbe usage and
usioms of tbe conquered or ceded country, con.
Inoe In force nntit Hltered br tbe aew Hoterelgn.
Tbis court has slso uniformly beld that tbe term
Sant," In a treaty, con—-'----'- -- —■ -
Icb are made In form,
sttle. whether eTidrneed b
reaniEed Cram posnesslon ;
laws." Is Ineladed custom
•ttled: thoUKb It may be ,.
mt date, and Is not one of those
t whIcb the memory of man ruDi
>nlrn>utsd so maeb to make up the common
>de. wblcb Is so Jostly renerated."
No nrtnclpis can he t>etter eslshllsbed hv the
ll*r tborItT of tbta court than "that the •
{ an officer to whom a public doty la aailgneC
la klOK. within the sphere of that duty, arc pr
icle taken to he wltnln bis power." "Tbe n
pes on whieb It rests are Itelfered tn bs too J
alftbs
n of shon
t tbe oBlcer bas
action Is tainted wltb fraud."
Where tbe set at an otDcer to pas* the tltls to
land according to tbs Spanish law Is done contrary
to the written order of tbe klni, produced at tba
trial, without any explanation, It shall be presumed
Ibal tht power naa not been exceeded : that lbs
act was done on tbe motlres set out therein, and
according to some order known to the king and hla
scended bis p
dersUnd thf
i and coarta
e the eorerelgn. i
- ... J of tbe proper^
The king cedes only that which
— '1 be had previously granted,
Neither party could so nn-
Neltber party could con-
I attempting s wrong to IndlTldrials.
"■- -Thole clTlllted world. The cee-
' sbould oecesiarlly be under-
rred. i
I stipulallon I
than Its posltlT* words require. "Wltbouc It^ Ibe
title of Individuals would remain as valid under
(be new guvei'nnieot as they were under tba Old ;
■nd those tides, at least so (nr as tbey were con-
summste, might be averted In the courta of tbe
United States, Independently of this article."
The laws ol Spain aa to the disposition of th«
royal domain In Loulslaoa, while uulalana WM
held by Spain.
In the treaty of ceaslon of Louisiana uo eieep-
tlons were made, and this court bas declared thai
none can thereafter be made. 8 Peters, 4SS. The
United atstes must remain content with that
whIcb contented them st the iransfer wben tbey
assumed tbe precise position ot Ibe King of Spain.
The United States have so reoulned, as appears by
their laws. By the acts gf 1804, 1H06, 1807 and 1816
they recognised the laws, ussges. and customs nt
Spain to be legitimate sources of titles : and by tbe
Act of I8I2. conflrmed to tbe Inhabitants of 81.
Louis and other Tillages, according to Ibeir several
right or rigbti of common thereto, tbe righto, titles,
—J _i.i — ._ . — -lllage lots, out-lots, rom-
n fleld-lo
r ad-
blch titles depended on parol
fitendril to granla to actual settlers ponuant to
such settlers to obtain a gratit of lands actually
settled, or persons claiming title theii
■ttlen
! befor
the 30th December,
180».
Tbe unwritten law of Louisiana, before tbe o
slon of tbe territory to the United l^lates.
it purauant tc
• a law Is aa fully, to all Intents and purposes, i
apt as If II contained In terms a grsot dr novo
Tbe acts of tbe commissioners appointed to sA
Just end settle land titles In Louisiana, under
— ^ _. yi — ,1 — irtng and conllrmlng
:a alt titles to lands w
irding to the provisions of
tbe different acts of Congress on the subject.
It Is Inconsistent with all tbe acts of Congrets
which have organised lioards of commissioners tot
-" — '~~ land titles, the proceedings of the iMerd.
iws wblcb bavs conflrmed them, that tba
ons of tbe commlsslonen snail inure to
any other uses, or to aoy other person, than tbe
person or persons elalmlnir tbe conDrmatlon; It
would defeat ths whole object of theee laws, and
Introduce Indnlte publle mlaeblef. wen the eonrt
liat the cooflrmatlons by the ci
ODgress, mads expressly to _._
erlvatlvs titles, did not operat* to their
r to those who
SUPBXIU OOCIT OF THS Vmttkd Btatis.
IN error to the Nstrlct Court of the DniteJ
States tor the District of Miaaourl.
The counsel for the plaintiff in error szhib-
IteJ the following statement of the ease;
Daniel F. Strother, of Kentucky, against Jno
B. C Lucas, of UisBOuri, to recover a tract of
land particularly described in the declaration
as follows: 'Lying and being in the city an<'
County of St. Louis, State of Uisaourl, eon
taining two arpents la breadth, by fort; in
e northern of said two arpents, was
)y granted to one Gamache and his heirs; ani!
whHih said two arpcnta by forty are bounded
OD the north by a forty arpent lot, originally
granted to one Louis Bissonet; and on the
south by a forty arpent lot, originally granted
to one John Baptist« Bequette; and which said
two forty arpent lots, so above bounded havi
been confirmed by the authority of the Congress
of the United States to the legal rcpresentativp;
of the said Rene Kiersereau and Gamachi
rrspectively.' "
Term, 1835, when there was a rerdlct tor the-
defendant, and jud^ent rendered thereon;
to reverse which this writ of error is pros-
By the evidence, it appears that in 1764, the
post of St. Louis, in Upper Louisiana, was
first established by the French, under H.
413*] ■Laclede. In Msy, 1T70, the Span,
lards, under the treaty of 1T62, took posses-
sion of St. Louis and Upper Louisiana. Be.
tween the year 1764 and 1772, dlvere grants
of land in Upper Louisiana were made by the
Ti^vnch and Spanish authorities, respectively.
Amongst thoiiu grants were some forty or fifty,
contsining each from one arpent by forty to
four arpenta by forty, located in the prairie
Immediately west of the then village of St.
Louia, and extending some distance north and
south of it. These tots extend westward to the
uniform depth of forty arpents, being paral
lelograms whose opposite sides are on tht
north and south, forty arpents in length, and
on the east and west from one arpent to four
Sometime In the year 177! a survey waf
made, as above described, of these lots, by Mar-
tin Duralde, the authorlied surveyor of the
post of St. Louis.
About that time a fence was established
the eastern boundary of the above range
lots, which scparsted them from the village
anil what was called the commons; there was
no division fence, nor any fence on the western
boundary; the lots were contiguous to each
other, rat each lot was held separately, and
cultivated separately, by its proprietor or occu-
pant, who was bound by the regulations of the
poat to keep the fenre in front of hie lot (or of
wfaatcrer number of lots he occupied) In good
— ilr.
"¥£■
t aurvcya to msde by Duralde were
tared In a book called the Ltvre Terrein.
Amongst the lots so surveyed and entered
are the two toU In quaatlon, deaarilwd and
IISS
>>nunded as in the declaration In this s—a
The snneys so entered, and the grants by vir-
tns of which said surveys were made, wen
•olemnly reeogniced and affirmed br the Spaa-
iah lieutenant -Qovemor, Don Pedro Renua^
and bf his predecessor, the French commaod-
kiit, Angle da Bclleitve.
The en^ In the Uvre Terrein (No. 2, p. N)
which contains this reeo^ition of said ftaata
and surveys, haa been pnnted by authorUy of
Congress, and is to be found in Gale tt S(«t-
>n's American State Pspera, Vol. 3, p. 677. In
the entry in the Livre Terrein of the surrey of
lamache's arpent, the grantee is called *Jo-
<eph" Gamacne. This was a mistake, as ia
shown fully by the evidence in the ctiuse- It
la conclusivcty provnl that the name of G«-
maobe, the grantee, was John Baptistc Ga-
mache, and that no such man as "Joseph"
Qamache existed at that time in U[f>er Lm-
The defendant admits upon th« [*414
record that the grantee, Gamache, wao known
as well by the name of John Baptiste Gamache
and of Baptiste Gamache, as Joseph GamacW;
but the fact, as proved in evidence, ia that
his name was Jobn Baptiste Gamadie, mat
Immediately after the grant ao ntade t*
Kiersereau and Gamache, they took poascasiaa
of their respective lots, and commenced the
cultivation thereof, as acknowledged ownen
and proprietors, by virtue of said grants and
surveys. John Baptiste Gamache continosd
to occupy and cultivate until about Januaiy,
1773, when Louis Chaucellier took poeaeawoa;
and Rene Kiersereau until about the year ITS^
when the said Louis Chancel lier suoccedsd
him in the occupation and cultiratian tl
his lot. Louis Chancellier continued in poa-
sesslon and cultivation of both these Iota,
claiming the same as proprietor thereof hf
lurchase front the original grantees, ontil
lis death, in April, 1785. IVevioua to his
death, on his marriage with Msrie Louise De-
champ, a marriage contract was executed be-
tween him and said Marie Louise, by whiA a
communaute (partnership) according to the
Spanish law, was enacted between them.
On the death of her husband, tbe said
Louis Chancellier, the widow, by virtue ct
her rights under the communaute, wan in law-
ful possession of the common property of brr-
self and husband, and, consequently, of th«
two arpents by forty in question, tin the tth
June, 1788, an appraised inventory "of all tW
property, movable and immovable, which is
ascertained to belong to the said deceased (Looia
Chancellier] and to his wife. Dona Louise De-
champ," was made in due form of law, by tto
Lieutenant-Governor, Don Francieco Crusat.
In this inventory, the two arpents in qats-
tion are described by their metes and boimdai
that is to say, "two arpents and a half of Isal
in the prairie, hounded on the one aide by lanl
of Bequette, on the other by land of Ur. Bijen.*
The names of Bijou, or Louis Bissonet, are mt
mitted and proved to mean the hubo tm§^
On the Ilth June, 17SS, a petition waa pie-
sented to the lieutenant. governor by eald wit-
ow and Charles Tayon, the guardiaB if lk>
property oi the infant son of sala Looia Ctiwd
PcMn It-
ISM
Har knd Hari« LonlM, pnyins that said property
'Ha th^r poueMion," should be aold at public
aale; and on the aame day, in pursuance of
taid petition, an order of sale was made; and
on the day fallowing, to wit, the 1 2th
41ft*] 'June, 17S6, the Lieutenant -Governor,
Cru7At, proceeded to tell tbe property de-
•eribed in the inventory, and did actually sell
K considerable quantity thereof; and amongat
other property, the two arpenti described as
above, were sold and adjudicated to the uid
Marie Louise Chancellier, (or the sum of one
hundred and fifty-five livres.
At the BBine sale, on the same day, wsa also
sold the slave FEdrl, belonging to said estate
and descriled in the inventory, to one Hya-
cinth St. Cyr, whose security for the pay-
ment of the purchase money (two thousand one
hundred livres) was August Chouteau, the
former signing by his mark in the margin of
tbe sale, the latter signing his name in full
thereon. The llrst article sold was said ^del,
and the sixth was the two arpents in question.
The sale is declared to have been made at the
dwelling of said widow, "in whose posseBsion
are all said goods" (bienes fn Spanish, which
means "property" generally). Afterwards, by
order of the 14th June, 1785, the sate waa sus-
pended for want of competent purchasers, and
the balance unsold ordered to be delivered to
the widow at the valua.tian, on condition that
ahe be charged with the same on final partition
between her and her eon.
On the 8th June, 1786, on petition by the
aaid widow and guardian, a partition was or-
dered to be made between the widow and said
Infant; and accordingly an account and partition
was made, whereby it appears that said widow
was charged with the sum of one hundred and
■fty-five livres, being tbe price of said two ar-
pents by forty, hy her purchase at the sale of
her husband's property. It appears that the
balance coming to the minor, amounting to six
thousand three hundred and thirty-four livres,
•even sous, six dcniers, was duly paid over to
fats guardian, snid Chsrles Tayon, and theaum
of three thout^and dollars (IncludinB; said lots,
TAlued at one hundred and fifty-flve livres) duly
paid to said widow.
This final Eetltement and partition was made
Don Estaban Miro, bearing date 26th Febru-
ary, 1787, all which is set out at large upon the
Thus It appears that in pursuance of a final
decree made by the supreme authority in Loui-
Biana, the widow of Louis Chancellier was de-
clared and Bdjud);ed to be the lawful owner
and possCHHor of the said two arp^nta, bounded
MM described in the declaration in this cause;
»nd that the judgmei^t of partition and final
416*] settlement so made, In 'favor of said
Marie Louise Chancellier, bean date the 13th
day of September, 1787.
In addition to the above proof of the title of
Marie Louise Cbanrellier to said two lots, the
plaintiff gave in evidence —
1st. An authentic deed of exchange between
Jno. B. Gamarhe and laid Louis Chancellier,
bearing date 23d January, 17T3, acknowledged
and executed in presence ot Don Pedro Piernaa,
lieutenant -GoTcntor ttt Upper Louisiana;
whereby said Jno. B. Oamaebe, aa original
grantee of s^d one by forty arpents, eonveya
the northern half thereof to said Louis Chan-
cellier, In exchange.
2d. An authentic deed, dated Bth April,
1T81, acknowledged in presence of Francisco
Cruiat, Ueu tenant -Governor of Upper Louisi-
ana, whereby Marie Magdalene Roblllan) con-
veying to said Louis Cbancetlfer, one arpent by
forty, bounded by Jno. B. Bequette, and by Jno.
H. Gamache's arpent, being the same granted
to Bene Kiersereau. In this deed la signed
the name of Bene Riersereau, as "assisting
witness," and his name also as a party witness,
is mentioned in tbe body of the deed.
It is in evidence that no other man than the
grantee existed in Upper Louisiana of the name
of Rene Kiersereau, and that Marie Magdalene
Robtllard waa the wife of said Bene. Brides
this, the signature of said Rene Kiersereau to
this deed is duly proved; as is also that of the
lieutenant-governor to this deed, and also to
that of Jno. B. Gamnche. It ia fully proved
that said Rene Kiersereau ceased to occupy or
cultivate his lot from the year 1780, and that
Louis Chancellier immediately succeeded him
in the possession and cultivation thereof; and,
as above stated, remained in possession till his
death, in April, 1785.
In September, 178S, the widow of Louis
Chancellier intermarried with one .Toaeph Beau-
champ, and removed to Bt. Charles, about
twenty miles from St. Louis, on the left bank
of the Missouri Biver.
Some time after the removal of said Beau-
champ and wife to St. Charles (about 1790),
Hyacinth St. Cyr, the same who purchased the
slave Fidel at tbe sale of Louis C^ancellier's
property, entered upon the two arpents in ques-
tion, and commenced the cultivation of the same
by permission of said Marie Louise; which per-
mission, according to the testimony of said
Marie Louise, was given by her said second
husband, Joseph Beauehamp; and according to
the testimony of Madame St. Cyr, the widow
of said Hyacinth St. Cyr, the 'ayndlc ['417
authorised said St. Cyr to occupy and cultivate,
and that afterwards her husband had his deeds
from Kiersereau and Gamache, aa her husband
told her.
In I7BT or 1798, the eastern and only fence
of those forty arpent lots fell down, and they
again became a wildemesg, unoccupied and un-
cultivated by anybody, until sometime in the
year 1808, when the defendant took possession
of them, and inclosed a part of the eaatem end
thereof, under a deed of conveyance from Au-
gustus Choteau, the same who signed as aecu-
rity for St. Cyr, on the margin of the record
of sale of Chancelller's propsrty, aa before
stated.
In IBIS, under the Act of Congress of ISIE,
the above two lota were confirmed to the legal
repreaentativea of the original grantees; and in
said eanflrmation, the recorder makes special
reference to Uvre Terreio, No. B, pages II and
12, in which the surveys in favor of Kiersereau
and Gamache are recorded.
The plaintiff then gave in evidence a deed of
conveyance from Augnstn* Gamache, the aur-
4ir
wivoT of tbe tiro MMs ftDd heirs of John B.
Uamache, of hia eiUtc, whatever it might b«,
bi said one b; forty arpenti granted to nia fa-
ther. Jolin B. Gamache, to Basil Laroque and
ilarie Louise Laroque bii wife. Basil Laroque
WM the tliird buBband of Mid Marie Louise,
tha widow of Louis Chancellier. The plaintiff
then gave in evidence deeds of conveyance duly
aelcnowledged from said Basil L«roque and
Marie txiuise, of the aaid two by forty arpents
to Qeorge F. Strother, and a deed from said
Btrother to piaintiff.
Here the plaintiff closed his e»se, and the de-
fendant then gave in evidence —
1st. Two deeds, bearing date same day, the
23d October, 17S3, the one purporting to be a
conveyance by said Rene Kiersereau to said
Hyacinth St. Cyr, of the one by forty arpents
granted to said Bene Kiersereau; the other
purporting to be a deed from "Joseph" Ga-
mache, of the one by forty arpents granted to
Qamaehe, and which deed ia signed Batis X
Gamache.
In both those deeds it is recited that for ser-
era! years previous to their date said St. Cyr
had been in poseessian, and was then in poisei-
•ion of the lots in question .
The defendant then gave in evidence certain
418*] proceedings dated *in 1801, in the mat-
ter of Hyacinth St. Cyr, a bankrupt; by which
it appears that amongst the property sold by
the syndic on that occasion, "two arpents of
land in the first prairie of St. Louis, near the
tower, by forty arpents in depth, bounded on
the one side by the widow Bisaonet, and on the
other by Mr. Hortiz," were adjudicated to Hr.
Augusts Chotrau for twelve dollars.
The defendant then gave in evidence extracts
from the proceedings of the board of commis-
sioners, of which board said defendant was a
member, purporting to be a confirmation of
•aid two arpents by forty to Auguste Choleau,
as assignee of Hyacinth St. Cyr, assignee of
said original grantees.
He also gave in evidence a deed, dated 11th
January, 18(19. from said Auguste Choteau and
wife to said defendant, purporting to convey,
In fee, to ssid defendant, said two arpents by
forty; "of which forty arpents have originally
been ceded to Rene Kiersereau, and the other
forty arpents have been originally ceded to Jo-
seph Gamache, the whole bounded by a tract
of land originally conceded to John B. Bequette,
and by another tract originally conceded to
Louis Biasonet; the nhole belonging to us (the
aaid Choteau and wife) as having become the
purchasers of it at the public aale of the prop-
erty of Mr. Hyacinth St. Cyr."
The defendant then read to the jury certain
extracts from the proceedinga of the board of
commissioners, of which he was a member, by
which it appeared that the said board met at
St. Charles, on the 3d of August, 1807, and
held their aessioo Ihero until the Bth of the
same month and year.
The defendant lastly read In eridenre an ex-
tract from the record of the judgment in an ac-
tion of ejectment for said lots in the District
Court of the United States, in which the said
Daniel F. Strotiier waa plaintiff, and said John
B. Lucas was defendant, and there closed hia
caae in defense.
Eis Umnn Siatis. UM
from the raeordi «f the board of eommiariaMR
that the defendant was a member of the board
before which Auguste Choteau filed hia daJB
aa assignee of St. Cyr, assignee of the oripaal
grantees; and that while said claim waa pend-
ing, and Iwfore any action of the board waa had
upon it, Lucas being still a member of the boaid,
took the deed of conveyance aforesaid, of tha
nth January, 1S08, from aaid Auguste Clioteau.
It is admitted on the record that the plaintifl
is a citiEon of Kentucky, 'and that the (*41t
premiaea in dispute are worth more tliao two
thousand dollara.
The case being closed on each side the plain-
tiff then moved the court to instruct the jury
as follows:
1. That there Is evidence before the jury «f
the possession and title of Bene KiersereSia and
John B. Gamache, aa absolute owners Knd pro-
prietors of the two forty arpeota lots dt«crib«d
in the declaration.
2. That there is evidence before the jury at
the possession and title of Louis Chancellier, aa
owner and proprietor of the two forty arpents
lots in question, aa assignee of said Bene Kier-
sereau and said John B. Gamache, r«8pe«tivcly.
3. That there is evidence of the actual pos-
session after the death of said Louis Chanrel-
lier by his widow, said Marie Louise, of said
two forty arpents lota, claiming the same as ab-
solute owner thereof.
4. That the plaintiff has esUblished hU titk
as osaignee of Marie Louise Chancellier, to the
estate and interest vested in her and ber beir*,
in and to the two forty arpents in question.
5. That the deed given in evidence bv plaia-
tiff from Auguste Gamache to Baiil Laroqat
and Uarie Louise his wife, inures to the bcns£t
of the plaintiff.
S. That if the jury shall be of opinion fro*
the evidence that Hynrinth St, Cyr orijpnallj
obtained possession of the lots in ()uestioa aa
tenant of Marie Louise, the widow of Looia
Chancellier, or by virtue of a permission te oc-
cupy and cultivate, given to said St. Cyr b*
the syndic of the village of St. Louis; and pos-
session of St. Cyr, so obtained. Blutll be tab^
by the jury aa, in law, the possession of aaiJ
Marie Louise.
7. That the confirmations of tho board «l
commissioners on the Z3d .luly, ISIO. of wUd
the defendant was a member, could, at moat,
only operate as a quitclaim by the United Sister
in favor of the original grnntees, and could atf
decide the question of derivative title, nadir
said original grantees.
8. That the mere fact of the land deaeriM
in the confirmation to Chot<<au, and the laad
described in the confirmation pivcn in «»i-
dence by the plaintitT. and the declaration fet-
ing identical, noes not entitle the defendaot li
a verdict In liis favor.
S. That no forfeiture or disqonli8c«tioa 1«
accrued agninst Madame Marie Louise, tic
widow of Louise Chancellier, or agtiinat ber *-
signs, under any act of Congress, whereby rti
or they are barveil 'from asserting [•4M
their Irgsl and equiluble rights to the Iota k
question before this court.
Which instructions were ^t'en by the eeait
The plaiutilT bIho moved that tha follo«ia|
instructions be given to the jury:
L That the sole, and partition, a»l flaal i»-
BnoTBD T. Lirau.
CTce, of which duly eertlflcd «»!«" I>'ve been
fiven in evidence by th« plaintiD, eBtkblish the
itio of the widow of Louis Chancetlier, Msitume
Uarie Louise Ues Champa »nd her heirs, to the
1a.nd deacribetl in said lale and partition, u
sold and allotted to her, part of which said
land consiste of tlie two arpt^nts bv forty in the
deularalion described, bounded by Bi'
the one aide, and by Jobn B. Bequette
Z. That Independently of the title of Rene
Kiersereau and Jobn B. Gamache, there would
he auf&dent evidence before the jury to eatab-
lish • title by prescription in Louis Chancellier
and his heirs, and Marie Louise, his widow and
her heirs, to the two forty arpentt described
the declaration.
3, That Hyacinth St. Cyr took no title 1
prescription in and to said lots.
4. Tliat if the jury shall be of opinion that
Hyacinth St. Cyr had notice of the sate of said
lots to Marie Louise by the proper Spanish au
tbority. as given in evidence by the plaintift;
the possession of said Hyacinth St. Qn' of said
«rpentB was not such as could be adverse to
aaid Marie Louise, or could create an estate by
prescription in favor of said St. Cyr.
6. That if the jury shall be of opinion from
the evidence that St. Cyr waa a purchaser at
the public sale of the property of Louis Chan-
cellier, or signed his name, or made his mark
•s purchaser on the margin of said sale, these
facts are prima facie evidence that said St. Cyr
bad notice of the title of said Marie Louise ai
purchaser at said sale of the lots therein da-
■cribed, as sold to her.
6th. That the deeds eiven in erldenee by the
defendant from Bene Kiersereau, bearing date
the 23d of October, 1703, conveyed nothing to
St. Cyr, being made by a person out of posses-
sion, and whose conveyance for the same land
by another person to Chancellier was upon
i^cord, and who, therefore, waa guilty of the
crime of Estelionato, punishable by line and
banishment, by the Spanish law then in force.
7th. That the deed given In evidence by
defendant from Joseph Camache to Hyacinth
St. CjT, dated 23d October, 17D3, is void, on
421*] *tbe ground of Estelionato In Batis
Gamache, supposing that he made the deed:
Ed, on tbe ground of uncertainty in the deed
itself. In this, that it purports to be a deed of
Joaeph Gamache, and ia signed Batia X Gs-
Stb. That Auguate Choteau took no estate by
K«8criptiott in either of laid forty arpent lota
question.
9th. That there fa no evidence of possession
whatever, adverse or otherwise, by Auguate
Choteau, of aaid two forty arpents lots, or of
t thereof.
I. That If the jury ahall be of opinion
from the evidence before them that the said
Auguate Chateau had notice of the public Bale
of eaid lota to Madame Marie Louise Chancel-
lier, hU possession or claim to add lots under
Hyacinth St. Cyr Is fraudulent and void, aa
aigafnat said Marie Louise and her heira and
aaaigna.
ilth. That the ccrtlfled copy of the proceed-
ln,3B and sale by the syndic in the matter of
Hyacinth St. Cyr, a bankrupt, is not evidence
•Ither of St. Cyr-a title to alther of the lota In
• Ii. ed.
'"{offl
queatlon, or that the same were aold by said
syndic to said Auguate Choteau, as part of said
St. Cyr's property.
12th. That tbe defendant has shown no title
by prescription under the Spanish or civil law,
or by the statutes of limitation (in bar of plain-
tiff), under the Anglo. American laws, to the
lols in question.
13th. That the title of the defendant, aa aa-
algnee of Augusts Choteau, is vitiated bj tha
fraud which vitiates the title of Choteau and
of St, Qyr.
14th. That tha deed from Auguate Chotean
and wife to Lucas, of tbe h>ts In qnestion,
dated Ilth January, 1808, la void for fraud; if
in the opinion of the jury it waa a aala and
conveyance to Lucas of a claim and interest
pending before said Lucaa himself tor adjudi>
Ifith. That if, in the opinion of the jury, the
claim was pending before Lucas as commis-
sioner when he bought it, the adjudication or
conflrmation of It on the 23d July, IBIO, by the
board of commissioners, of which Lucaa waa
a member, ia fraudulent and void at law and
in equity.
letb. That neither the atatute of ItmlUtioa
nor the Spanish law of preacription can avail
the defendant, Lucas, independently ot tha
possession of St. Cyr and Choteau.
nth. That the orden of surrey given in evi-
dence by the defendant, and made by himself
and his two colleagues In favor of Auguate
Choteau, bearing date June 10, 1811, waa
fraudulent and 'void; if the jury shall ['423
be of opinion from the evidence that the claims
therein ordered to be surveyed, had been Bold
to aaid defendant by said Choteau previous to
the date of aaid order, and while said claima
pending for adjudication before aaid de-
fendant, as a member of the board of commla-
sners, in said order mentioned.
18th. That if any penal effect resulted from
any act of Congress to Had. Chancellier and
her assigns, or to the legal representatives of
Rene Kiersereau and J. B. Gamache, the Act
of Congress of January, 1831, entitled "An
Act further supplemental to the act entitled an
act making further provisiona for settling the
landa in the territory of Hiasouri,"
passed the thirteenth day of June, one thou-
sand aJght hundred and twelve, remits the par-
ties to their ori ' "
and titles, aa i
been in force.
ISth. That upon the ease made by plaintiff
he is entitled to a verdict for all that part of
the two forty arpents lota In question, situated
west of Seventh Street, In St. Louis, and all
the lota east of Seventh Street, according to
the admissiona of defendant aa above.
80th. That In this case there is no law or
binding ordinance of the Spanish government
by which Madame Chancellier and thorn claim-
ing under her could be deprived, Mcording to
the state of tbe evidence in this ease, of what-
ever title she acquired to tbe land In queetlon.
21st. That if the jury believe from the evi-
dence that St. C7r eeased to eitltivat« and bt
in actual poaaeaaion of the premisea in tUspuie
' 1797 or 170S, prescription eeaaed to nib
1141
4tl
BuntK* OoniT nf thk Uihted Btintt.
in hi* fiivor, *nd tbat of tboM who eUlm im-
der him from that time.
Which iiutructiona the court refuted to give,
but initrudted the jury in relation to the mat-
ten referred to in the firBt instruction above
refused, "that the >k]e, ftnd partitioD, and Sital
decree, the record of which certified copies
have been given in evidence bj the plaintiff,
did pass the title of Louis Chaneellier, men-
UonM in Miid proceedings of tale, inch ai it
WM at the time of hi* dfath, or sucli as it was
In his heirs at the time of said sale to Madame
Marie Louise, bis widow, mentioned in «a.id
prooeedinga, and her heirs to the lands de-
scribed in said record ot aale and partition, aa
•old and allottod to her."
And further instructed the jur?, in relation
to the matters mentioned in the fifth instruc-
tion above refused, "that if the jury should
421*] *be of opinion that St. Ojt, under
whom the defendant claims, was a purchaser
at said public sale of the property of said Louts
Chancellier, or did sign his name or make his
marlc on the margin of the record of said sale,
these facts, or either of them, is evidence proper
for them to consider In ascertaining whether
said St. Cji had notice of the said title of said
Hciia Louise as purchaser at the said sale of
the lots described in th« record thereof aa sold
And further Instructed the iur7 in relation
to the matters referred to in the eleventh in-
struction above refused, "that the certified
eop]r of the proceedings and sale b^ the syndic
of the property and estate of St. Cyr as a bank-
rupt, was not evidence of a title to said St.
C]^ to the lote in question, or either of them."
And further instructed the jury in relation
to the matters referred to in the twelfth instruc-
tion above refused, and to the statutes of
limitation referred to In that refused instruc-
tion, "that the defendant had shown no title
to the lots in question, nor any bar to the
plaintifTa recovery under uiy statute orstat.
ntei of limitation."
And further instructed the jury in relation to
the matters referred to in the sixteenth instruc-
tion above refused, "that the Ht«.tute of limita-
tions could not avail the defendant Lucas,
either with or independent of the possession of
St. Cyr."
And further iostnicted the jury in relation
to the matters referred to in tha eighteenth in-
struction above refused, "that although the
Act of Confess of the 3Ist ot January, 1831,
referred to in said refused instruction last men-
tioned, does not remit the penalties as in that
refused instruction is supposed by the plaintiffj
yet, that in fact no penal effect results from
any act of Conf^ess wnicb bars or stands in the
evidence of title, under, or to be derived from
■aid acts, or any of them, under the admissions
of the parties in the present case."
The counsel for the plaintiff excepted to the
opinion of the court In refusing to give the
several Instructions, aa well as to the opinion
of the court in giving the instmctions which
they did dve.
'nie defendant then moved the court to in-
■tmct tbe Jury as follows:
Ist. That if the jury And from the eridence
ai4s
claiming under him, have possessed thm tw*
arpents by forty, surveyed for Ganiaeha aad
KJersereau, without interruption, *and [*4I4
with claim of title for thirty yean, oonaeeo-
tively, prior to 1S18, the plaintiff is not entitle!
to recover in this action.
2d. If the Jury find from the evidence tkat
Hyacinth St. Cyr and those hi w fully '•'■'"■♦ng
under him, possessed tbe two lots in tfaa
declantion mentioned for ten yean, eonsacn-
tively, prior to and until tbe 83d day of Jidj,
IBIO; and thet tbe lands confirmed to Augnda
Choteau on that day ate the same Isolds In tha
declaration mentioned, tha plaintiff cannot la-
cover in this action.
3d, If the Jury find from the evidence Hal
the defendant possessed the lots of l*nd in tbs
declaration mentioned for ten years, consecu-
tively, prior to the lat of October, 1B18, tb
plaintiff cannot recover in this action.
Which instmctions the court gave to tks
jury, with the further instruction: "Th>t tht
possession mentioned must be an open ui
notorious possession, and that if they abooU
find such possession, It gave title VDder
and according to the Spanish or civil law, wU^
was in force in Upper LouJiiana at tlw data
of the treaty by which Louisiana was acqoirad
by the United States, and remained in foee
and unabrogated by any law of the district tt
Louisiana or of Missouri down to a period aa
late as October, IBla. That the possession rf
ten or thirty years would pve a title, the ona
period or the oth^r, according to tbe ciiisim-
stances under which the possession waa ob-
tained. That the ten yeara' possession which
would pve a prescriptive title, must be m. poa-
session under a purchsse made in good faith;
where the owner of tbe title preBCTilwd
against resided in the same country diiTi/ts the
said ten years. That if the jury believe ina
the evidence that the possession of St, Cyr,
under whom the drfendant claims, was obtained
der a purchase made by him in good faith,
and under tlie belief that the person of when
he purchased had a good title; and that tbe
possession of Choteau, under whom the defend-
ant claims, was obtained in like manner, aai
under a purchase m.idc with the tike beliafi
and that they had the possession mentioned in
the second instruction asked for on the part of
the defendant; and that the said Marie Lonte
in the country during the said ten yeai^
the plaintiff cannot recover in this )u;tioa.'*
And further instructed the jury in relatioa
I the possession mentioned in the third in-
struction asked for on the part of tha defeod-
, "that to mske the possession there Men-
tioned a bar to the plaintiff's 'recovery [*4»
the present action, tbe possession of the de-
fendant must have been obtained under a
purchase, where be believed that the persoa of
whom he purchased bad a good title; and that
le said Marie Louise was in the country dnr-
ig the said ten years, which, unless the Jury
sTteve, they cannot And for the defendant ^
1 such possession."
To which opinion the plaintiff «xcepted-
Afterwards tbe jud^, of his own BOti^
further Inatrueted Uia jury a* follows:
SnoTsn *. LuoAs.
That the potMiaira which the uid Louie
ChuiMlIier bad at the time of hii death paued
to hia heirs, and afterwards to his widow, the
said Marie Louise, under the purchase made
by her at the ssJd public sale of the estate
the
to continue to her and her heii
J the said Louis, and that the
thB said Marie Louise would be presumed
ntil an ad-
vene possession was shown, and would con-
tinuB m her, her heirs or assigns, until an
advene posaession was actually taken.
And further instructed the jury, that it they
•hould And from the evidence that laid St. Cyr
tooli possession, or was in possession of the
lands in controversy, or any of them, under
the said Marie Louise, or as her tenant, his
possession, so tali en or held, would be the pos-
aession of the eaid Marie Louise, and would not
be a posiessjou in St. Cyr, available by him or
those claiming under him, under the law of
prescription mentioned. But, that if the jury
should be of opinion that said St. Cyr came to
Um possession of the land in controversy, not
aa tae tenant of the said Marie Louise, or under
ber, but under a claim and title adverse to her,
•uch adverse claim and possession would con-
•titute a possession upon which a prescription,
by the Spanish or civil law referred to, and
tben in force, would begin to run in favor of
him and those claiming under him, If such pos-
session was actual, open, and notorious; and
that such possession, so commenced, would
constitute and preserve to said St. Cyr, his
heirs or assigns, a possession, available under
the law of prescription referred to, not with-
standing said St. Cyr, or those deriving title
from bim, should leave the actual possession,
or cease to occupy and cultivate, if that
abandonment of the actual possession, occu-
pancy, or cultivation, was with the intention
to return, and without any mental abandon-
ment of the possession.
And further instructed the Jury that if they
should be of opinion from the evidence that
Bens Kiersereau, under whom the parties
4SI*] 'claim, did attest the sale of the lot in
controversy, which both parties, in the present
case, claim under him, alleged to be made by
Marie Reno Robitlia to said Louis Chancellier.
by becoming a subscribing witness to the In-
■tniment of sale in evidence on behalf of the
SUintiff, and pur]>orting to be signed by said
[arie Reno RobilUa, and that said Kene Kier-
sereau, at the time of becoming such subsorib-
fog witness, was the husband of said Marie
Raio, the title of said Rene Kiersereau would,
from his presumed assent to said sale, and pre-
sumed receipt of the consideration expressed in
said instrument, as the husband of said Marie
RoDO, in presumption of taw, pass by said sale
to Louis Chancel I ier. That the subscribing
witnesses to a sale in writing, made before a
notary or other officer acting aa such, are pre-
mmea to have been iotormed of the contents
of the written Instrument of sale, because, by
Um civil or Spanish law referred to, which was
in force in Louisiana, It was the duty of the
notary or other officer to make luiown to the
1. — The nporter bss been aost kindly famlsbed
wltli tlu SHuments ol Hassra. lawless and Benton,
the coDDseifor the plaintiff, which has been pro-
■and br Mr. Lawless witli treat ablllt? and l»m-
wc- It was his wlab and Intantles to lasart It In
witness, aa well aa to tlie puties, the content*
of the writing which they attested and sub-
scribed. But that the jury would consider,
from the evidence, and the circumstances in
evidence in this case, whether the said Ftene,
being the husband of the said Marie Reno, did
become the subscribing witness to said instru-
ment. And if they should be of opinion that
he did not, or that the same is fraudulent, as
Xinst him, his title was not passed by tha
ged sale. That if the jury find that the title
of said Rene Kiersereau did pass by said sale
to said Louis Chancellier, and that the land so
acquired by him, and also the land derived by
the plaintiff under said Ganische, are the said
lands mentioned in the declaration, they will
find a verdict for the plaintiff for those lands,
or so much thereof as are described in the
declaration, unless they End that tlie title has
been tost by him, or those under whom he
claims by prescription, according to the princi-
ples already stated by the court.
And further instructed the Jury that if they
should find from the evidence that the residue
of the land mentioned in the declaration, or
any part thereof, was in the possession of Louis
Chancellier at the time of his death, and that
he and tliose claiming under him had such
possession for thirty years, consecutively, they
would find for the plaintiff, for such residue,ao
possessed; unless they should find that hia
right, ao acquired, had been lost by prescrip-
tion, under an adverse possession, according to
the principles already stated.
•The case was argued by Mr. Lawless {*4n
and Mr. Benton for the plaintiff in error, and
by Mr. Geyer and Mr. Jones for the defendant.*
In support of the assignment of errors in
this case, the pluintilfa counsel contended —
1. That the lots in question constituted a
property in the grantees thereof, and their
heirs or assigns; which was protected and
guaranteed by the treaty of cession of Louisi-
ana by France to the United States.
2. That at the date of the treaty of cession
of Louisiana by France to the United States,
the lots in question were vested, by title of the
highest order, in Marie Louise, the widow of
Louis Chancellier, who died in April, 1TS6.
3. That the original grant of said tots, re-
spectively, has not only been vested by title of
tne highest order in Marie Louise, as far as
said title could be given by the supreme power
in Louisiana while a province of Spain, but has
since been confirmed by the government of the
United States to said original grantees and
their legal rtpresentatives.
i. That at the date of said confirmation bf
the United States, the eaid Marie Louise, the
widow of Louis Chancellier, was the true as-
signee and legal representative of the aaid
original grantees.
e. That the title of said Marie Louise and of
said original grantees ia now fully vested in
the plaintiff.
8. That the title of the plaint! fi^, as assignee
of Marie Louise, the widow of Louis Chancel-
lier, to the lota in question, has been fully made
the report at the ease, snd be rentved tbe aron-
ment for tbe dctendant In time. Tbt srfiiiiDent for
the plalntllT will be toand tn tbe Aptwndli ; wbel«
427
BnnKMt OooBT or tst United Staii
ItSt
•ut and esUbllahed by the •ridenee In tbia
CiiUie; and has not been invalidated or rebutted
by the defendant, either by showing a bctl.i
title under the original granteeB, or by showing
a title in him by prescription, or limitation, or
forfeiture, or escheat, or by eatabliahing any
other title adverse to that of plaintlS.
Mr. Justice Baldwin dalivered the opinion
of the court:
The plaintiff brought an ejectment in the
488*J District Court of Missouri, *to recover
poaieasion of two pieces or tracts of land, for-
merly common-field lots adjacent to the village,
and now part of the city of St. Louis; a ver-
dict and judgment was rendered for the defend'
ant, on which the plaintiff brought his writ of
error. The whole merite of the case have been
brought before us, by the whole evidence given
at the trial, and forty-tbree instructions asked,
refused, Or given, spread out in the record;
which present a case of great interest, aa welt
in reference to the value of the property ir
controversy, as the principles which are neces-
sarily Involved in its decision.
Both parties claim under Rene Kiersereau,
and John B. Gamache; each of whom were in
possession of one of these lots, at a very early
period after the founding of the village of St.
Louis in 1764, while Louisinna was under the
dominion of France, though she had ceded it
to Spain two years before by the secret Treaty
of Fonts incbleau. Spain took possession of
the province in 176^1770, from which time
•he held it till she ceded it to France in 1800;
the laws of Spain were established in it, but
the title of tfaose who had received grants from
the local authorities, or made settlements,
either in the villages or on the public domain,
before the actual surrender of the province by
France, were respected. Accord infrly, it ap-
pears that in 1772 the following instrument
was executed between the French and Spanish
governors, which is found in the 3d vol. Am.
State Papers — Public Lands, and is of the tenor
and purport following:
"Translation of a French document marked
'C published in the third volume of the Ameri-
can State Papers— Public Lands, p. 670, truly
and faithfully made and written by me, Robert
Greenhow, translator of foreign languagca in
the Department of State of the United States.
— Waahington, February 28, 183B.
"Cadastre' formed by me, Martin Duralde,
surveyor, appointed by Mons. Don Pedro Pier-
nas. Captain of Infantry, and Li eu ten ant -Gov -
emor of the establishments and other depend-
encies of the Spanish government of the Illi-
nois, and deposited in the archives of the said
government in form of proces- verbal, to serve
to designnte the various tracts of land granted
in the name of the king to the inhabitants of
this post of St. Louis; as well by title or
[deed] as by verbal consent by the chiefs who
have governed them from the foundation [of
4 30*] "the government] to this moment,
which I have surveyed; and which after the
1. — Note by the translator. — A calTantre Is an of-
fldal statemeDt of tlis quantltir and value of real
property In anj district, made tor the purpose of
Jus [I J apportioning tba taies parable on such
proper^. — H. O.
2. — Not* hr tba translator. — Tba Fresefa word
exchanges, eesaioni or aalei, wMcb may hiie
been made of them, for the convenience or
advantage of each perton, are actually in the
possession of the persons hereinafter named,
agreeably to their own attestiitiona and reeipro-
cal acknowledgments, situated in the prairies
contiguous to this same post, in the order tad
according to the directions detailed ma toUowi:
"I thus attest it by my signature, and by tke
unanimous acknowledgments of all the abon
mentioned proprietors, assembled at this wo-
ment, with the approbation of my said Sr. Da
Pedro Piernas, in the chamber of the govera-
ment, to serve aa mutual witnesses, and t*
amrm the tact, some of their si^aturea, t^
others, from not being able to sign, by tbcit
declarations in presence of Messrs. Don Pedrs
Piernas, the above mentioned Ueutenant-Gor-
emor, and Don Louis St. Ange de Bellerin,
retired captain and first predrcessor in coniniai>J
of this said post, both serving, to wit: the Latter,
to certify by his signature, in his said quality,
and in virtue of the power confided to bi«,
that he had granted either by title [deed] sr
verbally, the above mentioned lands, in Uw
name of His Majesty (The King of France);
and my said Sr. Piernas, to approve, conSm
and ratify likewise, by his signature, in hi*
actual ciiaractor of lieutenant-governor, wheie-
by he is provided with the same power of
granting [conceder] the posBessiona allowed to
be good (accordees]* by my said Sicur de St,
Ange, and specilled in the body of this cadastre,
which I dcposite, containing sixty-eight page*
of writing, including the present, in tbe archive*
of this government, to be there preserved for-
ever, and to serve for the uses, the asauranc*.
authenticity and testimony of all therein set
forth, at St. Louia. on the twenty-third of May.
in the year one thousand seven hundred and
"M. Duralde. Amnble Gu)-ot^
"Laclede IJguest, Sarpy,
"Dodie, Cotle,
"A. Conde, St. An««,
"Rene Kiersereau, Pedro Piemaa.
"Bccquet.
M. P. I-edue, T. B. C. L- T.
"St. Louis, January T, 1812.
"True extract from the Livre Tencin, Book
N. 2."
•pursuant to this most solemn act, ["414
surveys were made of the lota respect ively
claimed snd possessed by Kiersereau and Gam-
ache, by the public surveyor, and entered ot
record on the land book of the province, and
they continued In the quiet enjoyment of the
lots from that time, as they had previoualv
held them according to the laws, nnages. and
customs of France, while under the govemmeat
of the province of the Illinois.
The plaintiff claims the premivet tn eviotro-
versy under and in right of Kiersereau and
(■amaehe, by the following chain of title:
1. By a deed made in 1781. from Marie Ma°-
dalcna Rubellar, the wife of Rene Kiers^mn.
to Louis Chaneellier, conveying one of the lot*
■snt!" Bceon)»r. araon; ai^i'
slanlflcatlona. of whrch "to gri
or aclinowledginf — ' — '--■--
be good or trus :
pears to iM Its aei
i. Q.
froni ths context.
1 the paper here ti
Utt
la qsMtfom (balng tlw <km omad to Kicner-
eso), contklning one arpcnt In front bj fortj in
depth, to which, ma the plaintilT alleged, Kier-
•ereau waa an aaiiiiting nilneaa, whereby his
right paiMd to the grantee of hia wife, accord-
ing to the law of Spain, In force in the prov-
The eonnd (ration wai four hundred livrcs,
•qual to eight; dollara.
2. By a deed of exchange made in 17TS, be-
tween Cbancellier and Gantaehe, whereby the
latter conveyed to the former one half of hia
lot, being one half arpent in front by forty
baclc, in eicliange tor an ox: and a half front
airpent, by the same depth, which Cbancellier
had owned before.
Both deeits were executed In the hall of tlie
government, in the preaenee of the local gov-
ernor, and signed by him. Tlie witneaaea of
asaiitance to the latter were, M. Duralde, the
Aurreyor- general, and Alvaret, a aergeant in
the garrison; to the former, the witneaacB of
aaalstauce were, aa named in the concluding
«)auae of the deed, "Rene Oueircero;" and in
the attestation, "Rene Kirgcaui," and Louii
3. By a deed from one of the heira of Gam-
ache, conveying to Baall and Marie Louiae Ia-
roque (formerly Madame Chancellier) hia right
in and to the remaining half of Gamachc's lot,
for the conaideration of one dollar. Thia deed
bears date 22d June, 1827.
4. By deeds from I^roque and wife, made
in March, 1827, and September, 1828, convey-
ing to George F. Btrother, the two aipenta by
forty, to which ahe claimed right under 0am-
aiche, Kieraereau, and Cbancellier, tn oonaidar-
ation of three hundred dollara.
6. By deed from G«orge F. Strother to Dan-
iel F. Strother, the plaintiff, dated July, 1827,
conTcying the preniiaes in controversy to bim
for the consideration of three hundred dollara,
43 1*) *Th« title of Laroqua and wife ia tbua
deduced:
Louia Chancellier took poasession of the lots
eonveyed to htm aa before, held and cultivated
them till hia death, in 1786; when, by a judi-
cial proceeding before the lieutenant-governor,
in hia judicial capacity, conducted in conform-
ity with the laws of Spain, the whole eatate of
Chancellier was inventoried, and appraiaed by
•worn appraiaera; the reault of which was, that
a final adjudication waa made in 1787 by the
governor, which was aigned by him and the
partiea concerned, who consented thereto. By
thia adjudication, the real and peraonal eatate
of Chancellier, after the payment of hie debta,
was divided between his widow and their only
rbild, according to the laws of distribution
Hve livrea, equal to tbirty-one dollars, for the
aixty arpente, being Hfty-one cents per arpent:
the half arpent was alao allotted to her at
eight llvrea, equal to one dollar aixty cents for
the twenty arpente, being eixht eenta per
Krpent; which ia a little more than four-flfthi
of the English acre, the proportion between
tbem being aa one hundred of the former
eighty-five of the latter.
Madame Chancellier married again in 1767
or 1788, about two and a half yeara after
ChancelUer's death, and Inunedlatelj removed
r. Ukim. «lt
CbariM, » villaga abont twaatj or twentj-lva
milea fiom St. Louii; where aha eontinuad t«
reaide, without making any claim to the Iota,
till about 181S: and no ault waa brought to la*
cover poaaeaaion thereof till tha preaent plain-
tiff prosacutad hia claim, under her right, in
the caae between the aama partita, rqMn'tad !■
S Peten, 763.
Waiving, for tha preaent, tha eonalderkUMi
of a question raiaed at the brial — whether Baaa
Gueircero, or Rene Kirgeaux, waa the rami aad
true Rene Kleraereau, the rightful owner of
part of the property in controversy betwaM
the partiea, or another peraon — wa ara elaarhr
of opinion that Madame ChaDcetlier, in 1787,
had a oood title to the forty arpents formerly
owned Dv Riersereau, and the twenty arpante
conveyed in exchange by Oamacha to Ouincel.
'ler, in auch right, and by auch tenure aa waa
jiven and preacribed by the laws of Spain and
the province, which will be hereafter eonidd-
ered; and that we cannot now queation tha
validity of thoee acta of the local governor,
whether acting in hia political <w Judicial aft-
pacity, for reaaons hereafter to be given.
Aa to the twenty arpenta held by Ganu
there la no written 'evidence that hia [*4S1
right thereto waa aver emiveyed in whole oi
part, before 1827, to the plaintiff, or any per-
aon under whom he claims; nor ia there to bt
found in the record, any other evidence of any
right thereto in Chancellier, unleas it may hara
been by poaseasion or mere claim. We find In
the inventory and appraiaement of bla aetata,
in 17&S, that the aixty arpenta were then In
wheat, valued at alx hundred livrsa, equal to
one hundred and twenty dollara, or two did-
lara per arpent, with the crop in the groundi
and the twenty aipents, valued at fifteen livraa,
equal to three dollars, or fifteen cents par ar-
pent; alao that the whole eighty arpenta were
allotted to the widow, hy the final adjudicati^
in 1T67. Thia ia, undoubtedly, evidence of a
claim by Cbancellier and ita recognition b^
the local authorities of Ita rightful existence, iO
far as it extends, competent for the court be-
low, and jury, to conaider. But for the prea-
ent we shall take theae proceeding*, and any
posHeasion by Chancellier, as not operating,
per ae, to deveat the lawful title of Gamache to
the twenty arpenta, such as It waa under the
lawa of Spain, the acta of the local authorltiea,
and hia possession and cultivation puraoaut
thereto. Whether there ia any evidence In tha
record which can have that effect, will be a
matter for future conaideration, ahould it ba
deemed important.
Thus taking the plaintiiTa title, we proeaad
to state that of the defendant, who daima under
and in right of Hyacinth St. Cyr, who, about
1788, took poaseaaion of the two lota, and con-
tinued to cultivate the front thereof for ten
consecutive yeara, till 170S-17B9, when the
fence having been deatroyed, the lot* remained
open till 1808. St. Cyr claimed In virtue of n
parol aale by Madame Chancellier to him, after
the adjudication, by hia poasosaion delivered to
him by the local officer, charged with the au-
perviaion of tha common fteld-tot* of the vU*
lage, agreeably to the local lawa, Ita uaagea and
cuatoma, conformably to the lawa of SpiUn,
together with hi* uiuntermpted sultlvatlon aa
nforet«t4
Stobuu Uooki of tbb Uviin Sfuav.
t, Bf two deeds, one from Kieraereui, the
•thur from GamKche, both dated 23d October,
1783, both originali, found among a gre»t nunt'
ber of deeds in tbe uncieDt archive* of the
country, delivered and handed over to the re-
corder of St. LouiB County, after the cesBion
in 1B03, ftud both executed by the partita, in
the presence of, and si^ed by the governor,
with the attestation of two witnesses of assist-
ance. Each deed conveys the lot owned by
the grantor, with a clause of warranty, recit-
ing St. Cyr aa having been in posseBsion sever-
43S*} al 'years; that of Kiersereau being for
tbe consideration of Qve hundred and twenty-
ilve, and that of Gamache, for three hundred
Uvrea — equal to one hundred and sixty -five
dollar* for both.
8. By the following entries on the Land
Book, containing the record of the official sur-
vey for Bane Kiersereau, "1793, St. Cyr, :
Arpent;" and the following on the survey of
"Joseph Gamache, 17Q3; St. Cyr, 1 Arpent;
name of said Gamache Is Baptiste, Instead of
Joseph ;" which entries must be taken to de-
note that St. Cyr then claimed the lots under
the parties for whom the original surveys were
made and recorded.
4. By a judicial proceeding a^inst St. Cyr
■a a bankrupt, bad before toe lieutenant-gov-
ernor in his judicial rapacity in 1801, by which
the two lots were seized, appraised by sworn
appraisers at ten dollars, and sold to Augusts
Choteau, as the property of St, Qyr, at the
church door, at the conclusion of high mass,
for twelve dollars, payable in peltries at the
current price, in April, 1802; for which one
Sanguinet was security. The whole proceed-
ing in the sale was executed in the presence of
the witnesses of aBsistanee: one of whom was
all signed the proceedings.
5. By the proceedings of tbe board of com-
missioners of the United States for adjusting
land titles in Uissouri, in 1600 and 1810, by
whicb it appears that Choteau filed bis claim
to these lots in 1606, according to the acts of
Congress, as the assignee of St. Cyr, assignee
of Bene Kiersereau, and Joseph Gamache. He
produced to tbe board the concessions for the
same, registered in the Livre Terrein, plots of
the aurveys, copies of tbe deeds from Kier-
sereau end Gamache to St. Cyr, with a certi-
fied copy of the proceeding of bankruptcy
against him, by which Choteau became the
purchaser of the two lots; and that the board,
consisting of Mr. Penrose and Bates, con-
firmed tba lots to Choteau, according to the
recorded surveys in the Land Book, No. 2,
folio 11.
6. By a deed from Augusts Choteau to the
dafendant, dated in January, IS08, conveying
him the two lots in question, for the considera-
tton of four hundred and fifty dollars.
7. By the confirmation of the rights, titles
and claims to town or Ullage lots, out-lota,
common field-lots, and commons, adjoining or
belonging to the town of St. Louis, and others,
which have been inhabited, cultivated, or pos-
•essed, prior to the 20tb December, 1803,
4>4*] *to the inhaUtants thereof, according
to their aerenl r)^ or rights in common
Ikereto.
lt*9
B. By tlw actual continued poesession of tka
two lots by the defendant, from 1B08 till tk
trial, as then admitted by the plaintiff.
Waiving at present the quiHtion which nnat
below as to the identity of the GamaclM who
conveyed to St. Cji in 1703, with the Gamadie
who was the owner of the lot, on account cf
. _. _.. foot, with the
of Hyacinth St Cjr, a* haa been daw
in relation to the similar objection to the dead
from M. If. Bobillar to Chaiicellier, in 1781.
wa are dearly of the opinion that the title of
the defendant muat be held valid unle«a the
plaintiff has suatained some of his objeetioas
thareto by the law, or the facts of the cmse as
they appeared from the evidence, on which
the instructions of the court must be taken t«
be founded, as the subject matter, to which a
reference is necessarily made by the eounad in
the court below.
When this cause was before us In 1838, it was
decided on the case, a* made out by the plain-
tiff on the trial; the defendant offered no eri-
dence, and neither court did or could decide oa
the rights of the parties, as they may depend oa
the record, written and parol evidence, preaented
for consideration in the present record. Had
this case been identical with the former as to
the merits, we should have followed the de-
liberate opinion delivered therein; but u om
judgment in ejectment is not conclusive on the
right of dther possession or property in ths
premises in controversy, the plaintiff has a
right to bring a new suit; and the court must
consider the ease, even if it is in all respects
identical with the former: though they may
hold it to be decided by the opinion therein
given. It is otherwise when the second ease
presents a plaintifi' or defendant's right, tm
matters of Isw or fact, material to its de-
cision, not appearing in the record befon;
it then becomes the duty of the court to de-
cide all pertinent questions arising on th« rec-
ord, in the same manner as if the case came he-
fore them for the first time, save sach as arise
on evidence identical as to the merits, bi this
case we deem it a peculiar duty, enjoined npoa
us by the nature of the case, the course of the
able and learned arguments as to the Ikw of
Spain and her colonies, in its bearing on t^
interesting question before us; together with a
view of the consequences of onr final deeiaioa
thereon. Were we to leave any questions mde-
eided whicb fairly arise on the rreord, or to de-
aide 'the cause on points of minor im- [*4ai
portance only, the value of the premises woold
justify future litigation; which no court af
chancery might uink proper to enjoin sa
long aa new and material facts coald be de-
veloped, or pertinent points of law ramaiBed
unsettled.
There is another consideration of ImperioBi
consequence In relation to the ri^ts of property
claimed by virtue of public or private grants,
of sales by judicial process, by forra«l decda,
or informal writings by parol agreements, or h7
possession alone, ^r long time, in all parts i
the country; especially tnoae new and fkHuish-
ing, and most emphatically, when the property
waa originally held under the laws and uaagn
of a fonign goveniment; and above alL la aaA
■a aa Utfa.
ISM
BnoTHn T, LuoAs,
Bj the roewd eridenee before ne of Judidkl
■■]», which, b; the admitted laws of Spaio,
treiiBter to the vendee both title and poaaeBBion
in virtue of adjudication, which, after the lapse
of flft;-one fears after one eucb aale, and
thirtj-»even of the other, we muat, on every
principle of law, take, aa Importing abiolute
verity In all things contained io such record,
and not suffer it to be questioned. It appears
by a record thereof that the ri^t of Chancel-
lier was sold in 17B7, for thirty-two dollars and
eixty cents; and of St. Cyr, in 1801, for twelve
dollars; the aggregate of Imth sales being only
forty-four dotTare eixty cents, a sum not suffi-
cient to pay the printing in tbis case. VVlint the
value of the premises now is, or may be in
future, cannot well be iinown; but as the law
of this ease is the law of all similar ones now
existing, or which may arise, it is our plain
duty to decide it on such principle. That while
we do as the law enjoins, reepect ancient titles,
C>sseBsion and appropriation, give due effect to
gal presumptions, lawful acts, and to the gen.
oral and local laws, usages and customs of
Spain and her colonies; we do not adjudge a
title to be in either party which rests on acts
incompetent to vest, transfer, or hold property,
in opposition to that party in whom the right
exists, by the laws of the land, and established
rules and principles, which vest property and
rcKulate its transmission and enjoyment.
The State in whicb the sreroiaes are situated
was formerly a part of the territory, first of
France, next of Spain, then of France, who ceded
it to tbe United States by the Treaty of 1903,
in full propriety, sovereignty and dominion, as
she had acquired and held it (2 Peters, 301, etc.),
by which this government put itself in place of
the former sovereigns, and became invested
with all their rights, subject to their eoacomi-
43S*] tant 'obligations to the inhabitants. 4
Peters, G13; 9 Peters, 734; 10 Peters. 330, 335,
728, 732, 738. Both were regiiletcd by the law
of nations, according to which the rights of
property are protected, even in the case of a
conquered country, and held sacred and inviol-
able when it is ceded by treaty, with or with-
out any stipulation to auch effect ; and the laws,
whether in writing, or evidenced by the usage
and customs of the conquered or ceded country,
continue in force till altered by the new sov-
ereign. 8 Wheat., 680; 12 Wheat., 628, 636; 6
Peters. 712; 7 Petere, 8S. 87; 8 Peters, 444, 466;
9 Peters, 133, 734, 747, 74S, 740; Cowp. 205,ete.;
2 Ves. Jun. 349; ID Peters, 306, 330, 721, 732,
etc. This court has defined property to be any
right, legal or equitable, inceptive, inchoate, or
perfect, whicb before the treaty with France in
IB03, or with Spain in 1819, had so attached to
any piece or tract of land, great or amall, as to
affect the conscience of the former sovereign,
"with a trust," and make him a trustee for an
individual, aerording to the taw of nations, of
the sovereign himself, the local nsage or custom
nf the colony or district, according to the princi-
plea of justice, and rules of equity. 6 Peters,
70S, 714; 8 Peters, 4S0; 0 Peters, 133, 144, 737;
10 Peters, IDS, 324, 331, 335, 338. The same
principle has been applied by this court to
tbe right of a Spanish town,aa a municipal cor-
poration. 10 Petara, 718 to 730; paasim, 144,
vide, aUo, 1 Tea. Ben. «B8; 2 Bligh. P. Q. H.
S. 60, etc
This court hM also uniformly held that the
term "grant," in • treaty, comprehends not
only those which are made in form, hut also any
concession, warrant, order or pertnission to
survey, possess or settle, whether evidenced
by writing or parol, or preaumed from posses-
sion (vide the cases last cited; B Peters, 406,
487; 0 Feten, 162, 170; 10 Fetera, 331-340; S.
P. 10 Peters, 718, etc.}, and that in the term
''laws" is included custom and usage, when once
settled; though it may be "comparatively of re-
cent date, and is not one of those to the con-
trary of which the memory o( man runneth
not, which contributed so much to make up the
common law coda, which Is so justly vener-
ated." 9 Wh. 686. Its evidence consists in the
usage or custom: for the custom then becomes
a part of the contract, and may not improperly
be considered the law of the contract, and it
rests on the same principle oe the lex loci. "All
contracts are to be governed by the law of the
place where they *are to be performed, {*4S3
and this law may be, and usually is proved «■
matter of fact." The rule is adopted for tbe
purpose of carrying into effect the intention and
understanding of the parties (0 Wh. 668; S. P.
12 Wh. 187, 188, 801; 6 Wh. 309; 6 Peters,
716, 771; 8 Peters, 372i B Peters, 734, 736; 10
Peters, 331, 712, 724^729, 730), as universally
understood and admitted (9 Peters, 145) by tbe
people of the vicinage (6 Wh. 384); aa con-
sidered by tbe publie for years (10 Peters, 722;
11 Peters, 63), and a right so acquired is aa in-
violHbie as if it was founded on a written law.
9 Peters, 146. It exists by a common right,
which means a right by common law; which is
called right, and sometimes common right, or
the laws and customs of England, the statutes
and customs of the realm; and what is proper-
ly the common law, is included within eommon
right. Co. Litt. 142, a, b. It is so called be-
cause it exist* in all the subjects by the com-
mon law, an universal custom, and is thus dis-
linguiahed from the same right, claimed by a
local custom in favor of the inhabitants of a
particular place (8 Peters, 716) ; and b^ an ex-
clusive private right, in one or more individu-
als, by a prescription in their own favor. Co.
Litt. 113, b; Wood. Inst. 4, 8; 7 D. C. D. 93; I
Bl. Com. 76, 263. The eommon right of tbe sub-
ject existed before any prescription (Mo. 674,
676; 2 Wils. 200); it must t>e set up as such,
and not by prescription (Willes, 286) : "for a
man shall not prescribe in that which tbe law
of common ripht gives" (Nov. 20); for the
common law is tbe best and most eommon
birthright that the subject hath, for the safe-
guard and defense of his rights of peraon and
property. Co. Litt. 142, a.
Svery country has a common law of usage
and custom, both local and general, to which
the people, capecially thoee of a conquered or
ceded one, cling with more tenacity than to
their written law*, and all sovereign* respect
them. The people of Kent contended with the
conqueror of England till he conflrmed their
local cuatoms and tenure, which continue to
day; and blatory affonla no instoaoe where
417
Sunnn Ooim or n» Uhrv Bnma,
tke peopla have lubtnltted to tlirfr kbrogiUin
without A struggle; &■ was the mm in Lmiisl-
mnk, when they found that the Uwi of Fr«iic«
and tho eustomB of Pari* were about to be
■upeneded fa; thoae of Spain. Vide 1 Fartid.
preface) Whtte, 908,
No i)rinciple can b« better eitabliihed by the
aothoritjr of this court than "that the acts of
ui officer, to whom a public duty Is auigned
by hia king, within the sphere of that duty, are
prima facie taken to be within bia power."
TThe princlplei on which it reflta are
" "1 >heH»v* -
at showiiig that the officer haa transcended the
poWeta conferred upon him, or that tl»e train-
action Is uinted with fraud." 8 Pet«r«, 4G2,
463, 456, 404; D Petera, 134, m, IK: 8. P. S
Peters, 727, etc., and eaaea oited; 10 Peters,
S31; 8. P. 1 Paine, 4S0, 470. The same rule
appllea to the Judicial proceedings of local offi-
cers to pass the title of land according to the
eOurae and practice of the Spanish law in the
province (West Florida]. t Peters, 310.
Where the act done Is contrary to the written
order of the king, produced at the trial, With-
out any explanation, it shail be presumed that
the power ha« not been exceeded; that the act
was done on the rootlvea set out therein, and
according to some order known to t^e king and
his officers, though not to hia subjects (7 Petera,
D6t a Pet. 447i 4E1, 4M, 4H), "and courts
twght to require »erj full proof that he had
trvuscended his powers before ttiey so de-
twraine It." 8 Peters, 464; 9 Peters, 734. In
following the course of the law of nations, this
court has declared that even in cases of con-
Siest, the conqueror does no more than displace
e sovereign, and assume dominion over the
country. 7 Peters, 86; 10 Peters, 720. 720, 730,
passim. "A cession of territory is never under-
stood to be a cession of the property of the in-
habitants. The king cedes only that which be-
longs to him; lands he had previously granted
Were not his to cede. Neither party could so
Understand the treaty. Neither party could
consider itself as attempting a wrong to in-
divlduala condemned by the whole civiEised
world. The cession of a territory' would neces-
sarily be understood to pass the sovereignty
only, and not to Interfere with private prop-
erty." lb. ST. No construction of a treaty
which would Impair that aecurity to private
property which toe laws and usages of nations
would without eipreas stipulation have con-
ferred, would seem to be admissible further
than its positive words require. "Without it
the title of individuals would remain as valid
under the new government as they were under
tha old; and those titles, at least so far as they
were consummate, might be asserted in the
courts of the United States, independently of
this article." lb. BSj « Petera, HI, 742; B.
P. S Peters, 133.
Tbe terms of a treaty are to be applied to the
state of thing* then exietiog In the mded terri-
tory (8 Peters, 462) : in that which bad been
held by Spain, the whole power of granting
and confirming titles had, by the royal order of
ITM. been transferred to officers in the C9lg-
Hit
nlee, tbe commandaala ef poata, anfl [*4tt
local authorities, who acted in thdr diaaetlse
as the sole Jud^ of the manner, eondiUoo, «r
canslderation, m, on, or for which they coa-
ferred tbe right of property, aa officers asd
competent authorities, to ezen:iae the graatiif
power. Such officers were In all the eolenin;
they made grants of all grades of title, as wdl
in rewarda for aervicea as favors, im' fm" tW
benefit of the country, as they pleased; beii|
persons authorized by tbe king to grant lasdi,
"he was not willing to expose the acta of U*
puUle and confidential officers, and the titJe ol
his subjects acquired onder those acta, to ttut
strict and jealous scrutiny, which a toniga
gavemmeat, Interested asainst their vsfi£ty,
would apply to them, if his private ioetructiaai
or {mrtlcular authority were to be required in
•very ease ; and that he might therefore stipa-
late for that full (evidence) to the tastrument
itself, wtiich is usually allowed to inatrumenti
issued by tbe proper officer." S Peters, 44B,
460 to 45B, 4TB. 488, 489 i 7 Peters, 96; ft Pe-
ters, 134, lOD, T34; 10 Peters, 331; 8. P. I
Peters, 727, etc.; White'* Comp. Sp. Laws,
218, 249. Such a grant under a general povcr
would be considered as valid, even If the pow-
er to disavow It existed until actually diss-
vowed. 8 Peters, 461. No such diaavowBl
has ever been known to the court, in any of the
numerous cases which have been before as,
arising under the treaties of 1S03 and 1819; and
tbe assiduous researchea of Mr. White bare
brought none to his knowledge (B Petera, 4S8;
10 Peters. 332; White's Camp. 9); from whkh
it may be reasonably presumed that none exist.
Treaties are the law of the land, and a rale
of decision in alt courts. 2 Petera, 314; 9 Ft-
Their stipulations are binding on
tlie United States; in that of 1810, there is a
confirmation of all grants made before
January, 1B18, with the elception of only
three, which had been previously made, aaa
were expressly omitted, on which this court
make these remarks; "While Florida re-
mained a province of E^in, the right of Hi*
Catholic Majesty, acting in person or by his of-
ficers, to distribute lands according to hit
pleasure, was unquestioned. That he was in Ut
constant exercise of this right, was well knows.
If the United States were not content to receive
the territory charged with titles thus created,
they ought to have made, and they would hare
made such exceptions as they deemt^d neco-
Bftry. They have made these exceptions. They
have stipulated that all granta made aince the
24th of January, 1818. shall be null uid void.
The American government was content witk
the 'security which this stipulation af- [*44l
forded, and cannot now demand further aad
additional grounds. All other coDcesaioaB
made by Hia Catholic Majesty, or hia lawfnl
authorities. In the ceded territories, are aa rttU
as if the cession had not been made. B Peten,
463, 1«4; S. P. e Peters, 734; 6 Peters, 741,
742; 7 Peters, 88. By the treaty of IBOI.
there was a stipulation inter alia, that the ia-
habitants of the ceded territory shall be mala-
tained and protected in tbe free enjoymaBt rf
their liberty, property, and tiie religion thsf
profess; as to whieb, this la tile la^guac* ^
tills court.
That the perfect inviolability and aeearlly
lUB
Srothh t. Lnou.
af prapwty U wnoas tiiMe rIghU, iXl irill M-
urt and nuinUln." t PeUra, 1S>; S. P. 10
FeUn, 718, 722, T3«. Wbat wu to be con-
■idered a^ property, under thia atipulation, wu,
M held in the Unitod SUtes v. Smith, to de-
pend on thia qaeation, "whether, in the given
csae, k court of equity eouEd, according to Ita
rulu, and tbe law* of Spain, conaidei the con-
■cicDce of the king to be ao alTected by bis own,
or the acta of the lawful authorities of the
province, that be had become a truitee for the
claimant, and held the land claimed bj an
equity upon It, amounting to a aeverance of ao
much from hia domain, before the 10th of
March, 1B04, in Hiiaouri, and the 24th of Janu-
•r;, IBIS, in Florida; the perioda fixed by the
law (of CoDgreaa) in one ease, and the treaty
in the other." 10 Petera, 330, 331, 722, 738,
8. P.
It i* next in order to eontiider what were the
laws of Spain a* to the disposition of the royal
domain in Louisiana, while she held it. By
the royal ordinance o( I7M, it is ordained, for
the reasons set forth in the preamble: 1. That
from the date thereof, the power of appointing
aub-delegatea for eelling lands, and the uncul.
tiTBt«d parts in the king's dominions, shall be.
long exclusively to the local authorities, being
bis oflicers in tlie colonies. S Petere, 461. 2.
The officers to whom jurisdiction for the tale
of lands shall be sub-delegated, shall proceed
with mildness, gentleness, and moderation,
with verbal and not judicial proceeding, in tlte
ease of landa possessed by the Indians, or which
they may require for labor, tiUaf[e, eto. 3. In
regard to the lands of communities, and those
granted to the towns for pasturage and com-
mon, no change shall be made; the towns shall
be maintained In possession of them; those
aeized sliall be restored; and their extent en-
larged according to the wants of the popula-
tion; nor shall severe atrictness be used towards
those persons who are in possession according
to the requirementa of the laws. 4. Those who
have been in possession of landa by acts not
441*] confirmed 'before 1700, may retain free
pOBsession thereof without molestation. If per-
BORS have not warrants, their proof of long
possession shall be held as a title by prescrip-
tion. I( they have not cultivated the lands,
three months shall be given, or whatever time
may be thought sutlicient; and notice shall be
given that if they faU to ciUtivate the lands,
they shall be given to those who shall lodge
information thereof, under the same condition
of cultivating them. White's Comp. 50, 51.
Towns may be founded on prescribed con-
tract to grant to each person who j
settlement, baflding lota and pastnrea, and
lands :or cultivation, piwortionate to what he
will SKTee to Improve. White, No. S2. A town
contAining ten married men, with an extent of
territory proportioned to wbat Is stipulated,
may elect from among tbemaelves, ordinary
alcaldes, and officer* (rf the council. Whit^
No. 6S. The territory granted to the founder
of a settlement ahall be thus distributed : They
shall lay out for the aite of the town, whatever
may be necessary, sufficient exidor, and abun-
dant pasture for the cattle of the inhabitants,
and as much beside* for that which shall
belong to the town proprias. Of the balance of
the tract, tl>e (ounaer to have one fourth, and
three fourths to be equally divided among the
settler*. White, No. OS. The tot* to be di*-
trihuted by lot among the settlers, beginning
with those adjoining the main square, the re-
mainder to be reserved to tbc king, to give as
rewards to new settler* or otherwise, at his
will, and I plot of the settlement to be made
ont. White, No. S7. Commons shall be reserved,
and the remainder laid out for cultivation, in
tracts equal in number to the town lots, to be
drawn by lot. White, No. 70. If accident
should prevent the completion of the settlement
in the term prescribed, the settlers shall incur
no forfeiture or penalty, and the governor of
the district may extend the term according to
the circumstances of the case. White, No. 73.
There shall be distributed among the settlers of
the villages, lots and lands, vaiying In aife
and extent, according to thdr rank and merit,
and after living and laboring therein four
years, they may sell them a* their own prop-
erty. White, No. 74. No persons shall have
lands in one settlement. If they possess land* in
another, unless they have left their former, and
removed to their new residence, or resided in
quished it for not having fulfllled their obliga-
tions. White, No. 76. *The lota shall [■44a
be built upon, the houses occupied, the arable
lands divided, cleared, worked and planted,
and those destined for pasture, stocked within
a limited time, or the grants shall be forfeited,
with a penalty. White, No. 78. The distribu-
tion shall be made by the governors, under tbe
advice of the council of the villagera. White,
No. 78, vide Document of 1772. All to whom
lands shall be distributed, shall, within three
months, take possession, etc., under penalty of
forfeiting the land, that it may be vacated and
forfeited to some other; so as to the settle-
I. — DellDftlon ol reglmlento, lecldor, alcaldes,
etc.. In the laws of the Spaolsb empire of the In-
die*.
Id the admlnlstratloti of the laws. In dvll and
crlmlnsl matters, sad the regulation of the police,
the settled territories of the apanlsh empire of tbe
iDdtes were divided Into a numtwr of sectloaa,
dlfferlDB In extent ; over each of wblch was Disced
a rofar aOcer. appointed for a limited period b;
tke Bnpreme Counclt ol the Indies. The larger
■eettons were termed proTlDCei, or more propcrlj
nbcmsdones or lovemments, anil were supcvln-
tanded Iv Koveraors, wna wiire slso In nianv
■ eommandants and captalns-geDersl, that (■
Sand political swar- Tbe
bat eft«B et great ba-
altnt (
sepsrats JoflsdlcUons
were placed under tbe direction ol an sicalda msr-
or. In plsces In wblcb resided an SDdleDCls, or
blgb conrl of Justice, tbe president was aometlmes
tbe sdmlnlBtrator In chief ol the law and police.
The seats of adTnlnLatratlon, or capitals of these
tbem. from ■
e section In s
cablldo I the aruntamlento Is, strictly spssklng, tl
council, and the caUido, the pisce of Its mectlni
BuPBEua CouBT or the Unitid Statu.
4*i*] officers •ftppointed for the purpose, their
titles to lands, estatea, huta, and cabelleriaai
wbo, after conflnning the poisesaion of Burh as
hold th« same hy virtue of^good and legal titles,
or bf » juat prescrtption, shall restore the re-
mainder. No. S4. Officers were ordered not
to alter the aete of their predPcesBora with re-
nrd to lands admitted to composition, and to
leave the holders thereof in quiet possesBion;
Mid those who have encroached, and held more
thAn they are entitled to, shall be allowed to
paf a moderate composition, and new titles
■hall be issued to them. Where titles to land
bave been issued by ofEcers wbo were not
authorized, and have been eonflrmed in coun-
cil, the holders of letters of confirmation are
ordered to retain them, that thpy may be con-
firmed in their possexsion within the limits
K Escribed; and, as rcfiards their eneroachments
yond the limits, they are entitled to the
benefits of this law. No. 83.
Those things which the king gives to any.
one cannot be taken from him by the kin;;, or
anyone else, without some fault of his: he sliai'
dispose of them at his wilt, as of nrv other
things belonging to him. White, 82. Nn 11.
When the justices and regidores of a cilv. tcmn.
44B*] *or village, have made siiJ continue '<i
make ordinances for their officers anil Fiiniti^in-
nries, and superintendents of the limits ;ii:cl
commons in the country, as for otiier mailers
which are of the resort of the judieiary and
regidores (or capitulores) the auditors and
alcaldes are not to interfere therein, except by
appeal, and in case of damages. While, 83.
No grants shall be made of the rights, rev-
raues. or municipal domains of villages, and all
grants thereof made by the king shall be void.
Ib.i vide, 10 Peters, T20, 724, etc. There shall
be commissioners in each village, to superin-
tend the affairs thereof connected with the
municipal taxes and domains, and the manj^je-
ment thereof, to be composed of alealdes aai
regidores; and, if thought proper, of tbe graenl
attorney and recorder (Procurado Sindieo G«a-
eral). Where there are no touniripa! taxes,
these commissioners ahall attend to the best
management of the municipal domaina; and
where there are such taxes, of botb. White,
88. Tbe superintendent of the settlement shall
select the tracts, and locate the bousea of the
settler; if any part of the tract belonging to
the settlement is proper for irrigation, it shall
be proportionately distributed ; eacb settler
shall open the channels for irrigation, and eon-
tribute equally to their repairs. White, lU.
Landmarks shall be erected between i-ach lot.
trees planted along the dividing line, m recwd
of distribution among the settlere shall be
made, containing the number of tracta, the
names of the settlers to whom allotted, giving
each a sheet or plot of his tract, which shall he
his title in future, to remain in his poEsesaiin,
to be consulted without the necessity of reoort-
ing to the record itself. White, 106, p. 40, No.
81.
These are some of the many roya] ordvs
which relate to the general domain of the kiw,
and to settlements or villages, in each of vhidi
(here were municipal councils and officos,
who made and executed their regu'atians of
police, to Peters, 723, 724. One branch of
which was confided to a syndic regidore, or
other superviHing officer, to enforce the village
ordinances. White, ICe, 109, 110, 111, lU,
113, 115, 118. These, with the regulations of
the local oflicers of the kin^, composed the
written law of the colony or village, aecordiaf-
ly as the subject matter thereof was general or
loeal ; besides which, there was an unwritta
law of three kinds. "Use, custom, and tbe
common law." Use is defined to be "that
which has arisen from those things which a
man says and does, and is of long continuance,
and without interruption," the requisites to tie
validity of which are prescribed. "Custom is
the law or rule which is not written, and
the two words are, however. IndllTereatly used In
coDvejr both ilBnlQcatlODi. Tbls municipal couocll
was compoBUd, la tb? first piece, of a uumbir ot
reildores, never e(cei>dlDg twelve, wbo composed
the reilnileDto ; the oDlce ot regldar was bcid far
life: tlist iB to BUT, during tbe pleasure at llie
chased: In some eitiea, bowevpr. tbe re^^doveg Kere
Cbdaen bj perBOUB of (be dlstrtet. who ivere allowed
which I
I regldor
■ wbo belli theli
_.. oil the c-
ectde ; they had
ind '
the 3Tatrrct tiaJTa seal, but no voTce In the ayuata-
nlento ; tbe Bts nd a rd -bearer, or altarei. bad of
rlsht a pre-eminent place and a vote.
Thus tha ayuDtamleiito or cabUdo conilated of
the Roveinor. correKldor or alcalde mayor of the
place, the slfurei, tbe alcaldes ordlnarlos. acd tht
reilmlento. or Iwdy of regidores.
Tbi word "syDdlck" daes not aptiear In the
recapiledoa or oIDclal compilation of tbe latrs of
th« Indies. The Spaalsb dlctlonar; of the academv,
and the Frcach Bulbars on JurlHprudcnce, ai;ver. in
deflnlDE It to mean the person ctanrged with the
eate, defence and idvani^ement of the Inlereita of a
eommunltr. In France, at present, the tniatee who
holds tbe propertj ot a bankrupt. Is styled le syndic.
With regard to tbe woid* prsploa or pcuiirlaa,
->xldDB or e(ldM oad depesas.
1»0
When a town was tonndcd In Spanish Ametka.
Inld off and ceEerved us tbe 'uDallenable property af
(be town, for tbe purpose of erecllns pulilfc boild-
IngB, markets, etc.. or to be used In anj other way,
under tbe direction of tbe municipality for lb* ao-
vancement ot tbe revenues or the proaperllj tt
tbe place. There were also reserved la the vicinity
cetlaln apaees ot ground for eommons or paWlc
sjiaces^r exercise, and for Ihn-sbl^ com or other
general uses, called eildoa. The dlfferenee between
the proplOB on (he oce hand, and the depeaaa aad
eildos, on tbe oiber. waa Ibat the laller wen to-
tended for specific purposes, and could not be a^
proprlsted to any others: wblle tbe munlelpaltti
might convert the propleB to the uae* whfcA H
should Judge most convenient.
\Vltb rcsiicct to the measures of siouDd calld
fanegaa and huebras.
The dictionary ot tbe Spanish aeadeav, Ike
highest authority on the mere slgnlllcBtlaa •(
words In that laaguage, dtfiuea a tanrga to im»
ai much giuund as a faaej^a (a measure eqnlralsit
to a llitlv more than a bushel and a hair)at wk«ai
■Idcred equal to four hundred eitndalea (or spacea
of eleven Rniolsb feet) (quars. Kelly. In hit Cs*
. fanega or lanegada equal to An
as being as much ground as two osea can p
On the BUbJect of caballerlaa and nanlaB, I eat
only give my tranalstlon tt tlie law aeBBlng tw*
SraoTHn t. Locu.
446*] 'which men bftve used for & long tlm«,
•upporting themBelveg b; it in the things and
reasons with respect to whinh tliey have exer-
cised it, on which definiliun are foundod throe
1. "That custom is introdui'ed by the peo-
ple, under which name we umJerslanil the un-
ion or assemblage of persons of all description,
of that country where they are eollectcii. 2.
That it derives Jte autbiiriry from tlie exprcBs
or tacit consent of the king. 3. That once in-
troduced, it huB the force of law. To estaliiish
* custom, the whole, or greater part of tlie peo-
ple ought to concur in it. Ten years must have
elapsed among persons present, and twenty at
leust among persons absent. In default of this
continuance, it shall be proved by two sen-
tences of judges, or judgments given upon or
according to it; one sentence suffices, when
given on a question whether that custom exieta.
and the jud^e determined that it did." Cus-
toms are general, or particular; the latter re-
spects a spefidc thing, a particular person, or
place; or wilh respect to the whole, of certain
persons or places; general, with respect to
flpccific acta of all the inhabitants of thi' king-
dom, and may destroy lite law; but a particu-
lar custom in any province or sei(;niory, has
only this effect in that district or part where it
hath been exercised. "A fuero [foruml ii an
use and custom combined, and has the force of
law." White, 60, 61.
Such are the laws, usages, and customs of
Spain, by which to ascertain what was proper-
ty in the ceded territory, when it came into the
hnnda of the United States, chsrgi>d with titles
originating thereby, creating rights of property
of all grades and description. la the treaty of
cMsion, no exceptions were made, and this
court has declnrcd that none ran thereafter be
made. 8 Peters, iS3. The United Stotps
must remain content wilh that which contented
them at the transfer, when they assumed Ihc
precise pnsition of the King of Spain. The
United States hav* lo rmutfncd, as appears hf
n.cir laws. By the acts of 18M (2 Story, 939),
or I80S (tb. 066), of leOT (lb. 1060, 1002), ot
ISIS (lb. 1604), they recognized the laws,
usages, and customs of Spain to be legitimata
sources of titles; and, by the act ol 1812 (8
Stury, 12ST), condrmcd to the inhabitants of
St. Louie and other villages, according to their
several ri|;ht or rights of common thereto, tha
rights, titles, and claims to town or village lota,
outlots, common field-lots, end commons, In
brionging or adjoining to the sarne, which
titles depended on parol grants and local ciu-
The same recognition extended to gntnta t«
actual settlers, pursuant to such laws, usagea
and customs; to acts done by such settlers to
■obtainagrant ot lands actually settled, ["441
or persons claiming title thereto, if the settle-
ment was made before the 20th Deeemher, 1803.
Such claims when made in virtue of a warrant
or order of survey, or permission of the proper
Spanish oflicer, were confirmed, if actually in-
haliited and cultivated on that day (2 Story,
nCO], and the permission shall he presumed, on
proof of a continued habitation and cultivation
for three years prior to the 1st October, 1900,
thoiif;h the party may not have it in his power
to produce sufficient evidence of such permis-
sion, lb. 1018. Thus connecting the law of
nations, the stipulations of the treaty, the laws,
usages and customs of Spain, the acts of Con-
gress, with the decisions of this court, we are
furnished with sure rules of law to guide Ua
through this and all kindred eases, in ascertain-
ing what was property in the inhabitants of
the territory when it was ceded. As all the sn-
preme lawa of the land, the constitution, laws,
and treaties, forbid the United States to
violate rights of property thus acquired, so
they have never attempted it; but the state
of the province required that some appro-
priate laws should be passed, in order to as-
certain what was private, and what public
Translitlon or law 1st. Title IZth, Book 4tti, of tlie
RecapllsclDD de I.e^is de Indlas, Mndrid. 17B1.
That lands aud lots ore to be given to nov set
tlors and Indlaaa to bo a^sl^ned to them ; and nhnt
are meaat bj n'onla and caballerla; D. rernindo
V. In VaUadalld. Jtme Ifi, end August 9ib. IfAS.
Cbap. I. Tbe Emperor, I>. Carios, od Jbe JMIi of
June, 1S23, and In Toledo on tbe l»1b ot May,
1B3G. D. PhllUi tbe se.ond. In bla rbapler ol In-
■trucUons at Toledo. Ma; 2Slb. 1596.
Id order to encourage our vassalH In tbe dlscoT-
er7 and aettlemeat ot tbe Indies, nod r* '
live with tbat i-omtori and eoavenle:
flealre (tor tbeml : It Is our will,
bnlldlnc lots, lands, rabsllfrlns and pconlas may be
and shall be bb-' — -•■ — -" -'■ '■■--
of new lands I
ttaej' isar be dlrecled Liv the governor of tbe new
■ettlement. makloK a dl<itrnrtion brlneen centle-
— 1 of family, and Inborera, and thonc -' '
Tbe sam
And ni
Ordlni
e 104. 105 and H
of Setr' —
poaslbly happen tbrit Id the asalicn-
i..cui uL lui: iDuus (here may be doubts wltb regard
to measureii : We declare that a peonia comiiriiwB
a lot flfly feet wide, and a bundled long; a hun-
dred fanegns of land for cultivation of wheat or
barley ; tea of Indian com : two buebraa ot land for
a garden, and elgbt for plaollDif other trees grow-
ing In drier land : pasture ground tor ttin breeding
. ._ a_. . . '-■iiidred sheen.
- - - - ..J consist of a
t wide hf two hundred long,
-ta «]Ub1 to five peonlas; tbat
fanPROS of L-fOiiuil tor culll-
Iry, flfly of Indian corn; ten
arden : forty far other trees
'.o land : pasture ground tor
hundred eotva. twenty horses.
and In quality, aeco
degree and worth :
may be Increaaed In
Ing to thr services
lo raising ot eallte : and afti
and labored on tbcae [honst
power, thenceforward, to i
tlien. agrernbly to their o
fro|)«rtr : and llkenrlw agrrcabty to tbe ouallty.
he^vernor,_or whoiver may liold our f;i,ulfy.
rta Is a portion granted on
orse aoldfpr. By the above
mayTarsbslI] aasTgn'l
trlDntlon wlilch he ma;
. and pemoni of I
ttie proOelencle* ot such Indiana, according ti
apjieara to he strictly a measure, withoat any
re/erence to tbe qua-"*- -• — •■ — -*-
ground, and ao do«
o tbe quantity of seed ti
*a
B Coon o* TBM Umm BtATo.
ftoptttj, to give repose to poaieuion, security
to titles depending on the evidence of fact* re-
mote in time, difficult of proof, und in the ab-
■cDce of records or other writinsB. These facta,
too, on which the law of usage and cuetom, the
tranemJBBion of propertj* by parol, the perform-
ance of acts in pais, on which the right depend-
ed, were to tte developed from the few surviv-
or* of the settlers of an ancient village, of
whom, as appean from the record, hut few
could read or write: whose occupations were
in the trade with Orleans, Mackinaw, and the
Indian tribee, who attended little to village con-
cerns, and still less to village property, when,
on a public sale, its price was eight cents an
arpent; and what would now be a splendid
fortune, would not, fifty years ago, be worth
the clerk's fee for writing the deed which con-
veyed it, and was therefore passed from hand
to hand by parol, with less formality than the
aaleof a beaver skin, which a hunch of wampum
would buy. The simple settlers of St. Louis
then little thought that the time would ever
come, when, under a stranger government, the
sales of their poor possessions, made in the hall
of the government, at the church door after
high mass, entered on the public archives, as
enduring records of their most solemn trans-
actions, would ever be questioned by strict
rulee of law or evidence. Still less did such a
race of men, as the boatmen and hunters of the
west, who by mutual agreement gave one thing,
448*] and took another, whether 'land or
Eeltry, on a fair exchange by a shake of the
and, ever imagine that a common Held -lot
would ever be worth, when lying waste, a pack
of furs, or that no evidence of its sale would be
admissible, on a question of whose it was, un-
less by deed. When there was but one Kier-
sereau and one Gamache in the village, it was
little dreamed of that a principality in value,
would depend for its ownership on the question
whether the one wrote his name Kirceraux or
KirgeauK, or to the mark of the other was af-
fixed the name Joseph Batie, of J. B. Gamache.
Well was it said by one of the witnesses at the
trial, "there were few people; it was not as it
is now." Record, page S8.
Congress, well aware of the state of the
country and villages, wisely and justly went to
the extent, perhaps of their powers, in pro-
viding for the security of private rights, by di-
recting all claimants to file their claims before
a board, specially appointed to adjust and set-
tle all conflicting claims to lands. They had
in view another important object — to ascertain
what belonged to the United States, so that
sales could be safely made; the country settled
In peace, and dormant titles not be permitted
either to disturb ancient possessions; to give to
their holders the valuable improvements made
by purchasers, or the sites of cities, which had
been built up by their enterprise. Vide 10
Petera, 473. Accordingly, we find that by vari-
ous acts, the time of filing such claim is lim-
ited; after which they are declared void, so
far as they depend on any act of Congress;
and shall not be received in evidence in any
court, against any person claiming by a grant
from the United States. 2 Story, 968, 1061,
1216, 1260, 1301.
These are laws analogous to acts of limita-
tions, for recording deeds, or tdnag effect to
1161
. tkf timi
of their operation, and the ei-
ceptiona to them, depend on the sound dii-
cretion of the Legislature, according to tbt
nature of the titles, the situation of the eoini'
try, and the emergency which calls for thor
enactment. Reasons of sound policy have ltd
to the general adoption of laws of both de-
scriptions, and their validity cannot be qwi-
tioned. Cases may occur where the provisions
of a law may be such as to call for the interpo-
sition of the courts; but these under consider-
ation do not. Vide 3 Peters, 289, 290. They
hsve been uniformly approved by this court |ia
12 Wh. G2B, E29, G37, 639, 643, SOI, SOS; «
Petera, 771, 772; 7 Peters, 90, to 93 paasiml,
and ought to be 'considered as settled [*44t
rules >f decision in all cases to wliich they sp-
'%.,
laving reviewed the written law of the caae,
we must next examine what was the unwrittea
law of the place, which can appear only froiB
the evidence in the record, as to the uaagea,
custom or fuero, and is moat manifest: 1. I*
the most solemn act of 1772, by the two g«v-
emora, In the presence of all the officers of gov-
ernment, the people of the village, and recorded
together with all proceedings under it at large,
in the land book of the district, with the sur-
veys entered on sixt^r-eigbt pa^s. What those
proceedings were, will appear in the dociuneat
liefore referred to in general, and the copiea
from the entries In the land book, in relation ta
each lot, contained in the record. 2. In the
deeds executed in the presence of the governor,
and witnesses of assistance spiM^ialty selected to
attest the sale; as by the common law they
were called to attest the livery of seisin oa a
fenffment (S Cr. 244, etc.), and the entries of
the names of the purchasers in the niart^in «(
the survey of the property sold, recorded in tbe
land book of the villnjje.
3. In tile adjudications made by the gov-
ernor in a judicial capscity, making a sale of
the property of Chancellier and 8t. Cyr, by ja-
dicial process, set out at length in the recwd.
and moat solemnly attestrd.
4. By tile evidence in the record, ahowiag
beyond doubt that there has been an uai-
versal acquiescence by the political authoritiia
of the district; the municipal counsel and offi
cers of the village, as well as the inhftliilanls
in alt these acts, testified by the quiet posts-
sion held under them from 1772, The documeat
of that year is not only to Ik considtrred as the
ancient muniment of the titles of the villagHs.
but as an authentic and conclusive recognitioa
of the local custom In relation to some import-
ant facta, Illustrating the local law of thi
place, when taken in connection with the tes-
timony of the witnesses.
In that solemn act there Is this claoae. 1*
serve to designate tbe various tracts of laa4
granted in the name of the king (of Spaia) ta
the inhabitants of this post of St. t«uia, as
well by title (deed) as by verbal consent, by
the chiefs who have governed thetn from thi
foundation (of the government) to this ■*-
ment." In alluding to acts done und^ ths
KOvemoT of the territory under France, la tUa
clause: "the latter to certify by hin aignatai*.
in hia aaid quality, and In ^rtue of the power
PMera IS.
IU8
SnOTBB V. Loou.
Mollded to him, thftt he had grunted, Bitber by
450*] title '[deed), or verball;, the above
mentioned luids In the nam* of hfa majeatf"
(the King of France).
Thii atteata the meaning of the word
"grant," under both govemmenta, to be In-
elusive of verbal onea, which were equally
vftlid aa thoee by deed; and aa the title pasaed
Iron the king to the people in thia way, eo
we find by the uncontradicted teatlmony of
•everal witneaaea, that U passed from one to
another in the aame way, without writing,
whan the land was of amall valae. It app^are,
also, (rum the evidence, that there was an offi-
eer in the village, c»lled by the inhabitants a
■jndick, and in the Spanish laws a regidore;
whose duty and authority were to see that the
eommoQ fences of the forty arpent lots '
kept in repair. He would direct then to be
Innpected, and If they were found oat of
pair, would direct the owner of the lot In front
of which it was defective to make the repairs;
if the owner waa on a jonmey, the syndick
would have the repairs made, and make the
owner pay hia share on his return; otherwise
he would give the land to another person, who
would make the share of the fence.
This was a regulation in villagea, by the au-
thority of the commandant and municipal
authorities, in conformity with the laws of
Spain (vide 10 Fetera, TEG, 731 ) ; it applied as
well to village property bb to the large granta
of the royal domain; and it appears by the
regulations of (^ReiltFy, Gsyoso, and Morales,
that from 1770 till the cession in 1803, it was
of universal application throughout Louisiana.
White, 20G to 2ie, passim.
Such were the laws, uaages and cuatoma of
Spain, In relation to the granta, transfers and
tenure of village property. There remains one
other rule which must be applied to thia case,
nnless the evidence In the present record, which
waa not in the former, may lead to a different
reault; we mean the opinion of this court, in
the case betwec'n the same partiea, claiming tbe
same property. Vide B Peters, 763, 767.
Before we consider the instructions on which
the plaintiff haa assigned his errors, the points
decided In that case will be taken In the order
of the learned Judge who delivered the opin-
ion of the court.
1. On the handwriting and tndentlty of Rene
Klersereau, who, as alleged, was one of the
witnesses of assistance to the deed of ITBl,
from H. M. Roubillar, his wife, to Louis Chan-
cellier, aa to which the court below bad reject-
er certain depositions which were assisned for
error, and the objection overruled for this
4B1*] reason: "The record Moes not show
thftt the judge waa culled t:pon to express any
opinion with respect to the legal effect and op-
eration of the deed, or that the plaintiff had
not the full benelit of Its being hts (Kierser-
eau's) deed. And, indeed, it would seem from
the course of the trial that it was so considered;
or, at all events, the contrary does not appear
from any question presented to the court on
the subject." 6 Petere, 768. Had the same
question been presented now as it was then,
w« should not have hesitated to have expressed
•a entire concurrence with that view; but as it
DOW comea up on a new state of facts, It de-
■ervea further eonsIderatloB, eapecially as a
• Ih ed.
iTn.
similar qnestlon
Gamacha, who
Both queatlons are so similar that tiiey may b*
taken t<^ther In two aapecta. 1. Aa qnea-
tlons of fact. 2. Of law.
1. It la admitted that Rane Kienerean waa
the owner of one of the lota in controversy,
as is apparent on the document of 1772, tc
which bis name is affixed as one of eleven In-
habitants, including the governor, Ihe politiiail
and municipal oflcers of the i-illage, who
could write their names, which, aceording to
evidence, contained two hundred and fifty per-
sons. Whether ha waa the same person who
was the witness to the deed from his wife, and
(as we shell assume) the grantor of the lot,
was a pure question of fact for the jury on the
whole evidence on that subject; so it was as to
the Identity of Gamache, as to whom there It
the following admission on tbe record: "It waa
also admitted that Joseph Gamache, (or whom
tbe Burvey of one of the tracts of land, of one
by forty arpents, was made, waa known as wsjl
by the name of Jean Baptists Oamache, had
of Baptists Gamache, as Joseph Gamache}"
Gamache, in the survey in the land book.
Batts X Gamache in hie deed to St. Cyr, and
Baptiste Gamache, in the margin of the survey.
Before the court could give an^ instruction
to tbe jury as to the Identity of either Klerser-
eau or Gamache, "they muat have been aatlt-
fled on that subject, that there was notbins fa
(tbe parol) evidence, or any fact which the Jury
could lawfully Infer therefrom," that they were
the fact, "the court must assume It to have bi
proved; for It la the exclusive province of tbe
jury to dedde what facts are proved by eon-
mony, as tending more or less to prove the fact
relied on. As *theso were matters [ * 4 S 1
with which the court could not interfere, the
right to the instruction asked must depend on
the opinion of the court, on s finding by the
jury in favor of the defendant, on any matter
which the evidence conduced to prove, giving
full credenee to the witness produced by him,
and discrediting those of the plaintiff. Ewing
V. Burnett, 11 Peters, 60, 81, 62; S. P.j The
United States v. Laub, 18S6, 12 Peters.
Z. In this case, we think that neither qn«o-
tion waa one of fact entirely; the manner in
which the deeds were executed, the possesaion
taken and held under them by Chancellier of
one, and St. Cyr of the other; tta notoriety to
the authoritiea, and the people of the village
with the nature of tbe possession, the eltuation
and state of the common field-lots, and thrir
cultivation within one common inclosure, reg-
ulated by a special police, with the other dr-
cumatances of the case (vide 11 Peters, B23);
incline us strongly to this conclusion. Thai
after this lapse of time, the legal presuraptiou
of the validity of both deeds would attach by
the maxim that in favor of long possession and
ancient appropriation, everything which was
done shall be. presumed to have been rightfully
done; and though It does not amtear to have
been done, the law will proaume toai whatever
7S iliS
412
SUPBEUI COUBT OP TBI UxmD STAttS.
waa necESBary has been done. 2 Fetera, 760,
Aod cases cited.
The next point decided in the former case,
#a* on an objection made by the defendnnt's
eounsd that the plaintiff bad not such a legal
title aa to sustain an ejectment; which waa
overruled (S Petera, 768, 769), and we think
fery properly, in accordance with tlie leading
case of Simmeg' Leaaee t. Irvine, 3 Dall, 425,
454, the autliority of which remains unquee-
tloned. It waa objected that the confirmation
by the board of commisaionera to Cboti
void, because the defendant was at the time
one of the board, and claimed the property by
a deed from Choteau before the confirmation;
it was overruled, because it did not appear that
he sat at the board at the time. lb. 76S. The
same objection haa been much pressed
with the additional reason that the defendant
waa also a judge of the Superior Court of the
territory; but as the confirmations In the record
show that he was not present, and we think
pea red
"From this statement of the case, according
to the plaintiff's own showine, there is a regu-
lar deduction of title or claim from the per-
eona for whom the lots were surveyed to the
458*] defendant, 'But it appears that these
persons, Kierscreau and Gamaebe, sold their
claim twice (Gamache one half); in the first
place to Louis Cliancellier, under whom tlie
^intiff claims; and in the second place to St,
Cyr, under whom the defendant claims. If
theae title papers were to be considered, inde-
pendent of the acts of Congress, and the pro-
ceeding of the com mission GTS, the plaintiff be-
ing pnor in point of time, would prevail so far
as depended upon the deduction of a paper
title, and Independent of the question of
possession.
"It becomes necessary, therefore, to inquire
how far the acts of Congress apply to and
affect any part of these title pnpcrs. The court
then, referring to the acts of 1805 and ISOT and
to the evidence, held that as there was no evi-
dence that Madame Chancellier had ever Sled
her claim, or the evidence thereof, pursuant to
the law, and the Instruction of the court com-
plained of was on the effect of the confirmation
under the law, the plaintiff could derive no
benefit from it (6 Peters, 772); which we think
waa the correct result of the then case. A dif-
ferent case is now presented on thia subject.
The plaintiff gave in evidence two opinions
of the recorder of land titles of St. Louis Coun-
ty, confirming to the representatives of Gam-
ache and Kiersereau the fort; arpent lot of
each, and directed each to be surveyed; but did
not offer the confirmations to Choteau by the
board of commissioners, which were given in
evidence by the defendant. The plaintiff
claimed under the former, the defendant un-
der the latter; that of tbe plaintiff will be first
considered.
By the Stb seo. of the Act of 1S12, 2 Story,
1260, the recorder of land titles was invested
with Uie aame powers, and enjoined to pertoroi
the same duties, as the board of commisaionen
(wUcb WM than dissolvedj, in relation to claims
which might be filed before the 1st DeetB-
bcr, 1812; and the claims which have beta
heretofore filed, hut not acted on by tbe eoa-
niiE^ioners, except that all his dccisiona shall
be subject to the revision of Congreits. He «•*
directed to report to the commissioner of the
land-office a list of all such claims, with tbc
substance of the evidence in suppurt tbemif,
his opinion, and such remarks as he may thisk
proper, to be laid before Congress at their next
session. By the Act of 1813. the time for fil-
ing claims was extended to 1st Januitry, 1S14
(2 Story. 1309, 1384. 1385), under which act*
the recorder made the confirmations relied <a.
by the plaintiff on the 1st November, ISIS,
wliiih was confirmed by the 2d sec. of the Act
of ISla. 3 Story. 1604. But these confinaa-
cunnot avail the plaintiff as a, claiioaat
under thsse or any other acta "of Con- [*454
I. for the following reasons: 1. That the
authority of the recorder of land titlos waa, by
the express terms of the acts of 1812 and 1813.
fined to those claims on which tbe board of
imissioners had not previously acted; frofs
which it follows that after the commisaianen
made a confirmation of a specific claim,
ction of the recorder ia either merely ea<
ive, and so inoperative; or if adverv,
y void, as an assumption and usurpation of
power in a case on which he had not jurisdk
tion, and his action must be a mere nuilil;.
Here the commissioners had decided on tit
identical claim in ISOO, 1810; Congresa had
made a general confirmation of all the clainu
of tbe then inhabitants of St. Jjoujs, of their
tie to the common field lots in 1812, when tfa,-
defvndant was an inhabitant thereof, aad in
actual possession of those in controversy; and
by the act it was provided that it ahould oot
affect any confirmed claims to the aame lanJa
Surveys were directed to be made, plota there
of made out, and transmittrd to the general
land-omce and recorder of land titles. 2 Storv-
1257, 1258. As the act directed no fiirthrV
iteps to be taken the title bec'ume complete.and
the recorder thenceforth ceased to have aaj
power over the confirmed lots, save to perfoni
the ministerial acts directed by law, as tbe or
dinary duties of bis ofSce. If Congresa could.
■' never did give him any authority to siiperriir
thcr the acts of the commissioners or tbe ess
rmations of the law.
2. Vic mnst, then, take the defendant as ear
holding the premises in controversy by a graat
from the United States, and as their granln.
itled to all the protection of the Inwa appro>
ute to the case. The unanswerable rra-oa-
; of this court in Green v. Liter, the priiKi~
s of law on which it is founded, with lh»
iiittcd authority with which it haa \xva le-
3 the n
reft.
ny other source for its support. 8 Cr. 3M.
'49. That a grant may be made by a law, a*
veil as a patent pursuant to a law, is undouM-
ed (6 Cr, 128) ; and a confirmation by a )■« i)
fully to all intents and purposes a grant, as
if it conlslncd in terms a (n'ant de novo. Tht
plaintiff, therefore, is brought within the two
^Bions of the laws; that by Madame Chaa-
r not having filed her claim within the-
time limited by law, she could not aet up aav
claim under any act of Congresa, or be perail-
ted to give any evidence thereof in any eowW
Peters IS.
1K38
BnOTREt T. Lscu.
TInit ■ piTson having ■ grant from ths Unit-
StatPB, under the coiiJirination of tlie coni-
mfesioTiers. and the Act of 1612. The plaintiff
has eoutendi^d that the Act of 1731 haa released
-ISA*] him *from theae proviaionB, and all
pensKiea imposed by anj act of Gongreas. Thia
net waa a aupplement to the Act of Confirma-
tion of June, I81B (2 Storj, 1267, 12S8), hj the
ftrat lection of which the titles of the inhabit-
ants were conflnnfd according to their private
right or rights, tit common thereto, as has been
atatpd before. By the 2d section, all town, out
and common field lota, inc1iid(-d in the aurveja,
therein directed, not rightfully owned or claimed
by any individual or held in common, be-
iongitig to the towns or villages, or reaerved by
the President for military piirpoies, were re-
served to the towns and villages for the sup-
port of echoota. In order to astrertain what
Iota were owned or claimed by individuala, the
recorder waa by the Sth section empowered to
Mt on claims flled before let December, 1813,
aa baa been aeen, and those before Hied and un-
decided. The time for presenting iuch
claiinB was farttipr enlarged by the acta of
April J, 1B14 (2 Story, UIO, H2B, 1430}; and
irertain confirmations were made by Congress
in those acta. Under thia authority the record-
er made his report, which appeara in the 3d
vol. State Papera, Public Landa, p. 314. His
proceedings were confirmed by the 2d lection
of the Act of April, 181S (3 Story. 1S04, IGOG).
Then comes the Act of 1831, the first section of
which enaoted, "That the United States do re-
linquish to the inhabitanta of St. Louia, etc.,
all their ri(;ht, title and interest, to the town
or village lots, out lota, common field-lots, and
commons in, adjoining, or belonging to the towna
and villages, con Armed to them, respectively,
by thn Act of 1812; to be held by the inhabit-
lints in full property, according to their sever-
*l righta therrin, to be regulated or disposed of
for the use of the inhabitanta, according to the
laws of Missouri." By the second section, the
United States relinquish their right, title,
and Interest, in and to the town, out, and com-
mon field lota in the State of Misaouri, reaerved
for schools by the Act of 1812; and provided
that the same shall be sold or disposed of, or
regulated for the same purposes, in such mati-
ficr aa may be directed by the Legislature of the
State. 4 Story, 2220, It ia moat obvtoua that
(hia act, ao far from opening the confirmation
of the eommissioners, in 1809, ISIO, and of the
Act of 1812, or relieving the plainfilTs from the
rfTect thereof, ia a new conSrmatioa of the
private and common righta of the inhabit-
anta, and cannot aid the plaintiff; the pur-
poscn of this case do not require us to give
it any further consideration. For these rea.
eons, we feci constrained to come to the
same conclusion on this record which the court
did on the former; the plaintiff can neither have
any benefit from any act of Congress, or give
46C*] 'evidence of his claim agninst the de-
fendant, claiming by grant from the United
Statea.
The next position of the court In the former
raae waa that Madame Chancelller having slept
upon her claim till 1618. must be considered aa
hadng abandoned it; to which we not only en-
tiraly aaacnt, aa this point appeared then, but
u atill clearer uow by the naw erideoce. It was
• L. «d.
tMtlfled at the trial that Madame Cbaneelll«
had made a verbal aale of the two lota to St.
Cyr; the credibility of the witness and the
weight of his teatimony were matters exclusive-
ly tor the jury, and we cannot say that they
did not find for the defendant on that ground;
it waa comprtent evidence, conducing to prova
that fact; and if the jury found the fact ac-
cordingly, we liave only to consider its conse-
quences. Assuming, as we muat, that the fact
of such aale ia established, it is immaterial
whether such sale passed the title or not-, it was,
when taken in connection with the other eir-
cumstances of the case, powerful, if not con-
clusive evidence, that she bad abandoned as
well the possession aa the right to the lots in
controversy, without the intention to reclaim
either; that St. Cyr took and held posseaaion in
good faith, and in good faith purchased from
Kieraereau and Gamache, which he might law-
fully do to complete his title. If it was a fact,
then the continued possession of St, Cyr and
the defendant entitled the latter to oil the ben-
efit of the Spanish law of prescriplion, wheth-
er of thirty, twenty, or ten years, according to
the rules laid down, as taken from the Itecopi-
lacion and Partidas (in White, 68, W). The
destruction of the common fence of the com-
mon field Iota in 1798, )Tn9, was a sufficient ex-
euae for St. Cyr or Choteau not continuing the
actual possession and cultivation of their lota,
until the other owners would join in rebuild
ing the fence. The change of government ia
1604, with the consequent uncertainty of titles,
was a reason for leaving the lots open, which
Slight not to be overlooked; that there waa no
acUial or intended atmndonment by St, Cyr.
might well have been found by the jury, from
the judicial sate to Choteau in 1801 ; or by him,
from the sale to the defendant in IB08, On
these facts, the laws of Spain would consider
the possrssion as continued, from 1708 to 1808;
nd if the opinions of this court have any b
ing .
I the •
ment, or legal presumption of a rightful title,
those to be found in Rrecn v. Liter, H Or. 244,
etc,; Barr v. Grats, 4 Wh, 2U. 233; Pr. Soc.
V. Pawlet, 4 Peters, 480, 504, fKW; Clark v. Court.
ney, S Peters, 354. S.-^S; Barclay v. Howell, fl
Peters, 613; The 'United States v. Ar- [•457
redondo, lb. 743; Ellicott v. Pearl, 10 Peters,
442; Ewing v. Bernet, II Peters, 61, 63; Unit-
ed States T. Mitchell, 9 Peters, 734, 735, 760;
New Orleans t. The United States, 10 Peters
718, 719, etc, are most full and conclusive.
The plaintilTs have relied much on the alle-
gation that St, Cyr took possession as the ten-
ant of Madame Chancelller, or her husband
Beauchamp, in 1766, or under an agreement
that he should keep up the fence while he oc-
cupied the lots. The only evidence of this fact
was by her in her testimony, in which ahe
stated it in general terma; on her cross-exami-
nation ahe stated that Beauchamp had told her
so; whereupon the court directed the jury to
reject her evidence. Whether the jury did ao
or not, ia not material ; they were not bound to
credit her; they mipht not believe her, and we
cannot presume that they did, or hold that they
ought. 11 Petera, 60. SI.
There ia another fact in evidence which leads
to the same results. It waa teatifled at the trial
that St. Qyr waa put into poaaeaaion by the
417
SuraxKi Oooai or tbb Vwam Bit.it
■jndle Burauuit to the village reflations, be-
wnM tb« fenca bad not beui kept up after the
death of Chaoeellier. The jury were tbs judges
of this fact; and from their flnding we must
pnauBie that it waa proved, and hold the taw
to be accordingly, that no taint of had faith
«Bii attach to the conduct of St. Cjt, hj any
notice he may have had of the title or claim of
Madame Chancellier; it was eonsiatent with her
title that ahe afaould hold it by the established
village tenure, subject to the munidpaJ regula-
tions, which were authorized by the laws, u>-
Kges, and cuetoms of the couotrj and place. It
is evident that the taw which save a title In fee
to ■ village lot, bj a continued residence of four
yean In a house, neither did or could apply to
a common fleld-lot, used only for cultivation
or paaturaga, the owner of which could derive
no advanta^ from his mere right of property,
If the adjoining owners did n(^ keep the com-
mon fence in repair, or pay the syndic for do-
ing it. That such regulations were authorized
by the written taw of 8pain, in royal orders,
and by the unwritten law of use, cuatom and
fnero, has been seen, and that such usages
custoins were valid; that local usage and
tom, in relation to municipal regulations,
not the law of the villages only, but of the
tropolis of the province, and equally binding
U the local law, is clearly established by the
Able and unanimous opinion of this court in
New Orleans v. The United State- 10 PeUra,
712, Tie, T2i. 730, 73?
Another principle laid down by the court In
45B*] the former case 'meets our entire ap-
probation— "that the justice and law of the
ease, growing out of aueb a length of posses-
■Ion, arc so manifestly with the judgment in
the court below, if we lootc at the whole evi-
dence on the record, that we fe«l disposed to
give the most favorable inteipretations to the
Instructions of the court." 6 Peters, TT2.
There remains but one other point on which
the court gave their opinion in the former case,
which was then made by the plaintiff's counsel
In their argument, and has been strongly urged
in this case — that the conflrmatlon of the oom-
missioners inured to plaintilTs use.
The reasons assigned tor this position are
that the only object of the acts of Congress be-
ing to ascertain what property had been acquired
by individuals before the cession, the commis-
sioners were to act only on original claims,
and by conflrming the right of the original own-
er, to leave the derivative right under him en-
tirely open between adverse claimants. The court
were before of opinion that this view of the case
eould not be sustained, and we are now of opin-
ion that it is inconsistent with all the acts of
Congress, which have organized boards of com-
mtosWera for adjusting land titles, the proceed-
ings of the board, and the laws which have
confirmed them.
By these laws it is provided that the original
grant shall be recorded, but all other oonvey-
anees and deeds shall be deposited with the
register or recorder of deeds, to be by them laid
before the commissioners. Vide 2 Story, MT,
MS. The same provision le contained in the
numerous laws on this subject, which are no-
Uced and reviewed in the opinions of this court
{» Wheat, see t« M3; 8 Peters, 718, etc.; 7
fttwa, 88. H, eto), ahowing that tliia dlstine-
«1M
{ tion between the erldenee of orlglBal and dcriv.
atlve lights to land haa been uniformly eb-
served by Congress and the court. Tbe cm-
firmations of the commissioners in the preaoit
case are to the person who made and proved
his claim before them, and from the reports of
formly done; and the acts of Congreas confim-
ing them have been in general terms of refer-
ence to such reports. Vide 2 Story, 1410, 1430;
S Story, ie04. It would defeat the whole ob^
ject of these laws, and introduce infinite
public mischief, were we to decide that the
conRrmatione by the commiRHi oners and Ctm-
gress, made expressly to those who claim by
derivative titles, did not operate to their owa
It has been seen that the conflnnatlon of titles
to village loU in Missouri (2 Story, 1257, 1258)
is. In express terms, "to the inhabitants of the
•village,'' according to their "several [*4&t
right or rights in common thereto." So in the
Act of IS31, the lots confirmed by the Act of
1612 are "to be held by tbe inhabltanU of the
said towns and villages in full propertjr, ac-
cording to their several rights therein.' These
laws necesaarily admit of but one construction;
and if we regard their terms, tbe object mani-
fest on their face, and the effects evidently in-
tended by Congress, the position of the plain-
tiff's counsel is utterly untenable.
We now proceed to consider the iBstnietioss
asked by the plaintiff and refused by the ctnirt,
as well SB those given as modifications of those
asked by plaint!^ and tbose given by the eourt
on the prayer of the defendant.
Plaintiff's instructions;
1. That the sale, partition, and final dcvree
relative to the estate of Chancettier, established
the title of his wife to the premises in contro-
vcra^, which the court refused ; but iDstmcted
the fixrj that they passed the title thereto, such
as it was, vested in Chaneetlier, to her; to
which we think there can be no well foundrd
objection, as no law was produced by whkb
such a decree could operate as a new grant of
a right of property to the vendee. If noue ex-
isted in the person as tvhose estate it was so soM.
it was a transfer of an existing title, and not in
Its nature or effect an original grant.
2. That independent of the title of Kier«erMn
and Gamache, there was sufHcient evidence be-
fore the jury to establish a title by prescriplioa
in Chanceltier and his heirs; wbirh instruction
could not be given without usurping tbe prov-
ince of the jury to decide on the sufGciency of
the evidence. 0 Peters, 445. No lostruclio*
was asked as to its competency; and tba one
asked, was, therefore, properly refused.
3. That St. Cyr took no title by prescriptioa.
This was a mixed question of law and fact: to
have ^ven such instruction would have bcea
an assumption by the court that there mta no
such fact legally inferable from the evidinte,
which would have brought St. Cyr withla the
law of prescription. There was not only evi-
dence of such facts given to the jury, but fros
their finding, we must take the parol anJe by
Madame Chaneetlier to him, the usage and ciu-
tom of the village, to authorize the ayndic te
put him in possession; and that he was, puraa-
' therato, so put into poaaeasion, to be f»4>
~ - It.
which woald glTB to Ma poMcuion th* pratae-
tion of preBcription.
<*0*] *4. If the jury are of opinfoa that St.
Cyr had notice of tue aale to Madame Chancel-
lier, his poraesiion could not be adrerM, or tD
estate in him by prescriptian. If St. C^ pur-
chaaed from her, or wai put into poseesaion of
the lots on account of her default in not repair-
ing the fence, a notice of her claim was a mat.
ter of course, and could not impair his right bj
poBacsEion, or the lubaequent purcbaso from
Kienicreau and Gamache.
S. That it St. Cyr wai a purchaser at the sale
of CSiancellier'a eatate, or put his name or mark
BB anch on the margin thereof, theae facta are
prima fade evidence that he had notice of ber
title; to which the court answered that thig naa
proper evidence for the Jury to consider in de-
ciding whether he had notice, and refused the
inntruction as asked, which we think waa cor-
rect. But on the facta referred to under the
third instruction, notice waa wholly immateri-
al, aa it could not taint hla purchase with fraud.
a. That the deed from Kiersereau to St. Cyr
in 1793, who had before conveyed to Chancel-
Her, by deed on record, conveyed nothing to
him, and that the penalties of the crime of
estellionato, by the Spanlah law, were thereby
incurred. 7. The aame objection ia made to
the deed to St. Cyr from Gamache; and 8.
That the d^ed purported to be a deed of Joseph,
and waa signed Katia Gamache X his mark.
The foregoing facts fully justify the court in
their refusing such inatruction as to the elTect
of both deeds; and as to the deed from Cam-
ache, the only question was one of identity and
fact for the jury, which reaaons equally apply
to the Bth, eth and lOtfa instructions.
11. That the sale by the syndic of St. Cyr'a
property was no evidence of hia *itle to the lota,
or that such sale was made. The first part of
this instruction waa given, and properly, for the
reaaona given in the flrat instruction; the latter
part waa properly refused, becauae the proceed-
ing WIS a judicial one of record, which is, per
Be, evidence of the facta set forth, and cannot
now be called in question. 8 Peters, SOS,
310.
12, 13 and 10. These inatructiona depend on
the facts of the case, and could not have been
given without interfering with the province of
the jury; the court charged favorahly to the
Silaintiff in part of the 12th and 16th, that de-
endant had shown no title or bar to the plain-
tiff under the act of limitation.
14, ISandlT. These instructions were founded
461*) on the official 'situation of the defend-
ant before alluded to, and were properly refused
under the decision of the court in the former
The 18th instmctinn Is founded on the Act
of 1831, before noticed, which, for the reasons
heretofore given, could not avail the plaintiff;
and he eajinot complain of the refusal of the
eouH to give it aa asked; aa they did inatruct
the jury that bo penal effect resulted from any
•ct of Congress which hara or stands in the way
of plaintiff's recovery, though it would have
been good ground of an exception by the de-
fmdaot had a verdict been found against him.
The IDth, SOth and 2lBt Instructions depend-
ed OB the court assuming that the facta relied
on by the plaintiff were MtabUahed by th« ari-
» Ifa ad.
T. Loo&a. 4N
deuce, and taking from the Jury the rl^t of
deciding what facta were proved; the eourt
wen therefore right in refusing to instruct aa
requested. Tbe instructions asked by the de-
fendant and given by the court were founded
on the evidence In the cause relating to thepos-
aeision of St. Cyr and those claiming under
and the consequent right of the defendant
, the evidence, especially with the quali-
Bcations laid down by the court as to the na-
ture of such possession, and of the title under
which it waa held, aa appeara in their further
inetructlon to the jury, "That tbe poaaeaaion
mentioned must be an open and notorious poa-
aeaaion, and that if they should find such pos-
aeasioQ, it gave title under, and according to
the Spanish or civil law, which waa in force in
Upper Louisiana at the date of the treaty by
which Louisiana was acquired by the United
States, and rerosined in force and unabrogated
by any law of the district of Louisiana or of
Missouri, down to a period as late as October,
181B. That the possession of ten or thirty
years would ^ve a title, tbe one period or the
other, according to tbe circumstance a under
which the possession was obtained. That the
ten years' possession which would give a pre-
scriptive title, must be a possession under a
purchase made in good faith, and where the
Eurc baser believed that tbe person of whom
e purchased had a good title, and where the
owner of the title prescribed against resided in
the same country during the said ten years.
That If the jury believe from the evidence that
the possession of St. Cyr, under whom the de-
fendant claims, was obtained under a purcliase
made by him in good faith, and under the be-
lief that the persons of whom he purchased had
a good title, and thattheposaeasionof Choteau,
under whom the defendant claima, waa obtained
in like manner and 'under a purciiase [*48a
made with the like belief, and that they had
the possession mentioned in the second instruc-
tion asked for on the part of the defendant, and
that the said Marie Louise was in the country
during the said ten years, the plaintiff cannot
And further instructed the Jury, In relation
to the possession mentioned In the third in-
struction asked for on the part of the defend-
ant, "that to make the possession there men-
tioned a bar to the plaintifTs recovery In the
present action, the possession of the defendant
must have been obtained under a purchase,
where he believed Ihat the person of whom he
purcliaaed had a good title, and that the said
Marie Louise was in the country during the
said ten years; which, unless tbe jury heUeve
they cannot Snd for the defendant upon such
possession.
Theae rules appear to be in confonnity with
the laws of Spain, as extracted from the boobs
of estabtiabed authority in Mr. White's Com-
pilation, p. SS to 71; and this court has never
laid down stricter or perhaps as strict ones, on
questions of prescription which they have de-
cided according to the rules of the c"—
appeara to have been taken, and cannot, 1
lore, be ooiiiidaredi they wen made the sub-
11S7
SUTBEME OOUKT OT TKI UNIIB BUTI
Jeet of a motion for ■ new trial, end ue not
cognisable in error.
The judgment of the court below ii conse-
queotly affirmed with coits.
Mr. JuBtiee Cation:
The plaintiff moved the court to Inatruct the
jur; as [ollowa:
I. That there ii e-ridence before the ]urj of
the poeseBBion and title of Rene Kersereau and
Jno. B. Gnmache, as absolute owners and pro-
prietors of the two forty arpent lota deacnbed
in the declaration.
That there is evidence before the jurf of the
pOMcseion and title of Louii Chancelller, as
owner and proprietor of the two forty arpent
lota in question, as aBsignee of said Rene Kier-
sereau and said J. B. Gamache, respectively.
That there is evidence of the actual poases-
•loB, after the death oF said Louis Chancellier,
t^ hie widow, said Marie Ijouise, of said two
forty arpent lots, claiming the Bame bb absolute
owner toereof.
That the plaintiff has established his title as
4<3*] aBBignee of Mane 'Louise Chancellier,
to the estate and intcrrBt vested in her and her
heirs, in and to the two forty arpenta in ques-
tion.
That the deed given in evidence by plaintiff
from Auguste (iamache to Basil Laroquc and
Marie Louiae, bis wife, inures to the benefit of
the plaintiff. '
That if the jury shall be of opinion, from the
evidence, that Hjacinth St. Cj-r originally ob-
tained possession of the lots in question as ten-
ant of Marie I<ouiae, the widow of Louia Chan-
cellier, or by virtus of a permission to occupy
and cultivate, given to said St. Cyr by the syn-
dic of the village of St. Louis, the posaeasion
of St. Cyr BO obtained shall be taken by the
jury as in law the possession of said Marie
Louiae.
That the confirmations of the board of com-
tniasioncrs on Z3d July, 1810, of which the de-
fendant was a member, could at moat only op-
erate aa a quitclaim by the United States in Fa-
vor of the original grantees, and could not de-
cide the question of derivative title under said
original i;ranteea.
That the mere Fact of the land described in
the confirmation to Choteau. and the land de-
•cribed in the confirmation Kiren in evidence
by the plaintiff, and the declaration, being
identical, does not entitle the deFendant to a
verdict tn hia favor.
That no forfeiture or di squall ficatton has ac-
crued agsinst Madame Mane I»oise, the wid-
ow of Louis Chancellier, or again at her assigns,
under any act of Congress; whereby she or
they are barred from asserting their legal and
equitable rights to the lots in question before
this court,
Wbich instructions were given by the court.
Instructions asked by the plaintiff, and part-
ly refused by the court.
1st. That the sale and partition, and final de-
cree, of which duly certified copies have been
given in evidence by the plaintiff, establish the
title of the widow oF Louis Chanceltier, Mad-
ame Marie Louise nesrhamps, and her heira,
to the land deseribed in said sale and partition,
as sold and allotted to her; part of which said
land rooriats of tba two arpenta bf forty In the
tlBS
declaration describ«d, botinded by Bfaoa on tk*
-Tte side, and by J. B. Bequette on tbe other.
2d. That independently of the title of Bens
Kicrsereau and J. B. Gamache, there would bt
sufficient evidence before the jury to cBtablisb
a title by prescription in Louis Qiancellier and
his heirs, and Marie Louise, hia widow, tad
her heirs, to the two forty arpents described ia
the declaration.
d. That Hyacinth St. Cyr tooV no {Mti
title by prescription in and to said lota.
4th. That if the jury shall be oF opinion that
Hyacinth St. Cyr hisd notice oF tbe sale of said
lots to Marie Louise, by the proper S[»ni*li
authority, as given in evidence by the plaintiff,
the possession oF said Hyacinth St. Cyr of said
arpents was not such as could be adverse to
Marie Louise, or could create an estate by pre-
scription in Favor of said St. Cyr.
6th, That if the jury shall be of opinio!
from the evidence that St. Cyr was a purchaser
at the public sale of the property of Louis
Chancelller, or signed his name, or made Us
mark as purchaser on the margin of said sale;
these facts are prima facie evidence that said
St. Cyr had notice of tbe title of said Marie
Louise, as purchaser at said sale oF the lota
lerein dpflcribed, as sold to her.
6th. That the deeds given in evidence bj de-
fendant to Rene Kiersereau, bearing date the
23d of October, 17B3, conveyed nothing to Sl-
Cyr; being made by a person out of possesnon.
and whose conveyance for tbe same land to
another person, to Chancellier, was upon record.
and who therefore was guilty of tbe crioie of
Gstellionato, punishable by fine and bajiisb
ment, by the Spanish law then in force.
7th. That the deed given in evidence by de
fendant from Joseph Gamache to Hyacintb St
Cyr, dated 23d October, 1793, is void on tin
ground of Estellionato in Batis Gamacbe, anp
posing that he made the deed; 2d, on tlir
ground oF uncertainty in the deed itself, in tUs.
that it purports to be a deed of Joseph Ga-
mache, and Is signed Batis Gamacbe X hit
said forty arpent
IOCS in question.
0th. That there Is no evidence oF possrsaioB
whatever, adverse or otherwise, by August*
Choteau, oF said two forty arpent Iota, or aay
part thereof.
10th. That if tbe jury shall be of opinia
from the eridence before them that the said
Auguste Choteau had notice of tbe public nil
of said lots to Madame Marie Louiae Cbanesl-
lier, his possesaion or claim to said lotii under
Hyacinth St. Cyr ia fraudulent and void aa
against said Marie Louise and her heir? and aa-
11th. That the certified copy of the proreed-
ings and sale by the syndic, in tfa* matter of
Hyacinth St. Cyr, a tiankrupt, ia not cvidean
either of St. Cyr's title to either of the lots ia
question, or that 'same were sold by ['4»i
said syndic to said Auguste Choteau, aa part «l
said St. Cyr'i property.
12th. That the defendant has shown no titir
by prescription, under the Spanish or dril
law, or by the statutes of limiution (in bar of
plaintiff), under the Anglo Ajnerican lava, t*
ths lota in quaatlon. _
13th. Tlut th« title of th* defendKDt, u h-
and wife, to Lucas, of the lots In quest!
dated nth Januar;, IBOS, ia Toid for fraud; if,
In opinion of jury, it was a aale and conveyance
to Lueaa of a claim and intereit pending be-
fore (aid Lucas himself for adjudication.
ISth. That if, in the opinion of the Jury, the
elidm was pending before Lucas at eommis-
■loner when he Ixiught it, the adjudication or
eonfirmation of it on the 23d Julj, ISIO, bj the
board of commiuioners, of which Lucas waa
a member, U fraudulent and void at law and in
"•?&,
1. That neither the statute of limitations
_.r the Spanish law of prescription can avail
tba defendant Lucas, independently of the pos-
Muion of St. CjT and Choteau.
ITth. That the orders of survey pven in ev-
idence b; the defendant, and made bj himeslf
and his two colleague* in favor of August e
CAiot«au, bearing date June 10th, 1811, wan
fraudulent and void; if the jurj Bhall be of
opinion from the evidence that the claims
tnerun ordered to be surveyed had been sold
to said defendant fa; said Choteau, previous to
Um date of said order; and while said claims
wan pending for adjudication before said de-
faidant, as meml>er of the board of commis-
rionera in said order mentioned.
ISth. That if any penal etfect resulted from
Mijr act of Congress to Madame Chancellier and
her aaaif^ns, or to the leral representatives of
Swu Kiersereau and J, B. Gajnachs, the Act
of Congress of January, 1831, entitled, "An
Act further supplemental to the act, enlitled
■■ act making further provisions for settling
tha claims to lands in the territory of Missouri,
pcasod the thirteenth day of June, one thou-
aand eight hundred and twelve," remits the
parties to their original and equitable rights
■■d titlea, as if no such penal act had ever
n in force.
part of the two forty arpent lots in queati
4<6*] situated *west of Seventh Street, in
St. Louis, and all the lots east of Seventh
■fareet, according to tha admisdons of defendant
sta abova.
80th. That in this ease there is no law or bind-
ing ordinance ol the Spanish govemaiciit, by
which Madame Chancellier and those claiming
nnder her could be deprived, according to the
■tat« of the evidence in this case, of whatever
title sbe acquired to the land in question, un-
der the purenaae mada of it by her as the prop-
MtJ' (rf ner huiband.
£Ist. That if the jury believes from the evi-
donoe that SL pyr ceased to cultivate and be in
Mctnal poaseasion of the premises In dispute
from 170T or ITDS, prescription ceased to run
tn Us favor, and that of those who elaJni un-
dflr him from that time.
Which InitniGtiona the court refused to give,
but inatructed the jury In relation to the mat-
tar rafarred to In the flrat instruction above re-
) given in tfUmo* t^ Um plaintiff.
T. Lucaa. ms
did paas the title of Loda ChancelUar, ine<|.
tioned in said proceedings of sale, such as it
was at the time of hia death, or such as It waa
in bis heirs at the time of said sale to Madame
Marie Louise, his widow, mentioned In said
proceedings, and her heirs, to the lands de.
scribed in said record of sale and partition, aa
sold and allotted to her.
be of opinion that St. Cyr, under whom tba
defendant claims, was a purchaser at aald pub-
lic sale of the property of said Louia ciancal-
Her, or did sign his name or make his marlc
on the margin of the record of said sale; these
facts, or either of them, is evidence proper for
them to consider in ascertaining whether said
St. Cyr had notice of the said title of said Marie
Louise, as purchaser at the said sate of the Iota
described in the record thereof aa sold to her."
And further instructed the jury, in relation
to the matters referred to In the eleventh in-
stniction sbove r<'fused, "that the certified
copy of the procePdiiigs and sale by the syndic
of the property and estate of St. Cyr as a bank-
rupt, was not evidence of a title to said St. Cyr
to the lots in (Question, or either of them."
And further instructed the jury in relation
to the matters referred to in the twelfth in-
struction above refused, and to the sLatutea of
limitation referred to in that refused instruction,
"that the defendant 'had shown no ti- [*4aT
tie to tlic lots in question, nor any bar to tha
plaintiff's recovery under any statute or stat-
utes of limitation."
And further instructed the jury, In relation
to the matters referred to in the sixteenth in-
struction above refused, "that the statute of
limitations could not avail the defendant, Lu-
cas, either with or independent of the posses-
sion of St. Cyr."
And further instructed the jury, in relaUon
to the matters referred to in the eighteenth in-
struction above refused, "that although the
Act of Confess of the 31st of January, 1831,
referred to in said refused instruction last men.
tioned, docs not remit the penslties as In that
refused instruction is supposed by the plaintiff;
yet, that in fact, no penal effect results from
any act of Congress which bars or stands in
the way of plalntiff^s recovery in the present
action; or which in any manner affects his title
or evidence of title, under, or to be derived
from scjd acts, or any of them, under the ad-
missions of the parties in the present case."
Tlia first instruction refused could not be
given In the form It waa aaked, because it
would have concluded the cause as to fact and
law. The aiplanations given by the court
The second and third asked the court to pro-
nounce on tha facta.
The fourth asked the court to declare that
if St. Cyr had notice of Madame Chancellier^
purchase, his title could not be confirmed by
prescription. St. Cyr, and tlioae claiming un-
der him, could have prescribed notwithstand-
point, the charge of the district judge, in re-
sponse to the instructions asked by the defend-
ant, is substantially accumta.
Itkt
SUPIEIIK COUBT or TUB Unitd Biatw.
Tb« expUnttioii of the flfth Jnttruetlon asknl
la Ug^]}' favorablfl to the plaintllT.
The Riitb asked the court to inatruct the
Jury th»t Kiersereau wm not in poBBesBiOD
when he made the deed, and therefore it wm
void. If St. Cfr y/BM in lawful poiseuion '
hlmoelf, DO forfeiture could follow bj the
reyance to him; and this depi^nded on the fact
whether St. Cyr was lawfully in posseBsion.
How the civil law waa In 1793 in cases of con-
vevances, where the lands were claimed and
holden in actual possession adversely to the
grantor and grantee at the time the deed was
made is immaterial, and is not decided.
The seventh, eighth and ninth instructions
asked, propose to refer to the court for de
dsion, questions of fact, pertaining to th
jury.
4«8'] 'The tenth assumes that Choteau'
possession was void, it he had notice of the sale
to Madame Chancel lie r. This by no means
follows. He might have possessed in good
faith, notwithstanding of which the Jury were
to judge. But if the poesession waa in bad
faith, still its continuance for thirty years by
Choteau and those from whom he derived it,
and the subsequent eonti nuance thereof by
Lucas, would have autliorixed the prescription.
The eleventh and twelfth instructions asked
were given; and the thirteenth asked the court
to charge on the fact, and to declare to the ju-
ry there was fraud; a principal matter they
were called on to try.
The fourteenth, fifteenth and seventeenth in-
atructions are the same that were in the cause
previously before this court, when it was de-
cided that LucKG could purchase under the cir-
cumstances indicated. The point is not deemed
<^n to investigation; such is the opinion of my
brethren who decided that cause, and with
which I concur.
The sixteenth asks a charge on the fact how
Lucas held possession, and the length of its
continuance, and was properly refused.
The eiehteenth was correctly explained by
the District Court,
The nineteenth proposes. In effect, that the
cause be decided by the court. Had the in-
struction been given, it would have withdrawn
from the jury the determination of the facts.
To the twentieth, it may be answered that
by the laws of Spain, Madame Chancellier's ti-
tle might have been prescribed against.
The twenty-first is correctly answered by the
District Court. The judge said to the jury,
"That if they should find from the evidence
that said St. Cyr took possession, or was in
possession of the lands in controversy, or any
of them, under said Marie Louise, or as her
tenant, his possession so taken or held would
be the possession of the said Marie Louise, and
would not be a possession In St. Cyr, available
by him or those claiming under him, under the
law of prescription mpntioned. But that If
the jitTj should be of opinion that said St. Cyr
came to the possession of the land in contro-
versy not as the. tenant of the said Marie
Louise, or under her, but under a claim and
titia adverse to her, such adverse claim and
posaeasion would constitute a possession npon
whkh a perscription hy the Spanish or civil
law referred to and then in force would begin
to run In favor of Um and thos* alidiBlRg ud-
>1W
der him, if auefa poaseaajon waa aetnal, ii|iia.
and notorious) and that such possearion ao
commenced 'would constitute and ["«••
preserve to St. Cyr, his heirs or assigns, a pos-
session available under the law of preacriptiea
referred to; notwithstanding aaid St. C^r or
those deriving title from him, should le*«a
the actual possession or cease to occupy and
cultivate, if that abandonment of the actual
possession, occupancy, or cultivation waa with
the intention to return, and without any men-
tal abandonment of the posaession."
Instructions asked by defendant, and givea
by the court:
1st. "That if the jury find from tha evi-
dence that Hyacinth St. Cyr and those law-
fully claiming under him have poaacased tlie
two arpenta by forty, surveyed for Gamaeha
and Kieraereau, without interruption, and with
claim of title for thirty years, consecutively,
prior to October, IBIS, the plaintiff ia not en-
titled to recover in this action.
2d. "If the jury find from the evidesea
that Hyacinth St. Cyr and those lawfully
claiming under him possessed the two lota in
the declaration mentioned, for ten yeara,
consecutively, prior to, and until the 23d day
of July, 1810, and the lands confirmed ta
Augusts Choteau on that day, are the same
lands in the declaration mentioned, the plaintiff
) thia
'If the jury find from the evidence that
the defendant posaesscKl the lota of land in tbc
declaration mentioned for ten years, consecu-
tively, prior to the first of October, ISIS, the
plaintilT cannot recover in this action."
Which instructions thecourt gave to the jury,
with the further inatruction: "That the posses-
sion mentioned must be an open and notorious
possession; and that if they should find aurh
pDsapssion. it gave title under, and according
to the Spanish or civil law. which waa in force
in Upper Louisiana at the date of the treaty by
whiih Louisiana was acQuired by the United
States; and remained In force and unabrogated
by any law of the district of Louisiana or of
Missouri, down to a period as late as October.
IS18. That the possession of ten or thirty
yeara would giv« a title, the one period or the
other according to the circumstances under
which the poBsession was obtained. That the
ten years' possession which would give a pre-
scriptive title, must be a posaession under a
purchase made In good faith; and where the
purchaser believed that the penon of whom he
purchased had a good title, and where the
of the title prescribed against resided in
..._ __me country during the said ten yeat*.
That if the jury briieve from the evidence tlut
the possession of St. Cyr, 'under whom [*41*
the defendant claims, was obtained uoder a
purchase made hy him in good faith, and nn-
der the belief that the penons of whom he
purchaaed had a good title; and that the poa.
session of Choteau, under whom the defendant
claims, wss obtained in like manner and nnder
a purchase made with the like belief; and that
they had the possession mentioned In the
second instruction aaked for on the part of tite
frndant; and that the said Maria Louiae wna
in the country during the said ten yenra, tha
plaintiff cannot recover in this action."
And further Inatnieted the jury, in r«latia«
Powra la.
l83ft
Ex-pABTK FoulTnev t. Tbc Cm or Lafitrti R ai.
to t)i« poueision mentioned in llie tbird fnatruc-
tion Asked for cm the part of the defendant,
"thkt to make the poSBessioii there mentioned
■ bar to the plaintiiTs recovery in the preaent
kction, the posaession of the defendant must
have been obtained und^r a purchase, vbere he
believed that the persona of whom he purchased
hod a good title, and that the said Marie Louise
n-a* In the country during the said ten years;
nhich, unleas the jury Delieve, they cannot
find for the defendnnt upon luch poaaesgion."
Tlie foregoing insiructions given for the de-
fendant, with tbeexplanatioas.aresubatantial-
ly correct.
Tliia Is the whole case, fn the affirmance of
the judgment in which I concur, for the
rcnsona here atated. But there are various
tirindples introdui'cd into the preceding opin-
ion, the accuracy of which I very much doubt.
Futhermore, it is apprehended they are foreign
to the case preseiiU'il by the record, and it is
feared their Snt rod action into it may lend them
& sanction they do not dcserv*, and emltarrasa
tlic inferior courts, and this court, in future,
in the numerous controveraies row depending,
and likely to arise on tlic titles of Florida,
Louisiana, Missouri, Arkansas and Wisconsin,
involving the application and construction of
the laws of Fi-atioc and Spain, aud hence tbis
separate opinion has been filed.
Kir. Justice W«yne slated that he dissented
from thi^ opinion of the court delivered by Mr.
Jui^lice Buldnin. He was authorized to say
that Mr. Justice M'Kinley concurred with bim
The title to the tote was in Chancellier at the
time of his dcalh. St. Cyr obtained a title by
fraud, and by fraud he continued Id posses-
Cboteaii's clnim It not such aa devested the
title of Qianceltier, according to the Spanish
471*] *Mr Justice Hn>an dissented.
Mr. Chief Justice Taney did not Rit fn this
cause, having been of counsel for one of the
Thh cause came on to be heard on the
transcript of thp record from the Disfricl Court
of the Unitrd States for the District o Mis-
Bouri, and was argued by counsel; on cinsid-
eration whereof, it is now here adjudgeC irnd
ordered by Ibis court that the judgment of tii.:
said niatrict Court In tbis cause be, and the
■ame is hereby affirmed with costs.
A «a1>p«iiR In cbancerv was Imued Id tba Circuit
Coart o( tba Halted States lor tha LoulBlaoa
Dtstrtct, on tbe ISth of July. 1S3T, returnable to
the neit (erin of the court to be bojdrn In Novem-
BffidsTlC net ai«d. stallug tbet nixvurri't at tvto
bundrpd peraons sere niinu'd ns di'tviidnntn \a tlie
bill, and that owing to (b# fpldpmlc in New Orleani
lade lor delav. Tbe CItcutI
rit. laid a mlr on the romr
I KhT the drtr-ndanta sbotili!
! aupiUat
It Court.
a ror t'l
i(e, and that In the mean t
ibould t>e had Id the eas
inlaJDiiuls oiored t
to wnrrant Ibe
rule to .bow cause, which b» been
nalH-d lor Id \e-
bait ot tbe coainlBlDauU<; on tbe
cODlrarjr. J.idK-
iDB from the evldcnre cgulalnrd In
the record, tbu
conduct of the court In relndnn
queatloD appeara lo have been itrl
tlv conformable
to tbi Draulica and prlnclplei ot a
court o( equltv.
ure of a writ of
not b-'InB vi-ri.
fi™l>/° mdsVli" tbe"/ fannoT."un'd
-r Lhc deHslons
and practice o( the cnort. lir mo--
■ red.
KrrrT court ot equItT pos^exc
tbe power la
rr^nrpea'lnraud'' ansuJ-Nne" aoV
.'?.''J.71''',J?5
if Justice r
i^drngs Id I
1 OEll
ON a motion by Mr. Crittenden for a rule on
the judges of the Circuit Court of tbe
United Stales for the li:aatern District of Louisi-
ana, for a rule to show cause why a mandamus,
in the nature of a writ of procedendo, should
•Mr. Chief Juftice Taney delivered 1*478
the opinion of the court:
Tbis caae comes before us upon a motion on
the part of the complainants, for a rule upon
the judges o( the Circuit Court for the KaMcrtt
District of Louisiana, to show can«e why a
mandamus, in the nature of a writ of proce-
dendo, abould not issue from this court, com-
manding the Circuit Court to "remand this suit
to the rule docket of the court, so that the
complainants may proceed therein according to
chancery practice."
The copy of the record upon which thfs
motion is founded shows that a bill in equity
was filed in the Circuit Court, by the above
named complainants against the above named
defeniinnts, on the ISth of July. 1B37; and that
subpa'uas tbTPupon issued, returnable to Uv
next term of the Circuit Court, to be holden
on tbe third Monday In November, in Iha
same year. On the return of the siilip'i-nns,
some of the defendanta appeared; and an af-
fldarit was Rled on behalf of a great number
of them, atating that upwarda of two hundred
479
BOFBKHE Coun V» TBK UimiD StATM.
pmotu were named ab defendantt in the bill;
that owing to the ppideniic whioh hkd prevailed
Id the cjtj of New Orleans and citj of Lafayette
and the abience of manj' persona, and the recent
•erviee of the proceiB upon many of the defend-
ftnts, it had been impo«Bil>)e for the greater part
of them, until within a short time before, to
talce the ttepe which tliej deemed necesBkrv to
their defense; that they had but recently Men
able to engage counul, and had been informed
by them that it was wholly out of their power,
with a due regard to the rights of their clients,
to ascertain the facta necessary to enable them
to decide upon the nature and mode of defense
at that term: that there wan some uncertainty
BB to the proper mode of proceeding in equity
in the Circuit Court, on account oF recent de-
eiaionB on the subject; and that on account of
the great importance of the matters to be tried,
an extension of time for the appearance of the
defendants was essentially necessary to their
proper defense, and to obtain the ends of justice;
and that the affidavit was not made for delay,
liut solely for the ends of justice.
Upon this affidavit the court laid a rule upon
the complainants to show cause on the next
day, the 21at of November, why the defendants
should not be allowed until the first day of the
next term, to make their appenrance and de-
fensei and in the mean time that no farther
step or proceeding be had in the case.
On the IGth of December, at the same term,
the complainants, by their solicitors, moved
the court "to enter an order, directing the
4T4*] 'clerk of the court to place the cause
upon the rule docket of the court, so that the
complainants mipht proceed in the cause ac-
cording to the chancery practice." This mo-
tion was overruled by the court. It does not
appear whether the time asked for by the de-
fendants was given or not, nor is there any
further order or proceeding in the case, in the
certified copy of the record from the Circuit
Court, filed here by the complainsntB. An at-
tested copy of a rule of proceeding in civil
eases, adopted by the Circuit Court on the 20th
of Novemlter, 1837, sccompanies the record,
but it does not appear that anything has bei-n
done or omitted to be done under this rule, in
the suit now in question.
The statements contained in the petition ad-
dressed to this court, not being veriilpd by af-
fidavit, they cannot, under the decisions and
practice of the court, be considered io the
matter before us.
We perceive nothing in the proceedings of
the Circuit Court to warrant the rule to show
cause which has been asked for in behalf of
the complainants. On the contrary, judging
from the evidence eonlained in the record, the
conduct of the court in relation to the cause in
Juestion, appears to have been strictly con-
ormable to the practice and principles of a
court of equity.
The particular object of the motion made
by the eomplainant* in the Circuit C-ourt is not
distinctly stated. It did not ssk forany specific
order or process, but appears to have been
made in opposition to the previous motion of
the defendants for time to answer. And. From
the terms used in the motion of the complain-
•nte, we suppose they desired the court to deny
-he motion of the defendants and to allow the
ll«t
The rules of chancery practiee^ mrnlJnnaJ
in the motion of the complainaota, nsuct, of
course, mean tb« rules prescribed by thia eourt
for the government of the courts oiF equity of
the United Rtates, under the Act of Congreaa of
May 8, 1T92, cbap. 137, sac 2, wbich ars n*-
doubtedly obligatory on the circuit eonrts.
But if the order bod been made purauant to
the motion, and tbe caae transferred to Um
rules, under the direction of tbe clerk, the tima
asked for by the defendants would, in effect,
have been refused; and under the sixth
rule of practice prescribed For the eimiit
courts, the complainants would have been en-
titled to proceed on their bill as confessed, if
tbe defendants did not appear and file their
answer within three montna after the day of
appearance limited by these rules. We think tW
'court did right in refusing thiBmotion.[*41S
Every eourt of equity poBsesses tbe poww to
mould Its rules in relation to the time aad
manner of appearing and answering, so aa to
prevent tbe rule from working injustioe; and
it is not only in the power of the court, but it
is Its duty to exercise a sound discretion upon
this subject, and to enlarge tbe time, whenever
it shall appear that tbe purposes of justice re-
quire it. The rules prescribed by this ooort
do not, and were not intended to deprive the
courts of the United States of tbia well known
and necessary power; and the facta stated in
the affidavit before referred to, certainly pre-
sented a case In which it was proper to cxer-
In expressing our opinion on tbe eonduct of
the court, we do not mean to Intimate tbnt a
mandamus would have been the proper remedy
if we bad found that the court had fallen into
error. It is not our purpose, on this occasion,
to express any opinion as to the cases in whick
it would be fit for this court to exercise such a
power. If the evidence exhibited by the eoM-
plainants, we perceive no just ground of com-
plaint against the decision of the Circuit Court,
and have therefore felt it to be our duty to aay
BO, but at the same time to refrain mm ex-
pressing any opinion upon questions which da
not belong to the case.
The motion for the rule to show cause why a
mandamus should not Issue is therefore orv-
On motion for a rule on the Judges of tba
Circuit Court of the United States for the Eaat-
em District of Louisiana, to show cause, etc.
On consideration of the motion made in tUs
cause, on a prior day oF the present term of
this court, to wit, on Monday, tbe 6tb daj of
February, A. D. 1838, by Mr. Crittenden, of
counsel for the petitioners, for a rule on the
judges of the Circuit Court oF the United State*
for the Eastern District of Louisiana to show
cause why a writ of mandamus should not
be awarded to them, directed, commanding
them, the said judges, to make an order ■«■
mandtng tbe above suit to the mles docket of
the said Circuit Court, ao that the petitionerf
therein may proceed according to chaaecry
practice, and of the argumenta of iWMnsel
thereupon had; It is now here ordered and ad>
PM«n 13.
Thi Uimn SrAna t. Knoosr.
m
judged bj this eonrt that the Mid motion be,
knd the •ame i» haraby oveiruted.
4T«*] 'THE UNITED STATES
ZEPHANIAH KINGSLEY.
Grant ol land by Spnnish Governor of Floridi
upun condition not performed.
^^A Brant (or^land In Florida bj Oov(
; pcrlormrd
MBjeat.Y, or by his lawlui ■ulhorlllea, ilandVi
" • »«IM ir Rorlda hid remaln-d
'-- * " lln, and tllB ounen uf
_ ,. ,...„,« „„u m.ve beta prer^nlPd ttom
tuiaillDg all tbe coDdttloni of tlipir grauO, hava
time by thf tr.n:;- '::t(Ti;cd to Hi»m Hi .otntilitc
■urh condKfuDB. Tbni lirai-. a* v:n ducLireU bi
this court In Arrcdondoa case. 6 JVIera, 7<8, be-
ICaa 1(1 run [n r^KOrd to IndlTldual rlBhts trom the
rarinoatlon of lli« crcatj : and tb« tr«atT declarea,
teroia llmlipd In the grant,' tHat Ibe grantuball be
■dmittrd (nut rne uaiied frntca
those equitable obllgatloDi wblcb v
would hBTp'^bM"appMtd°bv I'm'lu
of a condition '
further, thai t..,
right* of propprtr under It, !iy apjiJTloE t;., .■...^
and custnmi by whkh those ri^bia were secured
before Florida wag n n^d. n- Iit wMcb ou Im-lioRie
riebt of properlj' would, bj those law* and custonia,
bnve been adjudicated i>y Ibe IjpaDlali aulboiltlei
to hare bfcome a per.Vrt right.
- lallFo to iranta
ON appeal from the Superior Court of Eait
Florida.
In the Dietriet Court of East Florida, in
April. 182U, Z<>p!iaiiiBti Kinfslry pn »?nted a
petition, claiming title to a fracl of liind situ-
ated on a creek emptying into the Kiver St.
John, nhich he asaurtuJ was granltil to liim
by Governor Coppinger, on the 20th of No-
vember, ISie, while Euat Florida waa held by
the crown of Spain.
The petition stated that in virtue of the
grant, the petitioner had, soon after ita date,
entered and taken pos sees ion of the land, and
was preparing to build a water saw-mill there-
on, according to the condition of the grant,
but was deterred therefrom by the disturbed
atate of that part of the province oF East Flor-
ida, and the orciipancy of the land b;r some of
the tribes of Florida Indians, who were iran-
dering in all directions over the eountry.
477*J "The grant referred to in the petition
waa in the following terma:
"Considering the advantage and utility which
ia to accrue to the province, if that is effected
wbicb Don Zephaniah Kingnlcy proposes to do,
it ia hereby gianted to him, that, without prej-
ISi
ndlce of a third party, he nay build a water
aaw-miU in that creek of the River St. John
called M'Girt'aj under the precise condition,
however, that until ha builds said mill, this
grant will be considered null and void; and
when the event takes place, then, in order that
he may not suffer bj the expi-nsive preporationa
he ia making, he will have the faculty of using
the pines comprehended within the square of
live miles, which he solicits for the supply of
said law-mill; and no other person will have a
right to take anything from it. Let the cor-
responding certilicate be- issued to him from
the aecretary's office. COITINUER."
The district attorney of the Utiiled States for
East Florida filed at May Term, 1S21). an answer
to the petition of Zephaniah Kin^ialey, requir-
iii;r f:-om the court that due p.-oof should be
Luude by the petitioner of the matters set forth
in the petition; and alto that the grantee had
^■repared to build a water saw-mill on the land,
as stated in the grant.
The answer also aaserts that the grant waa
made on thi? express condition that, until tha
grantee built the uiill, tlie g.ant was to be
considered a* null and voidi and that he had
wholly and entirely failed to build the mill, and
slill fails to build th'j same.
On the 6th July, 1B33. an amended petition
was filed, setting forth that, upon the state and
coudition of theprovinceof East Florida, east of
the St. John's, being made known by the
grantees of mill grants, and of the inipoisibility
of complying with the conditions of toe grants;
Governor Conpinger, by a verbal order or
decree, made Known that in consequence of the
continued unsettled and disturbed state of tha
province, and of the impossibility of the
grantees of mill grants complying with the
conditions of the same with safety to tliem-
aelves or their property ; that the grantees should
not, by a failure to erect their milts, thereby
forfeit their title; but that the same should re-
valid, unJ be enonerated from thecompli-
of the ronlition therein named, till the
«tnte of the eountry should be anch as that the
grantees could, with safety er.-it their works.
The amended petition alleged that the country
w^d in a disturbed and dangerous stiite frm
the dat« of the petitioner's grant, and for a
long time previous, till the transfer of the prov-
ince from "Spain to the United BtateB;["47B
and that your petitioner could not, with any
safety to himself or his property, have erected
said mill west of the St. John's, between the
time of the date ot his grant, and the transfer
of the province aa aforesaid.
To this amended petition the district attorney
answered, and called for proofs of the allega-
tioni therein; and he also submitted to the court
that if the part of the province in which the
land said to have been granted had continued
in a disturbed situation fi-om Indian hostilitiee,
it had been in that situation when the- grant
was made; and that this should not be an excuse
for the noncompliance with the conditions of
the grant. The answer alleged that from 1821,
Krt of the province baa been entirely tranquil,
t no attempt to erect the mill has been made.
At July Term, 183S, a aecond amendment
to the petition waa filed, stating that aoon after
tha laauing of the grant, the petitioner entered
«71
SvPBxyrc taOtt at thb Unrcd Staii
u»d took poMeflBion of » tract of the landaur-
T^yed to him under the ^ant, and utuslly be-
nti to build a mill iipon it; but was deterred
bj the dangeroua aituation of the country from
completing the same. The aniwer of the
dittrict attorney denied the allegations In this
petition, and called for proofs of the same. No
evidence was given to austain the statement in
the lecond amended petition. The aaaertion
thut the unccrtaintj aa t« titles to the lands in
the province since the transfer by Spain, is de-
nied to l>e an excuse for the laches or negligence
of the grantee.
After the production of written evidence,
and the examination of witnesses, the District
Court gave a decree in favor of the petitioner;
confirming to him the quantity of land men-
tioned in the grant. From this decree the Unit-
ed States prosecuted an appeal to this court.
The case was argued by Mr. Butlei, Attor-
Bey-Gencral, for the United States. No counsel
appeared for the appellee.
Mr. Butler contended that the grant to the
appellee waa on condition, and the condition
had not been complied with. The language of
the grant is enplicit; and no title to the land
COUla be derived under it, until the terms
were comp'ied with; "Until he builds said
mil), this grant wilt be considered null and
void; and when that event lakes place, then, in
order that be may not suffer by the expensive
preparations he is making, he will have the
41B*] faculty of using the 'pines comprehend-
ed within the square of five miles, which be
solicits for the supply of said aaw-mill."
It is admitted that according to the decrees
of this court giving the timber on the land,
glTes the land; but in thta otise, the objection
to this contirmation of the appellee's grant
rests on other grounds. No attempt to comply
with the condition of the grant was made. It
has been decided by this court that although
Nuch grants were on conditions precedent, yet
if a party has commenced making the improve-
ment, and ia prevented by circumstances beyond
his control from completing it, the grant, under
an equitable view of it, will not be defeated.
The strongest case In favor of a grantee is
tb* case of Sibbald (10 Teters, 313). In that
case elTorts were made to build the mill, and
they were defeated. But in the case before the
court no such efforts were made, Thecondition
is, that within six months the mill shall be built;
and the conBiderntion for this grant is the ad-
vantage and utility which will accrue to the
province from the improvement. The allevia-
tion that the disturbed situation of the province
would not permit the Improvement is of no
value, when taken in connection with the
eiroumstance that when this grant was asked
[or the province wa* in that situation. No proof
la in the cuse of any attempt; and the second
amended petition, in which this is asserted, is
altogether unsupported by evidence. The
allegation was not made until the decisions of
this court, making an attempt to comply with
^ condition ii) a graqt sufficient tp in»ke such
grant valid.
But there Is another view of this case upon
which the claim of the petitioner to a canfir-
mation of tbe grant should be refused.
Oovemor Coppinger, by • written order.
declared that within sis montba tt|e condition
In all grants should be complied with. WUt*^
Compilation of the Spanish Land Tjiwa, 2M.
The six moutha allowed by tbe order expired
long before the F'lorida Treaty of Cession-
This is an appeal by tbe United Statea from
a decree of the .Superior Court of the Eastrm
District of Florida, cunrLrming a land claim.
It appears tliat Zephaniab Kinsley, on th«
ZOth of November, ISIO, being lli< n an inlia)>it-
ant of the pruvince of Florida, petitiomil i;ov-
;mor Coppinger, staling, "that wishing (o
srect a water saw-mill in thatcreek of the lUver
St. John called M'Girt's, on a vacnnt placr, and
it being necessary for that purpose to have a
quantity of 'timber sufHcirnt to supply [*-180
mill and establishment, he suppMcates your
llency to be pleoacd to favor him witli your
superior permiaaion to build the same on tbe
place aforesaid, with its area of five milea
square of land as the equivalent thereof, for
ita continued supply of timber; lioundfd soulii-
sast and south by lauds granted to I'er^iisvn
and Doctor Lake; south-west nnd westby vu>-aiit
lands; north by Don Juan M'lntosh's land, ami
east by lands of said Kingsley and the River
St. John."
Upon this petition the governor made the
following decree:
"Considering the advantage and utility
which is to accrue to tbe province, if that ia
effected which Don Zephaniah Kingsley pro-
poses to do, it is hereby eranted to him, that
without prejudice of a third party, he may
build a water-mill on that creek of the River
St. John called M'Girt's; under the pr(-ris«
condition, however, that until he builds &uid
, this grant will be considered null and
: and when the event takes place, then, in
order that be may not auHer by the expensive
preparations he is making, he will have t!iH fw-
ulty of using the pines comprehended within
the square of five miles, which he bolieils for
the supply of said saw-mill; and no othi-r pa-
son will have a right to take anythin-; from it.
Let the corret^poiiiling certideate be i£auL>d to
him from the secretary's odlce.
"St. Augustine, 2d Dec. 181G.
"COPrlN'flER.-
Upon this decree, the petitioner sl.ites that
soon after the date of it, he enlerrd upon and
took poBscsaion of the land granted in the ^il«-
ation oientiuncd in said grant, and wns prej<ar
ing to build a water saiv-niill, SBrcenbiy to tbe
condition of llie grant; but was deterred there-
from by the dietuibrd state of that part of the
province of East Florida, and the oeeup^noy of
the land by some of the tribes of Florida Indi-
ans, who were then wandering in all direriiun*
over the country. The appellee then inaisla lUat
his right to the land is embraced by the treaty
between Fpain and the United States; gives a
narrative of his submission of hit claim to tbe
board of commissioners, under the Act of
Congress entitled "An Act ameniling and
supplementary to an act for asrertaininjtelniri*
and titles to land in the torrllory of Flori.ln.
and to provide for the survey and dispooal of
the public lands in Florida," passed 3d Marrb,
1823; that the commissioners reported unfavor-
ably upon Iti which he insists was coiitrar) !•
^ Peiers 12.
I%3$
The United SiAns v. KiitOBLCi.
tbB Imw and BTidcnce produced in the cauie:
and further, tbat the report of the commfsBion-
sn upon hia ctnim was not final, aa the tract of
Und claimed bv hlin corlaina a larger quantity
481*] than tbe ■commiaHionera were autlior-
tE«d to decide upon bj anj of tbe acta of Con-
The petition of the appellee, of which ta
Bbatract haa been just given, waa filed on the
21at April, 1BS9. In the fallowing month, the
United States, by the United Statea attorner,
filed an anawer to this petition, denying, for
sundry causes and reasons, the entire existence
Knd equity of the appellee's claim; and in An-
guat of the ensuing year, the United States
attorney amended his answer, referring to cer-
tain ordcra of Governor Coppinger, dated the
27th October, 1818, and on the 10th January,
1810: the firat of which limits the time to sii
months from tbe 2Ttb October, 1BI8, within
which all grants and concessions of land which
hmA lieen made on condition for nechanicat
worlcs, to wit, factories, saw-mills, etc., were to
revert to the claaa of public Innds. and to be de-
clared vacant, unless the CTantecs, or concea-
aioners, should comply witti tbe conditions of
auch grants or concessions; and the second of
which declares all such conditional grants or
concessions null end of no effect, in those cases
where tbe persons in whose favor they were
made, had remained Inactive, having done
nothing to advance the establishment of those
works. See White's Compilation, 260, 253, 2B<),
257, for these orders.
T^e United Statea attorney alleges the appel-
lee to be one of those persons whose supposed
concession was null and void under the flrst
order, and that it wss entirely annulled and set
aside by the last, as he had not then, nor had
not since established or advanced, in any man-
ner, the building of his mill, but had wholly
failed, and neglected to do so. To this answer,
tbe appellee put in a general replication; and
tbe cause came, by regular continuance, to the
term of the court tn November, 1S32, when
permission was given to tbe appellee to amend
his petition. In July, 1833, he filed the amend-
ment, stating that the disturbed and dangerous
condition of the province west of the St, John's
lUver, which continued from IBIZ to the ex-
change of flags, had Induced Governor Cop-
pinger to declare, by a verbal order and de-
cree, that tbe unsettled and disturbed state of
the province, and the impossibility of the
grantees of mill grants to comply with the con-
ditions of tbe same, with aafcty to themseli
, forfeit
not, by
their titles.
Of the existence, however, of any auch mod-
4S3*] iflcation of the condition *of such
grsnts, by any verbal order and decree, the ap-
pellee gave no proof on the trial of this cause.
In tbe amendment of the appellee's ^tttlon,
the United States counsel replies, denying tbe
existence of any such verbal order and decree
bf Governor Coppinger; and atatlng that if
there was any such danger from the <^turbed
cenifltion of the province as the appellee had
alleged, that it existed as well at tbe time when
be applied for the grant and when he ae-
ecpted the same, as at any time afterwards.
In this state of tha pleadings, the cause
t li. ML
brought to trial, as well upon tbe evidence ob
the part of the United States, aa upon the part
of the appellee, but was not then decided. At
the Julj' Term of 1835, the appellee filed, by
permission of the court, another amendment to
his petition, in which, after reciting the sur-
veys made under the decrees of the governor
upon his petition, ha further says that soon
alter the grant was made to him, he took pos-
session of the land, and actually began to build
a water saw-mill on M'Girt's creek, pursuant
to the condition of the grant; but that he was
deterred and prevented from completing the
same by the disturbed and dangerous state of
the country, which continued until tbe cession
of Florida by Spain to the United States. And
after that cession, he states he was deterred
from proceeding to the further performance of
the conditions of said grant by the great uncer-
tainty in which his right and title to said land
waa involved by said cession. To this amend-
ment of the petition the United States attorney
replied, repeating the facts and objections to
the claim of the sppctlee tnsde in his previous
answers, and further insisting that the surveys
upon which the appellee relied were made after
the 24tb of January, 181B, and are not agree-
able to the calls of the said supposed grant;
and that they are null and void by the pro-
vision of the latter clause of the Sth article of
the treaty between Spain and the United States
of the 22d February, 1819.
Upon these pleadings snd the evidence, the
court has decreed the appellee's claim to be
valid; that it is in accordance with the laws
snd customs of Spain, and under and by virtue
of the late treaty with Spain, and under the
by virtue of the laws of nations, and of tbe
United States.
We think differently from the court upon all
the grounds stated in the decree. They open a
wide subject of remark; but we abstain from
discussing any of them, except the application
of the treaty to this claim, or of the laws and
customs of Spain. These points we shall touch
very briefly. We flrst observe that no case of
a 'land claim in Florida, confirmed by ['483
this court under tbe treaty, either in terms or by
necessary inference front what the court has
said, covers this case. We view this claim
under the decree of Governor Coppinger as a
permission to enter upon the land designated In
the petition and decree, in which land the ap-
pellee did not and could not acquire property,
inchoate title, such as embraced l^
Bth article of the treaty; or by the constructioa
of It, until he had, in good laith, prepared to
execute the condition which the appellee held
out aa the inducement to obtain a grantt or in
other words, we think the decree of the gov-
emor contains a condition precedent, to be per-
formed by the appellee before the grant could
take effect. In this case the appellee never
attempted to perform the condition; there is no
proof of bis having done so in good faith, by
the expenditure of money or application of
labor. On the contrary, there are, m the orig-
inal petition of tbe appellee to the court be-
low, and in all the subsequent amendments of
it, from 1820 to 1833, his declarations that he
had not done so until the amendment made in
1835; wbrn he states, for the first time, that he
actually began to build a water aaw-mill, ae-
74 1 les
Bormu Conr or tmb Umi^ Szaim.
eording to the condjtloiu of the gntnt a short
time after it was made, but that he waa pre-
vented from completing it by the difiturbed and
dttneei-ouB condition of the country.
The ontj proof given by bim oi hii having
actually begun to build ia very equivocal, and
should have been rejected by the court on the
ground If its being hearBay, except io much of
It aa relates to the remains of same wotk or
mill-dam, which of itself could not be evidence
I such work having been done
by himself, as the witness testifying, says ex-
Ereisly that it was only from hearsay that he
ad said that work waa done by the appellee.
The witness says he does not know of his own
knowledge that the appellee ever made any at-
tempt or preparations for building a aaw-mill
on said mill-seat tract, but that ae had seen
timber on the said tract; was told it was got
by Kingeley for the purpose of building a saw-
mitli that he afterwards saw a dam had been
erected on each side of the atream; in the bot-
tom of the stream saw timbers laid, sa witness
aupposed, for the sills of a saw-mill; that he
only knows from hearsay, that said prepiLra-
tions were made by Kingaley; that a part of the
preparations are sLill remaining, and to be seen
on said tract; that he first saw the timber
alxjve mentioned in the year 1817 or 1818, and
484'] shortly after saw *the dam and sills
aforesaid; that the said timber waa mostly de-
stroyed by fire. And by the record we are left
to conclude that these works were made by
Kingaley without any, even probable proof,
that he had at any time taken possession of the
land. We cannot do so; and if we could, it
would be deemed by us no compliance with the
ooadition contained in the governor's decree or
eonceasion in his favor, ss the work was discon-
tinued for an insufficient cause — that was, the
disturbed and dangerous condition of the coun-
try. All the witnesses concur in stating there
was no more danger after the appellee peti-
tioned for the land than there had been before
and at the time of his application. The appel-
lee, then, cannot he permitted to urge as an
excuse, in fact or in law, for not complying
with his undertaking;, a ^n^r which applies
as forcibly to repudiate the sincerity of his in-
tention to build a mill when he petitioned for
land for that purpose, as it docs to hia inability
from such danger to execute it afterwards.
Under the treaty, it is true, that grants of land
made before the 24th January, ISIS, by His
Catholic Majesty, or by his lawful authorities,
■tsnd ratiAed and confirmed to the same extent
timt the same grants would be valid if Florida
had rematnpd under the dominion of Spain;
and the owners of conditional grants who have
been prevented by the circumstances of the
Spanidh nation, from fnltilling all the conditions
of their grnnts, have time by the treaty ex-
tended to them to complete such conditions.
That time, it was determined by this court in
Arredondo's case (6 Peters, 748, 740), began to
run, in regard to individual rights, from the
ratificotion of the treaty; and the treaty de-
clares if the conditions are not complied with
within the terms limited in the grants, that the
grants shall be null and void. It Is admitted
that in the construction of tbts article of the
>T the United States aucceeda to all thoaa
equItaUe obllgatioiis which we ar« to anppaaa
would have influenced His Catholic Uajeaty ta
secure to his subjects their property; and whkh
would have been applied by him in the ctn-
struction of a conditional grant to make it ab-
solute. Aod further, in the constructioti ot
this article of the treaty, it must t>e conceded
that the United States must maintain Um righU
of property under it, by applying the lawi aad
customs by which those righta were aecnnd
before Florida waa ceded, or by which an i>-
choate right of property would, by laws aad
plying, in the first instance, in such cases, as
waa said in Arredondo's case, the principles of
justice 'according to the rulea of equity; [*4B3
and in the second, all those laws and custonu
decisive of a right of property, whilst the par-
ty claiming the right waa a subject of Spaia-
Test, then, the case before us by the most lib-
eral equity, and it will appear that the clain
of the appellee cannot he sustained by ainy ef-
fort by him to perform the condition of tlw
governor's grant, either before the ratification
of the treaty or aince. Indeed, in the last
amendment of his petition in 1S35, be atatei he
waa prevented from proceeding to the further
performance of the condition of said grant by
the great uncertainty in which his right and
title to the land was involved by the cesaioa.
These Florida grants, or concessions of land
upon condition, have been repeatedly <oa-
firmed by thia court; and it will apply the prin-
ciple! of its adjudications to all cases of a likr
kind. It will, as it has done, litKrally con
. true a performance of conditions precedent or
subsequent, in such grants. It has not, imv
will it apply in the construction of such cod-
ditioDB in such cases, the rules of the cummon
law. But this court cannot suy a condilioD
wholly unperformed, without strong proof of
BufTicient cause to prevent it, does not deCeit
all right of property in land, under auch a de-
cree as the appellee in this case toakes th*
foundation of his claim.
Arredondo's grant, confirmed by tliia court
(6 Peters], was a clear case of a grant in fee
for past services and commendable loyalty la
his Bovereigti, with a condition subsequent, of
a nature the performance of which must liavf
been a matter of indifference aa well to the
King of Spain as the United States after a «*■-
sion of Florida was made. The condition wss
that the grantees should estahlisb on the land
two hundred Spanish families, and that they
were to bepin to carry into effect the establish-
ment within three years from the date of tht
grant: and there was no time limited for its
completion. This court said, in that <wm (<
Peters, 748) : "From the evidence returned
with the record, we are abundantly sati^fird
that the establishment was commenced within
the time required (which appears to have beea
extended for one year beyond that limited in
the grant), and in a manner which, conaider-
inn "le state of that country, as appears by the
evidence, we must connidcr as a perfonnaoc*
of that part of the condition."
The case of Segui, 10 Peters, SOB, wat a
grant in consideration of serrlces to the Spaa-
ish government, and for erecting machinery
for the purpose of sawing timber. That grant
isn
SiBBALO V. Thi Uhitd Statu.
wfti conflnned bj* tliU ironrt, upon the ground
that the governor conBidpred the services of
480*) *S«gui A sufHelent coaHid«ration, E.ni
made the grant absolute. Scton'^ (?as«, 9 Pe
t«ra, 311, waa a decree or pensiBsion of tht
governor, in all particulars like that now be
fore uBj and Seton's right to the ■urvey which
baa been made, und to the equivalent quantity
to make up the extent of the original concee
■ion, was conUrmetl by this court, upon the poi
itive proof that Seton had built hii mill Id
J oar after the date of the decree upon which
e claimed. Sihba,td'i ease, 6 Peten, 313, an
other like Seton's and thnt before the court,
were conflrmcd by thia court upon the ground
that Sibbald liad performed the condition ac-
cording to the rules of equity which govern
these cases. Sibbald, In good faith, and with-
in a reasonable time after the decree In his fa-
vor, began to build his mill ; expended Rve
thousand dollars towarda it; had his horses and
negroes stolen while the mill wag building; his
mill-dam carried away by a freshet, in the ab-
aence of his millwright, who was in purauit of
the stolen property; rebuilt his mill in 1R2T,
which was deistroj'ed by fire the same year;
and the year after, built again another mill of
twenty Jiorse power, which could saw twenty
thousand feet of lumber a day.
It remnina only for ua to say a word con-
cerning the law* and customs of Spain, sup-
posed by the learned judge in the court below
applicable to the confirmation of this claim
under the treaty. The fact that no Instance is
known of land so decreed having reverted to
tha elaas of public lands for the lonperform
■ne« of the condition, does not prove a cus
torn unless a current of cases can be ahoivn ir
which claimants have held the land without
performance. Besides, the existence of any
■ucfa custom is disproved by the decree for the
land itself; by the subsequent decreea of the
Spanish governor, declaring landa granted
upon condition would be null and void within
a certain time, if the conditions were not per-
formed; and by the treaty itself, which atipu-
latea for tlie performance of conditions within
terms after the treaty was made, contained in
tbe grants, and which is reco^iced by this
court by its decision, that the time given only
begins to run against individual rights from
the date of the ratiUcation. As to the laws of
Spain, BiippuNpd to aid the case, we remark, It
being conceded that the governor had authori-
ty to make grants and concessions, and to give
ing with the performance of them or a release
of the performance of them by the governor,
sanctioned by the general royal authority under
which he acted; or a release by royal authority
«»7*] after grants were made general In its
application, or applicable to some partlcutiir
ease or claa* of cases, can be admitted, proprio
vigore, as a release of the obligations upon
grantees to perform the conditions of these
grants. It is not pretended that any such law
or release exists.
Hr. Justice Baldwin dissented.
serlpt of the record from the Superior Court
for the Eastern diatrlct of Florida, and was
ur^ed by counsel; on eonslderation whereof,
it la the opinion of this court that the petition-
er having failed to fulfll the condition of the
grant, that the said grant or concession is null
und void, and that tne said petitioner has no
right or title to the land. Whereupon, it
is now here decreed and ordered by this court,
that the decree of the said Superior Court
in this cause be, and the same is hereby* re-
versed and annulled, and that this cauae be,
and the same is hereby remanded to the aaid
Superior Court, with direction* to enter a de>
cree in conformity to the opinion of this court.
THE UNITED STATES, Appellants.
Practice — new mandate issued, when — exercise
of apnellate power — final decree in chancery
equally conclusive with judgment at Uw.
On an appeal frain (be Buperlor Court ot Bast
Florida bj Ihe Unlled males, lbs deccee ol Ibc
title ol sibbald, the appellee, to whom the grant Ot
land bad been made I>; the Hpanlsh Bovernur be-
fore tke cession ot Florida, baviof been deemed
valid bj tba Supreme Cagtt. Xtie decree ol tbe Sii-
" llrected tbe (arTcjor of public '
I East Florida t<
all tblDgi enlalned on bim hf
■' lands In thi lurveys made
.- - — cue was remanded to tbe
Superior Court of East Florida for the eieculloD
or tbts decree. The mandate of tbe Supreme Court
lor tbe eieentlan ot tbe decree of t^« Supreme
Conrt wai directed to tbe Superior Court of l^ast
Flarlda; and the aurreror of public Isoda would
not make the surveys of the lauds In tbe Kraat,
SccordlDg to the declaloa ot Ibe vourt. the maudate
not haTlDR been Issued lo him. A petition waa pra-
sented to tbe court b; Sibbald, stating tlieu tacts,
aud asking the court to order that a aioadnte be
made out. directing tbe sarveyor of public landa to
do all required of bIm In relation to tbe aurreys
Dl Ibe lands of Ibe grantcf, lo conEormltj with
dered. The court la bound t„ .
wblcb will suit (be case. Tbe man
0 the s
It la, thel-efon
tnd as
of tbe Dnal decree a( tbe Buprem* to-art
It remains unexecuted. It la not too late li, ,.
done, and requires do new order or decree In env
war modltflng tbat wblcb baa been rendi<red. Tbe
clerk waa ordered to make out a cerdOeate of Ibe
Dnal decree of tbe court before rendered, and also
. ^.„A.^ ..„_*__ — ...... —.,, ^„ret, r-
landate according I
pinion of the
Appellate c
t in tba esse, and o
tbs petl-
0 tboae 01 tbe appel-
ipellate power ts
. of Interior court.,
e conrta. The Superior Court „_ ,.v„>., „
'lew their deditona, sbetber In a case nl law or
equllj. A dnal decree In chaneerj la as conclusive
-Igmeot at law. Both are conclusive on tba
it the psrllea Iberebj adjudicated. No
1] ap-
can revorae or annul
n to be heard on U» tran- aute a
Sdpkkkb Oodbi or THK Umm ArAitt.
(ollowt that DO cbaiige or mod1fic«UoD can be and*
t (artlier (ban I
It 1 or iDtermeddle wllb
r a QiaDdatc, no rebcarlng will be grsnted.
I ■ lubseaiient appeal. notblDi la brought up
e proceeding luUequeut la the mandate.
3e special mandate directed bj the 24tb wc-
r ihe Ji.rtlHarT Art ie not obejed, then the
"all the courts of the
wrltB whlcb are oeeet-
-- .- - . jspecllve Jurladlc-
— i agveealile Id the prluclplcii and utases
of low," by Ibe Utb tectlon ot the JaUlcUrr Act,
talrlr arlBca : and a mandamui or other ipDro-
prlale irrlt will (o.
MR. CLARKE, for Mr. Sibtwld, mov«d to re-
form the mandate iaaucd by the court in
tbia CHsc at January Term, I63Q, ao tit '
form tlie same to the opinion giTen b; the
court at that time; or to issue a mandate to
tUe •urvey or- general of the diatrict of Eaht
Florida to do those acts and things which he ii
commanded to do hy the judgment of this
oourt, and which ore enjoined on him by law.
Ha cited 10 Petera, 313j 3 Story's Lawa V. S.
1962; 6 Petera, 171; 10 Petert, 100.
The petition on which the motion was mftde
aUted:
That at January Term, 1336, of the Supreme
Court of the United States, the case of The
DniUd States, Appellants, v. Charles F. Slb-
b«ld, appellee, was argued and determined in
faTor of said Charlea F. Bibbald, and there-
upon the fallowing decree was given, to wit:
"On consideration whereof, it ia ordered, ad-
judged and decreed by this court, that the
decree of the aaid Superior Court, conflrming
the title of tlie petitioner to the ten thousand
acres on Trout Creeli, be, and the same is here-
by ofHrmed; and that the residue of the decree
of the aaid Superior Court be, and the oame i«
hereby reversed and annulled. And this court,
E«ding to render such decree as the said
rior Court ought to have rendered, doth
', adjudge and decree, that the claim of
the petitioner to the land embraced in the
surveys of four thousand acres, and of two
thousand acres, as returned with and contained
in the record, is valid; and that the same he,
and is hereby eonlirmed. And it is further
ordered, adjudged and decreed by this court,
that the surveyor of public lands in the eastern
district of Florida be, and he ia hereby directed
to do, and cause to be done, all the acts and
tbinsB enjoined on him by law, in relation to
the lands within said aurvey. And that the
490*] said cause be, 'and the same ia hereby
remanded to the said Superior Court, to cause
further to be done therein what of right and
according to law and justice, and in conformity
to the opinion and decree of thia court, ought
to be done." Vide 10 Petera, 32i.
Your petitioner further representa that he
ai««
made application by his solicitor to i^d Bnpe-
rior Court of East Florida to execute the maa-
date afori'iiaid, and which ninndate be now «.
hibits in tliis coiirt, logethpr with the opintoa
of the judge of said Superior Court declining
to execute said mandate, according to the n-
Huirementa of jjour pptilioner, for wsnt of
power or authority under said mandate.
Your petitioner further rrpresents that by the
opinion and judgment of this honorable court, te
considered two points as clearly settled, to wit:
Tirst, that he was entitled to the full comple-
ment of sixteen thousflnd acres, according to
his original grant. Second. That he had an in-
herent privilege to direct or point out whrrt
other locations should be made, in cose tlie sur-
vey or surveys made for him was interfered
with by older and good claima.
Your petitioner further rcprcBenta that afttr
said mandate was isHued,anu ita execution de-
manded, it was clearly ascertained that then
were divers interferencea with older aurveya, so
as to prevent him from obtaining his toll
amount of lands; unless the deficiency were
made up to him by other locations, to be peunt-
ed out. It will be eeen by the opinion of the
judge of said Superior Court that he declined
ao to direct said siini'ys, according to his con-
struction of said mandate.
Your petitioner further sets forth that In the
decree of said court, the surveyor -general of
East Florida was ordered and directed to do
certain acta, and make the surveys therein
ordered; hut that no such mandate hns been di-
rected to Bsid aurvcyor. He therefore pray*
that said mandate may be issued, in sueb term*
as in the opinion ot the court may be right and
Your petitioner therefore humbly praye your
honorable court to amend the error in said
mandate aa to conform to the judgment of the
court, and that full and complete execution
thereof may be had.
The petition was sworn to by Charles P. Sb-
bald, before a justice of the peace of the Coua-
ty of Washington in the District of Columbta.
On the 7th of March, 1838, the counsel for
the petitioner filed the following supplemental
petition.
'The Bupptemental petition of said [*4tl
Charles F. Sibbald, respectfully rcpreaenta —
That hy reference to the judgment of tha
court, aa set forth in 10 Peters, 324, it was
Florida be, and he ia hereby directed to do. ai
cause to be done, all the acts and things en-
joined on him by law, in relation to the lands
within said survey." And It was further
ordered, adjudged and decreed, "That the
said cause be, and the same is hereby remanded
to the said Superior Court, to cause further to
be done therein what of right, and according ta
and justice, and in conformity to the opa-
and decree of this court, ought to be
Your petitioner respectfully repreacnta tW
by the said judgment and decree certain dntit*
were imposed upon the surveyor of the put^
lands, OS well aa upon the said Superior Cooit;
but that the mandate of this court as made oat
b^ the cleric. Is made to the judge of tha Supe-
-"T Court only, and none la directed to aaid
PMen 1>>
18U
SiBBALO t. Thk Uhith) Statu.
nrrefor; wTiich your petitioner conaidera not
to be an execution of, or in conformity with
Uic jud)^ent of this court.
The (liilies of m aurreyor «re proacribed by
tb« 6th and 11th aectiona of the Act of Con-
greae of IS34. 3 Story, 10C3. And by an Act
of 23d May, I82S. are made applicable to casea
tn Florida, i Story, 2126, sec. 6; and 0 I^ws
U, S. 68, sec. e.
The dutit^a of the judge of the Superior Court
■re defined by the lat aec. of aaid Act of 1S24.
3 Story, JOCO.
Your petitioner, therefore, respectfully prays
that the mandate of the court aa rendered be
made out by the clerk In conformity to the
Judgment of the court, and that It be lo done
aa to direct the aaid aurveyor, by a mandate to
bim, to do, or cauie to be done, all the acta and
things Fnjoined on bim by law, in relation to
the landa within said aitrveya. And alio to
direct the mandate to the Superior Court to
cause further to Iw done therein what of right
and according to law and justice, and in con-
formity to the opinion and decree of thia court,
ought to be done.
Mr. Jiiitioe Baldwin delivered the opinion of
the court;
The matter of the original and aupplementa)
petition of the party Is founded on a final de-
cree of this court In the caae of The United
Statea t. Cliai-lei F. Sibbald, which ia reported
la the loth vol. Peter's Reports at large, in p.
313, 325; in which latter page will be found the
4*2'] 'final decree and mandate therein made,
tlie tubstanee whereof ia fully aet out in the
petitiona now before ub.
Before we proceed to conaider the matter
presented by theae petitions, we think proper to
state our settled opinion of the course which is
prescribed by the law for this court to take,
after ita final action upon a case brought with-
in its appellate jurisdiction; as well as that
which the court, whone final decree or judgment
bvB been thus veriiied, ought to take.
Appellate power is exerciaed over the pro-
ceeding^ of inferior courts, not on thoae of the
appellate court. The Supreme Court have no
power to review their decisions, whether in a
caaa at taw or In equity. A final decree in
chancery is aa conclusive aa a judgment at law.
I Wheat. 355; 6 Wheat. 113, 116. Both are
conclusive on the rights of the parties thereby
■djtidieated.
No principle Is better settled, or of more uni-
Tersal ipplicstion, than that no court can re-
verse or annul its own final decree* or judg-
ments for errors of fact or law, after the term
In which thpy have been rendered, unless for
clerical miatakea (3 Wheat. SSI; 3 Peters, 431),
or to reinstate a cause dismiased by mistake
(12 Whent. 10); from which It follows that no
change or tnoilifiration can be made, which may
■ubetantJally vary or aHect it In any material
thing. Bills of review, in eaaes In equity, and
writs of error, coram vobis, at law, are excep-
tfona whioh cannot affect the present motion.
When the Supreme Court have executed their
power in a cauae before them, and their final
decree or judfip^ent retjuirea some further act
to be done, it cannot usua m ^xecutioa, but
abaJl send a special mandat« to the court below
to award it. 24 sec Judiciary Act, 1 Story'a
Jaws, 111. Whatever was before the court,
and ta dispoapd of, is eonsldered aa finally aet-
tied. The inferior court is bound by the decree
aa the law of the caae, and muat carry it into
•seeution according to the mandate. They
cannot vary it, or examine it for any other pur-
pose than execution, or give any other or
further relief, or review It upon any matter de>
cided on appeal for error apparent, or inter-
meddle with it, further than to aettle so mucb
aa haa been remanded. 1 8. 0. 104, ID7; 1
H. & M. 6&Ti 3 Henif. 220. After a man-
date, no reheariug will be granted. It Is never
done in the Houae of Lords (3 Dow. P. C>
167); and on a subaequeot appeal, notbiag i*
brought up hut the proceeding subsequent to
the mandate. S Cranch, 316; I Wheat. 68, 69}
10 Wheat. 443.
If the special mandata directed by the 24tb
section ia not obeyed *or executed, I*49S
then the general power given to "all the cottrta
of the United States to issue any writs whlcll
neceasary for the exercise of their res^t'
[ve jurisdictions, and agreeable to the princi^
plea and usages of law," by the 14th section of
ths Judiciary Act, fairly arises, and a manda-
mus or other appropriate writ will go. 1 Story,
SB.
In the original cauae, the now petitioner
claimed sixteen thouaand acres of land, which
surveyed In three tracts of ten, four,
and two thousand acres. The court below
coDltrmed bis title to the tract of ten thousand
. . . rveyed at the place called for in the
grant, but rejected his claim to the two others,
surveyed elsewhere, by their final decree, which
concluded thus: "And it la further ordered,
adjudged and decreed, that the said claimant
have leave to survey the whole number of acres
called for in his grant at the place designated
in the same; provided vacant lands of sufficient
extent may be obtained at that place."
The effect of this decree whs to confirm the
title to the whole quantity of sixteen thousand
acres called for in the grant, if so mucb could
be found vacant at the place called for, hut to
prohibit the survey «f the deficiency at any
other than the place designated; whereby ths
claim waa reduced to ten thousand acres.
appeal to this court, the petitioner's
claim was confirmed to its full extent of six-
teen thousand acres, according to the three
separate surveys in the record; the decree be-
low waa affirmed aa to the ten thousand, and
reversed as to the two other surveys of four
and two thouaand acres respectively, and a
mandate ordered accordingly.
In order to ascertain the true intention of the
decree of confirmation, and consequently of the
mandate and its effect, that part of the decree
below which waa affirmed muat be taken in
connection with the petitioner's title and the
construction of it by this court. Both courta
confirmed the title to the whole quantity
claimed; the difTerenee between them was as
to the two small surveys, which the court be-
low rejected on their construction of the grant;
betng of opinion that by ita terms, the whole
quantity must be surveyed in one place. This
court, construing the graat diflers))tly, held
74
let
tiDl>>BHK t'OUVT or TBI URItBt Btaikb.
placet other than the
■ fter surveying all that wai vacant there, Hit
qutintitj found deficient might be surveyed
where the grantee designated. Tbii wai done
as appeared by the evidencej BurvejB wert
4B4 ] made by the proper 'officers, and with'
out objections by the Spanish governor. Theae
wore the surveys confirmed by this court at
tlie place referred to tu the plots in tbe record.
Vide 10 Peters, 323, 324. There can, therefore,
be no difficulty in understanding the mandate
in this respect. It gives to the surveys of four
and two thousand acres the same validity as if
tliey had been made for the land specified
the grant; as tbe "equivalent" of what coi
not bo found vacant at the place called for
the grant. In the decree of the court below, the
proviso, if vacant lands of sufficient extent can
be obtained at that place, must be referred to
the decree of this court affirming that part of
the decree, in conformity with tne opinion, as
to tbe "equivalent," for such portion of the
whole quantity as was not open to appropria-
tion when the ten thousand acrea were aur-
To make up such "equivalent" consistently
with the declared opinion of the court, the
party muat have the right of fllliu^ up his
claim in some mode, or he will obtain a less
quantity than has been confirmed to him by
our final decree; which the law declares shall
be nnal and eondusive between the parties, who
were the United Stales and the petitioner. 3
Story Laws U. S. IBBl. The latter must, there-
fore, have hia sixteen thousand acres some-
Bj; the eleventh section of the Act of 1S24,
provision is made for the case in enacting,
"That if in any case it should so happen that
the lands, tenements, or hereditaments decreed
to any claimant under the provisions of this
act, shnll have been sold by the United States
or otherwise disposed of; or if the same shall
not have been heretofore located; in each and
every such cose the party ma,y enter the like
quantity," etc., etc. 3 Story, 1963. This sec-
tion applies to each of the three surveys, pro-
Tided that either comes within its provisions,
by its appearing that any part thereof cannot
be obtained pursuant to our decree.
By the sixth section of the same act, the du-
ties to be performed after a final decision in
favor of the claimant, are prescribed; the clerk
of tills court is to give a copy of the decree un-
der the seal of the court to tbe party, who shall
deliver it to the surveyor of the State or terri-
tory, who shall cause the land to be surveyed,
and a pot thereof to be made out and returned
to the land-oRice: which shall entitle the party
to a patent. 3 Story, 1982. This section ap-
plies to confirmations where there is no inter-
fering claim, so that nothing remains to be done
by the court below; but when the case comer
under the eleventh section, then the svirveyor
493*] and the court 'below must both act: the
one to ascertain what portion of either of the
confirmed survey comes within its provisions,
and the other to decide on the return of the
■urveyor how much land, if any. is to be en-
tered at the proper land-office. In such cases
the court below actc under our nandata to exe-
117«
cute OUT deere* on thosa raattera wUd m-
mained for their future action; which is to bs
done in the same manner, pro tanto, as wba
Che whole ease was originally before it in the
first instance; according to the provisions of
the first section of the act, with this exceplios
— that they cannot act on any question of the
surveys which have been cnnfinaed by this
court. So far as our final decree goes, it noit
be taken to lie conclusive.
On receiving the mandate, the court behw
must "determine all questions arising (in its
execution) in relation to tbe extent, locality,
and boundaries of the said claim, or other mat-
ters connected therewith, fit and proper to be
heard and determined; and may, at diecretioa,
order disputed facts to be found hy « jury, and
otherwise proceed as directed in that Bection.*
3 Story, 1961. By this refen^nce to the U«,
the meaning of the mandate of this court di-
rected to the surveyor, commanding him to ds
and perform the acts enjoined on him by lav,
and to the court below, "to cause further to
be done therein, what of right, according to law
and justice, in conformity to the opinion oad
decree of thi* court, ought to be done" [ia en-
dent].
In Mitchell t. lite United SUteo, where the
lurt apprehended that some difficulty might
4;ur, a special mandate was made out on great
deliberation. B Peters, 761, 762. In Th*
United States v. Soulard, one was made to
meet the ease (10 Peters, 105, 106) ; and had it
appeared from the record in the case bctweea
the United States snd the petitioner that a
mandate more spettial thsn tbe one made out
would have been necessary, it would have been
done. The one ordered is, in substance, lb*
same as those, and with the references now
made will meet the prayer of the petitiod,
which we feel bound to grant for the reasons
set forth. The mandate which is annexed to
the petition was issued by tbe clcrl:, directed
liy to the court bcloiv. and no direction ia
given to the surveyor; it is therefore no execu-
tion of our final decree; and as it thus remains
unexecuted, it is not too late to h&ve it doM.
and requires no new order or decree *in [•4f •
any way modifying that which bna beea
rendered in the reported ceae.
It is therefore ordered that the clerlt of Ihi)
ourt make out a certificate of the final decree
leretofore rendered in the case of The Unitid
(tales V. Sibbald, and also a mnndaite acnxd-
ing to such final decree, the opinion of tit
'ourt in that case, and on theei' petitiono-
On consideration of the motion marie in this
'ause by Mr. Clarke, of counsel for the ai^l-
lant, on a prior day of the present term of Ibis
court, to wit, on Saturday, the 10th day of Fefc-
ruary, A. D. 1S3B, nud of the ar^^ment* d
counael thereupon had, it is now here consid-
ered, ordered and adjudged by this court, that
tbe clerk of this court make out a certificate d
the Snal decree heretofore rendered in the eaaa
' the United States v. Sibbald, and also «
mandate according to such final decree, ths
opinion of the coiL^ in that eoee, and on tUs
peUtion.
Peicn 1*
finiroLPs R AL. T, DouflLU* sr u.
.■■rxi
ind witbou
4»T>1 •JAVBS H. REYNOLDS, John B.
Bymt, uid William FarridK;, Merchant!,
trading under the flnn of ReTiioldi, Byrne A
Co,
JAMES 8. DOUGLABS, Thomas Q. SinEleton,
•nd Thomai GoLng.
Obltg»ttons of gner*Dtor whose name doee not
upcar on note guaranteed — demand and no-
tice— Inaolvencj, how proved.
Commercial ffearaei
that the guaranlor o:
name do«i not appear on
notice, where the maker
at hta matorltT : untew ur >.i>u auuw m usb du>-
tatned tome prejadlee hj want ol notice or a de-
■aqA on the maker of the note ead aotlM of
litlie Buarentor could pnjTe he had lultered
damafe bj the oeglect to make the demaoi] on the
■aaker ol the note, and to give notice, he could
onl; be discharged to the eiteut of the damage
•uitalDcd.
In order to enable (b« ftitj claiming auder a
■aaraDtf to recoter from the guaraotor bj a letter
or credit, be muit prore tbat notice of Iti accept-
ance bad been sItod [u a rcBionable time nCter the
letter ot credit had been accepted. This uotli'e
need doC be proved to bare been given In writing,
or In anr pirtlcular form; but ma; be Inferred
by the Jury from Cacti and
■hall warrant Bucb Infercnr
A recognition of the partli
«r tbelr obllgntlon to pn; aa KUBramDii unucr ■
supposed Ilabl11t7 whkb did not exlit from the
facta ot the cuae. aad of which facta the; were Ig-
norant, would not be ■ waiver of the notice tber
were entitled to have of the acceptance of their
Kuarantr.
A part; to a note entitled to notice maj waive
tbe notice hy a protnlse to see It paid, or an ac-
knowledgment tbat It muat be paid; or • promlae
that "be will let tbe matter to rlgbta;'' ot bv a
quBlltled promlte. having knowledge of the laches
of tbe holder.
A promlee to paj a debt bj the enaraotors, qual-
Ifled with a eondltlOD which was rejected, Is not a
waiver by the guarantor ot bla riglit to collce of
the acceptance of the gusrantr.
When the party In wliose favor a letter of credit
Is given afterwards becomes Insolvaut, and his In-
solvency Is known to tbe guarantors. It la oot
necessarr. In an action on a letter of credit, to
■rove tbat a demand of payment was msde an tbe
a letter of credit
IN error to the District Court of the United
States for the District of Mississippi.
This case was before the court at January
Term, 1833, on a writ of error prosecuted b;
the piafntiS's in the court below, and whs then
rsmanded to the District Court of Mississippi,
with directions to issue a venire facias de novo.
7 Peters, 113. The facts of the case are fully
Ctated in the case reported in 1833.
The plaintiffs again brought up the case, and
-IffB'] it was argued hj *Mr. Southard for the
filaintiffa In error, and by Mr. Joaea for the de-
sndant.
Mr. Juatlee H'Lean delivered the opinion of
the court;
This eaae is brought before this court by a
writ of error to tbe District Court of Hissis-
■Ippi.
Tba action is founded on the following guar-
— ty=
NoTB. — As to guaranties, eontlnulag and other
effect and constraclloa of, see note* to 6 Ii. ed. u.
8. IIS : B L. ed. C. S. 201 ; 10 L. ed. U. B. 10G8.
As to notice ot acceptance of gnaranty, see
note to 29 I. ed. D. B. 480.
Insolvency as an aicuie for fallnra to tlv* no-
Tort Gibeon, 27th lleoember, W7.
"Meisrs. Beynolds, Byrne A, Co.
"Qentlemen: Our friend, Mr. Chester Har-
in;;, to asaiat him in business, may require your
aid from time to time, either by acoeptaneei or
endorsement of his paper, or advances in eaah.
In order to save you from harm in so doing,
we do hereby bind ourselves, severally and
jointly, to be responsible to you, at any time,
for a sum not exceeding eight thousand doHare,
should the said Chester Haring (ail to do Sft
"Your obedient servants,
"James S. Douglaia,
"Gliomas G. Singleton,
Thomas Going."
On the trial, the plaintiffs proved that they
treated this paper as a continuing guaranty,
and from time to time, on the faith of it, ae-
cepted drafts, indorsed bills, and made advances
of money at the request of Haring. And an
account current was given in evidence, ahow-
ing a balance due to the plaintiffs from Chester
Haring on the 1st of July, 1828, of thirteen
thousand seven hundred and two dollars and
seventy-three cents; on Ist ot January, 1829, of
thirty-two thousand nine hundred and twenty
dollars fifty seven cente; and on the lit of July
in the eeme j'eor, of twenty-five thousand one
hundred and nine dollars and fifty-seven cents.
And eight bills of exchange, drawn by Haring
on the plaintiffs, amounting to eight thousand
doltara, and which were accepted and paid by
them in the year 1828, were also given in evi-
On the first of May, 1R2I9, it was proved that
Haring executed five promigsory notes, in tho
whole amounting to twenty-ftve thousand dol-
lars, which were indorsed by Daniel Greenleaf,
and also by the plaintiffs; and which were pay-
able in the months of November, December,
January, February and March, succeeding;
the proceeds of 'which notes, when dis. (*4BV
counted, were to be credited to Haring in the
general account.
On the lllh of April. 182B, Haring sold and
transferred to Daniel Greenleaf his meres nlile
establishment, which constituted the whole of
his property, and in August or September fol-
lowing, he died.
At the time this transfer was made, Green-
leaf gave a bond in the penalty of thirty-two
thousand dollars, with Thomas O. Singletoni
one of the guarantees, and others security, con-
ditioned that he would faithfully pny the debts
of Haring, as therein stated; and especially
after paying the home debts, "that he should
pay the sum of eight thousand dollars to the
securities and signers of a letter of credit to
Reynolds, Byrne & Co., in favor of the con-
cern of Chester Haring, for that amouut; or
otherwise relieve and exonerate the leeuritiee
and signers to said letters of credit." And on
tbe 24th of December following, Daniel Green-
leaf assigned to James 8. Douglass, another of
the guarantees, by deed of trust, on the condi-
tions stated therein, "all his debts, claims and
demands, either at law or In equity due, or to
become due." This assignment included the
property, ete., he received from Haring.
One of the witnesses examined stated that ha
heard James S. Douglass and Thomu Going
saj thn «oiuidved tha mbova usignmenta
SuriuiB CouHX Ok turn Ukitkd Siatkb.
would Indemnify tham tor thdr UkbiUty under
t-bc gtiBranty.
Thsra was A good deal of STideaM ta the
«■••, which, in con»iil«ring the qucationa of
law OB the instruetioiu, it ii not material la
This east wai brought before thie court on
Mrtaln exceptions, at the January Term, 1B33,
■t which tiioe the [allowing points wera ad-
Judged:
1. That the paper in question waj ■ eoutinu-
(ng guaranty, and was not discharged on the
payment of advances, acceptances and Indorse-
meote amounting to eight thousand dollars;
but that it covered future and successive ad-
rsnces, acceptancca and indorsements.
2. That to entitle the plaintiffi to recover oa
the guaranty, they must show that within a
reasouahie time they gave notiea of its accept-
3. That notice of the future and suecesaive
advances, acceptances and indorsements, after
the acceptance of the guaranty, was not neces-
sary.
4. That in case of nonpayment, the plaintiffs
ftOO*] were required to *sho« a demand of
Haring; and, within a reaaouable time, a notice
to the guarantees.
After the evidence was closed, the plaintiffs
moved the court to instruct the jury, "if they
believe that Chester Ha ring was insolvent pre-
vious to the maturity of any of the five prom-
issory notes drawn by Chester Haring, (bited
the 1st May, 18i!9j and tliat these notes were
Indorsed upon the faith of the letter of credit
by the plaintiOs, then such previous insolvency
rendered it unneceeeiry for the plaintiffs to
give the defendants, as guarontori, notice of a
demand upon sod refusal by Cheeter Haring to
pay the said notes; and the plaintiffs are en-
titled to reoover. But the court refuaed to
eharge as requested, and charged the Jury that
the insolvency of Chester Haring could be
E roved only by a record of the insolvency, or
y admission of the defendants, aud not by
common rumor or hearsay evidence."
This instruction was incautiously drawn, and
Its language is open to criticiam. It would
sepm at the first view to place the right of the
plaintiffs to recover on the fact of Haring'a in-
solvency. This would dispense with notice of
the acceptance of the guaranty, and with all
evidence of advances of money by the plain-
tiffs, and of acceptance! and indorsemenls un-
der it, except the five notes referred to. But
such could not have been the meaning of the
instruction, as understood by the counsel con-
cerned in the case and by tha court. Much
tvidenoe had been given of advances of
money, of acceptaneea and of indorsementa on
tbe faith of the guaranty; and also evidence
of facts from which the jury might, in the ex-
ercise of their discretion, infer a notice to the
defendants that the guaranty had been accepted.
In the view of these facts, it cannot be sup-
posed that the plaintiffs would ask the court to
Instruct the Jury to find in their favor, aside
from all the other evidence in the ease, if the
insolvency of Haling should be utisfactorily
ealablished.
Tbe instruction was undoubtedly intended
t« cover tbe objection that no demand had
been Dwda «f Ha/ins on bit failura to pay, nor
iiii
notiea given to tha defendanta. An4 Oi* «
the jury ahould find the note* referred to hfti
been Indoraed on the faith of tha letter of erod-
it, the previous insolvencv of Raring rendarW
notice of s demand on him unnecessary; aad,
consequently, the want of thia notlM watt
tuted no objection to the plaintlfTs' recovcn.
That the court conddered the inatroetioa £■
thia li^t, ia clear from the qnallAcation wUrk
they aiuMXed to it. Qy charging Uw jnrr tbat
the inaolveney of Haring could m prorea vmlj
by the admitslmi of the defendanta, *or (*&•!
Ire record evidence, the court seem to eotisider
if the fact of insolvency were legally made •at,
demand and notice were unnecessary.
Although the objection to the atniettiro «f
tbe prayer is not without forea, yet we ar« ia-
clined to thiulc that if the Instmction had t —
recovery, independent of all other ovidoBeo !■
the case.
In this part of the record, tbe c,
fairly raised whether the iuolvency of 1
either prior to or at the tlma irf p«ymeat, «
excuse the plaintiffs from making a demaad •■
him, snd giving notice to tbe gvarantoaa.
At the death of Haring, the notw ^ves bj
him on the lat May, IBZB, and indonad ^
Qreenleaf, were not due. And theae promia-
sory notes, to have had an inflnenca In tne e—.
under tbe instruction, must have been Indoroed
by the plaintiffs on the faith of the guaranty.
An objection ia made that these notes groatly
exceed m amount the guaranty, and, eoasa
Suently, that they could not nave been in-
orsed on the credit of tha guaranteoa. Tho
same objection is urged against the variooa
balances, which excrad the amount of tbe
guaranty as stated in the account eurrent. And
it is contended that to bind the guaranteea, tho
advance!, acceptancea and Indorsements, al-
though made at successive periods on the faith
of the guaranty, must not exceed it In awoimt.
If this objection were well founded, it could
not affect the right of the plaintiffs. They bava
brought their action on the guaranty, and ex-
hibit eight hilts of exchange, amounting to
eight thousand dollars, which they aver wen
accepted and paid by them on the faith of tbo
guaranty.
The queation aa to tha Uability of the gnatko-
tces, under acceptances and indortements, for *
■urn exceeding eight thousand dollar*, does aot,
therefore, arise in this case; and it Is nnB«e«a-
sarf to consider it. The advances whieh wera
made from time to time, aud also the accept-
ances and indorsements on the credit of the
guaranty, go to ahow how it waa considered
and treated by the plaintiffs. And It waa a
question for the Jury to determine, whetha
tne advances, acceptances and indorsementa, aa
allied by the plaintiffs, wero made undtf tbe
guaranty.
*If tbs Insolvency of Haring was a [*••!
material fact in the case, how was It to be
proved? Could It be proved only by record •*!•
dence, or bv the admissions of the defendant^
aa decided by the District Court T No roaaoo is
perceived for this rule^ and there la no prindpla
of Uw that suitains it. Tha inaolvsoey of Har-
IK>S
RBrifoi.D8 ET AL. r. DoDOLua ■
■ng ahoitld be proved in the (aine manner ma
any other ftu-t in the cause. Wai be without
Copertj, and unable to pay the demandE agaitist
m r There can be no difficulty in showing hii
circuntetancpa by competent proof.
But daei the inaolvency oF Baring, if it b(
eatabliahcd, e.icuae the failure to make a demand
on him at the maturity of his note*, and to
give notice to the guarantees.
In the case of Oibbs t. Cannon, B Serg. A
Rawle, 108, it was held thftt on a guaranty of
a promissory note, drawn and indorsed by oth
ert, if the drawer and indorser are insolvent
when the note becomes due, this would, prima
facie, be evidence that the guarantor was not
prejudiced; and therefore the giving him notice
of nonpayment, is, in such case, dispenspd
with. And in the case of Halbrow *. Wilkins,
1 Bam. & Cress. 10, the court say if a
guarantor of a bill be informed, before it is due,
of the insolvency of the acceptors, and tliat the
plaintiff looked to him for payment; it is i '
necessary to prove presentment and notice
nonpayment.
In the case of Warrington et al. v. Furbor
and Warrington, 8 East, Z42, Lord Ellen-
borough says the same strictness of proof it
not necessary to chnrge the guarantees, as would
have been necessary to support an action upon
tbc bill itself, where, by the law merchant,
demand upon and refuBol by the acceptors mu!
have been proved in order to charge any othi
party upon the bill ; and this, notwithstanding
the bankruptcy of the acceptors. But this '~
not necessary to charge guarantees, whoinsu
as it were, the solvency of the principals; ar
therefore, if the latter became banlcrupt a
notoriously Insolvent, it is the same as if they
were dead; and it is nugatory to go tbrougb
the ceremony of making a demand upon them.
Mr. Justice Lawrence, in the same case, Bays
that, although proof of a demand on the
ceptors, who had become bankrupts, was
necessary to charge the guarantees, yet that the
letter were not prevented from Bho\ving that
they ought not to have been called upnn at all;
what for the principal debtor* could have paid
the lull if demanded of them. And Mr. Justi
Blane also says, in the same case, there
need of the same proof to charge a guaranty, as
503*] to 'charge a party whose n.tme fs upon
the bill of exchange; for it is sutficient, aa
wainst the former, to show that the holder of
the bill could not have obtained the money by
making a demand upon the bill.
In the third volume of bla Comnentariea
(123), Chancellor Kent sayB, it has been held
that the guarantor of a note could be dicharged
ij the laches of the holder, as by neglect to
make demand of payment of the maker, and
give notice of nonpayment to the guarantor;
provided the maker was solvent when the note
fell due, and became insolvent afterwards. The
rule is not so strict as in the case of mere nego-
tiable paper, and the neglect to give notice must
have produced some loss or prejudice to the
gvaraotor.
The same principle Is laid down in the fol-
lowing eases: Phillips v. Astling, i Taunt.
806; Swinvard v. Bowei, S M. A S. 62; Van
Wert r. Woolley, 8 Bam. ft Cress. 43S.
The rule ia well settled that the guaranty of a
MromisaoTT not*, whoM nun* does not appear
» Zi-cd.
on the note, is bound without notice, wbera tha
maker of the note was insolvent at its maturitji
That hia liability continues, unless he can show
he has sustained some prejudice by want of
notice of a demand on the maker of tlie note,
and nonpayment.
In the case before us, there no pretense that
the defendants have sustained any injury from
a neglect of the plaintiffs to make a demand on
Chester Haring for payment of the balance
against him, in the account current; ot for the
amount paid in discharge of the eight billa of
exchan^ referred to in the declaration.
But if the defendants could prove they had
suffered damage by the neglect of the p'sintiffs
to make the demand and give notice, according
to the case of Vanwart v. Woolley, 3 Barn. &
Cress. 439, they could only be discharged to
the extent of the damage sustained.
As before remarked, Hnring died before any
of the promissory notes dated lat May, 1B29,
became due; and, consequently, no demand on
him for the payment of these notes could be
made. From the facts in the case, it appears
that the defendants resided in Port Gibson,
the place where Hsring lived; and it can-
not be doubted that they bad knowledge of his
death.
From these considerations, it is clear that tbe
District Court erred in refusing to give the Drst
instruction asked by the plaintiffs.
The plaintifTs also reoueeted the court to
charge that if the jury believed that Chester
Haring transferred all his property to Daniel
'Greenleef, on the 11th April, I82B, [*50«
and that Daniel Greentenf at that time was en-
gaged to pay all the debta of the said firm, and
to aecure the defendants from their liability on
the letter of guaranty; and that Daniel Green-
leaf on 24th December, 1829, by deed of truat
to one of tbe defendants, Jamea S. Douglass,
transferred claims to the amount of twenty-
ight or twenty nine thousand dollars, to secure
the defendants for their liability on said letter
of credit; then it is not necessary for the ptaio-
tiffs to prove that the defendants were duly no-
tilled of their liability on said letter of cridit;
which charge the court refused to give.
The fscts hypotbetically stated as the basis of
this instruction, are such as if found by tbe
jury, must have had influence on their minds;
for they conduce to show that the defendaota
had received knowledge of their reeponsibility
under the letter of credit, and of the circum-
stances of Haring. But as the instruction doe*
ot necessarily import the insolvency of Haring,
'hich, or his death, can atone excuse the plain-
tiffs from making a demand on liim, and giving
notice to the defendants of bis failure to pay ;
the court did not err in declining to. give the
)n. The facts supposed in the instruc-
tion mi^ht be admitted; and yet tbe insolvency
of Hanng, at some subsequent period, would
It follow as a consequence.
Several instructions were given by tbe court,
at the request of the defendants' counsel, to
which the ptaintiffa excepted, and we will now
consider them.
And first, the court charged the jury, that to
entitle the plaintiffs to recover on said letter of
credit, they must prove that notice had been
given in a reasonable time after said letter ol
credit bad been aoceptad by them to thedafend-
llIS
SUI-BKIU COUKT or THK VBttSD SrAm.
urti, thftt the utnc had been accepted. This
instruction, being in conformit; to the ruU
foruarlf ]>id down by this court in this case
was properij given. This notice need not be
proTed to have been given in writing, or ic
particular form, but may be inferred by the
jurj from facts and eircumstftnoes which sIikII
wamiDt such inference.
The court sJso instructed tb« jury that if they
believed from the evidence that two of the de-
fendants. Going and Singleton, admitted that
the debt sued for wks a just debt, and that the
■aid two defendants stated that they would try
to arrange the paymentthereof out of the funds
or effects that bad been assigned by Daniel
OrMnleaf to James 8. Douglass; and that the
admission and declaration were made in 1830,
and that at eaid period no notice bad been given
BOB*] by *the plaintiffs to the defendants that
■aid guaranty had been accepted by them; and
that said defendants were uninformed at the
tims of such admiesion and declaration of such
failura to give such notice; that then such ad-
mission and declaration do not operate in law a
waiver of, and dispense with the nacEsaltj of
sneh notice.
Thii instroetion must have been hastily
drawn; but we understand it ss laying down
the principle that a recognition of their obliga-
tion to pay, by the defendants, under a eup-
posed liability which did not eiiet, from tne
facts of the case, and of which facts they were
i^oraat, would not be a waiver of the notice.
& this view, the instruction was correctly
given.
And the court further instructed the jury
that in the absence of evidence of notice given
in a reasonable time by the plaintiffs, that said
letter of credit had been accepted by them, the
mere acknowledgment by the defendants that
the debt sued for is a just debt, does not dis-
pense with the necessity of such notice; but
that to dispense with such notice, there must
be evidpnce of an express and unconditional
promise by the defendants to pay, made under
a full knowledge that such notice had not been
This instruction U not founded upon the sup-
position that the defendants were ignorant of
the necessity of a notice to bind them; and this
ignorance, therefore, cannot be presumed. The
proposition, then, is, that although the defend-
anta knew that a notice was necessary to bind
them, and which bad not been given; an ac-
knowled^ent of the debt and a promise to
pay, which is not express snd unconditional,
would not dispense with notice. In giving this
instruction, we think the court erred, A party
to a note entitled to notice, may naive it by a
promise to see it paid; or an acknowledgment
that it must be paid; or a promise that "he will
B«t the matter to rights;" or by a qualified
promlae, having knowledge of the laches of the
holder. Hopes v. Alder, 6 East, 16; Selw. N.
P. 123; Haddock t. Beery, T East, 236; Ro^rs
r. Stephens, 2 T. R. 713; Anson v. Baily, Bui.
K. P. 276. In the case of Thornton ». Wynn,
1 Wheat. 1S3, this court say, an acknowledg-
meat of his liability, by the indorser of a bill
or note, and knowledge of his discharge by the
laches of the holder, will amount to a waiver of
Botioa.
«■>«
In thetr fourth inatmetlai tha eonrt MV that
a qualified or conditional promise, made by the
defendants to pay the debt sued for, wUdi
was rejected by the plaintiffs or their agent, ii
not a waiver of 'the necessary notice [■t*a
from the plaiotifiTs to the defendants, thmt eaid
letter of credit had been accepted by them.
This instruction is somewhat vague in its lan-
guage; but if it is to be considered aa laymg
down the rule that a promise to pay the debt,
qualined with a condition which was rejected
b^ the plaintiffs, or their agent, the court wen
right tn saying that it was not « waiver of la-
in their fifth and last instruction, the coot
charge the jury that to enable the plaintiffs to
recover on said letter of credit they must prors
that a demand of payment had been n^e «f
Chester Earing, the principal debtor, of the
debt sued for; and in case of nonpsyment, m-
ties should have been given in a reasonaUs
time, to the defendants, and on failure of waA
proof, the defendants are in Isw discharged.
This Instruction rests upon the neceaaitj of a
nonal demand of Hanng by the plaintjb.
laa been already shown that this demsad
was unnecessary ia case of Baring's inaolven-
cy; tbe instruction was therefore, on the fa«ti
in the c
Ur. Justice Baldwin dissented.
This cause came on to be heard on tk« ttaa-
script of the record from tbt District Court of
the United States for the District of HUsissip-
pl, and was argued by counsel; on conaideration
whereof, it is now here adiudged and orderad
by this court that the judgment of the said
DiBlrict Court in this cause be, and the aamo ■
hereby reversed and annulled; and that tUs
cause he, and the ssme is hereby remanded to
the said District Court, with directiona to award
a vei^ro facias de novo.
«-ezamination of decision of State e
_ Ion of the Judlclsrr Act wb«
the qDpgtlOD was whether the sppetlre was a sIitc
Tbe provIilODS of tbe tmty br wklrb LoglilBBa
was ceded to tbe Ualted Stales, and In which was a
susmntv of Che oropertr of persons resldlnf at
the time ot tbe cenlon wlthla the terrltorr ot Lm*-
■lins, aia; b« enforced la tbe eoarta of the State rf
Ulssourl. The sllegallon that the treaty has bM
iHsa
CHonta V. UAMnun.
ERKOB to tbe Bupr«m« Court of the TUrd
Jndielal DIftrlet a< tbu SUte of MiMourL
In 1820, Mftrgnerite, » womkii of color, bj
h«r next friend, Km* Burebeau, filed k dec-
tantion in the <aKiilt Court for the Count? of
JefTeTMii, Id the State of Mieaouri, alleging
that Pierre Choteau, Sen., had beat and bniUed
her, and nnlawfullj detuned her in priton,
Bgainit her will, etc. The object of thii pro-
ceeding waj to eitablieh tliat the complainant,
the dcecendant of an Indian woman, Marie
SetpiOD, was free, and wae unlawfully held a*
ft wave bj the defendant.
Pierre Choteau appeared to the auit, and
S leaded that Hargoente waa a ilave, in hit law-
iil poaaession, and ao detained by him.
The caae wae eubmitted to a jury in Jeffer«ou
County, aud a verdict wae found for tbe plain-
tiff, which was afterwards set aaide by the court,
and a new trial ordered. The auit waa after-
wM^ tried before tbe aaiae coort, and a ver-
dict waa given for the defendant. The plaintiff
flled a bill of exceptione; and on a writ of error
to the Supreme Court of Missouri, the judg-
ment of the Qrcuit Court waa reversed, and
tbe cause waa remanded to that court. It waa
ajterwarda remanded to the Qrcuit Court of
St. Charles County, and waa there tried again
before a jury; and a verdict and judgment
were rendered in favor of tbe plaintiff. The
defendant, on the trial, moved the court to in-
struct tbe jury:
■ 08*j 'let. If the jury And from the evi-
dence that the mother of Marie Scipion waa an
Indian woman, of the Natcfaex nation, talien
eftptive in war by the French; and that she and
her deacendanta were publicly and notoriously
held as ilavea, in the province of Louiaiana,
while the same waa held by the French, prior
to the year 1700; and that she and her deacend-
anta were ao publioly and notoriously held as
alftvea, without iatemiptlon, in the said prov-
faiee, until the 30th April, 1803, and thence to
the time of the commencement of this suit, the
jury ought to find for the defendant.
lU. If the jury find from the evidence that
the mother of Marie Scipion waa an Indian
woman, taken captive In war, and reduced to
al»very by the French; and that from tbe time
of her capture she and her descendants were
publicly and notoriously held aa slaves, in the
prorince of Louiaiana, while the same was held
by the French, before tbe year 1769, and after-
wards while the same province was in the pos-
■eeslon of, and held by Spain and France, un-
til the 30th day of April, 1S03, and tbenee un-
til the commencetnent of this suit, they ought
to find for the defendant.
Sd. That Indiana taken captive in war by
the French might lawfully be reduced and held
in slavery in the province of Louisiana, whilst
it waa held bj| the crown of France.
4th. If the jurf find from the evidence that
the aald Marie Scipion waa bom while Eier moth-
er waa so held in slavery, within the province
of Louiaiana, while the aame waa held by tbe
French, prior to tbe year 17S&; that the said
mother was held in slavery, in the prorince of
Louisiana, from the time of her birth until the
30th April, 1803, and thenca until the time of
ber death, than the jui; ought to find for the
defendant.
• Jury
SUl If the Jmy find fiom tbi evidence tlftt
Marie Boipion waa bom while her mother waa
held in slavery, and that she, the said Marie
Scipion, waa publicly and notorioualy held aa
a slave, from the time of her birth until her
death, within the territory ceded to the United
States by the treaty l>etween the United Statea
of America and the French Republic, bearing
daU tbe 30th April, 1803, and that, at the date
of aaid treaty, the said Marie Scipion waa io
held aa a slave, within the aaid ceded territory,
by an inhabitant thereof, then the jury ought
to find for the defendant.
The court refused to give these inatmctlont,
and the defendant sued out a writ of error to
the Supreme Court of Missouri, where the Judg-
ment of the Circuit Court of Jefi^eraon County
waa affirmed.
'The defendant then sued out the (*B09
writ of error to the Supreme Court of tbe Unit-
ed Statea, under the 2fith section of the Judicia-
ry Act of 1780, to the Supreme Court of Mis-
Mr. Butler, for the defendant in error, moved
to dismiss the writ of error on the ground that
the case is not within tbe provisions of the ZSth
section of the Judiciary Act.
Ue contended that no question had arisen In
tbe case in which this court could be called on
to interfere with ita reriaing powera. The
plaintiff in error claimed that the Treaty of
Louisiana of 30th April, 1803, protected him in
his property in the defendant, as she was hia
slave The question tiefore the Circuit Court,
and which was submitted to tbe Jury, waa
whether the plaintiff waa a slave; and Ue j
found that she was free.
Under the 2Sth section of the Judicia^ Act,
the jurisdiction of this court in writs of error
to the supreme courts of tbe State, prevails in
those cases in which a treaty of the United
Statea haa been drawn in question, and has
been misconstrued, or a statute of tbe United
States has been misconstrued or disregarded.
It haa been supposed that tbis suit is within
tbe class of casea cognizable in the Supreme
Court of tbe United Statea, aa the defendant
claimed Marguerite as a slave, under the Loui-
aiana Treaty.
Tbe first instruction has no reference to the
treaty. The counsel sought to have the in-
structions of the court that if the plaintiff was
always held aa a alave, up to tbe time of the
treaty, she continued such. The court held
that sbe could not be a slave. Whether this
opinion was rigbt or not, the construction of
the treaty was not drawn in question. The
protection of tbe treaty was not denied, and
the decision of the court waa auch as did not
make the ease within its proviaiona. Tlia
plaintiff liad no property in Marguerite wliicb
the treaty operated upon.
But thia court decided that the general pro-
iolated by t.
xd V. Aspasia, 6 Peters, 62S.
In the caae of Crowelt v. Randall, tO Peters,
3S8, there ia a review of all the eases on the
question of the juriedlction of this lourt, in
from Uh higbeat court of the States at
HIS
OouBT W THE UniTEu Statu.
Um Unrted 8Ut«s. In that, and in alt the other
eatti, the law U laid down to be that thi
peltate juriBdiction of this court can onlj be
510*] eustained when *it appears that the
qudtion over which the jurisdiction exists
must appear to have been brought before the
court and decided according to the proviHiona
of the twenty-fifth section, or that by clear and
neceBBary intendment the question must have
arisen and must have been decided.
The very point involved in this case has been
decided. In the ease of The Mayor of New Or-
loana t. De Armas, it was held that the protec-
tion of the treaty existed, and its provisions were
applicable and would be enforced by the courts
of the United States, until the territory be-
came a State; afterwards, that protection was
given by the constitution and laws of the
State. If such a case as this could be enter-
tained, thsQ alt questions of property arising
in the States erected in the country acquired
by the United States by the Louisiana trputy
could lie brought here, as the guaranty of the
treaty applies to alt property.
Mr. Key, with whom was Mr, Benton, op-
posed the motion. He contended tbiit llie de-
cision of this court in Crowell v. liamhill. 10
Pete'rs, 388, did not in any way enlarj-e the
principles which bad prevailed before. All
the court are required to do before tliey titkc
jurisdiction, is to see that tlie ca^e is biii')> us
presented a question cognizable by thp romt.
The court, if its consideration was essi-nlial to
the decision of the cause, will hold tlint it di:l
arise, and was decided. He argued that the
Treaty of Louisiana must have been considered
by the Supreme Court of Louisiana in
Mr. Justice Story said that it had t>een
thought that the decisions of the court had
Iieen misunderstood ; and the court, in th(
case of Crowell v. Randall, 10 Peters, had re-
vised all the cases and bad laid down the law
as they wished it should be universally under
The motion to dismiss the case was sustained.
Bll»] •MANUEL GARCIA, Plaintiff in Error,
SAMUEL LEE.
Constitutionality of Act of Mareh 26, 1804—
province of executive and legislative branches
of governmeot.
Tbe decision of the eoart tn tbe ease of Foster
and EUm v. Neltson, S Peters, 2G4, b; wblcb Rrsnts
made br the crown or Spain. s.fter the Tii.-Bty of
at. tldefoDiO, of lands wpst or the River Perdldo,
aod which were br the United SUtes declared to
be within the territory of LouIsIbds ceded bj
France to the Colted Btstea, were declared void,
•SlriDed.
Congress, In order to Eunrd against ImposEtlon.
declared, br the Isw of 1S04, that all Kraols ot luid
made by the Spanish authorities, la tbe territory
... . -■ ■■ g Fenlido. after the date ot tbe Treaty
' """■"' '" " "■' "" -ceptlng
dfclded In the ease of Footer and FTlam t. Helm
This court. In that case, decided that tbe «it>tta
ol iHuudary between the Ualti-d Sintes and &u>
was a qiiealloD for the political departmeols rftto
gOYommpnt; that Ihe leclslgtlve and — -
braorhes harlD; decided the queEtloo. t
of the United States are bound to ' -
sry determlaed by them la th<
Eranta made by tne Kpnolsh aot-
whlch, Bceordlne to tbls boundnry
Is tbe United States, gs" no title '
Id apposition to Itiaae claiming ui
States, unless tbe Sraolsfa grants
and Its true
0 be round in ttie
ceded the nortOos lo i
ling to tbe fair Import or
ihall lie ritlEe^
or St. lldpfi
thOM to BC
20th, ISOS.
The contrOTeroy In relation to tbe country lying
between tbe Ulosfssliipi and ttte Terdldo rivers, and
ictaal seltlers acquired before December
the validity of the 'grants made by
llspnted territory, after tbe eesalon ..
o the United BUtea, were caretnllj examined and
e eesalon of Lou la la di
would be valid, if llie tt
der the domlnloa of 11
In de.llllQg the case of
held tbai even If this a
in the territory In quest
tiioty luelf, but tbat they
^ flcatlon '
t be th ._,
hall be pasaed. the
.jrefiard the eiistlng ._ _ __ ._, _
Jett." AfterwnrdB. in Ihe case of The United Siatei
-F. Perchfmnn. 7 I'eters. 89. In reviewing the vol*
if Ihe eighth article o( tbe treaty, the court, lar
he reasona there asalgaed. came to a dilereut n*-
luHloii, and beld tbat the words were word) <l
)rcBent eonflrumi'on, hy the treaty where tta
and had been rlgbtfulij granted before tbe tta-
iluQ ; and that it did not need the aid o( an set
if Conitreaa to ratify and confirm tbe grmnt. 1U
isngiiege nan. however, applied by the court, oal
•£ I
inply to grants made
scrlprion. It waa
Spanish I
It la or Bu
! time ot tbe
aade; and wbere IW
uadouLted rlebt t>
.Blon In 1810. {*•>■
* 1 by tfc
territory of Louial
et at. e Peters. Hi;
by lue eourt. witb i»t
treaty, whlcb !■ «>
In the District Court of Louialsn*, tk
plsintiff in error, ■ resident in Cuba, i» Ik
26th January, lB3fl, filed a petition atoting tW
on the 1st of September, 1B06, he purchased W
the Spanish government, for a valuable cobbI^
eration, and was put into posseBsioa rf ttt
same, fifteen thousand arpents of land, #
vided into three tracts or parcela, having s^
marks and bounds aa are laid down in tbetHf
ina! plots aad surveys annexed t« Um ^
of mI« hy Jnas Venturk Uormles, then tntend-
Mit of tha Sponiih Bovemment, dated the Gth
d»j of September, 1808. Certified copiei of
the deed of Bale, plota, Kid lurveys were >n-
aezed to the petition.
The petition stated that Samuel Lee, a real-
dent in tha Parish of Feliciana, and a eitiieti
of the State, hod taken posaeBsion of ten thou-
aand arpenti, part of the said grant, which is
altuated in the now State of Louisiana, end rc-
ftuei to deliver up the same. The petitioner
praja to be put in poasession of the said laud,
«tc
On the ITtb day of Ma^, I83S. Samuel Lee
filed an answer and exemption to thr plaintilf's
petition in whicli he denied "all and singular the
•trict and legal proof of the same; and espe-
ciall/ doea he denj anj jurisdiction of the
Spanlifa government over the territory in
which the land claimed by the plaintiff ii litu-
tttd at the time the ^ant exhibited by Iiim
was mnde, or at any time subsequent thereto,
and strictly denies the right of the said govern-
BIS*] ment, *or the officers thereof, to make
grants or sales of land therein."
On the 27tb of February, 1S37, the District
Court of Louisiana entered a judgment In
favor of the defendant, and the plaintiff proM-
cuted this appeal.
At the heariiiK of this ease in the District
Court, certain ducumentary evidence was of-
fered by the plaintiff, which was not received
by the court) and the plaintiff took an excep-
tion to the rejrction of the same. This bill of
exceptions, containing all the documents of-
fered and rejected in the oourt below, waa sent
up with the record.
The case waa argued by Mr. ITCaleb and
Mr. Southard for the plaintiff in error, and by
tSr. JODM for the defendant.
The counsel for the plaintiff in error asked
■ revertal of the judgment of the District
Court of Louisiana on the following grounds:
lat. Thegrantor sale to the plaintiff waa made
at a period when the territory between the
Mississippi and Perdido was in the actual pos-
■easlon, and under tht jurisdiction and sover-
eignty of the crown of Bpain.
2d. Great Britain was the first nation that
eseTcived authority over the said territory In a
BOvereign rapacity; France asserted pretensions
to It until the ratification of the Treaty of 17S3.
by which she finally and forever surrendered
them to Great Britain; and consequently, the
said territory could not have been, and was
never intended to be ceded by France to Spain,
by • Treaty of the same date, to wit, 1763, as
part of Louisiana.
3d. The said territory was never called apart
of Louisiana by any nation except France; and
after the final relinquishment at all her right
and title, it was owned and possessed by Great
Britain, as part of her West Florida, until the
Treaty of 1783; when It waa ceded by her as
BBeh to Spain ai a conqnered country.
4tb. The said territory formed no part of
EjOaisiana, as retroceded t>y Spain to France by
tbe Treaty of St. Ildefonao of IBOO, nor of
IiOuiaianB, aa ceded t^ Prance to the govern-
ment of the United BUtea by tha Treaty of
Paria of 18(0.
• <b ad.
finally relinquished hat
aald property until the rati-
fication of the Treaty of 1619, which was ex-
pressly a treaty for the settlement of all tka
pretensions of the governments of the United
States and Spain; and which expressly oon-
firms 'all grants made by the Spanish [*ftl4
government prior to the 24th of January, 1818,
situated in all the territoriea to the eastward
of the Miasiasippi, known by the name of Eut
and West Florida.
Mr. Jones, for the defendant, contended that.
The only exception to the decision of Uw
District Court ia on a point of evidence, name-
ly, the admissibility, aa eridence to the jury,
' "'rtain papers, seventeen In number.
introduction, waa to expound the meaning, op-
erations, and effect of the treaty concluded at
Paris, April 30, 1803, b^ which Prance eeded
to this country the province of Louisiana.
The particular question which tboee paper*
were intended to affect was one purely of the
true construction of the treaty, and that waa
whether the eastern limit of the ceded territory
bounded by the Mississippi, or extended tv
between the governments of Spain and tb*
United States, but practically solved by the lat-
ter, who took actual posaeasion of the territory
within the disputed limits, as part and parcel
of the territory ceded by the treaty ; definitively
Incorporated the whole of it with tbe terri-
tory of the United States, and annexed a part
of it to the State of Louisiana; all under the
sole authority of that treaty, and with no other
title or pretenae of title whatever.
We maintain the decision of the District
Court, ruling out tbeee papers aa evidence, vpoa
the fallowing grounds:
1. If this were a queation of fact proper to be
left to a jury, on extrinsic evidence, the paper*
in question were not competent evidence of the
facL
Z. It la not now, nor was it ever such a quea-
tion; but was alwaya, so long aa It remained
open to any sort of controversy, one of con-
struction, completely determinable by the vorda
of the treaty, either taken by itself, or in con-
nection with cireumstancea of equal notoriety,
and equally within the proper sphere of judid-
3. Maintaining, as we do, the suffideaey irf
the reasons upon which the claim to this terri-
tory was originally asserted on behalf of the
United States, wa nevertheless deny that it is
or ever was a queation of judicature, and af-
firm that as a question of sovereign right be-
*tween the two nations. It came original- [*ftl5
ly, and haa ever remained within tbe peculiar
OUT foreign relaOons, and with the highest
functions of sovereignty in assertina and main-
taining national rights against foreign power*;
and as such a question, that It has bean long
ago conclusively terminated and settled by a
aeries of public acta. In which the executive
and le^slative powers of the government have
concurred to assert and establish tbe teiritorial
ivareigstf and riilits of tha nation, by tha
lilt
CIS
SOFXEIIK COUBT or TUB URITD BTATI
■upreme authority of the nation; an ftuthoritf
woich no prirkte righti of propertj, founded
in anj conflicting rules of municipal law, can
oppose; which is supreme over all the people
and al] the tribunals of the country, and which
thia court has judicially recognized and de-
ferred to aa supreme and incontrovertible.
Hr. Chief Justice Tanay delivered tlia o^-
ion of the court:
In this case the appellant claims ten thousand
arpents of land, being part of a grant for fifteen
thousand arpents, which he alleges in his peti-
tion were granted to htm b; the Spanish author-
ities In 1806. The laud is situated in the State
of Louisiana, and in the territory lying north
of the Iberville, and between the Perdido and
the Mississippi, which was so long a subject of
controversy Between the United States and
Spain, and which was finally settled by the cea-
■ion of the Floridas to the United States by the
Treaty of February £2, 1619.
It is well known aa a matter of history that
the executive and legislative departments of
our government have continually insisted that
the true boundary of Louisiana aa we acquired
It by the Treaty with France of the 30th of
April, 1803, extended to the Perdido; that the
claim of the United States was disputed by
Spain; and that she refused to deliver the ter-
ritory, and claimed a right t« exercise the pow-
ers of government over it: which claim the
United States denied. On the 29th of March,
1804, Congress passed a law dividing Louisiana
into two territorial government*, and In order
to protect the interests of the United States
in the disputed territory, the 14th section of
this law enacta that all grants for lands within
the territories ceded by the French republic to
the United States, by the Treaty of the SOth
April, 1803, the title whereof was at the date of
the Treaty of St. Ildefonso In the crown, gov-
ernment or nation of Spain, and every act and
proceeding subsequent thereto, of whatsoever
BlS'l 'nature, towards the obtaining of any
grant, title or claim to such lands, and under
whatsoever authority transacted or pretended,
be, and the same are hereby declared to be,
and to have been from the beginning, null and
TOid, and of no effect in law or in equity." The
titles of actual settlers acquired before the
SOth of December, 1803, are excepted by a pro-
viso from the operation of this section.
The grant under which the appellant Garcia
claims, falls within the provisionB of thia sec-
tion; and aa this law of Congress has never
bMn repealed or modified In relation to grants
made by_ the Spanish authorities, the appellant
has no title at law or In equity; unless it can be
shown that the act of Congreai in question
upon some ground or other, Is void and inop-
erative; and that the courts of the United
States are bound to recognize a title acquired in
opposition to its proviaiona.
The questions presented by the record before
na are not new in this court. They were ex-
amined and considered In the caae of Foster
and Elam v. Neilson, decided here in IS2S, and
reported In & Peters, 264. In that ease the
land in dispute waa granted by the Spanish
governor on Uie Ed of January, 1604, and
ratified by the King of Sp^n on the SVth of
May, ISM. The oontrovanr Is relation to the
countrr lying between the UltrtMlp^ aad tka
Perdido, and the ralidity of the granta m^m
by Spain in the disputed territoi? after tto
cession of Louisiana to the United States, ware
carefully examined and decided in that eaaa;
and aU of the facta and argument* neoeasaryta
a correct decision were then before the cooiL
They are subeUntially the nune with thoaa
now offered to support the claim of the appel-
lant, and are so fully set forth in the report ef
that ease that it is unnecessary here to 1 1 yiwl
them. This court then decided that the qnea-
tion of boundary between the United States
and Spain waa a question for the political de-
fiartments of the government; that the legia-
ative and executive branches having deei^d
the question, the courts of the United Statea
bound to regard tha boundary determined
cording to this boundary line, belonged t
United States, gave no title to the grantee*, ia
opposition to those claiming under the United
States, unless the Spanish grants were protaet-
ed by the subsequent arrangementa made ba>
tween the two governments; and that no auek
arrangements were to be found in the Tresty
of 1BI9, by which Spain ceded the Florida* t*
the United States, according to the fair import
*of its words and its true construction. ['S11
These positions have all been eontroverted ia
the argument at the bar in the case now before
us. But we do not think it necessary in de-
ciding the case to enter upon a discusaioQ of
the various topics pressed upon the attention of
the court, and shall content ourselves with ex-
tracting several portions of the opinion de-
livered by Chief Justice Marshall, in the «■••
of Foster and EIsm v. Neilson, in order to
show that all of the points now raised were
carefully considered and decided in the caae n-
ferred to. In page 309 of 2 vol. of Peten^
Reports, the Chief Justice states the opinion of
the court in the following words:
"After these aets of sovereign power (by tht
United States) over the territory in dispute, as-
serting the American construction of the treaty
by which the government claims it; to main-
tain the opposite constnTction in its own courts
would certainly be an anomaly in the hiatory
and practice of nations. If those departmenla
which are intrusted with the foreign int**-
couree of the nation, which assert and maintain
its Interests against foreign powers, have db-
equivocally asserted its rights of dominion over
a country of which it is in possession, and whidi
it claima under a treaty; if the Legislature has
acted on tha construction thus asserted, it is
not in ita own courts that this construction i* te
be denied. A question like thia, respecttag
boundaries of nations. Is, as has been truly said,
more a political than a legal question; and ia
its discussion the courts of every eountry moat
respect the pronounced will of the Legislature.
Had this suit been instituted immediately aftw
the passage of the act for extending the b*udi
of Louisiana, could the Spanish coostnictio* of
the Treaty of St. Ildefonso have been bmm-
tainedT Could the plsintilT have insiated tkat
the land did not lie in Louisiana, but in Wvt
Florida; that the oecupatloa of the eountty fy
the United SUtes was wrongful; and that Im
' title under • Spanish grant ntnst prevail, be-
ItiM
ckuw the act* of Congreai on the subject were
roundvil on a miBconstruction at the treutyt If
it be said tliat thia ststi^metit does not present
the question fsirly, because a plsiDtiff admits
tike authority of this court, let the parties he
changvil. If the Spsniab grantee had obtained
posmesaJoii, so as to be the defendant, would *
court of the United States maintain his title
under a Spanish grant, made subsequent to the
acquisition of Louisiana, singly on the princi-
ple that the Spanish construction of the Treatj
of St. IliipfoQso was right, and the American
construction wrong I Such a decision would,
SIS'] we think, *have subverted those prin-
ciples which govern the relations between the
Legislature ajid judicial depirtments, and mark
the limits of each.
"If the rights of the parties are In any de-
gree changed, that change must be produced
£7 the su^qiient arrangements made between
the two govt^mments."
After having thus fully expressed the opin-
ion that the court were bound to recognize the
boundary of I^uisiana, as insisted on by tha
I^egislature of the United States; and that the
American grants of land must prcvsil over
those made by the Spanish authorities, after
the date of the Treaty of St. Ildefonso, unless
"the rights of the parties had been changed by
subsequent arrangements mads between the
two governmi'ntBi" the court, in the same case
proceed to examine whether the validity of
these grants were recognized by the United
States, or provided for in the Treaty of 1810.
And after exnmining the articles of the treaty,
which had been relied on in the argument as
providing for the grants made by the Spanish
kutborities, the opinion of the court on that
psrt of the case is stated by the Chief Justice in
the following words: "It is not improbable
that terms were selected which might not com-
promise the dignity of either government, and
which each might understand, cousistently
«ith its former pretensions. Sut if a court of
tho United States would have been bound un-
der the state of thing existing on the signature
of the tresty, to consider the territory then com-
posing a part of the State of Louisiana as right-
fully belonging to the United States, it would
be difficult to construe this article into an ad-
mission that it belonged, rightfully, to His
Catholic Majesty." It had also been contended
In ai^ument in that esse that the exception of
certain large grants of land by name (which
haA been made by the Spanish government), in
the ratification of the treaty by Spain, implied
that other fair grants were to be obligatory on
the United States. But the court held other-
wise, and say: "The form of this raUflcatton
ought not. in their opinion, to change the natu-
ral construction of the words of the eighth arti-
cle, or extend them to embrace grants not other-
wise intended to be confirmed by it."
"An extreme solicitude to provide against
injury or inconvenience from the known exist-
ence of such larpe grants, by insisting upon a
declaration of theirabsotntenullity, can, in their
opinion, furnish no satisfactory proof that the
government meant to recognize the smalt grants
a.1 valid, which, <n every previous act and
K19*] struggle, *it had procl^med to be void,
as being for laods within the American tern-
• l! «d.
court in the case of Foster and Elam v. Ndl-
' son. It is true that upon another and dilTerent
point from those above mentioned, an opinion
expressed in that case was afterwards, upon in-
formation subsequently obtained, overruled;
and in order to prevent misconstruction, it may
be proper to state it. It was thisi The elghtn
article of the Treaty of 1818 declares that all
grants made before the 24th of January, 1818,
by the Spanish authorities, "shall be ratifi«l
and confirmed to the persons in possession of
the lends to tha same extent that the same
grants would be valid if the territories had re-
mained under the dominion of His Catholic
Majesty." And In deciding the case of Foster
and Elam v. Neilson, the court held that even
if this stipulation spplied to lands in the terri-
tory in question, yet the words used did not
import a present confirmation by virtue of the
tresty itself; but that they were words of con-
tract between the two nations, and that "the
Legislature must execute the contract;" "that
the ratification and confirmation which are
promised must be the act of the Legislature ;"
and "until such act shall be passed, the court
is not at liberty to disregard the existing laws
on the subject." Afterwards, in the case of
The United States v. Perchemsn, 7 Peters, 86,
in reviewing these words of the eighth article
of the treaty; the court, for the reasons then
assigned, came to a different conclusion, and
held that the words used were words of pres-
ent confirmation by the treaty, where the land
had been rightfully granted before the cession;
and that it did not need the aid of an act of
Congress to ratify and confirm the grant. This
language was, however, applied by the court,
and intended to apply to grants made in a ter-
ritory which belonged to tSpain at the time of
the grant. The case before the court was ons
of that description. It was in relation to a
grant of land in Florida, which unquestionably
belonged to Spain at the time the grant was
made, and where the Spanish authorities had
an undoubted right to grant until the Treaty of
Cession in ISIB. It is of such grants that the
court speak when they declare them to be con-
firmed and protected Dy the true construction
of the treaty; and that they do not need the
aid of an act of Congress to ratify and conflrm
the title of the purchaser. But they do not, in
any part of the last mentioned case, apply
this principle to ^ants made by Spain within
the limits of Ixiuisiana, in the temtury which
belonged to the United States 'accord- [*S20
ing to its true boundary; and where Spain had
no right to grant lands after the cession to
France, by the Treaty of St. Ildefonso in 1800,
as hereinbefore mentioned. On the contrary, al-
though the court, in the case of the United
States V. Fercheman, refer to the case of Foster
and Elam v. Neilson, and carefully explain the
reasons which led them to change their opin-
ion OS to the true construction of the words
"shall be confirmed," in the eighth article of
the treaty, yet they use no expression from
which it can he inferred that the opinion of the
court bad changed in relation to any other
principle decided in Foster and Elam v. Neil-
son. And as that case was then under review,
and manifestly, at that time, underwent a care-
ful examination by the oourt: ami aa none of
117t
580
BupUMX CouKT or thb Unrm Biin
ira
lU priDk.-i|>1eB were questioned except tbe OM
Above nieationed; the case of Fmter and Eism
V. Neilson, must, in »ll other resperte, be con-
sidered as affirmed by that of Tbe United States
T. Perchemau. Indeed, we are not aware of
any case in which ita authority ha* been doubt-
ed by the court in any of its principles, with
the single exception above mentioned. Ex-
pressions may perhaps be found in some opin-
ions delivered here which, detached from tbe
ease under consideration, might create some
doubt upon the subject. But theu exprea-
dona muat always be taken with reference to
the particular subject matter in the mind of tbe
court; and when this just rule of construction
Is applied to the language used, it will be found
that there is no case in which the court ever
deiigned to shake the authority of tbe case now
relied on, or to question the principlea there
decided, further than ia hereinbefore stated.
So fftr from it, the leading principle of the case,
wbich declares that the traundary line deter-
mined on as the true one by the political de-
partment! of the government, must be recognised
as tbe true one by the judicial department; was
■ubaequently directly acknowledged and af-
flrmed by thia court in 1B32 in the case of The
Dnited States t. Arredondo et al. 8 Peters, Til.
And this decision waa given with the same in-
formation before them aa to the meaning of the
Spanish aide of the treaty, wbich is mentioned
In the case of Percheman; and, conaequently,
that information could not have shaken the
confldence of the court in any of the opinions pro-
nounced in Foater and Elam v. Neilson, further
than has been already stated.
In thia view of the subject, the case of Foster
knd Elam v. Neilson decides this case. It de-
cides that the territory in which thia land waa
situated belonged to the United States at the
BSl*] time that this 'grant was made by the
Spaniah authority; it decides that this grant ie
not embraced by the eighth article of the treaty
which ceded the Floridaa to the United States;
that the atipulatlona in that article are confined
to the territory which belonged to Spain at the
time of the cession, according to the American
construction of the treaty; and that the excep-
tion of the three grants made in the ratlQcation
of thia treaty by the King of Spain cannot en-
large the meaning of the words used in the
eighth article, and cannot, in the language of
the court, "extend them to embrace grants not
otherwiae intended to be confirmed;" or granta
"which It (tbe American ^vemment) had pro-
claimed to be void, aa being for lands within
the American territory." These principles,
thus settled by thia court, cover Ui* whole
ground now In controversy.
Indeed, when it is once admitted that the
boundary line, according to the American con-
■tmction of the treaty, is to be treated as the
true one In the courts of tbe United States, it
would seem to follow as a necessary conse-
quence that the grant now before the court,
which was made by the Spanish authorities
within the limits of the territory which then
belonged to the United States, muat be null
•nd void, unleaa It has been confirmed by the
United States by treaty or otherwiae. It is ob-
vious that one nation cannot grant away the
territory of anotheri Mid if > proposition lo ev-
ident needed eonflrmatlon, H will be found h
the case of Poole r. Fleeger, 11 Peters, 210l Ib
that case, there had been a disputed boundsi}
between two States, and the parties cUimsd
the same land under grants from differeot
States. The boundary line had been aaeff-
tained by compact between the State*, alta
the grants were made. And in deciding be-
tween the claimants in that case this court said;
"In this view of tbe matter, it la perfectly
clear that tbe grants mode by North Cftralina
and Tenneasee, under which the dafeDdant
claimed, were not rightfully made, becaoac
they were originally beyond her territorial
boundary; and that the grant under which tbe
claimants claim was rightfully made, becanae
it was within the territorial boundary of Vir-
ginia." And again: "If the States of North
Carolina and Tennessee could not rigbtfnlly
grant the land in question, and the States <rf
Virginia and Kentucky could, the inralidity
of tbe granta of the former arises not fron
any violation of the obligation of the grant,
but from an Intrinaie defect of title in tbe
States."
In the ease before us, the grant is invalid
from "an intrinsic defect" In the title of Spain.
It is true that she itill claimed the country, and
'refuted to deliver it to the United [*531
States. But her conduct waa, in thia respect,
in violation of the ri^ta of the United Stales,
and of the obligation of treatiea. The United
States did not immediately take forcible pas-
session, as they might justly have done; and
preferred a more pacific and magnaiiimoas
policy toward a weaker adversary. Yet their
forbearance could, upon no just grounds, im-
pair their rights or legnliie the wrongful giuta
of Spain, tude bi a territory whi^ did not
belong to her; for tbe authoritiea of the United
States made known by every means in thrir
power their Inflexible determination to assert
the righta of this country: and Congress, is
order to guard against imposition and injuatke,
declared by law, in 1804, that all granU of
land made by the Spanish authoritiea after the
date of the Treaty of St. Udefonso, would be
null and void, excepting only those to actus]
settlers, acquired before December 20, 1801.
The present appellant procured hia title froB
Spain after the passage of thia law. The land
granted to him belong not to t^pain, but to tbe
United States ; and notice had been given in tb«
most public and authentic manner, that tke
grants would confer no title, before
iw required to make good thia grsst!
They had done nothing to mislead him, bat
had taken every measure to warn bim and
everyone elae that they would not submit t«
have the soil wbich belonged to tbe United
If
ha has been deceived,
himaelf or been misled by the Spaiiisk author-
ities, and has no right to complain of the eoa-
duct of the United SUtea. And if eitbcf
Spain or the United States intended to provide
for these grants in Louisiana, by the treaty
ceding the Floridas, It ia impossible to be-
lieve that words would not have boen used
whieb elearlj embraced them, and would h«v*
16S»
KxHDALL V. TttE UnrnCD Statis.
left no doubt •• to the intention of tbr parties
to the treaty.
If, therefore, tbia was a new question, and
had not already heen decided in this court, we
■hould be prepared now to adopt all of the
principles alfirmed in Foster and Elam v. Neil-
son, with the exception of the one since over-
ruled in the ease of The United StaUs v, Percbe-
aun, as hereinbefore stated. The queitloos,
however, are not new ones in relation to these
gnknts. The aame principles have been i
tioned by the legislative, executive and judicial
departments of the government, and they must
533*] be regarded as too 'well settled to be
now disturbed; and we think the court below
were ri^ht in rejecting the testimony stated in
the exception, wbicb, if even properly authen-
ticated, could not, upon established principles,
hsive shown title in the appellant under a Spao-
iah grant made in 1B06.
The judgment of the District Court is there-
fore affirmed.
Mr. Justice Baldwin dissented.
This cause came on to be heard on the tran-
script of the record from the District Court of
the United States for the Eastern District of
Louisiana, and was argued by counsel; on con
■ideration whereof, it is now here ordered ani
adjudged by this court that the judgment o
the said District Court in this cause be, and thi
wiine is hereby affirmed with costs.
Power of Qrcuit Court of District of Columbia
to Issue mandamus directing Postmaster -Qen-
•Tsl to do a ministerial act.
Contracts for earrrlns the mall of tbs Culttd
States were made by 8. £ S., wltb tbe roalmasler-
Oeneral or the United States, out of whicb certain
allowancBi aod credits ivere msde In favor of S. k
8. bj that oBcer ; and Ih; - - - ......
a further li
implied will
of (he Lnlled Stnles to settle and adjust tbe clali —
of S. k a., according to the J)rlncl5les of equity :
and directing tlie
sr-Gener^ to crcdli
Genera] ; wbo, therenpoa, carried to the credit of
a. A S. a part, bat refused lo credit a part of (be
■mouot allowed b; the gollcllor. 8. k 8. applied to
L se« Botea to 4 L. ed.
United States detenolned that i
tlon on :be subject wbi necessary, anu inai ue no-
.1.1 — .. .u. joiicitor of the treuiui-j ouglit to be
nerat cODtlniied to withhold ttis cred-
... _. _ _. jpplled to tbe Circuit Court of tbe
United States (or tbe District of Columbia for a
mandamuB. to be directed to tbe Toat master-Gen-
eral, cOBunanding him to credit ihem with the
amount found (o be due to them from the (loited
ata(ea, iceordlnK to the decision of Ibe solicitor of
irdered and tbe
e befoi
e Supreme Court
ID tbe part of (be POHti
proceeding Bgalnst him
e of aa otacfal duty. .
I treated as aa Infrluiiv
srtment of tbe govtrna
ilch, according to tbe i
e proceeding In tbia case lul'
ei't whatever wKh Ibe rights
■r-Gener
s final
^ wblch bas led
» any condlct of power
direct or control the Poet master- Gen era I In tbe
discbarge of bla official duty, partaking, Id any
the performance of s mere mlnlarerlnl art. which
....^.. 1. .... „...,j._( ,„j ,nj authority to
1 Juagiaen( of t
psa directing the solicitor i
nor ia any appeal or revlov of thn
ildcd for liy the act. The terms of
was a msttcr renting entlreli la th
a *uower'ln aujoiie, and especially as tlie [•sieS
arbitrator wse an omeer of tbe govL-rnment ; It did
not rest wltb tbe postmastgr-tieneral to control
Congreaa or the M)1lcItDr In that affair. It Is nn-
oeceasary to say how fsr Congress might hnve 1n-
lerfcrEd by legislation sfter the report ot the so-
licitor: but If there was no fraud or misconduct in
the arbitrator, of which none Is pretended or sug-
gested. It may well be questioned whether 8. & 9.
had not acquired such a vested right as to be be-
yond tlie power of Coogresi to deprive them of It,
The right of 8. & S. to the tull amount of (he
itrol of the Preslden
by tbe
treasury acti
claimed as (
upon him b]
law under wblcb tile aollcKor of the
a : and (bis right of the President wal
rowing out at the obligation Imposed
1 difipe
r Its B
rt. It wo
ling pow(
iny part of tbe
principle wblcb.
lis reeuJia id all cases (alllog
be clothing the President with
-ol (he legislation of Congress.
idmlnistrallon of jua"-
idonslmi
a forbid t
s ohllgadons Imposed on tbe
laws fallhtuUy executed Im-
vel
el7
e bj the
■- a. with
r of tUc
retlon whatever. This was
tlon In tbe depart:
olflclal acL Tbers is n
r of tbe eonrt. Is an
im (or th* exercise of
1181
SoPKcm CouBT or the Ukrid ftrATU.
of mvidRmut wlilcli tuued In tlilB c>se Id Ibc
Dlitrlct Court [n tha Dlitrlet of ColuiobU. muit b<
coDildercd u It wu it commoD lav, wDb reaped
to It! object iQd purpose: and varjlDg odI; In tht
fonn required by tbe dlllertnl cbacacier of the
|pT(riiiiiiDt o[ tbc United BUt;a. It la a writ, la
Ensland. IiiuIdk out o[ tbe Klne'B Beacb, Id (be
oama of the klog, and Ii called ■ prerogatlie wi'-
but coDildered ■ writ ot rlgbt : >Dd la directed
QUlrlDK them to do aome particular thloE, therein
apecIBtd. wtLlcb appertalDs to their olSce, and
whirh la •uppoaed to be coDMoanC to right and
Inatlcej aod where tbere la dd otber adequate,
■peclllc rcmedr, auch a writ, and lor such a pur-
poae. would aeem to be necullarl^ apDropilste to
the prtaent case. Tbe rlcbt claimed la Just, and ea-
tablliriied bj posltlTc law. and the duty required to
be perlormed la clear and ipeclflc. ana there la do
other adequate remed;,
Tha caaea ot H'tntlre T. Wood. T Cranch. 604.
BBO'J and M'Cluny v. millman. S Whrat. *M9.
btvt dccldrd tliat tbe circuit eourti o( tha Cnlted
atatea. In the aeveral Slates, have uo paw«r lo Inaue
k mandamiia acalbst one ol the officers oC the
United Statea.
Tbe result of the cases ot H'Intire v. Wood and
U'CluDT T. Sllllmao clearlr la, that the aulboiiti
C of a
rcult c
erf or,
t Uii
called Into acllon a
tbere ta notblns el
acter o( a partf tl
esled li
official cbar-
ia[ wiH eiempE mm from this
be iivrtormed la merelj mlula-
pilnclple tbat In ererr well organ-
■ -■-- Judicial powers abould be co-
eitenalve with tht „_ , „ ._.. _
tbe* >ra to tie enforced hj iudlclal proceeding!
Tbere la. In the District of ColumbU, no dlrTs
ot powera between tbe gem . ~ .
menta, CoDgresa has the i
imcut ; and It
dal depanmcnl la Ihls district, all tbe Judicial
would be vested Id the courts ot Justice. Tbe Cir-
cuit Court Id the district la the highest court of
original Jurisdiction ; and. If tbe power to Issue
exiata In anj' court
_ _ eated In that court.
e of the act ot Congi-ess establishing
a KOTernment of tbi '•■ - ■ ■ ■ —
d of c
■f Englan
Blned a
the part ._ _
Colled Btatea. The power to Issue a mandamus
a proper fsbp Is a part ot tbe common law. and .
kaa been fullv recognized aa In practical operation
In ■ case decided In the court of that "'— -
Tbe i>ower
Bngli ' '
t State.
the
general
iBdIctlnoe
:b* Stale go
i office ri
: over all Inferior
a co-exteoalve witb
theory prevalla In
ine linlled Stales, where
:d. and governs Id thead-
,_ _iid the powPT of Issuing
la seperallf conBded Co tha hlgbest court
no doubt but that. In tbe State at
□ding Si
ot original Ji
There can uc
Maryland, a w.
.--, n by tbe laws:
It It would lie In that State, there can be no
reason why It should not lie Id the UlstcU
Columbia In analogous cases.
The powera of Ihc Supreme Coort of the Ui
iwlbt pnrpoH of brinclns tha a
^ IISI
mcDt or deCTM, ao tbat It may ba lerlemtO. nc
mnndamua doea not direct tbe Inferior conrt how
10 proceed, but only tbat It tnust proceed, accord
Ine to Its owD Judgment, to a llnal delermlDallaa;
otberwtae It cannot b« revleiied In the Appellate
Court. It la different In fbe Circuit Court ol tb«
Dlatrlct of Columbia, noder tbe adoption of ite
laws at Maryland, wblcb iDCluded ttM commaa
aandami
'equlred of bim by law,
■• ■^- ■-' -' CoDgreaa ot February 27. laou
court and ttie l*Un
.- — J of the ^DltP4l Sutea.
Tbe circuit eourta referred to ware tbose estab-
lished by tbe Act of Kebrusrj 13th. ISul. Tbe
repeal of that law, atteen montba afterwards, and
after tbe Circuit Court tor this dlatrlct bad be**
organised and had gona Into operation, under Uw
Act ot 27th February. 1801, could not. In anr
manntr, atfect tbat law any further than was pro-
vided by the repealing act.
It waa not an uncommon conrae ot leslatatton ta
tbe State^ at an early day, to adopt, by retertaea.
British slstutes: and thla baa bean the count to
leglalatlOD Id Coogresa In many Inatancea. wkea
State practice and State process baa tteen adovttd.
And such adoption baa alwaya been considered a«
referring to tbe law existing at the time o[ ado^
tlon, and no subsequcDt leglslstlOD haa cTer bc«a
supposed to affect It; and aucb muat. nrnaaaillj.
be tbe elTeet and operation of such adoptloD.
No court can In tbe ordinary idmlDlatratloa »C
Justice, Id common law proceedloin, exercise Ju-
risdiction over a party unlesa be stall ▼oluniarllr
appear, or la (ound witbin tbe Jurladlctlon at toe
Jurladlctl
lege. KhI
CBcb tbe p*rCT_beyond the
advantage Is to be'tajten'ot 11 TTmnat be ky plea,
or aome other mode, at an early state ot tbe caaaa,
TN error to the (Srcuit Court ot tha Unitai
1 States in the District of Columbia, for tkt
County of Washington.
On the twenty-sixth day of May, 1837, Wii-
im B. Stokea, Kichard C- Stockton, Lucius W.
Stockton, and Daniel Moore, preaen ted apetitiea
to the Circuit Court of tbe Diatriiit of Cotumlaa
for the County of Washington, stating that ai-
der contracts duly and legally made by th*m
- -ith the late William T. Barry, then Poatnus-
r-General of the United States, and dn^
authorixed by law, they were mtitled to certaia
credit* and allowancea on their contraet* fw
the transportation of the mail of the United
Statea; that the credits and allowatioea wan
made and given to them on their coattactik
and amounts of money actually paid on aiMb
accounts; that sometime In 1S35. William T.
Barry resigned his situation as Postmastn-
General, and Amos Kendall was appointed t«
the oflicei that aftcl* he had entered on the
duties of his office, he undertook to re exattunt
contracts entered into by hia predeccMor,
the credits and allowances made hy him;
and ordered and directed the allowances aad
credits to be withdrawn, and the petitioacn
:harged witb divers psymenta they bad n-
The petitionen stats that they ware disaatii
Bed with these proceedings of Amoa Kendall as
Post master -General ; and, beliering he hat
''exceeded his authority, and being un- [*S]I
ible to adjust their differences with hin. titif
addressed a memorial to the Congrcas of tb*
United States. A copy of the memorial waa
leied to the P '"
ISM
KxHD&Li V. Thb Uitram StAin,
■ fTectliiK tbeir cue; the proc«edingi of the
PoBtDiKster-Cenerftl 111 the matter, end thp
heavj grievtncPB done to tbe memorial isis by
the course adopted by the Postraaster-Gunpral.
The J aik such proceedings on the part of Con
gresH HB its wigdom and justice m&j direct.
The petition states that Congress passed an
Act, which was approved by the President of
the United States on the 2d of July, 183(1,
which act provided, "that tbe soticitoT of the
treuury be, and he is hereby authorized and
directed to setlle and adjust the claims of
William B. Stolies, Richard C. Storkton, of
Maryland, and Lucius W. Stockton, and
Daniel Moore, of Pennsylvania, for extra
■ei'vices performed by them, as contvaftors for
carrying the mail, under and by virtue of cer-
tain ponlrncts therefor, alleg''d to have been
made and entered into with them by William
T. Barry, late Postmaster -General of the United
States; and for this purpose to inquire into,
and determine the equity of the claims of them,
or any of Ihem, for or on account of any con-
tract or additional contract with the said Pout-
master-General, on which their pny may have
been suspended by the picaent Postmaster-
General; and to make them such allowances
therefor, as upon a full examination of all tbe
evidence may seem right, according to the
principles of equity; and that the said Post-
master-General be, and be is hereby directed to
credit such mail contractora with whatever
sum or sums of money, if any, tbe said solicit-
or aball BO decide to be due to them for or on
account of any sucli service or contract; and
the solicitor is hereby autlioriiied to take testi-
mony, if he shall judge it to be necessary to do
•o; and ttiat he report to Congress, at its next
session, the law and the facts upon which his
decision has been foiindcil; Provided, the said
•olicitor Is not authorized to make any allow-
ance for any suspension, or withiiolding of
money by the present Postmaster-General for
allowances or overpayments made by his pred-
ecessor, on route number thirteen hundred
and serenty-one, from Philadelphia to Balti-
more, for carrying tbe mail in steamboats, when
It was not so carried by said Stockton and
Stokea, but by the steamboat company, nor for
any suspension or withholding of money as
aforesaid, for allowances or overpayments made
BB aforesaid, for carrying an express mail from
52**] Baltimore 'to York or Lancaster; nor
for any suspension or withholding of money,
■B aforesaid, for allowanaes or overpayments,
made as aforesaid, on route number thirteen
hundred and ninety-one, from Westminster to
M'Connerston, as described in tbe improved
bid; nor for any suspension or withholding of
money, as aforesaid, for allowances or overpay-
ments, as aforesaid, on tbe route from Balti-
more to Wheeling, for ninning a certain daily
llne to Hagerstown and Wheeling, from tbe
first of Sentember, eighteen hundred and thirty-
two, to the first of April, eighteen hundred
and thirty-three, when the line referred to only
run tri-wcekly; nor for any luapension or
withholding of money, as aforesaid, for allow-
ftncea or overpayments, made as aforesaid, on
the route from Baltimore to WiLshington, under
thfl contract of eighteen hundred and twenty-
seven: but nothing In this proviso shall prej-
udice any application they may make here-
• lb ed.
after In raference to tbesa rout«a, if they ahkU
think it proper to make such application."
The petition states that in pursuance and in
execution of this act, Virgil Maxcy, bring so-
licitor of tbe treasury, did proceed to examine,
adjust nnd settle the said claims: and on the
12th day of November, 1836, did make out and
transmit to the said Amos Kendall, Poetmas-
ter-Gcneral, in part, his award and decision up-
on certain items of said claims so referred to
Kim; and on the Z3d of November, 1S3S, be
communicated to the Postmaster Cenera I his
decision and award on the residue of the claims
of the petitioners.
The decision of the solicitor of the treasury
of the 12th of December, 1836. after staling tba
p.irticular items of account, from which the bal-
ances arose, was as follows:
"1, therefore, in pursuance of the authority
confeiTcd on me, by the aforementioned act of
C'onjrress, make allowance to said Richard C.
Stockton, for bis said claims up to the iBt of
April, 1835, ot tbe above sum of eighty-tbree
tbouhand two hundred and seventy eight dol-
"I, also, by virtue of the same authority,
make allou-ance to snid Stoi'kton, for his said
claims for extra services, from the 1st of April,
to '31st of December, 1835, of the said sum of
twenty-six thousand eight hundred and sixty-
two dollars.
"A claim for interest having been made, I
have postponed the consideration of it until the
equity of the other claims of the gentlemen
'named in the title of the act shallhave I*S30
been inquired into and determined."
On the 22d of November, 183B, tbe solicitor
made a final award, which was also communi-
cated by him to tbe roatmoater-General, That
award, after setting forth the items of tbe ac-
counts presented and established in the judg-
ment of the solicitor of the treasury against the
United SUtcs, was:
"I have examined the evidence touching the
above claims, and find due to the petitioners,
or to Richard C. Stockton, tbe following sums:
For additional dally mail to M'ashinij'ton, thirty-
four thousand two hundred dollars. For com-
pensation for carrying the mail in the spring of
1831, between Baltimore and I'litladelphia, and
for other services connected therewith, less two
bundred and ninety-four dollars, the sua of
eleven thousand seven hundred and ninety -
seven dollars and sixteen cents. Claims for in-
terest, four thousand eight hundred and thirty-
six dollars and eij.'li(y-nine cents; one thousand
six hundred and iii\ty-four dollars and seventy
cents, and three hundred and ninety-two do'-
.ara and thirty-four cents,"
Tbe petitioners state thnt under and by virtue
of the award of the nolicilor of the treasury, they
became entitled to luivi' the sum of one hundrM
and sixty -two Ihouitanil seven hundred and
twenty-seven dollars and tlve cents carried to
their credit; or at least, after allowing some de-
ductions therefrom made by the laid solicitor,
with their assent, the sum of one hundred and
sixty-one thousand five hundred and sixty-
three ilollars and eighty nine cents, as the
amn' nt of principal and interest due to them
by llie terms of the award and deciaion.
But the said Postmaster-Genaral, although
fully notified of the pramiaeE, and after a con-
SUPBBllB CoUBT OF TBI UNITID BTATIB.
ridcrable dein;, ontj bd far obeyed and e&rried
into execution the «ai<l act of Congreas and said
avard BB to direct and cauBe to be carried to
the credit of the pi'titioiiers, tlie sum of one hun-
dred and twenty-two thousand one (luudred
and one dollnra and forty-six centB, which aaid
last mentioned aum of money haa been accord-
ingly paid or credited to the petitioners; and be
haa from that time, and doca atill refuse, omit,
and neglect, notwithilanding theproviaions of
•aid act of Conf^esB, and tbc Eaid award and de-
ciaion of said solicitor of the treasury, so made,
com muni fated and reported, aa aforesaid, to
pay, or credit to the petitionerB the residue of
the aaid sum so awarded, being the sum of thir-
ty-nine thousand four hundred and aixty-two
dollars and forty-three centa; or to credit or
BSI*] pay to •the petitioners, or either of them,
the intcreal upon the aaid balance so unjuatiy
and illegally withheld.
The petition atatea that after the refusal,
omission, or neplect of Amos Kendall to execute
his duty, by obeying the act of Conp:ross, in
passing the amount awarded to hia credit; the
petitioners communicflted the fuels of their caae
to the President of the United States, request-
ing him to cauae the said act of Congress to be
executed', who thereupon transmitted the aanie
to Amos Kendall, the Post master -Gene rat, and
liaving received a reply to the same, stating
why he had thus refused to comply with the
award, and aiiggestin); an application to Con-
(Treaa for further legislation. The President,
in December, 1836, transmitted this reply to
the petitioners, and in his communications aays:
"It appearing that there is a ililTercnce of opin-
ion between the solicitor and the Poatmaater-
General upon the extent of the reference under
the law to the solicitor, the Postmaster-General
having Yielded to what be believea to be atl that
waa aubmitted by the law to the solicitor's de-
cision, and paid the same. But, Congreas be-
ing now in Bission, atui the beat expounder of
the intent and mcaningof their own law, I think
it right and proper, under existing circum-
stances, to refer it to that body for their decision,
I deem thiB courae proper, aa the difference in
opinion about the extent of the aubmission, un-
der the law, arises between the head of the
Postoffice Department and the solicitor of the
treasury; and, as it appears, the solicitor has
reversed, in part, his decision and award,"
The petitioners, in consequence of this cor-
respondence, presented to Congress a memorial,
which, in the Senate, was referred to the com-
mittee on the judiciary.
The petition refers to the reports of the judi-
ciary committee of the Senate of January ZOth,
1837, and February ITth, 1S3T, and to the cor-
respondence between the Post master -General
and the chairman of the committee; copifs of
which are annexed to the petition. The con-
eluding part of the report of the jvidiciary com-
mittee of January ZOth. 1837, was as follows:
"That Congress intended the award of the
solicitor to be final iB apparent from the direc-
tion of the act, 'that the Post master -General be,
and he is hereby directed to credit such mail
contractors with whatever sum or sums of mon-
ey, if any, the Bald solicitor shall so decide to
}i due to them.' etc. If Congress had intended
to revise the decision of the aolicitor, the Post-
tnaHter-GcQer«l would not have been directed
t» make the p^ymmt without tbe ntervcntioa
or further 'action of Congress." Un- l*5St
leas It appeared, vhich is not suggested by asy-
one, that aome cause exiatl whictt would vitiat*
or aet aside the award between private partici
before a judicial tribunal, the committee cannot
recommend the Interference of ConKTess U) set
aside tbia award, and more eapecially as it has
been made by a high officer selected by tbe gor-
emment; and the petitioners have been subject-
ed to the trouble and expense of investigating
their claims before a tribunal created by Con-
gress itself.
"It appears that since tbe award waa mads
by the solicitor, the I'astmaHit.'r-l.!i ni.-iul iu>
paid to the petitioners tlie sum of one hundred
and twenty thousand nine hundred and thirty-
eight dollars and thirty centa. leaving the bal-
ance of forty thouf^iind six hundred and twentv-
five dollars and fifLy-nlns centa unpaid of lit
suma awarded in favor of the petitionen.
From the view which the committee have taken,
the conclusion at which they have arrived
is, thai tbe whole amount derided to be due.
and owing to the petitioners, by the solicitor ol
the treasury, oiight to be paid to them out of
the funds of the PostofHce Department accord-
ing to the directions of the act, entitled 'An
Aet for the relief of William B. Stokes, Rich
ard C, Stockton, Lucius W. Stocliton, and
Daniel Moore;' and that no further action of
Congress ia necessary; therefore, the commille*
recommend the adoption of the following ro-
"Kesolved, That the Postmaster -General it
fully warranted in paving and ought to pay to
William B. Stokes and others, respectively, the
full amount of the award of the aolicitor of tbe
treasury."
The report of February ITth, 1837. on the
message of the President of the United Stain
of the 16th February, 18,17, with the am™
panying documents in relation to the claim; of
Stockton and Stokes and others, contain tl>t
following;
"The committee have conaidered the docu-
ments communicated, and cannot dixrover snj
e for changing their opinion upon any <rf
the principles advanced in their former report
upon this subject, nor the correctness of their
application to this case. They therefore rcccan-
mend the adoption of the resolution heretofon
'Ported by the committee."
The petition to the court proceeds to Matt
that the principal ground of the refusal, n^-;-
'ect, and omission of the Postmaster -Genera I ta
.'Lcciite and obey the act of Congre'sn, and ta
jive the petitioners credit for the full amouBt
of the award of the solicitor of the trt^Miry.
I the c
that a doubt existed as to the ex
thority, he did submit the said quest
Attorney -Genera! of the United States to ab-
tain bis opinion'. The opinion of the Attorpr;
General confirmed the conBlmction of the la*
given by the solicitor of the treasury.
The petition proceeds to state that the "f^
tioners conceivmg and (wlieving that they ar?
a&d have Item, entitled to the whole tvm »
Kkkdux v. Tub UifriA BiAit*.
mimriti by the t*ld •nTIritor p«BMd to thHi
credit on tlie books of the PoBtoRic:e Depart-
Tnent, and to receive tiie amount which, after
tho laid entry.ahouldappear juitljr due to them,
with legal intervst upon the baUnce; have ap-
Slied to tbe *aid Araoa Kendall, Postmaster-
eneral, as aforesaid, to have the said credits
•o entered and the laid moneja to paid, which
he hai continually refused, and still refuses and
neglecta to do: and the Conffi-css of the United
States will not pass any other or further law
«8 it is believed, merely because they have al
ready passed one sulGdent to meet the case; sc
that the only means of obtaining the money
which is justly due to the petitioners, Is by ap-
pli<>ation to your honorable court.
"Wherefore, your petitioners do respectfully
pray that your honors, the premises considered,
wilt award the United States writ of manda-
mus to be directed to the said Amos Kendall,
Post master -Genera I of the United States, cam-
ma ndinK bim —
1. "That he shall fully comply with, obey,
and execute, the aforesaid Act of Congress of
July 2d, 1836, by crediting your petitioners
with the full and entire sum so awarded, an
Kforcsaid, in their favor, by the solicitor of tbiT
trcusiTry as aforesaid, in conformity with wid
award and decision.
2. "That he shall pay to your petitioner* tbe
full amount so awarded, with intercBt thereon,
deducting only the amount which shall be just-
ly charged, or chargeable to your mamorialistB
agair
t the a
I the I
counsel: "That the saJd Amos Kendall, Post-
master-Ganerul of the United States, show cause
on Thursday, the first of June neri, why the
suid writ of mandamua should not issue, as
prayed by the said memorialiita, and that a
copy of this order be served on the said Amos
Kendall, Post master -General, as aforesaid."
a 3 -I*] *A copy of Ibe rule was served as
directed, and was so oertllied by the marshal of
the District of Columbia. Afterwards, on the
7th of June, 1637, on the motion of the relators,
by their counsel, the court ordered a mandamus,
nisi, to issue, directed to tbe Postmaster -Gen-
eral; whii'h writ was iasiied on the same day-
The muiidomuB, nisi, after stating the pro-
ceedings which had taken place in the case, pro-
ceeded as followBi "Therefore you are hereby
commanded and enjoined that immediately
after the recpipt of thia writ, and without
delay, you do fully comply with, obey, and
execute on your part, the aforesaid Act of
Congress of 2d July, IB3S; by crediting said
■nail contractor* with the full and entire sum
■o awarded and decided ai aforesaid to be due
to them by the solicitor of the treasury, accord-
ing to the true intent and meaning of the said
»ward and decision; so that complaint be not
»gain made to the aald Circuit Court! and tliat
you certify perfect obedience to, and due exe-
iTution of this writ to the said Circuit Court on
Saturday, tlie tenth day of June instant; or
that yon do at ten o'clocii of that day show
rausc to the said court why you bave not so
done as commanded."
On the iOth of June, i83T. tbe relators, by
their counsel, and Amos Kendall, by hi* cgun-
On tbe Z4th day of June, 1B3T, the answer «f
the PoBtm aster-General was Sleil.
The answer contained the following causes
"fur declining obedience to the order of the
court," with a full argument upou each of
First. "It is doubted whether, undei the Con-
stitution of tbe United States, it confers on tbe
Judiciary department of the government, au-
thority to control the executive department la
tbe eiiercise of its functions, of whatsoevei
character.
Second. "If, according to the Constitution.
tbe Circuit Court for the District of Columbi*
might be clothed by law to issue a mandamua
in such a case, no such power has been con-
ferred upon them by the act of Congress.
Third. "If, by the Constitution, Congress can
clothe the courts with authority to issue writ*
of mandamus against executive o dicers, as
such; and if they have vested the general pow-
er in this court by law, this is not a case In
which that power can be lawfully exerciaed-
•Fourth. "The court bave ordered ['535
tbe Post master- General to perform a legal im-
possibility."
To this answer of the Post master- General,
the opinion of the Attorney -General of the
United Statea on the whole of the case, and
sustaining the viewa of the Postmaster-General,
was annexed.
On the 13th July, 1S37, the Circuit Court or-
dered a peremptory mandamus, to be directed
to the Postmaster-General, to be issucrl. The
Postmaster -General prosecuted this writ of er-
The case wss argued by Mr. Key and by Mr.
Butler, the A ttorney -General, for the plaintifT
in error, snd by Mr. Coxa and Hi. Johnson for
tbe defendants.
Hr. Key, for the sppellantt
The record presents a case of conflict be-
tween two of tlie great depositories of the pow-
ers of sovernnicnt given by the Constitution.
The judiciary has assumed a power which tbe
executive department resists. It is a power
hitherto unki.owa to the pidiciary — liitlierto
exercised by the executive alone, without ques-
tion.
It is a vast power. It annihilates one great
department of the goiernment In one of ita
appropriste funcliuns, if rut all the depart-
enta, and vests, to a very coisiderable and
ideflned extent, sU power in another.
The court below denies that there can be any
such oonfllct. It has not only assumed the
power, but fortified it by the doctriue that It Is
to be unquestioned and Irresistible. ^Vhl<^ the
court speaks "it is in the name of the United
States, "it is tbe sovereign power that speaks,"
and "commands the proper cxeriitive oRicen
to execute that judgment." And this doctrine,
it is thought by the court, cannot be opposed
'thout invoking principles which tend to
the executive antliority above the restraints
of law."
ftSft
Simiin Cdoh em va Uirim Sum.
uss
tbe power muj be consfdered ma neceiSBrily
connected with that which relates to iti nature
and vklidity; and certainly. If such h the ef-
fect of the power, it ought to be conaidcred in
■uch an inquiij.
We hold that this doctrine as to the effect of
the power is as indefeasible as that which
led to its exercise; that where the sentence of a
court is brought to on}' other independent tri-
fi3S*7 buna] to be carried 'into execution,
preliminarj questions, from the nature of
things, must present themBeives to such other
tribunal, which it alone must decide for itaelfi
those questions are: Is this sentence I am asked
to execute, within or beyond the jurisdiction of
the court pronouncin); itT Is it pronounced
judicially or extrajudicially 1 If the former,
further inquiry is inadmissible, for it is to be
obeyed; if the latter, unneceEisary, for it is a
nullity. We bold this principle as applicable
to all the distinct independent departments of
our government. We hold that to prescribe
limits to power ia idle, if the holder is to be the
sole and iin(|ue8tioned judge of what the lim-
its are; if his posaeasian of the power is con-
clusively proved by its aeeertion, he has unlim-
ited power: and if any of the depositories of
power under our Constitution are placed on
■uch an eminence, it is strange that the framers
of that instrument should have thought it nec-
essary to make it so complicated. For. if a
safe depository of such a power was found,
the great secret was discovered, and the govern.
ment might have been made extremely simple.
He did not understand any writer upon the
Constitution as having sanctioned such a doe-
trine. On the contrary, he should show the
very highest authority for a directly contrary
doctrine; that occasional conflicts and encroach-
ments upon each other's sphere of powers by
the different departments of the government,
were expected to srise; and that it was thought
a matter of security, that each wns left to the
independent maintenance of its own rights, and
bound by duty to resist the invasions of the
Here, then, is a conflict, and the parties to
this conflict stand on ground of perfect equal-
ity; and the question is, where is the power in
dispute?
That one of the parties is a judicial tribunal
gives it no superiority. It must show its juris.
diction by something more than assuming it.
If it can show no other warrant for it, its sen.
tence is a nullity.
Yet it must be sdmitted there is a presump.
tion in favor of the judiciary in such a contest.
And It Is a just one; arising from a proper re-
spect for judicial proceedings; and a persuasion
that as the usurpstion of power is the most
unbecoming, so it is least of all to be expected
Yet nothing human is infallible, and ft may
be found there. A court may mistake in de-
ciding upon the extent of its own powers, as
on sny other question. It may honestly believe
537*] it has the power it 'assumes, and such
no doubt was the case with the court where
this controversy has arisen.
The executive department of the govemmeat,
upon whom this power was exerted, has felt
bound to Question it. It has used the means
which tbe Constitution and tha laws have given
I1S«
It to determine the e<rar«e whli-b, nnder wiA
circumstances, it ought to take; and cannot be-
lieve that it would be justified in abandeniog
its duties to the power and control of o^
other department.
We assert, therefore, that judicial encro*^
ment is as liable to question as legislatiTa
or executive; and this power in every depart-
ment to defend itself and assert its own inde-
pendence, we contend is the undoubted doe-
trine of the Constitution. Certainly the Con-
stitution has assigned limits to the powers al
sll the departments, and leaves each within ita
sphere independent. Certainly it is silent •■ to
any such power being vested in either as would
enable it, without question, to encroach upon
the powers of the others. He cited, to show not
only that it was competent for the executive
departnient of the government to resist, but
that it was its duty to resist any encroachmtat
by the judiciary: Rose v. Uimely, 4 Crandi,
2QQ; 1 Wilson, 40T, 410, 411; The t'edenlilt
(51, No. 324), 2 Story on the Constitution, S2,
23, 24; 3 Story, 45S, 450; Elliot's Debate*,
Mr. Madison's Speech, 378; Speech of Mr.
Ames, 397; 2 Dallas, 410; S Wheat. App. 18;
Patterson v. United States, 2 Wheat. 226.
He was gratified that the content wha broa^
here. Here, where all eiK.roaihments upon the
Constitution would be brought to the same im.
partial test; where this high tribunal would
watch with double vigilance, and rebuke with
all its dignity judicial encroachment; and he
trusted It would be seen that this instance of
judicial wrong would here receive judicial cor-
rection.
They would show, he thought, in this appeal
a case in which the Circuit Court had assumed,
for the flrat time, a power that bad not bee*
and could not be given to it. He charged it aa
no willful usurpation, and believed it to be only
a most unfortunate and a most extraordinaiy
error of judgment.
That power, as appears from its applic«tioB
by the court and from their own Ktutcinent of
it, amounts to this: "The jrawcr to direct aad
compel by mandamus the otficiul atCion «(
every public oliicer wherein individual ri^ta
are concerned."
Such appears to be the principle from lbs
case to which it has 'been apphed. [*fi3t
What is that case! He referred to the petition
of the relators to the court; to tlie act of Cob-
gress for their relief; their letter to the Pre^-
dent; the President's letter to the relators n-
ferring their complaint to Congress and tbor
memorial thereupon to Congress.
These documents, exhibited by the relatcn
themselves, show that when the Postmaster-
General refused to allow them a further endit
on the award, they called on the President, na-
der his constitutional power to take care tbat
the laws were fsithfully executed, to reqoiia
the Post master -General to execute thia law, by
giving them the further credit required. Aad
that, when the President took the caseintoei*-
aideration, he referred it to Congress to psaa aa
explanatory act; and that one House of Om-
grcBs (the Senate) took up the case, and, in tha
language of the petition, "will not pass OM
further law, as there is already a auffinent as*.
Kow.this is the case of the relators by U>eiro«a
showing. Where is it I Certainly not beta*
1B»
Kendall *. Thc UiinED States.
tlw Poitmft«ter-OMiera1. Thejr appealed from
hk daciBion to the President, and be referred it,
■a be had ft right to do, to Congrew; and the
ralatora acquiesce in this reference, and present
tbeir petition to CongrcM, and ui;, in their pe-
tition to the court, "that Congress will not pus
another law."
To whom, then, should the mandsniua go, If
to any 1 The Poatmaater- General was dis-
charge of the case. It should go to Congress,
or to the President.
2. The court below Sfty, "every public offi-
cer who neglects or rcfueea to perform a mere
ministerial duty, whereby an individual is fn-
iured, la legally responsible to that individual,
n some form or other, and a mandamus is one
of the mildest forms of action that can be
Dsed;" making the liability to action, which
ohould of itself prohibit the power of manda-
mus, the test of its oorreetneBs. They say
"every public officer," including the President.
Hr. Lee, in Marbury v. Madison, 1 Crancb,
149, says not; though the court in that case
May "it does not depend on the office, but the
nature of the offense. As to the President, see
Judge Story's Constitutional Law (3d vol., 419),
where It is stated that he is amenable to no
dvi) process, to an officer of any department,
to the Spealcer of the House of Representatives,
•hould he refuse to si;^ a law. The court as-
serts its right to Interfere with all those officers,
as to their acts of "mere ministerial duty."
Now, the remedy by mandamus is just as ap-
SSI*] plicablc to their acts *of discretionary
duty. So it appears in all the books on the
subject of mandamus. So In 19 Johns. Rep.,
26e. So this court, In B Peters, AM.
When a court has the power to order a man-
damus, it goes by its supervising authority to
ma inferior; and goes, and ought to go, as well
t* enforce the discharge of discretlonury duties
ma ministerial duties; with this only ilifferenee,
that the command goes in the one case to do
the prescribed ministerial act; and in the other
"to proceed and exercise the discretion, and do
tbe act in the way that discretion may direct
it. So that a mandamus is as applicable
-to discretionary as to ministerial acts; and in
this case, if any mandamus could issue, it
should have been, not to enter the particular
«redit required, but such credit as the Post-
■naster-General should consider the award of
tbe solicitor authorised: for this would not bea
mere ministerial set, but one requiring the ex-
ercise of discretion. It is the same as giving
judgment on an award, which surely requires
discretion. 9Peters,603,e(M; G Binney, 104, 107.
Further, the principle of the court sanction-
ing this interference with the officers of other
departments, "whenever individual right* are
«tmcemed," is official action, in which the pub-
lic, aa well as the individual, are concerned. It
^ras not so considered In Marbury v. Madison,
"rhat case only meant to allow it where there
was no public; but only an Individual interest
concerned.
The Postmaster-General was to eieeute a
law of Congress affecting indlvldnala. and also
affecting the public That execution flrst re-
4]nired of him to examine the solicitor's award
and the act of Congress, and see if it was "so"
•warded, that Is, according to the terms of the
lair. Then, whatera was "so" awarded, be
• Ii. ad.
S3B
a department, officially, to
was to credit in 1
as to hind the &ov<
They were, therefore, executive acts; and it
is admitted in the court's opinion, "that the
President was bound to see wuen he performed
this act, and that he did It faithfully." But
the court holds that this power of the President
gives him no other control over the officer than
to see that he acts honestly, with proper mo-
tives; without any power to construe the law,
and see that the executive action conforms to
it: that is, the President is only to see to that
which he can never see, at least with certainty,
the motives of his subordinate, and is not to see
to the conformity of the executive action to the
law prescribing it, which is the very thing he
should see, and can *see, and for which |*5ID
he is responsible. This is quite inconsistent
with every opinion of every writer upon this
subject; as in lettera of Paciflcus (GSa, 557,
GSS), Wilson (404); Chief Justice MarshaH's
argument on the case of Jonathan Robbins, S
Wheat. Rep. 16; Judge Story, 3 Com. 414.
Not only is it the President's duty to see how
the laws are executed, he is invested with dis-
cretion as to when they are to be executed. All
the laws of Congress are to be executed; but
not at one and the same time. Some depend
on others. Some must be postponed, and some
executed with despatch. Various circumstan-
ces may occur to delay the execution of a law;
circumstances which the executive department
alone can know. This ia stated in Judge John-
son's opinion in the Cherokee case, 6 Peters, t|
and by the court in 1 Wheaton, 1.
Now, the Circuit Court assumes to direct
and control all executive officers in all
these respects. It therefore assumes the pow-
er described as "the power to direct and com-
pel, by mandamus, the official action of every
public officer, wherein individual rights are
concerned," and that where the President is
admitted, in regard to such official action of
the officer, to be bound by his constitutional
duty, to see that the officer does it faithfully,
and to determine when he shall do it.
The Attorney -General has denied, in his opin-
ion, that such a power can be given to the
courts. That denial we now maintain.
It cannot be given to the courts, because it
necessarily interferes with the power of con-
trol given by the Constitution to the President.
"Whenever a controlling power or power of
appeal is exclusively lodfied in any person or
corporation, the court will not grant a manda-
mus. This is the case of visitors of colleges
or others of spiritual foundation." Rex v.
Bishop of Chester, 1 Wil. 200; Rex *- Bishop of
Ely, 2 Term Rep. 290.
It is impossible here to question the control-
ling power of the President over the Postmaster-
Genernl, as to the duty to which he is to be
compelled by this proceeding. Here is an act
of Oongress relating to the public money, and
requiring the Post master -Genera I officially to
do a certain act in relation to it. As to this act,
the President is bound to have It executed
And the President, on whom this responsibility
is cast, is armed by the Constitution with full
powers to enable him to have it fully and faith-
fully executed. "For If the Post- [*64I
master -General will not execute it as the Pres-
ident think* it ouriit to be executed, and tbe
118T
HurasuK CouBT or thb Vvthd thAm.
ttt
Pre^dent acqufeitrea In thi* imperfect exKU-
tlon of it, tlien lie violatci liife dutj In H>vins
Uw iRwa executed. If tbe PoBtinsstsr-GenerBl
Bhould thinlc tbat he iM the judge, and that he
ought not to execute It aa the President thinks
It ought to be executed, he ahould reafgn; or
the President ahould remove bim, uid appoint
•notber who will execute it.
The Preaident, therefore, on wbotu the re-
•ponsibfllty of aeeing the lawa faithful]; exe-
cuted plainlj reeta, has, under theConatitution,
fuU power to fulfil the duty cast upon him, and
control the Poatmaster-General in the execu-
tion of this act of Congreaa. Therefore, ac-
cording to the principle above referred to, tbe
court cannot interfere by mandamus.
Further; The nature of this control, and
the consequences of affirming tbe power of the
court thus to interfere with It, will ehow tbe
unreasonableness of tbe doctrine.
What becomes of the Preaident's responsi-
bility to have the laws of CongreBs faithfully
executed. Here is a law to be executed. The
President is about to hare it done as Congress
meant it should be done; but the Circuit Court
of the District of Columbia interpoHe and com-
mand by mandamus that it shall be done other-
wise. He (• impeached for not doing it or for
doing it wrong. Can he defend himself by
■bowing the mnndate of the court T
And If tlie control Is with the court, ought
they not to be responsible for the execution of
the lawsT And an theyT And shall taat
power which is charged with tbe duty of exe-
euting the laws of Consresa be Irresponsible T
Again: It has been shown that the Constitu-
tion caste this duty on the President — makes
faJm responsible, and arms bim with powers to
fulBl tt. Not so, in either respect, as to the
court. If they assume tbe duty, it is by infer-
ence, from their power to try cases in law and
equity. No responsibility is pretended; for,
no matter bow wrong they may decide, there
It no responsibility for mistakes of judgment.
And they are armed with no powers to carry
out what they may command; ft Is brutum
fulmen.
Suppose a peremptory mandamus to be the
result In this case. It goes against Amos Ken-
dall, PoBtmaster-General of the United States.
He refuses obedience. They send an attach.
ment for contempt. It goes against Amos
Kendall (as before), Poetmaster.Ceneral of the
541*] "United States. He is brought before
them and committed. If, then, the Postmas-
ter-General of the United States is in jail, is he
still Postmaster-General ! Or is his office va-
cant, and must the President appoint anoIhrrT
Certainly, If tbe controlling power is with the
court, this la what should be done; they would
thus have the power of removal. And they a|.
■o ought to have tiie power of appointmentj
for If they have the controlling power, they
might get (in the same way they ^t that), by
inference, nil power necessary t« make the
eontrolling power effectual, so as to appoint
such a successor aa would carry their com.
mnnds into effect, in opposition to that of the
President. If the court cannot do this, they
would then see that they had undertaken to
command what they had no legal power to
enforce.
la it not mom wise and dlgnlBed for a court
to decline giving a comr ..nd which they m I
no law bat given them the necessary power la
i-nforce, and wait till they are inverted with all i
the power necessary to attain the end in vie«! |
Must not every court decline a juriadietioa
which the lawa have not given them power t*
If It be said that tbe President would bi
wrong and arbitrary In thus resiBting Ihc
court, the plaintiff sttys that would depend
upon ascertaining where wss the first wrong.
If the court usurped power, ought not t^
President to use his constitutional power to re.
sist Itr The late Chief .Justice Marshall, in tlw
caae of Jonathan Robbins, S Wheat. App. I^
says that in such a case it is the duty of the
President to resist i so says General Hamillon.
in Paciflcus, and Judge Washington, at to the
District Court, in 2 Wheat.
It may further be supposed that the Post-
mkater-General, on receiving the peremptory
mandamus, takes another course. Tbe com-
mand is to enler the credit to the relators for
the amount awarded. Suppose be enters it,
in his own handwriting, as done by him, not in
virtue of his oSice as Post master- General of
the United States, hut as done by command o(
the Circuit Court, and so returns to the writ
Would the court hnld this a pL-rformance T And
then, what effect would be given to tbe entry
in the postofSceT Would they pay a credit
appearing to be allowed only on the authority
of the Circuit Court! And if the paring officer
refuses to pay, would the court enforce the
payment I
Here, as to this matter of enforcing payment,
whatever the compliance may be with the
present command, the court say they are in
doubt. Well may they doubt a power to takt
the public money 'out of the treasury |*AIS
and make the United States suable in this case
of law or equity. But they doulit; and oufU
not the doubt, whether they could arrive at the
end, atop their setting outF What purpoae it
to be answered by having an entry maie in a
book, if it may remain there as a dcnd-letler!
If it is to be read and trrated as an entry made
h.v an authority which ia disputed; and wbidi
cannot be enforced T
The Cireuit Court denied all his right tl
control of the President. If he seen the ie-
ferior executive ofTlcers acting honestly, be eta
look no further. How, or when they execute a
law, are things he has no concern with. II is
impossible to sustain tbiH position. Tbe po«t-
oliice, as estsblished by Congress, is an eieea-
tive deportment of the govemnkent- The law
of Congress is conclusive aa to thin; for it
}(tves him powers which rouU not be gi<^i ac-
cording to the Constitution, if he waa not the
head of an executive department.
Ae the head of a department, that ofSeer St^
therefore, subject to the power of the Presi-
dent: "to call upon bim for hit opiniea in
writing, upon any matter sppertnining to tbe
duties of hi* office." This implies, p'aialy.
that he Is, as to three duties of hia oflice, s»h-
ject to the PresidpnCs control Per w^
ahould he give an ecooimt of his opiniotn up-
on matters appirtainin^ to those dutira. if be ie
independent of the Presiilent T And why
should the President have the power of rtqN^
tng such opinions aa ta hia duties, but to atcrf~
Kemiau, *. Tub Unitbo States.
ua
teln how be meana to ^xecote thcM duties; And
to enable him. if lie nnds he is about to exe
eute a law, or discbar^ie any of his olKcial dii
tiea improperly, to direct and coatrol, and, if
■ecBsaary, remove him from officer
And thia is declaimed af^inst as arbitrnry
power. It seemed to bira directly the contrary.
The Preaidenl appoints these ofiicers, anil
can remove iliem at plrasure. This all adroit.
Ha administers the affairs of goveromcnt
through them; and the presumption is that
they will exrt'iite the laws and diitiei
their renpFCtive departments, in the manm
approves. Now, who does not aee that if he
can have his will thus done b; his aubordi
n«t«e, and escapes all censure and responaibili'
tj for what ia done wrong, by saying it waa
done by tlicm, and that they were inJependi '
of hia control; hia power would be far mi
arbitrary, and more dangerous, thaD if they
were made subject to his control, and he re'
sponsible for their acts.
The framera of our Constitution were wist
enough to see this, and they have left him nc
ground for such an excuse; and the people
S44*] 'have alweya held him to this respon-
•Jbility; and the opponents of every adminia-
tration have always charped the chief mafps-
trate as openly and distinctly with the alleged
wrongs of his subordinates, aa if their acta
were purely hia; and the aupportera of no ad-
nllliBtralion have ever pretended to defend
tha President from any of the alleged errors of
hia administration, on the ground that they
were not hia acts, but the acts of ind< pendent
subordinates. And as long as the government
shall last, this is the tnie constitutional ^ound,
aad the only safe one on which those who ad-
minister it must stand: and was it not ao, we
•bould have the EnEtliab maxim — that the king
eaa do no wrong — made applicable to the Pres-
ident T
If the act in question affects the political
powers of the President as given by ihe Consti-
tution, the opinion in the case ao much relied
on of Marhury v. Alndison, is conclusive aa to
thia control, and agninst the power of Congreas
to take it from the Presidont and confer it else-
where. One of the political powers or duties
of the President, as given by the Constitution.
ia to aee that the laws are faithfully executed;
and both the late Chief Justice, fn the case of
Jonathan Roblitns; and Mr. Hamilton, in the
passage referred to, in the letters of Pacilicus;
say that he muat ascertain what the law means
— "muat judge of it for himself." The opinion
in Marbury v. Madison shows *.hat there may
be laws In the execution of which the public is
not directly interested, where only individual
righta are concerned. And such is the case
mentioned of an individual's rifiht to a copy of
a paper, on payin;; for it, and the other similar
caaea given in illustration of the principle.
There are eases tn which individual interests
alone are concerned, and therefore affect not
the polltl(«l powers of the Preaident. But all
laws which sffect the public are political: and
the execution of those Inws, their faithful ex-
ecution, as he thinks they ought to be exe-
eutrd. the President must see to. And such
ar« all the coses given in that opinion, as illus-
trations of executive acts, wherein the eontrot
(•elongs to the PrcsiileDt.
If it be said, as It has been tn the court be-
low, that thia is an act which an'ecta only indi-
viduiii interests, we say the credit required to
be entered in the relator's account, which ac-
count must be stated as having the credit,
makes a sum of mtmey due to them which
must he piid out of the treasury, and therefore
the execution of this act affects the public in-
Thcre are man; reasons why such a control
ought to belong to the executive, and not to
the courts. And first, the power ought to be
'left with the executive, because from [*ft4B
the oEganizBtion of the government It has al-
ways exercised it- It bus length of time, con-
tinued possession, end long and uniform usage
to plead tor it. This command. If it issues
from the court, is the first instance of such in-
terference. The same lapse of time and con-
tinued uaage that gives thia claim to the execu-
tive should bar the judiciary. It seems hardly
possible to conceive how any court should pos-
sess such a Jurisdiction for near forty years,
and never be called on to exercise It till now.
How baa it happened that all the claimants in
such cases, and ail the lawyers and courts of
the United States should be isuorant of itf It
cannot be said no such case aas ot^curred, for
every claim made upon the government, and
disallowed by the executive officers, might have
been brought before the courts, as is the pres-
ent one. In the next place, the executive ou^t
to have this power, because it is executive in its
nature. The executive is Gtted to execute it,
and armed with means to execute it. It can
always execute it (as executive power always
ought to be executed) promptly, unifonnly,
and in the time and manner that the public in-
terests may require, and as Its means may en-
able it- The contrary of all this is the case
with the courts. They are unfitted to wield
this power, because they have not the informa-
tion of the state of the executive department;
ita duties; the means within its control, and the
various circumstances which may olutruct and
delay executive action. And they cannot get
this information; for even if they had a right
to call for It, they have not the time, unless the;
neglect their ordinary judicial business, to ac-
"lire this knowledge of executive affairs.
Then the executive, when it bos the neces-
sary means, and it ia desirable to do so, can act
promptly. But the courts are trying "a case
-n law or equity," and that is a business which
s never done very promptly. Judicial robes
ire not the garments for quick action. Where
the judgment or decree comes, it seems to tie
conceded there Is an appeal to this court, at
the application of either the claimant or the of-
ficer. Is this appeal to suspend the execution
of the law, or the act of executive duty re-
quired! If not, what is the worth of the pro-
ceeding, and if it is, what may not be the con-
sequences of the delay!
Again, the executive acts uniformly through'
out the Union; If that department directs the
action, all executive acts will be performed
alike; all the laws will be executed in the same
But if the courts aasume the power, they may
is thej often do) 'differ with each ['B^*
other. A law may be directed by the court in
one Stale to be executed in one way, and b*
lis*
SUPBBUK COUIT or THK USfflB BtAni.
the court In another Stat^ in another manner.
It ia true tbeir differences may be aettled bj
appeal to the Supreme Court; but eould a gov-
emment be endured, all whose laws or whose
•zecutire action, at the claim of ariv Individuftt
who may conceive hia intereati affected, were
liable to be auapended till their judicial diSer-
enoei were investigated and decided T
And further, if tlie inferior cxeeutlTe officers
■re eubjected to this double control, vim., that
of the President and of the courta, how are
they to aerre these two loaateraT And if tbeir
eommtDda differ, which ii to prevail t
The eaae of Marbury v. Madieon ahoirf there
can be no such thing as this double control. It
diatinctlj atates thst the act of duty sought to
be commanded by the mandamus in that case
was one in relation to which the President had
no control over Che officer; and it as distinctly
admits that where the oQicer is, in relation to
the dutj sought to be enforced, at all aubject
to the control or direction of the President,
there the court haa no power to command him.
In Gibbons v. Ogden, B Wheat. 20S, the Su-
preme Court aaysi "It seems that a power to
regulate impliea in its nature full power over
the thing to be regulated, and excludes neces-
sarily the action of all otheta that would per-
form the same operation in the same thing."
Kow, if the power to regulate is thus necessari-
ly exclusive of all other regulating power, a
fortiori, a power to execute must be exclusive
of all other executive power.
Let it be supposed that the act of Congress
BOW in question provided, in the very words of
the Constitution, "that the President should
see that this law was faithfully executed by the
Postmaster -Genera I." Would not this provi-
sion have given the control to the President!
And could the court in that case have inter
feredt And is not the provision In the Con-
stitution as effectual as ft would have been in
the act T
The power In question cannot be given to
the courts, because, from the nature of the
power, being the execution of a law which
concerns the nation, it is political power {S
Peters, 20 and 30), and belonga to the executive
department; has slways been exercised by it,
and never by the courts; is fit for the execu-
Uve, and unnt for the courts; and being, there-
tore, executive power, belongs to that depart-
ment. The executive power is vested in the
S47*] President, and cannot *be vested else-
where. Martin v. Hunter, 1 Wheat. 3M, Slfi,
820} 8 Story's Com. 451, 340, 414.
Again, tt cannot be given to the courts, be-
cause it is not judicial power.
What power can he given, according to the
Constitution, to the judiciary! Certainly none
but what is properly judicial power. Ctn the
power of supemsinE executive officers, and di-
recting them how and when they are to perform
executive acts, be judicial power) There are
two remarkable Instancea of the Indieiary de-
clining to exercise powers conferred upon them.
One arose from the act of Congress authorizing
the circuit courts to report to the Secretary of
the TVeuury the names of persons entitled to
be placed on the pension rolls. The opinions
of the judges are Id 2 Dallas, 409. They
thought this was not properly of * Judidal na-
ture, and that, therefore. Congress eoold mtt
constitutionally confer It on the courta.
There is certalolv no comparison •• to tka
judicial nature of the two powera, between tka
eiaminationintoaclairoantsrlgbtto a pentfea
under the laws of the United States, and re-
porting Its determination to the Secretary of tk»
Treasury, and the power now in queatlon. If
this Is properly of a judicial nature, it will be
difficult to account for the nicety of the jndgea
in declining the power given by the mat ra-
The other Instance is mentioned by Judge
Story, in a note. In page 420, vol. 3, on Cosut.
Law, and refers to 5 Marshall's Life of Waak-
ington, 433, 441. It there appears tb«t Qm-
eral Washington, as President, before he pro-
ceeded to the execution of the Treaty with
France of 1778, called upon the Supreme Cmot
to expound it, and direct how it should be ex-
ecuted; and they declined doing so, on tbe
ground that they could give no opinion bat
judicially, in m case reguWly teought befon
Now, if the judiciary haa this supcrviaiag
power over executive acta, and can direct the
officers how they are to discharge them on the
ippticatiqn of any person interested, it la
itrange that when the executive oalls upoa tte
court for its direction, it should be incompetent
to ^ve It. Can any reason be given why •■
individual claiming tbe beneflt of ezecntiTC
action from an officer should receive the aid o4
the court, and tbe officer when he asks it be re-
Nor are we left to conjectnre whet y jodi-
cial power. The Constitution 'deettea [*S4I
it. It saya, "the judicial power ahall extend
to alt cases In law and equity arising under tba
Constitution, the laws of the United Steten,
and treaties," etc. A great deal, no doubt, baa
been accomplished In the way of deriving pow-
'rs from the Constitution in the way of eon-
itruetlon; but the Ingenuity that ahail aM|nire
for the courts, from the power to try cnaes in
law and equity, tbe power to send any pafatic
officer to jail unless ne will discharge hia ex-
ecutive duties in the way the courts shall pre-
scribe to him, will very far exceed anythins
that has yet h«en attempted- It does not sum
likely that the (ramers of this instrument wwc
aware that there could be » case in law or eq-
uity that could be brought to so strange a eon-
cluslon; otherwise, some provision would
probably Have been made for supplying the
Slaee of the imprisoned officer- And aa tbe of-
eer in such a cose whose disobedience, if it
u conscientions, would not be guilty of •■
ipardonable offense, and on^t not to be im-
isoned for life, some limitation would prob-
ably have been attached to tite period of hie
conflnement.
But the court thinks there should be little
scruple in assuming this authority, and Be ob-
jection In submitting to It. That, "aa it eae
only be used In eases where a duty ia to be per-
formed, and where It is still in t» power of the
officer to perfonu it, the oeaea cannot bo *«7
With submission to tbe aowt, Ifr. Key hM
he conld not but think otherwise. Iiet it he
once Mtabllslied that whenerer e pubUe eflav
Kbbdaix t. Tm Usm* Siatv.
win not do what ■
"a particular act '
eiml principles of Ian" (for to this extent,
cording to Marburj y. Madiion, the doctrina
goea) mtf require of him, tliis court may talie
cognizance of the (^aae, and compel the officer
to do the acti and the caaaa for auch interfer-
ence will be innumerable.
Wbat are moat of the caaea brought b«-
fore the Lerialature at every seuion of Con-
greia but daima of hia dcaariptionT Claime
kriaing for compenaatioo for service* rtndered,
or losses lus tamed, and claimed under some
"particular act of Congress," or "the general
principles of law," and which tb« officers of
government have refused to allow. All the
elajms ipoken of hj Judge Story, ia hIa Com-
nentaries (pages 638, £39, 640, Ml), are of this
daaerjption; and are epoken of aa being with-
out this or any other remedy, and have atvraya,
by all, been so considered.
What ia the present ease but a claim ariiing
B4B*] under a particular act *of Con^easI
And was it not the same before this particular
act of Congress of the last aaaaion was paasedt
Was it not oridnally a claim for services under
a contract with the Poatmaiter- General, under
the poatofflce laws, a particular act of Con-
greai! When it was disallowed, might not the
claimants have brought it here as well under
one act aa another I As well under the poat-
offlce law, without going to Conceal and get-
ting the special act under which they now
claim, if they had only known of this aupervla-
ing jurisdiction of the court they now inToke.
And if this ia a ease now for the exerciae of
tUa luriadiction by the Circuit Court, and was
so when the claimants carried it, in their igno-
rance, to C^ngreaa; what claim can there be af-
fecting individual rights that arisea under "an
act of Congress," or under the "general prin-
ciplei of law" where the public officers dis-
allow It, or refuse or delay to act on It, that la
not alao auch a casef
The court speak In their opinion of this
remedy by tnandamus against public ofGcera,
commanding them bow and when they are to
perfom their executive functions, aa the "mild-
est" and "best" form of proceeding; and think
that '^he officers will be less haraased by it
than by the uaual forma of action" for injuriea
to individuals. It would certainly be not only
the mildest and tbe beat, and the least haraa-
aing to the officers, but quite aKreeabie, pro-
vided they should think it their duty not to do
their duty, but to let the court do it for them,
and obey their commands; but. If they should
think it their duty to act and think for them-
•elvea, and that the court had no ri^t to think
and act for them, and that what the court com-
manded was contrary to their duty, and should
do their duty, and not tbe command of the
court; then it would not b« so agreeable a
remedy; nnleaa they ahonld think retirement
hi a prison, during the pleasure of the court,
more agreeable than the cares of office.
He would beg leave to ask the court to eom-
re what ia thus said with what waa aald here
the case of M'Cluny t. Silliman, 9 Wheat.
600. Thia court think* exactly otherwise of
thle remedy; as bdng (even if tne laws allowed
it) the worst and the most harassing, and in
pvery way tti« noet improper. And whatever
• Ii. ed.
so pleasant to the court, tfae public might not
Rnd it agreeable to be paying officers their
salaries for attending to their ousinesa, while
they were enjoying thia otium cum dignitata
under the sentence of a court.
'The Circuit Ckturt relies on passage* [*fiBO
extracted from Marbury v. Uadison aa a refu-
tation of tbe Attorney -General's opinion deny-
ing the power of Congresa to give the power
claimed in tliis instance to the courts, and
these dicta are aasmned aa settled decisions,
and also aa their chief, if not aole authority for
assuming tfae power.
That there are some expressions in that eaaa
that seem to favor some of the positions taken
by the Circuit Court may be admitted. That
they sanction their assumption of the jurisdie.
tion, we deny.
How far ore they examinable! Are they au-
thoritative decisional We respectfully say not.
If not touching tbe point in controversy, nor
necessary for its decision, they may be ex-
amined. And thia court has decided that there
are such expreasions in that caae. Attomey-
General's Opinion, 29; Cohens v. Virginia, S
Wheat. 3SS, 400. What was the point to be
deddedt The constitutionality of the law of
Congreaa was the first question; and the point
of jurisdiction thu* arising and being settled
against the Jurisdiction, all else is dictum and
extrajudieiaL everything elae, then, ia ox-
ami nabla.
In Cohens *. Vlrglula, S Wheat. 300, 400,
it ia admitted that there ore dicta in that case,
and one of them very near to the point decided
ia overruled.
In Wheelwright v. The Columbia Ins. Co. 7
Wheat. G34, another is rejected. Another at
the close of page 167, I Cranch, is directly op-
posed by the argument in Jonathan Robbins'
case, in page 10 of App. to 6 Wheat.) and not
reconcilable with 9 Wheat. BIO, and B Peters,
406; and another (that which states the remedy
by action as making a mandamus improper) ia
directly repudiated by the Circuit Court in
their opinion in this case.
Marbury v. Madison, therefore, settles no
other question than that which arose as to the
jurisdiction. And the whole course of the court,
and its settled and repeatedly declared doctrine
Is, that any opinions given on the merits of a
cose where a question aa to juriadiction aiiaea
(unless where the juriadiction ia affirmed), are
not only dicta, but extrajudicial. The follov*
ing case* will show the strongest expressions
of tbe court against entering upon any ques-
tion, until that of jurisdiction is so decided aa
to make their consideration necessary to the
determination of the cause. 2 Dall. 414; B
Marshall's Life of Washington, 443; The Unit>
ed States v. Moore, 3 Cranch, 172; Bradley t.
Taylor, S Cranch, 221; Wilson v. Maaon, 1
Cranch, 91; Osbom v. The Bank of U. S. »
Wheat.; CHierokee Nation 'v. Georgia, [*Bfil
fi Peters, IB, 21, 81, SI; Ex-parte Crane, S
Peters, 200.
If the caae of Marbury v. Madison had been
regarded by the Circuit Court as authoritative
throughout, it would have supported tbe Attor-
ney-General's opinion. The act sought to bn
enforced in Marbury v. Madison is plainly dis-
tingiiislied from Uie one now in question.
est
SUFBUU COUR or TBK UHjnD Staxm.
Tbera, all executire action h*d GMiMd, nothing
official wu to ba done; and Hr. Hadison wai
merelj the holder of a paper to which the re-
lator was entitled by hia appointment, whether
he received the commia»ion or not. He waa
appointed bj the aigning and aealing of the
commiBiion. "No other eolemnity (laj the
court) is required by law; no other act ia to be
performed or done on the part of the gorem-
ment. All that the executive can do to inveat
the person with hia olEce ia done." So that
whether he got the commiasion or not, he had
the office without it.
There wai a caae, then, in which, aa the
court understood It (and whether correctly or
not ia immaterial), there was no executive
act to be done. "It respected a paper, which,
according to law, is upon record, and to a copy
of which the law givea a right on the jnyment
of ten cents." It ia an act on which "individ-
ual rights depend." This is the description of
the nature of the act which the court aay may
be thus enforced. Certainly, nothing like thie
can be said of the act now sought to be en-
forced here.
But this is not al). Th* court contrasts with
tbia act they hare thus described as fit to be
enforced by mandamus, other acts, in relation
to which it admits there can bt no such pro-
ceeding. What are tbeyr They will be found
the Constitution of the United States, the
President is invested with certain important
political powers, etc.; to aid him in the per-
formance of these duties he is authorized to
appoint certain officers, who act by his author-
ity, and in conformity with his orders. In such
cases, their acts are his acts," etc. Here is a
fair description of the act now aought to he en-
forced by llie Postmaster-General. Among the
important political powers vested in the Prea-
ident, one of the most important is to see that
the law be faithfully executed; and consequent-
ly this law, that the Postmaster -General is now
to be made to execute. That officer has been
appointed by the President to aid him In his
duty of having the laws faithfully executed,
by executing those that belong to his depart-
ment. His acts are therefore the President's
Bft2*] acts. And 'this act (unlike the act to
be enforced In Msrbury v. Hadison) ia one
which falls within the political powers in-
Tested in the President. Again, it is said of
these acts which cannot be enforced, that ''the
■ubjecls are political. The}[ respect the nation,
not individual rights, and being intrusted to the
executive, the decision of the executive is con-
clusive." 166. Now, the e](ecution of a law
of Congiess in which the public is interested is
political ; it respects the nation, not individual
rights solely.
Here is a strong mark of distinction between
the set in this case and the act to be enforced
in Marbury v. Madison. In this caae an entry
of a credit is to be made in the books of the
Dstion against the nation. It of courae re-
spects the nation. In that case the act, the
delivering of the commission, the officer tie-
■ng already appointed without it, and entitled
to his office without it, did not respect the
nation, but tlie individual only. That thia is
the meaning of the court that, whan they aay
tf*
"they respect tba nation, o<
rights," they mean not individual rigbta solely,
la obvious from another passage in page 17(L
The court say "that it may bu considered l^
some as an attempt to intrude into the C^biaet,
and to intermeddle with the prerogatives of the
executive. It ia scarcely necessary for the cooct
to disclaim all pretenaiona to such a jurisdic-
tion. An extravagajice so excessive and abaord
could not have bMo entertained for a momtst
The province of the court ia, solely, to decids
on the rights of individuals; not to inquire bow
the executive or executive officere perfom
duties in which they have a discretion.
It seemed to him impossible to avoid aeeini
tire likeness between the acts described by ths
court, sa those in which it could not interfere,
and the act now sought to be enfoirred in this
case; and the unlikeness between the acta de-
scribed by the court as proper for the exereiss
of the power, and the act now in queation, and
•ought to be enforced against the Poatmaster-
General. If the liability to impeachment ia
considered, it seems clear that in relation to
any laws respecting the public (though they
may aleo respect individiul rights) the Pres-
ident may be impeached for mal«xecution.
Could the courts then assume the direction «t
the execution of such a law, and the Presideat
be still so liable I
Such cases would come here. And yet tba
Chief Justice would preside on the trial of (he
impeachment, who would have tried tbe ques-
tion as to how the law should be executed here.
*A concluding remark as to this case [*55S
ma^ be made here, though applicable to the re-
maming question as to wliL-tber Congrraa has
given the Circuit Court this jurisdiction.
When was the jurisdiction, if ever, given T It
is said In 1801, before the case of Marbury v.
Madison. The Circuit Court had the jurisdic-
tion then, if it haa it now; and this court was
not unacquainted with its jurisdiction, nor were
the learned and experientid counsel of Mar-
bury. It is asked, why, when every question
of law necessary for his success was scttSed by
this court, was not the application made there
thenr But, is It possible to lielieve that this
court would then have discussed these qoes-
tiona, if it bed believed the case could have
been taken before the Qrcuit Court, ao aa, ia
effect, to have tried for the Circuit Coart ques-
tions of which it could not itself take cogai-
He thought he had now shown that tbe pow-
er in queation waa executive power, not judi-
cial; and that, by the Constitution, it beloags
to the President, and could not be giv^ by
Congress to the eourta.
But if he had not aucceeded in thia, hs
thought he might at least insist that, aa it was
a power hitherto exercised by the expcutire de-
partment and Dot by the courts, and as he
thought it must b« admitted to be more Gt fsr
the executive than the judiciary, it ought set
to be assumed by the eourta aa given by iafd
ence, by construing general words in an act, as
having, in the court's opinion, that raraniag. A
clear, distinct, positive law, admitting of ■•
reaaonable doubt aa to its meaning, ought to ts
the sole wamnt for the exercise of nich aa-
thority. He waa sure there was no mnA w>^
raat hare, no such clear, plain grant e( the
181
KcnAit ▼. Thi Uitrm Statbb.
powar to Hia eonrt) uidfortUs h« could appeal
to the learned court below, and to the able and
tiweniouB counsel for the relators; one or the
*t£er of wlmm, undoubtedly bad failed to Bee it.
For this ca&e had been attended b; this most
KDOarkable circumstance; That the court were
invited to assume this Jurisdiction by the re-
taton' counsel, as appears in their printed ar-
gument (now before him) upon grounds, all of
which the court cooiidered to be insufficient,
for they adopted none of them, and this could
hardly have happened where the power was
clearly given. And the court then assumed the
jurisdiclion upon a ground which did not ap-
CT to the opposite counsel as of any account,
their argument contains not a hint of it;
8S4*J and this, too, could hardly 'have hap-
pened where the power was clearly give.i. So
that he had it in his power to say (what he
never remembered to have bad it in hie power
to asy in any case b<^fore, and what seemed to
him almost to supersrde the necessity of saying
■Bjthing else) that the grounds upon which the
jorisdictioD wa* rl:i'..'n<<<l by (he counsel nre In
■tilHcient, according tu the opinion of tfaecourti
■nd the ground upon which it it assumed by
the court, insufficient, according to the opinion
of the counsel.
Surely he might say, in suuh a state of things,
that this was a power not clearly given by a
Uw, and not even clearly got by construction.
In the printed argument for the relators, he
observed that the fifth sration of the net estab-
liahing this court is nut once tefeiied to as giv-
ing the iurladiction in question; the third sec-
tion is alone relied on as referring to the Act of
13th February, IBOl; considered, though i
Kaled as to the other circuits, as being still
ree here. The court, in it* opinion, although
this Act of IStb February is recogniied as un-
repealed here, say rot a word signifying thrir
faking the Jurlsdicticn under any of its provi.
aiona; but rely exclusively on the fifth section
of the act establishing the court. Yet, he ad-
mitted it was possible (Lliau;;h certainly in the
highest dfgrpc impiuh:ililf I tlut the true ground
of the juria.liction n--?\'mpd might have escaped
all the rencnrches if the counspl and of the
court, in the first inatHUue, and only Im diiH:ov-
ered finally, when all other grounds appeared
unavailable. He would only say that if thia
■hould prove to be successful, the relators were
most fortunate litigants.
They presented their claim to the remedy
tfaey sought on one ground (the third section of
tha Act of 27th February, tSOI, referring to the
Act of the 13th February, 1801) ; and the court,
baring previously decided in The United States
r. Williama that they could not assume any
Jariadiction on that ground, asaume It on an-
other (the fifth section; and appear to place
their dedsion on the difference between the
taraia "case" and "aiUt"). This waa being
rery fortunate. But this waa not all. The
ground on which the court assume it, vit-i this
dilTerpnce between case and suit la found to be
opposed by the Supreme Court in S Petari,
4H, and Judge Story, 3 Com. SOT.
And then the relators' counsel light u^on
another ground for sustaining the jurisdiction
assumed, vli.; the words "concurrent with
6KB*] 'the courts of the several States," which
are found tn the eleventh aection of the Judi-
t Z.. ed.
clary Act; and arc eonilderad aa limiting the
jurisdiction of the other circuit courts, the ab-
sence of which words from the ^fth section of
the Act of 27th Februarv, 1801, are held to in-
vest the CHrcuit Court of this district with the
jurisdiction iu question.
He should not thinit this ground required
any particular examination, was it not that it
appeared now to be the only one on which thIa
jurisdiction could be expected to stand.
He should proceed, therefore, to examin*
both the third and fifth sections of the Act of
27th February, ISOl, establishing the Qrenit
Court of this district; under one of which it la
incumbent for the relators to shoiv the jurisdic-
tion they have invoked to be given.
It is settled by the cases of Wood v. M'Intyre,
7 Cii'nch, 504; and M'Cluny v. Silliman (ft
Wheut. 608, and 1 Paine, 463), that this juria-
diction is not given to the other circuit court*
by the eleventh seetion of the Judiciary Act.
'i'herefore, it must be shown that one or tha
other of these sections gives a broader jurisdic-
tion to the Circi;it Cojrt of lliia district than
is given by the Judicicry Act lo the other cir-
cuit courts.
First, as to the third section. This civet to
the court and the judges thereof, here, toe same
powers then vested by law in the other circuit
courts and the judges thereof ; and the argument
is, that as the Act of 13th Fehrusry, 1801 (since
repealed by the Act of March 6th, 1802), was
then in force, all the jurisdiction then vested
by the Act of 13th February, IBOl, waa vested
in this court: and that as the Act of Uarch Bth,
1302, only repealed the Act of 13th February,
and not the Act of ZTth February, 1801, all the
jurisdiction thus given by that act to tliia court
was una If ec ted by the repeal.
It admits of several answers:
First. This sretinn should be expoundedl, ae-
rording to the plain intent of Congress, to give
the court and its judges here the same power*
with tiie otliei uircuit courts, not at any particu-
lar time, but u.. all times.
Second. The Act of 8th March, 1802, not
nnty repeals the Act of 13th February, 1801,
but re-enacts the Judiciary Act of 1789; and
thul re-enactment repeals all laws inconsistent
with the Act of 1T89 thus re-enacted; and. con-
sequently, all such parts of the Act of ZTth
February, 1801, aa gave, by reference to the
Act of 13th February, ponera dilTcring from
those given by the Act of 17BB.
■But if this act was unaffected by [*S56
the act of Sth March, 1802, the construction at-
tempted to be given to this section could not
be sustained. We are referred by it to the Act
of 13th February, 1801, for the power* of the
courts. Must we not look for that section in it
which relates to tha powers of the courts r We
find such an one, and it refers u* again to the
Act of 1780. So that the powers then vested
by the Act of 2Tth February, 1801, In this
court, are the powers given by the Act of 1780,
And that act. It ts coneeded, has been settled a*
giving neither power nor jurisdiction to issue a
mandamus in such a ease.
When, then, we are aant to the Act of IStb
February for the powers of the court and the
judges, can we pass by the section that relates
expressly to that subject, and go to the one
tliat relatae to the jurisdiction of the courtsT
11»S
BfjntuK Caun <a the Unmn Statu.
If there wkB no lection to ba found in the Act
of I3th Febniary relating to powers, there
might be some little excuse for Baying that you
uight go to the section pravidiog the juriBdic-
tiou; but I' there is t. distinct section giving
powers, you can, by no rule of construction, go
to any other.
And it is a fallacy to say powers and Juris-
diction mean the same thing; for it they miglit
have such ■ meaning elsewhere, they cannot
here, in an act which contains a distinct sec-
tion for esrh. In each of those acts — that of
1780, that of 13th February, and of the iltix
February— tliere are distinct aectioni; one liv-
ing powers and the other jurisdiction. And if
in liiia act (the third section), by giving powers
gave also jurisdiction, as pretended, why should
tlic fifth section give jurisdiction over again I
Such a construction strikes the latter section
out of the law.
And they do not mean the same thing; ju-
risdiction refers to the cases and persons over
whom the court ia to have cognizance; and
powers, to the means given to exercise ita juria-
diction. And this distinct and precise meaning
is manirestly that in which the terms are usea
in all these acts.
If such a construction could tie sustained,
and the Circuit Court in this district, by thus
having the powers given by the Act of 13th
Fi^bruary, could be considered as thus having
the jurisdiction given by that act, and that ju-
riadiction waa as extensive as is contended, how
ar« we to account for its never having been ex-
ercised; fur its being discovered only now that
this court has a jurisdiction denied to all the
other courts? No case has been brought here of
ita exercise, though hundreds of cases like the
Sa7*] present are now before Congress, 'which
the claimants have never imagined they could
bring liefore this or any other court. And no
instance of the exercise of any Jurisdiction
under this Act of 13th February can be shown
in the Circuit Court. And on the contrary,
the Circuit Court in December Term, 1834,
in the case of The United States r. Christina
Williams, when this third section was brought
before them, after argument in a deliberate
written opinion, as we show in Judge Cranch'a
notes of the cose, disclaimed, expressly, all ju-
risdiction under it, saying, "this court takes
its powers under the third section, not its ju-
risdiction."
The court below, therefore, was right in re-
jecting this ground thus presented h; the relat-
ors' counsel, for taking the Jurisdiction; and
in saying, as they do in their nrst opinion after
the first argument, "the court takes ita powers
by the third section, but its jurisdiction by the
fifth."
2d. It remains now to he seen whether the
court has been more fortunate in selecting the
fifth section as their ground, and their only
ground for assuming the jurisdiction.
Here, as It is admitted to be settled that the
eleventh section of the Judiciary Act does not
give this juriediction, it must be shown by our
adversaries that there ia a difference between
that section and the fifth of the Act of the 2TLh
February, so that the jurisdiction denied by
the one is given by the other,
Comparing these two sections, omitting all
lmm«tcriai lerma, we find that by the eleventh
SIM
section of tbe Judiciary Act, the eimtt eonrta
of the United States are to take cognizanre of
all suits in law or in equity, "concurrent with
the courts of the several States." And, by tbe
nrth section of the Act of 2Tlh February, tb*
Circuit Court of this district is to take cogai-
rjince of all cases in law and equity. A* It la
now not questioned but that by 2 Petera, 4M,
and 3 Story's Com. SOT, it is settled that ttacra
is no difference between the terms "ease" and
"suit;" the only remaining difference rests on
the words, "concurrent with the court* of tbe
eeveral States," contained in one statute and
omitted in tbe other. And the jurisdiction ia
now assumed by the court below on the force
of these words alone.
This ohtlgea the court to maintain these two
propositions :
I. That these words limit the jurisdictioB of
the circuit courts to such suits, or cases in law
or equity, as the courts of the several State*
then had cognizance of; and,
'2d. That tbe courts of the several ['SSB
States had no jurisdiction of coaee in law or
equity, arising under the Constitution and
laws of the United States; of which two prop-
ositions tbe only dilGculty is to say which u
the most untenable. From them, bowcTer,
they conclude that the United Statca ciicoic
courts have no jurisdiction in eases of law aad
3uity arising under the Constitution and laws
the United States; and this, they think, mnH
have been the ground upon wliicli this eoort,
in the two cases referred to, have denied 'Am
jurisdiction of the circuit courts to isene ^
mandamus to an executive officer. He wouU
undertake to deny both tbe premises from whieft
this conclusion was drawn. That this ooort
laid down no such premises, and drew no aaA
conclusion, was obvious from tbe cases re-
ferred to.
1. Did Congress mean, by these worda, to
confine the jurisdiction of the United Statca
jurts t
as the courts of tbe several Stalea then had
cognizance off
What is the language I They shall take cog-
nizance of ail cases in law or equtly. "concur-
rent with the courU of the several States. " And
this means, it is said, that they shall Uke cog-
nizance, not of all cases in law or equity, but of
such only as the courts of the several State*
then had cognizance.
This was surely a strange mode of express,
ing such a meaning. The argument is that as
they were to take a jurisdiction concurrent
with the SUte courts, ConipTss nn.'ant Ibey
should only take what the Slate courts titen
liadi and that the positive words—that they
shall talce cognizance of "all cases in law ot
equity"— are to be controlled by the inferencw
arising from the others. But. aurcly the court
should have construed the law so as to give
more effect to the express words than to tba
inference, and say they must take jurisdictioa
of "all cases in law or equity" (a juriadictioo
which Congrrss could give), by force of those
express worJs; and the words "concurrent
with the courts of tbe several States" are t*
operate to show that Conp-esa meant not to
give the juriadii-tion ei^clusively 4as they couU
have done) of the SUte courts. It is clear thai
if Congreaa did not neon this, but intrvdad
Petera It.
1S38
Kemiali. t. turn Ukited States.
Ut
what the court bi'Iow has snppasvd, it would
have bren easy to have said, instead of "alt
cases," etc., "such eases," etc., as those State
courts had eogiiizance of. The JudJuiary Act
BlulnB in this and several other aections that
CongreM did intend to give some portions of
jurisdiction to the UniteS States courts eiclu-
alvelj of State courts, and other portions con-
SftB*] currently *with the State courtaj and
the Constitution haa been always so construed
RB to admit the power and the propriety of do-
ing so by Congiesa. This is the interpretation
of that part of the Constitution given by Gen-
eral Hamilton in the eighty -seconii letter of
The Federalist, end by this court, also, in Cohen
V. Virginia, 300, 3B7, 419. Cited, Bank v.
Devaui, 5 Cranch, B5; 3 Story's Com. 619,
620, 621, BZ2; and Houston v, Moore, 6 Wheat.
27, 28; 3 Wheat. 221; 1 Kent, 53B, BOB, 507,
342. 343, 310.
The lansuB^, therefore, uaed by Congreas,
does not admit of such a construction.
And if the act could be construed with this
restriction of the circuit courts to the juris-
diction of the State courts, it may be asked,
docs it mean all of themT and if not, which I
For we all Icnow they greatly dttTered.
This law, it is known, was reported liy ■
committee of Congress, composed of eminent
profcsaionai men, many of whom had a s si u ted
in fonning the Constitution, and one of whom
was from each State. They, therefore, well
icnevr the great difTerpncea of jurisdiction with
which the diffiirent States had invested their
tribunals; and if the intention was that the
United States courts should have the same ju-
riadiction that was given to the courts of the
States where they were respectively held, then
it would follow that the federal courts would
not have the same jurisdiction everywhere, but
would differ with each other aa the State court!
did.
Congress cannot be supposed to have meant
that: and it is settled that they did not so
mean that their juriBdictions everywhere are the
•ame. Livingston v. Story, 9 Pecers, and the
c«sea there cited, and Tlie Federalist, No. 62.
The Federalist, No. B2, shows that all these
courts have in all the States the same legal and
equitable jurisdiction, without any reference to
the varying jurisdictions of the State courts.
The lirat proposition, then, that the United
States courts took only the jurisdiction of the
State courts, cannot be sustained.
Nor is the court below sustained In their
second proposition, that the courts of the States
hAve no jurisdiction of caaea In law or equity
arising under the Constitution and laws of the
United States.
It would be most strange if it was so; for
tba Constitution of the United States (art. 0,
■ee. E), declares that "this Constitution, and
the Uwa of the United States which shall be
made In pursuance thereof, and alt treaties,
etc., shall be the supreme law of the land; and
SCO*] the 'Judges in every State shall be
bound thereby, anything in the constitution or
laws of any Stat« to the contrary notwitb-
■tanding."
Now, if any State court, having, b7 the laws
of the State. Juriidlction over all caaea of law
and equity, should be applied to to take juria-
dieUon in ■ case of law or equity arising under
0 L. ed.
the Constitution or a law of the United Statei,
which is binding on then as tliclr sunremelaw,
on what possible ground could they decline the
jurisdiction! A case in law or equity mny un-
doubtedly arise under this conntitulion. or >
law of Congress, or a treaty made In pursuance
of its authority, as well as under any other
law; and if so, all courts having Jurisdiction in
cases of law and equity, must entertain the
When a case is said to arise under the Consti-
tution or a law of the United Slates, is settled
in Cohens v. Virginia, Q Wheat. 378; and
what are all the casca where the right of ap-
peal is given by the Judiciary Act to this
court from the State courts, but cases arisin"
under the Constitution and laws of the United
States I
Not a word from the court nor from any
writer upan the Constitution, or the jurisdic-
tion of our courts, has been mentioned as giv-
ing any countenance to this new construction.
They appear never to have entertained an idea
of this limitation upon the circuit courta. He
would refer to the I6th chapter of Sergcant'a
Constitutional Law, 2d edilion, 123; 3 Wheat.
221; 4 Wheat. IIB, and the Act of Congress
of zeth of May, 1824, establishing the courta
of Florida, which recognizes the circuit courts
aa having, by the Judiciary Act, jurisdiction of
cases arising under the Constitution and laws
of tlie United States. See Ameiican Ina. Co.
V. Canter, 1 Peters, Sll.
According to the two propositions mainlsiiicJ
by the court below, it would follow that caaes
in law and equity arising under the laws and
Constitution of the United States could not be
tried anywhere: for the court say the State
courts could not try them, and the United Slates
courts have only the same jurisdiction, that ia,
no jurisdiction over such cases.
Neither of these propositions, therefore, can
be sustained. And if they could, still it would
t>e necessary for the court below to show thai
this claim of the relators was a "case in law or
equity."
What Is a case in Uw or equity T
"If B." sa^B the court's opinion, "a resident
of this dfstnet, la indebted to A upon a prom-
issory note, this court haa jurisdiction of the
He apprehended something more was nt-'ces-
sary than a note's being 'due between f'BCI
such parties, to constitute a case at law or
equity. This court, in Osborn t. The Bank of
the United States, 0 Wheat. SIO, prescribe
other requisites. "That power (the judiciary)
is only capable of acting where the subject is.
submitted to it by a party who asserts hia
rights in the form prescribed by law. It then.
b«;omea 'a case:' " and Judge Story, In his Com-
mentaries, vol. 3d, page 607, referrlngto this
case, says: "It is clear that the judicial depart-
ment is authorized to exercise jurisdiction, etc.,.
whenever any question shall assume such ^
form that the judicial poweris capiible of acting
on tt. When it has assumrd such a form it
then becomes '■ cnne;' and then, and not tilt
then, the judicial power Ht(a''liP8 to it. Inntiiei<
words, a csae is a suit in law or equity, insti-
tuted according to the rcTular course of judi-
cial proceedings." So, 2 Petera, 4-19; 9 Peters,
405; e Wheat. Aup. IB; ft Biniiey, S. So.
SnriEitK Coumr or thk Uinm> SrATt*.
t lubmit it to the
right, "in « form preBcribcd by law." And if
he cannot And a law prescribing a form by
which he li to Hsscrt hi a right, he cannot have
a CCM in law or equity.
No doubt A can Sad auch a law, and there-
fore he may have a case. But where do the
relators And any law prescribing a form by
which they may require an executive officer to
be compelled to discharge a duty devolved on
him by lawT If it be said by a mandamus,
under the 14lh section of the judiciary law, aa
a writ nece»«ary to enable the court to cierciae
ita juriidictioD, it U auewered by M'Ctuny v.
Silliman.
Congreaa has not prescribed a form by which
parties who have rights to have official acts in
which thpy are interested performed by the
public ofi'icprs on whom "the laws have de-
volved such duties." may turn these rights Into
cases at law or equity between them and the
oiticera, and submit them as controvcraies to the
courts.
Judge Story says (3 Com. 541): "Congrei*
have never yet acted upon the lubject so as to
give judicial redress for any nonfulfillment of
contracts by the national government. Cases of
the most cruel hardship and intolerable delay
liave already occurred," etc.
Again. "He is disposed to thinlc that some
mode ought to be provided by which a pecun-
iary right against a State or against the If nited
States might be ascertained and established by
the judicial sentence of some court; and when
60S*] so ascertained and eatabli^hed, *the pay-
ment might be enforced from the national
treasury by an absolute appropriation."
Can it be poasible that the learned judge was
mistaken in all these views! That these cases
of hardship and delay need not have occurred!
That ailrq|iiBte remedies in thecourts, orat least
in this Circuit Court are to be found, where
they will be recognized aa cases in law or
equity? That the inability to sue the govern-
ment is to be obviated by enforcing execution
without suit against the officer, and calling this
proceaa of execution a suit?
The aection of the Judiciary Act which gave
t« this court the authority to issue writs of
mandamus, shon-s that Congress did not con.
aider claims calling for that remedy as cases in
law or equity, and further shows that Congress
meant to give that sort of jurisdiction only to
tUs high tribunal, and not to the inferior
Much is said in the opinion of the court be-
low as to the distinction between the ministerial
and discretionary acts of the executive oflicera.
He did not admit that this was a true test of the
jurisdiction by mandamus. In Curtia v. The
Turnpike Co., in e Cranch, 236, the act to be
done Dy the clerk was merely ministerial; and
this court thought that as ^here was no act
givine the Circuit Court jurisdiction over the
act, ft had no power to control him. Why, if
tbe court could not control Its own clerk in a
ministerial act, could it control, in a similar
act. the bead of another department!
But can the act sought to be enforced be
considered a merely ministerial actT ff com-
pared with the jlluatrationa given in Marbury
lifts
T. Bfadiaon, It would aeem not. GrUEtk t.
Cochran, B Bin. 87, decides that where an •■■
cer has to examine a contract, and be guided by
tliat and a law In reference to it (aimilar t*
which are the duties of the officer here), it can-
not be held aa a mere ministerial act, and is not
to be enforced by a mandamua. The aame case,
as also Judge Winchester's opiuion, in tbe
American Law Journal before referred to,
ahowB that If the act is to be followed by taking
money out of the treasury, it cannot be en-
forced by mandamus. Judge Tilghman re-
marks, "we have no right to do that indirectly
b^ mandamus which we have no power to m
directly; end we might as well be called on to
issue a mandamua to the State treasury to pay
every debt which is claimed by an individo^
from the State" (page 106).
It haa been aaid that injunction! hare been
allowed by the Qrcuit Court, addreeaed to the
treasury officers.
'This has only been done in caaea (*5<S
where the funds enjoined (aa In the dainta
under the French Treaty) were not tbe publk
funds, but moneys held by tbe officera in traat
for the claimants. The Circuit Court baa a|.
ways put ita right to interfere exclusively on
this ground; and the goverument, in the tint
of Mr. Gallatin and ever since, has denied, as
to the public money, any power of tbe judid-
ary so to interfere. An opinion of Mr- Wut,
when Attorney -General, expressly deniea aneb
power to the courts.
And the court below held, some years agoi
the same opinion. In the case of Vaase v.
Comcgys, MS. 304, they said, "the fund is la
the Treasury of tlie United SUtes. Can this
be aaid to be within the juriadiction of this
court! The officers of the United Stateo, hold-
ing public money as money of the United
States, are not accountable to anybody but the
United States, and are not liable to a suit of aa
individual on account of having such money
in their hands."
It does not seem easy to reconcile this witk
the jurisdiction now assumed.
There remains another objection to the man-
damua. There was, by action against tbe oS-
cer, another speciltc remedy. 3 Burr. 12td;
I Term Rep. 2R6; 2 Binn. 361; 2 Leigh, 168; !
Cowen, 444; 1 Wend. 325.
In Marbury v. Madison the principle of tkaa
cases is recognized; and it ia said, if an setiva
of detinue would lie, the mandamus "wonld
be improper." And tbia la again sanctioned In
what ia said in the conclusion of this cooftv
oinnion in M'Cluny v. Silliman.
Vet the court below have overruled all thcea
cases; their own decision in The United Statit
V. The Bank of Alexandria, and aay that the at-
fleer's being possibly unable to pay the damB(M
that might be recovered in an action, pietsaM
his liability to an action from being such a r«a-
edy OS should forbid the mandamus. As then
can be no action that is not subject to suck s
contingency. It follows, contrary to all f
cases, that a mandamus is allows
the officer Is also subject to an action.
If what haa been said should make it enn
oniT doubtful whether the court below haa lit
jurisdiction. Judge Iredell in 2 Dall. 413, tat
Judge Baldwin in Ex-parta Crane, 6 Pet«Eta,lS9i
would show. Id very strong language, the la-
Petet* 11
KurtiAix f. Tm UninD Statu.
MS
I froptittj knd danger of asauming k jurisdiction
' which haa slept ever eioee it waa given till the
' present occMion.
- B84*] 'Coze, for the defendants in error:
The facte and hietorj of this case, asdia-
' eloMd in the record, are peculiar. The questions
' which It preseDt* are of the highest interest, as
' well as importance. It involves a large amount
- of property which the relators believe belongs
to thftn bj as prrfoct a right oa thst hj which
■ aof iproperty can be held, and which has been
' niglritly and Illegal]]' withheld from their pos-
' scMlon. It involves the examination of the pro-
' oaaflings of a high functionary, under the
■Mating influence of which a vast amount of
^personal suffering has been endured, and which
'las already brought to a premature grave one
■of the parties on the record. It involves gen-
•tnX qnestionH as to the rights of the cltisen in
'Ua peeuniary transactions with the government,
• between whom and himself contract stipulations
'■nbsiat. It involves a consideration of high and
theretofore unknown powers, claimed as betong-
■fng to public officers, in withholding their ac-
■Um) In cases where speciHc duties are imposed
'on them by positive statute; and of immunities
■ asaerted in regard to them, when private rights
■are violated, and the injunctiona of tbe law dia-
' regarded. It involves a consideration of the
■oztent of legislative power, and of the means by
which that authority may be enforced. It in-
TOlvea the nature, character and extent of judi-
cial power, under our institutions; and indeed,
whether the Judiciary be, or not, a co-ordinate
and independent department of the govern-
ment. It involvea the true Interpretation of
•ome of the most important clauses in the Con-
stitution; the eesential Drinciples of all free
ffovemroenta, and eapecially of our own peculiar
institutions.
Nor are these mattera, thua forced upon our
consideration, limited either in their applieation
to the individuals who are partiei on this record,
to the particular territory under whose local ju-
risdiction this case has arisen, or to the partle-
idar period in our history which b now paasing.
^ey embrace every citizen of this vaat repub-
Uo; they are co-ext«nsive with our geographical
Hmlte; they will reUin all their interest and all
their importance, so long as our fabric of gov-
ernment shall liTs and our Constitution continue
ta existence.
A brief review of the history of this case ia
aasential to a correct presentation of the proper
■uhjects to be discussed. It originated in a.a il-
legal act of the present Post master- General,
who undertook to reverse the acta of his prede-
eeasor in office; to annul contracts which he had
made; to withdraw credits he had given; tore-
charge moneys which he had paid. This pro-
54K ] ceeding haa been declared by *thia court
to be illegal and beyond hia authority. The
United Statea v. Fillebrown, 7 PeUrs, 46.
GongresB, on the memorial of the relators,
referred the adjustment of their claims to the
•olicitor of the treasury, and made the award
of that functionary conclusive. He made his
award: the Postmaster -Qeneral assumed the
right to reverse the decision, and to set at de-
0ance the act of Cougreas which imposed upon
Urn the plain duly of executing it- The Attor-
ney-General, called upon for his official opinion
en tbe question in which the postmaster repre-
f ^.efl. 7
sented the solicitor aa having misconstrued the
act of Congress, and thereby transcended Ua
authority, coacurred with the solicitor in hia
interpretation of the law; and his opinion ia
treated with worse than contempt. The Ju-
diciary committee of the Senate, after full con-
sideration, and the Senate, by an unanimous
vote, ratify and sanction the action of the solic-
itor; yet tbia insubordinate inferior atill hang*
out the Hag of defiance- The judiciary inter-
pose; their mandate is disregarded, and language
highly menacing in its character employed, in
the intelligible intimation that their proccas
may be stricken dead in the hands of the mar-
shall by dismissing him from ofUce, for the sim-
ple reason that he has performed, or is about to
perform, hia positive duty.
Throughout, therefore, it appeara that thla
functionary baa arrayed himself in an attitude
of hostility againat all the authorities of tbe
government with which be has been brought in
contact; and the official interference by tbe dis-
trict attorney and Attorney -General in this pro-
ceeding, conveyed tbe first information that he
was sustained in any part of his course, by any
official influence.
Another aingular feature in the case b that
the allegations made by the relators are sub-
stantially admitted to be true. The validity of
the original contracts under which the aervicea
were rendered is not dented; the extent and
value of those services is not controverted; the
construction of the act of Congress ia not ques-
tioned; the obligation to pay the money is not
put in issue. The Postmaster -General concedes
all these points ; but plants himself on the single
ground that however clear may be our righta,
however just may be the debt, however precise
the injunctiona of the Act of Congress, tne law
mot reach him: that the claimants still have
other remedy than such as he may Kfaeioua-
ly please to extend, or than may be found in
the power of the executive to remove bim from
office. He insists that notwithstanding the act
of Congreas for tbeir relief, and 'the [*&6fl
award made by the solicitor, the parties stand
precisely as they did before they went to Con-
gress. Substantially this court is asked by the
plaintiff in error to expunge the act of Congress
from the statute book, and to treat the proceed-
ings of the solicitor as a nullity. Independently
of them, we had the same remedies which it is
contended we now have; we might then have
supplicated the Postmaster-General to do ua
jv.sticc; we might then have invoked the power
of the executive to see that the law should be
faithfuly executed.
The queation is thus brought within a narrow
scope. Is there sny power in the judiciary of
country to reach such a case of acknowl-
i wrong, and to enforce a^inst this party
the performance of an unquestionable duty?
In discussing thia case, it will be attempted
maintain the following propositions, which
will be found to comprehend everything easen-
" \\ to bring us to a correct conclusion:
1. That upon the general prini.-iplea of the law
iverning this particular form of proceeding,
id in the absence of any objections derived
om the provisions of Ihe Constitution or acta
Congress, this is a proprr case for a manda-
SCFBUIK COUBT OT THI UtlllBt StATSk
pMB to vest In the courts of tbe United State*
power to command th« officer to whom the writ
«•■ directed to pirform the kct whkb be
required to perform.
3. That CongTCiB has, ifi fact, exerciied this
•ntborltjr, b^ conferring on the Circuit Court
of tbia dJBtnct power to award tlu mandamua.
In the prcBfnt ca)e.
Before proceeding to dtacuaa theM propoai-
tfons, it tatj not tw irrelevant to remark, gen-
erall7, that the return of the PoBtmaeter-Gen-
eral in this case is defective in all the eiBcntial
requiaitea of a good p:ea. So one fact ia averred
la auch t, form as to admit of being trav-
eraed, or to aiistaln an action for a falae return
The return to a mandamus should beaspreciae
in its averments ss an; form of plea, or even an
Indictment. 10 Wend. 86.
1. Is the remedy by mandamua tbeapproprl-
Ate remedy in t!ie present casef
Tbe relatora have a clear, preciae right, abas-
lute and unconditional, secured by an act of
Congreaa; and this right is withheld bj an of-
ficer especially charged b^ law with the per-
formance of an act essential to that right. Is
there any other specific, adequate, appropriate
SB?*] 'legal retnedyr If none, then upon the
principles which govern this form of proceed-
ing, a mandamus will He.
It liBB been argued that such other remedy
exists; I. By personal action against the delin-
quent officer, 2. By indictment, if be haa vto<
lated the law. 3. By petition to tbe executive,
whose business It Is to see the lawa faithfully
executed, and who can exercise in ease of re-
cusancy, bis eoustitutional function of dismiM-
ing the party from odice.
Neither of these furnishes such a remedy a*
the law reqiiirea. Neither of them puts the
party in posaesaion of the right which ia with-
hold. If a civil suit l>e instituted, it must be a
special action on the t-sae, in which damages
may be recovered to the extent of the injury
actually auatained by withholding the right; but
after the recovery, the ri(;ht to the apccific
thing remains perfect and unimpaired. This
right ts not extinguished by auch recovery ; and
BS long as it is withheld, tbe party may continue
to institute new suits, and recover fresh dam-
ages. In an indictment, the public wrong only
Is punished; the prirate injury is unnoticed.
The fine goes into the public treasury; the im-
prisonment of tbe delinquent leavea the private
right unslTet-tpd, 2 Binney. 276; 4 Barn. &
Aid. 860; 6 Bingh. 608; 10 Wend, 248.
We are told, however, that the peculiarly
appropriate remedy provided for the citizen in
•uch a case is to petition the executive to com-
mand the performance of tbe act, and if his
command is disobeyed, to remove the insubordi-
nate officer from his office.
Is this, in the language or spirit of the law.
B specific, adequate, and appropriate legal
remedy! A petition, which is addressed to the
grace of the executive; which may be disre-
garded and put in the lire, at the pleasure of
the functionary to whom it is sddreRnrd, which,
i( granted, will not secure redress of the wrong.
kwt at the utmost only punish the wrong-doer.
This doctrine, that an American citizrn
atatute, hu no remedy but by petition to tk«
•xacutive, fa a moostrouB bereay, slavish in tha
extreme. It has no ground of support in tha
language of the Constitution or the spirit of
our institutions. The annunciation of aocli ■
doctrine in England was made, more tbu a
century since, tbe basis of one of the arUdaaof
Impeachment exhibited against L^d Somws,
I4th articla of impeachment, 14 Howell's StMo
Trials.
*Theae an not, howoTar, tbe grounda [*S6S
upon which the plaintiff In error bimsetf reatA.
He deniea that the mandamua ia the appropriate
remedy; 1. Because he has a discretion under
the law, and where the olTieer has a din-rctio«
no mandamus lies. S. Because the writ can
only issue in cases in which it is necessary; not
a* a means of obtsdning jurisdiction over a case,
but aa a means of exercising a juriadictMn
already vested.
In any sense in which the doctrine advanced
In the flrat objection can be made applicable to
tbe case at I^r, the position assumed is in-
founded. In the general language in whieb it
ia expreaacd, it ia denied.
It doea not follow from the fact that a dis-
cretion is vested in an officer that therefore no
mandamus will lie. If a statute empower aa
officer or an individual to do a parlicular set,
but leaves it exclusively to his discretion
whether to perform it or not, no mandamua
will lie to compel it* performance. If, how-
ever, he is directed to do an act, but he haa
a discretion to perform it in either of twtt
ways, a mandamus will lie to compel Um to
exercise his discretion; and having done tbat,
to perform tbe duty in the mode which be had
selected. If, for instance, the act of Congreaa
for the relief of the relators bad directed tbe
Poatmaater- General to pay them the fafl
amount awarded in gold or in silver, at liis
discretion, a mandamus would lie to compel
him to determine in which metal he would
pay; and having decided that to enforce the
actua) payment. Such is the doctrine of aU
the cases, G Wend, 122, 144; 10 Wend. 28»;
13 Piclc. 225; 3 Dall. 42; 1 Paine, 453. In
order to bring himself within tbe correct prin-
ciple of the Taw upon this subject, the Post-
master-General must abow that under tbe act
of Congreaa he was authorised to give tb«
credit claimed, or to withhold it at bia pleasure.
His argument ia, tbat becauae he must ex-
amine the proviaiona of the law. and the award
of the aolicitor, and compare tbfm together to
aee whether the latter is within t^ power
delegated by the former, he must exercise
judgment, and conaequently poasessea ■ discr*-
tion, Becauae some preliminary examination
may be necesssry in order to ascertain tbe
precise duty which is enjoined, does the obli-
gation to perform tt, when ascertained, becoow
leas imperative! If, in order to know cSa-
tinctly what is bis duty, it l>e necessary lo ex-
amine one statute or fifty, one section or many,
the simple statute, or in connection with that,
an award made under it is whclly tmmatrrial,
*a sheriff bss the same diacrction in the [*5ta
service of all process; vet his act is pnrelf
ministerial, and be may be enforced to exemt*
tlie writ placed in his hands,
2- A mandamus can be issued only ■• •
meana of exercising ft jurisdiction already VMt-
Pcten 11.
H38
KkNDJ
. Tub IJkitui Stat».
ed. Rot fen- the pnrpoac of obtaining jurisdic-
tion. The argument upon this point is so
4iogularly deficient in precision that it iaeome-
what difficult to determine its exact scope.
He wye the Circuit Court has no original
jurisdiction to adjudicate upon claims of con-
tracts upon his department. From this
prc^sition be deduces the inference that all
tbs jurisdiction which can be exercised must
be of an sppetlate chsraeter. Then, from the
fact that the act of Congress makes the award
filial and eoneluslve, with no power of raviaal
of reversal veated sny where, he reaches the
eonclusion that the court possesses no appellate
jurisdiction.
The jurisdiction which hsB been exercised is
not of that original kind which is thus denied
to exist; for no action has been instituted
against the department for the purpose of ad-
i listing the claims of the contrartors; the ez-
stence and extent of those elaJma had been
•Ircsdj determined by the special tribunal to
which the power was confided.
No attempt has been made to subject
that decision to the review of the Circuit
Court, BO as -.ither to reverse or change it.
The apppllate power, therefore, which he de-
nies, has never been claimed by or tor the
court; such high power has been claimed snd
exercised by himgelf alone. The Circuit Court
aasumes the conclusive character of the award;
the object of this proceeding la to enforce, not
to annul; to execute, not to reverse.
The result, then, of this Inquiry is, that the
caae is one in which the rem^y by mandamus
!■ the appropriate remedy, according to the
rneral principles of law governing that writ.
CTancli, 103, ler, 188, 100; 6 Bac. Abr.
[new Umi*. edition], 261; 2 Brock. 11. Further
illustration of this position wilt be found in the
■ubaequent pvta of the argument.
t. Unless, then, some const itutionki objec-
tlona fatal to our claim can be presented, or
some deficiency in the provisions of the law to
meet the cane exist, the Circuit Court has not
erred in awarding the mandamus. It ia, how-
erer, objected, that under the Constitution no
fluch power can be vested in the judiciary.
This objection, as presented in the return.
Is, with chBracterisIic modesty, put forth, in
the shape of a douljt: "It is doubted whether
ftTO*} *uader the Constitution of the United
States, it confers on the judiciary department
of the government authority to control the
executive department in the exercise of its
functions, of whstever chsracter."
It appears to be aaaumed in the objection, aa
thus prenentcd, that the jurisdiction claimed
on behalf of the judiciary Is a power of con-
trol over the executive department. Much of
the argument employed In thia case has been
directed against the mere figmenta of the
Imagination of this high functionary.
The mutual indfpendence of the three great
departments of the government is assum '
throughout our entire argument. That each
to act In the performance of Its appropriate
functions, uncontroDed by either of the othersj
that each possesses all the powers necessary to
the full and complete exercise of its own au-
thority; If denied in any part of thia case, is
denied only by the Paatmast«r -General, and by
hia oounad.
The language of the Constttnttoa tn descrlb-
g the extent of the judicial power is large and
comprehensive. Art. 3, sec. 2. It compre-
hends all caaea in law or equity arising under
the Constitution and laws of the United SUtes.
No limitation is expressed, no exception made
in favor of any description of case, any char-
acter of party, or any occupant of office. No
individual is in terms exempted from this
jurisdiction, in consequence either of the office
lie may hold, or the character of his act. The
judicial power embraces all the cases enu-
merated in the 3d article of the Constitution.
1 Bald. 64S. A case aifei-'tin^ the Postmaster-
General or the President, is still a case under the
Constitution, Cohens v. Virginia, 6 Wheat. 370.
It must be obvious that the (]uestion imme-
diately under discussion involves rather an in-
quiry into the extent of legislative than of ju-
dicial authority. It is not what haa Congress
designed to do; but, under the Constitution,
what may it do!
The Postmaster -General, and the department
of which he is the head, are the creatures of
legislative power. Article 1, see. 8, f T, of the
Conslilution, confers upon Congress the power
to establish postollires and post- roads. All
the legislation of Congress upon this subject is
under this clause. All oflices of the United
States, except in cases where the Constitution
otherwise Drovidea, must be established by
Congress. 5 Brock. 101.
If Congress may, then, create the office, pre-
scribe the duties of the ofGcer, determine what
he may do, and prohibit him from doing
'other things, may not the same power [*5T1
constitutionally declare to whom be shall 1m
responsible, and confer authority where it
pleases to enforce such responsibility I
Such has been the uniform action of Con-
gress, and its validity haa never yet been ques-
tioned. The Act of September 22, 1789, 2
Laws U. S. 53, sec. 1, which erected the de-
pertment, provides that the Postmoster-Gencrai
shall be subject to the direction of the Presi-
dent In performing the duties of his oflice. The
Act of Feb. 2, 1830, newly organixing the de-
partment, places the district attorneys, In rela-
tion to certain duties, under the control of the
Postmaster-tiencral. By the Act of February
20, 1792, 2 Laws U. S. 245, sec. 4, the Post-
master-General is to render his accounts to the
Secretary of the Treasury, and to this extent la
subject to the authority of that functionary.
By the 24th section of the same act, he is mad*
responsible for certain omi salons, and certain
moneys are recoverable from him. By the very
terms of the law he ia made amenable to the ju-
risdiction of courts.
Are these provisions, one and all, unconsti-
tutional? If not, how can the constitutional pow-
er of the same Legislature to invest Its courts
with authority to direct the ofllcer to act, as well
as to punish him for cot acting, be denied!
The argument of the Postm aster -Ceneral,
and of the Attorney -General, assumes that tho
Postoflice Depnrlment is an essential pnrt of
the etSeutive department of the government;
and from this position infers the want of the
jurisdiction claimed. The assumption has been
shown to be inaccurate; but even if true, it ia
not easy to perceive the connection between the
premises end the eonclusion.
BTt
SuPBBHK CouKT or TUK tlFim Btatw.
Wa KM rcfcTTM) to tbe itrbates in tbe conveit-
tlon to ahow tbe anxiety of that bod; to preserve
•epar*t« and distinct the three great depart-
tmnta. I will, in return, refer to the 4Ttb and
to the succeeding numbcn of The Federalist,
for a correct exposition of thia maxim of polit-
ical philoaophy, and it* practical adoption in
our CoQititution.
Starting from thia basla, the Conatitution la
appealed to; and b; the aid of aorae interpoia-
tioa and some extravagant interpretation, we
are told aubataDtiailj, if not in terms:
1. That the clause in tbe Constitution which
provides that tbe executive power ahall lie vest-
ed in the President, actuallj confers upon him
all that power which, in anj' age of the world
and under any form of government, haa been
vested in the chief executive functionary;
whether Icing or ccar, etnperor or dictator.
£. That the clause which impoaea upon the
07 9*] executive the duty of 'seeing that the
laws are faithfully executed, contains another
large grant of power.
3. That, as a means to the performanea of
this duty, he Is invested with the power of ap-
pointment to and removal from office.
4. That the power of appointment and re-
moval carries with it the power to direct, In-
•truct, and control every officer over whom it
may be exercised, as to the manner in which
he shall perform the duties of bia office.
My observations upon tbeae pointa ahall be
few and brief.
Tbe flrat proposition was, perhaps, for the
flrat time distinctly advanced by General Ham-
ilton, In his Letters of Pacificus, No. I, p. &35.
A great and revered authority, but subject to
oocaaionat error. It was fully answered by
Mr. Idadison in the Letters of Helvidius (p,
6M, etc.), and has since remained dormant.
The second is now for the first time broadly aa-
serted. It* dangerous tendencies — its hostility
to every principle of our institutions, caimot be
exaggerated. The true signification of this
part of tbe constitution I take to be simply
this, that the President ia authorised to employ
those powera which are expressly intrusted to
htm to execute those laws which be is empow-
M*i to administer; or, in the language of the
late Chief Justice, he is at liberty to employ any
meana which the Constitution and law* place
under his control. 2 Brocicenb. 101.
The third proposition is a palpable and un-
warrantable mterpolalion of the Constitution.
The fourth, if the power claimed is derived
from the power of eppointment, would make
the judges dependent upon executive dictation;
if from that power and that of removal, con-
i^ntly, would make it the true theory of the
English constitution, that the king might in-
Btruot, direct, and eontrol tbe Lord Chancellor
in the penFormance of his Judicial duties. It
would make him tbe keeper of the Chancellor's
eonacience.
The right to command, direct and control,
iBVolrei the correlative duty of obedience. No
oBcer can be criminally or civilly punished for
oba^ence to the lawful command oi a superior,
which be Is bound to obey. This doctrine,
tbm, aaaerts the entire Irresponsibility of all
oAean, except to thia one superior.
One of the practical Infere&cea from thea«
premisea ia that the judiciary department can-
not axMute ita own JtidoBwaAn ■ F .
diatinetly avowed by the Poatmaater-Oocntl !■
bia return (pp. 127, 12S, I2ir). and asaertvd, to
terms equally distinct, by the Attom^-Oai-
eral, in p. 162.
*The Attorney-General presaea this«r-[*ft1S
gument stiU further, and, from the abatdnte ina-
bility of the courts to sxecuts their judgment ia
the case of a peremptory mandanua, "without
the consent of tbe executive department," CMMsd-
ers the inference aa clear that no court has tha
capacity "to iaaue auch a writ." How obviona
ia the inference. If this be correct, that tbtf
court* can issue no process, and sxends* no ju-
risdiction of any description. If thia proceas,
to use the expression of the Postmaster -Gen-
eral, may be "atruck dead" in tbe handa of tbs
marshal by dismissing him from office, may not
every capias, and aummons, and subpoena, and
attachment? The law, however, has provided
that in case of removal from office the -"'«''«'
may, nevertheless, proceed to execute the proc-
eaa then in bia handa.
While adverting in thia argument to ques-
tions rather of political than of legal actence,
it is aomewhat aurprising that theae learned
gentlemen have overlooked one peculiarly im-
portant in the consideration of thia lubject. A
maxim fully embodied in our institutions, rec-
ognized by every commentator on the Constitu-
tion, whether judicial or politieaL This court,
haa, upon mora than one occaaion, laid down
the position that the judicial power of every
well organized government must be co-exten-
sive with the legislative and executive authori-
ty. Cohena v. Virginia, 6 Wheat. 354, 382.
264; Osborn v. The Bank of United SUtcs, •
Wheat. 818.
The true and sound constitiitionBl doctrine
upon tide subject is, that whenever the Legisla-
ture may conititutionally create an office and
prescribe ita duties and its powers, they may
make the incumbent responsible to the judi-
ciary for the faithful performance of Utos*
When the Ijegislature may ri^tfully eom-
mand an act to be done by a public officer, tbej
may confer upon tbe judiciary tbe power to
enforce its performance, or to punish its omis-
sion. In fact, the judicial power is never ex-
erdsed except for the purpoae of giving effeet
to the wiU of the LeglsUture. B Wheat. 866.
If, then, there be any limitation to, or any
exception from this general rule, or tbe com-
prehensive language of the Constitution in coa-
ferring the judicial power, let it be abown in
the instrument itsell. Such is the doctrine a€
this court in Cohens v. Virginia, 6 ^lieat. 378,
and in Rhode Island v. Massachusetts, at thia
term. If there be anj exception embracing
this party, excluding him from the jurisdictie«
of the court, let it be shown. If he ia enti-
tled to any exemption, let hiro cxbibit hi*
ridit.
scribes the extent of the judicial power, anJ. . _
that which creates the executive dtpArtment.
In neither can it be discovered. On the i
KuDALi. T. Tbk Unitd States.
B74
tba ground upon whlcb thia ex-
ftiucd baa been prasentKt, it ieemi
to be derived from the ofEctal cbaracter of the
p»tty called upon to perform the duty enjoined,
and from the character of the act whicb '
required to execute. This ia not, howcv
b« found in any provision of the Conatit
or in the geniu* of our government.
That executive officers, as such, are amenable
to CQurta of justice for their official acta, would
almost aeem too plain for argument. Such haa
e*er been the law in England. In that country,
exemption from legal process is conGned ex-
oluiirely to the monarcli, and certain portions
«f tha royal family. Y«t anciently, when writs
were in general mandatory to the party, the
king might lie sued aa a private party, the form
being Fnecipe Henrico, Rcgi Anglite. S Bac.
Abr. C71; Gwil. Edw. Edit. Prerog. B. T; 43
E. 3, 2i. To the extent to which ft existed
in England at any time, it was a privilege,
part of the royal prerogative, purely pergonal
Mid incommunicable. Another branch of the
■ame prerogative exiited under which the king
grant^ writa of protection to such of his aub-
jecta as he might bftve occasion to employ in
tfifl public BPrvice, exempting them from ar-
reat. Com. IMg. Prerog. D. 78, 79, BO, Bl,
82. This was personal and temporary. Wth
thaae exceptions, wholly Inapphcabie to the
present times and to our institutions, no such
principles as the Postmaster-General invoices
ever existed in England; and since the Revo-
lution in 166B, it is believed no writ of protec-
tion has been issued.
Frequently before, and uniformly since that
great event in English history, junediction has
been exendsed by the vsrious courts of Eng-
Isind over the highest dignitaries of the realm,
in relation to their official acts, tarough the in-
■trumentality of such writs aa were adapted to
the jMrticular cases that occurred, without dis-
tinction. Offices are forfeitable for malfcaB-
•nce, and for nonfeasance, and this forfeiture
enforced by a criminal prosecution. In 2 Salk.
«26, vrill be found a short note of Lord Bella-
B7S*} mont's case, who was prosecuted "for
■Ji official act as governor of the then prov.
inoe of New York. In Klostyn v. Fabrigaa,
Cowp. 161; II Harg. St. Tr. 162, Lord Mans-
field held that an action might be sustained
by a native of Minorca; emphatically, aa he
•aya, against the governor of that island tor aTi
Mct of olBclal misconduct. In this country, such
cases are numerous. Hoyt v. Oelston la famil-
iar to this court. Livingston v. Jefferson was a
case in which the defendant was sued for en act
done by him aa President of the United Statea.
1 Brock. 203. The recent cases of Tracy v.
Swartwout, 10 PeUrs, 80; and Elliott v. Swart-
wout, 10 Peters, 137, are also cases of this de-
•criptlon.
Such Jurisdiction la In terms recognized bj
the Constitution In the clause relating to im-
peachment, and is distinctly admitted in various
acta of Gongreaa. It is not necessary here to
advert to man than one or two instances. The
Foatoffioe Act of I7B2 has been already cited;
but the Act of Feb. 4, 181S (4 Lews U. S. 786),
in aome of its provisions, recognises the amena-
bility of the public officers of the United SUtea,
whether dvil or military, to the judicial tribu-
unit, even of the States, for their offieiU aet^
To a certain extent, tliia reaponsibility U eon-
ceded In the return on record (p. 151). This
concession is a virtual surrender of the entire
case, unless the Postmaster -General, while ac-
Icnowl edging bis general responsibility, shall
insist upon and sustain a special exemption
from this particular process. Be admits that
the court poBsesaea the power to punish him if
he does wrong, but denies that they can com-
pel him to do right. A capias vrill lie notwith-
standing bis high oSce: this ^wer may be
constitutionally vested in the ccurta. A habeas
corpus will tie if a citizen la wringfullyimpria-
oned by the highest dignitary, and an action Im
sustained for the illegal arrest Damage may
be recovered for an illegal act, or an injunction
issue to restrain it. This particular remedy by
injunction ia given by expresa statute, in certain
cases in which the United States Is a party.
Act of May ;6, 1830; 3 Stoiy, 1791; and lis
validity recognized by this court In The United
States V. Nourse, 6 Peters, 470; and impliedly
in Cathcart v. Robinson, S Peters, 284; in Arm-
strong V. The United States, 1 Peters's C. C. R.
40; 0 Wheat. 842, B43, 146; 1 Baldw. 214,
216.
If all or either of these writa may Issue, why
not a mandamus! So far as authority goes,
we have the lesislative opinion on the quea-
tion in the Judiciary Act of 1786, expressly con-
ferring this power upon thia court; and tha
force of this authority is not weakened by tha-
circumatance that the unconstitutionality of
that proviaion was 'subsequently decid- [*BT6
ed- Marbury v. Madison, 1 Cranch, 137, con<
tains the deliberate opinion of this court on the
very point; and although the authority of that
decision has been questioned by Mr. Jefferaon,
In hia private correspondence, yet before a legal
tribunal little weight can or ought to be at-
tached to his opinion.
The full authority of that esse has been rec-
ognized by all the distinf^uishcd commenta-
s; by I^ne, Story, and Kent; by this court,
M'Intyre v. \Vood, 7 Cranch. 604, M'Cluny
Silliman, 6 Wheat. SUB, and in Ex-parte
Crane, 6 Peters, 100. In no one judicial de-
n, in the elementary treatise of no jurist,
le authority of that case upon this point
impugned or questioned.
But the Attorney -General auppoaea that this
process Is tpplicableonly to inferior magistrates;
tliat it grows out of a general supervisory juris-
diction, and he finds no instance in England of
its being directed to any officer of the eiecutlT*
department. The Circuit Court, In its opinioa,
while partially falling into the aame error of
fact, yet distinctly avoids the erroneous infer-
of the Attorney -General.
is is, however, a clear mistake; and It is
er of great and just surprise that it should
have been committed. It would not, however,
iry material if no dirert precedent could be
produced; for to employ the language used In
10 Mod. 40, 64, if there be no precedent In
which the writ has been Issued in such a esse,
it is tK«ause no such case has ever before been
presented to a judicial tribunal, and no preee-
dent can be found in which it has been denied.
But the precedent and authorities In favor of
this and analogous proceedings, are numerMM,
both In ancient and modern daya.
Neville's case (Plowd. SB2) was in all lU a»-
76 iiai
BT«
SuPBEHi CouBT or TBI UNrTiD Statu.
■enttkl features k mandamiu to the officers
tbe Exchequer, commaniting them to pay a
certain sum of money out of the royal treasure.
Wroth'B case, Flowd. 4^8, was another c»se of
the same character. The validity of such writ
Is expressly recognized in F. N. B. (Hale's edit.
121, F). Writs of mandamus anciently lay to
the ew^heator, 6 Bac. Abr. 26S; D^er, 200,
248. The whole proceeding is enforcing pay-
ment of debts due by the lovereign to the sub-
ject, is exhibited in t^e Banker's case, 14 How.
St. T. I; vbich is one of tbe most remarkable
■nd interesting cases, as well judicially ,.
litlcaily, to be found in English history. In
Vernon t. BI acker ly, Barnard, 377, 39S, It was
considered by the Chancellor as the proper
remedy. In Rankin t. Uuskiason, in 1830, 4
Simon, 13, and in Ellis t. Lord Grey, In IB33,
S Simon, 214, the analogous process of injunc-
&77*) tion nas swarded *to the highest pub-
lie functionaries in Great Britain, commanding
tbem to do what the plaintifl' in error contends
no court can do. And in The King v. The
Lords Commissioners of the Treasury, In 1735,
the whole court of King's Bench concurring,
a mandamus was awarded to those high on-
cers, eomtnanding them to do what this party
is required to do.
Is the American citiicn lees favored by law
than a British snbjectl Are the officers of this
remment clothed with loftier powers, and
they possess higher attributes than those
with which the Prime Minister of the British
crown, and his immediate associates ore In-
vested T
Is there anything in the character of our In-
stitutions which can create a difference! Such
Is not the doctrine in the great State of New
York (10 Wendall, 26), in the case of a manda-
mus to the canal commissioners, charged with
the interest and management of the great works
of internnl improvement. In Pennsylvania, the
same law prevuiLa (2 Watts, 617); in Kentucky,
Craig T. Register of the Land-Oflice, 1 Bibb.
310; Hardin v. Register, etc., 1 Ut. Sel. Ca.
28; The Commonwealth v. Clark, 1 Bibb. 531;
Divine v. Harvey, 7 Monroe, 443. In Ohio,
Ex-parte Fenner, 5 Ilam. 542; and 6 Ohio Rep.
447, and the only case cited as contravening
our ground (1 Cooke, 214) is a decisive au-
thority to show that such also is the law of
Tennessee.
But, after the extensive and recent prece-
dents set by this court, is It possible further to
question the constitutional power of Congress
over this subject r What are the cases of The
United States v. Arredondo, 6 Peters, 783; The
United States t. Huertas, 9 Peters, 172, 173;
Mitchel T. Tbe United SUtes, B Peters, 762;
Soulard V. The United States, 10 Peters, 106;
Tbe United States v. Seton, 10 Peters, 311;
Mackey v. The United States, 10 Peters, 342;
Sibbald v. The United States, IQ Peters, 313!
Each and every of these cases recognizes the
authority of the judiciary, under an act of Con-
gress, to issue its mandate to a ministerial
officer commanding the performance of a min-
,isteria1 act.
8. The only remaining question for discus-
■iOD ia, has Congress, in this particular instance,
authorized the issuing of this writ, and exer-
eised its constituClanal power?
To determine .thl> question, reference must
be had to the law organizing the Cireait Ooort
of this district. The Act of 27th Febman,
1801 (Davis's Laws, 123}, contains three lee-
of ■Maryland, aa they now exist, shall ['BTI
be and continue in force In that part of th«
sold district which was ceded by that SUU to
the United States, and by them accepted. IIh
third aection provides tnat there shall h« a
court, which shall be called the Circuit Cour^
And the said court, and the judgea thers-
of, shall have all the powers by law vested hi
the circuit courts, and the judges of the dreuit
courts of the United States. The fifth aectlM
provides that said court shall have cognizance
of all cases In law or eouitv between parties,
both or either of which shall be resident, or be
found within said district. The worda of the
clause conferring jurisdiction will be found as
comprehensive as those employed in the Cod-
atitution; and if I have been successful in
showing that Congress may confer such autlior-
ity, tbe fifth section shows that It has been, in
fact, granted.
There are no words of exemption or limita-
tion which can apply to the case at bar.
The Attorney -General argues, 1. That the
decisions of this court in ITIntlre v. Wood, 7
Cranch, SD4, and in ITCluny v. Sillimaii, S
Wheat. 6BS, show that beyond the IMstrict
of Columbia, the courts of the United States
exercise no such jurisdiction. 2. That the
Grcuit Court erred in supposing that the pio-
n of the Act of 27th February, 1801, ex-
tend the powers of the Circuit Court in this
district beyond those of the other circuit courts.
After quoting the language of the Judicial
Act of 178S, in relation to circuit courts In gee-
eral, he institutes a comparison between that
and the Act of February, 1801, and insists
that there exists no eubstantial difference be-
tween them; and that the inferences deduced
from the language of this court, in Mlntire v.
Wood, are not only erroneous, but that th^
have been repudiated in M'Cluny t. Silliman.
1. The case of M'lntire v. Wood came before
this court on a certificate of a division of
opinion from the Circuit Court of Ohio, and it
was decided that the Orcuit Court had no
jurisdiction to issue a mandamus to the register
of the land-office. That decision rested upon
>rO¥iaion8 of the eleventh section of the Acx
'89, which was held not to confer the juria-
on claimed; hut the court exprrsaly say.
that bed that section covered the whole ground
of the Constitution, in other words, vested aQ
the power which the constitution sutliortaed,
the result would have been dilTercnt. Awaim
that the language of that section waa th^
restrained, and that of the 27th February, ISOI,
unlimited, we regarded the esse so triumph-
antly 'cited against us, as an authority ["STt
' I our favor. In Wheat. 300, the same esM
nder another name presented the questies
hether a Stat« court could award the m«>-
damuB desired. In 0 Wheat. 698. It ctm»
again before this court, presenting both que*-
tions. On this occasion, the ease of H^tir* v.
Wood is re-examined, and Its doetrinca re-af-
firmed, and the very question now at bar v«
adverted to in the opinion of the court, and av
view of it luitained This Is again conBraH
1BSS
KKitOAix T. Tbb Ubitbd Statm.
87*
bf tbe Bulnequfnt lanpioge of the court, where
it is observed: "Dut when, in the caea of Mar-
bury T. Madison, and that of M'lntire v. Wood.
this court decided igainat the exercise of that
power, the idea never presented itself to aay*
one, that it waa not within the scope of the
judicial powers of the United States, although
not vested bv law in the courta of tha general
government.
Z. There is. In our judgment, a broad and
essential difTcTcnce between the provisiona of
the two statutes. The Attorney -General brings
the two ennclments into juxia position, com-
Krea their phrascotogy, and treats the two
VB after the fashion of an algebraic equation.
The 11th aeetion of the Judiciary Act of
1789 provides that "tbe circuit courts ahnll
have original cognizance concurrent with the
courts of the aevernl States, of all suits of a
civil nature at common law or in equity;" etc.
The 5th section of the Act of 27th February.
1801, enacts, that "the said court ahall have
coeniionce of all cases in law aud equity," etc.
It may be remarked:
1. The subject matter of the two laws is
essentially different. The object of the first
law was to organise and create courts purely
federal in their character.and therefore limited
both as to the subject and parties over which
they mij^ht take coj^nizance ; the object of the
other was to provide a tribunal to administer
not only the lows of the United States, but tbe
Maryland law which was in terms retained,
and without dislinclion as to the parties.
2. The Act of ITSS was designed to compre-
hend aU the courts of the Union, the Supreme,
the circuit, and the district courts. The first
was to be organized; but the extent of its juris-
diction, as conferred by the Constitution could
neither be enlarged nor diminished. The other
courts were to be organized, aod between them
was to be apportioned and distributed auch
portion of the residue of the judicial power uf
the sovereign as it pleased to vest in them re-
580>1 'By tha 14th section of this act, the
power to iHSue a mandamus in a case like the
present, is, in terms, given to the Supreme
Court. In interpreting the language, it la im-
material that this was afterwards, in Marbury
V. Madison, held to be unconstitutional. Ex-
parte Crane, 6 Peters, 20B. The express grant
to the one court, excludes the idea of an im-
plied grant to another tribunal to exercise the
same authority.
3. Another distinction ie atriking and impor-
tant. The laws of Maryland are expressly con-
tinued in force; all the rights and remedies
furnished and sanctioned by those laws are
preserved- By those laws, a mandamus would
lie to a public oflicer commanoing the perform-
ance of a ministerial duty. This is to a certain
extent conceded by the Attorney -General (page
148). This concession is a virtual recognition of
■n easential dilTcrence between the two eoarta.
In making this concession, however, he de-
nies Its application to officers of the United
States, because no such writ could be addressed
to them under the laws of Maryland. This
•xception annihilates the admission, because
all (^cers within this district, even the lowest
vffieera of a corporation, deriva thair authority
from acts of Cougresa.
ff !<■ ed.
The distinction attempted to ba drawn Ii
rallacious. If the courts of Maryland possesaed
the jurisdiction over an officer of that Com-
monwealth, the transfer of sovereignty would
not vest the same power in the courts of the
district. If the power over the Maryland oHiecn
terminated by tne cession, and that over olTicen
deriving their existence from Congress did not
arise, the courts of the district do not succeed
to the powers of the Maryland courts; nor do
the citizens of the district preserve those rights,
and retain the same remcdica to which they
were entitled before the cession.
The effect of a cession of sovereignty is mIS'
apprehended. The same lawa are preserved,
the game rifthts continued, and there exists the
same remedies for enforcing them. The rela-
tions between the subject and the sovereign are
the same; the parties between whom these n-
lations subsist are different.
This admits of various illustrations. An In-
habitant of Florida, before the acquisition of
that territory by the United States, owed al-
legiance to the King of Spnin; he would have
incurred the guilt and punishment of treason
had he borne arms under the United Statea
against Spain. Since the cession he owes the
same allegiance to hia new sovereign and would
incur the same penalty were he to aid Spain
•against the United States. The law is [•»8I
unchanged, but the parties are changed.
So take the history of the mandamus, aa
given by the Attorney- General in his opinion.
The colonial courts did not succeed to the juris-
diction over the same ofHcers aa the King's
Bench possessed, nor do the State courts. Our
courta exercise a jurisdiction analogous to that
of the King's Bench, and issue a mandamus in
analogous cases to persons holding analogous
relations. This is our argument
3. The 11th section of the Judiciary Act
confers upon the circuit courts no other juris-
diction than such as may be issued concurrent-
ly by the State courts. The design and policy
of thia provision, and the true meaning of this
enactment may be found in 1 Kent, 305, etc.;
3 Story on Const. fllB, etc. Aa no jurisdiction
was or could be conferred by Congresa on the
State courts, the reference to them was merely
to furnish a standard by which to measure that
of the circuit courts held within their territory.
It is, then, a fatal objection to the jurisdic-
tion of a circuit court under the Act of 1789,
that a State court could not take cognizance of
tbe case. That jurisdiction is still further hm-
ited by being restricted to particular persons.
No such limitations are found in the Act of
ISOl. Upon this court is conferred general
jurisdiction over all eases in law and eauity.
Until a special act of Congress conferred the
jurladiction, the Poat in aster -Genera! could not
sua in the other circuit courts; they had no
jurisdiction over cases arising under the patent
laws or copyright laws, as auch. But over all
these eaaea the Circuit Court of this district al-
ways possessed and exercised jurisdiction.
The circuit courts, under the Act of 1780,
could not entertain jurisdiction of cases merely
on account of their character or origin; they
could not Issue writs of mandamua or quo war-
ranto to operate upon oCQcera or courta of tha
Union, because over such cases the State courta
bad no OMicurrent jurisdiction. The Qreuit
isov
ni
Btn>BKm Comr or m Unm BriTn.
IIM
Court of thtf dlrtrict hu from ita origin exer-
cised this juriwliction.
4. It ia Mid that in tlie Circuit Court a dif-
ference exists between the couniel and the
court aa to the grounds upon which thia juris-
diction was claimed. To a certain extent there
was aome difTerenca. Independently of the
px)unds that hu been mentioned, I asserted it
«■ derivable from the 3d section of the act,
which confers upon the court al] the powers
vested ly law in the other circuit courts. The
ttSa*] onljr taw then in existence referring
to them, was the Act of 13th Februarf, IBOl,
wfaich was afterwards repealed.
It was intimated by the court that It derived
its powers from the 8d, and ita jurisdiction
from the 5th aectlon. Strictly speaking, pow-
ers are not juriadiction ; the former are the
means by which the tatter ia exercised. But
in Drdinnry parlance, thcj are often employed
indiscriminately; and in a!1 cases, the one im-
Rlies the other. Wherever jurisdiction ia con-
■rred, power to exercise it is implied; wherever
power la granted, It is for the purpose of exer-
cising jurisdiction. The word 'power" ia that
which is alone employed in the Conatitution;
and in the acts of 17S9 and IBOl, cogoir.ance is
used fts an equipnllent expression.
It is not very important to which section we
especially refer. If this be a case in law or
equity, and either of the partiea have been
fotmd here; ft ia a case over which the Juris-
diction of the Circuit Court rightfully extends.
If It be not "a ease," what ia it that is the aub.
ject of discussion T It is the claim of a legal
right, pursued in court by an appropriate legal
process. Should any doubt exist aa to the true
construction of the Act of 27th February, it
should operate in favor of the jurisdiction ; for
if this court was right in Martin v. Hunter, 1
Wheat. 320, 330, in asserting that it was an
imperative duty in Congress to vest in some
tribunal or another all the judicial power of the
Union, no implication can he admitted to ex-
clude any class of cases where the words of the
statute ere sufficiently comprehensive to em-
Mr. Butler, Attorney -General, in replft
It has been correclly said by the learned
counsel for the defendants in error that all the
(acta alleged in the petition are admitted in the
return. On the relators' own showing, it waa
believed that the mandamus could not legally
be issued: the return, therefore, set up no trav-
craabte matter of fact; but merely stated ob-
jections, in point of law, to the rerntors' appli-
cation. It was substantially a demurrer to the
petition. The authority and duty of the court
to issue the writ on the case stated by the re-
lators, were, therefore, the only questions in the
court below; thcjr are the only questions here.
They are purely questions of law; and they
aeitfier require, nor authorite, any Investiga-
tion of the merits of the original controversy.
And yet the learned counsel have felt them-
selves at liberty to Indulge in reiterated and
unsparing censures of the ptaintiff in error;
S83*1 'not only irrelevant to the pointa to be
decided, but founded on matters, in some cases
Bot contained in the record, and in others, di-
rectly repugnant to it.
For example: The official action of the plain-
tiff In error in suspending the aztra allowances
1104
made to the relatorv, by hb prrdeceuor, hH
been denounced as downright usurpation; il-
legal in itself, and cruelly oppressive: with how
much justice, let the very words of the reiatora
tell us. In their Rrst petition to Congress, after
stating the extra allowances made to them,
they go on to aay "that their account being on-
settled in the books of the department, whea
the present Postmaster -General came Into of-
fice, he considered himself bound, in the adjust-
ment of their accounts; to reject any crvditt
for the allowancea thus made to them for thia
extra dutv. In his construction of the postoffiee
laws, he also felt himself without any legal mu-
thority to adjust the claims, and mnkeanyrom-
penaation for theae services; and further, con-
sidering that there had been no legal aanctiOD
for the allowances thus made to your memo
rialiats, he fctt bound, by his duty, to atop Ibr
regular contract pay of your memorialiati. till
the sums they bad thus received from the de
partment (and which he considered as overp.iv
mcnts) were refiindpd to the govf rnmcnt. TnoM.
views thus entertained hy the Postmaster-Cen
eral of the po<!toi^<v laws, and of the power* and
duties of that deportment, wire, at the tm^dhI
of TOUT memorialists, submitted to the decision
of the Attorney.Gcneral of the United Statr*
They refer to his opiuion, accompanying tlii-
memorial, by which it appears that he roneiir-
in his view of these legal qiiet<lians with rh
Postmaster-General; so that no other rcine-l.
is left to your memorialists in a esse, aa th"
conceive, of very peculiar hurdsliips, exci |
that which is Intimated in a passage of the Ai
torn ey- General's opinion, and expressed in re(
erence to this and similar claims, in the to'
elusion of the Post mas ter-Ueneral's report I
your honorable body," The remedy reterrr,
to was an appeal to Congress, to whose favor.
ble considerntion the case was recommended I>.
both those officers. The injustice of the coi>'
Elaints on tills head is still further aggravalc
y the fact (forming part of our public history
that the allowances in question, and other* ■.'
the like nature, had been the subject of inve~
tigstion by Congress; and however ancient tl-
praelice, or innocent the motivfs, in whi< I
they originated, had been conceded on all han >
to he wholly illegal. This entirety distlngnlsh'
the cose from that of ■Flitcbrown. 7 I'SSl
Peters, 4S, cited by the other side; where \\
was held hy this court that the Secretary '■<'
the Navy had legal |K>wcr to make the allow
ances then in question. Under these cirrum
stances, the aceounta of the relators being un
settled and the allowances not actually paid,
the plaintiff in error might well think it his
duty to confine the credits of the relators to
such items as were authorind by law; and to
refer any claims not so authorized to the deri-
sion of Congress. On the case stated by him to
the Attorney -General, his course n-as sirstained
by that officer; and the relators in their appli
cation to Congress did not attempt to queatroo
either the legality of hi* conduct or the up-
rightness of his motives.
Equally groundless and repugnant to the rec-
ord were the assertions that the ptaintiH is
error had set at dellance the act of Congrtaa
and the authority of the solicitor; had tre*t#d
with contempt the opinion of the Attorney-
General on tha eonatruetion of the law; or M
PMcn IS.
Kemdall t. Trk Vmna Staxm.
erar given aut the monitrmis pretnBlofi thftt
the relators "hftve no other remedy tban sueb
u he may grsi^ioiiBly please to extend, or that
may be found in the power of the ezecutive
remore him from ofTice," etc., eta.
It >ppe«ra by the record tbat the auapended
allowances amounted to one hundred and
twenty-two thouEand one hundred and one dot'
lara and forty-six cents, being for services prior
to April, 183Q. The claim for these atlowances,
until after the act of Congress, constituted the
whole subject of controversy. When the
Bubjpct came before the solicitor, the relators
claimed a large additional sum (forty thousand
six hundred and twenty-five dollars) for similar
aliowanras after Apri), 183S, and until the end
of December, in that year, the period when the
contracts expired. It certainly was not strange
that the plaiiitilT in error should doubt as to
the Intention of Cangress to five the relator*
this additional sum. When has it before hap-
pened that a party whoae claims have been re-
jected by a department has obtained from Con-
gress a law covering not only the sum in dispute
but authorizing a claim for a large additional
amount? Congrpts, however, have the power
to piiss such a law; and if they think that jus-
tice requires it they should imdoubtedly do so.
This. thesoticitor thought they had done in the
present case. On this point, he requested the
opinion of the Attorney -General. That officer
concurred with him. He thought, with the
solicitor, and still thinks, that the words em-
ployed in the act gave the solicitor authority to
deride on dnims on the contracts described in
&8&*} tlie law, for services *after as well as
before April, 1635. The plaintiff in error, who
had not been consulted as to this reference,
cmnplaiued of the manner in which It was
made, and also questioned the solicitor's ri^ht
to call for the opinion. In this latter abjection
he proved to be correct; the Act of May ESth,
1830, which authorises the solidtm of the
treasury to ask the opinion of the Attorney-
General, referring exclusively to "suits, pro-
ceedinfm. and pros ecu ti one," under the care of
the soliritor, by virtue of hia general official
duty. This did not occur either to the solicitor,
-when he made the reference, or to the At-
tomey-Gencrsl when he answered it, bnt waa
ftfterwarda edmitted by both; and it certainly
may well shield the plaintiff in error from one
of the charges made against him — that of con-
temning the opinion of the law otSeer. And
beiidps, one of the main (pounds on which he
relied wa<>, that in truth there waa no contract
in the rnec: and if he waa right on this ques-
tion of fiict, then neither the opinion nor the
law sustained the award.
So fsr from setting Congress at dellanee, he
expressly declares in nis letter to the President
of the 27Ih of December, IBno, "that inasmuch
as Congress is now In session, the most ap-
propriate resort is to that body for an explana-
tory act. which, if it confirm the opinion of
the solicitor, I will implicitly obey. Again,
In his letter to the President of the tUt of
January, 1837, after saying that the balanee
rannot be pnid without further legislation, he
adds, that "it Congress thinks proper to re-
quire the payment, it will be his duty to make
it." The BBme willingness promptly to obey
the direction ol CMigrsH, if by an explanatory
act or joint reeolntioB they shonld reqtilra the
payment of the balance. Is raitarated in the r«-
turo to the mandamus. It la true that he haa
not deferred to the report of a committee of
the Senate, nor even to a resolution of that ra-
apeetable body, aa to a valid and mandatory
law. Weaker, and perhaps wiser men, would
probably have yielded to an authority ao impos-
ing; but, whatever may be thought of the
prudence of his conduct. Us firmness of pur-
pose should command our respect, and with
unprejudiced miuds, will go far to evince the
justice of his intention*. In calmer times, it
may also lie seen that in insisting on the con-
of both branches of the Legislature,
and especially of the HouM of Representatives,
as necessary to give to a resolution touching
the public treasure the force of the lew, he was
really upholding a very Important part of the
Constitution.
Other inatances might be mentioned of the
like, and even greater "injustice done [*ftSe
by the other side to the plaintiff in error. All
fair construction of his motives had been de-
nied; he had baon stigmatised as the relentless
persecutor of unoffending and meritorious cit-
izens; the death (not appearing on the record)
of one of the relators bad even been imputed
to himi and to all this had been added the still
^var charge of a desire to break down the
judiciary establishmenta — to destroy the safe-
guards provided b^ the Constitution, and to
subject the legislative will to the control of the
executive. In the argument Just concluded,
all the powera of a very brilliant vituperative
eloquence had been put in requisition to bring
down upon hia heaa the Indignation and ab-
horrence which, in a land of liberty and laws,
are justly felt towards a functionary truly
chargeable with delinquencies so enormous.
That no part of this accusatory matter was
really called for by the case is obvious; that
much of it wants even a shadow of suppM-t
has already been shown; that any of it would
be pressed upon this court, was not to have
been expected. This hall had been regarded
as holy ground; and the consoling reflection
had been cherished that within these walls one
spot bad been preserved where questions of
constitutional law could be discussed with
calmness of mind and liberality of temper;
where the acts of a public servant might be
subjected to free and rigoroua scrutiny, with-
out any unnecessary assault upon his charac-
ter; where, though his conduct were proved t-^
be erroneous, purity of motive might be con
ceded till the contrary appeared; where it was
usually deemed repugnant to good taste to
offer as argument the outpourings of excited
feeling, or the creations of an inflamed imag-
ination, and where vehement invective and
passionate appeals, even though facts existed
which in some other forum might justify
their use, were regarded as sounds unmeet
for the judicial ear. That an example ao
different from the course which might have
been hoped for; an example »o novel and un-
propitious, should have been set on the pres-
ent occasion, was not less a subject of regret
to him than he waa sure it would be to all who
reverenced the dignity of this court, and who
wished to perpetuate its usefulnesa and honor;
and be eonflAently trusted that the learned
iao6
SU Soruui Coun or t
Mnniel thunBeWw, whm tlie efferveaeence of
profcsHioDBl teal and exciting delwte had paaaed
awaj, would pftrticipnte in thii feeling.
In repljing to tliose parts of lbs opposing
•rgument wliicli belonged to the queatiana
presented bj the record, the Attorney -Genenl
■aid he would pursue and order somewhat diC'
SBI*] fereut from that 'adopted by the other
aide. He would first look at the parties be-
fore the court, and second, at the particular
■irad to be accomplished by it. Uader tbese
two mneral heada, all the material points in-
sisted on for the defendants in error would be
brought under review; and the conclusion, he
trusted, would be, that the court below had no
Jnrisdiction to award the writ.
1. The court below had itot Jurisdiction of
The idea of the court below, and which haa
also been insisted on here, that the United
States are to be regarded as the plaintiffs be-
cause the ancient form of the writ has been used,
is palpably untenable. The real plaintiffs are
the relators, who are residents of Maryland and
Pennsylvania. The defendant was proceeded
against in his official capacity as Postmaster-
General, for the purpose of compelling him to do
an act exclusively official. The Postmaster-
Qeneral, as a public officer, is required to be a
resident of the District of Columbia, and may
be found within it; but he is not so resident or
found, within the meaning of the fifth section
of the Act of 27th of February, 1801. Tbe
words "between parties, both or either of
which shall be resident, or shall be found with-
in the district," must be understood to mean,
not parties universally, but ell partlsa capable
of suing or being sued, who may be resi-
dent or found, etc. Foreign ministers,
who are residents in tbe district, being in-
capable of being sued In the courts of the dis-
tnct, are clearly not within the word* of the
section. The Postmaster- General, or other
head of a department, is equally incapable of
being sued in his official character, because
there is no act of Congress conferring such a
capacity. Such an act is necessary to enable
the Poatmaster -General to sue in his official
character. Oabom v. The Bank of the United
States, B Wheat. 826, 86B, 866. A fortiori, is
it necessary to make bim suable.
Again: The United States are tfaa real par-
ties defendants; the object of the suit being
ta cancel balancea in the treasury books, and
to reach public moneys in the treasury. It
cannot be said here, as in Cohens v. The State
of Virginia, 6 Wheat- 407, 408, that the ob-
ject la to get rid of a judgment recovered by
tbe United States. The original object of the
froceeding was to charge tbe United States,
t is therefore. In effect, a suit against them.
Such a suit, independently of the general ob-
jection that the government is not suable ex-
cept when it chooses to waive its immunity )n
this respect, could not be brought in the court
5BS*] below for an additional reason. *The
fifth BPction of the Act of the 29th of Febrtisry,
1801, gives the court jurisdiction of all actions
or suits o( a civil nature, "in which the United
Mtates shall be plaintiffs or complainants."
'I'hia axprsas, affirmatir* provisicm, necessarilf
I UntiB Btuna. um
excludes all cogniEanes of aetiona agb^vst tka
United States, even if they were othuviM m-
pable of being sued.
It is no auHwer to the objections iri^er tUi
head that they were waived by the ay pemrasM
of the plaintiff in error in the court below.
That appearanoe was for the s^o [nirpoae a(
objecting to the jurisdiction; SBil *m no idea
in abatement could be interposed, 'Ae waac of
jurisdiction was aaaigned in the return.
2. The court below had not iuiisdictioa ml
the subject matter of the proceeding.
The application was for a poremptorj man-
damus to the Postmaster -General in hia official
capacity. This officer, it is now admitted, ia
the head of one of tbe great executive dvpart-
roenta. The court below has iro jurisd^tian
to award such a writ to such an officer. This
court haa decided that tbe oritinary dmlt
courts bave no such jurisdiction; not, indeed, in
express words, but by decisions which em-
brace that proposition, and much mere, ma-
tire V. Wood, 7 Cranch, 604, and M'OnBy
v. Silliman, 6 Wheat. 666, decide diat the
ordinary circuit courts cannot iaaue a mnn-
damuB, aa original process, even to a mere min-
isterial officer; much less can thij do ao to aa
executive officer, the President, or the hend of
a department.
The Circuit Court of the Di^.trict of Colom-
bia, though it possesses iruch juriadicticn
which the other courts hsve E>>t, stands in this
respect On the same ground. The words of
the fifth section of the Act nf February S7tli.
1801, so far as regards this ijuestton, are anb-
atantially the same aa thue of the eleveDth
section of the Judiciary .'ict of September,
1789, except that the latter includes the wmds
"concurrent with the cou^ ts of the seveial
States;" which words are not in the Act ci
1801. These words, it is said, restrict the jn-
risdiction of the ordinar, circuit courta to
those CBsea over which the Rtate courts had jo-
iadiction in September, ITSO, and thereby ex-
clude casPB arising under the Constitution,
and trpsties of the United States. And
as the restriction is not contsincd in the Dis-
Aet of 1801, the argument is that the jo
risdiction of the Circuit Court of this distrirl
extends to all such esses, provided the parties
be resident or found within the district. Sev-
eral of the objections to this doctrine, made ia
the opening, have not been answered by ths
'other side; and it is therefore the less [*SSt
needful to pursue it. Tbe reason for insertii(t
this clauae in the Act of IT8I>. was to pr«vest
the doubt which might otherwise have arisf*
as to the right of the Fitate courts to dedde,
in suitsblc cssps, questions growing out of tht
Constitution, treaties, and laws of the United
States. It was not inserted either to give jn-
risdiction to the State courts or to reatrict the
jurisdiction of the circuit courts, but nimpty ta
exclude a conclusion. Houston v. Uoore, f
Wheat. 2G to 27- For that puipoee. the elaaw
was very proper in the Act of 1789; but far
any purpose, it would have been abeurd in tk
Act of 1801, for there are no Stnte courts ia
this districtj and this, no doubt, waa the —k
cause of the omisaion.
In support of this view, it is further sais
that the su^ect matter of the two laws ia a-
tiallj different; the Act of 1789 being dt-
F«ten Ifc
ISM
KsHDAU. T. The Uhitd Staxm.
dfned to OTKintEs the eourt* of tbe United
Slatea under the ConBtitution alonp, and th«
Act of 1801 to furnish such additional juris-
diction to the district courts as was requirpd by
the local sovereignty exercised over the dis-
trict. This change of circumstance* undoubt-
edly demanded a much wider scope of judicial
power; but this was abundantly provided for
[>j adopting the laws of the States (sec. 1); by
oztendmg the criminal jurisdiction of the Cir-
cuit Court to all crimes and offenses committed
within the district, and by enlarging the civil
Jiuisdiction to all cases, in law and equity, be-
tween parties resilient or found within tbe dis-
trict, instead of confining, as is done in sec.
11 of tbe Act of 1789, the criminal Jurisdiction
to offeoses a^ininst the laws of the United
States, and the civil to certain suits between cit'
ieena ot different States and other special casu.
Tbe change of sovereignty did not require
that the court* of this district should possess a
Giwer denied to all tbe other courts of tbe
oited States, to superintend and control
United States officers appointed for the whole
nation; nor can it be believed that Congress
could realty have intended to confer such a
power. It is said, however, that they have
actually given it by continuing in force the
laws of Maryland; because, by tboBc laws, s
mandBmuB would lie to a public officer, oom'
manding tbe performance of a ministerial duty,
ma well as in the cases of corporations, etc. Nc
doubt, bv virtue of tbe adopted laws of Mary-
land and Virginia, and under its general juriS'
diction, the Circuit Court of the district may
rightfully issue the writ of mandamus In all
eases of the same nature with those in which it
could have been issued by tne Maryland and
BtO*] Virginia courts, to any "officer, tribu-
nal, or corporation within the district. In
other words, for the purposes of this question
the Maryland side of the district is tbe State of
Maryland, and the Circuit Court of the district
now holds the supervisory power of the Mary-
land court over all local officers, in respect to all
matters arising in the district, which, from
their nature and (quality, would have been sub-
ject to the supervision of tbe Maryland courts,
had the session not been made. But the mere
act of adopting the Maryland laws, and of
abling tbe district courts to administer them as
they were administered by tbe Maryland courts,
could not enable the former to apply those laws
to officers of the United States appointed for
the whole nation. In respect to official acts af-
fecting the interests of the whole nation. To
authorise such a stretch of power, there must
be an expr^^s grant of jurisdiction by act of
Congress. Until tvcb a law shall be passed,
tbe local courts, in this particular, will stand on
precisely the same ground as the Maryland
courts did before the cession. When Congress
aat in New Tork or Philadelphia, and the offi-
cer* of the federal government resided there,
thay were not subject to the supervision, by
mandamus, of the courts of either of tbe States
within whosp territory tliey resided. Suppose,
then, a cession of the city of New York, or of
tha city of Philadelphia, and an adoption of
the State law; how could that have altered
tba easel Aa to all matiera of local concern,
like all other inhabitants, they would be sub-
ieet (o the adopted law; Init la their offidal oa-
paeities, they would sttD have remained, as
they were before, exclusively subject to the au-
thority of tbe general government, acting strict-
ly as such. Suppose this district had never
been ceded to the United States, but the seat
of the federal government established here, and
all the other rircumstauceB of the present casa
to have occurred, could tbe Maryland eourt
have interfered by mandamus T Surely not.
Uow, then, can that court, which baa merely
taken tbe place of the Maryland court, claim,
from that fact alone, any greater jurisdictioat
Tbe case of The Columbian Insurance Company
V. Wheelwright, 7 Wheat. 534, so much reli^
on by the other side, does not touch the point.
That was a private corporation, not growing
ont of, nor at all connected with the faderJ
government, as such. It had, indeed, been cre-
ated by an act of Congresa; but in this Con-
gress acted as a local legislature under the ces-
sion; witliout which such a corporation could
not have been created by the faileral govern-
ment. If the cession had not been made, the
Maryland Legislature could have done precise-
ly the same thing. But *iQ creating ["501
the Postoffice Departments, and the other exec-
utive departments, and in defining the dutica
of the olhcen employed in them, as well as in
every other law concerning them, Coiigress act
entirely irrespective of the cession. Though the
oSicers reside here, yet had no cession
been made, every one of these laws might
have been passed. On the other hand, if the
district were yet subject to the government of
Maryland, that government could not have in-
terfered with the subjects, or with any of tha
officers concerned in them.
It ia very true, as contended by the learned
counsel, that the Maryland laws cannot be lit-
erally enforced here; that all the local officers
of the district derive their existence from acta
of Congresa; and that the Maryland law can
only be applied to tbem by analogy: but there
o difficulty in sacertaining the analogy, nor
pplying it. Informations in the nature of
_ JO warranto may be entertained, and writs
of mandamus be issued, by virtue of the
adopted law, in every cuae, except where the
duties of the officer exclusively grow out of,
and belong to the federal government. The
present case being peculiarly one of this
description, the court below acquired no juris-
diction over it from the mere adoption of tbe
Stat* taw. If it has such jurisdiction, it must
be derived in some other way.
The third section ot the Act of February
27tb, 1801, cannot help out the jurisdiction,
en if that part of the Act of February ISth,
which it is said to refer, be regarded as yet
force; because this section refers only to the
powers, and not to the jurisdiction at the court.
The distinction between jurisdiction or cogni-
sance of a court, and the powers or means by
which It exercises and enforces its juris'liction,
is a sound and familiar one, and il distinctly
marked in all the Judiciary Acts; and among
others, in this very Act of the 27th of Febru-
ary, 1801, as the court t>elow has itself decided
former cases. Again: there Ix-iug no special
Terence to the Act of February 13th, the pro-
lions of that law were not so Incorporated in
tbe Act of February 27th aa to require a special
repeal in refereae* to this distriot; and when
HOT
Suntu CooBT or the UnnD Biaxem.
I, and put In force in ita
■lead, with what propriety can it be uid that
•ny part of the repealed lavf U yet in force!
And now unreasonible to auppoie that Congreaa
eould have intended to leave the repeat imr"
feet, and to create and keep up an anonial
and unnecessary distinction betneen the court*
}n and out of this district t The eaaei men-
S99*] tinned by the learned 'connsel of Eng-
llah statutes specially referred to and adopt^
^ Mar viand ststutcs, and in respect to
which toe Mairland courts have correct] v
held that the subsequent repeal of the English
•tatute does not alter the law of Maryland;
differ from the preneut case in several essential
partievlars. Not to speak of other diO'erences,
the reneal was not made by a legislative act in-
tended to apply, or capable of applying to the
State of Maryland; whilst here, the Aet of
February I3th, if adopted in the Act of Feb-
ruary 2Tth, was also repealed by the tame au-
thority.
The jurisdiction of the court beiow, so far as
regards the present case, depends, then, on the
words of the fifth section of the Aet of Febru-
ary 2Tth, 1801. These words are, in substance,
neither more nor leas than the corresponding
words In section eleventh of the Act of 1789;
and even if the judicial construction of that
section, In M'Tntire v. Wood, and M'Cluny v.
Stiliman, be inapplicable to the present law;
still it has not been shown that the claim of the
relators is a "case In law or equity." If
give to the law the broad construction
which the learned counsel Insist, they cannot
establish the Jurisdiction of the Odnrt, unless
they can a!so prove tbat the eaae presented in
the petition was a "case in law or equity;" in
other words, a controversy of a forensic ni
ture, which, according to the eetablished prii
ciples and forms of judicial proceedings, we
properly referable for diacusaioR and decision to
the judicial tribunals. The Attorney- General
ferred to the aripimcnt of his associate on '
point; which, be remarked, had not been
swered, nor even attempted to be answered,
cept by the allegation so often reiterated, but
not proved, that the relators had an absolute,
fixed, and unconditional lefial right to the cred'
Its In question, the duty of entering which was
Imposed on the Postmsster-General as a mere
ministerial act. If this were indeed so, then a
"ease In law or equity" had been presented,
Uid the mandamus will be the proper remedy,
if there be no other appropriate means of re-
dress, and the court has received authority to
Issue It. But the position is untenable.
The relators claim under the special Aet of
July 2d, 1836. They do not refer to, nor could
they claim under any prior aet. The Attorney-
General agreed that the relators were deeply in-
terested in the benefits proposed to be conferred
by thia law, and also that the good faith of the
nation was pledged to secure to them all those
benefits unless It should be foimd that by some
fraud, or material error, Congress were induced
to grant what they would not otherwise
6S3*] 'have given. But it Is not every inter-
est, nor even every Interest which is guarantied
by the faith of the nation, which la to be digni-
<l«d by the name of a vested legal right. If
the Intarsat ba subjeot to aoj wntingeacy tty
IBOB
which the H^t to Its enjoyment ean be eut i4
it is not regarded in law as a vested le^ ligit
Now the rights conferred by the Act of Jnlj
2d, 183fl, were subject to such a contingency.
Tliey were subject to the power of CongreM,
at any time, before the actual entering of tb
credit, to amend, alter, or repeal tbe iiv.
After the credit should be entered. Congress
could not deprive the parties of it, because
there is no power, which after a fact has hap-
pened, can cause such a fact not to have hap-
pened. But at any time prior to the actual en-
tering of the credit. Congress had the power ta
alter or repeal the law. This power was not
reserved in terms in the law, nor waa it aeccs-
sary to be so reserved. It results from the na-
ture of the case. There was no contract made
or tendered b^ the law. The relators were to
do no meritonoua act under it. It was an act
of relief, of grace, and favor to them. The
proceedings before the solicitor were not like a
suit in a regularly organised court; aor vss
bis award like a judgment of such a court, so
as to be out of the reach of the legislative pow-
er. It was the ordinary case of a law eztendins
a favor or bounty to a party ; and aa to all such
laws. Congress have a locus penitentse, ao Ion*
as the taw is unexecuted. The judiciary con-
mittee of the Senate had no doubt as to Ibe
power of Congress to repeal the law, ttraujih
tbey thought it should not be exercised. Tins
is decisive of the case. If Congress had, and if
they yet have, the power to modify or repeal at
pteaaure the act under which the relators claim,
then it is not a case for the courts of justice it
all, or, at least, not ■ csise for a mandamus.
All the authorities show, and the leairned coui-
sel themselves admit, that to entitle a party t«
this writ be must show that be has an ahoolete
legal right to some specific thing. But where
the intereat of a party is liable to be thus af-
fected by the action of the LegiBlature, it is so
abuse of terms to call it a flx^ or vested rif^it-
It would, indeed, bt a strange kind of alsolute
vested legal right, which Is thus liable to be de-
feated. That the Legiilature have not inter-
fered is no answer to this argument; it is
enough that they have a lawful power to do so.
Nor was the duty imposed on the Postmaster-
Genera! by the law of 1836 a mere ministerial
duty, like that of the clerk of a court in record-
ing a judgment, giring copies, etc, to which it
has been 'compared. It involved an [*5t1
examination of the sward, to see tbat the so-
licitor had not exceeded his authority, either ia
ig too wide a scope to the enacting clause,
1 violating the proviaoa. Nothing can ha
plainer than that if either were done, the asard,
pro tanto, would l>e void; precioely like that ef
any other arliitrator, whose award exceeds
the submission. Suppose the solicitor had
made allowancea where there was no contract.
Or for other contracts than those deaciibed ia
tlie taw. Or had made allowances contrary to
the provisos. Wili anyone contend that the Post-
Qeneral, seeing these violations of the
the face of the award, was yet boosd
to give the credit* thus ille^lly allowed!
duty was merely ministerial, if he |m ~
authority to look into the award, .
tended by tAS other side; then, bowsvcr t*^'
bte the errors of the solicitor, and however ei
OMsive tba •llowanee* made by faim, the o«dit
P«Mn IX-
hENUALL V. I'ua Ukitkd Btaiei
ia to De given. It would seem to be Impouibte
that •uch could b»ve been the design of Oon-
greM. It ma clekrly the duty of too tolieitor
fo eonSue faia alloiranceB within the authoricy
conferred on him b; the law; and if eo, it was
«B clearly incumbeot on aome one, befora the
eredit waa given, and the money drawn out of
the treasury, to see that the allowanoea did not
extend beyond the law. Who woa to do thial
Id the first inatuoce, at least, the Foatmaster-
General J becaiiae on him waa specially de-
volved the duty of executing the award. Ex
necessitate, therefore, he must look into it, and
compare it with the law. Even tha other aide
were eowprlled to admit thia; they concede,
too, that some preliminary examination waa
necessary to enable him to ascertain the pre-
cise duty to be performed. This conceaaion
bring* the case within the principle of The
Commonwealth, ex rel. Qriflith, v. Coehnui, 5
Binney, H7, cited in the opening. According
to that caae and the whole current of authori-
tiea, where auch a special tribunal ia created
by atatute, without (pving to the courts, tn ox-
press terms, any power to supervise and con-
trol the action of the officeri all that they can
do by mandamus is to compel the officer to take
up the subject, and to act upon it; tbey cannot
Inatnict him how to act. If the officer acts
corruptly, he Is liable to a private action at the
s.iit of the party injured, and to indictment if
he decides erroneously, the only remedy, in
ordinary casct, is by a further appeal to the
Iiegistature; though under the Constitution of
the United States, if the duty be devolved on
an executive officer, his action may indirectly
be reached and affected by the President.
\»&'] *It is in this view of the caae that the
t onstitutional question as to the power of Con-
gress to clothe the Judiciary with authority to
direct and control the executive, ia supposed to
•rise. The doctrines of his associate and him-
self, on this head, and more especially those
atatcd by the Postmaster -General in his return,
had been denounced by the other side aa equal-
Ij novel, unfounded, and alarming. Strong,
and, perhapa, incautious expressions, bad been
quoted from that return; and by separating
them from their context, and not attending to
the faet that the writer set out with the posi-
tion that the duty imposed on him by the law
was an executive and not a ministerial duty,
thene expressions were made to bear a meaning
which their author could never have designed.
Tbe like remark Is to be made of the com-
ments on the opinion of the Attorney -General,
and on the opening argument.
In regard to this branch of the caae, the At-
torney-General aaid that he could not consent
to be held responsible for any language or rea-
soning except hia own; and that he must pro-
test against the version which had been given
to hii official opinion. That document, on
■ome of the points discussed In it, might well
be found to be erroneous; for it embraced
questions by no means of easy solution, and in
lespect to which the most eniightenMl and up-
rlf^t might fairly differ. But as to the con-
stitutional views presented by It, he could not
apprehend any serioua diversity of opinion
among persona tolerably familiar with consti-
tutional law; provided the pointa intended to
be diacnsaed were Qrat elearly undaratood, and
» lb ed.
then car«rulljr k(pt In vte*. ttt had not d>-
nied, and did not intend to deny; on the coa-
i-rary, he fully admitted the constitutional pow-
er of Congress to invest the proper courts at
the United States with Jurisdiction to iaauH
write of mandamus to any ministerial officer rtf
Lbe United States, to compel the perfonuaneil
of hia duty. And aa the ordinary character at
an officer** functions would not alvay* de-
termine the true nature of a particular duty
Impoaed by law, he further agreed, that if an
executive officer, the bead of a department, or
even toe President himself, were required by
law to perform ui act merely ministerial, and
necessary to the completion or enjoyment of
the rights of individuals, he should be regarded,
quoad hoc, not as an executive, but aa a merely
ministerial officer, and therefore liable to be
directed and compelled to the performance of
the act, by mandamus, if Congress saw Bt h.
give the jurisdiction. In short, be had no eOB-
troversy with the court below, nor with the
learned counsel 'for the relators. In [•*••
respect to the power of Congress to authoriM
the Circuit Court of this district, or any other
tribunal, inferior to tbe Supreme Court, to
award a mandamus to the Postmaster-General,
in precisely such a case as that now under dls*
cussion; if it be reallv true as contended by tbe
court below and by tne other side, that the law
of July, 1S30, impose* on the Postmaster-
General the performance of a merely ministeri-
al act or duty. The official opinion of June
Iflth, 183T, begins with the sUtement that the
case was one In which an official duty relating
to claim* depending bi the Poatoffice Depart-
ment, growing out of contracts made with that
department, Imposed on its head by his nams
of office; and In every sense an official, execu-
tive duty, was Bought to be enforced by man-
damua. This statement, he thought, had not
been suocessfully Impeached; and if well
founded, it naturally led to the constitutional
objection, by which It waa merely affirmed
that Congress cannot "confer on any court of
the United States the power to supervise and
control the action of an executive officer of
the United States, in any official matter, prop-
erty appertaining to the executive depart-
ment in which he ia employed." The re-
mainder of tbe opinion Is devoted to the eatab-
tiahment and illiiatration of this precise and
limited proposition. The argument was chief-
ly rested on the distribution of the powers of
government between three independent depart-
ments; the vesting of the executive power in
the President, and the duty Imposed on him
of taking care that the laws be faithfully exe-
cuted. How haa tfai* argument been met by
the other sidaT By imputing to ua tbe most
extravagant doctrines In reganl to the extent of
the executive power, and by maintaining, on
their own part, doctrines equally extravagant.
When we aay that the Constitution gives to
the President the whole executive power, the
learned counsel represent us as contending that
all executive power, whether conferred by the
Constitution or not; all executive power which,
in any age of the world, and uncier any form
of government, has I>een vested in the chief ex-
ecutive functionary, i* vested in the President
of the United States; and they argue wltta
Kreat warmth Bgainat this notion, a notion too
SUPUUB COUK OF TUB UHITXD STATES.
ISM
prepoBteroua to need refuUtion. What we
■ay is, that all the executive power of the lim-
ited federal government created by our Con-
atitiilion — not the executive power of Great
Britain, Russia, or Turkej— is vested, with
certain specified exceptions, in the President.
And we mean by this precisely what is meant
5»T*} when it is *said that all the legisUtfva
power of this government is vested in uoneress,
subject to the qualified veto of the I^esident,
or when it is said that all the judicial power
conferred by the Constitution is vested in this
court and the other courts of the United States,
The proposition, even as thus limited, Is de-
nounced by the other side as slavish in the
extreme, although they admit that it is not
entirely new. It was flrst broached, say the
counsel, by Gen. Hamilton in the Letters of
FaciflcuB, but was promptly refuted by Mr.
Madison in Helvidius, snd has since remained
dormnnt. Never did gentlemen fall into a
greater mistake. That all the executive power
propaaed to exist in the new government was to
be vested in the President, was objected by the
opponents, end expliritly admitted by the ad-
vocates of the federal Constitution, when that
instrument was under discussion before the
people. Gen. Hamilton, in The Federalist, ac-
knowledged that this was the elTect and design
of the Constitution, but vindicated tbe arrange-
ment. See The Federalist, Nob. 6B, TO and
71. This doctrine was also announced and
eatablisbed by the Congress of 1789, in the de-
bates relative to tbe power of removal, referred
to in tbe opening. It was the very pivot on
which that famous discussion turned. The
subject had been considerably discnased before
Mr- Madison engaged in the debate. From the
moment he entered it, we perceive the presence
of a superior intellect, possessing unequalled
advantages of knowledge and experience, and
displaying itself in the clearest analysis of the
principles and meaning of the Constitution.
He was the first speaker who referred to that
clause which declares that the "executive pow-
er shall be vested in the President." From that
provision, and from the direction that the Pres-
ident "shall take care that the laws be faith-
fully executed," he deduced the conclusion that
it was "evidently the intention of the Con-
stitution that the first magistrate should be re-
sponsible for the executive department." 4
Elliot'i Debates, 14S. He showed that this
principle of unity and responsibility was nec-
essary to preserve that equilibrium which the
Constitution intended, ana to prevent a direc-
tion towards aristooracy on tbe one side or
anarchy on the other (4 EJIliot, 17S); and that
to give effect to these principles, the capacity
to superintend and control the subordinate offi-
cers of the executive department through the
Swer of removal, bad been left in tbe Presi-
nt alona. 4 Elliot, 147 to 160, 176 to 183.
and 801 to 803. In these views a large ma-
SffS*] jority of both Houses concurred; 'the
Senate conceding the power against itself: so
that, if this doctrine as to the power of removal
W teally an unwarrantable Interpolation, as the
teamed counsel say It is, It must be charged on
tbe fathers of the republic. But, whether the
particular question as to the power of removal
wu correctly decided or not, no one Id that de-
isio
bate disputed tbe position of Mr- Madison aad
his associates, that the Constitution had actn
ally vested in the President the whole cik-
utive power. On the contrary, Mr. Gerry and
others, of tbe minority, expressly conceded it;
though they contended, either that the execu-
tive power did not include the power of le-
moval, or If It did Include it, that in analogy ta
the power of appointment, it could only be ax-
ercised with the consent of the Sen&te. TUa
latter Idea had indeed been snggeeted by Gea-
Harailton In the 77th No. of The Pederalist;
though, as has been seen, he had previously laid
It down, in prior numbera of that work, and
in the strongest terms, that the whole execu-
tive power was vested in the President. T^
whole course of this debate, independently irf
the conclusion to which it came, is, therefore,
utterly irreconcilable with the recent sugges-
tion adopted and maintained by our l««med
adversaries — that, when the Constitution says
"the executive power shall be vested in a Prn-
ident," it only gives a name to the department,
and merely means that he shall possess sndi
executive power as the Legislature shall choose
to confer upon him.
The doctrine stated in Paclflcus, published
in 1793, was, therefore, nothing new. It wu
merely repeating what Oen. Hamilton had iim-
self said before the adoption of tbe Constitu-
tion, and what had been admitted on all sides
in the debate of 1780. Nor was it denied by
Mr. Madison, In the letters of Helvidius; nn,
indeed, could he venture to dispute it after the
part taken by him in former discuaaions. He
several times admits it in terms, and conatantly
by implication; but contends, in oppoaitior '-
of making war and peace, and therefore be-
longed to the Legislature, and not to tlie ex-
ecutive. See pages GM to 601, Appendix to
Washington ed. of The Federalist. This view
of the Constitution, so far, also, from remain-
ing dormant since I7B3, aa alleged by tbe
learned counsel, has been announced in ever;
text-book on the Constitution published since
that time, and in every deriKion of this court ■■
which the point has been discussed, aa wu
abundantly shown in the openinj;.
*We are able, also, to answer the call ['Bf*
so loudiy made for some decision of the Stalt
courts, in which it has been held that similar
words in a State constitution vest in a govenn
the executive power. The precise P<><ot was
adjudged in The Commonwealth v. Buaser, I
Serg. A, R. 451, on the constitution of Pean-
sylvania.
In regard to the President's responsibihtT
for the officers of tbe executive department, and
his power to supervise and control them, «e
intend to assert only what was admitted in The
Federalist and maintained by Mr. Madixn.
and those who concurred with him in the de-
bates of 1789; and nothing more than has bea
understood by every President, from W»»k-
ington inclusive, to belong to the high lT«t
with which he is clothed. In the writings d
Washington, recently published, his hatst d
directing all the heads of departments is tiM
discharge of their duties constantly sppnn-
Nor does the idea, suggested by the conrt ke-
low and befon advanced by others, that tW
Feten H-
1«3S
Kendall *. The Umted StATta.
S««r«tar7 of the Treasury was not subject to
this direction to bo great an extent u the other
heads of dcpartroents, derive «ny countenance
from this correspondence. On the contrary, it
irill be seen that on one occasion Gen. Hamil-
tiOa complained th»t President Waehingtnn did
not take so large a share of the responsibiTity
of some fiscal arrangements as the secretary
thoupht he ought to bior. Sparks' Writing',
of Washington, vol. 10, p. SOS, 554. Wiipn,
therefore, the learned counsel afllrm that tlie
principle is now for the first time broadly as.
■erted, they apeak, to say the least, with very
little historic accuracy. And when they rep-
resent us as pressing it to the extent of claim-
ing for the President a power to direct, instruct,
BJid control every odiier appointed by him,
judges aa well as others, tliey show a great want
department; we speak of that alone; and we
miKrm, equally with the other side, the ab-
solute independence of the judiciary, when pro-
ceeding in its appropriate sphere.
The practical inferences supposed by the
other side to result from this doctrine we must
Klao repudiate. Where the President ho* con
trolled and directed the action of the inferior
executive olHccr, they contend that tlie inferior
Is not responsible; and, as the President's liabil-
tty to private action has been doubted, there
wilt, then, it la said, be no responsibility. The
■Jiswer ia, that whenever the President takes
mo active part in an itlrgal action, to the injury
of an individual, though it be done by the hand
«O0'] of liis subordinate, he 'will be respon-
sible in a civil suit, along with that aubordinate,
and that the latter canuiit be excused for doing
an unlawful act, by picailing the command of
his official superior. This is the rule of the
common taw, in the analogous case of master
and servant. 1 Black. Com. 430. The sub.
ordinate ofTicer la not obliged to do any act
irhich hs belieies to be unlawful; if the Presi-
dent insists on it, he may resign, or refuse and
take the chance of a removal.
Nor do we claim for the President any power
to forbid or dispense with the execution of an
act of Congresa, even though it relate to mat.
tera purely executive; nor have we ever affirmed
that a citizen, interested in the execution of
euch an act, is obliged to submit his claims to
the aj-bitrary determination of that functionary.
ft was with great jiropriety that the learned
counsel, when bringing this charge against his
associate and himself, had referred to the ma-
licious and unsupported accii.sation made by a
tory House of Commons against one of the best
patriots and soundest constitutional lawyers
England ever produced. Lord Somers. What we
nay io, that where Congress pass a law for the
guidance and government of the executive, '
inceming the executive r
I to the President to take
matters properly concerning the executive do-
tment, it beSonga to the President to take
B that this law M faithfully executed; and
s apply to sucb a case the remark of Gi
Hamilton in Pactflcus, that "he who is to exe-
cute the laws, must first judge for himself of
their meaning." Pacificus, Letter 1st. If,
therefore, the executive be clea-ly satisfied as
to the meaning of *ach a law, it ia his bounden
duty to see that the subordinate oflkers of his
department cDoforiD with fidelity to tliat mean-
motive from which it springs, Is l
cution of the law. In a case of this kind, one
which thus concerns the proper executive busi-
ness of the nation, we do indeed deny the
power of the judiciary to interfere in advance,
and to instruct the executive ofilcer how to act
for the benefit of an individual who may have
an interest in the subject; but we bold that
every officer, from the lowest to the highest,
who, in executing such a law, violates the legal
rights of any individual, is liable to private
action; and, it this act proceed from corrupt
motives, to impeachment, and. In some cases,
to indictment also. And we also agree, oa has
already been admitted, that when an act of
Congress imposes on an ofTicer of the executive
department, for the benefit of a private party,
d duty purely ministerial, the performance of
that duty may be coerced by mandamna, by
any court to which the necessary jurisdiction
shall have been given,
'Another of tne practical Inference* [*fl01
Imputed to his associate and himself, related to
the cspncity of the judiciary department to ex-
ecute Its judgments. A strong and somewhat
unguarded expression in the return of the
plaintiff in error, had been made the theme of
much animadversion; the comments which It
was supposed to justify were extended to the
ofHcisI opinion of the Attorney ■ General ; and
Lbia latter document, it woa said, pressed the
argument to an extent which would deprive
the courts of the power to issue any process, or
exercise any jurisdiction whatsoever. As sug-
gested in a former part of the argument, the
language of the Postmaster- General had re-
ceived an interpretation which was doubtless
repugnant to the meaning of its author: but
however this might be, the Attorney -General,
speaking for himself, ciinld t -uly say that the
sentiments imputed to him were never designed
to be expressed; and on a fair construction of
bis langua^, be did not think they could be
found in his official opinion. Having adapted
the Impression, whether correctly or not it waa
not for him to say, that the duty assigned to
the Postmaster-General by the special Act of
July, IS36, was not a mere ministerial duty,
but a duty which appertained to the regular
official business of the dej)artment aa a branch
of the executive, the opinion proceeded to show
that the writ of mandamus could not be Issued
to the head of an executive department, to in-
struct and direct him in the performance of ■■
official executive duty. Among other argu-
ments, the inability of the judiciary to enforce
any commands they might address to the exec-
utive otTicerB, was insisted on, and llluetrated
by the supposed case of the officer refuaing to
obey the mandamus; and on his being commit-
ted to prison for the contempt, the tVesidenfi
removing him from otilce, and so defeating, ad
infinitum, if he pleased, the execution of the
writ; thus showing that without the consent
of the executive a peremptory mandamna to
an executive officer must forever remain
inoperative. If this argument be confined,
aa was intended, to the case of a mandamus
commanding the performance of an act etrictlr^*
executive, no one. It is believed, can prove ft
to be unsound. To mark atill more clearly tba
dat« of CMM nfvn^ to, and to show that tht
W fitrwatt CMnt u
independMM luid e«in(rfef«len of tba JoAieM
C'T werii dot intended t« Im tmvogaeS, It
eafefull* tftMetred that In cMel wMcb
r>perlf refer ilK(n8eJ>«* to th« iuiiei^Tj,
ii nrel> or nevtr |KMliU« to dcfcxt, Iti thia
#aj, tUe ultlmftte execution at tlfe ^dgment
«t the ctlurt:" ■ miuge, ti;^ the lm.J, ttbicb
toa*] lilt Itftftted 'counwl In tbelr anlmateil
Mmmtnft on tlllB tfcrt «f tb« aptnlon loul
itnmsrij overlooked. He, tlfetefore, entirely
•greed with hi« learaed adTeriarles, t^ Itt all
MBe* to frhicb the Judicial poweT Utended,
•either the executive nor the legieUture
eaa in the handa of the marabal. _..,
perhapR, to prevent an^ abuie of the pmtet of
removal by tbe executlre, aa well aa to avoiil hf-
eonvenlence and delaf, that the provision re-
famd to bj> the other side and by the court be'
low, authoritlng the manhal, though removed,
Ut execute any pracees la hla handi waa In-
Mfted In the Act of 17BB. ThIe proviilon, bow-
aver, doe* not applf to a mandamui; which ia
directed, not to the marahal, but to the officer
who la to do the act required; and If that ofS-
«r be the head of an eseeative department,
there la, and there can be, oo law to {n-eveat the
President from removing him at pleaaure.
With this notice of some of the atrletnreB
on hla official opinion, be wae content to leftve
the reneral exposition of hla views on this
brancli of the case to that paper, and would
l>nxetd to conaider the doctrine so atrenuouslj
pressed, that under the Conitltution of the
United States it la competent for Oongreaa, if
thej think proper, to empower the judidarjr to
•upervise, direct and control, any officer of the
•XMutive department, in respect to any matter
whatsoever. The learned counael were driven
to this eztremitj In order to sustain the Judg-
Bant of the court below, in the event of Its be-
ing held that the duty aaafgned to the Poet-
Biaater- General was not a ministerial, but an
executive one. The Conatitution, say the
learned counael, doee not expressly except any
officer of the United States, or any act of any
such olBcer, from the general grant of Judicial
power; and therefore the Legislature may ex-
tend that power to every such officer and act;
and, indeea, ahould do so in order that the judi-
cial powermay.be CO -ex tensive with the operation
of the other departments. The Poatoffice De-
partment, they further say, and all the ofllcerB
employed in it, including Its head, derive their
•zlatcnee from acts of Oongreaa passed in pur-
■uanoe of the Constitution ; and the power
which creates these officers may subject them
to the supervision of the judiciary, and may
empower ths judiciary to direct and control
then. The like power to authorize the Judid-
M7 to direct and control. In advance, the action
of tha executive ofQcers, was endeavored to be
Inferred from the admitted fact that these offl'
Mrs were liable, as individuals, to private action
40S*} and to indictment; and 'that this Ila-
Ulity had often been declared and enforced
by act of Congresa. Thia doi^trine may, in-
deed, be pronounced not only novel, but utter-
ly repugnant to the theory of the Constitution,
and to the beat considered and moat authori-
tative expositions of Its meaning. In the note
to Baybnra'i oua (B Dall. 409), the reasons of
t Uirnni BiAna. UM
Ithe JndgM of the dranlt oonrta, InctediBc all
the judges of this court, for not exeentiw tk
Pension Aet of tbe !3d of Maich, 179^ an-
given at length, Tbe New Tork Qrcuit Oaart,
cotMlstingof Chief Jnatioc Jay, Ciuhi&g, Jnliew
and DnajM, District Judge, were "unanimooa-
ly of opinion and agreed, that by the Gonati-
Ifltkm of the United States, the jjiiii mU
tb«neif la divided Into three dlsUnct and inde-
pendent branches; and that it la the duty of
each la abetafai from, and to oppoae encroaefa-
menta on either. That neither tbe leglaUtive
Aor the executive branebea can conatltirtloaally
asatgB to the Judleisl any duties but aneh aa are
wroperlj' ^dicial, and to be performed In a
Judicial manner." The Judges In the other
circuits expressed tbe same propoeition, thon^
In aomewhat different words; and they all cob-
cVrred in treating tbe law as unconstitutional,
and Itt declaring the funciions assigned them,
because they were not of a Judidal nature.
The axiom thus laid down by thia high autbor-
ity, an axiom plainly resuttine from tbe dis-
tribution of powers made by the Constitution,
overthrowB, from the foundation, all thia part
of tbe opposing argument. The Attoraej-
General said that be had always regarded the
opinions of tbe judges in the pension case aa et»-
titied to the very highest respect. Tbej were
founded on the maturest deliberatloa, and
were uttered very soon after the organlxatiaa
of the government, and before politiol partiea
had bc«i formed with reference to anypartiea-
lar construction of the Constitution. When bda
s as to the independence of the differ-
ent departments were denounced by his learned
adversaries as revolutionary and disorganinng,
he was consoled by the reflection that the Kk»
charge had been insinuated, and even bjr tbe
incumbent of the offiee he had the honor to fifl.
against the opinions above quoted. See letter
of Attorney -General Randolph to President
Washington, of August 5th, 1792, 10 Sparks*
Writings of Washington, C13. Tbe fame of
Chief Justice Jay and hia aasodates had not
lieen injured by these strictures, and those wbo
merely repeat their language are equally aecnre
against any permanent injustice.
As to the numerous cases cited from tbe
English books and from our own rcporta, in
which actions for damages had been brought
'against public officers of all descrip- {'••4
;ions for acta done by them in their official ca-
pacities, It was sufficient to aay that the liabiU-
ty of every officer of this government to pri-
vate action and to public prosecution, in appro-
priate cases, had been repeatedly cononled.
But none of these cases touch the point, now in
dispute, for no one of them involves any at-
tempt on the part of tbe court to direct the
officer in the performance of his duty. Thia,
it is said, has been done In the Injunction eaaea
cited from 4 Simons, 13; S Peters, 470; aad 6
Simons, EM, and other eaaea of the like natmc.
It will be seen, however, that in the llrst «f
these eases (4 Simons, 13), tbe injonctioa wna
issued to restrain tiie eommlasioners of wnods
and forests from erecting a building la vMatioa
of an agreement entered into by them with ths
[ilalntiffe, to whom they had leaaed an adjoin-
ng tract, and that in all the otbera the real eoa-
troversy was between individuals, Htigatlacis
relation to moneys held by the tKaaury oficsn
Pawn !•.
ISU
Kendall v. Thi United 5TA.raa.
U trnsteM or stockholders; moneys received
and«r treaties, etc., uid not belonging to the
government, but to one or other of the litigat-
lag partiea. Injunctions to the treasury offi-
cers are issued by the courtsof equity in these
latter cases, on the same principle on which
they are issued, in analogous cases, to banks
and other depositaries; that Is to preserve the
funds in controversy until the party really en-
titled can Im ascertained. When such in-
junctions are Mrved on the Secretary of the
Treasury, they are usually otiserved, but It has
not been supposed that they were obligatory.
When this case was before the court l>elow,
it was urged as a strong reason against the ap-
Blication that no instance could be found In
le English books in which a mandamus "had
been isoued to any officer of the executive de-
partments." The learned counsel could not
then produce any such case, and the court con-
ceded that they had not found any. The King
T- The Lords Commissioners of the Treasury,
S Neville ft Manning, 58B, a case not in the
country where this controversy began, is now
referred to as one of this description. It was
there admitted on all sides that a mandamus
had never been issued to such officers) and.
though the writ was awarded, all the judges
put it expressly on the ground that the money
in question had been appropriated by Parlia-
ment for tlie use of the relator, and had 1>een
drawn out of the treasury and placed in the
hands of a pa^aeter appointed by the defend-
ants, and subject to their order, and that they
were to be so considered as mere trustees or
stockholders of moneys, belonging, not to the
■ 06*] public, but to the relator. Neville's 'case,
Plowden, 377; the Banker's case, 14 Howell's
State trials, and the other cases of petitions to
the barons of the Exchequer, depend on the
gilltical organizations and functions of the
aglish Exchequer; and the writs issued in
those cases to the treasury officers are not to
be confounded with the prerogative writ of
mandamua, which can only emanate from the
King's Bench. In the New Yorlc ease (10
Wendell, 2S), the mandamus was directed to
tha canal commissioners; officers charged, it is
true, with the care of a very Important public
work, but not a part of the State executive.
In principle, their functions were precisely
like those of surveyors and commimioners of
highways and sewers; ministerial officers, to
whom writs of mandamus havs often been di-
rected In England.
Several of the other cases cited from the State
courts are of the like nature and no one of
them assumes a power to direct an executive
officer in the discharge of a matter properly
appertaining to his official functions. In the
Tenneisee case cited in the opening (1 Cooke,
814), such a power was expressly disclaimed.
And in 6 Btnney, IDS, Chief Justice Tilghman
refused a mandamus to the State treasurer, be-
(tause it would be but another mods of suing
the Commonwealth; thus applying the maxim
of common sense and good morals, that what
tbe law will not allow you to do directly, you
shall not attempt to do Indirectly. But Ibig-
lish cases, and eren cases from our State
courts, however useful in furnishing principles
«nd analogies, cannot determine a question
uising on the CoutitntioK af the United
• Ii. ed.
States. Aware of tUs, the learned counasl
had chiedy relied on the cases of Marbuij v.
Madisoa, I Cranch, 137; Mintyre t. Wood, 7
Crancii, S04; and M'duny v. Sllliman, A
Wheat. 6fi8. In the first of these, it was
said, the broad principle had been established
that in all caaes where an individual was inter-
ested in the discharge of an official act, by an
executive officer, the writ of mandamus was
the appropriate remedy to compel the perform-
ance of such act, and the other cases were re-
ferred to as confirming this doctrine. In re-
gard to these authorities, the Attorney-General
referred to tbe observations in his official
opinion In the record, and to the opening ar-
gument, and conceded that if Chief Justice
Marshall was correct in considering the ap-
pointment of Marbury as complete by the sign-
ing and sealing of the commission, and in hold-
i^t to the office, and to the ci
evidence of it, and that the secretary held the
commission as a mere depoeitarv, for the per-
sona] and exclusive beneQt *oi Mar- ['60S
bury, there could then be no doubt that a
mandamus might be issued consistently enough
with the Constitution; because the delivery of
the commission would. In that case, be a mere
ministerial act, and the Secretary of State,
quoad hoc, k mere ministerial officer.
In this view of the case, he assented to the
comment of Justice Story that no lawyer could
doubt the power of Congress to authoriie the
proper courts to issue a mandamus in such a
case, and to the similar declaration of Justice
Johnson in S Wheat, and of Justice Thomp-
son In 1 Paine. This, however, falls very far
short of the doctrine now under consideration,
a doctrine which claims for the Leeislature
the power to confer on the courts ot justice
unlimited authority to supervise and control
executive officers, in all matters whatsoever.
In support of this position, the I3th section of
tbe Judicial Act of 17B8 had been invoked
as a legislative declaration that writs of manda-
mus might be issued to any officers of the
United States, executive as well as others. And
it was said that although this section had
been decided in Marbury v. Madison to be un-
constitutional, as attempting to give to the Su-
preme Court an original jurisdiction in this
respect, yet that it was entitled to respect in
the point now under discussion. Independ-
ently of any other answer, it was enough
to say that the section confined the writ to
lESUine of a
of judicial cognizance, and especially forbid
the interference of courts of justice with execu-
tive functions, and that the usages in England
and in this country are in accordance with
these principles. In the cases of The United
States V. Arredondo et at. 6 Peters, 763; 9
Peters, 172, etc., tbe United Statee, in order
to execute the stipulations for the protect Ion
of private property contained In the Florida
Treaty, consented to appear In court at the
suit of tbe claimant, gave the courts ample
authority to decide on the validity of claims
under the treaty, and empowered them when
a claim was established to issue a mandate to*
ministerial officer to make the necessary survey
lilt
BCFiniK ColBT DP THE UNITBD StATBI.
•nd execution of th« decree. The irretevBnc.'k
of this procedure to the present diBCtiaaion i-
obvious. Nor did thU part of the opposing
t derive ' ' - . -.
bad referred; there being
lectionB which had been quoted, which em-
powered the judiciary to interfere, in any way,
except by taking cognizance of suits regularly
Instituted.
•0 7*J 'In eonclusion, the Attorney-Gen-
ei»l insisted that even if the PoBtmngter-Gen-
erkl could properly be regarded in this case as
k mere ministerial officer, and if the relators
could be considered as having a vested legal
right to the credits in question, still the court
below had no jurisdiction to itisiie the manda-
mus, because its authority in this respect was
no greater than that of the ordinary circuit
courts. It was deserving of notice that no at-
tempt had been made by the other side to ex-
plain how it happened that this extended juris-
diction had never before been exercised or as-
serted, although casea calling for its exercise
must frequently have occurred-
But suppose this objection out of lh<' wsy:
suppose the jurisdiction clear, and tlu' l<';;;ii
right of the relators to the credits clainieri Ity
them admitted; yet the court erred in Hiv]iril
Ing the mandamus. It is not every case of i '.if
denial of a vested legal right which is to Iip r<>
dressed by this writ. It must aiipear (li»t
there is no other specific legal rcmedv. In tin'
present case, if the rights of the reUtoVs lie sucli
as their counsel represent, an action on the
cue will plainly lie. This is eonredrd. But
we are told that the recovery in such an action
will be only for the damages prior to the
commencement of the suit, and that they witl
be obliged to bring new suits ad infinitum.
This, however, cannot be necessary. If in the
first action the plaintilT choose to go for the to-
tal damages. Then it it said that the damages
may not be collected; and if collected, that the
relators will not get the specific thing, the en-
try of the credits. This oljjection might have
been made tn each of the cases cited in the
opening, where the liability of the defendant
to an action on the ease was held a sufficient
reason for denying the mandamus.
Nor does it follow, even if the ultimate ef-
ficiency of the legal remedy by action be really
doubtful, that amandamusis to be issued. This
U not one of those writs irtiich is demandable
of strict right; the courts exrrdse a sound le-
gal discretion in awarding it- Being founded
on the prerogative of the crown, the Englisli
Court of King's Bench will not issue It unless
there be » reaJ necessity for it. There must be
a nodus, and one, loo, dignus vendice, or the
court will not interpose. This discretion the
court below was bound to exercise; and if this
court see that they have violated it, the judg-
ment may, and should be reversed. Now, tt ap-
pears by the record not only that Congress
tkave full power to settle this whole controver-
sy, and to give to the relators all they claim,
but that they have applied to Congress far re-
lief, and that their application is still pending.
90S*] In this 'posture of the case, is it dis-
creet for the court to interfere by mandamus t
Suppose a resolution by the directors of a bank,
or other raoueyed corporation, instructing their
1114
;ishler to pay certain moneys U> a erwBtor al
lie corporation; the cashier makes a question as
:o the meaning of the resolution, and refera tba
party to the directors for further instruettODa;
suppose the party to apply to them, but befoc*
lis application is decided, to ask for a mandamua,
vould it be a sound exercise of legal diacretioa
;o interfere I Would not the party be told that
ie bad selected his remedy, and that he Boat
pursue it to a conclusion, before he could aak
for this prerogative writT But the relatora aay
that Congress will not pass any further law.
How can this be judicially known? And why
will not Congress pass a further law! Be-
cause, say the relators, they consider the ease
BO very plain that no new law is necesaary.
This, one would think, would justify an ex-
pectation directly the reverse. At any rata,
the subject having been actually referred to
Congress by the executive, and the relatora
having gone to that body, it would seem to be
manifestly Indiscreet and improper for the
courts to interfere until some more serioua
attempt be made to obtain the direction of that
<leparlment to which the disposition of the
public treasury peculiarly belong*.
Mr. Justice Thompson delivered the opi^aa
of (be court ;
This case comes up on a writ of error froa
the Circuit Court of the United States for the
District of Columbia, sitting for the County <4
Washington.
This case was brought before the court below
by petition, setting out certain contract* made
between the relators and the late Postmaster-
General, upon which they claimed certain cred-
its and allowances upon their contracts for the
transportation ot the mail. That credits and
allowances were duly made by the late Poat-
m aster- General, That the present Postmaster-
General, when he came into office, re-examined
the contracts entered into with his predecessor
and the allowances made by him, and tbe cred-
its and payments which had been made, and
directed that the allowances and credits sboaM
be withdrawn, and the relatora recharged with
divers payments they had received. That tbe
relators presented a memorial to Congrraa ea
the subject, upon which a law was passed oa
the 21st of July, 1830, for their relief: by
which the solicitor of the treasury was aiithir-
i/.cd and directed to settle and adjuat the clain*
of the relatora "for extra lervices per- ['•••
formed by them; to inquire into and deterauat
the equity of such claims, and to make the ra-
lators such allowances therefor as upon fnll ex-
amination of all the evidence may ae«u li^U.
according to the principles of equity. And
that the Post master -General be, and he ia hera^
directed to credit the relators with wfaatrm'
sum or sums of money, if any, the solicitor
shall BO decide to be due to them, for and *a
account of any such service or contract. Aal
Che petition further sets out that the aoHcilar,
VirrnI Maxcy, nssumed upon himaclf tbe fa-
for ma nee of the duty and authority nvatfJ
and conferred upon him by the law, and W
make out and communicate his deciaioa ■*<
award to the Post master -General, by tvA
award and decision tbe relators were alhixd
one hundred and sixty-one thousand five tis-
dred and sixty-three dollar* and eighty rias
ltJ3S
MOU. Thnt llie Postmacter-Gcncrul, on being
iiotilied of thu award, only bo far obeyed and
carried into executioa tbc act of Congieijs as to
direct, and cause to be carried to tlie credit of
the relator*, the aum of one hundred and twenty-
two thousand one hundred and two dollarB and
forty-tix cents. But that be hue, and etill docs
refuM and neglect to credit the relators with
the residua of the Bum bo awarded by the bo-
licitor, amounting to thirty-nine thouH.ind four
hundred and sixt; two dollars and forty-three
cents. And tlie p'.'titian prayed the court to
award a mandamiia directed to the 1'oa I muster -
Ceueral, commanding him fully to comply
with, obey and execute the said act of Cod-
greas, by crediting the relators with the full
and entire sum awarded in their favor by the
solicitor of the treasury.
Such proceed! nee were afterwards bad in
tha case that a peremptory mandamus was or-
dered, commanding tbe said Amos Kendall,
Postraaater-Cmeral, forthwith to crrdit tlie re-
latora with the fdll amount awarded and de-
cided by the solicitor of the treai>ury to be due
to the relators.
The questions arising upon this case may be
considered under two general inquiries:
1. Does the record prt^aent a proper case for
a mandamus t and if so. then,
2. Had tbe Circuit Court of this distrii-L
jurisdiction of tbe case, and authority to issue
* writr
Under the first head of inquiry, it has been
considered by the couriscl on the port of the
Poatmaster Utneral tliat this iB a proceeding
agftinst him to enforce the performance of an
• 10*] ofiicial duty. And 'the proceeding has
be«n treated as an infringement ut<on the eiec-
ativa department of the gorerTiment, which
haa led to a very ei:tended range of argument
OB the independence and duties of that depart-
ment, but which, according to the view tjticen
by the court of the case, is entirely misapplied.
We do not think the proceedings ia this case
interferes in any respect whatever with the
right* or duties of the executive, or that it '
volves any conflict of powers between the
ecutive and judicial department* of the govt
ment. The mandamus does not seek to direct
or control the Post master- General in the di
charge of any ofHcial duty, partaking in ai
respect of an executive character, but to e
force tbe performance of a mere ministcriul
act, which neither he nor tbe President had any
authority to deny or control.
We shall not, therefore, enter into any par-
ticular examination of the line to tie drawn be-
tween the powers of the executive and judi-
cial depHrtments of the government. The
theory of the Conntitiition undoubtedly la that
the great powers of the government are divided
into aeparnte departments; and so far as t
powera are derived from the Constitution,
departments may be regarded as independent
of each other. But beyond that, all are sub-
ject to regulations by law, touching the dis-
charge of the duties required to be performed.
The executive power is vested In a President,
and as far as his powera arc derived from the
Constitution, lie is beyond the reach of any
other department, except in the mode preaerihed
by the Constitution through the impi'oching
power. But it by no mean* follows that every
t 1.. ad.
LNirtn) States. IM
»l1icer In every branch of that department ta
under the exclusive direction of tbe Praaident.
^iui\i a principle, we apprehend, is not, and
certainly cannot be claimed by tbe President.
There are certain political duties imposed
upon many officers in the executive department,
the discharge of which is under tlie direction
of the President. But it would be an alarming
doctrine that Congrea* cannot impose upon anjr
executive officer any duty they may think
proper, which i* not repugnant to any righta
i«ccured and protected by tbe Constitution; and
in such cases, the duty and respoiisiMlity grow
out of and are subject to the control of the law,
und not to the direction of the President. And
this is emphatically the case where tbe duty en-
joined is of a mere ministerial character.
Let us proceed, then, to an examination of
the act required by the mandamus to be per-
formed by the Postmaster-General; and hi* ob-
ligation to perform, or hi* right to resist tb»
pei'forniance, must 'depend upon the [*811
Act of Congress of the id of July. 1S30. This
is a special act for the relief of the relator*,
Stockton and Stoke*, and was passed, aa ap-
pear* on its face, to adjust and settle certain
daims which they had for extra services, as
contractors for carrying the mail. These claims
wire, of course, upon the United States, through
tbe Postmaster-General. The real parties to
the dispute were, therefore, the relators and the
United States. The United States could not,
of course, be sued, or the claims in any way
inforced against the United States, without
their consent obtained through an act of Con-
gress: by which they consented to submit
these claims to tbe solicitor of the treasury to
inquire into and determine the equity of the
claims, and to make such allowance therefor
aa upon a full examination of all the evidence
should seem right, according to the principle*
of equity. And the act direct* the Postmaster-
General to credit the relators with whatever
sum, if any, the solicitor shall decide to be due
to them for or on account of any such *erTice
or contract.
The solicitor did examine and decide that
there was due to the relators, one hundred and
si^ty-one thousand five hundred and sixty-three
dollars nnd ninety. three cents; of this sum the
I'ual master -Genera I credited them with one
hundrcil and twenty-two thousand one hundred
and one dollars and forty-six cents: leaving due
tbe aum of thirty -nine thousand four hundred
and aeventy-two dollars and forty-seven cents,
which he refused to carry to their creiUt. And
tlie object of the mandamus was to compel him
to give credit for this balance.
Under this law the Postmaster-General t*
vealcd with no discretion or control over the
deciHions of the solicitor, nor is any appeal or
review of that decision provided for by the act.
Tlie terms of the submiasion was a matter rest-
ing entirety in the discretion of Congress, and
if they thought proper to vest such a power in
anyone, and especially as the arbitrator was
nn ofHcer of the government, it did not re»t
with tbe Postmaster-General to control OoB-
cross or tbe solicitor in that affair. It Is nn-
npcfBsary to say how tar Congress might have
interfered, by legislation, after the report of the
jtniicitor. Itut if there waa no fraud or mis-
conduct In the arbitrator, of wMch none ia pre-
BlI
SUTBIUB CODBT OF TUB UNino BtAJWa.
tended or auggeated. It mkj well b« qusBtioaed
whether the relaton had not acquired such a
Tested right, aa to be beyond the power of Con-
greai to deprive them of it.
But ao tar from Congress attempting to de-
• IS*] prive the relators of the 'benefit of the
award, they ma-j be considered aa impliedly
eaoctiouing and approving of the decisions of
the solicitor. It ie at leaat so to be considered
t^ one branch of the Legislatnre. After the
Poatmaster- General had refused to credit the
relators with the full amount of the award of
the solicitor, thej, under the advice of the
["reBident, presented a memorial to Congress,
setting out the report of the solicitor and the
Postmaster -General to give them credit for the
amount of the award, and praying Congress to
proride such remedy for the denial of tbeir
rights as in their wisdom might seem right and
proper.
Upon this memorial the judiciary committee
of the Senate made a report, in which they say :
"That Congress intended the award of the
solicitor to De final, is apparent from the direc-
tion of the act that the Postmaster-General be,
and he is hereby directed to credit sucli mail
contractors with whatever sum the solicitor
shall decide to be due to them." If Congress
had intended to revise the decision of the solic-
itor, the Postmaster -General would not have
been directed to make the payment, without
the intervention or further action of Congress.
That unless it appeared (which is not suggtated
by anyone) that some cause exists which would
vitiate or set aside the atiard between private
parties before a judicial tribunal, the commit-
tee cannot recommend the Interferenoe of Con-
rSB to set aside this award, and more eepecial-
is it has been made by a high officer, select-
ed by the government; and the committee con-
clude their report with a resolution "that the
Postmaster -General is fully warranted in pay-
ing, and ought to pay to William B. Stokct
and others, the full amount of the award of the
solicitor of the treasury;" which resolution
unanimously adopted by the Senat«. After
■uch a decided expression of the opinion of one
branch of Congress, it would not have been
necessary to apply to the other. Even if the
relators were bound to make any application to
Congress tor relief, which they clearly were not,
their right to the full amount of the credit, ac-
cording to the report of the solicitor, having
been ascertained and fixed by law, the enforce-
ment of that right falls properly within judi-
cial cognizance.
It was urged at the liar that the PoBtmaster-
General was alone subject to the direction and
control of the President, with respect to the
«xecution of the duty imposed u^on him by this
law, and this right of the Preaident is claimed
«a growing out at the obligation imposed upon
him by the Constitution to take care that the
■•IS*) laws be 'faithfully executed. Thii is
a. doctrine that cannot receive the sanction of
this court. It would be vesting in the Presi-
dent a dispensing power which bas no oounte-
nance for its support in any part of the Consti-
tution, and is asserting a principle which, if
-carried out in its results to all cases falling with-
in it, would be clothing the Preaident with a
^wer entirely to control the legislation of Con-
greas.and paralyie tba »dmiDi*tntion of justice.
iiie
To contend that tbe obligation inpOMd ••
the President to se« the laws faithfully «z«enM
implies a power to forbid titeir execution, !■ ft
novel construction of the Constitution, aad ea-
tireiy inadmissible- But although tbe argmsent
neccHsariiy leads to such a result, we do not
Erceive from the ease that any aucb power haa
en claimed by the President. But, on tte
rary, it is fairly to be inferred tiiat tuck
!r was disclaimed. He did not forbid or
advise the Postmaster -General to abstain fit)B
executing the law and giving the credit thtreby
required, but submitting the matter in a mca-
sage to Congreaa. And the aame judiciary
committee of ttie Senate report thereupon, ia
which they say, The President, in hia mes-
sage, expresses no opinion in relation to the
subject under consideration, nor does he recom-
mend the adoption of any measure whalerer.
He communicates tbe reportot the Postmaster-
General, the review of that report by the solic-
itor of the treasury, and the remarks of tba
Postmaster-Oeneral in answer thereto, togethtf
with such vouchers as are referred to by thea
respectively. That the committee bave cob-
sidered the documents communicated, andean-
ion upon any of the principles advanced ic
former report upon this auoject, nor the eorrcet-
ness of their application to this caac, and rec-
ommend the adoption of tbe resolution betorr
reported."
Thus, u^on a second and full coneideratiiN
of the subject, after hearing and examining tfaa
objections of the Postmaater-Cenerai to tbe
award of the solicitor, the committee report that
the Postmaster -General ought to pay to tha
relators the amount of the award.
The right of the relators to the benefit of th
award ought now to be considered as irreverd-
hly establiahed, and the queation is trbetbn
they bave any, and what remedy.
The act required by the law to be done by
the Postmaater- General is simply to credit tli
relators with the full amount of the award of
the solicitor. This la a precise, definite act.
purely ministerial, and about which tbe Poat-
master-General had no discretion whatcvcT.
*The law upon its face shows theexist-[*lt(
ence of accounts between the relatora and th»
Postof&ce Department- No money was it-
Julred to be paid, and none could haT« beta
rawn out of the treasury without further le^
islative provision, if this credit should overbal-
ance the debit standing against the rclstcn.
But this was a matter with which the Post-
master-General had no concern- He was Ml
called upon to furnish the meana of payiai
such balance, if any should be found. He wm
simply required to give the credit. This «m
not an ofilcial act in any other sense thaa beia{
a transaction in the department where the booki
and accounts were kept, and was au offi^ art
in the same sense that an entry in the miBatt*
of a court, pursuant to an order of the eawli
is an official act. There is no room for the n-
ercise of any discretion, official orotherwiseisl
that ia shut out by the direct and positive eoa-
mand of the law, and the act requimi to be dtar
is, in every juat sense, a mere miniatertal art.
And in this view of the case, tbe qncstiM
arisaa, ia tbe remedy by mandamua the it ■i'
^propriat* remedy |
iBSa
tClNDALL T. TbI UKimi StaTU.
«4
Tbe coounon laW, U It Wkl In force in Mary-
laiid when the ceeslon wu made, remained in
force in this dittrict. We muit, therefore, con-
aider this writ u it WKR underitood at the com-
mon law with respect to iti object ftndpurpOBe,
•nd varying on); in the form required b; the
different character of «ur government. It ia a
writ, in England, iasuing out of the King's
Bench, in the name of the king, and la called a
prerogative writ, but considered a writ of right;
and ii directed to some peraon, corporation or
inferior court, requiring them to do some par-
ticular thing, therein specified, whicli apper-
tains to their office or dut^, and which is sup-
posed to be consonant to right and Justice, and
where there is no other adequate specific rem-
edy.
Such a writ, and for such a purpose, would
■cem to be peculiarly appropriate to the present
ae. The right claimed is just and established
other adequate re meet j.
The remedies su^estedat the bar were, then,
an application to Congress; removal of the
Post master -General from office; and an action
■galnit him for damage*.
The first has been tried and failed. The lee-
end might not afford any certain relief, for his
BueceBsors might withhold the credit in the
aame manner; and, besidea, such extraordinary
meaanres are not the remedies spoken of in the
law which will supersede the right of resorting
to a mandamus, and it is seldom that a private
• 15*] action at 'law will afford an adequate
remedy. If the denial of the right be consid-
ered aa ft ccntinulng injury, to be redressed by a
aeriea of aucceaaive actions as long as the right
ii denied, it would avail nothing, and never j
famish a complete remedy. Or it the whole
amount of the award claimed should be consid-
ered the measure of damages, it niight, and
generally would be an inadequate remedy, where
the damages were large. The language of this
court in the case of Osborn v. The United SUtes
Bank, t) Wheat. S44, ia, that the remedy by
action in such easea would have nothing real in
ft. It would be a remedy in name only, and
not in substance; especially where the amount
of damages ia beyond the capacity of a party
to pay.
That the proceeding on a mandamus is a case
within the meaaing of the act of Congress,
has been too often recognized in this court to
require any particular notice. It is an action
or auit brought in a court of juatice, assert-
ing a right, and is prosecuted according to the
forma of Judicial proceedings.
The next inquiry is, whether the court be-
low had jurisdiction of the case, and power
to issue the mandamus?
This objection reels upon the daeision of
tliia court in the eases of M'Intyre v. Wood,
7 Cranch, 604; and M'Cluny *. Silliman, 6
Wheat. 3S&. It is admitted that those cases
have decided that the circuit court* of the
United States, in the several States, have not
authority to issue a mandamus against an offi-
oer of the United Statea. And uoieea the C^r-
enit Court in the District of Columbia has
larger powers in thiu respect, it had not au
Uiority to issua A mandamus in the present
1 1<. «d.
It be«omea necessary, therefore, to examine
with attention tlie ground on wiiich those
cases rested. And it Is to be observed tliat, al-
though the question came up under the names
of different parties, it relatea to the same claim
in both; and, indeed. It was before the court
at another time, which ia reported in 8 Wheat.
SUB.
The question In the flrst ease, orlgiaated in
the Circuit Court of the United States, in Ohio,
and came to this court on a certiScata of di-
vision of opinion. The second time it was aa
original application to this court for the man-
damus. The third time, the application waa
to the State court, and waa brought here by
writ of error, under the twenty-Ifth aecUob
of the Judiciary Act.
By the first report of the case (In 7 Cranch),
it appears that the application to the Circuit
Court waa for a mandamus to the register of a
land -office in Oliio, commanding him to iasue a
Rnai certiBcate of 'purchase for eer- ['SIS
tain lands In that State, and the court, in giv-
ing its Judgment, say the power of the circuit
courti to issue the writ of mandamus Is con-
fined exclusively to those caaes in which it may
added, if the eleventh s
of the Judiciary Act had covered the whole
ground of the Constitution, there would be
much ground for exercising this power in mamy
cases wherein some ministerial act is necessary
to the completion of an individual right, aris-
ing under the law* of the United Statea, and
then the fourteenth aection of the act would
sanction the isauing of the writ for such a pur-
pose. But that although the judicial power
under the Constitution extenda to all caaea
arising under the laws of the United States, tlio
Legislature have not thought proper tn dele-
gate that power to the circuit courta, except In
certain specified cases. The decision, then,
turned excluaively upon the point that Con-
gress had not delegated to the circuit courts all
the Judicial power that the Constitution would
authorize; and admitting what certainly can-
not be denied— that the Constitution is broad
enough to warrant the vesting of such power
in the circuit courts — and If in those courts, it
may be vested in any other inferior courts; for
the judicial power, aays the Constitution, shall
be vested in one Supreme Court and such In-
ferior courts as the Congress may *rom time to
time ordain and establish.
It Is not designated by the court, in the case
of M'latire v. Wood, in what respect there ia a
want of delegation to the circuit courts of the
power necessary to take cognizance of such a
caae and Issue the writ. It is said, however,
that the power is conSned to certain specifled
rasna. among which la not to be found that of
issuing a mandamus in such a case as was then
before the court. It is unnecessary to enter
into a particular examination of the limitation
upon the power embraced in this eleventh sac-
tion of the Judiciary Act. There is, maai-
f''Btly, aome limitation. The circuit courta
have certainly not jurisdiction of all suita or
caspB of a civil nature at common law, and in
equity. They are not courts of general juria-
diction In all such eases, and an averment is
necessary, bringing the caae within one of the
specified daasea. But the obvioua inference
«»
BupBEMk CotiBt or TBI tTitinD Seatu.
lt»
from the caae of Mlntlre t. Wood, ia, that ud-
dcr the Conatitution, the power to iaaue a inan-
datnuB to an executive ofGcer of the United
States uiBj be vested tn the inferior courts of
the United States; and that it is the appropr'
617*] the performance of a ministerial
nefessary to the completion of an individual
right arising under tlie laws of the United
Statea. And the case now before the court is
precisely one of that description. And if the
Circuit Court of this district has the power to
issue it, all objection arising pither from the
character of the partv, as an officer in the ex-
ecutive department of the government, or from
the nature of the act commanded to be done,
must be abandoned.
Ad application for a mandamus, founded on
the same claim, was made to this court under
the name of M'Cluny v. Silliman, as reported
in 2 Wheat. 369; and the application was re-
fused on the authority of Marbury v. Madison,
1 Cranch, 137, that this court had no original
jurisdiction in such cases.
The case came up again under the name of
M'Cluny v. Silliman, fl Wheat. G9B, on a
writ of error to a State court, under the 2Sth
section of the Judiciary Act; and the only
question directly before the court was whether
a State court had authority to issue a mancln-
mus to an officer of the United States, and this
power was denied. Mr. Justice Johnson, who
gave the opinion, and who had given the opin-
ion of the court in M'Intire v. Wood, alluded
to that case, and gave some account of the ap-
plication in that case, and the grounds upon
which the court decided It; and observes that
the mandamus asked for in that case was to
perfect the same claim, and, in point of fact,
was between the same parties; and in answer
to what had been urged at the bar with respect
to the character of the parties, says that case
did not turn upon that point ; but that both the
argument of counsel and the decision of the
court, ahow that the power to issue the man-
damus in that case, was contendrd for as inci-
dent to the Judicial power of the United States;
and that the reply to the argument was, that
although it might be admitted that this con-
trolling power over its ministerial officers would
follow from vesting in its courts the whole
judicial power of the United States, the argu-
ment fails here, since th> Lepalature has only
made a partial delegation of its judicial powers
to the circuit courts. That all cases arising
under the laws of the United States arc not.
per se, among the cases comprised within the
jurisdiction of the circuit courts, under the
provisions of the eleventh section.
It is, he says, not easy to conceive on what
legal ground a State tribunal can, in any in-
states have not thought proper to delegate that
«)8*] power to their own courts. But 'when
In the case of Marbury v. Madison, and M'In-
tire V. Wood, this court decided sgainst the ex-
ercise of that power, the idea never presented
itself to anyone that it was not within the scope
of the judicial power of the United States, al-
though not vested by law in the courts of the
general government. And do one will contead
that it waa among the reserved powers of lh«
States, because not communicated by lav U
the courts of the United States.
The result of these cases, then, clearly i^
that the authority to issue the writ of manda-
mus to an officer of the United SUtes, com-
manding him to perform a specific act required
by a law of the United SUtes, is within tba
scope of the judicial powers of the United
}>tates, under the Constitution. But that tha
whole of that power has not been commuBi-
cated by law to the circuit courts; or in other
words, that It was then a dormant power not
yet called into action, and vested in thoaa
courts, and that there is nothing growing out
of the odicial character of the partv that will
exempt him from this writ, if the' act U> b*
performed is purely ministerial.
It must be admitted, under the doctrine of
this court in the cases referred to, that unle>s
the Circuit Court of this district is vested with
broader powers and jurisdiction in this re*p*et
thnu is vested in the circuit courts of the United
States in the several States, then the man JamiM
in the present case was issued without au-
thority.
But in considering this question, it must h«
borne in mind that the only grouud upon
which the court placed its decision, was that
the constitutional judicial powers on this sub-
ject bad not been imparted to those courts.
In the first place, the case of Whcelwri^
pt al. V. The Columbia Insurance Co. 7 Wheat,
534, furnishes a very strong, if not eoncluaivs
inference, that this court did not consider tha
Circuit Court of this district as standing on tte
same footing with the circuit courts in tht
States, and impliedly admitting that it had
power to issue a mandamus in a case analogous
to the present. A mandamus in (hat caac had
been issued by the Circuit Court of this dis-
trict, to compel the admission of the defend-
ants in error to the offices of directors in th«
Columbian Insurance Company, and the caH
brought before this court by writ of error;
and the court decided that a writ of error
Id lie, and directed affidavits to lie produced
" ut it not appearing that it amounted to oo*
lousand dollars (the sum required to give Ibis
lurt appellate jurisdiction from the final judj-
ents or decries of 'the Circuit Court ['•It
of this District), the writ of error was after-
wards quashed.
It wo\ild s^'cm to be a reasonable, if not •
necessary conclusion, that the want of a sufi-
cient value of the matter in controversy was
the sole cround upon which the writ of errw
was quBBJipd or diamissed. If ft hnd been OB
Die ground that the court below had ni>t jurt*-
'ItL'tion in the case, it can hardly bf bclterrd
that the court would have directed affidai-ils lo
l>e produced of ttie value of the matter in con-
troversy. This would have been an act per-
fectly iiugotory. and entirely unavailable, if t^
matter in controversy had been shown tn bt
above the value of one lho>i!>nnd dollars. If
the want of jurisdiction in the Qreuit Cmr%
had been the grounil on which thp writ of er-
ror was quashed, the same course would have
been pursued an was done in the case of CuMii
V. The Georgetown t Alexandria Turnpfki C»
0 Cranch, 233, where the writ of error was
mi
Ke.ndaU. V. Thb Umm States.
tu
quashed on the ground thnt the court below
had oat cognizance of the matter-
But let US exAmiuB the Act of Congresa of
the 2Jlb of Febrowy, 1801, concerning the
District of Columbia, and by which the Circuit
Court ia organized, and ita powers and juria-
diction pointed out. And it u proper, prelimi-
Rtuil;, to remark, that under the Conatitution
of the United State*, and the cessions made by
the Slates of Virginia and Maryland, the ex-
ercise of e^iclusive legislation in all caaes what-
aoevcr is given to Congresa. And it is a sound
principle that in every well organized govern-
ment the Judicial power should be co-extensive
with the legislative, so far at least as private
rights are to be enforced by judicial proceed-
ings. There is in tliJs district no diviaioa of
powers between the general and State govern-
menta. Congress has the entire control over
the district for every purpoae of government,
and it is renxonable to suppose that in organ-
izing a judicial department here, all judicial
power necessary for the purposes of government
would be vested in the courts of justice. The
Grcuit Court here is the highest court of orig-
inal juriadiction ; and if the power to issue a
mandamus in a case like the present exists in
any court, it it vested in that court.
Keeping this consideration in view, let us
look at tlie Act of Congreas.
The first section declares that the lawa of the
Slate of Maryland, aa they now exiat, shall be
sod continue in force In that part of the dis-
trict which was ceded by that State to the
820*] United States; which U *the part lying
in this side of the Potomac, where the court
was sitting when the mandamus was issued- It
was admitted on the argument that at the date
if this act the common law of England was in
force in Maryland, and of course it remained
ind continued in force in this part of the dis-
trict, and that the power to issue a mandamus
n a proper case is a branch of the common
aw cannot be doubted, and has been fully
«oognized as in practical operation in that
Hate in the case of Runkle v- Winemiller et al-
I Harria A M'Uenry, 448- That case came
>efore the court on a motion to show cause
vhj a writ of mandamus should not issue,
ommanding the defendants to restore the Rev.
Villiam Runkle into the place and functions
if minister of a certain congregation. The
ourt entertained the motion, and afterwards
ssued a peremptory tnandamus- And in the
>pinion delivered by the court on the motion,
eference ia made to the English doctrine on
he subject of mandsniua; and the court say
hat it is a prerogative writ, and grantable
rhen the public justice of the State Is con-
emed, and commands the execution of an
et, where otherwise juatice would be oh-
tructed. 3 Boc- Abr. 527. It is denominated
prerogative writ because the king, being the
[vuntain of justice, it is interposed by his au-
4ority transferred to the Court of King's
lench, to prevent disorder from a failure of
iiatice where the law has established no specific
emedy, and where in justic* and goodgovern-
lent there ought to be one. 3 Burr. 1287.
t is a writ of right, and lies where there ia a
ight to execute an office, perform a service, or
xerctse a franchise, and a person is kept out
r poaeession, and dispossesaed of such right,
> 14. ed.
and has no other spedflc legal remedy, t
Burr. 1268.
These, and other cases where a mandamus
has been considered in England as a fit and
appropriate remedy, are referred to by the gen-
eral court) and it is then added that the posi-
tion that this court is invested with similar
powers is generally admitted, and the decisions
have invariably conformed to It; from whence,
say the court, the inference is plainly deducible
that this court may, and of right ought, for the
sake of justice, to intcrpoae In a summary way,
to supply a remedy wliere, for the want of a
specific one, there would otherwise be a failure
of juatice.
The theory of the British government, and
of the common law is, that the writ of man-
dsmus LB a prerogative writ, and is aometimes
called one of the flowers of the crown, and is
therefore confined only to the King's Bench;
where the king, at one period of 'the [*821
judicial history of that country, is said to have
sat in person, and is presumed still to sit. And
the power to issue this writ is given to the
King's Bench only, as having the general
supervising power over all inferior jurisdic-
tions and officers, and ia co-extensive with
judicial aovereignty. And the aame theory
prevails in our Slate governments, where the
common law is adopted, and governs in the
administration of justice; and the power of
issuing this writ is generally' confided to the
highest court of original jurisdiction. But it
cannot be denied but this common law prin-
ciple may be modified by the Legislature in
any manner that may be deemed proper and
expedient. No doubt the British rarliament
might authorize the Court of Common Pleas
to issue this writ; or that the Legislature of
the States, where this doctrine prevails, might
give the power to issue the writ to any judicial
tribunal in the State, aceording to its pleasure;
and in some of the States this power is vested
in other judicial tribunals than the highest
court of original jurisdiction. This is done in
the State of Maryland, subsequent, however, to
the 27th of February, 1801- There can be no
doubt but that in the State of Maryland a writ
of mandamus might be issued to on executive
officer, commanding him to perform a ministe-
rial act required of him by law ; and if it would
lie In that State, there can be no good reason
why it should not lie in this district in analogous
cases. But the writ of mandamus, as it ia used
in the courts of the United States, other than
the Circuit Court of this district, cannot, in
any just sense, be aaid to be a prerogative writ,
according to the principles of the common law.
The common law has not been adopted by
the United States, as a system in the States
generally, as has been done with respect to thi*
district- To consider the writ of mandamus
in use here as it is in England, the issuing of it
should be confined to this court, as it Is there
to the Kins's Bench, But- under the Constitu-
tion, the power to issue tliis as an original writ,
in the general sense of the common law, can-
not be given to this court, according to the
derision In Marbury v. Madison.
Under the Judiciary Act, the power to issue
this writ, and the purpoaea for which it may be "
issued In the courta of the United Statea, other
than In this district, is given by the fonrteenlb
Itlt
mnn Onm ov tri tTinnD Br An
McUoB M line act, under the general delegation
of pnwer "to Uaue all other writa not ipecially
provided for by atatute, whirb may be necee-
WU7 for the exercise of their respective Juris-
• 29*1 dictions, and agreeable to the *prin-
dplea and uaages of law," And it ia under
tlua power that thia court isBues the writ to the
rircuit court* to compel tbem to proceed to a
final Judgment or decree in a cause, in order
that we may exercise tlie juriidictlon of review
given by the law; and the Mme power ia ex-
ercised by the circuit courta over the district
eourta, where a writ of error or appeal lie* to
tba (3rcuit Court. But this power le not eicr-
daed, aa in England, by the King'a Bench, as
having a general auper vising power over in-
ferior courts; but onl; for the purpose of bring-
ing the case to a final judgment or decree, eo
that it may be reviewed. The mandamus does
not direct the inferior court bow to proceed,
but only that it must proceed, according to its
own Judgment, to a final determination; other-
wise it cannot be reviewed In the Appellate
Court. Bo that It ia in a special, modified man-
ner, in which the writ of mandamus ia to be
used in this court, and In the circuit courta in
the State*; and does not stand on the aame
footing, aa in this district, under the ffeneral
adoption of the laws of Maryland, which in-
cluded the common law, as altered or modified
on the STtb of February, IBOl.
Thus far the power of the Qrcuit Court to
iuue the writ of mandamua has been con-
sidered aa derived under the first section of
the Act of 2Tth of February, 1801. But the
tbfrd and fifth sections are to be taken into
consideration In deciding thia question. The
third aeetion, ao far as It relates to the present
inquiry, declares: "That there shall be a court
in this district, which shall be called the Cir-
cuit Court of the District of Columbia; and the
aaid court, and the judges thereof, shall have
all the powers by law vested in the circuit
courta and the judges of the circuit courts of
the United States." And the fifth section
declares: "That the said court shall have cog-
nlmnce of all cases in law and equity between
parties, both or either of which shall be resi-
dent or be found within the district."
Some criticisms have been made at the bar
between the use of the terms "power" and
"cognizance," aa employed in those sections.
It is not perceived how such distinction, if any
exists, can affect the construction of tills law.
That there Is a distinction, in some respects,
cannot be doubted; and, eenerally speaking,
the word "power" ia used In reference to the
means employed in carrying jurisdiction into
execution. But It may well be doubted whether
any marked distinction la observed and kept
up in our laws, so as in any measure to affRct
the conatruction of those laws. Power must
include jurisdiction, which Is si'neraltv used in
CSS*] reference to the exercise of *tliat power
in courts of justice. But power, as used in the
Constitution, would seem to embrace both.
Thus, all legislative power shall be vested In
Congress. The executive power shall be vested
In a President. The Juolcial power shall be
vested in one Supreme Court, and In auch in-
ferior courts aa Congress shall, from time to
time, ordain and establish; and this judicial
power shall axtend to all casea in law ana equity
arising under this Constitution, the laws of tha
United States, and treaties made, or wUch
shall be made, under their authority, etc Thia
power must certainly embrace junadictioD. ro
far as that term is applicable to the exercise of
legislative or executive power. And aa relatea
to Judicial power, the term "jurisdiction" ia Bot
uaed until the distribution of those powera
among the aeveral eourta is pointed out and de-
fined.
There ia no anch distinction in the two sec-
tions of the law In the uae of the teima
"power" and "jurisdiction," as to make it
Tiecessarv to consider them separately If there
is any distinction, the two sections, w ten taken
together, embrace them both. The third gives
the power, and the fifth gives the jurisdiction
on the cases In which that power ia to be exer-
cised. By the fifth section, the court baa cog-
niiance of all actions or suits of s civil natutr,
at common law or In equity, in which tbe
United States shall be plaintiffs or complainanta;
and also of all cases in law and equity between
parties, both or either of which shall be reaident
or be found within the district. This latter lim-
itation can only afl'ect the exercise of the juris-
diction, and cannot limit the subject matter
thereof. No court can, in the ordinary ad-
ministration of Justice in common law pro-
ceedings, exercise jurisdiction over a party
unless he shall voluntarily appear, or ia found
within the jurisdiction of the court, so as to be
sened with process. Such process cannot reach
the party beyond the tErritorisI jurlsdirti<ni of
tbe court. And besides, this is a peraoaal
privilege which may be waived bj sppcaranee;
and if advantage is to be taken of it. it muat be
by plea or some other mode at an early atAse in
the cause. No such objection appeara to have
been made to the jurisdiction of the court in tba
present case. There was no want of jurislirtioah
then, aa to the person; and as to the subject
matter of jurisdiction, it extends, according ta
the language of the act of Congrrss, to all easrt
in law and equity. This, of course, meana
cases of judicial cognizance. That procerdiags
on an application to a court of justice for a
mandamus are judicial proce*^iiiiM, cannot
admit of "a doubt, and that this is a [*«S4
case in law is equally clear! It is the prosecu-
tion of a suit to enforce a right spcured by a
sppcisl act of Congress, requiring of the Poct-
master-Qeneral the performance of a preeisr.
definite, and specific act, plainly enjoin^ by
thi! law. It cannot be denied but that Contcroa
had the power to command that act to be doae:
and the power to enforce the performance el
the act must rest somewhere, or it will preseat
a case which has often been said to involve a
monstrous absurdity in a well organlted gov-
ernment, that there should be no remedy.
although a dear and undeniable right ahonU
be shown to exist. And if the remedy canast
be applied by the Circuit Court of this diatrieL
it exists nowhere. But, b^ the express tcr«s
of this act, the jurisdiction of thia CSrenl
Court extends to all esses in law, etc. No ■or*
general language could have been uaed. Aa
attempt at specification would have weakened
the force end extent of the general words — ^sB
cases." Here, then. Is the delention, to tkis
Orcult Court, of the whole judieial powtt (s
this district, and in tbe very langua^^ «( th
PfMn It.
Kkhd&u. v. Tax Uktib) Statbi.
Omwtlttition; which deeUna ihat ths judlefal
power ahftll ettmd to »I1 euei in Uw »nd
equity Brieing under the lavra of the United
States, et«., and suppliei whit waa Mid bj this
court in the cases of M'Tntire v. \\i>od, and in
H'ClUDy T. Sllliman to be wr.nting, vie.: That
the whole judicial power hid not heen dels-
gated to the circuit courts in the Stateei and
ivhich la expressed in the itrong languaee of
the court, that the idea nerf presented itself
to anjone that rt wm not within the scope of
the judicial powers of the United States, al-
though not vested b; law in the court* of the
general goremment.
And the power in the court below to exercise
this jurixdiction, we think, results Irreiiatibl}>
from the third section of the Act of the 27th of
February, IMOl, which declares that the laid
court, and the judges thereof, shall have ill
the powers by lew vested in the circuit courta
and the judges of the circuit courts of the
United States. The question here is, what
circuit courta are referred to. By the Act of
the 13th of February, 1801, the circuit courta
established under the Judiciary Act of 1T8S
were nbolished, and no other circuit courta
were in existence except tlioae establiahed by
the Act of 13th February, IBOl. It waa ad-
mitted by (he Attorney -General, on the argu-
ment, that if the language of the law had been,
all the powers now vested in the circuit courts,
etc., reference would hare been made to the
Act of the 13th February, 1801, and the courta
thereby establiahed. We think that would not
have varied the construction of the act. The
025*] "reference is to the powers by law
Tested in the circuit courts. The question
necessarily arises, what law! The question ad-
mits of no other answer than that if must he
some existing law, hy which powers areveated,
and not a law which had been repealed. And
there is no other law in force, vesting powers
in circuit courta, except the law of the 13th of
February, 1801. And the repeal of thia law,
fifteen months afterwards, and after the court
In this district had heen organized and gone
Into operation, under the Act of e7th of
February. 1801, could not, in any manner, affect
thut law, any further than waa provided by the
repealing act. To what law waa the Circuit
Court of this district to look for the powers
vested in the circuit courtiof the United States,
by which the court was to be governed, during
the time the Act of the 13th of February was
in force f Certainly to none other thin that act.
And whether the time was longer or shorter
before that law was repealed, could make no
difference.
It wiB not an uncommon course of legislation
In the Statea at m early day to adopt, hy refer-
ence. British statutes; and thia has been the
course of legislstion by Congreas In many In-
stances where State practice and State process
haa been adopted. And auch adoption has
alwava been considered la referring u> the law
exiating at the time of adoption; and no aulwe-
quent legislation lias ever heen supposed to
affect it. And auch must necessarily be the
effect and operation of auch adoption. No other
rule would furnidt any certainty aa to what
waa tbe law, and vould be adopting proapec-
Uvaly, all changea ',hst might be made tn the
Uw. And thit hai beeo tlie Hg^t In which
• It. cd.
this eourt has viewed auch lagialation. In the
case of Cathcart v. Rolnnaon, 6 Petera, 280, the
court, in speaking of the adoption of certain
English atatutea, say, by adopting them, they
become our own as entirely as if they had been
enacted by the Legislature. We are then to
conatrue this third section of the Act of 27th of
February, 1801, aa if the eleventh section of
the Act of 13th of February, 1601, had been In-
corporated at full length; and by thia section It
is declared that tbe circuit courts shall hara
cognisance of all cases in law or equity
arisins under the Constitution and laws of the
United Statea, and treaties made, or which
shall be made under their authority; which are
the very words of the Conatitution, and which
ia, of course, a delegation of the whole judicial
power, in caaea arising under the Constitution
and laws, etc.; which meets and supplies the
precise want of delegation of power which
prevented the exercise *of jurisdiction [*a2l
in the cases of M'Intire v. Wood and M'Cluny
V. Siliiman; and must, on the principles which
governed the decision of the court In those
cases, be sufficient to vest the power In the
Cin^uit Court of thia district.
The judgment of the court below Is accord-
ingly affirmed with costs, and the cause remand-
ed for further proceedings.
Mr. Chief Justice Taney:
As thfk case has attracted some share of the
puhlic attention, and a diversity of opinion
exiats on tbe bench, it la proper that I ahould
state the grounds upon which 1 dissent from the
judgment pronounced by the court. There is
no controversy about the facts; and aa they
have been already aufficiently stated, I need not
repeat them.
Upon aome of the points much ar^^ed at the
bar, there is no dinerence of opinion in the
court. Indeed, I can hardly understand how
BO many grave quest Ion a of constitutional
power have heen introduced into the discussion
of a caae like this, and so earnestly debated on
both sides. The olHce of Post master -Oeneral is
not created by the Constitution, nor are ita
powers or duties marked out by that instru-
ment. The office waa created by act of Con-
gress; and wherever Congress creates such an
office as that of Postmaster -Oeneral, by law,
it may unquestionably, bylaw, limit its power*,
ind regulate its proceedings; and miy subject
it to any supervision or control, executive or
judicial, which the wiadom of the Legislature
may deem right. There can, therefore, be no
question about the constitutional powera of the
executive or judiciary in this case. The con-
troversy depends simply upon the construction
of an act of Congress. The Cireuit Court for
the District of Coliinihin was organized by the
of February 27, 1801, which defloes ita
powers and jurisdiction; ind if that law, by its
true construction, confers upon the court the
power it has In tbla Instance exercised, then the
judgment must be affirmed.
There is another point on which there ia no
difference of opinion in the court. Wo all
" Ihst by the Act of .Tuly 2, 1836, it waa
iliily of the Poitms liter -Qeneral to credit
ktun i<n'l Ktokeii with the amount awarded
by the solicitor of tbe treasury; that no dis-
cretionary power ia relation to tbe award, was
SttPBEMB Conn or tbk Umm Btubk.
SlrcB to the Postmaflter-Oeneral, and that the
uty enjoined upon bim was merelj mlnii-
terial.
•ai*] •These principles bping agreed on, it
followa that this was a proper eaie for a m~~
damuB, provided Con^esa have conferred
tht Circuit Court for the District of Columbia
the prerogative, jurisdiction and powera, eX'
trciaed b; the Court of King's Bench in Eng-
land; for Stockton and Stokes are entitled ta
have the credit entered in the manner directed
by the act of Congress, and the; have no othei
•pecifie means provided by law for compelling
the performance of this duty. In such a rase,
the Court of King's Bench in England would
undoubtedly issue the writ of mandamus to
•uch an olhcer, commanding him to enter the
credit. Have Congress conferred similar juris-
diction and powers upon the Circuit Court for
this district! This is the only question in the
case. The majority of my brethren think that
this jurisdiction and power has been conferred,
and they have given their reaaons for their
opinion. I, with two of my brethren, think
otherwise; and with the utmost respect for the
opinion of Jbe majority of this court, I proceed
to show the grounds on which I dissent from
their judpment.
It has be^n decided In this court that the cir-
cuit courts of the United States, out of this dis-
trict, have not the power to issue the writ of
mandamus to an oHicer of the general govern-
ment, commanding him to do a ministerial act.
The question has been twice bpfore the Supreme
Court, and upon both occasions was fully ar-
gued and deliberately considered. The Drat
was that of M'lntire r. Wood, 7 Cranch, 604,
decided in IB1>I. It waa again brouf^t up in
1821 in the case of M'Cluny v. Siltiman, S
Wheat, ens, when the former decision was
re-examined and affirmed. And it ia worthy
of remark, that although the decision flrst men-
tioned was made twenty-flve yeara ago, yet
Congress have not altered the law or enlarged
the jurisdiction of the circuit courts in this re-
spect; thereby showing that it has not been
deemed advisable by the legislature to confer
upon them the jurisdiction over the oBicers of
the general government, which ia claimed by
the Cijeult Court for this district.
As on reason of policy or public convenience
can b« assigned for giving to the Circuit Court
here a jurisdiction on this subject which has
been denied to the other circuit courts, those
who maintain that it has been given ought to
show us words which distinctly give it, or from
which it can plainly be inferred. When Con-
gress intended to confer this Jurisdiction on the
Supreme Court by the Act of 1TS9 (ch. ZO],
they used language which nobody could mis-
understand. In that law they declared that
the Supreme Court should have |K>wer to issue
• 28*] *"writs of mandamus, in cases war-
ranted by the principles and usagea of law to
any courts sppointed, or persons holding office,
Dnder the authority of the United States,"
Here aro plain words. But no such words of
rt are to be found in the Act of February
1801. which established the Qrcuit Court
of the District of Columbia, and deRned
ha powers and jurisdiction. Indeed, those
who insist thnt the power is given, seem to
^ve much difficulty in Axing upon tfae par- '
tieular dansa of tlia law, which oottfcn IL
Sometimes it la said to be derived from oncase-
tion of the act, and then from another. At
one time it is aaid to be found in the Srst sec-
tion; and soraetimea it is said to be cquaJly dia-
coverahle in all of them. The power ia tm-
tainly nowhere given in direct and poaitin
terms: and the difficulty in pointing out tlM
particular clauae from which the power is
plainly to be inferred, is strong proof that Coa-
great never intended to confer it. For if tha
Legislature wished to veet this power ia tlia
Circuit Court for this district, wnile thcj de-
nied it to the circuit courts sitting in the StatM,
we can hardly believe that dark and amttgo-
oua language would have been selected to eoa-
vey their meaningi words would have been
found in the law equally plain with those ahov*
quoted, which conferred the power on the Su-
preme Court.
But, let us examine the sections which an
ipposed to give this power to thia CSicnit
Court.
1st. It is said to be given by the flnt seetioa.
This section declares that the laws of Uary-
land, as they then existed, should be in force
in that part of the district ceded by Maryland,
and the laws of Virginia in Ihat part of tiie
district ceded by Vir^nia- By this section, the
common law In civil and criminil cases, at
existed in Maryland at the date of tbis act of
congress (February E7, ISOl], became the taw
of the district on the Maryland side of tfae P»-
it is argued that this Circuit Court
being a court of general iurisdiction in caaea at
w.and the bigbeet court of origiaal
jurisdiction in the district, the right to ism
the writ of mandamus is incident to ita eon-
mon law powers, as a part of I lie laws of
Maryland, and distinguishes it in this reaptrt
from the circuit courts for the Stales.
The argument Is founded in a miatake a* to
the nature and character of the writ of maada-
nus as known to the English law, and as uari
'and practised in Maryland at the date (*()*
of the act of Congress in question.
The power to issue the writ of laandamos te
I officer of the government, commanding tuH
> do a ministerial act, does not, by the coo-
on law of England, or by the laws of Jfsry-
land.as they existed at the time of the eessioa,
belong to any court whose jurisdiction was lim-
ited to a particular section of country, and vat
90t co-extensive with the sovereignty which es-
tablished the court. It may, without doubt,
be conferred on such courts by statute, as «is
done in Maryland, in 1806, after the cessim of
district. But, by the principles of the
lew and the laws of Maryland, as I1h7
existed at the time of the cession, no court had
right to issue the prerogative writ of mania-
us, unless it was a court in which the judirial
ivereignty was supposed to reside; and which
exercisnl a general superintendence over the in-
terior tribunals and persons throughout lb* aa-
tian or State.
In England this writ can be issued by Iht
King's Bench only. It cannot be Issued 1^ lb*
Court of Common Pleas, or any other (oart
known to the English law, except the Court «l
Bench. And the prculiar character
and constitution of that court, from whith it
derives thia high power, are so well knowa aal
Peters It-
1S3S
KSHDALL *. TbE UkITED STATES.
funUiar to every Iftirytr, tlimt H Is Mwrcaly nee
eaiBrf to cite KuthoritieB on the lubjcct. Itt
peculiar powers are clenrlj st.ited in 3 Black.
Oom. 42, in tbe following words; "The ju-
riadiction of thia court fa verj high uid tran-
■eendant. It keepa all Inferior Juriadictiona
within tbe bounds of their Buthority, and may
either remove their proceedings to be deter-
mined here, or prohibit their proKresa below.
It superintends all eivil eorporatums in the
Ungdom. It commmnde magistrates and oth-
ars to do what their duty requirea in every
^ase, where there ia no other apecifie remedy,
ft protects the liberty of the subject by apeedy
and summary interposition," etc. It is from
this "high and transcend ant" jurisdiction that
the Court of Kind's Bench derives the power
to Issue the writ of mandamus, as appears from
tbe same volume of Blacks tone's Commen-
taries (p. 110). "The writ of mandamua," aays
the learned commentator, "la in general a
eommand issuing in tha Idnff'a name from the
Court of King's Bench, ana directed to any
person, corporation or inferior court of judi-
cature within the king's dominions, requiring
them to do some particular thing therein apeci-
lled, which appertains to their office and duty,
w)d which the Court of King'a Bench has pre-
CSO*] vioualy determined, or *at least sup-
poses to be, consonant to right and justice. It
ii ft high prerogative writ of a most extensive
Ij remedial nature." And Mr. Justice Butler,
fn his introduction to the law relative to trials
•t nisi prius, also placea the right to issue this
writ upon the peculiar and high powers of the
Court of King's Bench. In page 195, he says:
*^he writ of mandamus is a prerogative writ
iaeuing out of the Court of King's Bench (as
that court has a general super in tendency over
all Inferior jurisdictions and persons), and ia
the proper remedy to enforce obedienue to acta
of Parliament and to the king's charter, and in
audi a case ia demandable of ri^ht." Indeed,
tB all of the authorities it Ii uniformly called
a "prerogative writ," in order to distinguish it
from the ordinary process which belongs to
eoarta of justice, and it was not originally con-
sidered as ■ judicial proceeding, but was eier-
cdied OS a prerogative power. In the caae of
Audley r. Jay, Popbam, 170, Doddridge, Jus-
tice, said: "This court hath power not only
In' judicial things, but also in some things
which are extrajudicial. The mayor and com-
monalty of Coventry displaced one of the alder-
mea and he was restored; and this thing ia pe-
mliar to this court, and is one of the fiowera of
These peculiar powers were possessed hf the
Oonrt of King's Bench, because the king origi-
nally aat there in peraon, and aided in the ad-
ministration of justice- According to the
theory of the English constitution, the king is
the fountain of justice, and where the laws did
Bot afford a remedy and enable the individual
the sovereign were brought in sid of the ordi-
nar; Judicial powers of the court, aud the ma.n-
daraos waa issued iu his name to enforce the
execution of the law. And although the king
baa long since ceased to sit there in person, yet
the sovereign is still there in construction of
law •» for OS to enable the court to ezerciae its
• It. cd.
prerogative powers in Ma name; and hene« Ita
powers to issue the writ of mandamus, the na-
ture of which Justice Doddridge ao forcibly
dfsci-ilws by calling it extrajudicial, and one of
the flowera of the King's Bench. It ia, there-
fore, evident, that by tbe principlea of the com-
mon law, this power would not be Incident to
any court which did not possess the general
iiiperintending power of the Court of King'a
Bench, in whic)i the aovercignty might by con-
struction of law be supposed to sit, and to exert
there its prerogative powers in aid of the court,
in order that a right might not be without a
remedy.
The English common law was adopted In the
Colony of Maryland, 'and the courts of [*I81
the province formed on (he aame principlea.
The proprietary government established what
was called the Provincial Court; in which it
appears that, in imitation of what had been
done in England, the lord proprietary, in an
early period of the colony, sat in person.' Thia
eourt possesspd the same powers in the provinee
that belonfiiMJ to the Court of King'a Bench in
England, lis jurisdiction was co-ortensive with
the dominions of the lord proprietary, and it
exercised a general superintendence over all In-
ferior tribunals snd persons in the province,
and consequently possensed the exclusive power
of iaauing tbe writ of mandamus.
When the Revolution of 1770 took place, the
name system of jurisprudence woa adopted;
and the fifty-sixth article of the constitution of
Marylnnd provided, "that three persons of in-
iat Court, and that the same court be
hereafter called and known by the name of tbe
Cicneral Court." No further description of the
jurisdiction and powers of the General Court
Is given. It, therefore, in tbe new order ol
things, was clothed with the same powers and
jurisdiction that bad belonged to the Provin-
cial Court before the Revolution. In other
words, the General Court was, in the State of
Maryland, precisely what the Court of King'a
Bench was in England. Afterwards, and be-
fore the cession of the District of Columbia to
the United SUtes, county courts were estab-
lished in Maryland corresponding in character
with what are called circuit courts in moat of
the States. These courts pogsessed general In-
riadiction, civil and criminal, in the respective
counties, subjert, however, to the superintend-
' ig power of the General Court; which exer-
cised over them the same sort of jurisdiction
hich the Court of King's Bench exercises over
inferior tribunals. This was the system of ju-
risprudence in Maryland at the time when the
act of Congress adopted the laws of the Stata
For the district; and the power which the Mary-
land courts men possessed, by virtue of those
laws, in relation to the writ of mandamus, are
set forth in the case of Runkle v. Winemiller,
4 Harris &, M'Henry, 44 f). Chief Justiee
Chase, in dellvrrin™ the opinion of the court in
that case, after 'It^scribing the character and
1. — I derive my knowledge of Ihe fact thai th»
lord protrletar; nat In person Id the TrovlDclal
<'aurt tmm a maniixcHiiI fork at mucb Value, by J.
V. L. MMsboR. Esi|u1n-. whose IllKtorr of Mary-
land, from Its tirsi colonization tg the itevalallon.
la welt known to tbs publte.
1IS3
eu^OHi CouiT or TKt Ufitb) Staisi.
^neiplMof thewrit of inandKi>iu*,My«i "The
•St*] Court *of Ktng^a B«neh having a (uper-
faitenifiiis power over interior courU ol juris-
diction, mKy, and of right ought to interfere to
anpplj a remedy, when the orJimirf lorma of
(>roceedtng are inademiate to the atUinment of
lutlce in matters of public concern. 3 Bac.
Abr. 629, G30. The poEition that tbia court
is inveated with aimilar powers ia generally ad-
mitted, and the decisions have InTariably con-
formed to Itt from whence the inference is
plainly dedueible tliat this court may, and of
rlglit ought for the sake of Justice, to Interpose
in a summary way to I'-pply a remedy, where,
for the want of a epeclhj one, there would oth-
erwise be a failure of justice." This case wu
decided in 1709, in the General Court, and it
■hows, most evidently, that the power of issu-
ing tlie writ of mandamus was confined to that
court, and wbb derived from its King's Bench
powers of superintending inferior courts and
juriadictiona In the execution of the law; and
that this power waa not possessed by any otber
court known to the laws of Maryland. And so
well and clearly was this understood to be the
law of the State, that when the General Court
was afterwards abolished by an alteration in
the Constitulion, and county courts estebliabed
aa the highest courts of original jurisdiction, no
one supposed that the prerogative powers of the
General Court were incidental to their general
jurindiction over caa^s at common law, and a
statute waa paaaed in 1806 to confer this juris-
diction upon them. This act deetarea "that the
county courts shall have, use, and exercise, in
their respective counties, all and aingular the
powera, authorities, and jurindictiona which the
General Court, at the time of the abolition
thereof, might or could have exercised in cases
of write of mandamus." The adoption of the
lairs of Maryland, tlierrfore. does not give to
the Circuit Court for the EHstrirt of Columbia,
the power to Issue the writ of niandamua as an
incident to its general jurisdiction over cases at
common law. It has none of what Blackstone
calls the "high and trnnsrendent" jurisdiction
o( the Court of King's Bench in England, and
of the General Court in Maryland. It Is not
Biiperior to all the other courts of the United
Statea of original jurisdiction throughout the
Union 1 it is not authorir.ed to superintend
them, and "keep tliem within the bounds of
th^r authority i" it does not "superintend all
civil corporations" established by the United
States, nor "command magistrates," and other
officers of the United States in every quarter of
the country, "to do what their duty requires
in every case where there ia no other apecifir
remedy." Its jurisdiction ia conflned to the
narrow limita of the district; and the
839*] 'jurisdiction which it derives from the
adoption of the laws of Maryland must be
measured by that of the county courta of the
State, which the court for this district in every
respect rescmhles. These courts had no power
to issue the writ of mandamus at the time when
the laws of Maryland were adopted by Con-
greas; and when the county courta afterwards
became, by the abolition of the General Court,
the highest cotirta of original jurisdiction, still.
by the laws of that State, they could not issiir
tela writ, until the power to do ao waa con-
ferred on them by statute. As this act of Aa-
1194
no part of the lawa adopted by the act of Oaa-
gresa. I cannot, therefore, ace any grmad
whatever for deriving the authority to taane
this writ of mandamna from the Gr«t aartioB
of the act of Congress adopting the lawa of
Maryland aa they then existed.
2. But it ia inaiated that if the power to ta-
me the writa of mandamus is not ineideBtally
grmnted to thia Circuit Court by the flrat sec-
tion of the Act of February 27th, 1B3I, whkA
declares that the court shall have cognis
"all cases in law and equity." It is said that
a case proper for a mandamus is a case at law,
and that the words above mentioned, there-
fore, authorize the Circuit Court to taJce cog-
nizance of it.
The cases of Mintire v. Wood and l.raaBy
V. Sillimau, hereinbefore mentioned, appear to
me to be decisive against this propositio*.
These cases decided that the circuit courts owt
of this district have not the power now in qnea-
tion. It is true that the eleventh section of the
Act of 1789 (eh. EO), which prescribes tbe jm-
risdiction of the circuit courts out of this m-
trict, does not use the very same words that ore
used in the fifth section of tbe act now undtf
consideration. The eleventh section of the Ad
of ITBS declares that the circuit courta shall
have cognizance of "auita of a civil natotc
at common law, or in equity," etc. But tbeat
words, "all suite of a civil nature at commoa
law," mean the same thing «■ the words "afl
cases at law," vrhieh are us^ in the Act of Feb-
ruary E7th, 1801; and Mr. Justice Story, ia
bis commentaries on the Constitution (Abr.,
608, 600). in commenting on the meaning of the
words, "all cases at law and equity," as med
in the Constitution, aaya: "A case, then, in the
sense of this clause of the Constitution, aris^
where aome aubject touching the Constiluliim.
lawa. or treaties of the United States, is sub-
mitted to the courts by a party who asserts hii
rights in the 'form prescribed by law. 1**14
In other worda, a case is a suit in law or equity.
instituted according to the regular course n
judicial proceedings: and when it involve* any
question arising under the Constitution, laws,
or treaties of the United States, it is within the
judicial power confided to the Union." Not.
if a cose at law means the same thing ■■ a suit
at law, and the latter words do not give juris-
diction to the circuit courts out of thia diMrirt
to issue the writ of mondamui to an ofli.vr «l
the general government, how can worda vhkh
are admitted to mean the same thing give the
power to the Circuit Court within thia districts
How can tbe cognizance of "casea at lav." ia
the act of Congress before us, be construed te
confer this jurisdiction, when it baa been set-
tled by two deciaiona of this court that woidi
of the same meaning do not give it to the ethtf
circ<iit courta? We cannot give this eonatrw-
tion to the Act of February 27th. laOI, withoot
giving a judgment inconsistent with the ded-
aions of this court in the two cases above «e»-
tioned; and I cannot agree *ither to onanle
theiie cases, or to give a judgment ineansistMt
with them.
Hut it i( argued that if the Ut aection CFf tie
Pctet* IS.
l&3d
Kenrau. ». Tub t^xiTeo Statis.
A3I
■ct of ConEreai doea not give ttie Circuit Court
this Jurisdiction, &nd if the fith Bectioc does not
^ve it, yet it ma; be derived from theae two
B«t;tionB talcen together. The argumcDt, I un-
deretand, ia this: The General cSurt of Mary-
land poaaeeaed the power to laaue the writ of
mandamuB ia a ease of thia deacriptioD; and in-
asmuch as that eourt poaseaaed this power, the
easea which authorized the parties to demand
It were "caaee at law," by the Uwa of that
f !tate ; and conaequently, the Juriadictton ia
ronferred on the Circuit Court in aimilar caaca,
by the adoption of the lawa of Maryland in the
first section, and the words in the fifth, which
eve the Circuit Court cognizance of "casea at
w."
The fallacy of thIa argument consista in ae-
•uming that the General Court of Marylnnil
had jurisdiction to issue the writ of mandamus,
because it waa "a caae at law" whenever the
party took the proper steps to show himself en-
titled to it. The reverae of thia proposition Is
the true one. A "case at law," aa 1 have already
■hown, meana the same thing as a "suit;" and
the General Court bad authority to issue the
writ of mandamus, not because the proceeding
was a cft.se or suit at law, but because no case
or suit at law would a^ord a remedy to the
party, Thia is the baaia upon which reata the
Eower of the Court of King's Bench in Eng-
Lnd. and upon which rested the power of the
General Coui-t in Maryland before that court
• 39*] was abolished. 'Theae courts, by virtue
of their prerogative powers, interposed "to
■upply a remedy in a summary way," where
no Buit or action known to the law would af-
ford one to the party for the wrong be had sus-
tained. It is not a suit in form or aubatance,
and never has been so conaidered in England
or in Maryland. For if it had Iteen considered
In Maryland aa a suit at law, Chief Juatice
Chase, in the case of Itunkel t. Winemillcr,
hereinbefore referred to, would hardly have put
his decision on the prerogative powers of the
General Court in the manner hereinbefore stat-
ed. Since the statute of the 9th of Anne, au-
thorizing pleadings in proceedings by manda-
mus, it has been held that such a proceeding Ib
tn the nature of an action; and that a writ of
error will lie upon the judgment of the court
awarding a peremptory mandamus. But it
never has been said in any book of authority,
that thia prerogative process is "an action," or
"a suit," or "a case" at law; and never sug-
gested that any court not clothed with the pre-
rogative powers of the King's Bench could is-
sue the process, according to the principles of
the common law, unless the power to do so had
been conferred by statute.
4, But it is ssid that if the jurisdiction exer-
cised in this case by the Grcuit Court for the
District of Columbia cannot be maintained
upon any of the grounds hereinbefore exam-
ined, It may yet be supported on the 3d section
of the Act of February 27, ISOl. This aection,
among other things, provides that thia "Circuit
Court and the judges thereof shall have ail tha
powers by law vested in the circuit courts, and
the judges of the circuit courts of the United
States."^ And It la insisted that as the Act of
February 13. ISOl, was at that time in force,
the powers of this Circuit Court are to be meas-
Bred by that act, although it baa since been r«-
• L. ed.
pealed; that the circuit courts sstabllalicd by
the Act of February 13th, IBOl, did poaseda the
power In question, and consequently that the
Circuit Court for this district now possesses It,
and may lawfully exercise it.
There are two answers to this argument,
either of which are, In my judgment, suSI-
In the flrst plaes, there are no words In the
Act of February 2T, 1801, which refer particu-
larly to the ponera given to the circuit eourta
by the Act of February 13, 1801, aa the rule by
which the powers of the Circuit Court for tbii
district are to be measured. The obvious miva-
ing of the words above quoted la, that the
EowerB of this Circuit Court shall be regulated
y the existing powers of the circuit courts as
generally established, so that the powers of thia
Circuit 'Court would be enlarged or ['AS*
diininished from time to time, as Congress
might enlarge or diminish the powers of the
circuit courts in its general system. And when
the law of February 13, 1801, was afterwards
repealed, and the act of 1TS9 re-enacted, the
powers of this Circuit Court were regulated by
the powers conferred on the circuit courts fay
the last mentioned law. It was the intention of
Congress to establish uniformity in this respect,
and they have used Ian gu ago which, In my
opinion, makes that intention evident. The
Circuit Court for this district cannot, therefore,
refer for its "powers" to the Act of February
19, ISOl, since that act has been repealed.
In the second place, if the powers of the Cir-
cuit Court for the District of Columbia are still
to be regulated by the law which was reposled
as long ago as 1802, yet it will make no differ-
ence in the result of the argument. Much has
been said about the meaning of the words
"powers" and "cogniiance" aa used In these
acta of Congress. These words sre no doubt
generally used in reference to courts of Justice,
as meaning the same thing; and I have fre-
quently so used them in expressing my opinion
in thia case. But it is manifest that tliey are
not so used In the acts of Congress establishing
the Judicial system of the United States, and
that the word "powera" ia employed to denote
the procesa, the means, the modeaof proceeding,
which the courts are authorlced to use In exer-
cising their jurisdiction in the casea specially
enumerated in the law aa committed to their
"cognijMnce." Thus in the Act of I78B (ch. 201,
the nth section specifically enumerates the
esses, or subject matter of which the circuit
courts shall have "cogniiance;" and aubsequent
aections under the name of "powers" describe
the process, the meana which the courts may em-
ploy in exercising their jurisdiction in the cases
speclQed. For example, section 14 givt-s them
tno "power" to Issue the writs "necessary for
the eierciae of their respective jurisdictions;"
and names particularly some of the writs which
they shall have the power" to issue; section
16 gives them the "power" to compel parties
to produce their books, etc.; eectiou IT gives
them the "power" to grsnt new trials, to ad-
minister oaths, to punish contempts, and to
eatablish rules of court. The same distinction
between "powers" snd jurisdiclion or "cogni-
zance" is preserved in the Act of February 13,
1801. The 10th section of thia act gives tbs
circuit courts tiiereby established, all tb* ''pow-
taat
BUPBRME CODBT or THK Uritd BiAm.
•ra" befora VMted In tbe circuit courtB of ths
United StatM, unleBE where otberwise provided
by tha.t law; and the next following section
«8T*] (the 11th) enumerates Epecillcallf 'the
CRMi or controversies of which they shall have
"cognizance." And so also in the Act of Feb-
ruary 27, 1801, eelablishing the Circuit Court
for thJH dietrict, tiie same distinction ia contin-
ued; and ttie 3d aeetion (the one now under
coniideration) gives tha court "ail the powers
by law Tested in the circuit courta;" while the
Sth aeetion enumerates particularly the matters
and controversies of which it shall have "cog-
nizance;" that is to say, over which it shall ex-
ercise jurisdiction, by the means and tbe "pow-
er*" ^ven to it for tliat purpose, by this same
act of Congreas. With these several laws be-
fore UB, in each of which the same tenns have
evidently been always used in tbe same eensE,
it appear* to me impossible to doubt tbe mean-
ing which Congress intended to affix to them.
If they had used tbe word "powers" and the
word "cogniaance," as meaning the same thing,
would they, in the 10th section of the Act of
February 13, 1801, have given jurisdiction in
general terms under the name of "powers" to
the courts thereby eatabliahed, and then have
immediately followed it up with a specification
of the cases of which it should take "cogni-
lance:" and it such an unusual mode of legis-
lation had been adopted in this law from inad-
vertence or mistake, would it have been ad-
hered to and repeated in the Act of February
27, 1S01T It is hardly respectful to the legisla-
tive body for this court to aay so. It ia clear
that the word "powera" must have been con-
stantly used in these laws in the sense I have
already stated; aud if the 3d section of tbe last
mentioned act is to be construed as referring
particularly to the Act of February 13, 1801, it
will not affect the present controversy. For we
find the "powers" of those circuit courts given
by the loth section; and they are there given
by refeiriog as generally to the "poivers" con-
fvrreU on the circuit courts by preceding laws;
so that after all we are still carried back to the
Act of 1780, in order lo learn tlie powera of the
circuit courts estahlished by the Act of Febru-
ary 13, 1801; and consequently we are also to
learn from that law, the "powers" of tbf Cir-
cuit Court for this district. And upon turning
to the Act of 178P, we find there the power
given to the Supreme Court to issue the writ of
mandamus "to persons holding office under the
authority of the United States," but we find no
•uch power given to the circuit courts. On the
contrary, It has been decided, as hereinbefore
■Uted, that under the Act of 1789 they are
not authorized to Issue the process in question.
The 3d section of the Act of February 27, 1801,
will not, tlierefore, sustain the jurisdiction ex-
ercised in this case by the Circuit Court.
A38*j *But the principal effort on the part
of the relators in this branch of the argument
is to give to this third section such a construe'
tion as will confer on this Circuit Court a ju-
risdiction co-extensive with that given to the
circuit court* by the eleventh section of the Act
of February 13, 1801. In other words, they
propose to expound the Act of February 27th
u if this section of the Act of February 13th
WM Inserted in it. The eleventh section of the
■et referred to enumerates and speddes partic-
IIIC
ularly tha caaea of wbkli tlie cimdt i— lU
thereby established had "coeniiance ;** »ai Uh
relators insist that jurisdiction in all the cmia
mentioned in that section, is also conferred cm
the Circuit Court for this district, by rrm3om «(
the provision in the third section of the Act «f
February 27th, above mentioned. And thty
contend that the aforesaid eleventh section gav*
to the circuit courts established by that lav
jurisdiction to issue the writ in queation; aai
that the Circuit Court for this district, thaw-
fore, possesses the same Jurisdiction, even al-
though it Is not ^ven by the fifth section of th«
act eatabliahing it. The object of this argnmcat
is to extend the jurisdiction of this Circuit
Court beyond the limits marked out for it by
the fifth section of the act which created it;
provided the eleventh section of the Act nf Fdt-
niary I3th shall be construed to IwTe gives a
broader jurisdiction.
Now.it appeara to me, that when wo And tlw
eleventh section of the Act of February ISth
enumerating and specifying the casea of which
the circuit courts out of this district abonld
have "cognizance," and the fifth aeetion vl the
Act of February 27th enumerating and aped^-
in^ the cases of which the Circuit Court wiUns
this district should have "cc^nizance," if th«3«
ia found to be any substantial difference in the
jurisdictions thus specified and defined in these
'wo laws; tbe just and natural inferenceistl '
not intend to give to the Circuit Comt for
this district the same jurisdiction that had been
given to the others. This would be the legiti-
mate inference in comparing any laws eatabliah-
ing different courts; and the conclusion ia irre-
sistible in this case, where the two laws vn*
It would be contrary to the
soundest rules for the construction of statute*,
in such a case, to enlarge the jariadicUon id
this Circuit Court beyond the limits of the fifth
section, by resorting to such general woida a*
those contained in tbe third; and to woria,
too, which much more •appropriately [••!•
apply to its process, to its modes of proeeedinfc
and to other "powers" of the court; and whA
necessary connection with tha
. I* authorised to take
"cognizance."
I do not, however, mean to aay that tha
eleventh section of the Act of February IMk
conferred on the circuit courts which tt e*t*^
lished the power to issue the writ of niandavan
in a case like the present one. I think it tf
not,and that a careful analysia of it* provirioM
Act of 17BB, which had oxpreaaly eaeferrad
that power on tbe Supreme Court. But it it
unnecessary to pursue the argument on Ihi*
point, because no just rule of eonstraetioa can
authorize us to engraft tbe provisiona of tfaii
section upon the Act of February 27th, so a* t*
give to the Circuit Court for the Diatriet of
Columbia a wider jurisdiction than that eea-
templated by the filth aeetion of the last Men-
tioned act.
Upon a view of the whole case, thnrefore, I
cannot find the power which tha Cfreuit Ooart
IStt
KXNDALL T. TBK UmTB) BtATK.
like
teriftl
viduale
baa «xard>ed either In the firat section, or the
third »ectioa, or the Rflh sectioDi and it !■ dif-
ficult to believe that CongreM meant to have
given this high prerogative power in lo many
ptacea, and yet, in every one of them, have left
■t, at best, so ambiguous and doubtful. And if
we now sanction its exercise, we shall give to
the court, by remote inferences and implica-
tions, a delicate and important power which I
feel persuaded Congress never intended to in-
trust to iti hands.
Nor do I SEC any reason of policy that should
induce tlua court to infer such an intention on
the part of the Legislature, where the words of
the law evident!; do not require it. It must be
admitted that Congrces have denied bis power
to tbe circuit courts out of this district. Why
■hould it be denied to them, and yet beiatiustf J
to tbe court within thi« district T There aie
officers of the general government in all of the
States, who are required by the laws of the
United States to do acts which are merely
ministerial, and in which the private rights of
individuals are crrj-irncJ. There are collectors
and other officeis of the revenue, who are re-
Suired to do certain minieterial acts, in giving
laarancea to vessels, or in admitting them to
entry or to registry. Tlierc 3ie also re^'istera
:s of the land-ofiices, who are, in
, required by law to do mere minis-
in which the private rights of indi-
involvecl. Is there any reason of
440*} policy that should 'lead us to suppose
that Congress would deny the writ of uaudu-
mufl to those who have such rights in the States,
•nd give it to those who have rights in this dis-
trletr There would be no equal justice in
■ueh legislation, and no good reason of policy
fir convenience can be assigned for such a dis-
tinction.
The case of The Columbian Insurance Com-
pany T. Wheelwright, 7 Wheat. 634, has been
relied on as sanctioning the exercise of the ju-
risdiction in question; and it is said that this
(Miirt, in determinins that a writ of error would
lie from the dpcisinn of the Circuit Court of
this district, a wardin IT a peremptory mandamus,
have impliedly deciileii lliat ihe Ciicuit Court
had jurisdiction to i3^;:c th;! process. I conTn-'s
I cannot see the force of this argument. The
8th section of the Act of February 27, 1801,
provides "that any final judgment, order, or
<lecree, in said Circuit Court, wherein the mat-
ter in dispute, exclusive of costs, shall exceed
the value of one hundred dollars, may be re-ex-
amined, and reversed or affirmed. In the Su-
preme Court of the United States, by writ of
error or appeal, which shall be prosecuted tn
the same manner, under the same regulations,
kud tbe sane proceedings shall be had therein
as ts or shall be provided in the case of writs of
error, or Judgments, or appeals, upon orders or
decrees rendered In the Circuit Court of the
United States." Now, the order for a peremp-
tory mandamus in the case cited, as well as in
tbe one now before the court, was certainly "a
final judgment" of the Circuit Court. It de-
cided that they had jurisdiction to issue the
maadainui, and that the case before them was
a proper one for the exercise of this jurisdiction.
Being the "final judgment" of the Circuit
Court, It waa liable to be re-examined in this
eourt by writ of error; and to be reversed, if
• L. «d.
assuming a jurisdiction which did not belong
to it, or by mistaking the rights of the parties,
if it had Jiurisdiction to issue the mandamus.
In the case of Custis v. The Georgetown and
Alexandria Turnpike Company, 6 Cranch, 233,
the Supreme Court sustained the writ of error,
and reversed the judgment of the Circuit Court
of this district, quashing an inquisition returned
to tbe clerk; and this was done upon the ground
that the Circuit Court had exercised a jurisdic-
tion which did not belong to it. Tliere are a
multitude of cases where this court have enter-
tained a writ of error for the purpose of revers-
ing the judgment of the court below, upon the
ground that the Circuit Court had not jurisdlc-
tioi nf the case, for the 'want of the ['841
pruper averments In relation of the citizenship
of the parties.
It Is certainty error In a circuit court to as-
sume a jurisdiction which has not been con-
ferred on it by law. And it would seem to be a
strange liraitction on the app-liate powers of
this court if it were ris'-.-ciiicii from correcting
the judgment of a circuit court when it com-
mitted tliia error. If such were the case, titen
an error committed by a circuit court in rcliition
to the legal rights of the psrties before it, cnnid
not be examined into and corrected in this court,
if it happened to be associated with the addi-
tional error of having assumed a jurisdiction
which the law had not given. Such, I think,
cannot he the legitimate construction of the
section above quoted. And if the Circuit Court
mistakes its iiiripdiction, either la respect to the
persons, or tbe subject matter, or the process,
or the mode of proceeding, the mistake may be
corrected here by a writ of error from its final
judgment, or by nn appeal in cases of equity or
admiralty jurisdiction. And whether the nn^
judgment is pronounced in a summary or other
proceeding, if it be in a case in which the Cir-
cuit Court had not jurisdiction, its judgment
may be re-rTttinined here, and the error cor-
rected by this court. The decision of thiseourt,
therefore, in the case of The Columbian Insur-
ance Company v. Wheelwright, that a writ of
ui I 3r would lie from the judgment of the Cir-
cuit Court of the District of Columbia, award-
ing a peremptory mandamus, is b? no means a
decision that the court below had jurisdiction
to issne it.
In fine, every view which I have been able to
take of this subject, leads me to conclude that
And,
although I am ready to acknowledge the re-
spect and confidence which is justly due to the
decision of the majority of this court; and airi
fully sensible of the learning and force with
which their Judgment is sustained by the
learned judge who delivered the opinion of the
court, I must yet, for the reasons sbove slated,
dissent from it. I think that the Cirruit Court
had not, by law, the right to issue this manda-
mus, and that the iudgmant they have given
ought to be reversed.
Mr. Justice Baibonrt
In this case, I have no doubt but that Con-
gress have the constitutional power to give \v
tbe federal indlciary, inclu£ng the Circuit
B4I
SurasuE CoDBT at VBK VnTTta Statu.
Court of this diatrtet, ftnthority to iuua the
641*] writ of miimlaniui to the 'PoatniaBter-
Generat. to ronipKl litm to perrorm any mini*-
terii.1 dutj devolved on him b; taw.
1 hftve no doubt that the act which in this
cue WM required to i>e done b; the Poatmaster-
Geii4r>l is lueh an one as might properly be en-
forced by the writ of mandamui, if the Circuit
Court of Ihia diatrlct bad authority by law to
But the question ia whether that court ts io-
veatcd with (hie authority by law. I am of
opinion that it is Dot, and 1 will atate the
rtaaona which have brought me to that con-
clusion.
It was derided by this court in the caaa of
M'lntlre v. Wood, 7 Crnach, 604, upon a cer-
tificate of (liviaion from tha Circuit Court of
Ohio, that that court did not poasees the power
to iaaue a writ of mandamus to the register of
a land-oRice, commanding him to iesue a flnal
certificate of purchase to the plaintiff for cer-
tain lands in the State of Ohio-
The principle of this case was approved, and
the same pomt afiirraed, in the case of M'Cluny
T. Silliroan, 8 Wheat- SOB.
In the views, then, which I am about to pre-
■ent, I shall aet out with the adjudged and ad-
mitted propoaiCton that no other circuit courta
of the United States have power to issue the
writ of mandnmuB. And then the whole ques-
tion is reaolved into the aingle inquiry whether
the Circuit Court of this district haa power to
do that which all admit the other circuit courts
of the United States have not the power to do.
It has been earnestly maintained at the bar
that It haa, becauae, it ia aaid, that it haa by
law a larger scope of Jurisdiction.
To bring this propoaition to the teat of a
close scrutiny, let us compare the preciae terma
in which the juriadii'tion of the circuit courts
of the United States ia granted by the Judiciary
Act of 1780, wilh tlioee which are uaed in the
grant of jurisdiction to the Circuit Court of
this diatrict, by the Act of the 27th February.
IBOl.
The eleventh section of the Judiciary Act of
ITSS, 10 far aa it respects this question, is in
theae words: "That the circuit courta shall
have original cognizance, concurrent with the
courts of the several States of all suita of a
civil nature, at common law or in equity, where
the matter in dispntu exceeds five hundred dol-
lars, and the United States are plaintiffa or
petitioners, or an alien ia a party, or the suit ia
between a citizen of the State where the auit is
brought, and a citizen of another State."
The Bfth section of the Act of the 27tb Feb-
•4S*] ruary, 1801, giving 'juriadiction to the
Circuit Court of this diatrict, ao far aa respects
this queation, ia in theae words: "That aaid
court shall have cognizance of all cases in law
and equity between parties, both or either of
which ahall be resident, or aba 11 be found
within the said diatrict; and also of all actions
or suits of a civil nature, at common law or in
equity, in which the United States shall be
plaintiffa or complainanta."
Having placed theae two sections in Juxta-
position for the purpose of eompariiig them to-
gether, I will now proceed to examine the par-
ticulars, in which It has been attempted to be
maintained that tha grant of Juriadiction to the
ISSS
Circuit Court of this diatrict la more extenatta
than that of the other circuit courta of (h«
United States, ao aa to enable it to reach this
caae, which it is admitted the others eannot do.
In the first place, we have been told, that ia
the grant of juriadiction to the other circuit
courta, by the eleventh section of the Judiciary
Act of 1789, the worda "concurrent with th«
courts of the aeveral States" are found; whi^
worda are not contained in the fifth section of
the Aet of the STth February, 1601, giving
jurisdiction to the Ciriiiirt Court of this district.
It is argued that theau ivorda are rcstriL-tive in
their operation, and limit the juriadiction of
thoae courta to those casea only of whirh tl>*
itate courta could take cognizance at tins lima
the Judiciary Act of 1783 was passed. Tiiat
as the ordinary juriadiction of (he State courta
did not then extend to cases ariain-^ und^r ilia
Constitution and laws of the United States,
therefore the jurisdiction of the circuit courts
given by the eleventh section of that an did
not extend to thoae cases, because it wu de-
clared to be concurrent, and consequently only
co-eitenaive.
This poaition ia, in my eatima^ion, «-faolir
indefenuble. I think it a proposition capable
of the elearcst proof that the insertion of tha
words "concurrent with the courts of the sev-
eral States," was not intended to produce, and
doea not produce, any limitation or reslHction
whataoever upon the jiu-i edict ion of t^e cir-
cuit courts of the United Slaies.
No such consequence could follow, for ihta
obvious reason, that the State courts cou'id
themaetves rightfully taice cognizance of ^ny
question whatever which arose in a caae L?forc
them, whether growing out of the CooatitutKin,
lawa, or treaties of the United States; or. as
ia said in the eighty-aecond auinber of rbe
Federaliat, ariaing under the lawa li Japan.
The principle ia, as laid down in the nnmbej
•of The Federalist just referred to. i»a44
"that the Judiciary power of every govum-
ment looks beyond its own local or muni ipal
laws, and in civil cases lays hold of all aubji-iu
of litigation between parties within ita jtirisdie-
lion, though the caiiaea of dispute are relativf
lo the laws of the most distant part of tha
globe." In conformity with this prinHple. it
IS said by this court (1 Wheatoii,340).apeakiM
of the State courts: "From the vpry nature of
their judicial duties, they would be called upoa
to pronounce the law applif'able to tlir rase in
judgment. Thi'y were not to decide merely
according to the laws or conRlitiition of '^
State, but according to the Constitution. Uvs.
and treatips of the Unileil Siati's. the m'pr.iiM
law of the land." And in the same <>a«p. after
putting cases illustrative of the proptii^lioa,
and a course of reasoning upon them. Ihty
conclude by aaying, "It muat therefore be coa-
crded that the Constitution not only contm-
plated, but meant to provide for caiea witlaa
the scope of the judicial power of the United
States, which mipht yet depend Iwfdre suta
tribiinala. It was foreseen that in the exf-rriH '
of their ordinary juriadiction, State eoiirti
would incidentally take cognizance of cases an*
ing under the Constitution, the laws, and tna-
ties of the United States." I
From these quotations, it is apparent that *• j
restriction can have bean imposed opna Iks
P«tN« It.
EXRDAIX T. Tbb UnitD SfATSt.
s;
iurUdiirtlaD of tba rircuit courti of the United
Itatpi b7 words which mftke it concurrent wilh
that of tbe courts of the StatM; when it I* ad-
mitted that there la no queation which can
aiiae before them, tn a civil caje> which they
are not competent. Bad, indeed, bound to da-
dde, according to tbe lawa applicable to the
qvaatioo, whether they be tbe Conatitution,
bwa and treatiea of the United States, the
Isws of Japan, or anv other foreign eonntrj on
Um face of the earth.
The same number of The Federalist already
referred to fumiihes the obrioua reason why
tbeaa words were inserted. It ia there said,
that amongat other queationa which had arisen
in relation to the Conatitution, one was
whether tbe Jorisdictfon of the federal courts
was to be exctueive, or vhether the State
courta would poeaeas a concurrent juriadiotionl
Tbe author reaBona upon the subject; quotea
tbe terms in which the Judidal power of the
United SUtea ia veated by the Conatitution ;
■tatee that these terms might be constmed as
imDorUng one or the other of two different slg-
nlncationa, and then concludes thus; "The first
«xeludes, the last admita, the coneurrent Jnrli
diction of the State tribunala, and aa the firat
•45*1 would 'amount to an alienation of State
by implication, tbe last appears to me
at defensible construction." The reason,
then, why these worda were inaerted In the
derentb section of tbe Judiciary Act, was to
remOTe the doubt here expressed, to obTlate all
difficulty upon the queation whether the (Rant
of jndidal power to the federal courts, wi&out
■a^ng more, might not posaibly be construed
to exdude the jurisdiction of the State courts.
Its sole object was, aa ia aometimea said ia the
law iMMka, to exclude a eonelualon.
Congrasa cannot, Indeed, confer }urladietIon
upon any eourta but such aa exist under the
Constitution and laws of the United SUtea, as
Is said in Houston v. Moore, G Wheat 27, al-
though it is said In the same caae, the 8tat«
conrU may exerdaa juriadictton on cases au-
thorized by the lawa of the State, and not pro-
hibited by tbe exclusiTe jurisdiction of the
federal courta. This, howerer. Is not because
they hare had, or can have any portion of the
Inwcial power of the United States, as such,
Imparted to them; but because, by reason of
tbelr original, rightful judicial power, as State
courta, they are competent to aedde all ques-
Uona growing out of all laws which arise before
them; and accordingly, the framera of the Ju-
diciary Act, proceeding on the idea that quea-
tiona arising under the Conatitution, laws and
treaties of the United States, might and would
be presented and decided In the State eourta.
Inserted the 26th section, by which those
caon, under certain drcumatancea, might be
brought hy writ of error or appeal to this
The difference In the phraaeologr of the two
sections has been adverted to. It has been said
that the words in the 11th section of the Judi-
ciary Act of ITSS are all suits of a eifil nature,
at oommon law, or in equity; and those tn the
fith section of the Act of IBOl, glrlng jurisdic-
tion to the Circuit Court of tUs district, are
"all eaaes In law and equity." Now, It is im-
poaaible to maintain that there Is any difference
la legal affeot betwesa thwe two modes of az-
f kcd. IB
presdon. What Is a caae fai law or eqnltjT I
give the anawer In tbe language of the lat*
Chief Justice of this court: "To come within
thja deecriptlon, a queation must assume a legal
form, for forensic litigation, and judicial deci-
aiou." And what ie a suit I I give the anawer
alao in the language of the late Chief Justice,
who, in 8d Peters, 4H, says, in delivering the
opinion of tbe court, "if a right Is litigated
between parties in a court of Justice, the pro-
ceeding hy which the deeiilon of tbe court is
sought, is a auit." It la, then, nnqueationably
true that the court, which has Juriadictton over
all 'suits in law and equity, has as much ['•4f
judicial power by those terms as a court has by
the terms, "all caaea In law and equity." Th»
only difference between the two aectlona nnder
eonal deration. In relation to the queation before
ua, eonaiata In the two limitations contained in
the lltb section of the Judiciary Aot; the one
aa to the character of the partiei, the other aa
to tba value of the matter in dispute.
When, therefore, we auppoae a caae In which
the plaintiff and defendant are dtlccns of dif-
ferent Statea (the one being a citiaen of the
State where the suit is brought), and In which
the value of the matter In dispute Is five hun-
dred dollars; with these parties, and a subject
matter of this value, all the circuit courts of
the United SUtes can Uke cogniianee of It,
whether It shall have arisen under the Oonstl-
tution, laws, or treaties of the United Statea,
the laws of a State, or of any foreign eountry,
having application to the case. Whenever,
therefore, it la said that those courta cMinot
take eognizanoe of cases In law and equity
arising under the Conatitution, lawa, or treaties
□f the United States, It ia only meant to aay
that they cannot do It on account of the char-
acter of the questions to be decided, unleaa the
parties and the value of the subj<^ matter
come within the description of the 11th section;
but when they do there cannot be a poadble
doubt And this will explain tbe case of a
patentee of an Invention, referred to In the
ailment, to whom a right to Institute a ault
in the circuit courts has been given by speoial
legislation. The only affect of that is, that
auch a patentee can sue In tbe circuit courts,
on account of the character of the ease, with-
out regard to tbe character of the party, as to
eitlienahlp, or the value of the matter In dla-
Eute; whereas, without aucb apecial legislation,
e could have aued in the circuit courts, if his
deacription of the 11th section of the Judidary
Act. In the case of M'Cluny v. SlUiraan,
however, this difficulty did not exist; for it is
distinctly atated in that case (page 601) that
the parties to that controversy were competent
to sue nnder the 11th section, being dtixenl of
different States; and yet this court refsn to
and adopts the response which they hadtdven
to the queation stated in Hlntire v. Wood,
which answer was In theae words: "That the
CSrcnit Court did not poaaeaa the power to !••
sue the mandamus moved for."
It baa been attempted to be maintained In the
argument that the Circuit Court of this diatrlct
baa a more eztendve Juriadletion than the other
■circuit eourta of the United SUtea, l*%*1
the following oonrse of raasoningi We have
414*
HT
Bnruciu Comr or thk Uniiw Statsb.
been referred to the third Mction at the Act of
tbc 27th or Febnurr, 1801, eatablishiii^ the
Circuit Court of this district, which tection i*
in these words: 'The said court, ftnd the
judges thereof, shall bkve all the powers by
law vested in the circuit courts, and the judges
of the circuit courts of the United States. It is
then assumed in the argument that the powers
of the court and its jurisdiction are the same
thing; it is also asBumed that the third section
has reference not to the powers of the circuit
courts of the United States and their judged, aa
the^ thai) be from time to time modiSed by
legislation, but to those which were estab-
lished hy the Act of the 13tb February, 1801,
entitled "An Act to provide for the more con-
Tenient organization of the courts of the Unit-
ed States," which, though since repealed, was
Csed fourteen days before the act establish-
_ the Circuit Court of this district, and was
in^force at the date of the passage of this lat'
ter act.
We are then referred to the eleventh section
of the Act of the 13th of February, 1801, by
which jurisdiction ie given to the circuit courts
thereby established over "all cases in law or
Suity, arising under the Constitution and laws
the United States, and treaties made, or
which shall be made under their authority,"
Even conceding, for the present, all these aa-
sumptiona in favor of the argumeut, it wholly
fails to sustain the position contended for. To
prove this, I need only refer to my previous
reasoning in this case, by which 1 have shown
that under the eleventh section of the Judiciary
Aot of ITSe, the circuit courts had as ample
jurisdiction in all casps arising under the Con-
stitution, laws and treaties of the United States,
as is given them by the section now unilcr con-
sideration; subject only to the two limitations
•s to parties, and value of the matter in dis-
Sute. So that beyond all question, the only
ifference is, that by the section now under con-
sideration, the circuit courts could take cogni-
zance on account of the charHcter of the case, no
matter who were the parties, or what the value
in dispute; whereas, by the eleventh section of
the Judiciary Act, they could take cognizance
of the same questions, provided the parties
were, for example, citizens of different States,
and the matter in dispute was of the value of
five hundred dollars. And yet, as I have
already stated, in M'Cluny v. SiliJman, in
which the parties corresponded to the require-
ments of the law, and there was no qneslion
raised as to the value of the matter in diapute,
this court re-affirmed the proposition that the
648'] 'circuit courts of the United States did
not possess the power to issue the writ of man-
damus. But let us briefly examine one of the
asBumptioni which I have, argumenti gratia,
conceded, for the purpose of giving the fullest
force to the argument founded on it; I mean
that which takes for granted that the powers
and the jurisdiction of the court are the same
thinr. I any nothing of the other assumption,
simply because it is wholly immaterial to the
view which I take. Are the powers and juris-
diction of the court equivalent! Whatever
may be the meaning of these terms in the ab-
stract, they are clearly used as of essentially
different import in the acts of Congress; and
this d)ff«renc« will, in my opinion, go far to
show the error in the ooneltifions drawn fravi
the assumption that they are of equivalent ia
port. There are several reasons which am.
clusively prove that they were used in different
senses by Congress- In the first place, aw well
in the Act of 1789, eflt«blishing the cirevit
courts of the United States, and the Act of
the 13tb February, 1801, re-organiziDg Ihein, a*
in the Act of the UTth February, lBOi,esLAbliili
ing the Circuit Court of this district; the juris.
dii:tion of the court is deBned in one aection.
and its powers are declared in another. Now.
it is an obvious remark that if powers and
jurisdiction were considered as equivalent, here
was mere useless tautology. For, upon this
hypothesis, the grant of powers carried with il
jurisdiction, and, e converse, the grant of jurii
diction carried with it powers.
In the next place, we not only find that in some
sections the lerm "cognisance," or "jurisdic-
tion" (which are synonymous) is uaed. whi.i^t
in othera the term "power"iBmRdeuBF->f ; but
in the very aame section, that is, the thirteenth,
in relation to the Supreme Court, both tcmt
are used thus: "The Supreme Court shall hare
exclusive jurisdiction of all controversies of a
civil nature where a State is a party, except."
etc.; and in the same section, "and sliall haie
power to issue writs of prohibition to IIm dis-
trict courts," etc.
Again: The Act of 1789, after defining the
jurisdiction of the different courts in different
sections, viz., that of the district courts in tbe
ninth, that of the Circuit Court in the eleventh,
and that of the Supreme Court in the thirteenth.
together with the power to issue writs of pro-
hibition and mandamus, proceeds in subsrquMit
sections to give certain powers to all the couru
of the United States. Thus, in the fourti^enth,
to issue writs of scire facias, habtaa corpus,
etc.; in the fifteenth, to require the produi.ion
of books and writings; tn the ITth, to gran!
new trials, to administer oaths, punish con
tempts, 'etc. It is thus apparent that ['64f
Congress used the terms "jurisdiction," and
"powers," as being of different import. The
sections giving jurisdiction describe the subject
matter, and the parties of which (he courts may
take cognirnnce; the sections giving powers,
import authority to issue certain writs, and do
certain acta incidentally becoming necessary
in, and being auxiliory to, the exercise of their
jurisdiction. In ref;ard to allthe powersin the
fifteenth and seventeenth sections, this is appar-
ent beyond all doubt, as every power given in
bath those sections neci-s^arily presupposes I hs!
it is to be exercised in a suit actually befon
them, except the last En the sev^'nterntb sk
tion, and tiiat is clearly an incidental one, ii
being a power "to make and establish all nrr
csiinry rules for the orderly conducting biuj
ness in the said courts," etc. And this bring--
me directly to the fourteenth section, undrr
wliich it was contended, in the case of M'Cluny
v. Silliman, that the circuit courts rould issnt
writs of mandamus. That section is in thnc
words: "That all the before mentioned courti
of the United States shall have power to usm
writs of scire facias, habeas corpu)', and alt othff
writs, not specially provided (or by statute,
which may he necessary for the exercise <f
their respcL'tive jurisdirtions, and agreeable to
the principles t.nd usages of law." As tk
P«t«ra It'
1838
KxNDALL V. Tm UmitBi States.
writ of mandanius ii not RpEciatlj provided
for by law, extppt in the rene of the Supreme
Court, it is obvious that to enable any circuit
court to issue it, it must be shown to be necea-
aary to the e^prdse of ita jurisdiction. It is
argued hen-, as it whs in the ease of M'Ctuny
V, SfUimau, that ■ mandamus is proper where
there is no other specific legal remedy ; and that
therefore, In such a rase, it is necessary to the
exercise of the jurisdiction of the court, &nd
BO within the words of the statute. But what
was the answer of the court in that easel
Amongst other things, they said: "It cannot
be denied that the exercise of this power is
necessary to the ex^reise of jurisdiction in the
court below. But why is it necessary? Not
because that court poasesaes jurisdiction, but
because it does not possesa it." Again they
■aid I "The fourteenth section of the act under
consideration could only have been intended to
vest the power now contended for in cases
where the jurisdiction already exists, and not
where it is to be courted or acquired by means
of the writ proposed to be sued out. Such was
the case brought up from Louioiana, in whicli
the judge refused to proceed to judgment, by
which act the plaintiff must have lost his
remedy below, and this court have been de-
prived of its spp^liate control over the question
«50'] 'of riyht." Ai this answer was con-
Bidered conclusive in the case referred to, it
would be tufTicient for me to stop hero, with
giving the same answer. But let us pursue the
subject a little further. The proposition which
I maintain is, that this section did not contem-
plate any original writ, hut only those which
are incidental and auxiliary. That it did not
contemplate any writ as original process is ap-
parent from this consideration; that by an act
passed at the same session, and within Qve days
thereafter, entitled an act to regulate pToeesses
in the courts of the United States, the forms of
writ! and exeiutions, except tlieir style and
modes ol process then used in the supreme
courts of the States, were adopted.
But it seems to me that there is an argument
to be derived from the nature end character of
the writ of mandamus, and the legislation of
Congress in relation to it, which is, of itself,
decisive against the power of the Circuit Court
to issue it. It is declared by all the English
Mlthorities, from which in general our legal
principles are drawn, to be a high prerogative
formerly actually sit in person; and in which,
In contemplation of law, by his judges, he is
•till supposed to eit. It never issues bat to
command the performance of some public duty.
Upon this principle (5 Earn. 4 Aid. 899). the
Court of King's Bench refused a mandamus
daring that it was confined to eases ofapublic
nature, and that although the company was in-
corporated by a royal charter, ft was a mere
rivate partnership. Upon the aame principle,
believe that it may be affirmed, without ex-
ception, unless where a statutory provision has
been made, that in every State of the Union
where the common law prevails, this writ issues
only from the court possessing the highest orig-
inal common law jurisdiction. The Congress
F L. ed.
of the United States adopted the same prind-
ple, and by the thirteenth section of the Ju-
diciary Act of 17H1), gave to the Supreme Court
of the United States power in express temu
to issue writs of mandamus, "in cases warrant-
ed by tlie principles and usages of law, to any
courts appointed, or persons holding office un-
der the authority of the United States," thua
covering the whole ground of this high prerog-
ative writ. If, then, there ever were a case fn
which the maxim tiiat expressio unius, est exclu-
sio alteriua, applied, this seems to me to be em-
phatically that case. It is of the nature of the
writ to be issued by the highest court of the gor-
emment; the 'Supreme Court is the [*8&1
highest ; and accordingly, to that court the pow-
er to issue it is given. It is given in expresa
words to that court, and is not given in terms
to any other court. It is given to that court in
express terms in the thirteenth lectjon; and al-
though not ^veo In terms in the fourteenth sec-
tion, immediately followin|:, the power to iasne
it is attempted to be derived, by implication,
from that section. And last, l>ut not least,
where It is given, it is subject to no limitation,
but that it is to issue "In cases warranted by the
principles end uoages of law," and may be is-
sued to any eourta appointed by, or persons
holding office under the authority of the Unit-
ed States:" Whereas, in the fourteenth section,
all the courts of the United States are empowered
to issue certain writs, naming them, and then
others, not naming them; and not mentioning
the writ of mandamus, which may be necessary
for the exercise of their respective jurisdictions.
Nor is the force of this argument at aJl weak-
ened by the circumstance that this court, in
the case of Marbury v, Madison, 1 Cranch, 137,
declared that part of the Judiciary Act, which
empowered the Supreme Court to issue the writ
of mandamus to be unconatltutional, so far aa
it operated aa an act of original jurisdiction.
Because this case was decided nearly fourteen
years after the law was passed, and we must
construe the act as if it were all constitutional,
because Congreia certainly so considered it; and
we are now inquiring into what was their In-
tention, in its various provisions, which can
only be known by construing the act as a whole,
embracing its several parts, of which the powei
in question was one. But if the other circuit
courts of the United States under the powere
give to them cannot, as has been decided by this
court, issue the writof mandamus, then the Cir-
cuit Court of this district rannot do it, under the
poiver
B poffi
i the
same with those of the others. For, by the third
seetionof the act establishing it,it and its judges
are declared to have all the powen by law vest-
ed in the circuit courts and the jut^ea of the
circuit courts of the United States; and even
supposing that to refer to the powers of tha
circuit courts, as organised by the Act of 1801,
that doea not vary them; because, by the tenth
section of that act, those courts are invested
with all the powers heretofore granted by law
to the circuit courts of the United States; that
is, those by ths .ludtciary Act, unless where
otherwise provided by that act; and there is no
pretense that there is any power ^ven Id that
act. which affects this question. If, then, the
jurisdiction and the powers of the Circuit Court
of thU 'district are the same with the ['tht
Itll
SuTKKiu Ctam tr tub UnintD SxAn*.
fttriadiction and powan of the other drenlt
eourt« of tbe United fiUUij ud if, as hu been
•olemnl; decided bj this court, that jurisilie-
Uon and those powen do not authariie tbe
other circuit courts to iHue the writ of m«n-
dunui, it would Mem to follow, a* ao inevi-
table coneeauence, that neither can the Cirouit
Court of UJ* dietrict iwue that writ.
Finallj, it was areued that if all the other
(ouTcei of power failed, therelsaaufficieat one
to be found in that section of tbe Act ol 1801
eatablishing tbe Circuit Court of this district,
by which it is enacted that the laws of Marj-
land as thej now exist, shall be, and continue
in force in that part of the district which was
eeded bj that SUte to the United SUtea, etc.
The argument founded upon this section is in
auIiBtance thisi The laws of Maryland are de-
elared to be in force in this part of the district;
the common law of England constitutes a part
of those laws; by the common law, in such a
ease as this, a writ of mandamus would lie;
therefore, the Circuit Court of thia district can
issue a mandamus in this case. This part of
the argument proceeds upon the principM that
the adoption of the common law, per se.author-
icea the iuuing of tbe writ. But, it must lie re-
membered that the adaption of the common law
here cannot give any greater power than the
same common law would give to the courts of
HaryUnd, from which State It ia adopted.
Now, in M'Cluny v. Silliman, It was decided
that a State court could not issue a mandamus
to an officer of tbe United State*; consequently,
it follows that no court in Maryland could hare
isaiied the writ in this ease; and yet the
ment which I am now oonsidering seelca to
tain the position that whilst it is conceded that
a Maryland court, with the common law In full
force there, could not have Issued thla writ, the
Cirouit Court of this district baa the authority
to do so, by reaaon of the adoption of that very
law wbioh would not give the authority to do
it there.
e that to state this propo-
That tbe citiiena of that part of this district,
which formerly belonged to Maryland, shoidd,
notwithstanding the cession, continue to enjoy
the benefit of the same laws to which they had
lieen aceustoiaed, and that, in the admlnutnt-
tion of justice in their courts, there should be
tbe same rules of decision; thus plaoing the dt-
tfens of this district substantially in the aame
aituation, in this raspeet, as the eitiaens of the
several States, with this difference only— that
• 68*] 'whilst ia the SUtes there are federal
and State eourta, in the one or tbe other of
which justice ia administered according to the
character of the parties andothercircumstancea ;
in this district, by its judicial organization, the
aame justice which in the States is administered
by the two claasea of courts, is here dispenaed
by the instrumentality of one court, via , the
Circuit Court of this district. But that, aa in
the SUtes, the federal areuit Court oannot ia-
ana the writ of mandamua, because the juris-
diction and powers given to tbam by Congress
do not authoriee it; so here, tbe Qrcnit Court
of thia district cannot Isane it, by virtue of the
uiiadietiOB and powers (trad to it b; Congreaa
(axcluaively of tbe adoption of the laws ot Umtf*
land), because, exclusively of those laws, ita
jurisdiction and powers, as I think I ben
shown, are neither more nor less, in refer^Ms ta
this subject, thsn those of the other i jiiaill
court* of the United States. And aa la the
Statea, the State eourta cannot issue it, althoo^
the common law is in force there; aotheCSreot
Court of thie district cannot issue it, altbo«(h
the common law, by theadoptionof thelaw*s<
Maryland, is in force here; it bring, in my opia-
ion, impassible to maintain ttie propoeitioa
that the adoption of the common law ber^
can impart a greater authority than it doea t»
the courts of the very State from which it waa
adopted.
llie result of that adoption, as it regards tkia
question, may, sa it seems to me, be summed na
ia thia one conclusion: That, aa in Harylaaa
the common law is in full force which anthar-
iM* the writ of mandamus, aud yet a Maryla>A
court can only issue it to a Maryland offiaar,
and not loan officer of the United Statea.ao here,
tbe same common law, upon the same ^ind-
ples, would autboHu tbe Circuit Court of tlUa
district to issue the writ to an officer of the
District of Coiumbia, the duties of whose ottc*
pertained to the local concerns of the diatiic^
but not to an officer of the United Statea.
Under every aspect in which I have viewed
the qiieation, I feel a thorough conviction tbat
the Circuit Court of this district had not power
to issue the writ in question ; and, consequeDtly,
I am of opinion that the judgment demanding
a peremptory mandamua ahouid be raTiead.
*THE UNITED STATES, Appellanta, [*M«
JOSEPH DBLESFING'S HEIRS,
Secondary evidence — translation.
iBiI bfen piuduced
nl.' snt1sr*rior7 pre^
urt [bat tbe orlalBal
existence or tbe orlclnal iMper, l<
APPEAL from the Superior Oourt «( bit
Florida.
The ban of Joaeph Deleapine, and otbia*^
purchasers from Joseph Uelespine, Aled a pe-
tition to the Supreme Court of East Florid^
['raying eonfirmation of a grant to Joaeph Da-
eapine, made by Don Jose Coppinger, o» tlia
gth day of April, 1817; be being tken tke
Spanish Oovsrnor of fiaat Florida. The grwi
1838
Thc Statb w RaoDE Isukb t. Thi Siate oi UiaaACBVtxm,
^rsa (or forty-three thousand bctm, under which
■urvfiya were m^de bj George J. F. Clarke,
then BurvEjor of the proTince, according to
the tenna ol the grant.
The petitioners exhibited, In support of their
claim, the original tnuLslatlon, certified by
Frsncia J. Faeio. of the certiSed copy by
Thomaa de Aguilar, the government lecretary
of the province, which wiu brought into court
by tb« keeper of the public archives of East
Florida. Evidence was given that the original
frant by Governor Coppinger had not oeen
ound among the archives, or anywhere. It
ivBa also in evidence that a copy of the memo-
rial of Joseph Delcipine, and of the concesHion
thereupon, for the forty -three thousand acree
of land, purporting to have been certilied by
Thomas de Aguilar, as secretary of thc govern-
ment, waa exhibited to the board of land ctaima
of East Florida, which waa, before the board,
proved to have been in the handwriting of the
government secretary, and signed by him. Tbir
document had been mislaid or lost.
The Superior Court of Eaat Florida gave i
decree in favor of the petitioners, and the
United States prosecuted tnis appeal.
• 35'] 'Mr. Butler, the Attorney-General of
the Uuited States, informed the court that on
an examination of the record, he found nothing
in the case to distinguish it from those which
had been already decided in favor of claimants
under Spanish granta, unleaa the court should
consider the circumstances of the original grant
bj Governor Coppinger not having been Touni
in the arcliives of Florida, as rendering the evi-
dence of the grant insufficient.
The grant should have been found filed with
similar papers in the proper ofiSc', but there it
was not. It is admitted that the papers of the
o£Sce ar« in disorder! and evidence was given
in the Superior Court of Florida which showed
that negligence in the preservation of the pa-
pers frequently prevailed there. But the certi-
fied copy of the grant was not produced, it
also had been lost; and the only evidence ex-
hiluted to the court, was a certified translation
of a copy of the grant.
It is admitted that when a grant of land Is
made, the original la retained, and a cop^ only
Is furnished to the grantee; but the original is
filed in the proper office. There no original
can be found. The case must stand before the
court as if the certified copy of the grant had
been produced, for its loss ia accounted for;
but the ouetilion whioh this court have to de-
cide, is whether the grantees ought not to prove
the originnl to be in existence. Cited, Mitchell
V. The United States, 9 Peters, T31i Owens t.
Hull. S Peters, 621.
Hr. Justlc« Wayne delivered the opinion of
ths court:
In this case, it Is conceded by the Attorney-
General that the only ground upon which it
can be taken out of the decisions of this court,
confirming the decrees of the courts of Flori-
da, upon grants and concessions of land made
hj the authorities of the ICing of Spain to his
subjects before the 24th January, ISlfi, waa,
that the Superior Court of £ast Florida, In ad-
judicating upon thia claim, received aa evidence
ths copy of a eopf vf • eoneeaaioa or pant to
» IbML
Joseph Delesplne. Wg think the copy. In tUs
Instance, waa properly received by the court.
The first copy waa made from the original, filed
In the proper vfUce, from which the original
could not be removed for any purpose. That
copy, it ia admitted, would have been evidence
in the cause. It la shown, by the affidavit of
Mr. Dryadale, to have been lost whilst the claim
waa under examination by the board of com-
misaionera established by Congreas for ascer-
taining land claims in Florida; and that the
copy received as evidence in a translation of the
'first, certified by the aeeretarj of the [*8&S
board of land commiaaionera, whose duty it
was to translate Spanish documents given in
evidence before the board of land commission-
ers, and is a part of the papers in this claim,
transferred, according to law, to thc keeper of
the public archives of Kast Florida. And it
appears, also, by proofs in this cause, that tbo
papers in the office from which the firat copy
was taken, and the original of which is aUo
Bufflciently proved to have been on file, have
been, by accident or otherwise, mutilated, since
the first copy was taken ; that the original could
no longer be found; and, consequently, that
the copy in this caw was the best evidence,
from tne nature of the case, which could be
given of the existence of an original paper lost
or destroyed.
The decree of the Superior Court of East
Florida waa oon firmed.
This cause came on to be heard on the tran-
script of the record from the Superior Court
for the District of Eaat Florida, and was ar-
gued by counsel; on consideration whereof, it
is now here decreed and ordered by this court
that the decree of the said Superior Court Ik
this cause be, and the lame U hereby «~
Constitutional law — Jnrisdletlon — eontroven j
between States as to boundaries — States can-
not annul judgments of federal eourta.
The Supreme Court bas larlsdletlon of ■ bit) flied
atbs StHte a( Kbode Island sgalnst the Suie at
LHieliusetti, to asceftalD and estsbllsb the north-
ern bouDilBr; between the States, that the rights
of ■overrlgiitT Bnd Jnrlsdlctlan be restored aad
coDOrmed to the plaiuturs: atid tfaer be quieted In
the eli]07inent thereof, and ttielr title, and toi other
and further relief.
Jurisdiction la the power to hear and determine
the subject matter In controvers; between parties
to a suit; to adjudicate or iierclse anj Judicial
An objection to Jurisdiction, on tbe sroand of
exemption from ttit process of the court In whick
tbe suit li broucbt. or tbe manner In wbleb a de-
tendant Is brougtit into It, Is waived by appearance
and pleading to Issne : bot wben the abjection goes
Non. — Aa to Judicial aettlement af atata bomid-
arles. see not* t« U I. ed. U. S. 798.
TS aas«
Sopuau CouBT or tbx Ukiibd Staicb.
ortelii*] inrlgdlclloa. Ita action nnrt b« Msflnc
to the partlcuMr £■■«■. coDtrofeislea. and parttti
onr wblch tbe CoaitltutloD and lav> bavf aiitbai
la objected by a tinrC]', or <a apparent to tbe four
It must aurceuse Ita acIloD, or proceed eitrsjud
dallj.
Tba leTtni] States ol tbe nolted flliitea. In tbel
blgbect aoverflgn capacity, Id tbe convention c
tbe people thereof, on wfaam, b; the revolutloi
tbe pcecogatlTc or tbe crown end the tranacendes
power et rnrllamcnt devolved, In a pleotltude uc
Impaired by toy net. and cDntrollable by no at
rhorlty. adapted tba Constitution, by which tbe
respectively made to th- ■'-■■-•■ "■ ■■ -
]iid
e Btst.
. tstca. By the ConilltutlOD, It was ortia
tbat tbia JlldldHi iioner, in caaes where a State
a party, ataanlil be eierclacd bj tbe Supreme C
aa one of orlglnnl lurledlctlon. The States ne
their exemptlOD from Judicial power, aa aovert
bj orlElnal nnd labprent rlgbt, by their own g
of Its cjcrciae over IbemBclvea In such caiea ;
irecutlnB
n the c(
r tbe parties In tbia couse, by tbelv own
1 deletjBted authority, as tbelr agent tor
be Judicial noner of tbe United States
■" -' MassHchutieila ba> appeared.
mitled to . , ._„. _
ty, and pleaded In liar of the plalDtlS's
lain matters on which the JudemenI oC
asked. All doubts aa to JurlsdktlOD ov
tlea are tbus at rest, aa well by the ftra
by the people, as the submlssioD of the
Ita ]ur
plea
ited by tbe Mil,
Dundary eatabliabed and Hied by compact
nntlons becomea conelualTf upon all tbe
and citizens thereof, and blnda their
nd la to [» created, to all Intents and pur-
Of such compact
la
i
dlcli
question.
There can be b
nals under the Conatl-
tntlon who
the'
joundariea ot States—
the leglBlat
J
diclxl DOwer: the farmer Is
limited. In
where a co
rcenii
nt la referred to tbctn
b; the Bta
nd
'*°*er''f, ht
•1
nnot'
ffi'"" •"""'"'"'•
""rhlB cou
t iiUta by
■ct (trant from the peo-
pie of their Judicial po» .. . ,
BUthorlt]', aa their agent, aelected by themai-lves,
tor tbe purposei apeclSed. The people of tbe
Statea. ag tbey respectively become partlea to tbe
Constitution, gave to tbe Judicial power af Ibe
Doited StateB Jurisdiction over Ihemsclvea, eou-
troverales between Rtotea, between cltliena of tbe
same or dlfrerenl Slalea. claiming lands under their
eocBlctlng grants, within disputed territory.
No court acts dlffeccDtly Id deciding on bound-
ary between States than on Unca between aepar-
the t
of Interlocking gra.ntB. the obllti
rks, the Intermliln^ ot posaesslon under di
proprletora, the effects of accliJent. fraud, (
*r other kindred " ■- -
priate to equity. An lasue at
commission of bouodsry awardcu ; ui,
are aaHsBed without either, they deci
where the bonndarr of a farm. ■ mat
or a State, la and aball ba.
There is neither tbe authority of li
for tbe poiltlOD tbU toai>darr batwM
1184
se appro
recteJ, i
Statea la. Id tti natnn. any mora a pollllad tM«-
tlon than any other subject on which ttaef ■>;
contend. Nona can be settled without war «
treaty which Is by political power : but under Ott
old and new confederscy. they could and can he
settled by a court conatltiiit-d by themselTi* u
their own subatllotes, authorized to do thmt ts«
States, which Statea alone could do before.
It has been contended Ihat this coart cannot pro-
> wltbout some procesa nod ral*
of dec If
crlbed a
leaded, which plea In Itaelf make*
appeared am
the flrVl point m mc taucr. Tiiiuuui aiij niiui
Eroceedlng: that la. whether the plea. bIibII I
iwed it sulBclent Id law. to bar ue complab
V. |jjj_ ^ „£,( [^ing , bar |„ i,^_ (j
. . mme that any State wklefe
holds prerogative rights for the good of Iia cIiIuhl
and by the Constllutton baa SLTccd that those ot
any other Stale shsTl enjoy rl^hla. prlvllerea. sad
ImmuDltlea In each aa Ita own du. would either do
wrong, or deny right to B slater Slate or lu cltt-
lens. or rpfuse to submit 'to those decrees ['SS*
of tfila court, rendered purauant to its own dele-
fcatrd authorltj'i when in a monnrcbr. lU frada-
meDtol law declares tbat aucb decre- "
aelt.
D tbe <
itead. this I
Judgmenta of the courts ot Ibe liolted StalBi, aid
"" -Ighls thereby acquired, tbe ronailtutlon be-
, 1 .. — ..J .^. -latlon la deprived
_mn mocker.v
na of enforcing Ita laws by Ita own tit-
.. - (^ deprecBied by all:
muat feci B deep In-
itlQg principles ro dealmctlre of Ibt
Union, and In averting cooaequencea ■» fatal ta
tbemislTea.
of the
and the people of
ON the 18th of Manih, 18S2, the State ot
Rhode Island, by their solicitor, filed a
bill against the State of Massachiisetts for tbe
settlement of tbe bound a rv between the two
States, snd moved for a BubpcSDa to be issued,
according to the practice of the eoui^ in nmilar
This motion was held under adviaemnit ob-
I the following term, and a aubpcrna wai
awarded and issued on the 2d of March, 1833.
This aubpiena was returned with service m
the 30th July, 183.3; and on the IRtli Januarj.
1834, the appenTpnce of Mr. Webster wa« en-
tered for the defendantfi; and, on hia motioa.
e cause was continued with leave to plead, aa
"er, or demur.
On the 12th January, IS3S, a plea and ••-
rer was ftled by Mr. Webster, and on tbe
23d of February, 1H36, by agreement of cona-
sel, it was ordered by the court thnt tbt
complainant file a replication to the as-
swer of the defendant within ail monlha fnas
the last day of January Term, IR36. or tbat
he cause shalt stand dismissed. The comp'ain-
int died a replication on the 18th of August,
1836; and at the same time, a "notka
of intention to move the eourt for leave ta
the replication, upon the ground that
the rule requiring the same was agreed t« and
entered into by mistake."
"^^If l-t11 AIaJ !.« ti... .......
the 0 ^ „
of November, 1021, by King James I. to tW
council at Plymouth for planting, ruling
ordering and governing New England, i*
America, describing the limits and ^iindarin
of the territory so granted. The grant or coo-
veysnce to the eonnrit at Plymouth of thf 1M
of March, 1628, to Sir Henry Rosewell aid
others, of a certain tract of land deaerihad ii
the aame, «• "all that part of New Bi«(aad. ■
1838
Thb Statk of Rhodb Ibiakd v. The Statb or UAasAcitusrm.
Aineriea, Kforesafd, which lies and extendi be-
tween A great river there, commcmly called
Monomaek, alias Herrimae, and a certain other
ilrar, then called Charlea River, being in the
bottom of a certain bay, there common-
ly called HaMachuaetta, aliaa Mattachiuetta,
aUu Maaaatuaetta Bay; and, also, all and
MO*] 'singular those land* and hereditaments,
whatsottTer, lying within the space of three
Batfiah milea on the south part of the said
Oliariaa RiTor, or of anjr or everj part thereof:
■ud, alao, all and aingular the lands and
hareditamenta, whatsoever, lying and heing
within the apace of three English miles to the
Boathward of the aouthemmoat part of the said
ha;, called HaaaachuBetta, aliaa Mattachusetts,
allaa L .aBsatusetts Bay; and, alao, all those
luida and hereditaments, whatsoever, which
li« and be within the apace of three English
milea to the northirard of the aaid river, called
Monomack, alias Merrimae, or to the north-
ward of any and every part thereof, and all
laiida and hereditamcnta, whatsoever, lying
within the limitB aforesaid, north and south in
latitude and breadth, and in length and longi-
tude of and within all the breadth aforesaid,
throughout the main landa there, from the At-
lantis and western sea and ocean on the east
part, to the South Sea on the west part." The
lettera mtent of confirmation ana grant of
Charlea I. of 4th of Maivh, 1S29, to Sir Henry
Roaewell and others, for the lands included in
the charter of James I., and the deed of the
council at Plymouth, to them by the name of
"The Governor and Company of Mattachu-
■eMa Bay in New England," Incorporated by
the said letters patent.
The hUl further stated that on the 7th day
of June, less, the counsel eatabliahed at
Plymouth for planting a colony and governing
New England, in America, yielded up and sur-
midared the charter of James I. to Charles I.,
which aurrender waa duly and In form ac-
cepted. That after the granting of the lettera
patent, before set forth, and prior to the
granting of the letters patent afterwards
Mt forth in the bill to the Colony of
Rhode Island and Providence Plantations, the
tract of land comprised within the limits of
tbe State of Rhode Island and Providence
Plantation!, had been cotoniKcd and settled
with a considerable population by emigration,
principally from England and the Colony of
the Massachusetts Bay; and that the persons
who had so eoloniied and settled the same,
were seized and poaseaeed by purcbaae and con-
sent of the Indian natlvea, of certain landa,
islands, rivers, harbors and roads, within said
tract. That on the 8th of July, 1603, King
Charlea n., by letters patent, granted a charter
of Incorporation to William Brenton, John
Ooddlngton and others, by the name of "The
Ooveraor and Company of the English Colony
of Rhode Island and I^ovidence Plantationa In
New England, In America;" and granted and
conferred to the corporation, by the letters
661*] patent, "all that part of *our dominions
in New England, In America, containing the
Nahantick and Nanhycansett, alias Narragan-
sett Bay, and countries and parts adjacent,
bounded on the west or westerly to tbe middle
or chaonel of a river there, commonly called
and known by the nams vi Paweatuck, allaa
• Ii. ^.
Pawcawtuck, River; and so along tbe aald
river as tbe greater or middle stream thereof
reacheth or lies up into the north country,
northward unto the head thereof; and from
thence, by a straight line drawn due north, un-
til it meets with the south line of the Massa-
chusetts Colony; and on the north or northerly
by the aforesaid south or southerly line of the
Masaachusetta Colony or plantation ; and extend-
ing towards the east or eastwardly thrae Eng-
lish miles, to the east and nortlit^ast of the most
eaatem and northeastern parts of the aforesaid
Narragansett Bay, as the said bay lieth or sx-
tendeth itself from the ocean on the south or
southwardly, unto the mouth of the river which
runneth toward the town of Providence; and
from thence along to the eastwardly side or
bank of the aaid river (higher, called by the
name of Seacunck River), up to the falls called
Patuckett Falls, being the most wcstwardly
line of Plymouth Colony; and so from the saij
falls, in a straight line due north until it meet
with the aforesaid line of the Maasachusetta
Colony, and bounded on the south by the
ocean. And, in particular, the lands belong-
ing to the town of Providence, Pawtuxet,
Warwick, Nisquammacock, alias Paweatuck,
and the rest upon the main land In the tract
aforesaid, together with Rhode Island, Block
Island, and all the rest of the islands and banks
only excepted), together with all Arm lands,
soils, grounds, haven a, ports, rivers, waters,
fishings, mines royal, and all other mines, miner-
als, precious stones, quarries, woods, wood
grounda, rocks, slates, and alt and singular
other commoditiea, jurisdictions, royaltiea, priv-
ileges, franchises, prehemtnences, and heredita-
ments, whatsoever, within the said tract,
bounds, lands, and islands, aforesaid, or to
them, or any of them, belonging or in anywiae
appertaining."
The bill proceeds to state the canceling and
vacating of the charter to "The Governor and
Company of Massachusetts Bay in New Eng-
land," on a acire facias; and afterwards the re-
grant of the same territory, with other ter-
ritories known by the name of the Colony of
Maaaachusetts Bay and Colony of New Ply-
mouth, the Province of Maine, etc., on King
William and Queen Mary, on the 7th of
'October, 1601. The description of the [*aca
teri'itory then granted, so far aa the same Is
important In thla case, was the following:
"All that part of New England, in America,
lying and extending from the great river com-
monly called Monomack, alias Merrimack, on the
north part and from three milea northward of the
said river, to the Atlantic or western sea or ocean
on the south part, and all the lands and here-
ditaments, whatsoever, lyin<; within the limits
aforesaid, and extending as fsr as tbe outermost
points or promontories of land commonly called
Cape Cod and Cape Malabar, north and south,
and In latitude, breadth, and In length and
longitude of and within all the breadth and
compass aforesaid, througboat the main land
there, from the said Atlanticor western sea and
ocean on the east part, toward the South Sea, or
westward, as far as our colonies of Rhode
Island, Connecticut, and the Narragan sett
' count^. And, alao, all that part and portiofl
last
HuvucMB Cosn or the UnixBt Bttrta.
il mktn Iwad, beginniDg at the entraiiee of
Pinutftwaj harbor, and BO to pass up the aame
Into the rtv«r of Newlch wan nock, and through
the laine into the furtbest head thereof, and
from thtace north westward, till one hundred
Hid twenty miles be finithed. and from I^scat-
Kway harbor mouth, aforesaid, northeast ward,
along the sea coaat to Sagadehock, and from
the period of one buod'^ and twenty miles,
aforesaid, to cross over land, to the one hundred
and twentj' miles before reckoned up into the
land from PUcataway harbor, through New-
ichwannock River, and also the north half of
the Isles at Shoals, together with the Isles of
Capawock and Nantucket t, near Cape Cod
aforesaid; and also the lands and hereditaments
lying and being in the country or territory
commonly called Accada or Nova Scotia;
and all those lands and hereditament! lying
and extending between the said country
or territory of Nova Scotia and the said river
of Sagadehock, or any part thereof."
The bill statea that the Province of Massa-
chusetts and the Colony of Rhode Island and
Providence Plantations, thus established, eon-
tinned under the charters and letter* patent
until July 4, I77S, when with their sister colo-
nies they b«»me independent States. The bill
alleges the dividing boundary line, under the
letters patent and charter to the Colony of
Rhode Island and Providence Plantations and
Uassachueetts, to have been "a line drawn east
and west three English miles south of the
river called Cliarles River, or of any or every
part thereof." That for some years after the
Knting of the charter to Rhode Island, the
da included in the cojonv adjoining Massa-
chusetts remained wild and uncultivated, and
403*] were of little value; 'that previous to
1709, the inhabitants of Rhode Island entered
on parts of the land and make improvements;
and that the said northern boundary line neveir
having been settled, defined or established, dis-
putes and controversies arose between the in-
habitants of the province of the Hassaiihu setts
Bay and of the Colony of Rhode Island and
Providence Plantations, and between the gov-
ernments of the said province and colony, in
relation to the boundary of said colony.
The bill proceeds to state that in consequence
of various disputes and controversies about the
boundary between the two colonics, numer-
ous efforts were made to adjust and settle
the same; all'of which, as the bill alleges, were
not productive of a satisfactory result to the
Colony of Rhode Island and Providence Flan-
tations and to the State of Rhode Island, after'
wards tit abU shed.
These are particularly set forth in the bill;
and the proceedines of the legislatures of Rhode
Island and Massachusetts are given at large in
the same, with the operations of the oommis'
doners appointed and acting under the authority
thereof. After stating the efforts made by the
two States, both whilst eotoniea and after they
became independent States, for the determina-
Uoa of the line, uptol7Sl, alleged tohare been
Abortive And without success, the bill proceeds
to staU, "That on or about the year of our
Ziord one thousand seven hundred and nine,
■ther commissioners were appointed by the said
tata of Rhode Island and Providence Planta-
ons and tha aaid SteU pf Uaaiachosetta. for
»■
the purpoae of ascertaining and MtUinc ths
said northern line of the said Stat* of Shod*
Island and Providence Plantations; that tb*
said last mentioned commissioners rc^MctiTdj,
-}ntinued such commissionera unUi the year M
ur Lord one thousand seven hundred »Mi
i^hteen; and that the said last mentioned coa-
ussioners had several meetings, but were never
able to agree uptm and settle, and never did
agrM upon and settle the said northern line itt
the said SUte of Rhode Island and ProrideaM
Plantations."
The hiU asserU the right of Rhode Island fas
the territory in dispute; that Massachusetta ia
in poaseeaion of the same, and ezerdsca aad
asserts sovereignty and jurisdiction over tbm
same, under the pretenses that the same was in-
cluded In the grants or charters from the crewD
of England, under tha mistaken belief that tha
line, three miles south of Charles River (•
station having been Bied by Nathaniel Wood-
word and Solomon Saffrey, as the point tbre*
milea south of Charles River), actually raaa
where Massachusetts has assumed it t« ma;
and alleging that the line aa it is claimed, and
has always been 'claimed by Massa- [*«4
ehuaetts, was settled and adjusted b^ the com-
missioners acting under the authonty of the
parties respectively,
The bill proceeds to show the errors of pra-
leedings of the commissioners acting for the
two colonies, and states "Tiiat no mark, atakc
or monument at that time existed, by which
the place in wliich said Woodword and Saffrey
aforesaid alleged to have set up a
the said pretended agreement, did not, n
an^ or either of them, go to any place where
said stake was alleged to have beea set up; aor
did they, or any or either of them, make aay
survey, or cause any survey to be made, or ma
any line or lines, or cause any line or iinea t«
lie run, or take any other means to sacertaia at
what place, if any, the said stake waa act np
by said Woodword and Saffrey; nor whethiv
the place in which the said stake was alleged
as aforesaid to have been set up by tha said
Woodword and Saffrey, was in fact threa Kaf-
lish miles, and no more, south of the rivca
called Charles River, or of any or every part
thereof; nor whether tbe said line, alleged
in said pretended agreement to have bean raa
by the said Woodword and Saffrey, was ever
in fact run by said Woodword and Saffrey;
nor whether said pretended line was the tmcaad
proper boundary line between the said Proviaea
of the Massachusetts Bay on tbe north, and tbs
said Colony of Rhode Island and Providnoe
Plantations on the south, according to the tie*
intent and meaning of the grants contsuncd ia
the respective ehartera or letters patent atcr^
The Ull asserts that tbe tine designated and
run under the agreements has always been re*
slsted by Rhode Island, while a colony aid
since she became a sovereign State; and that at
other boundary than tiiat asserted in the til
between Rhode Island and Uassachusetta, thas
that deflnsd, granted and established ia aad by
tbe respective charters and lattcn patsmt afere-
said hereinbefore set forth, aoeardiaa ta th*
true and fair eonatruetloB tbareof, baa ava
FMam I*.
Tub Stati or Rhome Island t. Tea Stitb or HAaaAOBoaRTS.
Imm conRrntrd to, or tdmUtcd to be the true
boundary lins by the complainantai eitlier
while ihe continued under tha ro^al govern-
ment, or since ihe b«ckine «n independent
■ad Mvereign State. The proecedingi of Mae-
••cbusetta are alleged t« interfere with and
prevent the exernae of that Juriadiction and
■overeigntj whieh, by the law of the land and
tha Conatitution of the Union, eheii entitled to
•zercia« over the itholetraot of land mentioned
uid deacribed in the charter or letters patent
granted to the aaid Colony of Rhode Island and
• eft*] Providence 'Plantations, and hereinbe-
fore aet forth, and over the eitlseae and in-
babitanta thereof, according to her claim in
this her bill made."
The bill asks that Inaamucfa as tha complain
■nta have no aatlafaetory relief on the common
law aide of the court, "espedallj' aa the contTo-
rerty concerns questions of jurisdiction and so»-
•rclgnty," that the Commonwealth o( Masaa-
chvaetta answera the matters set forth in the
bill ; and that "the northeni boundary line
between the comptainanta and the State of
MassBcfausetta may, by the order and decree of
thia honorable court, b" ascertained and eatab-
liahed; and that the rights of jurisdiction and
•overeignty of the complainants to the whole
trkct of land, with the appurtenances mentioned,
deacribed and granted In and by the said charter
or letters patent to the said Colony of Rhode
Island and Providence Plantations, hereinbefore
set forth, and running on the north, an east
and weat line drawn three milea south of the
water* of said Charles River, or if any or every
Crt tbrrrof, may be restored and confirmed
the comp'ai.ianta, and the complainants may
be quieted in the full and free enjoyment of
her jurisdiction and auvereignty over theaame;
and the title, jurisdiction and sovereignty of
the aaid State of Rhode Island and Providence
Plantations over the same be confirmed and
establiahed by the decree of the court; and that
the comptainanta may have auch other and
further relief In the premiaea, as to 'th«^ court
•ball seem meet and eonaiitent with equity and
good Donsdence."
"The Flea and Answer of the Common-
wealth of Massachusetts, to the Ull of com-
plaint of tbe state of Rhode Island," alleges,
that in 1642, for the purpose of ascertaimng
the true southern boundary line of Masaaehu-
aetta, a station or monument was erected and
fixed at a point south of Charles River, taken
and believed to be on the true and real boundary
line of the Colony of Hassachusetts; which
monument berame and bas ever since been
well known and notorious, and then was and
ever since has been called Wood word and SaCT-
rey'i station, on Wrentham PUina; and after
tbe fldog of said station, and after running of
the line aforesaid, and after the granting of the
charter of Rhode Island, and while all the
territory north of said station and line was
claimed, held, and poaaeaaed, and jurisdiction
over the same exercised and enjoyed by Mae-
aaehnaetta, as parrel of her own territory, about
the year 1T09, diapute and controversy having
arism between the two governments respecting
(B6*] the aaid boundary line, 'peraons were
appointed by the government of Rhode laland
and by the government of Haaaaehuaetta. to
settle the Mlsuudeiatanding afaoat tbe line be-
t lb ««.
tween the eolontea; and what tbe persona ap'
pointed should a^ree upon, ahoutd be forever
after taken and deemed to be the stated lines
and bounds, so aa the agreement be drawn up
in writing, and Indented, under their hands
and aeals, within aii months as aforesaid.
That afterwards, on the 10th January, 1710,
the commissioners sppoJnted by the colonies
met, and entered into an "agreement of tbe
partition line betwixt the Colony of Massa-
chusetts and the Colony of Rhode Island," by
which it was declared: "That the stake set
up by Nathaniel Woodword and Solomon BalT-
rey, skillful approved artists, in the year of our
Lord one thouHand six hundred and forty-two,
and since that often renewed, in the latitude of
forty-one degrees and fifty-five minutes, being
three English miles distant southward from the
southammoat part ef the river called Charles
River, agreeable to the letters patent for tbe
MasBochusetta Province, be accompted and
allowed, on both sides the commencement of
the line between tbe Masaaehuaetta and the Col-
ony of Rhode laland, and to be continued be-
twixt the aaid two governments in such manner
as that, after It has proceeded between the said
two governments. It may pass over Connecticut
River, at or near Biasell's house; as ia decypher-
ed in the plan and tract of that line, by Nathan-
iel Woodword and Solomon SaRrey."
By this agreement, on a presumption that
there had been error In setting up the station,
certain surveys bad been made within the line
of Masaacbuietta, thus ascertained, it stipulated
that there ahould "be and remain unto the said
town of Providence and inhabitanta of the gov-
ernment of Rhode Island and Providence
Plantations, s certain tract of land of one mile
in breadth, to the northward of the said line
of Woodward and Saffrey, aa before deacribed
and platted, beginning from the great river of
Pautucket. and so to proceed at the north aide
of the aaid patent line, of equal breadth, until it
come to the place where Providence west lins
cuts the said patent line, aupposcd to contain
Sve thousand acrea, be the aame more or lessj
the soil whereof shall be and remain to tbe
town of Providence, or others, according to tha
dispoaition thereof to be made by the govern-
ment of Rhode Island aforesaid- Nevertheleas,
to continue and remain within the jurisdiction
and government of Her Majesty's Province of
the Massachusetts Bay, anything in this agree-
ment to the contrary thereof, or seemingly ao,
notwithstanding."
'The agreement contained other pro- ['687
visiona for the preservstion of the line, and for
the ascertaining the surveys made by the In-
habitants of I^vidence within the same; io
that they might proceed with the aettlemant
and improvement thereof.
This agreement was executed under tbe hands
and seals of the commissioners, and was wit-
nesaed by persons on the part of tbe two oo)>
The plea and answer alleges that the whole
of the real and true merits of the complainants'
supposed cause of action were fully heardl,
tried, and determined by the judgment and
agreement of the eommiasi oners; that tbe aama
was a full settlement of all the matters in een-
troversy, and was mode In good faith; and tlw
statioB so fixed and eatabliMied, became matter
MT
SuPBBMi CouBT or THE Unmn Bwatmm.
1 notoHet)', and the line capable of
being mlways known and ABCRrUined.
The answer and pie* further states that a/t-
•rwarda, on or about June tSth, ITIT, to coto-
ptet« the settling and running the line between
the two governments, the General Assembly of
HaaBachusetts passed an order appointing coir
miasioners to meet commissioners to be appoinl
ed hj Rhode Island to nin the line, Recording t
the agreement of Jauunry 19tb. 1710. Certain
other proceeding* on the part of Maseachusetts
took place, preparatory to the procccdin<^ of
the eommJaaioners; and on the 17th June, 1717,
tbc General AsBembl; of the Colony of Rhode
latand and Providence Plantations passed an
act appointing commissioners on the part of
Rhode Island, for the final settlement of the
boundary line with the com mi se loners named
and appointed by Maasacbusetta. On or about
the 2Sd of October, 1718, the commissioners
met, and than made an agreement, which was
signed, sealed, executed, and delivered by them,
S which It was stipulated and declared: "That
1 stake set up by Nathaniel Woodword and
Solomon Saffrey, in the year one thousand six
hundred and forty-two, upon Wrentham Plain,
be the station or commencement to begin the
line which shall divide between the two govem-
ments aforesaid, from which said stake the
dividing tine shall run, so as it may (at Con-
neetieut River) be two miles and a half to the
southward of a due west line, allowing the va-
riation of the compaas to be nine degrees, which
said line shall forever be and remain to be the
dividing line and bo^indary between the said
govemmenta, any former difference, eontro-
reny, claim, demand, or challenge whatsoever
notwithstanding." And on the twenty-ninth
day of the said October last aforesaid, the Gen-
eral Assembly of the said Colony of Rhode
4(8*1 'Island and Providence Plantations ac-
cepted the agreement of the said commissioners,
and caused the same to be duly recorded, and
thereby ratified and confirmed the same.
The answer avers that all this was done tn
good faith, and with a full and equal knowl-
edge of all the circumstances by the respec-
tive parties; and that the same has never been
annulled, rescinded, or abandoned; and the last
TMment was In pursuance of the agreement
1709. Afterwards, on the Uth May, 1719,
the commissioner* on the part of Massachusetts
and Rhode Island, signed a report, return, and
statement of their proceedings, under the desig-
nation of "The subscribers, being of the com-
mittee appointed and empowered by the govern-
ments of the Province of Masanehu setts Bay
and the Colony of Rhode Islands and Provi-
dence Plantations, for settling the east and west
line between the said governments;" stating
that they had met at the stake of Nathaniel
Woodword and Solomon Saffrey, on Wrentham
Pldn, and had run the line, p'acing heaps of
■tone* and marking trees to designate the same.
The defendant further alleges: "That the
aald report, return, or statement was afterwards,
that la to say, on or about the sixteenth day of
Jnne, in the Year of our Lord one thousand
■even hundred and nineteen, approved by the
General Assembly of the said Colony of Rhode
Island and Providence Plantations;" and the
defendant alleges that from the date of the said
eemenl* to the preaaat time, tba tU Oom-
•ReeoK
monwealth of Haasaehuaetta has pasaeased tad
enjoyed all the territory, and exercised jaris-
diction over the aame, north of the said lioe, as
prescribed in the said agreement* of Octohw,
1718, without hindrance or molestation; and the
aaid defendant avers that both the points of be-
ginning agreed upon by said parties to Mud
agreement, viz., the stake or station aet up by
the said Woodword and Saffrey, and the lise
run therefrom to Connecticut River, then warn,
ever since have been, and still are well knowa
and notorious; that the whole boundary line
fixed on by said agreement is preciae, definite,
and certain; and that the aaid defendant ha*
occupied and exerciaed jurisdiction, and en-
joyed all rights of sovereignty according to the
aame, from the date thereof to the present tine.
The defendant pleads the agreement of 19tk
January, 1710, and the agreement in purmaaec
and confirmation thereof, of 22d October, 1T17;
and unmolested possession under the sama
from their date, in bar of the whole bill of the
complainants, and prays judgment accordingly.
•The answer and plea further aver [*•••
that the agreements stated were made and en-
tered into with full knowledge of all the cir-
cumstances in both parties; that the aame wm
a valid and effectual settlement of the mattMS
in controversy, and were made and entered
into without fraud or misrepresentation; and
the station settled there has been notorious, and
the line run therefrom has always been known,
and Its marks and memorials capable of beinf
discerned and renewed.
Ur. Webster, of counsel for the State of Haa-
sachusetta, moved to dismiss the bill Sled by
the Bute of Rhode Island, on the ground that
the court had no Jurlediction of the cause.
The motion was argued by Hr. Anatin, tb*
Attorney -General of the Stale of Massachuaett*^
and by Hr. Webster, on the part of the State of
Massachusetts, and by Mr. Hacard and Ur.
Southard for the StaU of Rhode Island.
Mr. Anstin, in support of the motitm:
This is an action by bill on the equity aid* «(
the court, instituted by the State of Rhode Is-
land against the State of Maasachueetta.
The bill asserts the claim of Rhode Island la
jurisdiction and sovereignty over a porti<n el
territory therein particularly described. The
territory so described comprises between eighty
and one hundred square miles, beinK a part M
six townships, incorporated under tbe laws of
Massachusetts, with a population of about fiva
thousand persons, at present citiicns of that
State, and not less than five hundred thousaad
dollar* of taxable property. Rut the bill uakM
claim to any right of soil. It doea not seek
disturb the title of the present posaesaora «(
land, whose ancestors probably dnived
ereignty and jurisdictinn which it seeks to ac-
quire now is and altpfays, heretofore, from ths
first settlement of the country, have in poiat
of fact been enjoyed and possessed, first by the
Colony, afterwards by the Province of Massa-
chusetts, and then by the State of Maaaaeha-
setts, at the Declaration of American Indcptai-
inoe, at the adoption of the Constitution of tks
United States, and uninterruptedly to tbe pres-
ent time; but avers that the tvritory ovct
wUeb Jurisdiction aad sovaraignty are now Is-
P«HM It.
'K38
Thk State of Hhoiie Island t. The State of UABSACHirsRTf
mknded for Rhode latftnd w&b not included
witbin the boundary of the uicient Colony of
HuMMhiuetts in IM2, but wm contained in the
170*] 'description of tba Umita of Rhode Is-
land, Ma utabliBhcd by the chift«r of Charlei
n., Blade to her m a colony of Great Britain,
in 1663, and by force of that charter, ought
now rightfully to be enjoyed by her; but that
UasiachuaettB wrongfully usurped jurisdiction
and sovereignty over the territory thus claimed,
and now poaacsBes it, and haa always possessed
it without right.
The complainant therefore asks of this court
that the northern boundary line between the
complainant and the State of Massacfausette
may, by the order and decree of this honorable
court, be ascertained and estabUshed, and that
the rights of juriadii^tion and sovereignty of
your complainant, may be restored and con-
Armed to the complainant, and your complain-
■at may be quiet^ in the full and free enjoy-
ment of her Jurisdiction and sovereignty over
the same; "and the title, inrisdicti on and sov-
ereignty of said State of Rhode Island be con-
firmed and established by the decree of this
honorable court, and that your complainant
may have eui^h other and further relief in the
premUeB aa to this honorable court shall seem
meet and consistent with equity and good con-
Among the allegationB of the bill, it appears
that a commission for the establishment of the
partition line between the two colonies was ap-
pointed by the respective local governments
thereof; and that the commissionera on Janu-
ary 19, 1710, L7I1, agreed upon and established
the line, as it now Is, and always before had
been known, poesessed and eBtablished. But
the complainant seeks for various causes which
ftre In the bill enumerated, to set aside this
agreement and adjudication of eommiBBJoner*,
as null and void.
The respondent has flied a special plea in bar
to the complainant's demand, grounded on the
arbitration, award and settlement made by
thoM commissioners, and a constant and unin-
terrupted posBCBsion under it for more than a
century; and has answered In full all the alle-
gations bj which the complainant seeks to
vacate this award. And the respondent well
hoped it would have been the pleasure of
Rhode Island to have discussed the merits and
effect of this ancient adjudication; but when
her iMrned counsel, under an order of this
court to answer the respondent's plea, filed a
general replication, they accompanied the same
with notice of an inttntion to move to with-
draw the same, and have since intimated a de-
sire to change and amend the tenor of the bill
itself. To all this there would be no other ob-
jection but the inconvenience of delay, and the
671*] trouble *of keeping open a litigation so
extensive in its operation. To bring the whole
matter to a speedier issue. Msssachusetts pre-
senta only a single point of her defense.
A motion is now made to dlsmisa the bill for
want of jurisdiction.
In establishing the government of the United
States, the 3d article of the Constitution, and
•eeond section, provides that the judicial power
ihall extend to all cases In law and equity
arising under this Constitution, the laws of the
fTi^ted Stat««, and treatica made, or which
.1 It. sd.
shall be made under their authority; to aQ
cases affecting ambassadors, other public min-
isters and consuls ; to all cases of admiralty and
maritime jurisdiction; to controversies to which
the United States shall be a party; to contro-
versies between two or more States, etc.; in all
cases affecting ambassadors, other public min-
isters and consuls, and those in which a State
shall be a party, the Supreme Court shall have
original jurisdiction.
Whether the subject of the present suit is a
controversy between States, within the mean-
ing of the Constitution, and whether, if it be so
considered, a law of Congress is necessary to
the exercise of judicial power by this court In
the premises; and whether, if such taw be nec-
essary, any sufficient action has been had by
Congress to authorize judicial proceedings, are
questions which, under this motion, are to be
examined and decided.
In support of the motion to dismiss the bill,
it Is contended that this coiui has no jurisdic-
tion over the present suit:
1. Because of the character of the respondent,
independent of the nature of the suit.
2, Because of the nature of the suit, inde-
pendent of the character of the respondent.
If the first of these propositions can be main-
tained, the result is that in the present state of
the law, this court cannot entertain jurisdiction
over a State of this Union for any cause. If
that may be doubtful, and the second proposi-
tion is established, it will result in this, that
the subject matter of this suit, being for sov-
ereignty and sovereign rights, is beyond the
jurisdiction of a judicial court.
To the jurisdiction of a court of the United
Statea in every case, two circumstances must
concur: 1st. The party, or the subject of the
suit, must be one to which the judicial power
of the government extends, as that power is de-
fined by the Constitution ; and, 2d. There
must be some rule of decision established by
the supreme •power of the country, by [•678
the administration of which the right of the
parties to the matter in controversy may bo
determined.
The government of the United States does
not come by inheritsncc, or succession Into any
judicial power. In this respect, it is essentially
different from all other governments known in
the history of the world. Where a nation has
(teen eatabliahed by colony, or by conquest,
there was a foundation in the Institutions of
the parent state, or the victors, on which its
municipal establishments should be placed. Its
own domestic arrangements, if It had any, re-
mained, imti! changed by paramount authority.
Such was the case with the States of this
Union, when they ceased to be colonies. The
government of the United States is a new gov-
ernment, beginning with the Const! tuti no. Al-
though the confederation was its prototype,
there was no general government, snd certainly
no national or federal judiciary, until the Con-
stitution had formed one.
The government of the United States may,
theri^fore, exercise all, but no more than all
the judicial power provided for It by the Con-
stitution.
The third article of that instrument contains
a declaration of tb« existeiice and extent of this
new power.
ISSt
Surama Coubt or the UKitm Statsb.
B kaoertaiiit the pftrttca, the CAUsea, »nd the
Miirta for judicial Mtlon. To a certain extent,
it eetablisEiefl the rule of d^ciaioa, mnd, perhepB,
pend on KBcertaining how far the rule of deci-
•ion is eairied by the Conatitutionj because, if
the oartf and the controverBy, and tbe rule for
dadding the meriti of the controversy are,
by the Constitution, given to thie court, there
can be no impediment to ita action in this par-
It ia admitted that b^ the express word* of
the Constitution the judicial power of the
United States extendi to controversies between
two or more States. The party, therefore, may
be within the operation of the judicial power,
in case such acontroverEy as Is contemplated by
the Constitution exists with one or more States.
Does the term "controversies" extend to all
eontroversies I
It is to be observed that tbe word "all,"
which U prefixed to tbe other clSBses of coses.
Is here omitted. The judicial power extends
to all cases under the laws of the United
States; all rases under tbe treaties pihiIc etc.;
all eaaes affecting ambasH&dors, etc.; all cases
of maritime and admiralty Jurisdiclion. Imt ha
Ehraseology Is changed, and the unfvei-Buliiy
mited by the omission of the word '-all."
US'] when it relates "to controversies lo
which the United States shall be a parLy. hiuI
to controveraies between two or more Stuli's.
The Judicial power, then, does not reaeh to nil
posaiole controversies to which the United
States shall be a party, or between two or
more States.
What are the limitations r The first are
those which are made by tbe character of the
tribunal, and are included in the term "judicial
power," and the words "law and equity," which
precede tbe enumeration of the subject matters
of judicial cognizance.
Although tbe government formed by the
Constitution was a new government, and took
nothing by succession or custom; the men who
framed tJie Constitution were educated to an
intimate acquaintance with the judicial institu-
tions of England; whose laws were, to a great
dj^gree, the foundation of our own, and whose
language, when used by them in this relation,
must be deemed to have a technical meaning.
A judicial power means, therefore, a power
to interpret, and not to make the laws; and the
terms "law and equity" have reference to that
complicated code of the mother country; ex-
tensive, but not universal, and limited in its
operation by well settled decisions.
A limitation, on the broad terms of the grant,
is necessarily Implied in other branches of this
power. The judicial power extends t« contro-
versies to which the United States shall be a
party, and between a State and foreign states;
tat It would be manifestly absurd to bring the
political disputes of the day, nullification.
abolition, slavery, and the controversies whi::h
are beginning to arise between States concern
ing them, to the decision of a jury trial in a
court of law.
It is submitted, also, that eontroversies be-
tween States must be Umit«d to those which
win with the States in that capacity, and does
It extend to the antiquated eontroveraiea ax-
*4t
' iitlng between the eotonlea, to which the StvtaN
may or may not have succeeded, according In
circumstances, which n judicial court cnn bn«a
no means to ascertain.
But the proper mode of considering this nr-
tide of the Constitution, in relation to tfca jo-
dicial power, is to take the Oonstitution aa a
whole, and keep constantly in mind tbe grand
design and intention of its framers; always ra-
garding it as unique, original, and connistent
with itself. The grand object of ita framer*
was to establish a common government for sov-
ereign States, and to have that sovereignty
'unimpaired, wherever it could so be [*t74
left, without impairing tbe government of the
Union. The judicial power of the United
States is a power, in this view of the case, all
or any part of which the government of tbe
United States might exercise, through the ap-
propriate department which waa to be estab-
lished.
It extends to such controversies between two
or more States as are properly within the de-
cision of law and equity, in the precise sense
of thoHC terms, arising between the States, in
virtue of their relation as States; and to be
proceeded with and decided according to the
customary forms of judicial proceeding*, nnd
the established doctrines of known and ac-
knowledged laws. Every State, by virtue of
its sovereignty, and every citizen of every
State, by virtue of bis allegiance to such State,
fllauds absolved from the jurisdiction of tba
judit^ial power of the United Statea until tbo
government of the United Statea, putting into
operation so much of the judicial power
granted by the Constitution as Is necessary for
the purpose, has organized a court, eatablished
the rules of decision, directed the forma of ita
pio['i'BB, and designated the subjects for Its
cognizancei not exceeding, in any of these re-
spects, the power assigned to it by the Const*
tution itself.
If, therefore, there is no law regulating the
intercourse between the States of the Union,
there is no rule for settling a controversy that
may arise between two or more States by
reason of such intercourse. If it then should
be admitted that a law could be made binding
the intercourse of States, and that one SLat«
might sue another State for a breach of such
law; yet, until such a law exists, this court can
entertain no jurisdiction, because the State,
having a character above or beyond the exist-
ing law, is not amenable to any superior; and
the court having no law to expound, cannot
settle a judicial controversy, depending, aa all
such controversies do, on the question wbathcr
the conduct complained of, has, in the ease pre-
sented, conformed to, or departed from tbt
obligations which are imposed by law.
The positions, then, which, to carry oat tUs
doctrine, are next to be established, ar«, that
the jurisdiction of this court in any particnUr
case, depends on some adequate legislaUve pro-
vision for tbe exercise of its powers under tbe
Constitution; and second, that in point of fact,
no law is now in force which operate* judicial-
ly on a State of this Union.
A legislative provision, it la contended, la
necessary for two purposes: tlrat, to ragiilata
tha form of process from the eitatioa to tka
■judgment and axeeution, without [*<1B
P«Mn 1«
1S3S
luB St^tb or Rhodi Islaud *. Thk Biati or MAniAcHUBii'ia.
•7f
vhfch iMt, judicial action ti t, mere mockery)
and wcond, to eetablfih the law of the com,
or the rule of action by which the conduct of
lb* Jltig&nta la to be tried.
In lenrd to the last, which, aa the moat
mftterial, may be flret cooBidered, it Buppaaed
tbftt DO doubt can exist ss to the ncce^sitf ol
•neb law, «• a prercquiute to judicial action.
Judgei ore to expound the law, not to make it.
The only pertinent question then is, does any
existing law which this court can recognice,
act upon and rcRiiinte the intercourse betwesn
the States of thia Union ?
It is supposed that when a nation Is eatab-
liabed, and becomes by revolution or otherwise
a member of the family of nations, it is, ipso
facto, under the operation of international law.
But not only does tbe doctrine of international
law apply to the nation, and not to the States
of our confederacy; but the law Itself Is not
the subject of admioiatrstion by Judicial tri-
bunals, when it operates on eomtnunitiee. Am-
bassadors are its counselors and its ar^ment,
the ultima ratio regum. If the principlea of in-
ternational law are made applicable to indi
viduals in a judicial forum, it ia beeaaee tht
ministers it by the force of domestic legisla-
Uoo. The Constitution may itself eatabhah a
rule of decision. It does so in the case of
treaties, which are declared to be thr supreme
l«w of the land; and it providea that its own
provisions shall be binding on judges in all the
States. Whatever difficulties might be found
in a judicial administration of the Constitution
or a treaty between individual litigants claim-
ing rights under them, without the aid of a law
of Congreas, they may all be done away with-
out touching this esse; because nothing is
claimed by the Constitution or any treaty of
the United States to show the right of the
elaimsut in the present case, or bind the re-
spondent to any prescribed course of action.
The necessity of b law of Congress to estab-
lish, by direct enactment or by implication, the
code of the United States, hsa been admitted
by this court. Martin t. Hunter, 1 Wheat.
32S. And it is supposed by the court, in giv-
ing its opinion in that case, that Congress was
bound to vest in its courts a!) the judicial pow-
er of the govemnient.
Congress has judged differently, because it
has not sppropriated nil the judicial power of
tbe government. But the question here ia not
whether Congreaa ia wrong in the omission, but
whether. In a clear case' of omission, this or
any court of the United States can supply the
•TS*] 'defect. In a very early period oiF the
history of this court, it was auppoaed that the
States, like Individuals, were amenable to Its
jurisdiction; and under that Impression it was
intimated in argument, and seemingly aus-
t*ined by the majority of the court, that the
moment a supreme court is formed, It ia to ex-
arcise all the judicial powers vested In it by the
Constitution, whether the Legislature have pre-
■eribed methods for its doing so or not. Chris-
holme'a Ex'rs v. The State of Georgia, S Dall.
411); 1 Cond. Rep. B.
lie opinion of the court was not unanimous;
Mid Judge Iredell's dissentinji opinion has be-
coma, bjr the 11th article of the amendment of
• 14. ed.
the Uonstitutlon, the better authority. It ia t«
be obaerved that this amendment does BOt
change the text of the Constitution. That ra-
maina the same. The amendment daelaraa
that the jndicial power shall not be deemed to
extend to a esse which, by the construction of
the court, it had in the above coae been made
to reach. It is further to be remarked that all
the subsequent proceedings of this court in re-
Rrd to states defendants, have, as far aa they
ve proceeded, been fastened to this case.
But the case beins overruled by a highar
tribunal than even this anguat court, in a moda
perfectly legal, it ia anhmltted that no dictum,
and no principle promulgated In it, can hava
the authority of law.
The neceasity of a code of lawa for the gOV>
emment of judicial action being apparent, Oon-
gresB has attempted to establish ona. ^Diia ia
done, so far as it is done at all, by the Ju-
diciary Act of 17S0.
This statute adopts, in the 34th secti<Hi, tba
laws of the States as a rule of action whera
they can apply. But aa no law of Maaaaehu-
setts or Rhode Island can embrace the respond-
ent in this particular matter, there ia by that
section no rule prescribed for the pivsent eon-
trove ray.
It has been contended that the statute afore-
said, taken in connection with the ConsUtutlOD
itself, established a code mixed and miaeelU-
leouB, made up of the common law and eqnlty
}ractiea of Qreat Britain, modified by onr par-
.Icular Inatitntions, which serves ai the Miia
of Judicial action. To a certain extent, thia
is undoubtedly so in many, if not all the old
States; but to what extent it ia true in regard
to the United States has been a debatable quea-
tion, and is not yet definitely settled.
It is not necessary to settle It in thIa ease;
because, if the common law and chancery law
of England are in operation here, in their ut-
most latitude and force, they do not remeh the
respondent. "The common law of Eng- ['9T7
land takes no jurisdiction over the actions of
sovereign States, nor is there any power in
chancery to hold iurisdietion over a sovereign,
without hia eonaent.
Such ts the character of the States, respao-
tively, of this Union. Thia proposition It is
not intended to diacuas. No man who haa at
all studied the Constitution of the country can
fail to have hia mind made up on this point,
_. side or the other. It ia maintuned
by the respondent that arery Amerleui State
is a qualified sovereignty, and as such exempted
by common law (meaning thereby the whole
judicial code of the country) from judicial re-
sponsibility. It Is not contended that a law
may not be constitutionally made to reach a
State. The question under discussion is,
whether the present law extenda to a State.
beyond all controversy that the c
operates on subjects only, and not aorereigns;
ind upon property, and not aoveroign righta.
If the Constitution authorizes tbe govern-
ment of the United States to subject a SUte to
' iicial process and judgment, the gonremment
the United States may pass the laws neces-
sary for the purpose. But to declare what
may be done, U not to daelftra what ia don^
1*4 1
If Congttat, for U17 rMaon, ioM (topped aliort,
tht JudlcUI departmeat fa kt ths laina point
brous^t to B stand. If it baa adopted the com-
mon lair and nothing more, tha court can do
BO more than the common lair warranto. If
the eommoQ law does not extend Its juHsdle-
tlon over a sovereignty, neither e«n the court.
The doctrine contended lor is that alone
which prevent* a suit against the United State*
bj nrtrj iDdividual who has a demand in dis-
pat«. The Constitution is as unlimited in ra-
gard to the United BUtes aa the SUtea. The
Judldal power extends to controTersies to
which the United States shall be a party.
And Id the earlier deciaioni of this court, it is
ouuntalned that it is the same thing, as regard'
ehuaetta, tnatead of soIidtlDS Congress for an
adjustment of Its claim, might have instituted
a suit In this eourt, obtuned if It would a Judg-
ment, and levied Ita execution on a ship of the
line, or the arsenals of the country.
The sovereignty of the United States, carried
to its legitimate consequences, protects It from
• 78*] this eztnvaeant absurdity. But 'Chief
Justice Jay, whsn. In his opinion In the GeoT'
^a case he rode over State sovereigntiei
ment involved _ , _...._. __
United States to a suit at law. Be avoids it,
however, by the extraordinary RugBestion that
'in all cases against States or inmvidual oiti-
sens, the national court* ars supported in all
their legal uid eonatitntional proceedings aod
jndgments by the arm of the executive power
of tiie United State*; but in case* of actions
against the United State*, there is no power
which the courts can oaU to aid." Oeor^a
cose, 2 Dall. 478. What la tU* but an aban-
donment of duty through fear. It would have
been better to adt^t the maxim of the English
Lord Qiief Justice: Flat Justitia, ruat c<dum.
The better answsr la that by the law, aa it
stands, no action in a Judicial eourt can be
maintdned against a sovereignty, whether
State or national. That the Constitution baa,
in both caaes, anthoriied Congress so to frame
and pass taws that the judicial power may op-
erate on the one and the other; but until that
Is done, any action of the judidarv would not
be to expound the law of the case, but to make
one.
But the United States are sometlmea sued.
T\d» is in ease* of contract, or other similar
causes of action. In which tiie United States,
dealing as a private dtlien with other dtiiens,
consents to come Into a court of justice, and
submit to the operation and eonstruction of the
laws of the land. The laws of ths land reach
to contracts. The United States makes a con-
tract; and when it submits, by Its own consent,
to a salt, admits expressly that io the deetsion
the law of eontraots stiall apply to Its case.
The United BUtes makes a treaty; and, by the
Constitution, a treaty ia the law of the land.
It claims for itself land under that treaty;
takes possession, and cannot be ousted by a suit
at law, in virtne of its sovereignty. But It
waives Us sovereignty, and submits Its title
mtdar tte treat; to arbitrament by eommli-
riooMS, or to ft Judicial dedalaa ta • eonrt of
Irw.
IHI
Hare the States eonsented to be mwdr Uk-
questionably the provision of the Coostitntka
Is their consent to exactly what that provU«
contains; but the Inquiry Is not of n ■ ■ '
construction.
Ifaasachusetts does not propose to take hw-
self out of the Constitutum, or to wHbdn*
from any of its obiigationa. She admit* that
under certain droumstance* she haa agreed I*
waive her sovereignty, ud sulunlt her e«>>
troversies to tudioal deddon; but —'-*■¥•
that 'before soe can he called upon to [*41t
do this, a court must be eetabliahad, s law
nude, or a code propounded, suitable to th*
decision of her case, and the forms of p
mode of proceeding, character of
and means of enfordng it, be first e
by legislative authority. But the United
States never has submitted its sovereign rigfate,
or its acts In It* sovereign capadty, to ja£eial
cognizance, and never can; and the Statea, as
is contended, by agreement to submit tb^
controvert es to judidal decrees, nerer in-
tended to Include in these controversies qws-
tions of sovereign right, for the regulation of
which no law ia made; and 00 law ever can be
made by an^ other power than themselves, and
each one for itself alone.
This view of the case i* greatly fortiaed \j
considering the law which the complainant de-
sires this court to adminiBter. This, indeed,
may be deemed to belong to the merits of th*
c*se, and it does to. But it is also an appT»-
iffiate subject of examination under tbe mo-
tion BOW submlttod. One of the ground* of
thi* motion is that there I* no existing law tt
the country bindiBg on these parties, appliea-
bls to the controversy between them, whisk
this court can administer. This would be ex-
ceedingly obvious if the complainant had pr*>
sen ted bis title under the bill of ^ip*
Nicholas v., b^ which he divided all the eon-
tri*s to be discovered from Africa to India;
or under Alexander VL, in which he divided
three quarters of the babitable globe: Omnss
Insulas et terras firmas inventus But iovta-
ienduR, detectas et detegendas, etc.
The claim set forth in the bill la, in tba Jndg-
ment of the respondent's eounsel, equally ex-
trajudldai and untenable.
The State of Rhode Island sUtes iU claim t*
be thus; By the charter given to certain ptr-
by Charles I., King of England, bearing
date the 4th March, 16S8, ths Colony of M*>-
sachusetts was established, with a territory
bounded on the south by a line drawn withta
the space of three Bogliah miles, on the south
part of the said river called Charlea lUvcr, sr
~ 3r of ever7 part thereof. That a char-
granted b; Charles n., on or about S&
July, 16B3, eetabliahing the Colony of Bhods
Island, by which its northern boundary was
defined in these words: "On the north at
northerly, by the aforesaid south or Boutheriy
line of Massachusetts Colony or PlantatioB.
By these two charters the boundaries of th*
two oolonie* were adjacent and eonterminoH.
That after the vacating of the colony etar-
ter of Massachusetts in M8S4, and the [*«••
province charter In 1891 (whidi, M
matter Is ooncemed, estaUiihed tiM
same conterminous boundary by tb* *•■■
word*), th* goverameat of H***aicba*rtt%
1838
Turn Statk or Bhoos Isiakb t. Thb State or ftLwsAOHimnTB. Wt
•boat 1719. wrongfullj poueaied hanclf of a
tract of land more southerljr than » true line
would be drawn, which ahould be mn three
miles south of the river called CbarleB River, or
of any and every part thereof, "and vitending
Che whole length of the north line of the Colon;
of Rhode Island, being more than twenty miles
In lenrtb and four iniles and fifty-six rods in
breadth, in the east end thereof, and more than
Ave miles in breadth at the west end thereof,
kud ha* since continued wrongftilly to exerdie
Jnijadlction over the same."
Fran other parts of the complainant's state-
nWDt, it Is apparent that the true p'aee for the
diridhiK Hoe was then admitted by both parties
to be that describod in the charter, and that It
was drawn and the territory occupied by the
Province of Masaschusetta on a claim of right
that the place of location was the place desig-
nated in the charter. The possession of Massa-
chusetts, per fas ant nefaa, from that time, is
Admitted.
The title of Sbode bland to ttas premises,
admitting she is right in the eonstruotion of
the charter, and the point from which the
boundary line should be drawn (in which, at
a proper time, it will be proved she is in great
verse posiession of more than one hundred
j^ean; first by a province, and next by a State
of the Union; through alt the Ticissitudea of
war, revolution, and indrpendence.
If, therefore, such a charter, admitting its
exJBtence, gives no title against an adverse pos-
■•Bsion; and especially, if the Declaration of
American Independence and tha subsequent
forautioD of a federal government, to be Ju-
dicially noticed by this court, have vacated
the law, or supposed law, on which the claim-
■at rests its title, and this so plainly that tbe
charter cannot b« inquired of by the court, but
that under the Constitution It is iMund by
events subsequent to the Declaration of Inde-
pendence, in ail that respects States, because
States were thereby created; then, even under
this motion to dismiss for want of jurisdiction,
th« bill must be dismissed.
Such la conceived to be the caae. The State
of Massachusetts malces no claim for herself
KDd admits none for Rhode Island, by force or
virtue of any grant, charter, or authority from
the British crown. Whatever might have lieen,
• 81*] in ancient times, the validity *of these
instrumenti of royal power, they ceased, at the
Declaration of American Independence, to
h«ve any judicial operation on the great cor-
porations or coloniea they had contributed to
establiah. Massachusetts, when she iMcame a
State, became so in the integrity of her whole
territory, as it was then poaseased by her,
whenever or however acquired, by grant, char-
ter, purchase, treaty, or force of arms, claim-
ing iier actual possession as the ultimate evi-
dence of right, and denying that there then
existed, or yet exists, any human tribunal that
oan lawfully inquire bow or by what means
thst possession was obtained; or that any au-
thority exists to determine the limits of an orig-
inal State of the Union, in any other way
than by deteiinining what it was, de facto, on
the 4th July, 177(1.
So far M raoBrda Qreat Britain and other for-
* It. ad.
etga natlona, the Treaty of Peace in 1783 aei-
tled the exterior boundary of the United State*)
but in what proportions it was owned by Um
thirteen sovereignties, then commencing a po-
litical existence, was to be adjuated by them-
aelves. This adjustment was a matter of
agreement then to be made, or to rest on tlM
fact of possession; which, admitting no higher
title, and capable of no higher proof, assumed
the right from the exercise of the right; and it
would now be as wise to inquire how the seven
Saxon kingdoms of Great Britain were estab-
lished, or to define the limits of the heptarchy,
as to attempt to decide what constitutes a State
of the American Union, beyond the fact that
BO it waa when the nation waa proclaimed in-
dependent, or the confederacy waa established
under tbe Constitution.
There have been many dscisionain this eonrt
aflirmlng the original validity of British grants
of land, and of government. It ia not proposed
to set up any principle militating with these
decisions. A careful examination of each of
them will show a distinction supporting the
doctrine now contended for.
Discovery or conquest are, no doubt, well
recognized titles, from which to deduce, ab
origine, grants of land, and pcditlcal govern-
ment. But these titles carry with them, by
their very terms, the idea of possession. The
discoverer or the conqueror, is the only person
in possession; and by force of his possession ao
acquired, he establishes a government, marks
out a territory, or conveys tnle to the soil. The
grant is a contract which the grantor cannot
vacate; but It was never doubted, although the
caae haa never come into judgment, that It
might be surrendered or abandoned by the
grants*. But a corporation, and much more a
colony so established by the 'right of [*68l
conquest or discovery, is not a private, but a
public, political institution.
To maintain that ft was Inviolable by the
crown, was tbe doctrine of the patriots of the
Revolution; but to deny to them the power of
abrogating, dissolving, annihilating it, Is to
bastardize the Revolution itself. If the Revolu-
tion did anything. It waa to cancel and annul
these royal charter*; and the aama right Ot
conquest, hj which the Kin^ of England ob-
tained power to make a political government
here, gave to the States the right to destroy It.
In the Dartmouth College case, 4 Wheaton's
Reports, SIS, the oul^ Important question was
whether the corporation then in question was
a publio or private corporation. It was admit-
ted that, in tiie former case, it was rcpealable
by the State. That a colony was a public In-
stitution, and partaking the character of a cor-
poration, is undeniable. Indeed, Massachusetta
was summoned into chancery as a public cor-
S oration in the year 1084, and judgment ren-
Bred to vacate and annul her charter. But
tlie Revolution, the Declaration of Independ-
ence, the formation of the Constitution of the
United States, are acts of higher authority
than the decree of the Lord Chancellor. They
dissolved the government of the colony, and
the colony itself.
The people thereafter elalmed and poasesaed
tbe country by a new title. Sovereign righta
were assumed by the States In their character of
public communitiaa, ffUiwitng the right of self-
SCFBEME COVn OF TBI UrITD SlATBi.
fovernmrat over the hII fhta ^B tbdr poHM-
aton; and the territorr now c)l^nied by Rhode
bUnd, whatever it waa before, then wai. In
fact and by possession, an integral part of Mas-
sachuBcttH. It wns tlie State, ae much aa Bos-
ton or S«Iem. All other titles merged, and th«
charter was at an end.
Neither can the State of Rhode Island claim
anything by virtue of a charter granted to the
Colony of Rhode Island by the English cronn.
Rhode Island, by her own act of independence,
vacated that charter, and remitted herself to
her better title of possession, by which she now
bolda the towns of Bristol, Warner, Barring-
ton, Somerset, Little Compton, Tiverton, and
the fine lands of Mount Hope and Poppy
Squash; a territory almost half her actual ex-
tent, aod unquei^tionably belonging to Massa-
chuaettB, aa part of the original Colony of
Plymouth, which was united in one colony —
Massachusetts— In ISQl. Baylie's Plymouth,
fart 4, p. 50; Morton's Memorial, 4B0. For the
npossibllity of being governed by the charters,
•83*] see 'Bsncroft's Hist, of U. S. 83, S4,
137, 13S, 209, SIO, SOS, 313, 384; Mass. Hist,
Soc. 1st vol- 205, 390, 418, 442; £d vol- i44.
Some qucBtiona may be proposed on this
subject relating to the rights of the complain-
ant under his assumed title, and the supposed
obligations to the respondent, which must be
answered before thia cause can proceed to hear-
ing and judgment.
Can a sovereign State be sued for acta done
in virtue of, or by claim of right in its sover-
eign capacity I If Massachusetts had marched
across the border supposed by Rhode Island to
be the true line, and, in a belligerent attitude,
talcen possession of the disputed territory; Is
sudi act within the cognizance of this court,
subjecting the State to action of tTeapaaB,quare
elauium Iregitt
If auch suit is maintainable, by what law Is
the action of the court to be regulated in cases
where the constitution lays down no rule of
proceeding, where the subject is not within the
scope of any treaty, and is not defined by any
statute law of Congress?
If a State may be made amenable to a judi-
cial court, is she to be answerable for the acts
of a colony to which she has succeeded T
If she is suable, haB the State sued, the com-
mon rights of other defendants, to plead accord
and satisfaction, arbitrament and award, title
by prewription, or the bar of any statute or
common law limitations T
U a State takes all the estate and appur-
tenances of its colony ancestor, to whom It
claims to succeed, is it what such colony had in
C session when it ceased to exist; or may it
claim to everything to which such colony
had a paper title, although disaelzed by the in
trusion of some neighbonni; State or eolonyl
If a State claims the rights of its colony an
cestor, by what rule of what law are such
rights to "be ascertainedr
If such rights are of real estate, will such es
tate paM to the colony In the first instance by
deed only, or by livery of seisin T
If the suit II for sovereignty or aovereign
rights, is there any title to such claim but poa
aession T
If, in the case of the South American prov-
inces, the (JnitAd State* delayed to aolmowledw
their IndapendeiMe and natlonan^, m Idng aa
there was a contest about it, and the pcieaeaiioi
was not secured; and if such be the prinHpIt
of the law of nations, is not the same doetnse
to prevail whether this sovereignty la eiainud
for the whole territory, or for a part of the
whole r
But the more significant question remaiaa.
Can the alle^ance of 'five thousand (*»1
American dtixena, natives of MassachuBetta,
and owing her the duties of citizens, or of csie
such, be changed by a decree of this court;
without their consent, without notice to then
to agree or disagree, as if they were aerfi on
the soil of Russia: hecauee one hundred and
twenty years ago, the prodigal monarch of
England put his signature to a piece of parth-
ment, to gratify the avarice or tlie amhatioa of
his courtiers t
The want of jurisdiction is furihcr maia-
tained by considerations applicable to this
matter, arising both before and sutnequent to
the decision of the controversy on ita supposed
The merits of any case depends oa the e««-
formity of a party's conduct to a previouslv
prescribed rule of law; but, if there be no and
rule, there can be no test of such merit, and pn
decision upon them. But, in addition to tliit.
a question arises on the form of process. Pi
what rule of law can a State be brou^t beforr
this court, and by whet form of ezecntian
known to the laws, can the judgment of thi~
court be carried into effect T
It ia undeniable that the power to direct th'
process, to declare its nature and cftect, aoi'
the mode in which the judgment of the eour<
ahall be executed, must be prescribed by th
lesiBlative department.
This may be done, posdMy, by Implkatioi:
or reasonable inference. It is certain no aui-h
provision is made by direct enactment. In tb<
case of New Jersey v. New York, S Peter?
461 ; 4 Peters, 2S4, where this matter has birii
considered, it is admitted that there is no dir^i
provision of law, hut the power to summons i-
made to rest on an analogy to individual anit
ors. That of execution is not at all conaidereJ
by the court.
Now, it is contended that the original ajia]<^
that wai supposed to exist between aorerrign
States and private citizens never did exist.
The Itth article of Amendments to the Coniti
tution has so declared- Before that ameod-
ment, and under the broad extent of power er-
roneously assumed by thia court, a State was,
indeed, but In the character of a private eor-
E oration; and it might well be thought, on tkat
ypotliesis, that the power to try a party by a
known rule of law. Involved the necessity of
havini^ the right to bring such party into coort
for tnal and judgment; and thst such power,
as it extended to reach other suitors, might also
reach States, between whom and other auitwa.
as the court construed the Constitution, there
was no difTeretace. In the opinion of tbe dis-
senting •judge, there was a difference; [*«S5
and when the eleventh amendment altpred tht
Constitution so that, to a great extent, this dif
ference is established, the consequenoe aeeou
legitimately to follow, according to the doc-
trines maintained by the dissentient
It ta now true that Statca wen onoe de*w4
VvtfM II.
Tbi 6tati w Ruodc Ibluid *. Thc Sr^n or KumAasnaxTtm. flW
not pannit a partj to tfty by mi waJt until tkt
subject of dispute bas acquired great vaIua,aBd
uitors, becaiiae there wai not recognised become connected with great interests and dl-
not now ordinar; suitors, and tlie process acts
teaching only to ordinary suitors, do not reach
The power of the courts of the United States
ta issue writs not specially provided for is lim-
ited. They are confined to such as arc eou-
fonnable to the principles and usages of law.
Judiciary Act of 17S0.
There are no principles of law, nieaning the
eommon law, or the statutes of the States, or
of Congress, that embrace a sovereign State.
There is no usage in such cases. On the con-
trai7, the usage is directly adverse. It holds
to the exemption of such parties.
This difficulty occurred to the complainants.
In 1S30 the senator from Rhode laiand, who
signed the bill as solicitor, in 1S32, introduced
into the Senate a iiU with minute provisions to
remedy the defect. It did not pass. Id 1828,
the senators of New Jersey Introduced a like
bill to prepare for the controvenv <ft that State
with New York. It was not adopted. Every
legislator who has been called to consider thii
subject, has admitted the defect of legislation,
8. Tliis court has no jurisdictioa, bMauM of
the nature of the suit. It is in its character
political; in the highest degree political;
Drought by a sovereign, in that avowed char-
acter, for the restitution of sovereignty. The
judicial power of the eovemment of the United
States extends, by the Constitution, only t«
cases of law and equity. The terms have rela-
tion to English jurisprudence. Suits of the
Kreaant Iiind are not of the class belonging to
iw or equity, as ■dminister'd In England^ 1
Black. Com. 230. 231; Z Vesey, Jun. GO, The
Nabob of the Carnatie r. The Eaat India Com.
Mny; 3 Vesey, 424, Barclay v. Russell; 1 Vesey,
Sen. 444, Penn v. Baltiniore, where the agree-
msnt, and not the political right, was ths sub-
ject of litigation. See Lord Hardwicke's opin-
ion; New York v. Connecticut, 4 Dall. 4. By the
Judiciary Act of 17BS, the jurisdiction of the
Supreme Court of the United States, where a
State is a party, is confined to casea "of a dvil
nature."
•80*] 'This qualification was not in contra-
diatioction to criminal cases, for no State could
ba prosecuted by another State, as a criminal.
It IS intended to have reference to cases not
political, or involving questions of sovereign
power between States. Wiscart v. Dauchy,
2 Dall. 3Z6. See. also. Drafts of the Consti-
tution, printed for the members of the conven-
tion, and for their use only, and thf
amendments made, and in manuscript
printed drafts. In the collection of the
ehuMtts Historical Society.
Tba eomplainant has no equity on his own
declaration. It is a stale demand, In the lan-
guage of the books; and the fact appearing on
the face of the hill need not be plcsided. Beck-
ford et al. V. Wade, 17 7eaey, Jun.; Story on
Equity, sec, 1620, and the notes; Mlddlecot v.
(yDonnell, 1 Ball & Buntty, 166j Hovoden t.
I^ifxl Annenley, 2 Scho. k Lcfroy; Paul v.
U'Namara, 14 Vesey, Jun. Bl; Gifford t.
Bart, 1 Scho. * Lafiaf. 406. Tbe court will
ff I>. od.
Ced relatione.
Again: if the parties are to be treated la tUs
court as indiviiliials or private corporations, or
even as States with only the rights of private
litigants, then the bill must be dismiased, be-
cause, if it seeks an adjustment of boundaries,
without claim to the soil, such a cause is no
subject of equity jurisdiction. Atkins v. Hatun,
2 Anstruther, 386; Pcnham ». Ucrbet.^Atkyns.
484; Welby V. Duke of Rutland, 2 Alkyiis, 3BIj
Wilier V. Smeaton, 1 Bro. Ch. Rep. UTi; Biahop
of Ely V. Kenrick, Bunbury, 322.
There is no such case in this country, nor in
England, for jurisdiction only between towns
If the boundary is ascertained, and the Je-
fendaut has encroached upon the comptaiQaot,
the right between individuals must be ascer'
tained in an action st common law, and not by
chancery; and the right must, in aU
. be settled at law, before chunccry can
adjust the boundaries. See the cases above
Tbe only title, in equity, to which tbe c
erally, hut intended to preserve family honor
and family peace. Let this be applied to the
lister State* in the great American family of
tbe nation. It will leave undisturbed and un-
changed, wfaat haa so remained fnr more than
a eenturv. Storkley v. Storkley, 1 Vcs. 4, B, 30,
*Mr. Eacaid, for the State of Rhode [*887
Island;
The merits of this motion, sir, might have
been more satisfactorily examined and dis-
cussed by the complainant's counaei, if we
could have had the motion, and the specific
grounds of it put into writing, as we were de-
sirous, and requested that they should be, but
without effect.
It does appear to me that a motion which
goes to cut off one of the moat important
branches of the jurisdiction of the Supreme
Court, exercised by it from Its first establish-
ment, and to deprive a party in court of the
benefit of that jurisdiction, and of her only
remedy for aggravated injuries (as she has a
right to insist in resisting a motion which
would deprive her of a bearing], that such a
motion, and the specific grounds of it, ought to
be presented in writing, with precision and full-
ness, and with adequate notice of them to the
opposite party, to enable him to meet them and
'.o know what he has to meet. But we are now
^o answer this motion, verbally made, snd to
seek for the grounds of it, as they are scattered
through a long and desultory argument, in the
course of which those grounds have taken so
many different shapes that it is not easy to
recognize them for the same, or to reconcile
them one with another. This being the case,
it la not surprising that thc counsel refused to
put the specific grounds of their motion into
writing. I have, however, endeavored to make
myself acquainted with the real question to be
decided; and, with permission, will now pre-
sent such views as I havs been able to take of
M7
SUPBEMK COUST OF tBK URITB) StAns.
im
tnKtter of, and over the partiM to the bill in
equity now pending before ilT &nd has the court
DOW power to proceed to the hearing and trial
of the cause, and to make a Rnal decree there-
in? If neither branch of tliis question can be
answered in the negative, tliere can be no good
grounds for the present motion, however those
gioundi may be shifted, or multiplied, or re-
peated. Allow me to consider the first branch
of the question. It is evidently purely a con-
stitutional question, arising under the Consti-
tVition, and only to be tried and settled by it.
Turning, then, to the Onatitution, we find it
there declared that the judicial power shall ex-
tend "to controversies between two or more
States;" and that in those cases "in which a
State shall be a party, the Supreme Court shall
have original jurisdiction." These
worda of the Cionstitution, and this '
troversy between two States, and the State of
488'J Massachusetts is a party to it; *and the
State of Rhode Island is a party to it; and this
controversy is now pending before the
Court. But it is contended by the counsel that
although the words of the Constitution do em-
brace this controversy, yet it is not within the
meaning and intention of that instrument; and
that It was the intention of its framera to ex-
clude such controversies from the jurisdiction
of the court. This is dealing with the Consti-
tution as Peter, Martin, and Jack dealt with
their fathert will. But as It is the only pre-
tention that could be set up against the consti-
tutional jurisdiction of this court, it is import
ant for us to inquire, strictly, what was the
meaning and intent of the framers of the Con-
stitution, in this respect. And here, fortunate-
ly, nothing is left to conjecture or tradition.
The explicit, unequivocal intention of the fram-
ers of the Constitution upon this subject la
matter of authentic public record. I beg leavs
to trace this constitutional provision for pre-
serving harmony smong the States from Its
origin. Before the Revolution, alt controversies
between the colonies or provinces, concerning
boundaries, were carried up to the king, in
council, and were by him settled. There was
one such controversy between these same par-
ties, Massachusetts and Rhode Island, and an-
other between Massachusetts and New Hamp-
■bire; both of which were so settled. Wlien
the SUtea asserted their independence, that
tribunal, ot course, was annulled. But the
new Stales felt the necessity of immediately
establishing, in its place, a competent tribunal
of their own, with full jurisdiction over those
dangerous controversies. And this they did in
the articles of confederation, the ninth article
ot which provides that "Con pre aa shall be the
last reaort, on appeal, in all disputes and differ-
encea now subsisting, or which may hereafter
arise, between two or more States, concerning
boundary, jurisdiction, or any other cause
whatever." Congn-sa to appoint judgps to con-
stitute a court for hearing and determining
those causes- "And the judgment and sen-
tence of the court to be appointed in the man-
ner before described, shall he final and conclu-
iive; and if any of the parties shall refuse to
■ubmit to the authority of sncb court, or to ap-
pear, or defend their claim or cause, the court
•hall, nevertheless, proceed to pronounce sen-
tence or judgment, which shall, in like man-
12«t
I ner, be final and deciilre; tb« fudgoKBt or mt-
j tence, and other proceedings being, in ritbet
case, transmitted to Congress, and lodged
among the acts of Congress, for the serurit; of
the parties concerned." And Congress did, ac-
cordingly, establish and organize the court
called the "Court of Appeals." "And ['•■•
that court took cognizance of, and decided a
number of jurisdictional controveraiea brtween
States; and among others, one In which MaMa-
chusetts herself was a party, and acknowledged
the jurisdiction ot the court, and submitted to
its decision. It must be recollected that the
territorial descriptions and boundaries eontaJBed
in the colonial grants and charters were necea-
sarity loose and defective, and that in the prog-
ress of tbe settlements, in adjoining colonies,
controversies must Unavoidably arise aa to their
respective limits. And the greater the ccrtajo-
ty of such conflicts, the greater waa the neces-
sity of providing an impartial tribunal for ths
peaceable adjustment of tbem. The language
of the ninth article, just read, is deacriptlve at
tbe state ot things at the time — '"disputes aad
differences now subsisting, or that may here-
after arise 'between two or more St«.tea, MB-
cerning boundary, jurisdiction," etc
The Court of Appeals retained and exercised
its jurisdiction over these controveraiea until
ths adoption of tbe present Constitution; wben
its place waa supplied, and tbe exigency pro-
vided for by the establishment of a national
judiciary, with full jurisdiction over the same
controversies. And, by tbe twelfth aection of
the "Act for regulating processes," etc., passed
in 1T92, it was enacted "that all the reecrdi
and proceedings of the Court of Appeals, here-
tofore appointed, prerious to the Adoption of
the present Constitution, ahall be deposited ia
the office of the elerk of the Supreme Omrt of
the United States, who is hereby authoriied
and directed to give copies of all such record*
and proceedings, to any person requiring and
paying for the same, in like manner as copies
of the records and other proceedings of the said
court are, by law, directed to be given; which
copies shall have like faith and credit as aU
'.her proceedings of said court."
The counsel of Massachusetts have expreswd
the idea that the United States came into exist-
1th the present Constitution, and that
Massachusetts, aa one of them, is bound by
I thing before that date. This is a strange
conception, indeed. Not only the States sev-
erally, but the United States, came into exist-
ence with the Declaration of Independence;
and the first of the articles of conf«derat>M
ordains that "the style of this confederacy shall
be tbe 'United States of America.' " It was
'to form a more perfect union," and (o
itrengthen tbe confederation, that tbe conven-
;ion was called which formed this Constitu-
tion- And here are tbe concluding words of
the resolution of the old Congress of I78T. rec-
ommending 'the call of the conven- [*•>•
tion: "For the sole and express purpoee cf
revising the articles of confederation," etc.
The convention met; and in revising the iai-
portant ninth article, changed the words, "dia-
pute and difference," to the word "controver-
sies," taking the words "between two or noct
States." as they found them in the artide.
The tribunal was, of courae, changed; for bo*
Peun 13.
issa
Tme State ur Khode Ihund v. Tue State of MAMAOHuarrm.
«■ independent judicial department wm eetab-
liabed, which had no existence under the con
fedention. Not deeming it proper, in a per-
manent ConBtitution, to designate par: .iilnr,
existing, end (it might be lioped) temporary
disputes between Ststee, they used the compre-
hensive word "controversies," oa fully includ-
ing them all- We do not know that there were
nny other controversies at the time, between
State*, than those sboiit boundary ; and if there
t>«te, they must have been com p:t rati rely un-
important; none other were so likely to exist.
or to be carried to extremities; and, therefore,
the article, after the words, boundary and ju-
risdiction, merely adds the genera) c^prr^ision,
"or any other cause whatever," njipariTtly by
way of precaution. The di'loffalpj fjom the
Bcveral States knew that a numl»er of thotsL'
State controversies then still existed, and that
more might arise, and they were fully sensible
bow all -important it was to provide against
th«ir breaking out. The great object of the
convention was |aa expressed in the preamble
to the Constitution) "to fonn a more perfect
union, establish justice, insure domestic tran-
quillity, provide for the common defense, pro-
mote the general welfare, and secure the bless-
ings of liberty to oursi'lves and our posterity."
And how was union to exist? — how domestic
tmnauillity, amidst contention among the
memiiersT How was justica to be established,
if the strong were permitted to give law to the
weakr and how were the rights of individual
States to be preserved, if left unprotected from
the encroaehments of stmnijer neighbors T and
vbat would become of the harmony and inte;;-
rity of the Union, if all its members were nut
protected in the enjoyment of their equal rights I
But, in addition to all this, it ia a remarkable
fact that this very question of jurisdiction
which Massachusetts now brings up, after the
lapse of more than half a cen''iry, was directly
acted upon and derided by the convention
itself; as appears from the records of ils pro-
ceedings. l>uTing its deliberations, the ques-
tion was distinctly brought up whether eon-
tnveraies between States, coneerning jurisdic-
tion and boitndurics. should not be excluded
from the jurisiliction of the courta. And the
convention decided that they should not be
• •!*] 'excluded. And the provision in
the Constitution, aa it then was and still is.
was retained; and this Constitution was unani-
mously agreed to by all the delp(;sles. And
afterwards, the same question van discussed in
the State conienlions, and this provision was
•till retained and approved of, and the Consti-
tution ratilied by everj State. And aeveral
yean afterwards, when the eleventh amend-
ment to the Constitution was adopted, and
cults "against one of the United States by
citizens of another State, or b; citizens or
subjects of any foreign state," were excluded
from th« jurisdiction of the courts, the
remainder of the provision, giving juris-
diction over controversies between two or
more States, was preserved untouched; and the
States thereby manifested their continued ap-
frobation of that provision ; and, accordingly,
his question of jurisdiction has long been set-
tled in this court by its uniform practice and
doclsions, in numeroua eases from its eorlieat
rstablishment.
• li. ed.
And now, what is it that MasBachusetta ha*
10 sny to ail thisT I beg the eourt to consider
whether every single objection, and the whole
argument on her p^irt, have not been objections
and arguments against the Constitution itself,
rather thiin a^'ainst the constitutional juritdic-
l.ion of the court! In opposition to the Consti-
tution, they come armed with political axioms
and abstract theories of government, and with
the aid of Montesquieu and other learned writ-
ers, reason upon the science of government,
and the distribution of appropriate power*
among the three great departments.
Allow me, sir, to present a summary of the
principal objections and positions upon which
the counsel of Massachusetts appear most to
rely. They lay it down that a controversy
1>etween States, concerning jurisdiction and
boundaries, is political, not judicial, in its
character; that judicial courts can take cogni-
zance only of controversies strictly judicial, not
political, in their nature; that the present con-
troversy concerns jurisdiction and sovereignty,
and is therefore out of the judicial jurisdiction
of this court, and cannot be acted upon by it,
without the assumption of political power.
And, in support of their doctrine, the counsel
have read a number of English cases, and the
opinions of learned English cbancellore. And
what doea it all amount toT Does it amount
to any more than the plain, self-evident propO'
sition, that courta created by sovereign power,
and aubordinate to it. cannot exercise juriadic-
tion over sovereign power, nor interfere with
ita prerogatives? Ijct us see if this is not the
whole substance of the doctrine. In illuatra-
tion of their 'doctrine the counsel have ['CSS
referred to the controversies iKtween the col-
onies concerning their boundaries, and over
which the English courta exercised no juris-
diction. And why did they not I It was be-
izause there was a hipher tribunal, which the
colonies appealed to. The jurisdiction, in those
caees, was in the king himself. He made the
colonial grants, and pnve the charters; reserv-
ing in them all allegiance and fealty to him-
aeif. He appointed the colonial governors, not
excepting the Governor of Massachusetts.
Rhode laland almost alone elected her own
governors. He, the king, therefore claimed
and exercised jurisdiction over the colonies, oa
tbeir feudal lord. But, hod he so pleased, he
mijjht have transferred his royal jurisdiction
over those controversies to any of hii courts.
And had he done so, those conlroversieg, what-
ever their character, and by whatever name
called, political or civil, would have become
the proper subjects of jmlicial investigation
and decision. Another case, much relied upon
by the counsel of Massachusetts, was that of
The Nal)ob of the Carn.itip v. The East India
Company; of wbirh rnse the Court of Chancery
declined taking Jurisdiction, becanpe one of the
parties was a sovereign prince, and the other,
although subjects of the crown, acting by virtue
' its clisrtcr as an indepL'ndent State. It
ns tii'il, in this instance, the charter of the
pany had placed it above the law. But sup-
pose Ihnt ita charter had subjected it to the
juri^rliitirin of the court of equity, in any con-
trovi rales it might huve with any of the aur-
rounding princes, would the character of the
portiea (the foreign prince aasentinii to Ihc ju-
1343
OM' SuPBBiiK CoUBT or t
riadiction) or the nature of the eontroTeny,
have formed aoy obatMie to the ex~~"~~ ~'
that jurisdiction t And would not the
of It nave been strictlj judicial in it » character T
The BBme plain principle! of exposition em-
brace and dispose of every case and instance
which tlie eouoBel have brought, or can bring
in support of their doctrine. All these easea
are governed by the peculiar institutions of
England, and the structure of her govemoient,
in it« various branches. No such question as
thia, of jurisdiction in contTOversies between
two States of this Union, ever could arise in
the English courts. If this jurisdiction la vested
in the court, by the Constitution, how pre-
poaterouB is it to talk of the nature of the con-
tioversy, or the character of the parties! Svip
pose the controversy is political in its nature:
what then?— Is there ftiiy reason in nature why
it should not be subjected to judicial investiga-
tion and decision, aa much as any other contro-
versy T Suppose the parties to it are two
e»S'] 'Slatesi what theni— Is there any
reason in nature why they should not be gov-
erned by the laws and principles of justice, as
much aa any other partieal All controversies,
whatever their character and whoever the par-
ties, if they are ever settled, and the parties
will not settle them amicably, must be settled
cither by force or by the judgment of some
tribunal. When the controversy is between
•overeigna, the sword is the last resort, the
ultima ratio regum, and the contest is waged
at the expense of the blood and lives of their
■ubjecta. But if the controversy is submitted
to some independent tribunal; that tribunal,
call it by whatever name we may, must act ju-
dicially. It is not in my power to perceive how
the sovereignty of Massachusetts is concerned,
as she alleges, in the settlement of this ques-
tion. Even absolute sovereigns have submitted
their controversies about territorial limits to
independent tribunals, and no one ever im-
agined that the sovereignty of either was af-
fected by their doing so.
But M aE sac hu setts is not now possessed of
unlimited sovereignty. All the States, when
they ceB<>ed to he colonies, became sovereign
and independent. But they were ail sensible
that they oould not remain so if they remained
disunited. They knew that it was by union
alone they could preserve their liljerties. They
did unite, and, to secure their great object,
they established this limited government of
the Union, investing it with a portion of their
State powers, and at the same time restricting
themselves in the exercise of certain other
powers. Thus, both the federal ^vernment
and the State government are but limited gov-
ernments, both equally liound by the Constitu-
tion; and all acts of either, violating the Con-
stitution, are void. And it is the constitutional
province and duty of the court to declare such
acts void, whenever the question of their con-
stitutionatitj comes before It.
For in the formation of this federal repub-
lican system, an independent judicial depart-
ment was deemed to be a necessary branch of
the government, to prevent encroachments,
and preserve a just equilibrium; and there-
fore the Constitution declarea that "the judicial
power ihsll extend to all eases in law or equity
krising under this Oonitltution." And •vary
»»« '
t UNim Stateb. im
decision of tbs court upon th| BonatitntlottaBtj
of an act, either of Congress or of a State kgb-
lature, concerns, to use the language of Ifaasi-
chusetts, their respective jurisdictioas. Horn
al>surd, then, is it, to contend that the judknal
power does not extend to political queatioaa,
or to questions in which the Juriadictioa
*of a State is concerned. The only ['fllJ
Juestion here is, whether the Statea, by tbi
onstitution which they formed and adopted,
did confer this jurisdiction upon the Suptona
Court. And is it not amply shown that thej
did confer It, and that the; explicitly dedanc
it to be their intention to confer it?
And is it for Massachusetts to gainsay thiil
Massacbueetta possessed a larger shure of sov-
ereignty under the confederation than she does
under the present Constitution. Yet she then
agreed and assisted in constituting the Court of
Appeals, with full judicial paw era over this
very controversy; which was one of the then
subsisting controversies concerning State bound-
aries and jurisdiction, specified in the Mh
article. In the convention, also, which formrd
the present Constitution, Massachusc-tta agreed
to invest this court with the same jurisdiction
And again. In her State convention, wUcli
ratified the Constitution, she approved of and
adopted this provision. And, during all Ihit
period of time, Massachu setts had lubMatini:
controversies with her neighbor Statea "oneern
ing her territorial boundaries and jurisdiction -
particularly this controversy with Rhode lalaml
and another with the Stste of Connecticut, o'
precisely the same character; wltich last wa<-
not terminated until the year IBOl. Massachu
setts, therefore, by her own consent and act"
gave jurisdiction to this court over the pr«seri
controversy, aa far oa her consent and act-
could give it.
Taking it, then, for granted, that it is Ml}
shown that "this court has jurisdit^tion oWi
the subject matter of. end over the parties ti:
the bill in equity now pending before it," I will
proceed to the consideration of the 2d que*
tion: "Has the court now power to proceed tu
the hearing and trial of this cauae, and lu
make a final decree thereon!"
Hr. Justice Barbour asked Mr. Hazard if
he could point out any process by which Un
court could carry a final decree in the cause in-
to effect, should it make one. For instance, if
application should be made by Rhode Islaad
for process to quiet her in her posaeaskiD.
what process could the court issue for that
purpose T
Mr. Hacard said that he had by no mesm
eriooked that important question, but had
ven to it the fullest and most attentive eoi-
leration in his power. But be had thotight
that it would be proper to reserve that ques-
tion for the last to be considered, aa in point of
'order it appeared to be. At present, he [*«f&
was desirous of showing that the court had
full power, and ought to proct-ed to the bc&ri^
. ._ _._,. _ f^J^^] decree in the cause.
ibjed
matter and over the parties, and the parties an
icre before the court. The defendant Stst*
ibeyed the subpoena issued from the court, ani
lame In more than three years ago, and took
ipon herself (he defense of the suit, and pot ■■
18311
TuK Statx of Rbok ISLAXD i
Tbb Sta-r or Hasi
n-ra.
her plea unci aniwrr th^'reto. At another term,
■he ■pplird ti> the court for an order upon tlie
camplainant to replf ; iind, at the last tei
made a written agreemeat with the poi ,
BBt reapecLing ampiKimcnta of the bill and
pleadings, and she is now here in court. What
la there to binder the cKuae from proceedi:
Why, it ie contended, in the first place, that
consent of one party cannot gire jurisdiction
the court, and autliorities have been read
this efTect. No one doubts that when it sppei
bf the record or otherwise that the court has
no Jurisdiction of the subject matter of the
eomplHint, the consent of a party cannot confer
jnrUdictiun. But when the court has juris-
diction of the subject matter of the suit, the
party defendant can consent to appear, and
appearance is conclusive upon him; even
though if be hud not appeared, he might not
have been reached by the process of the court.
"The appearance of the defendants to a foreign
attachment in a circuit court of the Unitad
States, In a circuit where they do not reside, is
a waiver of all objections to the nonservice of
process on them." Pollard r. Dwight, 4 Crauch,
i-2l. "An appeersnce by the defendant cures
all antecedent irregularity of proceaa." Knox
*. Sommers, 3 Crunch, 490.
Rut hlasBBchusetts has raised a ntunber of
other ol>atscles to the court's proceeding to a
hearing of this cause. The following, I be-
lieve, contains the substance of them all:
They are, 1- That the sole province of the
court is to expound and administer the law,
and that here is no law for the court to ex-
pound or administer. That Congress has passed
no act dcQning the controversy; no act pre-
scribing the rule by which to try it; no rule of
decision. 2. That by the 13th section of the
Judiciary Act of \760, Congress has limited the
jurisdictjon of this court, where a State Is a
party, to controveialea of a civil nature, which
this controversy is not, being political in its
character; and that, therefore, Congress meant
to exclude controversies of this character from
6SC*] the 'jurisdiction. S. Congress has passed
no act providing the process necessary to enable
the court to exercise its jurisdiction in the case,
4. That the court possesses no power to carry a
final decree in this cause into effect should it
niake one; Congress, as !■ alleged, having
made no lew to enable It to do so.
The last of these objections, I will consider,
Firesently, by itself. And as to the rest of tbem,
f Ihis doctrine is to prevail, what becomes of
the jurisdiction expressly vested in the Supreme
Court by the Constitution itself, and what be-
comes of the court itself if It is to be placed
upon the same footing aa the inferior courts,
wliich Congress has power to establish, and of
course, to regulate I By the 6th section. 1st
article of the Constitution. Congress has power
"to constitute tribunals inferior to the Supreme
Court." But the Supreme Court was ordained
by the Constitution itself, and necessarily pos-
sesses all the judiirial powers incident to such a
FOurt. Otherwise the Constitution might be
defeated, and the Supreme Court rendered a
nullity by the act of another and but co-ordi-
nate branch of the government. But Congress
haa no power to deprive this court of Its con- j
atttutlonal jurisdiction, nor to restrain it in the
exercise of that jurisdiction. And tbia wuii '
• li. ed.
would declare unconstitutional and vtaA anj
act of Congress having such an object.
The case of Martin v. Hunter's Lessee haa
been referred to, and much stress put upon
some general remarks of Mr. Justice Story, who
delivered the opinion of the court in that case.
Those remarks were concluded in the follow-
ing words, which were not read, but ought to
go with them: "We do not, however, place
any implicit reliance upon the distinction which
has been stated and endeavored to he illus-
trated." But what shows conclusively that tha
counsel are wholly mistaken in their under-
standing of the meaning of those remarks, Is
the fact that in the case of New Jersey v. New
York, which was before this court fifteen ycara
after that of Martin v. Hunter, the court, of
which that honorable judge was one, not only
took jurisdiction of the case, although the
State of New York had refused to appear, hut
decreed and ordered that the subpoena in this
ease having been returned executed sixty days
before the return day thereof, and the defend-
ant not appearing, the complainant be at liber-
ty to pro;:eed ei-parte.
But it ia wasting time, I fear, to dwell upon
such objections, when it haa been so clearly
shown that these cases were expressly and in-
tentionally included in the jurisdiction of this
court by the Constitution. *I was quite [*ff9T
at a loss to understand what was meant by "a
rule of decision; a rule to try the case by;" un-
til the counsel enlightened me by inquiring how,
without an act of Congress, the court was to
ascertain which State was right, and which
wrong; alleging that, there being no auch act,
the court could not proceed by the rule of the
common law, or that of the civil law, or of any
Slate law.
a novel idea. Such an idea was quite
beyond the conception of the men who framed
the articles of confederation. It did not enter
into their heads that anything more was neces-
iry to be done to meet the exigency than to
itablish a competent court, with sufhcient
, iwers to call the parties before them, and to
try and determine these controversies in the
manner as they would any other contro-
I between any other parties. And it
that the Court of Appeals, thus constitu-
ad the same idea of its province and
duties, and found no difficulty in performing
them; governing themselves by the principles
and rulea of justice, equity, and <;ooLi conscience,
and not dreaming that any different rule was
furnished by the common law, or the civil law,
■ by any State law.
The 34th section of the Judiciary Act baa
been turned to again and again as showing that
Congress had furnished a rule of decision, as it
is called, in cases at common law, hut no such
rule for cases like the present. This is making
a atrange use of that short section of four lines,
the whole purpose of which is to give efficacy
to the local SUte laws in trials at common law,
n the courts of the United Stales, "in cshs
where they apply," says the section. That is,
that cases arising under a local law shall be
governed by that law. Thus, the State laws
regulating the descent of real estates, or the
rate of mtereat, for instance, oiifrht, in all
courts, to govern the cases arising under those
laws. And tUa is the wliola meanias of the
7S 124*
BuFUifi CouK of TH> Unm Siatcs.
wction. Tbe couniel litT« eoatendcd thit if
kny suit at all could have b«ea inttituted by
Rhode Island, it oiaght to baTc been a auit at
common law and not in equity. But no State
law could apply to such a auit any more than
to the present; and there are very many suits
at common law which are not gavemed by any
SUte law.
An ezprearion [the word "civil") used in tb«
13th section of the same act is also suspected
by the counsel, of containing an important
•ecrut meaninK, which the counsel think they
have discovered. They insist that by the use of
tliis word "civil," Congreas intended to take
this controversy, and alt of the same kind, out
• 98*) of the juriadiction of 'this court. Sure-
ly, the counsel of Massachusetts must feel
themselves under the necessity of going a great
way for inferences, and set a sreat value upon
very alight ones, to draw them from such
sources as these. The words relied upon are
that "the Bupreine Court shall have exclusive
jurisdiction of all controversies of a civil na-
ture, where a State ia a party," etc.
The plain object of Congress was to with-
hold from the inferior courts jurisdiction in
controversies between two or more Statea. And
to do this, they gave to the Supreme Court ex-
clusive jurisdiction In those cases, instead of
original jurisdiction merely, which it had by
the Constitution. The word "civil" ia properly
used, because all controversies which do or can
exist between two or more Statea, must be of a
civil nature, and none other; unless they engage
in war, which they have bound themselves by
the Constitution not to do. The word "civil
does not mean amicable or peaceable; actions
of trespass and of ejectment are civil actions.
"Civil" is technically and (generally used in con-
tradistinction to "critninal." There ia not the
slightest ground for supposing that the word
"cWil" was intended tc be used in coutradiS'
tinction to "political." Congress would never
hava taken so blind a way, so unintelligible and
futile, to effect such an object aa the counsel
of Maasachuaetts wish to effect. Nor can any
■uch distinction be made. If this is a political
controversy, so ia it a civil controversy. And
If such a distinction could be forced upon the
words, it would bring the section to thia con-
struction: that the court is left to its original
jurisdiction derived from the Constitution, in
this and other like controversies between
States, but doea not take exclusive jurisdiction
of them by virtue of this section of the Judici-
ary Act.
But there Is another word in the front part
of this section which, in its plain, common
•ense meaning, I think, is much more signifl-
eaut than the word which the counsel have en-
deavored to render so cabalistic. And that ia
the word "all"— all controveraies. This aame
word, used in another place, lias been thougiit
all -Important, and great respect has been shown
to It by the counsel of Hassachuaetta. By the
Constitution, "the judicial power ahall extend
to all cases in law and equity, arising under
this constitution," "to all cases affecting am-
bassadors," etc., "to all caaea of admiralty and
maritime Jurisdiction, to controversies to which
the United Statea shall be a party, to contro-
versies between two or more States," etc., etc.
And because the repetition «f the w«rd "«U"
tut
confer *a leas extensive juriBdicti<m in [*<•■
some of the cases enumerated than in otlwn.
Now, Congress, in framing the Judiciaiy
Act, did not deal in such far-fetched inferencca.
Congress san no such meaning in that sectiiw
of the Conatttution; and therefore it declaiei
in thia same 13th seetioa of the act that "the
Supreme Court shall have exclusive jurisdic-
tion of all controversies of a civil natura, wlurt
a State is a party." Congreaa did not intead
to alter the Constitution. It merely i' ipi f sitil
what is understood to be the tneaning of the
section referred to. Now, although I have no
quarrel with the word "civil," I ^ould not be
willing to give the word "all," in exchange
for it. But, sir, why is it that so much effort
ia used to induce this court to believe that Cdb-
greas ia unfriendly to its jurisdiction over these
cases! Thia is not very lawyerlike, nor very
respectful to the court. Thia court will look
for ita constitutional powers to the Constitu-
tion itself, and wilt not allow any other de-
Cartment to construe that instrument for thtn.
1 many cases this court have accurately de-
fined, not only in ita own constitutional powm
and duties, but those of the other departmoits,
legislative and executive, aa by the Ctmatitn-
tion it is authorized and bound to do on pn^.
occasions. And, let me ask, if Congress pottcf
ses such power over the jurisdictiiHi of t)u>
court, why was it necessary for the States
themselves to make the eleventh amendmeal
to tbe Constitution, for the purpose of taluug
away the jurisdiction in suits "against one of
the States by citizens of another State, or bj
citizens or subjects of a foreign state I" But. it
is not true that Congress is unfriendly to Ihit
jurisdiction. There is no sin^e iastance in
which Congress liss manifested such a disposi-
tion. On Uie contrary, in this same aection al
the Judiciary Act, we find it eouferring ei-
cluaive jurisdiction, where, by the Conititutioa.
the court had only original jurisdiction. Aad
without any appearance of disapprobation, Ooa-
gresB has seen this court, from its parlieat es-
tablishment, exereising its conatitutloosil pav-
ers ill these cases, and in others in wbick
a State was a party; adopting its rulea of prac-
tice and proceeding, and ita general, permaaeat
orders spplicable to them; and prescribing iu
proceaaei, and tbe service and return of tl«a
as occasion required.
The third objecUon Is that Congreaa hsi
provided no forma of ponera to enable tbt
court to exercise its jurisdiction. Thia ohjct-
tion, I should think, was reduced to a verr
small size. The writ of subixEna waa issued,
served and returned agreeably to the geacnl
order *of the court. And the defend- [*'M
ant State obeyed that process and appeand,
took upon heraelf the defenae of the auit ; and 1
understood her counsel to say that he sboeU
not urge any objection to this proceeding tl
the court. And, if Masaachusetta bad n-
fused to appear, the court would have had it
fully in ita power to have proceeded in tkt
cause, as it did in that of The State of Si*
Jersey v. The State of New York. But llaMs-
chusetts has appeared, and ia now ia ttmt-
Wbat further process, then, ia now wantioc H
enable the court to proceed to the beariig ^
PMenlfr
Thi SrAit *» Rhodc lauim j. Tax Si*tt or UuuoBtnRtg.
Um eaoM. I know of nooe. Tet the eonnMl of
IfMMtchuMtU Btm iaaiat that the court cannot
|D <m A itep without mn met of Gongreu. Let
nu then inquire, I. What ht* been done bj
OodgraM upon thia rabjaotT SL What ha« beeii
done by the court r
1. A Judiciary Act waa paucd in 1TB9, at
the flrtt SMslon of Oongreu, and a Ptoccbb Act
ftt the aame aeaaion, whioh, with many addi-
tions, waa rendered permanent by a leeond
Process Act passed in 1792. The 13th section
erf the Judiciary Act, which give* exclusive
JnnsdictfoD to the Supreme Court in these
cases, has already been read. The 14th section
emacta "that all the before mentioned courts of
the United States shsil liave power to Istue
writ* of scire facias, habeas corpus, and alt other
writa not especially provided for by statute,
which may be necessary for the exercise of
tbeir respective jurisdictions, and agreeably to
the principles and usages of law." The ITth
aection enacts, "that all the before mentioned
eourta of the United State* shall have power to
make and establish all necessary rules for the
ordinary conducting tnisiness in said courts,
Erorided such rules are not repugnant to the
iw of the United States." The Proeesa Act,
1st section, enact* that "all writs and proeease*
iesuing from a supreme court or a circuit court
■hall bear test," etc., and shall be signed by the
clerk, and sealed with the seal of the court."
The Sd section enacU "that the forms of
writs, execution*, and other process, their
■tyle and the forms and mode of proceeding in
■vita in those of common law, shall be," etc.,
*^d in those of equity, and in those of ad-
'ntralty and maritime jurisdiction, according to
the prindple*, rules and usages which belong
to court* of equity, and to court* of admiralty
respectively, aa contradistinguished from
eourta of common law; except so far as may
have been provided for by the act to establish
the Judicial court* of the United States; sub-
ject, however to such alterations and additions
«B the said courts respectively shall. In their
discretion, deem expedient; or to such regula-
701*] tlons as *tfae Supreme Court of the
United State* shall think proper, from time to
time, by rule, to prescribe to any circuit or dis-
trict court concerning the same." The 18th,
24th and 26th sections of the Judiciary Act,
first referred to, recognises the power of the
court to issue execution* upon its judgmenta
Knd decrees.
Tbns much has been done by Congress, and
It i* apparent that that department has always
considered that everything had been done, on
ita part, necessary to enable the court* to per-
form all their judicial duties, and fnlly to ex-
orcise all their judicial functions and powers,
OonfTeas saw that the courts were proceeding
In toe exercise of those powers without diffi-
onlty or impediment, and that no further leg-
UatiT« action wa* called for or needed. And
■0 have the court* thou^t. In the caae of
Weyman v. Southard, 10 Wheat. I, the court
it to their final termination
by satisfaction of the deernea or Judgments.
It ha* been suggested by the defendant'*
eoniiMl that Coitn-esa has mnitted to provide
for the exerda* trf this hraaoh of the Jurisdic-
• ii. od.
tion of the court, because It did not intend that
it should bs exercised. This is impeaching the
fidelity of Congress to the Constitution. But,
fortunately, the imputation is wholly unfound-
ed. It is alleged, also, that Congress, by the
Judiciary Act of 1786, has provided rules of
proceeding in all, or nearly all the ordinary
cases which can arise at common law, or in ad-
miralty, bnt none in such case* a* this. Thla
ia as palpable an error as could well be eom-
mitted. In the ease last mentioned, Weyman
V. Southard, which wa* a ease at common
law, objections were made to the process, and
to the service and execution of It; and it was
contended that the proceedings were not au-
tboriied by any act of Congress. But the court,
after remarking that the chancery power of
the court over all the proceedings in suits in
equity, from their commencement to their final
termination, were unquestionable, proceeded
in these words; "It would be difKcutt to as-
sign a reason for the solicitude of Congress to
regulate all the proceedings of the court, sit-
ting as a court of equity or of admiralty, which
would not equally require that its proceedings
should be regulated when sitting as a court of
common law." Thus we find that while the
equity powen of the court in these cases is
considered as hsving been placed beyond a
doubt by the acts of Congress, ita parallel pow-
er*, in case* at common law, have required to
be *u*tained by inferences and reasoning. And
*it was decided in the last ease referred ['TOI
to, and in that of The United States Bank t.
Haletead, 10 Wheat. M, that these powers
are not legislative in their character. They
must, then, be simply Judicial in their charac-
ter; and. If necessary, must be incident to the
judicial powers and functions.
Let me now inquire what has been done by
the court in pursuance of it* constitutional and
legal powers. In 1791 the court adopted the
following general order, vis.: "That this court
consider the practice of the Court of King^
Bench, and of chancery, in England, as affo^-
ing outlines for the practice of this court, and
that they will, from time to time, make such
alterations therein as circumstancea may ren-
der necessary." 1 Cond. Rep. 8. In 1796 the
following permanent general orders, or rules,
were established, via.; "1. Ordered, that when
process at common law, or In equity, shall is-
sue against a State, the aame shall be served
upon the governor, or chief executive magis-
trate, and the attorney -general of such State.
2. Ordered, that process of subpcen* issuing,
out of this Dourt in any suit In equity, shall be
served on the defendant sixty days before the
return day of the said procesr: And, further,
that if the defendant, on such service of the
snbptena, shall not sppear at the return day
contained therein, the complunant shall be at
liberty to proceed exparte." 3 Call. 820; 1
Peters's Cond. Rep. Ul. These several gen-
eral orders, or rules, are still in full force, and
have been practiced upon by the court from the
time of their adoption. Can there be a doubt
that they are strictly in conformity to the Con-
stitution and the acts of Congress referred t«J
In the case of The State of New Jersey v. The
State of New York, 5 Peter*, in 1831, the oonrt
remark that "at a very early period of our Ju-
dicial history, niita wen butltntad in this oonrt
llSl
TOS
Sin-IUtB (JOUBT OF THK UHITID SlARa.
«ig)Unst Statei, and the questions concerning iU
juriadiction find mode of proceeding were nee-
«uarilf considered." The court then proteed
to review a number of the preceding coses
which had been before it, in whi>;h a Stale was
B party. "So early as August, 1792 (says tba
Chief Justice, who delivered the opinion of the
court), an injunction was awarded, at the pray-
er of the State of Georgia (The State of Qeorgia
V. Brailsford, 2 Ualt. 402), to stay a sum of
money recovered hy Brailsford, a British sub-
ject, which was claimed by Georgia, under her
act! of confiscation." This was an exercise of
the original jurisdiction of the court, and no
doubt of its propriety was ever considered.
In February, 1793, the case of Oswald v. The
70S"] State of New Yorft 'carae on (2 Doll.
402). This was a suit at common law. The
State not appearing, on the return of the proc-
ess proclamation was made, and the fallowing
order entered by the court; "Unless the State
appear by the first day of the next term, or
show cause to the contrary, judgment will be
entered by default against the said State." At
tha same term a like order was made in the
case of Chisholm's Executors v. The State of
Georgia, and at the next term (17D4I judgment
was rendered in favor of the plainliffs, and
a writ of inquiry awarded. Grayxon v. Tin.'
State of Virginia, 1706, 3 Dall. 320; 1 Peters'^
Cond. Rep. 141. This was a bill in equity,
and it was in this case that the court adopted
the two last general orders before mentioned.
In Huger v. Tlie State of South Carolina tiic
service of the subpcena having been proved.
the court determined that the complainant was
at liberty to proceed, ex-parte. He accordingly
moved for, and obtained commissions to take
the examination of witnesseg in several of the
SUtea. 3 Dail. 371; 1 Peters's Cond. Hep.
166. The court also noticed the cases of Fowler
et aL V. Lindsay et al,, and Fowler v. Miller, 3
Usil. 411; 1 Peters's Cond. Rep. 160, and the
case of The State of New York v. The State of
Connecticut, 4 Dall. I; 1 Peters's Cond. Rep.
203. "It has then." proceeds Chief Justice
Harshall, "been settled by our predecesaors,
on great deliberation, that this court may ex
ercise its original jurisdiction in suits against a
State, under the authority conferred by the
Constitution and existing acts of Congress.
The rule respecting process, the persons on
whom it is to be served, end the time of serv-
ice are fixed. The course of the court,
on the failure of the State to appear after due
service has been also prescribed." And, ac-
cordingly, the court did proceed, and made the
order; the Brat part of which has already been
read, and which order thus concludes: "And
it Is further ordered tliat unless the defendsnt.
being served with a copy of this decree sixty
days before the next ensuing August Terra of
this court, shall appear on the second day of
the next January Term thereof, and answer the
bill of the complainant, this court will proceed
to hear the cause on the part of the complain-
ant, and to decree on the matter of the said
bill." But, before t'..« cause came to flnsl
decree, tha State of New York comprooiiHcd
the controversy with the State of New Jersi?} ,
t«> the satisfaction of the latter State. The case
now before the court h the same, in character,
•nd in all the piindplea involvad in it, a* that
of New Jersey and New York. "VTij t»7«t
should not the court proceed in this ease aa
thpy decided to procenl in that, and in eea
furmity to its subsiattng rules and orders f
With permission of the court. I will now
proceed to consider the last objection which baa
been raised by MasFachuBftta tu the juriadietiaB
of this court, and upon which she appeals maia-
ly to rety for producing an elTect upon tha
minds of the court. That objectioo is thst
should the court make a final decree in tte
cause, it will have no power to carry it ials
effect.
When the clear and explicit provisions of the
Conatitulion are considered, and the aevcrHl
laws subsequently pHssed by Congreaa for the
purpose of aiding in the fulfillment of those pro-
visions, I cannot cenceive how any doubt tan
exist of the power of this court to carry into
effect any decree which by those provisions it
may be authorized and bound to make. And,
if the Constitution stood alone, I should still
entertain the same opinion. It is an uuiveiwi
axiom that the grant at a principal powpr. ipso
facto, includes in it all the minor, subsidiary
powers necessary for the exercise of the main
power, as incident to it. What a construction
would it be to put upon the Constitution to say
that the people, hy that instrument, had or-
dained and established a tribunal to take cog-
nizance of. and determine certain enumerativa
controversies, over which, for that purpose,
they had given to it full and express jurisdic-
tion; but that the tribunal so established cuuld
not perform .its duty, for want of power to
cause its decisions to be carried into effect*
What would the people have a right to say to
a. tribunal which ehould render to them such
an account of ita services, or, rather, such an
excuse for the neglect of its duty?
But it ia not important herv to inquire wlietb-
er, in considering the present question of ju-
risdiction of this court to bear, try, and mske a
final decree in this cause, can be at all neces-
sary or useful to inquire wiiat further power*
the court may or may not eM-rcisf upon any
future, distinct application, wliicli may or msy
not be hereafter made to the court; and upon
which new and distinct application, should aoj
such be made, the court will then decide a* h
shall deem right. If, by the Constitution sad
existing laws, the court have jurisdiction oiei
this cause to hear, try, and decide it. is it ast
bound to exercise that jurisdiclion when s^
pealed to; and ought the court to drrline eitr-
cising this unquestioned juriadittion. from sa
nppreheneion that possibly, it may. hT<-aftci.
lie asked to do something more, nliicli. poni-
bly, it may not have it in its power to doT 1>
•the case of New Jersey ». New York, [•!•»
the court said thst, "inasmuch as no flnai de-
L'ree hos been prououni^ed, or judgment rvnderei
in any suit heretofore instituted in this court
against a State, ihe question of proi.-ecding lo s
final decree will be considered as not conclusitf-
ly setlled, until '.he cause shall come on lo b*
liesrd in chief." Thus the court delermine-i Is
liesr Ihe Cause in chief, without anliripaiiaf
what its final decree might be; uiiioh less, whsL
if anything, might remuin to be done after thi
decree. And the court did thrn decree "tksl
the complainant be at liberty to proceed «■
parte;" and further decreed, that, "unlcM tks
■•ctcn IL
t83S
Taa Staik u
RuuDE Island v. Iiib Statc or Majmacu(;bbtt«.
1W
dttfendkiit State appeared, the court would pro-
ceed to hear the caiiEe on the part of the com.
plafnatit, and to decree od the matter of the
Mud bill." There are manj crbpb in which de
creea in chancer; cannot be fullyi if nt all, ex-
ecuted; but that has never bven considered e
reaoon why tlie court alioiild not prunoiinct
the decreei whicli it has the power to pro-
nounce.
But I Bhall not dwell longer irpon these
questions, because tlierc is anullicr poaiti
which, if sound, I think entirely obvintes the
objection of tlie waul of power in tlie coi
beyond the power of making a flnnl decree
tbe cause.
That position is, that the pronouncing 0/
flnal decree in the caii^e will complete the (
ercise of all the jurisdiction which the cai
can require, and will be a final, conclusive and
permanent termination of the controversy.
This position, upon much reflection, I believe
to be sound, or I certainly should not venture
to advance it before this honorable court, us I
do, entirely upon my own respouaibility, as to
its soundness or unsounduess.
A flnal decree in this cause will have no
■embtance to a jud<^ent of court for a sum
money to be collecled on execution, nor tt
judgment in ejectmunt to be followed by
•xecutlon for possession. No process wo
necessarily follow a final decree in this cai
We esk no damages of MasBschuaetts; no
livery of possession; nn process to compel her
to do or undo anything. All we ask is a decree,
wcerlaining and settling the boundary line be-
tween the two States.
Mr. Justice Thompson asked Mr. Haurd ff
the bill did not contain a further prayer; a
Erayer that Rhode Island might be restored to
Br rights of jurisdiction and sovereignty over
the territory in question, and quieted in her
enjoyment of them. And, that part of
708*] "the bill being read, it appeared that it
did contain such a prayer, in nddit'on to the
prayer that the boundary line between the two
State! might be ascertained and established.
Hr. Hazard said that the latter part of the
prayer of the bill had eBcHpi>d him. but it did
not vitiate the bill. The court would have it in
its power to grant so much of the prayer as
they might think right. All Rhode Island
askedforwas a decree ascertaining and establish-
ing the true boundary line between her and
Haass ch use tts. When that is settled by a de-
cree, the rights of jurisdiction and sovereignty
will necessarily follow; the decree wilt execute
itself, and this controversy can no longer exist.
When the boundary line is settled, it will be
the same as all other established boundary lines;
and the relative situation of Rhode Island and
HauaehusettB will be the same ai that of all
other adjoining States.
And why ahould not Rhode Island be placed
upon the same footing, in this respect, with her
Bmter Stateal Why should her jurisdictional
boundary line be left in dispute, and she ex-
poaed to encroach mentB, when all other con-
Irorersiea of this kind have been lastinaly set-
tled!
Am I not sustained tn the position I have
here taken by the opinions and acts of Ihe
[earned men who framed the articles of con- :
fedarationt They enacted that tlie decrees of'
f If. Ml,
the Court of Appeals, in the cases over which
jurisdiction was given to it, should be flnal and
conclusive. And it was their opinlua that noth-
ing more than a flnal decree would be necessary;
and, therefore, they provided for no further
proceedings. And, what ought to be conclusive.
peals, no difficulty was ever experienced, and no
further procesB was ever found to be neceaaary.
It is true that after the line ta settled, Maoaa-
L'husctta may do other wrongs to Rhode Island
for which other remedies may be necessary;
and so she may to any other State; but this
controversy about the line will be at an end
Should MassBchusetts hereafter encroach upon
RhoJe Island, that will be a new aggresaion;
the same as if she should encroach upon ai^
other State, near or distant; the same as if
she should encroach upon the State of New
York, or Conni , ^ut, or New Hampshire; or,
again, upon Rhode Island, on her eastern bound-
ary: with all of which States, Massacbueetta
has had controversies about her boundariea,
and has always been found the aggressor. But
when those boundaries were ascertained by the
competent 'tribunals, all difficulties [^707
were at an end. When Rhode Island, upon
the decision of the king in council, rec^ved
under her jurisdiction lier County of Bristol
and her towns of Tiverton and Little Compton,
over which Masaachusetts had long exercised
jurisdiction, she met with no obstructions from
that State. Neither did New Hampshire, whose
controversy with Massachusetts was decided
by the same tribunal. Still the court are told
by Maasachuaetts that they cannot carry their
decree into effect. Allow me to ask, sir, in
what possible way Massachusetts can liave it
in her power to defeat or evade the effect of
that decreet The decree itself, the moment It
pronounced, will establish a new state of
IhingB between Massachusetts and Rhode Island.
And what are the means that Massachusetts
't to, to prevent that decree from taking
full effect by its own force and operation! I
should be glad to hear the Attorney -General
of Mansaehusetls inform the court what It is
hat that important State is going to do to set
the dciree of this court at deliance, and render
t a nullity T Massachusetts is not going to
rect a line of batteries along this strip of land,
lor to station a military force there to take hos-
ilc posscEision of it. If she should, it would
le invasion; an ample remedy for which ispro-
'ided in the 4th article, 4th section of the Con-
titution. And Rhode laland would be under no
lecessity to apply to this court for an injunction
in such a case. And this again shows the mean-
ing and propriety of the expression "civil con-
ies," used by Congress, and, no doubt,
by the Constitution. I ask again, then,
what can Maesachusettsdo to prevent a decree oif
this court taking full effect by its own force and
operation! She can do nothing. She can only
say that she will retain juriadiction over this
district, the decree notwithstanding. But let
Tiine what she can make this amount to,
hnsetts, as a State, is not the proprietor
of this strip of land. If ahe own any land
there she will, of course, still own and retain it;
[| her right and title will he held as taerad
those of any other owner* of tbd soil.
IISS
T07
Sdfrkiu Codkt or tub Umiibd States.
Then is no shire town within this district, and
of course, probably, no public build inga be-
longing to the State. If there are, the; will
•till be her property, though not appropriated
to the same uaeg. There will be nothing, there-
fore, which Maasachuaetta can retain the poi-
■esiion of, which ahe will be required to relin-
quish. Juriadiction over the diatriot it will be
out of her power to exercise, for she will not
hBTe It; that (in her) will be extinguiebed b;
the decree, ipso facto. What jurisdiction, after
T08'] tha decree, can 'she eiercisel She can-
not number the inliabitants of this diatrict aa
part of her population, or of her militia; for
they will not be ao an; more than the inhabi-
tants of the Count; of Providence, And, no
more can she tax them or their lands, or other
Croperty; for they will not be subject to her
iwa. Her tax-gatherers can collect no taxea;
her ministerial officers execute no process
within that diatrict, for it will be out of the ju-
risdiction of their State. And, should the; at-
tempt to do so, they will carry no Massachusetta
authority with them over the boundary line ea-
ti.b]ishsd by the decree of this court. They
will be trespBasera, and subject themselves to
the penaltiea provided for the punishment of
trespassers. With aa much right might Mas-
sachusetta send her officers into any oilier part
of the State as this; but the civil authorities of
Rhode Island would have no difficulty in deal-
ing with auch offenders. Tliey would be vio-
lators of the laws of the land; not only of tlie
Jaws of Rhode Island, but of the Constitution
of the United States, and of the acta of Con-
gress, under the authority of which the decree
of this court would have been made. They
could not escape conviction and punishment.
And any countenance Hassachuaetts might
give to them would but aggravate the offense
and the punishment. No aid from this court
would he nei^ded. The existing laws would
furnish a perfect remedy for the wrongs at-
tempted to be dune.
Those Massachusetts officers, sheriff, tax-
SthercTB, or whatever they might be, would
ve no authority to demand aid from the
people of the adjoining county of Maaaachusctts.
Nor is it probable that any of those people
(not being hound to obey such demand) would
have any concern in violating the rights of an-
other State, established by a decree of the Su-
preme Court of the Union. But should those
officers, on any occasion, carry with them a
sufficient body of men from Massachusetts, to
enable them, for the time, to seize upon the
property or persons of any of the inhabitants
of the State of Rhode Island (of which this
diatrict would then be a part), and to escape
into MaHsachusetts before they could be arrested,
they would all alike be criminals, and punish-
able as such. And, by the fourth article,
second section of the Constitution of the United
States, and that of Congress passed in conform-
ity thereto, the executive authority of the State
of Massnchusetts, on den^and made by the
executive authority of the State of Rhode
Island, would be bound and compelled to de-
liver up those criminals to be removed for trial
to the State having jurisdiction of the crime.
JOB*) And here, Dpain, Rhode "Island would
have a perfect remedy without the interposition
af this court. Nor would Maasachuaetta have
1SK4
it In bar power, efl'ectually, to obstruct tta
magistratea and dvit officer* of Rhode lala^
in the execution of their official funetioaa.
Those magistrstes and officers, in the perfoni-
ance of their lawful duties, within the juriadie-
tion, and under the authority of their on
State, would have nothing to apprehend fnm
any quarter. Should any of them be lawlcMl;
seized, and carried within the jurisdiction ol
Massachusetts, still they would have notbiog
to apprehend. The decree of this court, tW
laws of the State in which they acted, suid the
Constitution and lawa of the United StatM,
would auBtain and aave them harmleas. Theaa
authorities the respectable judiciaJ tribunal*
of Maasachuaetta would not aet at defianee;
and if they ahould, their judgmenta and pro-
ceedings would speedily be revised and cor-
rected here.
Thus, we find that it would be wbollr ont d
the power of Masaachusetta to prevent a final
decree of this court from taking full affect, by
its own force and operation.
I could not help feeling great aurpriae wbM
I heard the Attorney -General of Maaaachuaetta
so solemnly and portentously warning thia
court of consequences, and expressing hie aax-
iouB hopes that if it should decide against Mas-
sachusetts it will, for the honor of the court,
and for the honor of the country, be sure t«
find some way to execute its decree. WbatI
Uoea Massachuaetts threaten t la Maasachuaetta
ready to become a nullifying State! And to set
up her own will, in deHance of the decrees of
this court, and of the Constitution itself T Thia
court will not make a decree agunst Maaaachu-
setts unless it shall be aatiafied that the Con-
stitution authorizea it, and that equity requirea
it. And for Massachusetts to expect to pre-
vent tha court from making such a decree aa it
may deem constitutional and equitable, by tell-
ing the court how formidable ahe is, and how con-
tumacious and lawless she means to be in ber de-
fiance of its decrees; this, it appears to tnc, is
slmost as deficient in policy aa it is in modeaty-
But let Maasacbusetts take her own course, and
whatever they may be, it will excite no appre-
hension in Rhode Island, although ahe may
grieve that so noble a State should conduct ia
auch a manner aa to tarnish her high and weD
merited renown. If, sir, the principlea and
positions I have endeavored to establish an
sound and have been established, I must think
that they reach and dispose of all the ma-
terial objections which the counsel of Maaaachu-
setts haa raised against the jurisdietioa of tUa
•There wore a great number of other [■111
objertiona, or suggestions and statements mad*
by the counsel, aome of which I will now just
advert to, although I do not consider them as
having any bearing upon the question befca«
the court. It is alleged that the five thousaol
inhabitants of the district in question (I know
not how many there are) have a right to be par-
ties to this suit, and are not. If this was so. it
would be no objection to the jurisdiction of the
court. The court would take care that tWy
were made parties before it proceeded further.
But all the proper parties are here in cavrt-
This controversy is about State juriadtclisa,
not titles to soil and freehold- I auapvct, bo*-
ever, that if those inhabitanta were eonraheA
Peter* 11-
1B3S
I St ATM u
Huoui liLAXD «. Tub Stati or Hubaciiuski
TIO
th»T would not consent to iMmadpili^fonilRnt*.
but nunld rattier juin witli tliv iiimplaiTmnL
State. Tlier *ro taxxl Uanl in MamUKhiwitt <.
and wmiM hxre no Si*te tAxm to puy in lilnHlf
(■Innd. Anil, at one time, a very lurj[e niitiilnr
0( tlie rostv^ctabtp inhaliitaiitn ot Hut dinlrirt pe-
titioned the Lcgiaiutiire of the State of Itliode
leland to bo mreivrd tnto tlint juHadictlnn, to
wbicb tlii>v clnimfd rij^htfniij to tieJon^.
It ia olijocled, hIho, ). Tlint the liill lontiiinii
matter in lur to itHclf. 2. That the bill admits
that Rhode Uland wne never in possession, and
that the ■oit is bnircd by preacription. t. Thnt
the controversy lina been nctllril. These mi)>liE
be proper matters for discusaion and proof
(they kre not proved yet, and cannot be,
for not one of them la true) upon the trial of
the cause; hut, evidently, have noti ing to do
with the question of jurisdiction, llecaiisc it
appeared that the MasHachuHetts charter of IDS)*,
upon a arire farius from the Court of King's
Benrh, was revoked and annulled in inR5, and
that she did not get a new charter until IGDI i
ber counsel has stated that Rhode IsUnd, while
a colony, abandoned and surrendered up her
charter. This is a mistake. Connecticut and
Rhode Island never did surrender their charters,
Although they were demanded, and great efTorts
made to obtain poaaes si on of them. The Con-
necticut rharter was hidden in the hollow of
the venerable old oak tree at Hartford ; and that
of Khode Islnnd was also preserved secure from
ita enemies, and is now in her secretary's olRce
at Providence. The counsel (in sport, I aup-
poae) has induljred his fancy In describing
Rhode Island as she would have been had the
claims upon her territory set up by Plymouth
on the east and Connecticut on the went been
■uccesaful. Very true; and Rhode Island would
have been atripped Indeed. eHppf-iallj with
UUBacbiisetti helpinz herself to five niiies more
ot her territory on the north, which I suppose
Til'] the 'Attorney -General ot Mastachusctta
think* was quite venial, while Rhode Isloi'irs
territory wea looked upon aa free plunder. But
those claims upon the territory of Rhode Island
OB the east and west were found and decided
to be unjiiat. And it was Massachusetts her-
■elf, not Plymouth, which had got possession
of the county and towns within the limits of
Rhode Island, as before mentioned, and from
which, after a faint struggle, she was compelled
t« retreat. There is no probability that a
■mnll State will make unreaaonable claima,
much less encroachments upon larger ones.
The counsel of Massachusetts have asked the
eotirt to consider the characler of the original
colonial charters, and have read passages from
Bancroft's History to show how loose and de-
fective those charters were, and how diflicult tt
would now be to decide controversies grow-
ing out of them. That a case will be a difficult
one to settle is not a very good reason to ofTer
for a court's not taking cojxniiance of It. But
In the present cn«e, no difficulty whatever can
arise frnm such a source. The charters both
of nhriEle Islnnd and Massarhusetts are clear
and intrir>i;ililp in this particular. Rhoile
Island liy lier charter, is bounded north by the
■outh line of Mnssachuaetts; and that line, by
tbe Haasachusetts charter, was to be three miles
•outh of the most southerly part of Charles
Rivar; the aole questloti, therefore, to b« settled,
• !<. ed.
i* a igueation of ponstruction of that part of the
MuHBUchiiKctts rliarter. One net of the Mas**-
I'huKellB commissioners appointed to settle thil
line with lihode Isluml. reported correctly to
ilieir l.rf'p'i'ilature the construct inn which each
Slate relied upon. The Rhode Island ooo-
st ruction was, that the most southern part of
Charles River proper—^Tharles River itaelf,
(hat Is, what was known by tbe name of
"Charles River," vras the point from which to
'iM nsure off the three miles. On the other hand,
MnssBcbusetts insisted that the mmt aoutlieiiy
source or spring head of any run of water, rnn-
i^ini; northerly and finding its way into Charlea
Illvcr. was to be taken as the most nouthcrly
part of Charles River. And acconlin^ly they
found a brook, railed Mill Itrook, which run
from the south into Charles River. This they
traced up to a pond called, "Whiting's Pond,^
out of whirl] the brook run; then going to the
noufh end of the pond, they found another
brook, called .lack's Pasture Brook, which they
traced up south to ita spring head, and thia
they called the moat southerly part of Charlea
River. Surely there can be no difficulty in de-
ciding by the charters, which of these construe'
tions is the correct one. These are the merit*
of the case, 'and I am sensible that they ['7 11
have no bearing upon the question of jurisdic-
tion before the court. But the eounael of
Massachusetts have repeatedly introduced the
merits and I presume it is not improper, for
me to follow him so far aa to state them cor-
rectly.
Precisely the same question was decided
more than a hundred years ago in the contro*
versy between Mesaechusetts and New Hamp-
shire. The northern boundary of Maasachu-
setts is defined and limited in her charter, in
the same terms as her southern boundary. She
was to have three mile* north of the most north-
erly part of the Merrimack River. Upon thIl
she set up the same claim upon New Hampshire
as she now does upon Rhode Island; and bj
her construrtion. she would have taken the
whole of New Hampshire, and the greater part
of the province (now State) of Maine. But
her pretensions were decided to be wholly un-
founded and unjustifiable; and aha was com-
pelled to draw heraelf within her charter limits.
And why haa ahe not respected that deciaion,
and contented herself with the same limits on
the south as on the north 1
MaesHchusctta, also, had ptvelsely the same
controversy with the Stau; of Connecticut about
the western part of this same line; that State
and Rhode Island, by their charters (granted
about the same time, 1662, 1683), being both
bounded northerly upon the aame straight line,
to be drawn due east an4 west throughout. But
Connecticut would not submit to the encroach-
ments of ^TllssaRhUHettB. And, although ahe had
entered into a written agreement with her. ea-
tablishing t'nn line oa it then waa; and that
BfrTPcment had been formally ratified and con-
firmed by the legislaturea of both States (which
was never the case with us); yet Connecticut
provnd that mifrepresrnlii tions and imposition*
had been practiced upon her commissioners and
jrovernment in the nmning of that line, and she
brouKht Massachusetts to a aenae of juatice, and
obtained from her a large part, and not the
whole of the territory which the latter had
Itftft
TI2
SorBUic CouKT or thx Ukiih) States.
wrongful)]' takea within ber Hmitx. And now,
whenever you look upon any mop including
the three States, or that part of tlirm, you nff
the Connecticut northern line is milei iti ad-
vance of that of Kliode Islan'l. wliich ought to
be a eontinimtion of it; and tlie ;;overnment of
MasBaoliuBcttB has not rmiBrd. and cannot cause
any aurvey or map of that line State to be tuic-
en or piibliBhed, without recording anew and
emblazoning her unjust encroachments upon
Bhode Isliind.
A singular appeal was made to your honors,
In the gentle tones of persuasion by the counsel
of MaMacliusetta. They rraiind the court that
T 13*1 'courts of equity do nol countenance fam-
ily quarrels, in which the honor and feelings
of fatnilies may be exposed to injury. Very
well. And here is the important Rtate of
Uaaaachtitetta, surrounded by six other StRlCK.
»1] of which sliow her gieat respect and defi^r-
enee, and manifest a desire to continue in strict
barmoiiy with her. But MasaacliuHetts is not
Mktisfied with this. She encroarhes and en-
croaches upon her neighbors until their pa-
tience is exhausted, *nd after Inn); forliearance
they are compelled, one after another. tocoin
plain of her aggressions and seek redress. And
tluiH eslled upon, here comes MiisMichusett.--
quite undisturbed, and to smooth matters over.
talks shout family disputes, and family honor,
and the relations between ni'ijfh boring sister
StRtHs. which make it improper 10 listen to their
trilling complaints againHl inch other, and an
ahe niivixc's that the complainants be n'primand-
ed and sent home. But tliis did not answer
before the old tribunal of the kinni in eoimcil,
nor iH'fore the American Court of Appeals.
Rhode Is'and, the last of the injured -itates.
whose grievances alone retmiin nnredresserl.
enterlnlns a high respect for her elder sister.
MssMiMiusetts. But I lake it iipiui mysMf to
••■Mre this honorable court, should il think it
aelf iHiund In justice to make ■ decree in her
favor, -hi- will not be offended nor'-omplain of
it, although the decree must be atninat that
re«p«-ted elder sister.
Allow me to conclude my remarks more
aeri'>''«'v, and with matter more impDrtant.
Tlie '« "'>'l of Maxsachufli'ttn lisve mlki-d much
of the proper diviaion of |ni«-er» b- "-i-cn thi-
three iitfut departments of "ovi-i niiii-^iL— the
lesris'alive. executive, and jndi'-'nl Ami they
insrsl tliiit the judicial is not Mie p'lip rilepart-
wen' I" hsve cognimncp of thes^ -(mtroviTsies.
Pray, iiave you heard them p-vnt out which of
the other departments in the p-'p-r Ki.d itppro-
prinle one. or what cither tribrinal tli><re is to
exer-i-p Ihis jurisdiction T Tli.' i.l.-ri of invest-
ing (he expputive wilh T"riwliciioii ni
t j..r
■vid^nt
■ of the f«l
partnient of any well
And. when the siructii
Sinle i-overnmpnts. rein'
partition, limiiation, ami sMji-'inieni 01 rneir
respertive powera is contidcri d. Ihe incompati-
bility of snch a legislative N'risdlelion is still
more glaring. And, therefore, the Conslitu-
tien of the United Stntes has not p-TmiMed
914*1 'the exercise of any such jurisdiction
to either the legisUtive or ejtecutiTe depart-
ment, hut lias expressly conferred it upon tlw
judiciary, which is free from all the objcctiuni
that hiy againat the other two. What. thea.
does Massachusetts meanT Does she mean thit
in her vontrovcMes with any of her aiata
Slates, she is not amonithle to justice before any
tribunal! And that there is no remedy for an in-
jured sister State for any wruMjtH she may suler
at her hands 1 That there shall lie no wreDg
without a remedy, is a first principle, an axiom
in all free governments. Is this the rountry in
ivhich that grriit fiimlomental principle of right
and justice is to be first abandoned !
Mr. Justice Baldwin delivered the opinion of
the court:
At tlie .lanuar}^ Term of this court. IS32, the
p'nintilT filed a iiH in equity, presenting aeasc
arising under the various cliarli-rs from the
crown of England to the Plymouth Compaiv.
in [fl2I, to Mnssaohusetis in 1620, to Kbode In-
land in \ma. the new charter to MasEat-huseli*
in iO'M, toijether with sundry intermediate pro-
ceedings of the council of Plymouth, the result
iif which was to vest in the Colony of Maua-
"husetts and the Icing all the rights of propriety
and government previously granted to that
I'oinpany as a political corporation. The tail
also set out the repeal of tlie oriynal cbarteT
of Massachusetts on a scire facias in the Court
of Chancery in England, thegmnt by thecrowa
and acceptance by the colony of 11 npw charter.
subsequent to the charter to IShoile Island-
All these acts are specially and at large set
out in the bill, but need not in this etaffe of the
"Huse be referred to by the court in detail. They
present the claim of the plaintiff lo the territory
in controversy between the two States, in virtue
i)f these cliarlers, according to the bounO^iric*
Indi pendeiilly of the claim under the charter
of 1CG3, the plaintilT asserts a previous right in
I'irtue of grants from the Indians, and acltle-
ments made under a title thus acquired: anil
also asseriB that under both titles, the inhabit-
ants of Rhode Island made settlements on the
lands immediately south of the boundary be-
tween the two colonies as now aaserled: which
setllements were so made and continued fmai
Ihe time of the purchase from the Indian*, be-
fore, under the charter, and afterwards, tlKMigti
the line was not deHncd and disputed.
The bill then proceeds to stxtc the exist ener
of cnnl roversies between the two colonies at a
very ea rJy p-riod. to settle whieli. ccmrais''ionen
■were appointed by ea"h colony in [*7IS
17fin. and at various other periods down to
IWa. and sets forth the pror'Peilinps of the
'ciui mi ssi oners of the colonies before the Fev-
oli'ilon. and the States afterwards, down In
IRIS.
l-'nr the present purposes of this case, il <•
ni'cesssry to refer only to one subject matter of
these proceeiiings durinc this whole pe'ini
which i" presented in the lill in the snme'aspfct
throin'hoii' : that suhjei't is the agreemeni of
17111). ami 1718, Rid the aetii done pursuant tboe-
to. which are recited at lar?e in the Kll It
then atntes the agreement of the commi*iioa«n
of the two colonies, that a line should be r«»
and marked aa their boundary, whieh was
done; a survey made and returned, logetbn
1838
Tub Btati or Btiotii I
V. Thf Stutk c
MABSACIIUIEm.
with all th« prn^eilingn to the Ifgi^lntiirrii nf
rhe rcfipfTtive polniiien; anfiitcil by MasKo-
rhiiiu-ttH. liul g" tlie liill HverA^. not ac<vpt«<l mill
ratillei< hy Kliode Ulnnd. Tliii is the Unr
nnw clRtmed by MnBUL-hiinettB ; snd wlirtlivr
tde charter line or tliat, ia the true line of Hglit
itnd boiinilary liptvreon the two Statea, ia tlie
only point <n eontroveray In this caM.
The bill avers that this line was ngreed on
in consi<qiieniv of a representation by tlic Mas-
aacliiisetts Commiaitioners to those of Rhode Is-
land tliat in Itl42, Woodword and Saffrey bad
nseertainril the pnint three miles south of
Charles River; whiHi, by the charters of both
«oloniea, was to form their common boundary
hv a tine to nin enst and west thenfrani. That
Woodword and Salfn^v had set up a stake at
th»it point on Wrenlhnm Plaina, as the true
Doiitliem boundary of Massachusetts. That the
Ithoile Tsland comminnionera, confiding in such
reprcEeiitolion, believing that such point had
been truly asi^Ertaincft. and that auch stake was
no more than three miles from Charles River,
flOiith, entered into and made the agreement of
171IV-1711, trhieh whr executed by the commis-
a ion I'm on both aides.
In the agreement is this clause: That the stake
aet up by Woodword and SafTrey, approved
artists, in 1642, and aince that often renewed,
in latitude of forty-one degrees and fifty-five
minnte» north, being three English miles south
of Chnrlcs River, in its aouthernmost part,
Bfjrcrnhly to the letters patent to MasaophuBetta,
be acrounted and allowed as the commence-
ment of the line between the colonics, and con-
tinued between them as deciphered in the
plan of Woodword and SalTrey, on record in
the Maxnschusrtls f^overnment.
It is then avcrrod in the bill that no mark,
■tnke or uiomiment then existed (1710-17111 tg"
vhich the place at which Woodword and Saff-
rey were alleged to have set up the stake could
TIS'I be ascertained; that 'none of the parties
to the agreement went to eucb place; that no
■urrey was made, no line run, or any means
taken to ascertain where it was; whether it
was three miles or more from Charles River;
whether Woodword and SalTrey ever nin the
line, or whether it was the true boundary line
between the colonies, accordLng to their respec-
tive charters. That Massachusetts took wrongful
EiBBession of the territDrj" in question, in which
hode Island never acquiesced, and to whieli
the never agreed; but continued to assert her
claim from the time of the agreement, to the
filing of the bill, to all the territory embraced
in her charter, and sovereignty and jurisdiction
within and over it, as einimed in the bill. The
bill deities that any line was ever run by Wooil-
word and SnfTrcy in 1042; avers that the agree-
ments of 1710-1711, whichadoptedit. were un-
fmir, inequilnhle. executed under a misrepreaen-
tmtion and mistake as to material facts ; that the
tine la not run nccording to the charters of the
colonies; that it is more than seven milea south
of the southernmost part of Cliarles River; that
the a^eement was mnde without the aiscnt of
the king; that Massacliuietts has continued to
bold wrongful possession of the disputed terri-
tory, and prevents the exercise of the rightful
Junidlction and sovereignty of Rhode Island
tberetn. The prayer of the bill !a to ascertain
kiid Mtabliah the DOrtbem boundary betwocn '
• lb ed.
!><>. that the rights of k
relief.
On the iervlce of this bill on the governor
iind Attorney-Ccneral of Miissachu setts, agree-
ably to a rule of this court, the Legislaturo
pnr^sed n resolution, authorising the nppenranca
of the Stote to the suit, and the employment of
counsel by the governor, to defend the right* of
the State. In obedience to this rcHolution the
(Jovernor, after reciting it, appointed counsel
under the seal of the State to Bijp,--ar and maka
defense, either by objecting to the jurisiliction
of this court or by plen. answer or otherwise, at
his discretion, as lie should judge most proper.
Uniler this authority an appearance was
entered, and at .lanuary Term, a plea in bur of
the plaintilTa bill was died, In which it waa
averred: That in l&t3. a station or monument
was erected and Rxed at a point believed to ba
on the true southern boundary line of Maasa-
chnsetts, and a line continued therefrom to the
Connecticut River, westwordly, which station
or monument was well known, notorious, and
baa ever since been called Woodword and
SalTrey'a 'atation, on Wrentham Plains. [*11T
It theo aets up the agreement of 1700. and
■ubaequent proceedings at large; avers that the
whole merits of plaintiff's case as set forth in
the bill were fully heard, tried and determined
in the bearing and by the judgment of the
Rhode Island commtss i oners ; that the agrea-
ment was fair, legal, and binding between th«
parties; that it waa a valid and effectual settle-
ment of the matter in controversy, without
cover, fraud, or misrepresentation, with a full
and equal knowledge of all circumstances by
both parties. That auch agreement is still in
full force, no way waived, abandoned, or re-
linquisbeii, and that the defendant has held,
:d, occupied, and enjoyed the land'
Woodword and SalTrey, and the line run by them
therefrom from the date of the agreement to
the present time without hindrance or moles-
The plea then aeta fortb the subsequent
agreement of the two colonies, in 1717 and
1718, touching their boundaries, and a runninx
and marking thereof by their respective com-
missioners, appointed for the purpose of finslly
settling the controversy, who in I7IB agreed
that the stake of Woodword and Saffrey should
be the point from which the dividing line
should be run, and be forever the boundary
between the two governments, notwithstanding
any former controversy or claim. That tliia
agreement was recorded, rutilied, and confirmed
by the General Assembly of Rhode Island; that
no falsa representation was made to their com-
missioners; that the ajn'cement was concluded
fairly, in good faith, with full andequal knowl-
edge by the respcftive parties has never been
annulled, retiein<led or Rbandoned, and was in
pursuance and completion of the agreement of
1709. The report of the commissioners is then
set out,stating that in 1710 they run and marked
a line west, 2° south from the stake of Wood-
word and SalTrey, at which they met, a* ths
boundary, which report waa apptoved hy
ISfiT
Rhode Island fn the same year. The pica then
ing» nf 1717, 1718, iin.l 1711), ns it .lid in riilii-
tion to those of ITOfl. 171(). uml ITll: pli'inU
bath agreements and unmolesttil pi)-.Ai'risioii li.v
the defemlant, from their rcsppftivc dntps to
the present time, aa a bar to the wlmle bill, anil
against any otiier or further relit'f therein;
5 rays the jiidpnietit of the roiirt whctlier the
efendant shall make any further answer to
the bill, and to be disniisaed.
Tlien the defendant, not waiving, but relying
TI8*] on his plea, by way *of answer anil in
■iippnrt of the pica as a bar to (he bill, avers
that both Bgreementa were a valid anil effectiinl
■elltement of the whole tnalter of controversy
in the rase, as ia insisted on in the plea.
To this pirn a replication was put in, but
afterwards wilbdrawn, and notice given that
the muse would be put down for hearing on
the plea. The cause was (vintiriucd at the lost
term; the p'arntifT gave notice that he should
■t this term move to emend the hill, and the
ease is now before us for consideration, on a
motion by the defendant to dismiss the bill for
want of jurisdiction in the cause.
However late this objection has been made or
may be made in any raiise in an inferior or appel-
late court of the United States, it must be consid-
ered and ileciiled before any court can move one
further step in the cause, any movement is neces-
•arily the exercise of juriailietion. Jurisdiction is
the power to hear and determine the subject
matter in controverny between parties lo a suit,
to adjudieate or e.iercJse any judicial [lower
over them; the queyiion is, whether on the cii.4c
before a court, their action is judiriat or extra-
judicial, with or without the authority of law.
to render a judfrment or decree upon the righta
of the litigant parties. If tlie law confers the
power lo render a judgment or decree, then the
court lias jurisdiction; whnt tlinll be edjudg...i
or decreed between the parties, and with which
ia the H^ht of the case, ia judicial action, by
hearing and determining it. fl Peters, TOD; 4
Russell, 415; 3 Peters, 203-2r>T,
A motion to dismiss a cause pending in the
courts of the United States, is not analogous to
a plea to the jurisdiction of a court of common
law or equity in England: there the superior
courts have a general jurisdiction over all per-
sons within the realm and all causes of action
betwcn them. Tt depends on the subject mat-
ter whether the jHrisdiction shall be exercised
by k court of law or equity; but that court to
which It appropriately belongs can net judi-
cinlly upon tlie party and the subject of the suit,
unless it shnll be made appiirent to the court
that the judicial determinntinn of the case has
been withdrawn from the court of general ju-
risdietion to an inferior and
mptic
Ihnt
of
general jnrisdiction can act upon thefiii
when nothinji appears to the contrar.v; iiimce
lias arisen (he rule that the party claiming an
exemption from its process must set out the
reasons by a special p'en in alwloincnt and shnw
thot some inferior court of tow or equity lias
the exclusive cognizance of the cane, othcrnise
the superior court must proceed in virtue of il^
71 9*1 general •jurisdiction. This rule prc-
»eil» both at law and in equity. 1 Ves. Sen.
C04; 2 Vea. Sen. 307; Mit. 183. A motion
niE Umted States. Itn
to dismiss, therefore, cannot be entertHined, a*
it diH'H not and cannot disclose a case of excep-
tion, anil if a pten in abatement is put in, it
must not only make out tbe exception, bat
point to thu particular cnitrt lo which the cue
belongs. A plaintiff in law or equity ia not to
be driven from court to court by such pleas; )f
a defendant seeks to quash a writ or di>uiiin a
Mil for such cause, he must give the plamtiif ■
lo the jurisdiction of tlint court to which ha
the plainiiff by faia pica
Thei
' clsj^s
of .
where the objection to the jurisdiction i* of a
different nature, as on a bill in cliancery. that
the subject matter is eogniulile only by the
kin;; in counsel, and not by any judicial power
(1 Ves. Sen. 445|; or that the parties.defpad-
ant, cannot be brought before any municipal
court on account of their soverei^jn chararter
nnd the n.-sture of the controversy (tis 1 Vet.
.fun. 371, 3B7; 2 Ves. Jun.&6. 60) ; or in the very
whether the cause propvrly belongs to a court
of law or equity. To surh cases a plea in
nlintement would not be applicable, because the
p'ainti.T could not sue in an inferior court; the
objeelion goes to a denial of any jurisdiction
of a municipal court in one class of easi s. >Dd U)
the jurisilicrion of any court of equity or of
in the other; on which last, the court de-
cides according to their legal discretion. Ao
objection in jurisdiction on tbe ground of ex-
emption from the pro;:cBs of the court in which
the suit is brought, or the manner in which a
ilcfendant is brought into it, is waived by ap-
pearance and pirading to issue (10 Pclem, 473)
Toland v. Pprague. 12 Peters, 300): but wbea
the objection goes to tbe power of thi- L-ourt
the parties or the subject matter, the de-
int need not, for he cannot give Ibc
plaintiff a better writ or bill. Where no in-
or equity, the ground of the objection ia
akeu by plea in abatement, as an cco'piioi
of the given case, from the otherwise tp neral
diction of the court; opp arance does not
the defect of judicial power. an<l it may
plied on by pica, answer, deriiirrcr. or al
(he trial or henriup unless it goes to llit- ;nnni»«'
of bringing the defendant into court, » lii'-b b
loived by submission to the proicrs.
As a denial of jurio.li.'tlon ovor the Giibjeet
latler of a suit between pnrties within the
ealm over which and whom the vimrt has
lower to act. cannot be KU(-ce<«fnl in an Eng-
ish court of genenil jurisdidion, *a {*•£•
notion like the present could not be .iiiMained
on!,istently with the prini'iples of its i'<iu-(ila-
ion. lint as this court is one of timitnl and
pei'ial original jurisdiction, its action mii^l b*
onfinci to the pinticulnr coses, cnnlrovi-r-.ir*,
lud part ict over wliidi the C')n'itili:ti'>n ju.l 1>'i
lavc autliuri^ed it to act. any pi-.);icdiiij with-
ut tlie limits prcsrrilieil is c,it;ini non judift^
ud its action a nullilv. li) Pclers. 474; S. P-
nii9s. 415. And whether the want or e^^'CJa
of p^iwer is objected by n parly or i» app-ir*al
ceed extrujudiciHily.
He fore we can proceed in this eauae «•
nst, therefore, inquire whether we can kar
and determine the matters in controveray ba-
P«tm It
In'pep the partips, '
. The sta-
i« I nnd tlip i
■ M.\t
l-\o
to the [iri'upnt tiiiti. iliiriu;! wliii-h, in the cnsr
of The rsniik of ll.i- Ui>iii-<l Siuif» v. Dnnifl.i.
thi« miirt lina Ui'i'lun-U lliistnhva tiiiulii mental
prini-lple of the Dmililtition, ami ^o we
•halt consiiler it in rlcciiling on llic present
motion. 2 Pi'lers, 501). a!H.
Those Stalls, in llicir lii;jlii'st Hovereign ea-
padt.v, in llie i''>'>\i'nlion oi the pi'uple ihercof.
on wliom, by flu' revolution, the prerogative of
the crown, and the Irunsi'eiirlciil power of par-
liament dcvoivcil. ill a p'riililiiilc unimpaired bv
any aet and rorilrnlliible by no nnlbiirity (fi
Wheat. 631i 8 Wbuil. EH4. .'iKSI. adnpled the
Conslitiitian li.v which tliey ri->pi'('t ively iniide
to (he United Stntcs a grant of jiidii-ial power
By the Constitution it wns nrdaini'd thnt this
judicial power, in rases iiliire a, State was a
parly, should lii' i'Xi-riisc<i by this court as one
of .
nctiuii.
theire.vci^iption from judicial power (fi Wheal.
378. .".SH) as xoverri;>uii by ori|;inal nml inherent
ri-ilit. liy tliuir own Rranl of its exercise over
thcmaelves in sueh etiM's, but whicb they would
not grant to any inferior tribunal. Hy this
grant tbia court hua ai-quircd jtiditdicliiin over
the parties in tliia rnr.sc by llieir own lousi'nl
and deleeated aiilhority. as tlieir nRcnl fur exi-
culinf; the judieiul power of tlie United Slatr»
in the cases specified. Mn^saehusctts has up
peared. sLiliniiiled to Ibe piorcss in her lejiislii
live cnpacity. and plended in liar of the p'nin-
tifT's action certain mntters on whieh the jud^-
ment of the court is askid; all doubts as to
jurindietion over the parlies are thus it rest, ns
721*] well *by the grant of power by the
people as the siibmisiinn of th? Legislature to
tb« process, and calling on the court to exercise
its jurisdiction on the case presented by tlie
bill, plea, and answer.
Our next inquiry will be, whether we have
i'urisiliction of the subject matters of the Buit,
o hear and determine them.
That it ia a controversy between two States
cannot be denied; and though the Constitution
does not in terms extend the judicial power to
all controversies between two or more States,
yet it in temis extludca none, whatever may be
their nature or subject. It is, therefore, a
question of construction whether the contro-
versy in the present case is within the grant of
judicial power. The solution of this question
must neci'Bfarily depend on Ihe words of thi'
Constitution; the meaning and intention of the
convention which framed and proposed it for
adoption and rattlicntion to the conventions of
the people of and in the several States, to;;ethor
with a reference to aueh sources of judicial in-
formation ait are resorted to by all courts in
constriiins statutes, and to which this court
has always resorted in construing the Constitu-
tion. It was necessarily left to the legislative
power to argani7.e the Supreme Court, to define
its powers consistently with the Constitution
as to its original jurisdiction, and to distribute
the reaidua of the judicial power between this
no
ior courts which It was bound ta
stablitib. deliiiuig their respectiva
IHin.Tn. wiieilier uri;;iiial or uppeilnie, b.V which
iiiid liiiw it slioiild lie exercised. In ol>odieoee
lo llie injiinE-tion of the Constitution. Congress
eMTiiM'd liirir power so far as tbey thought it
necl^rn,.,_v ntid proper, under the seventeenth
clause of the eighth section, lirsl article, for
uiiryiMg into cxeciiliim the powers vesteil by
the Couslltiition in llic jmlicial. as well as all
■liber depurtuienla and olliecrs of the govern-
ment of the United Slates, a Wheat. 380,
No department could orpanite itself; the Con-
stitution provided for the orpani/atiun of tht
:L';:ihlBtive power and the mode of its exercise,
hut it delineated onlv the great oullines of the
judicial power (1 Wheat. 326; 4 Wlieat. 407],
leaving the details to Congress, in whom was
vested, by express dele-iation, the poivcr lo past.
ull laws ncL'cnsary and proper for currying into
execution all powers e-\cept their own. The
distribution and appropriate exercise of the
judicial power must therefore he made by leva
p.issed by C'min'ess. and cannot be assumed by
any other depaitnient, else, the power being
concurrent in the legislative and judicial de-
parlnients, a conflict lietwcen them would be
prolmhle if not unavoidable, under a constitU'
: Inn of government "which made it the [*T22
iluly of the judicial power to decide all cases
in law or equity arising under it. or laws
passed, ond treaties made by ita authority.
By the Judiciary Act of 17R!) tbe judicial
"vstem of the United Statea was organized, the
powers of the di lie rent courts defined, brought
iito action, and the manner of their e.vercise
■esulaled. The 13th section provided, "That
111' Supreme Court shall have exclusive juris-
lUtion of all coutrovcrsiea of a civil nature
wliere a State is a party, except between a
-tnte and ils citin'ns, and except also between
,1 State and ci'i/ens of other Statea or aliens;
n which latter case it ahall have original but
i"t exclusive jurisdiction." 1 Story's Laws, 50.
The power of Congress to make this provi-
■iion for carryinf! into execution the judicial
l>iiwer in such cases has never been, and we
'liink cannot i>e questioned; nnd taken in eon-
'lection with the Constitution, presents the
■?reut question in this cause, which is one of
■iiii't ruction appropriate to judicial power and
■\clusively of judici.il co.ini/jinee, till the Icg-
i^hitive power acts ii'jain upin it. Vide 3
['clers. 203. In deciding; whether the prc-ent
■a«<e is embncn,! or excluded by thp Constitu-
nd Jii4i<inry .*ct, and '
of
wFul .
pinal
bv
ise of jurisdictio
uiupt'l* in the legal discretion of the court to
retain or dismiss the bill of the plaintill's. Act
n4 we niiiy feel it our duty to do. there is no
.ippcsl from our judgment, save to the aitieud-
ins power of the Constitution, which can annul
not only ils jud^menta, but the court itself.
^0 that Ihe true question is necessarily, wheth-
a judgment on tlie merits of the case as pre-
sented by the parties, who arc capable of siiin^
and lieing sued in tbia court, in law or equity,
according to the nature of tbe case and contro-
versy between the respective States.
This court, in construing the Constitution as
to the grants of powera to the United States
1S5II
R upon llii- nintr'H. Iin'
nimie
4ni) knve laii] i
Im- ir-nilc bv
0 WlifKt, StS; K WhrMt. 4R!1, 4«l); 12 Wheal.
i3»: B Wlimt. 2(1(1. 2117. 210.
Thi-n lliu only qiiCHlion in. n-lu'ilicr tlirn <-ast
72»*| canicB Mitliin the rule *i>r [irciifiitii ni
Binu'linii nilujitpil anil arti-J on l>v lliiii court
in ca*r« involving tin- cNpiisilion of llip Consti
♦iiliim mid iovvg of (lie UiiitvU Klnti-a. wtiich
•rv I'OnntnieJ hh other instriimi>iil!i srHnlinf
iTly. 12 Wlipat. 437; n IVl.
nnwer or priijioi
rS8. 740. Timi
imt 1
: rtesre
mplin
' l> of II
vpmal nduption: im plication is liiit snotli
term for mvnnin); and intention, appui
the writing, on judicinl insprciion; "ll
dent tiins*i|Udnce" (1 Bi. Com. 2.)0), "o
ni-<VBiiarv eonapqiienL'e rrsuKinj; from the law"
(2 Vn. "Sen. Ml), or the word" of an instru-
ment, in the eonstniction of which (he words.
the BliUicTt, the context, the intention of the
perenn ininK Ihem, nre all lo be taken inio
vipiY. 4 Wheat. 415; fl Peters, 73n. 741.
Siieli in the Beiise in which the eoinmon Mpres-
oi'ceA.-nr.v Iniptii'Dlion," such as ari<ie on the
wordH. taken in eonncetion with other sources
of construction; but not by conjecture, siippo-
•ition. or mere rcattoning on the mcnniiis or
intention of the writin;;. All rules would lie
subverted if mere extmncoiis matter should
have (he effect of Interpretinfi a supreme law.
differently from its obvious or necessiirilj' to
be implied Brn'.e (Vide 9 Wht-at. IPS. etc.); so
appnri-itt as to oiTrrule the wordn used. 0
"Conl ■ ■ -
r OK Tin Umtki) States.
•States, of vrhieh wa eannot he jiull- ["»M
eiitlly ignorant, that at the adoption «f tlw
ConMitulioii there were existin]; eontroveraies
iH'twcen eleven Htate» rtspii-ling their boundi-
rie», which arose uii.ler their respM'live ehar-
1er» and hnd iTilinued from the lirst aettli-inent
of the cohmicrt. New Hampshire and New
Yoric contended for the trrrilorv whieh iit now
Vermont, until the people of llie latter s^-iimrt
liy tlieir own power (he position of a Stale aDd
settled the eonlroversy by takinj; lo tbenmelvn
the disputed territory aH tli? rightful aot-ereifn
thereof. Mawa elm setts and Khoile Isluiid .re
now before us; Connectieiit claimed piirt of
New York and Pennsylvania. She subrnitle<l
to the decree of the council of Trenton. ae;in(;
pursuant to the authority of the eon fed era lion,
whieh decided that Connecticut hail nut lb*
juri«diVlion : but she claimed the riKlit of soil
till IttOfl. New Jersey had a controversy with
New Vurk, which was before this court ia
1S32; and one yet subsists between New .)et-
sey And Delnwure. Maryland and Virginia
contending about boundaries fn 1S3S,
a suit was pending in this court, and the
dispute is yet an open one, Virginia and North
Cnrolina contended for boundary till 180-2; and
fie rmiainiug Stales, South Carolina and (?i-or-
in. settled their boundary in the April pri-rrd-
>;.■ the meeting of the general convention,
hii'h framed and proposed the constii
t ...... IT Q ABK lirl*l. «!... f..1l 1......
U. S. 4flS. With the full knowledge
that there were at its adoption, not only exist-
between two States
e Stat
ind tw<
applie,
p tind
s .Stat
"all (
s of a
tiire, where a State is a pari are broad, con
prehensive terms, by no obvious meaning i
ncceasary implication e\eluding those which r
late to the title, houndnrv. jurisdiction, or so
ereignty of a State. 6 Wheat. 378.
The .hidiciary Act makes certain execplioi
which apply only to cases of privnte person
and r
S(ate; ■
mlirl
r Slate
stahlished rules forbid th'
the exception to such eases if thev are of n
civil nntui-e. What then are "controversies of
a civil nature." belween Slate and State, or
more than two Stales!
We must presume that Con"rPS8 did not
mean to exclude from our jurindiclion thosi-
controversies, the decision of which the Slates
bad confided to the judicial power, and ore
bound (o give to the Cnnslitiition and laws
•ueh a meaning as will make them harmoni/.e
unlesi there is an apparent or fairly to be iin
plied conflict between llicir respective provi
■ions. !n (he construction of the {institution
we mu>^t \no\i. to the history of the times and
examine tlie slate of things e\i''ting when it
was fiun;cil nnd a.ioptcd (12 Wheat. 3-54; 6
Wheat. 416; 4 I'cters, 431. 4.12), to ascertain
the old low, the mischief and the remedy.
It i« a part of the public history of the United
1X00
the words of the Const
state of things, "contr
more States." It is not known that there wera
any such controversies then existing, other th^n
those whii-h relate to boundary, and it would
be a most foreed construclion (o hold Hial tlie>e
were e\cluded from jiidk'ial cogniTii iirw. arJ
that it was to be confined to controversies to
arise proopectivety on other subjects. This
becomi'S the more apparent when wp eonsirler
the context and those parts of the Constituliua
which bear directly on the boundaries of Sli^trs,
by which it is evident that there remnin.M no
power in tne contending States to si-tih- a eon-
I rovertcd boundary lietweeii themfclvr*. a*
Slales competent to act by their own aiitliority
on the subject matter, or in any depurtnu-nl of
?nl, if il
of the tenth section of the
lirst article of the Constitution, there wns ■
iisitivc prohiliition B;^ainst any Stale enlerin-
n power under the *Kovernment could 1*7*5
iitke such on net valid or di.«pensc with llie
a prohibition against any Slate enlerinf!
nto any agivement or compact with nn<illii-r
late or with a foreign power, without the i-nn-
nt of Congress, or ciigafi'ig '" war, unh-«»
?tuaTly Invaded or in imminent danjjer. ad-
(itting of no delsy." Cy this surrender of the
poiver. ivhtch before the adoption of the Con-
'*■ "ion was vested in every State, of setllins
contested boundaries, as in the plenitiida
of their sovereignty they might, they could set-
tle them neither by war, or tn peace, by treaty,
compact or agreement, without the permiMiea
Peteni II.
le^ij
• llllODE 1
•: Statu or Makuac
erf tlie npw logiilntive power wliich the Stnt.
broiiRlil. itii'i cxiotfnce by tlieir r^'^p^vlivp an
Mveral giiiiils in conventioiiB of the pi-opli-,
CongiYRH I'uiiaeiitrd, llicn the Stutcs w«rc i
Itaia rrspiA't rcaloreil to tliiir oiipnal inliiTvnt
■overeigiity: nucli cinisent iH-ing tlie sole limit-
ation imii^itcil bv llie ronstiliition, wht-n given,
left the ^tut.-9 ii« ilicv were bi-fore, a* liM hv
this TOiirt in I'oii'p v' Flergnr, U rctero, 21111.
whereb; tlirir cumpads liri-nme of himling
force, «inl liiTiilly a^UFeil the bdiindary bi'tni'en
theu, opcriiliii},' with llie same cirout bb a treaty
between novereiKM piwcrs. That is, tliat t'
boumiitry bo estobliwliecl and UmiI hy conipe
betivpen nation*, liwome conHiisive ii]M)n i
the aiibjcctM anJ cilii.Tis IhPreof, anil l>in(l thi
right<>. ami are to he treated to alt intents a
purpos<'« as the true, real boumlnrii'fl.
Peters, 2ii!»i S. P. I Vi-s, Sen. 418. 44!>; 12
Wheat, 534. The conHtruction of iiinii mm-
pact is a jntlicini qiieMllon, ami was so ronitid-
ered bv this court in The Usaee of Sims v. Ir-
vine, 3 1)^11, 4-2.^-454; and in Marlatt v, Sitk &
M'Donald, II IVt-rs, 2, 18; Burtou v. WilliumB,
3 Wlirat. 55D-533, etc.
In looking to the practical construction of
this clause of tiip Constitution, relating to
agreemciilH and ciinipacts by the States, in sub-
mitting those uhirli relate to boundaries to
Congress for its consent, its giving its consent,
■nd tile nitron of this court upon them, it is
most manifrst (bat liy universal consent and
action the words "afritement" and "compact"
are conetrueJ to include those nhich relate to
boundary; yet that word "bonndary" is not
tiseil. No one has ever imagined that compacts
of bounclary were eKcliidcd, bccanse not ex-
pressly named; on the contrary, they were held
l^ the States, Congress, and this court, to be
included by nece^isnry implication, the evident
consequence resulting from their known ob-
ject, subject matter, the context, and historical
reference to the State of the times and coun-
try. No such exception lias betri thought of,
728*] aa it would ^render the clause a p^Tfcct
nullity for all practical purposes, especinlly the
one evidently intended by the Constitution, in
giving to Congress the power of dissenting to
■uch compacts. Not to prevent the States
from settling their own boundaries, so far as
merely afTrcted their relations to each other,
but to guard against the demngcment of their
feileral relations with the other Slates of the
Union and the federal government, wlili'h
might be injuriously efTected if the contracting
States might act upon their boundaries at their
pleasure.
Every reason wTiich hns led to this construc-
tion applies with equal force to the clause
granting to the judicial power jurisdiction
«»«r contnu-ersics between States, as to that
clause which relates to the compacts and agree-
ments; we cannot make an exception of con-
troversies relating to bounHaries without apply-
litgthe Mme rule to compacts for set'Mng them.
DOT refuse to include them within one general
t*rm when they have uniformly been included
Is another. Controversies about boundory are
more serious in their consequences upon the
contending States, and their relations to the
Itnton and governments, than com pacta and
agreements. If the Constitution has given to
no departmnit the power to uttltt tbtm tbey
t li. «d. A
vrrfiil StH
es
II u
.<U" poHWH-ion t
o tiie e.t.
I of tlieir
cqu
■«''e
and ihe smull
and submit to
nd weak
phVHieal
«er. "he p
»ion
of the liiv^ S
ate must
^.-qurnlly
be'
'Hhle and unint
errupl.-.!;
-rriplion w
ill
•e'u
the right
J'
s!l.-e of the c.
re can he
v.tlio;i;;hjust r
„'lit» may
viola led.
ul
Hud and foot h\
ilioNs of
the
D.
siilution. a CO
iplaining
Ir c»n nei
her
Ire
I. HSW, or (Ifih
wiih ita
ndver
vitboi
. (he
of Co,,
■sort to (he judicial power Is the only unnna
i^ft For legally adiustiug, or per«itndii>g a Slute
which hns |i'">i -.sion of diKputeti trirllory. lo
piiler into an mrvrrmrnt or eom[Bict ivlnting to
a controverted buuiiliiry. Kew, if any. wi.l be
made, whi-n it is left to the pleasure of the
State in im^aessTmi; but when it is known (hat
some triliunnl cun decide on the Tijiht. it is
nioKt proluihle (hat controversies will be set-
tled by compact.
There can l)e hut two tribunals irndcr the
Constitution who can act on the Imundnrii 4 of
States, the leglBlative or the judicial pnwer; the
former is limited In etpri-^a terms to s-M-nt or
dissent, where a comp«"l or agreement is re-
ferred to them hy the States, and as (he latter
•can be exercised only by this court. [*7aT
when a Slnte is a parly, the power is here, or
it cannot exist. Vnr these reasons we can>ii>t
be persuaded Ih.Tt it could have been inteu.led
to provide only for the HPttlcmint of h:ii>nila-
~.oa when States could auiee, and to al(<i,'e(her
ithhold the power to decide eontroversii-a on
hich the Stotcs could not agree, and pre-
■Mted the most imperioua call for sppeilv Hi:t-
tlement.
There is another clause in the Consiiliilion
which bears on this question. Tlie j- di<'i;il
r extends to "controversies bel ween citi-
of different States:" "between citiwns af
lame ^■tn(e claiming lands under prniii« of
different Suites." We cannot but know, ji.di-
'ially, thai the latter classes of canei miint nec-
■ssarily arise on Imundary, and that few if .
my ever arise from any other source. If (here
s a rompact between (he States it setlirs the
ine or original ri^ht: it is (he law of the case
linding on the Stales and its citivens. hh fully
IS if it bad Iw-cn never contested: if there is no
■ompact, Ihen the conlrnversy mu«t \f se'lled
by adjudging where the line of Imiin'lHry ought
to be. bv (he laws and rules npp'opriat'- to llie
se. 6 Whi-at. .303: 2 Peters. 300. It Is not
nllecled that any such cams have ever ari«-n
of this undoubted <-
ion: and it is not neecs-^iiry for the decision of
for this piiipnse. Hut for the other els-* of
nl States," the eleventh section of the .Indid-
ry Act makes provision; slid the circuit eourta
n (heir original, and this court in its spp.llate
jurisdiction, have derided on the boundaries of
the States, under whom the parties respectively
'h ether there has Iwen a compact or not.
The jurisdiction of the Circuit Court in such
cassB was distinctly and expressly asserted by
thia MUrt u early u ITM, id Foirler v. Miller,
I ISSl
m
EiDPWMB COUBT or TBI UNITED STATI
IStt
S IMl. 4U, 412; S. P. S Peten. 2B0. In H<
1t'« L«BNee v. Antlionj, the Circuit Coiir
Kentucky decideil on the Iwimdary tirU
that Stale B[id Indiana, in nn ejectment
twren these parlies, and their juil;^inciit
affirm eii bv tliis court. 5 Wl>eat. 3iS
Whpat. 212-218; S. P. Harcourt v. Oaill
12 Wheal. 523. When the bnnndariea of States
ean be thus decidrd collBterally in (uit*
tween individuals, we eannot by any just rule
of interpretation declare that this court -can-
not adjudicate on the quFGtion of boundary,
when it JB presented directly in a controvpray
between two or more States, and is the only
T28*] point in the cause. *There is yiit an-
other Hourcf of reference from which to ascer-
tain the true irons t met ion of the Constitution.
liy the ninth article of confederation adopted
by the le^xlatures of the several States, it is
provided, "That the United States in Congress
assembled, shall also be the last resort on ai
peal in all disputes and differences now sut
sialing, or which may hi'reafter arise betwee
two or more States, cimterning boundary, jiirii
diction, or any other cBuse whatever," It di
reeled the sppointmcnt of • tribunal, whose
judi^elit shall lie linnl and conclusive. I
klso gave to Coiign^^ power to appuint a judi
cial tribunal to decide on k petition of either of
the parties claiming land under grants of two
or more States, who hsd adjusted their boun-
daries, but had pn-viou!>'y made the grants on
which the controversy arone. One of the nio«t
crying evils of the con federation was, that il
created no jndlriat pnwrr without the ai-lion of
Consress. sud ctinflned the power of that bod.v
to the appointment of courts for the trial of
piracies and felonies committed on the high
seas, for determining llniilly on appciil, in all
cases of captures; snd for the adjustmi'nt of
the controversies Iw-fore referred to. Yet de-
fective as was the confederation in other re-
spects, there was full power to finally setth'
controverted Imundurieit in the two canes, by nn
appeal by a Slate or petition of one of lis oili-
tens. This power was given from the univer-
sal conviction of Its nrccsaity, in order to pre-
serve harmony amon;; the con fe<lf ruled States
even during the pressure of the revolullon. If
In this state of thinus it wss deemed indispen-
sable to creiite a specinl judicial power for the
sole and expn'ss purpose of Hiiatly settling all
disputes concenitn)( boundary, arise how they
might; when this power wns plennrv, its jud};
ment conclusive on the right: while Ihe olher
powers del (-pa ted to Con areas were more
shadowy forms, one conclusion at leant is in
evilable- That the Constitution which ema-
nated directly from the people, in conventionn
in the several States, could not have Iwen in-
tended to ijive to the judicial power a less ex
tended jurisdiction or less efficient meiins of
final action, than the articles of confederal ior>
adopted by the mere leKislntive power of the
States had given to a sp^'cinl tribunal nppainte''
by Congress, whose mcml)ers were the mere
creatures and representatives of State Legisla-
tures, appointed by them, without any action
by the people of the State. This court i!Xi>.t«
by a direct grant from the people, of their judi-
cial power; it is exercised by their authority. as
their agent selected by themselves, for the pur-
poaes apecified; the people of the States as they
^ IICI
respectively 'became partiea to tfaa ("»»•
Constitution, gave to the judicial power of tli*
United States, jurisdiction over themselves, cob-
troversies between States, between citizens of
tlie same or diirerrnt Stales, claimine laoda
under their conflicting f;>"nts, within disputed
territory. No fact was more prominent in oar
history, none could have been more strongly
impressed on the members of the general ui
Stale conventions, thun that contests for tk*
vBcnnt lands of the crown long threatened the
dissolution of the confederation, which existed
practically and by common consent from 177*
to 17S1; when, after five years of discussion, it
was ratified by the legislatures of all the .Statci.
This court has attested the fact. 0 Cranch. 14!;
5 Wheat. 37S. .'Similar danger was immineat
from controversies about boundariea between
Ihe States, till provision whs made for thdr
decision, with a proviso. ''That no State
should be deprived of territory for the benett
of the United States." 1 Laws U. S. 17.
These two provisions taken in connectinn, pot
an end to any fears of convulsion by the coe-
ti'sts uf States about boundary and jurisdiction,
when any State could, by appeal, bring the
powers of Conpreis and a judicial trilv-n-l i"to
activity; and the United States could not take
any vacant land within the boundary of a
tale. Hence resulted the principles laid dowD
by this court in Harcourt v. Gaillard, \i U'heaL
'■26. that the boundaries of the United Stales
ivcre the exterral boundaries of tlie several
States; and that the United Stales did not ae-
■|uire any territory by the Treaty of Peace, ia
17li3.
Yet though liiis express provision was mads
settle controverted boundariea by judicial
pow.
t had r
d a^jrceiiients lielween States as t*
liiiiimlary. save on grants made before Ihe eoa-
puct; the .Smti's did. and could so settle tb«a
■.!0 eN|ircM< power on or over the subject of such
.'iuii|>:ii'l'< u'iis delF;.'nlcil, their dissent could aot
ilivniiijate Ihem. Such was the law of the eea-
fedrnicy diuiiig a commiin war, when extemsl
lander c-ni.ld tint suppress the danger of di^>U-
to the imlx'cility of Congress, the powers of tW
■stales being reserved for legislative and judi-
rial purpnri's. and the utter want of power is
ihe United States to act directly on the peop)*
■.f the States, on the rights of the States (m-
i-ppt those in controversy between lliem) or tk«
'ubject mailers, on which they had delegaltd
^iiit mere shsctowy jurisdiction, a radical cliangi
.if poveniiiiciit liecame nci-cssary. The Cbb-
slltutinn. wiiich si'persrded the articles of cm-
fid.'nition. erwted "a n-w government, ('JW
■li-Hsni/ed it into dislim-t departments, assigi-
iiig to PiK-h itn lijipiiiprinte powera, and toCia-
irrcKs the jmivir in pass lows for carrying lata
cNci-ntiiin ilic powers granted to each; to that
the tiius of the Union could be enforced by its
[iwn iiiilliority, upon all persons and subjeet
n<:'tlers, over v.hich jurisdiction wtts grunted to
iiiiy department or officer of the government tl
the United States. It was to operate in a tint
of peace with foreign powers, when forei^
pressure was not in itself some bond of unica
between the States, ajid danger from domestic
might be imnuDeoti to extend tk
PMwa II.
isas
ISB Stati or Rhodi Island t. Thb State of UAssAceuaETTS.
legfalktlT*, exeentlve and judklkl power, kllke
av«r peraoiis (tnd Statu, on the enumerate]
■ubjecta by tlicir own granta. The States aub-
uitted to Its exeTclse, waived their sovereignt;,
and agreed to come to thii court to aettle their
eontroveraiea with each other, excepting none
In temiB. So thej had agreed bj the eonfed-
eration: not only not excf^pting, but In eipreia
terma including, all diiputea and differenoea
whatever.
In the front of the ConBtitotlon Is a declara-
tion by the sovereign power from which it em-
anated; that it wae ordained, "in order to form
a more perfect union, establish justice, Insure
domestic tranquility," etc. Whether it was
beat calculated to elTect these objects by mak-
ing the judicial power utterly incompetent to
exercise a jurisdiction expressly delegated to
the old Oongrees and its constituted court, over
Statea and their boundaries, in the plenitude
of absolute power, yat granted only by the
legislative power of the several States; or
whether the powers granted to this court by the
people of all the States ought, by mere con-
etruction and implication, to be held inefficient
for the objects of its creation, and not capable
of "establisbiog justice" between two or more
States, are the direct questions before ua for
eonitderation. Without going further into any
general constderstion on the subject, there is
one which cannot be overlooked, and is imperi-
ous in its results.
Under the confederation the States were free
to settle their controversies of any kind what-
ever by compact or agreement! under the Con-
stitution they can enter into none without the
consent of Congress, in the exercise of its polit-
ical power, thus making en amicable adjust-
ment a political matter for the concurring de-
termination of the States and Congress, and its
construction a matter of judicial et^iuuiee by
uiy court to which the appropriate resort may
ba had, by the Judiciary Act.
This has uniformly been done In the courts
f SI*] of the States, and 'Union; no one has
aver deemed such an exercise of power to be
extrajudicial, or a case which called for it to be
coram non judice. When, therefore, the court
{udieially inapecta the articles of confederation,
he preamble to the Constitution, together with
the surrender by the States of all power to set-
tle their contested boundaries, with the express
grant of original jurisdiction to this court, we
feel not only authorized, but bound to declare
that it Is capable of applying its judicial power,
to this extent at least: 1. To act aa the tribunal
the aame controveraies, and to a like effect. 2.
As the substitute of the contending Statea, by
their own grant, made in their most sovereign
ecpecity, conferring that pre-existing power in
relation to their own boundaries, which they
had not aurrendered to the legislative depart-
ment, thni separating the exercise of political
from judicial power, and defining each.
There is but one power in this Union para-
mount to that by whieb, in our opinion, this
Klsdlction has been granted, and must be
aght Into action if It can. That power has
been exerted tn the eleventh amendment, but
while it took from this court all jurisdiction,
past, preacnt, and future (S Dall. 382), of sU
controversies between States and Indlvlduala,
it left its exercise over those between States as
free as it had been before. This, too, waa the
full view of the decisions of this court, and the
Act of 1789, giving ft exclusive jurisdiction of
all controversies of a civil nature, where a
State is a party, and there can be no subject on
which the judicial power can act with a more
direct and certain tendency to effectuate the
great objects of its institution, that the one be-
fore ua. If we cannot "establish justice" be-
tween these litigant Statea, as the tribunal to
which tbey hare both aubmitted the adjudica-
tion of their respective controverBles, it will
be a source of deep regret to all who are desir-
ous that each department of the government of
tbe Union should have the capacity of acting
within its appropriate orbit, as the instrument
appointed by the Constitution, so to exeento
its agency as to make this bond of union be-
tween the States more perfect, and thereby en-
force the domestic tranquility of each and alL
Being thus fully convinced that we luive an
undoubted jurisdiction of this cause, aa far •<
we have proceeded in examining, whether, by a
true and just construction of the Constitution
and laws. It is included or excluded, in the
grant of judicial power, for any purpose,
*we now proceed to inquire how that (*733
jurisdiction shall be exerted, whether to retain
or dismiss the complainant's bill.
This depends on our jurisdiction over any of
the matters on which the plaintiff asks our in-
terposition. If there Is any one subject On
which we can act, the bill must be retained;
so that the true inquiry is, not as to the extent,
but the existence of any Jurisdiction. 1 Vea.
Sen. 203, EOS; 2 Ves. Sen. 396.
The bill prays, 1. For the ascertaining and
establishing the boundary line between the
States, by the order of this court.
2. That the right of jurisdiction and sov.
ereignty of the plaintiff to the disputed terri-
tory may be restored to her and she be quieted
in tbe enjoyment thereof, and her title thereto;
and tor further relief. If we can decree any
relief specially called for, or any other relief,
consistently with the speclflc prayer, we muat
proceed in the cause. 10 Pet. 228; 8 Pet.
636.
The first prayer is, to ascertain and catabHsh
a boundary. Having expressed our opinion
that the subject of boundary is within our
jurisdiction, we must exercise it to tome extent,
and on some matt«r connected with or depend-
ent upon it; and as the bill is on the equity
side of the court, it must be done according U)
the principles and usages of a court of equity.
In the bills are set forth various charter* from
the crown, fram 1621 to lOBI, and sundry pro-
ceedings by the grantees and the crown in rela-
tion thereto ; also agreements between the
parties as colonies and Btatea, for adjusting
their boundaries, and the proeeedinga of their
respective legislatures ana commiMlonera In
relation thereto, from 1709 to 1818. The plain-
tiff rellea on the charters of tbe two colonies aa
the rule by which to settle the boundary on
the continued assertion of her rights, aa well
by the charter, aa her prerioua purchase from
the Indiana; denying altogether the validitj of
the agreements and subsequent proceedings;
I«
SUFBEUE COUBI OT THE UHIISD STATB.
TeMnUtfon aod mlstftke ■• to matcrUI focti.
On th« other hand, the defendant pleads the
agreement aa a bar; that they are binding, and
haTe been ratified by the plaintiff: ao that the
plaintiff resta his caae on a question of original
Doundary, unaffected b; an;f agreementi the
defendant resta on the agreeraenta without re-
gard to the original charter boundarlea. One
uklng ua to annul, the other to enforce the
agreements; one averring continual claim, the
other Betting up the quiet, \inmoleeted pouea-
II**] 'Our nrat inquiry then
OUT power to aettle the boundary; in other
words, to decide what portion of the territory
in dispute betonga to the one State or the
other, according 1« the line which is their com-
mon boundary. There is not in fact, or by any
law can be, any territory whicb doea not be-
long to one or the other State; so that the
only queition is, to which the territory be-
longa. Thii must depend on the ri^ht by which
each State claims the territory in question.
Both claim under grants of contiguous territory
by the Icing, in whom wa« the absolute propriety
and full dominion in and over it (9 Peters, 745
to 748; 8 Wheat. G9G) ; the line drawn or ^int-
•d out in his grant, is therefore that which ia
designated in the two charters aa the common
boundary of both. S Wheat. 375.
The locality of that line is matter of fact,
and, when ascertained, separates the territoiy
of one from the other, for .neither State can
have any right beyond ita territorial boundary.
It follows that when a place is within the
boundary, it is a part of the territory of a
State; title, jurisdiction, and sovereignty, are
inseparable incidents, ai.d remain ao till the
Btate makes some cession- The plain language
of this court in The United States v. Bcvans, 3
Wheat. 3B6, et aeq., saves the necessity of any
reasoning on this subject. The question ia put
by the court— "What, then, is the extent of
jurisdiction which a State poaseBsesI" "We
answer without hesitation, the jurisdiction of a
State is co-extensive with Its territory, eo-ez-
tensive with Its legislative power. The place
described is unquestionably within the original
territory of Massachusetts. It is, then, within
the jurisdiction of Massaebnsettt, unless that
Jurisdiction has been ceded to ('by') the
United States." lb. 387. "A cession of terri-
tory is essentially a cession of jurisdiction. lb.
388. Still the general jurisdiction over the
place, subject to this grant of power (to the
United States), adherea to the territory as a
portion of sovereignty not yet given away."
lb. 38B.
This principle is embodied in the sixteenth
clause of the eighth section, first article of the
Constitution, relative to this district; forts,
arsenals, dock yards, magazines, and uni-
formly applied to all acquiaitions of territory
by the United SUte*, in virtue of cessions
by particular States, or foreign nations. S
Wheat. 324, 376; 3 Wheat. Sa, 380; 2 Pe-
ters, 300, etc. Title, jurisdiction, sovereign-
ty, are therefore dependent questions, neces-
sarily settled when boundary ia aacertained,
which being the line of territory, is the line of
JH'] 'power over it so that ^eat aa ques-
MoDS of jurisdiction and aovereignt^ ma^ be,
BogUsh
tbey depend In thta case on two simple factai
1. Where la tbe southernmost point of Charlaa
Riverl 2. Where is the point, three Bnf " *
miles in a south line, drawn. from itt n
these points are ascertained, which by
terms are those called for in both chartcra,
then an east and west line from the seoc»d
point is necessarily the boundary betwetu tha
two Statea, if the chartera govern it.
If this court can, in a case of orginal huia-
diction, where both parties appear and tha
plaintiff rests his case on these facts, proceed
to aacertain them, there must be an eiid of tUs
cause when they are ascertained. If the iaaua
between them is upon original right by tlM
charter boundaries. We think it itocs not rc-
e reason or precedent to show that we may
ascertain facts with or without a jury, at our
discretion, aa the circuit courts and all others
do, in the ordinary course of equity: oor power
to ezamine the evidence in the cauae, and there-
by ascertain a fact, cannot depend oa ita ef-
fects, however important in their conaequence*.
Whether the sovereignty of tbe United StAtca,
of a State, or the property of an individual,
depends on the locality of a tree, a stone, or
water-course 1 whether the right depends on a
charter, treaty, cession, compact, or a common
deed; the right is to territory great or amal! in
extent, and power over it, either of gorem-
ment or private property; tfae title of a State
is sovereignty, full and absolute dominioa <2
Peters, 300, 301); the title of an individual
such aa the State makes it by its grant and law.
No court acta differently in deciding on
boundary between' States, than on lines betw(>en
separate tracts of land; if there ia uncertainty
where the line is, if there ia a confusion of
boundaries hy the nature of interlocking
grants, the obliteration of marks, the intenniz-
ing of possession under different proprietMS,
the effects of accident, fraud, or time, or other
kindred causes, it is a case appropriate to
equity. An issue at law ia directed, a commis-
sion of boundary awarded; or, if tbie court are
satisfled without either, they decree what and
where the boundary of a farm, a manor,
province, or a State, is and shiill he.
When no other matter affects a boundary, a
decree settles It aa having been by origrinal
right at the place decreed; in the same manner
as has been stated where it is settled by treaty
or compact; all dependent rights are settled
when boundary Is. 1 Ves- Sea. 448 to 450. If,
therefore, there was an issue in this case, oa
the locality of the point three miles aouth of
the southernmost point of Charles River, w*
'should be competent to decide it, and t'^f
decree where the boundary between the Statea
waa In le2B and 1663, at the dates of their re-
spective charters.
On these principles it becomes unnrrnsarj
to deride on the remaining prayers of the bOI;
if we grant the first, and settle boundary, the
others follow; and if the plaintiff obtains re-
lief as to that, he wants no other. The estah-
lished forma of such decrees eztend to every
thing in manner or way neceasary to the flnal
establishment of the boundary, as the trac Una
of right and power between the partiea.
This, however, is not a case where there la
an issue on original boundary ; the defendant
doea not reat op that [act, hut puts In a plea
ppf«*a II.
lua
Tju Stati or Rboi»e lujuni T. Thb Statb of
7SS
■>Hlim up ID agreement or comMct of bound-
aij between the partiei while colonies, knd the
ftotual establiahment of k line agreed on, run,
mwked, and ratified by both colonies, long
poMeuion, and a right oy prescription to rII
Uie territory north of such line. This presents
A case on an agreement on one side, alleged to
bs eonclunive upon every matter complained of
In the bill ; on the other, to be invalid for the
reasons alleged. If this matter of the plea is
■uQicicnt in law, and true in fact. It ends the
ckuse; if not so in both respects, then the
parties are thrown tack on their original rights,
according to their respective claims to the ter-
ritory in question, by charters, or purchase
from the Indians. If, then, we can act at all
on the case, we must on this state of the plead-
ii^ decide on the legal sufScicncy of Ihr \>'.en,
if true, aB on a demurrer to it; next, un the
truth of its averments ; and tlien decide
whether it bars the complaint of the plaintilT,
and all relief; if it does not, then wc must ss-
eolain the tact on which the whole contro-
versy turns. In th; Pr^t r.spect of the rase, it
presents a queKlion of the most common and
undoubted jurisdiction of a court of equity;
aa agreement which the defendant sets up as
conclusive to bar ail nilcC, f:fi th" pluititilT
asks to be declared void on grounds of the
most clear and appropriate cogniunce in
equity, and not cognizable in a court of law.
A false representation made by one party, con-
fided in by the other, as to a fact on which the
whole ranee depends; the cxcouiion of the
agreement, and all nrncccdingn under it, found-
ed on a mistaken belief of the truth of the
fact represented. We must, therefore, do
•omethin;; in tlie cause; unless the defendants
have, in their objectionu, made out this to he
an exception to the usuul course of equity. In
its action on quesCiciiis of boundfiry.
TIC*] *It is said that this is a political, not
civil controversy lietween the parties, and so
not within the Conatitutiou, or thirteenth soc-
thm of the Jiididuiy Act.
As it is viewed b,r Ihc court. It Is on the bill
alone; had it been demurred to, a controversy
■• to the locality of a puint three milvs south
of the southernmost psjut of Cbuilis Kiviir;
which is the only question which can arise
under the charter. Taking the case on the
bill and plea, the question Is, whether the
stake set up on Wrentliam Plain by Woodword
A SalTrey, in 1S42, is the true point from
which to run an east and west line, aa the
compact boundary between the States. In the
Brat aspect of the case, it depends on a fact; in
tbe second, on the law of equity, whether the
agreement is voicl or valid; neither of which
present a political controversy, but one of an
ordinary judicial nature, of frequent occur-
rence in suits between individuals. This con-
troversy, then, cannot be a political
r the
_ r liecause the contest is between
States ai to political rights and power, uncon-
nected with the original, or compact boundary.
We will not Impute to tbe men who con-
ducted the colonies at home and In Congress,
in the three declarations of their rights prerl-
oni to the cons'.immstlon of the revolution,
from 1774 to 177fl, and iti final act, by k dee-
ff k ad.
laration of the rights of the States, then an-
nounced to the world; an ignorance of tha
effects of territorial boundary between them,
in both capacities. Every declaration of the
old CongreM would be falsified if the line of
territory is held not to have been, from the
Sret, the line of property and power. Tbe
CongresB which, in 1T7T, framed and recom-
mended the articles of confederation for adop-
tion by the legislative power of the several
States, were actmg in a spirit of fatuity if they
thought that a final and conclusive judgment
on State boundaries wss not equally decisive
aa to the exercise of political power by a State,
making it rightful within but void beyond the
adjudged line.
The membcra of the general and State con-
ve^tti'ina were alike fsLuitoua, if they did not
i;uiii|iieheBd and know the effect of the States
Bubmitting controversies between themselves,
to judicial power; so were tbe members of the
liret Congress of the Conatitution, if they
could see and not know, read and not under-
stard i!ii plain prnviBions, when many of tbem
assisted in its frame.
Tbe founders of our government could not
but know, what has 'ever been, and is [*IS7
fsimiliar to every statesman and Jurist, that all
controversies between nations are, in this sense,
political, and not judicial, as none but the aov-
(.N'cigu can settle them. In the Declaration of
[ndependence, tbe States assumed their equal
station among the powers of tbe earth, and as-
serted Ihut they could of right do what other
independent States could do — "declare war,
make peace, contract alUanccs;" of consequence
to settle their controversies with a foreign pow-
er, or among themselvea, which no State, and
no power could do for them. They did con-
tract an alliance with France in 177S, and with
each other in 178): the object of both was to
drfend and secure their asserted rights as States;
hut they surrendered to Congress, and its ap-
pointed court, tbe right and power of settling
their mutuiil controversies, thus making them
judicial questioDB, whetbw tbey arose on
"boundary, jurisdiction, or any other cause
wliuLEver." There is neither tlie authority of
luM or reason for the position, that boundary
between nations or States is, in its nature,
^ttled without war or treaty, which ia by
political power; but under the old and new
confederacy tbey could and can be settled by
a court constituted by themselves, as their own
substitutes, authorized to do that for States
which States alone could do before. We are
thus pointed to the true boundary line between
political and judicial power, and questions. A
sovereign decides by Us own will, which is the
supreme law within bia own boundary (S Pe-
ters, TU; 9 Peters, 748) ; a court, or judge, de-
judgment. The submission by ths sovereigns,
or Statea, to a court of law or equity, of a con-
troversy between them, without prescribing
any rule of decision, gives power to decide ao-
cording to the appropriate law of the casa (U
Ves. EM), which depends on ths subject mat-
ter, the source and nature of the claims of the
parties, and the law which goveioM tliem. From
Tir
bUPBEMl COUBT 0» TBI UNItH) STATED.
the time of tmeh aiibmiuioR, the qi;«Btion eeanea
to be a political one, to be decided by the sic
volo, sic jubeo, of political pownr; it comes to
the court to be decided by its jiidgment, legal
discretion, and solemn con ^i deration of tlie
rules of law appropriate to its nature as a ju-
dicial question, doponding on the excrcieea of
judicial power; *■ it ia bound to act by known
and settled principles of national or municipal
jurisprudence, aa the case requires.
It liHB never been contended that prize courts
738*] of admiralty juriEdiction *or questions
before them, are not strictly judicial; they de-
cide on questions of ivar and peace, the law of
nations, treaties, and the municipat laws of the
capturing nation, by whieh alone they are con-
stituted; a fortiori, if such courts were consti-
tuted by a solemn treaty between the State un-
der whose authority the capture was made, and
the State whose citizens or subjects suffer by
the capture. All nations submit to the juris-
diction of such courti over their aubjecta, and
hold their final decrees conclusive on rights of
property. 0 Cr. 284, 283.
These considerations lead to the definition of
political and judicial power and questions; the
former ia that which a sovereign or State exerts
by his or its own authority, as reprisal and con-
flscation (3 Vts. 42B), the latter is that wliicb
is granted to a court or judicial tribunal. So
of controversii-B between States; they are in
their nature political, when the sovereign or
State reserves to itself the right of deciiling on
it; makes it the "subject of a treaty, to be set-
tled as between States independent," or "the
foundation of representations from State to
State." This is potiticsl equity, to be adjudged
by the parties themselves, as contradistin-
guished from judicial equity, administered by a
rourt of justice, decreeing the cquum ct honum
of the case, let who or what be the parties be-
fore them. These ere the definitions of law as
made in the great Maryland case of Barclay v.
Russell, 3 Vcs. 435, as they have long been
settled and established. Their correctness will
be tested by a reforence to the question of orig-
inal boundary, as it ever has been, and yet is
by the constitution of England : which was ours
before the rovolntion, while colonies |8
Wheat. BSe). as it was here from 1771 to 1781,
thence to 178B, and since by the Constitution
as expounded by this court.
If the question concerning the boundaries of
eon(i|nious pieces of land, manors, lordships,
or counties palatine, arises within the realm, it
waa co^izabte in the high court of chancery,
hi an appropriate case; a mere question of title
to any defined part, was cogniznble only by
ejectment or real action in a court of Inw,
which were in either case judicial questions.
1 Ves. Sen. 4M, 447. It between counts Pala
tine, boimdary involved not only the right of
■oil, but the highest franchise known to the
law of England, jura regalia, to the same ex-
Unt thnt the king in right of the crown and
royal jurisdiction. FaUtina jurisdiction was a
Sialificd sovereignty, till abridged by the 24
. VIII. ch. 24; Seld. Tit. Hon. 380,382, 838
S38; 1 Bl. Com. 108, 117; 7 Co. 19; Cro. El
7»t*] 240; 4 D. C. D. 450. etc. The •count
appointed the judges of courts of law and equi-
ty ; the king's writs did not run into his county ;
writ! wen in Itii ■wma, and indietmeata agkinat
his peaoe. Oo. Inst. S(M-218. Tet Us jnli-
diction, bia royalties, and jura regalia, ete^ ex-
isted or disappeared, according as a duiiiMUar
should decree aa to iKiundary. Pcnn v. Bal-
timore, 1 Ves. Sen. 448, 440, etc. The king had
no jurisdiction over boundary within the realm,
without he had it in all hia dominions, as the
absolute owner of the territory, from whom all
title and power must flow. 1 III. Com. 241;
Co. Lltt. 1; Hob. 322; 7 O. C D. 76; Cowp.
206-211; 7 Co. 17, b; as the supreme tegisiatci;
save a limited power in parliament. He could
make and unmake boundariea in any part of
his dominions, except in proprietary provinces.
He exercised this puwer by treaty, as in ITO,
by limiting the colonics to the Mississippi, whoit
charters extended to the South sea. by procla-
mation, which was a supreme law. as in Flori-
da and Georgia (12 Wheat. 624; I Laws U. S.
443-451). by order in council, as between Mas-
sachusetts and New Hampshire, cited in the
argument. But in all cases it was by bis po-
litical power, which waa competent to dismem-
ber royal, though it was not exercised on the
chartered or proprietary provinces. M'lntosh
V. Johnson, 8 Wheat. 680. In council, Ibt
king had no original judicial power, t Ves.
Sen. 447. He decided on apprals from Ibe
colonial courts, settled boundaries, in virtue of
his prerogative, where there was no agreement:
but it there is a disputed agreement, the king
cannot decree on it, and therefore the council
remit it to be determined in another p'ncc. oa
the foot of the contract. 1 Ves. Sen. 447. !■
virtue of his prerogative, where there was M
agreement (1 Ves. Sen. 205), the king acts not
as a juilgp. but as the sovereign acting by the
advice of his counsel, the members whereof do
not and cannot sit as judges. By the statute SO
E. 3, ch. 1, it is declared, that "the king hat fa
delcfiated his whole judicial power to the judg-
es, all matters of judicature according to the
laws." 1 Ruff. 248; i Co. Inst. 70. 74. Hs
had, therefore, none to exercise; and judpe^
though members of council, did not eit in judi-
cature, but merely as his advisers.
The courts had no jurisdiction over the cote-
nies, persons or property therein, except in two
I'sses; colonies and provinces bein;; corpora-
tions under letters patent (3 Vea, 435), were
amenable to the kintj in the king's bench, by
quo warranto, which is a prerogative writ: and
a scire facins. in chancery, to repeal the letters
patent, which is a part of the statutory juris-
diction of that court in such cases, by the court
•in chiiuccry, also in virtue of thfroynl l*HO
prerogntive, by which the charter Has made.
Itut chancery could not act on bounilarird ia
the royal or chartered colonies; it could act oa
lords, proprietors of provinces, when they were
in the realm, where they were subjects; though
in their provinces they were xovercign, drpi'm-
ent only on the crown and the general siiprrm-
acy of parliament. Acts of parliament did ixri
bind them, unless extended to then) e.vpressly,
or by necessary consequence. 2 Ves. Sen. 3il.
They had all the powers of counts pslatiae.
the shsolute propriety of soil, and the powers
of legislation; the only restraint upon them
was by the powers reserved to the king by hit
letters patent, and allegiance to the crown ia
matters of prerogative not granted. The pow-
er of parliament was, on tha American {wiDo-
Peters IS
iS38
Thi Btais or Biiodb laLA:(D r. Tbe State ov UAssAcuasm&
7«
pk> of the Tevolution, connned to the regulation
of "eiternkl commerce;" though bj the Eng-
lish principle, it extends to all casea whatever.
Yet Hivereign aa they were as to all thingf, ex-
cept those relating to the powers of the icing and
parliament, chancery could and did act oi
Mgreementa between them aa to their bounda
ries. In the case of Peun v. Baltimore; though
it eonid not have done so had they stood B.t
arma' length; in which case the king in council
could alone have decided the original boundary
OB an appeal. 1 Vea. Sen. 440, Chancery
also could and did dedde on the title to the
lale of Man. which was a feudal kingdom;
a bill for discovery of title, relief as to rec
ries and tithes, which was a mere franchise
plea to jurisdiction was overruled. Derby
Athol, 1 Ves. Sen. 202; S. P. Bishop of Sodor
and Man v. E. Derby, 2 Vea. Sen. 337, 3E0.
In each of these cases, objections to the ju-
risdiction were made similar to those made in
this, but were overruled ; and neither the au-
thority or principles of either have been ques-
tioned; on the contrary, they have been recog-
nized and adopted by all courts which follow
tke course of the law of England; yet each in-
volved the same question as the present. In
the first, the decree at to boundary sutUed by
consequence the collateral and dependent ques-
tions of title, jurisdiction, and sovereignty, of
■nd over the disputed territory ; in the two Isi '
ott a suit for rectories and tithes, the title to
feudal kiniTilom was but a dependent matti
and was set lied by deciding tliat the bishop
had a right to the tithes he claimed. The same
principle uss settled in the esse of the Nabob
of the Carimtic v. The East India Company,
though it is commonly referred to in favor of a
contrary position.
741'] *On the original pleadings, the eaae
was on a bill for an account founded on two
agreements between the parties, in 1785 and
17S7. The defendants plead their rights and
privileges under their charter, with power to
tnake peace and war within its limits; that the
piaintiiT wag a sovereign prince; that theagree-
noents stated in the bill were made with him in
their respective capacities, one as an absolute.
the other as a qualified sovereign; and that the
matters therein contained related to peace and
war, and the security and defense of their re-
■pective territorial possessionH.
The pica was considered and overruled by
the chancellor; thus exercising jurisdiction to
Uiat extent. I Vea. 371, 387. An answer
was then put in, containing the snmematteras
the plea; adding that the agreements between
the parties were treaties of a federal character,
both being sovereigns; and that the agreement
of I7B7 was a final treaty; and, therefore, the
aubject matters thereof were cognizable by the
taw of nations, not by a municipal .yturt. Tbe
bill was dismissed on this ground; "It is a case
of mutual treaty between persons acting, in
that instance, as States independent of each
other; and the circumstance that the East In-
dia Company are mere subjects with relation to
this country, han nothing todo with that. That
treaty was entered into with them as a neigh-
boring independent State, and is the same as if
H was a treaty between two sovereigns; and
COBMquently is not a subject of municipal pri-
rat* furiadictioB.'* It thus la manifest, that if
• L. «d.
the answer had been to the merits, there must
ttave been a decree; the dismission resulted
from tbe new matter added, a* is evident from
the opinion of the chancellor on the plea; and
of Lord Commiseioner Eyre on liieauiiwrr, and
his closing remarks, in which be declares,
"that tile case was considered wholly inde-
pendent of the judgment on the ptea, and was
decided on the ansvter, which introJuoed mat-
ters showing that it was not mercantile in its
nature, but political; and therefore the deci-
sion stood wholly clenr of the judgment on the
pica." i Ves. Jun. 56, 60.
That a foreign sovereign may sue in an Eng-
lish court of law or equity, was settled in cases
brought by the King of Spain. Hob. 113.
That a foreign government may sue in chan-
cery, by such agents as it authorizes to repre-
sent them, on whom a cross bill can be B<-rvcd,
with such process as will compel them tu do
justice to the defendant, was decided in The
Columbian Government v. Knthscliild. 1 Sim.
104. These cases were recognized in The King
any other person, but tiiat whenT'KS
he did sue in chancery, it was as any other
suitor, who sought or submitted to its jurisdic-
tion; that it could decide on the conutructlon
and validity of the treaties between France and
the allied sovereigns of Europe in 1814, and on
the validity of a private and separate treaty be-
tween France and Spain.
Tbe case involved both questions; both wero
fully considered by the lords, in affirming the
decree of the chancellor, overruling the demur-
rer (4 Russell, nflO). which assigned the cause
that the plaintiff had not made out a case for
'.{ in a court of equity, for the reasona
assigned in the argument; that a foreign sov-
ereign could not sue in virtue of his preroga-
tive rights; that an Knglieh court would not
enforce these rights, accruing out of a treaty
with France, which was inconsistent with the
existing relations between each of those coun-
tries (France and Spain), and the King of
England. 2 Bllgh. P. C. new series, 81, 44,
48. SO. 00.
The Court of King's Bench also will consider
the effect of the Declaration of Independence
and Treaty of Peace, in an action on a bond.
Polliott V. Ogden. 3 D. 4 E. 730.
Prom this view of the law of England, the
results are clear, that the settlement of bounda-
ries by the king in council, is by his preroga-
tive; which is political power acting on a
political question between dependent corpora -
proprietaries, in his dominions without
m When It is done in chancery, it is
by its judicial power, in "judicature aceord-
the law," and necessarily a judicial
, whether it relates to the boundary of
provinces, according to an agreement between
Penn v. Baltimore; the title toa
feudsl kingdom, in a suit appropriate toequl-
f, where the feudal king appears and pleads,
3 in the case of the Isle of Man ; or on an ajn^e-
iPiit between a foreign sovereign and the East
India Company, in their mere corporate capac-
ity. But when the company assumed thechar-
icter of a sovereign, assert the agreement to ba
1 "federal treaty," between them and tba
plaintilf. aa ncighboriBg tovereignB, each fnde*
i9«r
T«
SoraBifB CotntT or ths UHim Btati
pendent, and the tnbjeet mktter to be peace
and war, political in ita nature, on which no
municipal court can act b]> the law of natioDB,
chancer)' has no jurisdiction but to diBmiaa the
bill. Not bermiRe it ii founded on a treaty,
but because the defcndaiit refused to submit it
to judicial power; for, bod the Company not
mad* the objection, by their answer, the court
must have procecdixl as in The King of Spain
143*1 V- Machado, and decreed on * the valid-
ity, as well as the construction of the treaties.
The court, in one case, could not force a sov-
ereign defendant to submit the merits of the
ease to their ctumiiance ; but in the other, when
he was plaintirF, and a aubject wos a defend-
ant, who appeared and p'ead. the whole subject
matter of the pleadings was decided by judicial
power, as a judicial question; and such has
Wr, and la the settled course of equity in
England.
& the colonies, there was no judicial tribu-
nal which could settle boundaries between
them; for the court of one could not adjudicate
on tha rights of another, unless as a plaintiB'.
The only power to do it remained in the King,
where there was no agreement; and in chan-
cery, where there was one, and the parties ap-
peared, so that the question was partly political
and partly judicial, and so remained till the
declaration of independence. Then the States,
being independent, reserved to themselves the
power of settling their own boundaries, which
was necessarily a purely political matter, and
BO continued till 1781. Then the States dele-
gated the whole power over controverted bound-
aries to Concress, to appoint and its court to
decide, as judges, and give a fiual sentence and
Judgment upon it, as a judicial question, set-
tled by a specially appointed judicial power,
as the substitute of the King in Council, and
the Court of Chancery in a proper case; before
the one as a political, and the other as a judicial
Then cmmc the Constitution, which divided
the power between the politiral and judicial
deparlmenta, afler tncjpacit sting the f^Utee
from settling their controversies upon any sub-
ject, by treaty, compact, or agre^ment; and
completely reversed the long established course
of tne laws of England. Compacts and agree-
ments were referred to the political, controver-
sies to the judicial power. This presents this part
of the case in a very aimple and plain anpect.
All the States hnve transferred the decision of
their controversies to tiiia court; each had a
rioht to demand of it the exercise of the power
wliicb they had made judicial by theeonfeder-
Ktion of 1T81 and 17B8; that we should do that
which neither Statea or Congress could do—
Mttle the controversies between them. We
should forget our high duty, to declare to liti-
gant States that we had jurisdiction overjudi-
dal, but not the power to hear and determine
political controversies; that boundary was of a
political nature, and not a civil one: and dis-
miss the plaintilTs hill from our records, with
out even giving it judieial consideration. We
144*] should equally forget the dictate *of
reason, the known rule drawn by fact and law;
that from the nature of a controversy between
king! or Slates, it cannot be judicial : that
where they reserve to themselves the Hnal de-
rision. It ia of BBcesaity by their inherent polit-
1I«S
ical power; not that which bos been detegatad
to the judges, as matters of judicature, aceocd-
ing to the taw. These rules and pwiaaf\m
have been adopted by this court from % vtrj
early period.
In 1700 it was laid down, that though a StaU
could not sue at law for an iocorporeaJ rigfat,
as that of sovereignty antl jurisdiction, tbeca
was no reason why a remedy could not be lad
in equity. That one State may file » till
against another, to be quieted as to the bound-
aries of disputed territory, and tfaia cooit
might appoint commissi oners to oacertain aod
report tnem; alnoe It ia monstrous to talk tt
existing rights, without correspondent r^e-
dies. 3 IM\. 413. In New Jersey t. Wilaoo,
the only question in the ease was, wbetbcr Wil-
son held certain lands exempt from t«uca,ti<M.
7 Or. 164. In Cohens r. Virginia, the eoort
held that the judicial power of the United
States must be capable of deciding any judie^
question growing out of the Constitution a»d
laws. That in one class of eases, "the cfaarae-
ter of the parties is everything, the nature ct
the case nothing;" in the other, "the nature of
the case is everything, the character of tbe
parties nothing." That the clause relating t«
cases in law or equity, arising under the Coa-
stitution, laws, and treaties, makes no excep-
tion in terms, or regarda "the condition of tta
party." If there be any exception, it ia to ba
implied against the express words of the artide.
In the second clasa. "the jurisdiction depcads
entirely on the character of the parties,* cob-
prehending "eontroversiea between two or mors
States." "If these be the psrtiea, it is entirely
unimportant what may be the subject of eoa-
troversy. Be it what it may, theae parties have
a constitutional right to come into the courts of
the Union." 6 Wheat. 378, 3S4, 392, 393.
In the following cases it will appear that tk*
course of the court on the subject of boundary
has been in accordance witb all the foregoiag
rules; let the question arise as it ma^, in a cssa
in equity, or a case in law, of a civil or crim-
inal nature; and whether it affects the rights of
individuals, of States, or the United States, and
depends On charters, laws, treaties, compscta,
or cessions which relate to boundary. In Robia-
Bon V. Campbell, the suit involved the eonstrae-
lion of the compact of boundary between Vir-
ginia and North Carolina, made in 1S02; aad
turned on the question, whether the land m
controversy *was always within tbe [*14S
original limits of Tennessee, which tbe court
decided. 3 Wheat. 813, 218, 2M. The United
States V. Bevan, was an indictment for murdcri
the questions certified for the opinion of tUl
court were: Ist, whether the place at whi^
the olfcnse was committed, was within the fa-
risdiction of Massachusetts; and Zd, wbctMr
it was committed within the jurisdiction of Ik*
Circuit Court of that district. It woa consid-
ered and decided, as n question of boundary (S
IVhent. 330. 3)!e). aa before sUted. In Buries
V. Williams, the case involved a collision of ia-
terest between North Carolina, Tennessee, aad
the United Slates, under tbe censiona by tke
former to the two latter, in which this eosrt
reviewed all tlie acta of Congreaa and of tks
two States on the subject, and the motirea of
the parties, to ascertain whether the casus fo-
deris bad ever nriseB. Tbe ease also iavohsl
P««ws IS.
IBM
Thb Bxaib cur Bsodi Isurd v. Thx Btazb or llAauAOHraRn.
T»
tki eonatnictfoB at the eompftet between Ten-
neuee ud the United 6Ute«, mmie in 1800.
The oivirt oee thia language in rplation to it;
"The metnben of the American (fttnily posveaa
unple meana of defenae under the Conatitution,
wbloh we hope asw to come wtU verity. But
faap^Ij' for our dameetlc harmonf, the power
of aggreaafve operation againtt each other ia
taken awaf." It i« diSknlt to imagine what
other meana of defcnae exlkt«i] in auch a ease
nnleaa thoM which the eonrt adopted, bjr con
■trufng the aota radted, aa the eoutracta of in
dependent Statea, bj those mlea which regulate
eontncta relating to territorj and boundary.
S Wheat. BSD, S33, S38. In De U Croii v.
Chamberlain, it waa held, that "a queation of
diaputed boundary between two tOTereign, In-
dependent nations, is indeed more properly a
■abject tor diplomatic discuaalon and of treaty,
than of Judicial investigation. If the United
State* and Spain had settled thl« dispute by
traatT, before the United States extingniabed
the claim of Spain to the Floridas, the boundary
Hxed by sneh treaty would have concluded all
Srties." la Wheat. 600. Accordingly, in
irconrt t. Oaillard, which arose on a British
Ent made in 17T7, the court decided the case
reference to the treaty of 1T63, the acts of
king before the revolution, the effect of the
deelaratlon of independence and treaty of peace
In 17B3, in order to ascertain the original
boundary bet ween Florida and Oeorgla, <hi
which the whole case turned, 12 Wheat.
SS4. In Henderson t. Poindexter, the same
point arose, and the tame course waa taken ;
the treaty of boundary with Spain In 1795 was
also coneidered by the court, as well aa the ces-
don by Georf^a to the United States in 1602,
and Uie various acts of Congrcsa on the
T4S*1 •subject. IS Wheat. 630, SM, etc.
In Patterson v. Jenckes, the title depended on
the boundary between Georgia and the Chero-
kees; and the only question waa, as to the ter-
ritorial limits of the Statr, according to the
treaties with them and that SUte, which the
oonrt defined, and decided accor^ngly. 2
Peters, 226-227, ete. Bo they had previously
dona in various cases, arising on the boundary
between North Carolina and the Cherokees. 1
Wheat. ISS; 2 Wheat. 2fi; 9 Wheat. 073; 11
Wheat. S80. In Foster and Elam v. Neilaon,
two questions arose: 1. On the boundary of
the treaty of 1803, ceding Lonislana to the
United States, aa It waa before the cession of
of that treaty. Both claimed the territory ly-
ing north of a line drawn east from the Iber-
vfUe, and eotendlng from the HIaaiaaippi to the
Perdido. The title to the land claimed by the
Crtlea, depended on the right of Spain to grant
ids within the disputed territory, at the date
of the Bpaniah grant to the plaintiff, in 1804.
He claimed under It, aa being then within the
territory of Spain; and conflrmed absolutely
by the treaty of cession; the defendant rMt«d
OB hia poeseulon. On the first question, the
eonrt held, that so long aa the United States
eontested the boundary, It was to be settled by
the two governments, and not by the court;
bnt If the boundary had been settled between
Franca while she held Louisiana, and Spain
wblla sha hdd Florida, or tba Dnltad SUtes
and Spain had agreed on the boondar;
after IB03, then the court could decide it aa «
matter bi-arine directly on tlw title of t^e
plaintiff. On the sci-onJ queation, they held,
that as the government had up to that time
construed the eighth article of the treaty of
1819, to he a mere stipulation for the future
Gunflnnation of previous granta by Spain, to be
made by some legislative act, and not a prsaent
confirmation, abeolute and iinal by the mere
force of the treaty itself, as a supreme law of
the land, the court was bound not to give a dif-
ferent construction. On tluit construction, the
ijuesUon was, by whom the canflrmation should
be mndei the court held the words of tba
tresty to be the language of contract, to be ex-
ecuted by an act of the Legislature, of course
by political power; to be exercised by the Con-
gress at its discretion; on which the oourt
could not act. llut the court distinctly recog-
nized the distinction between an executory
treaty, aa a mere contract between nations, to
be carried into execution by the sovereign
power of the respective parties, and sn execu-
ted treaty, effecting of itself the object to ba
accomplianad, and daUned the line *be- (*T4T
tween them thust "Our Constitution declarea
a treaty to be the law of the land. It ia conse-
quently to be regarded in courts of justice, as
equivalent to an act of the Legislature, when-
ever it operates of itself without the aid of any
legislative provision. But when the terms of
the stipulation inqrart a contract; when either
of the parties stipulate to perform a particular
act; the treaty addresses Itself to the poiiticaJ,
become a rule for the court." Adopting tha
conetniction given by Congress, and the bound-
ary being disputed in 1804, when tlie grant waa
made, the court considered both to be political
questions and held them not to be cogniiatde
by judicial power. 2 Peters, 253, 209, 300,
309, 314, 316. All the principles laid down in
thia case were fully considered and affirmed In
The United States r. Arredondo, which arose
under an act of Congress, submitting to thia
court the final decision of controversies between
the United States and all persons claiming
lands in Florida, under grants, etc., by Spain,
and preacritdng the rules for its decision,
among which was the "stipulstlons, of any
treaty," etc. Thus acting under the authority
delegated by Congress, the court held that the
■viTi!"tn]ction of the eighth article of the treaty
of 1810, by its submission to judicial power,
became a judicial question; and on the fullest
consideration, held, that it operated as a per-
fect, present, and absolute confirmation of all
the grants which come within its provialoo.
That no act of the political department re-
mained to be done; that it was an executed
treaty, the law of the land, and a rule for the
court, e Peters, 710, 73S, 741, 742, 748. In
The United States v. Percheroan. the court, oo
considering the necessary effect of this eonstrne-
tion, repudtsted that which huil been given In
Foster and Blam v. Neilson, 7 Petera, 80. In tha
numerous cesea which have arisen since, tha
treaty has been taken to be an executed one. a
rule of title and property, and all questions
arising under it to be judieini; and CongreM
has eonflnned the action of the court whenavai
ISt*
74J
fiOrBKHI CODBT or THB UldTO StATt
ry. In New Jenej t. New Tork, the
eourt were unanimous in considering the <''a-
puted boundary between theee Stctei, to be
within their original juriBdiction, and reafGrm-
Ing the Juriidlction of the circuit courts, in
cases between parties claiming Ian da under
grants from different States; the only dtfler-
•nee of opinion wae on one point, sugeested by
one of the judges, whether, a« New York bftd
not appeared, the court could award compul-
MTT proeesB, or proceed ez-parte; a point
which does not arise in this cause, and ne«d
348*) 'not to be considered In its present
■tsge, as MasBachnsetts has appeared ana plead
to the merits of the bill.
If jiidi<''nl authority is competent to settle
what is the line between judicial and political
power and questions, it appears from this view
of the law, as administered in England and the
court* of tlie United States, to have been done
without Roy one decision to the contrary, from
the time of Edward III. The statute referred
to, operated like our Constitution to make all
3uestiona judicial, which were submitted to ju-
icial power, by the parliament of England,
the people or Legislature of these States, or
Congress; and when this has been done by the
Constitution, in reference to disputed bounda-
ries, it will be B dead letter if we did not exer-
cise it now, as this court has dona In the cases
referred to.
The course of the argument made it neceasa-
ry for the court to pursue that which has baen
taken. Having disposed of the leading objec-
tion to jurisdiction, we will eiamine the others,
it lias been argued by the defendant's coun-
sel, that by the declaration of independence,
HassBchusetts bcnme a sovereign State over
all the territory in her posBession, which she
claimed by c'mrtcr or agreement; in the enjoy-
ment of which she cannot be disturbi'd.
To this objection there are two obvious an-
swctb: lit. By the third article of confedera-
tfon, the States entered into a mutual league for
the defense of their sovereignty, their mutual
and general welfare; iK'ing thus allies in the
war of the revolution, a settled principle of the
law of nations, as laid down by this court,
prerented one from making any acquiBitlon at
tbe Hpense of the other. 12 Wheat. 626, 528.
This Bilisnce rontinued, in war and peace, till
1788; when, 2d. Msssachusetts surrendered the
right to judge of her own boundary, and sub-
It Is said, that the prople inhsbiting the dis-
puted territory, ou;;ht to be msde parties, as
their rights are affected. It might with the
same reason be objected that a treaty or com-
pact eettling boundary required the assent of
the people to make it valid, and that a decree
nnder tbe ninth article of confederation was
void; as the authority to make it was derived
from the l^gislnlire power only. The same ob-
jection was overruled in Ppnn v. Dsltimore;
and In Poole v. FlPeftPr, this court declared that
an agreement between States, consented to by
Congress, bound the citizens of each State.
There are two principles of the law of nations
T4»»l which would protect thi
Eoptrty: li>t. That gmnts hy a (jovernment,
facto, of parts of a disputed tarritory in it*
ihalataito
to property are respected and saered. ■
Wheat. G8Bi 12 Wheat. 635: 6 Peters, 71S( T
Petara, SS7; 8 Petera, 446; B F«t«ra, ISS; U
Peters. 330, 718, ete.
It has tieen contended that this eanrt eaaMt
proMod in this cause withoat some px>eM» aad
rule of dBcisiOQ prewribed appropnat* to tk
case; but no question on proeata ean aria* m
these pleadings; none is now necc— .ry, aa tka
defendant has appeared and pleaded, which bIm
in itself makes the first point in the eauae. irttk-
out any additional proceeding; that la, whathv
the plea shall be allowed if sufficient in law U
bar the complaint, or be overruled, as not bMsf
a bar in law, though true in fact. In tbia atUs
of the case, it is that of The Nabob t. The Kaat
India Company, where the plea waa overralid
on that ground, whereby the defendant was pit
to an answer, assigning additional grounds, ts
sustain a motion to dismiss; or if the plea bal-
lowed, the defendant must next prove the tmth
of the mattera set up. When that ia done, the
court must daoids according to tbe law of
equity (1 Vea. Sen. 448, 203), whether tbe
agreementpleaded shall settle, or leave the bound-
ary open t« a aetUement by our judgment, ac-
cording to the law of nations, the ehart«ra fraa
the crown under which both parties claim, as ia
6 Wheat. 376; by the law of preacripti<«, a*
claimed by the defendant, on tbe aatne prinei-
pies which have beau rules for the action of
this court in the case. 1 Ves. Sen. 463; » Pa-
tera, 700.
It is further objected, that though the ctnirt
may render, they cannot execute a deerse with-
out an act of Congress in aid.
In testing this objection by the comnoa law,
there can be no difficulty in decreeing, a* ia
Penn v. Baltimore, mutatis, mutandis. That
the agreement is valid and binding between tkt
parties; appointing commlsaionen to ascertaia
and mark the line therein dpalgnated; order
their proceedings to be returned to thecourttt
Uall. 412, note); decree that the parties sbonld
quietly hold according to the articles; that tke
citizens on each side of the line should be bonad
thereby, so far and no farther than the Stalta
could bind them by a compact, with the assent
of CongTcM. II Peters, 209; I Ves. Sen. 455;
1 Vm. Sen. supplement by Belt. 195, 197. Or
f any difficulty should occur, do as declared in
1 Ves. Sen.; it the parties want 'any. {'lit
thing more to be done, they must resort to an-
other jurisdiction, which is appropriate to the
cause of complnint, as the king's bench, or the
king in council. Vide United States v. Petera.
6 Cranch, 116, 13fi, case of Olmstead; nakt
the decree without prejudice to the United
States, or any persons whom the partiaa ooaU
not bind. And in case any person should ob-
struct the execution of the agreement, the part;
to be at liberty, from time to time, to apply U
the court. 1 Ves. Jun. 454; 3 Ve*. S«n. IK.
196. Or, as the only question is <me of juri*
diction, which the court will not divide, tber
will retain the bill, and direct the partiea to s
forum proper to decide collateral questiona. 1
Ves. Sen. 204, 206; 2 Ves. Sen. iSt. S67; 1
Ves. Sen. 4Mi 6 Cranch, 116, 136. On Ih
Peten IS.
Tbi Btati or Riiooa ULiifD *. Thb Btatb of MABBACHOmEm.
BtK^r hnn'l, ihoiild the •.greement not ba
held blnling. the court will decrre the bounil-
KTJ to be ns''ert«ined agreeably to the charterB,
arrordirg tn the it1ter«i eireumstanueB of the
which the boundarj being eatabllehed,
dvilty or criminaily, ajeording to the Uwt of
the State, In which the act whieh violatea the
rig^it i» committed In ordinary ease* of bound-
ary, the functiona of a court of equity eoniiat
in aettllng it by ■ final decree, defining and
eondrming It when run. Exceptiona, a* they
arise, must be acted OD according to the cir-
^inst the king, for
the plain reason given in 4 Co. 6S, a.; 7 Com.
Dig. by Day, 83; Prerog. D. 78; 3 Bl. Com.
2S0; "that the king cannot command hlmaelf."
No execution goea out on a judgment or decree
TinRt him, on a monitrona de droit or petition
right, or traverae of an inquisition which
had been taken in his favor; for thia reason,
that as the taw givea him a prerogative for
the benefit of his aubjects (1 Bl.Com.ZSS), he
ia preaumed never to do a wrong, or refuse a
ri^t to a subject; he is presumed to have done
the thine decreed, by decreeing in his courts
that it snail be done; such decree fa executed
by the law aa aoon aa it is rendered; and though
proceaa is made out to make the record com-
plete, it ia never taken from the office. Co,
Ihit. leS; 9 Co. OB, a.; T D. C. D. B3. The
part^ in whoae favor a decree Is made, for re-
moving the lands of the king from the posecs-
•ion of a subject, or drclaring a seizure unlaw,
ful and awarding a writ, de lll>ertate, is, eo in-
1BI*] stantl, dpemed to be io actual 'posscs-
•ion thereof; so that a feoffment, with livery of
•eizin, made before it Is actually taken, [a aa
valid as if made afterwards. Cro. £1. Ii23; S.
P. 403.
The same principle was adopted by the em-
inent jurista of the revolution, in the ninth
article of the eonfederiition, declaring that the
sentence of the court in the cases provided for,
abould be flnal and conclusive, and with the
other proceedinKB in the case, be transmitted to
Congress, and lodged among their acts, for the
security of the parties concerned, nothing fur-
ther bein^ deemed necessary. Tfae adoption of
this principle, was indeed a necessary effect of
the revolution, which devolved on each State
the prerofiative of the king as he hadheldit in
the coioniea (4 Wlieat. 661; B Wheat. 'i84,
S88) ; and now holda It within the realm of Eng-
land; aubject to the presumptions attached to
It by tbe common law, which gave, and by
which it must be exercised. This court cannot
presume, that any State which holds prerogative
rights for the good of its citizens, and by the
Constitution has agreed that those of any other
State shall enjoy rights, privileges, and im-
munities in each, as its own do. would either
do wrong, or deny right to a sister State or its
ritizens. or refuse to submit to those decrees of
tli'S court, rendered pursuant to ita own delc-
rtcd authority; when in a monarchy ita (nn-
L. ed.
damental law declares that such decree exscirtn
itself. When, too, tbe biglicst courts ol a king*
. dom have most solemnly declared that when
the king Is a trustee, a court of chancery will
enforce the execution of a trust by a roni
trustee (i Vea. Sen. 453); and that when a for-
eign king is a plaintilT, in ■ court of equity.it
can do complete justice; impose any terma it
thinks proper; has him in its power, and com-
pletely under its control and jurisdiction [3
Bligh. P. a 57) ; we ought not to doubt as to
the course of a Rtate of this Union ; as a contrary
one would endanger its peace, if not ita exist-
ence. In the case of Oimstead, this court ex-
pressed its opinion that if State legislators may
annul the judgments of the courts of (he Unitea
States, and the rights thereby acquired, the
Constitution liecomes a solemn mockery, and
the nation is deprived of the means of enforcing
ita laws, by its own tribunal, i-o fatal a result
must be deprecated by ail; and the people of
every State must (eel a deep Interest in resisting
principlea so destructive of the Union, and in
averting consequences so fatal to themselves.
5 Peters, IIG, 135.
The motion of the defendant la therefore
overruled.
*Mr. Chief Justice Taney, dissentlngi [*7ftS
I dissent from the opinion of the court, upon
the motion to dismiss the bill. It has, I find,
been the uniform practice in this court, for tbe
justices who dilTered from the court on con-
stitutional questions, to express their dissent.
In conformity to this u>B{fe. I proceed to steta
briefly the principle on wliich 1 differ, but do
not, in this stage of the proceedings, think it
necessary to enter fnity inio the reasoning upon
which my ojunion is founded. The flnat hear-
ing of the case, when all the facta are beforv
the court, would be a more lit occasion for ex-
amining various points stated in the opinion of
the court in which I do not concur.
I do not doubt the power of this court to
hear and determine a eon trove ray between
States, or between individuals, in relation to
the boundaries of the States, where the suit is
brought to try a rigbt of property in the soil,
or any other riglit which is properly the aub-
ject of judicial cognizance and decision, and
wbich depends upon the true boundary line.
But the powers given to the courta of the
United States by the Constitution are judicial
powers; and extend to those subjects only
which are judicial in their character; and not
to those which are political. And whether the
suit is betweeu States or between individuals,
the matter sued for must be one which is
property the subjei^t of judicial cognizance and
control, in order to give jurisdiction to tbe
court to try and decide the rights of the parties
to the suit.
The object of the bill filed by Rhode Island,
as stated In the prayer, is as follows: Tliat the
northern boundary line between your com-
Elsinants and the State of Massachusetts may,
y the order and decree of this honorable court,
be ascertained and established, and that tha
the appurtenances mentioned, described, and
grsintfrd, in and by the said charter or Mten
patent t« tha said Colon; of Bbodo Island and
m
BvntMM CouBT OF TUK UrnntD Srina.
ftOTldenra PltntationB. hercinberorc *et forth,
■nd running on thr north, an cnut ani] west
Uae dravm three miUs smith of the Hutui
*kid Cliarlea River, or of any or every part
thereof, may be restorrd and confirmed to your
complainant, and your complainant may be
S|uieted in the full and free enjoyment of
luiftdiction nnd sovereignty over the same
the title, jurisdiction, and anvereignty of the
taid State of Rhode Isiand and Providence
Plantations over the same, be confirmed and
estibllBhed by the decree of this honorabli
7rs*] court; and that your complainant 'may
h>re such other and further relief in the prem-
!■'• aa to this honorable court shall seem meet,
aiid conaistent with equity and good eon-
It appeara from this statement of the object
c' the bill, that Rhode laland claims no right
of property in the soil of the territory In
troversy. The title to the land is not in dii_
between her and Massocbusetti. The subject
matter which Rhode laland seeks to recover
from MaaaachuBetts, in this suit, Is, "si
Eignty and jurisdiction," up to the boundary
line described in her bill. And she desires to
establish this line as the true boundary between
'.he States, for the purpose of showing that she
is entitled to recover from Massachusetts the
sovereignty and Jurisdiction which Massachu-
setts now holds over the territory in question.
Sovereignty and jurisdiction are not matters of
property; for the allegiance in the disputed ter-
ritory cannot be ft matter of property. Rhode
Island, therefore, sues for political rights.
They are the only mattere in controversy, and
the only things to be recovered; and if she
eeeda in this suit, she will recover political
rights over the territory in question, which an
now withheld from her by MaseachusettB.
Contests for rights of sovereignty and juris-
diction between States over any particular ter-
ritory, are not, in my judgment, the subjccte
of Judicial cognizance and control, to be re-
covered and enforced in an ordinary suit; and
■re, therefore, not within the grant of judicial
power contained in the Constitution.
In the ca^e of New York r. Connecticut,
Dallas, 4, in the note. Chief Justice Ellsworth
says: "To have the benefit of the agreet
between the States, the defendants below, who
■re the settlers of New York, must apply to i
court of equity, as well as the State herself^
but in no case can a spccillc performance be
decreed, unless there is a substantial right of
•oil, not a mere right of political jurisdiction,
to be protected and enforced."
In the case of The Cherokee Nation v. The
SUte of (ieorgia, 5 I>etera, 20, Chief Justice
Marshall, in delivering the opinion of the
court, said: "That part of the bill which re-
spects the land occupied by the Indians, and
prays the aid of the court to protect their poS'
doubtful. The
it might, perhaps, be decided by
profKrcaae, with proper parties.
qaestion of
this court, i , , , , ^
But the court is asked to do more than decide
on the title. The bill requires us to control the
legislation of Georgia, and to restrain the exer-
tion of its physical force. The propriety of
S64*] such an •interposition by the court may
b» well queationed. It savors too much of
the •xerciae of politicaJ power to be within the
proper provlnca of the Jmlldftl deps
But the opinion on the point respecting pnitics
makes it unnecessary to decide thia questiog.'
In the case before the court, we are caEid
on to protect and enforce the "mere political
jurisdiction" of Rhode Island; and the biO of
the complainant, in effect, asks uo to "oootiol
the Legislature of Masaacbuaetts, and to restrain
the exercise of its physical force" within the
disputed territory. According to the opinions
alrave referred to, these questions do not behng
to the judicial department. This construction
of the Constitution is. In my judgment, the
true one, and I therefore think the proceedings
in this case ought to lie dismissed for want of
jurisdiction.
Mr. Justice Barbonr said that he coneumd
in the result of the opinion in this case.
That this court had jurisdiction to nettle the
disputed boundary between the two Stata^
litigant before it. But he wished to be undsf-
Mr Justice Story did not sit in thia cue.
On consideration of the motion made by Hr.
Webster on ■ prior day of the present torn ol
this court, to wit, on Monday the IGtfa day of
January, A. D. 1B38, to dismiaa the complain-
ant's bill filed in this case for want of jurisdic-
tion, and of the arguments of counsel thereupon
had, as well In support of, as against the said
motion: It i* now here ordered and ■djudgid
by this court, that the aaid motion be, knd the
same is hereby overruled.
rBE STATE OF RHODE ISIANa
State allowed to withdraw voluntary appca
The State of MassaehBKtta, after haTtnt a^
jearrd to praceis tasited asslnst her, at tbe salt ^
:lie State of Bbode Island, on ■ bill ared for tbe
lettlemtnt at bouodarTi and tftvr havlDE Bled an
iniwer and plea to the bill, and having falird la a
_-..-_ .. .. .^. ^.,. i ^t of JurlwllctM.
. on motion of her ci
appearance.
iinsel, allowed to wllbdiaii
Intended ti
In the case of Tbe Bute of Bhode Island v. tW
State at UaiuchnSflts, ante, paRe SQT. the twit
did not mean to put ihe larlsdlcllon ol tb« Sa-
preme Canrt on the groond thai JurladlctlOB vaa
assumed In eonscquence of the Slate ot Uaaaacba-
—"- havlog appeared la that cause, it was oaly
*--* *- saj. that the appearance of Ibe Stat*
■■- If conslderlr -"
— appeared, the court would not have as-
sumed Jurladlctlon of the eaae. Belog sattsHed tW
court bad Jurlidlctlon of the aubject matter of tkt
bill. BO far at least as respected tbe qaeatloa «(
bauudan-, all Inquiry as to (he nuxle and m»mmn
In which tbe State was to b« brought into coaiC
or what would be tbe course of proceeding U Ite
State decltaed to appear, became entlrelr iiansiM
be well oetUcd, that M
Tna SiATT. w Mahhachusrtb ads. The Stati or Rhodi Isiajb.
I of procvo. ao cocrdTc
MR WEBSTER, fai Iwhftlf of th« SUte of
Hauachuaetta, as her attorney and ooun
w) in court, moved the court for leave to with
dnw tile p>B filed in this caM, on the part of
tbe State of MauacfauMtta; and also the ap-
pearance which baa been entered in thi* court,
for the uid SUU.
Hr. Eaiird, counsel for tbe State of Rhode
bland, moved the court for leave to withdraw
the general replieation to the defendant's plea,
in bar and answer; and to amend the original
Uli.
Mr. Webster, in support of hia motion, stated
that the Governor of the Btate of Masaachu-
setts has tpven him aiithorit; to represent the
State; ana to have it determined by the court,
whether it had jurisdiction of the case.
This authority is dated November 30th, 1S33.
It diiecta him to object to the juriadiction, and
to defend tbe cause. The appaarance of Maa.
7ftff*]aachuaetta waa voluntary; it waa not 'In-
tended, by the Bppesrnnce, tn admit the validity
Moasaehusetta would auatain any prejudice by
this course. If the court bad no juriadiction
in the matter act out in the bill, the appi'arance
of the State repreaented by him would not give
It. Jt was thought moat respectful to the
eourt, and proper in the cause, to file the plea
with sn intention to move the question of
jurisdiction, at a subsequent time, Notliing
has been done by the State of Massachusetts
since; and this court has determined not to
diamias the Mil of tlie complainanta.
Tbe court has given an opinion in favor of
tbeir Jurisdiction in the ease. In the course of
the arguneut, it appeared that certain difficul.
ties, which misht nave existed in the ease, liad
been removed by the appearance and pies.; that
jurisdiction was affirmed by the appearance and
plea. It was aaid, if the question was on the
bill only, the situation of tho case might be
different.
There is a grrat deal from which it may l>e
inferred that if Masiachuaetta had stood out,
contumnciously, there would be no authority
In the court to proceed against her in this ease.
But it waa not for that State to atsnd off, and
put the court to defiance. If, thnn, the Stale,
by considers tiona of respect; if from a dusire
to have the question of juriadiction settled,
Massachusetts naa appeared, this court will not
permit advantage to tie taken of such an iwt,
induced by such motives, and for such a pur-
It Is the desire of the counsel for the State of
MassachuFctts to withdraw the plea and appear.
ance; and to place the case in the same situation
aa it would hnve been bad there not been process.
If a fair inference may be made, that the State
has appeared to the proeesa of the court, leave
Is askei to withdraw the appearance. It will
be determined, hereafter, wnat course will be
puraued by the State of Masaachusetts.
Mr. Hasard, sgainst the motion made by Hr.
Webster, cited Knox ft Crawford v. Summers &
iliomas, S Cranch, 421, 490; 1 Cond, Rep.
007. In that «M«, It ww deoided that tbe ap-
pnarani-e of the party was a waiver of »B tka
errors in the proceedings. In that ease, oae of
the parties was out of the jurisdiction of tfcs
court; and yet, having appeared to the proeesa,
the Tight of tbe court to proceed In the cms
could not be denied.
The authority given by tlie Governor o( tha
State of MaesBchusetts, 'which is of [*ISf
record in this case, la ample to all the purposes
of this suit. It is an authority to appear and
defend the esae, and to object to the jurisdie-
tion. Gan the counsel of the Slate disappearl
If they do, they can carry nothing with them.
The argument which waa submitted to tba
court, on the motion to diaraiss this cause, pre-
cludes this. They cannot disappear, and earrj
the plea with them.
The application is heterogeneous in its ehar-
acter. It is to withdraw the plea; this may b«
done, and the court may allow It. It is also
to withdraw the appearance; this is cantr»-
dictory to the other application, and is mad*
by the State of Massachuaetts, denying its be-
ing bound to comply with the proeesa, aft«r
having appeared to It.
Hr. Southard:
By the facta of the caae, an answer is given
to the motion on the part of tbe State of Mas-
aachusetta. A bill was filed on behalf of the
Slate of Rhode Island, and an application was
made for process. After advisement, the case
being held over for one year, the process waa
ordered, and was served on the State of Massa-
chuaetta. The State then gave a written au-
thority to counaet to appear in the cause, to
object to the jurisdiction, and to do whatever
was necessary in the suit; and an appearance
was entered. After this, a plea waa put in to
the merita, and not a demurrer to the juriS4Uc-
tion of the court. The delay of the State of
Rhode Island to proceed in the ease, can have
no effect on the cause. The question la, whether,
after appearance, plea, and answer, the party
can withdraw from the cause, and the cause
stand as if no appearance had l>een entered.
The appearance of the counsel for the Stata
of Maaaachuaetts was general; and it was fol-
lowed by an application for a continuance, and
for leave to plead, answer or demur. At tho
following term in January, 183S, a plea and
answer were Bled. At the January Term, 1S3S,
an agreement was made by tbe counaet in th*
i-ause, that the complainant shonld file a repli-
cation within six months. This waa done, and
in 1B37 the application of one of the counsel
for the complainant for a continuance was op-
posed and was argued by the counsel for the
State of Msssachu setts. Thus the whole action
of the counaet for the defendant waa such' as a
party fully before the court would adopt and
pursue. There was no question mode as to the
jurisdiction. The appearance was not followed
by a motion to dismiss the bill on that ground)
nor was the general appearance explained by
its being followed by such a motion. After all
these proceedincB on behalf *of the [*7ftS
State of Uassachusetta, and after the lapse of
four years from the appearance of the State by
the authority of thegovemor,giving full power
to counsel to act in the eauae, a motion to dis-
miss the cause for want of jnrisdiotioB waa
made by the State of Massachusetts, and wu
voued. TUa motion havinc f>U«^ the wntt
Burma Covwr or tbc Unmo Statm,
an now aiked to contider tha e«M mi if MaeM-
diUMttt bad not tppf^ared; and bb if procees
bad not been issued in the cause.
It appears that upon a ntntement of theeaae,
no .further reply to the application on the part
of tlie State of MaBsachuaetts is noetaa&rj.
Ttw purpose of it is to avoid the effect of the
judgment of thji court on the motion to dismiss
thla bill, to withdraw from the cause. Thii
could not be done in a private eaae; and whj
■hould it be allowed fn a case between States!
The counsel KemB to found bis motion on
■onwthing in the caie, by which it would ap-
pear that if no appearance had been entered,
the eonrt would not have taken Jurisdiction of
the canae; and desires, therefore, to put him-
self in the situation be would have been in bad
he not appeared. Suppose a demurrer to this
jurisdictioo had been put in, could the party
after the question liad oeen argued, and decided
against the demurrer, move to dismiss the case
for want of Jurisdiction 1 This waa Mver
beard of.
Mr. Webster, in reply:
The authority to the counsel for tbe State of
Massachusetts to appear in the cause, is no part
of the record, and is no pert of the case. Tbe
object of the motion is, that if anything has
b«eo done by Massachusetts to her prejudice,
she may have liberty to withdraw it. She has
done it by mistake— proeeas having been issued
against her, she came in and appeared to it.
Is it conaidered that this court has a right to
issue process against a State; and that it is the
duty of the State to obev the process. If this is
so, there is an end to the motion. But if the
right of the court to issue process la not deter-
mined, and yet the proceaa has been issued, and
the State of Maasacbuaetts has come in, and
h
iMue the pi
prejudice from having appeared for the pur-
poae of having the question of jurisdiction set-
tled. It Is yet to be determined, whether the
court can issue process against a State; and
Uaasachusetts is not to be entrapped by any-
thing done by her, before this aliall be decided.
If tbe State of Massachusetts, from respect to
TB9*] the 'court, has appeared, she saks tbe
eonrt to say that there is a right to issue proc-
eaa against * State, and she will obey; but it
wrongfully issued, she asks that ahe shall not
be affected by what sbe has done.
Mr. Justice Thompson delivered the opinion
of the eonrt:
A motion has been made on the part of tbe
State of Massachusetts for leare to withdraw
the plea filed on the part of that State; and
also to withdraw the appearance heretofore
entered for the State.
A motion has also been made on the part of
Rhode Island for leave to withdraw the gen-
eral replication to tbe defendant's answer and
Elea in bar; and to amend the original tall filed
1 this case.
The motion on tha part of the State of
aachuaetts, to withdraw the app<>B ranee I
fore entered, seems to be founded on «
supposed to have fallen from the court
present term, in the opinion delivers
the question of juriBdiction in this case.
thoneW ibat opinim )■ <>P« to the la.
iST4
that Jurisdietioa ta asanmed. In rnwsrminiw rf
the defendant's baring appeared in tbe cbms.
We did not mean to put the jurisdiction of the
court upon that ground. It was only intenfad
to Bay that tbe appearanoe of tbe State aqxr-
seded Uis neeesMty of conai daring the qnesiiuB
whether any and what course would hsTe beaa
adopted hytbe court, if the State had not im-
peared. We certainly did not mean to be
understood, that the State had ooneluded hv-
self on the ground that she had Tolnntarily
appeared; or that if she bad not, we eoold
not have asaumed jurisdiction of the case. Bat
being satisfied that we bad jurisdiction of tbe
subject matter of the bill, so far at least as
respected the question of boundary, all inquiry
as to the mode and manner in which the State
waa to be brought into court, or what woold
be the eoarae of procaeding if the State de-
clined to appear, became entirely unneoeasary.
But aa the question la now brought directly
before us, it becomea necessary to £spose of it.
We think, however, that tbe conrsa of deeisiMM
in this court, does not leave u* at liber^ to
consider this an open question.
In the case of The State of New JeraeyT.Thc
State of New York, 5 Fetera, 287, this questica
waa very fully examined by the court, and tbe
course of practice considered aa settled by the
former decisiona of the court, both before and
after the amendment of the Conatitutica,
which declared that the judicial power of the
United States shall not extend to any auit in
law or equity, commenced or proeecuted again it
a State by cititens of another State, or aubjccia
of any 'foreign state. This amendment [*Tlt
did not affect suits by a State againat auolbet
State; and the mode of proceeding in lu^h
suits was not at all affected by that wnend-
We do not propose to enter into thia qnettim
any farther than briefly to notice wbil t--
court has already decided upon tbe pracli-
thia respect. These caaes were reviewed i'
case referred to, of New Jersey v. New ^'
and tbe practice found to have been e»ts
by former decisiona of tbe court, as f -
went, was adopted. And the court we- -
farther, and declared what would be '
of proceeding in a stage of the cau-
which former decisions bad not four
sary to prescribe such course.
The court, in the case of New J*
Vork, commence the opinion by ^i-
ia a bill filed for the purpose o:'
and settling the boundary bel
States." And this ia precisclv
presented in the bill now bi'f
IS added, that Congress has p
the special purpose of prescri
proceeding in suits Initttuted
The precisn oueatioa v.
Jjesa. wa
Digitized byGOOgIC
IS!
Tui Statk of MABSACBUBinra ass. Thb State or Rhode laiiUtK
780
^ nilei for conductiDg biuineu In the
courta, IB gone into, and considered autficient
to •ulhoriM procena and prooeedingi against a
St«te; and the court adopted the practice pre-
•cribed in the case of Gray bod v. The Common-
WMlth of Virginia, 3 Dall. 320, that when proc-
•u in comtnoD law or in equity Bha.ll isaue
•igainit a State, it shall be served on the gov-
ernor, or chief executive magiatrate, and the
attome;f -general of the State. The court, in
that case, declined iBsiiing a dietringas to com-
pel the appearance of the State, and ordered,
U a general rule, tliat if the defendant, on
•ervlce of the subpo-na, shall not appear at the
return day therein, the eomplainnnt shall be at
liberty to proceed ex-parte. And the course of
practice has since bri^n to proceed ez-parte if
7«1*] the Stote does not appear. *And ac-
cordingly, in several eanes, on the return of the
process, orders have been entered, that unless
the State appear by a given day, judgment by
default will be entered. And further proceed-
ings have been had in the causes. In the case
of Chisholm's Executors T. The State of Geor-
gia, 2 Datl. 410, judgment by default was en-
tered, and a writ of inquiry awarded In Feb-
ruary Term, 1794, But the amendment of the
Constitution prpventcd its being executed.
And in other cases, commissions have been
taken out for the examination of witnesaea.
By such proceedings, therefore, showing pro-
gressive stages in cases towards a final hcanng,
•.nd in accordance with this course of practice,
the court, in the case of New Jersey v. New
York, adopted the course prescribed by the
general order made in the case of Grayson v.
TLe Commonwealth of ^'irginia, and entered a
rule, that the subptena having been returned,
executed si»ty days before the return day
thereof, and the defendant having failed to ap-
pear, it is decreed and ordered that the com-
pUinant be at liberty to proceed ex-f>arte; and
that, unless the defendant, on being aerved
with a copy of this decree, shall appear and
answer the bill of tha complainant, the court
will proceed to hear the cauaa on tha part of
the complainant, and decree on the mattnr of
the said bill.
So that the practice seems to be well settled,
that in suits against a State, if the State shall
refuse or neglect to appear, upon dne servies
of process, no coercive measures will be taken
If, upon this view of the case, the counsel
for the State of Massacbueetta shall elect to
withdraw the appearance heretofore entered,
leave will accordingly be given; and the State
of Rhode Island may proceed cx-parte. And
if the appearance is not withdrawn, aa no t«a-
timony has been taken, we shall allow the par-
ties to withdraw or amend the pleadings; under
such order as the court shall hereafter make.
Mr. Justice Baldwin disacnted.
Mr. Justice Story did not ait in thia ease.
On consideration of the motion made by Mr.
Webster, on Saturday, the 24th of February, A.
D. 1838, for leave to withdraw the 'plea ['783
Hied on the part of the defendant, and the ap-
pearance heretofore entered for the defendant;
and also of the motion made by Mr. Hazard,
on the same day of the preaent term, for leava
to withdraw the general replication to the de-
fendant's answer and plea in bar, and to amend
the original bill filed in this case, and of the
arguments of counsel thereupon had, as well
for the complainant as for the defendant; it is
now here considered and ordered by the cour^
that if the counsel for the State of Mansaehu-
setts shall elect to withdraw the sppearanca
heretofore entered, that leave be, and the same
is accordingly hereby given, and that the State
of Rhode Island mny proceed ex-parte. But
that, if the appearance be not withdrawn, that
then, as no testimony has been tiiken, the par-
ties be allowed to withdraw or amend the
pleadinga, under such order as tlw coort shall
hereafter make is the premisw.
ik3»
.dbyGOOgIC
awGoogle
APPENDrX.
OmtaMHS I'M Araunt»t» of (M Ooamtet fur tUf PlainHn tit Bmr; •■« if Ifr. 0«v«r, OoanMl /ar
plalnTin
imcDt at Ueiira. I^w
« and B«DtsB tor tbt
two forty arpcnt !oti In quMtloa
iropcrtr Id the (raDtCM thereof, aod
1 18318111, wbkb «■■ protMtfd and
of Ccsslai
t of thli propoallloa. tbe tcrt
— ■ — " — -Iffl ware InitBtad a
In. ^ t
■fir::
Spain BDd F^aaee. and th« Trei
iia BUtea.
■ 'rlt'oV?
tnc oature of the ...„ .
ttiow two lota br the Siwnlab
mcnts rCKpectlvelj. Tbe bin
BpanUh arrhlres. at St. I>oul>. no. i, pun ii bu
12. and tbe ttret and coacliidlni pagr BS. wara r
Had on to damonstrate that tht lurrer waa oiaC
"• a duly authorlaed offlcer, and In punuanea (
— t made bj eompateot suthorltr.
how that, under the Spanlnb soTcrnmaDt (
Cpper LoulaiiiDi. thoM Iota were conaldartd an
ttvated at property, tbe deeds of eon»tjanca ma^
of them bT tbelr raapectlTa Kranteaa, bearlni dal
13d Jannary, ITTS. and 8tb April, 1781, In preaeot.
of tbe llentenant-niTemon. Don Pedro Plemaa
and Don F^anclio Crnut, wboat offlclal eharactar,
■nd whose altfuaturea were apcclB rally pro*ed,
were relied oa ; aa alao tbe poiaesilon, sola/ wltb
IhOM deeds, tn Loult ChancelUer, tbe Tendaa.
Krtld'O theac deeds, the InTenlnrj, sale and par,
tltlon of lb* property, real and pergonal, at lionli
Cbancelller. were loststed on ai eoDclaalTe proof,
Dot onli as a recognition of tbe right of propertT
In tbone trecta, by tbe authorities in Dpper LouHl-
aoa, but also by tbe bo preme power In the proTloce
of Loulalaaa; namely, the Oorernor-General Don
Esteban MIrO, whose decree, bearing dale the
2Sth Kehruary. ITST, la la erldence In the cauM,
and. In otidlti>ace lo which, the final decree of
partition, bearing data the 13tb day of September,
ITsT. vai mode, whleb adjudlcstea the properly In
ouestlon lo Marie Iioulse, the widow of Chancel-
Her, «■ lawful yendea thereof, at tbe aale of ber
buBband'a real and peraonal eelate, on tbe 12th
June, ITSS.
Tbe posseaalon of Harle lioulae, tba widow of
Loola niBncelller. going wltb said sale and parti-
tion (and prerloualy t«eaEnlied aa belog In her at
tbe death of bar buaband, by the rery terms of tbe
InreDtory, sale and partition), was alio referred
M by nfaJntir* eouDiel In demon>trattot> of tbe
poalllon. that, at that date, tbe lota were recog-
nlied bv the law of the land aa "property."
3. Thai Uarle I.oalae CbaacelUer, so yeated wltb
Iba right o( property and the poaaeaalon of those
two forty arpent lota, continued to be reated wltb
HUd right of property and also wltb tbe civil oo*-
aeasloo lb<-r<'or. al Ihe date of the Irealy of Ht. iTde-
fonaa, and of the SOth April, 1B03, reapeetlyely.
That no conreyar ■ ■■- — —- -•
I those
a flOth
The eaoDMl for the plaintiff cited yarlona an-
thoritlea from the dill and flpanlah Law, to abow
tbat the Jug In re became yeated In Harle Louise
Cbaneelller by Ibe posaeaalon and title of her hua-
tand, and partlcnlarly by tbe adjudication to ber
Of those Iota In 1787 ; and remained In her at the
date ot tbe Treaty ot Ceulon. and that tbe civil
poaaesaloD. as nnderatood In Spanlib Jurisprudence
at that date, was nino vested in her.
The pos»e*s<on of St. Cyr. as Far as such posses-
T«-»'l slon was shown to have eilaled -at all. was B, The e
contended to have been a posseislou subordinate the origins
to the right of property and posBCS^Ion of Uadame --*-'-
Chancallhr. The ■athorltle* of the Spanish and <
dvll law wara abawn ta eonrar In aatabllshing the ' i
t L. ed.
ot St. Cyr In thla a
sslon of the real owner, and *"■*"
TheM
va- M«ri
I the
re i Her.
tended that l. ._,..,_ _
Iioulse Cbancelller ot aald lola. iMiuld be al
and. on 'this point referred lo the peculiar nature
of those lots. To the physical Imposstbtllty ot
Madame Cbancelller remaining In actual occupation
or cnltliatlon of ibem after the fence, which alona
■eparaled the whole of the forty arpent lou from
the commoD paatura land of Bl- Louis, had fallen
down \ and to tbe tact. In eTidenca, that not only
Uadame Cbancelller ceased to eultlTBte. but that
every other praprlelor of tbose lota ceased to actii-
-1, .. ^1^ Aa^ the year 1TB7: and
thai tbe c ,
atanee. reaumed ot thaae lots, or a
■ — la the year 1808, i
until aomeL ._ ,__ _ _
namber of those lot* remained ...
ipled unlit many yeai
ffem
cullliated a ,
— rds, and nntll after the act af 'Co'ugresa bad
laed. eanOrmlng tbose lota to those entitled to
- the municipal law of Loalalana or Ulit-
it wa* contended tbat lo Imply abandonment bv
Ifadama Cbancelller, would be to vMt npoo her n
penal forfeiture from which every other proprletr'
had bean axemptad; and tbat no law ot Kraoer or
Spain baa been or could be shown, that authorises
aucb an Implication.
It was coDleoded that an abandonment by Uad-
ame Cbancelller, It It bad Uken place, must h<<">
bad the effect o^ reuniting tbe Iota to the klng'i
public domain : but, thai this gr>i-j=d Is al '
Incompatible with the evidence In the cans
demonatrates that Ibe original granta ht
recognlied and confirmed by the '-
.,„„,.-. .^* •••-refoie, tbat no t
no reuniting of tl .. ._. ..,
0 abandonment af them by any
i:BS
- — "r of Louis Chan
le or forfeiture, or proof of abandor
on to do that whlcb ahe not only
I by pbyalcBl causea from dolne. I
IS not rei^uired by law lo do. That
ore. be absurd and unjust to deciil<
inted to proof of her
■vlng totally abandone
The coiif-el for the plainlllf here referred
nongat other aotborltles) to tbe case of Kennedy
I others V. Uontgnmery, 12 Uartln's Itcp, T6. per
iam. "The Idea of ■ man losing bis rlzbt liv
: biinglng an action whlcb It was Impossllile be
^td brTng, Involvea a contradiction " See Pothler
Trail« des Obligatlona, MG : Pothler. Trall<> dea
Pmcriptlons. Kos. 32 and 23: 8 Cranch. 84. »1.
" was contended by plaintiff's counsel that II
maDlttal In thla caae tbat It waa Impossible
far Mn. Cbancelller to bring her action prevlona
to the Treaty of Cession : because : 1. Nobody was
la possession adverse ta her. Z. Nobodv coold
'lave been In possession- 3. She could nnt have
nCered or poa^poaed and cultivated It heraelf.
I. No law existed lo eompel her lo sue, to enter,
r the p
Intiff c
Bndrd tbnl
valid,
Qtd, tor lb« MUc NMOB, tad DpoD llw laiBa prlo-
tbc iUt( cf tb( coDflrtDitlODi Id (rliteocf. Id thii
Bf eommltilODerf, to IStO iDd 1811. rnndt (prcltl-
I7 to AugiiBiB Choieau. *■ iisIrdh o[ Bt. Crr. ik-
ilIDM of tbc orlgloiil gnnteeB, Sd. Tbe connnnt-
IIdd cSpcIed. EfDerallf, ot all tboup loti bi tlir
Act of CODKrcu DC tbe 13tb June. 1*<1Z. SiT The
Rinflrinillon hj tbe recorder o( land tlllei ol Ih»
two lots In quoitlDD to tbe orliiDal umiiteei and
tbelr Ipgal represeufallTei la 1815. r«tm«l lij- Mie
Ai:t of Conftre^x of 20lb April. ISlfl 4Ih. rV Ibe
Slut .rnniKr;. 1B.1I. b> Ibe Unlleil Sralea. In fsTor
ar fliiw cnlitlEd bf tbe law of tllHOurl to thoae
Ifd iij plalatir< eonnael tbat If
Id nol b« objKled prevlou* to 1h(
trMtj, or to tbe lOIb Mareb, IBO-I. In Hpner I^nUI-
ana. a forllorl. It could nol be ohject.-il R(t»rw«rda;
bKaiiae eitlry on the land wa* forbidden li; Ibe
roo'l 'actH of I60i and ISflT, UDrter bea*r penal-
tlM. 8pp Act of :f<ltb Uarcb, I8u4, icc. 14, and
Act of IBDT. aec lat.
It waa contended tbat all tbeae coDllrmBlloDa
and F>icb ot thrm Innt oiiKtaallv voM tor fraud>.
Inured to tbe nw of tbe orlcdnal grantrea. and their
belri or asalcna, and tbrrefore conflroK^ tbe origi-
nal tram of Ibe two arpenta In qnritlon. not tnr
tba benellt of tbe IndlTldual who waa namHl aa-
alsnee b,T tbe commlailonera. but of tbe Individual
or lndlT<duala wbo. bv tbe law of tba land, bad lb«
analltr of leeil rep reienta tire of tbe original iran-
fcea. tailing tbat lerm of "leital raprcsfniatlve' in
Ita eompretarnalre sense of b«lr or aaalKnee. and
Biipposing IbBi (he grantpea thprn-elres wire dead,
or bad made a coo»evance. or bad town deTeated b»
law, la faTor of a third person, of Ibelr estata and
Intercat In said fnrtr arpenl lota rn[«ctl»elj.
Tbe title of Marie Louise ChsncplllT. so vested
In her and ber aaslgna, waa. at tbe brlntlnf ot tbis
action, duty Tuted b; tbe taw of Ulsaonrt In tbe
plalDtlT.
Her- ■
" iw of Ml „ „ ,__. , ..^
beld adveraelT, sball bay* lb*
elteet as If tbe maker of tbe conTeranas waa In ac-
tuni poaaesslon at Ita date, and aball cooTei all
tbe rfcht which Ibe maker of tbe deed bad to tba
land deacrtbed la tbe deed : thus repeallnit or ab-
rontlnR the doctrine o[ tbe A □ pi □■ American law,
which renders null and Told a deed of land held
Vt a tbird person adrenelv to tbe maker.
_Ia the demon ilratl on of tbe title of Marie IiOalaa
Chancelller. and of tbe plaintiff, as ber anlgnee
(bj; n
! title
ent). I
plaintiff's
original
anf tbi
a title br prweripUoa; u4 that aocfe ■ mat
IncompatlbTe witb a title derived tttm tt»
'--' Iran tees bj renlar mesne asslniaMIK
-efore. tliat tba new species of dalnaa if
Ilea on in tbls court bT tbe defendant In arroc ta
bli printed brief, to wit : -Tbat tbe defendaat la
ertor la tbe le^l represantatlTa of botb OamadM
uud ftleraerFaii. for nbom tbe sarrCTa were Bala
and baa acquired wbateTcr title tber or •ItbM' W
them poHwased," mu^t be abandoned It tkat tt
presci-lptlon be here adtiered to. Tbe deflnlUe* «C
contend that tbc defendaol could at the aaiae Hmt
lake bi prescription, and be tbe lejtal repreaeatalt«a
„. .... _.._■„, — , ,. ,. _. ^ ,^ ^
B baaad o
formal lltic ^
•Ion derlTCd. i
parti or person, wbo, though not the rei
was or could be cooicIeDllously belleyed b
bj himself, and Ihoas claJmlnR Doder bin
™.... _..., 1 ^1 authorltlea In t—
thorltlea, tbe fotlowlns were parltcularlr read aai
irllcJ on: Hanupi del Abnrado Americano, tit- S,
lib. 2, TOl. 1, p. M>: 3 Partlda. Law, •; 1 ParlMi,
Law IS. 16; Febiiro. Mbrerla de lo* EMrrlbaDS^
ml V n<Ft evil u>n ■> n Ida. J DomafB (5™
book Sd. I*rM
1 'by Slra
I Collectloi
(exttacta tnm
>. bT
Cbotea
tbe defendant In bla brief In tbia emrl te-
wa7 of defense, "that tbe coatlrniBtlDa ta
rested la him a lefal title '
Iowa, tbeo, tkat
t iQstruetlaa, ar
t original gtvaaii tt
.. J tbe
Mart beTow. am
attempted lo be maoe araiiaoie in mia eoort.
Tbe plRlndfTa eouniel, In (he first placa. Inala'
tbat, admlltlng for the aake of arirnment tbat <
plaintiff bad eatabllabed hia prima fade case of ._
fal tllle In ^be^court below, no other defenae could
That tbe 0-.. „ .,
before the DIatrlct Court was tbat contained .. ._
tended to be contained In the three lOHtmctlona
pra»ed h" the defendant, and irlven with aome ad-
ditional Inatrnctlons hr the District Court to tbe
tan. and excepted to bT tbe ptalntllf, and whlcb
let. That If tbe
elalmtnit under blm
bT fortT. '
withoat I
WelT. prior 1
0, and that
til the 2M dsT ot luW, 1)
cODflrmed to Aiieiitite niolL__ _._
same lands la tbe declaration meatloned, the plalo-
tlff cannot recover In this action.
Sd If tbe Jury abatl And from tbe avldenee tbat
the defendant poaseeied the lots of land In the dee-
Uration menftonrd fer ten vara coneecuHeslv prl-
0 tbe Arst of Octoher, 1818. tba plaintiff ean-
wrrr vKpinioeo or Lnieoueo 10 oe. aioea oj loe aiH
mgMl laatruetloaa (iTca bf tha dletrlet Judfa,
sea 1" and, conaequentl;, aa tbe plaintiff clalma na
lllle Tinder blm. show tha le^l estate ont at tbe
plain HIT,
But tbls defense never was resorted ta helaw: aa
■ contrary, tbe loatrucllon of the jadxe. glTea
_j tba prayer of the plaintiff, "tbat the connnaa-
tloas ta Choleau could, at mo!<l. onlj operate a* a
nultclatm In favor ot the original Kruitees. and
ij — . d^tde the question of ttlle." waa vat rt-
by tbe defcndaot. tt :
.__ .ate now to eicepi to tl
to Uke Ibia '-- — ■" "
Mao. tha defendant taken tbe (roand bar* that
s farmer verdict and ludgment between the
le parties" la eooclnslve In tbls caaa acaloat tbc
Intiff.
lut no aneh KTOond was taken below. Tiue. that
s stated In tbe transcript that "tbe defendsat
3 In evidence the record of a Judimant ;" bri
tbe object at readlnt It does not appear : no t»
straellon vras called tor by defendant, and wne
waa flven tbat It was a bar to plalntira aetk«:
on the contrarr. tbe Inatructloas all go to Tcpd It
aa a bar. It seems, then, tbat It Is toa late nww ts
The counsel tor Ibe ptslatlff In error. ther«fM^
In replying to the new defense aet op, tbat tbe am-
BrmatlOB to Choteau operated aa a conTennce of
the lexal esUM, and to tbe defense of the Jadr
meat being a bar, did so with a protestando aMlaM
tbe admlsslbllltv of aucb frounds of defeai^ H
tbls court. In the preient condition of the rened.
Pmceedlng. then, to demonstrate the error irfllK
defendant's new posltlOD, to wit tliat the eoUr-
msllon to Cboteau operated aa a convevance of tka
legal estate, the eaunael tor plslDtiS eontiadti
that to give tbe con" • --^ "
be not only to cive
ant oefas. In tbe I1
nation
at tbe date of the conflrnatlon.
Thev contended If sucb a power wer
fiTeo by ConiresB. or allempted to he »lvt
eommlaatoners, nnder the act at IS09, \t would ts
constltnllonally void, aod oiiiht to Ire aa declairf
bj tbla court. That It would be a power In viaJi-
Ifon of tbe Treaty of reaslna. wblch ruarwoteed I*
tfaria Txnlse her lawful propertr. and In TtolartM
also of tbe Conatltutlan of the Catted Btatca. wbM
fnaraateea to every American citlsen their f-*^
of propertT. s
.-,'. In all eases smt
Tbat ir the conflrmatlaa
ore nf a Jndrm«nt. tt OM
e blading nn partlea and pHTlea. Mt
'. waa neither party dot tvli
pirher party dot privy.
Chntean waa ertOeaUy »
plalntiC asd tboae mtt
!■ Iba MM of HollliiinreTUi t. Barboar at •!. 4
PaUn'i Rep. 464, thli court ■•]' It dowD "llut b*
tha ranvral tiw or Ilia land, do court 1* anlhorlicd
to tandet ■ JudcowQt or decrm itaJnit anjone. or
Ua esiata, iiulll »ttrt due aoll<:« bj Hrrlee of proc-
■aa to appear and dptcnd. Tbln prlociple la dio-
rated br aatural luatlea, aad la oolr to ba departed
Irom In caaaa eipreaal; irarruiccd by law, and ex-
cepled out of IhH geaeral rule." The preMDt eaie
I* not a ease excepted, by the natare at It, or ax-
praaalr. out at Ih* (enaral rule.
Tbe bolted Slatea could bave bad do poaalbte In-
tereat In empowerlnf thoae coomlasloDera to m-
dor an ei-nana ludgiseDt, Or to dcTCat a man of bli
^operlJ bj a dacree or ludvmant made wllbout
■iTing nlm "due notice to appaar and deCend.
Bui In order to be convinced tbat CougrfM bad
no aucb Inteutlon, we baTO only to eumtne tbs
acta at 3d Uarcb, ISOS. creating tbe board at cam-
mtnlonera, and ol SStb Fri>ruarr. ISOn. aupplf-
mrntai tbcrpto. and ot tbe 3d Uarcb, ISOT, w^lcb
autborliei ronflnnatlana to tbo aiteut ol a aquara
leaEiie. eieludloE aalt aprlufa and lead mlnea. See
9 Story-a Law* of tba United SUtc^ B«e. DStl.
lOlS. 1060.
Tbe counael for tba plaintiff then axamlaed
tboie acta, asd contended, from tbelr letter, aplcit
1. Tbal
o aocb powar
a flTen to the conn
2. No oaceaalty for aacb power axlatcd.
8. No mtaua were ftven by tboae "*'
daa Judicial powar aa betwr — — '
partlaa.
193, wu referred to
tbe preaent caaa. Tl
TBT'l tbe claim waa to be •allowed
BpalQ. tbe prewnt ownership ^of^It, ■"
prlrata adrtraa
r. Vaaa& 1 Petcn'a Bep.
a principle applicable to
lurt tbare obierre: "If
1 repreaentatlvea. or bona flde
■ '1 be aacertalned In
. , '** ■"'' eHect.
..H^. _,. _. authority to compel parCtea aaaertlDg
conAlctlng Intereat to appear and iltlitale before
tbem ; nor to aunuoon wltoeiaea to eatabllih or re-
PI aucb Intereata ; and. noder aucb clrcumatancea.
cannot be praaumed that It waa the Intention of
•Itbar BOTOrnmeut to clotbe them wltb an authority
an Bummary and eoodualve, with meana ao little
BdaptEd to the attainment of tbe ends of aiibalan-
tlal Joitlea. Tbe validity and amouol of tba claim.
belDK oncE aacertalned br thpir award, tbe fund
nllAt well be permitted to paaa Into the banda at
■ny claimant ; and bla own rlgbta, aa well aa thoae
at all Dtbera who aaaetted a title to the fund, be
left to tbe ordlnarT cauraa of Judicial proceeding
Id (lia eslabllabed courta, where redreaa could b?
administered according to the nature and extent
of the rigbta and equltlei of alt the parties."
nua waa a eaae arising under the Treaty wltb
Spain, of 1818, the eleMUlb article ot wr '
, and under li
flva million* ot dollar
a Spain. t<
cld« an the amount and TBildlty of all aucb ctslmi
It waa contended by the plalntllTa eoauael tba
tbe tertoa of tbe abova decision are, a fortiori, ap
Much as.
lat. The case i
Bsera money ctali
3d. 1
er tbe Treaty ot IR1B was a
■oundtnjt Id damages, whow
nee r tain until tbe cammlsalon-
inea Ita amount and validity.
ity ot Cession -"' " "
a tbi
antee to tbe apeclflc land In tb._
Mlui>Dtly, tbe rlfbta of thoae who
.,^ . grantee lawtoIlT at tbe data of the
treaty and ot tbe connrmatloD.
The (rialntllTa counsel further referred to tbeei-
praaa provision contained In the varloua acts ot
OODcreaa passed for the relief of French and 8nan-
faib land ctalmanta alnea 1807. to show ihp con.
Btmetlon ilveD by Congresi of leglslatlTe language,
■raelaety tbe same *■> that whfcTi is contained In
[be acta of 1B05. ISOe, and ISOT. and which pro-
TlflOB expresaly repcla tba Idea of a conarmaclon
bavlDK the eSect of deciding oa tbe rlghta Of third
Tba Act of 8th Hay, 1823 (aec. ^ S Btory'a Iawb
Dnltad BEalea, 186B), and tba Act of Anrll 3?d,
I8S8 (aec. T, I Storv, SOiO), ware amons othera,
nartlcnlnrly read and relied on.
t Ii. «&
inr uBienaani oouiq doi eecspe intm lue aooTa
diffculty by taking the posltlDn that the eoinmla-
aloners "were not Judges, but "only agents." with
] State* "
To xbonr (bat aucb a doe-
fO In the terms In wblcb It Is
dsnt'i brli-r) Is UDtensble la
1 for tbe plaintiff referred to
made nor attempted to
Armed a grant tbereti
and l^rcnch authorlllo,. — ...,
eonflrmatlon to Choleau, assignee ot
made by tbe Spanish
' ■ -- of the
nd relsried to. clearly dem-
flnal graut, emanating fron
United Btalea. Is totally na-
if aven tbe cammls.
. their condrniallon
tbe effect of an orlg-
Besldea, It ta contended
aloners bsd expressly declared thcli
to Cboteau to ba, and to have tbe efft
loal grant by tba United Stalea Co bim, bis hell
and assigns, the conflrmallDn would still be ui
lllug against vested rlgbta, end " ~
-'■-•- lullUyi Inasmuch - " —
lid be an
jullltyi inotmucn aa it woum he unau-
thorised by tba acts ot Congresa uuder wblcb 11
■!■• nmrBRiMri tn be made Cooslderlng tbose acts
of authority," it must l>e _BdnilttcJ
that the a
jound bv then
legallv exercise a power oat
.jly not given, but excluded by their terms.
Tbe plBinllfTa counsel then proceeded to abow
the Invalidity ot tbe second new ground of de-
tense, namely, the former verdict and ludgment,
and conlended that this could be on bar. becnuip—
1. Ry the law of Ulasourl. wblcb an this [wlal U
the same as the law ot England, "a Judg- ['TflS
ment In one action of ejectment Is no bar to B
same defendant, and for the same premises.
Qara the counsel examined the law of ejectment,
difference t>eing that certain Actions, to wit. les^ie.
entrv and ouster, were not required to be alleged
by plalollff or eontesaed bv defendant In »I<<nurl.
Adama on Ejectment (by Tilllncbast) was rcfevrcd
to for the general doctrine, anil for tba law ■■
modlfled by the New York Legislature.
■mining tbe_record_lD each nsc, that the p
nera the counsel compared the
operated as a quitctelm In favor of tba plalntlUt,
an the nart of the United States.
for Che plaintiff In error then pto-
rall t
rlptloa
cripdf
mid n
^j'ssesslon of thirty years h.v .St. Cyr, and
hoae claiming under him, nor a prescription W<cd
lalmlni; under htm : nor a prescription baaed on a
oaaess[on of ten yean by the deCendant of tta«
The plaintiff's eoonael contended. 1st. Tbat tbe
ind was not the aub.lMt of >iri>wrlnI1on n-e-tn-ia
. . .. .._. ._._.__, p.g„, therenf-
That 1
t effect of prescvlniion was to jrtvc I
I* aald to be vaated
eme aoverelgn power.
The plenum domlQlum waa In the Ring ot Spain
.. the republic of Prance previous to toe Treaty
of Cession, and after that treaty became vested In
Che United States, and remained In them until
transferred by condnnatlon to the original gran-
tees and their lesal repreaentatlvea.
Tbe Rpantah, French and civil law authorltlea
were cited and referred to. to abow that such Is
* ' ' ' ' tton : and amongst Chose au-
fwere particularly read and
Aboaadu Americano, tit. •!.
lib, S, vol. 1. p. ES : n Partlda, I..BW, D : 1 Partldn,
LawB 18 and IS; RIementt of tbe Romaa Hvlf
tsia
S. p. . -
I a« authorltlPB, witbout ■ Blaglc (iccptloa.
qalrlDi the till] and aUafute oirnertblp bj holdlni
poHrnloD durini tbe wbol* time which tat law
When pmcrlptlTC Hlles aecrae, do other title la
required: □□ complete title under the King Of
Sjiain ; no conflrmatlon or patent under the Unlt-
., -aulil follow, therttora, that prescrlptlc
mlgbt artnt Ibc object oC tbe UTerelcn : It mlgl
take tbe lend wllhout hie conaent from lb* Br
to a (trancer
original 1 J Ir
Dlibt be obnoxious to the aorerelgn por
Preicrlptlon tbue mleh- "■-— "- —
.. from lb*
jcfit. and give II
not ODi; did not
■ — ■-- pDialbir
..... , s tbe effect of de-
leitlni speclfle lawa aad reiulitloni : for In
that regulation which ptoTlded tbat odIt oni
and that not exceeding a certain qi — '"-
be Dade to a new eetller. 8ee Garot
tlt7, might
reived h
late an;
It for I
/uft?»n«."lD
f'oSantl??"?
If land wliicb
»uthorlied poeieeelon by _.
bad been atao granted to anotber peraon. like hlm-
adf. a "new lettler." and thla, too, before tbe con-
dition* on which the original grant bad been made
were performed.
Tble aurelr coold not be the law of Loulalnna,
and partlcularlj of Upper Louisiana, In which It
any t
objec
1 control wblcta is Inconalstent wltb preacrlptlon,
aa ha* been *1
the lanS, until -, _
Ing to [be Sac. and therefore excepted irom pre-
■crlptlon bf that rule, common to the Spanish,
THll'l'noD •poteil. Bee White's ColtectloQ, eO;
CuBtom of SralD. lit. 0. de la Prescription ; Lib. '^
at. t. Inst, de niueaplone.
Tbe case of Sambry el ui. t. Oontalas. S Uar-
tln'a Sep. SIO, was referred to u contalplng Im-
portant doctrine* on this point.
■Bd wUe, wet* all ehaaied aftor tbe lUb Hkirk.
18(M. and borrowed from or anlmllated t' tt>
AngIo.Anier1can law*, formi and tribunala. I*
t1*1I presci'lptloii upon a belpl«* wife under •ach
a *l*te of things, would be to punish her, aad de-
nrlte her of ber property, tor omitting to do wtal
the law rendered It Impusalble tor ber to do.
AgilD. a* baa been before urged, bow can ■«■
of for.
»n^ lio7,V
ilalm, I
penalty of one IhoiuaDd dat-
lu uEinx amen oft by the afflc«n of tbe
Btatea. from enteKng OD those lands sntll
the original title thereto, as derived from the
Freuch or Spanish coTernment, bad been prvrtevly
..J ._j — ilTrmed by the United Sfalca.ud
if wblcb BOW SI""
icDlied and
up thl* defense, or title of preecrlptlon aiDliul ber.
The counael for the plaintiff. In aupport of Ibl*
position, that M*r1e Louise iris qod Talea* atrrc.
at least alnce tbe dale of tbe Act of Codktri of
ISOl. which prohibit* entry oo llDd* not conCrSMd.
aboTc cited, ai
from Ibe lOib
Tbe couniel
deavored to *l
action was not
agalnat tbe pei
title, because
ceedo) to dem
failed to eaUl
t of Btatnrorr
and lfl^<wl.
a In
v-eoty.
Chat
It It should be replied to the sboTe able
la recognised by tbe law* of
rreatlng a right again*!
Spain. J
to public
preacrlptlre
e 1* totally differ
acrlptlon In question, and negative* the
those lands bplng pteacrlpiihle grnerallr, oi
prlTate IndlTiduala. Bee Wblte'9 Collectl
nance of I'M, 4tb a
Idea of
Collection, Ordl-
The yDiy conllrmatlon ^ven In evidence b
defeodaat in this case, purporting to be ms
Chateau, a* assignee Of St. Cyr. assignee c
orlElQSl grantees, la inconals" — -'■■-
erved ,
the true title under Ibe grantees; and. aeeond. if
the United State* gave any right by tbe cooarma-
tloa. that rlgbt must have been derived from tha
govemmeDla under wblcb tbe original grants ema-
nated, and there fore eicluding prescriptive, ad-
verse, Independent right, altogether.
Tbe plaintiff** eoun*°1 then proceeded to arms
that prescrlptioQ (tunpaalng. for argument sake.
the land to be preacrlpilble), could not have run
against Marie t.oulae cbancelUer, because she was
a married woman.
It was contended that the rnie Of the ClTlI law,
contra non valentem agere odd currlt praicrtptlo.
»s also that of tbe Spanish law :** it r -' -^^--
ot tbe common law and statute law, .
Spanish law ceased to govern In Upper Louisiana
II was contended that without iolni (arthar
back, it wax manifest tbat from the lotb March,
1801, tbe date ot the taking poaBessioa of Upper
Louisiana at St. Louis by Ibe United BUtes, no
mean a existed by which, as a married woman,
Hndams Marie Louise, tbe widow ot Lools Cban-
Miller. Eould aJon* act In Ibis mallar. The form*
ot procstdlnn, tbe trflniiMla, tiM practictl rala*
ilo^* for Ite pvrpoMi »t UUiiUea bvtwMa Uitasd
t praicrtptli
itabliab a title by preacrlpiloo to the
Btlon. either by a pasHnslon of ten. er
thirty years, held by himself or any
Tbe Spaniah law of preserlplloa, upon which Ibe
defendsnt relies, la tbe elEhieentb and tbe Bfne-
teentb law of tbe ilrat Partlda.
Tbe text of tbose two Isws. _. ..
tbe orlEinal Spanish, Is as fallows :
Lsn- 1S, -if one pcrsin receive of anotti>r an
Immovable thing la good faith, either by pnrcbaie.
or exchange, or donation, or legacy, or by any other
Just title, led keep poHieaslon of It during tbe yean
while the owner wa* In the country, or twenli
years while be waa out of It. *uch person wDI
acquire Ibe thing by prescription. notwIthstandtBg
he received from one wbo waa not the traeowner.
What we aay In this law applies when he wb>
1 and he who recelvea the thing -act I'TT*
faith, believing they had a rlubt to do lo,
latter relalns peaceable po^se^slon of It **
Is not demanded of bira during the whole
" "".ry to acquire It by prescrlpilon."
It^ a men who alienated >in Immovable
'>elleTe thil b*
'.%n
Uw 19. 1
Ibing, knew, or had good reason
had not a right to do so. Ibea tne person vn« re-
ceived It cannot acquire bv prfscrlptlon In lr«
than thirty years; unleae tlie owner knew of He
alienation, and did not demand It wltbln ten yeti*
from tbe dsy he knew It. If be were In tbe country.
The Spaniah inrlsts aniversally hold, and amosg^
them Febrero. to whom alone Rpeclflc relerenee b
now made, thai In order to acquire the property li
land by prescription, under the Spanish law. ^nl
Dlled, without which preacrlptlon csooot give dUe.
Febrero, In bla Llbrerls de los Escrlbanos Ipait
], cb. T, sec. Z. vol. 2. p. 4031. sums Dp tbo>c CM-
dltlpn* or Ingredients of prescription in tbe W
; lAlin
t tibl talll
InlBh'
"•■te
following requisites,
) galnqoe^
IS quoque JUibK
translated fros tM
1. "That the thing be aaaceptlblc ot alleeatb*
and prescription, beesuifc In nnailenable tblag *"
thing* *tolen, taken by force, and Imp
tbe ownersblp by prescription la not mi
S. 'frbat the possessor be capable.
8. "That he have a formal title (Jiiat
4. *rrhat he ha* po*Bea«cd in good ftltb.
blagali
J. aod Mb
me which tha law are
— .'Bblas and Imoovslw
respectively, wttbout Interruption : to wblcb llH
must be added that dnrlnf wblcb tb« tblu •■
bald by tbosa from whom a* bad IL"
nat tb* lint iBiriidlaat !• wuUng; umiIj. •*
MS ■plJ«, n
Tfary wlJI
bMD BlnadT contended tat tj th*
( plaintiff.
— '. admltttDi for the Mkt of tbc
r good riJCb,
Mpllblc.
- eontlautd p
1( Is ■dmiiicd Ihit lo tan > proeHpMoti t
tnit from * aos.iesilan of Iblrl; yt*n, It If
IMCHnary to show a "formal titlc.'' iCttr u
n poiBiHlaD, rbe Ian prnumM tbat tucb ■ lit... ._
orfelnallv filsltd. and. conwquenIlT, Ibst food
faltb Pitted. But It la eoattaHea that whPD the
^ the orlrl^
Oder wblob hi I poi-
11 ottonm manlfegl. trom tlie
, Ihal bF could Dol baTt enteral.
prrHumptloD which would hsTC
t Roman civil law,
, amongst the
rrom the beglaoluc reilita. Is not a title (dod eat
rittiliiii nor cau li Impart Bood faith to the ponea-
■or: wbleb li so true, tbat allhourb In a prncrlp-
tlon of loDR time (lonae temporlal It la Bnfllclent
mpretT to allcgp a tllinui and good Tilth : nor U
onvbodr In such ca-^f hoiind to prare tbem : jet It
■ lltnluB b* prodi'ced which appear* nniuat. It
aboil not aid. nay. It aball esiigf bad fillh."
AIbo. to the Corpi et Compilation de toui lea
Com mm ta tuna Anctens nK Uodernea aur la Con-
tume do Paria, par de Ffrrlere, Title "Preacripflon."
vol. 2. p. 20e. 300. noi, 322.
The p^alntlfTa couqbcI conli'odpd tbat tbpae doc-
trlnn were apptlcaMe to the iiifxpnt caie In tbK
that bT the detendant'a dwd ahoirlng, tbe tltl?
under whicb St. Cyr origin a 1 1; eotfred. iraa ■
tllutiia Tltloeua. aiich a title aa rendered It Impoaal-
TTI'l ble 'In tbe eve of the law, tbr- "■ '~—
conld bare tonalden-d hli
owner ot tbe land In qnp
Tbe evidence on tbe tr
■nd eapeclallT read and i
tbat St. Cyr enteipd, orl^
subordinate to Madame ti
Ownenblp acd tllle. Th
tltr ehowi that SI. Cyr ,.
H*dame Chanci-IIIer, given through ber
hnabaad Beanchamp. The crldence tor tbe de-
" " ■"- -■-— "--* "1. cyr entered b/ per-
"iZ
Bda, the triie
a demon strata
mission ot
fendBi
of the 1
ndlr.
. .. _.. ..^. bbtered bj permlBalon of
Beauchamp, or of the sjndk ot St. Lonlt : he man-
Ifeatlj entered under the true owner, Uadamc
Uarlr Uulse, tbe widow of Ixiuli Chaoeelller.
The munael produced and read to tbe court a
ontlllM] eopr from the record at St. Loula. In
wblch the duties and povera of the iTPdle are de-
Oncd sad spec^ltlc: and from which 11 Is manlteat
tbat the undlo'a power, wltb reference to thoae
lots, only eilended to tbe keeping np of the fence
tn front thereof, and tbat be bad so authorltT
irhalioeTer to glie or to permit to be taken, the
property of Madame Cbaocelller, or of any olbei
II la' laid d<
a length o
t preacrtbe ; that
neasiun nil Eiie dim a preacrlptlre
-„ ...' person nnder whom be bss en-
tered. Set milte's Collection. SS : De Terhec'a
mrtom of l>arls. to!, 2, p. BS2 ; L. 1 and 3, Cod. de
Prescript, SO ant. <0 annoram ; Klementa of the Bo-
maa C1*1! Law, by Helneclna, *ol. 3. book 3. tit. I.
■*On tbe division of things, and the acquiring tlie
praperty thereof and therein"
It was further contended that by no act of Si.
Cyr could he change tbe original nature of his
tltntua It was ihown by reference to tba autborl-
m tbat the rule, nemo poteat albl mutarn cansam
common to tbe Bpanlsb. French and
Hep I. E. cod. de acqnlr. poss.
s argued ttiab It *4 dwda purport-
ma. m
log to ba mada hr Ran* ncratreao and JoMpfc Imr
Baptlata) aamacba, raapectlvely. to 8t, Cit, datad
23d Oetotier, 1768. of the lots In qiieallon,^ nlled
on ai changing tbe preceding tIcIous title ol Bt
Crr Into a Jiialui titulua, auch a poaltlon la untcna-
hie. according to tba law Id force at the data ot
tboae deeds.
The mere taking ot ■ deed from perioDS out ot
possession, and who bad themselves conveyed away
the Identical land, and who bad Buffered^ It to be
possessed adverselv by Lonli Cbaacelller. and tboM
claiming under him, tbe one lot (or upwards of
twenty yeara. tb* other for eleven yeara. pt«tloiM
an, or vest bim with •
on Id hold anlmo dom-
bere diatlnctly aubmltted to tbe court tkM
lOBBcsalan. ai under' tood In Anglo-Amar-
Dd poaseselon auch as, according to tbe
"--'-'- ■- tbe principle case, could creat*
> toUlly dltrereot in their ebai^
That bona Bdea, ■ eonsdcDtlous belief of owner-
ship Is nece^'Bry to the possession In the prlndpal
caw : wbereaa. adyersa possession, under tba Alt'
Elo-Amerlcanlaw arlaea from a dlaselsln, altbcr
expressed or Implied. So far, indeed, do tbe Ab-
glo-Amerlcan authorities go on tbia bead, that It li
laid de — "- ■■-■ ■- "- * ■~- ' '
aw, la appllci
n by tl-. - .
rlba Btadstreet v. Hunt. _
crulDG under nets of limitations are recognised In
terms as originating Id wrong, altbougb really
among tbe best prDtectloni of right and If an/ who
can commit a disseisin may claim under an aOTsrat
poHBesalon, It Is not eaay to preclude anyona. An
iDfaut. a feme covert, ■ Joint tenaal. tenant In
common, a guardian, and even one getting pones-
slon by fraud, may be a disseisor,'^ and cltea, 1
Roll-a Abr. GSS. 662: Br.. Tit. Dlsstlaor, Tj Balk,
Joint Tenant and Tenant In Common ; Coke, 1
lost. 1D3,
This doctrine la precisely tbe raveraa of tbe Span-
lab law and Jurlaprudence, and It therefore followa
that altbough by the Anglo-American law, at. Cyr
might, by ■ declared and unequivocal adverse po«-
. — .t . ._ y,jr^ i^r the re«l owner, no
laaeaalon begun, whether by tlo-
be eon Id not by any length of
posnensi on,' which was Bbown to have begun by vi»-
[ence. or fraud, or as tenant, or precarious poasea-
SOT, acqnlre prescriptive title by the French, Span-
ish, or Roman Civil Law.
The Spaolah law. Id Ita abhorrence of fraud and
violence, goea even beyond tbe Roman or the
S'rench law. See Helncdaa, vol. S. title 1, sec. 442,
p. 163 ; see Bpaalih Law as above. In the Partldas.
etc.
ITsvIni tbua dlapoicd of tbe queatlon of tltnlns,
wllb reference lo St. eye's possession, whether of
leD. twenty, or thirty yeara: the counsel for ths
tlaintllT proceeded *to demonstrate that tbe ['TTS
igredlenl of "good faltb" was manifestly want-
ing to St. Cyr's possession.
This want of good faltb. It was eanleoded, ap-
peared. 1st. From the nature of the original tltnlnL
~ ^Ich has been already dlseuassd, and which Itself
Bused bad fBlIb."
2. FYom tbc apecinc proof In tbe cause that St.
Cyr had notice of the fact tbat tbe lots In qneatlon
had been sold aa tbe lawful property of tbe de-
ceased Intestate. Lonla Chsncelller; and had been
dliidlcBted by the hlgheal tribunal Id Loulnlana.
1 Marie ly>ulse, the widow of Louis Chancelller.
S. From the notice whieb tbe law preaumed that
" ns. Inhabitants ot the town and dlatrlet of
I, Bt that time, must have bad ot the ad-
n to Msrie Louise Chancelller.
the apecinc notice, the counsel contended
a proved by tbe tact In evidence that St.
rbssed a slave named Fidel, at the sale of
le estate of Loula Cbaocelller, and signed In the
largln of tbe sale as parchasar. witb AognstS
rhoteau (the conflrmeet as hi" securltv for the
■Ice. 2,100 llvres. By refercDce to tbe aale. It will
1 seen that the Blave Fidel was the Brst article
lid, and that the seventh was the IoIb In question.
Aa to the implied notice, the counsel rely on thf
notice to all tba w
Rere the counsel referred for the effect of an ad-
SdlcBtlon. such aa that nuda to Uadaroa Mart* -
inlae ChaDcelller, to the elementa of tba Romui
civil law. before dlad. of HsIaMlDa. and the b»
1111
thorltta* tbeniD ra1t«d m ini. t, book *, titit 1,
Mt* 1, *o nee. 1139).
For wbai ilic HubdIiIi. FrcDCb. iDd cItII Ihw ud-
dtrstsnii to coDstflulv mil* flilri, aurb main H'\ta,
or bad fuJtb, as prevents prfscrlptlOD. tbc counxcl
recurred Ibe court lo Rodrfqiipza Imtllutfa (irina-
Uted bj JabU'<toD>, title ''Piescrlpllan :" Wblte'i
CoIlMtlao, p. 08; Abofado Americabo. tit. S, >al. 1.
p. SO; S rtrtlda. Lava. D, 10 11, 12 :blg., lib. 3 ; de
■Ui Vel. Amllt. Pom.; 1 Domat tlL T, «ec. 10, p.
«al ; Cuatomr at Paris, br Terrfea, *ol. 3, p. 813,
S32. All tbeaa aulboi-Jtlos uUbllab that sood faith
consist! In tbia, I bat [be poswauir bellevaa that Cba
p«raoii Irom vboni h> recelvad the thins wu tba
owner ol It. or bad a rigbt to alien and tnaiCer IL
ID the Pandecto, It li laid dava tbat ■ood faltb.
Id matters of preBcrlptlon. la leaoranda rel altana
8m Dig., lib. S : ad leg. Tab. de Plaglar.
The aame deflaltlon ol good and of bad faltk, IB
matlera o( prescription, will be (ouod In tba Cedt
When tbe above deflnltlaiia of mala fide*, and
boDa Ddea, are applied to tbe Fscta In eTldenea, It
becomes manifest tbat tbe eclentla i' " '"
Tbe eounael tben adTerted to Ibe qneittoD of
*'pOMrB9loD" In Bt, Cjr, and contended :
lat. Tbat tbe posuailon of St. Cjt. wai the poa-
■caslon of Madame Mnilc Louise ChancelTler.
2d. Tbat tbe possession at St. C7r was anrertain
■a to tbe data of lla laceptton, aod too abort in
duration.
Aa to the Bnt proposition, it bai been already
«at«bllsbed In tbe argument on tbe original ebar-
actar of St. Crr'a tltutua. If It be true tbat 8t.
Ctt, wbetber bj permission of Beaucbamp.
tbe ajndJc ot St, ' — '- *-"* '- — ' — -•■—• —
._ 1, held In
Ittia of Usdame Maris Chancelllsr. It toltawa tbat
bis possession must have been ber possesslOD.
For tba nature ot a possession required by tbe
Smnlsb sud civil law to create title by prescilp-
tfon, tbe cauDMl referred tbe court, amongst other
autborltlea, to 1 While's Collection, 68 ; Radrlgiiei'a
Institutes (by Johnston), title Piescrlptloc ; 1 Stra-
han's llomat,. tit. T, p *6S: Abogado Americano,
tit 2, lib. 2. Tol. 2. Accordlut to all those authorl.
-* ™ Th. ~,«.>..inn „.,.•> h. •^n^ mcrelj a nal-
that tt ahiJI Mt alft mv. tlttt it aball cmh «■«
falib." ^
I lie Spanlah. Fmch, and Roman cItU tea •■»■
«uF In tblh tbat a title bad In liHlf. eaonat k*
aided by tbe belief ot tbe part _ . _ ..
Counsef particularly referred ti
(at In 0 pin lone.
The "trutb," therefore, In this case, that flt. Crr •
title, whether under the syndic of BL Lools, or
•ftarwarda, ncder tbost alleged deeds of Klereereaa
and Qamacbe, was as InaulBclent. unjust, and Ib-
Tilid title to (ODUd preacrlptlon, mast ooantcrrall
tita opinion ot Bt. Cjr. tbat bis title was ralld. If
It were poaalble to Imagine tbat be oonld eonsdcsi-
tloualj entertain eueb an opinion.
Tbe counsel for plalntlfl dWelt on tbU polnr «ltk
Boma earnest neas. as of Importance to mer-l what
appeared likely to be uned as a aerloDs nrsament by
tbe defendants eounael.
Tbe cauDsel, as to the second (round of okjec-
tlon to St. Cyr a poiaesslon, namely, that it was un-
certain es to Its ueglnDlnR, and too short In Its d»>
radon, referred to tbe eTidencc spread on tbe tra»-
lanlfe^l that no ■
._ ___ ..s commencement.
Tbat tbe earliest possible date was
. all the witnesses concurred In prov-
ing that tbe possFBsIon ceaaed totally, wbcn lh«
general eastern fence, common to all tbe fortr ar-
pent field lota, tell down aomctlme In ITBT. or IT98.
Tbua, Bupposing, for tbe sake of argument, tbat
Tbua, Buppbsing, for tt
St. Cyr' 9 original entry w
It appears nom tbe erk
•rldencc that — —
under II la not shown to bBre been surb aa ttM taw
of preicrlptlon reiiulres.
The counsel tor tbe plalntlS contended that tba
position taken In tbe defeodapt's brief tbat
rupted" Tbe pi
ural or corporal
a clTll p
sslan. which bonesty
be proved." Bucb a poasei
medo anlmo. Xobodj who
hlmsett, can enable anotbni >» wi,» uuvocn^iuu.
T73*] •unless the conveyance be as attoruey In
tact, or sgeot of him who is pwietai-d."
Tbe counsel tor plaintiff, applying those doctrloet
to the facta, contended tbat no sumclent poiicssliin
was shown on the part ot St. Cyr : and, In this part
of tbe argument, fook the posttton that tbe deeds
«f 28d October, ITOa. If they Id tact bad been madp
br the peraoni In whose Dames they were alleged
by the defendant to be. were not only iiisa(rn:leui
to conray a posseaslon. but were acIuBlly cclmtnsl
In the eye of tbe taw. and tbat the makers of th'm
might nave been prosecuted and punished for the
otfense. called. In Spanish criminal lurlaprudence,
aXellonato.
For tbe dennttlon of estellonato. tbe counsel re-
ferred to the Abogado Americano (lib. Z tit. XIX).
Bsttllonato, Is tbe fraud of concealing, In a cod-
traet, tbe tact ot an anterior contract, touching
the same property.
For tbe puDlsbmeot ot that offenae the counsel
also referred to tbe Abogado Americano (tit. 43).
~The punishment Ot bim who sells a thing to a
pOTon, after bavlnc sold tbe aame thing to another,
(a to return the purchase money to the last pur-
chaser, and alwj to be banished for a certain timei
according to the discretion of tbe Judge."
These two SofSs were, therefore. Dot only Insiif-
flelent to transfer any po"seBalon. IhiI were criminal
otally unwarranted by the
sw. and by the etidence.
proof whatei
r applicable t« t
~l''as in 1T80, or 1793.
er that Madame CltaB>
property at any tlne^
removal to StTrharlea
Pierre Choice u. one tt
of these tots
from St. Lonla, and residing a ... . .
ans. on the weKlero frontier ol the prOTlnc*. The
counsel for plalntKf contended tbat tbe SpaoKb
government alone could have availed Itself of the
abandonmeni. It It bad taken place; because, br
tba abandonment, tbe land would have a^ln b^
come part and parcel of tbe royal domain. Bnt It
Is In evidence tbat tbe government ot Boa la
•never raised thia pretention: tierer treated ["TTJ
tbs laud aa re-anneied, or abandoned ; ncTer owd*
even ho Inchoate grant of snr part of II. or dlit
lytbing to Jtisllfv tbe iDCerence that ttie Spaolab
for preaCTiptloD.
pom In this -
BSS that St. Cyr
™e'_. .. . ^
-'ated. that title. __.„
rlvatire, remained In all Ita force and pleaivni*
^eIted In Uarle Louise Chancsliler on tbr liKb
Mar<.-h. 1804, the day on whicb tbe Dnited BtiICK
under tbe Treatv of the lOtb April, 1B03. took pa»
■esHioa of tbe Province of Tpper toulalana. It Is
. .. _ ------ 1700. or 17QS. 81. Cyr ewM
not have omupled the land as abandoned by Varla
I«ul<e, or by anybody e1>c It la a maila In the
■ 1 . __. „ dvU law. that vaesBt
lillv nccupled. pee Ig-
SpsnlA. French, i
alienn. "It Is ridlcu
s occupied tbe praperty ei
:be proper
crlptlve title to tbe lands In q
1st. Choieao -- - -
ler with the li
aos ID queBiiDO, OR:ma^ —
connect himnelt In anv mse-
er by possession or by title.
-- .r — -hoteau. Is tbesal* to Uiaea
(be ntb July, inoi, ot two arpents by forty of laaA
by the I.ieutenaal-Oovarnor of Upper Lsnlalaaa.
When thin sale Is eumlned. It will ba tonnd tkat
tbe arpents >u,ld on tbe Btb July. ISOl. to CkaKaa.
are not Identical In deeerlptlon witb tbe arpsatt ti
qiiesUon. The arpeeta sold to Choteea are da-
Bcrlbed aa bounded on tba one dde by th(> wMsw ti
th* othar by Mr. Roitei. Th«
Id on
a Baptlite faeqite
jd* to show an I'
thr af-cr1ptlno. It ti
BbvMiet, tad „ .,
lati Id qoettlon In tbti ouu ire bonnilnl
oni ildr bT Kr. Btlou, or Loul ~'
ttw otbrr (tbe loutb) tij Jobo
No ■tlempt, « *— "- ■•
tllT by fTldpr
llai-«d that no
fore, contend loai imi oojeciio
Choleau'i claim of pre-crlptli
baaed on bis om ponseBxIoii. oi- ■■ cuuur>:ic
Bt. Cjr. Tbey contend that such nn ob
VOald be (atal under tbe Anglo- America a
■D action of eJtctmcDt : and. a fortlirl. nnc
Bpanlsb law. wblcb reqiitrei that the titii
- tverj olher^lOKiert lent and coiyllllnn.
elthrr
« proved, upon wblcb
icrlptloa aloa
Tbe iDRredlpnt of °Rood ^altb" le mnnlfe^tlT aXo
wantlDS to Chateau : tlrat. because bin tltnliia In
had. and Irir^I ihs Solurra-'o hai III causes bid
fatth SwoDdlT. because the iclenlla rel allenm,
~the knoirledi^ that 11 was tbe property of an-
sther." la broufht home to rhot<<au. ai II l« to St.
rldcnce that he ilicned on tbe marrla
8t, C»r, aa 3t. Cvr'a eeeurltj. ftla
, ., sppcfflcallT pioied, if thKBibin
t-ecn arsued. be concliiitlTe of notice to Bt. Cyt of
< the tale «
Uarle Loulae C
beTd
) tbe Inteitate'L .~.
Ins iibowii the »Mit of formal title and of
altb Id Cbotean. platntirs counsel then con -
that DO po^ieislan (the next and ptlaclpal
"'OBl was ahown to have been
e posaesslon of St. Crr. iiueh
. __ . crted n-llh that of rboteau.
t bis been ahsprved, tbe tltulua of Cbnteaii de-
rlbd other land tban that now In llttgitlon.
proof eilsti. All the wtti
platnlld or defendant, con
Erma bad poascBilon aftp
nOT or iTOS, until 18(
jeases, wbpther of the
r the fencCB tell down
18, when the defendant
eaatera end of aonie of
l" Chotei
, — naMer
ireacriptUe title In tbe defendi
It will be recollected that the .
ap bT defendant waa a prencHptli
Iwen^ yeara I
I Bt. Cyr. <
ir qnestlon of
tptloD let
'iBlmluK under
__ _ TBlT In the dpfendant of Iha
» In queallOD prior to tbe lat October, I81S.
It It baa been demontt rated that title hr pre-
scription la out of the ijucBtloD as respects St. ryr
and rboleau. It follawi aa a nece<i<arr consequence
TTd'l that the defendant •cannot connect himself
with either St. Crr or Choteati for tbe piirpoae* of
"prescription."
.. .. ^ded prewrtptlon of thirty t
lo October. 1818. falls tolnllT for the reat-
ilreodj shown ; If St, Cyr'i preicrlntlon of I
-Tta prior ■ - —■-
prio.
0 tbe 23d July, ISIO, falls totally, ss
continued tor ten Tfnm conaeciitlyely, prior to the
1st day of October. 3818.
Here, then, la a prescription set ap In the defend-
ant himself. In wblcb tbe only Inf[n>dtent not re-
quired by tbe Spanish law to be ipeclllcallT proved
by the pcr«on who prescribes. Is bona fides, buena
M — ~Oood faltb" Is preaumed to eilst antll tbe
rODtrary be sbonn : hut the other tnnredlents of res
uta. boDQs titulaa and "poiaesslon" muat be ape-
meal ly proTed.
Bat here It Is contenAfd tbat tbe defendant has
tailed In sbowlnK any ode of these Insredlents,
If he haa a tllalua. It Is manifest that It proceeds
from a source Itself tainted — Incapable of fnrnlah-
Ini to the defendant ■ Jugta eauaa tMasldendl. The
4eed Irom Aucuate Choteau and wife, bearing date
lltb JiDaarj, ISOB, Is tlia aoly dead In STldence oa
t Ih ed.
th« part «r tka defsBdnat wblcb eu
as a tltnlna, npon wblcb Us awn eiciuam pirhfnp-
tlve title can rvst, or to which can ba referred hla
own allejied tea eonsecDtlre years' posaeaalon prior
to the 1st Octobw, 1818,
To tbii deed as a Utnlaa, tha plalntHTB eonaad
•>blects. Urst :
That Ita yery termi demonatrat* tbat ChotMO,
to. and recites the sale to Cbotean of twc arpenta
by forty, at the public sal* of the property ot 81.
Cyr, and deaerlbes tbe arpenta sold at that sale at
thoie purportlne 10 bi conveyed by Chotean t*
erty, that there was no Identity between tbose a
■■ ts; rum. a< ha^ h.'en -hn^n, ibe arpenta were
differently boiiaded, and posalblr far removed from
each other. The defendant miRht have found tbat
the arpenta bounded by Joseph llortaa on tbe on*
side, were far north of Ibe two arpenta apMldeally
attempted tn )ie conveyed In the dead from Chaa-
ccltler and wife to the defendant.
Tbe counsel for plaintiff here, amoni othar an-
224, 22S, la which. In ■ caaa ot prascrlptlop, tbs
coort Lays down the fotlowlDi doctrine ;
"Tbe correct doctrine la Ibla. that If the ttti*
under which the acquisition la mads be nail In It-
self, from tbe defect of form, or dlaclosea facta
which show that the pertoc from whom It la ac-
quired bad no title. It cannot be the basis Ot thla
piestrlpilon (a preacrlpttoo of ten years). ii«,«ii««
the party acquiring must he presumed to k
law. and consi^quently. wants -■-- -
Here It la manifest that tbe deed from Cbotean
to Ijueaa "dlaclosea a fact" which would hay*
shown to Lucas "thst ths peraon from whom h«
■cnitlrcd. bad no title."
has been ibown. (
a domlnll.
AnlD, as has been ibown. Cbotean had do «■■-
seasloD — never bad any poaaeailon of tbe Iota
m question : his deed. then, was not juatined or
sustained by tbat iodlclum of prima facia prop-
erly which possession mlEbt be supposed to fur-
nlsb. The Jefendant bsd^ abso lately nothing but
tbe deed from Choteau. and bis recitals, upoa
foMcd his belief tbat Cboteaa waa owner.
■ had a
dtals In deed
s, lib. :
Uial th
._ -Jytbla.,
I a case which peculiarly calls for
of the doctrine above cited from
H-rance i
be added
binding I
^o Helnec
ormal title deed alone"
Lueaa la, that It was made by C
th or In olher words, that when -
made It, be keen tbat be had no title to tbe land,
and that II belonRed lo Madame Marie Loulae, tbt
widow of Ix>uls Cbancelller.
That he knew he had no title to ths land, follows
Id tbe nrst place from this, that hla title ander St.
Cyr, such as It was, did not even describe the land.
•TliHt li» knew lh.it the land belonged to [•TT«
Hadame Marie Louise Cbancelller, appean from
B facU In evidence
eel Her
a witness to ths public si
-'- --■■ —'scribed bis 1
rceo^ ot
■Ity for 8L Cjc,
2. He waa an Inhabitant of 81. Lonis (a place
then with a DopulatioD of about two hundred pel^
•ons). and mast be presumed to have had notice ot
tbs public sale ot Cbancelller'a property-~« sole
manifestly conducted with all possible publicity
and tormallty, and according to the law then ^
8L f^ula.
-•- hound by tbe "adli
Isr an adjudlcati
1 having tbe elTec
n" to Mad-
Lonlslsna I
the author-
only tba
Having demonstrated tbe nullity ot Ohotsau's
deed, as respects bis own bad faith, the connaei t«i
tbe plaintiff then objected to this dead on the
Etiriid Ihat it was a breach of - ■ ■ •■ "
ot official corruption on tbe ,.
to have taken It [ron Cboteaa,
. It I* IB ciidnn la tW eaiM tbat tbt drtradaot,
>«ha baptlaU C. UcM, on lb* Sd DecrmtMr, 1805.
took (be Willi u niiDiiiliulaner UDder llu Act (Mb
t (or ■KtrtaloliiK and adlui'
' - vllbfa Ibe Krrit
hIpMdIj tvoar (or aarm) tbtt I will ImDirtlally
■nrclw and dltcbarce tb* dutlM ImpoHd oa me
mt an Acl ot Coaarau. aatlllMl 'Ad Act tor aacer-
talnloi and adJuiQiiB tba tlllei and clalmi to land
Eltbln tba uirliorr of Otleaui and tba dlitrlct ol
)ulalana,' lo Ibt bait ot mr akill and ludimtDl."
It la Id aTldenea In tba eau*L tbat under tbt
aboT* act, Aavuata Cbotcaa fliaij a claim ts tba
two arpenta In aucBtlan ; and atjtdl blmaalf tb«
Milinec o( llracliitb SL Cjr, anifnaa ot tba orLr
lOBl irantM*. aainacbo and KlarMraau.
Tba dctcDdant blmnlt allagn tbat tba clali ,
Chotcau waa Bled Id tba jaar 18M; and admlla
tbat tba claim waa ■till pfndlnii bctort th« board
of wblcb he waa tbiia a iworn membar on tba lltb
JaouatT. ISOll, tha data ot Cbotnua daad to blot,
tba defendant ot tba lota In quaitlon.
It It avldenoa (oEtared br deteDdanI) tbat B0^
MtbaUndlQE tbla dead, Cbotcau itlil eonilnucd, oo-
ImiiIUt, bcfort tba board aa tba claimant, and aa
bcsMclall; Inloroatad In tba land elalnwd ; aod
that, on tbc Ulit MarLb, 1809, tba board ot eommli
MDoara took op the claim ot Cbotoau to caA lot
napectlTelj, and tbat certain nutten ware aub-
ultted to, and received b; the board aa erldence
Is aupport if Cbatcan'a claim ondcr Iba orlalnal
cnnteea. All tbla appaara b/ the eitract trom
tba mlnntM of tba comoilaalonora aprtad on tba
tranacrlpt.
It furtber appoara 1b aTldenea ottered b* defend-
ant blmaelf, tbat on tbe 3Sd d«7 of Julj. 1810, tbe
board of eommlaalonera eonflrmed to Aaguata Cbo-
teau tboac two fortr «rpaDt lota, and. In tUa conflr-
nutton, deelgDatea Cbotean oa anlinee ot St. Cjr.
aaalnse of Qanacba and Kleraeraaa reapac-
It la furtber abown to tba court, br rcterenee to
tbe 2d vol. pate TIS, of State Papart (printed bv
Oalea * Beaton, by order of Con(raaa), tbat certlll-
CatM bt eonarmatlon were laiuM br tbe board ot
Mmmlaalanera In Jnna, 1811. to Oiotean, aa a»
lUnee of tbe orlslnal crantcea.
It appear! tbat tbe nuuntet at tbe board of eom-
mlaalonera of tbe 31tl Uarcb. ISOfi. and tbe cnnHr.
matlona bearint date^ '^^k'^vZ?'?! '^f"*!
a on tba otber band, tbat the c«rtin-
tbree commlaalanera.
• irf tbe defendant doaa
•Icoad by on I J
•nd tbat tba '
pMr tberato
It appeal- ._
tatea of conflrinatlan were leaned and
trhole board ot commlaalabera.
Tbe certlAcate ot tbe clerk of tb . ___
Joined to tba report mada of lb*M cooflrmatlona to
Uia fortrnment ot tbe United Blatr- -■■"—' —
tba ikftrence, tbat tbose certiacataa
— all tbt- ■--■ --' —
t^ all
bj t
a all.
bave not been produced br tbe defendant : wblcb
■nppreailon. or wllbboldtni of tbem on bla part, ta
totHdentlT (lanlflcant
Upon toe above atale of facta. It waa coatended
tbat, In taktnt the deed from Cbotean tbe defend-
ant could acquire no rlalil or ettale whatever.
Tbat Ibe deed waa a Dnllltv, in tbe tja of tbe law,
and waa • crime under tbe jurlaprudenee which waa
In force In Louisiana at tne date ot that deed.
The MunatI for plaintiff. In anpport of thla ob-
TTTM jectlon to tha tltnlua of tbe detendanl. *n-
terrad tbe court to the lawa ot every civlllied na-
tJoa, from tbe earlleat antlqultj to the prearnt
time. Tbey cited more particularly the principle
recoCBlaed and acted noon by tha Bupreme Court
of tbe United Statea In tbe caa* of Slacnm t.
Blmma * Wlae, S Cranch, SS3.
The counsel for the plaintiff examined and com-
pared the caaa ot Blacum *. SImma A Wise wttb
tbe present caaa. and eonteaded tbat tbe principle
piaed IB that eaae waa, a fortiori, applicable
recoaniai
to inla.
__ie eonnsel for plaintiff alao dted tha followtnR
•ntborltlea from tbe BoKllab, Boaoiab, French, and
Boman civil law, to damoDatrate the nullity and
tba criminality, under tboae aeveral ayitama, of
tbla deed to tbe defendant: 1 Ooi Rep. 13* (Lord
Tburlow-a opinion In tbe CM* of Ball v. Uallatt) ;
Hanaal Dal Abocado, Uhro. S. tit 0, del Jud. (ot
Um ludsea) ; ^Myclopedla Hethodlque, tit. Jurla-
Brodance; ConenaaloD S, Partlda 1, p. JM, 191,
It farther eaotnde^ Oat
vol. I, part 1, p. U6. 197: CM* AmI «• ■«»
leoii. arc 8, tit. I : Us aute Partldaa. I Pu^b
Uw, 10, tit. 4 ; tba Lawa of tbe IS tables ast tha
Code, Pandacta, and Inilltutei ol Juatlotan : »td
particularly to Codex, lib. 3. til. B. Tha ctraM
Juris elvlira, ■cnarally referred to br eonnatf W
plBlntlll waa Bpantrnberi'a edltloa. r '
17^6, (In tbe library of Consreaa).
Tbe eounaal for pfala"- —• — —
tba dead from Chotei., ..
not only veld for Judicial fraud lu tbe d
but tbat Ue proceedlnia before tbe board bwm
the date ertbat deed to the laaulnt of tba cvtlB-
calea to Cbolcao In 1811, were, alao, «1I al tha^
void for tba aama reason.
Tba eounaal went at larca Into ttata part at Ika
caaa, and oenlendad thai wbelbcr tbe comml^a*-
— _ decide: and, ■
tbat In which they tbcmaeivea were lanmna.
Tba eounaal for plalnilff referred to Ibe letten
of tbe defendant blmaelt, addreaaed to tbe Seer*-
tary'of'thVTreMurvr'lir. ~<Jailatln.~Tn' tbe i
', and pnbliahed by order of Confroa amsant
the State Npera, bi vol. at State Fb-
nt defendant In tboae leltara, denonf
that aient ot the United Statea aa nntme to bla
tmat, and manlfeallj Inalnuales not only acalaat
tha aiant, but afalnit bla own eolleainie*. Ifava.
Batea and E*enrose, tbat Iboae tuncllonarles bad
auffered tbeir Interest to Interfere wltb tbefr 4n-
He specially advarta to a purcba^e n
. _. , j,„„, pendlna
-- ._ a purchaae upon a
t member at the bwrd of c
f Cbotean. a*-
admltied c
I tended that
— le proceed tnia.
there recited id have I:
Cbnteaii. snd facta alley>a aa proveo in anpporr
of hia title as aaslinee. which now, by tbt very evt-
dance furulahed lu thla cause by tbe drfmdaat
himself, are ibown not to have eilated. Amontral
the most prominent falsehoods spread un ihatc
minutes, wss the allecation tbat by a eerllflcd ex-
tract of a public aale made In tbe year IBOl. of tlie
properly of Hyacinth St. Cyr, It appeared tbat tti
claimant tteeame the purcnaier of those Iota r»
apecUvaly. It hat been demonatrated that no aocb
•Tir*i>t arai •h<i«q or could IM abowa.
il evidence which la alated h
been clven on the part tt
is alao abown by uie *vt-
by tbe defendna" ~-"
_ J, on Iht Slat March. 1S09, thai
about forty years ato (tbat la. In the year 1TS9)
these tracta were cu[tlvated by Jhe ortalnalpa*-
Apiln. the parol
the nominal c' '
.jnd for Itie followlnc yearn, u
teen yeara (tbat la to aay, until about the yaat
1T94). Whereat, It la dlatlactly proved la the
) L.0U1S I
lller. In Jai
wife's dee^ to Louis Cbancelller. in April. ITU.
ThLia we see, aa might have beeu expected, tbs
recordt ot thote eommlaslonern made siitaei iWat
to (be inlereata of that one of them wbo waa ntUy
tbe claimant ; and iroas violatlona of the raits e(
evidence, sod enormous suppresaiona of tmlb, aa(
augieillana of lataebood, in tbe endeavor ta
five a title to Cbotean, tor the beneflt ot tb* de-
lendant.
The eounaal (or pltlnttlf referred to tbe i^acti
ot tbe conHrmattona made by those coounlaatoaan
i published In Qaiat A Baaton'a Slat* Papers vaL
, before mentioned) *tOr tbe proof that t*W>
while tha detandant denoaneea bla eoHeacnaK la
himself was, to a freatar citent, (nllty.
The coonsel then pointed out to the coast t*»
Drmatlona made, not merely to the Tendon at tta
defendant, but to the defendant blUMelf, by wmt.
The counsel dwelt at larfe on thla part of tbe ok
aod endeavored to demonstrate tbe pecBlltrl|
~ '"irons nature ot ancb conduct on tbe part at
idarr acent. be be JodM or •ttoroeT, m4 at
tUr Incompatibility ot It wltb tb* mA ^M
tbe niter lucompatlbill^ otTt
Uw defendaat had taken.
• It
Tte «MUd obiiwia tk»l th*r mold proOuca to
(M court no axKctlr ■Inllu' cut to tlw praMDt.
Vt»t tlw r*eord« <a ADi*rte>a iDriaprodcnee, (or
.1. >._ _ .. .t._ — „ mtod "^
I ol tlili n
1 BB nicb cue 1
tor U* pmcrlptli .
October.
DO Sngllih iudn wu, to tlM
coQDul, cvar lutpectn) of lucb ■ cDum m eobouci
u tUB bccB hare proved aftluat thla dcfandant.
8or could tlief prodaca to Itali court sdt ■peclflc
IB« of tbe CoDsren of the Called BUlee, ■pplicable
to tbc act Id question. Tbia abMQce of ipeclflc
prOTldon was coDlroded to be a precnaot proof
Ibat tbe prlDclple wtalcb torbade lucb coaduct wae
Iht ablmatlaK principle of our Jarlapradeace. and
teqnired not tile aid of tba lealalator to Tlodlcato
OT eaforce II. Tbe counael contended tbat thin
principle lar at tbe foundation of all law, and of
•Tcrj (7 Item of Jurisprudence.
Hartac Uiui ibown tbe total failure of tb« de-
fendant to eitablUb a baali tor bl> preacrf '
wa> contended tbat bis poaeeaslou tor tbe
ten Tears immedlatel* previous to tbe 1st
1818. could not svefl him; becaaaa It wu doc n
"cItU posaesaiOQ," tbat la, an "booett posieealao"
wblcb slone could cieate ■ prescriptive title. It
was cODtebded tbat not ten or twenty, or thirty, or
onp hundred years, could (Its a prescriptive title
to tbe defendant, baaed upon so faul or fraudulent
• tItoluB.
As to tbe nature of tbe
aaaln r«(fri'ed tbe court to auci
tieularly to 1 Straban's Domat.
*Vf I'osBeulon and Prescript Ion.'
rbe cuunael for plalntllT taere again adverted to
the acta of Coojirtst o( 3eth March. ]80(, and 3d
March, 1S07. wtalcb specially prohibited entry upon
tbe lands not then actually occupied and cultiva-
ted. Thpir contended that tbe defendant, above all
men, abould have obeved those acts. The Brat sec-
tion of tbe Act of 180T specially provides that un-
til Ibe board of commleilonetB aball have passed
on tbe claim, no poasessloo shall be taken, no en-
trv. no Incloaure ■ball be made of Ibe land Inrhided
under severe jwnaltles, and liability
- T, page i
of tbe United Bta
referrfd to'ln the first section, and. above all m
bound to know. M obej, and to enforce that lu
was the tery Brst to violate It ; and that, too, fro
tbe tmi
t bis <
Lrnettlr n
Tbe <
fd tbL. _ ,
positive law and sacred
dntr. must be vicious, and totally Invalid for the
nnrpoRca of prescrlpClon. They contended that If
the posseaaloD of Ibe defendant was In Its Incrn-
tlOD, In INOK. tbu9 evidently bsd. It could not have
been ameliorated by the years that elapsed t>ct<vean
ISOS and the lat Oclober, 1818, the day msntloned
In tbe third Instnictlon.
The connxel here Invoked the application of
tllat rule reeognlied even by our Anglo- American
code. Quod lb Initio non valet, tracto temporla non
The coiitinel for the plalnlllt. after tbni dlacuia-
Ing the merits and validity of the platntlCs title to
tba lands In qneillon. and Ibe total failure of tbe
defendant to eitahllBb any title by prescription In
himself or anybody else to those lots, proceeded to
paai In review the Instructions given or refused by
The jQdge of the District Court, and to demonstrste
their error and Injusltce as respect! the rigbti to
the plaintiff.
The counael first eiamlned the Instruetlons askrd
for by (be defendant and gtven bv tbe court, with
"fnrthi-r Inatructlans :" and contended that —
1st, The Instructions ssked for were manifestly
erroneous In this, that tbey placed tbe title to pre-
scription, as set up by th« defendant, on the ImsIs
nf nn^sesslan alone, without any reference what.
0 any of tbe other conditions or Ingredli
r Insti
« this
•rrer, but rather added a new an.. .
jrsttce; because It ssaumei a paisesslau In St. Cyt
and In Cholean that bad no eilttence.
It la manifest from the evidence In the cause that
Bt.^ ^r's posseaalDn _wai t^bat of Uadame St. Cyr ;
1TD8: and that Cho^
r had Doaaeanlon a
|iireha
MQBd, and TnllA, to J^Mtr Lncaa^ poasasalon, and
live It tba eharmctar of a '*elvU ponaaslon." of an
"hoDeet poBMMlon," which alona can prodoee pra-
Terdlet of tba Inry ndght have bean tbe m
any of the Insfructloos. It fotlowa tbat. If ■
them be erroneous and were eicepted to by
tiff, the error Is fatal i and onght. In this ci
"-erse the Judgmr"*
Beddes those tl
anld continue In b
luatructloni asked by defand-
r.._ ... .^ court with further Instrnc-
exeeptad to by the plaintiff, there ap-
pears on the transcript olbar "further Inat ruc-
tions," given after tbe bill of exceptions was
signed and sealed by tbe Jodge of the Circuit
Court: nod wblcti, It la suppoMd, ware given by
the Judge with a tlew of suiiplying some detect, or
curing some error In tbe foriDer Inatruetlons.
Tbe counsel tor pislnclff eiamlosd tbosa other
"further Instructlona," and (witb a prMeatando
against their being entitled to any notlca whatever,
considering the place tbey occupy on the record)
contended that, ao far from corrsctlnic error, they
Sunga Into deeper InJuatlce and abaurdtty. They
II the Jury tbat the title -* ■'--■- - — ■— — —
lee made by her
of bar husband,
and her belra until an "aaverse possassion - wna
Now. here la the arrot of submitting a qaestloa
of pore law to the Jnry, and of mlsUklng the law
applicable to tbe queallon. It was an error, as has
been demonstrated, to tell tbe Jury that an "ad-
verse possession" alone could devest Maria Louisa
of ber title. Tba law, aa baa been shown, la pre*
elsely the reverse. The Judge must have contem-
Slaied (If aoy law) tbe Anglo- American Jurlspru-
ence, which renders an adverss possession, ob-
tained or presumed to be obtained by vtolenre, dis-
seisin, or fraud, and continued (or twenty years,
a bar to an action of ejectment.
Agsln. Id tbls new "further Instruction." tbe
Judge tells the Juty that If the Jury should be o(
opinion that St Cyr came to tbe possession, not as
tenant of Uarle Louise, but under « title and claim
adverse to ber. aucb poswaslan ao commenced
mid beget prescriptive title. If continued long
: that abandonment of t
, giving p resell pi Ion ; and commits the
"sdverae possess I on," for tbe purpose of prescrlp-
may be considered aa continuing, allbough
lifted that tbia
eonrt tells the Jury t
Ion that Rene Klerse
ress. the deed from :
I.ou1s Cbancelller. aai
ilnlon that Rene «
nesa, a deed of conveyance of his own land, i
to the maker of the deed, c
the nominal
"fur-
(her tnstrucLiuu. il
opinion that Rene K1 , _
said Uarle. did not sign aa subscribing w
that the aame Is fraudulent as against uiui, ui>
title wsa Dot passed by tbe alleged Bale.
The counael for plaintiff contended that hen was
■ rnmplei accumulation of error : Brat, as haa been
rved, the Judge makes tbe tact of Rene being
. ._^.^. .jj ^J. ... — .„.., .. —
to the effect
of the deed on the intereat'of Bene: and, i .
he gratultoaaly auggests fraud against tbat deed t«
the Jury, and tbat, *bft _*feS™e^,?lJ'>«.J-""
. lalon hHTlng looe miaut with the dwd.
of harlDg existed Id LouIb Chancelller at tbe date
ol bla daalh, and apcciDcall; di ' '
_, --_.t to tS»
ncord of tbe InreDtor;, aale, aod nartltlon ; and,
bealdea. to the abundaai parol CTldenn of tbe po*-
malon of LouEi Cbaucellfer. aod of bla widow, af-
t«r bU decease, of Klerwieau'a fortf arpral*.
For tbe nature and vilidllT of a dwd. aiicb aa
that la erldence from M. U. Kobiltard to Ix>iil«
ClUDCClller. tbe cOQDsel for plaintiff referred to,
■Bd cited tlia Abocado Anerlcsaa (toI. 2, p. 62,
tborltr' ia here flTen, aa traoilated Into RnRlUh
tram tbe orlglaBT Spanlab lanxiiage.
"Tbe autbentle documeal^ given bT tbe compe-
twit aathorlllea, eonatlCute full pi-oaf (plena pruc-
bal. aa alio do [he capli~< of the protocol, tlven by
the ootar; who took them."
Authentic deeda ate deicrlbed ai tollowa bj tbe
lame ■nthorttr :
"1 Hit rumen t a. or wrltlnm, are Dubllc or prWnle:
Etllc are thoae expedited bv tbe Rovernment and
principal eienta. under tbe seal of stale, and
tboaa made bj a ootarjr lescrlbano publico). In the
preaeae* of tbe partlea tbereto. witb tbe a^lstarce
« two wltneaaea, all of whom the partlea are wlt-
•eaaea, altnla( with the notarr."
Oera the deed Id evldenea correnpondi. in a]| Ita
p«rtm with this descrlptloa. Its authoril '-
llabed b
..lof of tb-h
r befon
bandwrltlng of Rene Klemereaii himself, aa one or
the two '"wltneasea of aialstauee."
Against a dei^d of this aiittaentic charactpr. llie
Jodne, without Ihe s11«bte»t ground for ao d^i no.
been started bT the detrndanl hlmBelt. or auy In
■tmclloD raiieO for with mnrct lo It.
Tbe counsel for plalntitT hsTlnit thiia endcaTored
to demonatrate tbe error and InjiiqClce of the la-
•trnctlona aaked for br the defendant and of the
furtber Inatnicttona flven tn the JiiiiRe In aid of
them, praceeded to paaa In reriew tbe InsliurlloDa
wblrh liad been aaked br the pialadff aad refused
b7 the District Court.
Of tbe tblrtr InstnietLona asked for hr Ihe
-stLnctly .. .— , --
inable the court to Instruct tbe Jur; correctlr as
a Ihe nature of title bf prescription, aod In what
The title aet op bf the det>
prescription, and
founding of laws •
y pre»r
I is
irlH prudence
epanlsb and A diIo- American j
■peetlvety : and which, as has beei
npat degree antasnnlstlc to each other.
Besides, tbe plaintiffs counsel. In asking for
these Instructions, coasldered that Ibej acled In
conformlt; wltb the rule of this court, which ro-
Quiree that the apeclal points should be spread up-
on the record upon which tbe opinion of the court
below la called for, and Instructions asked to the
Jnrr.
Tbe counsel for the nlalntlir then contended that
tbe Inslructlona asked far and refused were er-
roneouslT refused bv tbe Judge, and that It was
moTallr Impoaslble that the jurr, particularly on
tbe question of prescription, which was the de-
fense set up, could hare glren a second Terdlet.
In this cimdensed report of tbe argnment. It la
not eoDsldered oecesaar; to gtre the whole of tha
analyala of plalnlllTa counaci of tbost inatnietlona,
A few of tbe most Important ot them only will be
Bt tbe aaeond Instmctlon asked for br the
^IntlS and refnaed bj the court, the plRlntlff
cUlmad the beneflt of preserlpllan. If preacrlptlon
were allowed to run for unoccupied land.
Tbe judge refused tbia, althoiiab be gaTS tbe ben-
«at of nrescrlptlDO to tbe defendanF. Here tbe
Mtinael tor plaintiff dcmonatrated that It pteacrlp-
tion ran at all. It would be found that Madame
Cbanceiiler bad all tbe iDgredients ot title br pre-
terlption, attuij, boaua tltuloi^ bon* llde^ and
warn abown, that i.unB>ttl»»
. .. ._ that ot ber buaband, atae ka^
•I the date of the Treaty of Cession. ■ pr«*crlp(ki«
of thirty jeara for Gamacbe'a Arpenta. 'and ['TSl
■Hntloi
Yet t
a (MjfKHlon
reau's arpents.
judge refused preacrlptlon Jo
tb* p
the defendant. Tbia waa tba
itraordluary, Inaamucb ai It prcscrtptlaK
owed to avail the plaintiff. It would ^r*
-. dispensed, on bts part, wltb tba prodao-
tlon of any other than an nrdlnarr tllulna, pottlas
" •" " question ot tbe true tttla M
iriglnal grantees.
ni[r>icnnn asked for by (he ptalnllff. sad
by the court, which wen" • -'^■— - •
t of tbe c
Ived troi
lotlce of Madame Chan eel Hera' title, i
ould I
believe that
rail I
I tbeo >
• refua
> had
ssrrlpttoB
BT IDF refusal at
ere manifestly led lo
In him nnder wboa
ructions aaked by plsluim and refused
rt. wblcb go to establish tha doctrine
lurcbase a thing pending before himself
I. that
claim to bis own vendor for h..
(hen eiamlned: and. upon the prlneiplea alreadv
deielniied. and the authnrllles i-eferred to from all
the codes ot erery ciTlllied nation, were contended
lo hiiyr been en-onrouslv refused. Thus tbe Jury
were led to believe that It was of no Importance (a
Ihi- di'clslon of the dpferdunt's rlabt of prescrlptlaD,
whither or not tbe defendant's title deed was Itsrit
an net of judlclnl or Dduclary corruption, or tha
conllrmallon made to tbe grantor In that deed, a
coirupt abuae ot fiduciary or Judicial power.
The lent Instructions that will be mentioned Is
this summsry of tbe argument of plslntllTa csns-
•el, Brked tor by ptalnllff. and erroneously ra-
fuind by Ihe Judge ol the District Court, are tboM
which call upon the Judge to iDMnict the Jary tbat
the di'eils of the 2nd October. 1793. Cvnld (iTe ■•
title, nor no possession: and tbat tbey were botk
not oDlT void at "formal tlllea." upoD wblcb lo
hnae prescription, but mere Crimea, known Id Itta
Kpnnlsh Ian by the name ot esleiU>nato, pnnlsbabl*
by bsnishment. and tbe refunding of the purchaaa
money. The Jury, by the refusal o* •"-- "
itlff having tbns. In
,.„ ... establish tbe title ot
In oueatlon. the total fall-
idant to rebut or defeat that tltla
"lo In himself, or r
., _ _tTlew ot
: „ demonatrated
t t>elow. concluded by Inyok-
argument, endeavored
to land can only be anjulred
ncr prescribed by the law ot
land la sltnaied."
In the present case, tbe lei lod
cable. Is the law ot Rnaln. If that
the puce wbcre aneh
lod rel altn antt-
wlll he found entirely to Justltv the ennclnsloa
which tbey now arrived, f -" •*■-■ "- -
ment of tbe District Court
reverted, with c^-'- --■" *
trial de novo, wnu sum
vent. In future, the yark
Dlatrtct CotiTt In tbli ca
I, and ttie case ri
ougbt t
anded f
Mr. Gerer. for tba defendant :
Before proceeding to an examl ..
""••Ions of law arising on the facta In tte eb,,..^
.. ._ _t .1.-. — p,f.j „( (1^
I of na
It may be proper to obserye that __ __ . ._
common law of England wa" In force in I^Mana
or Missouri territory, now Btate ot Misaoart nattl
the Ifith of JsnT.arv, IBlfl, wb-o the T^gtalatnra
passed en Aet declaring tbat the conunoa law at
England, and statutes - aid thereof, maila prlar
to tbe fourth year of J* * 1., ■*wbteh comiDoa la*
and atatutea are not contrary la the lawa ot tUa
territory, and not npnfnaBt to, nor iDMuMa^
with tbe ConsUtntloB and lawa of tha CaltaA
■UtM. •tell b* tlw rale ol dMilon In tbH terri-
tory, aatii alUrad ar repfaLnl br ihr Lrsliliti -
•njr law. uaaac «r cuBtom to tb~ -
(itbilBttdlD^
, uaaac «r cuBtom
dlni?'
Until thp pautse of tbli act. tb* law*, uugii
knd ciutoina Id (orc« at tbc data of thr Treaty of
r*s*lon contlDued In full tome: and at ilierr la no
BpanlKb law on tbc aubjtct of VXtn bt pmcrlptlop
conllDued In full faice. at luit uiitll Decrnilxr,
Tm»*j ItflS, wbcD tbe Cnt act barring •ibe rl||bl
mulDtalD
t title '
._ . It that w
the drfendai
trici Court of Ibe United Statca. In the caae of
■Dtcta (. KllisliuniaDt and Rosen, and bv tbp 811-
Bernt Court uf (be State. iD the cbm of t.lndell t.
Nalr, that tbe Spanlib law In force at [be date
of tha treatj was not abroanted bj the Act of
Janiiarv. ISin, bul CDnllniird Td force at least until
tb« 12th Kebruar;. IN25. when an Act vai passed
iDconalstenl witb [be atalule lavri uf tbe State.
""" ■ " ■ ■ *e decldr-d accord I nir to the
' ' ' ' la, tbe Katiite
.. „ -_e Slate o( Mls-
■Diin. Tbe laws of Bpain are coaCnlued la rarlaua
eodea, promulitated at different periods; an le-
eoiint of wblrb will be fouad in tbe preraee to
Moreau * rarllos'a Partldai. Neither tlie Rotnan
_._.. , ^ ijj^ y^^ ^j France, cItII o
la of BDj autboritT o
Ibe queiClona prciented by
loois of Parla and ordinance* of
lervcd Id [«ulilane wbUe II re-
domlnlon of France. Spoln took
. j,r (1,, Treaty of l""'
. - _ -. - — elllj, who w»» ve
with eicraordlaary powera, by a proelainatlon nub-
lllbwl 2<llb NoTomber, 1760. ■bollshed the autborl-
8F Of the French law* and aubatltuled those ('
palQ. The return of Ijiiililana undi>r the domli
Ion of France, and It* trnnsfcr to the Unllcd Stilt
-"-■ — t affect the authority of the Spdnlsb lnw
French, during the 1
they might deem i
The eouniel for thi ,_ .
Roman and Treacb Inw*. fro
made nnmeroua quotations, most oC whlcb ba
appllcatloD to tbe point* In coniroreray. an
til'boiil ai'thorllv. No Tuitber notice will I
fore be taken of tbem.
Appl.rlnr the law which I* of authority t
Urts of the ceae aa tbay are prewryed oi
fecorit, It will appear—
■l Cyr wi
tbt alxlh s _ _ _
2 That Ibe defendant In error li tbe Icpnl repre-
•entatlTe of both Qamache and KIcraerenu, for
wborn tbe lurreyn were made, and baa ar<iiilred
WhateTrr title Ibey or either of then po'^aesxed.
■1 Wbaterer Interest Louli Cbancelller or ble
Widow bad. or may b* supposed to have had, tins
t to them and tbeir repr«MDtatlTe* by
aliandonn
connrraatloD
Id> under an art pfi-sfd after the conBrtnation.
S. That Ibe di>rpn[lnnt la error baa arqiilrcd a
tompetent title bv preactlptlon lo the whole of the
premlwa In controTeniy, and sitcb title ia available
to blm aa a full defense to the action,
, Aa lo tbe ol)Jectlani taken lo Mip actmlislon of
the deeds from Finmncbe and Kleiserean to St. Cyr.
It will be obsprvd tbat they are notarial acta made
a* were all convejanca and acta of sale in Cpper
LouMana. 8ce l^artlda 3, tit. IS. law 114.
They are both made conformalili to Ibe law then
•n force, the originals preserved amona tba pubic
arcblv— . n-..l are ■iiimf of ^Ivit they coofnin. M.
* r. Parlldas. toI 1, page 233.
These deeds beint depoalird In the public ar-
oItc*. wblcb were transferred to tbe Onstody of
tbe rr-cnriirr of SI. I.H'ils Tountv. snd by blm tj.'oi
«ltli delivered to defendant, under an Ac^ at the
LlaUlature passed 2M IHcaabet. ISIH ,«ea Oey-
thelr Iving a
it \3 true Ibat oeltber tbe signature hue uuicwi
character of Zenon Trudeau was proved 1 It I*
equally tru* tbat neither was dlipuled : nor wai
such proof necessary, tbe court tH-'Inx bound to
know both Judicially. There would Ik Just aa
miicb propriety la rsqalrlnR the proof of the *l|-
nature and olBclal ebaracier of a lerrllorUl offleer,
a* of those of the local oiBcers of Upper l^ulslaDa
before tbe treaty. Tbe oncers of Hpain In Louisi-
ana arvjuat as well known. Judicially, to tbennuta
of the united States, as tba offlcers of the tarrttory
or Htate of Uluourl. The torn) of Eovernnwnt eaa
niHVe no difference Tbe nrorlncTal (ovemmant
of tapper I.auislana cannot be treated by u* as ■
foreign government, whose acta and KboM laws ara
to be proved.
•Tbe nullity ot both deed% la, boweier. ['TSS
urged, bpoause, as la aald : I. The grantors were
out of poaiesalon. 2. TbeIr prior conveyances to
another wrre of record. And 3. Tbe grantors were
guilty of a crime, severely punUbable according to
To' ''an "thl^^it ta ■ sofflclent answer (hat al-
thougb tbe grantors were not. tbe grantee was In
poatesslon. actual, open and notorious. 2. Sler-
doubt on that point Is settled by tbe Hndlng of
tbe jury. And It Is not pretended tbat Oamache
ever conveyed to any other the aoutb bait of hla
lot : so tbst. pro tanio. tbe deed is valid. Besides,
there Is no evidence that either the deed ot ei-
baoge briween _pamache aud Cbancelller ~~ —
:. Cyr. But
er 01 such a deed. It
nreyance Is void ; OB
of tbem'lirst gets tbe poMessIon,
tbougb be bo tbe Innlor vendee, will have tbe beat
title to It Partldaa. B. tit. S, law SO, 61, H. A
C. vol. 2, page GOS, SDT.
It Is further urged Ibat the deeds sre veld, be-
cause, as it Is said. St. Cyr was a witness lo tba
tale ot those two arpenls to the widow Cbancelller,
and beld tbose arpenta subject ts her still. This
Is an assumption ot facta not Jnstllled bv tho rec-
ord. St. Cyr was indeed present at tbe tale ot
the pffpcts of I.oMi" rhancelller. and purchased a
few chattels: but there Is no evidence that he wit-
nessed any sale lo the widow, or that bo was pres-
ent when the srpent and a half (not two arpenta)
e sold t
ber.
lb* sale, and being a purchaser.
In determining a disputed fact namelv, whetbar
Si. Tvr. bnrl nntlce of tbe wldaw't claim: and the
court so Instnicted tbe Jurv. But the court waa
not authorized (0 resolve tb* question of fact In
favor ot tbe plaintiff, and reject tbc deeds.
B bid 11
e ot t
widow's purchaae of her husband's Interest In the
lots, still if tbe deceased bad no title to lots jinr-
chnaed by her. 81. Cyr might lawfully pnrenaat
from the true owner : snd this question of title da-
pendrd upon a number of facts to be determined
(.nmache. snd Is signed Rapllste (-tinscbe. instead
rtencp that the lieu tenant-governor recognised In
rtantl'te naraacbe. tbe person who It called In tbe
reylilrr of survey. Joseph aamsche.
To determine tbe second proposition. It will be
npce^anrv a- conilder Ihe erldeica of title to the
several parts of the premises. And,
1. As to the northern half ot Ibe northmv lot
II dopi not nnpear tbat .Tobn Rintlste Oamache.
who signed tbe convoyanca to Cbancelllet. In tb*
person for whom tbe survey wai made. On tbe
other band, the entrv In the rearlatrr ot anreey, •
public record : the eieeutlon of the deed of Baritlsle
Oamnrhe to St. Cyr before the lIcutenaot-nTemor,
by whom the grantor la called .Toseph GaBHChe,
nllli a direct reference to the registry of anrrej,
ind tbe subsequent action ot the commlaalonera,
ibo* conclusively tbat tbia grantor. Saptiaie Qa-
Doehe, Is tlw TOTT psrvoD fni whom ta* (nrrei'
The «*lil>nc*, I
ioMpli Id ttw raglitrj of ■□rrcr, itlir It doc* Dot
appear thit CluDcelller, or aDjona cIkIdiIdi under
Urn, ever bad posKulaD ol tbe north bait of
nortbem lot: wUle It la etear that St. Cjr bad
opeD and DOlarloum pouenlon for a loDC period ;
and the eoDTejaoce to blm, thODth Jnnlar, mnat
prevalE. Where a oun iclla the aame tblni to two
perwina at different time*, whlchaoer— ■ -' "■ —
dee, wni iS^
law SO, 61: U
pan eae. asT.
3. Ab to tbe M>iitbern half of tbe nme lot
Cbaneetller bad the pobmmIod for a abort period,
bat he Dtm had ■ canveyaoee from anr penoa,
and hi* posseuloD wa> not obtained or Gomlaanced
In the manaer, nor held tor a aofflclent lenfth of
tinie to (Ivc title by prescrlutlon. Be* the law* on
thli point, referred to on Ibe 5th propoaltlon. Bt.
Cjt bad acma] posseaelon, and a reiular conrej-
■n«e from the owner. St. CiT. and IboH elalnlBi
BDder bim. bud tbe open, nototloui and-undla-
tnrbed posaesaton tor Cortj.two reara twfore the
TM4*1 eiecullun of Ibe deed bv Aueuste 'GBmacbe.
■Oder which alone the plaintiff - "-'- --
Jli be be tbe Junior t*d-
Itle to It. Partida*. 6, T. B,
A Carlton'* Partldaa, vol. 2,
"ot.
« of title t
tb« loatberi
half of Ibe nortber
The defendant In er
title to tbe whole of
(roBi Jo*eph Gamicba.
a. Ai to the •outbem lot *UTTe7ed tor Kler-
••reau. the plaintiff claim* under a deed pnrportlna
to bare been eiecuted by Harle Reneui. who. It I*
alleged, waa the wife o( Eleraercau ; and It 1*
claimed that this deed oticht to haTe tbe stTret of a
deed executed bj Klerierean a* (Tantor, because.
It It alleEcd, that he alsocd a* atteitlDi witnes*.
On tbe oHier hand. It la conlended that Tbia paper
U InoperatlT* for any purpo**; beeaaoa It appear*
a tbe UDConlradlctM teallmony ot two wltnene*
at A pari of the name of the ccantor waa written
trTst, the *lenature Iteae Klreeani we* allcEPd to
be that of Kersereiu. A wltDeaa who had fnt-
ducf d ^T plaintiff: he, howerer, not oniy doea not
eatabUan the elgnature, but bli testimony goes far
to dlsprOTe It. There wai an Irremlar and 11-
leial attempt t
md*. which wholly
I paper
«f Klergi
rairthe plaintiff.
^ . rle Beneu* wa* the wife
; that tbe eieeutlon ol tbe deed la
and that Rene Klersereaa aubacrlbed It a*
a wllneai. It doea not follow that It operate* *a a
EODTcyance t>y bim. or pae* the title a* aitalnit
wlibDiit
1 In fore
it the
to aphold Bucb a proimalt
D[ that Marie Renem < —
1 tbe
iirchaaed Of her In bad
rnlib
_. __ _ _j which to found a
, Bee Partida*. 8, tit. Ifl, Law 10: «.
i C.'a, Fartldai, TOl. 1, p. BSa ; Partldaa, 7, tIL
S3. Law « : M. A C, Tol. 3. p. ISaS. Uucb tea*
can It be maOe to operate ai a complete conicy-
aoce of tbe (Itle ot Kleraerenu, a* aialnal aob**-
Sient bona flde putchaaer* from him. without no-
ce of thl« paper.
To maintain tbe propoaltlon that the deed nf
Harle Reneui pas*e* tbe title ot Rene Klf-raerean,
PBttldaa,^ tit. 30 Law 11. la cited. The title SO
itttdaa, i, III. au,
■ta of tbe mode* of ecqulrlng or loilug ]
■aaalOD! and Law II of tbla tllie. aeeordlni to inc
tnuialatlan of Morean A Car It on, wblrh la pro~
famd to that at plalntir* eounael, read*, -ft a
thtni be nold or alienated to a man In poavession
Ot n, with tbe knowledce ot the owner, who doea
not opno** II. the former will acqnlre tbe lawful
poawaaion tbereot. In tbe aame manner ai It tt
bad been dellTcred to hlm bj Ibe owner blTnaelt."
Tbla law la In perfect barmonr with the whole of
Ibe Bpanlah code, which attache* the Dnt Im-
portaoca to po*(e*iloa. aa tbe Indicium of titia,
and the only aatlea to third partona. of traosbr.
Tbla law, when applied to the facta of tbla a
tnalead or aetttni np tbe deed ot Marie Reoeui.
Teatloa tbe baiter title to the aoulbern lot ■■ I
flalDlIff, aDrma tbe title ot tbe defendant to bi
"• Tbe poamalon la protected aa acalnat 1
_i.li. .1.. Moa acquired In tlM mi
italed coDtlnnea; but It doa n_.
owDer; who acqulraa and
of the acquleicenc* ot l., _ _ , ,
Tloualy made by a person not owner. On the «
trary, the rlabt la with the party In poaaradoa.
eren wber* tliere la a prevlooa sale by lit* tro*
owner, of wblcb ha baa notice ; a fortiori, when tkc
Ural TendoT la not the owner, and the aeroBd
TODdee ba* no notice of Ibe prior aala. ParttOaa
B, III. B. Law GO, Gl.
All that tbe plaintiff eao claim Is that tlic daed
sball operate aa If tt had been executed by Klerwr-
eau, and that Madame Ctaaocelller aiicreed to
-CtaiMMtller'* till* In tbla eod the half arpent coa*
Teyed to bim by Qamacbe. Aaaumlaf this to be
true, both lot* wvre atlerwards sold "to a man.
Bt Cyr, In posaetalon of tbem. with the kDowleafate
of Madame Cbaoeelller, who did not oppoee It;
tbe former (8t Cyr) acquired the lawful pnuan
slon thereof In tbe same manner aa It It bad been
deilTercd to bim by Madam* Cbaneelller herMH."
1'he linowledBe and acquiescence of Madame Cban-
eelller Is esUbilsbed In thla ease br tbe narol «■-
dence, by the open :
St. t^r, by lb* enttk_ __ . ._
by the authenticity of the deeds, by the
notoriety of the poaae^aioD and title ui «.
•Cyr. Considering the case aa thst of two [•T»a
purchanen of the aame Ihinp. from the sam* per
sons, at different times, the Spanish law Test* tlw
titie 11 St. Cyr. and Iboae cialmlna under blai;
because « the [raaMaslon, M. A C.'i Partldaa, vol.
1. SM.
has the better tl
well I
I the I
orfhcr
Tbe b
Gamscbs. Whether Kit.
witness to the deed of Marie Ueupui ot a
question of fact properly left to tbe Jury.
siructlona ot the court to the Jury on ims ^
were all In faror ot tbe plalntllt. and were not
cepted to hy either parly
n.t- ...j,.,.t -.1- -u|] deeree of partition of
of I^ulB ChaocelUer do not, i
e Spanlah 1a<
rordlm
r title
e ot I.aii1s ChaBcrlllcr.
widow to tbe iaod purchasec
tbe plaintiff In the drat ret
only operate to paaa the tltl
auch aill wsa, and nellhtr
It A Judicial sale, or a* It la railed, an adjndlea.
tlon, passe* the right to the tbing as It la In bim
whose right la aold without a dellvrrj ; It operate*
to traasler the rlvll poasesslon. In tbla It dir
tcra from a deed, wblcb muat be ai-companled by
tbe detlrerj of possesalon to p«s* the right la tbw
thing.
A*sumlni tbe title, howeeer, to bare been ta
Madsme Chnncelller Immediately after tb* aata,
there la erldence that she ImmedlaleW madr a
Terbal sale ot ell ber Inlerest In liotb Iota to St.
Cyr; who went Into possession with tbe approba-
tion of the ajodlc and continued to occapy. poa-
aeaa. and ciiltfvita the lots aa bla own. Thla belos
found by the jury, Is luBlclent to yeat tbe Htla IB
8t Cyr. B» the lar "•— '- • — •-• -•-
arcompanlen br
tlda*. t, tit I. ., .
Uarlln-a La. Rep . N. 8.,
T. Banctiea. The ordi
plalntlff-s rounml, Is
at of any authority.
Bancbei. It was relied ,. .
~ile,_and was jllaregirdnd by the court
After 8t. C.ti
. Klrr<e
had I
I In
years. Klrraeresu and Qamnche a ..
the knowledn ot Hn. Cbanceiller, wba OM Mat
oppose It. lie then. It not before, aoaatred tfea
lawful pOBsesaloB. Partidaa, B. tit BO. I«W 11;
Partldaa, 6, lit. 6, Law ao. SI.
Tbla Tlew of the case la coaBmid b* tht acta
and acquleacenct of Ura Chsocellltr ana bott ber
t ot tb* I
by soSartng, without complaint a.
yeraa poaaeaelon of more than tbirt} i
tapeatad salat, public and pdyata, aecaH
KTS-
duriDR Ibat period; lod to lb« het
_j claim wu made bT *oj of tDm befora
tbi board af commluloiiert. Uoilar tbew eireuin-
defendant muat be resarded an (ucceeding lo Iht
title of botti Qamacb* aod KlerMrcau. aa tbeli
Tbe third propoBltloD la tbat Chancelllft aod hli
widow loat all clslm to tbe premina ij abandon-
It will b* obaervad Ibat thers waa do grant or
eoneeoalon: no title complete or Inchoite. emanit-
IBS from competent autharltj. Qamaelie and Kler-
•ertaa bad a private surTej ; tber liad notblns
more tban a oiere posseiilDa, wllli ar wllliout tlie
eonsant of tbe lleutenaDl-goreraor. Tbe Hpnolsh
soTerainent «>■ UDdtr oo obligation to grant tbr
landa to lljcm. but might have grinCed Ihpm at anT
time to anr ottier person, wttbont a breaeti of
faltb or vIolHtloD of obllgitloD. Tbcic waa aotb-
Ipg Id tbe regiilatlana or ordlaapcee (hen In farce
wnlch recogalHfa aucta permlialTe poascMlon aa an
Incboate title to aar portion at (tae domain.
Tbe acta of Cangroia eupport tbla Tiew of tlM
•objpct. Incomplete graata, conceailana, narnnta,
and orden of BUrTar arc recognized aa Imperfect
tlllea, obllfiaiorT on tbe gorernmBnt, ar at leaat
affording a claim an Ita Juitlce: and aucb titlea
ftre directed to be eonflrmcd. Hut elalrna apon
poueMlon by permlaalon of tbe Bpanlah officer, are
not triHicd aa tlllea comolala or Incomplete, ta be
conHrn^cd. but aa affording an occaalon tor ei-
(endlc!! tlie acta ot governmeat bj a grant. Str
tbe ucia 2d Uareb. ISOS; Zlat April, 1800: and
8d Marcb. I80T. 8ec. I sod 2. Lawa V. 8., Storr'a
edlilon. vol. 2, p. 966. lOlB. lOGS.
Tbf Iniereat of Gamai^he and Klenerean waa
e dlgnttT of a tenancj at will «t tbe
'"^— - "- aubjecl — ■--
dlipittj
r thej mlcht d
g ot tbe
tbini.
> ot Cbaneelller
T8«*] alt •Intercil, _.
■oment aba abandooed her poaieaalon ; and the
Belt poaaesaor, by permlaalon, and performing rba
Implied eaniUtlDDB, bad aa great an estate and
iBtomt In tbe land aa cither tiamache, KleraerMO.
Cbaneelller, or hli widow ever bad.
According to tbe law In force prior to ISIO, even
eatales Id &, held by a perfect title, might be loat
by abandonment. If a man be dlMatlttled witb his
ImmoTabte eatate. and abandons 11, Immedlatclr be
departs from It corporeallj, with an Intention that
II Bball no Inn^-oi- be bis. It will become the proper
» of bim who drat eaten thereon. Tart 3d. (It.
Z8, f^w 60: M. A C. TOl. 1. p. SdO. That Mrs.
Cbaneelller departed from tbe premlaea corporeally
ihe did ao wltl
iTd-S
3d. Tbe open and n
"•* Rer Defer havlL. ,
imliBlonera alltlog at St. Laula and
nnaer lawe protecllng her claim i ha
made before tbrm. 4tb. Harlng eel i
nntll urged to It by otht— '-' ""
portion of the '"' " "'
leia of St."!
The fourth pro
la ChotcBu on tb
■•gal title, which
_ The price
rged to It, being a larga
Tirtna •! eltbor of tba favr Bnt elaaM*. and K ••■
qnlrea na arinmcnt to abow thit tbe surrej iBada
br Duralda. thougb reKlateted, waa neither a grant,
warrant, or order of aurTej, To maintain tbtt aa-
tian, therefore. It la necesaary to the plalnltC ■•
derive title under aome act af Coagresa.
3d. The Act ot 2d March, ISoS (aec. 11, pr*-
Tlllea for the contli mutton ot Incomplete granta,
warranta, ar ordera of aarvej. Sec. Z provtdei for
grant! to occupant), with permlaalon of tbe proper
bpanlah otBcer. Bee. 4 required tbe clalmaata to
flle a notice of claim, with tbelr eTtdences of title,
before the lat Uarcb, 1806. Bee Starr'i l.nwa
V. 8.. vol. a, p. ee6. Tbe time for flllog notlcea
ot claim aad eTldence at titlea waa eitrndrd, br
the Sa aec. ot the Act ot 3d March, 1807. to lat
Jul*, 180B. Storr'B Lawa II 8.. vol. 3. p. 1030.
Br the 8d sec. ot tbe last mentioned act. lb«
commlatloneri were vested witb loll powers to
decide, according to tbe laws. uaBEea, and eualoiaa
of the French and Spanlsb govern to eots, upon all
clalma, etc.; "which declsloo of tbe commlsaioD-
en, wben In favor at tbe claimant ahall be Hnal
t Ooltcd SUteaj"
Jul;. llf<rs>. Bball. ao far as tbey are derived (rum.
or founded on, any act af rangreaa. ever after
be barred and become void, and the evidencra »t
their claim* nev^r after admitted aa evidence la
a notice of bla claim, tbe
ilher written evidenct af
Wben tbe evidence waa
claimant for (he
._ 1810. there wl ,,.
land : and, according to tbe act there cotild he
-"— -" other persons being
Tba
Tbe on If parties who. according to tbe law. could
bave anv claim, namelj. the United Statea and An-
Euate Cboteau. were iMfore them : and between
them, at leaat. tbe commlailanert war* autborlied
to mabe a flaal declAlon,
But. It la submitted tbat tbe commtaslonera were
the derivative title of clalmanla. It tbe c__ ._
be merely ot the conceaslon or orlEt-
been no object In r»ulr-
be died tor " "
il title, there could h
nation. In order to decide on the title of the per-
son clalmlog. theae documenli were Deceasarv. sod
tor na other purpose. Bealdea. tbe commlBsloaera
were to decide on the claim to lands, •wbere f 'TST
the claim waa made by any peraon, or tbe legal
rep reatnta Uvea ot any person, who, op tbe 201b
December, 1S03, were Inhabllanta, etr.
To aacertaln who la a legal representative, la
(he aense of this act, the title must be eiamloed.
and tbe contlrmatlon or decision la to be In ravur
ot the claimant, not ot the orlflnal grantee or
occupant; neceaaarlly Involving an Inquiry Into Ihe
derivative title. At the date of the confirmation
to Choteau, there waa not. and could not bt any
other valid claim agalnal tbe United Blaiei for the
aam* land. And tbe declalon of the cumnilaalonera
being BdhI agaloat tbe United Slates at the llnw
It waa made, ia flnal againat the wbnie world.
It baa been contended by the plaintiff (hat tba
eonatmatlon ta Choteau. though it veated In blm a
title valid againat the United Statea, and at tha
time good againat Cbancelller'a repreaentatlvea.
t the M
d July^aiO. veat
il Congreii pasaed ,.
m of the recorder, acting
Tbe at
a be maintained.
>t tbe tl
a thia action ■
brought aiithorlie the action of ejectment where
the plaintiff clalma agatnit peraona not having a
better title, by virtue of, lit. A purchase from tbe
United States. 3d. A pre-etnptlon right Sd, New
Madrid location. 4th. ConBrmaMon Gy. or accord.
Ing to tb» lawa ot tba Ualted lutaa. Rth. A
rrmcb or Spkolib grant, warrant or order ot
aurvey. duly anrrajed. etc.
There la no pratanaa that tlM plalntUI clalnu ^
Ited Sta
or of C
r worda. Coo
I bed t
--- -, „ -. tb» United
Btatea. or Cbancelller'e rep re«nta Uvea. In 1810:
bnt In 1813, the United Slates, without aconlrlnt
a new right may confer upon another, by grant or
upon Chateau, when the; relinquished' t
inferred
title, fhla doctrlB* la believed to b« an-
lenable.
Tbe decision of Ihe eommlsslonera In favor af
dpclared to be flnal againat (be
flnai dactaion ; bot tbelr
■ act of the nulled
t of the Sd Uarcb.
not power to make a
ilooa wart to be lata
t»t
78T
ISOT, Ihi! de-
tofon CoBfTaM for final dcUrmlnatton.
ana on ■uppo'te tbat an set of Coat'"
lac ■ dcclnlon Id U*or of > claim —
■UBsrqutnt act of CoDRrtn be li
BDllMl. Bt tba act of Sd M-— *-
clalon of tat commlaloDtrs ba
an act of CODarrsB would bai
dtclditd upon onin tlie Act of 1S05.
This Tiew of tie acti ' ~
J807. Patent cetllflciitMare io''b*"iMu«d in'ii
Of elalmanta wboie clalma arc copnrm<d. ~
Ibc Uiulnt patent* for p
AFnjtmx.
Kni*. na , the aane of • Mnfln
— _jDa*. Bafle by tkc ■■tfca«
>nit''ei^ eonflrgi- Ind aBota of Iba Halted alatea, II niial inaiaB
laot. caiild b; a : a^Hliiat a auUiequcnt aranl, under tbc aane >•■•.
mpnirei! or an- ' made bj aootber afcnt of Uw I'aitfd SlaCeL Tk*
I la connrmfd
nldfd b:
Contain plat-
JDI me [iiie oi lue ciniuLant mi perfect under tbe
cnanrmatlDD. and prorldlnt tor tbe performanca
of the mlolnlerlal acta neeeniiiirj to turnlih him
«lth tbe bigbeat etidence of title. And Concreta
ar crant by tbe commlsi
|«tent Inued according
EOf of the public iBDde
II aill be found, bant
blTt Qot attempted wba
looen. than It
] tbe lal* of
r that of 1807, I
■ tbeir clalos stood k
cellVer bad no claim to tbe tKinnlr of
t offered hj Ibe iccoad Hrtlona wl
' — ' ■""- baTlns lo«( all prvteaaa
-'- -- liad, by ateodd^
mant, b* the nnlnterrupted poweMlon
ber, ua_ br the positive llmllalloo of
t h* Impaired br ■
conformllr wllb I
land titles, procecdlna nnder tfali
Hrmed tbe claims of tba raprei
uache and Kleriereaa, and oil
armed hytbrAcl of 20th~AprMri8ia^ If M.idirr
I.arm]iie (widow chaocclller) was the reprpsent
live ot Joseph Gamache and Hene Klerneienu. tl
toe recorder ._.
fore* Id faTor of the i
br that act Itself: It i
conn rm a Hon to C ho lea
There had htta no
•t Spain, Imposing upr
a irant or complete (
eau, or to anrone claln
DrereDt a sale or doc
atotlli than a conllrmntlon
It. tben It follows tbHt tbe
is not affected br It.
:i done bv rhe joTernrnpnt
I It an* obllRBtloa in inako
le to Oamache or Klcrter-
ng under them ; nolhlug lo
Hon to an; other peiano.
e pas^ge ot tba acta ol
..^» compe'teDt. when oCerlaf tbe (rant, to Impose
tbe terms and limit the lime of applicatlan. Cfaan-
reprrKcntatltes havlnf railed lo eomplr.
the aeiond _
•f Choieau**
the lime wltliln
Clsed; U Ibe ti
Mnl'ndfS 'that
the Untied Stat<
settlei-
compiled witb.
"-*-*--* tK
1 at Ion
tor proTing Ihi
. . Ibe claimant
Salnit the prior irnnt : ret the
Tbe gOTernmeDt brlnR tbe le,.-.
land*, proponed to Test tbe titles li
■a ahould. within a limited time.
DDon Ita Juillce or bounty. In the c
tbt terms pointed out br lawi mnde
eat. Tbe comnilBsloDi>ts wer* tbe
acta of Congrei "
:b will previ
In principle.
] aiicb peril
for the Dnltetf Statei who bad auch r
Date tb«m a tilt* under Ibe name of
.. — __ . -ii__. .^ nothing to dl"
commiaaloaer*. In Ibis
recelTera. or *i>,t other atnn'a oi ii
who are autborlied to give rl):b<s n
act of tbe com ml an Ion em Is bl'xllng
Btatea. ikot because It Is tha Jiidinien
^ matter litigated between Ibem a
(r». but because tbeIr act la llie a<
And bacaaaa that act li
faiot
le coinmlsilOQen :
■tloD from Ita ap-
Tbe Act of tbe t3tb
the rlflilB. title, and c
propria vlfore. makes an eipreaa
by particular, Insleid of a general
Ihe recorder of Isnd titles hnd no no
Dili' decision Id relation to tillage loti
grant, or connrmalloa b.r tbe commlaslonera.
act GODilnned the claim hv Its terras. Tbe TTnnca
Stales having, then, bv act of Coagreaa. made a
■rant, their sKent hnd uo autborliy orer Ibe nb-
kcl. Nor had bn a poorer to art in ease'< eieloded
by tbe prorljjo 1 bts authority Is conflnpd lo Ihow
claims on whkli tbe board of commls-<lonera had
— ' decided: be had no Jurisdiction, tbprerore. ot
1 Is
. 12!
0 tbe
. ISDO," The"
IHllltr.
— .. J831, tas no other 0[>era
HcM-Iots. than to rellniiul'b all claim which the
United Slstea tben had: It certainly doea not an-
Althougb Mr. Lucas waa one of tbc comml^dBa-
era, nnd purchmed tbe land from Cbnlean wbll*
Ihe claim was pending ' * — - . -. . .
I bis
isppllcable. Tbe c
as forbidden to p
ItbiD the terrltorj
ot. thon be was en
rehire'
or Loi
Ibe board, he toob
■ ■ , (h^r-tore. dn «
oner Ondwl de-
the anthorlllo
itlff. IbouRh OB.
.. .Ilied nation, arr
■esented by tbe rerard
I dr- l.iir««
flrmrd elalB
itana : tor If be van
he benrflt of thr acta
>j grant or conftnaa-
(iccl'<loo. In Keirem
• mould aeem I, ,
■ cut. would be void. o. , ... _
' conimlailocert were not Judaea, In
nrttcd to 1ii> ln-ilcli>il nn. To cii^r.iln rhN
lilalDlllt
•for tpeelal and snr Ifled oiilecli of llmlled r'TS»
liiration. with dellned, snecinl, and llmlci-d nowem
iiid diitl-i: not to ndjudlcate lipiwrcn Htlmnt pai^
lies, but, a* npenti of the rr1te<l Sialea. lo IB-
qnire Into the nature ot Halna upon Ibe tii-tlce
»r bounty ot tbe (njyernini-Pt. v.- ben mniTe "P
;nrdlng lo set" ot rnaerr^'. ivilbln ■ ll-nHed fitnt,
I'lrt '0 nire new rl;:bl« In proj^r CR'e«. |ir«l«*ly aa
I of which la eomi
o't "iTln* tb'e*st'rPrt St
nenili-rt to alt onlliiarT
has been ratrri
~n1es * Kfalon**
n the record t»
-- -- 1 b» the eoiin^
Intlff. furnl'lies no warrant for the Im-
lUlBllOn H> often made that the defendant acted a«
I Judge In his own caie. The slirb aecHon of tbe-
Id at Sd Uareh. IBOT (atary'a l^wa U. K. enl.
FeieM 1*.
1 p. Ipni), N<|ulred tb«
esit, utik-li cert'iricDtB w»'rcqulr"<l ^'bc ]]%? wl'tti
tlip recurder; ind clie documenl refrrrml to li
notblnii mare lliaa > list ol Itie eertltldslvi w !<■
»ued tai UlnJ, made out and trkmmltied bf tlia
TrManry. And ttuucti It purport! to be ■ Hit of
conHrtiwllana ntdc by tbc board, and tht> two ccr-
tlllcaiea iranlad to Cboletu &n mcntlonftl In tba
exnptloua takun (o [be aetloii. or
t^F Claim* or Cbo-
if that th«j wcr« Bled wlthla
Man li of ItMlf proof that th«j wcr« Bled with]
Ih* lima reqolrcd br law. *t Icait, antll Ibe col
trarj li proTtd. Tlwra waa oo ''auppraolon of
truiB," or "auauutlaii at a falieboiMl,' (d the uvtt-
rntiitlai] ot tie claim. Thai L'hoteau waa the
uulfnea of 8t. Cjr„ aad be ot aaouche and Kler-
(creau. waa Inllr proved: thokiib not ncccaur; In
tbli CBuaa. No Illegal evldeoce waa iprcad on
tb* record or offered ; certlBed coplea of th» <I««d*
•f Qemacbe and Klerneresij. to St. Cjr, and an
propertj of St. tiiT, were preMDted. becaoae tbe
orlstoala were puhUe areblTea. In euatod.T of tb*
Srupar offleor, who could not tbcn bt compelled to
Plfver [bem oat of bla cuatodj, to be fllod In an-
Slber ofllce. The onl/.witDeas aworn la aupported
Id all tbe material facia by the IcallmobT tAken
at the trial ; be la contradicted In notblna except
aa (0 tbe duration ol the poaieialon and cuFllTaltan
by namaehe and Kleraercau ; and whether tbe wit-
oesi before the commlaaloncra, ot thoae railed oo
bi plBlnim at tbe trial remember wltb most ac-
curacy, la lomowbat difficult now to determine.
Tbe claim harlnf baen orlilnall* mad* bj Cho-
taau. It waa not ddIt lawful bat tDdlipanaable that
In (lie iiiili<eiriirrt proceedlnga and final dei^lslon he
iboold be a pa'tr- Tho cooTsrance br Chotiao to
Lucaa. peadini the proceedlaca, did not autborlae
or leiiTilri- n chanse of parly. On llie contrari,
the contlrmallon, U made at all, eonld onl; b« fe
tho claimant.
It Cboteau bad practiced a fraud In oblalnlni
the conarmatloo, Ibe United Btalea mlKht, parhapi,
annul It, In a proper proceeding before a proper
tribunal ; but an action of eJecloKnt la not tbe
mode, nor a court of Ian tbe tribunal : much leaa
can tba talldlty of tbe conflrmallon be Inquired
Into In • ault between other partlea. But the
Elalntllf li not In a condition to Impeach the coo-
rmallon for fraud In any form of proceeding, t>o-
Cora aD7 trlbanal, alnce be wai not. nor waa any
person under whom be dalmi, a party ; and nelttier
•f tbem, at tbe time It waa made, had any Inlcr-
Mt to be affected by It. The Imputation*, tbere-
fore, In whleb tba counsel has an freely Indiilged
•gainst the character and conduct of Ibe late Col.
_. _ altogelL
Ion eipreim
1B3£, OB the I
chargcg then n
The arih pro
Judge Lucas, and the i
, with reten
I like
.e premlaea In cootraTerat, atall-
lull delensa, Independent of the
and Ibe facta . ._ —
found In Partldaa. 3. til. SO; He
Partldna, Tot. I, page 3SB to 80:1.
••tahllsbing tbe law ot prascrlptlon. that la, the ae-
Sulslthm ol praptrty by the •Ber' -
■ law let, an^ -— ■■- -— -
Sulslthm ol praptrty by the tfect of time. Is gUen
■ Uw let, and anpllsa wl(" - -"'-
cose, wbere there naa
alon In tba defendant and thoae under whom he
clalna for more than forty years, ander a claim
•f titia racognlied br tbe gorernment ot flpala and
tbe United StaCea.
_Jjiw 18^ M. * (J. Tol. 1. page 332. declares that
tgr pnrcbaae
3' It daring ten' rearB!"wblVe"'tbe"i
neb peraon will acquire the ibing by prescrlptli
BOtwllhs Ian ding ha received from one who n
not tbe true owner." And be will not be obllt
allerwarda to anawar therefor (o any peraon w
should aay be could prore be waa the Irn* p
prlctor ot tbe thine and tbat ba was Ignorant tt
• I* ed.
mI^u
he had aeqalnd K hj pfeaerlptloB. And thu law
applies where tbe acquisition la In good faltb, and
the acquirer retains peaceable posaesslon of It, so
that It Is not demanded ot blm iluiliig tbe whole
time necessary to acquire It by prescription.
tio by law 19. pngt 363. AlthouKb the acquisi-
tion la on bad faltb, yet If tbe a>rner knew ol the
allenatlnB, and did not demand Ibe thing Klthlu
ten years Iron the day he knew of It. It be ware
In tbe country, or Iweuly years It be were out of
tbe possesaor acquires title hj prescrip-
tion, I
.."r.'s
.-. said p
ilthough lb
llilllOD V
of It. U
-1 In'S-'''
I. page sea ; t,aw :
purchase until tl
Therefore, It the d
good faltb by hin
claims, and a posi
If Madame Chanci
though
lie Is not In any part ot
and Is: and Is In the
of the pruTlnc^ tbough
1. -ii, page 381.
If Ctaancenier was In the
timf from the day of ber
Her knew ot the a
ig that It was not the property ot olm
from whom be obtained It. and that be bad no pow-
to alienate It. Partldas. T, tit. S3, Law 9 : M.
"b?*: '
I torni, 1
4 C, *al. 3, page 1S3U : Martini
MM 19T. New Series : vol, 4. page 2ii. Oood
fallb la always presumed where tile possci
lual title; tbat is. a conTeyance capable o
ferrlng tbe property, not detectWe "- '"
disclosing facts which show tbat tl .
whom II Is acquired has no title. Frique T, Bop
kina. Martln'a I.a. Rep. K, 8, vol. 4, page 210.
Poasesslon la either natural or civil— natural,
^'""~ " bolda a tblng corporeally (1. *., pedis
._., _.. — - _.. ... ,f jj,
in II;
raseai the thing cor '
and andera tan ding.
— — If be possesaed It In nenon.
Partldaa, 3, tit. SO, Law 2 ; II. * C, to). 1. 304.
When a man baa once acquired posMtnlon, that
poaseealoa la preaumed to continue, wlietber bo
It. wltb an Intsntlon no longer to retain It. Par-
tldaa, 3, tit, 30, Law 12 : M. A C.. rol. 1, page 400.
bouse, etc.. not with tba Intention t
for tbongh be does not poaseai the thing corporeal-
ly. yei be does In b'- — "' --■ • — ' — • — " '■'-'-
T-be p
e thing
.Jcept by abandoumpnt. eipulnl .. ...
try. Ih,. Law IT. pace 4oi ; Parlldas. 8, tU. 29,
law 39: M, A C. vaf 1, page SSO, Prescription
ones begun, conllnuea to run until Interrupted ur
deatroyed by abandonment, or lots of paixe^jlan by
aipulslon, or adreraa entry, or by the comnience-
ment at a suit (I'artldas, S. tit. 29. Law 29),
•bleb la Ibe meanlnc ol the "demand," In Law 18.
aame Partlda and lltia,
A man may add tbe time during which hr poa-
sessed a tblng to the time It was held by Ibe per
son from whom he olitalned It. In order to nre-
Bcrlba. Partldas, 3. tit. 10, Law 13: U. A C. 1.^81.
It la true that where good faith la required. It
la necessary that the possession should be In good
fallb during tbe wbole or the time ncce<L4arv ; iku,
a poEseasor for a lime abort of the reqTiMIe period.
though himself In good faltb. cannot add the lime
bis
1 fsllh
„ prescribe; ,
Klor puascswrs In good faith, through whon
rives title, aa may be necoaary to make tbe re-
quired number of auecesalve veara.
Tbia. however. Is only applicable to the prescrip
tlon ot ten nr twenty years, where the owner Is U-
norant of Ibe alienation. For It be knew of It.
good fsltb In the poaseasors Is not required. IB
such cases, therefore, aa In the prescription at
thirty years, the time of posieaalon of any numbel
of anccesilve possessors In privity of title, may b«
sdded together. II necessary to make out the full
period of time, whether any or all ol them t«a-
aessed In bad talth. or otberwlae.
*la arder_lo maintain Che prescription set [■7I>1
I'll
Wbetbar Bt. <
««7 Iwmtcn ■llltmrr upaUloB act which aa-
Itorlnd tb* PTMldiKit to tmplor mllttarT roree m
IMDOTP Irom tandi bclonilna to Iba Dnltcd State!
■nj penal wbo ihouJa alttmiil ■ uttlfcncnl
ttaereon. It the Iwo aipcnti la gucatlon baloncrd
to MBdamc Clitnedlltr, or Is toy oOur pcraon
(aDd o-rialolT thr luchoatc title, which U pniptr-
tT. ira* la brr or Ur Ctaotuu), there le DOtblDS In
' r tcoDi taklai paiHuIon, or
Blm tor c
• preTf
Tented from eierclalai aoT act ot owneralilp
torbldden lo occup)" hTi prapertjp, or eTsp lo I
paw DD ItiBt of other peiiODi. Tae poneulOD
tlDiilDt; In I h'lteiiu and in i.nets ttitr blia. C
was no InterruplloD of the prcacrlptlon.
The plalDdlT. and thoae under wbom ha cla
alapt upon Ibclr claim mora than fortj »e«r«, «
nut any attempt to diaturb an adrara* poaeeai
> the
. bj .
I pmcrlpttoD eom-
luld be Interrupted, There la do aTldence
iBt Uadame Chancel liar, durlni (hat period, erer
ipnoacd or CTCD dreamed that aba bad a Talld
aim to the lots. It la true that. In 1818. aceord-
ig to her lurarloR, when aoma penon (usKMIed
I bar ttaHl poialbl; aha bad a claim, abe attamptad
hu^nd ware praTatlnt u
. . .,g,^ ,, ...
. . ■ conal^nt-
oultcIalD dcrd to
like conaldentlao.
. like daed to tka
flrat attrmpt la iw-
Oaorgn F. Slrotber.
In JQIT tollowlnx. aieeiil
plaintiff, And a/tar that,
corar tba propartr bj id It waa made. •>■ >— -
maaDtlme. rh<' defendant, and itaoae under whom
be claim*, had oootlaoad In tba nnlnrarmptcd pa»
•aaalon. dolai all tblnca rcqaind br law ta pwteat
bla title. In jiood tnilb. bellcTlnii tbenaelTM tbe
owneri. CertalDlr. It • eaaa wu bcm1«4 ta IIIM-
._.. .t. ._^ — _. .^ gpanlah law tt prcacri^
d OB Um tacti pnaaatad kr
tloD. It Is no'
tbia racord.
It la n
It IB detail
:ba objec
prajed tor br ifat plaintiff and refused bT tb« caart.
All, or oearlr all of them, demand at IIm eotn to
decid* quaitiani of tact, nclualralr wIthU (b*
proTlnce of tbe lu^- *'"' '*"' """ reimn. wer*
proparl; rajecttd. Tha polnta of law premted br
iDitrucllooa clTan or ratuaed. bare been aulBclaot-
ll conildered. It any error waa eommlttad b; the
Ulitrtct Court. It waa In rallns poInU of law. and
Inatructlng tba Jurj too itroDfly Is taror aC Ikt
plAtsUS i t wbfck ha MBDot ooaplala.
1S»»
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