REPORTS OF OASES ARGUED AND ADJUDGED IN THE SUPREME COURT OK THE UNITED STATES, JANUARY TERM 1835. By RICHARD PETERS, COUNSELLOR AT LAW, AND REPORTER OF THE SUPREME COURT OF THE UNITED STATES. VOL. IX. THIRD EDITION. EDITED, WITH NOTES AND REFERENCES TO LATER DECISIONS, BY FREDERICK C. BRIGHTLY, AUTHOR OF THE “FEDERAL DIGEST,” ETC. THE BANKS LAW PUBLISHING COMPANY, 21 Murray Street, NEW YORK. 1899. Entered according to Act of Congress, in the year 1884, By BANKS & BROTHERS, In the ofhce of the Librarian of Congress, at Washington. MR. JUSTICE JOHNSON. ORDER OF COURT. Mb. Butleb, the Attorney-General for the United States, having moved the court, in pursuance of the third resolve contained in the subjoined proceedings of the bar and officers of this court, to have said proceedings entered on the records of the court, Mr. Chief Justice Mabshall remarked as follows : “ The sentiments of respectful affection just expressed for our deceased brother, are most grateful to myself and to all my brethren. We too condole with you ; and in ordering the resolutions to be recorded, we indulge our own feelings, not less than the feelings of those who make the application.” Whereupon, it is considered and ordered by the court, that the said proceedings of the bar and officers be entered upon the minutes, and which are as follows, to wit : “ At a meeting of the members of the bar of the Supreme Court of the United States, and of the officers of the court, held in the supre.me court room, in the city of Washington, on Monday, January 12th, 18.35, \ “Benjamin F. Butler, Attorney-General of the United States, was appointed chairman, and Richard Peters, reporter of the court, was appointed secretary. “ On motion of Mr. Jones, the following resolutions were unanimously adopted : “The Hon. William Johnson, senior associate justice of the supreme court of the United States, having departed this life during the late .vacation of the court, and the members of this bar, and the officers of the court, entertaining the most grateful and lively remembrance of his eminent talents and learning, and of his many and shining virtues as a judge and a man, and lamenting his loss with a sincerity and depth of feeling corresponding with their esteem for the public and private character of the deceased, have— “Resolved, that, as a token of their sentiments, they will wear the usual badge of mourning during the residue of the term. “ Resolved, that the chairman .communicate to the bereaved family of the deceased, the esteem and consideration in which the virtues and talents of Mr. Justice Johnson were held by the bar and officers of this court, and assure them of their sincere sympathy in the loss which they, the court, and the country, have sustained in his death. “ On motion of Mr. Ogden : “ Resolved, that the Attorney-General, in behalf of the bar and officers of this court, do respectfully move the court, that the foregoing resolutions may be entered on the minutes of the court ” [iii] JUDGES OF THE SUPREME COURT OF THE UNITED STATES, DURING THE PERIOD OF THESE REPORTS. Hon. John Marshall, Chief Justice. “ Joseph Story, t( Smith Thompson, “ John McLean, “ Henry Baldwin, “ James M. Wayne, I ► Associate Justices. Benjamin F. Butler, Esq., Attorney-General. The Hon. Gabriel Duvall resigned his office of Justice of the Supreme Court, early in January 1835. Mr. Justice Wayne was appointed on the 9th day of January 1835, in the place of Mr. Justice Johnson, deceased, and took his seat on the 14th day of January 1835. M A TABLE OF THE NAMES OF THE CASES REPORTED IN THIS VOLUME. The References are to the Star *pages. A *PAGE Adams, New York Life and Fire Insurance Co. v........... 571 Adams, New York Life and Fire Insurance Co v............ 573 B Bailey, United States v......238 Bailey, United States v...... 267 Ballon, Hiriart v........... 156 Bank of Alexandria v. Swann.. 33 Bank of Georgia v. Higginbottom 48 Bank of United States v. Wag-gener....................... 378 Beard v. Rowan.............. 301 Beers v. Haughton........... 329 Birth, Greenleaf v.......... 292 Boyce’s Executors v. Grundy... 275 Bradley v. Steam-Packet Company...................... 107 Brig Burdett, United States v.. 682 Briscoe v. Commonwealth Bank of Kentucky.............. 85 Brown v. Swann................ 1 C Caldwell v. Carrington’s Heirs.. 86 Carrington’s Heirs, Caldwell v.. 86 Chapman, Fenwick v.......... 461 ♦page Chesapeake and Ohio Canal Co. v. Knapp................. 541 Chouteau’s Heirs v.United States 137 Chouteau’s Heirs v.United States 147 City of New Orleans v. De Armas 224 City of New York v. Miln. 85 Clarke, United States v... 168 Commonwealth Bank of Ken- tucky, Briscoe v............ 85 Coulson v. Walton........... 62 D D’Arbel, Urtetiqui v....... 692 De Armas, City of New Or- leans v.................... 224 Delassus v. United States... 117 E Ex parte Milburn........... 704 F Fenwick v. Chapman......... 461 Field v. United States...... 182 G Greenleaf v. Birth......... 292 Grundy, Boyce’s Executors v... 275 [vii] v iii CASES REPORTED. H *PAGE Harrison v. Nixon.......... 483 Haughton, Beers v.......... 329 Higginbottom, Bank of Georgia v. 48 Hiriart v. Ballon.......... 156 Huertas, United States v.... 171 Hull, Owings v............. 607 K King’s Heirs v. Thompson.... 204 Knapp, Chesapeake and Ohio Canal Co. v................. 541 L Life and Fire Insurance Co. v. Adams....................... 571 Life and Fire Insurance Co. v. Adams....................... 573 Livingston v. Story........ 632 Lloyd, Scott v........;.... 418 M Mayor, &c. of New Orleans v. De Armas................ 224 Mayor, &c. of New York v. Miln 85 Milburn, Ex parte.......... 704 Miln, Mayor, &c. of New York v. 85 Mitchel v. United States....'.. 711 N Nixon, Harrison v.......... 483 Nourse, United States v..... 8 O Owings v. Hull............. 607 P Patterson, Winn v.......... 663 Piatt v. Vattier........... 405 R *PAGE Robeson, United States v..... 319 Rowan, Beard v............... 301 S Scott v. Lloyd............... 418 Smith v. Trabue’s Heirs...... 4 Steam-Packet Co., Bradley v... 107 Story, Livingston v.......... 632 Swann, Bank of Alexandria v.. 33 Swann, Brown v................. 1 T Tarver v. Tarver............. 174 Thompson, King’s Heirs v..... 204 Trabue’s Heirs, Smith v...... 4 U United States v. Bailey...... 238 United States v. Bailey...... 267 United States v. Brig Burdett.. 682 United States,Chouteau’s Heirs v. 137 United States,Chouteau’s Heirs v. 147 United States v. Clarke...... 168 United States, Delassus v.... 117 United States, Field v...... 182 United States v. Huertas..... 171 United States, Mitchel v..... 711 United States v. Nourse...... 8 United States v. Robeson..... 319 Urtetiqui v. D’Arbel......... 692 V Vattier, Piatt v............. 405 W Waggener, Bank of United States v........ à........... 378 Walton, Coulson v............. 26 Winn v. Patterson............ 663 A TABLE OF THE CASES CITED IN THIS VOLUME. The Eeferences are to the Star * pages. A *PAGH Adams v. Meyrick................1 Eq. Cas. Abr. 271............. 471 Aggas v. Pickerell..............3 Atk. 222............... .409, 415 Ancaster v. Mayer...............1 Bro. C. C. 454................ 471 Armstrong v. Campbell...........3 Yerg. 201...................70, 82 Armstrong v. Lear...............12 Wheat. 175.................. 179 Astley v. Reynolds..............2 Str. 915.................... 390 B Backhouse v. Patton.............5 Pet. 160...................... 522 Bamfield «. Wyndham.............Prec. Ch. 101................... 471 Bank of Columbia v. Lawrence... 1 Pet. 583....,.................. 46 Bank of Columbia v. Patterson... .7 Cr. 299..................551, 566 Bank of Mount Pleasant v. Pollock. 1 Ohio 35.................... 351 Barbon v. Searle................1 Vern. 416, 418................ 779 Barclay v. Howell...............6 Pet. 498...................... 232 Barker v. Vansommer.............1 Bro. C. C. 149................ 390 Barnard v. Langly...............Toth. 117....................... 390 Barr v. Gratz...................4 Wheat. 213..................... 72 Bayley v. Gouldsmith............Peake 56........................ 567 Beckford v. Close...............‘.4 Ves. 476.................... 416 Beckford v. Wade................17 Ves. 86...................... 417 Bedingfield v. Ashley...........Cro. Eliz. 741...............388, 399 Bentham v. Wiltshire............4 Madd. 44................... 477 Birt v. Barlow..................1 Doug. 171................... 677 Black v. Cord...................2 Har. & Gill 100............. 210 Blennerhassett v. Day..........1 B. & B. 104.................. 417 Boggs v. Teackle................5 Binn. 332................... 358 X CASES CITED. *PAGB Bond v. Hendricks...............1 A. K. Marsh. 398.............. 97 Bonney v. Ridgard...............1 Cox 145...................... 417 Bosanquett v. Dashwood..........Cas. temp. Talb. 38............ 390 Boswell v. Clarkson.............1 J. J. Marsh. 47.......... 391 Boyle v. Zacharie...............6 Pet. 643............366—7, 374, 376 Bradstreet, Ex parte............6 Pet. 774.................... 577 Bradstreet, Ex parte............7 Pet. 635..................... 580 Brooke v. White.................4 Bos. & Pul. 330.............. 567 Burton v. Knowlton..............3 Ves. 107..................... 471 Button v. Downham...............Cro. Eliz. 642................. 389 C Cairnes v. Bleecker........... .12 Johns. 300.................. 621 Carnea! v. Banks................10 Wheat. 181, 189..........282, 512 Carroll v. Lee..................3 Gill & Johns. 509........... 286 Cheetham v. Lewis...............2 Johns. 104.................. 370 Chesterfield v. Janssen.........1 Atk. 352; 1 Wils. 286........ 451 Cholmondeley v. Clinton.........2 Jac. & Walk. 1............. 417 Cincinnati«. White..............6 Pet. 431..................... 232 Clarke v. Carrington............7 Cr. 308, 322................. 621 Clarkson v. Garland.............1 Leigh 147................... 457 Clay v. Smith...................3 Pet. 411..................... 590 Cocke v. McGinnis...............Mart. & Yerg. 361............... 69 Colman v. Sarrel................1 Ves. jr. 50..........?....... 213 Collins v. Blantern..............2 Wils. 351................... 679 Conard v. Atlantic Ins. Co......1 Pet. 386...............53, 193, 197 Conway v. Alexander.............7 Cr. 236.................... 435 Cranston v. Johnson.............3 Ves. 170.................. 286 D Danforth v. Wear................9 Wheat. 673................... 733 Davidson v. Taylor..............12 Wheat. 604................. 369 Davis v. Gardiner...............2 P. Wms. 189................. 470 Davis v. Packard................8 Pet. 324................... 781 Découché v. Savatier............3 Johns. Ch. 190............... 417 Delano v. Jopling...............1 Litt. 417................... 97 Deloraine v. Browne......... .. .3 Bro. C. C. 632............415-16 Dimond v. Billingslea.. ........2 Har. & Gill 264.............. 621 Doe v. Gooch....................3 B. & Aid. 664................ 400 Donnelly v. Dunn................1 Bos. & Pul. 448............. 370 Douglass v. McChesney...........2 Rand, 109.................... 458 Drew v. Power...........:.......1 Sch. & Lef. 182.............. 453 Dunlap v. Gibbs.................4 Yerg. 94...................... 67 Duvall v. Craig.................2 Wheat. 55.................... 114 E Elmendorf v. Taylor.............10 Wheat. 168................ 410 Elsworth’s Case.................2 East P. C. 986, 988.......... 271 Estill v. Clay..................2 A. K. Marsh. 500.............. 97 CASES CITED. xi F *PAGB Farrar v. Nightingale..........2 Esp. 639..................... 567 Fenwick v. Forrest.............5 Har. & Johns. 415............ 621 Field v. United States.........9 Pet. 182..................... 587 Fitzroy v. Gwillim.............1 T. R. 153.................... 390 Fleckner v. Bank of United States. 8 Wheat. 338, 351.......... 399 Flotte v. Aubert...............2 Orleans T. R. 329............ 618 Floyer v. Edwards..............Cowp. 112...................399, 400 Forsyth v. Jervis..............1 Stark. 437................... 567 Foster’s Administrators v. Foster. .2 Binn. 4................. 567 Foster V. Hodgson..............19 Ves. 180.................... 416 Freeland v. Heron..............7 Cr. 147, 151................. 621 Freeman v. Brown...............7 T. B. Monr. 263............. 391 Fuller’s Case..................4 Leon. 208.................432, 448 G Gaither’s Case.................3 Yerg. 208..................... 67 Gendall v. Pontigny............1 Stark. 198.................. 567 Gibbons v. Ogden...............6 Wheat. 448.................. 164 Gibson v. Fristoe..............1 Call 62..................... 456 Godolphin v. Pennock...........2 Ves. 270.................... 470 Greenwood v.^Naylor............1 McCord 414.................... 55 Gregor v. Molesworth...........2 Ves. 109............*........ 415 H Haggard v. Mayfield.............5 Hayw. 121................66, 69, 82 Hall v. Campbell...............Cowp. 213...................... 749 Hamilton v. Russell............1 Cr. 309...................... 53 Hammett v. Yea.................1 Bos. & Pul. 144............. 400 Hardham v. Roberts.............1 Vern. 132................... 213 Harding w. Handy...............11-Wheat. 103, 120.....214, 512, 514, 516, 537 Hardy v. Reeves................4 Ves. 479..................... 417 Harrington v. Smith............1 Bro. P. C. 95................ 417 Harrison v. Allen..............9 Moore 28.................... 567 Hartford Bank v. Stedman.......3 Conn. 495 .................... 46 Hawker v. Buckland.............2 Vern. 106.................... 477 Helps v. Winterbottom..........2 B. & Ad. 431................. 567 Hendricks v. Robinson..........2 Johns. Ch. 484............... 281 Heron v. Granger...............5 Esp. 269..................... 567 Higginson v. Mein..............4 Cr. 415, 420................. 410 Hinde v. Longworth.............11 Wheat. 199................212-13 Hiriart v. Ballon..............9 Pet. 156..................... 658 Hislop v. Clarke...............14 Johns. 458.................. 680 Hooper v. Bryant...............3 Yerg. 9................t. .65-6, 68 Houston v. Moore...............3 Wheat. 433................... 244 Hovenden v. Annesley...........2 Sch. & Lef. 637-8............ 416 Hughes v. Edwards...........\9 Wheat. 489, 497.............412, 417 xii CASES CITED. I *PAGB Ingram v. Shirley.............1 Stark. 185................... 567 Irnham v. Child...............1 Bro. C. C. 93................ 453 J James v. Cotton............... .2 Bing. 266.................. 567 Johnson v. McIntosh...........8 Wheat. 571, 604.............. 746 Jones v. Selby................Free. Ch. 288................ 471 Jordaine v. Lashbrooke........7 T. R. 601.................... 436 K Kane v. Bloodgood.............7 Johns. Ch. 93............... 417 Kidney v. Coussmaker..........1 Ves. jr. 436............... 469 King v. Drury.................2 Lev. 7...................... 447 King v. Lyon..................Russ. & Ry. 255.............. 271 King v. Maddox................2 Russ, on Crimes 458........ 271 L Lanoy v. Athol................2 Atk. 446................... 474 Lawley v. Hooper..............3 Atk. 278..............A....... 450 Lenox v. Roberts..............2 Wheat. 373................41, 44-5 Lewis’s Case..................Forster 117.................... 272 Lewis v. Hickman..............2 Overt. 317..............64-6, 69, 81 Life Insurance Co. v. Wilson..8 Pet. 291..................... 576 Lowe v. Waller................2 Doug. 736..................390, 456 Ludlow v. McCartney...........2 Bro. P. C. 108............... 779 M McCall v. McCall..............3 Day 402...................... 213 Maleverer v. Redshaw..........1 Mod. 35...................... 679 Mannin v. Partridge...........14 East 599.................358, 372 Marsh v. Martindale...........3 Bos. & Pul. 153............. 454 Mason v. Haile................12 Wheat. 370...............353, 359 Massa v. Dauling..............2 Str. 1243.................. 390 Mathews v. Lewis..............1 Anstr. 7..................... 390 Matthew o. Hanbury............2 Vern. 187 ................... 503 Miller v. McIntyre............6 Pet. 61, 64............. 416-17 Mills v. Bank of United States... .11 Wheat. 431............42, 47 Milnes v. Slater..............8 Ves. 305 .................... 471 Minturn v. Seymour............4 Johns. Ch. 497............... 213 Mogg v. Hodges................2 Ves. 53...................... 474 Moore v. Farrow...............1 A. K. Marsh. 41............... 97 Moses v. Macferlan............2 Burr. 1008................... 551 Mumma v. Potomac Co...........8 Pet. 281................... 494 Murray v. Harding.............2 W. Bl. 859................... 400 CASES CITED. xiii N ♦page Negro George v. Corse..........2 Har. & Gill 1..................... 476 Newman v. Johnson..............1 Vern. 45........................ 469 Norton v. Simmes...............Hob. 14............................. 679 O Ogden v. Saunders..............12 Wheat. 213. .359, 364-5, 372, 374,376 Olcott v. Lilly................4 Johns. 407...............358, 370 Omealy v. Newell...............8 East 364................. 247, 256 Osgood v. Strode...............2 P. Wms. 242.................... 210 Owings v. Hull.................9 Pet. 607......................... 732 Owings v. Norwood..............5 Cr. 344........................... 230 P Page v. Lloyd..................5 Pet. 504.......................... 522 Parks’s Case...................2 East P. C. 963.................... 272 Parsons v. Bedford.......... .3 Pet. 433, 444............641, 657 Patterson v. Jenks.............2 Pet. 216..................670, 733 Patterson v. Winn..............11 Wheat. 380....................... 670 Peck v. Wheaton................ .Mart. & Yerg. 360........ 65, 69, 82 Penn v. Baltimore..............1 Ves. sen. 454 .................... 286 Percheman if. United States....7 Pet. 51........................... 134 Perkins v. Hart................11 Wheat. 237....................... 551 Phipps v. Annesley.............2 Atk. 58........................... 471 Polk v. Wendall................9 Cr. 99............................ 670 Popham v. Bampfield............1 Vern. 344......................... 779 Proof v. Hines.......*.........Cas. temp. Talb. Ill................ 390 Provost v. Gratz...............6 Wheat. 481........................ 417 R Read v. Chapman................Pet. C. C. 404...................... 347 Reade v. Livingston............3 Johns. Ch. 497.................... 211 Renner v. Bank of Columbia.....9 Wheat. 584................514, 537 Richards v. Brown..............Cowp. 770................. 452 Ridgeway v. Ogden..............4 W. C. C. 139............ 211 Ridgeway v. Underwood..........4 W. C. C. 129............ 211 Riggs v. Lindsay...............7 Cr. 500................. 567 Roberts v. Trenayne............Cro. Jac. 507...........389, 392, 400 Robinson v. Campbell...........3 Wheat. 212, 221... .337, 641, 655, 657 Robson v. Godfrey..............Holt 236.................. 567 Rodes v. Bush...............-... .5 T. B. Monr. 477................ 391 Rogers v. Bynum................9 Mart. 82................ 323 Rushton v. Aspinall............2 Doug. 679............... 45 S Santa Maria, The............... .10 Wheat. 431..'......... 282, 290 Scott v. Nesbitt...............2 Bro. C. C. 641.................... 390 xiv CASES CITED. *PAOR Sexton ö. Wheaton.............8 Wheat. 229, 241-4.........211, 214 Shaw v. Robbins...............12 Wheat. 369 n...........373—4, 376 Shelby v. Guy.................11 Wheat. 361................ 411 Sims v. Irvine................3 Dall. 427, 456............... 747 Slacum v. Pomeroy.............6' Cr. 221.............. .... 45 Smith v. Clay.................3 Bro. C. C. 640............... 416 Smith v. Hickman..............Cooke 330...............64, 68-80, 82 Smith v. Union Bank...........5 Pet. 518, 523.........518, 520, 522 Stapleton v Colvile...........Cas. temp. Talb. 202........... 471 State v. Laval................4 McCord 342.................... 55 Solarte v. Melville...........7 B. & C. 431.................. 400 South Sea Co. v. Wymondsell...3 P. Wms. 143, 145 .......... 416 Sykes v. Summerel.............2 Bro. (Pa.) 227............... 567 Symonds v. Cockerill..........Noy 151 ; Brownl. 180......... 449 T Taverner’s Case...............Dyer 322....................... 271 Taylor v. Bell................2 Vern. 170.................... 390 Thompson v. Attfield..........1 Vern. 40..................... 213 Towers v. Barrett.............1 T. R. 133.................... 565 Trimmer v. Bayne..............9 Ves. 209..................... 474 Trott v. Vernon...............2 Vern. 708 ................... 470 Turner v. Turner..............1 Jac. & Walk. 37.............. 284 Turnpike Co. v. Watson........1 Rawle 330..........,......... 323 Twyne’s Case..................3 Co. 80........................ 53 U United States v. Arredondo....6 Pet. 691.........22, 134, 236, 742-3 United States v. Clarke.......8 Pet. 436.................... 134 United States v. Halstead...... .10 Wheat. 51....359-61, 368, 372-3 United States v. Hooe.........3 Cr. 73....................... 53 United States v. Howland......4 Wheat. 108........... 337, 641, 656-7 United States v. Lawrence.....3 Dall. 42..................... 588 United States v. Turner........7 Pet. 132................... 272 United States v. Wiltberger...5 Wheat. 95.................... 271 United States Bank v. Carneale.. .2 Pet. 551.................. 44 United States Bank v. Dandridge. 12 Wheat. 64................ 551 United States Bank v. Owens.... .2 Pet. 527, 529, 538.;385, 387, 399, 400, 403 United States Bank v. Richie..8 Pet. 128...................... 24 United States Bank v. Waggener. .9 Pet. 378.................. 433 V Van Horn v. Fonda.............5 Johns. Ch. 388............... 323 W Wainwright v. Bedlows.........Prec. Ch. 451.................. 471 Walton v. Shelly..............1 T. R.-296................ 436 CASES CITED. xv *PAQK Waring v. Cunliffe.............1 Ves. jr. 99................ 284 Watkins, Ex parte..............3 Pet. 201................ 16 Wayman v. Southard.............10 Wheat. 1... .336-7, 359-61, 368, 372 Webb v. Jones..................2 Bro. C. C. 60............... 471 Weston v. Charleston...........2 Pet. 449................. 163 Willison v. Watkins............3 Pet. 43....................412, 417 Wilson, Ex parte...............6 Cr. 52......................... 15 Winn v. Patterson...............9 Pet. 663..................... 733 Woodhull v. Wagner.............Bald. 296....................... 373 Y Young v. Grundy................6 Cr. 51........................ 164 RULES AND ORDERS OF THE SUPREME COURT OF THE UNITED STATES. RULE, No. 43. 1. In all cases where a writ of error or an appeal shall be brought to this court from any judgment or decree rendered thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appellant, as the case may be, to docket the cause and file the record thereof with the clerk of this court, within the first six days of the term. If he shall fail so to do, the defendant in error or appellee, as the case may be, may docket the cause and file a copy of the record with the clerk, in which case it shall stand for argument at the term, or, at his option, he may have the cause docketed and dismissed, upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the cause, and certifying that such writ of error or appeal had been duly sued out and allowed. 2. No writ of error or appeal shall be docketed, on the record of the cause filed by the plaintiff in error or appellant, after the first six days of the term, except upon the terms that the cause shall stand for argument during the term, or be continued, at the option of the defendant in error or appellee. But in no case shall the plaintiff in error or appellant be entitled to docket the cause and file the record, after the same shall have been docketed and dismissed in the manner provided for in the preceding rule, unless by order of the court, or with the consent of the opposite party. 3. In all cases where the cause shall not be docketed, and the record filed with the clerk, by either party, until after thirty days from the commencement of the terra, the cause shall stand continued until the next term. There having been an appointment made of an associate justice of the the Supreme Court during the present term, it is ordered by the court, that the following allotment be made of the chief justice and the associate justices of the supreme court among the circuits, agreeable to the act of congress in such case made and provided ; and that such allotment be entered of record, to wit : For the first circuit, Hon. Joseph Story. “ second circuit, Hon. Smith Thompson. “ third circuit, Hon. Henry Baldwin. “ fourth circuit, none (there being a vacancy). “ fifth circuit, Hon. John Marshall, Chief Justice. “ sixth circuit, Hon. James M. Wayne. “ seventh circuit, Hon. John McLean. [xvi] CASES DETERMINED IN THE SUPREME COURT OF THE UKITED STATES. JANUARY TERM, 1835. Eliza Brown, Appellant, v. Frances Swann, Administratrix of William T. Swann, deceased, and Richard B. Alexander. Final decree. An appeal to the supreme court does not lie from a decree of the circuit court making an injunction perpetual, and leaving some matters of account open for further consideration, upon which the parties went on to take further proof; the decree perpetuating the injunction was not a final decree. Appeal from the Circuit Court of the District of Columbia, and county of Alexandria. lee, for the appellees, moved to dismiss the appeal, the same having been taken before a final decree in the case in the circuit court. The appellees filed their bill in the circuit court, on the 21st of November 1825. An injunction was directed, on the filing of the bill, which was afterwards in part dissolved. '^Subsequently, the injunction was altogether dissolved, and further proceedings being had in the case, the court, on L the 3d day of December 1832, made the following decree. “ And now, here, at this day, to wit, at a court continued and held for the district and county aforesaid, the 3d day of December 1832, came the parties aforesaid, by their solicitors, and this cause having been set for hearing and decree on the bills, answers, demurrer of defendant, exhibits and depositions, as Heretofore stated in the proceedings herein, and now coming on to be heard, it is the opinion of the court, that the law on the demurrer is for the complainant. It is, therefore, by the court adjudged and decreed, that the demurrer be overruled. It is further the opinion of the court, that the complainant has fully sustained the charge of usury made by her, in her bill against the defendant, in relation to the loan therein stated ; for a part of which loan the judgment at law, heretofore enjoined by the order of this 9 Pet.—1 1 2 SUPREME COURT [Jan’y Brown v. Swann. court in this cause, was obtained ; and that under the provisions of the third section of the statute to amend the act entitled an act against usury, the defendant is entitled to receive no more than the principal sum by her lent, and is liable to the payment of the costs of this suit. And it appearing to the court, as well from the admissions of the defendant, as from the proof made by the complainant, that of the sum of $2300, loaned by the defendant, under the said usurious contract, the complainant and her intestate have paid the sum of $1350.30, leaving of the principal money loaned the sum of $949.70 unpaid ; and the court not being satisfied as to the payment of the further sum of $50, for which the complainant claims credit, it is thereupon, by the court, adjudged and decreed, that the injunction heretofore awarded the complainant be perpetual, except as to the said sum of $949.70, of which sum the defendant is at liberty to proceed under her judgment, for the sum of $899.70 ; and On the complainant’s motion, for reasons appearing to the court, this cause is continued for further consideration as to the said sum of $50, part of the credit claimed by the complainant. .From which decree, the defendant prays an appeal to the supreme court of the United States, which is granted, on her giving bond and security to be approved by one of the judges of this court.” * , *The parties, after this decree and appeal, went on to take J depositions under the authority of the circuit court, which were filed in that court; and on the 18th of May 1813, the circuit court made the following decree. “ And afterwards, to wit, at a United States circuit court of the district of Columbia, continued and held for the county aforesaid, the 18th day of May 1833, the deposition of Richard B. Alexander and Alexander Moore, taken under a commission issued in this case, having been returned and filed, and this cause now coming on for final hearing as to the credit claimed by the complainant for the sum of $50, her right to which was reserved for consideration by the terms of the decree heretofore pronounced ; and it being the opinion of the court, that the complainant is, under the proof offered, entitled to the said credit; it is now here by the court decreed, that the injunction heretofore awarded the complainant be perpetual, except as to the sum of $899.70, as to which the defendant is at liberty to proceed on her judgment at law ; and it is further decreed, that the defendant do pay to the complainant her costs in this suit, to be taxed by the clerk.” Jones, contra. Marshall, Ch. J., delivered the opinion of the court, dismissing the appeal, with costs ; because the appeal was granted before there was a final decree in the case. On appeal from the circuit court of the United States for the district of Columbia, holden in and for the county of Alexandria: On consideration of the motion made in this cause yesterday, by Mr. Edmund J. Lee, of counsel for the appellees, to dismiss this cause, because the appeal was granted before there was a final decree rendered in the court below, and of the arguments of counsel thereupon, had as well for the appellant as for the appellees ; it is now here ordered, adjudged and decreed by this court, that this appeal be and the same is hereby dismissed, with costs. 1835] OF THE UNITED STATES. *4 *The Lessee of Samuel Smith, Plaintiff in error, v. Robert Tbabue’s Heirs, by James Trabue, their next freind. Final judgment. The judiciary act authorizes the supreme court to issue writs of error to bring up any final judgment or decree in a civil action or suit in equity, depending in the circuit court &c.; but, a judgment awarding a writ of restitution, in an action of ejectment, where, in the execution of a writ of habere facias possessionem, the sheriff had improperly turned a person out of possession, is not a final judgment in a civil action; it is no more than the action of the court on its own process, which is submitted to its own discretion. This court takes no jurisdiction, in such a case. Error to the Circuit Court of Kentucky. In the circuit court, the defendants in error filed a petition, in May 1830, setting forth that, on the demise of Richard Smith, an action of ejectment was instituted in the circuit court, against Richard Finn, with notice to Hiram Bryant and William Bryant and others ; that the Bryants were' tenants to the petitioners and to Robert Trabue, who appeared to the ejectment, had his tenants entered as defendants ; and a judgment was rendered at May term 1828, against them. No writ of habere facias possessionem was issued on this judgment ; and at November term 1818, a judgment was rendered against other tenants, and on that judgment, a writ of habere facias possessionem was issued, and the marshal of the district of Kentucky, under this last judgment and writ, turned out of possession, John Evans, who was a tenant of the petitioners, resident on the same place occupied by the Bryants, when the suit was first brought and judgment rendered, and then possessed by the petitioners. The record showed that this writ of habere facias possessionem issued on the 17th November 1829. At May term of the court, in 1830, a motion was made in behalf of the petitioners, and a rule awarded on Smith, the plaintiff in error and defendant in the petition, to show cause why a writ of restitution should not be awarded to them, to restore the possession of the tenements held by their tenants, John Evans and others, taken from them by the marshal, on *the writ of possession mentioned in their petition. The marshal’s return showed, that he had turned John Evans, James McGuire and L William Acres, who were the tenants of the petitioners, out of possession. At May term 1831, the court ordered a writ of restitution to be awarded to the petitioners, the plaintiffs in the motion, to restore them to the possession of the land from which their tenants had been removed by the marshal. To the opinion of the circuit court in overruling objections made by the defendant’s counsel to the objects of the motion, and awarding possession to the plaintiffs, the defendant, now plaintiff in error, excepted, and prosecuted this writ of error. The case was submitted to the court by Allan, on a printed argument for the plaintiffs in error. No counsel appeared for the defendants in error. Upon the point decided by the court, viz., that the award of a writ of possession was not a final judgment, from which a writ of error would lie to this court, it was said : We are aware, that this court only grants relief where the decree or judgment is final, and that mere orders to correct 3 5 SUPREME ,COURT Smith v. Trabue. [Jan’y process do not come within the description of final judgment, because such orders, from their very nature, are within the control of the court, as an order to quash an execution, or to issue one, to correct taxations of costs ; all these, though final in their language, are not so in their nature : but even a judgment correcting an execution may be final, as if the court were to decide, that the execution should be returned by the sheriff, without being levied, and adjudge the judgment satisfied. This would be final, or no remedy would be left but by writ of error against such judgment, erroneously entered. But the order of the court quashing a writ, because of excessive taxation, or because there were valuers appointed, or refusing the writ for any cause in its nature temporary, as the pendency of error, is not final. But if the court refuse a fieri facias, because, in the opinion of the judge, the judgment does not authorize one, or because, in his opinion, he is restrained by final decree; then the judgment is final. Such have been the distinctions observed and practised upon in both Virginia and *6 Kentucky. Indeed, in *both states, where the judgment is for realty, J on which the final process may issue, or the possession be changed, the judgment or decree is held to be final. Test this case by these rules, and see whether the judgment is final or interlocutory. It is a final judgment both for the possession and the costs ; one on which execution may not only issue, but on which execution is ordered, and on which a fieri facias for costs is also ordered. This judgment, though on motion, is more final than if it were an ordinary case of ejectment ; it lasts as long as the record lasts, whereas, the other may expire with the lease ; and need we call to the mind of this court the monstrous evils that must grow out of the practice of permitting ancient judgments and rights to be overturned by these ex parte motions, founded on parol proofs. If this court possess no power to correct, the present case is one of the strongest instances of abuse. Twelve years and more before this motion was made, Samuel Smith had recovered judgments for his land ; under this judgment, by the laws of Kentucky, he had a right to make his personal entry, to sell out, or to tenant it; yet, without process served on him, without process served on the tenant, and without process served on his agent or alienee, strangers to the record, on a tale of their own, from the mouth of one of the defendants in the record, they obtain a judgment and execution for the possession ; which being knit to a former possession, may not only change the right of entry, but destroy the remedy by writ of right. Marshall, Ch. J., delivered the opinion of the court.—This is a writ of error to a judgment of restitution awarded by the court of the United States for the seventh circuit and district of Kentucky, whereby the tenant of the defendants in error was restored to the possession of a tract of land from which he had been improperly removed, under the process of that court. The defendants in error filed their petition in the circuit court, stating that a declaration of ejectment had been brought by John Doe, on the demise of Samuel Smith, and notice served on Hiram and William Bryant, * , the tenants of the petitioners ; *and a judgment was rendered against J them in May term 1818, on which no writ of habere facias possessionem has been issued. In November term 1818, a judgment was rendered 4 1835] OK THE UNITED STATES. t United States v. Nourse. against other tenants, by virtue of which the marshal turned John Evans out of possession ; who, as tenant of the petitioners, resided on the place which had been occupied by the Bryants. A rule to show cause was granted, and on its return, restitution was awarded. To this judgment of restitution, this writ of error is awarded. The judiciary act authorizes this court to issue writs of error to bring up any final judgment or decree in a civil action or suit in equity, depending in the circuit court, &c. This is not a final judgment in a civil action, nor a decree in a court of equity. It is no more than the action of a court on its own process, which is submitted to its own discretion. This court takes no jurisdiction in such a case. It is not, we think, given by the judiciary act. The writ of error is quashed and the suit dismissed, the court having no jurisdiction. In error to the circuit court of the United States for the district of Kentucky.—This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel: On consideration whereof, it is the opinion of this court, that this is not a final judgment in a civil action, nor a decree in a court of equity, but no more than the action of a court on its own process, which is submitted to its own discretion, and that the court cannot take jurisdiction in such a case, it not being given by the judiciary act; and that the writ of error must be quashed and the suit dismissed, the court having no jurisdiction. Whereupon, it is considered, ordered and adjudged by this court, that this writ of error be and the same is hereby dismissed, for the want of jurisdiction. *United States, Plaintiffs in error, v. Joseph Nourse. [ *8 Conclusiveness of former decree. The treasury department of the United States, on the 14th of July 1829, issued a warrant of distress, directed to the marshal of the' district of Columbia, commanding him to levy and collect, by distress and sale of his goods and chattels, a sum of money alleged to be due to the United States, on a treasury transcript, by Joseph Nourse, late register of the treasury; this warrant was issued in pursuance of the 3d and 4th sections of the act of May 15th, 1820, “ providing for the better organization of the treasury department.” Under the provisions of the 4th section of the act, Mr. Nourse obtained an injunction from the chief justice of the district of Columbia, to stay all further proceedings on the said warrant; the bill presented by Mr. Nourse to the chief justice of the district of Columbia, asserted that the United States were indebted to him for compensation for extra services he had rendered to the United States, in a sum exceeding the amount claimed by the United States: which claim was denied in the answer filed by the district-attorney of the United States, both as to the legality and the amount of the claim. The court determined, that Mr. Joseph Nourse was entitled to compensation for the extra services he had rendered to the government, in the agencies mentioned in the bill; and appointed auditors to ascertain the value of his services and compensation, and to report thereon without delay; the report of the auditors allowed to the complainant a commission of two and a half per cent., on the sum of $943,308.83, disbursed by him in the several agencies in which he had been employed, leaving a balance due to him from the United States; the report was confirmed, a/id the injunction made perpetual. The United States then instituted their suit against Joseph Nourse, in the circuit court for the district of Columbia, in the county of Washington, on an account authenticated according to law, by the proper accounting officers, being the same account, and claiming the same amount 5 8 SUPREME COURT United States v. Nourse. [Jan’y as in the warrant of distress, and on which the decree of the chief justice was pronounced. It was agreed, that the defendant should have the benefit of the proceedings in that case, as if the same had been pleaded and given in evidence; the circuit court adjudged the proceedings in the former action a bar to this action. It is a rule, to which no exception is recollected, that the judgment of a court of competent jurisdiction, while unreversed, concludes the subject-matter, as between the same parties; they cannot again bring it into litigation. An execution is the end of the law ; it gives the successful party the fruits of his judgment ; and the distress-warrant is a most effective execution; it may act on the body and estate of the individual against whom it is directed. It would excite some surprise, if, in a government of laws and of principle, furnished with a department whose appropriate duty is to decide questions of right, not only between individuals, but between the government and individuals, a ministerial officer might, at his discretion, J issue this powerful *process, and levy on the person, lands and chattels of the debtor, any sum he might believe to be due, leaving to that debtor no remedy, no appeal to the law of his country, if he should believe the claim to be unjust; but this anomaly does not exist— this imputation cannot be cast on the legislature of the United States. Under the act of congress, the chief justice of the district of Columbia had full jurisdiction over the case. After a reference to auditors, according to the course of courts of chancery, in matters of ac. count, a final decree was pronounced against the United States, and a perpetual injunction awarded; this decree is now in full force, and was in force when this suit was instituted. The act of congress gave jurisdiction in the specific case to the district judge; be might have enjoined - the whole or a part of the warrant; his decree might have been for or against the United States, for the whole or a part of the claim; on the sum which he found to be due, he is directed to assess the lawful interest; he may add such damages as, with the interest, shall not exceed the rate of ten per cent, per annum on the principal sum. Had the district judge finally enjoined a part of the sum claimed by the United States, and decreed that the residue should be paid with interest, all would perceive the unfitness of asserting a claim in a new action, to that portion of the debt which had been enjoined by the decree of the court; and, yet, between the obligation of a decree against the whole claim, and against a part of it, no distinction is perceived. The relief which is given by the act of congress, on which the warrant of distress may be issued, by application to any district judge of the United States, for an injunction to stay proceedings on such warrant, is not confined to an officer employed in the civil, military or naval departments of the government, to disburse the public money appropriated for the service of those departments respectively, who shall fail render his accounts, or pay over, in the manner required by law, any sum of money remaining in the hands of such officer. When the legislature turns its attention to the individual against whom the warrant may issue, the language of the law is immediately changed ; the word person is substituted for officer; and it declares, “ that if any person should consider himself aggrieved by any warrant issued under this act, he may prefer a bill of complaint, &c.,” and thereupon, the judge may grant an injunction, &c. The character of the individual against whom the warrant may be issued is entirely disregarded by that part of the law ; be he whom he may, an officer, or not an officer, a debtor, or not a debtor ; if the warrant be levied on his person or property, he is permitted to appeal to the laws of his country, and to bring his case before the district judge, to be adjudicated by him.1 The district judge had full jurisdiction over the case, and his decision is final; the judgment on the warrant of distress, and the proceedings upon it are, consequently, a bar to any subsequent action for the same cause. Error to the Circuit Court of the District of Columbia, for the county of Washington. This was an action of assumpsit, instituted by the United * _ *States, in the circuit court, on an account stated at the treasury of the 10J United States, against “ Joseph Nourse, late register of the treasury of the United States.” The account was dated “ auditor’s office, 28th of 1 s. p. United States v. Cox, 11 Pet. 162. 1835] OF THE UNITED STATES. 10 United States v. Nourse. July J 829,” showing a balance in favor of the plaintiffs, of that day, of $11,769.13, and was duly and regularly certified, according to the provisions of the acts of congress, by the officers of the treasury. The defendant pleaded non assumpsit. The cause was submitted to the circuit court, on an agreement of the parties, stating that the suit was brought upon a transcript from the treasury, which was annexed to a record in a former proceeding, originating in the district court of the district of Columbia, and brought before the supreme court by appeal. It was also agreed, that the defendant should have the benefit of the proceedings in that case, as if the same had been pleaded, or as if given in evidence upon the trial. That upon this statement, judgment should be given, as on a case agreed, and that either party should be at liberty to refer to the printed record in the case of the United States n. Nourse, as if the same were fully incorporated in the record. (See 6 Pet. 470). The circuit court gave judgment for the defendant, and the United States prosecuted this writ of error. The case was argued by Butler, Attorney-General, for the plaintiffs in error ; and by Coxe, for the defendant. For the United States, the Attorney-General said, that the only question in the case was, whether the proceedings against the defendant, under the warrant of distress, and the decision of the district judge in that case, were conclusive, and a bar to further action by the United States. The court will examine particularly the case in 6 Pet. 470. He contended, that the whole object of the act of congress of 1820 (3 U. S. Stat. 592), in giving to a public debtor, “ an officer ” of the United States, who had received public money, a right to apply to a district judge of the United States, when a warrant of distress was issued against him, was, to ascertain whether the United States were entitled to the summary process of a distress-warrant to which they had *resorted. This construction of the act will regulate _ the case before the court. An examination of the third section of the L act (Ibid. 594), will fully maintain, that if the United States do not think proper to avail themselves of that act, they may proceed against their debtors as in other cases. It is admitted by the plaintiff in error, that if this court had decided that the proceedings in the former cause were judicial, they would be conclusive. But the contrary has been the decision ; and they have be§n held not to be judicial in their nature. The true view of the law is, that in cases where it is perfectly clear, on the books of the treasury, that there is indebtedness by a public officer for public money received by him, the proceedings by distress-warrant may be resorted to; and if the party submits to it, there is an end of the matter. But if he thinks proper to apply to the district judge, and satisfies him, the judge may restrain the United States from proceeding further on the execution. Afterwards, the United States may sue for the debt claimed by them, in the usual form, and as if the distress warrant had not issued. By this construction of the law, both .the United States, and the defendant in the suit, have secured the right of a trial by a jury ; while, by a different version of the law, this right is entirely taken away. 7 11 SUPREME COURT [Jan’y \ United States v. Nourse. But supposing the proceeding, in a proper case, and one which the law was intended to comprehend, may be final; the case set up in bar to this suit was not such a case. It does not appear, that the person against whom the distress-warrant issued, was “ an officer,” within the act of 1820. The general rules as to the conclusivenesS of judicial proceedings are perfectly settled. No one is to be twice vexed for the same matter, and former proceedings are a complete bar to all subsequent actions for the same cause of action ; and may be pleaded and given in evidence as an estoppel. This case may stand for the consideration of the court, as if the former proceedings had been regularly pleaded in bar. When, in cases of such a character, or resting on the plea of former proceedings, it appears, that the merits have not been decided, as in causes of “nonsuit’’and “ retraxit” the matters may be examined and decided upon a subsequent suit. Stark. Evid. part 2, 91 P- 198, and cases referred to. *It must distinctly appear that the J merits were examined. 3 Wend. 27, 33 ; 8 Ibid. 9. In the bill filed by the defendant in the case in 6 Peters, Mr. Nourse took the ground, that the money charged to him in the treasury transcript, had not been received by him as “ an officer of the treasury,” but as a mere “agent” of that department. He claimed in his bill that the term “officer,” in the act of congress, was applicable only to those who, in such a capacity, received the money charged to him, and which formed the items of the account. 6 Pet. 405. The other matters in the bill alleged that nothing was due to the United States, but that a balance was due to the complainant. Thus, it appears, that one of the material grounds for the application made to the district judge, was, that the money was not received by Mr. Nourse, as an “ officer.” In the case of Randolph,(a) which came before (a) Circuit Court of the United States for the Eastern District of Virginia, December 21st, 1833. Present, Marshall, Chief Justice, and Barbour, District Judge. Ex parte Robert B. Randolph.1 Barbour, J.—This is a habeas corpus, issued by this court, upon the application of Robert B. Randolph, alleging that he was imprisoned by the marshal of the eastern district of Virginia, without lawful authority. The marshal returns as the cause of the retainer of the party, a warrant of distress, issued by the solicitor of the treasury of the United States, against Randolph, for a sum of money stated in the warrant to be due from him to the United States, and which he has failed to pay, in the manner and at the time required by law; which warrant was issued under the third section of the act of the 15th of May 1820, concerning the treasury department. From the warrant, and the account annexed to it, and referred to, as part of it, it appears, that the sum claimed from the party, is claimed as being due from him, a lieutenant in the navy, as acting purser, on board the frigate Constitution, for his transactions in that character, in the year 1828. It appears, from another document produced by the party, duly authenticated by the fourth auditor, and sanctioned by the comptroller, that Randolph had, in October in 1828, settled his account as acting purser on board the Constitution; but, notwithstanding this previous settlement, the account on which the warrant of distress was issued, under which the party is imprisoned, is one stated at the treasury of the United States, in February 1833, against him, as late acting purser of the frigate Constitution, for the same period embraced in the account above mentioned • to have been settled in October 1828; the present fourth auditor of the treasury having opened the former account, and restated it, so as to produce the result 1 2 Brock. 448. 1835] OF THE UNITED SPATES. United States v. Nourse. *13 the chief justice of this court, *and the district judge of the eastern district of Virginia, in the circuit court of that district, it was decided, that it must appear in the account for which a distress-warrant shall issue, stated in the account of February 1833, before mentioned, upon the ground, as appears from the face of this last account, of the subsequent discovery of errors and omissions, since the settlement of that of 1828. Upon this state of facts, the party’s counsel have argued, that he is entitled to be discharged; and in the course of the argument, have brought into discussion, many and vaidous points, the first of which is of the gravest import; it calls in question directly, the constitutionality of the act of congress under which this proceeding is had. The decision of a question of this sort, is certainly the highest, and most solemn function, which the judiciary could be called upon to perform; for, as was said with sententious brevity by the court, in one of the earliest cases on this subject, it involves the inquiry, whether the will of the representatives, as expressed in the law, is, or is not, in conflict, with the will of the people, as expressed in the constitution. Great, however, as is the responsibility involved in this exercise of judicial power, I should meet it without difficulty, if it were necessary to the decision of this cause. But I fully concur in the sentiment of counsel, that whilst, on a proper occasion, it ought to be met with firmness, on the other hand, it is the part of wisdom, to decline the decision of such a question, when not necessary. From the view which I have taken of this case, I do not consider it necessary, and shall therefore, pass it, without further remark. It is wholly irrelative to the merits of this case, to inquire whether there may not have been error committed by the auditor, in the stating of the account, on which this proceeding is founded; because, we are not sitting here, to review this case, as an appellate court, on a writ of error, nor, is it before us, as the proceedings of special jurisdictions in England are before the king’s bench, by certiorari. In either of those aspects, the decision which we should be called upon to make, would depend upon the result of the inquiry, whether there was or was not, error in the proceedings; but, sitting as we are, upon a habeas corpus, the question is not, whether there is error in the proceedings, but whether there was jurisdiction of the case, in the auditor of the treasury. It was settled as early as the great Marshalsea Case, in 10 Co. 76, and the principle has never been departed from, that where a court has jurisdiction, and proceeds inverso or dine, or erroneously, there the proceeding is only voidable; but where the court has not jurisdiction of the case, there the whole proceeding is coram non judice, and void; the books, both English and American, abound in cases exemplifying this principle. But a habeas corpus will not lie, where the imprisonment is undei- voidable process, but only where it is merely void; for void process is the same thing as if there *were none at all; and then the party is in effect imprisoned without any authority whatever. Hence, the question would seem naturally to arise, whether the auditor had jurisdiction in the case—in other words, whether the person and subject-matter are such as to bring the case within the provisions of the act of congress—for these are the criteria of jurisdiction. This question was elaborately argued at the bar, and I have considered it with great care. I forbear, however, to enter into the discussion of it here; because, although it should be clearly made out, that the auditor had once had jurisdiction, yet upon the facts in this case, another question arises, which, in my opinion, is decisive of the case; and that is, after the auditor shall once have settled an account of a public officer, and closed it, as in this case, is it competent for him, at an after time, upon an allegation of error, or omission, or for other cause, to open it, restate it, and upon the account thus restated, to institute proceedings by a warrant of distress against the debtor ? I think it is not. Let us try the question by reference to some analogous cases. I take it to be a sound principle, that when a special tribunal is created, with limited power, and a particular jurisdiction, that whenever the power given is once executed, the jurisdiction is exhausted and at an end—that the person 9 13 SUPREME COURT [Jan’y United States v. Nourse. that the money claimed has been received by the debtor to the United States as an officer. The statute, it was held, should be construed strictly. * , *It will be said, that the district judge proceeded, in the former J. case, on the ground, that Mr. Nourse was “ an officer that he took thus invested with power is, in the law, functus officio. This proposition is, I think, sustained by the case in 6 Bing. 85, where it is said by the court, that when a magistrate, who has power to convict, has once convicted, his jurisdiction is at an end—he is functus officio. Could he, at any after time, upon some supposed error, quash, or in any way impair the efficiency of his own conviction ? Suppose, a controversy to have been submitted to arbitrators, and that they had made a final award, and delivered it, could they, afterwards, on their own mere motion, change or set aside their own award? Lest, however, it might be supposed, that there might be any thing peculiar in this case, by reason of these being judges of the parties’ own choosing, let us suppose some cases of special jurisdiction, or powers given by law. Under the acts imposing direct taxes, assessors were appointed to value the lands and slaves of the country, with a view to a just apportionment. After the had made and completed their assessment, so that it was once communicated, agreeable to the requirements of the law, could they, afterwards, in any manner, have altered it, so as to change the valuation? Suppose, that commissioners of bankruptcy had once decided in a given case,—that the party was a trader, that he had committed an act of bankruptcy—and had, in all respects, completely executed the power conferred upon them, could they, afterwards, by their own authority, have vacated or set aside their act ? Finally, suppose, that the commissioners appointed (under any one of the treaties, under which we procured an indemnity from Spain, France or Naples) to adjudge the claims of our citizens, had fully executed that trust—had made and announced an entire distribution of the fund —could they, at an after time, have varied their own adjudication ? In all the cases which I have put, I inquire into the power of the special jurisdiction, of its own mere authority, to alter or impair what they had done. Examples might be indefinitely multiplied—these are sufficient to illustrate my idea, viz., that whenever a special jurisdiction has once executed the power with which it was invested, their power is at an end, as to the subject in relation to which it has been executed. Let us trace the injurious consequences of a contrary doctrine. Until the power of the auditor is once executed, the officer knows that it is his duty to account, and having accounted, to pay. But if, after the account had once been stated and closed, he could open it again, how often, and within what period of time, shall he do it ? There is obviously no limitation, either as to length of time, or to frequency. Suppose, after once stating it, and then opening it, and restating it upon alleged error, he should think he had discovered error, he must open and restate it again. It will be observed, too, that though the auditor in this case did give the party notice, the law does not require it; unless, therefore, he shall be restrained to one settlement, it would be competent to him, years after the death of the original party, without notice, in the absence of his representatives, who might be dispersed through the United States, and in the absence of all proof on their part, to resettle the account in a manner which would produce great injustice. But again, if it be competent to him to open the account in favor of the United States, the converse of the proposition must be equally true, upon the principles of justice; it must be competent to him also, after the lapse of years, to open it against the United States, and in favor of the party. Might not this course most injuriously affect the public interest ? It seems to me, that a doctrine, which leads to such consequences, cannot be sound ; and that the government is not without ample remedy, though this power shall be denied to the auditor. I suppose, there can be no doubt, that a bill in equity would lie, to surcharge and falsify, as in case of a settled account between individuals, and moreover, according to the doctrine of the supreme court (11 Wheat. 237), even at law, although a settled account would be primd facie evidence, yet it could recover, upon proving mistakes or omissions, any 10 1835] OF THE UNITED STATES. . 14 United States v. Nourse. jurisdiction of the case, upon that view of it; but it is submitted to this court, that this must manifestly appear ; it must be fully and clearly established, that in the decree, or opinion of the judge, he was an officer sum, of which it had been thus unjustly deprived. , Nobody doubts the power of the auditor to settle the accounts of the public officers, from time to time, as they shall fail to account, or pay, any sums accruing after previous settlements; the objection is, to resettle an account, once settled, and which must have imported to have been a full and final settlement, at the time when made; for the law requires that to be done. I have felt some difficulty upon the question, whether a habeas corpus could be sustained in favor of a party imprisoned under civil process, as in this case. The difficulty arose from the doubt expressed by two high authorities, although decided by neither. In Ex parte Wilson, 6 Cranch 52, the oarty was arrested by a capias ad satisfaciendum, and was in prison-bounds. An application was made for a habeas corpus, on the ground, that the creditor had refused to pay his daily allowance. The court said, it was not satisfied, that a habeas corpus was the proper remedy, in the case of arrest, under civil process. In 15 Johns. 152, the supreme court of New York, except one of the judges, express the same doubt, and refer to the case in Cranch. The judge, in delivering the opinion of the court, says, if it were necessary to decide the point, he should say, it would not lie in such a case. I suppose, that, probably, the doubt originated from this fact. The celebrated habeas corpus act of 31 Car. II., which, as Judge Kent, in his Commentaries, says, is the basis of almost all the American statutes on the subject, and which, in practise, by reason of its valuable provisions for insuring speedy action, has almost superseded the common law, has been held in England to be confined to criminal cases. All the judges of England, in answer to a question propounded to them by the House of Lords, answered ; that it did not extend to any case of imprisonment, detainer, or restraint whatever, except cases of commitment for criminal or supposed criminal matters, 3 Bac. Abr. 438, n. At the same time, this question, in substance, was put to them; whether, if a person imprisoned apply for a habeas corpus ad subjiciendum, at common law, and make affidavit that he does not believe that his imprisonment is by virtue of a commitment, for any criminal or supposed criminal matter, would such affidavit, as the law then stood, be probable cause for awarding the writ? The question „being objected to, was not put. This would seem to leave the point in an unsettled state. Yet there are two books of authority, which, I think, sustain the doctrine, that the writ is not confined to criminal cases. Blackstone, in his 3d. vol. p. 132, says, that the great and efficacious writ, in all manner of illegal confinement, is the habeas corpus ad subjiciendum. Bacon, 3d. vol. p. 421, says, whenever a person is restrained of his liberty, by being confined in a common jail, or by a private person, whether it be for criminal or civil cause—he may regularly, by habeas corpus, have his body and cause removed "to some superior jurisdiction, &c. Now, the act of congress authorizes us to issue the writ, “for the purpose of inquiring into the cause of commitment.” Upon this, the supreme court, in Ex parte Watkins, 3 Pet. 201, remarks, “that no law of the United States prescribes the cases m which this great writ shall be issued, nor the power of the court over the party brought up by it. The term is used in the constitution as one which was well understood. This general reference to a power which we are required to exercise, without any precise definition of the power, imposes on us the necessity of making some inquiry into its use, according to that law, which is, in a considerable degree, incorporated in our own.” If, in making this inquiry, we were to consult the British statute alone, we should find it, as already stated, confined, in its construction, to criminal cases. But, if we look to the common-law authorities which I have mentioned, it seems to me, that we are justified in applying it to a case of civil process. Indeed, we know it to have been repeatedly applied in England to the domestic relations of life, such as the liberation of a wife from the unjust restraint of a husband, and a child 11 *15 SUPREME COURT [Jan’y United States v. Nourse. within the intendment *of the statute; and this is not the fact. In the former case, a reference of the accounts between the United States and the complainant in the bill, was made to auditors. The credits from that of a parent. And certainly, we are well warranted in making this reference to the common law; because, although it is admitted by all, that it is not a source of jurisdiction, yet it is habitually, rightfully, nay, necessarily, referred to, for the definition and application of terms—indeed, there are many terms in the constitution which could not otherwise be understood. Nor do even the doubts expressed in the cases from Cranch and Johnson apply to this; for both of those were on process of civil execution, issuing from a court of record and general jurisdiction, whereas, this is a case of process, issuing from a special jurisdiction, which can neither be supervised by certiorari, nor re-examined by writ of error. In this case, then, if a habeas corpus would not lie, there would be no relief from imprisonment without lawful authority. In cases of execution from courts of record, the courts themselves can quash it, if it do not conform to the judgment; if it do, and that judgment be erroneous, it can be corrected in a court of appellate jurisdiction. Upon the whole view of the subject I am of opinion, that the party should be discharged. Marshall, Ch. J.—Robert B. Randolph, late acting purser of the frigate Constitution, was brought into court, on a writ of habeas corpus, and a motion is now made for his discharge from imprisonment. The writ was directed to the marshal of this district, in whose custody he is. The return of the officer shows the cause of caption and detention to be a warrant issued by the accounting officers of the treasury, under authority of the act passed the 15th day of May 1820; which, after reciting that Robert B. Randolph, late acting purser of the United States frigate Constitution, stands indebted to the United States in the sum of $25,097.83, agreable to the settlement of his account, made to the proper accounting officers of the treasury, and has failed to pay it over, according to the “act for the better organization of the treasury department,” commands the said marshal to make the said sum of $25,097.83, out of the goods and chattels of the said Randolph; and in default thereof, to commit his body to prison, there to remain until discharged by due course by law. If these proceedings fail to produce the said sum of money, the warrant is to be satisfied out of his lands and tenements. The return shows, that the body of the said R. B. Randolph was committed to prison, and is detained by virtue of this process. Several objections have been taken to the legality of the warrant, the first and most important of which is, that the act of congress under the authority of which it issued, is repugnant to the constitution of the United States. If this objection be sustained, the warrant can certainly convey no authority to the officer who has executed it, and the imprisonment of Randolph is unlawful. The counsel of the prisoner rely on several parts of constitution, which they suppose to have been violated by the act in question. The first section of the third article, which establishes the judicial department, and the seventh amendment, which secures the trial by jury in suits at common law, are particularly selected, as having been most obviously violated. No questions can be brought before a judicial, tribunal, of greater delicacy than those which involve the constitutionality of a legislative act. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other points, a just respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed. The act of congress, under the authority of which the process by which Mr. Randolph is imprisoned, was issued, makes it the duty of certain officers of the treasury, to settle and cause to be stated, the account of any collector of the revenue, &c., who shall fail to render his account, or pay over the same, in the manner or in the time required by law, exhibiting truly the amount due to the United States, and certifying the same to the agent of the treasury, who is authorized and required to issue a war- 12 1835] OF THE UNITED STATES. 15 United States v. Nourse. claimed against the balance of the accounts stated at the treasury, were founded on items of expenditures made by Mr. Nourse, as agent for their disbursement; and a perpetual *in junction was awarded. It does not appear in the decreee, what the decision of the judge was, as to L rant of distress against such delinquent officer and his sureties, directed to the marshal of tile district in which such delinquent officer and his surety or sureties shall reside; which officer is commanded to make good the money appearing to be due to the United States, by seizing and selling the goods and chattels of such delinquent officer and his sureties, and by committing the body of such delinquent officer to prison, there to remain until discharged by due course of law. If this ascertainment of the sum due to the government, and this issuing of process to levy the sum so ascertained to be due, be the exercise of any part of the judicial power of the United States, the law. which directs it, is plainly a violation of the first section of third article of the constitution, which declares, that ‘1 the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as congress shall, from time to time, ordain and establish. The judges, both of supreme and inferior courts, shall hold their offices during good behavior.” The judicial power extends to “controversies to which the United States shall be a party.” The persons who are directed by the act of congress to ascertain the debt due from a delinquent receiver of public money, and to issue process to compel the payment of that debt, do not compose a court ordained and established by congress, nor do they hold offices during good behavior. Their offices are held at the pleasure of the president of the United States. They are, consequently, incapable of exercising any portion of the judicial power, and the act which attempts to confer it, is absolutely void. In considering the validity of this act, therefore, it is necessary to discard every idea of its conferring judicial power. We must not view the statement or certificate of the account as a judgment, or the warrant which coerces payment as judicial process. They must be viewed as mere ministerial agents. They cannot be otherwise sustained. I will, for the present, assume, that the power of collecting taxes and of disbursing the money of the public, may authorize the legislature to enact laws by which the agents of the executive may be empowered to settle the accounts of all receiving and disbursing officers, and to issue process in the nature of an execution, to compel the payment of any sum alleged to be due. But these agents are purely ministerial, and their acts are necessarily to be treated only as ministerial acts. The inevitable consequence is, that their validity must be decided by those legal principles which govern all acts of this character. These require that the authority, whether given by a legislative act or otherwise, must be strictly pursued. Such agents cannot act on other persons, or on other subjects, than those marked out in the power, nor can they proceed n a manner different from that it prescribes. This is a general rule, applicable to such cases generally; it applies with peculiar force to that now before the court. I will not attempt to detail the severities and the oppression which may follow in the train of this law, if executed in contested cases. They have been brought into full view by counsel, in their arguments, and I will not again present them. It may be said, with confidence, that the legislature has not passed any act which ought, in its construction, to be more strictly confined to its letter. By this rule, its words will be examined. The first objection to this warrant is, that Mr. Randolph is not one of those persons on whom the law was designed to operate. The act does not declare, that every debtor of the public shall be subject to this summary process. The particular persons against whom it may be used are enumerated. Those stated in the second section are, “ any collector of the revenue, receiver of the public money, or any other officer who shall have received the public money, before it is paid into the treasury of the United States.” The obvious construction of these words is, I think, that they describe persons who hold offices under government, to whose hands the public money comes, before it reaches the treasury. A collector of the revenue is an officer 13 16 SUPREME COURT [Jan’y United States v. Nourse. the capacity in which Mr. Nourse acted, in the receipt of the money ; nor does he say anything to negative or affirm the fact. Nor is it material to the claim of the United States, that the proceeding is not a bar to this of this description; so is a receiver of the public money; and the following words, “or other officer who shall have received the public money, before it is paid into the treasury of the United States,” denominate the kind of persons who were in the Jaind of the legislature. The subsequent words preserve the idea, that regularly appointed officers only were intended. The word officer is retained, and is regularly used throughout the section, showing plainly, that no other debtor than one who was properly designated by the term officer, was contemplated by the act. Throughout the section, too, the sureties of such officer are regularly connected with him, and subjected to the same process, so far as respects their property. I do not mean to say, that the liability of the officer is made to depend on his having actually executed an official bond, with sureties. I do not mean to say, that an officer, regularly appointed, who should receive the money of the public, before the execution of his bond, might not be liable to this treasury execution. But I mean to say, that this language proves incontestibly, that the legislature contemplated those officers only, who were required to give bond, with surety, as the objects of the law. The sureties are spoken of throughout, as inseparable from the officer—as existing whenever the officer exists. This section does not comprehend the case of a purser in the navy, but I have thought it necessary to enter into its exposition; because it has a material bearing on the third section, which does comprehend persons of that description. The third sec tion enacts, “that if any officer employed, or who has been heretofore employed in the civil, military or naval departments of the government, to disburse the public money appropriated to the service of these departments, shall fail to render his accounts, or to pay over in the manner, and in the time required by law, or the regulations of the department to which he is accountable, any sum of money remaining in the hands of such officer, it shall be the duty,” &c. To what person does the word officer, as used in this section, apply ? Is it to every commissioned officer in the army or navy of the United States, to whose hands any public money may be intrusted, or is it to those officers only whose regular duty it is to receive and disburse the public money, and who are appointed for that purpose ? The language of the sentence, I think, answers these questions to a reasonable certainty. It is, “any officer employed to disburse the public money appropriated to the service of these departments respectively.” A military or naval officer is employed for military or naval duties, not to disburse the public money appropriated to the service of his department. I cannot suppose, that a military or naval officer, to whose hands money belonging to the public may come, is, from the words of the act, more liable to this summary and severe proceeding than any individual, not bearing a commission, to whom the same money might be confided for similar purposes. The subsequent words of the sentence, “shall fail to render his accounts, or to pay over, in the manner and in the time required by law, or the regulations of the department to which he is accountable,” &c., also convey the idea, that a regular disbursing officer, whose duty was prescribed by law, or by the regulations of the department, was contemplated. The idea is still more strongly supported, by that part of the section which adopts all the provisions of the second section, and applies them to the sureties of the officer who is designated by the act, as well as to the officer himself. I think, then, the fair construction of the law is, that regularly-appointed officers who are required to give official bonds, were alone contemplated by the legislature. If we take into consideration the character and operation of the act, the extreme severity of its provisions, that it departs entirely from the ordinary or judicial proceeding, and prescribes an extreme remedy, which is placed under the absolute control of a mere ministerial officer, that in such a case, the ancient established rule is in favor of a strict construction; my own judgment is satisfied that this is the true construction. 14 1835] OF THE UNITED STATES. *1? United States v. Nourse. suit, that this did not appear. It is enough, that the *allegation was made by Mr. Nourse, that the did not act as “an officer,” in making the disbursements, and that the judge so decided the case. The judge says, Was Mr. Randolph an officer of this description ? The process, by authority of which he is in prison, designates him as “ Robert B. Randolph, late acting purser of the United States frigate Constitution.” The word acting, qualifies the word purser, and shows that he did not hold that office under a regular appointment, but for the time being, during the existing emergency. The omission to include his sureties in the warrant, as the law directs, shows that he had given no sureties; and this fact, unexplained, is evidence that no official bond with sureties was required. It might be added, that the explanatory accounts, to some of which reference is made in the warrant, prove with sufficient clearness, that Mr. Timberlake was purser of the frigate Constitution, then cruising in the Mediterranean, and that on his death, Lieutenant Randolph was directed to perform the duties of purser, during the cruise. It is then apparent, that he was a mere acting, and not a regular purser. Mr. Nicholas has contended, with much plausibility, that having taken upon himself the office, he takes upon himself also all its responsibilities. This argument is true, to a certain extent, and, so far as respects responsibility alone, is unanswerable. In a regular proceeding against Mr. Randolph, no person wifi be hardy enough to deny his responsibility, to the same extent as if he had been a regular purser. It is not his responsibility to the United States, but his liability to this particular process, which is the subject of inquiry. Is a mere acting purser designated by the law as one of those officers against whom this summary process may be used? It is in vain to say, that he comes within the same reason, and is within the mischief against which the statute intends to provide. The statute does not reach all public debtors, and has selected especially those for which it is intended. No others can be brought within its purview. Those principles of strict construction, which apply, I think, to all laws restrictive of common right, forbid it. These reasons satisfy my own judgment, that Mr. Randolph was not an officer to whom the law applies the process under which he is imprisoned. If it were necessary to assign any reason for this distinction between temporary and permanent officers, it would not be difficult to find them. The permanent officer usually receives his money from the treasury, or by its order, so that the document which charges him, appears on the books of that department. The temporary officer will seldom be placed under the same circumstances. He may, and generally does, receive the money with which he is chargeable, in such a manner as to leave the amount subject to controversy. In this particular case, purser Timberlake must stand charged, I presume, with all the moneys advanced to the purser of the Constitution. The portion of this money which came to the hands of Mr. Randolph, would not appear on those books, and may be matter of controversy between him and Timberlake’s representatives. Congress might very reasonably make a distinction, when giving this summary process, between an officer whose whole liability ought to appear on the books of the department, and an agent whose liability was most generally to be ascertained by extrinsic testimony. But it is enough for me, that the law, in my judgment, makes the distinction. The accounts extracted from the books of the treasury, and laid before the court, furnish other matter for serious consideration. The second section of the act requires, that the account stated by order of the first comptroller of the treasury, “ shall exhibit truly the amount due to the United States.” For what purpose was the word truly introduced ? Surely, not to prohibit the officers of the government from exhibiting an account known to be erroneous. Congress could not suspect such an atrocity. Its introduction, then, indicates the idea, that this summary process was to be used only when the true amount was certainly known to the department—when the sum of money debited to the officer, appeared certain, and either no credits were claimed, or none about which a controversy existed. The amount due to the United States cannot 15 17 SUPREME COURT [Jan’y United States v. Nourse. that the services were extra-official; and the sums due as an off-set, were for services not official; and that the money received from the United States, was not received by him as register of the treasury. *Because the United States submitted to the proceeding, it has not validity. All the proceedings, after the warrant of seizure, would be truly exhibited, when the claim is shown, by the account itself, to exceed what is really due. I do not mean to say, that the debtor is not bound to show, with precision, the credits to which he is entitled. I do not mean to say, how far this failure to separate payments made from his own funds, and from those of his predecessor, may deprive him, in a suit at law, of the credits he claims. I mean to say only, that the amount claimed, is not the amount truly due to the United States, if the account itself shows that a smaller amount is due. The necessity of withholding the credit may justify proceedings against the debtor, in a court of justice, in which he must make good his credits; but will not, I think, justify issuing an execution, without any judicial inquiry, against the body and estate of the delinquent, for a sum confessedly more than is due. The third section omits the word truly, but requires that the account shall be stated, and directs the agent of the treasury to proceed in the manner directed in the preceding section, all the provisions of which are declared to be applicable to every officer of government chargeable with the disbursement of public money. It may be contended, that the provisions of the preceding section, thus adopted in the third, are those only which relate to proceedings after the account is stated. But I do not think this the fair construction of the statute. I think, the legislature can no more have intended, in the one case than in the other, that a treasury execution should issue for confessedly more than is due, by which the person of the debtor should be imprisoned, probably interminably, and his property sold. Congress must have designed to leave such cases to the regular course of law. If these principles be correct, let them be applied to the case before the court. Mr. Randolph is charged in the account on which the warrant issued, with cash left by purser Timberlake, on board the frigate Constitution, and, according to his own confession, received by him, $11,483. That he must account for this sum, is certain. I shall not inquire now, whether the treasury might issue an execution for it, or ought to have applied to a court of justice. I will proceed to other items of th account. He is recharged with slops, issued by him, which belongs to the estate of Mr. Timberlake, as appeared by his books. Is this to be settled at the treasury, under this act of congress, or does the inquiry properly belong to a court of justice ? He is charged with German linen, belonging to his private stores, which he turned into the navy-store at Charlestown, as slops. This item had been allowed to him, on a former settlement of his accounts. It is not alleged, that this linen has been returned to him. The United States may, and probably, have used it. Whether he is entitled to any, and to what credit, for this item, is a proper inquiry for a court of justice. The treasury may refuse the credit, and refer the question to a court of justice, but cannot, I think, issue an execution for it, as the case now stands. The material item allowed in a former settlement of accounts, and now re-charged, is the amount of advances on his pay-roll to officers and men, while he acted as purser of the Constitution, it now appearing by the memoranda of sales, by the evidence of Commodore Patterson and others, and by the general state of the account, that portions of these advances were made out of the money and stores of purser Timberlake, and out of the ship’s stores. I will not make the obvious objection to this item, that if Mr. Randolph paid the money, or sold the stores of Mr. Timberlake, on his own account, he is responsible to the estate of Mr. Timberlake, and that the treasury department of the United States does not represent him, nor that credit given for money paid by Mr. Randolph as his own, cannot be rescinded, by alleging that the money really belonged to another person, nor will I inquire by what authority the treasury department settles the accounts between Timberlake’s representatives and Randolph. But I will say, that 16 1835] OF THE UNITED STATES. 18 United States v. Nourse. be illegal, if the government had not a right to issue it; and no act of the officers of the United States could be of avail, to give it validity. Suppose, the warrant had issued by direction of the solicitor *of the treasury, who has no authority to order it, and no exception had been to it; L would the proceedings under it have had a legal existence ? As it may be considered, that the decree was made by the district judge, on the allegation in the bill for the injunction, that the money was not received as an officer, this court will not infer that this was the point decided. * Cbiee, for the defendant, contended, that the whole proceedings in the case, which is reported in 6 Peters, were judicial. Two L grounds for relief were presented to the district judge. The judge ordered the accounts between the United States and Mr. Nourse to be audited, thus passing by one of the grounds, and considering Mr. Nourse as “an officer and *deciding the case, after the report of the auditors, in that view rs|s of it. As to the nature of such a proceeding, he cited 5 Dane’s L Abridgment 223 : “where one acts as a judge, and the matter is within his jurisdiction, his sentence binds, until reversed.” In awarding the injunction, he acted judicially, and no other *view can be taken of his r^99 action in this case, when the record and the decree are examined. In the case of Arredondo, 6 Pet. 709, 711, this court have said, the power to hear and determine a cause, is jurisdiction ; it is coram judice, whenever a cause is presented which brings this power into action. 6 Pet. 709. All questions arising in the case are to be *decided. Ibid. 700. By con-senting to be sued, and submitting the decision to judicial action, L the United States have considered it as a purely judicial question. Ibid. 711. The United States, by adopting the proceeding authorized by the act of congress of 1820, claimed that the party against whom the warrant issued, was within the act ; and in the *answer to the bill presented to the r# district judge by Mr. Nourse, his liability as an officer is re-asserted. *-The district judge acted on this state of things, and gave a final decree upon them thus presented to him. If the decree in this case had been in the form of chancery proceedings in England, it would have been drawn up at large, and the whole audit of the accounts would then appear in the decree ; and it would be seen, that the very accounts upon which the United States have now instituted this this entry admits that part of the money was paid by Randolph out of his own funds, and certainly diminished his debt to the United States to that amount. Consequently, the whole amount for which execution issued was not due. If I am correct in saying that this summary process can be used only to coerce the payment of the sum actually due, not to coerce the payment of more than is due, that such controverted question ought to be decided in a court of justice; then this warrant has been issued in a case which the law does not authorize—in a case which ought to have been submitted to a court of justice. On both these points, I am of opinion, that the agent of the treasury has exceeded the authority given by law, and consequently, that the imprisonment is illegal. I have not had time to state my opinion on the remaining point on which my brother judge has given his opinion. It is of no importance, as I concur with him on it. Mr. Randolph is to be discharged from custody. 9 Pet.—2 It 24 SUPREME COURT United States v. Nourse. [Jan’y action were the subject-matter of the whole proceeding. In the case of the Bank of the United States n. Ritchie, 8 Pet. 128, this court held, that although the decree did not set forth the whole of the matters in which it was given, yet a party on a bill of review may take advantage of anything appearing in the record. The application of this rule is asked to the case before the court; and the objections on the part of the United States, that the character and object and purpose of this suit, and of the warrant of distress, are not shown to be the same, will not be urged. As to the position, that it does not appear in the first proceeding that Mr. Nourse was “ an officer,” within the objects of the statute : it is sufficient to say, that however the money,, claimed by the United States came into his hands, he was entitled to a, legal and valid set-off to the claim. The United States proceeded against him as “an officer,” claiming from him a * *balance for money he received as the register of the treasury ; and J he exhibited a set-off, beyond the whole sum demanded by the United States, to the satisfaction of the auditors appointed by the district judge, which report was confirmed by his decree. Marshall, Ch. J., delivered the opinion of the court.—The United States had instituted their suit against Joseph Nourse, in the circuit court for the district of Columbia, in the county of Washington, on an account authenticated according to law, by the proper accounting officers. The cause being at issue on the plea of non assumpsit, the following case was agreed between the parties. “ In this case, it was agreed, that the suit is instituted upon a transcript from the treasury of the United States, which is annexed to the record, in a former proceeding originating in the district court of the district of Columbia, and brought before the supreme court by appeal. And it is further agreed, that the defendant shall have the same benefit of the proceedings in said case, as if the same had been pleaded, or as if given in evidence upon the trial of the general issue ; and upon this statement, judgment shall be given as upon a case agreed, and either party be at liberty to refer to the printed record in said case of Nourse v. United States, as if the same were fully incorporated into this record.” The case referred to in this special statement grew out of a warrant of distress, issued by the treasury department, on the 14th day of July 1829, directed to the marshal of the district of Columbia, commanding him to levy and collect the sum of $11,769.13, by distress and sale of the goods and chattels of Joseph Nourse, late register of the treasury. This warrant was issued in pursuance of the act of May 15th, 1820, “providing for the better organization of the treasury department.” The third section of this act enacts, in substance, that “ if any officer employed in the civil, military or naval departments of the government, to disburse the public money appropriated for the service of those departments respectively, shall fail to render his accounts, or pay over, in the manner required by law, any sum of * _ money remaining in the hands of *such officer, it shall be the duty of J the officer charged with the revision of the accounts of such officer, to cause the same to be stated to the agent of the treasury, who is required to proceed against the delinquent in the manner directed in the preceding 18 1835] OF THE UNITED STATES. 26 United States v. Nourse. section.” That section directs the agent of the treasury to issue a warrant of distress against such delinquent officer and his sureties, directed to the marshal, who shall proceed to levy and collect the money remaining due, by distress and sale of the goods and chattels of such delinquent officer, having given ten days’ notice of such intended sale ; and if the goods and chattels be not sufficient to satisfy the said warrant, the same may be levied on the person of such officer, &c. The fourth section provides, that if any person shall consider himself aggrieved by any warrant issued under the act, he may prefer a bill of complaint to any district judge, setting forth the nature and extent of the injury of which he complains, and thereupon, the judge may grant an injunction to stay proceedings on such warrant altogether, or for so much thereof as the nature of the case requires ; and the same proceeding shall be had on such injunction, as in other cases, except that no answer shall be required on the part of the United States. Under the authority given by this section, an injunction was awarded by William Cranch, chief justice of the district of Columbia, and judge of the court of the United States for that district, to stay all further proceedings on the said warrant. In his bill, the complainant states, that his public accounts, as register of the treasury of the United States, and agent of the treasury department, in disbursing certain funds, and settling certain accounts of contingencies and other miscellaneous matters, and as agent for the joint library committee of congress, have been settled at the treasury, since his removal from office; upon which settlement, a pretended balance has been found against him for the sum of $11,250.26, for which warrant of distress has been issued by the agent of the treasury, which has been levied on his lands, tenements, goods and chattels, by the marshal of the district. That the said account is unjust and illegal; and so far from any balance being due thereon to the United States, a considerable balance should have been struck thereon in favor of the complainant; *as appears by an account annexed to the bill, which he declares to be just and true. That besides his regular duties as L register, he was, from the year 1790 till his recent dismissal from office, employed by the proper department of the government, in the separate business of special agent for the disbursement of the contingent funds of the treasury department, and for the settlement of the numerous accounts connected therewith. These duties devolved upon him great labor and responsibility, and occupied a great portion of his private hours. When he undertook this branch of public employment, no stipulation was made for the precise amount of compensation. The usage of the treasury and other departments of the government has invariably been, to allow commissions not only to unofficial persons so employed, but to official persons and clerks of the departments, when such duties were distinct from the stated duties appertaining to their offices. That he has regularly made out and presented his account to the proper accounting officers of the treasury; charging his commission at the rate of two and a half per cent, on the amount of disbursements ; which, if allowed, would leave the United States indebted to him in the sum of $9886.24, which he believes to be justly due to him. The complainant further states, that he is advised, that the act of congress under which the said warrant of distress is pretended to have been issued, being a 19 27 SUPREME COURT United States v. Nourse. [Jan’y law in derogation of common right, ought to be construed with the utmost strictness : but that, on no reasonable construction, can this complainant or his accounts, either as register of the treasury, or as agent of the joint library committees of congress, be brought within the descriptions of persons over whom that act gives jurisdiction to the agent of the treasury. The bill prays for an injunction and for further relief. The United States, in their answer, refer to and rely on the general account of the complainant, settled by the proper officer of the government, by which he was found indebted in the sum of $11,769.13. They admit that the complainant had rendered an account, charging a commission of two and a half per cent, on all the moneys which had passed through his hands in the different agencies in which he had acted, exhibiting a balance * _ in his favor of $9367.87. *They deny the right of the complainant J to a commission on the moneys disbursed by him ; and contend, that they were authorized by law to enforce the payment of the balance due to the government, by warrant of distress. They, therefore, pray, that the injunction may be dissolved, and that they may be permitted to pursue their legal remedies for the sum due to them. The court determined, that the said Joseph Nourse was entitled to compensation for the extra services he had rendered to the government, in the agencies mentioned in the bill; and appointed auditors to ascertain the value of his services and compensation, and to report thereon without delay. The report of the auditors allowed to the complainant a commission of two and a half per cent., on the sum of $943,308.83, disbursed by him in the several agencies in which he had been employed, leaving a balance due to him from the United States. The report was confirmed, and the injunction made perpetual. Some further proceedings were had in that cause, which do not affect the case now before this court. This suit is instituted on the same account on which the distress-warrant was issued, and against which the decree of the district judge was pronounced. The defendant relies on that decree, as a bar to the action. The circuit court adjudged it to be a bar ; and that judgment is now to be revised in this court. It is a rule, to which no exception is recollected, that the judgment of a court of competent jurisdiction, while unreversed, concludes the subjectmatter as between the same parties. They cannot again bring it into litigation. An execution is the end of the law. It gives the successful party the fruits of his judgment; and the distress-warrant is a most effective execution ; it may act on the body and estate of the individual against whom it is directed. It wrould excite some surprise, if, in a government of laws and of principle, furnished with a department whose appropriate duty it is to decide questions of right, not only between individuals, but between the government and individuals; a ministerial officer might, at his discretion, * , issue this powerful *process, and levy on the person, lands and -* chattels of the debtor, any sum he might believe to be due, leaving to that debtor no remedy, no appeal to the laws of his country, if he should believe the claim to be unjust. But this anomaly does not exist; this imputation cannot be cast on the legislature of the United States. 20 1835] OF THE UNITED STATES. 29 United States v. Nourse. While it was perceived, that the public interest required a prompt remedy against public defaulters, the legislature was not unmindful of the rights of individuals, and provided that this remedy should not be used oppressively. The party who thinks himself aggrieved may appeal from the decision of the treasury to the law, and prefer a bill of complaint to any district judge of the United States, setting forth therein the nature and extent of the injury ; who may grant an injunction to stay proceedings on such warrant altogether, or for so much thereof as the nature of the case requires. And the same proceedings shall be had on such injunctions, as in other cases, except that no answer shall be required on the part of the United States. Joseph Nourse, in pursuance of the permission given by this section, did file his bill of complaint, alleging, among other things, that he owed nothing to the United States, and praying the judge to enjoin all further proceedings on the warrant. The injunction was granted, and the whole cause thus transferred before the district judge, who was directed to proceed therein as in other cases. He had, consequently, full jurisdiction over it. After a reference to auditors, according to the course of courts of chancery in matters of account, he pronounced his final decree against the United States, and awarded a perpetual injunction. This decree is now in full force, and was in force, when this suit was instituted. The act of congress gave jurisdiction in the specific case to the district judge ; he might have enjoined the whole or a part of the warrant ; his decree might have been for or against the United States, for the whole or a part of the claim. On the sum which he found to be due, he is directed to assess the lawful interest ; he may add such damages as, with the interest, shall not exceed the rate of ten per cent, per annum on the principal sum. Had the district judge finally enjoined a part of the sum claimed by the United States, and decreed, that the residue should be paid with interest, all would perceive the unfitness of asserting *a claim, in a new action, to that portion of the debt which had been enjoined by the decree of the court. And yet L between the obligation of a decree against the whole claim, and against a part of it, no distinction is perceived. Aware of the difficulty of maintaining an action on a claim on which a court of competent jurisdiction has passed a judgment, still in force ; the attorneygeneral questions the jurisdiction of the district court, and rests his argument for the reversal of the judgment of the circuit court, chiefly on this point. He contends, that Joseph Nourse was not an officer contemplated by the act providing for the better organization of the treasury department ; that the warrant of distress could not legally be issued against him ; and, consequently, that this is not a case in which the district court can exercise jurisdiction. He refers to the bill of complaint, which is drawn with a double aspect ; it alleges, that the complainant is not indebted to the United States ; and that, were it otherwise, he is not an officer contemplated by the act against whom a distress-warrant can legally be issued. This argument has been considered. Did the case depend upon the question whether Joseph Nourse, in any of the characters in which he is charged in the account accompanying the warrant, was an officer subjected by law to this process, some difficulty would exist in finding in the record sufficient information on 21 30 SUPREME COURT [Jan’y United States v. Nourse. which to decide it. The following are the items of the account. To bal ance due— As agent for the joint library committee of congress, ■ . $2502 55 As agent for paying the expenses of stating and printing the public accounts, ........ 934 98 As agent for paying the superintendent and watchmen of the buildings occupied by the state and treasury departments, 1325 41 As agent for paying the expenses of printing certificates of the public debt, ......... 1011 29 As agent for paying the contingent expenses of the treasury department,................................ 5994 90 $11,769 13 * 311 Whether in any or all of these agencies, Joseph Nourse acted *as J an officer against whom a distress-warrant could legally be issued, for any sum in which he might be found a defaulter, the record does not furnish the means of deciding clearly. But the district court took no notice of that part of the bill which suggests this objection. It acted on the merits of the case, and decreed against the United States on those merits. Still, however, the attorney-general contends, that in so doing, it transcended its jurisdiction, and has taken cognisance of a case which could not legally be brought before it. This is founded entirely on the assumption that the warrant was issued against a person not liable to it. Let this be conceded. * It would be strange indeed, if the legislature, intending to give a prompt remedy against a particular class of debtors, should carefully guard that class against any abuse of the remedy ; and yet leave all other persons, whether debtors or not, exposed to that abuse ; that an officer liable to the process should be enabled to correct it, if it issued injuriously, by appealing to the law ; and yet that an individual not liable to the process, should be compelled to submit to the oppression and to suffer the wrong. The act is not chargeable with this inattention to the rights of individuals. The sections which regulate the proceedings of the treasury department on the warrant, contemplate the officer against whom it may be issued, and confine it to him ; but when the legislature turns its attention to the individual against .whom it may issue, the language of the law is immediately changed. The word person is substituted for officer,Sand the act declares, “ that if any person should consider himself aggrieved by any warrant issued under this act, he may prefer a bill of complaint, &c., and thereupon, the judge may grant an injunction, &c.” The character of the individual against whom the warrant may be issued is entirely disregarded by this part of the act. Be he whom he may, an officer or not an officer, a debtor or not a debtor ; if the warrant be levied on his person or property, he is permitted to appeal to the laws of his country, and to bring his case before the district judge, to be adjudicated by him. * 391 *The district court then had complete jurisdiction over this case, - * and its decision is final. The judgment is, consequently, a bar to any subsequent action for the same cause. The judgment of the circuit court is affirmed. 22 1835] OF THE UNITED STATES. Bank of Alexandria v. Swann. 32 This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel : On consideration whereof, it is adjudged and ordered, that the judgment of the said circuit court in this cause be and the same is hereby affirmed. *The President, Directors and Company of the Bank of Alexan- [*33 dria, Plaintiffs in error, v. Thomas Swann. Promissory notes.—Notice of non-payment. The general rule, as laid down by this court in Lenox v. Robert, 2 Wheat. 373, is, that the demand of payment of a promissory note should be made on the last day of grace ; and notice of the default of the maker be put into the post-office, early enough to be sent by the mail of the succeeding day. The note on which the action in this case was brought, having become due at the Bank of Alexandria, where it was made payable, payment of the same was demanded at the bank, before three o’clock on that day; notice of non-payment was put into the post-office on the following day, directed to the indorser, the defendant in error, who resided in Washington ; according to the course of the mail from Alexandria to the city of Washington, all letters put into the mail, before half-past six o’clock, p. m., at Alexandria, would leave there some time during the night, and would be deliverable at Washington, the next day, at any time after halfpast eight o’clock. The defendant in error contended, that as demand of payment was made before three o’clock, p. m., notice of the non-payment of the note should have been put into the post-office on the same day it was dishonored, early enough to have gone with the mail that evening. The court held, that the law does not require the utmost possible diligence in the holder in giving notice of the dishonor of the note ; all that is required is ordinary reasonable diligence; and what shall constitute reasonable diligence ought to be regulated with a view to practical convenience, and the usual course of business. The law, generally speaking, does not regard the fractions of a day; and although the demand of payment at the bank was required to be made during banking hours, it would be unreasonable, and against what the special verdict finds to have been the usage of the bank at that time, to require notice of non-payment to be sent to the indorser on the same day. This usage of the bank corresponds with the rule of law on the subject. If the time of sending notice is limited to fractions of a day, it will always come in question, how swiftly notice could be conveyed. The notice sent by the mail, the next day after the dishonor of the note, was in due time. The law has prescribed no particular form for such notice ; the object of it is merely to inform the indorser of the non-payment by the maker, and that he is held liable for the payment thereof. The note on which the suit was brought was for $1400, made by H. P., in favor of the defend-dant in error, and the notice described it as for the sum $1457; in the margin of the note, was set down in figures $1457, and the special verdict found, that the note was discounted at the bank, as for a note of $1457; the defendant in error was not an indorser on any other note drawn by H. P. and discounted at the bank, or placed there for collection. This case falls within the rule laid down by this court in the case of Mills v. Bank of the United States, 11 Wheat. 431, that every variance, however immaterial, is not fatal to the notice; it must be such a variance as conveys no sufficient *knowledge to the party of the particular note which has been dishonored. If it does not mislead him, if it conveys to him the real fact, with- L out any doubt, the variance cannot be material, either to guard his rights, or avoid his responsibility. In that case, as in the one now before the court, it appeared, that there was no other note in the bank, indorsed by Mills ; and this the court considered a controlling fact, to show that the indorser could not have been misled by the variance in the date of the note, which was the misdescription complained of.1 Where it did not appear on the record, that a bond had been given to the clerk of the circuit 1 See note to Mills v. United States Bank, 11 Wheat. 431; also. United States Bank v. Watter- son, 4 Cr. C. C. 445. 23 34 SUPREME COURT [Jan’y Bank of Alexandria v. Swann. court to prosecute the writ of error, the court continued the case to a subsequent day of the term, to ascertain whether a bond had been given. Bank of Alexandria v. Swann, 4 Cr. C. C. 136, reversed. Ebbob to the Circuit Court of the District of Columbia, and county of Alexandria. This was an action in the circuit court of the county of Alexandria, instituted by plaintiffs in error against the defendant, on a promissory note made by H. Peake, and indorsed by the defendant, payable and negotiable at the bank of Alexandria. The first count in the declaration set forth the liability of the defendant on a note for $1400, dated the 23d day of June 1829, and payable in sixty days from the date thereof. The declaration stated, that after the time limited in the note'for the payment thereof, viz., on the 25th day of August 1829, the note was shown and presented to the maker, at the bank, and payment requested of the same, which was refused, of which notice was afterwards, on the said 25th day of August, given to the defendant. The second count was for the sum of $1500, money laid out and expended. The defendant pleaded non assumpsit, and on the trial of the issue, the jury found the following special verdict : “We, of the jury, find, that one Humphrey Peake, on the 14th day of March 1826, obtained, for his own accommodation, a discount at the bank of the plaintiffs, for the sum of $1457.57, on his note for that amount, indorsed by defendant, on the day and year aforesaid, payable sixty days after date ; that the said discount was regularly continued from that time until the 5th day of February 1828, by new notes of the said Humphrey Peake, for this same sum, indorsed by the defendant, and discounted at the said bank, to take up the preceding notes, the sums discounted on which new notes were regularly so applied; that on the said 5th day of February 1828, a note of the said Humphrey Peake for $1457, of that date, payable sixty days after date, to the defendant, and *by him indorsed, nego- J tiable and payable at the said bank, was there discounted towards taking up a note of the said Humphrey, indorsed by defendant, and discounted as aforesaid, for the sum of $1457.60, which became due on the said 5th day of February 1828 ; and that the discount so made on the said note of $1457, on the said 5 th of February, was regularly continued by a series of notes of the said Humphrey, indorsed by the defendant, for the said last-mentioned sum, negotiable and payable at said bank, until the 23d of June 1829 ; all which discounts, so made, were applied regularly towards the discharge of the notes before discounted as aforesaid at the said bank. We find, that on the 23d day of June 1829, a note of the said Humphrey Peake, for the sum of $1457, indorsed and discounted as aforesaid, became due and payable at the said bank ; and that, on the said 23d day of June 1829, the note in the declaration mentioned, was, at the instance of the said Humphrey, discounted at the said bank, as and for a note of $1457, for the purpose of taking up the note of the said Humphrey, indorsed and discounted as aforesaid, which became due on the said 23d of June ; and that the sum of $1441.45, the discount so made, was applied towards that purpose ; that, when the said discount was made, the said note was, from reference to the figures in the margin only, mistaken as a note for $1457. We find, that the body and signature of the said note, dated the 23d day of June, including the date and figures in the margin, are wholly in the handwriting of the 24 1835] OF THE UNITED STATES. 35 Bank of Alexandria v. Swann. said Humphrey, and were written by him ; and that the indorsement of the name of the defendant thereon, is in the handwriting of the defendant, and was made by him, for the purpose of having the said note discounted at the said bank, for the object before expressed ; and we find, that the said note and indorsement are in the words and figures following : “$1457. Alexandria, June 23, 1829. Sixty days after date, I promise to pay to Thomas Swann, Esq.., or order, for value received, fourteen hundred dollars, payable and negotiable at the Bank of Alexandria. • Humph. Peake.” Indorsed—Tho. Swann. *“We find, that during the whole period of time before men-tioned, that is to say, from the 5th day of February 1828, and from ’ thence to this day, there was no other note of the said Humphrey, indorsed by the said defendant, discounted by the said bank, or in the said bank for collection or otherwise. We find, that the business of the said bank always has been, and yet is, transacted at their banking-house, in the town of Alexandria ; and that the defendant, on the 25th day of August 1829, for a long time before, and ever since, was, and ever has, continued to be, an inhabitant and resident of the city of Washington, in the district of Columbia, distant about seven miles from Alexandria. We find, that during the whole month of August, in the year 1829, the mail from Alexandria to the said city of Washington, and to other towns on the main northern route, was made up, once a day; that it closed at nine o’clock, p. m., on each day, and that letters for Washington and for the north, put in after half an hour after eight o’clock, p. m., were not, in the general course of proceedings in the post-office at Alexandria, sent by the mail which closed on that day, but were post-marked on the succeeding, and sent by the mail made up on such succeeding day ; and that all letters for Washington and the north, put into the post-office at Alexandria, before half-past eight o’clock, p. m., were postmarked on the day they were so put in, and sent by the mail which closed at nine o’clock, p. m., as before stated ; that the mail for Washington and other northern towns, which was closed at Alexandria, as aforesaid, at nine o’clock, p. m., was sent off from Alexandria, between twelve o’clock at night of the same day, and two o’clock in the morning of the succeeding day; sometimes, but very rarely, leaving Alexandria before twelve o’clock at night, as aforesaid, and generally leaving that place about two o’clock in the morning of the day succeeding the making up and closing of the mail at Alexandria, as aforesaid. “We find, that letters from Alexandria to Washington, sent by mail, were, during the period aforesaid, delivered out at Washington at any hour after eight o’clock, a. m., on the day succeeding that on which the mail was closed at Alexandria for that place. We find, that the hours of business at the said Bank of Alexandria, during the winter, have always been from ten o’clock a. m., to three o’clock, p. m., and during the r * *summer, from nine o’clock, a. m., to three o’clock, p. m.; after L which latter hour, the clerks and officers left the bank, and attended no more to banking business during the day. W e find, that it is, and for a long time past, including the year 1829, has been, the usage of the Bank of Alexandria, and other banks in the town, to deliver out to the notary, 25 SUPREME COURT [Jan’y 37 Bank of Alexandria v. Swann. on each day, at three o’clock, all notes and bills discounted by, or to be paid at such banks, which have become due on such day, for demand and protest ; and for the notary to return such notes, with the protest for nonpayment, to the said bank, on the morning of the succeeding day, soon after the bank opened. We find, that on the 25th day of August, being the third day of grace on the note in the declaration mentioned, it was, by Benjamin C. Ashton, teller of the said bank, and during bank-hours of that day, presented at said bank to James L. McKenna, cashier of the said bank, for payment; that the said McKenna examined the books of the said bank, and found that the said Humphrey Peake had no money or funds there, and stated that fact to the said teller ; that neither the said Peake, nor any other person appeared for him at the said bank, to pay the said note ; and that before the 28th day of August 1829, the said Peake had failed, and had left the town of Alexandria, where he had before that time resided. We find, that the said note having remained unpaid on the said 25th of August 1829, it was, on the closing of the bank on that day, taken out by the said Benjamin C. Ashton, who was also a notary-public, for protest, and was, on the morning of the 26th of August 1829, returned to the said bank, with the protest, which was drawn up on the said 26th of August 1829 ; and that the said note, in the said declaration mentioned, remained in the said bank as its property, from the said 23d day of June 1829, until about the 30th of October, in the same year, when it was delivered to their attorney for suit, with the exception only of the time it was in the hands of the said Benjamin C. Ashton, as notary as aforesaid. “We find, that on the 26th day of August 1829, and long before the closing of the mail of that day, at Alexandria, Benjamin C. Ashton, on behalf of the said bank, put into the post-office at Alexandria a letter written by him, addressed to the defendant, at Washington, intended by the * , said letter to *give him notice of the non-payment of the said note, J which letter was post-marked at the post-office in Alexandria, ‘ Alexandria, D. C., August 26,’ and is in the words and figures following : ‘Alexandria, August 26, 1829. Sir :—A note drawn by Humphrey Peake, for 1457 dollars, dated Alexandria, 23th of June 1829, payable to you, or your order, at the Bank of Alexandria, sixty days after its date, by you indorsed, and for payment of which you are held liable, is protested for non-payment, at the request of the President, Directors & Co. of the said bank. Respectfully, your obedient servant, Benj. C. Ashton, Not. Pub. Thomas Swann, Esq., Washington City.’ “Which letter was received by the defendant, in due couise of mail, on the 27th day of August 1829. We find the protest, before referred to, in the words and figures following : ‘$1457. Alexandria, June 23, 1829. Sixty days after date, 1 promise to pay to Thomas Swann, Esq., or order, for value received, fourteen hundred dollars, payable and negotiable at the Bank of Alexandria. Humph. Peake. Indorsed—Tho. Swann.’ 26 1835] OF THE UNITED STATES. 38 Bank of Alexandria v. Swann. ‘ United States of America, District of Columbia, county of Alexandria, to wit: On the 25th day of August, in the year of our Lord 1829, at the request of the President, Directors and Company of the Bank of Alexandria, I, Benjamin C. Ashton, public-notary in and for the county of Alexandria, by lawful authority duly appointed and qualified, dwelling in Alexandria, in the county and district aforesaid, demanded payment of a note, of which the above is a copy, of the cashier of the Bank of Alexandria, at the said bank, and he answered, that no funds were there for its payment; and on the 26th day of the same month, I *gave notice to the indorser, by mail, that the drawer of the said note had failed to pay it. Where- *-upon, I, the said notary, at the request aforesaid, did protest, and by these presents do publicly and solemnly protest, as well against the drawer and indorser of the said note, as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, charges and interest already incurred, or to be hereafter incurred, for the want of payment thereof. In testimony whereof, I have hereunto set my hand, and affixed my seal notarial, the day and year aforesaid. [l. s.] Benj. C. Ashton, Notary Public. Protesting—$1.75.’ “We find, that no part of the said sum of $1400, of the note in the declaration mentioned, has been paid. We find, that the said Bank of Alexandria kept a book called an offering-book, in which the different sums and notes offered for discount were entered ; and that this book was always laid before the board of directors, on the discount days in the bank, and the discounts agreed to be made by the board regularly entered in the said discount book. We find, that the 23d day of June 1829, was one of the regular discount days in the said bank ; and on that day, the said book was laid before the board of directors, and, among the other entries made for discount on that day, was one in the following words and figures : ‘ Humphrey Peake, Thomas Swann, Humph. Peake. June 23, August 22, 1457, 15.54, 1441.46.’ “We find, that the said entry was intended to mean that the said Humphrey Peake, had offered for discount his note for $1457, indorsed by the said defendant, and payable sixty days thereafter. We find, that no note for $1457, drawn by the said Humphrey Peake, and indorsed by the said defendant, had been offered for discount to the said bank, on the said 23d of June 1829 ; but that the note in the declaration mentioned, was, on that day, offered to the said bank for discount, and for the purpose of renewing for that amount the note of $1457, then due at the said bank. We find, that no note for $1400, drawn by the said II. Peake, and *indorsed by the said defendant, was ever entered on t he books of the said bank L for discount ; nor is there any entry made upon the books of the said bank, that any such note had ever been discounted by the said bank. We find, that, upon the offering for $1457, before stated, the board of directors agreed to make a discount for that sum, and the same was entered in the discount book, as discounted, and the proceeds carried to the credit of the said Humphrey Peake. We find, that the said discount was intended by the board as a renewal of the note of $1457, then due to the said bank; and that the note in the declaration mentioned, was intended to be designated in 40 SUPREME COURT [Wy Bank of Alexandria v. Swann. the offering book, by the said description of a note drawn by the said Peake, and indorsed by the defendant as a note for $1457. “If, on the whole matter aforesaid, the law be for the plaintiffs, then we find for the plaintiffs, and assess their damages to the sum of $1400, being the principal sum due, to bear interest from the 26th day of August 1829, till paid ; and if the law be for the defendant, then we find for the defendant.” Upon this verdict, the circuit court gave judgment for the defendant, and the plaintiffs prosecuted a writ of error to this court. Swann objected to the plaintiffs’ proceeding in this case, as it did not appear on the record from the circuit court, that a bond had been given to the clerk of that court to prosecute this writ of error. The court continued the case to enable the parties to ascertain, by a reference to the clerk of the circuit court, if a bond had been given. On the subsequent day of the term, a certified copy of the appeal bond was filed in this couYt, and the argument in this case proceeded. Jones, for the plaintiff in error.—The first objection is to the notice of protest, that it was not expedited by the notary from Alexandria in due time. The facts were, that the last day of grace expired on the 25th of August, and at the closing of the bank, on that day, at three o’clock, p. m., the note, after having been duly presented and demanded at the bank, was * .. given out to the notary *for protest, was duly protested the same day, and on the next, at the opening of the bank, at nine o’clock, a. m., war returned by the notary into bank, under protest; and by the regular mail of the same day (26th of August), the notice in question was sent to the indorser in Washington. The bank, as usual, remained closed, without having any of its officers present, or any business transacted there, from three o’clock, p. m., on the 25th, to nine o’clock, a. m., on the 26th. The daily mail, from Alexandria to Washington, was closed at half-past eight o’clock, p. m., was sent on the same evening, and opened next morning at eight o’clock. And the precise objection is, that the notice was not expedited by the mail that closed at half-past eight o’clock, p. m., the same day the note fell due and was protested. It is considered to have been fully settled as the law, and this is the known custom with all the banks in the district of Columbia, that notice of the dishonor of a note shall be given the day after the dishonor of a note. On the strict principles of the common law, the notice could not be sent until the following day ; as, according to those principles, the party to the note had the whole of the day on which it became due to pay it. The cases to show that the notice to the indorser is properly sent on the day following the non-payment, are in Chitty on BiHs 225, 303 ; Lenox v. Roberts, 2 Wheat. 373. The second objection goes to the certainty of the letter of notice, addressed by the notary to the indorser; which, it is said, gave a wrong description of the note, as being one for $1457, instead of $1400 ; the latter sum being that inserted in the body of the note. In point of fact, it is found, that $1457 was the true and proper amount for which the note ought to have been drawn, and was intended to have been drawn, and that was the amount set down in figures on the margin of the note ; but by a mistake 28 1835] OF THE UNITED STATES. 41 Bank of Alexandria v. Swann. committed by the maker himself, in writing out the note, and overlooked by the officers of the bank, when it passed for discount (and in fact discovered for the first time when the objection was taken at the trial), the sum was written “ fourteen hundred, omitting the fifty-seven,” in the body of the note. The original discount, commencing in March 1826, *had been of a note for $1457.60, and ran on, by renewals of the note, every sixty days, for the same amount, till February, 1828 ; when it was renewed and continued for the precise amount of $1457, and so ran to the time of putting in the note now in question ; which was discounted in June 1829, as a renewal and continuation of the same standing accommodation, and “ as and for a note of $1457 which was the precise amount of the next preceding note replaced and taken up by it. The verdict expressly finds that no note made by Peake and indorsed by the defendant, as a note for $1400, was ever discounted, or offered for discount, at the said bank ; but that all the entries in the books of the bank import the discount on the 23d day of June 1829, when this note was discounted, as a note so made and indorsed, for $1457, and for no other sum. The object of the law is, that the party to the note, who is to be held responsible, shall have substantially a notice of its dishonor—sufficient notice to enable him to act for his own protection. This was done. The letter from the notary accurately described the note which the defendant supposed he had indorsed, with the exception of the amount of the same. The parties to the note supposed it to have been given for $1457, as it was intended to renew a note due at the bank for that sum. He cited Mills n. Bank, of the United States, 11 Wheat. 431, to show that no form of notice to the indorser of a promissory note is required, if the party has, from the notice given, sufficient knowledge of the particular note which has been dishonored. As to the form of the declaration, it was contended for the plaintiffs in error, that it is not necessary to state anything but that a demand and refusal took place ; no particulars of the demand need be stated. Chitty on Bills 248, 252 ; 3 Wend. 456 ; 8 Cow. 424. Coxe and Swann, for the defendant.—If the case was one of a demurrer to the evidence, the court could infer everything against the party demurring ; but it is that of a special verdict, and no other than the facts found can be considered by the court. The jury do not say that, substantially, notice was given ; but that the notary intended to *give notice. The r case of Mills n. Bank of the United States, does not therefore apply. L They cited also,'2 Johns. Cas. 337. Upon the insufficiency of the notice, as found in the special verdict, they cited, 1 T. R. 167 ; 6 East 3 ; 12 Mass. 404 ; 14 Ibid. 116 ; 5 Cow. 303. I. To sustain this action, the bank must show that they were entitled to this note. It is said, they discounted it, and therefore, it belonged to them. Was it discounted? The finding upon this question is contradictory. The note for $1400 was never offered for discount, and acted upon by the board. The offer for discount was for $1457, and that was granted. There was no action of the board upon any note, after this. The officers of the bank kept the note for $1400, and considered that as the discounted note. Had they a right to do so? It was, to be sure, a benefit to the indorser; but 29 43 SUPREME COURT Bank of Alexandria v. Swann. [Jan’y was it in the power of the officers to do it? Would the bank be bound by it? If they could take a note for $1400, they might for $100. If the bank had a right to reject this note, the indorser had the same right to do so. If so, it was not a discounted note ; and the bank had no right to it. II. If it was a discounted note, the next inquiry would be, whether the notice of protest was properly given ? 1. Was the note truly described? If not, then it became necessary to satisfy a jury, that it was intended to be truly described, and that it was known by the indorser to be the same note. 12 Mass. 6 ; 2 Johns. Cas. 337. The question whether the indorsei* knew that the note alluded to in the notice was the same with that produced in evidence, was left to the jury. The court say, in the case in Johnson, that it was a fact proper for the decision of the jury. In this case, the jury have not found this fact. They say, that the notary intended to refer to the note in question ; but they do not say, that the indorser knew that the notice alluded to the same note. The knowledge of the indorser is the most material fact. The intention of the notary is of no moment; and in this case, it is clear, that he *. , never intended to allude to a note of $1400. *The verdict then has J not found what was necessary to make this good notice. Can the court intend it ? Can the court say that the indorser knew that this notice alluded to the note of $1400? This was decided in both the above cases to be a question for the jury, and not the court. 2. Was the notice given in time ? The court will look at the facts found by the jury. If the indorser had lived in Alexander, he would have been entitled to notice that evening. If so, was he not entitled to have the notice put into the post-office that evening ? In the case of the Bank of the United States x. Carneal, 2 Pet. 551, the court say, it is difficult to lay down any universal rule as to what is due diligence in respect to notice to indorsers. Many cases must be decided upon their own particular circumstances, however desirable it may be, when practicable, to lay down a general rule. In Lenox n. Roberts, 2 Wheat. 373, the court say, that the demand should be made on the last day of grace, and the notice of default put into the post-office early enough to be sent by the mail of the succeeding day. This opinion was founded upon the special facts of that case. What would be the next mail in this case ? This notice, then, upon these grounds seems to be defective. Upon this view of the case, judgment cannot be rendered for the bank. Now, let us look at the declaration. It counts upon a note, negotiable and payable at the Bank of Alexander, on the 25th day of August. To charge an indorser upon such a note, a demand must be make at the Bank of Alexandria, on the day of payment, within the banking-hours. 2 Pet. 549. The declaration then must state a demand, at the time limited for the payment. The demand by a holder may be made at any time within the banking-hours. If the bank possesses the paper, this demand will be considered to have been made, by showing that the paper was there ; so that a demand, or that which amounts to a demand, must be shown in the declaration. How then does this declaration stand ? The demand is alleged to have been made at the bank, upon Peake, after the expiration of the * , time of payment. It may have been at four, six, eight or ten o’clock. J *Of what avail is a demand upon Peake anywhere ? Of what avail 30 1835] OF THE UNITED STATES. 45 Bank of Alexandria v. Swann. is a demand at the bank, after the banking-hours ? The declaration then is defective, and the defect not cured by the verdict. Slacum n. Pomery, 6 Crunch 221 ; Rushton v. Aspinall, 2 Doug. 679. But if not defective, the proof does not support it. Thompson, Justice, delivered the opinion of the court.—This suit was brought in the circuit court of the district of Columbia, for the county of Alexandria, upon a promissory note made by Humphrey Peake, and indorsed by the defendant in error. Upon the trial, the jury found a special verdict, upon which the court gave judgment for the defendant, and the case comes here upon a writ of error. The points upon which the decision of the case turns, resolve themselves into two questions. 1. Whether notice of the dishonor of the note was given to the indorser in due time ? 2. Whether such notice contained the requisite certainty in the description of the note ? The note bears date on the 23d day of June 1829, and is for the sum of $1400, payable sixty days after date, at the Bank of Alexandria. The last day of grace expired on the 25th of August, and on that day, the note was duly presented and demand of payment made at the bank, and protested for non-payment ; and on thè next day, notice thereof was sent by mail to the ihdorser, who resided in the city of Washington. The general rule, as laid down by this court in Lenox v. Roberts, 2 Wheat. 373, is, that the demand of payment should be made on the last day of grace, and notice of the default of the maker be put into the postoffice, early enough to be sent by the mail of the succeeding day. The special verdict in the present case finds, that according to the course of the mail from Alexandria to the city of Washington, all letters put into the mail before half-past eight o’clock, p. m., at Alexandria, would leave there some time during that night, and would be deliverable at Washington the next day, at any time after eight or o^clock, a. m. ; and it is argued on the part of the defendant in error, that as demand of payment was made before three o’clock, p. M^notice of non-payment of the note should have been put into the post-office on the same day it was dishonored, *early enough to have gone with the mail of that evening. The law does not •- ; require the utmost possible diligence in the holder, in giving notice of the dishonor of the note ; all that is required is ordinary, reasonable diligence ; and what shall constitute reasonable diligence ought to be regulated with a view to practical convenience, and the usual course of business. In the case of the Rank of Columbia v. Lawrence, 1 Pet. 583, it is said by this court, to be well settled at this day, that when the facts are ascertained, and are undisputed, what shall constitute due diligence is a question of law ; that this is best calculated for the establishment of fixed and uniform rules on the subject, and is highly important for the safety of holders of commercial paper. The law, generally speaking, does not regard the fractions of a day ; and although the demand of payment at the bank was required to be Diade during banking-hours, it would be unreasonable, and against what the special verdict finds to have been the usage of the bank at that time, to require notice of non-payment to be sent to the indorser on the same day. This usage of the bank corresponds with the rule of law on the subject. If the time of sending the notice is limited to a fractional part of a day, it is well observed by Chief Justice Hosmek, in the case of the Hartford Rank 31 46 SUPREME COURT Bank of Alexandria v. Swann. [Jan’y v. Stedman, 3 Conn. 495, that it will always come to a question, how swiftly the notice can be conveyed. We think, therefore, that the notice sent by the mail, the next day after the dishonor of the note, was in due time. 2. The next question is, whether, in the notice sent to the indor'ser, the dishonored note is described with sufficient certainty. The law has prescribed no particular form for such notice. The object of it is merely to inform the indorser of the non-payment by the maker, and that he is held liable for the payment thereof. The misdescription complained of in this case, is in the amount of the note. The note is for $1400, and the notice describes it as for the sum of $1457. In all other respects, the description is correct; and in the margin of the note is set down in figures $1457, and the special verdict finds that the note in question was discounted at the bank, as and for a note of $1457 ; and the question is, whether this *was • such a variance or misdescription as might reasonably mislead the indorser as to the note, for payment of which he was held responsible. If the defendant had been an indorser of a number of notes for Humphrey Peake, there might be some plausible grounds for contending, that this variance was calculated to mislead him. But the special verdict finds that from the 5th day of February 1828 (the date of a note for which the one now in question was a renewal), down to the day of the trial of this cause, there was no other note of the said Humphrey Peake, indorsed by the defendant, discounted by the bank, or placed in the bank for collection, or otherwise. There was, therefore, no room for any mistake by the indorser as to the identity of the note. The case falls within the rule laid down by this court in the case of Mills v. Bank of the United States, 11 Wheat. 376, that every variance, however immaterial, is not fatal to the notice. It must be such a variance as conveys no sufficient knowledge to the party of the particular note which has been dishonored. If it does not mislead him, if it conveys to him the real fact, without any doubt, the variance cannot be material, either to guard his rights or avoid his responsibility. In that case, as in the one now before the court, it appeared, that there was no other note in the bank, indorsed by Mills ; and this the court considered a controlling fact, to show that the indorser could not have been misled by the variance in the date of the note, which was the misdescription then complained of. The judgment of the circuit court is accordingly reversed, and the cause sent back, with directions to enter judgment for the plaintiffs, upon the special verdict found by the jury. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Alexandria, and was argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby sent back to the said circuit court, with directions to that court to enter judgment for the plaintiffs, upon the special verdict found by the jury. 32 1835] OF THE UNITED STATES. *48 *Bank of Georgia, Appellants, v. James Higginbottom, Administrator of William S. Gillett, and others. Cautionary judgment. G., the executor of his father, who had devised his estate to G. and his other children, sold the estate, and became himself the purchaser thereof; and in order to secure the portions of the other devisees, who were minors, confessed a judgment, June 1st, 1819, on a promissory note, in favor of two persons, without their knowledge, in a sum supposed to be sufficient to be a full security for the amount of the portions of the minors. The judgment was kept in full operation, by executions regularly issued upon it, so as, under the laws of South Carolina, to bind the property of G.; he was then engaged in mercantile pursuits, and had other property than that so purchased by him; G. afterwards became insolvent, and the claims of the devisees of his father under the judgment, were contested by his creditors, as fraudulent— the plaintiffs in the judgment having no 'knowledge of it, when it was confessed, the amount of the sum due to the co-devisees not having been ascertained, when it was confessed, no declaration of trust having been executed by the plaintiffs, and false representations of his situation having been made by G., after the judgment, whereby his creditors were induced to give him time on a judgment confessed to them subsequently. The judgment of June 1st, 1819, was held to be valid, and the plaintiffs in that judgment entitled to the proceeds of the sales of the estate of G., for the satisfaction of the amount actually due to the co-devisees by G. Appeal from the Circuit Court of South Carolina. The appellants, on the 4th of April 1827, filed their bill in the circuit court of the United States for the district of South Carolina, to set aside a judgment* or postpone the effect of the same, which had been confessed by William S. Gillett, in the Barnwell district court of the state of South Carolina, for the sum of $30,000. The judgment was founded on a promissory note made by William S. Gillett, in favor of James Higginbottom and William Provost, for $30,000, dated the 1st of June 1819, and payable on demand. The judgment was confessed on the 1st of June, as of the fourth Monday of March 1819. William S. Gillett was the acting executor of the last will and testament of his father, Doctor Elijah Gillett, by which a specific portion of the estate was devised to him, and other parts of the estate *were given to the children of the testator. By the terms of the will, the executors had *-power to sell such part of the estate devised, as it might be beneficial or expedient so to dispose of. William S. Gillett was also, at the time of the confession of the judgment, the guardian of his infant brothers and sisters, the devisees of his father of all the estate not especially devised to him. In December 1818, the personal estate of the testator, Elijah Gillett, was appraised at $56,475, and on the 22d day of March, William S. Gillett, after having selected or taken by lot a portion of the estate to which he considered himself entitled, sold, at public auction, a large number of the negroes, and all the personal estate of the testator. The proceeds of the sale exceeded $40,000, and William S. Gillett was the principal purchaser at the sale. The judgment for $30,000 was confessed for the use and benefit of the younger children of Elijah Gillett, the testator, all, at that time, minors; was for about the sum which was supposed to be in the hands of their guardian, after the sale; and was alleged to have been given in trust to the said Higgin-bottom and Provost, to secure to them their interest inthe estate of their father. 9 Pet.—3 33 49 SUPREME COURT [Jan’y Bank of Georgia v. Higginbottom. At the time of the confession of this judgment of the 1st day of June 1819, William S. Gillett was largely indebted to the complainants, and concerned in a mercantile house in Savannah, the affairs of which, a witness stated, he did not seem to consider very prosperous ; he did not represent the house to be bankrupt, or likely to become so ; but, on the contrary, he then and long afterwards, appeared confident that the affairs of the house would wind up satisfactorily. On the 21st of October 1821, William S. Gillett confessed a judgment in the circuit court of the United States for the South Carolina district, for the sum of $7849, in favor of the Bank of Georgia, under an agreement that time should be given to pay the amount thereof, viz., one, two, three and four years. The bill stated, that the debt due on that judgment being unpaid, the complainants, to have satisfaction thereof, lately sued out a fieri facias against William S. Gillett on it, under which a sufficient sum was made to _ pay the debt due on the *same ; but the proceeds of the said execu--■ tion were claimed under the judgment in favor of Higginbottom and Provost, for the payment and satisfaction of the same. The bill prayed for general relief, if it were at all material, the respondent would file the originals. The respondent protested against the jurisdiction of the court of Virginia, to operate on the lands in Kentucky, to compel conveyances, by any act done y the guardian of said Williams ; and that, if the decree was only to operate upon the said John R. Williams, the title of the complainants could 61 92 SUPREME COURT [Jan’y Caldwell v. Carrington. e • only be considered as commencing from the date of the alleged deed to said Sarah, of the 18th of March 1820, as this respondent was not bound to take notice of a verbal sale, or the proceedings in a foreign court, not having jurisdiction of the subject-matter. The answer of William Caldwell denied that any sale of the lands was made by John Williams to George Carrington, which was valid or binding; and if any was made, it was not reduced to writing, and was void by the statute of frauds ; and he pleaded the same statute. The answer stated a proceeding by the widow of George Carrington, to compel John W. Scott, the guardian of John R. Williams, to convey the land. He stated some transactions with John W. Scott relative to the land, and information to have been received by a person appointed by him to make inquiry about the land, and to make a purchase of part of the land, and that an agreement was made, for him with Scott and Paul Carrington for the land ; but afterwards, when prepared to pay the purchase-money for the same, he found Scott and Carrington had no title to the land they contracted to sell to him. Afterwards, John R. Williams came to *Kentucky. He consulted J several of the most skilful and learned lawyers in Kentucky, all of whom advised this defendant that the said Williams would hold the land ; that the claim of Carrington was null and void. This defendant did verily believe, that the said John R. Williams was the only lawful owner of said land, and that the claim of Carrington was fraudulently put up to cheat an infant; that he did accordingly purchase the said land from the said Williams, for the same price he was to have given the said Scott and Carrington, which was considered a full and fair consideration, and not a small and invaluable one, as falsely set forth in complainants’ bill. He stated, that he had not been party to any suit, in Virginia or elsewhere, between any of the complainants, or their ancestors, and the said John R. Williams; and consequently, as he believed, would not be bound by any decree pronounced by the courts of Virginia in any such case. He protested against the jurisdiction of the courts of Virginia to operate on the lands in Kentucky ; and if the decrees of the courts of Virginia could only operate on the person of the said John R. Williams, the title of the complainants could only be considei’ed as commencing from the date of the alleged deed from the said John R. Williams to Sarah Carrington, 18th of March 1820, as this defendant was not bound to take notice of verbal sales, or the proceedings of foreign courts who could not entertain jurisdiction of the subject-mattei. The answer of Isaac Caldwell admitted the purchase of part of the land as stated in the bill, from John R. Williams, under agreements for the purchase of the same. As to notice of the title of the complainants and of their proceedings to establish the same, the answer stated as follows : “This defendant states that, previous to his purchase of said lands west of Tennessee, he did see the record and proceedings of the Halifax county court, in Virginia, made in the suit decided in 1803, wherein George Carrington (the complainant’s husband) was complainant, and said John R. Williams, by his guardian, was defendant; that his object in examining said record an proceeding, originally, was, to ascertain in whom the best right to said land vested ; and at that time, this defendant was, for several considerations, desirous that the claim set up by the complainant should prevail J ut *941 upon exhibiting a full transcript of the *record of said suit to three 62 1835] OF THE UNITED STATES. 94 Caldwell v. Carrington. or four counsellors in this state, reputed the most learned in the law, he was advised by each of them, that John R. Williams would eventually succeed, under the land-laws of the country, against the claim under which the complainant alleges title ; and that the evidences of the purchase, charged by the complainant to have been made by George Carrington of said John Williams, were not sufficient to authorize and support a recovery against John R. Williams, the heir-at-law. Under this intelligence, this defendant, believing that he was purchasing the only right by which said land could be held, entered into the contract aforesaid with said John R. Williams. This defendant calls upon said complainant to produce and file complete transcripts of the several records and proceedings of the courts in Virginia, referred to in her bill. He denies that a knowledge of the record and proceedings, in the suit decided in 1803, would amount to notice of a superior equity in the complainant, or her ancestor or devisor, or that such notice would be obtained from the bill, answer and depositions in the latter suit, which were all the evidences upon that subject which this defendant had, at the time of his purchase aforesaid, from said John R. Williams ; for these documents, instead of presenting to the mind evidence of an equitable claim, go to repeal the very idea of its existence, as by the complainant’s own showing, in the bills and depositions, the contract under which she attempts to obtain said lands, is uncertain, illegal and void. This defendant believes that the complainant was satisfied of the vagueness and insufficiency of the decree of 1803, as she seems, about the year 1816, to have instituted another suit, founded upon the same contract, and to have abandoned the decree formerly pronounced. This defendant submits to the court, whether his rights to lands within this commonwealth are to be thus bound by the decree of a court of another state, in a suit to which he was not party ; and which decree, upon the face of the record, was predicated upon facts entirely insufficient to sustain it, under the laws of this state, whatever may be the laws or rules of decisions with the courts of such other state; and if the court should be of opinion, that this defendant is not bound by a decree pronounced in the state of Virginia, *subsequent to his purchase, or, at any rate, of which he had no knowledge until L subsequent to his purchase, he then hopes that the complainant may be put upon the proof of the purchase, if any, as is alleged by her to have been made by her devisor from said John Williams. He conceives, that the transfer and assignment made by said John R. Williams to said Sarah Carrington in 1820, can have no relation to, or sanctity attached to it, on account of the decree pronounced between those parties in Virginia, as that decree could only operate and be executed upon the person of said John R. Williams the thing which was the subject-matter of the decree, being without the control of the chancellor, and not subject to the laws of this state, or to be affected or operated upon by the process of this court; and that, therefore, the assignment obtained by this defendant and his copartners, being prior in time, should prevail against the pretended equity of said complain-, ant. The defendant is persuaded, that the assignment executed by said ohn R. Williams to the complainant was not obtained by process under t e decree aforesaid, but that said complainant, being aware of the inefficacy and illegality of said decree, has confederated with said Williams, for e purpose of defeating the prior and better claim of the defendants, and 63 95 SUPREME UOURT rjan’y Caldwell v. Carrington. for that purpose has induced said W illiams to execute the assignment dated in 1820. The respondent insists, that if any sale was ever made of the lands in question, by said John Williams to said George Carrington, that such sale was verbal, and not evidenced by any agreement or memorandum in writing ; and therefore, was void, under the statute to prevent frauds and perjuries, upon which he relies.” Witnesses were examined in support of the allegations in the bill, whose testimony is stated in the opinion of the court. No counter-evidence was offered by the respondents. On the 21st day of May 1832, the circuit court, by a final decree, ordered that the defendants do, by their joint or several deeds, on or before the 1st day of July next, by a sufficient deed, or by sufficient deeds, release and convey to the complainants all right and title which they have, either jointly or severally, in the several tracts of and referred to in the bill, and included in the deeds of John R. Williams to George Carrington, and also his deed * , to Sarah Carrington, with *special warranty against themselves and J all persons claiming under them ; and also, that they do, on or before the said day, severally or jointly, surrender to the complainants, their agent or attorney, possession of said tracts of land ; and to enable the complainants to take the possession, the court do direct and order that the clerk do, on the request of the complainants, at any time after the said 1st day of July, issue to them a writ or writs of habere facias possessionem, directed to the marshal of the district, whose duty it shall be to execute the same. The defendants prosecuted this appeal. The case was argued by Bibb and Hardin, with whom was Loughborough, for the appellants ; and by Jones, with whom was Coxe, for the appellees. For the appellants, it was insisted :—1. That the verbal contract of 1787 or 1788, alleged, was against the statute of frauds, and not such as courts of equity ought to enforce specifically. 2. That the proceedings and decree of Halifax, in 1803, did not constitute an equity; that those proceedings were inoperative and void. 3. That notice, in 1815, of those proceedings, did not convert them into an equity, but was notice of an illegal, insufficient claim ; dead in fact and in law ; proscribed by the statute of frauds, and extinguished by lapse of time. 4. That the proceedings and decree of 1817, and subsequently, in the courts of Virginia, did not bind the appellants, citizens of Kentucky, because they were not parties. 5. That notice of those proceedings, had in May and November 1818, cannot overreach the equities acquired by the appellants before such notice ; nor make them parties to those proceedings and decrees. 6. That the appellees have not made out any equity prior or superior to the equities of the appellants ; that the deeds of 1820, executed by John R. Williams, by force of the decree and attachment, are not evidence of a prior and superior equity on the part of the appellees, but posterior and inferior to the equities of the appellants. 7. .. That the appellants were in a predicament to re-examine *the decrees J of the courts of Virginia against John R. Williams, the appellants not being parties, nor concluded by those decrees. 8. That this court ought not to decree against these appellants barely upon the foot of the decrees against John R. Williams, but will examine the grounds of those 64 1833] OF THE UNITED STATES. 97 Caldwell v. Carrington. decrees, before they make a new one. 9. That there is no basis for divesting the appellants of their legal titles and possession, nor for calling into activity the extraordinary powers of a court of equity ; but abundant reasons for refusing to interfere against the interest of the appellants. The decree of the circuit court is erroneous : 1. In divesting the title and possession of William Caldwell, acquired under his contract of 30th of August 1815, and his patent of 12th of November 1816. 2. In divesting Samuel Brents of his equity undei’ his contract of 31st of August 1815 ; and also in divesting his title and possession to 850 acres, acquired thereunder by his deed of 1818. 3. In divesting the defendants, William Caldwell, Isaac Caldwell and Samuel Brents, of their equities and legal advantages under their joint contract of 6th of January 1818. 4. In divesting Brents of his legal title acquired under his deed for 850 acres, and his other inter-terests, without any allowance for services and expenses in surveying and obtaining the grants. 5. In sustaining the bill and making a decree, when the court should have refused to interfere, but leave the complainants to their remedy upon the deeds of John R. Williams. Upon the effect of the proceedings and decree of the court of Halifax county, Virginia, upon the rights and interests of John R. Williams, the appellants’ counsel cited, Bond v. Hendricks, 1 A. K. Marsh. 398, 471, 592 ; Delano v. Jopling, 1 Litt. 417 ; Estill'& Heirs .n. Clay, 2 A. K. Marsh. 200; Moore n. Farrow, 1 Ibid. 41 ; 3 Bibb 528, 525 ; 4 Ibid. 11, 96 ; 1 Call 1, 4; 1 T. B. Monr. 72, 109 ; 5 Litt. 80 ; 3 Bibb 525, 528 ; 2 Atk. 531 ; 1 P. Wms. 504 ; 2 Ibid. 403. As to the effect of the statute of frauds on a contract by parol for the sale of lands, the appellants’ counsel cited, *1 Munf. 510, 518 ; 1 Bibb 203, 207, 209 ; 3 A. K. Marsh. 445 ; * 1 Hen. & Munf. 92, 110; 5 Munf. 308 ; 3 A. K. Marsh. 555; 3 T. B. *- 98 Monr. 41 ; Miller n. McIntire, 6 Pet. 67 ; 3 Litt. 264 ; 3 A. K Marsh. 445. Marshall, Ch. J., delivered the opinion of the court.—This is an appeal from a decree pronounced in the court of the United States for the district of Kentucky, directing the appellants to release and convey to the appellees all the right and title which they hold, jointly or severally, in the tracts of land in the bill mentioned, with special warranty against themselves. The bill, filed in January 1824, by Sarah Carrington, widow and devisee of George Carrington, deceased, claims from the defendants, as purchasers from John R. Williams, heir-at-law of John Williams, deceased, who is not an inhabitant of Kentucky, and therefore, not a party to the suit, all the military lands of the said John Williams, lying in the district of Kentucky, amounting to 4000 acres, which land was sold, as is alleged, by John Wiliams,. in his lifetime, to George Carrington, the testator of the plaintiff in the circuit court. This claim is founded on a decree pronounced by the county court of Halifax, in the state of Virginia, sitting in chancery, in ovember 1817, on a bill filed in November 1815, by the said Sarah Car-rmgton against the said John R. Williams, and on a deed of conveyance made, on the 18th day of March 1820, by the said John R. Williams to the said Camugton, *n Pursuance thereof ; this decree was affirmed on appeal, e bill also refers to a suit brought by George Carrington, in his lifetime, guardians of the said John R. Williams, while an infant, in w ic a decree was obtained, directing the guardian of the said John R* 9 Pet.—5 45 98 SUPREME COURT [Jan’y Caldwell v. Carrington. Williams to convey and assign the entries and surveys of the said military lands to the said George Carrington. The plaintiff prays that these decrees, with the proceedings on which they were founded, and the conveyances made in pursuance of them, should be taken as a part of his bill. The bill filed in the county court of Halifax, in November 1815, charges that George Carrington, in his lifetime, exchanged certain lands, lying in the said county, with John * Williams, deceased, for a military claim J of 4000 acres to which the said Williams was entitled. That the said George, by the direction of the said Williams, caused his land in Halifax to be conveyed to a certain John Camp, who was put in possession thereof; but the patents for the military lands not having been issued, no conveyance was made of the legal title to them. Some time after the death of the said Williams, the said Carrington instituted a suit in the court of Halifax, against John Robert Williams, then an infant, the only child of the said John Williams, to obtain an assignment of the entries and surveys for the said four thousand acres of military land. As the bill filed in that suit contains a full statement of the contract, with a description of the land it claims, the plaintiff prays that it may be taken as a part of the present bill, as fully as if literally inserted. On the 23d of May 1803, a decree was pronounced in the said suit, which, among other things, directed a certain John B. Scott, the then guardian of the said John R. Williams, to assign the entries and surveys of the said military lands to the said George Carrington, so as to enable him to obtain patents therefor in his own name ; and did further order that the said John R. Williams should, on attaining his age of twenty-one-years, release all his right to the said George Carrington. The plaintiff prays that this decree and all the proceedings in the suit may be taken as a part of his bill. The assignments directed by the decree were made by the said John B. Scott, but George Carrington departed this life soon afterwards, not having obtained the patents. By his last will, he devised these lands to the plaintiff, who has applied for patents, but is informed at the land-office, that the assignment of the said Scott does not authorize the register of the land-office in Kentucky to issue them. The said John R. Williams having attained his full age, not only refuses to release his claim and to assign the said entries and surveys, but has gone to Kentucky with a view of selling the said lands. The bill prays for an assignment of the entries and surveys, and a release of the right of the said John R. Williams, and that he may be enjoined from performing any act which may disable him from making a complete title to the plaintiff. * , The defendant in his answer denies the contract, and adds, tn if such a contract did exist, it was verbal, that no note or memorandum thereof was signed by either of the parties, and that it is void by the statu e of frauds which he pleads. A general replication was filed, and deposition were taken, after which the following entry was made : “And now, at t i day, to wit, at a court holden for the said county at the court-house thereo , on the 27th day of October 1817, came the parties, by their counsel, y whose consent this case was this day heard upon the bill, answer, examin tions of witnesses, the bill, answer, examinations of witnesses, in a cause formerly depending in this court between George Carrington, plaintiff, aD the defendant, by his guardian, defendant, and was argued by counsel, o consideration whereof, it is decreed and ordered, that the defendant do for 66 1835] OF THE UNITED STATES. Caldwell v. Carrington. 100 with assign to the plaintiff, in a proper and legal manner, the surveys and other title papers in the original bill mentioned. The defendant having appealed from this decree, it was affirmed at a superior court of chancery, held at the town of Lynchburg, on the 19th day of May 1818.” In pursuance of these decrees, the said John R. Williams did, on the 18th day of March, in the year 1820, by his indenture of that date, convey to the plaintiff the military lands in the bill mentioned, consisting of one tract of 500 acres, lying on Beaver creek ; also of one tract of 350 acres, likewise lying on Beaver creek; also of one other tract of 1000 acres, lying on RusseFs creek; also of one other tract of 150 acres, lying on the first creek emptying into Little Barren ; also of one other tract of 1000 acres, lying in the county of-----------, being the tract of land entered by John Williams on the 2d of August 1784 ; and also of one other tract of land, containing 1000 acres, lying in the county of---------, entered on the 10th of August 1784. The bill filed in this cause farther charges, that Samuel Brents, William Caldwell and Isaac Caldwell, citizens of the state of Kentucky, with full knowledge of the plaintiff’s claims, entered into a contract, on or about the 6th day of January 1818, with the said John R. Williams, for the purchase of the two tracts of 1000 acres each, lying south of the Tennessee, for which entries had been made by the said John Williams, in his lifetime, on the 2d and 10th of August 1784 ; and that the said William *Caldwell, „ on the 30th of August 1815, with full knowledge of the right of the *-plaintiff, entered into a contract with the said John R. Williams, for the purchase of the tract of 1000 acres, near the town of Columbia, in the county of Adair.; and that the said Samuel Brents also, with the full knowledge of the plaintiff’s title, hath entered into a contract with the said John R. Williams, for the said tracts, containing 500 acres, and 350 acres, lying on Beaver creek, in the county of---------, and for the tract containing 150 acres lying on the first creek emptying into the Little Barren, in the county of---------------------------------------. Under these contracts, and other papers obtained from the said John R. Williams, the said Samuel Brents, William Caldwell and Isaac Caldwell, who are made defendants, have obtained legal titles to the said military surveys, and have also obtained assignments or transfers of the entries for the two tracts of 1000 acres each, lying south of the Tennessee, for which they will obtain patents, unless restrained by order of this court. The bill prays that the defendants may be decreed to convey to the plaintiff, and for general relief. The defendants filed separate answers, each denying the contract, insisting that if any contract existed, it was by parol, and consequently, void by the statute of frauds and claiming to be purchasers without notice of any equity in the plaintiff. The several defences are now to be examined. The proceedings in the county court of Halifax, in the suit brought in v a5e Perfe°tly regular ; and, according to the constitution and laws of ne United States and the decisior^ of this court, are allowed the same full aith and credit in the courts of Kentucky, that they would receive in irgmia. If the decree pronounced by the court of Halifax in 1817, and a ter wards affirmed in the superior court of chancery at Lynchburg, would ^ave been enforced in Virginia ; or if, had it been pronounced in Kentucky, 1 would have been enforced in Kentucky, then the decree for enforcing it 67 101 SUPREME COURT [J an’y Caldwell v. Carrington. which was pronounced by the court of the United States sitting in Kentucky, is correct. The first point to be considered is the contract itself. It is not in writing, and consequently, admits only of parol evidence. Paul Carrington, the father of George, deposes, that he owned a tract of land, in the county of * 1 Halifax, called Dry Branch, *containing 596 acres, the whole of which, J at the close of the revolutionary war, he gave to his son George, put him in possession, delivered the title papers, and directed him to prepare a deed. In 1787 or 1788, George requested the deponent to convey the land to John Williams, to whom he had sold it, in exchange for his military lands in Kentucky. Some little time afterwards, George requested the witness to convey the land to George Camp, to whom Williams had sold it. He conveyed to Camp. Some short time afterwards, Williams and George Carrington were both at the house of the deponent, when Williams stated, that he had purchased the land from George Carrington, and sold it to Camp for 400Z. He has also frequently heard George Camp say, that he purchased the land from Williams for 400J. Has never heard Williams say he gave his military lands for the Dry Branch tract. Clement Carrington has paid the taxes on the. Kentucky military lands, on account of the estate of George Carrington, ever since they were taxed. Nathaniel Terry was acquainted with the Dry Creek tract, and has heard Williams say, he had given his western lands for it. He supposed Williams to have been in possession of the Dry Branch tract, but he never worked hands on it. Carrington did not work it, after the sale to Williams, farther than to finish his crop. James Eastham has frequently heard Colonel John Williams say, that he had given his lands in the western country to George Carrington, in exchange for the Dry Branch tract, which he afterwards sold to George Camp. William Yancy has heard John Williams say, that he purchased the Dry Branch tract from George Carrington, and had given his claims to land in the western country in payment for it. He has been frequently in company with the said John Williams, when this trade was the subject of conversation, and Williams always gave the same account of it. Williams sold the Dry Branch tract to George Camp. Thomas Roberts well recollects to have heard John Williams say, that he had exchanged his Kentucky lands with George Carrington for his Dry Branch tract. The depositions of William Yancy and Thomas Roberts were taken in the suit brought against the guardian of John R. Williams; *but as they *103] were with the bill of 1815, and read by consent at the hearing, they are supposed to form a part of the record in this cause. No countertestimony was offered. We think the exchange by John Williams of his military land for the Dry Branch tract is fully established, and proceed to inquire into the valid' ity of the contract. The statute of frauds, of which the defendants claim® the benefit, avoids parol contracts for land, and will, unquestionably, avoi that between John Williams and George Carrington, unless the transaction between the parties take the case out of the statute. The appellees mai i tain the affirmative of this proposition, and contend, that the comply execution of the contract on the part of George Carrington, by conveying the Dry Branch tract to the vendee of John Williams, supplies, in law, want of a memorandum in writing. For a considerable length of ’ 68 1835] OF THE UNITED STATES. 103 Caldwell v. Carrington. this principle appeared to be firmly settled in the court of chancery in England. Maddock, in his Treatise on Chancery, vol. 1, p. 301, says, “if, therefore, it be clearly shown, what the agreement was, and that it has been partly performed, that is, that an act had been done, not a mere voluntary act, or merely introductory or ancillary to the agreement, but a part execution of the substance of the agreement, and which would not have been done, unless on account of the agreement, an act, in short, unequivocally referring to, and resulting from the agreement, and such that the party would suffer an injury amounting to fraud, by the refusal to execute that agreement; in such case, the agreement will be decreed to be specially performed. 2 Bro. C. C. 140 ; 1 Ibid. 412 ; 3 Atk. 4 ; 2 Anstr. 424 ; Ambl. 536 ; 1 Sch. & Lef. 41 ; 14 Ves. 386. This principle has been lately questioned in England, and some of-the judges have thought, has been carried too far; but it has not, we believe, been overruled. It was, undoubtedly, supposed, in Virginia, to be the sound construction of the statute, when this contract was made ; and as the land then lay in Virginia, Kentucky being then a part of that state, this construction forms the law of the contract. In affirming the decree of the 27th of October 1817, the chancellor said, “ the court being of opinion, that this is not a case *embraced by the act against frauds and perjuries, doth adjudge, L &c.” A change of the law afterwards made in Kentucky, cannot affect contracts previously valid. It remains to inquire, whether the appellants are to be considered as purchasers without notice of the equity set up by the appellees. The defendants do not deny notice, in those explicit terms which courts of equity require. They deny notice of a valid claim ; but no such notice as ought to put them on inquiry. They are the joint purchasers of the two tracts of 1000 acres each, lying south of Tennessee river. They purchased these tracts from Williams, on the 6th of January 1818. The articles of that date recognise the claim of Carrigton’s heirs, and contain a stipulation on the part of Williams, “ to use due diligence in having it extinguished and quieted.” William Caldwell purchased the tract of 1000 acres in the county of Adair, on the 30th day of August 1815. The contract of that date contains this stipulation : “ and the said Williams agrees that the said Caldwell shall not be bound to pay any further part of the consideration aforesaid, except what is this day paid, until he, the said Williams, shall settle the dispute between himself and the heirs and representatives of George Carrington, deceased, concerning the title to the said land.” A contract was entered into between Williams and Samuel Brents, on the 31st of August 1815, by which Brents engages for a part of the land, “ to attend to the securement of the titles to the said lands,” “ according to the laws of the state, by surveying, registering and patenting the same, or by doing such other acts as may be necessary for the purposes aforesaid.” He says, in his answer, that on the 12th of November 1816, patents issued to the said John R. Williams, for two tracts on Beaver creek, the one for 350 acres, and the other for 500 acres. The defendant agreed to take the tract of 350 acies, and 150 acres, part of the 500 acre tract, for his services. Afterwards, on the 5th of January 1818, he contracted for the residue of the two facts, for which he received a conveyance, dated on the same day. The answer proceeds, “ at the time of receiving the said conveyance, or at any 69 *105 SUPREME COURT [Jan’y Caldwell v. Carrington. time *before, this respondent had no knowledge or information of any valid claim to said land, by any other person than the said John R. Williams. This respondent does not now recollect of hearing anything of the claim of the complainants, before his conveyance ; but had only heard that some verbal or illegal claim was set up, in some bill filed in some county court of Virginia ; of which verbal claim this respondent did not think himself bound to take notice.” He does not recollect, that the claimant was named Carrington, but he does recollect having heard that a suit was instituted in one of the county courts in Virginia ; but as the contract was by parol, he did not think himself bound to notice it. Now, he knew, or might have known, that the suit was instituted in the county of Halifax, that being the residence of Williams, whose agent he was, and who was the defendant in the suit. He could have received full information from Williams himself, who never attempted to conceal the claim. His conveyance of the 2000 acres of his claim, lying south of the Tennessee river, dated the day after his conveyance to Brents, contains a stipulation respecting the claim of Carrington’s heirs, showing plainly that the claim was previously well known to the parties. His deed to William Caldwell shows, that it was known as early as 1815. Isaac Caldwell’s claim is limited to his third part of the 2000 acres south of the Tennessee, conveyed on the 6th of January 1818. In addition to the notice contained in the deed, he states in his answer, that he had seen the proceedings in the suit brought by Carrington against Williams, in which the decree of 1803 was pronounced ; had consulted eminent counsel on it, and had been advised that the title of Williams would prevail over that set up by Carrington. Under this advice, he purchased. The record contains other evidence, to which it is thought unnecessary to refer. In addition to these unequivocal proofs that the appellants had received notice of the contract made by Carrington with John Williams, it is worthy of observation, that, with the exception of Brents, they purchased equitable titles, and were bound to notice any prior equity. It is too clear for controversy, that the plaintiffs placed full confidence in the protection furnished by * _ the statute of frauds ; *and believed that the contract made between Carrington and Williams, being by parol, was void, notwithstanding its full execution on the part of Carrington. There is no error in the decree of the circuit court, and it is affirmed, with costs. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel : On consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed, with costs. 70 1835] OF THE UNITED STATES. •107 * William A. Bradley, Plaintiff in error, v. The Washington, Alexandria and Georgetown Steam-Packet Company. Damages. The original writ was issued out of the circuit court of the district of Columbia, dated 2d of December 1831, and was returned “ executed,” on the first Monday of the same December, the return-day of the succeeding term'; the defendant appeared by his attorney, on the return-day, and obtained a rule on the plaintiffs to declare against him. The circuit court, on the trial of the cause, directed the jury to find damages against the defendant, for the hire of a steamboat, for which the action was brought, from the 20th of November 1831, to the 6th of February 1832, whereas, the suit was instituted on the 2d of December 1831. These instructions were erroneous, as damages were to be given to a time long posterior to the institution of the action. Error from the Circuit Court for the District of Columbia, and county of Washington. On the 2d of December 1831, a writ of capias ad respondendum, in case, was sued out of the circuit court, by the Washington, Alexandria and Georgetown Steam-Packet Company against William A. Bradley, the plaintiff in error, and on the return-day of the writ, the first Monday in December 1831, the defendant appeared, and a rule on the plaintiffs to declare was entered, on the motion of his attorney. Further proceedings in the case were, by consent of the parties, continued until the fourth Monday in March 1833, when a declaration in indebitatus assumpsit was filed ; in which it was alleged, that the defendant, William A. Bradley, was indebted to the plaintiffs, on the 7th of February 1832, in the sum of $2765, for the use and hire of the steamboat Franklin. The defendant pleaded non assumpsit, and the case was tried in November 1833. The jury, under the directions of the court, gave a verdict for the plaintiffs for $2415, upon which judgment was entered, and the defendant prosecuted this writ of error. On the trial of the cause, the following bill of exception was tendered and sealed by the court. “ Upon the trial of this cause, the plaintiffs, to sustain the issue *on their part, joined between the parties aforesaid, gave in evidence, and •-read to the jury, a paper, dated 19th November 1831, signed by William A. Bradley, the said defendant, in the words and figures following, viz : MI agree to hire the steamboat Franklin, until the Sydney is placed on t e route, to commence to-morrow, 20th instant, at thirty-five dollars per ay, clear of all expenses, other than the wages of Capt. Nevitt. 19th Nov. 1831. W. A. Bradley. dat t '^e PaPer PurPor^ng to be an acceptance thereof, of the same ( “Washington City, Nov. 19th, 1831. P V n Part the Washington, Alexandria and Georgetown Steam-ac et Company, I agree to the terms offered by William A. Bradley, o squire, for the use of the steamboat Franklin, until the Sydney is placed e route to Potomac creek, which is thirty-five dollars per day, clear of on ex^enses’ °ther than the wages of Capt. Nevitt, which are to be paid by r company, Gunton, President. And also a paper addressed by said defendant to Pishey Thompson, 71 108 SUPREME COURT [Jan’y Bradley v. Steam-Packet Co. one of the directors of the Steam-Packet Company, and by him communicated to plaintiffs in the words following, to wit : i( Pishey Thompson, Esq. * Washington, Dec. 5, 1831. “Dear SirI will thank you to advise the President and Directors of the Washington, Alexandria and Georgetown Steam-Packet Company, that the navigation of the Potomac being closed by ice, we have this day commenced carrying the mail by land, under our winter arrangement; and have, therefore, no further occasion for the steamboat Franklin, which is now in Alexandria, in charge of Capt. Nevitt. The balance due your company, for the use of the *Franklin, under my contract with Doctor Gunton, will be *1091 . . • , , 7 J paid, on the presentation of a bill and receipt therefor. With great respect, your obedient servant, W. A. Bradley.” “ Pishey Thompson, Esq., Present.” “And the reply thereto from William Gunton, President of the Steam-Packet Company, to the defendant, in the words following, to wit: “Washington City, Dec. 6, 1831. “ Sir :—Your letter of the 5th instant to Mr. P. Thompson, has been this afternoon submitted to the Board of Directors of the Washington, Alexandria and Georgetown Steam-Packet Company, at a meeting holden for the purpose. After mentioning that the navigation of the Potomac is closed by ice, and that you had commenced carrying the mail by land, under your winter arrangement, you have therein signified, that you have no further occasion for the steamboat Franklin, and that she was then in Alexandria, in charge of Capt. Nevitt. The agreement entered into by you contains no clause making its continuance to depend on the matters you have designated, but on the contrary an unconditional stipulation to ‘ hire the Franklin, until the Sidney is placed on the route and I am instructed to inform you, that the board cannot admit your right to terminate the agreement on such grounds, and regard it as being still in full force, and the boat as being in your charge. However disposed the board might havq been to concur with you in putting an end to the agreement, under the circumstances you have described, if the company had not been already in litigation with you and your colleague, for the recovery of a compensation for the use of the Franklin, under another contract,-to the strict letter of which a rigid adherence is contended for on your part, notwithstanding it. had undergone a verba modification ; the board could not but recollect this, and be influence thereby. Yours, respectfully, „ “ William A. Bradley, Esq. W. Gunton, President. * , *“ And further proved, by the testimony of William Chicken, a HOJ competent witness, and duly sworn in the cause, that he was employe as engineer by defendant, on board the steamboat Sydney, mentioned in t ® foregoing papers ; that said steamboat was in Baltimore, in the mont o November 1831, and continued there until the 26th day of January 18 > when she left that port for Washington city, and after several interruptions and delays, arrived at Washington on the 6th of February, and was p aC^ on the route to Potomac creek, on the 7 th of February 1832 ; and that steamboat Sydney belonged to defendant, and that she was not finis e , 72 1835] OF THE UNITED STATES. 110 Bradley v. Steam-Packet Co. as to be able to start from Baltimore, until the 25th of January. And thereupon, the said plaintiffs claim hire of the said steamboat Franklin, from the 20th day of November 1831, to the 6th day of February 1832, seventy-nine days, at $35 per day, allowing credit for $350 as paid thereon, by the said defendants, and leaving a balance of $2415. “ After which evidence had been given on the part of plaintiff as aforesaid, the defendant, to support the issue on his part above joined, offered to prove, by competent witnesses, that for several years immediately preceding the date of said contract, he had been, and was still, contractor for the transportation of the United States mail from Washington to Fredericksburg ; that the customary route of said mail was by steamboat, from Washington to Potomac creek ; thence by land to Fredericksburg ; in which steamboatpassengers were also usually transported on said route ; that during all that time, the defendant had used a steamboat belonging to himself on said route ; that he also kept an establishment of horses and stages for. the transportation of said mail, all the way by land from Washington to Fredericksburg, at seasons when the navigation of steamboats was stopped by ice and had been obliged, for a considerable portion of every winter, during the time he had been so employed in the transportation of the mail, to use his said stages and horses, for the transportation of the mails, all the way by land to Fredericksburg, in the meantime.laying up his steamboat. That just before the date of said contract, the defendant’s own steamboat, usually employed as aforesaid on said route, had been disabled, and the defendant was at the time about completing a new steamboat, called the Sydney, which *had been built at Washington, and sent round to Baltimore, for the purpose of being fitted with her engine, and other L equipments necessary to complete her for running on said route ; and that she lay at Baltimore, in the hands of the workmen there, at the date of said contract. That on the morning of the 5th of December 1831, the navigation between Washington and Potomac creek became obstructed by ice, and the steamboat Franklin, on her way from Potomac creek to Washington, while pursuing the said route under said contract, was stopped at Alexandria by ice, where the mail was taken out of said boat and sent up to Washington by land, and that said steamboat lay at Alexandria, frozen up in the harbor, from that time till the 5th of February 1832 ; that at the same time, the navigation of the Potomac became obstructed as aforesaid, the navigation at and from Baltimore became also obstructed from the same cause, and the said steamboat Sydney was also frozen up in the basin at altimore, before she had been completely equipped with her engine ; that at the time she was so frozen up, she wanted nothing to complete her equip-nient but the insertion of two pipes, a part of her engine, which pipes had een made, but not then put in place, the completing of which would not ave required more than two days, and then the boat would have been in complete order for being sent round to Washington, and put upon said oute ; but the ice having interposed, it was deemed by the workmen, and ose in charge of the boat, that the insertion of said pipes ought to be postponed till the navigation was clear ; that in January 1832, the said pipes 1 f epnSerted’ and the said boat, being completely equipped for her voyage, f t1Ta^^more f°r Washington, as soon as the state of the ice made it prac- a e to attempt that voyage ; was again stopped by the ice, and obliged 73 Ill SUPREME COURT. [Jan’y Bradley v. Steam-Packet Co. to put in at Annapolis, whence she proceeded to Washington as soon as the ice left it practicable to recommence and accomplish the voyage, and arrived at Washington on the 6th of February 1832, and was, the next day, placed by defendant on said route ; that during the whole of the period from the first stopping of the navigation as aforesaid, until the said 6th of February, the defendant had abandoned the said route to Potomac creek, and prosecuted the land route from Washington to Fredericksburg. *1121 ^hat was known to and understood by plaintiffs, at the *time J that the contract in question was made, and was a matter of notoriety, that as soon as the navigation should be closed by ice, the United States mail from Washington to Fredericksburg would have to be transported all the way by land carriage, instead of being transported by steamboat to Potomac creek, and thence by land to Fredericksburg; and that the said steamboat Franklin would not be required by defendant, and could not be, under said contract, when the navigation should be so closed. That it was communicated to the plaintiff by defendant, or his agent, before the time of making said contract, that defendant intended to keep said steamboat in use under said contract, so long as the navigation remainded open, and no longer. To the admissibility of which evidence, the said plaintiff, by his counsel, objected, and the court refused to permit the same to go to the jury, but at the instance of plaintiffs gave the following instruction, viz : “ That if the jury shall believe, from the evidence aforesaid, that the said defendant did, on the 19th day of November 1831, write to said plaintiff the said paper of that date, bearing his signature, and that said plaintiff did accept the same, by the said paper of the same date, and that said defendant and plaintiff did respectively write to each other the papers bearing date the 5th and 6th of December 1831, and that the said steamboat Sydney did, in fact, first arrive in the Potomac river, on the 6th of February 1832, and was placed on the route to Potomac creek, mentioned in the said evidence, on the 7th of February 1832, that then the said plaintiff is entitled to recover, under said contract so proved as aforesaid, at the rate of $35 per diem, from the said 20th of November 1831, to the said 6th of February 1832, both inclusive.” The case was argued by Jones, for the plaintiff in error; and by Coxe, for the defendants. Jones, for the plaintiff in error.—The question, whether plaintiff could recover in this action the per diem hire of the boat, accruing after action brought, is not one of variance between the writ and declaration, nor of any *1131 vice either in the writ or declaration, whereof advantage *could J be taken by plea in abatement, or any other plea. The date of the contract laid in any money count, is wholly immaterial; and any special plea, traversing the date, would be demurrable, as tendering a wholly immaterial issue. The count may assume any date, even a day after its own date, or a date one hundred years before ; yet lay no foundation for any plea bringing the date in any manner in issue : if one hundred years preceding the suit were assumed, a defendant could not demur as to a claim prima facie barred by limitations. The plea of non assumpsit put nothing in issue but the substance of the count—a contract or debt recoverable in this action, no matter’ of what date : the date is a mere question of evidence under the 74 1835] OF TSE UNITED STATES. US Bradley v. Steam-Packet Co. general issue, and that evidence must show a subsisting debt, at the time of action brought; no matter when the debt accrued, whether on the day laid in the count or any other. In this case, then, the plaintiff was let into the broadest proof, under the general issue, of a cause of action substantially conforming with that laid in his count, no matter of what date, so the cause of action accrued and was consummate at the time of action brought. That is the necessary limitation of time understood, indispensable, among the very elements in every action, whether for contract or tort; a consummate cause of action, at the time of action brought; and there is no way in which the question can, in an action of assumpsit, be regularly raised, in any form of special pleading. If the defendant were to plead to the count specially, that the cause of action did not arise till after action brought, it would amount to the general issue, and be demurrable ; cl fortiori, if he tendered any plea, going to traverse, or in any way put in issue, the date of the transaction. Whether a cause of action, substantially corresponding with that laid in the count, accrued before action brought, is involved in the terms of the general issue. The specific objection here, is not any defect of form or substance in either writ or declaration, but a manifest error in the final instruction from the court to the jury, that it was competent for the plaintiff, in an action of assumpsit, to recover on a cause of action accrued after action brought. The objection goes fundamentally to the reach and competency of the particular remedy. *Coxe, for the defendants.—The point now made was not pre-sented in the court below ; had it been, the difficulty would have been L removed by evidence which would have shown the understanding of the parties to the suit, both being desirous of a decision on the merits and law of the case. There is nothing in the exception taken in the circuit court, to show when the suit was instituted, and this is only to be known by looking at the writ, on which it is stated that it was issued on the 2d of December 1831. The declaration was filed in 1833, and states this case as it really existed—that the defendant was indebted to the plaintiffs on the 7th of February 1832. If there was a valid objection to the declaration, it should have been made in the court below ; it is now too late. The objection is not maintainable on any grounds. The declaration sets out a good cause of action ; the court gave the case to the jury on the declaration, and they pronounced a verdict upon it. Now, it is asked to go into the record, and to look at the writ and declaration, for matters not stated in the exception. Before this court, the plaintiff in error is estopped from this, by his exception. If an exception is not taken in the court below, it cannot be made in an appellate court; which will look at nothing but that which was presented to the judges in the circuit court, whose decision is brought up by exceptions for revision. 13 Johns. 576; 1 Sch. & Lef. 712 ; 1 Wend. 415. .After pleading, advantage cannot be taken of a variance between the writ and the declaration. 12 Johns. 434. That which is pleadable, can never be made available in error. If pleadable in abatement, it can only be after oyer. Chitty’s Pleading. The writ constitutes no part of the record ; the 75 114 SUPREME COURT [Jan’y Bradley v. Steam-Packet Co. case begins with the declaration. 1 Chit. Plead. 277-9 ; Steph. Plead. 68-9 ; Duvall v. Craig, 2 Wheat. 55 ; 11 Ibid. 388. The writ should not have been introduced into the record ; it is no part of it. 1 Chitty 295. Marshall, Ch. J., delivered the opinion of the court.—This case depends * , on the correction of an instruction given *by the circuit court to the J jury, at the trial of the cause, to which instruction the defendant in that court excepted. The suit was instituted by the Washington, Alexandria and Georgetown Steam-Packet Company, for the hire of the steamboat Franklin, during the absence of the steamboat Sydney, the parties having disagreed with respect to the time for which the contract was made. After the testimony was concluded, the court instructed the jury, that if they “shall believe, from the evidence aforesaid, that the said defendant did, on the 19th day of November 1831, write to the said plaintiff, the said paper of that date, bearing his signature, and that the said plaintiff did accept the same, by the said paper of the same date, and that the said defendant and plaintiff did respectively write to each other the papers bearing date the 5th and 6th of December 1831, and that the said steamboat Sydney did, in fact, first arrive in Potomac river, on the 6th of February 1832, and was placed on the route to Potomac creek, mentioned in the said evidence, on the 7th of February 1832, that then the said plaintiff is entitled to recover, under said contract so proved as aforesaid, at the rate of $35 per diem, from the said 20th of November 1831, to the said 6th of February 1832, both inclusive.” The defendant excepted to this instruction, and has sued forth a writ of error to the judgment, which was rendered on the verdict of the jury. The original writ appears in the record, and bears date the 2d day of December 1831. It was returned executed, on the first Monday in December, that being the first day of the succeeding term, the day to which it was made returnable. The following entry was made on that day : “ and the said William A. Bradley, being called, appears in court here, by Joseph H. Bradley, his attorney, and thereupon, the said William A. Bradley, by his said attorney, prays, that the plaintiffs may declare against him, the said defendant, in the plea aforesaid ; whereupon, it is ruled by the court here, that the said plaintiffs declare,” &c. One objection taken by the plaintiff in error to the instruction given by the circuit court is, that they directed the jury to find damages for the hire of the steamboat Franklin, from the 20lh of November 1831, to the 6th of February 1832, whereas, the suit was instituted on the 2d of December 1831. *The counsel for the defendant does not contend, that the hire of the Franklin could be estimated, or damages given, to any time posterior to the institution of the suit, but he insists, that the writ is only intended to bring the party into court, and unless spread on the record by pleading, is no part of it. Without entering into this inquiry, it is to be observed in the present case, that the defendant appeared in the circuit court, in December 1831, and gave a rule to declare. These facts are entered on the record and must be noticed. This court, therefore, cannot fail to perceive that the jury was instructed to give damages to a time long posterior to the institution of the suit. The judgment is reversed and the cause remanded, with directions to award a venire facias de novo. 76 1835] OF THE UNITED STATES. Delassus v. United States. 116 This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel: On consideration whereof, it is adjudged and ordered by this court, that the judgment of the said circuit court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo. *Charles Dehault Delassus, Appellant, v. United States. [*117 Missouri land-claims.—Spanish treaty. A claim was made by C. D. D., by a petition filed in the district court of the United States for the district of Missouri, under the act of congress of 25th May 1824, “ enabling the claimants to lands within the limits of the state of Missouri, and territory of Arkansas, to institute proceedings to try the validity of their claimsthe tract of land claimed was a league square, and was granted to the father of the petitioner, by Don Zenon Trudeau, lieutenant-governor of the province of Upper Louisiana, on petition addressed to him for that object; the decree for that purpose being dated 1st April 1795: the land was situated on a branch of the river St. Francis, &c.; the decree ordered the captain-commandant of the post of St. Genevieve to put the grantee in possession of the land, which was done on the 15th of the same month; it was surveyed on the 14th of December 1799. The petition stated, that all the laws for the preservation of his rights had been observed; that his father was dead, and the title vested in him, and prayed that it might be enforced; regular documents in support of the concession accompanied the petition; and among them, a letter from the Baron Carondelet, governorgeneral of Louisiana, recommended the grant to be made by the Lieutenant-Governor Trudeau, and stating that the object of the petitioner was to open lead-mines, and that he had contracted with the intendancy to deliver a quantity of lead; after the concession should be made by the lieutenant-governor, the grantee was to present a memorial to the governor-general to have a decree confirming the same. The district court of Missouri refused to confirm the grant, and the petitioner appealed to this court; the grant was confirmed, and the decree of the district court reversed. The act of 25th May 1824, gives the district court authority to hear and determine all questions arising in any cause brought before it, by the petition of any person claiming lands within the state of Missouri, “by virtue of any French or Spanish grant, concession, warrant or order of survey, legally made or issued before the 10th day of March 1804, by the proper authorities, to any person or persons resident in the province of Louisiana, at the datp thereof, and which was protected and secured by the treaty between the United States and France of the 30th of April 1803, and which might have been perfected into a complete title, under and in conformity to the laws and usages and customs of the government under which the same originated, had not the sovereignty of country been transferred to the United States.” The stipulations of the treaty ceding Louisiana to the United States, affording that protection or security to claims under the French of Spanish government to which the act of congress refers, are in the first, second and third articles; they extended to all property, until Louisiana became a member of the Union; into which the inhabitants were to be incorporated as soon as possible, “ and admitted to all the rights, advantages and *immunities of citizens of the United States.” The perfect inviolability and security of property is among these L rights. The right of property is protected and secured by the treaty, and no principle is better settled in this country, than that an inchoate title to lands is property. This right would have been sacred, independent of the treaty; the sovereign who acquires an inhabited country, acquires full dominion over it; but this dominion is never supposed to divest the vested rights of indi-viduals to property. The language of the treaty ceding Louisiana, excludes any idea of inter-feting with private property. he concession to the petitioner was legally made by the proper authorities. A grant or conces- 1 For a further decision, resulting in another reversal, see 13 Pet. 89. 77 118 SUPREME COURT Delassus v. United States. [Jan’y sion made by that officer, who is by law authorized to make it, carries with it primâ fade evidence that it is within his powers ; no excess of them, or departure from them, is to be presumed ; he violates his duty by such excess, and is responsible for it ; he who alleges that an officer intrusted with an important duty has violated his instructions, must show it. The cases of the United States v. Arredondo, 6 Pet. 691 ; Perchemanv. United States, 7 Ibid. 51 ; United States v. Clarke, 8 Ibid. 436, cited and approved. The instructions of Governor O’Reilly, relative to granting lands in Louisiana, were considered by the court, in 8 Pet. 455 ; these regulations were intended for the general government of subordinate officers, and not to control and limit the power of the person from whose will they emanated ; the Baron De Carondelet must be supposed to have had all the powers which had been vested in Don O’Reilly, and a concession ordered by him is as valid as a similar concession directed by Governor O’Reilly would have been. The act of congress on which this case depends, contains no reservation of lead-mines ; it extends the jurisdiction of the court to all claims, “ by virtue of any French or Spanish grant, concession, warrant or order of survey, legally made by the proper authorities.” Appeal from the District Court of Missouri. On the 18th of May 1829, Charles Dehault Delassus, legal representative of Pedro Dehault Delassus, under the authority of the act of congress, entitled, “an act enabling the claimants to lands within the limits of the state of Missouri, and the territory of the Arkansas, to institute proceedings to try the validity of their claims,” filed in the office of the clerk of the district court of the United States for the district of Missouri, the following petition : “ To the Honorable the judge of the district court of the United States for the state of Missouri. Respectfully showeth, Charles Dehault Delassus, of the county of St. Louis, state of Missouri, that on the third day of _ March 1795, Don Pedro Dehault Delassus De Luzieres, *the father J of your petitioner, addressed his petition to Don Zenon Trudeau, lieutenant-governor of the province of Upper Louisiana, praying that a concession or grant should be made to him and his heirs, of a tract of land containing 7056 arpens, French measure, being a league square. That said lieutenant-governor, in compliance with said petition, and in obedience to an official instruction addressed to him by the governor-general of the province of Louisiana, the Baron of Carondelet, did, by decree bearing date the 1st day of April 1795 aforesaid, grant to said De Luzieres, and his heirs for ever, a tract of a square league, situated on a branch of the river St. Francis, called Gaboury, and by said decree, ordered François Valle, the captain-commandant of the port of St. Genevieve, to put the said De Luzieres forthwith into possession of said tract, and also directed that said tract should be surveyed in due form, by the surveyor then about to be appointed for the province of Upper Louisiana. , That on the 15th day of April, in the year aforesaid, the said De Luzieres was formally put into possession of said square league, by said François Vallé, in pursuance of said decree. That some time elapsed from the said delivery of possession until the appointment of a surveyor for said province of Upper Louisiana, and by which delay, and other unavoidable difficulties, the said De Luzieres was prevented from obtaining a survey of the said tract, until the 14th day of December 1799, on which day, the surveyor-general of Upper Louisiana, Don Antoine Soulard, in pursuance of an order to him specially directed by the lieutenant-governor of said province, surveyed said tract and located the same according to the terms of the above-mentioned decree of concession, and the possession delivered as aforesaid to said De Luzieres, all whic will more fully appear by said original decree of the lieutenant-governor, 78 1835] OF THE UNITED STATES. Delassus v. United States. 119 said official instruction of said governor-general, the certificate of delivery of possession by said François Vallé, the said order of survey by the lieutenant-governor ; and lastly, by the official return and certicate of survey by the surveyor-general, which certificate bears date the 5th day of March 1800, and which original documents are here brought into court, and ready to be produced and proved, and to which y our petitioner begs leave to refer. That said De Luzieres, at the date of said decree of concession, and until his decease, *was a resident of the province of Upper Louisiana. Your petitioner further showeth, that said concession and claim L thereunder having been submitted to the board of commissioners for the adjustment of Spanish and French land-claims, was rejected, on the ground, that the land intended in the said concession contained a lead-mine, and on no other. That said tract of a league square has been reserved from sale in the public land-office, until a decision shall be had thereon by the proper tribunal, and that said tract, as laid down on the general plat in the office of the register, is situated and bounded as follows, viz., beginning in the south-east quarter of section No. 25, township No. 35, north of range No. 5, east, at a post, a corner of John Capehart’s survey, and runs thence S. 8° W., with Capehart’s line, five chains, eighty-three links, to Capehart’s and D. Murphey’s corner ; sixty-four chains, sixteen links, to D. and S. Murphey’s corner ; one hundred and seven chains, ninety-one links, to S. Murphey and Coen’s corner ; one hundred and thirty-seven chains and forty-one links,to Coen and W. Murphey’s corner ; two hundred and five chains and thirty-two links, to the south-west corner of W. Murphey’s survey ; two hundred and forty-five chains, to a point in the north-west quarter of section No. 13, in township No. 35, north, of range No. 5, east ; thence N. 82° W. 245 chains to a point in the south-west quarter of section No. 9, in township No. 35, north, of range No. 5 ; N. 8° E. 245 chains, to a point in the southeast quarter of section No. 28, in township No. 36, north, of range No. 5, east ; thence S. 82° E. one hundred and sixty-three chains, ninety-eight links, to the south-west corner of Joseph Murphey’s ; seventy-two hundred and thirteen chains and fourty-five links to Joseph Murphey’s south-east corner, on the west boundary of John Capehart’s survey ; thence S. 38° W., with Capehart’s survey, one chain and thirty-two links to his south-west corner ; thence S. 82° E., with Capehart’s line, thirty-one chains and fifty links, to the place of beginning. Your petitioner further showeth, that said league square, and all claim and title thereto, since the decease of said De Luzieres, who *departed this life some years since, has been legally vested in pj2j your petitioner, and that no part of said tract is occupied or claimed *-by any person or persons adverse to the claim or title of your petitioner. Wherefore, your petitioner prays that the validity of said concession and claim to confirmation of said tract may be inquired into, and decided upon by this honorable court, and that inasmuch as said concession and survey might have been perfected into a complete title, under and in conformity to the laws, usages and customs of the government under which the same originated, had not the sovereignty of the country been changed or transferred to the United States, your petitioner prays that his title and claim be confirmed to said league square, located and bounded as aforesaid. And your petitioner prays that a citation be directed to the district-attorney of the United States, requiring him to appear and show cause, if any he 79 121 SUPREME COURT Delassus v. United States. [Jan’y can, why the confirmation prayed for by your petitioner should not be decreed to him. And your petitioner will ever pray, &c. Charles Dehault Delassus.” The answer of the attorney of the United States was filed, at the June session 1829, of the district court; denied the allegations of the petitioner, and required proof of the same. At the January session of the court, in 1830, the district judge made a decree against the claim set forth in the petition ; and this appeal was prosecuted by the petitioner. The documents annexed to the petition were the following : “ To Don Zenon Trudeau, lieutenant-governor of the western part of Illinois, &c. Pierre Charles Dehault, knight, lord of Delassus Luzieres, and knight of the great cross of the royal order of St. Michael, residing in New Bourbon, dependency of the post of St. Genevieve, has the honor to represent, that when he was at the city of New Orleans, in May 1793, he resolved to come up in the Illinois country, on the positive assurance given him by his lordship, the Baron de Carondelet, governor-general of Louisiana, that he would order and authorize you to grant him a tract of land for the exclusive exploration of lead-mines, and of a sufficient and convenient extent * _ ^or sa^ exploration, provided *it should not be formerly granted -* to another ; which warranty and assurances of the government are to be found formally expressed in a letter here subjoined, and directed to your petitioner by the said Baron, under the date of May 8th, 1793, and which you have been pleased to assure me was exactly conformable to the official letter you received on that subject from the governor-general. The long and cruel disease which your petitioner experienced, on his arrival in Illinois, in August 1793, the hostile threats of an invasion on the part of the French against the country, some short time after, the orders you gave to the inhabitants not to go to any distance from their post, and the care and trouble which, to your knowledge, I have taken in that time to countenance the wise and efficacious means you have taken so successfully in putting the posts of Illinois in a state of defence, in case of an attack, of which care, endeavor and zeal on my part, his lordship, Luis de la Casas, captain-general of Havana, being informed, I received from him a letter, bearing date May 20th, 1794, by which he gives me the most honorable evidence of bis satisfaction, as appears by copy of said letter here subjoined. That the occurrence of several circumstances hindered your petitioner to make a search of a tract of land containing lead mineral ; he now, with the assistance of his children and son-in-law, and persons acquainted with the country, visited a place situated on one of the branches of the river St. François, called Gaboury, in the district of St. Genevieve, and about twelve leagues from this post, which has not been yet granted, makes part of the king’s domain, and where it is ascertained some mineral had been anciently dug, besides the external and internal appearance, according to the mineralogical principles, indicates that the spot contains lead mineral ; therefore, your petitioner has resolved to try in that place a general exploration of lead mine : he is so much induced to prosecute such an undertaking, that he expects the arrival of his eldest son, now emigrated to Germany, who is well learned in mineralogy, having studied it particularly, and having been engaged in a similar branch in Europe with your petitioner, and will be very 80 1835] OF THE UNITED STATES. 122 Delassus v. United States. useful in exploring and conducting the one now solicited. Your petitioner fiatters himself that you will not refuse to give this concession the extent of a league square, in order to secure the necessary fuel for the melting of *the mineral, and other necessaries ; under these considerations, your petitioner humbly prays you, sir, that in conformity to the intentions of *-the government, manifested in the subjoined letters, of which you have been notified by the governor-general himself, you have been pleased to grant for himself, his heirs and assigns, in full property, the concession of a league square of land, situated on said branch of river St. François, called Gaboury, in the district of St. Genevieve, with the exclusive right to explore the lead-mines in the same, to cultivate and raise cattle on the said land, if necessary ; in so doing, your petitioner will ever pray, &c. “ New Bourbon, March 3d, ] 795. Delassus de Luziebes.” “St. Genevieve, Illinois, March 10th, 1795. “We, the commandant of said post do inform the lieutenant-governor, that the concession demanded in the within petition, is part of the king’s domain, and has not been granted to anybody, and that is extent fixed to a league square, is indispensable and necessary to secure the timber for melting of mineral and other necessary supply. François Vallé.” “To Zenon Trudeau. “ The Knight Don Pierre Dehault Delassus, has entered into contract with this intendancy, to deliver yearly, during the term of five years, thirty thousand pounds of lead in balls or bars. In order that he may comply with his contract, your worship will put him in possession of the land he may solicit, for the exploration, benefit and enjoyment of the mines ; for which purpose, he is to present a memorial, directed to me, and which your worship will transmit, that I may give him the corresponding decree of concession, being understood, in the meantime, your worship will put him in possession. God preserve your worship many years ! “New Orleans, May 7th, 1793. El Babón de Caeondelet.” “To Mr. Dehault Delassus :—I send you back the primitive titles of the concession granted *Mr. François Vallé, of St. Genevieve, who trans-ferred to Mr. Dodge, one moiety of which this last ceded to Mr. L Tardiveau, who made a gift of it to your brother, with the approbation and advice you desired. By this opportunity, I write to Mr. Zenon Trudeau, to grant you the land where you will have made a discovery of lead-mines, with adjacent lands of sufficient extent for their exploration ; provided, nevertheless, that it should not be conceded to another. Your son-in-law and your sons, shall have also, as you desire, a plantation in any place they will select in Illinois, of an extent proportionate to the establishment and improvement they propose to make. This is my answer to your letter No. 31 God have you in his holy keeping ! “New Orleans, May 8th, 1793. El Baeon de Cabondelet.” “Sir Don Peter Dehault Delassus de Luzieres :—The Baron de Caron-delet, governor-general of this province, has manifested to me, in his letter of the 27th of February last, the zeal and activity with which your lordship (although laboring under a weak state of health) has manifested in exciting 9 Pet.—6 81 124 SUPREME COURT [Jan’y Delassus v. United States. the inhabitants and Indians to join in the common defence of those settlements, and more particularly the post under your command. I do hope that your worship will continue with the same efficaciousness in similar circumstances, and give me an opportunity to reward your worship. God preserve your worship many years ! Luis de la Casas.” “Havannah, May 20th, 1794. “St. Louis, Illinois, April 1st, 1795. “Decree.—Having read the present petition, the subjoined of the Baron De Carondelet, directed to the petitioner, under the date of May 1793, also the official letter to us directed by said governor-general, authorizing and giving us order to grant the petitioner a concession in the spot selected by him, and of a sufficient extent to explore exclusively the lead mines in the same ; also the above information of the commandant of St. Genevieve, by * , which he testifies that the land petitioned for is *in the king’s domain, J and that it is indispensable that the quantity should be a league square ; we, the lieutenant-governor, in conformity with said orders and intentions of the government, have granted, and do grant unto the petitioner, and to his heirs and assigns, in fee, the concession demanded, situate on a branch of the river St. François, called the Gaboury, in the place selected by him, the extent of which shall be a league square, to the end that he may explore exclusively the lead-mines belonging to the same, and, if necessary, to cultivate and raise cattle ; hereby commanding Don François Vallé captain and commandant of St. Genevieve, in whose district the land is situated, to put the petitioner in possession thereof, the regular survey of which will be done as soon as a surveyor will be appointed and commissioned for the Upper Louisiana. Zenon Trudeau.” “St. Genevieve, Illinois, April 15th, 1795. “We, Don François Vallé, captain-commandant, civil and military, of the post of St. Genevieve, in compliance with the foregoing decree of Don Zenon Trudeau, lieutenant-governor of the western part of Illinois, bearing date the 1st instant, have this day, the 15th of the same month, put the knight Peter Delassus De Luzieres in possession of a league square of land, situated on a branch of the river St. François, called Gaboury, as granted to him by the aforesaid decree, conformably to orders, and with the approbation of his lordship, the governor-general of this province. The said concession, in future, to be regularly surveyed by the king’s surveyor, who is soon to be named and appointed for this upper colony. François Vallé.” “To Don Charles Dehault Delassus, colonel of the royal armies, and lieutenant-governor of Upper Louisiana. Humbly petition Peter Charles Dehault Delassus De Luzieres, knight, &c., residing in New Bourbon, and has the honor to represent, that in conformity to orders of the governor of this province, your predecessor, Don Zenon Trudeau, did grant to your petitioner a concession of a league square of land, situate *on a branch 126] of tjie river St. François, called Gaboury, with the exclusive right to explore the lead-mines on the same, as appears by his decree bearing date April 1st, 1795, of which concession and land your petitioner was put in possession bv Don François Vallé, captain-commandant of the post of St 82 1835 I OF THE UNITED STATES. 126 Delassus v. United States. Genevieve, in whose district the land is situated, as appears by his act, bearing date the 15th day of April of said year ; and whereas, it is mentioned in said decree of Don Zenon Trudeau, that said concession will be regularly surveyed by the surveyor who has to be appointed by the government for Upper Louisiana ; and whereas, Don Antoine Soulard has been commissioned and appointed as such surveyor : therefore, under these considerations, your petitioner requests you, sir, that after mature consideration of the instruments here submitted, relating to said concession, you be pleased to give the necessary orders to Don Antoine Soulard, surveyor of Upper Louisiana, to proceed without delay to the regular survey of said concession of a league square, on the said branch of the river St. François, called Gaboury, to explore, exclusively to any other, the land, &c., and of which land he has been already put in possession by the commandant of St. Genevieve, and has already begun the exploration ; he hopes to obtain his demand, inasmuch as he djd not hurry the surveyor, in order to give him the necessary time to attend to the surveying of concessions belonging to other inhabitants, who wished to have their surveys quickly executed. In so doing, you will do justice. Pierre Delassus de Luzieres.” “New Bourbon, November 25th, 1799. “ By virtue of the contents of the above memorial and the accompanying documents, and also from what it appears by the official letter of the Baron Be Carondelet, late governor of these provinces, bearing date the 7th and 8th of May, 1793, on file in these archives, the surveyor, Don Antoine Soulard, will survey the league square of land which was granted to the party interested, by the decree of my predecessor, the lieutenant-governor, Bon Zenon Trudeau, dated 1st April 1794, conformably to orders of his lordship, the governor ; and of which land he has been put in possession, as appears by decree of François Vallé, commandant *of St. Genevieve, r*127 bearing date April 15th, of the year last mentioned, to be hereafter L surveyed by the surveyoi* of this upper Louisiana, when appointed and commissioned. Charles Dehault Delassus.” “St. Louis, November 29th, 1799. On the 6th of March 1800, Anthony Soulard, principal deputy-surveyor of Upper Louisiana, certified, that on the 14th of December 1799, he made a survey and return of the land claimed by the petitioner, in virtue of the . decree of the 29th of November 1799. The case was argued by White, for the appellant ; and by the Attorney-General, for the United States. White, for the appellant, submitted the following points.—1. That this is a valid Spanish concession, made in obedience to the orders of the superior officers of the crown of Spain ; and in conformity with the laws of Spain. 2. That it is a claim protected by the treaty, and entitled to confirmation under the treaty and laws of the United States. This was a petition in equity, presented under the act of 1824, authoriz-claimants to lands under French and Spanish titles in Missouri, to insti-tute proceedings to try the validity of their titles. The decision of the court below was against the title of the appellant here, who was the peti-^er in that court. The grounds upon which the title was rejected neec 93 127 SUPREME COURT Delassus v. United States. [Jan’y not be stated, further than the recital in the judge’s opinion and decree, which appears to be a formula, reduced to words applicable to, and employed in, every case presented to him. The claim of the appellants, like all the rest, is rejected, because it is not made in conformity to the ordinance transferring the jurisdiction and power of conceding and distributing lands, and the regulations made under it, in 1798 and 1799, to the intendencia of the province of Louisiana. The title of the petitioner originated in the year 1795 ; and it is not, assuredly, a valid objection to it, that it was not made by an authority created in 1798, and according to forms prescribed for the grant and concession of lands in 1799. The royal order of 1798, and the regulations of the intendant Morales, published on the 17th of July 1799, have no application whatever to this case, and need not be further considered in the argument or decision of it. The rules and principles by which all the cases depending in this court, from Missouri, under the act of 1824, are to be decided, will be found in the first and second sections of that act. Clarke’s Land Laws 871. 1. The laws of nations: 2. The stipulations of a treaty: 3. The proceedings under the treaty : 4. The laws and ordinances of France or Spain. In regard to the first, the law of nations, it has been considered in the cases of Arredondo, Percheman and Clarke, under a similar law, and the principle has been established ; that it is a universal principle recognised and acknowledged by all civilized states, that the property of the inhabitants of a conquered or ceded province is not affected by the change of sovereignty or dominion ; and that the law of nations, as applied to the interpretation of treaties, in favor of individuals, is to be classed among things favorable, and therefore, liberally expounded. The stipulations of the treaty refer only to the second article of the cession of Louisiana ; in which pro formá, private property is reserved in the general transfer of the sovereignty, dominion and public domain of the government making the cession. Property has been defined by this court to be every species of title, legal and equitable, perfect and inchoate, existing at the time of the treaty. It will not be contended, that the title, under which the petitioner claims in this case, is a full and complete grant; but it will be contended, that it was held, at the time of the transfer to the United States, by an equitable title, which constituted in the petitioner a right of property, protected by the laws of nations and the treaty, which might have been consummated by complete grant; and ought to be confirmed. The proceedings under the treaty, and the several acts of congress in relation to the same, mean nothing more than the legislative construction of congress upon that instrument; and the principles settled in the establishment of other claims of a similar character. The laws and ordinances of Spain are perhaps the most difficult to be ascertainéd of the several rules by which this court is to be guided, in its decision of these questions. The laws of all foreign countries are in a great measure inaccessible to, and difficult to be comprehended by, the courts of any other country. They consist of positive enactments, proclamations, letters of instruction, customs and usages, which often differ in the different provinces of the same country. In absolute governments, where the will of the prince is the law, it is still more difficult; and though power always loves to consider itself infallible, 84 1836] ÓF THE UNITED STATES. 127 Delassus v. United States. it is too often exhibited in the inconsistences of caprice, and the wantonness of arbitrary authority. In this particular case, however, passing over the presumption arising from the act of a foreign officer, that it is to be considered legitimate, and not a usurpation, which imposes on the appellee the obligation of showing the want of authority in the granting officer ; it is easy to show, in this particular case, that he was vested with competent power to make the cession in question. To explain the condition of that district of country, known formerly as Louisiana, and now embracing two states and one territory, will require a brief historical view of them, prior to 1803. By the secret treaty of 1762, between France and Spain, all the territory west of'the Mississippi river, including the island of New Orleans, was ceded to Spain, and designated as the colony of Louisiana, which cession was confirmed in the definitive treaty of 1763. Spain did not signify her acceptance of this province, until 1764. In the year following (1765), Don Antonio de Ulloa was appointed governor-general, and his instructions from the council of the Indies, were, to continue the laws in force in the province, which were then the laws of France. The colonists resisted the establishment of the Spanish authority ; and on the 29th of October 1768, Lieutenant-General O’Reilly was commissioned by the king to proceed to the province, to suppress the insurrection, punish the rebels, and to organize the government. This lieutenant-general took possession of the province, visited various posts and commandancies, established Don Louis de Upzaga in the government, and returned to Spain. Lieutenant-General O’Reilly, upon his return to San Ildefonso, was directed to submit to the council of the Indies his plans of government for the province ; and on the 18th of February 1770, he drew up some regulations for the concession of lands, which were approved by the king, on the 24th of March 1770. The first six articles of these instructions are confined to Lower Louisiana ; the eighth and ninth, to Opelousas and Attacapas. The ninth contemplates a larger grant than of a league square ; as to the quantity under that, there can be no question,. It is doubtful, whether these instructions extended to St. Louis of Illinois, now Missouri ; to the decision of this case, they are immaterial. The first six articles being confined to the Mississippi, it follows, that the power to grant to the same extent in Illinois existed, as that in Opelousas ; and this claim being within the limit, is a valid order of survey or concession. The royal order of the 28th of January 1771, incorporates Louisiana into the king’s dominions on a footing with his other transatlantic possessions, and adopts the laws of the Indies. These laws, upon the principle that leges posteriores priores abrogant, control so much of O’Reilly’s regulations as are inconsistent with them, being subsequent in date to the royal cedula which gave these regulations the force of law. Lieutenant-General O’Reilly drew up five sets of instructions for the government of Louisiana, as appears from a report of the council of the Indies, dated 27th February 1772 ; in which report they were recommended for the royal approbation, and were approved by a cedula of the king, on the 23d of March 1772. The commission of the governor and captain-general Galvez in 1779, refers to a cedula approving of one of O’Reilly’s regulations, on the 21st of July 1776 ; from which it would appear, that all of the plans projected by Lieutenant- 86 127 SUPREME COURT [Jan’y Delassus v. United States General O’Reilly, were not approved until 1776. There is a slight error in the translation of a royal order, in White’s Compilation 152, referring to three, sets of instructions for the government of St. Louis de Illinois. The word las has been mistaken for tres, and it should be read the instructions instead of three instructions. This is shown by a correct copy recently obtained from Spain. It may be important, in other cases, to inquire, whether these instructions for Illinois are the same as those of 1770 in other cases ; and, whether those for Upper Louisiana were not more liberal; but in this case, it is unnecessary. The effect too of the introduction of the laws of the Indies in 1772, and the ordinance of 1786 upon grants as gratuities, and for services, will be more properly considered when such cases are on trial. The commissions of Galvez and Miro show that the offices of governor and intendant were united in the same officer. They were divided at the instance of the Baron De Caron-delet. The power of conceding lands was vested in the civil and military governors, until 1798, when it was transferred to the intendant. The lieutenant-governor of St. Louis de Illinois, after 1798, stood in the same relation to the intendant, as sub-delegate, as he had previously done to the governorgeneral, as deputy. Whether this title is to be considered under the general laws of Spain, with the presumption arising from the concession or not, or whether it be considered under O’Reilly’s instructions ; being proved to be genuine, it must be confirmed. Cited in argument, Ordinance of 1754 ; Ordinance of 1786 ; Leyes de Espana, tit. Residencia; Ordinance directing Report of deputygovernors ; Laws Indies ; White’s Com. 57, 58, 35 ; Royal order for delivery of Louisiana, White’s Com. 162 : Treaty for cession of Louisiana, White’s Com. 168. Butler, Attorney-General.—The object of the argument on the part of the United States in this case, will be rather to lay before the court such views of the nature and extent of the titles set up in the cases which are before the court, by appeal from the district of Missouri, as are applicable to all these cases, than to resist the present case, which appears to be founded on equity, and in which, unless the documents are not genuine, or the court shall be compelled by some strict rule of law, the court will reverse the decree of the district court. The documents in the case show great merit in the claimant; who, in consideration of this merit, and of a contract to *1281 *^urn^s^ a cei‘tain quantity of lead to the governor of Louisiana, was -* recommended to the special favor of the lieutenant-governor. This is shown by the letter of the Baron De Carondelet. The court will observe, that as to all action in the case by the governorgeneral, the title of the claimants stops at these letters. There is not shown any application to the governor-general for a complete grant. The decision of the district judge was, that no complete grant was exhibited, and that the claim rested on an inchoate and imperfect title. As to the first point presented by the counsel for the appellant, it is necessary to explain, what is intended by the United States, when it is said, tlni is not a valid concession. It is denied, that the lieutenant-governors of Upper Louisiana had a right to grant land in Upper Louisiana. Although the commandant of St. Louis and St. Genevieve might not have been sub- 8* 1S35J OF THE UNITED STATES. Delassus v. United States. 128 ordinate in other matters, yet he was, in reference to the grant of lands, subordinate to the governor-general of Louisiana, and in some respects subordinate to the governor-general of Havana. The supreme authority of the governor-general is fully established by the documents in this and the other cases before this court, on appeal from the district court of Missouri. The lieutenant-governors could not grant lands, without special authority from the governor-general. An express reference is made in the grant of Don Zenon Trudeau, to the authority given to him by the letter of the Baron De Carondelet. That letter states, that a memorial is to be presented by Mr. Delassus to the Baron De Carondelet, that a corresponding concession may be given to him. This clearly asserts the power to be in the governorgeneral ; although it allows possession to be given of the lands for a concession, and negatives the authority of the lieutenant-governor to make a full grant. The records in other cases, the examination of which will follow this now under consideration, will show the general understanding and practice of the officers of Spain in granting lands, and fully sustain the positions now assumed. In 1798, the power to grant lands was transferred from the governorgeneral of Louisiana to the intendant. After the *transfer, the lieutenant-governor of Upper Louisiana acknowledged this transfer, L and the obligation to apply to the intendant for the completion of grants ; in the same manner as was before required to apply to the governor-general. This is fully established by the records in other cases before the court, and by repeated recognitions shown in state papers. As to the second point presented by the counsel for the appellant, that there was a complete grant made to the appellant, it is not intended to deny, that if such a grant had been made, it was the duty of the court below and of this court to confirm the title. All the principles which have been decided in the cases of Spanish grants, which have been before this court, are not to be questioned. These decisions are sustained as well by the principles of international law, as by the treaty. It has been finally settled, that a claim for lands, founded on and conformable to the laws of Spain, if of such a character as that, by the laws of Spain, it would have ripened into a perfect title, will be confirmed by this court. What is the real question in the case now under the consideration of the court? Certain regulations were made in 1770, by Don O’Reilly, which were intended to govern the granting of lands in all Louisiana ; and these regulations were confirmed by a royal order of the King of Spain. White’s Land Laws 204; Clarke’s Land Laws 978. This confirmation was given on the 28th of January 1771. Documents relative to Louisiana and Florida 3. It will, therefore, be no longer disputed, that in the whole of Louisiana, these regulations were in full force, and applicable to the granting of lands, until they were altered. The difficulty in this case grows out of the discrepancy of the grant, and the regulations of O’Reilly. The point intended now to be submitted, is, whether the lieutenant-governor of Illinois could make a larger grant than a league square. The grant does not conform to these regulations, and as they were in force, the grant would not have been confirmed under the laws of the Indies; and was, therefore, void, as against the United States. 87 129 SUPREME COURT Delassus v. United States. [Jan’y It is said, that the governor-general of Louisiana had been in the habit * confirming grants which were not in conformity *with these regu- J lations. This is admitted. When this case was decided by the district judge of Missouri, the cases of Arredondo and of Percheman had not been decided ; and it was not, until the decisions in these cases, considered, that an equitable title was sufficient to entitle a claimant to a confirmation of his grant. The proceedings below were founded on the law of congress of 1824. (4 U. S. Stat. 52.) The district judge decided in the language of the law; and it is contended, that although an inchoate grant is shown in this case, yet, as it was in opposition to the regulations of O’Reilly, he could not do otherwise. It is admitted, that although this grant does not conform to these regulations, yet grants of this kind have been confirmed by the Spanish authorities ; and if this is a case within the same principles, this grant must be confirmed. But if the court hold the regulations of O’Reilly were the only authority to make such a grant, it will affirm the decree of the district judge. The act of congress gave powers to the commissioners to confirm grants, except those having lead-mines upon them. But the claim now before the court, is under the treaty with France, making a cession of Louisiana ; and the court will decide whether the exception in the law can prevail against the treaty. The principal reliance of the United States to sustain the decree of the court below, is upon the non-conformity of the grant with the regulations of Don O’Reilly. White, in reply.—The attorney-general admits that this is a genuine order or survey, dated in 1795, and that there is no evidence to impeach its date, or that the act, such as it purports to be, was duly executed at the date specified. He insists, that the lieutenant-governor of Upper Louisiana, or St. Louis of Illinois, was subordinate to the governor-general of Louisiana. It is admitted, on the part of the appellant, that he was subordinate to the governor-general; but non constat, that he had not authority to make the order of survey and concession. The governor-general himself (as all the transatlantic authorities were) was subordinate to the king ; and it might with equal propriety be contended, that no grant was good, unless it emanated from the crown. Such a position, if maintained, would vitiate every title in upper or lower Louisiana. He admits, that an order of survey and possession under it constitutes property ; and as property is protected by the treaty, it must be conceded, that the claim of the appellant is embraced by the treaty, and 'entitled to confirmation. The distinction attempted to be drawn between incomplete titles and imperfect ones, or between full grants and inchoate titles, has been considered and rejected by this court. The correct principle of decision by the American government of Spanish titles, must be a recognition of perfect, and a completion of imperfect titles ; as they would have been consummated by the former government, if the sovereignty had not been transferred to the United States. It cannot be denied, that the governorgeneral would have approved and confirmed this concession. The United States, taking the place of Spain, are bound, in the same manner, to ratify and confirm it, and that duty has been assigned by congress to this court. It has been shown, that in ail similar cases where applications were made 88 1835] Of THE UNITED STATES. lâô Delassus v. United States. to the governor-general, he invariably gave a title in form, or confirmatory grant. He could not refuse, because, by the ordinance of 1786, the deputygovernors were subjected to the residencia ; which was the account given to the council of the Indies of the administration of their governments. They were required, equally with the governors, to make a regular report of their proceedings ; and if the governor-general refused his approval, the party was entitled to his appeal. There is no instance in which such a confirmation was ever refused. There was no law of Spain which forbade the concession of a lead-mine ; and the act of congress which interdicted the confirmation of such a title, was in violation of the treaty and of the constitution. Cited, various documents, commissions and cédulas recently received from Seville, in Spain, certified by the American minister. Marshall, Ch. J., delivered the opinion of the court.—This is an appeal from a decree pronounced by the court of the United States for the district of Missouri, by which the claim and title of the petitioner, Charles Dehault Delassus, to a tract of land in his petition mentioned, under a concession alleged to be authorized by the laws of Spain, and protected by the treaties ceding Louisiana to the United States, was declared to be invalid. The suit was instituted under the act of the 25th of May 1824, “enabling the claimants to lands within the limits of the state of Missouri, and territory of Arkansas, to institute proceedings to try the validity of their claims.” *The petition, which is the institution of the suit, states, that on the 3d of March 1795, Don Pedro Dehault Delassus De Luzieres, L father of the petitioner, addressed his petition to Don Zenon Trudeau, lieutenant-governor of the province of Upper Louisiana, praying that a concession or grant should be made to him and his heirs, of a tract of land containing 7066 arpents, French measure, being a league square. That said lieutenant-governor, in compliance with said petition, and in obedience to an official instruction addressed to him by the governor-general of the province of Louisiana, the Baron Carondelet, did, by decree bearing date the 1st of April, in the year 1795, grant to the said De Luzieres and his heirs for ever, a tract of a square league, situated on a branch of the river St. François called Gaboury, and by said decree, ordered François Vallé, the captaincommandant of the post of St. Genevieve, to put De Luzieres forthwith in possession of said tract of land, which was done on the 15th of the same month. A delay in the appointment of a surveyor for the province, prevented the survey from being immediately made ; it was made on the 14th of December 1799. The petitioner proceeds to state, that the requisites of the laws for the preservation of his right had been observed, that his father is dead, and the title is vested in the petitioner. He prays that his title and claim be confirmed. The answer of the district-attorney professes ignorance of the facts ; and insists that the petitioner be required to prove the validity of his claim. The petition of Pierre Charles Dehault Delassus De Luzieres, presented to Don Zenon Trudeau, lieutenant-governor of the western part of Illinois, wc., states, that in May 1793, he resolved to come to Illinois, on the assurance of his lordship, the Baron De Carondelet, governor-general of Louisiana, that he would order and authorize him, the said Don Zenon Trudeau, 89 131 SUPREME COURT [Jan’y Delassus v. United States. the lieutenant-governor, &c., to grant him, the petitioner, a tract of land for the exclusive exploration of lead-mines, &c., which assurance is fully expressed in a letter annexed to the petition, which, he adds, conforms to a letter addressed to the lieutenant-governor on the same subject. The petition then ascribes the delay in its presentation to long and severe illness, and *1321 difficulty of finding a tract of land adapted to the *object. This J being at length accomplished, and having found a spot indicating that it contains lead mineral, on one of the branches of the river St. François called Gaboury ; the petitioner prays a concession thereof to the extent of a league square. The letter of the Baron De Carondelet is in these w’ords : “ The Knight Don Pierre Dehault Delassus has entered into contract with this intendancy to deliver yearly, during the term of five years, thirty thousand pounds of lead, in balls or bars. In order that he may comply with his contract, your worship will put him in possession of the land he may solicit, for the exploration, benefit- and enjoyment of the mines ; for which purpose, he is to present a memorial directed to me, and which your worship will transmit, that I may give him the corresponding decree of concession ; being understood in the meantime your worship will put him in possession. God preserve your worship many years ! “To Zenon Trudeau. El Baron de Carondelet.” “New Orleans, May 7th, 1793.” Other letters from the Baron De Carondelet, sustaining that above recited, were annexed to this petition ; and on the 1st of April 1795, Zenon Trudeau, the lieutenant-governor of the province, granted the required concession. The regular documents to prove the survey, and the possession of the premises by Delassus, were also laid before the district court. The act of the 26th of May 1824, gives the district court authority to hear and determine all questions arising in any cause brought before it by the petition of any person claiming lands within the state of Missouri, “ by virtue of any French or Spanish grant, concession, warrant or order of survey, legally made, granted or issued, before the 10th day of March 1804, by the proper authorities, to any person or persons resident in the province of Louisiana at the date thereof, or on or before the 10th day of March 1804, and which was protected or secured by the treaty between the United States of America and the French Republic, of the 30th day of April 1803, and which might have been perfected into a complete title, under and m *1 qql Conformity to the laws, usages and customs of the government under J which the same originated, had not the sovereignty of the country been transferred to the United States.” In the first article of the treaty referred to, the Consul of the French Republic ceded to the United States, in full sovereignty, the province of Louisiana, with all its rights and appurtenances. The second article declares, that in this cession “are included the adjacent islands belonging to Louisiana, all public lots and squares, vacant lands, and all public buildings» fortifications, barracks and other edifices, which are not private property. The third article stipulates, “that the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted, as soon as possible, according to the principle of the federal constitution, to 90 1835] OF THE UNITED STATES. Delassus v. United States. *133 the enjoyment of all the rights, advantages and immunities of citizens of the United States; and in the meantime, they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess.” These are the stipulations which afford that protection or security to claims to land under the French or Spanish government, to which the act of congress refers. They extend to all property, until Louisiana shall become a member of the Union ; into which the inhabitants are to be incorporated as soon as possible, “ and admitted to all the rights, advantages and immunities of citizens of the United States.” That the perfect inviolability and security of property is among these rights, all will assert and maintain. The right of property, then, is protected and secured by the treaty ; and no principle is better settled in this country, than that an inchoate title to lands is property. Independent of treaty stipulation, this right would be held sacred. The sovereign who acquires an inhabited territory, acquires full dominion over it; but this dominion is never supposed to divest the vested rights of individuals to property. The language of the treaty ceding Louisiana excludes every idea of interfering with private property ; of transferring lands which had been severed from the royal domain. The people change their sovereign ; their right to property remains unaffected by this change. The inquiry then is, whether this concession “ was legally *made by the proper authorities “ and might have been perfected into a L complete title, under and in conformity to the laws, usages and customs of the government under which the same originated, had not the sovereignty of the country been transferred to the United States ?” The concession was made in regular form, on the 1st of April 1795, by Zenon Trudeau, lieutenant-governor of the western part of Illinois, in which the land lay, by special order of the Baron De Carondelet, governor-general of the province ; given in consequence of a contract entered into by De Luzieres with the government for the supply of lead. By the royal order of 1774, the power of granting lands, which had been vested in the intendants, by an order of 1768, was revested in the civil and military governors of provinces, who retained it till 1798. White’s Compilation 218. In the execution of this power, the lieutenant-governors or commandants of posts, as is fully shown by the proceedings before the various tribunals appointed under the author-ny of the United States, were employed to make the original concession and order of survey, and to put the grantee into possession. In 1795, then, when these acts were performed by the lieutenant-governor, under the authority and by the special order of the governor-general, those officers were “the proper authorities ;” and had full power to make the concession, and to perfect it by a complete title. Who can doubt, that it would have een so perfected, “in conformity to the laws, usages and customs of the panish government, had not the sovereignty of the country been transferred to the United States ?” to A grant or a concession made by that officer, who is by law authorized ° make it, carries with it primd facie evidence that it is within his power ; his th6131» or departure from them, is to be presumed ; he violates offi 8UC^ excess, and is responsible for it. He who alleges that an intrusted with an important dnty has violated his instructions, must 91 1$4 SUPREME COUKT [jan’y Delassus v. United States. show it. This subject was fully discussed’ in United States v. Arredondo, 6 Pet. 691 ; Percheman v. United States, 1 Ibid. 51; and United States v. Clarke, 8 Ibid. 436. It is unnecessary to repeat the arguments contained in the opinions given by the court in those cases. *1351 *The< concession is unconditional; the land was regularly sur-veyed, and the party put into possession. The objection made to this plain title is, that the concession is not made in pursuance of the regulations of O’Reilly. This objection was considered in the cases heretofore decided by this court, and especially in 8 Pet. 455. It is apparent, that those regulations were intended for the general government of subordinate officers ; not to control and limit the power of the person from whose will they emanated. The Baron De Carondelet, we must suppose, possessed all the powers which had been vested in Don O’Reilly; and a concession ordered by him is as valid as a similar concession directed by Governor O’Reilly would have been. Had Governor O’Reilly made such a grant, could it have been alleged, that he had disabled himself by his instructions for the regulation of the conduct of his subordinate officers—instructions which the power that created must have been capable of varying or annulling—from exercising the power vested in him by the crown ? The lead-mine has been mentioned. But the act of congress, on which this case depends, contains no reservation of the lead-mines. It extends the jurisdiction of the court to all claims, “ by virtue of any French or Spanish grant, concession, warrant or order of survey,” legally made by the proper authorities, &c. This is such a concession. The court is of opinion, that the claim of the appellant is valid, and ought to be confirmed. The decree of the district court is reversed and annulled ; and this court, proceeding to pronounce such decree as the district court ought to have given, doth declare the claim of the petitioners to be valid; and doth confirm their title to the tract of land in their petition mentioned, according to the boundaries thereof, as described in the survey made by Antonio Soulard, principal deputy-surveyor of Upper Louisiana, on the 14th day of December 1799, and his certificate of the said survey, dated the 5th of March 1800, and appearing in the record of the proceedings of this cause. This cause came on to be heard, on the transcript of the record from the * -. district court of the United States for the district *of Missouri, and J was argued by counsel: On consideration whereof, this court is o. opinion, that the claim of the appellant is valid, and ought to be confirmed. Whereupon, it is ordered, adjudged and decreed by this court, that the decree of the said district court in this cause be and the same is hereby reversed and annulled ; and this court, proceeding to pronounce such decree as the said district court ought to have given, doth declare the claim of the petitioner to be valid ; and doth confirm his title to the tract of land in his petition mentioned, according to the boundaries thereof, as described in the survey made by Antonio Soulard, principal deputy-surveyor of Upper Louisiana, on the 14th day of December 1799, and his certificate of the sai survey, dated the 5th of March 1800, and appearing in the record of t e proceedings of the cause. 92 Ì835] OF THE UNITED STATES. *137 * Auguste Chouteau’s Heirs v. United States. Missouri land-claims. A concession of land was made by the lieutenant-governor of Upper Louisiana, at the time when the power of granting lands was vested in the governors of provinces ; this power was, in 1799, after the concession, transferred to the intendant-general ; and after this transfer, in January 1800, the order of survey of the land was made by the lieutenant-governor. The validity of the order of survey depends on the authority of the lieutenant-governor to make it ; the lieutenant-governor was also a sub-delegate, and as such was empowered to make inchoate grants. The grant was confirmed. The transfer of the power to make concessions of lands belonging to the royal domain of Spain, from the governor-general to the intendant-general, did not affect the power of the sub-delegate, who made this concession. The order in this case is the foundation of title, and is, according to the act of congress on the subject of confirming titles to lands in Missouri, &c., and the general understanding and usages of Louisiana and Missouri, capable of being perfected into a complete title ; it is property, capable of being aliened, of being subjected to debts ; and is, as such, to be held as sacred and inviolate as other property. Appeal from the District Court for the district of Missouri. On the 18th of May 1829, the following petition, with the documents therein referred to, was presented by the appellants to the district court of the United States for the district of Missouri. “To the Honorable the District Court of the United States for the district of Missouri. The petition of Auguste A. Chouteau, Gabriel Ceré Chouteau, Henry Chouteau, Edward Chouteau, Eulalie Paul and René Paul, husband of said Eulalie, Louise Paul and Gabriel Paul, husband of said Louise, Emilie Smith and Thomas F. Smith, husband of said Emilie, respectfully showeth, that in the year 1799, Auguste A. Chouteau, deceased, late of St. Louis, the father of your petitioners, applied to and obtained permission from the government then existing in Upper Louisiana, to establish a distillery, in or near the town of St. Louis, as will more fully appear by the petition and order thereon, dated the 5th of November 1799, and 3d of January 1.800, which are herewith shown to the court and prayed to be taken as pjog part of this petition, marked No. 1 ; that on the 5th day of January 1800, said Auguste Chouteau presented his petition of that date to the lieutenant-governor of the province of Upper Louisiana, praying that a tract of land, containing 1281 arpents, superficial measure of Paris, situated near the town of St. Louis, bounded on the north by a tract granted to Doctor John Watkins, on the south and on the west, by the lands of the third line of . concessions, should be granted to the said Auguste Chouteau and his heirs, or the purpose of enabling said Auguste Chouteau to obtain a sufficient supply of fire-wood for the distillery aforesaid; that on the same day, to wit, e 5th of January 1800, the said lieutenant-governor made his decree con-ormably to the prayer of said petition, whereby said lieutenant-governor greeted and ordered that the surveyor of the said province, Don Antonio oulard, should put the said Auguste Chouteau in possession of the said ract of 1281 arpents, in the place indicated and demanded, to the end that sai Auguste Chouteau might afterwards obtain the complete title thereto rom the governor-general, all which will appear by said petition and decree, how here produced, marked No. 2, and which petition and decree is prayed ° e taken as part of this petition ; that afterwards, in obedience to said ecree, to wit, on the 5th day of March 1801, the said surveyor, Don 93 138 SUPREME COURT [Jan’y Chouteau v. United States. Antonio Soulard, delivered the possession of said tract to said Auguste, and executed a survey and plat of survey thereof, as will more fully appear by the said plat and certificate of survey, bearing date the 10th of April 1801, now here produced, marked No. 3, and which said plat and certificate were recorded in book A, p. 43, No. 82, in the office of said surveyor, as by reference to the said certificate, and to said record in the office of the surveyor of this district, will appear; that said decrees, so made by said lieutenant-governor, were made in pursuance of the special instruction given by the governor-general of Louisiana, Don Manuel Gayoso De Lemos, to said lieutenant-governor, to favor and forward the aforesaid undertakings of said Auguste Chouteau, as will appear by the letter of said governor-general, addressed to said Auguste Chouteau, under date the 20th of May 1799, in answer to an application made by said Auguste *Chouteau to said J governor-general, as will appear by reference to said original letter, herewith exhibited, marked No. 4, and prayed to be taken as part of this petition ; that by virtue of said decrees, survey and delivery of possession, said Auguste occupied and enjoyed said tract, so granted, as the lawful proprietor thereof, from the date of said delivery of possession, until the decease of said Auguste Chouteau ; that said Auguste, during his life, did, in conformity to the acts of congress in that case made and provided, submit his claim to said tract, derived as aforesaid, to the board of commissioners heretofore created for the settlement and adjudication of French and Spanish land-claims in Upper Louisiana; that said board rejected said claim, on the sole ground, that a tract of a league square having been already confirmed to said Auguste Chouteau, the board had not power, under the law, as it then stood, to confirm to said Chouteau any greater quantity ; and your petitioners show that said board, for the purpose, as it is supposed, of testifying their sense of the merits of said claim, did cause to be indorsed on the back of a document therein exhibited to them, the words ‘ bond fide? as will appear, reference being had to said document No. 2, hereinbefore mentioned ; your petitioners further show, that said Auguste Chouteau has departed this life, and that previous to his death, he made his last will and testament, in due form of law, whereby he devised to your petitioners the said tract of 1281 arpents, besides other property, to your petitioners and their heirs, as tenants in common. Wherefore, your petitioners pray that said title may be inquired into, and that the same be confirmed, as the same would have been confirmed, had not the sovereignty of said province been transferred to the United States. (Translation.) No. 1. “To Mr. Charles Dehault Delassus, lieutenantcolonel, attached to the regiment of Louisiana, and lieutenant-governor of the upper part of the same province, &c. Auguste Chouteau has the honor to expose, that he wishes to establish, in this town, a manufactuie proper to distil the several kinds of grains raised in this dependency, (to) supply the wants of the consumption of the place, of which remote distance to the chief city renders the importation too *expensive to 140] draw from it annually what is necessary for its use. Wherefore, sir, the supplicant, previous to subjecting himself to considerable expenses o form such an establishment, wishes to obtain the honor of your consen , w order that hereafter he may not be subject to any alteration hurt u o 1 94 18351 OF THE UNITED STATES. Chouteau v. United States. 140 interests ; wherefore, the supplicant will acknowledge your goodness, if you grant his request. . Auguste Chouteau.” “St. Louis of Illinois, November 5th, 1799. “St. Louis of Illinois, January 3d, 1800. “ Considering that the establishment which the supplicant proposes to form will be useful to the public and to commerce, because there does not exist any of this nature, and that he will procure liquors in a greater abundance, and at a less price than those which are imported, and in very little quantity, from New Orleans, we grant the request. * Charles Dehault Delassus. [l. s.]” (Translation.) No. 2. “ To Mr. Charles Dehault Delassus, lieutenantcolonel, attached to the fixed regiment of Louisiana, and lieutenant-governor of the upper part of said province. Auguste Chouteau, merchant, of this town, has the honor to represent, that the lands adjacent to this town being mostly conceded, and timber becoming daily very scarce, he is very much embarrassed in the carrying on of the considerable distillery which you have permitted him to establish, by your decree, dated 5th of November of last year ; consequently, he hopes you will be pleased to assist him in his views, and have the goodness to grant him the concession of one thousand two hundred and eighty-one superficial arpents of this land, situated on the fourth concession in depth of the land adjoining this town ; bounded north by the land of Dr. John Watkins ; south and west, by the lands of the third concession. The supplicant, besides having the intention to establish the said lands, hopes to obtain of your justice the favor which he solicits. “St. Louis, January 5th, 1800. Auguste Chouteau.” * “St. Louis of Illinois, January 5th, 1800. “ Being satisfied that the supplicant has sufficient means to make L available, in the terms, of the regulation of the governor-general of this province, the lands which he demands, the surveyor of this Upper Louisiana, Mr. Anthony Soulard, will put him in possession of the one thousand two hundred and eighty-one arpents of land, in the place where he asks it ; and afterwards, the applicant will have to solicit the formal title of concessions of the intendant-general of these provinces, to whom belongs, by order of his M—, the disposing and conceding every kind of vacant lands of the royal domains. Charles Dehault Delassus.” No. 3. The survey of the land was made by Antonio Soulard, principal deputy-surveyor of Upper Louisiana, on the 5th day of March, and certified on the 10th of April 1801. (Translation.) No. 4. “New Orleans, May 20th, 1799. ‘ My dear friend :—Wishing to testify to you my esteem, by every opportunity, I merely assure you of my esteem, promising you to answer your letter by the boat that just arrived, and which will leave here next ^eek. In my instructions to Mr. Delassus, I recommend him particularly o avor all your undertakings, &c. Adieu : I am in such a hurry that ave but the time to tell you that I am your sincere friend and most umble servant, Manuel Gayoso de Lemos.” 95 141 SUPREME COURT [Jan’y Chouteau v. United States. The district attorney of the United States filed an answer to the petition, denying the claim of the petitioners, and requiring proof of the same. At the January session of the district court, in the year 1830, a decree was entered against the validity of the title and claim of the petitioners. From this decree, the petitioners prosecuted this appeal. The case was argued by White, for the appellants ; and by the Attorney-General, for the United States. * .*For the appellants, it was contended : 1. That the title pre- J sented is a valid Spanish grant, made in conformity to the laws, customs and usages of the Spanish government. 2. That tMb said title was confirmed by the treaty of cession of Louisiana. 3. That the petitioners are entitled to a decree of confirmation by said treaty, and the pro ceedings under the same. White, for the appellants (in this and the following case) :—These two cases will be considered together. The one is a grant for a league square, in 1798, before the transfer of the jurisdiction of petitions and claims to land from the military and civil government to the intendencia ; and the other, subsequent thereto, to the ancestor or the petitioners. They were rejected on the grounds stated in the case of Delassus. There is one additional objection to these claims. It is, that Auguste Chouteau had obtained another concession, which was sold to Daniel Clarke, and confirmed to him. There is nothing in the laws of the Indies, nor in the regulations of O’Reilly, nor the ordinance of 1754 and 1786, which forbids more than one concession to an individual. He was entitled to an concession for a cow-pen, to one for agriculture, and one for any useful invention, as was shown in Clarke’s case. Whether Auguste Chouteau was entitled to another concession, however, before or after his sale to Daniel Clarke, was a question exclusively for the Spanish authority. It is proved, that the second concession was made. The fact of its having been made by an agent of the crown, whose duty it was to receive such applications, and to adjudicate such questions without appeal or reversal, whilst the province remained under the dominion of Spain; constituted what we call a res adjudicata, so far as the American government is concerned. The other claim granted to furnish wood for a distillery, was made by the lieutenant-governor, as sub-delegate of the intendant. It is not forbidden by the general laws of Spain, nor by the regulations of Morales. These latter regulations, it has been shown by documents recently received from Spain, were not approved by the crown. They never had the force of law, and were mere regulations of police, promulgated for a guide to commandants of posts; but'changed whenever circumstances required. One of these grants is for agriculture, and another for a manufacturing establishment o an article much in demand in the western country. The governor-genera , in a letter to be found in the record, testified his great regard for the peti tioner, and his desire to serve him, and to promote his objects. The grants and concessions for services and gratuities, stand upon a different principle ; which, although founded upon an authority as certain and unequivocal as these, will not be discussed here, as neither of t ese are liable to the objections taken to others rejected by the district cour Missouri. 96 1835] OF THE UNITED STATES. Choute’au v. United States. 142 Referred to, Ordinance of 1798, Laws of Indies; NovissimaRecopolacion, tit. Prescript.; Partid. tit. Prescription; Depositions in Commissioners’ Report; Depositions on South America; Certified Documents from Spain. Butler, Attorney-general, argued :—1. The decrees of the lieutenant-governors, relied on by the petitioners, were made in contravention of the laws, ordinances and regulations in force at the times when they respectively bear date, and which continued in force until the treaty of cession, and were, therefore, wholly void ; and being so, no valid claim under the treaty or the acts of Congress can be founded thereon. 2. The petitioners did not show, in either case, a title by prescription. Marshall, Ch. J., delivered the opinion of the court.—Auguste A. Chouteau and others, devisees of Auguste Chouteau, presented their petition to the court of the United States for the district of Missouri, praying that their title to 1281 arpents of land, near the town of St. Louis, in the state of Missouri, which they claim under the following circumstances, be confirmed. The late Auguste Chouteau applied to the then existing governor of Upper Louisiana, for permission to establish a distillery in or near the town of St. Louis; which permission was granted on the 3d of January 1800. He then petitioned for a concession for 1281 superficial arpents of land, to furnish firewood for his distillery ; which was granted in the following words: “St. Louis of Illinois, January 5th, 1800. “ Being satisfied that the applicant has sufficient means to make available in the terms, of the regulation of this province *the lands which he demands, the surveyor of this Upper Louisiana, Mr. Anthony L Soulard, will put him in possession of the one thousand two hundred and eighty-one arpents of land, in the place where he asks it; and afterwards, the applicant will have to solicit the formal title of concessions, of the intendant-general of these provinces, to whom belongs by order of his M—-, the disposing and conceding eyery kind of vacant lands of the royal domains. Charles Dehault Delassus ” The permission of the governor-general to erect the distillery, is alluded to in the following letter from him to Mr. Delassus. “New Orleans, May 20th, 1799. “ My dear friend Wishing to testify to you my esteem by every opportunity, I merely assure you of my esteem, promising to answer your etter by the boat that just arrived ; and which will leave here next week. In my instructions to Mr. Delassus, I recommend him particularly to favor all your undertaking, &c. Adieu : I am in such a hurry that I have but the time to tell you, that I am your sincere friend and most humble servant, Manuel Gayoso he Lemos.” The order of survey was executed on the 10th of April 1801, and the petitioner put into possession, which he retained till his death, having first 9 Pet.—7 97 143 SUPREME COURT Chouteau v. United States. [Jan’y made his last will, in which he devised it to the petitioners, who have taken all the steps required by law, to preserve their claim. The petition prays for a confirmation of the title. The answer of the district-attorney admits nothing, and submits the case to the court on the proof to be made by the petitioners. The erection of the distillery, and the manufacture of spirits to a considerable extent, the apparent motives to the grant, are fully proved. The distinction between the case of Chouteau and others, and that of Delassus, whose title has been confirmed, consists in this. The concession to Delassus was made by the lieutenant-governor of Upper Louisiana, by direction of the governor-general, at a time when the power of granting * , land was vested in *the governors of provinces. This power was J transferred to the intendant-general, in 1799, after which transfer, in 1800, the order of survey under which Chouteau claimed, was made by tbe lieutenant-governor. The validity of the order depends on the authority of the lieutenant-governor to make it. Chouteau alleges, in support of this authority, that the lieutenant-governor was also sub-delegate, in which character, he was empowered to grant incomplete titles. Several documents have been laid before the court, which satisfy us that the lieutenant-governors were, by virtue of their office, sub-delegates. In the record in Soulard’s Casey which we understand is to be considered as an exhibit in this, a letter from the lieutenant-governor, Delassus, to the surveyor-general, is introduced, in .which he recites a letter of Morales, the intendant-general, to him, dated the 1st of December 1802 ; informing him that in consequence of the death of the assessor, he had closed the tribunal of affairs and causes relating to grants and confirmations of royal lands. The letter adds : “ I make this communication, in order that, apprised of this providence, you may not receive, frame or transmit memorials soliciting lands, until further orders.” In a letter of the 26th of August 1799, addressed by Morales to Don Carlos Dehault Delassus, in which he notices instructions given by Delassus to Robert McKay, in his character of subdelegate, he observes, “ I must say, that it being contrary to law, that one sub-delegate should transfer his powers to another, the instruction given by you cannot nor ought to have effect; and the more so, as the sub-delegation of the intendancy is local.” In a certificate given by Don Gilberto Leonard, treasurer of the army, and Don Manuel Gonzalez Armirez, ministers of the royal treasury, &c., of the province of Louisiana, they certify, that in pursuance of a decree of the senior intendant-general ad interim, the senior colonel, Charles Dehault Delassus, formerly commandant of the port of New Madrid, and lieutenant-governor of St. Louis of the Illinois, with the sub-delegation of the royal treasury in both situations, &c. In the claims laid before the commissioners, and confirmed, are several which originated vrith Delassus, after the power of granting lands wastrans-*1451 ^erre<^ the governor to the *intendant-general. This very order of survey was executed by the surveyor-general, in 1801. Possession was delivered to Chouteau, which was retained by him during his life , an appears to have remained with his devisees since his death. On this point, the report made by the recorder and commissioners to congress, under the act of the 9th of July 1832, and the 2d of March 1833, cannot be disregarded. 98 1348] OF THE UNITED STATES. Chouteau v. United States. 145 They speak of the union of the two offices of lieutenant-governor and subdelegate, as being universally understood and admitted. Charles DehaultDelassus, lieutenant-governor of Upper Louisiana, whose deposition appears to be annexed to the report of the commissioners, deposes, “that all the lieutenant-governors of Upper Louisiana were, in virtue of their offices as lieutenant-governors, likewise sub-delegates ; that the offices of lieutenant-governor and sub-delegate were inseparable.” Morales, immediately after the sale of the royal lands had been transferred to his intendancy, assigns as one reason for issuing his regulations, “ that the commandants, as sub-delegates of the intendancy, may be informed of what they ought to observe.” If, as we think must be admitted, Delassus was sub-delegate as well as lieutenant-governor, the transfer of the power of granting lands belonging to the royal domain from the governor to the intendant-general, did not affect his power to give the order of survey on which the title of the petitioners depends. That order is the foundation of title, and is, according to the acts of congress and the general understanding and usage of Louisiana and Missouri, capable of being perfected into a complete title. It is property capable of being alienated, of being subjected to debts, and is as such to be held as sacred and inviolate as other property. The power of Lieutenant-governor Delassus, in his character of subdelegate, to make this order of survey, being established, all the principles settled in the preceding cases apply to this. No objection to the claim is perceived, and we think it ought to have been declared valid. The decree of the district court is reversed and annulled; and this court, proceeding to give such decree as the district court ought to have given, doth declare the claim of the petitioners to the tract of land in their petition mentioned to be valid, and doth confirm their title to the same, according to the boundaries ^thereof, as described in the survey made by Antonio Soulard, principal deputy-surveyor of Upper Louisiana, on the 5th *-day of March 1801, a certificate of which appears in the record dated the 10th day of April 1801. This cause came on to be heard, on the transcript of the record from the istrict court of the United States for the district of Missouri, and was argued by counsel: On consideration whereof, this court is of opinion, that e claim of the appellants is valid and ought to be confirmed. Whereupon, 1 o^ered, adjudged and decreed by this court, that the decree of the sai district court in this cause be and the same is hereby reversed and nu ed ; and this court, proceeding to pronounce such decree as the said is net court ought to have given, doth declare the claim of the petitioners o e valid, and doth confirm their title to the tract of land in their petition acc®rding to the boundaries thereof, as described in the survey the Soulard, principal deputy-surveyor of Upper Louisiana, on j ■^•arch 1801, a certificate of which appears in the record, dated the 10th day of April 1801. 99 *147 SUPREME COURT [Jan’y * Auguste Chouteau’s Heirs, Appellants, v. United States. Missouri land-claims. A concession of one league square of land, in Upper Louisiana, was made by Don Zenon Trudeau, the lieutenant-governor of that province, to Auguste Chouteau, and a decree made by him, directing the surveyor-general of the province to put him in possession of the land, and to survey the same, in order to enable Chouteau to solicit a complete title thereof from the governorgeneral, who, by the said decree, was informed, that the circumstances of Chouteau were such as entitled him to a grant of the land ; the land was surveyed, and the grantee put in full possession of it, on the 20th of December 1803 ; he retained possession of it until his death. The objection to the validity of the concession was, that the petitioner had not as many tame cattle as the eighth regulation of Governor O’Reilly, governor-general of Louisiana, required; that regulation required, that the applicant for a grant of a league square of land should make it appear, that he is possessed of one hundred head of tame cattle, some horses and sheep, and two slaves to look after them ; a proportion which shall always be observed for the grants, &c. In the spirit of the decisions which have been heretofore made by this court, and of the acts of confirmation passed by congress, the fact that the applicant possessed the requisite amount of property to entitle him to the land he solicited, was submitted to the officer who decided on the application, and he is not bound to prove it to the court which passes on the validity of the grant. These incomplete titles were transferrible, and the assignee might not possess the means of proving the exact number of cattle in possession of the petitioner, when the concession was made. The grant was confirmed. If the court can trust the information received on this subject, neither the governor nor the intendant general has ever refused to perfect an incomplete title granted by a deputy-governor or sub-delegate. The regulation made by Don O’Reilly, as to the quantity of land to be granted to an individual, is not, that no individual shall receive grants for more than one league square, but that no grant shall exceed a league square; the words of the regulation do not forbid different grants to the same person ; and, so far as the court are informed, it has never been so construed. Appeal from the District Court for the district of Missouri. Under the authority of an act of congress, entitled “ an act enabling the claimants of lands within the limits of the state of Missouri, and the territory of Arkansas, to institute proceedings to try the validity of their claims,” the appellants, on the 18th of May 1829, filed the following petition and documents. *14«! *“Tothe Honorable judge of the District Court of the United J States for the state of Missouri. Respectfully showeth, your petitioners, Auguste A., Gabriel Ceré, Henry and Edward Chouteau, René Paul and Eulalie his wife, Gabriel Paul and Louise his wife, Thomas F. Smith and Emilie his wife, that Auguste Chouteau, late of the city and county of St. Louis, state of Missouri, deceased, on the 5th day of January, in the year 1798, being then' a resident of the province of Upper Louisiana, presented his petition to Don Zenon Trudeau, lieutenant-governor of said province, and of the western part of the Illinois district, whereby he prayed that a tract of land, consisting of 7056 arpents, or a square league, situated on the Mississippi river, about fifty miles, more or less, distant from the town, o St. Louis, should be granted to your petitioner, for the purpose of enabling him to establish a grazing and agricultural farm thereon, when his means should permit him so to do. That on the 8th day of January, in the year last aforesaid, the said lieutenant-governor did, in compliance with the prayer of said petitioner, decree and direct that the surveyor of said province, on Antoine Soulard, should put your petitioner in possession of the an 80 100 1835] OF THE UNITED STATES. 14S Chouteau v. United States. prayed for, and should survey the same, and make a plat and certificate thereof, in order that the petitioner might make use of the same to solicit a complete title thereon from the governor-general of the province of Louisiana, who, by said decree, was informed, that the said petitioner’s circumstances were such as to entitle him to that favor. That in pursuance of said decree or order of possession and survey, the deputy-surveyor, Don Santiago Rankin, duly thereto authorized by the principal surveyor, the said Antoine Soulard, did, on the 20th day of December, in the year 1803, locate and survey said tract of a league square, on a part of the royal domain, about fifty-seven miles north of St. Louis aforesaid, and about three miles south of the Mississippi boundary ; the said 7056 arpents, on the north-west quarter north, by the lands of Don Joseph Brazeau, on the south-east quarter south, north-east quarter east, and south-west quarter west, by the royal domain lands; and said Don Santiago Rankin did, then and there, by virtue of the decree and authority aforesaid, deliver possession of said tract of a square league, so bounded and *located, to said Auguste Chouteau ; all which p* will more fully appear by the following documents here brought into court and ready to be produced, to wit: said original petition and decree, and by the certificate of survey, dated the 9th of December 1803, and duly signed and sealed by the said surveyor of the province of Upper Louisiana, Don Antoine Soulard, and which said survey is duly recorded in book B, folio 27, No. 26, now in the office of the surveyor-general of this district. And your petitioners aver, that said Auguste Chouteau, at the date of his said petition, and of said order or decree of said lieutenant-governor, and at date of said survey, was possessor of at least one hundred head of tame cattle, from two to three hundred hogs, from thirty to forty horses, about forty sheep, and from fifty to sixty slaves. The said original concession and survey have been submitted to the board of commissioners heretofore established for the adjudication of unconfirmed land-claims, and by it refused to be confirmed. Your petitioners further show, that at the date of said decree of concession and survey, and ever since, until his death, the said Auguste Chouteau has been a resident of the province of Upper Louisiana, or state of Missouri. That said Auguste Chouteau, by virtue of the act of congress in that case made and provided, procured the said tract and survey oe laid down on the general plat in the office of the register of the land-o ce of this district, and the same has been and is reserved from public sa e, until a decision shall be had by the proper authority thereon. That the sectional boundary lines on the general plat are as follows : commencing at t e north-west corner of Joseph Brazeau’s confirmed claim of 7056 arpents, . m t e south-east quarter of section No. 35, in township No. 52, north, of range No. 1, east; running thence, N. 30° E. 245 chains, to a point near the nie, etween sections No. 15 and 22, in township No. 52, north, of range o. 1, east; thence N. 60° E. 245 chains, to a point in section No. 12, in owns ip Ro. 52, north, of range No. 1, east; thence S. 30° E. 245 chains, to n 6 ?ort^’east cornei’ of the survey of Brazeau, before mentioned, in the quarter °f section No. 29, in *township No. 52, north, of to^ i0, .$’ ®ast ’ Whence, with Brazeau’s line, S. 60° W. 245 chains, so laid ,e^nn^n^’ Your petitioners further show, that no part o’f said tract, adve • C °Wn an^ surveyed> is occupied or claimed by any person or persons, eise to the title of your petitioners. Your petitioners further show, that 101 150 SUPREME COURT [Jan’y Chouteau v. United States. Auguste Chouteau has departed this life, and that previous to his decease, he devised to your petitioners the said tract of 7056 arpents, by his will, duly executed, and now ready to be produced. Wherefore, your petitioners pray, that the validity of the claim and title to said square league, as hereinbefore set forth, may be inquired into and decided upon by this honorable court; and that, inasmuch as the same might have been perfected into a complete title, under and in conformity to the laws, usages and customs of the government under which the same originated, had not the sovereignty of the country been transferred to the United States, your petitioners pray, that the said title and claim be confirmed to said tract of land so surveyed, bounded and located as aforesaid ; and your petitioners pray, that a citation be directed to the district-attorney of the United States, requiring him, on a day certain, to appear and show cause, if any he can, against the decree prayed for by your petitioners.” The documents referred to in the foregoing petition of the heirs and devisees of Auguste Chouteau, deceased, translations of which were filed in evidence on the hearing of said cause, being truly copied, were as follows, to wit z u To Mr. Zenon Trudeau, lieutenant-colonel, captain in the first regiment of Louisiana, and lieutenant-governor of the western part of Illinois. “ Auguste Chouteau, merchant, of this town, has the honor to represent to you, that having heard it reported, that there were good lands on the Mississippi river, at about fifty miles of this town, and being possessed of sufficient means to establish a grazing farm, has the honor to request you to have the goodness to grant him, at the place above named, a league square of land, or seven thousand and fifty-six arpents in superficies, a quantity * never was refused, either in the *lower or upper part of this J colony, for similar establishments ; the supplicant having also the project to establish on the said land a considerable farm, hopes that you will favor his views, which cannot but be advantageous to the safety of those establishments, and to the internal communication, by keeping away the Indians, who, at divers periods of the year, spread themselves in our neighborhoods to lay waste our farms that are too far apart from each other to lend the necessary assistance in similar cases. Your suppliant, confident in your justice and in the generosity of the government of which you are the representative, hopes that you will grant his request. “St. Louis of Illinois, January 3d, 1798. Auguste Chouteau.’ “St. Louis of Illinois, January 8th, 1798. “ Being satisfied that the land applied for belongs to the king’s domains, the surveyor, Antoine Soulard,' will put the applicant in possession of the same, and afterwards make a report of his survey, in order that it may serve in soliciting the concession of the governor-general of this province, o whom I give the information that the said applicant is in the circumstances which merit this favor. Zenon Trudeau. A survey of the land was returned by the deputy-surveyor, on the 29t of December 1803. , The district-attorney of the United States filed an answer, denying t e 102 1834] OF THE UNITED STATES. Chouteau v. United States. 151 validity of the claim of the petitioner, and by a decree of the district court the petition was dismissed. From this decree, the petitioners appealed. The case was argued by White, for the appellants; and by the Attorney-General, for the United States. Marshall, Ch. J., delivered the opinion of the court.—This is an appeal from a decree of the district court of Missouri, sitting under the act of the 26th of May 1824. The devisees of Auguste Chouteau, a citizen of Missouri, presented their petition to the district court, in which they *state, that their testator, on the 8th day of January 1798, being then „ a resident of Upper Louisiana, obtained from Don Zenon Trudeau, L lieutenant-governor of that province, a decree directing Don Antonio Soulard, the surveyor-general of the province, to put the said Chouteau in possession of the land prayed for ; and to survey the same, and make a plat and a certificate thereof, to enable the said Chouteau to solicit a complete title thereon from the governor-general; who, by the said decree, was informed, that the said petitioner’s circumstances were such as to entitle him to that favor. In pursuance of this decree, the survey was executed on the 20th of December 1803, and the said Chouteau put into possession of the tract surveyed, amounting to one league square, which he retained till his death, when he devised it to the petitioners, who have remained in possession ever since. All the steps required by law for the preservation of the title acquired by the decree of the lieutenant-governor, have been taken. The petitioners pray that their right and title to the land they claim may be confirmed. The answer of the district-attorney admits nothing, and refers the claim to the court. Some testimony was taken, to show that the said Auguste Chouteau was, at the date of his petition, and of the decree of the lieutenant-governor, and at the date of the said survey, possessed of at least one hundred head of tame cattle, from two to three hundred hogs, from one hundred and forty to one hundred and fifty horses, about forty sheep, and from fifty to sixty slaves. The United States gave in evidence a petition of the said Auguste Chouteau, presented on the 24th day of January 1798, to the lieutenant-governor of Upper Louisiana, praying for a concession of 7056 arpents of lands, situated on the north bank of the Missouri, about 205 miles from its mouth ; which petition was granted on the succeeding day. A survey of this tract was executed on the 17th of March 1801 ; and it appears to have been conveyed by Auguste Chouteau to Daniel Clarke, by deed bearing date the 8th of September 1804. This claim was offered to the board of commissioners, ut being “unsupported by actual inhabitation and cultivation,” was rejected. The board, at the same time, observed, that the said concession is not duly registered. The or>ly objection which can be made to the validity of this concession is, that the petitioner did not possess as many tame cattle as the regulations o Reilly required. The eighth article of those regulations declares, that o grant in the Opelousas, Attacapas and Natchitoches shall exceed one eague in front by one league in depth. The ninth is in these words, “ to ° tam in the Opelousas, Attacapas and Natchitoches, a grant of forty-two arpents in depth, the applicant must make it appear that he is possessed of 103 163 SUPREME COURT Chouteau v. United States. [Jan’y one hundred head of tame cattle, some horses and sheep, and two slaves to look after them ; a proportion which shall always be observed for the grants to be made of greater extent than that declared in the preceding article.” There is some confusion in these two articles, which would lead to a suspicion that the translation may not be accurate. The eighth declares that no grant shall exceed a league square; and the ninth, if it be understood literally, professes to prescribe the property which the applicant must possess to entitle him to a larger quantity than a league square. It is also observable, that this article is limited to the three districts mentioned, which are not in Upper Louisiana ; and that they are peculiarly adapted to a grazing country, and to a grazing country only. There could be no motive for apportioning one hundred head of cattle to two slaves, in an agricultural country. It is probable, that if the regulations of O’Reilly were extended to Upper Louisiana, they were extended with modifications, at least, of the ninth article; so as to adapt the proportions of property required to the country to which the article was extended. This supposition derives great strength from the fact that the lieutenant-governor, who must have understood his orders, certifies to the governor, in his decree, “ that the said applicant is in the circumstances that merit this favor.” The appellant is proved to have possessed more slaves than was required by the ninth article of O’Reilly’s regulations, though not so many tame cattle. * _ We think also, that in the spirit of the decisions which have *been • * heretofore made by this court, and of the acts of confirmation passed by congress, the fact that the applicant possessed the requisite amount of property to entitle him to the land he solicited, was submitted to the officer who decided on the application, and that he is not bound to prove it to the court which passes on the validity of the grant. These incomplete titles were transferrible, and the assignee'might not possess the means of proving the exact number of cattle in possession of the petitioner, when the concession was made. It is remarkable, that, if we may trust the best information we have on the subject, neither the governor nor intendant-general has ever refused to perfect an incomplete title granted by a deputy-governor or sub-delegate. We cannot allow this objection to prevail. The objection drawn by the United States from the concession made on the 24th of January 1798, is not, we think, entitled to more weight. Ihe eighth regulation made by O’Reilly, is not, that no individual shall receive grants for more land than one league square, but that no grant shall exceed one league square. The words of the regulation do not forbid different grants to the same person ; and so far as our information goes, it has never been so construed. Neither of these grants, so for as we understand the geography of the country, lies in Opelousas, Attacapas or Natchitoches. It does not appear, that the grant made on the 24th of January has been established, and the record shows that it was rejected by the board o commissioners, for reasons on the sufficiency of which we do not now decide. But it is conclusive, that the concession of the 24th of January was subsequent to that of the 8th, and consequently could not affect it. We are opinion, that the district court erred in declaring the concession made to Auguste Chouteau, on the 8th of January 1798, to be invalid, an that the same ought to be confirmed. The decree of the district court is 104 1835] OF THE UNITED STATES. 154 Hiriart v. Ballon. reversed and annulled, and this court, proceeding to give such decree as the district court ought to have given, doth declare the claim of the petitioners to the tract of land in their petition mentioned, to be valid, and doth confirm their title to the same, according to the boundaries thereof, as described in the survey made by James Rankin, *deputy-surveyor, and certified by Anthony Soulard, principal deputy-surveyor of *-Upper Louisiana, as appears by his certificate of the 29th of December 1803, contained in the record. This cause came on to be heard, on the transcript of the record from the district court of the United States for the district of Missouri, and was argued by counsel: On consideration whereof, this court is of opinion, that the claim of the appellants is valid, and ought to be confirmed. Whereupon, it is ordered, adjudged and decreed by this court, that the decree of the said district court in this cause be and the same is hereby reversed and annulled ; and this court, proceeding to pronounce such decree as the said district court ought to have given, doth declare the claim of the petitioners to the tract of land in their petition mentioned, to be valid, and doth confirm their title to the same, according to the boundaries thereof, as described in the survey made by James Rankin, deputy-surveyor and certified by Antonio Soulard, principal detputy-surveyor of Upper Louis, iana, as appears by his certificate of the 29th December 1803, contained in the record. *Sebastian Hieiart, Plaintiff in error, v. Jean Gassies Ballon. [*156 Louisiana practice. The district court of the United States for the eastern district of Louisiana, in conformity with tne provisions of the act of congress of the 26th of May 1824, adopted, as a rule of practice in that court, the regulations established by a law of Louisiana, by which, on appeal bonds, when the appellants failed in their appeal, on the coming in of the decree or judgment of the appellate court, a summary judgment, on motion, should be entered against principal and sureties in the appeal bonds. nder this rule, after the affirmance of a decree of the district court by the supreme court of the United States, and the filing of the mandate of the supreme court, the district court, on a motion for a rule on the surety in an appeal bond to show cause why judgment should not be entered against him, on the first day of the next term, and no cause being shown, entered a judgment against the surety. The party against whom the judgment was entered, afterwards came into court, and prayed a rial by jury, which was refused ; and he prosecuted this writ of error, to reverse the judgment of the district court refusing the said trial. e the district court of Louisiana follows the analogy of the laws of Louisiana, being modified only so far as is proper to suit the organization of the courts of the United States, an to conform to the laws thereof; the summary judgment is therefore strictly authorized, and e party had no right to a trial by jury. In becoming a surety, he submitted himself to be governed by the fixed rules which regulate the practice of the court. aPPeal was taken in the same case to a decree of the district court dissolving an injunction, ough this appeal was not before the coiAt, the court said, the decree being only interlocu-Oener ^na'’ *s subject of an appeal. ra rules for the government of the United States court in the eastern district of Louisiana w amts in that court. [See note a.] 105 166 SUPREME COURT Hiriart v. Ballon. [Jan’y Error to the District Court for the Eastern District of Louisiana.(a) * -J *This case was submitted to the court by Benton, for the appellee, J on a printed statement. (a ) The record in this case contained the “ General Rules ” for the government of the United States court in the eastern district of Louisiana, in civil causes and suits at law, as contradistinguished from admiralty and equity causes and criminal prosecutions, made in pursuance of the 17th section of the judiciary act of 1789, and of the first section of the act of congress of the 26th of May, 1824, entitled li an act to regulate the mode of practice in the courts of the United States for the district of Louisiana.” It has been considered useful, by the reporter, to insert these “General Rules ” in this volume. “At a stated session of the court of the United States of America for the eastern district of Louisiana, held at the city of New Orleans, on Monday, the 14th day of December, Anno Domini 1829. Present the Honorable Samuel H. Harpeb, judge of said court. Ordered,, that the following rules be adopted by this court; and all other rules for the practice of this court are annulled, from and after this date.” GENERAL RULES. I. Suits at law shall be commenced by writ or process, under the seal of the court, and signed by the clerk, and be tested in the name of the judge (or if that office shall be vacant, of the clerk), and shall issue in the name of the President of the United States, to the marshal of the district, commanding him to arrest or summon the defendant (as the case may be), and shall be returnable on the first day of each term. II. A petition, addressed to the court, should accompany the writ; it shall state the nature of the case with sufficient precision of circumstances, time and place; which petition shall be signed by the party or his counsel, and shall contain a prayer adapted to the nature of the case; and whatever documents are referred to in the petition, as making part thereof, shall be filed with it, or if copies thereof are annexed, the defendant or his attorney shall have oyeu of the original, if he demand it, before he shall be required to file his answer or plea. The writ and petition being filed, a copy thereof shall be made in the French and English languages (in cases where the mother tongue of the defendant is French), and, together with the original writ of process, be delivered to the marshal, who shall serve said copy on the defendant, by delivering the same to him personally, or by leaving it at his usual place of abode, ten days before the day of return mentioned in the writ, allowing one day in addition for every twenty miles the defendant may reside from New Orleans. The writ or process shall run in the words which have hitherto been adopted in this court. The marshal shall, whenever any writ or process shall have been served, indorse on the same the time o service, and its distance from the city, if the same be made out of the limits thereof. III. The answer or defence of the defendant shall be signed by him or his attorney, and filed with the clerk, in the English and French languages (if the mother tongue o the plaintiff be French), on or before the first day of each term; and if no defence or answer shall be filed, nor time given for answer, the court shall, at the first day o sitting thereafter, on the application of plaintiff, cause judgment by default to e entered against the defendant, which, if not set aside within three days thereafter, ® court shall, if required, enter up final judgment against the defendant; if the deman be liquidated by a note, bond, contract or former judgment, and if the sum deman e be uncertain, the court shall proceed to hear testimony, assess the damages, and ren e final judgment for the sum so assessed. . x IV. The answer shall contain nothing impertinent or irrelevant; but the defen a shall be required to plead all such matters of law and fact in the same answer as may think proper to rely on, conformably to,the rules of practice adopted by ® judicial court of the state of Louisiana, prior to the adoption of the “ Code of rac?C \ and in all cases where matters of law submitted to the court, shall be argue determined, before the issues of fact shall be submitted to the jury. 106 1835] OF THE UNITED STATES. Hiriart v. Ballon. 157 The appellee in this case, who was the plaintiff in the court below, instituted his suit in the district court of the United States for the eastern district of Louisiana, against one Pierre Gassies, and obtained a judgment V. The clerk shall keep a docket in which all cases that are at issue shall be entered in the following order: 1. Causes in which both issues to the court and to the country are made up. 2. United States causes of a general nature, and criminal prosecutions. 3. Jury causes, other than those of the United States. 4. Court causes, or suits to be tried by the court alone. 5. All admiralty causes (the United States admiralty causes having precedence on the list). And in setting the causes for trial, they shall be called in the order thus prescribed. VI. All causes at issue, whether in point of law or fact, shall be called on the second day of each term, at the meeting of the court; and set down for trial, In all cases in which pleas both to the court and country are made, the pleas involving matters of law, or issues submitted to the court alone, shall be first tried; and such of them as may be directed to be tried on the issues of fact, shall be immediately transferred to the jury docket, to be tried on the merits, during the same term, in the discretion of the court. In all cases in which dilatory or declinatory pleas or exceptions to form are made and overruled, the party making such plea or pleas, or exceptions, shall pay to the plaintiff all costs of suit up to the time of their being decided against him; and when a plea is made to the jurisdiction of the court, involving the question of citizenship of a party, it shall be tried by a jury; and if the verdict sustains the jurisdiction, all costs shall be paid to the plaintiff, and the cause shall be immediately tried by the same jury on its merits, at the option of the plaintiff, if, by the pleading, it be a jury cause; if not, it shall be forthwith submitted to the court for decision. VII. If it be the intention of a party to take an issue on the fact, he must expressly pray for a jury ; otherwise, the cause shall be wholly tried by the court (except cases where the law itself requires a jury), and shall be put in the fourth class of cases on the docket. VIII. When a jury is about to be sworn in a cause, each party may peremptorily set aside three of them, but no more, except for a legal cause. IX. The clerk shall enter no cause on the docket, until the pleadings are fully made up, nor shall any cause be entered thereon, except by the clerk or his deputy. X. If any docketed cause shall be called at two courts, and not tried, the plaintiff shall be called, and if he does not immediately go to trial, he shall be nonsuited, unless it shall appear, that it had been continued at defendant’s motion, or other satisfactory cause shall be shown to the court, on oath, to prove it was not postponed on account of the plaintiff’s neglect, or unless the defendant, at such second calling, 8 . obtain a further continuance; but nothing in this rule shall be construed to prejudice defendant’s right of calling for a nonsuit, at any previous court. . “ a cause is at issue, and either party move for a continuance of it, on account e absence of a witness, such motion must be on oath or affrmation of the party, s agent or attorney, in writing, subscribed by him, stating that some witness, residing within the reach of the process of the court (who shall be named and the place of is residence mentioned), is wanting; that he believes that such witness is a material an competent witness in the cause; aud to satisfy the court of his materiality, shall thaf6 or ^ac^s it i® expected or believed the witness will prove on the trial; t 4 a k reasonabie endeavors have been used to procure his attendance at the ^erm, that he cannot safely go to trial without the benefit of his testimony; and that C0C<^ muance is not prayed for the purpose of delay. If an application be made for a ins' an^ a^so i°r a commission to procure evidence (the other party not consent-the t affidavit must state what fact or facts it is believed will be proven on can cause> that the testimony sought is competent and material, that he in a*10 to trial without the benefit of it, that he believes it can be procured Cer in time, which shall be specified, and that the application is not made for 107 *1S8 SUPREME COURT Hiriart v. Ballon. [Jan’y against him in the due course of law, *for the sum of $3100, with interest at the rate of five per cent, from the 1st of December 1829, until paid, and costs of suit; from which judgment an appeal was taken to this court by the said Pierre Gassies, who gave, as surety to the appeal bond, delay. If a commission issue, interrogatories must be filed, as directed in the following rule. XII. The clerk is authorized, in vacation, on the written application of the plaintiff, or his attorney, to enter the discontinuance of a cause, and with consent of counsel, written, signed and put on file, to enter on the minutes, rules and orders, preparatory to trial of causes pending therein, and to issue commissions to take testimony, in all cases, at the instance of either party; and if it be not the intention of the party taking out the commission to take testimony de bene esse, under the 30th section of the judiciary act of 1789, he shall file interrogatories and serve a copy thereof on the opposite party or his counsel, who may, if he thinks proper, add cross-interrogatories, and return the whole to the other, within three days, or, in default thereof, the commission may be executed without the cross-interrogatories. XIII. No amendment shall be made to any petition or answer, unless it he made previous to setting the cause for trial (except as to mere matters of form, which may be made at any time before trial), and no amendment shall be made, at any time, tending wholly to alter the nature of the action or defence. XIV. In all rules to show cause, the party called upon shall begin and end his case; and on special matters, either springing out of a cause at issue or otherwise, the actor or party submitting a point to the court, shall, in like manner, begin and close; and so shall a defendant who admits the plaintiff’s case and takes upon himself the burden of the proof, have the like privilege. XV. In all cases of affirmance of judgment on writs of error from judgments pronounced in this court, a rule may be taken on the principal and his sureties in the appeal bond, returnable ten days after recording the mandate of the supreme court, to show cause why execution should not issue against them; and, no cause being shown, judgment shall be entered against them and the principal, and execution issue accord-ingly' XVI. Upon the return of an award or umpirage, a three-day rule shall be served upon the party or his attorney, against whom the award or umpirage may be; and should the same be confirmed by the court, judgment shall thereupon be entered and execution issue, in the same manner as if judgment had been obtained on verdict. XVII. Every motion made for any rule or order shall be submitted to the court in writing, by the counsel who makes it, and if granted by the court, shall be delivered .to the clerk to be entered on the minutes. XVIII. Not more than two counsel shall be permitted to argue on the same side of a cause, without leave of the court. XIX. All applications for new trials shall be made within three days after the verdict of the jury, or judgment of the court (as the case may be;) and, if no sue application be made, or being made, shall be overruled, judgment shall be signe , and execution issue, if required. XX. Counsellors and attorneys licensed by the supreme court of this state, may be admitted as such in this court; but no attorney, in fact shall be permitted to appear as an attorney-at-law, to prosecute or defend any suit. XXL After the argument of a cause upon matters of law, submitted to the cour , a statement in writing of the points relied upon, and a note of the authorities cite , may be required of the counsel on both sides, by the court, before giving judgment thereon XXII. In all cases where a sum certain is sworn to be due from defendant plaintiff, special bail shall be ordered; and in all other cases, affidavit being m e of the facts, the judge (or, in his absence, the clerk) shall order the defen an o 108 1835] OF THE UNITED STATES. 158 Hiriart v. Ballon. the present appellant, in the penalty of $4500, which appeal was heard in this court, at January term 1832. *(6 Pet. 761.) A judgment con-firming the judgment below was rendered ; and upon such judgment L held to bail, in such sum as he may think just; but -no attorney-at-law shall be received as special bail. XXIII. The marshal shall not be bound to serve any subpoena on a witness, on the day on which the cause is set for trial, wherein such witness is required, unless specially directed to do so by the court. XXIV. It shall be the duty of the marshal to summon juries, according to law, to serve at each stated term of the court, and he, or his deputy, shall serve a written summons on each juror, expressing the day, hour and place, at which he is to appear, and also whether he is to serve as a grand or a petit juror. XXV. To all the writs of venire, issued for summoning jurors, the marshal or his deputy shall make a return, upon oath, written at length, before the clerk pf the court, and in the said return shall make one class of those who were summoned personally, a second class of those for whom summonses were left at their houses, and a third class of those who could not be found. XXVI. The clerk shall keep a book, in which shall be entered the names of all persons who shall be summoned as jurors, and on every call of the names, shall note opposite each name, the presence Or absence of the juror; or if any juror, once im-pannelled, shall refuse or neglect to attend punctually every morning, on the call of the pannel, unless previously excused by the court, he shall be cited to show cause why he should not be fined for his default; and if he show no sufficient cause, he shall be fined, or otherwise punished, according to law. XXVII. All moneys paid into the court of the United States, or received by the officers thereof, in causes pending therein, shall be immediately (that is, the day after that on which they shall be received) deposited in the branch bank of the United States, in the name and to the credit of said court; and at each stated session of the court, the clerk thereof shall present an account to the court of all moneys remaining therein, subject to the order thereof, stating particularly on account of what causes said moneys are deposited; which account, with the vouchers thereof, shall be filed in court. XXVIII. All notes and obligations, and the gross amount of moneys arising from the sale of property, in pursuance of any order or decree of this court, shall be paid into court by the marshal, to be deposited in the branch bank; and an account of sales of such property, so disposed of, shall be filed in court, at the same time; and in the cases mentioned in this and the preceding rule, the costs and charges of the suit shall be taxed and first paid out of the moneys in court. XXIX. Money deposited in court, pending a suit, shall not be delivered on bond to any party or person. GENERAL RULES OF PRACTICE IN ADMIRALTY. L The material facts in a libel (except in case of a libel for seamen’s wages, or w ere the United States are libellants) must be sworn to by the libellant, his agent or-torney, before an order for admiralty process shall issue, and every claim must be ir?n like manner, before filing the same. , u k ** ^en Process is in rem, and a party is also personally cited, the citation and h ma^e retnrnable at the same time with the warrant, to wit, in fourteen days; „ , ,en the proceeding is altogether in personam, the process shall likewise be returnable in fourteen days. , ’Ji aH cases of seizure and prosecution of any ship or vessel, goods, wares and ac^f*9 ISe’ w^en the claimant may bond, of right, under the 89th section of the 0 nd of March 1799, ‘to regulate the collection of duties on imports and ton- 109 159 SUPREME COURT Hiriartv. Ballon. [Jan’y and mandate of this court, in due course of proceeding, an execution issued against the property of said Pierre Gassies. After various proceedings had relative thereto, the marshal of the said district made his return in said case, nage,” and in all other cases where the district-attorney is consenting to such bonding, the same may be done in the manner directed by the said section, the district-attorney naming the appraisers and approving the security. IV. The clerk, or, in his absence, the deputy-clerk, be and he is hereby appointed a commissioner, before whom appraisers of ships or vessels, or goods, wares and merchandise, seized for breaches of any law of the United States, may be sworn or affirmed. V. Appraisers, acting under the orders of the court, shall be severally entitled to receive five dollars in each case wherein they may make an appraisement, to be paid by the party at whose instance the appraisement shall be made. VI. All appraisements and bonds taken in pursuance thereof, shall be copied at length in a book to be kept for that purpose, and the originals filed in court. VII. No vessel or merchandise, in the custody of the marshal shall be released upon bond, until the costs and charges of the officers of the court (so far as the same may have accrued) shall be paid by the party giving bond. VIII. When property is in the hands of the marshal, he shall be authorized, from time to time, on motion to that effect, to sell so much of the same at public auction, after notice, as may be necessary to defray the costs and charges incident to the keeping of the same. IX. Moneys paid into court shall not be paid out, in pursuance of any decree of the same, upon which an appeal may be had, until ten days (exclusive of Sundays) shall have elapsed after such decree shall have been made; and when an appeal shall be entered, the appellant shall, within ten days, exclusive of Sundays, from the time of making the decree, give security for damages and costs; and if security shall not be given within that time, the decree may be executed as if there had no appeal been prayed for. X. In proceedings touching seamen’s wages, when a party is cited to show cause against the issuing of admiralty process, oath must be made of the service of such citation, in case the party cited does not appear, except the citation has been returned, and served by the marshal, or his deputy. XI. No claim shall be filed, after the expiration of monition, or return-day of the warrant, without the leave of the court, or by consent of the parties libellant, in writing, and put on file. XII. In all cases in which the United States are libellants, the clerk is authorized to issue admiralty process, without an order from the judge. ADDITIONAL RULES. I. No denial of the allegation of citizenship made in a petition, nor any dilatory exception or plea in abatement, involving matters of fact, shall be allowed, unless ver ified by affidavit filed therewith, by the counsel, agent or party, as to their belief o the truth thereof. 20th March 1830. II. The testimony of witnesses given at the bar, shall not be reduced to wri mg by the clerk of the court, or any other person in trials at law, as contradistinguis e from admiralty and equity causes. . III. Facts shall not be submitted to a jury, in order to obtain a special ver i in any cause, except by the consent of parties entered on record. . IV. No verbal agreements or arrangements of parties, or their counsel, ouc mg any cause depending in this court, shall be deemed of any validity, or notice in an way by the court. 14th June 1830. ' . .. + V. It is ordered, that the twelfth rule of the rules of this court relating o sui 110 1835] OF THE UNITED STATES. Hiriart v. Ballon. *160 that the sum of $375.50 *alone had been made from the property and estate of said Pierre Gassies; for which sum a credit was given upon the execution, the 31st of January 1833. Upon the 13th of April, 1833, a motion was made in the district court, that Sebastian Hiriart, the appellant, show cause, on the first day of the next term, why judgment should not be ^entered against him, for the r-, amount of the judgment, damages, interest and costs ; and why exe- L cution should not issue against him. At the proper time, the said appellant filed his answer ; and after argument, &c., judgment was given against the appellant, upon said appeal bond ; and the appellant prosecuted this appeal. Execution issued upon this judgment on the first *of July 1833, and * was levied upon his property, but the sale of it was stayed by an in- 1 junction issued by the judge of said district court, upon the 27th of July 1833. On the 28th of December 1833, the said injunction was dissolved, from which dissolution of the injunction the appellant prayed an appeal to this court. The district judge refused to allow this writ of error, assigning for the same the following reasons : *“The act of congress forbids any writ of error or appeal to be rsjs taken, except from a final judgment. The supreme court of the L United States, in the case of Weston v. City Council of Charleston, 2 Pet. 449, have given a judicial definition of this word ‘final.’ It is there said, ‘the wordyma? must be understood, in the section under consideration, as applying to all judgments and decrees which determine the particular cause.’ That is, as I understand it, only such judgments as conclude the rights of the party can be considered final in the sense of the law. *In rsK the case under consideration, the rights of the party complainant, as L to his liability to pay this debt (for that was his own stipulation in case the principal did not), were passed upon, at the time the judgment below was affirmed, and at all events, when judgment was given against him on the rule to show cause as above referred to, then perhaps he might have defeated the obligation by the plea ‘ non est factum? or some other ; but the dispute now is merely as to the remedy sought to enforce a right already determined by both courts. “In the case of Young v. Grundy, 6 Cranch 51, it is said, ‘an appeal does not lie from an interlocutory decree dissolving an injunction.’ And in Gibbons y. Ogden, 6 Wheat. 448, the’court say, ‘ nor from a decree affirming a decretal order of an inferior court refusing to dissolve an injunction.’ lam aware, that the technical expression, ‘interlocutory judgment,’ is usnally applied to incidental orders, made in the progress of a cause, not affecting the main question to be afterwards determined by the court; but a incidental orders are ‘ interlocutory,’ whether they be made pending or aw, be so . amended, as to allow plaintiffs in all cases to take out commissions to examine witnesses after the return of service of process; the plaintiff serving the n ant with a copy of his interrogatories, as heretofore required : and when e en ant resides in the country, he shall be allowed, in addition to the time now o* ^nbec*’ one day for every twenty miles’ distance he may reside from the city shall^r^eans’ cross-interrogatories; commissions on the part of defendant issue only after issue joined, and in conformity with the previous practice of court. 28th May 1831. 111 164 SUPREME COURT [Jan’y Hiriart v. Ballon. after the determination of the main question, and these orders may be made so long as the case is within the control of the court, and all cases are within the control of the court until its judgment is fully executed. When an injunction is obtained, suspending an execution, the object is not to bring the judgment itself into review, but to inquire whether an improper attempt is made to enforce it. Injunctions are grantable at chambers. Now, it will not be pretended, that a verbal refusal of a judge to grant an injunction would sustain an appeal; but if he should, through inadvertance, grant it, when no equity appeared on the face of the petition, or on further examination, it should be found to be unfounded, and he should then refuse to perpetuate it, what difference is there in reason, why a refusal to make it operative, after a full investigation of its merits, should give the party any more right to appeal, than his refusal in the first instance? It may be said, that when a dispute arises as to the right of a party to appeal, the case ought to be sent up to the appellate court for its determination as to that right. To this there are two answers: 1. Where the law itself has fixed the amount from which an appeal can be taken, and that amount is palpably *below the sum so fixed; or when the appellate court has J given a construction to the law embracing the right of a party to appeal, in the given case, as I conceive has been done in cases similar to this, it would be treating the court with disrespect, to send to it a case, of which, according to settled law, it could not take cognisance. 2. However much I am disposed to have my decisions reviewed, yet I am as much bound to guard the rights of one party as the other; and when my judgment is convinced, that the law does not authorize an appeal, and which if granted would operate injuriously to the other party, I feel bound to refuse it. Besides, if this party has a right to appeal, upon the ground stated, his security in the appeal bond, in case of his insolvency, would have the same right, on making a sufficient oath, to obtain an injunction, and so on ad infinitum?' After the order to dissolve the injunction, the plaintiff below took out an alias execution against the property of Sebastian Hiriart, the prior execution having been returned into court. On the 12th of April 1834, Mr. Slidell, counsel for Hiriart, obtained, on motion, an order that the defendant, Jean Gassies Ballon, show cause, on Monday, the 14th instant, at 11 o’clock, A. M., why the execution issued in this case should not be quashed, and all further proceedings on the judgment rendered in this case suspended, on the ground, that the supreme court has accorded a writ of error which had been refused by this court, before the execution issued. And on the 14th of the same month, the following order was made. “ The rule taken by the plaintiff on the defendant came on this day before the court, when, no opposition being made by the counsel for the defendant, it is ordered, that the same be made absolute, on condition that the plaintiff enter into bond, with good and sufficient sureties, to respond to the judgment enjoined against by the plaintiff.’’ The questions submitted to the court, on the part of the defendant in error, were : whether there was error in the proceedings of the district court of Louisiana in the refusal of the writ of error? and whether t e judgment and decree of the said court ought not to be confirmed, wit damages ; the present application being made for delay only ? 112 1835] OF THE UNITED STATES. *166 Hiriart v. Ballon. *Story, Justice, delivered the opinion of the court. — This is a writ of error to the district court of the eastern district of Louisiana. The plaintiff in error was surety in an appeal bond given upon a writ of error to a judgment of the district court of Louisiana, rendered in 1830, in a suit of Jean Gassies Ballon v. Pierre Gassies; which judgment was affirmed in the supreme court of the United States in 1832. Upon the cause coming back to the district court, upon the mandate of the supreme court, execution issued against the judgment debtor, Pierre Gassies, and was returned satisfied in part. Upon motion afterwards made, and due notice to Hiriart, a summary judgment was entered against him upon the appeal bond ; in pursuance of a rule of the district court. The rule is in the following words : “In all cases of affirmance of judgment, on writs of error, from judgments pronounced in this court, a rule may be taken on the principal and his sureties in the appeal bond, returnable ten days after recording the mandate of the supreme court, to show cause why execution should not issue against them ; and no cause being shown, judgment shall be entered against them and the principal, and execution issue accordingly.” Hiriart showed for cause (among other things not necessary to be stated, as they are not cognisable on a writ of error), that the proceeding was irregular, and that, if liable on the bond, his liability must be established by an ordinary action, before a competent tribunal. The district court, notwithstanding, entered the summary judgment ; and the writ of error is taken to this judgment. The principal point relied on seems to be, that the party was entitled to a trial by jury, and that no such summary judgment is authorized by law. Whether this objection is well founded depends upon the act of congress of the 26th of May 1824, for the regulation of the practice of the district court of Louisiana. That act declares, that the mode of proceeding in civil causes, in the courts of the United States in Louisiana, shall be conformable to the laws directing the mode of the practice in the district courts of the states ; with a power in the judge, to make rules to adapt such laws of procedure to the organization of the courts of the United States. The laws of Louisiana allow appeals from the district courts of the state, to the supreme court, upon giving an appeal bond with security ; *and authorize a sum-mary judgment upon such appeal bond, upon mere motion, in the L court from whence the appeal was taken, in execution of the judgment of the appellate court, (a) The rule of the district court of Louisiana, therefore, follows the analogy of the laws of Louisiana, being modified only so far as is proper to suit the organization of the courts of the United States, and to conform to the laws thereof. The summary judgment, therefore, was strictly authorized ; and the party appellant had no right to a trial by jury. In becoming a surety, he submitted himself to be governed by the xed rules which regulate the practice of the court. The judgment is a rmed, with damages at the rate of six per cent., and costs. t may be added, to prevent misapprehension, that there is also, in the same record, an appeal taken to a decree of the district court, dissolving an injunction to the judgment granted upon a petition in the nature of a bill equity. This appeal is not before us ; and being only an interlocutory an not a final decree, it is not the subject of an appeal. (°) See Code of Procedure of Louisiana, art. 570, 573, 575, 579, 596, 597. 9 Pet.—8 u9 167 SUPREME COURT 1 Jan’y United States v. Clarke. This cause came on to be heard, on the transcript of the record from the district court of the United States for the eastern district of Louisiana, and was argued by counsel: On consideration whereof, it is adjudged and ordered by this court, that the judgment of the district court in this cause be and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum. *168] *Untted States, Appellants, v. George J. F. Clarke. Florida land-claims. The decree of the supreme court of East Florida, confirming a concession of land to the appellee granted to him by Governor Coppinger, in December 1817, confirmed. A concession on condition, becomes absolute, when the condition is performed. The original concession by Governor Coppinger, on the petition of George J. F. Clarke, was made on the 17th December 1817, of 26,000 acres of land, in the places he solicited in his petition, and a complete title was made of 22,000 acres, part of the same, in December 1817 ; 20,000 acres, part of the whole concession, were sold by the appellee; the other 4000 were surveyed in conformity with the deeree of 17th of December 1817, and a complete title to the same was made by Governor Coppinger, on the 4th of May 1818. The claimant cannot avail himself of the grant of the 4th of May 1818, made after the 24th of January 1818, the time limited by the Florida treaty; he must rest his claim on the concession made on the 17th of December 1817. The validity of concessions of land by the authorities of Spain, in East Florida, is expressly recognised in the Florida treaty, and in the several acts of congress. The eighth article allows the owners of land the same time for fulfilling the conditions of their grants, from the date of the treaty, as is allowed in the grant from the date of the instrument; and the act of the 8th of May 1822 requires every person claiming title to lands, under any patent, grant, concession or order of survey, dated previous to the 24th of January 1818. to file his claim before the commissioners, appointed in pursuance of the act. All the subsequent acts on the subject observe the same language; and the titles under these concessions have been uniformly confirmed, when the tract did not exceed a league square. Appeal from the Supreme Court of East Florida. The case was argued by Call, for the appellants ; and by Wilde, for appellee. Marshall, Ch. J., delivered the opinion of the court.—This case is in many respects similar to that which has been decided at this term, between same parties, (a) The appellee *filed his petition before the J district court of East Florida, asserting a title of 26,000 acres of land, granted by Don Jose Coppinger, governor of that territory, while under the dominion of his Catholic Majesty. The petition presented by Clarke to the Spanish governor, asks, in consideration of services and as a remuneration for losses sustained, all whic he states, 26,000 acres of land in the following places : twenty-two thereo , in the Hammocks of Cuscoville and Chachala; and the four remaining, at a vacant place called Tallahassa, on the west of the river St. John. On t e 17th of December 1817, the governor passed a decree granting in absolu « property to the said Don George Clarke, the 26,000 acres of land in t e places he solicits in his petition ; and a complete title was made in Decem er (a) 8 Pet. 436. This case was decided at January term 1834, but the opinion was not received by the reporter, until after the publication of the reports of the term. 1835] OF THE UNITED STATES. 169 United States v. Clarke. 1817, 22,000 lying in the Hammocks, known by the names of Cuscoville and Chachala. The petition filed in the district court states, that 20,000 acres, part of this tract, have been surveyed at thé place designated, and sold to John De Centralgo. The other 4000 acres were surveyed in conformity with the decree, and a complete title made by Governor Coppinger on the 4th of May 1818. The court decreed the claim to be valid ; and reciting that 20,000 acres, part of the 22,000, had been on the same day confirmed to Moses E. Levy, on his petition for the same ; proceeded to decree the remaining 4000 acres to the petitioner. The United States appealed from this decree. The only question not already decided, which is made in this case, arises from the fact, that the full title for the 4000 acres of land in controversy, was made after the 24th of January 1818. The petitioner, therefore, cannot avail himself of that grant, and must rest his claim on the concession made the 17th of December 1817. That concession is unconditional ; but the counsel for the United States contends, that it can give no valid title. The argument is understood to have been applied to concessions made absolutely, as well as to those made on condition ; and the court will, therefore, consider it as *applicable to both. A concession on condition, ppg becomes absolute, when the condition is performed. L The validity of concessions is, we think, expressly recognised both in the treaty, and in the several acts of congress. The eight article allows the owners of lands the same time for fulfilling the conditions of their grants, from the date of the treaty, as is allowed in the grant from the date of the instrument ; and the act of the 8th of May 1822, requires every person claiming title to lands under any patent, grant, concession or order of survey, dated previous to the 24th day of January 1818, to file his claim before the commissioners appointed in pursuance of that act. All the subsequent acts on the subject observe the same language ; and the titles held under these concessions have been uniformly confirmed, where the tract did not exceed a league square. The question is not now open for discussion. The decree is confirmed. This cause came on to be heard, on the transcript of the record from the superior court for the eastern district of Florida, and was argued by counsel: On consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said superior court in this cause, con-urming the title of the claimant, be and the same is hereby affirmed in all respects. 115 ♦in SUPREME COURT [Jan’y ♦United States, Appellants, v. Antonio Huertas. Florida land-claims. On the 15th of September 1817, the appellee, on his petition to the governor of East Florida for a grant of land for 15,000 acres, for services performed by him, obtained a decree of the governor for the same; the land was described in the petition particularly, and its location designated; in December 1820, an order of survey was obtained for the lands, and they were surveyed ; the certificate of survey omitted to state that the lands lay at the place described in the petition; the surveys were executed in April 1821, and full titles to the land were granted in the same month. The order of survey, and the full title granted for the land surveyed, could convey nothing not comprehended in the decree of the 15th of September 1817; that decree was for 15,000 acres of land, lying at the place described in the petition. - The district court decided that the claim was valid, and confirmed it, according to the surveys. This court concurs with the district court so far as respects the validity of the claim, but disapproves of that part of it which confirms the title to the lands described in the surveys made in April 1821; these surveys do not appear to conform to the concession, under which alone the petitioner can claim. The decree of the district court was affirmed, so far as it declared the claim of the petitioner was valid, and reversed, so far as it confirmed the title to the land in the surveys ; the cause was remanded to the district court, with directions to cause a survey to be made of the lands contained in the concession, according to its terms, and to decree the same to the claimant. Appeal from, the Superior Court of East Florida, (a) This case was argued by Call, for the United States ; and by Wilde and White, for the appellee. Marshall, Ch. J., delivered the opinion of the court.—On the 15th of September 1817, Antonio Huertas, an inhabitant of East Florida, petitioned the governor of that province for 15,000 acres of land ; on which the following decree was made. “In attention to what this petitioner represents, * . { , and whereas *the services he mentions were well known, I grant to J him, in the name of his majesty, and.of his royal justice, which I administer, the fifteen thousand acres of land which he solicits, in order that he may possess and enjoy them in absolute ownership ; and in testimony, &c.” The land solicited is described in the petition as lying on a stream running west of St. John’s river, and emptying itself into it, at the distance of about twelve miles south of the Lake George, and the survey to begin at about four or five miles west of the river St. John, so that the said stream will divide the tract into two parts. In December 1820, an order was obtained for surveying the land in four tracts ; one of 2500 acres, another of 1500, a third of 600, and the fourth of 10,400 acres. These surveys weie executed in April 1821, and full titles granted in the same month. These several tracts adjoin each other, and appear to lie on the stream required in the petition, and directed by the decree. But the certificate of the sur veyor omits to state that the land lies four or five miles west of the river St. John. , The order of survey, and the full title granted for the land surveye , could convey nothing not comprehended in the decree of the 15th o eP (a) This case was decided at January term 1834, but the opinion of the not received by the reporter until after the publication of the volume cop mg reports of that term. 116 1835] OF THE UNITED STATES. Tarver v. Tarver. tember 1817. That decree was for 15,000 acres of land, lying in the place described in the petition. The district court decided that the claim was valid, and confirmed it to the claimant, “to the extent, and agreeable to the boundaries, as in the grants for the said land, and the plats for the four surveys thereof made, by Don Andrew Burgevin, and dated the 5th day of April 1821, and filed herein, as set forth.” This court concurs with the district court, so far as respects the validity of the claim, but disapproves of that part of it which confirms the title to the lands described in the surveys made in April 1821. Those surveys do not appear to this court to conform to the concession made in 1817, under which alone the petitioner can claim. The decree of the district court is affirmed, so far as it declares the claim of the petitioner to be valid ; and is reversed, so far as it confirms his title to the *lands described in the several plats of surveys referred to in the decree. And the cause is remanded to the district court, with directions to cause a survey to be made of the lands contained in the said concession, according to the terms thereof, and to decree the same to the claimant, so far as he has retained his title thereto. *Benjamin J. Tarver, Appellant, v. Samuel B. Tarver, Char- [*174 lotte Tarver and Patience Gibson. WiU.^Probate. A bill was filed by the heirs-at-law of R. T., stating, that R. T., being then a citizen of Georgia, in the year 1819, made a conditional will, in which he recited, “ being about to take a long journey, and knowing the uncertainty of life, deemed it advisable to make a will.” The will was set out in the bill, and was executed before three witnesses; and devised all his real and personal estate to his brother, B. T., after making a small provision for his sister and her son. R. T. performed the journey, and returned safe; after the decease, in Alabama, of R. T., his brother, B. T., carried the supposed will to the county court, in Dallas county, Alabama, to which the intestate and his brother had removed, and_where they had purchased and held jointly considerable real and personal estate; and upon proof of the handwriting of two of the subscribing witnesses who were dead, the other witness living in the state of Georgia, the will was admitted to probate. The bill alleged the probate to be void, prayed that the will might be cancelled, and the estate distributed according to the laws of Alabama. Held, that this was not a conditional will; the instrument taking effect as a will, is not made to depend upon the event of the return or not of the testator from his journey ; there is, therefore, no color for annulling the will, that it was conditional.1 In determining upon the effect of a conditional will, the question always is, whether e words clearly express a contingency upon h k the instrument is t0 take effect, that is, w et er the arrangement of the testator’s af-’ntended to be merely provisional; or w et er they may be fairly interpreted as indicating the cause or occasion of making the will; o er words, whether it is an absolute condi-ion, or dependent upon any particular motive ®ra mg at the time. In the former class of hX’ * embraced that of Ward’s Goods, 4 an nn 1 when the paper propounded was « t m ?S letter, containing this expression : mention these matters thus particularly, to serve as a memorandum to you, in case it should be the Lord’s will to call me hence, by any fatal event, in the voyage or journey before us;” this instrument was rejected, the testator having returned from his journey, and made a subsequent attested will. So, in Parsons v. Lanoe, 1 Ves. sen. 190, the condition was, “ if I die before my return from my journey to Ireland ;” the decedent did die before his return; and Lord Hardwicke held, that the will was entirely contingent upon the event specified. So, in Sinclair v. Hone, 6 Ves. 608, the contingency expressed in a codicil was, “in case I die before I join my beloved wife,” &c. ; the testator joined his wife, before his death, and though 117 ia SUPREME COURT Tarver v. Tarver. [Jan’y In Armstrong v. Lear, 12 Wheat. 175, it was said by this court, that no other evidence of there being a will can be received by the court, than such as would be sufficient in all other cases where titles are derived under a will; and nothing but the probate, or letters of administration with the will annexed, are legal evidence, in all questions respecting personalty. But the rule there laid down does not apply to this case ; here, the complainant set up the will as the source of his title, and was bound to prove it; which must be done by the probate, which must be set forth in the bill. In this case, the complainant had set forth a copy of the instrument in his bill, alleging it was conditional, and therefore, not valid; the defendant was under no obligation to produce any probate; everything, by the complainant’s o#n showing, was before the court. An original bill will not be sustained, on the allegation that the probate of the will is void; if any error was committed by the court of Dallas county, in admitting the will to probate, it should have been corrected by an appeal to the next term of the supreme court in chancery, or in the district of Washington, to the superior court of that district, according to the law of Alabama.2 Appeal from the District Court for the Southern District of Alabama. The appellees, citizens of the state of Georgia, filed their bill in the district *1751 the United States for the southern *district of Alabama, J against the appellant, Mason Gilliam, and John Gilliam, her son, stating that they and the defendants were the heirs-at-law of Richard Tarver, who died in the year 1827 ; that the deceased, in 1819, made a will, which they asserted to be a conditional will, and which they exhibited; the codicil had been admitted to probate in the ecclesiastical court, it was held by the master of the rolls to be contingent, and to be defeated by a failure of the condition. In Porter’s Goods, 2 L. R., P. D., 22, the testator used the following language : “ Being obliged to leave England, to join my regiment in China, I leave this paper, containing my wishes— should anything unfortunately happen to me whilst abroad, I wish everything that I may be in possession of, at that time, or anything appertaining to me hereafter, to be divided,” &c.; the deceased returned to England from China, and his will was held to be merely conditional, dependent upon his death in China. So, in Robinson’s Goods, 2 L. R., P. D., 16, a master mariner, whilst on a voyage, wrote with his own hand a will, commencing, “ this is the last will and testament of me, that in case anything should happen to me, during the remainder of the voyage from hence to Sicily and back to London, then I give and bequeath,” &c., and it was held, that the dispositions of the will were dependent on the event referred to in the beginning of it, and that it had therefore, only a contingent operation. So, a mariner’s will commencing, “ instructions to be followed if I die at sea, or abroad,” is only conditional. Lindsay v. Lindsay, 2 L. R., P. D., 457. And where a person executed his will in England; then went to India, and whilst there, executed a second will, containing this clause : “ I write this, as my last will and testament, in case of a sudden or accidental death befalling me in Indiahe returned and died in England; and it was held, that the will was contingent on his dying in India, and as that event had not occurred, the instrument was inoperative. Jobson v. Ross, 42 L. T., P., 459. So also, where one, in contemplation of a journey, thus began an informal testamentary paper: “ my wish, desire and intention now is, that if I should not return (which I will, no preventing Providence), what I own shall be divided in followsit was held, by the supreme court of Pennsylvania, Gibson, Ch. J., that upon his return and subsequent death, the instrument ought not to be admitted to probate. Instances of cases falling within the other class, where the words may be interpreted, as indicating the cause or occasion of making the will, and not applying to the disposition of the property, may be found in those of Barton«,. Collingwood, 3 Hagg. 176; Forbes v. Gordon, 3 Phillim. 625 ; Strauss v. Schmidt, 3 Moore P. C. 223; Mayd’s Goods, 6 L. R., P. D-, 17; Ex parte Lindsay, 2 Bradf. 204; Thompson v. Connor, 3 Ibid. 366; French v. French, 14 W. Va. 458. A conditional will must be admitted to probate, unless the intention be very clear, that it is to be inoperative, in the event which has happened, Ex parte Lindsay, and Thompson v. Connor, ut supra ; Sinclair v. Hone, 6 Ves. 607. In such case, the probate is not conclusive. See also, on the subject of conditional wills, Morrell v. Dickey, 1 Johns. Ch. 153; Hugo’s Goods, 2 L. R., P. D., 73; Graham’s Goods, Ibid. 385. 2 See Ellis v. Davis, 109 U. S. 485, 503. 118 1835] OF THE UNITED STATES. 175 Tarver v. Tarver. which they also stated, was not considered as a will by Richard Tarver, at the time of his death. That the principal devisee in that will, Benjamin Tarver, one of the defendants, had proved the will in Dallas county, by proving the handwriting of two of the subscribing witnesses, who were dead ; the other being out of the state ; and that the probate thereof was void ; that the said Benjamin had taken possession of all the deceased’s lands and effects ; and they prayed an account of the real and personal estate of the testator, and the time at which it was acquired ; and “ that the will may be cancelled, and the property of the deceased be distributed according to the laws of Alabama.” The copy of the will and of the probate annexed to the will, were as follows. Will. “In the name of God, Amen ! Being about to travel a considerable distance, and knowing the uncertainty of life, think it advisable to make some disposition of my estate, do make this my last will and testament. It is my will, that my brother, Benjamin J. Tarver, should have all my estate both real and personal, except a competent maintenance for my sister Gilliam and her son John Gilliam, and further, he should give the said John Gilliam a liberal education, and then carry him though the study of law or physic, as he may think best ; and at the age of twenty-one, give him, the said John Gilliam, twenty-five hundred dollars in money or property. Given under my hand, this 3d May 1819. Richard Tarver, [l. s.]” Test :—W. Lyman, William Booker, William H. Carter. Witnesses : D. C. Patterson, William F. Hay. Probate of will. “Orphans’ court, November term 1827. State of Alabama, Dallas county. Personally appeared before me, James Suffold, judge of the county and orphans’ court, in the county aforesaid, Joseph Scott, who being duly sworn, saith, that he knows the handwriting of William Booker *and David C. Patterson, who signed their names as witnesses to the within will, that he has seen them write ; that he believes the signatures appearing thereto was their, and each of their, proper acts and signatures ; that to his certain knowledge, both Booker and David C. Patterson are now dead. Joseph Scott. “Sworn to, and subscribed before me, this 12th day of November 1827. James Suffold. “ 13th November, H. Vandyke, Clerk, recorded.” The answers of the defendant in the district court, declared, that Richard arver made his last will and testament, as stated in the complainant’s bill, ut denied that there was a condition annexed thereto. The defendant stated, that the testator and himself lived together and employed their capital together, and for their joint benefit, with an express agreement that t e survivor should have the whole, which was the joint property of both, t the time the testator executed the will referred to in the bill of the com-p amant, he executed a will substantially similar in all respects to that executed by Richard Tarver. The answers asserted, that the probate of the W1 was in full form, and was regular, and that there was no sufficient CaUThS °wn i-n ^Or exerc^se equitable powers by the court. e district court gave a decree in favor of the complainants, on the 119 1^6 SUPREME COURT [Jan’y Tarver v. Tarver. ground, that the will of Richard Tarver had not been admitted to probate by the proper orphans’ court; and of course, that it did not appear to the court, that he made a will. And also, that this proceeding was instituted to set aside the will of Richard Tarver, and no title which the respondent might have to the property of Richard Tarver, could be set up in the case, except such as might be derived from the will. The defendants appealed to this court. The case was argued by Key, for the appellants ; and by Gamble and Wilde, for the appellees. Thompson, Justice, delivered the opinion of the court.—This case comes up on appeal from the district court of the United States for the southern * _ district of Alabama. *The pleadings are very inartificially drawn-, J and do not, probably, present the case in such a manner as to enable the court to dispose of all the questions intended to be brought under consideration. The bill sets out that Richard Tarver, late of the county of Dallas, and state of Alabama, departed this life, in that county, in the year 1827, leaving, at the time of his death, a large real and personal estate, and leaving three sisters and the defendant, Benjamin Tarver, his sole heirs-at-law. That the said Richard Tarver, in the year 1819, being a citizen of Georgia, and possessed of a large estate in lands, made a conditional will, in which he recites, that being about to take a long journey, and knowing the uncertainty of life, he deemed it advisable to make a will; and thereby declared, that he left all his estate, real and personal, to his brother, Benjamin Tarver. And making some small provision for his sister Mason Gilliam, and her son John, all which will more fully appear by a copy of the supposed will attached to the bill, and which is prayed to be considered as a part thereof. The bill alleges, that the said Richard Tarver performed the journey, and returned safe. Some statements are then made, with respect to the property of the deceased ; and the bill alleges, that he and the defendant, Benjamin J. Tarver, lived together, and employed their capital, of every description, jointly. That Benjamin, on the decease of his brother, took possession of all his estate. That the said supposed will purports to be attested by sundry persons as witnesses ; the survivor of whom resides in the state of Georgia. That the said Benjamin carried the supposed will before the county court of Dallas county ; and upon the proof of the handwriting of two of the subscribing witnessess, who are dead, the other still living in the state of Georgia, the will was admitted to probate, and the bill alleges that such probate is void. The bill then prays, that the will may be cancelled, and the estate distributed according to the laws of Alabama ; and that the defendant may set forth the full amount of the property of the said Richard, not only what he had at the time of his death, but what he had at the date of the supposed will, describing the property at each of these times particularly. An amended bill was afterwards filed, stating that the defendant was attempting to set up said will; and charging that it was conditiona in *7R I Option ; *and that the condition on which it was to take e ec J has not happened. Several answers were filed, in consequence of exceptions ta en an allowed by the court. These answers contain much matter not responsiv 120 1835] OF THS UNITED STATES. K8 Tarver v. Tarver. to the bill, and which was not properly before the court. But it is denied, that there was any condition annexed to the will, other than is shown by the will itself. The defendant admits, that he procured the will to be proved and admitted to record in the orphans’ court of Dallas county ; and alleges, that the probate of said will remains in full force, not revoked, nor in any manner set aside ; and which he is informed and believes, is in all respects legal; and prays the benefit of the answers as a demurrer to the bill. The court decreed a distribution of the estate among the legal representatives of the deceased ; and the cause comes here for review. The questions put in issue by the pleadings, are : 1. Whether Richard Tarver, at his decease, left the will in questions as a valid and operative will ? 2. Whether such will was duly admitted to record in Dallas county ? It is a little remarkable, that the final decree in the cause does not touch either of these questions put in issue by the pleadings ; but proceeds at once, upon the report of the master, to make distribution of the estate among the heirs-at-law of the deceased. The judge, in his opinion, does notice these questions ; but does not decide whether the will was conditional, and had become inoperative, by reason that the contingency on which it was to take effect had not happened ; but puts his decision upon the ground, that the defendant was bound to establish the will; and that this could be done in no other way than by the production of a valid probate. He observes, that this proceeding is instituted to set aside the will of Richard Tarver, and no title which the respondent may have to the property of his deceased brother, can be set up in this suit, except such as may be derived from the will. That if the complainants had even admitted the existence of the will of Richard Tarver, yet it would be indispensable to the title set up by the respondents, through that will, to show that it had been duly admitted to probate, by the proper orphans’ court. The judge then goes into an examination, whether the will *had been duly admitted to probate, and com-ing to the conclusion that it had not, he declares, that it does not, L therefore, appear to this court that Richard Tarver made any will. He seems to rest his opinion upon the decision of this court, in the case of Armstrong v. Lear, 12 Wheat. 175, where it is said, that we cannot receive any other evidence of there being a will, than such as would be sufficient, in all other cases where titles are derived under a will; and nothing but the probate, or letters of administration with the will annexed, are legal evidence of the will, in all questions respecting personalty. But the rule as there laid down, does not apply to this case. There, the complainant set up the will as the source of his title, and was bound to prove it; which must be done, say the court, by the probate, which must be set forth in the bill. But in the present case, the inquiry was, whether the instrument in question was a valid will or not; and the complainant had set out a copy of that instrument, for the purpose of showing that it was not a valid subsisting will, because it appeared upon its face to be conditional, and then to show that such condition or contingency had never happened. The defendant was not the actor, seeking to enforce any right under the will; and he could be under no obligation to produce any probate. The complainant having set out the W1 , everything, by his own showing, was before the court, that was neces-®ary to present the question which was to be decided. There was no evi-ence impeaching this will, except what appears on the face of it, and is 121 IVO SUPREME COURT [Jan’y Tarver v. Tarver. rested entirely on the introductory part of it. It begins in this manner: “ Being about to travel a considerable distance, and knowing the uncertainty of life, think it advisable to make some disposition of my estate, do make this my last will and testament, &c.” And it is contended, that the condition upon which the instrument was to take effect as a will, was his dying on the journey, and not returning home again. But such is a very strained construction of the instrument; and by no means warranted. It is no condition, but only assigning the reason why he made his will at that time; but the instrument’s taking effect as a will, is not made at all to depend upon the event of his return or not from his journey. There is no. color, therefore, for annulling this will, on the ground that it was conditional. * , *And the bill cannot be sustained, on the 'allegation that the pro- -* bate is void. An original bill will not lie for this purpose. If any error was committed in admitting the will to probate, it should have been corrected by appeal. This is provided for by the law of Alabama, which makes the county court in each county an orphans’ court for taking the probate of wills, &c., and declares, that if any person shall be aggrieved by a definitive sentence or judgment, or final decree of the said orphans’ court, he may appeal therefrom to the next term of the supreme court in chancery, or in the district of Washington, to the superior court of that district. The law also provides, that any person interested in such will, may, within five years from the time or the first probate thereof, file a bill in chancery to contest the validity of the same ; and the court of chancery may, thereupon, direct an issue or issues in fact, to be tried by a jury, as in other cases. But that after the expiration of five years, the original probate of any will shall be conclusive and binding upon all parties concerned; with the usual savings to infants, femes covert, &c. Toulmin’s Dig. 887. We think nothing has been shown, to impeach or invalidate this will; and that the bill cannot be sustained, for the purpose of avoiding the probate. That should have been done, if at all, by an appeal, according to the provisions of the law of Alabama. We do not enter at all into an inquiry as to the operation of this will, with respect to the property that will pass by it, nor touching the right by survivorship, as set up by the defendant in the court below. These questions are not properly before us, upon the pleadings in the cause, nor presented in such a manner as to enable us satisfactorily to dispose of those questions. We think, therefore, that the decree of the court below must be reversed, and the bill dismissed, without prejudice ; so as not to preclude the appellees from asserting their right to any part of the property, if any such there be, which does not pass under the will of Richard Tarver. • The decree of the district court is accordingly reversed, and the bill dismissed, without prejudice. This cause came on to be heard, on the transcript of the record fro® * , the district court of the United States for the *southern district of Alabama, and was argued by counsel : On consideration whereof, it is ordered and decreed by this court, that the decree of the said district court in this cause be and the same is hereby reversed and annulled, an that this cause be and the same is hereby remanded to the said district court, with directions to that court to dismiss the bill of the complainants, without prejudice. 122 1835] OF , THE UNITED STATES. *182 ^Seaman Field and others, Plaintiffs in error, v. United States. Priority of the Un ited States. L. E. Brown, a debtor to the United States on bond, became insolvent, and under the insolvent laws of Louisiana, made an assignment of his property for the benefit of his creditors; and syndics were appointed, who took possession of his estate, real and personal, and sold the same, part for cash, and part on credit of one, two and three years. The United States instituted suits on the bonds, against L. E. B., and obtained judgments in the district court of the United States for the district of Louisiana; the effects of the insolvent were administered by the syndics, according to the laws of Louisiana; the United States took no part in these proceedings, but a notice of the debts due by B. to the United States, was given to the syndics, before any distribution was made of any of the proceeds of the estate in their hands; and a suit for the amount of the debts of B. to the United States, under the law giving a right to priority of payment, was commenced against them, before the tableau of distribution of the first instalment of the insolvent’s estate, was confirmed by the parish court of New Orleans. The whole proceeds of the estate exceeded $4Q,000; the mortgages were about $27,000; and when all the notes taken by the syndics were paid, there would be sufficient to discharge these mortgages, and all the debts due to the United States; a large amount of the proceeds were not to be received, until after the judgments were obtained in favor of the United States; one moiety of the amount of sales being payable after the suit against the syndics was commenced, and the other, after the judgment against them was rendered. The court held, that the syndics were not liable to the United States for the debts due to them, unless funds had actually come into their hands; the notes for the sales may all be good; yet as one moiety of them was not paid, at the time of the judgment of the United States against them, it does not judicially appear, that, even at that time, they had funds on which the United States were entitled to judgment; if the remaining moiety of the notes has since been paid, the United States will then have a legal claim thereon for their debts. The United States were not parties to the proceedings in the parish court, nor were they bound to appear and become parties therein; the local laws of the state could and did not bind them in their rights; they could not create a priority in favor of other creditors, in cases of insolvency, which should supersede that of the United States. As the cause was not tried by a jury, the exception to the admission of evidence was not properly the subject of a bill of exceptions. The priority of the United States attached, by the laws of the United States, in virtue of the assignment and notice to the syndics; and it was the duty of the syndics, to have made known these debts, in their tableau of distribution, as having had priority. The mortgages upon particular estates sold, must be first paid out of those estates; but if there be any deficiency in the proceeds of any particular estate, to pay the mortgages *thereon, the mortgagees thereof r cannot come in upon the funds and proceeds of the sales of the other estates, except as L general creditors. The bill of exceptions stated, that during the trial of the cause in the district court, the counsel for the marshal stated, that he had made a seizure or given notice that he seized in the hands of the defendants, the syndics, any funds in their hands, to a sufficient amount to satisfy the judgment obtained in the case of the United States v. John Brown, sen., and Lewis E. Brown. This testimony was objected to, as being contrary to the statement of facts in the ease, in which it was stated, that a return of nulla bona had been made by the marshal; and because the act was done in a case to which the defendants were not parties, and because the best evidence was the notice or true and proved copies of it; the return of the marshal in the case of the United States v. John Brown, sen., and Lewis E. Brown, was also offered, and was objected to. The evidence was properly admitted, as notice to the syndics of the debts due to the United States.1 Error to the District Court for the Eastern District of Louisiana. In the district court, on the 30th of March 1831, the attorney of the district filed a petition of complaint, on behalf of the United States, against Sea-man Field, Samuel J. Peters and Thomas Tobey, residing in the city of 1 See United States v. Clark, 1 Paine 629; United States v. Duncan, 4 McLean 607. 123 183 SUPREME COURT [jan’y Field v. United States. New Orleans, syndics of L. E. Brown ; stating that one Lewis E. Brown, of the city of New Orleans, on the 27th of October 1829, executed a certain bond to the United States, in the sum of $1366.20 ; and suit having been brought on the said bond, judgment in favor of the United States was obtained on it, on the 22d of December 1830, for the amount thereof, to be satisfied with the payment of $632.10, with interest, &c. That the said Lewis E. Brown failed and became insolvent, and made a voluntary assignment of all his property to his creditors, on or about the 30th of April 1830, under the laws of Louisiana. That Seaman Field, Samuel J. Peters and Thomas Tobey were appointed syndics, or assignees of his creditors; and in that capacity, had received and taken possession of all the property, real and personal, of the insolvent, and had sold and disposed of the same to an amount far exceeding the debts due by him to the United States. That at the time of their' receiving and taking possession of the said property as aforesaid, they well knew of the existence of the debts due to the United States by Lewis E. Brown ; and that an amicable demand had been * made of them by the United States, for the amourit of the said J judgment and of the costs, but they had neglected or refused to pay the same, or any part thereof. The petition prayed a citation to the defendants, to answer the same ; and that after due proceeding, they be condemned, jointly and severally, to pay the amount due to the United States. Citations issued to the several defendants, who appeared, respectively, and on the 17th of May 1831, filed separate answers to the petition. The answers admitted, that the respondents had, in the capacity of syndics, taken possession of the property of L. E. Brown, by him assigned for the benefit of, and distribution among, his creditors; and that they acted in the said capacity, in virtue of certain judicial proceedings in the parish court for the parish and city of New Orleans, to which proceedings the answers referred ; and an exemplification of which proceedings would in due time be exhibited, and which were to be considered as part of the said answer. That in virtue of said proceedings, under the local laws of Louisiana, the said property, so assigned, was sold by said syndics on a credit of one, two and three years ; that out of the proceeds of sale, when the same shall be received, were to be paid certain privileged and mortgaged creditors, who were preferred to the United States. The answers further stated, that the respondents had no funds in their hands belonging to the estate of L. E. Brown ; the property having been so sold, on a credit, for promissory notes not yet due or paid. They denied all other obligations in the petition, or that the respondents, as syndics, had done anything to render them respoD' sible, under the laws of the United States, or liable in any manner to the claim stated in the petition of the United States, and prayed a trial by juty The answers further stated, that the said syndics sold the household furm ture and other movables of the said L. E. Brown, at a credit of six months» out of the proceeds of which, they had paid law-charges, house-rent an other privileged charges upon the estate, preferred to the United States, of which a particular account was annexed to one of the separate answer filed in the case. *1851 8ame $0^ March 1831, the district-attorney filed *ap® J tion in similar terms, stating that on a bond given by the said K 124 1835] OF THE UNITED STATES. 185 Field v. United States. Brown to the United States, for 81394, on the 3d of December 1829, a suit had been brought on the 3d of December 1830, and on the 22d of the same month, a judgment had been obtained for the amount, to be satisfied by the payment of 8697, with interest, &c., with the same allegations of responsibilities on the part of the defendants. Another petition was filed at the same time, stating that on a bond given by the said L. E. Brown, on the 28th of October 1829, for the sum of 81264, a judgment had been obtained on the 22d of December 1830, for the said sum, to be satisfied by the payment of $632, with interest, &c., and also stating a claim on the defendants. Another petition was filed at the same time, stating that on the 22d of December 1830, another judgment, on a bond given to the United States by L. E. Brown, was obtained for the sum of 81060.91, to be satisfied by the payment of 8530.45, with interest, &c. ; and on the same day, another petition was filed, stating that another judgment had been obtained against L. E. Brown, on the 22d of December 1830, on a bond given by him, for the sum of 81396, to be satisfied by the payment of 8698, with interest, &c. ; both petitions alleging the liabilities of the defendants. Other petitions were filed upon other judgments, on bonds of the same nature, and for different amounts. The whole amount of judgments stated in these several petitions, was 811,264.10; and the real debt, claimed to be due to the United States on the same, amounted to 85647.55, with interest, &c. On the 2d of June 1831, in pursuance of an order of the district judge, a detailed statement of all the property received by the syndics or assignees of Lewis E. Brown, and the sales and dispositions they had made thereof, was filed in court. The sales of the real estate and slaves were made, the former at one, two and three years’, and the latter at twelve months’ credit ; for which notes were given, which would become due at different periods, amounting to 839,000.63. The tableau of distribution of .the first instalment of the estate, established by the parish court, in relation to the estate of Lewis E. Brown, referred to in the answers, dated on the r out of which all the creditors are to be paid, the United States haying priority. If it should be thought, that I might have deduced this doctrine with less prolixity of expression, my answer is, that I have been thus tedious on t is part of the case, for two reasons : first, because I have never seen any judioia discussion and decision on the main points involved in this case ; and secon. y, cases of this kind are likely hereafter to arise, and on that account it is 132 1835] OF THE UNITED STATES. Field v. United States. 197 proper that my construction of the 65th section of the collection act should he known, and the reasons for it. “ The defendants’ counsel seemed to attach much importance to the fact, that the district-attorney has in his possession good notes, arising from the sale of John Brown’s estate (the principal in the custom-house bonds), more than sufficient to pay the debt due to the United States. The answers to this are : 1. That because the government may have another recourse for payment, it is no reason why she should relinquish any security she may have for her debt : and 2. If, through the diligence and vigilance of the district-attorney, acting in his private capacity, as the attorney of the syndics of John Brown, he has succeeded in wresting from a fraudulent ' grasp the only means by which these defendants may be ultimately reimbursed the amount of this judgment against them, they *surely have no right to complain ; so that, under present circumstances, the question is U1^8 virtually one of costs ; for as to their liability to pay the debt sued for, little or no doubt can exist ; and so deeply impressed with that idea was the defendants’ counsel of record, that he labored to convince the court, that although costs usually follow a judgment, yet in this case they might not be taxed against his clients. His complaint is, that the attorney of the United States has unnecessarily multiplied costs, by bringing nine suits, when he ought to have brought but one ; and on that point, he relies upon the third section of the act of congress of the 22d of July 1813, which prohibits attorneys from unnecessarily and vexatiously increasing costs, on pain of being made liable themselves for any excess. It is true, if the districtattorney could have foreseen the defence which has been set up in these cases, it would have been his duty to have included all in one action ; but these suits were brought on separate judgments, each of which might have admitted of a distinct defence. To one, want of proper service of process on the original debtors, might have been pleaded ; to another, that the judgment was erroneously entered on the record ; to a third, that, under the rules of court, it had be prematurely signed, and therefore, no judgment ; to a fourth, mil tiel record ; and to the rest, other pleas, such as might have suggested themselves to the minds of ingenious counsel, might have been put in. If it had been the. wish of the defendants’ counsel to diminish the costs, he ought to have applied to the court to consolidate the suits, before e added to the costs so much himself, by filing twenty-seven answers instead of one, and even when the suits were consolidated, the record shows t at it was done on motion of the district-attorney ; no doubt, for the sake o more conveniently trying together a number of cases in which the issue in a was the same, and thè language of the answers the same, verbatim et 1 eratim, with the exception of the names of the defendants. n the whole, I can perceive no reason why judgment should not be given against the defendants for both debt and costs, and I shall accordingly direct judgment to be so entered.” The defendants prosecuted a writ of error to this court. n case was argued by Key, for the plaintiffs in error ; and by * Attorney-General, for the United States. [*1M delivered the opinion of the court.—This is a writ erior rom a judgment of the district court of the United States for the 133 SUPREME COURT Field v. United States. [Jan’y district of Louisiana, rendered on the petition of the United States against Seaman Field and others, the plaintiffs in error, as syndics or assignees of Lewis E. Brown, an insolvent debtor. The petition states, that Lewis E. Brown, being indebted to the United States on a certain bond, on which judgment had been obtained for a sum stated in the petition, became insolvent, on or about the 20th of April 1830, and made a voluntary assignment of all his property to his creditors, under the laws of Louisiana; and that the original defendants were appointed syndics or assignees of the creditors ; and had received and taken possession of all the property of Brown, and sold and disposed of the same to an amount far exceeding the debt due to the United States ; that the defendants, at the time of receiving and taking possession of the property aforesaid, well knew of the existence of the debt due to the United States ; and though the same had been demanded of them, refused to pay it. Several other suits, of a similar nature, were brought for other debts, upon bonds due to the United States by Lewis E. Brown, which were afterwards consolidated with the present suit. Answers were duly put in by the defendants, which admitted the assignment, but denied that the syndics then had funds applicable to the debt. The cause was finally submitted to the court upon a statement of facts (which is in the case) prepared by the parties ; the trial by jury being waived by their consent. From this statement of facts, it appears, that Lewis E. Brown, at the time of his failure and insolvency, on the 26th of May 1830, was surety for one John Brown, on certain custom-house bonds, for duties due at various times between the 26th of August 1830, and the 9th of January 1831 ; upon all of which bonds judgments were rendered in favor of the United States, before the commencement of the present suit, which was in March 1831. On these judgments, writs of fieri facias issued against all the parties, which werere-*9001 burned by the *marshal nulla bona; and none of them have as yet been paid. John Brown failed and became insolvent; and applied for the benefit of the insolvent act of Louisiana, on the 10th of June 1830. The defendants made sale of Lewis E. Brown’s property, on a credit of one, two and three years ; and received promissory notes therefor. A part of these notes were paid before the 3d of December 1831 ; and the residue was secured by mortgage on the property, and amounted to $24,898.60, one-half of which fell due on the 31st of July 1832, and the other half on the 31st of July 1833. The United States never, in any manner, appeared in the proceedings had in the parish court, under the laws of Louisiana, in relation to the insolvency of Lewis E. Brown. At the time of his failure, there were certain mortgages and privileged debts on his estate. A part of these, as well as some other debts, had been paid by the assignees, and were stated in the tableau of distribution ; which was rendered to and confirmed by the parish court, on the 15th of December 1831, upon due proceedings had thereon. On the 30th of December 1830, the marshal, acting under the writs of fieri facias on several of the judgments against Lewis E. Brown, seized the funds in the possession of the defendants as syndics, and gave notice to them of the seizure thereof to satisfy these judgments respective y. At the hearing of the cause, the court admitted certain evidence to prove that the marshal made a seizure, and gave notice to the defendants that e had seized any funds in their hands to Satisfy the judgment on which t e 134 1835] OF THE UNITED STATES. 20C Field v. United States present petition was founded ; and an exception, by a bill of exceptions, was taken to such admission. And upon the final hearing, in February 1833, the court gave judgment for the United States, for the amount of all the bonds and the interest due thereon, and costs. The claim of the United States to the payment of the debts due to them out of the funds in the hands of the syndics, is founded upon the priority given them by the 65th section of the duty collection act of 1799, ch. 128 ; which, in cases of a general insolvency and assignment, like the present, provides that the debts of the United States shall be first satisfied out of the funds in the hands of the assignees. The first objection now taken by the plaintiffs in error, is, *that r*?n1 the order of the parish court, confirming the tableau of distribution, L was the judgment of a court of competent jurisdiction, in favor of each creditor whose debt was therein stated ; and that the syndics were obliged to pay the proceeds of the sale to such creditors ; and the United States not being named as creditors therein, can have no right to the fund against the other creditors. If, at the time of the confirmation of this tableau of distribution, no debts due to the United States had been known to the syndics, and they had, in ignorance thereof, made a distribution of the whole funds among the other creditors, that might have raised a very different question. But in point of fact, it has not been denied, that the syndics, long before that period, had notice of the existence of the debts due to the United States; and the present suit was commenced against them in the preceding March. The United States were, it is true, not parties to the proceedings in the parish court, nor were they bound to appear and become parties therein. The local laws of the state could not, and did not, bind them in their rights. They could not create a priority in favor of other creditors, in cases of insolvency, which should supersede that of the United States. The priority of the latter attached by the laws of the United States, in virtue of the assignment and notice to the syndics of their debts. And it was the duty of the syndics to have made known those debts in their tableau of distribution as having such priority. There is no doubt, that the mortgages upon particular estates sold, must be first paid out of the proceeds of the sales of those estates. But if there be any deficiency of the proceeds of any particular estate, to pay the mortgages thereon, the mortgagees thereof cannot come in upon the funds and proceeds of the sales of the other estates, except as general creditors. The district judge was perfectly correct in the views taken by him in his opinion on this subject. It appears from the papers in the record, that the whole amount of the proceeds of all the sales exceeds $40,000, and that the mortgages are about $27,000 ; and making allowance for other privileged claims, if any, there will remain a balance in the hands of the syndics (when all the notes for the sales are paid) more than sufficient to pay all the debts due to the United States. But the difficulty is, that the notes for a large amount of their proceeds, viz., $24,898.60, *did not become due until July 1832, and July 1833 (a moiety in each year) ; the first being after the present suit L was commenced, and the latter, after the present judgment was rendered, ow, the syndics are certainly not liable to the United States for the debts ue to them, unless funds have actually come to their hands. The notes for 135 202 SUPREME COURT [Jan’y King v. Thompson. the sales may all be good, but as one moiety thereof was not paid at the time of the judgment, it does not judicially appear, that, even at that time, they had funds out of which the United States were entitled to judgments. If the remaining moiety of the notes has been since paid, the United States will then have a legal claim thereon for their debts. For this reason, the judgment of the district court must be reversed ; and the cause sent back for further proceedings. In regard to the bill of exceptions, as the cause was, by consent, not tried by a jury, the exception to the admission of evidence was not properly the subject of a bill of exceptions. But if the district court improperly admitted the evidence, the only effect would be, that this court would reject that evidence, and proceed to decide the cause, as if it were not in the record. It would not, however, of itself, constitute any ground for a reversal of the judgment. But we are of opinion, that the evidence was properly admissible as proof positive to the syndics of the debts due to the United States ; and if the fact was material, to enable the court to render suitable judgment on the statement of the parties, it is not easy to perceive, why it should have been objectionable. Without this evidence, there seems to be enough in the record, to show that the syndics had full notice of the debts due to the United States. They do not even set up in their answers, any want of notice, as a defence. But in the present state of the case, this matter is the less important, because they now have the most ample notice of the debts due to the United States ; and these will, at all events, be payable out of the residue of the sales, when it is received. With the question of costs, this court has nothing to do; and as the judgment is reversed for another cause, it becomes immaterial to be considered. This cause came on to be heard, on the transcript of the record * _ *from the district court of the United States for the eastern district J of Louisiana, and was argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said district court in this cause be and the same is hereby reversed, and the cause is remanded to the said district court for further proceedings to be had therein, according to law and justice, and in conformity to the opinion of this court, (a) *204] *George King’s Heirs, Raphael Semmes and others, Appellants, v. Josiah Thompson and Elizabeth his wife. Fraudulent conveyances.—Equitable lien. A few days after the marriage of J. Thompson with the daughter of George King, in 181 , e latter, residing in Georgetown, in the district of Columbia, and having a large active capi a, and a large real estate there, proposed to grant to J. T. a house and lot in Georgetown, then ™uc out of repair, and untenantable, provided he would repair the same, so as to make it a com or -able residence ; and saying, that he intended the property for his daughter ; this proposition wa accepted by J. T., who repaired the property, expending upwards of $4000 on the same, he, with his wife, resided on it about four years. Before his removal from it, a correspon en (a) This case was decided on the 21st of February 1834. 136 1835] OF THE UNITED STATES. 2o4 King v. Thompson. on the subject of the conveyance of the property to J. T., or to J. T. and his wife, took place, which ended in propositions to convey the property, on certain terms, beneficial to J. T. and wife, in pursuance of, and intended to be in execution of, the original offer of G. K. to J. T., made immediately after the marriage ; no conveyance was made. J. T. and wife removed from Georgetown, and G. K. collected and paid to J. T. the rents of the property, for sometime after their removal; G. K. died in 1820, insolvent; his debts amounted to $36,000, and his whole estate, both real and personal, when sold, did not pay thirty-nine per cent, of his debts ; the property claimed by J. T. and wife, in this case, was sold for $1600, by a trustee, under a decree in chancery, obtained by the creditors of G, K„ but the sale had not been ratified. From the occupancy of the property, and the amount of money expended in improving it, it was certain, that there was an understanding G. K. and J. T., that the property, in some manner, should be possessed and enjoyed by J. T. and his wife; the evidence, however, showed, that G. K. did not intend to vest it absolutely in J. T., but that the value of it, before the improvements, should, in some form, be secured to the wife of J. T. Whatever uncertainty may have existed as to the terms of the contract, J. T. acted under it, in taking possession of the property, and expending a large sum of money on it. J. T. and wife filed a bill against the heirs of G. K., and the trustee of the creditors of G. K., claiming a conveyance of the property, and for general relief. In no point of view, could such a contract as that in this ease be considered voluntary ; there was not only a good consideration, that of natural affection, but a valuable one; to constitute a valuable consideration, it is not necessary that money should be paid; but if, as in this case, it be expended on the faith of the contract, it constitutes a valuable consideration In testing the validity of the transaction of 1812, the subsequent fall of property in Georgetown, or the failure of King, cannot be taken into view; the inquiry must be limited to his circumstances at that time. It is not shown, that the persons for whom he was bound, as indorser, where then *unable to pay the respective sums for which he was responsible; r^os and it would be improper to consider those sums as debts due by King ; he was responsible for their payment, on certain contingencies; but the fact that his credit remained unimpaired, for several years after the contract, shows, that neither his credit, nor the credit of those for whom he was indorser, was considered doubtful. In this state of facts, King was in a condition to dispose of the house and lot, not worth more than $2500, on the terms stated. The terms of the contract not being sufficiently established by the evidence, the court decreed, that the property should be sold, and the proceeds of the sale should be first applied to the payment of the money expended by Thompson in making improvements on the property ; and the balance, if any, paid over for the benefit of the creditors of George King—Thompson not to be charged with rent of the premises, while he occupied them, nor with the rent collected and paid to him, after he removed. Thompson v. King, 3 Or. C. C. 662, reversed. Appeal from the Circuit Court of the District of Columbia, and county of Washington. The appellees, Josiah Thompson and wife, on the 14th of June 1826, filed a bill on the equity side of the circuit court, alleging that George King, in October 1812, a few days after the marriage'of Josiah Thompson with Elizabeth, the daughter of the said George King, proposed to grant to the said Thompson and wife, a house and lot of ground in Georgetown, if Thompson would repair and make it comfortable for a residence ; at the same time, informing Thompson, he intended the property for his daughter Betsey. The bill alleged, that this offer was accepted by Ihompson, and that he made repairs to a large amount, and that he occupied the property, after it was repaired, until 1816, when he removed to the western country. At the time of this gift, the bill alleged, that George King was in good credit, and in prosperous circumstances ; it being believed, e had a large capital, and that he owned a valuable real estate, which, after the payment .of his debts, not large in amount, would enable him to provide handsomely for his children. n 1816, before Josiah Thompson removed from Georgetown, a cor- 137 205 SUPREME COURT [Jan’y King v. Thompson. respondence took place between him and George King, which was annexed to the hill; and which was referred to as evidence of the contract, under which Josiah Thompson took possession of and improved the propertv. * *The first letter was from George King to the complainant, Josiah J Thompson, and was dated— “Georgetown, 17th of April 1816. “ Mr. Josiah Thompson : “ Sir :—I am informed that you are in suspense in regard to the property you now live on, and I think it a duty incumbent on me to let you know the terms I mean to let my daughter Betsey have it. I hold myself ready, and hold myself bound, to give a deed to a trustee, who shall hold it in trust for her and yourself during your lives; and then, after the death of you both, to revert to her lawful heirs, her children, if any she has, if not to my heirs ; but you may say I wrong you in this way, by not letting you know before now, that I did not mean to deed to you, instead of keeping it for her, and on that account you have put more improvements than you would have done, had you have been informed before. You may now sell the property, and all you can get over three thousand dollars for it, you can do as you like with ; but that sum must be kept sacred for the use of your wife, in the hands of trustees, for her support, in case she might ever need it, the use of which, as the income, will be at your disposal during your own and her life, and then to her heirs as before ; and other terms than this it will be useless for you to look for, without you find two just fathers that shall say I ought to do otherways ; and, after hearing their reasons on the subject, perhaps, I may alter my opinion. Yours, with due esteem, George King.” In reply to this letter, after remonstrating against making the conveyance of the property in trust, the complainant, under date of the 26th of April 1816, made three proposals to George King. “ 1. Let the property be valued as to its worth at the time it was put into my possession, and I will pay the amount over to you, which you may then hold for my wife, or give it to whom you please ; for, when I married her, I was not influenced by any pecuniary motive, and as she has never *90'71 Siven *me reason to regret my choice, I surely will not allow a con- -■ sideration like the present to create the smallest uneasiness. 2. Let the improvements be estimated ; pay me the amount, and then I will relinquish all claim, and you will be at liberty to dispose of it as you may deem proper. 3. Execute a deed to your daughter at once in fee-simple, and I will, for her benefit and advantage, cheerfully give in all that I have expended ; this will at once be making her the guardian of her own property, and, if it should please God to call me first, will be to her a support. Thus, my dear sir, you will find, that I am not disposed to dispute about the original value of the property ; for, though I consider it as certainly the property of my wife from the delivery of it into my possession, as any subsequent act could make it, and from the manner I was allowed ana encouraged to go on with the improvements ; yet I am willing at any moment to bind myself to abide by either of the above proposals.” To these propositions, George King, on the 29th of April 1816,.replie • ** I make no hesitation in complying with your first proposal, for it is just 138 1835] OF THE UNITED STATES. 20? King v. Thompson. what I proposed in my first to you, and I will do it another way, giving you your choice, viz., I will deed the dwelling-house and all above it to you, and about twenty feet below it; and then all below that I will deed to Betsey, provided she will never deed it, nor otherways dispose of it, during her life, only by will, which she shall always be at liberty to make, when and how she pleases. Geo. King.” The bill proceeded to state, that the complainant, Josiah Thompson, was satisfied with the proposition contained in the letter of the 29th of April 1816, and that at the removal of the complainant from Georgetown, he rented the property, and constituted George King his agent to collect the rents of the same, which duties he continued to perform, without advancing at any time a claim to the same. On the death of George King, the legal title to the property descended to his heirs, no conveyance having been made of it *to the complainants ; and the bill prayed for a decree, that the heirs of George King convey the said legal title to the com- 1 plainants, in fulfillment of the agreement of George King; and in the event that the same, for any reason, could not be done, that the said property stand charged to the amount of the repairs and improvements put on it by the complainants ; and for other and further relief, &c. After the decease of George King in 1830, largely in debt, to the amount of $36,000, and insolvent, his whole real and personal estate not being sufficient to pay his debts, in fact not more than thirty-nine per cent, of his just debts ; his whole real estate was sold by Raphael Semmes, appointed trustee by the court of chancery for that purpose, at the instance of George King’s creditors ; and among the rest the property now in controversy was sold for $1660 to John W. Baker. John W. Baker deposited $1190.18, part of this purchase-money, in the Mechanics’ Bank of Georgetown, in 1826 and 182?, to remain until the termination of this suit; the first deposit was made on the 26th of July 1826, after the filing of this bill. In the suit instituted by the creditors of George King, to compel a sale of his real estate for the payment of his debts, all the heirs of George King were made parties, and among the rest, the said Thompson and wife. The sale to Baker never was ratified, in consequence of this suit instituted by Thompson and wife. The heirs of George King (his estate being insolvent) feeling no interest in the suit, filed their answers to the bill of Thompson and wife, neither admitting nor denying the facts alleged, submitting themselves to the judgment of the court. Raphael Semmes, the trustee for George King’s creditors, on petition, and by leave of the court, was made a defendant; and allowed to contest t e claim set up by Thompson and wife, as was also Charles King, one o the principal creditors. They denied the pretended contract and gift set up in the bill ; denied the improvements charged to have been made on the property ; averred the indebtedness of George King, at the time of the pre-en ed gift, to a large amount, and the continuance of such indebtedness °t e same creditors up to the time of his death ; and the unlawfulness and yau in law of such gift, if any *could be proved ; and the insuffi- _ ®le°cy of George King’s whole estate, real and personal, to pay his *-jus ebts ; and claimed the proceeds of said house and lot, for said creditors of King. 139 ¿00 SUPREME COURT [Jan’y King v. Thompson. Charles King, as a creditor, also filed a bill against Josiah Thompson and wife, charging in substance the same facts ; to which bill, Thompson and wife responded, re-asserting in substance the matters alleged in the original bill. They admitted, in this answer, that they were married on the 6th of October 1812, and that the alleged gift of the house and lot was made after the marriage. Evidence was taken by the complainants and the respondents, which is fully stated in the opinion of this court ; and on the 5th of April 1832, the circuit court, all the parties having been heard together, pronounced a decree directing a conveyance in fee of the property, claimed in the bill, to Josiah Thompson ; from which decree, this appeal was taken. The case was argued by Dunlop and Key, for the appellants ; and by Coxe, for the appellees. For the appellants, it was contended, that the decree of the circuit court was erroneous, and ought to be reversed : 1. Because the letters of George King do not import any contract, binding him or his heirs to convey the property in fee to Thompson, nor does Thompson’s bill pray such conveyance. Because the letters and proof in the cause, show no contract concluded, or ascertained with such certainty, as to warrant a decree for specific execution. 2. If there was a contract of gift, it was made after marriage, without any valuable consideration, was voluntary, and cannot be enforced even against George King’s heirs. The said gift was fraudulent and void. 3. Because George King was indebted, at the time of the alleged gift, and so continued up to the time of his death ; and his creditors, at the time of the gift, represented by Semmes the trustee, are yet unpaid, and the said King’s estate insolvent. 4. The improvements made by Thompson gave him no lien on the property, nor any claim to a conveyance to himself in fee. If made, they con-*2101 stituted a personal claim against George *King, more than set off by J the enjoyment and occupation of the house and lot for many years, and by Payne’s debt, paid for Thompson by George King’s estate. Dunlop, for the appellants, contended :—1. That there was no contract of gift proved, or none such as Thompson’s bill and the decree below enforced. The decree is for a deed, in fee, to Thompson himself. The letters (and they are the only evidence of the alleged gift) do not show any engagement on the part of George King to convey to Thompson. The letters show a resolute determination on the part of King, not to deed to Thompson ; but to give, what he meant to give, to Thompson’s wife, the daughter of King. The letters show the parties to be still in treaty about the terms. The letter of the 29th of April, 1816, contained an alternative offer ; and if Thompson assented, which of the alternatives did he choose ? It is clear, that no definite contract was concluded—none so specific, that a court of equity could decree its performance. Moreover, the court has decreed neither of the alternatives, but a thing entirely different, and never in the contemplation of the con tracting parties. But if the contract was sufficiently proved, it was founded on t e con sideration of love and affection only, was voluntary, and cannot be en oic 140 1835] OF THE UNITED STATES. 210 King v. Thompson. even against the other heirs of George King. The other heirs of George King have the legal title, and having equal equity with the complainants, Thompson and wife, no court of equity would disturb them. As between the parties, a court of equity will not interfere to set aside a fair voluntary conveyance. But it is a clearly settled rule, that chancery will not decree a specific performance of a mere voluntary covenant, without consideration, to make a conveyance ; and this the court is here asked to do. Black n. Cord, 2 Har. & Gill 100; 1 Madd. Chan. 414-15 ; Osgood v. Strode, 2 P. Wins. 242 ; Francis’s Maxims 14, ch. 15. It is said, that the contract was ante-nuptial, and that marriage is a valuable consideration. There is no proof of this fact, and the onus of proof is on Thompson and wife. But if there was any ante-nuptial promise, it was by parol, and therefore, void. It could not be valid, unless reduced to writing before *marriage. Reade n. Livingston, 3 Johns. Ch. r*2ii 488-9 ; and the cases there cited. The proof, howeVer, is, and so L Thompson and wife in their own bill say, that the promise was postnuptial. It is also urged, that the improvements and repairs constituted a valuable consideration. In the first place, the repairs were injudicious, extravagant, and not such as George King had authorized. They could, so far as they were lawful and authorized, only amount to a personal claim on George King. At all events, these repairs could be no consideration for the original value of the property, that is to say, for the value of the property before the improvements were put upon it. The repairs did not inure to the use of King ; and Thompson and wife have had the benefit of them, in the occupation of the property for many years. The bill itself does not ask for a conveyance on the ground of repairs, but goes solely upon the contract of gift by the father to the daughter. If repairs could give a title, a parent in debt might, on this pretence, and in defiance of creditors, settle all his estate on his children. 2. If there was a gift, and it could be enforced in equity against King’s heirs, it is void against creditors. George King was largely indebted, at the time of the pretended gift. Many of those who were creditors at the time continue to be creditors to this day* and are now resisting Thompson’s claim. As against them, the contract is absolutely fraudulent and void. Indebtedness at the time is not only a badge of fraud, but as to such creditor, continuing to be a creditor, per se, avoids the contract or conveyance. The evidence is clear, that the creditors now before the court were many of them creditors at the time of the gift. Reade v. Livingston, 3 Johns. Ch. 497 ; Sexton v. Wheaton, 8 Wheat. 241-4, et seg.; Lessee of Ridgeway v. Underwood, 4 W. C. C. 129; Ridgeway v. Ogden, Ibid. 139. If the indebtedness of King was only evidence of fraud, and not conclusive to avoid the deed, the record shows him to have been so much involved, at the time of the gift, as to lead a court of equity to set it aside for fraud. It cannot be said to ave been a fair transaction. He did not leave enough undisposed poio o > to pay his creditors at the time. Subsequent creditors, under such circumstances, could impeach it for fraud, and d fortiori, creditors at the time. Hinde v. Longworth, 11 Wheat. 199. Coxe, for the appellees.—The original bill asks either a conveyance in 141 212 SUPREME COURT [Jan’y King v. Thompson. fee, in execution of the agreement between George King and Josiah Thompson; or that the value or cost of the improvements shall be decreed to be a lien upon the property on which they were made. The cost of the improvements was larger in amount than the property would now bring, and thus the result of either decision would be the same. The precise form in which the relief sought in the circuit court by Thompson and wife shall be given, is, therefore, altogether immaterial. The appellants, in their first petition, assert that the letters of George King do not import a contract binding him or his heirs to convey the property in fee to Thompson and wife ; nor does the bill ask for such a conveyance. They say, the letters and proof in the case show no contract, concluded or ascertained, with sufficient certainty, to warrant a decree for specific execution. The appellants are not authorized to select parts of the evidence, and allege for error, that they, when taken alone, do not sustain the decree. Whether the conveyance be directed to be made to Thompson, or to him and his wife, is not a matter for the appellants. It is a sufficient answer to their claim, that it can properly be made to either or both. This court is competent to rectify the decree in favor of those entitled. As to the ground, that no proof is shown for a specific performance; it is answered, that the averments and proof are sufficiently distinct. 1. As to the property embraced in the arrangements. 2. As to the nature of the estate to be created. 3. As to the consideration. The only doubt is as to the respective interests of Thompson and his wife ; this, as has been said, is not a matter in which the appellants have any interest. The heirs of George King have not appealed ; the pleadings show this. *91o-i The appellants’ second ground for reversal is, that if there *was J a contract or gift, it was after marriage ; was without any consideration ; and was voluntary, and cannot be enforced against George King s heirs. That the gift was fraudulent and void. This exception is given in a questionable form. It does not assert, that the gift was gratuitous, or that it was purely voluntary. But if it did, there is no rule in equity that such a gift cannot be enforced in equity. To the word “ voluntary,” different significations are given by courts of equity. This case may not be called a gift. It was a contract executed, in everything but a conveyance, and this equity will enforce. Although it sometimes comprehends all conveyances without any pecuniary consideration, or valuable consideration ; yet when it is used to indicate that species of conveyance which equity will not aid or enforce, it means that conveyance which has no meritorious consideration, either good or valuable. Equity is remedial only to those who come in upon an actual consideration. But there are precedents of relief where it is a provision for children. Fonbl. b. 1, c. 5, § 2, p. 348-9 ; also note to Sugd. on Powers 275-6 ; Hardham v. Roberts, 1 Vern. 132 ; Thompson v. Attfield, Ibid. 40 ; Colman v. Sarrell, 1 Ves. jr. 50 ; Minturn v. Seymour, 4 Johns. Ch. 497, 500 ; McCall v. McCall, 3 Day 402 ; Hindds Lessee v. Longworth, 11 Wheat. 213. But the consideration in this case stands on a higher footing than that of being simply meritorious ; the contract was mutual and executory, 4 ne consideration was actually paid by Thompson ; he laid out large sums i valuable improvements, and owing to the depreciation of the property, these sums cannot be reimbursed. To make a consideration valuable, there nee 142 1835] OF THE UNITED STATES. 213 King v. Thompson. be no pecuniary benefit passing to the vendor. Anything injurious or detrimental to the other party, is equally operative in making the contract binding. Roberts on Frauds 15. Such a contract, on such a consideration, carried into actual execution by Thompson, by the expenditure of his money, by taking possession, and continuing in possession from 1813 to 1835, cannot now be disturbed. It is assigned as a reason for reversing the decree of the circuit court, that the gift was fraudulent and void. *The meaning of this is, that r*214 the gift is void, because it is fraudulent. But in the pleadings there is no allegation of fraud. This is a necessary averment, and is uniformly required. 6 Har. & Johns. 24. There is no ground assigned upon which the conclusion of fraud can be based. It has been settled by this court, that a deed, though voluntary, is not, in general, void as against subsequent creditors. Sexton v. Wheaton, 8 Wheat. 229. The only creditor who has intervened, is Charles King, and he was not a creditor at or near the time of this contract. In no part of the record does any ground appear on which he could impeach the validity of the proceeding. The whole proceedings in his suit to enforce payment out of the real estate, were insufficient and informal. No administration account appears to have been settled ; no deficiency of real estate has been established. There is no allegation than any other creditors are interested. One creditor cannot, on his own behalf solely, proceed against the real estate of a deceased debtor. 4 Simons 37. The last point insisted upon by the appellees is, that the expenditures by Thompson constituted no lien on the property. There is no fraud imputed to Thompson and wife. Theii' conduct is unimpeached and unimpeachable ; they acted fairly ; their possession was notorious; taxes were charged to them in the assessments of the property, and the money for the repairs was advanced in good faith. This, then, is a far stronger case than that of Handing n. Handy, 11 Wheat. 103. In that case, the court allowed the property to which a title had been obtained by improper means, to stand as security for the repayment of the expenditures, &c. In this case, the form of the decree, save as to costs and expenses, is immaterial. It is admitted on all hands, that the property cannot reimburse the expenditures for improvements. If the appellants will pay the expenses of a reference to a master and a sale, the appellees are content with a decree to receive merely the debt actually due. in reply, insisted on the insolvency of George King *at the r time of the proposition to Josiah Thompson. The evidence showed L that debts due to the banks in the district of Columbia, and indorsements on notes, existed at the time, which were not paid during his life, and created the great deficiency in his estate, which is not now denied. The proceedings of the plaintiffs in error, were to subject the whole real estate of George King to the payment of his debts ; there being a deficiency of personal assets. The first proceeding by the appellees in their original bill, was to obtain from the heirs of George King, a specific performance of an alleged contract. Their bill was not framed on the ground that it was a contract for a valuable consideration. He denied, that if there were no creditors of George King unpaid, there 143 215 SUPREME COURT [Jan’y King v. Thompson. was any contract proved which would be sustained by a court of equity, and which was binding on the heirs of George King. McLean, Justice, delivered the opinion of the court.—This is an appeal from the decree of the circuit court for the district of Columbia. The defendants here, who were the complainants in the circuit court, filed their bill, stating, that in the year 1812, they were married ; and that the wife of the complainant is the daughter of George King, who at that time lived in Georgetown, and was extensively engaged in a profitable mercantile business. That his credit was high, and complainants believe he was possessed of a large active capital; and, in addition, had a large real estate, consisting of houses and lots in Georgetown. That it was universally believed, he would have a large surplus property, after paying his debts, which would enable him to provide handsomely for his children. That a few days after the marriage, George King proposed to grant to the complainant, Thompson, a house and lot on Cecil alley, in Georgetown, which was very much out of repair, and almost untenantable, provided he would repair the same so as to make it a comfortable residence ; and that the said King at the same time stated, he intended the property for the wife of the complainant. The complainant accepted the property, and expended upwards of $4000 in mak-* ing repairs of the house, and other *improvements on the lot. That -I he occupied it as a residence about four years, and then removed to the western country. Before his removal, a correspondence took place between him and the said King in relation to the title ; and the complainant made King his agent to collect the rent, &c. The complainant further states, that the said King died intestate ; leaving, in addition to the wife of the complainant, certain children who are made defendants ; and a decree for a legal title is prayed, or if that cannot be decreed, that the property may stand charged to the amount of the repairs and improvements. George King died in the year 1820, insolvent. His debts amounted to $36,000, and his whole estate, both real and personal, when sold, did not pay more than thirty-nine per cent, of his just debts. The property claimed by the complainant was sold for $1660, by a trustee, under a decree of chancery, obtained by the creditors of George King, but the sale has not been ratified. Raphael Semmes, the trustee of George King’s creditors, and Charles King, one of the principal creditors, filed their answers to the bill of the complainant, in which they deny that the improvements were made on the property, as set forth in the bill, and insist, that George King, at the time of the pretended gift, was embarrassed and unable to pay his debts; and they insist, that the right set up by the complainants is fraudulent and void as against creditors. There are some irregularities in the record which it is not material to notice, as these statements show the points to which the evidence applies. The first inquiry is, whether a contract was made between the complainant and George King for the property in question ? It is insisted, by the complainant’s counsel, that the correspondence between the parties, which is contained in the record, establishes the contract. The first is a lettei from George King to the complainant, dated 17th April 1816. In this letter, King says, “ that in order to remove any suspense in regard to the property on which the complainant then lived, that he held himself bound 144 1835] OF THE UNITED STATES. King V. Thompson. 216 to give a deed to a trustee, who shall hold it in trust for the complainant and his wife, during their lives,” &c. *This letter is answered by the complainant, 26th April 1816, in which he declines the terms proposed, L 2 7 and suggests the following : 1. Let the property be valued at the time it was put into his possession, and that he would pay the amount over to King, &c. 2. That the improvements should be estimated, and King, on paying the amount, should receive a relinquishment of all the right of the complainant. 3. That a deed should be executed for the property to the wife of the complainant. On the 29th of April 1816, King replies, “I make no hesitation in complying with your first proposal, for it is just what I proposed in my first to you, and I will do it another way, giving you your choice, viz., I will deed the dwelling-house and all above it to you, and about twenty feet below it; and then all below that I will deed to Betsey,” the wife of the complainant, “ provided she will never deed it, or dispose of it, except by will, which she shall always be at liberty to make, when and how she pleases.” On the 14th of August 1819, King writes to the complainant, “Mr. Kennedy has left your house, since the first of July last, and I have not been able to get a tenant since. Houses are very dull here now ; rents have fallen very much,” &c. And on the 23d of March 1831, George King, son it is presumed of George King, deceased, writes to complainant, “ I am sorry to inform you that Mr. Jacob Payne has laid an attachment on your property in Georgetown,” &c., referring to the property in controversy. This is all the evidence to show a contract, except what might be presumed from the occupancy and improvement of the house and lot. Specific propositions were made by each party, in regard to the title of the property but it does not satisfactorily appear, that either was finally accepted. The complainant, in the first place, objects to the conveyance of the property to a trustee, for the benefit of his wife ; and he proposes to pay to King the value of the property at the time it was put into his possession, which sum, at the pleasure of the donor, might be invested for the benefit of complainant s wife. To this. King replies, that he *has no hesitation in accepting the proposal, but he accompanies this acceptance with a L *18 proposition to deed the dwelling-house, with a certain part of the lot, to the complainant, and the residue of the lot to his wife. Whether this last proposition, or the one made by the complainant, and assented to by King, formed the contract, is uncertain, or indeed, whether any definite agree-ment was finally made. From the occupancy of the property and the amount of money expended in improving it, there can be no doubt, that t ere was an understanding between the parties, that the property, in some manner, should be possessed and owned by the complainant. The evidence, owever, shows, that King did not intend to vest the property absolutely in t e complainant; but that the value of it, before the improvements, should, m some form, be secured to the complainant’s wife. This court are now called on to decree a specific execution of this contact ; and what are its terms ? Shall the title be vested in fee in the com-p amant, without condition ? or shall a part of the property be vested in lust for the benefit of his wife ? or, shall the title be vested in the complainant, on his paying into the hands of trustees, for the benefit of his e, the value of the property when he first received it ? The evidence °es not afford a satisfactory answer to any one of these inquiries. It is 9 Pet.—10 J45 218 SUPREME COURT [Jan’y King v. Thompson. impossible, therefore, for the court to decree a title as prayed for in the bill, as the evidence fails to establish the specific terms of the contract. But it is insisted, that this arrangement or contract, if proved, was void as against the heirs of King, and especially, as against his creditors ; on account of the indebtedness of King at the time, and his subsequent insol-•vency. Although a contract is not proved with sufficient certainty, as to its conditions, to authorize a specific execution of it, yet there can be no doubt, there was an agreement between the parties, which induced the complainant to enter into the possession of the property, and to expend large sums of money upon it, as if it were his own ; and when he left it and removed to the western country, it was rented as his property, and George *oi q1 King acted as the agent of the complainant. And *the property J seems to have been considered as belonging to the complainant, by the heirs of George King. Whatever uncertainty may exist, as to the terms of the contract, there can be no question, that the complainant acted under it, in taking possession of the property, and expending a large sum of money in its improvement. In no point of view, could such a contract be considered voluntary. There was not only a good consideration, that of natural affection ; but a valuable one. To constitute a valuable consideration, it is not necessary that money should be paid : but if, as in this case, it be expended on the property, on the faith of the contract, it constitutes a valuable consideration. The debts of George King for the years 1812, 1813 and 1814, amounted to about $13,000 or $14,000, of which $11,000 were due to the Bank of Columbia. And the average amount of his debts, from 1812, until his death, was about the sum of $13,000. In 1812, and for some years afterwards, George King was supposed to be rich. For his house on High street, he refused $12,800. The whole, amount of his property was estimated at $60,000 or more. He was indorser on accommodation notes for about $20,000, at the above period. At this time, the property claimed by the complainant was not worth more than $2000 or $2500. Its value was increased three or four times this sum by the improvements. In 1827, it appears, by an exhibit of the debts due by the estate of George King, including interest, that they amounted to the sum of $36,418.10. But many of these debts seem to have been contracted subsequent to the time that the property in question was placed in the possession of the complainant. It appears also, the property of which King died possessed, did not pay forty per cent, of the debts due by the estate. And that he retained the greater part, if not the whole of his real estate, except the lot claimed by the complainant, until his decease. But it seems, from the prices fixed upon this property in 1813, and those for which it was sold, that there must have been a great deterioration in the value of it. Under the above circumstances, it is insisted by the appellants, that the contract with the complainant, by George King, for the above property, was fraudulent. , *It has already been observed, that the money expended in the improvement of this property, constituted a valuable consideration. The contract, therefore, if proved, so as to entitle the complainant to a decree for a specific execution, could not be avoided, on the ground that there was no consideration. At the time this property was received y the complainant, King was supposed to be rich. His property was esti 146 1835] OF THE UNITED STATES. King V. Thompson. 220 mated at $60,000 ; his debts did not exceed $13,000 or $14,000, and his indorsements were about $20,000. That his credit stood high, is shown by his indorsements, and the standing accommodation given to him in the banks. So high did he stand as a man of property and business, that it was deemed a valuable object to obtain his services as director in one of the Georgetown banks. There seems to have been no diminution of his credit or means, for several years after the transaction with the complainant. In testing the validity of that transaction, the subsequent fall of property or failure of King, cannot be taken into view. The inquiry must be limited to his circumstances at the time. Was King, when this property was received by the complainant, in a failing or embarrassed condition ? It is not shown, that, at this time, the persons for whom he was bound as indorser, were unable to pay the respective sums for which he was responsible ; and it would be improper to consider these sums as debts due by King. He was responsible for their payment, on certain contingencies ; but the fact that his credit remained unimpaired for several years after the contract with the complainant, shows that neither his credit nor the credit those for whom he was indorser, was considered doubtful. In this state of facts, King surely was in a condition to dispose of a house and lot, not worth more than $2500, on the terms stated in the bill. There appears to have been no fraudulent intent in the case ; no disposition to defeat the claims of present creditors, or to cover the property from future demands. It seems to have been a bond fide transaction ; and one which neither a court of law nor of equity could refuse to sanction. And if the terms of the contract were established, so that this court could decree a specific execution of it, they would pronounce such a decree. *But régnas a specific performance cannot be decreed, the inquiry remains, L whether the complainant has a lien on the property for the money he expended in improving it. The ’counsel for the appellant do not. controvert the right of the complainant to a just remuneration for the valuable improvements he made ; but they insist, that he must exhibit his claim as a general creditor of the estate of George King ; and that from such claim there should be deducted a reasonable rent for the time the property was in his possession. This ciaim for improvements by the complainant, is founded upon the most equitable considerations. At the instance of George King, his father-in-law, the complainant entered into the possession of this property ; and under a full belief that it would be secured to him as his own, he was induced to expend a large sum of money in making permanent and valuable improvements. These improvements, some of the witnesses say, have increased the value of this property to three times the amount which it was worth before they were made. From this, it appears, the money was not injudiciously expended ; and the question arises, whether this expenditure, under the circumstances of this case, does not create a lien upon the property. If King were living, he could not object to this lien. Can his creditors object to it ? By enforcing it, can their interests be injuriously affected ? it may be said, that the deterioration of property in Georgetown, has been such as to reduce the value of this property to a less sum than was expended m making the improvements. This cannot change the principle that must govern the case. If the money has been judiciously expended, under such 147 221 SUPREME COURT [Jan’y King.v. Thompson. circumstances as to entitle the complainant to a lien, the court must give effect to it. It is an equitable mortgage, and in a court of chancery, is as binding on the parties as if a mortgage in form, had been duly executed. Suppose, George King, for the purpose of improving this property, had borrowed from the complainant $4000, and had executed a mortgage on the same property, to secure the payment of the money. Could the creditors of King complain of the lien of the mortgage ? It is clear, they could not. * - And is it not equally clear that they have no ground to complain *of J the equitable mortgage ? If there be any difference in the force of the liens thus created, it must be in favor of the equitable lien. In the first case supposed, the money was loaned at a fixed rate of interest, and the property was looked to as securing the payment. But in the second case, the money was expended under a belief that the property belonged to the individual, and that the amount expended increased so much the value of his estate ; and in many cases, a failure to obtain the property under such circumstances, would cause an injury which a return of the money expended would not repair. It would be most unjust, to leave the complainant, as a creditor, to receive a dividend on the distribution of the estate of King. Ought the complainant be held accountable for rents, while he occupied the premises ; or which he may have subsequently received from his tenants ? The rents received by the complainant, after his removal to the west, independent of other facts in the case, go to show that he was not considered as the tenant of King. Indeed, there can be no doubt, that the complainant considered the property as his own ; and it was so treated by George King, for he collected the rents as the agent of the complainant, and accounted to him for them. It would, therefore, be unjust now to compel him to pay rents which, with the concurrence of all parties, were paid to him at the time they accrued, as his own. And, in addition to this, the interest on the money expended, would, perhaps, be equal to the whole amount of the rents. As the circuit court decreed a conveyance of this property to the complainant, that decree must be reversed; and the cause remanded to that court, with instructions to cause the property to be sold, after due notice, on such terms as they shall deem most advantageous to the estate of George King ; and the proceeds of the sale, first to be applied to the payment of the money expended by the complainant in making improvements on the property, and the balance, if any, to be paid over for the benefit of the creditors of the estate of King. This cause came on to be heard, on the transcript of the record * , *from the circuit court of the United States for the district of Co- 2$-* lumbia, holden in and for the county of Washington, and was argue by counsel : On consideration whereof, it is ordered and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby reversed ; and that this cause be and the same is hereby reman de to the said circuit court for further proceedings to be had therein, accor ing to law and justice, and in conformity to the opinion of this court, U8 1835] OF THE UNITED STATES. *224 *The Mayor, Aldermen and Inhabitants of the City of New Orleans, Plaintiffs in error, v. Christoval G. De Armas and Manuel Simon Cuoullu. Federal jurisdiction. A lot of ground, situated in the city of New Orleans, which was occupied, under an incomplete title, for some time, by permission of the Spanish government, granted before the acquisition of Louisiana by the United States, was confirmed to the claimants, under the laws of the United States, and a patent was issued for the same, on the 17th of February 1821. The city of New Orleans claiming this lot as being part of a quay dedicated to the use of the city, in the original plan of the town, and therefore, not grantable to the King of Spain, enlarged the levee, in front of New Orleans, so as to include it. The patentees from the United States brought a suit in the district court of the state of Louisiana for the lot, which pronounced judgment in their favor, and that judgment was affirmed by the supreme court of the state; the judgment was removed to this court, under the 25th section of the judiciary act; a motion was made to dismiss the writ of error for want of jurisdiction. The merits of this controversy cannot be revised in this tribunal; the only inquiry here is, whether the record shows that the constitution, or a treaty, or a law of the United States has been violated by the decision of that court. The 25th section of the judiciary act is limited by the constitution, and must be construed so as to be confined within these limits; but to construe this section so that a case can arise under the constitution or a treaty, only when a right is created by the constitution or treaty, would defeat the obvious purpose of the constitution, as well as the act of congress ; the language of both instruments extends the jurisdiction of this court to rights protected by the constitution, treaties or laws of the United States, from whatever source these rights may spring.1 To sustain the jurisdiction of this court in this case, it must be shown, that the title set up by the city of New Orleans, is protected by the treaty ceding Louisiana to the United States, or by some act of congress applicable to that title. The third article of the treaty of Louisiana stipulates for the admission of Louisiana into the Union, and it obviously contemplates two objects ; one, that stated ; and the other that, until that admission, the inhabitants of the ceded territory shall be protected in the enjoyment of their liberty, property and religion ; had any of these rights been violated, while the stipulation continued in force, the individual supposing himself to be injured, might have brought his case into this court, under the 25th section of the judiciary act. But this stipulation ceased to operate, when Louisiana became a member of the Union, and its inhabitants were “ admitted to the enjoyment of all the rights, advantages and immunities of citizens of the United States.” The right to bring questions of title decided in a state court before this tribunal, *is not classed among those immunities; the inhabitants of Louisi- r#99K ana enjoy all the advantages of American citizens, in common with their brethren in L their sister states, when their titles are decided by the tribunals of the state. The act of congress admitting Louisiana into the Union, carries into execution the third article of the treaty of cession; and cannot be construed to give appellate jurisdiction to the court over all questions of title between the citizens of Louisiana. The patent granted to the claimants of the land did not profess to destroy any previous existing 1 See Crowell v. Randell, 10 Pet. 368, for a review of the cases arising under the 25th section of the judiciary act. It was there decided, that to bring a case within that section, it must appear upon the face of the record: 1. That some one of the questions stated in that section did arise in the state court. 2. That t e question was decided in the state conrt, as required in the same section. 3. That it is not necessary that the question should appear on the record to have been raised, and the decision made, in direct and positive terms; ipsis- simis verbis ; but that it is sufficient, if it appears by clear and necessary intendment, that the question must have been raised, and must have been decided, to have induced the judgment. 4. That it is not sufficient to show, that a question might have arisen, or been applicable to the case; unless it is further shown, on the record, that it did arise, and was applied by the state court to the case. (p. 398.) T iese points have been re-affirmed in numerous subsequent cases, and have never been departed from. 149 225 SUPREME COURT New Orleans v. De Armas. [J an’y title, nor could it so operate; the patent was issued under the act of May 1820, entitled “ an act supplementary to the several acts for the adjustment of land titles in the state of Louisiana ; that act confirms the titles to which it applies, “ against any claim on the part of the United Statesthe title of the city of New Orleans could not be affected by this confirmation. It is a principle applicable to every grant, and it cannot affect pre-existing titles. United States v. Arredondo, 6 Pet. 733, cited. Error to the Supreme Court of Louisiana. The defendants in error commenced a petitory action, by filing a petition in the first district court in and for the first judicial district for the state of Louisiana, claiming to be the owners of a lot of ground, in the city of New Orleans, eighty feet front, and close to the foot of the Old Levee, between St. Philip’s and Maria streets ; and stating that the lot had formerly been built upon, and had been possessed by a certain Thomas Beltran, or Bertrand, with the knowledge, permission and authorization of the Spanish government, from March 1788, to 1803, and by his widow, who afterwards demolished the buildings, and removed to another part of the city. The widow, acting for herself and the minors, took all the legal steps to have the title confirmed by the United States ; and the commissioners of the land-office reported on the title, that “it would be more an act of justice than of generosity, if the government should confirm it.” The commissioners under the act of congress of 11th May 1820, entitled “ an act supplementary to the several acts for the adjustment of land-claims in the state of Louisiana,” confirmed the title against any claim of the United States ; and a patent for the same was granted to the widow and heirs of Bertrand. After the death of the widow, the petitioners became the owners of the property by purchase from her heirs—they being also the heirs of Bertrand. *096'1 The petition proceeded to state, that prior to the cession of Lou. • isiana by France, the lot of ground belonged to the King of France ; and by the laws of Spain, which were introduced into the colony of Louisiana, after the said cession, the King of Spain, by his officers, had the full right of disposing of the same. By the retrocession of the colony to France by Spain, the right to the lot of ground became vested in France, if it was not the property of Bertrand ; and the same right was not divested by any act done by the King of Spain, except in favor of Bertrand. That, by the treaty of cession of Louisiana to the United States by France, the United States clearly acquired every lot of ground, land, squares (emplacemens terrains), buildings, fortifications and edifices therein, which were not private property; and that the grant made by the afore-mentioned letterspatent, therefore, justly and lawfully vested in the said widow of Bertrand, with all the rights of ownership and possession, which all the different governments who had possessed Louisiana, had or could have to the said lot of ground. The petition alleged, that the corporation of New Orleans, under the pretence that the lot claimed by the petitioners was a part of certain quays marked on a plan of the city, had enlarged the levee in front of the city, so as to include the same, and pretended that they had just title to this lot; and prayed process, &c., and that it might be adjudged and decreed, that the petitioners were the only true and lawful owners and proprietors of the above-described property; and that the said mayor, aidermen and inhabitants had no right whatever in, to or upon the same. The answer of the corporation of New Orleans denied that there ha 150 1835] OF THE UNITED STATES. New Orleans v. De Armas. 226 been an absolute grant of the lot in question bv the qn • k Bertrand, but only a permission to hniW a t by ™ Sp sb government to I government would have at anv tim?’ theydo deny’tbat tbe SPanish parcel of land *to the said Beltran or Bor A 1“ 2S°h-? grant of tbe 8aid I pa-ei" sovereign himself had no authoritv tn PUbbf tbinS8 which even the public, without a flagrant abuse of his dlSp°Se °£ *° tbe prejudice of the ther say, that at thftime of th 2 £Ad tbese def*ndants fur-under the French government said ? °f °f New ^cans, the river Mississippi and the first $ vernment left between the bank of space, emptied and? unoccun^ T°USeS fr°Dting Said riv^ a ^ge serve and to be reserved asPsuch fot th na“e,°f ?uay8’ and intended to as they exist in the several cities of Fr«n USG tbe inbabitants of this city, proved by the ancient plans of th S ? ??d “ ber col°nies ; and as it is preserved in the office of the maHn ? °/ °rIeans’ which have been at Versailles, in France ” ’ maP8 and pIans> which existed «AS, »0 on the exhibi-district court, on the mb of V evldence oi “•<> Parties; the the petitioners in the following termed 82’gave a Mg'nent in favor of »¡tie, obtained“^ grant from^he tV G°nZaIeS’from *>" they derive the defendants have at6S °f the 'Ot “ I™8«“-, ‘hat dude with the payer that theA 1 TV° aS tO embrace said lot, and con-the defendants enjoined from diXrl/6 to be the lawful owners, and rights as owners of said lot The d athem “* the free enj°yment of their grounds ; but the only one Uieli thi® °laim Upon 8everal ce88 is, that the spaceVetween the X ? h Up°n witb any hope of yas, at the time the citv was 2 budding8 of the city and the river tended to be kept opel for 2^ the g°vernment of France, could not be the subject of a ¿ant as a and which true, the conclusion drawn f If tb, s’ as 8tated in the answer, sovereign could not cede whaT/ i b?m WOuId be undeniable. The retrocession or forfeiture 1X2 ? already granted, unless there be claim is a fac-simile of a plan 8Upport of the defendant’s to be copied from a plan Hp A ^y Charlevoix, and by him *stated rHsort Ing. de la A™ office, made by N. i*228 ront of the city and the river*uAk marked on tbe sPace between the nature of things ; a quay XL ‘quay-’ Naraes do not change the daal aS Wel1 a8 a corporation A1 iW°rk’ aDd may bel°ng tO an indivi’ and have a defined extent k 2^ t0 belon^ to either, it must not only exist ^■evident to be t0 have been ^anted- qUay‘ The defendants have SeeU thl8 8pa°e °f ^round’ that i<; is not a ts have shown no other title which can be validly 151 Mb SUPREME COURT [Jan’y New Orleans v. De Armas. opposed to the grant under which the plaintiffs claim ; there is no material difference between this and the case of Metzinger and the defendants ; that was a grant under the King of Spain ; this a grant under the United States, who have succeeded to the same rights. Had the defendants sheltered themselves under their charter, and shown that the public safety required that the base of the levee should be extended, to prevent inundation, or that it was necessary for a public way, the case might have presented a different aspect. It is ordered and decreed, that the defendants be enjoined not to disturb the plaintiffs in the possession and free exercise of their rights, in and to the lot mentioned and described in their petition, and that the defendants pay costs.” From this decision, the corporation of New Orleans appealed to the supreme court of the state of Louisiana. In February 1833, the supreme court affirmed the judgment of the inferior court, and the case was finally disposed of, by a judgment in favor of the original petitioners—a rehearing having been refused, on the 27th of March, in the same year. The mayor, aidermen and inhabitants prosecuted this writ of error ; and the following errors in the judgment of the supreme court of Louisiana, were assigned by the plaintiffs in error, and came up with the record. “The judgment of the supreme court of the eastern district of the state of Louisiana, affirming the judgment of the court of the first district of said state, is erroneous, and ought to ba reversed, and judgment ought to be rendered in favor of the plaintiffs in error, with costs; for the following reasons, and such others as may appear on the record. *2291 *1* SP0^ ground *n controversy makes part of an open J space in front of the city of New Orleans, called a pay, which by the ancient plans of the city was constituted a quay, or public place, and dedicated to public use, as well by its designation on said plans, as by the sovereign authority, and by its use and occupation for public purposes. 2. The right of the former sovereigns of Louisiana over this place was a matter of prerogative, varying according to the institutions of the different governments which have held Louisiana, but always inseparable from the sovereignty. 3. The right of use of this place by the public is a vested right; is a species of property in which the inhabitants of Louisiana are protected under the third article of the treaty of cession. 4. By the treaty of cession, Louisiana was ceded in full sovereignty to the United States. 5. The United States held this sovereign power, during the time they held the sovereignty of Louisiana ; but by the admission of Louisiana into the Union, this branch of sovereignty was vested in the state of Louisiana, and under the constitution, could not exist in the United States. 6. The power of regulating the use or of appropriating or changing the destination of public places belongs to the sovereign power alone. 7. Since the admission of Louisiana into the Union on a footing wit the original states, the United States had no power to interfere with t e property or use of any public place in Louisiana. 8. The plaintiffs in error, who are, under the laws of Louisiana, t e proper parties to vindicate the public rights, held the place in controversy, by permission of, and by the authority of, the state of Louisiana, as w 152 1835] OF THÈ UNITED STATES. 229 New Orleans v. De Armas. appear by the charter of the city of New Orleans and the laws of the state, and claimed the undisturbed use thereof, by virtue of the treaty of cession, and under the act of congress, passed on the 8th of April 1812, for the admission of Louisiana into the Union ; and the decision of the supreme court of the eastern district of Louisiana is against the title, rights and privileges thus claimed by the plaintiffs in error, and this is contrary to the provisions of the treaty and law of the United States ; and ought, therefore, to be reversed. *Clay and Porter, for the defendants in error, moved to dismiss r*nq0 the writ or error for want of jurisdiction. L The jurisdiction will be attempted to be sustained, on the allegation that the questions in the cause depend on the treaty by which Louisiana was ceded to the United States. It was understood, that in some cases the court had permitted a cause to be argued on the merits, before the question of jurisdiction was decided : but this was when the whole of the matters in the cause were so intermixed as not to permit the point of jurisdiction to be separately examined. Such is not the fact in this case ; the question of jurisdiction stood forth from the merits. If the jurisdiction can be supported, it will rest on the first, second and third articles of the Louisiana treaty, and principally on the third article, which declares that Louisiana shall be incorporated into the Union, and in the meantime that the inhabitants should be protected in their property. The execution of the provision of the treaty to incorporate Louisiana, as a state of the Union, was looked to, in thus securing the property of the inhabitants. It was not necessary to provide for the rights of property afterwards. From the time of the incorporation, property in the state was held under the guarantee of the constitution of the United States, as the property of the citizens of other states is held. After the admission of Louisiana into the Union, as a state, the treaty ceased to operate. From that time, the rights of property depend upon, and are to be decided by the laws and by the courts of the state. But if these are not the effects of the admission of Louisiana into the federal family, this is not a case arising under the treaty. The purpose of the 25th section of the judiciary law, under which the jurisdiction in this case is claimed to exist, is to enable this court to carry the constitution, treaties and laws of the United States into execution. Owings y. Norwood's Lessee, 5 Cranch 344. The case must arise out of—spring out of, a treaty; be created by the treaty, or the right claimed be given by the treaty, and which requires the courts of the United States to give force to the treaty. The title of the defendants in error originated during the existence of the right of the Spanish crown to Louisiana ; and *was afterwards p23i confirmed by patent from the United States. The plaintiffs in error claim the lot in controversy as a part of a quay which belonged to the inhabitants of New Orleans, and so designated in a map ; it having, as they allege, been appropriated for public use, before the cession of the territory. J-bus, both the parties claim under the Spanish crown, and assert their rights as having existed prior to the, treaty ; and neither claims under the treaty. e treaty has nothing to do with the title of either ; and in the state courts, nothing was said of it. The property was granted, before the treaty, to 153 231 SUPREME COURT [Jan’y New Orleans v. De Armas. Bertrand ; and is now in the grantees of his heirs, under the Spanish grant; or, at the time of the cession, it was vacant, and has since been granted by a patent, and is held under that patent. Again, it is not a case arising under the treaty, in which the decision has been against the treaty; the decision is in favor of the treaty. Both the corporation of New Orleans, and the defendants in error, were intended to be secured by the treaty. The decision of the supreme court of Louisiana is in favor of a right under the treaty, and under a patent granted by a law of the United States. There is, thus, a perfect neutrality in the parties as to the treaty. It is now contended, that the plaintiffs in error claim under the act of congress of 1812, by which Louisiana was admitted into the Union, as a state. It has not been before asserted, that the city of New Orleans claimed under that law. The question in the courts of Louisiana was, whether the King of Spain had granted, and whether he had authority to grant, the lot in controversy ; it having been previously dedicated to public uses. The city of New Orleans claimed under a dedication in 1788. The act of 1812 did not interfere with or affect either of these asserted rights. It did not authorize the state of Louisiana, thus made a sovereign state, to interfere with the rights of the city of New Orleans. The property never belonged to the state of Louisiana. If, at the time of the admission of the state into the Union, this property passed to or belonged to the state, the state might interfere in the question between the parties to this case, which has not yet taken place. But if such right existed, or does exist, it may yet be presented, as it could *noQl not be affected by the decision in this case. Louisiana, as a state, *has J no other right to come into this court, than have the other states of the Union. Webster, against the motion.—It has not been the practice of the court to discuss questions of jurisdiction, when so intimately blended with the facts and merits of the case, as are these in the cause now before them. If they find the question so connected, they postpone a decision until the whole argument is heard ; and this is desired by the plaintiffs in error. It early became a question, in what manner the questions in a case, which had been before a state court, should be made to appear, so that jurisdiction of them could be taken in this court. It became afterwards settled, that if, in the whole proceeding, it was manifest, that a party set up, under a law or treaty, or the constitution, a right, and a decision was against that right, this court could intervene and exercise its revising power over the case. The only question in this case is, therefore, whether a right of this kind was claimed by either of the parties now before the court. The question of jurisdiction is identical with the main question between the parties. The claim of the plaintiffs below was founded on a patent from the United States ; and the state court held it valid. Thus, their whole title depends upon the validity of the patent. The claims of the city of New Orleans are under the treaty, by which the property of those claiming under the governments which had held Louisiana, was assured to them. The cor poration of New Orleans claim under the treaty, asserting that the proper y was dedicated to public uses, and belonged to the city of New Orleans. e principles on which their right rests, were settled in this court, in the m 154 1835] OF THE UNITED STATES. New Orleans v. De Armas. 232 cinnati and Pittsburgh cases. Barclay n. Howell, 6 Pet. 498 ; City of Cincinnati n. White, Ibid. 431. It the property in dispute was in the inhabitants of New Orleans, at the time of the treaty ; it was out of the power of the United States to grant it to those under whom the defendants in error claim. The decision was against the treaty, which secured the property to the plaintiffs in error ; and in favor of a patent which was given in violation of the treaty. The question is, whether the act of 1812 operates in the *case? The treaty is part of the title which was completed by ri2„„ that act. The creation of Louisiana into a state, made this state the *-guardian and trustee of all the property which had, before that event, become vested in the inhabitants of that part of the territory of Louisiana. The rights thus guarantied by the creation of the state of Louisiana by the act of 1812, have been disregarded by the supreme court in their decision in favor of a patent issued after that act. The assignment of errors shows that the protection of the treaty was claimed by the plaintiffs in error in the state court; and the opinion of Judge Martin, one of the judges of the supreme court of Louisiana, is also evidence of this position. The application of the act of 1812 to the case, was in that court overruled ; and the plaintiffs in error say, that in so doing, the court misconstrued the act. The plaintffs in error contend, that the lot in question was appropriated land in 1788 ; and by the act of 1812, it passed as such into the jurisdiction of the state of Louisiana, as the other property of citizens or inhabitants of the state, and could not afterwards be interfered with or granted by the United States. The effect of the act of 1812, was, to transfer the property to the state for the use of the inhabitants. There are many rights which are in the state, which, if violated, may be brought before this court. Thus, rivers and highways, if interfered with, are such rights. Could not Louisiana, in cases of this kind, come into this court, under the act of 1812 ? Marshall, Ch. J., delivered the opinion of the court.—The appellees claim title to a lot of ground in the city of New Orleans, as purchasers from the heirs of Catharine Gonzales, the widow of Thomas Beltran, alias Bertrand, who had been in possession of the lot, for several years, by permission of the Spanish government. This incomplete title was regularly confirmed under the laws of the United States, and a patent was issued for the premises to Catharine Gonzales, on the 17th of February 1821. The city of New Orleans, claiming this lot as being part of a quay, dedicated to the use of the city in the original plan of *the town, and therefore, not grant- r * If a state magistrate shall administer an oath, under an act of congress expressly giving him the power to do so, it would be a lawful oath, by one having competent authority; and as much so as if he had been specially appointed a commissioner, under the law of the United States for that purpose; and such an oath, administered under such circumstances, would be within the purview of the act of 1823. The act of 1823 does not create or punish the crime of perjury, technically considered; but it creates a new and substantial offence of false swearing, and punishes it in the same manner as perjury. The oath, therefore, need not be administered in a judicial proceeding, or in a case of which the state magistrate, under the state laws, had jurisdiction, so as to make the false swearing perjury; it would be sufficient, that it might be lawfully administered by the magistrate, and was not in violation of his official duty. The language of the act of 1823 should be construed with reference to the usages of the treasury department; the false swearing and false affirmation referred to in the act, ought to be construed to include all cases of swearing and affirmation required by the practice of the department, in regard to the expenditure of public money, or in support of any claims against the United States. The language of the act is sufficiently broad to *include all such cases; J and there is no reason for excepting them from the words, as they are within the policy of the act, and the mischief to be remedied. The act does no more than change a common-law offence into a statutory offence. Certificate of Division from the Circuit Court for the district of Kentucky. At the November term 1834, of the circuit court of the United States for the Kentucky district, an indictment was found against John Bailey, for perjury and false swearing ; under the third section of the act of congress of March 1st, 1823 (3 U. S. Stat. 771), and the 13th section of the act of March 3d, 1825. (4 Ibid. 118.) The third section of the act of March 1st, 1823, entitled “ an act in addition to the act entitled an act for the prompt settlement of public accounts, and for the punishment of the crime of perjury,” is in these words : “ that if any person shall swear or affirm falsely, touching the expenditure of public money, or in support of any claim against the United States, he or she shall, upon conviction thereof, suffer as for wilful and corrupt perjury. The 13th section of the act of March 3d, 1825, entitled “ an act more effect- 158 1835] OF THE UNITED STATES. 239 United States- v. Bailey. ually to provide for the punishment of certain crimes against the United States, and for other purposes,” declares, “ that if any person in any case, matter, hearing or other proceeding, where an oath or affirmation shall be required to be taken or administered, under or by any law of the United States, shall, upon the taking of such oath or affirmation, knowingly and willingly swear or affirm falsely, every person so offending shall be deemed guilty of perjury, and shall, on conviction thereof, be punished,” &c. The indictment charged the defendant, John Bailey, with perjury and false swearing, upon the following affidavit, made by him before a justice of the peace of the commonwealth of Kentucky. “ The Commonwealth of Kentucky, county of Bath, to wit : The affidavit of John Bailey, one of the executors of Captain John Bailey, deceased, states, that he is not interested in said estate ; that Warren Bailey, jun., and James C. Bailey, who have joined with him in a power of attorney to the Honorable Richard M. Johnson, to draw any moneys that may be *due them, from the government of the United States, are the resid- * uary legatees, and solely interested ; that he is---------- years of age, L 240 and the son of said John Bailey, deceased, who, from his earliest recollection, was reputed a captain in the revolutionary army, and in the Illinois regiment ; that he has seen his father’s commission, and thinks there were two; of that fact, he will not be certain, but it is his strongest impression, and is perfectly confident, that the commissions, if two, both were signed by Thomas Jefferson ; that his father’s papers fell into his hands, as executor, and he has made many fruitless searches for them, and can in no wise account for their- loss, unless they were given to General Thomas Fletcher, deceased, while a member of congress, to see if he could get anything, as affiant knows that his father applied to said Fletcher to do something for him, and understood afterwards, the law had made no provision for cases situated like said John Bailey’s. As witness my hand and seal, this---------------- of November 1832. John Bailey.” [seal.] The record of the circuit court contained the following statement of the facts and proceedings of the case, and of the division of opinion by the judges of the court. “ The attorney for the United States read in evidence the papers set out in the indictment, purporting to be the affidavit of the. prisoner, with the certificates of the said Josiah Reed and William Suddeth, and gave evidence to the jury, conducing to prove, that the prisoner did, at the time and place c arged in the indictment, take oath as charged, and subscribe the paper SeK0^ ™ as his affidavit, before the said Reed, and that the WaS’ ^en an<^ there, a justice of the peace of the commonwealth o entucky, in and for the said county of Bath, duly commissioned, quali-e ana acting as such ; and also gave evidence, conducing to prove, that, JupG late^ a^er the passage of the said act of congress of the 5th day of u y 832, entitled ‘an act for liquidating and paying certain claims of the s a e o Virginia,’ the secretary of the treasury did establish, as a regula-un11 ° h Soveynment of the department and its officers, in their action scrih a k the said act mentioned, that affidavits made and sub- *StafG e*ore any justice of the peace of any states of the United r or marry, his or her proportion of such an s all be conveyed by my said trustees, or the survivors or survivor of em, in fee-simple, provided such child shall be capable of holding the 8fDth hereby direct, that upon all sales which shall be made of any part t 1- e P^P^y herein directed to be sold, good landed security shall be en or the payment of the purchase-money in specie. I do declare, that ^is^niy will and desire, that no part of my estate, of any kind, shall go to ha^ r° k’ *n any manner whatever, and as unforeseen events may toF may make it prudent to delay making the sales herein directed e made, I do therefore authorize my said trustees, or the survivors or 199 304 SUPREME COURT Beard v. Rowan. [Jan’y survivor, to use their or his discretion therein, so as to guard against such inconveniences and losses, as there may be danger of the estate suffering by precipitating the sales. I also authorize them or him to alter the times of credit upon such sales, should it be found to the interest of the estate so to do. I do hereby revoke all former and other wills by me made. In witness whereof, I have hereunto set my hand, and affixed my seal, this 25th of July 1786. John Campbell.” [seal.] * , *“ Signed, sealed, published and declared by the testator as and for J his last will and testament, in presence of us, who subscribed our names as witnesses, in his presence, and by his desire. “ Habey Innis, T. Peekins, Cheist. Gbeenup. “ The executors named in my last will and testament are James Milligan, as afore mentioned ; Charles Simms, of the town of Alexandria, in the county of Fairfax, attorney-at-law ; Richard Taylor and-----------, of Jefferson county; William Elliot, of Westmoreland county, and state of Pennsylvania ; and Philip Ross, of the county of Washington, in the same state. John Campbell.” “ I, John Campbell, have this day erased the name of James Sullivan from the number of my executors, as he has destroyed, in my lifetime, the confidence which I would wish to repose in a. man that would, in my opinion, be worthy to act for me after my death. “April 5th, 1791. John Campbell.” In the circuit court of the district of Kentucky, the plaintiffs in error sued out a writ of right, on the 6th day of January 1830, and an alias writ of right, on the 3d day of June 1830, against John Rowan, the defendant in error, and claimed one hundred acres of the land near the mouth of Bear Grass ; Henry A. Beard as a citizen of the state of Ohio, and the other plaintiffs, as citizens of Missouri. The defendant in his plea claimed ninety-five acres of the premises in question, and disclaimed as to the residue ; put himself on the assize ; and prayed recognition to be made, whether he or the plaintiffs had the greater right to hold the premises so claimed by him. The cause came on for trial at the November term 1831, of the circuit court, and the following facts were agreed upon to be used on the trial. “The parties in this cause agree to the following facts, to wit: 1. That John Campbell was born in the kingdom of Ireland ; that he came to the United States of America, prior to the revolutionary war ; that he continued * , to reside in the said *United States, from the time of his migration thereto, until he departed this life, in the month of October 1799, in the county of Fayette, in the state of Kentucky, where he then resided ; that on the 25th day of July 1786, he made and duly published his last will and testament, bearing that date, with an indorsement thereon, dated the 5 th day of April 1791 ; that said will and indorsement were duly proved and recorded on the 13th day of January 1800, in the county court of the said county of Fayette ; and that the said John Campbell was seised in feesimple, at the time of his death, of the premises in question in this action, and that he died without ever having been married. “ 2. That Robert Campbell was born in the kingdom of Ireland ; that he migrated to the United States of America, before the revolutionary war 200 1835] of The united states. Beard v. Rowan. 306 between the United States of America and Great Britain ; that he continued to reside therein until his death, which happened in August 1805, near Louisville, in the county of Jefferson, in the state of Kentucky ; that he had resided in Kentucky many years before his death ; that he was a brother of the whole blood of the said John Campbell, and died intestate, and was never married. “ 3. That Allen Campbell was born in the kingdom of Ireland, and was about twenty-five or twenty-six years of age when he died ; that he migrated to the United Stated in the year 1796, and resided in the city of Philadelphia, until he came to the state of Kentucky, which was in the month of December 1799 ; that he resided in Kentucky from that time until the 16th day of September 1804, when he departed this life, intestate, and was never married. That he was a half-brother on the father^ side to the said John and Robert Campbell and Sarah Beard. “ 4. That Sarah Beard was born in the kingdom of Ireland, and migrated to the state of Kentucky in the year 1800, where she continued to reside until October 1806, when she departed this life ; that she was a sister of the whole blood to the said John and Robert Campbell, and sister of the half-blood to the said Allen Campbell, on the side of the father ; that she was a widow, when she came to Kentucky, and continued to be a widow until her death ; that at her death, she had three surviving children, to wit, William Beard, Joseph Beard and Elizabeth Megowan, all of whom were born in *Ireland ; that the said William Beard came to the United States in the 1790, and was never naturalized, and departed this life in L the year 1813; that he was married and had two children, issue of said marriage, at the death of said John Campbell, to wit, Nancy C. Beard and Sarah Beard, who were his only children at that time ; that said Nancy C. Beard intermarried with Robert Bywaters, and is still living ; and Sarah Beard intermarried with Hankerson Bywaters, and is still living, that_the mother of the said Nancy and Sarah departed this life, and the said William Beard married a second time, and had the following issue of said marriage, to wit, William A. Beard, Catharine Beard, Mary Beard, John Beard, Charles Beard and Joseph Beard, all of whom were born since the death of the said John Campbell; that the said Catharine Beard has intermarried with, and is now the wife of, Henry H. Shepard j that the said Mary Beard has intermarried with, and is now the wife of, Lewis Hawkins ; that the said Charles Beard departed this life in March 1831, an infant, and childless; that the said John, Charles and Joseph Beard were born since the death of the said Sarah Beard ; that the said Joseph Beard and Elizabeth Megowan, children of the said Sarah Beard, came with her to Kentucky, and are still living; that the following are the children of the said last-named Joseph eard, to wit, Henry Beard, Ann Daley wife of Lawrence Daley, Isabella McLear wife of Charles McLear, Sarah McLear wife of Francis McLear, and Joseph Beard, jun. ‘ 5. That the said John Campbell, Robert Campbell, Allen Campbell an Sarah Beard were the only surviving children of Allen Campbell, the e ei, who departed this life, in Ireland, before the said John Campbell. 6 . That Charles Simms and Richard Taylor survived the other trustees an executors of John Campbell; that said Simms departed this life, in the istnct of Columbia, about the year 1825 or 1826, never having been in 201 307 SUPREME COURT [Jan’y Beard v. Rowan. the state of Kentucky; that neither of the other trustees, except Taylor and Sullivan, were ever in the state of Kentucky, after the death of said John Campbell; that said Taylor resided therein, at the death of Campbell, and so continued until his death, which happened in the year 1828 or 1829; and that said Taylor alone qualified as executor of said John Campbell, in Kentucky. That sa^ defendants were possessed of the premises in J contest in this action, at the time of the service of the process on them in this case, and are now in possession thereof, and also were in possession of said premises, before and on the 21st day of April 1826. " The parties aforesaid do further agree, that it shall be competent for either of them to introduce evidence, either written or parol, to establish any facts not herein and hereby agreed to and admitted, which they or either of them may deem necessary and within the issue.” The demandants made title under the will of John Campbell, and under a deed, executed on the 21st of April 1826, by Richard Taylor, as executor of the last will and testament, and trustee of the estate of John Campbell, to Joseph Beard, Elizabeth Megowan, and the heirs of William Beard, the material parts of which instrument were the following : “ The said John Campbell did, by his last will and testament, duly made and published, on the 25th day of July 1786, devise to James Milligan, Charles Simms, Richard Taylor, William Elliot and Philip Ross, and the survivors and survivor of them, whom he did thereby appoint executors of his last will and testament, all his estate, both real and personal, in trust for certain uses and intents therein mentioned ; and whereas, all the said executors and trustees have renounced the execution of said will, except Richard Taylor, the first party to these presents ; and whereas, the said John Campbel], deceased, did, by his last will and testament, provide, that all his real estate in the county of Jefferson aforesaid, within five miles of the mouth of BeaY Grass creek, should be conveyed to his half-brother, Allen Campbell, so soon as he became a citizen of the United States, or should be otherwise qualified to hold real estate ; or that, in either event happening, the said Allen Campbell should, without a deed from the trustees or trustee of said John Campbell’s will, have the disposal of said real estate, within the limits aforesaid; and whereas, the said Allen Campbell died in 1804, without having disposed of certain parts of said real estate, in any way, and without having ever received a title to said real estate, by which it again reverted to the estate of said Campbell, and became subject to t e devises in his will, as to so much thereof as was undisposed of by sai * , Campbell, during his lifetime. *And whereas, the said Richar Taylor, sole executor and trustee as aforesaid, in consideration of t e premises, is willing to convey the propert yaforesaid, except so much thereo as he hath this day conveyed, in a separate deed to same parties, to t e heirs of Sarah Beard, deceased, as directed in the said last will and tes a ment of the said John Campbell, as will more fully appear, reference had thereto. Now, therefore, in consideration of the premises, an the further consideration of one dollar to him in hand paid, the rece^ whereof he doth hereby acknowledge, the said Richard Taylor, as execu and trustee as aforesaid, hath granted, bargained, sold, aliened an cw firmed, and by these presents doth grant, bargain, sell, alien and con r , 202 183^ OF THE UNITED STATES. 309 Beard v. Rowan. to the said parties of the said second part, excepting from the heirs of William Beard, Nancy C. and Sally Bywaters, who have already sold and disposed of all their right, title and interest in and to the same, a certain tract or parcel of land, lying and being in the county of Jefferson, on the Ohio river, adjoining the town of Louisville, containing, by estimation, three thousand acres, be the same more or less; one thousand acres of which, being the one-half of two thousand acres, patented by the king of Great Britain to John Connolly, by patent bearing date the 16th day of September UiS ; the other two thousand patented to Charles D. Warnsdoff, the patent bearing the date the day and year last mentioned, and bounded as described in the said patents, as will more fully appear on reference being had thereto. Also, all the unsold lots in the town of Louisville, consisting of twenty acre lots, five acre lots, half-acre lots, and other lots and parcels of ground, deeded to Colonel John Campbell; also, all the island in the said river Ohio, near the said town of Louisville, lately in the possession of Allen Campbell; also, all the ground and ferry at the lower landing in Shippingport, together with all and singular the premises and appurtenances thereunto belonging, or in any wise appertaining ; and all the estate, right, title, interest or claim of him, the said Richard Taylor, of, in or to the same—to have and to hold the said land, lots, island, ferry and all and singular the appurtenances, to the said party of the second part, their heirs and assigns for ever. And the said Richard Taylor, for himself, his heirs, administrators and assigns, the said estate above conveyed, to the said parties of *the ri! second part, will for ever defend against the claim or claims of all L and every person claiming by or through him.’, And also, under a deed, executed by Joseph Beard and others, of which the following is a copy. “This indenture, entered into this 5th day of April 1826, between Joseph Beard, of the one part, and Henry Beard, Lawrence Daley and Ann his wife, Francis McLear and Sarah his wife, Charles McLear and Isabella his wife, and Joseph M. Beard, witnesseth, that, for and in consideration of the natural love and affection which the said party of the first part bears towards his children, the parties of the second part, and for the further consideration of one dollar in hand paid to him by the said parties of the second, he doth hereby give, alien, sell, convey and assign to the said parties of the second part, all his right, title, claim and interest, in and to the estate of Colonel John Campbell, deceased, in the counties of Jefferson and Shelby, in the state aforesaid, for which suits are about to be commenced by the heirs of said Campbell, of which said Joseph is one, for and in consideration of which the parties of the second part hereby bind themselves to pay that part of the expenses of said suits which will fall on said Joseph in the prosecution thereof.” The title of the tenant, the defendant in error, was derived under the will of John Campbell, and under the following conveyances : A deed- from Sarah Beard, the sister of John Campbell, the testator, to Fortunatus Cosby, executed on the 7th of July 1806 ; and other mesne conveyances, the last of which was from William Lytle to the tenant and defendant, executed on the 17th of February 1822. In January or February 1800, Allen Campbell was put into possession of e whole landed estate of John Campbell, devised to him, and which was 203 310 SUPREME COURT Beard v. Rowan. [jan’y within five miles of the mouth of Bear Grass, by Richard Taylor, one of the executors of John Campbell’s will. When the lands were surrendered to him, and he was put into possession of the same, it was as the owner and proprietor thereof, in fee, as devisee under the will of his half-brother, John Campbell. He continued to occupy the same until his death, claiming it as his own, and occasionally selling various parts thereof. After the death of Robert Campbell, Sarah Beard, as the heir of Allen Campbell as to * *one moiety, and heir of Robert Campbell of another moiety, J claimed the whole estate. On the trial in the circuit court, the demandants prayed the court to instruct the jury, that unless they find from the evidence, that the surviving trustees of Colonel Campbell’s will conveyed by deed the land in contest, to Allen Campbell, that the law was for the demandants. That, unless they found from the evidence, that Allen Campbell was naturalized according to the laws of the United States, the law was with the demandants. That from the facts agreed, and the evidence offered, the law was for the demandants, and they ought to find accordingly. The court refused to give the instructions as prayed ; and the defendant moved the following instructions to the jury, which were given. That the premises in question passed in fee to Allen Campbell, the half -brother of John Campbell, under his will, and at the death of said Allen, passed by descent, from him, to Robert Campbell and Sarah Beard, and then from him to her; provided the jury believed from the evidence, 1st. That said John Campbell was a citizen of the United States, and died in October 1789, and had never been married. 2d. That said Allen Campbell came to the state of Kentucky, in December 1799, and continued to reside there until September 1804, and then died intestate, and had never been married. 3d. That said Robert Campbell was a citizen of the United States, and halfbrother of the said Allen ; that said Sarah Beard was half-sister of said Allen ; and came to Kentucky in October 1800, and continued to reside therein until the death of said Allen ; that said Robert Campbell died in August 1805, intestate, and had never been married ; and that said Sarah Beard was the sister of the said Robert Campbell. The jury found the following verdict, on which the court gave a judgment for the defendant. “ We, the jury, find that the tenant has more right to hold the tenement as he now holds it, in the written count mentioned, than the demandants to have it, as they now demand it.” The plaintiffs took a bill of exceptions, and sued out this writ of error. *2191 The case was argued by Peters, with whom was * Loughborough, J for the plaintiffs in error; and by Sardin and Sergeant, for the defendant. For the plaintiffs in error, it was contended :—1. That the title to the land in controversy passed by the will of John Campbell, in fee, to the trustees, and the survivors of them, named in said will, and so remained until the deed of R. Taylor, trustee to Beard, was made. 2. That at the making of the said deed, the title to so much of the said land devised by J. Campbell, as had not been disposed of by Allen Campbell, was in layloi, the surviving trustee. 3. That the said deed of Taylor, trustee to Bear and others, was in due performance of the trust created by the will, an 204 1835] OF THE UNITED STATES. Beard v< Rowan. 312 that the title of J. Campbell passed by it to the grantees. 4. That the circuit court erred in not giving the instructions moved by the demandants. 5. That it erred in giving those moved by the tenant. For the defendant, it was contended :—1. That, taking the whole will of John Campbell together, it is evident and manifest, that all his landed estate, within five miles of Bear Grass, was intended for Allen Campbell ; and to save it from forfeiture, as he was an alien when he made his will and codicil, he invested it in trustees. 2. That Allen Campbell became qualified, under the statutes of Kentucky, to take and hold real estate, accepted the devise, claimed the land in dispute, lived on it, used it, and sold part of it. 3. The consent of the executor was not necessary to perfect the title of Allen Campbell, and if it was, the executor did consent. 4. As soon as Allen Campbell became qualified to take and hold real estate in Kentucky, as he did on the 18th of December 1802, that instant he became vested with the title, in fee, as an executory devise, without a deed. 5. If Allen Campbell took the property as an executory devise, or by a release from the trustees ; then, on his death, Robert Campbell and Sarah Beard inherited each a moiety, and when Robert Campbell died in 1805, Sarah Beard became *seised of the whole fee, and conveyed it to Fortunatus Cosby, in 1806. 6. The title of the demandants is defective, because it is derived under a deed from Richard Taylor, who was not a trustee under the will of John Campbell, but was an executor. 7. When the conveyance was made by Taylor, the defendant was in adverse possession of the land. 8. The demandants cannot recover in a writ of right. Some of them have, on their own showing, no title at all : and if others have a title, it is not a joint title with some of the demandants ; and other persons, if any of the demandants have title, who also have title, are omitted in the suit, although they are joint-tenants with the demandants in the writ; and a joint-tenant cannot recover his interest, unless all his co-joint-tenants are joined in the writ. 9. In a writ of right, the demandant may recover less than what he counts for, but it is less as to the quantity and not different in the nature of his title ; for if he could, then the rule that the proof must agree with the statement, would be defeated ; which would not be the case, when he recovered less in quantity : this is the distinction in almost every form of action. Thompson, Justice, delivered the opinion of the court.—This cause comes up on a writ of error from the circuit court of the United States for the district of Kentucky. It is a writ of right, for the recovery of a piece or tract of land, the title to which is admitted to have been duly and legally vested in John Campbell. Both parties claim under the will of John Camp-e I, as the source of title. The demandants claim under a deed from ichard Taylor, the surviving executor of John Campbell, bearing date the 1826, to Joseph Beard, Elizabeth Megowan and the heirs of i lam Beard. The tenant claims under a devise in the will of John mpbell; and the decision of the case depends mainly upon the construction to be given to this devise. The evidence in the cause being closed, each of the parties moved the cou or instructions to the jury. The demandants prayed the court to 205 314 SUPREME COURT Beard v. Rowan. [Jan’y instruct the jury, that unless they find from the evidence, that the surviving t trustee of Colonel Campbell’s *will conveyed by deed the land in J contest to Allen Campbell, the law is for the demandants. That unless they find, from the evidence, that Allen Campbell was naturalized according to the laws of the United States, that the law is with the demandants. That from the facts agreed, and the evidence offered, the law is for the demandants, and that they ought to find accordingly. These instructions the court refused to give ; but, on the prayer of the tenant, gave the following instructions : That the premises in question passed in fee to Allen Campbell, the halfbrother of John Campbell, under the will ; and at the death of the said Allen, passed by descent from him to Robert Campbell and Sarah Beard ; and from him, Robert Campbell, to her, Sarah Beard : provided the jury believed—1. That John Campbell was a citizen of the United States, and died in October 1799, and had never been married. 2. That thé said Allen Campbell came to the state of Kentucky in December 1799, and continued to reside therein, until September 1804, and then died intestate, and had never been married. 3. That the said Robert Campbell was a citizen of the United States, and half-brother of the said Allen ; that Sarah Beard was half-sister of the said Allen, and came to Kentucky in October 1800, and continued to reside therein until the death of the said Allen ; that the said Robert Campbell died in August 1805, intestate, and had never been married ; and that the said Sarah Beard was the sister of the said Robert Campbell. The material facts in this case are not at all drawn in question. They are agreed upon by a stipulation contained in the record. And we must at all events assume, for the purpose of the present decision, that the jury have found all the facts, hypothetically put by the court in the instruction given to them ; and upon the assumption of which the court instructed the jury, that in point of law, the demandants were not entitled to recover : and whether this instruction was correct, is the question now before this court. Upon the argument here, several objections have been made to the right of the demandants to recover in this action, claiming, as they do, different titles, which cannot, as is alleged, be set up under a joint action in this mat-* - ter. This, however,, is *rather matter of form ; and as the case is before us on the merits, and has been fully argued, we pass by this objection, without stopping to inquire whether it was well founded or not. The clause in the will of John C ampbell, upon which the right to the land in question depends, is as follows : “ And if, within that time, my said half-brother, Allen Campbell, shall become a citizen of the Unite States, or be otherwise qualified by law to take and hold real estate wit m the same, I then direct that my said trustees, or the survivor or survivors o them, shall convey to him, my said half-brother, Allen Campbell, his sirs or assigns, in fee-simple, all the lands herein before described in this devise. But if my said half-brother shall not, within the time aforesaid, become a citizen as aforesaid, I then direct that my said trustees, or the survivor or survivors of them, shall sell and dispose of the said lands, hereby direc e to be conveyed to him, on two years’ credit; with interest from the a^e’ be paid annually. And the money and interest arising from sue sa ’ to be transmitted to my said half-brother, to whom I give and bequea 206 1835] OF THE UNITED STATES. 315 Beard v. Rowan. same.” The testator then provides for the disposition of these lands, and the proceeds thereof, in case his said half-brother shall die before the expiration of the aforesaid term of five years after his arrival at the age of twenty-one years ; and then adds the following clause : “ But should my said half-brother become a citizen of the United States of America, or be otherwise qualified to hold real estate within the same, before his death ; it is then my will and desire, that he shall have the sole absolute disposal of all the estate herein-before devised and bequeathed to him, notwithstanding he may not have obtained deeds therefor from my said trustees.” It is contended on the part of the demandants, that undei- this will, the legal estate of the land in question is vested in the executors and trustees ; and that Allen Campbell did not take any legal estate under the will, and could not acquire it, except by deed from the trustees or the survivor of them. And they contend, that Richard Taylor was such survivor; and they claim under the deed from him of the 21st of April 1826. But if Richard Taylor had no authority to convey this land, the demandants fail entirely to show any title whatever in the *land. His authority to convey the land, lies at the foundation of the right set up by them. L Richard Taylor is not named as one of the trustees. The trustees named are, James Milligan, Charles Simms, William Elliot and Philip Ross; who are also appointed executors; and to whom the testator devises his estate, both real and personal, in trust for the uses and purposes provided and declared in his will. It is true, that he afterwards, in a codicil, names Richard Taylor as one of his executors. But the estate was vested in the other executors named, as trustees ; and Taylor, in his capacity merely as executor, acquired no title to the land, nor any authority to sell it. But it is unnecessary to rest the case upon this point, as it is very clear that, under the will of John Campbell, his half-brother, Allen Campbell, took an estate in fee-simple, as an executory devise, without any deed from the trustees. The intention of the testator in this respect cannot be mistaken. Allen Campbell was then an alien, and was not or might not be qualified to take and hold real estate. The title was accordingly vested in trustees, with directions to convey the same to him, when he should become qualified by law to take and hold the same. And if he should not, within a specified time, become qualified to take and hold real estate, his trustees are directed to sell the land, and transmit the avails thereof to the said Allen Campbell; thus providing for all supposed contingencies with respect to the situation of the devisee, and to enable him to receive the benefit of the devise. But that his right and title to this estate might not at all depend upon the trustees, he devises the land directly to the said Allen Campbell, if he should, at any time before his death, become a citizen of the United States, or be otherwise qualified to hold real estate ; notwithstanding, he may not have obtained deeds therefor from his said trustees. Ihis was a good executory devise, depending on the contingency of his ecoming a citizen of the United States, or otherwise qualified to hold real estate. The contingency was not too remote. It must necessarily, not only rom the nature of the contingency, but by express limitation in the devise, appen in the lifetime of the devisee, if ever. And upon the happening 0 this contingency, there can be no *doubt, but the devisee took an estate in fee. The words in the will are amply sufficient to pass an *- 207 317 SUPREME COURT [Jan’y Beard v. Rowan. estate in fee. And the only remaining inquiry is, whether Allen Campbell, before his death, became qualified to take and hold real estate, in the state of Kentucky. And this will depend upon the act of the legislature of that state, passed on 18th of December 1800, which is as follows : “ Whereas, by the laws now in force in this commonwealth, aliens cannot holds lands therein, and whereas, it is considered the true interest of this state, that such prohibitions be done away: be in therefore enacted, &c., that any alien, other than alien enemies, who shall have actually resided within this commonwealth two years, shall, during the continuance of his residence herein, after the said period, be enabled to hold, receive and pass any right, title or interest, to any lands or other estate, known within this commonwealth, in the same manner, and under the same regulations, as the citizens of his state may lawfully do.” 2 Littell’s Laws 400. The evidence in the record shows, and it is so found by the jury, that Allen Campbell came to the state of Kentucky, in December 1799, and continued to reside therein until September 1804, when he died intestate, never having been married. It is argued on the part of the demandants, that this law only embraces aliens who shall have resided within the state two years before the passing of the act; and does not, therefore, reach the case of Allen Campbell. This is certainly too narrow an interpretation of this law, to meet the obvious intention of the legislature ; even admitting that such is the strict grammatical construction. The preamble in the act may be resorted to, to aid in the construction of the enacting clause, when any ambiguity exists. That preamble evidently shows, that the intention of the legislature was to make a general provision for removing the disability of aliens to hold real estate, and this, founded upon state policy, doubtless, for the purpose of encouraging the settlement of the country ; and this object would be in a great measure defeated, by restricting the act to aliens who shall have resided two years in the state, before the passing of the act. The condition upon which aliens are placed on the same footing with citizens, with respect to the right of holding and *3181 disposing of land, is a two years’ residence within the state ; and the full effect and benefit of the act, and the clear intention of the legislature, require a construction which gives to it a prospective as well as retrospective application. And under this construction, Allen Campbell became qualified to take and hold the title to the land in question, and pass the same ; in the same manner as if he had been a citizen of the state. No constitutional objection can be made to this act. It does not profess to naturalize aliens. It is not necessary that they should be made citizens, in order to hold and pass real estate; and the condition upon which this may be done, is a matter resting entirely with the state legislature. We are, accordingly, unanimously of opinion, that the judgment of the circuit court is correct; and it is, accordingly, affirmed. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel: On consideration whereof, it is adjudged and ordered, that the judgment of the said circuit court in this cause be and the same is hereby affirmed, with costs. 208 1835] OF THE UNITED STATES. *31® ♦United States, Plaintiffs in error, v. William L. Robeson. Set-off against the government. An action was instituted on a treasury transcript, for the recovery of the balance stated to be due to the United States, by the defendant, as assistant deputy quartermaster-general; the defendant pleaded, as a set-off, a claim on the United States, which had been assigned to him by the owners of a schooner, for loss and demurrage of the schooner, chartered to the United States on a voyage from New Orleans to Appalachicola, with troops, &c.; this claim was presented to the proper officers of the government, and refused: Held, the defendant was not entitled to plead this as a set-off to the claim of the United States.1 The rule as to set-off, in questions arising exclusively under the laws of the United States, cannot be influenced by any local law or usage; the rule must be uniform in the different states; for it constitutes the law of the courts of the United States, in a matter which relates to the federal government. When a defendant has, in his own right, an equitable claim against the government, for services rendered or otherwise, and has presented it to the proper accounting officer of the government, who has refused to allow it, he may set up the claim as a credit, in a suit brought against him, for any balance of money claimed to be due by the government; and when the vouchers are not in the power of the defendant before the trial, or, from the peculiar circumstances of the case, a presentation of the claim to the treasury could not be required, the set-off may be submitted to the action of the jury. But a claim for unliquidated damages cannot be pleaded by way of set-off, in an action between individuals; and the same rule governs in an action brought by the government. Where the parties, in their contract, fix on a certain mode by which the amount to be paid shall be ascertained, the party that seeks an enforcement of the agreement must show that he has done everything on his part, which could be done, to carry it into effect; he cannot, compel the payment of the amount claimed, unless he procure the kind of evidence required by the contract; or show that,' by time or accident, he is unable to do so. Error to the District Court for the Eastern District of Louisiana. The United States, on the 10th of January 1822, instituted a suit, by petition, in the district court of the United States in Louisiana, against the defendant, William L. Robeson, late assistant deputy quartermaster-general in the army of the United States ; claiming to recover the sum of $2663.61, for the balance of his account, as such officer, as settled and examined, adjusted, admitted and certified at said department. *To this petition, and the citation issued thereon, the defendant r*»™ answered and pleaded, that the United States were indebted to him in the sum of $3000 for work, labor, attendance, &c., bestowed, by him, in and about the business of the United States, and for the United States, at their request; and for materials and necessary things by him, before the imeof action, bought, found and employed, in and about the said work and abor; for goods sold and delivered, and for money laid out and expended oi the United States, at their request; for money due and owing to him, th n-ere8t ^ereon J which sums of money exceeded the sum claimed by eUnited States from him ; and out of which sum, so claimed, he was wiling, and offered, to set off and allow to the United States the full amount of their claim. tv.?.11 same Jay this answer and plea were filed, the 21st January 1822, i lam L. Robeson filed an affidavit, sworn to and subscribed in open c°nr , stating that he was equitably entitled to credits which had been sub-c. C. 161d States Buchanan’ 8 83 ; s. c. Crabbe 563 ; United States v. Wells, 2 W. 9 Pet,—14 209 320 SUPREME COURT [Jan’y United States v. Robeson. mitted, previously to the commencement of the suit, to the accounting officers of the treasury and rejected ; that the credits were as follows, viz., the sum of $30, for transportation of officers to Baton Rouge and back to New Orleans, and an amount of $39, for transportation of officers from Pass Christianne to New Orleans. That a claim of $364.50, for transportation of contractors’ stores, taken from the wreck of the schooner Italian, and delivered at Appalachicola, in April 1818 ; a claim for demurrage at Mobile Point, of the schooner Experiment, in a voyage from New Orleans to Appalachicola, in 1818, to wit, $330, were presented to the quartermastergeneral’s department, and returned. Issue being joined, and the cause having been brought to trial, in December 1829, a verdict was found for the plaintiff for a less amount than the balance of the account stated at the treasury of the United States, the verdict being for $1656.11, instead of $2663.61. This difference resulted from allowances made by the jury, under the ruling and direction of the court, upon various points which arose at the trial; in respect to which, several bills of exception were filed by the counsel of the United States. The first bill of exceptions stated, that the defendant gave *in J evidence certain depositions to prove the amount of loss and damage claimed by Forsyth & Walton, and Breedlove, owners of a certain schooner, called the Experiment, to be due to them by the United States, together with an assignment by the said owners to the defendant, for the consideration of $500, of the whole of the amount so claimed by them under a charter of the Experiment to the defendant, as assistant deputy quartermaster-general, to proceed from New Orleans to Appalachicola with stores ; their claim being for the transportation, by the Experiment, of provisions and stores belonging to the United States, taken from the wreck of a schooner, and carried to Appalachicola, amounting to $364.50 ; for demurrage of the schooner, $330; and for the loss of a cable and anchor, $226.20, together $920.70. The plaintiffs prayed the court to instruct the jury, that the defendant could not set off against the demand of the United States, a greater sum than that expressed as the consideration of the transfer, viz., $500. The demurrage claimed was for detention of the schooner at Mobile Point; and he proved by the charter-party, the right of the charterers to the same, and his right under the assignment thereof ; and offered evidence of the detention of the vessel at Mobile Point. The plaintiffs prayed the court to instruct the jury, that evidence of a detention at Mobile Point could not sustain a claim for damage under the charter-party ; and that, under the pleading and treasury report, no set-off could be sustained for a detention at Mobile Point; but the court refused so to instruct, and to these refusals the plaintiffs excepted. The third bill of exceptions related to the assignment from the owners of the schooner Experiment, mentioned in the first bill. The plaintiffs objected to its admission in evidence, because it had been received by the defendant, after he had ceased to be in the employment of the United States, and because not offered as proof of payment of a debt due from the Unite States, but as evidence of the purchase of a claim against the United States, which could not be set off in this action. The court overruled these objec tions ; and the plaintiffs excepted. The other bills of exception are no inserted, as they were not noticed in the opinion of the court. 21Q 18351 OF THE UNITED STATES. *322 United States v. Robeson. *The case was submitted to the court, by Butler, Attorney-General, on a printed argument. No counsel appeared for the defendant in error. It was contended, that the judgment of the court below was erroneous, and ought to be reversed, for the following reasons. The several decisions of the court, in relation to the off-sets claimed by the defendant under the assignment from the owners of the Experiment, as specified in the first, third and fourth bills of exceptions, were erroneous. There is no act of congress defining, generally, the law of set-off. The third and fourth sections of the act of the 3d of March 1797 (1 U. S. Stat. 515), imply that persons sued as debtors at the treasury, might be entitled, in certain cases, to set off claims for credits rejected by the accounting officers, but they do not attempt to define the nature of those credits. They, however, impose the following restrictions on the right of set-off, that is to say : first, they require the defendant to make oath that, he is equitably entitled to credits which had been previously presented to and rejected by the accounting officer. And secondly, they forbid the allowance of any claims for credits except such as shall have been so presented and rejected ; unless the defendant shall be in possession of vouchers at the trial, not before in his power, &c. In all other respects, the laws and modes of proceeding on the subject of set-off in the state in which the trial is had, must, under the judicial and process acts, be observed as rules of decision ; “ except when the constitution, treaties, or statutes of the United States shall otherwise require or provide.” Judiciary Act of 1789, § 34. (1 U. S. Stat. 92.) The claim for detention at Mobile Point not being especially provided for in the charter-party, could not be sustained as a claim for demurrage ; it was a mere unliquidated claim for damages. Such a claim could not, under the law of Louisiana, be set off. Civil Code of 1808, p. 298, art. 191; Civil Code of 1825, p. 718, art. 2205 ; 7 Mart. 516. It is not pretended, that Robeson paid to the owners of the schooner the moneys he desired to set off, in the execution of his duty as disbursing officer. If they had been so paid, in good faith, and for valid claims, they might have been proper credits, because they related to the same general appropriation. Act of March 3d, 1809, § 1. (2 U. S. Stat. 535.) But the credit *claimed by the party is for an outstanding demand, bought up by this officer, L for a gross sum. The second and third sections of the act of the 3d March 1813 (Ibid. 816), by necessary implication, forbid any disbursing* officer to aPPty puplic money remaining in his hands to any such purpose ; and require the prompt payment to the treasury of all moneys remaining in his hands, except such as he may be authorized to retain for salary, pay or emolument. This attempt of the defendant is equally forbidden by the general law of principal and agent, as universally understood. An agent intrusted with moneys to be disbursed for his principal, will not be permitted to pay off is principal’s debts, without authority, or to purchase up claims against him, or the purpose of setting off such debts or claims, in an action against im for the moneys remaining in his hands. Middletown and Harrisburg turnpike Company v. Watson's Administratrix, 1 Rawle 330. The same principle is recognised in the law of Louisiana, Civil Code of 1808, p. 421, 211 323 SUPREME COURT [Jan’y United States v. Robeson. art. 19, 24, 26, 29 ; Civil Code of 1825, p. 938, art. 2974-84, p. 942, art. 2990-94. And without reference to the character of the defendant as an agent, the courts of Louisiana will not allow a defendant to set off money-paid by him on account of a debt due from the plaintiff to a third person, unless it be shown to have been made at plaintiff’s request. Roger's Heirs v. Bynum, 9 Mart. 82. It is unnecessary to enlarge on the injurious consequences which would probably follow the allowance, in cases of this nature, of the course adopted by the defendant. At all events, the defendant should only have been allowed to set off the amount actually paid by him; no rule being better established, or more important, in reference to all cases of a fiduciary nature, than that which denies to a trustee the benefit of any profit made in purchasing up claims against the trust estate. Van Horn v. Fonda, 5 Johns. Ch. 388. McLean, Justice, delivered the opinion of the court.—The plaintiffs brought their action against the defendant, in the district court of Louisiana, to recover a balance of public money which remained in his hands as late assistant deputy quartermaster-general. The pleadings being made up, the _ cause was submitted to a jury, who rendered a verdict for a *sum less by $1007, than the reported balance at the treasury department. This difference was produced by certain decisions of the court, on the trial, and to which exceptions were taken. And these exceptions are now brought before this court by a writ of error. In the first bill of exceptions, it appears, the defendant gave in evidence certain depositions, to prove the amount of loss and damage sustained by the owners of the schooner Experiment, on a voyage from New Orleans to Appalachicola, with troops and stores for the government of the United States ; and also a certain instrument referred to (margin A), by which instrument the owners of the said schooner Experiment transferred to the defendant their claims for compensation upon the United States, &c. And in the third bill of exceptions, the district-attorney prayed the court to instruct the jury, that the above claim could not be pleaded by the defendant as a set-off in this action, which prayer was refused. The first question which arises on these exceptions is, whether a claim which has been transferred to the defendant, forms a proper subject of setoff, under the acts of congress, to a demand of the government. If this question shall be decided in the negative, it will not be necessary to inquire whether the claim in itself constitutes a proper item of set-off. It seems to have been presented to the proper accounting officer of the government as a credit, and that he refused to allow it. This is a question which arises, exclusively, under the acts of congress, and no local law or usage can have any influence upon it. The rule as to set-off in such cases must be uniform in the different states ; for it constitutes the law of the courts of the Unite States, in a matter which relates to the federal government. Where a defendant has, in his own right, an equitable claim against t e government, for services rendered or otherwise, and has presented it to t e proper accounting officer of the government, who has refused to allow i j he may set up the claim as a credit, on a writ brought against him for any * .. balance of money claimed to be due by the government. And Y voucherg Were not in the power of the defendant, before t etna , 21? 1835] OF THE UNITED STATES. 325 United States v. Robeson. or, from the peculiar circumstances of the case, a presentation of the claim to the treasury could not be required, the set-off may be submitted for the action of the jury. But a claim for unliquidated damages cannot be pleaded by way of a set-off, in an action between individuals ; and the same rule governs in an action brought by the government. There is no law of congress which authorizes the assignment of claims on the United States ; and it is presumed, that if such assignment is sanctioned by the treasury department, it is only viewed as an authority to receive the money, and not as vesting in the assignee a legal right. But whatever may be the usage of the treasury department on this subject, it is clear, that such an assignment, as between individuals, on common-law principles, cannot be regarded as transferring to the assignee a right to bring an action at law, on the account, in his own name ; or to plead it, by way of set-off, to an action brought against him, either by an individual or the government. The claim set up by the defendant as a set-off in this case, may have been fairly obtained ; and, indeed, such is the presumption, in the absence of all evidence going to impeach the assignment or the consideration on which it was made ; but the assignee, not holding the legal right, cannot assert the claim, as a set-off, in this action. If any individual who holds in his hands public money, could defend himself against an action brought by the government, by purchasing claims against it, he might speculate on such claims to almost any extent. This practice would be as impolitic for the government, as it would be injurious to individuals. The practice of the state courts, which has been adopted under the act of congress of 1824, for the courts of the United States in Louisiana, cannot affect the point under consideration. For if it were made to appear, that under the laws of that state, an open account is assignable, so as to enable the assignee to bring an action in his own name, or to plead the account by way of set-off, it could not be done in the present case. The principles involved in this case are connected with the fiscal action of the government,1 and they cannot depend either upon the local practice or law of any state. *The second bill of exceptions states, that, “ on the trial of this cause, a certain charter-party or instrument, (marked B, &c.) and by *-which the steamboat Tennessee was chartered for the conveyance of a detachment of troops under the command of Colonel Arbuckle, was offered m evidence ; that by said charter-party, it was agreed, that if a largei-quantity of baggage and stores should be carried in said boat than was stipulated in said charter-party, that freight should be paid on the same, on the production of the certificate of the said commanding officer, Colonel Arbuckle. The defendant offered in evidence the deposition of witnesses, to prove the carrying, by the said steamboat Tennessee, of a greater quantity o baggage and stores than that stipulated in the charter-party; to the introduction of which testimony the district-attorney objected ; because, un er the terms of the said charter-party, no other evidence than the certi-cate of the said Colonel Arbuckle could be received to establish the claim o surplus freight; but the court overruled the objection, and admitted the evidence.” 1 Watkins v. United States, 9 Wall. 765; Hall v. Un ited States, 91 U. S. 662. 213 326 SUPREME COURT United States v. Robeson. [ Jan’y In the charter-party, it is agreed, that Breedlove, Bradford & Robeson should transport, unavoidable accidents excepted, a part of the seventh regiment of infantry, under the command of Colonel M. Arbuckle, and their baggage, together with a quantity of stores, not to exceed the bulk of eight hundred barrels, to the port of Arkansas, &c. “ For the true and faithful performance of the above, certificates of which to be given by Colonel M. Arbuckle, or officer commanding, the party of the second part binds himself, as agent of the United States to pay,” &c. And on the charter-party is indorsed, “It is understood, that, for all stores, &c., above the quantity specified, the same rate shall be paid, upon producing duplicate specified certificates of the commanding officer.” The following certificate of Colonel Arbuckle was indorsed on the charter-party. “ I certify, that Captain A. B. Bradford did, in compliance with the foregoing agreement, transport from New Orleans to this place, a part of the seventh regiment of infantry, amounting to one hundred and ninety-nine, with a suitable number of officers, and their baggage ; and that he did also transport thirty men of the seventh regiment, not belonging to the Arkansas command, from New Orleans to # , the *mouth of Red river. The boat was detained at Baton Rouge 32 J about nine hours, and at the mouth of Red river, about twenty hours. Captain Bradford furnished, for the use of the troops, six cords of wood, for which he is entitled to compensation.” As it appears in the record, that payment has been made for the services covered by the above certificate, the evidence which was admitted to be given to the jury, it is presumed, must have been to show the transportation of freight or men, in addition to that which is certified by Colonel Arbuckle. And the question as to the legality of this evidence is raised. It appears, that the agent of the government expressly stipulated to pay the money under the contract, on the certificate of Colonel Arbuckle, or the officer commanding the party. And for any additional services, to those provided for in the contract, payment was to be made at the same rate, “ upon producing duplicate specified certificates of the commanding officer. It does not appear, that any excuse was offered why these certificates were not procured ; and the question is, whether the claimant, at his option, can establish his claim by other evidence. The contract is a law between t e parties in this respect; as they expressly agree, that the amount of t e service shall be established by the certificates of the commanding officer. Can it be established in any other manner, without showing the imprac ticability of obtaining the certificates ? Is not this part of the contract as obligatory as any other part of it; and if so, is not the obtaining of t e cer tificate a condition precedent to the payment of the money ? Where the parties, in their contract, fix on a certain mode by w ic ® amount to be paid shall be ascertained, as in the present case, the party seeks an enforcement of the agreement must show that he has done every, thing on his part, which could be done, to carry it into effect. compel the payment of the amount claimed, unless he shall procure t ® 1 of evidence required by the contract, or show that by time or acci en e unable to do so. And as this was done by the defendant in the is court, no evidence to prove the service, other than the certificates, s have been admitted by the court. Had the defendant prove’ 3281 application bad been made *to the commanding officer for e p p 214 1835] OF THE UNITED STATES. 328 Beers v. Haughton. certificates, and that he refused to give them ; it would have been proper to receive other evidence to establish the claim. Other exceptions were taken to the rulings of the court in the course of the trial, but as they relate to the assigned claim set up by the defendant, it cannot be necessary to consider them. On the grounds that the district court permitted the assigned account to he given in evidence by the defendant, as a set-off ; and allowed, under the circumstances stated, other evidence than the certificates of the commanding officer to prove the transportation account; the judgment below must be reversed, and the cause remanded for further proceedings. Judgment reversed. * Joseph D. Beers, William L. Booth and Isaac R. St. John, [*329 Plaintiffs in error, v. Richard Haughton. Special bail.—Insolvency of principal. In June 1830, Beers and others brought an action of assumpsit, in the circuit court of Ohio, against J. Harris and C. Harris, and obtained judgment against them for $2818 and costs, at December term; Haughton became special bail in this action, by recognising, viz., that the defendants in the action should pay and satisfy the judgment recovered against them, or render themselves to the custody of the marshal of the district of Ohio; in October 1831, a writ of capias ad satisfaciendum was issued upon the judgment, and returned to December term 1831; that the Harris’s were not found ; in February 1831, 0. Harris was discharged from imprisonment for all his debts, under the insolvent law of Ohio; J. Harris was in like manner discharged in February 1832. In December 1832, Beers et al. commenced an action of debt, on the recognisance of bail, against Haughton; the defendant pleaded the discharge of J. & 0. Harris under the insolvent law of Ohio of 1831, and a rule of the circuit court, adopted at December term 1831. The rule of court was as follows : “ If the defendant on a capias does not give sufficient appearance bail, he shall be committed to prison, to remain until discharged by due course of law; but under neither mesne nor final process shall any individual be kept in prison, who, under the insolvent law of the state, has, for such demand, been released from imprisonment.” The plaintiffs demurred to the plea ; and upon joinder in demurrer, the circuit court gave judgment for the defendant. The judgment of the circuit court was affirmed. The recognisance of special bail being a part of proceedings on a suit, and subject to the regulation of the court, the nature, extent and limitations of the responsibility created thereby, are to be decided, not by a mere examination of the terms of the instrument, but by a reference to the known rules of the court, and the principles of law applicable thereto ; whatever, in the sense of these rules and principles, will constitute a discharge of the liability of the special bail, must be deemed included within the purview of the instrument, as much as if it were expressly stated. By the rules of the circuit court of Ohio, adopted as early as January 1808, the liability of special bail was provided for and limited ; and it was declared, that special bail may surrender their principal, at any time before or after judgment against the principal, provided such surrender shall be before a return of a scire facias executed, or a second scire facias returned nihil” against the bail; and this, in fact constituted a part of the law of Ohio, at the time the present recognisance was given; the same having been so enacted by the legislature. This act of the legislature of Ohio was in force at the time of the passage of the act of congress of the 19th of May 1828, regulating the process of the courts of the United States, in the new states, and must, therefore, be deemed a part of the “ modes of proceeding in suits,” and to ave been adopted by it, so that the surrender of the principal *within the time thus pre-scribed, is not a mere matter of favor of the court, but is strictly a matter of a legal _ right. J t is not strictly true, that on the return of “ non est inventus ” to a capias ad satisfaciendum against the principal, the bail is “ fixed,” in courts, acting professedly under the common law, an independently of statute; so much are the proceedings against bail deemed a matter sub- 215 ¿50 SUPREME COURT [hn’y Beers v. Haughton. ject to the regulation and practice of the court, that the court will not hesitate to relieve them in a summary manner, and direct an exoneretur to be entered, in cases, by the indulgence of the court, by giving them time to render the principal, until the appearance day of the last scire facias against them, as in cases of strict right. When bail is entitled to be discharged, ex debito justitice, they may not only apply for an exoneretur by way of summary proceeding, but they may plead the matter as bar to a suit, in their defence ; but when the discharge is matter of indulgence only, the application is to the discretion of the court; and an exoneretur cannot by insisted on, except by way of motion. When the party is, by the practice of the court, entitled to an exoneretur, without a positive surrender of the principal, according to the terms of the recognisance; he is, d fortiori, entitled to insist on it by way of defence, when he is entitled, ex debito justitice, to surrender the principal. The doctrine is fully established, that where the principal would be clearly entitled to an immediate and unconditional discharge, if he had been surrendered, there the bail are entitled to relief, by entering an exoneretur, without any surrender. And d fortiori, this doctrine will apply, when the law prohibits the party from being imprisoned at all, or when, by the positive operation of law, a surrender is prevented. There is no doubt, that the legislature of Ohio possessed full constitutional authority to pass laws whereby insolvent debtors should be released or protected from arrest or imprisonment of their persons, on any action for any debt or demand due by them; the right to imprison constitutes no part of the contract; and a discharge of the person of the party from imprisonment, does not impair the obligation of the contract, but leaves it in full force against his property and effects. State laws cannot control the exercise of the powers of the national government, nor in any manner limit or affect the operation of the process or proceedings in the national courts; the whole efficacy of such laws in the courts of the United States, depends upon the enactments of congress. So far as they are adopted by congress, they are obligatory; beyond this, they have no controlling influence; congress may adopt such state laws, directly, by substantive enactments; or they may confide the authority to adopt them, to the courts of the United States. Under the authority conferred on the courts of the United States, by the acts of 1789 and 1792 there would be no solid objection to the decision of the circuit court of Ohio, in this case, but it is directly within, and governed by, the process act of the 19th of May 1828.1 The progress act of 1798 expressly adopts the mesne process, and modes of proceeding in suits at common law, then existing in the highest state court, under the state laws; which, of course, included all the regulations of the state laws as to bail, and exemptions of the party from arrest and imprisonment; in regard, also, to writs of execution, and other final process, and “thepro-# _ ceedings thereuponit adopts an equally comprehensive language, and declares they J shall be the same as were then used in the courts of the state. The rule of the circuit court is in perfect coincidence with the state laws existing in 1828; and if it were not, the circuit court had authority, by the very provisions of the act of 1820, to make such a rule, as a regulation of the proceedings upon final process, so as to conform the same to those laws of the state on the same subject. Sturges v. Crowninshield, 4 Wheat. 200; Mason v. Haile, 12 Ibid. 370; Wayman v. Southard, 10 Ibid. 1 ; United States Bank v. Halstead, Ibid. 51, cited, Beers v. Haughton, 1 McLean 226, affirmed. Error to the Circuit Court of Ohio. On the 14th of June 1830, the plaintiffs, citizens and residents of the state of New York, commenced their action of assumpsit, in the United States circuit court for the district of Ohio, against Joseph Harris and Cornelius V. Harris, of the state of Ohio, and recovered judgment against them, at the December term 1830, for $2846.56. In this action against the Harris’s, the present defendant, Haughton, became their special bail. On the 12th day of October 1831, a writ of capias ad satisfaciendum was issued against the Harris’s, and returned to the December term of that year “ not found.” On the 24th day of December 1832, the plaintiffs commenced their present action against Haughton, 1 See Smith v. Cockerill, 6 Wall. 756. 216 l§35kJ OF THE UNITED SPATES. 331 Beers v. Haughton. upon his recognisance of bail, returnable to the 1st day of May, then next. A declaration was filed in the usual form, to which the defendant filed several pleas, and among others, the following, designated in the record as the 8th (the 4th, 5th, 6th and 7th being withdrawn), to wit: “ And the said defendant, for further’ plea in this behalf, says ” (actio non), “because, he says, that by the tenth rule of practice of this court, established and adopted by this court, at its December term 1831, which said rule has ever since been and now is in full force and effect, it is provided, that if a defendant upon a capias does not give sufficient appearance bail, he shall be committed to prison, to remain until discharged by due course of law. But under neither mesne nor final process, shall any individual be kept imprisoned, who, under the insolvent *law of the state, has for such demand, been released from imprisonment. And the •- 1 said defendant avers, that after the said debt became due, upon which the said judgment in the said declaration mentioned is founded, to wit, in February term, in the year 1831, the said Cornelius V. Harris being returned to the court of common pleas for Hamilton county, and state of Ohio, by the commissioner of insolvents of Hamilton county, and state of Ohio, as a resident of said county and state for more than two years next, preceding, as an applicant for the benefit of the act entitled an act for the relief of insolvent debtors, and having also returned a schedule in writing, delivered to said commissioner by said Cornelius V. Harris, of all debts by him owing, among which the said debt in the judgment in the said plaintiff’s declaration mentioned is founded, is named, did, at said February term of said court, personally appear before the judges of said court, in open court, and the said court then and there having full jurisdiction of such matters and such applications for relief, did, then and there, at the term last aforesaid, order and adjudge that the said Cornelius V. Harris should for ever after be protected from arrest or imprisonment for any civil action or debt or demand in the said schedule of his debts, so delivered to the said commissioner of insolvents for Hamilton county; which said order and judgment of said court is now in full force and virtue and unreversed, (a) And the said defendant further avers, that afterwards, to wit, in the term of February, in the year 1832, the commissioner of insolvents in and for Hamilton county, in the state of Ohio, returned the said Joseph Harris to the court of common pleas of said county, as a petitioner for the benefit of an act passed by the legislature of the state of Ohio, entitled ‘ an act for the relief of insolvent debtors,’ who, at the time of his application, was under arrest, and returned to said court a schedule delivered to him by the said Joseph Hams, showing the debts by him owing, and the names of his creditors, among which debts was the said judgment mentioned in the said plaintiff’s declaration, and the said Joseph Harris afterwards, in the term of ebruary, in the year 1832, appeared in said court of common pleas, ' efore the judges thereof, and filed his petition in said court, praying for e benefit of the act for the relief of insolvent debtors, and such other proceedings were had thereon, that the said court, at the term last aforesaid, (a) The act of the legislature of Ohio referred to, will be found in the 29th o ume of Ohio Statutes, 1831, p. 329, 340 ; there was a similar statute in existence pnor to the act of 1831. 217 333 SUPREME COURT [Jan’y Beers v. Haughton. ordered and adjudged, that the said Joseph Harris be discharged from arrest on account of the debts in said schedule mentioned, in pursuance of the statute in such case made and provided ; which said order and judgment is now in full force and virtue and unreversed. All which the said defendant is ready to verify ; wherefore, he prays judgment .if the said plaintiffs ought further to have and maintain their aforesaid action thereof against him,” &e. To this plea, the plaintiffs filed a general demurrer, in which the defendant joined. The circuit court overruled the demurrer, and gave judgment for the defendant, and the plaintiffs sued out this writ of error. The case was submitted to the court on printed arguments, by Alisha W. Chester, D. J. Caswell and Henry Starr, for the plaintiffs in error; and by Charles Fox, for the defendant. For the plaintiffs in error, it was argued :—The insolvent law of Ohio makes it the duty of the court of common pleas of each county to appoint an officer, denominated the commissioner of insolvents, and any person, being arrested upon civil process, either mesne or final, may require the arresting officer to take him before such commissioner, and upon making out a schedule of all the debts which he owes, and also of all his property, and assigning the same to the commissioner, for the benefit of his creditors, the commissioner gives him a certificate, which has the effect to release him from the present arrest, and from arrest for any of the debts contained in his schedule, until the same be acted upon by the court of common pleas of the county, where the arrest is made. This, discharge, however, can only be given upon his making oath that he has no other property than that contained in his schedule, &c. He may be examined under oath, touching $ his property *by the commissioner or any creditor. These proceed- ' ings are to be certified into the court of common pleas of the county, where the discharge is either consummated or the application dismissed. A person not under arrest, who has resided for a certain period in the state and county, may, by a like proceeding, exempt his person from arrest. The question presented for the consideration of the court, is, whether the facts set forth in this plea constitute a good bar to the plaintiff’s action. We maintain that they do not, and that upon the demurrer to the plea, the plaintiffs were entitled to judgment in the court below. Before proceeding with the argument, it may be proper to draw the attention of the court to the facts, that, as it appears from the declaration and plea, neither of the Harris’s was discharged by the court of common pleas, until after judgment was rendered against them in the circuit court; that Joseph Harris was not discharged until after the return of the ca. sa., and that the rule of court relied on in the plea, was adopted after the return of the ca. sa., and of course, after the plaintiff’s right of action had accrued. We hold, upon general principles, that an insolvent law of a state, providing a mode for the discharge of the persons of debtors from imprisonment, has no force, except in the courts of the state—is only a law affecting the remedy—the mere lex fori. It seems to us, that the very statement of this proposition is enough to secure it a ready assent. Between a bankrupt law and an insolvent law, a distinction has no unfrequently been made, defining the former as a law, by virtue of whic 218 1834] OF THE UNITED STATES. 334 Beers v. Haughton. the debtor is discharged, upon certain terms, from his contracts ; and the latter, as a law, by which, on similar terms, the person of the debtor is exempted from imprisonment. In relation to the rights of the several states to pass bankrupt laws, thus defined (no law of congress existing upon the subject), after much ligitation, and a thorough investigation of the subject, it has been settled by the supreme court : 1. That bankrupt laws may be passed by a state, affecting all contracts subsequently made within the state, between citizens of the state. 2. *That such laws cannot affect contracts, though made within the state, with a citizen of another L state. 3. That they cannot affect contracts not made, or not to be performed within the state. 3 Story’s Commentaries on the Constitution, 256. But as to the insolvent laws of the states, thus understood, we deny that they have any force in the courts of the Union. A bankrupt law reaches the contract—such an insolvent law only the person of the debtor. The one discharges the contract upon certain specified terms—the other, only the body. The one absolves the debtor from his debt—the other, leaving the debt in existence, declares that the creditor shall look only to the property of the debtor for satisfaction. The one acts upon and limits the effect of the contract—the other, the remedy for a breach of the contract. One is the lex loci contractus, the other the lex fori. By a bankrupt law, the contract is discharged, and cannot be enforced in any court or in any place. An insolvent law of this kind extends only to the courts, and the suitors in the courts, and the remedies by the courts of the government enacting the law. The right to pass insolvent laws of this description, is incident to the power of establishing courts of justice, and as respects the federal courts, it would not be necessary to derive it from the clause in the constitution authorizing congress to pass bankrupt laws. 2 Kent’s Com. 462. The laws of the states, vi propria, have'no other force and effect in the federal courts than the laws of a foreign country. They regulate, limit and control contracts and the titles to property, and give to the injured a right to satisfaction for wrongs done to their persons and property. The rights of parties arising out of any of these matters will be enforced in a foreign country, taking the laws of the state where the contract was made or to be performed, where the title was acquired, or the injury done, as the rule by which to ascertain the rights of parties litigant; but in the mode of redress and the remedy to be applied, the law of the country where the action is brought, the lex fori, must prevail. The law of the place where the right of action accrued, can in no manner control the court, nor absolve it from its own law in applying the remedy. *The courts of the United States, in relation to the laws of the r*3gg several states, stand, in these respects, in the same situation. Under e decisions of this court, a state may, as between its own citizens, provide a mode by which contracts, made after the passing of the law, and to be per ormed within the state, shall be discharged, without payment, provided no ankrupt law of the United States be in existence at the time. But in re ation to the effect of the discharge of the person of the debtor, the debt the law, so far as state adjudications go, has been well settled. ee 2 Cow. 626 ; 3 Mass. 84 ; 1 Dall. 188 ; 2 Johns. 198; 7 Ibid. 117 ; 11 219 336 SGPRLME COURT [Jai/y Beers v. Haughton. Ibid. 194 ; 14 Ibid. 346 ; 2 Cow. 632 ; Graham’s Practice 93-4; 8 Wheat. 253. Judge Johnson, in delivering the opinion of the court, in Ogden v. Saunders, said : “No one has ever imagined, that a prisoner in confinement, under process from the courts ot the United States, could avail himself of the insolvent laws of the state in which the court sits. And the reason is, that these laws are municipal and peculiar, and appertaining exclusively to the exercise of state power in the sphere in which it is sovereign ; that is, between its own citizens, between suitors subjected to state power exclusively, in their controversies between themselves.” 12 Wheat. 367; Wayman v. Southard, 10 Ibid. 1-51. Upon general principles, therefore, we consider it beyond question, that the insolvent laws of Ohio, and discharges under them, can have no effect, when urged in the courts of the United States. Has any act of congress given to them an effect which they would not have vi propria ? By the act of the 24th of September 1789, it is enacted, “that the laws of the several states, except where the constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, where they apply. This is a mere recognition of the principles of universal jurisprudence as to the operation of the local law, and cannot, therefore, affect *ooh-| the general principle contended for. Robinson *v. Campbell, 3 Wheat. J 221 ; United States v. Howland, 4 Ibid. 108 ; Wayman n. Southard, 10 Ibid. 1. The first section of the act of the 19th of May 1828, was passed, to regulate process, &c., in the courts of the United States, held in the states admitted into the Union since the 29th of September 1789. It provides, that the forms of mesne process, and the forms and modes of proceeding in suits in such courts, shall be the same in each of the said states, respectively, as were then used in the highest court of original and general jurisdiction of the same, subject to be altered by rules of court. By the third section of the same statute it is enacted, “ that writs of execution and other final process, issued on judgments and decrees rendered in any of the courts of the United States, and the proceedings thereon, shall be the same, except their style, in each state, respectively, as are now used in the courts of such state ; provided, however, that it shall be in the power of the courts, if they see fit, in their discretion, by rules of court, so far to alter final process in said courts, as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts.” This last section applies to all the courts of the United States, except those held in Louisiana, and is the only, part of the act that has any reference to final process. Does it reach the present case, or in any way affect the liability of the Harris’s to be arrested and imprisoned upon a ca. sa., or of the defendant, their bail, m the present action? We think not. It may be proper to observe, that in this act, the word process, throughout, is used in its limited, and not in the extended sense which has sometimes been given to it. In the first section, “mesne process ”is spoken as distinct from “the forms and inodes of proceeding,” and in the last section, the expression, “ writs of execution and other final process, and the proceedings thereon,” renders it certain that, by process, the legislature intended a writ, 220 1835] OF THE UNITED STATES. 337 Beers y. Haughton. or something analogous, and that it is contradistinguished from the proceedings to be had by virtue of a writ. Under this act, the plaintiff had a right to a capias ad respondendum against the Harris’s, and thereon was entitled to bail, as given ; for that was according to the forms of mesne *process, and to the forms and modes of proceeding in the court of Ohio. After judgment, he was L entitled to a capias ad satisfaciendum against them, for this is the same writ that was, in 1828, and at the time, used in Ohio. This right of the party, and the duty of the court or its officer to issue the writ, cannot be disputed. The right and duty existed before the passage of the act of congress of 1828, and is confirmed by it, so long as such writ is used in the state courts. But the very nature of this writ requires, that the party be arrested and detained ; this is its command, its object. If there be a right to issue it, it is obligatory upon the marshal to execute it, and there is but one way in which the command of the writ can be obeyed, to wit, by arresting the defendant. Subsequent proceedings.—the manner in which the defendant shall afterwards be dealt with ; the limits within which he shall be confined ; the nature of the walls within which he shall be inclosed, whether the walls of an actual prison, or the paper walls erected by the bond of a friend, may be regulated, by the statutes of the state adopted by this act of congress (had there existed no law of congress upon the subject of prison-bounds). Yet the defendant is obliged to maintain, that the proceedings which ought to be had in the case of the Harris’s, if they had been arrested., are nothing more nor less than instantly discharging them. This would not be a proceeding upon a capias ad satisfaciendum, but an annulling of the writ and all its efficacy. If they would have been entitled to such a discharge, it must be, because the arrest was wrongful and illegal, and could be for no other reason. If the arrest by the officer would be illegal, the issuing of the writ commanding the arrest must be illegal. And if it were illegal to issue the writ, then the plaintiff had not a right to a writ of execution used in the state courts, which the statute expressly gives him. We beg leave to present another view of this statute. If the defendant can claim any benefit from it, it is under that part of it which requires that the proceedings upon final proceedings upon final process shall be the same as used in the state courts. Does this enjoin upon the marshal, with a capias ad satisfaciendum in his hands, every duty, which, in the same circumstances, is enjoined upon the sheriff of the state by its laws ? If so, when *he makes an arrest of an individual, who, not having taken [ ;i. benefit of the insolvent law of the state, is desirous of doing so ; shall L he carry him before the state commissioner of insolvents, as the sheriff is required to do ? If so, the state commissioner takes the prisoner’s bond to appear where ? In the state court. He takes this schedule and certifies a his proceedings into the state court, and there the prisoner must appear, ere his discharge be consummated, or, his petition being dismissed, he may i remain liable to imprisonment upon the capias ad satisfaciendum. Here ere would be no difficulty, in a case arising in a state court. The sheriff emg of course present, would take the defendant immediately into custody, au commit him to jail. But the marshal of the United States not being ant86^’ Un^ess ^7 accident, his prisoner would go at large. Can a defend-an ? when thus arrested by the process issuing from the court of one govern- 821 339 SUPREME COURT [Jan’y Beers v. Haughton. ment, in the exercise of its legitimate jurisdiction, be thus turned over to another power, entirely disconnected with that which has the rightful jurisdiction of the case? This certainly would be something different from adopting the same mode of proceedings used in the state courts ; it would be transferring its own proceedings, its process, its jurisdiction over persons, to another tribunal with which it has no connection—it would be taking from a party a right secured to him by the constitution of the United States. There could be no such transfer of a prisoner’ and process, from the court of one goverment to that of another. Nor can the benefit of the state insolvent law be extended to a prisoner, under federal process, in any other way. No one could, for a moment, entertain any such idea; and we only mention it, to show, that proceedings to be had under the insolvent law of the state, are not such proceedings, upon either mesne or final process, as are adopted by the act of congress. Indeed, proceedings under the insolvent law of the state cannot be regarded as proceedings upon final process ; process, either mesne or final, is not necessary to exist, to entitle an applicant to the benefit of the act; though, when that benefit has been extended to him, it affects final process from the court of the state, in its operation upon him. But supposing that our reasoning is thus far unsatisfactory, there is 1 another argument which must set this matter at rest. *In relation J to the right of discharge from imprisonment, under final process from the courts of the United States, congress has left nothing to inference or implication. It has legislated directly upon the subject, has prescribed the cases in, and the mode by, which prisoners in execution may be discharged. The act referred to was passed in 1800, and is found in Gordon’s Dig. ph 2834-7. By this act, the district judge, or commissioner appointed by him, is authorized to administer an oath, prescribed in the statute, to the prisoner, and to discharge him from imprisonment; but notice must be served • on the opposite party, or his attorney, at least thirty days previous, if within one hundred miles, to show cause, on a given day, against the discharge. If any sufficient cause be shown, or appear from the examination, in the opinion of the judge or commissioner, the prisoner is not to be discharged. The legislature having thus prescribed the mode and the terms upon which prisoners, under process from the United States courts, shall be discharged, upon what principle is it contended, that they are entitled to a discharge, without complying with any of these terms—without pursuing, for a single step, that mode, and virtually by a tribunal different from that provided ; and one which, in the nature of our governments, can have no control over, or power in the matter ? It cannot be contended, that this act of 1800 is repealed by anything in the act of 1828. A repeal would not be inferred by this court from an act of that nature, and passed for the objects obviously aimed at by congress. Nor can it be supposed, that the legislature intended to confer upon the courts, the officer, or upon the prisoner, a powei to dispense with its minute provisions, and to be governed, at pleasure, by the law of the state in preference. It is too obvious, that congress coul never, in the act of 1828, have contemplated any such thing. But even if this act of 1800 were out of existence, we think there wou be in the way of the defendant another obstacle, which he could not surmount. Let it be admitted, that the federal courts are required to adopt t e 222 1835] OF THE UNITED STATES. 340 Beers v. Haughton, mode of proceeding upon final process, prescribed by the state legislature, in all the latitude that can be claimed, still they are not required to adopt the acts of the state *tribunal in a particular case. These acts are not made binding upon them, or upon the present plaintiffs. It is *-not so much the law of the state, that the defendant would avail himself of, as a particular adjudication of the state court. It is the discharge by the court, which he pleads. This act—this adjudication—this discharge, is not reached—is not in any manner contemplated or affected by the act of 1828. It is the law of the state, as it regulates process and the proceedings thereon, that is adopted. The judgments and adjudications of the state courts stand in the same situation, and have neither more nor less effect in the courts of the Union, than if this act had never been passed. And to make them binding upon the plaintiffs, and conclusive upon their rights, they must have been a party in the cause in which they were made—they must have been rightfully subject to the jurisdiction of the court; the state, in legislating, and the court, in adjudicating, must have possessed a power over them, to bind them by their acts. Such was never the fact; they were citizens of another’ state, suing upon a contract made and to be performed in another state, and in no respect whatever bound by the laws of Ohio, or amenable to her tribunals. The act of the court of common pleas of Hamilton county, therefore, could affect none of their rights, nor deprive them of any legal remedies for the violation of those rights. We think, then, upon general principles, and upon a review of the acts of congress supposed to bear upon the question, that an insolvent law of a state, providing a mode for the discharge of debtors from imprisonment, and discharges under such a law, do not confer upon them an exemption from any process used in the courts of any other state, or of the United States. If we have established this, the Harris’s were liable to arrest and imprisonment upon a capias ad satisfaciendum, and not having been found, their bail, the present defendant, is liable to pay the judgment recovered against them. Can the rights of the parties, as drawn in question in this case, be affected by any rule which it was competent for the. circuit court to establish ? Rules of court can never vary the mode of proceeding prescribed by statute, nor give a right of discharge in any other mode, or upon any other terms than those contained in it. *They are the only mode adopted by the court in administering the laws of the land ; they can never •-add to, diminish, nor vary the provisions of a statute. A recognisance of bail is a contract, the form of which may be prescribed by the court ; the obligation of the contract can only be discharged by law, never by the mere virtue of a rule of practice established by court; certainly, not by a rule, made after the execution of the bond or recognisance. The tenth rule of the circuit court for the district of Ohio, relied on by the defendant in this case, is in these words : “ But under neither mesne nor final process, shall any individual be1* kept imprisoned, who, under the insolvent law of the state, has, for such demand, been released from imprisonment.” One in prison only can be released from imprisonment. One who nas never been imprisoned on a debt, never can have been released from imprisonment for that debt, though he may have been absolved or released irom liability to imprisonment on account of it. If, in this case, the plaintiffs 223 j ■' I ( ‘I 342 SUPREME COURT [Jan’y Beers v. Haughton. had, in the state court, caused the Harris’s to be arrested and imprisoned for their debt, and they had been discharged by the court, to whose jurisdiction the plaintiffs voluntarily submitted their rights, there would have been an adjudication by a competent tribunal, and the circuit court might well refuse to suffer a second arrest for the same debt. We think the rule susceptible of this construction, and thus literally understood, we do not object to it. But, if it was intended to be understood as broadly as the defendant claims, we must, with all due respect to the circuit court, deny its competency to establish such a rule. If we are not mistaken, it has been attempted to derive the authority to establish such a rule, from the act of 1828. No such power is there given. The power given, is, so far to ajtei’ final process, by rules, as to conform it to any changes made in the state courts. If the authority existed at all, it must be derived from some other act of congress, or from the power inherent in a court. We know of no such conferred or inherent power. We think we have sufficiently shown before, that the state court or the state legislature could not confer on an individual, *by its insolvent law, -I an exemption from arrest in the federal courts ; that they had no power to release the Harris’s from the operation of any process used in the circuit court. Could such a power be granted by the circuit court? Surely not. Perhaps, it may be said, that it is not because of any force in’the discharge, of itself, by the state court, that a defendant can claim an exemption from arrest in the federal court, but because the federal court, in its comity to the state court, sees fit to take it as a reason for discharging him from its own process. This answer is certainly claiming for the federal court a very high prerogative power. A court pronounces the law; it declares, not who shall be imprisoned and who released, in civil causes, according to its own will and pleasure, but who is pronounced by the law to be a prisoner, or to be liable to imprisonment—enforces the law in its operation upon an individual, not in its arbitrary pleasure. We know not this thing, called comity, between courts, when our rights are involved and to be adjudicated. In making a rule of practice (and courts cannot create a rule of lawr) the first inquiry is, what is the law ; and what are the rights of persons conferred or secured by the law ; and this being ascertained, the province of rules of court is to fix the mode and form of enforcing the law. But what is claimed here for a rule of court ? Not that it is a form and mode of administering the law as it previously stood; but an overruling powei’ to suspend, to vary, to annul the law. Before this rule was established, the defendant had become bail for the Harris’s ; had entered into a contract, the force, effect and operation of which were settled and established by the laws of the land ; a capias ad satisfaciendum against them had been issued, and returned “ not found the legal effect of this return was also fixed by the law in existence, and rights were thereby acquired and then what is claimed ? Nothing less, than that the court, by some high power, exercised in the shape of a rule, can provide a mode, before unknown, y which this bail should be discharged from liability—this contract vacated— these vested rights wrested from the present plaintiffs ; we cannot argue against such an assumption, because the simple statement of it carries, 0 our mind, a stronger refutation than any argument. 224 1835] OF THE UNITED STATES. Beers v. Haughton. *344 *The point insisted upon by the defendant in the court below is, that, according to the law of the state, if the Harris’s had been arrested upon a capias ad satisfaciendum, issued from a state court, after their discharge under the insolvent law of the state, it would have been the duty of the sheriff, upon the production to him of their certificates of discharge, instantly to release them—in other words, that they were not liable to arrest by the state officer ; that as, by the act of the state legislature, this is the course of proceeding pointed out for the sheriff, so it must be the proper course to be adopted by the marshal, upon a similar writ from the United States court, for the proceeding on final process must be the same in the United States, as used in the state court. To this argument, we reply, as we have already said, that this would not be a proceeding upon the writ, but a forbearance to proceed upon, or execute it in any way, and that, for the reason that it does not lie against this particular person—that is not the “same” process which could be used against him in the state courts. The • matter, therefore, is not governed by that part of the law which requires “ the proceedings to be the same,” but by that part which requires “writs of execution to be the same as used in the state courts.” To our mind, it is clearly sufficient, that a capias ad satisfaciendum is a writ used in the state courts, and if it be such a writ, the adjudication of a state tribunal cannot restrain the use of it by the federal court against a particular person; no such efficacy is given by the act of congress of 1828, to an adjudication by a state court. The federal court and federal officer are neither authorized nor required to look into the records of the state court, to ascertain the extent of their power over a certain person. No such thing was contemplated by the act of congress. The same answer to the argument of the defendant may be given, if, as is claimed, this matter should be considered as more properly coming within that part of the act of congress, which relates to the proceedings, upon the execution. It will be recollected, too, that before any of these proceedings under the insolvent laws of Ohio, the circuit court was exercising its jurisdiction over all the parties; that the defendant had become special bail for the Harris’s, and that judgment *had been rendered against them, before the discharge of either of them, and that one of them was not dis- L charged until after a capias ad satisfaciendum had been issued against them, and returned not found. The recognisance was, therefore, forfeited, and the present defendant liable to an action, before the discharge of Joseph Harris. Was it intended, by the act of 1828, directly or indirectly, to give to a state court power to release a bail from his recognisance in the federal court ? To release to him an action accrued against him ? To discharge him from a contract, after it was broken ? Could the act of the state court divest the present plaintiffs of rights thus acquired under, and cognisable by, another jurisdiction? Is there an inherent power in a state court—is there an authority conferred upon such a court, by a necessary construction of any act of congress, or by any rule of court, which it is competent for judges to establish, to take from the federal courts their prisoners, confined under their process, in a suit of which they not only have the right of jurisdiction, ut in which they are actually exercising that jurisdiction, and set them at arge. The principle insisted upon by our opponents goes the full extent; e courts of common pleas of Ohio can, upon this principle, extend the 9 Pet.—15 225 345 SUPREME COURT [Jan’y Beers v. Haughton. benefit of her insolvent laws to the actual prisoners of the United States courts, as well as to those who are liable to imprisonment under their process, by a proceeding commenced in the state courts, after the key has been actually turned upon the prisoners. If they can protect the one, they can, by the same means, release the other. It may be the law of the land ; but we have not thus learned the nature of our federal and state institutions. We have endeavored to show : 1. That an insolvent law of a state, by which an individual is relieved from imprisonment, is merely a law affecting the remedy, the mere lex fori, and that it can have no force except in the courts of the government enacting it; that, therefore, upon general principles, it does not govern the courts of the United States. 2. That there is no act of congress that gives to such insolvent laws any force or effect in the courts of the Union. 3. That if the act of congress of May 1828, could supposed to give any effect to the insolvent law of Ohio, yet it *does J not give any new effect to the adjudications of hei' courts ; that it does not give to them the power of exempting any individual from any process used in the courts of the United States. 4. That it is not competent for the circuit courts of the United States, by any rule, to confer such a power upon the state courts, nor in any way to alter the legal effect of the adjudications of a state court upon parties litigant in the circuit court; and especially, that the circuit court could not, by any general rules, made after a contract— whether such contract be a recognisance of bail or any other contract—has been made and broken, alter the effect of that contract, nor take away the right of the party to damages for that breach. 5. We think we have also shown in the course of our argument, and that it is manifest, that the present plaintiffs, being residents of another state, their contract with the Harris’s having been made in another state—judgment having been recovered against them in the circuit court upon that contract—the present defendant having been special bail in the case—the state courts could not so interfere with the persons of any of the parties—with their contracts, or any matter relating thereto, as directly or indirectly to affect any for their rights or liabilities in the circuit court. We think that we have thus shown that the plea of the defendant to the plaintiff’s action below, was insufficient, and that the demurrer thereto ought to have been sustained, and judgment rendered for the plaintiffs. We are aware, that there have been decisions in the circuit courts of the United States, differing, in some respects, from the principles for which we have contended. Persons arrested on mesne process have sometimes been discharged on common bail, because they had been previously discharged under a state insolvent law. But even this has been refused, when the plaintiff was not at the time within the jurisdiction of the state, or where the contract sued on, was made without its jurisdiction : see Pet. C. C. 484, and cases there cited. But it is obvious, that in many cases, defendants are entitled to be discharged on common bail, who, after judgment, are not exempt from a capias ad satisfaciendum, and to all the effects of this writ. No at-*^4'71 however, so far as we are aware, *has ever before been made, J to nullify a final process of the United States courts, by means of such an insolvent law of a state, or by means of any adjudication by a state tribunal, under such law. Yet even if this were a question, as to a right or bail on mesne process, the plaintiffs- being citizens of another state, and the 226 1835] OF THE UNITED STATES. 347 Beers v. Haughton. debt on which judgment was recovered having been contracted in that state, the case would come within the principle decided by Judge Washington, above referred to, of Read v. Chapman. Fox, for the defendant.—The defendant in error thinks this judgment ought to be sustained. But whether it shall be sustained or reversed, depends upon the question, whether a discharge from imprisonment, obtained in the state courts of Ohio, under her insolvent law, can be of any validity in the United States courts. If such a discharge is valid, the question is at an end. That it is valid in the Ohio courts, is not questioned. I maintain it is valid in the federal courts. By the act of congress of 19th May 1828, (4.U. S. Stat« 278), it is provided, “ that writs of execution, and other final process, issued on judgments and decrees rendered in any of the courts of tbe United States, and the proceedings thereon, shall be the same, except their style, in each state, respectively, as are now used in the courts of such state ; provided, however, that it shall be in the power of the courts, if they see fit, in their discretion, by rules of court, so far to alter final process in said courts, as to conform the same to any change which may be adopted by the legislatures of the respective states in the state courts.” By this statute, I understand the same executions then in use in the state courts of Ohio, and the same modes of proceeding on those executions, were adopted for the federal court in Ohio. Such appears to have been the object of congress in passing that law, and such I believe has been the practice under it, in the seventh circuit, at least. And for the purpose of enabling the circuit courts to continue to use the same executions, and the same modes of proceeding thereon, power is given to the courts to (l alter final process, so as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts.” *In Kentucky, where imprisonment for debt is abolished, I understand, the federal courts do not pretend to issue a *• capias. If this was the object of the law in question, this court has only to ascertain the mode of proceeding to execute writs of capias ad satisfaciendum in the courts of Ohio ; for it is that mode of proceeding which is to govern this cause. By the law of Ohio, passed 12th March 1831 (29 Ohio Statutes 329), entitled “ an act for the relief of insolvent debtors,” it will be found (§ 21), that on the applicant first applying to the commissioner of insolvents for the benefit of that act, he obtains a certificate which protects his person from arrest or imprisonment for any debt or demand in any civil action, at the suit of any person named in his schedule, until the second day of that term of the court of common pleas, to which the commissioner shall return copies, &c. By the 22d section, the sheriff, or any officer having custody of the defendant, is directed to discharge him out of custody, on his producing his certificate ; and the officer is directed “ to return a copy of such certificate, and also return, that in obedience to such certificate, he had ischarged the person named therein.” Provision is made for the court of common pleas of the county to receive the returns of the proceedings before ® commissioner .of insolvents, and for the final granting or rejection of sue application, and granting to the applicant a final certificate of discharge rom arrest, on account of any and all debts mentioned in his schedule, for 227 348 SUPREME COURT Beers v. Haughton. [Jan’y ever. And by the 36th section it is provided, in addition, that “if any sheriff or other officer shall arrest any person having been so discharged by the court, such officer having knowledge of such discharge, and that the person so arrested has a certificate so granted to him by the court, or shall refuse to discharge the person so arrested, out of his custody, as soon as such certificate shall be produced and shown to him, the officer so offending shall be deemed guilty of a trespass, and shall be liable to be prosecuted in the court of common pleas, in an action at the suit of the person injured,” &c. Here, then, we have the whole law which governs this case. The mode of proceeding to execute a capias writ in Ohio, if the defendant has not been discharged from iriiprisonment under the insolvent law, is to arrest him. If the defendant *has taken the benefit of that act, or has only c J applied for it and obtained a certificate of exemption from arrest until the sitting of the next court, the officer having the execution is bound to release him from arrest. If he knows of the defendant’s having been previously discharged by the court from imprisonment on account of the debt named in the writ, he is considered as a trespasser in making the arrest. The return of the defendant’s having taken the benefit of the act, is a good return to such an execution ; and the reason why such a return is good, is, because it is the mode of proceeding required by the statute. And by the tenth rule of practice of the circuit court of Ohio, this practice or mode of proceeding is adopted by that court, as is admitted by the demurrer. This rule of proceeding was adopted at the December term 1831, and was intended to avoid all doubt as to the course which the marshal ought to pursue on mesne and final process. There can be no question, I think, but the rule does adopt in effect the whole insolvent law of Ohio, so far as the same is connected with capias writs. But there was no necessity, in fact, for the court to have adopted this rule, after the passage of the act of 19th May 1828 ; for by the fair construction of that act, as has been already remarked, the proceedings of the state courts are expressly adopted, and by that adoption, became the law of the federal courts in Ohio. And it will be found, that at the time the act of congress was passed, the proceedings upon execution, in the state o Ohio, were the same as in December 1831. 22 Ohio Laws 326. It is said, the legislature intended by the term “ process,” a writ, or something analogous ; and that it is contradistinguished from the procee ings to be had by virtue of a writ ; and that mesne process is spoken of as distinct from the “forms and modes of proceeding.” The distinction may exist, but affords no favorable argument for the plaintiffs. The act is to regulate the processes in the courts of the Union. How can the process e regulated, unless by directing the mode of proceeding in executing i The form of process, whether mesne or final, is of no benefit to the plain iffs, unless a mode is pointed out, by law or rule of court, of making t a * ^orm available. To make a demand available against a debtor, a J *writ must be devised, and a mode of executing that writ adopte , or the debtor cannot be brought into court. For the purpose of ascertain^ ing or fixing that form or mode of executing it, the first section of t e ac of 19th May 1828, was adopted. And the third section of the act a op s the same executions, and the proceedings thereupon, as were, at the passing 228 1835] OF THE UNITED STATES. 350 Beers v. Haughton. of the act, used in the courts of the state. Of what beneficial use could the mere blank execution have been, without a mode of executing it ? The mere formal writ is of no validity, without the mode of executing it. The form and the mode of executing it constitute its real value. And it is evident, that congress intended to adopt the form and mode of proceeding also, as they have used the language of the act of 1789 ; which has been construed by this court to embrace the whole progress of an execution, from its formation to the time of its being fully executed. 10 Wheat. 1. Congress, therefore, have adopted the state court executions, and also the mode of proceeding upon these executions, as they existed in May 1828. And if the sheriff could not arrest a person on a capias ad satisfaciendum issued from a state court, neither could the marshal on an execution from the federal court. It is not contended on the part of the defendant in error, that the state legislature could pass insolvent laws to affect the process of the federal courts. But we do contend, that congress may adopt any of the state laws as a rule for the government of the federal courts ; and they have adopted the laws of Ohio in force at the passage of the act of 19th May 1828. The laws of Ohio, therefore, are the laws of congress by adoption. It is only in this view of the act of 1789, the federal courts have any known modes of practice or serving writs. The great object of the latter act was, to assimilate the process and proceedings of the federal courts to the process and proceedings of the then state courts. The object of the act of 1828 was to assimilate the process and practice of the new states and the federal courts therein. And is it not a matter known to us all, that the federal courts did not pretend to issue writs not issued in the state courts, and that they always made their rules, practice, &c., to conform to the rules and practice of the state courts ? Did *the federal courts pretend to sell land in Vir- rs¡s ginia, as they did in New York and Pennsylvania? They did not. But when Kentucky authorized land to be sold, the federal courts, under the authority given them so to alter the form of process, &c., by the act of 1789-1792, adopted the state writs of execution suitable to subject land for sale on judgments obtained in those courts. The counsel appear to be laboring under a great mistake, in supposing t ey have shown the special bail-bond forfeited absolutely, by the return of e capias ad satisfaciendum, not found. That the bond is so far forfeited y the return, as to authorize an action to be brought on the bond, I admit; ut still the bail has the right to surrender his principal, at any time before t-Xre^Urn day the scirefacias against the bail, and thus defeat the plain-1 s right of action. This right of surrender is absolute. And if the principa dies after the return of the capias ad satisfaciendum, and before e return of the scire facias against the bail, the bail is discharged by the s atute law of Ohio. The bail is not fixed, until the scire facias is served. an . of Mount Pleasant v. Administrators of Pollock, 1 Ohio 35. And at e time this bail-bond was given, by special rule of the seventh circuit th^^ WaS Prov^e^’ that special bail might surrender the principal, before sueh0U^, anytime’before or after judgment, or to the marshal, provided stir made before a return of a scire facias executed, or a second ™ jactas, nihil. It is not true, therefore, as suggested in the plaintiff’s 229 351 SUPREME COURT Beers v. Haughton. [Jan’y argument, that the rule of court relied upon, took away any vested right from plaintiff, or conferred any on defendants. Such being the right of the principal to surrender, I take it to be a well-settled principle, that wherever the law takes the principal out of the custody of his bail, either by the operation of an insolvent or bankrupt law, or otherwise, so as to prevent his surrendering, it is tantamount to a surrender. The law having made it unlawful to arrest, excuses the surrender. 14 East 593 ; 1 vol. Law Library, July 1833, p. 124; 1 McCord 373 ; 18 Johns. 335 ; 5 Binn. 338; 9 Serg. & Rawle 24. This question is re^erre^ to, for the purpose of showing the *plaintiff’s counsel are ■* mistaken in supposing that the court below, by adopting the rules of December 1831, undertook to divest them of any vested right of action on the bail-bond, by the return of the ca. sa.; because, as before remarked, the tenth rule of the court, then existing, gave the right to surrender at any time before the scire facias against the bail returned executed. Having, as is supposed, established the proposition that the act of congress of May 1828, has adopted the state court executions, and the modes of proceeding thereon, as used in 1828, I might here leave this branch of the case. But should the court differ with me in this view, it is contended, that the rules of practice adopted by the court below, at December term 1831, fully shield the defendant from all responsibility. The tenth rule, recited in the plea, refers to the insolvent law of Ohio particularly, and adopts it altogether. Under neither mesne nor final process, shall any individual be kept imprisoned, who, under the insolvent law of the state, has for such demand been released from imprisonment. Is not this a full and complete recognition of the validity of the insolvent law? Does it not recognise the effect of that law, as an excuse to the bail for not surrendering ? By the 5th rule, bail may surrender their principal at any time before judgment; that is, judgment against the bail. Now, as before remarked, the principal having become protected by the law from arrest for this debt, his bail could not legally surrender him, and hence he is excused. But it is said, the court has no power to adopt rules which take from a citizen of another state the right to imprison his debtor. This position cannot be sustained. This court have decided, that the states have the right to abolish imprisonment altogether. 12 Wheat. 378, 381; 4 Ibid. 200. The United States courts have the right to suit their process to such legislation : they have the power, therefore, to abolish, by rule of court, the use of the capias writ. If they can abolish it as to all the citizens of Ohio, cannot they do it in favor of that small but unfortunate class of debtors, whose necessities compel them to petition for that liberty, which ought to be the right of every American ? * , But it is said, there is provision made by the act of congress o 353J J goo, by which an insolvent may be discharged; and hence, it is urged, that no other mode than the one pointed out in that act could e resorted to, for the purpose of releasing him from imprisonment. I contend that the act of the 19th of May 1828, so far as it conflicts with the act of 1800, repeals the latter act. But whether this be so or not, the act o 1800 is not an .act for the general relief of insolvents, but is only inten e to release an insolvent debtor from imprisonment, on the particular deb on 230 1835] OF THE UNITED STATES. 353 Beers v. Haughton. which he is charged in execution, while the insolvent law relieves the debtor from arrest in any debt he is owing at the time of his application. The object of the two laws, therefore, is widely different; and congress, by adopting the state laws, and the circuit court, by adopting those laws, may prevent the defendant from being arrested ; and I contend that the act of 1828, and the rules aforesaid, have virtually abolished imprisonment of insolvent debtors. But it is said, that in attempting to relieve himself from responsibility in the present case, the defendant is not availing himself of the state law, but of a particular adjudication of a state court. But suppose, the law of Ohio had declared, that no man should be arrested for debt; suppose, the legislature had extended to defendants, Harris’s, an exemption from imprisonment, by a legislative act, as was done in the case of Mason v. Haile, 12 Wheat. 370, would it be contended, that in that case no exemption from imprisonment could be claimed ? Again, will it be contended, that no rights or exemption can be acquired under judicial acts of the state courts ? Surely not. An application for the benefit of the insolvent act, although a judicial proceeding, is not therefore void. All creditors named in the application are parties to it, and are bound by the judgment rendered. They may appear and object to the applicant’s discharge. It is said, that if the Harris’s, after being arrested, were entitled to be immediately discharged, this would be annulling the execution, not proceeding to execute it. But might not the same remark be made in all cases ? Would it be considered as annulling an execution in the state courts, by the sheriff discharging a defendant from arrest, on his producing the certificate *of his discharge ? The sheriff, in proceeding to execute a capias ad satisfaciendum, would not be considered as annulling the *-execution, under such circumstances. ’ And certainly, if congress, by the act referred to, or by the rules of its own courts, have adopted the state practice, the marshal performs his duty, by returning the discharge of the defendant, by the insolvent debtor proceeding, in the same manner as the sheriff is discharging his duty on the state court execution, by a similar return. Nor is it true, that a capias writ can only be obeyed by an actual arrest. If the law forbids the arrest, or if the defendant dies, or if he is imprisoned on a criminal charge, so that the officer cannot legally arrest, he may return the facts, and by so doing he obeys, in a legal sense, the command of the writ. It does not necessarily follow, that the writ unlawfully issued, merely because the defendant is privileged from being arrested. A writ is lawful, when issued against a suitor attending court; but the suitor would he privileged from arrest, and if he claimed his privilege, by suing out a habeas corpus, he would be discharged. So, of a member of congress, a judge, and all that class of persons whom the policy of the law has seen fit to exempt from arrest. The insolvent laws of the state are, in principle, nothing more than granting like privileges for arrest to an unfortunate c ass of honorable men ; and the period during which that privilege shall continue, depends upon the legislature. Again, it is said, the court could not adopt any rule, the effect of which would be to discharge the bail from liability to vacate their contract, and 231 354 SUPREME COURT [Jan*y Beers v. Haughton. wrest their vested rights from the plaintiffs. Before we discuss the proposition as to whether the court below did, by their rule, vacate the contract of the plaintiffs, we had better ascertain what that contract was. The contract is found in the declaration, in these words : the defendant, at the time mentioned, a acknowledged himself special bail for the said Joseph Harris and Cornelius V. Harris, in the sum of $4000, in the cause or suit in which judgment was rendered as aforesaid ; that is to say, that they, the said Joseph Harris and Cornelius V. Harris, should pay and satisfy the said judgment, or render themselves into the custody of the marshal.” Now, it # , is asked, what contract does this present, in and of *itself ? With- -I out the aid of the rules of court, or the statute of Ohio, it is perfectly senseless. What is meant by special bail, the rules of court tell; but without those rules, the contract is senseless jargon. If, then, the contract depends upon the rules of court; if they give it life originally ; if they preserved its existence ; the plaintiffs are entitled to what those rules give them, afid to nothing more. When they took the recognisance, it was with a knowledge that those rules were under the entire control of the court; that they could be moulded by the court; that the state legislature could abolish imprisonment for debt, and the writ of capias also ; and that the court were authorized to alter their writs to suit the state legislation. The plaintiffs took their recognisance, subject to all those contingencies. 12 Wheat. 370. No contract, therefore, has been violated, nor have there been any vested rights wrested from the plaintiffs. To make the worst possible case, all that can be said, is, that the plaintiffs, by the adoption of the rule in question, were deprived of one remedy which they had when the bail was given, viz., the imprisoning the defendants. But as it is admitted, that this only affected the remedy, the plaintiffs in error cannot complain. The counsel appear not to view the contract of bail correctly, when they attempt to liken it to other contracts. It is, in fact, nothing but a part of the process of the court. It is a mere substituting of a keeper of the defendant’s own choice for one appointed by law. For the bail is said to be the keeper of the principal; he can take him wherever he pleases, and his obligation is to keep him so that the plaintiff may take him at the proper time. And the moment the creditor loses his right to take or hold the principal, the bail is discharged ; for the latter cannot keep, where the former cannot take the body. It is no question, therefore, about interfering with vested rights. The simple inquiry is, had the plaintiffs a right to take the bodies, after they had taken the benefit of the insolvent act ? If they had, the judgment is erroneous : if they had not, it is correct. 14 East 598 ; Law Library, tit. Bail. Story, Justice, delivered the opinion of the court.—This is a writ of * judgment of the circuit court for the district of Ohio. e J material facts are these. In June 1830, the plaintiffs in error (w o are citizens of New York) brought an action of assumpsit in the cl^u1^ court of Ohio, against one Joseph Harris and Cornelius V. Harris, an a the December term of the court, recovered judgment for $2818.86 and cos In this action, the defendant in error became special bail by recognisance, viz., that the Harris’s should pay and satisfy the judgment recovered agams 232 1635] OF THE UNITED STATES. 356 Beers v. Haughton. them, or render themselves into the custody of the marshal of the district of Ohio. In October 1831, a writ of capias ad satisfaciendum was issued upon the same judgment, directed to the marshal; who, at the December term 1831, returned, that the Harris’s were not to be found. At the same term, the circuit court adopted the following rule : “ That if a defendant, upon a capias, does not give sufficient appearance bail, he shall be committed to prison, to remain until discharged by due course of law. But under neither mesne nor final process, shall any individual be kept imprisoned, who, under the insolvent law of the state, has for such demand been released from imprisonment.” In February 1831, Cornelius V. Harris was duly discharged from imprisonment for all his debts, under the insolvent law of Ohio, passed in 1831 ; and in February 1832, Joseph Harris was in like manner discharged. In December 1832, the plaintiffs in error commenced the present action of debt, upon the recognisance of bail, against the defendant in error,.stating in the declaration, the original judgment, the defendant becoming special bail, and the return on the execution “not found.” The defendant, among other pleas, pleaded the discharge of the Harris’s under the insolvent law of Ohio of 1831, and the rule of the circuit court, above mentioned, in bar of the action. The plaintiffs demurred to the plea, and, upon joinder in demurrer, the circuit court gave judgment for the defendants ; and the present writ of error is brought to revise that judgment. The question now before this court is, whether the plea contains a substantial defence to the action of debt brought upon the recognisance of special bail. In order to clear the case of embarrassment from collateral matters, it may be proper to state, that the recognisance of special bail being a part of the proceedings in a suit, and subject to the regulation of the court, the nature, extent and limitations of the responsibility created thereby, are to be decided, not by a mere examination of the terms r. „ of the instrument, but by a reference to the known rules of the court L and the principles of law applicable thereto. Whatever, in the sense of those rules and principles, will constitute a discharge of the liability of the special bail, must be deemed included within the purview of the instrument, as much as if it were expressly stated. Now, by the rules of the circuit court of Ohio, adopted as early as January term 1808, the liability of special bail was provided for and limited ; and it was declared,* that special bail may surrender their principal at any time, before or after judgment against the principal; provided such surrender shall be before a return of a scire facias executed, or a second scire facias, nihil, against the bail. And this in fact constituted a part of the law of Ohio, at the time when the present recognisance was given ; for in the Revised Laws of 1823—24 (22d vol. of Ohio aws 58), it is enacted, that, subsequent to the return of the capias ad respondendum, the defendant may render himself, or be rendered, in dis-c arge of his bail, either before or after judgment; provided such render e made at or before the appearance day of the first scire facias against the ai returned scire feci, or of the second scire facias returned nihil, or of the capias ad respondendum or summons, in an action of debt against the bail on is recognisance, returned served ; arid not after. This act was in force at Passa^e ^e ac^ congress of the 19th of May 1828, ch. . , and must, therefore, be deemed as a part of the “ modes of proceeding ” in suits, to have been adopted by it. So that the surrender of the principal 233 357 SUPREME COURT Beers v. Haughton. [Jan’y by the special bail, within the time thus prescribed, is not a mere matter of favor of the court, but is strictly a matter of legal right. And this constitutes an answer to that part of the argument at the bar, founded upon the notion, that by the return of the capias ad satisfaciendum, the plaintiffs had acquired a fixed and absolute right against the bail, not to be affected by any rules of the court. So far from the right being absolute, it was vested sub modo only, and liable to be defeated in the events prescribed by the prior rules of the court, and the statute of Ohio above referred to. It is true, that it has been said, that by a return of non *3581 eS^ inventus 011 a capias ad satisfaciendum, *the bail are fixed ; but J this language is not strictly accurate, even in courts acting professedly under the common law, and independently of statute. Lord Ellen-borough, in Mannin n. Partridge, 14 East 599, remarked, “that bail were to some purposes said to be fixed by the return of non est inventus upon the capias ad satisfaciendum ; but if they have, by the indulgence of the court, time to render the principal, until the appearance day of the last scire facias against them, and which they have the capacity of using, they cannot be considered as Completely and definitively fixed till that period.” And so much are the proceedings against bail deemed a matter subject to the regulation and practice of the court, that the court will not hesitate to relieve them in a summary manner, and direct an exoneretur to be entered, in such cases of indulgence, as well as in cases of strict right. But there is this distinction : that where the bail are entitled to be discharged ex debito justitioi, they may not only apply for an exoneretur by way of summary proceeding, but they may plead the matter as a bar to a suit in their defence. But where the discharge is a matter of indulgence only, the application is to the discretion of the court, and an exoneretur cannot be insisted on, except by way of motion. And this leads us to the remark, that where the party is, by the practice of the court, entitled to an exoneretur, without a positive surrender of the principal, according to the terms of thè recognisance, he is, d fortiori, entitled to insist on it by way of defence, where he is entitled, ex debito justitux, to surrender the principal. Now, the doctrine is clearly established, that where the principal would be entitled to an immediate and unconditional discharge, if he had been surrendered, there the bail are entitled to relief by entering an exoneretur, without any surrender. This was decided in Mannin v. Partridge, 14 East 599 ; Poggs v. Teackle, 5 Binn. 332 ; and Olcott v. Lilly, 4 Johns. 407. And, d fortiori, this doctrine must apply where the law prohibits the party from being imprisoned at all ; or where by the positive operation of law, a surrender is prevented. So that there can be no doubt, that the present plea is a good bar to the suit, notwithstanding there has been no surrender, if by law the principal could no, upon such surrender, have been imprisoned at all. * *This constitutes the turning point of the case, and to the consi J eration of it we shall now proceed. In the first place, there is no doubt, that the legislature of Ohio possessed full constitutional authority to pass laws, whereby insolvent debtors should be released, or protected from arrest or imprisonment of their persons, on any action for any debt or e mand due by them. The right to imprison constitutes no part of the con tract ; and a discharge of the person of the party from imprisonment oes 234 1835] OF THE UNITED STATES. 350 Beers v. Haughton. not impair the obligation of the contract, but leaves it in full force against his property and effects. This was clearly settled by this court in the cases of Sturges v. Crovoninshield, 4 Wheat 200 ; and Mason n. Haile, 12 Ibid. 370. In the next place, it is equally clear, that such state laws have no operation, proprio vigors, upon the process or proceedings in the courts of the United States, for the reason so forcibly stated by Mr; Justice Johnson, in delivering the final opinion of the court in Ogden v. Saunders, 12 Wheat. 213 ; and by Mr. Chief Justice Marshall, in delivering the opinion of the court in Wayman v. Southard, 10 Ibid. 1 ; and by Mr. Justice Thompson, in delivering the like opinion in the Bank of the United States n. Halstead 10 Ibid. 51. State laws cannot control the exercise qf the national government, nor in any manner limit or affect the operation of the process or proceedings in the national courts. The whole efficacy of such laws in the courts of the United States, depends upon the enactments of congress. So far as they are adopted by congress, they are obligatory ; beyond this, they have no controlling influence. Congress may adopt such state laws directly, by a substantive enactment, or they may confide the authority to adopt them to the courts of the United States. Examples of both sorts exist in the national legislation. The process act of 1789, ch. 21, expressly adopted the forms of writs and modes of process of the state courts, in suits at common law. The act of 1792, ch. 36, permanently continued the forms of writs, executions and other process, and the forms and modes of proceeding in suits at common law, then in use in the courts of the United States, under the process act of 1789 ; but with this remarkable difference, that they were subject to such alterations and additions as the said *courts respec-tively should, in their discretion, deem expedient, or to such regula- L tions as the supreme court of the United States should think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same. The constitutional validity and extent of the power thus given to the courts of the United States, to make alterations and additions in the process, as well as in the modes of proceeding in suits, was fully considered by this court in the cases of Wayman v. Southard, 10 Wheat. 1, and the Bank of the United States v. Halstead, 10 Ibid. 51. It was there held, that this delegation of power by congress was perfectly constitutional; that the power to alter and add to the process and modes of proceeding in a suit, embraced the whole progress of such suit, and every transaction in it, from its commencement to its termination, and until the judgment should be satisfied; and that it authorized the courts to prescribe and regulate the conduct of the officer in the execution of final process, in giving effect to its judgment. And it was emphatically laid down, that “ a general superintendence over this subject seems to be properly within the judicial province, and has always been so considered ; ” and that “ this provision enables the courts of the Union to make such improvements in its forms and modes of proceeding as experience may suggest; and especially, to adopt such state aws on this subject, as might vary to advantage the forms and modes of proceeding, which prevailed in September 1789.” The result of this doc-^nne, as practically expounded or applied in the case of the Bank of the nited States v. Halstead, is, that the courts may, by their rules, not only* a ter the forms, but the effect and operation of the process, whether mesne or nal, and the modes of proceeding under it; so that it may reach prop- 235 âeo SUPREME COÜRT [Jan^y Beers v. Haughton. erty not liable, in 1789, by the state laws, to be taken in execution, or may exempt property, which was not then exempted, but has been exempted by subsequent state laws. If, therefore, the present case stood upon the mere ground of the authority conferred on the courts of the United States by the acts of 1789 and 1792, there would seem to be no solid objection to the authority of the circuit court of Ohio to make the rule referred to in the pleadings. It is no more than a regulation of the modes of proceeding in a suit, in order to *conform to the state law of Ohio, passed in 1831, for the relief of J insolvent debtors. A regulation of the proceedings upon bail-bonds and recognisances, and prescribing the conduct of the marshal in matters touching the same, seems to be as completely within the scope of the author ity as any which could be selected. But in fact the present case does not depend upon the provision of the acts of 1789 or 1792, but it is directly within and governed by the process act of the 19th of May 1828, ch. 68. That act, in the first section, declares, that the forms of mesne process, and the forms and modes of proceeding in suits at common law in the courts of the United States, held in states admitted into the Union since 1789 (as the state of Ohio has been), shall be the same in each of the said states, respectively, as were then used in the highest court of original and general jurisdiction in the same ; subject to such alterations and additions as the said courts of the United States, respectively, shall, in their discretion, deem expedient, or to such regulations as the supreme court shall think proper, from time to time, by rules, to prescribe to any circuit or district court concerning the same. The third section declares, that writs of execution and other final process issued on judgments and decrees rendered in any courts of the United States, and “the proceedings thereupon,” shall be the same in each state, respectively, as are now used in the courts of such state, &c. Provided, however, that it shall be in the power of the courts, if they see fit, in their discretion, by rules of court, so far to alter final process in such courts, as to conform the same to any change which may be adopted by the legislature of the respective states, for the state courts. This act was made after the decisions in Wayman n. Southard, and the Bank of the United States v. Halstead, 10 Wheat. 1, 51, and was manifestly intended to confirm the construction given in those cases to the acts of 1789 and 1792, and to continué the like powers in the courts to alter and add to the processes, whether mesne or final, and to regulate the modes of proceedings in suits and upon processes, as had been held to exist under those acts. The language employed seems to have been designed to put at rest all future doubts upon the subject. But the material consideration now to be taken * no^ce *that the act of 1828 expressly adopts the mesne pro--* cesses and modes of proceeding in suits at common law, then existing in the highest state courts, under the state laws ; which, of course, include all the regulations of the state laws as to bail, and exemptions of the party from arrest and imprisonment. In regard also to writs of execution an other final process, and “ the proceedings thereupon,” it adopts an equa y comprehensive language, and declares that they shall be the same as were then used in the courts of the state. Now, the words, “the proceedings on the writs of execution and other final process,” must, from their very impoi , 236 1835] OF THE UNITED STATES. 362 Beers v. Haughton. be construed to include all the laws which regulate the rights, duties and conduct of officers in the service of such process, according to its exigency, upon the person or property of the execution-debtor, and also all the exemptions from arrest or imprisonment under such process, created by those laws. We are then led to the inquiry, what were the laws of Ohio in regard to insolvent debtors, at the time of the passage of the act of 1828? By the insolvent act of Ohio, of the 23d of February 1824 (Laws of Ohio, Revision of 1824, vol. 22, § 8, 9, p. 327-8), which continued in force until it was repealed and superseded by the insolvent act of 1831, it is provided, that the certificate of the commissioner of insolvents, duly obtained, shall entitle the insolvent, if in custody upon mesne or final process, in any civil action, to an immediate discharge therefrom, upon his complying with the requisites of the act. And it is further provided, that the final certificate of the court of common pleas, duly obtained, shall protect the insolvent for ever after from imprisonment for any suit or cause of action, debt or demand mentioned in the schedule given in under the insolvent proceedings; and a penalty is also inflicted upon any sheriff or other officer, who should knowingly or wilfully arrest any person contrary to this provision. The act of 1831 (Laws of Ohio, Revision of 1831, vol. 29, § 21, 36, p. 333, 336) contains a similar provision, protecting the insolvent, under like circumstances, from imprisonment and making the sheriff or other officer, who shall arrest him contrary to the act, liable to an action of trespass. Now, the repeal of the act of 1824, by the act of 1831, could have no legal effect to change the existing forms of mesne or final process, or the modes of proceeding thereon in pg»« the courts *of the United States, as adopted by congress, or to vary the powers of the same courts in relation thereto ; but the same remained in full force,- as if no such repeal had taken place. The rule of the circuit court is in perfect coincidence with the state laws existing in 1828 ; and if it were not, the circuit court had authority, by the very provisions of the act of 1828, to make such a rule, as a regulation of the proceedings upon final process, so as to conform the same to those of the state laws on the same subject. Upon these grounds, without going into a more elaborate review of the principles applicable to the case, we are of opinion, that the judgment of the circuit court was right; and that it ought to be affirmed, with costs. Thompson, Justice. (Dissenting.)—This is the first time this court has been called upon to give a construction to the act of congress of the 19th ay 1828. (4 U. S. Stat. 478.) And the rules and principles adopted by t e circuit court, and which appear to be sanctioned by this court, when carried out to their full extent, appear to me to be such an innovation, upon been heretofore understood to be the law by which the courts of t e United States were to be governed, as could not have been intended by congress by the act of 1828. It is giving to the courts the power, by rule o court, to introduce and enforce state insolvent systems. It authorizes e courts to abolish all remedy which a creditor may have against the •° A 'f hiS debtor who has been discharged under a state insolvent law. n i the courts have this power, they have the same power over a fieri an<^ t0 exemPf property acquired after the discharge of the insolen rom the payment of his antecedent debts ; if such be the state law. 237 363 SUPREME COURT [Jan’y Beers v. Haughton. The act is general, extending to writs of execution, and all other final process. And in addition to this, it alters the whole law of remedy against bail, in such cases. A capias ad satisfaciendum against the principal is an indispensable preliminary step to a prosecution against the bail; and if the court has a right to order that no capias ad satisfaciendum shall be issued, it is taking from the creditor all remedy against the bail. To say, that an execution may be taken out, but shall not be executed upon the party, is a * _ mere mockery of * justice. The constitutionality of the insolvent law J of Ohio is not drawn in question ; and whether, as a measure of policy, it is not wise to abolish imprisonment for debt, is not a question which we are called upon to decide. As between the citizens of Ohio, and in their own courts, they have full power to adopt such course in this respect as the wisdom of their legislature may dictate. But the present is a question between the citizens of that state, and the citizens of another state. And that made the great and leading distinction adopted by this court in the case of Ogden v. Saunders, 12 Wheat. 531 ; and, indeed, it was the very point upon which that cause turned. And if the practical operation of the act of 1828 is to be what is now sanctioned by this court, it is certainly overruling that decision. So far as that goes, I can have no particular objection, as I was in the minority in that case. But this case involves other important considerations. It is an action brought by citizens of the state of New York, against citizens of the state of Ohio, upon a recognisance of bail. The pleadings in the cause terminated in a demurrer to the plea ; and the judgment of the court sustained the validity of the plea, and defeated the plaintiff’s right of recovery. A brief statement of the facts, as disclosed by the record, will aid in a right understanding of the questions that are presented for consideration. The defendant, Richard Haughton, became special bail for Joseph Harns and Cornelius V. Harris, in a suit brought against them by the plaintiffs in this cause. On the 12th day of October 1831, a capias ad satisfaciendum was issued against them, on the judgment which had been recovered, for $2846.56. This capias ad satisfaciendum was returned “ not found,” at the December term 1831, of the circuit court. This execution, it is to be presumed, was returnable on the first day of the term, which is according to the ordinary course of proceedings. At the same December term 1831, the rulé of court set out in the plea was adopted ; which orders and directs, that no person, either under mesne or final process, shall be kept in prison, who, under the insolvent law of the state, has, for such demand, been released from imprisonment. The plea alleges, that Cornelius V. Harris, one of the defendants in the original suit, was, at the February term 1831, of the court * of common *pleas for Hamilton county, in the state of Ohio, ordered and adjudged to be for ever thereafter protected from arrest or imprisonment for any civil action, or debt, or demand in the schedule of his debts delivered to the commissioner of insolvents ; among which was the judgment above mentioned. The plea also alleges, that a like discharge was given to the other defendant, Joseph Harris, at the February term 1832, of the same court. So that it appears, that the rule of court, and the discharge of one of the defendants, took place after the bail was fixed in law, by the return “ not found,” upon the ca. sa. against the defendants in the original suit. As against Joseph Harris, therefore, a retrospective effect 238 1835] OF THE UNITED STATES. 365 Beers v. Haughton. has been given to his discharge, and a vested legal right of the plaintiff thereby taken away, upon this demurrer to a special plea, founded upon a particular rule of court specified in the plea; it cannot, I should think, be claimed that other rules of court have the notoriety of public laws, which the court is bound judicially to know and notice. Was the bail, under these circumstances, discharged ? and could such matters be set up by way of plea in bar to the present action against the bail ? are the questions to be considered. In the case of Ogden v. Saunders, the parties, as in the present case, were citizens of different states ; and the decision of the court was, that as between parties of different states, the state insolvent laws had no application. Mr. Justice Johnson, who delivered the opinion of the court, uses very strong language on this point, and which cannot be misunderstood. “ All this mockery of justice,” says he, “ and the jealousies, recriminations, and perhaps retaliations which might grow out of it, are avoided, if the power of the states over contracts, after they become the subjects exclusively of judicial cognisance, is limited to the controversies of their own citizens. And it does appear to me almost incontrovertible, that the states cannot proceed one step farther, without exercising a power incompatible with the acknowledged powers,of other states, or of the United States, and with the rights of the citizens of other states. Every bankrupt or insolvent system in the world must partake of the character of a judicial investigation. Parties whose rights are to be affected are entitled to a hearing But on what principle can a citizen of another state be forced into the courts of a state for this investigation ? The judgment to be passed is to *pros-trate his right; and on the subject of these rights, the constitution *• exempts him from the jurisdiction of the state tribunals, without regard to the place where the contract originated. In the only tribunal to which he owes allegiance, the state insolvent or bankrupt laws cannot be carried into effect; they have a law of their own on this subject: Act of 1800. (2 U. S. Stat. 4.) The constitution has constituted courts professedly independent of state power in their judicial course ; and yet the judgments of those courts are to be vacated, and their prisoners set at large under the power of the state courts, or of the state laws, without the possibility of protecting themselves from its exercise. I cannot acquiesce in an incompatibility so obvious. No one has ever imagined, that a prisoner in confinement, under process from the courts of the United States, could avail himself of the insolvent laws of the state in which the court sits. And the reason is, that those laws are municipal and peculiar, and appertaining exclusively to the exercise of state power, in that sphere in which it is sovereign ; that is, .etween its own citizens,-between suitors subject to state power exclusively, in their controversies between themselves.” And in conclusion, he sums up t e argument by saying, that “when, in the exercise of that power” (pas-sing insolvent laws), “ the states pass beyond their own limits, and the rights o their own citizens, and act upon the rights of citizens of other states, then arises a conflict of sovereign power, and a collision with the judicial powers granted to the United States, which renders the exercise of such a power incompatible with the rights of other states, and of the constitution of the United States.” . I have been thus particular in quoting the very language of the court, 239 366 SUPREME COURT [Jan’y Beers v. Haughton. that it may speak for itself. And that it was adopted in its fullest extent is evident, by what fell from the court in the case of Boyle v. Zacharie and Turner, 6 Pet. 643. “ The ultimate opinion,” say the court, “ delivered by Mr. Justice Johnson in the case of Ogden v. Saunders, was concurred in and adopted by the three judges who were in the minority upon the general question of the constitutionality of state insolvent laws, so largely discussed in that case. It is proper to make this remark, in order to remove an erroneous impression of the bar, that it was his single opinion, and not of the three other * judges who concurred in the judgment. So far, then, as decisions upon the subject of state insolvent laws have been made by this court, they are to be deemed final and conclusive.” The decision, in that case, turned exclusively upon the point, that state insolvent laws did not apply to suitors in the courts of the United States. And the emphatic language is used, “ no one has ever imagined, that a prisoner in confinement under process from the courts of the United States, could avail himself of the insolvent laws of the state in which the court sits.” Apply this principle to the case now before the court. A capias ad satisfaciendum was in the hands of the marshal against the Harris’s, the defendants in the original suit. Suppose, the marshal had arrested them (as was his duty to do, if they could be found) and put them in confinement. No one, say the court, could imagine, that they could avail themselves of the state insolvent law. But that is the very thing which the plea in this case does set up, under the authority of the rule of court, that no one shall be kept imprisoned who has been discharged under the insolvent law of the state; and it is the very thing that has proved available to deprive the plaintiffs of a recovery in this case. The case of Boyle v. Zacharie and Turner, was decided in the year 1832; and the enacting clause »of the act of congress of 1828, could not have been supposed to change the principles adopted in Ogden v. Saunders. If that act is to govern and control the case now before the court, it must be by virtue of the rule which has been adopted by the circuit court of Ohio. What is the law of 1828? It declares, “that writs of execution and other final process, issued on judgments and decrees rendered in any of the courts of the United States, and the proceedings thereupon, shall be the same, except their style, in each state, respectively, as are now used in the courts of such state, &c., provided, however, that it shall be in the power of the courts, if they see fit, in their discretion, by rules of court, so far to altei the final process in said courts, as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts.” A capias ad satisfaciendum was an execution in use in the courts of the state of Ohio, in the year 1828, when the act in question was passed. It was, therefore, adopted as a writ to be used in the courts of the Unite States. * - *But it is said, that the act adopts also the proceedings thereupon. It does so. But what is to be understood by proceedings? Can this, in any just sense, be satisfied by prohibiting all proceedings on the execution? Proceedings, both in common parlance and in legal acceptation, imply action, procedure, prosecution. And such is the explanation given o the term proceedings, in the case of Wayman n. Southard, 10 Wheat. “ It is applicable,” say the court, “ to writs and executions, and is app 1C 240 1835] OF THE UNITED STATES. 368 Beers v. Haughton. able to every step taken in a cause ; it indicates the progressive course of the business, from its commencement to its termination.” If it is a progressive course, it must be advancing, and cannot be satisfied by remaining at rest. In the cases of Wayman n. Southard, and the Bank of the United States v. Halstead, 10 Wheat. 1, 51, this term proceedings was applied to the mode and manner of executing the execution in the progress of obtaining satisfaction ; and the power of the court under the process act of 1792, to alter and add to the execution, by extending it to lands. But no part of those cases contains an intimation, that proceedings to obtain satisfaction, implies or warrants an arrest and stopping all execution whatever of the process. If the enacting clause in this act does not forbid the execution of the capias ad satisfaciendum, as it certainly does not, could it be done by a rule of court, under the proviso? I think it could not. The proviso does not authorize any rule relative to the proceedings in the cause. The term is not used at all. It only authorizes the court so far to alter final process, as to conform the same to that used in the state courts. The rule set up in this plea does not make any alteration whatever in the execution. That remains the same precisely as it was before ; and it only forbids the effect and operation of it. And if the rule is to be considered a part of the execution, and to be taken as if incorporated in the body of the writ, it would present a very singular process, commanding the marshal to take the body of the defendant, but forbidding him to keep the prisoner in confinement. Such incongruity cannot be attributed to this proviso. The rule, I think, is not authorized by this statute, and specially, as it was adopted after the bail was fixed in law, by the return “ not found,” upon the capias ad satisfaciendum issued against the principals. That such a *return fixes the bail, is a settled rule of the common law. Courts have, ex gratid, extended the right to surrender, until the return of L the writ or process against the bail; and perhaps, in some instances, the right to surrender has been extended to a later period. But the contingency of not being able to make the surrender, after the return of the capias ad satisfaciendum “not found,” is at the risk of the bail. And the relief of the bail in such cases is, on motion, addressed to the favor of the court; and relief is granted, upon such terms as the circumstances of the case will warrant; and always upon payment of the cost of the suit against the bail. No stronger case upon this point can be put, than that of Davidson n. Taylor, decided in this court, 12 Wheat. 604. “This,” say the court, “is a case of bail, and is to be decided by the principles of English law, which, the case finds, constitute the law and practice of Maryland on the subject. According to these principles, the allowance of the bail to surrender the principal, after the return of a capias ad satisfaciendum, is considered as matter of favor and indulgence, and not of right; and is regulated by the acknowledged practice of the court. To many purposes, the bail is considered as fixed by the return of the capias ad satisfaciendum; but the court allow the bail to surrender the principal, within a limited period after e return of the scire facias against them, as matter of favor, and not as matter pleadable in bar. In certain cases, even a formal surrender has not een required, when the principal was still living and capable of being sur-en ered, and an exoneretur could be entered, and the principal discharged immediately on the surrender ; but the rule has never been applied to cases 9 Pet,—-16 241 369 SUPREME COURT Beers v. Haughton. [Jan’y where the principal dies before the return of the scire facias. In such a case, the bail is considered as fixed by the return of the capias ad satisfaciendum; and his death afterwards, and before the return of the scire facias, does not entitle the bail to an exoneretur ; the plea, is, therefore, bad.” This case would seem to put at rest the question as to the manner in which the bail is to avail himself of any matter Which entitles him to relief, when application is made after the return of the capias ad satisfaciendum—that it must be by motion, and not by plea in bar. But if this was pleadable, the plea now in question is defective. It does not allege a surrender of the principals, nor that an exoneretur has been entered. * *It may be admitted, that the bail would have been entitled to J relief, on motion to the court for that purpose. But this will not sustain the plea, according to the doctrine of the case just referred to, of Davidson v. Taylor. But it may be questionable, whether the bail would have been relieved in this case, on motion. Such an application is seldom, if ever, granted, unless the matter upon which the motion is founded arose before the bail is fixed in law ; viz., before the return of the capias ad satisfaciendum. 1 Caines 10. In this case, one of the principals was not discharged, until several months after the return of the capias ad satisfaciendum ; and this appears upon the record. In the case of Olcott v. Lilly, 4 Johns. 408, Chief Justice Kent says, there is no case in which the death of the principal, after the return and filing of the capias ad satisfaciendum, has .been allowed as ground for the relief of the bail. All the cases agree, that after the bail are fixed, de jure, they take the risk of the death of the principal ; the attempt for relief has frequently been made, and as often denied. That the time which is allowed the bail ex gratid, is at their peril, and they must surrender. That there are many cases where the bail have been relieved on motion ; but in these cases, the event upon which the bail has been relieved happened before the bail became fixed. That, in cases of insolvency, time has been allowed the bail ex gratid to surrender, to prevent circuity of action ; but there is no intimation that such insolvency could be pleaded in bar. Indeed, its being allowed ex gratid, according to the language of all the cases, is conclusive to show, that it could not be pleaded as a legal discharge of the bail. In the case of Cheetham n. Lewis, 2 Johns. 104, the surrender was within eight days after the return of the writ against the bail, and the court ordered an exoneretur ; saying, that, technically speaking, such surrender cannot be pleaded, and so is not de jure; the relief is on motion and not by plea, and the court always requires the costs in the suit on the recognisance to be paid. The same doctrine is fully settled in the English courts. In the case of Donnelly n. Dunn, 1 Bos. & Pu . 448, the position is laid down broadly, that bail cannot plead the bankruptcy and certificate of their principal in their own discharge. Lord Eldon, however, observed, that they did not mean to preclude any application for sum-mary relief on the part of the *bail. The same case came again ■* before the court, after leave to amend the plea, had been obtaine , 2 Bos. & Pul. 45, and was very analogous in its circumstances to the one now before this court. It was an action of debt on recognisance of bail; an t e defendant pleaded the bankruptcy of the principal, very circumstantia y^ to which there was a general demurrer and joinder. In support o 242 1835] OF THE UNITED STATES. Beers v. Haughton. plea, it was contended, as it has been in the case now before the court, that if the bankruptcy and certificate was a legal discharge of the principal, it was also a legal discharge of the bail, and if so, may be pleaded. To this it was answered, that the plea of bankruptcy could only be interposed by the bankrupt himself ; and the bail, if entitled to any relief, must obtain it by application to the summary jurisdiction of the court; and this principle was sanctioned by the court. Lord Eldon said, we do not mean to preclude any application for summary relief on the part of the bail; but on this record, judgment must be given for the plaintiff. That the plea of bankruptcy is given to the bankrupt, to be made use of as the means of discharging himself, if he please ; but there may be cases in which the bankrupt may not choose to make use of his certificate. And he cannot, through the medium of his bail, be obliged to make use of his certificate, whether he will or not. It is the duty of the bail, under their recognisance, to surrender the bankrupt; and it remains with the bankrupt himself, to determine whether any use shall be made of the certificate. And Mr. Justice Buller observed, that it is of importance to the public and to the profession, to put an end to attempts to introduce upon the record questions of practice, which cannot be considered as legal defences ; but which belong to what may be called the equity side of the court. This action is brought for a legal demand, arising upon a debt of record, and the defendant is called upon to state a legal defence upon record, and not merely to say he has equity in his favor. He must either show a legal impossibility to perform the condition of the recognisance, or state something that will discharge him ; and he has done neither. These cases are abundantly sufficient, to show that it is a well-settled rule of law, that the bail cannot set up by plea in bar, the matter contained in the plea now in question. But if *available at all, it must be by motion. It is true, as is said in Mannin v. Patridge, 14 East 599, the bail are not completely and definitively fixed, by the return of the capias ad satisfaciendum. They have, by the indulgence of the court, time to surrender the principal, until the appearance-day of the last scire facias. But this was an application for relief on motion, and addressed to the favor and indulgence of the court; and no intimation is given, that it might be pleaded as matter of right. And it is not, I believe, pretended, that any rule of court had or could authorize such matter to be pleaded. The relief of bail, by the surrender of their principal is matter of practice, and may be regu-ated by rules of court. And the acts of the legislature of Ohio, or the decisions of their courts on the subject, can have no binding force on the courts of the United States, or regulate their practice, any further than they ave been adopted by the court. And I do not understand, that any rule 0 the circuit court professes to do more than extend the time for the surrender, until the return-day of a second scire facias against the bail. But e mode of relief, after the bail are fixed in law, must be by an application o tne favor of the court; and cannot, if the cases to which I have referred e aw, be pleaded in bar. The cases of Wayman n. Southard, and the and^ United States v. Halstead, 10 Wheat., establish, most clearly . exphcitly, that a state legislature cannot, by virtue of any original of ^°Wer they ^ave, arrest or control the proceedings of the courts c United States; or regulate the conduct of the officers of the United 243 372 SUPREME COURT [Jan’y Beers v. Haughton. States in the discharge of their duty. The doctrine of this court always has been, that executions issuing out of the courts of the United States, are not controlled or controllable, in their general operation and effect, by any collateral regulations which the state laws have imposed on the state courts to govern them. That such regulations are exclusively addressed to the state tribunals, and have no efficacy on the courts of the United States, unless adopted under the authority of the laws of the United States. And it appears to me, that by no sound and just construction of the act of congress of 1828, can the insolvent law of Ohio be considered as adopted by it; or as giving the circuit court the power to adopt it by rule of court, without overruling the case of Ogden v. Saunders ; *nor without giving to the J term “ proceedings,” a meaning not warranted in common parlance, or in legal acceptation. But whatever might have been the power of the circuit court to relieve the bail in this case, on motion; if such application had been made ; I feel great confidence in saying, that the bail cannot avail himself of the matters set up, by way of plea in bar to the action ; and that the plaintiff was entitled to judgment upon the demurrer. Baldwin, Justice. (Dissenting^)—As I fully concur in opinion with Judge Thompson, in all the views which he has taken of this case, it would be unnecessary for me to do more than express such concurrence ; but the course of adjudication which has prevailed in the circuit court of Pennsylvania, on the subject of the insolvent laws of the states of the Union, since April 1831 ; renders it indispensable for me to do more than declare my dissent to the opinion of the court. In the case of 'Woodhull and Davis n. Wagner, the defendant had been discharged by the insolvent law of Pennsylvania ; after which he was arrested on a capias ad satisfaciendum from the circuit court, on a judgment obtained there. An application was made for his discharge, which was refused by the court; and he was remanded to custody, on the ground, that the debt, being payable in New York, and the plaintiffs citizens of that state, when the debt was contracted, and when the defendant was discharged by the insolvent law of Pennsylvania, such discharge was wholly inoperative. Similar cases have since occurred, in which that court held the law to be settled, and do not suffer the question to be argued. In coming to, and for four years adhering to, this course of adjudication, the judges of that court did not act on their own opinion ; they considered the law to have been settled by the final judgment of this court in Ogden y. Saunders, 12 Wheat. 369 ; and the case of Shaw n. Dobbins, referred to in the note to the former case ; and as the rule on which we proceeded was laid down by the authority of this court, we felt bound to observe an enforce it, whatever may have been our views of it, as individual judges, or as a circuit court. But in so doing, we did not consider it as a question o *practice, the form and mode of proceeding in court, or the mere J execution of its final process. We examined it as one of constitu tional law, directly involving the power of the states, to affect in any manner the rights of citizens of other states, in enforcing the performance of con tracts in the circuit courts of the United States. And when we found t a the third proposition laid down by Judge Johnson, in Ogden v. Saun ers, was considered as the established rule of this court, we at once subnutte 0 244 18$$] Of THE UNITED STATES. 374 Beers v. Haughton. its obligation as a guide to our judgment. The declaration of Judge Stoby, in delivering the opinion of the court in Boyle v Zacharie and Turner, 6 Pet. 643, was a direct affirmance of the proposition of Judge Johnson ; from which no member of the court dissented ; nor from the concluding paragraph of the sentence—“ So far, then, as decisions upon the subject of state insolvent laws have been made by this court, they are to be deemed final and conclusive.” The third proposition of Judge Johnson, thus adopted as a principle of constitutional law, finally and conclusively, is this :—“ But when, in the exercise of that power, the states pass beyond their own limits and the rights of their own citizens, and act upon the rights of citizens of other states ; then arises a conflict of sovereign power, and a collision with the judicial powers granted to the United States, which renders the exercise of such a power incompatible with the rights of other states and with the constitution of the United States.” A more important principle of constitutional law was never presented for the consideration of any judicial tribunal; and when, three years since, it was solemnly declared by this court, that it was to be deemed as one which had become by its decisions final and conclusive, the circuit court of Pennsylvania did not feel at liberty to depart from it, but followed it as a prescribed rule enjoined on their observance by paramount authority ; deeming it their judicial duty. That court could not consider, that the effect of a discharge by the insolvent law of Pennsylvania, on a debt due to a citizen of New York, and payable there, depended on a rule of court which it could make and unmake, at its discretion, from time to time, as a matter of practice. With the cases of Ogden v. Saunders, Shaw v. Bobbins, and Boyle v. Zacharie, before them, they could not judicially *consider the question in any other respect, than that so solemnly declared by this L court; presenting a conflict of sovereign power, a collision with the judicial powers of the Union, and an exercise of a state power incompatible with the rights of other states, and with the constitution of the United States. When the final and conclusive decisions of this court had declared the law obnoxious to such objections, the circuit court had but one course to pursue to declare it inoperative, by the supreme law of the land ; which is as imperative on courts, as suitors, not as a guide to their discretion, but as the standard rule to direct their judgment. A circuit court may be holden by a judge of this court, or, in his absence, by the district judge alone ; and either has the same power to make rules of court, as both together. The question is simply this : The constitution—the rights of other states—the judicial powers granted to the United States as eclared by this court, are violated by a state insolvent law. Yet a circuit court adopts, by a rule of its own, that state law, as the rule of its decision, and renders a judgment according to its provisions; and this is the case e ore us. The plaintiffs are citizens of New York ; the defendants citizens o Ohio, sued in the circuit court of that district; by whose judgment the e endant is released from the obligation of this contract, as special bail; so e y by the operation of a law of Ohio adopted by a rule of court, when, t e absence of such a law, he would be absolutely bound to pay the debt enaanded from him. That judgment is now affirmed by this court, on eir construction of acts of congress, whose titles are, to regulate processes 245 M5 SUPREME COURT [Jan’y Beers v. Haughton. in the courts of the United States; and the enacting clauses of which are confined to the “ forms of mesne process,” the forms and modes of “ proceedings in the courts of the United States,” to writs of execution “ and other final processes, and the proceedings thereupon.” A law which the legislative power of a state is incompetent to pass, because it is unconstitutional and void, without a rule of court, has become valid and operative, by the potency of judicial power, exercised by any judge, at his mere discretion. Thus removing all conflicts of sovereign power by the exercise of one, which becomes practically paramount to the final and conclusive decisions of this court, the rights of other states, and the constitution of the United States, as judicially expounded. The judgment now rendered ad- -* mits of no other conclusion ; and as I cannot admit, for a moment, the principle, that the power of congress, if brought to bear directly, by its most explicit enactments, on this subject, is competent to cure the objections of this law, which are fastened on its vitals by the adjudications of this court, in the cases alluded to; I cannot admit, that they do it by the construction of a law which does not profess to touch the questions necessarily involved in this case ; still less, that it can be done by the rule of a court subordinate to the appellate jurisdiction of this. If a state law is incompatible with the constitution of the Union, it must be inoperative, until the constitution is amended. The legislative and judicial power combined, cannot cure a defect which the supreme law of the land declares to be fatal to a state law ; and when, by the solemn judgment of this court, it is declared, that a state law, adopted by a rule of the circuit court, is the rule of both right and remedy, in a suit between a citizen of New York, plaintiff, and a citizen of Ohio; I am judicially bound to consider, that it is not open to any objections stated in the third proposition of Judge Johnson, in Ogden n. Saunders ; or that that case, with that of Shaw v. Robbins, and Royle v. Zacharie, are now overruled. As the case on the record does not admit of the first alternative, but is directly, on its four corners, obnoxious to those objections, the inevitable result is, that the affirmance of this judgment may be taken to be the latter. The consequence is, that the effect of state insolvent laws on the citizens of other states is, for the present, an open one in the courts of the states, and o the United States, notwithstanding any former decisions of this court in t e cases referred to. So I shall consider it here, and in the circuit court, an answer to the profession and suitors for past errors, as those of adoption, • not from choice, but a sense of judicial duty; and being now absolved from an authority heretofore deemed binding, shall act, for the future, on princip e. That a paramount authority, prescribing a rule for my judgment, canno leave my discretion uncontrolled ; when my judgment is free, my discretion is not bound ; and that what, in the exercise of my best judicial discretion, I feel bound to do, in pronouncing the judgments of a circuit court, accor ing to my deliberate conviction on the law of the case, I cannot un o or * hhi avoid doing, by any *rule of my own, in the adoption, construe ion 4 J or revocation of which, my discretion is my only guide. This cause came on to be heard, on the transcript of the record rom the circuit court of the United States for the district of Ohio, an w 246 1835] OF THE UNITED STATES. 377 United States Bank v. Waggener. argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed, with costs. *Bank of the United States, Plaintiffs in error, v. Herbert [*378 G. Waggener, George Wagley and Alexander Miller. Usury. The office of the Bank of the United States, at Lexington, Kentucky, in February 1822, held a large amount of notes of the Bank of Kentucky, which had been received in the usual course of business, at the full value expressed on their face, as equivalent to gold and silver, and were so considered by the bank; on the amount of these notes so held, the Bank of Kentucky had agreed to pay interest, at the rate of six per centum, until the same should be redeemed; all the notes of the Bank of Kentucky, held by the Bank of the United States, were finally paid with the interest. In February 1822, when the notes of the Bank of Kentucky were at a depreciation of between thirty-three and forty per cent., Owens applied to the office of the Bank of the United States, for a loan of $5000 of the said notes, saying they would answer his purpose as well as gold or silver; after repeated refusals and re-applications, with the consent of the board of directors of the Bank of the United States, at Philadelphia, the sum of $5000, in the notes of the Bank of Kentucky, was loaned to him, on a promissory note, signed by him, and by Waggener, Miller and Wagley, payable in three years, with interest, at the rate of six per cent, per annum ; the money so loaned was paid to the borrower in the notes of the Bank of Kentucky, and in a check on that bank ; and the interest on that amount of the notes, being so much of the sum due by the Bank of Kentucky to the Bank of the United States, ceased from the date of the loan. In an action on the note given by Owens and others, the defence was set up, that the transaction was usurious, contrary to the charter of the Bank of the United States, and void: Held, that there was no usury in the transaction. The statute of usury of Kentucky of 1798, declares, that all bonds, notes, &c., taken for the loan of money, where “ is reserved or taken ” a greater rate of interest than six per cent, shall be void. In this case, no interest at all was taken, the interest being payable at the termination of three years mentioned in the note; and if the case be brought within the statute, it must be, not as a taking, but as a reservation, of more than legal interest. The ninth article of the fundamental articles of the charter of the Bank of the United States, declares, among other things, “ that the bank shall not be at liberty to purchase any public debt whatsoever, nor shall it take more than at the «rate of six per centum per annum, for or on its loans or discounts.” It is clear, that the present transaction does not fall within the prohibition of dealing or trading, in the preceding part of the same article; according to the interpretation thereof given by this court in the case of Fleckner v. Bank of United States, 8 Wheat. 338, 351, to which the court deliberately adhere. The words of the article are, that the bank shall not take (not, shall not reserve or take) more than at the rate of six per cent. In the construction of statutes of usury, this distinction between the reservation, and the *taking, of usurious interest, has been deemed very r*g^ material; for the reservation of usurious interest makes the contract utterly void; but L if usurious interest be not stipulated for, but only taken afterwards, then the contract is not void, and the party is only liable for the excess. In the case of the Bank of the United States v. Owens, 2 Pet. 527, 538, it was said, that in the charter, the word “ reserving ” must be implied in the word “ taking.” This expression of opinion was riot called for by the certified question which arose out of the plea; for it was expressly averred in the plea, that in pursuance of the corrupt and unlawful agreement therein stated, the bank advanced and loaned the whole consideration of the note, after deducting a large sum for discount, in the notes of the Bank of Kentucky, at their nominal value. The case of the Bank of the United States v. Owens, 2 Pet. 527, turned upon considerations essentially different from those presented in the present record. The questions certified in that case, arose upon a demurrer to a plea of usury; and the demurrer, in terms, admitted that the agreement was unlawfully, usuriously and corruptly entered into ; so that no question as to the intention of the parties, or the nature of the transaction, was put; the transaction was usurious 247 3^ SUPREME COURT [Jan’y United States Bank v. Waggener. and the agreement corrupt; and the question there was, whether, if so, it was contrary to the prohibitions of the charter, and the contract void. In the present case, the questions are very different; whether the agreement was corrupt or usurious ; or bond fide, and without any intent to commit usury, or to violate the charter, are the very points which the jury were called upon, and under the instructions, were asked, to decide; the decision in 2 Pet, 527, cannot, therefore, be admitted to govern this; for the quo animo of the act, as well as the act itself, constitute the gist of the controversy. In construing the usury laws, the uniform construction in England has been, and it is equally applicable here, that to constitute usury, within the prohibitions of the law, there must be an intention, knowingly to contract for, and to take, usurious interest; for if neither party intend it, and act bond fide and innocently, the law will not infer a corrupt agreement. This principle would seem to apply to the charter of the bank; there must be an intent to take illegal interest; or, in the language of the law, a corrupt agreement to take it, in violation of the charter; the quo animo is, therefore, an essential ingredient in all cases of this sort. There has been no taking of usury, and no reservation of usury, on the face of this transaction. The case, then, resolves itself into this inquiry, whether, upon the evidence, there was any such corrupt agreement, or device or shift, to reserve or take usury; and none of these appear in the case. Because an article is depreciated in the market, it does not follow, that the owner is not entitled to demand or require a higher price for it, before he consents to part with it; he may possess bank-notes which to him are of par value, in payment of his own debts, or in payment of public taxes; and yet their marketable value may be far less ; if he uses no disguise, if he seeks not to cover a loan of money, under the pretence of a sale or exchange of them, but the transaction is bond fide what it purports to be; the law will not set aside the contract, for it is no violation of any public policy against usury.1 * -. Error to the Circuit Court of Kentucky. *The plaintiffs in error 380J instituted an action against the defendants, and one William Owens, on a promissory note for $5000, dated the 7th of February 1822, and payable at the office of the Bank of the United States, at Lexington, Kentucky, on the 7th of February 1825, with interest at the rate of six per centum per annum ; the defendants were joint and several promisors with Wilham Owens. Upon a plea and demurrer in the suit, a division of opinion was certified by the judges of the circuit court to this court, upon which the opinion of the court was given, as reported in 2 Pet. 527. Afterwards, at May term 1833, the case having been remanded, judgment was entered against William Owens, for want of a plea, and the other defendants pleaded the general issue ; upon which, the cause was tried by a jury, and a verdict and judgment, under the direction of the court, were given for the defendants. A bill of exceptions to the refusal of the court to give the instructions asked by the plaintiffs, and to those given by the court, at the request of the defendants, was tendered on ^behalf of the plaintiffs, and was sealed by the judges of the circuit court. The note declared on was in the following terms : “On or before the 7th day of February 1825, we, William Owens, Alexander Miller, Herbert G. Waggener, George Wagley, jointly and severally promise to pay to the president, directors and company of the Ban of the United States, at their office of discount and deposit at Lexington, the sum of five thousand dollars, in lawful money of the United States, wit interest thereon, in like money, after the rate of six per cent, per annum, from this day, until paid, for value received, at the said office of discoun 1 See notes to United States Bank v. Owens, 2 Pet. 527. 248 183^ OF THF VNlTFD STATES. 330 United States Bank v. Waggener. and deposit at Lexington, without defalcation. Witness our hands, this 7th day of February 1822. William Owens, Alexander Miller, Herbert G. Waggener, George Wagley.” Witness—John Breen.” On which note was the following indorsement : “ Mem.—Interest is to be charged on this note from the 21st day of May 1822, only, and not from the 7th of February *1822, within mentioned, the former being the day on which the amount was actually received by the makers of the L note. . H. Clay.” The evidence in the case established the following facts : Before the time when the note was given, the office of the Bank of the United States at Lexington, was the holder of a large amount of notes of the Bank of Kentucky, which had been received in the usual course of business^ at the full value of the notes expressed upon them, in gold and silver. These notes were considered as valuable to the full extent of their amount, although the Bank of Kentucky had suspended paying their notes in specie. No doubt was entertained by the officers of the office of the Bank of the United States, of the full ability of the Bank of Kentucky so to redeem them. At the time the loan was made to Owens on the note sued upon, the notes of the Bank of Kentucky had depreciated to the amount of between thirty-three and forty per cent. It was also in evidence, that when the Bank of Kentucky suspended specie payments, in 1819, the institution was considerably indebted to the plaintiffs, at the office at Lexington, for her notes taken in the usual course of business, and for government deposits transferred to that office from the Bank of Kentucky and its branches ; and that the accounts had been settled between the institutions, the balance ascertained and placed to the credit of the plaintiffs, on the books of the Bank of Kentucky, as a deposit upon which the Bank of Kentucky agreed, in consideration of forbearance of the plaintiffs, to pay interest at the rate of six per cent, per annum ; and that said interest, as it accrued, was carried, at stated intervals of time, to the credit of the plaintiffs, on the books of the bank ; and that the amount paid Owens on the said check had the effect of stopping the interest on that sum from that ime. The balance which remained due from the Bank of Kentucky to the . ank of the United States was finally settled and discharged, in specie or its equivalent, about seven months after the date or time of the said loan to Owens. The Bank of Kentucky did not, for many years after the date of e loan to Owens, generally resume the payment of its notes in specie or its equivalent. s^a^e things existing in 1822, William Owens applied *to "^e^ington, for a loan of 85000, in the notes of the Bank 0 entucky, assuring the bank that they would answer his purpose as well as gold or silver. The offer was rejected by the directors of the bank ; and on its renewal, was again refused. A third time, the loan was applied for, not ln^r^erence a gentleman connected with the business of the bank, a director, to procure it, was solicited and obtained ; and the application was referred to the board at Philadelphia, by which the loan was authorized, 249 382 SUPREME COURT [Jan’y United States Bank v. Waggener. a mortgage on real estate being given as an additional security for the loan. The mortgage and note having been executed, the amount of the same was paid to William Owens, by handing him $1100, in notes of the Kentucky Bank, and a check of that bank for $3900, which was paid to him at that bank in its notes. The defence to the action was, that the transaction was usurious ; and therefore, contrary to the act of congress incorporating the Bank of the United States, and void. On the trial, the following instructions to the jury were asked by the counsel for the plaintiffs. 1. That if they believed from the evidence, that the consideration of the note sued on was $3900, paid in a check on the Bank of Kentucky, and $1100 in Kentucky notes, and that the contract was fairly made, without any intention to evade the laws against usury ; but that the parties making the contract intended to exchange credits, for the accommodation of Owens ; that the Bank of Kentucky was solvent, and so understood to be, and able to pay all its debts by coercion ; that the contract is not void for usury, nor contrary to the fundamental law or charter of the bank, notwithstanding it was known to the parties, that said bank did not pay specie for its notes, without coercion, and that the difference in exchange between bank-notes of the Bank of Kentucky and gold and silver, was from thirty-three to forty per cent, against the notes of the Bank of Kentucky. 2. To instruct the jury, that if they believe, from the evidence, that the contract was made on the part of the bank, fairly, and with no intention to avoid the prohibition of their charter, by taking a greater rate of interest than six per cent., or the statutes against usury, but at the instance, and for the accommodation and benefit, of the defendant Owens; and that at the *3831 ^me *negotiation and contract for the check on the bank, and -* the $1100 in bank-notes of the Bank of Kentucky, that bank was indebted to the Bank of the United States, at their office aforesaid, the sum of $10,000 or more, bearing an interest of six per cent., which sum, it was understood and believed by the parties to the contract, at and before its execution, the Bank of Kentucky was well able to pay, with interest, and which sum it did pay, after deducting the $3900, paid to the defendant Owens, with interest, in gold or silver, or its equivalent; that the contract was not usurious, unless they believed that the contract was a shift or device entered into to avoid the statute against usury, and the prohibition of tne charter, notwithstanding the jury should find that the check and notes aforesaid were, in point of fact, of less value than gold and silver. 3. If the jury find, from the evidence in the cause, that the defendants applied to the plaintiffs to obtain from them $5000 of the notes of the president, directors and company of the Bank of Kentucky; and in consideration of their delivering, or causing to be delivered, to the defendants, $5000 of such notes ; and the said Bank of Kentucky was then solvent and able to pay the said notes, and has so continued up to this time ; and that the holders thereof could, by reasonable diligence, have recovered the amount thereof, with six per centum per annum interest thereon, from the time of the delivery of them by plaintiffs to defendants, up to the time of such recovery, and that said arrangement and contract was not made under a device, or with the intent, to evade the statutes against usury, or to evade the law inhibiting the plaintiffs from receiving or reserving upon loans, interest at a 250 1835] OF THE UNITED STATES. 383 United States Bank v. Waggener. greater rate than six per centum per annum ; then the transaction was not in law usurious or unlawful, and the jury should find for the plaintiffs. 4. That unless the jury find from the evidence in the cause, that the advance, sale or loan of the notes on the Bank of Kentucky, made by plaintiffs to defendants, was so made as a shift or device to avoid the statute against usury, or in avoidance of the clause of the act of congress which inhibits the plaintiffs from taking of reserving more than at the rate of six per centum per annum for the loan, forbearance, or giving day of *pay-ment of money, the law is for the plaintiffs, and the jury should find accordingly. 5. That unless they believed, from the evidence in this cause, that there was a lending of money, and a reservation of a greater rate of interest than at the rate of six per centum per annum, stipulated to be paid by defendants to plaintiffs ; the law is for the plaintiffs, and the jury should find for them ; unless they further find, that there was a shift or device resorted to by the parties, with the intent and for the purpose of avoiding the law, by which something other than money was advanced, and by which a greater rate of interest than six per cent, was allowed. 6. That if the defendants applied to the plaintiffs for a loan of $5000 of the notes of the Bank of Kentucky, and agreed to give therefor their note for $5000, payable three years thereafter, with interest, and the Bank of Kentucky was then, and continued thereafter to be, solvent, and the said Bank of Kentucky did thereafter pay and discharge to the holders thereof the said notes, the said contract was not unlawful—although the notes of the Bank of Kentucky would not then command, in gold or silver, their nominal amount, when offered for sale or exchange as a commodity or money. 7. That if they found from the evidence, that the defendants obtained from the plaintiffs $5000 of the notes of the Bank of Kentucky, or $3900 in a check upon said bank and $1100 of its notes, and in consideration thereof made the note sued upon, the said transaction was not, therefore, unlawful or usurious—although the notes of the Bank of Kentucky were then at a depreciation in value of thirty-three per cent., in exchange for gold or silver. 8. That there was no evidence in this cause, conducing to prove, that there was a loan by the plaintiffs to the defendants of notes on the president, directors and company of the Bank of Kentucky. The court refused to give these instructions, and on motion of the defendants instructed the jury : “ That if they find from the evidence, that the only consideration for the obligation declared upon was a loan made by the plaintiffs to Owens, of $5000 in notes of the Bank of Kentucky, estimated at their nominal amounts, part paid in the notes themselves, and the residue *in a check drawn by the plaintiffs on the Bank of Kentucky, p on the understanding and agreement that the said Owens was to re- *-ceive the notes of said bank in payment thereof, and he accordingly did so ; at the Bank of Kentucky had, before that time, suspended specie pay-^ents, and did not then pay its notes in lawful money ; that the said notes en constituted a general currency in the state of Kentucky, commonly passing in business and in exchange at a discount of between thirty and forty per cent, below their nominal amounts, and could not have been sold or pas-Pr*ce 5 that the said facts were known to the plaintiffs and ai wens, yet the plaintiffs passed the said notes to the said Owens, the 251 985 SUPREME COURT [Jan’y United States Bank v. Waggoner. borrower, at their nominal amounts ; then the transaction was in violation of the act of congress incorporating the plaintiffs, the obligation declared on is void, and the verdict ought to be for the defendants.” The plaintiffs prosecuted this writ of error. Sergeant, for the plaintiffs in error, submitted the following printed argument. The errors assigned are : 1. That the court erred in giving the instructions prayed by the defendants. 2. That they erred in not giving the instructions prayed by the plaintiffs. The case presented and adjudicated by this court, in The Tank v. Owens, 2 Pet. 527, was essentially different from the case now submitted. There, unfortunately, the plaintiffs, by demurring to the defendant’s plea, admitted all the allegationsit contained, in their strongest sense, including the allegation of corrupt and usurious intention. In short, they confessed that the contract was properly characterized as corrupt, usurious, and in violation of the charter. The court were thus compelled to declare the law as applied to a contract thus alleged on one side, and confessed on the other, with all its offensive description, without the power of looking into the true merits of the case, and ascertaining whether the transaction was really such as it was represented to be. To this their decision was limited. * _ *The real state of the case is now brought before the court upon -* the evidence; from which it will be perceived, at once, that the injurious charges of the plea, so incautiously admitted by the demurrer, have no support whatever from the facts ; and that the judicial prejudice the bank has suffered, as well as the extensive prejudice in public opinion, are wholly unmerited. The transaction was innocent and just, entered into with the fairest intentions, upon a full and adequate consideration, and with no view to any gain by the bank, or any loss to Owens. The bank, literally, did not gain one cent by the negotiation ; it did not even gain the interest, for interest, at the same rate, was payable at the Bank of Kentucky. Neither did it, by the negotiation, convert capital that was dead, into active capital, a long credit being allowed. On the other hand, Owens did not lose. He declared, that what he received was, to him, equal to gold or silver ; and it must be taken for granted, that it proved to be so, for there is no evidence, nor even an allegation, to the contrary. It further appears, that t is negotiation was at the earnest instance of Owens, and for his accommo a tion. When he thought his own instances insufficient, he sought the ai of others, and especially applied to Mr. Clay, who was counsel of the ban , and to the late Colonel Morrison, who had been president of the office, to use their influence, as his friends, to aid him in obtaining what he as e . And finally, it appears that the application, from the beginning, was for t e notes of the Bank of Kentucky, which, to him, were equal to gold or si ver. These facts are conclusively proved by the depositions of the witnesses, and especially by the minutes of the office, and Mr. Cheves’s letter o 27th March 1822, in the record. . • The instruction given by the court was, that the “transaction was violation of the act of congress incorporating the plaintiffs, the o„ ga declared on is void, and the verdict ought to be for the defendant. s 252 1835] OF THE UNITED STATES. 386 United States Bank v. Waggener. instruction correct? This is the question, and the only question, in the case. The plaintiffs in error submit, that it is not. The words of the charter, are that, in its loans or discounts, *the bank shall not take more than at the rate of six per centum per L annum. ' The negotiation with Owens cannot, with any propriety (now that the evidence is disclosed), be termed “ a loan or discount,” within the meaning of this section of the act of congress. The language of the act is properly applicable to the lending of money, that is to say, gold or silver. It is very true, that borrowers seldom receive in gold or silver. They commonly take bank credits, or notes of the bank which makes the loan ; but these give a present right to demand gold or silver, and are taken by the borrower, for his own convenience, as the evidence that he has so much gold or silver in the bank. Here, there was no such loan. There was no discount, in the ordinary way of discounting; but a special agreement, the nature of which will be presently considered. The bank did not “ take more than at the rate of six per centum per annum.” If we look at the terms of the agreement, we find the rate of interest agreed upon was precisely six per centum per annum, neither more nor less. So particular was the learned counsel of the bank in observing precisely the spirit as well as the words of the charter, that he took care, by an indorsement on the note, to prevent the interest from beginning to run before the day when the consideration was actually received by Owens, which happened to be some time after the date of the note. The decision, however, in The, Bank v. Owens, 2 Pet. 527, rested entirely upon a position which admitted the express and apparent terms of the contract to be quite consistent with the provision of the act of congress already quoted. The position was, that it presented “ one of those cases in which a device is resorted to, by which is reserved a higher profit than the legal interest, under a mask thrown over the transaction.” This, the court say, is a fraud upon the statute, and “ a fraud upon a statute is a violation of the statute.” From this conclusion the court derive another, namely, that such a contract is entirely void, and no court will aid its being enforced. Upon the pleadings in the case just cited, this conclusion was deduced by the court, but even upon those pleadings, it was deduced with hesitation, only upon the authority of a case which decides, that “ the confession of the quo animo, implied *in a demurrer, will affect a case with usury.” r*$gg Immediately after, it is added by the court, “ a very similar case in ' the same book, in which the plaintiff had traversed the plea, was left to the jury with a favorable charge.” The decision of the court, therefore, turned entirely upon the quo animo averred in the plea, and admitted by the demurrer, and was confined entirely to a case so brought up, with a very strong intimation, that upon a traverse the result would be different. This plea has been withdrawn, and is no longer before the court. The unfortunate demurrer has gone along with it. In lieu of it, the general issue of non assumpsit has been pleaded, and issue joined thereon, which is at least as beneficial to the plaintiffs as a traverse of the former plea would have been. Such an issue presented to the jury the question of quo animo, w ich was closed up in the former case by the issue of law, and led to the ecision by this court. Upon the very principle, then laid down by this court, according to the authority of Bedingfield v. Ashley, Cro. Eliz. 741, 853 388 SUPREME COURT [Jan’y United States Bank v. Waggener. this question ought to have been left to the jury. The counsel of the plaintiffs asked for instructions to that effect, but the learned judge refused those instructions, and gave the instruction prayed by the defendant’s counsel, taking the inquiry from the jury, and deciding, as a question of law, that the contract was void. The plaintiff was entitled to have the whole question of intention, or quo animo, left to the jury ; and he was entitled to more, that is, to have it left to the jury, “ with a favorable charge.” Was there, or was there not, “ a device resorted to,” or “ a mask thrown over the transaction,” to disguise and cover an intention, scheme or plan, to violate or evade the charter, by taking more than lawful interest ? There could not be, unless such an intention existed. Was there, then, such an intention ? The evidence is full and clear, to show that there was not. The whole transaction was fair and bond fide, in the best good faith on the part of the bank, and with no disguise or concealment whatever. The court erred in not so leaving it to the jury. Mr. Sergeant also contended at the bar : 1. That the negotiation was at * the repeated instance of *Owens. The office twice declined his J application, and then he employed the influence of his friends, Mr. Clay and Colonel Morrison, to obtain an order from the parent board. 2. That, according to his own statement, the notes he received were to him equal to gold and silver ; he, therefore, sustained no loss. 3. That the bank gained nothing by the negotiaton. The notes were settled in account with the Bank of Kentucky, and were bearing interest ; there was no gain in interest ; there was no gain in time, but the contrary ; the notes would have been paid much sooner by the Bank of Kentucky. The bank did not even gain the advantage of converting dead capital into active capital; it had less activity than before.' 4. That the value of this paper was not to be ascertained by the value of paper in circulation. It was not in circulation ; it was held by agreement, as evidence of debt, bearing interest; which no note in circulation bears. 5. That upon a fair estimate, the debt of the Bank of Kentucky was at the time, and is now, fully proved to have been worth more than the debt for which it was exchanged. 6. That the negotiation on the part of the bank was innocent, and without intention of usury, or any unlawful profit. He then proceeded to argue, that there was error in the instruction given at the instance of defendants, and the refusal to give the instructions asked for by the plaintiffs in the court below. The court assumed, that the question was for the court, and as such, decided it as a question of. law; when it really was a question of fact and intention, to be decided by the jury. This is manifest from the former decision of this court, when the case came up, on demurrer. Bank n. Owens, 2 Pet. 527. There are two ways in which usury may be committed. 1. By agreeing for more interest than is allowed by law. 2. By some device which is a cover for the same thing. 1. The first may be decided by the court. This is the meaning of the ease of Roberts v. Trenayne, Cro. Jac. 50 7. It is apparent to the court, res ipsa loquitur. * _ 2* This is invariably a question for the jury. Ord on Usury 208, -* Massa v. Darling, 2 Str. 1243 ; Lowe n. Waller, 2 Doug. 736 ; 1 Esp-But it has been decided in the Bank v. Owens, that we are not to & 254 1835] OF THE UNITED STATES. 390 United States Bank v. Waggener. affected by the usury laws of the states. 1. Was this a violation of charter? 2. If it were, how are we affected by it ? 1. The charter meant only to fix the rate of interest on discounts ; but this was no discount at all. It was a specific negotiation, and that negotiation was an innocent one. The bank gave a full consideration, with no view to gain ; it did not gain. All its debt was paid in less than half the time. It was an exchange of credits. 2. The act is simply prohibitory. The effect, where there is nothing more, is only to relieve against the excess ; or to enable the party to recover it back. The statutes of usury declare the contract void ; but wherever the case is in the power of a court, either of law or equity, they compel the payment of principal and interest. A motion to set aside judgments upon the ground of usury, was refused in the exchequer. Mathews v. Lewis, 1 Aust. 7 ; Ord 118. If one voluntarily pay the money and legal interest, he cannot recover it back if more, only the excess. Astley v. Reynolds, 2 Str. 915 ; Ord 118-19. So, if he sue for a pledge or security. Fitzroy n. G-willim, 1 T. R. 153. So, in equity, before a party can get relief, he must pay the money and lawful interest. Bosanquett n. Dashwood, Cas. temp. Talb. 38. Cited also, Ord on Usury 141 ; Barnard v. Langley, Toth. 117 ; Proof v. Hines, Cas. temp. Talbot 111 ; Scott n. Nesbitt, 2 ^ro. C. C. 641 ; Ord 143-6 ; Taylor v. Bell, 2 Vern. 170 ; Barker v. Vansommer, 1 Bro. C. C. 149. The rule is the same in Pennsylvania. The same principle has been established in this court. Bank of the United States v. Fleckner, 8 Wheat. 355. The cases to the contrary are against public morals, or against some great public policy, mostly involving a misdemeanor, and criminally offensive. On either ground, the plaintiffs in error are entitled to have the judgment reversed. *A printed argument, prepared by Messrs. Crittenden and Monroe, ri! counsel for the defendants in the circuit court, was delivered to the court. They contended, that upon the case presented in the record, the only questions that can arise, relate to the propriety of the decision of the court, in giving the instruction asked on the part of the defendants and in refusing those asked on the • part of the plaintiffs. All these questions depend on the proper construction and application of that part of the ninth section of the fundamental rules of the bank-charter, which declares that the bank shall not “ take more than at the rate of six per centum per annum, for or upon its loans or discounts.” First, then, as to the propriety of the instruction given at the instance of the defendants. The usury laws of Kentucky, like the charter of the bank, forbid the taking of a greater interest than six per cent, per annum upon loans ; and it has been repeatedly decided by the court of appeals of that state, that the lending of depreciated bank paper, and taking the bond or note of the borrower for its nominal amount in specie, with legal interest only, is usurious, and a plain and direct infraction of the statute forbidding h more than six per centum per annum. Freeman n. Brown, T. B. Monr. 263 ; Rodens Executors n. Bush, 5 Ibid. 477 ; Boswell v. larkson, 1 J. J. Marsh 47. That court has invariably proceeded on the principle, that the current value of the depreciated paper, at the time of 255 I 'I - I 391 SUPREME COURT. [Jan’y United States Bank v. Waggener. lending and borrowing, was to be considered its real value ; and that if the payment stipulated for by the borrower, exceeded the amount of the current value of the depreciated paper at the time, and legal interest thereon, that it was against law, and usurious. The lender who receives an interest of six per cent, upon a greater sum than he actually lends, is most clearly, we think, as much and as directly a violator of the law, as he who reserves more than six per cent, upon the sum actually loaned. The facts on which this instruction is predicated, are incontestably established by the evidence ; and the legal conclusions drawn from them, as stated in said instruction, are confidently believed to be correct, and to be maintained by the decision of this court, upon this case, when #QQ0-| formerly before it. The *facts on which this instruction is founded J are the same, in effect, that were alleged in the plea that was then decided to be a good and sufficient bar to the action. We conclude, therefore, that this instruction is proper, and according to law. Secondly, as to the instructions moved on the part of the plaintiffs, and refused by the court: we contend, that they are all either impertinent, as having no application to the case as it appears in proof; or that they are embraced and negatived by the considerations and authorities urged in support of the instruction given at the instance of the defendants. That the refusal of them was correct, and could not prejudice the plaintiffs. The uncontested facts make an apparent case of usury. The application of Owens was for a loan—a loan was made to him of $5000, in Kentucky Bank paper, depreciated between thirty-three and forty per cent. And for the nominal amount of this paper, the note in question was taken, payable in lawful money of the United States, with six per centum interest thereon. About these facts, there can be no dispute. They make, per se, a case of usury, and “cannot by intendment have any other construction” res ipsa loquitur. Roberts n. Trenayne, Oro. Jac. 508. Yetto give it some “other construction,” by one “intendment” or other, is the object of all the instructions moved on the part of the plaintiffs, that are applicable to the case. In the case above referred to in Oroke, the distinction is taken between cases where usury is apparent from the circumstances, and where it is only “ implied.” Here, from indisputable facts stated, it is apparent, that the plaintiffs, by the note in suit, have attempted to secure to themselves a much greater amount than the value which they loaned, and six per centum interest thereon. This is not the evidence of usury, it is usury itself. An its legal character and effect cannot be changed oi' evaded, by any fairness of mere intention, that may be ascribed to the lender. It is manifest, that the plaintiffs did intend to do, and did in fact do, everything necessary to constitute an usurious loan ; that they did take more than at the rate of six per centum per annum upon this loan to Owens ; and did intend to do a *3931 *^ey did d° ; it was, therefore, in vain for them to allege afterwar s, -* they did not intend to violate the law. No error of the officers of the bank, as to the effect of the transaction under the law, can give validity to the paper taken in violation of the aw. Their supposition, that the loan of depreciated paper, at its nominal amoun , to be repaid in lawful money, with interest upon it, was authorized by t eir charter and lawful, could not make it so. Where there was a controversy 266 1835] OF THE UNITED STATES. 393 United States Bank v. Waggener. as to what the transaction was, in fact, the intention of the parties may have effect in determining its character ; but when the fact, and intention to do what was acted, are manifest, the law is only to be appealed to, for the effect and consequences. Here, that the transaction was a loan is unquestionable; and the instruction given by the court is predicated on this, together with the other facts, to be found by the jury. The conclusion of law pronounced by the court was inevitable. Story, Justice, delivered the opinion of the court.—This is a writ of error to the circuit court of the district of Kentucky, to revise a judgment of that court, in a case where the plaintiffs in error were original plaintiffs in the suit. The suit was an action of debt brought upon a promissory note, dated the 7th of February 1822, whereby the defendants, on or before the 7th of February 1825, jointly and severally promised to pay the president, &c., of the Bank of the United States, at their office of discount and deposit, at Lexington, $5000, with interest thereon, after the rate of six per cent, per annum, until paid, for value received. And by a memorandum on the back of the note, the interest was to be charged only from the 21st of May 1822, that being the day on which the money was actually received by the makers of the note. The plea of payment was put in, upon which issue was joined ; and it was agreed between the parties, that either party, nnder the issue, might give in evidence any special matter which could be specially pleaded. At the trial, a verdict was rendered for the defendants, upon which, judgment-passed in their favor ; and the cause is now brought before us for revision, upon a bill of exceptions taken at the trial, and lor matters of law therein stated. *From the evidence at the trial, it appears, that prior to the time when the note was given, viz., in 1819, the Bank of Kentucky, which L had previously been in high credit, suspended specie payments; and at that time, the institution was indebted to the plaintiffs, the Bank of the United States, in a large sum of money, for notes of the Bank of Kentucky, taken at par, in the usual course of business, and for government deposits transferred to the office at Lexington, from the Bank of Kentucky and its branches. The accounts had been settled between the two institutions, the balance ascertained and placed to the credit of the plaintiffs, on the books of the Bank of Kentucky, as a deposit; upon which the Bank of Kentucky agreed, upon consideration of forbearance, to pay interest at the rate of six per cent, per annum ; and the interest, as it accrued, was carried, at stated intervals, to the credit of the plaintiffs, on the books of the bank. This agreement was punctually performed by the Bank of Kentucky, and the a ance, which remained due to the plaintiffs, was finally settled and dis-o arged in specie, or its equivalent, in about seven months after the negotia-ion, which will be immediately noticed. In this state of things, Owens, one of the defendants, made repeated applications to the Lexington office of the Bank of the United States, for an accommodation of $5000, in Kentucky Bank notes, of which the office a a considerable sum on hand, stating that such notes would answer his pnrpose as well as gold or silver, and agreeing to receive them at their nominal amounts. These applications were rejected; and finally, at his 9 Pet.—17 257 394 SUPREME COURT [Jan’y United States Bank v. Waggener. urgent suggestions, an application was made to the parent bank at Philadelphia, to permit the Lexington office to grant the application; and the parent bank accordingly gave the permission. The note now in suit was accordingly given, with a mortgage of real estate, as collateral security; and $1100 was received in Kentucky Bank notes, and the remaining $3900 was paid by a check drawn on the Bank of Kentucky, which was duly honored ; the amount of the check was deducted from the balance due to the plaintiffs, and interest thereon immediately ceased. It further appeared, at the trial, that the Bank of Kentucky was never insolvent, but had always sufficient effects to pay its debts; that it had been several times sued for its debts, which *had been always paid in -• specie, or other arrangements had been made satisfactory to the creditors. It had discharged the greater part of its debts, and had distributed among its stockholders ten dollars in specie and seventy dollars in notes of the Commonwealth Bank of Kentucky (which were at a great depreciation), and that all its funds had not yet been distributed. The Bank of Kentucky never resumed specie payments, and at the time of the negotiation above stated, the notes were depreciated from thirty-three to forty per cent., and were current as a circulating medium at this rate of depreciation. They were, however, by law, receivable for state taxes and county levies at par, and had accordingly been so received. Upon this evidence, the plaintiffs moved the court to instruct the jury as follows: 1. That, if they believe from the evidence, that the consideration of the note sued on was $3900, paid in check on the Bank of Kentucky, and $1100 in Kentucky Bank notes ; and that the contract was fairly made, without any intention to evade the laws against usury, but that the parties making the contract intended to exchange credits, for the accommodation of Owens, that the Bank of Kentucky was solvent, and so understood to be, and able to pay all its debts by coercion, that the contract is not void for usury, nor contrary to the fundamental law or charter of the bank, notwithstanding it was known to the parties that said bank did not pay specie for its notes without coercion, and that the difference in exchange between bank-notes of the Bank of Kentucky, and gold and silver, was from thirty-three to forty per cent., against the notes of the Bank of Kentucky. 2. To instruct the jury that, if they believe from the evidence, that the contract was made on the part of the bank fairly, and with no intention to avoid the prohibition of their charter, by taking a greater rate of interest than six per cent., or the statutes against usury, but at the instance, and for the accommodation and benefit, of the defendant Owens ; and that at the time of the negotiation and contract for the check on the bank, and the $1100 in bank-notes of the Bank of Kentucky, the Bank of Kentucky was indebted to the Bank of the United States, at their office aforesaid, the sum of $10,000 or more, bearing an interest of six per cent.; which sum, *it was understood and believed by the parties to the contract, at an before its execution, the Bank of Kentucky, with interest, was we able to pay, and which sum it did pay, after deducting the $3900 paid to the defendant Owens, with interest, in gold or silver, or its equivalent, that the contract was not usurious, unless they believe that the contract was a shift or device entered into to avoid the statute against usury, and t e prohibition of the charter, notwithstanding the jury should find, t a 258 1835] OF THE UNITED STATES. 396 United States Bank v. Waggener. the check and notes aforesaid were, in point of fact, of less value than gold and silver. 3. If the jury find *from the evidence in the cause, that the defendants applied to the plaintiffs to obtain from them $5000 of the notes of the president, directors and company of the Bank of Kentucky, and in consideration of their delivering, or causing to be delivered, to the defendants, $5000 of such notes, and the said Bank of Kentucky was then solvent and able to pay the said notes, and has so continued up to this time; and that the holders thereof could, by reasonable diligence,have recovered the amount thereof, with six per centum per annum interest thereon, from the time of the delivery of them by plaintiffs to defendants, up to the time of such recovery, and that said arrangement and contract was not made under a device, or with the intent, to evade the statutes against usury, or to evade the law inhibiting the plaintiffs from receiving or reserving upon loans, interest at a greater rate than six per centum per annum j then the transaction was not in law usurious or unlawful, and the jury should find for the plaintiffs. 4. That unless the jury find, from the evidence in the cause, that the advance, sale or loan of the notes on the Bank of Kentucky, made by plaintiffs to defendants, was so made as a shift or device to avoid the statute against usury, or in avoidance of the clause of the act of congress, which inhibits the plaintiffs from taking or reserving more than at the rate of six per centum per annum for the loan, forbearance, or giving day of payment of money, the law is for the plaintiffs, and the jury would find accordingly. 5. That unless they believe, from the evidence in this cause, that there was a lending of money, and a reservation of a greater rate of interest than at the rate of six per centum per *annum, stipulated to be paid by ™ . defendants to plaintiffs, the law is for the plaintiffs, and the jury ■-should find for them ; unless they further find, that there was a shift or device resorted to by the parties, with the intent and for the purpose of avoiding the law, by which something other than money was advanced, and by which a greater rate of interest than six per cent, was allowed. 6. That if the defendants applied to the plaintiffs for a loan of $5000 of the notes of the Bank of Kentucky, and agreed to give therefor their note for $5000, payable three years thereafter, with interest, and the Bank of Kentucky was then, and continued thereafter to be, solvent, and the said Bank of Kentucky, did thereafter pay and discharge to the holders thereof the said notes, the said contract was not unlawful, although the notes of the ank of Kentucky would not then command, in gold or silver, their nominal amount, when offered for sale or exchange as a commodity or money. - That if they find from the evidence that the defendants obtained from e plaintiffs $5000 of the notes of the Bank of Kentucky, or $3900 in a check upon said bank, and $1100 of its notes, and in consideration thereof, made e note sued upon, the said transaction was not, therefore, unlawful or usurious, although the notes of the Bank of Kentucky were then at a depre-Cla 1011 value of thirty-three per cent, in exchange for gold and silver. 8. That there is no evidence in this cause, conducing to prove, that there ^as a loan by the plaintiffs to the defendants, of notes on the president, ^Th018 an<^ comPany of the Bank of Kentucky. e court refused to give any of these instructions ; and upon the P ayer of the defendants, instructed the jury as follows : “ That if they 259 897 SUPREME COURT United States Bank v. Waggener. [Jan’y find from the evidence, that the only consideration for the obligation declared upon was a loan made by the plaintiffs to Owens of $5000, in notes of the Bank of Kentucky, estimated at their nominal amounts, part paid in the notes themselves, and the residue in a check drawn by the plaintiffs on the Bank of Kentucky, on the understanding and agreement that the said Owens was to receive the notes on said bank in payment thereof, and he * _ accordingly did so ; that *the Bank of Kentucky had, before that J time, suspended specie payments, and did not then pay its notes in lawful money; that the said notes then constituted a general currency in the state of Kentucky, commonly passing in business and in exchange, at a discount of between thirty and forty per cent, below their nominal amounts, and could not have been sold or passed at a higher price ; that the said facts were known to the plaintiff and said Owens, yet the plaintiffs passed the said notes to the said Owens, the borrower, at their nominal amounts; then the transaction was in violation of the act of congress incorporating the plaintiffs, the obligation declared on is void, and the verdict ought to be for the defendants.” The statute of usury of Kentucky of 1798, declares, that no person shall hereafter contract, directly or indirectly, for the loan of any money, wares, merchandise or other commodity, above the value of six pounds for the forbearance of one hundred pounds for a year, and after that rate, for a greater or lesser sum, or for a longer or shorter time ; and all bonds, contracts, &c., thereafter made for payment or delivery of any money or goods so lent, on which a higher interest is reserved or taken than is hereby allowed, shall be utterly void. This clause of the act is substantially a transcript of the statute of 12 Ann., stat. 2, c. 16, § 1, and therefore, the same construction will apply to each. In the present case, no interest at all has been taken by the plaintiffs on the $5000. There was no discount of the accruing interest from the face of the note, and the interest was payable only with the principal, at the termination of the three years mentioned in the note. If the case, therefore, can be brought within the statute, it must be, not as a taking, but as a reservation, of illegal interest. The ninth article of the fundamental articles of the charter of the Bank of the United States (act of 1816, ch. 44, § 11) declares, among other things, that the bank “ shall not be at liberty to purchase any public debt whatsoever ; nor shall it take more than at the rate of six per centum per annum for or upon its loans or discounts.” It is clear, that the present transaction does not fall within the prohibition of dealing or trading, in the preceding part of the same article, according to the interpretation thereof given by * Q , this court, in *Fleckner v. Bank of the United States, 8 Wheat. 338, J 351, to which we deliberately adhere. It is observable, that the words of the article are, that the bank shall not take (not shall not reserve or take) more than at the rate,of six per cent. In the construction of the statutes of usury, this distinction between the reservation, and taking of usurious interest, has been deemed very materia , for the reservation of usurious interest makes the contract utterly voi , but if usurious interest be not stipulated for, but only taken afterwar s, then the contract is not void, but the party is only liable to the penalty oi the excess. So it was held in Floyer n. Edwards, Cowp. 112. But m case of the Bank of the United States v. Owens, 2 Pet. 527-8, it was sai , 260 1835] OF THE UNITED STATES. United States Bank v. Waggener. 399 that in the charter, “ reserving ” must be implied in the word “ taking.” This expression of opinion was not called for by the certified question, which arose out of the plea ; for it was expressly averred in the plea, that in pursuance of the corrupt and unlawful agreement therein stated, the bank advanced and loaned the whole consideration of the note, after deducting a large sum for discount, in the notes of the Bank of Kentucky, at their nominal value. It is in reference to the usury act of Kentucky, and this article of the bank charter, that the various instructions asked or given are to be examined. But before proceeding to consider them, severally, it may be proper to remark, that in construing the usury laws, the uniform construction in England has been (and it is equally applicable here), that to constitute usury, within the prohibitions of the law, there must be an intention knowingly to contract for or to take usurious interest ; for if neither party intend it, but act bond fide and innocently, the law will not infei’ a corrupt agreement. Where, indeed, the contract, upon its very face, imports usury, as by an express reservation of more than legal interest, there is no room for presumption, for the intent is apparent; res ipsa loquitur. But where the contract on its face is for legal interest only, there it must be proved, that there was some corrupt agreement, or device or shift, to cover usury ; and that it was in the full contemplation of the parties. These distinctions are laid down and recognised as early as the cases of Sutton n. Downham, Cro. Eliz. 642 ; Bedingfield y. Ashley, Cro. Eliz. 741; Roberts *v. rsj{ Trenayne, Cro. Jac. 507. The same doctrine has been acted upon in *-modern times, as in Murray v. Harding, 2 W. Bl. 859, where Gould, Justice, said, that the ground and foundation of all usurious contracts, is the corrupt agreement; in Floyer v. Edwards, Cowp. 112; in Hammet v. Yea, 1 Bos. & Pul. 144 ; in Doe v. Gooch, 3 Barn. & Aid. 664 ; and in Solarte y. Melville, 1 Barn. & Cres. 431. The same principle would seem to apply to the prohibition in the charter of the bank. There must be an intent to take illegal interest, or, in the language of the law, a corrupt agreement to take it, in violation of the charter ; and so it was stated in the plea, in the case of the Bank of the United States v. Owens, 2 Pet. 527. The quo animo is, therefore, an essential ingredient in all cases of this sort. Now, it distinctly appears in the evidence, as has been already stated, that no interest or discount whatsoever was actually taken on the note ; and on the face of the note, there was no reservation of any interest but legal interest. So that there has been no taking of usury, and no reservation of usury, on the face of the transaction. The case then resolves itself into this inquiry: whether, upon the evidence, there was any corrupt agreement, or device or shift, to reserve or take usury ; and in this aspect of the case, the quo animo, as well as the act of the parties, is most important. With these principles in view, let us now proceed to the examination of t e instructions prayed by the plaintiffs. The substance of the first instruction is, that if the contract was fairly made by the parties, without any intention to evade the laws against usury, but that the parties making e contract intended to exchange credits, for the accommodation of Owens, at the Bank of Kentucky was solvent, and able to pay its debts by coercion, then the contract was not void for usury, nor contrary to the charter 0 t e bank, notwithstanding the parties knew that the Bank of Kentucky 261 400 SUPREME COURT [Jan’y United States Bank v. Waggener. did not pay specie for its notes, without coercion, and that these notes were in exchange at a depreciation of from thirty-three to forty per cent, below par. We are of opinion, that this instruction ought to have been given. It excludes any intention of violating the laws against usury ; and it puts the case as a bond fide exchange, of credits for the accommodation of Owens. * , $uch an exchange is not, *per se, illegal; though it may be so, if it J is a mere shift or device to cover usury. If the application be not for a loan of money, but for an exchange of credits or commodities, which the parties bond fide estimate at equivalent values, it seems difficult to find any ground on which to rest a legal objection to the transaction. Because an article is depreciated in the market, it does not follow, that the owner is not entitled to demand or require a higher price for it, before he consents to part with it. He may possess bank-notes, which to him are of par value, because he can enforce payment thereof, and for many purposes, they may pass current at par, in payment of his own debts, or in payments of public taxes ; and yet their marketable value may be far less. If he uses no disguise ; if he seeks not to cover a loan of money, under the pretence of a sale or exchange of them ; but the transaction is, bond fide, what it purports to be ; the law will not set aside the contract, for it is no violation of any public policy against usury. We are also of opinion, that the second instruction ought, for similar reasons, to have been given ; and, indeed, it stands upon stronger grounds. It puts the case, that there was no intention to violate the charter or the statute against usury; that the contract was for the accommodation of Owens ; that the Bank of Kentucky was indebted to the plaintiffs in a sum exceeding $10,000, bearing an interest of six per cent, (which the check would reduce pro tanto) ; that the Bank of Kentucky was able to pay the amount with interest, in gold or silver, and did pay it, after deducting the check of $3900 ; and then asserts, that under such circumstances, the contract was not usurious, unless the jury believe that the contract was a shift or device entered into to avoid the statute against usury, notwithstanding the check and the bank-notes were, in point of fact, of less value than gold and silver. So that, in fact, it puts the instruction upon the very point upon which the law itself puts transactions of this sort—the quo animo of the parties. Did they intend usury, and make use of any shift or device to cover a loan of money? Or did they, bond fide, intend a loan of banknotes, which to the lender were of the full value of their numerical amount, and were so treated bond fide by the borrower ? Unless the court were prepared to say (which we certainly are not), that all negotiations for *4021 *^e sa^e or exchange of bank-notes, under any circumstances, must, -* to escape the imputation of usury, or the prohibition of the charter, be merely at their marketable value at the time, though worth more to hot parties, the instruction was in its terms unexceptionable. The third instruction is governed by the same reasoning. It puts t e case, that the application was made for a loan, not of money, but for notes of the Kentucky Bank, to the amount of $5000, in consideration of the no e sued on ; that the Bank of Kentucky was solvent and able to pay its notes ’ that the holders thereof could, by reasonable diligence, have recovere t e amount thereof, with interest at the rate of six per cent, per annum , an that there was no device or intent to evade the statute against usury, or 262 1835] OF THE UNITED STATES. United States Bank v. Waggener. 402 prohibition of the charter ; and then asserts, that under such circumstances, the transaction was not, in law, usurious. And here, it may be added, that if the case was as stated (and the evidence manifestly conduced to establish it), it is clear, that the plaintiffs could not, by the negotiation, entitle themselves to more interest than they were already entitled to against the Bank of Kentucky. It would be a mere exchange of securities, by which the plaintiffs did not reserve, and could not obtain, more than the legal rate of interest. If A. holds the note of B., for one hundred dollars and legal interest, and he exchange it with C., for his note for the same sum and legal interest, and B. and C. are both solvent, the transaction in no manner trenches upon the statute against usury. The fourth instruction puts the case in a more general form ; but the same principles apply to it. The fifth instruction puts the case in the most pointed manner, whether there was an intended loan of money and a reservation of illegal interest, and a shift or device to cover it, and evade the law by advancing something other than money on the loan. If there was not, then it asserts (and in our judgment correctly) that the j ury ought to find for the plaintiffs. The sixth and seventh instructions fall under the same considerations, and are equally unexceptionable. The eight instruction was properly refused, and ought not to have been given. The court could not judicially say, that there was no evidence conducing to prove, that there was a *loan by the plaintiffs of the notes of the Bank of Kentucky. There was evidence proper for the con-sideration of the jury ; and the intent was to be gathered by them, from the whole circumstances of the transaction. In regard to the instruction given by the court upon the prayer of the defendants, it was probably given under the impression, that the case was governed by the decision of this court, in the Bank of the United States v. Owens, 2 Pet. 527. That case, however, in our opinion, turned upon considerations essentially different from those presented by the present record. The questions certified in that case arose upon a demurrer to a plea of usury, and the demurrer, in terms, admitted, that the agreement was unlawfully, usunously and corruptly entered into ; so that no questionas to the intention of the parties, or the nature of the transaction, was put. The transaction was usurious, and the agreement corrupt ; and the question then was, whether, if so, it was contrary to the prohibitions of the charter, and the contract was void. In the present case, the questions are very different. Whether the agreement was corrupt and usurious, or bond fide, and without any intent to commit usury, or to violate the charter, are the very points, which t e jury were called upon, under the instructions asked of the court, to ecide. The decision in 2 Pet. 527, cannot, therefore, be admitted to govern this ; for the quo animo of the act, as well as the act itself, constitute the gist of the controversy. In our opinion, the instruction asked by the defendants, ought not to ave been given. It excludes altogether any consideration of the bona J1 es of the transaction, and the intention of the parties, whether innocent or usurious ; and puts the bar to the recovery (after selecting a few facts) su stantially upon the ground, that the bank-notes loaned were a known preciated currency, passing in exchange and business, at a discount of 263 403 SUPREME COURT Piatt v. Vattier. [Jan’y from thirty to forty per cent., and were passed at their nominal amounts by the plaintiffs to the defendants; without any reference to the fact, whether there was any design to commit usury, or whether the notes were, in reality, of a higher intrinsic value, or of their full nominal value, to the parties ; or whether there was, in the transaction, either a taking or a reser-*4.04.1 va^on more than six per cent. *interest contemplated by the parties. J From what has been already stated, these constituted the turning-points of the case ; and the instruction could not properly be given, without making them a part of the inquiries before the jury, upon which their verdict was to turn. Upon the whole, we are of opinion, that the first seven instructions prayed by the plaintiffs, ought to have been given to the jury ; and the instructions given by the court, at the request of the defendants, ought to have been refused ; and therefore, for these errors, the judgment ought to be reversed, and the cause remanded to the circuit court, with directions to award a venire facias de novo. Judgment reversed. *405] *Robert Piatt, Appellant, v. Charles Vattier and others, and The Bank of the United States. Statute of limitations.—Adverse possession. A bill was filed in the circuit court of Ohio, for a conveyance of the legal title to certain real estate in the city of Cincinnati; and the statute of limitations of Ohio was relied on by the defendants; the complainant claimed the benefit of an exception in the statute, of non-residence and absence from the state; and evidence was given, tending to show that the person ‘ under whom he made his claim in equity was within the exception; the non-residence and absence were not charged in the bill, and, of course, were not denied or put in issue in the answer: Held, that the court could take no notice of • the proofs ; for the proofs, to be admissible, must be founded upon some allegations in the bill and answer. If the merits of the case were not otherwise clear, the court might remand the cause for the purpose of amending the pleadings. There was in this case a clear adverse possession of thirty years, without the acknowledgment of any equity or trust estate in any one, and no circumstances were stated to the bill, or shown in evidence, which overcame the decisive influence of such an adverse possession. The established doctrine of the law of courts of equity, from its being a rule adopted by those courts, independent of any legislative limitations, is, that it will not entertain stale demands.1 Piatt v. Vattier, 1 McLean 146, affirmed. 1 Courts of equity, acting on their own inherent doctrine, of discouraging, for the peace of society, antiquated demands, refuse to interfere in attempts to establish a stale trust, except where the trust is clearly established, or where the facts have been fraudulently and successfully concealed by the trustee, from the knowledge of the cestui que trust. Relief, in such cases may be sought; but the rule is, that the cestui que trust should set forth in the bill, specifically, what were the impediments to an earlier prosecution of the claim, and how he came to be so long ignorant of his alleged rights, and the means used by the respondent to keep him or her in ignorance, and how he or she first come to the knowledge of their rights. 264 Godden v. Kimmell, 99 U. S. 211; Badger v. Badger, 2 Wall. 87. Where a party appeals to the conscience of the chancellor, in support of the claim, where there has been laches in prosecuting it, or long acquiescence in the asser tion of adverse right, he should set fort m his bill, specifically, what were the impedimen s to an earlier prosecution of the claim, an i he do not, the chancellor may justly re us to consider his case, on his own showing, wi out inquiring whether there is a any formal plea of the statute of a 1 ’ contained in the answer. Marsh v. 1 ® ’ 21 Wall. 185. And see Brown v. Buena V County, 95 U. S. 161. 1835] OF THE UNITED STATES. 405 Piatt v. Vattier. Appeal from the Circuit Court of Ohio. On the 6th of December 1827, the appellant, a citizen and resident of the state of Kentucky, filed a bill in the circuit court of the United States for the district of Ohio, setting forth, that in the year 1789, when the city of Cincinnati was first laid out, the country being then a wilderness, and the town plat a forest of timber, certain lots in the said city were allotted, as donations, to those who should make certain improvements, within given periods of time; and the evidence of ownership, consisting of the certificate of the proprietors, was transferred from one person to another, by delivery, as evidence of title. That the lot No. 1, on the said plat, now occupied as the Cincinnati Hotel, was allotted to one Samuel Blackburn, who, before the conditions of the donation were fulfilled, transferred his right to one James Campbell, who soon thereafter transferred it to one John Bar tie, who, in the summer of the year 1790, took possession of the same, and completed the *improvements required by the terms of the donation. That said Bartie continued *■ b to occupy said lot, and the building thereon erected, by himself, first, and subsequently, by his tenants Elliott and Williams, and by his tenant Abijah Hunt, for several years ; having the certificate of the proprietors of the town as his evidence of title ; and the said Bartie having become embarrassed in his circumstances, mortgaged the said lot to one Robert Barr, of Lexington, Kentucky, of whom, and his heirs, if deceased, nothing was known, for the sum of about $700, to the payment of which the rents reserved to said Bartie, from the tenants in possession, were to be, and a large amount was in fact appropriated and paid. That the said Bartle having been upset in crossing the Ohio river, and thrown into the same, lost his certificate for said lot, and this fact coming to the knowledge of one Charles Vattier, a citizen and resident of the state of Ohio, who, it was prayed, might be made defendant to the bill, and the said Bartie being then in very reduced circumstances, the said Vattier contriving and intending to defraud the said Bartie of the said lot, then become considerably valuable, went to Lexington and purchased of said Barr the mortgage given on said lot by said Bartie, which he took up; and having obtained from Abijah Hunt, then the tenant of said Bartie, the possession of the said lot, in the absence of said Bartie from the country, the said Vattier obtained from John Cleves Symmes, in whom the legal title was, a conveyance for said lot. That said Vattier having thus fraudulently obtained the possession of and title to said lot, afterwards sold the same to one John Smith, who had full notice and knowledge of the original and continued claim of said Bartie to the same, which said Smith was since deceased, and his heirs, if any were alive, were unknown to the complainant; and the said Smith, after occupying the same for a time, sold the same to one John H. Piatt, who had full notice and knowledge of Bartie’s claim thereto; said John H. Piatt was since deceased, leaving Benjamin M. Piatt, and Philip Crandon and Hannah C. his wife, citizens and residents of the state of Ohio, his heirs-at-law, with others not citizens of this state, and who could not, therefore, be made defendants. And the said John H. Piatt, in is lifetime, mortgaged the same to the president, directors and company o the Bank of the United States, under *which mortgage, the said p. president, directors and company of the Bank of the United. States a obtained possession and complete title, with full notice and knowledge 0 t e claim of said Bartie. And the said president, directors and company 265 4Ô7 SUPREME COURT [Jan’y Piatt v. Vattier. of the Bank of the United States had sold the same to one John Watson, a citizen and resident of this state, who, it was prayed, might be made defendant to the bill, the said Watson being in the actual possession of said premises, but had not paid the purchase-money nor obtained a deed therefor. The bill further showed, that the said Bartie asserted to the said Vattier, to the said Smith, and to the said Piatt, his right to said premises, at various and different times, but from poverty was unable to attempt enforcing the same in a court of equity or elsewhere ; and the complainant had recently purchased from said Bartie his right to said lot, and obtained a conveyance from him for the same. The bill prayed, that the said president, directors and company of the Bank of the United States might be decreed to deliver possession of said premises to the complainant, and account for and pay the rents and profits thereof to him, and execute a quit-claim deed therefor to him ; or in case the said president, directors and company of the Bank of the United States be protected in the possession thereof, that Charles Vattier be decreed to account for and pay to the complainant the value thereof, upon such principles as should be deemed just and equitable; and for other and further relief, &c. The Bank of the United States filed an answer, denying any knowledge of the facts alleged in the bill, as to the title of Bartie to the property in question, and asserting a regular legal title to the same, in those under whom they hold the same. They asserted a possession of the property in Charles Vattier, from 1797, up to July 1806, when the property was purchased by John Smith, and was afterwards, in 1811, sold by the sheriff, by virtue of a fieri facias, as the property of John Smith, and bought by John H. Piatt; under whom, and whose heirs, the property was held by conveyances, commencing in 1820, by mortgage, by deed in fee-simple from the heirs of John H. Piatt, in 1823, and by a release of the dower of the widow of John H. Piatt, at the same time, for which release the bank paid to the said widow $11,000. Upon this lot of ground, John H. Piatt made extensive and 1 *costly improvements, and in particular, erected the Cincinnati Hotel. J The answer stated, that the bank, at the time of the purchase, knew nothing of the claim of the complainant, or of Bartie, and that they claimed a complete title to the lot, under John C. Symmes, Charles Vattier, John Smith and John H. Piatt, and his heirs and representatives, and widow, as above stated, and they alleged, that said Vattier took possession of said lot, about the year 1799, and that said Vattier, and those claiming under him, had continued in the uninterrupted possession of said premises ever since, being a period of more than twenty-eight years. The answer of Charles Vattier denied all the allegations in the bill which asserted his knowledge of the title, said to have been held by Bartie to the property; and asserted a purchase of the property claimed, by Robert Piatt, from Robert Barr, of Lexington, Kentucky, and that a complete legal tit e to the same had been made to him by John Cleves Symmes, holding t e said legal title. That he came fairly into the possession of this proper y, and at that time had not the least notice or knowledge of the suppose equitable claim of the said Bartie to the lot. He further stated, that, w 1 e he lived on said lot, he frequently saw Bartie, who was often in the house on the lot; that said Bartie never made known to him, nor intimated to im, that he had any claim or title to the lot; that while he was the owner o 266 1835] OF THE UNITED STATES. 408 Piatt v. Vattier. .the lot, he made improvements on the same, of which Bartie had knowledge. He did not believe or admit, that said Smith had any notice of the several matters and things set forth in the bill, at the time he received a conveyance for said lot from this defendant, as before stated, or that he knew or had heard anything of the supposed right or claim of said Bartie to said lot. He further stated, that, ever since he took possession of said lot, in the year 1797, there had been a continue/! possession of the same, under his title thus acquired from said Symmes, by the successive owners, as set forth in the bill. He knew nothing of the inability of said Bartie, on account of his poverty, to assert his title to said lot, if he had one ; nor did he know that the said Robert Piatt had purchased from the said Bartie his right to said lot, and obtained a conveyance from him for the same, and therefore, he required full proof of the same. *The complainant filed a general replica- r*4nq tion. *- The depositions of a number of witnesses were taken and filed in the case; and on the 19th of December 1831, the circuit court made a decree, dismissing the bill, and stating that the equity of the case was with the defendants, and that the complainant was not entitled to the relief sought. The complainant appealed to this court. The case was argued by Ewing and Bibb, for the appellant; and by Sergeant and Webster, for the appellees. The decision of the court having been given on the bar which was interposed by time, to the right of the appellant to recover, the arguments of counsel on the other points in the case are omitted. Upon the effect of the statutes of limitations of Ohio on the claim of the appellant, and of time on the same, the counsel for the appellant contended, that the length of time is no bar, according to the facts and circumstances of this case. The question is, whether the claim set up in the bill is barred by the statute of limitations of Ohio ? In Aggas w PickereU, 3 Atk. 222 (26th of June 1745), upon a bill for redemption of mortgaged premises, of which the defendant had possession more than twenty years, the defendant demurred. The chancellor expressed his opinion unfavorable to the demurrer ; he said, “ how is it possible to give greater allowance to length of time, than the statute of limitation oes ? “ The plaintiff may, by way of reply or amending his bill, make it appear, he is within the saving of the statute “ or upon a plea, he may prove himself to be within the exceptions.” In 3 Atk. 314, the same rule is observed, and redemption decreed in behalf of a “ prowling assignee, who a Puffed he had purchased the equity of redemption for a very inconsider-a ® 8Um. The plaintiff was not barred by the statute of limitations ; and a ough the chancellor was much disinclined towards the assignee, he did decree in his favor ; declaring, “ even in the case of an assignee of the equity o re emption, if the *circumstances would induce the court to decree • e emption in favor of the mortgagor, the assignee, who stands in his t^d h ^ave benefit of it.” In Higginson n. Alein, 4 Cranch 415—20, e 6 $ Ta8 enf°rce which took effect June 1st, 1810, that as to causes of action thereto ore! ac crued, but then barred, the limitation ceased. Upon such actions, no sta u^ of limitation had any bearing, until the passage of the act of 1826 ; an 268 1835J OF THE UNITED STATES. 411 Piatt v. Vattier. bar can be invoked, unless the supplementary act of 1826 can produce such effect. It has been decided, that “ beyond sea ” means out of the state. Shelby v. Quy, 11 Wheat. 361. The evidence in this case shows, that Bartie was absent from the state ; and thus was fully entitled to the benefit of the exception. Courts of equity will apply the same rules as are established by statutes of limitation ; but they will not go beyond them. They will give the benefit of the exceptions in the statute, when they adopt the rules of the statute. If it is necessary to set out specially, in the original bill, the exception of *the statute, as protecting the appellant, he should be allowed to amend his bill ; and the court will remand the case, L to give him an opportunity to supply the omission. But the complainant may, on authority, amend; or may prove that he is within the exception of the statute, by evidence (3 Atk. 226) ; and this is the usual course. Sergeant and Webster, for the appellees.—The Bank of the United States are protected against the claim of the appellant by length of time. 1. This protection is derived from length of time, independent of all statutes of limitations. 2. From the express provision of the statutes of Ohio. The protection is obtained by the general rules of equity. The bill has no date, and if the case was stated as it is made out by the evidence, it would be demurrable. It would be a case of a mortgagee in possession for upwards of twenty years, without payment of interest. This, in England, would be a demurrable bill. The possession of the mortgagee was for thirty-five years. Cases cited, upon this position, Hughes v. Edwards, 9 Wheat. 497, 648 ; Willison, v. Watkins, 3 Pet. 43. It is no answer to say, that the person who claims title was out of the state of Ohio. The exception is one by statute, but the rule is one of courts of equity, which has no exception. The plaintiff’s case is completely barred by the statutes of Ohio, unless he can protect it by the exception in the statute in favor of a person “ beyond seas.” In this case, the appellant cannot avail himself of the exception in the statute. Vattier says, he went into possession in 1797, and this is a bar, unless the exception operates. The appellant says, he was out of the state. The question is one of law, not of evidence. The complainant having filed his bill in equity, against a person in possession upwards of thirty years, and the defendants asserting the protection of the general provisions of the statutes of limitation ; until the complainant shall establish by proof, that the exception applies to him, he cannot avail himself of it. The exception should have been put in issue. *His protection by it should have been averred in his bill, or in an amended bill. Cooper’s Chan. Pract. 6, 12, 329. How was it to be understood by the bill, that the material fact was, to prove that Bartie was on the other side of the Ohio ? In a court of common law, a party defendant pleads the statute of limitations ; the plaintiff replies an exception, and he must raise a primd facie case, by evidence. This will apply in equity. There is no evidence that the general residence of Bartie was "out of the state. The case appears, on the proceedings, that the defendants are to prove that Bartie is not within the exception, before the plaintiff has proved the general absence of Bartie, to place him within the exception. 269 413 SUPREME COURT Piatt T. Vattier. [Jan,y Stcry, Justice, delivered the opinion of the court.—This is an appeal from the decree of the circuit court of the district of Ohio, in a suit in equity, in which the present appellant was original plaintiff. In June 1827, the plaintiff purchased of John Bartie, the lot of land in controversy (which is asserted to be worth from $50,000 to $70,000), for the consideration, as stated in the deed of conveyance, of $3000; and the present suit was brought in December of the same year. The bill states, that when the city of Cincinnati was laid out, in 1789, the country being then a wilderness, certain lots of the city were allotted, as donations, to those who should make certain improvements, and that the evidence of ownership of such lots was a certificate of the proprietors, which was transferrible from one person to another by delivery. That lot No. 1, on the plat of the city (the lot in controversy), was allotted to Samuel Blackburn, who transferred his right to one James Campbell, who transferred it to Bartie, in 1790, and the latter completed the improvements required by the terms of donation. That Bartie continued to occupy the lot, under this certificate of title, for several years, when, becoming embarrassed, he mortgaged the lot to one Robert Barr, of Lexington, Kentucky, of whom (the bill states) and his heirs, if deceased, the plaintiff knows nothing, for the sum of $700, for the payment of which the rents * 1 received by Bartie, from the *tenants in possession were to be appro- -• priated and paid. The bill then alleges, that Bartie afterwards lost the certificate, in crossing the Ohio river ; that Charles Vattier, one of the defendants, fraudulently purchased the mortgage of Barr, and obtained possession of the lot from the tenants, in the absence of Bartie from the country, and acquired the legal title from John C. Symmes, in whom it was vested. That Vattier afterwards sold the same to one John Smith, who is since deceased (and his heirs, if any are alive, are unknown to the plaintiff), and who had full notice of Bartie’s title. That Smith afterwards sold the same to one John H. Piatt, since deceased (whose heirs are made defendants), who also had notice of Bartie’s title ; that Piatt, in his lifetime, mortgaged the same to the Bank of the United States, which has obtained possession and complete title, with the like notice. The bill further charges, that Bartie asserted his right to the premises to Vattier, Smith and Piatt, at various times, but from poverty was unable to attempt enforcing the same in a court of equity, or elsewhere ; and that the plaintiff has recently, in December 1827, purchased Bartie’s right, and obtained a conveyance thereof. The bill then states, that the plaintiff had hoped, that the bank would have surrendered the possession, or in case it refused so to do, that Vattier would have accounted with the plaintiff for the value thereof, taking an account of the mortgage-money paid to Barr, of the improvements, rents, profits, &c.; but that' the bank has refused to surrender the possession, and Vattier has refused to account. And it then prays a decree against the bank, to surrender the possession, and account for the rents and profits, and to execute a quit-claim ; or, if the bank is protected in the possession, that Vattier shall be decreed to account, and for general relief. In the answers of Vattier and the Bank of the United States, they assert themselves to be bond fide purchasers, for a valuable consideration, of an absolute title to the premises, without notice of Bartie’s title, and they rely on the lapse of time also as a defence. The bill, as to the heirs of J. H. Piatt, was taken pro confesso, they not having appeared in the cause. 270 1835] OF THE UNITED STATES. Piatt v. Vattier. 414 From the evidence in the cause, it appears, that Vattier, and those claiming title under him, have been in possession of the premises, claiming an absolute title thereto, adverse to the title *of Bartie, ever since the 20th of March 1797, the day of the date of the conveyance from Symmes L to Vattier. At the hearing in the circuit court, the bill was dismissed ; and the cause now stands before this court upon an appeal taken from that decision. Various questions have been made at the argument made before us, as to the nature and character of Bartie’s title ; and, if he had any valid title, whether the purchasers under Barr had notice of it. With these and some other questions, we do not intermeddle ; because in our view of the cause, they are not necessary to a correct decision of it. The important question is, whether the plaintiff is barred by the lapse of time ; for we do not understand, that the adverse possession presents, under the laws of Ohio, any objection to the transfer of Bartie’s title to the plaintiff, if Bartie himself could assert it in a court of equity. This question has been argued at the bar, under a double aspect : first, upon the ground of the statute of limitations of Ohio ; and secondly, upon the ground of an equitable bar, by mere lapse of time, independently of that statute. In regard to the statute of limitations, it is clear, that the full time has elapsed, to give effect to that bar, upon the known analogy adopted by courts of equity, in regard to trusts of real estate, unless Bartie is within one of the exceptions of the statute, by his non-residence and absence from the state. It is said, that there is complete proof in the cause, to establish such non-residence and absence. But the difficulty is, that the non-residence and absence are not charged in the bill, and, of course, are not denied or put m issue by the answer ; and unless they are so put in issue, the court can take no notice of the proofs ; for the proofs, to be admissible, must be founded upon some allegations in the bill and answer. It has been supposed, that a different doctrine was held by Lord Hardwicke, in Aggas v. Pickerell, 3 Atk. 228, and Gregor n. Molesworth, 2 Ves. jr. 109, and by Lord Thurlow, in Deloraine n. Prowne, 3 Bro. C. C. 632. But these cases did not proceed upon the ground, that proofs were admissible to show the party, plaintiff, to be within the exception of the statute of limitations, when relied on by way of plea or answer, and the exception was not stated m the bill, or specially replied, but upon the ground, that the omission m the bill to allege such exception could not be taken by way of emurrer. And even this doctrine is contrary to former decisions of L e court ;(a) and it has since been explicitly overruled, and particularly in eckfordv. Close, 4 Ves. 476 ; Foster v. Hodgson, 19 Ibid. 180, and Hoven-en y- -^ord Annesley, 2 Sch. &Lef. 637-8. And the doctrine is now clearly t‘8ffa • ^at if the statute of limitations is relied on as a bar, the plain-11 ’ " he .WOU^ av<>id it by any exception in the statute, must explicitly ?n ^8 bill, or specially reply it ; or, what is the modern practice, ^en hi® Lill, if it contains no suitable allegation to meet the bar.(ô) In present case, if the merits were otherwise clear, the court might remand South Sea ^omPany ®. Wymondsell, 3 P. Wms. 143, 145, and Mr. Coxe’s Ä q Eq‘ PL 254-5 ’ Smith v- Olay, 3 Bro. C. 0. 640, note. Millo« Te^S no^e the case of Deloraine v. Browne, 3 Bro. 0. C. 640, n. 1; ^r McIntyre, 6 Pet. 61, 64. 271 416 SUPREME COURT [Jan’y Piatt v. Vattier. the cause, for the purpose of amending the pleadings, and supplying this defect. But, in truth, the answers, though they rely generally on the lapse of time, do not specially rely on the statute of limitations as a bar ; and the case may, therefore, well be decided, upon the mere lapse of time, independently of the statute. And we are of opinion, that the lapse of time is, upon the principles of a court of equity, a clear bar to the present suit, independently of the statute. There has been a clear adverse possession of thirty years, without the acknowledgment of any equity or trust estate in Bartie; and no circumstances are stated in the bill, or shown in the evidence, which overcome the decisive influence of such an adverse possession. The established doctrine, or, as Lord Redesdale phrased it, in Hovenden n. Annesley, 2 Sch. & Lef. 637-8, “the law of courts of equity/’ from its being a rule adopted by those courts, independent of any positive legislative limitations, is, that it will not entertain stale demands. Lord Camden, in Smith n. Clay, 3 Bro. C. C. 640 note, stated it in a very pointed manner. “ A court of equity,” said he, “ which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights, or acquiesced for a great length of time. Nothing *can J call forth this court into activity, but conscience, good faith and reasonable diligence. Where these are wanting, the court is passive and does nothing ; laches and neglect are always discountenanced; and therefore, from the beginning of this jurisdiction, there was always a limitation of suits in this court.” The same doctrine has been repeatedly recognised in the British courts, as will abundantly appear from the cases already cited, as well as from the great case of Cholmondeley n. Clinton, 2 Jac. & Walk. l.(a) It has also repeatedly received the sanction of the American courts, and was largely discussed in Kane v. Bloodgood, 7 Johns. Ch. 93, and Decouche v. Savatier, 3 Ibid. 190. And it has been acted on in the fullest manner by this court ; especially, in the case of Prevost v. Gratz, 6 Wheat. 481 ; Hughes n. Edwards, 9 Ibid. 489 ; Willison n. Watkins, 3 Pet. 44; and Miller v. McIntyre, 6 Ibid. 61, 66. ' Without, therefore, going at large into the grounds upon which this doctrine is established, though it admits of the most ample vindication and support, we are all of opinion, that the lapse of time in the present case is a complete bar to the relief sought, and that the decree of the circuit court, dismissing the bill, ought to be affirmed, with costs. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Ohio, and was argued by counsel: On consideration whereof, it is decreed and ordered by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed, with costs. (a) See also Beckford ®. Wade, 17 Ves. 86; Bonney v. Ridgard, 1 Cox 145, Bien nerhassett v. Day, 1 Ball & Beat. 104; Hardy®. Reeves, 4 Ves. 469; Harrington ®. Smith, 1 Bro. P. C. 95. 272 . 1835] OF THE UNITED STATES. ♦418 *Charles Scott, Bailiff of William S. Mooee, Plaintiff in Error, v. John Lloyd.1 Usury.—Exception. Scholfield applied to Moore to raise or borrow $5000, securing him on an annuity, or groundrent, on sufficient real estate, for one year; Moore proposed to let him have the money for ten years, on the same security; after much discussion, the parties agreed to divide the difference, and that S. should keep the money for five years; a deed for sufficient real property in Alexandria, in the district of Columbia, securing the annuity, was executed by S.; and the annuity or ground-rent was paid for some years. Scholfield, after the execution of the deed securing the annuity to Moore, sold and conveyed the estate, subject to the annuity or rentcharge, to Lloyd; and subsequent to the conveyance, he gave notice to Lloyd, not to pay the rents to Moore, on the allegation that there were fraud and usury in the transaction, and that the grant of the annuity was, therefore, void ; at the time this notice was given, Scholfield agreed in writing, to indemnify and save Lloyd from loss, if a distress should be made for the rent; and he would resist the same by a writ of replevin; this was done by Lloyd. Lloyd and others, as creditors of Scholfield, became afterwards possessed, in. absolute property, by releases from and agreements with Scholfield, of all his, Scholfield’s, interest in the reversion of the estate on which the rent was secured, or any benefit or advantage from the suit, and he was discharged by the insolvent law of Virginia ; but no release of Scholfield by Lloyd from his responsibility to save him harmless, for the resistance of the distress and the action of replevin, was executed. On the trial of the action of replevin, in the circuit court, Scholfield was examined as a witness, in favor of Lloyd, to show that the original contract between him and Moore was usurious: Held, that he was an interested and incompetent witness. The statute against usury not only forbids the direct taking more than six per centum per annum for the loan or forbearance of any sum of money, but it forbids any shift or device by which this prohibition may be evaded, and a greater interest be, in fact, secured. If a larger sum than six per cent, be not expressly reserved, the instrument will not of itself expose the usury, but the real corruptness of the contract must be shown by extrinsic circumstances, which prove its character. The court was requested to say to the jury, that the facts given in evidence on the trial of the case, did not import such a lending as would support the defence of usury. The court was asked to usurp the province of the jury, and to decide on the sufficiency of the testimony, in violation of the well-established principle, that the law is referred to the court, the fact to the jury. The statute declares, “ that no person shall, on any contract, take, directly or indirectly, for loan of any money,” &c., “ above the value of six dollars, for the forbearance of one hundred dollars for a year.” It has been settled, that to constitute the offence, there must be a loan, upon which more than six per cent, interest is to be received ; and it has been also r settled, that where the ^contract is, in truth, for the borrowing and lending of money, L no form which can be given to it will free it from the taint of usury, if more than legal interest be secured. The ingenuity of lenders has devised many contrivances by which, under forms sanctioned by law, the statute may be evaded; among the earliest and most common of these, is the purchase of annuities, secured upon real estate or otherwise. The statute does not reach these, not only because the principal may be put in hazard; but because it was not the intention of the legislature to interfere with individuals in their ordinary transactions of buying and selling, or other arrangements made with a view to convenience or profit; the purchase of an annuity or rent-charge, if a bond fide sale, has never been considered as usurious, though more than six per cent, profit be secured. Yet it is apparent, that if giving this form to the contract will afford a cover which conceals it from judicial investigation, the statute would become a dead letter; courts, therefore perceived the necessity of disregarding the form, and examining into the real nature of the transaction ; if that be in fact a loan, no shift or device will protect it. Though this principle may extracted from all the cases, yet as each depends on its own circumstan-ces, and those circumstances are almost infinitely varied; it ought not to surprise, if there 1 For a former decision in this case, see 4 Pet. 205, 9 Pet.-—18 278 419 SUPREME COURT [Jan’y Scott v. Lloyd. should be some seeming conflict in the application of the rule by different judges; different minds allow a different degree of weight to the same circumstances. The covenants in the deed from Scholfield, granting the annuity to Moore, secure the payment of ten per cent, for ever on the sum advanced ; there is no hazard whatever in the contract: Moore must, in something more than twenty years, receive the money he has advanced, with the legal interest on it, unless the principal sum should be returned after five years ; in which event, he will receive the principal, with ten per cent, interest; the deed is equivalent to a bond for $5000, amply secured by a mortgage on real estate, with interest at ten per cent, thereon; with liberty to repay the same in five years. If the real contract was for a loan of money, without any view to a purchase, it is plainly within the statute. An instruction to the jury which would separate the circumstances of the case from each other, and the object of which is, to induce the court, after directing the jury that they ought to be considered together, to instruct them that, separately, no one in itself amounted to usury, ought not to have been given. In the course of the trial of the cause in the circuit court, the counsel for the plaintiff objected to a question put by the defendant’s counsel to a witness, as being a leading question. Although the plaintiff’s counsel objected to his question, and said, that he excepted to the opinion of the court, no exception was actually prayed by the party and signed by the judge ; this court cannot consider the exception as actually taken, and must suppose it was abandoned. Lloyd v. Scott, 4 Or. C. C. 206, reversed. Eebob to the Circuit Court of the District of Columbia, and county of Washington. An action of replevin was instituted, in March 1825, by John *4201 -kloyd, in the circuit court of the United States for the county *of J Alexandria, against Charles Scott, bailiff of William S. Moore ; and a declaration was filed in the common form, at September rules of the same year. In November 1827, the defendant filed the following avowry : “Charles Scott, bailiff, &c., at suit John Lloyd. And the said Charles Scott, by Robert J. Taylor, his attorney, comes and defends the force and injury, when, &c., and as bailiff of William S. Moore, well acknowledges the taking the said goods and chattels in the said place, when, &c., and justly, &c., because, he says, that before the said time when the said the taking of the said goods and chattels is supposed to have been made, one Jonathan Scholfield was seised in his demesne in fee, of four brick tenements, and a lot of ground whereon they stood, on the east said of Washmg-ton street, and north side of Duke street, in the town of Alexandria, and county aforesaid, whereof the said place, when, &c., is, and at the said time, when, <&c., was parcel, and being so seised, as aforesaid, of the said tenements and lot of ground, he, the said Jonathan, and Eleanor his wife, afterwards, and before the said time, when, &c., to wit, on the 11th day of June 1814, at the county aforesaid, by their certain indenture, dated on the said 11th day of June 1814, and here now to the court shown, in consideration of the sum of five thousand dollars by the said William paid to the said Jonathan, granted, bargained and sold to the said William, one certain annuity or yearly rent of the five hundred dollars, to be inuring out of, an charged upon the said four brick tenements and lot of ground, whereof t e said place, when, &c., is parcel, to be paid to the said William, his heirs an assigns, by equal half-yearly payments of two hundred and fifty dollars eac , on the 10th day of December, and on the 10th day of June, in every year or ever thereafter : to hold the said annuity or rent, so as aforesaid charge and payable, to the said William S. Moore, his heirs and assigns, to his an their only proper use for ever : And the said Jonathan Scholfield, for im self, his heirs and assigns, did, by the said indenture, among other t mgs, covenant with the said William S. Moore, his heirs and assigns, that he, t 874 1835] OF THE UNITED STATES. 420 Scott v. Lloyd. said Jonathan Scholfield, his heirs and assigns, would well and truly satisfy and pay to the said William S. Moore, his heirs and assigns, the said annual rent of five hundred dollars, by equal half-yearly payments, *as afore-said, for ever, and that if the said rent should not be punctually paid L as it became due, then that, on overy such default, it should be lawful for the said William S. Moore, his heirs and assigns, from time to time, to enter on the said four tenements and lot of ground, so as aforesaid charged, of which the said place, when, &c., is parcel, and to levy, by distress and sale of the goods and chattels there found, the rent in arrear, and the costs of distress and sale ; of which said rent, so as aforesaid granted, the said William became and was seised under the said deed, and by the perception thereof, that is to say, on the 11th day of December, in the year 1814, at the county aforesaid, and has since remained, and yet is seised thereof. And afterwards, that is to say, on the 29th day of October, in the year 1816, at the county aforesaid, the said Jonathan Scholfield, and Eleanor his wife, by their certain deed of bargain and sale, under their seals, dated on the day and year last mentioned, bargained, sold and conveyed to the said John Lloyd, his heirs and assigns for ever, certain tenements and lots of ground, in the said town of Alexandria, whereof the said four brick tenements and lot of ground before mentioned, including the said place where, &c., is and was parcel, subject, by the terms of the said deed, to the payment of the said annuity or rent of five hundred dollars to the said William S. Moore, his heirs and assigns ; under and in virtue of which said bargain, sale and conveyance to him, the said John entered upon the said tenements and lots of ground so to him bargained, sold and conveyed, of which the said place where, &c., is and was parcel, and became thereof seised and possessed, that is to say, on the said 29th day of October, in the year 1816, at the county aforesaid, and ever since has continued, and yet is, so seised and possessed : and because, after the said bargain, sale and conveyance to the said plaintiff as aforesaid, and after his entry, seisin and possession of the premises, including the said place where, &c., and whilst he so continued seised and possessed as aforesaid, the sum of two hundred and fifty dollars of the annuity or rent aforesaid, for the half-year ending on the IQth day of June, in the year 1824 ; and the further sum of two hundred and fifty dollars of the said annuity or rent, for the half-year ending on the 10th day of December, in the year 1824, became and remained in *arrear and unpaid to the said [*492 William S. Moore, he, the said Charles Scott, as bailiff of the said William, and by his command and authority, at the said time when, &c., entered on the said place where, &c., being parcel of the four brick tenements and lot of ground, so as aforesaid charged with the said annuity or rent, and liable to the distress of the said William, and took and carried away the said goods and chattels in the declaration mentioned, then and there being found in the said place where, &c., parcel of the said four tene-ments and lot of ground, as a distress for the said rent so in arrear as aforesaid, to the said William, as he lawfully might, and this he is ready to verify, c.. wherefore, the said Charles prays judgment for the sum of one thou-sand dollars, being double the value of the said rent so in arrear and distrained as aforesaid, with full costs»of suit, &c., according to the statute in that case provided.” The plaintiff’s attorney thereupon filed four several pleas, the first of 275 422 SUPREME COURT Scott v. Lloyd. [Jan’y which was : “ And the said John, by Thomas Swann, his attorney, prays oyer of the said indenture from the said Jonathan Scholfield, and Eleanor his wife, to the said William *S. Moore, in the said cognisance mentioned, and the same is read to him in these words, to wit: which being read and heard, the said John saith, that the said Charles, as bailiff of the said William S. Moore, for the reasons before alleged, ought not justly to acknowledge the taking of the goods and chattels aforesaid, in the said place, in which, &c., because he saith, that before the making of the said indenture, that is to say, on the 11th day of June, in the year 1814, at the county aforesaid, it was corruptly agreed between the said Jonathan Scholfield and the said William S. Moore, that the said William S. Moore should advance to him, the said Jonathan, the sum of five thousand dollars ; and in consideration thereof, that he, the said Jonathan, and the said Eleanor his wife, should grant, by a deed of indenture, duly executed and delivered to him, the said William, his heirs and assigns for ever, a certain annuity or rent of five hundred dollars, to be issuing out of and charged upon a lot of ground and four brick tenements and appurtenances thereon erected, on the east side of Washington street, and on the north side of Duke street, in the * t , town of Alexandria, bounded as follows, ^beginning at the intersection $J said streets ; thence north on Washington street, eighty-seven feet, more or less, to the partition wall between the fourth and fifth tenements from Duke street; thence east, parallel to Duke street and with said partition wall, one hundred and twelve feet to an alley ; thence with the line of the said alley, eighty-seven feet to Duke street ; thence on Duke street, west, to the beginning ; to be paid to the said William, his heirs and assigns, by equal half-yearly payments of two hundred and fifty dollars, on the 10th day of December, and on the 10th day of June, for ever thereafter. And it was further corruptly agreed, that he, the said Jonathan, in and by the said deed,of indenture, should, for himself, his heirs, executors, administrators and assigns, covenant with the said William, his heirs and assigns, that he would well and truly pay to him, the said William, his heirs and assigns, the said annuity or rent of five hundred dollars, by equal half-yearly payments, on the 10th day of June, and 10th day of December, in each year for ever thereafter, as the same should become due; and that if the same should not be punctually paid, that then it should be lawful for the sai William, his heirs and assigns, from time to time, on every such default, to enter on the premises charged, and to levy, by distress and sale of goo s and chattels there found, the rent in arrear, and the costs of distress an sale ; and if the same should remain in arrear and unpaid for the space o thirty days after any day of payment as aforesaid, and no distress sumcien to satisfy the same could be found on the premises, that then it shou e lawful for the said William, his heirs and assigns, to enter upon the prem ises charged, and from thence to remove and expel the said Jonathan, is heirs and assigns, and to hold and enjoy the same, as his and their abso u e estate, for ever thereafter; and it "was further corruptly agreed between the said Jonathan, and him the said William, that he, the said Jona an, should enter into these further covenants in the said indenture ; that is say, a covenant that he, the said Jonathan, at the time, of the execution the said indenture, was then, in his own right, seised in f ee-simp e in premises charged, free from any condition or incumbrance, other t an s W léasj ÒF THÈ UNITE!) STATES. 423 Scott v. Lloyd. as were specified in a deed from the said Jonathan to Robert J. Taylor, dated the-------day of--------; and that he, the said Jonathan, his heirs and assigns, would, for ever *thereafter, keep the buildings which then were, or thereafter might be, erected on the premises charged, fully insured against fire, in some incorporated insurance office, and would assign the policies of insurance to such trustee as the said William, his heirs or assigns, might appoint ; to the intent, that if any damage or destruction from fire should happen, that the money received on such policies might be applied to rebuilding or repairing the buildings destroyed or damaged ; and that he, the said Jonathan, his hers and assigns, wonld execute and deliver any further conveyance which might be necessary, more completely to charge the premises before mentioned with the annuity aforesaid, and to carry into full effect the intention of the said parties ; and lastly, that he and his heirs would for ever warrant and defend the annuity or rent, so agreed to be granted to the said William, his heirs and assigns, against any defalcations and deductions for, or on account of, any act of him, his heirs or assigns ; and the said William did further corruptly agree, that he would, in the said indenture, covenant for himself, his heirs and assigns, with the said Jonathan, his heirs and assigns, that if the said Jonathan, his heirs or assigns, should at any time thereafter, at the expiration of five years from the date of the said indenture, pay to the said William, his heirs or assigns, the sum of five thousand dollars, together with all arrears of rent, and ratable dividend of the rent for the time which should have elapsed between the half-year’s day then next preceding, and the day on which such payment should be made, he, the said William, his heirs and assigns, would execute and deliver any deeds or instruments which might be necessary for releasing and extinguishing the rent or annuity thereby agreed to be created, which, on such payment being made, should for ever after cease to be payable. And the said John saith, that afterwards, to wit, on the same day and year aforesaid, at the county aforesaid, the said William, in pursuance and in prosecution of the said corrupt agreement, did advance to the said Jonathan the said sum of five thousand dollars; and the said Jonathan and Eleanor his wife, and the said William, did then and there make, seal and duly deliver to each other, respectively, the said deed of indenture, as their several acts and deeds, which said deed was duly acknowledged by the said Eleanor, and admitted to record. And *so the said John saith, that the said deed of indenture, in the said cog-msance mentioned, was made in consideration of money advanced upon and for usury ; and that by thet said indenture there has been reserved and taken above the rate of six dollars in the hundred, for the forbearance of the said sum of five thousand dollars, so advanced as aforesaid, for the term of one year, and that the said John is ready to verify : whereupon, he prays judg-inent, if he ought to be charged with the rent aforesaid, by virtue of the indenture aforesaid ; and forasmuch as the said Charles hath acknowledged t e taking of the said goods and chattels, he, the said John, prays judgment and his damages, on occasion of the taking and unjust detaining of the said goods and chattels, to be adjudged to him, &c. The second plea was in all respects like the first, except it stated, that t e agreement was, that Moore should “ lend ” to Scholfield five thousand o ars. It then stated, that the parties agreed a deed should be made, con- 277 SUPREME COURT [Jan’y , Scott v. Lloyd. taining all the covenants set forth in the first plea. It then averred, that in pursuance and in prosecution of this corrupt agreement, Moore did advance to Scholfield the sum of five thousand dollars ; and that Scholfield and wife, and Moore, made and executed the deed aforesaid, in pursuance of this corrupt agreement, which was duly acknowledged and admitted to record. And that the deed was made in consideration of “ money lent upon and for usury and that by it there had been reserved and taken above the rate of six dollars in the hundred, for the forbearance of the sum of five thousand dollars so lent as aforesaid, for the term of one year. This plea concluded as the first did. The third plea was more general than the first and second. It stated, that before the making of the indenture, that is to say, on the 11th of June 1814, it was corruptly agreed between Scholfield and Moore, that he Moore, should “ advance ” to him, Scholfield, the sum of five thousand dollars, upon the terms and conditions, and in consideration of the covenants and agreements in the indenture mentioned and contained ; and that in pursuance of this corrupt agreement, and in the prosecution and fulfilment of the same, Moore did advance to Scholfield the sum of five thousand dollars, and they, Scholfield and Moore, did make, seal and duly deliver the deed to each party, respectively, as their act and deed. And that the deed was in con-* - sideration *of money advanced upon and for usury, and that by the J indenture there had been taken and reserved above the rate of six dollars in one hundred, for the forbearance of the sum of five thousand dollars, so advanced as aforesaid for the term of one year. This plea concluded as the first did. The fourth plea was like the third, except it is stated, that the agreement was to a lend ” five thousand dollars upon the same terms stated in the third plea. It then averred, that in pursuance and in execution of the corrupt agreement in the indenture mentioned, Moore did “lend” to Scholfield the sum of five thousand dollars ; that the deed was duly executed by the parties, and recorded ; that it was made in consideration of money lent upon and for usury; and that by the said deed there had been reserved and taken above the rate of six dollars in the hundred for the forbearance of the sum of five thousand dollars, so lent as aforesaid, for the term of one year. This plea concluded as the others did. To each of these pleas there was a special demurrer, and particular causes of demurrer assigned. The circuit court, in November 1828, gave judgment for the defendant, and the plaintiff prosecuted a writ of error to this court. (4 Pet. 205.) At the January term 1830, of the supreme court, the judgment of the circuit court was reversed ; and the case was remanded to the circuit court, wi instructions to overrule the demurrers to the second and fourth pleas, an to permit the defendant to plead, and for further proceedings, &c. (4 Pet. 231.) On the coming of the mandate into the circuit court, in Novem er 1830, the demurrers were withdrawn, and there was a general replication o the pleas filed, in November 1827. The case was then, on the application of the defendant, removed to Washington, and a transcript of the recor o proceedings, with the original papers, was transmitted to the clerk of the cir cuit court for the county of Washington. At November term 1832, o t e circuit court, the cause came on for trial, and a verdict and judgment were entered in favor of the plaintiff. The defendant sued out this writ of error. 278 1835] OF THE UNITED STATES. 426 Scott v. Lloyd. On the trial, the counsel of the defendant filed four bills of exception. *These exceptions are set forth at large in the opinion of the court; r4. and the evidence given on the trial of the cause, is particularly stated L in the first exception. The material parts of the deed from Jonathan Scholfield and wife, to William S. Moore, referred to in the pleas of the plaintiff in the circuit court, were : “The indenture is dated the 11th of June 1814, and is from Scholfield and wife, of Alexandria, in the district of Colombia. It recites, that in consideration of five thousand dollars in hand paid by William S. Moore, of the same town, he grants, bargains and sells to the said William S. Moore, his heirs and assigns for ever, one certain annuity or rent of five hundred dollars, to be issuing out of and charged upon a lot of ground ” (describing the premises), “ to be paid to the said, William S. Moore, his heirs and assigns, by equal half-yearly payments of two hundred and fifty dollars, on the 10th day of December, and on the 10th day of June, for ever hereafter : to hold the said annuity or rent, to the said William S. Moore, his heirs and assigns, to his and their own proper use, for ever. And the said Jonathan Scholfield, for himself, his heirs, executors, administrators and assigns, does hereby covenant with the said William S. Moore, his heirs and assigns, as follows, that is to say, that he, the said Jonathan Scholfield, his heirs and assigns, will well and truly pay to the said William S. Moore, his heirs and assigns, the said annuity or rent of five hundred dollars, by equal half-yearly payments, on the 10th day of June, and on the 10th day of December, in each year for ever hereafter, as the same shall become due, and that if the same be not punctually paid, then it shall be lawful for the said William S. Moore, his heirs and assigns, from time to time, on every such default, to enter on the premises charged, and to levy, by distress and sale of the goods and chattels there found, the rent in arrear, and the costs of distress and sale ; and if the same shall remain in arrear and unpaid for the space of thirty days after any day of payment as aforesaid, and no distress sufficient to satisfy the same can be found on the premises charged, then it shall be lawful for the said William S. Moore, his heirs and assigns, to enter on the premises charged, and from thence to remove and expel the said Jonathan Scholfield, his heirs and assigns, and to hold *and enjoy the same, as * ( his and their absolute estate, for ever thereafter. And further, that ‘ $ he the said Jonathan Scholfield is now in his own right seised in fee-simple m the premises charged aforesaid, free from any condition or incumbrance other than such as are specified and provided for in a deed from the said Jonathan Scholfield to Robert I. Taylor, dated the day before the date hereof; and that the said Jonathan Scholfield, his heirs and assigns, will for ever hereafter keep the buildings and improvements which now are or hereafter may be erected on the premises charged, fully insured against fire, in some incorporated insurance office, and will assign the policies of insurance to such trustees as the William S. Moore, his heirs or assigns, may appoint, to the intent, that if any damage or destruction from fire shall happen, the ®°ney may be applied to rebuilding or repairing the buildings destroyed or amaged. And that he, the said Jonathan Scholfield, his heirs and assigns, wi deliver any further conveyance which may be necessary more completely 0 c arge the premises before described with the annuity aforesaid, and to 279 42§ SUPREME COURT [JWy Scott v. Lloyd. carry into effect the intention of the parties hereto. And lastly, that he and his heirs will for ever warrant and defend the annuity or rent hereby granted to the said William S. Moore, his heirs and assigns, against any defalcation or deduction for or on account of any act of him, his heirs or assigns. And the said William S. Moore, for himself and his heirs and assigns, does hereby covenant with the said Jonathan Scholfield, his heirs and assigns, that if the said Jonathan Scholfield, his heirs or assigns, shall at any time after the expiration of five years from the date hereof, pay to the said William S. Moore, his heirs or assigns, the sum of five thousand dollars, together with all arrears of rent, and a ratable dividend of the rent for the time which shall have elapsed between the half-year’s day then next preceding and the day on which such payment shall be made, he the said William S. Moore, his heirs or assigns, will execute and deliver any deed or instrument which may be necessary for releasing and extinguishing the rent or annuity hereby created, which, on such payments being made, shall for ever after cease to be payable.” *4291 *The case was argued by Coxe and Jones, for the plaintiff in J error ; and by Key and Swann, for the defendant. The counsel for the plaintiff in error presented a brief of the grounds on which they claimed that the judgment of the circuit court should be reversed. The brief stated :—On the trial which gives rise to this writ of error, various questions were presented, which appear in the several bills of exception annexed to the record. The first was to the admissibility of Jonathan Scholfield as a witness. The ground on which this witness was objected to are apparent on the record. 1. He was a party to the instrument now sought to be impugned. 2. He was a party in interest. 3. His testimony was incompetent, because it went to vary and contradict the written contract between the parties. Various releases, &c., were adduced by the plaintiff to remove the objection arising from his interest. The second exception presents a question for the decision of the supreme court, growing out of the refusal of the circuit court to instruct the jury, as prayed by the counsel for the defendant. The testimony before the jury was both written and parol. The written embraced the deed between Scholfield and Moore, which is incorporated into the pleas of plaintiff; and the par.ol testimony is that of the several witnesses whose evidence is given at length in the record. The court was asked to instruct the jury, that the contract between said Jonathan Scholfield and William S. Moore, such as it is evidenced by the deed from said Scholfield and wife to said Moore, was lawful, and free from the taint of usury. In order to impeach it of usury, and support the issues of fact joined in this cause, on the part of the plaintiff, it is necessary for the plaintiff to prove that, besides the contract imported by the terms of said deed, there was an actual contract between said Scholfield and Moore for the loan of 85000, at usurious interest; to wit, *4301 a^ ra^e ten Per centum per annum, *to be disguised under the form and name of an annuity or rent-charge, and that such loan was actually lent by said Moore to said Scholfield, and said deed given, in pursuance and execution of such contract and loan, securing the said usurious interest, under the form and name of such annuity or rent-charge ; that the 280 6# 1SIIE ÜNITE1) STATES. 430 Scott v. Lloyd. facts so given in evidence to the jury as aforesaid did not import such a lending of money by Moore to Scholfield at usurious interest, as was sufficient to support the issues joined on the part of the plaintiff in replevin upon the second and fourth pleas by the plaintiff in replevin, pleaded to the cognisance in this case. This instruction the court refused to give, and the defendants excepted, and will contend that such refusal was erroneous. The plaintiff prayed the court, upon the same evidence, to instruct the jury, that the matters shown in evidence to the jury as aforesaid are proper for the consideration of the jury, to determine, from the whole evidence, under the instruction of the court as already given to them in this cause, whether the said contract so made between the said Moore and Scholfield, was in substance and effect a loan at usurious interest, or a bond fide contract for the bargain and sale of a rent-charge; and if the jury, from the said whole evidence, under the instruction as aforesaid, shall believe it to have been such a loan, they should find for the plaintiff; if otherwise, for the defendant. This prayer was granted ; and the plaintiff in error contends, that the instruction should not have been given as prayed. The counsel for the defendant then prayed the court to instruct the jury, that if they shall believe, from the evidence aforesaid, that the land out of which the said rent-charge mentioned in said deed from Scholfield to Moore was to issue, was, in itself, and independently of the buildings upon the same, wholly inadequate and insufficient security for the said rent, that then the jury cannot legally inf er, from the clause in the said deed containing a covenant on the part of said Scholfield to keep the said houses insured, anything affecting said contract with usury or illegality ; which instruction the courts refused to give. The defendant then prayed the court to instruct the jury, that if they shall believe, from the evidence aforesaid, that the *fair and customary price of annuities and rent-charges, at the date of said deed from Scholfield, was, in the market of Alexandria, ten L years’ purchase, and so continued for a period of years, then, from the circumstance of the rent being ten per centum on the amount advanced, the jury cannot legally infer any thing usurious or illegal in the contract. The court refused both the said instructions, and defendant excepted. The counsel for the plaintiff in error contended : 1. That the testimony of «Jonathan Scholfield was incompetent and inadmissible, and should have been excluded. 2. That the court erred in giving the instruction which was given at the instance of plaintiff. 3. That it erred in refusing to give the instructions prayed by the defendant. Coxe, for the plaintiff in error, argued, that Scholfield was not a competent witness. He was the original grantor to Moore of the rent for which the distress was made ; and he afterwards sold the property on which it was secured, to Lloyd. Up to a certain time, he was the real party to the suit—-at its commencement, and for three years afterwards. The covenants in the deed bind him to pay the rent, which, by his testimony, he now seeks to extinguish, and to discharge himself from the obligation of those covenants. The notice of Scholfield to Lloyd, not to pay the rent, and his engagement, in that notice, to indemnify him for resisting the claim of oore, and to protect him from costs, is in full force. Its obligation has not been impaired or released by the subsequent transactions between him 281 431 SUPREME COURT [Jan y Scott v. Lloyd. and Lloyd, by which Lloyd became the owner of the property. The part taken by Scholfield in this case, makes him a privy to the action ; the judgment in the case would be evidence for him, if Moore should resort to the personal covenants in the deed ; which are continuing covenants. Scholfield is a guarantor of the rent to Moore, and if Lloyd does not pay it, he must do so. 4 Binn. 352 ; 1 Stark. Evid. § 58, note 1 ; 3 Esp. 58-9. *4321 Scholfield is introduced to destroy his own contract. This *con- J tract is assignable ; and this objection comes within the principles of the rule which excludes the party to a negotiable instrument, being a witness to destroy its validity ; as much so as a bill of lading, or a stock contract. 3 Dall. 505. The proceedings for the discharge of Scholfield under the insolvent laws of Virginia, passed to the assignees the possibility of interest in the property conveyed to Lloyd ; this interest would be important, if the rent payable to Moore was discharged, or ceased to be a lien on the real estate. The evidence of Scholfield was intended to destroy the lien of the rent, and thus to increase the fund for the discharge of his debts. 3 P. Wms. 132 ; Fearne on Contingent Remainders 549. The second bill of exceptions embodies three propositions. 1. That the contract was not on its face usurious. 2. That besides the written evidence in the deed from Scholfield to Moore, there must be other evidence to show usury; as, a separate usurious contract, on which the deed was given. 3. That the parol evidence was entirely insufficient to show usury. This court has decided (4 Pet. 224), that the contract in the deed is not on its face usurious. This has also been decided at this term, in the case of the Bank of the, United States v. Waggener. If a contract was made other than that in the deed, it should be proved ; and there is no evidence of it. The plea sets out a separate and substantial agreement of usury, other than the deed ; and this must be made out by evidence. There is no such evidence. If there be no stipulation to return the money to the purchaser, and the deed is not a cover for taking usurious interest, it is not a loan. It is essential to a loan, that the thing borrowed is to be returned. The communication of the purpose must be mutual. A meditated loan may be bona fide converted into the purchase of an annuity. 2 Lev. 7 ; 1 And. (new ed.) 47; Cornyn on Usury, 43, 47-8 ; Fuller's Case, 4 Leon. 208 ; Noy 151 j 2 W. Bl. 859 ; 3 Wils. 390 ; 1 Atk. 30; Ord on Usury 23. The instructions required of the court, by the plaintiff in error, should have been given as asked. The third instruction asked of the court was, *4331 whole *matters in evidence, under the instructions already ' J given, were proper for the jury to determine, whether the contract was, in substance and effect, a loan at usurious interest, or a contract for the bargain and sale of a rent-charge. The objection to this is, that it left to the jury the legal effect of the deed. It was not left to the jury, that it was incumbent on the party to show by any testimony, independent of the agreement, that there was a contract for a loan. Thus, the law, as well as t e fact, was submitted to the jury. The attention of the jury was not directe to the true issue in the cause. The intention to take usury was essentia. This the court have said in the case of the Bank of the United States v. Waggener. In the fourth exception, it appears, that the court refused to state the law to the jury. 282 1835] OF THE UNITED STATES. Scott v. Lloyd. .433 Swann, for the defendant in error.—Scholfield was a competent witness. The record in this case could not be used for him ; his interest is, that Lloyd shall be held liable for the rent. 3 Stark. Evid. 1063 ; 1 Munf. 348; 2 Hen. & Munf. 200. By his assignment under the insolvent laws, all his interest in the property, supposing it discharged from the rent by the usurious character of the incumbrance, passed to his creditors; nor is it admitted, that, under any circumstances, he could derive any benefit from any issue of this case. He stands released by all the parties, except the original lender ; all others have discharged him, as appears by the record. By the purchase of the whole property from him, by Lloyd, there no longer existed anything for his agreement to indemnify him for the costs of suit, &c., to operate upon. Suppose, the decision in this case against Lloyd, and he were to sue Scholfield on that agreement, could he recover ? Every contract, by parol, was merged in the contract of 1828, which was under seal. If tenant surrenders to landlord, the covenants of the tenant are merged in the deed. The deed from Scholfield to Moore cannot be viewed as a negotiable paper, and thus prevent Scholfield’s evidence, as his name is to it. 3 T. R. 7 ; 7 Ibid. 56, 180. The objection goes rather to his credit, than to his competency. *The object of both the parties to this suit is, to have the opinion of the court on the main question, of usury, or not usury ? It is ■-contended, that the contract between the parties contains evidence from which the jury might infer usury. A full examination of the evidence will satisfy the court, that the object of Scholfield, who was a necessitous man, was to borrow money, and that of Moore, who was a money-lender, was to obtain a larger rate of interest than was legal. The resort to this rentcharge was a cover to effect these purposes. While it is admitted, that an annuity may, if the transaction is in good faith, and for no other purpose but such purchase, be bought at any fair price ; it is denied, that a negotiation originating in the desire of the owner of real estate to procure a loan of money, when, by the means of a rent-charge secured on his property, this money is obtained at an extravagant rate per annum, is freed from the taint of usury. The circumstances of this case are to be considered and taken together ; and if they are, in fact, but a cover to evade the law, the contract is void. While cases may be found, and some have been cited, in which an annuity produced a greater interest than was legal, and which, although there was no opportunity of redemption, have not been considered usurious, yet the courts of England have, since those cases, examined the matters of the contract with more scrutiny, and have, on the contract, as set forth in the deed creating the annuity, adjudged it usurious, and considered it as a shift to escape from the statute. It is only the good faith of the transaction which will protect it. Within the principles, that no machinery, however well devised; no form of conveyance, however well projected; no concealment, however ingenious—will permit the law prohibiting usury to be eluded, comes that now before the court. Inspection of the deed from Scholfield to Moore, even without the testimony of Scholfield and of the other witnesses, results in the irresistible conclusion, that the whole arrangement was one to secure a igher rate of compensation for forbearance than was legal. There was no hazard, no contingency. The property was ample; the subsequent sale 283 434 SUPREME COURT [jan^y Scott v. Lloyd. made by Scholfield to Lloyd proves this ; the obligation to insure against fire, saved the grantee in the deed from the possibility of loss by fire. *. *In reference t° the obligation to repay the money advanced, although it was not express, the high rate of interest made it an implied obligation, and a certain result. If a man should advance one thousand dollars for ten years, reserving a rent which would repay the amount, with ten per cent, interest, the contract would be usurious. This would be a shift to secure the repayment of the sum advanced, without any express stipulation for the payment. Courts look at the substance of the contract, and decide on its character, after such an examination. A personal obligation to redeem, does not make any difference as to the validity of the contract, if the redemption would be indispensable, as in the case before the court, where the property was worth more than the sum advanced. Cowp. 740, 775 ; 2 Doug. 740 ; Conway’s Executors v. Alexander, 7 Cranch 236. The dictum of Lord Holt, in the case cited by the counsel for the plaintiff in error, from 2 Lev., is not law, although the decision of the case may be right. In that case, there was a real purchase and sale. Had there been a power of redemption, it would have been a cause of suspicion. In 2 Atk. 278, it was held, that a covenant to repay the money was not indispensable ; a power to redeem is suspicious, under circumstances. In 3 Bos. & Pql. 159, the same point was decided. Cited also, 4 Camp. 1 ; 3 Barn. & Aid. 664 ; 3 Har. & Johns. 109, 114 ; 4 Pet. 224. Scholfield not only bound the land for the rent, but he also covenanted personally to pay the amount, and to keep the property insured, and in good repair. This was more than the usual contract for an annuity. The witnesses in this case also prove that there was a bargain ; viz., about the right of redemption; and the lender, Moore, insisted on its being postponed longer than Scholfield desired. Key, also for the defendant in error, insisted on the competency of Scholfield as a witness. He cited, 1 Wheat. 6 ; 1 Phil. Evid. 33, 40, 245, 252 ; 2 Wash. 32. The promise to indemnify Lloyd, made him interested in the event of the suit; but the circumstances were afterwards altered. His * 1 interest became afterwards balanced. A ^recovery against Lloyd -I would excuse him ; and if against Moore, he might be liable. The rule in Walton n. Shelley has been overruled in Jordaine v. Lashbroolce. Cited, 15 Johns. 270 ; 8 Cow. 704 ; 18 Johns. 167 ; 3 Har. & Johns. 172, 3 W. C. C. 5 ; Cornyn 206 ; 11 Mass. 498 ; 8 Pet. 35-6. On the question of usury in the transaction, he contended, that, upon the face of the deed, there was enough to show its usurious character. The return of the money advanced was plainly contemplated, at the end of five years. The prayers on both sides presented no more than the purpose o submitting to the jury, whethei* the transaction was a fair and bona ft purchase of a rent-charge, or whether it was a cloak for usury. The formei decision of this court, in the case, authorized the reference of the dee o Scholfield to Moore, to the jury, as an item for their consideration in examin ing the question of usury. Cited, 7 Cranch 239 ; 2 Pet. 150. As to the fourth prayer of the defendant in the circuit court, it on y singles out particular facts in evidence, and asks instructions to the jury upon them, when the court had already given instructions on the w o 284 1835] OF THE UNITED STATES. 436 Scott v. Lloyd. evidence. No new question was presented by this prayer, and the action of the circuit court upon it was legal and proper. Jones, in reply.—Scholfield was an incompetent witness. He was grantor of the rent-charge ; and he became insolvent in 1822, was in confinement at the suit of creditors, and discharged under the insolvent laws of the state of Virginia. He sold the property, liable to the rent-charge, to the defendant in error, and the value of the same must have been deducted from the price paid by Lloyd ; who will, therefore, be accountable to Scholfield or to his creditors, if the rent-charge is gotten rid of ? The amount thus payable, in the event of success in this controversy, is held in trust for certain preferred creditors of Scholfield, and only a part of those creditors. It was part of the agreement made when Lloyd first resisted the claim of the rent, that Scholfield would indemnify him for all the costs and consequences of this resistance ; and this ^obligation is not affected in any way by any of the subsequent transactions between them ; nor has he been released *- 1 by Lloyd from this liability. This discharge, under the insolvent law of Virginia, was only extended to the plaintiff in the execution under which he was in confinement, and not to his liability to other creditors; unless the property assigned by him at the time of his discharge, will fully pay all his creditors. And this discharge did not in any manner affect his obligation of indemnity. A mere possibility passes to creditors under the bankrupt act; and if this rent-charge is extinguished, the benefit of the extinguishment will go to the creditors, and will go so far to satisfy the debts of Scholfield. Upon more general grounds, Scholfield is not legally a witness. Admitting he has no pecuniary interest in the result of this suit, he is inadmissible, by reason that he is a party to the alleged corrupt agreement with Moore, and is called upon to destroy his own deed. This case comes within the rule in Walton v. Shelley, which has been adopted and confirmed by this court. The principle in that case extends to all instruments. It is an estoppel, by general principles, that a man shall not be permitted to destroy his own deed. But, waiving this, Scholfield is substantially a party. This is not dependent on the result of the suit. It may not be a legal privity ; whether equitable or legal, it is enough. Cited, 2 Ld. Raym. £30 ; Hardr. 472 ; 2 Stark. Ev. 193 ; Sch. & Lef. 410 ; 9 Ves. 316 ; 2 Doug. 517 ; Stark. Ey. 194, and the note of the cases cited. As to the verdict and judgment being used by Scolfield in a suit against him for the rent-charge : cited, Peake’s Ev. 74, and cases referred to; 1 Wils. 257 ; 4 Camp. 201; 5 Esp. 121 ; 11 East 578 ; 1 Taunt. 104. If parties are substantially the same, the objection lies to their privity, and is not confined to blood. 2 Stark. Ev. 194; Phil. Ev. 74-5 ; 1 Bing. 45. On the question of usury, Mr. Jones contended, that there was no evidence, which, if admitted, could have induced a jury to believe there was any usury in the transaction. There is no objection on the ground of deal-lng ln annuities and rent-charges,* whatever may be the rates at w ich they may be purchased or sold. All the cases on this subject L arV°^ected *n Comyn on Usury. Annuities are fair objects of purchase an sale. 1 Com. Dig. 621. It is admitted, that if there was any security ^ven to return the money paid, it is enough to vitiate the contract; but 438 SUPREME COURT Scott v. Lloyd. [Jan’y this was not so. It was no more the case, than in any other purchase of an annuity or rent-charge, when the annual sum paid exceeds the legal interest of the purchase-money. The right to repay the money reserved in the deed from Scholfield to Moore, was not an obligation to repay it, and thus the case is unaffected by this feature in it. The circuit court, by their instructions, referred the construction of the deed to the jury. As there was no evidence, out of the deed, from which a contract for usury could be inferred, the court ought to have told the jury that there was no evidence of any usury. Marshall, Ch. J., delivered the opinion of the court.—This is an action of replevin, instituted in the circuit court for the county of Alexandria, and removed, for trial, to the county of Washington. The plaintiff in error, the original defendant, avowed as bailiff of William S. Moore, that the goods replevied were distrained for rent in arrear. The plaintiff in replevin, after craving oyer of the deed, by which the rent alleged to be in arrear was reserved, pleaded the statute of usury, in bar of the claim. The plea alleged, that the contract between the parties was a corrupt and usurious lending of the sum of $5000, upon an interest of ten per centum per annum. Other issues were joined in the cause, but they are not noticed, because they are of no importance. . On the trial, the plaintiff in replevin offered Jonathan Scholfield as a witness, who was objected to by the avowant, but admitted by the court, and to this admission, the avowant excepted. In support of his objection to the competency of the witness, the counsel for the avowant exhibited a deed, executed on the 11th of June 1814, by Scholfield and wife, to Wil-# , liam S. Moore, *by whose authority the distress was mAde ; by which the said Scholfield and wife, in consideration of $5000 paid by the said Moore to the said Scholfield, granted to the said William S. Moore, his heirs and assigns for ever, one certain annuity or rent of $500, to be issuing out of, and charged upon, a lot of ground, and four brick tenements, and appurtenances thereon erected, lying in the town of* Alexandria, and pai-ticularly described in the deed. Also, a deed between the said Scholfield and wife, of the first part, John Lloyd, the plaintiff in replevin, of the second part, and Andrew Scholfield, of the third part ; conveying to the said John Lloyd the lot out of which the annuity or rent-charge of $500 had been granted to William S. Moore. This deed contains several covenants, and, among others, a stipulation that the lot shall remain subject to the annuity to William S. Moore. Also, the following letter from Scholfield to Lloyd. “Alexandria, June 9th, 1824. “Sir:—As you hold under me the property on which I granted a ren -charge of five hundred dollars a year to William S. Moore, I now give you notice, the contract by which that rent-charge was created I consider to e usurious, and that I shall take measures to set aside the same ; and I here require you to withhold from William S. Moore the payment of any furt er money, on account of this rent-charge ; and in case distress should be ma e upon you for the rent, I promise to save you harmless, if you will resist t e payment, by writ of replevy. I wish you to understand, that if you ma 286 1835] OF THE UNITED STATES. 439 Scott v. Lloyd. any further payments, after receiving this notice, that yon make them at your own risk. I am, with great respect, yours, Jonathan Scholfield.” “To Mr. John Lloyd.” This letter was delivered to Mr. Lloyd on the day of its date. Also, a deed of the 18th of November 1826, from said Scholfield, making a conditional assignment of one-fifth of said annuity $500, to Thomas K. Beale, in which he recites and *acknowledges his responsibility r* to Lloyd, on account of the distress for rent made by William S. L Moore. Also, an exemplification of the record of the proceedings in the county court of Fairfax, in the commonwealth of Virginia, upon the insolvency and discharge of the said Scholfield, as an insolvent debtor, in May 1822. Whereupon, the plaintiff in replevin, to support the competency of the said Scholfield, laid before the court the following documents. A release from said Scholfield to the plaintiff in replevin, dated the 13th day of June 1831, whereby said Scholfield, in consideration of $5000, released by him to the said Lloyd, out of a debt due by him to Lloyd, grants to said Lloyd all the right, title and interest, which he has or may have, from the decision of the suit depending for the annuity or rent-charge, granted to Moore, or which he has, or may have thereafter, to the brick buildings upon which the said annuity or rent-charge is secured. He also releases the said Lloyd from all covenants or obligations, expressed or implied, arising out of the deed of assignment from him to said Lloyd ; and also from all claims, &c., which now exist, or may hereafter arise, out of the said deed, &c. Also, a release, from the same to the same, dated 25th April 1828, in which Scholfield releases to Lloyd all his right, &c., to the said suit, &c., and to all sums of money which may accrue, and from all actions, &c., on account of the said suit, &c. Also, a release of the same date from Thomas K. Beale and James M. McCrea, releasing the said Jonathan Scholfield from $950, part of a debt of $2000, due from him to them. Also, a release from Joseph Smith, of same date, releasing $1150, part of a debt of $3000, due to him from said Scholfield. Also, a release of William Veitch and Benoni Wheat, discharging the said Scholfield from $250, part of a debt of $800, due to them from him. Also, an engagement of John Lloyd, dated the 25th of April 1828, binding himself to the several persons who executed the foregoing releases, for the several sums released by them, in the *event of his succeeding in the suit then depending between himself and L Charles Scott, bailiff of William S. Moore. Also, a release from John Lloyd, stating, that whereas, Jonathan Scholfield stood indebted to him in a arge sum of money ; he had agreed to release, and did thereby release, the said Scholfield from $5000, part of the said debt. In discussing the competency of the witness, some diversity of opinion prevailed, on the question whether he could be received to invalidate a paper executed by himself; but, without deciding this question, a majority of the court is of opinion, that he is interested in the event of the suit. is letter of the 9th of June, to John Lloyd, the tenant in possession, requiring him to withhold from William S. Moore the payment of any fur-er sum of money, on account of this rent-charge, contains this declaration: 287 441 ’ 'supreme COURT " * [Jan’y Scott v. Lloyd. “ And in case distress should be made upon you for the rent, I promise to save you harmless, if you will resist the payment, by writ of replevy. I wish you to understand, that if you make any further payments after receiving this notice, that you make them at your own risk.” This is an explicit and absolute undertaking, to assume all the liabilities which Mr. Lloyd might incur, by suing out a writ of replevin, if an attempt should be made to levy the rent by distress. Mr. Scholfield, then, is responsible to Mr. Lloyd for the costs of this suit. This is a plain and substantial interest in the event of the suit, from which Mr. Lloyd alone can release him. This liability was incurred before the sale and release from Scholfield to Lloyd of the 13th of June 1831 ; and Mr. Scholfield’s responsibility depended on the decision of the suit in which he was called as a witness, unless his release to, and contract with, Lloyd, of the 13th of June 1831, could discharge him from it. That contract transferred to Lloyd all the interest of Scholfield in the ground charged with the rent to Moore, but did not transfer with it his obligation to save Lloyd harmless, for resisting the claim of Moore to the rent in arrear. It produced a state of things which removed all motives, on the part of Scholfield, for incurring fresh liabilities, but did not discharge him from liabilities already incurred. It placed in his hands the entire management of the suit, but did not enable him to undo what was done, or to relieve himself from the claim of Moore to costs, *¿14.91 s^ou^ the suh terminate in his favor. *The responsibility of Lloyd J to Moore continued, and the correlative responsibility of Scholfield to Lloyd still continued also, unless Lloyd had released him from it. Now, there is no expression in the contracts between the parties, which purports to be such a release. It has been inferred, as the result of the change in the situation of the parties, but we do not think the inference justified by the fact. The obligation is unequivocal; is expressed in ^lain and positive terms ; is dependent on the event of the suit, and independent of the ownership of the property. The parties enter into a contract by which the property is transferred, without making any allusion to this obligation. It remains, we think, in full force ; and, consequently, Jonathan Scholfield was an interested and incompetent witness.1 In the progress of the examination, the plaintiff’s counsel put to the witness the following question—“ Did you, in the course of your discussions as to the time you were to keep the money, state your object in the application to be, to have the use of $5000 for a limited time ?” To whidh the defendant’s counsel objected, as being a leading interrogatory. The plaintiff’s counsel then varied the question, as follows : “ Did you, or did you not, in the course of your discussions, &c.” To which the defendant’s counsel made the same objection ; but the court overruled the objection, and permitted the question to be put; and the defendant excepts to that decision. Although the plaintiff’s counsel objected to this question, and said, that he excepted to the opinion of the court, no exception is actually prayed by the party, or signed by the judge. This court, therefore, cannot consider the exception as actually taken, and must suppose it was abandoned. 1 But see 12 Pet. 145. 288 1835] OF THE UNITED STATES. 442 Scott v. Lloyd. Evidence was given by the plaintiff in replevin, conducing to prove, that the contract between Scholfield and Moore, under which the sum of $5000 was advanced by the latter to the former, originated in an application for a loan of money ; not for the purchase and sale of a rent-charge or annuity. Scholfield applied to Moore to raise *or borrow $5000, securing him on an annuity or ground-rent for one year; Moore proposed to let him have the money for ten years, on the same security. After much discussion, the parties agreed to split the difference, and that Scholfield should keep the money five years. Scholfield says, his first proposition was *• to allow ten per cent., and to secure it by an annuity or ground-rent on the houses mentioned in the deed. No other interest but ten per cent, was mentioned ; Scholfield had no intention of selling the property. It was also in evidence, that Moore was a money-lender, and was in the habit of advancing money, secured on ground-rents or annuities; and that Scholfield was a money borrower ; and that the property was an ample security for the money lent, and for the annuity. On the part of the avowant, it was proved, that the usual value of those ground-rents or annuities, charged on lots in Alexandria, was such as to afford an interest of ten per cent, per annum on the principal sum advanced ; and it was admitted by Scholfield, that he gave Moore no promise, stipulation or security for the return of the $5000, other than is contained in the deed itself. Many witnesses were examined, and a great deal of testimony, bearing more or less directly on the contract, was adduced. The deed from Scholfield and wife to W. S. Moore, by which, in consideration of $5000, the annuity or rent-charge of $500 per annum was created, contains a covenant “ that then the said J. Scholfield, his heirs and assigns, will well and truly pay to the said W. S. Moore, his heirs and assigns, the said annuity or rent-charge of $500, by equal half-yearly payments, on the 10th day of June and on the 10th day of December, in each year, for ever hereafter, as the same shall become due ; and that if the same be not punctually paid, then it shall be lawful for the said W. S. Moore, his heirs and assigns, from time to time, on every such default, to enter on the premises charged, and to levy, by distress and sale of the goods and chattels there found, the rent in arrear, and the costs of distress and sale ; and if the same shall remain in arrear and unpaid for the space of thirty days after any ay of payment, as aforesaid, and no distress sufficient to satisfy the same can be found on the premises charged, then it shall be lawful for the said • S. Moore, his heirs and assigns, to enter on the premises charged, and rom thence to remove and expel the said J. Scholfield, his heirs and assigns, an to hold and enjoy *the same, as his and their absolute estate, for * ever thereafter.” “ And that the said J. Scholfield, his heirs and l assigns, will for ever hereafter keep the buildings and improvements which now are, or hereafter may be, erected on the premises charged, fully insured against fire, in some incorporated insurance office, and will assign the policies 0 insurance to such trustees as the said W. S. Moore, his heirs or assigns, ®ay appoint; to the intent, that if any damage or destruction from fire shall Ppen, the money received on such policies may be applied to rebuilding or pairing the buildings destroyed or damaged. And lastly, that he and his eirs will for ever warrant anj defend the annuity or rent-charge hereby ante to the said W. S. Moore, his heirs and assigns, against any defalca- Pet.—19 289 444 SUPREME COURT [Jan’y Scott v. Lloyd. tion or deduction, for or on account of any act of him, his heirs or assigns.” The deed contained a further covenant, that if, at any time after five years, the said J. Scholfield should pay to the said W. S. Moore the sum of $5000, with all arrears of rent, &c., then the said W. S. Moore will execute any deed releasing or extinguishing the said rent or annuity. When the testimony was closed, the counsel for the defendant and avowant prayed the court to instruct the jury, “ that the contract between said Jonathan Scholfield and William S. Moore, such as it is evidenced by the deed from said Scholfield and wife to said Moore, set out in the proceedings and given in evidence by the plaintiff as aforesaid, was lawful and free of the taint of usury ; and in order to impeach it of usury, and support the issues of fact joined in this cause, on the part of the plaintiff, it is necessary for the plaintiff to prove, that besides the contract imported by the terms of said deed, there was an actual contract between said Scholfield and Moore, for the loan of $5000 at usurious interest, to wit, at the rate of ten per cent, per annum, to be disguised under the form and name of an annuity or rentcharge ; and that such sum was actually lent by said Moore to said Scholfield, and said deed given in pursuance and execution of such contract and loan, securing the said usurious interest, under the form and name of such annuity or rent-charge ; that the facts given in evidence to the jury as , aforesaid, to support the issues above joined on the part *of the plain-' tiff, did not import such a lending of money by Mooie to Scholfield, at usurious interest, as was sufficient to support the issues joined on the part of the plaintiff in replevin, upon the second and fourth pleas by the plaintiff in replevin, pleaded to the cognisance in this case.” Which instruction the court refused to give ; to which refusal, the defendant and avowant, by his counsel, prayed an exception, which was signed and sealed. The substantial merits of the case are involved in the subsequent instructions which the court actually gave ; and it will be apparent, when we proceed to the consideration of those instructions, that if they ought to have been given, this ought to have been refused. There are, however, objections to the manner in which these instructions are framed ; which ought not to have been overlooked by the court. The statute against usury not only forbids the direct taking of more than six per centum per annum, tor the loan or forbearance of any sum of money, but it forbids any shift or device, by which this prohibition may be evaded, and a greater interest be in fact secured. If a larger sum than six per cent, be not expressly reserved, the instrument will not of itself expose the usury ; but the real corruptness of the contract must be shown by extrinsic circumstances, which prove its character. Those circumstances must, of course, be viewed in connection with the contract. The counsel for the avowant asks the court to sepaiate the instrument from its circumstances, and to inform the jury, that t e instrument itself was lawful, and free from the taint of usury; and that to fix this taint upon it, the plaintiff in replevin must prove, besides the con tract in the deed, an actual contract, stipulating interest at the rate of ten per centum per annum, for the loan of $5000. Had this instruction een given, circumstances which demonstrated the intention of the parties, an explained completely the contract actually made, if such existed, must been disregarded by the jury. The court is next requested to say to e jury, that the facts given in evidence did not import such a lending as wou 290 1835] OF THE UNITED STATES. 445 Scott v. Lloyd. support the issue. The court is thus asked to usurp the province of the jury, and to decide on the sufficiency of the testimony, in violation of the well-established principle, that the law is referred to the court, *the . . fact to the jury. The court did not err, in refusing to give this instruction. “ The plaintiff then prayed the court further to instruct the jury, that the matters shown in évidence to the jury as aforesaid, are proper for the consideration of the jury, to determine, from the whole evidence, under the instruction of the court, as already given to them in this cause, whether the said contract so made between the said Moore and Scholfield was, in substance and effect, a loan at usurious interest, or a bond fide contract for the bargain and sale of a rent-charge ; and if the jury, from the said whole evidence under the instructions as aforesaid, shall believe it to have been such a loan, they should find for the plaintiff ; if otherwise, for the defendant.” The court gave this instruction, and the defendants excepted to it. Its correctness is now to be examined. The statute declares, “ that no person shall, upon any contract, take, directly or indirectly, for loan of any money,” &c., in hi8 answer, avers that both contracts were, in truth, what -I they purported to be, bond fide agreements to purchase and resell the slaves therein mentioned. The slaves not being redeemed, Garland, with full knowledge of the usury, as the bill charges, became jointly interested with Jacobs in both contracts. In August 1816, they procured Clarksons bond for $7000, being the aggregate of both debts, with further usury for forbearance. The court declared both contracts to be usurious. Douglass v. McChesney, 2 Rand. 109, was a bill to be relieved from two bonds and a deed of trust, given by the plaintiff to the defendant. The i states, that Douglass applied to McChesney to borrow $500; McChesney replied, that it was his practice, whenever he lent money, to sell a horse, which Douglass professed his willingness to purchase. Some time a er wards, the complainant went, by appointment, to the house of McChesney, who showed him a horse for which he asked $400. The plaintiff avers, t a 298 1835] OF THE UNITED STATES. 45g Scott v. Lloyd. the horse was not worth more than $80 or $100, but, urged by his necessities, and knowing that he could not get the $500 from McChesney, without giving his price for the horse, he assented to the proposal, and executed two bonds for the money, which were secured by a deed of trust. When the bonds became due, McChesney advertised the property for sale ; and this bill was brought to enjoin further proceedings, and to be relieved. The testimony proved, that the horse was not worth more than $100, and that it was reported to be McChesney’s practice, when he lent money, to sell a horse at an exorbitant price, to cover a usurious gain. The chancellor dissolved the injunction, and the plaintiff appealed. The court of appeals was of opinion, that a tacit understanding between the parties, founded on a known practice of the appellee to lend money at legal interest, if the borrower purchased of him a horse at an unreasonable price, would be a shift to evade the statute of usury. The decree was reversed ; but the court being of opinion, that the questions of fact would be decided more under-standingly by a jury, on vivd voce testimony, remanded the cause *to the court of chancery, with directions to have issues tried to ascer- L tain the value of the horse, arid whether Douglass was induced to purchase him at the price of $400, by the expectation of a loan.1 The covenants in the deed of the 11th of June 1814, granting the annuity have been stated. They secure the payment of ten per cent, for ever, on the sum advanced. There is no hazard whatever in the contract. Moore must, in something more than twenty years, receive the money which he advanced to Scholfield, with the legal interest on it, unless the principal sum should be returned after five years ; in which event, he would receive the principal, with ten per cent, interest till repaid. The deed is equivalent to a bond for $5000, amply secured by a mortgage on real property, with interest thereon at ten per centum per annum, with liberty to repay the principal, in five years. If the real contract was for a loan of money, without any view to a purchase, it is plainly within the statute of usury ; and this fact was very properly left to the jury. There is no error in this instruction. The counsel for the defendant then prayed the court to instruct the jury, that if they shall believe from the evidence aforesaid, that -the land out of which the said rent-charge mentioned in said deed from Scholfield to Moore was to issue, was, in itself, and independently of the buildings upon the same, wholly inadequate and insufficient security for said rent; that then the jury cannot legally infer, from the clause in said deed, containing a covenant on the part of said Scholfield to keep the said houses insured, anytning affecting said contract with usury or illegality; which instruction the court refused ; whereupon, the defendant prayed the court to instruct jury as follows, to wit, that if the jury shall believe, from the evidence, that the fair and customary price of annuities and rent-charges, at the date of the said deed from Scholfield, was, in the market of Alexandria, ten years purchase, and so continued for a period of years, then, from the circumstances of the rent being ten per centum on the amount advanced, ue jury cannot legally infer from such circumstance, any thing usurious or 1 egal in the contract. But the court refused to grant the said instructions, And see Starkweather v. Prince, 1 McArthur 144 ; Quackenboss v. Sayer, 62 N. Y. 344. 299 459 SUPREME COURT [Jan’y Fenwick v. Chapman. or either of them, as prayed by the counsel for the defendant; whereupon, *the said counsel excepted to the said opinion of the court, and its *460] refusai give either of the said instructions as prayed. It is obvious, that the instructions given by the court, at the prayer of the plaintiff’s counsel, cover the whole matter contained in this prayer of the defendant. It is, in truth, an effort to separate the circumstances of the case from each other, and to induce the court, after directing the jury that they ought to be considered together, to instruct them that, separately, no one of them amounted itself to usury. The court ought not to have given this instruction. It was proper to submit the case, with all its circumstances, to the consideration of the jury ; and to leave the question whether the contract was, in truth, a loan, or the bond fide purchase of an annuity, to them. There is no error in the opinion of the court, refusing the second and fourth instructions prayed by the defendant and avowant in the court below, nor in giving the instructions prayed by the plaintiff in replevin; but this court is of opinion, that the circuit court erred in deciding that Jonathan Scholfield was a competent witness for the plaintiff in that court. This court doth, therefore, determine, that the judgment of the circuit court be reversed and annulled, and that the cause be remanded to that court, with directions to set aside the verdict, and award a venire facias de novo. This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby reversed and annulled ; and that this cause be and the same is hereby remanded to the said circuit court, with directions to set aside the verdict, and award a venire facias de novo. *461] *Robert Fenwick, Plaintiff in error, v. Eliza Chapman and Robert Chapman, by Kitty Chapman, their mother and next friend, Defendants in error. Slavery.—Manumission. By the Statute of Maryland, of 1796, ch. 67, § 13, manumiasions of slaves, by will and testament, may be made to take effect at the death of the testator; the testator may devise or charge r real estate with the payment of debts, to make the manumission effective, and not in preju c of creditors. • f the The right to freedom may be tried at law, in a suit against the executors, at the instance o manumitted slaves; and the executor may, in such suit, admit the existence of a su cie of real assets or real estate to pay the debts of his testator. _ A judgment at law in favor of manumitted slaves, in a suit against an executor, obtaine on admission by the executor of a sufficiency of assets, may be set aside in equity, if sue a mi sion was made, without foundation in fact, or in fraud or mistake. In such a procee mg equity, to which the executor, the manumitted slaves, and all persons intereste made parties, there may be an entire review of the administration of the estate, o t e con of the executor, and that of the creditors, in regard to the estate, and in respect to e o lance of the executor in paying, and of the creditors in the Dursuit of their debts. 300 1835] . OF THE UNITED STATES. 461 Fenwick v. Chapman. The words in a will, “ after my debts and funeral charges are paid, I devise and bequeath as follows,” amount to a charge upon the real estate for the payment of debts. When a testator manumits his slaves, by will and testament, and it clearly appears to have been his intention, that the manumission shall take place at all events, the manifest intention, without express words to charge the real estate, will charge the real estate for the payment of debts if there be not personal assets enough, without the manumitted slaves, to pay the debts of the testator. In such a case, the creditors of the testator must look to the real estate for the payment of debts, which remain unpaid, after the personal estate, exclusive of the manumitted slaves, has been exhausted ; and they may pursue their claims in equity, or according to the statutes of Maryland, subjecting real estate to the payment of debts. When an executor permits manumitted slaves to go at large and free, under manumission to take effect at the death of the testator, he cannot recall such assent; nor can it be revoked, under an order of the orphans’ court of Maryland, for the sale of all the personal estate of the testator ; that court not having jurisdiction of the question of manumission. It being admitted, that a testator left real estate to an amount in value more than sufficient to pay his debts, without the sale of slaves manumitted by his will, those persons are free, notwithstanding a deficiency of personal assets. Chapman v. Fenwick, 4 Cr. C. 0. 431, affirmed. *Error to the Circuit Court of the District of Columbia, and r*.™ county of Washington. The defendants in error instituted a suit in the circuit court, to recover their freedom, alleging that they were entitled to it, under the last will and testament of their late mistress, Frances Edelin, deceased, in the state of Maryland. The plaintiff in error claimed the petitioners as his slaves, having purchased them of the sole acting executor of the deceased, at a sale made by the order and authority of the orphans’ court of Prince George’s county, in Maryland ; and by the consent of all parties to the suit, the executor was admitted to defend the same in the court below. It was proved in the circuit court, that the slaves were sold by the executor, with all the other personal estate of the deceased, by authority of the aforesaid orphans’ Court, as assets in the hands of the executor, to pay the debts of the deceased ; there not being assets enough to pay the same, without the sale of said slaves, and without recourse to the real estate. It was contended, that the sale was a good one, and that the slaves were not entitled to their freedom. The following facts in the case were agreed, and submitted to the court, with the other evidence in the case, and making a part of the record now before this court. It is agreed in this case : 1. That the petitioners are the same named in the will of Frances Edelin, deceased, to whom she gave their freedom, after her death, as appears by the said will, a copy whereof is hereto annexed. 2. That Edelin, the defendant, was the executor of the last will and testament of said deceased, and as such, sold, in the year 1833, said petitioners to the other defendant, Fenwick. 3. That the sale of the petitioners was made in Prince George’s county aforesaid, where the deceased lived at the time of her death, and where the petitioners were ; and that, from the time of deceased’s death, to the time of their sale, they were permitted by the executor to go at large, as free, and that after the purchase made by Fenwick, e brought them to the district of Columbia, where the present suit was instituted ; and that after the institution of the said suit, Fenwick transferred is claim to the petitioners, to the defendant, Edelin, who repaid him his money, and appears to defend the suit. 4. *That the deceased left iea estate to an amount in value more than sufficient to pay her debts, 301 463 SUPREME COURT [Jan’y Fenwick v. Chapman. without the sale of the negroes emancipated by the will, as will appear by her will referred to, and made a part of this agreement; but not personal estate sufficient. 5. That the original copy of all the proceedings had in the orphans’ court of Prince George’s county, relative to the settlement of the deceased’s estate, by her executors or administrators, may be filed as part of this case. The will of Frances Edelin, the proceedings in the orphans’ court of Prince George’s county, and all the material facts in the case, are fully stated in the opinion of this court, delivered by Mr. Justice Wayne. Upon a hearing in the circuit court, judgment was given in favor of the petitioners in that court, now defendants in error, and from that judgment a writ of error was sued out to this court. The case was argued by Brent, for the plaintiff in error ; and by Key, for the defendants. Brent stated, that the only questions for the court to decide, are, whether • the defendants in error are entitled to their freedom or not, under the circumstances of the case ; and whether the plaintiff in error (the executor) had, or had not, the right to sell them, as assets, to pay the debts of the testator. After reading the petition, the answer, and the agreement as to the facts in the case, and the will of Frances Edelin, he referred to the proceedings in the orphans’ court of Prince George’s county; which showed that the personal estate of the testator was insufficient to pay the debts of the deceased ; and that under these circumstances, the orphans’ court ordered the sale of the negroes, and they were sold. Prior to the year 1796, there could not be, under the laws of Maryland, a manumission of slaves by will. This act was, in 1796, repealed, under certain limitations ; and among them, that no such manumission is available, if done in prejudice to creditors. The first ground for the reversal of the judgment of the circuit court, is, that this manumission was in prejudice * , of creditors. The fact of the insufficiency of the personal estate, J *exclusive of those negroes, is established by the proceedings of the orphans’ court, and the accounts of the executor. Creditors are not bound to resort to the real estate for the satisfaction of their claims, when personal estate can be found. Cited, 1 P. Wms. 294 n ; 2 Ibid. 664 ; 1 Rob. on Wills 67 ; Kelty’s Laws of Maryland, Act of 1798, ch. 101, sub-div. 7. This act declares what shall be assets for the payment of debts ; among which are negroes. In a case in 1 Har. & Gill, the testator charges his land with the payment of debts, rather than that his negroes shall be sold, and deprived of their freedom, which is given to them. In this case, the question as to the ponstruction of the act of 1796, was waived. Key, contra.—The testator died in 1825, and, by her will, she charges her whole estate with the payment of her debts, both real and personal, and gave freedom to the defendants in error. The executor assented to the bequest of freedom ; they were at liberty for eight years; when, under an order of the orphans’ court, to which they were not parties, and of the proceedings of which court they had no notice or knowledge, they were taken and sold. Over such a case, that court had no authority or jurisdiction. The court could not manumit. It will be found, on an examin- 302 1835] OF THE UNITED STATES. Fenwick v. Chapman. 464 ation of the proceedings of the orphans’ court, that, in July 1833, the balance due the executor was $591, and the court did not specifically order the negroes sold. The order was general, to sell all the personal estate, and not to sell any particular part of it. This is shown by the acts agreed. By the 24th chapter of the law of Maryland of 1729, negroes are not to be sold, so long as there are other goods. In this case, the only debts are to the* executor himself, for over-payments by him in his administration of the estate ; and he is the residuary legatee. All the legatees, on a deficiency of other assets, must contribute. 2 Vern. 708 ; 2 Madd. Ch. 109. 107 ; 2 Ves. jr. 415, 420. Where it may be collected from a will, that any particular legacy should be paid, and exempted from contribution, in the *event of a deficiency to pay debts, it shall be done. In the case of a bequest of freedom, there L must, from its very nature, be such an intention. How could the negroes be made to contribute ? The whole of the bequest is defeated, and its purpose destroyed, if the executor has a lien on the freedom of the negroes for contribution. Freedom cannot be parted, it cannot be enjoyed, nor does it exist, unless it is entire. Any restraint upon it, which puts in the power of another a right to sell a part of it, destroys it altogether. No inference can be drawn from the bequest of freedom, but that it was entire and unincumbered. It was fully, completely and irrevocably bestowed, when it was given at all. Nor does the law warrant the claim which is made by the counsel for the plaintiff in error ; that because there is a deficiency of personal estate, when the real estate is also charged with the debts of the testator, personal estate, specially bequeathed, shall be taken from a legatee and sold, leaving the real estate free and unmolested. It is also contended, that the executor, having consented to the freedom of the defendants in error, cannot afterwards withdraw this consent, and subject them to slavery. Once free, always free. By no law or proceeding, existing or authorized in any state of the United States, can they again be made slaves. Where a legacy has been assented to, or paid by an executor, it cannot be recovered back. This principle applies to the case before the court, as the freedom of the defendants was assented to by the executor, vited, in support of the discharge of the legacy from reclamation, 1 Vern. 94; 2 Vent. 358 ; 2 Chan. Cas. 145 ; 1 Chitty’s Dig. 630. Brent, in reply, insisted, that real estate can be resorted to in no other case, but where there is a deficiency of personal estate ; and even in such a case, by the law of Maryland, an application to make the real estate liable must be made to the chancellor. The testatrix does not charge her whole estate with her debts. This is not the true interpretation of the will. When debts are charged by a estator on an estate, that portion of it which, *according to law, is t held liable to debts, is understood to be so charged in the first L ace; •^'^8 *s a jus^ and legal execution of the will. In Roberts on Wills > it is laid down, that real estate will not be ordered for sale, to save a charity. Cited also, 1 P. Wms. 294. , denied, that the executor could give the negroes their freedom, to e prejudice of creditors. Their rights could not be affected by any act of 303 466 SUPREME COURT [Jan’y Fenwick v. Chapman. the executor. Nor did he give them their freedom ; he barely allowed them to go at large. Wayne, Justice, delivered the opinion of the court.—The object of this writ of error is, to reverse a judgment of the circuit court of the district of .Columbia, for alleged error in having adjudged the defendants in error (colored persons) to be free and discharged of and from the service of the plaintiff in error. The judgment of the court was rendered upon a statement of facts entered into at the trial term of the court, signed by the counsel of the parties. It is necessary, however, to set out the facts in the case more in detail, as they appear by the record of the proceedings in the cause. Eliza Chapman and Robert Chapman, infants and colored persons, by their mother and next friend, claiming to be free by the laws of the land, allege, that they are illegally detained and confined in custody, by one Robert Fenwick, who sets up some pretended claim or title to them, as his slaves for life. They pray that a subpoena may issue to the marshal of the district of Columbia, commanding him to summon the said Robert Fenwick to be and appear before the judges of the circuit court of the district of Columbia for the county of Washington, to answer the allegation of the petitioners in the premises. The subpoena was issued ; and on the day of the return of it, the defendant appeared by his attorney, and in his plea denied that the petitioners were entitled to their freedom, as alleged ; and put himself upon the country. Before the trial of the issue, by consent of all parties, one Richard J. Edelin was admitted as a party defendant; he being the executor of the last will and testament of Frances Edelin, deceased, late of Prince George’s *4671 county’ Maryland ; and having, *as such, sold the petitioners to the -I defendant, Robert Fenwick, as the executor contends, in virtue of an order of the orphans’ court of Prince George’s county, to sell all the personal estate of Frances Edelin. This order was made upon the petition of the executor, dated 16th July 1833 ; in which he states, that Frances Edelin, by her will, had directed that certain negroes should be free at her death ; and that he had discovered there were not assets enough, independent of those negroes, to discharge the debts of the testatrix. The executor had included the negroes manumitted by the will, in an inventory and appraisement of the personal estate of the testatrix, returned by him to the orphans’ court, on the 17th of January 1826. The will is dated the 2d day of November 1825. The testatrix died before the 8th day of December of the same year; an immediately after her death, the defendant, Richard J. Edelin, took upon himself the burden and execution of her will. The testatrix begins her will in the following words : “ In the name o God ! Amen. I, Frances Edelin, of Prince George’s county, in the state o Maryland, being of sound and disposing mind, memory and understanding, do make and publish this my last will and testament, in manner an form following. First, and principally, I commit my soul to the mercies o my dear Redeemer and Lord Jesus Christ, and my body to the earth, to e decently buried ; and after my debts and funeral charges are paid, I eyise and bequeath as follows Then follow sundry devises and specific legacies, and so much of the will relating to the freedom of the defendants in error, and to the other persons manumitted by the will, is in these words . tem, 304 1835] OF THE UNITED STATES. Fenwick v. Chapman. 467 I give and bequeath to my nephew, Richard James Edelin, the small house and lot now occupied by Robert Frazer, which I give to him, his heirs and assigns for ever, with this proviso, that the negroes which are hereinafter mentioned to be free, to live in the back room of said house.” “ Item, negro woman Letty, her daughter Kitty, a mulatto, with her three children, to wit, Eliza, Robert and Kitty Jane, with their future increase, and an old woman named Lucy, I do hereby declare them free, at and after my death, and they shall have the right to live in and occupy the back room in the house and lot I give and bequeath to my nephew, Richard James *Edelin. To the two old negro women, I give them, and bequeath, ten dollars a year to each of them, as long as they live ; and ten dol- L lars a year, during two years after my death, exclusive of the year in which I die, to mulatto Kitty. Item, my thr^e nephews, John Aloysius, Richard James and Walter Alexander Edelin, for and in consideration of the bequests I have made them, shall pay every year to negro woman Lucy, and to negro woman Letty, ten dollars for every year the said negro women may live, as mentioned in the foregoing item ; and my nephew, John B. Edelin, for and in consideration of the bequests I have left him, shall pay, during the two years above mentioned, to mulatto Kitty, ten dollars for each year.” The law of Maryland permitting the manumission of slaves by will is in these words (Act of 1796, ch. 67, § 13) : “ that from and after the passage of this act, it shall and may be lawful for every person or persons, capable in law to make a valid will and testament, to grant freedom to and effect the manumission of, any slave or slaves, belonging to such person or persons, by his, her or their last will and testament; and such manumission of any slave or slaves may be made to take effect at the death of the testator or testators or at such other periods as may be limited in such last will and testament; provided always, that no manumission hereafter to be made by last will and testament, shall be effectual to give freedom to any slave or slaves, if the same shall be in prejudice of creditors, nor unless the said slave or slaves shall be under the age of forty-five years, and able to work and gain a sufficient maintenance and livelihood, at the time the freedom given shall commence.” The agreement or statement of facts entered into between the counsel of the parties, at the trial term of the cause, and upon which the judgment of the court was given, is as follows : 1. That the petitioners are the same named in the will of Frances Edelin, deceased ; to whom she gave their freedom, after her death, as appears by said will, a copy whereof is hereto annexed. 2. That Edelin, the defendant, was the executor of the last will and testament of said deceased, and as such, sold, in the year 1833, said petitioners, to the other defendant, Fenwick. 3. That the sale of the petitioners was made in Prince *George’s county aforesaid, where the J.* deceased lived at the time of her death, and where the petitioners L were ; and that, from the time of deceased’s death, to the time of their sale, they were permitted by the executor to go at large as free ; and that after the purchase made by Fenwick, he brought them to the district of Colum-ia, where the present suit was instituted ; and that, after the institution of t e said suit, Fenwick transferred his claim to the petitioners to the defendant, Edelin, who repaid him his money, and appears to defend the suit. hat the deceased left real estate to an amount in value more than suffi- 9 Pet.—20 3Q5 469 SUPREME COURT [Jan’y Fenwick v. Chapman. cient to pay her debts, without the sale of the negroes emancipated by the will, as will appear by her will, referred to, and made a part of this agreement ; but not personal estate sufficient. 5. That the original copy of all the proceedings had in the orphans’ court of Prince George’s county, relative to the settlement of deceased’s estate, by her executors or administrators, may be filed as a part of this case. Under the aforegoing circumstances, the statement of facts entered into by the counsel of the parties, and the law of Maryland permitting the testamentary manumission of slaves, when it is not done “in prejudice of creditors,” the question to be decided is—were the defendants manumitted in prejudice of creditors? And we will first consider it, by inquiring what effect the words in the will, “ and after my debts and funeral charges are paid, I devise and bequeath as follows,” have to charge the real estate of the testator with the payment of debts, in the event of there not being a sufficiency of personal estate to pay them, without the manumitted slaves. Without any construction of our own upon these words, the effect of them to charge the real estate is settled by decisions which are uncontested, and cannot be controverted. In the case of Kidney v. Coussmaker (Trin. 1793), 1 Ves. jr. 436, it is said, “after paying debts,” amounts to a charge upon real estate; for which very little is sufficient. In Newman n. Johnson (East. 1682), 1 Vern. 45 : “ My debts and legacies being first deducted, I devise all my real and personal estate to J. S.” These words were said to amount to a devise to sell *4701 ^O1 Payment debts« *A devise of land, after payment of debts, is J a charge on the land; for, until debts paid, testator gives nothing. 3 Ves. 739. In the case of Trott v. Kernon, 2 Vern. 708, the testator willed and devised, that his debts, legacies and funerals should be paid in the first place, and then devised his land to his sister for life, with remainder to her issue, remainder over, and made the sister executrix ; it was decreed, that the lands be charged with the debts. The lord chancellor said, it was but natural to suppose, that all persons would provide for the payment of their just debts ; and directing them to be paid in the first place, imports, that before any devise by his will should take place, his debts, &c., should be paid. See cases, Cas. temp. Talb. 110; 3 P. Wms. 95 ; 1 Ves. sen. 499; 2 Johns. Ch. 614 ; for the same doctrine. And in the case of the Earl of Godolphin v. Pennock, 2 Ves. sen. 270, it was held, that real estate was charged for the payment of debts, under a general clause in a will that debts should be first paid and satisfied. Though cases both before and after it can be found of a contrary character, yet that such a general clause will charge real estate, has been always held. In the case before us, the word “ after” implies, as strongly as any word in the English language can do, that the payment of debts is a condition precedent to the absoluteness of any entire devise in the will. A contrary doctrine seems to have been held in Davis n. Gardiner, 2 P. Wms. 189, and it was so held, under the devise in that case ; but the lord chancellor, in his decision, admits, that the real estate would have been charged, in a case, which is, indeed, the case under the will of Frances Edelin. He says, “ I admit, the portions might be charged on the real estate, had the devise of the lan been to the son in fee, absolutely ; for without such construction, the devise would have been void, and the son would have taken the land by descent. 306 1835] OF THE UNITED STATES. 470 Fenwick v. Chapman. So that the will must, in such a case, have signified nothing as to the land, unless it were to operate so as to charge the land with the legacies, and to intimate that the heir was not to take it, until after the legacies paid.” And there is no difference, in the rule of construction, between legatees and creditors. But leaving out of view the words in the will, “ and after *my debts and funeral charges are paid, I devise and bequeath as follows,” L and the authorities which have been cited to show that they make a charge upon the real estate for the payment of debts, would there not be a charge upon the real estate for the payment of debts, if it be manifest from the will, that it was the intention of the testatrix, that the manumitting clause in her will was to take place, or to have effect at all events ? The general rule is, that the personal estate of a testator shall, in all cases, be primarily applied in the discharge of his personal debts or general legacies, unless he, by express words or manifest intention, exempt it. Bac. Abr., tit. Executor and Administrator, L. 2. The testator may exempt a part of it, by making it a particular legacy ; or the whole of it, either by express words, or plain manifest intention, or by giving it as a specific legacy. Adams v. Meyrick, 1 Eq. Cas. Abr. 271, pl. 13 ; Bamfield v. Wyndham, Free, in Ch. 101; Wain-might v. Bendlows, Ibid. 451 ; Ambl. 581 ; Stapleton v. Colville, Cas. temp. Talb. 202 ; Phipps x. Annesley, 2 Atk. 58 ; Ancaster v. Mayer, 1 Bro. C. C. 454 ; Webb v. Jones, 2 Ibid. 60 ; Burton v. Knowlton, 3 Ves. 107 ; Milnes v. Slater, 8 Ibid. 305. In Jones v. Selby (Hil. 1709), Free, in Ch. 288, it is said, “where the testator’s intention clearly appears, that a legacy should be paid at all events, the real estate is made liable, on a deficiency of personal assets.” That such clear intention of the testator will charge the real estate, is also decided by authority. Was it clearly the intention of the testator that these defendants should be free, at all events, so far as she had power to make them so, under the law of Maryland? We think it was : and the conclusion is sustained by the words of the manumitting clause of the will, by the provision which she makes of a place for their residence, by the annuities which are bequeathed to some of them, the manner in which they are made, and, above all, we say, by the nature of manumission itself. After naming the slaves, her language is, “ I do hereby declare them free, at and after my death ; and they shall have the right to live in, and occupy the back room in the house and lot I give and bequeath to my nephew, Richard James Edelin.” And the devise of that house and lot to Richard James Edelin (the now plaintiff in error) is made with “ this proviso, that the negroes which are hereinafter mentioned to be free, *to live in the back room of said house.” In confirmation, too, of its having been the inten- f tion of the testatrix, that these negroes were to be free, at all events, it is worthy of remark, that the effective words of manumission are in strict con-ormity with, or a repetition in part of these words in the statute of Mary-aod, “ and such manumission of any slave or slaves may be made to take e ect at the death of the testator.” But the testatrix, after declaring these egroes to be free, at and after her death, provides for them a residence ; an the measure of her benevolence being unexhausted, she bequeaths to some of them annuities or pecuniary legacies ; two of them as charges upon er estate> and the rest she directs to be paid by her devisees and nephews, 307 472 SUPREME COURT Fenwick v. Chapman. [Jan’y in consideration of the bequests she had made to them. Can it be supposed by any one, that such provisions would have been made by the testatrix, for these manumitted slaves, if it had not been her intention that they should be free at her death, at all events ? We think no one will answer the inquiry in the negative. But without such assistance from a will, to collect the intention of a testator, the nature of the thing directed to be done, may clearly show an intention that it is to be done at all events, so as to make real estate liable for payment of debts, on a deficiency of personal assets. As, for instance, when the thing to be done cannot be partially performed by the executors, without defeating altogether the intention which directs it, and the thing itself. Manumission, to take effect at the death of a testator, is of that character. What is manumission ? It is the giving of liberty to one who has been in just servitude, with the power of acting, except as restrained by law. And when this liberty is given in absolute terms, by will, under the law of Maryland, it can only be defeated, by the person conferring it, having done it in prejudice of creditors, or by the slave standing in the other predicament of the law, of being over forty-five years of age, and being unable to work and gain a livelihood, at the time the freedom given shall commence. But what meaning shall be given to the words of the statute of Maryland, “ that no manumission hereafter to be made by last will and testament shall be effectual to give freedom to any slave or slaves, if the same shall be in prejudice of creditors ?” It is, that the manumitter must not be insolvent ; that a creditor of the testator shall not be deprived in reality of . , _ his *debt, by the manumission. Any other construction in favor of J the creditor, from any right to personal assets for the payment of debts, of the executor’s obligation so to apply the whole of them, or in favor of the creditor’s remedy at law to have the personal assets applied to the payment of his debt, including manumitted slaves, when the other personal estate is not enough to pay all debts, or against his being carried into a court of equity, to make land liable for his debt, when the personal assets have been exhausted, exclusive of manumitted slaves—any other construction than that which has been given to the words “ in prejudice of creditors —would interfere with the right of a testator to make his real estate chargeable with the payment of debts, when he manumits a slave ; and would, therefore, confine effective manumissions to those cases in which a testator leaves personal property enough, besides the manumitted slaves, for the payment of his debts, or when he dies owing no debts. It would also, so far as his creditor’s remedy at law, or his not being carried into a court of equity are concerned, be equivalent to a denial of a testator’s right to make a specific legacy of all his slaves, and to charge the payment of his debts exclusively upon his land. The first is not in conformity with the statute of Maryland ; and the second, no one will deny to be a testator’s right. The statute is a privilege to all persons, capable in law to make a valid will and testament, to grant freedom to, and effect the manumission of any slave or slaves, belonging to such person or persons, by will and testament; and it may be made to take effect at the death of the testator or testators, if t e same shall not be “in prejudice of creditors.” Now, can the construction o that statute be, that the testator is limited to the manumission of slaves, only in the event of his haying other personal property sufficient to pay 309 less] of the United states. 473 Fenwick v. Chapman. debts ; or to deny to him a right, when he manumits, to do what he could have done before the statute was passed, and what it must be admitted be can still do—to make all of his slaves a specific legacy, and to charge his land with the payment of his debts, even though he may have, at the time of his death, no other personal property than slaves. But in opposition to the protest against any interference with a creditor’s right to have a remedy at law, to enforce the payment of his debt out of the personal assets, and against his being carried into a court of equity to make *the land liable, when, by the manumissson of slaves, the other personal assets *-shall be insufficient to pay his debts ; it is sufficient to say, that he holds this right in all eases at the will of a testator, and in many cases subject to the dubious expression of a testator’s intention. The creditor may be carried into a court of equity, or voluntarily resort to it, to obtain his debt, either from the lands or the personalty, when the testator leaves it doubtful from what funds his debt are to be paid ; or when the executor doubts, from the will, or the indebtment of his testator, how assets are to be applied, or whether the land is not chargeable with the payment of debts, or when the whole of the personal estate has been left as a specific legacy ; or when the specific legatee of a part contends for the payment of debts out of the real estate ; and in many other instances, with this of manumission added to them, when the personal property, besides, is insufficient to pay debts ; on account of its reasonableness, and because the legislative intendment of the statute of Maryland, allowing freedom to be given to slaves by will, might be defrauded in the greater number of cases, if a creditor was not required to go into equity to obtain his debt by a sale of the testator’s land. This construction, too, of the words “in prejudice of creditors,” and of a creditor’s obligation to go into a court of equity, is in exact conformity With that indisputable rule in equity ; that, where one claimant has more than one fund to resort to, and another claimant only one, the first claimant shall resort to that fund on which the second .has no lien. Lanoy n. Duke of Athol, 2 Atk. 446 ; 1 Ves. 312 ; ALogg v. Hodges, 2 Ves. 53 ; Trim-wer v. Dayne, 9 Ibid. 209. With this rule in view, see, by a course of short reasonings, how absolute its application is to sustain the correctness of our construction of the words in the statute, “ in prejudice of creditors,” and of a creditor’s obligation to go into equity, in a case of manumission, after other personal assets are insufficient to pay debts. Manumission is good by the act of Maryland, 1796, ch. 67, § 13, if it be not m prejudice of creditors. If ample funds exist, and they are accessible, by the laws of Maryland, to the creditors, they cannot be prejudiced. Lands devised for the payment of debts, or which have ^become chargeable by implication, constitute a fund for the payment of debts ; and an ample and plain remedy is admitted to exist, in the laws of Maryland, so to apply them. How then are creditors prejudiced, if the and liable, in a case of manumission, is sufficient to pay all of a testator’s debts? As to an executor’s obligation to apply personal assets to the payment °, debts, not specifically bequeathed or manumitted, an opposite construc-ion to that which has been given to the words “ in prejudice of creditors,” Would be to make him master of the rule directing the application of assets ; and in all cases of manumission, would place it in the executor’s power to 309 4^ SUPREME COURT Fenwick v. Chapman. [Jan’y postpone or defeat the testator’s intention in that regard. The will is the executor’s law, and he is no more than the testator’s representative in all things lawful in the will. A specific legacy of all the personal property is a law to him. The manumission of all the slaves of his testator, if he leaves no other personal property to pay debts, and if it be made in a way to charge real estate with the payment of all debts, is equally his law. In a case of manumission and insufficiency of other personal assets to pay debts, it is the duty of an executor to file his bill against the creditors and all interested in the estate ; placing the manumitted slaves in the guardianship of the chancellor, and praying that the lands may be made liable to the payment of debts ; that equity may be done to all concerned, according to the law of equity. If an executor withholds freedom from manumitted slaves, the slaves may prefer their petition at law, against the executor, or against any person holding them under him, and they may recover their freedom by a judgment at law, though the question raised by the plea is, that the manumission has been made in prejudice of creditors. And the slaves may do this, upon the principle that a statute never gives a right without providing a remedy ; or the absence of such provision, contemplating that there is a legal remedy to secure it. If an executor permits manumitted slaves to go at large and free, from the death of the testator, it is an assent to thè manumission, which he cannot recall, any more than he can, after assenting to a legacy, withdraw that assent. Nor can he deprive the manumitted persons of their liberty by the order of an orphans’ court in Maryland, for the sale of all the personal property of his testator ; upon a suggestion that, ^besides J the manumitted slaves, there is not enough personal property to pay debts ; that court having no jurisdiction, by the laws of Maryland, to try the question of freedom. And if, by such order, they have been sold by the executor, they may sue for their freedom in a suit at law, against the purchaser, or against any other pérson holding them in slavery. The decision in the case of Negro George et al. y. Corse's Administrator, 2 Har. & Gill 1, was urged in argument, in opposition to the opinion just expressed. In that case, the petitioners claimed their freedom in virtue of the will and testament of their master, James Corse. The manumitting clause of the will gives freedom to some of the slaves, at the testators death, and to others when they shall have arrived at particular ages ; and the testator further says, if his personal estate, exclusive of the negroes, should not be sufficient to discharge all his just debts, “then my will is, that my executor or administrator, as the case may be, may sell so much of my real estate as will pay my debts, so as to have my negroes free, as before stated.” The testator makes specific devises of real estate in fee to his son, and devises and bequeaths to his brother, Unit Corse, the residue of his estate, both real and personal, with the unexpired time of the negro girls and boys, as designated in the first clause of the will ; and he appointe Unit Corse executor. The case was submitted to the jury, in the Kent county court, upon a statement of facts ; and with instructions from t e judge, that if the jury believed the facts, they must find a verdict for t e defendant. The verdict and judgment being against the petitioners, t ey appealed. In the statement of facts, it is admitted, that the personal està. e of the testator, either including or excluding his negroes, was not, at ® time of the execution of his will, nor at any time after, sufficient to pay 1 310 1835] OF THE UNITED STATES. Fenwick v. Chapman. 476 debts; but that his real estate, exclusive of the negroes, was sufficient to pay all his just debts and funeral charges. Upon the appeal, three judges decided to affirm the judgment, upon the ground, “ that the question of the existence of a sufficiency of real assets to pay the debts of the testator, never can be tried on an issue between the executor or administrator only, without “ prejudice ” to creditors. That it was an issue to which the creditors were no party, and to protect whose interest *nobody appears.” And the court further says, the admissions made by the appellee, he was Z unauthorized to make; and the court was incompetent to pass judgment upon the facts they contained, not being matters in issue in the cause. The court also say, “ so far as relates to the personalty, the executor or administrator is competent to act for all concerned; but in trying the facts whether there be assets by descent in the hands of the heir, and what is the amount thereof, he has no interest, either personally or in right of representation.” With all respect for the judges deciding that cause, these opinions cannot command our assent. We think with Judge Cranch, and use his language in regard to that decision, when he gave his opinion in the circuit court in this case. The judge says, “when lands are devised to the executor, to be sold for the payment of debts, or when the lands are charged with the payment of debts, and a power is given to the executor to sell them ; the lands are as much a fund in his hands for that purpose, as the goods and chattels ; and he represents the creditors in regard to the lands, so far as their interests are concerned, as much as he does in regard to the personal estate ; and the creditors are as much a party in the issue in respect of the lands, as they are in respect of the goods and chattels. When he is charged with the sale of his testator’s lands, for payment of debts ; he is as much bound to inquire in regard to the lands, as he is in regard to the personal estate. For it is his duty to execute the whole of his testator’s will; and, in such a case, the creditors have as good a right to look to the land through him, for the payment of those debts, as they have to look to the goods and chattels, through him.” To these remarks, we add, it is well settled, that executors have power to sell the real estate, where such power is given to them, or necessarily to be implied from the produce being to pass through their hands in the execution of their office. Bentham v. Wiltshire, 4 Madd. 44 ; Jac. & Walk. 189. And in Vin. Abr. 920, Hawker v. Buckland, 2 Vern. 106, it is said, “if a man devise lands to be sold by one for payment of his debts and legacies, and make the same person his executor, the money made by such person, upon the sale of the land, shall be assets in his hands.” Now if, in case of such a devise, the executor can sell, and does sell, bond fide ; and by doing so, can *deprive the creditors of all claim upon the land; substituting the price of it as assets—doing this without in any way consulting the L creditors, and in virtue of the devise for that purpose ; why may not the executor admit, in a suit at law between himself and another, that the land devised is sufficient to pay debts, though such'an admission may release a part of the personalty, by the judgment of a court, from any future liability at law for the debts of his testator ? Why should it be, that the value of ands so devised for the payment of debts, can only be ascertained, when creditors are a party to the proceedings ? when they have no legal concern in fixing the price for which the executor may sell the land; and when, 311 4^8 SUPREME COURT [Jan’y Fenwick v. Chapman. moreover, if It be necessary to obtain, as it is in some cases, an order of a court of equity to sell the land, the creditors need not be made parties to the application. Their claim is upon the assets made by the sale of the land. It is true, creditors may, for cause, enjoin the executor from selling ; or, upon his application to sell, in a case where the intervention of a court of equity is asked to permit or direct a sale, creditors may be allowed to make themselves parties; but the difference between these last positions ; and the executor’s right to sell, and having sold, is all that there is between the action of the executor being restrained by a court of equity, and where his power to sell has not been restrained, and is executed. Suppose, in a case of a devise to sell land for the payment of debts, as in the case of George n. Corse, that the administrator had admitted assets from the sale of the land, without stating the amount, but sufficient to pay debts, and without stating the amount of the debts due by the testator; could the court, in the face of the admission, have conjectured it might be in prejudice of creditors, and upon such conjecture or apprehension, have given judgment that it was in prejudice of creditors. Or suppose, the administrator had, in his admission, stated both the amount of the assets and of debts, the former being larger than the latter, would it not have given judgment, that the manumission had not been made in prejudice of creditors, and have done so upon the executor’s admission ? The court could not, in such an issue, have given to the creditors any more protection than they had by the administrator’s admission ; it could not have possessed itself of *. ^q-| the assets, or in any way *have directed the distribution of them. It J was powerless to call upon the executor for a schedule of debts, or upon the creditors to make an exhibition of their claims. But it may be said, the difference in the case supposed, and that which existed, is that in the first, the assets were in hand ; and in the other, were to be made by a sale of the land. The difference makes nothing against the argument, for the value of the land can be as well ascertained by proof, as it can be by the executor’s sale ; and when he admits the value to be sufficient to pay debts, he does, in truth, do no more than is done when he admits the existence of a sufficiency of personal assets, but unsold, to pay debts. As between himself and another, his admission may surely bind him in that other’s favor ; as well in regard to assets to be made from land, as in regard to personal assets undisposed of. In the latter case, there is as much a question of the sufficiency of assets, as there is in the case when assets are to be made by the sale of land ; and so far as creditors are concerned, in a case of manumission, the reason for not trying the issue between a petitioner and an executor, is as strong, in an inquiry of a sufficiency of personal assets, as in one of real assets. And the court, in the case under remark, only excludes an inquiry into the value of the latter ; and if it did not intend to do so, then a manumitted slave can never show that the manumission was not made in prejudice of creditors. The court thought it was an issue to the prejudice of creditors, as they were no party to the proceedings, and to protect whose interest no one appeared ; and “thus the judgment of the court, having once given effect to the manumission, on the ground, that effects in the hands of the heir should be applied to the payment of the debts, the executor or administrator is absolved from all responsibility, except as to the residue of the personalty, 312 1835] OF THE UNITED STATES. 470 Fenwick v. Chapman. and the creditors would be left to seek, through a court of equity, real assets which perhaps never had existence.” But the mistake is in stating the land devised to an executor to be sold for the payment of debts to be assets in the hands of the heir ; and that the judgment between the then petitioners and administrator, would have been conclusive against creditors as well in equity as at law. The assets were not legally in the hands of the heir; nor would the judgment *have concluded the right of the creditors from showing, in a proceeding in equity, to which the L manumitted slaves, the executors, and all persons interested had been made parties, that the admission of the executor had been made without any foundation in fact, or in fraud or mistake ; and upon showing either, in an entire review of the administration, a court of equity would set aside the judgment at law, and decree that the manumission had been made in prejudice of creditors, and subject the slaves to the payment of debts, either by sale for life or for a term of years ; according as the one or the other might be requisite to pay the creditors. Such a course would be in perfect harmony with the statute allowing manumissions to be made by will. They may be made, to take effect at the death of the testator, but shall not be effectual, if done to the prejudice of creditors. Upon whom does it lie, to show it to have been done in prejudice of creditors ? Surely, upon the creditors ; or the words of the statute, “ to take effect at the death of the testator,” can never be fulfilled in any case of manumission, if it can only take effect after the manumitted slaves have shown it had not been done in prejudice of creditors ; or if, as a condition precedent to effective manumission, the slaves must carry executors, creditors, and all interested in the real estate, into a court of equity, to prove the manumission not to have been made in prejudice of creditors. But the case before us is distinguishable from that in Harris & Gill, in other particulars which make that case inapplicable. The first difference is, that the record shows in this case, there were no creditors of the testatrix, Frances Edelin, at the time the suit was brought in the circuit court. The only sum which could then be charged upon the estate was the right of retaining, which the executor had, on account of his having overpaid beyond assets. He then is the only creditor, by his own admission ; and when he admitted the sufficiency of real estate to pay himself, there was an end of all inquiry as to what was the value of the land. There was nothing due to any one else ; consequently, no one could be prejudiced : and the words of the statute, “in prejudice of creditors,” cannot be construed to apply to any other than the testator’s creditors at the time of his death, and such as might become so for funeral charges ; not to such as the executor might make his creditors, *virtute officii ; and much less to defeat a manu- r#4R1 mission, in favor of an executor, because he has carelessly, though •-paid debts beyond assets. Upon the whole, then, our opinions are, that, by the statute of Mary-mnd, 1796, ch. 67, § 13, manumissions of slaves by will and testament, may be made to take effect at the death of the testator ; that the testator may devise or charge his real estate with the payment of debts, to make the manumission effective, and not in prejudice of creditors ; that the right to reedom may be tried in a suit at law, against the executor, at the instance o the manumitted slaves ; and that the executor may, in such suit, admit 313 431 SUPREME COURT [Jan’y Fenwick v. Chapman. the existence of a sufficiency of real assets, or real estate, to pay the debts of his testator ; that a judgment at law in favor of slaves manumitted by will, in a suit between them and an executor, upon his admission of a sufficiency of real estate to pay creditors, may be set aside in equity, if such admission was made without foundation in fact, dr in fraud or mistake, upon the creditors’ showing either, in a proceeding in equity to which the manumitted slaves, the executors, and all persons interested have been made parties—in which there may be a review of the entire administration of the estate, of the conduct of the executor, and that of creditors in regard to the estate, and in regard to the vigilance of the one in paying, and of the others in pursuit of their debts. That the words in this will, “ and after my debts and funeral charges are paid, I devise and bequeath as follows,” amount to a charge upon the real estate, for the payment of debts. That when a testator manumits his slaves by will and testament, and it clearly appears to have been his intention, that the manumission shall take place at all events, the manifest intention, without express words, to charge the real estate, will charge the real estate for the payment of debts, if there be not personal assets enough, without the manumitted slaves, to pay the debts of the testator. That in such a case, the creditors of the testator must look to the real estate for the payment of debts which may remain unpaid, after the personal assets, exclusive of the manumitted slaves, have * , been exhausted ; and that they must pursue their *claims in equity, J or according to the statutes of Maryland, subjecting real estate to the payment of debts, to make their debts out of the land. That when an executor permits manumitted slaves to go at large and free, under a manumission to take effect at the death of the testator, he cannot recall such assent by his own act: nor can it be revoked under the order of an orphans court in Maryland, for the sale of all the personal estate of a testator, that court not having jurisdiction of the question of manumission. That in this case, it being admitted that the testatrix left real estate to an amount in value more than sufficient to pay her debts, without the sale of the negroes emancipated by the will, the defendants in error are entitled to freedom. The judgment of the circuit court is, therefore, affirmed. This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed, with costs. 314 1835] OF THE UNITED STATES. ♦488 *George Harbison, Thomas H. White and others, Appellants, v. Henry Nixon, surviving Executor of Matthias Aspden, deceased. Bill in equity. A bill was filed in the circuit court of the United States for the district of Pennyslvania, stating that one Matthias Aspden, a citizen of Pennsylvania, made his will, dated in Philadelphia, on the 6th of December 1791, and bequeathed all his estate “ to his heir-at-law,” and died in April 1829; that letters testamentary were taken out in Pennsylvania, by the executor ; that large sums of money were received by him; and the bill prayed for a decree in favor of the complainant, who asserted himself to be the true and only heir-at-law of the testator, and that he was solely entitled to the bequest. The answer of the executor stated, that from information and belief, the testator was born in Philadelphia, which was the residence of his parents, about 1756 ; that he continued to reside there, doing business as a merchant, before he was twenty-one, and before the breaking out of the war with Great Britain in 1776; being still a minor, he went to England, under a belief that Great Britain would soon prevail in the contest; that he subsequently come back to the United States, and invested large sums in government stocks; but, whether he afterwards went back to England as his home, or only for the purpose of superintending his property ; and whether the testator did, in fact, change his domicil, the executor (save and except as appeared by the facts) did not know; he believed that the testator, when in England, considered himself as an alien, and he died in King street, Holborn, London; that letters testamentary wrere taken out in England, and the will was proved there, and proceedings were instituted in England, by a person claiming to be the heir-at-law. Various proceedings took place in the circuit court of Pennsylvania ; a reference was made to a master, to examine and state the heirs and next of kin of the testator, and a report made by him, which was afterwards confirmed ; and thereupon, a final decree was made in favor of John Apsden, of Lancashire, England, one of the claimants before the master, as entitled to the personal estate of the testator as “ heir-at-law.” The cause having come by appeal before this court for argument, a question occurred, whether the frame of the bill, taken by itself, or taken in connection with the answer, contained sufficient matter upon which the court could proceed to dispose of the merits of the cause, and make a final decision. The bill contains no averment of the actual domicil of the testator, at the time of the making of his will, or at the time of his death, or at any intermediate period: nor does the answer contain any averments of domicil, which supply these defects in the bill, even if it could so do; but in point of law, it could not. Every bill must contain in itself sufficient matter of fact, per se, to maintain the case of the plaintiff ; the proofs must be according to the allegations of the parties, and if th? proofs go to matters not within the allegations, the court cannot judicially act upon them as a ground for decision ; for the pleadings do not put them in contestation. This is the case of a will, and so far as the matter of the bill is concerned, is exclu- r*. „. sively confined to personalty bequeathed by that will; and the court are called upon to give a construction to the terms of the will, and in an especial manner, to ascertain who is meant by the words “ heirs-at-law,” in the leading bequest in the will. The language of wills is not of universal interpretation, having the same import in all countries and under all circumstances ; they are supposed to speak the sense of the testator, according to the received laws and usages of the country where he is domiciled, by a sort of tacit reference to them ; unless there is something in the language which repels or controls such a conclusion. In regard to personalty, in an especial manner, the law of the place of the testator’s domicil governs the distribu-tion thereof, unless it is manifest, that the testator had the laws of some other country in view, o one can doubt, if a testator, b.orn and domiciled in England during his life, by his will gives his personal estate to his heir-at-law, that the descriptio personae would have reference to and g°verned by the import of the terms, in the sense of the laws of England. The import of them might be very different, if the testator were born and domiciled in France, in Louisiana, or Massachusetts. A will of personalty speaks according to the testator’s domicil, when there are no other circumstances to contract the application; to raise the question what the testator meant, it must first e ascertained where was his domicil, and whether he had reference to the laws of that place, or to the laws of a foreign country. 315 484 SUPREME COURT [jan’y Harrison v. Nixon. The bill in this case should allege the material facts upon which the plaintiff’s title depends, and the final judgment of the court must be given, so as to put them in contestation in a proper and regular manner; and the court cannot dispose of this cause, without ascertaining where the testator’s domicil was, at the time of his making his will, and at the time of his death ; and there ought to be suitable averments in the bill to put those matters in issue. The case ought to be remanded to the circuit court for the purpose of having suitable amendments made, in reference to the domicil of the testator; and averments made of his domicil at the time of making the will, and at the time of his death, and at the intermediate period, if any change took place. Upon motions made to the court, and from proceedings in the circuit court, laid before the court, it appeared, that there were certain claimants of the bequest, asserting themselves to be “ heirs-at-law,” whose claims where not adjudicated upon in that court, on account of their having been presented at too late a period. As the cause is to go back again for further proceedings and must be opened there for new allegations and proofs, the claimants will have a full opportunity of presenting and proving their claims; and they ought to be let into the cause for that purpose. No persons but those appearing to be parties on the record, can be permitted to be heard on an appeal or writ of error. Appeal from the Circuit Court for the Eastern District of Pennsylvania. Matthias Aspden, on the 6th day of December 1791, made his will, with the codicils annexed thereto, as follows : *4851 These are to certify, that I do hereby annul and revoke all my J former wills, giving and bequeathing my estate, real and personal, to my heir-at-law, first paying all my just debts and funeral expenses, and the following legacies : first, to each of the children of my half-brother, Benjamin Hartley, deceased, that may be alive at my death, the sum of 100 pounds to each, Pennsylvania currency ; and to my half-sister, Bersheba Zane, wife of Elnathan Zane, the sum of 400 pounds, Pensylvania currency, both the above, living or did live, at or near Haddonfield; and to my half-brother, Roger Hartley, living at present in Lancaster county, the sum of 300 pounds of the like currency. Witness my hand, this 6th day of December 1791, Philadelphie. Matthias Aspden. “Lest any question.should arise about the legitimacy of my birth. It is my will, that my estate, real and personal, should go to the party who would be my lawful heir, in case there might arise any doubts on that head. It is firmly believed by, from the best information, that my birth was after mai-riage. Philedelphie, December 6th, 1791. “I do further give 100 pounds, Pensylvania currency, to each of the children of my deceased half-sister, Ann Henchman, that may be living at my death. December 6th, 1791. “ Note, my property on England is as follows : 12,500 pounds inthe foui per cent, stock; 3000 pounds in the five per cent, stock ; 1800 pounds in the three per cent, stock.” Indorsement.—“ The last of will of Matthias Aspden. I do here y appoint my friends, Mr. George Roberts and Mr. Abraham Lidden, wit the president of the old bank, at the time being, to be my executors to t, is my last will. Matthias Aspden. At April sessions 1821, of the circuit court of the Eastern District of Pennsylvania, the following bill was filed : “Samuel Packer, a citizen of the state of New Jersey v. Henry ^x01j Esquire, a citizen of the state of Pennsylvania, executor of the last wi an 316 1835] OF THE UNITED STATES. 485 Harrison v. Nixon. testament of Matthias Aspden, Esquire, late a citizen of the same state. In equity. “ To the honorable the judges of the circuit court of the *United p,.. States of the third circuit, in and for the eastern district of Penn- L sylvania. Humbly complaining, showeth unto your honors, your orator, Samuel Packer, a citizen of the state of New Jersey, that on the 6th day of December, in the year of our Lord 1791, one Matthias Aspden, Esquire, a citizen of the state of Pennsylvania, made and executed his last will and testament, bearing date the same day and year, wherein and whereby he gave and bequeathed all his estate, real and personal, to his heir-at-law ; and of the said will, appointed his friends, George Roberts, Abraham Lid-den, and the president of the old bank, at the time being, executors, as by the said will, a true copy whereof is to this bill annexed, and which your orator prays may be taken as part thereof, will more fully appear ; after which, to wit, on the----day of August, in the year of our Lord 1824, the said Matthias Aspden departed this life, not having altered, cancelled or revoked his said will; and the said George Roberts and Abraham Lidden being then deceased, and Henry Nixon, Esquire, a citizen of the state of Pennsylvania, being then president of the Bank of North America, which bank the testator meant and intended by the description of the old bank, the said Henry Nixon caused the said will to be duly proved according to the laws of Pennsylvania, and having received letters testamentary thereon, took upon himself the burden of the execution thereof, and hath possessed himself of all the goods, chattels and other personal estate of the said testator, to a very large amount. And your orator expressly charges, that he is the true and only heir-at-law of the said Matthias Aspden, and that no other person than himself is entitled to claim or receive the benefit of the said devise and bequest. And he hath repeatedly applied to the said Henry Nixon, to have an account of all and singular the personal estate of the said Matthias Aspden, and where and how the same is situated, and what is the true and exact amount thereof, and to have the amount thereof paid to him, deducting therefrom the just and reasonable charges of the said executor. But now, so it is, may it please your honors, that the said Henry Nixon, combining and confederating with others, to your orator unknown, whose names, when discovered, he prays leave to insert with apt words to charge them as parties, denies that your orator is *the heir-at-law of said p^gy Matthias Aspden, or that he is in any way entitled to the benefit of any of the testamentary dispositions of the said Matthias Aspden, and refuses to render him any account of the assets, and to pay him any part thereof. In tender consideration whereof, and forasmuch as your orator cannot have plain, adequate and complete remedy at law, to the end therefore, that the said Henry Nixon, and his confederates, when discovered, on their oaths or affirmations, full, direct and true answers may make to all and singular the matters and things herein-before set forth, as if they had been particularly interrogated thereon ; and that the said Henry Nixon may render and set forth a just and true account of all and singular the personal estate of the said Matthias Aspden, and where and how the same is situate, and whether there are any and what debts due, or claimed to be due therefrom, and may be decreed to pay to your orator the balance of the said moneys in his hands belonging to the said estate, to which your orator is justly entitled, and 317 487 SUPREME COURT Harrison v. Nixon. [Jan’y your orator may have such further relief in the premises, as is consistent with equity and good conscience, and to this honorable court shall seem meet.” To this, bill the executor filed an answer as follows : “ The answer of Henry Nixon, the • defendant, to the bill of complaint of Samuel Packer, complainant. “ This defendant says, that he believes and admits, that Matthias Asp-den, the testator in the said bill named, at Philadelphia, duly made and executed his last will and testament in writing, and three codicils thereto ; all bearing date the 6th day of December 1791 ; and that such will and codicils are in the words and figures, or to the purport and effect in the paper annexed to the said bill set forth; but for greater certainty as to the date and contents of said will and codicils, this defendant craves leave to refer thereto. And this defendant says, that the said testator deposited his said will and codicils, for safe custody, in the cashier’s vault of the Bank of North America, at Philadelphia, known as the old bank, where the same were found after his decease. And the defendant believes it to be true, * , that the said testator departed *this life, on or about the 9th day of J August 1824, in the city of London, without having revoked or altered his said will and codicils. And the defendant further answering, says, that George Roberts and Abraham Lidden, in the said will respectively named, both died in the lifetime of the said testator ; that the defendant, at the time of the death of the said testator, was the president of the Bank of North America, at Philadelphia, known as the old bank. And the defendant admits it to be true, that soon after the death of the said testator, to wit, on the 19th day of November 1824, this defendant duly proved the said will and codicils, in the office of the register for the probate of wills and granting letters of administration for the city and county of Philadelphia, and received letters testamentary thereon. And that the defendant also duly proved the said will and codicils in the Prerogative Court of Canterbury, in England, and obtained probate thereto from that court. And this defendant admits it to be true, that as executor as aforesaid, he has possessed himself of all the personal estate and effects of the said testator in the United States, or of so much thereof, as has come to his knowledge; a true account of which is in the schedule hereto annexed. And this defendant has paid the charges of proving the said will, at Philadelphia, and other charges incident thereto, and six of the legacies, the others having not yet been claimed, bequeathed by the said will, a true account of which payments is in the schedule hereto annexed, and that as executor, other charges must be incurred in managing and settling the estate; the amount of which cannot now be ascertained ; and that this defendant, as executor, will be entitled to a commission for his services. And this defendant, further answering, says, that he believes it to be true, that the said testator was, at the time of his death (among other descriptions of property), possessed of property in the English funds, that is to say, four thousand pounds bank-stock; ten thousand pounds three per cent, consolidated bank annuities; twelve thousand five hundred pounds reduced three and a half per cent, bank annuities ; and three thousand five hundred pounds new four per cent, bank annuities ; and that the testator also was 318 1835] OF THE UNITED STATES. . Harrison v. Nixon. 488 possessed of East India stock, and also South Sea stock to a considerable amount, that is to say, three thousand pounds East India stock, and five thousand pounds South Sea stock. And this defendant believes that the said *testator died possessed of other personal property to a considerable amount; and particularly of the sum of seven hundred and L 89 ninety pounds, three shillings and five pence, in the hands of his bankers, Messrs. Hoare, of London ; but that no part of the property of the said testator, except that in the United States of America, as before stated, has come to the hands or possession of this defendant. That the whole of the property of the said testator, in England, is claimed by John Aspden, of London, as entitled thereto, under the devise of the said testator, as his heir-at-law ; and that the said John Aspden has filed a bill in the court of chancery, in England, against this defendant, as executor of the said testator ; and has, by the injunction of the said court, restrained and prevented this defendant and his agents from obtaining possession of any part of the property in England, of which the said testator died possessed, further than that his attorneys, S. Williams and J. Sterling, received the sum of three hundred pounds, being one-half year’s dividend on three thousand pounds, East India stock, belonging to the testator. That the expenses of proving the will of the said testator, in England, amounted to seven hundred and fifteen pounds, seventeen shillings and ten pence, to pay which, in part, the said sum of three hundred pounds was applied by Messrs. Williams and Sterling, and the residue, four hundred and fifteen pounds, seventeen shillings and ten pence, was paid out of the sum in the hands of Messrs. Hoare, the testator’s bankers. The said suit in chancery, by the said John Aspden, is yet pending and undetermined. This defendant has annexed to this, his answer, a copy of the bill filed by said John Aspden. And this defendant, further answering says, he does not know, and is unable to answer, from his belief or otherwise, whether the said testator left the complainant his heir-at-law, or whom he left his heir-at-law. But this defendant, further answering, says, that the said John Aspden, of London, claims to be heir-at-law ; and as such, entitled to the residue of the said testator’s property ; and that there are many persons residing in the United States of America, who claim to be next of kin to the said testator, and as such, to be entitled to distributive shares of the estate. That this defendant is not able, from is own knowledge, to name all the persons who so claim to be next of kin, ut that he has annexed to this his answer, a schedule, which he prays may e taken as a part of his answer, Containing the names of some of , t e persons so claiming to be next of kin, and the manner in which ey, or some of them, have alleged to this defendant, they are connected wit the said testator. This defendant, further answering, says, that three suits have been instituted against him, as executor of the said testator, in e istrict court of the city and county of Philadelphia, by persons claiming o e next of kin to the said testator, to wit, one to December term 1826, J tacy Kirkbridge, and Sarah his wife, late Sarah Hammett; another to b ? ^eim’ by James Packer ; and the third to September term 1827, ackcr J which suits are still pending and undetermined. , n k 8 Je^enJan^ further answering, says, that he can neither admit the the sa^ testator was a citizen of Pennsylvania, as alleged in sai ul. That from information, he believes, that the said Matthias 319 490 SUPREME COURT [Jan’y Harrison v. Nixon. Aspden, the testator, was born in or about the year 1756, at Philadelphia, then being the place of residence of his parents ; that he continued to reside there, and afterwards was engaged in business at Philadelphia, as a merchant, with some success, before he was twenty-one years of age. Upon the breaking out of the war between Great Britain and America, in the year 1776, or some time in that year, being still a minor, he went to England, with what view, this defendant, from his own knowledge, is not able to say ; but he believes, that he went with an impression that the power of Great Britain must soon prevail in putting down the resistance made in America. That the said testator subsequently came several times to the United States of America, and invested large sums there in the public or government stock, or in other securities ; that he made his will and the codicils thereto, at Philadelphia, the place of his birth, and deposited them in the bank there ; but whether, after so returning to the United States of America, the testator went back to England as his home, or only for the purpose of superintending his property ; and whether the testator did, in fact, change his domicil, this defendant (save and except as appears by the facts) doth not know, and is unable to answer. But this defendant believes, that the said testator, when in England, considered himself as an alien, and as such, claimed to have returned the tax taken from his dividends, while *4011 he was a^sen^ from England, according to the provisions of the *law J exempting aliens from the tax, if not resident in England. That he died in King street, Holborn, London. And this defendant says, that he submits to the judgment of the court, whether, upon the true construction of the said will of the said testator, the next kin of the said testator are entitled, under the same, to take the residue of the personal estate and effects of the said testator, or whether the complainant, if he be the heir-at-law, and if not, whether any other person, as heir-at-law of the said testator, is entitled to take the same, under the said will, as such heir-at-law. And this defendant submits to act as this honorable court shall direct, being indemnified and paid his costs, charges and expenses therein. And this defendant denies all combination and confederacy with which he is charged in and by the said bill, without this, that, &c. Henry Nixon.” Petitions were filed in the circuit court by persons who claimed to have distribution among them of the estate of the testator, as the party contemplated by the will; each petition setting forth the relationship between the persons presenting the same, and the testator, and praying to be admitted as parties to the suit, for the purpose of claiming the fund admitted by the executor to be in his hands ; and that the court would direct inquiries to be made as to their respective claims. George Harrison and the othei appellants were among those who filed petitions. Upon the reading an filing of the petitions of George Harrison, the court made an order, accor ing to the prayer of the same. Job Packer and John Zane were, by or er of the court, on their application, made defendants; and Isaac Zane was entered as one of the complainants in the case. The record containe no order or action of the court on the other petitions, except an entry i reference to each petition, “read and filed,” or “filed.” . , The circuit court ordered that it be referred to a master, to examine an 320 1835] OF THE UNITED STATES. Harrison v. Nixon. 491 state the next of kin of the testator, Matthias Aspden ; and commissions were ordered to take the depositions of distant witnesses. After the coming in of the master’s report, in which was *contained a list ris of the heirs and kindred of the whole and half-blood of Matthias *-Aspden the testator ; and in which he reported that John Aspden was “ heir at common law,” the circuit court made the following decree : “And now, this 26th day of December, a. d. 1833, this cause coming on to be heard, on the bill, answer, petitions, exhibits, proofs and master’s report, and the several parties having been fully heard by their counsel, and the court having taken time to consider of the same till this day, do order, adjudge and decree, that the defendant, Henry Nixon, surviving executor of Matthias Aspden, deceased, do account for, pay over, transfer and deliver to John Aspden, of Lancashire, in England, one of the said parties, the heir-at-law of the said Matthias Aspden, the entire balance of the personal estate of the said Matthias Aspden, which has come to his hands to be administered, after paying the debts and legacies of the said Matthias Aspden, and the costs of this suit (which are hereby ordered to be paid out of the said fund). And the court do further order, adjudge and decree, that the bill and petitions, so far as they relate to the other complainants and petitions, who are claimants before the court, and all other claimants before the court, however appearing, be dismissed, without costs. As to all parties who are claimants before the court by bill, petition or otherwise, their complaint, petition and proceedings are dismissed, without costs.” From this decree, George Harrison, and Thomas H. White, Ann Emily Bronson, Elizabeth White Bronson, Hetta Atwater Bronson, and William White Bronson, minors, by their guardian, th^said Thomas H. White, Mary Harrison, a minor, by her guardian, Elizabeth Harrison, Esther McPherson, and Elizabeth McPherson, children of Elizabeth McPherson, deceased, John Zane and Isaac Zane, prosecuted an appeal to this court. Before the argument of the case, James 8. Smith stated to the court, that he, with Mr. Coxe, appeared before the court either as amici curiae, or as the court would permit them to appear, in behalf of the heirs of John Aspden, late of Old street, *London, who claimed to be the heirs-at-law of Matthias Aspden, the testator ; and who had no notice of the proceedings in the circuit court of Pennsylvania. It is the wish of the counsel for these claimants, to be permitted to show irregularities in the proceedings, and to have the case remanded to the circuit court, in order that they may be allowed to come in and substantiate their claims to the whole estate, as the heirs-at-law. John Aspden, whose heirs they represent, prosecuted a claim to the estate of the testator, by a bill in the court of chancery in England, which bill is referred to, and annexed to the answer of the executor, filed in the circuit court, and forms part of the record now before this court. Sergeant, for the appellees, objected.—The heirs of John Aspden made an application to the circuit court for a bill of review, for the purpose of obtaining admission into the case. The court refused to give them the per mission asked, and they then obtained a citation from the orphans’ court of t e county of Philadelphia, directed to Henry Nixon, as executor of Matthias . spden, returnable on the 16th of January 1835, four days after the meet-mg of this court ; thus seeking to maintain their claims in that court. They 9 Pet.—21 321 493 SUPREME COURT [Jan’y Harrison v. Nixon. have since filed an original bill in the circuit court of Pennsylvania, against the executor. Coxe, in support of the application.—The case now before the court, is that of a bill filed by Samuel Packer, asserting himself to be the heir-at-law of the testator, ex parte maternd, against the executor. These were the original parties to the proceedings ; other persons came in by petition, which petitions were filed, but no amendments were made to the bill; and on the filing of some of the petitions no order was made by the circuit court, directing the petitioners to be admitted as parties. The appeal from the circuit court is not made by Samuel Packer, who was the only party who could appeal. The counsel who present this application, desire that the court will look at the record ; and they trust, that the court, seeing its imperfections, will remand the case to the circuit court. The proper parties are not before the court. *4011 the sessions of this court, the Chesapeake and Ohio *Canal Company were permitted to appear in the case of Mumma n. Potomac Company, and take upon themselves the whole argument of the case. (8 Pet. 281.) Story, Justice, stated, that it appeared by the charter of the Chesapeake and Ohio Canal Company, that the Potomac Company had been merged in the former company, and had vested in them all their property, and were subjected to the responsibilities of the Potomac Company. Marshall, Chief Justice.—The only parties the court can know, are those in the record. .They cannot permit counsel who represent parties who may think themselves interested, not in the record, to come in and interfere. Let the argument proceed, and if the court see that the proper parties are not before the court, they will act as may be required. Ingersoll, representing the executor, handed to the court the proceedings of the circuit court of the district of Pennsylvania, on a bill of review filed by the heirs of John Aspden, of Old street, London ; against the executor, and the citation issued to the executor at their instance, in the orphans’ court of the county of Philadelphia. At a subsequent day of the term, when the cause came on for argument upon the merits, a question was presented by Webster, who, with Tilghman and Newbold, was the counsel for the appellants ; whether the bill, taken by itself, or in connection with the answer, contained sufficient matter upon which the court could proceed, and finally dispose of the cause. It was submitted, that the bill contained no averment of the actual domicil of t e testator, at the time he made his will, or at any intermediate period, before, or at his death. The court directed this question to be argued, before t e argument should proceed on the merits, (a) (a) The following extracts from the opinion of the circuit court, delivered on the 26th December 1833, will exhibit the views of the learned judge on the effec o domicil of Matthias Aspden, the testator, on the construction of his will. Baldwin, Justice.—The same principle is the rule in Pennsylvania, in all cases which the common law had been applied by adoption; and it remains t e a descent of both real and personal estate, if the provisions of an act of assem y 322 1835] OF THE UNITED STATES. *495 Harrison v. Nixon. * W. Hawle, Jun., for John Aspden.—The motion to remand this cause is founded on a suggestion that its decision will turn upon the question of the testator’s domicil; and that this fact, not being averred in the pleadings, the not in their words embrace the very case in controversy. This must be taken to be a point conclusively settled as the law of the state, by the authorative decisions of the high court of errors and appeals, in Johnson v. Haines, 4 Dall. 64, and of the supreme court, in Cresoe v. Laidley, 2 Binn. 279, 284, and no longer open to discussion; that there is, in this state, such a person as an heir at common law, distinct from the statutory heir, to whom the real estate of a person, dying seised and intestate, shall descend by the general course of the law, in right of blood and inheritance. That the common law of both countries is the same, designating the same person, by the same rules and courses of descent, as the heir to an ancestor, in all cases, and the heir to his estates of inheritance, unless in the particular event which has happened, an act of assembly has substituted some other person or persons to take the place of the ancestor, for its enjoyment and disposition, as a special law for the case, like to the law of custom, which breaks the course of descent, according to the general course of descent, according to the general course of the common law. This was the law of the province, from its first settlement, it was expressly declared so, by the eighth section of the act of 1705, and the heir was referred to as the heir, in the abstract, according to the meaning of the word as given by Hobart. The said lands and tenements shall descend and come to the intestate’s heir-at-law, according to the course of the common law aforesaid. 3 Sm. Laws 153, 158 n.; 1 Dall. Laws app’x 45. That heir-at-law, or heir simply, does not mean heirs by custom in England, or statutory heirs in Pennsylvania, is the evident meaning of Judge Yeates. The observation of Chief Justice McKean, in the same case (2 Yeates 61; 2 Dall. 245), “ Thomas could not in this case be considered as heir-at-law in Pennsylvania, where, if, at that time, a person died intestate, leaving divers children, his real estate descended to all his children equally; the eldest son having only a double portion or share, and therefore, the devise may even be considered a condition,” draws us irresistibly to the same conclusion. The eldest son could not take as heir-at-law, by the course of descent, in a case to which the act of assembly applied, and by superseding the common law, established a special course of descent; but he could be, and is, by the existing law, heir-at-law, in this state, according to the opinion of the court, delivered by the Chief Justice, in Johnson v. Haines, and of Judge Yeates, in Findley v. Riddle, in a case not embraced in any act of assembly, which accords precisely with the principle they laid down in Ruston v. Ruston. Taking these three cases in conjunction with Cresoe v. Laidley, they completely negative the proposition, that there is any difference between an heir-at-law here, and in England, except such as is made by custom or act of assembly. This becomes a negative pregnant, with important consequences as to the legal meaning of the word heir-at-law, that it not only is that, which the common law gives it, but that it is not to be taken to refer to the customary or statutory heirs. “The term heir-at-law, conveys no idea, with us, they are all his co-heirs,” it is thus a term of contradistinction, and of designation, denoting the person who has and can have no co-heirs, the sole inheritor of the estate of the ancestor by right, in its nature necessarily exclusive; the law of both countries recognises heirs as a class, °r a number of persons having equal rights by special law, and the heir as one person entitled by common law to the whole estate, by right of blood alone. This necessarily follows, from the opinions of the judges in Ruston v. Ruston, in accordance with the role laid down in all the cases, from Counden v. Clerlce, to Findley v. Riddle; that customary or statutory heirs cannot take by a deed or devise to the heir-at-law, the heir, or right heir, of the grantor or devisor, because they are different persons, claim-mg in different characters and capacities, and the words are incapable of substitution as convertible terms, without uprooting the whole course of descent, and every settled rule of inheritance and construction. See Gilb. Dev. 16, 162; 3 Salk. 336. 323 495« SUPREME COURT [Jan’y Harrison v. Nixon. court cannot decide it. If it can be shown, either that the fact is not material, or that it is sufficiently averred, the motion cannot be sustained. In the court below, the question of domicil, though it was made a point in the cause, was little relied upon. The argument went mainly on the ground that the law of England and that of Pennsylvania, as to the construction of the will in question, was the same ; and if this position be correct, it is manifest, that the question of domicil is wholly immaterial. The establishment of this In all the cases which have arisen on the construction of wills, the supreme court have given to the word heirs, in all the modes of expression, the same effect which they have by the common law, whether as a word of purchase or limitation, as conveying an estate for life, in fee, or in tail. Whenever it operates as a word of limitation, the estates descend to the heir at common law, or in tail, as the case may be, and not the special or statutory heirs, according to the act of assembly, the operation of which is confined to cases where an intestate is seised in his own right, both at law and in equity, of an estate of inheritance, descendible to his heirs general. We do not deem it necessary to examine in detail the various cases which have been decided in this state, on the subject of the descent of lands; the very accurate and valuable digest of Mr. Wharton furnishes, under the appropriate heads, a host of authorities, which fully establish the position of Judge Duncan, in the case of Lyle v. Richards (9 S. & R. 358). It is plain, that from the date of the charter, until laws were made to alter the succession, lands descended according to the course of the common law; and not only descent, but enjoyment and purchase, including every other mode of acquisition, were governed by that law, acquired and lost by the course of the same common law.” Assuming it, then, to be the settled law of both countries, that the word heir, right heir, or heir at common law, without any qualifying or explanatory words, in a will, are to be taken as words of limitation, it remains to take a view of the cases in which they are words of purchase, or a designation of the person to take by the will, as purchasers and not by the descent. Fearne 79 a, 149, 158, &c. Whether, therefore, this case is to be dicided by the law of England or of this state, the result must be the same, as settling the law of the case, which we will now apply to the will in question. Nothing is left for presumption or construction, in face of this solemn certificate, and repeated declaration of intention; it negatives all belief that he meant to leave his estate to be disposed of by the will of any one but himself, or that any one was intended to be his heir, but the one who was made so by the law in right of blood. Nor can we be convinced, that it was his intention, that while his will remained unaltered for thirty-three years, his own disposition of his estate should be subject to the changes in the law of the state, from time to time. But had this been in his mine, it would make no difference, for in 1824, he had no half-brothers and sisters alive, an the act of 1797 making no provision for such case, his heir-at-law, his lawful heir by the common law of Pennsylvania, was John Aspden, of Lancashire, England, w o would have inherited his real estate, and his personal property would have been vested in the administrator appointed by the register, in trust for the next of kin, according to the law of England. The effect of his will is, to leave the real estate to descen to his devisee, as if no will had been made, and as to the surplus, to appoint an executor, with directions to pay it over to the person whom by his will he had su s i tuted as his benficiary, in place of his next of kin; this person was designate y a well-known and understood term, which the law of both countries fastens on o n Aspden, as indissolubly as if he had been especially described by name, birt , res^ dence and occupation. From all these cases, we are abundantly satisfied, t a law of this case is definitely settled, both in England and this state, and we can av^ no hesitation in expressing our most decided opinion, that John Aspden, the eir a law of the testator, is entitled to the whole of his estate, by the fixed rules o a , which we are not at liberty to question. 324 1835] OF THE UNITED STATES. Harrison v. Nixon. 495Î position, however, belongs to the main argument. To discuss the principal question in the cause, upon a preliminary question, whether or not the cause shall come on, would derange the whole order of the argument, and place the appellee under great disadvantages. The proper course seems- to be, for the court to hear the cause argued ; and if the decree of the circuit court can be affirmed, without touching the question of domicil, it will be unnecessary to consider whether the pleadings raise that question or not. If, on the other hand, it be found to be material, and the record does not present it properly to the court, it will be time enough to remand the cause, in order to have the pleadings amended. But the question of domicil, if it be material, is before the court. The rules of equity pleading, though they call for certainty and precision to a reasonable extent, are not so rigorous in their requirements, as those which govern the proceedings of courts of law. From the nature and objects of its jurisdiction, the rules of a court of chancery must possess a more liberal character, 2 Madd. Ch. 168 ; Coop. Eq. Pl. 340. Testing the record of this cause by the rules of pleading in equity, fairly construed, the question of domicil is distinctly raised. The propel* place for the averment of such a fact is the bill; but if that be defective, the defect may be cured by the subsequent pleadings. If a material fact be not averred in the bill, it is not a good bill. To constitute a good bill, it must set forth such a case as will, upon its face, entitle the complainant to a decree in its favor. He must state his title *in such a manner as to give the court to understand the character in r, . which he claims, and the nature and extent of his interest. Mitf. Pl. 41, 42, 156 ; 2 Madd. 168 ; Coop. 5-7. If, however, these matters be stated in general terms, it is sufficient; all the subordinate facts in the evidence intended to be given, need not be stated. Every subordinate fact is substantially averred by the averment of a general fact, which embraces them. If the bill, on its face, shows an equity in the complainant ; if it exhibit him in a character possessing a right to sue, and having an interest which he has a right to claim, it is a good bill, and the defendant must plead to it, or answer it. If it be defective, a demurrer may at once be opposed to it. Mitf. Pl. 13 ; Coop. 109, 118. The criterion of the soundness of a bill, is its capacity to bear the test of a demurrer. By this test, let the bill in this case be tried. It sets out the will of the testator, &c., and avers, that the complainant is his heir-at-law, within the meaning of the will, and as such, entitled to the property disposed of by it. It does not set out the details of his title. It does not say, whether he is heir by the law of Eng-and, or by that of Pennsylvania, nor does it state how he is heir, so as to show under which law he claimed ; and it would have been highly imprudent, if he had done so. If he had stated his title in such a manner as to show that he claimed under the law of England alone, or under that of ennsylvania alone, he might have been confined to proof of his title as stated ; but by asserting his claim as heir-at-law, generally, he may show that e is so by any law which may govern the case. , . law England and that of Pennsylvania be the same, it is clear, at it is of no consequence where the domicil was. If, on the other hand, e was the heir-at-law intended by the will, only because the testator’s omicil was in England, then the fact of domicil was a subordinate fact-one of the constituent parts of the character of heir, the averment of which 325 496 SUPREME COURT [Jan’y Harrison v. Nixon. is embraced by the averment of the general fact of his being the heir-at-law described by the testator. When he avers that he is the heir, he avers all the facts which make him so ; the whole embraces all the parts. Apply-*. ing to this bill the test of a demurrer, does it show *title in the com- -* plainant ? If it had been demurred to, what would have been the result ? The will gives the estate of the testator to his heir-at-law; the plaintiff avers that he is the testator’s heir-at-law ; the demurrer admits that he is so; and, as a necessary consequence, the decree must be in his favor; or the defendant must plead or answer. The fact of domicil, therefore, if it be material, is substantially averred in the bill. But if the bill be defective, it is cured by the answer ; which distinctly presents to the court the question of domicil. An answer not only meets the case set forth by the bill, but may set forth new matter essential to the defendant’s case, either to add to, or qualify, the case exhibited by the bill, or to make out a new and independent case for himself. If the new facts stated in the answer are denied by the plaintiff’s replication, they are put in issue ; if they are not denied, they are submitted to the court, by whom their legal effect is determined. Mitf. Pl. 15, 315, 314; Coop. 324; 2 Madd. 334. If, then, facts necessary to make out the plaintiff’s case are not found in the bill, but the defendant introduces them into the answer, and submits the whole matter to the court, it is regularly before them. This rule has a peculiar application to a suit against a trustee, such as the defendant in this cause. Mitf. PL 11. In the present instance, the whole matter is presented by the answer. The defendant answers what he considers the interrogatories propounded by the bill. He does not aver that the testator’s domicil was either in England or Pennsylvania, but he states distinctly all the facts within his knowledge, upon which the question of domicil depends ; and being incapable of drawing the conclusion of law from the facts, he submits the decision of the question to the court, to whom it properly belongs. If he had answered otherwise, he must have done so with great latitude of conscience ; for how could he undertake to swear to a conclusion of law ? The reason of the law is its life. The reason why averments are required is, that the parties may be apprised of what they are to meet, and to prevent surprise. Coop. 5, 7. If, then, the plaintiff omits to state his case in such a manner as to apprise his adversary of a material fact in dispute ; and the defendant shows, not only by his answer, but by his * *evidence, that he is fully aware of it; how can it be alleged, that he is taken by surprise; and how can the court be at a loss for the means of deciding the question raised by it ? After such an answer, no reasonable objection could be made to any evidence on the subject of domici, offered by the plaintiff ; for the question having been raised by the answei, if not by the bill, either party was at liberty to give his proofs in relation to it ; neither party could object to the evidence, for want of an averment. But the answer to the present motion derives additional force from the cir cumstance, that not only no objection was made to evidence offered by t e plaintiff, but the real defendant in the cause, by whom the present motion is made, themselves gave the only evidence that was given on the su jec of the testator’s domicil. The parties went to a hearing upon that evi ence, and the court passed upon it. Can it then be tolerated, that the party w o raised the question, who gave all the evidence he could collect in re erenc 326 1835] OF THE UNITED STATES. Harrison v. Nixon. 498 to it, who went to a hearing upon it, and had a decree against him, shall, in an appellate court, move to remand the cause for want of a technical averment in the bill ? To permit him to do so, would be to sacrifice reason and justice to the merest and most unsubstantial form. It would be vain to say, that courts of equity act on the broad principles of justice, and that rules are devised as instruments for the promotion of its ends. To grant the present motion, the court must go beyond a court of law in its adherence to technicality. Tilghman, for the appellants.—It is the wish of all the parties interested in this case, that all the questions involved in it shall be fully presented, and a full discussion of them take place, before this court shall decide upon the interests affected by these questions. To the executor, this is most important for his protection. But a decree of this court, in the present state of the pleadings, will not be a final termination of the controversy. The fact of the domicil of Matthias Aspden, does not appear in the pleadings, nor on the evidence in the case. It is not averred in the bill ; nor is it brought forward in the answer. The bill alleges, that the will was made by a citizen of Pennsylvania ; the answer admits this, and that the testator died in *London. Neither the assertion of citizenship, nor the admission of the place of death, sets forth the fact of domicil. l The fact of the testator’s domicil has always been considered as most important in the case; whether in England, or in Pennsylvania, will, as the appellants believe, have a positive and decisive influence on the rights of the claimants. If the domicil is now conceded by the appellees to have been in Pennsylvania, the appellants are ready to proceed in the argument on all the other questions in this cause. In England, proceedings to establish the claims of certain persons who live there, were instituted, for the purpose of obtaining the property of the testator in that kingdom ; and the proceedings were dismissed, on the ground that the domicil of the testator was in America; and the whole of the questions in the case, and all the claims of those who made claims, were properly to be litigated in Pennsylvania. The executor has not undertaken to represent the interest of any one, but he stands independent. He asks, 'that the case shall be so disposed of, that he shall be protected from all further claims. If the record shall be certified, after the case shall be decided, without containing an explicit averment of domicil, and that the fact of domicil was not inquired into, it will not appear that the fact of domicil is decided. This would expose the executor to a claim in another state, resting or asserted to rest on the domicil, and claimed to be essential to the full decision of the right of parties under the will. It is not the purpose of the counsel for the appellants, to refer the court to the elementary rules on this point; as it is conceded by the counsel for e appellees, that the allegation of domicil must appear in the pleadings. . e only question, therefore, is, does this appear ? or was it so made, as that it was investigated, and decided by the circuit court? t is known to the court, that there is another party claiming the whole th property of the testator, and who is not in the proceedings before e circuit court. He is a formidable party, on the principles decided in the 327 409 SUPREME COURT [Jan’y Harrison v. Nixon. circuit court. This party was, in the opinion of that court, on a bill for a review, which was presented to the court, admitted to be of this char-* acter.(a) *It is thus shown, that the record is defective, and that J there is such a party. But to the next of kin, the appellants, this party is of no importance ; his claim does not affect their claims. They deny his rights as heir-at-law; although they maintain that his rights, and those of all others, shall be presented in the case before its final disposition. Sergeant, in reply.—Is the question of domicil open, on the pleadings ? Does it appear important ? If the want of an essential averment is not taken notice of by the party claiming it as necessary, when he has a full opportunity to do so ; his right and opportunity to do so may be lost. If the point is not sufficiently before the court, the party complaining should have moved to suppress the evidence on it. If he does not do this, and goes into the investigation, can he afterwards avail himself of it ? having taken the opportunity of an examination and discussion of the case, and this, after a decree. Those who were parties in the circuit court are precluded from taking this exception. Is there not, in the pleadings, sufficient to have introduced evidence as to the domicil of the testator ? And if there was not; should not those who consider an averment essential hitve moved to suppress all evidence on it ? • Is it necessary to allege domicil ? The law settles, that every man has a domicil. The answer of the executor shows, that the domicil was brought forward. But in this case, the domicil of the testator was unimportant, as the law of England and Pennsylvania, by which this case must be decided, is alike. There is enough in the case, for the decision of all the claims on the estate of the testator ; and the executor will be entirely safe, under the decision of this court. He has done all that could or can be required of him. It is denied, that any persons but those in the record have any right to interpose in this court; nor should the proceedings in the circuit court, after the appeal, have been referred to. Certainly, no reference should have been * made to the opinion of the *court, in a case subsequently brought before that court, by a person not a party in the case here. Nor would the opinion of the presiding judge in the circuit court sustain the reference to it, if that opinion were fully examined. Ingersoll, counsel for the executor, offered to the court the proceedings in the circuit court of Pennsylvania, on a bill of review filed in that court against the executor. He stated, that if the court shall think proper to take those proceedings into their consideration, the counsel for the executor, and those who represent the parties to the bill of review, are prepared an ready to act as may be considered proper, and may be permitted. Sergeant desired, that the principal question before the court shall be first decided, and after this shall be disposed of, any other matters w ic may properly be considered may be examined. Stoky, Justice, delivered the opinion of the court.;—This is the case of an appeal from a decree of the circuit court of the district of Pennsylvania, (a) The opinion of the circuit court, denying leave to file a bill ox review, will be found in the appendix to this volume. 328 18351 OF THS UNITED STATES. 501 Harrison v. Nixon. in a suit in equity. The bill was filed by Samuel Packer, and asserts, that one Matthias Aspden, a citizen of Pennsylvania, made his will, dated in Philadelphia, on the 6th of December 1791 ; and thereby bequeathed all his estate, real and personal, to his heir-at-law, and afterwards died, in August 1824 : and his will was proved and letters testamentary were taken out in Pennsylvania, by the appellee, under which he has received large sums of money ,; and the bill then asks for a decree in favor of Packer, who asserts himself to be the true and only heir-at-law of Matthias Aspden, and that he is solely entitled under the bequest. The answer of the executor states,, from information and belief, that the testator was born in Philadelphia, which was the residence of his parents, about 1756 ; that he continued to reside there, doing business as a merchant, with some success, before he was twenty-one years of age ; that before the breaking out of the war between Great Britain and America, in 1776, being still a minor, he went to England, with what view, the executor’ is not, from his own knowledge, able to say, but he believes that he went with an *impression that the power of Great Britain must soon prevail in putting down resist- 1 ance in America ; that the testator subsequently came several times to the United States, and invested large sums in government stocks and other securities ; but whether, after so returning to the United States, the testator went back to England as his home, or only for the purpose of superintending his property, and whether the testator did in fact change his domicil, the, executor (save and except as appears from the facts) doth not know, and is unable to answer ; but he believes, that the testator, when in England, considered himself, as an alien, &c.; and he died in King street, Holborn, London. The answer also states, that the executor proved the will, and toqk put letters testamentary in England ; and states certain proceedings had upon a bill in chancery in England, against him, by one John Aspden, there claiming to be the heir-at-law of the testator ; and annexes to his answer a copy of the bill. He also alleges, that several other persons have made, claims to the same property, as next of kin of the testator, of whose names, &c., he annexes a schedule. Various proceedings were had in the circuit court of Pennsylvania ; and a reference was made to a master to examine and state, who were all the heirs and next of kin of the testator. The master made a report, which was afterwards confirmed ; and thereupon, a final decree was made by the court, in favor of John Aspden, of Lancashire, in England, one of the persons who made claim before the master, as entitled, as heir-at-law, to the personal estate in the hands of the executor ; and the claims of the other persons claiming as heirs-at-law, were dismissed; and the present appeal has been taken by several of these claimants. The cause having, come before this court for argument upon the merits, a question occurred, whether the frame of the bill, taken by itself, or taken in connection with the answer, contained sufficient matter upon which the court could proceed to dispose of the merits of the cause, and make a final decision. The bill contains no averment of the actual domicil of the testator, at the time of the making of his will, or at the time of his death, or at any intermediate period. Nor does the answer contain any averments of domicil, which supply these *defects in the bill, even if it could do so, * as we are of opinion, in point of law, it could not. Every bill must L 329 503 SUPREME COURT Harrison v. Nixon. [Jan’y contain in itself sufficient matters of fact, per se, to maintain the case of the plaintiff ; so that the same may be put in issue by the answer, and established by the proofs. The proofs must be according to the allegations of the parties ; and if the proofs go to matters not within the allegations, the court cannot judicially act upon them as a ground for its decision; for the pleadings do not put them in contestation. The allegata and the probata must reciprocally meet to conform to each other. The case cited at the bar, of Matthew v. Hanbury, 2 Vern. 187, does not in any manner contradict this doctrine. The proofs there offered were founded upon allegations in the bill, and went directly to overthrow the consideration of the bonds, set up in the answer, in opposition to the allegations of the bill, the latter having asserted, that the bonds were obtained by threats and undue means, and not for any real debt, or other good consideration. Is, then, any averment of the actual domicil of the testator, under the circumstances of the present case, proper and necessary to be made in the bill, in order to enable the court to come to a final decision upon the merits? We think that it is, for the reasons which will be presently stated. The point was never brought before the circuit court for considera tion; and, consequently, was not acted on by that court. It did not attract attention (at least as far as we know) on either side, in the argument there made ; and it was probably passed over (as we all know matters of a similar nature are, everywhere else), from the mutual understanding, that the merits were to be tried, and without any minute inquiry, whether the merits were fully spread upon the record. It is undoubtedly an inconvenience, that the mistake has occurred ; but we do not see, how the court can, on this account, dispense with what, in their judgment, the law will otherwise require. The present is the case of a will; and so far, at least, as the matter of the bill is concerned, is exclusively confined to personalty bequeathed by that will. And the court are called upon to give a construction to the terms of the will; and, in an especial manner, to ascertain, who is meant by the words “ heir-at-law,” in the leading bequest in the will. The language of *5041 is *not of universal interpretation, having the same precise J import in all countries, and under all circumstances. They are supposed to speak the sense of the testator, according to the received laws or usages of the country where he is domiciled, by a sort of tacit reference, unless there is something in the language, which repels or controls such a conclusion. In regard to personalty, in an especial manner, the law of the place of the testator’s domicil governs in the distribution thereof, and wu govern in the interpretation of wills thereof, unless it is manifest, that the testator had the laws of some other country in his own view.1 No one can doubt, if a testator born and domiciled in England during his whole life, should, by his will, give his personal estate to his heir-at-law, that the descriptio personae would have reference to, and be governed by, 6 import of the terms in the sense of the laws of England. The import of them might be very different, if the testator were born and domiciled in France, in Louisiana, in Pennsylvania or in Massachusetts. In short, a will of per 1See Barrali v. Wallie, 29 Alb. L. J. 170; s. c. 37 N. J. Eq» 330 1835] OF THE UNITED STATES. 504 Harrison v. Nixon. sonalty speaks according to the laws of the testator’s domicil, where there are no other circumstances to control their application; and to raise the question, what the testator means, we must first ascertain, what was his domicil, and whether he had reference to the laws of that place, or to the laws of any foreign country. Now, the very gist of the present controversy turns upon the point, who were the person or persons, intended to be designated by the testator, under the appellation of “ heir-at-law.” If, at the time of making his will, and at his death, he was domiciled in England, and had a reference to its laws, the designation might indicate a very different person or persons, from what might be the case (we do not say what is the case), if, at the time of making his will, and of his death, he was domiciled in Pennsylvania. In order to raise the question of the true interpretation and designation, it seems to us indispensable, that the country by whose laws his will is to be interpreted, should be first ascertained ; and then the inquiry is naturally presented, what the provisions of those laws are. If this be the true posture of the present case, then the bill should allege all the material facts, upon which the plaintiff’s title depends ; and the final judgment of the court must be given, so as to put them in contestation in a proper and regular *manner. And we do not perceive, how the court can dispose of this causé, without ascertaining, where the testator’s t domicil was, at the time of his making his will, and at the time of his death ; and if so, then there ought to be suitable averments in the bill to put these matters in issue. In order to avoid any misconception, it is proper to state, that we do not mean, in this stage of the cause, to express any opinion, what would be the effect upon the interpretation of the will, if the domicil of the testator was in one country, at the time of his making his will, and in anothér country, at the time of his death. This point may well be left open for future consideration. But being of opinion, that an averment of the testator’s domicil is indispensable in the bill, we think the case ought to be remanded to the circuit court, for the purpose of having suitable amendments made in this particular ; and that it will be proper to aver the domicil, at the time of making the will, and at the time of the death of the testator, and during the intermediate period (if there be any change), so that the elements of a full decision may be finally brought before the court. The petitions of the claimants should contain similar averments. It appears, from the motions which have been made to this court, as well as from certain proceedings in the court below, which have been laid before us in support thereof, that there are certain claimants of this bequest, asserting themselves to be heirs-at-law, whose claims have not been adjudicated upon in the court below, on account of their having been presented at too late a period. As the cause is to go back again for further proceedings, and must be again opened there, for new allegations and* proofs, these claimants will have a full opportunity of presenting and proving their claims in the cause ; and we aré of opinion, that they ought to be let into the cause for tais purpose. In drawing up the decree, remanding the cause, leave will be given to them accordingly. The decree of the circuit court is, therefore; reversed; and the cause is remanded to the circuit court for further proceedings, in conformity to this opinion. 331 *506 SUPREME COURT [Jan’y Harrison v. Nixon. ^Baldwin, Justice. (Dissenting.)—The preliminary question which has been decided by this court, is one of the deepest interest to all suitors in the inferior courts of the United States, the judges thereof, and the profession generally. The nature of the objection to hearing the cause on its merits, or to even examine the evidence or the decree ; the time at which it was made, with its attendant circumstances ; make this case a precedent of infinite importance, as a rule for future proceedings in a court of the last resort, in the exercise of a jurisdiction exclusively appellate. A final decree of a circuit court, rendered in a long-pending and zealously contested cause, after* the fullest consideration, has not only been reversed, but all its proceedings so completely annulled as to open the case to new parties, new bills, pleadings, issues and evidence ; and to make it necessary to begin de novo, in the same manner as if the court had never acted on any question which could arise. This has been done, too, on an objection not taken by counsel, either in the circuit court, or assigned for error here, in the printed brief of their points, presented to this court as the ground of a reversal of the decree of which the appellants complain ; nor did either of their counsel think proper to avail themselves of the suggestion, after it fell from the bench, until the one who opened the argument had closed his view of the first ground assigned in the brief for error. And when, on the next day, another of the counsel of the appellants drew the attention of the court to the objection, it was not to reverse the decree, as erroneous in law or fact, but as a reason for considering it as so merely and utterly void, as to make it improper to examine into the errors assigned by himself and colleagues; and proper to suspend the argument on the merits, till the consideration of the question thus raised, the decision of which leaves the law, justice and equity of the case untouched, while every proceeding had in it is utterly prostrated ; leaving the parties, at the end of a seven years’ litigation, to begin anew. To them, it is no consolation, that these effects have been produced by an objection of mere form, not deemed by the counsel of either party worthy of being noticed or guarded against ; for the action of an appellate court on a judgment at law, or a decree in equity, can be of no middle character. A reversal annuls it to all intents and purposes ; it can no longer be given in evidence in support of any right, or as a proof of any fact, in favor *of the party in whose favor it was rendered, or against -* the opposite party ; no one thing remains a res adjudicata, but every question of law and fact is as entirely open, as if the court had never given a judgment or decree. It is inconsistent with the constitution of appellate courts in England, or the states of this Union, to modify a general reversal of a judgment or decree ; it is absolute, and must be attended with all legal consequences, which no court can avert by any salvo or declaration that it is reversed only pro formdj the decree or judgment cannot be, in any part, carried into effect in the court below, or come again into an appellate court, till a new one is rendered. The same principles prevail in the courts of the United States, by force of the judiciary and process acts, and the seventh rule of this court, which regulate all proceedings by those of the kings bench and courts of equity in England, unless otherwise provided for by law, subject to such alterations and additions as this court may prescribe to the circuit courts, or as they may make, not inconsistent therewith. ( Story’s Laws 67, 257.) This court has uniformly acted by the rules thus 332 1835] OF THE UNITED STATES. 50) Harrison v. Nixon. prescribed, which regulate not only its own proceedings, but its adjudication on those of inferior courts which are brought within its appellate power ; they must, therefore, be considered as the tests of the conformity of the decision now made, with the established principles of courts of original or appellate jurisdiction by the course of the law of equity, the rules of this court, and the acts of congress which regulate its exercise on appeals. In the circuit court, George Harrison and others were claimants of a fund in the hands of Mr. Nixon, as executor ; their petitions having been dismissed, on a final decree against them, they now, on an appeal, ask for its reversal for the reasons assigned in the brief of their counsel, which relate entirely to the merits of their claim; but at the same time contend, that the whole proceedings in the circuit court are mere nullities ; because the appellants themselves, as well as the other claimants, omitted to insert in their petitions a direct averment of the domicil of the testator, under whose will they all claim. As this objection is not aimed at the decree, or the right of any party who claims the fund, it must be considered as applicable solely to the form and frame of the original bill and petitions ; ““intended to present, not a cause of reversal of the decree for error in law or fact, but the broad question of jurisdiction. First, L whether it was competent for the circuit court, to make any decree in the case before them ; and next, whether the decree rendered is such, that this court, in virtue of its appellate* power, can hear and determine the matter appealed from. It must have occurred at once to the mind of the learned judge who first suggested the objection, and cannot have escaped the observation of the counsel who has availed himself of it, that if the case was within the judicial cognisance of the circuit court, no decree rendered by them could be treated as a nullity ; however erroneous, it is binding on the parties till an appeal, and becomes final, if none is taken within five years. It could not be declared a void act, for any cause which did not affect the original jurisdiction, without any reference to the decree rendered by the circuit court. To justify such a course, it must be in a case where this court would be bound to reverse at all events, and where its affirmance would not cure the defect; but would leave the original decree without any effect upon the rights of the parties, and prevent it from being received as evidence in any court, state, federal or foreign. An appeal, upon any ground short of this, must affect the decree as erroneous merely, on some matter injurious to the appellant; who had his remedy under the 22d section of the judiciary act, by an appeal from a “final decree in a suit in equity,” which it declares may “be re-examined, and reversed or affirmed, in the supreme court.” It follows, that there is a discretion to reverse or affirm, according to the right of the case ; and, surely, it cannot be contended, that if a decree can be affirmed on appeal, it can be considered as a mere nullity, after affirmance, if the question arising on the appeal was one of merely error, not of jurisdiction. Nor can it be doubted, that if the merits of the case were cognisable by the court below, ney are equally so on appeal; and that a final decree of affirmance binds a parties, in all courts, as to the matters decreed, which must be done oh a re-examination of the final decree. Such is the general course prescribed to this court by the 22d section, in all cases coming before them by appeal; the 24th is still more explicit. 333 508 SUPREME COURT [Jan’y Harrison v. Nixon. “That when a judgment or decree shall be reversed in a circuit court, such shall proceed to render such judgment, or pass such decree as J the district court should have rendered or passed ; and the supreme court shall do the same, on reversals therein, except where the reversal is in favor of the plaintiff or petitioner in the original suit, and the damages to be assessed or the matter to be decreed are uncertain, in which case they shall remand the cause for a final decision.” The second clause of the second section of the third article of the constitution declares, “ that in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make.” The 22d and 24th sections of the judiciary act, are the execution by congress of an express constitutional power, which makes these provisions as imperative on the supreme court, as if they had been detailed in the body of the constitution ; they form its constitution as an appellate court, defining its powers, and prescribing their exercise, in re-examining, reversing or affirming the final judgment and decrees of all courts which may be brought within its appellate jurisdiction. The 22d limits the appellate power to the revision of final decrees in cases in equity, herein departing from the course» of appellate courts in England and in New York; there, an appeal lies to the house of lords or court of errors, from the interlocutory orders and decrees of the chancellor; the other regulations prescribed by the judiciary act are in conformity to the uniform course of all appellate courts, as long settled by uniform practice, adopted by the rules, and followed in the decisions of this court. This course cannot be better defined than in the words of Chancellor Kent. “ It is the acknowledged doctrine of courts of review, to give such decree as the court below ought to have given ; and when the plaintiff below brings the appeal, the court above not only reverses what is wrong, but decrees what is right; and models the relief according to its own view of the ends of justice, and the exigencies of the case. The court above acts, therefore, on *appeals, in the given case, with all the plenitude of a court of equity of original jurisdiction, and the special terms of the decree, whatever they may be, becomes to this court the law of that case, and no other or further relief can be administered to the party.” 1 Johns. Ch. 194-5. This doctrine, then, is the law of this court, not only by the acknowledged principles of the law of equity, but as an injunction of the supreme law of the land ; from the observance of which, the court can be absolved by no rule or practice contrariant thereto. If its authority rested alone on either the recognised rules of appellate courts, or their settled practice, it might be varied at the discretion of the court, by their power to make rules respecting practice, proceedings and process ; but they can have no discretion to alter or depart from those “ principles and usages of law” which congress have adopted as regulations of, and exceptions to the appellate power of all the courts of the United States, pursuant to the provisions of the constitution. It must, therefore, be taken as a rule of constitutional law, binding on this court, that if it takes cognisance of a cause on appeal, under the 22 334 1835] OF THE UNITED STATES. j 510 Harrison v. Nixon. section, it must be by re-examining the decree, reversing or affirming it; and by the 24th, on reversal, to give such decree as the circuit court ought to have rendered, or remanding it for final decision, as the case may be. There can be no other course pursued ; for, as the appellate power is confined to those cases to which it has been extended by congress, and must be exercised within the limits and by the regulations prescribed, it can have no inherent powers, in virtue of which it can review of revise the decrees of the inferior courts, by any general superintending authority, such as appellate courts may have, whose jurisdiction has neither been conferred nor regulated by a constitution or statute. No principle has been better settled, or more steadily adhered to, than that this is a court of special jurisdiction, whether original or appellate, which the constitution has defined and separated by a line which congress cannot pass, by extending that which is original, to cases which are appellate, or e converso. 1 Cranch 164, &c. As the present is an unquestioned case of appellate jurisdiction, it must be exercised according to the regulations prescribed by congress ; by an examination *of the final decree on its merits, if the court takes judicial cognis-ance of the record. Any other course is wholly unknown in an appel- *-late court of equity ; unless there is such a fatal defect in the record, as affects the jurisdiction of the court below, and prevents the court above from acting judicially upon it, by hearing and determining the matters in controversy; in which case, the decree will be reversed, the cause remanded, and the circuit court be directed to dismiss the bill, or make the amendments necessary to give it jurisdiction. It is not pretended, that the circuit court has not jurisdiction of this case, as one between proper parties, touching a proper subject-matter of controversy ; nor can it be doubted, that the jurisdiction of this court is equally clear. A final decree has been rendered, an appeal regularly taken, by parties affected by the decree ; who, having given the requisite security, have a right to be heard on all matters appealed from, to ask a reversal and a decree in their favor. The party in whose favor the decree has been rendered, appears here, pursuant to the citation, with an equal right to defend his interests, to demand an affirmance of the decree, with a mandate for its execution. This court, then, cannot refuse to hear the appeal, on the ground of a want of power to hear and finally determine all matters appealed from, which are properly and fully cognisable by both courts ; and this objection does not profess to be founded on the want of competent parties to a controversy in the federal courts, or a subject-matter cognisable in equity. As it avoids these questions, the objection defeats itself ; for it must necessarily aPPly to the course of the circuit court in the progress of the cause, and their final adjudication on the matters submitted by the parties ; the revision of which is the ordinary exercise of the jurisdiction of an appellate court, in conformity with the acknowledged doctrine of such courts and the positive injunctions of the judiciary act; which it is the direct object of this motion to prevent, and which has been effected by the judgment now rendered. There being no doubt of the jurisdiction of either court, the only questions which can arise are, whether any of the petitioners have, on this record, shown a right in equity to demand from the respondent, Nixon, the fund which he holds in his hands, subject to the order of the court, 335 *312 SUPREME COURT Harrison v. Nixon. [Jan’y *he claiming no interest in it, except his commissions and proper credits. The case is, therefore, one of ordinary occurrence ; a bill in equity filed by one claimant, and petitions by others, for the surplus of an estate in the hands of an executor ; who, in his answer, interpleads, submits to any order the court may make, and prays their protection by such a decree as will save him from future litigation. Whether a bill in equity contains any ground for relief, or, what is called in the language of its courts, “ equity,” is not a question of jurisdiction, but of merits ; the inquiry is, has the petitioner set forth a cause of action in his complaint ? has he averred any matter which, if true, entitles him to the relief prayed for, or any relief ? or set it forth in the manner required by the rules of equity ? If he has, the respondent must plead some new matter in avoidance ; or in his answer give some reason why he does not do, or ought not to be decreed to do, the thing required of him. If the complainant’s petition contains no equity, or sets it out defectively, it is good cause for demurrer, generally, or for cause ; or the respondent may object in his answer, or at the hearing, to the want of equity in the bill ; and it is a good ground for the reversal of a decree, on appeal. So if a question arises whether the allegations of the bill are made out by the proofs in the cause, it is a proper subject of consideration, before rendering a decree in the court below, as well as review in the appellate court ; not as a question of jurisdiction,but one which arises in its exercise. “It is well settled, that the decree must conform to the allegationsòf the parties” (11 Wheat? 120); and be sustained by them as well as by the proofs in the cause (10 Ibid. 189); but whether it does so conform, and is so sustained, is determined by the appellate court ; on the inspection of the whole record and proceedings before them ; as was done by this court in Carneal v. Banks, and Harding v. Handy, above cited. In examining the allegations of a declaration in a court of law, a court of error examines only whether the plaintiff has set out a title or cause of action. “ If,” in the language of this court, “ it is defectively or inaccurately set forth, it is cured by a verdict ; because, to entitle the plaintiff to recover, all circumstances necessary to make out his cause of action, so imperfectly stated, must be proved at thè trial; but, * , w^en 110 *cause of action is stated, none can be preSumed to have J been proved. The case is not to be considered as if before us !on a demurrer to the declaration. The want of an averment, so as tó let in the proof of usage, cannot now be objected to the record. The’ evidence was admitted, without objection, and now forms a part of the record, as contained in the bill of exceptions. Had an objection been made to the admission of the evidence of usage, for the want of a proper averment in the declaration, and the evidence had, notwithstanding, been received, it would have présented a very different question.” 9 Wheat. 594-5; This is the settled rule of this court, in cases at law, that they will not revdrse’ a judgment for any defective averment in a declaration, not demurréd tò, if the plaintiff has substantially set out a cause of action. Such, too, is the established principle in cakes in equity ; as, where a bill was filed to set aside a conveyance, on Account of the mental incompbtèncy òf the grantor, tvhich contained no direct or positive averment of his incapacity ; yet the court took cognisance of the case, examined the bill and proofs, and decided that, “ although a more direct and positive allegation that C. H. was incapable 336 1835] OF THE UNITED STATES. 513 Harrison v. Nixon. of transacting business, would have been more satisfactory than the detail of circumstances from which the conclusion is drawn ; yet we think that the averment of his incompetency is sufficiently explicit to make it a question in the cause. The defendant has met the charge, and we cannot doubt, that his answer is sufficiently responsive to give him all the benefit which the rules of equity allow to an answer in such cases.” 11 Wheat. 121. In that case, the whole gravamen of the bill, the whole equity of the case, was in the averment of the incompetency of the grantor to make a contract ; yet it was held sufficient, to aver the circumstances from which the conclusion could be drawn, that it was enough, if the bill made it a question in the cause, that the defendant had met the charge, and his answer was sufficiently responsive. The court proceeded to look into the proofs in the cause; inquired whether the testimony established the incompetency of C. H. ; and examined the immense mass of contradictory evidence which the record contained, with attention; and affirmed the decree of the circuit court of the first circuit, annulling the contract, on the ground of *incom-petency. *• It is, therefore, a settled point, that an objection to the sufficiency of the averments of the bill, must be considered by the appellate court as one directly involving the merits of the case; it is the statement of the complainant’s cause of action, to which the defendant must demur, if he relies on the want of form, manner or circumstance, or he loses the benefit of the objection. If he relies on an objection to the substance of the averment, or its variance from the proofs in the case, he must make it appear to the satisfaction of the court, that the bill contains no equity on its face, that no cause of action is set forth, nor any circumstances from which the conclusion of an averment of one, could be drawn conformable to the evidence adduced. The application of these cases to the record of the circuit court, presents only this difference ; by the substitution of the word domicil for usage, in Henner v. Bank of Columbia, and citizenship, for incompetency, in Harding v. Handy, the rule and principles of both are identical in point of law. In applying these maxims of this court to the objection made by the appellants to the re-examination of this case, the record shows, that the gravamen of the original bill and all the petitions is, that Matthias Aspden made a will, devising his real and personal estate to his heir-at-law, and died, leaving Henry Nixon, the respondent, his executor, who has in his hands a large surplus of personal property, to which the several parties aver themselves to be entitled by the terms of the will, but which the executor refuses to pay over, though bound in equity so to do. If these averments are true, if they are made out by the proofs and exhibits in ‘the cause, there is certainly equity in the bill, sufficient to entitle the devisee or legatee to a decree against the executor, for the surplus of the estate in his hands. Had he demurred to the bill, he would have been adjudged to answer over, for there could have been no clearer case for the interposition of a court of equity ; or if he had insisted on the objection at the hearing, it could not have been doubted, that there was a substantial averment of a ground of relief. The execution of the will was duly proved, the sanity of the testator was admitted, the fund was in the hands of the respondent, who admitted the 9 Pet.—22 337 *515 SUPREME COURT [Jan’y Harrison v. Nixon. trusts, submitted to the * jurisdiction of the court, ready to abide their decree; he held the money for such person as they should decree to be the person entitled under the will, which was an exhibit in the case. The only question depending was, who was the person that filled the description of the devisee or legatee; when that was ascertained, the whole controversy was ended. Had the will named Samuel Packer, of New Jersey, the original complainant, George Harrison, of Philadelphia, or John Aspden, of Lancashire, England, two of the petitioners, parties to this appeal, as the favored objects of this testator’s bounty ; the executor would have stood without an excuse, for not paying him the surplus of the estate. It could not be a material averment, where the testator’s domicil was ; his executor was bound to obey the directions of his will, be his domicil where it might. This proposition admits of no doubt. But as the will names no person, it must be ascertained, from its terms, who was intended to be the devisee, or whom the law designated as such, by the legal intendment of the words used in the will. When that is done, the rights of the person or persons thus designated, and the duties of the executor, become the same as if he had been expressly named as the person entitled, on which the question of the domicil of the testator could have no direct bearing. The only direct question on the construction of the will, was the intention of the testator as to who should enjoy his estate after his death; all other questions were collateral to this, and the only effect of his domicil could be, as the ground of an inference of his intention being to give it to such person as should be his heir by the local law. But this is only a circumstance from which to draw an inference of intention, and before such inference could be drawn, it must be made to appear, that the law of England designated one person, and the law of Pennsylvania a different one. If the law of both countries is the same in this respect, the averment of domicil in the bill would not put in issue even a circumstance, from which any conclusion could be drawn; and so far from being matter of substance affecting a final decree, it would not be a ground of special demurrer. If it once becomes the established rule of this court, that the decree of a circuit court shall be annulled on a motion, without an examination of the record, * 1 because it *does not set out an averment of a collateral fact or cir- J cumstance, bearing on the intention of the testator, by inference merely, then every such fact or circumstance must be averred distinctly, of which domicil is but one of many. The state of a testator’s family and property is always referred to, to ascertain the devisee or thing devised; evidence of other collateral facts may be introduced, in many cases, to aid in the construction of a will, or to show the intention of the testator ; but no court of equity ever held it necessary to aver those matters in a bill brought to enforce the trusts of the will, in favor of a devisee or legatee. In this case, however, the original bill alleges the testator to have been a citizen of Pennsylvania, at the time of his death ; this is done in direct and positive terms ; it is only necessary, therefore, to apply to this averment the principle laid down by this court, in Harding v. Handy. Is citizenship a circumstance from which the conclusion of domicil may be drawn ? Is it sufficiently explicit, to make domicil a question in the cause ? and has the respondent met this part of the bill ? These questions are of easy solution. The domicil of a citizen of Pennsylvania is certainly not presumed by law 333 1835] OF THE UNITED STATES. 516 Harrison v. Nixon. to be in England, without some proof of his residence there, but is presumed to be in Pennsylvania, till the contrary is proved. The respondent has considered the averment of domicil as made, for he has answered it; the parties in the cause have deemed it a question raised, by taking testimony touching it; each of the ten counsel who argued the case in the court below, made it a point, except one, who did not deem it material; and the court thought it proper to take it into their consideration, and express an opinion upon it, as a point which had been argued—not whether the domicil had been properly averred, but where it appeared by the evidence to have been in fact, and its bearing on the will and cause. It was the most deliberate opinion of both the judges of the circuit court, that the law of both countries pointed to the same person as the devisee; and that the fact of domicil had no bearing on the intention of the testator, or the construction of his will. As this was a question of local law, arising directly in the case, it was deemed necessary to examine it thoroughly, before rendering a final decree; and if it is now one vital to the case, it would seem proper, at least, to consider whether the conclusion of the circuit court was so clearly wrong, on the law *of Pennsylvania, as to justify this court in annulling their rHs final decree, without an argument on the point. *• In this opinion, the circuit court were supported by the counsel of the appellants, in their printed brief, presented for the argument of the cause in this court. Their third point is, “ that the law of Pennsylvania is to govern this case, and that by that law they are entitled.” Their fourth point is : “ but that if the case is to be decided by the law of England, still the appellants are entitled.” Thus, most distinctly admitting the identity of the law of both countries in its application to this will, which was also asserted by the counsel of the appellees. Nor have the appellants’ counsel, in their argument of this motion, even contended, that there is any difference between the respective laws, as to the person who is the heir-at-law of the testator, or who are his next of kin, by the statutes of distribution. In this union of opinion between the judges of the circuit court, and the counsel of all parties, thus apparent to this court, it was not an unreasonable expectation, that they would, at least, have looked at the record, the evidence, the law, and decree, before they would authoritatively decide, that there was nothing deserving an argument, without the averment of domicil. The whole case turned upon a question of local law, which had long been settled by the highest judicial tribunals of Pennsylvania, and sanctioned by the legislature, as firmly an any one principle of her jurisprudence—that the common law of England, as to the descent of property, had, from the charter of Pennsylvania, been adopted in all cases not specially provided for by act of assembly. It remained only to examine the legislation of the state, to ascertain whether the present case was embraced within the provisions of any law, had it been a case of intestacy; if it was not, then it was an admitted rule, that the common law governed it. But as the present is not a case of intestacy, the range of inquiry is still more narrowed; it turns upon the words of the will, which is the law of the case, paramount to any other. Local laws can have no other effect on its construction, than by their presumed operation on the mind of the testator, when he made his will, as an indication of his intention to refer o the law of his domicil, defining its terms, Yet, before such *in- *- 389 518 SUPREME COURT Harrison v. Nixon. [Jan’y tention can be inferred, it is a settled maxim of the law, that it must stand well with the words of the will; it cannot be admitted, to vary its plain words, or their settled legal signification. If these considerations afforded no ground for inducing the court to give the record an appellate inspection, there are others which may serve as some apology for the court below, and the counsel there, as well as here, for overlooking the indispensable necessity of an averment of domicil, in order to give to either court jurisdiction over the subject-matter of the cause. In the first place, no such rule is laid down in any book of equity practice, or any adjudged case, in any court of equity, in England or this country, and it forms no part of their practice, as adopted by the acts of congress and the seventh rule of this court. In the next place, if such averment had been required by the ordinary rules of equity practice, it was necessarily dispensed with, by the adjudication of this court on the subject of domicil, in a case of intestacy, which is much stronger than the one under the will; for in the former case, the local law applies directly to the estate of an intestate, as the rule by which it shall be distributed. The law of the situs of the property, the domicil of the intestate, or of the place of administration, must govern ; but which should be adopted by this court, was elaborately argued, in 1831, in the case of Smith, Administrator of Robinson, v. Union Bank of Georgetown, 5 Pet. 518, 523. In that case, the intestate was born in Maryland ; domiciled in Virginia; died in Pennsylvania; had personal property in this district, being a claim upon the government, on which administration was had here ; he died insolvent. The question arose, by what law his estate should be distributed among his creditors ; on which this court decided, that it should be the law of the place of administration, and not of the domicil, which was the point directly adjudged, and from which only one judge dissented. The question of distribution among the next of kin, was not directly before the court, but was noticed in their opinion, from which the same judge dissented also. In alluding to the latter question, the words of the court are : “ With regard to the first class of cases, we expect to be understood as not intending to dispose of them, directly or incidentally. Whenever a case arises upon the distribution of * an *intestate’s effects, exhibiting a conflict between the laws of the 5 J domicil and those of the situs, it will be time enough to give the views of this court on the law of that case. That personal property has no situs, seems rather a metaphysical position, than a practical and legal truth.” < In noticing the provisions of treaties on this subject, the court say, “ It would seem, that such a provision would be wholly unnecessary, if there existed any international law, by which the law of the domicil could be enforced in that regard, in the country of the situs ; or if the fact of locality did not subject the goods to the laws of the government under which they were found at the party’s death. In point of fact, it cannot be questioned, that goods thus found within the limits of a sovereign’s jurisdiction, aie subject to his laws ; it would be an absurdity in terms, to affirm the contrary.” “ This necessity of administering, where the debt is to be recovere , effectually places the application of the proceeds under the control of t e laws of the state of the administration. And if, in any instances, the rue is deviated from, it forms, pro hdc, an exception, a voluntary relinquishmen 340 183S] OF THE UNITED STATES. MA Harrison v. Nixon. of a right countenanced by universal practice, and is of the character of the treaty stipulations already remarked upon, by which foreign nations surrender virtually a right, which locality certainly puts in their power.” Against these doctrines, the dissenting judge most earnestly, but in vain, remonstrated, insisting, that it was settled by the international law of the civilized world, that personal property had no situs ; that it was distributable by the law of the domical, and that if these principles were shaken by this court, or declared to be unsettled, irremediable and utter confusion would ensue. For it was a subject on which congress could not legislate out of this district; nor the states of this Union, or foreign nations, beyond their respective territorial limits ; the inevitable result of which would be, that the law of distribution of an intestate’s estate would be different in every state and country, in which he owned any bona notabilia. That the court having decided, that a pecuniary claim on the government of the United States, was bona notabilia in this district, subject to distribution by the local law; it followed, that if the intestate had debts due to him in different states, or owned a part of the funded debt of different governments, or of the stocks of local *corporations, there could be no uniform rule of distribution, r*52o either among creditors or distributees. L But the result of the most deliberate consideration of this court, is, that which has been solemnly adjudicated and promulgated as the rule and guide for all the inferior tribunals of the United States. It would not have comported with the judicial duty of the dissenting judge, presiding in the circuit court of Pennsylvania, to have declared to the profession and suitors, that his overruled opinion must be taken as the law of the case. Had the counsel of the parties complainants moved that court to dismiss the bill, or petitions filed by themselves, or, after a final decree, had asked that it should be declared to be an extra-judicial act, because the domicil of a testator (not of an intestate) had been averred only as a conclusion to be drawn from an express averment of citizenship, the circuit court would have been bound to have decided, that it was unnecessary, according to the decision in Robinson n. The Bank ; for having settled that domicil was wholly immaterial in distribution among creditors, and when they declared, that “ we expect to be understood as not disposing, directly or incidentally,” of the question of distribution among next of kin ; the dissenting judge would have felt it his duty not to have disappointed an expectation, not only so reasonable, but which he would have obeyed as a mandate of paramount authority. The more especially, as the whole reasoning of the court of the last resort went to negative the materiality of domicil in any case ; but most emphatically was the dissenting judge bound, by his every duty, not to declare the law of the domicil to be the law of the case, in face of the distinct proposition of the court; “ that personal property has no situs, forms rather a metaphysical position, than a practical and legal truth,” and thus substitute metaphysics for law, as the rule of his judicial action. At the time of rendering their final decree, the circuit court for the Pennsylvania district could not have forseen, that without overruling the decision of this court, made in 1831, by the same high authority which pronounced it; when no question was presented to this court by counsel touching the matter, or argued by them, after the suggestion had fallen from the bench ; it should now appear to the same judges, to be a principle of law 341 *521 SUPREME COURT [Jan’y Harrison v. Nixon. so manifest, so clearly and decisively settled, as to make the *most solemn decree of inferior courts against executors mere nullities, because the pleadings on which they were founded did not contain an express averment of the domicil of the testator ; although the bill and answer contained express averments of the citizenship of the testator, the place where he made his will, the place of his death, of administration, and the situs of the property. As these averments were in strict conformity with the decision and reasoning of this court in Robinson n. The Rank, it could not have been thought, that there remained in the vitals of the record, a disease fatal to the action of the circuit court upon the matters in issue. Had it been objected, that the situs of the property, or the place of the testator’s death or of administration, had not been averred, the necessary amendment would have been made ; though the pleadings had averred the domicil, that must have been deemed immaterial, according to the then doctrine of this court, which was, that personal property had a situs, without any reference to the domicil of an intestate. It follows, that if an averment of the situs was indispensable, that of the domicil could not be, as the rules of distribution would be different by the local laws. And as the law of the situs was the rule, when these pleadings and issue were made up, and the final decree rendered, it would most certainly have stood the test of this objection, though it must have been reversed, had the situs not been averred, notwithstanding the domicil had been, however explicitly. Yet now it seems, that a record containing an averment of the situs in all its bearings on the case, is mere blank paper, because the domicil is averred only by way of inference or conclusion from facts stated. In 1831, the materiality of the situs was “a legal and practical truth,” that of the domicil was “ a metaphysical position/’ an absurdity in terms in the opinion of all the judges of this court but one. In 1835, the materiality of the situs, is the metaphysical position ; and that of the domicil, the legal and practical truth. This radical difference between the promulgated law of this court, on the same question arising at these periods, presents a conflictu legum which the circuit court of Pennsylvania were not bound to anticipate; the consequences of which it is hard to visit upon suitors in that court, by drawing a sponge over all the proceedings in this cause, to *^991 delay and *injury ; though they were had and conducted J according to the solemn opinion of this court as to the law of the case, when the suit began and ended. At that time, the judges of the circuit court had for their guide no better rules for their decision, than those laid down in 1831, and the practice of this court at the same term ; which, to one of the judges, at least, is some apology for not exercising his legal acumen, in discovering a fatal defect of jurisdiction over a cause, in which, it now appears, he has assumed an unwarranted power to render a decree on the merits. It is his consolation to find, not only in the solemn judgment in Robinson n. The Rank, the reasons for overlooking the indispensable necessity of an averment of domicil, but the fact, that in two other cases in the same term, this court had practically decided it to be unnecessary. The case of Rackhause v. Patton, Adm. cum test, ann., de bonis non, of James Hunter, was a bill in equity to compel an account of the personal estate of the testator, and for its due distribution; the bill averred the testator to be a citizen of Virginia, but contained no averment of his donn* 342 1835] OF THE UNITED STATES. Harrison v. Nixon. 522 cil. 5 Pet. 160, &c. The case of Page v. Lloyd, Executor of Hanbury, and Patton, Adm. cum test. ann. of Mann Page, was on a similar bill, containing an account of the situs of Mr. Mann Page’s personal property in two counties in Virginia ; but no averment of either his citizenship or domicil. 5 Pet. 304. This court took cognisance of both cases, on certificates of division from the circuit court of Virginia, and finally decided on all the matters so certified, without a doubt at the bar, or on the bench, of the regularity of the record ; and as the rules of its decision are the same, whether a cause comes up on certificate, or on appeal, these must have been deemed records on which it could act judicially. It is not doubted, that a further examination among the records of this court, on appeals from other circuit courts, in cases of equity against executors, will furnish additional proof, that if the practice of that of Pennsylvania has been in violation of all rules, it has the fullest sanction in the course of this court through all time; and this is the first time it has annulled a decree for such cause. It is equally unknown to the fundamental principles on which it is organized as an appellate court, which in this case has not exercised its powers as directed in its constitution, by *re-examining and reversing r*523 the decree, and rendering such a one as ought to have been given. L Its power has been exerted on a summary motion, not on an assignment of errors; the decree and all preceding acts of the circuit court have been declared null and void, collaterally, not for errors in the record or decree ; for this court would not re-examine either, nor have they, in remanding the cause, directed what final decision shall be made. The only exception in the 24th section of the judiciary act, which authorizes any departure from the injunction to render such decree as ought to have been made, is, “where the reversal is in favor of the petitioner in the original suit, and the matter to be decreed is uncertain ; in which case, they shall remand the cause for a final decision.” But this case does not come within the exception, for though the reversal is in favor of the petitioners in the original suit, the matter decreed was certain; it was, therefore, no case to be remanded ; though, if it was, the court has not remanded “ the cause for a final decision.” Its mandate is a peremptory order to the circuit court, to amend the pleadings from the beginnnig, to admit proofs of new matter and new parties ; in one word, to make a new case throughout; and concludes with ordering, “ such other proceedings are to be had in the said cause, by the said court, as to law, justice and equity shall appertain. It had, heretofore, been thought to be the province of a court of original jurisdiction in equity, to decide on amendments in their legal discretion, or according to the act of congress, with which this court never interfered ; that after publication, and before a decree, the admission of new proofs, new matter, or new parties, was discretionary with the chancellor, on a petition presented ; that after a decree made, but before enrolment, neither could be introduced into a cause, unless by a supplemental bill, in the nature of a bill of review ; nor after enrolment, unless by a bill of review, on newly-discovered evidence, filed by parties or privies to the original suit. It was also believed, that there was no distinction better established by the law of equity, than the different effect of defective pleadings, when demurred or excepted to in the court below, and when they are unnoticed till the cause 343 m Supreme court Harrison v. Nixon. is removed for review in an appellate court. And it has hitherto remained * 041 *eQuaHy well settled, that no decree will be reversed, even on a bill J of review, for any new-discovered evidence, unless in a case where a new trial would be awarded by a court at law. But if the decision now made, is to be hereafter considered as a precedent for the future action of this court on appeals in equity cases, it portends a fearful change in the rules which have heretofore drawn a line between the original and appellate jurisdiction of the courts of the United States, the consequences of which cannot be foreseen. The practical effect of this judgment and mandate is, an assumption of the province of the former, not only as to the rules of practice, pleadings, amendments, parties, proofs and issues, which depend mainly on the exercise of discretion ; but is giving to an appeal from a final decree, the effect of a special demurrer to a bill, an exception to an answer, as well as of an original, supplemental or bill of review, in all their respective operations on the case. This appellate court does not decide upon the case or decree appealed from, it orders an entirely new one to be made, by an utter prostration of everything in the record, from the original bill throughout. It does not remand this cause for a final decision by the circuit court; it first divests it of all the attributes and requisites of a case for a final decree, and then commands that a case shall be made up for their original jurisdiction, as a suit in equity, under positive directions, which leave no discretion in the exercise of their jurisdiction over the matters referred to in the mandate. The reasons assigned by the court for these proceedings are worthy of the most serious consideration. They decide, that an averment of domicil is indispensable, because it might indicate the intention to give the property to such person as would be the heir-at-law by the law of one country, who would not be the heir, by the law of the other, but adds, “ we do not say what is the case.” That the country by whose laws the will is to be interpreted, should be first ascertained, and then the inquiry is naturally presented, what the provisions of those laws are?’ They also direct an averment of the domicil, “at the time of the will being made,” “ at the testator’s death,” and “ in the intermediate time” (a period of thirty-three years) ; yet declare that they do not mean to express any opinion as to the effect on the will, of * , domicil being at a different place at these different times. *Whence -* then arises the necessity of the averments ? The natural order of inquiry would seem to be, whether there was any difference between the law of England and Pennsylvania, in the interpretation of the will; and next, whether the will should be construed by the law of the domicil at the death of the testator, or at any other time ; for the materiality of the averments depends entirely on the solution of these two questions. If the law of both countries was the same, at all times, the averments are useless. It is surely a strange ground for uprooting a cause from its foundation, by an appellate court, merely because the original bill does not contain an averment of a fact which, by possibility, may be material as the evidence of intention, or the existence of that fact, at a time when it could have no possible bearing on the will. When the new case now directed to be made up, shall have been decided by the circuit court, and come here again on appeal, it is to be presumed, that this court will then deign to inquire by what law this will must be 344 1833] OF THE UNITED STATES. 525 Harrison v. Nixon. interpreted, and what the provisions of that law are. It is also to be hoped, that by that time, they will feel prepared to instruct the circuit court of Pennsylvania, whether their next final decree shall be in conformity to the law of the testator’s domicil, when he made his will, when he died, or at what period of the thirty-three years which intervened, not omitting an explicit opinion upon the preliminary question, whether the domicil has any bearing on the will. As the mandate now is, that court is ordered to proceed “ as to law, equity and justice shall appertain,” but are uninstructed by what law or rule the justice or equity of the case is to be ascertained, other than the law which the testator has prescribed in his will. The predicament in which that court is now placed, is a most unpleasant one ; their past errors have been so gross and palpable, as to make their whole proceedings nullities ; yet they remain in the dark as to the means of correcting them ; the averment of domicil will lead to no new evidence or issue, not in the present record, and no new question of law or fact can arise in that respect. When a new case shall have been presented, it will differ from the present only in this one averment, which, by the admission of this court, cannot have the most remote effect on the decree, unless on the contingency *of a conflictu legum^ which is now as little ascertained as before this reversal. L If the action of this court had stopped here, the embarrassment of the circuit court would be sufficiently great, in being precluded from the exercise of all discretion in the proceedings, preparatory to a final decree, by the peremptory orders now given on all matters for their ultimate judgment; and as to that, left without any directions how to avoid the recurrence of the same errors which have caused great and expensive delay. There is, however, another ground assumed by this court, which is infinitely interesting to all persons whose rights may be affected by its appellate powers in equity cases, as well as to all inferior courts, on general principles ; but most emphatically to the judges of that court whose proceedings have been thus roughly handled in the opinion delivered. After the direction to make the averments, the court remark, “ it appears from the motions which have been made to this court, as well as from certain proceedings in the court below, which have been laid before us in support thereof, that there are certain claimants of this bequest, asserting themselves to be heirs-at-law, whose claims have not been adjudicated upon in the court below, on account of their having been presented at a late period.” “ As the cause must go back for further proceedings, and must be again opened for new allegations and proofs, these claimants will have an opportunity of presenting and proving their claims in the cause, and we are of opinion they ought to be let into the cause for this purpose.” The “ motion ” alluded to, was to revise the whole proceedings in the case, made by the counsel of persons who were not parties or privies in the original suit, or to the appeal; the “ certain proceedings in the court below ” were had, on a petition asking for leave to file a bill of review by those persons, for newly-discovered evidence, and to make themselves parties. Leave was refused, for the reasons given at length in the opinion delivered by the circuit court, some garbled extracts from which, the counsel who urged the objection taken to the want of the averment of domicil, not the counsel who made the “ motion ” referred to by the court, thought proper to read in the 345 526 SUPRÈME COURT Harrison v. Nixon. [Jan’y course of his argument. Had the whole opinion been read by the counsel or * court, had they seen the reasons of the refusal to permit *the bill of J review to be filed ; it would have been most apparent, not only that it was not because the petition “ was presented at too late a period,” but the circuit court expressly declared, that the petition was presented within due time after the final decree, had there been no other objections. The grounds of the objection to the petition were, that those claimants never asked to be admitted into the cause, till after the final decree, and the pendency of the suit in this court on the present appeal; that the circuit court could not reverse their final decree, in any other way, than by a bill of review for error apparent or new matter. That such bill lies only in favor of parties or privies to the final decree, in neither of which characters could those persons stand; that their case was not supported by the requisite affidavits; that the matter relied on was not new, or newly discovered, but had been relied on in bills in the courts of chancery and exchequer, in England, years before the petition for review, and by the same parties ; that even if new, it was not competent to procure a decree in their favor ; that with full knowledge of the state of the fund, and the pendency of this suit, they had been guilty of such gross and unaccountable negligence, that no court of equity could afford them any relief on a bill of review, and if they had any remedy, it must be sought in some other mode. The circuit court could not adjudicate on their claim, before it was presented for adjudication, and when so presented, they had no longer any power of adjudication over it, but on a bill to reverse the original decree by review for error apparent, or on an original bill which the petitioners had a right to file. The bill of review for new matter, is a matter of favor and discretion, which, in the case presented, they could not permit, without the utter disregard of the oldest and best-established rules of the law of equity; whereupon, the parties filed their original bill, on which there has not been time for any proceedings to be had. It is, therefore, a gratuitous assumption, that “ those claims were not adjudicated on in the court below,” “ on account of their having been presented at a late period ;” unless this court intended to refer to the gross delay of the parties before the final decree, and the settled principles of law which forbade that court from letting the claimants into the case, on a bill of review for the cause assigned. The judge $ , w^° gave *the opinion of the circuit court, feels bound to repel the -• imputation which would otherwise rest upon the “ certain proceedings in the court below ” as wholly erroneous, and unfounded on any other construction which may be given to that part of the opinion of this court containing the allusion to those proceedings. It is also his right and duty to inquire, by what rule of law, a court of mere appellate power over final decrees of a circuit court, assume appellate jurisdiction over a subject-matter not contained or referred to in the record of the cause before them on appeal ? By what power this court can review the proceedings of that court, on a petition for leave to file a bill of review to reverse their own decree, after an appeal, on new-discovered matter, which rests exclusively in their discretion as to granting or refusing it, and especially, after the parties had acquiesced in the decision and had adopted another remedy ? And above all, by what warrant this court can act on an appeal by the parties now before them, in favor of persons who are utter strangers to the record and 346 1335] OF THE UNITED STATES. 526 Harrison v. Nixon. suit, who, being neither parties or privies, can be heard only by an original bill, filed in a court of original equity jurisdiction ? The knowledge that these persons had desired and had been refused admission into the cause, not having been derived from the record, was wholly extra-judicial, and is so admitted by this court ; yet it is made the basis of judicial action, and its peremptory mandate to the court below to admit them as parties, and hear their proofs. Thus, indirectly and collaterally, but most effectually, reversing the refusal to permit them to file a bill of review, and giving them not only all the benefits which they could have desired from a bill of review actually filed, but of an actual reversal ; nay, much more substantial benefits. On the hearing of a bill of review, the plaintiffs are confined to the new matter set forth in their bill ; and this would have been the utmost extent of the relief which could have been given them, had they appealed to this court, obtained a reversal of the proceedings in the circuit court on then’ petition, and the case had been remanded, with directions to permit the bill of review to be filed, and its merits to be adjudicated. Whereas, they now come into the cause, as original parties, with the same liberty as to proof, as those who have been contending for years. They are likewise fully *absolved from every requisition and (*529 duty enjoined by the law of equity, as the indispensable conditions of their admission as parties to a suit, after a final decree, as well as from all the consequences of gross and long-continued negligence. All this has been done in their favor, without any appeal by them, but on information laid before this court, in support of a motion wThich they would not listen to, and on which they could not act directly, in virtue of their appellate power, consistently with the acknowledged doctrines of courts of equity, or the directions of the judiciary act, that is, an appeal by the party aggrieved by a final decree. In the present course, then, of this court, in relation to those persons who are no parties to this appeal, as also to those who are proper parties, it must be asked, what brings any decree or other proceedings of a circuit court in equity, within any power of this, if not an appeal ? what the act of reversal necessarily implies, if not jurisdiction of the case and its exercise ? or what is the nature of that jurisdiction, if it is not appellate ? and what respect is paid to the judiciary act, if this appellate jurisdiction is not exercised by re-examining thè record and proceeding, according to the directions of the law which confers the power, and is the only authority by which any proceeding of a circuit court can be reviewed, or its final decrees be reversed ? As the court has reversed and annulled every proceeding which has been had, directly or collaterally, in this suit ; whether it related to the rights of parties, privies or strangers to the record, to the subject-matters of appeal, or those which have come to their knowledge, without judicial information; inasmuch as their whole action has been on a summary motion to reverse, solely for the want of an averment in the bill, which the court most cautiously avoid deciding to be material to the merits of the cause, otherwise than in the event of an unascertained and possible conflict of laws, not asserted to exist, and wholly refuse to decide any one matter put in issue by the parties, as to either law or fact, the mandate of reversal must be referred to some other than their appellate power, as granted by the constitution, defined, limited and regulated by congress ; for it cannot be pretended to be 347 529 SUPREME COVET [Jan5y Harrison v. Nixon. within the legitimate scope of any construction -which can be given to the $ , words “appellate jurisdiction,” which necessarily requires *re-exami- -* nation of what had been before adjudicated in the court below. If the jurisdiction now exercised is original, it is only necessary to refer to the decision of this court in Marbury v. Madison, to pronounce it unconstitutional. Be it, however, appellate or original, it is incompatible with the organic laws of this court, with the principles and usages of law in those appellate tribunals from which we have adopted our rules, and can have no sanction from precedent, unless by some silent unadjudicated practice, which may have crept into our proceedings, without a due consideration, and which has been often decided, is not binding as authority, and is never too late to correct, when its errors are discovered. 8 Wheat. 321—2. There is no power so dangerous as that which can be traced to no definite or authoritative source, or which is exercised without a reference to some fixed principles ; it is in the nature of that which is assumed by any department of government, to be capable of no other limitation than such as it may choose to prescribe to itself; while that which is conferred by the constitution or statutes, is defined, limited and regulated in its exercise to the cases specified, and in the mode prescribed. Such are the appellate powers of the circuit and supreme courts of the United States ; they are of limited jurisdiction—necessarily incompetent to act by any prerogative or inherent power ; as the creatures of the judiciary act, they are not at liberty to exercise any power over the proceedings of inferior courts, by any general supervisory power, such as has been assumed by the king’s bench and house of lords. Their supervision is only by writ of error or appeal, and such writs as congress have authorized them to use; so that in whatever case they act as an appellate court, it is by special authority, and can exercise no other than what is appropriately appellate, as contradistinguished from original jurisdiction. In the present case, there seems to be a mixture and excess of both, whether the mandate and opinion are tested by the rules of other courts of appeal, or the acts of congress. The house of lords act as an appellate court, by their own authority, without an act of parliament, but have never assumed any original jurisdiction on appeals in equity causes, nor reversed the decree of a chancellor, because an issue before him will not enable the lords to make a satisfactory decree; they remand the cause for amendment (1 Bligh P. C. [N. S.] * 1 *471, 477); or give the party leave to withdraw his appeal (2 J Bligh P. C. 392 ; s. p. 12 Wheat. 12). Such a course would have been peculiarly proper in this case ; the only irregularity complained of on this motion, was by the appellants’ own fault, in not making an averment in their own petition, which is admitted were amendable, and is so decided by the court; and it cannot be denied, that it was competent to them to remand the cause for this purpose (12 Wheat. 12), or permit the appellants to withdraw their appeal, to enable them to amend their own petitions, if the court deemed it indispensable to make a final decree on its merits. But it is most confidently asserted, to be against all rules, and without precedent, to reverse a decree and declare all previous proceedings void for such a cause; no court of original jurisdiction in equity, can annul its own decrees, without a bill of review, eVen for error apparent; this has been the law from the time of Lord Bacon. This court has no power to revise 348 1835] OF THE UNITED STATES. Harrison v. Nixon. 531 its own decrees after the term expires, unless for clerical errors ; it can exercise no original jurisdiction in this case ; and that which has been exercised is not appellate, by any rules which define what appellate power is, and its lawful course. So far from adjudicating any one matter appealed from, or point of law or fact presented by counsel, they have left every right and claim of the parties wholly unnoticed ; and though they have annulled every proceeding of the circuit court, have not adjudged any one order, or their final decree, to be erroneous in law or fact; but have done it for the ostensible purpose of inserting in the bill and petitions, an averment of a fact, which would have been directed, of course, in the circuit court, on suggestions of either party ; and solely to meet a contingent question of local law, which that court, in their solemn opinion, declared could not arise in the cause, and which the counsel on both sides agreed did not exist, and would not be raised. There is only one rule by which such a proceeding can be held to be the legitimate exercise of appellate power, “sic volo, siojubeo, stat pro ratione voluntas ; ” the opinion of the court precludes any other conclusion ; for if they had appellate jurisdiction, they were bound to give the record appellate inspection and consideration ; not having done so, their opinion *and mandate is their judgment, that there was no case before them for L their appellate action. This presents another view of this case, which is alarming as a precedent. This court has no more power to declare and consider the proceedings of a circuit court null and void, than a district, circuit, or state court has, unless they are before them by an appeal, according to the act of congress ; excepting such a case, the powers of all these courts are equal. All are bound to respect a judgment until appealed from, however erroneous ; while any one may disregard it, even as prim a facie evidence of any fact professed to be adjudicated, if the judgment is void. If the course of this court is consistent with the rules of law, then the final decree of the circuit court would be as much a nullity, after the expiration of the five years limited for an appeal, as it is now ; and if a nullity in this court, it must be so in every other. If the want of an averment of testator’s domicil, in a bill of equity, nullifies all subsequent proceedings against an executor for an account, there are many void decrees on the records of this court, which state courts may declare so, by the same power with which this court has acted in this case. This rule of action must be taken to be, that the bill must contain direct averments to meet every possible contingency which may arise in the proofs, as to questions of fact or law ; that it is not sufficient to aver a fact, from which the necessary conclusions may be drawn, though the parties have taken issue upon it in both courts, and thus admitted, that there was a proper case for the exercise of their respective jurisdiction. The mandate admits of no other conclusion, than that the action of the circuit court, on a hill or petitions like the present, is wholly without legitimate power or jurisdiction, and their whole proceedings “coram nonjudice f1 if so, it follows, that their decree is not a judicial act, entitled to the least respect in any court. If this court can declare it void, without appellate re-examination, it is, because it is an extra-judicial act; and surely no one can contend, that the extra-judicial proceedings of this court are entitled to any more respect. As if they should award a mandamus to a secretary of state, reverse the judg- 349 532 SUPREME COURT [Jan’y Harrison v. Nixon. ment of a state court in a case not within the 25th section of the judiciary * act, or take cognisance of an *original bill in equity between indi-J viduals. Let it once become a settled rule, that the want of an averment like the present, is fatal to jurisdiction, the proceedings of no court can stand the test of a scrutiny so severe as has been applied to these. With the precedent now established, the judges of state courts will look with microscopic eyes at our records, as well as those from other states, and be sure to find, at least to their own satisfaction, some defect which might have been fatal on special demurrer or abatement, and in their turn declare our decrees and judgments void, by the same summary power. Nor will the consequences stop here; the federal courts will exercise the same power over the judgments of state courts, without appeal or writ of error ; their proceedings, in cases not within their judicial cognisance, are as much nullities as those of a circuit court, and may be declared void by this court, on the same rule as is now adopted. Let the directions of the judiciary act be nullified, by following up this precedent, the appellate power of this court becomes absolute, arbitrary and illimitable; and all other courts may be justified in following the high example. There is yet another view which must be taken of the judgment now rendered. The court has ordered the averment of domicil to be made at the death of the testator in 1824, at the making the will in 1791, “and in the intermediate period (if there was any change), so that the elements of a full decision may be finally brought before the court.” Each averment being then considered as equally indispensable, it must be deemed, that the omission of either is equally fatal to the proceedings of the circuit court; each must, therefore, be considered as having a vital bearing on the construction of the will, or there would not have been a positive order to insert them. Such an order may, indeed, afford “ the elements of decision,” but must protract it till many of the parties to the suit shall have passed away. When the fact of residence, at different times during thirty-three years, shall have been ascertained in the circuit court, they must then decide in what place the law adjudges the domicil to have been at the time of each change of residence ; then arises the question, by what law the will is to be interpreted. As the case of Robinson's Administrator v. The Rank is now overruled, the law of the situs of the *property of administration or making the will, J which is Philadelphia, is not to be regarded, the law of the domicil must govern ; but the court are left in utter darkness as to the rule by which to apply that law, should the domicil appear to have been in different places at different times. As the circuit court has hitherto been so unfortunate as to have been ignorant of the effect of the domicil, in relation to a will of personal property, and as one of the judges has the misfortune to dissent again on the subject, it is much to be feared that, as there may have been, possibly, three or more places of domicil in so long a period, at least one, if not more, final decrees may be reversed, because the proper one may not have been designated in their opinion. Hitherto, the law of the domicil at the death of the testator, has been deemed the rule ; but this point must now be considered as unsettled, or the court would not have directed its averment at any other time, as indispensable to a full decision of the cause; as it remains for this court, at some future period, to declare the law on points so doubtful, great delay 350 1835] OF THE UNITED STATES. Harrison v. Nixon. 534 must necessarily take place, before it can be known by what law the will must be construed ; next, what the provisions of that law are ; and lastly, what ought to have been the first inquiry—whether the domicil of the testator is, or, in any possible event, can be, in any way, a material question in the cause. Before the decision of this case, it was considered to be a settled principle, that a final decree in chancery was of equal effect as a judgment at law, until reversed. 6 Wheat. 113. That the sufficiency of an averment in a declaration, bill or petition, was a question of merits, examinable on demurrer, at the hearing, on a motion in arrest of judgment, or by writ of error or appeal; but in no case was a question of jurisdiction, unless for the want of parties, or a proper cause of action. That if there was a substantial cause of action alleged, all defects in the pleadings were cured by a verdict of decree, if not pleaded or demurred to for cause ; and that no appellate court could reverse a final judgment or decree, for any error in either, on the ground of an insufficient averment, if the plaintiff’s case was one that would entitle him to a judgment on a general demurrer. So the law was taken by the counsel for the appellants themselves, and so it would have remained, had not the court *prevented them from arguing the points in their printed brief, and, yielding to the suggestion of one of L the judges, decided, that they would examine no question in the record, nor hear any argument on any point except one, which was not stated at the bar in either court, and may have no bearing on the rights of any party. This is another innovation upon the settled, uniform course of all appellate courts, which makes this precedent an alarming one. It is an established rule, founded on the soundest principle of justice, that a party shall not be permitted to reverse a judgment or decree, on an objection not made in the court below. Upon an objection being made in the house of lords, that an account had not been taken in the court of chancery, and it appearing that none had been called for previously, by the party making the objection, Lord Eldon observed, “ If this cause had been heard in the court of chancery or exchequer in England, no client could have induced a counsel to make that a point, at the bar of this house, under such circumstances; because such counsel, having been previously conversant with the cause, would have known that as it was not made below, it could not be made by way of appeal. Had this cause been heard before me, and had I presided during the argument of the appeal against it, under the circumstances that have occurred, I would not have allowed counsel to make the point at your lordship’s bar.” 2 Sch. & Lef. 712, 710, 718. When the opportunity of objection is passed by in the court below, it is taken to have been waived (Ibid. 713 ; 12 Wheat. 18; s. p. 11 Ibid. 209-11 ; 7 Pet. 98 ; 2 Binn.168 ; 12 Serg. & Rawle 103); unless the defect in the record is one which could not have been cured, or amended in the court below, if the objection had been made before it was removed. 4 Johns. 602 ; 14 Ibid. 560; 16 Ibid. 353 ; 18 Ibid. 558-9 ; 2 Dow P. C. 72. The names and judicial reputation of the American jurists, who have ever acted on this rule, and of Lords Eldon and Redesdale, may, with propriety, be referred to, and invoked in support of a dissenting judge ; and the rules and decisions of this court, till this time, may also be called to his aid. Had the present appellants demurred to the bill, objected in the plead- 351 *536 ‘ SUPREME COURT ‘ ' [Jan»y Harrison v. Nixon. ings, or at the hearing, on the ground now taken, *the defect, if any, would have been cured in the court below, by an amendment, without affecting the proceedings ; but here, it would seem, that there can be no amendment ordered, without annulling everything heretofore done in the cause. If it was so intended by the appellants, they have delayed this objection most profitably, for the purposes of vexation; it has been received under circumstances which would have prevented it being listened to in any other appellate court, but which have entitled it to favor here. It is not made by the respondent, whom alone it concerned to reverse erroneous proceedings by the appellants, who were complainants against him; if he chooses to waive defects in their petition, they could not be injured thereby ; they did not ask for an amendment in theirs, or the petition of the party who obtained a decree in his favor. The appellants asked a reversal and a decree in their favor ; they have obtained a reversal indeed, but it is of every step they have taken to submit their rights to the final adjudication of this court; the cause is open to indefinite litigation, by each of the three hundred claimants to the fund in the hands of the executor, as well as those now ordered to be added to the suit, who may be not the least troublesome, at least, to the appellants. A principle, too, has been established, by which each claimant is permitted, during the five years allowed for appeal, after a final decree, to reserve his objection to the pleadings, till a convenient time, and then obtain reversals on a summary motion, for defects that are amendable on application in the discretion of the circuit court, by the general rules of courts of equity and law, and by right, under the provisions of the judiciary act. There can be no course so utterly subversive of equity, nay of common justice, as to hear parties in an appellate court, on points made under circumstances like the present; it is one to which I can never consent, and against which I shall deem it a duty to suitors to protest, on all similar occasions. I will never, while sitting in this court, reverse a decree upon objections which a court of chancery or exchequer, on a cause regularly before them, would not, in the exercise of their original jurisdiction ; or the house of lords, or court of errors and appeals in New York, would not permit counsel to argue on appeal. Nor will I, in any way, admit, that any appel-* late *court can, in the legitimate exercise of their jurisdiction, render J a judgment of reversal, on any ground, on which they would not be bound to hear an argument of counsel. It is a great hardship on parties, to have their judgments set aside, on technical objections raised at the bar; but the grievance will become intolerable, if the court should be such as to do it, when they are first suggested from the bench. Let an objection like the present, however, come whence it may, I consider it as purely technical, which I cannot, sustain consistently with the respect due to the solemn and unanimous decisions of this court, in Harding v. Handy, and Renner v. Bank of Columbia, with many others founded on the most immutable maxims of the law. They settle the rule, that the conclusion of fact drawn from a circumstantial averment, is sufficient to support a decree in equity, and forbid me from disregarding the evidence which has been admitted without objection, and now forms part of the record before me for judicial inspection, merely because the subject-matter of that evidence was not averred in the bill or petitions of the claimants. 1835] OF THE UNITED STATES. Harrison v. Nixon. 537 And when, to this high and unquestioned authority, is added the 32d rule of this court, I find safe rules for my guide, which would be violated by any sanction given to any proceeding in opposition thereto. That rule is, “ in all cases in equity, &c., no objection shall hereafter be allowed to the admissibility of any deposition, deed, grant or other exhibit, found in the record as evidence, unless objection was taken in the court below, and entered of record, but the same shall otherwise be deemed to have been admitted by consent.” I feel bound to examine all the evidence in this record, as it is found, without an objection ; and as counsel and parties are precluded from now making any, it is my duty to give it its full effect on the question of domicil, as well as any other which may be relevant to the cause ; any other course would, in my opinion, annul this rule, which counsel must respect, and which I had thought the court would adhere to, by hearing an argument on a point arising on the evidence, made by the counsel of the appellants in the brief presented for our judicial action. The order for the admission of new parties deserves some notice, on account of the manner in which it was made, which *is believed to to be unprecedented. Their names were not in the record, they were >-in no way before the court, but had employed counsel, who were desirous of being heard as amici curiae, in order to point out some irregularities which, as they conceived, would authorize the reversal of the decree, so as to permit them to make an application to become parties ; stating, at the same time, that the circuit court had very properly refused such application by a bill of review. This court promptly and unanimously refused to hear • them in support of their motion, yet have granted what they would not permit to be moved for by the counsel of the new parties, and of course, without motion ; for the counsel of the appellants who signed the brief as representing three individuals and others, on being called on by the counsel for the appellees, in open court, to state for whom they appeared, declined an answer. In the circuit court, it may not be within the line of duty to inquire, by what authority, and on whose application, these parties have been ordered to be admitted as litigants in the cause ; so far as respects one of the judges, he will obey the mandate. But in this court, he may, and does, make the inquiry, respectfully, but as a matter of right, and fearlessly insists, that it has been done in violation of the best-established principles of the law of appellate courts. As the court would not hear the motion of the counsel of these parties, they could not be judicially informed, that they desired admission into the cause ; dfortiori, they could not judicially decide, whether their case was one which gave them a right to admission. Theii judgment and mandate have, therefore, been given on extra-judicial knowledge, such as no appellate court can receive or act upon, as it was wholly dehors the record, and related to no party to the appeal, nor anything appealed from. In issuing their, order, founded on such knowledge as they chose to receive, the court must have taken a very partial view of the papers presented to them fortheir collateral inspection; had they been judicially examined, or their contents known, it would have been apparent, that the case deserved some deliberation at least. By their own admission, these parties ad full knowledge, that the fund they claimed, was in the hands of the executor in Pennsylvania, yet their first application to be admitted as par-9 Pet.—23 353 *539 SUPREME COURT [Jan’y Harrison v. Nixon. ties to this suit, was ten years after the death of *the testator, and nearly six months after the final decree. That after the failure of their petition for a bill of review, they had filed their original bill in the circuit court, having previously applied to the orphans’ court of Philadelphia county (which is a court of equity and of record, before whom the administration account was in a course of settlement), for an order of distribution in their favor. This court also knew judicially, for it appeared in the answer of the executor in this case, that he had interpleaded and prayed the protection of the court ; for which purpose they had made an order (also in the record) that all claimants of the fund who did not appear by a given day and present their claims, should be barred thereaftei’; which order was sanctioned by the practice and rules of all courts of equity. These parties suffered the time to elapse, long before they thought proper to make any claim, without in any way denying notice of the pendency of the .suit, or accounting for their delay in applying to become parties before the final decree. If any court could be justified in admitting them, afterwards, in a case circumstanced like this, it most assuredly could be only by the exercise of original jurisdiction, by bill of review, and not by any appellate power over this record ; these parties were not and could not be appellants from a final decree to which they were not party or privy ; nor could this court lawfully reverse the decree on new matter, or for any cause appropriate to a bill of review. As to these persons, there was no case in this court; it could have no appellate jurisdiction to hear and determine on anything; and the proceeding was wholly coram non Judice, unless it could exercise original jurisdiction over the parties and the subject-matter, as a case originating in this court. Thus considered, I feel it a duty to declare, that the mandate to the circuit court, ordering these persons to be made parties, is without any authority of principle or precedent, and although I shall obey it in that court, as the command of a court of the last resort, yet, in my best judgment, feel constrained to pronounce it inconsistent with the best established rules and usages of law, and a violation of the constitution of an appellate court. * . .. *This cause came on to be heard, on the transcript of the record J from the circuit court of the United States for the district of Pennsylvania, and was argued by counsel: On consideration whereof, it is ordered, adjudged and decreed, that the decree of the said circuit court in the premises be and hereby is reversed and annulled, and that the cause be remanded to the said circuit court for further proceedings ; with directions to the said court to allow the bill and the petitions of the claimants to be amended, and the answers and pleadings also to be amended to conform thereto, and proofs to the new matter also to be taken; and with further directions to allow any other person or persons, not now parties to the proceedings, who shall claim title to the funds in controversy as heir or heirs-at-law or representatives of the testator, to present their claims respectively before the said court, and to make due proofs thereof, and to become parties to the proceedings, for the due establishment and adjudication thereof. But the proofs already taken in the cause are to be deemed admissible evidence in regard to all such persons, not now parties, who shall claim title as 354 1835] OF THE UNITED STATES. 540 Chesapeake and Ohio Canal Co. v. Knapp. aforesaid, and become parties in the cause under this order ; and such other proceedings are to be had in the said cause by the said court, as to law, equity and justice shall appertain.1 *The Chesapeake' and Ohio Canal Company, Plaintiffs in error, [*541 v. Abraham Knapp and others. Assumpsit.—Bill of particulars. An action of indebitatus assumpsit was instituted to recover a large sum of money, alleged to be due for the construction of certain locks, &c., on the Chesapeake and Ohio canal; the defendants pleaded the general issue, and called on the plaintiffs for a bill of particulars; the item of claim upon which the jury gave a verdict for the plaintiffs, was stated in the bill of particulars to be, “ detention and damage sustained for want of cement on locks No. 5 and 6.” There is no doubt, that a bill of particulars should be so specific as to inform the defendant, substantially, on what the plaintiff’s action is founded; this is the object of the bill, and if it fall short of this, its tendency must be to mislead the defendant rather than to enlighten him, As the bill of particulars is filed before the trial, it is always in the power of the defendant to object to its want of precision, and the court will require it to be amended, before the commencement of the trial; and if this be not the only mode of taking advantage of any defect in the bill, it is certainly the most convenient for the parties.2 Although this bill of particulars does not specify, technically and fully, the grounds on which the plaintiffs claim damages, it sufficiently expresses to the defendants that the claim arises for want of cement on locks No. 5 and 6. The ancient doctrine, that a corporation can act, in matters of contract, only under its seal, has been departed from by modern decisions; and it is now considered, that the agents of a corporation may, in many cases, bind it and subject it to an action of assumpsit. There can be no doubt, that when a special contract remains open, the plaintiff’s remedy is on the contract; and he must set it forth specially in his declaration; but if the contract has been put an end to, the action for money had and received lies to recover any payment that has been made under it. It is a well-settled principle, that where a special contract has been performed, a plaintiff may recover on the general counts. The court ought not to instruct, and, indeed, cannot instruct, on the sufficiency of evidence; but no instruction to the jury should be given, except upon evidence in the case. Where there is evidence on a point, the court may be called upon to instruct the jury on the law, but it is for them to determine on the effect of evidence. Error to the Circuit Court of the District of Columbia, and county of Washington. This was an action of assumpsit, instituted originally in the county court of Montgomery county, in the state of Maryland ; and by For the further proceedings in this case, which was finally decided by a divided court, on the question of domicil, see Packers. Nixon, 10 Pet. 408 ; Aspden v. Nixon, 4 How. 467; White v. Brown, 1 Wall. Jr. C. C. 217 ; Brown Aspden, 10 How. 25 ; and Aspden’s Estate, 2 Wall. Jr. 0. C. 368,451-2. Bills of particulars may be ordered in all cases; an application therefor is the appropriate proceeding, where a party seeks to be apprised of the particulars, or circumstances of time and place, set forth in his opponent’s plead-mg. People v. Nolan, 10 Abb. N. C. 471. It may be ordered, in a criminal case, where the indictment fails to give notice to the defendant of the specific matters intended to be proved against him. Williams v. Commonwealth, 91 Penn. St. 493. It must be sufficiently full to disclose the gist of the plaintiffs demand. Gilpin v. Howell, 5 Id. 41. It is not, however, the office of a bill of particulars to state the grounds upon which the plaintiff claims to recover, but merely to identify the items embraced in his claim. Seaman v. Low, 4 Bosw. 337. Its office is merely to limit the generality of the complaint, and prevent a surprise on the trial, not to furnish evidence. Drake v. Thayer, 5 Rob. 694; Fullerton v. Gaylord, 7 Id. 551. 855 541 SUPREME COURT [Jan’y Chesapeake and Ohio Canal Co. v. Knapp, agreement of the parties, transferred, with all the pleadings, depositions and * 1 other proceedings therein, to the circuit *court of the United States J for the county of Washington, in the district of Columbia. The declaration contained nine counts : the first, second and third, for goods sold and delivered ; the fourth, fifth, eighth and ninth, for work, labor and services, and for materials furnished, &c.; the sixth, for money paid, laid out and expended, and for money had and received for the use of the plaintiffs ; and the seventh, an insimul computassent. The defendants pleaded non assumpsit, and issue was joined thereon. A rule having been entered on the plaintiffs to file a bill of particulars, the same was duly filed, setting forth all the items of claim against the defendants. The plaintiffs in the circuit court had, on the 4th day of May 1829, entered into articles of agreement with the Chesapeake and Ohio Canal Company, to execute certain sections of the canal, then being made by the company, according to certain specifications before agreed upon by the parties. Under this agreement, the plaintiffs constructed eight locks on the canal, and this action was brought for the value of the work done, and materials expended on the same, and for other matters which had arisen under the agreement. The only item in the bill of particulars which was deemed material, and which came under examination and discussion by the counsel and the court, in the argument and decision of the cause, was the following : “ To detention for want of cement, at propel’ times, at locks No. 8, 15, 16, 17, 18 and 20 ; damages sustained in consequence of such detention, $600.” The defendants in error read in evidence the specification for lock No. 6, and their offer to contract for the construction of the said lock, on the terms therein stated ; and also a paper containing their proposal to execute the said lock, according to the plan and the specification ; and they proved, that the proposals were accepted. They also read the agreement between them and the canal company, dated the 4th of May 1828, for the construction of the work pursuant thereto : and also like specifications and proposals, and their acceptance by the parties, for the execution of the other eight locks, and the contract for the same ; the execution of the work to be done by them under the said contract, being also proved. The specifications particularly described the work to be done, the *materials to be used, and the manner and time of its execution. In the specifications, there was inserted the following : “ It is believed, that hydraulic cement, suitable for the construction of lock masonry, may be obtained on the Potomac, as far east as Shepherdstown. Its average cost, it is presumed, will not exceed forty cents the bushel, delivered at the shore opposite the locks ; should it be found not suitable for the purpose, and it become necessary to import the New York hydraulic cement, or Parker’s Roman cement, the president and directors will furnish to the contractor cement so imported, in good season, say, by the 1st of May 1829, at the price of forty cents the bushel, which shall be deducted from the sum to be paid for the lock, if the contractor furnished the cement himself. The extent of its use, if it be so applied, may be limited by the engineer to a certain distance from the face of the wall. The proposals stated the price at which the work was to be done ; and the agreement set forth stipulations for the performance of the work, and 356 1835] OF THE UNITED STATES. 543 Chesapeake and Ohio Canal Co. v. Knapp. the sums to be paid for the same ; with other matters to secure and define the obligations of the parties thereto. The plaintiffs also offered, and read in evidence, the following resolution of the president and directors of the canal company, passed the 2d day of September 1829 : “ Ordered, that the board will furnish water lime to such contractors for masonry as shall provide houses to receive it, to be delivered at the river shore, opposite to their works, at forty cents per bushel.” And also the following resolution of the said president and directors, passed the 20th of January 1830. “ Resolved, that although this board has stipulated to supply the contractors with water lime, yet the board will not be held responsible for any .damage arising from the want of that article.” And also the answer of Theophilus Williams, to an interrogatory on the part of the plaintiffs. “ To the thirty-second annexed interrogatory, this deponent replies, that the plaintiffs were very greatly hindered in their operations, by the want of cement. This deponent has no written memoranda of the time which the plaintiffs were so hindered, but believes that the time lost by the failure of the *defendants to furnish cement, was not less .. than one-third of the whole time from the 1st of April to the 1st of L August 1830 ; and this deponent can further state, that the opinion of the late resident engineer, Daniel Van Slyke, Esq., agreed with that of this deponent above stated, as to the proportion of the time lost by the plaintiffs for want of cement. Orders were given to the plaintiffs not to discharge their men, when idle for want of cement, but to retain them all, under pay, until a supply could be procured. This order had not reference to any one particular time when the plaintiffs were hindered for want of cement. The deponent was directed by the resident engineer to communicate the order to the plaintiffs, and did accordingly communicate it to them. This was the usual course of transmitting orders to the contractors for the different works on the Chesapeake and Ohio canal. This deponent received the same order, at several different times, from the president of the company. It was reiterated to the plaintiffs, at various times, and was, as this deponent believes, strictly complied with by them. This order, as well as that referred to in the answer to the twentieth, was, according to this deponent’s recollection, verbally given. This deponent cannot state with accuracy, to what extent the plaintiffs were delayed for want of cement, previous to the 1st of April, but thinks there was some considerable, for want of cement, before that time. From what this deponent recollects of the number of men and teams employed by the plaintiffs, and the high wages paid to laborers generally, and more particularly to mechanics, and the expense of subsisting men and teams, this deponent is fully convinced that, including the wages of laborers and mechanics, the subsistence of men and teams, and the wear and tear of tools, the expense of the plaintiffs must have averaged, while hindered for want of cement, from one hundred and fifty to one hundred and seventy-five dollars a day. The deponent cannot say with exactness, what number of days the plaintiffs were compelled to suspend their operations for want of cement, but thinks the whole detention may have been equal to from thirty to forty entire days.” And also the answer of Milo Winchel, to an interrogatory on the part the plaintiffs. “ To the ninth interrogatory, this deponent, answering, says, that the defendants delivered the cement very irregularly, in small 357 *545 SUPREME COURT [Jan’y Chesapeake and Ohio Canal Co. v. Knapp. quantities, which caused very great hindrance and loss *of time, and expense to these plaintiffs, by keeping a very large force of mechanics, common laborers, and teams, lying idle, and upon expense of wages and board, whilst waiting for cement; the precise loss and damage incurred deponent‘cannot state, but, from his best recollection, would say, that the loss of time thus incurred, from the 1st of March 1830, until the completion of the said locks in August, therefrom, could not be less than forty days, at an expense to these plaintiffs of from one hundred and sixty dollars to one hundred and seventy dollars per day; besides, the damage was very serious by delaying the work until the sickly months of July and August, which was the cause of a great advance in all kinds of labor, to induce laborers to remain upon the line of the canal at this season of the year ; all this expense and risk might have been saved to these plaintiffs, had the cement been furnished as agreed on the part of the defendants, which would have enabled the plaintiffs to have completed the whole of their work early in June 1830.” And also the answer of Henry Smith, to an interrogatory on the part of the plaintiffs. “ To the eleventh interrogatory this deponent will answer, that much delay was occasioned to the plaintiffs by the non-delivery of cement, in quantities to meet their demands; the consequence was, they were compelled to keep their hands, under pay, without labor, and deferring the completion of their work until the more sickly season, when labor, if procured at all, was obtained at an advance from twenty to thirty-three per cent. It is believed by this deponent, that if sufficient quantities had been delivered in season, that the locks would have been completed by the 4th of July. That, at the time locks Nos. 3 8 and 20 were in progress, the plaintiffs often complained of a scarcity of cement, and one particular time they were lying idle for a number of days, with a large force of hands, and, as deponent understood at the time, they were all under pay from the plaintiffs. The number of days alluded to above is believed to be two weeks or more; and many other times deponent knows of there being a want of cement, but the aggregate cannot be positively stated.” And also the answer of Moses Randal, to an interrogatory on the part of the plaintiffs. “To the eighth interrogatory hereunto annexed, this * . , *deponent, answering, says, that these plaintiffs were greatly hindered J and delayed, nearly the whole time they were employed in building these locks, by the irregular manner in which the cement was delivered, and that the amount of such hindrance upon locks Nos. 15, 16, 17, 18 and 20, from the 1st of March 1830, till their completion in August following, was not less than forty entire days, at an expense to these plaintiffs of one hundred and seventy dollars per day. There were eighteen days at one time, in which the plaintiffs received but two small loads of cement for the use of two hundred men, being insufficient to supply them one day ; besides, the damage was very serious by protracting the work until the sickly months of July and August, which was the cause of a great advance in all kinds of labor, to induce the laborers to remain upon the line of the canal at this season of the year. All this risk might have been saved to these plaintiffs, had the cement been furnished as promised on the part of the defendants, which would have enabled the plaintiffs to have completed their whole woi early in June 1830; and deponent further says, that the plaintiffs suffere 358 1835^ OF THE UNITED STATES. 546 Chesapeake and Ohio Canal Co. v. Knapp. greas hindrance and loss by the interference of the work under Messrs. Bargy & Guy, on section 18, by the breaking of the face-stone, by coming in contact with their carts and wagons, and by the men being driven from their work many times in a day to escape the dangers from the heavy rock blasting upon said section ; the damage done to the plaintiffs during this interference, deponent cannot precisely state, but knows it was great. This deponent recollects that, in one instance, on lock 18, a large rock was thrown against the wing wall of the lock, and so deranged several courses of their work as to require relaying ; in several other instances, the work of the plaintiffs on locks 17 and 18, was deranged by the falling stones breaking and displacing the cut stones in the wall. The plaintiffs remonstrated against these injuries, and threatened to abandon the work, in consequence of which, Daniel Van Slyke, the agent of the defendants, agreed to indemnify them against all damages arising from this source.” And also the answers of Benjamin Wright, to interrogatories put to him by the plaintiffs. “ To the ninth interrogatory, he saith, that he knows, that in many cases, the cement was very bad ; in others, the same was damaged, by having been allowed to get wet, before *delivery to the plaintiffs. r4. That it was furnished by the defendants in small quantities, and in a *-very irregular manner; and in many cases, not furnished at the times agreed upon between the plaintiffs and defendants ; it being expressly understood between the plaintiffs and defendants, that the cement should, at all times, be furnished as it was required for the prosecution of the work. To the tenth interrogatory, he saith, that he knows the plaintiffs were put to serious loss and damage, in consequence of the failure of the defendants in supplying cement, as stated in the last interrogatory, the said plaintiffs being obliged to keep their laborers and mechanics in pay, when they were actually unemployed, said plaintiffs being in the daily expectation of receiving the said cement; which state of things continued, in some instances, for a week together, and at others for two, four and six days; and deponent further knows, that, in consequence of such failure on the part of the defendants to furnish the cement, at the periods agreed upon, the work of the plaintiffs was necessarily protracted to the sickly part of the season, which necessarily caused a great increase in the wages of the mechanics and laborers, to induce them to remain during the said period. Deponent further saith, that -he knows that the president of the company, on many occasions, directed the plaintiffs not to dismiss theii* men, stating, from time to time, that he would have cement furnished, which, in many cases, was not furnished in compliance with his assurances ; but deponent cannot say, what was the actual loss incurred by the plaintiffs, although, as above stated, he believes it to have been very serious.” Upon which testimony, the plaintiffs prayed the court to instruct the jury, and they did, on the said prayer, instruct the jury, that if the jury believed, from the said evidence, that the defendants had, on the 2d day of September 1829, and from that time until the 20th day of January 1830, contracted with the plaintiffs to furnish them with cement, &c., in due time, &c., and that the plaintiffs, expecting that sufficient supplies of cement to go on with the work would be furnished by the defendants, as defendants had so engaged to do, hired a large number of hands, and brought them to the locks, and when the defendants had so failed to furnish the cement, kept 359 *548 SUPREME COURT [Jan’y Chesapeake and Ohio Canal Co. v. Knapp. the same hands idle, waiting for cement, on the defendants’ *desire that they should do so, in order to be ready to go on with the work, and paid them their wages while so waiting ; then the plaintiffs were entitled, under the count for money laid out and expended, contained in this declaration, to recover the money so paid to said hands, during such periods. But that the plaintiffs were not entitled to recover for wages paid to their workmen on account of a deficiency of cement, after the said 20th day of January 1830, unless the jury should be satisfied by the said evidence, that the said resolution of the board of directors, of the 20th of January 1830, was rescinded by the said board, and a new contract entered into thereafter by the defendants, to furnish cement to the plaintiffs, and the subsequent failure on their part so to furnish it, and an agreement also to pay for the wages of the plaintiffs’ workmen, while so waiting, and so forth. The defendants excepted to this instruction. The jury found a verdict for the plaintiffs of $20,707.56 ; on which judgment was entered by the court; and the defendants prosecuted this writ of error. The case was argued by Coxe and Southard, for the plaintiffs in error ; and by Key and Webster, for the defendants. The counsel for the plaintiffs in error contended, that the court -erred in giving the instruction : 1. Because there was no notice or intimation given by the plaintiffs to the defendants, in their bill of particulars, of charge against the defendants for money laid out or expended, in the payment of wages to workmen, while kept idle waiting for cement. 2. Because the court, in the said instruction, has adjudged on a matter of fact, and told the jury, that the defendants had engaged or contracted to deliver cement at certain times and prices, and had failed to furnish the said cement; which said facts ought to have been left to the jury upon the evidence. 3. Because, admitting the existence of such a contract, and the failure to comply therewith on the part of the defendants ; the payment of wages by the plaintiffs to their workmen while idle, waiting for cement, and the loss thereby could only be *recovered in a distinct action by the plaintiffs -* against the defendants, for the breach of such contract. 4. Because the court, in the said instruction, has submitted the fact of an agreement on the part of the defendants, to pay for the wages of the plaintiffs’ workmen, while so waiting and idle ; without any evidence of such an agreement being proved or offered to be proved. Coxe, for the plaintiffs in error, stated, that the amount of the sum originally claimed by the plaintiffs in the circuit court, was $141,000 and upwards ; and most of the items in their claim were rejected ; so that the demand was reduced to comparatively an inconsiderable sum It was upon the instructions of the court, which are for examination here, that the recovery was had by the verdict of the jury. There was a contract m writing between the parties, and the evidence proved a full performance of every part of it, in every particular, by the plaintiffs in error. There were some defects in the work, and in the manner of its performance, which operated very extensively on the claims of the defendants in error. Some modifications were made in the agreement of the parties ; some extra work 360 1835] OF THE UNITED STATES. 549 Chesapeake and Ohio Canal Co. v. Knapp. was done, for which claims, opposed by the canal company, were made; and these were rejected. The instruction, now under consideration, which was excepted to by the plaintiffs in error, was erroneous, because the claim which it sanctions is not in the bill of particulars. The bill of particulars states the claim to be for “ detention and damages,” in consequence of such detention for want of cement; and the instruction authorizes the defendants in error, to recover before the jury for money laid out and expended, on the count in the declaration ; the money having been paid to their hands while waiting for the cement. The company had not agreed to furnish cement. There was no express contract to do so. The supply they were to furnish depended on their obtaining the article ; either on the canal, or in New York, or elsewhere. It was a proposition, which, having been accepted, was not binding, unless the means of executing it were procured. This was the state of the arrangements between the parties, before the time limited in the contract expired ; and it was *not afterwards renewed. Thus, on the evidence, there was no foundation for the instruction ; the proof to L establish it failed. The evidence showed, that there was not a deficiency until after the 30th of December 1829. The deficiency which took place in the spring and summer of 1830, could not be made the subject of a claim. The whole instruction rests on the assumption, that the money was paid at the instance of the company. There was no evidence of such a request, and the court so decided in their previous ruling on the trial. Cited, Angel on Corporations 60, and the cases collected. By a reference to the charter of the company, under the Virginia law, the power given to the company to act, and the manner in which contracts .binding on the company are to be made, will be seen. The agreements which are held to bind the company, in this case, do not conform to those provisions. No contract is to be inferred from the confessions, or the casual conversations of the directors, or any of them. 7 Cow. 462. The circuit court left it to the jury to infer, that the contract had been rescinded, without a particle of evidence ; and they left it also to the jury to infer a new contract, when there was no testimony to sustain it. The claim to recover on the count for money laid out and expended, is against the authorities. Cited, 1 Tidd’s Pract. 537; 13 Petersd. 80; 3 Stark. 1055-6; 2 Bos. & Pul. 243. The instruction is upon the effect of evidence, or rather it is positive that certain matters had been proved. This was contrary to the principles of law regulating the trial by jury. The action of indebitatus assumpsit cannot be sustained for such a cause. Selw. N. P. 61. This action will only lie, where debt will lie, and a recovery of this kind cannot be had on such a general count. There should have been a special count, setting out all the circumstances, and alleging the liability of the canal company to furnish the cement by the contract. 6 East 569-70. -Sey, for the defendants in error.—The bill of exceptions is sufficiently descriptive of the demand of the plaintiffs in the circuit court. It gave the defendants notice of the nature of the claim. If it was not, they could have called for a further specification ; and this court will not allow an objection to be made here, which was not presented for the *- 361 551 SUPREME COURT [Jan’y Chesapeake and Ohio Canal Co. v. Knapp. consideration of the court below. As to the effect of the bill of particulars : cited, 1 Holt’s Nisi Prius 552; 9 Wheat. 581. Had the objection been made below, the plaintiffs would, under the law of Maryland, of 1785, ch. 8, § 4, have had the privilege of amending, even after the jury were sworn. As to the objection that the court has undertaken to instruct the jury on matter of fact, it is said, that the court adjudged that the canal company had undertaken to furnish the cement. This is not so ; the whole is put hypothetically. This court will not be disposed to construe the action of the circuit court unfavorably. The instruction assumes no facts; the court left the case and the evidence which was given, to the jury. As to the objection that the action could not be sustained by the evidence offered under the bill of particulars : cited, 1 Selw. N. P. 60 ; Moses v. Macferlan, 2 Burr. 1008 ; Perkins v. Hart, 11 Wheat. 237. The evidence supported the claim stated in the bill of particulars. If there had been no evidence, it is admitted, the instruction was erroneous; but the depositions of a number of witnesses prove the deficiency of cement, and the wages paid by the contractors while waiting for it. The court is particularly referred to this testimony. It is contended, that the acts of the president and directors, and the agents of the company, as proved in the depositions, were not binding upon the canal company. These acts were in the course of their duty; and the principles settled by this court in the cases of the Bank of Columbia n. Patterson, 7 Cranch, 299; Bank of the United States v. Dandridge, 12 Wheat. 64, support this evidence. The evidence is that of the agents of the company; that they received and communicated the orders of the board of directors to the contractors to keep their hands, and they would pay them. It is said, there should have been a record of the acts of the board upon. this matter, and that only such a record would be evidence. This, it is considered, was an objection to the evidence, which cannot be taken * here. But the *law does not require this evidence. The testimony was offered to show the contract, and was so received. The counsel in the court below allowed the evidence to be given, and took the chance of its influence; and they now come into this court and make objections to it. Webster, also for the defendants in error.—The proceedings in this court are on a writ of error to revise a judgment of the circuit court, in a case in which the plaintiffs below were creditors of the canal company, and sought the recovery of their claim; of which, on the demand of the defendants, they furnished a bill of particulars. It seems, they met in the case all the obstacles usually presented in actions against corporations. There were more than the usual exceptions taken in this cause, even in cases in this district. The record shows this. Many parts of the evidence were excluded by exceptions taken by the defendants ; and upon what was left, out of a claim for upwards of five times the amount, a verdict for upwards of $20,000 was obtained. On the writ of error in this court, nothing can be brought under an examination, but the accuracy of the motion ruled in the court below. The precise inquiry in the case is, does the bill of exceptions present a question for a decision of the court, which could be required of the court, on the counts m the declaration ? The law of bills of particulars is settled. If the bill of 362 1835] OF THE UNITED STATES. 552 Chesapeake and Ohio Canal Co. v. Knapp. particulars refers to the particulars of the matter excepted to, without being sufficiently definite, exception should be taken to it, and a further demand made. In this case, no such demand was made ; and under this general bill of particulars, the party went to trial, and no question was made before the trial, as to its sufficiency. It is said, that when the evidence was given, it was not known how it would be applied ; but this might have been brought to light by asking instructions of the court. The party introducing it cannot say, “ I will show you hereafter how the evidence will apply.” If the party against whom the evidence is offered admits it, he may ask the court to instruct the jury it does not apply. The bill of particulars shows that the claims of the plaintiffs *below were for wages paid, while waiting for cement ; and that there was a deficiency of cement. This was L enough, unless the defendants had asked for more ; which they could have done. The evidence was within the bill of particulars, and was fully authorized by it. The ruling complained of is a ruling in matters of law, and not of evidence. It is not a ruling as to the character of the evidence. It was the effect of the ruling of the law, upon a supposed state of evidence. Although it is admitted, that there must be some evidence, yet it was not necessary it should be strong. The question for the jury was the effect of the evidence. The questions presented are : 1st, Was there any evidence on this point ? 2d, Was the ruling right ? The rule against stating speculative cases cannot apply. There must be evidence to raise the question out of which the points are to be presented to the court. If there was any evidence, it was enough to sustain the ruling of the court, that the question should be given to the jury upon it. Was there such evidence, good or insufficient, to submit the case ? The evidence was various ; and that of one of the witnesses, Mr. Wright, was particularly applicable. The directors, at a meeting in the counting-house of the treasurer of the company, Agreed, that the company would pay the contractors for their losses by the want of cement. If this evidence was against an individual, it would be sufficient and competent. If it was objectionable as irregular, as it was against a corporation, it should have been excepted to. It was admitted, without an exception. The admission of it, on the trial, is equivalent to an agreement in writing to allow it to be given. Evidence given on trial, without objection, cannot afterwards be made the subject of an exception. By this evidence, it appears, that the engineers and officers of the company, assured the contractors they should be paid ; and this with the authority of the directors. The resolution of the board of directors, that they would not pay damages for the failure of the company to deliver cement, was the act of the plaintiffs in error. The contractors did not assent to this determination ; nor were damages claimed by the defendants in error. The claim is for the actual pecuniary expenses paid by them, while waiting for the cement. *But if this resolution could operate, the evidence shows, that it was afterwards rescinded or disregarded by the officers of the canal L company. The instruction given to the jury was well given, under another view of the case. The instruction involves the question of law, whether the plaintiffs in the circuit court could recover for the wages paid their men 363 554 SUPREME COURT [Jan’y Chesapeake and Ohio Canal Co. v. Knapp. while waiting for cement, under the count in the declaration for money paid, laid out, &c. Whether the evidence authorized such a recovery under this count, has been disregarded in the argument for the plaintiff in error. The defendants had prayed the court to instruct the jury, that no recovery could be had, unless a new contract was proved. This was denied by the plaintiffs. The instruction is thus put hypothetically ; and it should be so read by this court, interposing before each statement, “ if the jury believe and thus it will be manifest, that the court left all the matters to the jury. The bill of particulars in this aspect of the case, had nothing to do with the questions thus left to the jury. The evidence given was before the jury, and they found upon it for the plaintiffs; without any other than the legitimate action of the court upon the facts. Southard, for the plaintiffs in error.—The plaintiffs in error complain of an instruction given to the jury in the court below. To understand the instruction and test its validity, it is necessary to consider: 1. The nature of the action. 2. The claim made by the plaintiffs below. 3. The specific evidence to which the charge related. 4. The legality of the evidence in this action. 5. The legality of it, in the precise circumstances in which it was offered. These points embrace not only the views presented by the plaintiff in error, but those by which they have been resisted. 1. The action. It is indebitatus assumpsit. What may be recovered in this action ? Technically and practically, there are two kinds of assumpsit, as distinct as other forms of action. 1. A special assumpsit, when the plaintiff sets forth the breach of which he complains. In this he has to *5-5-1 set out a specific agreement, and the breach *of it; both of which J he must prove. This was clearly not done in this case. 2. Indebitatus assumpsit. It is in its nature an action of debt; and is substituted for it; because the defendant is not permitted in it, as he may in an action of debt, to wage his law. 4 Co. 91 ; 3 Wooddes. 168. Its precise character is important; especially, as one of the counsel for the defendants has thrown himself on this point, and suggested, that it had been disregarded in the opening argument. It is, however, without difficulty. The rule laid down is universal; although questioned by Lord Mansfield, in 2 Burr. 1088, the case cited by the defendants in error. It is established, that the form of indebitatus assumpsit will lie, in no case in which debt will not lie; although debt will lie, when it will not be sustained. 1 Salk. 23. In this action, the cause of the debt must be stated, but it must be concisely; yet if not stated, it is error, or is reason for arrest of judgment, Cro. Jac. 206-7, because the court must see that there is matter on which the assumpsit may be founded. In stating the matter, general forms, called common counts, have been long settled ; and it is an inquiry what may be proved under them. It will be lawful to prove any fixed, settled and determinate sum, arising on a precise contract, where the sum is, or may be, reduced to certainty ; such as, fees due by custom for tolls; or on a foreign judgment. But you cannot recover in it anything which is not of a definite character. 1 Salk. 23 ; 1 Ld. Raym. 69. It is common to avoid this difficulty by setting out in a special count, the contract by which the money is claimed ; and then, if a failure to prove the contract takes place, the general counts may be resorted to. But the special contract must be set out, if there is to 364 1835] OF THE UNITED STATES. 555 Chesapeake and Ohio Canal Co. v. Knapp be a recovery upon it. Among the common counts, “money paid, laid out, &c.,” is the most frequent. The law, in such cases, implies a promise of repayment; and there must be such a promise, express or implied. 8 T. R. 310, 610 ; 1 Ibid. 20. If the promise is express, it must be so stated ; as when one pays, to one in his own employ, wages, for the benefit of another, there must be an express contract stated and proved, or there is no consideration. *These are the very elementary principles in this action ; and they would not have been repeated, but they have been brought t into question by the adversary argument. The proper conclusions from them are: 1. That you cannot recover under a general count, what is founded on a special agreement, without setting out that agreement; and if it be permitted, there is error somewhere in the progress of the cause: 2. That you cannot claim unascertained damages, resulting from the violation of an agreement; if you do thus recover, there is equal error. The suggestion that everything recovered in the action must be damages, was made without precision of thought, or of expression. Damages are nominally, technically, recovered in this action ; but this is the description given to the amount of debt which is recovered ; and the sum which may be assessed by court or jury, for an injury sustained; an account stated ; an agreement to deliver grain at a given price, an ingredient of which is, the benefit to be derived from the possession and sale of it. When, therefore, it is complained, that damages have been recovered in this form of action, it means the latter, not the former kind. If they can, it should be shown how they can be recovered. This is now to be considered. 2. What is the case before the court ? What is the claim ? The case stated is on all the common counts, but only one comes in question here : that of “ money paid by plaintiffs for defendant’s use.” This is important to the precise understanding of the legal questions raised. What is this count ? For money paid. How pretended to have been paid ? Not on any legal ability, as surety or otherwise, but upon an express contract. What is the contract pretended ? That the defendants had promised to furnish water* lime, had failed so to do, and when the plaintiffs were suffering from the same, they promised, if they would not leave the work, would retain their hands, and pay them, they would refund the amount paid. A more special contract cannot be set out—a more specific claim for damages cannot be made. Take it in parts. 1. A promise to furnish water lime, and a failure. Could damages be recovered for these ? This need not be argued. 2. If you will keep and pay your hands, we *wiil save you harmless. The payment of the hands is but a part of the agreement, and the dam- L 1 ages follow. Is this varied by the promise to pay ? If it is, it must be applicable alike to all other damages ; for this was only a part, and the promises related to all. It appears clear, then, that there has been in the case a recovery which is against law ; and the inquiry is, can this court now arrest it; or has the cause been so managed below, that the eye of the judge cannot reach it, his ear is closed, and violations of law are to be sanctioned. The answers are to be found in the instruction which is now resisted. The history of the instruction is essential to the correct understanding of it. The plaintiffs claimed $140,000, on various accounts. They presented a bill of particulars, containing the items which formed this amount. At the trial, they offered proof of them; but they were all overruled; explicitly, 365 557 SUPREME COURT [Jan’y Chesapeake and Ohio Canal Co. v. Knapp. and without a single exception, overruled. This is a strong leading fact in the cause. There was a stage in the trial when the court had laid down the law, excluding every item in the bill of particulars. This fully appears on the record. The decisions of the court upon the claims of the plaintiffs, embrace : 1. The construction of all the locks, and the labor upon them, and the damages for not complying with the agreement, &c. The evidence given on the trial must have applied to one or other of those heads. First, as to the work, and the price of it. The contract prices had been paid. This is expressly shown in the record. Thus, the contract was established, and the prices were fixed ; and the accounts had been presented according to it and paid. All, therefore, in the bill of particulars, which relates to all the work contracted for at first, had been settled. The effort of the plaintiffs was, to obtain, not the contract prices which had been stipulated, but a higher price; a quantum valebat, or meruit; and the court expressly decided, that this could not be. All the extra price, therefore, was out of the case ; and this one decision left less than the amount recovered, as will be seen on an examination of the bill of particulars. This clearly shows, that in the further progress of the *case, there was some error which J admitted matters to wrong the defendants below. 2. There were changes and modifications in the work, and some of the items were founded on them. For these the plaintiffs sought to recover their value ; but the court ruled that they also must be governed by the contract; and that as the engineers were to estimate for them, and to settle controversies respecting them, their decision was to be conclusive, and no erroneous estimate, at a previous time, or by other persons, could alter it. The contract, and the instruction given upon it, will fully establish these positions, and show that all these items were overruled. 3. The plaintiff claimed damages on the subject of injuries sustained on a contract to furnish lime. Whether this contract was found in the original agreement, or in some subsequent one, it was all met by the court. The principle they sustained in the previous instruction was, that in this action, damages for the breach of a special contract could not be claimed and recovered. 4. The plaintiffs were hurried to finish the work by the 4th of July 1830, and they claimed damages in the form of higher wages, thirty-three per cent, advance on these wages. But the answers to this are—1st. The defendants had, by the contract, a right to urge them at any time. 2d. The evidence of this was the sayings of the president, which are clearly inadmissible to bind the company to pay damages. 3d. This was long after the time in which the contract was to be completed; and there was no evidence that the time was extended. This matter was then overruled. In these decisions of the court, on the several claims stated, all the claims of the plaintiffs, it is repeated, were overruled by the court in their previous instructions. Not an item in the bill of the plaintiffs can be found, to which one or other of the instructions of the court had not applied. If any exception from this position could be found, it was wages of the men during the detention, as alleged, from the want of cement. But these are manifestly independent of any contract to pay them, and they were damages from breach of contract ; as purely so, as any other evil resulting from the * neS^ec^ the defendants on this point. * Whether they can be -• removed from this condition, by what occurred in the subsequent 366 1835] OF THE UNITED STATES. 559 Chesapeake and Ohio Canal Co. v. Knapp. part of the case, will be hereafter considered. Whether the court did right or not, in thus excluding the plaintiffs from evidence, or the effect of evidence in these particulars, is not now the question. The plaintiffs below have recovered, and come here to sustain the judgment; and this they cannot do, by showing the court erred in deciding against them on other points. This is clear and is admitted. Nor is it necessary to discuss the conduct of the circuit court, in admitting these various instructions. The practice is peculiar to that court, and the courts of Maryland. No .one can conduct a case in safety under it. Not fact and justice, but skill, must triumph ; or the prejudices of the court and jurors prevail. But it is more important to remark, that these instructions are a substitute for the practice which prevails elsewhere, of taking exceptions to the admission of evidence, or claiming the rejection of evidence. And this is an answer to the suggestion, that the defendants should have objected to, and have asked the court to overrule the evidence. After this long examination, we have reached a position clear of difficulty, and can observe the action of the court in the instruction, which is the subject of examination on this writ of error. We have a claim, by the plaintiffs below, for a debt; the particulars of that debt ; a written- contract with the defendants by which it was limited ; and the overruling of every item in that bill, except such as were proved to have been paid. The result of this state of things to the plaintiffs, was inevitable. To escape from it, the plaintiffs sought an instruction on one specific point. It was in relation to the payment of wages on locks No. 5 and 6. It applied to no other locks. It was wages there, and on these locks only. This is a full answer to all the reference to the evidence in the case. There is no evidence relating to these locks ; all the testimony relates to other locks. The language of the instruction must be confined to this point; and the importance of so confining it is apparent. 1. Because damages with regard to all the other locks had been excluded ; and all damages for the want of cement. *2. The claim was under a contract to pay the wages on these, and not on L others. 3. If it extended to others, it will produce the result of making the court directly contradict itself ; having in eleven previous exceptions laid down other rules. 4. Because it was asked respecting two locks only, and if such a construction be given to it, as applies to others, an immense amount of damages is let in, ten times greater than is asked under this instruction. 5. Wages, as such, had been overruled, as damages ; these are to be brought in, because there was a special contract. If the instruction be liable to such an interpretation, it was error. The jury were not guided by it, but they were misled. On a particular examination of the instruction, it will be found to have two parts, as to time; from the 2d of September 1829, to the 30th of January 1830 : and after the 30th of January, the jury are told, that if they believe, 1st. That between the 2d of September 1829, and the 20th of January 1830, the defendants had contracted to deliver water lime ; 2d. That the plaintiffs expected it; 3d. That hands were kept idle, and were paid by the plaintiffs ; 4th. That the defendants requested this, and promised to pay for the same : the plaintiffs might recover the sums so paid, under the count in the declaration for money laid out and expended. This is not for damages, for that had been overruled ; but upon a special contract, and that contract was not stated. 367 560 SUPREME COURT Chesapeake and Ohio Canal Co. v. Knapp. [Jan’y The cases referred to in a previous part of the argument, have, therefore, full application to this ruling of the court. The second part of the instruction proves that this was the view of the court. They regard the contract as evidenced by the order of the 2d of September 1829, and rescinded by that of the 30th of January 1830. The instruction then was, that there was a contract, and wages paid on account of it, between the 2d of September 1829, and the 30th of January following. Let us examine, if this was correct, in point of law. There was no notice of such a claim. What notice was given ? The bill of particulars. It states detention and damages, for want of cement on locks 5 and 6, $600. The case cited shows, and it is admitted, that the bill of particulars, in such actions, must refer to the matters claimed, clearly and * _ *distinctly. Here, a contract for the payment of wages is embraced J under the words “ detention ” and “ damages.” Do they embrace it ? There is no reference to the contract, in the notice, no information of the ground of claim. Could the defendants suppose, that under it a specific contract was to be proved ? They knew that detention and damages could not be proved. There is a most marked distinction between them. Cited, 2 Bos. & Pul. 243 ; Tidd’s Pract. 537 ; Stark. Evid. 1056 ; 4 Taunt. 189. The claim presented to the jury in the instruction is not detention and damages, but a debt upon a specific contract; and the contract is not referred to nor stated in the bill of particulars. But it is objected, that although this be true, the plaintiffs in error are now too late. We are bound to notice, before trial, a defect in the bill of particulars, in stating matters not legally claimed, under such an action as this was. But it is denied that this is the law. When the parties came to the trial, they objected to the evidence. This was done expressly, when the claim assumed the form of damages, as it did when the eleventh instruction was given. A party may either object to the omission of the notice, or move to overrule the evidence, and to exclude it. The latter was done. It was, therefore, objected to, so far as it was in the power of the party to do it. Another objection to the instruction is, that it adjudges matters of fact. Upon this the counsel of the defendants in error differ with those who maintain this position. The court will decide the question. But there is another objection to the instruction. It submits what was not at all in evidence in the case. In support of this position, the counsel for the plaintiffs in error went into a particular examination of the evidence in ' the record. These reasonings on the instruction are submitted as fatal to it; and the evil which the plaintiffs in error sustained from it has been serious. While the damages claimed by the defendants, in the court below, were overruled, yet by this instruction, the whole question as to damages was left open to the jury, and a verdict was given in their favor, for upwards of $20,000. In the circuit court, if the claims of the defendants in error are just, they * will have no difficulties *in another trial: and, if the law requires it, J they may amend the declaration and the notice. It is not denied, that a contract may be inferred from the acts of a corporation. It is the better opinion, in modern times, that it can be done ; but in this case there was no evidence of any acts of the corporation, but 368 1835] OF THE UNITED STATES. 562 Chesapeake and Ohio Canal Co. v. Knapp. solely of some of the officers employed by it. There was no entry on the books of the corporation ; no meeting of the directors, or vote by the board. It was the act of the president only, on which the plaintiffs below rested their claims ; and of the engineers, on the authority of the president. This was not sufficient. The court must adjudge whether there was sufficient evidence to make the corporation liable. 1 Pet. 363 ; 12 Wheat. 74, were cited by the counsel of the defendants in error ; and they sustain the rule now contended for. McLean, Justice, delivered the opinion of the court.—This case is brought before this court, by writ of error to the circuit court for the district of Columbia. The defendants here, who were plaintiffs in the circuit court, commenced an action of assumpsit, to recover a large sum alleged to be due, for the construction of certain locks, &c., for the Chesapeake and Ohio Canal Company ; and filed their declaration, containing nine general counts of indebitatus assumpsit, for work done and materials found, money laid out and expended, on account stated, &c. ; and the defendants pleaded the general issue. On the trial, several exceptions were taken to the ruling of the court, by the plaintiffs ; and one exception was taken by the defendants, which presents the points for the decision on the present writ of error. The following is the instruction referred to : “ In the further trial of this cause, and after the evidence and instructions stated in the preceding bills of exceptions had been given, and aftei- evidence offered by the plaintiffs, of the payment of money to the laborers for the time during the detention, occasioned by the want of cement on locks 5 and 6, the plaintiffs, by their counsel, prayed the court to instruct the jury, that if the jury believe, from the said evidence, that the defendants had, on the 2d of September 1829, and from that time till the 20th day of January 1830, contracted with the plaintiffs to furnish *them with cement necessary, &c., in due time, &c.,tand that the plaintiffs, expecting that sufficient supplies L of cement to go on with the work would be furnished by the defendants, as defendants had so engaged to do, hired a large number of hands, and brought them to the locks ; and when the defendants had so failed to furnish the cement, kept the same hands idle, waiting for cement, on the defendants’ desire that they should do so, in order to be ready to go on with the work; and paid them their wages, while so waiting ; then the plaintiffs are entitled, under the count for money laid out and expended, contained in the declaration, to recover the money so paid to said hands, during such periods. But that the plaintiffs are not entitled to recover for wages paid to their workmen, on account of a deficiency of cement, after the said 20th day of January 1830, unless the jury shall be satisfied by the said evidence, that the said resolution of the board of directors of the 20th of January 1830, was rescinded by the said board, and a new contract entered into thereafter, by the defendants, to furnish cement to the plaintiffs, and the subsequent failure on their part so to furnish it, and an agreement also to pay for the wages of the plaintiffs’ workmen, while so waiting,” &c. The resolution referred to in the bill of exceptions, is in the words following : “ Resolution of the Board of Directors of the canal company, in meeting, January 20th, 1830. Resolved, that although this board has stipulated to supply the contractors with water lime, yet the board will not 9 Pet.—24 369 563 SUPREME COURT [.Tan'y Chesapeake and Ohio Canal Co. v. Knapp. be held I’esponsible for any damages arising from the want of that article.” A bill of particulars was filed by the plaintiffs under the order of the court; and in which bill, the following item is charged : “ Detention and damage sustained, for want of cement, in locks No. 5 and 6, $600.” This case has been ably argued on both sides, and the questions involved in it are of much practical importance. The counsel for the plaintiffs in error object to the bill of particulars, and insist that the above item for damage for want of cement, &c., is not sufficiently specific, as it does not apprise the defendants of all the facts on which the charge for damage is made. It does not state how the damage was sustained by the plaintiffs, * , and on what ground an indemnity *was claimed of the defendants. J A bill of particulars, it is contended, when demanded, becomes a part of the declaration ; and with the exception of certain averments, it should contain equal certainty. There can be no doubt, that a bill of particulars should be so specific, as to inform the defendant, substantially, on what the plaintiff’s action is founded. This is the object of the bill, and if it fall short of this, its tendency must be to mislead the defendant, rather than to enlighten him. As the bill of particulars is filed before the trial, it is always in the power of the defendant, to object to its want of precision, and the court will require it to be amended, before the commencement of the trial. And if this be not the only mode of taking advantage of any defect in the bill, in practice, it is certainly the most convenient for the parties. In 4 Taunt. 188, the court of common pleas say, substantially, “if a bill of particulars specifies the transaction upon which the plaintiff’s claim arises, it need not specify the technical description of the right which results to the plaintiff out of that transaction.” In that case, the plaintiff declared for goods sold and delivered, and for money paid ; and delivered to the defendant a bill of particulars, viz : “ To seventeen firkins of butter, fifty-five pounds six shillings”—not saying for goods sold. The court decided, that the action should be sustained on the count for money paid. And they remark, as to the objection taken respecting the bill of particulars, bills of “ particulars are not to be construed with all the strictness of declarations ; this bill of particulars has no reference to any counts, and it sufficiently expresses to the defendant, that the plaintiff’s claim arises on account of the butter.” And we think, in the present case, that although the bill of particulars does not specify technically and fully the grounds on which the plaintiffs claim damages ; yet, in the language of the above case, it sufficiently expresses to the defendants, that the claim arises for want of cement in locks No. 5 and 6. But the ground on which some reliance seems to be placed for the reversal of this judgment, and which, in the view of the court, is one of the principal points presented by the record, is, that the jury were instructed to * . find for the plaintiffs below, on *proof of a special contract, and J under a declaration containing only general counts. By the instruction of the court, if the jury found, from the evidence, that the contract had been made by the defendants, as stated, and that the money had been paid to the hands detained for want of cement, the plaintiffs were entitled to a verdict on the count for money laid out and expended. In the argument, it was contended, that there was no legal proof of the special contract. That a corporation can only contract within the terms of its charter, and 370 1835] OF THE UNITED STATES. 565 Chesapeake and Ohio Canal Co. v. Knapp. that there does not appear to have been any action of the board, sanctioning the contract as insisted on by the plaintiffs. The ancient doctrine, that a corporation can act in matters of contract only under its seal, has been departed from by modern decisions ; and it is now considered, that the agents of a corporation may, in many cases, bind it, and subject it to an action of assumpsit. But it is unnecessary to examine either the ancient or modern doctrine on this subject; for as no exception was taken to the evidence which conduced to prove a special contract in the court below, the objection cannot be raised in this court. There can be no doubt, that where the special contract remains open, the plaintiff’s remedy is on the contract; and he must set it forth specially in his declaration. But if the contract has been put an end to, the action for money had and received lies, to recover any payment that has been made under it. The case of Towers v. Parrett, 1 T. R. 133, illustrates very clearly and fully this doctrine. In that case, the plaintiff recovered, on a count for money had and received, ten guineas paid to the defendant for a one-horse chaise and harness, which were to be returned, on condition the plaintiff’s wife should not approve of the purchase, paying three shillings and six-pence per diem for the hire, should they be returned ; and as the plaintiff’s wife did not approve of the purchase, they were returned and the hire was tendered at the same time. “ But if the contract remain open, the plaintiff’s demand for damages arises out of it, and then he must state the special contract, and the breach of it.” It is a well-settled principle, where a special contract has been performed, that a plaintiff may recover on the general *counts. This principle is laid down by this court, in the case of the Tank, of Columbia v. Patterson's Administrators, L 7 Cranch 299. In that case, the court say, “ we take it to be incontrovert-ibly settled, that indebitatus assumpsit will lie to recover the stipulated price due’ on a special contract, not under seal, where the contract has been executed; and that it is not, in such case, necessary to declare upon the special agreement.” It would be difficult to find a case more analogous in principle to the one under consideration, than the above. The same questions, as to the right of the plaintiff to recover on the general counts, where the special agreement was performed ; and, also, as to the powers of a corporation to bind itself, through the instrumentality of agents ; were raised and decided in that case, as are made in this one. And it would seem, where this court had decided the point in controversy, and which decision had never afterwards been controverted, that the question is not open for argument. But whether this doctrine be considered as established by the adjudications of this court, or the sanction of other courts, it is equally clear, that no principle involved in the action of assumpsit, can be maintained by a greater force of authority. In 1 Bac. Abr. 380, it is laid down,.that “wherever the consideration on the part of the plaintiff is executed, and the thing to be done on the defendant’s part, is mere payment of a sum of money, due immediately ; or where money is paid on a contract which is rescinded, so that the defendant has no right to retain it; this constitutes a debt for which the plaintiff may declare in the general count, on an indebitatus assumpsit. Anciently, the count in such cases was special, stating the consideration as executory, the promise, the plaintiff’s performance, and the defendant’s breach ; but the indebitatus 371 666 SUPREME COURT [Jan’y Chesapeake and Ohio Canal Co. v. Knapp. has grown, by degrees, into use.” “ So also, if goods are sold and actually delivered to the defendant, the price, if due in money, may be recovered on this count ; and this though the price is settled by third parties.” 1 Bos. & Pul. 397 ; 12 East 1. “Where the plaintiff let to the defendant land, rent free, on condition that the plaintiff should have a moiety of the crops ; and while the crop of the second year was on the ground, it was appraised for * *parties, and taken by defendant ; it was held, that the plaintiff J might recover his moiety of the value in indebitatus assumpsit, for crops, &c., sold ; for by the appraisement, the special agreement was executed, and a price fixed at which the defendant bought the plaintiff’s moiety.” The same principle is found in Helps and another n. Winterbottom, 2 B. & Ad. 431 ; Brooke v. White, 4 Bos. & Pul. 330 ; Bobson n. Godfrey, Holt 236 ; Heron v. Granger, 5 Esp. 269 ; Ingram n. Shirley, 1 Stark. 185 ; Forsythe. Jervis, Ibid. 437 ; Harrison v. Allen, 9 Moore 28 ; Bayley v. Gouldsmith, Peake 56 ; Gendall v. Pontigny, 1 Stark. 198 ; Farrar n. Nightingale, 2 Esp. 639 ; Biggs v. Undsay, 7 Cranch 500 ; James v. Cotton, 7 Bing. 266 ; Foster’s Administrator v. Foster, 2 Binn. 4 ; Sykes v. Summer el, 2 Browne (Pa.) 227. As, by the instruction of the court, the jury must have found the contract executed by the plaintiffs below, before they rendered a verdict in then* favor, we think, the question has been settled by the adjudged cases above cited ; and that on this point there is no error in the instruction of the court. But it is insisted, that, in their instruction, the court lay down certain facts, as proved, which should have been left to the jury. If this objection shall be sustained, by giving a fair construction to the language of the court, the judgment must be reversed ; for the facts should be left with the jury, whose peculiar province it is to weigh the evidence, and say what effect it shall have. The instruction states, “ that if the jury believe from the said evidence, that the defendants had, on, &c., contracted with the plaintiffs, expecting that sufficient supplies of cement to go on with the work, would be furnished by the defendants, as defendants had so engaged to do, hired a large number of hands and brought them to the locks, and, when the defendants had so failed to furnish the cement, kept the said hands,” &c. The words italicised are those objected to, as assuming the facts stated to be proved, and consequently superseding an inquiry into those facts by the jury. It must be observed, that in the first part of the instruction, the jury were told, “ that if they believe from the said evidence, that the defendants * -I had contracted with the plaintiffs to furnish *them with cement neces- J sary, &c., in due time, &c., and the plaintiffs expecting that the cement would be furnished, as defendants had so engaged to do, &c., making the words italicised to depend upon proof of the contract, viz., the furnishing of the cement in due time, as stated in the bill of exceptions ; it would, therefore, seem to be clear, that these words could not have withdrawn from the jury any fact, as they were made to depend on the establishment of the contract by the finding of the jury. And the same remark applies to the other words objected to ; that is, when “ the defendants had so failed to furnish the cement for these words could have had no influence with the jury, unless the evidence, by their finding, not only established the contract to deliver the cement, but also showed a failure by the defendants to deliver it. It therefore appears, that the words objected to in the instruction, when 372 1835] OF THE UNITED STATES. 568 Chesapeake and Ohio Canal Co. v. Knapp. viewed in connection with its scope and the language used, did not assume facts by which the jury could have been misled ; but stated them as resulting from the finding of the jury, that the contract had been made and broken by the defendants, as hypothetically stated in the instruction. It is objected, that there was no evidence in the case, conducing to prove the facts on which the above instruction was founded. The court ought not to instruct, and indeed, cannot instruct on the sufficiency of evidence ; but no instruction should be given, except upon evidence in the case. Where there is evidence on the point, the court may be called on to instruct the jury as to the law, but it is for them to determine on the effect of the evidence. In the present case, there was evidence, which was not objected to, conducing to prove the contract, hypothetically stated in the instruction ; and in such case, whatever ground there might have been for a new trial, there is none for the reversal of the judgment. The instruction was limited to the damages sustained by the plaintiffs, for a failure to deliver cement by the defendants, for the construction of locks numbered five and six ; and as the bill of particulars charges the damages thus sustained at $600 only, and the damages assessed by the jury amount to the sum of $20,707.56, it is contended by the ^counsel for pj. the plaintiffs in error, that on these facts, the judgment should be re- *-versed. In the course of the trial, twelve bills of exception were taken by the plaintiffs to the rulings of the court on the various points raised ; but these exceptions are not now before the court for decision. It is insisted, however, that although the questions of law raised by these exceptions are not before the court; yet the facts, in regard to the evidence which is shown by the exceptions, are before them, and should be considered in reference to the point now under examination. In the eleventh bill of exceptions, after certain prayers by the plaintiffs’ counsel, which were refused by the court, the defendants, by their counsel, “ prayed the court to instruct the jury, that the plaintiffs are not entitled to recover damages under either of the counts in the declaration in this cause, by reason of any failure on the part of the defendants to deliver cement to the plaintiffs for the prosecution of their work on the locks contracted to be built by them ; which the court gave as prayed.” And in the twelfth exception, they gave a similar instruction, on the prayer of the defendants. From these exceptions, and others taken by the plaintiffs below, and the bill of particulars, it is contended, that it sufficiently appears, there was no evidence before the jury, under the instructions of the court, except that which conduced to show the amount of damages sustained by the plaintiffs, for the want of cement in the construction of locks five and six. If it were proper to look into the exceptions of the plaintiffs below to ascertain this fact, there Ayould still be no difficulty in overruling the objection ; for the instruction given on the prayer of the plaintiffs below, and excepted to by the defendants, and which is the error complained of, may be reconciled with the other exceptions, on the ground that additional evidence was heard by the jury, before the instruction was given. But if this were not the case, it would afford no ground for the reversal of the judgment of the circuit court. Whether the court erred or not in refusing to give the various instructions prayed for by the plaintiffs below, 18 u°t now a subject of inquiry. It may be admitted, that they did err, so 373 570 SUPREME COURT New York Life and Fire Insurance Co. v. Adams. [Jan’y that if the verdict had not been satisfactory to the *plaintiffs, they might have reversed the judgment on a writ of error ; yet the evidence on which those instructions were refused, remained in the cause, for the action of the jury. And as additional evidence was given, as appears by the exception of the defendants below; the cause was submitted to the jury upon the whole evidence. Whether the. jury assessed the damages on account of the injury sustained by the plaintiffs, for the want of cement in the construction of locks, other than those numbered five and six, or on account of other items stated in the bill of particulars ; it is impossible for this court to determine. If the jury failed to observe the instructions of the court, or found excessive damages, the only remedy for the defendants was by a motion for a new trial. As the case now stands, we are limited to the legal questions which arise from the instruction given on the prayer of the plaintiffs, which was excepted to by the defendants, and on which this writ of error has been brought. And as it appears from the views already presented, that the circuit court, in giving this instruction, did not err, the judgment below must be affirmed, with costs. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum. *571] *The Life and Fire Insurance Company of New York v-Christopher Adams Mandamus. Although no rule to show cause why a mandamus should not issue to the district judge of Louisiana had been granted by the court, the district judge had agreed to appear, as if a rule had been granted by this court, and had. been served upon him; and copies of the papers on which the motion for a mandamus was founded, had been served by the district judge and on the parties in the suit in which the mandamus was to operate, during the vacation ; the district judge filed an answer, as if the rule had been served on him, and appeared by counsel, waived the formal rule on notice, and stated his readiness to show cause. Under such circumstances, there is no necessity for directing a rule to be entered and notice to be given ; all the purposes of the rule are accomplished. This was a motion for a Mandamus, to be directed to the District Judge of the district of Louisiana. There had not been any rule taken out and served on the district judge, to show cause why a mandamus should not issue. Copies of the papers on which the motion was founded, with notice that the same would be made at this term, had been served on the district judge and the parties in the suit pending before him, during the late vacation. The district judge appeared by counsel, and waived any notice of a rule to show cause, and offered to show cause instanter. An objection having been suggested, whether, even by consent on both sides, the rule and service thereof ought to be dispensed with, some discussion took place on the subject between the bench and the bar. 374 1835] OF THE UNITED STATES. 571 New York Life and Fire Insurance Co. v. Adams. Baldwin, Justice, was of opinion, that in a cause of this sort, the court ought not to dispense with the regular course of proceedings, by the granting and service of a rule to show cause. Marshall, Ch. J., said, that the grant of a rule to show cause and the service thereof, is a matter in the discretion of the court. The court may, in its discretion, grant an alternative mandamus, if it deems it more conducive to public *justice, and to prevent delays. Here, all the parties express themselves ready to proceed in the cause. The dis- ■-trict judge waives any formal rule and notice, and wishes no delay ; and states his readiness now to show cause. Under such circumstances, all the purposes of a rule to show cause and notice are accomplished, and there is no necessity for directing such a rule and notice. The court, therefore, in my opinion, may properly proceed at once to the hearing of the cause, for the purpose of ascertaining whether a mandamus ought or ought not to be awarded. The other judges concurred in the opinion of the chief justice; and the court directed the motion to come up on the next motion day. *The Life and Fire Insurance Company of New York v. [*573 Christopher Adams.1 Mandamus. In the district court of the United States for the district of Louisiana, the district judge refused to extend a judgment previously entered in the district court, so as to cover other instalments due to the plaintiffs, which became due after it was entered; and to enter a judgment in favor of the plaintiffs, mortgagees, upon a transaction which had been entered into with the mortgagor, in relation to the debt due to the mortgagees, in which it was stipulated, that judgment should be entered for certain instalments to be paid to the plaintiffs, on the non-payment of the same; the district judge not considering the plaintiffs entitled to have the judgment entered, according to the terms of the transaction, without notice to the debtor and his syndics, into whose hands his property had passed under the insolvent law of Louisiana, after the execution of the transaction, and after a judgment for part of the debt had been entered; which was the judgment asked to be extended. The district judge was also required to receive a confession of judgment against the mortgagor and the insolvent, by an agent of the plaintiffs, and whose powers to confess the judgment, the district judge did not consider adequate and legal for the purpose ; an execution had been issued for a part of the debt, upon the previous judgment in the district court, and the execution was put into the hands of the marshal of the United States ; who, finding the property of the insolvent defendant, the property mortgaged to the plaintiffs in the hands of the syndics of the creditors of the mortgagor, according to the insolvent law of Louisiana, refused to proceed and sell the same, and returned the execution unexecuted. An application was made to the supreme court for a mandamus, to command the district judge to enter the judgment required of him, and to receive the confession of the judgment by the agent of the plaintiffs, and award execution thereon; and also to compel him to oblige the marshal to execute the execution in his hands, on the property of the defendant wherever found. The court refused to award a mandamus, on any of the grounds, or for any of the purposes stated in the application. To extend a judgment to subjects not comprehended in it, is to make a new judgment. This court is requested to issue a mandamus to the court for the eastern district of Louisiana, to enter a judgment in a cause supposed to be depending in that court; not according to the opinion which it may have formed on the matter in controversy, but according to the opinions which 1 For a prior proceeding in this cause, see 8 Pet. 291. 375 573 SUPREME COURT [Jan’y New York Life and Fire Insurance Co. v. Adams. may be formed in this court, on the suggestions of one of the parties; this court is asked to decide that the merits of the cause are with the plaintiff; and to command the district judge to render judgment in his favor. It is an attempt to introduce the supervisory power of this court into a cause, while depending in an inferior court, and prematurely to decide it; in addition to the obvious unfitness of such a procedure, its direct repugnance to the spirit and letter of our whole judicial system cannot escape notice. *5*741 *The supreme court in the exercise of its ordinary appellate jurisdiction, can take cognis. J ance of no case, until a final judgment or decree shall have been made in the inferior court; though the merits of the cause may have been substantially decided ; while anything though merely formal, remains to be done, this court cannot pass upon the subject. If, from any intermediate stage in the proceedings, an appeal might be taken to the supreme court, the appeal might be repeated, to the great oppression of parties ; so, if this court might interpose by way of mandamus, in the progress of a cause, and order a judgment or decree, a writ of error might be brought to the judgment, or an appeal prayed from the decree, and a judgment or decree, entered in pursuance of the mandamus, might be afterwards reversed; such a proceeding would subvert our whole system of jurisprudence. The mandamus ordered by this court, 8 Pet, §06, directed the performance of a mere ministerial act. It is the duty of a marshal of a court of the United States, to execute all process which may be placed in his hands ; but he performs this duty at his peril, and under the guidance of law ; he must, of course, exercise some judgment in the performance; but should he fail to obey the emgit of the writ, without a legal excuse, or should he, in its letter, violate the rights of others, he is liable to the action of the injured party. In the particular case in which the creditor asks for a mandamus to the district judge, to compel the marshal to seize and sell the property mentioned in the writ, that property is no longer in the possession of the debtor against whom the process is directed; but has been transferred,, by law, to other persons, who are directed by the same law, in what manner they are to dispose of it. To construe the law, or to declare the extent of its obligation, the questions must be brought before this court in proper form, and in a case in which it can take jurisdiction; the case so far as it is before any judicial tribunal, is depending in the district court of the United States, and perhaps, in a state court in Louisiana. The supreme court of the United States has no original jurisdiction over it; and cannot exercise appellate jurisdiction, previous to a final judgment or decree, further than to order acts, purely ministerial, which the duty of the district court requires it to perform; this court cannot, in such a condition of a case, construe judicially the laws which govern it, nor decide in whom the property is vested; in so doing, it would intrude itself into the management of a case, requiring all the discretion of the district judge, and usurp his powers. Though the supreme court will not order an inferior tribunal to render judgment for or against either party, it will, in a proper case, order such court to proceed to judgment. Should it be possible, that in a case ripe for judgment, the court before whom it was depending could per-severingly refuse to terminate the cause; this court, without indicating the character of the judgment, would be required by its duty to order the rendition of some judgment; but to justify this mandate, a plain case of refusing to proceed in the inferior court, ought to be made out. Motion for a Mandamus to the District Court for the Eastern District of Louisiana. The case is fully stated in the opinion of the court. * , *The case was argued by Butler, Attorney-General, and Jones, J for the petitioners ; and by Clay and Porter, against the mandamus. Butler stated, that the case was before the court upon the following order: That the Honorable Samuel H. Harper, judge of the district court of the United States for the eastern district of Louisiana (who now here appears by his counsel, Henry Clay and Alexander H. Porter, Esquires, and consents to this rule), show cause, on Saturday next, why this court shall not award a writ of mandamus, requiring and commanding him : 1. To issue, or permit to be issued, such an execution as was, in fact, issued at the 376 1835] OF THE UNITED STATES. 575 New York Life and Fire Insurance Co. v. Adams. instance of the plaintiffs, on or about the 12th of March 1834, on the judgment of the Petitioners v. Christopher Adams, in the petition mentioned ; being an execution for the amount now due on all the notes secured in the mortgage and transaction executed by said Adams : or, 2. If the said judge shall show sufficient cause, in the opinion of this court, against the issuing of such execution, in the present condition of the «aid judgment, then, commanding him to amend such judgment, or to permit the same to be amended, by extending the terms thereof, so as to make the same an absolute judgment upon all the notes and sums of money enumerated in the original transaction, and thereupon to issue, or permit to be issued, such execution as above mentioned : or, 3. If, in the opinion of this court, sufficient cause shall be shown by said judge, against the consummation of said judgment, in the mode and form last above stated, commanding him then to consummate the interlocutory part of the same, by entering and signing final judgment or judgments, upon and for all the notes and sums of money mentioned in the transaction aforesaid, as not being then due ; and thereupon, to issue, or permit to be issued, such execution, for the whole amount of all the notes as above mentioned ; and, 4. In respect to such execution, if any, for the whole amount of the said notes, as may be so ordered to be issued by this court, commanding the said judge to compel, by due process of law, the marshal of the eastern district of Louisiana, duly to execute the same, notwithstanding the cession of the *estate of said Adams, and the appointment of a provisional syndic thereof. But if, in the opinion L of this court, sufficient cause shall be shown by the said judge, against any writ of mandamus, requiring him to do, or permit to be done, the matters and things herein-above suggested, in regard to an execution for the whole amount of all the said notes ; it is then ordered, that the said judge show cause why a writ of mandamus should not issue, as aforesaid, requiring him to compel, by due process of law, the marshal of the eastern district of Louisiana, duly to execute the writ of execution heretofore issued on the said judgment, for the amount of the notes of said Adams, due on the 16th of May 1826 (the date of said transaction), which said execution was dated the 30th of April 1834, and returnable the third Monday of May thereafter, notwithstanding the cession and other matters mentioned in the return of the said marshal to said execution. Butler said, the general objects of the application for the mandamus were : 1. To obtain execution or executions for the whole amount of all the notes given by Christopher Adams to the Life and Fire Insurance Company; or, at all events, for the notes not due when the first judgment was entered. 2. To procure the execution of the process issued by the district court of the United States, upon the property mortgaged ; notwithstanding the cession of the property of Adams, under the insolvent laws of Louisiana, and the possession of that property by the syndics, acting by the authority of those laws. These objects can only be obtained by a mandamus from this court. As to so much of the application as asks for a mandamus to compel the judge to perfect the judgment and award execution, there can be no doubt of the jurisdiction of this court to award it. It is within the principles established by the court, at the last term, in the Life, Insurance Company v. 377 576 SUPREME COURT [Jan’y New York Life and Fire Insurance Co. v. Adams. Heirs of Nicholas Wilson, 8 Pet. 291. Upon this part of the case, no doubt is therefore entertained of the success of the application. The rule which has been obtained in this case embraces *several ' 'J points, and this cause is sustained by the case .Ex parte Bradstreet, 6 Pet. 774. The first point is founded on the supposition, that in the present state of the record, in the court below, the petitioners are entitled to an execution for the whole amount of the debt due by Adams. The original mortgage imported a confession of judgment, because it was made according to the laws of Louisiana, before a notary. Civil Code of 1825, art. 2231-3. It, therefore, authorized the creditors to sue out an execution “in via executiva, without resorting to an action on the mortgage, in via ordi-naria.” Code of Practice, 733, 734 ; Digest of the Civil Code of 1808, 460, art. 40 ; Digest of 1825, 3361 ; 7 Mart. 238 ; 12 Ibid. 671. On these authorities, the petitioners were, without notice to the mortgagor, entitled to execution on the mortgage ; by simply making oath that the debt is due, in whosoever hands the property mortgaged may be. Code of Practice, 61-4. If, therefore, an application had been made by the insurance company to the district judge, for an execution, or writ of seizure and sale, it must have been given ; and if he had not granted it, this court would have compelled him by a mandamus. In 1826, such an application was made to Judge Robertson, and was granted by him. But the petitioners have other securities which render their right to this judgment, and the proceedings upon it, still more certain. The “ transaction ” of 1826 was a confession of judgment for the whole amount of the debt. The effect of this “ transaction” on it, and the seizure, was to allow and authorize the party, as the instalments became due, to take out execution for the amount thereof. All such agreements have the force of law, have the force of things adjudged ; and cannot be revoked or altered by the party who enters into them with his creditors. Civil Code, art. 3038, 3045, 2270. The decree of the district judge, entered on the 7th of March 1834, under the mandamus issued at the last term of this court, is in conformity to the rights of the petitioners, thus understood, and covers the whole of their claim. It became the duty of the clerk, after that decree, to enter the judgments for the instalments not due in 1826 ; and this was a mere matter of form. It was a judicial mortgage, and stood like a judgment on a bond, in a court *of common law, for a debt payable by instalments; or J like a decree in equity on a mortgage payable in like manner. This “transaction” did not extinguish the mortgage. Civil Code of 1825, art. 3374. The second alternative presented by the petitioners, asks this court, if cause should have been shown against issuing the executions for the whole amount of the debt; that this court command the amendment of the judgment, or permit its amendment, so as to include in it all the notes ; and issue, or permit execution to issue, for the whole amount of the judgment so amended. The objection to the entry of the judgment, under the power given by Adams, is, that having become insolvent, he has no capacity to confess a judgment. “No standing in judgment,” according to the law of Louisiana. To this it is answered, that the rule as to standing in judgment in cases of insolvency, applies only to the plaintiffs. But in this case, the act of confessing judgment is not under a power given since the insolvency 378 1835] OF THE UNITED STATES. 578 New York Life and Fire Insurance Co. v. Adams. of Adams. It was proposed to be entered, under a power granted in 1826, and is the legitimate exercise of the power ; which Adams could not revoke, and on which the laws of Louisiar a could not operate retrospectively. If such could be the operation of these laws, they would rescind and annul a solemn contract; and this they are forbidden to do by the constitution of the United States. This would be a retroactive effect upon the vested rights of the creditors of Adams ; and impair a security, perfected and, according to the laws of Louisiana, existing and in force when the contract was made. The cession of the property of an insolvent is his own act; in this case, it is a voluntary act of Adams, and this is claimed as vacating his prior contract. When a transaction, such as that in this case, prohibits an appeal from the judgment upon it, or any a-ction in a court to diminish its effects ; shall it be in the power of a party who has entered into it, by an application for the benefit of the insolvent law, to defeat it ? It is also urged, that the civil code of Louisiana contains no prohibition of an insolvent defendant to confess a judgment. The allegation that such a defendant has no standing in judgment, is derived from the decision of the courts of Louisiana. *It is a deduction of a state court from the law, ri! . and has no binding effect on a court of the United States. The L power of Mr. Eckford to confess the judgment was regularly transferred to Mr. Barker ; and as the attorney of Adams, under the substitution held by him, no notice was required to be given to Adams. This was the objection of the district judge to the exercise of the power, and to the confession ; but by the law of Louisiana, notice is not necessary. If Adams had deemed notice necessary, he should have stipulated for it in the transaction. The authority of Mr. Barker to confess the judgment, was derived under the assignment of the Life and Fire Insurance Company to the Mercantile Insurance Company. The former company had sold all this debt, and had transferred all the powers they possessed to collect it; and Mr. Barker acted under the assignment by the Life and Fire Insurance Company to him. Mr. Eckford is dead, but it was not a personal trust in him ; it was held for the benefit of the insurance company of which he was the presiding officer. The power to confess the judgment was a part of the security, and passed with the transfer. A note to the president of a company for a debt due to the company, may be put in suit by the company, without the aid of the president. It is admitted, that, on general principles, a mandamus ought not to issue to a judge, to act in a particular manner, in a case within his discretion. But this court, at the last term, decided, that the signing of a judgment was a ministerial act; and such only is the proceeding now required. Judge Robertson, in the former case, had applied his judicial mind upon the notes due in 1826, no more than Judge Harper has done in this. He had done nothing but a mere formal act. He was bound by the law of Louisiana to enter the judgment; and he did enter it. So, in this case, there is an obligation on Judge Harper to act ministerially, and enter the judgment. Ought not the marshal of the United States for the eastern district of Louisiana, to be compelled, by a mandamus directed to the judge of the district court, to execute the process of execution, which was issued upon the judgment entered in that court ? r*580 It is the desire of all the parties in this case, to have the *question L ° 379 580 SUPREME COURT [Jan’y New York Life and Fire Insurance Co. v. Adams. upon the duties of the marshal decided in this court. All know, that if the question is not now regularly before the court, it must ultimately come up for decision; and it would be highly beneficial and satisfactory, to have it now disposed of. It is admitted, that consent does not give jurisdiction ; but this is given by the judiciary act of 1789, § 13. Congress intended, by “ usages of law,” the terms in the statute, such as had prevailed in England, and in the states of the Union, which had made these usages the rules of the local tribunals. Such has been the understanding of this court; and the general jurisdiction exercised by the court of king’s bench is referred to, for the purpose of ascertaining “ what the usages of law” are. So, where the highest tribunals of the states have exercised them, the existence and nature of the usages as proved. The general rules on this subject, are to be found in Ex parte Eradstreet, 1 Pet. 635. The court decided in that case, that wherever the legal rights of a party had been violated, and in a case where the discretion of the judge was not involved ; this would be corrected by a mandamus, if it was not the subject of a writ of error. 7 Pet. 635 ; 3 Dall. 42 ; 6 Pet. 216, 223. This is also the rule in the state courts. Although there may be another remedy, the court will proceed, if there will not lie a writ of error. The courts of New York possess and exercise the same jurisdiction as the court of king’s bench in England. 5 Wend. 114. It was the duty of the marshal to execute the process. Judiciary act, § 27. (1 U. S. Stat. 87.) The action against the marshal, by suit, may be an inadequate remedy; and under any circumstances, it is one of great delay and expense. The provisions of the statute of the United States referred to, give the courts full power to enforce the execution of process. If the marshal shows no sufficient cause for disobedience, he is in contempt; and the injured party has a legal right to compulsory process ; as where he does not return a writ or bring in the body. In the present case, the marshal received process, commanding him to levy on certain property, described in a petition annexed. He was desired to seize on a particular and specified tract or piece of land, and to sell it. It was not a general *execution against all the property of the defendant, but an execu- -* tion in rem. It was his duty to proceed under the mandate of the court. If he violates this duty, if he refuses to obey the command of the writ, he may be liable to an action ; but this does not exempt him from the power of the court. The marshal of the district court returned a reason for not executing the process, which the court below pronounced sufficient; but if this court shall consider it insufficient, the injured party has a right to a mandamus. As to the sufficiency of the return, it is to be observed, that it contains no evidence of the insolvency of the defendant, but the word of a person who was no more than a provisional syndic. The cession of the property was made on the 9th of March, and the execution issued in April. The cession did not expressly divest the estate of the insolvent; and if this was the effect of the proceeding, it was such by implication only. But what did the cession pass ? Nothing more than the interest of Adams, and this could not affect the prior liens. These liens were not to be affected or impaired by the cession. To delay the fruits of the execution, by preventing its operation, would impair it. And the lien of the petitioners was a 380 1835] OF THE UNITED STATES. 581 New York Life and Fire Insurance Co. v. Adams. special mortgage, which cannot, by the laws of Louisiana, be disregarded. Civil Code, art. 3253-5, 3249, 3273-4, 3277-8, 3297, 3360. The law of Louisiana, of 1817, did not attempt to operate on securities of this kind. The law of 1826 was passed two years subsequently to the mortgage, and could not affect it. In fact, a suit on the mortgage by the petitioners was then depending ; the premises were then in the actual custody of the marshal, and his proceeding against them had been enjoined, but the injunction did not operate as a discharge. By the application of the mortgagees, in March 1826, the circuit court obtained jurisdiction in rem, which has never been lost, and cannot be ousted. 2 Mart. (N. S.) 262 ; 2 Wheat. 290 ; 1 Gallis. 168 ; 4 Johns. Ch. 209. The judgment rendered by Judge Robertson will be considered as signed, if it ought to have been signed. When a plaintiff in an execution, has a clear right to proceed against a specific thing, he may insist on the sale of it, under an execution, without giving an indemnity. It is not *the demand of indemnity which gives a right to it, but there must be a substantial cause for apprehension in the marshal, to authorize L his insisting on it. It is no cause for indemnity, when an officer is asked to sell a tract of land specifically subjected to the process ; all that can be sold is the right of the party defendant, in the process ; and if this right is not valid, the sale injures no one. If there is a law of Louisiana which disqualifies a party who has become insolvent from appearing in court, it can have no operation in a court of the United States. Nor can the provisions of the insolvent law of Louisiana, which transfer all proceedings against insolvents in other courts into the parish court, or the district court of the state, operate on proceedings in the courts of the United States. If this could be done, the provisions of the constitution of the United States would be subverted. Clay, contra.—The attempt of the petitioners, in this case, is to exonerate themselves and their agent from the general laws of the land ; and to obtain for themselves peculiar privileges and advantages, to the injury of others. While the laws of Louisiana are applauded for their justice, their administration is assailed. It should also be observed, that the counsel for the petitioners has mistaken the tribunal before which the proceedings in cases of insolvents’ estates are entertained to any effective action. They commence before the parish judge, who is a notary ; before him, the preliminary proceedings are instituted ; but they are transferred to the district court of the place, a tribunal of high rank, and the judge of which has the highest talents and character. An inspection of the proceedings in the case of Wilson’s Heirs and of Adams, will result in a conviction that they are all regular. Nothing is to be seen in them of any other character, but the attempt of the agent of the petitioners to become the syndic of the insolvent; and after being disappointed in this, he returns to the court of the United States, and endeavors to counteract and overleap all those proceedings. A great and important general principle is to be examined in this case. What are the powers of the courts of the United *States in cases between citizens of different states. Certainly, in these cases, the L 83 law is the same for all parties. The law which is applied in the state courts, 10 cases between their own citizens, will be applied by the courts of the 381 583 SUPREME COURT New York Life and Fire Insurance Co. v. Adams. [Jan’y Union, in suits brought into those courts. The local and state laws will be enforced in both ; the same rules of justice will be maintained; for the establishment of courts of the United States was not to authorize the administration of different laws, but was, because it was considered, that in the national tribunals, greater confidence in their impartiality would prevail among suitors proceeding against citizens of a state to which they did not belong. If the purpose of establishing national courts had been other than these, it would not have been endured by any state in the Union. To apply a different, or a higher rate of justice, in the case of a non-resident, would not be permitted. If the law regulating the proceedings of syndics in insolvent cases, has established rights binding on the citizens of Louisiana, that law must be applied to citizens of other states, unless it shall interfere with some provision in the constitution of the United States. The insolvent law of Louisiana is in effect a bankrupt law. Although, under the acts of 1817 and 1823, the person of the debtor is not exempt from the power of the creditor, yet, by applying to the civil court, and having the signatures of two-thirds of his creditors in favor of the purpose, he may, by an order of the court, be exempt in his person from his past debts. It is then a bankrupt system, binding on the citizens of Louisiana, and on those of the other states. Various privileges are secured in favor of creditors by the laws of Louisiana, and preferences are given which cannot be disturbed. The highest security on real estate, is for the unpaid purchasemoney ; that of a vendor, on an estate sold by him. 10 Mart. 448. There are two modes of proceeding under the insolvent laws of Louisiana; one voluntary, the other compulsory. But when the cession under a voluntary subjection to the law is accepted by the judge, the cases, and proceedings in them, are afterwards the same. Adams made a voluntary application, but the judge accepted the cession, and all the provisions of the laws * , *were brought into full operation. It could not afterwards be with- J drawn. This case, referred to (10 Mart. 448, shows), that a mortgage creditor must come in and receive payment from the syndics, notwithstanding his mortgage. All the estate of the insolvent is divested ; impliedly, by the act of 1817 ; expressly, by act of 1823. That case shows, that a creditor having a lien cannot take the property and sell it, but must leave it to the administration of the syndics, and take payment of this lien through them. Marshall, Ch. J., asked, if there is any law which secures the rights of mortgage-creditors. Clay.—1The syndics act to prevent a scramble among the creditors for the effects of the debtor, and to take the property of the insolvent out of their hands. They take the property, make a tableau of distribution, regarding the lien-creditors according to their respective situations, giving each his particular rights in the distribution; and an equal distribution is made of the residue only, among creditors of equal condition. No matter what the lien or preference may be, it is upheld and respected in this distribution. Cited, the 35th section of the Act of 1817. By the law, if the mortgage-creditors insist on a sale, it must be made. There is then no difference as to the rights of those creditors, under the general and insolvent laws. There is, however, a difference in the result; as, if the property 382 1835] OF THE UNITED STATES. 584 New York Life and Fire Insurance Co. v. Adams. is sold by the syndics, there will often remain a balance in favor of the general creditors; if disposed of by the syndics, it is not permitted to be sold for less than its appraised value ; but if sold by the marshal, no such restriction prevails. 1 Mart. (N. S.) 495. The only change, then, made in the relation of debtor and creditor, is in the remedy, or rather in the mode of using it. The security of the lien-creditor is not impaired. It is not denied, that state legislatures have powers to vary the remedy, but not to affect rights. In the case before the court, the act of 1817 was in force, before this mortgage was given. The law in force, at the *time of a contract, ri! is incorporated in it, and the mortgage was taken with the knowl-edge that, in the event of the insolvency of Adams, the property pledged would be administered according to the insolvent law of Louisiana; and notwithstanding the lien, the rights of his other creditors would be regarded. What was the decision of this court at the last term? The decision was no more than that the judgment should be signed; merely that a ministerial act should be performed. The court had no right to look at the consequences of that act, nor did it. The question is then presented, what is this judgment which was signed by Judge Harper? Was it, or was it not, a judgment for the subsequent instalments ? A slight reference to the terms of the judgment, as it stood before Judge Robertson, and as, under the mandate of this court, it was perfected, before the present district judge, will satisfy this court, that it was absolute for the notes due in 1826, and prospective, as to the notes to become due, and as they became due, a judgment for the amount was to be entered, not was entered. It was not in the power of the judge to go beyond what was due. It is contended for the petitioners, that the transaction is the law between the parties; admit this, but yet it was not a judgment, it only gave a right to a judgment. It is the highest evidence of their rights ; but parties cannot erect courts. The provision is, that judgment shall be given as the notes become due. If the transaction is the law of the parties, look at it. It declares, that Adams shall go into court, from time to time, and confess judgment, and in his default, his successors or attorneys shall do it. This shows that judgment was not to be given without the action of the party. From a part of the contract, it appears, that judgment was to be entered as the instalments became due. The party cannot be allowed to postpone indefinitely the entry of the judgments. Judge Robertson directs, that whenever the sums become due, the judgment on each sum shall be entered; but the party has not done this; he waited five years, and then he came into court and asked for a judgment for the whole sum. This case is not like a bond with a penalty, the debt payable by instalments. In such a case, the judgment is given for the whole penalty, accord-lng to the terms of the bond. *Before the statute of William III., the party to a bond was bound for the penalty, and could only L obtain relief, in equity, on the payment of the sum actually due. Could an action of debt be maintained to recover the sum, prospectively to become due, by the judgment of Judge Robertson? It could not; for it was only a promise that judgment should be given, and no suit could be instituted for more than the actual amount of the judgment in 1826. The law of Louisiana is, that the party asking a judgment on a warrant of 383 586 [Jan’y SUPREME COURT New York Life and Fire Insurance Co. v. Adams, attorney, must make an affidavit of the debt, and that it is unpaid. This regulation was not complied with, in the case before the court; the affidavit does not state that the debt is due and unpaid. Law of Louisiana respecting affidavits, Old Civil code, 460, art. 1 ; 10 Mart. 222, decides this. It has been suggested, that the district judge should have amended the judgment, so as to include the additional sums. There was nothing to amend by. The party might entitle himself to the judgment for those sums, by complying with the forms required by the law, and the practice of the court. No case was made out before the district judge ; and the time which had elapsed since the first application for judgment, from 1826 to 1834, was properly to be inquired into and explained. The application was to give the judgment a retroactive effect ; and this was not warranted by the transaction, or by the law. If the rights of the parties are to be maintained only by the transaction, the modes of proceeding which it prescribes excludes others. Supposing the judgment could not be amended or extended, did the representative of the petitioners, Mr. Barker, present himself before the district court, with powers authorizing him to act. The power to confess judgment could not be conferred by any warrant, on the corporation. A corporation exists by its law of creation, and there is no authority in such a body to appoint an attorney in fact. In this case, Adams gave a power to Mr. Eckford, not to the corporation ; but the power under which Mr. Barker claimed to act was not derived under Mr. Eckford. It is a general power to collect debts, not given by the successors of Mr. Eckford, but derived from , the Mercantile insurance Company, who were the transferees of the -I debts due by Adams to the Life and Fire Insurance Company. It is also to be considered, that all the parties, the syndics as well as Adams, should have had notice. Adams had no existence as to this proceeding ; his insolvency prevented his interference ; the effect of the judgment on the rights of his creditors, represented by the syndics, was to be considered ; and notice of the motion for judgment should have been given to them. This the district judge thought necessary, and he thought correctly. It has been decided in Louisiana (12 Mart. 695), that entering a judgment on a power to confess one, is a judicial action. The whole matter upon which the judgment was to be entered, was to be examined. The power of attorney, the existence of the debt, the terms of the affidavit ; all these were to be looked to. The judge would be unworthy of his situation, if, without citing the parties interested, or giving them an opportunity to appear, he had proceeded, as he was asked to do by the agent of the assignees of the petitioners. It is not necessary to decide, whether this case can be taken out of the federal court, and placed in the district court of Louisiana, for the action of that court on the claims of the petitioners. The constitutional provision is sufficiently satisfied, when suit may be brought against the syndics. By the insolvent law, the syndics might be sued ; and this right to sue them was well known. Suits against syndics have been brought in the circuit court of the United States, The cage of Field and others v. United States, before this court at last term, was a suit against syndics (ante, p. 182). It is admitted, that there is a difficulty, when a suit has been commenced in a federal court, in transferring it, in consequence of the insolvency of the defendant, 384 1835] OF THE UNITED STATES. 587 New York Life and Fire Insurance Co. v. Adams. into a state court. This may be productive of differences between the state courts and those of the Union ; but it is one of those difficulties which result from our peculiar system of state and federal governments ; and it will be arrested and prevented doing evil, as many others have been, by the presiding spirit which has so often rescued the government of the United States from embarrassment. It has been stated to be strange, that after his insolvency, *Adams could not confess a judgment. This is the law, and it is the same in L England, in bankruptcy. The law of Louisiana takes away this faculty, and all the rights of the insolvent are transferred to the syndics. . The petitioners were not entitled to a new judgment, nor to an extension of that already entered, for they had not brought themselves within the rules of the court or the law on the subject. Will this court substitute themselves for the inferior court, and say this is a case for a mandamus? A mandamus, properly issued, operates mechanically on a judge. It operates physically, not on the mind of the officer. In the case of United States v. Lawrence, this court refused to usurp the power of the judge to decide. Will the court transfer themselves to Louisiana, and say that they will compel the entry of the judgment ? If this cannot be done, there remains the question, whether this court will undertake, in this state of things, on a petition for a mandamus, to set aside the laws of Louisiana, and say that a party who has placed himself under the insolvent laws of that state, shall be subjected to the process of the court of the United States ? If the district judge is to compel the marshal to execute the process, by selling the estate, this will be the case. The powers of a judge are judicial and ministerial. So are those of a marshal. These are judicial, when he summons a jury to decide whether property is liable to be seized under an execution. What is the action required from the judge, when he is asked to attach the marshal ? He is asked to decide one of the most difficult questions of conflicting laws, that can be presented ; whether the law of Louisiana shall give place to the law of the United States ? This is a judicial question of the highest order ; and this court is called upon to take it from the judge, and oblige him to compel the execution of the process by the marshal. Porter, against the motion.—The power given by Adams to confess the judgment was to be exercised, in his default, but it does not appear that he was called upon to enter it. The execution of the power, without a previous demand on Adams, or notice to him, was unauthorized and void. *The second objection to the execution of the power is, that it was r*gg9 given to Eckford, who is dead, and the agent of the plaintiffs *-derives no power from him ; Adams the principal has lost his standing in judgment, by his insolvency, and no one could act as his agent. An agent, Mr. Barker, who claims to be the agent of Adams, can exercise no powers which his principal could not exercise. By the decisions of the courts of Louisiana, a party cannot send a confession of a judgment into court and have it entered. It must be submitted to the judge for his consideration, and he, after an examination, musYsign it. Without bis signature, it is not a judgment. He acts by his judicial functions, and is not a mere ministerial agent. 9 Pet.—25 385 589 SUPREME COURT New York Life and Fire Insurance Co. v. Adams. [Jan’y The questions involved in this case are of great importance ; and their decision hy this court is looked for with great anxiety. When the execution against the property of Adams was put into the hands of the marshal, the property was in the hands of the syndics, by the cession made under the insolvent law. After discussion and examination in the district court, it was held, that the plaintiffs were to go into the state court for payment of their debt, undei* the proceedings of that court. This was not a transfer of the case from the court of the United States to the state court : but it was only deciding, that as the property was in the state court, there the plaintiffs should obtain payment of their lien, which was not impaired by any proceedings in the state court. If this court shall say, that the marshal shall take the property which has passed from an insolvent into the hands of syndics for distribution, it will subject the marshal to great difficulties. Cited, 2 Mart. 337. The statute of Louisiana of 1817 regulates the cession of goods and property of an insolvent debtor, and the act of 1826 (Laws of Louisiana 136) enacted, that the cession should be made immediately on the application of the insolvent for the benefit of the laws. Shall not Louisiana be permitted to say that property within, her own limits, shall by her laws pass to creditors by cession ; and that the judgments of the courts of the United States shall not interfere ? If, by the laws referred to, the property of insolvents cannot be *placed in the hands of the syndics, for J administration, and this without affecting the prior liens of a creditor ; no laws for the transfer of the property of creditors can be effectual. The proceedings in the district court of New Orleans show, that Mr Barker, representing the petitioners, endeavored to obtain the appointment of syndics ; and disappointed in this purpose, he turned round, and seeks to set the law under which he was desirous of acting, aside. He thus became a party to those proceedings, and was bound by them. This point has been settled by this court in the case of Clay v. Smith, 3 Pet. 411. Jones, in-reply, contended, that the constitution and laws of the United States, had guarantied to citizens of the United States the right to resort to the courts of the United States for the recovery of debts due to them ; and by no state laws, or state proceedings, could these rights be interfered with. The remedy for a wrong in the courts of the United States, is a part of the privilege secured by the constitution ; and the motives which induced the introduction of the provision into the constitution, establishes the exclusive powei’ of the federal tribunals in such cases. It was considered as securing an impartial administration of justice ; and the confidence which such a provision would necessarily produce, was one of the means by which the permanency of the government would be established. In the case before the court, the petitioners had a mortgage on the property of their debtor ; and it was one which, as it was executed before a notary, entitled the creditor to proceed, without notice to the debtor, by the via executiva, under the laws of Louisiana, and seize and sell the property, without notice to the debtor. Upon the issuing of this process, the creditors were interfered with by an injunction ; and after this, the “transaction ” was entered into which has been so frequently referred to, and is fully before the court. 386 1835] OF THE UNITED STATES. New York Life and Fire Insurance Co. v. Adams. 590 The entering into this transaction was not an abandonment of the rights of the petitioners ; it was no more than a suspension of their exercise, and the lien of the judgment and execution was not removed, but proceedings under it were postponed for the period stated in the transaction. When a creditor *takes a judgment in addition to his prior security, the * security is not avoided. The transaction, and the judgment entered L in 1826, were a judicial lien on the property of the debtor. They authorized a sale of the property, as soon as the period arrived which was fixed by the agreements of the parties, and were a grant of execution by a decree ; and this judgment, and the rights of the parties under it, cannot be disturbed. No inquiry can be made into the validity or legality of the judgment, in any other mode than by writ of error. All the process to enforce it, is given by the judgment. The transaction is equivalent to a decree of foreclosure. If the judgment upon it was interlocutory, was not the district judge bound to make it final ? Mr. Jones also contended, that there was no law of the state which deprived insolvents of their right to appear in a court of justice ; certainly, no law which prevented this in a court of the United States. The effect of such a rule would be, to take from the courts of the United States their jurisdiction over persons within reach of their process. Such a law would be against the constitution of the United States. He also contended, that the provisional syndic (and no other syndic existed when the execution was in the hands of the marshal) is but a depositary of the property of the insolvent. The syndic has no rights in the property, he has only an equity of redemption, and may divest the rights of prior lien-creditors, only by*paying off the incumbrances. In this view of the case, the action required of the district judge, when he was called upon to sign the judgment for the residue of the notes, was only to be ministerial ; the parties had previously adjusted all other questions, and the form of an entry of judgment, according to the rules of the court, was only required. The powers held by Mr. Barker, were full and sufficient for him to confess the judgment. He acted under the authority given by Adams to Mr.. Eckford, which extended to his successor, the president of the Life and Fire Insurance Company, who took his place after him. But if this was not sufficient, his authority under those who had a transfer of the debt due *by Adams, under the Mercantile Insurance Company, was com- L plete, and was ample. Marshall, Ch. J., delivered the opinion of the court.—The petition for a mandamus states, among other things, that Christopher Adams, of Iberville, in Louisiana, on the 16th day of January 1824, at New Orleans, executed and acknowledged before a notary-public, a mortgage of a plantation, called the Belle Plantation, in Iberville, with seventy slaves, for securing to the petitioners divers sums of money, amounting to 832,522.50; at different periods, the last payment to fall due on the 18th day of January 1829, all bearing interest at the rate of seven per cent, per annum. At the time of executing the said mortgage, sundry notes were also given for the payment of the same sums of money. In consequence of the failure of the said Adams to pay any part of the 387 592 SUPREME COURT New York Life and Fire Insurance Co. v. Adams. [Jan’y said debt, application was made to the honorable Thomas B. Robertson, then judge of the district court of the United States for the eastern district of Louisiana, for an order of seizure and sale, who granted the same, in the following words : “ Let the mortgaged premises, set forth and stated in the plaintiff’s petition, be seized and sold, as therein prayed for, and in the manner directed by law, subject to the payment of the debts of the plaintiff. Thomas B. Robertson, Judge U. S. Eastern District of Louisiana.” John Nicholson, the marshal, who seized the mortgaged property, and advertised the same for sale, was stopped by a writ of injunction, on which the following return was made : “ Received this writ of injunction, this 18th of March 1886, and served a copy thereof, and of plaintiff’s petition, on Ripley & Conrad ; on same day, released the property, at suit of Life and Fire Insurance Company of New York against Christopher Adams ; and returned into court, the 20th of March, instant.” On the 2d day of May 1826, the petitioners entered into a transaction with the said Christopher Adams, before a notary-public, in which it was stipulated, that the injunction be dissolved ; and in which the defendant agreed to confess judgment, and did confess judgment, on all the notes then due. *He further stipulated to confess judgment on the residue of ' J the notes, in the deed of mortgage mentioned, as they should respectively become due, “and in default of such confession of judgment, the said Christopher Adams did, by the said transaction, constitute and appoint Henry Eckford, president of the Life and Fire Insurance Company, or his successor in office for the time being, his attorney in fact, and irrevocable, in his name and stead, to appeal’ in said court, and cause judgment to be entered up against him, the said Adams, for each and every of said notes, with interest, as aforesaid, whenever the same shall arrive at maturity, as aforesaid.” And the said Adams further gave to the said Henry Eckford, or to his successor in office for the time being, attorney as aforesaid, full power of substitution in the premises. And the said Life and Fire Insurance Company, in consideration of such confession of judgment, and preserving all their liens, mortgages and preferences in and over the mortgaged premises, agreed to stay execution until the 18th day of January 1829, when the last note would arrive at maturity. It was further agreed, that this transaction should be entered upon the records of the court of the United States for the eastern district of Louisiana, as a decree of said court, and shall have all the force and effect as though it were entered up in open court. In pursuance of this transaction, a judgment was recorded in the said district court, on the 18th Qf May 1826 ; which the judge died without signing. The petitioners then transferred their interest in the said debt to Josiah Barker, in trust for the Mercantile Insurance Company of New York, with power to use their names in the collection thereof. In the instrument of transfer, the said Life and Fire Insurance Company constituted Josiah Barker, his executors, administrators and assigns, their true and lawful attorney and attorneys irrevocable, in their names, but to and for the use of the said Mercantile Insurance Company of New York, to pursue and enforce m all courts and places whatever, the recovery and payment of the said money. The honorable Samuel H. Harper, the successor of the honorable Thomas * B. Robertson, having refused to complete the said judgment of is $$ j predecessor, by signing it; a ^mandamus was directed by this cour , 388 1835] OF THE UNITED STATES. 594 New York Life and Fire Insurance Co. v. Adams. ordering him to do so, in compliance with which the said judgment was signed. The judgment is in these words : “ Life and Fire Insurance Company of New York v. Christopher Adams. In this case, the plaintiffs having filed in this court a transaction, &c., it is, therefore, ordered, adjudged and decreed, that in pursuance of said transaction, the injunction in this case shall be dissolved ; and it is further ordered, adjudged and decreed, that judgment be entered up in favor of the plaintiff, in pursuance of said transaction, for all the notes therein specified, which have become due and payable, with seven per cent, interest thereon, &c., to wit, the sum of $1500, &c. It is further ordered, adjudged and decreed, in pursuance of the transaction aforesaid, that whenever any of the notes mentioned in the said transaction as not yet arrived at maturity, shall become due and payable, that the judgment shall be entered up for the plaintiffs upon all and every of the said notes, as they arrive at maturity, &c. It is further ordered, adjudged and decreed, that there shall be a stay of execution, &c., until the 18th day of January 1829 ; and that if the amount of the judgment in this suit is not then paid, &c., that the lands, slaves and movable property described in the mortgage mentioned in the plaintiff’s petition, shall be sold according to law, to satisfy the judgment in the premises.” Application was, at the same time, made to the district court, to enter a further judgment for the notes which had become due subsequent to the 16th day of May 1826, which was refused. The petitioners insisted on their right to require a judgment for the whole sum, under the irrevocable power given to confess it; but the judge declared, that, without notice to the defendants, he would permit no further judgment to be entered. The petition states *t large the different views entertained by the judge and the petitioners on the application. At length the following rule was entered : “ Life and Fire Insurance Company of New York v. Christopher Adams. On motion of George Eustis, counsel for the plaintiffs, on p q *filing all the notes referred to in the transaction on file, it is ordered, *-in pursuance of the mandamus of the supreme court of the United States, requiring the honorable judge of this court to sign the judgment rendered in the premises, and to order execution to issue, that execution do issue for the whole amount of the judgment.” Under this rule, an execution was issued for the whole sum claimed on all the notes, without any direction that it should be first levied on the mortgaged property. On this account, the marshal, by order of the plaintiff’s attorney, returned it unexecuted, and a new execution was demanded. In consequence of the refusal of Judge Harper to enter judgment for the residue of the notes, Josiah Barker caused a paper to be read in open court, in which, as successor to, and as having entire control over, the said notes, and in virtue of full and irrevocable powers from the Life and Fire Insurance Company of New York, he did, in behalf of the defendant, Christopher Adams, by virtue of the compromise entered into between him and Josiah Barker, agent for the said Life and Fire Insurance Company, on the 2d of May 1826, confirmed by decree of this court, confess judgment on all the said notes ; which confession he requested might be entered on the cleik’s minutes. The judge refused to allow the entry, without notice to the opposite party; but offered to grant a rule requiring the defendants 389 595 SUPREME COURT [Jan’y New York Life and Fire Insurance Co. v. Adams. to show cause why the judgment should not be entered. This rule being declined, the judge permitted the confession to be filed, subject to all legal exceptions. An execution for the whole sum was thereupon issued, which was accompanied by a letter from Josiah Barker to the marshal, requesting him to give notice to Christopher Adams and to Nathaniel Cox, the provisional syndic of the estate of the said Adams, who had become insolvent, that he, the marshal, considered himself in possession of the property in virtue of a former seizure, and should proceed to sell the same; should the marshal refuse to do this, the marshal was required to seize the property and to sell it, by virtue of the execution then in his hands. Supposing, from the proceedings of the court in a similar case, in which also he was counsel, that the execution issued in this case would be quashed, and the said marshal having refused to proceed without indemnity against the estate of * . *Christopher Adams, which had been surrendered under the insol- ■* vent law of Louisiana, the said Josiah Barker requested the marshal to return this second execution. On the 30th of April 1834, a new execution was issued on the judgment of the 18th of May 1826, to be levied on the mortgaged property, in whosoever hands it might be found. The marshal refused to execute this writ, further than by giving notice thereof to Nathaniel Cox, the provisional syndic for the creditors of Christopher Adams ; whereupon, a petition was presented to the honorable Samuel H. Harper, praying the interposition of the court, by commanding the marshal to sell the mortgaged premises, without requiring any bond of indemnity ; or by granting a rule requiring the marshal to show cause why he should not be attached for contempt of the court, in disobeying or refusing to execute its mandate. The rule was granted before the time for returning the execution had elapsed, and was therefore discharged, whereupon the marshal made the following return : “May 1st, 1834. Gave notice of the seizure of Nathaniel Cox, Esquire, provisional syndic of C. Adams, the defendant, the property having been previously surrendered by him to his creditors, and accepted by the court of the fourth judicial district of the state of Louisiana, and placed under the charge and control of N. Cox, Esquire, as provisional syndic thereof. The further execution of this writ could not be effected. Returned, 19th of May 1834. John Nicholson, U. S. Marshal.” On the succeeding day, a new rule was awarded against the marshal, who appeared on the return-day thereof, and showed for cause against it, his return on the writ, as recited above. After solemn argument, the judge determined the return of the marshal, that he found the property in the hands of others, primd facie evidence that it belonged to others ; and that he should not require the marshal to take the responsibility of enforcing the execution, without indemnity. • $ t On the 27th of May, application was made to the judge, to *sign 5$ J the confession of judgment, filed by Josiah Barker in the name of Christopher Adams, on the 10th of March, subject to all legal exceptions, due notice of the filing thereof having been served on Christopher Adams and Nathaniel Cox; but the judge refused to sign the same, saying that it was not a judgment of the court. The petitioners, conceiving that they are entitled to have the execution, issued on the 30th of April 1834, enforced against the mortgaged premises 390 1835] OF THE UNITED STATES. 597 New York Life and Fire Insurance Co. v. Adams. by the marshal of the United States, and to have a further execution for the balance of their aforesaid claim, either by the authority of the aforesaid mandamus, or by having the aforesaid confession of the 10th of March last signed ; or by virtue of the original order of seizure and sale, or otherwise ; pray a further writ of mandamus, directed to Samuel H. Harper, judge of the district court of the United States for the eastern district of Louisiana ; and if necessary, also to John Nicholson, marshal of the said court; or otherwise direct such a course of proceeding as will secure the due execution of the mandamus heretofore granted by this court, and afford them such other relief as they may be entitled to in the premises. Judge Harper appeared by his counsel, and showed for cause against issuing the mandamus for which application was made : That in obedience to a mandamus issued by the supreme court of the United States, he did, on the 7th day of March 1834, sign a judgment entered in this cause by his predecessor in office, on the 18th day of May 1826, and directed that execution should issue thereon. This was a specific judgment for the amount of all the notes which had then become due, and which were enumerated in a transaction between the parties then committed to record. It was stipulated in this act of compromise, on which the judgment was entered, that the defendant, Christopher Adams, should confess judgment on each of the remaining notes as it should fall due; and in default of such confession, he consented that Henry Eckford, president of the Life and Fire Insurance Company, or his successor in office for the time being, should appear in court and cause judgment to be entered against the defendant. No confession of judgment has been entered, nor has any judgment been rendered on any one of the said notes. When the ^judgment of the 18th of May 1826, p598 was signed, Josiah Barker, agent for the plaintiffs, offered to confess L judgment in the name and on behalf of Christopher Adams, for the residue of the notes. The court refused to receive this confession, for the following reasons: The plaintiffs, instead of causing judgment to be confessed, in conformity with the stipulation contained in the transaction, appear to have abandoned their original suit. No step was taken until the 13th of April 1829, after all the notes had become due, when a new suit was instituted by the Mercantile Insurance Company of New York, to whom the claim had been assigned, to recover the whole amount due, including the judgment of the 18th of May 1826. The defendant filed an answer, charging the plaintiffs, among other things, with usury ; upon which they, on the 12th of January 1831, suffered a nonsuit; when, after this proceeding, the agent for the plaintiffs offered to confess judgment in the name of the defendant, no notice of this intended confession had been given to the defendant, and a rule upon him to show cause against the judgment, was declined by the plaintiffs. Had the person offering to confess judgment even been the regularly-constituted attorney of the defendant, there would have been, under all the circumstances of the case, some objection to receiving his confession, without notice. But he was not the regular attorney. In the transaction of the 2d of May 1826, Christopher Adams stipulated to confess judgment on all the notes as they should become due, ” and in default of such confession, he constituted and appointed Henry Eckford, president of the Life and Fire Insurance Company, or his successor in office for the time being, his attorney in fact, and irrevocable, in his name and stead, to appear in court and cause 391 598 SUPREME COURT [Jan’y New York Life and Fire Insurance Co. v. Adams. judgment to be entered up,” &c. ; and the said Adams further gave to the said Henry Eckford, president as aforesaid, or to his successor in office for the time being, attorney as aforesaid, full power’ of substitution in the premises, &c. Josiah Barker is not the substitute of Henry Eckford, nor his successor in office for the time being. The permission to file this paper, subject to all legal exceptions, did not convert it into a confession of judgment by the defendant, or his attorney, nor could the mere notice that such a paper was filed, add to its efficacy, there being no day fixed for contesting it. The transfer of the claim to Josiah Barker, *in trust for the Mer- J cantile Company of New York, does not substitute him for Henry Eckford, or his successor in office for the time being. If either the mortgage acknowledged before the notary, or the transaction of the 22d May 1826, had itself the force of a judgment, no mandamus would be required, to order the rendition of a new judgment; but these documents require judicial action to make them operative. It is a circumstance which ought to suggest, and which has suggested, circumspection in the proceedings to be taken in this cause, that though the judgment was recorded in May 1826, and Judge Robertson died late in 1828, and held several courts in the mean time, yet he never signed this judgment; nor was any application made to him for judgment on the notes which afterwards fell due, during his life, though they amounted to six or seven. In showing cause against a mandamus to compel the marshal to levy an execution on the mortgaged property, wherever it may be found, Judge Harper observes, that after the emanation of the execution, Josiah Barker addressed a petition to the court, stating many facts connected with the execution, and complaining that the marshal refused to enforce it, without being indemnified, and praying for a rule requiring him to show cause why he should not be attached for contempt in disobeying the mandate of the court. The rule was granted. The marshal returned, “ that he had given notice of seizure to Nathaniel Cox, provisional syndic of Christopher Adams, the defendant; the property having been previously surrendered by him to his creditors, and accepted by the court of the fourth judicial district of the state of Louisiana, and placed under the charge and control of Nathaniel Cox, as provisional syndic thereof ; the further execution of the writ could not be effected.” Accompanying this return was the following letter : “John Nicholson, Esq., marshal. Dear sir:—As counsel for N. Cox, syndic of the creditors of Christopher Adams, I am authorized to notify you, that any attempt to seize the property in his hands, at the suit of the *-^^e an^ Fire Insurance Company, will be resisted, and that you will J proceed therein at your peril. Respectfully, G. Stbawbbidge.” The court was restrained from entering into any inquiry in whom the property was vested, by the considerations, that the creditors who claimed it were not before the court, and could not be brought before it, on a rule upon the marshal. The trustee for the Mercantile Company of New York contended, that the property still remained in possession of the marshal, under the order of seizure granted by Judge Robertson ; but the court was of opinion, that such presumption would be extravagant, inasmuch as the injunction continued in force for more than eight years ; for, though dissolved in terms by the judgment of 1826, that judgment, by the laws of Louisiana, had no force, until it was signed in pursuance of the mandamus 392 1835] OF THE UNITED STATES. 600 New York Life and Fire Insurance Co. v. Adams. of the supreme court. In addition to this, it appears, from the return of the marshal, that the property was released on receiving the injunction. The judge also conceived, that by a fair construction of the transaction of the 2d of May 1826, the plaintiffs must be understood to have agreed to discontinue their suit, in consideration of the dissolution of the injunction ; as a prosecution of the suit, after the dissolution of the injunction, was not within the intention of the parties. He was also of opinion, that the property being found in possession of a third party, is primd facie evidence that it belonged to that third party ; but that this was a question which could not be investigated on a rule against the marshal, in the absence of the party interested. He was also of opinion, that the marshal, not being indemnified, and proceeding at his peril, ought to be governed by his own judgment; and would make himself personally liable to the creditors of Adams, if they should thereafter establish their right to the property ceded to them. This liability has been established by the supreme court of Louisiana against this very marshal, in which the court said, “ that if acting in his capacity as marshal, he wrongs a citizen of a state, he is individually answerable, and in her courts.” In another case, judgment was given against the same marshal, for the amount *of money made by him ri! on an execution, issued out of the district court of the United States, L under which he had seized and sold property in the hands of the syndic of the debtor. The judge added, that he had never thought it his duty to compel the officers of the court to perform acts for the benefit of others, which might work their own ruin. Counsel have given more precision to the general application of the petitioners, by presenting five separate and alternative prayers for a mandamus commanding a particular thing ; each application founded on the rejection of that which precedes it. The first is, for such an execution as that which was issued on the 12th of March 1834, at the instance of the plaintiffs, being an execution for the amount of all the notes secured by the mortgage and transaction in the petition mentioned ; to be levied on the mortgaged property ; but if not sufficient, then on the property generally of the said Christopher Adams, whereof he was owner on the 18th day of May 1826, into whose hands soever the same may have come. The applicant does not inform us, whether the execution is to be issued on the judgment entered hy Judge Robertson and signed by Judge Harper; or on the confession made by Josiah Barker, in the name of Christopher Adams, on the 10th day of March 1834. Judge Harper has shown for cause against an execution for the whole debt, on the judgment entered by Judge Robertson on the 18th day of May 1826, that the whole debt was not then due ; and that the judgment, in its terms, comprehends that portion of the debt only which was actually due. He shows for cause against any execution founded on the paper delivered by Josiah Barker, on the 10th day of March 1834, that Josiah Barker exhibited no power of attorney from Christopher Adams, and showed no right to personate him. That the court did not receive his confession as the confession of Christopher Adams, nor enter any judgment upon it. Of consequence, that act cannot warrant an execution of any description. The record, we think, verifies these statements. If the cause shown against a mandamus to issue such a writ of execu- 393 601 SUPREME COURT [Jan’y New York Life and Fire Insurance Co. v. Adams. tion as is asked, or the judgment in its present state be deemed sufficient, then the petitioners ask for a mandamus *commanding the judge J to amend such judgment; by extending the terms thereof, so as to make the same absolute upon all the notes and sums of money enumerated in the original transaction, &c. To extend the judgment to subjects not comprehended within it, is to make a new judgment. This court is requested to issue a mandamus to the court for the eastern district of Louisiana, to enter a judgment in a cause supposed to be depending in that court; not according to the opinion which it may have formed on the matter in controversy, but according to the opinion which may be formed in this court, on the suggestions of one of the parties. This court is asked to decide, that the merits of the cause are with the plaintiff; and to command the district court to render judgment in his favor. It is an attempt to introduce the supervising power of this court into a cause, while depending in an inferior court, and prematurely to decide it. In addition to the obvious unfitness of such a procedure, its direct repugnance to the spirit and letter of our whole judicial system, cannot escape notice. The supreme court, in the exercise of its ordinary appellate jurisdiction, can take cognisance of no case, until a final judgment or decree shall have been made in the inferior court. Though the merits of the cause may have been substantially decided, while anything, though merely formal, remains to be done, this court cannot pass upon the subject. If, from any intermediate stage in the proceedings, an appeal might be taken to the supreme court, the appeal might be repeated, to the great oppression of the parties. So, if this court might interpose by way of mandamus, in the progress of a cause, and order a judgment or decree, a writ of error might be brought to the judgment, or an appeal prayed from the decree; and a judgment or decree entered in pursuance of a mandamus might be afterwards reversed. Such a procedure would subvert our whole system of jurisprudence. The mandamus ordered at the last term (8 Pet. 291), directed the performance of a mere ministerial act. In delivering its opinion, the court said, “ on a mandamus, a superior court will never direct in what manner the discretion of an inferior tribunal shall be exercised ; but they will, in a proper case, require the inferior court to decide.” To order the district court to give judgment for the -• plaintiffs, is “ to direct in what manner its discretion shall be exercised.” Sufficient cause is shown against granting this prayer. In the event of this prayer being rejected, the court is asked to award a mandamus to the district judge, commanding him to consummate the interlocutory part of the said judgment, by entering and signing final judgment upon and for all the notes and sums of money mentioned in the transaction aforesaid as not being then due ; and thereupon to issue such execution, &c. This prayer does not vary substantially from its predecessor. It requires the same interference of the supreme court in the proceedings of the inferior court while in progress ; and the same direction how its discretion shall be exercised. It requires a direction to the district court to give judgment for one of the parties, and prescribes the party for which it shall be given. The cause shown against granting the preceding prayei’ applies equally to this. Should this last prayer also be rejected, the court is next asked to award a mandamus, commanding the district judge to compel the marshal duly to 394 1835] OF THE UNITED STATES. New York Life and Fire Insurance Co. v. Adams. 603 execute such process as may be issued ; notwithstanding the cession of the estate of the said Adams, and the appointment of a provisional syndic thereof. It is the duty of the marshal, to execute all process which may be placed in his hands ; but he performs this duty at his peril, and under the guidance of law. He must, of course, exercise some judgment in its performance. Should he fail to obey the exigit of the writ, without a legal excuse ; or should he, in obeying its letter, violate the rights of others, he is liable to the action of the injured party. In the particular case in which the creditor asks for a mandamus to the district judge, to compel the officer to seize and sell the property mentioned in the writ, that property is no longer in possession of the debtor against whom the process is directed ; but has been transferred, by law, to other persons, who are directed, by the same law, in what manner they are to dispose of it. To construe this law, or to declare the extent of its obligation, the questions must be brought before the court in proper form, and in a case in which it can take jurisdiction. This case, so far as it is before any judicial tribunal, is depending in a district court of the United States, and *perhaps, in a state court of Louisiana. The supreme court of the United States has no original -jurisdiction over it, and cannot exercise appellate jurisdiction, previous to a final judgment or decree, further than to order acts, purely ministerial, which the duty of the district court requires it to perform. This court cannot, in the present condition of the case, construe judicially the laws which govern it, nor decide in whom the property is vested. In so doing, it would intrude itself into the management of a case requiring all the discretion of the district judge, and usurp his powers. The mandamus cannot be granted as prayed. The fifth prayer asks a mandamus requiring the judge to compel the marshal to execute the writ of execution heretofore issued, on the 30th of April 1834, on the said judgment, for the amount of the notes of the said Adamci, due on the 16th of May 1826, notwithstanding the cession and other matters mentioned by the marshal in the return thereof. This prayer differs from that which preceded it only in the amount for which the execution is to issue. So far as respects the interference of the supreme court in construing laws not regularly before it, and controlling the discretion of the district court, they stand on precisely the same principle. The objections, therefore, which were stated to granting the fourth prayer, apply equally to the fifth. The court cannot grant a mandamus ordering the district court to perform any one of the specific acts which have been stated in the petition ; or in the more particular application contained in the statement presented by counsel. Though the supreme court will not order an inferior tribunal to render judgment for or against either party; it will, in a proper case, order such court to proceed to judgment. Should it be possible, that in a case ripe for judgment, the court before whom it was depending, should, perseveringly, refuse to terminate the cause; this court, without indicating the character of the judgment, would be required by its duty to order the rendition of some judgment: but, to justify this mandate, a plain case of refusing to proceed in the inferior court, ought to be made out. In Bx, parte Brad-street, 8 Pet. 590, this court said : “We have only to say, that a judge must .395 604 SUPREME COURT New York Life and Fire Insurance Co. v. Adams. [Jan’y exercise his discretion in those intermediate proceedings which take place * *^e^ween the institution and trial of a suit; and if, in the perform-J ance of this duty, he acts oppressively, it is not to this court that application is to be made. A mandamus, or rule to show cause, is asked in the case in which a verdict has been given, for the purpose of ordering the judge to enter up judgment upon the verdict. The affidavit itself shows that judgment is suspended, for the purpose of considering a motion which has been made for a new trial. The verdict was given at the last term; and we understand, it is not unusual, in the state of New York, for a judge to hold a motion for a new trial under advisement till the succeeding term. There is then nothing extraordinary in the fact, that Judge Conkling should take time till the next term, to decide on the motion for a new trial.” In the case now under consideration, no application is made for a mandamus directing the court generally to proceed to judgment. The petitioners require a mandamus ordering the judge to render a specific judgment in their favor. It is not even shown, that the case is in a condition for a final judgment; nor is it shown, that the judge is unwilling to render one. The contrary may rather be inferred, from his readiness to grant a rule on the defendant, requiring him to show cause why judgment should not be rendered. In a case of such long standing, where it is more than possible, the defendant might not be in court; where judgment is asked on a confession made by the agent of the plaintiffs, professing to be the attorney of the defendant; the judge may be excused for requiring that notice should be given to the defendant. The rule is discharged. McLean, Justice.—I concur with the opinion which has been delivered. At first, I was inclined to think, that, under the general prayer for relief, the court might award a mandamus, directing the district judge to enter a judgment in the case. Not that this court, on a mandamus, should direct the district court to enter a judgment in behalf of either party; but that, in the due exercise of its discretion, it should proceed to render a judgment in the case, in order that such judgment might be brought before - this court, for revision by writ of error. *But as there is no specific J prayer for a mandamus, on the ground, that the court has refused to give a judgment, I am content, as it involves a mere question of practice, to agree with my brother judges, that a prayer for this writ must point out specifically the ground of the application. Whatever effect the insolvent law of Louisiana may have, to divest the jurisdiction of a state court, where the property of a defendant is transferred to the syndic ; such cannot be the effect on the jurisdiction of a court of the United States. No state law, or proceedings under a state law, can divest a court of the United States of jurisdiction. And in this case, I can entertain no doubt, that the district court, having jurisdiction, may proceed to a final judgment. Whether an execution, issued upon such judgment, may be levied upon the property in the hands of the syndic, presents a question which depends upon very different principles. On consideration of the motion made in this case for a mandamus to he addressed to the honorable Samuel H. Harper, district judge of the United States for the eastern district of Louisiana, and of the arguments of counsel 396 1835] OF THE UNITED STATES. 606 Owings v. Hull. thereupon had, as well in opposition to, as in support of, the motion : it is now here ordered and adjudged by this court, that the mandamus prayed for be and the same is hereby refused, and that the said motion be and the same is hereby overruled. *Chaelotte Dye Owings and Feances T. D. Owings, Plaintiffs [*607 in error, v. James F. Hull. Evidence.—Judicial notice.—Presumption.—Agency.—Ratification. Mrs. 0. D. Van Pradelles, being in New Orleans, and about to sail for Baltimore, made her last will and testament, and appointed her sisters, residing in Baltimore, executrices of her will; at the time of her decease, she had real and personal estate, including some slaves, in New Orleans, and she left a number of children; she sailed from New Orleans, and was never heard of, after she left that place. The executrices, after some time, supposing her dead, proved the will in Baltimore ; and in 1816, gave a power of attorney to John K. West, of New Orleans, to receive all the moneys due the estate of their testatrix, and particularly, to cause such proceedings to be instituted, as might be necessary to effect a sale of the estate, and to give a deed for the same, and generally to perform all acts in the premises, judicially and extra-judicially, for the effectual settlement of the estate, &c.; West obtained letters testamentary from the court of probate, in New Orleans, authorizing him to collect the estate, and to do all lawful acts as attorney in fact of the executrices ; he sold the slaves belonging to the estate, to Mr. Hull, in February 1817, for $1800, by a bill of sale executed before a notary; and all the purchasemoney, except $450 paid to one of the children of the testatrix, was paid to him; and he, soon after, failed, without having paid over any part of the proceeds of the sale to the executrices ; this sale was communicated to Mr. Winchester, the attorney of the executrices, and by him to them. In 1826, a suit was brought in the parish court of New Orleans, by the children and heirs of Mrs. Van Pradelles, against Hull, according to the laws of Louisiana, for the delivery and possession of the slaves so sold ; in which suit, carried afterwards to the supreme court of the state, the slave swere decreed to the plaintiffs, upon the ground, that the sale was absolutely void, under the laws of Louisiana; as executrices can only sell, after an order of court, and by auction; and in this case, the requisites of the law were not complied with. Hull brought this suit in the circuit court, against the executrices, to recover from them the purchase-money paid for the slaves, and his expenses attending the same; the whole proceedings in the Louisiana suit, and the evidence in the same, were read to the jury by agreement, subject to all legal exceptions. The defendants excepted to the reading in evidence of the record in the case of the Heirs of C. D. Van Pradelles v. Hull, as not evidence in the present suit, except as to the judgment; that is, the pleadings and proceedings on which the judgment was founded, and to which, as matter of record, it necessarily refers. This objection was well taken; the suit was res inter alios acta ; and the proceedings and judgment thereon, were no further evidence, than to show a recovery against Hull by a paramount title. A copy of the bill of sale of the slaves, from West to Hull, on record in the notary’s office in New Orleans, was offered in evidence; no evidence to account for the non-production of the original was offered by the plaintiff; but, by the laws of Louisiana, copies of such notarial acts are evidence, the *original always remaining, by the law of Louisiana, in the office of the r*gQg notary: Held, that the circuit court was bound to take judicial notice of the laws of L Louisiana; and that the copy being evidence by those laws, was evidence in this case. The circuit courts of the United States are created by congress, not for the purpose of administering the local law of a single state alone, but to administer the laws or all the states in the Union, in cases to which they respectively apply; the judicial power conferred on the general government, by the constitution, extends to many cases, arising under the different states ; and this court is called upon, in the exercise of its appellate jurisdiction, constantly to take notice of and administer the jurisprudence of all the states. That jurisprudence is, then, in no just sense, a foreign jurisprudence, to be proved in the courts of the United States, by the ordinary modes of proof by which the laws of a foreign country are to be established ; but it is to be judi- 397 608 SUPREME COURT [Jan’y Owings v. Hull. cially taken notice of in the same, as the laws of the United States are taken notice of in those courts.1 A copy of the letters-testamentary, granted by the parish court of New Orleans, was proved by the oath of the clerk and register of the court of probates, to be a true copy of the original, and that he could not send the original, which was on file in the court of probates. This is the best evidence which the nature of the case'admits of. The letters and accounts of J. K. West, the attorney in fact of the executrices, transmitted, by him to Mr. Winchester, their attorney in fact, were legal evidence in the circuit court. In order to recover against the executrices, on this point, the plaintiff should have proved, that the sale of the slaves made to him by West, was in conformity with the laws of the state of Louisiana, and, subsequently to such a sale, a recovery of the slaves from him. Every authority given to an agent or attorney to transact business for his principal, must, in the absence of any counter-proof, be construed to be, to transact it according to the laws of the place where it is to be done; a sale of slaves, authorized to be made, in Louisiana, by an executrix, must be presumed to be intended to be done in the manner required by the laws of that state to give it validity; and the purchaser, equally with the seller, is bound, under these circumstances, to know what the laws are, and to be governed thereby; the law will never presume that parties intend to violate its precepts. This is not the case of a general agency created by persons acting en autre droit. The purchaser was, therefore, bound to see whether the agent acted within the scope of his powers; and at all events, he was bound to know that the agent could not, in virtue of any general power, do any act which was not in confirmity with the laws of Louisiana; the principals could never be presumed to authorize him to violate those laws, and the purchaser, purchasing a title, invalid by those laws, must have purchased it with full knowledge. A ratification of the unauthorized acts of an attorney in fact, without a full knowledge of all the facts connected with those acts, is not binding on the principals; no doctrine is better settled, on principle and authority, than this—that the ratification of the act of an agent, previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts; if the material facts be either suppressed or unknown, the ratification is invalid, because founded on mistake or fraud. * *Error to the Circuit Court of Maryland. The facts of the case, J as stated in the opinion of the court, were : “ The original suit is an action of assumpsit, brought by the defendant in error against the plaintiffs in error (the original defendants) ; the declaration containing the money counts, an insimul computassent, and a special count, as for a deceit in the title upon a sale of certain slaves. Upon the trial, under the general issue, the facts appeared as follows : Mrs. Van Pra-delles, a sister of the plaintiffs in error, being at New Orleans, in July 1813, made her will, describing herself to be of Baltimore county, in the state of Maryland, and thereby bequeathed all her estate, equally, among her children named in the will, and appointed the plaintiffs in error, executrices of her will. She immediately after sailed from New Orleans, bound, as is supposed, for Baltimore ; and has never since been heard of. In May 1815, the plaintiffs proved the will in the orphans’ court of Baltimore county, and took administration of the estate. The property of Mrs. Van Pradelles, at New Orleans, consisted of real and personal estate, and, among other things, of some slaves; and in January 1816, the executrices gave a power of attorney to John K. West, of New Orleans, to receive and give receipts, 1 That the courts of the United States will take judicial notice of the laws of the several states, is abundantly settled by authority. Pennington v. Gibson, 16 How. 65; Grilling v. Gibb, 2 Black 519 ; Cheever v. Wilson, 9 Wall. 108; Junction Railroad Co. v. Bank of Ashland, Id. 398 226, and numerous decisions in the various circuit courts. So also, the state courts will take judicial notice of the laws of a sister state, wherever the proceedings are reviewable by the supreme court of the United States. Ohio v. Hinchman, 27 Penn. St. 479. 1835] OF THE UNITED STATES. 609 Owings v. Hull. &c., for all the goods, &c., belonging to the estate, to receive all sums of money, &c., and particularly, 1 to cause such proceedings to be instituted as may be necessary to effect a sale of the whole real and personal estate of which C. D. Van Pradelles, the testatrix, was seised or possessed, at the time of her death, and to execute, &c., a good and sufficient deed, &c., in the name of the executrices, for the purpose of transferring all the right and title of the heirs of the testatrix, therein or thereto, to the purchaser of said estate ; and generally, to do, negotiate and perform all other acts, matters and things in the premises, that circumstances may require, as well judicially as extra-judicially, for the effectual settlement of the estate, &c.’. West, in January 1817, obtained from the court of probates of the parish of New Orleans, letters-testamentary, authorizing him to collect the goods and effects of the testatrix, and to make a just inventory thereof, and to do all other lawful acts, as attorney in fact of *the executrices. In February * 1817, West sold the slaves in question, belonging to the estate, to t the defendant in error, for Si800, by a bill of sale, duly executed before a notary in New Orleans; $1350, part of the consideration-money, was duly paid to West, who afterwards failed, in 1819 ; but it did not appear in the evidence, that any part of the money had ever come to the hands of the executrices ; $450 were, after the failure of West, received by Mrs. Donaldson, one of the children and devisees of Mrs. Van Pradelles. The sale was communicated to Mr. Winchester, the attorney of the executrices, and by him to the- latter ; and the correspondence between Winchester and West was stated in the record. In 1826, a suit was brought in the parish court of New Orleans, by the heirs of the testatrix, against Hull, according to the laws of Louisiana, for the delivery and possession of the slaves so sold, and their offspring ; upon which, such proceedings were had, that a recovery was decreed to the plaintiffs in that suit, by the supreme court of the state, upon the ground, that the sale of the slaves was absolutely void, because, by the laws of Louisiana, executrices can only sell, after an order of court, and by public auction, and not by private sale ; and that here there was no order of court, nor sale at auction, but a sale by private contract.” The plaintiff, to support the issue on his part, offered in evidence the record of the proceedings in the parish court of the city of New Orleans, in the case in which the children and heirs of Mrs. Van Pradelles were petitioners, against James F. Hull, for the recovery of the slaves sold to him by John K. West; which proceedings were certified according to the provisions of the act of congress. This record contained a duly-certified notarial copy of the act of sale of the slaves, dated 27th of August 1817, by John K. West, attorney in fact of the executrices of Mrs. Van Pradelles, to J ames F. Hull. The original, of which this was a copy, was the notarial register of the sale, recorded by the notary, and in his possession, according to the laws of Louisiana. The record also contained certain depositions, taken and used as evidence in the cause ; and documentary proof, such as the letters of J. K. West to J. F. Hull; J. F. Hull to J. K. West; letters from G. Winchester, the counsel of the *executrices of Mrs. Van Pradelles, and afterwards ri{ their attorney in fact, to J. K. West, on the subject of the estate of L the testatrix ; powers of attorney from the executrices to J. K. West, and Mr. Winchester ; a copy of the petition of J. K. West, to the court of pro-399 311 SUPREME COURT [Jan’y Owings v. Hull. bates of New Orleans, for letters of executorship, and the order of the court thereon, and the letters-testamentary granted on the said petition ; the accounts of J. K. .West, with the executrices ; the correspondence of Mr. Winchester with Morgan, Dorsey & Co., on the affairs of West, after his failure ; and the proceedings of the supreme court of Louisiana, on the appeal of J. F. Hull from the parish court. The plaintiff in the circuit court also gave in evidence, a commission issued to New Orleans and executed there, containing the examination of Martin Blache, register of wills in and for the parish of New Orleans, and ex officio clerk of the court of probates ; with a copy of the original power of attorney to John K. West from the executrices, deposited in the court of probates; under which power of attorney, John K. West had acted in the premises. The defendants objected to their admissibility, and presented the following objections, which were overruled by the court. 1. That the record in the case of Donaldson v. Hull, in the parish court of New Orleans, is not evidence in this cause against the defendants, except as to the judgment of the court in Louisiana. 2. The copy of the original bill of sale, on record in the notary’s office, is not evidence, unless the plaintiff accounts for the non-production of the original. 3. That to make the act of sale evidence, it must appear, by the laws of Louisiana, properly and legally proven, that the original act of sale, of which it purports to be a copy, is in the custody of a public depository, and cannot be adduced in evidence. 4. The depositions and documentary proof contained in the record, in the cause of Donaldson v. Hull, are not evidence against the defendants in this cause. 5. That the papers referred to in the testimony of Martin Blache, purporting to be letters-testamentary granted by the court of probates to John K. West, are not legal evidence in this case against the defendants. *6. h The evidence of Mr. Winchester, with regard to the letters, and the account of Mr. West, transmitted by him, are not admissible in evidence. And the defendants by their counsel, offered the following prayers : 1. The defendants, by their counsel, prayed the court to direct the jury, that there is no evidence in the cause to show that John K. West had any authority from the defendants in this cause, to effect a sale of any property belonging to the estate of their testatrix in Louisiana, except in conformity with the laws of said state ; and that, unless the plaintiff shows a sale to the plaintiff Hull, by West, in conformity with those laws, and a subsequent recovery from Hull, he is not entitled to recover. 2. The defendants, by their counsel, prayed the court to direct the jury, that unless they believe that John K. West strictly complied with the special instructions given him by the defendants, in the power of attorney of January 30th, 1816, and caused such legal proceedings to be instituted as were necessary to effect a sale of the personal estate of which their testatrix died possessed in Louisiana, and, under such legal proceedings, made sale of certain slaves, being part of the said personal estate, to J. F. Hull, the plaintiff in this cause, and the said slaves were subsequently recovered from the said Hull, that the plaintiff is not entitled to recover. Thereupon, the plaintiff’s counsel, on their part, contended and insisted, that the commission and the return referred to were legal and competen evidence, to prove a recovery of the slaves from the plaintiff, by due course of law, for a defect of title in the defendants, and John K. West, then 400 1835] OF THE UNITED STATES. 612 Owings v. Hull. agent and attorney, and of the plaintiff, who claimed under the said defendants and their said agent as aforesaid. And also moved the following prayers to the court : 1. The acts of John K. West, relative to the sale of certain slaves to the plaintiff in this case, in Louisiana, which were made known to the defendants, and were assented to, and acquiesced in by them, are binding upon the defendants, as West’s principals, whether those acts did or did not conform to a letter of attorney previously given by the defendants to West. 2. The accounts furnished by John K. West to the defendants, *and retained by them, and no item objected to therein, ri. except the charge of five per cent, commissions, are proper and legal L evidence of the nature and particulars of the transactions between West and the defendants, so far as these transactions are therein detailed, except as to the charge for commissions. 3. The letters of George Winchester, written by the direction and with the approbation of the defendants, to West, and to Morgan, Dorsey & Co., and by them respectively received, and the instructions given to Winchester by the defendants, and by him communicated to West, are proper and legal evidence in this case. And thereupon, the circuit court gave the following opinion : “ The action in this case was brought to recover a sum of money, paid by the plaintiff, for certain slaves purchased by him of John K. West, attorney of the defendants, as executors of Mrs. Van Pradelles, a sister. This sale was declared void by the supreme court of the state of Louisiana, where the sale was made, for reasons stated in the opinion of the court ; that the sale was made without an order of court, and was not made at public auction. The counsel for the defendants contend, that, as the sale was not made according to the laws of Louisiana, and was adjudged to be void by the court of that state, the proceedings of the attorney were void for that reason ; and that West, being a special agent, did not pursue the instructions of his constituents, but acted contrary to them. The counsel for the plaintiff insists, that the instructions of the defendants to their attorney were pursued ; and that, whether they were special or general, they were ratified by the defendants, and therefore, binding on them; and that the plaintiff in this suit is entitled to recover’ the money paid by him for the slaves thus sold. Whether an agent has a general, or only a special authority, is properly matter of evidence, for the consideration of a jury. If an agent exceeds his authority, or if he acts without authority, if the employer subsequently acquiesces in, or approves his conduct, he is bound by it; and a small matter will be evidence of such assent. And if, with a knowledge of all the circumstances, an employer adopts the acts of his agent, *for a moment, he is bound by them. But the great principle in this cause, is this—that where one of two innocent persons must suffer, by the fraud or act of a third, he who enabled that person, by giving him credit, to commit the fraud, or to do the act, ought to be the sufferer. In this case, it does not appear by the evidence given, that West, the attorney, had or had not taken letters of administration on the estate of Mrs. Van Pradelles. The fact is not noticed in the opinion of the court. The court of Louisiana declare the sale void, because made without an order of the court, and not at public auction. We know, that in Maryland, aftei’ letters are granted, the executor or administrator, in many cases, cannot sell slaves, without an order of court. This court will not presume that letters of administration were granted to the 9 Pet.—26 401 614 SUPREME COURT. [Jan’y Owings v. Hull. attorney ; much less will they presume that they were not granted. The course of proceeding in the courts of Louisiana, is according to the principles of the civil law ; in our state, it is different. With these indications of the opinion of the court, the jury are instructed, that if they believe, from the evidence, that the acts of John K. West, the attorney of the defendants, were made known to them, and were assented to and acquiesced in, they are binding upon them, whether the acts did or did not conform strictly to the letter of attorney previously given by them to West. This opinion of the court is deemed a sufficient answer to all the prayers made by counsel for plaintiff and defendants.” To this opinion of the court on the said prayers, and the refusal of the court to sustain the objections so made by the defendants’ counsel, exceptions were taken. The defendants, by their counsel, objected to the admissibility in evidence of the record from the parish court, in and for the parish and city of New Orleans, in the state of Louisiana, annexed to the commission, for any purpose, on the ground of its not being authenticated according to law ; but the court overruled this objection. The defendants’ counsel excepted. And the defendants further prayed the direction of the court to the jury, that if they should be of opinion, from the evidence, that the defendants $ i did ratify the said sale of said *negroes, yet if they should be of J opinion, that West did not, before such ratification, apprise the defendants of the fact that letters of administration were never taken out by him in Louisiana, upon the estate of Mrs. Van Pradelles ; and of the fact that, by the laws of Louisiana, the executrices, the defendants, never could have claimed any property in the said negroes so sold ; and that the defendants, in ignorance of the existence of these facts, did ratify said sale ; then, such ratification being made without a full knowledge of all circumstances material for them to know, before they made such ratification, is not binding upon them. The court said: “ This prayer not arising from the facts of the case, the court refuse to grant it. But the court are of opinion, that if the jury should believe from the evidence, that the proceedings of their attorney were ratified by them, it is not material, whether they knew or did not know, that West had not taken out letters of administration on the estate of the testatrix.” To which opinion, and to the refusal of the court to grant said prayer, the defendants, by their counsel, excepted. The defendants prosecuted this writ of error. The case was argued by Johnson, for the plaintiffs in error ; and by Williams, for the defendant. Johnson contended, that the circuit court erred : 1. In overruling the objections made by the defendants below to the written evidence offered by the plaintiff. 2. In refusing the instructions asked by the defendants’ counsel. 3. In giving the instructions which were given to the jury. After a particular reference to the matters contained in the record of the proceedings of the court of Louisiana, Mr. Johnson insisted, that the contents thereof could not be evidence in this case. The defendants below were not parties to it; they had no notice from the plaintiff that the proceeding was instituted, and that they would be affected by the result. If they knew of the suit, it was not by such a knowledge of it, that they became parties to it, or could be bound by it. Nor does it appear, that a notice of the suit, 402 1835] OF THE UNITED STATES. *616 Owings v. Hull. and of claims upon the attorney of the defendant in the suit, *by Mr.. Hull, was given to him, with a view to the ultimate responsibility of his constituents. Although such a notice would not have had any legal effect, yet its absence makes the claim to introduce the record in the circuit court still less entitled to consideration, and entirely denuded. West was the special agent of the plaintiffs in error; his powers were created, and their purposes declared, in the letter of attorney which was sent to him. That power was filed in the office of the clerk of the probate court of New Orleans, and could and ought to have been seen by Mr. Hull. As it gave no authority from the executrices to proceed, but under and in conformity with the laws of Louisiana in reference to the estate of the testatrix ; so it gave no power to him to appear for them in actions for a neglect or breach of those laws by him, or to bind them by a mis-execution of the power, or to answer the consequences of such abuse of it. The acts of JVest were, then, so far as they could affect the plaintiffs, as those of an entire stranger to them; and the record of the proceedings which was admitted in the circuit court, had no other principle of law to sustain its admission, than would support a claim to the introduction, as evidence, of the record of the proceedings in a suit between any other parties, and in any other court or country. As a judgment of the parish court, and of the supreme court, by which Mr. Hull was deprived of the slaves he obtained from West, the record might have been admitted in evidence, but nothing more. Not a portion of the other parts of it were legally in the case. The testimony taken in one trial between parties, is not evidence in a succeeding trial between the same parties, much less is it evidence between other parties. It is res inter alios acta. The authentication of the act of sale, accompanied with the testimony of the clerk of the court of probates, was not sufficient. The original should have been produced; or it should have been proved, that it could not be produced, and must remain with the notary, upon some rule or principle proved to the court. Nor could it be evidence, if the original had been offered. It was an act done by West, out of, and unauthorized by, the power of attorney which he held. It was not an act within the scope of his authority, but was a plain violation of it. *Nor can the introduction of this evidence be sustained, on the ground, that the acts of West were adopted by the plaintiff s’ in error. Before this could be, it should have been shown, and it was not shown, that they had full knowledge of all those acts, and of every circumstance connected with them. If it had been proved, that the plaintiff in error knew that in the execution of the power under which West acted, he had violated, instead of conforming to, the laws of Louisiana; that the act of sale was not such as was permitted by those laws, and that, in reference to slaves so situated, a sale could only be made by auction; and with this, and a full knowledge of every other fact, they had ratified and adopted all that had been done, the case might have stood differently. The ruling of the court, that the defendants in the circuit court were bound by the acts of West, was contrary to the established principles of law. They did not know them ; they received no part of the money produced by them ; they were done without authority. Cited, 5 Johns. 58-9 ; Cro. Jac. 403 617 SUPREME COURT [Jan’y Owings v. Hull. 468 ; 1 Pet. 246; 3 Ibid. 69, 81 ; 7 Wheat. 290 ; Paley on Agency 164,169; 2 Kent’s Com. 278. Williams, for the defendant.—Had West authority to sell the slaves, part of the estate of Mrs. Van Pradelles ? This authority is shown by the letter of attorney ; by the correspondence of Mr. Winchester; by his accounts furnished to the executrices, his constituents : all of which testimony is independent of the record of the proceeding in the courts in New Orleans. That he sold the slaves, is also proved by evidence out of that record ; by his correspondence; by the act before the notary; by his accounts; and by the correspondence of Mr. Winchester with Morgan, Dorsey & Co. Has there been a recovery of the slaves from Mr. Hull, by parties having a title superior to the vendors ? This is established by the record from New Orleans. The parish court appears to put the right of recovery upon the ground that, as Mrs. Van Pradelles was presumed to be alive, and her children were entitled to be in provisional possession of her property, the slaves could not be rightfully sold. The supreme court, while they seem # to imply, that no valid *sale could be made of the property, appear J to place the right to recover it, on the ground, “ that the sale was made without an order of court, and not by public auction.” This, however, is manifest, that neither the defendants, nor their agent, did convey a valid title to the property to Mr. Hull ; either, because a good one could not be made by them ; or, because the agent did not accompany his sale with the proper formalities. So that the vendors, or their agent, have received the vendee’s money, without a valuable consideration in exchange. A vendor is always held, in sales of personal property, impliedly to warrant the title. 2 Kent’s Com. 478, and the authorities there cited; Flotte v. Aubert, 2 Orleans T. Rep. 329 ; 2 Bl. Com. 451; 3 Ibid. 166. Here, the act of sale before the notary-public contains an express warranty of title. To the objections urged by the defendants to the evidence offered by the plaintiff, it is answered—1. The record from New Orleans is only relied on to establish a recovery of the slaves from the vendee, for defect of title in him, and consequently, in those from whom he purchased. 2. The original act of sale is shown to be a part of the records of a public officer—a sworn copy is, therefore, the best evidence which can be afforded or required. 7 Pet. 85. 3. This court will take notice, officially, that nota-ries-public in Louisiana, not a foreign country, are public officers, without further evidence. 2 W. C. C. 449. 4. The depositions and documentary proofs included in the record, are not insisted on, as evidence for the plaintiff ; nor are they requisite for him, in order to maintain this action. 5. The letters-testamentary, or authority granted to West, are proved by Blache’s testimony. This proof, however, is not essential for the plaintiff’s case, as his authority is otherwise sufficiently established. 6. Mr. Winchester’s letters are most clearly competent and legal evidence ; he proves his appointment as agent and attorney of the defendants, and his authority to write the letters referred to. Of course, his acknowledgment of the receipt of West’s accounts affects them with his knowledge and acts. $ As to the first exception of the defendant in the circuit court. J 1. To the assumption on the part of the defendants, that *there is 404 1835] OF THE UNITED STATES. 619 Owings v. Hull. no evidence to show that West had any authority to make sales of the property of their testatrix, except in conformity with the laws of Louisiana are opposed the instructions of their counsel, Mr. Winchester, in his letter to West, of the 13th of November 1816, wherein, after giving specific directions to sell the several descriptions of property, and especially, that the negroes were to be sold on a credit of three and six months, he adds : “ but it is the wish of the Misses Owings, that you should consider yourself at liberty to exercise your own discretion, as you may think best, under existing circumstances; and whenever you may think it most conducive to the interest of those concerned, to deviate from the above instructions.” And in Mr. Winchester’s letter to West, of the 14th of July 1817, wherein he acknowledges the receipt of the copies of the correspondence between West and Hull, relative to the sale of the slaves in question, he adds, “ the executrices are satisfied with all you have done towards a settlement of the estate ; and relying confidently on your friendly exertions in their behalf, have only to add, generally, that whatever, under existing circumstances, may seem best in your judgment to be done with the estate, either real or personal, or with any part of it, they will approve and sanction.” In these letters, it will be perceived, there is no reference to the laws of Louisiana, as furnishing guides to regulate the sales by West. 2. It is manifest, by the act of sale, that West supposed himself to be acting within the terms of, and according to his instructions, as contained in the letter of attorney to him, of the 30th of January 1816. And it is no fault on the part of the plaintiff, if West did not conform himself to his instructions. He was the agent of the defendants, and not of the plaintiff. But whether he did, or did not, so conform himself, in the sale of the slaves ; everything which he did do in regard to that sale, was known and acquiesced in, and ratified by the defendants. Such knowledge and ratification are proved by Mr. Winchester’s letters and testimony. As to the second exception. Neither in the court below, nor in the points filed by the plaintiffs in error, is the defect in the authentication of the record pointed out. It will be observed, that it does not purport to be a record of the supreme court, but of the parish court *for the parish and city r*/»9n of New Orleans. And all the legal formalities, required by the act of the 26th of May 1790, appear to be complied with. Moreover, the transcript of the record offered in evidence by the plaintiff, is a part of the testimony taken under the first commission ; and it is proved by the witnesses, examined under that commission, to be a true copy of those legal proceedings. 2 Cranch 238. The third exception of the defendants below. There are no facts in the case whereon to found this exception. 1. It would seem, that the proper authority was taken out by West, to enable him to act as the attorney of the defendants. 2. The want of title in the defendants in the property, which they authorized and directed West to sell, was a matter of law which they were bound to know, and not a question of fact. 3. It does not appear, from the evidence, that the defendants were ignorant of any circumstances material for them to know, in this transaction. 4. If the attorney and agent of the defendants had been guilty of any fraud or neglect towards them, but in which the plaintiff had no participation, they must suffer the consequences, and not an innocent third party. 5. The ignorance of a vendor, 405 620 SUPREME COURT [J an’y Owings v. Hull. that his title to personal property sold by him is defective, affords no defence against the vendee’s action upon an implied, or upon express, warranty of title. 6. The consequences are the same to a vendee, whether the vendor knew, or did not know, of his defect of title. The former has parted with his money, without any equivalent; and the vendor’s ignorance in this respect cannot entitle him to retain money, without consideration. On the points submitted by the plaintiffs in error, Mr. Williams argued: That the record from New Orleans was legal and competent evidence to prove the recovery of the slaves by a paramount title. The record is relied on for this purpose only; and if such judicial recovery is not the only legal evidence to establish such a fact, it is clearly the most proper and conclusive evidence. To the demand for a restoration of the slaves, the purchaser *6211 drives the party claiming to a suit, and the defendants have *notice J of its pendency; their agent and attorney at New Orleans is a witness in the cause; it is decided against the purchaser; he prosecutes an appeal to the supreme court; and the restoration is only submitted to, under the mandate of tribunals whose commands were irresistible. Authorities can scarcely be required to justify such conduct, and to maintain the right to recover under such circumstances. Cited, Fenwick v. Forrest, 5 Har. & Johns. 414-15 ; 6 Ibid. 415-16 ; Dimond v. Dillingslea, 2 Har. & Gill 264; Clarke v. Carrington, 7 Cranch 308, 322 ; 1 Johns. 517 ; 13 Ibid. 224. Notice to the agent is notice to the principal; 2 Saund. Plead, and Evid. 736. On the prayers of the plaintiff below, in the defendants’ first exception, it was contended: 1. The acts of West, known and assented to by his principals, are binding upon them ; whether those acts did or did not conform to the previous letter of attorney. Cited, 1 Esp. 112, and authorities ; 4 Ibid. 114'; 1 Saund. Plead, and Evid. 53, Admissions ; 2 Ibid. 734, 736, and authorities ; Paley’s Agency 143, 249, 162-3 ; Long on Sales 224; 2 T. R. 189 n.; 4 Bing. 722 ; 2 H. Bl. 618 ; Cairnes n. Bleecker, 12 Johns. 300; 13 Ibid. 367 ; 13 Petersd. 723—4, Authorities, 744 ; 9 Cranch 153, 159 ; Pet. C. C. 64, 72. Liabilities of agents to principals discharged, by acquiescence in their acts. 1 Johns. 110 ; 2 Ibid. 424 ; 1 Caines 526. Principal liable for the misconduct of his agent. 2 Liv. Prin. and Agent 207, 214, 226, 227 ; 13 Petersd. 724, 727-9. Master liable for contracts entered into by the agent, although unauthorized by him, if the consideration comes to the master’s use. 2 Liv. Prin. and Agent 196-8 ; Long on Sales 221 ; 3 Esp. 214 ; 2 Kent’s Com. 631 ; 9 Barn. & Cres. 78. 2. The accounts furnished by West, and received and retained by the defendants, and not objected to, are evidence against them. Cited, Freeland v. Heron, 7 Cranch 147, 151 ;,1 Esp. 376, and note; Pet. C. C. 21-2. 3. The letters of Mr. Winchester, written with the knowledge and by the direction of the defendants, containing instructions, &c., are the acts of the defendants, and proper and legal evidence against them. Cited, 2 *6221 Evid. 60, &c.; 12 Wheat. *469 ; 7 Har. & Johns. 108 ; Pet. J C. C. 21—2 ; 4 Taunt. 511. His knowledge is their knowledge. 11 Wheat. 87 ; 13 Petersd. 728, &c. The circuit court substantially adopt the views of the plaintiff’s counsel, and every part of their opinion is believed to be impregnable. 406 1835] OF THE UNITED STATES. 622 Owings v. Hull. •Johnson, in reply.—The ruling of the circuit court was, that the record of the parish court was evidence ; and therefore, the counsel for the plaintiff below used the whole contents of the record before the jury. The court refused to discriminate, and to decide on those parts of the proceedings in the court of Louisiana, and the documents produced in that court, which were or were not legal testimony. This was the error then and now complained of. Some of the matters in the record, and part of the correspondence are not proved ; nor was it shown, that any attempt had been made to prove them. It was the duty of the plaintiff below, to have proved the want of title, derived under the act of sale, independent of the record. He came into the circuit court to maintain his claim against the executrices of Mrs. Van Pradelles, for money had and received to his use ; formoney paid under a consideration which had failed. He could only maintain such a claim by legal proof, shown to be such by the rules of evidence, and not made such proof by the judgment of a distant tribunal, in a suit to which they were not parties. Was the sale made by West binding on his supposed principals? It was not within the prescribed and declared'principles on which he was to act under the power of attorney. No money was received by them. There was no proof that any money was received, but by the letter of West, and that letter was inadmissible in evidence, in the form in which it was presented to the court. The whole sum paid by Mr. Hull to West, if any was legally proved to have been paid, was by him retained. The last instalment, if paid to Mrs. Donaldson, was retained by her; if that sum was to be recovered back, it should have been sought in an action against her. She was one of the parties to the proceeding in the parish court to vacate the sale of the slaves, as pretended to have been made by West. She, with the co-heirs of *Mrs. Van Pradelles, recovered the slaves, for which, in part, the money paid by Mr. Hull was received by her ; and on every I principle, if any one was liable, she was liable to refund it. And yet, in the circuit court, a judgment was given for this amount, included in the instalments paid to, and retained by West, against the plaintiffs in error ! The defendant in error, as was submitted to the court, in the argument in chief, was bound to know the extent and nature of the powers of West (1 Pet. 264, 290); and whether the act of sale was in conformity to those powers, and to the laws of Louisiana. Those laws are, that executors cannot sell at private sale, and must sell by auction; and the judgment of the parish court was founded solely on the defect of the sale. It was, therefore, a loss sustained by his want of vigilance, by his inattention to his own obligations to protect himself from such a proceeding, from a loss not brought upon him by the acts of the plaintiffs in error, or by acts authorized by their agent; a loss they could not protect him from, but from which he could have protected himself. Suppose, the letter of attorney to West had, in express terms, directed the agent to apply to the court for an order to sell the slaves, and he had sold them, without such an order; it would not have been contended, that the constituents in the powei* were bound by such sale. The power of attorney in this case, is the same in effect. It contemplates the intended proceedings under it, to be in conformity with the laws of Louisiana. The acts of an agent beyond this authority, do not bind his principal. 7 Johns. 391. 407 623 SUPREME COURT [Jan’y Owings v. Hull. As to the position, that the ratification of the acts of West bound the plaintiffs, although they were ignorant of their nature and invalidity; this has been already met by the argument before offered to the court. The plaintiffs in error did not know the law of Louisiana, nor had they an opportunity to know it. The defendant in error claims, that the act of sale, which is proved by a notarial copy taken from the notarial register, is evidence, because such is the law of Louisiana as to copies of that kind. This may be the law there, but is not known to be the law by this court, and the party availing himself of the law should prove it. to be such. The circuit court of the United *^a^es are n°t bound to know the laws of the several states ; and if J they are called on to administer them in a case where they apply, the laws should be proved. This was not done. Stoey, Justice (after stating the facts), delivered the opinion of the court.—The original suit was brought to recover back the purchase-money paid by the defendant in error for the slaves, and other compensation for the defect of title (as mentioned in the previous statement of the facts of the case). The jury found a verdict for the original plaintiff, for $2636.96, upon which judgment was rendered accordingly ; and the present writ of error is brought to revise that judgment, upon certain bills of exceptions taken at the trial, on behalf of the plaintiffs in error. The objections taken to the admissibility of the evidence were, in the first place, that the record in the case of the Heirs of Mrs Van Pradelles v. Hull, in Louisiana, was not evidence against the defendants in the present suit, except as to the judgment of the court in Louisiana. By the judgment, we are to understand, not that part of the record, which in a suit at the common law technically follows the ideo consideratum est, &c. ; for that would be wholly unintelligible, without reference to the preceding pleadings and proceedings; but that which, in common, as well as legal language, is deemed the exemplification of a judgment; that is to say, all the pleadings and proceedings on which the judgment is founded, and to which, as matter of record, it necessarily refers. We are of opinion, that this objection was well taken. The suit was res inter alios acta, and the proceedings, and judgment therein, were no further evidence than to show a recovery against Hull, by a paramount title. There was error, therefore, in the circuit court, in refusing to sustain this objection. The next objection was, that the copy of the original bill of sale of the slaves to Hull, on record in the notary’s office, was not evidence, unless the plaintiff accounts for the non-production of the original. The validity of this objection depends upon this consideration, whether the non-production of the original was sufficiently accounted for. It was not accounted for by *«9^1 any Pro°fs offered on behalf of the plaintiff; and unless *the circuit J court could judicially take notice of the laws of Louisiana, there was nothing before the court, to enable it to say, that the non-production of the original was accounted for. We are of opinion, that the circuit court was bound to take judicial notice of the laws of Louisiana. The circuit courts of the United States are created by congress, not for the purpose of administering the local law of a single state alone, but to administer the laws of all the states in the Union, in cases to which they respectively 408 1835] OF THE UNITED STATES. 625 Owings v. Hull. apply. The judicial power conferred on the general government, by the constitution, extends to many cases arising under the laws of the different states. And this court is called upon, in the exercise of its appellate jurisdiction, constantly to take notice of and administer the jurisprudence of all the states. That jurisprudence is, then, in no just sense, a foreign jurisprudence, to be proved in the courts of the ,United States, by the'ordinary modes of proof by which the laws of a foreign country are to be established ; but it is to be judicially taken notice of, in the same manner as the laws of the United States are taken notice of by these courts. Under these circumstances, we are at liberty to examine the objection above stated, with reference to the known laws of Louisiana. Now, in Louisiana, as, indeed, in all countries using the civil law, notaries are officers of high importance and confidence; and the contracts and other acts of parties, executed before them, and recorded by them, are of high credit and authenticity. Some contracts and conveyances are not valid, unless they are executed in a prescribed manner, before a notary; others again, if executed by the parties elsewhere, may be recorded by a notary ; and a copy of such record is in many cases evidence. Where a contract or other act is executed in a particular manner before a notary, the protocol or original remains in his possession apud acta; and the act is deemed, what is technically called, an “ authentic actand a copy of such act, certified as a true copy, by the notary, who is the depositary of the original, or his successor, is deemed proof of what is contained in the original, for the plain reason, that the original is properly in the custody of a public officer, and not deliverable to the parties. This will abundantly appear, by a reference to the Civil Code of Louisiana, from article 2231 to 2250. Now, the bill *of sale, in the present case, is precisely in that predicament. It was executed before a notary, in the manner prescribed by the laws of L Louisiana ; the original is in his possession, and is an authentic act, apud acta; and therefore, the party is not entitled to the possession of it, but only to a copy of it. So that the absence of the original is sufficiently accounted for ; and the copy being duly proved, was properly admissible in evidence. There was no error, therefore, in the circuit court, in admitting this evidence. And this constitutes an answer to the next objection : viz., “ that to make the act of sale evidence, it must appear, by the laws of Louisiana, properly and legally proved, that the original act of sale, of which it purports to be a copy, is in the custody of a public depositary, and cannot be adduced in evidence.” By the laws of Louisiana, as already stated, the original is in the hands of such a depositary ; and therefore, the objection falls to the ground. The next objection is, that the documents, and documentary proofs, contained in the record of the Louisiana suit above mentioned, are not evidence against the defendants. This has been already disposed of, under the first objection ; and there was error in the circuit court in not sustaining the objection. The next objection is, that the paper referred to in the testimony of Martin Blache, purporting to be letters-testamentary, granted by the court of probates of Louisiana to John K. West, are not legal evidence in the cause, against the defendants. We are of opinion, that the objection is 409 626 SUPREME COURT [Jan’y Owings v. Hull. unfounded, and was rightly overruled by the circuit court. Blache swears, that he is the clerk and register of the court of probates ; that the copy is a true copy of the original; that he cannot send the original, which is on file in the court of probates. Under such circumstances, the copy is the best evidence which the nature of the case admits of. The next objection is, that the evidence of Mr. Winchester, with regard to the letters and the accounts of J. K. West, transmitted by him, is not admissible evidence in the cause. In our opinion, the circuit court was right in overruling this objection. Mr. Winchester was the attorney in fact of the defendants, and conducted, in their behalf, the correspondence with J. *«0*71 West ; and the letters which passed between them *must be pre-J sumed to have been brought fully to the knowledge of the defendants, and were important to establish a presumption of the ratification of the acts of West by the defendants, after the communication of them. How far they ought to avail for that purpose, was matter of fact for the consideration of the jury. The only question, with which we have to do, is their competency for this purpose. The next and last objection, under this head, which properly should have preceded all the others, but was taken in a subsequent stage of the trial, is to the admissibility in evidence of the record from the parish court of the city of New Orleans, already referred to, for any purpose, on the ground, of its not being authenticated according to law. This objection was overruled by the circuit court, and, in our opinion, properly overruled. The record is authenticated in the precise manner required by the act of congress of the 26th May 1790, having the attestation of the clerk, and the seal of the court annexed, together with a certificate of the sole judge of the court, that the attestation is in due form of law. We may now proceed to the consideration of the instructions asked of the court, in behalf of the defendants, in the farther progress of the cause, and refused by the court. With those asked by the plaintiff, in the actual posture of the cause, upon the present writ of error, we have nothing to do. The first instruction asked was, that there was no evidence in the cause to show, that John K. West had any authority from the defendants in the cause, to effect a sale of any property belonging to the estate of their testatrix, in Louisiana, except in conformity with the laws of the said state ; and that unless the plaintiff shows a sale to the plaintiff (Hull) by West, in conformity with the said laws, and a subsequent recovery from Hull, he is not entitled to recover. We are of opinion, that this instruction ought to have been given, as prayed. Every authority given to an agent or attorney, to transact business for his principal, must, in the absence of any counterproofs, be construed to be to transact it according to the laws of the place where it is to’ be done. A sale of slaves, authorized by an executrix to be made in Louisiana, must be presumed to be intended to be made in the manner required by the laws of that state to give it validity. And the purchaser, * , equally with the *seller, is bound, under such circumstances, to know what these laws are, and to be governed thereby. The law will never presume, that parties intend to violate its precepts ; and indeed, the very terms of the letter of attorney under which the present sale was made, clearly point out, that it was in contemplation of the parties, that judicial, as well as extra-judicial, acts might be required to be done. The attorney is 410 1835] OK THE UNITED STATES. 628 Owings v. Hull. to execute good and sufficient deeds, &c., for the purpose of transferring ail the right and title of the heirs of the testatrix in her real and personal estate, to the purchasers ; and generally to do, negotiate and perform all other acts, matters and things in the premises, for the effectual settlement of the estate, &c. Now, there could be no effectual settlement, unless a valid title to the slaves and other property sold, was given, according to the laws of Louisiana ; and there is no evidence in the case, to show, that the defendants ever contemplated any sale, which should not be valid by those laws. The circuit court, therefore, erred in not giving the instruction. The next instruction asked was, for the court to instruct the jury that, unless they believed, that John K. West strictly complied with the special instructions given him by the defendants, in the power of attorney of January 1816, and caused such legal proceedings to be instituted, as were necessary to effect a sale of the personal estate of which their testatrix died possessed, in Louisiana, and under such legal proceedings, made a sale of the slaves, being part of the personal estate, to the plaintiff (Hull), and that the slaves were subsequently recovered from the plaintiff, the plaintiff is not entitled to recover. For the reasons already given, this instruction ought also to have been given. This is not the case of a general agency, but a special agency, created by persons acting en autre droit. The purchaser was, therefore, bound to see, whether the agent acted within the scope of his powers ; and at all events, he was bound to know, that the agent could not, in virtue of any general power, do any act which was not in conformity with the laws of Louisiana. The principals could never be presumed to authorize him to violate those laws ; and the purchaser, purchasing a title, invalid by those laws, must have purchased it with his eyes open. The next instruction asked was, for the court to direct the *jury, pgoo that if they should be of opinion, from the evidence, that the defend- L ants did ratify the said sale of the slaves ; yet, if they should be of opinion, that West did not, before such ratification, apprise the defendants of the fact, that the letters of administration were never taken'out by him in Louisiana upon the estate of the testatrix, and of the fact that, by the laws of Louisiana, the executrices, the defendants, never could have claimed any property in the slaves so sold, and that the defendants, in ignorance of the existence of these facts, did ratify the said sale ; then such ratification, being made without a full knowledge of all the circumstances material for them to know, before they made such ratification, is not binding upon them. The court refused to give this instruction, because the prayer did not arise from the facts of the case. But the court did direct the jury, that if the jury should believe, from the evidence, that the proceedings of their attorney were ratified by them, it was not material, whether they did or did not know, that West had taken out letters of administration on the estate of the testatrix. It is wholly unnecessary for us now to consider, whether the instruction, as prayed, ought to have been given or not; for we are of opinion, that the instruction actually given cannot, in point of law, be supported. No doctrine is better settled, both upon principle and authority, than this—that the ratification of an act of an agent previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated as invalid, because founded in mistake or fraud. Now, by the laws of Louis- 411 629 SUPREME COURT [Jan’y Owings v. Hull. iana (Civil Code, art. 1681-82), testaments made in foreign countries, and other states of the Union, cannot be carried into effect on property in that state, without being registered in the court within the jurisdiction of which the property is situated ; and the execution thereof is ordered by the judge; which may be done, if it be established, that the testament has been duly proved before a competent judge of the place where it was received. So that there is no doubt, that the due probate of the will of the testratrix, before the proper court of probate of Louisiana, was an indispensable preliminary to any sale of the property in that state. If West had not taken *6301 out ^et^ers Administration on the estate of the testatrix, in Louis- J iana, it is clear, that he could have no authority to sell the slaves, or to bind the executrices. For these reasons, we are of opinion, that the judgment of the circuit court ought to be reversed, and the cause be remanded to the circuit court, with directions to award a venire facias de novo. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel: On consideration whereof, it is the opinion of the court, that there was error in the said circuit court in refusing to sustain the objections made by the original defendants (now plaintiffs in error), contained in their first specification in the record, viz : “ That the record in the case of Donaldson n. Hull, in the parish court of New Orleans, is not evidence in this cause against the defendants, except as to the judgment of the court in Louisiana.” And also in their fourth specification, viz : “ That the depositions and documentary proof contained in the record, in the cause of Donaldson v. Hull are not evidence against the defendants in this cause.” And also, that there was error in the said circuit court in refusing to grant the first instruction prayed by the defendants, viz: “To direct the jury that there is no evidence in the cause, to show that John K. West had any authority from the defendants in this cause, to effect a sale of any property belonging to the estate of their testatrix, in Louisiana, except in conformity with the laws of said state ; and that unless the plaintiff shows a sale to the plaintiff, Hull, by West, in conformity with said laws, and a subsequent recovery from Hull, he is not entitled to recover.” And also, in refusing the second instruction prayed by the defendants, viz : “ To direct the jury, that unless they believe that John K. West strictly complied with the special instructions given him by the defendants, in the power of attorney of January 30th, 1816, and caused such legal proceedings to be instituted as were necessary to effect a sale of the personal estate of which the testatrix died poss'essed in Louisiana ; and under such legal proceedings, made sale of certain slaves, being part of the said *personal estate, to J. F. Hull, the plaintiff in this cause; and that the said slaves were subsequently recovered from the said Hull; that the plaintiff is not. entitled to recover.” And also, in giving the following instruction to the jury, viz : “ That if the jury should believe from the evidence, that the proceedings of their attorney were ratified by them, it is not material, whether they knew, or did not know, that West had not taken out letters of administration on the estate of the testatrix.” It is, therefore, considered by the court, that for these errors, the 412 1835] OF THE UNITED STATES. 631 Livingston v. Story. judgment of the said circuit court be and. the same is hereby reversed and annulled, and the cause is remanded to the said circuit court, with directions to award a venire facias de novo. *Edward Livingston, Appellant, v. Benjamin Story. [*632 Equity.—Bill of discovery.—Demurrer. A bill of complaint was filed in the district court of the United States for the eastern district of Louisiana, to set aside a conveyance made by the complainant, of certain lots of ground in the city of New Orleans, and to be restored to the possession of the same, alleging that the deed by which he conveyed them was given on a contract for the loan of money, and that although in the form of a sale, it was given only as a pledge for the repayment of the money; and calling for an account of the rents and profits of the property. The defendant demurred to the bill, and assigned for cause, that the complainant, in the bill, had not made such a case as entitled him, in a court of the state of Louisiana, to any discovery touching the matters contained in the bill, nor to any relief in the district court; the ground of this demurrer was, that the district court of the United States of Louisiana had no power to entertain procedings and give relief in chancery; the district court sustained the demurrer, and dismissed the bill. The decree of the district court was reversed. Provisions of the laws of the United States, establishing the courts of the United States in the district of Louisiana, and regulating the practice in those courts. By the provisions of the acts of congress, Louisiana, when she came into the Union, had organized therein a district court of the United States, having the same jurisdiction, except as to appeals and writs of error, as the circuit courts of the United States in other states ; and the modes of proceeding in that court, were required to be according to the principles, rules and usages which belong to courts of equity, as contradistinguished from courts of common law; and whether there were or not, in the several states, courts of equity proceeding according to such principles and usages, made no difference, according to the construction uniformly given by this court. Congress has the power to establish circuit and district courts, in any and all the states of the Union, and to confer on them equitable jurisdiction, in cases coming within the constitution; it falls within the express words of the constitution. The provisions of the act of congress of 1824, relative to the practice of the courts of the United States in Louisiana, contain the descriptive term, civil actions, which embrace cases at law and in equity, and may be fairly construed as used in contradistinction to criminal causes ; they apply equally to cases in equity, and if there are any laws in Louisiana, directing the mode of proceeding in equity causes, they are adopted by that act, and will govern the practice in the courts of the United States. If there are no equitable claims or rights cognisable in the courts of the state of Louisiana, nor any courts of equity, and no state laws regulating the practice in equity causes, the law of 1824 does not apply to a case of chancery jurisdiction, and the district court of Louisiana was bound to adopt the antecedent modes of proceeding, authorized under the former acts of congress. *If any part of a bill in chancery is good, and entitles the complainant to relief or dis- pggg covery, a demurrer to the whole bill cannot be sustained. It is an established and universal rule of pleading in chancery, that a defendant may meet a complainant’s bill by several modes of defence; he may demur, answer and plead to different parts of the bill; so that if a bill for a discovery contain proper matter for the one, and not for the other, the defendant should answer the proper, and demur to the improper matter ; and if he demurs to the whole bill, the demurrer must be overruled. Appeal from the District Court for the Eastern District of Louisiana. On the 25th. of July 1832, the appellant, Edward Livingston, filed a bill of complaint in the district court, by his solicitors ; stating, that on or about the 25th of July 1822, being in want of money, he applied to Benjamin Story and John A. Fort, of the city of New Orleans, who agreed to lend him the sum of $22,936 ; of which a part only was paid in cash, part in a 413 633 SUPREME COURT Livingston v. Story. [Jan’y note of John A. Fort, and $8000, parcel of the said sum, was agreed to be afterwards paid to one John Rust, for the purpose and in the manner afterwards stated. To secure the repayment of the money and interest, at the rate of eighteen per centum per annum, he conveyed to Fort and Story certain property, with the improvements on the same, situated on the Batture, in New Orleans, owned by him. When this property was so conveyed, Fort and Story delivered to him a counter-letter, by which they agreed to reconvey the property to him, on the payment of $25,000 (being the sum advanced and the interest), on the 1st day of February then next ; but if the same was not paid on that day, the property should be sold ; and, after paying the sum of $25,000, and the costs of sale, the residue should be repaid to him. At the time of the sale, the whole property was covered with an unfinished brick building, intended for fifteen stores ; and a contract had been made with John Rust, to finish the buildings for $8000. Story agreed to pay the $8000 to Rust, and this was, with the interest at eighteen per cent, on it, a part of the $25,000 to be repaid on the 1st day of February 1823. The property was, at the time of the loan, worth $60,000, and was then worth double the sum. Story and Fort took possession of the property, and the complainant , wen^ to ^ew York on a visit, expecting the stores to *be finished by J his return, or that at least three of them would be in a condition to let; he having received an offer of rent for each of the three, which would have given a rate of interest equal to a principal of $10,000 each for the three smallest stores. The complainant stated that, on his return to New Orleans, he found little or nothing had been done to the stores ; the $8000 had been paid to John Rust; and if the property had been sold in February, it would not have produced anything like its value. He, therefore, applied to Fort and Story for a further time to pay the money borrowed, which they would not consent to, but on the following conditions : that the property should be advertised for sale on the 2d day of June then next; that the sum due to them should be increased from $25,000 to $27,500; which sum was composed, first, of the said $25,000 ; secondly, of $1500 for interest, for the delay of four months, at eighteen per cent.; thirdly, $800 for auctioneer’s commissions, of $50 for advertising, and of $200 arbitrarily added, without any designation; of which a memorandum was given by the said Fort and Story, and was ready to be produced; and that the counter-letter, so executed as aforesaid, to him, by the said Fort and Story, should be annulled. Being entirely at the mercy of Fort and Story, he was obliged to consent to these terms, in hope of relief when money should become plenty ; but, on the contrary, the pressure became greater, and, on the 2d of June, in order to obtain a delay of sixty days, he was forced to consent to sign a paper by which it was agreed that the debt should be augmented to the sum of $27,830.76 ; and that if the same was not paid on the 5th of August, then the property should belong to the said Fort and Story, without any sale ; but there was no clause by which he should be discharged from the payment of the sum so borrowed, as aforesaid; whereby he would have been liable to the payment of the sum so advanced, in case the property had fallen in value. On the 5th day of August above mentioned, the said Fort and Story demanded, by a notary, the full sum of $27,830.76, which included the said 414 1835] OF THE UNITED STATES. 634 Livingston v. Story. charge of $800 for auctioneer’s fees for selling, although no sale had been made ; *and all the other illegal charges above stated ; and on non-payment, they protested for damages and interest on the sum; there- 1 by showing their intent to hold the complainants responsible for the sum demanded, if the premises should, by any accident, become insufficient in value to pay the same. Fort and Story remained in possession of the said premises, until the death of the said John A. Fort, which took place some time in the year 1828 ; and after his death, the said Benjamin Story took the whole of the said property, by some arrangement with the heirs of John A. Fort; and was, and ever since had been, in the sole possession thereof, and the said John and Benjamin, in the lifetime of the said John, and the said Benjamin, after the death of the said John, had received the rents and profits of the said property to the amount at least of $60,000. The bill stated, that the complainant was advised and believed, he had a right to ask and recover from the said Benjamin Story the possession of the said property, and an account of the rents and profits thereof ; the conveyance of the same having been made on a contract for the loan of money, and although in the form of a sale, was, in reality, only a pledge for the repayment of the Same ; the act by which the complainant agreed to dispense with the sale being void and of no effect in law. The bill concluded as follows: “And your orator prays, that if, on said account, it shall appear that there is a balance due to him, as he hopes to be able to show will be the case, that the said Benjamin Story may be decreed to pay the same to him, and to surrender the said property to him ; and that if any balance be found due from your orator, that the said Benjamin Story may be decreed to deliver the said property to your orator, on his paying or tendering to him the said balance; and that your orator may have such other relief as the nature of his case may require ; and that the said Benjamin Story, in his own right, and also as executor of the last will and testament of the said John A. Fort, or in any other manner representing the estate of the said John A. Fort, may be summoned to answer this bill; your orator averring that he is a citizen of the state of New York, and that the said Benjamin Story is a citizen of the state of Louisiana, now residing in New Orleans.” *Upon this bill, a subpoena was issued, directed to the marshal, commanding him to summon Benjamin Story to appear at the district court, on the 3d Monday in February 1834, “to answer a bill exhibited against him in the said court, together with certain interrogatories therewith filed by the complainants.” A subpoena was also issued in the same terms, directed to Benjamin Story, executor of John A. Fort. On the 17th day or February 1834, Benjamin Story came into court, and by his solicitor, L. Pierce, Esq., filed the following demurrer: “ The defendant, by protestation, not confessing all or any of the matters and things in the complainant’s bill to be true, in such manner and form as the same are therein set forth and alleged, does demur to the said bill; and for cause of demurrer shows, that the complainant has not by his said bill, made such a case as entitles him, in a court of equity, in this state, to any discovery from this defendant, touching the matters contained in the said bill, or any or either of such matters, nor entitles the said complainant to any relief in this court, touching any of the matters therein complained of. And for further 415 I ' I ( ..» I - 636 SUPREME COURT [Jan’y Livingston v. Story. cause of demurrer to said bill, he shows, that by complainant’s own showing, in the said bill, the heir of John A. Fort, who is therein named, is a necessary party to the said bill, inasmuch as it is therein stated, that all the matters of which he complains, was transacted with this defendant and John A. Fort; whose widow, the present Mrs. Luzenbourg, is the sole heir and residuary legatee ; but yet the said complainant hath not made her party to the said bill, wherefore, as before, and for all the above causes, and for divers other good causes of demurrer appearing in the said bill, this defendant does demur thereto ; and he prays the judgment of this honorable court, whether he shall be compelled to make any further and other answer to the said bill; and he humbly prays to be dismissed from hence, with his reasonable costs in this behalf sustained.” On the 20th of May 1834, the district court, by a decree, sustained the demurrer, and ordered the bill of the complainant to be dismissed. The complainant prosecuted this appeal. *«9'71 *The case was argued by 'White and Key, for the appellants ; J and by Clay and Porter, for the appellee. For the complainant, it was contended.—1. That the district court of Louisiana has, by the constitution and laws of the United States, the same chancery powers as a circuit court of the United States within the other states. 2. That the bill filed, presents a case in which, by law, and the usages of a court of equity, the complainant is entitled to relief, and that the demurrer ought to have been overruled. 3. The bill of complaint presents a case which, according to the laws and practice of Louisiana, entitles the complainant to relief. Key, for the appellant.—The bill states a case for a court of equity; and the sole inquiry is, whether the district court of Louisiana has, by the constitution and laws of the United States, the same chancery powers as other courts of the United States. This jurisdiction that court certainly has, unless it is taken away by the act of congress of 26th May 1824, ch. 181 (4 U. S. Stat. 62), relating to the proceedings in the courts of the United States in Louisiana. That act directs, that the modes of proceeding in the courts of the United States, shall be the same as in the courts of Louisiana. The district court has power by the law to regulate the practice in the court, where the rules of the state courts are not adapted to that court. The rules which the court may adopt, must be such as will not interfere with the rights of parties in the court, to ail the remedies which, in other courts of the Union, are administered according to the constitution. Relief in equity, when there is not a plain and adequate remedy in law, is among these rights. 4 Wheat. 212, 222, 115. It became the duty of the court to make adequate rules to apply such remedies. It will be contended by the appellees, that the operation of the act of 1824 was to take away equity jurisdiction. There is nothing in the letter of the law which does this ; nor which will, in any way, authorize the inference that such was its purpose. The law, says the court, may, not that it must, adopt the state practice. As the constitution gives a right to relief in equity, the law should *6381 ^construed so as to enable a party to obtain that relief. In Louis- J iana, there are no courts of chancery; and therefore, no rules can be 416 1835] OF THE UNITED STATES. 638 Livingston v. Story. invoked from the Louisiana courts, to regulate proceedings in equity cases. There could not be an intention by congress to adopt the rules of the state courts in such cases, as no rules having any application to cases of that description, existed. The application made to the district court of the district of Louisiana was not termed a bill in equity or in chancery, but a bill of complaint; and under this, if, by the practice of Louisiana, relief could be afforded, why was it not given? Jurisdiction, even according to the principles asserted by the appellees, should have been taken, if any remedy could have been afforded in the courts of Louisiana. But in this case, the court took equitable jurisdiction of the bill; for it sustained the demurrer, and dismissed the bill. Cited, 3 Pet. 434, 446, 450 ; 2 Mason 270 ; 1 Gallis. 536. One of the great benefits which, under the constitution, a party who goes into a court of equity has, is that of a discovery. This is obtained, by the right he has to put interrogatories to the defendant; and the practice of the chancery courts of England has been adopted in the courts of the United States, as affording the means of using this, as well as all other rights which exist under that practice. It is a right not depending on the will or consent of the court. But in the courts of the state of Louisiana, the right to a discovery from a defendant exists only by the consent of the court. The complainant here presents a case showing wrongs, oppression, injustice and usury. He has, under the constitution, a right to present his case in a federal court, and he should there have had relief. These are constitutional rights, which should not have been denied to him ; and yet his suit is dismissed, and no remedy is afforded to him. Porter and Clay, for the appellee.—It is understood, that the question in this case is, whether the common law, and the equity forms of proceeding, shall be introduced into Louisiana. You cannot introduce the chancery law, unless you introduce the common law; and if this is done, it will produce great dissatisfaction in that state. *It is a singular question, whether a system of jurisprudence exists in a state, where it is not ■-known or understood ? Whether, in a community where the civil law prevails, a system of laws shall be introduced which are against their prejudices ? The constitution was formed, at a time when the common law prevailed in all the states which then composed the Union. In those states, there must, therefore, have been chancery law, for it is a part of the common law; and in reference to this state of things, in all those states, there were recognised and established a chancery and a common-law jurisdiction, and the principles and rules of courts of common law and courts of chancery. The third section of the third article shows, that the constitution did not introduce those principles, and those modes of proceedings. It found them existing, and provided for their administration. The terms of the constitution are, “ all cases of law and equity, arising under the constitution.” The difference between law and equity, requiring different tribunals for their application to cases, exists in no other country but in England and the United States. Our proposition is, that there can exist no equity law but where the common law prevails. In those states, they are distinguishable from each 9 Pet.—27 ' 417 639 SUPREME COURT [Jan’y Livingston v. Story. other, although part of the same law, and these distinctions are considered part of the common law; and different courts enforce these different systems. But in Louisiana, these distinctions do not exist. To talk of distinguishing law and equity, is as reasonable there, as to state that equity and equity differ. These views of the subject are aided by the act of congress of 1792, in addition to the act of 1789. The latter act provides for modes of proceeding in courts of equity, as contradistinguished from courts of law. The jurisdiction of the courts of the United States is to be exercised according to what is given to those courts by the laws of the United States ; not by the general provisions of the constitution. If the highest court under the constitution has other powers, those of the inferior courts exist only under acts of congress. The cases cognisable under the constitution, are those arising under the constitution and laws of the United States ; and this is not such a case. By the constitution and laws of the Union, the * , courts of the *United States have power to decide rights in cases J between citizens of different states, arising under the constitution and laws of the United States ; but not others. Does the term “ law and equity ” run through all the provisions of the article ? It is contended, that by a fair and grammatical construction, it does not. This court will not take hold of all the powers which the constitution has declared |o belong to the judiciary department, and make rules to execute those powers. Suppose, at the formation of the constitution, there had existed in some of the states a system of civil law, and no common law; would the common law have been introduced by the establishment of the constitution ? The law would have been taken as it stood and was enforced ; as no purpose existed to introduce new systems of law, but only to carry into effect the prevailing laws. The judiciary act provides, that jurisdiction shall be given to the courts of the United States in law and equity, concurrent with the courts of the state. But where there is no equity jurisdiction in a state, how can there be a concurrent jurisdiction ? It would be a limitation of the powers of the courts of the United States, to say, they have no jurisdiction, except in cases of law or equity ; as it would exclude the jurisdiction from cases arising under any laws. The language of the constitution, although employed at the period when no systems existed but those of law and equity, is ample foi' all cases. As to the suggestion, that the district judge should have moulded the proceedings so as to give relief, it must be observed, that the case stood before the judge upon a special demurrer, assigning for cause that the plaintiff had departed from the whole course of proceeding in that court. It was not asked of the court below, that the proceedings should be amended, and the judge was bound to decide the case on the bill and the demurrer. But if a district court of the United States, sitting in Louisiana, has law and equity jurisdiction, and giving the doctrine its full effect, it is contended, that congress, in conferring equity jurisdiction on any court of the United States, has power to declare what shall be the form of the proceedings by which that equity jurisdiction is to be exercised. The first proposition, that congress has power to provide forms of pro-*64’ 1 cee^uS f°r equity courts, will not be doubted. *This court has *-* more than once decided, as has been stated, that in relation to the 418 1835] OF THE UNITED STATES. 641 Livingston v. Story. inferior courts, the judicial power extends no further than legislation has conferred it. If this be true, it follows, that congress can modify the means by which that power is to be exercised, as well as limit its extent. The second proposition, that congress has given the United States equity court in Louisiana, forms of proceeding different from those given the courts of chancery in England, may not be so obvious, but it is equally true. The provisions of the act of congress of the 26th of May 1824, furnish the law on this subject. How stands the case on that law ? All civil causes in the district court of the United States in Louisiana must, by the act of 1824, be conformable to the state practice. A suit in equity is a civil cause; but a suit in equity shall not be conformable to the state practice. The first rule in the construction of statutes is, to follow the letter, unless the interpretation leads to an absurd and pernicious result. The act of 1824, which declares that the forms of proceeding in the United States court shall be the same in the state court, produces no such consequences. Would it not, therefore, be a violation of a rule, in the case now under consideration, that though the law said the practice in both courts should be the same ; this court should pronounce they are not to be the same. As to the inquiry, what is to be done, if there is no equity state court, nor any law regulating the practice in equity cases ; this question is answered by the cases of Bobinson v. Campbell, 3 Wheat. 212 ; United States v. Howland, 4 Ibid. 108 ; Parsons n. Bedford, 3 Pet. 433. When it is said, that the proviso in the act of 1824, gives to the judge of the court of the United States power to modify the proceedings in the courts of Louisiana, and therefore, there is no imperative and absolute force given to the state proceedings ; this is admitted to be true. It does leave the judge power to modify the state proceedings ; but then it follows, that until he does modify them, they form the rule. Were it otherwise, the proviso would be the rule, and the general enacting clause, the exception. *It is admitted, that no absolute repeal was made of the antece- r# dent modes of proceeding, authorized by the former acts of congress. •-There is no absolute repeal of those laws, but there is a repeal sub modo, that is, the state forms of proceedings take place of the common law and equity remedies, unless the judge revives them. If the statute has not this force, it means nothing and effects nothing. Now, though there must be courts of equity in each state, which, in the absence of any special legislation, are to be governed in their practice by that regulating the court of chancery in England ; though state modes of proceeding have no force except so far as congress gfves them force ; though the judge may make rules to modify them, though former modes of proceeding are not so absolutely repealed, but that the judge may by rule preserve them ; still, any or all of these postulates do not authorize the conclusion, that congress may not take the civil law proceedings of Louisiana for the forms of an equity court in Louisiana. They all stand by the side of our position, not opposite to it. The proposition is, that the congress of the United States may adopt what forms of proceedings it thinks fit, for the administration of justice in its equity courts, provided it preserves to the suitors the power of court over proof, and the capacity to extend relief, which distinguish a court of equity from a court of common law. 419 642 SUPREME COURT [Jan’y Livingston v. Story. Congress has, clearly, by the act of 1824, adopted the Louisiana practice. What does that act say ? The mode of proceeding in civil causes, in the United States courts, shall be conformable to ,the law directing the modes of practice of the state court, unless the judge modify” them. Well, he has not modified them. Then, why should we not have the state practice ? If our civil law proceedings give full effect to all powers of an equity court ; if, in truth, they be the same ; why should the fact of their being called law proceedings, deprive the appellee of the benefit of the act of 1824 ? It is not admitted, that an adverse answer can be given to this question. The truth is, that there are no law proceedings in Louisiana, as contradistinguished from those in equity ; and the application of the term law proceedings to a procedure essentially that of chancery, is the cause of all the difficulty in this case. *If they were called proceedings in equity, it 643J appears,the act of 1824 would apply; but not being so called, it cannot. The ordinary courts of Louisiana are armed with, the full powers of an equity tribunal. So true is this, that the counsel for the appellant is challenged to show the slightest discrepancy in any important particular ; and it is believed, that if any one of the court were about to create a court of equity, not by a general reference to another system, but by a special enactment, he would take the Louisiana statute as a model; or, if he did not, his own legal accomplishments would induce him to draw up one in all respects similar. There is a most important statute which has been overlooked. It is that of 1828, ch. 68. It is urged, that the national legislature, by the act of 1824, intended to change the former practice of the law, on the equity side of the district court, in Louisiana, and introduce the civil law practice into both; and that, in fact, it had done so. The act of 1828 is referred to, wherein it is declared, that the forms of proceeding in the courts of the United States, in all states admitted into the Union, since the year 1789, should be according to common-law and equity forms ; but that the provision of the act should not be applied to the state of Louisiana. It appears, that in no more clear or unequivocal manner could congress have declared their opinion, that Louisiana had another system provided for her, and that it would be unwise and unjust, to give to her what was properly extended to others. White, of Florida, for the appellant.—The act of congress organizing a district court for the territory of Orleans, conferred upon it the same jurisdiction as that which was exercised by the court of the Kentucky district. The act of 1812, providing for the admission of the state of Louisiana into the Union, declares, that the district court of the state of Louisiana, shall have the same powers and jurisdiction as the district court for the territory of Orleans. This law refers to the act which was based upon the act organizing a court of the United States for the Kentucky district, which, under the provisions of the act constituting it, had all the powers of a circuit court of the United States within the other states. *It may then be $44J assumed, that, by the laws of the United States, the district court of the state of Louisiana had, prior to the act of 1824, the same powers and jurisdiction, at law and in equity, as that possessed and exercised in all 420 1835] OF THE UNITED STATES. 644 Livingston v. Story. respects by the circuit courts of the United States within the several states. This jurisdiction is regulated by law, in pursuance of the constitution. The first section of the third article of the constitution declares, that the “judicial power of the United States shall be vested in a supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish.” The district court of Louisiana is, as it has been shown, one of these inferior courts ordained and established, in which this judicial power is vested. The second section, third article, declares, that “the judicial power shall extend to all cases in law and equity.” From the moment of the establishment of the district court of Louisiana, there were vested in it, by the constitution, equity powers and jurisdiction ; these powers and that jurisdiction cannot be changed or limited by any act of congress. The jurisdiction, not only of the supreme court, but of the inferior courts, is established by the constitution ; and cannot be diminished, altered or lim ited, under the pretext of regulating the practice of the courts by congress. If, then, the act of 1824 was susceptible of the construction placed upon it by the learned counsel for the appellee, it would be a violation of the constitution of the United States. Congress have as much power to declare that any other provision of the constitution shall be dispensed with, or suspended, in any state of this Union, as to enact that the judicial power of the district court of Louisiana shall not extend to cases in equity; and the equity referred to has been construed by this court, to be that system we borrow from the parent country; in other words, that good, old, conscientious, honest system, based on the civil law, as understood and practised in England. From this view of the powers conferred by the constitution and laws of the United States, it is proposed to establish these points: 1. That the district court of the United States, sitting in Louisiana, has equity jurisdiction. 2. That there are no equity proceedings in Louisiana as *contradis- p $ tinguished from law; and that there is no law of the state of Louisi-ana, directing the mode of practice in equity cases, as contradistinguished from cases at law. It is not to be disputed, after admitting the equity jurisdiction of the district court, that its chancery powers are the same, its rule of decision the same, and its jurisdiction the same as those of the circuit courts of the United States in the other states. The character of the state law has no influence whatever upon the exercise of equitable jurisdiction by this court. Its remedies in equity are not to be according to the practice of the state court, but according to the principles of equity, as distinguished and defined in that country from which we derive our knowledge of these principles. The district court of Louisiana is, in fine, a thoroughly organized court of equity ; and as perfectly competent to the administration of equity principles, as a court of chancery in England, or a court of equity in Virginia or New York. So it is in all the other states, by the judiciary act of 1789, made in execution of the constitution of the United States ; and so it, consequently, is in the state of Louisiana, whose inhabitants enjoy the benefits of the same law and constitution, to be expounded in precisely the same way towards them, as towards the other states. It is also free from dispute, that, by the process act of 1792, which was extended to Louisiana, the 421 645 SUPREME COURT Livingston v. Story. [Jan’y modes of proceeding in suits of equity, in the district court of Louisiana were not to he according to the practice of the state courts, but according to the principles, rules and usages which belong to courts of equity, as contradistinguished from courts of common law ; subject to such alteration by the courts as might be thought expedient, &c. The situation or condition of the district court of Louisiana, before the act of 1824 was passed, must be admitted, then, to have been as follows : It was a court of equity, in the most comprehensive sense of that expression, according to the principles of equity jurisdiction as defined and distinguished in England, with such limitations only as were to be found in the constitution and laws of the United States. The practice of the court, moreover, was such as prevailed in courts of equity, as distinguished from courts of law ; and the rules of its practice were to be sought, like its juris-* _ diction, in the principles, *rules and usages of courts of equity, unless J altered in the manner authorized by the act of 1792. Whether the district court of Louisiana, at any time, actually exercised its jurisdiction, according to this practice, is of no moment; the court possessed the faculty of exercising it in this way, whenever a suitor should lawfully appeal to it. It is in regard to a court of equity of this description, constituted by a law of the United States, to exercise its powers according to the laws and the constitution of the United States, that the act of the 26th of May 1824, is to be interpreted ; and it is to be interpreted with the aid and influence of the admission, that the courts of Louisiana exercise no jurisdiction in equity, as distinguished from law, and have no practice applicable to such a distinction ; and that there is no law of the state directing the mode of practice in such suits of equity. The act is to be interpreted as it ought to be, in a case where it is acknowledged, that the mode of practice prescribed by the law of Louisiana is applied to the cases in which proceedings are at law, and not in equity as distinguished from law ; and that there is no law of the state nor practice of the courts, having any reference to a proceeding in equity as distinguished from law. With this view of the equity jurisdiction, and modes of proceeding in equity, of the district court of the United States in Louisiana, before the act of the 26th of May 1824, we proceed to a brief consideration of that act. The act of 1824 does not absolutely repeal the antecedent modes of proceeding authorized in the district court of the United States, under the former acts of congress ; nor give imperative force to the modes of proceeding in civil causes in Louisiana. This was decided in Parsons v. Bedford, and the counsel of the appellee admit the propriety of that decision. The act, in general terms, provides, that the mode of proceeding in civil causes, in the courts of the United States, in Louisiana, shall be conformable to the laws directing the mode of practice in the district courts of said state; but the judge of the United States court is authorized to make such provisions as may be necessary to adapt the state laws of procedure to the organization of such court of the United States, and to avoid any discrepancy, if any such should exist, between such state laws, and the laws of the United States. * The terms of the act are broad enough to comprehend every J description of civil causes ; suits in equity as well as suits at law ; 422 1835] . OF THE UNITED STATES. 647 Livingston v. Story. and to require that all of them shall conform to the laws directing the mode of proceeding in the state courts ; but whether suits in equity are or are not comprehended, must depend on the laws of Louisiana, which are made the guide, subject to the power of modification in the judge. If the laws of Louisiana contain no direction as to the mode of practice in suits of equity, as contradistinguished from suits of law, and if this distinction is, as has been stated, unknown to the courts of that state, then it is submitted, as the true construction of the act of May 1824, that the practice in equity suits must stand upon the process act of 1792, because there is no direction in the state laws to affect the practice in such suits. It cannot be reasonably contended, that if the state laws did not direct the mode of practice in the district courts of the state, in any respect, that, nevertheless, the practice of the United States courts, in equity suits, was to undergo a change, and to conform to the practice of the state courts. The conformity required, is that of the practice of the United States courts to the laws, directing the mode of practice in the state courts, and not to practice itself ; and this is the plainer, from the power given to the judge, by the proviso, which is, to make such rules, &c., as shall avoid the discrepancy, if there be any, not between the practice of the state courts and that of the federal courts, but between such state laws and the laws of the United States. The intention of the act of 1824 was, in fine, to subject the practice of the United States courts to the directions of the law of the state, if there were any, as it was before subjected to the laws of the United States; merely providing, by a power in the judge, to render the laws of procedure conformable with the organization of the court, and to prevent discrepancy; but it was not the intention of the act, to change the practice, if there was no such direction. Now, if the state laws make no direction as to the mode of proceeding in the state courts, then the act of 1824 is wholly without effect; and if the state laws contain no direction as to suits in equity in the state courts, then the act is wholly without effect upon suits in equity in the United States courts. As there was no absolute repeal of the antecedent equity practice, by the act of 1824, that practice continues in force, until the state laws contain a *direction in regard to the practice in such .. suits in the state courts. The counsel for the appellee contend, that as the act of 1824 leaves the judge the power to modify the state proceedings, ee it follows, that until he does modify them, they form the rule; and that were it otherwise, the proviso would be the rule, and the general enacting clause the exception.” But this is plainly a non sequitur; for the state proceedings do not form the rule in equity, until the judge modifies them, unless the direction in the state laws applies to the practice of suits in equity. If it does not, no modification is necessary, because the state law, for want of a direction, does not apply at all. The learned counsel also contend, that although there is no absolute repeal of antecedent modes of proceeding, authorized by former acts of congress, yet, “ there is a repeal sub modo; that is, the state forms of proceedings take place of the common law and English remedies, unless the judge revives them.” But this begs the very question. The argument for the appellant is, on the contrary, that there is no appeal, absolute or sub modo, of the antecedent modes, unless the state law contains a direction 423 648 SUPREME COURT [Jan’y Livingston v. Story. in regard to the suits in which those antecedent modes of practice were authorized. If it is silent in regard to suits in equity, then the antecedent practice in equity is not repealed at all. The counsel for the appellee state their proposition, in the following terms : “Thai the congress of the United States may adopt what forms of proceeding it thinks fit, for the administration of justice in its equity courts, provided it preserves to the suitors the power of the court over proof, and the capacity to extend relief, which distinguish a court of equity from a court of common lawand “that congress has, clearly, by the act of 1824, adopted the Louisiana practice ; for what does that act say ? The mode of proceeding in civil causes in the United States court shall be conformable to the law directing the modes of practice in the state court, unless the judge modify them. Well, he has not modified them. Then, why should we not have the state practice ?” The answer may be readily given. The proposition is not consistently pursued throughout. Congress has not, by * , the act of 1824, adopted the Louisiana practice, generally or *abso- J lutely, as the proposition imports ; nor does that act adopt the practice at all. The very terms quoted by the counsel are, that the proceedings in the United States courts are to be conformable to the laws directing the practice ; and unless the laws direct the practice in equity suits in the state courts, they contain no direction to which the equity practice in the United States can conform ; in other words, there is no law of Louisiana upon the subject of equity suits, and consequently, there is no law for the practice in equity suits to conform to. The state practice, therefore, is not to be followed in an equity cause, because it is the practice in suits at law, as distinguished from equity, and not the practice in suits in equity as distinguished from law ; in regard to which latter suits, there is no law of Louisiana directing anything. It may, perhaps, be said, that the arguments thus stated mistake the intention of the act of 1824, which was to make the practice in the courts of the United States, in suits of all kinds, conform to the directions of the law of Louisiana, in suits of any kind ; and that this is shown by the terms of the law, which says that the mode of proceeding in such causes in the courts of the United States, shall be conformable to the laws directing the practice in the district courts of the state, without saying in what causes, whether of one description or another. It is submitted, however, that the act is most reasonably interpreted, in being held to give effect to the law of Louisiana, in cases to which it applies, and not in cases to which it does not apply. If the argument stated in the preceding paragraph is carried out, it will extend to this : that the law directing the practice in suits between ordinary parties in the state courts, is to govern in causes of admiralty and maritime jurisdiction in the United States courts—for these are certainly civil causes, and come as fuXy within the letter as suits in equity. It will extend even to this : that the state law directing the modes of proceeding in criminal causes, is to govern in the United States courts in civil causes—which is, of course, too extravagant to be maintained. But where is the line to be drawn, if it has not been truly drawn in the preceding remarks by the counsel for the appellee? The conformity which the act of intended to produce, is the conformity between corresponding ■* or similar causes, and not between causes *having no correspond-424 1835] OF THE UNITED STATES. 650 Livingston v. Story. ence or similarity ; and it refers to the law, and not to the practice of the state courts, for this very reason. If the reference had been to the practice of the state courts, in civil causes, and not to the law, it might be considered that the practice was rigorously adopted, however incongruous, and whether applicable or not; but when the reference is to the law directing the practice, then the reason, spirit, intention, scope and application of the law, altogether, form a part of it; and if it means to give no direction in regard to suits of a certain description, it is as to them as if it were no law. The result of these remarks may be briefly stated as follows : the act of 1824 intended that the practice in the United States courts should follow the direction of the law of Louisiana regulating the practice of the state courts. That law does contain a direction in regard to suits at law, and to this direction, suits at law in the United States court must conform, subject to the power of modification in the judge. It does not contain a direction in regard to suits in equity ; and therefore, such suits are to follow the antecedent modes of procedure authorized by former acts of congress. The rules of proceeding in the state court, however clearly the counsel for the appellee may have shown, that “ they are fully adapted to a^jourt of equity,” are not the practice of the courts of the United States, because no law of congress has enacted that they shall be. It is not enough, to show that the state practice is adapted to a court of equity, it must also be shown that it has been adopted for equity suits in the United States court, by an act of congress. On this point, however, of adaptation of the state mode of procedure to suits in equity, the counsel for the appellant will make a few remarks. That, by modifications, it may become adapted to such suits, need not be controverted ; for the basis of the state procedure being petition and answer, if the power of modification is unbounded, it may, of course, be modified to the very point of adaptation. The act of 1824, indeed, authorizes the very end or result, by enacting, that the judge may make such rules and provisions as may be necessary to adapt the state laws of procedure to tlje organization of the federal court; and where the counsel for the appellee find a reason for their strenuous claim to the benefit of the state practice, *in preference to what they style the chancery practice of England, when L the power of modification under the act of 1824 is large enough to produce a perfect similitude of the two, it is difficult to perceive. That the 'practice of the state courts is not adapted, at present, to suits in equity, has not, it is believed, been shown, nor can it be. It must be useless, to point out all, or, indeed, any of the differences which exist between the two modes of procedure ; the statement of a general principle will be sufficient to show it, and that is, that the remedies in equity result from the principles of equity, and that they must be sought, obtained and used in conformity to those principles. A mode of procedure which does not acknowledge the distinction, cannot give the remedies which depend upon the distinction. It may, without doubt, be made to give them, by modifications ; but to say this, is to say, that in their present state, they cannot give them. Whether the act of congress might not safely have extended this mode of procedure to suits in equity alone, with a power of modification, is, however, not the question ; for it may, perhaps, safely extend any mode of procedure, with the same modifying power; but it is, whether they have 425 651 SUPREME COURT [Jan’y Livingston v. Story. extended it by the act of 1824 ; and that they have not, has, it is hoped, been already shown. There is one remark, which it is deemed proper to make, in regard to proceedings in equity suits in the courts of the United States. The distinction between law and equity exists in the constitution, as well as in the organization of the federal courts. It cannot be lawful to confound it. Rights of the highest nature depend upon it. If the case is an equity case, its modes of proof and trial, as well as its decrees, are of one kind ; if at law, they are of another. A plaintiff cannot submit the trial of facts, in a case at law, to the court; nor can the facts, in such a case, when tried by a jury, be reviewed by the court. These are great constitutional provisions, and they cannot be secured, without maintaining the distinction between suits at law and suits in equity ; or without maintaining equity pleadings, which are essential to give effect to the distinction. The pleadings mast show a case in equity, and not a case at law; they must be such as to enable the court to form the issue, and also to decide it; such also as to give sj. the parties the benefit of *a review in the supreme court : the plead- J ings, the proofs and the decree, must all be so framed, as to show what is asked, what is the party’s right to it in equity; what is granted, and that what is granted is within the competency of a court of equity; and that a code of procedure for cases at law will answer fully these ends, is not admitted, and has not been shown. That the principles of equity can be so applied in Louisiana as to give an effect to contracts and transactions in violation of the laws of the state, is a position that it was not expected to find in the argument for the appellees, manifesting so strong a regard for the legislature of that state. Those principles are of universal obligation, from their conformity to justice and conscience between the parties, and to the will of the legislature, which can never be presumed to authorize what is contrary to either ; and therefore, can never be applied, except to promote probity and fair-dealing among men, and to aid the laws of the land in advancing both. Thompson, Justice, delivered the opinion of the court.—The appellant, Edward Livingston, filed his bill of complaint in the district court of the United States for the eastern district of Louisiana, against the appellee, Benjamin Story, to set aside a conveyance made by him, of certain lots of land in the city of New Orleans, and to be restored to the possession of said lots ; alleging that the deed was given on a contract for the loan of money. Although in the form of a sale, it was in reality a pledge for the repayment of the money loaned, and calling for an account of the rents and profits of the property. To this bill, the defendant demurred; and the court sustained the demurrer and dismissed the complainant’s bill, and the cause comes into this court on appeal. It will be enough for the purpose of disposing of the questions which have been made in this case, to state only some of the leading facts which are set forth and stated in the bill. The bill alleges, that on or about the 25th of July 1832, the defendant and John A. Fort loaned to him, the complainant, the sum of $22,936, to secure the payment of which, with interest at the rate of eighteen per cent, per annum, he conveyed to them at lot of ground in New Orleans, with the *buildings and ini' 426 1835] OF THE UNITED SPATES. 653 Livingston v. Story provements thereon. That a counter-letter or instrument was, at the same time, executed by the other parties, by which they stipulated to reconvey the property, on certain conditions. That the lot was covered with fifteen stores, in an unfinished state, and the object of the loan was to complete them. The property is stated to have been worth at that time $60,000, and is now worth double that sum. That the complainant, soon after the said transaction, left New Orleans, where he then resided, on a visit to the state of New York, expecting that, during his absence, some of the stores would have been finished, or in a state to let. That on his return, he found that Story and Fort had paid $8000 to a contractor, who had failed to finish the buildings, the rent of each of the three smallest of which would be the interest of $10,000 a year, when finished. A further time was requested for the payment of the money, which Story and Fort would not agree to, but upon condition that the property should be advertised for sale on a certain day named ; that the sum due should be increased from $25,000 to $27,000, which sum was made up by adding to the $25,000 the following sums ; $1500 for interest for the delay of four months, at eighteen per cent. ; $800 for auctioneer’s commissions ; $50 for advertising, and $200 arbitrarily added, without any designation ; and that he, the complainant, should annul the counter-letter given to him by Story and Fort. That the complainant, being entirely at the mercy of the said Story and Fort, consented to these terms, in hopes of being able to relieve himself before the day fixed for the sale of his property ; but being disappointed, he was on that day, in order to obtain a delay of sixty days, forced to consent to sign a paper, by which it was agreed that the debt should be augmented to the sum of $27,830, and that if the same was not paid at the expiration of the sixty days, the property should belong to the said Fort and Story, without any sale. The bill contains some other allegations of hardship and oppression, and alleges, that the rents and profits of the property, received by Fort and Story, in the lifetime of Fort, and by Story, since the death of Fort, amounts, at least, to $60,000. The bill then prays that the said Benjamin Story may be cited to appear to the bill of complaint, and answer the interrogatories therein propounded. *The defendant in the court below, demurs to the whole bill, and for cause shows, that the complainant has not by his said bill made L such a case as entitles him, in a court of equity, in this state, to any discovery from this defendant, touching the matters contained in this bill, nor any or either of such matters ; nor entitled the said complainant to any relief in this court, touching any of the matters therein complained of. The want of proper parties is also assigned for cause of demurrer. The court below did not notice the want of parties, but sustained the demurrer, on the other causes assigned. The argument addressed to this court has been confined principally to the general question, whether the district court of the United States, in Louisiana, has equity powers ; and, if so, what are the modes of proceeding in the exercise of such powers. The great earnestness with which this power has been denied, at the bar, to the district court, may make it proper briefly to state the origin of the district court of that state, and the jurisdiction conferred upon it by the laws of United States. When the constitution was adopted, and the courts of the Union organized, and their jurisdiction distributed, Louisiana formed no part of this Union. It is not rea- 427 654 SUPREME COURT [jan*y Livingston v. Story. sonable, therefore, to conclude, that any phraseology has been adopted, with a view to the peculiar local system of laws in that state. She was admitted into the Union, in the year 1812 ; and by the act of congress, passed for that purpose (2 U. S. Stat. 701), it is declared, that there shall be established a district court, to consist of one judge, to be called the district judge, who shall, in all things, have and exercise the same jurisdiction and powers, which, by the act, the title whereof is in this section recited, were given to the district judge of the territory of Orleans. By the act here referred to for the jurisdiction and powers of the court (2 U. S. Stat. 285), a district court is established, to consist of one judge ; and it declares, that he shall, in all things, have and exercise the same jurisdiction and powers which are by law given to, or may be exercised by, the judge of the Kentucky district. And by the judiciary act of 1789 (1 U. S. Stat. 77), it is declared, that the district court in Kentucky shall, besides the jurisdiction given to other district *655-i courts, have jurisdiction of all other causes, except of appeals *and J writs of error, hereinafter made cognisable in a circuit court, and shall proceed therein in the same manner as a circuit court. And such manner of proceeding is pointed out by the process act of 1792 (1 U. S. Stat. 276), which declares, that the modes of proceeding, in suits of common law, shall be the same as are now used in the said courts, respectively, in pursuance of the act entitled, “ an act to regulate process in the courts of the United States,” viz., the same as are now used and allowed in the supreme courts of the respective states (1 U. S. Stat. 93), and in suits of equity, and those of admiralty and maritime jurisdiction, according to the principles, rules and usages which belong to courts of equity and courts of admiralty, respectively, as contradistinguished from courts of common law ; subject to such alteration by the courts as may be thought expedient, &c. From this view of the acts of congress, it will be seen, that prior to the act of 1824, which will be noticed hereafter, Louisiana, when she came into the Union, had organized therein a district court of the United States, having the same jurisdiction, except as to appeals and writs of error, as the circuit courts of the United States, in the other states. And that in the modes of proceeding, that court was required to proceed according to the principles, rules and usages which belong to courts of equity, as contradistinguished from courts of common law. And whether there were or not, in the several states, courts of equity proceeding according to such principles and usages, made no difference, according to the construction uniformly adopted by this court. In the case of Robinson v. Campbell, 3 Wheat. 222, it is said, that in some states in the Union, no court of chancery exists, to administer equitable relief. In some of the states, courts of law recognise and enforce, in suits at law, all equitable claims and rights which a court of equity would recognise and enforce; and in others, all relief is denied, and such equitable claims and rights are to considered as mere nullities at law; and a construction, therefore, that would adopt the state practice in all its extent, would at once extinguish in such states the exercise of equitable jurisdiction. That the acts of congress have distinguished between remedies at common law and in equity, and that to effectuate the purposes of the legislature, the remedies in the courts of the United States are to J be at common law or in equity, not according to practice of the state 4^8 ' 1835] OF THE UNITED STATES. 656 Livingston v. Story. courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of those principles. So also, in the case of the United States v. Howland, 4 Wheat. 114, the bill was filed on the equity side of the circuit court of the United States, in Massachusetts, in which state there was no court of chancery ; and in answer to this objection, the court say, “ as the courts of the Union have a chancery jurisdiction in every state, and the judiciary act confers the same chancery powers on all, and gives the same rule of decision, its jurisdiction in Massachusetts must be the same as in other states.” That congress has the power to establish circuit and district courts in any and all the states, and confer on them equitable jurisdiction, in cases coming within the constitution, cannot admit of a doubt. It falls within the express words of the constitution. “ The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish.” Art. 3. And that the power to ordain and establish, carries with it the .power to prescribe and regulate the modes of proceeding in such courts, admits of as little doubt. And, indeed, upon no other ground can the appellee, in this case, claim the benefit of the act of 1824. (4 U. S. Stat. 62.) The very title of that act is, to regulate the mode of practice in the courts of. the United States, in the district of Louisiana ; and it professes no more than to regulate the practice. It declares, that the mode of proceeding in civil causes, in the courts of the United States, that now are, or hereafter may be, established, in the state of Louisiana, shall be conformable to the laws directing the mode of proceeding in the district courts of said state. And power is given to the judge of the United States court, to make, by rule, such provisions as are necessary to adapt the laws of procedure in the state court, to the organization of the courts of the United States ; so as to avoid any discrepancy, if any such should exist, between such state law's and the laws of the United States. The descriptive terms here used, civil actions, are broad enough to embrace cases at *Iaw and in equity ; and may very fairly be construed, as used in contradistinction to criminal L causes. There are no restrictive or explanatory words employed, limiting the terms to actions at law. They apply equally to cases in equity ; and if there are any laws in Louisiana, directing the mode of procedure in equity causes, they are adopted by the act of 1824, and will govern the practice in the courts of the United States. But the question arises, what is to be done, if there are no equity state courts, nor any laws regulating the practice in equity causes. This question would seem to be answered by the cases already referred to, of Robinson n. Campbell, and the United States v. Howland. And also by the case of Parsons v. Ledford, 3 Pet. 444. In the latter case, the court say, “ that the course of proceeding, under the state law of Louisiana, could not, of itself, have any intrinsic force or obligation in the courts of the United States organized in that state, except so far as the act of 1824 adopted the state practice ; that no absolute repeal was intended, of the antecedent modes of proceeding authorized in the courts of the United States, under the former acts of congress.” If, then, as has been asserted at the bar, there are no equitable claims or rights recognised in that state, nor any courts of equity, nor state laws 429 657 SUPREME COURT Livingston v. Story. [Jan’y regulating the practice in equity causes, the law of 1824 does not apply to the case now before this court; and the district court was bound to adopt the antecedent mode of proceeding, authorized under the former acts of con. gress : otherwise, as is said in the case of Robinson v. Campbell, the exercise of equitable jurisdiction would be extinguished in that state ; because no equitable claims or rights which a court of equity would enforce, are there recognised. And there being no court of equity in that state, does not prevent the exercise of equity jurisdiction in the courts of the United States, according to the doctrine of this court in the case of the United States n. Howland, which arose in the state of Massachusetts, where there are no equity state courts. We have not been referred to any state law of Louisiana, establishing any state practice in equity cases ; nor to any rules adopted by the district judge in relation to such practice ; and we have some reason *6581 to con°lude, that no such rules exist. For, in a record now before *us, J from that court, in the case of Sebastian Hiriart v. Jean Cassies Ballon (ante, p. 156), we find a set of rules, purporting to have been adopted by the court on the 14th of December 1829, with the following caption : li General rules for the government of the United States court in the eastern district of Louisiana, in civil causes or suits at law, as contradistinguished from admiralty and equity causes, and criminal prosecutions ; made in pursuance of the 17th section of the judiciary act of 1789, and of the first section of the act of congress of the 26th of May 1824, entitled, ‘an act to regulate the mode of practice in the courts of the United. States for the district of Louisiana.’ ” And all other rules are annulled ; and these rules relate to suits at law and in admiralty only, and not to suits in equity. From which it is reasonable to infer, that the district judge did not consider the act of 1824 as extending to suits in equity ; and if so, it is very certain, that the demurrer ought to have been overruled. For, according to the ordinary mode of proceeding in courts of equity, the matters stated in the bill are abundantly sufficient to entitle the complainant, both to a discovery and relief; and by the demurrer, everything well set forth, and which was necessary to support the demand in the bill, must be taken to be true. 1 Ves. sen. 426 ; 1 Ves. jr. 289. And if any part of the bill is good, and entitles the complainant, either to relief or discovery, a demurrer to the whole bill cannot be sustained. It is an established and universal rule of pleading in chancery, that the defendant may meet a complainant’s bill by several modes of defence. He may demur, answer and plead to different parts of a bill. So that if a bill for discovery and relief contains proper matter for the one, and not for the other, the defendant should answer the proper, and demur to the improper matter. But if he demurs to the whole bill, the demurrer must be overruled. 5 Johns. Ch. 186; 1 Johns. Cas. 433. But if we test this bill by any law of Louisiana which has been shown at the bar, or that has fallen under our observation, the demurrer cannot be sustained. The objection founded on the alleged want of proper parties, , *6591 because the heir and *residuary legatee of John A. Fort is not made J a party, is not well founded. The bill states, that in the year 1828, after the death of Fort, the defendant, Benjamin Story, took the whole of the property, by some arrangement with the heirs of Fort; and that he I ever since has been, and is now, in the whole possession thereof, and has I 430 1835] OF THE UNITED STATES. 659 Livingston v. Story. received the rents and profits of the same. This fact the demurrer admits; whereby, Benjamin Story became the sole party in interest. The causes of demurrer assigned, are general; that the complainant has not, by his bill, made such a case as entitles him, in a court of equity in that state, either to a discovery or relief. In the argument at the bar, there has been no attempt to point out in what respect the bill is defective, either in form or substance, as to the discovery, if it is to be governed by the ordinary rules of pleading in a court of chancery. And if the objection rests upon the want of the right in the complainant to call upon the defendant for any discovery at all, the objection is not sustained even by the laws of Louisiana. But on the contrary, it is expressly provided by a law of that state, that when any plaintiff shall wish to obtain a discovery from the defendant, on oath, such plaintiff may insert in his petition, pertinent interrogatories, and may call upon the defendant to answer them on oath; and that the defendant shall distinctly answer to such interrogatories, provided they do not tend to charge him with any crime or offence against any penal law; neither of which has been pretended in this case. 2 Mart. Dig. 158. Nor has it been attempted to point out in what respect the bill of complaint is defective, either in form or substance, as to the matters of relief prayed. In this respect also, the bill, according to the ordinary course of proceeding in a court of chancery, is unobjectionable; and indeed, would be amply sufficient in the state courts, under the law of Louisiana, which declares, that all suits in the supreme court shall be commenced by petition, addressed to the court, which shall state the names of the parties, their places of residence, and the cause of action with the necessary circumstances of places and dates; and shall conclude with a prayer for relief adapted to the circumstances of the case. 2 Mart. Dig. 148. These are the *essential requisites in an ordinary bill in chancery. It can cer-tainly not be pretended, that it is any objection, in the case before L us, that the bill filed is called a bill of complaint, instead of a petition. The sufficiency of the objections, therefore, must turn upon the general question, whether the district court of Louisiana has, by the constitution and laws of the United States, .the same equity powers, as a circuit court of the United States has, in the other states of the Union ; and we think it has been already shown that it has ; but that, according to the provisions of the act of 1824, the mode of proceeding in the exercise of such powers, must be conformable to the laws directing the mode of practice in the district courts of that state, if any such exist; and according to such rules as may be established by the judge of the district court, under the authority of the act of 1824. And if no such laws and rules applicable to the case exist in the state of Louisiana, then such equity powers must be exercised according to the principles, rules and usages of the circuit courts of the United States, as regulated and prescribed for the circuit courts in the other states of the Union. The decree of the district court must, accordingly, be reversed ; and the cause sent back for further proceedings. McLean, Justice.—The inferior courts of the United States can only exercise jurisdiction under the laws of congress ; and a general law giving equity jurisdiction will apply as well to the courts of the United States in 431 660 SUPREME COURT [Jan’y Livingston v. Story. Louisiana, as in any other state in the Union. The same may be said as to a general law regulating the exercise of a common-law jurisdiction. But as it regards the courts of the United States in Louisiana, congress have made an exception from the general law, by the act of 1824. This act provides, “ that the mode of proceeding in civil causes in the courts of the United States, that now are, or hereafter may be, established in the state of Louisiana, shall be conformable to the laws directing the mode of practice in the district court of the said state : provided, that the judge of any such court of the United States may alter the times limited or allowed for differ-ent proceedings in the state *courts, and make, by rule, such other ■* provisions as may be necessary to adapt the said laws of procedure to the organization of such court of the United States; and to avoid any discrepancy, if any such should exist, between such state laws and the laws of the United States.” The proceedings in the state courts of Louisiana are conformable to the civil law ; and the same course of proceeding under the above law, has been adopted in the district court of the United States in that state; and by the judgment of this court, this course of practice has been sustained. The above act applies to all civil causes, and, of course, embraces all causes both at common law and in chancery ; and its provisions apply as forcibly to an equitable jurisdiction, as to one exercised in accordance with the rules of the common law. The peculiar mode of procedure under the Louisiana practice, preserves, substantially, the same forms in affording a remedy in all cases. And whether the ground of action be in the principles of the common law, or in the exercise of an equitable jurisdiction, by this mode of proceeding an adequate remedy is given. In “an act further to regulate process in the courts of the United States,” passed in 1828, and which provides for “ proceedings in equity, according to the principles, rules and usages which belong to courts of equity,” &c., it is declared, that its provisions shall not be extended to any court of the United States in Louisiana. No stronger legislative provision could have been adopted to show that congress did not consider that the “ principles, rules and usages which belong to courts of equity,” were in force in that state. And this view was, in my opinion, correct, as the law of 1824 had made the federal court practice in Louisiana an exception to the general law on the subject. If the principles, rules and usages, which belong to courts of equity, are to be regarded in the district court of Louisiana, the same principle must adopt, in the same court, the rules and usages which belong to courts of common law. But the latter have been abrogated by the act of 1824, agreeable to the decision of this court; and it appears to me, this decision must equally apply to the former. If the act of 1824 be *regarded, it must regulate the mode of proceeding in all civil J causes, as contradistinguished from criminal ones. This cause came on to be heard, on the transcript of the record from the district court of the United States for the eastern district of Louisiana, and was argued by counsel: On consideration whereof, it is ordered ana decreed by this court, that the decree of the said district court in this cause be and the same is hereby reversed; and that this cause be and the same is 432 1835] OF THE UNITED STATES. Winn v. Patterson. 662 hereby remanded to the said district court for further proceedings to be had therein, according to law and justice, and in conformity to the opinion and decree of this court.1 *Elisha Winn and others, Plaintiffs in error, v. William Pat- [*663 TERSON. Secondary evidence.—Certified copies.—Fraud to avoid a grant of land. Ejectment for a tract of land in Franklin county, Georgia, held under a grant to Basil Jones, and conveyed by the attorney of Basil Jones to the defendant in error. (See 11 Wheat. 380; 5 Pet. 233.) A copy of the grant was produced in evidence ; and a copy of a power of attorney, dated 6th of August 1793, to Thomas Smith, authorizing him to sell the land, executed in the presence of Abram Jones, J. P. and Thomas Harwood ; this copy was certified from the records of Richmond county, Georgia, and recorded 11th of July 1795; the original power of attorney was lost, and evidence of the loss, to introduce the copy, was given. What evidence is sufficient to introduce secondary proof. The deputy-clerk of the Richmond county court, who, as such, had recorded the original power of attorney, testified, that he was well acquainted with Abram Jones, Esquire, and his handwriting, during the year 1793, &c., that the record of the power of attorney from B. Jones to T. Smith, made by himself, while clerk of the court, was a copy of an original power of attorney, which he believed to have been genuine, for that the official signature of Abram Jones must have induced him to commit the same to record; and that the copy of that said power of attorney, the one offered in evidence, had been compared with the record of the original made by himself, and was a true copy.. Upon this evidence, the plaintiff offered the copy in evidence, and it was admitted by the circuit court: Held, that there was no error in admitting this evidence. At the time of the admission of this evidence, it was forty years old; Abram Jones, the subscribing witness to the original, was long since dead, and did not appear that the other witness was alive; the original power did not exist, so that no evidence of the handwriting of the other witness could be given. After the lapse of thirty years from the execution of a deed, the witnesses are presumed to be dead ; and this is the common ground for dispensing with the production of them, without any search for them, or proof of their death, when the original deed is before the court for proof; this rule applies not only to grants of land, but to all other deeds, where the instrument comes from the custody of the proper party claiming under it, or entitled to its custodv. Patterson v. Winn, 5 Pet. 233, 244, cited. The rule is admitted, that a copy of a copy is not evidence ; this rule properly applies to cases where the copy is taken from a copy, the original being still in existence ; and capable of being compared with it, for then it is a second remove from the original; or when it is a copy of a copy of a record, the record being in existence, and deemed by law' as high evidence as the original; for then it is also a second remove from the original. But it is a quite different question, whether it applies to cases of secondary evidence, where the original is lost, and the record of it is not deemed in law as high as the original, or when the copy of a copy is the highest proof in existence (in this case, the power of attorney was recorded in Richmond *county and the land in controversy was in Franklin county): Held, that this is not the case ot a mere copy of a copy, verified as such; but it is the case of a second copy, verified as a true copy of the original. . . . If a certified copy of a duly-recorded deed is evidence, it is not necessary to produce the original book in which the same was recorded.2 . There are cases where grantsand securities made contrary to the prohibitions of a statute, m part, are, upon the true construction of the intent of the statute, void in toto ; but it is very different, in cases standing merely on the common law ; and, therefore, at the common law, in order to 1 For further proceedings in this case, see 11 Pet. 351; 12 Id. 339 ; and 13 Id. 359. 2 A certified copy of an instrument is not evidence, if the law do not authorize it to be recorded. James v. Gordon, 1 W. C. C. 333 ; 9 Pet.—28 Barger v. Miller, 4 Id. 280 ; New York Dry-Dock v. Hicks, 5 McLean 111 ; Ormsby v. Tim gey, 2 Or. C. 0. 128 ; Lemon v. Bacon, 4 Id. 466 ; Kerns v. Swope, 2 Watts 75. 433 664 SUPREME COURT [Jan’y Winn v. Patterson. make a grant void, in toto, for fraud or covin, the fraud or covin must infect the whole transaction, or be so mixed up in it, as not to be capable of a distinct and separate consideration. A grant may be good for part of the land granted, and bad as to other parts of the same. Patterson v. Jenks, 2 Pet. 216, 235, cited. Ebboe to the Circuit Court of Georgia. In February 1820, an action of ejectment was instituted in the circuit court, by the lessee of William Patterson against Elisha Winn and others, to recover a tract of land in the county of Franklin, in the state of Georgia. The case had been twice before this court on writ of error. (11 Wheat. 380, and 5 Pet. 233.) Many of the material facts in the case will be found in the reports referred to. At November term 1833, of the circuit court, in pursuance of the mandate of this court, a new trial of the case took place ; and the plaintiff gave in evidence a grant from the state of Georgia to Basil Jones, for 7300 acres of land, including the lands in controversy in this suit, dated 24th May 1787, with a plat of the survey of the said land annexed ; a copy of a power of attorney from Basil Jones to Thomas Smyth, jr., purporting to be dated the 6th of August 1793, authorizing Smyth, inter alia, to sell and convey the tract of 7300 acres ; which power purported to be signed and sealed in the presence of Abram Jones, J. P., and Thomas Harwood, jr.; and the copy was certified to be a true copy from the records of Richmond county, Georgia, and recorded there on the 11th J uly 1795 ; and to account for the loss of the original power of attorney, of which the copy was offered, and of the use of due diligence and search for the same, the plaintiff read the depositions of William Patterson and others, the particulars of which, and all the evidence in the case, are stated in the bill of exceptions. * , The defendant objected to the evidence, and *the court overruled -* the objection, and allowed the paper to be read to the jury. To this decision of the court, the defendant excepted, and the court sealed a bill of exceptions. In the further progress of the case, further evidence was offered, and certain instructions thereon asked of the court, which were refused; and the refusal of the court to give such instructions was the subject of another exception. The jury, under the charge of the court, found a verdict for the plaintiff, upon which judgment was entered ; and the defendants prosecuted this writ of error. The bills of exception were as follows: The plaintiff, to maintain the issue on his part, gave in evidence a copy of a grant from the state of Georgia to Basil Jones, for 7300 acres, bearing date on the 24th day of May 1787, together with a plat of survey of the said land thereto annexed (a copy of which plat and grant was in the record) ; and further offered to give in evidence to the jury, a paper writing, purporting to be a copy of a power of attorney from Basil Jones to Thomas Smyth, Junior, executed on the 6th day of August 1793, by Basil Jones, in the presence of Abram Jones, J. P., and Thomas Harwood, on which copy there was a certificate under the official seal of John H. Mann, clerk of the superior court of Richmond county, stating that it was a true copy from the record in his office, entered on book, &c., on the 11th July 1795. A certificate from John H. Montgomery, one of the judges of the superior court, was annexed, stating that the officer who certified the copy, was the clerk of the superior court, that his signature was entitled to full faith and credit, and that the 434 1835] OF THE UNITED STATES. 665 Winn v. Patterson. attestation was in due form. The power of attorney authorized Thomas Smyth, Junior, to sell and dispose of 7300 acres of land granted to Basil Jones, part of which is the land for which this ejectment was brought. To account for the loss of the original power of attorney, the plaintiff below produced his affidavit, stating his belief that the said original grant to Basil Jones had been lost or destroyed. This affidavit was made on the 23d of July 1833 ; also the deposition of Andrew Fleming, stating numerous and particular acts which he had performed to discover the said *originals. This deposition set forth diligent examinations for the lost papers, in various places, and by inquiries of all such persons where and with whom the said papers might probably have been found, if they had not been altogether lost or destroyed. Also thq answers to interrogatories of Anna Maria Smyth, the widow of Thomas Smyth, relative to the lost papers, and stating that she had not been able to find them among the papers of her deceased husband, nor had she ever seen them, although she had the custody of all the papers left by her deceased husband. * And further to account for the loss of the said original power, Bichard H. Wilde, Esq., was examined, on interrogatories propounded to him, who stated, that he had made diligent search for the said power of attorney, with the assistance of the clerk, in the clerk’s office of the superior court of Richmond county, without success. That he had applied to the widow of Basil Jones for the paper and for the original grant, who was unable to find the same ; and had advertised for the same for some months, in two newspapers in Georgia; he had inquired for the same, at the office of the secretary of state of Milledgeville, and had searched the the clerk’s office at Columbia, where Basil Jones formerly resided ; and also had made numerous other searches and inquiries. A copy of the advertisement for the lost papers was inserted in the examination. The testimony of John H. Wilde, Esq., was also introduced, who proved, that, by reputation, Abram Jones was dead long since ; that he compared the copy of the power of attorney offered in evidence with the record in the clerk’s office of Richmond superior court, and it is a true copy. William Patterson, the plaintiff in the circuit court, he believed, had never been in Georgia. William Robertson deposed, that he was deputy-clerk, and acted as such of Richmond county, in the year 1794, and clerk of the said court in 1795, and continued in that office till 1808 or 1809 ; that he was well acquainted with Abram Jones, Esq., and his handwriting, during the years 1793, 1794 and 1795, and before and afterwards. The deponent further states, that the record of a power of attorney from B. Jones to Thomas Smyth, Junior, made by himself, wh^e clerk *of that court, is a copy of an original power of attorney, which he believes to have been genuine, for that L the official signature of Abram Jones must have induced him to commit the same to record ; and that the copy of said power of attorney transmitted with deponent’s depositions has been compared by himself with the record of the original made by himself in Richmond county, and is a true copy. The plaintiff then offered the paper purporting to be a copy of the power of attorney in evidence ; which was opposed by the counsel for the defendants, as not admissible evidence. The counsel for the lessor of the plaintiff, further to prove the original 43$ 667 SUPREME COURT [Jan’y Winn v. Patterson. power of attorney was made and executed, gave in evidence a deed executed Ijy Thomas Smyth, Junior, alleging himself to be the attorney in fact of Basil Jones, dated 18th November 1793, which conveyed to William Patterson, the lessor of the plaintiff, 7300 acres of land in Franklin county, originally granted to Basil Jones, May 24th, 1787 ; which deed also conveyed, or purported to convey, four other tracts of land, situate in Franklin county, and contained the following recital : “ Whereas, the said Basil Jones, by a certain writing or letter of attorney, dated the sixth day of August last past, did empower and authorize the said attorney (Thomas Smith, Junior), in his, the said Basil Jones’s name, to sell or dispose of five certain tracts or parcels of land hereinafter mentioned, situate in Franklin county, in the state of Georgia aforesaid/’ And the plaintiff offered in evidence proof that Abram Jones, who signed the original power of attorney, was, at the time he signed the same, a justice of the peace of the county of Richmond; which was admitted by the defendant’s counsel. The plaintiff’s counsel then insisted, that the copy of the power of attorney was admissible in evidence, and should go to the jury, which was opposed by the defendants’ counsel; but the court admitted the same, and the counsel for the defendants excepted to the said admission. The plaintiff also offered three witnesses before the jury, to prove the identity of the land in dispute, with a plat of the same, given in evidence, and that the defendants were in possession of the part for which this suit was brought, and also the location of the land ; which witnesses also proved, Par^ sa^ land, which lay on the south and west of the -* said Appalachee river, was not, at the time of issuing the said grant, situate in the county of Franklin, as the grant purported it to be, but was without the then county of Franklin, and beyond the then temporary boundary line of the state of Georgia. Whereupon, the attorney for the said defendants prayed the said justices to instruct the said jury, that if the jury believed, that Basil Jones, the deputy-surveyor and grantee, under whom the lessor of the plaintiff claims, by designating the stream marked in the original plat, as “ the branch of the south fork of the Oconee river, instead of the south fork of the Oconee river, and by stating that the land was situate in the county of Franklin, when a large part of it lay without the county of Franklin, and without the temporary boundary line of the state of Georgia, practised a deception upon the governor of the state, and thereby induced him to issue the grant; that such grant is fraudulent and void, and cannot entitle the plaintiff to recover which instruction the said justices refused to give to the said jurors. And the said attorney further prayed the said court to instruct the said jurors, that a grant of land is an entirety, and that a grant void in part is void for the whole ; which instruction the said justices also refused to give the said jurors; And they further prayed the said court to instruct the said jurors, that a concealment or mis-, representation of material facts, calculated to deceive the governor issuing the grant, renders the grant null and void in law ; which instruction the said justices also refused to give to the said jurors, and the jurors gave their verdict against the said defendants, upon the issue aforesaid. The case was argued by Seaborn Jones, for the plaintiff ; and by ~Wi^ and Berrien, for the defendant. 436 1835] OF THE UNITED STATES. 668 Winn v. Patterson. Jones contended, that the circuit court erred :—1. In permitting the defendant in error to read in evidence to the jury a paper purporting to be a copy of a power of attorney from Basil Jones to Thomas Smyth, Junior, for want of sufficient legal proof of the genuineness, existence and execution of the original, or of the correctness of said paper, offered as a copy. *2. In permitting the defendant in error to read in evidence to the jury, a copy of a grant to Basil Jones, which grant, and the survey L on which it was founded, were contrary to the laws of Georgia, and therefore, null and void. 3. In refusing to instruct the jury, that the said grant and the survey on which it was founded, were contrary to the laws of Georgia, and were, therefore, null and void. To show that the writing was not admissible in evidence, until the absence of all the witnesses was accounted for, he cited, 1 Stark. Evid. 340, 342, 345 ; 5 Cranch 13 ; 18 Johns. 60 ; 2 Serg. & Rawle 44 ; 1 Overton 187 ; 1 Dall. 123 ; Peake’s Evid. 146, 152. There had been no possession to warrant the admission of the copy of the power of attorney, as an ancient deed. The rule requires thirty years’ possession under the deed. No actual possession of the land has been shown, and constructive possession will not do. No possession can be based upon a presumption. Possession or constructive possession cannot be presumed, and then from that, the execution of the deed be presumed. The actual accompanying possession is what gives credit to the presumption of the execution of a deed. Cited, 3 Johns. 295; 10 Ibid. 475; 9 Ibid. 169 ; Bull. N. P. 254. But the rule which admits ancient deeds, does not apply to a copy. Peake’s Evid. 162, 141,167. There must be* proof of the due execution of the original. 1 Stark. Evid. 154 ; 1 Johns. Cas. 402, 409. The record of the recording an instrument, is no evidence, unless the deed was recorded by due authority. 1 Atk. 264 ; 6 Binn. 274 ; 1 Marsh. 205. The deed was not recorded in the proper county, as no part of the land lay in the county where the deed was recorded. There is no law of Georgia which authorizes the recording of powers of attorney; but the courts have considered powers of attorney as standing on the same footing as deeds. The enrolment of a deed is no evidence of the contents of a deed, unless made by the authority of law. Cited, 1 Stark. Evid. 365, note ; Bull. N. P. 255; 1 Har. & Johns. 527; 1 Taylor 25 ; 2 Wash. 280; 1 Pet. 98. The evidence offered, was but a copy of a copy. As to copies *of records being evidence : cited, 1 Philips’s Evid. 291, 309, 292 ; 3 Day 399 ; Peake’s Evid. 58; 3 Dall. 65; 4 Munf. 310.’ There was no evidence whatever of the absence of the witnesses to the power of attorney. Cited, 5 Pet. 242. The grant to Basil Jones was absolutely void, having been obtained by practising a fraud on the government of Georgia. The evidence of the fraud should have been admitted. Cited, 1 Wheat. 115, 155; Indian Treaty of 1783, and Act of the legislature of Georgia of 1784 ; Act of 1780 ; Patterson v. Winn, 11 Wheat. 380. There has been a legislative construction of the treaty of 1784, showing what the boundary line was. This is referred to, for the purpose of showing that the grant was void in part,’the part of the land being within the Indian lines; and was, therefore, void altogether. To show that all grants of land within the Indian boundary were absolutely void, and that the surveys under such grants were void : cited, 437 610 SUPREME COURT [Jan’y Winn v. Patterson. Prince’s Dig. of the Laws of Georgia 268, 275, 278, 304, 363; Walker’s Dig. 363; Polk's Lessee n. Wendall, 9 Cranch 99. It is not intended to say, that the legislature could declare a patent for lands void, if granted for lands within the state, and which were subject to grants. The law declares, the patent for land so situated shall not be given in evidence. The legislature have declared all grants within the Indian boundary void. Prince’s Dig. 268, 276. Basil Jones was but a deputysurveyor, and had no authority to make the survey. The evidence shows he acted fraudulently, as he well knew the actual boundary of the Indian territory, and knowingly violated the laws of Georgia, forbidding surveys of lands not subject to grant. He acted in violation of his official oath. A deed which is void in part, is altogether void. 14 Johns. 458. This point was not decided by the court, in the case of Patterson v. Jenks ; nor was the question of the admissibility of the power of attorney decided in that case. Mr. Jones laid before the court certificates from the judges of the courts of Georgia, and opinions of the judges of those courts as to the construction n-.u.-i of the registry acts of that state ; * which certificates, he contended, J sustained the views he had presented of those laws. and Berrien, for the defendant in error, argued, that there was but one point in this case, open for argument, as all the other questions had been decided by the court in the former cases. The defendants in the court below are shown by the record to have all resided within the limits of the county of Franklin, and all the lands in controversy in this suit are within that county. The only point in the case is, therefore, that which relates to the admissibility of the power of attorney to support the deed from Basil Jones. Did the court err in allowing this evidence to go to the jury ? The rules of law on this question relate either : 1. To the proof of the execution of the original instrument. 2. To the proof necessary to dispense with the production of an original. 3. To the degree of secondary proof which is necessary, when the production of the original is dispensed with. As the evidence in this case was not the original power, the question is, whether evidence sufficient to authorize the introduction of the copy was given. It is contended, that this proof was given in the evidence of the clerk who recorded the power, and which is set forth at large in the bill of exceptions. A copy may. be verified by an officer duly authorized for that purpose, or by the oath of an individual who has compared it with the record authorized by law ; and therefore, as the evidence of a private individual, not an officer, the testimony of the person who made the copy was sufficient. It is not a copy of a copy. The witness was in possession of the original, and from that made the copy in the record, and he swears that the copy is a genuine copy of the original. The evidence is, that the copy on the record, and the copy offered in evidence, were both genuine copies of the original. The counsel then went into a particular examination of the evidence, and contended, that it fully sustained the right of the plaintiff below, on every principle of law, to give the copy of the powei’ of attorney in evidence. The strictest rules of law were complied with. 1 Stark. Evid. 341, 343. *6721 *^e handwriting of the other witness to the power of attorney could J not have been proved, as the original was lost. 438 1835] OF THE UNITED STATES. 672 Winn v. Patterson. Thirty years had elapsed since the execution of the power and of the deed made under it, and this authorizes the presumption of the due execution of the instrument. Possession must accompany the deed, but an actual pedis possessio is not required ; and this rule is not applicable to a power of attorney. In this case, the possession was in accordance with the deed, and there was no evidence given, to show that the defendants were other than mere intruders. Cited, 8 Cranch 229 ; 4 Wheat. 222 ; 5 Pet. 489. Evidence of loss of papers, and secondary proof of their contents is addressed to the court. 6 Johns. 195. In Georgia, if proof of loss of an original paper is given, by the death of the party, a copy will be admitted or proof of its contents. Cited, 5 Pet. 243 ; 2 Serg. & Rawle 44 ; 4 Bos. & Pul. 260 ; 2 Pet. 250 ; 3 Hayw. 96, 123. If the original power of attorney were before this court, the acknowledgment of it before a justice of the peace, would, by the law of Georgia of 1785, make it, per se, evidence. Stoby, Justice, delivered the opinion of the court.—This is a writ of error to the circuit court of the district of Georgia. The cause, which is an ejectment, has been twice before this court, and the decisions then had, will be found reported in 11 Wheat. 380, and 5 Pet. 233 ; to which we may, therefore, refer, as containing a statement of many of the material facts. At the new trial had in November term 1833, in pursuance of the mandate of this court, the plaintiff, to maintain the issue on his part, gave in evidence a copy of a grant from the state of Georgia to Basil Jones, for 7300 acres, including the lands in controversy, dated the 24th of May 1787, with a plat of survey thereto annexed. He then offered a copy of a power of attorney from Basil Jones to Thomas Smyth, Junior, purporting to be dated the 6th of August 1783, and to authorize Smyth, among other things, to sell and convey the tract of 7300 acres, so granted, which power purported to be signed and sealed in the *presence of “ Abram Jones, r4. : J. P., and Thomas Harwood, jr.;” and the copy was certified to be a •-true copy from the records of Richmond county, Georgia, and recorded therein, on the 11th day of July 1795. And to account for the loss of the original power of attorney, of which the copy was offered, and of the use of due diligence and search to find the same, the plaintiff read the affidavit of William Patterson, the lessor of he plaintiff, which in substance stated, that he had not in his possession, power or custody, the original grant; and that he verily believed the original power of attorney and grant have been lost or destroyed. He also read, for the same purpose, the deposition of Andrew Fleming, which stated in substance, the searches made by him among Thomas Smyth’s papers, and the information received by him, leading to the conclusion, that the same has been lost or destroyed. Also, the deposition of Mrs. Smyth, the widow of Thomas Smyth, for the same purpose. Also, the deposition of Richard H. Wilde, which stated several searches made by him for the original power, in the office of the clerk of Richmond county, and in other places, and an application to the wife of Basil Jones, and to the son of Thomas Smyth, for the like purpose ; and an advertisement in two Georgia newspapers, for information respecting the same, all of which proved ineffectual. The same witness also stated, that Abram Jones, the supposed subscribing witness, was, by public reputation, 439 673 SUPREME COURT [Jan’y Winn v. Patterson. long since dead. It was admitted, that Abram Jones was, at the time of the supposed execution of the power, a justice of the peace. The plaintiff also read in evidence the deposition of William Robertson, who stated, that he was deputy-clerk of Richmond county, in 1794, and clerk in 1795, and continued in office until 1808 or 1809 ; that he was well acquainted with Abram Jones, and his handwriting, during the years 1793, 1794 and 1795, and before and afterwards ; that the record of the power of attorney from B. Jones to Thomas Smyth, jr., made by himself, while clerk of the court, is a copy of an original power of attorney, which he believes to have been genuine, for that the official signature of Abram Jones must have induced him to commit the same to record ; and that the copy of the said power of attorney, transmitted with the deponent’s depositions (the * , coPy before the court), *had been compared with the record of J the original made by himself in Richmond county, and is a true copy. The plaintiff also gave in evidence a deed executed by Thomas Smyth, jr., as attorney in fact of Basil Jones, dated on the 18th of November 1793, conveying, as such attorney, to William Patterson, the lessor of the plaintiff, certain tracts of land, and among others, the tract of 7300 acres ; which deed contained a recital, that Basil Jones, by his certain writing or letter of attorney, dated the 6th of August 1793, did empower and authorize his said attorney in his, Basil Jones’s, name, to sell and dispose of the tracts mentioned in the deed ; which deed was recorded in the records of Franklin county, on the 25th of July 1795. Upon this evidence the plaintiff offered the copy as evidence in the cause. It was objected to by the defendants, and the objection was overruled by the court ; and the copy was admitted in evidence to the jury. And this ruling of the court constitutes the first ground in the bill of exceptions, upon which the defendants now rely for a reversal of the judgment of the circuit court, which was in favor of the plaintiff. In the consideration of the admissibility of the copy, two questions are involved.- In the first place, whether there was sufficient evidence of the genuineness and due execution of the original power of attorney. In the next place, if its genuineness and due execution are established, whether the copy was, by the principles of law, under all the circumstances, admissible proof. In regard to the first question, we are to consider, that the original instrument (supposing it to be genuine) is of an ancient dat§, having been executed in the year 1793, and recorded in the public records, as a genuine instrument, in 1795; so that at the time of the trial, it was forty years of age. Abram Jones, one of the subscribing witnesses, was long since dead; and it does not appear that Thomas Harwood, the other subscribing witness, was alive, or that the plaintiff had any means of identifying him or tracing out his residence. The original power did not exist, so that the plaintiff could not, by an inspection of his handwriting, ascertain, who he was, or where he lived. After the lapse of thirty years from the time of the execution of a *6751 dee^> the witnesses are presumed to be dead ; and this is *the common J ground, in such cases, for dispensing with the production of them, without any search for them, or proof of their death, when the original deed is before the court for proof. It is a rule adopted for common convenience, and founded upon the great difficulty of proving the due execution of a 440 1835] OF THE UNITED STATES. 6*75 Winn v. Patterson. deed, after an interval of many years. And the rule applies not only to grants of land, but to all other deeds, where the instrument comes from the custody of the proper party, claiming under it, or entitled to its custody. 1 Phillips Evid. ch. 8, § 2, p. 406, and cases there cited ; 1 Stark. Evid. part 2, 8 143-5, and cases there cited. If, therefore, the original power were now produced from the custody of the plaintiff, it would not be necessary to establish its due execution, by the production of the subscribing witnesses. It would be sufficient to establish it by other proofs. This view of the matter disposes of that part of the argument, which denies that the proof of the original instrument can be made, without the production of the subscribing witness, Harwood, or accounting for his non-production. Then, what is the proof of the genuineness and due execution of the original power of attorney? Mr. Robertson swears, that he was acquainted with the handwriting of Abram Jones (one of the subscribing witnesses), at the time of its date, as well as before, and afterwards ; that he recorded it in the county records; that the record is a copy of an original power of attorney, which he believed to have been genuine, for that the official signature of Abram Jones must have induced him to commit the same to record. Now, what is to be understood by the “ official signature ” in the language of the witness ? Clearly, his genuine handwriting, and the annexation of his official title, J. P., that is, Justice of the Peace, establishing that he verifies the instrument, not merely as an individual, but as a public officer. It is impossible, that it could be his official signature, unless it was also a genuine, and not forged, signature of his name. So that here we have from Mr. Robertson, direct proof of his belief of the genuineness of the signature of a subscribing witness, from his knowledge of his handwriting, his examination of the original instrument, and his having recorded it upon the faith of such belief. It seems to us perfectly clear, upon the received principles of the *law of evidence, that this was sufficient primd facie proof of the genuineness and due execution of the original power, to be left L to the jury, for their consideration of its weight and effect. The next question is, whether sufficient ground was laid in the evidence, to establish the loss or destruction of the original power, so as to let in secondary proof of its contents. We think there was, considering the lapse of time since the original transaction, the diligence which had been used, the searches which had been made, and the other attendant circumstances stated in the depositions, to fortify the presumption of such loss or destruction. This was the view of this point taken by this court in the former decision, in 5 Pet. 233, 242, though it was not then so directly before us ; and having heard the new argument addressed to us on the present occasion, we see no reason for departing from our former opinion. The remaining question, then, is, whether the copy now produced was proper secondary proof, entitled by law to be admitted in evidence. The argument is, that it is a copy of a copy, and so not admissible ; and that the original record might have been produced in evidence. By the laws of Georgia (act of 1785), deeds of bargain and sale of lands are required to be recorded in the county where the lands lie. (Prince’s Dig. 112.) Powers of attorney to convey lands, are not required by law to be recorded in the same county, though there seems to be a common practice so to do. The act of 1785 provides, that all bonds, specialties, letters of attorney, and 441 676 SUPREME COURT [Jan’y Winn v. Patterson. powers in writing, the execution whereof shall be proved by one or more of the witnesses thereto, before certain magistrates of either of the United States, where the same were executed, and duly certified in the manner stated in the act, shall be sufficient evidence to the court and jury of the due execution thereof. (Prince’s Dig. 113.) The present power was not recorded in the county of Franklin, where the lands lie, but in Richmond county ; and therefore, a copy from the record is not strictly admissible in evidence, as it would have been, if powers of attorney were by law to be recorded in the county where the lands lie, and the present power had been so duly recorded. It is certainly a common practice, to produce, in the cus-*«'7'71 ^0<^y the clerk, under a subpoena *duces tecum, the original records -* of deeds, duly recorded. But in point of law, a copy from such record is admissible in evidence, upon the ground stated in Lynch v. Clark, 3 Salk. 154, that where an original document of a public nature would be evidence, if produced, an immediate sworn copy thereof is admissible in evidence ; for, as all persons have a right to the evidence, which documents of a public nature afford, they might otherwise be required to be exhibited at different places at the same time. See Mr. Leach’s note to 11 Mod. 134 ; Birt v. Barlow, 1 Doug. 171 ; 1 Stark. Evid. § 36-7. If, therefore, the record itself would be evidence of a recorded deed, a duly attested copy thereof would also be evidence. The present copy does not, however (as is admitted), fall within the reach of this rule. But the question does arise, whethei’ the defendant can insist upon the production of the record-books of the county of Richmond, in court, in this case, as higher and more authentic evidence of the power of attorney, not properly recorded there, to the exclusion of any other copy, duly established in proof. We think he cannot. It is not required by any rule of evidence with which we are acquainted. We admit, that the rule, that a copy of a copy is not admissible evidence, is correct in itself, when properly understood and limited to its true sense. The rule properly applies to cases, where the copy is taken from a copy, the original being still in existence and capable of being compared with it; for then it is a second remove from the original; or where it is a copy of a copy of a record, the record being in existence, by law deemed as high evidence as the original; for then it is also a second remove from the record. But it is quite a different question, whether it applies to cases of secondary evidence, where the original is lost, or the record of it is not in law deemed as high evidence as the original; or, where the copy of a copy is the highest proof in existence. On these points, we give no opinion, because this is not, in our judgment, the case of a mere copy of a copy, verified as such ; but it is the case of a second copy, verified as a true copy of the original. Mr. Robertson expressly asserts, that the record was a copy of the original power made by himself, and that the present copy is a true copy, which has ♦r'zr! ^een compared by himself with the *record. In effect, therefore, he J swears, that both are true copies of the original power. In point of evidence, then, the case stands precisely in the same predicament, as if the witness had made two copies, at the same time, of the original, and had then compared one of them with the original, and the other with the first copy, which he had found correct. The mode by which he had arrived at the result, that the second is a true copy of the original, may be more circuitous than that by which he has ascertained the first to be correct ; but that only 442 1835] OF THE UNITED STATES. 678 Winn v. Patterson. furnishes matter of observation as to the strength of the proof, and not as to its dignity or degree. In each case, his testimony amounts to the same result, as a matter of personal knowledge, that each is a true copy of the original. We are, therefore, of opinion, that there was no error in the court in admitting the copy in evidence, under these circumstances. In the further progress of the trial, additional evidence was offered ; and thereupon the defendants prayed the court to instruct the jury : 1. That if the jury believed, that Basil Jones, the deputy-surveyor and grantee under whom the lessor of the plaintiff claimed—by designating the stream marked on the original plat as the branch of the south fork of the Oconee, instead of the south fork of the Oconee river, and by stating that the land was situate in the county of Franklin, when a large part of it lay without the county of Franklin, and without a temporary boundary line of the state of Georgia—practised a deception upon the governor of Georgia, and thereby induced him to issue the grant, that such grant is fraudulent and void, and cannot entitle the plaintiff to recover. 2. That a grant of land is an entirety, and that a grant void in part is void for the whole. 3. That a concealment or misrepresentation of material facts, calculated to deceive the governor issuing the grant, renders the grant null and void in law. The, court refused to give either of these instructions; and the question now is. whether all or either of them ought to have been given. The first instruction is couched in language not wholly unobjectionable or free from ambiguity. It assumes certain facts to be established in the case, without referring them to the decision of the jury, and on them founds the instruction, which is certainly not a correct practice. It also uses the words *“ practised a deception,” without adding any qualifying rij5 words, whether the deception was knowingly and wilfully practised, L for the. purposes of fraud, or whether it was by mistake of law or fact, or by misplaced confidence in the representations of other persons. And it is certainly the duty of a party, asking an instruction, to use language of such a definite and legal interpretation, as may not mislead either the court or jury in regard to the precise nature of the application. But, waiving this consideration, the instruction asked makes no distinction between the case of a bond fide purchaser from such grantee, without notice ; a distinction most important in itself, and in many cases decisive in favor of the purchaser, whatever may have been the fraud of the original grantee. It is unnecessary, however, to rely on this circumstance ; for, stripping the instruction of its technical form, it comes to this, that if any part of the land included in the grant lay within the Indian boundary, and the governor was deceived as to that fact, the grant is void for the whole land; not only for that within the Indian boundary, but for all that lying within the limits of the state. This proposition is attempted to be maintained by the doctrine, that a grant void in part is void as to. the whole. And certain authorities at the common law have been cited at the bar, in support of the doctrine. We have examined those authorities, and are of opinion, that they do not apply to cases like the present. There are doubtless cases, where grants and securities, made contrary to the prohibitions of a statute, in part, are, upon the true construction of the intent of the statute, void in toto. But Lord Hobart informs us, that it is very different in cases standing, merely upon the common law. For (to use his quaint but expressive 443 679 SUPREME COURT [Jan’y Winn v. Patterson. language), “ the statute is like a tyrant; where he conies, he makes all void: but the common law is like a nursing father, and makes void only that part, where the fault is, and preserves the rest.” See also Norton v. Simmes, Hob. 14 ; JMaleverer v. Bedshaw, 1 Mod. 35 ; Collins v. Blantern, 2 Wils. 351. And therefore, at the common law, in order to make a grant void in toto, for fraud or covin, the fraud or covin must infect the whole transaction, or be so mixed up in it as not to be capable of a distinct and separate *rro1 consideration. *The case of Hyslop n. Clarke, 14 Johns. 458, was a J case of fraud, where both the grantors and grantees and assignees were privy to a meditated fraud against creditors, and therefore, it was held void in toto. The case of Butler v. Dorant, 3 Taunt. 229, which is very shortly reported, seems to have proceeded upon the ground, that the statute avoided the security in toto. If it did not, it seems questionable in its doctrine. In the present case, there is no statute of Georgia, which declares all grants of land lying partly within, and partly without, the Indian boundaries, to be void in toto. And the policy of the legislature of Georgia, on this subject, is sufficiently vindicated, by holding such grants void as to the part within the Indian boundary, leaving the grant good as to the residue. This very point was, in fact, decided by this court in Patterson v. Jenks, 2 Pet. 216, 235. One question there was, whether the whole grant (a similar grant) was a nullity, because it contains some land not grantable. In answer to the question, Mr. Chief Justice Marshall, in delivering the opinion of the court, said, “ In the nature of the thing, we perceive no reason, why the grant should not be good for land which it might lawfully pass, and void as to that part of the tract, for the granting of which the office had not been opened. It is every day’s practice, to make grants for lands, which have, in fact, been granted to others. It has never been suggested, that the whole grant is void, because a part of the land was not grantable.” We are entirely satisfied with this doctrine, as equally founded in law and reason. The land in controversy in the present suit is within the acknowledged boundary of Georgia, and without the Indian boundary ; and admitting the grant to be void as to the part within the Indian boundary, it is, in oui’ judgment, valid as to the residue, notwithstanding the supposed deception stated in the instruction ; for that deception did not affect with fraud any part of the transaction, except as to the land within the Indian boundary. The instruction, therefore, was rightly refused by the court. The second instruction may be disposed of in a few words. It contains a proposition absolutely universal in its terms, that a grant of lands is an entirety, and that a grant void in part, is void for the whole. If this prop-*6811 os^^on were true, then a grant *of 10,000 acres, which was void for J any cause whatever, as a conveyance of one acre, although it might be foi* want of title in the grantor, would be void for the remaining 9999 acres. It is sufficient to say, that the instruction, so generally framed, ought not to have been given. The third instruction admits of a similar answer. It is universal in its terms; and states, “ that a concealment or misrepresentation of material facts ” (not stating whether innocently or designedly and fraudulently made), “ calculated to deceive the governor issuing the grant ” (not stating whether he actually deceived or not), “ renders the grant null and void in law,” as to all persons whatever (not stating whether the party is the orig- 444 1835] OF THE UNITED STATES. The Burdett. 681 inal grantee, or a bond fide purchaser under him, without notice). For the reasons already stated, such an instruction, so generally stated, ought not to have been given. Upon the whole, we are all of opinion, that the judgment of the circuit court ought to be affirmed, with costs. Judgment affirmed. *The Burdett. [*682 United States, Appellant, v. The Brig Burdett. Evidence.—Letters.—Declarations of agent.—Penal actions.—Pre- sumption of innocence. An information was filed in the district court of the United States, on the 1st of October 1832, against the Brig Burdett, alleging her to have been forfeited to the United States, for a violation of the registry acts, she being owned in whole or in part by a foreigner, a subject of the king of Spain. The vessel was purchased by an agent of George S. Steever, a native citizen of the United States, and was sent to the Havana; from the time of her arrival at Havana, she was placed under the direction of J. J. Carrera, a merchant of that place, and all her voyages directed by him, professing to act as the agent of Mr. Steever; part of the cost of the brig was paid in cash by Mr. Steever to his agent, on his return to the United States, and the balance charged by the agent and settled for in account with Mr. Carrera. The counsel for the United States offered in evidence certain letters written by Mr. Carrera to Captain Nabb, the master of the Burdett, during her several voyages, which had been directed by him, and which letters related to the business and employment of the Burdett; the letters were objected to as evidence, and were admitted in the district and circuit court, to which latter court the case was taken on an appeal by the claimant of the vessel: Held, that the letters were not legal evidence. The confessions of an agent are not evidence to bind his principal, nor is his subsequent account of a transaction to his principal, evidence ; but his acts, within the scope of his powers, are obligatory upon his principal, and those acts may be proved in the same manner as if done by the principal; the agent, acting within his authority, is substituted for the principal in every respect, and his statements, which form a part of the res gest&, may be proved. The object of this prosecution was to enforce a forfeiture of the vessel and all that pertains to her, for a violation of a revenue law; the prosecution was a highly penal one, and the penalty should not be inflicted, unless the infraction of the law were established beyond reasonable doubt. That frauds are often practised under the revenue law, cannot be doubted, and that individuals who practise these frauds are exceedingly ingenious in resorting to various subterfuges to avoid detection, is equally notorious; but such acts cannot alter the established rules of evidence, which have been adopted as well with reference to the protection of the innocent, as the punishment of the guilty. If a fair construction of the acts and declarations of an individual do not convict him of an offence, if the facts may be admitted as proved, and the accused be innocent, should he be held guilty of an act which subjects him to the forfeiture of his property, on a mere presumption ? He may be guilty, but he may be innocent. If the scale of evidence does not preponderate against him—if it hang upon a balance, the penalty cannot be enforced; no individual should be punished for a violation of law, which inflicts a forfeiture of property, unless the offence shall be established beyond reasonable doubt. This is a rule which . governs a jury in all criminal *prosecutions ; and the rule is no less proper for the *-government of the court, when exercising a maritime jurisdiction.1 1 If the scale of evidence hangs in doubt, the verdict should be in favor of the claimant; the jurors ought to be deafly satisfied that the allegations of the informations are true; but if they are so satisfied, they may render a ver- dict for the government, even though the uroof falls short of what is required in a criminal case prosecuted by indictment. Lilienthal’s Tobacco v. United States, 97 U. S. 272. 445 683 SUPREME COURT [Jan’y The Burdett. Apptcat, from the Circuit Court of Maryland. The case is fully stated in the opinion of the court. Butler, Attorney-General, and ’Williams, Di strict-Attorney of the United States for the district of Maryland, for the appellants ; Meredith and Kennedy, for the claimant of the brig Burdett. McLean, Justice, delivered the opinion of the court.—This case was brought into this court, by an appeal from the circuit court of Maryland. The appellants, by the attorney of the United States, filed in the district court of Maryland, an information, on the 1st of October 1832, for the purpose of enforcing a forfeiture of the brig Burdett, her tackle, apparel and furniture, to the use of the United States, on the ground, that the brig, though registered as a vessel of the United States, was then, and still is, owned, in whole or in part, by a subject of a foreign prince, viz., by a certain J. J. Carrera, or a certain J. Carrera, a subject of the king of Spain, and resident abroad ; which ownership was known to the persons owning or pretending to own the whole or a part of the brig, in violation of the act of congress, &c. The vessel having been attached, a claim was filed by George G. Steever, in which he alleged, that the brig was originally built in the state of North Carolina, and purchased by him of the original owner, in May 1831, and thereupon registered in his name, as sole owner, he being a citizen of the United States ; and denied, that the brig was, at the time she was registered, or at any time since, owned, in whole or in part, by Carrera, or by any other subject of any foreign prince or state. The claimant also averred, that at the time of obtaining her registry, the vessel was, and ever since * ha(i been, his sole property. *The vessel having been appraised at -* 86000, and security having been given by the claimant to abide by the final order of the court, she was restored to him. On the hearing of the cause, the testimony and depositions of several witnesses were introduced, and much documentary evidence offered on the part of the United States. Several letters, proved to be in the handwriting of J. J. Carrera, were offered in evidence on the part of the United States, to the reading of which the counsel for .the claimant objected, on the ground that Carrera was not a party to the case, which objection was sustained by the court. The district court dismissed the information, and that decree, on appeal, was affirmed by the circuit court. In the argument, the counsel for the appellants take two grounds, on which they contend the decree of the circuit court should be reversed. 1. That the letters of Carrera were improperly rejected. He was shown by all the witnesses to be the accredited agent of the claimant, and his letters were, moreover, a material part of the res gestae. 2. The evidence shows that the chief, if not the sole ownership of the brig, was in Carrera. Much reliance is placed on the testimony of Chester and Cox, two of the witnesses, to establish not only the agency of Carrera, but other matters material in the case. The former states, that he lived three years in the house of Joseph Carrera, preceding the last of June 1832. He was there during the whole of the operations of the Burdett, at Havana. He states, that Steever sent an order’ to Colonel Tenant, of Baltimore, to purchase for him a vessel, which was to be sent to him at Havana, and if he was absent, 446 1835] OF THE UNITED STATES. 684 The Burdett to the house of Carrera, in which the witness was a partner to a limited extent. In obedience to this order, the Burdett was sent, consigned to the house of Carrera, in the absence of Steever, who had left the Havana, a few days before the arrival of the vessel, under the command of Captain Nabb. He frequently conversed with Joseph Carrera, and his nephew, J. J. Carrera, respecting the Burdett, and never heard either of them assert any ownership or interest in the vessel. Carrera was made the ship’s husband, and had positive orders from Steever, in his absence, to do with her as *if she were his own, and to employ her on freight to the best advantage. When Steever was near enough to communicate, he L gave positive and specific orders. Witness has often seen his letters on the subject. The vessel performed several voyages under the orders of Carrera ; and after her return from New York, having been on shore once or twice, some repairs were made under the direction of . Captain Nabb, which Carrera was apprehensive might not be sanctioned by Steever. The witness thinks about $11,500, at six and eight months credit, were paid for the vessel. Richard G. Cox states, that he is a clerk of Colonel Tenant’s, and conducts all his business ; and that the Burdett was purchased by Colonel Tenant, on the order of Steever, who was then at the Havana, and the vessel was sent there, subject to this order, and in his absence, to Carrera. Before the arrival of the vessel, Steever had sailed for Boston, and when he returned, being informed of the purchase, he paid Colonel Tenant $11,000, in part of the purchase-money. The vessel, including equipments, cost about $13,000. The rest of the purchase-money was paid by the house of Joseph Carrera. The witness has had correspondence with Carrera, respecting the vessel, and has insured her by orders from Carrera, on account of Steever. He has seen the correspondence with the house of Carrera, and has never heard or seen anything which goes to show that the Carreras had any interest in the vessel, or that Steever was not the owner. William W. Russel, a merchant of the city of New York, states, that he was consignee of the brig Burdett, in December 1831, at which time Nabb was master. The vessel came from Havana and Matanzas, under orders from Joseph Carrera, with whom the witness corresponded respecting said vessel. The witness understood from the letter of the 15th of November 1831, brought by her to him, that she was owned by G. G. Steever, of Baltimore. Witness accounted with Joseph Carrera for the freight of the brig, but he has no knowledge that Carrera has any interest in her. In a letter from Joseph Carrera to Russel, the above consignee, dated the 15th of November 1831, he says, “I have requested Captain Nabb to value on your good self, on his arrival ; *and I beg leave to solicit your attention in procuring a good return freight to Havana for that vessel, >-as well as passengers, &c. And on reference to Mr. Steever’s instructions, who, I presume, will have left Baltimore for Mexico, Captain Nabb is authorized to take a voyage to Europe, &c. Of a voyage to Europe, Mr. Steever’s instructions are constructive, as regards the benefit to be derived from it. Whatever may be the destination of the Burdett from your port, I beg to request that you will advise Colonel Tenant, in thè absence of Mr. Steever, to have insurance effected on the brig.” And again, “ my control over this vessel is limited to give her employment, and to address her to my friends, 447 686 SUPREME COURT ‘ ' [Jan’y The Burdett. I wherever she may be found ; but where the owner can himself attend to her concerns, if he be so disposed, I shall feel obliged to you by tranferring her to him.” I Another letter, signed by both the Carreras, dated Havana, the 11th of January 1832, to Mr. Russel, says, “I much regret that the prospect of procuring a full freight for this vessel, for this port, was not encouraging, &c. I rely, however, on your friendly exertions to give her the best employ- I ment,” &c. And in another letter, dated the 24th of January 1832, to Mr. I Russel, it is stated, “ I have the pleasure of handing duplicates of my I respects of the 11th current, and to own receipt of your regarded favor of I the 27th and 30th ultimo, and 11th instant; this last advising, that you I intended to despatch the Burdett for this port, &c. I feel confident you have I used your utmost exertion in giving to this vessel the best employment,” I &c. And in a letter from the same person to the same, dated the 8th of I February 1832 : “ The Burdett arrived on the 30th, in eleven days’ passage. I All the accounts relating to hex- will be examined and booked in conformity. I I have not, as yet, determined on the direction to give the Burdett.” | Mr. Russel wrote to Joseph Carrera, dated New York, December 31st I 1831, “ I acknowledge the receipt of your esteemed favor of the 12th ultimo, I handed me by Captain Nabb of the Burdett, which vessel arrived on the I 12th, after having been off the coast for seven days, and suffering some I slight injury in her upper works. The extent of the damage will, I presume, I however, not amount to a claim on the underwriters ; but should it prove I * .otherwise, the necessary documents will *be forwarded to Colonel I -• Tenant, in order that he may claim them.” “ I have to return you I my thanks for the favor done me in the consignment of this vessel, which, I however, will be promptly surrendered to Mr. Steever, should he be in this I country, and be desirous of giving his personal attention to her concerns,” I &c. Another letter, dated New York, 27th December 1831, from the same I to the same, states exertions used to procure a full freight for the Burdett. I And there is contained in the record several other letters from Mr. Russel to I J. Carrera, dated at New York, in January 1832, all of which relate to the I freight of the Burdett. I Certain letters from J. J. Carrera to Captain Nabb, numbered in the I record, 1, 2, 3 and 4, were offered in evidence by the district-attorney, and I were objected to by the claimant. The letter numbered 1, is dated at Hav- I ana, November 15th, 1831, and contains particular instructions to Captain I Nabb, as to the voyage of the Burdett, the consignee in New York, and I the subsequent employment of the vessel, after the discharge of her cargo. I The letter numbered 2, and dated Havana, 26th November 1831, is of the I same import. I Letter numbered 3, is dated Havana, 12th May 1832, in which Carrera I says, “ Your letters of the 13th and 23d April last have been received, and I am sorry to hear of the damage the Burdett has experienced, in a tremen- I dous gale of wind, near the Bermudas. The certificate of survey, as well as I the estimate of repairs to be made on the Burdett, has been received ; the | amount of repairs is enormous, but we must conform to it, if there should I 1 be no other remedy. No doubt the underwriters will have to reimburse ■ £ the amount. I wrote to Colonel Tenant, a few days ago, authorizing him I to arrange the business of the Burdett as well as he can, and for the best I r 448 1835] OF THE UNITED STATES. 687 The Burdett. of my interest. I entreat you to consult him on the business, and do for the best. The expenses and repairs are heavy, and surpass my expectations. Mr. Tenant has been authorized by me to pay the amount required to fit out the vessel; but if he thinks best to sell my four hundred boxes of sugar, he is at liberty to do so, for they are insured at Baltimore.” *In letter numbered 4, and dated at Havana, 28th June 1832, Mr. Carrera says, “I am in receipt of your valued favors of the 1st, 11th L and 21st May last, by which you inform me of the last survey held on the brig Burdett, and that she was condemned, and to be sold at public auction; but, at the request of our friend, Colonel Tenant, the sale of the said vessel was postponed, and that the said Tenant had sent two gentlemen in order to have a private survey, &c. I am informed, that the Burdett’s cargo for Hamburg had been shipped on board the brig John ; this vessel having been chartered by yourself, with the approbation of Mr. Tenant, and that she was to sail, &c. By this time, I presume, you have seen Mr. Steever, and hope this friend will have succeeded in his claim against the underwriters for a partial or a total loss on said vessel. I beg of you to do all in your power, that we may be able to collect what is so justly due to the interested in that vessel.” And the district-attorney offered to read other letters from Carrera to Captain Nabb, numbered on the record 5 and 6, if the claimant would withdraw his objections to the above letters being read as evidence ; but the objections were not withdrawn, and the same was sustained by the court. The first question for the consideration of the court is, whether the above letters were properly rejected by the court below. It is objected, that these letters contain but a part of the corespondence on the same subject and that the non-production of the whole is unaccounted for. The letters referred to were addressed by Carrera to Captain Nabb, and it may be, that some of the letters’ written by him, and also by Carrera, in relation to the same matter, are not produced. As this correspondence is not in the possession of the plaintiffs, it is impossible for the district-attorney to produce it. If Carrera were to be treated as a mere agent, he might have been examined as a witness, and compelled to produce or swear to any letters in his possession, which have a bearing on the ownership of the vessel. But the forfeiture is attempted to be enforced, on the ground, that this same person is the owner of the vessel, in whole or in part. In this view, he would be required to swear in a matter *which concerns his own interest; as ri!AQQ his oath, if received, would go directly to establish or to refute the L important point of ownership of the vessel. It was for this reason, it is presumable, that Carrera was not examined as a witness. So far as the proof of acts done within the scope of his agency may be essential, it may be made by other evidence than his own oath. The proof of Carrera’s agency, in reference to the Burdett, is clear ; and to consider him in this light, is the most favorable view for the claimant which can be taken of the case. Carrera must have acted as agent, or as principal, in regard to this vessel. He planned her voyages,- gave directions as to her freight, appointed consignees, and paid for the repairs of the vessel. That he did these things, as the agent of the claimant, is the only ground on which his nght can be sustained ; for if Carrera acted in any other, capacity, it must 9 Pet.—29 449 689 SUPREME COURT [Jan’y The Burdett. be fatal to the claim, of Steever. Under the circumstances of the ease, it does not seem, that the objection, on the ground that all the correspondence was not produced, should have been sustained by the court. If the letters offered contained facts which were competent evidence in the case, the principal could not object ; because the correspondence referred to, was either in his possession, or the possession of his agent. But it is insisted, if the whole of the correspondence were produced, it would be inadmissible, because Carrera is no party in the case. The confessions of an agent are not evidence to bind his principal; nor is his subsequent account of a transaction to his principal, evidence. But his acts, within the scope of his powers, are obligatory upon his principal, and those acts may be proved in the same manner as if done by the principal. The agent, acting within his authority, is substituted for the principal in every respect; and his statements, which form a part of the res gestce, may be proved. But it is not material to decide the point raised on the objection of these letters. They may be considered as a part of the record, and as presenting all the facts which they contain, in connection with the other facts in the case, for the consideration of the court. And if on this broad view of the merits, the *prosecution shall not be sustained, it will become wholly 0 -* unnecessary to determine any question as to the admissibility of evidence. The object of the prosecution against the Burdett is to enforce a forfeiture of the vessel, and all that pertains to it, for a violation of a revenue law. This prosecution then is a highly penal one, and the penalty should not be inflicted, unless the infractions of the law shall be established beyond reasonable doubt. That frauds are frequently practised under the revenue laws, cannot be doubted ; and that individuals who practise these frauds are exceedingly ingenious in resorting to various subterfuges to avoid detection, is equally notorious. But such acts cannot alter the established rules of evidence ; which have been adopted as well with reference to the protection of the innocent, as the punishment of the guilty. A view of the evidence in this case, including the rejected letters, must create a suspicion of fraud in the mind of every one who reads it with attention. Steever went to the Havana, as supercargo of a vessel owned by Colonel Tenant. His means were limited. While at the Havana, he wrote to Colonel Tenant to purchase for him a vessel; and the Burdett was purchased, and sailed for Havana, with a letter to Steever, which, in his absence, was to be opened by Carrera ; Steever being absent, the letter was opened by Carrera ; who, from that time to the commencement of this prosecution, gave all necessary directions respecting the Burdett; with, as it would seem from the evidence, little or no interference by Steever. And in addition to this, with the exception of $1100, it appears, the Burdett was paid for by the house of Carrera. These facts, and others which are on the record, do authorize a suspicion that the vessel was purchased in the name of Steever, for the benefit of Carrera. And we think, that the proceeding instituted by the district-attorney, in this case, was justified from the facts which have been developed. But the inquiry now is, not whether the prosecution was properly instituted, but whether the evidence makes out a forfeiture, in such terms as 450 1835] OF THE UNITED STATES. 690 The Burdett. to require its enforcement by the court. Admitting the facts which have been stated, as creating suspicion, are they conclusive ? It apppears, that • the vessel was *purchased by the order of Steever, and that she was dispatched to the Havana, subject to his order. That he made the l first payment of Si 100, and that he constituted Carrera his agent, to control the vessel, in every respect, as if she were his own, in the absence of Steever. And that in many of the letters of Carrera, respecting the vessel, her destination, her freight, or her repairs, he referred to Steever, as her owner, and instructed the consignee and other agents to apply to Steever for direction, if he were in the United States. That in all these cases, Carrera professed to act in subordination to the instructions of his principal. The vessel was entered in the name of Steever, and she was insured as his property. And as to the instructions given by Carrera, and the payments of money by him, not only on the contract of purchase, but also for repairing the vessel; they are not at all inconsistent with the allegations of the claimant. If Carrera acted bond fide as the agent of Steever, he might be expected to give the instructions he did give, and, out of the profits of the vessel, make the payments which he did make. It is said, that these professions of Carrera, as to his agency, &c., were made as a cover to the transaction. This, possibly, may have been his motive ; but are not the facts consistent with an innocent motive ? And if a fair construction of the acts and declarations of an individual do not convict him of an offence—if the facts may be all admitted as proved, and the accused be innocent; should he be held guilty of an act which subjects him to the forfeiture of his property, on mere presumption. He may be guilty, but he may be innocent. If the scale of evidence does not preponderate against him—if it hang upon a balance, the penalty cannot be enforced. No individual should be punished for a violation of law which inflicts a forfeiture of property, unless the offence shall be established beyond reasonable doubt. This is the rule which governs a jury in all criminal prosecutions, and the rule is no less proper for the government of the court when exercising a maritime jurisdiction. After a full and mature examination of all the facts in this case, whilst we admit the acts of the claimant are not clear of suspicion ; we are forced to the conclusion, that the evidence does not authorize a forfeiture of the vessel. The decree of the circuit court is, therefore, affirmed. Decree affirmed. 451 *692 SUPREME COURT [Jan’y *Domingo Urtetiqui, Plaintiff in error, v. John K. D’Arcy, ELeney Didier and Domingo D’Arbel, Defendants in error. Citizenship.—Passport. The plaintiffs instituted a suit in the circuit court of the United States for the district of Maryland, stating themselves to be citizens of the state of Maryland, and that the defendant was an alien, and a subject of the king of Spain; the defendant pleaded in abatement, that one of the plaintiffs, Domingo D’Arbel, was not a citizen of Maryland, nor of any of the United States, but was an alien, and a subject of the king of Spain; upon the trial of the issue joined on this plea, the plaintiffs produced and gave in evidence, under the decision of the circuit court, a passport granted by the secretary of state of the United States, stating D’Arbel to be a citizen of the United States : Held, that the passport was not legal evidence to establish the fact of the citizenship of the person in whose favor it was given.1 The defendant in the circuit court offered in evidence the record, duly certified, of the district court of the United States for the district of Louisiana, containing the proceedings in a suit which had been originally instituted against D’Arbel, in a state court of Louisiana, and on his affidavit that he was an alien, and a subject of the king of Spain, had been removed for trial to the district court, under the authority of the act of congress authorizing such a removal of a suit against an alien into a court of the United States ; the record was introduced, as containing a copy of the affidavit of D’Arbel in the state court, upon which the case was removed: Held, that this was legal evidence. Eebob to the Circuit Court of Maryland. The defendants in error instituted an action of assumpsit in the circuit court, and in the declaration, stated themselves to be citizens of Maryland, -and that the defendant was a subject of the king of Spain. The declaration contained the common counts. The defendant below, Domingo Urtetiqui, pleaded the general issue, and also a plea in abatement, alleging that Domingo D’Arbel, one of the plaintiffs, was not, at the impetration of the writ, a citizen of the United States, or of any one of them. To this plea, there was a replication, and an issue thereon. On the trial of the cause, upon other issues joined, exceptions were ta^en to ruling of the court; but as the cause was *decided in -1 this court exclusively upon the questions raised on the plea in abatement, they are omitted in this report. The exceptions taken by the defendants in the circuit court were the following : The plaintiff in the circuit court having offered evidence to prove that Domingo D’Arbel was an inhabitant of Louisiana, before and on the 30th of April 1803, and continued to be an inhabitant thereof, until the year 1818 or 1819—further to support the issue on their part, on the plea of abatement, and to prove the citizenship of D’Arbel, offered in evidence a passport granted by John Quincy Adams, then secretary of state, on the 22d March 1824, to the said D’Arbel, as a citizen of the United States. To the admissibility of this passport, as legal or competent evidence of the American citizenship of the said D’Arbel, the defendant below objected; but the court overruled the objection, and permitted the same to be read to the jury. The defendant, to support his plea in abatement, and for the purpose of showing the admission of D’Arbel, under oath, that he was, on the 8th of May 1817, a subject of the king of Spain, offered in evidence a record of the 1 A passport, containing a statement of a per- own declarations, or those of some other person son’s age, is not evidence thereof; for, though on his behalf. Kobbe v. Price, 14 Hun 55 an official document, it is made up from his 452 1835] OF THE UNITED STATES. 60S Urtetiqui v. D’Arcy. district court of the United States, for the eastern district of Louisiana, in a cause, wherein John K. West, curator of Janies Neil, was plaintiff, and Domingo D’Arbel was defendant, which had been removed, under and by virtue of the 12th section of the act of 1789, from the district court of the state of Louisiana, for the first judicial district, upon the petition of the said D’Arbel, supported by affidavit, that he was, on the 8th of May 1817, a subject of his most catholic majesty, the king of Spain. The record offered in evidence, set out the transcript or record from the state court, certified under seal by the deputy-clerk of said court, and also the proceedings in the district court of the United States thereupon, and the said record was certified in due form, as containing “ a full, faithful and true copy of the transcript ” from the state court, “ and also of the proceedings which have taken place in said cause,” in the district court of the United States. The defendant below also proposed to give in evidence, that the D’Arbel mentioned in the record was the same D’Arbel, one of the plaintiffs in this cause. The plaintiffs objected to the evidence so offered, and the *court refused . to permit the record to be read in evidence, for the three following L reasons : 1. It is res inter alios acta. 2. The transcript from the court of the state of Louisiana is certified by Stephen Pedesclaux, deputy-clerk, without any official seal. 3. The clerk of the district court of the United States certifies, that the foregoing nine pages (meaning the record) contain a full, faithful and true copy of the transcript from the first judicial district court of the state of Louisiana, in the case wherein John K. West, curator of the estate of James Neil, is plaintiff, and Domingo D’Arbel is defendant, &c. The certificate is in effect the copy of a copy. The defendant below, to support his plea in abatement, also gave in evidence, by competent witnesses, that D’Arbel had declared himself to have been a native Frenchman, and born near the borders between France and Spain; whereupon, the plaintiffs prayed the court, that if the defendant offers no other evidence than what was then before the jury, in support of his plea in abatement, the plaintiffs were entitled to the verdict, if the jury believed the plaintiffs’ evidence ; which prayer the court granted. The defendant excepted to the decisions of the court on the evidence offered by the plaintiffs, and to the ruling of the court on the prayers of the defendant; and the court sealed a bill of exceptions. A judgment having been entered on the verdict of the jury, in favor of the plaintiff, the defendant prosecuted this writ of error. The case was argued by Kennedy and Meredith, for the plaintiff in error ; and by Johnson and Taney, for the defendants. For the plaintiff in error, it was contended, upon the first exception, that the passport granted by the secretary of state to M. D’Arbel, was not admissible evidence. Passports are not authorized by any act of congress, and even when they are used in foreign countries, they are, from the comity of nations in amity with each other, admitted as primd facie evidence of what they purport. They do no more *than request that the person to whom the passport is given, may be permitted to pass freely, and that he may have all lawful aid and protection as a citizen of the United States. It is denied, that the passport was evidence, any more than a mere certificate of a claim by D’Arbel of citizenship. It may show an application 453 695 SUPREME COURT j[Jan’y Urtetiqui v. D’Arcy. to the department of state; but the circuit court allowed it to be read as legal evidence of citizenship. It is not judicial evidence, as it was not given under any law. Protections are not per se evidence. 3 W. C. C. 529. Such a paper has never been admitted to prove the facts stated in it. Passports are issued in the department of state, on request; and not upon evidence to support the assertion of citizenship on which they are granted. But if such evidence were required and furnished, unless by some direction or authority of a statute, they would not be evidence of the fact of citizenship. It was not intended, that a passport should be judicial evidence, either here or abroad. It is a political document, addressed to foreign powers and foreign agents. Commanders of fleets and generals of armies grant them, and they pass for what they are worth. The practice of the department of state cannot change the law of evidence. Upon the second exception, it was argued, that the record of the proceedings in the case in the district court of the United States, removed from the state court by D’Arbel, was legal evidence of the declaration made on oath by him, to obtain the removal of the cause. It was introduced only to show the oath taken by D’Arbel. This was his mere declaration, and as such could be proved by the paper itself, as a declaration could be proved by a person who heard it. It is his own act, and as the record is certified according to the act of congress, the contents of it were evidence. D’Arbel had filed the proceedings in the district court, from the state court, and he was the only person who could do so ; and to obtain the consent of the court to receive them, he made the affidavit. It is not the proceedings in the state court which are evidence, but those in the United States court, whieh were there, upon the affidavit of D’Arbel, under *authority of J the act of congress ; and the proceedings of the state court became those of the district court. The removal of the proceedings in such a case to a court of the United States, from a state court, is like the removal of a case by certiorari, which takes up the whole record, and they become matter of record in the court to which they go. The term “ process,” in the act of congress, means all the proceedings. No new declaration is filed in the federal court, and the court may remand the case, if its removal has not been legal. Cited, 1 Wheat. 304, 345 ; 3 Story on the Constitution 608 ; Pet. C. C. 44; 1 Paine 410; 4 W. C. C. 286. The objection that the record was res inter alios acta, would apply to all declarations made under any circumstance. The record is not to affect the right of any one but D’Arbel, and to prove the fact of his alienage. Suppose, he had declared he was an alien, it would equally affect the rights of his copartners, and yet the right to prove such a declaration will not be denied. As to the third exception, it was argued, that it took from the jury the consideration of all the evidence in the case, and directed the jury to consider the plaintiffs’ evidence only. This was an interference with the province of the jury. Johnson and Taney, for the defendants in error, contended, on the first exception, that the passport was proper evidence. Documents of this description are made evidence, by usage. The document is respected by foreign nations ; it is granted by a high officer of the government, and it contains his official declaration of the fact stated in it, the citizenship of the 454 1835] OF THE UNITED STATES. 696 Urtetiqui v. D’Arcy. person named in it. The laws of nations recognise passports as evidence of the national character they assert. Acts of congress recognise passports. (1 U. S. Stat. 118 ; 2 Ibid. 205.) The last act imposes a penalty on consuls for granting passports to persons not entitled to them. The form, manner and evidence on which a passport shall be granted, are not regulated by any particular law, but the court will judicially take notice of the usage of the government to issue them. It is the universal usage of nations to grant them, and to respect them as protections, according to the law of nations. *Upon the second exception, the counsel contended, that the record was not evidence in the case. Whether a cause shall be L 1 removed from a state to a federal court, depends on the state court, and the record of the action of the state court, presented as it was in this case, would not be evidence. No inquiry is made in the court of the United States, as to alienage, that is made in the state court; and the affidavit is only to satisfy the state court of the fact alleged. The affidavit and the petition form no part of the record, and do not properly go up to the district court. If this position is correct, the certificate and seal of the district court of Louisiana, however regular under the act of congress, were no proof of the affidavit. If such affidavit could be evidence, it should have been proved by the seal of the state court. As to the construction of the act of 1789 ; cited, 12 Johns. 153 ; 4 Hen. & Munf. 173 ; 3 Mason 457. If an affidavit is made to a plea in abatement in the circuit court, would it be evidence in another court ? Certainly not. But when this affidavit was made, D’Arbel was in fact a citizen of the United States, by the operation of the cession of Louisiana, whatever may have been his opinion on the subject. He swore, in the affidavit, to a legal proposition, and he was in error as to his rights and relations to the United States. But if the affidavit in the record is evidence against D’Arbel, the question here is, whether it shall be admitted to affect the other plaintiffs below. It will have the effect to drive them from their action in the circuit court; and as this will be the consequence of its admission, this court will consider it to have been properly excluded in the circuit court. Thompson, Justice, delivered the opinion of the court.—This case comes up on a writ of error from the circuit court of the Maryland district. It is an action of assumpsit. The declaration contains the common money counts, and also counts for goods sold and delivered, work, labor and services, and an insimul computassent. There is an averment in the declaration, that the plaintiffs are citizens of the state of Maryland, and the defendant an alien and subject of the king of Spain. The defendant pleaded the general issue, and also a plea in abatement, alleging that Domingo D’Arbel, one of the *plaintiffs, was not, at the commencement of the suit, a citizen of the pggo United States, or any one of them ; to which there was a replication, and issue thereupon joined. And by an agreement contained in the record, all errors in pleading are waived on both sides ; and the cause comes here on five bills of exception taken at the trial; three of which relate to matters arising under the plea in abatement, and the other two upon the merits. The question arising upon the first exception, turns upon the admissibility in evidence of the passport given by the secretary of state, introduced tc prove the citizenship of Domingo D’Arbel. The record states, that the plain-455 698 SUPREME COURT [Jan’y Urtetiqui v. D’Arcy. tiffs, further to support the issue on their part, on the plea in abatement to the jurisdiction of this court filed in this cause, offered in evidence the following paper, purporting to be a passport from the secretary of state of the United States, and which was admitted to be an original paper from the department of state, signed by John Quincy Adams, then secretary of state of the United States ; and having also offered evidence, that the several indorsements on said paper, were respectively in the handwriting of the several persons signing the same ; and that the said persons were the respective officers of the government of Mexico, as they style themselves in the said indorsements, at the periods at which the same were made. It was also admitted, that at the date of the said passport, said D’Arbel was then in Mexico, and that the said passport was applied for, and obtained for him, at his instance, and by his request, by one of the co-plaintiffs, who transmitted the same to the said D’Arbel, into whose possession it came, and by whom it was used ; the only proof of said use being the said indorsements so made thereon. The passport is as follows : “United States of America. To all to whom these presents shall come, greeting. I, the undersigned, secretary of state of the United States of America, hereby request all whom it may concern, to permit safely and freely to pass, Domingo D’Arbel, a citizen of the United States, and in case of need, to give him all lawful aid and protection. Given under my hand, and the impression of the seal of the department of state, at the city of Washington, the 22d day of March 1824, in the forty-eighth year of the independence of these United States. John Quincy Adams.” *rqq1 *To admissibility of which paper in evidence, the defendant -* by his counsel, objected ; the same not being legal or competent evidence of the American citizenship of said D’Arbel. But the court were of opinion, and so decided, that the said paper was legal and competent evidence of said citizenship, and the same was admitted. There is some diversity of opinion on the bench, with respect to the admissibility in evidence of this passport, arising, in some measure, from the circumstances under which the offer was made, and its connection with other matters which had been given in evidence. Upon the general and abstract question, whether the passport, per se, was legal and competent evidence of the fact of citizenship, we are of opinion, that it was not. There is no law of the United States, in any manner regulating the issuing of passports, or directing upon what evidence it may be done, or declaring their legal effect. It is understood, as matter of practice, that some evidence of citizenship is required, by the secretary of state, before issuing a passport. This, however, is entirely discretionary with him. No inquiry is instituted by him to ascertain the fact, of citizenship, or any proceedings had, that will in any manner bear the character of a judicial inquiry. It is a document, which, from its nature and object, is addressed to foreign powers ; purporting only to be a request, that the bearer of it may pass safely and freely ; and is to be considered rather in the character of a political document, by which the bearer is recognised, in foreign.countries, as an American citizen ; and which, by usage and the law of nations, is received as evidence of the fact. But this is a very different light, from that in which it is to be viewed in a court of justice, where the inquiry is, as to the fact of citizenship. It is a mere ex parte certificate ; and if founded upon any evidence produced to the secretary of state, 466 1835] OF THE UNITED STATES. 699 Urtetiqui v. D’Arcy. establishing the fact of citizenship, that evidence, if of a character admissible in a court of justice, ought to be produced upon the trial, as highei’ and better evidence of the fact. But whether the circuit court erred in admitting the passport in evidence, under the circumstances stated in the exception, this court is divided in opinion, and the point is of course undecided. *The defendant, in order to support the issue on his part, on the p plea in abatement, for the purpose of showing the admission of the *-said D’Arbel, under oath, that he was a subject of the king of Spain, on the 8th day of May, 1817, offered in evidence a document or paper, purporting to be a record of certain proceedings in a cause in a district court of the state of Louisiana, in and for the first judicial district of that state, in which John K. West, curator of the estate of James Niel, was plaintiff, and the said Domingo D’Arbel was defendant; which proceedings contain a petition presented to the state court,‘for the purpose of removing the cause into the district court of the United States ; and in which petition it is alleged, that Domingo D’Arbel is a subject of his most catholic majesty, the king of Spain; and on this ground claimed to have his cause removed into a court of the United States, pursuant to the act of congress. To which petition is annexed the oath of the said D’Arbel, that the facts contained in the petition are true, and that he is a subject of his most catholic majesty, the king of Spain. To the admission of this evidence, the plaintiffs’ counsel objected, and the court sustained the objection. The exception embraces some matters upon which the court expressed no opinion ; and need not, therefore, be here noticed. So far as relates to the admissibility of this evidence, the objection is stated as follows : “ The plaintiffs object to the giving in evidence the record so offered, for the purpose for which it is offered by the defendant. First, because, if the jury find the facts stated in the plaintiff’s first prayer, then they are bound to find a verdict for the plaintiff, on the plea in abatement; and secondly, because, if not concluded, the said record purports only to give a copy of a copy of the petition and affidavit alleged to have been filed in the said case, in the said record mentioned, and a copy of a copy of the said case, as it purports to have been in the state court; which objection the court in part sustained, and rejected the record so offered in evidence.” In this, we think, the court erred. We do not perceive any well-founded objection, in any point of view, to the admission of this record, for the purpose for which it was offered, viz., to prove the declaration of Domingo D’Arbel, under oath, that he was a Spanish subject. It did not in any manner affect the rights of any other party to the judgment; and *was no more objectionable, than the declara-tion or confession of D’Arbel, made in any other manner, or on any L other occasion. But it did not lie in the mouth of D’Arbel to object to this evidence, as a part of the record of the district court of the United States. It was his own act, placing it on the record of that court; and that record was duly authenticated according to the act of congress. This document or record, as it is called, begins with the following caption or memorandum : “United States of America, Eastern District of Louisiana, ss. Be it remembered, that on the 24th day of May, in the year 1817, into the district court of the United States in and for the then Louisiana district, came Domingo D’Arbel, by his attorneys, and filed the following transcript or record, to witThen follow the record and proceeding in the state court, 457 701 SUPREME COURT [Jan’y Urtetiqui v. D’Arcy. containing the petition and affidavit of D’Arbel that he was a Spanish subject. Thus, it will be seen, that this record or proceeding in the state court, was introduced into the United States district court, by D’Arbel himself, as the ground upon which he claimed a right to have his cause tried in a court of the United States. It was, therefore, evidence offered by him originally in the district court of the United States, and it does not lie with him now to say, that that record was not duly authenticated, when introduced by him into the United States district court. It was not offered in evidence in the present case, as coming directly from the state court; and all objections to the authentication by the clerk of the state court, even if well founded, are misapplied. This record, as offered to the circuit court on the trial of this cause, came from the district court of the United States, and the proceedings and oath relied upon, were there introduced by D’Arbel himself. Whether the district court of the United States was bound to receive this as satisfactory evidence of the right of D’Arbel to remove the cause from the state court, is not at all material. It was received by the United States district court as sufficient, and the cause was removed and proceeded in accordingly. But there can be no doubt, that the United States court had a right to examine and decide for itself upon the grounds on which D’Arbel claimed to have his cause removed into the United States court. That court had a right to decide upon its own jurisdiction, and remand the cause, if *7021 efficient grounds *for a removal were not shown. It cannot surely ■* be in the power of the state court, to compel the United States court to assume jurisdiction.1 The third exception on the part of the defendant is to the ruling of the court upon the plaintiff’s prayer, which is as follows : The evidence having been given, as set forth in the two prior exceptions by the plaintiffs, which is to be considered as forming a part of this exception; the defendant, further to support the issue, on the plea in abatement, gave in evidence, by competent witnesses, that the said D’Arbel declared himself to have been a native Frenchman and born near the borders between France and Spain; and that the said D’Arbel, mentioned in the foregoing evidence, is the same D’Arbel, mentioned in the commission aforesaid. Thereupon, the plaintiffs prayed the court, that if the defendant offers no other evidence on the issue joined on the defendant’s plea of abatement, than there is now before the jury ; that then the plaintiffs are entitled to the verdict, if the jury believe the plaintiffs’ evidence ; which prayer was granted by the court. This prayer is rather obscurely stated, and the real point intended to be raised is not very apparent. Evidence had been given both as to the defendant and plaintiff ; and the prayer would seem to ask the court to instruct the jury, that the plaintiffs were entitled to the verdict, if the jury believed the plaintiffs’ evidence, and the court so instructed the jury. If this is the interpretation to be given to the prayer, the instruction was erroneous. The evidence given by the defendant was taken entirely from the consideration of the jury, and the verdict was made to depend upon their belief of the plaintiff’s evidence. But the decision upon this exeption is not very important, as it will not affect the result upon the present writ of error ; and it 1 But the affidavit is primd fade evidence of the jurisdictional fact of citizenship. Heath v. Austin, 12 Bl. 0. 0. 320. 458 1835] OF THE UNITED STATES. 702 Ex parte Milburn. is not likely it will arise, in the same form, on another trial: and this remark applies to the two remaining exceptions on the merits arising on the accounts offered in evidence, and the decision and instructions given by the court thereupon. Questions of law and fact, growing out of the prayers and instructions on this part of the case are so blended, and presented in such a shape, that it is extremely difficult to decide upon them; and as the cause must go back, and as these matters may not be presented on *another trial, under the same aspect, these questions may become p^03 immaterial, and we pass them by, without any decision. The judg- L ment of the circuit court is reversed, and the cause sent back, with directions to issue a venire, de novo. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel: On consideration whereof, it is adjudged and ordered by this court, that the judgment of the said circuit court in this case be and the same is hereby reversed, and that the said cause be and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo. * Ex parte George Milburn. [*704 Habeas corpus.—Criminal process. As the jurisdiction of the supreme court is appellate, it must be shown to the court, that the court has the power to award a habeas corpus, before one will be granted. George Milburn was imprisoned in the jail of the county of Washington, upon a bench-warrant, issued by the circuit court of the United States for the district of Columbia, to answer an indictment pending against him for keeping a faro bank, an offence which, by an act of congress, is punishable by imprisonment at hard labor in the penitentiary of the district. He had been arrested on a former capias, issued on the same indictment, upon which he gave a recognisance of bail, with sureties, in the sum of one hundred pounds, Maryland currency, according to the statute of Maryland, conditioned to appear in court at the return-day of the process, &c. ; he did not appear, and the recognisance was forfeited, and a scire facias was issued against him, and his sureties, returnable to December term 1833. At the same term, another writ of capias was issued against him, returnable immediately, and returned non est inventus ; at June vacation 1834, another writ of capias was issued against him, returnable to November term 1834, on which he was arrested, and from which arrest he was discharged on a habeas corpus, by the chief justice of the circuit court, on the ground, that the writ of capias improperly issued; on a return of this discharge by the marshal, a bench-warrant was issued by order of a majority of the judges of the circuit court, and on which he was in custody. He applied for a writ of habeas corpus to this court, to obtain his discharge: Held, that he was properly in custody. The rule for the habeas corpus was refused. A rule to show cause why a habeas corpus should not be awarded, to bring up the body of George Milburn, in confinement in the jail of county of Washington, in the District of Columbia, (a) The case, as stated in the opinion of the court, was as follows : (a) When the petition in this case was presented to the court, a habeas corpus was asked to be issued, and it was proposed to argue the question of the right of the petitioner to his discharge, on the return af the habeas corpus. Marshall, Ch. J., said:—As the jurisdiction of the supreme court is appellate, it must first be shown that the court has the power in this case to award a habeas corpus. A rule was granted to show cause why a habeas corpus should not be issued. 459 704 SUPREME COURT [Jan’y Ex parte Milburn. “This is an application to the court, by petition, for a writ of habeas corpus to bring up the body of George Milburn, now imprisoned in the jail Washington county, in the district of *Columbia, upon a bench-•* warrant issued against him by the circuit court of this district, to arrest him to answer to an indictment, now pending in the same court against him, for keeping a faro bank, an offence which, by the act of con-grees of the 2d of March 1831, ch. 37, is punishable by imprisonment and labor in the penitentiary of the district. The main grounds for the application (for it is not necessary to go into the minute facts) are, that the party was arrested on a former capias, issued on the same indictment, upon which he gave a recognisance of bail, with sureties, in the sum of one hundred pounds, Maryland currency ($266.67), according to the statute of Maryland, passed in October 1780, ch. 10 (which is in force in this district), conditioned to appear in court on the return-day of the process, to attend the court from day to day, and not to depart therefrom without leave of the court. At the return-day he did not appear, and the recognisance was forfeited, and a scire facias issued against him and his sureties, returnable to November 1833. At the same term, another writ of capias on the indictment, was issued against him, returnable immediate, which was returned non est inventus. Afterwards, in June 1834, in vacation, another writ of capias was issued by the district-attorney, upon the same indictment, returnable to November term 1834, upon which the party was arrested, and from which, upon a writ of habeas corpus, he was discharged by Mr. Chief Justice Cranch, of the circuit court, upon the ground, that the writ of capias improperly issued. The marshal having returned this matter specially to the circuit court, at the November term 1834, upon motion of the district-attorney, the present bench-warrant was issued, by the order of the majority of the court, and upon which the party is now in custody.” The case was argued by Brent and Jones, for the relator ; and by Key, district-attorney, contra. Brent stated, that two points presented themselves for the consideration of the court. 1st. Whether the bench-warrant, under which the relator is th confinement, is legal. 2d. Whether the case had not, previously to the *'7ncl issuing of the bench-warrant, been finally adjudged by a competent -* tribunal. The attention of the court is requested to the fact, that the process is not an alias, but appears as an original proceeding. It is in the same term with the first process ; and is entirely novel in its character, in the courts of the United States, and of England. An alias always issues after the return of the first writ, as having been inoperative. This is not sanctioned by law or practice. 4 Chitty’s Crim. Law 213-17, 224-5 ; 4 Burn’s Justice 48-9. In Dalton on the Duties of Sheriff, it is laid down, that in criminal cases, where an indictment is found, the practice is to issue a capias, then an alias and & pluries writ. If this is the law, the writ in this case was illegal; and did not authorize the marshal to take the relator; and his imprisonment is illegal. There is another objection to the issuing of the writ. When it issued, there was no such suit in court. The United States had, by theii- own act, discontinued the case. 4 Burn’s Justice 42. The principle established by 460 1835] OF THE UNITED STATES. 706 Ex parte Milburn this court, in the case Ex parte ~Watkins, 7 Pet. 568, that no one can be twice arrested for the same cause, entirely protects the defendant from imprisonment, after his discharge by Chief Justice Cranch. No other writ, not an alias, can be issued, after that discharge. 1 Tidd’s Prac. 196 ; 4 Burr. 2502 ; 3 East 309 ; 7 Pet. 568. In the case before the court, the record shows, that a capias issued on the indictment against Milburn ; that he wai taken by virtue of it, and he was thus in the custody of the law. before the circuit court. He was, afterwards, by the judgment of the chief justice of the court, the case being regularly before him, discharged. The United States had their remedy upon the recognisance given by him and his sureties ; and the case, as to all other matters, was out of court, and at an end. Under the law of Maryland, of 1780, ch. 10, when a defendant is in custody for an offence, found by an indictment, less than felony, the sheriff must take bail in less than one hundred pounds. The capias is returned with the recognisance ; and if he does not appear, the recognisance is prosecuted to judgment. Although the keeping a faro table is punishable by imprisonment *in the penitentiary, yet it is not a felony. The relator having done all the law required, on the original capias / he L could not be required to do more. After the most diligent search into precedents, and a reference by the chief justice of the circuit court to the most distinguished members of the bar of Maryland, no case has been found, where the principle has been asserted and maintained, which is claimed by the United States. If the law was otherwise, a case would have been found to maintain it. The law of Maryland requires, that the recognisance shall be sued out. It says nothing about further proceedings against the defendant, who has suffered the recognisance to be forfeited. It is different in the case of felony. Within forty-four years, not an instance has occurred in the courts of Maryland, where an alias capias has issued, in a case less than felony. All the counsel at the bar of Maryland appear to have considered, that under the act of 1780, everything that could be done, on the neglect of the person charged with a misdemeanor to attend, was to forfeit the recognisance, and sue it out. The opinion of Chief Justice Cranch, who has been familiar with the law and practice of Maryland for forty years, and who is the chief justice of the circuit court, delivered in this case, is referred to, and it will be found to sustain these positions. The last reason why relief should be given to the relator is, that the discharge by Judge Cranoh, the chief justice of the circuit court, during vacation, is a res judicata, between the United States and the prisoner. Under the act of congress organizing the courts of the district of Columbia, the chief justice, in vacation, acts as, and has all the powers of, a circuit court. The act of congress gives him the power to award a habeas corpus/ and his discharge of a prisoner brought before him, is a bar to another arrest, in the same manner as if it had been given by the circuit court, during its session. • Key, for the United States.—It is not, by the practice of the courts of Maryland, required, that a capias, returned “ non est,” shall be followed by an alias capias. It is the course of proceeding, to adopt any practice to bring in a defendant. Original writs of capias are issued, after others have 461 *708 SUPREME COURT [Jan’y Ex parte Milburn. not *produced an arrest. There is no necessity for any other form of proceeding, as, under the law of Maryland, there is no such thing as outlawry. Story, Justice, stated, that, as he understood the counsel for the relator, it is contended, that wherever there has been an arrest for a misdemeanor, and a recognisance entered into by the person charged, and the party has forfeited it, he can never be again prosecuted for the offence. Thompson, Justice.—Is it possible, that the law of Maryland considers, that where there has been a forfeiture of a recognisance, in a case less than felony, it is in the nature of a penalty paid for the offence ? Key.—This is the doctrine claimed by the relator. Brent, read the act of assembly of Maryland, before cited. Jones, for the relator.—The court is referred to the opinion delivered by Chief Justice Cranch, .for the local laws of Maryland (4 Cr. C. C, 552); under which proceedings on criminal cases are conducted in the county of Washington. In that opinion, the court will also find a statement of the practice in such cases. They are as claimed by the relator. This case rests on the highest principles known in the administration of justice, that no one is to be twice punished for the same offence. In England, when there is a second arrest, the recognisance is always released. No case has been found, except where there has been an escape, where, if a bail-bond, or a recognisance, has been given, you may take again. The exception, in the case of escape, shows that, in general, there is no such right. The arrest in this case is not only irregular, but it is a contempt of the law. The party who has been twice arrested, was in actual custody, at the time of the second arrest. He was under bail, and bail, by the authorities, is nothing more than “ a living prison,” in which the party is kept; there is, * therefore, no reason why an authority should be produced, to show -* the present imprisonment illegal, the defendant being in the custody of his bail, under the first recognisance, although it has been forfeited. The first recognisance should be remitted, or he will be twice punished. What is the difference between a civil and a criminal action, when the defendant has been admitted to bail ? A civil suit for the same cause of action, cannot be instituted, after bail given, unless after discontinuance of the prior suit, and a discharge of the bail. This action on the bail-bond, must be against all the parties who have become bail, unless under special circumstances. Saunders on Pleading, 187 ; 13 Johns. 424. In Virginia, the practice is different, by a special statute ; but according to the common law, the default of appearance is an insuperable bar to another action on the original case. If there is no statutory provision to the contrary, the operation of bail, in both cases, will be the same. When you admit to bail, eo nomine, you admit all the consequences of bail. 2 Chit. 109 ; Highinore on Bail 200. A scire facias issues alike in criminal as in civil cases. The legislature of Maryland, in fixing the amount of bail to be taken, after arrest for a misdemeanor, have taken an average of the sums to be required in all such cases. They have considered the justice of the state as satisfied by the amount so fixed. Im England, there is a wider 462 1835] OF THE UNITED STATES. 709 Ex parte Milburn. discretion ; but in Maryland, it may be less, but cannot be greater than one hundred pounds. This court, in a review of all the authorities cited, will be satisfied, that wherever there has been a suit on a forfeited recognisance, a second arrest cannot take place, without a discontinuance of the suit. This has not been done in the case now before the court. The contrary practice comes within the rule, that no one shall be twice punished for the same criminal action. Story, Justice, after stating the facts of the case, delivered the opinion of the court.—The points principally relied on at the argument are, in the first place, that the party is not liable to be arrested to answer the indictment, after having given a recognisance of bail; *although the recog-nisance has been forfeited, and the party has not appeared and L answered, and been tried on the indictment; in the next place, that the discharge upon the habeas corpus before Mr. Chief Justice Ceanch, is a bar to any subsequent arrest. We are of opinion, that neither of these grounds can, in point of law, be maintained. A recognisance of bail, in a criminal case, is taken to secure the due attendance of the party accused, to answer the indictment, and to submit to a trial, and the judgment of the court thereon. It is not designed as a satisfaction for the offence, when it is forfeited and paid ; but as a means of compelling the party to submit to the trial and punishment which the law ordains for his offence. And & fortiori, it cannot be deemed to apply to a case like the present, of a penitentiary offence; for that would be to suppose, that the law allowed the party to purge away the offence, and the corporeal punishment, by a pecuniary compensation. There is nothing, in our opinion, in the Maryland statute of 1780, ch. 10, to change this construction of the law. The other ground is also unmaintainable. A discharge of a party, under a writ of habeas corpus, from the process under which he is imprisoned, discharges him from any further confinement under the process; but not under any other process, which may be issued against him, under the same indictment. For these reasons, we are of opinion, that the party is rightfully in custody under the bench-warrant of the circuit court; and therefore, that the petition for the writ of habeas corpus ought to be denied. The rule, therefore, to show cause is discharged; and the motion for the habeas corpus is overruled. Writ refused. 463 *711 SUPREME COURT [Jan’y * Colin Mitchel, Robert Mitchel, in his own right, and as Assignee of the estate and effects of the mercantile house heretofore trading under the firm of Carnochan & Mitchel, and as Trustee of the creditors of said firm, and also of Richard Carnochan, William Calder, Benjamin Marshall, Benjamin W. Rogers, John P. Williamson, the heirs and legal representatives of John McNish, deceased, and James Innerarity, Appellants, v. United States. Florida land-claims.—Spanish treaty.—Indian lands. A claim to lands in East Florida, the title to which was derived from grants by the Creek and Seminole Indians, ratified by the local authorities of Spain, before the cession of Florida by Spain to the United States, confirmed. It was objected to the title claimed in this case, which had been presented to the superior court of Middle Florida, under the provisions of the acts of congress for the settlement of land-claims in Florida, that the grantees did not acquire, under the Indian grants, a legal title to the land: Held, that the acts of congress submit these claims to the adjudication of this court as a court of equity; and those acts, as often and uniformly construed in its repeated decisions, confer the same jurisdiction over imperfect, inchoate and inceptive titles, as legal and perfect ones, and require the court to decide, by the same rules, on all claims submitted to it, whether legal or equitable. By the law of nations, the inhabitants, citizens or subjects of a conquered or ceded country, territory or province, retain all the rights of property which have not been taken from them by the orders of the conqueror ; and this is the rule by which we must test its efficacy, according to the act of congress, which we must consider as of binding authority. A treaty of cession, in a deed or grant by one sovereign to another, transfers nothing in which he had no right of property; but only such right as be owned, and could convey to the grantee. By the treaty with Spain, the United States acquired no lands in Florida, to which any person had lawfully obtained such a right, by a perfect or inchoate title, that this court could consider it as property, under the second article, or which had, according to the stipulations of the eighth article of the treaty, been granted by the lawful authorities of the king; which words, “ grants ” br “ concessions,” were to be construed in their broadest sense, so as to comprehend all lawful acts which operated to transfer a right of property, perfect or imperfect. The effect of the clauses or the confirmation of grants made was, that they confirmed them presently, on the ratification of the treaty, to those in possession of the lands ; which was declared to be that legal seisin and possession, which follows title, is co-extensive with the right, and continues till it is ousted by an actual adverse possession, as contradistinguished from residence and occupation. „t *The United States, by accepting the cession, under the terms of the eighth article, and ■* the ratification by the king, with an exception of the three annulled grants to Alagon, Punon Rostro and Vargas, can make no other exceptions of grants made by the lawful authorities of the king. The meaning of the words, “ lawful authorities,” in the eighth article, or “ competent authorities,” in the ratification, must be taken to be “ by those persons who exercised the granting power, by the authority of the crown.” The eighth article expressly recognises the existence of these lawful authorities in the ceded territories, designating the governor or intendant, as the case might be, as invested with such authority ; which is to be deemed competent, till the contrary is made to appear. By “ the laws of Spain,” is to be understood the will of the king, expressed in his orders, or by his authority, evidenced by the acts themselves; or by such usage and customs in the provinces, as may be presumed to have emanated from the king, or to have been sanctioned by him, as existing authorized local laws. In addition to the established principles heretofore laid down by this court, as the legal effect of an usage or custom, there is one which is peculiarly appropriate to this case. The act of congress giving jurisdiction to this court to adjudicate on these causes, contains this clause in reference to grants, &c., “which was protected and secured by the treaty, and which might have been perfected into a complete title, under and in confirmity to the laws, usages and customs of the government under which the same originated.” This is an express recognition of any 464 1835] OF THE UNITED STATES. 712 Mitchel v. United States. known and established usage or custom in the Spanish provinces, in relation to the grants ot land, and the title thereto, which brings them within a well-established rule of law—that a custom or usage, saved and preserved by a statute, has the force of an express statute, and shall control all affirmative statutes in opposition, though it must yield to the authority of negative ones, which forbid an act authorized by a custom or usage thus saved and protected ; and this is the rule by which its efficacy must be tested, according to the act of congress, which must be considered of binding authority. In the case of the United States v. Arredondo, 6 Pet. 691, the lands granted had been in the possession and occupation of the Alachua Indians, and the centre of the tract was an Indian town of that name; but the land had been abandoned, and before any grant was made by the intendant, a report was made by the attorney and surveyor-general, on a reference to them, finding the fact of abandonment; on which, it was decreed, that the land had reverted to and become annexed to the royal domain. By the common law, the king has no right of entry on land, which is not common to his subjects ; the king is put to his inquest of office, or information of intrusion, in all cases where a subject is put to his action; their right is the same, though the king has more convenient remedies in enforcing his. If the king has no original right of possession to lands, he cannot acquire it, without office found, so as to annex it to his domain. The United States- have acted on the same principle, in the various laws which congress have passed in relation to private claims to lands in the Floridas; they have not undertaken to decide for themselves on the validity of such claims, without the previous action of some tribunal, special or judicial; they have not authorized an entry to be made on the possession of any person in possession, by color of a Spanish grantor title, nor the *sale of any *713 lands, as part of the national domain, with any intention to impair private rights. L The laws which give jurisdiction to the district courts of the territories to decide in the first instance, and to this, on appeal, prescribe the mode by which lands which have been possessed or claimed to have been granted pursuant to the laws of Spain, shall become a part of the national domain; which, as declared in the seventh action of the act of 1824, is a “ final decision against any claimant, pursuant to any of the provisions of the law.” One uniform rule seems to have prevailed in the British provinces in America, by which Indian lands were held and sold, from their first settlement, as appears by their laws—that friendly Indians were protected in the possession of the lands they occupied, and were considered as owning them by a perpetual right of possession in the tribe or nation inhabiting them, as their common property, from generation to generation, not as the right of the individuals located on particular spots. Subject to this right of possession, the ultimate fee was in the crown and its grantees; which could be granted by the crown or colonial legislatures, while the lands remained in possession of the Indians; though possession could not be taken, without their consent. Individuals could not purchase Indian lands, without permission or license from the crown, colonial governors, or according to the rules prescribed by colonial laws ; but such purchases were valid, with such license, or in conformity with the local laws; and by this union of the perpetual right of occupancy witti the ultimate fee, which passed from the crown by the license, the title of the purchaser became complete. Indian possession or occupation was considered with reference to their habits and modes of life; their hunting-grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its exclusive enjoyment in their own way and for their own purposes, were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals. In either case, their rights became extinct, the lands could be granted disineumbered of the right of occupancy, or enjoyed in full dominion by the purchasers from the Indians. Such was the tenure of Indian lands, by the laws of Massachusetts, Connecticut, Rhode Island, New Hampshire, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia. Grants made by the Indians, at public councils, since the treaty at Fort Stanwix, have been made directly to the purchasers, or to the state in which the land lies, in trust for them, or with directions to convey to them ; of which there are many instances of large tracts so sold and held, especially in New York. It was a universal rule, that purchases made at Indian treaties, in the presence and with the approbation of the officer under whose direction they were held, by the authority of the crown, gave a valid title to the lands ; it prevailed under the laws of the states, after the revolution, and yet continues in those wheie the right to the ultimate fee is owned by the states or their 9 Pet.—30 465 713 SUPREME COURT [Jan’y Mitchel v. United States. - grantees. It has been adopted by the United States, and purchases made at treaties held by their authority have been always held good, by the ratification of the treaty, without any patent to the purchasers from the United States. This rule in the colonies was founded on a settled _ rule of the law of England, that by his prerogative the king was the universal occu- J pant of *all vacant lands in his dominions, and had the right to grant them at the pleasure, or by his authorized officers. When the United States acquired and took possession of the Floridas, the treaties which had been made with the Indian tribes, before the acquisition of the territory by Spain and Great Britain, remained in force over all the ceded territory as the laws which regulated the relations with all the Indians who were parties to them, and were binding on the United States, by the obligation they had assumed by the Louisiana treaty, as a supreme law of the land, which was inviolable by the power of congress. They were also binding as the fundamental law of Indian rights, acknowledged by royal orders, and municipal regulations of the province, as the laws and ordinances of Spain in the ceded provinces, which were declared to continue in force, by the proclamation of the governor in taking possession of the provinces ; and by the acts of congress, which assured all the inhabitants of protection in their property. It would be an unwarranted construction of these treaties, laws, ordinances and municipal regulations, to decide, that the Indians were not to be maintained in the enjoyment of all the rights which they could have enjoyed under either, had the provinces remained under the dominion of Spain; it would be rather a perversion of their spirit, meaning and terms, contrary to the injunction qf the law under which the court acts, which makes the stipulations of any treaty, the laws and ordinances of Spain, and these acts of congress, so far as either apply to this case, the standard rules for its decision. The treaties with Spain and England, before the acquisition of Florida by the United States, which guarantied to the Seminole Indians their lands, according to the right of property with which they possessed them, were adopted. by the United States; who thus became the protectors of all the rights they had previously enjoyed, or could of right enjoy under Great Britain or Spain, as individuals or nations, by any treaty, to which the United States thus became parties, in 1803. The Indian right to the lands as property was not merely of possession, that of alienation was concomitant; both were equally secured, protected and guarantied by Great Britain and Spain, subject only to ratification and confirmation, by the license, charter or deed from the governor, representing the king. Such purchases enabled the Indians to pay their debts, and compensate for their depredations on the traders resident among them to provide for their wants; while they were available to the purchasers, as payment of the considerations which at their expense had been received by the Indians. It would have been a violation of the faith of the government to both, to encourage traders to settle in the province, to put themselves and property in the power of the Indians, to suffer the latter to contract debts, and when willing to pay them by the only means in their power, a cession of their lands, withhold an assent to the purchase, which, by their laws or municipal regulations, was necessary to vest a title. Such a course was never adopted by Great Britain in any of her colonies, nor by Spain in Louisiana or Florida. ♦ The laws made it necessary, when the Indians sold their lands, to have the deeds presented to the governor for confirmation. The sales by the Indians transferred the kind of right which they possessed; the ratification of the sale by the governor must be regarded as a relinquishment of *7151 crown> to the purchaser, and no instance fe known, where permission to sell has been “ refused, or the rejection of an Indian sale.” In the present case, the Indian sale has heen confirmed, with more than usual solemnity and publicity ; it has been done at a public council and convention of the Indians, conformable to treaties, to which the king was a party, and which the United States adopted; and the grant was known to both parties to the treaty of cession. The United States were not deceived by the purchase, which they knew was subject to the claim of the petitioner, or those from whom he purchased; and they made no stipulation which should put it to a severer test than any other; and it was made to a house which, in consideration of its great and continued services to the king and his predecessor, had deservedly given them high claims as well on his justice as his faith. But if there could be a doubt, that the evidence in the record did not establish the fact of a royal license or assent to this purchase, as a matter of specific and judicial belief, it would be presumed as a matter of law, arising from the facts and circumstances of the case, which are admitted or unquestioned. As heretofore decided by this court, the law presumes the existence, in the provinces, of an 466 1835] OF THE UNITED STATES. 715 Mitchel v. United States. officer authorized to make valid grants ; a fortiori to give license to purchase and to confirm; and the treaty designates the governor of West Florida as the proper officer to make grants of Indian lands by confirmation, as plainly as it does the governor of East Florida to make original grants, or the intendant of West Florida to grant royal lands. A direct grant from the crown of lands in a royal haven, may be presumed on an uninterrupted possession of sixty years ; or a prospective possession of crown lands for forty years. The length of time which brings a given case within the legal presumption of a grant, charter or license, to validate a right long enjoyed, is not definite, depending on its peculiar circumstances. After the case had been fully heard in the superior court of Middle Florida, the judge of that court, in examining the evidence in the case, with a view to its decision, considered that he had discovered in the date of the water-mark in the paper on which one of the original Spanish documents had been written, a circumstance which brought into doubt the genuineness of the instrument; no objection of this kind had been made, during the argument of the cause; and after the supposed discovery, no opportunity was permitted, by the court of Florida, to the claimants, to explain or account for the same; after the appeal had been docketed in this court, the appellants asked permission to send a commission to procure testimony, which it was alleged, would fully explain the circumstance, and offered to read ex parte depositions to the same purpose. This is refused, because, in an appellate court, no new evidence can be taken or received, without violating the best established rules of evidence. Under such circumstances, it would be dealing to the petitioner a measure of justice incompatible with every principle of equity, to visit upon his title an objection which the claimant was not bound to anticipate in the court below,- which he could not meet there, and which this court were compelled to refuse him the means of removing by evidence. We will not say, what course would have been taken, if his title had depended on the date of the paper alluded to ; aS the case is, it is only one of numerous undisputed documents, *tending to establish the grant, the validity of which is but little, if it could be in any degree, affected by the date of the permission. L Appeal from the Superior Court of Middle Florida. The appellants, on the 18th day of October 1828, presented to the superior court of Middle Florida, their petition, under the authority of the sixth section of the act of congress passed on the 23d of May 1828, entitled an act supplementary to the several acts providing for the settlement and confirmation of the private land-claims in the territory of Florida ; and of the act of 1824, referred to in the said act, authorizing claimants in Missouri to institute proceedings to try the validity of their titles. The appellants claimed title to a tract of land, containing 1,200,000 acres, in the territory of Florida ; the greater part of which was situated between the rivers Appalachicola and the St. Mark’s, comprehending all the intervening sea-coast, and the islands adjacent. The title was asserted to be held under deeds from the Creek and Seminole Indians, to Panton, Leslie & Company, to John Forbes & Company, and to John Forbes, and confirmed by the authorities of Spain. These lands, the petitioners alleged, were granted by the Indian tribes, as an indemnity from the Spanish government and from those Indians, for losses sustained by them in prosecuting a trade with the Indians, under the special and exclusive license of Spain. The Indian grants were dated on the 25th May, and the 22d August 1804, and the 2d August 1806, and were alleged to have been confirmed by Governor Folch, the governor of the province. The facts of the case, and all the documents on which the title of the petitioners was claimed to rest, with the evidence in the case, are fully stated in the opinion of the court. The answer of the district-attorney stated, that the commissioners under the act “ for the settlement of private land-claims, and for the confirmation thereof,” were instructed to report, and not to decide upon large claims ; 467 716 • SUPREME COURT [Jan’y Mitchel v. United States. that the claim of the petitioners was reported upon by the commissioners, and *their report laid before congress—but it was denied, that the documents presented to the said commissioners and by them reported were, by the said report, “ admitted to be genuine.” The title of the appellant is invalid. Congress did not confirm or adopt the report of the commissioners upon this claim, but referred all claims, not annulled by the treaty of cession, nor by the decree of the king of Spain ratifying the same, nor reported by the commissioners as ante-dated or forged, to the decision of the judiciary. The cause was heard in the superior court of Middle Florida, on the evidence adduced by the petitioners and the United States, and on public documents, all of which were sent up with the record ; and was finally disposed of by a decree of the judge of that court, entered on the 2d of November, 1830, dismissing the petition. The petitioners appealed to this court. The appeal was entered to January term 1831. At the former terms of this court, on the motions of the counsel for the United States, the case was postponed to enable the government of the United States to procure papers from Madrid and from Havana, which were considered important and necessary in the cause. These motions were always resisted by the counsel for the appellants. At January term 1834, the case was continued, under an order of the court, that it should not be argued before the 2d of February 1835. On the 9th of January, Mr. Butler, Attorney-General of the United States, moved the court to postpone the hearing of the case, until later in the term than the day fixed for the same; alleging that the documents which had been expected from Havana, had not arrived and that the government had dispatched a special messenger for them, whose return was expected before the 25th Of February, during the term. The court refused to hear the motion, until the case should be called, on or after the 2d of February. Afterwards, on the 9th of February, the motion was renewed on the part of the United States, by the Attorney-General, and was overruled ; the court not thinking it necessary to hear the counsel for the appellants against it. * .. *The cause then came on, and was argued by and Berrien J for the appellants; and by the Attorney- General and Call, for the United States. For the appellants, the following points were submitted to the court: 1. That the Indian sales of 1804 and 1811, and the several acts in confirmation thereof, by the governor of West Florida, vest in the grantees a full and complete title to the land in controversy. 2. That the king of Spain was bound, in good faith, to indemnify the house of Forbes & Co., for the losses sustained by them in their traffic with the Indian tribes ; that the satisfaction of the claims of that house, which was effected by these sales, and the consequent release of the obligation of the king of Spain to indemnify them, constituted a sufficient consideration to the Spanish crown for any right of pre-emption or otherwise which it might have had in these lands. 3. That these sales, having been made with the knowledge, assent and previous approbation of the authorities of Louisiana and West Florida ; having been subsequently ratified and confirmed by the civil and military governor of the latter province ; having been notified to the captain-general of Cuba, and by him to the king, and not having been disapproved by either ; that 468 1835]' OF THE UNITED STATES. 718 Mitchel v. United States. these several acts and omissions amount to an acquiescence on the part of the king of Spain and his legitimate authorities ; which, according to the laws and usages of that kingdom, would vest a valid title in the grantees. 4. That the decision of the captain-general of Cuba, on the petition of John Forbes, setting forth his title to these lands, and praying leave to sell the same, was a judicial decision upon the validity of that title, by the highest legitimate authority of that captain-generalcy, to which West Florida was an appendage; and cannot be drawn into question in any other tribunal. 5. That the grantees, and those claiming under them, have had legal possession, in good faith, by just title, since the date of the respective grants, which constitute a title by prescription, under the laws of Spain. 6. That the title thus subsisting in the grantees, by the aforesaid sales and acts of confirmation, by the acquiescence, *after notice, of the king of Spain q and his legitimate authorities, by the judicial decision of the captain- L general of Cuba, and by the right of prescription, at the date of the delivery of the Floridas to the .United States ; was a valid and legal title, which was recognised and confirmed by the treaty of cession. For the United States, it was contended, by Butler and Call: — I. Admitting it to be true? for the sake of argument: 1. That the house of Forbes & Co. had rendered important services to the Spanish government, and had well-founded claims on its bounty ; 2. That the king of Spain was bound, in good faith, to indemnify the house for the losses sustained by them in their traffic with the Indians ; 3. That the government of the United States had knowledge of the existence of that house, of its claims on Spain, and of the title on which the present suit is founded ; 4. That the vacant and ungranted lands in the Floridas, even if the present claim be confirmed, will yet be more than the government of the United States, at the time of the cession, expected to receive ; and 5. That other equitable circumstances exist, which entitle the claim to a favorable regard : Still, it is contended, on the part of the United States, that no valid reason can be found, in either or all of these circumstances, for reversing the decree of the court below. That decree must be affirmed, unless it can be shown, that the claimants, at the time of the cession, had a legal right to the lands in question; acquired either: 1. By virtue of a grant or concession, made before the 24th of January 1818, by his catholic majesty, or by his lawful authorities ; or, 2. By virtue of some other valid title, known to, and recognised by, the laws of Florida. II. The most important of the suggestions above referred to, viz., the alleged liability of the king of Spain to indemnify Forbes & Co. for their losses, &c., is not correct in point of fact. Neither the law of nations, nor any special promise, nor any existing treaty, imposed on him any such obligation. *Besides, if such obligation existed, the duty of auditing r#^2o and settling the accounts belonged alone to the intendancy of the province ; and the Spanish government could not be bound for the payment of any particular demand, on the mere admission of the Indians. IH. The claim, in the present case, though of land within the territorial limits of the Floridas, does not profess to be founded on any original substantive grant, made by the king of Spain or his officers; but on cessions 469 720 SUPREME COURT [Jan’y Mitchel v. United States. made by Indian tribes, and on alleged ratifications and confirmations thereof, and acquiescence therein, by the Spanish authorities. In this respect, the present case differs from all the cases hitherto submitted to this court. IV. The Indian deeds to Panton, Leslie & Co. did not, either in themselves, or with the confirmation thereof by Governor Folch, convey to the grantees therein named, any legal right to the lands in question. 1. According to the laws of Spain, in force in the Floridas, the absolute title in the soil, in all the lands described in the deeds, was, at the execution thereof, exclusively vested in the crown of Spain. The Indians, by those laws, were regarded as having no title whatever, except in and to such tracts as were left in their possession by the Spanish authorities, in conformity to the laws of the Indies ; and no part of the premises in question were so allotted. 2. If the title of the Spanish crown was qualified, in respect to lands in the Floridas, by any Indian right of occupancy, that right existed only in favor of such Indian tribes, if any, as actually inhabited the lands, and as had not previously surrendered it; and the Spanish crown possessed the absolute and exclusive right to extinguish it. 3. The lands in question were, in fact, at the time of the cessions, vacant and uninhabited, and therefore, no Indian right of occupancy could exist therein. 4. The original Indian right of occupancy, if any ever existed, from the shores of the Gulf, as far as the flowing of the tide up the bays, rivers and inlets, in the premises in question, was extinguished by solemn compact between the government of Great Britain and the Indians, in the year 1765 ; and by the treaty of 1783, Spain *^211 succeeded to all the rights of soil and *sovereignty, previously pos- J sessed by the British crown. As to the greater part of the lands described in them, the Indian deeds were, therefore, invalid. 5. The deeds were executed by Indians, residing, with a trivial exception, within the territorial limits of the United States. The cessions were not the act of the Seminole nation, every town and village of which was interested in the Indian right of possession. 6. The Indians could not sell to the subjects of Great Britain and within the jurisdiction of Spain, on which was erected the fortress of St. Mark’s, then occupied and garrisoned by the troops of Spain, and since ceded and delivered by the Spanish government to the United States. 7. William Panton and John Leslie, of the house of Panton, Leslie & Co., were both dead, and no such firm existed in Florida, as that of Panton, Leslie & Co., at the time of executing the several deeds, and at the time of their confirmation by Governor Folch. 8. Panton, Leslie & Co. were foreigners ; they had not taken the oath of allegiance to the crown of Spain, without which they could receive no grant of land in Florida, from the subordinate officers of the government. 9. There is no proof that the governors-general of Louisiana authorized or approved the purchases in question. 10. The original acts of confirmation of the Indian sales, by Governor Folch, to the house of Panton, Leslie & Co., and to the house of John Forbes & Co., have not been produced by the petitioners, nor their absence satisfactorily accounted for. There is no evidence, then, that any formal titles were given by Governor Folch, to the grantees, for the land in question. 11. Governor Folch had no power to ratify and confirm the Indian cessions in question : (1.) Because the power to ratify such cessions was not within the scope of his general authority ; nor had he any special 470 183Ô] OF THE UNITED STATES, 721 Mitchel v. United States. authority to ratify the same. (2.) Because the lands, with a small exception, were situated within the province of East Florida, and out of his jurisdiction. (3.) Because the royal order of 1798 vested in the intendants the exclusive power of granting and conceding all kinds *of land ; r*y22 and at the date of the supposed grants, Juan Ventura Morales was L intendant of West Florida. V. If the titles executed by Governor Folch could be considered as original substantive grants (which is by no means admitted), they would still be invalid, by reason of their repugnancy to the laws, ordinances, usages and regulations of the Spanish government. As to the lands in East Florida, they must certainly be invalid. VI. The facts and circumstances attending this case, and relied on by the appellants, do not amount to any such acquiescence on the paint of the king of Spain, and his lawful authorities, as would, according to the laws and usages of that kingdom, vest a valid title in the grantees. And all presumption of such acquiescence is conclusively rebutted, by the subsequent grants actually made by the king himself. VII. No title by prescription exists in this case. VIII. The permission granted by the captain-general of the island of Cuba, to the house of John Forbes & Co., to sell the lands in controversy to Colin Mitchell, related only to the lands described in the cession of 1804, and was not a judicial decision on the* validity of the title. It created no estate, either in the grantees, or those claiming under them. IX. The captain-general of the island of Cuba had no jurisdiction over the lands in Florida. The royal domain of Florida was under the exclusive control and superintendence of the intendancy. X. The various circumstances and arguments relied on by the appellants, being, for the reasons above stated, each of them insufficient, in itself, to sustain the present claim, they must, from the peculiar nature of this case, be equally insufficient, in the aggregate. XT. The United States have a clear title to the fortress of St. Mark’s and its appurtenances, which, even if the claim be allowed in other respects, must be excepted by definite bounds therefrom ; and should have been so excepted in the petition. On the 14th of March, the case having been argued, and the opinion of the court being about to be delivered by Mr. Justice Baldwin ; Butler and Call) for the United States, moved to postpone the final disposition of the case until next term. *The Attorney-General stated, that the messenger who had been dispatched to Havana, had, on the day preceding, returned to the city L of Washington, and had brought with him documents of great importance to the just decision of the case ; and that information had been received by the department of state, that other documents, showing the action of the government of Spain in relation to titles to lands in Florida, were preparing in Havana, by the consul of the United States there» who had been specialty commissioned for the purpose, which would be received before the next session of the court. These documents were represented by the agent at Havana, to be very important in the cause. The motion was opposed by White, Ogden, Berrien and Webster, of counsel for the appellants ; and 471 723 SUPREME COURT [Jan’y . Mitchel v. United States. supported by Call and Butler. The motion was held under advisement until the 17th of March, when— Marshall, Ch. J., said :—The court has taken into its serious and anxious consideration, the motion made on the part of the government to continue the cause of Mitchell n. United States to the next term. Though the hope of deciding causes to the mutual satisfaction of parties would be chimerical, that of convincing them that the case has been fully and fairly considered, that due attention has been given to the arguments of counsel, and that the best judgment of the court has been exercised on the case, may be sometimes indulged. Even this is not always attainable. In the excitement produced by ardent controversy, gentlemen view the same object through such different media, that minds not unfrequently receive therefrom precisely opposite impressions. The court, however, must see with its own eyes, and exercise its own judgment, guided by its own reason. The motion is founded on the expectation, that by the next term, admissible evidence may be obtained, which will shed much light on this cause, and change essentially its present character. This motion is opposed, on the ground, that the delays have already been excessive; that a further continu-* .. ance for twelve months would affect one of the parties most *injuri- J ously ; and that no rational foundation is laid, for the opinion, that new and important additions will o«r can be made to the information the record at present contains. The cause was docketed on the 2d of February 1831. On the 26th of the same month, a motion was made on the part of the United States, to bring on the cause for argument at that term. This motion was opposed, and was overruled. The reasons of the court are not recollected ; but the motion was in opposition to a positive rule, and must for that cause alone have been rejected. In March 1832, the parties were willing to bring on the cause, but the court thought it too late in the term to take it up, and it was continued. In 1833 and in 1834, the cause was continued, on the motion of the attorney for the United States, supported by the same arguments which are now urged. This cause was commenced in the district court of the United States for the territory of Florida, in October 1828. The degree of intelligence which has beem employed in preparing the record for a final decision, gives the most absolute assurance, that from the commencement of the controversy, it must have been perceived that the case depended essentially on the sanction given by the authorities of Spain to the grants made by the Indians. It was perceived, that great efforts were made in the district court, by both parties, for the establishment of this fact. A vast mass of evidence has been collected on it, and is to be found in the record. An inspection of that evidence goes far to establish the opinion, that it cannot be materially varied. The government has unquestionably made great exertions ; we believe, all that could be made, to obtain any additional documents which the case may furnish. No difficulty has been opposed by the Spanish government to the inquiries of the American agents. On the contrary, every facility has been given to them. We cannot doubt, that the most important documents would be the most immediately forwarded. Those which have 472 1835] OF THE UNITED STATES. 724 Mitchel v. United States. arrived, have been inspected. They are not believed to vary the case; many of them are undoubtedly important, but they were already in the record, and have been considered. The transfer of all sales of crown lands from the *political to the treasury department, from the governor to the intendant, and the ordinance by which this change was effected, were already in possession of the court, and had been maturely considered. The documents referred to were chiefly in the record. We are not satisfied, from the communications of the agent of the United States, that the additional papers to which he alludes, and which he hopes to obtain, can materially affect the merits of the case. With this strong impression on our minds, we should not be justified in granting a still further continuance. The opinion of the court will be delivered. Baldwin, Justice, delivered the opinion of the court.—The land in controversy is claimed by the United States, in virtue of the treaty of cession by Spain, by which the territory and sovereignty of the two Floridas were acquired, in consideration of $5,000,000, paid in extinguishment of certain claims of the citizens of the United States on the government of Spain. Colin Mitchel claims, by deeds from various tribes of Indians belonging to the great Creek confederacy, to Panton, Leslie & Co., to John Forbes & Co., and to John Forbes, confirmed by the local authorities of Spain, whose right has become vested in him by sundry mesne conveyances, to which it is unnecessary to refer, as the regular deraignment of whatever title was vested in the original grantees to the present claimants, is not questioned. The lands are in four separate tracts, extending, from the mouth of the river St. Mark’s, outside of the islands along the sea-coast, to the west end of St. Vincent’s island, west of the mouth of the river Appalachicola; thence to that river, about five miles from its mouth, up the same for many miles ; thence by a back line to a point on the western bank of the St. Mark’s, above the old fort of that name, and down the said river to the sea. It is unnecessary to refer to the boundaries of the separate tracts, or the particular designation of the lines and points of the whole body of lands, as they are not a subject of controversy in this case ; the quantity, as estimated by the claimant, is 1,250,000 acres, and by the Spanish officers, 1,391,000 arpents.. The history of the claim is this: *The commercial house of Panton, Leslie & Co. had long been established at St. Augustine, in East Florida ; it had extensive con- L nections and great credit, in England, and its operations were very great. After Spain had taken possession of the Floridas, in virtue of the treaty of peace, of 1783, the king, by a royal order, gave them license to carry on aid continue their commercial operations in those provinces and Louisiana. As they were an English house, an oath of allegiance was required, which was taken by Mr. Panton, and by Mr. Leslie for himself and the other members of the firm, who were not in the province in 1786, with which the Spanish government was satisfied, as a compliance with the royal orders of the same year. This house conducted its affairs to the entire satisfaction of the successive governors-general of Louisiana and the local authorities of the Floridas, rendered important services to the crown, met with many and great losses, amounting, by the estimate of the Marquis of Casa Calvo, then 473 VM SUPREME COURT [Jan’y Mitchel v. United States. governor-general of Louisiana, in 1800, to $400,000. Five of his predecessors had recommended the awarding some indemnity to the house ; they had made repeated claims upon the crown, the justice of which had been acknowledged by all the local authorities, during all the changes of administration, in their numerous despatches to the ministry, which had been submitted to the king. They concurred in representing to the king the great importance and services of the house, as a political instrument of the government; that they had a right to indemnity from the king ; that the situation of the house was such, that they must sink under their losses, if it was not afforded ; and that it must be sustained and preserved, as indispensable to retain any control over the Indians, and secure the possession of the provinces intrusted to their care. In consequence of the repeated solicitations of the house to the king for compensation, a royal order was directed to the captain-general of Cuba, on the subject of the indemnities proper to be given them; in reply to which, among other propositions made by the governor-general of Louisiana, was a grant *of twenty leagues J square of royal lands, west of the Mississippi, or a loan of $400,000 without security. This shows the sense of that high officer of the value of the services of the house, the extent of their losses in their exertions in favor of the government, with the measure of remuneration which he considered to be due of right, in 1800. Among the losses sustained by the house, was a large amount due by the Seminole Indians, prior to 1800 ; and for robberies of their stores in 1792 and 1800, by members of that tribe, headed by the celebrated adventurer Bowles, exceeding, in all, $60,000 ; of which they were unable to procure any payment from the Indians, but who had expressed a willingness to make compensation by a grant of their lands. Early in 1799, the house made an application to the governor-general of Louisiana, for leave to purchase from the Indians as much land as would satisfy the above claims, which was favorably received by both him and his successor. Negotiation with the Indians was followed by a deed of cession from them, in 1804, of the large tract containing 1,200,000 arpents. This deed was confirmed at a general council of the nation and its chiefs, held at Pensacola, in 1806, in the presence of Folch, Governor of West Florida, in all the form and solemnity which Indians could give it. This governor had previously given leave to make the purchase, on a petition presented to him by the house, in January 1804,. setting forth the circumstances of the case ; which was granted on only one condition, that they should not dispose of the lands, without notice to, and knowledge of, the government ; and in December 1806, gave his full confirmation to the grant of the Indians made to Panton, Leslie & Co. Another application w^s made to the same governor, in 1807, for his permission to make an additional purchase from the same Indians, which was granted in December 1810, on condition, that the house should cede the whole, or part, of the lands to the king, if he should want them, at the price at which they acquired them, and not dispose of them, without notice to the government. **7oal flowing *year, the Indians granted the other tracts between -I the rivers Wakulla and St. Mark’s, including the fort, which was also confirmed by the governor, at a great public council of the Indians at Pensacola ; this tract contained by estimation 97,000 arpents. At the same 474 1835] OF THE UNITED STATES. 728 Mitchel v. United States. time, another tract on the sea-coast, including some islands at and west of the mouth of the Appalachicola, was in like manner granted by the Indians, and confirmed by the governor, to John Forbes & Co., the successor of Panton, Leslie & Co., containing 65,000 arpents. At the same time, and place, there was granted and confirmed to John Forbes, an island in the Appalachicola, containing 6800 arpents, for which no consideration was paid ; the grant being a gratuity by the Indians to Forbes, in consideration of his services and friendship rendered and shown to them for years before. It is not deemed necessary to recite more specially the various original deeds from the Indians, or those made in councils, after the lines had been marked which designated the boundaries of the respective grants, nor the grants of the governoi’ of West Florida, confirming them by titles in form, delivered to the parties ; they are in form and substance alike, and no question has arisen on their terms. Those of the Indians recite the considerations which led to the grants, convey the lands, with a warranty of their title, by ascertained boundaries, those of the governor ratify and confirm the grants in full and direct dominion, and in full property, put the grantees in possession, and promise to defend and maintain it, all of which he declares is done by using the powers vested in him. They are drawn up in great form ; contain a perfect recognition of the Indian grants, and give to them all the validity which he could impart to them. They are made in the name of the king, executed and attested in all due formality, and their authenticity proved as public documents, and by the testimony of witnesses to the official signatures. The claims of the house upon the Indians, *for debts due since 1789, and depredations committed, were notorious to the government >• and inhabitants of Pensacola, as were the purchases ; and their confirmation by the Indians, at which 2000 are computed to have attended, in 1811, is proved as fact by witnesses present in the different councils ; so is the fact of the ratification by the governor. The original deeds, and the demarcation of lines and boundaries were made in the presence of the commandant at St. Mark’s, exercising the offices of lieutenant-governor and sub-delegate of the intendancy, or were approved by him ; every act done in relation to the cessions and their ratification, from the first application to the governorgeneral in 1799, to their consummation in 1811, was public and notorious to both Indians and whites. Governor Folch reported all his proceedings to the captain-general of Cuba, by whom they were approved, who declared that the king would confirm them, and, as some of the witnesses say, declared that he had confirmed them. From the time of the first cession, in 1804, the Indians acknowledged the validity of the grants, were satisfied with them, called the land the white land, or the land of the whites, asked permission from the house to hunt upon them, and with the exception of some occasional depredations, respected their possession and property. Their title, too, was equally respected by the local government, and all the officers of the king, nor from him to the lowest does there appear to have been expressed any dissatisfaction at any of the acts of Governor Folch, or the least doubt of the perfect validity of the title ; though the claim of the house to the whole land conveyed, was perfectly known and evidenced by a partial actual possession, taken at an early period, and continued till the cession of the provinces. There is no evidence in the record, that either 475 m SUPREME COURT [Jan’y Mitchel v. United States. the Indians, the governor, or intendant, ever made a cession, grant, order of survey, or gave permission to settle within the boundaries of any of the grants. It is also a circumstance of no small consideration, that notwithstanding the long and inveterate controversy *between the governor J and intendant about their powers to grant lands, even in small tracts, there was none in relation to these. Yet the intendant had full notice of them, spoke of them, but made no objection, or preferred any complaint to the captain-general or the king, although the quantity of land thus granted to this house was nearly double the whole amount of the grants of royal lands made by the government of West Florida. It was also proved, that in the opinion of those who know the land, as well as the officers of government, it was not worth, at the time, the amount of the just claims of the ho«se on the Indians ; that the grants were taken as the only means of their indemnification, and that the purchase was much less advantageous to them than to the king, who thereby became absolved from a claim not only too just to deny, but too large to satisfy, with convenience. It is also proved, that the Indians who made the cessions occupied the lands for huntinggrounds ; were deemed the owners of them, as Indian lands, and had three settlements upon them previously, and that the country was claimed by the Seminóles. The lines were marked, by persons appointed by the governor, in presence of the Indians, who consented to them, and the governor gave formal possession to the house, according to the plats of the several grants exhibited to him, which the witnesses declare to have corresponded with the lines marked upon the ground, and those recited in the deeds and petitions. In opposition to this mass of documentary and parol testimony, in support of the allegations of the petitioners, that the grants were in fact made and confirmed, in the manner, and for the reasons and considerations set forth, no direct evidence appears in the record. Some of the witnesses were examined as to the supposed influence of the house with Governor Folch, but the imputation was negatived, and the proceedings throughout declared to have been in good faith. * So far then as the merits of the case depend on the genuineness of the deeds and documents, the facts of the grants and confirmations by the Indians and governor, the marking the lines and possession of the land, -i the good faith of the whole *transaction, the absence of fraud, the ‘ J authority of the Indian chiefs, as representatives of their respective tribes, we entirely concur in opinion with the court below. That the grants were made bond fide, for a valuable consideration, of the adequacy of which the Indians were competent judges, if they had any right in the lands which they could convey ; that the ratification of the governor was fairly and fully made, and for good and sufficient reasons, of which he was the judge, if he had competent authority to give effect and validity to Indian cessions of the land in controversy. The view which the learned judge took of these questions, after a through, searching examination of the documents and evidence, is so entirely satisfactory, that we have only to express our assent to the conclusions at which he arrived. There is, however, one subject which was considered by him, into which we do not feel at liberty to inquire, which is the water-mark in the paper on which the governor’s permission of the 7th of January of 1804, was 476 1835] OF THE UNITED STATES. 731 Mitchel v. United States. written, noticed and commented on at large by the judge. This objection was not made in the court below, at the hearing, or in the argument, so that no opportunity was afforded to the petitioner to produce any evidence on the subject, or to his counsel to answer the objection. This court also refused to grant him a commission to take testimony to explain and account for the water-mark, or permit him to read the ex parte evidence offered to explain it; because, in an appellate court, no new evidence could be taken or received, without violating the best-established rules of evidence and law. Under such circumstances, it would be dealing to the petitioner a measure of justice, incompatible with every principle of equity, to visit upon his title an objection which he was not bound to anticipate in the coui't below, which he could not meet there, and which this court were compelled to refuse him the means of removing by evidence. We will not say, what course would have been taken, if his title had depended on the date of the paper alluded to ; as the case is, it is only one of numerous undisputed documents tending to establish the grant, the validity of which is but little, if it could be, in any degree, affected by the date of the permission. It is objected by the counsel of the United States, that the *orig-inal acts of the confirmation of the Indian sales by Governor Folch, L are not produced, and that the copies in evidence are not legal proof of such acts. This objection seems to us not to be well founded in fact or law. The original Indian deeds were procured by the agent of the United States, from the public archives in Havana, and are now before us. The deeds of confirmation were made according to the rules of the civil law, adopted by Spain, and in force in Florida and Cuba ; the original is a record, and pre served in the office, which cannot be taken out; a testimonio or copy is delivered to the party, which is deemed to be, and is certified as, an original paper, having all the effect of one, in all countries governed by the civil law. Such is proved to be the law of those colonies, as a fact, by Mi*. W^hite; such is the form of the certificates in this case, varying in phraseology somewhat, but agreeing in substance and effect, in perfect accordance with the civil law adopted in Louisiana, and recognised by this court in the case of Owings n. Hull, decided at the present term {ante, p. 607). We, therefore, consider those now produced as original deeds of confirmation by the governor, duly certified and proved. It is objected, that the deeds of 1804 and 1806, to Panton, Leslie & Co., were inoperative to pass the lands, they having died previously. It is in proof, as a fact, that Forbes & Co. were the successors in business and interest to Panton & Co. This phange of the name and partners of the house, after the death of Mr. Panton, was known to the officers of the local government and the king, who by a royal order in 1805, and another in 1807, directed it should have no effect on their privileges. To the king, it mattered not, whether the lands were conveyed to the house as a firm, or to the partners nomination ; they, it seems, preferred considering the lands as a part of the general effects of the patrnership, and received the deeds accordingly; as it concerned only them, and as there has been produced no law of Spain invalidating such a grant, the objection cannot be sustained. Another objection, on account of an oath of allegiance not Shaving p^gg been taken by the grantees, is removed by the evidence already referred to, and need be no furthei* considered. 477 733 SUPREME COURT [Jan’y Mitchel v. United States. It is objected, that the grant of 1811 is invalid, because it comprehends the fort of St. Mark’s, then actually occupied by the troops of the king. It is in full proof, that the site of St. Mark’s and the adjacent country was within the territory claimed by the Seminole Indians. It is not certain from the evidence, whether it was purchased from the Indians, or merely occupied by their permission; there seems to be no written evidence of the purchase, but no witness asserts that possession was taken adversely to the Indian claim, and it is clearly proved to have been amicably done. Whether the Indians had a right to grant this particular spot then, or not, cannot affect the validity of the deeds to the residue of the lands conveyed in 1811. The grant is good, so far as it interfered with no prior right of the crown, according to the principles settled by this court in numerous cases arising on grants by North Carolina and Georgia, extending partly over the Indian boundary, which have uniformly been held good, as to whatever land was within the line established between the state and the Indian territory. Danforth n. 'Wear, 9 Wheat. 673; Patterson v. Jenckes, 2 Pet. 216; and Winn v. Patterson, decided by the supreme court of the United States, January 1835 (ante, p. 663). As to the land covered by the fort and appurtenances, to some distance around it, it becomes unnecessary to inquire into the effect of the deeds, as the counsel of the petitioner have, in open court, disclaimed any pretensions to it. Another objection is of a more general nature, that the grantees did not acquire a legal title to the lands in question. But it must be remembered, that the acts of congress submit these claims to our adjudication as a court of equity ; and, as often and uniformly construed in its repeated decisions, confer the same jurisdiction over imperfect, inchoate and inceptive titles, as legal and perfect ones, and require us to decide by the same rules on all claims submitted to us, whether legal or equitable. Whether, therefore, the title in the present case partakes of the one character or the other, it remains only for us to inquire, whether that of the petitioner is such, in our , °pini°nJ that *he has, either by the law of nations, the stipulations of J any treaty, the laws, usages and customs of Spain, or the province in which the land is situated, the acts of congress or proceedings under them, or a treaty, acquired a right which would have been valid, if the territory had remained under the dominion and in possession of Spain. In doing so, we shall not take a detailed review of the leading cases on Spanish grants, already decided by this court, in relation to those lands which formed a part of the royal domain, in contradistinction to those which may be considered as Indian lands, claimed by Indians, by their title, whatever it may be. Those comprehended within the claim of the petitioners being of the latter description, as they contend, and thereupon rest their title, it will suffice to state some general results of former adjudications, which are applicable to this case, are definitively settled, so far as the power of this court can do it, and must be taken to be the rules of its judgment. They are these : That by the law of nations, the inhabitants, citizens or subjects of a conquered or ceded country, territory or province, retain all the rights of property which have not been taken from them by the orders of the conqueror, qt the laws or the sovereign who acquires it by cession, and remain under their ’former laws, until they shall be changed. That a treaty of ces-478 1835] OF THE UNITED STATES. 734 Mitchel v. United States. sion was a deed or grant by one sovereign to another, which transferred nothing to which he had no right of property, and only such right as he owned and could convey to the grantee. That by the treaty with Spain the United States acquired no lands in Florida to which any person had lawfully obtained such a right, by a perfect or inchoate title, that this court could consider it as properly under the second article, or which had, according to the stipulations of the eighth, been granted by the lawful authorities of the king ; which words, “ grants,” or “ concessions ” were to be construed in their broadest sense, so as to comprehend all lawful acts which operated to transfer a right of property, perfect or imperfect. 6 Pet. 710 ; 7 Ibid. 86, 88 ; 8 Ibid. 445, 449, 450, 486. That the effect of the clauses of confirmation of grants made was, that they confirm them presently on the ratification of the treaty, to those in possession of the lands, which was declared *to be—that the legal seisin and possession which follows a title, is co-extensive with the right, and continues till it is ousted *-by an actual adverse possession, as contradistinguished from residence and occupation. 6 Pet. 743 ; 8 Cranch 229—30 ; 4 Wheat. 213, 233 ; 4 Pet. 480, 504, 506 ; 5 Ibid. 354-5. That the United States, by accepting the cession, under the terms of the eighth article, and the ratification by the king, with an exception of the three annulled grants to Alagon, Punon Rostro and Vargas, can make no other exceptions of grants, made by the lawful authorities of the king. 8 Pet. 463-4. That the meaning of the words “lawful authorities,” in the eighth article, or “competent authorities ” in the ratification, must be taken to be “ by those persons who exercised the granting power, by the authority of the crown.” That the eighth article expressly recognises the existence of these lawful authorities in the ceded territories, designating the governor, or intendant, as the case might be, as invested with such authority, which is to be deemed competent till the contrary is made to appear. 8 Pet. 449-53. That by “ the laws of Spain,” is to be understood the will of the king, expressed in his orders, or by his authority, evidenced by the acts themselves, or by such usages and customs in the province as may be presumed to have emanated from the king, or to have been sanctioned by him, as existing authorized local laws. 6 Pet. 714-16. In addition to the established principles heretofore laid down by this court, as to the legal effect of a usage or custom, there is one which is peculiarly appropriate to this case. The act of congress giving jurisdiction to this court to adjudicate on these causes, contains this clause in reference to grants, &c., “ which was protected and secured by the treaty, and which might have been perfected into a complete title, under and in conformity to the laws, usages and customs of the government under which the same originated.” 6 Pet. 708-9. (4 U. S. Stat. 52.) This is an express recognition of any known and established usage or custom in the Spanish provinces, in relation to the grants of land and the title thereto, which brings them within a well-established rule of law—that a custom or usage saved *and preserved by a statute has the force of an express statute, p^gg and shall control all affirmative statutes in opposition, though it must yield to the authority of negative ones, which forbid an act authorized by a custom, or usage thus saved and protected (4 Inst. 86, 298); and this is 479 »I - 736 SUPREME COURT [Jan’y Mitchel v. United States. the rule by which we must test its efficacy, according to the act of congress, which we must consider as of binding authority. In taking possession of Florida, pursuant to the treaty, and in establishing a government in and over it, congress have acted on the same principles as those which were adopted by this court in the former cases. In the act of 1821, for -carrying the treaty into execution, congress authorizes the vesting the whole power of government in such person as the president may direct for the maintaining the inhabitants in the free enjoyment of then- property. (3 U. S. Stat. 637.) The governor thus appointed, by his proclamation in the same year, announces to the inhabitants that he has been invested with all the powers, and charged with all the duties heretofore held and exercised by the captain-general and of the intendant of the island of Cuba, over the Floridas, and the governor thereof ; recites the foregoing act of congress, declares that they shall be maintained and protected in the free enjoyment of their property, &c., and that all laws and municipal regulations which were in existence at the cessation of the late government remain in full force. Pamphlet of 1822, p. 113. The 10th section of the act of 1822, contains the same pledge for the protection of property, and the 13th continued in force the existing laws, till altered by the local legislature then organized. (3 U. S. Stat. 658-9.) The formal act of the surrender of the Floridas by Spain to the United States, was made by the commandants of both of the provinces, by the authority of the captain-general of Cuba, under a royal order. Pamphlet, p. 110. These are most solemn acts of both governments, which, as the proceedings under the treaty of cession, are made a rule for our guide in deciding on the validity of the title to lands in the provinces; they have all been ratified and approved "by the king and congress, affording the highest possible evidence of the true meaning of both the high contracting parties to *3-| the treaty. They point directly to the kind of government *which J existed before the cession, as being vested in the captain-general and intendant of Cuba, and the governors of the provinces, as the supreme legislative, executive and judicial power,subordinate to the king only; and as it became, afterwards, in the hands of the governor alone, by act of congress ; subordinate only thereto, while under both, the government was administered in conformity to the local laws and municipal regulations. It cannot, therefore, be doubted, that among the other powers of the former government, that of granting lands was invested in some of its officers, nor that such officers were the governor, the intendant, or captain-general, as the case might be ; thus exhibiting a union of opinion between the king of Spain as well as the legislative and judicial departments of this government, as to the meaning of the treaty, which cannot be without its influence, on its true construction and bearing on the rights of parties now before this court, sitting in an appellate court of equity, directed to decide “ in conformity to the principles of justice” and the laws and ordinances of the government under which the claim of the petitioner originated, they must be our guide. Colin Mitchel claims the land in controversy as a purchaser from Panton, Leslie & Co., John Forbes & Co., and John Forbes, who were purchasers from the Seminole or Tallapoose Indians, bond fide, for a valuable consideration paid by one party, and received by the other, by force of contract, accompanied with the legal seisin and possession of the whole, and actual pedis 480 1835] OF THE UNITED STATES. Mitchel v. United States. 737 possessio of a part, under a claim of right and title to the whole by grant. The equity of the parties from whom Mitchel purchased, commenced in 1789, 1790, 1792, when the depredations were first committed and the debts contracted which formed the consideration of the Indian deeds ; the debts increasing till 1800, and the depredations then renewed. A claim early made on the Indians for compensation, and on the government of Spain for indemnity, continued, till an agreement for the cession of lands by the former was made in 1800, and carried into effect in 1804 and 1806 ; when it was carried into grant, ratified and confirmed by the Indians, the governor of ■West Florida, and captain-general of Cuba, without an interfering claim, till the cession to the United States in 1820, 1821. On the other hand, the United States claim the land *by purchase from the king of Spain, made bond fide,, for a valuable consideration fully paid, but with full *-and direct notice of the equity of Forbes & Co., and the purchase in the name of Panton, Leslie & Co., of which Forbes was partner, which notice was as early as 1804. The earliest equity claimed by the United States was in January 1818, when the cession was first proposed ; the first agreement to convey by Spain was in 1819, the date of the treaty ; and the final grant was made in 1820, the date of the ratification ; and possession first taken in 1821, pursuant to the conveyance of the treaty. Thus viewing the contending parties, we proceed, as a court of equity, to inquire, whether at the time the cession by the treaty took effect in favor of the United States, there was a right of property in Colin Mitchel to the lands included in his grants, or whether they had been previously granted by the lawful authorities of the king. That they were granted in fact, is incontestable ; and they were private property, if there was a grant competent by law to vest a title. It is contended by the United States, that the acts of Governoi* Folch, in the permissions to purchase from the Indians, and the ratifying and confirming their deeds, are void, as the lands were not in West Florida, over which province alone he had any jurisdiction. There seems no doubt, that, under the British government, the river Appalachicola remained the boundary between East and West Florida, as it was so established by proclamation of the king in 1763 (1 Laws U. S. 444), but it does not appear, that Spain had adopted it in administering the government of those provinces, by any royal order, or that such was a common opinion of the inhabitants ; on the contrary, it appears, that so early as 1785, Don Galvez, then governor-general of Louisiana, considered the district of St. Mark’s de Appalachy as a dependency of his government, and in 1786, placed it under care of the government of West Florida, and ordered the establishment of a post there, by a detachtnent from the garrison of Pensacola, which acts were approved by a royal order, in March 1787. These orders were acquiesced in by the governor of East Florida, who appears to have exercised no jurisdiction within that ^territory, or to the west of it, after 1786. There is abundant evidence in the record, that that post, the circumjacent territory, with what lies between it and the Appalachicola, was a dependency on, and subject to, both the civil and military jurisdiction of the governor of West Florida, and was so considered by all the officers of the government, the captain-general, and the king, as appears from many documents. The fact of the exercise of jurisdiction over that territory by the governor of West Florida is also established by 9 Pet.—31 481 73» SUPREME COURT Mitchel v. United States. [Jan’y the concurring testimony of many witnesses, as is also the fact of its surrender by him to the United States as a part of the territory under his command. (Laws of 1832, Pamphlet 112.) But evidence of the fact, still more conclusive, and its most solemn recognition by both governments, is to be found in the formal act of surrendering the sovereignty and possession of the province by Spain to the United States. The governor of West Florida “ placed the commissioner of the United States in possession of the country territories, and dependencies of West Florida, including the fortress of St. Mark’s, with the adjacent islands, dependent on said province.” (White 198 ; Pamphlet Laws 112.) So it was accepted and is yet held by the United States, and so we must consider it as understood by congress in the various laws passed since the cession, and the proceedings therein authorized under the treaty in reference to East and West Florida. The boundary between them must be taken to be that which existed under Spain, from 1785 till 1821, as incontestibly proved, and most solemnly admitted by the United States, up to which the powers of the governor of West Florida, whatever they might be, could be exercised in their plenitude, both as a government de facto and a government demure. It becomes needless to inquire whether, after these solemn acts, it is competent for the United States now to contest the existence of such boundary ; it suffices for this case, that it is abundantly established by all the evidence, which is uncontradicted, and that the lands in controversy are situated within West * _ Florida, according to the boundaries recognised by both *goyern- J ments. This objection cannot, therefore, be allowed to prevail. It is next contended, that the power to grant lands in West Florida was not vested in the governor, but was confided exclusively to the intendant; this is clearly proved to be the settled law of that province as to royal lands, which were the property of the crown, and is admitted by the counsel of the petitioner. But the reverse is, we think, equally apparent, as to Indian lands, until their right had been abandoned, and the land become annexed to the royal domain by a process in the nature of an office at common law. (White 25, 40, 42, 79, 43, 47, 215.) The relations between the Indians and the government of Spain, were considered as matters of the deepest political concern, in no wise connected with its fiscal operations; the commerce with the Indians was, as a political instrument, intrusted exclusively to the governors, as clearly appears by their correspondence with each other, the captain-general of Cuba, and the ministry in the mother country, and regulated by royal orders, with which the intendancy had nothing to do. (White 35.) It was a part of the governor’s oath, as prescribed by the laws of the Indies, “ that you shall take care of the welfare, increase and protection of the Indians.” He was their protector, whose duty it was to examine whether claims upon them were well founded, and if so, contribute by all possible means to their being paid, but not to lend his sanction, or allow the smallest injury to be done to them. The fact of the supervision of Indian sales of their land, by the governors of provinces and commandants of posts, in acts of confirmation and putting the purchasers in possession, is very clearly established by the report of the land commissioners of the United States in Louisiana. It was exercised by Don Galvez, governor-general of Louisiana, as early at least as 1777, in confirming an Indian sale of the great Houma tract on-the Mississippi (1 Laws U. S. 551, 552, 554), and there is no evi- 482 1835] OF THE UNITED STATES. 740 Mitchel v. United States. dence that this power was ever intrusted to or conferred on any other officer, nor that it was ever exercised by any other. It was an authority expressly delegated to them by the laws (White 232-4), and so reported by the commissioners, *proved also as a fact by the former secretary of the province, and Governor Folch. It cannot, indeed, be well ques- L tioned, that the governors and commandants of posts where the appropriate officers for these purposes, in the absence of any evidence of confirmation by intendants, with positive evidence of their approbation by the captaingeneral of Cuba, in making formal acts of confirmation, without objection by the intendant-general of Cuba, or by local intendants. When to these considerations is added another, arising from the circumstance of there being no instance of the rejection of disaffirmance of a deed confirming an Indian sale, by any of the superior authorities in the provinces, or by the king, as is clearly established, and admitted in the argument, we cannot feel authorized to declare, that Governor Folch usurped any powers vested in the intendant, in any of his acts relating to these lands. The confirmation of similar grants, made by acts of congress, or by boards of commissioners acting under their authority, are also powerful evidence of the lawful exercise of the authority of these officers ; and being proceedings under the treaty and laws, they are made a rule by which, among others, we may adjudicate on the claims of the present parties ; in doing which, we cannot sustain this objection, without overlooking such a concurrence of evidence of various descriptions, as leaves no reasonable cause of a doubt of the authority of Governor Folch ; especially, when we connect with his first permission to make the purchase of 1804, the condition attached to it, that the lands should not be disposed of, without the giving notice to, and knowledge of, the government; and to that of J 811, that it should be conveyed to the king, if required, at the price at which it was purchased, and the mode in which that condition was performed and released. Pursuant to these conditions, John Forbes applied to the captain-general of Cuba, in 1817, for permission to sell the land to the petitioner, which being referred to the assessor-general, for his advice, he reported that the lands had been transmitted actually and lawfully in full property to Mr. Forbes, with a conditional title, or “ titulo oner o so” for which acquisition competent permission was given by Governor Folch, who ^delivered titles of con-firmation subsequently ; whereupon, a formal permission was given L by the captain-general to make the sale, which was a direct approbation of all the proceedings authorized by that governor, as well as that he was the officer designated for such purpose. Such a confirmation by an officer subordinate only to the king, performed so long after the acts done by the governor of a province, who was under the control of a captain-general, must be referred to his legitimate authority competent for the purpose. It was done also on the deliberate advice of an officer responsible to the crown, which makes the presumption very strong, if not irresistible, that every thing preceding it had been lawfully and rightfully done. (White, 25, 40, 43, 47, 49.) This proceeding is in the nature of an inquest of office, in analogy to the writ of ad quod damnum, which, by the common law, precedes the grant of any charter, license or patent of the king, of anything which .may be injurious to his or the rights of others, on which an inquest is taken, on whose report the king acts, on the advice of the proper officer or tribunal, 483 742 SUPREME COURT Mitchel V. United States. [Jan’y makes the grant or withholds it, as advised. (3 Bl. Com. 259 ; 17 Vin. Abr. 171, 176 ; 7 Day’s Com. Dig. 80.) The report of the assessor-general seems to have been acted on, as an inquisition at common law, finding that there was no obstacle to the making use of the powers intrusted to the captaingeneral. We should feel it to be an assumption of much responsibility, to declare that on the evidence in this record, and the law arising upon it, that either of the officers referred to usurped powers not vested in them, or exercised them against, or without, the authority of the king. The counsel of the United States pressed in argument the decision of this court in the case of Arredondo, as an affirmance of the right of the intendant of the province, or of Cuba, to grant Indian lands. In that case, the lands granted had been in the possession and occupation of the Allachua Indians, and the centre of the tract was an Indian town of that name. But the land had been abandoned, and before any grant was made by the intendant, a report was made by the attorney and surveyor-general, on a reference to them, finding the fact of abandonment, on which it was decreed that the *■7191 had reverted to and become annexed to the royal domain. *Con- -* sidering this to be a judicial act, in the nature of an inquest of office, and the decree of the intendant as making the fact a res adjudicata, we did not feel at liberty to look behind it for th’e evidence on which it was founded ; the consequence of which was, that by the judgment of a competent tribunal, the land was part of the royal domain, subject to the disposition of the intendant. There is no pretence of a similar proceeding having been had in relation to these lands, nor could there well be, in opposition to the evidence in the record, especially the report of the assessor-general, in 1817, that they were the lands of the Seminóles, at the time of the cession by them, and the confirmation by Governor Folch. By the common law, the king has no right of entry on lands, which is not common to his subjects ; the king is put to his inquest of office, or information of intrusion, in all cases where a subject is put to his action ; their right is the same, though the king has more convenient remedies in enforcing his. If the king has no original right of possession to lands, he cannot acquire it, without office found, so as to annex it to his domain. (2 Inst. 46 ; Sav. 8, 9. pl. 20 ; Hob. 347 ; Hardr. 460; 7 Day’s Com. Dig. 77 ; Gilbert’s Ex. 109 ; 3 Bl. Com. 257 ; Fitz. N. B. 90 b; 4 Co. 58 b ; 16 Vin. 552 ; 3 Co. 10, 11 ; 9 Ibid. 95, 96, 98; Hardr. 51-2 ; Plowd. 236, 486 ; 1 Co. 42 ; 5 Ibid. 52 b; Plowd. 229-30.) Such, too, seems to be the law of Spain in the Floridas and Cuba, as appeared in the case of Arredondo, and as it must have been understood by the Spanish authorities, when they acknowledged the Indian right to lands in the harbor of Pensacola to be an existing one, in 1816. Nor is there any evidence in the record, that their right ceased to be respected, or that lands which had been in their possession became annexed to the royal domain, till some official proceeding, founded on the law of Spain, in the nature of an office by the common law, had taken place under the proper authority. (White, 25, 40, 37.) The United States have acted on the same principle, in the various laws which congress have passed in relation to private claims to lands in the Floridas ; they have not undertaken to decide for themselves on the validity of such claims, without the previous action of some tribunal, special or judi- 484 1835] OF THE UNITED STATES. '743 Mitchel v. United States. cial. They have not authorized an entry to be made on the possession of *any person in possession, by color of a Spanish grant or title, nor the sale of any lands, as part of the national domain, with any inten- L tion to impair private rights. The laws which give jurisdiction to the district courts of the territories to decide in the first instance, and to this, on appeal, prescribe the mode by which lands which have been possessed or claimed to have been granted pursuant to the laws of Spain, shall become a part of the national domain, which, as declared in the seventh section of the act of 1824, is a “final decision against any claimant, pursuant to any of the provisions of the law.” Another objection is made to the title of the petitioner, on the allegation that, by the treaty of Picolata, between Great Britain and the Creeks, in 1765, the Indians had ceded all the lands in controversy between the sea and flow of the tide, in virtue of which they became the property of the crown, and passed to Spain by the treaty of 1783. The fifth article of the treaty of Picolata, made to prevent encroachments on the lands or huntinggrounds of the Creeks, stipulates that the boundary of the province of East Florida “ shall be all the sea-coast, so far as the tide flows, in the manner settled with the great Tomachiches, by the English,” with all the country particularly described therein, which they grant and confirm to the king. As this refers to a treaty or compact made with this chief, its meaning must be sought in it; and unless something can be found there, which will make the expression more definite than the general terms “ all the sea-coast, so far as the tide flows,” it will require great latitude of construction, as to an Indian cession, to extend it from the St. Mary’s around the peninsula of Florida to the mouth of the Appalachicola. The tract of country'ceded lies on the sea-coast, east of a point formed by a line run from the source of the St. John’s, which is its southern boundary; the western boundary is a line run from the junction of the Ockla waugh with the St. John’s, northwardly to the St. Mary’s, nearly parallel to the sea-coast, at an average distance of about thirty miles west. It would be stretching the meaning of this treaty very far, to embrace within it an extent of sea-coast and contiguous land within the flow of the tide, to its whole extent, when the extent of the lands ceded, west of a line from the mouth of the Ocklawaugh to *the sea, was so small. Before we could do it, it must appear to ^*^4$ have been so previously settled between the English and Tomachiches, as is referred to in the treaty of Picolata. From the account given in McCall’s History of Georgia, the treaty with Tomachiches was held in 1733, and the cession of the sea-coast was only between the Altamaha and Savannah, extending west to the extremity of the tide-water. (1 McCall s Hist. 37.) As this is the act referred to, it must be taken in connection with the subsequent treaty to make it certain by the reference (6 Pet. 739) which entirely removes the objection, and shows the cessions of the sea-coast to be confined to that part which is between the St. Mary’s and St. John s livers. The report of the surveyor-general, in 1817, is very full on the subject of the boundaries between the British government and the Indians in East and West Florida. He says, “with regard to East Florida, I have never been able to discover that there has ever been any treaty or agreement with the natives of that province, concerning the limits of their possession, nor in that of the Spanish authority.” As the surveyor-general had referred to 485 745 SUPREME COURT JJan’y Mitchel v. United States. the treaty of Picolata in his report, it is clear, that it was construed by the Spanish government as it now is by this court. We now come to consider the nature and extent of the Indian title to these lands. As Florida was for twenty years under the dominion of Great Britain, the laws of that country were in force as the rule by which lands were held and sold ; it will be necessary to examine what they were, as applicable to the British provinces, before the acquisition of the Floridas by the treaty of peace, in 1763. One uniform rule seems to have prevailed, from their first settlement, as appears by their laws; that friendly Indians were protected in the possession of the lands they occupied, and were considered as owning them, by a perpetual right of possession, in the tribe or nation inhabiting them, as their common property, from generation to generation, not as the right of the individuals located on particular spots. Subject to his right of possession, the ultimate fee was in the crown and its *'74R1 grantees, which could be granted by the *crown or colonial legisla- J tures while the lands remained in possession of the Indians, though possession could not be taken, without their consent. Individuals could not purchase Indian lands, without permission or license from the crown, colonial governors, or according to the rules prescribed by colonial laws ; but such purchases were valid, with such license, or in conformity with the local laws ; and by this union of the perpetual right of occupancy with the ultimate fee, which passed from the crown, by the license, the title of the purchaser became complete. Indian possession or occupation was considered with reference to their habits and modes of ife ; their hunting-grounds were as much in their actual possession as the cleared fields of the whites ; and their right to its exclusive enjoyment in their own way, and for their own purposes, were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals. In either case, their right became extinct, the lands could be granted disincumbered of the right of occupancy, or enjoyed in full dominion by the purchasers from the Indians. Such was the tenure of the Indian lands by the laws of Massachusetts (Indian Laws, 9-10, 15-19, 21) ; in Connecticut (40-2) ; Rhode Island (52, 55) ; New Hampshire (60) ; New York (62, 64, 71, 85, 102) ; New Jersey (133) ; Pennsylvania (138) ; Maryland (141, 143-5) ; Virginia (147-8, 150, 153-4) ; North Carolina (163-4, 58) ; South Corolina (178-9) ; Georgia (186-7) ; by congress (Appendix, 16) ; by their respective laws, and the decisions of courts in their construction. (See cases collected in 2 Johns. Dig. 15, tit. Indians ; and Wharton’s Dig. tit. Land, &c. 488.) Such, too, was the view taken by this court of Indian rights, in the case of Johnson v. McIntosh (8 Wheat. 571, 604), which has received universal assent. The merits of this case do not make it necessary to inquire whether the Indians within the United States had any other rights of soil or jurisdiction ; it is enough to consider it as a settled principle, that their right of occupancy is considered as sacred as the fee-simple of the whites. (5 Pet. 48.) The principles which had been established in the colonies were adopted by the king, in the proclamation of October 1763, and applied to the pro-* , vinces acquired by the treaty of peace, and *the crown lands in the J royal provinces, now composing the United States, as the law which should govern the enjoyment and transmission of Indian and vacant lands. 486 1835] OF THE UNITED STATES. 747 Mitchel v. United States. After providing for the government of the acquired provinces (1 Laws U. S. 443-4), it authorizes the governors of Quebec, East and West Florida, to make grants of such lands as the king had power to dispose of, upon such terms as have been usual in other colonies, and such other conditions as the crown might deem necessary and expedient, without any other restriction. It also authorized warrants to be issued by the governors, for military and naval services rendered in the then late war. It reserved to the Indians the possession of their lands and hunting-grounds ; and prohibited the granting any warrant of survey or patent, for any lands west of the heads of the Atlantic waters, or which, not having been ceded or purchased by the crown, were reserved to the Indians ; and prohibited all purchases from them, without its special license. The warrants issued pursuant to this proclamation, for lands then within the Indian boundary, before the treaty of Fort Stanwix, in 1768, have been held to pass the title to the lands surveyed on them, in opposition to a Pennsylvania patent afterwards issued. (Sims v. Irvine, 3 Dall. 427-56.) And all titles held under the charter or license of the crown to purchase from the Indians have been held good, and such power has never been denied ; the right of the crown to grant being complete, this proclamation had the effect of a law in relation to such purchases; so it has been considered by this court. (8 Wheat. 595-604.) Settlements made by permission of the commanding officers of posts on lands not ceded by the Indians, have been held to give a pre-emption to lands in a proprietary government, and warrants and patents for such lands have been uniformly held good, when knowingly made by the proprietary or his officers, as lands not purchased from the Indians. (See Wharton’s Dig. tit. Lands 488.) This proclamation also directed that purchases from Indians should be made at a public council or assembly, in the presence of the governor or commander-in-chief of the colony, and be purchased for the king and in his name. (1 Laws 447.) The Indian deeds made at the treaty of Fort Stanwix were to the king, in trust for the grantees. (Colony Titles 82-98.) *Grants made by „ the Indians at public councils have since been made directly to the *• purchasers, or to the state in which the land lies, in trust for them, or with directions to convey to them, of which there are many instances of large tracts so sold and held, especially in New York. (Indian Treaties 13-38.) It was a universal rule, that purchases made at Indian treaties, in the presence and with the approbation of the officer under whose direction they were held, by the authority of the crown, gave a valid title to the lands ; it prevailed under the laws or the states, after the revolution, and yet continues in those where the right to the ultimate fee is owned by the states or their grantees. It has been adopted by the United States, and purchases made at treaties held by their authority have been always held good by the ratification of the treaty, without any patent to the purceasers from the United States. This rule in the colonies was founded on a settled rule of the law of England, that by his prerogative, the king was the universal occupant of all vacant land in his dominions, and had the right to grant it at his pleasure, or by his authorized officers. (Hob. 322 ; Co. Litt. 1, 41 b ; 4 Bac. Abr. tit. Prerog. 153 ; 7 Day’s Com. Dig. 76.) The authority of the proclamation is in the right of the king to legislate over a conquered country, which as Lord Mansfield says, was never denied 487 748 SUPREME COURT Mitchel v. United States. [Jan’y in Westminster Hall, or questioned in parliament. If a king comes to a country by conquest, he may alter its laws ; but if he comes to it by title and descent, it must be with consent of parliament. He is intrusted with making the treaty of peace; he may yield up the conquest, or retain it on what terms he pleases. These powers no man ever disputed ; neither has it hiterto been controverted, that the king might change part or the whole of the law or political form of government of a conquered dominion. He comes in place of the king of Spain, the former sovereign. (Cowp. 204, 213, in a case arising under this proclamation.) The proclamation of October 1763, then, must be taken to be the law of the Floridas, till their cession by Great Britain to Spain, in 1783, superseding, during that period, the laws of Spain which had been before in force in those provinces, so far as they were repugnant; and according to the established principles of the * _ *^aws nations, the laws of a conquered or ceded country remain in J force, till altered by the new sovereign. The inhabitants thereof also retain all rights not taken from them by him in right of conquest, cession, or by new laws. It is clear, then, that the Indians of Florida had a right to the enjoyment of the lands and hunting-grounds reserved and secured to them by this proclamation, and by such tenure and on such conditions as to alienation as it prescribed, or such as the king might afterwards direct or authorize. The Indians had also a right to the full enjoyment of such rights of property as the king might choose to impart to them, by any regulation, by treaty, or promise made to them by his authority. By the treaty of Mobile, in 1765, the boundary of the lands or huntinggrounds reserved and claimed by the Chickasaw and Choctaw Indians was settled, a cession was made to the king, reserving to themselves full right and property in all the lands northward of such boundary. The treaty of Pensacola, in the same year, established the boundary with the upper and lower Creeks, who made a cession of lands, which they granted and confirmed to the king, and a similar treaty was made with the Creeks, at Picolata, in East Florida, in the same year. By thus holding treaties with these Indians, accepting of cessions from them, with reservations, and establishing boundaries with them, the king waived all rights accruing by conquest or cession, and thus most solemnly acknowledged that the Indians had rights of property which they could cede or reserve, and that the boundaries of his territorial and proprietary rights should be such, and such only, as were stipulated by these treaties. This brings into practical operation another principle of law settled and declared in the case of Hall v. Campbell, that the proclamation of 1763, which was the law of the provinces ceded by the treaty of 1763, was binding on the king himself, and that a right or exemption once granted by one proclamation, could not be annulled by a subsequent. (Cowp. 213.) It cannot be necessary to inquire, whether rights secured by a treaty approved by the king are less than sacred under his voluntary proclamation. * *By the treaty of Augusta, in 1773, a cession was made to the J king of certain lands, for a specified consideration, which was to be paid to persons to whom the Cherokees and Creeks were indebted, and to defray the expenses of the treaty. This cession was made under an asserted claim of a right of property by the Creeks to the ceded lands, and a boundary was established between their remaining lands and those of the king in 488 1335] OF THE UNITED STATES. 75C Mitchel v. United States. Georgia. By a subsequent treaty at Augusta, in 1783, and at Shoulderbone, in 1787, the obligation of the Indians to pay their debts is mutually recognised. By the treaty of Fort Schuyler, in 1788, the obligation of the Indians to make compensation for injuries committed by them, is also admitted, as is also the case in treaties with the United States. (1 Laws 371, 407, 409, 410.) It may, then, be considered as a principle established by the king, that the Indians were competent judges of the consideration on which they granted their lands ; that they might be granted for the payment of debts, and that this principle has been fully recognised by the United States. It can hardly be contended, that while such cessions by the Creeks were valid in Georgia, on one side of a then imaginary line, they would be void on the other side, in Florida, as to lands held under the same law, and by the same tenure. Whether the grants were made to the king directly, and the debts or injuries which formed their consideration be paid by him to the persons to whom they were due, or compensation made through him, or directly to the parties by a grant to them, must be a matter purely in the discretion of the king, or the officer whom he had authorized to accept or confirm the cessions by his license. Such were the relations between the Indians and Great Britain, as established by the proclamation of 1763, and confirmed by subsequent treaties between them, from 1765 to 1779, during the period of her dominion over the Floridas. This liberality and kindness to them, with respect for their rights of property in their lands or hunting-grounds, would seem to have arisen more from a sense of justice than motives of mere policy, when we consider the position of Great Britain between the treaty of 1763 and the commencement of the revolution. The undisputed sovereign of the whole territory from the Gulf of Mexico to that *of St. Lawrence, she had little to fear from the rival or hostile policy of Spain, the only neighbor to her colonies, and who had been humbled during the preceding war, and weakened to such a degree that she was no longer formidable in Louisiana. It was far different with Spain. On taking possession of the Floridas, after the independence of the United States had been established, with such a formidable, and rival, if not hostile, neighbor along the whole line of a narrow and weak province, the friendship of the Indians was a most important consideration. It would have been lost, by adopting towards them a less liberal, just or kind policy than had been pursued by Great Britain, or acting according to the laws of the Indies in force in Mexico and Peru. It was soon found necessary not only to respect their rights, as they had been enjoyed for twenty years before, but to place them on the permanent foundation of treaties and direct guarantees by the king. The most solemn assurances of both were given. A treaty was accordingly held in Pensacola, in 1784, with the Talla-poosas or Seminóles, the object of which was declared to be to make the subjects of the king enjoy the fruits of peace, by which the Indians acknowledge themselves his subjects, promising to obey the laws in those points which were compatible with their character and circumstances, conforming themselves to the usages and municipal customs which are established, observing their contracts with the traders in good faith, and promis* ing to observe “those orders exacted by reason, equity and justice,the principal basis of this congress.” By the 13th article, the officers of the crown promised, in the royal name, the security and guarantee of the lands 489 751 SUPREME COURT [Jan’y Mitchel v. United States. which the Indians hold, according to the right of property with which they possessed them, on the sole condition that they are comprehended within the limits of the king as the sovereign. In 1793, another treaty was held at the Walnut Hills, with the same Indians (among others), it was declared to he a treaty of friendship and warranty between them and the king, who was declared their immediate protector and mediator between them and the American states, in order to regulate their boundaries with them, and preserve the Indians in the possession of their lands. They were referred to the governor of West * Florida, “ as *representing the king in it,” by the 5th article, with J a stipulation in the 15th, that the points negotiated would be determined on by the commissaries of the king, with the approbation of the governor of that province, with the same force as if expressed in the treaty. By the 19th article, the Spanish and Indian nations approved and ratified all which was contained in it, and mutually promised and swore a mutual guarantee, the Indians declaring themselves under the protection of the king, he assuring them of his protection in all cases where they wanted it. This treaty also ratified all former treaties made from 1784. They were also approved by the king, and thereafter considered by the highest officers of the government in Florida, Louisiana and Cuba, as solemn guarantees to the Indians of all the rights they held under Great Britain. This right was occupancy and perpetual possession, either by cultivation, or as huntinggrounds, which was held sacred by the crown, the colonies, the states, and the United States; while the unauthorized settlement of the whites, on royal or proprietary lands, gave them not even the right of premption, unless by special laws, or custom and usage, sanctioned by proprietary officers. (See Wharton’s Dig. ut supra.) But Spain did not consider the Indian right to be that of mere occupancy and perpetual possession, but a right of property in the lands they held under the guarantee of treaties, which were so highly respected, that in the establishment of a military post, by a royal order, the site thereof was either purchased from the Indians, or occupied with their permission, as that of St. Mark’s. The evidence of Governor Folch, given in 1827, on the nature of the Indian title, is very strong and full, and the high respect paid to it by all the local authorities, so late as 1816, is strikingly illustrated in a report of the surveyor-general of West Florida. It seems, that in that year, an application was made for permission to buy lands on the other side of the Bay of Pensacola, to which the reply of the governor and subintendant was, if the lands are situated on the side from Yellow Water hitherward, “ I am pursuaded they belong to the Indians, even our own *careening-ground, which is in front of this town,” which, according -* to anothei* report from the surveyor-general, belonged, by the treaties with England, to the Indians, and who refers to the limited space of province left to the government, and the necessity of recurring to negotiations with the Indians to obtain some of the lands ; which are the best in the vicinity of Pensacola. When their right is thus regarded as to their lands in the immediate vicinity of the seat of government of the province, at so late a period, it cannot be doubted, that it was considered by the officers of the king as at least equally valid, in a far distant part, remote from any habitation of 490 1835] OF THE UNITED STATES. Mitchel v. United States. 763 the whites, save those connected with the house of Panton or Forbes. Although it may be conceded, as a principle of national law, that when Spain took possession of these provinces, the king could establish whatever form of government or system of laws he pleased ; consider, by the law of power, though not of right, the Indians as his subjects, or as mere savages, with whom there should be no relations but those of peace and trade, and who held no rights otherwise than at the pleasure of the government, or according to the laws in force in other provinces ; yet, it was his orders to his officers, to confirm those relations which had previously existed, to consider, treat and protect the Indians as his subjects, and to give them new and most solemn pledges of his protection, in all their rights; as individuals ; and as nations or tribes, competent parties to treaties of mutual guarantee, for his, as well as their protection, in those provinces, which had not before been done in any of his dominions. This was not done for slight reasons, but for such as would seem, in the opinion of all the great officers of the provinces, to have led to these treaties, and strong stipulations, as indispensable to secure their possession. But their obligation on the king did not depend on the motives which led to their adoption ; they bound his faith, and when approved by him, became the law of the provinces, by the authority of royal orders, which were supreme, and bound both king and Indians as contracting parties, in this respect, as nations on a footing of equality of right and power. The consequence was, that when once received into his protection as individuals, they *became entitled, by the law of nations and of the provinces, on the same footing as the other inhabitants thereof, to the benefits of the law and government, which, in every dominion, equally affect and protect all persons and all property within its limits, as the rule of decision, for all questions which arise there (Cowp. 208), as in this case it must be as to the right of property in the Indians. The situation of the Florida Indians was well known to the United States, as is most clearly indicated in the fifth article of the treaty with Spain, in 1795 : “-so that Spain will not suffer her Indians to attack the citizens of the United States, nor the Indians inhabiting their territory.” As thus considered by the United States and Spain, they were called “ her Indians,” while those in the United States were considered as the mere inhabitants of their territory, as the practical result of the respective treaties, which were recognised as subsisting ones between the then contracting parties and the Indians ; of the stipulations of which and their effect, the United States could not have been otherwise than well informed at that time, as to the right of property in Indian lands in the Floridas. When they acquired these provinces by the treaty of cession, it was not stipulated, that any treaty with the Indians should be annulled, or its obligation be held less sacred than it was under Spain ; nor is there the least reference to any intended change in the relations of the Indians towards the United States. They came in the place of the former sovereign, by compact, on stipulated terms, which bound them to respect all the existing rights of the inhabitants, of whatever description, whom the king had recognised as being under his protection. They could assume no right of conquest which may at any time have been vested in Great Britain or Spain, for they had been solemnly renounced, and new relations established between them, by solemn treaties; nor did they take possession on any 491 754 SUPREME COURT [Jan’y Mitchel v. United States. such assumption of right ; on the contrary, it was done under the guarantee of congress to the inhabitants, without distinction, of their rights of property, and with the continued assurance of protection, They might, as the new sovereign, adopt any system of government or laws for the territory, consistent with the treaty and the constitution ; but instead of doing so, all former laws and municipal regulations which were in existence at ^e cession, were ^continued in force. It was not necessary for the -I United States, in the treaty of cession, to enter into any new stipulation to protect and maintain the Indians, as inhabitants of Florida, in the free enjoyment of their property, or as nations, contracting parties to the treaties of Pensacola and Walnut Hills, with Spain, in 1784 and 1793 ; for by the sixth article of the Louisiana treaty between France and the United States, they had promised